EXHIBIT 10.19
AMENDED AND RESTATED AGREEMENT FOR
TECHNOLOGY TRANSFER, MANUFACTURE, DISTRIBUTION
AND AFFECTING PATENT, TRADEMARK AND COPYRIGHTS
* * * * *
DIGIDEAL CORPORATION
AND
PDS FINANCIAL
* * * * *
1. PARTIES, AMENDMENT AND RESTATEMENT, EFFECTIVE DATE
1.1 This Agreement is made by and between:
(a) DIGIDEAL CORPORATION, a Nevada corporation, whose business
address is 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxx, XX 00000, (hereinafter referred
to as "DIGIDEAL" for convenience); and,
(b) PDS FINANCIAL CORPORATION, a corporation organized under the
laws of Minnesota, and its subsidiaries and affiliates, whose address is 0000
XxXxxx Xxxxx, Xxx Xxxxx, XX 00000-0000, (collectively hereinafter referred to
as "PDS FINANCIAL" for convenience).
1.2 This Agreement amends, restates and replaces, in its entirety, the
following previously executed agreement by and between Digideal and PDS
Financial: (a) That Agreement for Technology Transfer, Manufacturer,
Distribution and Affecting Patent, Trademark and Copyrights dated June 16, 1999,
as amended. 1.3 The effective date of this Agreement shall be June 16, 1999
("Effective Date").
2. BACKGROUND
2.1 DIGIDEAL has acquired and has developed improved technology directed to
apparatuses and methods for playing live participant table card games using
automated electronic table card game systems with electronic card displays for
multiple participants. DIGIDEAL has devoted substantial time, effort and money
to that development and now intends to transfer technology to PDS FINANCIAL.
This transfer of technology is intended to facilitate and authorize PDS
FINANCIAL to additionally develop the planned product, to bring the planned
product to commercialization, and allow manufacture of the planned product.
2.2 As a result of DIGIDEAL's activities it now owns certain technology,
including patent application rights, copyrights, trademarks, trade secrets,
know-how and other proprietary information relating to such technology.
2.3 PDS FINANCIAL is involved with and interested in manufacturing and
promoting equipment and games used in the gaming industry. PDS FINANCIAL desires
to acquire the right, title and interest in the technology developed by or for
DIGIDEAL and to manufacture, distribute, sell, lease, use, service and promote
products utilizing such technology, or license or sublicense others to do so in
the Territory (as defined herein) and with specified Designated Products defined
herein.
2.4 It is the intent of the parties that Digideal will transfer technology
and proprietary rights to PDS Financial. It is also the intent of the parties
that PDS FINANCIAL will be solely responsible for manufacturing and assembling
the systems covered hereby. PDS FINANCIAL also will be programming the software,
which will be used as part of the systems and which will control operation of
the systems. PDS FINANCIAL will thus be controlling the manufacture of the
systems and controlling the distribution of the systems to the gaming industry
by either renting the systems or selling them to casinos or other users.
2.5 It is also the intent of the parties that PDS FINANCIAL shall control
the finished product and all software concerning the Designated Products to
better serve the industry and provide security in the production of the finished
product. To this end, various technical developments will be confidentially
disclosed to PDS FINANCIAL, and there will be a transfer of patent and
copyrights for the inventions and software associated with the technology being
transferred and used in the systems, which will be produced and distributed by
PDS FINANCIAL.
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2.6 In consideration of the premises, covenants and agreements contained
herein, and intending to be legally bound hereby, the parties hereto have agreed
to the terms and conditions provided in this Agreement.
3. DEFINITIONS AND SUBJECT MATTER
3.1 ORIGINAL PATENT APPLICATION - DIGIDEAL is the owner of all right,
title, and interest in certain inventions described in a U.S. Patent Application
Serial No. 09/041,373 entitled "Automated System For Playing Live Casino Table
Games Having Tabletop Changeable Playing Card Displays and Play Monitoring
Security Features", filed March 11, 1998. Such patent application shall be
referred to as the original patent application.
3.2 FIRST C-I-P PATENT APPLICATION - DIGIDEAL is also the owner of all
right, title, and interest in certain inventions described in a U.S. Patent
Application Serial No. 09/159,813 entitled "Automated System For Playing Live
Casino Table Games Having Tabletop Changeable Playing Card Displays and Play
Monitoring Security Features", filed September 23, 1998. Such patent application
shall be referred to as the first C-I-P patent application. The first C-I-P
patent application also includes a related Patent Cooperation Treaty,
application serial No. PCT/US99/05361, filed March 11, 1999 of same title and
disclosure as the first C-I-P patent application.
3.3 SECOND C-I-P PATENT APPLICATION - DIGIDEAL is also the owner of all
right, title, and interest in certain inventions described in a U.S. Patent
Application Serial No. 09/301,267 entitled "Automated System For Playing Live
Casino Table Games Having Tabletop Changeable Playing Card Displays and Play
Monitoring Security Features", filed April 27, 1999. Such patent application
shall be referred to as the second C-I-P patent application. The Second C-I-P
patent application also includes a related Patent Cooperation Treaty,
Application Serial No. PCT/US99/22192, filed September 23, 1999 of same title
and disclosure as the Second C-I-P patent application.
3.4 ANCILLARY PATENT APPLICATION - DIGIDEAL is also the owner by assignment
of all right, title, and interest in certain inventions described in a U.S.
Patent Application Serial No. 09/215,391 filed December 18, 1998 entitled
"Method of Playing Blackjack with a Side Wager". Such patent application and any
resulting continuations or divisional are referred to herein as the ancillary
patent application.
3.5 THE INVENTIONS - The term "The Inventions" (both capitalized) will
include those inventions described in the original patent application and the
ancillary patent application. The Inventions shall also include those inventions
which are disclosed in said original patent application, the ancillary patent
application and the first and second C-I-P applications, whether there are
claims in such patent applications when filed, or if such patent applications
are later amended to include such claims. The Inventions shall also include
inventions which are the subject of any further patent application or patent
applications which are either a continuation or divisional patent application
based upon the original patent application, the ancillary patent application or
said C-I-P applications, which lawfully claims patent rights which have a valid
claim or right to claim priority based upon the original patent application, the
ancillary patent application or said C-I-P applications. Any subsequent
continuation-in-part applications filed based upon said original patent
application or the ancillary patent application will be considered part of The
Inventions to the extent of any patent claims contained therein are issued as a
patent from a subsequent continuation-in-part application and are supportable
upon the original disclosures
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of the original patent application, ancillary patent application or the first
and second C-I-P applications, or to the extent of the issued patent claims
based upon such subsequent continuation-in-part application have a scope which
falls within the scope of any other patent claim covering The Inventions which
is supportable upon the disclosure of the original patent application, the
ancillary patent application, or first or second C-I-P applications.
3.6 THE INVENTIONS, ADDITIONAL ASPECTS
(a) The Inventions also includes improvements as specifically
provided for in part 47.
(b) The Inventions also includes any inventions included in any
patent application filed on Designated Technology as defined hereinafter.
3.7 THE PATENTS - The original patent application, any patents resulting
from said original patent application either directly or indirectly, and any
other patent applications or patents granted on The Inventions will be
referred to herein as "The Patents".
3.8 THE PATENT RIGHTS - The term "Patent Rights" (both capitalized)
shall refer to any patent rights on The Inventions which issue in patents
which have legal effect within the Designated Territories.
3.9 DESIGNATED TECHNOLOGY - In addition to the technical information
contained in The Patents, other related technical and business information
have also been developed by DIGIDEAL generally relating to The Inventions
described in the above-referenced patent applications and prototypes and
subsequent designs developed since the filing of the original patent
application. Exclusive rights under the laws of trade secrets and know-how
protect much or all of such proprietary information. The Inventions, all
Patent Rights which may be granted thereon, and related trade secrets,
know-how and other proprietary information are under this Agreement and are
hereinafter referred to for convenience and brevity as "Designated
Technology".
3.10 DESIGNATED TECHNOLOGY RIGHTS - DIGIDEAL has exclusive property
rights or claims to exclusive property rights under the laws of the United
States and foreign countries in such Designated Technology including
potential patent rights (Patent Rights), copyrights (The Copyrights), trade
secret rights, know-how rights and technical information rights. Such
exclusive rights shall herein be referred to collectively as the Designated
Technology Rights.
3.11 THE COPYRIGHT WORKS - DIGIDEAL may provide or hereafter develop,
in-full or in-part, works in which copyrights exists. These works shall be
referred to as "The Copyright Works" and may include certain writings,
computer software, business plans, technical descriptions, drawings,
graphical works, promotional materials, writings, videos, sound recordings
and/or other works produced by or for DIGIDEAL which relate to the Designated
Technology and the business related thereto. Such works are also under this
Agreement and are hereinafter referred to as "The Copyright Works". The
subject matter considered within The Copyright Works may include proprietary,
trade secret or know-how information, which fall within the definition of
Designated Technology. Additionally, there may be works within The Copyright
Works, which exist for the written, graphic or other expression, which is
legally and conceptually separable from the technological content being
expressed. Such expressions are protected under The Copyrights associated
with The Copyright Works, and the Copyrights associated therewith may outlive
any other exclusive rights in the Designated Technology.
3.12 THE COPYRIGHTS - The copyrights attendant to The Copyright Works
shall herein be referred to as "The Copyrights" (both capitalized).
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3.13 DESIGNATED TRADEMARKS - DIGIDEAL further desires to grant rights in
certain trademarks, which may be created for use in connection with the
Designated Technology and which are more particularly described on APPENDIX A
to this Agreement. Any such trademarks are agreed by the parties to be
considered under this Agreement, and herein referred to as "Designated
Trademarks". Further trademarks may be added to the subject matter of
Designated Trademarks through written Trademark Addenda submitted by DIGIDEAL
and accepted by PDS FINANCIAL.
