EXHIBIT 10.8
June 30, 2008
OPTION EXERCISE NOTICE AND AGREEMENT
VIA FACSIMILE ((000) 000-0000), EMAIL AND FEDEX COURIER
Interplay Entertainment Corp.
000 Xxxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: CEO
with a copy (via facsimile only) to:
Interplay Entertainment Corp.
Legal Department
000-000-0000
Re: EXERCISE OF PURCHASE OPTION
Dear Sirs:
This option exercise notice ("OPTION EXERCISE AGREEMENT"), dated
effective on the date written above (the "EFFECTIVE DATE") shall serve to inform
Interplay Entertainment Corp. ("INTERPLAY") that Atari Interactive, Inc. ("ATARI
INTERACTIVE" and, collectively with Interplay, the "PARTIES") hereby elects to
exercise its option to purchase intellectual property rights with respect to the
D&D Game IP (the "OPTION") for the sum of One Million Fifty Thousand Dollars
(the "PURCHASE PRICE") to be paid in the form of the Note Forgiveness (as
defined hereinbelow) pursuant to the Option Agreement to Purchase Intellectual
Property Rights dated November 11, 2005, including Amendments 1, 2 and 3
thereto, between Interplay and Atari Interactive (the "PURCHASE OPTION
AGREEMENT"). Attached hereto as EXHIBIT A is a true and correct copy of said
document.
In connection with the foregoing option exercise, the Parties hereby
agree as follows:
1. Notwithstanding the expiration of the Option Period, Interplay
hereby (i) confirms and agrees that this Option Exercise
Agreement constitutes a full, valid and effective exercise of
the Option, (ii) to the extent required for a full, effective
and valid exercise of the Option, consents to an automatic
extension of the Option Period, and (iii) waives any objection
or claim in connection with any (if any) untimeliness or
deemed untimeliness in the exercise of the Option by Atari
Interactive.
2. Reference is made to the letter dated March 14, 2008 (the
"AITD LETTER") from Herve Caen, Interplay CEO, to Atari
Interactive and certain of its affiliates regarding the
forthcoming sequel to Alone in the Dark, working title "Alone
in the Dark" (the "2008 AITD GAME"). Notwithstanding anything
in the AITD Letter to the contrary, Interplay hereby waives
any and all of its claims, rights, liens, encumbrances and
causes of action with respect to any intellectual property
rights or other rights in or to, or used in connection with
(i) the 2008 AITD Game or (ii) the "Alone in the Dark"
franchise.
3. Reference is made to the letter dated March 14, 2008 (the "SLA
LETTER") from Herve Caen, Interplay CEO, to Atari Interactive
and certain of its affiliates regarding November 3, 2005
Software License Agreement between and among Interplay, Atari
Interactive and Atari Europe SASU with respect to the
licensing of certain product provided on Appendix 1 thereof
relating to Baldur's Gate, Baldur's Gate 2, Baldur's Gate Dark
Alliance, Baldur's Gate Dark Alliance 2, Icewind Xxxx and
Planescape (the "SLA"). Notwithstanding anything in the SLA
Letter to the contrary, to the extent that the SLA Letter
constitutes a notice from Interplay of any alleged breach of
the SLA by Atari Interactive and/or Atari Europe SASU,
Interplay hereby cancels, revokes and withdraws such notice of
alleged breach of the SLA, with prejudice. In addition,
Interplay hereby forever irrevocably waives, and releases
Atari Interactive and its affiliates, including Atari Europe
SASU, from, any and all claims, demands, causes of action and
other liability arising under or in connection with or
relating to the SLA.
4. For the avoidance of doubt, concurrent with the execution of
this document, and as a condition to Atari Interactive's
delivery of the Note Forgiveness, Interplay shall deliver the
following items, each executed by a duly authorized officer of
Interplay (collectively, the "INTERPLAY CLOSING
DELIVERABLES"):
a. an assignment and assumption agreement, in the form
attached hereto as EXHIBIT B, with respect to the
assignment by Interplay to Atari Interactive of the
Assigned Contracts (as defined in Section 1(a) of the
Purchase Option Agreement);
b. a short-form assignment of trademarks in the form
attached hereto as EXHIBIT C; and
c. a short-form assignment of copyrights in the form
attached hereto as EXHIBIT D.
5. Interplay represents and warrants that it has delivered to
Atari Interactive all source codes, object codes,
documentation, archival materials, a/v assets, and marketing
2
or other creative assets in Interplay's possession or control
of, for or relating to any of the D&D Game IP (collectively,
"D&D RELATED ASSETS"), and to the extent that any of the
foregoing have not been delivered to Atari Interactive, they
do not exist. Notwithstanding the foregoing representation and
warranty, in the event that, subsequent to the Effective Date,
Interplay identifies any D&D Related Assets that have not been
delivered to Atari Interactive, Interplay shall promptly
notify Atari Interactive thereof and Atari Interactive shall
have the right to purchase each such item at a cost of One
United States Dollar ($1.00). Interplay represents and
warrants that none of the Assigned Contracts has been amended
since the Effective Date of the Purchase Option Agreement
(i.e., November 11, 2005).
