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ASSET PURCHASE AGREEMENT

by and between
Apogee Software, Ltd.
a/kJa 3D Realms

and

Gearbox Software, LLC

Dated: February 2nd, 2010

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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is entered into as of February 2, 2010 (the "Effective
Date") by and between Apogee Software, Ltd., a Texas limited partnership located at 1661 Northwest
Highway, Garland. TX 75041 (the "Seller"), and Gearbox Software, LLC, a Texas limited liability
company located at 101 East Park Blvd., Ste, 1200. Plano, Texas 75074 (the "Buyer"). Together. the
Seller and the Buyer are the "Parties" and individually a "Party."

1.1 DEFINMONS
For the purposes of this Agreement, the following terms and variations thereof have the meanings
specified or referred to in this Section 1.1:
"AAA-rated Videogame" - a videogame that has a developmental budget exceeding USS 10 million (ten
million dollars) and is developed for the PC, Microsoft X-Box360, and the Sony PS3.
"Accounts Receivable" - (a) all trade accounts receivable and other rights to payment from customers of
Seller and the full benefit of all security for such accounts or rights to payment, including but not limited to all
trade accounts receivable representing amounts receivable in respect of goods shipped or products sold or
services rendered to customers of Seller, (b) all other accounts or notes receivable of Seller and the full benefit
of all security for such accounts or notes, and (c) any claim, remedy. or other right related to any of the
foregoing.
"Assets" - defined as everything that transfers from the Seller to the Buyer as a result of this Agreement, as
shown in Exhibit 2.1.
"Assignment and Assumption Agreement" -as defined in Exhibit 2.7(a)(i).
"Assumed Liabilities"-as defined in Section 2.4.
"Best Efforts" - the efforts that a prudent Person desirous of achieving a result would use in similar
circumstances to achieve that result as expeditiously as possible, provided, however, that a Person required to
use Best Efforts under this Agreement will not be thereby required to take actions that would result in material
adverse change in the benefits to such Person of this Agreement and the Contemplated Transactions or to
dispose of or make any change to its business, expend any material funds or incur ally other material burden.
"Breach- - any breach of, or any inaccuracy in, any representation or warranty or any breach of, or failure to
perform or comply with, any covenant or obligation, in or of this Agreement, or any event which with the
passing of time or the giving of notice, or both. would constitute such a breach, inaccuracy or failure in or of
this Agreement.
"Business Day" - any day other than (a) Saturday or Sunday or (b) any other day on which banks in Texas are
permitted or required to be closed.

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"Buy Back" - the amount of money that the Seller will pay the Buyer in order to have a full return of the Duke
IP.
"Buyer"- as defined in the first paragraph of this Agreement.
"Buyer Indemnified Persons" - as defined in Section 7.2.
"Closing" - as defined in Section 24.
"Closing Date"- the date on which the Closing actually takes place.
"Confidential Information" - as defined in Section 8.

-Consent" - any approval, consent, ratification, waiver, or other authorization.
"Contemplated Transactions" - all of the transactions contemplated by this Agreement.
"Contract" any agreement, contract, Lease, consensual obligation, promise or undertaking (whether written
or oral and whether express or implied), whether or not legally binding.
"Copyrights" - as shown in Exhibit 2.7(a)(ii)(A)(1).
"Cost of Goods Sold- - For purposes of this Agreement, "Cost of Goods Sold" means the aggregate actual
costs paid by or on behalf of Publisher to third parties (which may not be affiliated with Publisher) solely and
directly in conjunction with the Games for the following, provided that in no event shall any expense be
double counted or double recouped:
(a) reasonable manufacturing costs;
(b) reasonable freight and similar third party handling charges paid by Publisher:
(c) applicable duties, vendor added taxes and other similar taxes;
(d) solely to the extent not otherwise recouped, third party pre-production and
production expense, such as expenses, royalties and/or licensing fees related to full
motion video and motion capture processing, voice recording, voiceover and
music;
(e) solely to the extent not otherwise recouped, Third Party Technology costs and
expenses;
(f) solely to the extent not otherwise recouped. Motion video, voiceovers and music
costs and expenses incurred by Publisher:
(g) Platform and other reasonable in-game technology license royalties:
(h) amounts expended by Publisher in connection with quality assurance and to correct
Bugs in the Games (both before and after the commercial release of the Games) or
to replace Games containing Bugs:

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(i) marketing costs in the form of co-op and marketing development funds actually
paid to retailers for placement of the Games and related display advantages,
provided, however, that such funds shall not exceed 5% of the wholesale price; and
(j)

commissions and similar fees paid to sales representatives not affiliated with
Publisher and other third parties involved in distributing the Game; provided,
however, that such funds shall not exceed 5% of the wholesale price

"Damages" - as shown in Section 7.2,
"Duke IP" -the Duke Nukem Intellectual Property Assets that will transfer on Closing from Seller to Buyer.
"Effective Time"- the time at which the Closing is consummated.
"Encumbrance" - any charge, claim, community or other marital property interest. condition, equitable
interest, lien, option, pledge. security interest, mortgage, right of way. easement, encroachment, servitude, right
of first option, right of first refusal or similar restriction, including an restriction on use, voting (in the case of
any security or equity transfer). transfer, receipt of income or exercise of any other attribute of ownership.
"Excluded Assets" - as shown in Exhibit 2.2.
"GAAP" - generally accepted accounting principles for financial reporting in the United States. applied on a
basis consistent with the basis on which the Balance Sheet and the other financial statements.
"Indemnified Person"- as defined in Section 7.2.
"Indemnifying Person" -as defined as the person providing the Indemnification.
"Intellectual Property Assets- - as defined in Section 3.7.
"Inventories" - all inventories of Seller, wherever located, including all finished goods, work in process, raw
materials, spare parts, and all other materials and supplies to be used or consumed by Seller in the production
of finished goods.
"IRS" the United States Internal Revenue Service and, to the extent relevant, the United States Department
of Treasury.
"Knowledge"- an individual will be deemed to have Knowledge of a particular fact or other matter if:
(a) that individual is actually aware of that fact or matter; or.
(b) a prudent individual could be expected to discover or otherwise become aware of that fact or matter in
the course of conducting a reasonably comprehensive investigation regarding the accuracy of any
representation or warranty contained in this Agreement.
A Person (other than an individual) will be deemed to have Knowledge of a particular fact or other matter if
any individual who is serving, or who has at any time served, as a director, officer, partner, executor, or trustee
of that Person (or in any other similar capacity) has. or at any time had. Knowledge of that fact or other matter
(as set forth in (a) and (b) above), and such individual (and any individual party to this Agreement) will be

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deemed to have conducted a reasonably comprehensive investigation regarding the accuracy of the
representations and warranties made herein by that Person or individual.
"Legal Requirement" - any federal, state, local. municipal, foreign, international, multinational or other
constitution, law, ordinance, principle of common law, code, regulation, statute, or treaty.
"Liability" - with respect to any Person, any liability or obligation of such Person of any kind, character or
description, whether known or unknown. absolute or contingent, accrued or unaccrued, disputed or undisputed_
liquidated or unliquidated. secured of unsecured, joint or several, due or to become due, vested or unvested,
executor, determined, determinable or otherwise, and whether or not the same is required to be accrued on the
financial statements of such Person.
"Marks" - as shown in Exhibit 2.7(a)(ii)(C)(1).
"Minimum Threshold" - as defined in Exhibit 2.10,
"Order" - any order, injunction. judgment, decree, ruling, assessment or arbitration award of any
Governmental Body or arbitrator.
'Ordinary Course of Business" - an action taken by a Person will be deemed to have been taken in the
Ordinary Course of Business only if that action:
(a) is consistent in nature, scope and magnitude with the past practices of such Person and is taken in the
ordinary course of the normal, day-to-day operations of such Person;
(b) does not require authorization by the members of such Person (or by any Person or group of Persons
exercising similar authority) and does not require any other separate or special authorization of any
nature; and,
(c) is similar in nature, scope, and magnitude to actions customarily taken, without any separate or special
authorization, in the ordinary course of the normal, day-to-day operations of other Persons that are in
the same line of business as the Person.
"Patents" - as shown in Exhibit 2.7(a)(ii)(B)(1).
"Person" - an individual, partnership, corporation, business trust, limited liability company, limited liability
partnership, joint stock company, trust, unincorporated association, joint venture or other entity or a
Governmental Body.
'Proceeding" - any action, arbitration, audit. hearing. investigation, litigation or suit (whether criminal, civil,
administrative, judicial or investigative, whether formal or informal, whether public or private) commenced.
brought, conducted or heard by or before. or otherwise involving, any Governmental Body or arbitrator.
"Purchase Price" - as defined in Exhibit 2.3.
"Publisher" -shall mean any entity (expressly including any Related Persons to such entity) that publishes any
work based upon or embodying any portion of Duke IP. "Publisher" shall include, without limitation, TakeTwo Interactive Soli-ware. Inc., 575 Broadway, 3rd Floor, New York. NY 10012, 2K Games, Inc., Buyer (if
this
Buyer self-publishes any works based upon or embodying Duke IP). any successors and assigns

of

Agreement. and any Related Persons to any of the foregoing.