3.14 DESIGNATED TRADEMARK RIGHTS - The rights associated with such
Designated Trademarks are the "Designated Trademark Rights".
3.15 DESIGNATED PRODUCTS - Products which use the Designated Technology
are herein referred to as "Designated Products". Use of the Designated
Technology for purposes of this definition shall include products, which
incorporate designs, which are based on the Designated Technology, products,
which use any processes included in the Designated Technology, and products,
which are produced using any new production processes included in the
Designated Technology.
3.16 DESIGNATED TERRITORY - Part 11 defines the term Designated
Territory as used in this Agreement.
3.17 TRANSFERRED ASSETS - The Patents, The Patent Rights, The Designated
Technology, The Designated Technology Rights, The Copyrights, The Copyright
Works, The Designated Trademarks, and The Designated Trademark Rights are
hereinafter collectively referred to herein as the "Transferred Assets".
4. OBJECTIVES
4.1 PDS FINANCIAL - PDS FINANCIAL wishes to obtain Designated Technology,
including proprietary information embodying and describing the Designated
Technology and to obtain and/or license the right, title and interest under The
Transferred Assets for purposes of conducting business using the Transferred
Assets in the Designated Territory and with specified Designated Products
defined herein. With regard to any licensed rights, PDS FINANCIAL also desires
to obtain authority to sublicense others who will participate in the
distribution of the Designated Product.
4.2 DIGIDEAL - DIGIDEAL wishes to transfer technology to PDS FINANCIAL and
gain revenue from the commercialization of Designated Products.
4.3 TRANSFER - DIGIDEAL does hereby sell, convey, transfer, assign, and
deliver to PDS, its successors and assigns, the Transferred Assets with
specified Designated Products defined herein.
5. SCOPE OF RIGHTS LIMITED TO SPECIFIED DESIGNATED PRODUCTS
5.1 The rights granted to PDS FINANCIAL hereunder shall apply to Designated
Products which are included within the following definition, or as otherwise
agreed by the parties hereto in writing:
Gaming systems, which utilize automated electronically controlled visual
displays which during the play of games include traditional playing card
depictions or depictions of cards with slot symbols or merely slot
symbols., The symbols are displayed by said visual displays, said gaming
systems being adapted for play by at least
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one dealer and at least one player who are physically present in a single
room to play a card game using such playing card depictions.
The above definition includes three systems under development, which are
trademarked as "Digital 21", "SlotJack" and "Bonanza BlackJack".
5.2 The rights granted herein also do not extend to any new products, as
may be developed by DIGIDEAL, beyond the specification contained in the above
paragraph 5.1 unless agreed to in writing by DIGIDEAL. The licenses back to
DIGIDEAL are provided in the August 30, 2000 Confidential Software License
Transfer Agreement apply to new products developed by DIGIDEAL.
5.3 Nothing herein shall be construed as to prohibit PDS Financial from
developing any other or new products utilizing the Transferred Assets.
6. GRANT OF EXCLUSIVE RIGHTS
6.1 DIGIDEAL hereby grants to PDS FINANCIAL certain exclusive rights as
detailed below within the Designated Territories (see part 11):
(a) The exclusive rights to manufacture, assemble, produce, program,
reprogram, market, promote, lease, use, sell, service, repair, recover
(repossess), and remanufacture products which are within The Transferred Assets
and which are otherwise within the scope of the rights being granted in the
Designated Products under this Agreement;
(b) The exclusive rights to practice or otherwise use any methods or
processes which are within The Transferred Assets and which are otherwise within
the scope of the rights being granted in the Designated Products under this
Agreement;
(c)
6.2 The rights provided in this part include exclusive rights which are
within The Transferred Assets and which are otherwise within the scope of the
rights being granted in the Designated Products under this Agreement.
7. AGREEMENT TO TRANSFER RIGHTS
7.1 DIGIDEAL agrees to transfer to PDS FINANCIAL rights as provided for in
section 8, subject to the following terms, conditions and limitations.
7.2 The provisions of this section involving assignment of ownership rights
to PDS FINANCIAL shall only apply to the United States of America and are
subject to the limitations of part 12.
7.3 DIGIDEAL will transfer to PDS FINANCIAL the Transferred Assets
subject to the obligation of section 8 immediately after being notified by
PDS FINANCIAL, and conditioned upon full payment to DIGIDEAL of the amounts
owed by PDS FINANCIAL under the provisions of section 13.1(a). Notification
by PDS FINANCIAL will be in writing. and provide: a) a statement that
transfer of the property right or rights is needed in accordance with this
Agreement; and, b) an explanation that at least one of the following events
has occurred which triggers this provision for transfer:
(a) Upon PDS FINANCIAL submitting the Designated Product in an
effort to obtain the license or licenses from the Nevada Gaming Commission,
which allows PDS FINANCIAL to exercise the rights provided for in part 6.1(a);
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(b) If PDS FINANCIAL is in production and actively distributing the
Designated Product in any jurisdiction within the Designated Territory.
7.4 Prior to any transfer of one or more patents from DIGIDEAL to PDS
FINANCIAL which comprise The Patents, PDS FINANCIAL shall execute a mortgage of
patent rights in favor of DIGIDEAL. Such mortgage of patent rights shall be
executed by a corporate officer of PDS FINANCIAL, be notarized, and shall bear
the corporate seal, if a seal is available. The mortgage of patent rights shall
be delivered in original form to DIGIDEAL or their agent who shall have the
mortgage of patent rights officially recorded with the U.S. Patent and Trademark
Office, or any other appropriate patent office or other authority relating to
the Designated Territory.
7.5 The mortgage shall secure the obligations owed by PDS FINANCIAL to pay
DIGIDEAL under the terms of this Agreement. Failure of PDS FINANCIAL to make all
payments owed to DIGIDEAL under this Agreement shall be a default, which can be
remedied by foreclosure upon the mortgage of patent rights. See Appendix B to
this Agreement.
8. SUBJECT MATTER UNDER OBLIGATION TO TRANSFER
8.1 The obligation to transfer rights as provided for in part 7 shall apply
to the Transferred Assets.
9. OPTION TO REPURCHASE RIGHTS
9.1 DIGIDEAL shall have an option to repurchase any and all of the
Transferred Assets, which have been transferred herein. The option to repurchase
shall be exercisable upon the following conditions:
(a) If PDS FINANCIAL loses its license with the Nevada Gaming
Commission or other applicable authority of the state of Nevada with regard to
manufacturing or distributing Designated Product, and PDS FINANCIAL cannot
achieve reinstatement within one (1) year after losing said license.
(b) If PDS FINANCIAL loses its license with three (3) or more
gaming commissions of states other than the state of Nevada with regard to
manufacturing or distributing Designated Product, and PDS FINANCIAL cannot
achieve reinstatement within one (1) year in at least one of the three states.
(c) If PDS FINANCIAL is terminated under the provisions of this
Agreement.
9.2 The option to repurchase shall be exercised by notifying PDS
FINANCIAL in writing that DIGIDEAL wants to exercise the option provided for
in this section. DIGIDEAL shall tender payment in the amount of One Thousand
Dollars ($1,000) along with the written notification that it is exercising
this option. PDS FINANCIAL shall then execute an assignment of the
Transferred Assets for which the option is being exercised. The option shall
apply to one or more of the Transferred Assets.
10. RESERVED
11. GEOGRAPHICAL SCOPE OF THIS AGREEMENT
11.1 The assets transferred under this Agreement shall apply to the
following Designated Territories except as otherwise specifically limited -
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(a) The United States of America (exclusive);
(b) The Caribbean, Lesser Antilles, Bahamas, and Cruise ships that
dock in the United States of America (non-exclusive).
12. RESERVED
13. LICENSE FEES
13.1 PDS FINANCIAL shall pay DIGIDEAL license fees totaling $xxx Dollars
($xxx U.S.).
(a) A first portion of the license fees shall be paid in the form
of a single payment in the amount of xxx Dollars ($xxx U.S.). The first
portion payment must be paid at the time this Agreement is signed by both
parties.
(1) The first portion payment must be fully received by
DIGIDEAL without dishonor or other impediment to DIGIDEAL's complete
ownership thereof no later than ten (10) days after the effective date of
this Agreement, or else this Agreement shall be automatically void AB INITIO.
(2) The first portion license fee is subject to refund during
a waiting period of thirty days (30) beginning on the effective day of this
Agreement. Such refund will be made if PDS FINANCIAL demonstrates a
reasonable basis for terminating the Agreement based upon further analysis of
patent issues. If such refund is requested then the Agreement will terminate
without cure unless the parties subsequently reinstate the Agreement in
writing. Refund shall be made by DIGIDEAL within ten (10) days of demand by
PDS FINANCIAL in writing.
(3) The first portion license fee is subject to refund if the
Nevada Gaming Commission does not approve the Designated Product for
manufacture or sale within two years from the effective date of this
Agreement. If PDS FINANCIAL elects to have this amount refunded, then
DIGIDEAL shall be empowered to terminate this Agreement without any
opportunity to cure and without any waiting period. If desired, DIGIDEAL can
terminate this Agreement after PDS FINANCIAL seeks refund and such
termination will become effective upon payment of the refund for the first
portion license fee. Any fees actually paid for other portions of the license
fee shall not be subject to refund.
(b) A second portion of the license fees shall be paid in the form
of a single payment in the amount of xxx Dollars ($xxx U.S.) which shall be
paid within five (5) days after the Nevada Gaming Commission approves the
Designated Product for manufacture or sale.
