EXHIBIT 10.50
ASSET PURCHASE AGREEMENT
- BY AND BETWEEN -
INTERPLAY ENTERTAINMENT CORP.
- AND -
BETHESDA SOFTWORKS LLC
DATED AS OF APRIL 4, 2007
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "AGREEMENT") is entered into as of
April 4, 2007 (the "EFFECTIVE Date") between BETHESDA SOFTWORKS LLC, a Delaware
limited liability company (the "PURCHASER"), and INTERPLAY ENTERTAINMENT CORP.,
a Delaware corporation (the "SELLER"). Purchaser and Seller are sometimes
referred to herein individually as a "PARTY" and collectively as the "PARTIES."
RECITALS:
A. On June 29, 2004, Seller and Purchaser entered into an Exclusive
Licensing Agreement, amended August 19, 2004 (as amended to date, the "EXCLUSIVE
LICENSING AGREEMENT"), whereby Purchaser acquired exclusive, worldwide,
perpetual unrestricted intellectual property rights in and to all future uses of
every kind to the brand and interactive entertainment software property known as
"FALLOUT" and to the "FALLOUT" trademark, to the extent expressly provided for
under the Exclusive Licensing Agreement. Through and as a result of the
Exclusive Licensing Agreement, Purchaser has the unfettered right, subject to
license royalties, to use and exploit the Fallout Intellectual Property (defined
below) and is prepared to purchase actual legal ownership of all right, title,
and interest in and to the Fallout Intellectual Property and in the other
Acquired Assets (defined below).
B. The Seller and Purchaser entered into arms' length negotiations for
the sale of the Fallout Intellectual Property which would eliminate risk to the
Seller concerning the timing and amount of any royalties, if any, to be paid in
the future under the Exclusive Licensing Agreement, and provide the Seller the
fair value of the Fallout Intellectual Property to the extent Purchaser does not
already effectively have it under the Exclusive Licensing Agreement, and would
eliminate Purchaser's potential future royalty obligations to the Seller.
C. On November 1, 2006, while the negotiations between the Seller and
Purchaser were ongoing, four petitioning creditors filed an involuntary
bankruptcy petition under Chapter 7 of Title 11 of the United States Bankruptcy
Code (the "BANKRUPTCY CODE") against Seller (the "INVOLUNTARY PETITION") in the
United States Bankruptcy Court for the Central District of California, Case No.
06-11994 TA (the "BANKRUPTCY CASE"), and on November 30, 2006, Seller answered
the Involuntary Petition in the Bankruptcy Case by filing an Answer of Alleged
Debtor To Involuntary Petition seeking to dismiss the Bankruptcy Case.
D. The Seller desires, based on the fair value of the Acquired Assets,
to monetize the benefit of its bargain with Purchaser under the Exclusive
Licensing Agreement by converting the possibility of contingent future payments
from Purchaser into certain amounts to be paid to the Seller by Purchaser as
provided in this Agreement. Seller recognizes the uncertainties of receiving
further advances and/or future game royalties under the Exclusive Licensing
Agreement, and Purchaser is willing to acquire from Seller, as permitted under
Sections 303(f) and 549(b) of the Bankruptcy Code, all right, title and interest
in such Acquired Assets, for the cash consideration described herein, which the
Parties agree represent the fair value of the Acquired Assets.
E. Purchaser and Seller enter into this Agreement in good faith and for
bona fide business reasons and purposes.
AGREEMENT:
NOW, THEREFORE, in consideration of the promises and mutual covenants
and agreements set forth in this Agreement, the receipt and sufficiency of which
are hereby acknowledged, the Parties agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used but not otherwise defined in this Agreement have
the respective meanings given thereto in EXHIBIT A to this Agreement.
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ARTICLE II
PURCHASE AND SALE; CLOSING
2.1 ACQUIRED ASSETS. Upon the terms and subject to the conditions of
this Agreement, and effective upon the Closing Date, (x) Seller hereby
irrevocably sells, assigns, transfers, conveys and delivers to Purchaser on the
Closing Date, and (y) Purchaser hereby purchases, acquires and accepts from
Seller, all of Seller's right, title and interest in and to all of the Acquired
Assets. As used herein, the term "ACQUIRED ASSETS" shall mean, collectively, the
Purchased Intellectual Property, the other Assets identified on PART 2.1 OF THE
DISCLOSURE SCHEDULE, and the Enforcement Rights.
2.2 ASSUMED LIABILITIES. Upon and subject to the terms, conditions,
representations, and warranties of Seller contained herein, and subject to
SECTION 2.3, Purchaser agrees, effective at the time of Closing, to assume only
the following liabilities (collectively, the "ASSUMED LIABILITIES"): all filing
fees for transferring ownership of the Fallout Intellectual Property arising and
accruing on and after the Closing and for maintaining and continuing to pursue
for Purchaser's benefit any registrations or applications relating to the
Fallout Intellectual Property.
2.3 EXCLUDED LIABILITIES. Notwithstanding any provision in this
Agreement or anything herein or otherwise to the contrary, Purchaser is assuming
only the Assumed Liabilities and is not assuming, nor will Purchaser be
obligated to pay, perform, or discharge any other liability or obligation of
Seller or any Affiliate of Seller or of any predecessor stockholder, or other
owner of all or part of Seller or any Affiliate of Seller (collectively, the
"SELLER GROUP"), of any kind or nature whatsoever, whether direct or indirect,
known or unknown, absolute or contingent, presently in existence or accrued, or
arising or asserted after the date hereof or on or after the Closing
(collectively, the "EXCLUDED LIABILITIES"). Any and all such other liabilities
and obligations shall be retained by and remain obligations and liabilities of
the Seller Group.
2.4 CLOSING. The consummation of the purchase and sale of the Acquired
Assets in accordance with this Agreement and the closing of the other
transactions provided for hereunder (the "CLOSING") shall take place at 10:30
a.m., local time, at the offices of DLA Piper US LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ on APRIL 6, 2007, or at such other later time and
place as the Parties shall agree in writing, subject in each case to
satisfaction or waiver by the Seller and Purchaser, as applicable, of the
conditions precedent to closing set forth in SECTION 6.1 and SECTION 6.2,
respectively. The actual date of the Closing shall be referred to as the
"CLOSING DATE" and the Closing shall be deemed effective as of 12:01 a.m. on the
Closing Date. The Parties hereby agree to deliver at the Closing such documents,
certificates of officers and other instruments as are set forth elsewhere in
this Agreement and as may reasonably be required to effect the transfer by the
Seller of the Acquired Assets to the Purchaser and to vest full title in and to
the Acquired Assets in Purchaser, free and clear of any and all Encumbrances.
All events which shall occur at the Closing shall be deemed to occur
simultaneously.
