Distribution Agreement [Amendment No. 2] - BAM! Entertainment Ltd. and Ubi Soft Entertainment SA
AMENDMENT #2
TO THE DISTRIBUTION AGREEMENT
BETWEEN UBI SOFT ENTERTAINMENT S.A. & BAM ENTERTAINMENT LIMITED
This Amendment #2 (the "Amendment #2") to the Distribution Agreement dated July
31, 2001 as amended by the Amendment #1 dated August 5, 2002 (the "Agreement"),
entered into by and between Bam Entertainment Limited, whose principal place of
business is located at 17 Burlington Street, Bath, Avon & Somerset BA1 2SB
("BAM") and Ubi Soft Entertainment S.A., whose principal place of business is
located at 28, rue Armand Carrel, 93108 Montreuil sous Bois cedex and whose
registered office is located at 107, Avenue Henri Freville, BP 10704, Rennes
(35207) CEDEX ("UBI SOFT") is entered into effective as of September 6, 2002
(the "Effective Date").
(BAM and UBI SOFT being jointly referred to as the "Parties")
The Parties have signed the Agreement whereby BAM grants to UBI SOFT an
exclusive license to distribute, market and sell the Products and Promotional
Materials throughout any Distribution Channel, on the Territory during the Term,
and the Amendment #1 which provides for specific terms and conditions regarding
the firm sales contracted by BAM with Sub-Distributors in Germany and Italy.
BAM has informed UBI SOFT that it wishes also to contract firm sales with
Sub-Distributors in France.
Accordingly, the Parties wish to amend the Agreement to provide for specific
terms and conditions regarding these firm sales in France (the "France
Sub-Distribution Deal", alternatively hereinafter referred to as the "Purpose").
THEREFORE UBI SOFT and BAM agree as follows:
1. SCOPE OF THIS AMENDMENT #2: FRANCE SUB-DISTRIBUTION DEAL.
UBI SOFT grants BAM as of the Effective Date the right to contract firm sales
with the Sub-Distributors Sony France and the company Nobilis France in France
(the "French Sub-Distributors") regarding the Sub-Distribution Products listed
in Schedule A-1 attached hereto as follows:
<TABLE>
<CAPTION>
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FRENCH COUNTRIES OF THE
SUB-DISTRIBUTORS TERRITORY SUB-DISTRIBUTION PRODUCTS
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<S> <C> <C>
Sony France France Riding Spirits
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All Products, except Riding Spirits,
Nobilis France France referred to in Schedule A-1
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</TABLE>
The Sub-Distribution Products shall be purchased from BAM by French
Sub-Distributors at the purchase prices indicated in Schedule A-1 (the "Purchase
Prices") and be sub-distributed and sold by French Sub-Distributors until
expiration of the Term as set forth in Clause 7 of the Agreement in the
quantities detailed in Schedule A-1 (which may change upon mutual agreement
between BAM and the concerned French Sub-Distributor and subject to UBI SOFT's
prior written approval in each instance). Any subsequent orders of
Sub-Distribution Products by French Sub-Distributors shall be treated as per the
terms and conditions of this Amendment #2.
Accordingly, pursuant to Clause 2.3 of the Agreement, as of the Effective Date
UBI SOFT shall distribute exclusively through French Sub-Distributors only,
Sub-Distribution Products throughout France, and keep the direct distribution of
the Products under the Agreement as per the terms of the Agreement. In the event
any of the contracts entered by and between BAM and the French Sub-Distributors
with respect to the sub-distribution of the Sub-Distribution Products is
terminated before the Term for any reason, UBI SOFT shall automatically have the
right to distribute the Sub-Distribution Products direct to the distribution
channels in France from the date of such termination until expiration of the
Term pursuant to the terms and conditions of the Agreement.
<PAGE>
2. DELIVERY OF THE PRODUCTS BY BAM.
The Parties agree that with respect to the Purpose only:
- each French Sub-Distributor shall issue and sign purchase orders
(whether for initial or additional orders) which are tripartite between
BAM, UBI SOFT and the French Sub-Distributor.
- BAM shall be solely responsible for all logistics relating to the
shipping and delivery of the Sub-Distribution Products ordered by each
French Sub-Distributor and shall directly deliver to the concerned
French Sub-Distributor said Sub-Distribution Products. BAM shall inform
UBI SOFT of any delivery of Sub-Distribution Products to French
Sub-Distributor.
- the Sub-Distribution Products shall be delivered by BAM to the
corresponding French Sub-Distributor warehouses and shall be paid as
follows:
- with respect to Nobilis : (1) 50% shall be paid at the time of
shipment, (2) 50% shall be paid 30 days from date of invoice.
- With respect to Sony France : 100% shall be paid 60 days after
the first order. For subsequent reorders, payment shall be
made 30 days after shipment.
The French Sub-Distributor's warehouses specific address shall be
notified in writing directly by French Sub-Distributor to BAM
with adequate prior notice.
- UBI SOFT shall bear no responsibility nor liability as of the
Effective Date with respect to delivery and returns, if any.
3. REMUNERATION TO BAM, UBI SOFT FEES, AND NO RESPONSIBILITY AND LIABILITY FOR
UNPAID AMOUNTS INVOICED TO FRENCH SUB-DISTRIBUTORS.
