EXHIBIT 10.45
COMPUTER GAME LICENSE AGREEMENT
This Computer Game License Agreement ("AGREEMENT") is made and entered into by
and between TSR, Inc., a Wisconsin corporation having a principal place of
business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("TSR") and
Interplay, a California corporation having a principle place of business at
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("LICENSEE").
The following will set forth our mutual understanding and agreement
with respect to the grant of rights by TSR to LICENSEE to develop, manufacture,
distribute, promote, and sell products using the copyrights, trademarks, trade
names and other intellectual property listed in Schedule A ("LICENSED
PROPERTY").
1. Grant of License. Subject to and in accordance with all of the terms and
conditions of this AGREEMENT, TSR grants LICENSEE a license during the TERM to
develop, manufacture, distribute, promote; and sell the products identified in
Schedule B ("LICENSED PRODUCTS") using the LICENSED PROPERTY through wholesale
and retail channels (but not, without TSR's prior written consent, by way of
premiums Or giveaways or in connection with the sale or promotion of any other
products) in the countries identified in Schedule C ("TERRITORY"). This license
is non-exclusive except as may be designated in Schedules A, B, and C. Material,
products, and countries may be added to or deleted from the LICENSED PROPERTY,
LICENSED PRODUCTS, and TERRITORY, respectively, by mutual agreement of the
parties in writing. TSR may delete material, products, and countries from the
LICENSED PROPERTY, LICENSED PRODUCTS, and TERRITORY, respectively, at any time
if required by court order or otherwise in all countries other than those in
North America and Europe and in Japan and Australia. If any deletion occurs
pursuant to the foregoing sentence, TSR and LICENSEE agree to negotiate in good
faith a modification to the advance and royalty payments described herein.
2. Sublicensing. LICENSEE may enter into sublicenses provided that. Each
sublicense: (1) includes provisions for the protection of TSR's copyrights,
trademarks, and goodwill equivalent to the terms of Paragraphs 6-9, 17-18,
20-24, 26-27, and 34, of this AGREEMENT; (2) terminates immediately upon the
expiration or earlier termination of this AGREEMENT; and (3) prohibits the
sublicensee from itself sublicensinq any rights. LICENSEE will promptly provide
TSR with one (1) fully-executed original of each sublicense entered into. Any
LICENSED PRODUCTS produced or sold under a sublicense are subject to all terms
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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.
and conditions of this AGREEMENT and LICENSEE will take best efforts to ensure
compliance therewith.
3. Best efforts. LICENSEE agrees to use its best efforts to actively,
aggressively and effectively develop, manufacture, promote to the consumer and
to the trade, distribute and sell the LICENSED PRODUCTS in the TERRITORY.
LICENSEE will bear all costs in connection with those activities.
4. Prior activity. To the extent LICENSEE has engaged in any activity with
respect to the LICENSED PROPERTY relating to the LICENSED PRODUCTS prior to the
execution of this AGREEMENT, all such activity will be governed by the terms,
and subject to the conditions of this AGREEMENT.
5. Development. LICENSEE has the sole responsibility and obligation for the
cost of development, manufacturing, packaging, distribution, promotion and sale
of the LICENSED PRODUCTS. "Cost of development" includes, without limitation,
the cost of artwork, photography and related art services, from concept stage to
final product, whether such materials and services are furnished directly by
LICENSEE or by TSR at LICENSEE's expense. TSR may, at its option, loan materials
to LICENSEE free of charge. LICENSEE will promptly return such loaned materials
to TSR in their original condition when they are no longer needed by LICENSEE.
6. Approvals.
(a) In order to assure that the quality of all LICENSED PRODUCTS,
packaging, promotional material, or other use of the LICENSED PROPERTY is
consonant with, and does not reflect adversely upon, the goodwill of the
LICENSED PROPERTY and TSR. LICENSEE will consult with TSR during the development
of each LICENSED PRODUCT and will obtain TSR's prior approval, such approval not
to be unreasonably withheld, of each use of the LICENSED PROPERTY prior to
release or distribution. LICENSEE will not change the text or contents of any
approved use of the LICENSED PROPERTY without obtaining TSR's prior approval.
