Exhibit
10.26


 


Alpine Advisors LLC


825 Lakeshore Blvd


Incline Village, NV 89451


 


	
  March 12,
  2010

  	
   

  
	
   

  	
   

  
	
  Vic
  Salerno

  Chief Executive Officer

  American Wagering, Inc.

  675 Grier Drive

  Las Vegas, NV 89119

  	
   

  



 


Dear
Mr. Salerno:


 


This
Agreement (this “Agreement”) will confirm the basis upon which American
Wagering, Inc. (“Client”) has engaged Alpine Advisors LLC (“Alpine”) on an
exclusive basis, to provide advisory services with respect to the exploration
of: (i) strategic alternatives that may lead to a possible transaction
through sale, merger, joint venture or otherwise, whether effected in a single
transaction or a series of related transactions, in which 50% or more of the
voting power of Client or all or a substantial portion of its business or
assets are combined with or transferred to another company (a “Transaction”)
and (ii) financing alternatives (a “Financing”).


 


Section 1.                    Services to be
Rendered.  Alpine understands that the primary
focus of the Company in entering into this engagement is the identification of
prospective investors interest in the Company, and Alpine will assist the management of the Company through the
identification of such potential investors. Alpine agrees to perform such of
the following financial advisory services as Client reasonably and specifically
requests:


 


a)              Alpine will
familiarize itself to the extent it deems appropriate and feasible with the
business, operations, financial condition and prospects of Client;


b)             Alpine will
advise and assist Client in considering the desirability of effecting any
Transaction or Financing, and, if Client believes such a Transaction or
Financing to be desirable, in developing and implementing a general strategy
for accomplishing such Transaction or Financing;


c)              Alpine will, in
connection with either a Transaction or Financing, advise Client through the
process of identifying possible investors and negotiating an investment into
Client; and


d)             Alpine will
advise and assist Client in the course of its negotiation of a Transaction or
Financing and will participate in such negotiations as requested;


 


Client
may furnish, and, if Client enters into negotiations with a counterparty
regarding a possible Transaction, may request such counterparty to furnish, to
Alpine such information as Alpine reasonably requests in connection with the
performance of its services hereunder (all such information so furnished is
referred to herein as the “Information”). 
Client understands and agrees that Alpine, in performing its services
hereunder, will use and rely upon the Information as well as publicly available
information 


 

















 


regarding
Client and any counterparties and that Alpine does not assume responsibility
for independent verification of any information, whether publicly available or
otherwise furnished to it, concerning Client or any counterparties, including,
without limitation, any financial information, forecasts or projections,
considered by Alpine in connection with the rendering of its services.  Accordingly, Alpine shall be entitled to
assume and rely upon the accuracy and completeness of all such information and
is not required to conduct a physical inspection of any of the properties or
assets, or to prepare or obtain any independent evaluation or appraisal of any
of the assets or liabilities, of Client or any counterparty.  With respect to any financial forecasts and
projections made available to Alpine by Client or any counterparty and used by
Alpine in its analysis, Alpine shall be entitled to assume that such forecasts
and projections have been reasonably prepared on bases reflecting the best
currently available estimates and judgments of the management of Client or such
counterparty, as the case may be, as to the matters covered thereby.


 


Section 2.                    Fees.  Client shall pay Alpine for its services
hereunder a fee equal to:


 


a)              an initial
retainer, due upon execution of this agreement, of 250,000 shares of  AWI common stock (the “Securities”), which
Alpine agrees to hold until completion or termination of its engagement;


 


b)             In the event a
Transaction is consummated, 3% of the total enterprise value, defined as the
sum of the total consideration paid for Client’s equity plus the assumption of
all indebtedness, including the value of all lease obligations and any earn-out
or contingent participation.  Such fee
will be payable at the time of the closing of such Transaction; and


 


c)              In the event
that Client consummates a Financing, defined as any offering of debt, equity or
equity-linked securities either individually or in combination, Client agrees
to pay Alpine a fee of 3.5% of the principal amount raised at the time of the
closing of  such Financing.


 


d)             In the event
that Client consummates a Financing with any of the following entities or
persons identified in Exhibit A, the fee payable to Alpine will be equal
to 2.625% of the principal amount raised at the time of closing of such
Financing.


