EXHIBIT 10.3
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of July 29, 1997,
between Take Two Interactive Software, Inc., a Delaware
corporation with offices at 575 Broadway, New York, New
York 10012 (collectively, "Distributor") and GameTek,
Inc., a Delaware Corporation with offices at 3 Harbor
Drive, Suite 110, Sausalito, California 94965 ("GameTek").
W I T N E S S E T H :
WHEREAS, GameTek owns or controls the rights in
and to the Game Titles (defined below), and desires to
enter into this agreement providing for Distributor's
distribution of Software Devices (defined below) embodying
the Game Titles;
WHEREAS, Distributor is engaged in the business
of distributing, marketing, selling, advertising and
otherwise exploiting Software Devices and desires to
distribute the Software Devices embodying the Game Titles
on the terms provided herein;
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS:
Capitalized terms used herein, but not otherwise
defined herein, shall have the meanings set forth below:
1.1 "Basic Term" means the period commencing on
the date on which such party hereto has executed and
delivered to the other party hereto a copy of this
Agreement, and ending on the third (3rd) anniversary of
the release of the first Game Title authorized to be
released hereunder but not later than four (4) years from
the date hereof; provided, however, that the Basic Term
shall terminate sooner as to any particular Game Title on
the date on which GameTek's rights with respect to such
Game Title terminate, if they terminate prior to such
third anniversary date.
1.2 "Bug" means a repeatable phenomenon of
unintended events or actions during the running of a
Software Device under normal conditions that results in:
(a) the software component of such Software
Device being unable to perform repeatedly and without
interruption in the manner in which such Software Device
is commonly intended to be used; or
(b) the destruction or corruption of the
data embodied in such Software Device.
1.3 "Distributed Product" or "Distributed
Products" means Software Devices embodying a Game Title
and playable on the Game Machine.
1.4 "Documentation" means the technical
documentation for each Game.
1.5 "Exploitation Period" with respect to any
Game Title means the date commencing on the Effective Date
and ending on the expiration of the Basic Term with
respect to such Game Title.
1.6 "Game Machine" means the Nintendo Gameboy
portable console game system.
1.7 "Game Title" or "Game Titles" means,
individually or collectively, as the context requires, the
Gameboy software games developed by or on behalf of
GameTek that are set forth on Schedule "A" .
1.8 "Manual" means a document that describes
in reasonable detail in the English language (and any
other languages in which such documents exist) the
operation and functions of the computer software and
contains instructions for using the Distributed Products.
1.9 "SKU" or "sku" means stock keeping unit.
1.10 "Software Device" means any device on or
by which computer software and its associated visual
images, with or without sound, may be embodied or recorded
for later operation, manipulation or communication to
users and which are designed for use with the Game
Machine.
1.11 "Territory" means such countries in the
European Economic Community as constituted on the date
hereof in which GameTek has the right to market and sell
Distributed Products.
1.12 "Third Party Royalties" means, with respect
to any unit of any Game Title distributed hereunder, the
aggregate of all royalties payable by GameTek to third
parties in respect of the sale or other disposition of
such unit.
2. RIGHTS AND OBLIGATIONS OF Distributor:
Subject to the terms and conditions hereof,
GameTek hereby grants to Distributor, and Distributor
hereby accepts and agrees to perform and discharge, the
following rights and obligations, which shall be deemed
exclusive within the Territory during the Basic Term:
2.1 Distribution Rights and Obligations.
(a) GameTek hereby engages Distributor, and
Distributor hereby agrees to be engaged by GameTek, as
GameTek's sole and exclusive seller and distributor of
Distributed Products throughout the Territory during the
Exploitation Period. During the Exploitation Period for
each Game Title, Distributor shall distribute such
Distributed Products through all usual and customary
wholesale channels, and Distributor shall order and
maintain inventories of appropriate quantities of
Distributed Products with respect to each Game Title as
shall be reasonably necessary to meet anticipated demand.