TSR has sole right to grant or withhold its approval of any use of the LICENSED
PROPERTY and may take into consideration such esthetics and other considerations
as TSR deems appropriate. TSR and LICENSEE will adhere to the following approval
procedures:
(i) LICENSEE will provide a sample of the material, design and artwork for
each LICENSED PRODUCT and its packaging
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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.
for TSR's approval and any other information requested by TSR concerning the
LICENSED PRODUCT at the following four stages (as appropriate for each LICENSED
PRODUCT) and will not proceed beyond each stage until it has received TSR's
approval:
* concept;
* preliminary design;
* final design;
* pre-production sample; and
* production sample.
(ii) LICENSEE will provide samples of any advertisements, point-of-sale, or
other promotional material for TSR's approval and will not publish distribute or
otherwise use the material until it has received TSR's approval.
(iii) All samples will be provided by LICENSEE without cost to TSR.
LICENSEE will submit English translations of all samples containing text not in
the English language.
(iv) TSR will notify LICENSEE of its approval or disapproval of each sample
in writing within ten (10) business days after TSR receives the sample and any
requested additional information from LICENSEE, or such longer period of time as
the parties may agree. If TSR does not approve or disapprove of a sample within
eight (8) business days after TSR receives the sample, LICENSEE may request
approval or disapproval by facsimile, and, if TSR does not thereafter approve or
disapprove of the sample within two (2) business days, the sample will be deemed
approved. If TSR disapproves of any sample, TSR will inform LICENSEE in writing
of the reasons for its disapproval.
(v) All samples and other communication relating to this approval procedure
will be directed to the persons designated by each party in Schedule J (the
"DESIGNATED PERSON" and "ALTERNATE PERSON"). The persons so designated may be
changed by the respective party upon written notice to the other party.
7. Recall of Unapproved Material. If LICENSED PRODUCTS or other materials
using the LICENSED PROPERTY are distributed to third
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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.
parties in violation of this AGREEMENT, LICENSEE will use its best efforts to
promptly withdraw and withhold such LICENSED PRODUCTS or other materials from
further distribution and to recover the LICENSED PRODUCTS or materials that have
already been distributed. LICENSEE is not, however, obligated to retrieve any
such LICENSED PRODUCTS or other material already in the possession of ultimate
consumers.
8. Complaints. LICENSEE will diligently address all legitimate complaints
brought to its attention regarding the LICENSED PRODUCTS. LICENSEE will advise
of any category of recurring complaint and of any complaint which LICENSEE
believe might result in legal or administrative action against LICENSEE or TSR.
9. Compliance with Laws. LICENSEE will comply with all sovereign, state and
any other local laws, regulations and rules, including without limitation all
trademark, patent and copyright laws of the United States and of any foreign
country or countries in the TERRITORY applicable to the subject matter of this
AGREEMENT other than the registration of intellectual property rights, and
LICENSEE will bear all costs associated with its compliance with such laws,
regulations, and rules.
10. Advance. Upon execution of this AGREEMENT and as otherwise provided in
Schedule E, LICENSEE will pay TSR as advances against royalties the amounts set
forth in Schedule E ("ADVANCES"). ADVANCES for each LICENSED PRODUCT are
deductible against royalties for that LICENSED PRODUCT only and are
non-refundable in all circumstances. The foregoing will not be interpreted as
limiting any action for damages in the event TSR is in default of its
representations or obligations hereunder.
11. Royalties. LICENSEE will pay TSR the ROYALTIES provided in Schedule H
of LICENSEE's income from LICENSED PRODUCTS. [*] LICENSEE may establish a
reserve for returns of not more than [*] of products sold which reserve will be
liquidated each quarter and may deduct any credit for actual returns from the
royalty payment for [*] in which the returns were accepted. "On-line Charges"
means the amount received by LICENSEE for use of the on-line system in
connection with the LICENSED PRODUCTS. "Sublicense Revenues" means all monies
actually received by Interplay pursuant to a sublicense, including any advances
received for sublicenses.
12. Payment of Royalties. Within [*] of the end of [*], LICENSEE will: (1)
send to TSR by facsimile or first class or air mail a royalty statement in the
form of Exhibit A showing the complete
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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.
computations made in calculating royalties for that [*]; and (2) wire transfer
to an account designated by TSR or send by first class or air mail the royalty
payment for [*]. If no sales of LICENSED PRODUCTS are made in [*], LICENSEE will
inform TSR of such fact in writing within [*] of the end of [*]. All payments
will be made in United States currency. Any payment not made when due will bear
interest from its due date to the date of payment at [*], or at such lower rate
of interest as may be required by law. Such interest is in addition to, and not
in lieu of, any other remedy to which TSR is entitled. LICENSEE will give such
further explanatory details of sales and the computation of royalties or other
payments as TSR may reasonably request.