(c) A third portion of the license fees shall be paid in the form
of a single payment in the amount of xxx Dollars ($xxx U.S.) which shall be
paid within five (5) days after any gaming commission or equivalent authority
empowered by any state government other than the state of Nevada, approves
the Designated Product for manufacture or sale in a state other than Nevada.
The second and third portion payments may occur in time in any order without
effect upon these independent payment obligations. xxx Confidential treatment
requested pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.
(d) A fourth portion of the license fees shall be paid in the
amount of xxx Dollars ($xxx U.S.). The fourth portion shall be paid by xxx.
Such portion of gross revenues shall be set-aside until the fourth portion of
the license fees and any other portions of the license fees are fully paid.
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13.2 All licensee fees paid are non-refundable except as provided for above
in connection with the first portion of the license fees.
14. GRANTING OF SUBORDINATE RIGHTS
14.1 PDS FINANCIAL shall have the right to license or sublicense one or
more of the Transferred Assets transferred to PDS FINANCIAL under this
Agreement, subject to the following conditions and limitations.
14.2 Any rights granted by PDS FINANCIAL to third parties must be within
the scope of the Transferred Assets transferred to PDS FINANCIAL hereunder. If
the Transferred Assets of PDS FINANCIAL hereunder are subject to termination or
diminishment in any respect, then any grant of rights by PDS FINANCIAL to third
parties must similarly be subject to termination or diminishment in the same
regard. Any failure on the part of PDS FINANCIAL to adequately provide
limitations in agreements with third parties shall not work to limit DIGIDEAL's
rights under this Agreement and shall be considered a material breach under this
Agreement.
14.3 PDS FINANCIAL warrants that it will only enter into agreements with
any third parties which contain full provisions limiting the third party's
rights relative to DIGIDEAL. PDS FINANCIAL further warrants that in any and all
agreements with third parties granted under this Agreement, that language will
be included indicating that the Agreement has been entered into in furtherance
of an agreement with DIGIDEAL and that Digideal may have rights which affect the
agreement with third parties and acknowledging that rights held by DIGIDEAL may
affect rights of any such third party.
14.4 PDS FINANCIAL shall have the authority to grant subordinate rights
allowing third parties to exclusively or non-exclusively practice the following
rights within the scope of the Transferred Assets. Any grant of subordinate
rights shall only cover a portion of the Designated Territory, or a portion of
the commercial areas contained within the Designated Territory and authorized
field of use limitations provided for herein.
14.5 PDS FINANCIAL is empowered to grant subordinate rights falling within
the following rights:
(a) Distribute, lease, use, service and promote products or practice
methods protected under The Transferred Assets;; and
(b) Practice methods contained in the Designated Technology.
14.6 Part 11 shall apply to define the geographical scope of the
subordinate rights granted in this part.
14.7 The grant by PDS FINANCIAL of any license or sublicense hereunder will
be limited in time to no more than five (5) calendar years.
xxx Confidential treatment requested pursuant to Rule 24b-2 of the
Securities Exchange Act of 1934, as amended.
14.8 Any licensee or sublicensee of PDS FINANCIAL, which participates
in a breach of this Agreement shall be subject to conversion or termination
under the same terms as are applicable to PDS FINANCIAL.
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14.9 The grant of all or substantially all of the Transferred Assets by
PDS FINANCIAL to another party shall obligate PDS FINANCIAL to pay DIGIDEAL
one-half of any compensation received therefrom .
14.10 Any licensee or sublicensee granted rights under PDS FINANCIAL
must be fully licensed with any and all gaming commissions having jurisdiction
over the activities of the licensee or sublicensee as authorized under this
Agreement.
15. RESERVED
16. RESERVED
17. RESERVED
18. TRADEMARKS
18.1 PDS FINANCIAL does not require any further approvals to use the
Designated Trademarks in connection with the Designated Products.
18.2 If PDS FINANCIAL wishes to use the Designated Trademarks with any
products different from the Designated Products, then PDS FINANCIAL shall notify
DIGIDEAL in writing prior to the initial distribution of any such products which
are to be marked with the Designated Trademarks. Any such notification shall
explain the nature of the new products to be distributed and the planned date of
first distribution.
19. MARKING OF TRADEMARKS
19.1 To the extent there will be any marking of Designated Trademarks by
PDS FINANCIAL under this Agreement, PDS FINANCIAL agrees to xxxx all labels,
advertising, packaging and other instances of use of the Designated Trademarks
with either the notification (TM) or with the symbol consisting of an R within a
circle (R) to indicate such trademarks are registered, if and when such
trademarks do become registered by the United States Patent and Trademark
Office. Usage of the Designated Trademarks by PDS FINANCIAL or any sublicensee
in the U.S. and/or any foreign country shall comply with all established
practices of such countries for notifying or indicating that the Designated
Trademarks are claimed as exclusive.
20. RESERVED
21. PROTOTYPE
21.1 DIGIDEAL agrees to transfer a currently developed prototype unit of
the Designated Product along with associated software and other key technical
information needed for operation within thirty (30) days after the date of this
Agreement.
21.2 The prototype shall be used for testing and as is otherwise
appropriate to the project, but is not intended to be sold or placed for
rentals.
22. TRANSFER OF SUPPORT DOCUMENTATION
22.1 DIGIDEAL shall disclose to PDS FINANCIAL at its chosen location,
equipment and documentation, including without limitation, drawings, books,
setup information, maintenance
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information, table mounting layouts, software, hardware, source codes, and
related materials needed by PDS FINANCIAL to manufacture, market, promote,
lease, service, repair, and remanufacture the Designated Product.
22.2 All Designated Technology in addition to the prototype covered in part
21, which is obligated to be transferred to PDS FINANCIAL will be transferred no
later than thirty (30) days after the date of this Agreement.
23. RESERVED
24. RESERVED
25. COSTS OF PRODUCTION FOR DESIGNATED PRODUCT
25.1 PDS FINANCIAL will have actual and direct costs of production in
assembling and manufacturing Designated Product. It is expected that the actual
and direct costs of production will be in the range of xxx Dollars ($xxx) to xxx
Dollars ($xxx), per Designated Product system. The actual and direct costs of
production will be determined by the actual costs of all components.
25.2 Also included in actual and direct costs of production are the direct
costs associated with assembling, packaging and shipping components for the
Designated Product from various vendors to PDS FINANCIAL. The actual and direct
costs of production shall not include general administration, space and
facilities charges, installation and setup, and overhead associated with PDS
FINANCIAL's performance under this Agreement.
26. INSTALLATION AND SETUP OF DESIGNATED PRODUCT
26.1 PDS FINANCIAL will also have installation and setup costs associated
with work done either by PDS FINANCIAL or its sublicensee who is performing
installation and setup of the Designated Products.
26.2 Installation and setup costs are the actual costs of installation and
setup as is charged to PDS FINANCIAL by a sublicensee, or actual time spent by
employees of PDS FINANCIAL in performing these functions. Installation and setup
shall not include general and administrative expenses, space and facilities
charges, or other overhead.
27. INITIAL CHARGES
27.1 The allowed costs of PDS FINANCIAL for actual and direct costs of
production and for installation and setup will herein be termed the initial
charges. The initial charges represent the marginal costs of production,
installation, and warranty for parts (for one year). They do not include
administrative, sales, marketing, non-specific distribution costs, or servicing
costs. Freight from PDS FINANCIAL to PDS FINANCIAL customers is not an initial
charge and shall be paid by PDS FINANCIAL.
xxx Confidential treatment requested pursuant to Rule 24b-2 of the
Securities Exchange Act of 1934, as amended.
28. REVENUE FROM RENTALS AND SALES
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28.1 PDS FINANCIAL or any authorized licensees or sublicensees shall
then place the Designated Product with casinos or other users who shall pay
rentals or purchase the units.
28.2 The parties contemplate that rentals for the Designated Product
will be in the range of xxx Dollars ($xxx U.S.) to xxx Dollars ($xxx U.S.)
per month.
28.3 Gross income from rentals or sales of the Designated Product shall
be divided between PDS FINANCIAL and DIGIDEAL in the following manner:
(a) xxx
(b) After the payment of all the License Fees to DIGIDEAL as
provided in section 13.1(d), then the following shall apply:
(1) At the time each unit of Designated Product is placed,
then PDS FINANCIAL will pay DIGIDEAL XXX.
(2) Gross revenue received from customers of the Designated
Products shall be divided in the following manner with respect to each
Designated Product placed:
(a) PDS FINANCIAL shall first recover a marketing and
training allowance equal to xxx per Designated Product placed;
(b) PDS FINANCIAL shall second recover initial charge
payments equal to $ xxx per month per Designated Product; the initial charge
payments made on each Designated Product shall continue at such monthly rate
until PDS FINANCIAL has recouped all initial charges for that particular
Designated Product;
(c) The rentals, sales revenue or other revenue, or other
rental, sale revenue received thereafter shall be xxx.
(d) Any agreement between PDS FINANCIAL and any licensee
or sublicensees shall not reduce the amount received by DIGIDEAL which will
remain the same no matter what licensing or sublicensing PDS FINANCIAL may
choose to employ or not employ in furtherance of its obligations and
responsibilities under this Agreement.
28.4 The rental or sales revenue received in connection with Designated
Product shall be measured as the true price paid by the user, e.g. casino or
other user. This applies whether PDS FINANCIAL has appointed any licensee or
sublicensee who is between or in any manner receives revenue from the sale or
rental of Designated Product.
29. HANDLING OF REVENUE FROM DESIGNATED PRODUCTS
29.1 PDS FINANCIAL shall provide any needed billing of customers for the
rental and sales revenue, and receive payments constituting the revenue from
rents, sales or other revenue or proceeds from Designated Product placed by
PDS FINANCIAL or its licensees.