6. Atari Interactive agrees and acknowledges that as between
Atari Interactive and Interplay, Interplay is the sole owner
of the trademark Dark Alliance (Trademark Application No.
77358969) and that Atari Interactive has no claim, either in
trademark, copyright or otherwise, to the Dark Alliance
trademark (as distinct from the BALDUR'S GATE DARK ALLIANCE
trademark) and will not interfere with any efforts by
Interplay to register said trademark.
7. Subject to receipt of the Interplay Closing Deliverables,
concurrent with execution of this document Atari Interactive
shall deliver the following item, each executed by a duly
authorized officer of Atari Interactive: Atari Interactive
shall deliver to Interplay a signed instrument reasonably
acceptable to Interplay reflecting full and final forgiveness
and cancellation by Atari Interactive of any balance due to
Atari Interactive from Interplay pursuant to the Interplay
Note dated August 19, 2004, a true and correct copy of the
note of forgiveness which is attached hereto as EXHIBIT E (the
"NOTE FORGIVENESS"). Interplay and Atari acknowledge and agree
that the Purchase Price shall be deemed to be paid in full
upon receipt by Interplay of the Note Forgiveness.
8. Subsequent to the Closing, and promptly upon reasonable
request by Atari Interactive, Interplay will cooperate with
Atari Interactive in obtaining the Console Manufacturer
Authorization Letters. Atari Interactive shall be responsible
for preparing any such authorization letter in a form
reasonably acceptable to Interplay.
9. Atari Interactive hereby waives the requirement that Interplay
deliver the Snowblind Consent or Bioware Consent upon Closing,
provided that Interplay shall cooperate with Atari Interactive
subsequent to Closing in obtaining such consents.
10. In the event of a conflict between this Option Exercise
Agreement and the Purchase Option Agreement, the terms of the
Purchase Option Agreement shall control.
11. The Closing shall be deemed completed upon execution of this
document by both Parties.
3
12. Capitalized terms in this Option Exercise Agreement have the
same meaning as given to them in the Purchase Option
Agreement. The notice, governing law and jurisdictional
provisions of the Purchase Option Agreement shall also apply
to this Option Exercise Agreement, and are expressly
incorporated herein.
Sincerely,
ATARI INTERACTIVE, INC.
By:
-----------------------------------
Xxxxxxxx Xxxxxxxx-Grivel
Senior Vice President Legal Affairs
Date signed:
ACCEPTED AND AGREED:
INTEPLAY ENTERTAINMENT CORP.
By: ________________________________
Title: _____________________________
Date signed: _______________________
4
EXHIBIT A
TRUE AND CORRECT COPY OF PURCHASE OPTION AGREEMENT
Attached.
5
EXHIBIT B
SHORT-FORM ASSIGNMENT AND ASSUMPTION AGREEMENT
Attached.
6
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreement") is made and
entered into effective as of July 24, 2008 (the "Effective Date"), by and
between Atari Interactive, Inc., a Delaware corporation ("Purchaser") and
Interplay Entertainment Corp., a Delaware corporation ("Seller").
RECITALS
A. Reference is made to the Option Agreement to Purchase
Intellectual Property Rights between Seller and Purchaser, entered into as of
November 11, 2005 (the "Purchase Option Agreement") and the option exercise
agreement between Purchaser and Seller of even date herewith (the "Option
Exercise Agreement").
B. Pursuant to the Purchase Option Agreement, Seller has agreed
to assign to Purchaser the Assigned Contracts (among other purchased assets,
including the D&D Game IP) and Purchaser has agreed to assume the Assigned
Contracts (excluding any liabilities with respect to the period prior to the
Effective Date) under such Purchase Option Agreement; and
C. The parties desire to set forth their understandings in
writing with respect to the assignment and assumption of such agreements,
obligations and liabilities.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and in the Purchase Option Agreement and Option Exercise
Agreement, and for other good and valuable consideration, the receipt of which
is hereby acknowledged, Seller and Purchaser hereby agree as follows:
1) ASSIGNMENT AND POWER OF ATTORNEY. Seller hereby sells,
assigns, conveys, transfers and sets over to Purchaser all of Seller's right,
title and interest in and to the Assigned Contracts. Seller hereby irrevocably
constitutes and appoints Purchaser, and its successors and assigns, as its
attorney-in-fact, with full power of substitution, in its name or otherwise, on
behalf of Seller for Purchaser's use, to claim, demand, collect, and receive at
any time and from time to time any and all of the Assigned Contracts hereby
sold, assigned and transferred.
