EXHIBIT 10.1
PURCHASE & SALE AGREEMENT
THIS PURCHASE & SALE AGREEMENT (this "AGREEMENT") is made as of
February 26, 2003 (the "EFFECTIVE Date"), by and between Interplay Entertainment
Corp., a Delaware corporation ("INTERPLAY") and Vivendi Universal Games, Inc., a
Delaware corporation ("VUG").
RECITALS
WHEREAS, Interplay and White Wolf Publishing, Inc., a Georgia
corporation ("WHITE WOLF") are parties to certain Content License Agreement
dated as of February 14, 2001 (the "WHITE WOLF LICENSE"), a copy of which is
attached hereto as EXHIBIT 1, pursuant to which Interplay has the rights to
develop entertainment software products based on the "HUNTER" intellectual
property (as more specifically defined in Section 1.1 of the White Wolf License)
(the "HUNTER FRANCHISE");
WHEREAS, Interplay and High Voltage Software, Inc., an Illinois
corporation ("HIGH VOLTAGE"), are parties to that certain Product Agreement
dated January 25, 2001, as amended by that certain Second Amended & Restated
Amendment Number 1 to Product Agreement dated June, ____ 2002 (the "AMENDMENT
1"), and that certain letter Amendment Number 2 dated February 25, 2003 to be
executed by High Voltage concurrently herewith (collectively, the "HIGH VOLTAGE
DEVELOPMENT AGREEMENT"), a copy of which is attached hereto as EXHIBIT 2,
pursuant to which High Voltage has developed and continues to develop for
Interplay video games based on the Hunter Franchise;
WHEREAS, on the terms and conditions set forth in this Agreement,
Interplay now desires to sell and assign to VUG, and VUG now desires to purchase
and assume from Interplay, all of Interplay's right, title and interest in the
White Wolf License and the High Voltage Development Agreement (each solely to
the extent provided herein), and any other rights Interplay may have in the
Hunter Franchise, except with respect to the following two (2) already-released
video game skus based on the HUNTER FRANCHISE: (i) "HUNTER: THE RECKONING" (on
the Microsoft Xbox platform) and (ii) "HUNTER: THE RECKONING" (on the Nintendo
GameCube platform) (together, the "RESERVED SKUS");
WHEREAS, the parties hereto acknowledge and agree that the Purchase
Price (defined below) constitutes fair consideration and reasonably equivalent
value for Interplay's right, title and interest in and to the Hunter Franchise
and the High Voltage Development Agreement and the obligations incurred or to be
incurred hereunder, in each case, by Interplay to or for the benefit of VUG.
AGREEMENT
NOW, THEREFORE, subject to the mutual covenants contained herein, and
for payment of good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. ASSIGNMENTS.
1.1 ASSIGNMENT OF WHITE WOLF LICENSE. Subject to the terms of
this Agreement, and except with respect to the Reserved Skus, Interplay hereby
sells, transfers and assigns to VUG, and VUG hereby purchases and assumes from
Interplay, any and all of Interplay's right, title and interest in and to, and
obligations under, the White Wolf License. As a condition precedent to this
Agreement, White Wolf shall consent to such assignment in the form attached
hereto in EXHIBIT 3 (the "WHITE WOLF CONSENT"). For purposes of clarification,
and pursuant to the White Wolf Consent and SECTION 1.3, herein, Interplay
*** 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.
shall retain directly from White Wolf all of Interplay's rights and
responsibilities under the White Wolf License (including, without limitation,
any obligation to remit royalties) as necessary to continue to manufacture,
market, sell, distribute and publish the Reserved Skus only.