2.5 SELLER'S CLOSING DELIVERIES. At the Closing, Seller will deliver to
Purchaser (in addition to a duly executed copy of this Agreement, together with
all final exhibits, annexes, and schedules hereto) the following, with all
documents and instruments below to be duly executed by the Seller where
appropriate and notarized where indicated in the exhibits, annexes, or schedules
to this Agreement:
(a) the Trademark License Agreement, in the form attached
hereto as EXHIBIT B-1 (the "LICENSE BACK Agreement");
(b) the Special Rules System License Agreement, in the form
attached hereto as EXHIBIT B-2 (the "SPECIAL RULES LICENSE AGREEMENT");
(c) the ▇▇▇▇ of sale, in the form attached hereto as EXHIBIT
B-3 (the "▇▇▇▇ OF SALE");
(d) the instrument of assignment and assumption, in the form
attached hereto as EXHIBIT B-4 (the "INSTRUMENT OF ASSIGNMENT AND
ASSUMPTION");
(e) the applicable assignment agreements designated by the
Purchaser, in the forms attached hereto as EXHIBIT C-1 and EXHIBIT C-2
(the "ASSIGNMENTS"), respectively;
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(f) a power of attorney in the form attached hereto as EXHIBIT
C-3;
(g) all tangible embodiments of the Purchased Intellectual
Property, including, without limitation, the Software and Documentation
included in the Purchased Intellectual Property, but with respect to
Third Party Intellectual Property Rights only to the extent Seller has
the right in connection therewith to provide same;
(h) all other tangible and intangible property included in the
Purchased Intellectual Property, but with respect to Third Party
Intellectual Property Rights only to the extent Seller has the right in
connection therewith to provide same;
(i) an officer's and secretary's closing certificate in form
and substance acceptable to Purchaser;
(j) the Escrow Agreement, in the form attached hereto as
EXHIBIT D; and
(k) such other instruments, documents, certificates and
closing deliverables as Purchaser may reasonably request or may require
in connection with this Agreement and the transactions provided for
herein.
2.6 PURCHASER'S CLOSING DELIVERIES. At the Closing, Purchaser will
deliver to the Seller (in addition to a duly executed copy of this Agreement,
together with all final exhibits, annexes, and schedules hereto) the following,
with all documents and instruments below to be duly executed by the Purchaser
where appropriate and notarized where indicated in the annex, schedules, or
exhibits to this Agreement:
(a) the License Back Agreement;
(b) the Special Rules License Agreement;
(c) the ▇▇▇▇ of Sale;
(d) the Instrument of Assignment and Assumption;
(e) the Trademark Assignment Agreement;
(f) the Copyright Assignment Agreement;
(g) the Escrow Agreement; and
(h) the First Installment, payable upon the Closing under
SECTION 2.7 below.
2.7 PURCHASE PRICE. In addition to the Assumed Liabilities, the
purchase price for the Acquired Assets (together, the "PURCHASE PRICE") shall be
Five Million Seven Hundred Fifty Thousand and 00/100 Dollars ($5,750,000.00),
payable in three installments as provided herein, upon the terms and conditions
set forth in this Agreement and in reliance on the representations, warranties,
covenants and agreements of Seller. At the Closing, the Acquired Assets
automatically will be transferred to, and all right, title and interest therein
immediately vested in, the Purchaser.
(a) FIRST INSTALLMENT. The Purchaser shall deliver the sum of
TWO MILLION AND 00/100 DOLLARS ($2,000,000.00) of the Purchase Price
(the "FIRST INSTALLMENT") in immediately available U.S.
dollar-denominated funds by wire transfer as follows: (i) TWO HUNDRED
THOUSAND AND 00/100 DOLLARS ($200,000.00) to an account as specified on
the Payment Schedule attached hereto and (ii) ONE MILLION EIGHT HUNDRED
THOUSAND AND 00/L00 DOLLARS ($1,800,000.00) to a separate segregated
escrow account ("ESCROW ACCOUNT") established pursuant to the Escrow
Agreement (at EXHIBIT D), as specified in the PAYMENT SCHEDULE attached
hereto, with said funds to be used to obtain full and complete
releases, releases of liens, satisfactions of judgments or discharges
of liabilities (in the form of the releases attached to the Escrow
Agreement) as to all of the Encumbrances listed in PART 2.7(A) OF THE
DISCLOSURE SCHEDULE as promptly as practicable following the Closing
Date.
(b) SECOND INSTALLMENT. Upon entry by the court in the
Bankruptcy Case of a conditional order of dismissal in a form
reasonably satisfactory to the Purchaser ("CONDITIONAL ORDER"), the
Purchaser shall deliver the sum of TWO MILLION AND 00/100 DOLLARS
($2,000,000.00) of the Purchase Price the "SECOND INSTALLMENT") in
immediately available U.S. dollar-denominated funds by wire transfer to
the
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Escrow Account, with said funds to be used to satisfy the requirements
of the Conditional Order. In the event the Bankruptcy Case is not
dismissed pursuant to a final, non-appealable order (FINAL DISMISSAL
ORDER") within ninety (90) days from the date of issuance of the
Conditional Order, any funds remaining in the Escrow Account shall
thereafter be distributed only as directed by the court in the
Bankruptcy Case.
(c) THIRD INSTALLMENT. The balance of the Purchase Price in
the sum of ONE MILLION SEVEN HUNDRED AND FIFTY THOUSAND AND 00/100
DOLLARS ($1,750,000.00) shall be due, owing, and payable ninety (90)
days following issuance of a Final Dismissal Order ("THIRD INSTALLMENT
DATE") on condition that (i) the Seller provided written evidence,
reasonably satisfactory to Purchaser, that the Encumbrances listed in
PART 2.7(A) OF THE DISCLOSURE SCHEDULE have been released, satisfied or
discharged in full and releases of liens and satisfactions of judgments
have been filed with all applicable courts, Secretaries of State or
other entities, (ii) no new bankruptcy or insolvency proceedings
against Seller have been filed, (iii) no Encumbrances or challenges of
any kind exist or have arisen with respect to Purchaser's clear title
and ownership of the Acquired Assets, and (iv) the Seller then remains
in compliance with all of its covenants under this Agreement and all
related agreements. If such conditions are met to Purchaser's
satisfaction, then the Purchaser shall deliver ONE MILLION SEVEN
HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($1,750,000.00) in
immediately available U.S. dollar-denominated funds by wire transfer as
specified on the Payment Schedule attached hereto (the "THIRD
INSTALLMENT"). Whether or not the contingent Third Installment is
earned, paid or released, if at any time any Encumbrances or any
challenges to Purchaser's clear title and ownership of any of the
Acquired Assets arise after the Third Installment Date, the Seller
shall take immediate action to resolve and fully discharge and cause to
be released any and all such Encumbrances and/or challenges and ensure
to Purchaser's satisfaction that there are no Encumbrances on
Purchaser's clear title to and unencumbered ownership of the Acquired
Assets.
2.8 EXCLUSIVE LICENSING AGREEMENT. Effective automatically upon
Closing, Purchaser shall have no obligations to pay any consideration under the
Exclusive Licensing Agreement, and the Exclusive Licensing Agreement shall be
deemed superseded by this Agreement and in the event of a conflict of meaning,
the terms of this Agreement shall control; PROVIDED, HOWEVER, that if in
connection with or as the result of any bankruptcy proceeding or liquidation,
dissolution, or in connection with any other insolvency proceeding, fraudulent
conveyance claim, or other claim or action, any court, bankruptcy trustee, or
other applicable Person causes this Agreement and the transactions hereunder to
be voided, nullified, or otherwise unwound or overturned for any reason under
federal or state law, then notwithstanding anything herein or otherwise to the
contrary, (x) all of Purchaser's licenses, rights and other privileges under the
Exclusive Licensing Agreement automatically shall be reinstated and deemed for
all purposes to have remained in full force and effect and not to have been
superseded or otherwise impacted in any way by this Agreement, and (y) any and
all payments made under this Agreement automatically shall be deemed to be and
constitute royalty payments that may become due and payable to the Seller and
advance payments recoverable against and applied to any and all payment
obligations of Purchaser to the Seller in accordance with the Exclusive
Licensing Agreement. With respect to such advance payments, Purchaser shall be
deemed to be and constitute a secured creditor of the Seller and shall be
entitled to a first priority lien over all of the Fallout Intellectual Property
and entitled hereby to make such security interest filings under applicable
federal or state law (including but not limited to with the United States Patent
and Trademark Office and Copyright Office and with any and all corresponding or
similar bodies outside of the United States) with respect to all registered
Fallout Intellectual Property as it may deem necessary or appropriate to perfect
such security interests. Without limiting the foregoing, any obligation by the
Purchaser to pay royalties or any other monies under the Exclusive Licensing
Agreement if reinstated is void. To the fullest extent possible, the Seller
shall waive all claims to royalties or any other monies that ever may be due
under the Exclusive Licensing Agreement and hereby accepts the payments made
under this Agreement to constitute full payment of royalties or other monies due
thereunder.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to the Purchaser that, on and as of the Effective
Date and as of the Closing, the statements contained in sections 3.1 through
3.22 of this ARTICLE III are true and correct in all respects, except as set
forth in the Seller's Disclosure Schedule attached hereto (the "DISCLOSURE
SCHEDULE").