29.2 PDS FINANCIAL shall deposit DIGIDEAL's share of such rents in an
escrow account within ten (10) days from the time PDS FINANCIAL receives any
such payments.
xxx Confidential treatment requested pursuant to Rule 24b-2 of the
Securities Exchange Act of 1934, as amended.
30. REPORTING OF REVENUE AND DESIGNATED PRODUCTS
30.1 PDS FINANCIAL shall account in writing for all receipts of revenue and
any refunds of revenue in a regular accounting report to DIGIDEAL which shall be
done at least once per calendar month, or on a more frequent basis if PDS
FINANCIAL desires. The regular accounting reports shall list all Designated
Product, which have been manufactured by PDS FINANCIAL since
Page 12
the last regular accounting report. It will also show all Designated Product,
which has been placed for rental and the amount of revenue billed and the
revenues actually received on each Designated Product, or group of Designated
Product if multiple systems are at one facility. Such regular accounting report
shall also show all sales, which have been made, and the sale prices agreed to,
amounts billed and amounts actually received as revenue in connection with such
sales. The regular accounting report will also show all Designated Product,
which has been returned, either as returned rentals or returned sales. Such
monthly accounting report shall identify the Designated Product by serial number
and indicate the place of location, the organization or person who is in
possession of the Designated Product and the agreed rental rate. Still further
the accounting will indicate the actual initial charge associated with each
Designated Product listed and the amount of rent which has previously been
recovered and the amount of any setoff which has been taken by PDS FINANCIAL in
connection with recovery of the initial charge.
30.2 DIGIDEAL's share of all rental and sales revenue received by PDS
FINANCIAL shall be kept separate from regular operating expenses of PDS
FINANCIAL until paid out to DIGIDEAL. Payments to DIGIDEAL shall be accompanied
with a regular accounting report which has been prepared accounting for all
funds owed to DIGIDEAL and showing the payments made and the associated rents
and sales receipts for which the payments to DIGIDEAL are being made.
30.3 The regular accounting report and payments to DIGIDEAL and PDS
FINANCIAL shall be made no later than the fifteenth (15th) day of the month
immediately following the calendar month for which the accounting report covers
the transactions.
30.4 Rent received by PDS FINANCIAL will first be used as authorized herein
to satisfy initial charges, until the full amount of the initial charge is
recovered by PDS FINANCIAL. After PDS FINANCIAL has recovered the initial
charge, then one-half of all revenue received will be paid to DIGIDEAL and
one-half shall be paid to PDS FINANCIAL. Revenue shall be measured at the
customer level, e.g. casino or other user's amount of charge and shall not be
diminished to cover the fees associated with the activities of licensees or
sublicensees.
31. OTHER TYPES OF REVENUE
31.1 Revenue from sales or rentals compensated for in a fashion other than
monetary payment, franchise fees, sublicensing fees or other revenue or value
received by PDS FINANCIAL in connection with distribution of Designated Product
shall be treated in the same manner as rent.
31.2 If sales are made on an installment basis, then the installment
payments are treated similar to rental payments. Payments on sales are
considered made when received by PDS FINANCIAL and are handled in a similar
fashion as specified with regard to rent payments.
32. OWNERSHIP OF DESIGNATED PRODUCT
32.1 If Designated Product is rented, then the Designated Product shall be
owned solely by PDS FINANCIAL.
32.2 The disposition, retirement, remanufacture or other use of Designated
Product returned from rental use shall be determined solely by PDS FINANCIAL.
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32.3 The disposition, retirement, remanufacture or other use of Designated
Product returned from a purchase customer shall be determined solely by PDS
FINANCIAL.
32.4 Designated Product, which is sold to customers, shall be owned by the
purchasing customer or a subsequent purchaser unless returned to PDS FINANCIAL.
33. CURRENCY AND MONEY
All monetary amounts specified in this Agreement are in United States
Dollars.
34. ACCOUNTING AUDITS
34.1 DIGIDEAL shall have the right to inspect with three (3) business days
prior notice, the records of PDS FINANCIAL and all licensees or sublicensees
which are relevant to indicate the amount of rental revenue, sales revenue, or
other compensation which is owed to DIGIDEAL or otherwise to be paid in
connection with this Agreement.
34.2 DIGIDEAL shall also have the right to inspect the records of PDS
FINANCIAL and all licensees or sublicensees which are relevant to the quantity
of Designated Product produced by or for PDS FINANCIAL and all licensees or
sublicensees.
34.3 The rights to inspect indicated herein include the right to have an
audit conducted by an appropriate auditing or accounting firm. If an audit
indicates that PDS FINANCIAL has failed to pay amounts rightfully owed to
DIGIDEAL due to careless or inappropriate behavior or accounting, then the cost
of the audit shall be fully paid by PDS FINANCIAL or the licensee or sublicensee
who owes such amount.
34.4 The parties hereto agree that there may be a yearly audit conducted at
DIGIDEAL's request for purposes of confirming the amounts owed DIGIDEAL in
connection with this Agreement. The parties will share equally in bearing the
costs of such a yearly audit.
35. SALES VERSUS RENTALS
35.1 The parties hereto contemplate and it is their stated intent that most
or all placement of Designated Products will occur on a rental basis.
35.2 The parties hereto also recognize that in some jurisdictions there may
be applicable regulations which prohibit or render impractical the rental of
Designated Products, and therefore agree that PDS FINANCIAL can engage in direct
sale of Designated Products to casinos or other users.
35.3 The decision whether to rent or sell Designated Product is determined
solely by PDS FINANCIAL.
36. LICENSING OR SUBLICENSING
36.1 Any licenses or sublicenses granted by PDS FINANCIAL shall be limited
to the scope of the Transferred Assets transferred to PDS FINANCIAL and subject
to the same terms, conditions and obligations.
36.2 PDS FINANCIAL shall not enter into any agreement with any purported or
actual licensee or sublicensee which fails to include clear and specific
language indicating all limitations imposed upon PDS FINANCIAL under this
Agreement as it affects the rights to be exercised by any such licensee or
sublicensee.
Page 14
36.3 If PDS FINANCIAL receives monetary or other remuneration or value in
addition to or lieu of rental fees or sales revenue in connection with
manufacture and distribution of Designated Products, then PDS FINANCIAL shall
report such revenue and it shall be treated in the same manner as rental
revenue. This shall also apply to any franchise fees or other fees paid by any
licensee or sublicensee for the right to perform under this Agreement.
36.4 If PDS FINANCIAL delegates any responsibilities under this Agreement
to a licensee or sublicensee, then the monetary effect of any such delegation
will not diminish the revenue which DIGIDEAL would otherwise have received if
the delegation had not occurred and PDS FINANCIAL instead performed directly
under this Agreement.
36.5 All licenses or sublicenses shall include provisions so obligating the
licensees or sublicensees. If any such licensee or sublicensee receives benefits
under or equivalent to those granted to PDS FINANCIAL, and PDS FINANCIAL fails
to pay, then the licensee or sublicensee receiving such benefits shall pay the
obligation. Any such licensee or sublicensee shall only be obligated with
respect to the obligations or benefits received by that licensee or sublicensee
and not obligations or benefits granted to other licensees or sublicensees or
portions retained by PDS FINANCIAL.
37. CERTIFYING AND LICENSING OF DESIGNATED PRODUCTS
37.1 PDS FINANCIAL shall submit Designated Product developed hereunder to
any applicable gaming commission or testing laboratory as needed to gain
approval, licensing, or other certification as required or deemed desirable
prior to placement of the Designated Products for rental or sale, if such is
required. Exemplary authorities in either: a) the state of Nevada, or b) the
states of New Jersey and Mississippi, or Gaming Laboratories International
(individually, "Certifying Authority", collectively, "Certifying Authorities").
37.2 PDS FINANCIAL shall incur all costs of licensing and certification of
the Designated Product.
37.3 PDS FINANCIAL and DIGIDEAL will cooperate as needed to satisfy any
requirements imposed by a gaming commission or other regulatory authority having
jurisdiction over the manufacture or distribution of Designated Products.
37.4 Notwithstanding any other provision in this Agreement to the contrary,
PDS FINANCIAL may terminate this Agreement at any time without added obligation
or liability to DIGIDEAL if, in the judgment of PDS FINANCIAL's Compliance
Committee, the relationship with DIGIDEAL or DIGIDEAL's principals could subject
PDS FINANCIAL to disciplinary action or cause PDS FINANCIAL to lose or become
unable to obtain or reinstate any federal, state and/or foreign registration,
license or approval material to PDS FINANCIAL 's business or the business of any
PDS FINANCIAL subsidiary.
38. LICENSING WITH GAMING COMMISSIONS
38.1 PDS FINANCIAL will be responsible for gaining or coordinating
licensing for both PDS FINANCIAL and the Designated Product by the various
gaming commissions or other applicable gaming authorities who are empowered to
regulate manufacture, distribution,
Page 15
placement, servicing, repair and use of the Designated Product in the
jurisdictions included within the Designated Territories.
38.2 PDS FINANCIAL shall incur all costs for licensing of PDS FINANCIAL as
a manufacturer, distributor or other function provided for in this Agreement as
required by the Certifying Authorities. PDS FINANCIAL will pay all fees charged
by the gaming authorities with regard to gaining licensing of PDS FINANCIAL or
Designated Product. In the event it is determined that DIGIDEAL must be licensed
in any or all jurisdictions, DIGIDEAL shall bear all such costs.
38.3 PDS FINANCIAL shall keep DIGIDEAL reasonably apprised of official
actions and significant communications to and from Certifying Authorities
concerning licensing of PDS FINANCIAL or Designated Product.
