EX1U-6 MAT CTRCT
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f1u093016ex6ii_figpublishing.htm
AMENDED AND RESTATED LICENSE AGREEMENT
Exhibit
6.2
PUBLISHING
LICENSE AGREEMENT
This
Publishing License Agreement (this "Agreement"), dated as of August 5, 2016 ("Effective Date"),
is entered into between Double Fine Productions, Inc., a California corporation ("Developer"), with
its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and Fig Publishing, Inc.,
a Delaware corporation ("Licensee"), with its principal place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Developer and Licensee may be referred to individually as a "Party" or "party"
and collectively as the "Parties" or "parties."
INTRODUCTION
WHEREAS
Developer and Fig Grasslands, LLC a corporate affiliate of Licensee, entered into that certain Video Game License Agreement
(the "Original Agreement") on December 3, 2015 (the "Original Effective Date"), which Original
Agreement superseded in its entirety that certain Video Game License Agreement (the "Predecessor Agreement") dated
September 23, 2015, entered into between Developer and a corporate affiliate of Licensee;
WHEREAS,
Developer is developing the Licensed Game;
WHEREAS,
Licensee is a publisher of video games;
WHEREAS,
Licensee wishes to license the Licensed Game from Developer, and Developer wishes to license the Licensed Game to Licensee,
to exploit the Licensed Game in accordance with the following terms and conditions;
WHEREAS,
the Original Agreement automatically terminated by its own terms on May 31, 2016, and the parties, on behalf of themselves
and, in the case of Licensee, on behalf of its corporate affiliates, do hereby acknowledge the termination and cancellation of
the Original Agreement and the Predecessor Agreement; and
WHEREAS,
the parties desire to enter into this Agreement as follows.
TERMS
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree
as follows:
| 1. | GRANT OF RIGHTS; DISTRIBUTORS; CO-PUBLISHERS |
| | 1.1. | Grant
of License to Licensed Game. Developer hereby grants to Licensee a non-exclusive, irrevocable, perpetual, worldwide, fully
paid up, sublicensable (across multiple tiers) right and license throughout the world to use, license, sublicense, sell, advertise,
promote, publicly perform, distribute, display, and otherwise utilize the Licensed Game for and in connection with publishing,
distributing, selling, licensing, advertising, marketing and promoting the Licensed Game to Distributors (defined below)
and consumers (the "Publishing License"). |
| | 1.1.1. | Licensed
Game. The "Licensed Game" means each version of the video game identified and described on Exhibit
A attached hereto for use with each of the Licensed Platforms (defined below), including updates and enhancements thereto,
but excluding DLC of such video game. "DLC" of a video game means downloadable additional content or expansions
for or to a video game which require the installation and license of such video game to be played by an end user. |
| | 1.1.2. | Licensed Platforms.
"Licensed Platforms" means any and all personal computer, mobile, tablet, video game console, interactive
television and any other operating system on which video games are played, whether now known or hereafter devised, including
but not limited to Microsoft Windows operating systems, Microsoft Xbox 360, Xbox One, Sony PlayStation 3, PlayStation 4, and
Vita, Nintendo Wii, Wii-U, DS and 3DS, Apple Macintosh, OS X and iOS operating systems, Google Android operating system, Linux
operating system, and all future versions of each of the foregoing; provided, however, Licensed Platforms does not include
any virtual reality, mixed reality, or augmented reality system, whether now known or hereafter devised, including but not
limited to Playstation VR, Oculus Rift and Valve/HTC Vive. |
| | 1.1.3. | Committed
Platforms. Developer has no obligation hereunder to develop the Licensed Game for the Licensed Platforms other than the
Committed Platforms. "Committed Platforms" means the Microsoft Windows operating system, the Linux operating
system and the Apple Macintosh operating system. |
| | 1.2. | Developer
Brand Features License. "Developer Brand Features" means the trademarks, trade names, service marks,
service names and logos proprietary to Developer in connection with or related to the Licensed Game. Developer hereby grants
to Licensee a non-exclusive, irrevocable, perpetual by Developer, fully paid up, sublicensable (across multiple tiers) right
and license to use, create Derivative Works (defined below) of, display and otherwise utilize the Developer Brand Features
and components of the Licensed Game (including, without limitation, pictorial, audio and audiovisual elements, characters,
screenshots and icons) in connection with the Licensed Game and the advertising, promotion, distribution, sales, licensing
and marketing thereof (the "Brand Features License" and collectively with the Publishing License, the "Video
Game License"). Licensee shall have the right to use in conjunction with the Licensed Game, domain names using Developer
Brand Features either alone or in combination with the trademarks, trade names, service marks, service names and logos proprietary
to Licensee (the "Licensee Brand Features"), subject to Developer's consent, which shall not be unreasonably
withheld. "Derivative Work" means a work that is derived from the Licensed Game such that the use thereof
would infringe upon the Intellectual Property Rights in the Licensed Game. "Intellectual Property Rights" means,
with respect to any item, any and all now known or hereafter known (i) rights associated with works of authorship throughout
the universe, including but not limited to copyrights and moral rights, (ii) trademark and trade name rights and similar rights,
(iii) trade secret rights, (iv) patents, designs, and other industrial property rights, (v) all other intellectual property
and industrial property rights, and (vi) all registrations, applications, renewals, extensions, continuations, divisions or
reissues thereof now or hereafter in force (including any rights in any of the foregoing). The Parties hereby agree that any
use of Developer Brand Features by either Party must comply with false advertising and similar laws. Licensee further agrees
that any use of the Developer Brand Features by Licensee must meet Developer's quality standards in effect from time to time.
