ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is effective as of May
20, 2002 (the "Closing Date") by and between Apogee Software, Ltd. d/b/a 3D
Realms, a Texas limited partnership ( "Apogee"), Remedy Entertainment, Ltd., a
Finnish corporation ( "Remedy" and together with Apogee, the "Sellers" and
individually, each a "Seller"), Take-Two Interactive Software, Inc., a Delaware
corporation ("Take-Two") and Maxcorp. Ltd., a Bermuda corporation ("Maxcorp" and
together with Take-Two, each a "Purchaser" and collectively, the "Purchasers").
Whereas, subject to the terms and conditions of this Agreement, the
Purchasers desire to purchase, and the Sellers desire to sell the Assets (as
defined below).
Whereas, subject to the terms and conditions of this Agreement,
Take-Two desires to purchase the portion of the Assets directly or indirectly
related to the Exploitation (as defined below) of the Acquired Titles in the
United States ("US Rights"), and Maxcorp desires to purchase the portion of the
Assets directly or indirectly related to the Exploitation of the Acquired Titles
in any country other than the United States ("International Rights").
In consideration of the foregoing and the mutual promises made herein,
and to specify the terms and conditions under which the transactions
contemplated hereby will be consummated, the parties hereto do hereby agree as
follows:
1. Definitions. Except as otherwise expressly provided in the Agreement
or unless the context otherwise requires, the following terms, for all purposes
of this Agreement, shall have the respective meanings hereinafter specified:
"Acquired Titles" means the interactive software games known
as "Xxx Xxxxx" and "Xxx Xxxxx 2".
"Affiliate" has the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Securities Exchange Act of 1934, as amended.
"Assets" means all of Sellers' or its Affiliates' right, title
and interest in and to the following assets, properties, rights and business,
whether real, personal, tangible or intangible, of every kind, nature and
description and wherever located as of the Closing Date:
(a) the scripts, storyboards, outlines, plot structures,
speech, images, characters, characterizations, drawings, designs, graphics,
artworks and other characteristics embodied in the Acquired Titles and any and
all characters, objects, sound and music (to the extent not licensed, and, to
the extent licensed, the licenses thereto) embodied in the Acquired Titles,
whether in physical form or in analog or digital electronic or optronic form,
and all drafts or preliminary versions of any of the foregoing;
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(b) to the extent not included in the foregoing and except for
the Excluded Assets (as defined below), any and all Intellectual Property (as
defined below) used with or in conjunction with the Acquired Titles created,
designed or developed by the Sellers or any third party on behalf of the
Sellers, including, without limitation, all sequels thereto or derivative works
made therefrom;
(c) the complete and accurate source code of the files listed
on Schedule A-1 hereto, together with the compiled executable code derived
therefrom ("Acquired Code") and all programmers' or developers' notes, flow
charts and memoranda;
(d) a complete and accurate copy of the source code, the
compiled and executable version of which is the "Xxx Xxxxx" video game,
including a copy of the source code to the Game Engine licensed to Take-Two
under and pursuant to the License Agreement ("Acquired Code Copy") and all
programmers' or developers' notes, flow charts and memoranda;
(e) all of the other assets, properties and rights (whether
tangible or intangible) of the Sellers to the extent relating to the Acquired
Titles identified on Schedule A-2, including, but not limited to, port Acquired
Titles to any devices or operating in conjunction with any operating system
known today or hereafter developed;
(f) all of the Sellers' rights in and to all royalty payments
or other revenue, indemnification provisions, choses of action arising under the
indemnification provisions, insurance claims and any and all similar rights
accruing to and for the benefit of the Sellers under the Assigned Contracts;
(g) all Books and Records to the extent related to the
Acquired Titles; and
(h) each of the domain name registrations listed on Schedule
A-3.
"Assigned Contracts" means any and all rights under agreements
by and between either or both of the Sellers and any third party to the extent
relating to the Acquired Titles, including but not limited to the music and
motion picture rights and rights, subsidiary rights of any nature to comic
books, merchandising and strategy guides as such agreements and contracts of the
Sellers, as are identified on Schedule A-4 hereto.
"Books and Records" means all books, records, files,
documents, correspondence, lists (customer, subscriber, telephone, e-mail or
otherwise), drawings or specifications, product and sales literature, technical
and procedural manuals, advertising and promotional materials, studies, reports,
written material or filings or correspondence related to the Intellectual
Property and all other printed or written materials related to the Assets.
"Closing" means the consummation of the transactions
contemplated by this Agreement.
"Confidential Information" shall have the meaning set forth in
Section 6(b).
"Default" means an event of default, as defined in any
contract or other agreement or instrument, or any event which, with the passage
of time or the giving of notice or both, would constitute an event of default or
other breach under such contract or other agreement or instrument.
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"Development Agreement" means that certain Development
Agreement executed contemporaneously herewith among the Sellers and Take-Two in
the form attached to this Agreement as Exhibit A.
"Encumbrances" means all claims, mortgages, pledges, liens,
encumbrances, security interests and adverse interests of every nature
whatsoever.
"Excluded Assets" means:
(i) the rights in and to any derivative works created by the
end-user pursuant to the game editor for Xxx Xxxxx, which enables an end-user to
create new events and scenes;
(ii) the Game Engine;
(iii) Third Party Tools; and
(iv) the intellectual property rights to the names and logos
"Remedy Entertainment", "Apogee Software" and "3D Realms" and any derivations
thereof.
"Exploit", "Exploited" or "Exploitation" means the
exploitation of all rights in and to the Intellectual Property.
"Game Engine" shall have the meaning of Licensed Software set
forth in the License Agreement.
"Governmental Body" means any governmental,
quasi-governmental, state, county, city, or other political subdivision of the
United States or any other country, or any agency, court or instrumentality,
foreign or domestic, or statutory or regulatory body thereof.
"Intellectual Property" shall have the meaning set forth in
Section 4(c).
"License Agreement" means that certain license agreement
entered into contemporaneously herewith between Remedy and Purchasers in the
form attached to this Agreement as Exhibit B.
"Lock-Up Agreement" means that certain lock up agreement
entered into contemporaneously herewith between the Sellers and Take-Two in the
form attached to this Agreement as Exhibit C.
"Xxx Xxxxx" means the interactive software game entitled Xxx
Xxxxx.
"Xxx Xxxxx 2" means the interactive software game sequel to
Xxx Xxxxx to be developed by Remedy pursuant to the Development Agreement or any
third party engaged by Take-Two to develop such sequel or any port thereof.
"Order" means any order, writ, injunction, decree,
stipulation, judgment, award, determination, direction or demand or request of a
Governmental Body or arbitrator.
"Person" means any natural person, sole proprietorship,
corporation, limited liability company, partnership, joint venture,
unincorporated association, firm, trust or other entity.
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"Seller's Knowledge" or "Knowledge of the Seller" means (i)
the actual knowledge of each Seller or such Seller's officers or directors; or
(ii) that knowledge which the officers or directors of each Seller would have
obtained in the management of his or her business affairs after reviewing the
representations and warranties set forth in Section 4 below and making due
inquiry and exercising reasonable diligence with respect thereto.
"Tax" means any and all taxes, charges, fees, levies,
deficiencies or other assessments of whatever kind or nature including, without
limitation, all net income, gross income, profits, gross receipts, excise, real
or personal property, sales, ad valorem, withholding, social security,
retirement, excise, employment, unemployment, minimum, estimated, severance,
stamp, property, occupation, environmental, windfall profits, use, service, net
worth, payroll, franchise, license, gains, customs, transfer, recording and
other taxes or charges of any kind whatsoever, imposed by any Governmental Body.
"Taxing Authority" means the United States Internal Revenue
Service or any other applicable Government Body.
"Third Party Tools" shall have the same meaning as Third Party
Tools set forth in the License Agreement.
"Transaction Documents" means this Agreement, the Development
Agreement, the License Agreement and the Lock-up Agreement.
2. Purchase of Assets.
(a) Purchase and Sale of the Assets. The Purchasers shall
purchase from the Sellers, and the Sellers shall sell, transfer, convey, assign
and deliver, to the Purchasers, for the consideration specified below in this
Section 2, all of the Assets; provided, however, that all tangible Assets and
all US Rights in intangible Assets shall be allocated and purchased by Take-Two
and all International Rights in intangible Assets shall be allocated and
purchased by Maxcorp. Sellers' sale, transfer, assignment, conveyance and
delivery of the Assets to Purchasers is evidenced by the Sellers' delivery to
Purchasers of duly executed bills of sale, assignment and assumption attached
hereto as Exhibit 2(a)-1 and Exhibit 2(a)-2 (the "Bills of Sale"). To the extent
the Sellers own any Intellectual Property in the Acquired Titles, the Sellers
will assign such Intellectual Property (other than the Excluded Assets) in
accordance with the provisions hereof. To the extent the Sellers are licensed by
third parties to use any Intellectual Property in the Acquired Titles, the
Sellers shall obtain, without cost to the Purchasers, the consent of the
licensor of such Intellectual Property to the assignment of the license for such
Intellectual Property to the Purchasers and if Sellers are unable to obtain such
consent, the Sellers will endeavor to operate the Assets for the sole and
exclusive benefit of the Purchasers (Take-Two with respect to the US Rights and
Maxcorp with respect to the International Rights); provided that all rights in
the Game Engine and Third Party Tools shall be retained by Remedy and licensed
to Purchasers pursuant to the License Agreement.