3.1 DUE INCORPORATION. Seller is a corporation duly organized, validly
existing and in good standing under the applicable laws of the State of
Delaware. Seller has all requisite corporate power and authority to own, lease
and operate its properties and to carry on and operate its business, operations,
and affairs as now conducted and to enter into this Agreement and all agreements
and instruments to be entered into or delivered under this Agreement by the
Seller (collectively, the "ANCILLARY AGREEMENTS") and to perform and discharge
its obligations hereunder and under all Ancillary Agreements. Seller is duly
licensed or qualified as a foreign corporation in good standing in the State of
California.
3.2 AUTHORITY; NO VIOLATION; BINDING OBLIGATION.
(a) All corporate actions necessary to authorize the execution
and delivery by Seller of this Agreement and the Ancillary Agreements
and the performance of its obligations hereunder and thereunder have
been duly taken.
(b) The execution, delivery, and performance of this Agreement
and the Ancillary Agreements and the performance of Seller's covenants
and agreements herein and therein contained do not and will not (i)
contravene or conflict with or constitute a violation of any provision
of applicable law binding upon or applicable to the ownership of the
Acquired Assets or the Seller's business; (ii) conflict with, result in
a breach of, constitute a default under or give rise to any right of
termination, cancellation or acceleration of any right or obligation of
Seller relating to the Acquired Assets or Assumed Liabilities or to a
loss of any benefit relating to the Acquired Assets or Assumed
Liabilities to which Seller is entitled under any provision of any
agreement, contract or other instrument or relating to any of the
Acquired Assets; (iii) result in the creation or imposition of any
Encumbrance on any Acquired Asset; or (iv) conflict with or violate any
provision of the articles of incorporation, bylaws, or other governing
documents of the Seller as in effect immediately prior to the Closing.
(c) This Agreement and each of the Ancillary Agreements are
legal, valid and binding obligations of Seller.
(d) Seller has not received any notice of non-compliance not
previously corrected with respect to the Acquired Assets under any
applicable law.
3.3 LITIGATION. Except for the Bankruptcy Case and Encumbrances
identified in PART 2.7(A) OF THE DISCLOSURE SCHEDULE, there are no Legal
Proceedings pending, or to the knowledge of the Seller, threatened against or
relating to the Seller in connection with this Agreement or any of the Acquired
Assets, whether at law, in equity, or before any governmental authority, nor is
there a basis for any of the foregoing. Seller is not, in connection with the
Acquired Assets, in default with respect to any judgment, injunction, order or
decree of any court or any governmental authority, instrumentality, or court by
which it or any of the Acquired Assets is bound or subject.
3.4 TITLE TO ACQUIRED ASSETS. Except for the Encumbrances identified in
PART 2.7(A) OF THE DISCLOSURE SCHEDULE, Seller has good and marketable title to
the Acquired Assets, free and clear of any Encumbrances, and at the Closing,
Purchaser will receive good and marketable title to the Acquired Assets, free
and clear of any Encumbrances, except for the Encumbrances identified in PART
2.7(A) OF THE DISCLOSURE SCHEDULE.
3.5 INSURANCE CLAIMS. There are no pending insurance claims for losses
related to the Acquired Assets.
3.6 OWNERSHIP. The Seller owns or otherwise has valid and legally
enforceable rights by license to use the Purchased Intellectual Property. The
Seller is the sole owner of all of the Purchased Intellectual Property.
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3.7 INBOUND LICENSES AND RIGHTS. Set forth in PART 3.7 OF THE
DISCLOSURE SCHEDULE is a list and brief description of all Third Party
Intellectual Property Rights used in connection with the Fallout Intellectual
Property as of the Closing Date, and identifies any licenses or other agreements
relating thereto, true, correct and complete copies of which licenses or other
agreements are annexed to PART 3.7 OF THE DISCLOSURE SCHEDULE. The Seller has
not breached any of the licenses or other agreements governing such Third Party
Intellectual Property Rights, and, to the knowledge of the Seller, no other
party to those agreements has breached those agreements. No Third Party
Intellectual Property of any kind or nature is as of the Closing Date or
historically has been used by the Seller in connection with the Fallout
Intellectual Property. No part of the Purchased Intellectual Property has been
placed in (or is otherwise subject to) any escrow arrangement of any kind for
the benefit of any third party.
3.8 NO RESTRICTIONS. Other than under the Exclusive Licensing Agreement
and the Encumbrances identified in PART 2.7(A) OF THE DISCLOSURE SCHEDULE, the
Purchased Intellectual Property is free of any and all royalty and other payment
obligations and other Claims or Encumbrances and, without limiting the
generality of the foregoing, is not subject to any limitations or restrictions
on Seller's use. There is no Legal Proceeding, order, agreement or other similar
arrangement that prohibits or restricts the Seller (x) from using the Purchased
Intellectual Property or developing, licensing, transferring or otherwise
exploiting any Software, properties, or other assets relating to the Fallout
Intellectual Property anywhere in the world or (y) from any use of the Purchased
Intellectual Property anywhere in the world (except that this representation is
made only to the Seller's knowledge with respect to Third Party Intellectual
Property Rights). No Person has any rights in the Fallout Intellectual Property
or in any of the other Purchased Intellectual Property that could cause any
reversion or renewal of rights in favor of that Person or termination of the
Seller's or, following the Closing, the Purchaser's rights in the Fallout
Intellectual Property or in any of the other Purchased Intellectual Property.
3.9 EFFECT OF CLOSING. Upon and after the Closing, the Purchaser will
be the sole owner of, and will have valid and marketable title to, the Purchased
Intellectual Property, and will have the full right to use, license and transfer
the Purchased Intellectual Property in the same manner and on the same terms
that the Seller had immediately prior to the Closing. The Seller is not legally
bound by any agreements or obligations under which the occurrence of the Closing
would (i) obligate the Seller or the Purchaser to license or otherwise grant
rights to any other Person in any Fallout Intellectual Property (in any case,
whether owned or used by the Seller or Purchaser), (ii) entitle any Person to a
release of any source code escrow, (iii) result in any Claim or other
Encumbrance on the Purchased Intellectual Property, (iv) give rise to any right
of any third party to terminate, or impair in any material manner, any Third
Party Intellectual Property Rights included in the Purchased Intellectual
Property or otherwise contravene or conflict with Purchaser's right to enjoy the
benefit of the Third Party Intellectual Property Rights, or (v) otherwise
increase any burdens or decrease any rights relating to the Fallout Intellectual
Property or any of the other Purchased Intellectual Property in any material
manner.