1.2 ASSIGNMENT OF HIGH VOLTAGE DEVELOPMENT AGREEMENT. Subject
to the terms of this Agreement, and except with respect to (i) the Reserved Skus
and (ii) the video game entitled "BALDUR'S GATE: DARK ALLIANCE" (on the Nintendo
GameCube platform) developed for Interplay by High Voltage under the High
Voltage Development Agreement, Interplay hereby sells, transfers and assigns to
VUG, and VUG hereby purchases and assumes from Interplay, any and all of
Interplay's right, title, interest in and to, and obligations under, the High
Voltage Development Agreement solely as it relates to the video games "HUNTER:
WAYWARD" (on the Sony PS2 platform) and "HUNTER: REDEEMER" (on the Microsoft
Xbox platform) which are currently under development for Interplay by High
Voltage (together, the "HUNTER SEQUEL SKUS")). As a condition precedent to this
Agreement, High Voltage shall consent to such assignment in the form attached
hereto in EXHIBIT 4 (the "HIGH VOLTAGE Consent"). For purposes of clarification,
and pursuant to the High Voltage Consent, Interplay shall retain directly from
High Voltage all of Interplay's rights and responsibilities under the High
Voltage Development Agreement (including, without limitation, any obligation to
remit royalties) necessary to continue to manufacture, market, sell, distribute
and publish the Reserved Skus only. Further (and also and pursuant to the High
Voltage Consent), Interplay shall retain from High Voltage, all of Interplay's
rights and responsibilities under the High Voltage Development Agreement with
respect to all other titles (other than the Hunter Sequel SKUs), including, but
not limited to, "BALDUR'S GATE: DARK ALLIANCE" (on the Nintendo GameCube
platform). By way of clarification, VUG is assuming all obligations in the High
Voltage Development Agreement related to the Hunter Sequel Skus, which shall
include, without limitation, Sections 1.04(f) and (g) of the High Voltage
Development Agreement as they apply to the Hunter Sequel Skus. All other rights
and obligations under the High Voltage Agreement shall at all times remain the
sole responsibility of Interplay. Notwithstanding anything to the contrary
herein, following the execution and delivery of this Agreement, VUG and
Interplay agree to discuss and negotiate in good faith a mutually acceptable
settlement with respect to ***.
1.3 INTERPLAY RETAINS RIGHTS IN THE RESERVED SKUS. For
purposes of clarification, VUG hereby acknowledges and agrees that Interplay
shall retain all license and/or ownership rights necessary for Interplay (or its
successor or assigns) to continue to manufacture, market, sell, distribute and
publish the Reserved Skus (whether individually, as part of compilations, and/or
in "OEM" transactions), in all media, now know or hereafter devised, and VUG
shall have no rights therein (except that VUG shall retain all its distribution
rights to the Reserved Skus in accordance with the existing Video Game
Distribution Agreement dated August 9, 2002, by and between Interplay and VUG,
as amended). Interplay acknowledges and agrees that it shall not have any right
to develop, manufacture, market, sell, distribute and/or publish any add-ons,
expansions, sequels, and/or any other derivatives of the Reserved Skus, except
that Interplay shall be entitled to create abbreviated versions of the Reserved
Skus for purposes of OEM transactions or other exploitation of the Reserved Skus
(except that in no event shall any such abbreviated versions contain any new
assets or gameplay whatsoever).
1.4 ANCILLARY ASSIGNMENT(S). Interplay shall, to the full
extent it has the unilateral right of assignment, assign all other rights,
licenses and obligations directly relating to the Hunter Franchise to VUG
pursuant to the terms and conditions stated herein. Such obligations shall
include, without limitation, any OEM agreements, strategy guide rights,
intellectual property, engine licenses, and other assets, contracts, licenses or
other obligations made by or on behalf of Interplay that could reasonably impact
VUG's ability to exploit the Hunter Franchise, as provided herein. Further,
Interplay hereby grants VUG a limited power of attorney in order to effectuate
the foregoing. To the extent any such assignments require the consent of a third
party, Interplay shall, promptly following the execution of
*** 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.
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this Agreement, in good faith use its best commercially reasonable efforts to
obtain from such third party their consent to such assignment, in a form
reasonably acceptable to VUG. Notwithstanding the foregoing, the White Wolf
Consent and the High Voltage Consent shall be considered conditions precedent to
the execution of this Agreement.
1.5 REMOVAL OF HUNTER FRANCHISE FROM NEW DISTRIBUTION
AGREEMENT. The parties hereto each expressly acknowledge and agree that as a
result of this Agreement and the terms contained herein, that the Hunter Sequel
SKUs shall be deemed to be removed from the distribution agreement between the
parties hereto dated August 9, 2002, as amended (the "NEW DISTRIBUTION
AGREEMENT"), and neither VUG nor Interplay shall incur any liability to the
other in connection with such removal. Further, no titles in (or related to) the
Hunter Franchise (other than the Reserved SKU's) shall be part of or in any way
subject to the terms and conditions of the New Distribution Agreement.