(b) Assumption of Liabilities.
(i) Subject to the terms and conditions of this Agreement,
Take-Two shall assume and become responsible for, from and after the Closing
Date, all obligations and liabilities, to the extent not paid or discharged
prior to the Closing Date, under the Assigned Contracts (the "Assigned Contract
Liabilities"). On and after the Closing Date, and subject to the provisions of
Section 8 regarding indemnification, Take-Two shall have complete control over
the payment, settlement, or other disposition of, or any dispute involving, any
of the Assigned Contract Liabilities, and Take-Two shall conduct and control all
negotiations and proceedings with respect to the Assigned Contract Liabilities.
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(ii) Except for the Assigned Contract Liabilities,
Purchasers expressly do not assume, and shall not be deemed to have assumed,
under this Agreement or otherwise by reason of the transactions contemplated
hereby, any liabilities, debts, obligations, indebtedness and commitments of
either Seller (the "Retained Liabilities").
(iii) Purchaser may, from time to time at its election,
set off Take-Two Liabilities (as defined below) and any other payment
obligations owed to Sellers hereunder against any and all Assigned Contract
Liabilities.
(c) Payment of the Purchase Price. The Purchasers shall pay
the Sellers the purchase price for the Assets by delivering to the Sellers (i)
at Closing, one or more certificates representing Nine Hundred and Sixty Nine
Thousand Nine Hundred and Thirty Two Thousand (969,932) restricted shares (the
"Shares") of common stock of Take-Two, par value $.01 per share; provided,
however, that such Shares shall be subject to the Lock-Up Agreement , (ii) at
Closing, Ten Million ($10,000,000) U.S. dollars paid by Maxcorp by wire transfer
(the "Cash Component") to accounts designated by the Sellers and (iii) up to
Eight Million ($8,000,000) U.S. dollars in cash or immediately available funds
in four equal installments of Two Million ($2,000,000) U.S. dollars pursuant to
Section 2(d) below (the "Incentive Payments", and together with the payments
under subparagraphs (i) and (ii) above, the "Purchase Price"). The Purchase
Price includes all amounts due and payable to third parties and the Sellers
(including all advances due and payable by Purchasers to Remedy pursuant to the
Development Agreement and Take-Two Liabilities) in connection with the purchase
of all of the Assets and, other than the payment of the Purchase Price, no
additional payments shall be made by the Purchasers to the Sellers or any third
party. The Purchasers shall deliver directly to each of Remedy and Apogee (x) a
certificate representing 50% of the Shares (each of Remedy and Apogee shall
receive a certificate for 484,966 Shares) and (y) cash representing 50% of the
Cash Component ($5,000,000 to each of Remedy and Apogee). Similarly, all
Incentive Payments shall be split 50/50 and delivered and paid directly to each
of Remedy and Apogee accordingly.
(d) Incentive Payments.
(i) The Incentive Payments shall be due and payable and
shall be paid by the Purchasers (allocated between them in proportion to the
percentages set forth in Section 2(h)) to the Sellers as follows:
(A) $2,000,000 U.S. dollars on the Gold Master
Acceptance Date (as defined in the Development Agreement) (such payment being
referred to as the "Gold Master Date Payment"), but, except as provided below,
in no event later than October 1, 2003 and
(B) (1) $2,000,000 U.S. dollars ("First Incentive
Payment") on the date when the Purchasers, in good faith, have determined that
400,000 units, in the aggregate, of Xxx Xxxxx 2 have been Sold (as defined
below), (2) $2,000,000 U.S. dollars on the date upon which Purchasers, in good
faith, have determined that 800,000 units, in the aggregate, of Xxx Xxxxx 2 have
been Sold, and (3) $2,000,000 U.S. dollars on the date upon which the
Purchasers, in good faith, have determined that 1,200,000 units (each of the
sale of 400,000 units, 800,000 units and 1,200,000 units, each a "Threshold Unit
Amount"), in the aggregate, of Xxx Xxxxx 2 have been Sold;
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provided however, that (x) no amount shall be due and payable by the
Purchasers for sales of units of Xxx Xxxxx 2 in excess of 1,200,000 units, and
(y) if the Xxx Xxxxx 2 game is not ported to both the Sony Play Station 2
("PSX2") and Microsoft Xbox platforms ("Xbox") within one year after the
commercial release of Xxx Xxxxx 2 on the PC platform ("PC Commercial Release
Date") each Threshold Unit Amount shall be reduced by twenty percent (20%) for
each such platform for which the game was not released by Purchasers on or prior
to such date. As an example and for clarification purposes, (A) if Xxx Xxxxx 2
is released on PSX2 on or before the one year anniversary of the PC Commercial
Release Date (but is not released on Xbox on or before such date), then each
Threshold Unit Amount for each Incentive Payment will be reduced by 20% to
320,000 units, 640,000 units, 960,000 units, respectively or (B) if Xxx Xxxxx 2
is not released on either PSX2 or XBox on or before the one year anniversary of
the PC Commercial Release Date, then each Threshold Unit Amount for each
Incentive Payment will be reduced by 40% to 240,000, 480,000 and 720,000,
respectively). For purposes of this Section 2(d), units shall be "Sold" when
payment is actually received by Purchasers as a direct result of the selling
through of the units through any and all retail sales channels throughout the
world.
(ii) Notwithstanding anything to the contrary contained
herein,
(A) The Purchasers shall pay to the Sellers each of
the foregoing $2,000,000 installments within ten (10) days after the end of each
quarter in which each Threshold Unit Amount has been achieved,
(B) (x) in the event the Gold Master Acceptance Date
shall not occur by October 1, 2003 as such date may be extended pursuant to
Section 3(c) of the Development Agreement (and in addition to the rights of
development pursuant to Section 6(e)), the Sellers shall forfeit all rights with
respect to the Gold Master Date Payment; (y) in the event the Gold Master
Acceptance Date shall not occur by January 1, 2004 as such date may be extended
pursuant to Section 3(c) of the Development Agreement, the Sellers shall forfeit
all rights with respect to the First Incentive Payment, and such amounts shall
not be due and payable or paid by the Purchasers; and (z) in the event that the
Gold Master Acceptance Date shall not occur by October 1, 2004 as such date may
be extended pursuant to Section 3(c) of the Development Agreement, the Seller's
shall forfeit all rights with respect to all Incentive Payments (including, the
Gold Master Date Payment, the First Incentive Payment and any and all other
payments identified in Section 2(c)(iii), other than the Advance payment (as
such term is defined in the Development Agreement)); and
(C) Payments due to Sellers under this Section 2(d)
shall accrue interest daily at the rate of five percent (5%) per annum beginning
on the date that is fourteen (14) days after the applicable due date (as
determined by this Section 2(d));
provided, however, that all other rights and obligations of Purchasers
and the Sellers under this Agreement shall remain in full force and effect.
(iii) Audit Procedure
(A) Purchasers shall prepare and deliver to Sellers on
a quarterly basis, a statement (the "Unit Sales Statement") setting forth in
reasonable detail the determination by Purchasers of the units of Xxx Xxxxx 2
that have been Sold ("Units Sold") at the end of the most recent quarter just
ended. If the Sellers disagree with the Unit Sales Statement, the Sellers shall
deliver to Purchasers a statement executed by both Sellers describing the
objections thereto (the "Sellers' Statement") within 15 days after the delivery
by Purchasers of the Unit Statement. The Sellers and Purchasers shall use
reasonable efforts to resolve any disputes set forth in the Sellers' Statement,
but if a final resolution is not obtained within 30 days after the Sellers'
Statement is received by the Purchasers, any such remaining disputes shall be
resolved by Pricewaterhouse Coopers LLP (the "Selected Accounting Firm").
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(B) The parties shall submit in writing their
respective final positions regarding any disputed matters arising out of the
Unit Sales Statement to the Selected Accounting Firm, and the Selected
Accounting Firm shall prepare a written report to the Sellers and Purchasers
that shall address its resolution of the disputed items and shall make any
required adjustments to the Units Sold. The determination of the Units Sold by
the Selected Accounting Firm shall be final, binding and conclusive on all
parties hereto.
(C) As soon as practicable, but in any event within
ten (10) business days after the Units Sold is finally determined pursuant to
Section 2(d)(iii)(A) or (B), as the case may be, and if and to the extent any
Threshold Unit Amount has been satisfied based on such Units Sold, the Sellers
shall be entitled to immediate payment of the applicable Incentive Payment.
(D) In the event the Sellers disagree with the Unit
Sales Statement, the Selected Accounting Firm shall have full access to the
Purchasers books, records and personnel in order to review the Unit Sales
Statement.
(E) The Selected Accounting Firm costs and expenses in
determining the Unit Sales shall be paid by the Sellers, unless any Threshold
Unit Amount has been satisfied and the Unit Sales Statement indicated otherwise.
(e) Further Assurances. At any time and from time to time
following the date hereof, at the request of the Purchasers and without further
consideration, the Sellers shall promptly execute and deliver such instruments
of sale, transfer, conveyance and assignment and take all such other action as
is reasonably necessary to more effectively transfer, convey and assign to
Take-Two the tangible Assets and the US Rights in and to the intangible Assets
and to Maxcorp the International Rights in and to the intangible Assets, and to
evidence and confirm the Purchasers' rights to, title in and ownership of, the
Assets, and to assist the Purchasers in exercising all rights with respect
thereto and to carry out the purpose and intent of this Agreement.