The Parties agree that with respect to the Purpose only:
a) UBI SOFT shall invoice and collect on behalf of BAM the remuneration
payable by each French Sub-Distributor to BAM, and then transfer to BAM
within 7 (seven) business days after receipt of such remuneration on UBI
SOFT's bank account, being understood that UBI SOFT shall deduct before
such transfer from the remuneration payable by French Sub-Distributor an
"Amendment Distribution Services Fee" (as defined in clause 3.d. of this
Section) equal to UBI SOFT's fee for its services under this Amendment
#2.
b) The remuneration paid to BAM by each French Sub-Distributor shall be
directly negotiated between BAM and the French Sub-Distributor, on a
firm sale basis, at the Purchase Prices indicated in Schedule A-1,
without the intermediate of UBI SOFT.
c) UBI SOFT shall bear no responsibility nor liability as of the
Effective Date with respect to any bad debts and amount invoiced by BAM
to any French Sub-Distributor which remains unpaid by French
Sub-Distributor.
d) In consideration of the services provided by UBI SOFT to BAM as
intermediate, UBI SOFT shall be entitled to a specific distribution
services fee of [*] of French Sub-Distributor's Net Revenues. For the
purpose of this Amendment #1, French Sub-Distributor's Net Revenues
shall be defined as (Quantities of Sub-Distribution Products purchased
by French Sub-Distributor) x (Corresponding Purchase Price).
4. MARKETING AND CUSTOMER SERVICE.
The Parties agree that with respect to the Purpose:
- UBI SOFT shall not be responsible nor liable for, as of the Effective
Date, the marketing and customer service. All marketing expenses
incurred by UBI SOFT on the Sub-Distribution Products prior to the
Effective Date shall be reimbursed by BAM pursuant to the terms of
Clause 10 of the Agreement.
5. UBI SOFT'S RELEASE OF ANY OTHER OBLIGATIONS, WARRANTIES AND INDEMNITY.
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* Confidential portion omitted and filed separately with the Commission.
<PAGE>
For the Purpose, Clauses 3 to 6, Clauses 7.1, 8, 9.1 to 9.4 and 10 of the
Agreement shall not be applicable to UBI SOFT with respect to or in relation
with the Purpose. UBI SOFT shall be released from any and all obligations,
warranties and indemnity contained in said Clauses, and accordingly BAM shall
not be entitled to sue UBI SOFT, nor claim any damages, indemnification, costs,
expenses, or liabilities against UBI SOFT with respect to the fulfillment of any
of such obligations, warranties and indemnity.
6. EFFECTS
With respect to the Purpose, in case of discrepancy between the terms of this
Amendment #2 and those of the Agreement, the terms of this Amendment #2 shall
prevail.
Unless otherwise provided in this Amendment #2, the terms, provisions and
conditions of the Agreement shall remain in full force and effect and in all
respects are hereby ratified and confirmed in all aspects.
Notwithstanding anything to the contrary herein, Clause 10.8 of the Agreement
shall be amended to specify that (i) UBI SOFT shall have no obligation to
appoint a Brand manager dedicated to the Products in its central marketing team
and (ii) all information relative to the Products shall be delivered by Annie
Sullivan, or any other person designated by BAM, directly to UBI SOFT's
dedicated product managers in each major subsidiary.
7. MISCELLANEOUS
7.1 Reference to the Agreement as of and after the date hereof, each
reference in this Amendment #2 to "the Agreement", hereunder", "hereof',
"herein' or words of like import referring to the Agreement shall mean
and be a reference to the Agreement as amended by this Amendment #2.
7.2 Capitalized terms used in this Amendment #2 without definition shall
have the respective meanings specified in the Agreement.
7.3 Counterparts. This Amendment #2 may be executed by manual signatures
and in counterparts, each of which shall be deemed an original and all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the duly authorized representatives of each of the
parties hereto have executed this Amendment #2 as of the day and year
first written above.
For: Ubi Soft Entertainment S.A. For: BAM Entertainment Limited
/s/ Alain Corre /s/ Anthony R. Williams
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Alain Corre A R Williams
Managing Director Managing Director
<PAGE>
SCHEDULE A-1
1. QUANTITIES
<TABLE>
<CAPTION>
Title Format France
----- ------ ------
<S> <C> <C>
PPG PC CD ROM [*]
DEXTER'S LABORATORY CHESS CHAL GBA [*]
ECKS VS SEVER 2 GBA [*]
PPG GBA [*]
REIGN OF FIRE GBA [*]
PPG PS2 [*]
REIGN OF FIRE PS2 [*]
RIDING SPIRITS PS2 [*]
CHASE Xbox [*]
REIGN OF FIRE Xbox [*]
REIGN OF FIRE GC [*]
[*]
</TABLE>
2. PURCHASE PRICES BY SUB-DISTRIBUTORS - except Riding Spirits which is 25.00
Euros via Sony France
<TABLE>
<S> <C> <C>
- PS2 [*] Euros France
- AGB [*] Euros France
- Xbox products [*] Euros France
- GC products [*] Euros France
- PC products [*] Euros France
</TABLE>
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* Confidential portion omitted and filed separately with the Commission.