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EXHIBIT 10.10
CERTAIN INFORMATION HAS BEEN OMITTED UNDER A
CONFIDENTIAL TREATMENT REQUEST MADE PURSUANT TO RULE 406
UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
AMENDMENT TO
GTIS MASTER OPTION AND LICENSE AGREEMENT
This amendment agreement (the "Amendment") is made and entered into
the 31st day of March, 1995, by and among WMS INDUSTRIES INC. ("WMS"),
XXXXXXXX ELECTRONICS GAMES, INC. ("WEG"); MIDWAY MANUFACTURING COMPANY
("Midway") and XXXXXXXX ENTERTAINMENT INC. ("WEI"), each being Delaware
corporations with offices at 0000 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, and GT INTERACTIVE SOFTWARE CORP. ("GTIS"), a Delaware corporation with
offices at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
W I T N E S S E T H:
WHEREAS, on December 28, 0000 XXX, XXX, Xxxxxx, WEI and GTIS entered
into the GTIS Master Option and License Agreement (the "GTIS Master Agreement")
pursuant to which the "WMS Group" granted to GTIS certain rights with respect
to the manufacture, distribution and sale of "Games" for use on "Designated
Multipurpose Computer Platforms" (as those terms are defined in the GTIS Master
Agreement); and
WHEREAS, WMS, WEG, Midway, WEI and GTIS desire to amend the GTIS
Master Agreement to extend the term thereof, provide for an increase in
the amount of the
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"Option and Advance Fee" payable thereunder, and for other purposes, as set
forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and other good and valuable consideration, the parties hereto
hereby agree as follows:
1. Capitalized terms used, but not defined herein, shall have
the meanings ascribed in the GTIS Master Agreement or the form of Home Computer
Software Distribution and License Agreement annexed to the GTIS Master
Agreement as Exhibit A. In addition, the GTIS Master Agreement is amended to
add a new Section 1.4A to read in its entirety as follows:
1.4A "GTIS" shall mean GTIS or any affiliate of GTIS to
whom any rights to exploit any Accepted Games granted hereunder may
be sublicensed. An affiliate of GTIS shall refer to an entity, a
majority of whose capital stock is owned directly or indirectly by
GTIS or with respect to which during the term of this Agreement, GTIS,
directly or indirectly, has the legal power without the consent of any
third party to direct the manufacture, distribution or sale of
Accepted Games.
2. The GTIS Master Agreement shall be amended to extend the term
thereof from three (3) years to five (5) years and to modify provisions
relating to the "Extension Events." Accordingly, Section 2.1 thereof is hereby
amended and restated to read in its entirety as follows:
2.1 The WMS Group hereby grants to GTIS a first option to
acquire a license, in the form of the Home Computer Software
Distribution and License Agreement, to manufacture, distribute and
sell versions of the Game for use solely on Designated Multipurpose
Computer Platforms, with respect to (a) Previously Developed Games,
(b) new Games First Released by the WMS Group during the five (5) year
period commencing March 22, 1995 and expiring March 31, 2000 (the
"Initial Option Period"), and (c) Games which
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THE INFORMATION BELOW MARKED BY * HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
were offered to Acclaim Entertainment, Inc. ("Acclaim") between
December 28, 1994 and March 21, 1995, but are not accepted by Acclaim
("Interim Period Games"). If either of the "Extension Events"
described below shall have occurred prior to April 1, 1998, the
Initial Option Period shall be deemed extended to March 31, 2001.
Extension Events shall mean either (i) the WMS Group shall have
received not less than * Dollars in the aggregate from royalties paid
under Home Computer Software Distribution and License Agreements and
the Option and Advance Fee or from voluntary payments by GTIS,
provided that the amount of voluntary payments which may be utilized
to calculate the attainment of the Extension Event shall not exceed *
Dollars; or (ii) the market value of the shares of stock which may be
acquired by WMS upon exercise of the Warrants provided for in Section
4 hereof shall have increased by at least * Dollars as compared to the
market value of such shares on the date the Warrants were issued and
an amount of such shares have been purchased or are currently
purchasable under the Warrants and have been sold or are publicly
saleable by WMS as have permitted or will permit WMS to realize such *
Dollars increase. For purposes hereof shares shall be considered
publicly saleable (A) if they are saleable under Rule 144 promulgated
under the Securities Act of 1933, as amended (the "Securities Act"),
or any similar rule hereafter in effect; (B) if, in the opinion of
counsel to GTIS, such shares may be publicly sold under Section 4(1)
or otherwise publicly sold without registration under the Securities
Act; (C) if such shares have been registered for sale and are saleable
under an effective registration statement duly filed under the
Securities Act; (D) if WMS has a demand registration right then
available under the registration rights agreement annexed hereto as
Exhibit B; or (E) if GTIS has duly exercised the GTIS Call as that
term is defined in such registration rights agreement. In calculating
the amount the WMS Group has received for purposes of clause (i)
above, payments made with royalty reports received prior to May 16,
1998 shall be included.