(b) Distributor shall have the right to
use, publish and permit others to use and publish
GameTek's name, and, subject to any contractual
restrictions of which GameTek advises Distributor prior to
such use or publication, any names of or trademarks
associated with, or embodied in, any Game Title or
reproduction or simulation thereof, the script, speech,
images, characters, characterizations, designs, graphics,
art work and other characteristics associated with each
Game Title, and the name of each Game Title (collectively,
the "Marks"), in connection with the sale, advertising,
distribution and exploitation thereof. Prior to
commencing distribution of any Distributed Products in any
country in the Territory, Distributor shall verify the
existence of GameTek's rights to distribute such products
in such country, the obligations and conditions to which
such rights are subject, and the extent, if any, of Third
Party Royalties payable in respect of such distribution.
Distributor shall comply with the provisions of the
agreements with such third parties to the extent
Distributor is apprised of such provisions by GameTek,
insofar as they relate to Distributor's distribution of
Distributed Products hereunder.
(c) Distributor shall have the right,
solely for advertising, publicity and promotional
purposes, to perform and display the Distributed Products
publicly, and to permit the public performance thereof,
but only in a manner consistent with ordinary custom and
practice in the industry for the promotion of products
similar to the Game Titles.
(d) Distributor shall have the right to use
all artwork, textual material and other materials
furnished to Distributor by GameTek in connection with the
Distributed Products, including advertising, packaging and
wrapping materials (collectively, "Packaging and
Promotional Materials"), to the extent created by or on
behalf of GameTek in connection with Distributed Products.
(e) All rights in and to the Game Titles,
Packaging and Promotional Materials and/or Marks not
expressly granted to Distributor herein are reserved to
GameTek.
2.2 Intellectual Property Rights.
(a) As between GameTek and Distributor,
GameTek retains all copyright, patent, trade secret, trade
mark and trade name rights in and to the distributed
products, including all packaging, designs, logos,
slogans, advertising materials and promotional materials
and in all other materials delivered by GameTek to
Distributor (collectively, "GameTek Property"), and
Distributor will not have or acquire any right, title or
interest therein or thereto under any circumstance
whatsoever except for the specific rights granted herein.
Distributor shall not, during the Basic Term or at any
time thereafter, take any action that materially adversely
affects, GameTek's ownership of or rights in the GameTek
Property or the validity thereof, nor shall Distributor
apply for any registration or file any document or take
any action that would adversely affect GameTek's ownership
of or rights in the GameTek Property or knowingly aid or
abet anyone else in doing so, or use or authorize the use
of any trademark, trade name or word, symbol or
combination thereof or other designation identical with or
confusingly similar to the trademarks and/or trade names
that constitute part of the GameTek Property. Distributor
will not alter, remove, obscure, erase or deface any
proprietary rights notices contained on or incorporated in
any SKU or the packaging of any SKU. If Distributor is
called upon or required to produce any packaging,
advertising and promotional materials for a Game Title,
Distributor will include thereon such proprietary rights
notices as may be designated and approved by GameTek.
(b) Promptly upon request, Distributor will
provide GameTek with a template for Distributor's logo and
legend for inclusion on any packaging, advertising or
promotional materials produced in connection with any Game
Title, which template shall be reasonably acceptable to
GameTek. GameTek will include Distributor's logo and
legend, as incorporated in any such approved template, on
all such packaging materials with respect to Game Titles.
3. MANUFACTURING; PRICING.
3.1 GameTek represents that, prior to the
delivery of any Game Title hereunder, it shall have
designed and have the sole rights to, or obtained from
third parties all rights to the design of, the computer
software and all documentation relating to such Game
Title, to the extent necessary for same to be manufactured
into Distributed Products and distributed by Distributor
pursuant to this Agreement, and operated and perceived
through the Game Machines and otherwise used by end-users.