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"Publisher Settlement" - includes the amount of the Publisher's prior loans (plus interest) to the Seller and the
reasonable & ordinary costs involved in settling the lawsuit and security interest issues. as shown in Exhibit
2.4.
"Record" - informational that is inscribed on a tangible medium or that is stored in an electronic or other
medium and is retrievable in perceivable form.
"Related Person" With respect to a particular individual:
(a) each other member of such individual's Family;
• (b) any Person that is directly or indirectly controlled by any one or more members of such individual's
Family;
(c) any Person in which members ol' such individual's Family hold (individually or in the aggregate) a
Material Interest; and.
(d) any Person with respeet to which one or more members of such individual's Family serves as a
director, officer, partner, executor, or trustee (or in a similar capacity).
With respect to a specific Person other than an individual:
(a) any Person that directly or indirectly controls, is directly or indirectly controlled by or is directly or
indirectly under common control with such specified Person;
(b) any Person that holds a Material Interest in such specified Person;
(c) each Person that serves as a director, officer, partner, executor. or trustee (or in a similar capacity):
(d) any Person in which such specified Person holds a Material Interest; and,
(e) any Person with respect to which such specified Person serves as a general partner or a trustee (or in a
similar capacity).
For purposes of this definition, (a) "control" (including "controlling," "controlled by." and "under the common
control with") means the possession, direct or indirect, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting securities, by contract or
otherwise, and shall be construed as such term is used in the rules promulgated under the Securities Act; (b)
the "Family" of an individual includes (i) the individual. (ii) the individual's spouse. (iii) any other natural
person who is related to the individual or the individual's spouse within the second degree, and (iv) any other
natural person who resides with such individual: and. (c) "Material Interest" means direct or indirect beneficial
ownership (as defined in Rule l3d-3 under the Exchange Act) of voting securities or other voting interests
representing at least I 0 percent (10%) of the outstanding voting power of a Person or equity securities or other
equity interests representing at least ten percent (10%) of the outstanding equity securities or equity interests in
a Person.
"Representative" - with respect to a particular Person, any director, officer, manager, employee, agent,
consultant, advisor, accountant, financial advisor, legal counsel or other representative of that Person.
"Net Revenues" - is defined as the total amount of' revenues and proceeds of any kind for sales, licenses,
rentals or other exploitation of the Duke IP and for all Games units that are invoiced or received by or on
behalf of Publisher or its affiliates less the sum of ( I ) Cost of Goods Sold, and (2) returns, discounts,
markdowns and allowances, with respect to which Publisher shall be entitled to deduct a reserve equal to 15%
of Net Revenue. provided, however, that all such reserves shall be liquidated one-hundred and eighty days
( ISO) following the quarter in which the reserve was deducted and if actual returns, discounts, markdowns and
allowances exceed the reserve, the difference shall reduce future payments due and payable to Buyer.
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"Retained Liabilities"- as described in Section 2.4(b(.
"Royalties" - the percentage of Net Revenues of sales, licenses, rentals or other exploitation of the Duke IP
paid to Buyer by the Publisher after all expenses, including advances to Buyer, have been recouped.
"Royalty Rate"- for all AAA-rated videogames, the Buyer will pay to the Seller 30% of all received Royalties
from a Publisher. For all non-PC/non-console games (e.g., hand held games and mobile platform games), the
Buyer will pay to the Seller 30% of all received Royalties from a Publisher.
"SEC" - the United Slates Securities and Exchange Commission.
"Seller" - as defined in the first paragraph of this Agreement.
"Shareholders" - in this Agreement are defined as partners, stockholders, shareholders, or members.
"Software" - all computer software and subsequent versions thereof in whatever form, including but not
limited to source code, object, executable or binary code, objects, comments, screens, user interfaces, report
formats, templates, menus, buttons and icons and all files, data, materials, manuals, design notes and other
items and documentation related thereto or associated therewith.
"Tax" - any income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, property, environment, windfall profit, customs, vehicle, capital stock, franchise, employees' income
withholding, foreign or domestic withholding, social security, unemployment, disability, real property.
personal property, sales, use, transfer, value added, alternative, add-on minimum and other tax, fee,
assessment, levy tariff, charge or duty of any kind whatsoever and any interest, penalty, addition or additional
amount thereon imposed. assessed or collected by or under the authority of any Governmental Body or payable
under any tax-sharing agreement or arty other Contract.
"Third Party" - a Person who is not a party to this Agreement
"Third-Party Claim" - any claim against any Indemnified Person by a Third Party, whether or not involving a
Proceeding.
"Walk-Away" - as defined in Exhibit 2.10.
1.2 USAGE
(a) Interpretation. In this Agreement, unless a clear contrary intention appears:
i. the singular number includes the plural number and vice versa;
ii.

reference to any Person includes such Person's successors and assigns. but if applicable, only if
such successors and assigns are not prohibited by this Agreement. and reference to a Person in
a particular capacity excludes such Person in any other capacity or individuality;

iii.

reference to any gender includes the other gender;

iv.

reference to any agreement, document or instrument means such agreement, document or
instrument as amended or modified and in effect from time to time in accordance with the terms
thereof;

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v. reference to any Legal Requirement means such Legal Requirement as amended, modified.
codified, replaced, or reenacted. in whole or in part, and in effect from time to time, including
rules and regulations promulgated thereunder, and reference to any section or other provision of
any Legal Requirement means that provision of such Legal Requirement from time to time in
effect and constituting the substantive amendment, modification, codification, replacement, or
reenactment of such section or other provision;
vi. "hereunder," "hereof." "hereto" and words of similar import shall be deemed references to this
Agreement as a whole and not to any particular Article. Section or other provision hereof;
vii.

"including" (and with correlative meaning "include") means including without limiting the
generality of any description preceding such term:

viii.

"or" is used in the inclusive sense of -and/or";

ix.

with respect to the determination of any period of time. "from" means "from and including"
and "to" means "to but excluding; and,

(b) Accounting Terms and Determinations. Unless otherwise specified herein, all accounting terms
used herein shall be interpreted and all accounting determinations hereunder shall be made in
accordance with GAAP.

(c) Legal Representation of the Parties. This Agreement was negotiated by the Parties with the
benefit of legal representation, and any rule of construction or interpretation otherwise requiring
this Agreement to be construed or interpreted against any party shall not apply to any
construction or interpretation hereof.
2.0

SALE AND TRANSFER OF ASSETS; CLOSING
2.1 ASSETS TO BE. SOLD
On the terms and subject to the conditions set forth in this Agreement. at the Closing. but effective as
of the Effective Time, the Seller will sell, convey, assign, transfer and deliver to Buyer. and Buyer
will purchase and acquire from Seller, free and clear of any and all Encumbrances, other than the
Permitted Encumbrances identified in the Assumed Liabilities. all of Seller's right, title and interest in
the Assets described in Exhibit 2.1.
2.2 EXCLUDED ASSETS
The Parties agree that this Agreement provides for the exclusive transfer of all intellectual property
described as the Duke Nukem Universe and Duke Nukem Game Property and all future development
in the Duke IP. However, prior to Closing, the Seller has developed or is developing several games
using the Duke IP and it is those games and movie rights to those previously developed games or
games currently being developed that are to be excluded from this Agreement. Notwithstanding
anything to the contrary contained in Section 2.1 or elsewhere in this Agreement, the Seller's assets
listed on Exhibit 2.2 (collectively, the "Excluded Assets") are not part of the sale and purchase
contemplated hereunder. are excluded from the Assets and shall remain the property of Seller after
the Closing.
2.3 CONSIDERATION
The consideration for the Assets (the "Purchase Price") will be as shown in Exhibit 2.3. Buyer will
pay the Purchase Price to Seller based on its Allocation, as contemplated in Section 2.5.

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2.4 LIABILITIES
(a) Assumed Liabilities. On the Closing Date, Buyer will assume and agree to discharge only the
Assumed Liabilities of Seller (the "Assumed Liabilities") that are listed in Exhibit 2.4.
(d) Retained Liabilities. The Retained Liabilities shall remain the sole responsibility of and shall be
retained, paid, performed. and discharged solely by Seller. "Retained Liabilities" shall mean
every Liability of Seller, other than the Assumed Liabilities, including:
(a)
Any Liability arising out of or relating to products of Seller to the extent developed,
manufactured, or sold prior to the Effective Date other than to the extent assumed under
Section 2.4;
(ii)

Any Liability under any Contract assumed by Buyer pursuant to Section 2.4 that arises
after the Effective Date, but that arises out of or relates to any Breach that occurred prior
to the Effective Date;

(iii)

Any Liability for Taxes, including (A) any Taxes arising as a result of Seller's operation
of its business or ownership of the Assets prior to the Effective Date, (B) any Taxes that
will arise as a result of the sale of the Assets pursuant to this Agreement and (C) any
deferred Taxes of any Nature:

(iv)

Any Liability under any Contract not assumed by Buyer under Section 2.4,including any
Liability arising out of our relating to Seller's credit facilities or any security interest
related thereto:

(v)

any Liability relating to Employees, Employee Plans, Employee Grievances, or

(vi)

any Liability to indemnify, reimburse, or advance amounts to any officer, director,

(vii)

any Liability to distribute to any of Seller's shareholders or otherwise apply all or any

(viii)

any Liability arising out of any Proceeding pending as of the Effective Date;

(ix)

any Liability arising out of any Proceeding commenced after the Effective Date and

contractor issues entered into by Seller;
employee, or agent of Seller;
part of the consideration received hereunder;

arising out of or relating to any occurrence or event happening prior to the Effective
(x)

Date;
any Liability arising out of or as a resulting from Seller's compliance or non-compliance

(xi)

any Liability of Seller under this Agreement or any other document executed in

with any legal Requirement or Order of any Governmental body;
connection with the Contemplated Transactions; and,
WO

any Liability of Seller based on Seller's acts or omissions occurring after the Effective
Date.