 


e)              During the
six-month holding period under which Alpine’s Securities shall be Restricted
Securities (as defined below), should the Client be one day late in filing one
of its required quarterly public disclosure filings (either its Form 10-K
or a Form 10-Q), then Client shall pay to Alpine an additional
compensation of 25,000 shares of AWI common stock, unregistered and restricted
under Rule 144.  Should the Client
continue to be delinquent for the same filing for sixty-one (61) consecutive
days thereafter, the Client shall pay to Alpine an additional compensation of
25,000 shares of AWI common stock, unregistered and restricted under Rule 144.  Client and Alpine acknowledge and agree that
two payments of AWI common stock only occur if the Client is late on a single
quarterly public disclosure filing and remains delinquent for sixty-one
consecutive days.  It does not apply if
the Client is late on one quarterly public disclosure filing, 


 


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pays
the first allotment of 25,000 shares of common stock, and is subsequently late
on a second quarterly filing; the Client is not obligated to pay to Alpine an
additional 25,000 shares of AWI common stock.


 


Section 3.                    Investment Representations


 


Alpine
is acquiring the Securities for its own account for investment and not with any
intention or view towards the distribution of all or any part thereof, subject,
however, to any requirement of law that the disposition of Alpine’s property
shall at all times be within its control. Alpine hereby acknowledges that it or
its representative have interviewed the Client’s management and reviewed the
Client’s public filings carefully, including reviewing the Financial Statements
disclosed in the public filings and, in addition, has been furnished with or
has had access to such other information, financial or otherwise, as it deems
necessary to make an informed investment decision with respect to its purchase
of the Securities. Alpine further acknowledges that it or its representative
has personally discussed the Client’s business, financial condition, and future
plans, as well as the terms and conditions of engagement, with an officer of
the Client. Alpine further acknowledges that it is aware that its investment in
the Client is a speculative investment with limited liquidity and subject to
the risk of complete loss and further represents and warrants that Alpine has
previously made venture capital.


 


Section 4.                    Restrictive
Securities


 


Alpine
understands that the Securities are characterized as “Restricted Securities”
under the federal securities laws inasmuch as they are being acquired from the
Client in a transaction not involving a public offering, and that under such
laws and applicable regulations such Securities may be resold without
registration under the Act only in certain limited sets of circumstances.  Alpine
is aware of the provisions of Rule 144 promulgated under the Securities
Act which permits limited resale of shares purchased in a private placement
subject to the satisfaction of certain conditions, including, among other
things, the existence of a public market for the shares, the availability of
certain current public information about the Company, the resale occurring not
less than six months after a party has purchased and paid for the security to
be sold.


 


Section 5.                    Company Registration


 


If (but without any
obligation to do so), the Client proposes to register any of its stock or other
securities under the Act in connection with the public offering of such
securities (other than (i) a registration relating solely to employee
benefit plans, (ii) a registration relating solely to an SEC Rule 145
transaction, (iii) a registration effected pursuant to a form of
registration statement that is not available for registration of the Registrable
Securities for sale to the public, (iv) a registration with respect to
which the underwriters believe that the inclusion of any such Registrable Securities
in the offering without reduction of the shares to be registered by the Client
is not compatible with insuring the success of such offering), the Client shall
provide Alpine with written notice of such determination. Upon the written
request of Alpine given within


 


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twenty (20) days after
receipt of any such notice from Client, Client shall cause to be registered
under the Act all of the Registrable Securities that Alpine has requested be
registered.


 


Section 6.                    Expenses.


 


In
addition to any fees that may be payable to Alpine hereunder and regardless of
whether any Transaction is proposed or consummated, Client hereby agrees, from
time to time upon request, to reimburse Alpine for all reasonable fees and
disbursements of Alpine’s counsel, any and all of Alpine’s reasonable travel
and other out-of-pocket expenses incurred in connection with any actual or
proposed Transaction, or otherwise arising out of Alpine’s engagement
hereunder.  Additionally, Client agrees
to pay all reasonable costs and expenses for Alpine to respond to any request,
whether made verbally or in writing, by any regulatory agency regarding any
proposed or actual Transaction or Financing or Alpine’s engagement
hereunder.  Upon execution of this
Agreement, Client agrees to advance $5,000 to Alpine for anticipated
out-of-pocket expenses.  Client further
agrees to advance additional funds as requested by Alpine to replenish such
$5,000 expense account.


 


Section 7.                    Termination of
Engagement.


 


This
Agreement and Alpine’s engagement hereunder may be terminated by either Client
or Alpine at any time, with or without cause, upon written advice to that
effect to the other party, provided, however, that:


(a)                         Alpine will be entitled to
its full fee as outlined in Sections 2(a), 2(b), 2(c), and 2(d) hereof, as
applicable, in the event that Client enters into a definitive agreement for a
Transaction or Financing with an investor(s) introduced by Alpine or one
of the entities or persons identified in Section 2(c) prior to
eighteen months after the date of such termination and such Transaction or
Financing is subsequently consummated; and


(b)                        the provisions of this Section 4
and of Sections 2, 3, 7, 8 and 9 hereof shall survive such termination.


