SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 30, 1999
Interactive Magic, Inc.
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(Exact name of registrant as specified in its charter)
North Carolina
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(State or other jurisdiction of incorporation)
0-29750 56-2092059
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(Commission file Number) (IRS Employer ID Number)
215 Southport Drive, Suite 1000, Morrisville, North Carolina 27560
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 919-461-0722
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NA
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(Former name or former address, if changed since last report)
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Item 2. Acquisition or Disposition of Assets.
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Effective on June 30, 1999 and pursuant to an Agreement Regarding Assignment of
Contracts dated as of May 25, 1999, between Interactive Magic, Inc., a North
Carolina corporation (the "Registrant") and Ubi Soft Entertainment S.A., a
company organized under the laws of France ("Ubi Soft"), the Registrant sold to
Ubi Soft substantially all of the assets of its CD-ROM business operation, less
certain online rights retained by the Registrant, for $2.5 million in cash.
Item 7. Financial Statements and Exhibits.
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(b) Pro Forma Financial Information. At the time of the filing of this
Report, it is impracticable for the Registrant to provide any of the
pro forma financial information required by Item 7 of Form 8-K
promulgated by the Commission under the Exchange Act. Accordingly, the
Registrant will file the required financial statements as soon as
practicable, but not later than September 13, 1999, as required by such
Item 7.
(c) Exhibits.
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10.36 Agreement Regarding Assignment of Contracts dated as of May
25,1999, between the Registrant and Ubi Soft Entertainment S.A.
10.37 Online Rights License Agreement dated effective June 28, 1999
between the Registrant and Ubi Soft Entertainment S.A.
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SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
INTERACTIVE MAGIC, INC.
Date: July 14, 1999 /s/ Michael W. Oliver
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Michael W. Oliver,
Chief Financial Officer
Exhibit 10.36
AGREEMENT REGARDING ASSIGNMENT OF CONTRACTS
BETWEEN
INTERACTIVE MAGIC, INC.
AND
UBI SOFT ENTERTAINMENT S.A.
MAY 25, 1999
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TABLE OF CONTENTS
PAGE NO.
1. DEFINITIONS..........................................................1
2. BASIC TRANSACTION....................................................2
(a) Purchase and Sale of Assets......................................2
(b) Assumption of Liabilities........................................2
(c) Distribution of the Products
(d) Purchase Price...................................................3
(e) The Closing......................................................3
(f) Personnel........................................................4
(g) Conditions to Closing............................................4
(h) Deliveries at the Closing........................................5
3. REPRESENTATIONS AND WARRANTIES OF IMAGIC.............................5
(a) Organization of IMagic...........................................5
(b) Authorization of Transaction.....................................5
(c) Noncontravention.................................................5
(d) Brokers'Fees.....................................................6
(e) Title to Rights Under the Assigned Contracts.....................6
(f) Litigation.......................................................6
(g) Payment Obligations Current......................................5
(i) Disclaimer of other Representations and Warranties...............6
(h) Intellectual Property Rights 6
4. REPRESENTATIONS AND WARRANTIES OF UBI SOFT...........................7
(a) Organization of Ubi Soft.........................................7
(b) Authorization of Transaction.....................................7
(c) Noncontravention.................................................7
(d) Brokers'Fees.....................................................7
5. COVENANTS AND AGREEMENTS.............................................7
(a) General..........................................................7
(b) Litigation Support...............................................7
(c) Transition.......................................................8
6. REMEDIES FOR BREACHES OF THIS AGREEMENT..............................8
(a) Survival of Representations and Warranties.......................8
(b) Indemnification Provisions for Benefit of Ubi Soft...............8
(c) Indemnification Provisions for Benefit of IMagic.................8
(d) Matters Involving Third Parties..................................9
(e) Determination of Adverse Consequences............................9
(f) Exclusive Remedy.................................................9
7. MISCELLANEOUS........................................................9
(a) Press Releases and Public Announcements..........................9
(b) No Third-Party Beneficiaries....................................10
(c) Entire Agreement................................................10
(d) Succession and Assignment.......................................10
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(e) Counterparts....................................................10
(f) Headings........................................................10
(g) Notices.........................................................10
(h) Governing Law...................................................11
(i) Amendments and Waivers..........................................11
(j) Severability....................................................11
(k) Expenses........................................................11
(l) Construction....................................................11
(m) Incorporation of Exhibits and Schedules.........................12
(n) Bulk Transfer Laws..............................................12
(o) Arbitration.....................................................12
(p) Termination.....................................................12
Exhibit A - List of Assigned Contracts
Exhibit B - Form of Bill of Sale and Assignment
Exhibit C - Form of Assignment and Assumption Agreement
Exhibit D - Form of approval by the developers to the assignment of Assigned
Contracts Exhibit E - List of development contracts requiring prior approval
Exhibit F - Statement of payments paid or due to Developers at the Closing
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AGREEMENT REGARDING ASSIGNMENT OF CONTRACTS
This Agreement regarding assignment of contracts (the "Agreement") is
entered into on May 25, 1999, by and between Ubi Soft Entertainment S.A., a
company organized under the laws of France ("Ubi Soft"), and Interactive Magic,
Inc., a North Carolina corporation ("IMagic"). Ubi Soft and IMagic are referred
to collectively herein as the "Parties."
This Agreement contemplates a transaction in which Ubi Soft will
purchase rights under certain development contracts between IMagic and third
party developers (and assume certain liabilities relating thereto) for Cash.
Now, therefore, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties
and covenants herein contained, the Parties agree as follows.
1. DEFINITIONS.
"Adverse Consequences" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, liabilities,
obligations, taxes, liens, losses, expenses and fees, including court costs and
reasonable attorneys' fees and expenses.
"Assigned Contracts" means those certain contracts or agreements to
which IMagic is a party which are identified on Exhibit A as being assigned to
Ubi Soft under this Agreement.
"Assumed Liabilities" means only the following liabilities and
obligations: (I) all liabilities and obligations with respect to, arising out
of, or related to ownership, possession or use of the Assigned Contracts after
the Closing Date; and (II) all obligations of IMagic under the terms of the
Assigned Contracts which by the terms thereof are to be paid, observed,
discharged or performed, as the case may be, at any time after the Closing Date,
but excluding obligations and liabilities arising out of any breach or default
by IMagic under any such Assigned Contract on or prior to the Closing Date.