On or about April 1, 1999, or, if either of the Extension
Events shall have occurred prior to April 1, 1998, then on or about
April 1, 2000, the WMS Group and GTIS shall enter into good faith
negotiations with respect to an extension (or further extension) of
the term of the GTIS Master Agreement. If the parties are unable to
reach agreement with respect to such extension, despite such good
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THE INFORMATION BELOW MARKED BY * HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
faith negotiations, the WMS Group shall be free (i) to negotiate with
and enter into an agreement with any third party or parties relating
to the granting of licenses for the manufacture, distribution, sale or
other exploitation of the Games or any future Games on Designated
Multipurpose Computer Platforms, on whatever terms and conditions it
may deem appropriate (a "Third Party License"), or (ii) to retain and
exploit such rights itself or through any affiliated entity, in each
case with respect to periods following the expiration of the term
hereof, provided, however, that if prior to the expiration of the term
hereof, the WMS Group shall propose to enter into a Third Party
License as contemplated in clause (i) above, it shall first give GTIS
written notice thereof and the right, for a period not to exceed
thirty (30) days, to enter into an agreement with the WMS Group on the
same terms and conditions as such Third Party License. Nothing herein
shall be deemed to require the parties to enter into any agreement
with respect to periods following the expiration of the term hereof or
in any way to inhibit the WMS Group from retaining and exploiting any
rights with respect to the Games or any future Games itself or through
any affiliated entity following the expiration of the term hereof.
References to the Initial Option Period in Section 1.6 are hereby
deleted.
3. Section 3 of the GTIS Master Agreement shall be amended to
increase the amount of the Option and Advance Fee from * Dollars to * Dollars
and to provide for payment thereof and additional security therefor.
Accordingly, Section 3 of the GTIS Master Agreement is hereby amended and
restated to read in its entirety as follows:
3. OPTION FEE AND GUARANTEED ADVANCE ROYALTY. In
consideration for the option granted herein and as a guaranteed
advance royalty, GTIS agrees to pay to WMS a fee in the amount of *
Dollars (the "Option and Advance Fee") and to issue the Warrants as
set forth in Paragraph 6 below. The Option and Advance Fee shall be
payable in installments as follows: * Dollars was paid by wire
transfer to WMS in immediately available funds on December 28, 1994; *
Dollars shall be paid by wire transfer to WMS in immediately available
funds on the date hereof; * Dollars shall be paid on or before
December 28, 1995 and * Dollars shall be paid
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THE INFORMATION BELOW MARKED BY * HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
on or before December 28, 1996. It is understood that under no
circumstances shall the WMS Group be required to repay any portion of
such amounts nor shall GTIS be entitled to any set off or to claim the
right not to pay any portion of such amounts for any reason; provided
that GTIS shall be entitled to recoup such payments out of royalties,
to the extent provided in the Home Computer Software Distribution and
License Agreements entered into pursuant to this Agreement. If the
payment due on December 28, 1995 is not paid in full when due, the
payment otherwise due December 28, 1996 shall become immediately due
and payable. The obligation to make such deferred payments is being
fully secured as follows: (a) a clean standby letter of credit in
the amount of * Dollars, issued by Republic National Bank was
heretofore delivered to WMS on December 29, 1994, and (b) a clean
standby letter of credit in the amount of * Dollars, issued by
Republic National Bank shall be delivered to WMS not later than March
31, 1995. GTIS shall be responsible for all costs and expenses,
including legal fees, which may be incurred by WMS in connection with
its collection of the deferred payments. WMS shall permit GTIS from
time to time to exchange the original or any substitute letters of
credit for other substitute letters of credit, provided that the
newest substitute letters of credit are (i) issued by Republic
National Bank or another bank acceptable to WMS, (ii) the amounts of
the newest substitute letters of credit are not less than the amounts
then owed with respect to the above described deferred payments, and
(iii) the newest substitute letters of credit otherwise contain the
same terms and conditions as are contained in the letter of credit for
which it is being substituted. GTIS has advised the WMS Group of its
intention to effect an initial public offering ("IPO") of its common
stock or preferred stock convertible into common stock during the
Initial Option Period. In the event that GTIS shall complete such IPO
during the Initial Option Period and, as a result thereof, the
additional or paid-in capital of GTIS shall be increased by at least *
Dollars, as shown on a balance sheet of GTIS certified by its
independent certified public accountants and furnished to the WMS
Group, then the WMS Group shall permit GTIS to cancel the letters of
credit securing the remaining deferred installments of the Option and
Advance Fee. Cancellation of such letters of credit shall in no way
relieve GTIS of its obligation to make payment of all remaining
installments of the Option and Advance Fee as set forth above.