 


Notwithstanding anything else in this engagement letter to
the contrary, no fees will be payable after the termination of Alpine’s
engagement if Alpine’s engagement was terminated as a result of a material
breach of Alpine which it failed to cure within ten days after written notice
from Client.


 


Section 8.                    Confidentiality


 


Except for disclosure to potential investors and to those necessary
persons or entities in the fulfillment of Alpine’s duties under this Agreement,
Alpine agrees that it will keep confidential and will not disclose or divulge
any confidential, proprietary or secret information obtained from the Client,
and which the Client has prominently marked “confidential”, “proprietary” or “secret”
or has otherwise identified as being such, pursuant to financial statements,
reports and other materials submitted by the Client as required 


 


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hereunder, or pursuant to visitation or inspection rights granted
hereunder unless such information is already known to the Shareholders or is or
becomes publicly known.


 


Section 9.                    Reliance on
Others.


 


Client
confirms that it will rely on its own counsel, accountants and other similar
expert advisors for legal, accounting, tax and other similar advice.


 


Section 10.              Publicity.


 


In
the event of consummation of any Transaction or Financing, Alpine shall have
the right, at its own expense, to disclose its participation in such
Transaction, including, without limitation, the placement of “tombstone”
advertisements in financial and other newspapers and journals.  Alpine agrees that Client shall have the
right to announce publicly the execution of this Agreement with Alpine subject
to Alpine’s prior approval of the contents of such announcement subject to any
requirements by law.


 


Section 11.              Scope of
Responsibility.


 


Neither
Alpine (nor any directors, officers, or employees) shall be liable to Client or
to any other person claiming through Client for any claim, loss, damage,
liability, cost or expense suffered by Client or any such other person arising
out of or related to Alpine’s engagement hereunder except for a claim, loss or
expense that arises primarily out of or is based primarily upon any action or
failure to act by Alpine Advisors LLC, other than an action or failure to act undertaken
at the request or with the consent of Client, that is found in a final judicial
determination (or a settlement tantamount thereto) to constitute bad faith,
willful misconduct or gross negligence on the part of Alpine.


 


Section 12.              Indemnity and Contribution.


 


Client
agrees to indemnify and hold harmless Alpine Advisors LLC directors, officers,
and employees to the full extent lawful against any and all claims, losses,
damages, liabilities, costs and expenses as incurred (including all reasonable fees
and disbursements of counsel and all reasonable travel and other out-of-pocket
expenses incurred in connection with investigation of, preparation for and
defense of any pending or threatened claim and any litigation or other  proceeding arising there from, whether or not
in connection with pending or threatened litigation in which Alpine Advisors
LLC or any other indemnified person is a party) arising out of or related to
any actual or proposed Transaction or Financing or Alpine Advisors LLC’s
engagement hereunder; provided , however, there shall be excluded from such
indemnification any such claim, losses, damages, liabilities, costs or expenses
that arise primarily out of or are based primarily upon any action or failure
to act by Alpine, other than an action or failure to act undertaken at the
request or with the consent of Client, that is found in a final judicial
determination (or a settlement tantamount thereto) to constitute bad faith,
willful misconduct or gross negligence on the part of Alpine Advisors LLC.  


 


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In
the event that the foregoing indemnity is unavailable or insufficient to hold
Alpine Advisors LLC and other indemnified parties harmless, then Client shall
contribute to amounts paid or payable by Alpine Advisors LLC and other
indemnified parties in respect of such claims, losses, damages, liabilities,
costs and expenses in such proportion as appropriately reflects the relative
benefits received by, and, if applicable law does not permit allocation solely
on the basis of benefits, fault of, Client and Alpine Advisors LLC in
connection with the matters as to which such claims, losses, damages,
liabilities, costs and expenses relate and other equitable considerations,
subject to the limitation that in any event Alpine Advisors LLC aggregate
contribution in respect of such claims, losses, damages, liabilities, costs and
expenses will not exceed the amount of fees actually received by Alpine
Advisors LLC pursuant to this Agreement. 
For purposes hereof, relative benefits to Client and Alpine Advisors LLC
of any Transaction or Financing shall be deemed to be in the same proportion
that the total value received or contemplated to be received (in connection
with either a Transaction or Financing) by Client and/or its security holders
in connection with such relevant Transaction bears to the fees paid to Alpine
Advisors LLC pursuant to it engagement in respect of such Transaction or
Financing.


