EXHIBIT 10.47
SECOND AMENDMENT TO LICENSE AGREEMENT
BETWEEN TSR, INC AND INTERPLAY PRODUCTIONS
This Second Amendment To License Agreement is made effective this 8th day
of March, 1998, by and between Interplay Entertainment Corp., as successor in
interest to and doing business as, Interplay Productions, 16815 Von Karman
Avenue, Irvine, California, a Delaware corporation ("Licensee") and TSR, Inc.,
1801 Lind Avenue SW, Renton, Washington, a Wisconsin corporation ("Licensor").
WHEREAS, Licensor and Licensee entered into a certain License Agreement
date as August 8, 1994 as amended (the "License Agreement"); and
WHEREAS, Licensor and Licensee mutually wish to further amend the License
Agreement as provided below;
NOW THEREFORE, in exchange for mutual covenants set forth herein and other
good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. The License Agreement is hereby amended by inserting a new Schedule E:
SCHEDULE E:
ADVANCES:
[*] due upon execution, which has been paid.
For each game title initially released for play on on-line, cable,
satellite, or other electronic transmission systems ("Electronic Product"),
[*] upon such initial release and [*] upon any subsequent release of said
game title other than as an Electronic Product.
For each game title initially released other than as an Electronic Product,
[*] upon such initial release.
If LICENSEE has not paid TSR at least [*] in additional advances (over and
above the advance due upon execution) [*] after the date of commencement,
the difference between the amount of additional advances paid by LICENSEE
and [*].
[*] due as follows upon notification LICENSEE that it will exercise the 1st
OPTION TERM:
[*];
[*];
[*].
[*] due upon notification by LICENSEE that it will exercise the 2nd OPTION
TERM.
[*] due upon notification by LICENSEE that it will exercise the 3RD OPTION
TERM.
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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") pursuant to
Rule 24b-2 of the Securities Exchange Act of 1934, as amended, and have been
filed separately with the SEC.
[*] per clue book title due upon initial shipment of that title.
2. The License Agreement is hereby amended by inserting a new Schedule F:
SCHEDULE F:
MINIMUM GUARANTEE:
[*] for the ORIGINAL TERM.
The actual royalty earned and received by TSR during the entire first
calendar quarter of 1999 shall be applied toward the MINIMUM GUARANTEE
for the ORIGINAL TERM.
[*] for the 1ST OPTION TERM.
Only the actual royalty earned and received by TSR during the 1ST
OPTION TERM minus the royalty amount from the commencement of the 1ST
OPTION TERM to the end of first calendar quarter of 1999 shall be
applied toward the MINIMUM GUARANTEE for the 1ST OPTION TERM.
For the 2ND OPTION TERM, the MINIMUM GUARANTEE shall be based upon
LICENSEE's election of the LICENSED PROPERTY and shall be as follows:
[*] for the BALDUR' S GATE game(s); [*] for the NEVERWINTER NIGHTS
game(s); and [*] for the TORMENT game(s).
For the 3RD OPTION TERM, the MINIMUM GUARANTEE shall be based upon
LICENSEE's election of the LICENSED PROPERTY and shall be as follows:
[*] for the BALDUR'S GATE game(s); [*] for the NEVERWINTER NIGHTS
game(s); and [*] for the TORMENT game(s).
3. The License Agreement is hereby amended by inserting a new Schedule A:
SCHEDULE A:
LICENSED PROPERTY:
For the ORIGINAL TERM, LICENSED PROPERTY shall mean the following:
An exclusive license to use the PLANESCAPE and FORGOTTEN REALMS
trademarks and all copyrighted materials, including but not limited
to, characters, locations and monsters, that are unique to TSR's
PLANESCAPE and FORGOTTEN REALMS fantasy worlds.
A non-exclusive license to use, solely in connection with LICENSED
PRODUCTS bearing the PLANESCAPE or FORGOTTEN REALMS trademarks, the
trademarks and copyrighted materials associated with, but not unique
to, the PLANESCAPE and
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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") pursuant to
Rule 24b-2 of the Securities Exchange Act of 1934, as amended, and have been
filed separately with the SEC.
FORGOTTEN REALMS fantasy worlds, including without limitation, the
ADVANCED DUNGEONS & DRAGONS, AD&D, TSR, and TSR Logo trademark.
An exclusive sublicense to use any computer code for the presently
existing NEVERWINTER NIGHTS game the copyright for which is owned by
Strategic Simulations, Inc. only for so long as the existing
NEVERWINTER NIGHTS game continues to be made available on the America
Online network and only for the purpose of continuing the existing
NEVERWINTER NIGHTS game. This license specifically excludes any other
use of said computer code and in particular any use of the computer
code in any modifications of or sequels to the existing NEVERWINTER
NIGHTS game.
This license also specifically excludes any computer code owned by any
other party, including without limitation America Online, Inc.
For 1ST 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; TORMENT as the title of a
retail PC and/or home video game product and sequels; and NEVERWINTER
NIGHTS as the title of a retail PC and/or home video game product,
with subtitle to be mutually agreed upon.
A non-exclusive license to use, solely in connection with LICENSED
PRODUCTS bearing the BALDUR'S GATE, TORMENT, or NEVERWINTER NIGHTS
trademarks, 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, and TSR Logo trademark; provided, however, that Licensee's rights
shall be exclusive with respect to computer software games primarily
located in the Baldur's Gate and Neverwinter areas 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 or
Neverw inter areas. 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 or Neverwinter areas.
