Exhibit 10.36
AGREEMENT REGARDING ASSIGNMENT OF CONTRACTS
BETWEEN
INTERACTIVE MAGIC, INC.
AND
UBI SOFT ENTERTAINMENT S.A.
MAY 25, 1999
TABLE OF CONTENTS
PAGE NO.
1. DEFINITIONS..........................................................1
2. BASIC TRANSACTION....................................................2
(a) Purchase and Sale of Assets......................................2
(b) Assumption of Liabilities........................................2
(c) Distribution of the Products
(d) Purchase Price...................................................3
(e) The Closing......................................................3
(f) Personnel........................................................4
(g) Conditions to Closing............................................4
(h) Deliveries at the Closing........................................5
3. REPRESENTATIONS AND WARRANTIES OF IMAGIC.............................5
(a) Organization of IMagic...........................................5
(b) Authorization of Transaction.....................................5
(c) Noncontravention.................................................5
(d) Brokers'Fees.....................................................6
(e) Title to Rights Under the Assigned Contracts.....................6
(f) Litigation.......................................................6
(g) Payment Obligations Current......................................5
(i) Disclaimer of other Representations and Warranties...............6
(h) Intellectual Property Rights 6
4. REPRESENTATIONS AND WARRANTIES OF UBI SOFT...........................7
(a) Organization of Ubi Soft.........................................7
(b) Authorization of Transaction.....................................7
(c) Noncontravention.................................................7
(d) Brokers'Fees.....................................................7
5. COVENANTS AND AGREEMENTS.............................................7
(a) General..........................................................7
(b) Litigation Support...............................................7
(c) Transition.......................................................8
6. REMEDIES FOR BREACHES OF THIS AGREEMENT..............................8
(a) Survival of Representations and Warranties.......................8
(b) Indemnification Provisions for Benefit of Ubi Soft...............8
(c) Indemnification Provisions for Benefit of IMagic.................8
(d) Matters Involving Third Parties..................................9
(e) Determination of Adverse Consequences............................9
(f) Exclusive Remedy.................................................9
7. MISCELLANEOUS........................................................9
(a) Press Releases and Public Announcements..........................9
(b) No Third-Party Beneficiaries....................................10
(c) Entire Agreement................................................10
(d) Succession and Assignment.......................................10
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(e) Counterparts....................................................10
(f) Headings........................................................10
(g) Notices.........................................................10
(h) Governing Law...................................................11
(i) Amendments and Waivers..........................................11
(j) Severability....................................................11
(k) Expenses........................................................11
(l) Construction....................................................11
(m) Incorporation of Exhibits and Schedules.........................12
(n) Bulk Transfer Laws..............................................12
(o) Arbitration.....................................................12
(p) Termination.....................................................12
Exhibit A - List of Assigned Contracts
Exhibit B - Form of Xxxx of Sale and Assignment
Exhibit C - Form of Assignment and Assumption Agreement
Exhibit D - Form of approval by the developers to the assignment of Assigned
Contracts Exhibit E - List of development contracts requiring prior approval
Exhibit F - Statement of payments paid or due to Developers at the Closing
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AGREEMENT REGARDING ASSIGNMENT OF CONTRACTS
This Agreement regarding assignment of contracts (the "Agreement") is
entered into on May 25, 1999, by and between Ubi Soft Entertainment S.A., a
company organized under the laws of France ("Ubi Soft"), and Interactive Magic,
Inc., a North Carolina corporation ("IMagic"). Ubi Soft and IMagic are referred
to collectively herein as the "Parties."
This Agreement contemplates a transaction in which Ubi Soft will
purchase rights under certain development contracts between IMagic and third
party developers (and assume certain liabilities relating thereto) for Cash.
Now, therefore, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties
and covenants herein contained, the Parties agree as follows.
1. DEFINITIONS.
"Adverse Consequences" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, liabilities,
obligations, taxes, liens, losses, expenses and fees, including court costs and
reasonable attorneys' fees and expenses.
"Assigned Contracts" means those certain contracts or agreements to
which IMagic is a party which are identified on Exhibit A as being assigned to
Ubi Soft under this Agreement.
