EX1A-6 MAT CTRCT 7 f1a1215ex6ii_figpublishing.htm LICENSE AGREEMENT BETWEEN DOUBLE FINE PRODUCTIONS, INC. AND FIG GRASSLANDS, LLC. VIDEO GAME LICENSE AGREEMENT
Exhibit 6.2
This Video Game License Agreement (this “Agreement”), dated as of December 3, 2015 (“Effective Date”), is entered into between Double Fine Productions, Inc., a California corporation (“Developer”), with its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and Fig Grasslands LLC, a Delaware limited liability company (“Licensee”), with its principal place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. This Agreement supersedes in its entirety the Video Game License Agreement, dated September 23, 2015, entered into between Developer and a corporate affiliate of Licensee. Developer and Licensee may be referred to individually as a “Party” and collectively as the “Parties.”
INTRODUCTION
A. Developer is the owner of all Intellectual Property Rights (as defined below) in and to the Licensed Game (as defined below), which is being developed by Developer for the Platforms (as defined below).
B. Licensee is a publisher and distributor of video games.
C. Licensee’s parent, Fig Publishing, Inc. (“Fig Publishing”), is raising funds through ▇▇▇.▇▇, an investment crowdfunding platform affiliated with Fig Publishing, and wishes to provide funding to the Developer to complete development of the Licensed Game.
D. Licensee wishes to license the Licensed Game from Developer, and Developer wishes to license the Licensed Game to Licensee, to exploit the Licensed Game on the Platforms in accordance with the following terms and conditions.
1. | DEFINITIONS. |
In addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings set forth below:
1.1. | “Adjusted Gross Revenue” means gross revenues actually received by Licensee from the exploitation of the Licensed Game by any Co-Publisher less: |
(a) | any and all (i) payment processing charges, credit card charges, chargebacks, returns, disputed charges, fraudulent charges and/or bad debt; (ii) excise, sales, value added or comparable or similar taxes; and (iii) distributor fees (by way of example, any fees or charges by Steam or other digital distribution platforms), in each case attributable to Licensee’s exploitation of the Licensed Game (collectively, the “Selling Expenses”); and |
(b) | the payment of the Service Fee described in Section 4.7. |
1.2. | “Co-Publisher” means the Developer, the Licensee and any other party granted a license to exploit the Licensed Game on the Platforms. |
1.3. | “Crowdfunding Target” means Three Million Three Hundred Thousand Dollars ($3,300,000) as an aggregate amount of (i) the amounts raised through the Developer’s rewards crowdfunding campaign conducted on ▇▇▇.▇▇ and (ii) the amounts raised by Fig Publishing through its investment crowdfunding campaigns for the Licensed Game conducted on ▇▇▇.▇▇. Achievement of the Crowdfunding Target shall be determined by Licensee. |
1.4. | “Defect” means an error, bug, defect malfunction, failure, nonconformity or other deficiency in the operation of the Licensed Game. |
1.5. | “Developer Brand Features” means the trademarks, trade names, service marks, service names and logos proprietary to Developer in connection with or related to the Licensed Game. |
1.6. | “Developer Payments” has the meaning given in Section 2.6 below. |
1.7. | “DLC” means downloadable additional content or expansions to a video game which require the installation and license of such video game to be played by an end user. |
1.8. | “Game Funding Payment” has the definition set forth in Section 4.1 below. |
1.9. | “Intellectual Property Rights” means, with respect to any item, any and all now known or hereafter known (i) rights associated with works of authorship throughout the universe, including but not limited to copyrights and moral rights, (ii) trademark and trade name rights and similar rights, (iii) trade secret rights, (iv) patents, designs, and other industrial property rights, (v) all other intellectual property and industrial property rights, and (vi) all registrations, applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing). |
1.10. | “Fig Publishing” means Fig Publishing, Inc., which is the Licensee’s parent. The Licensee is wholly owned by Fig Publishing. |
1.11. | “Fig Publishing Rev Share” has the meaning set forth in Section 4.1 below. |
1.12. | “Licensed Game” means each version of the video game identified and described on Exhibit A for use with each of the Platforms, including updates and enhancements but excluding any DLC thereto. |
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1.13. | “Licensee Brand Features” means the trademarks, trade names, service marks, service names and logos proprietary to Licensee. |
1.14. | “Open Source” means any software that requires as a condition of use, modification and/or distribution of such software that such software or other software incorporated into, derived from or distributed with such software: (i) be disclosed or distributed in source code form; or (ii) be redistributable at no charge. Open Source includes, without limitation, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (a) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL), (b) the Artistic License (e.g., PERL), (c) the Mozilla Public License, (d) the Netscape Public License, (e) the Sun Community Source License (SCSL), (f) the Sun Industry Source License (SISL), and (g) the Apache Server license. |
1.15. | “Platforms” means any and all personal computer, mobile, tablet, video game console, interactive television and any other operating system on which video games are played, whether now known or hereafter devised, including but not limited to Microsoft Windows operating systems, Microsoft Xbox 360, Xbox One, Sony PlayStation 3, PlayStation 4 and Vita, Nintendo Wii, Wii-U, DS and 3DS. Apple Macintosh, OS X and iOS operating systems, Google Android operating system, and Linux operating system, and all future versions of each of the foregoing. |
1.16. | “PC Platforms” means only those Platforms designed for personal computer operating systems, including but not limited to: Microsoft Windows, Apple Macintosh, OS X and Linux. |
2. | LICENSE GRANT; OWNERSHIP. |
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The Developer agrees that Platform Agreements shall establish fair, just and equitable market rates, and arms-length prices in such dealings, which shall be created on a reasonable and empirically justifiable basis. Developer shall provide a statement detailing Licensed Game Revenues received pursuant to Platform Agreements according to a form provided to Developer by Licensee. Developer acknowledges and agrees that Developer’s failure to comply with the provisions of this Section 2.6 would be a material breach of this Agreement and an infringement of Licensee’s Intellectual Property Rights.
