EXHIBIT 10.2
FOURTH AMENDMENT TO COMPUTER LICENSE AGREEMENT
This Fourth Amendment to Computer License Agreement ("FOURTH AMENDMENT") is
entered into as of January 23, 2002 by Interplay Entertainment Corp., a Delaware
corporation, as successor in interest to Interplay Productions, Inc.
("LICENSEE"), and Infogrames Interactive, Inc. a Delaware corporation, as
successor in interest to TSR, Inc. ("LICENSOR"), and collectively the "PARTIES".
RECITALS
A. Licensor and Licensee entered into that certain Computer Game License
Agreement dated as of August 8, 1994 as amended (the "ORIGINAL AGREEMENT") for
the purpose of licensing certain intellectual property to Licensee and the
development of interactive entertainment software related to such licensed
rights.
B. The Original Agreement has been amended on or as of August 1, 1996 (the
"FIRST AMENDMENT"), March 8, 1998 (the "SECOND AMENDMENT") and July 25, 2001
(the "THIRD AMENDMENT").
C. The Original Agreement, as amended by the First, Second and Third
Amendments, is hereinafter referred to as the "AGREEMENT".
D. A dispute has arisen with respect to among other things, the
interpretation of Licensed Property pursuant to the 2nd and 3rd Option Terms in
the Second Amendment and Licensee's compliance with the Agreement.
E. Through this Fourth Amendment, the Parties desire and intend clarify the
Agreement and to grant the limited rights specified herein.
Accordingly, in consideration of the promises and mutual covenants
contained herein, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Licensee and Licensor, intending
to be legally bound, have agreed and do hereby agree as follows:
1. INCORPORATION. This Fourth Amendment is incorporated into and amends
the Agreement by this reference.
2. TERMINATION OF "HEADS OF AGREEMENT". Concurrent with the execution of
this Fourth Amendment the parties agree that the July 25, 2001 "Heads
of Agreement", for the distribution by Infogrames, Inc. ("INFOGRAMES,
INC.") of the interactive entertainment software currently known as
"Neverwinter Nights" is hereby mutually terminated. Neither Licensor
(and/or Infogrames, Inc.), on the one hand, nor Licensee, on the other
hand, shall incur any liability in connection with the termination of
the Heads of Agreement, and each party represents and warrants that
the other party shall not be subject to any further obligations
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confidential terms have been omitted pursuant to a Confidential Treatment
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filed separately with the SEC.
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(monetary or otherwise) to the other in connection with the Heads of
Agreement. For purposes of clarification, all advances and other
monies paid to date by LICENSOR to LICENSEE pursuant to the Heads of
Agreement shall be deemed non-refundable.
3. LICENSED PROPERTY DEFINED. The definition of LICENSED PROPERTY shall
be as follows:
For 2ND OPTION TERM and 3RD OPTION TERM, the term LICENSED PROPERTY
shall mean the following:
An exclusive license to use BALDUR'S GATE as the title of a retail PC
and/or home video game product and sequels.
A non-exclusive license to use, solely in connection with LICENSED
PRODUCTS bearing the BALDUR'S GATE trademark, the trademarks and
copyrighted materials associated with, but not unique to, the
PLANESCAPE and FORGOTTEN REALMS fantasy worlds, including without
limitation, the ADVANCED DUNGEONS & DRAGONS, AD&D, TSR, TSR Logo,
INFOGRAMES INTERATIVE, INC., and Infogrames Logo trademark; provided,
however, that Licensee's rights shall be exclusive with respect to
computer software games primarily located in the Baldur's Gate area of
the Forgotten Realms world. For purposes of clarification, Licensor
may develop, manufacture, distribute, promote, license, and sell (and
authorize any third party to do so) computer software games based in
the Forgotten Realms world allowing players to venture into the
Baldur's Gate area. Licensor shall not develop, manufacture,
distribute, promote, license, or sell (nor authorize any third party
to do so) any computer software game primarily located, based or
focused in the Baldur's Gate area.