|
| | 1.3. | Distribution
Agreements. |
| 1.3.1. | "Distribution Agreement"
means an agreement (other than this Agreement) between a Co-Publisher (defined below) and a counterparty whereby the counterparty
agrees to or is granted the right to distribute (whether physically or digitally), deliver, transmit, stream, resale or wholesale
the Licensed Game. "Distributor" means the distributing counterparty to a Distribution Agreement in its capacity
as such. |
| | 1.3.2. | Licensee will
obtain Developer's prior written approval of each Distribution Agreement that Licensee enters into with a Distributor, which
approval may be granted or withheld in Developer's sole discretion. The foregoing notwithstanding, Licensee may enter into
one or more Distribution Agreements with each of the Distributors, without Developer approval, listed on Exhibit B attached
hereto, as such exhibit amended from time to time by written agreement of Licensee and Developer. |
| | 1.3.3. | Developer may
enter into any Distribution with a Distributor in its discretion, provided that each such Distribution Agreement establishes
fair, just and equitable market rates and arms-length prices as determined by Developer in good faith. Developer agrees to
notify as soon as reasonably practicable Licensee by email or in writing when it enters into any Distribution
Agreement. |
| | 1.4.1. | "Co-Publisher" means
Developer, Licensee and any other party (a "Third-Party Co-Publisher") granted a license to exploit the
Licensed Game in consideration for funding the development, advertising, marketing or promotion of the Licensed Game or
otherwise designated as a "publisher of record" pursuant to a Distribution Agreement or Third-Party
Co-Publisher Agreement. |
| | 1.4.2. | Subject to
Section 1.3.3 and Section 1.4.3, Developer may appoint Co-Publishers and enter into Distribution Agreements and other
agreements with Co-Publishers in its discretion. |
| | 1.4.3. | Developer agrees
that any agreement between Developer and a Third-Party Co-Publisher that establishes or relates to the Co-Publisher's status
as such (a "Third-Party Co-Publisher Agreement") shall: |
| | (a) | establish fair, just and equitable market rates and
arms-length prices as determined by Developer in good faith; |
| (b) | shall
establish for the benefit of Developer commercially reasonable or customary rights to
audit the books and records of or to receive accounting statements from the Co-Publisher
related to the Third-Party Co-Publishing Agreement ("Developer Audit Rights").
When negotiating each Third-Party Co-Publisher Agreement, Developer shall make commercially
reasonable efforts to provide that the Developer Audit Rights established thereunder
may be assigned by Developer to and exercised by Licensee in Developer's discretion.
Upon a commercially reasonable request from Licensee and at Licensee's expense, Developer
shall use best efforts to exercise its Developer Audit Rights and report findings that
Developer reasonably determines are or could be material to Licensee; |
| (c) | shall
use commercially reasonable efforts to require that each Co-Publisher forward copies
of all statements from Distributors to Developer, and Developer shall provide such copies
to Licensee, as soon as reasonably practicable following receipt of such statements;
and |
| (d) | if
the revenue sharing terms of the Third-Party Co-Publishing Agreement would result in
Licensee receiving less than the Licensee Share set forth in Section 6.3, then Developer
shall secure Licensee's approval prior to entering into such Third Party Co-Publishing
Agreement. |
| | 1.5. | Grant
of Right to Sales Receipts of Licensed Game. |
| | 1.5.1. | Notwithstanding the
non-exclusive nature of the Publishing License, Developer shall pay directly to Licensee without deduction of any kind all
Licensed Game Receipts received by Developer, and shall use commercially reasonable efforts to provide that all Third-Party
Co-Publisher Agreements with Third-Party Co-Publishers entered into by Developer provide that all Licensed Game Receipts
generated by such Third-Party Co-Publishers shall be paid directly to Licensee without deduction of any kind. "Licensed
Game Receipts" means all sales receipts generated by any Co-Publisher from the Licensed Game; provided, however, and
for the avoidance of doubt, that Licensed Game Receipts shall not include any proceeds received by Developer pursuant to its
rewards crowdfunding campaigns for the Licensed Game conducted on ▇▇▇.▇▇, and shall not include any amount of the Development
Amount. |
| | 1.5.2. | Co-Publisher Redirected
Payments. To the extent that any Co-Publisher other than
Licensee receives Licensed Game Receipts from Distributors directly (including, without limitation, as a result of the Co-Publisher
also serving as a Distributor), Developer agrees that it shall promptly pay any such Licensed Game Receipts it so receives,
and shall use commercially reasonable efforts to cause any other Co-Publisher to promptly pay any such Licensed Game Receipts
they so receive (in each case, "Co-Publisher Redirected Payments"), to Licensee without deductions of any
kind and within thirty (30) days after the end of the calendar month in which such Licensed Game Receipts were so received
and include a copy of all statements received by the paying Co-Publisher from each Distributor. |
| | 1.5.3. | Developer
Records. Developer shall maintain books and records
reasonably sufficient to permit verification of any Co-Publisher Redirected Payments. Licensee shall be permitted to
examine these books and records as they relate to distribution of the Licensed Game, such examination to occur during
regular business hours, upon reasonable notice, and in a manner that is not disruptive to the examined Developer's
business. In the event any such inspection reveals that Developer has underpaid or caused to be underpaid any amount, then
in addition to any and all other rights and remedies available to Licensee hereunder, Developer shall immediately pay the
underpaid amounts upon demand. Such payments shall also include interest calculated from the date such payments were
originally due at the rate of the lower of (i) One and One Half Percent (1.5%) per month, or (ii) the maximum rate
permitted by law. |
| | 1.5.4. | Third-Party Co-Publisher
Deductions. Licensee acknowledges that (i) Developer's commercially
reasonable efforts in accordance with this Section 1.5 notwithstanding, Licensee understands any Third-Party Co-Publisher
may not agree to pay or arrange for the payment of Licensed Game Receipts it generates directly to Licensee or may not agree
to do so without deduction or within thirty (30) days after the end of the calendar month in which such Licensed Game Receipts
were so received, and (ii) Developer's failure alone to secure in any agreement with a Third-Party Co-Publisher terms that
Developer is required hereunder to exercise commercially reasonable efforts to secure shall not be deemed a breach of this
Agreement by Developer. For purposes of clarity, in the event any Third Party Co-Publisher deducts its revenue share from
the Licensed Game Receipts, then the Licensee Share (as set forth in Section 6.3) shall be calculated as if such deduction
had not taken. Developer acknowledges that Licensee expects to receive "wholesale" price for the Licensed Game,
which is expected to be approximately 70% of the retail price of the Licensed Game. |
| 2. | DELIVERY; PROCEDURE FOR APPROVAL |
| | 2.1. | Delivery.