(f) Transfer Taxes. Any and all federal, state, county or
local excise, stamp, transfer, registration, sales and other Taxes, fees and
duties (including any interest, additions to tax and penalties with respect
thereto) and any and all transfer, registration, recording or similar fees and
charges imposed in connection with the consummation of the transactions
contemplated by this Agreement (collectively, "Transfer Taxes") shall be borne
by the Sellers.
(g) Purchase Price Allocation. The parties hereto agree that
the Purchase Price shall be allocated as set forth on Schedule 2(g) based on the
relative fair market value thereof, as required by Section 1060 of the Internal
Revenue Code of 1986, as amended.
(h) Take-Two and Maxcorp Percentage of Obligations. With
respect to the Assigned Contract Liabilities, the Incentive Payments, the
Advance payment under the Development Agreement and any and all other payments,
or obligations of payment pursuant to this Agreement, Take-Two shall be liable
for and obligated to pay 72% of such payments, liabilities and obligations and
Maxcorp shall be liable for and obligated to pay 28% of such payments,
liabilities and obligations. The foregoing allocation has been set by the
Purchasers to reflect a good faith estimate of the relative value of the
tangible Assets plus the US Rights in the intangible Assets being transferred to
Take-Two and the International Rights in the intangible Assets being transferred
to Maxcorp.
(i) Termination of Existing Agreements. The Sellers and
Purchasers hereby agree that, any agreement identified on Schedule 2(i) is
terminated as of the date hereof without any further liability to any party
hereto; provided, however, that notwithstanding Section 11(d):
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(i) with respect to Agreements 1, 2, 3 and 4 listed on
Schedule 2(i) ("Xxx Xxxxx Game Agreements"), (A) Take-Two shall continue to be
responsible for, from and after the Closing Date and to the extent not paid or
discharged prior to the Closing Date, royalty payments owed to the Sellers with
respect to Xxx Xxxxx unit Sales, pursuant to such Xxx Xxxxx Game Agreements
("Take-Two Liabilities"), (B) the Purchasers shall continue to comply with the
audit provisions pursuant to the Xxx Xxxxx Game Agreements, (C) the Purchasers
and the Sellers agree that the representations and warranties, and the
indemnification provisions pursuant to the Xxx Xxxxx Game Agreements shall be
deemed incorporated herein to the extent of the subject matter of the Xxx Xxxxx
Game Agreements; provided, however, that any inconsistencies between the
indemnification provisions in the Xxx Xxxxx Game Agreements and this Agreement
shall be determined in favor of this Agreement, and (D) the Purchasers and the
Sellers agree that the confidentiality provisions of the Xxx Xxxxx Game
Agreements shall be deemed superceded by Section 6(b) hereto and any and all
information subject to the confidentiality provisions under such agreements
shall be deemed Confidential Information under this Agreement,
(ii) with respect to Agreements 6 and 7, to the extent not
terminated on the Closing Date, the Sellers shall immediately after the Closing
Date use their best efforts to terminate such Agreements after the Closing Date;
(iii) With respect to royalty payments owed to Apogee on
Xxx Xxxxx unit Sales pursuant to the Xxx Xxxxx Game Agreements, (x) Take-Two's
continuing obligations and liabilities shall not exceed $1,500,000 and (y)
Take-Two's continuing obligations and liabilities shall cease to exist on or
after May 20, 2005 (for clarification purposes, Apogee's portion of the Take-Two
Liabilities is capped at a maximum of $1,500,000 and no Take-Two Liabilities
shall be paid to Apogee on or after 3 years from the date hereof);
(iv) All Take-Two Liabilities shall be split 50/50 and
delivered and paid directly to each of Remedy and Apogee accordingly.
3. Deliveries.
(a) Sellers' Deliveries. Except as specifically provided
below, simultaneously with the execution of this Agreement, Sellers shall
execute and/or deliver (or cause to be executed and/or delivered) to Purchasers:
(i) the Bills of Sale;
(ii) all Books and Records;
(iii) a registrant name change agreement in form
reasonably satisfactory to Purchasers to effect a transfer to Purchasers of all
domain name registrations listed on Schedule 3(a)(iii); provided, however, that
to the extent not executed prior to the Closing Date, the Sellers shall use
their best efforts to execute such Agreements after the Closing Date;
(iv) the Development Agreement;
(v) the License Agreement;
(vi) the Lock-Up Agreement; and
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(vii) a certificate from each Seller, dated the Closing
Date and signed by its secretary or assistant secretary certifying (a) that the
attached copies of its respective certificate of incorporation or organizational
documents, and consents or resolutions of its officers or partners or board of
directors authorizing the execution, delivery and performance and approving this
Agreement and the other Transaction Documents and the documents and instruments
required hereunder to which such Seller is a party and the transactions
contemplated hereby and that each such document is true, complete and correct
and remain unamended and in full force and effect, and (b) the incumbency and
specimen signature of each of its officers executing this Agreement or any other
Transaction Document to which such Seller is a party or any other document
delivered in connection herewith and therewith on such Sellers' behalf.
(b) Purchasers' Deliveries. Simultaneously with the execution
of this Agreement, Purchasers shall execute and/or deliver (or cause to be
executed and/or delivered) to Seller:
(i) the portion of the Purchase Price payable on the date
hereof in accordance with Section 2(c);
(ii) the Development Agreement;
(iii) the License Agreement;
(iv) the Shares; and
(v) a certificate dated the Closing Date and signed by the
secretary, assistant secretary or other officer of each Purchaser certifying (a)
that the attached copies of the resolutions of its board of directors or other
governing body, duly adopted and in effect, which authorize the purchase of the
Assets from the Sellers, the execution, delivery and performance of this
Agreement and the other Transaction Documents and the documents and instruments
required hereunder to which each such Purchaser is a party and the consummation
of the transactions contemplated hereby and thereby, and the issuance of the
Shares to the Sellers, and that each such document is true, complete and correct
and remain unamended and in full force and effect, and (b) the incumbency and
specimen signature of each of such Purchaser's officers executing this Agreement
or any other Transaction Document to which each such Purchaser's is a party or
any other document delivery in connection herewith and therewith on Purchaser's
behalf.
4. Representations, Warranties and Covenants of the Sellers. (i) The
Sellers, jointly and severally, represent, warrant and covenant to the
Purchasers, and (ii) each of Remedy and Apogee hereby make to the other each of
such representations and warranties (provided, however, that nothing herein
shall impair the joint and several nature of such representations and warranties
with respect to the Purchasers, and the right of either of them to enforce any
breach of any such representation or warranty shall be subordinated to the right
of the Purchasers to obtain recovery therefor against either or both of them):
(a) Organization. Apogee represents that it is a Texas limited
partnership duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization, and it has no subsidiaries and
Affiliates. Remedy represents that it is a Finnish corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation, and it has no subsidiaries or Affiliates. Each Seller is
qualified to do business and in good standing in each state where the character
of the real properties owned or held under lease or the nature of business
transacted by such Seller makes qualification therein by such Seller as a
foreign corporation necessary.
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(b) Enforceable Obligation; Due Authorization. Each Seller has
all necessary right, power and authority to enter into and to perform its
obligations under this Agreement and the other Transaction Documents to which it
is a party and the transactions contemplated hereby and thereby, and the
consummation of the transactions contemplated hereby and thereby by each Seller
have been duly authorized by all necessary actions by its board of directors or
other similar governing body, and to the extent necessary, by its stockholders.
The execution, delivery and performance of this Agreement and all agreements,
instruments and documents to be delivered by each Seller (i) are within the
power and authority of such Seller, (ii) do not require the consent or approval
of or filing with any Governmental Body or any other Person other than as
otherwise provided herein, (iii) will not conflict with, result in the breach
of, or constitute a Default under, any of the terms, conditions or provisions of
the certificate of incorporation, by-laws, partnership agreement or other
governing documents of such Seller, (iv) will not violate any statutes, rules,
regulations and ordinances ("Laws") or Order of any Governmental Body, (v) will
not conflict with, result in the breach of, or constitute a Default under any
indenture, mortgage, deed of trust, lease, agreement, contract or other
instrument to which such Seller is a party or by which such Seller or any of its
properties are bound, and (vi) will not result in the creation or imposition of
any Encumbrance upon any of the property of such Seller, other than as
contemplated by this Agreement and the documents executed in connection with the
transactions contemplated hereby. This Agreement and the other Transaction
Documents executed and delivered in connection herewith by each Seller have been
duly authorized by all requisite corporate or other actions of Seller, have been
duly executed and delivered by each Seller, and constitute the legal, valid and
binding obligations of each Seller enforceable in accordance with their
respective terms.
(c) Intellectual Property.
(i) All trademarks, service marks, trade names, Internet
domain names, designs, logos, slogans, and general intangibles of like nature,
incorporated in the Acquired Titles or by which same have heretofore been
marketed by the Sellers, together with all goodwill, registrations and
applications related thereto (other than such items identified in paragraph (iv)
of the Excluded Assets definition) (collectively, "Trademarks"); patents and
industrial design registrations or applications in and to any and all of the
Assets (including any continuations, divisionals, continuations-in-part,
renewals, reissues and applications for any of the Assets); copyrights in and to
any or all of the Assets (including any registrations and applications
therefor); computer software programs or applications (in both source and object
code form) constituting the Acquired Code and the Acquired Code Copy ("Software
Programs"); technical documentation relating to the Software Programs
("Technical Documentation"); "mask works" (as defined under 17 U.S.C. ss. 901)
and any registrations and applications for "mask works"; technology, trade
secrets and proprietary or other confidential information, know-how, proprietary
processes, formulae, algorithms, models, technical and engineering data,
computer discs and tapes, plans, diagrams and schematics and methodologies
relating to the Assets (collectively, "Trade Secrets"); and moral rights (to the
greatest extent allowed by applicable laws); rights of publicity and privacy
relating to the use of the names, likenesses, voices, signatures and
biographical information of real persons, directly or indirectly used by the
Seller with respect to the Acquired Titles are hereinafter referred to as the
"Intellectual Property".