4. TORMENT. Notwithstanding the foregoing, Licensee shall have six months
from the date of this Fourth Amendment to sell off any existing
inventory of TORMENT products, and all currently existing contracts
covering the exploitation of Torment products shall be entitled to run
until the end of their respective terms, but in no event shall any
such terms run past December 31, 2002 (except with respect to the
Universal Distribution Agreement, as described in Paragraph 8 below,
which shall not run beyond December 31, 2003 with respect to TORMENT
products; provided, however, that in the event Universal/Vivendi
ceases distribution of TORMENT products prior to December 31, 2003,
then Interplay's rights thereto shall concurrently terminate).
5. ICEWIND DALE, BALDUR'S GATE DARK ALLIANCE AND NEVERWINTER NIGHTS.
For the purposes of clarity and notwithstanding anything to the
contrary contained in the Agreement, including this Fourth Amendment,
LICENSEE shall have the exclusive right to exploit (i) its previously
released "Icewind Dale" PC product and expansion entitled "Icewind
Dale - Heart of Winter", (ii) the
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*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
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"Icewind Dale 2" PC product currently in development, (iii) "Icewind
Dale 3" as a PC product, and (iv) add-on and expansion packs thereto.
Further for the purposes of clarity, LICENSEE shall maintain, as part
of rights included in the Licensed Property, the exclusive rights to
Baldur's Gate Dark Alliance ("BGDA") products during the Term of, and
pursuant to the terms and conditions of, the Agreement, including,
without limitation, the recently released BGDA video game for the Sony
PlayStation 2 platform.
Further for the purposes of clarity and notwithstanding anything to
the contrary contained in the Agreement, including this Fourth
Amendment, LICENSEE shall maintain, pursuant to the terms of the
Agreement, the exclusive rights to the NEVERWINTER NIGHTS PC product
being developed for LICENOR pursuant to the NWN Agreement described in
Paragraph 10 below (the "NWN PC PRODUCT"), in connection with the
following agreements only:
i. That certain License Agreement dated October 5, 2001, by and
between Interplay Licensing & Merchandising, a division of
Interplay OEM, Inc. ("INTERPLAY OEM") and Empire 21
Publishing, Inc., a California corporation dba Versus Books
("EMPIRE"), pursuant to the terms of which Empire has the
exclusive, worldwide right and license to develop, publish,
produce, market and distribute a Game Guide (as defined in
the agreement) for the NWN PC Product (the "BOOK
AGREEMENT"); and
ii. That certain Electronic Distribution Agreement ("STREAMING
AGREEMENT") dated as of November 2001, by and between
GamesOnline.com,Inc., a Delaware corporation d.b.a.
Interplay.com ("GAMESONLINE"), and Knight Bridging Korea
Co., Ltd., a company organized in the Republic of Korea
("KBK"), pursuant to the terms of which KBK has the right to
create a Korean-localized version of the NWN PC Product and
the exclusive right and license to display, operate, engage
and sell only the Korean-localized version of the NWN PC
Product over the World Wide Web in the form of (i)
electronic broadband transmissions commonly known in the
interactive software industry as "streaming", and/or (ii)
downloadable versions. In connection with the Streaming
Agreement, Licensor shall, as soon as reasonably
practicable, supply Licensee with a version of the NWN PC
Product (and any code and other assets which may be
necessary, and as are provided to LICENSOR from the BioWare
Corporation (the "NWN ASSETS")) for use by KBK in localizing
such product pursuant to the terms and conditions of the
Streaming Agreement. Licensor will use its commercially
reasonable best efforts to obtain the NWN Assets from
BioWare.