2) ASSUMPTION OF CONTRACTS AND ASSUMED LIABILITIES. Purchaser
hereby accepts the assignment to it of all of Seller's right, title and interest
in and to the Assigned Contracts and Purchaser assumes and agrees to be bound by
the Assigned Contracts and to keep, perform, discharge and fulfill each and all
of the covenants, agreements, terms, provisions, conditions and obligations
required to be kept, performed and fulfilled by Seller under the Assigned
Contracts from and after the Effective Date, including without limitation the
making of all payments under the Assigned Contracts with respect to the period
from and after the Effective Date as and when the same are due and payable.
Purchaser shall assume all liability related to the Assigned Contracts
from the Effective Date onward, with the exception of the period from June 30,
2008 through July 24, 2008, for which time period Seller agrees to assume all
liability, should any such liability arise.
7
3) DEFINED TERMS. Capitalized terms used in this Agreement, and
not defined herein, shall have the meanings given them in the Purchase Option
Agreement.
4) BINDING AGREEMENT. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns.
5) PURCHASE OPTION AGREEMENT. Seller and Purchaser, by each of
their execution of this Agreement, each hereby acknowledges and agrees that the
terms and provisions of the Purchase Option Agreement and the Option Exercise
Agreement shall apply to this Agreement, and the terms and conditions of this
Agreement shall be construed consistently therewith.
6) EFFECTIVE DATE. This Agreement shall be deemed effective for
all purposes as of the Effective Date.
7) GOVERNING LAW. This Agreement shall be interpreted in
accordance with the substantive laws of the State of New York applicable to
contracts made and to be performed wholly within said State.
8) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and shall bind the
signatory, but all of which shall constitute one and the same instrument. This
Agreement may be executed via facsimile.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
8
IN WITNESS WHEREOF, the undersigned parties have executed this
Assignment and Assumption Agreement as of the date first written above.
ATARI INTERACTIVE, INC. ("PURCHASER")
By:_________________________________
Its:_________________________________
INTERPLAY ENTERTAINMENT CORP. ("SELLER")
By:_________________________________
Its:_________________________________
9
EXHIBIT C
SHORT-FORM ASSIGNMENT OF TRADEMARKS
Attached.
10
UNITED STATES OF AMERICA
SHORT FORM TRADEMARK ASSIGNMENT
This Short Form Trademark Assignment is subject to all the terms and conditions
of that certain Option Agreement to Purchase Intellectual Property Rights,
between Atari Interactive, Inc., a Delaware corporation with its principal
office located at 000 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("ATARI
INTERACTIVE"), and Interplay Entertainment Corp., a Delaware limited liability
company with its principal office located at 000 Xxxxxxxx Xxxxx, Xxxxxxx Xxxxx,
XX 00000 ("INTERPLAY") entered into as of November 11, 2005 (the "PURCHASE
OPTION AGREEMENT") and the option exercise agreement between Atari Interactive
and Interplay of even date herewith. In the event of a conflict between this
Short Form Trademark Assignment and either the Purchase Option Agreement or the
Option Exercise Agreement, the terms of the Purchase Option Agreement or the
Option Exercise agreement, as the case may be, shall control.
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Interplay hereby sells, assigns, grants, transfers and
conveys to Atari Interactive all of Interplay's right, title and interest of
every kind and nature throughout the universe in perpetuity in and to all of the
Trademarks (as defined in the Purchase Option Agreement) set forth on SCHEDULE 1
attached hereto and incorporated herein by this reference.
Interplay's sale, assignment, grant, transfer and conveyance of its rights in
and to the Trademarks shall include, without limitation, all rights that may now
or hereafter be vested in or controlled by Interplay or any Affiliate (as
defined in the Assignment Agreement) of Interplay, together with all national,
foreign and state registrations, applications for registration and renewals and
extensions thereof and all common law rights; all goodwill associated therewith;
and all benefits, privileges, causes of action, remedies and (with respect
solely to the period as from the date of this Short Form Trademark Assignment)
liabilities relating to any of the foregoing, whether before or hereafter
accrued (including, without limitation, the exclusive rights to apply for and
maintain all such applications, registrations, renewals and/or extensions; to
sue for all past, present or future infringements or other violations of any
rights in the Trademarks; and to settle and retain proceeds from any such
actions), and any and all of Interplay's or any Affiliate of Interplay's other
right, title and interest of every kind and nature whatsoever in and to the
foregoing.
IN WITNESS WHEREOF, a duly authorized officer of Interplay has executed this
Short Form Trademark Assignment on July 24, 2008.
INTERPLAY ENTERTAINMENT CORP.