13. Tax Treatment. Whenever possible, LICENSEE will take the necessary
steps to secure exemption from any obligation to withhold amounts for taxes
payable by TSR to any governmental body in the TERRITORY, and TSR will cooperate
with LICENSEE in such endeavor. If such endeavor is not successful, LICENSEE may
deduct the amount paid by LICENSEE in taxes charged directly against TSR and in
TSR's name PROVIDED that LICENSEE provides TSR with original documentation of
such payment. All other taxes payable in the TERRITORY are LICENSEE's sole
responsibility and will be paid entirely by LICENSEE.
14. Records. LICENSEE will maintain accurate and complete books and records
relating to the manufacture, distribution, and sale of the LICENSED PRODUCTS
during the TERM and for [*] thereafter. During this period, TSR's Certified
Public Accountant ("CPA") may, during regular business hours and on [*] written
notice to LICENSEE, examine and make extracts or copies of LICENSEE's books and
records to determine the accuracy of the statements furnished to TSR. LICENSEE
will cooperate and assist TSR's CPA in understanding LICENSEE's books and
records. LICENSEE will promptly pay any deficiency plus interest as set forth in
Paragraph 12. LICENSEE will pay the cost of the examination if the deficiency is
[*] of the royalty payment or greater.
15. Minimum Guarantee. If the actual royalty earned and received by TSR
during the ORIGINAL TERM, the 1ST OPTION TERM or the 2ND OPTION TERM is less
than the sums provided therefore in Schedule F ("MINIMUM GUARANTEES"), LICENSEE
will pay TSR the difference between the actual royalty earned and the MINIMUM
GUARANTEE for that TERM within [*] of the end of the TERM.
16. Marketing Date. LICENSEE will release its first LICENSED PRODUCT by the
date specified in Schedule a ("MARKETING DATE"). If LICENSEE does not comply
with this provision TSR may terminate this
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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.
AGREEMENT and retain all payments made to TSR as of the date of termination, it
being understood and agreed that such payments constitute liquidated damages and
not a penalty.
17. Samples. Promptly upon the start-up of LICENSEE's initial production
run, LICENSEEE will furnish to TSR without cost [*] samples of each LICENSED
PRODUCT including any packaging, labels, hang-tags, catalogs, advertising, or
other promotional material. Annually on the anniversary date of this AGREEMENT
during the TERM, LICENSEE will furnish to TSR without cost [*] samples from
recent production of each LICENSED PRODUCT including any packaging, labels,
hang-tags, catalogs, advertising, or other promotional material. TSR may
purchase from LICENSEE at LICENSEE's lowest selling price such royalty-free
units of any LICENSED PRODUCT as TSR may request for sale in TSR's mail order
catalog business or for other use. The amounts due to LICENSEE from TSR for such
purchases may be deducted from any royalties owed to TSR by LICENSEE.
18. Ownership of Related Works. LICENSEE acknowledges and agrees that,
except for development tools, all works developed by LICENSEE for use in
connection with the LICENSED PRODUCTS, including without limitation video and
computer game play elements, cluebooks, artwork, packaging, advertisements ,
text and translations ("RELATED. WORKS"), works of, and as associated by the
public With the LICENSED PROPERTY. Game play elements means the audiovisual
display of the computer and video games, including without limitation, game
play, rules, symbols, designs, likenesses, sound- and visual representations.
LICENSEE will have exclusive ownership of the copyright in all development tools
and RELATED WORKS. LICENSEE agrees that, if it chooses to register its
copyrights in any of the RELATED WORKS; it will register the RELATED WORKS as
derivative works of the LICENSED PROPERTy. LICENSEE also agrees that it will not
use the RELATED- WORKs either during or after the TERM of this AGREEMENT, Except
under license or approval from TSR.