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*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
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In connection with amounts that would have been paid directly to
BioWare by LICENSEE from the Streaming Agreement and the Book
Agreement had the Amendment Number Four to and assignment of the NWN
Agreement (as defined in Paragraph 10 below) not been entered into,
LICENSEE shall supply LICENSOR with accurate, detailed statements and
corresponding amounts that would have been due to BioWare from
LICENSEE pursuant to the NWN Agreement prior to the Amendment Number
Four thereto and assignment thereof. All such statements and payments
shall be provided to LICENSOR at least ten business days prior to when
such statements and payments would have been due to BioWare from
LICENSEE pursuant to the NWN Agreement prior to the Amendment Number
Four thereto and assignment thereof, as if LICENSEE had not assigned
such NWN Agreement to LICENSOR and was rendering statements and paying
BioWare directly.
The following language at the end of Section 3.2 of the Third
Amendment is hereby deleted in its entirety:
"and (2) NEVERWINTER NIGHTS as the title of one retail PC product. For
clarity, such rights shall not include the rights to add-ons,
expansion packs, derivatives (including sequels) and conversions."
6. TERM. The current Term of the Agreement (the Second Option Term) shall
be extended one year, until February 8, 2004 and the Third Option Term
(if such option is exercised pursuant to the terms of the Agreement)
shall begin on February 8, 2004 and expire on February 8, 2006.
7. CUMULATIVE BREACHES. The last sentence of Paragraph 27 of the
Agreement is deleted and replaced with the following: "Notwithstanding
the foregoing, if LICENSEE breaches the approval provisions (Paragraph
6) or payment of royalties provision (Paragraph 12) of this Agreement
* * * or more times during any * * * year period, regardless of
whether the breaches have been cured or waived, LICENSOR may give
LICENSEE written warning and, if LICENSEE breaches such provisions
again during the * * * year period, LICENSOR may terminate this
Agreement immediately by written notice to LICENSEE. As of the date of
this Fourth Amendment, LICENSEE shall be deemed to have zero (0) such
breaches."
8. UNIVERSAL DISTRIBUTION AGREEMENT. LICENSEE acknowledges and agrees
that prior to entering into that certain Distribution Agreement dated
August 23, 2001, as amended (collectively, the "UNIVERSAL DISTRIBUTION
AGREEMENT"), and with the exception of distribution of the LICENSED
PRODUCTS in certain territories by Virgin Interactive on LICENSEE's
behalf, LICENSEE substantially distributed the Licensed Products
itself and paid Royalties to LICENSOR pursuant to the terms and
conditions of this TSR Agreement, including Net Sales as defined in
Section 11 of this TSR Agreement. * * * LICENSEE shall pay * * * in
connection with the distribution of the Licensed Products.
Accordingly, LICENSEE shall use its best efforts * * * . In the event
* * *, LICENSEE shall pay LICENSOR * * *.
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*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
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9. AUDIT RIGHTS. LICENSEE shall use its commercially reasonable efforts
* * * ; provided, however, that Interplay's inability to obtain
any/all such agreements shall not be deemed a breach of this Fourth
Amendment.
10. AMENDMENT AND ASSIGNMENT OF NWN DEVELOPMENT AGREEMENT. Concurrently
with the execution of this Fourth Amendment, LICENSEE, LICENSOR and
BIOWARE CORP. shall execute an AMENDMENT NUMBER FOUR (in the form
attached hereto as EXHIBIT 1) to that certain PRODUCT AGREEMENT dated
as of August 26, 1999, as amended (collectively, the "NWN AGREEMENT"),
currently existing between LICENSEE and BIOWARE CORP. respecting the
development of a computer game referred to in the NWN Agreement as
"Neverwinter Nights 2" and currently referred to as "Neverwinter
Nights". As partial consideration for entering into such amendment,
* * * shall be deemed to have been paid by LICENSEE to LICENSOR from
Royalties currently owed to LICENSOR by LICENSEE pursuant to the
Agreement (the "PAYMENT"). The Payment consists of interest due to
LICENSOR on the Q4 2000 Royalty payment, as well as Royalty payments
for Q1,2 and 3 of 2001, plus interest thereon.