"Assumed Liabilities" means only the following liabilities and
obligations: (I) all liabilities and obligations with respect to, arising out
of, or related to ownership, possession or use of the Assigned Contracts after
the Closing Date; and (II) all obligations of IMagic under the terms of the
Assigned Contracts which by the terms thereof are to be paid, observed,
discharged or performed, as the case may be, at any time after the Closing Date,
but excluding obligations and liabilities arising out of any breach or default
by IMagic under any such Assigned Contract on or prior to the Closing Date.
"Cash" means cash and cash equivalents (including marketable securities
and short term investments) calculated in accordance with GAAP applied on a
basis consistent with the preparation of the Financial Statements.
"Closing" has the meaning set forth in Section 2(e) below.
"Closing Date" has the meaning set forth in Section 2(e) below.
"Employer Liabilities" means any obligation or liability with respect
to any current or former employees, agents or representatives of IMagic.
"GAAP" means United States generally accepted accounting principles as
in effect from time to time.
"IMagic" has the meaning set forth in the preface above.
"Indemnified Party" has the meaning set forth in Section 6(d) below.
"Indemnifying Party" has the meaning set forth in Section 6(d) below.
"Knowledge" means actual knowledge without independent investigation.
"Party" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation, an
association, a limited liability company, a joint stock company, a trust, a
joint venture, an unincorporated organization, or a governmental entity (or any
department, agency or political subdivision thereof).
"Purchase Price" has the meaning set forth in Section 2(d) below.
"Security Interest" means any mortgage, pledge, lien, encumbrance,
charge or other security interest.
"Taxes" means any federal, state, county, local, foreign and other
taxes (including without limitation income, profits, premium, franchise, excise,
value, use, occupancy, gross receipts, employment, payroll-related or property
tax of any sort) imposed upon IMagic or any consolidated group of which IMagic
is or was a member.
"Third Party Claim" has the meaning set forth in Section 6(d) below.
"Ubi Soft" has the meaning set forth in the preface above.
2. BASIC TRANSACTION.
(a) Purchase and Sale of the Assigned Contracts. On and subject to the
terms and conditions of this Agreement, at the Closing for the consideration
specified below in this Section 2, Ubi Soft agrees to purchase from IMagic, and
IMagic agrees to sell, transfer, convey, assign, grant, confirm, set over and
deliver to Ubi Soft and its successors and assigns forever, free and clear of
all liens and encumbrances: (I) all of its right, title and interest in and to
all of the Assigned Contracts; (II) all prepaid expenses, credits, deferred
charges, rebates, refunds, security and other deposits pertaining to the
Assigned Contracts; (III) the full benefit of all representations, warranties,
guaranties, indemnities, undertakings, certificates, covenants, agreements and
the like, and all security therefor, received by IMagic with respect to the
Assigned Contracts; (IV) all claims, choses in action and rights of recovery
relating to the Assigned Contracts, (V) all of the copyrights, patents,
trademarks, service marks, trade names, applications for any of the foregoing,
mask works, technology, inventions, computer software, data and documentation
(including electronic media), product drawings, trade secrets (technical and
non-technical), know-how, confidential information, deliverables under the
Assigned Contracts and other intellectual property and other proprietary rights
that are owned by IMagic and that has been developed for, or are used in, or
contemplated to be used in, the work and products being developed under the
Assigned Contracts, and licenses or other agreements to or from third parties
regarding the foregoing (collectively, "Intellectual Property").
(b) Assumed and Retained Liabilities.