1.6 SATISFACTION/TERMINATION OF LETTER OF INTENT. Each party
hereto expressly acknowledges and agrees that their respective rights and
obligations under that certain Letter of Intent between the parties, dated
February 13, 2003 (the "LOI"), shall be satisfied and all future obligations
thereunder shall be terminated, including, but not limited to, Interplay's right
to have the White Wolf License re-assigned and any restrictions on VUG's use of
the White Wolf License which were part of the LOI. Notwithstanding the
foregoing, Interplay expressly acknowledges and agrees that the $***
consideration contained in the LOI shall only be recouped by VUG under the New
Distribution Agreement against any and all amounts otherwise payable to
Interplay thereunder, including, but not limited to, Interplay Proceeds and/or
Minimum Guarantees (as such terms are defined in the New Distribution
Agreement).
2. DELIVERY OF ASSETS. Within five (5) business days following the
Effective Date, Interplay will deliver to VUG any and all assets and other
materials in its possession relating to the Hunter Sequel Skus and/or relating
to the Hunter Franchise (excluding the Reserved SKU's).
3. PURCHASE PRICE. In full and complete consideration of the foregoing,
VUG hereby agrees to pay to Interplay the total sum of Fifteen Million Dollars
($15,000,000) (the "PURCHASE PRICE"), which amount shall be payable as follows:
3.1 Immediately upon the parties' mutual execution and
delivery of this Agreement (including the High Voltage Consent and the White
Wolf Consent), VUG shall pay to Interplay by wire transfer of immediately
available funds, the sum of *** Dollars ($***); and
3.2 Immediately upon the parties' mutual execution and
delivery of this Agreement (including the High Voltage Consent and the White
Wolf Consent), VUG shall pay to *** (on Interplay's behalf) by wire transfer of
immediately available funds, the sum of *** Dollars ($***) to the following
account:
***
Such amount represents the outstanding amounts due from Interplay to *** as of
the Effective Date pursuant to the terms of the ***; and
3.3 On or before ***, VUG shall VUG pay to Interplay
by wire transfer of immediately available funds, the sum of *** Dollars ($***);
and
*** 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.
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3.4 On or before ***, VUG shall VUG pay to Interplay
by wire transfer of immediately available funds, the sum of *** Dollars ($***);
and
3.5 On or before ***, VUG shall VUG pay to Interplay
by wire transfer of immediately available funds, the sum of *** Dollars ($***);
and
3.6 On or before ***, VUG shall VUG pay to Interplay
by wire transfer of immediately available funds, the sum of *** Dollars ($***);
and
3.7 On or before ***, VUG shall VUG pay to Interplay
by wire transfer of immediately available funds, the sum of *** Dollars ($***).
No other consideration, including any royalties, shall be paid by VUG to
Interplay with respect to the Hunter Franchise or the High Voltage Development
Agreement (excluding the Reserved SKU's); provided, however, that the foregoing
shall not relieve VUG of its obligations to White Wolf and High Voltage under
the White Wolf License and High Voltage Development Agreement, respectively,
with respect to the Hunter Sequel Skus and as described in the White Wolf
Consent and the High Voltage Consent.
4. REPRESENTATIONS AND WARRANTIES.
4.1 BY INTERPLAY. Interplay represents and warrants to
VUG as follows:
4.1.1 Interplay is a corporation validly existing
and in good standing under the laws of the state of Delaware. Interplay has full
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly and validly approved by all requisite corporate action, and no other
corporate proceedings on the part of Interplay are necessary to approve this
Agreement and to authorize and consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by Interplay and
(assuming the due authorization, execution and delivery of this Agreement by
VUG) constitutes a valid and binding obligation of Interplay, enforceable
against Interplay in accordance with its terms;
4.1.2 Interplay has all rights necessary to
perform its obligations hereunder, and Interplay has not pledged or granted a
security interest in the Hunter Franchise (including without limitation the
White Wolf License, the High Voltage Development License, and the Hunter Sequel
Skus) to any person or entity other than VUG;
4.1.3 Interplay is not a defendant to any action,
suit, investigation or proceeding relating to any claim that Interplay's
exploitation of the Hunter Franchise (including without limitation the White
Wolf License, the High Voltage Development License, and the Hunter Sequel Skus)
infringes the proprietary rights of any third person;
4.1.4 Interplay has not licensed or in any other
way authorized any third party to use in any manner any portion of the Hunter
Franchise (including without limitation the White Wolf License, the High Voltage
Development License, and the Hunter Sequel Skus), and, to Interplay's best
knowledge, there is no unauthorized use thereof by any third party;
4.1.5 Interplay's performance of its obligations
herein will not result in the breach of any term or provision of, or constitute
a default under, any agreement by which Interplay is
*** 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.
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bound, nor will such actions result in the violation of any obligation, law,
ordinance, regulation, order or decree applicable to Interplay; and
4.1.6 Interplay shall not commit any act or enter
into any agreement or understanding with any third party which is inconsistent
or in conflict with this Agreement.