19. New Trademarks. LICENSEEE wi1l not use any new trademark (not
originally owned by TSR or LICENSEE) in-connection with the LICENSED PRODUCTS
without TSR's prior -written approval. Any such new trademark will become a part
of the LICENSED PROPERTY and belong entirely to TSR, and LICENSEE's use of the
trademark will inure to TSR's benefit. If a new trademark is used in the United
States, Canada, United Kingdom, France, Germany, Japan, or Australia, TSR will
register the ▇▇▇▇ in that country at TSR's expense. LICENSEE may request that
TSR register a new trademark in any other country, in which event LICENSEE
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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.
and TSR will share equally the cost of registration. TSR will conduct and pay
for the cost of any necessary trademark searches of new trademarks in the United
States, Canada, United Kingdom, France, Germany, Japan, and Australia. LICENSEE
will conduct and pay for the cost of any necessary trademark searches of new
trademarks in any other country. Each party will promptly provide a copy of any
trademark searches of new trademarks conducted by that party to the other.
party. TSR will not use any new trademarks, either during or after the TERM of
this AGREEMENT, except in connection with a license to, or approval by,
LICENSEE.
20. Reservation of Rights. All rights not specifically granted herein are
reserved to TSR, including without limitation the right to fully exploit in and
out of the TERRITORY and during and after the TERM TSR's trademarks, trade names
and copyrights. Nothing in this AGREEMENT will prevent TSR during the ORIGINAL
TERM or OPTION TERM from preparing for, or holding discussions and arriving at
agreements with any third parties regarding, the exploitation of TSR's rights in
the LICENSED PROPERTY in connection with the LICENSED PRODUCTS so long as there
are no commercial sales of a product in derogation of LICENSEE's exclusive
license under this AGREEMENT during the TERM.
21. Trademark and Copyright Registration. LICENSEE will cooperate with
TSR's prosecution or renewal of any U.S. or foreign trademark registration in
connection with the LICENSED PROPERTY, including without limitation providing
copies of invoices or receipts showing sales by LICENSEE of the LICENSED
PRODUCTS and executing any appropriate documents. TSR will reimburse LICENSEE
(or, upon request, pay in advance) for any reasonable out-of-pocket expenses
over and above LICENSEE's normal operating costs, provided LICENSEE supplies
receipts for all expenses twenty-five dollars ($25.00) or greater.
22. Trademark and Copyright Ownership. LICENSEE will cooperate with TSR in
protecting- all rights in and to the LICENSED PROPERTY, including without
limitation trademarks and copyrights. Each of the LICENSED PRODUCTS, and all
packaging, labels, hang-tags, catalogs, advertising, or other promotional
material relating thereto will bear the proper CREDIT specified in Schedule I,
which may be amended by TSR in its reasonable discretion. LICENSEE may use its
house ▇▇▇▇ or other pre-existing trademarks or trade names ("LICENSEE'S
trademarks") in connection with the LICENSED PRODUCTS provided that LICENSEE's
trademarks do not appear more conspicuously than TSR's trademarks. LICENSEE
agrees to use the LICENSED PROPERTY only in the manner and form specified by
TSR. LICENSEE does not
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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.
acquire hereby any property rights in or to the LICENSED PROPERTY. LICENSEE will
not register for LICENSEE's benefit any LICENSED PROPERTY or any trademark or
trade name that is confusingly similar to any LICENSED PROPERTY as prohibited by
applicable law. LICENSEE agrees that it will not, during the TERM or thereafter,
directly or indirectly, contest the validity of the LICENSED PROPERTY or this
AGREEMENT. LICENSEE will, at TSR's request, execute any documents necessary to
confirm TSR's ownership of the LICENSED PROPERTY in any country in the
TERRITORY. TSR warrants, and LICENSEE acknowledges, TSR's ownership of or right
to license the LICENSED PROPERTY and LICENSEE will not do or permit to be done
any act that would impair the rights of TSR to the LICENSED PROPERTY. All use of
the LICENSED PROPERTY inures to the benefit of TSR.