2.5 ALLOCATION. The Purchase Price will be allocated in accordance with Exhibit 2.4. After the
Closing, the Parties will make consistent use of the allocation, fair market value. and useful lives
specified in Exhibit 2.4 for all Tax purposes and in all filings, declarations, and reports with the IRS
in respect thereof, including the reports required to be filed under Section 1060 of the Code. Buyer
will prepare. if necessary, and deliver IRS Form 8594 to Seiler within forty-Eve (45) days after the
Closing Dale to be filed with the IRS. In any Proceedings related to the determination of any Tax,

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neither Buyer nor Seller or Shareholders shall contend or represent that such allocation is not a
correct allocation.
2.6 Ci.osm.i. The purchase and sale provide Ibr in this Agreement (the "Closing") will take place at
the offices of Buyer's General Counsel in the Buyer's headquarters, commencing at 11:00 a.m.
(Central Time) on the 2nd of February, 2010, unless Buyer and Seller otherwise agree in writing.
Subject to the provisions of Section 9 failure to consummate the purchase and sale provided in this
Agreement on the date and time and at the place determined pursuant to this Section 2.6 will not
result in the termination of this Agreement and will not relieve any Party of any obligation under this
Agreement. In such situation, the Closing will occur as soon as practicable, subject to Section 9.
2.7 Closing Obligations
in addition to any other documents to be delivered under other provisions of this Agreement, at the
Closing:
(a) Seller and its Shareholders, as the case may be. shall deliver to Buyer, together with sufficient
funds to pay all fees and Taxes necessary for the transfer, filing, or recording thereof:
(i)
an assignment of all of the Assets that are intangible personal property in the form of
Exhibit 2.7(n)(i) except for that certain agreement between Apogee Software, Ltd. And
Triptych Games. LLC, dated July 8, 2009. which assignment shall also contain Buyer's
undertaking and assumption of the Assumed Liabilities (the "Assignment and
Assumption Agreement") executed by Seller;
(ii)

assignments of all Intellectual Property Assets and separate assignments of all registered
Copyrights in the form of Exhibit 2.7(a)(ii)(A}, Patents in the form of Exhibit
2.7(a)(ii)(B), and Marks in the form of Exhibit 2.7(a)(ii)(C) executed by Seller:

(iii)

such other deeds, bills of sale, Contracts, assignments, cerlilicates of title, documents and
other instruments of transfer and conveyance as may be requested by Buyer, each in form
and substance satisfactory to Buyer and its legal counsel and executed by Seller;

(iv)

a certificate executed by Seller and each Shareholder as to the accuracy of their
representations and warranties as of the Closing Date in accordance with Section 7.1 and
as to their compliance with and performance of their covenants and obligations to be
performed or complied with at or before the Closing in accordance with Section 7.2; and,

(v)

a certificate of the Secretary of the Seller certifying, as complete and accurate as of the
Closing, attached copies of the requisite resolutions or actions of the Seller's Managers
and Shareholders approving the execution and delivery of this Agreement and the
consummation of the Contemplated Transactions and certifying the incumbency and
signatures of the officers of Seller executing this Agreement and any other document
relating to the Contemplated Transactions.

(b) Buyer shall deliver to Seller and Shareholders, as the case may be:
the Assignment and Assumption Agreement signed by Buyer;
a certificate executed by Buyer and each Shareholder as to the accuracy of their
representations and warranties as of the Closing Date in accordance with Section 8.1 and

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as to their compliance with and performance of their covenants and obligations to be
performed or complied with at or before the Closing in accordance with Section 8.2;
(iii)

a certificate of the Secretary of the Buyer certifying, as complete and accurate as of the
Closing, attached copies of the requisite resolutions or actions of the Seller's Managers
and Shareholders approving the execution and delivery of this Agreement and the
consummation of the Contemplated Transactions and certifying the incumbency and
signatures of the officers of Seller executing this Agreement and any other document
relating to the Contemplated Transactions; and

(iv)

any payments due as of the Closing Date in accordance with Exhibits 2.3 and/or 2.4.

2.8 BUY-BACK. The Parties agree that the Seller may repurchase the Duke IP at a price equal to the
Buy-Back. The Buy-Back is defined in Exhibit 2.8 herein.
2.9 SALE OF DUKE IP 10 A THIRD-PARTY. In the future, should the Seller. with the written notice to
the Buyer, decide to sell the Duke 1P from the Buyer to a Third-Party, the Parties agree that the
proceeds from said sale of the Duke IP will be split between the Seller and the Buyer as shown in
Exhibit 2.9 herein.
2.10 DEVELOPMIENT OF DUKE NUKEM FOREVER. The Parties agree that the AAA-rated videogame,
titled Duke Nukem Forever ("DNF-), will be completed on the PC and developed for the console
according to the procedures shown in Exhibit 2.10.
2.11 DUKE BEGINS DEVELOPMENT MONIES AND REVENUES. The Parties agree that Seller shall be
paid the portion of the monies and revenue generated by or from the development and exploitation of
the "Duke Begins" videogame (a game currently being developed by Buyer pursuant to a separate
development agreement with Take-Two Interactive Software, Inc.) as set forth in the October 27.
2007 "Development and Publishing of 'Duke Begins' Videogame" between Seller and Take-Two
Interactive Software (the "Duke Begins Agreement") — such that Seller shall be paid as if this Asset
Purchase Agreement were not in place and regardless of the sale of Assets hereunder.
2.12 ANCILLARY PROJECTS. The Parties agree that all Ancillary Projects shall be subject to mutual
discussions between the Parties who shall both decide in good faith whether to proceed with the
project and, if so, which Party of the two proceeds with the deal. "Ancillary Projects" shall mean (i)
in-game and in-film advertisements, (ii) consumer goods and sundries (other than videogames,
videogame-related products, films or movies) bearing the names, characters, and themes based upon
the Duke Nukem Universe. and (iii) books, comic books, magazines, and all other print-based media
products bearing the names. characters, and themes based on the Duke Nukem Universe.
In the event Seller proceeds with the deal, Buyer shall grant Seller the necessary rights for the
deal. The Parties agree that all monies received by either Party from third-parties relating to such
Ancillary Projects using the Duke IP will be split equally. The Party handling the project (the
"Negotiating Party") will have their out-of-pocket expenses reimbursed before the revenue split. The
Negotiating Party is responsible for notifying the other Party as to its amount and splitting the money
according to this Agreement. All monies relating to this Article will be wired to the other Party no
later than ten (10) business days after the Negotiating Party has received said money unless the
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Parties. communicating in good faith, determine that the monies should not be split for a period of
time. Once the decided period of time has passed. the Negotiating Party will split said money
according to this paragraph. The Parties acknowledge they have bilateral first option rights and
obligations with regard to such Ancillary Projects. In the event that two calendar weeks have passed
after the Negotiating Party has raised the option to develop the franchise deals, if the other party does
not confirm in writing (e-mail will suffice) to disapprove of the deal, then such Negotiating Party
offering the Ancillary Project is authorized to proceed at its discretion with regards thereto. For all
Ancillary Projects, bilateral Audit Rights according to the manner described in this Agreement will
hold.
2.13 NEW PROJECT DISCUSSIONS. The Parties agree that any new videogame development projects
(beyond the Duke Begins and DNF videogames) and any licensing of the Duke IP shall be subject to
mutual good faith discussions between the Parties regarding such new project(s).
2.14 NON-AAA Pl./11E0RM GAMES. The Parties agree that any non-AAA platform games based upon
the Duke IP (such as hand-held games and mobile platform games) (the "Small Game Projects") will
be subject to mutual good faith discussions between the Parties on whether to proceed with the Small
Game Project and. if so, which party of the two proceeds with the project. In the event the Parties
decide that Seller should proceed with the project, Buyer shall grant Seller the necessary rights for the
project. The Parties agree that all monies received by either Party from third-parties relating to such
Small Game Projects using the Duke IP will be split as follows: (a) for a project managed and funded
by Seller. 70% of net revenues (after recoupment of all Seller's expenses) to Seller and 30% of net
revenues to Buyer; (b) for a project managed and funded by Buyer, 70% of net revenues (after
recoupment of all expenses by Buyer) to Buyer and 30% of net revenues to Seller. The Party handling
the project (the "Negotiating Party") will have their out-of—pocket expenses reimbursed before the
revenue split. The Negotiating Party is responsible for receiving monies from third-parties on the
project and notifying the other Party as to its amount and splitting the money according to this
Agreement. All monies relating to this Article will be wired to the other Party no later than ten (10)
business days after the Negotiating Party has received said money unless the Parties, communicating
in good faith, determine that the monies should not be split for a period of time. Once the decided
period of lime has passed. the Negotiating Party will split said money according to this paragraph. For
all Small Game Projects, bilateral Audit Rights according to the manner described in this Agreement
will hold.
3.0 REPRESENTATIONS AND WARRANTIES OF SELLER AND SHAREHOLDERS
Seller and each Shareholder represent and warrant. jointly and severally, to Buyer as follows:
3.1 ORGANIZA-DON AND GOOD STANDING. Seller is a limited partnership duly organized. validly
existing, and in good standing under the laws of its jurisdiction of registration, with full corporate
power and authority to conduct business as it is now being conducted, to own or use the properties
and assets that it purports to own or use, and to perform all its obligations under the Seller Contracts.
3.2 ENFORCEABILITY; Aumoarrv; NO CONFLICT.