(I) On and subject to the terms and conditions of this Agreement, upon
the transfer of the Assigned Contracts at the Closing, Ubi Soft agrees to assume
and become responsible for all of the Assumed Liabilities.(II) Notwithstanding
anything to the contrary contained herein, Ubi Soft shall not assume, or in any
way be liable or responsible for, any liabilities, commitments or obligations of
IMagic of any kind or nature whatsoever, known or unknown,
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accrued, fixed, contingent or otherwise, liquidated or unliquidated, xxxxxx or
inchoate, due or to become due, except for the Assumed Liabilities. Without
limiting the generality of the foregoing, Ubi Soft shall not assume, and IMagic
shall remain responsible for the following: (a) any liabilities or obligations
with respect to, arising out of, or related to, the Assigned Contracts on or
prior to the Closing Date; (b) any liability or obligation of IMagic for Taxes
accrued for, applicable to or arising from any period, (c) any Employer
Liability; and (d) any present or future claims against IMagic in connection
with the sale, manufacture or distribution of any products manufactured in whole
or in part by, or services provided by, IMagic (collectively, the "Retained
Liabilities"). The assumption by Ubi Soft of the Assumed Liabilities shall not
be construed to defeat, impair or limit in any way any rights or remedies of Ubi
Soft to dispute the validity or amount of any of the Assumed Liabilities.
(c) Distribution of the products developed under the Assigned Contracts
. IMagic certifies and warranties to UBI SOFT that it has not entered into any
distribution agreement relating to the Assigned Contracts. Accordingly, Ubi Soft
shall be free to distribute and commercialize the products to be developed under
the Assigned Contracts as it wishes.
(d) Purchase Price. Ubi Soft agrees to pay to IMagic at the Closing $ 2
500 000 (the "Purchase Price") by delivery of Cash payable by wire transfer or
delivery of other immediately available funds.
(e) The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place before June 30, 1999 at the offices
of Ubi Soft Entertainment Inc., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 10 001,
commencing at 9:00 a.m. local time or on such other date or place as the Parties
may mutually determine (the "Closing Date").
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(f) Personnel. Ubi Soft will not retain any employees of IMagic.
(g) Conditions to Closing. (I) Ubi Soft's obligation to consummate this
Agreement is expressly subject to the following conditions (compliance with
which or the occurrence of which may be waived in whole or in part by Ubi Soft):
1. Ubi soft shall have completed its due diligence and legal audit of
the Assigned Contracts and such due diligence and legal audit shall
be satisfactory to Ubi Soft
2. The absence of any action or event to restrain or prohibit, or to
obtain damages or a discovery order in respect of, this Agreement
or the consummation of the transactions contemplated by this
Agreement.
3. All representation and warranties of IMagic shall be true and
correct in all material respects as of the Closing Date.
4. IMagic shall have complied with and duly performed in all material
respects all agreements and conditions on its part to be complied
with and performed pursuant to this Agreement on or before the
Closing Date.
5. Written approval of third party developers , in the form attached
hereto Exhibit D, on the assignment of the Assigned Contracts
entered with such developers listed on Exhibit E.
6. Execution of a license agreement, mutually satisfactory to Ubi
Soft and IMagic, granting IMagic online rights with respect to the
games produced under the Assigned Contracts
7. Approval of this Agreement and the transactions contemplated hereby
by Ubi Soft's Board of Directors
(II) IMagic's obligation to consummate this Agreement is expressly
subject to the following conditions (compliance with which or the occurrence of
which may be waived in whole or in part by IMagic):
1 The absence of any action or event to restrain or prohibit, or to
obtain damages or a discovery order in respect of, this Agreement
or the consummation of the transactions contemplated by this
Agreement.
2 All representation and warranties of Ubi Soft shall be true and
correct in all material respects as of the Closing Date.
3 Ubi Soft shall have complied with and duly performed in all
material respects all agreements and conditions on its part to be
complied with and performed pursuant to this Agreement on or before
the Closing Date
4 Execution of a license agreement, mutually satisfactory to Ubi Soft
and IMagic, granting IMagic online rights with respect to the games
produced under the Assigned Contracts.