39. INSTALLATION, SERVICING AND MAINTENANCE OF DESIGNATED PRODUCT
39.1 Designated Product which has been placed for rent or sold will be
installed by PDS FINANCIAL or a licensee or sublicensee appointed by PDS
FINANCIAL.
39.2 PDS FINANCIAL will also perform servicing, maintenance and repair of
Designated Product to maintain the Designated Product in normal and satisfactory
operation. PDS FINANCIAL also has the option of training personnel of a casino
or other user of the Designated Products to provide servicing and maintenance
thereof.
39.3 PDS FINANCIAL agrees to maintain an adequate number of repair
facilities to adequately service the Designated Product, and in any case at
least one repair facility for servicing and maintenance of Designated Product.
39.4 PDS FINANCIAL also agrees to maintain an inventory of spare parts as
needed to fulfill the intended maintenance to be performed by PDS FINANCIAL.
40. RESERVED
41. CONFIDENTIALITY OF DISCLOSURE AND DESIGNATED TECHNOLOGY
41.1 PDS FINANCIAL agrees that all disclosure from DIGIDEAL to PDS
FINANCIAL under this Agreement is done in confidence except for the information
contained in The Patents which issue or are published, effective upon the date
of issuance or date of publication. All materials embodying Designated
Technology shall be maintained in confidence as a trade secret and not disclosed
except as expressly allowed in this Agreement. Incidental writings and
information included in the materials describing and disclosing Designated
Technology are not bound to secrecy and nondisclosure if such writings and
information are generally known in the trade or if such writings or information
later become generally known in the trade or to the public through no fault of
PDS FINANCIAL, and such writings and information do not contain confidential
information concerning the Designated Technology.
41.2 Both parties agree that the other party can disclose confidential
information contained in the Designated Technology to: gaming regulatory
agencies needing information in connection with obtaining and complying with
regulations under their jurisdiction, licensees, sublicensees, investors,
financial institutions who are considering loans or investments in the other
party. PDS FINANCIAL grants DIGIDEAL the right to provide confidential
information specifically relating to the financial terms and conditions of this
Agreement to its insiders, investors and financial institutions. The third
parties who are to receive such information will agree to receive such
information in confidence, to maintain the secrecy thereof, and to not
Page 16
disclose the content of such information, under at least the same or similar
conditions as described above with respect to PDS FINANCIAL.
41.3 Both parties agree to xxxx all materials which include confidential
information relating to the Designated Technology and that said materials shall
be marked "Proprietary", "Confidential", "Secret", or with words of similar
meaning.
42. WARRANTS TO PURCHASE PDS FINANCIAL STOCK
As additional consideration for the rights granted to PDS FINANCIAL herein,
PDS FINANCIAL agrees that Digideal shall receive warrants allowing for purchase
of stock in PDS FINANCIAL according to the following conditions.
42.1 Warrants allowing purchase of one percent (1%) of PDS FINANCIAL's
outstanding common stock, as of the effective date of this Agreement, at each
such time as sales, rental and other revenue from the Designated Product exceed
certain milestones. The milestones provided for in this part are at each
increment of Ten Million Dollars of aggregated revenue from the Designated
Product; e.g. at 10, 20, 30, 40 and 50 Millions of Dollars of aggregated
revenue. The revenue from Designated Product will aggregate on the basis of
revenue invoiced less the amount of royalties paid to DIGIDEAL on the same such
aggregated revenue. The warrants provided for in this part 42.1 will only allow
a total of 4.98 percent of PDS FINANCIAL's issued and outstanding common stock
to be purchased by DIGIDEAL. The percent limitation does not apply to other
warrants provided below. The aggregated revenue is not limited to any particular
period of time except the general limitation provided for in part 42.3.
42.2 Provided the 50 Million Dollar milestone is achieved, then DIGIDEAL'S
shareholders shall receive two warrants or groups of warrants, each to purchase
an additional aggregate two and one-half percent (2.5%) of PDS FINANCIAL's
outstanding common stock at such time as sales, rental and other revenue from
the Designated Product exceed certain percentage amounts computed as a part of
total revenue earned by PDS FINANCIAL with regard to all products currently
being sold or rented by PDS FINANCIAL. There are two percentage amount levels
each of which give rise to such warrants to purchase said two and one-half
percent (2.5%). These percentage amount levels are twenty five percent (25%) and
(50%). The revenue from Designated Product will be compared with revenue from
other products of PDS FINANCIAL on the same basis as PDS FINANCIAL accounts in
its financial statements made available to the public or otherwise rendered by
PDS FINANCIAL accountants as the proper measure of revenue. The amounts will be
considered on a quarterly basis and if the specified percentage amounts are
achieved in any quarter, then the warrants provided in this paragraph will be
issued.
42.3 The warrants to purchase shares provided for in this part 42 shall be
exercisable within a period of time running from the effective date of this
Agreement until five (5) years thereafter. Any of the above warrants not
exercised within the five year period will become null and void and of no
further force and effect. Digideal shall tender payment at the time of
exercising the warrants, and the quantities of stock shares associated with said
percentages are determined at the time of purchase.
42.4 All warrants to purchase shares provided for in this part 42 will be
exercisable at a share price equal to the price of PDS FINANCIAL'S common stock
at the close of trading on the effective date of this Agreement.
43. RECIPROCAL WARRANTS TO PURCHASE DIGIDEAL STOCK
Page 17
43.1 PDS FINANCIAL shall receive warrants to purchase up to 9.88% of the
common stock in DIGIDEAL under the same conditions as specified with regard to
warrants received by DIGIDEAL to purchase stock in PDS FINANCIAL. The warrants
to purchase DIGIDEAL stock will be exercisable in the same percentages
contemporaneously with and triggered by the same milestones as set forth in part
42.
43.2 All warrants to purchase shares provided for in this part 43 will be
exercisable at a share price equal to $1.35 per share.
44. PATENT APPLICATIONS
44.1 RIGHTS TO FILE - DIGIDEAL shall have the right to have applications
for patents, utility models, design patents and similar forms of legal
protection (hereinafter collectively referred to as "patents") filed on all
patentable inventions or otherwise protectible interests contained within the
Designated Technology. This applies equally to original applications and any
foreign or domestic derivative applications directed to Designated Technology.
44.2 PROSECUTION - PDS FINANCIAL agrees that DIGIDEAL shall have
responsibility for preparing, filing and prosecuting any such patent
applications, and that all such work shall be done at DIGIDEAL's expense.
45. REGISTRATION
If under the law of any jurisdiction within the Designated Territory, the
execution or registration of any registered user or similar agreement in respect
of any of the Transferred Assets is required or permitted in order for PDS
FINANCIAL to obtain the full benefit of this Agreement, PDS FINANCIAL may, at
its own cost and expense, register this Agreement or execute or register the
appropriate registered user or similar agreement in order that PDS FINANCIAL
shall obtain such full benefits. If the registration of this Agreement is not
required, but instead optional or of beneficially effect, then no registration
shall occur without the written agreement of DIGIDEAL.
46. MINIMUM PERFORMANCE BY PDS FINANCIAL
46.1 PDS FINANCIAL shall under any and all circumstances achieve commercial
distribution of Designated Product by fifteen (15) months after the effective
date of this Agreement. If commercial distribution has not occurred by within
such period, then this Agreement shall automatically terminate upon notice but
without any opportunity to cure and without any period to cure this deficiency.
Automatic termination under this provision shall otherwise be subject to the
termination provisions of this Agreement.
46.2 PDS FINANCIAL shall produce results in effecting rental, sale or other
revenue associated with Designated Product which gives rise to payment of
revenue to DIGIDEAL according to the schedule below. Failure by PDS FINANCIAL to
achieve revenue for the specified number of Designated Products shall be deemed
a material breach of the contract and shall justify DIGIDEAL in termination
under part 62.
46.3 PDS FINANCIAL shall have Designated Product placed and generating
rental or sales revenue during the specified periods, for at least the following
number of systems of the Designated Product. A Designated Product system will
count in meeting the following requirements if the Designated Product has either
been sold during the minimum performance accounting period or if the system is
in place generating revenue at the end of the minimum performance accounting
period.
Page 18
(a) For the period calendar year 2001, at least 100 systems.
(b) For the period calendar year 2002, at least 300 systems.
(c) For the period calendar year 2003, at least 700 systems.
(d) For the period calendar year 2004, at least 1,400 systems.
(e) For the period calendar year 2005, at least 2,000 systems.
46.4 Should PDS FINANCIAL fail to rent and sell the minimum units described
above, then DIGIDEAL shall, at its sole discretion, have the option to either a)
terminate this Agreement, or b) convert PDS Financial's rights hereunder so that
all rights are non-exclusive.
47. IMPROVEMENTS AND DEVELOPMENTS IN DESIGNATED TECHNOLOGY
47.1 IMPROVEMENTS BY DIGIDEAL - Improvements, enhancements and additional
inventions relating to the Designated Technology by DIGIDEAL (hereinafter
"DIGIDEAL Improvements") will be considered within the scope of Designated
Technology if such falls within the scope of The Patents specifically enumerated
in part 3.1, 3.2, 3.3, 3.4 and 3.5. PDS FINANCIAL shall have the same rights and
obligations with respect to such DIGIDEAL Improvements, starting with the date
of actual disclosure to PDS FINANCIAL, as applies to Designated Technology in
general under this Agreement. Patent applications on any DIGIDEAL Improvements
shall be handled as indicated in part 44.
47.2 IMPROVEMENTS BY PDS FINANCIAL - Improvements, enhancements and
additional inventions relating to the Designated Technology by employees of PDS
FINANCIAL (hereinafter "PDS FINANCIAL Improvements"), shall be disclosed to
DIGIDEAL within three (3) months of discovery. All rights of any nature or type
in any improvements shall become the property of PDS FINANCIAL. Any such PDS
FINANCIAL Improvements shall be made available to DIGIDEAL for its own use
outside of the Designated Territory or Designated Products at no cost to
DIGIDEAL.