23. Trademark and copyright Protection. LICENSEE will promptly notify TSR
of all infringements or violations of any of TSR's rights in the LICENSED
PROPERTY and will cooperate with TSR in the prosecution of any legal action for
infringement. If TSR prosecutes a legal action for infringement, TSR will bear
all costs and will reimburse LICENSEE (or, upon request, pay in advance) for any
reasonable out-of-pocket expenses over and above LICENSEE's normal operating
costs incurred by LICENSEE in cooperating with TSR, provided LICENSEE supplies
receipts for all expenses twenty-five dollars ($25.00) or greater. TSR has sole
right, power, and authority to pursue any infringement or violation that it
deems necessary or appropriate, and TSR is under no obligation to handle the
infringement or violation to the satisfaction of LICENSEE. In the event that TSR
advises LICENSEE that TSR will not participate in such legal action and that
there is no objection to LICENSEE prosecuting such action, then LICENSEE shall
be free to prosecute such action upon receiving express written permission and
any directions from TSR's authorized legal counsel, pay all costs and expenses
and receive all recoveries and awards; provided, however that TSR will always be
free to subsequently join in any pending action and recoveries and awards will
be divided between the parties according to their contribution to costs and
expenses.
24. Promotional Activities with Third Parties. LICeNSEE will not engage in
any promotional activity for the LICENSED PRODuCTs involving any third-Party or
third-party products without obtaining TSR's prior written consent, which
consent will not be unreasonably withheld.
25. Term. The license granted herein will be effective 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.
expire as of the dates specified in Schedule D, unless renewed or sooner
terminated in accordance with the provisions of this AGREEMENT. Upon the
expiration or termination of the TERM for any reason and any applicable sell-off
period, all royalties accrued to TSR will become immediately due and payable.
Furthermore, all rights licensed to LICENSEE will immediately revert to TSR and
LICENSEE will immediately cease all use or exploitation of the LICENSED PROPERTY
(except LICENSEE's sell-off rights, if any), including without limitation the
manufacture, distribution, sale or promotion of the LICENSED PRODUCTS. LICENSEE
acknowledges and agrees that if LICENSEE continues to use or exploit the
LICENSED PROPERTY, TSR will be immediately and irreparable harmed and that TSR
will be entitled to injunctive relief to stop such use or exploitation.
26. Bankruptcy. In the event that: (1) LICENSEE files a petition in
bankruptcy; (2) LICENSEE is adjudicated bankrupt; (3) a petition in bankruptcy
is filed against LICENSEE; (4) LICENSEE becomes insolvent or makes an assignment
for the benefit of creditors; (5) LICENSEE discontinues its business relating to
the LICENSED PRODUCTS; or (6) a receiver is appointed for LICENSEE or LICENSEE's
business, TSR may, upon written notice to LICENSEE, terminate this AGREEMENT. In
this event, neither LICENSEE nor LICENSEE's receivers, representatives,
trustees, agents, administrators, successors or assigns have any right to sell
any LICENSED PRODUCTS or otherwise exploit the LICENSED PROPERTY.
27. Breach. Except as may be otherwise provided in this AGREEMENT, if
LICENSEE breaches any material obligations of this AGREEMENT, TSR may, in
addition to exercising any of TSR's other rights, terminate the AGREEMENT upon
thirty (30) days written notice to LICENSEE. Such termination will become
effective immediately at the end of such thirty (30) day period unless LICENSEE
completely remedies the breach within that period. Notwithstanding the
foregoing, if LICENSEE breaches the approval provisions (Paragraph 6) or payment
of royalties provisions (Paragraph 12) of this AGREEMENT [*] during any [*]
regardless of whether the breaches have been cured or waived, TSR may give
LICENSEE written warning and, if LICENSEE breaches such provisions again during
the [*], TSR may terminate this AGREEMENT immediately by written notice to
LICENSEE.
28. Survival. The expiration or termination of this AGREEMENT will only
bring to an end the license granted to LICENSEE herein. All other provisions of
this AGREEMENT will remain in effect, including without limitation all monetary
obligations of LICENSEE.
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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.
The expiration or termination of this AGREEMENT will not constitute a waiver by
either party of any right of action for breach of this AGREEMENT and any such
right of action will survive expiration or termination of this AGREEMENT.
29. Expiration and Sell-Off. Upon the expiration but not the termination of
the AGREEMENT, and provided that LICENSEE has fully performed and continues to
fully perform all of LICENSEE's obligations hereunder, LICENSEE may, upon
written notice thirty (30) days prior to expiration have the non-exclusive right
to sell- (but not to manufacture) any finished units -of LICENSED PRODUCTS then
in LICENSEE's possession for a period of six (6) months after expiration.