3.10 PERFECTION OF OWNERSHIP RIGHTS. With respect to the Fallout
Intellectual Property:
(a) ASSIGNMENTS. PART 3.10 OF THE DISCLOSURE SCHEDULE
separately lists all other written assignments, if any, Seller has
obtained to establish the Seller's ownership rights in the Fallout
Intellectual Property.
(b) EFFECT OF ASSIGNMENTS. In each case in which the Seller
has acquired ownership of any material Intellectual Property from any
Person, other than a license of the Third Party Intellectual Property
Rights, the Seller has obtained a valid and enforceable assignment
sufficient to irrevocably transfer the applicable rights in that
Intellectual Property to the Seller. If the Seller has so acquired
Registered Intellectual Property, the Seller has, when required by
applicable law, duly recorded each of these assignments with the
appropriate governmental agency, and listed these assignments in PART
3.10(B) OF THE DISCLOSURE SCHEDULE.
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3.11 REGISTERED INTELLECTUAL PROPERTY. PART 3.11 OF THE DISCLOSURE
SCHEDULE separately lists (x) all Registered Intellectual Property included
within the Purchased Intellectual Property, as well as (y) certain additional
Fallout Intellectual Property.
(a) FEES AND APPLICATIONS. All necessary registration,
maintenance, renewal, and annuity fees and taxes due as of the Closing
Date, have been paid, and all necessary documents have been filed, in
connection with the Registered Intellectual Property. In connection
with the Registered Intellectual Property, all registrations are in
force and all applications for the same are pending in good standing,
and no actions for reissuance, reexamination or opposition are pending
or threatened with respect to any issued registrations or pending
applications.
(b) LIST OF MAINTENANCE ACTIONS. PART 3.11(B) OF THE
DISCLOSURE SCHEDULE accurately and completely lists all actions that,
as of the Closing Date, must be taken within ninety (90) days after the
date of this Agreement relating to the payment of any fees or taxes or
the filing of any documents necessary or appropriate to maintain,
perfect or renew any Registered Intellectual Property with an official
office (e.g., patent or trademark office).
3.12 VALIDITY. All registered copyrights, trademarks, and service marks
(and all applications related to any of the foregoing) included in the Fallout
Intellectual Property are subsisting and valid under applicable law for those
respective categories of Intellectual Property. There are no facts or
circumstances that would render any of the Purchased Intellectual Property
invalid or unenforceable, except that with respect to the Third Party
Intellectual Property, this representation is made only to the Seller's
knowledge.
3.13 OUTBOUND LICENSES AND RIGHTS. PART 3.13 OF THE DISCLOSURE SCHEDULE
lists all agreements, if any, under which the Seller has licensed or otherwise
granted rights in any of the Purchased Intellectual Property to any Person. PART
3.13 OF THE DISCLOSURE SCHEDULE also lists separately any of the following
related to the Fallout Intellectual Property: (i) any exclusive rights granted
to any third Person; (ii) any source code escrow or other form of delivery or
disclosure of any source code to or for the benefit of any Person; or (iii) any
other agreements to which Seller is a party that give other Persons the right to
use, market or otherwise exploit or commercialize any of the Fallout
Intellectual Property or related products or services.
3.14 INDEMNITY AGREEMENTS. The Seller has not agreed to indemnify,
defend or otherwise hold harmless any other Person with respect to Damages
resulting or arising from any of the Purchased Intellectual Property, except
under those agreements summarized or described in PART 3.14 OF THE DISCLOSURE
SCHEDULE.
3.15 NO VIOLATION OF THE SELLER'S RIGHTS. To the knowledge of the
Seller, no Person has infringed or misappropriated any of the Fallout
Intellectual Property, except for fan websites, blogs and other sites
referencing nominally one of the FALLOUT games without the consent of Seller.
Immediately after the Closing (subject to making any filings necessary to
perfect rights), the Purchaser will have sole rights to bring actions for
infringement or misappropriation of the Fallout Intellectual Property. The
Seller has not commenced or threatened any Legal Proceeding, or asserted any
allegation or claim, against any Person for infringement or misappropriation of
the Purchased Intellectual Property or breach of any agreement involving the
Purchased Intellectual Property, except as indicated in PART 3.15 OF THE
DISCLOSURE SCHEDULE.
3.16 NO VIOLATION OF THIRD PARTY RIGHTS. The Seller's creation, use,
sale, license, or other transfer of the Purchased Intellectual Property does not
infringe or misappropriate any other Person's Intellectual Property and, to the
Seller's knowledge, after the Closing, Purchaser's use of the Purchased
Intellectual Property (including, without limitation, the development, license,
transfer, or other exploitation of any Software, properties, or other assets
relating to the Fallout Intellectual Property anywhere in the world) will not
infringement or misappropriate any other Person's Intellectual Property. The
Seller has not received notice (in writing or otherwise) of any pending or
threatened Legal Proceeding or any written allegation or claim in which any
Person alleges that the Seller, any of the Purchased Intellectual Property, or
any use, sale, license, transfer, development, or other exploitation thereof has
violated any Person's Intellectual Property rights and, to Seller's knowledge,
no basis for any such actual or threatened Legal Proceeding, claim or allegation
exists. There are no pending or threatened disputes between the Seller and
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any other Person relating to the Purchased Intellectual Property.
3.17 PROPRIETARY INFORMATION AND CONFIDENTIALITY. The Seller has taken
commercially reasonable and appropriate steps to protect and preserve its trade
secrets and all other confidential information included in or relevant to the
Purchased Intellectual Property. To the Seller's knowledge, none of its (or any
Affiliate's) current or former employees, consultants, independent contractors,
or other agents have any rights in or to the Fallout Intellectual Property.
3.18 NO SPECIAL ADVERSE CIRCUMSTANCES. None of the Fallout Intellectual
Property was developed using any government or university funding or facilities,
nor was it obtained from a governmental entity or university. The Seller is not
a member of, and is not obligated to license or disclose any Intellectual
Property to, any official or de facto standards setting or similar organization
or to any organization's members. None of the Fallout Intellectual Property (or
any of the other Purchased Intellectual Property embedded or contained in or
linking to any of the Fallout Intellectual Property includes any Software of the
type commonly referred to as "open source software," "freeware" or "shareware,"
or that is subject to any form of "GNU," "Mozilla," or other public license or
open source license, rights or other obligations.
3.19 NO BROKERS OR FINDERS. No person, firm or corporation has or will
have as a result of any action of Seller or Seller's officers, employees, agents
or representatives, any right, interest or valid claim for any commission, fee
or other compensation as a finder or broker, or for acting in any similar
capacity in connection with this Agreement or any of the transactions provided
for herein or in any of the Ancillary Agreements.
3.20 ACCURACY OF MATERIAL FACTS. No representation, warranty or
covenant of Seller contained in this Agreement or in any of the Ancillary
Agreements, or the attached exhibits, annexes, or schedules or in any
certificate furnished or to be furnished to Purchaser pursuant to this Agreement
or any of the Ancillary Agreements or in connection with the transactions
contemplated hereby or thereby, when read together, contains any untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements contained herein and therein, taken as a whole, not
misleading in light of the circumstances under which such statements were made.
3.21 INTENT. The transactions provided for herein are being undertaken in good
faith and are not being undertaken with any intent to hinder, delay, defraud, or
mislead any past, present, or future creditors of the Seller. The Purchase Price
for the Acquired Assets represents fair value and was negotiated at arms' length
between the Seller and Purchaser.
