1
EXHIBIT 10.30
THIRD PARTIES AGREEMENT
AGREEMENT dated as of the 6th day of April 1998 between WMS INDUSTRIES INC.
("WMS"), a Delaware corporation, and MIDWAY GAMES INC. ("Midway"), a Delaware
corporation, each with an address at 0000 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000.
W I T N E S S E T H :
WHEREAS, on the date hereof, WMS is distributing (the "Distribution") all
of its shares of Midway's common stock to holders of the shares of WMS' common
stock outstanding on March 31, 1998;
WHEREAS, prior to the Distribution, Midway has been a majority-owned
subsidiary of WMS;
WHEREAS, the parties formerly provided for certain arrangements with
respect to the matters described below pursuant to a Manufacturing and Services
Agreement between WMS and Midway, dated as of July 1, 1996, which agreement has
been terminated; and
WHEREAS, the parties desire to set forth the terms of continuing
arrangements following the Distribution with respect to the matters described
below.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained and intending to be legally bound, the parties hereby agree as
follows:
1. CERTAIN DEFINITIONS. The following terms as used in this Agreement shall
have the meanings set forth below:
1.1 "Midway" means Midway and its subsidiaries, except where the context
otherwise requires.
1.2 "WMS" means WMS and its subsidiaries, except where the context
otherwise requires.
2. THIRD PARTY AGREEMENTS. WMS and Midway are party to numerous arrangements
with third parties with respect to game development, the obtainment or grant of
licenses and other
2
matters which provide for, among other matters, the receipt of payments, the
obligation or guaranty of an obligation to make payments to third parties,
recoupment of prior advances, rights of first refusal and reporting and
monitoring of intellectual property rights ("Third Party Agreements").
Royalties and expenses for external and internal development and fees and
expenses for external licenses applicable to each party's products will be
charged to such party at their cost to the other party. WMS and Midway will
allocate all other rights and obligations under Third Party Agreements, claims,
recoveries, royalties and recoupments, so that Midway will receive the benefit
and bear the burden of such agreements as they relate to video games, and WMS
will receive the benefit and bear the burden of such agreements as they relate
to all other amusement games and gaming devices.
3. EFFECTIVE DATE AND TERM. This Agreement is effective as of April 6, 1998 and
shall continue in effect for so long as any Third Party Agreement shall remain
outstanding.
4. INDEMNIFICATION.
4.1 Each party agrees to indemnify, defend and hold harmless the other (and
its directors, officers, employees and agents) from any loss, damage, claim,
action or proceeding ("Loss") which arises from actions or the failure to act by
such party, asserted by or on behalf of third parties with respect to Third
Party Agreements, other than any Loss caused by the indemnified party's
negligence, fraud or willful misconduct.
4.2 The party required to indemnify pursuant to this Section 4 (the
"Indemnitor"), upon demand by the indemnified party, at the Indemnitor's sole
cost and expense, shall resist or defend any claim, action or proceeding (in the
indemnified party's name, if necessary), using such attorneys as the indemnified
party shall approve, which approval shall not be unreasonably withheld. If, in
the indemnified party's reasonable opinion, there exists a conflict of interest
which would make it inadvisable to be represented by counsel for the Indemnitor,
the parties shall jointly select acceptable attorneys, and the Indemnitor shall
pay the reasonable fees and disbursements of such attorneys.
-2-
3
5. MISCELLANEOUS.
5.1 No waiver by either party of any default shall be effective unless in
writing, nor shall any such waiver operate as a waiver of any other default or
of the same default on any future occasion.
5.2 Each party warrants and represents that proceeding herewith is not
inconsistent in any material way with any contractual obligations, expressed or
implied, undertaken with any third party.
5.3 In the event that any term or provision of this Agreement shall violate
any applicable statute, ordinance or rule of law in any jurisdiction in which it
is used, or otherwise be unenforceable, such provision shall be ineffective in
such jurisdiction only to the extent of such violation without invalidating any
other provision hereof.
5.4 Neither party shall, without the prior written consent of the other,
assign any rights or delegate any obligations under this Agreement, such consent
not to be unreasonably withheld, conditioned or delayed.
5.5 The headings used in this Agreement are inserted only for the purpose of
convenience and reference, and in no way define or limit the scope or intent of
any provision or part hereof.
5.6 This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns. Nothing
herein, expressed or implied, shall be construed to give any other person any
legal or equitable rights hereunder. No person shall be deemed to be a third
party beneficiary of this Agreement. Nothing herein shall be construed to be an
admission or waiver of any rights, claims and defenses the parties may have
against third parties, which rights, claims and defense the parties specifically
reserve.
5.7 All notices and other communications hereunder shall be in writing and
shall be delivered by hand, by facsimile or mailed by registered or certified
mail (return receipt requested) to the parties at the addresses set forth on the
first page of this Agreement (or at such other addresses for a party as shall be
specified by like notice) and shall be deemed given on the date on which such
notice is received.
5.8 Each party hereto shall take such actions and execute such documents and
-3-
4
instruments as may be reasonably requested by the other party to implement the
terms and provisions of this Agreement.
5.9 All controversies and disputes arising out of or under this Agreement
shall be determined pursuant to the laws of the State of Illinois, United States
of America, regardless of the laws that might be applied under applicable
principles of conflicts of laws.
5.10 This Agreement, constitutes the entire understanding between the
parties hereto (and supersedes all prior written or oral communications)
relating to the subject matter covered in this Agreement. No amendment,
modification, extension or failure to enforce any condition of this Agreement by
either party shall be deemed a waiver of any of its rights herein. This
Agreement shall not be amended except by a writing executed by all the parties
hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
WMS INDUSTRIES INC.
By:/s/ Xxxxxx X. Xxxx, Xx.
-----------------------
Xxxxxx X. Xxxx, Xx.
Vice President-Finance
MIDWAY GAMES INC.
By:/s/ Xxxx X. Xxxxxxxx
-----------------------
Xxxx X. Xxxxxxxx
President
-4-
