EXHIBIT 10.2
September 14, 2001
Xx. Xxxxx Xxxx
President
Interplay Entertainment Corporation
00000 Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
RE: AMENDMENT #1 TO THE DISTRIBUTION AGREEMENT DATED AUGUST 23, 2001
Dear Mr. Caen
This letter when completely executed shall constitute an amendment
("Amendment #1") to the Distribution Agreement dated August 23, 2001 by and
between Vivendi Universal Interactive Publishing North America, Inc.
("Universal") and Interplay Entertainment Corporation ("Interplay") (the
"Agreement").
THE AGREEMENT SHALL BE AMENDED IN THE FOLLOWING RESPECTS ONLY:
1) Section 5.3 of the Agreement shall be modified to read as follows:
"5.3 TITLE AND RISK OF LOSS: Title to Product units shall remain with
Interplay until delivery to UNIVERSAL'S customers. Risk of loss for units of
Interplay Manufactured SKUs shall pas to UNIVERSAL from Interplay upon delivery
at UNIVERSAL's distribution center. Risk of loss of units of UNIVERSAL
Manufactured SKUs (i) shall remain with UNIVERSAL until delivery to UNIVERSAL's
customers for units of UNIVERSAL Manufactured SKUs distributed by UNIVERSAL
hereunder, and (ii) shall pass to Interplay from UNIVERSAL upon delivery at
Interplay's distribution center for units of UNIVERSAL Manufactured SKUs
distributed by Interplay pursuant to Section 2.6 above. For Product units
returned to UNIVERSAL by UNIVERSAL's customers for which title has passed to
such customers, title will pass from the customer to Interplay upon delivery to
UNIVERSAL; provided that risk of loss for such Products will remain with
UNIVERSAL until re-delivery to Interplay or re-delivery to any subsequent
customers of returned Product units."
2) Section 6.1 of the Agreement shall be modified to read as follows:
"6.1 PRICE: The proceeds payable by UNIVERSAL to Interplay for units
of any Product distributed by UNIVERSAL (the "INTERPLAY PROCEEDS") shall be the
price at which UNIVERSAL sells such Product units to its customers (the
"PRICE"), less the following amounts only:
(i) ***
(ii) ***
(iii) ***
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*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
(iv) ***
(v) ***
The balance shall be payable to interplay as Interplay Proceeds.
UNIVERSAL will have the right to determine the Price for each Product
in its sole discretion (which will include UNIVERSAL's standard Included Fees
and Charges as specified by UNIVERSAL), and may revise the Price for any Product
by customer from time to time, subject to the provisions of Section 6.5 below.
At the time of the fist commercial shipment of each product, in order to convey
to consumers the high quality of the Product, Interplay will set the Price
within the range of then-standard dealer price levels for "front-line"
interactive entertainment software products of comparable quality and sales
potential. Any change in the Price of any Product will become effective as to
UNIVERSAL *** days after the date of Interplay's written notice to UNIVERSAL of
the Price change or earlier as may be mutually agreed upon by the parties.
UNIVERSAL will incorporate a change in Price of a Product in UNIVERSAL's next
published price list.
Notwithstanding the foregoing, in no event shall the Interplay
Proceeds be less than *** dollars ($***) with respect to each unit of console
Platform Products and less than *** dollars and *** cents ($***) with respect to
each unit of PC Platform Products. The foregoing sentence shall not apply with
respect to ***. The first sentence of this paragraph shall not apply to any
Product ***. Furthermore, the first sentence of this paragraph shall not apply
with respect to Products which are ***. By way of clarification, the minimum
Interplay Proceeds stated in this paragraph will apply for the first ***."
3) The second sentence of Section 6.5(a), "Price Protection and Post-Sale
Markdowns," shall be modified to read as follows:
"Interplay and Universal shall mutually determine (in good faith)
the extent of any price protection or post-sale markdown deductions extended to
any Products."
The remainder of such Section shall remain unchanged.
4) Section 6.10, "COLLECTIONS AND BAD DEBT," shall be modified to read as
follows:
"COLLECTIONS AND BAD DEBT. By way of clarification, UNIVERSAL will be
responsible for all risk of collection of amounts owed by UNIVERSAL's customers
as a result of UNIVERSAL's activities under this Agreement, and UNIVERSAL will
not deduct any bad debt expenses or associated write-offs incurred as a result
of its activities under this Agreement. ***"
5) Section 2 of Exhibit C, "Escrow Instructions" shall be modified to
read as follows:
"Agent is authorized to disburse the Funds to Interplay within ***
business days of receipt of the complete executed version of this Amendment #1."
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*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
Each Party (and the officers executing on its behalf) represents and
warrants that it has the required authority and capacity to enter into this
Amendment. All corporate and other actions required to be taken by either Party
to authorize the execution, delivery and performance of this Amendment and all
transactions contemplated by this Amendment have been duly and effectively
taken. Upon the full execution and delivery of this Amendment, this Amendment
will become a valid, binding and enforceable obligation upon both Parties.
Subject to the foregoing, all other terms and conditions of the Agreement
and its Exhibits shall remain in full force and effect.
ACCEPTED AND AGREED,
/S/ XXXX X'XXXX /S/ HERVE CAEN
------------------------------- -----------------------------------
Vivendi Universal Interactive Interplay Entertainment Corporation
Publishing North America, Inc.
cc: Xxx Xxxxxx (Stradling, Yocca, Xxxxxxx & Xxxxx),
Xxxxx Xxxxx (Interplay)
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*** Terms represented by this symbol are considered confidential. These
confidential terms have been omitted pursuant to a Confidential Treatment
Request filed with the Securities and Exchange Commission ("SEC") and have been
filed separately with the SEC.