Developer shall deliver the Licensed Game in executable Object Code format for each of the Committed Platforms in a form that
is suitable for submission for first party platform certification to Licensee no later than July 31, 2018 (as the same may
be extended by mutual agreement of the Parties, the "Expected Delivery Date"). Additionally, Developer shall
promptly deliver to Licensee any and all bug fixes, updates or upgrades of the Licensed Game that Developer develops for the
Committed Platforms, if any. "Object Code" means computer software, not readily perceivable by humans, and
suitable for machine execution without the intervening steps of interpretation or compilation. |
| | 2.2. | Approval
of Delivery. Licensee shall have ten (10) business days from the date Developer initially so delivers the Licensed Game
to approve the Licensed Game or reject the Licensed Game because it (i) contains errors, bugs, defects, malfunctions, failures,
nonconformities, other deficiencies in the operation of the Licensed Game; (ii) suffers from a material defect; or (iii) does
not substantially conform to the description in Exhibit A. Except as otherwise provided in this Section 2.2, any approval
or rejection by Licensee shall be in writing. If Licensee rejects the Licensed Game, Licensee shall specify in a written notice
to Developer the grounds for rejection, including commercially reasonable and detailed remedial recommendations, and Developer
shall use commercially reasonable efforts to revise the Licensed Game in accordance with such remedial recommendations within
the following thirty (30) calendar days after receipt of such written notice. This delivery and rejection process shall iterate
until Licensee accepts the Licensed Game in accordance with this Section 2.2; provided that if upon Licensee's third rejection
of the Licensed Game in accordance with this Section 2.2 or upon any rejection thereafter the Licensed Games suffers from
a material defect, Licensee may terminate this Agreement pursuant to Section 8.2. In the event that Licensee does not provide
a written approval or rejection within the time period set forth in this Section 2.2, the Licensed Game shall be deemed approved
by Licensee. |
| 3. | BUILD DELIVERY, REPORTS, MEETINGS, COOPERATION, CONSULTATION
AND AUDIT |
| | 3.1. | Build
Delivery Upon Licensee's Request. Developer shall, at any time prior to the Expected Delivery Date upon written notice
from Licensee, deliver or otherwise make available through file management systems such as Perforce the then-current build
of the Licensed Game for the Committed Platforms specified by Licensee in both Object Code and Source Code formats no later
than thirty (30) days from the date of each such request; provided, however, that Licensee shall not make (and Developer shall
not be required to honor under this Section 3.1) more than one (1) such request in any calendar quarter. "Source Code"
means computer software not in machine readable format and not suitable for machine execution without the intervening
steps of interpretation or compilation. |
| | 3.2. | Quarterly
Developer Reports and Meetings. Developer shall provide a brief written report no later than the last business day of
each calendar quarter prior to Licensee's approval of the Licensed Game in accordance with Section 2.2 regarding the current
status of the Licensed Game's development, including, without limitation, information regarding whether Developer will meet
the Expected Delivery Date. The Parties also agree to schedule a quarterly personal meeting with respect to each calendar
quarter prior to Licensee's approval of the Licensed Game in accordance with Section 2.2 to discuss such reports and any other
matters of concern (which meeting may be in person, by phone or by videoconference). |
| | 3.3. | Cooperation.
In relation to the Licensed Game, during reasonable business hours, Developer shall cooperate with Licensee to develop and
create certain materials, including interviews, written copy, visual materials and videos about the Licensed Game. Developer
and Licensee further agree that each shall cooperate with the other as reasonably requested from time to time with regard
to the marketing, advertising, promotion and distribution of the Licensed Game. |
| | 3.4. | Consultation
Rights. Developer shall consult meaningfully with Licensee over material business matters pertaining to the development
of the Licensed Game. Licensee will designate one or more individuals who will be its representative(s) with respect to the
foregoing consultation rights, which designation may be changed by Licensee from time to time in consultation with Developer.
Licensee hereby initially designates ▇▇▇▇▇▇ ▇▇▇▇▇▇ with respect to the foregoing consultation rights. Such business matters,
with respect to the Licensed Game, include: budgeting, cash flow and liquidity considerations, how to address technical challenges,
choices of (i) technology platforms and devices for which the Licensed Game should be developed, (ii) languages in which the
Licensed Game should be localized, and (iii) Distributors that should be used. |
| | 3.5. | Developer
Books and Records; Right to Audit. Developer will maintain books and records that clearly describe the application of
the Development Amount toward development of the Licensed Game. Such books and records must be maintained reasonably separate
from Developer's books and records related to other games and projects of Developer for Licensee to determine how the Development
Amount is and has been applied. Licensee may examine these books and records as they relate to the application of the Development
Amount, such examination to occur during regular business hours, upon reasonable advance written notice, and in a manner that
is not disruptive to Developer's business. In the event any such inspection reveals that Developer has allocated or spent
any material part of the Development Amount for purposes unrelated to the development of the Licensed Game, then in addition
to any and all other rights and remedies available to Licensee hereunder, Developer shall immediately return to Licensee such
amount, upon written demand from Licensee, and the Parties shall agree upon a reasonably prompt payment schedule and/or time
frame for such return. |
| 4. | DEVELOPER REPRESENTATIONS AND WARRANTIES |
| | 4.1. | Ownership.
