A. Bethesda acquired all right, title and interest in the FALLOUT
trademarks specified in Schedule l hereto (collectively the "LICENSED MARKS")
from Interplay under an Asset Purchase Agreement between Bethesda and Interplay,
dated as of April 4, 2007 ("APA").
B. Interplay wishes to use the Licensed Marks solely in connection with
the development and implementation of a Massively Multiplayer Online Game (as
C. Bethesda, as the owner of the Licensed Marks, is willing to grant
Interplay a license strictly limited in duration and scope to use the Licensed
Marks in compliance with the terms and conditions of this Agreement.
2.3 MMOG DEVELOPMENT. To retain its license rights under this
Agreement, Interplay agrees that (i) full-scale development of its FALLOUT MMOG
will commence within twenty-four (24) months of the Effective Date of this
Agreement (such commencement date defined herein as the "MMOG DEVELOPMENT
COMMENCEMENT DATE") and (ii) by the MMOG Development Commencement Date,
Interplay will have secured financing for the FALLOUT MMOG in an amount no less
than US$30,000,000.00 ("MINIMUM Financing"). In the event that within this
24-month period Interplay has failed to commence full-scale development of its
FALLOUT MMOG or has failed to secure the Minimum Financing, Interplay will
immediately lose and permanently forfeit its license rights under this Agreement
and the license rights automatically shall end, be void and otherwise terminate
on the anniversary date of the second year after the Effective Date and this
Agreement shall no longer remain in effect.
3.1 SOLE OWNER. Interplay acknowledges and agrees that, as
between the parties, Bethesda is the sole and exclusive owner of the Licensed
Marks. Bethesda may, in its sole discretion, maintain or discontinue the
maintenance of any applications and registrations for the Marks or seek
registration for any Licensed Mark at any time.
3.2 NO ASSIGNMENT. Nothing contained in this Agreement shall
be construed as an assignment to Interplay of any right, title, or interest in
or to the Licensed Marks. Interplay recognizes and acknowledges that the
Licensed Marks and all rights therein and goodwill pertaining thereto solely and
exclusively belong to Bethesda and that all uses of the Licensed Marks by
Interplay shall inure to the benefit of Bethesda. Interplay shall not directly
or indirectly attack or impair the title of Bethesda to the Licensed Marks, the
validity of this Agreement, or any of Bethesda's registrations or applications
relating to any Licensed Mark in any jurisdiction. Interplay agrees it shall not
file any state, federal, or foreign applications to register any of the Licensed
Marks, in whole or in part, or any name or mark confusingly similar thereto in
9.1 Bethesda shall have the right to terminate this Agreement
at any time, upon written notice to Interplay, if Interplay fails to make any
payment due hereunder, maintain the quality of the Licensed Product in
accordance with the provisions hereof, follow Bethesda's instructions regarding
the appropriate display and use of the Licensed Marks, or perform or comply with
any term, condition, or standard set forth in this Agreement, and if such
failure is not cured within thirty (30) days after Bethesda provides written
notice of such failure to Interplay.
9.2 Bethesda may terminate this Agreement at its option,
effective immediately upon written notice to Interplay, in the event (x) of the
reorganization, consolidation or merger of Interplay or of another entity into
Interplay, (y) of the transfer of all or substantially all of the assets of
Interplay to another entity, or (z) Interplay becomes subject to any proceedings
under any bankruptcy or insolvency law, whether domestic or foreign.
9.3 EFFECT OF TERMINATION.
9.3.1 Upon the expiration or termination of this
Agreement, except as otherwise provided herein, any monies, including royalty
payments, due and payable hereunder to Bethesda as of the date of expiration or
termination shall be paid in full.
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9.3.2 Within thirty (30) days after termination of
this Agreement, Interplay shall provide Bethesda with a complete schedule of all
materials bearing the Licensed Marks then on hand or in inventory (including
inventory of its subcontractors or agents) including, but not limited to, the
Licensed Product, packaging, and advertising and promotional materials. Upon
request and at Bethesda's sole discretion, Interplay promptly shall deliver to
Bethesda or dispose of at the direction of Bethesda, without charge, all
existing inventory of Licensed Product bearing the Licensed Marks within its
possession or control, all related materials bearing the Licensed Marks, and
instruments used for the purposes of affixing or displaying the Licensed Marks,
including, but not limited to, artwork, transparencies, negatives, dies, molds
and screens, for disposition by Bethesda, along with copies of all inventory
records relating thereto.