EXHIBIT 10.46
AMENDMENT NUMBER 4 OF INTERNATIONAL DISTRIBUTION AGREEMENT
This Amendment Number
4 of the International
Distribution
Agreement
dated February 10, 1999 (this "Amendment") is entered into as of
August 6, 2003
but is retroactively effective as of January 1st, 2002
(the "Effective
Date"),
by Interplay Entertainment Corp., a Delaware corporation ("INTERPLAY") and
Avalon Interactive Group Limited, a
corporation formed under the laws of England
and Wales ("AVALON"), with reference to the
following facts:
RECITALS
A.
Avalon Interactive
Group Ltd is the
successor in interest to
Virgin Interactive Entertainment ("Virgin"). For the purpose of reading
Agreements and associated papers these two names are one and the same and
constitute one and the same company.
B. The
parties entered into an International Distribution
Agreement dated February 10, 1999,
subsequently amended on July 1, 1999, January
1, 2000, and April 9, 2001 (collectively,
the "Agreement"),
under which Avalon
obtained from Interplay the right to distribute
Interplay products in certain
territories.
C. The
parties desire to amend the Agreement further.
AGREEMENT
NOW, THEREFORE, in
consideration of the mutual agreements and promises
set forth herein, and for other good and
valuable consideration, the receipt and
sufficiency of which are hereby
acknowledged, the parties agree as follows:
I.
Section l(b)
of the Agreement is augmented with the following
provision: Prior to entering into any of
the following:
Any sublicensing of any rights granted to Avalon under the
Agreement
Any deal not covered within the Distribution Agreement
Avalon shall seek approval from
Interplay in writing
by using the form attached
hereto, entitled "Contract Authorization Request". Section I of the Contract
Authorization Request form shall be properly
filled out and sent to
Interplay
for approval; if approved by Interplay,
Avalon may enter into the deal, but must
resubmit the Contract Authorization Request form with
Section III completed for
Interplay's records. Interplay shall not be obligated
to provide Avalon, or the
third party to the deal, any relevant materials or documents necessary to
execute the agreement between Avalon and such third
party until all elements of
the Contract Authorization Request form
process are completed.
II. Section
4(d) of the
Agreement is deleted
in its entirety and replaced
with the following:
"(d) EXPENSE REIMBURSEMENTS. Interplay shall pay for
the direct costs
of manufacturing the
Products (which shall,
for the avoidance
of doubt, include the costs of goods and
any expenses
generated for the creation of the Products,
including but not
limited to, the
creation of packaging,
manuals,
inserts, labels,
translations,
and
agency
commissions
(Agency
commission
solely in Austria and
Portugal)) or having the Products manufactured
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and shipped to Avalon's warehouse under Section 5. In each
case, such payment
will be made in
accordance with
Section
5(k)(C) of the
Agreement, with
respect to Products on video
game console
systems, or Section 2 of Exhibit B of the
Agreement, as amended,
with respect to personal computer
Products. Interplay
shall not have any obligation to pay any
other fee,
expense or other amount to Avalon or Avalon's
vendors for the
services to be provided by Avalon under
Section 5 or
otherwise, except
as expressly provided in
Exhibit B."
III. Section
4(f) of the
Agreement is deleted
in its entirety and replaced
with the following: "Intentionally
deleted."
IV.
Section 5(c) of the
Agreement is deleted in its entirety and replaced
with the following:
"(c) MARKETING. Avalon
shall provide
marketing and
public relations for
the Products in the Territory on behalf
of Interplay in accordance with the following:
(A) MARKETING
PLANS
(i) INTERPLAY
TO PROVIDE EUROPEAN
RELEASE SCHEDULE AND
LIST OF MARKETING
ELEMENTS TO
AVALON Interplay
shall provide to Avalon a full
European release
schedule and the list of main
marketing Elements
available to be mentioned in the
general marketing
and product plans on an annual
basis. For the purpose of Marketing Plans "Elements"
shall be understood to be, but not limited to,
marketing materials
such as Box Art,
Screen Shots,
Texts, Graphic designs, Pictures, Gameplay Outline,
Cheat Codes,
etc... Interplay shall deliver its
first full European release schedule and the list of
main marketing Elements available to be mentioned in
the general
marketing and product plans to Avalon
within ten
(10) business days from the actual
signing of this
Amendment 4,
irrespective
of the
Effective Date of this
Amendment.
Updates of the
European release
schedule are to be provided by
Interplay to Avalon on a bi-weekly basis.
(ii)
AVALON TO SUPPLY
MARKETING PLANS
FOR INTERPLAY'S
APPROVAL. Avalon shall provide to
Interplay two types of marketing plans: 1) a twelve
(12) month general
marketing plan for each calendar
year (January through
December) during the
term of
this
agreement (or with
respect to the general plan
for 2003, from the
date this amendment is signed by
the parties
through December 2003); and 2) a
product-specific
marketing plan for
each Product,
detailing
Avalon's proposed
country by country
marketing efforts. The
general marketing plan shall
include, without
limitation,
all projected
sales,
promotional activities
(including,
among
other
things, advertising,
public relations,
trade shows
and direct mailings,
for all Products and
detailed
by countries
under this
Agreement.
Each product
specific marketing
plan shall include the
specific
list of Elements,
expected from
Interplay,
which
condition its proper
realization. The first
Avalon
general
marketing plan
and product specific
marketing plan
shall be provided by Avalon to
Interplay within
thirty (30) days from
Interplay's
delivery of the
European release
schedule and the
list
of main marketing Elements available to be
mentioned
in the
general
marketing
and
product-specific plans. Each general and
product-specific
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marketing plan shall be updated on a quarterly basis
and the changes
submitted for
Interplay's
written
approval.
(iii) In
the event Interplay does not
provide to
Avalon the said schedule and list of
Elements, Avalon
shall no longer be bound by the
specific content of
the said marketing and
product
plans. In the
event Interplay does not provide,
within a reasonable
time frame around the agreed
date, to Avalon the specific Elements that are
agreed upon
in the marketing plan submitted by
Avalon and approved by Interplay, then Avalon shall
not be bound by the
specific content of the said
marketing and product plan.
(iv)
APPROVAL PROCESS:
Each marketing
plan identified
above shall be submitted to
Interplay for its review prior to implementation and
no marketing plan may
be implemented
until Avalon
receives
Interplay's
prior written
approval.
Interplay must either
approve or reject these plans
within ten (10)
business days of receipt of the
submitted plans.
In the event
Interplay fails to
either give its approval or reject a marketing plan
within the ten business day time period, the plans
shall be deemed approved. In the event of a
rejection, Interplay
shall forthwith provide Avalon
with the grounds for such rejection.
(v) Avalon
shall be responsible for
and shall provide all marketing, advertising,
promotion and public
relations for the
Products in
the Territory
in accordance with the Marketing
Plans. All
costs and charges of marketing,
advertising and
promotion
of the Products,
including, without limitation, third