 


Client
will not, without the prior written consent of Alpine Advisors LLC, settle any
litigation relating to Alpine Advisors LLC’s engagement hereunder unless such
settlement includes an express, complete and unconditional release of Alpine
Advisors LLC and its affiliates (and their respective control persons, directors,
officers, employees and agents) with respect to all claims asserted in such
litigation or relating to Alpine Advisors LLC’s engagement hereunder; such
release to be set forth in an instrument signed by all parties to such
settlement.


 


Section 13.              Governing Law;
Jurisdiction.


 


This
Agreement shall be governed by and construed in accordance with the laws of the
State of Nevada without regard to the conflicts of laws provisions
thereof.  Any right to trial by jury with
respect to any claim, action, suit or proceeding arising out of this Agreement
or any of the matters contemplated hereby is waived.  Client also hereby irrevocably submits to the
exclusive jurisdiction of the courts of Reno, Nevada in any proceeding arising
out of or relating to this Agreement, and to the federal district courts
located in such City, agrees not to commence any suit, action or proceeding
relating thereto except in such courts, and waives, to the fullest extent
permitted by law, the right to move to dismiss or transfer any action brought
in such court on the basis of any objection to personal jurisdiction or venue.


 


Section 14.              No Rights in
Shareholders, etc.


Client
recognizes that Alpine has been engaged only by Client, and that Client’s
engagement of Alpine is not deemed to be on behalf of and is not intended to
confer rights upon any shareholder, partner or other owner of Client or any
other person not a party hereto as against Alpine or any of its affiliates or
any of their respective directors, officers, agents, employees or
representatives.  Unless otherwise
expressly agreed, no one other than Client is authorized to rely upon Client’s
engagement of Alpine or any statements, advice, opinions or conduct by Alpine,
and Client will not disclose such statements, advice, 


 


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opinions
or conduct to others (except Client’s professional advisors and except as
required by law).  Without limiting the
foregoing, any opinions or advice rendered to Client’s Board of Directors or
management in the course of Client’s engagement of Alpine are for the purpose
of assisting the Board or management, as the case may be, in evaluating any
Transaction and do not constitute a recommendation to any shareholder of Client
concerning action that such shareholder might or should take in connection with
any Transaction. Alpine’s role herein is that of an independent contractor;
nothing herein is intended to create or shall be construed as creating a
fiduciary relationship between Client and Alpine.


 


Section 15.              Disclosure.


 


Client
acknowledges that Alpine may have and may continue to have investment banking,
financial advisory and other relationships with parties other than Client
pursuant to which Alpine may acquire information of interest to Client.  Alpine shall have no obligation to disclose
such information to Client.


 


Section 16.              Miscellaneous.


 


Nothing
in this Agreement is intended to obligate or commit Alpine or any of its
affiliates to provide any services other than as set out above.  This Agreement may be executed in two or more
counterparts, all of which together shall be considered a single
instrument.  In order to comply with the USA Patriot Act, Alpine must obtain, verify
and record information that identifies each entity (or individual) that enters
into a business relationship with Alpine. 
As a result, in addition to Client’s corporate name and address, Alpine
will obtain Client’s corporate tax identification number and certain other
information.  Alpine may also request
relevant corporate resolutions and other identifying documents.  This Agreement constitutes the entire
agreement, and supersedes all prior agreements and understandings (both written
and oral) of the parties hereto with respect to the subject matter hereof, and
cannot be amended or otherwise modified except in writing executed by the
parties hereto.  The provisions hereof
shall inure to the benefit of and be binding upon the successors and assigns of
Client and Alpine.


If
you are in agreement with the foregoing, please sign and return the attached
copy of this Agreement, whereupon this Agreement shall become effective as of
the date hereof.


 


	
   

  	
   

  	
  Sincerely,

  
	
   

  	
   

  	
  ALPINE
  ADVISORS LLC.

  
	
   

  	
   

  	
  By

  	
  /s/
  Don R. Kornstein

  
	
   

  	
   

  	
  Don
  R. Kornstein, Managing Member

  
	
  AGREED
  TO:

  	
   

  	
   

  
	
  American
  Wagering, Inc.

  
	
  By

  	
  /s/ 

  	
  Victor
  Salerno

  	
   

  
	
  Name:

  	
  Vic
  Salerno

  
	
  Title:

  	
  Chief
  Executive Officer

  
							



 


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Exhibit A


 


William-Hill/William-Hill
Online; Stations Casinos, Inc./Fertitta Family; Playtech, Inc.;
CyberArts/Intralot; Big Stick Media; and Bet Fair/ODS Technologies L.P. dba TVG
Network.


 


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