Exhibit(s) 1 (Asset Purchase Agreement)
Exhibit(s) 1 (Asset Purchase Agreement) - Apogee Software Ltd and Interceptor Entertainment ApS...
101 East Park Blvd - Suite 1200, Plano, TX 75074 – Phone: (972) 312-8202 / Fax: (972) 312-8318
Asset Purchase Agreement - Supplement
This Letter Agreement, entered into on this 2nd day of February, 2010 (the “Effective Date”), is by and between Apogee Software, Ltd. a Texas limited partnership located at 1661 Northwest Highway, Garland, TX 75041 (the “Seller”), and Gearbox Software, LLC, a Texas limited liability company located at 101 East Park Blvd., Ste. 1200, Plano, Texas 75074 (the “Buyer”) supplements (this “Supplement”) that certain Asset Purchase Agreement (the “Agreement”) between the Seller and the Buyer, dated 2nd of February, 2010, that pertains to the sale and purchase of the Duke IP. Recitals
WHEREAS, the Parties wish to amend the Agreement hereby. NOW, THEREFORE, in consideration consideration of the foregoing and of the mutual promises hereinafter hereinafter set forth, the Parties agree as follows: 1. Definitions. Definition s. Except as expressly stated herein or modified in accordance with the provisions of this Supplement, all capitalized words and phrases contained herein shall have the definitions and meanings set forth in the Agreement. 2. Purpose. The purpose of this Supplement is to add clarity to the Agreement by stating those assets that are retained by the Seller. 3. Agreement. Notwithstanding Notwithstand ing the exceptions noted, the Parties agree that everything listed on Exhibit 1 is retained by the Sellers and does not transfer in any shape, manner, or form to the Buyer as a result of the Agreement. The Agreement makes it clear that everything in the Duke IP post-Closing post-Closin g belongs to the Buyer and those certain assets, which were created and/or developed prior to the Closing, listed on Exhibit 1 are retained by the Seller. For purposes of clarity, the Parties agree that any revenues generated from any of the games listed as “Duke Nukem Games and Projects Excluded from Revenue Sharing Provisions” on Exhibit 1 shall be paid to Seller. 4. License to 3D Realms Name and Logo. Subject to the terms and conditions of the Agreement, 3D Realms grants to Gearbox (i) a worldwide, non-exclusive license (including the right to sublicense) to use the Apogee Trademarks in connection with the marketing, promotion, manufacturing, and distribution of (i) computer video games and other works based upon or derived from, in whole or in part, the Duke Nukem Universe or Duke Nukem Game Property, and (ii) Ancillary Products. All such use of the Apogee Trademarks shall inure to the benefit of 3D Realms and 3D Realms shall retain all ownership rights to such marks. All use of the Apogee Trademarks shall be in conformance with the standards communicated by Seller for use of the marks. Buyer agrees that before any products or services will contain an Apogee Trademark, Buyer will provide written notice (e-mail will suffice) to Seller describing the product or service and how the Apogee Trademark will be used. Seller will have five (5) business days from the date of the written notice to disapprove of its trademark trademark being used on such product or service and if no disapproval is provided (again, e-mail will suffice) by Seller within the five (5) business days, then the Buyer may use the Apogee Trademark as if the Seller had approved. 5. License to Duke Trademarks. Subject to the terms and conditions of the Agreement, Buyer grants to Seller (i) a worldwide, non-exclusive license (including the right to sublicense) to use the Duke Trademarks in connection with the marketing, promotion, manufacturing, and distribution of (i) its movies based upon or derived from, in whole or in part, the Duke Nukem Universe or Duke Nukem Game Property, (ii) Ancillary Products based on the movies, if
Confidential & Proprietary
any, and (iii) non-AAA platform versions of the excluded games listed below in Exhibit 1. All such use of the Duke Trademarks shall inure to the benefit of Buyer and Buyer shall retain all ownership rights to such marks. All use of the Duke Trademarks shall be in conformance with the standards communicated by Buyer for use of the marks. Seller agrees that before any products or services will contain a Duke Trademark, Seller will provide written notice (e-mail will suffice) to Buyer describing the product or service and how the Duke Trademark will be used. Buyer will have five (5) business days from the date of the written notice to disapprove of its trademark being used on such product or service and if no disapproval disapproval is provided (again, e-mail will suffice) by Buyer within the five (5) business days, days, then the Seller Seller may use the Duke Trademark Trademark as if the Buyer had approved. 6. Quarterly Payments. For the first twelve (12) months after the Effective Date of the Agreement, if Buyer stops payment of the quarterly payments payments to Seller in accordance with Paragraph 1 of Exhibit 2.3 of the Agreement and provides written notice notice (e-mail will suffice) to the Seller as to its intent to stop payments, the Parties agree that that the Agreement will unravel and both Parties will return to the same positions that they were in (in relation to each other and the Duke IP) one-day prior to the execution of this Agreement, with the exception that Sellers are allowed to keep all payments made by the Buyer and in the Seller’s possession. 7. Remains of the Agreement. Except as expressly modified in accordance with the provisions of this Supplement, all other terms and conditions set forth in the Agreement shall remain in full force and effect, and any conflicts between this this Supplement Supplement and the the Agreement Agreement shall be be settled in favor of this this Supplement. Supplement. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written. This Agreement may be executed by facsimile signature. APOGEE SOFTWARE, LTD.