47.3 IMPROVEMENTS BY LICENSEE OR SUBLICENSEES - Improvements, enhancements
and additional inventions relating to the Transferred Assets by employees of any
licensee or sublicensee (hereinafter "Licensee or Sublicensee Improvements"),
shall be governed by the sublicense under which the licensee or sublicensee is
licensed. However, as a minimum, all licensees or sublicensees must agree to
disclose all such Licensee or Sublicensee Improvements to PDS FINANCIAL within
one (1) month of discovery. PDS FINANCIAL agrees to disclose any such Licensee
or Sublicensee Improvements to DIGIDEAL within one (1) month of disclosure by a
licensee or sublicensee to PDS FINANCIAL. Any patent applications or patents on
Licensee or Sublicensee Improvements shall be handled in the same manner as if
they are improvements by PDS FINANCIAL.
48. RESERVED
49. MARKING OF PRODUCTS EMBODYING PATENT RIGHTS AND COPYRIGHTS
49.1 PDS FINANCIAL and DIGIDEAL agree that all products and equipment sold,
leased or distributed hereunder which is within the scope of any claim issued in
a U.S. or foreign patent shall be marked with one or more patent numbers or
other notices in a manner consistent with and as required by the laws of the
jurisdiction in which the products and equipment are to be sold or otherwise
used or distributed. Failure to so xxxx all patented products and equipment will
subject PDS FINANCIAL to liability to DIGIDEAL for losses associated with such
failure to xxxx.
Page 19
49.2 PDS FINANCIAL and DIGIDEAL also agree to xxxx all reproductions,
copies and derivative works based on The Copyright Works with notice of the
claim to copyrights as required to fully protect The Copyright Works under the
laws of the jurisdiction in which the reproductions, copies or derivative works
are to be sold or distributed.
49.3 The provisions of this part shall apply to licensee or sublicensees
and all sublicenses shall so provide.
49.4 PDS FINANCIAL and DIGIDEAL agree to indicate DIGIDEAL's invention of
Designated Products and trademark rights in promotional and advertising
materials, and on the Designated Products.
50. RESERVED
51. WARRANTIES OF DIGIDEAL
51.1 DIGIDEAL makes only the warranties expressly made below.
(a) DIGIDEAL warrants that neither DIGIDEAL nor any of its corporate
officers has information indicating that the subject matter of The Patents
infringes any U.S. or foreign patents.
(b) DIGIDEAL makes no other warranties.
52. DISCLAIMER OF WARRANTIES BY DIGIDEAL
52.1 DIGIDEAL hereby disclaims all warranties not expressly made herein and
further specifically disclaims as set forth below.
(a) No warranty or representation is made that practice of the
Designated Technology by PDS FINANCIAL or its licensee or sublicensees as
allowed under this Agreement will not infringe upon patent or trademark
rights of a third party now unknown to DIGIDEAL and/or PDS FINANCIAL.
(b) No warranty or representation is made that patent protection
will necessarily be obtained on the Designated Technology.
(c) No warranty is made to indemnify PDS FINANCIAL for any claims
arising from DIGIDEAL's activities under this Agreement.
53. WARRANTIES OF PDS FINANCIAL
53.1 PDS FINANCIAL makes only the warranties expressly made below.
(a) PDS FINANCIAL warrants that neither PDS FINANCIAL nor any of
its corporate officers has information indicating that the subject matter of
The Patents infringes any U.S. or foreign patents.
(b) PDS FINANCIAL warrants that it will attempt to obtain licensing
by state gaming authorities enabling PDS FINANCIAL to perform rental or sales
of Designated Product in at least the states of Nevada, Mississippi, and New
Jersey by the end of calendar year 2002.
(c) PDS FINANCIAL makes no other warranties.
54. DISCLAIMER OF WARRANTIES BY PDS FINANCIAL
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54.1 PDS FINANCIAL hereby disclaims all warranties not expressly made
herein and further specifically disclaims as set forth below.
(a) No warranty or representation is made that practice of the
Designated Technology by PDS FINANCIAL or its licensee or sublicensees as
allowed under this Agreement will not infringe upon patent or trademark
rights of a third party now unknown to DIGIDEAL and/or PDS FINANCIAL.
(b) No warranty or representation will be made that patent
protection will necessarily be obtained on the Designated Technology.
(c) No warranty is made to indemnify DIGIDEAL for any claims
arising from PDS FINANCIAL's activities under this Agreement.
55. ENFORCEMENT OF PATENT AND OTHER EXCLUSIVE RIGHTS AGAINST INFRINGERS
55.1 PDS FINANCIAL shall be primarily responsible for enforcing any
patent or other exclusive rights in the Designated Technology against
infringers thereof. PDS FINANCIAL shall not be obligated to institute legal
proceedings for infringement.
55.2 If DIGIDEAL and PDS FINANCIAL agree to cooperatively institute
legal action against some third party for infringement of the Designated
Technology, then each shall share equally in the costs of litigation. Any
recovery under such legal actions shall be divided between PDS FINANCIAL and
DIGIDEAL between the parties based upon their relative payment of the total
litigation costs.
55.3 If either DIGIDEAL or PDS FINANCIAL do not institute legal action for
infringement, then the other may at its election xxx for infringement or other
cause, except no such action will be taken if the owner of the patent objects to
the institution of legal action concerning a patent it owns. Any recovery under
such legal actions shall be solely the property of the party pursuing the
lawsuit.
56. NOTIFICATION OF INFRINGEMENT
PDS FINANCIAL and DIGIDEAL both agree to notify the other within ten (10)
days of becoming aware of any infringement of Designated Technology by third
parties.
57. CLAIMS FROM THIRD PARTIES
57.1 The parties agree that if any third party takes legal action or
otherwise makes or asserts a claim against either of the parties to this
agreement, and such action, assertion or claim is based upon infringement of any
patent, trademark or copyright associated with the Designated Product,
Designated Trademarks, The Copyright Works, or other proprietary right licensed
or conveyed under the terms of the Original Agreement; then the following
provisions shall apply. For convenience, any such action, assertion or claim
shall be referred to below as a "third party infringement claim".
57.2 The parties agree to cooperate in defending, settling or otherwise
resolving any third party infringement claim.
57.3 All costs of defending against any third party infringement claim
shall be equally divided between the parties.
57.4 Costs of defending against any third party infringement claim shall
include monetary outlays for court costs, lawyers fees, investigation costs,
costs of depositions, copy
Page 21
costs incurred in connection with a lawsuit, and other monetary outlay costs
incurred because of actions taken in connection with the third party
infringement claim.
57.5 Costs of defending against any third party infringement claim shall
not include labor or employment costs and associated taxes for any employee of
either party unless there is specific further agreement that such employee costs
shall be shared under the terms of this modification and the Original Agreement.
Also excluded are costs of consultants normally employed by either party in
connection with the party's regular business, unless agreed by the parties or
unless the consultant's fees are specifically charged in connection with
services provided in defending against the third party infringement claim.
Management consultants shall be considered the same as employees for purposes of
determining whether their service fees are considered costs of defending against
any third party claims.
57.6 Any recovery to either party resulting from any third party
infringement claim, such as a favorable ruling upon a counterclaim, shall first
be used to pay unpaid costs incurred by both parties in connection with the
third party infringement claim. Thereafter the parties shall be reimbursed to
the extent that the costs of defending have not been borne equally. Thereafter
the recovery shall be divided equally or in a manner sufficient to provide equal
treatment of the parties with respect to costs and recovery in connection with
the third party infringement claim.
57.7 The provisions of this modification agreement shall not apply to
counterclaims filed by either party which are not within the definition or
subject matter of a third party infringement claim as defined hereinabove,
unless there is agreement in writing between the parties that such a
counterclaim is governed by the provisions of this modification.
57.8 If any provision of the Original Agreement is inconsistent with the
terms of this modification, then the provision contained herein shall govern.
57.9 Each party shall give the other prompt notice in writing of any claim
of infringement made known to it or the threat of any such claim.
58. COVENANTS NOT TO COMPETE
58.1 PDS FINANCIAL recognizes that DIGIDEAL has created the Designated
Technology and agrees that proprietary information is being conveyed to PDS
FINANCIAL in connection with the ongoing business relationship evidenced by this
Agreement. If PDS FINANCIAL's rights under this Agreement cease, then PDS
FINANCIAL agrees to not compete with DIGIDEAL or DIGIDEAL's authorized
distributor of the Designated Technology with regard to sale or rental of the
Designated Product. Such agreement not to compete applies for a period of two
(2) years from the discontinuation of PDS FINANCIAL's rights under this
Agreement or one (1) year after receipt by DIGIDEAL of all payments owed by PDS
FINANCIAL under this Agreement, whichever is later. This applies whether such
termination is by action of DIGIDEAL or voluntary action of PDS FINANCIAL. The
covenant to not compete applies worldwide.
58.2 PDS FINANCIAL further agrees to discontinue any use of any
confidential information of Digideal's for a period of at least five (5) years
from the discontinuation of PDS FINANCIAL's rights under this Agreement. Any use
of DIGIDEAL's proprietary information shall only occur thereafter if such
proprietary information has entered into the public domain. If such information
is not in the public domain then PDS FINANCIAL shall make no use of DIGIDEAL's
confidential information whatsoever.