3.2 Distributor shall notify GameTek from time
to time reasonably in advance of any required delivery
date of the number of units that Distributor wishes
GameTek to have manufactured in order to enable
Distributor to fulfill its distribution requirements for
each Game Title. Each such notification shall be
accompanied by (i) a wire transfer of funds sufficient,
either to an account designated by GameTek or directly to
Nintendo of Japan, Inc. ("Nintendo"), to enable GameTek to
pay for the manufacture and shipment into the destination
country of the Distributed Products so ordered and to
insure such Distributed Products through delivery to
Distributor, or, if requested by GameTek, (ii) the
provision of an irrevocable documentary letter of credit
in favor of GameTek in form satisfactory to GameTek, for
the full amount of the manufacturing and shipping cost of
the goods ordered as well as the cost of insuring such
goods in transit. The aggregate of such manufacturing,
shipping and insurance costs is referred to herein as
"GameTek's Cost". Promptly after its receipt of such
order and funds or letter of credit, GameTek shall arrange
with Nintendo for the manufacture and shipment of such
Distributed Products, including the posting of requisite
letters of credit in favor of the manufacturer, and for
the appropriate insurance thereon. The balance, if any,
of GameTek's Cost, shall be payable by Distributor to
GameTek ten (10) days after receipt of such unit by the
Distributor. GameTek will cooperate, at Distributor's
cost and expense, with Distributor's efforts to establish
an agreement with Nintendo for Distributor's direct
payment to Nintendo of GameTek's Cost. If such an
agreement is reached it may include provision for direct
shipment by Nintendo of Distributed Products to
Distributor provided that Nintendo simultaneously
furnishes GameTek with a duplicate of all invoices,
packing and shipping documentation relating to such
shipment.
3.4. The purchase price payable to GameTek by
Distributor for each unit of Distributed Product shall be
GameTek's Cost plus (i) the amount of any applicable Third
Party Royalty and (ii) $0.15 (such Third Party Royalty and
$0.15 per unit being referred to as the "GameTek Share").
GameTek's Share shall be payable by Distributor to GameTek
ten (10) days after receipt of such unit by the
Distributor. Transportation from GameTek's warehouse in
the destination country to Distributor or its customers
shall be arranged and paid for by Distributor. GameTek
will cooperate, at Distributor's cost and expense, with
Distributor's efforts to establish agreement with payees
of Third Party Royalties for Distributor's direct payment
of such royalties to such payees
3.5 Distributor shall be responsible, at its
sole cost and expense, for the marketing, promotion and
advertising of each Game Title, including co-operative
advertising credits, shelf or "slot" fees and any similar
discounts, credits or payments, provided that the amount
to be spent thereon and the manner in which such
expenditures shall be made shall be determined exclusively
by Distributor in the exercise of its reasonable business
judgment.
3.6 To the extent that Distributor has paid
the GameTek Share in respect of any game that is
subsequently physically returned by the customer to
Distributor, Distributor shall have the right to recoup
the amount of the GameTek Share previously paid by it to
GameTek in respect of such unit from the GameTek Share
payable in respect of any units sold after such return.
Except to the extent specified herein, the GameTek Share
paid in respect of any unit sold hereunder shall be
non-refundable.
4. PACKAGING, TESTING, ETC.
4.1 GameTek will place the machine, medium and
other operating requirements (such as minimum memory
capacity) on the front outside of each Distributed
Product, and will shrink-wrap all Distributed Product and
will incorporate into the design of the packaging all
relevant bar code information.
4.2. GameTek shall use its reasonable best
efforts to ensure that each Distributed Product shall be
free of Bugs. Each party shall immediately notify the
other party in writing if it discovers any Bugs or other
defects in any Distributed Products.
4.3. All packaging for the Distributed Products
shall contain credit to Distributor as distributor,
GameTek as publisher and to appropriate third parties.