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(h) Deliveries at the Closing. At the Closing,
(i) IMagic will execute and deliver to Ubi Soft (A) a Xxxx
of Sale and Assignment in the form attached hereto as Exhibit B and (B)
such other instruments of sale, transfer, conveyance and assignment as
Ubi Soft and its counsel reasonably may request;
(ii) Ubi Soft will execute and deliver to IMagic (A) an
assumption with respect to the Assumed Liabilities in the form attached
hereto as Exhibit C and (B) such other instruments of assumption as
IMagic and its counsel reasonably may request;
(iii) Ubi Soft will deliver to IMagic the Cash consideration
specified in Section 2(d) above;
(iv) Ubi Soft will deliver to IMagic a license granting
IMagic certain online rights with respect to games produced under the
Assigned Contracts;
(v) Each Party shall deliver a certificate to the other
Party signed by an appropriate officer of such delivering Party to the
effect that (a) in the case of Ubi Soft, each of the conditions to
Closing set forth in Section 2(g) (I) have been satisfied and (b) in
the case of IMagic, each of the conditions in Section 2 (g) (II) have
been satisfied.
3. REPRESENTATIONS AND WARRANTIES OF IMAGIC. IMagic represents and warrants
to Ubi Soft that the statements contained in this Section 3 are correct as of
the date of this Agreement and will be correct as of the Closing Date as though
made on that date.
(a) Organization of IMagic. IMagic is a corporation duly organized,
validly existing and in good standing under the laws of the State of North
Carolina.
(b) Authorization of Transaction IMagic has full power and authority
(including full corporate power and authority) and has taken all necessary
corporate action to execute and deliver this Agreement and to perform its
obligations hereunder. Without limiting the generality of the foregoing, the
Board of Directors of IMagic has duly authorized the execution, delivery and
performance of this Agreement by IMagic. This Agreement has been duly executed
and delivered by IMagic and, assuming due authorization of, and execution and
delivery by Ubi Soft, constitutes the valid and legally binding obligation of
IMagic, enforceable in accordance with its terms and conditions except as the
enforcement thereof may be affected by bankruptcy or other laws affecting the
rights of creditors generally.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge or other restriction of any government,
governmental agency or court to which IMagic is subject or any provision of the
charter or Bylaws of IMagic, (ii) conflict with, result in a breach of,
constitute a default under any agreement, contract, lease, license, instrument
or other arrangement to which IMagic is a party or by which it is bound, (iii)
result in the creation of any mortgage, lien, Security Interest, charge or other
encumbrance upon all or any part of the Assigned Contracts, or (iv) except as
set forth on Exhibit E, require IMagic to obtain any consent, approval or action
of, or make any filing with or give notice to, any governmental
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body or any other person or entity, except where the violation, conflict, breach
or default would not have a material adverse effect on Ubi Soft's rights under
any of the Assigned Contracts or the transactions contemplated hereby.
(d) Brokers' Fees. IMagic has no liability or obligation to pay any
fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement for which Ubi Soft could become
liable or obligated.
(e) Title to Rights under the Assigned Contracts. IMagic has good and
indefeasible title to all of the rights afforded to IMagic under the Assigned
Contracts free and clear of any Security Interest. IMagic has not previously
disposed of any right or interest under any of the Assigned Contracts. IMagic is
not party to any contract, agreement or commitment for the sale or disposition
of any of the rights under the Assigned Contracts. All of the Assigned Contracts
constitute valid and legally binding obligations of IMagic, and to the knowledge
of IMagic of the other the parties thereto, enforceable in accordance with their
terms and conditions except as enforcement thereof may be affected by bankruptcy
or other laws affecting the rights of creditors generally. IMagic has delivered
copies of all the Assigned Contracts to Ubi Soft. Since the date of signature of
the Assigned Contracts, the Assigned Contracts have not been amended or
otherwise modified, unless expressly mentioned in Exhibit A.
(f) Litigation. IMagic is not engaged in and, to IMagic's knowledge, is
not threatened with any material litigation or other proceeding which may give
rise to any claim against, or dispute involving, the Assigned Contracts or any
of the Intellectual Property.
(g) Payment Obligations Current. As specified in Exhibit F attached
hereto, IMagic is and will be at the Closing Date current with all of its
payment obligations to third parties due and payable under the Assigned
Contracts.