"Cash" means cash and cash equivalents (including marketable securities
and short term investments) calculated in accordance with GAAP applied on a
basis consistent with the preparation of the Financial Statements.
"Closing" has the meaning set forth in Section 2(e) below.
"Closing Date" has the meaning set forth in Section 2(e) below.
"Employer Liabilities" means any obligation or liability with respect
to any current or former employees, agents or representatives of IMagic.
"GAAP" means United States generally accepted accounting principles as
in effect from time to time.
"IMagic" has the meaning set forth in the preface above.
"Indemnified Party" has the meaning set forth in Section 6(d) below.
"Indemnifying Party" has the meaning set forth in Section 6(d) below.
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"Knowledge" means actual knowledge without independent investigation.
"Party" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation, an
association, a limited liability company, a joint stock company, a trust, a
joint venture, an unincorporated organization, or a governmental entity (or any
department, agency or political subdivision thereof).
"Purchase Price" has the meaning set forth in Section 2(d) below.
"Security Interest" means any mortgage, pledge, lien, encumbrance,
charge or other security interest.
"Taxes" means any federal, state, county, local, foreign and other
taxes (including without limitation income, profits, premium, franchise, excise,
value, use, occupancy, gross receipts, employment, payroll-related or property
tax of any sort) imposed upon IMagic or any consolidated group of which IMagic
is or was a member.
"Third Party Claim" has the meaning set forth in Section 6(d) below.
"Ubi Soft" has the meaning set forth in the preface above.
2. BASIC TRANSACTION.
(a) Purchase and Sale of the Assigned Contracts. On and subject to the
terms and conditions of this Agreement, at the Closing for the consideration
specified below in this Section 2, Ubi Soft agrees to purchase from IMagic, and
IMagic agrees to sell, transfer, convey, assign, grant, confirm, set over and
deliver to Ubi Soft and its successors and assigns forever, free and clear of
all liens and encumbrances: (I) all of its right, title and interest in and to
all of the Assigned Contracts; (II) all prepaid expenses, credits, deferred
charges, rebates, refunds, security and other deposits pertaining to the
Assigned Contracts; (III) the full benefit of all representations, warranties,
guaranties, indemnities, undertakings, certificates, covenants, agreements and
the like, and all security therefor, received by IMagic with respect to the
Assigned Contracts; (IV) all claims, choses in action and rights of recovery
relating to the Assigned Contracts, (V) all of the copyrights, patents,
trademarks, service marks, trade names, applications for any of the foregoing,
mask works, technology, inventions, computer software, data and documentation
(including electronic media), product drawings, trade secrets (technical and
non-technical), know-how, confidential information, deliverables under the
Assigned Contracts and other intellectual property and other proprietary rights
that are owned by IMagic and that has been developed for, or are used in, or
contemplated to be used in, the work and products being developed under the
Assigned Contracts, and licenses or other agreements to or from third parties
regarding the foregoing (collectively, "Intellectual Property").
(b) Assumed and Retained Liabilities.
(I) On and subject to the terms and conditions of this Agreement, upon
the transfer of the Assigned Contracts at the Closing, Ubi Soft agrees to assume
and become responsible for all of the Assumed Liabilities.(II) Notwithstanding
anything to the contrary contained herein, Ubi Soft shall not assume, or in any
way be liable or responsible for, any liabilities, commitments or obligations of
IMagic of any kind or nature whatsoever, known or unknown,
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accrued, fixed, contingent or otherwise, liquidated or unliquidated, choate or
inchoate, due or to become due, except for the Assumed Liabilities. Without
limiting the generality of the foregoing, Ubi Soft shall not assume, and IMagic
shall remain responsible for the following: (a) any liabilities or obligations
with respect to, arising out of, or related to, the Assigned Contracts on or
prior to the Closing Date; (b) any liability or obligation of IMagic for Taxes
accrued for, applicable to or arising from any period, (c) any Employer
Liability; and (d) any present or future claims against IMagic in connection
with the sale, manufacture or distribution of any products manufactured in whole
or in part by, or services provided by, IMagic (collectively, the "Retained
Liabilities"). The assumption by Ubi Soft of the Assumed Liabilities shall not
be construed to defeat, impair or limit in any way any rights or remedies of Ubi
Soft to dispute the validity or amount of any of the Assumed Liabilities.
(c) Distribution of the products developed under the Assigned Contracts
. IMagic certifies and warranties to UBI SOFT that it has not entered into any
distribution agreement relating to the Assigned Contracts. Accordingly, Ubi Soft
shall be free to distribute and commercialize the products to be developed under
the Assigned Contracts as it wishes.
(d) Purchase Price. Ubi Soft agrees to pay to IMagic at the Closing $ 2
500 000 (the "Purchase Price") by delivery of Cash payable by wire transfer or
delivery of other immediately available funds.
(e) The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place before June 30, 1999 at the offices
of Ubi Soft Entertainment Inc., 45 West 25th Street, New York, NY 10 001,
commencing at 9:00 a.m. local time or on such other date or place as the Parties
may mutually determine (the "Closing Date").
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(f) Personnel. Ubi Soft will not retain any employees of IMagic.
(g) Conditions to Closing. (I) Ubi Soft's obligation to consummate this
Agreement is expressly subject to the following conditions (compliance with
which or the occurrence of which may be waived in whole or in part by Ubi Soft):
1. Ubi soft shall have completed its due diligence and legal audit of
the Assigned Contracts and such due diligence and legal audit shall
be satisfactory to Ubi Soft
2. The absence of any action or event to restrain or prohibit, or to
obtain damages or a discovery order in respect of, this Agreement
or the consummation of the transactions contemplated by this
Agreement.
3. All representation and warranties of IMagic shall be true and
correct in all material respects as of the Closing Date.
4. IMagic shall have complied with and duly performed in all material
respects all agreements and conditions on its part to be complied
with and performed pursuant to this Agreement on or before the
Closing Date.