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4. Section 8 of the GTIS Master Agreement and Section 16
of the Home Computer Software Distribution and License Agreement are each
amended to provide for additional copies of notices by adding the following:
With a copy to:
GT Interactive Software Corp.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxx, Esq.
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
With a copy to:
Xxxxxxxx Entertainment Inc.
0000 Xxxxx Xxxxxxxx 00
Xxxxxxxxx, Xxxxx 00000
Attention: Mr. Xxxxx Xxxx
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
5. Section 10.1 of the GTIS Master Agreement shall be
amended and restated to read in its entirety as follows:
10.1 This Agreement is personal to GTIS as one party and the
WMS Group as the other party. Neither this Agreement nor any party's
rights under it may be assigned, in whole or in part, nor may its
obligations be delegated, in whole or in part, to any person or party
without the prior written consent of the other party, except that any
party may assign its rights and delegate obligations to any of its
direct or indirect wholly-owned subsidiaries or affiliates or to any
person, firm or corporation owning or acquiring all or substantially
all of the stock or assets of that party, as long as that party
remains fully liable for its obligations hereunder. Any sale of all
or substantially all of the assets of any member of the WMS Group
shall include a requirement for the assumption by the purchaser of all
covenants, obligations and duties undertaken by the seller pursuant to
the terms of this Agreement, including its obligations with respect to
Games and the intellectual property from which they are derived.
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This Agreement shall bind the parties, their successors and permitted
assignees and delegees. The members of the WMS Group, as one party,
and GTIS (including its sublicensees and affiliates as one party) are
each jointly and severally liable for their respective obligations
under the terms of this Agreement.
6. The representations and warranties of the WMS Group,
as set forth in Section 5 of the GTIS Master Agreement, and the representations
and warranties of GTIS, as set forth in Section 6 of the GTIS Master Agreement,
shall be deemed restated and confirmed by the parties, respectively, as of the
date hereof and references therein to the GTIS Master Agreement shall be deemed
to refer to the GTIS Master Agreement as amended hereby.
7. Section 3.1 of the Home Computer Software
Distribution and License Agreement shall be amended to eliminate North and
South Korea, Hong Kong, China (PRC), Taiwan (ROC), Malaysia, Singapore,
Philippines, Indonesia, Thailand, India and Pakistan from inclusion in the term
"Excluded Asian Countries." All references to "Excluded Asian Countries" shall
be deemed to refer only to Japan.
8. Sections 6.1 and 6.2 of the Home Computer Software
Distribution and License Agreement shall be amended and restated to read in
their entirety as follows:
6.1 Licensee agrees to forward to Licensor, within
forty-five (45) days after the end of each calendar quarter ("Royalty
Period"), commencing with the first calendar quarter during which any
unit of the Licensed Product is sold, a report, in reasonable detail
and reported separately, by Marketing Area, of the number of units and
average wholesale price (by sales bracket, as provided in Schedule B
hereof) of the Licensed Products sold within such Royalty Period and
the royalty amount due for the sale of such units calculated in
accordance with Section ? below and any recoupment claimed in
accordance with Schedule B annexed hereto, and Section ? of the GTIS
Master Agreement. For purposes hereof, the term "Marketing Area"
shall include North America (as such term is defined in the GTIS
Master Option and License Agreement (Home Video Games) between the
parties,
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dated March 31, 1995, and each of the other Marketing Areas designated
on Schedule C to Exhibit A of such GTIS Master Option and License
Agreement (Home Video Games). Such report shall also include a
cumulative reconciliation of the number of units of Licensed Products
produced by Licensee to the number of units on hand. Licensee agrees
that accompanying each such report shall be payment, in U. S. funds,
of the amounts due to Licensor, if any, in respect of such Royalty
Period in excess of any permitted recoupment. Royalties calculated in
foreign currencies shall be converted to U. S. currency at the spot
rate of exchange published in the Wall Street Journal as of the last
day of the Royalty Period. Such reports shall be required to be
submitted with respect to sales and distributions of the Licensed
Product whether or not any amounts are due under the terms hereof.