30. Riqht to Purchase Inventory. Upon expiration or termination of the
AGREEMENT (including the sell-off period if applicable) TSR may purchase all or
any part of: (l) LICENSEE's then existing LICENSED PRODUCTS at the lower of
LICENSEE's actual manufacturing cost or sell-off price for each LICENSED
PRODUCT; and (2) LICENSEE's promotional materials for the LICENSED PRODUCTS at
the LICENSEE's actual cost for such materials. If TSR does not elect to purchase
all of LICENSEE's inventory, promotional materials or production materials, TSR
may: (1) designate a charity to receive all or part of the items; or (2) direct
LICENSEE to immediately destroy the remaining items and furnish TSR with a
certificate of destruction certified by an officer of LICENSEE's company.
31. Remaindering. LICENSEE will not remainder any LICENSED PRODUCT (i.e.,
sell at a price below LICENSEE's manufacturing cost therefor) less than twelve
(12) months after the product's launch without TSR's prior express written
approval in each instance. Before remaindering any products, LICENSEE will first
offer TSR the right to buy all or any part of such LICENSED PRODUCTS at the
lowest price and upon the terms LICENSEE has offered to remainder the products
to third parties.
32. confidentiality. The parties each agree that during the TERM of this
AGREEMENT, they may receive information regarding the other party's affairs
which the disclosing party considers to be confidential. Each party receiving
such confidential information agrees not to disclose it to any third party
except to its own employees and agents and only as necessary to perform its
obligations or exercise its rights under this AGREEMENT. This Paragraph is not
applicable to any information which: (i) the receiving party is authorized in
writing by the disclosing party to disclose; (ii) is
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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.
generally known in the trade or becomes part of the public domain in the trade
through no fault of the receiving party; (iii) is disclosed by the disclosing
party to others without restrictions on subsequent disclosure; (iv) is provided
to the receiving party by a third-party not under any confidentiality obligation
with regard thereto; or (v) is required by law to be disclosed.
33. Licensor's warranty. TSR warrants that it owns all rights in the
LICENSED PROPERTY and has the right to license the LICENSED PROPERTY. TSR will
indemnify and hold harmless LICENSEE and LICENSEE's officers, directors, agents
and employees against any claims or causes of action alleging that the LICENSED
PROPERTY infringes the rights of any third party. LICENSEE will give prompt
notice to TSR in writing of any such claim or cause of action. TSR may, at its
option, conduct the defense of any such cause of action and LICENSEE will
cooperate fully with TSR in such defense
34. Licensee's Warranty. LICENSEE warrants and represents that LICENSEE has
the right and the authority to enter into this AGREEMENT. Licensee also warrants
and represents that the Licensed Products are in all respects safe and
non-injurious and that assuming that TSR owns all rights in the Licensed
PROPERTY, they do not violate the rights of any third-party. LICENSEE agrees to
hold harmless and indemnify TSR against any and all claims of liability in
connection with the LICENSED PRODUCTS other than allegations that the LICENSED
PROPERTY infringes the rights of a third party), including without limitation
alleged trademark, copyright or patent infringement or defect in any LICENSED
PRODUCT.
35. Liability Insurance. LICENSEE will obtain and maintain, at its own
expense, during the TERM (including any sell-off period if applicable) and for
[*] thereafter Comprehensive General Liability Insurance coverage (including
Product Liability/Completed Operations and Blanket Contractual Liability)
written by an insurance company acceptable to TSR in an amount not less than [*]
per occurrence Personal Injury and Property Damage combined single limit (the
"Insurance Policy"). The Insurance Policy will name TSR and its officers,
directors, agents, and employees as additional insured parties and will require
the insurer to undertake their defense in any covered claim. The Insurance
Policy will require the insurer to give TSR at least thirty (30) days prior
written notice of any modification, cancellation, or lapse of the policy. Within
thirty (30) days after execution of this AGREEMENT or ten (10) business days
prior to the distribution of any LICENSED PRODUCTS, whichever is
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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.
earlier, LICENSEE will provide TSR with a fully paid Certificate of Insurance
(or such other evidence of coverage as is acceptable to TSR) which shows that
the Insurance Policy meets each of the above requirements. If LICENSEE fails to
furnish such proof of insurance or if the insurance is modified, cancelled or
allowed to lapse, TSR may, in addition to any other available remedies including
termination of this AGREEMENT, obtain insurance coverage and ▇▇▇▇ LICENSEE for
the premium cost. LICENSEE will pay such premium cost to TSR within ten (10)
business days after receiving TSR's ▇▇▇▇.