Licensed Game Revenue shall not include revenues received by the Developer pursuant to its rewards crowdfunding campaigns for the Licensed Game conducted on ▇▇▇.▇▇.
3. | DEVELOPER & LICENSEE OBLIGATIONS. |
3.3. | Cooperation. |
3.3.1. | Licensee’s affiliate, Loose Tooth Industries, Inc. (“Fig Holdings”), will be responsible for proposing a rewards crowdfunding campaign for the Licensed Game and coordinating said campaign with investment crowdfunding campaigns to be conducted by Fig Publishing. Provided that Developer approves the proposed campaign and has entered into a rewards crowdfunding campaign agreement with Fig Holdings, Licensee will cause Fig Holdings to develop a schedule and summary of said campaigns that Fig Holdings and Licensee will review with Developer. After Developer is in agreement with said schedule and summary and all the dates involved in running the campaigns, Licensee will cause Fig Holdings to commence developing advertising assets based upon assets created by Developer for use by Fig Holdings in the rewards crowdfunding campaign and by Fig Publishing in the investment crowdfunding campaigns. Developer and Licensee further agree that each shall cooperate with the other as reasonably requested from time to time with regard to the marketing, advertising, promotion and distribution of the Licensed Game. Developer acknowledges and agrees that Licensee may delegate any or all of its responsibilities under this Agreement, other than any obligation of Licensee to pay any amount to Developer due hereunder, to Fig Holdings. |
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3.3.2. | Licensee agrees to designate staff no less qualified than its current personnel who will at all reasonable times be available to consult with Developer on business decisions (as contrasted with creative and software development decisions) being made by Developer during the development and following the release of the Licensed Game. Such business decisions shall include the choices of: technology platforms and devices for which the Licensed Game should be developed, languages in which the Licensed Game should be localized, and distribution platforms that should be used. In the performance of the tasks authorized under Section 2.3 above, Licensee shall have the right to approve any agreements proposed by Developer, such approval not to be unreasonably withheld, and if Licensee does not respond to Developer’s proposal of an agreement (sent pursuant to Section 10.5) within three (3) business days the agreement is deemed to be approved by Licensee. |
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4. | REVENUES; PAYMENTS. |
4.2. | Revenue Share. Licensee shall pay Developer the following percentage of Adjusted Gross Revenue (the “Developer Rev Share”) if any, according to the following formula: |
4.2.1. | Until Licensee receives Adjusted Gross Revenue of $13,333,333, the percentage of Adjusted Gross Revenue paid to Developer shall be a percentage equal to: 100% – (2.5 * Fig Publishing Rev Share) |
4.2.2. | After Licensee receives Adjusted Gross Revenue of $13,333,333, the percentage of Adjusted Gross Revenue paid to Developer shall be a percentage equal to: 100% – (Fig Publishing Rev Share) |
By way of example, if the Game Funding Payment were $10,000,000, then the Fig Publishing Rev Share would equal approximately 30%, which is derived from dividing $10,000,000 (up to $10,020,000) by $33,333,333, and under Section 4.2.1 the Licensee would retain approximately 75% of Adjusted Gross Revenue and under Section 4.2.2 the Licensee would retain approximately 30% of Adjusted Gross Revenue. Furthermore, for purposes of clarity, in no event will the Game Funding Payment exceed $15,000,000, and accordingly, in no event will the Fig Publishing Rev Share exceed approximately 45%.