6.2. Licensee agrees to keep accurate books of account and
records with respect to the Licensed Products, covering all sales,
purchases and inventories of Licensed Products and all royalty fees
due under this Agreement at Licensee's offices (or the offices of
Licensee's affiliates) and to permit (or procure the right for)
Licensor at its own expense to have accounting professionals (which
may include Licensor's employees who have accounting degrees) inspect
such books of account and records of Licensee or its sublicensees
during reasonable business hours (but not during the first three weeks
of a calendar quarter), upon prior reasonable written notice, for the
sole purpose of verifying the reports to be provided hereunder. Such
inspections, together with inspections of Licensee's books of account
and records pertaining to other Computer Games licensed to Licensee by
Licensor or its affiliates under Other Home Computer Software
Distribution and License Agreements, shall occur no more frequently
than twice during any twelve (12) month period for each of the
Licensee's offices. Licensor's inspectors shall not be physically
present in a specific office of Licensee for more than 10 consecutive
business days in connection with any such inspection, provided that
Licensee shall have supplied all requested information and
documentation and responded to questions on a reasonably prompt basis.
Licensee shall promptly furnish to Licensor copies of any report which
Licensee may produce as the result of any audit by Licensee of the
books of account and records of any sublicensee of Licensee. Licensor
shall keep any information obtained from any such inspections in
confidence and shall require that its accounting professionals do so
as well. Licensee's books relating to any particular royalty
statement may be examined as aforesaid only
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THE INFORMATION BELOW MARKED BY * HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
within two (2) years after the date rendered and Licensee shall have
no obligation to permit Licensor to so examine such books relating to
any particular royalty statement more than once for any one statement,
unless in connection with a civil action filed by Licensor against
Licensee in connection with such statement. In the event that any
audit by Licensor's accounting professionals reveals that Licensee has
underpaid Licensor by an aggregate of * or more with respect to the
specific royalty statements which are the subject of such audit,
Licensee agrees that it shall also reimburse Licensor for the
reasonable documented costs for any such audit (including traveling
costs) up to the amount of the shortfall.
9. Section 6.3 of the Home Computer Software Distribution and
License Agreement shall be amended to correct the third sentence thereof to
read as follows: "Not less than * of the balance of the shipment, less actual
returns, shall be deemed a sale for royalty purposes six (6) months following
the date of shipment, and the balance of such shipment, less actual returns
not already counted, shall be deemed a sale for royalty purposes twelve (12)
months following the date of shipment."
10. Section 6 of the Home Computer Software Distribution and
License Agreement shall be amended to include the following new Section 6.6 and
6.7:
6.6 Licensee recognizes that the timely submission of all
reports required to be submitted to Licensor pursuant to Section 6.1
hereof is critical for Licensor to maintain good relations with its
third party licensors as well as for Licensor's own financial
reporting requirements. Therefore, in addition to any other rights and
remedies of Licensor, if Licensee shall be late by more than five (5)
business days with respect to any report and/or royalty payment
required to be submitted to Licensor pursuant to Section 6.1 hereof
(a "Late Report"), then Licensee shall pay to Licensor a late charge
("Late Charge") at a rate equal to the prime rate designated by
Citibank N.A. on any royalties covered by such Late Report that are
actually payable to Licensor as provided in Schedule B. Such Late
Charge
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shall be computed from the 46th day following the last day of the
calendar quarter for which such Late Report is due until the date
actually paid. Licensor may elect to waive payment of any such Late
Charge if Licensee shall have provided a reasonable estimate of
royalties due within fifteen (15) days following the end of the
calendar quarter covered by such Late Report.