(h) Intellectual Property Rights. IMagic owns, free and clear of all
liens, or has the unrestricted right to use and sublicense all of the
Intellectual Property. Each copyright, trademark, service xxxx and patent
included in the Intellectual Property are valid, subsisting and in full force
and effect and IMagic has taken all necessary steps to protect and maintain each
such item of Intellectual Property. None of the Intellectual Property is subject
to any outstanding order, and no action, suit, proceeding, hearing,
investigation, charge, complaint, claim or demand is pending or, to the
knowledge of IMagic, threatened, which challenges the validity, enforceability,
use or ownership of any Intellectual Property. IMagic has substantially
performed all obligations imposed upon it under the Assigned Contracts and all
Intellectual Property licenses, and IMagic is not, nor to the knowledge of
IMagic is any other party thereto, in breach of or in default thereunder in any
respect, nor is there any event which with notice or lapse of time or both would
constitute a default thereunder. All of the Intellectual Property licenses are
valid, enforceable and in full force and effect, and will continue to be so on
identical terms immediately following the Closing except as enforcement thereof
may be affected by bankruptcy or other laws affecting the rights of creditors
generally. To the knowledge of IMagic, none of the Intellectual Property
infringes on or violates any intellectual property rights of others. To the
knowledge of IMagic, no person is infringing on or misappropriating the
Intellectual Property.
(i) Disclaimer of other Representations and Warranties. Except as
expressly set forth in this Agreement, IMagic makes no representation or
warranty, express or implied, at law or in equity, in respect of any of its
assets, liabilities or operations, including, without
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limitation, with respect to merchantability or fitness for any particular
purpose, and any such other representations or warranties are hereby expressly
disclaimed. Buyer hereby acknowledges and agrees that, except to the extent
specifically set forth in this Agreement, Ubi Soft is purchasing the Assigned
Contracts on an "as-is, where-is" basis. Without limiting the generality of the
foregoing, IMagic makes no representation or warranty regarding any assets other
than the Assigned Contracts or any liabilities other than the Assumed
Liabilities, and none shall be implied at law or in equity.
4. REPRESENTATIONS AND WARRANTIES OF UBI SOFT. Ubi Soft represents and
warrants to IMagic that the statements contained in this Section 4 are correct
as of the date of this Agreement and will be correct as of the Closing Date as
though made on the Closing Date.
(a) Organization of Ubi Soft. Ubi Soft is a company duly organized,
validly existing and in good standing under the laws of France and/or other
applicable jurisdiction.
(b) Authorization of Transaction. Subject to section 2 (g) 6 of this
Agreement, Ubi Soft has full power and authority (including full corporate power
and authority) to execute and deliver this Agreement and to perform its
obligations hereunder.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge or other restriction of any government,
governmental agency or court to which Ubi Soft is subject or any provision of
its charter, Bylaws or other governing documents or (ii) conflict with, result
in a breach of, constitute a default under any agreement, contract, lease,
license, instrument, or other arrangement to which Ubi Soft is a party or by
which it is bound.
(d) Brokers' Fees. Ubi Soft has no liability or obligation to pay any
fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement for which IMagic could become liable
or obligated.
5. COVENANTS AND AGREEMENTS. The Parties agree as follows:
(a) General. In case at any time after the Closing any further action
is necessary or desirable to carry out the purposes of this Agreement, each of
the Parties will take such further action (including the execution and delivery
of such further instruments and documents) as the other Party reasonably may
request, at the sole cost and expense of the requesting Party (unless the
requesting Party is entitled to indemnification therefore under Section 6
below).
(b) Litigation Support. In the event and for so long as any Party
actively is contesting or defending against any action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand in connection with
(i) any transaction contemplated under this Agreement or (ii) any fact,
situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act or transaction on or prior
to the Closing Date involving the Assigned Contracts, the other Party will
cooperate with the contesting or defending Party and its counsel in the contest
or defense, make available its personnel and provide such testimony and access
to its books and records as shall be necessary in connection with the contest or
defense, all at the sole cost and expense of the contesting or defending Party
(unless the contesting or defending Party is entitled to indemnification
therefor under Section 6 below).