4.1.7 Provided VUG timely pays the Purchase Price
in accordance with this Agreement, Interplay is not insolvent, and has no reason
to believe that it will be insolvent at the time it conveys its right, title and
interest in and to the Hunter Franchise and the High Voltage Development
Agreement within five (5) days of the Effective Date as contemplated and will
not be rendered insolvent as a result thereof. Consummating the transactions
contemplated herein will not, after giving effect thereof, result in a situation
where the property remaining with Interplay will be unreasonably small in
relation to its business.
4.2 BY VUG. VUG represents and warrants to Interplay as
follows:
4.2.1 VUG is a corporation validly existing and in
good standing under the laws of the state of Delaware. VUG has full corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly approved by all requisite corporate action, and no other corporate
proceedings on the part of VUG are necessary to approve this Agreement and to
authorize and consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by VUG and (assuming the due
authorization, execution and delivery of this Agreement by Interplay)
constitutes a valid and binding obligation of VUG, enforceable against VUG in
accordance with its terms;
4.2.2 VUG has all rights necessary to perform its
obligations herein;
4.2.3 VUG's performance of its obligations herein
will not result in the breach of any term or provision of, or constitute a
default under, any agreement by which VUG is bound, nor will such actions result
in the violation of any obligation, law, ordinance, regulation, order or decree
applicable to VUG; and
4.2.4 VUG shall not commit any act or enter into
any agreement or understanding with any third party which is inconsistent or in
conflict with this Agreement.
5. INDEMNITIES; LIMITATIONS ON WARRANTIES AND LIABILITIES.
5.1 INDEMNIFICATION. Subject to the limitations and
conditions set forth in this SECTION 5, Interplay and VUG each agree to
indemnify and hold harmless the other and their affiliated companies, and their
respective officers, directors, employees, attorneys and agents, from and
against any and all liabilities, damages, and costs and fees (including
reasonable attorney's fees), for any third party claims or actions arising out
of or relating to any indemnitor's breach or an allegation of the indemnitor's
breach of any of its representations, warranties and covenants made in this
Agreement ("LOSSES AND LIABILITIES"); PROVIDED, HOWEVER, that (i) the indemnitor
shall have been provided with prompt written notice of the assertion of any such
claim and the indemnitor shall have the authority and power to control the
defense and/or settlement thereof, subject to the right of indemnitee to
participate in any such proceeding at its own expense with counsel of its own
choosing, and (ii) the indemnitee shall not agree to
*** 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.
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the settlement of any such claim, action or proceeding without the prior written
consent of the indemnitor, which consent shall not be unreasonably withheld.
5.2 LIMITATION ON LIABILITY. EXCEPT FOR THE RESPECTIVE
INDEMNIFICATION OBLIGATIONS OF EACH PARTY, AS PROVIDED ABOVE, THE LIABILITY OF
EITHER PARTY, IF ANY, FOR DAMAGES FOR ANY CLAIM OF ANY KIND WHATSOEVER AND
REGARDLESS OF THE LEGAL THEORY, SHALL NOT INCLUDE COMPENSATION, REIMBURSEMENT OR
DAMAGES ON ACCOUNT OF THE LOSS OF PRESENT OR PROSPECTIVE PROFITS, EXPENDITURES,
INVESTMENTS OR COMMITMENTS, WHETHER MADE IN ESTABLISHMENT, DEVELOPMENT OR
MAINTENANCE OF REPUTATION OR GOODWILL OR FOR ANY OTHER REASON WHATSOEVER. EXCEPT
AS PROVIDED IN THE IMMEDIATELY PRECEDING SENTENCE, IN NO EVENT SHALL EITHER
PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, EVEN IF
APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING
5.3 LIMITATION ON WARRANTIES. EXCEPT FOR ANY WARRANTIES
EXPRESSLY PROVIDED IN THIS AGREEMENT, EACH PARTY HEREBY DISCLAIMS ANY OTHER
WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
5.4 DEFAULT. If within *** days following receipt of
written notice of a material breach of any of the material terms, covenants,
representations and/or warranties of this Agreement, such breach is not remedied
by the breaching party to the non-breaching party's reasonable satisfaction (or,
except with respect to a payment breach hereunder, within such longer period, up
to *** days, if the nature of the breach is such that it cannot reasonably be
cured within such *** day period), then such breaching party shall be deemed in
"DEFAULT" of this Agreement.
