exv10w4



 



Exhibit 10.4


Third Amendment to License & Development Agreement



               This Amendment, dated November 7, 2003 (“Amendment”), is the Third
Amendment to that certain License and Development Agreement, dated April 24,
2002, as amended by that certain First Amendment to License & Development
Agreement dated as of June 10, 2003 (the “Agreement”), each between SIERRA
DESIGN GROUP, a Nevada corporation with offices located at 300 Sierra Manor
Drive, Reno, NV 89511 (“LICENSOR”), and WMS GAMING INC., a Delaware corporation
with offices located at 800 S. Northpoint Boulevard, Waukegan, Illinois 60085
(“LICENSEE”).



          WHEREAS, the parties desire to amend the Agreement;



          THEREFORE, in consideration of the mutual promises and covenants set forth
in this Amendment, the sufficiency and receipt of which is hereby acknowledged,
LICENSOR and LICENSEE agree as follows:




	1.	 	Definitions




	 	 	 	 
	 	1.1.	 	
Section 1 of the Agreement is amended to add the following term:
“[*]” shall mean [*] and such other functionality as the parties may
mutually agree. LICENSOR agrees to use best commercial efforts to
include maximum bet game specific set-up in [*], but it shall not
constitute a Deliverable for [*].
	 	 	 
	 	1.2.	 	
Section 1 of the Agreement is amended to add the following term:
“[*]” shall mean the version of SDG Platform Rev B that includes the
additional functionality listed on Annex 1.2 attached hereto and
incorporated herein and correction of identified defects in accordance
with the Agreement.
	 	 	 
	 	1.3.	 	
Section 1 of the Agreement is amended to add the following term:
“[*]” shall mean [*]. [*] shall also include the additional
functionality described on Annex 1.3 attached hereto and incorporated
herein and such other functionality as the parties may mutually agree
and correction of identified defects in accordance with the Agreement.
	 	 	 
	 	1.4.	 	
The term “Final Load”, as defined with respect to [*], is deleted
in its entirety and replaced with the following: “’Final Load’ shall
mean [*].



*Information has been omitted from this document and filed separately with the
Securities and Exchange Commission under a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.


- 1 -






 



	 	 	 	 
	 	1.5.	 	
1.5 “New Bonus Amounts” shall mean, with respect to [*] or [*], the
Bonus amounts as set forth in Annex 2.3 (which aggregate to [*]) and,
with respect to [*], the Bonus amounts associated with all of the parts
of Milestone 4D as set forth in Annex 2.3 (which aggregate to [*]).
	 	 	 
	 	1.6.	 	
1.6 “Original Bonus Amounts” shall mean the Bonus amounts
associated with Milestones 1A, Milestones 2A-2E, Milestones 3A-3B, and
Milestones 4A-4B (as modified) (which aggregate to [*]).
	 	 	 
	 	1.7.	 	
1.7 “Pre-Submission Milestones” shall mean, with respect to [*] for
each of Nevada, New Jersey and Mississippi, Milestones 4C-1 through
4C-2 and, with respect to [*], Milestones 4D-1 through 4D-2.
	 	 	 
	 	1.8.	 	
1.8 “All Tests Passed” shall mean delivery by LICENSOR of a Final
Load for which no Major Defects are outstanding.




	2.	 	Additional Consideration




	 	 	 	 
	 	2.1.	 	
Section 3a of the Agreement is amended by adding the following
sentences at the end of such Section: “In consideration of the
additional functionality added to [*], an amount equal to [*] shall be
paid to LICENSOR within [*] of [*]. In consideration of the additional
functionality to be included in [*], an amount equal to [*] shall be
paid to LICENSOR within [*] of completion of All Tests Passed for [*].
Such consideration for additional functionality is not subject to the
penalty provisions of Section 3c or Exhibit D.




	3.	 	Milestones (Exhibit C)




	 	 	3.1 The Bonuses applicable to Milestones [*] are [*]. The Bonus applicable
to Milestone [*] is [*].
	 
	 	 	3.2 Milestone [*] is [*].
	 
	 	 	3.4 Milestones [*] on Exhibit C are [*] set forth on Annex 2.3 attached
hereto and incorporated herein.
	 
	 	 	3.5 The aggregate Bonus of [*] for Sell 2 and Sell 3 set forth in Exhibit C
remains allocated to Sell 2 and Sell 3, to the extent the parties reach
agreement on Milestones for Sell 2 and Sell 3.