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5. | CONFIDENTIAL INFORMATION |
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6. | REPRESENTATIONS AND WARRANTIES. |
6.2. | Developer Representations and Warranties. In addition to the representations and warranties set forth in Section 6.1, Developer hereby represents and warrants to Licensee that: |
6.2.1. | The Licensed Game is the Developer’s original creation; |
6.2.2. | Developer is the exclusive owner of all rights and interests in the Licensed Game and the Developer Brand Elements and all component parts thereof do not and shall not violate or infringe any Intellectual Property Rights or other proprietary rights of any third party or parties; |
6.2.3. | Developer has obtained all of the rights which are needed in order for Developer to satisfy its obligations hereunder and has the ability, power and permission to grant such rights to Licensee and to make the promises and covenants as are set forth herein; |
6.2.4. | Developer’s execution, delivery and performance of this Agreement does not and shall not conflict with or violate any applicable law, rule or regulation or the terms of any agreement between Developer and any third party; and |
6.2.5. | The Licensed Game contains no Open Source. Provided, however, that all “MIT licenses” published at any time through the website of the Open Source Initiative, and the UE4 License, are hereby approved by Licensee; and provided, further, that if Developer wishes to include any other Open Source code in the Licensed Game it shall seek permission from Licensee, which permission shall not be unreasonably withheld or delayed. |
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7. | TERM AND TERMINATION. |
7.5. | Survival. Sections 1, 2 (unless this Agreement is terminated pursuant to Section 7.2 or pursuant to Section 7.3 by Developer), 4 (unless this Agreement is terminated pursuant to Section 7.3 by Licensee), 5, 6, 7.4 and 8 through 10 shall survive the termination or expiration of this Agreement. In addition, following expiration or termination of this Agreement, the rights and licenses granted by Developer to Licensee shall survive, solely to permit the distribution of the Licensed Game to end users who purchased the Licensed Game or other persons who have been permissibly distributed the Licensed Game prior to the expiration or termination. The Parties acknowledge and agree that this Agreement includes a “license of intellectual property” and is and shall be subject to Sections 365(n) of the United States Bankruptcy Code, and that each party shall be entitled to all rights and benefits of such sections in accordance with its terms and conditions. |
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8. | INDEMNIFICATION. |
9. | LIMITATIONS ON LIABILITY. |
TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, SHALL LICENSEE BE LIABLE TO DEVELOPER OR ANY AFFILIATE OF DEVELOPER OR ANY OTHER PERSON FOR (I) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER EVEN IF LICENSEE SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES; OR (II) ANY AMOUNT IN EXCESS OF THE TOTAL AMOUNT PAID BY LICENSEE TO DEVELOPER UNDER THIS AGREEMENT TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH A CLAIM GIVING RISE TO LIABILITY IS MADE, EXCEPT WITH RESPECT TO DEVELOPER’S INDEMNIFICATION OBLIGATION WITH RESPECT TO THIRD PARTY INTELLECTUAL PROPERTY CLAIMS UNDER SECTION 6.2.2, WHICH CLAIMS SHALL NOT BE SUBJECT TO ANY CAP ON LIABILITY. EACH PARTY ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT.
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10. | GENERAL. |
10.1. | Governing Law and Jurisdiction. This Agreement shall be governed by and interpreted under the laws of the State of California, without reference to its choice of laws principles. The Parties expressly understand and agree that any dispute arising under this Agreement will be brought exclusively in the state or federal courts within the County of San Francisco, California and the Parties hereby consent to the exclusive personal jurisdiction and venue therein. The Parties expressly waive the application of the United Nations Convention on Contracts for the International Sale of Goods to the terms of this Agreement. |
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If to Developer:
Double Fine Productions, Inc.,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Email:
If to Licensee:
Fig Grasslands LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Email: ▇▇▇▇▇▇@▇▇▇.▇▇
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10.11. | Waiver. The failure of either Party to exercise or enforce any of its rights under this Agreement will not act as a waiver, or continuing waiver, of such rights. |
10.13. | Headings. Headings are for convenience only and shall not be considered in interpreting this Agreement. |
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INTENDING TO BE LEGALLY BOUND, the Parties have executed this Agreement by their duly authorized representatives, to be effective as of the date first written above.
Double Fine Productions, Inc. | Fig Grasslands, LLC | |||
By: | /s/ ▇▇▇ ▇▇▇▇▇▇▇ | By: | Fig Publishing, Inc., in its capacity | |
Name: | ▇▇▇ ▇▇▇▇▇▇▇ | as sole member of the Licensee | ||
Title: | CEO | |||
By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
Title: | CEO |
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Exhibit A
The Licensed Game
Psychonauts 2
Grasslands will be a sequel to one of the Grasslands Developer’s most successful games, Psychonauts. The original game, released in 2005, follows the story of a young psychic named Razputin in his quest to join an elite group of international psychic secret agents, the Psychonauts. He runs away from the circus and breaks into their secret training facility, Whispering Rock Psychic Summer Camp. As he begins his training by psychically delving inside the consciousnesses of his tutors and those around him, he realizes all is not as it seems, and soon embarks upon a psychic odyssey through a variety of levels set inside the minds of misfits, monsters and madmen.
In Psychonauts 2, Raz will realize his dream and visit Psychonauts Headquarters. However, when he gets there, he will find that it is not the perfect place he expected and will quickly realize that the Psychonauts need him more than he needs them. Psychonauts 2 will feature a new hub world inside Psychonauts HQ. The player will access new mental worlds as Raz peeks inside the minds of a host of new characters who need his help to combat their inner demons and unravel their deep-seated emotional issues. Raz will hone his secret agent psychic abilities — and learn new ones, too — using them to solve mysteries and uncover evil plots.
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Exhibit B
Developer Brand Features
Psychonauts (registered trademark)
Double Fine TM (unregistered trademark
Double Fine Productions TM (unregistered trademark)
Psychonauts 2 TM (unregistered trademark)
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