Exhibit 10.3
NON-SOLICITATION
AGREEMENT
This
Non-Solicitation Agreement is made and entered into as of January 8, 2007,
by WinWin Gaming, Inc.
, a Delaware
corporation (“ WinWin ”), in favor of and
for the benefit of Solidus Networks, Inc.
, a Delaware
corporation (“Solidus ”).
Recitals
A.
WinWin and Solidus are engaged in
negotiations concerning a potential strategic transaction between
the parties.
B.
WinWin is executing and delivering
this Agreement in consideration of, and in order to induce,
Solidus’s continued participation in such
negotiations.
Agreement
The parties to this Agreement,
intending to be legally bound, agree as follows:
1.
WinWin shall immediately cease and
cause to be terminated any existing discussions with any person
that relate to any Acquisition Proposal. Between the date of this
Agreement and 11:59 p.m. PST on the date that is thirty (30) days
after the date of this Agreement (the “No-shop
Period”), WinWin shall not, directly or indirectly, nor shall
WinWin authorize or permit any Representative of WinWin directly or
indirectly to, (a) solicit, initiate, encourage, induce or
facilitate the making, submission or announcement of any
Acquisition Proposal or take any action that could reasonably be
expected to lead to an Acquisition Proposal, (b) furnish any
information regarding WinWin to any person in connection with or in
response to an Acquisition Proposal or an inquiry or indication of
interest that could lead to an Acquisition Proposal, (c) engage in
discussions or negotiations with any person with respect to any
Acquisition Proposal, (d) approve, endorse or recommend any
Acquisition Proposal or (e) enter into any letter of intent or
similar document or any contract contemplating or otherwise
relating to any Acquisition Transaction. Without limiting the
generality of the foregoing, WinWin acknowledges and agrees that
any action inconsistent with any of the provisions set forth in the
preceding sentence by any Representative of WinWin, whether or not
such Representative is purporting to act on behalf of any of
WinWin, shall be deemed to constitute a breach of this Section 1 by
WinWin.
2.
During the No-shop Period, WinWin
shall promptly (and in no event later than 24 hours after receipt
of any Acquisition Proposal, any inquiry or indication of interest
that could lead to an Acquisition Proposal or any request for
nonpublic information) advise Solidus orally and in writing of any
Acquisition Proposal, any inquiry or indication of interest that
could lead to an Acquisition Proposal or any request for nonpublic
information relating to WinWin (including the identity of the
person making or submitting such Acquisition Proposal, inquiry,
indication of interest or request, and the terms thereof) that is
made or submitted by any person during the No-shop Period.
WinWin shall keep Solidus fully informed with respect to the status
of any such Acquisition Proposal, inquiry, indication of interest
or request and any modification or proposed modification
thereto.
1
3.
WinWin agrees not to release or
permit the release of any person from, or to waive or permit the
waiver of any provision of, any confidentiality,
“standstill” or similar agreement to which WinWin is a
party or under which WinWin has any rights, and will use its best
efforts to enforce or cause to be enforced each such agreement at
the request of Solidus.
4.
As used herein, the following terms
have the meanings ascribed to them below:
(a)
“Acquisition Proposal”
shall mean any offer or proposal (other than an offer or proposal
made or submitted by Solidus) contemplating or otherwise relating
to any Acquisition Transaction.
(b)
“Acquisition
Transaction” shall mean any transaction involving: (i) the
sale, license, disposition or acquisition of all or a substantial
portion of the business or assets of WinWin; (ii) the issuance,
disposition or acquisition of (A) any capital stock or other equity
security of WinWin (other than WinWin’s Common Stock issued
to employees of WinWin upon exercise of WinWin’s options in
routine transactions in accordance with WinWin’s past
practices), (B) any option, call, warrant or right (whether or not
immediately exercisable) to acquire any capital stock or other
equity security of WinWin, or (C) any security, instrument or
obligation that is or may become convertible into or exchangeable
for any capital stock or other equity security of WinWin; or (iii)
any merger, consolidation, share exchange,