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(c) Transition. IMagic will use its best efforts so that any lessor,
licensor, customer, supplier or other business associate of IMagic will
maintain the same business relationships with Ubi Soft relating to the
Assigned Contracts after the Closing as it maintained with IMagic prior to
the Closing. IMagic shall conduct its business in such a manner that the
representations and warranties contained in this Agreement` shall continue to
be true and correct on and as of the Closing Date as if made on and as of the
Closing Date.
6. REMEDIES FOR BREACHES OF THIS AGREEMENT.
(a) Survival of Representations and Warranties. All of the
representations and warranties of the Parties under this Agreement shall survive
the Closing and continue in full force and effect for a period of one year
thereafter.
(b) Indemnification Provisions for Benefit of Ubi Soft. In the event
IMagic breaches any of its representations, warranties or covenants contained in
this Agreement, and, provided that Ubi Soft makes a written claim for
indemnification against IMagic pursuant to Section 7(g) below within 30 business
days after the end of the survival period, then IMagic agrees to indemnify Ubi
Soft from and against the entirety of any Adverse Consequences Ubi Soft shall
suffer based upon, arising out of, or otherwise in respect of such breach;
provided, however, that IMagic shall not have any obligation to indemnify Ubi
Soft from and against any Adverse Consequences caused by the breach of any
representation or warranty of IMagic: (A) until Ubi Soft has suffered Adverse
Consequences by reason of all such breaches in excess of a $10,000 aggregate
deductible (after which point IMagic will be obligated only to indemnify Ubi
Soft from and against all further Adverse Consequences) (B) to the extent the
Adverse Consequences Ubi Soft has suffered by reason of all such breaches
exceeds the amount of the Purchase Price (after which point IMagic will have no
obligation to indemnify Ubi Soft from and against further such Adverse
Consequences). IMagic agrees to indemnify Ubi Soft without deduction from and
against the entirety of any Adverse Consequences Ubi Soft shall suffer caused by
any liability which is a Retained Liability
(c) Indemnification Provisions for Benefit of IMagic. In the event Ubi
Soft breaches any of its representations contained in Section 4 of this
Agreement, and, provided that IMagic makes a written claim for indemnification
against Ubi Soft pursuant to Section 7(g) below within such survival period,
then Ubi Soft agrees to indemnify IMagic from and against the entirety of any
Adverse Consequences IMagic shall suffer based upon, arising out of, or
otherwise in respect of such breach; provided, however, that Ubi Soft shall not
have any obligation to indemnify IMagic from and against any Adverse
Consequences caused by the breach of any representation of Ubi Soft: (A) until
IMagic has suffered Adverse Consequences by reason of all such breaches in
excess of a $10,000 aggregate deductible (after which point Ubi Soft will be
obligated only to indemnify IMagic from and against further such Adverse
Consequences) (B) to the extent the Adverse Consequences IMagic has suffered by
reason of all such breaches exceeds the amount of the Purchase Price (after
which point Ubi Soft will have no obligation to indemnify IMagic from and
against further such Adverse Consequences). Ubi Soft agrees to indemnify IMagic
without deduction from and against the entirety of any Adverse Consequences
IMagic shall suffer caused by any liability which is an Assumed Liability.
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(d) Matters Involving Third Parties.
(i) If any third party shall notify any Party (the
"Indemnified Party") with respect to any matter (a "Third Party Claim")
which may give rise to a claim for indemnification against the other
Party (the "Indemnifying Party") under this Section 6, then the
Indemnified Party shall promptly (and in any event within thirty
business days after receiving notice of the Third Party Claim) notify
the Indemnifying Party thereof in writing.
(ii) The Indemnifying Party will have the right at any time
to assume and thereafter conduct the defense of the Third Party Claim
with counsel of its choice reasonably satisfactory to the Indemnified
Party; provided, however, that the Indemnifying Party will not consent
to the entry of any judgment or enter into any settlement with respect
to the Third Party Claim without the prior written consent of the
Indemnified Party (not to be withheld unreasonably) unless the judgment
or proposed settlement involves only the payment of money damages and
does not impose an injunction or other equitable relief upon the
Indemnified Party.