3.22 RELIANCE. The foregoing representations and warranties are made by
the Seller with the knowledge and expectation that Purchaser is materially
relying thereon in connection with the transactions provided for in this
Agreement, including, without limitation, the purchase of the Acquired Assets.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to the Seller that, on and as of the Effective
Date and as of the Closing, the statements contained in section 3.23 of this
ARTICLE III are true and correct in all respects.
3.23 AUTHORITY; NO VIOLATION; BINDING OBLIGATION.
(a) All corporate actions necessary to authorize the execution
and delivery by Purchaser of this Agreement and the Ancillary
Agreements and the performance of its obligations hereunder and
thereunder have been duly taken.
(b) The execution, delivery, and performance of this Agreement
and the Ancillary Agreements and the performance of Purchaser's
covenants and agreements herein and therein contained do not and will
not conflict with or violate any provision of the articles of
incorporation, bylaws, or other governing documents of the Purchaser as
in effect immediately prior to the Closing.
(c) This Agreement and each of the Ancillary Agreements are
legal, valid and binding obligations of Purchaser.
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ARTICLE IV
INDEMNIFICATION AND SURVIVAL
4.1 SURVIVAL OF OBLIGATIONS. All representations, warranties,
covenants, and obligations of the Parties contained in this Agreement or in any
of the Ancillary Agreements shall, except as otherwise expressly set forth
elsewhere in this Agreement or in any of the Ancillary Agreements, remain in
full force and effect following the Closing Date.
4.2 INDEMNIFICATION.
(a) The Seller agrees to indemnify, defend and hold harmless
the Purchaser and all of the Purchaser's Affiliates, and each of their
respective parents, stockholders, members, directors, officers, agents
and employees (collectively, the "INDEMNITEES") from and against any
action brought against any of the Indemnitees with respect to any
claim, demand, cause of action, Liability, Claim or Encumbrance,
including, without limitation, reasonable attorneys' fees
(collectively, "LOSSES"), to the extent (x) such Losses are based upon,
connected with, or arise out of (x) any actual or alleged breach,
violation, or contravention of, or inaccuracy in, in each case as
applicable, any of the Seller's representations, warranties, covenants,
agreements, or undertakings in or under this Agreement, any of the
Ancillary Agreements, or any certificate, exhibit, annex, or schedule;
or (y) any Excluded Liabilities.
(b) With respect to the Seller's indemnification obligations
hereunder, each party agrees to: (i) give the other party prompt
written notice of any claim, action, suit or proceeding for which the
first party is seeking indemnity; and (ii) reasonably cooperate with
the other party with respect to the defense of the action. A party may
participate, at its own cost, in the defense and settlement of such
action through counsel of its choice. In no event may the Seller settle
any such action in a manner that adversely affects the rights of
Purchaser or any of the Indemnitees, without Purchaser's express prior
written consent.
(c) No Indemnitee (other than the Purchaser) may make any
claim for indemnification hereunder without the prior approval of the
Purchaser, in its sole discretion. The representations, warranties,
covenants, and obligations of the Seller on the one hand, and the
rights and remedies (including the indemnification and other remedies
described in this ARTICLE IV) of, or that may be exercised by, any
Indemnitee on the other hand, will not be limited or otherwise affected
by or as a result of, any information furnished to, or any
investigation made by or knowledge of, such Indemnitee or any
Indemnitee's representatives or agents. The indemnification remedies
(and all other remedies available to Purchaser and the Indemnitees at
law or in equity) contained in this Agreement shall be non-exclusive.
(d) In addition to any rights of offset or setoff that
Purchaser may have at common law or otherwise, any indemnification
obligations hereunder of the Seller to Purchaser or any other
Indemnitee may, in the sole discretion of Purchaser, be offset or
setoff by Purchaser against (x) any other amount otherwise payable to
the Seller or any of the Seller's Affiliates by Purchaser under this
Agreement, any Ancillary Agreement, or any other agreement between the
Seller and Purchaser or (y) any other monetary obligation of Purchaser
to the Seller or any of the Seller's Affiliates.
ARTICLE V
COVENANTS
5.1 FURTHER ASSURANCES. In addition to the Seller's obligations
elsewhere herein, following the Closing, the Seller, without further
consideration of any kind, shall execute and deliver, or cause to be executed
and delivered, such other instruments, and take, or cause to be taken, such
other action, as shall reasonably be requested by Purchaser or its Affiliates to
effectively carry out the other terms and provisions of this Agreement
benefiting the Purchaser including, without limitation, all instruments and
actions necessary to remove, satisfy, discharge and release any Encumbrances or
challenges relating to the Acquired Assets as required in this Agreement and to
ensure that Purchaser has clear title to and unencumbered ownership of all the
Acquired Assets. Seller shall use its best efforts to assist Purchaser and
Purchaser's Affiliates in effecting a smooth transition in ownership and
operation of the Acquired Assets after the Closing Date, without any obligation
by Seller to make payments to any party in connection with providing such
assistance.
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5.2 TRANSITIONAL MAINTENANCE OF ASSETS. To provide an appropriate
transition period for Purchaser to assume responsibility for maintenance of the
Purchased Intellectual Property, Seller represents and warrants that all
official office actions (E.G., copyright, patent, or trademark offices) due
(without payment of extension fees) within 30 days of the Closing Date, of which
Seller is aware, including, without limitation, paying maintenance fees or
annuities and responding to office actions and other correspondence from any
applicable official office (E.G., copyright, patent, or trademark offices), have
been completed and filed (including payment of all applicable fees) as of the
Closing Date.
5.3 REGISTERED INTELLECTUAL PROPERTY. Seller will provide to Purchaser
within a reasonable time following a request therefor (but in any event not
later than 30 days following the Closing Date, unless otherwise agreed),
Seller's complete files (in any format or media now existing) for the Registered
Intellectual Property and any other relevant documents, if any, in Seller's
possession that relate to obtaining or maintaining any of the Purchased
Intellectual Property.
5.4 ASSIGNMENT OF RIGHTS UNDER EMPLOYEE AGREEMENTS. In order to protect
Purchaser's interest in the Acquired Assets and under this Agreement and the
Ancillary Agreements, Seller hereby (x) sells, assigns, transfers and conveys to
Purchaser all rights of Seller under and to enforce the terms of any and all
third party confidentiality undertakings and any and all IP assignment
obligations, solely as they relate to or are connected with the Acquired Assets
or the Purchased Intellectual Property, and (y) agrees to assist Purchaser in
any reasonable efforts to enforce such agreements, obligations, arrangements.
5.5 TRANSFER TAXES. All excise, sales, value added, use, registration,
stamp, documentary, transfer and similar Taxes, levies, charges and fees
(including all real estate transfer Taxes) incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid solely by
Seller. Seller shall also be solely responsible for the filing of any Tax
returns with respect to such transfer and similar Taxes, and promptly shall
provide written evidence of such payments and copies of all such filings to
Purchaser.
5.6 HOLD HARMLESS. Seller covenants and agrees that it will (and that
it will cause the other members of the Seller Group to) promptly pay and
discharge, as they become due and payable, and promptly perform in accordance
with their respective terms, all and each of the Excluded Liabilities, it being
expressly understood and agreed that Purchaser is assuming no liabilities or
obligations of Seller or other members of the Seller Group other than the
Assumed Liabilities identified herein and in the Instrument of Assignment and
Assumption.