6.7 At the time that the Licensor shall provide to
Licensee notice of availability of a Game pursuant to Section 2.4 or
2.5 of the GTIS Master Agreement, Licensor shall provide to Licensee
sufficient data to enable Licensee to calculate Third Party Fees and
Royalties payable with respect to each Licensed Product (without
regard to any advances which may have been made by Licensor). If
Licensee is unable to calculate specific Third Party Fees and
Royalties from the data provided, Licensee may request assistance from
Licensor with respect thereto, and Licensor shall use its best efforts
to respond within seven (7) days from the date of such request, but
Licensee shall provide all sales and other data in its possession
which are necessary for such calculations.
11. The second sentence of Section 7.4 of the Home Computer
Software Distribution and License Agreement shall be amended and restated to
read in its entirety as follows:
Subsequent to final approval, Licensor may request the Licensee
once each quarter to send, without charge, a reasonable number of
production samples (but in any event not less than two (2) copies of
each language version) without payment of any royalty hereunder to
Licensor to ensure quality control.
12. Section 17.1 of the Home Computer Software Distribution
License Agreement shall be amended and restated to read in its entirety as
follows:
17.1 This Agreement is personal to Licensee as one party and
Licensor as the other party. Neither this Agreement nor any party's
rights under it may be assigned, in whole or in part, nor may
Licensee's or Licensor's rights or obligations hereunder be delegated,
in whole or in part, to any person or party without the prior written
consent of the other party, except that any party may assign its
rights and delegate obligations to any of its direct or indirect
wholly-owned subsidiaries or affiliates or to any person,
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THE INFORMATION BELOW MARKED BY * HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
firm or corporation owning or acquiring all or substantially all of
the stock or assets of that party, as long as that party remains fully
liable for its obligations hereunder. Any sale of all or
substantially all of the assets of Licensor shall include a
requirement for the assumption by the purchaser of all covenants,
obligations and duties undertaken by the seller pursuant to the terms
of this Agreement, including its obligations with respect to Games and
the intellectual property from which they are derived. This Agreement
shall bind the parties, their successors and permitted assignees and
delegees. Licensor as one party, and Licensee as the other party, are
each liable for their respective obligations under the terms of this
Agreement.
13. Schedule "B" annexed to the Home Computer Software
Distribution and License Agreement shall be amended to include the following
provision:
Where Licensor has acquired from a third party a Licensed
Property in connection with which Third Party Fees and Royalties
amounting to * or more of Licensee's estimated Net Wholesale Sales
Price are payable, Licensee may elect, at the time it elects to
accept the Licensed Product under the GTIS Master Agreement, to pay a
substitute royalty ("Substitute Royalty") therefor, which will reduce
only the highest royalty based upon the Net Wholesale Sales Price of
the Licensed Product otherwise payable pursuant to the royalty table
included in this Schedule "B." For example, if the Substitute Royalty
for a Licensed Product is *, this would apply to units sold at Net
Wholesale Sales Prices of * and above; for lower Net Wholesale Sales
Prices, the royalty percentages and corresponding Net Wholesale Sales
Prices reflected in the royalty table would not be changed, except
that the royalty percentage may not exceed the amount of the
Substitute Royalty.
The Substitute Royalty shall be computed by comparing the
gross profit of Licensor (i.e., royalty earned, less * Third Party
Fees and Royalties, less * of Shared Institutional Advertising, as
such term is hereinafter defined) to the gross profit of Licensee
(i.e., Net Wholesale Sales Price, less royalty payable to Licensor,
less * Third Party Fees and Royalties, less product manufacturing
cost, less * of Shared Institutional Advertising, less * of Net
Wholesale Sales Price (equivalent to Licensee's operating costs,
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THE INFORMATION BELOW MARKED BY * HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
excluding overhead)); and determining the royalty percentage that
would yield the same gross profit for both Licensor and Licensee. The
computation of the Substitute Royalty for any year shall be adjusted
following the end of such year for the prior year to reflect changes
in all of the components set forth above, except for the * figure
referenced above, during such prior year and any increase or decrease
in the Substitute Royalty resulting from such adjustment shall be
reflected on the royalty statement for the first Royalty Period of the
following year.