36. Force Majeure. Any delay in or failure of the performance of either
party is excused only if and to the extent it is caused by occurrences beyond
the party's control, including without limitation, acts of God, fire or flood,
governmental regulations, policies or actions, or any labor, material
transportation or utility shortage or curtailment. If any of these should occur,
the party whose performance will be effected will immediately notify the other
party in writing, explain how the party's performance may be affected, and give
its best estimate of the how long it will be affected. The affected party will
endeavor with due diligence to mitigate the effects on its performance.
37. Notices, Royalty statements and Payments. All notices will be in
writing and will be hand delivered, mailed first class or airmail, or
transmitted by wire to the appropriate party at the address set forth in
Schedule J directed to the attention of the DESIGNATED PERSON. Notices will be
effective: (1) if hand delivered, upon delivery; (2) if mailed first class or
airmail, five (5) business days after deposit; and (3) if transmitted by wire,
upon transmittal. All payments to TSR will be made payable to "TSR, Inc." mailed
first class or airmail with the royalty statement to TSR to the PAYMENT PERSON
and address set forth in Schedule K.
38. Binding Effect. This AGREEMENT will be binding upon and inure to the
benefit of TSR's successors and assigns. This AGREEMENT will be binding upon and
inure to the benefit of LICENSEE'S successors, but not LICENSEE's assigns except
to an entity succeeding to all or substantially all of LICENSEE's business. This
AGREEMENT is not assignable or delegable or sub-licensable by LICENSEE without
TSR's prior written consent and any attempt to do so is null and void and of no
force or effect.
39. Relationship of Parties. This AGREEMENT does not constitute a
partnership, joint venture or any other agency
---------------------
* 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.
relationship or employment relationship between the parties.
40. Entire Understanding. This AGREEMENT sets forth the entire agreement
and understanding between the parties relating the subject matter hereof and
supersedes all prior agreements and understandings, written or oral, relating to
the subject matter hereof. This AGREEMENT cannot be modified, amended, changed
or extended orally. No waiver by any party of any term of this AGREEMENT,
whether by conduct or otherwise, will be deemed a continuing waiver of the same
or any other term of this AGREEMENT.
41. Authorizations. All officers and individuals executing this AGREEMENT
and other documents on behalf of each party certify and warrant that they have
the capacity to do so.
42. Headings. The headings of this AGREEMENT are inserted only for
convenience and will not be construed as a part of this AGREEMENT. When
appropriate in this AGREEMENT, references to the singular will be read to
include the plural and vice versa, and pronouns will be read to include the
corresponding masculine, feminine, or neuter forms.
43. Governing Law. This AGREEMENT will be construed and governed by the
laws of the State of Wisconsin applicable to agreements made and to be performed
entirely in Wisconsin, U.S.A. without giving effect to any choice of law or
conflict of law provision or rule (whether of the State of Wisconsin or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Wisconsin. Any provision of this AGREEMENT
which is invalid, illegal or unenforceable in any jurisdiction will, as to that
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability, without in any manner affecting the remaining provisions
hereof in any jurisdiction or rendering that or any other provision of this
AGREEMENT invalid, illegal, or unenforceable in any other jurisdiction.
44. Legal Action. The parties submit exclusively to the personal
jurisdiction of the federal district court for the Eastern District of
Wisconsin, U.S.A. and the state court of Walworth County, Wisconsin, U.S.A. and
agree that such courts are a convenient forum for resolution of all disputes
regarding this AGREEMENT. The parties agree to accept service of process during
and after the TERM by mail (for LICENSOR, attention ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇) or any
other method
---------------------
* 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.
provided by Wisconsin law. Each party agrees that if so served it will not
object to the manner of service or the personal jurisdiction of the court
regarding any dispute relating to the AGREEMENT that is within the court's
subject matter jurisdiction. In the event that legal action is instituted
between the parties hereto in connection with this AGREEMENT, each party will be
entitled to recover from the losing party interest on any monetary award and its
costs and expenses of litigation, including without limitation court costs and
reasonable attorneys' fees, as to that part of the legal action for which it
prevails. Interest on any money judgement will accrue from the date the damages
were sustained and will be at the interest rate provided in Paragraph 12 of this
AGREEMENT unless a different rate of interest is required by law.