Developer represents that it is the owner of the Licensed Game, the Developer Brand Features, and all Intellectual Property
Rights therein and thereto. |
| | 4.2. | No
Liens or Encumbrances. Other than pursuant to this Agreement, Distribution Agreements and Third-Party Co-Publisher Agreements,
Developer has not and will not cause or allow any liens or encumbrances to be placed against, grant any security interest
in, or otherwise sell, transfer, bequeath, quitclaim or otherwise assign, or allow any of the forgoing to occur to, the Intellectual
Property Rights in and to the Licensed Game without Licensee's prior written consent. |
| | 4.3. | Resource
Schedule. Developer shall employ commercially reasonable efforts to produce the Licensed Game in accordance with a resource
schedule approved in writing by Licensee (once so initially approved, and as the same may be amended from time to time by
the Parties' mutual written consent, the "Resource Schedule") that sets forth the estimated development timeline
and objectives for the Licensed Game and the corresponding installment amounts and delivery dates of the Development Amount
anticipated by Developer (the "Anticipated Installment Schedule"). |
| | 4.4. | Power
and Authority. Developer represents that it has all of the rights necessary for Developer to satisfy its obligations hereunder
and has the ability, power and permission to grant the rights granted to Licensee hereunder and to make such promises and
covenants as are set forth herein. |
| | 4.5. | No
Conflict. Developer represents that its execution, delivery and performance of this Agreement does not and shall not conflict
with or violate any applicable law, rule or regulation or the terms of any agreement between Developer and any third party. |
| | 4.6. | Game
Content. Developer represents that the Licensed Game does not contain (i) any material that is pornographic, obscene,
or defamatory, (ii) any hidden "easter eggs" containing any of the foregoing content; (iii) any computer programming
routines that are intended to damage, detrimentally interfere with, surreptitiously access, intercept or expropriate any system,
data or personal information, or contain any viruses, Trojan horses, worms, time bombs, back-doors, cancelbots or other malicious
or unauthorized components; or (iv) "Open Source" means any software that requires as a condition of use,
modification and/or distribution of such software that such software or other software incorporated into, derived from or
distributed with such software: (i) be disclosed or distributed in source code form; or (ii) be redistributable at no charge.
Open Source includes, without limitation, software licensed or distributed under any of the following licenses or distribution
models, or licenses or distribution models similar to any of the following: (a) GNU's General Public License (GPL) or Lesser/Library
GPL (LGPL), (b) the Artistic License (e.g., PERL), (c) the Mozilla Public License, (d) the Netscape Public License, (e) the
Sun Community Source License (SCSL), (f) the Sun Industry Source License (SISL), and (g) the Apache Server license. Notwithstanding
the foregoing, all "MIT licenses" published at any time through the website of the Open Source Initiative, and the
UE4 License, are hereby approved by Licensee; and provided, further, that if Developer wishes to include any other Open Source
code in the Licensed Game it shall seek permission from Licensee, which permission shall not be unreasonably withheld or delayed. |
| | 4.7. | Sufficiency
of Funds. Developer represents that the Development Amount, when taken together with funds that are currently available,
or that Developer reasonably believes will become available within a commercially reasonable timeframe, to Developer to develop
the Licensed Game, is an amount that will be sufficient to develop the Licensed Game for the Committed Platforms in accordance
with the Agreement. |
| 5. | LICENSEE REPRESENTATIONS AND WARRANTIES |
| | 5.1. | Power
and Authority. Licensee represents that it has all of the rights necessary for Licensee to satisfy its obligations hereunder
and has the ability, power and permission to grant the rights granted to Developer hereunder and to make such promises and
covenants as are set forth herein. |
| | 5.2. | No
Conflict. Licensee represents that its execution, delivery and performance of this Agreement does not and shall not conflict
with or violate any applicable law, rule or regulation or the terms of any agreement between Licensee and any third party. |
| | 5.3. | Licensee's
Qualification. Licensee has such knowledge and experience in financial and business matters that Licensee is capable of
evaluating the merits and risks of entering into this Agreement, and Licensee is able to bear the economic and other risks
associated with entering into this Agreement. |
| | 5.4. | Licensee
Investigation. Licensee has had access to such information concerning Developer as Licensee deems necessary to enable
Licensee to make an informed decisions concerning entering into this Agreement. Licensee has had the opportunity to ask questions
and received answers satisfactory to Licensee concerning this Agreement and Developer's qualifications to develop the Licensed
Game in general. Licensee has obtained all additional information requested by Licensee from Developer that Licensee deems
necessary to verify the accuracy of all information furnished by Developer to Licensee in connection with this Agreement. |
| | 5.5. | No
Reliance; Questionnaire. No representations or warranties have been made to Licensee by Developer other than as set forth
in this Agreement. Licensee understands and acknowledges that Developer's responses to Licensee's form of Developer Questionnaire,
which responses have previously been prepared and delivered by Developer to Licensee, have been completed and delivered to
Licensee by Developer in good faith as part of Licensee's due diligence investigation of Developer; however Licensee hereby
acknowledges, understands and agrees that (i) although Developer has no reason to believe that such responses are not accurate
and complete, Developer assumes no responsibility for the accuracy or completeness of such responses, (ii) such responses
are not incorporated into this Agreement or being relied upon in any manner by Licensee in entering into this Agreement, and
(ii) the Developer Questionnaire will not be publicly disclosed by Licensee and Licensee will maintain and preserve the confidentiality
of such responses in accordance with Section 7 below, except Licensee may include information from the Developer Questionnaire
in the Licensee's description of the Developer and the Licensed Games in materials used in the offering of the Licensee's
securities related to the Licensed Game, including Licensee's public filings with the SEC, which descriptions shall be provided
to Developer prior to public disclosure and be reasonably acceptable to Developer. |
| | 5.6. | No
Issuer. Licensee acknowledges and agrees that Developer is entering into this Agreement solely in Developer's capacity
as a developer of video games for publication and distribution by Licensee, and not as an issuer or co-issuer of securities
in any securities offering, including, without limitation, any Fig Securities Offering (defined below). |
| 6. | DEVELOPMENT AMOUNT; ROYALTY |
| | 6.1. | Development
Amount. Licensee shall pay to Developer $600,000 (the "Minimum Development Amount") plus additional amounts