(ii) (1) Schedule 4(c)(ii)(1) contains a true and complete
list of all of the Sellers' U.S. and foreign (A) patents and patent
applications, (B) Trademark registrations and applications therefor and material
unregistered Trademarks; (C) copyright registrations and applications therefor;
(D) Trade Secrets; (E) mask works; and (F) other filings and formal actions made
or taken pursuant to federal, state, local and foreign laws by the Sellers to
protect the Sellers' interests in the Intellectual Property. With respect to
items (A), (B), (C), (D), (E) and (F) above, the name of the registrant, owner
or assignee, if applicable, shall be set forth opposite each item on such
Schedule 4(c)(ii)(1). The applications and registration material with respect to
each item on Schedule 4(c)(ii)(1) have been provided to Purchasers. The Sellers
are listed in the records of the appropriate U.S., state and foreign registry as
the sole current owner of record for the Sellers' respective applications and
registrations listed on Schedule 4(c)(ii)(1). With respect to the applications
listed on Schedule 4(c)(ii)(1), each such application has been prosecuted and
maintained in full compliance with all applicable rules, policies and procedures
of the United States Patent and Trademark Office or with respect to foreign
rights, other competent international authorities, with the exception of those
applications that are indicated to be abandoned on Schedule 4(c)(ii)(1).
13
(2) Purchasers and the Sellers agree that the Sellers
retain all rights with respect to their respective trade names, assumed names
and other trademark, service marks, logos and other indicia of source identified
in paragraph (iv) of the Excluded Assets definition and any use thereof by
Purchasers must be authorized by Sellers in writing and subject to such Sellers'
trademark guidelines.
(iii) The Intellectual Property consists solely of items
and rights that are: (A) owned by the Sellers; (B) in the public domain; or (C)
rightfully used by the Sellers and its successors pursuant to a valid license.
(iv) The conduct of Sellers' business with respect to the
Assets as conducted prior to the Closing Date did not infringe (when conducted)
and as currently conducted or as currently contemplated to be conducted does not
infringe (either directly or indirectly, such as through contributory
infringement) any intellectual property right owned or controlled by any third
party. There is no pending or, to Sellers' Knowledge, threatened claim, suit,
arbitration or other adversarial proceeding before any court, agency, arbitral
tribunal, or registration authority in any jurisdiction (collectively, "Claims")
(A) involving the Intellectual Property owned by Sellers, or, to Sellers'
Knowledge, Intellectual Property licensed to the Sellers or (B) alleging that
the activities or the conduct of the Sellers' business does or will infringe
upon, violate or constitute the unauthorized use of the intellectual property
rights of any third party or challenging the ownership, use, validity,
enforceability or registrability of any Intellectual Property. Except as set
forth in Schedule 4(c)(iv), there are no settlements, forbearances to xxx,
consent judgments or orders or similar obligations other than license agreements
in the ordinary course of business that (a) restrict Sellers' rights to use any
of the Intellectual Property, (b) restrict the Sellers in order to accommodate a
third party's intellectual property rights or (c) permit third parties to use
any Intellectual Property. To Sellers' Knowledge (x) all registered, granted or
issued patents, mask works, Trademarks and copyrights held by the Sellers are
valid, enforceable and subsisting or pending and (y) there has been no denial,
refusal, lapse or similar action by any governmental authority with respect to
any patent, copyright or Trademark application filed by or on behalf of the
Sellers. To Sellers' Knowledge, there is no unauthorized use, infringement or
misappropriation of any of Intellectual Property by any third party, employee or
former employee.
(v) Except as set forth on Schedule 4(c)(v), there are no
royalties, fees, honoraria or other payments payable by the Sellers to any
Person by reason of the ownership, development, use, license, sale or
disposition of Intellectual Property.
(vi) All current personnel, including employees, agents,
consultants, designers and contractors, who have contributed to or participated
in the conception and development of any part of Intellectual Property on behalf
of the Sellers have executed nondisclosure agreements or other agreements of
similar nature (with similar obligations on the parties thereto) that adequately
protect the Sellers' proprietary interests in the Intellectual Property and
either (A) have been a party to a "work-for-hire" arrangement or agreements with
the Sellers in accordance with applicable national and state law that has
accorded the Sellers full, effective, and exclusive ownership of all tangible
and intangible property thereby arising, or (B) have executed appropriate
instruments of assignment in favor of the Sellers as assignee that have conveyed
to the Sellers effective and exclusive ownership of all tangible and intangible
property thereby arising. Schedule 4(c)(vi) sets forth a list of all such
agreements identified in this Section 4(c)(vi) and samples of such agreements
have been delivered to Purchasers. No current or former partner, director,
officer, or employee of the Sellers (or any predecessor in interest) will, after
giving effect to the transactions contemplated herein, own or retain any rights
in or to any of Intellectual Property.
14
(vii) Schedule 4(c)(vii) sets forth (A) all licenses or
other agreements which the Sellers have granted to or entered into with any
third party with respect to the Intellectual Property and (B) all Intellectual
Property licensed by the Sellers from a third party other than licenses for off
the shelf software. Each license, sublicense or agreement relating to
Intellectual Property is valid, binding, in full force and effect and,
enforceable in accordance with its terms. The Sellers have performed all
material obligations required to be performed to date under such license,
sublicense or agreement and is not in breach or default thereunder and, to
Sellers' Knowledge, there exists no breach by any other party thereto and no
event or circumstance which will result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default by
the Sellers thereunder.
(viii) The Sellers have taken reasonable measures to
protect the confidentiality of the Sellers' Trade Secrets. To Sellers'
Knowledge, there has been no misuse or misappropriation of any Trade Secret by
any person or entity. Without limitation of the foregoing, except for the
agreements set forth in Schedule 4(c)(viii), the Trade Secrets and the source
code and system documentation relating to the Software Programs relating to the
internal systems used by the Sellers (A) has, at all times been maintained in
strict confidence, (B) has been disclosed by the Sellers only to employees,
contractors or licensees who have had a "need to know" the contents thereof in
connection with the performance of their duties imposed by or for the Sellers
and who are legally obligated by written agreement to preserve the
confidentiality of such Trade Secret, (C) have not been licensed or disclosed to
any third party, and (D) are not the subject of any escrow or similar agreement
giving any third party rights in such formulas, source code and/or system
documentation upon the occurrence of certain events.
14
(ix) Schedule 4(c)(ix) hereto contains a complete list of
(A) all software libraries, compilers and other third-party software sold with,
incorporated into or used in the development of the Software Programs and (B)
all material software systems and applications used by the Sellers in the
operation of the Assets. Schedule 4(c)(ix) hereto lists all license agreements
by which the Sellers are bound for the use of such software and, if any such
software is not licensed, the basis of the use of such software by the Sellers.
All use of each such software item by the Sellers has been in full compliance in
all material respects with the license agreement or other right of use listed
for such item on Schedule 4(c)(ix) hereto.
(x) Except with respect to demonstration or trial copies,
to Sellers' Knowledge no portion of any Software Program contains or will
contain any "back door," "time bomb," "Trojan horse," "worm," "drop dead
device," "virus" or other software routines or hardware components designed to
permit unauthorized access; to disable or erase software, hardware, or data; or
to perform any other similar actions.
(xi) Except as set forth on Schedule 4(c)(xi), the Sellers
have not taken any action (or failed to take any action), conducted its business
with respect to the Assets or used or enforced its Trademarks, in each case, in
a manner that would result in the abandonment, cancellation, forfeiture,
relinquishment or unenforceability of any of the Trademarks and the Sellers have
taken all reasonable steps to protect its rights in and to each of such
Trademarks and to prevent the unauthorized use thereof by a third party.
15
(d) Assigned Contracts.
(i) Except as set forth on Schedule 4(d)(i) with respect
to contracts that have terminated, each Assigned Contract is valid, in full
force and effect, and is enforceable by the Sellers entering into such Assigned
Contract in accordance with its terms and upon the consummation of the
transactions contemplated hereby, will continue to be legal, valid, binding,
enforceable and in full force and effect on its terms.
(ii) (A) The Sellers have not and, to the knowledge of the
Sellers, no other Person has, violated, breached, or declared or committed any
default under any Assigned Contract; (B) the Sellers have not created any
circumstance or condition, and, to the Knowledge of the Sellers, no event has
occurred, and no circumstance or condition exists, that would (with or without
notice or lapse of time) (w) result in a violation or breach of any of the
provisions of any Assigned Contract, (x) give any Person the right to declare a
default or exercise any remedy under any Assigned Contract, (y) give any Person
the right to accelerate the maturity or performance of any Assigned Contract, or
(z) give any Person the right to cancel, terminate or modify the terms of any
Assigned Contract; (C) except as set forth on Schedule 4(d)(ii), the Sellers
have not received any notice or other communication (in writing or otherwise)
regarding any actual, alleged, possible or potential violation or breach of, or
default under, any Assigned Contract; and (D) except as set forth on Schedule
4(d)(ii), the Sellers have not waived any of its rights under any Assigned
Contract. Except for the Assigned Contracts, there is no agreement, written or
oral, between the Sellers and any other party with respect to the Acquired
Titles. Except for the sublicenses identified on Schedule A-4, the Sellers have
not assigned and, to the Sellers' Knowledge, their respective assignees
(including Affiliates of the Sellers) have not assigned, any of their rights
(including by way of sublicense) or granted any rights under the Assigned
Contracts.
