Exhibit 10.65
AMENDMENT ONE
This Amendment ("Amendment") is entered into as of April 20, 2002 between
FUNIMATION PRODUCTIONS, LTD., a Texas limited partnership having its registered
office at ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ U.S.A.
("Licensor") and Infogrames, Inc, a Delaware corporation having its principal
offices at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ("Licensee").
W I T N E S S E T H:
WHEREAS, Licensor and Licensee entered into a Sublicense Agreement dated
October 27, 1999 (the "Agreement"); and
WHEREAS, both Licensee and Licensor are in agreement with respect to the
terms and conditions upon which to enter into this Amendment to amend the
Agreement;
NOW, THEREFORE, in consideration of the promises and agreements set forth
herein, the parties, each intending to be legally bound, do hereby agree as
follows:
1. Under the terms and conditions set forth herein, Licensee and its
affiliates shall have the non-exclusive right to sublicense print and online
strategy guides for Licensed Products to Prima Games, Inc., a division of
Random House, of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereafter,
"Prima").
2. Licensee shall insure, and hereby represents and warrants, that the terms
of its sublicense agreement with Prima (the "Sublicense") shall bind Prima, in
all material respects, to each and every applicable term, condition, and
obligation of the Agreement (as amended by this Amendment) to the same extent
that Licensee is bound thereby. Without in any way limiting the foregoing,
Licensee shall use reasonable efforts to insure that Prima will not do or
authorize any act which might in any way infringe upon, harm, or contest Toei
Animation's or Licensor's respective rights in or to the Film, the Property, or
the Protections, including without limitation diligently processing all
materials submitted by Prima for approval and exercising rights and remedies
under the Sublicense upon reasonable request by Toei Animation or Licensor.
3. Licensee shall contractually require that Prima shall adhere in all
material respects to each and every applicable term, condition, and
obligation of the Agreement and of this Amendment; Licensor hereby consents to
disclosure by Licensee of all such terms to Prima in order to facilitate
Prima's compliance therewith.
4. The Sublicense shall provide an acknowledgment by Prima that Licensor is an
intended third party beneficiary thereunder, with the right to bring suit
directly against Prima to enforce its rights.
5. The terms of the Sublicense shall provide that:
(a) with the understanding that additional products may be made
available by future agreement between Licensee and Licensor, the products
licensed thereunder shall be limited to one (1) strategy guide for each of the
following games (each a "Sublicensed Product"): "Legacy of Goku" for the
Gameboy Advance platform, and "Collectible Card Game" for the Gameboy Advance
platform;
(b) Intentionally omitted;
(c) the Sublicense shall, subject to the termination rights of Licensor,
expire no later than April 1, 2005, provided, however, that Prima shall have a
sell-off period during which it shall have the right to continue selling
existing inventory for a period of six (6) months following termination, but
further provided that the conditions, limitations, and restrictions applicable
to Licensee's sell-off period under sub-paragraphs 11(a)-(b) of the Agreement
shall be fully applicable to Prima;
Infogrames Amendment One 071702b Page 1 of 3
(d) sales, distribution, marketing, and promotion of Sublicensed Products
shall be restricted to the United States (including the territories and
possessions thereof), English-speaking Canada, Australia, New Zealand, and
South Africa;
(e) Licensee shall, on a quarterly basis, provide to Licensor the same
royalty statements regarding the Sublicensed Products which Prima provides to
Licensee, and such statements shall not be, in form or substance, less detailed
than the statements Licensee is required to provide to Licensor under the
Agreement;
(f) Licensor shall have the right to insert one (1) page of advertising
material, with the Licensee's prior consultation, input and reasonable approval,
into each Sublicensed Product at no cost to Licensor, provided that the design
and placement (but not the content) of such material shall be subject to the
reasonable approval of Prima;
(g) any term in the Sublicense that conflicts with this Amendment or with
the Agreement (as amended hereby) shall be null and void; and
(h) Prima shall have the right to refer to each Sublicensed Product as the
"Official Strategy Guide" with respect to the video game on which such
Sublicensed Product is based (but only with respect thereto), provided that such
reference shall not confer any exclusivity on Prima which is not expressly
provided for elsewhere herein.