up to a maximum total amount of $3,000,000 (the "Maximum Development Amount"), to be used by Developer in
the development and publishing of the Licensed Game. The aggregate amount actually delivered by Licensee to Developer under
Sections 6.1 and 6.2, less any amounts returned by Developer to Licensee pursuant to Section 3.5, determined at the time the
Licensed Game is approved by Licensee in accordance with Section 2.2, shall be referred to herein as the "Development
Amount". To the extent of the Minimum Development Amount, Licensee shall deliver the Minimum Development Amount in
accordance with the Anticipated Installment Schedule; thereafter Licensee shall deliver amounts in accordance with Section
6.2. |
| | 6.2. | Development
Expenses. Developer hereby acknowledges that, except to the extent required to deliver the Minimum Development Amount
in accordance with the Anticipated Installment Schedule, Licensee will not make available the amounts delivered pursuant to
Sections 6.1 and 6.2 at any one time, but will make periodic payments of such amounts to Developer in a manner which enables
Developer to pay the expenses of development and publication of the Licensed Game as set forth in the Resource Schedule ("Development
Expenses"). All payments to Developer pursuant to this Section 6 shall be deemed to have been made available for
Development Expenses only and shall be used by Developer solely for Development Expenses. |
| | 6.3. | Developer
Royalty. Licensee shall pay to Developer Gross Receipts minus the Licensee Share (the "Developer Royalty")
in accordance with this Agreement. |
| | 6.3.1. | "Gross Receipts"
means Licensed Game Receipts actually paid to Licensee by any Co-Publisher (including by way of Co-Publisher Redirected
Payments) provided, however, and for the avoidance of doubt, that Gross Receipts shall not include any proceeds received by
Developer pursuant to its rewards crowdfunding campaigns for the Licensed Game conducted on ▇▇▇.▇▇, and shall not include
any amount of the Development Amount. |
| | 6.3.2. | "Adjusted Gross
Receipts" means 99.9% of Gross Receipts. |
| | 6.3.3. | The "Licensee
Share" consists of: |
| | (i) | 0.1% of Gross Receipts, and |
| | (ii) | Adjusted Gross Receipts multiplied by the Calculated
Rate. |
| | | Gross Receipts
as used only in this Section 6.3.3 for purposes of calculating the Licensee Share shall include any amounts, if any, deducted
by the Developer or Third-Party Co-Publisher prior to actual receipt by the Licensee. |
| | 6.3.4. | With respect
to the first Adjusted Gross Receipts up to US$13,333,333, the "Calculated Rate" shall mean 2.5 times the
Development Amount divided by US$33,333,333. |
| | | With respect
to Adjusted Gross Receipts in excess of US$13,333,333, the "Calculated Rate" shall mean 1.0 times the
Development Amount divided by US$33,333,333 |
| | 6.4. | Reserve.
Upon each payment of the Developer Royalty otherwise due in accordance with Section 6.3 above and Section 6.5 below (each,
a "Developer Royalty Installment"), as security against chargebacks, returns, disputed charges, fraudulent
charges and/or bad debt incurred, Licensee shall be entitled to retain a reserve from such Developer Royalty Installment of
not more than ten percent (10%) of the amount of such Developer Royalty Installment. All reserves so retained shall, to the
extent not actually applied by Licensee towards chargebacks, returns, disputed charges, fraudulent charges and/or bad debt
incurred during the 6-month period following the date such entire Developer Royalty Installment would otherwise be due in
accordance with Section 6.3 and Section 6.5 shall be immediately paid to Developer. |
| 6.5. | Statements
and Payments. Subject to Section 6.4, the Developer Royalty shall be paid no later
than thirty (30) days after the end of the calendar month in which the Gross Receipts
are received by Licensee and shall include (i) a reasonably detailed statement from Licensee
regarding the payment amount and related information, (ii) a copy of all related statements
received by Licensee from each Distributor or Co-Publisher and (iii) a statement detailing
the amount of the Developer Royalty payment retained as a reserve pursuant to Section
6.4. |
| 6.6. | Taxes.
To
the extent necessary to comply with the laws, rules and regulations of the United States, and any treaties between the
United
States and any countries outside the United States, Licensee shall be entitled to withhold foreign withholding taxes at the
applicable rate set forth in such treaties. Licensee shall use commercially reasonable efforts to furnish to Developer
the original or a copy of a receipt evidencing payment thereof in a form acceptable to the government of the foreign country
or other relevant local tax authority, certifying the fact that such tax has been duly paid and account to Developer for its
pro-rata share of such tax credit, if any. If for any reason Licensee does not withhold such taxes, then Developer agrees to
pay such taxes within sixty (60) days from the date of notice from Licensee. If Developer does not pay such taxes and the
relevant tax authority holds Licensee liable, then Developer agrees to indemnify Licensee for any such liability within
sixty
(60) days from the date of Licensee's notice thereof. |
| 7. | CONFIDENTIAL INFORMATION |
| 7.1. | Confidential
Information. Each Party acknowledges that by reason of its relationship to the other
Party under this Agreement it will have access to and acquire knowledge from, material,
data, systems and other information concerning the operation, business, financial affairs,
products, customers, trade secrets and intellectual property of the other Party that
may not be accessible or known to the general public, including, but not limited to the
terms of this Agreement and Developer’s responses to Licensee’s form of Developer
Questionnaire (collectively, “Confidential Information”). |
| 7.2. | No
Disclosure. Each Party agrees to: (i) maintain and preserve the confidentiality of
all Confidential Information received from the other, both orally and in writing, including,
without limitation, taking such steps to protect and preserve the confidentiality of
the Confidential Information as it takes to preserve and protect the confidentiality
of its own confidential information; (ii) disclose such Confidential Information only
to its own employees and contractors on a “need-to-know” basis, and only
to those employees and contractors who have agreed to maintain the confidentiality thereof;
and (iii) not disclose such Confidential Information to any third party (other than employees
and contractors as set forth in subpart (ii) hereof) without the express written consent
of the disclosing Party, provided, however that each Party may disclose the financial
terms of this Agreement to its legal and business advisors and to potential investors
so long as such third parties agree to maintain the confidentiality of such Confidential
Information. Each Party further agrees to use the Confidential Information only for the
purpose of performing this Agreement. Whenever requested by a disclosing Party and provided
the same is not required for the performance by the receiving Party of its obligations
hereunder, a receiving Party shall immediately return to the disclosing Party all manifestations
of the Confidential Information or, at the disclosing Party’s option, shall destroy
all such Confidential Information as the disclosing Party may designate. |
| 7.3. | Exclusions.