The forms of such credits with respect to Distributor and
GameTek shall be substantially in the forms of such
credits as appear on units of such products as previously
distributed by or for GameTek or as GameTek may otherwise
advise Distributor prior to Distributor's order for such
product. The credits related to such third parties shall
be in such form, substance and scope as to comply with
GameTek's contractual obligations relating thereto.
4.4 All title and other ownership rights to
each Distributed Product incorporating a Game Title shall
vest in Distributor at such time as Distributor shall have
paid to GameTek the full purchase price thereof.
Distributor shall bear the risk of loss of any such
Distributed Product from and after the moment at which
such Distributed Product is shipped from the
manufacturer's facility.
4.5 Distributor shall use its reasonable best
efforts, consistent with standard industry custom and
practice, to sell and to distribute the Distributed
Products throughout the Territory during the Basic Term,
subject to the terms to this Agreement.
5. TERMINATION OF RIGHTS; PAYMENTS.
5.1 All payments owing to GameTek hereunder
shall be made by wire transfer of immediately available
funds to an account specified by GameTek in a notice given
to Distributor at least two (2) business days prior to the
due date of such payment. Unless and to the extent
expressly provided otherwise in this Agreement, each party
hereto shall bear all costs and expenses incurred in
connection with the performance of its obligations
hereunder, without any right of contribution from the
other party hereto.
6. ACCOUNTINGS: RIGHT OF INSPECTION; LATE PAYMENT.
6.1 Distributor shall provide GameTek with an
accounting of all sales of Distributed Product and all
returns credited under Section 3.6 at least quarterly
during the Basic Term and following the end of any sell-off period.
6.2 Distributor shall maintain, throughout the
term of this Agreement and for three years thereafter, at
its principal executive offices complete and accurate
books of account concerning sales of the Distributed
Products hereunder. Upon two business days' prior written
notice, GameTek, or its agents on its behalf, may examine
Distributor's books and records relating to the sale of
the Distributed Products in order to verify the accuracy
thereof, during Distributor's normal business hours;
provided that GameTek may not conduct more than one such
audit in any six month period.
6.3 If Distributor fails or refuses to pay any
amount owing to GameTek hereunder when due, then
Distributor shall reimburse GameTek for any collection
expenses it may incur and the amount not timely paid,
including any such collection expenses, shall bear
interest at a rate per annum equal to 3% over the prime
rate announced from time to time by Citibank, N.A.,
accruing from the first date on which such monies were due
and owing.
7. REPRESENTATIONS AND WARRANTIES:
7.1 Distributor hereby warrants and represents
that:
(i) This Agreement has been duly
authorized, executed and delivered by Distributor;
Distributor has the full power and authority to enter into
this Agreement and to perform its obligations hereunder
and is free to enter into this Agreement; this Agreement
constitutes the valid and binding obligation of
Distributor, enforceable in accordance with its terms; and
the making of this Agreement by Distributor does not
violate any agreement, right or obligation existing
between Distributor on the one hand, and any other person,
firm or corporation, on the other hand;
(ii) No consents of any third parties are
required for Distributor to enter into this Agreement; and
(iii) Distributor shall devote
substantially the same degree of diligence, effort,
resources and care to the performance of its obligations
hereunder as it devotes to the distribution of its
proprietary products or to the performance of its current
contractual obligations to third parties with respect to
similar products.
7.2 GameTek hereby represents and warrants
that:
(i) This Agreement has been duly
authorized, executed and delivered by GameTek; GameTek has
the full power and authority to enter into this Agreement
and to perform its obligations hereunder and is free to
enter into this Agreement; this Agreement constitutes the
valid and binding obligation of GameTek, enforceable in
accordance with its terms; the making of this Agreement by
GameTek does not violate any agreement, right or
obligation existing between GameTek on the one hand, and
any other person, firm or corporation, on the other hand,
nor is any third party consent required for GameTek to
enter into this Agreement; and GameTek has not heretofore
granted such rights to the Game Titles to any other
person, party or company for use in connection with the
Distributed Products;
(ii) Neither the computer software, nor
the documentation incorporated in any Game Title, nor the
Game Title itself distributed by Distributor hereunder, or
any part of any character, object, sound or music embodied
therein infringes or shall infringe upon any common law or
statutory rights of any third party including, without
limitation, contractual rights, patents, copyrights, trade
secrets, rights of privacy, or other intellectual property
rights. The Distributed Products will be free of material
defects in materials and workmanship.