6. The Sublicense shall provide that Prima pay royalties to Licensee at a rate
no less than twenty percent (20%) of Prima Net Sales (as defined below). All
payments from Prima to Licensee related to the Sublicense and/or the Sublicensed
Products (including without limitation the development thereof) shall be
reported by Licensee to Licensor, and Licensee shall pay to Licensor fifty
percent (50%) of all such payments or other consideration. The term "Prima Net
Sales" as used in this paragraph shall mean all revenue collected and/or
received by Prima from Prima's sale of copies of the Sublicensed Products, less
actual returns and credits for bona fide volume discounts. No royalties will be
paid on copies of the Sublicensed Products or authorized premium or promotional
materials (if any), such as hint books or trading cards, given away free of
charge to Licensee or the author, or for review, advertising, sample, sales
promotion, or like purposes, or on remaindered copies of the Sublicensed
Products, or on any copies sold at or below cost of goods; all such copies shall
be excluded from the calculation of Net Sales. Nothing herein shall be construed
as a grant of rights to Prima or Licensee to produce, sell, or distribute hint
books or trading cards, or to sell or give away any Sublicensed Product at
prices substantially below Prima's wholesale list prices or in any transaction
which is not bona fide.
7. Licensee shall, subject to the provisions of Paragraph 9 of this Amendment,
pay to Licensor a recoupable (but nonrefundable) advance (the "Advance") against
future revenue as stated in Paragraph 6 above in the amount of twenty thousand
dollars ($20,000). Such payment shall be due and payable thirty (30) days after
the date that the first Sublicensed Product is first available for purchase by
consumers.
8. The parties understand and agree that payments made hereunder from
Licensee to Licensor shall be on an account wholly separate from any payments
made with respect to Licensed Products under the Agreement, and that Licensee
shall not, through payments hereunder, recoup any advances paid under the
Agreement for Licensed Products. For the avoidance of doubt, Licensee shall be
allowed to recoup advances paid for Sublicensed Products.
9. Licensee recognizes that there is a possible conflict regarding the
Sublicensed Product based on the "Collectible Card Game" title, and Licensee
agrees to attempt to resolve such conflict. Therefore, Licensee's rights with
respect to such "Collectible Card Game" title are conditioned on Licensee
obtaining all necessary strategy guide rights pursuant to its agreement with
Donruss Playoff LP, and Licensee shall evidence the acquisition of such rights
to Licensor's reasonable satisfaction before proceeding with distribution of
any Sublicensed Product based on the "Collectible Card Game" title. In the
event that Licensee is unable to obtain such rights and to evidence the
acquisition of such rights to
Infogrames Amendment One 071702b Page 2 of 3
Licensor's reasonable satisfaction, then (a) Licensee hereby agrees, with full
knowledge of such conflict, not to distribute Sublicensed Products based on the
"Collectible Card Game" title and to fully indemnify and hold harmless Licensor
from and against any and all claims by third parties arising from or relating to
such conflict, provided that Licensor promptly notifies Licensee in writing of
the claim and allows Licensee to control, and fully cooperates with Licensee in,
the defense and all related settlement negotiations; and (b) Licensor agrees
that notwithstanding anything herein to the contrary the amount of the Advance
shall be ten thousand dollars ($10,000) rather than twenty thousand dollars
($20,000).
10. Capitalized terms used in this Amendment and not otherwise defined shall
have the same meaning ascribed to them as set forth in the Agreement.
Except as amended herein, all of the other terms and conditions of the Agreement
shall be in full force and effect. In the event of any inconsistency,
incongruity or conflict, the terms and conditions of this document shall
prevail.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have each caused to be affixed hereto its or his/her hand and seal the
day indicated.
LICENSOR:
FUNIMATION PRODUCTIONS, LTD.,
a Texas limited partnership
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director of Licensing
LICENSEE:
Infogrames, Inc.
a Delaware corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ 7/17/02
________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: SVP, General Manager
Infogrames Amendment One 071702b Page 3 of 3