11. MUTUAL RELEASE. With the exception of LICENSOR's right to assert
claims for underpayment of Royalties resulting from any audit and as
set forth in the last two sentences of this Section 11, both LICENSEE
and LICENSOR release each other from any and all claims and
liabilities directly relating to the Agreement that are known by the
releasing party as of the date of this Fourth Amendment.
Notwithstanding anything to the contrary herein, in no event shall any
claims asserted by LICENSOR against LICENSEE for (i) underpayment of
Royalties resulting from any such audit covering reporting periods
prior to the date of the Fourth Amendment and/or (ii) failure, prior
to the date of the Fourth Amendment, to obtain approvals pursuant to
Paragraph 6 of the Agreement, be deemed a breach of Interplay's
Royalty payment obligations and/or approval obligations for purposes
of the last sentence of Paragraph 27 of the Agreement (as such
provision is amended by Paragraph 7 of this Fourth Amendment);
provided, however, that in no event shall LICENSOR be deemed to have
waived its approval rights under Paragraph 6 of the Agreement.
Notwithstanding anything to the contrary set forth herein, LICENSEE
shall indemnify, defend and hold harmless LICENSOR, Infogrames, Inc.,
their parent entity, affiliates, licensees, officers, directors,
employees, successors and assigns from any and all claims, demands,
actions, losses, liabilities, costs, expenses, and/or damages of any
kind or nature (including but not limited to reasonable attorneys
fees) arising out of any action brought by * * * (or its designee)
and/or * * * (or its designee) in connection with any claim relating
to the NWN PC Product as it relates to the * * *. Any such causes of
action are expressly excluded from the release set forth above.
12. GOVERNING LAW. In Paragraph 43 of the Agreement, all references to the
"State of Wisconsin" shall be deleted and replaced with the "State of
New York".
13. JURISDICTION AND VENUE. Paragraph 44 of the Agreement is hereby
deleted in its entirety and replaced with the following:
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*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
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"In the event Licensee brings any action against Licensor relating to
this Agreement, the venue for any such judicial proceeding shall be
exclusively in the state and federal courts located in the County of
New York, New York (Manhattan). Licensee hereby submits to the
exclusive jurisdiction and venue of such courts in connection with any
such action and waives any and all objections to venue and
jurisdiction of such courts, and agrees it shall not plead that venue
is improper or inconvenient in such courts in connection with any
action it brings relating to this Agreement. In the event Licensor
brings any action against Licensee relating to this Agreement, the
venue for any such judicial proceeding shall be exclusively in the
state or federal courts located in Orange County, California. Licensor
hereby submits to the exclusive jurisdiction and venue of such courts
in connection with any such action and waives any and all objections
to the venue and jurisdiction of such courts, and agrees that it shall
not plead that venue is improper or inconvenient in such courts in
connection with any action Licensor brings relating to this
Agreement."
14. MISCELLANEOUS. Except as set forth above, the Agreement as hereby
amended shall remain in full force and effect without amendment or
modification of any kind. Unless otherwise defined, all capitalized
terms shall have the meanings ascribed to them in the Agreement. The
headings used in this Fourth Amendment are inserted for reference
purposes only and do not affect the interpretation of the terms and
conditions hereof. This Fourth Amendment may be signed in counterparts
and by facsimile, and each counterpart shall be deemed an original.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
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*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
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In witness whereof, the parties have executed this Fourth Amendment as of
the date first above written.
"LICENSEE" "LICENSOR"
Interplay Entertainment Corp. Infogrames Interactive, Inc.
By: /S/ HERVE CAEN By: /S/ HARRY RUBIN
------------------------- -------------------------------
Herve Caen Harry Rubin
President Senior Executive Vice President
Infogrames, Inc.
By: /S/ HARRY RUBIN
-------------------------------
Harry Rubin
Senior Executive Vice President
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*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
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Exhibit 1
Amendment Number Four to Product Agreement
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*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
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