58.3 DIGIDEAL has employees, and is collaborating with outside technical
consultants, both of which will be working to transfer technology to PDS
FINANCIAL in connection with development of the Designated Product. In continued
development and commercialization of the Designated Product, PDS FINANCIAL
agrees not to employ any existing employee, or any
Page 22
employee of DIGIDEAL hired hereafter, or consultant of DIGIDEAL without first
receiving authorization from DIGIDEAL. This limitation shall last for a period
of three (3) years after: a) the employee or consultant of DIGIDEAL leaves
service of DIGIDEAL, or b) leaves permissive service of PDS FINANCIAL if such
service was authorized by DIGIDEAL in furtherance of the Designated Product.
58.4 DIGIDEAL is developing other gaming products in addition to the
Designated Products. PDS FINANCIAL agrees not to produce products, which are
competitive with other DIGIDEAL products for a period of two (2) years after the
termination of PDS FINANCIAL's rights under this Agreement. Products, which are
competitive with other DIGIDEAL products shall include products produced by
DIGIDEAL or a third party authorized by DIGIDEAL, if such products fall within
the following definition:
Gaming systems which utilize automated electronically controlled visual
displays which during the play of games include display or cards or symbols
which are visually displayed by said visual displays, said gaming systems
being adapted for play by at least one dealer and at least one player who
are physically present in a single room to play a game using such cards or
symbols.
59. COMPLIANCE WITH EXPORT OF TECHNOLOGY AND OTHER LAWS
PDS FINANCIAL agrees to comply with all U.S. and foreign government
statutes governing import and export of technological information, taxes and
other applicable laws. Since the technological information licensed hereunder is
initially subject to the laws of the United States, no disclosure to individuals
or organizations which constitutes a violation of the export of technology laws
or other U.S. or state statute of similar nature or effect, shall occur by PDS
FINANCIAL. Any further improvements or inventions, which become part of the
Designated Technology shall similarly be controlled by U.S. law or the law of
any foreign nation in which such inventions or improvements are created, or as
otherwise made applicable under such U.S. or foreign law.
60. CONVERSION TO NON-EXCLUSIVE
60.1 If during the period of exclusivity and prior to transfer of rights
under part 7, PDS FINANCIAL fails to comply with the terms of this Agreement,
and such failure or failures are material breaches, then DIGIDEAL may convert
one or more of the exclusive rights granted to PDS FINANCIAL hereunder into
non-exclusive rights, subject to applicable gaming laws. Conversion shall also
be possible if PDS FINANCIAL becomes insolvent, bankrupt, fails to perform, or
is for other reason unable to effectively conduct business.
60.2 Such conversion shall be effected by DIGIDEAL sending a certified
letter, return receipt requested, containing a notice of default indicating the
failure or breach of this Agreement upon which conversion is to be based. PDS
FINANCIAL shall then have a thirty day period to prepare a plan, which outlines
how the failure or breach will be rectified. DIGIDEAL will then indicate whether
DIGIDEAL believes the plan will rectify the failure or breach. PDS FINANCIAL
will have a cure period of three (3) months after DIGIDEAL states its position
concerning the plan during which to rectify the failure or breach. The three
month cure period will start on the date that PDS FINANCIAL receives the
position of DIGIDEAL in writing. If PDS FINANCIAL fails to cure
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within the cure period, then conversion shall occur upon DIGIDEAL's mailing of a
notice of conversion after the expiration of the cure period.
61. EFFECT OF CONVERSION
61.1 Conversion shall not diminish PDS FINANCIAL's obligation to make
payments hereunder.
61.2 Conversion does not diminish DIGIDEAL's obligations hereunder except
that any exclusive rights previously held by PDS FINANCIAL are no longer
exclusive.
61.3 Conversion of this Agreement from exclusive to non-exclusive rights
shall not change the status of licenses or sublicenses entered into by PDS
FINANCIAL in accordance with this Agreement, unless the licenses or sublicenses
are exclusive, in which case they shall become non-exclusive and limited to the
same extent as the licenses held after conversion by PDS FINANCIAL.
61.4 Upon conversion PDS FINANCIAL is also limited and can no longer
negotiate new licenses or sublicenses under this Agreement unless authorized by
DIGIDEAL on a case-by-case basis and under terms agreeable to DIGIDEAL.
61.5 The option to repurchase rights under section 9 shall become
immediately exercisable upon conversion.
61.6 Notwithstanding anything herein to the contrary, the parties agree
that in the event of a Conversion as described in section 60 and this section
61, that all Designated Products (including contract rights) distributed by PDS
FINANCIAL prior to the date of said Conversion shall remain the sole property of
PDS FINANCIAL and DIGIDEAL expressly waives any right, title or interest in and
to said previously distributed Designated Products and any contract rights
associated therewith, provided that PDS FINANCIAL shall continue to be obligated
to make all payments due to DIGIDEAL herein.
61.7 PDS shall notify the State of Nevada Gaming Control Board of any
Conversion within ten (10) days from the effective date of such Conversion.
62. TERMINATION BY DIGIDEAL
62.1 If PDS FINANCIAL fails to comply with the terms of this Agreement, and
such failure or failures are significant and material breaches, then DIGIDEAL
may terminate this Agreement and any rights granted to PDS FINANCIAL hereunder.
Termination shall also be possible if PDS FINANCIAL becomes insolvent, bankrupt,
fails to perform, or is for other reason unable to conduct business. Further,
termination shall be possible if any key employee of PDS FINANCIAL is convicted
of a crime involving moral turpitude.
62.2 Without limitation being implied, it is agreed that the significant
provisions of the following aspects, sections or parts of this Agreement are
sufficient to warrant termination: all requirements to make payments, 9, 37, 38,
39.1, 39.2, 41, 42, 34, 47.
62.3 Termination shall be effected by DIGIDEAL sending a certified letter,
return receipt requested, containing a notice of default indicating the failure
or breach of this Agreement upon which termination is to be based. PDS FINANCIAL
shall then have a thirty day period to prepare a plan, which outlines how the
failure or breach will be rectified. DIGIDEAL will then indicate whether
DIGIDEAL believes the plan will rectify the failure or breach. PDS FINANCIAL
will have a cure period of three (3) months after DIGIDEAL states its position
concerning the plan during which to rectify the failure or breach. The three
month cure period will start on the date that PDS
Page 24
FINANCIAL receives the position of DIGIDEAL in writing. If PDS FINANCIAL fails
to cure within the cure period, then termination shall occur upon DIGIDEAL's
mailing of a notice of termination after the expiration of the cure period.
63. EFFECT OF TERMINATION BY DIGIDEAL
63.1 Upon termination, all rights of PDS FINANCIAL except for those
specifically indicated as continuing, shall terminate.
63.2 Termination shall not diminish PDS FINANCIAL's obligation to make
payments hereunder.
63.3 Designated Product which is in the process of being sold shall proceed
to be sold and installed within a period of thirty (30) days. Sales requiring
delivery at a later time than this period shall only be pursued if an agreement
has already been entered into, or upon specific authorization from DIGIDEAL.
63.4 Upon termination, PDS FINANCIAL shall no longer place any additional
Designated Product on rental.
63.5 PDS FINANCIAL shall continue to treat revenue in the same manner after
termination as prior to termination, except that PDS FINANCIAL shall have no
right to any revenue after PDS FINANCIAL fails to provide general customer
support, maintenance or repair services.
63.6 RESERVED.
63.7 The option to repurchase rights under section 9 shall become
immediately exercisable upon termination and the Transferred Assets shall be
reconveyed or otherwise revert to DIGIDEAL.
63.8 Upon termination, all payments then owed shall become immediately due
and payable.
63.9 Upon termination, PDS FINANCIAL may continue to use previously
purchased repair parts and obtain additional repair parts as needed to continue
any servicing of customers. However, no refund or setoff for spare parts
purchased from DIGIDEAL will be made more than one (1) year after termination.
63.10 After termination of this Agreement, the Transferred Assets shall
revert to DIGIDEAL who may assign or license others to use the Transferred
Assets.
63.11 Upon termination, PDS FINANCIAL agrees to stop all further use of the
Transferred Assets and turn over to DIGIDEAL all materials, which relate to the
Transferred Assets. PDS FINANCIAL shall be responsible for any damages caused by
the unauthorized use of such materials or reproduction materials, which are not
turned over.
63.12 All licenses and sublicenses entered into by PDS FINANCIAL will be
assigned or otherwise transferred to DIGIDEAL if PDS FINANCIAL's rights and
obligations under this Agreement are terminated, and DIGIDEAL shall accede to
all of PDS FINANCIAL's rights in and under the applicable licenses or
sublicenses, subject to applicable gaming laws.
63.13 Upon termination, the Transferred Assets shall not be licensed or
sublicensed without the prior written approval of DIGIDEAL.
63.14 Termination does not diminish DIGIDEAL's obligations hereunder for
those obligations which related to any continued activity of PDS FINANCIAL and
are possible of being maintained after termination. Specific limitations and
time periods contained in other parts of this Agreement will apply to limit
obligations after termination.
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63.15 Notwithstanding anything herein to the contrary, the parties agree
that in the event of a Termination as described in section 62 and this section
63, that all Designated Products (including contract rights) distributed by PDS
FINANCIAL prior to the date of said Termination shall remain the sole property
of PDS FINANCIAL and DIGIDEAL expressly waives any right, title or interest in
and to said previously distributed Designated Products and any contract rights
associated therewith, provided that PDS FINANCIAL shall continue to be obligated
to make all payments due to DIGIDEAL herein.
63.16 PDS shall notify the State of Nevada Gaming Control Board of any
Termination within ten (10) days from the effective date of such Termination.
64. TERMINATION BY PDS FINANCIAL
64.1 PDS FINANCIAL shall have the right to terminate this Agreement for
significant, material breaches by DIGIDEAL.
64.2 Termination shall be effected in a manner the same as or consistent
with the procedure set out in part 62.
