Investment Agreement - GRAVITY Co. Ltd. and Sunny YNK Inc.
INVESTMENT AGREEMENT
GRAVITY Co., Ltd. (hereinafter referred to as "GRAVITY") and Sunny YNK Inc.
(hereinafter referred to as "Sunny") hereby enter into this Investment Agreement
(hereinafter referred to as this "Agreement") in connection with the Ragnarok
online game (hereinafter referred to as the "Game") currently being serviced by
GRAVITY as of the date of this Agreement.
ARTICLE 1. PURPOSE
The purpose of this Agreement is to stipulate the rights and obligations of the
parties hereto with respect to the investment by Sunny of a sum certain in the
Game developed by GRAVITY and payment by GRAVITY of profits therefrom allocable
to Sunny to the extent there is any profit from the commercialization of the
Game.
ARTICLE 2. DEFINITIONS
Terms herein are defined as follows:
1. "Investment Amount" means the amount Sunny must pay to GRAVITY in order to
acquire the right to claim the right to allocate profit from GRAVITY under
this Agreement.
2. "Game" means "Ragnarok Online Game," a massively multiplayer online
role-playing game (MMORPG), and "Ragnarok Package Game", which were
developed by, and all of whose intellectual properties are owned by,
GRAVITY.
3. "Commercialization" means the point at which the users of the Game are
charged a fee for the use of the Game.
4. "Profit Allocation" means the division between GRAVITY and Sunny of the Net
Sales arising from the Commercialization of the Game based on a fixed
percentage.
5. "Gross Sales" means the total amount of sales and usage fees that have been
collected from the charges made to online users of the Game on a
pay-per-use basis or the sale of the CDs of the Game.
6. "Net Sales" means the amount remaining after deducting the Total Cost
described in clause 7 below from the Gross Sales described in clause 5
above, provided that the Net
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Sales shall be deemed to exist only if there is any amount remaining after
deducting the Total Cost from the Gross Sales.
7. "Total Cost" means the sum of the following costs incurred in
connection with providing the Game to online users:
a. Value-added tax (VAT);
b. Costs payable to third parties related to the imposition and
collection of usage fees;
c. Costs payable to online and offline agents, subscription promoters and
other individuals and corporations) that solicit or represent the
paying users (hereinafter referred to as "Agents";
d. Costs incurred in paying for claims by users or Agents of indemnity,
compensation, and/or refund, and related expenses, pursuant to
relevant law or regulations;
e. Costs incurred in exchanging foreign currencies, to the extent
necessary;
f. Production costs for the production of CDs, instruction manuals and
promotional materials following the Commercialization of the Game, to
the extent that such materials are sold for a price.
g. Costs related to the deposit or payment of money, to the extent
required by law;
h. Premiums payable under insurance policies, to the extent required by
law;
i. Costs payable to third parties in connection with overseas exports
(excluding costs related to overseas publicity, exhibition,
advertising, etc.); and
j. Costs agreed upon in writing by the parties.
8. "Affiliates" means entities in which GRAVITY holds 20% or more in equity
interest or entities the largest shareholder of Gravity holds 10% or more
in equity interest.
9. "Marketing" means advertising, promotions and other events conducted
locally and abroad in connection with the sale and servicing of the Game,
promotion of its brand recognition and the increase of its users.
ARTICLE 3. TERM OF AGREEMENT
This Agreement shall be effective as of the date of this Agreement for a term of
36 months following the Commercialization, provided that this Agreement shall
automatically terminate if there parties do not have a written agreement to
extend its term at least one month prior to the expiration of its term.
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ARTICLE 4. RIGHTS TO THE GAME
1. GRAVITY shall exclusively hold all intellectual property rights to the
Game, including the rights to develop programs, sell and use.
2. GRAVITY shall hold the rights to operate and manage the exclusive rights
related to the Game, including the selling and marketing rights, and shall
grant to Sunny to the exclusive domestic selling rights for the term of
this Agreement.
3. GRAVITY is duly authorized to distribute freely to an unspecified number of
users products that use GRAVITY's intellectual property rights, including
trademarks.
ARTICLE 5. TRANSFER OF RIGHTS, ETC.
1. GRAVITY may transfer to its Affiliates the whole or part of its
Game-related domestic and overseas selling rights.
2. Each party hereto may transfer to third parties the whole or part of its
respective rights and obligations hereunder and, to the extent not in
conflict with the rights of the other party specified herein, enter into
similar agreements with third parties, provided that such party shall give
written notice to the other party and such other party shall affirmatively
cooperate with any such transfer of rights of obligations.
3. In the case of a transfer of rights as specified in paragraph 2 above, the
third party shall be deemed as substituting the transferring party with
respect to all related rights and obligations.