For 2ND OPTION TERM and 3RD OPTION TERM, the term LICENSED PROPERTY shall
mean the following:
Upon written notification to TSR as set forth in Advances and Terms,
the choice of an exclusive license to use BALDUR'S GATE as the title
of a retail PC and/or home video game product and sequels; TORMENT as
the title of a retail PC and/or home video game product and sequels;
or NEVERWINTER NIGHTS as the title of a retail PC and/or home video
game product with subtitle to be mutually agreed upon. All rights to
the titles not selected by LICENSEE shall expire at the end of the
applicable Term and revert to TSR.
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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") pursuant to
Rule 24b-2 of the Securities Exchange Act of 1934, as amended, and have been
filed separately with the SEC.
Consistent with the titles selected, a non-exclusive license to use,
solely in connection with LICENSED PRODUCTS bearing the HALDUR'S GATE,
TORMENT, or NEVERWINTER NIGHTS trademarks, 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, and TSR Logo
trademark; provided, however, that Licensee's rights shall be
exclusive with respect to computer software games primarily located in
the Baldur's Gate and Neverwinter areas 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 or Neverwinter
areas. 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
or Neverwinter areas.
4. The License Agreement is hereby amended by inserting a new Schedule B:
SCHEDULE B:
LICENSED PRODUCTS:
Computer and video fantasy role-playing games for all personal computer and
video game platforms known or unknown, including without limitation,
coin-operated, cable, on-line, satellite and other electronic transmission
Systems.
For 1ST OPTION TERM, 2ND OPTION TERM, and 3RD OPTION TERM, the term
LICENSED PRODUCTS shall be mean the following:
Retail PC and/or home video game products which may include the
ability for the consumer to utilize the retail game product to play
the game via modem and over a local area network and shall include the
right of Licensee to use, execute, transmit, perform and display the
Licensed Product via an online network to enable users to play the
Licensed Product free of charge (e.g. a "Battle.net" type network).
Clue book and "900" telephone numbers containing hints, clues, diagrams,
maps or other material to assist players for said computer and video games.
Nothing in this Agreement will prevent TSR from flilly exploiting in any
other manner its rights in the LICENSED PROPERTY.
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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") pursuant to
Rule 24b-2 of the Securities Exchange Act of 1934, as amended, and have been
filed separately with the SEC.
5. The License Agreement is hereby amended by inserting a new Schedule D:
SCHEDULE D:
TERMS:
Commencing upon the date of the last party to sign the AGREEMENT; expiring
four (4) years and six (6) months from the date of commencement. (The file
period from commencement to such expiration is called the "ORIGINAL TERM").
LICENSEE, at its option, and provided that LICENSEE is in compliance, and
continues to comply with the AGREEMENT, may extend the term for three (3)
additional two (2) year periods (the "1 ST OPTION TERM", "2ND OPTION TERM,"
and "3RD OPTION TERM," respectively) upon written notice and payment of
required Advance to TSR at least one (1) year prior to the expiration of:
(1) the ORIGINAL TERM to accept the 1ST OPTION TERM; (2) the 1ST OPTION
TERM to accept the 2ND OPTION TERM; and (3) the 2ND OPTION TERM to accept
the 3RD OPTION TERM. Notwithstanding the foregoing, LICENSOR acknowledges
that LICENSEE has provided timely notice to accept the 1ST OPTION TERM and
shall make payment as set forth in Section 1 herein.
Notwithstanding anything contained herein to the contrary, LICENSEE's
rights to manufacture, distribute, promote, and sell each LICENSED PRODUCT
released during the ORIGINAL TERM or any OEON TERM (if applicable) shall
extend beyond the ORIGINAL TERM or any OPTION TERM (if applicable) for the
Active Life of the LICENSED PRODUCT. "Active Life" shall mean the longer
of: (i) two (2) years from the first commercial release of the LICENSED
PRODUCT, or (ii) until such time as LICENSEE has failed to pay at least [*]
in Royalties of the LICENSED PRODUCT in the previous calendar year but in
no event shall the Active Life extend any right to manufacture, distribute,
promote, or sell any new version or improvement to any LICENSED PRODUCT nor
shall the Active Life extend the time to manufacture, distribute, promote,
or sell any LICENSED PRODUCT beyond February 8, 2007. For purposes of the
definition of the term Active Life, Royalties of the LICENSED PRODUCT shall
only be considered paid if LICENSEE receives and reports as part of Net
Sales an amount not less than [*] per stand alone unit; provided, however,
LICENSED PRODUCT Royalties may be derived from other unit sales of LICENSED
PRODUCT only if LICENSEE provides LICENSOR with a written request and
details of such a sales program (e.g. OEM or compilations) and receives
written approval from LICENSOR for the sales program.
6. The License Agreement is hereby amended by adding to EXHIBIT H
(ROYALTIES):
Advertising derived from on-line play of LICENSED PRODUCT[*]
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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") pursuant to
Rule 24b-2 of the Securities Exchange Act of 1934, as amended, and have been
filed separately with the SEC.
IN WITNESS WHEREOF, the parties have executed this Second Amendment To
License Agreement by their duly authorized officers as of the date first set
forth above. Upon expiration of the Agreement, the parties will negotiate
additional renewal terms in good faith.
LICENSOR: LICENSEE:
TSR, INC. INTERPLAY ENTERTAINMENT CORP.
By: /Emily Arons/ By: /Christopher Kilpatrick/
Emily Arons Name: Christopher Kilpatrick
V.P. Consumer Products Title: 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") pursuant to
Rule 24b-2 of the Securities Exchange Act of 1934, as amended, and have been
filed separately with the SEC.