(e) Title to Assets: Condition.
(i) The Assets transferred hereunder constitute all of
Sellers' properties, assets, rights, contracts, leases, permits, licenses and
personal property (including, without limitation, all Intellectual Property
contained therein) in and to the Assets; and, except as set forth in Schedule
4(e)(i), the Sellers are not retaining any properties, assets, rights,
contracts, leases, permits, licenses and personal property (including, without
limitation, all Intellectual Property contained therein) for the Acquired
Titles.
(ii) The Assets constitute all of the properties, assets,
rights, contracts and Intellectual Property heretofore utilized by the Sellers
in the Acquired Titles; and no Asset is owned by a Person other than the
Sellers, except for those Assets that are licensed to the Sellers, which
licenses are set forth on Schedule 4(e)(ii).
(iii) Each Seller has complied with all obligations under
all licenses that are part of the Assets to which such Seller is a party or to
which such Seller has succeeded by merger or acquisition of the stock or assets
of any other Person and under which such Seller is in occupancy and all such
licenses are in full force and effect. The Sellers enjoy peaceful and
undisturbed possession or use under such licenses and to Sellers' Knowledge no
other party to any such license is in Default thereunder.
(f) Litigation: Observance of Laws.
(i) Litigation. Except as set forth on Schedule 4(f)(i),
(i) no Seller is a party to any litigation, at law or in equity, or any
proceeding before any Governmental Body or any arbitration pending or threatened
against or relating to the ownership or use of the Assets or which seeks to
enjoin the consummation of, or questions the validity of, any of the
transactions contemplated hereby, or which would question the validity or
enforceability or impair the validity or enforceability of or the ability of any
Seller to perform its obligations under this Agreement or any agreement
contemplated hereby or which would question the validity or enforceability or
impair the ability of any Seller to perform its obligations under any
instrument, document or agreement contemplated hereby, and no Order of any
Governmental Body or arbitrator has been issued against or binds any Seller that
has, or could have, a material adverse effect on any Seller's ability to
consummate the transactions contemplated hereby and (ii) to the Knowledge of the
Sellers, no basis exists for the commencement of any such litigation or
proceeding.
16
(ii) Governmental Order Violations. No Seller is in
violation of or default with respect to any Order where such violation or
default is likely to have a material adverse effect on any Seller's ability to
consummate the transactions contemplated hereby, and, to the Knowledge of the
Sellers, there is no basis for there to be declared any such violation or
default that is likely to have a material adverse effect on any Seller's ability
to consummate the transactions contemplated hereby.
(iii) Violations of Laws. No Seller is in violation of any
Laws that would reasonably be expected to have a material adverse effect on any
Seller's ability to consummate the transactions contemplated hereby.
(g) No Right of Action. The execution of this Agreement and
the other agreements, instruments and documents contemplated hereby and the
completion of the transactions contemplated hereby and thereby, shall not cause
Purchaser or its Affiliates to be liable for damages to any other Person, or
give such Person any equitable right against Purchaser or any Seller, or any of
their respective assets by reason of any agreement or arrangement to which any
Seller is a party.
(h) Securities Act.
(i) Each Seller is acquiring the securities pursuant to
this Agreement solely for their own account, and not as nominee or agent for any
other person and not with a view to, or resale in connection with, any
distribution thereof (within the meaning of the Securities Act), other than
pursuant to a registered offering as contemplated by the Registration Rights
Agreement;
(ii) Apogee represents that it is an "accredited investor"
as such term is defined under Rule 501(c) promulgated by the Securities and
Exchange Commission (the "SEC") under the Securities Act;
(iii) Remedy represents that (A) it is purchasing the
Shares for its own account and that Remedy is not a "US person" (as that term is
defined in Rule 902(k) of Regulation S) and at the time of receipt of the Shares
and execution of this Agreement it was located outside the United States for
purposes of Regulation S, (B) the re-sale of the Shares has not been
pre-arranged with any buyer located in the United States, (C) it is not a
"Distributor" as that term is defined in Rule 902(d) of Regulation S, (D) the
Shares have not been and will not be registered under the Securities Act and may
not be offered or sold in the United States or to, or for the account or benefit
of, US persons, except as permitted under Regulation S promulgated under the
Securities Act of 1933, (E) it will not offer, resell, pledge or otherwise
transfer Shares except (x) in an offshore transaction in accordance with Rule
903 or 904 of Regulation S or (y) pursuant to an exemption from registration
under the Securities Act, in each case in accordance with any applicable
securities laws of any state of the United States or any other jurisdiction, (F)
neither it nor any person or entity acting on its behalf has conducted or will
conduct any "directed selling efforts" as that term is defined in Rule 902(c) of
Regulation S or has conducted or will conduct any general solicitation relating
to the offer and sale of the Shares.
17
(iv) Each Seller acknowledges that the securities being
acquired by it pursuant to this Agreement have not been registered under the
Securities Act or qualified under any state securities laws, or any other
applicable blue sky laws in reliance, in part, on each Seller's representations,
warranties, and agreements herein;
(v) Each Seller understands that the securities being
acquired by it pursuant to this Agreement constitute "restricted securities"
under the Securities Act in that the securities will be acquired from Purchaser
in a transaction not involving a public offering, and that the securities may be
resold without registration under the Securities Act only in certain limited
circumstances and that otherwise the securities must be held indefinitely;
(vi) Without limiting the representations set forth above,
no Seller will make any disposition of all or any part of the securities
acquired by it pursuant to this Agreement that will result in the violation by
any Seller or by Purchaser of the Securities Act, any state securities laws, or
any other applicable securities law; and
(vii) Each Seller has received and reviewed such
information such Seller considers necessary or appropriate for deciding whether
to acquire the securities being issued to it pursuant to this Agreement. Each
Seller has had an opportunity to ask questions and receive answers from
Purchaser regarding the terms and conditions of purchase of such securities and
regarding the business, financial affairs, and other aspects of Purchaser and
has further had the opportunity to obtain all information (to the extent
Purchaser possesses or can acquire such information without unreasonable effort
or expense) which such Seller deems necessary to evaluate the investment and to
verify the accuracy of information otherwise provided to such Seller.
(i) Full Disclosure. No financial statement, Exhibit or
Schedule or document required by this Agreement to be prepared or furnished by
or on behalf of the Sellers to the Purchaser in connection with this Agreement
or any agreement contemplated hereby or delivered pursuant hereto contained or
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The Sellers shall notify Purchaser
promptly of the occurrence of any event or the discovery of any fact that would
make any of the foregoing incorrect.
5. Representations, Warranties and Covenants of the Purchasers. The
Purchasers, jointly and severally, represent, warrant and covenant to each of
the Sellers as follows:
(a) Organization. Take-Two is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Maxcorp is a Bermuda entity duly organized, validly existing and in good
standing under the laws of Bermuda.
(b) Enforceable Obligations; Due Authorization. Each Purchaser
has all necessary right, power and authority to enter into and to perform its
obligations under this Agreement and the other Transaction Documents to which it
is a party and the transactions contemplated hereby and thereby, and the
consummation of the transactions contemplated hereby and thereby by each
Purchaser has been duly authorized by all necessary actions by its board of
directors or other similar governing body. The execution, delivery and
performance of this Agreement and all agreements, instruments and documents to
be delivered by each Purchaser (i) are within the power and authority of such
Purchasers, (ii) do not require the consent or approval of or filing with any
Governmental Body or any other Person other than as otherwise provided herein,
(iii) will not conflict with, result in the breach of, or constitute a Default
under, any of the terms, conditions or provisions of the certificate of
incorporation or partnership agreement or By-laws or other organizational
documents of such Purchaser, (iv) will not violate any Laws or Order of any
Governmental Body, (v) will not conflict with, result in the breach of, or
constitute a Default under any indenture, mortgage, deed of trust, lease,
agreement, contract or other instrument to which such Purchaser is a party or by
which such Purchaser or any of its properties are bound, and (vi) will not
result in the creation or imposition of any Encumbrance upon any of the property
of such Purchasers, other than as contemplated by this Agreement and the
documents executed in connection with the transactions contemplated hereby. This
Agreement and the other Transaction Documents executed and delivered in
connection herewith by each Purchaser constitute the legal, valid and binding
obligations of such Purchaser enforceable in accordance with their respective
terms.
18
(c) Accuracy of Exchange Act Filings. All filings (as amended)
made by Take-Two under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") filed with the Securities and Exchange Commission (the
"Commission") complied in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder, and
such filings (as amended) did not contain an untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein not
misleading.
(i) Common Stock. The Shares to be issued to the Sellers
hereunder have been duly authorized and validly issued and, when issued, will be
fully paid and non-assessable; the Shares to be issued to the Sellers will not
be issued in violation of the statutory, or, to the actual knowledge of any
senior executive officers of Take-Two, contractual preemptive or other similar
rights of any securityholder of Take-Two.