7.3 Distributor shall make no warranties or
representations of any kind with respect to the
Distributed Products to any purchaser end-user thereof,
whether express or implied. To the extent permitted by
applicable law, GameTek's warranty set forth in the last
sentence of Section 7.2(iii) above, is the only warranty,
express or implied, that GameTek will make to any third
party with respect to the Distributed Products (such
warranty to be limited to ninety (90) days from the date
of purchase) and all other implied warranties including
but not limited to the implied warranties of
merchantability and fitness for a particular purpose are
hereby disclaimed. Any product recalls shall be GameTek's
sole responsibility.
8. INDEMNIFICATION; INSURANCE.
8.1 Distributor shall indemnify GameTek, its
subsidiaries, parents and affiliates and their respective
officers, directors, employees and agents (the "GameTek
Parties") and undertakes to defend the GameTek Parties,
and hold the GameTek Parties harmless from any actions,
claims, suits, proceedings, loss, liability, cost, expense
(including reasonable attorney's fees) or damage suffered
by any of them arising out of or connected in any way with
any acts, omissions by Distributor or its agents in the
performance of its duties hereunder or any breach by
Distributor of its representations, warranties or
agreements herein made, including without limitation the
reasonable costs of any direct claim by GameTek against
Distributor by reason of the foregoing. GameTek shall not
settle any such third party claim or proceeding without
Distributor's prior written consent, which shall not be
unreasonably withheld or delayed. Distributor shall have
the right, at its expense, to participate in the defense
thereof with counsel of its choice, provided further that
GameTek shall have the right at all times, in its sole
discretion, to retain or resume control of the conduct
thereof. Distributor shall provide GameTek with any
assistance that GameTek reasonably requests in connection
therewith.
8.2 GameTek shall indemnify Distributor, its
subsidiaries, parents and affiliates and their respective
officers, directors, employees and agents (the
"Distributor Parties") and undertakes to defend the
Distributor Parties and hold the Distributor Parties
harmless from any actions, claims, suits, proceedings,
loss, liability, cost, expense (including reasonable
attorney's fees) or damage suffered by any of them arising
out of or connected in any way with any acts, omissions by
GameTek or its agents in the performance of its duties
hereunder or breach by GameTek of its representations,
warranties and agreements herein made, including without
limitation the reasonable costs of any direct claim by
Distributor against GameTek by reason of the foregoing.
Distributor shall promptly notify GameTek of any such
third party claim or proceeding and shall not settle any
such claim without GameTek's prior written consent, which
shall not be unreasonably withheld or delayed. GameTek
shall have the right, at GameTek's expense, to participate
in the defense thereof with counsel of GameTek's choice,
provided that Distributor shall have the right at all
times, in Distributor's sole discretion, to retain or
resume control of the conduct thereof. GameTek shall
provide Distributor with any assistance that Distributor
reasonably requests in connection therewith.
8.3 (a) Distributor shall obtain and maintain
at its own expense, product liability and errors and
omissions insurance from a recognized and qualified
insurance company naming GameTek as insured in the amount
of at least $1 million per occurrence and $3 million in
the aggregate against any claims, suits, loss or damage
arising out of any personal injury or property damage
arising out of the Distributed Products. Such policy
shall not be subject to cancellation or material amendment
except after thirty (30) days prior written notice to
GameTek. GameTek will be named as an additional insured
on such policy. As proof of such insurance, a fully paid
certificate of insurance will be submitted to GameTek by
Distributor on or before the execution of this Agreement.