	4.	 	Bonus License Fees and Penalties (Exhibit D)




	 	 	 	 
	 	4.1	 	
Paragraph A.4 of Exhibit D is deleted in its entirety and replaced with the following:



*Information has been omitted from this document and filed separately with the
Securities and Exchange Commission under a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.


- 2 -






 



	 	 	 	“Subject to this Paragraph A and Paragraph B herein, Bonuses associated
with Milestones 4C and 4D set forth in Exhibit C will be deemed earned as
follows:
	 
	 	 	 	[*] GLI Approval
	 
	 	 	 	The Bonus associated with GLI approval for [*] shall consist of the
Bonuses associated with each of Milestones 4C-3a (GLI submission) and
4C-4a (GLI approval) to the extent each such Milestone date is met
without delay.
	 
	 	 	 	[*] GLI, NV, MS and NJ Submissions
	 
	 	 	 	Notwithstanding the provisions of Paragraph A.1 above, if any of the
Pre-Submission Milestones for [*] are not met, but [*] in each of Nevada,
Mississippi and New Jersey (Milestone 4C-3c) is met with no delay, then
[*] of the New Bonus Amounts attributed to the Pre-Submission Milestones
for [*] and [*] of the submittal Bonus for [*] in Nevada, Mississippi and
New Jersey (Milestone 4C-3c) shall be deemed to be [*] earned for Nevada,
Mississippi and New Jersey, respectively. If the Milestone Date for
regulatory submission of [*] in GLI (Milestone 4C-3b) is met with no
delay, then the submittal Bonus for GLI shall be deemed [*] earned.
	 
	 	 	 	[*] All Test Pass
	 
	 	 	 	Notwithstanding the provisions of Paragraph A.1 above, if any of the
Pre-Submission Milestones for [*] are not met, but [*] (Milestone 4D-3)
is met with no delay, then [*] of the New Bonus Amounts attributed to the
Pre-Submission Milestones for [*] and [*] of the All Tests Passed Bonus
for [*] shall be deemed to be [*] earned with respect to GLI, Nevada,
Mississippi and New Jersey.
	 
	 	 	 	[*] New Jersey Approval
	 
	 	 	 	If the New Jersey approval letter for [*] is received by LICENSEE on or
before [*] following the New Jersey approval Milestone Date (Milestone
4D-5a), then the Bonus for such Milestone shall be deemed to be [*]
earned; if the New Jersey approval letter for [*] is not received within
[*] after the New Jersey approval Milestone Date (Milestone 4D-5a) for
any reason, then the Bonus for such Milestone will not earned. For
purposes of determining whether the New Jersey approval Milestone is met
for [*], the provisions of the last sentence of Section 4.h of the
Agreement and Paragraph B.2(d) of this Exhibit D shall not apply.
LICENSOR and LICENSEE shall use best commercial efforts to gain approval
for [*] from New Jersey.
	 
	 	 	 	[*] GLI, Nevada and Mississippi Approval
	 
	 	 	 	LICENSOR and LICENSEE shall use best commercial efforts to gain approval
for [*] from GLI, Nevada and Mississippi.”




	 	 	 	 
	 	4.2	 	
Paragraph A.5 of Exhibit D is deleted in its entirety and replaced
with the following:



*Information has been omitted from this document and filed separately with the
Securities and Exchange Commission under a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.


- 3 -






 


“Subject to the provisions of Paragraph B of this Exhibit D, an amount equal to
the submittal Bonus for [*] for GLI (Milestone 4C-3b) shall be paid to LICENSOR
within [*] of receipt of approval for [*] from GLI.


Subject to the provisions of Paragraph B of this Exhibit D, with respect to
each of Nevada and Mississippi, an amount equal to the sum of [*] of the
Original Bonus Amounts, [*] of any earned New Bonus Amounts attributed to the
Pre-Submission Milestones for [*] and, to the extent earned, [*] of the
submittal Bonus for [*] for Nevada, Mississippi and New Jersey (Milestone
4C-3c) shall be paid to LICENSOR within [*] of receipt of approval for [*] for
Nevada or Mississippi. In the event that LICENSEE elects to substitute [*] for
[*] in either or both Nevada or Mississippi, payment of any Bonuses earned in
connection with [*] for such jurisdiction shall be paid within [*] of
completion of the corresponding approval Milestone for [*] (Milestones 4D-4c
and 4D-4d).