64.3 The cure period applicable shall be thirty (30) days under all parts
relating to termination by PDS FINANCIAL.
65. EFFECT OF TERMINATION BY PDS FINANCIAL
65.1 Termination by PDS FINANCIAL shall result in the same effects of
termination as provided for in section 63.
65.2 Following termination by PDS FINANCIAL, DIGIDEAL shall have no
obligation to repay to PDS FINANCIAL any advances or payments paid by PDS
FINANCIAL under this Agreement.
66. MODIFICATION OF AGREEMENT
No modification of this Agreement shall be valid or binding unless the
modification is executed in writing signed by all parties to this Agreement.
67. NO WAIVER
No waiver by either party of a breach or a default hereunder shall be
deemed a waiver by such party of a subsequent breach or default of a like or
similar nature.
68. SEVERABILITY
In the event that any term or provision of this Agreement shall for any
reason be held to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any other term or
provision of this Agreement and shall be interpreted and construed as if such
term or provision, to the extent the same shall have been held to be invalid,
illegal, or unenforceable, had never been contained herein.
69. FORCE MAJEURE
If during the performance of obligations under this Agreement, either party
is prevented from performance on the basis of labor strike, natural disaster,
riot, war, or other causal force
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which was not reasonably foreseeable or reasonably preventable, then failure by
that party to meet its obligation to perform shall be excused until such time as
the cause preventing performance is removed and the party can thereafter
reasonably perform.
70. APPLICABLE LAW
This Agreement shall be construed and governed in accordance with the laws
of the State of Nevada, United States of America.
71. JURISDICTION AND VENUE
The parties hereto agree that jurisdiction and venue shall be proper in
Nevada, and as otherwise provided for under law.
72. NOTICES
All notices required to be sent to either party shall be in writing and
sent by registered or certified mail, postage prepaid, return receipt requested,
or by telex or telegram, charges prepaid to the parties at the addresses given
hereinabove, or such future addresses as the parties shall designate in writing.
Notices can also be communicated by fax but are not considered effective unless
the party being notified confirms receipt of the fax in writing or by a return
fax indicating receipt of the notice previously sent by fax, or if the sender's
confirmation report indicates successful transmission to the other party, unless
the receiving party can prove the fax was not received. Payments can be sent by
first class mail.
73. RELATIONSHIP OF THE PARTIES
This Agreement does not create a partnership or joint venture between the
parties and neither party shall have any power to obligate or bind the other in
any manner whatsoever, except as specifically expressed in this Agreement.
74. ATTORNEY'S FEES
If either of the parties to this Agreement institute arbitration or legal
proceedings to enforce the terms of this Agreement, the parties agree that the
unsuccessful party to such arbitration or legal proceedings shall pay the
reasonable attorney's fees and legal costs of both parties, as the same may be
approved by the arbitrator or court having jurisdiction over such proceedings.
75. INTEGRATION, ENTIRE AGREEMENT
This instrument constitutes the entire agreement between the parties.
Neither party shall be bound by any terms, conditions, understandings,
warranties, statements or representations, oral or written, not contained in
this Agreement. Both parties hereby acknowledge that the execution of this
Agreement was not induced or motivated by any promise or representation made by
any other party, other than the promises and representations expressly set forth
in this Agreement. All previous negotiations, statements, and preliminary
instruments by the parties or their representatives are merged into this
Agreement, except as expressly provided herein.
76. COUNTERPART ORIGINAL AGREEMENTS
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This Agreement shall be executed in multiple original counterparts with
each party retaining one copy thereof.
77. EFFECTIVE DATE OF AGREEMENT AND TERM OF AGREEMENT
77.1 The effective date of this Agreement is June 16, 1999.
77.2 This Agreement shall terminate when terminated by DIGIDEAL or PDS
FINANCIAL as provided in this Agreement. If neither party terminates this
Agreement as provided herein, then appropriate provisions of this Agreement
shall be applied until complete cessation of all use of The Patents, Designated
Trademarks, The Copyrights, and Designated Technology by PDS FINANCIAL or any
licensee or sublicensee, or until no further payments are due hereunder,
whichever is longer.
78. ARBITRATION
78.1 Any controversy or claim arising out of or relating to this Agreement
or the breach of any representation, warranty, covenant or agreement contained
herein, shall be decided by arbitration in accordance with the Commercial
Arbitration Rules ("C.A.R.") of the American Arbitration Association ("A.A.A.")
then obtaining, unless the parties otherwise mutually agree in writing. The
dispute shall be decided by a panel of three arbitrators (each an "Arbitrator"
and collectively, the "Arbitrators") one arbitrator chosen by each DIGIDEAL and
PDS FINANCIAL, and the third by the two selected arbitrators in accordance with
C.A.R. and A.A.A. The decision and the award of damages rendered by a majority
of the Arbitrators shall be final and binding and judgment may be entered upon
it in any court having jurisdiction thereof.
78.2 The arbitration shall be held as promptly as practicable after actual
receipt of notice that the other party has filed a notice for arbitration with
the A.A.A. (the "Notice") on such a date, and at such a place and time
convenient to the parties and to the Arbitrators, except that if the parties
cannot agree, the Arbitrators shall decide such date, place and time. The
Arbitrators shall make their decision promptly and any award of damages shall be
made, unless otherwise mutually agreed by the parties in writing, no later than
fifteen (15) days from the date of closing of the hearings or if oral hearings
have been waived, from the date of transmitting the final statements and proofs
to the Arbitrators.
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79. EXECUTION BY DIGIDEAL - DIGIDEAL CORPORATION
Date: September ____, 2000 By:
------------------------------------
Xxxxxxx X. Xxxx, CEO
State of )
---------------- ) ss
County of )
----------------
I certify that I know or have satisfactory evidence that XXXXXXX X. XXXX
signed this instrument, and upon oath acknowledged that he had authority to act
in behalf of DIGIDEAL Corporation and further acknowledged this instrument to be
the free and voluntary act of such party for the uses and purposes mentioned in
this instrument.
Date: September ____, 2000
------------------------------------
Notary Public
Residing at
-------------------------
[SEAL] My appointment expires:
-------------
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80. EXECUTION BY PDS FINANCIAL - PDS FINANCIAL
Date: September ____, 2000 By:
------------------------------------
Xxxxx X. Xxxxxx
President
PDS Financial
State of Nevada )
) ss
County of Xxxxx )
I certify that I know or have satisfactory evidence that XXXXX X. XXXXXX
signed this instrument, and upon oath acknowledged that he had authority to act
in behalf of PDS FINANCIAL and further acknowledged this instrument to be the
free and voluntary act of such party for the uses and purposes mentioned in this
instrument.
Date: September ____, 2000
------------------------------------
Notary Public
Residing at
-------------------------
[SEAL] My appointment expires:
-------------
Page 30
81. APPENDIX A - DESIGNATED TRADEMARKS
The Designated Trademarks at the time of execution include:
DIGITAL 21
DIGITAL CARD
DIGITAL CARDS
DIGIDEAL
DIGIDEALER
DIGITAL DEAL
DIGITAL DEALER
DIGITAL CARD SYSTEM
DCS
SLOTJACK
BONANZA BLACKJACK
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82. APPENDIX B - EXEMPLARY MORTGAGE
MORTGAGE OF PATENT RIGHTS
PDS Financial does hereby mortgage and grant a security interest to
Digideal in the following pending patent applications and any patents resulting
therefrom:
ORIGINAL PATENT APPLICATION - U.S. Patent Application Serial No. 09/041,373
entitled "Automated System for Playing Live Casino Table Games Having
Tabletop Changeable Playing Card Displays and Play Monitoring Security
Features", filed March 11, 1998.
FIRST C-I-P PATENT APPLICATION - U.S. Patent Application Serial No.
09/159,813 entitled "Automated System for Playing Live Casino Table Games
Having Tabletop Changeable Playing Card Displays and Play Monitoring
Security Features", filed September 23, 1998.
SECOND C-I-P PATENT APPLICATION - U.S. Patent Application Serial No.
09/301,267 entitled "Automated System for Playing Live Casino Table Games
Having Tabletop Changeable Playing Card Displays and Play Monitoring
Security Features", filed April 27, 1999. This Second C-I-P patent
application also includes a related Patent Cooperation Treaty, Application
Serial No. PCT/US99/05361, filed March 11, 1999 of same title and
disclosure as the Second C-I-P patent application.
ANCILLARY PATENT APPLICATION - U.S. Patent Application Serial No.
09/215,391 filed December 18, 1998 entitled "Method of Playing Blackjack
with a Side Wager".
The mortgage and security interest granted hereby are used to secure
obligations arising under a certain agreement entitled, "AMENDED AND RESTATED
AGREEMENT FOR TECHNOLOGY TRANSFER, MANUFACTURE, DISTRIBUTION AND AFFECTING
PATENT, TRADEMARK AND COPYRIGHTS" executed between such parties on
September______, 2000 and as modified in accordance with the terms of such
agreement. PDS Financial agrees not to sell, transfer, convey or otherwise
encumber any of the patent rights secured by this Mortgage unless agreed to in
writing by Digideal or if done as authorized in said agreement.
Date: By:
------------------------------- ----------------------------------
Xxxxx X. Xxxxxx, President
State of Nevada )
) ss
County of Xxxxx )
I certify that I know or have satisfactory evidence that XXXXX X. XXXXXX
signed this instrument, and upon oath acknowledged that he had authority to act
in behalf of PDS Financial Corporation and further acknowledged this instrument
to be the free and voluntary act of such party for the uses and purposes
mentioned in this instrument.
Dated:
------------------------------ -------------------------------------
Notary Public
Residing at
--------------------------
[SEAL] My appointment expires:
--------------
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