(b) GameTek shall obtain and maintain at
its own expense, product liability and errors and
omissions insurance from a recognized and qualified
insurance company naming Distributor as insured in the
amount of at least $1 million per occurrence and $3
million in the aggregate against any claims, suits, loss
or damage arising out of any personal injury or property
damage. Such policy shall not be subject to cancellation
or material amendment except after thirty (30) days prior
written notice to Distributor. Distributor will be named
as an additional insured on such policy. As proof of such
insurance, a fully paid certificate of insurance will be
submitted to Distributor by GameTek on or before the
execution of this Agreement.
9. EXPIRATION OR TERMINATION OF AGREEMENT:
9.1 In the event that GameTek materially
breaches this Agreement with respect to a Game Title
hereunder and such breach is not cured within thirty (30)
days after receipt of notice from Distributor of such
breach, then, without in any way limiting any of
Distributor's other rights and remedies in such event, and
notwithstanding any provision to the contrary contained
herein, Distributor shall have the right at its sole
election to terminate this Agreement with respect to the
affected Game Title to which GameTek's material breach
relates, upon written notice to GameTek.
9.2 In the event Distributor fails to render
any accounting or pay any monies owing to GameTek
hereunder within ten (10) days of the date on which due
(subject to reasonable events of force majeure), or if
Distributor otherwise materially breaches this Agreement
with respect to a Game Title hereunder and such breach is
not cured within sixty (60) days after receipt of notice
from GameTek of such breach, then without in any way
limiting any of GameTek's other rights and remedies in
such event, and notwithstanding any provision to the
contrary contained herein, GameTek shall have the right at
its sole election to terminate this Agreement.
9.3 If either party to this Agreement files a
petition in bankruptcy or is adjudged a bankrupt, or if a
petition in bankruptcy is filed against such party and is
not dismissed with prejudice within ninety (90) days (the
"bankrupt or insolvent party"), the other party shall have
the right to terminate this Agreement, upon written notice
to the bankrupt or insolvent party.
9.4 Upon any expiration or termination of this
Agreement, all rights granted to Distributor herein shall
immediately revert to GameTek, with the consequences
described below. If the expiration or termination relates
to less than all Game Titles covered hereby, then the
provisions of this Section 10.4 shall relate only to such
affected Game Titles:
(i) Distributor shall continue to satisfy
all of its payment obligations then or at any time
thereafter becoming due and payable;
(ii) GameTek shall thereafter be free to
distribute or authorize others to distribute the affected
Game Titles;
(iii) Distributor shall not thereafter
advertise, distribute or sell Distributed Products
incorporating the affected Game Titles, and will cease all
display, advertising and use of related GameTek Property,
except that Distributor may, if the termination of this
Agreement was not by GameTek as a result of a breach or
default by Distributor, sell off existing inventories of
such Distributed Products in the Territory on a non-exclusive basis
for a period of six (6) months, subject to
all the other terms and conditions hereof. If this
Agreement is terminated by GameTek by reason of a breach
or default by Distributor, the Distributor shall, at
GameTek's option, list all such inventory and provide
GameTek with evidence thereof satisfactory to GameTek, or
ship such inventory (payment to be made by GameTek C.O.D.
on receipt of such shipment) at Distributor's expense to a
location specified by GameTek. Distributor shall deliver
to GameTek a complete and accurate statement indicating
the number, description and whereabouts of all units of
such Distributed Products in Distributor's inventory as of
the date of such expiration of the applicable Exploitation
Period; and
(iv) After the expiration of the above
referenced sell-off period, Distributor shall return to
GameTek all materials furnished to Distributor by GameTek
hereunder with respect to the affected Game Titles or, at
GameTek's election, give evidence satisfactory to GameTek
of their destruction.