ARTICLE 6. INVESTMENT AMOUNT
The Investment Amount payable hereunder by Sunny to GRAVITY shall consist of KRW
6,550,000,000 in cash and 150,000 shares of Sunny (calculated to be KRW 450
million in value based on a per share value of KRW3,000), for a total amount of
KRW 7 billion won. The Investment Amount shall be paid to GRAVITY as follows:
a. KRW 1,750,000,000, which has been paid pursuant to the Marketing Service
Agreement (hereinafter referred to as "Old Agreement") dated December 19,
2001 by and between GRAVITY and Sunny;
b. KRW 1,750,000,000, payable within seven (7) days from the date of this
Agreement;
c. The Sunny shares to be delivered by March 15, 2002;
d. KRW 2,050,000,000, payable by March 31, 2002; and
e. KRW 1,000,000,000, payable by April 30, 2002.
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ARTICLE 7. OPENING AND MANAGEMENT OF THE DOMESTIC RECEIVING ACCOUNT AND PROFIT
ALLOCATION
1. The parties shall open a bank account (hereinafter referred to as the
"Receiving Account") in Sunny's name, for the purpose of collecting online
usage fee from customers and managing revenues generated from the sale of
CDs of the Game.
2. The parties shall jointly hold all rights to the Receiving Account,
including the right to draw money therefrom.
3. After the Commercialization of the Game, Sunny shall pay GRAVITY 50% of the
monthly Net Sales out of the cash and cash equivalents actually deposited
into the Receiving Account until the total amount of such payments becomes
equal to the Investment Amount described in Article 6.
4. From the day following the full repayment of the Investment Amount
described in Article 6 as a result of the Profit Allocation and until the
termination of this Agreement, Sunny shall pay Gravity an amount equal to
80% of all domestic Net Sales based on the domestic Commercialization of
the Game.
5. Sunny shall settle its account at the end of each month and pay GRAVITY by
tenth day of the following month the amount of Profit Allocation, provided
that the cumulative settlement shall be made at the end of each fiscal year
(December 31).
ARTICLE 8. OPENING AND MANAGEMENT OF THE OVERSEAS RECEIVING ACCOUNT AND EARNINGS
SHARING
1. GRAVITY shall open a bank account (hereinafter referred to as the "Overseas
Receiving Account") to collect and manage the revenues collected from
overseas customers.
2. GRAVITY shall pay Sunny 50% of the overseas monthly Net Sales out of the
cash and cash equivalents actually deposited into the Overseas Receiving
Account until the total amount of such payment becomes equal to the
Investment Amount described in Article 6.
3. From the day following the full repayment of the Investment Amount
described in Article 6 as a result of the Profit Allocation and until the
termination of this Agreement, GRAVITY shall pay Sunny an amount equal to
10% of all overseas Net Sales based on the overseas Commercialization of
the Game.
4. GRAVITY shall settle its account at the end of each month and pay Sunny by
the tenth day of the following month the amount of Profit Allocation,
provided that the cumulative settlement shall be made at the end of each
fiscal year (December 31).
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ARTICLE 9. EXPENDITURE FOR MARKETING COSTS
From the first day of the month following the month in which Sunny fully repays
the Investment Amount described in Article 6 as a result of the Profit
Allocation and until the termination of this Agreement, Sunny shall use at least
15% of the monthly domestic and overseas Profit Allocation as marketing costs.
ARTICLE 10. OBLIGATIONS OF GRAVITY
GRAVITY undertakes to cooperate in good faith upon the receipt of the following
requests from Sunny:
a. Prior notice as to the status of marketing;
b. Provision of information relating to the details of the market costs used
out of the Investment Amount;
c. Access to the information relating to the Gross Sales, Total Cost, and Net
Sales.
ARTICLE 11. OBLIGATIONS OF SUNNY
1. In the event that Sunny conducts marketing of the Game using the marketing
cost described in Article 9, Sunny shall do so based on prior consultation
with GRAVITY on all matters, including the scope and target, and, if
GRAVITY requests information relating to the marketing activities and costs
related thereto, shall provide such information to GRAVITY.
2. In the event that Sunny undertakes publicity campaigns (in the form of
newspaper and broadcasting advertisements, etc.) as part of marketing for
the Game, Sunny shall do so after receiving prior written consent from
GRAVITY and disclose to the customers that GRAVITY is the provider of the
Game.
ARTICLE 12. RESOLUTION OF DISPUTES WITH THIRD PARTIES
1. If legal disputes arise from this Agreement due to reasons attributable to
either party hereto, such party shall resolve such disputes at its own
costs and liability.
2. If a third party makes provisional attachment or attachment to any
Receiving Account, each party shall immediately notify the other party of
such fact and take all steps necessary to protect the rights of such other
party, including with respect to the dismissal of such provisional
attachment or attachment.
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ARTICLE 13. LIMITATION ON THE USE OF INVESTMENT AMOUNT
GRAVITY shall use the Investment Amount paid by Sunny for general working
capital and may not, without prior written approval from Sunny, provide such
Investment Amount as security to third parties.
ARTICLE 14. REQUEST FOR CURE OF CONTRACTUAL BREACH
If either party breaches this Agreement, the non-defaulting party may request a
cure of such breach within seven business days and the defaulting party shall
immediately so cure.
