EXHIBIT 10.3
August 29, 2002
Interplay Entertainment Corp.
16815 Von Karman Avenue
Irvine, CA 92606
Attention: Chief Executive Officer
Attention: Legal Department
Re: Letter Agreement and Amendment to Distribution Agreement dated
August 23, 2001 and Video Game Distribution Agreement dated
August 9, 2002.
Dear Sir or Madam:
This letter will serve as the second amendment ("Amendment #2") to confirm
the agreements we have reached in connection with the Video Game Distribution
Agreement dated August 9, 2002, between Vivendi Universal Games, Inc. ("VUG")
and Interplay Entertainment Corp. ("Interplay"), as amended by that Letter of
Intent dated August 9, 2002 (the "LOI") (collectively, the "New Distribution
Agreement"), and as an amendment to the Distribution Agreement dated August 23,
2001, as amended, between VUG and Interplay (the "Old Distribution Agreement").
The provisions contained herein shall serve to amend the New Distribution
Agreement and the Old Distribution Agreement only as stated herein, and all
other terms and conditions contained in the those agreements shall remain in
full force and effect. All capitalized terms used herein and not otherwise
defined shall have the meaning ascribed to them in the New Distribution
Agreement.
1. REMOVAL OF ICEWIND DALE 2 (PC) FROM THE OLD DISTRIBUTION AGREEMENT AND
ADDITION OF SUCH TITLE TO THE NEW DISTRIBUTION AGREEMENT.
i. Section 3 of Exhibit B to the New Distribution Agreement shall be
modified by adding the following Partner Product and related
information to the New Distribution Agreement:
Submission Date(s) Approved Gold
TITLE Platform: for delivery of Master Delivery
the Gold Candidate: Date:
- ------------------- ------------------- ------------------- --------------------
IceWind Dale 2 PC August 28, 2002 August 28, 2002
- ------------------- ------------------- ------------------- --------------------
ii. Accordingly, the Old Distribution Agreement is hereby amended to
delete IceWind Dale 2 (PC) therefrom.
iii. VUG acknowledges that, as of the date of this Amendment #2, Interplay
has delivered to VUG the Approved Gold Master of IceWind Dale 2.
*** 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.
iv. As both Run Like Hell (PS2) (pursuant to the LOI) and IceWind Dale 2
(PC version) (pursuant to this Amendment #2) have been moved to the
New Distribution Agreement from the Old Distribution Agreement, and as
the Old Distribution Agreement entitled VUG to charge Interplay for
certain marketing and advertising expenses incurred by VUG in
connection with such products, and because the New Distribution
Agreement does not permit VUG to charge Interplay for such costs, VUG
hereby agrees to credit Interplay, in the August royalty statement due
from VUG under the Old Distribution Agreement, for the amount of
any/all such marketing and advertising expenses previously charged to
Interplay by VUG in connection with Run Like Hell (PS2) and IceWind
Dale 2 (PC version). For purposes of clarification, VUG acknowledges
that from and after the date of this Amendment #2, VUG shall not be
entitled to charge Interplay for any such Run Like Hell (PS2) and/or
IceWind Dale 2 (PC) marketing/advertising expenses previously
incurred/committed to by VUG but not previously charged to Interplay.
2. OFFSET RIGHTS. In addition to the modifications in the LOI to Section 20.14
of the Agreement, Section 20.14 shall further be modified to include the
following:
"Interplay expressly acknowledges and agrees that VUG shall be entitled to
offset the Interplay Proceeds against any amounts due from Interplay to VUG
pursuant to any other agreement between the parties hereto, including but
not limited to, the Old Distribution Agreement. Solely by way of
clarification, VUG acknowledges that such offset shall not be against any
Minimum Guarantee amounts payable to Interplay as provided in the New
Distribution Agreement, but shall be limited solely to any Interplay
Proceeds otherwise payable to Interplay following the recoupment of such
Minimum Guarantees. Notwithstanding anything to the contrary herein, at
such time as all "true-ups" pursuant to the Old Distribution Agreement have
been achieved and and Interplay has satisfied its payment obligations to
VUG under the Old Distribution Agreement, VUG shall promptly release its
security interest(s) in Interplay's property (which security interest was
granted to VUTG pursuant to Paragraph 3 of Amendment #2 of the Old
Distribution Agreement, dated November 20, 2001) and prepare, execute
and/or file all documents necessary to release any/all applicable financing
or continuation statements, copyright mortgages, trademark mortgages or
similar instruments or documents. By way of clarification, nothing
contained in the immediately preceding sentence shall be deemed to impair,
amend or otherwise alter any security interest(s) VUG may have obtained
pursuant to the New Distribution Agreement. "
3. MINIMUM GUARANTEE. Section 1.1(i) and Section 1.1(ii) of Exhibit A of the
Agreement shall be modified to include the following language at the
beginning of each such Section:
"except as otherwise stated in Section 4 of Exhibit B, hereto,"
The remainder of such Sections shall remain unchanged.
*** 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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4. PERCENT OF NET SALES PER PARTNER PRODUCT UNIT. The first sentence of
Section 2.1 of Exhibit A shall be modified to read as follows:
"Except as otherwise stated in Section 4 of Exhibit B hereto and subject to
VUG's right of recoupment of all Minimum Guarantees paid by VUG to
Interplay, as set forth in Section 1.3 of Exhibit A, VUG shall pay
Interplay the "Interplay Proceeds."
The remainder of such Section shall remain unchanged.
5. The following Section 4 of Exhibit B shall be inserted and shall read as
follows:
"IceWind Dale 2 Distribution Fee/Minimum Guarantee(s). Solely with respect
to the PC Platform version of IceWind Dale 2, VUG's Distribution Fee shall
be *** of Net Sales until ***. Effective ***, VUG's Distribution Fee shall
increase to ***of Net Sales. Notwithstanding the foregoing, in the event
that Interplay submits Gold Candidates for ***and ***to the appropriate
Game Hardware Platform Licensor for approval on or before ***, then
effective ***, VUG's Distribution Fee with respect to ***shall be***. VUG
shall pay Interplay *** of the Minimum Guarantee otherwise due to Interplay
(as provided in Section 1 of Exhibit A) with respect to IceWind Dale 2 (PC
version) within ***business days of the complete execution of this
Amendment #2 (but in no event later than Friday, August 30, 2002, 12:00
p.m., PST) and the remainder of such Minimum Guarantees within ***days of
commercial release of IceWind Dale 2 (PC version)."
If you agree to the provisions set forth in this letter agreement, please
so indicate by signing the enclosed copy and returning it to me via facsimile,
followed by an original copy in the mail. As stated herein, nothing contained in
this letter shall affect the terms and conditions stated in the Agreement,
except as specifically stated herein.
Sincerely yours,
/s/ Phil O'Neil
-----------------------------------
Phil O'Neil
President, Partner Publishing Group
Vivendi Universal Games, Inc.
I agree to the provisions of this letter agreement.
Dated: 8/29/02 /s/ Jeff Gonzalez
------------------------ ---------------------------
Name: Jeff Gonzalez
Title: CFO
*** 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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