Exhibit 10.48
TERMINATION
AGREEMENT
THIS TERMINATION AGREEMENT (this
“ Agreement ”) is entered into as of
March 13, 2009 (“ Effective Date ”), by and
between Elixir Gaming Technologies, Inc. (formerly
VendingData Corporation), a Nevada corporation (“
Principal ”) and Happ Controls, Inc., an Illinois
corporation and any of its affiliates (AESI together with Happ and
Suzo, the “ Service Provider ”)
.
R E C I T A
L S
WHEREAS, the Principal and the
Service Provider have entered into that certain Distribution,
Service and Support Agreement dated June 8, 2007 (as amended
by an amendment thereto dated November 13, 2007) (the “
Distribution Agreement ”) whereby the Principal has,
amongst other matters, retained the Service Provider to provide
Distribution Service and Support for the Principal’s Products
throughout the Territory for a term of two years from June 8,
2007.
Unless the context otherwise
specified, all capitalized terms used in this Agreement shall have
the same meanings as defined in the Distribution
Agreement.
WHEREAS, the Principal and the
Service Provider have agreed to early terminate the Distribution
Agreement on such terms and conditions as set forth in this
Agreement.
A G R E E M
E N T
NOW, THEREFORE, in consideration of
the premises and the mutual covenants, obligations and agreements
contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound, the Principal and the Service
Provider hereby agree as follows:
1.
Early Termination of the
Distribution Agreement
Notwithstanding anything to the
contrary contained in Sections 3.1 and 3.2 of the Distribution
Agreement, the Principal and the Service Provider hereby agree to
terminate the Distribution Agreement with effect on the Effective
Date provided that :
(a)
the termination of the Distribution
Agreement will not release either Service Provider or the Principal
from any liability or obligation, which, at the Effective Date, has
already accrued or which thereafter may accrue in respect to any
act or omission prior to such termination, nor will any such
termination affect in any way the survival of any right, duty or
obligation of any party which is expressly stated elsewhere in the
Distribution Agreement to survive the termination; and
(b)
for the avoidance of doubt, the
parties acknowledge and confirm that the following provisions of
the Distribution Agreement shall survive the termination thereof :
the provisions of Article X , Sections 3.3 ,
7.2 , 9.1 , 9.2 , 11.1 , 11.2 ,
11.3 , 11.4 , 11.6 , 11.8 ,
11.13 , 11.14 , 11.18 and the last sentence of
Section 5.1(c) ;
2.
Post Termination
Arrangement
2.1
In relation to the respective
outstanding obligations and rights of the parties following the
termination of the Distribution Agreement, including but not
limited to, those set out in Section 3.3 (c) of
the Distribution Agreement and the respective payables, receivables
and claims, if any, of each party to or against the other pursuant
to the Distribution Agreement (collectively “ Claims
”), the parties agree to settle the Claims within forty-five
(45) days from the Effective Date (or such other period as may be
agreed by the parties in writing). In this respect, each party
agrees to execute such further documents and take such additional
action as may be reasonably required by the other party to settle
the Claims within the aforesaid timeframe.
2.2
The parties hereby agree that all
Claims between themselves may be either settled by way of outright
payment or by way of set-off of the respective parties payables (so
long as such payables are evidenced by proof of delivery) to the
other or a combination of both.
3.
Undertakings by the Service
Provider
3.1
Without prejudice to the generality
of the provisions of Section 2 of this Agreement and
Section 3.3 (c)(i) of the Distribution Agreement, the
Service Provider agrees and undertakes that with effect from the
Effective Date, will cease to provide Distribution, Service and
Support for the Principal’s Products except as
follows:
(a)
Service Provider will continue to
provide service for the Principal’s Products to those
customers with which it has current, valid, binding Service
Contracts until the expiration date of those Service Contracts or
until terminated by Service Provider under contract
provisions;
(b)
Consistent with the terms of the
Service Contracts, Service Provider will provide written notice of
termination of the aforementioned Service Contracts;
(c)
as of and after the Effective Date
of this Agreement, Service Provider will not enter into any new
Service Contracts or extend or renew any Service Contracts beyond
any such contract’s expiration date; and
(d)
With regard to the inventory
currently on consignment from the Principal to the Service
Provider, the Service Provider will cooperate in allowing Shuffle
Master, Incorporated have access to that inventory that is being
sold to Shuffle Master for testing and pick up.
3.2
The Service Provider further agrees
and undertakes that :
(a)
it will terminate the
sub-distribution agreement for the Principal’s Products
between the Service Provider and Sub-Distributor (“
Sub-Distribution Agreement ”) by giving 90 days
written notice in advance of the expiration date thereof in
accordance with the terms and conditions set forth therein, and at
such time notify them about the termination of the Distribution
Agreement and accordingly, the cessation of Sub-Distributor’s
rights to provide any distribution,
2
service and support for the
Principal’s Products except as consistent with the terms of
this Agreement;
(b)
the Principal shall not be liable to
the Service Provider by reason of termination of the
Sub-Distribution Agreement for compensation, reimbursement, or
damages for lost profits, loss of prospective compensation or
unjust enrichment, goodwill or loss thereof or expenditures,
investments, leases or any type of commitment made by the Service
Provider in connection with the Sub-Distribution Agreement except
that should the Sub-distributor return product to the Service
Provider, the Principal hereby agrees to in-turn accept and pay for
(within 30 days of Principal’s receipt thereof) the return of
up to 15 new and operational Shuffle Pro units at the price paid by
Service Provider to the Principal, but not to exceed $81,900.00,
provided that notice is given by the Service Provider to the
Principal before November 15 th 2009 (with a delivery date of no later
than December 31, 2009); and
(c)
it will be solely liable for all
liabilities, obligations and claims towards any Sub-Distributor in
connection with, relating or incidental to, or arising out of the
termination of the Sub-Distribution Agreement.
3.3
Nothing contained in this
Section 3 shall be construed or regarded as an authorization,
confirmation or ratification by the Principal for the entering into
of any Sub-Distribution Agreement by the Service
Provider.
4.
Undertakings by the
Principal
4.1
Without prejudice to the generality
of the provisions of Section 2 of this Agreement and
Section 3.3 (c)(i) of the Distribution Agreement, the
Principal agrees and undertakes that with effect from the Effective
Date, it will cease to claim that the Service Provider is the
service pro