5. Written approval of third party developers , in the form attached
hereto Exhibit D, on the assignment of the Assigned Contracts
entered with such developers listed on Exhibit E.
6. Execution of a license agreement, mutually satisfactory to Ubi
Soft and IMagic, granting IMagic online rights with respect to the
games produced under the Assigned Contracts
7. Approval of this Agreement and the transactions contemplated hereby
by Ubi Soft's Board of Directors
(II) IMagic's obligation to consummate this Agreement is expressly
subject to the following conditions (compliance with which or the occurrence of
which may be waived in whole or in part by IMagic):
1 The absence of any action or event to restrain or prohibit, or to
obtain damages or a discovery order in respect of, this Agreement
or the consummation of the transactions contemplated by this
Agreement.
2 All representation and warranties of Ubi Soft shall be true and
correct in all material respects as of the Closing Date.
3 Ubi Soft shall have complied with and duly performed in all
material respects all agreements and conditions on its part to be
complied with and performed pursuant to this Agreement on or before
the Closing Date
4 Execution of a license agreement, mutually satisfactory to Ubi Soft
and IMagic, granting IMagic online rights with respect to the games
produced under the Assigned Contracts.
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(h) Deliveries at the Closing. At the Closing,
(i) IMagic will execute and deliver to Ubi Soft (A) a Bill
of Sale and Assignment in the form attached hereto as Exhibit B and (B)
such other instruments of sale, transfer, conveyance and assignment as
Ubi Soft and its counsel reasonably may request;
(ii) Ubi Soft will execute and deliver to IMagic (A) an
assumption with respect to the Assumed Liabilities in the form attached
hereto as Exhibit C and (B) such other instruments of assumption as
IMagic and its counsel reasonably may request;
(iii) Ubi Soft will deliver to IMagic the Cash consideration
specified in Section 2(d) above;
(iv) Ubi Soft will deliver to IMagic a license granting
IMagic certain online rights with respect to games produced under the
Assigned Contracts;
(v) Each Party shall deliver a certificate to the other
Party signed by an appropriate officer of such delivering Party to the
effect that (a) in the case of Ubi Soft, each of the conditions to
Closing set forth in Section 2(g) (I) have been satisfied and (b) in
the case of IMagic, each of the conditions in Section 2 (g) (II) have
been satisfied.
3. REPRESENTATIONS AND WARRANTIES OF IMAGIC. IMagic represents and warrants
to Ubi Soft that the statements contained in this Section 3 are correct as of
the date of this Agreement and will be correct as of the Closing Date as though
made on that date.
(a) Organization of IMagic. IMagic is a corporation duly organized,
validly existing and in good standing under the laws of the State of North
Carolina.
(b) Authorization of Transaction IMagic has full power and authority
(including full corporate power and authority) and has taken all necessary
corporate action to execute and deliver this Agreement and to perform its
obligations hereunder. Without limiting the generality of the foregoing, the
Board of Directors of IMagic has duly authorized the execution, delivery and
performance of this Agreement by IMagic. This Agreement has been duly executed
and delivered by IMagic and, assuming due authorization of, and execution and
delivery by Ubi Soft, constitutes the valid and legally binding obligation of
IMagic, enforceable in accordance with its terms and conditions except as the
enforcement thereof may be affected by bankruptcy or other laws affecting the
rights of creditors generally.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge or other restriction of any government,
governmental agency or court to which IMagic is subject or any provision of the
charter or Bylaws of IMagic, (ii) conflict with, result in a breach of,
constitute a default under any agreement, contract, lease, license, instrument
or other arrangement to which IMagic is a party or by which it is bound, (iii)
result in the creation of any mortgage, lien, Security Interest, charge or other
encumbrance upon all or any part of the Assigned Contracts, or (iv) except as
set forth on Exhibit E, require IMagic to obtain any consent, approval or action
of, or make any filing with or give notice to, any governmental
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body or any other person or entity, except where the violation, conflict, breach
or default would not have a material adverse effect on Ubi Soft's rights under
any of the Assigned Contracts or the transactions contemplated hereby.
(d) Brokers' Fees. IMagic has no liability or obligation to pay any
fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement for which Ubi Soft could become
liable or obligated.
(e) Title to Rights under the Assigned Contracts. IMagic has good and
indefeasible title to all of the rights afforded to IMagic under the Assigned
Contracts free and clear of any Security Interest. IMagic has not previously
disposed of any right or interest under any of the Assigned Contracts. IMagic is
not party to any contract, agreement or commitment for the sale or disposition
of any of the rights under the Assigned Contracts. All of the Assigned Contracts
constitute valid and legally binding obligations of IMagic, and to the knowledge
of IMagic of the other the parties thereto, enforceable in accordance with their
terms and conditions except as enforcement thereof may be affected by bankruptcy
or other laws affecting the rights of creditors generally. IMagic has delivered
copies of all the Assigned Contracts to Ubi Soft. Since the date of signature of
the Assigned Contracts, the Assigned Contracts have not been amended or
otherwise modified, unless expressly mentioned in Exhibit A.
(f) Litigation. IMagic is not engaged in and, to IMagic's knowledge, is
not threatened with any material litigation or other proceeding which may give
rise to any claim against, or dispute involving, the Assigned Contracts or any
of the Intellectual Property.
(g) Payment Obligations Current. As specified in Exhibit F attached
hereto, IMagic is and will be at the Closing Date current with all of its
payment obligations to third parties due and payable under the Assigned
Contracts.
(h) Intellectual Property Rights. IMagic owns, free and clear of all
liens, or has the unrestricted right to use and sublicense all of the
Intellectual Property. Each copyright, trademark, service mark and patent
included in the Intellectual Property are valid, subsisting and in full force
and effect and IMagic has taken all necessary steps to protect and maintain each
such item of Intellectual Property. None of the Intellectual Property is subject
to any outstanding order, and no action, suit, proceeding, hearing,
investigation, charge, complaint, claim or demand is pending or, to the
knowledge of IMagic, threatened, which challenges the validity, enforceability,
use or ownership of any Intellectual Property. IMagic has substantially
performed all obligations imposed upon it under the Assigned Contracts and all
Intellectual Property licenses, and IMagic is not, nor to the knowledge of
IMagic is any other party thereto, in breach of or in default thereunder in any
respect, nor is there any event which with notice or lapse of time or both would
constitute a default thereunder. All of the Intellectual Property licenses are
valid, enforceable and in full force and effect, and will continue to be so on
identical terms immediately following the Closing except as enforcement thereof
may be affected by bankruptcy or other laws affecting the rights of creditors
generally. To the knowledge of IMagic, none of the Intellectual Property
infringes on or violates any intellectual property rights of others. To the
knowledge of IMagic, no person is infringing on or misappropriating the
Intellectual Property.