5.7 CONFIRMING EFFECTIVE DELIVERY OF THE PURCHASED INTELLECTUAL
PROPERTY. Without limitation to the Seller's obligations under SECTION 5.1,
promptly after being requested to do so by the Purchaser either in preparation
for the Closing (in which case the Purchaser agrees to hold items delivered by
the Seller solely for delivery pursuant to the Closing or return them to the
Seller if the Closing does not occur) or after the Closing, or both, the Seller
will:
(a) TITLE. Sign and deliver and have notarized all documents
and instruments, and take all other actions required by this Agreement,
for the purpose of (i) correcting or confirming title to the Purchased
Intellectual Property prior to the Closing in the name of the Seller,
and/or (ii) enabling the Purchaser to file applications or
registrations on and after the Closing in the name of the Purchaser or
Affiliates of the Purchaser with any governmental agency relating to
the Purchased Intellectual Property;
(b) INTERIM FEES AND FILINGS. For period of 30 days after the
Closing Date, take all actions, if any, requested by the Purchaser
without being liable for the payment of any fees to any governmental
agency, filing or maintenance of applications or registrations, or
other actions before or with any governmental agency concerning
Registered Intellectual Property or other Purchased Intellectual
Property for any actions that are within the scope of SECTION 5.1.
5.8 CONFIDENTIALITY. The Seller will keep confidential and not,
directly or indirectly, disclose to anyone or use or misappropriate for the
Seller's own benefit or for the benefit or any other person, (a) all
11
trade secrets and other non-public information or documents included within or
relating to the Purchased Intellectual Property, and (b) any non-public
information about the Purchaser that the Seller or its representatives may
obtain or may have obtained in the course of the transactions contemplated by
this Agreement. The Seller agrees not to make any such information public or
otherwise act or omit to act in a manner that would reasonably be expected to
impair in any material respect the intended benefits of this covenant to the
Purchaser. This covenant is in addition to, and does not limit, the rights of
the Purchaser as the purchaser and owner of the Purchased Intellectual Property
as of the Closing Date. Notwithstanding the foregoing, this SECTION 5.8 shall
not restrict Seller from maintaining any records or making any disclosures that
may be required and mandated by applicable law or governmental authority,
provided, however, that prior to making any such disclosures, the Seller will
provide reasonable advance notice to Purchaser so as to permit Purchaser to
review the proposed form and contents of such disclosure and, to the extent
deemed appropriate by Purchaser, to allow Purchaser to seek an appropriate
protective order to prevent or limit such disclosure. Notwithstanding the
foregoing, this Agreement may be described in or filed with any required federal
securities filings of Seller.
5.9 PROHIBITION ON FUTURE FILINGS AND REGISTRATIONS. Nothing contained
in this Agreement shall be construed as providing the Seller with any retained
right, title, or other interest of any kind in or to any of the Acquired Assets.
Seller recognizes and acknowledges that the Purchased Intellectual Property and
all rights therein and all goodwill pertaining thereto solely and exclusively
belong to Purchaser effective automatically upon the Closing and that all uses
of the Purchased Intellectual Property shall inure to the benefit of Purchaser.
In addition to its obligations under and of the Ancillary Agreements or under
any other agreements, Seller agrees (x) not to directly or indirectly attack or
impair the title of Purchaser to the any of the Purchased Intellectual Property,
the validity of this Agreement, or any of Purchaser's current or future
registrations or applications relating to any of the Purchased Intellectual
Property (or any derivates thereof) in any jurisdiction; and (y) not to file any
state, federal, or foreign applications to register (1) any of the Purchased
Intellectual Property constituting trademarks, trade names, service marks,
copyrights, or the like, in whole or in part, or (2) any confusingly similar
trademarks, trade names, service marks, copyrights, or the like, in any
jurisdiction.
5.10 MERCHANDISING RIGHTS. From and after the Closing, Purchaser
authorizes Seller to exclusively manufacture, have manufactured, sell and
distribute the pre-existing Fallout interactive entertainment software games,
"FALLOUT", "FALLOUT 2", "FALLOUT TACTICS", and "BROTHERHOOD OF STEEL"
("PRE-EXISTING FALLOUT GAMES"), and Purchaser shall have no financial interest
in the sales of such Pre-existing Fallout Games by or on behalf of Seller. All
packaging, advertising and promotional materials used by or on behalf of Seller
in connection with the Pre-existing Fallout Games shall be submitted by Seller
to Purchaser for Purchaser's written approval prior to its use, and Seller shall
not use or authorize the use of any such packaging, advertising or promotional
material unless Purchaser has approved in writing in advance such material, such
approval not to be unreasonably withheld, it being understood and agreed that
all packaging, advertising and promotional materials for the Pre-Existing
Fallout Games shall not use, refer to, trade upon, reflect the look and feel of
or otherwise exploit any of the Fallout games or products, including but not
limited to their packaging, advertising and promotional materials, developed by
or for the Purchaser or its licensees.
5.11 MOTION TO DISMISS BANKRUPTCY CASE. The Seller shall file the
motion to dismiss the Bankruptcy Case referenced in section 2.7 on or before May
1, 2007.
5.12 PART 3.13 DISCLOSURE SCHEDULE. If Purchaser is not satisfied with
the disclosures made in Part 3.13 of the Disclosure Schedule by the Closing
Date, Purchaser shall be entitled to void this Agreement and shall not be
required to proceed with the Closing.
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ARTICLE VI
GENERAL PROVISIONS
6.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER. The obligations
of Purchaser to consummate the Closing are subject to the following express
conditions precedent (all or any of which may be waived in whole or in part by
Purchaser in its sole discretion), having been fulfilled on or before the
Closing Date:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Seller contained herein shall be true and correct in all
respects on and as of the Closing Date.
(b) PERFORMANCE; DELIVERIES. Seller shall have performed and
observed in all respects all covenants, obligations and conditions
herein required to be performed or observed by Seller on or prior to
the Closing Date; and Seller shall have delivered to Purchaser all
deliveries described, set forth or provided for SECTION 2.5.
(c) ABSENCE OF MATERIAL CHANGES. There shall not have been any
material adverse change affecting Seller or its business or any of the
Acquired Assets.
(d) NO LITIGATION. No Legal Proceeding or Claim or other
proceeding or investigation, whether administrative or judicial, shall
be threatened or pending against Seller or Purchaser that, in the
reasonable opinion of Purchaser or its counsel, presents a reasonable
possibility that the transactions contemplated by this Agreement could
be enjoined or prevented, or that the right of Purchaser to acquire,
retain or use all of the Acquired Assets, if and when the same are
acquired, without additional costs would be adversely affected
6.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER. The obligations
of the Seller to consummate the Closing hereunder are subject to the following
express condition precedent (all or any of which may be waived in whole or in
part by the Seller in its sole discretion), having been fulfilled on or before
the Closing Date: Purchaser shall have performed and observed in all material
respects all covenants, obligations and conditions herein required to be
performed or observed by Seller on or prior to the Closing Date; and Purchaser
shall have delivered to Seller all deliveries provided for SECTION 2.6,
PROVIDED, HOWEVER, that the Purchase Price shall be deliverable upon and not
prior to the Closing.
ARTICLE VII
GENERAL PROVISIONS
7.1 SURVIVAL OF OBLIGATIONS. All representations, warranties,
covenants, and obligations of the Parties contained in this Agreement or in any
of the Ancillary Agreements shall, except as otherwise expressly set forth
elsewhere in this Agreement, remain in full force and effect for five years
following the Closing Date.