The parties indicate their understanding and agreement with all of the foregoing
by signing and dating this document in the space provided below.
ACCEPTED AND AGREED:
TSR: LICENSEE:
TSR, Interplay Productions, Inc.
By: /▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇/ By: /▇▇▇▇▇ ▇▇▇▇▇/
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Operating Officer Title: President
Date: 8/8/94 Date: 8/1/94
---------------------
* 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.
DATED:
TSR, INC. COMPUTER GAME LICENSE AGREEMENT
SCHEDULES ANNEXED TO THE FOLLOWING AGREEMENT
These Schedules are incorporated into and made a part of the Computer Game
License Agreement of the same date between TSR, Inc. and the Licensee identified
below:
LICENSEE:
Interplay Productions, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SCHEDULE A:
LICENSED PROPERTY:
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
"FORGOTTEN REALMS" fantasy worlds, including without limitation, the "ADVANCED
DUNGEONS & DRAGONS," "AD&D," TSR," and "TSR Logo" trademarks.
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.
Cluebooks and "900" telephone numbers containing hints, clues, diagrams, maps or
other material to assist players for said computer and video games.
---------------------
* 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.
This license is exclusive only as to computer and video games bearing the
"PLANESCAPE" or "FORGOTTEN REALMS" trademarks, and cluebooks and "900" telephone
numbers for said computer and video games. Nothing in this AGREEMENT will
prevent TSR from fully exploiting in any other manner its rights in the LICENSED
PROPERTY.
SCHEDULE C:
TERRITORY:
Worldwide
SCHEDULE D:
TERM:
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 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 two (2)
additional two (2) year periods (the "lST OPTION TERM" and "2ND OPTION TERM,"
respectively) upon written notice and payment of required advance to TSR at
least one (1) year prior to the expiration of the: (1) ORIGINAL TERM to accept
the 1ST OPTION TERM; and (2) the 1ST OPTION TERM to accept the 2ND OPTION TERM.
SCHEDULE E:
ADVANCES:
[*] due upon execution.
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
For each game title initially released other than as an Electronic Product, [*]
upon such initial release.
---------------------
* 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.
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 upon notification
by LICENSEE that it will exercise the 1ST OPTION TERM.
[*] due upon notification
by LICENSEE that it will exercise the 2ND OPTION TERM.
[*] per cluebook title due upon
initial shipment of that title.
SCHEDULE F:
MINIMUM GUARANTEE:
[*] for the
ORIGINAL TERM.
[*] for the 1ST OPTION TERM.
[*] for the 2ND OPTION TERM.
SCHEDULE G:
MARKETING DATE:
[*] after commencement of the AGREEMENT.
SCHEDULE H:
ROYALTIES:
Product Type Royalty
Personal computer and [*]
coin operated
On-line, cable, satellite or other
electronid transmission system [*]
Home video game cartridges [*]
---------------------
* 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.
Cluebooks [*]
Currently unknown platforms not
belonging in any of the
above categories Negotiated in good faith
Sublicensing Royalty
On-line games [*]
Products other than on-line games
developed by LICENSEE [*]
Products other than on-line games
developed by SUBLICENSEE
(where LICENSEE does not take a
substantial role in the
development of a product) [*]
SCHEDULE I:
CREDIT:
Trademark and copyright notice:
[list all trademarks used] are trademarks of TSR, Inc. Used by
Interplay Productions, Inc. under license from TSR, Inc.
SCHEDULE J:
NOTICES AND APPROVAL:
TSR: LICENSEE:
TSR, Inc. Interplay Productions, Inc.
▇.▇. ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
DESIGNATED PERSON: ▇▇▇▇▇▇▇ ▇▇▇▇ DESIGNATED PERSON: ▇▇▇▇▇ Camps
ALTERNATE PERSON: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ALTERNATE PERSON: ▇▇▇▇ ▇▇▇▇
SCHEDULE K:
PAYMENTS:
---------------------
* 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.
TSR, Inc.
▇.▇. ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
PAYMENT PERSON: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------
* 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.