(i) Disclaimer of other Representations and Warranties. Except as
expressly set forth in this Agreement, IMagic makes no representation or
warranty, express or implied, at law or in equity, in respect of any of its
assets, liabilities or operations, including, without
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limitation, with respect to merchantability or fitness for any particular
purpose, and any such other representations or warranties are hereby expressly
disclaimed. Buyer hereby acknowledges and agrees that, except to the extent
specifically set forth in this Agreement, Ubi Soft is purchasing the Assigned
Contracts on an "as-is, where-is" basis. Without limiting the generality of the
foregoing, IMagic makes no representation or warranty regarding any assets other
than the Assigned Contracts or any liabilities other than the Assumed
Liabilities, and none shall be implied at law or in equity.
4. REPRESENTATIONS AND WARRANTIES OF UBI SOFT. Ubi Soft represents and
warrants to IMagic that the statements contained in this Section 4 are correct
as of the date of this Agreement and will be correct as of the Closing Date as
though made on the Closing Date.
(a) Organization of Ubi Soft. Ubi Soft is a company duly organized,
validly existing and in good standing under the laws of France and/or other
applicable jurisdiction.
(b) Authorization of Transaction. Subject to section 2 (g) 6 of this
Agreement, Ubi Soft has full power and authority (including full corporate power
and authority) to execute and deliver this Agreement and to perform its
obligations hereunder.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge or other restriction of any government,
governmental agency or court to which Ubi Soft is subject or any provision of
its charter, Bylaws or other governing documents or (ii) conflict with, result
in a breach of, constitute a default under any agreement, contract, lease,
license, instrument, or other arrangement to which Ubi Soft is a party or by
which it is bound.
(d) Brokers' Fees. Ubi Soft has no liability or obligation to pay any
fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement for which IMagic could become liable
or obligated.
5. COVENANTS AND AGREEMENTS. The Parties agree as follows:
(a) General. In case at any time after the Closing any further action
is necessary or desirable to carry out the purposes of this Agreement, each of
the Parties will take such further action (including the execution and delivery
of such further instruments and documents) as the other Party reasonably may
request, at the sole cost and expense of the requesting Party (unless the
requesting Party is entitled to indemnification therefore under Section 6
below).
(b) Litigation Support. In the event and for so long as any Party
actively is contesting or defending against any action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand in connection with
(i) any transaction contemplated under this Agreement or (ii) any fact,
situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act or transaction on or prior
to the Closing Date involving the Assigned Contracts, the other Party will
cooperate with the contesting or defending Party and its counsel in the contest
or defense, make available its personnel and provide such testimony and access
to its books and records as shall be necessary in connection with the contest or
defense, all at the sole cost and expense of the contesting or defending Party
(unless the contesting or defending Party is entitled to indemnification
therefor under Section 6 below).
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(c) Transition. IMagic will use its best efforts so that any lessor,
licensor, customer, supplier or other business associate of IMagic will
maintain the same business relationships with Ubi Soft relating to the
Assigned Contracts after the Closing as it maintained with IMagic prior to
the Closing. IMagic shall conduct its business in such a manner that the
representations and warranties contained in this Agreement` shall continue to
be true and correct on and as of the Closing Date as if made on and as of the
Closing Date.
6. REMEDIES FOR BREACHES OF THIS AGREEMENT.
(a) Survival of Representations and Warranties. All of the
representations and warranties of the Parties under this Agreement shall survive
the Closing and continue in full force and effect for a period of one year
thereafter.
(b) Indemnification Provisions for Benefit of Ubi Soft. In the event
IMagic breaches any of its representations, warranties or covenants contained in
this Agreement, and, provided that Ubi Soft makes a written claim for
indemnification against IMagic pursuant to Section 7(g) below within 30 business
days after the end of the survival period, then IMagic agrees to indemnify Ubi
Soft from and against the entirety of any Adverse Consequences Ubi Soft shall
suffer based upon, arising out of, or otherwise in respect of such breach;
provided, however, that IMagic shall not have any obligation to indemnify Ubi
Soft from and against any Adverse Consequences caused by the breach of any
representation or warranty of IMagic: (A) until Ubi Soft has suffered Adverse
Consequences by reason of all such breaches in excess of a $10,000 aggregate
deductible (after which point IMagic will be obligated only to indemnify Ubi
Soft from and against all further Adverse Consequences) (B) to the extent the
Adverse Consequences Ubi Soft has suffered by reason of all such breaches
exceeds the amount of the Purchase Price (after which point IMagic will have no
obligation to indemnify Ubi Soft from and against further such Adverse
Consequences). IMagic agrees to indemnify Ubi Soft without deduction from and
against the entirety of any Adverse Consequences Ubi Soft shall suffer caused by
any liability which is a Retained Liability
(c) Indemnification Provisions for Benefit of IMagic. In the event Ubi
Soft breaches any of its representations contained in Section 4 of this
Agreement, and, provided that IMagic makes a written claim for indemnification
against Ubi Soft pursuant to Section 7(g) below within such survival period,
then Ubi Soft agrees to indemnify IMagic from and against the entirety of any
Adverse Consequences IMagic shall suffer based upon, arising out of, or
otherwise in respect of such breach; provided, however, that Ubi Soft shall not
have any obligation to indemnify IMagic from and against any Adverse
Consequences caused by the breach of any representation of Ubi Soft: (A) until
IMagic has suffered Adverse Consequences by reason of all such breaches in
excess of a $10,000 aggregate deductible (after which point Ubi Soft will be
obligated only to indemnify IMagic from and against further such Adverse
Consequences) (B) to the extent the Adverse Consequences IMagic has suffered by
reason of all such breaches exceeds the amount of the Purchase Price (after
which point Ubi Soft will have no obligation to indemnify IMagic from and
against further such Adverse Consequences). Ubi Soft agrees to indemnify IMagic
without deduction from and against the entirety of any Adverse Consequences
IMagic shall suffer caused by any liability which is an Assumed Liability.