7.2 GOVERNING LAW; JURISDICTION; VENUE. This Agreement shall be
governed by and construed in accordance with the substantive laws of the State
of Delaware, USA, without regard to principles of conflict of laws. Each party
agrees that sole and exclusive jurisdiction and venue for any action or
litigation arising from or relating to this Agreement shall be an appropriate
federal or state court located in the State of Maryland. The U.N. Convention on
Contracts for the International Sale of Goods shall not apply to this Agreement
or to any dispute arising out of this Agreement.
7.3 ALL AMENDMENTS IN WRITING. No supplement, modification, or
amendment of this Agreement shall be binding, unless executed in writing by a
duly authorized representative of each party to this Agreement intended to be
bound thereby.
7.4 ENTIRE AGREEMENT. This Agreement (including the exhibits, annexes,
and schedules hereto and other documents referred to herein as having been
delivered or furnished by either party to the other hereunder) constitutes the
entire Agreement and supersedes all prior agreements and understandings, oral
and written, between the parties hereto with respect to the subject matter
hereof.
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7.5 ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. Purchaser may freely
assign any of its rights or delegate or novate any of its obligations under this
Agreement to any Affiliate or to any third party without the prior consent of
Seller. Seller may not assign this Agreement or any of its rights or obligations
under this Agreement without the prior written consent of Purchaser. Nothing in
this Agreement, expressed or implied, is intended or will be construed to confer
upon any Person other than the Parties and their respective successors and
assigns permitted by this SECTION 7.5 any right, remedy or claim under or by
reason of this Agreement.
7.6 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
expressly acknowledge and agree that the Acquired Assets are special and unique
and that a breach of any of the terms or provisions of this Agreement in respect
to the sale and purchase thereof will result in irreparable injury for which
there is no adequate remedy at law, and therefore, notwithstanding anything
herein or otherwise to the contrary, Purchaser shall be entitled to equitable
relief and specific performance to compel compliance hereunder, without the
requirement for posting any bond or security.
7.7 WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
7.8 NOTICES. All notices and other communications required or permitted
to be given under this Agreement shall be in writing and delivered by overnight
courier or by confirmed facsimile during the regular business hours of the
recipient to the addresses or facsimile numbers set forth below or to such other
addresses specified by the applicable party:
If to Purchaser: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
Bethesda Softworks LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Executive Vice President
-Legal ZeniMax Media Inc. ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
If to the Seller: Herve Caen, Chief Executive Officer
Interplay Entertainment Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
7.9 EXPENSES. Except where otherwise expressly provided for in this
Agreement, each Party hereto shall pay its own costs and expenses, including,
without limitation, the fees and expenses of its respective attorneys and
accountants, in connection with this Agreement and the transactions contemplated
herein, whether or not the Closing takes place.
7.10 WAIVER. Any term or provision of this Agreement may be waived, or
the time for its performance may be extended, by the Party or Parties entitled
to the benefit thereof. Any such waiver will be validly and sufficiently
authorized for the purposes of this Agreement if, as to any Party, it is
authorized in writing by an authorized representative of such Party. The failure
of any Party hereto to enforce at any time any provision of this Agreement will
not be construed to be a waiver of such provision, nor in any way to affect the
validity of this Agreement or any part hereof or the right of any Party
thereafter to enforce each and every such provision. No waiver of any breach of
this Agreement will be held to constitute a waiver of any other or subsequent
breach.
14
7.11 ENTIRE AGREEMENT. The parties have read this Agreement, together
with the Ancillary Agreements and all exhibits, annexes, and schedules hereto
(collectively, the "TRANSACTION AGREEMENTS"), and further agree that they
collectively constitute the complete and entire agreement of the Parties
relating to the sale, assignment, transfer, conveyance and delivery of the
Acquired Assets (including, without limitation, the Purchased Intellectual
Property) from the Seller to Purchaser, and supersede all and merge all previous
communications, agreements, understandings or letters of intent (in each case,
oral or written) between or among any of the Parties hereto regarding the
subject matter hereof. No representations, warranties, statements,
understandings, agreements, or commitments of any kind made by any Party that
are not expressly stated herein (or in any other Transaction Agreements) shall
be binding on such Party.
7.12 SEVERABILITY. In the event that any provision of this Agreement is
held invalid by a court with jurisdiction over the parties, such provision shall
be deemed to be restated to be enforceable, in a manner which reflects, as
nearly as possible, the original intentions of the parties in accordance with
applicable law. The remainder of this Agreement shall remain in full force and
effect.
7.13 CONSTRUCTION; INTERPRETATION.
(a) HEADINGS. Titles, captions, and other headings to sections
in this Agreement have been inserted for convenience of reference only
and are not intended to be a part of or to affect in any way the
meaning, construction, or interpretation of this Agreement.
(b) EXHIBITS; ANNEXES; SCHEDULES. This Agreement is deemed to
include all of the exhibits, annexes, and schedules hereto, which
expressly are made a part hereof and incorporated herein and will be
construed with and as an integral part of this Agreement to the same
extent as if they were set forth verbatim herein. Except as otherwise
indicated, all references in this Agreement to "Sections," "Schedules,"
"Annexes," and "Exhibits" are intended to refer to Sections, Schedules,
Annexes, and Exhibits to this Agreement.
(c) GENDER AND NUMBER. For the purpose of this Agreement,
whenever the context requires or permits: the singular number shall
include the plural, and vice versa; the masculine gender shall include
the feminine and neuter genders; the feminine gender shall include the
masculine and neuter genders; and the neuter gender shall include the
masculine and feminine genders. As used in the Agreement, the words
"include" and "including," and variations thereof, shall not be deemed
to be terms of limitation, but rather shall be deemed to be followed by
the words "without limitation."
(d) MUTUAL DRAFTING. The Parties hereto agree that any rule of
construction to the effect that ambiguities are to be resolved against
the drafting party shall not be applied in the construction or
interpretation of this Agreement, it being agreed that all Parties
participated jointly and equally in the drafting hereof.
7.14 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, including facsimile counterparts, each of which will be considered
an original instrument, but all of which will be considered one and the same
agreement, and will become binding when one or more counterparts have been
signed by each of the Parties hereto and delivered to each of the Parties.
* * * * *
15
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
ASSET PURCHASE AGREEMENT with legal and binding effect as of the date and year
first above written.
PURCHASER: BETHESDA SOFTWORKS LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Printed Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
SELLER: INTERPLAY ENTERTAINMENT CORP.
By: /s/ Herve Caen
----------------------------------------
Printed Name: Herve Caen
Title: Chief Executive Officer
16
EXHIBIT A
CERTAIN DEFINED TERMS
An "AFFILIATE" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with such first
Person within the meaning of the Securities Exchange Act of 1934, as amended.
"AFFILIATE" means
"CLAIM" means any claim, security interest, encumbrance, lien,
mortgage, indenture, security agreement, pledge, charge, escrow, option, right
of first refusal, judgment, order or other Liability or restriction of any kind
(whether arising by contract or by operation of law).
"COMMERCIALLY AVAILABLE TECHNOLOGY" means third party technologies,
products and services that are commercially available, including without
limitation, software that is subject to "shrinkwrap", "clickwrap", "open source"
or other standard or mass market license agreements.
"DAMAGES" means any loss, damage, injury, Liability, claim, demand,
settlement, judgment, award, fine, penalty, tax, fee (including, without
limitation, fees and expenses of attorneys, accountants, financial advisors and
other experts and other expenses of litigation), charge, costs (including
reasonable costs of investigation) or expenses of any nature.