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(a) This Agreement constitutes the legal, valid, and binding obligation of Seller and each Shareholder.
enforceable against each of them in accordance with its terms. Upon the execution and delivery by
Seller and Shareholders of the Assignment and Assumption Agreement and each other agreement to
be executed or delivered by any of all of Seller and Shareholders at Closing (collectively, the
"Seller's Closing Documents"), each of Seller's Closing Documents will constitute the legal, valid
and binding obligation of each Seller and the Shareholders, enforceable against each of them in
accordance with its terms. Seller has the absolute and unrestricted right, power and authority to
execute and deliver this Agreement and the Seller's Closing Documents, and such action has been
duly authorized by all necessary action by Seller's Shareholders and Managers. Each Shareholder has
all necessary legal capacity to enter into this Agreement and the Seller's Closing Documents to which
such Shareholder is a party and to perform his obligations hereunder and thereunder.
{b) Except as set forth in Section 3.2(b) neither the execution and delivery of this Agreement nor the
consummation or performance of any of the Contemplated Transactions will, directly or indirectly
(with or without notice or lapse of time):
(i)
(ii)

Breach (A) any provision of any of the Governing Documents of Seller or (B) any
resolution adopted by the Managers or the shareholders of Seller;
Breach or give any Governmental Body or other Person the right to challenge arty of the
Contemplated Transactions or to exercise any remedy or obtain any relief under any
Legal Requirement or any Order to which Seller or either Shareholder or any of the
Assets, maybe subject;

(iii)

contravene, conflict with or result in a violation or breach of any of the terms or
requirements of. or give any Governmental Body the right to revoke, withdraw, suspend.
cancel, terminate or modify, any Governmental Authorization that is held by Seller or
that otherwise relates to the Assets;

(iv)

cause Buyer to become subject to, or to become liable for the payment of, any Tax;

(v)

except for any Assumed Liabilities, breach any provision of, or give any Person the right

(vi)

or payment under, or to cancel. terminate or modify, any Seller Contract;
except for any Assumed Liabilities, result in the imposition or creation of any

to declare or exercise any remedy under. or to accelerate the maturity or performance of,

Encumbrance upon or with respect to any of the Assets; or
(vii)

result in any shareholder of the Seller having the right to exercise dissenters' appraisal

rights.
(c) Except as set forth in Section 3.2(cl. neither the Seller nor either Shareholder is required to give
notice to or obtain any Consent from any Person in connection with the execution and delivery of
this Agreement or the consummation or performance of any of the Contemplated Transactions.
(d) Buyer agrees that any allegation or claim by Take-Two Interactive Software, Inc. (or its affiliates)
that Seller did not have the right, power or authority to enter into this Agreement based upon
either (i) the December _2000 "License Agreement" between Seller and Take-Two Interactive
Software, Inc. for the development of the "Duke Nukem Forever- videogame (executed on or
about May 8, 2001) (hereafter, the "DNF Agreement") and/or (ii) the Duke Begins Agreement
shall not be considered a breach of any provision in Section 3.2 and its subparagraphs.
(e) To the Knowledge of the Seller, Seller has the right, power or authority to enter into this
Agreement.
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3.3 SUFFICIENCY OF ASSETS. Except as set forth in Section 3.6, the Assets (a) constitute all of the
assets. tangible and intangible, of any nature whatsoever, necessary or useful to the Assets and (b)
include all of the operating, design, creative, and other assets relating to the Assets.
3.4 No MA I Fiona. ADVERSE CHANGE. Since December 1, 2009, there has not been any material
adverse change in the business. operations, prospects, assets, results of operations or condition
(financial or other) of Seller, and no event has occurred or circumstance exists that will or could
reasonably be expected to have a result in such a material adverse change.
3.5 LEGAL PROCEEDINGS; ORDERS.
(a) Except as set forth in Exhibit 2.4, there is no pending or, to Seller's Knowledge. threatened
Proceeding (i) by or against Seller or that otherwise relates to or may affect the business of, or
any of the assets owned or used by. Seller; or (ii) that challenges, or that may have the effect of
preventing, delaying, making illegal or otherwise interfering with, any of the Contemplated
Transactions.
(b) To the Knowledge of the Seller, no event has occurred or circumstance exists that is reasonably
likely to give rise to or serve as a basis for the commencement of any such Proceeding, other than
the Assumed Liabilities. Seller has delivered to Buyer copies of all pleadings, correspondence
and other documents relating to each Proceeding listed in Exhibit 2.4.
(c) Except as set forth herein. Seller has not received, at any time, any notice or other communication
(whether oral or written) from any Governmental Body or any Person regarding any actual,
alleged, possible, or potential violation of. or failure to comply with, any term or requirement of
any Order to which Seller.or any of its Assets is or has been subject.
3.6 CONTRACTS; No DEFAULTS.
(a) Exhibit 3.6 contains an accurate and complete list. and Seller has delivered to Buyer accurate and
complete copies, of:
(i)

each and every Contract involving in whatever shape or manner the Assets;

(ii)

each Contract (however named) involving the sharing of profits, losses. costs, or
liabilities by Seller with any other Person that could relate to the Assets.

(b) Each Contract identified or required to be identified herein and which is to be assigned to or
assumed by Buyer under this Agreement is in full force and effect and is valid and enforceable in
accordance with its terms.
(c) To the Knowledge of Seller. no Contract identified or required to be identified herein and which
is to be assigned to or assumed by Buyer under this Agreement will upon completion or
performance thereof have a material adverse affect on the business, assets. or condition of Buyer,
3.7 INTELLECTUAL PROPERTY ASSETS.
(a) The term "Intellectual Property Assets" means all intellectual property owned or licensed (as
licensor or licensee) by Seller in which Seller has a proprietary interest has a proprietary interest
that will transfer on Closing to Buyer, including:
Asset's name, all assumed fictional names, trade names. registered and unregistered
(i)
trademarks, service marks, and applications (collectively, the "Marks");

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(ii)

all patents, patent applications and inventions and discoveries that may be patentable
(collectively, "Patents");
(iii)
all registered and unregistered copyrights in both published and unpublished works
(collectively, "Copyrights");
all in mask works;
(iv)
(v)
all know-how, trade secrets, confidential or proprietary information, customer lists,
Software, technical information, data, process technology, plans, drawings and blue
prints (collectively, "Trade Secrets");
(vii)
all rights in inferno websites and internet domain names (collectively. "Net Names-)
presently used by Seller that refer to the Assets.
(b) With the exception of the Take-Two Interactive Software security interest and other Assumed
Liabilities identified in Exhibit 2.4. Seller is the owner or licensee of all right, title, and interest
in and to each of the Duke IP Assets, free and clear of all Encumbrances, and has the right to use
without payment to a Third-Party all of the Intellectual Property Assets.
(c) Exhibit 2.7(aXii)(8)(1) contains a complete and accurate list and summary description of all
Patents.
(i)

All of the issued Patents are currently in compliance with formal legal requirements

(including payment of filing, examination and maintenance fees and proofs of working or use),
are valid and enforceable, and are not subject to any maintenance fees or taxes or actions failing
due within ninety (90) days after the Closing Date.
(ii)

No Patent has been or is now involved in any interference, reissue, reexamination, or

opposition Proceeding. To Seller's Knowledge, there is no potentially interfering patent or patent
application of any Third Party.
(iii)

No Patent is infringed or, to Seller's Knowledge, has been challenged or threatened in

any way and (B) none of the products developed or created, nor any process or know-how used,
by Seller infringes or is alleged to infringe any patent or other proprietary right of any Person.
(iv)

All products developed or created, made, used or sold under the Patents have been

marked with the proper patent notice.
(e) Exhibit 2.7(aXii)(C)(1) contains a complete and accurate list and summary description of all
Marks.
All Marks have been registered with the United States Patent and Trademark Office, are
currently in compliance with all formal Legal Requirements (including the timely postregistration filing of affidavits of use and incontestability and renewal applications), are valid and
enforceable and are not subject to any maintenance fees or taxes or actions falling due within
ninety (90) days alter the Closing Date.
No Mark has been or is now involved in any opposition. invalidation, or cancellation
(ii)
Proceeding. To Seller's Knowledge, no such action is threatened with respect to any of the
Marks.
(iii)

To Seller's Knowledge, there is no potentially interfering trademark or trademark

application of any other Person.
No Mark is infringed or, to Seller's Knowledge. has been challenged or threatened in any
(iv)
way. None of the Marks used by Seller infringes or is alleged to infringe any trade name.
trademark or service mark of any Person,
All products developed or created, made, used or sold containing a Mark bear the proper
(iv)
federal registration notice where permitted by law.