9.5 Notwithstanding any contrary provision
contained herein but subject to Distributor's exclusive
rights with respect to Distributed Products in the
Territory during the Basic Term, each of the parties
acknowledges and agrees that during the term of this
Agreement and thereafter each party shall be free to
market, sell, distribute, license or sublicense or
otherwise deal in or exploit any software titles, whether
for use on personal computers or game console systems,
including titles that may be competitive with the Game
Titles, without any liability or obligation to the other
party by reason thereof.
10. NOTICES:
All notices, statements and/or payments to be
given to the parties hereunder shall be addressed to the
parties at the addresses set forth on the first page
hereof or at such other address as the parties shall
designate in writing from time to time. All notices shall
be in writing and shall either be served by personal
delivery (to an officer of each company), mail, or
facsimile (if confirmed by mail or personal delivery of
the hard copy), all charges prepaid. Except as otherwise
provided herein, such notices shall be deemed given when
personally delivered, all charges prepaid, or on the date
five (5) days following the date of mailing, except that
notices of change of address shall be effective only after
the actual receipt thereof. Copies of all notices to
Distributor should be sent to Distributor, Attention:
Office of the President, with a copy to Tenzer Greenblatt,
LLP, 405 Lexington Avenue, New York, New York 10174-0208,
Attention: Barry S. Rutcofsky, Esq. Copies of all
notices to GameTek should be sent to GameTek, Attention:
Office of the President, and to Ackerman, Levine & Cullen,
LLP, 175 Great Neck Road, Great Neck, New York 11021,
Attention: Leslie J. Levine, Esq.
11. MISCELLANEOUS:
11.1 Distributor shall have the right, at its
election, to assign any of its rights or obligations
hereunder, in whole or in part, to any subsidiary,
affiliated, or related company, or to any person, firm or
corporation owning or acquiring all or substantially all
of Distributor's stock or assets, provided that any such
assignment by Distributor shall not relieve Distributor of
its obligations hereunder, and provided further, that the
assignee shall acknowledge to GameTek in writing that such
assignment is subject to, and the assignee agrees to be
bound by, the terms and conditions of this Agreement.
11.2 The entire understanding between the
parties hereto relating to the subject matter hereof is
contained herein. There are no representations,
warranties, terms, conditions, undertakings or collateral
agreements, express or implied, between the parties other
than as expressly set forth in this Agreement. This
Agreement cannot be changed, modified, amended or
terminated except by an instrument in writing executed by
both Distributor and GameTek. The Schedules annexed
hereto constitute a part of this agreement. The headings
and captions used herein are inserted for convenience of
reference only and shall not affect the construction or
interpretation of this Agreement. This Agreement shall
not be deemed effective, final or binding upon Distributor
or GameTek until signed by each of them. Only the final,
executed Agreement is admissible as the written agreement
between the parties and prior drafts, if any,
incorporating revisions or original language may not be
used, and shall not be admissible as evidence for any
purpose in any litigation that may arise between the
parties. This Agreement shall be deemed to have been
drafted by all the parties hereto, since all parties were
assisted by their counsel in reviewing and agreeing
thereto, and no ambiguity shall be resolved against any
party by virtue of its participation in the drafting of
this Agreement.
11.3 No waiver, modification or cancellation of
any term or condition of this Agreement shall be effective
unless executed in writing by the party charged therewith.
No written waiver shall excuse the performance of any act
other than those specifically referred to therein and
shall not be deemed or construed to be a waiver of such
terms or conditions for the future or any subsequent
breach thereof. Except as otherwise provided in this
Agreement, all rights and remedies herein or otherwise
shall be cumulative and none of them shall be in
limitation of any other right or remedy.
11.4 This Agreement does not constitute and
shall not be construed as constituting a partnership,
joint venture, sublicense or agency relationship between
Distributor and GameTek. Neither Distributor nor GameTek
shall have any right to obligate or bind the other in any
manner whatsoever, and nothing herein contained shall give
or is intended to give any rights of any kind to any third
persons.