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(d) Matters Involving Third Parties.
(i) If any third party shall notify any Party (the
"Indemnified Party") with respect to any matter (a "Third Party Claim")
which may give rise to a claim for indemnification against the other
Party (the "Indemnifying Party") under this Section 6, then the
Indemnified Party shall promptly (and in any event within thirty
business days after receiving notice of the Third Party Claim) notify
the Indemnifying Party thereof in writing.
(ii) The Indemnifying Party will have the right at any time
to assume and thereafter conduct the defense of the Third Party Claim
with counsel of its choice reasonably satisfactory to the Indemnified
Party; provided, however, that the Indemnifying Party will not consent
to the entry of any judgment or enter into any settlement with respect
to the Third Party Claim without the prior written consent of the
Indemnified Party (not to be withheld unreasonably) unless the judgment
or proposed settlement involves only the payment of money damages and
does not impose an injunction or other equitable relief upon the
Indemnified Party.
(iii) Unless and until the Indemnifying Party assumes the
defense of the Third Party Claim as provided in Section 6(d)(ii) above,
however, the Indemnified Party may defend against the Third Party Claim
in any manner it reasonably may deem appropriate.
(iv) In no event will the Indemnified Party consent to the
entry of any judgment or enter into any settlement with respect to the
Third Party Claim without the prior written consent of the Indemnifying
Party (not to be unreasonably withheld, delayed or conditioned).
(v) The Indemnifying Party shall reimburse the Indemnified
Party, from time to time, for all expenses and fees, including court
costs and reasonable attorneys' fees and expenses incurred by the
Indemnified Party in investigating, prosecuting or defending any claim,
proceeding or action for which indemnification is provided pursuant to
this Section 6. All such reimbursements shall be made within seven days
of receipt of written demand therefor.
(e) Determination of Adverse Consequences. The Parties shall make
appropriate adjustments for tax benefits and insurance coverage(subject to any
rights of subrogation any insurer may have) in determining Adverse Consequences
for purposes of this Section 6. All indemnification payments under this Section
6 shall be deemed adjustments to the Purchase Price.
(f) Exclusive Remedy. Ubi Soft and IMagic acknowledge and agree that
the foregoing indemnification provisions in this Section 6 shall be the
exclusive remedy of Ubi Soft and IMagic with respect to the Assigned Contracts.
7. MISCELLANEOUS.
(a) Press Releases and Public Announcements. No Party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement without the prior written approval of the other Party; provided,
however, that any Party may make any public disclosure it believes in good faith
is required by applicable law or any
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listing or trading agreement concerning its publicly-traded securities (in which
case the disclosing Party will use its reasonable best efforts to advise the
other Party prior to making the disclosure).
(b) No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(c) Entire Agreement. This Agreement (including the documents referred
to herein) constitutes the entire agreement between the Parties and supersedes
any prior understandings, agreements, or representations by or between the
Parties, written or oral, to the extent they related in any way to the subject
matter hereof.
(d) Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and assigns. Either Party may assign this Agreement and any of its rights,
interests or obligations hereunder without the prior written approval of the
other Party; provided, however, that such assigning Party nonetheless shall
remain responsible for the performance of all of its obligations hereunder.
(e) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument. This Agreement duly signed
by both parties may be transmitted by facsimile to each party and shall
constitute an original document
(f) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(g) Notices. All notices, requests, demands, claims and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to Ubi Soft:
Attn: Yves Guillemot , President
Ubi Soft Entertainment S.A.
28, rue Armand Carrel
93108 Montreuil sous Bois Cedex
Telephone : 33 1 48 18 50 00
Telecopier : 33 1 48 18 52 82
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If to IMagic:
Interactive Magic, Inc.
215 Southport Drive, Suite 1000
Morrisville, North Carolina 27560
Attn: Chief Executive Officer
Telephone: 919-461-0722
Telecopier: 919-462-3081
With a copy to :
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607-7506
Attn: Larry E. Robbins
Telephone: 919-781-4000
Telecopier: 919-781-4865
Any Party may send any notice, request, demand, claim or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail or electronic mail), but no such notice, request,
demand, claim or other communication shall be deemed to have been duly given
unless and until it actually is received by the intended recipient. Any Party
may change the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other Party notice in
the manner herein set forth.
(h) Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of New York applicable to
agreements made and to be performed entirely within such state.
(i) Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by Ubi
Soft and IMagic. No waiver by any Party of any default, misrepresentation or
breach of warranty or covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior or subsequent default, misrepresentation or breach
of warranty or covenant hereunder or affect in any way any rights arising by
virtue of any prior or subsequent such occurrence.
(j) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(k) Expenses. Each Party shall bear its own costs and expenses incurred
in connection with this Agreement and the transactions contemplated hereby.
(l) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state,
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local or foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation.
(m) Incorporation of Exhibits and Schedules. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
(n) Bulk Transfer Laws. Ubi Soft acknowledges that IMagic will not
comply with the provisions of any bulk transfer laws of any jurisdiction in
connection with the transactions contemplated by this Agreement.
(o) Arbitration. Any controversy or claim arising out of or related to
this Agreement, or any transactions contemplated herein, that cannot be amicably
resolved, including, without limitation, whether such controversy or claim is
subject to arbitration, will be resolved by binding arbitration held in New York
City, New York, in accordance with the commercial arbitration rules of the
American Arbitration Association, subject to this Section. Arbitration
proceedings will be conducted by a panel of three persons selected as follows.
The party initiating arbitration will select one arbitrator listed and qualified
with the American Arbitration Association ("Qualified Arbitrator") and the other
party will select a second Qualified Arbitrator, both within 10 days of any
written notice to arbitrate. The two arbitrators will select a third Qualified
Arbitrator within 20 days of the appointment of the first two arbitrators. No
arbitrator will have or previously have had any significant relationship with
any of the parties. The decision of any two of the arbitrators on any submitted
matter will be final and nonappealable. Notwithstanding the foregoing, if the
controversy or claim in question is not resolved by the arbitrators as provided
herein within 150 days after selection of the first arbitrator, either party may
pursue any remedy with respect hereto provided by law.