"DOCUMENTATION" means, as applicable, product, technical, repair,
marketing and user documentation and any succeeding changes thereto as of the
Closing Date, including, without limitation, all specifications as set forth in
Seller's product manuals; installation, maintenance, operating and customer or
end-user manuals, instructions and diagnostics; system administrative materials,
configuration guides, marketing and sales brochures and literature, and product
guides and any similar or related documentation. When used to in connection with
the term Software the term "Documentation" means, as applicable, programming and
user documentation, maintenance and test specification, system descriptions and
other similar documentation relating to the creation, use or operation of the
Software.
"ENCUMBRANCE" means any lien (including, without limitation, any tax,
mechanic's, warehouseman's, laborer's, or landlord's liens), mortgage, claim,
pledge, charge, security interest, equitable interest, right of use, right of
co-existence, encumbrance, defects, claims, or conditions to or restrictions on
use, transfer or assignment, or any other restrictions of any kind.
"ENFORCEMENT RIGHTS" means any and all claims, demands, rights, and
causes of action for infringement, misappropriation, or misuse of any of the
Purchased Intellectual Property, past, present and future, and any and all of
the proceeds and rights to proceeds from the foregoing, in each case whether
existing, accrued, or unpaid or whether hereafter arising, coming into
existence, or accruing.
"FALLOUT INTELLECTUAL PROPERTY" means any and all Intellectual Property
in or relating or connected in any way with (and to all future uses of every
kind) the brand and interactive entertainment software game property known as
"FALLOUT". Without limiting the generality of the foregoing, the term Fallout
Intellectual Property includes, without limitation, the "FALLOUT" trademark for
all classes and uses worldwide, any and all rights to any and all "FALLOUT"
video games, all "FALLOUT"-related characters, and all uses of all "FALLOUT"
connected or related trademarks and brand (subject only to licensing rights
granted under the License Back Agreement), and including, without limitation,
the rights to all add-ons, expansion packs and combinations of same, however
packaged or sold, hint books and strategy guides, and any prequels, sequels, or
derivative products of any of the foregoing, and any and all rights to the
"FALLOUT" brand, including, without limitation, to merchandising and
sublicensing rights.
"INTELLECTUAL PROPERTY" means all of the following anywhere in the
world and all legal rights, title, or interest in the following arising under
the laws of the United States, (including any state), and any other country
(including any subdivision thereof), or international treaty regime, whether or
not filed, perfected, registered or recorded and whether now or later existing,
filed, issued or acquired, including all renewals:
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(i) all patents and applications for patents of all classes
and types and all related reissues, reexaminations, divisions,
renewals, extensions, provisionals, continuations and continuations in
part;
(ii) all copyrights, copyright registrations and copyright
applications, copyrightable works, and all other corresponding rights;
(iii) all trade dress and trade names, logos, Internet
addresses and domain names, trademarks and service marks (including,
without limitation, any common law or prior use rights that may exist
with respect related to any of the foregoing) and related registrations
and applications, including any intent to use applications,
supplemental registrations and any renewals or extensions, all other
indicia of commercial source or origin, and all goodwill of the
Seller's business associated with any of the foregoing;
(iv) all inventions (whether patentable or not and whether or
not reduced to practice), invention disclosures, invention notebooks,
file histories, know how, technology, technical data, trade secrets,
confidential business information, manufacturing and production
processes and techniques, research and development information,
financial, marketing and business data, pricing and cost information,
business and marketing plans, and customer, distributor, reseller and
supplier lists and information, correspondence, records, and other
documentation, and other proprietary information of every kind;
(vii) all Software;
(viii) all databases and data collections and all rights in
the same;
(ix) all rights of paternity, integrity, disclosure, and
withdrawal, and any other rights that may be known or referred to as
"moral rights," in any of the foregoing;
(x) any rights analogous to those set forth in the preceding
clauses and any other proprietary rights relating to intangible
property;
(xi) all tangible embodiments of any of the foregoing, in any
form and in any media, in the possession of the Seller (or other
Persons engaged or retained by the Seller);
(xii) all versions, releases, upgrades, derivatives,
enhancements and improvements of any of the foregoing; and
(xiii) all statutory, contractual and other claims, demands,
and causes of action for royalties, fees, or other income from, or
infringement, misappropriation or violation of, any of the foregoing,
and all of the proceeds from the foregoing that are accrued and unpaid
as of, and/or accruing after, the date of this Agreement.
."LEGAL PROCEEDING" means any action, suit, litigation, arbitration
proceeding (including any civil, criminal, administrative, investigative or
appellate proceeding), hearing, inquiry, audit, examination or investigation
threatened, commenced, brought, conducted or heard by or before, or otherwise
involving any court or other governmental agency or any arbitrator or
arbitration panel.
"LIABILITY" means any liability, loss, debt, or obligation of any kind
(whether known or unknown, whether asserted or unasserted, whether absolute or
contingent, whether accrued or unaccrued, whether liquidated or unliquidated,
and whether due or to become due).
"PERSON" means any individual, corporation, partnership, limited
liability company, trust, other form of business or investment entity, and any
foreign, federal, state or local government or governmental agency of any kind.
"PURCHASED INTELLECTUAL PROPERTY" means, collectively: (x) all of the
Fallout Intellectual Property owned by, created by, or licensed by or to the
Seller, as existing as of the Closing Date, and (y) all of the Third Party
Intellectual Property Rights.
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"REGISTERED INTELLECTUAL PROPERTY" means Fallout Intellectual Property
that is the subject of an application, certificate, filing, registration or
other document issued by, filed with, or recorded by any governmental or
quasi-governmental agency or non-governmental registrar (whether provisional,
supplemental, or otherwise), anywhere in the world as of the Closing Date.
"SOFTWARE" means computer software programs and software systems,
including, without limitation, SOFTWARE compilations, software implementations
of algorithms, software tool sets, firmware, development tools, files,
compilers, and software models and methodologies regardless of the stage of
development and all media on which any of the foregoing is recorded and all
media on which any of the foregoing are recorded and all related programming and
user documentation, including, without limitation, all records, technical
drawings, and data relating to the foregoing, and in each and every case whether
in source code, object or executable code or human readable form, or any
translation or modification thereof that substantially preserves its original
identity. As used herein, the term Software does not include Commercially
Available Technology.
"TAX" means any net income, alternative or add-on minimum tax, gross
income, gross receipts, sales, use, ad valorem, value-added, franchise, capital,
paid-up capital, profits, greenmail, license, withholding, payroll, employment,
excise, severance, stamp, occupation, premium, property, environmental or
windfall profit tax, custom, duty or other tax, governmental fee or other like
assessment or charge of any kind or nature whatsoever, together with any
interest or any penalty, addition to tax or additional amount imposed by any
governmental authority (domestic or foreign) responsible for the imposition of
any such tax.
"THIRD PARTY INTELLECTUAL PROPERTY RIGHTS" means Intellectual Property
owned by any third party and licensed to Seller or any of its Affiliates as of
the Closing Date for use in connection with Fallout, including without
limitation Commercially Available Technology and the third party Intellectual
Property listed in the Disclosure Schedule. With respect to any Third Party
Intellectual Property Rights, use of the term "purchase" or "sale" in this
Agreement shall mean the purchase or sale of Seller's interest (E.G., through
transfer, assignment of a license, etc.) by Purchaser.
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