The Parties’ obligations under Section 7.2 above shall not apply to Confidential
Information which: (i) is or becomes a matter of public knowledge through no fault of
or action by the receiving Party; (ii) was rightfully in the receiving Party’s
possession prior to disclosure by the disclosing Party; (iii) subsequent to disclosure,
is rightfully obtained by the receiving Party from a third party who is lawfully in possession
of such Confidential Information without restriction; (iv) is independently developed
by the receiving Party without resort to the disclosing Party’s Confidential Information
as evidenced by the receiving Party’s written business records; or (v) information
from the Developer Questionnaire used in the Licensee’s description of the Developer
and the Licensed Games in materials used in the offering of the Licensee’s securities
related to the Licensed Game, including Licensee’s public filings with the SEC,
which descriptions shall be provided to Developer prior to public disclosure and be reasonably
acceptable to Developer. Notwithstanding the provisions of Section 7.2, the receiving
Party will not be in breach of its obligations hereunder if and to the extent it is required
by law or judicial order or stock exchange regulation to disclose any Confidential Information
of the disclosing Party, provided that prior written notice of such required disclosure
is furnished to the disclosing Party as soon as practicable in order to afford the disclosing
Party an opportunity to seek a protective order. |
| 8.1. | Term.
The term of this Agreement shall commence as of the Effective Date and shall continue
for the duration of the term of copyright protection for the last-to-expire version of
the Licensed Game in each country unless otherwise terminated as set forth in this Section
8. |
| 8.2. | Termination
by Licensee for Material Defect. Licensee may immediately terminate this Agreement
upon written notice to Developer upon Licensee’s third rejection of the Licensed
Game pursuant to Section 2.2 or any subsequent rejection thereafter if the Licensed Game
then suffers from a material defect. |
| 8.3. | Termination
for Cause. Either Party may terminate this Agreement upon written notice to the other
Party: (i) upon a material default or material breach by the other Party of any of its
material obligations under this Agreement, or any material inaccuracy on such other Party’s
part with respect to any material representation or warranty by such other Party set
forth in this Agreement, excluding Licensed Game delivery matters which shall be subject
to the requirements of Section 2 and Section 8.2, unless within thirty (30) calendar
days after receipt of written notice of such default, breach or inaccuracy (the “Cure
Period”), which written notice is required hereunder, the defaulting Party
remedies such default, breach or inaccuracy; or (ii) if the other Party seeks protection
under any bankruptcy, receivership, trust, deed, creditor's arrangement, or comparable
proceeding, or if any such proceeding is instituted against such other Party and not
dismissed within ninety (90) days; it being understood by the Parties with respect to
termination pursuant to item (i) above, that the ability of a Party to remedy a default,
breach or inaccuracy during the Cure Period shall be subject to the following: (x) such
default, breach or inaccuracy is actually capable of being cured during the Cure Period,
and (y) the allowance of such Cure Period would not materially restrict the non-defaulting
Party’s ability to exploit the Licensed Game, or materially and adversely affect
the non-breaching Party’s rights or interests in the Licensed Game. |
| | 8.4. | Effect of Termination. |
| 8.4.1. | Except
as set forth in Section 8.5, upon any termination of this Agreement pursuant to this
Section 8 by either Party, all obligations and rights and licenses granted hereunder
shall immediately terminate and each Party shall have no further obligation to make any
payments contemplated by Section 1.4 or Section 6 (other than any such payments attributable
to any period(s) ending on or before the date of termination that have not yet been paid
and other than as set forth in Section 8.4.2. and 8.5). Each Party shall retain ownership
of its respective Confidential Information, and shall, if requested, return to the other
Party all of the Confidential Information received from the other Party up to the effective
date of termination. |
| 8.4.2. | In
the event Licensee has terminated this Agreement pursuant to Section 8, Licensee shall be entitled, in addition to any other rights
and remedies, to recover any portions of the Development Amount that have been advanced to Developer in excess of the Gross Receipts
that have been retained by Licensee (the “Unrecouped Paid Advances”) as follows: |
| (i) | Developer
shall pay to Licensee the equivalent of the Licensee Share with respect to future Licensed
Game Receipts received by Developer until the Unrecouped Paid Advances are paid back
in full; |
| (ii) | If
Developer sells or otherwise transfers the Licensed Game or all or substantially all
of the Intellectual Property Rights related to the Licensed Game, pay to Licensee an
amount equal to the Unrecouped Paid Advances from the proceeds of the sale, and if the
proceeds are not sufficient to fully pay back the Unrecouped Paid Advances, Developer
will require the purchaser of the Licensed Game or all or substantially all of the Intellectual
Property Rights to assume Developer’s obligations to pay back the Unrecouped Paid
Advances pursuant to this Section 8.4.2. |
| 8.5. | Survival.