6. Post-Closing Covenants. The Purchasers and the Sellers agree as
follows:
(a) Expenses and Finder's Fees. Purchasers and the Sellers
will bear their own expenses in connection with this Agreement and the
transactions contemplated. The Sellers and Purchasers each represent and warrant
to the other that the negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on in such a manner as not to
give rise to any valid claims against the other party for a brokerage
commission, finder's fee or other like payment.
(b) Confidentiality. Purchasers and the Sellers, their
respective agents and employees, shall maintain in the strictest confidence all
Confidential Information furnished to such party by the other party in
connection with this Agreement and, except as otherwise expressly required by
law or court order, shall not (x) use any such Confidential Information for any
purpose other than the purpose for which it was originally disclosed to the
receiving party, and (y) disclose any of such Confidential Information to any
third party (except as provided in the Game Development Agreement). As used
herein, "Confidential Information" shall mean all nonpublic or proprietary
information relating to Purchasers, the Sellers, the Assets, the Assigned
Contracts or this Agreement and the other Transaction Documents (including the
other documents or instruments contemplated hereby); provided, however, that
Confidential Information does not include information that (x) was, at the time
of its receipt, or later becomes, readily available to the general public other
than through the breach of this provision by the recipient thereof, or their
officers, directors, employees, subsidiaries, affiliates or agents, (y) was
known to the recipient prior to its disclosure by the disclosing party, or (z)
was disclosed to the recipient on a nonconfidential basis by a person who had a
bona fide right to make such disclosure. Notwithstanding any other provision of
this Agreement, this Section 6(b) shall survive termination of this Agreement.
(c) Use of Name. Each Seller agrees on its own behalf and on
behalf of its stockholders, officers, directors and Affiliates, from and after
the Closing Date, not to use any trade names, assumed names and other
trademarks, service marks, logos and other indicia of source that previously or
are currently used by Seller in the Acquired Title (including, but not limited
to, "Xxx Xxxxx" or any derivation thereof) other than the names and logos
identified in paragraph (iv) of the Excluded Assets definition; provided that,
notwithstanding the foregoing, each Seller (and its stockholders, officers,
directors and Affiliates) shall have the right solely to reference the trademark
"Xxx Xxxxx" and/or "Xxx Xxxxx 2" in private correspondence, conversations or
solicitations for employment provided such references are factual and accurate
and refer to itself as an original creator and/or developer of Xxx Xxxxx
character. In no event shall any such reference appear on any Web site or be
used to sell, offer for sale, endorse, sponsor, promote or market any products
or services developed or licensed or provided by or on behalf of such Seller,
unless otherwise authorized in writing by Purchasers.
19
(d) Domain Name Redirection. To the extent not already in
effect as of the Closing Date, each Seller shall promptly reprogram each World
Wide Web site not set forth on Schedule A-3 hereof and that is owned, operated
or controlled by such Seller or any Affiliate thereof which and that displays,
offers for sale or license, or refers graphically or textually to any of the
Acquired Titles or any of the Trademarks so that either:
(i) all such displays, offer or references are eliminated
therefrom; or
(ii) a person directed from a third party's hyperlink to
any such web page containing such display, offer or reference is immediately,
and without any user intervention or action, redirected to a web page address
which Purchasers shall supply to the Sellers;
(e) Xxx Xxxxx 2 Development Rights. In the event the Gold
Master Acceptance Date has not occurred on or prior October 1, 2004 as such date
may be extended pursuant to Section 3(c) of the Development Agreement, Take-Two
shall, in addition to its rights set forth in Section 2(d)(ii), with the
Sellers' full cooperation, have the right, alone or by engagement of one or more
third-party developers, to complete the development of Xxx Xxxxx 2 (whether in
accordance with the Development Agreement, or otherwise).
(f) Noncompetition.
(i) Each Seller individually covenants to Purchasers that,
subject to the provisions of Section 6(f)(ii), from the Closing Date until the
tenth (10th) anniversary of the Closing Date, such Seller shall not (without the
prior written consent of Purchasers), and no principal stockholders or partners
identified on the signature page to this Agreement shall (without the prior
written consent of Purchasers), knowingly permit any of its subsidiaries,
Affiliates, officers, directors, employees, agents or representatives
(collectively, the "Covenantors"), directly or indirectly, to (x) develop,
produce, build, design, or otherwise create in any manner, any Competitive
Product, (y) enter into a transaction to acquire (whether by merger, asset
purchase or otherwise similar type transaction) any Competitive Product or any
competitor of the Purchasers then developing or owning a Competitive Product, or
(z) as a sole proprietor, member of a partnership, stockholder, investor,
officer or director of a corporation, or as an employee, associate, consultant
or agent of any person, partnership, corporation or other business organization
or entity, render any service (including the making of investments in or
otherwise providing capital to) directly or indirectly related to a Competitive
Product for or on behalf of any competitor (or any person or entity that is
reasonably anticipated to become a competitor within the term hereof) of the
Purchasers or their respective subsidiaries or Affiliates. A person,
partnership, corporation or other business organization or entity is "a
competitor of the Purchasers" if it is then designing, developing and/or
marketing any Competitive Product. For purposes hereof, a "Competitive Product"
is any original third person perspective 3D simulated game based in a modern
(currently timed) urban city (e.g., Los Angeles, Tokyo, London, New York,
Chicago, Las Vegas) with a male main character in the role of a police officer
or ex-police officer.
20
(ii) Nothing in this Section 6(f) shall prohibit any
Covenantor from engaging in any business that is not in competition with
Purchasers or their respective affiliates or investing in the securities of any
corporation having securities listed on a national securities exchange, provided
that such investment does not exceed 2% of any class of securities of such
corporation, and provided that such investment represents a passive investment
and that neither such Covenantor nor any group of persons including him, in any
way, either directly or indirectly, manages or exercises control of any such
corporation, guarantees any of its financial obligations or otherwise takes any
part in its business, other than exercising his or her rights as a shareholder,
or seeks to do any of the foregoing.
(g) No Development Covenant. From the date hereof until the
commercial release of Xxx Xxxxx 2, Remedy shall not, and no principal
stockholders and partners of Remedy identified on the signature page to this
Agreement shall, knowingly permit any of their respective Affiliates, officers,
directors, employees, agents or representatives, directly or indirectly, (x) to
commence discussions with respect to, or develop, produce, build, design, or
otherwise create in any manner, any other software similar in design or function
to the Licensed Software (as defined in the License Agreement) or (y) to license
any right therein.
(h) Transfer Restrictions.
(i) Legend on Stock Certificates.
(A) Each certificate representing Shares shall bear
the following legend until such time as the Shares represented thereby are no
longer subject to the restrictions of the Lock-Up Agreement:
THE SALE, TRANSFER OR ENCUMBRANCE OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF A LOCK-UP
AGREEMENT, EFFECTIVE AS OF MAY 20, 2002 AMONG APOGEE SOFTWARE LTD.,
REMEDY ENTERTAINMENT, LTD. AND TAKE-TWO INTERACTIVE SOFTWARE, INC., AS
SUCH AGREEMENT MAY BE AMENDED.
(B) Each certificate representing Shares shall bear
the following legend until such time as the Shares represented thereby are no
longer subject to the restrictions of the federal or state securities laws:
THE SECURITIES EVIDENCE BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE
SECURITIES LAWS AND MAY BE OFFERED, SOLD OR TRANSFERRED ONLY IF
REGISTERED PURSUANT TO THE PROVISIONS OF SUCH LAWS, OR IF IN THE
OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION, AN EXEMPTION FROM
SUCH REGISTRATION IS AVAILABLE."
(ii) Any voluntary or involuntary sale, assignment,
mortgage, grant, pledge, hypothecation, exchange, transfer, conveyance or other
disposition of all or any portion of the Shares and any agreement, contract or
commitment to do any of the foregoing ("Disposition") during the Lock-Up Period
(as such term is defined in the Lock-Up Agreement) shall be null and void ab
initio, and Take-Two shall not, and shall instruct its transfer agent not to,
recognize any such Disposition to any purported transferee unless, such
transferee shall be subject to the restrictions in the Lock-Up Agreement and
Take-Two shall receive written instruments that are in a form satisfactory to
it, in its sole and absolute discretion, including, without limitation, copies
of any instruments of transfer and such transferee's consent to be bound by this
Agreement and the Lock-Up Agreement.
21
7. [Intentionally Omitted].
8. Indemnification.
(a) Indemnification by the Sellers. Each Seller, jointly and
severally shall indemnify and hold harmless Purchasers from and against, without
duplication, all costs, fees, liabilities, losses, Taxes, charges, claims,
expenses and damages, including, without limitation, reasonable legal fees and
expenses (both those incurred in connection with the defense or prosecution of
the indemnifiable claim and those incurred in connection with the enforcement of
this provision) and costs of investigation, imposed on or incurred by the
Purchasers or their agents or Affiliates, or any of their respective
subsidiaries or Affiliates, or any of their respective officers, directors or
employees, (collectively "Purchaser Losses") as a result of:
(i) any breach of any representation or warranty of the
Sellers contained in this Agreement or in any agreement, document, instrument,
certification, Schedule, Exhibit or writing delivered pursuant hereto or in
connection herewith;
(ii) any breach of any covenant or agreement of the
Sellers contained in this Agreement (including, but not limited to, the covenant
of the Sellers pursuant to Section 2(i)(ii) (Agreement Termination Covenant)) or
in any agreement, document, instrument, certification, Schedule, Exhibit or
writing delivered hereto or in connection herewith;
(iii) any Retained Liabilities;
(iv) the commencement or threatened commencement of any
proceeding, suit or action against the Sellers or Purchasers or any Affiliate
thereof, or any director, officer or employee of any of them, arising out of
actions taken, or omitted to be taken, or state of facts existing, prior to the
Closing, which, if determined adversely thereto (regardless of the actual
determination thereof) would result in a Purchaser Loss which is indemnifiable
under the provisions of this Section 8(a) (any such pending or threatened suit
or action being a "Purchaser Covered Action"); and/or
(v) any and all actions, suits, proceedings, claims or
demands incident to any of the foregoing or such indemnifications.