11.5 Any claim, dispute or disagreement between
the parties arising out of or relating to this Agreement
or the transactions or relationships contemplated hereby
shall be resolved by arbitration under the Commercial
Arbitration Rules of the American Arbitration Association,
as in effect from time to time before a single arbitrator
in New York County, New York. The decision of the
arbitrator shall be in writing, shall include an award of
reasonable attorneys' fees to the prevailing party, and
either party may enter judgment thereon in any court of
competent jurisdiction. Notwithstanding the foregoing, in
the event of any breach or threatened breach by either
party of the provisions of this Agreement, the aggrieved
party may seek and obtain a temporary restraining order,
preliminary injunction or other equitable relief
restraining such breach or threatened breach from any
court of competent jurisdiction.
11.6 This Agreement shall be governed by the
laws of the State of New York applicable to contracts
made to be wholly performed in the State of New York
(without regard to choice of law). Subject to the
provisions of Section 11.5 hereof, any action, suit or
proceeding may be brought in any of the courts of the
State of New York , in New York County, or any of the
federal courts within the Southern District of New York.
Each of the parties hereto irrevocably submits to the
personal jurisdiction of such courts in connection with
any such action, suit or proceeding. In any action, suit
or proceeding arising out of or relating to this Agreement
or the transactions or relationships contemplated hereby
(including any arbitration proceeding) the prevailing
party will be entitled to recover court costs and
reasonable fees of attorneys, accountants and expert
witnesses incurred by such a party in connection with such
action. Any process in any action or proceeding commenced
in such courts may, among other methods, be served upon
GameTek or Distributor, as applicable, by delivering or
mailing the same, via registered or certified mail, return
receipt requested, addressed to GameTek or Distributor, as
applicable, at the addresses set forth in the first page
hereof or such other address as the parties, as
applicable, may designate pursuant to Section 10 hereof.
Any such service by delivery or mail shall be deemed to
have the same force and effect as personal service within
the State of New York.
11.7 Except as may otherwise be provided herein,
neither party shall be deemed to be in breach of any of
its obligations hereunder unless and until it shall have
been given specific written notice by certified or
registered mail, return receipt requested, of the nature
of such breach and it shall have failed to cure such
breach within thirty (30) days (five days in the case of a
payment default) after receipt of such written notice.
11.8 If any provision of this Agreement is or
becomes or is deemed invalid, illegal or unenforceable
under the applicable laws or regulations of any
jurisdiction, such provision will be deemed amended to
conform to such laws or regulations if such amendment can
be effected without materially altering the intention of
the parties; otherwise it shall be stricken and the
remainder of this Agreement shall remain in full force and
effect.
11.9 Wherever the approval or consent of a party
is required hereunder, such approval or consent shall be
in writing and shall not be unreasonably withheld or
delayed.
12. CONFIDENTIAL INFORMATION; NON-SOLICITATION
12.1 Each party hereto shall keep in confidence
and not disclose to any third party, without the written
permission of the other party, the proprietary information
of such other party disclosed under or pursuant to this
Agreement. This requirement of confidentiality shall not
apply to information that is (a) in the public domain
through no wrongful act of the receiving party; (b)
rightfully received by the receiving party from a third
party who is not bound by a restriction of nondisclosure;
(c) already in the receiving party's possession without
restriction as to disclosure; or (d) required to be
disclosed by applicable rules and regulations of
government agencies or judicial bodies. This obligation
of confidentiality shall survive termination of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have
signed this agreement as of the day and year first above
written.
TAKE TWO INTERACTIVE
SOFTWARE, INC.
By: /s/ Ryan A. Brant
--------------------------
Its: Chief Executive Officer
--------------------------
Date: July 29, 1997
-------------------------
GAMETEK, INC.
By: /s/ Robert L. Underwood
-------------------------
Its: Authorized Signer
------------------------
Date: July 29, 1997
-----------------------
[Signature page to GameTek/Take Two Gameboy Distribution
Agreement]
SCHEDULE "A"
TO
GAMEBOY DISTRIBUTION AGREEMENT
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