Sections 3.5 (Developer Books and Records; Right to Audit), 4 (Developer Representations
and Warranties), 5 (Licensee Representations and Warranties), 7 (Confidential Information),
8 (Termination), 9 (Indemnification) and 10 (General) shall survive the termination or
expiration of this Agreement. In addition, in the event the Licensed Game has been delivered
to Licensee pursuant to Section 2, then following termination of this Agreement for cause
pursuant to Section 8.3, (i) the rights and licenses granted by Developer to Licensee
shall survive, solely to permit the distribution of the Licensed Game to end users who
purchased the Licensed Game or other persons who have been permissibly distributed the
Licensed Game prior to such termination and (ii) Licensee shall be obligated to pay the
Developer Royalty with respect to all Gross Receipts arising in connection therewith.
The Parties acknowledge and agree that to the extent the licenses granted in Section
1 survive or are exercised after the termination of this Agreement, all terms and obligations
under Section 6 hereof shall also survive. The Parties acknowledge and agree that this
Agreement includes a “license of intellectual property” and is and shall
be subject to Sections 365(n) of the United States Bankruptcy Code, and that each party
shall be entitled to all rights and benefits of such sections in accordance with its
terms and conditions. |
| 9.1. | Mutual
Indemnification. Each Party hereby agrees to indemnify, defend, and hold the other,
and its respective subsidiaries, officers, directors, attorneys, affiliates, parents,
agents and employees, harmless from any losses, liabilities, causes of action and costs
(including reasonable attorneys’ fees) from, or on account of, or related to any
claims arising out of the following: (i) any breach by the indemnifying Party of its
obligations, representations and warranties hereunder, (ii) any claims by the indemnifying
Party’s creditors or alleged creditors to the effect that the other is responsible
or liable for its debts, commitments or other obligations; or (iii) the use of the Video
Game License as contemplated under this Agreement. |
| 9.2. | Notice;
Participation. The Party claiming indemnification pursuant to this Section 9 (the
“Indemnified Party”) shall promptly notify the party with the indemnification
obligation (the “Indemnifying Party”) of any such claim of which the
Indemnified Party becomes aware and shall: (i) at the Indemnifying Party’s expense,
provide reasonable cooperation to the Indemnifying Party in connection with the defense
or settlement of such claim, and (ii) at the Indemnified Party’s expense, be entitled
to participate in the defense of any such claim. |
| 9.3. | Settlement.
The Indemnified Party agrees that the Indemnifying Party shall have sole and exclusive
control over the defense and settlement of any such third party claim. However, the Indemnifying
Party shall not acquiesce to any judgment or enter into any settlement that adversely
affects the Indemnified Party’s rights or interests without prior written consent
of the Indemnified Party, such consent not to be unreasonably withheld. |
| 9.4. | Securities
Law Indemnification & Insurance. To the maximum extent permitted by law, Licensee
agrees to indemnify, defend, and hold harmless Developer and its officers, directors,
employees and agents (“Indemnitees”) from and against any loss, expense
(including reasonable attorneys’ fees), liability, damage or claim (any “Claim”),
made or brought on behalf of any person alleging that an Indemnitee violated securities
laws or similar laws in connection with this Agreement or the offer or sale of securities
by Licensee or its affiliates related to this Agreement (a “Fig Securities Offering”),
unless the Indemnitee’s wilful misconduct was the sole cause of such Claim.
Licensee shall use best efforts to obtain, within ninety (90) days from the date of this
Agreement, insurance covering Claims naming the Indemnitees as third party insureds underwritten
by a carrier with an A.M. Best insurance company rating of no less than “A”
and providing coverage in amounts no less than $1 million per occurrence and $1 million
in the aggregate. Within fifteen (15) calendar days after the end of such ninety (90)
day period, Licensee shall deliver to Developer a written summary of the best efforts
used by Licensee to obtain such insurance coverage, including the dates of correspondence
with insurance professionals and the subject matter of such correspondence and a detailed
description of each policy quote received by Licensee. To the extent such insurance is
obtained, Licensee will produce evidence of such insurance upon the request of any Indemnitee. |
| 10.1. | Authority.
Each Party represents and warrants to the other Party that: it has the power and authority
to enter into this Agreement, to grant the licenses contained herein and to otherwise
perform its obligations and covenants hereunder; it has duly executed and delivered this
Agreement pursuant to the due authorization thereof; and this Agreement represents its
valid and binding obligation, duly enforceable against it according to the terms hereof. |
| 10.2. | Disclaimers.
Notwithstanding anything else to the contrary in this Agreement, neither Licensee nor
Developer makes any representation, warranty or guaranty as to the amount of gross revenue
that will derive from the exploitation of the Licensed Game or as to the commercial success
thereof. |
| 10.3. | Governing
Law and Jurisdiction. This Agreement shall be governed by and interpreted under the
laws of the State of California, without reference to its choice of laws principles.
The Parties expressly understand and agree that any dispute arising under this Agreement
will be brought exclusively in the state or federal courts within the County of San Francisco,
California and the Parties hereby consent to the exclusive personal jurisdiction and
venue therein. The Parties expressly waive the application of the United Nations Convention
on Contracts for the International Sale of Goods to the terms of this Agreement. |
| 10.4. | Controls.
Both Parties will adhere to all applicable laws, regulations and rules relating to the
export of technical data and will not export or re-export any technical data, any products
received from the other Party or the direct product of such technical data to any proscribed
country listed in such applicable laws, regulations and rules unless properly authorized. |
| 10.5. | Independent
Contractor. The relationship created by this Agreement is one of independent contractors,
and not partners, franchisees or joint ventures. No employees, consultants, contractors
or agents of one Party are employees, consultants, contractors or agents of the other
Party, nor do they have any authority to bind the other Party by contract or otherwise
to any obligation, except as expressly set forth herein. They will not represent to the
contrary, either expressly, implicitly or otherwise. |
| 10.6. | Notices
and Approvals. All notices, approvals and demands under this Agreement will be in
writing and will be delivered by personal service, confirmed fax, confirmed e-mail, express
courier, or certified mail, return receipt requested, to the attention of the chief executive
officer of the receiving Party at the address of the receiving Party set forth below,
or at such different address as may be designated by such Party by written notice to
the other Party from time to time. Notice shall be deemed received on the day of personal
service; on the first business day after confirmed e-mail or overnight express courier;
and on the third business day after sending by other express courier or certified mail. |
If
to Developer:
Double
Fine Productions, Inc.,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Email: ▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
If
to Licensee:
Fig
Publishing, Inc.