(iii) Unless and until the Indemnifying Party assumes the
defense of the Third Party Claim as provided in Section 6(d)(ii) above,
however, the Indemnified Party may defend against the Third Party Claim
in any manner it reasonably may deem appropriate.
(iv) In no event will the Indemnified Party consent to the
entry of any judgment or enter into any settlement with respect to the
Third Party Claim without the prior written consent of the Indemnifying
Party (not to be unreasonably withheld, delayed or conditioned).
(v) The Indemnifying Party shall reimburse the Indemnified
Party, from time to time, for all expenses and fees, including court
costs and reasonable attorneys' fees and expenses incurred by the
Indemnified Party in investigating, prosecuting or defending any claim,
proceeding or action for which indemnification is provided pursuant to
this Section 6. All such reimbursements shall be made within seven days
of receipt of written demand therefor.
(e) Determination of Adverse Consequences. The Parties shall make
appropriate adjustments for tax benefits and insurance coverage(subject to any
rights of subrogation any insurer may have) in determining Adverse Consequences
for purposes of this Section 6. All indemnification payments under this Section
6 shall be deemed adjustments to the Purchase Price.
(f) Exclusive Remedy. Ubi Soft and IMagic acknowledge and agree that
the foregoing indemnification provisions in this Section 6 shall be the
exclusive remedy of Ubi Soft and IMagic with respect to the Assigned Contracts.
7. MISCELLANEOUS.
(a) Press Releases and Public Announcements. No Party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement without the prior written approval of the other Party; provided,
however, that any Party may make any public disclosure it believes in good faith
is required by applicable law or any
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listing or trading agreement concerning its publicly-traded securities (in which
case the disclosing Party will use its reasonable best efforts to advise the
other Party prior to making the disclosure).
(b) No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(c) Entire Agreement. This Agreement (including the documents referred
to herein) constitutes the entire agreement between the Parties and supersedes
any prior understandings, agreements, or representations by or between the
Parties, written or oral, to the extent they related in any way to the subject
matter hereof.
(d) Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and assigns. Either Party may assign this Agreement and any of its rights,
interests or obligations hereunder without the prior written approval of the
other Party; provided, however, that such assigning Party nonetheless shall
remain responsible for the performance of all of its obligations hereunder.
(e) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument. This Agreement duly signed
by both parties may be transmitted by facsimile to each party and shall
constitute an original document
(f) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(g) Notices. All notices, requests, demands, claims and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to Ubi Soft:
Attn: Xxxx Xxxxxxxxx , President
Ubi Soft Entertainment S.A.
00, xxx Xxxxxx Xxxxxx
00000 Xxxxxxxxx sous Bois Cedex
Telephone : 00 0 00 00 00 00
Telecopier : 33 1 48 18 52 82
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If to IMagic:
Interactive Magic, Inc.
000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Chief Executive Officer
Telephone: 000-000-0000
Telecopier: 000-000-0000
With a copy to :
Xxxxxx Xxxxxxx Xxxxx & Xxxxxx LLP
0000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
Any Party may send any notice, request, demand, claim or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail or electronic mail), but no such notice, request,
demand, claim or other communication shall be deemed to have been duly given
unless and until it actually is received by the intended recipient. Any Party
may change the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other Party notice in
the manner herein set forth.
(h) Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of New York applicable to
agreements made and to be performed entirely within such state.
(i) Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by Ubi
Soft and IMagic. No waiver by any Party of any default, misrepresentation or
breach of warranty or covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior or subsequent default, misrepresentation or breach
of warranty or covenant hereunder or affect in any way any rights arising by
virtue of any prior or subsequent such occurrence.
(j) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(k) Expenses. Each Party shall bear its own costs and expenses incurred
in connection with this Agreement and the transactions contemplated hereby.
(l) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state,
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local or foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation.
(m) Incorporation of Exhibits and Schedules. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
(n) Bulk Transfer Laws. Ubi Soft acknowledges that IMagic will not
comply with the provisions of any bulk transfer laws of any jurisdiction in
connection with the transactions contemplated by this Agreement.