(b) Indemnification by Purchasers. Purchasers, jointly and
severally, shall indemnify and hold harmless the Sellers from and against,
without duplication, all costs, losses, fees, liabilities, Taxes, charges,
claims, expenses and damages, including reasonable legal fees and expenses (both
those incurred in connection with the defense or prosecution of the
indemnifiable claim and those incurred in connection with the enforcement of
this provision) and costs of investigation, imposed on or incurred by the
Sellers, their respective agents or Affiliates, or any of their respective
subsidiaries or Affiliates, or any of their respective officers, directors or
employees (collectively "Seller Losses") as a result of:
(i) any breach of any representation or warranty of
Purchasers contained in this Agreement or in any agreement, document,
instrument, certification, Schedule, Exhibit or writing delivered pursuant
hereto or in connection herewith;
22
(ii) any breach of any covenant or agreement of Purchasers
contained in this Agreement or in any agreement, document, instrument,
certification, Schedule, Exhibit or writing delivered hereto or in connection
herewith;
(iii) the commencement or threatened commencement of any
proceeding, suit or action against either one or both of the Sellers provided
that it (x) is not one indemnifiable by the Sellers pursuant to Section 8(a)(iv)
above; (y) occurs or arises after the Closing Date; and (z) is based upon
Section 8(b)(i) or 8(b)(ii), which, if determined adversely to them would result
in a Seller Loss (any such pending or threatened suit or action being a "Seller
Covered Action" and together with a Purchaser Covered Action, a "Covered
Action"); and/or
(iv) any and all actions, suits, proceedings, claims or
demands incident to any of the foregoing or such indemnifications.
(c) Loss Indemnity Procedure.
(i) Upon learning of the commencement of a Covered Action
or the actual receipt by the party claiming a right of indemnification of
information relating to the purported existence of facts or circumstances which
could result in the commencement of a Covered Action or other incurrence of a
Purchaser Loss or Seller Loss, the party claiming the right of indemnification
(the "Indemnified Party") shall promptly, but no later than fifteen (15) days
after learning of such commencement or receipt, give notice thereof, with
reasonable specificity of the facts as then known, to the party having the
indemnification obligation (the "Indemnifying Party"); provided, however,
failure to give timely notice shall not release the Indemnifying Party of its
obligations hereunder except and only to the extent the Indemnifying Party
suffers actual prejudice as a proximate result of such failure.
(ii) The Indemnifying Party shall have the right to assume
the defense of any such Covered Action only by giving written notice (the
"Assumption Notice") to the Indemnified Party within 20 days after notice given
pursuant to Section 8(c)(i) above, which Assumption Notice shall state that (A)
it agrees that the claimant is entitled to indemnification hereunder; and (B) it
agrees to assume the defense thereof in the name and on behalf of the
Indemnified Party with counsel reasonably satisfactory to the Indemnified Party,
in either event at the sole cost and expense of the Indemnifying Party;
provided, however,
(x) all such costs and expenses of the foregoing counsel,
if not paid by the Indemnifying Party and instead paid by the
Indemnified Party shall be Losses indemnifiable by the
Indemnifying Party under Section 8(a) or (b), as the case may
be,
(y) the Indemnified Party, notwithstanding the timely
delivery of an Assumption Notice, may participate in such
Covered Action through counsel separately selected and paid
for by the Indemnified Party, and
(z) if no Assumption Notice complying with subclauses (A)
and (B) above is timely given, or despite the giving of the
Assumption Notice the defendants in any Purchaser Covered
Action or Seller Covered Action, as the case may be include
both the Indemnified Party and the Indemnifying Party, and the
Indemnified Party shall have reasonably concluded that there
may be legal defenses available to it which are different from
or additional to those available to the Indemnifying Party, or
if there is a conflict of interest which would prevent counsel
for the Indemnifying Party from also representing the
Indemnified Party, or if the amount claimed in the Purchaser
Covered Action or Seller Covered Action, as the case may be,
is subject to the Indemnification Cap and, together with all
other claims previously made for indemnification hereunder to
which the Indemnification Cap may apply, such claims, in the
aggregate, exceed the Indemnification Cap, or if the amount
claimed in the Covered Action is subject to the Basket, and
together with all other claims for indemnification previously
made hereunder to which the Basket may apply, such claims in
the aggregate are less than the Basket,
23
the Indemnified Party in each of the foregoing cases shall have the right to
select one separate counsel to conduct the defense of such action on its behalf,
and all such costs and expenses shall be paid by the Indemnifying Party and, if
paid by the Indemnified Party, shall be Purchaser Losses or Seller Losses
indemnifiable by the Indemnifying Party under Subsection 8(a) or (b), as the
case may be. The Indemnified Party may take such action with respect to a
Purchasers or Seller Covered Action as it may deem appropriate to protect
against further damage or default, including obtaining an extension of time to
answer the complaint or other pleading or filing an answer thereto.
(iii) Where the Sellers are the Indemnifying Party, the
Sellers shall not consent to the entry of any judgment or enter into any
settlement without the written consent of Purchasers, which shall not be
unreasonably withheld or delayed.
(d) Payment by Indemnified Party. The Indemnifying Party shall
be entitled to receive payment from the Indemnified Party of an amount equal to
the Tax reduction or refund actually realized, or insurance proceeds actually
paid to the Indemnified Party, solely as a result of the Indemnified Party
having incurred Seller Loss or Purchaser Loss, provided that the Indemnifying
Party shall have paid to the Indemnified Party the full amount of such Purchaser
Loss or Seller Loss. Nothing herein shall obligate the Indemnified Party, in the
exercise of his/its good faith reasonable business judgment, or that of its
direct or indirect parent, to make any claim for a Tax reduction or refund or
insurance recovery.
(e) Duration of Indemnification. Liability for indemnification
hereunder shall expire as provided in Section 8(i) below unless the Purchasers
give written notice prior to such date of expiration to the Sellers of a
Purchaser Loss or a Purchaser Covered Action (setting forth in reasonable detail
the specific facts and circumstances then known and pertaining thereto), or
unless a Seller gives written notice prior to such date of expiration to the
Purchasers of a Seller Loss or Seller Covered Action (setting forth in
reasonable detail the specific facts and circumstances then known and pertaining
thereto). In any of such events, such liability shall survive until such
Purchaser Loss or Purchaser Covered Action is finally determined and any
indemnification payment due with respect thereto or with respect to a Purchaser
Loss is made, with respect to Purchasers, and until such Seller Loss or Seller
Covered Action is finally determined and any indemnification payment due with
respect thereto or with respect to a Seller Loss is made, with respect to such
Seller.
(f) Limitations.
(i) Notwithstanding anything to the contrary contained in
this Section 8, no Seller and no Purchaser shall be obligated to pay any amounts
in respect of Purchaser Losses or Seller Losses, as the case may be, in excess
of $45,000,000, in the aggregate (the "Indemnification Cap"). Notwithstanding
the foregoing and Section 8(f)(ii), the Indemnification Cap and the Basket shall
not apply to the Sellers' obligations to pay Purchaser Losses in respect of
Unlimited Obligations (as hereinafter defined). "Unlimited Obligations" shall
mean Purchaser Losses attributable to or resulting from (i) fraud of the
Sellers, (ii) failure by the Sellers to perform any of the covenants, agreements
or obligations of any of them under this Agreement, (iii) failure to satisfy any
Retained Liability, (iv) any intentional or knowing breach of a representation
or warranty contained in Section 4, or (v) any breach of any representation or
warranty in Section 4(b) (Enforceable Obligation; Due Authorization), Section
4(c) (Intellectual Property) and Section 4(e) (Title to Acquired Assets, Etc.).
24
(ii) The Sellers shall not be obligated to make any
payment in respect of a Purchaser Loss until the aggregate of all Purchaser
Losses exceeds $250,000 ("Basket"); after which the Purchasers shall be entitled
to recover all Purchaser Losses and not just the Purchaser Losses in excess of
the Basket.
(iii) Purchasers shall not be obligated to make any
payment in respect of a Seller Loss until the aggregate of Seller Losses exceeds
the Basket; after which Seller shall be entitled to recover all Seller Losses
and not just Seller Losses in excess of the Basket.
(g) Set Off of Purchaser Losses. Purchasers may set off
Purchaser Losses against the Incentive Payments. Purchasers shall give Sellers
thirty (30) days prior written notice of such set off; provided, that,
Purchasers' failure to give such notice shall not affect Purchasers' rights of
set off pursuant to this Section 8(g).
(h) Sole Remedy. The foregoing indemnification provisions
shall be the exclusive remedy for any breach of the representations and
warranties set forth in this Agreement; provided, however, that the provisions
of this Section 8(h) shall not prevent Seller, on the one hand, or Purchasers,
on the other hand, from seeking the remedies of specific performance or
injunctive relief in connection with a breach of a covenant of the other party
contained herein.