▇▇▇
▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Email: ▇▇▇▇▇▇@▇▇▇.▇▇
| 10.7. | No
Assignment. This Agreement may not be assigned by either Party to any person, firm,
or entity without the express written approval of the other Party (which approval may
be withheld in the Party’s sole discretion) and any attempt at assignment in violation
of this Section 10.7 shall be null and void. |
| 10.8. | Force
Majeure. Neither Party will be deemed in default of this Agreement to the extent
that performance of its obligations or attempts to cure any breach are delayed or prevented
by reason of any act of God, fire, natural disaster, accident, act of government, shortages
of material or supplies or any other cause reasonably beyond the control of such party
(“Force Majeure”), provided that such party gives the other party
written notice thereof promptly and, in any event, within fifteen (15) days of discovery
thereof, and uses its diligent, good faith efforts to cure the breach. In the event of
such a Force Majeure, the time for performance or cure will be extended for a period
equal to the duration of the Force Majeure but not in excess of six (6) months. |
| 10.9. | Entire
Agreement. This Agreement constitutes the complete and exclusive agreement between
the Parties with respect to the subject matter hereof, superseding and replacing any
and all prior or contemporaneous agreements, communications, and understandings (whether
written or oral) regarding such subject matter. This Agreement may only be modified,
or any rights under it waived, by a written document executed by both Parties. |
| 10.10. | Advice
from Independent Counsel. The Parties hereto understand that this Agreement to which
it is a party is a legally binding agreement that may affect such Party’s rights.
Each Party represents to the other that it has received legal advice from counsel of
its choice regarding the meaning and legal significance of this Agreement and that it
is satisfied with its legal counsel and the advice received from it. |
| 10.11. | Judicial
Interpretation. Should any provision of this Agreement require judicial interpretation,
it is agreed that a court interpreting or construing the same shall not apply a presumption
that the terms hereof shall be more strictly construed against any Party by reason of
the rule of construction that a document is to be construed more strictly against the
Party who itself or through its agent prepared the same, it being agreed that all Parties
have participated in the preparation of this Agreement. |
| | 10.12. | Waiver.
The failure of either Party to exercise or enforce any of its rights under this Agreement will not act as a waiver, or continuing
waiver, of such rights. |
| | | |
| | 10.13. | Remedies
Cumulative. Any and all remedies herein expressly conferred upon a Party shall be deemed cumulative and not exclusive
of any other remedy conferred hereby or by law, and the exercise of any one remedy shall not preclude the exercise of any
other. |
| | | |
| | 10.14. | Headings.
Headings are for convenience only and shall not be considered in interpreting this Agreement. |
| | | |
| | 10.15. | Counterparts.
This Agreement may be signed by facsimile or digital image format and in counterparts by Licensee and Developer, each of which
counterpart shall be deemed an original and all of which counterparts when taken together, shall constitute but one and the
same instrument. |
| | | |
| | 10.16. | Severability.
If any provision of this Agreement is, becomes, or is deemed invalid or unenforceable in any jurisdiction, such provision
will be enforced to the maximum extent permissible in such jurisdiction so as to effect the intent of the Parties, and the
validity, legality and enforceability of such provision shall not in any way be affected or impaired thereby in any other
jurisdiction. If such provision cannot be so amended without materially altering the intention of the Parties, it shall be
stricken in the jurisdiction so deeming, and the remainder of this Agreement shall remain in full force and effect. |
INTENDING
TO BE LEGALLY BOUND, the Parties have each executed this Publishing License Agreement by their duly authorized representatives,
to be effective as of the date first written above.
| DOUBLE
FINE PRODUCTIONS, INC. | | FIG
PUBLISHING, INC. |
| | | | | |
| By: | /s/ ▇▇▇
▇▇▇▇▇▇▇ | | By: | /s/ ▇▇▇▇▇▇
▇▇▇▇▇▇ |
| | Name:
▇▇▇ ▇▇▇▇▇▇▇ | | | Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇ |
| | Title:
Chief Executive Officer | | | Title:
Chief Executive Officer |
Exhibit
A
Licensed
Game Description
Psychonauts
2
Grasslands
will be a sequel to one of the Grasslands Developer’s most successful games, Psychonauts. The original game, released in
2005, follows the story of a young psychic named Razputin in his quest to join an elite group of international psychic secret
agents, the Psychonauts. He runs away from the circus and breaks into their secret training facility, Whispering Rock Psychic
Summer Camp. As he begins his training by psychically delving inside the consciousnesses of his tutors and those around him, he
realizes all is not as it seems, and soon embarks upon a psychic odyssey through a variety of levels set inside the minds of misfits,
monsters and madmen.
In
Psychonauts 2, Raz will realize his dream and visit Psychonauts Headquarters. However, when he gets there, he will find that it
is not the perfect place he expected and will quickly realize that the Psychonauts need him more than he needs them. Psychonauts
2 will feature a new hub world inside Psychonauts HQ. The player will access new mental worlds as Raz peeks inside the minds of
a host of new characters who need his help to combat their inner demons and unravel their deep-seated emotional issues. Raz will
hone his secret agent psychic abilities — and learn new ones, too — using them to solve mysteries and uncover evil
plots.
Exhibit
B
Whitelisted
Distributors
▇▇▇.▇▇
20