GEARBOX SOFTWARE, LLC
By:____________________ By:________________________________ ____________ By: ___________________________ ___________________________________ ________ Name: Randy Pitchford Pitc hford Name: Scott Miller Miller Title: CEO of Action Entertainment, Inc., the Title: President general partner of Apogee Software, Ltd.
Privileged and Confidential
Exhibit 1 – Excluded Assets I.
Retained Movie Rights
The Parties agree that the Seller expressly retains retains the Retained Movie Rights. The “Retained Movie Rights” are defined defined as all rights, title and interest in and to the Duke Nukem Universe and Duke Nukem Game Property created or developed prior to the Closing for use in connection with motion pictures, films, movies, videos, and television shows for any medium now known or hereafter devised, including licensing of or granting any rights for any co-sponsorship, in-product marketing/advertising, or co-promotional deals relating thereto. The Seller, also, expressly retains rights to create, sell, license, and distribute (i) consumer goods and sundries (other than videogames and videogame-related videogame-related products) bearing the names, characters, and themes directly relating to the motion pictures, films, movies, videos, and television shows and are promoted in connection with such works and (ii) books, comic books, magazines, magazines, and all other print-based media products bearing the names, characters, and themes directly relating to such motion pictures, films, movies, videos, and television shows and are promoted in connection with such works. However, as an exception to the previous Retained Movie Rights carve-out, the Parties agree that the Buyer will receive all rights, title and interest to the Duke IP, including all of the rights described in the previous paragraph, that are comprised of the Duke IP that are conceived, created, developed, or in any other manner fashioned by Buyer postClosing. II.
Duke Nukem games previously released or in development
Duke Nukem 1 Duke Nukem 2 Duke Nukem 3D (and expansion packs) Land of the Babes Manhattan Project (currently in development for Xbox Live) Time to Kill Zero Hour Balls of Steel Duke Nukem 3D Live (published 2008 for X box Live) Duke Nukem Critical Mass trilogy (in development by Apogee LLC) Duke Nukem Survivor (tentative title -- initial platform: smart phones) Excluded Intellectual Property The “3D Realms” and “3D Realms Entertainment” Entertainment” names and related logos. The “3D Realms” logo, which is the subject of U.S. Trademark Registration The Apogee Software name and logo. All new creative content developed by Schizophrenic Thinking, Thinking, Inc. for Apogee Software and Radar Group for use in connection with motion picture, film, and television works based upon the Duke Nukem Universe; provided that such content content refers only to the Duke Nukem Universe and Duke Nukem Game Property Property that was developed and sold to the public prior to the Closing. The “Bombshell” character and name. Duke Nukem Games and Projects Excluded from Revenue Sharing Provisions The “Critical Mass” trilogy of games in development by Apogee LLC for hand-helds (e.g., the Nintendo DS and Sony PSP), smart s mart phones (such as iPhone and Droid), digital download platforms (such as Xbox Live and Steam), and browser platforms (such as Facebook). The Duke Nukem Manhattan P roject for all platforms. The Duke Nukem “Survivor” game (working title) in development at Machineworks LLC for hand-helds, mobile and smart phones, digital download platforms, and browser platforms. Duke Nukem Live for Xbox Live platform, published by Microsoft in 2008/09, and ports to other digital download platforms. All ports of the D uke Nukem 3D game (originally published in 1996) to any platform.
Privileged and Confidential