ARTICLE 15. TERMINATION OF AGREEMENT
1. Either party may terminate this Agreement without further notice, in the
event of the following:
a. If such party fulfills its obligations but the other party breaches
its obligations hereunder due to its own fault and fails to cure such
breach within seven business days as described in Article 14;
b. If such party becomes subject to payment suspension, liquidation,
composition, corporate reorganization and bankruptcy proceedings or
similar events;
c. If the performance of this Agreement becomes impossible because the
material assets of such party necessary for the performance of this
Agreement becomes subject to orders such as provisional attachment,
injunction, attachment, repossession, public sale or the commencement
of auction; or
d. If the performance of this Agreement becomes impossible because such
party becomes subject to regulatory action related to this Agreement
such as business suspension, cancellation of business license and
criminal sanction.
2. The termination of this Agreement shall take effect on the date of
transmittal in writing of the intent to terminate.
ARTICLE 16. COMPENSATION OF DAMAGES
1. If this Agreement is terminated due to reasons attributable to GRAVITY,
GRAVITY shall compensate Sunny as follows:
a. If this Agreement is terminated before the Commercialization, GRAVITY
shall return to Sunny, within seven business days from the effective
date of termination, the
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Investment Amount described in Article 6, plus an amount equal to 30%
of the Investment Amount.
b. If this Agreement is terminated after the Commercialization, GRAVITY
shall pay to Sunny, within seven business days from the effective date
of termination, the Investment Amount described in Article 6 net of
the Profit Allocation already paid to Sunny pursuant to Articles 7-3,
7-4, 8-2 and 8-3, plus an amount equal to 30% of the Investment Amount
described in Article 6.
2. If this Agreement is terminated due to reasons attributable to Sunny, Sunny
shall compensate GRAVITY, as follows:
a. If this Agreement is terminated before the Commercialization, Sunny
shall acknowledge an amount equal to 30% of the Investment Amount
described in Article 6, which is already paid to GRAVITY, as damages
to GRAVITY and shall not make claim for its return.
b. If this Agreement is terminated after the Commercialization, Sunny
shall acknowledge an amount equal to 30% of the Investment Amount
described in Article 6, which is already paid to GRAVITY, as damages
to GRAVITY and return to GRAVITY the Profit Allocations already paid
by GRAVITY within seven business days from the effective date of
termination.
3. Notwithstanding clauses 1 and 2 above, if the amount of actual damages
exceeds the amounts described in such clauses, the party at fault shall
compensate the other party for the amount of actual damages.
ARTICLE 17. FORCE MAJEURE
Neither party shall be held liable to the other party for the non-performance or
delayed performance of this Agreement due to force majeure events such as war,
riots, flood, earthquakes or government actions.
ARTICLE 18. CONFIDENTIALITY
1. The parties shall keep confidential the other party's technological and
business secrets provided or acquired from the other party in connection
with this Agreement, and shall not divulge to third parties without such
other party's written consent.
2. This provision shall remain in effect for three years following the
expiration or termination of this Agreement.
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ARTICLE 19. INTERPRETATION OF AGREEMENT
Matters not stipulated herein or disagreements over the interpretation of this
Agreement shall be resolved through mutual agreement of the parties.
ARTICLE 20. AGREED JURISDICTION
The parties shall endeavor to amicably resolve disagreements or disputes arising
in connection with this Agreement or the performance hereof by, provided that
where such disagreements or disputes cannot be amicably resolved, they will be
adjudicated at the local court having jurisdiction over GRAVITY.
ARTICLE 21. EFFECTIVENESS OF AGREEMENT
This Agreement shall be effective as of the date of signing or sealing hereof by
both parties.
ARTICLE 22. AMENDMENT OF AGREEMENT
This Agreement may be modified or amended by written mutual agreement of the
parties.
ARTICLE 23. DUTY TO EXERCISE GOOD FAITH AND COOPERATE
The parties undertake to carry out the terms and conditions herein in good faith
and shall fully cooperate to ensure smooth operation of the business for the
term of this Agreement.
ARTICLE 24. EFFECTIVENESS OF THE OLD AGREEMENT
This Agreement shall take precedence over the Old Agreement dated December 19,
2001. Any provision of the Old Agreement that conflicts with the provisions
hereof shall cease to be effective upon the execution of this Agreement.
ARTICLE 25. MISCELLANEOUS
1. Matters not specified herein shall follow general business customs.
2. All notices, claims or requests for payment in connection with this
Agreement shall be in writing.
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As evidence of voluntary entry into this Agreement, the parties shall prepare
and execute two copies of this Agreement, and each party shall keep one executed
copy hereof.
February 19, 2002
"GRAVITY"
Corporate Name: GRAVITY Co., Ltd.
Address: 620-2, Shinsa-dong, Gangnam-gu, Seoul
Representative Director: Kim Hak-gyu /seal/
"Sunny"
Corporate Name: Sunny YNK Inc.
Address: 48-7, Munpyeong-dong, Daedeok-gu, Daejeon
Representative Director: Yoon Yeong-seok /seal/