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(f) Exhibit 2.7(a)(ii)(A)(1) contains a complete and accurate list and summary description of all
Copyrights.
(i)

All of the registered Copyrights are currently in compliance with formal Legal

Requirements, are valid and enforceable, and are not subject to any maintenance fees or taxes or
actions falling due within ninety (90) days after the Closing Date.
(ii)
No Copyright is infringed or, to Seller's Knowledge, has been challenged or threatened in
any way. None of the subject matter of any of the Copyrights used by Seller infringes or is
alleged to infringe any Copyright of any Third Party or is a derivative work based on the work of
any other Person.
(iii)

All works encompassed by the Copyrights have been marked with the proper copyright

notice.
(g) With respect to each Trade Secret, the documentation relating to such Trade Secret is current,
accurate an sufficient in detail and content to identify and explain it and to allow its full and
proper use without reliance on the knowledge or memory of any individual.
(i)

Sell has taken all precautions to protect the secrecy, confidentiality and value of all Trade

Secrets (including the enforcement by Seller of a policy requiring each employee or contractor to
execute proprietary information and confidentiality agreements substantially in Seller's standard
form, and all current and former employees and contractors of Seller have executed such an
agreement).
(ii)

Seller has good title to and an absolute right to use the Trade Secrets. The Trade Secrets

are not part of the public knowledge or literature and, to Seller's Knowledge, have not been used,
divulged or appropriated either for the benefit of any Person (other than Seller) or to the detriment
of Seller. No Trade Secret is subject to any adverse claim or ahs been challenged or threatened in
any way or infringes any intellectual property right of any Person.
(h) Exhibit 3.7(h) contains a complete and accurate list and summary description of all Net Names.
(i)

All Net Names (including URLS) have been registered in the name of Seller and are in
compliance with all formal Legal Requirements.

(ii)

No Net Name has been or is now involved in any dispute, opposition, invalidation or
cancelation Proceeding anti no such action is threatened with respect to any Net Name.

(iii)

There is no domain name application pending of any other person which would or would
potentially interfere with or infringe any Net Name.

(iv)

No Net Name is infringed or has been challenged, interfered with or threatened in any
way. No Net Name infringes, interferes with or is alleged to interfere with or infringe the
trademark, copyright or domain name of any other Person.

3.8 SOLVENCY.
(a) Seller is not now insolvent and will not be rendered insolvent by any of the Contemplated
Transactions. As used in this section. "insolvent" means that the sum of all debts and other
probable Liabilities of Seller exceeds the present fair saleable value of Seller's assets.
(b) Immediately after giving effect to the consummation of the Contemplated Transactions: (i) Seller
will be able to pay its Liabilities as they become due in the usual course of business; (ii) Seller
will not have unreasonably small capital with which to conduct its present or proposed business;
(iii) Seller will have assets (calculated at fair market value) that exceeds Liabilities; and (iv)

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taking into account all pending and threatened litigation other than the Assumed Liabilities, final
judgments against Seller in actions for money damages are not reasonably anticipated to be
rendered at a time when, or in amounts such that, Seller will be unable to satisfy any such
judgments promptly in accordance with their terms (taking into account the maximum probable
amount of such judgments in any such actions and the earliest reasonable time at which such
judgments might be rendered) as well as all other obligations of Seller. The cash available to
Seller, after taking into account all other anticipated uses of the cash, will be sufficient to pay all
such debts and judgments promptly in accordance with their terms.
3.9 DISCLOSURE.
(a) No representation or warranty or other statement made by Seller or either Shareholder in this
Agreement. the Disclosure Letter, any supplement to the Disclosure Letter, or otherwise in
connection with the Contemplated Transactions contains any untrue statement or omits to state a
material fact necessary to make any of them, in light of the circumstances in which it is made, not
misleading.
(b) There does not now exist any event, condition or other matter, or any series of events, conditions
or other matters individually or in the aggregate, adversely affecting Seller's assets, business,
prospects, Financial condition or results of its operations that has not been specifically disclosed
to Buyer in writing as of the date of this Agreement.
3.10 DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN SECTION 3 AND
ITS SUBPARAGRAPHS OR ELSEWHERE IN THIS AGREEMENT, THE ASSETS ARE
PROVIDED "AS IS" AND WITHOUT WARRANTY, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR QUIET ENJOYMENT. SELLER DOES NOT
WARRANT THAT THE ASSETS WILL MEET THE REQUIREMENTS OF BUYER AND(OR
ANY END-USER. THE WARRANTIES SET FORTH ABOVE DO NOT EXTEND TO
MODIFICATIONS OF THE ASSETS MADE BY BUYER OR A THIRD PARTY OR TO
APPLICATIONS CREATED BY BUYER OR A THIRD PARTY THROUGH USE OF THE
ASSETS.
4.0 REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 ORGANIZATION AND GOOD STANDING. Buyer is a Texas limited liability company. validly
existing and in good standing under the laws of the State of Texas, with full power and
authority to conduct its business as it is now conducted.
4.2 AUTHORITY; No CONFLICT.
(a) This Agreement constitutes the legal, valid and binding obligation of Buyer. enforceable
against Buyer in accordance with its terms. On the execution and delivery by Buyer of
the Assignment and Assumption Agreement and any other agreement contemplated
herein (collectively. "Buyer's Closing Documents"), each of the Buyer's Closing
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Documents will constitute the legal. valid and binding obligation of Buyer. enforceable
against Buyer in accordance with its respective terms. Buyer has the absolute and
unrestricted right, power and authority to execute and deliver this Agreement and the
Buyer's Closing Documents and to perform its obligations under this Agreement and the
Buyer's Closing Documents. and such action has been duly authorized by all necessary
corporate action.
(b) Neither the execution and delivery of this Agreement by Buyer nor the consummation or
performance of any of the Contemplated Transactions by Buyer will give any Person the
right to prevent, delay or otherwise interfere with any of the Contemplated Transactions
pursuant to:
(i)

any provision of Buyer's Governing Documents;

(ii)

any resolution by the Managers or the members of Buyer:

(iii)

any Legal Requirement or Order to which Buyer may be subject; or,

(iv)

any Contract to which Buyer is a party or by which Buyer may be bound.

4.3 CERTAIN PROCEEDINGS. There is no pending Proceeding that has been commenced
against Buyer and that challenges, or may have the effect of preventing. delaying,
making illegal or otherwise interfering with, any of the Contemplated Transactions. To
Buyer's Knowledge, no such Proceeding has been threatened.
5.0 TERMINATION
5.1 TERMINATION EVENTS. By notice given prior to or at the Closing, subject to Section 5.2,
this Agreement may be terminated as follows:
(a) by Buyer if a material Beach of any provision of this Agreement has been committed by
Seller or Shareholders and such Breach has not been waived by Buyer;
(b) by Seller if a material Beach of any provision of this Agreement has been committed by
Buyer and such Breach has not been waived by Seller or Shareholders; and.
(c) by mutual consent of Buyer and Seller.
5.2 EFFECT OF TERtvtim-rioN. Each Party's rights of termination under Section 5.1 are in
addition to any other rights it may have under this Agreement or otherwise, and the
exercise of such right of termination will not be an election of remedies. If this
Agreement is terminated pursuant to Section 5.1. all obligations of the Parties under this
Agreement will terminate, except that the obligations of the Parties in this Section 5.2 and
Sections 7 & 8 will survive, provided, however, that, if this Agreement is terminated
because of Breach of this Agreement by the non-terminating party or because one or
more of the conditions of terminating party's obligations under this Agreement is not
satisfied as a result of the Party's failure to comply with its obligations under this
Agreement, the terminating Party's right to pursue all legal remedies will survive such
termination unimpaired.
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6.0 ADDITIONAL COVENANTS
6.1 PAYMENT OF ALL TAXES RESULTING FROM SALE OF ASSF rs BY SELLER. Seller will pay in a
timely manner all Taxes resulting from or payable in connection with the sale of the
Assets pursuant to this Agreement, regardless of the Person whom such Taxes are
imposed by Legal Requirements, provided that Seiler shall not be liable for any Taxes
owed by Buyer.
6.2 ASSISTANCE IN PROCEEDINGS. Seller will cooperate with Buyer and its counsel in
connection with any Proceeding or relating to (a) any Contemplated Transaction or (b)
any action, activity, circumstance, condition, conduct, event, fact, failure to act, incident,
occurrence, plan, practice. situation, status or transaction involving the Assets.
6.3 NON-SOLICITATION, AND NON-DISPARAGEMENT.
(a) Non-Solicitation. For a period of three (3) years after the Closing Dale. Seller shall not
directly or indirectly:
(i)

cause, induce or attempt to cause or induce any customer, supplier, licensee,
licensor, franchisee, employee, consultant or other business relation of Seller on
the Closing Date to cease doing business with Buyer or in any way to interfere
with its relationship with Buyer; or.

(ii)

hire, retain, or attempt to hire or retain any employee or independent contractor of
Buyer or in any way interfere with the relationship between Buyer and any of its
employees or independent contractors.