By:
---------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
11
Interplay Entertainment Corp.
Option Exercise and Waiver
July 24, 2008
Page 2
UNITED STATES OF AMERICA
STATE OF ___________________________________
COUNTY OF ________________________________
On this ________________ day of ___________________, 2006, before me,
-----------------------------------------------------------------,
(NAME, TITLE OF OFFICER - E.G., "XXXX XXX, NOTARY PUBLIC")
personally appeared __________________________________________________________
(NAME OF SIGNER)
personally known to me - or proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
-------------------------------------------------
(Signature of Notary)
12
SCHEDULE I TO ASSIGNMENT OF TRADEMARKS
TRADEMARKS
---------------------------- ----------------- ----------- -------------- --------------
APPLICATION REGISTRATION
TRADEMARK TERRITORY CLASS NUMBER NUMBER
---------------------------- ----------------- ----------- -------------- --------------
Baldur's Gate Throne of USA 9 78066852
Bhaal
---------------------------- ----------------- ----------- -------------- --------------
Baldur's Gate Dark Alliance USA 9 78050716
---------------------------- ----------------- ----------- -------------- --------------
Planetscape: Torment USA 9 76026377
---------------------------- ----------------- ----------- -------------- --------------
Throne of Bhaal USA 9 78066854
---------------------------- ----------------- ----------- -------------- --------------
13
EXHIBIT D
SHORT-FORM ASSIGNMENT OF COPYRIGHTS
Attached.
14
ASSIGNMENT OF COPYRIGHTS
The undersigned, as the duly authorized agent and on behalf of
Interplay Entertainment Corp., a Delaware corporation located and doing business
at 000 Xxxxxxxx Xxxxx, Xxxxxxx Xxxxx, XX 00000, which is the sole author of the
works listed in the attached Schedule I incorporated herein by reference, for
good and valuable consideration, receipt of which is hereby acknowledged, hereby
sells, assigns, and sets over to Atari Interactive, Inc., a Delaware corporation
with its principal place of business at 000 Xxxxx Xxx., Xxx Xxxx, XX 00000, all
right, title and interest in and to the works, all copyrights inuring to the
works, including all renewals and extensions of such rights that may be secured
under the laws now or hereafter in force and effect in the United States of
America or in any other country or countries, including the right to sue for
past, present and future infringement.
DATED this July 24, 2008.
INTERPLAY ENTERTAINMENT CORP.
By:_________________________________
Print Name:
15
State of [ ] )
) ss.
County of ________________)
I certify that I know or have satisfactory evidence that
___________________________ is the person who appeared before me, and said
person acknowledged that he signed this instrument, on oath stated that he was
authorized to execute the instrument, and acknowledged it as the
______________________________ of INTERPLAY ENTERTAINMENT CORP. to be the free
and voluntary act of such party for the uses and purposed mentioned in the
instrument.
Dated__________________________________________
-----------------------------------------------
Notary Public
My appointment expires ________________________
16
SCHEDULE I
TO ASSIGNMENT OF COPYRIGHTS
---------------------------------------------------------- --------------------
NAME REGISTRATION #
---------------------------------------------------------- --------------------
Baldur's Gate (registered by Bioware) TX4-922-293
---------------------------------------------------------- --------------------
Baldur's Gate: Sword Coast (registered by Bioware) TX4-955-063
---------------------------------------------------------- --------------------
Icewind Xxxx PA 973-370
---------------------------------------------------------- --------------------
Planetscape: Torment TX5-085-749
---------------------------------------------------------- --------------------
17
EXHIBIT E
FORM OF NOTE FORGIVENESS
Attached.
18
June 30, 2008
FORGIVENESS OF PROMISSORY NOTE
VIA FACSIMILE ((000) 000-0000), EMAIL AND FEDEX COURIER
Re: Option Agreement to Purchase Intellectual Property Rights dated
November 11, 2005, including Amendments 1, 2 and 3 thereto, between
Interplay Entertainment Corporation ("INTERPLAY") and Atari
Interactive, Inc. ("ATARI INTERACTIVE") (the "PURCHASE OPTION
AGREEMENT")
Dear Sirs:
Reference is made to the Purchase Option Agreement.
Please be advised that, in accordance with the provisions of the Purchase Option
Agreement, Atari Interactive hereby forgives, releases and forever discharges
Interplay's Demand Promissory Note, dated August 19, 2004 and any obligations
thereunder, issued in favor of Atari Interactive (the "INTERPLAY NOTE"), which
Interplay Note is hereby deemed to be fully paid and satisfied as a result of
the completion of the transactions contemplated by the Purchase Option
Agreement, effective as of the date first written above.
Sincerely yours,
ATARI INTERACTIVE, INC.
By: _______________________
Name:
Title:
Date signed:
19