(p) Termination.
(a) The Parties may terminate this Agreement as provided below:
(i) Ubi Soft and IMagic may terminate this Agreement
by mutual written consent at any time prior to the Closing;
(ii) Ubi Soft may terminate this Agreement by giving
written notice to IMagic on or before the Closing Date if Ubi Soft is
not reasonably satisfied with the results of its continuing due
diligence on the Assigned Contracts;
(iii) Ubi Soft may terminate this Agreement by giving
written notice to IMagic at any time prior to the Closing (A) in the
event IMagic has breached any representation, warranty or covenant
contained in this Agreement in any material respect, or (B) if the
Closing shall not have occurred on or before June 30, 1999, by reason
of the failure of any condition precedent under Section 2(g) hereof
(unless the failure results primarily from Ubi Soft itself breaching
any representation, warranty or covenant contained in this Agreement);
and
(iv) IMagic may terminate this Agreement by giving
written notice to Ubi Soft at any time prior to the Closing (A) in the
event Ubi Soft has breached any representation, warranty or covenant
contained in this Agreement in any material respect or (B) if the
Closing shall not have occurred on or before June 30, 1999, by reason
of the
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failure of any condition precedent under Section 2(g) hereof (unless
the failure results primarily from IMagic itself breaching any
representation, warranty, or covenant contained in this Agreement).
(b) If any Party terminates this Agreement pursuant to this
Section 7(p), all rights and obligations of the Parties hereunder shall
terminate without any liability of any Party to the other Party (except for any
liability of any Party then in breach).
*****
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the date first above written.
UBI SOFT
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
INTERACTIVE MAGIC, INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
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EXHIBIT A
LIST OF ASSIGNED CONTRACTS
1. Software Licensing Agreement dated March 23, 1998 between
IMagic and Enlight Software relating to Seven Kingdoms II.
2. Development Agreement dated March 6, 1998 between IMagic and
Enlight Software relating to three new products and four
upgrades to existing products.
3. Software Licensing Agreement dated April 15, 1998 between
IMagic and JRC-ing Slavomir Pavlicek relating to Flash Point.
4. Software Licensing Agreement dated December 19, 1997, between
IMagic and Sinister Games, Inc. relating to Shadow Company.
5. Software Licensing Agreement dated November 19, 1998 between
IMagic and Sinister Games, Inc. relating to three future
works.
6. Software Licensing Agreement dated November 20, 1998 between
IMagic and Mirage Media relating to Mortyr.
7. Software licensing agreement concluded with BATTLEFIELD DESIGN
GROUP (December 19, 1997) for ROAD TO MOSCOW (working title)
8. Software licensing agreement concluded with LUMIS STUDIOS, INC
(October 15, 1998) for WALL STREET TYCOON
9. Software licensing agreement concluded with STARDOCK SYSTEMS,
INC (November 30, 1998) for Monopolization
Exhibit 10.37
ONLINE RIGHTS LICENSE
This Online Rights License Agreement (this "Agreement") is made and
entered into as of June 28, 1999, by and between Interactive Magic, Inc., a
North Carolina corporation ("IMagic"), and Ubi Soft Entertainment S.A., a
company organized under the laws of France ("Ubi Soft").
RECITALS
WHEREAS, IMagic is engaged in the business of publishing and
distributing online games and operates several online game services; and
WHEREAS, Ubi Soft has certain rights to the products produced or to be
produced under the development agreements assigned to Ubi Soft by IMagic (the
"Assigned Contracts") pursuant to the Agreement Regarding Assignment of
Contracts dated May 25, 1999 (the "Assignment Agreement").
NOW, THEREFORE, in consideration of the mutual rights, benefits,
covenants, and obligations granted and provided for hereunder, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows.
1. Definitions
-----------
API means the Application Programming Interface delivered to Ubi Soft by IMagic
free of charge.
Works means the products listed in Exhibit 1 of the Agreement. Ubi Soft and
IMagic may revise, by written agreement of the parties hereto, the list of Works
from time to time to add or subtract titles.
Multiplayer Version means the multiplayer version of the Works, either on CD-Rom
format or on any other format or method now known or later developed, in which
Ubi Soft will have inserted or have made insert the API , all related expenses
being reimbursed on demand by IMagic.
Demo means the freeware format demonstration version composed of parts of the
Multiplayer Version.
2. Grant of Rights.
----------------
2.1 Grant of Rights. With respect to each of the Works, Ubi Soft hereby grants
to IMagic, for a period of 3 years (the "Term"), solely to the extent Ubi Soft
has or will have such right, the worlwide right to (i) exclusively enable two or
more players to play together the Multiplayer Version, by giving access to such
players to any server that I'Magic operates at
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the date hereof, provided that each of the players has purchased the Multiplayer
Version, (ii) exclusively generate revenues from advertising, pay-per-play or
subscription by giving access to any server that I'Magic operates at the date
hereof of two or more players, who have purchased the Multiplayer Version, (iii)
non exclusively use, publish and advertise, in any manner or medium IMagic may
reasonably deem advisable, the names and authors of the Works; and (iv) non
exclusively make, prepare, and distribute free of charge Demos on any server
that I'Magic operates at the date hereof, solely for the purpose of promoting
the IMagic product and service, all Demos being submitted to Ubi Soft for prior
approval.
2.2 Reservation of Rights. Those rights not expressly granted in
Section 2.1 are hereby reserved to Ubi Soft, including, but not limited to the
right to make and distribute Demos in any country. Under no circumstances does
the Grant of Rights, Section 2.1, require or obligate Ubi Soft to publish,
distribute, promote or otherwise exploit any of the Works.
3. Representations and Warranties.
-------------------------------
3.1 Authority. Each party represents and warrants that it has the
right, power and authority to enter into this Agreement.