Subject to the provisions of Paragraph B of this Exhibit D, an amount equal to
the sum of [*] of the Original Bonus Amounts, [*] of any earned New Bonus
Amounts attributed to the Pre-Submission Milestones for [*], [*] of any earned
New Bonus Amounts attributed to the Pre-Submission Milestones for [*], and, to
the extent earned, [*] of the submittal Bonus for [*] in Nevada, Mississippi
and New Jersey (Milestone 4C-3c), [*] of the [*] to (Milestones 4C-3b and 4D-3)
and the New Jersey approval Bonus for [*] (Milestone 4D-4a) shall be paid to
LICENSOR within [*] of receipt of such New Jersey approval for [*].


Subject to the provisions of Paragraph B of this Exhibit D, with respect to
each of GLI, Nevada and Mississippi, an amount equal to the sum of [*] of any
earned New Bonus Amounts attributed to the Pre-Submission Milestones for [*]
and, to the extent earned, [*] of the [*] (Milestone 4D-3) shall be paid to
LICENSOR within [*] of completion of the corresponding approval [*] for GLI,
Nevada, and Mississippi (Milestones 4D-4b, 4D-4c and 4D-4d, as applicable).”



	 	 	 	 
	 	4.3	 	
Paragraph B.2(a) of Exhibit D is deleted in its entirety and
replaced with the following:
“The maximum amount of the penalty is a [*] reduction in the applicable
earned Bonus Pool (as defined below) plus a Refund of [*] (the “Maximum
Penalty”). With respect to either the [*] or [*] Trigger Dates (as
defined below), the applicable earned Bonus Pool shall be calculated as
follows:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Bonus Pool	 	Trigger
	Sell Version	 	Jurisdiction(s)	 	(To the extent earned)	 	Date
	
	 	
	 	
	 	

	[*]




	 	 	 	 
	 	4.4	 	
Paragraph B.2 (b) of Exhibit D is deleted in its entirety and
replaced with the following:



*Information has been omitted from this document and filed separately with the
Securities and Exchange Commission under a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.


- 4 -






 



	 	 	 	In the event that [*] for GLI approval (Milestone 4C-4a) is missed for
any reason, the penalty, if any, which is actually assessed will be
calculated using the original GLI approval Milestone Date of [*].
Approval by GLI means the first GLI approval for any GLI jurisdiction. In
the event that [*] submittal Milestone for Nevada, Mississippi or New
Jersey (Milestone 4C-3c) is missed, the penalty, if any, which is
actually assessed for Nevada, Mississippi or New Jersey will be
calculated based on [*] for such jurisdictions set forth in Exhibit C
(Milestone 4C-3c). The [*] GLI approval Milestone Date (Milestone 4C-4a)
and the [*] submittal Milestone Date for Nevada, Mississippi and New
Jersey are referred to as the “Trigger Dates”, applicable to [*] or [*].
	 
	 	 	 	In the event the [*] All Tests Passed Milestone Date (Milestone 4D-3) is
missed, the penalty, if any, which is actually assessed for each
jurisdiction, will be calculated based on such All Tests Passed Milestone
Date for [*] set forth in Exhibit C. The [*] All Tests Passed Milestone
Date for New Jersey, GLI, Nevada and Mississippi is referred to as the
“Trigger Date” for [*].”




	 	 	 	 
	 	4.5	 	
Paragraph B.2(c) of Exhibit D is deleted in its entirety and
replaced with the following:




	 	 	 	“With respect to each of the jurisdictions, considered separately, for
each of [*] or [*] and [*], the following penalties shall be assessed
cumulatively, as described below, against the applicable Bonus Pool for
each jurisdiction:




	 	 	 	 	 
	Delay after the applicable Trigger	 	 	 	 
	Date for each Jurisdiction	 	Penalty
	
	 	

	[*]



 

 
	 	 	 	Notwithstanding the foregoing, upon substitution of [*] for [*] in New
Jersey and, in the event that LICENSEE elects to substitute [*] for [*]
in either or both Nevada or Mississippi, upon such substitution in Nevada
or Mississippi, any delay incurred in submission (calculated pursuant to
Paragraph B.2 (d) below) shall be deemed locked as of the date of
successful completion of the All Tests Passed Milestone for the
substitute



*Information has been omitted from this document and filed separately with the
Securities and Exchange Commission under a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.