(b) Non-disparagement. After the Closing Date. Seller will not disparage Buyer. Publisher,
or any of Buyer's members, directors. officers, partners. employees, or agents.
(c) Modification of Covenant. If a final judgment of a court or tribunal of competent
jurisdiction determines that any term or provision contained this Additional Covenant's
Section is invalid or unenforceable, then the Parties agree that the court or tribunal will
have the power to reduce the scope, duration. or geographical area of the term or
provision, to delete specific words or phrases or to replace any invalid or unenforceable
term or provision with a term or provision that is valid and enforceable and that comes
the closest to expressing the intentions of the invalid or unenforceable term or provision.
This Additional Covenant's Section is reasonable and necessary to protect and preserve
Buyer's legitimate business interests and the value of the Assets and to prevent any unfair
advantage conferred on Seller.
6.4 CUSTOMER AND OTHER BUSINESS RELATIONSIIIPS. After the Closing, Seller will
cooperate with Buyer in its efforts to continue and maintain for the benefit of Buyer those
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business relationships existing prior to the Closing and relating to the business operated
by the Buyer after the Closing. Seller will refer to Buyer all inquiries relating to the
Assets. Neither Seller nor any of its officers, members, employees, agents, or
shareholders shall take any action that would tend to diminish the value of the Assets
after the Closing or that would interfere with the business of Buyer to be engaged in after
the Closing, including disparaging the name of the Buyer or Publisher.
6.5 FURTHER ASSURANCES. The Parties shall cooperate reasonably with each other and with
their respective Representatives in connection with any steps required to be taken as part
of their obligations under this Agreement. and shall (a) furnish upon request to each other
such further information; (b) execute and deliver to each other such other documents;
and, (c) do such other acts and things. all as the other Party may reasonably request for
the purpose of carrying out the intent of this Agreement and the Contemplated
Transactions.
6.6 AUDIT RIGHTS. Each Party will have the right, not more than once during any calendar
year, to engage an independent auditor to audit those of the other Party's records
reasonably necessary to verify the Royalties due. Such audits will be conducted upon
reasonable advance written notice, with at least ten (10) business days advance notice.
Such audits will be conducted at the other Party's headquarters or the place where such
records are kept in the normal course of business, during normal business hours, and shall
not be disruptive of the other Party's work. Such audit shall be conducted on behalf of a
Party by its certified independent public accountant. The auditing Party will pay its costs
for such audits and related activities. However, in the event that such audit reveals
underpayment by the other Party in excess of five percent (5%) over the entire period of
the audit, the Party shall reimburse the auditing Party its reasonable out-of-pocket audit
costs, and shall promptly pay such underpayment to the auditing Party.
6.7 CREDITS. Buyer shall accord credit to Seller as creators in the Duke Nukem character
and story concept in all games and works based upon the Duke IP in a manner consistent
with industry custom and practice.
7.0 INDEMNIFICATION; REMEDIES
7.1 All representations. warranties, covenants and obligations in this Agreement and any
other certificate or document delivered pursuant or ancillary to this Agreement shall
survive the Closing and the consummation of the Contemplated Transactions, subject to
Section 7.7. The right to indemnification. reimbursement or other remedy based upon
such representations, warranties, covenants and obligations shall not be affected by any
investigation conducted with respect to, or any Knowledge acquired (or capable of being
acquired) at any time, whether before or after the execution and delivery of this
Agreement or the Closing Date, with respect to the accuracy of inaccuracy of or
compliance with any such representation, warranty, covenant and obligation. The waiver
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of any condition based upon the accuracy of any representation or warranty, or on the
performance of or compliance with any covenant or obligation, will not affect the right to
indemnification. reimbursement or other remedy based upon such representations.
warranties, covenants and obligations.
7.2 INDEMNIFICATION AND REIMBURSEMENT BY SELLER AND SHAREHOLDERS. Seller and
each Shareholder, jointly and severally, will indemnify and hold harmless Buyer, and its
Representatives, members. and Related Persons (collectively, the "Buyer Indemnified
Persons"), and will reimburse the Buyer Indemnified Persons for any loss, liabilit>,
claim, damage, expense (including costs of investigation and defense and reasonable
attorney's fees and expenses) or diminution of value, whether or not involving a ThirdParty Claim (collectively. the "Damages"). arising from or in connection with:
(a) any Breach of any representation or warranty made by Seller or either Shareholder in this
Agreement or any other certificate, document, writing or instrument delivered by Seller
or either Shareholder pursuant to this Agreement;
(b) any Breach of any covenant or obligation of Seller or either Shareholder in this
Agreement or in any other certificate, document, writing or instrument delivered by
Seller or either Shareholder pursuant to this Agreement;
(c) any Liability arising out of the ownership or use of the Assets prior to the Closing, other
than the Assumed Liabilities;
(d) any product or component thereof manufactured by or shipped, or any services provided
by. Seller, in whole or in part. prior to the Closing Date, other than the Assumed
Liabilities; and,
(e) any Retained Liabilities.
7.3 INDEMNIFICATION AND REIMBI rRSTMI.NT BY BUYER. Except as otherwise provided in this
Agreement, Buyer will indemnify and hold harmless Seller and its Shareholders,
Representatives, and Related Persons (collectively, the "Seller Indemnified Persons"),
and will reimburse Seller Indemnified Persons for Damages arising from or in connection
with:
(a) any Breach of any representation or warranty made by Buyer in this Agreement;
(b) any Breach of any covenant or obligation of Buyer in this Agreement; and,
(c) any Assumed Liabilities.
7.4 FIRST-PARTY CLAIMS. Each Party agrees to indemnify and hold the other harmless from
and against any and all claims, damages and liabilities whatsoever, asserted by any
person or entity, resulting directly or indirectly from any breach by the first Party or any
of its respective employees or agents, of this Agreement or of any warranty.
representation, covenant or obligation contained in this Agreement. Such indemnification
shall include the payment of all reasonable attorneys' fees and other costs incurred by the
indemnified Party in defending any such claim. The indemnified Party shall inform the
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indemnifying Party in writing of any claim, demand or suit and shall fully cooperate in
the defense thereof. The indemnified Party will not agree to the settlement of any such
claim, demand or suit prior to the final judgment thereon without the consent of the
indemnifying Party, whose consent will not be unreasonably withheld.
7.5 TIIIRD-PARTY CLAIMS. Each Party agrees to indemnify, defend and hold harmless the
other, and its parent company. affiliates, shareholders, partners. officers, employees,
agents, successors and assigns, against any and all Claims based upon, relating to, or
arising out of a third party claim based upon any breach by the first Party or any of its
respective employees or agents, of this Agreement or of any warranty, representation,
covenant or obligation contained in this Agreement. Upon notice from an Indemnified
Person of any such Claim being advanced or commenced. the Indemnifying Person
agrees to adjust, settle or defend the same at its sole cost; provided, however, that no such
settlement or adjustment shall occur without the prior written consent of Indemnified
Person, such consent not to be unreasonably withheld. Each Indemnified Person shall
have the right, but not the obligation, to participate, at its own expense and by its own
counsel, in the defense of any such Claim, and, in such event, the Parties hereto shall
cooperate with each other in the defense of any such action, suit or proceeding hereunder.
7.6 (MIER CLAIMS. A claim for indemnification for any matter not involving a Third-Party
Claim may be asserted by notice to the Party from whom indemnification is sought and
shall be paid promptly after such notice.
7.7 INDEMNIFICATION IN CASE OF STRICT LIABILITY OR INDEMNITEL NEGLIGENCE. THE
INDEMNIFICATION PROVISIONS IN THIS SECTION 7 SHALL BE
ENFORCEABLE REGARDLESS OF WHETHER THE LIABILITY IS BASED UPON
PAST, PRESENT OR FUTURE ACTS, CLAIMS OR LEGAL REQUIREMENTS AND
REGARDLESS OF WHETHER ANY PERSON (INCLUDING THE PERSON FROM
WHOM INDEMNIFICATION IS SOUGHT) ALLEGES OR PROVES SOLE,
CONCURRENT, CONTRIBUTORY OR COMPARATIVE NEGLIGENCE OF THE
PERSON SEEKING INDEMNIFICATION OR THE SOLE OR CONCURRENT
STRICT LIABILITY IMPOSED UPON THE PERSON SEEKING
INDEMNIFICATION.
7.8 ASSUMED LIABILITIES.