3.2 Conflicts. Each party represents and warrants that it has not
granted to any other persons or entities rights that would conflict with
performance by either party of its obligations under this Agreement. Each party
represents that it shall not enter into an agreement with any person or entity
that would bind the other party without the written consent of such other party.
3.3 No Reproduction. IMagic represents that it will not reproduce and
will not knowingly permit any third party to reproduce the Works or any part of
the Works or the Multiplayer Versions or any part of the Multiplayer Versions
for any purpose and that it will take all reasonable measures to prevent
unauthorized copies of the Works or part of the Works or of the Multiplayer
Versions or parts of the Multiplayer Versions from being made.
3.4 Authorship Credit. IMagic shall give Ubi Soft or the appropriate
developer of a Multiplayer Version, as the case may be, authorship or ownership
credit by stating so in any online publication under the control of IMagic.
3.5 Ownership. All right, title and interest in any Demo created by or
for IMagic pursuant to, and in conformance with Section 2.1 above, shall belong
to Ubi Soft.
4. Delivery of the Multiplayer Versions and the API's.
---------------------------------------------------
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4.1 Ubi Soft shall deliver to IMagic beta-tested object code versions
of the Multiplayer Version at least 30 days prior to Ubi Soft's retail release
of the corresponding Multiplayer Version.
4.2 IMagic shall deliver to Ubi Soft free of charge and at least 120
days before Ubi Soft's release of such Multiplayer Versions any material
necessary to the development of the Multiplayer Version, including API, computer
program modules contained or utilized by such version and necessary to operate
it in the Field of Use, such delivery being made both in source code form,
reasonably commented, and in fully tested object code form in a computer
readable format specified by Ubi Soft.
4.3 Upon delivery of any API program module to Ubi Soft, pursuant to
Section 4.2, Ubi Soft shall deliver the API program module to the developer of
the corresponding Work and, to the extent within the scope of Ubi Soft's rights
contained under the Assigned Contracts, shall require such developer to
integrate such API program modules into their deliverable product. IMagic will
reimburse on demand all reasonable and customary expenses associated with the
development of the Multiplayer Versions.
5. Royalties and Payment.
----------------------
5.1 Royalties. In consideration of the rights granted to IMagic by Ubi
Soft, IMagic will pay Ubi Soft a royalty equal to twenty five percent (25%) of
IMagic's net revenues including but not limited to revenues collected directly
or indirectly from advertising, pay-per-play or subscription, related to the
connection of two or more players, who have purchased the Multiplayer Version,
to play together on any server that IMagic operates at the date hereof. The
royalty shall be paid on a quarterly basis as described below. Notwithstanding
the foregoing, IMagic shall not require any use fee or subscription fee from any
player who has purchased the Multiplayer Version for the first six (6) months
commencing upon any such player's first connection to play in a multiplayer mode
on any server that IMagic operates.
5.2 Payment. Within 45 days after the end of each calendar quarter,
IMagic shall submit a report to Ubi Soft that shall provide an electronic copy
of the following information for the immediately preceding calendar quarter for
each Multiplayer Version : (i) the number of connections (whether subscriptions
or pay-for-play fees); (ii) the length of any such connection, (iii) the
click-through generated by any such connection, (v) the royalty payment due to
Ubi Soft for the immediately preceding calendar quarter; (vi) the advertising
revenue generated on the IMagic website; and (vii) the calculation supporting
such payment. The report shall be accompanied by the royalty payment due to Ubi
Soft in immediately available funds wired to an account specified by Ubi Soft.
Any payment by IMagic past the due date shall be accompanied by interest
computed at the rate of 10% per annum, compounded daily, and accrued from the
date such payment was due until such payment was paid.
5.3 Tax Treaty. If so required by law IMagic may deduct from the amount
due to be paid pursuant to this Agreement a withholding tax of not more than 5
per cent pursuant
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to the US-France Income Tax Convention, provided IMagic provides a copy of any
payment stub and official tax receipt demonstrating that such withholding tax
has been paid to the U.S. and State taxation authorities and provided further
that if Ubi Soft is unable to use the tax credit to its fullest extent, then
IMagic shall immediately pay the balance required to gross up the relevant
payment so that the net amount received by Ubi Soft is not less than the gross
amount due.
6. Audit Rights.
-------------
Ubi Soft shall be entitled, upon reasonable prior notice and at any time during
IMagic's normal business hours, to engage an independent auditor to inspect and
verify compliance with the provisions of this Agreement and make copies of all
records that relate to any payments made or owing to Ubi Soft by IMagic pursuant
to this Agreement, including without limitation, all records, invoices, books of
accounts, computer and database information, documents and correspondence.
IMagic shall provide such auditor, its agents, employees or representatives with
reasonable and suitable physical conditions in which to conduct such audit,
including without limitation appropriate desk, chairs and telephone services,
adequate lighting and ventilation, and a working photocopying machine with which
to make copies as permitted hereunder. The auditor shall issue a report of
findings to both parties. Ubi Soft shall bear the cost of the audit unless
IMagic is found to have been deficient in the payment of royalties by more than
five percent (5%) in any calendar quarter, in which case IMagic shall reimburse
Ubi Soft for the reasonable costs incurred in conducting the audit. If such an
audit detects a shortfall in accounts paid to Ubi Soft, IMagic shall pay
interest at a rate of fifteen percent (15%) per annum from the date due, on any
unpaid amount. Ubi Soft's right of inspection hereunder shall survive
termination of this Agreement for one year.
7. Term and Termination.
---------------------
7.1 Termination with Cause. Either party may terminate this Agreement
upon a any breach by the other if the matter is not corrected within 30 days of
written notice of such intent to terminate.
7.2 Termination for Breach under the Agreement regarding Assignment of
Contracts: Notwithstanding Section 7.1 above, in the event IMagic breaches any
warranty, representation, covenant or agreement contained within the Assigned
Contracts or the Assignment Agreement, this Online License Agreement shall
immediately and without any further action on the part of Ubi Soft terminate and
all rights granted herein shall immediately and without any further action on
the part of Ubi Soft revert to Ubi Soft.