(i) Survival. All covenants shall survive the Closing
indefinitely. Except as otherwise specifically provided herein, all
representations and warranties shall survive the Closing, regardless of any
inspection or discovery, whether by reason of due diligence or otherwise, and
shall terminate at the close of business on the third anniversary of the Closing
Date, except that the representations and warranties in (i) Section 4(b)
(Enforceable Obligation; Due Authorization), Section 4(e) (Title to Acquired
Assets, Etc.), Section 5(b) (Authority), Section 5(c) (Non-Contravention;
Enforceability) and Section 5(e) (Common Stock) shall not expire and (ii)
Section 4(c)(Intellectual Property) shall not expire until the expiration of the
longest statute of limitations applicable with respect to such representation or
warranty.
9. [Intentionally Omitted]
10. Notices.
(a) All notices and other communications hereunder will be in
writing and will be given by delivery in person, facsimile or email (if a
duplicate copy is sent by mail), by overnight courier, or by registered or
certified mail, return receipt requested, to the parties at their respective
addresses set forth above, with copies as follows:
If to Purchaser:
Take-Two Interactive Software, Inc.
000 Xxxxxxxx, Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Telephone: (000) 000-0000
Email: XxxX@Xxxx0Xxxxx.xxx
Attn: Xxx Xxxxxxxxx, Esq.
25
With copy to:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
If to Apogee: Apogee Software, Ltd.
0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Fax: 000-000-0000
Tele.: 000-000-0000
Email: xxxxxx@0xxxxxxx.xxx
Attn: Xxxxx Xxxxxx
With copy to:
Jenkens & Xxxxxxxxx, a Professional Corporation
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax: 000-000-0000
Tele.: 000-000-0000
Email: xxxxxxxxx@xxxxxxx.xxx
Attn: Xxxxxxx Xxxxxxxx
If to Remedy:
Remedy Entertainment, Ltd.
Xxxxxxxxxx 0 00000
Xxxxx, Xxxxxxx
Fax: x000-0-000-00000
Tele.: x000-0-000-00000
Email: xxxxxx@xxxxxx.xx
Attn: Xxxxxx Xxxxxxxxxx
With copy to:
ACE LAW Oy
Xxxxxxxxxxxxx 0X, 0 xxx., 0xx Xxxxx
Xxxxxxxx 00000 Xxxxxxx
Fax:_x000-0-000-00000
Tele.: x000-0-000-00000
Email: xxxxx.xxxx@xxxxxx.xx
Attn: Xxxxx Xxxx
26
Notice given by mail shall be deemed given four business days after deposit with
the United States Postal Service; Notice given by overnight courier shall be
deemed given one business day after delivery into the custody and control of
such overnight courier service for next business day delivery and notice
delivered in person or by facsimile shall be deemed given one business day after
such delivery or receipt.
(b) Any party hereto may change the address to which any
notice or other communication shall be given by a notice to such effect
complying with this Section 10.
11. Miscellaneous.
(a) Simultaneous Transactions. All transactions to be effected
under this Agreement shall be deemed to occur in the order herein specified, if
any, but shall occur nearly simultaneously and no such transaction shall be
deemed to have occurred unless all such transactions have occurred.
(b) Rights Confined to Parties. Nothing expressed or implied
herein is intended or shall be construed to confer upon or give to any Person,
other than the parties hereto, and their respective heirs, executors,
administrators, successors and assigns as permitted hereunder, any right,
remedy, or claim under or by reason of this Agreement or of any term, covenant,
or condition hereto, and all the terms, covenants, conditions, promises, and
agreements contained herein shall be for the sole and exclusive benefit of the
parties hereto and their successors and assigns as permitted hereunder.
(c) Survival. All covenants contained in this Agreement and
the other Transaction Documents shall survive the consummation of the
transactions contemplated hereby and thereby until all obligations set forth
herein or therein shall have been performed and satisfied or until such
covenants shall have terminated in accordance with their terms.
(d) Entire Agreement. This Agreement, together with the
Exhibits and Schedules annexed hereto, and the agreements entered into in
accordance with the terms hereof, including the other Transaction Documents, and
contemplated hereby, constitute the entire understanding between the parties
hereto with respect to the subject matter hereof and thereof and supersede any
and all prior agreements between the parties hereto with respect to the subject
matter hereof and thereof. Any inconsistencies among the Transaction Documents
shall be determined by and in favor of this Agreement and the provisions
hereunder.
(e) Assignment. This Agreement is not assignable by any party
hereto without the prior written consent of the other parties, which consent
shall not be unreasonably withheld; provided, however, that any Purchaser may
assign its rights and/or obligations to a wholly owned subsidiary of Purchasers,
to any of Purchasers' Affiliates; provided, further, however that the foregoing
assignees shall continue to be bound by the obligations of the Purchasers' under
this Agreement. In addition, this agreement may be assigned without the prior
written consent of any parties hereto to secure indebtedness of any Purchaser
for borrowed money. Any purported assignment of this Agreement in violation of
the foregoing shall be null and void and of no effect. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns.
(f) Severability. Any provision of this Agreement, which is
prohibited or unenforceable in any jurisdiction, shall not affect the validity
or enforceability of any other provision in such jurisdiction or the validity or
enforceability of such provision in any other jurisdiction.
(g) Effect of Headings. The Section and subsection headings
contained herein are for convenience only and shall not affect the construction
hereof.
27
(h) Governing Law; Jurisdiction.
(i) The provisions of this Agreement, and all the rights
and obligations of the parties hereunder, shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed wholly within such State without regard to such the
principles of conflicts of law that would require the application of the laws of
a jurisdiction other than New York.
(ii) Purchasers and the Sellers hereby consent to the
jurisdiction of any state or federal court located within the County of New
York, State of New York and irrevocably agree that all actions or proceedings
arising out of or relating to this Agreement shall be litigated in such courts.
The Purchasers and the Sellers accepts for each of itself and in connection with
its properties, generally and unconditionally, the exclusive jurisdiction of the
aforesaid courts and waives any defense of forum non conveniens, and irrevocably
agrees to be bound by any judgment rendered thereby in connection with this
Agreement.
(i) Announcements. Purchasers and the Sellers shall consult
with each other prior to issuing any press release or otherwise making any
public statement with respect to the transactions described herein and no party
shall issue any such press release or make any such public statement prior to
such consultation, except as may be required by law or applicable stock exchange
or NASDAQ Stock Market regulation; provided, however, that Sellers shall not
issue any press release or announcement, or make any reference to the Closing or
to the transactions contemplated hereby to any third Person without the prior
written consent of the Purchasers.
(j) Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, and all such
counterparts shall constitute but one instrument. Facsimile signatures shall
have the same effect as an original.
(k) Amendments and Waivers. No amendment, modification, waiver
or course of conduct shall be effective unless the same is approved in writing
and duly executed by all of the parties hereto and then such amendment,
modification or waiver shall be effective only with respect to the specific
instance and for the specific purpose for which it was given.
(l) No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement and the
transaction documents. In the event an ambiguity or question of intent or
interpretation arises under any provision of this Agreement or any transaction
document, this Agreement and such other transaction Document shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Agreement or any other transaction document.
[Signature Page Follows]
28
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement or caused same to be executed by their respective officers or other
representatives thereunto duly authorized, as of the date first above written.
APOGEE SOFTWARE, LTD.,
By: Its General Partner,
Action Entertainment, Inc.
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: CEO
APOGEE LIMITED PARTNERS
Solely with respect to Section 6(f)
/s/ Xxxxxx Xxxxxxxxx
--------------------------------------------
Xxxxxx Xxxxxxxxx
/s/ Xxxxx Xxxxxx
--------------------------------------------
Xxxxx Xxxxxx
By: Its General Partner,
Action Entertainment, Inc.
/s/ Xxxxx Xxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxx
Title: CEO
[SIGNATURE PAGE 1 TO THE ASSET PURCHASE AGREEMENT]
29
REMEDY ENTERTAINMENT, LTD
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Business and Financial Director
REMEDY PRINCIPAL STOCKHOLDERS
Solely with respect to Section 6(f) and 6(g)
/s/ Xxxxxx Xxxx
--------------------------------------------
Xxxxxx Xxxx
/s/ Petri Jarvilehto
--------------------------------------------
Petri Jarvilehto
/s/ Xxxx Xxxxxxxxx
--------------------------------------------
Xxxx Xxxxxxxxx
/s/ Xxx Xxxx
--------------------------------------------
XXX XXXX
/s/ Xxxxxx Xxxxx
--------------------------------------------
XXXXXX XXXXX
[SIGNATURE PAGE 2 TO THE ASSET PURCHASE AGREEMENT]
30
TAKE-TWO INTERACTIVE SOFTWARE, INC.
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Executive Officer
MAXCORP, LTD.
By: /s/ Xxxx Xxxxx
--------------------------------------
Name: Xxxx Xxxxx
Title: Director
GATHERING OF DEVELOPERS I, LTD.
Solely with respect to Section 2(i)
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
TAKE-TWO INTERACTIVE SOFTWARE EUROPE, LTD.
Solely with respect to Section 2(i)
By: /s/ Xxxx Xxxxx
--------------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
[SIGNATURE PAGE 3 TO THE ASSET PURCHASE AGREEMENT]
31