Seller's indemnification obligations under Section 7 (and its

subparagraphs) shall not apply to any claims relating to the Assumed Liabilities.
7.9 LIMITATION OF LIABILITY. EXCEPT AS TO A PARTY'S REPRESENTATIONS,
WARRANTIES AND COVENANTS IN THE AGREEMENT, THE
CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8, AND THE

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INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 ABOVE, NO PARTY
HERETO SHALL BE LIABLE TO ANY OTHER PARTY FOR INDIRECT, SPECIAL,
INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES. INCLUDING
LOSS OF PROFITS, ARISING FROM BREACH OF CONTRACT, NEGLIGENCE,
OR ANY OTHER LEGAL GROUND OF ACTION WHATSOEVER (EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR
WHETHER SUCH DAMAGES ARE FORESEEABLE),
8.0 CONFIDENTIALITY
8.I DEFINITION OF CONFIDENTIAL INFORMATION.
(a) As used in this Article 8 the term "Confidential Information" includes any and all of the
following information of Seller. Buyer or Shareholders that has been or may hereafter be
disclosed in any form, whether in writing. orally. electronically or otherwise made
available by observation, inspection or otherwise by either party (Buyer on the one hand
or Seller and Shareholders, collectively, on the other hand) or its Representatives
(collectively. a "Disclosing Party") to the other party or its Representatives (collectively,
a "Receiving Party"):
All the information that is a trade secret under applicable trade secret or other law;
(ii)

All the information concerning product specifications, data, know-how, formulae,
compositions, processes, designs, sketches, photographs, graphs. drawings,
samples, inventions and ideas, past. current and planned research and
development, current and planned manufacturing or distribution methods and
processes, customer lists, current and anticipated customer requirements. price
lists, market studies, business plans. computer hardware. Software and computer
software and database technologies, systems, structures. and architectures:

(iii)

All information concerning the business and affairs of the Disclosing Party
(which includes historical and current financial statements, financial projections
and budgets, tax returns and accountants' materials, historical, current and
projected sales. capital spending budgets and plans, business plans, strategic
plans, marketing and advertising plans, publications, client and customer lists and
Files, contracts, the names and backgrounds of key personnel and personnel
training techniques and materials, however documented), and all information
obtained from review of the Disclosing Party's documents or property or
discussions with the Disclosing Party regardless of the form of the

(iv)

communication; and
All notes, analyses, compilations, studies, summaries and other material prepared
by the Receiving Party to the extent containing or based, in the whole or in part,
upon any information included in the foregoing.

(b) Any trade secrets of a Disclosing Party shall also be entitled to all of the protections and
benefits under applicable trade secret law and any other applicable law. If any
information that a Disclosing Party deems to be a trade secret is found by a court of
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competent jurisdiction not to be a trade secret for purposes of this Section 8, such
information shall still be considered Confidential Information of that Disclosing Party for
the purposes of this Section 8 to the extent included within the definition. In the case of
trade secrets, each of Buyer, Seller and Shareholders hereby waives any requirement that
the other party submit proof of the economic value of any trade secret post a bond or
other security.
8.2 RES1RICTED USE OF CONFIDENTIAL. INFORMATION.
(a) Each Receiving Party acknowledges the confidential and proprietary nature of the
Confidential Information of the Disclosing Party and agrees that such Confidential
information (i) shall be kept confidential by the Receiving Party; (ii) shall not be used for
any reason or purpose other than to evaluate and consummate the Contemplated
Transactions; and (iii) without limiting the foregoing, shall not be disclosed by the
Receiving Party to any Person, except in each case as otherwise expressly permitted by
the terms of this Agreement or with the prior written consent of an authorized
representative of Seller with respect to Confidential Information of Seller or Shareholders
(each, a "Seller Contact") or an authorized representative of Buyer with respect to
Confidential Information of Buyer (each, a "Buyer Contact"). Each of Buyer and Seller
and Shareholders shall disclose the Confidential Information of the other party only to its
Representatives who require such material for the purpose of evaluating the
Contemplated Transactions and are informed of Buyer, Seller or Shareholders. as the case
may be, of the obligations of this Section 8 with respect to such information. Each of
Buyer, Seller and Shareholders shall (iv) enforce the terms of this Section 8 as to its
respective Representatives; (v) take such action to the extent necessary to cause its
Representatives to comply with the terms and conditions of this Section 8; and (vi) be
responsible and liable for any breach of the provisions of this Section 8 by it or its
Representatives.
(b) Unless and until this Agreement is terminated, Seller and each Shareholder shall maintain
as confidential any Confidential Information (including for this purpose any information
of Seller or Shareholders of the type referred to in Sections 8.1(a)(i), (ii) and Oil,
whether or not disclosed to Buyer) of the Seller or Shareholders relating to any of the
Assets or the Assumed Liabilities. Notwithstanding the preceding sentence. Seller may
use any Confidential Information of Seller before the Closing in the Ordinary Course of
Business in connection with the transactions permitted by Section 5.2.
(c) From and after the Closing, the provisions of Section 8.2(a) above shall not apply to or
restrict in any manner Buyer's use of any Confidential Information of the Seller or
Shareholders relating to any of the Assets of the Assumed Liabilities.
8.3 EXCEPTIONS. Sections 8.2(a) and Oil do not apply to that part of the Confidential
Information of a Disclosing Party that a Receiving Party demonstrates (a) was, is or
becomes generally available to the public other than as a result of a breach of this Section
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or the Confidentiality Agreement by the Receiving Party or its Representatives; (b)
was or is developed by the Receiving Party independently of an without reference to any
Confidential Information of the Disclosing Party; or (c) was, is or becomes available to
the Receiving Party on a non-confidential basis from a Third Party not bound by the
confidentiality agreement or any legal. fiduciary or other obligation restricting disclosure.
Neither Seiler nor either Shareholder shall disclose any Confidential Information of
Seller or Shareholders relating to any of the Assets or the Assumed Liabilities in reliance
on the exceptions in clauses (b) or (c) above.
8.4 LEGAL. PROCEEDINGS. If a Receiving Party becomes compelled in any Proceeding or is
requested by a Governmental Body having regulatory jurisdiction over the Contemplated
Transactions to make any disclosure that is prohibited or otherwise constrained by this
Article 8, that Receiving Party shall provide the Disclosing Party with prompt notice such
compulsion or request so that it may seek an appropriate protective order or other
appropriate remedy or waive compliance with the provisions of this Article 8. in the
absence of a protective order or other remedy, the Receiving Party may disclose that
portion (and only that portion) of the Confidential Information of the Disclosing Party.
that based upon advice of the Receiving Party's counsel. the Receiving Party is legally
compelled to disclose or that had been requested by such Governmental Body, provided,
however, that the Receiving Party shall use reasonable efforts to obtain reliable assurance
that confidential treatment will be accorded by any Person to whom any Confidential
Information is so disclosed. The provisions of this Section 8.4 do not apply to any
Proceedings between the parties to this Agreement.
8.5 RE'l'URN OR DESTRUCTION OF CONFIDENTIAL INFORMATION.

If this Agreement is

terminated, each Receiving Party shall (a) destroy all Confidential Information of the
Disclosing Party prepared or generated by the Receiving Party without retaining a copy
of any such material; (b) promptly deliver to the Disclosing Party all other Confidential
Information of the Disclosing Party, together with all copies thereof, in the possession,
custody or control of the Receiving Party or. alternatively, with the written consent of a
Seller Contact or a Buyer Contact (whichever represents the Disclosing Party) destroy all
such Confidential Information; and (c) certify all such destruction in writing to the
Disclosing Party, provided, however. that the Receiving Party may retain a list that
contains general descriptions of the information it has returned or destroyed to facilitate
the resolution of any controversies after the Disclosing Party's Confidential Information
is returned.
8.6 ATTORNEY-CLIENT PRIVILEGE. The Disclosing Party is not waiving, and will not be
deemed to have waived or diminished, any of its attorney work product protections,
attorney-client privileges or similar protections and privileges as a result of disclosing its
Confidential Information (including Confidential Information related to pending or
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threatened litigation) to the Receiving Party, regardless of whether the Disclosing Party
asserted or is or may be entitled to assert, such privileges and protections. The parties (a)
share a common legal and commercial interest in all of the Disclosing Party's
Confidential Information this is subject to such privileges and protections: (b) are or may
become joint defendants in Proceedings to which the Disclosing Party's Confidential
Information covered by such protections and privileges relates; (c) intend that such
privileges and protections remain intact should either party become subject to any actual
or threatened Proceeding to which the Disclosing Party's Confidential Information
covered by such protections and privileges relates; and (d) intend that after the Closing
the Receiving Party shall admit, claim or contend, in Proceedings involving either party
or otherwise, that any Disclosing Party waived any of its attorney work-product
protections. attorney-client privileges or similar protections and privileges with respect to
any information, documents or other material not disclosed to a Receiving Party due to
the Disclosing Party disclosing Confidential Information (including Confidential
Information related to pending or threaten litigation) to the Receiving Party.
9.0 GENERAL PROVISIONS
9.1 EXPENSES, Except as otherwise provided in this Agreement. each Party to this
Agreement will bear its respective fees and expenses incurred in connection with the
preparation, negotiation, execution. and performance of this Agreement and the
Contemplated Transactions, including all fees and expenses of its Representative. If this
Agreement is terminated, the obligation of each party to pay its own fees and expenses
will be subject to any rights of such Party arising from a Breach of this Agreement by
another Party,
9.2 PUBLIC ANNOUNCEMENTS. Any public announcement, press release or similar publicity
with respect to this Agreement or the Contemplated Transactions will be issued, if at all,
at such time and in such manner as Buyer determines. Except with prior consent of
Buyer or as permitted in this Agreement. neither Seller, Shareholders nor any of their
Representatives shall disclose to any Person (a) the fact that any Confidential Information
of Seller or Shareholders has been disclosed to Buyer or its Representatives, that Buyer
or its Representatives have inspected any portion of the Confidential information of
Seller or Shareholders, that any Confidential Information of Buyer has been disclosed to
Seller, Shareholders or their Representatives or that Sell, Shareholders or their
Representatives have inspected any portion of the Confidential Information of Buyer or
(b) any information about the Contemplated Transactions, including the status of such
discussions or negotiations. the execution of any documents (including this Agreement).
9.3 NOTICES. For the purposes of this Agreement, notices and all other communications
provided for in this Agreement shall be in writing and shall be delivered by hand
delivery, facsimile with overnight confirmation, reputable overnight delivery service or
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certified mail. return receipt requested, postage prepaid. to the address of a Party as set
forth on the signature page hereof, as the same may be changed upon written notice to the
other Party.
10.0 MISCELLANEOUS
10.1 Nothing in this Agreement will be deemed to place the Parties in the relationship of
employer-employee, principal-agent, partners or joint venturers.
10.2 Each of the Parties shall perform their duties and obligations under this Agreement in
good faith. fair dealing and in accordance with prevailing industry standards.
10.3 Unless otherwise expressly set forth herein, all references to dollar or other monetary
amounts in this Agreement shall automatically be deemed to be in United States Dollar
currency.
10.4 This Agreement may he executed in one or more counterparts. each of which shall be
deemed an original and all of which together shall constitute one and the same
document.
10.5 This Agreement shall be governed by the laws of the State of Texas. USA. The Parties
agree that any dispute. or any matter or question arising from this Agreement shall be
submitted to the exclusive competence of the State of Texas or the state and federal
courts, located in Dallas County, Texas.
10.6 This Agreement supersedes all prior agreements. whether written or oral, between the
Parties with respect to its subject matter (including any letter of intent) and constitutes
(along with all other documents delivered pursuant to this Agreement) a complete and
exclusive statement of the terms of the agreement between the Parties with respect to the
subject matter. This Agreement may not be amended supplemented, or otherwise
modified except by a written agreement executed by the parties to be charged with the
amendment.
10.7 No Party may assign any of its rights or delegate any of its obligations under this
Agreement without the prior written consent of the other Party. Subject to the preceding
sentence, this Agreement will ally to, be binding in all respects upon and inure to the
benefit of the successors and permitted assigns of the Parties, and shall be binding in all
respects upon all Related Persons to such successors and assigns. Any transfer or
assignment of the Duke IP shall be subject to the covenants and obligations (including
royalty payments) set forth in this Agreement and Buyer shall require any transferee or
assignee of the Duke 1P to expressly assume all covenants and obligations (including
royalty payments) under this Agreement. Nothing expressed or referred to in this
Agreement will be construed to give any Person other than the Parties to this Agreement
any legal or equitable right, remedy, or claim under or with respect to this Agreement or
any provision of this Agreement, except such rights as shall inure to a successor or
permitted assignee pursuant to this Section.
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10.8 CoNsinticTIoN. The headings of Sections in this Agreement are provided l'or
convenience only and will riot affect its constmction or interpretation.
10.9 TIME OF ESSENCE. With regard to all dates and time periods set forth or referred to in
this Agreement. lime k of the essence.
IN WITNESS WHEREOF. the Parties hereto have executed this Agreement as of the day and
year first above written. This Agreement may he executed by facsimile signature.
GEARBOX, SOFrINARE. LIE