(o) Arbitration. Any controversy or claim arising out of or related to
this Agreement, or any transactions contemplated herein, that cannot be amicably
resolved, including, without limitation, whether such controversy or claim is
subject to arbitration, will be resolved by binding arbitration held in New York
City, New York, in accordance with the commercial arbitration rules of the
American Arbitration Association, subject to this Section. Arbitration
proceedings will be conducted by a panel of three persons selected as follows.
The party initiating arbitration will select one arbitrator listed and qualified
with the American Arbitration Association ("Qualified Arbitrator") and the other
party will select a second Qualified Arbitrator, both within 10 days of any
written notice to arbitrate. The two arbitrators will select a third Qualified
Arbitrator within 20 days of the appointment of the first two arbitrators. No
arbitrator will have or previously have had any significant relationship with
any of the parties. The decision of any two of the arbitrators on any submitted
matter will be final and nonappealable. Notwithstanding the foregoing, if the
controversy or claim in question is not resolved by the arbitrators as provided
herein within 150 days after selection of the first arbitrator, either party may
pursue any remedy with respect hereto provided by law.
(p) Termination.
(a) The Parties may terminate this Agreement as provided below:
(i) Ubi Soft and IMagic may terminate this Agreement
by mutual written consent at any time prior to the Closing;
(ii) Ubi Soft may terminate this Agreement by giving
written notice to IMagic on or before the Closing Date if Ubi Soft is
not reasonably satisfied with the results of its continuing due
diligence on the Assigned Contracts;
(iii) Ubi Soft may terminate this Agreement by giving
written notice to IMagic at any time prior to the Closing (A) in the
event IMagic has breached any representation, warranty or covenant
contained in this Agreement in any material respect, or (B) if the
Closing shall not have occurred on or before June 30, 1999, by reason
of the failure of any condition precedent under Section 2(g) hereof
(unless the failure results primarily from Ubi Soft itself breaching
any representation, warranty or covenant contained in this Agreement);
and
(iv) IMagic may terminate this Agreement by giving
written notice to Ubi Soft at any time prior to the Closing (A) in the
event Ubi Soft has breached any representation, warranty or covenant
contained in this Agreement in any material respect or (B) if the
Closing shall not have occurred on or before June 30, 1999, by reason
of the
12
failure of any condition precedent under Section 2(g) hereof (unless
the failure results primarily from IMagic itself breaching any
representation, warranty, or covenant contained in this Agreement).
(b) If any Party terminates this Agreement pursuant to this
Section 7(p), all rights and obligations of the Parties hereunder shall
terminate without any liability of any Party to the other Party (except for any
liability of any Party then in breach).
*****
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the date first above written.
UBI SOFT
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
INTERACTIVE MAGIC, INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
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EXHIBIT A
LIST OF ASSIGNED CONTRACTS
1. Software Licensing Agreement dated March 23, 1998 between
IMagic and Enlight Software relating to Seven Kingdoms II.
2. Development Agreement dated March 6, 1998 between IMagic and
Enlight Software relating to three new products and four
upgrades to existing products.
3. Software Licensing Agreement dated April 15, 1998 between
IMagic and JRC-ing Xxxxxxxx Xxxxxxxx relating to Flash Point.
4. Software Licensing Agreement dated December 19, 1997, between
IMagic and Sinister Games, Inc. relating to Shadow Company.
5. Software Licensing Agreement dated November 19, 1998 between
IMagic and Sinister Games, Inc. relating to three future
works.
6. Software Licensing Agreement dated November 20, 1998 between
IMagic and Mirage Media relating to Mortyr.
7. Software licensing agreement concluded with BATTLEFIELD DESIGN
GROUP (December 19, 1997) for ROAD TO MOSCOW (working title)
8. Software licensing agreement concluded with LUMIS STUDIOS, INC
(October 15, 1998) for WALL STREET TYCOON
9. Software licensing agreement concluded with STARDOCK SYSTEMS,
INC (November 30, 1998) for Monopolization