7.3 Termination for Breach under Non-Reproduction under Section 3.3:
Notwithstanding Section 7.1 above, in the event IMagic knowingly authorizes,
permits, or otherwise engages in any distribution of the Works, or in the event
Ubi Soft can prove the
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Multiplayer Version have or can be reproduced from any server or website
operated by IMagic, in contravention to Section 3.3, this Online License
Agreement shall immediately and without any further action on the part of Ubi
Soft terminate and all rights granted herein shall immediately and without any
further action on the part of Ubi Soft revert to Ubi Soft.
7.4 Effect of Termination. In the event of termination of this
Agreement by IMagic pursuant to this Section 7, IMagic shall be required to pay
royalties pursuant to Section 5 on those revenues collected after termination
for licensed use, performance, or distribution before termination. Except as
otherwise provided herein, any provision of this Agreement that imposes
continuing obligations on the parties will survive the termination of this
Agreement.
7.5 Limitation of Liabilities. THE PARTIES' SOLE REMEDY AND SOLE
OBLIGATION TO ONE ANOTHER WITH RESPECT TO ANY CLAIMS MADE RELATED TO OR ARISING
OUT OF THIS AGREEMENT SHALL BE GOVERNED BY THIS AGREEMENT AND, IN ALL CASES
(OTHER THAN CLAIMS RELATED TO SECTIONS 2.1 AND 5), REMEDIES SHALL BE LIMITED TO
MONEY DAMAGES NOT EXCEEDING $200,000.
7.6 Indemnification. To the extent of the limitation of liabilities
referenced above in Section 7.5, each party shall defend, indemnify and hold
harmless the other party and its officers, directors, owners, employees, and,
its licensees and any seller or licensor of the Works, from and against any and
all loss, liability, claims, damage, cost or expense, whether in tort or in
contract, (including reasonable attorney's fees and costs) relating to the
breach of this Agreement by the other party hereto (including without limitation
the breach by such other party of any of its representations and warranties
herein), provided that the indemnified party must give the indemnifying party
prompt notice of any claims covered by this Section and the indemnifying party
shall control the defense and settlement of all third party claims hereunder,
provided that no settlement of any such claim shall be made without the
indemnified party's consent unless such settlement contains an unconditional
release of the indemnified party from any liability. The indemnified party may
participate in the defense, at that party's sole expense, with counsel of the
indemnified party's choosing.
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8. Miscellaneous.
--------------
8.1 Assignability. IMagic may not assign the rights or obligations
within this Agreement without the prior written consent of Ubi Soft such consent
not being unreasonably withheld. Any transaction involving (i) the sale of the
majority of IMagic outstanding stock; (ii) a merger; or (iii) sale of all or
substantially all of IMagic's assets shall be deemed an assignment. Any
purported assignment on the part of IMagic shall be null and void and shall not
abrogate any of its obligation created herein.
8.2 Notification of actual or potential violation of Law or claims. In
the event that IMagic knows or has reasons to believe that any act or
refrainment from acting required or contemplated by this Agreement violates any
Law (whether criminal or non criminal) of any country or any political or
governmental subdivision thereof, IMagic shall promptly notify Ubi Soft in a
writing describing the act and identifying the law. IMagic shall promptly notify
Ubi Soft in writing of any claim or proceeding involving any Multiplayer Version
or any derivative works based on any Works no later than (10) days after IMagic
learns of such claim or proceeding.
8.3 Arbitration.
Any controversy or claim arising out of or related to this Agreement, or any
transactions contemplated herein, that cannot be amicably resolved, including,
without limitation, whether such controversy or claim is subject to arbitration,
will be resolved by binding arbitration held in New York City, New York, in
accordance with the commercial arbitration rules of the American Arbitration
Association, subject to this Section. Arbitration proceedings will be conducted
by a panel of three persons selected as follows: (i) the party initiating
arbitration will select one arbitrator listed and qualified with the American
Arbitration Association ("Qualified Arbitrator") and the other party will select
a second Qualified Arbitrator, both within 10 days of any written notice to
arbitrate; (ii) the two arbitrators will select a third Qualified Arbitrator
within 20 days of the appointment of the first two arbitrators; (iii) no
arbitrator will have or previously have had any significant relationship with
any of the parties; (iv) the decision of any two of the arbitrators on any
submitted matter will be final and nonappealable; and (v) the arbitrator may in
his discretion require costs of arbitration to be paid by the nonprevailing
party, but in the absence of such a decision, each party shall bear its own
costs and expenses and an equal share of the arbitrator's expenses and
administrative fees of arbitration. Notwithstanding the foregoing, if the
controversy or claim in question is not resolved by the arbitrators as provided
herein within 150 days after selection of the first arbitrator, either party may
pursue any remedy with respect hereto provided by law or equity. Nothing herein
contained shall limit the right of either party to seek to obtain in any court
of competent jurisdiction any interim relief or provisional remedy, including
injunctive relief.
8.4 Notice. All notices, requests, permissions, waivers, and other
communications hereunder shall be effected in accordance with Section 7(g) of
the Assignment Agreement.
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8.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of New York applicable to
agreements made and to be performed entirely within such state.
8.6 Amendment. This Agreement may not be amended or modified except by
a written instrument signed by the parties or their duly authorized officers or
representatives. Any attempt to modify the Agreement by an oral understanding is
void and shall have no effect.
8.7 Entire Agreement. This Agreement sets forth the entire
understanding of the parties regarding the subject matter hereof. The parties
shall not be bound by or liable for any statement, writing, representation,
promise, inducement or understanding not set forth above or within the
aforementioned documents.
IN WITNESS WHEREOF, the parties hereto have entered into this Online
Rights License Agreement effective as of the date first above written.
INTERACTIVE MAGIC, INC.
By: _______________________
Name: _______________________
Title: _______________________
Date: _______________________
UBI SOFT
By: _______________________
Name: _______________________
Title: _______________________
Date: _______________________
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EXHIBIT 1 : LIST OF THE WORKS
---------
1. Future works to be developed under the Development Agreement
dated March 6, 1998 between IMagic and Enlight Software.
2. Future works to be developed under the Software Licensing
Agreement dated November 19, 1998 between IMagic and Sinister
Games, Inc..
3. Software licensing agreement concluded with LUMIS STUDIOS, INC
(October 15, 1998) for WALL STREET TYCOON
8