6. MISCELLANEOUS.
6.1 FURTHER ASSURANCES/COOPERATION. Interplay and VUG
will use reasonable efforts to implement the provisions of this Agreement,
including but not limited to the execution and delivery of such other documents
in addition to those required by this Agreement, in form and substance
reasonably satisfactory to the other party, as may be reasonably deemed
necessary to implement any provision of this Agreement.
6.2 SEVERABILITY. Every provision of this Agreement is
intended to be severable. If any term or provision hereof is declared by a court
of competent jurisdiction to be illegal or invalid, such illegal or invalid
terms or provisions shall not affect the other terms and provisions hereof,
which terms and provisions shall remain binding and enforceable.
6.3 CHOICE OF LAW. This Agreement shall be construed,
interpreted and the rights of the parties determined in accordance with the laws
of the State of California (without reference to its choice of law provisions).
6.4 NOTICES. All notices required or permitted under this
Agreement shall be in writing, shall reference this Agreement and shall be
deemed given: (i) when sent by facsimile to the facsimile number set forth below
and confirmed by machine printed receipt with a copy of the notice sent by
registered or certified mail; (ii) five (5) working days after having been sent
by registered or certified mail, return receipt requested, postage prepaid; or
(iii) one (1) working day after deposit with a commercial overnight carrier,
with written verification of receipt. All communications shall be sent to the
*** 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.
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address set forth below, or to such other address as may be designated by a
party by giving written notice to the other party pursuant to this Section:
IF TO INTERPLAY: WITH A COPY TO:
Interplay Entertainment Corp. Interplay Entertainment Corp.
Attention: Chief Executive Officer Attention: Legal Dept.
16815 Xxx Xxxxxx Avenue 00000 Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000 Xxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
IF TO VUG: WITH A COPY TO:
Vivendi Universal Games, Inc. Vivendi Universal Games, Inc.
Attention: Chief Operating Officer Attention: Senior Counsel
0000 Xxxxxx Xxxxx 0000 Xxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx, 00000 Xxx Xxxxxxx, Xxxxxxxxxx, 00000
Telephone: 000-000-0000 Telephone: 000-000-0000
Facsimile: 000-000-0000 Facsimile: 000-000-0000
6.5 ATTORNEY'S FEES. In the event of any litigation
between the parties hereto, the prevailing party shall be entitled to recover
reasonable attorney's fees in addition to other relief as the court may award.
6.6 BOARD APPROVAL. Interplay and VUG acknowledge the
attached Exhibit 5 is a fully-executed copy of a resolution of Interplay's Board
of Directors approving and ratifying the terms and conditions of this Agreement.
6.7 NO OFFSET. Notwithstanding anything to the contrary
in this Agreement or any other agreements between the parties, in no event shall
any amounts due under this Agreement be paid by offset against any amounts due
under any other agreements which may exist between the parties.
6.8 MULTIPLE COUNTERPARTS. This Agreement may be executed
in counterparts and may be delivered by facsimile, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument.
6.9 ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS. This
Agreement, together with all exhibits hereto, constitutes the entire agreement
among the parties pertaining to the subject matter hereof and supersedes all
prior agreements, understandings, negotiations and discussions, whether oral or
written, of the parties. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto. No
amendment, supplement, modification or waiver of this Agreement shall be binding
unless executed in writing by the party to be bound thereby. No waiver of any of
the provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provision hereof (whether or not similar), nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided.
6.10 PRESS RELEASES. VUG and Interplay agree not to issue
any press releases or similar public statements concerning this Agreement
without the prior consent of the other, not to be unreasonably withheld.
*** 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized representatives as set forth below.
INTERPLAY ENTERTAINMENT CORP.
By: /s/ Herve Caen
-------------------------------------
Name: Herve Caen
-----------------------------------
Title: Chief Executive Officer
-----------------------------------
VIVENDI UNIVERSAL GAMES, INC.
By: /s/ Xxxx X'Xxxx
-------------------------------------
Name: Xxxx X'Xxxx
-----------------------------------
Title: President, Partner Publishing Group
-----------------------------------
*** 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.
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