Where the Licensed Property (whether acquired from a third
party or developed by Licensor or any of its affiliates in house) is
not embodied in a coin-operated video or pinball game distributed by
Licensor or any of its affiliates, or will not be embodied in a
coin-operated video or pinball game distributed by Licensor or any of
its affiliates within 60 days from the release of the Licensed
Product, institutional advertising costs (i.e., radio, television and
print advertising to the general public), will be shared equally
("Shared Institutional Advertising") by Licensee and Licensor,
provided that (a) the portion of the Shared Institutional Advertising
costs to be borne by Licensor shall not exceed * of the Net Wholesale
Sales Price of the Licensed Product, and shall only be payable in that
portion of the Licensed Territory in which Licensee itself (and not
its sublicensees) actually pays for institutional advertising costs
and (b) all such Shared Institutional Advertising costs and budgets
therefor shall have been previously approved in writing by Licensor.
Licensee at its own cost and expense shall be solely responsible for
all in store and cooperative advertising costs associated with the
sale of Licensed Products in the Licensed Territory.
14. The section entitled "Adjustments to Royalties" in Schedule
"B" annexed to the Home Computer Software Distribution and License Agreement
shall be amended to change the references to "sublicensees" appearing in
Paragraph 2 thereof to "non-affiliated third party sublicensees" and to change
the reference to the "* Option and Advance Fee" appearing in Paragraph 3
thereof to the "* Option and Advance Fee."
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THE INFORMATION BELOW MARKED BY * HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
15. The section entitled "Recoupment" in Schedule "B"
annexed to the Home Computer Software Distribution and License Agreement shall
be amended to reflect the change in the amount of the Option and Advance Fee
and the recoupment of installments paid on account thereof, and accordingly, is
amended and restated to read in its entirety as follows:
RECOUPMENT
Licensee shall be entitled to apply the aggregate amount by
which (a) royalties paid under this Agreement exceed (b) * of the
amount of any Third Party Fees and Royalties payable by Licensor to
parties having rights with respect to the sale of Licensed Products
(the "Recoupable Amount") to recoup the * Option and Advance Fee paid
by Licensee to WMS Industries Inc. pursuant to Section 3 of the GTIS
Master Agreement, until such Recoupable Amount together with
Recoupable Amounts under any other Home Computer Software Distribution
and License Agreement entered into by Licensee pursuant to the GTIS
Master Agreement ("Other Home Computer Software Distribution and
License Agreements") equal *; provided, however, that (i) to the
extent that the aggregate of all Recoupable Amounts under this
Agreement and the Other Home Computer Software Distribution and
License Agreements between December 28, 1994 and December 28, 1995
exceeds the installments of the Option and Advance Fee paid on
December 28, 1994 and March 31, 1995, such excess shall be paid to
Licensor and the licensors under the Other Home Computer Software
Distribution and License Agreements, in accordance with their
respective interests, and applied in reduction of the installment of
the Option and Advance Fee payable under the GTIS Master Agreement on
December 28, 1996, up to a maximum reduction of *, and the balance of
such excess, if any, shall be applied first in reduction of the
installment of the Option and Advance Fee payable on December 28,
1995, and then in reduction of the installment of the Option and
Advance Fee payable on December 28, 1996, and (ii) to the extent that
the aggregate of all Recoupable Amounts under this Agreement and all
Other Home Computer Software Distribution and License Agreements
between December 28, 1994 and December 28, 1996 exceeds the unrecouped
portion of the installments of the Option and Advance Fee paid on
December 28, 1994, March 31, 1995, and
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December 28, 1995, the excess shall be paid to Licensor and the
licensors under the Other Home Computer Software Distribution and
License Agreements, in accordance with their respective interests, and
applied in reduction of the installment of the Option and Advance Fee
payable on December 28, 1996.
16. Except as otherwise set forth herein, the terms and
conditions of the GTIS Master Agreement remain unchanged and shall remain in
full force and effect in accordance with its terms.
17. This Amendment may be executed in counterparts each of which
shall be deemed an original and when taken together shall be deemed one and the
same document.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year first above written.
WMS INDUSTRIES INC
By: /s/ Xxxx X. Xxxxxxxx
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XXXXXXXX ELECTRONICS GAMES, INC.
By: /s/ Xxxx X. Xxxxxxxx
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MIDWAY MANUFACTURING COMPANY
By: /s/ Xxxx X. Xxxxxxxx
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XXXXXXXX ENTERTAINMENT INC.
By: /s/ Xxxxx Xxxx
----------------------------------------
GT INTERACTIVE SOFTWARE CORP.
By: /s/ Xxx Xxxxx
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