- 5 -






 



	 	 	 	[*] for purposes of calculating any penalty that may be charged against
the applicable Bonus Pool for [*]. In the event of substitution of [*]
for [*], it is the intention of the parties that any penalties resulting
from delays incurred in completion of the All Tests Passed for [*]
(calculated pursuant to Paragraph B.2 (d) below) only be charged against
the applicable Bonus Pool for [*].




	 	 	 	 
	 	4.6	 	
Paragraph B.2 (d) of Exhibit D is deleted in its entirety and
replaced with the following:




	 	 	 	“The following shall apply in determining the amount of any penalty that
may be assessed against the applicable Bonus Pool for any jurisdiction
with respect to either [*] or [*]:
	 
	 	 	 	With respect to [*] submission for New Jersey, Nevada and Mississippi and
with respect to completion of the [*] “all test pass” Milestone for all
jurisdictions, the aggregate delay after the applicable Trigger Date
shall be deemed to equal the sum of (i) the number of [*] after the
applicable Trigger Date that submission of [*] occurs in any of Nevada,
Mississippi or New Jersey or the “all test pass” Milestone for [*], as
applicable, is actually completed, and (ii) any delay incurred as a
result of Major Defects arising with respect to the Licensed Property
(excluding Defects solely caused by LICENSEE’s game development and Top
Box development) after submission to the applicable jurisdiction, such
delay being calculated as the number of [*] from the time LICENSOR is
notified of such Major Defect to the date the fix for such Defect is
submitted to LICENSEE. For example purposes only, if the submission
Milestone for [*] is met on [*] and, following submission, LICENSOR is
notified on [*] of a Major Defect, which LICENSOR fixes and such fix is
submitted to LICENSEE on [*], and subsequently, [*] approves [*] without
further delay, the [*] submission will be deemed to have been [*] late.




	 	 	 	 
	 	4.7	 	
Paragraph B.2 (e) of Exhibit D is deleted in its entirety and
replaced with the following:
“Notwithstanding anything to the contrary herein, including (d) above, if
the actual Trigger Date for any of the jurisdictions is [*] or more late,
then the penalty shall be a [*] reduction in the applicable Bonus Pool
for such Trigger Date and, with respect to [*] only, if the actual
Trigger Date for any of the jurisdictions is one year or more late, the
Refund owed by LICENSOR to LICENSEE shall equal an amount from [*] for a
single jurisdiction up to [*] for all jurisdictions.”




	5.	 	Miscellaneous




	 	 	5.1 Except as specifically modified or amended by the Amendment, all of the
terms and conditions of the Agreement are unmodified and shall remain in
full force and effect. In the event of conflict between the terms of the
Agreement and this Amendment, this Amendment shall control.




	 	 	 	 
	 	5.2	 	
This Amendment may be executed in any number of counterparts, each
of which shall be deemed to constitute but one and the same instrument.



*Information has been omitted from this document and filed separately with the
Securities and Exchange Commission under a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.


- 6 -






 



	 	 	 	 
	 	5.3	 	
Captions contained in this Amendment are inserted only as a matter
of convenience and reference. Such captions shall not be construed to
define, limit, extend or describe the intent of any provision of this
amendment.



          IN WITNESS WHEREOF, the parties hereto, have by their duly authorized
representatives executed this Agreement as of the day and year first above
written.




	 	 	 	 	 	 	 
	SIERRA DESIGN GROUP	 	WMS GAMING INC.
	 	 	 	 	 	 	 
	By:	 	
 /s/ Robert A. Luciano, Jr.
	 	By:
	 	 /s/ Brian R. Gamache
	 	 	


	 	 	 	

	Name: Robert A. Luciano, Jr.	 	Name: Brian R. Gamache
	Title: President	 	Title: President & CEO



- 7 -






 



ANNEX 1.2

[*]



*Information has been omitted from this document and filed separately with the
Securities and Exchange Commission under a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.


- 8 -






 


ANNEX 1.3

[*]



*Information has been omitted from this document and filed separately with the
Securities and Exchange Commission under a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.


- 9 -






 


ANNEX 2.3

MILESTONES

[*]



*Information has been omitted from this document and filed separately with the
Securities and Exchange Commission under a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.



- 10 -