APOGEE SOF 'WARE. LT1).

By:
Name:
Name Randy PitehlOrit
. eon illex
Title: CEO of Action Entimainment. Inc.. the general Title President
gee Software",14d.
partner of
j
-7
By: _.,.("7- e, ...),
::_4;e.
.
-,c_---:-.,-! ..x.;•,':".,'"; (/
13

Name: George 'Broussard
Title: President of Action Entertainment. Inc.. the
general partner of Apogee Software. Lid.

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Exhibit 2.1 - Assets
Subject to the terms and conditions of this Agreement, Seller hereby assigns to Gearbox all of Seller's rights,
title, and interest in and to the Duke Nukem Universe and Duke Nukem Game Property (collectively, the Duke
Nukem Universe and Duke Nukem Game Property are called the "Duke IP"). but not including the assets
identified in Exhibit 2.2 hereto.
I. "Duke Nukem Universe" - shall mean all elements and aspects utilized, incorporated in. embodied in
or otherwise relating to the series of Duke Nukem games created by or for Seller up to the Closing
Date, including the Duke Nukem Trademarks and the videogames currently titled Duke Nukem
Forever and Duke Begins; but expressly excluding the IPR set forth in Exhibit 2.2 hereto.

2.

"Duke Nukem Game Property" - shall mean the name/title of any game in the Duke Nukem Universe,
all game characters, game design documents, story lines, story themes, plots, game script/dialog,
character names and likenesses, and all trademarks and trade names directly related to the Duke
Nukem Universe; but expressly excluding the IPR set forth in Exhibit 2.2 hereto.

3.

"Duke Nukem Trademarks" - shall mean the trademarks, service marks, and trade names used in
connection with or associated with the Duke Nukem Universe, including but not limited to "Duke
Nukem," "Come Get Some," "Hail to the King Baby!," "Hail to the King," and the nuclear symbol
(that is the subject of U.S. Trademark Registration No. 2,435,065), but excluding "Apogee Software."
"3D Realms," and "3D Realms Entertainment."

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Exhibit 2.2 — Excluded Assets
The Parties agree that the Seller expressly retains all rights, title and interest in and to the Duke Nukem
Universe and Duke Nukem Game Property that were developed pre-Closing for use in connection with
motion pictures. films, movies, videos, and television shows for any medium now known or hereafter
devised, including licensing of or granting any rights for any co-sponsorship, in-product
marketing/advertising, or co-promotional deals relating thereto. The Seller, also, expressly retains rights
to create, sell, license, and distribute (i) consumer goods and sundries (other than videogames and
videogame-related products) bearing the names, characters. and themes directly relating to the motion
pictures, films, movies. videos, and television shows and are promoted in connection with such works and
(ii) books, comic books, magazines, and all other print-based media products bearing the names,
characters, and themes directly relating to such motion pictures, films, movies, videos, and television
shows and are promoted in connection with such works.

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Exhibit 2.3 — Purchase Price
The Parties agree that the Purchase Price will consist of the four numbered items below. Further, the
Parties agree that should Gearbox fail to pay the Purchase Price according to the manner described in this
Exhibit 2.3. then all aspects of the Duke IP will revert back to the Seller upon Seller's payment of the
Buy-Back amount, provided that Gearbox shall remain liable for any Advance Percentage and Royalties
due and owing to Seller up to the date of the Buy-Back transaction. The Purchase price is defined as:
1. Advance Percentage Payments
• The Buyer will pay the Seller 5% of every advance (the "Advance Percentage") that the Buyer
receives from the Publisher in order to develop a AAA-rated videogame. Please note: only for
the videogame currently titled. Duke Nukent Forever. the Seller's will receive an additional 5%
(for a total of 10%) of any further advance made by the Publisher. In the event Buyer selfpublishes a game, Seller shall receive 5% of Buyer's development budget for the game. paid in
equal installments during the game development.

However, for the first two years after the Closing, should the Advance Percentage payment not
equal or exceed the minimum guaranteed payment of $200,000 per calendar quarter (the
"Guaranteed Amount"), the Buyer will make up the difference to ensure that the Seller receives a
minimum quarterly payment equal to or greater than the Guaranteed Amount.

The quarterly payments will be made by the Buyer via wire transfer on the 5th day of the first
month of every calendar quarter after the Closing until Gearbox has paid Seller a total amount of
US$1,000,000 (one million dollars), The first payment will be due on the first calendar quarter
post-closing.

2. Royalty Payments
Buyer will pay to Seller the Royalty Rate once all advances and expenses (reasonable and ordinary) have
been recouped. The Royalty payment will be made by the Buyer via wire transfer within 30 calendar
days after receiving such monies from the Publisher or other entity. Should Buyer become a Publisher,
then the Royalty Rate will be taken out of 40% of the Net Revenues for such game.
3. Store and Warehouse ail of the Seller's Digital IP.
Additionally, the Parties agree that as a condition to the Seller entering into this Agreement, the Buyer
will use its current digital infrastructure to store and warehouse all of the Seller's digital IP plus the Duke
IP at no cost to the Seller for as long as the Buyer retains the Duke IP.
4. Restriction Using 2K Games/Take-Two Interactive as Publisher for Duke IP. The Parties
understand and agree that certain publishing agreements by either Party, or both Parties, were entered into
prior to this Agreement. The Parties agree that Buyer will adhere to these publishing agreements in
regards to 2K Games and/or Take-Two Interactive publishing the titles known as DNF and Duke Begins,
as applicable. However. Buyer is precluded from entering into any long-term (e.g., subsequent games)
publishing agreement with 2K Games or Take-Two Interactive that include terms that are inconsistent or
more restrictive than those found in Buyer's current publishing agreement with 2K Games/Take-Two
Interactive.

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Exhibit 2.4 — Assumed Liabilities

Lawsuit between Apogee Software, Ltd. and Take-Two Interactive Software, Inc.. currently pending
in the U.S. District Court for the Southern District of New York, Civil Action No. 09-CV 5054
(LAP), including all claims and counterclaims asserted therein and any other claims asserted by TakeTwo or 2K Games relating to this Asset Purchase Agreement or arising out of Seller's entry into the
Asset Purchase Agreement with Buyer (the "Litigation").

Repay loan amount ($2.9 million, plus any accrued interest) from Take-Two Interactive Software,
Inc. to Apogee Software, Ltd., as described in the paragraph 8 of the "Development and Publishing of
'Duke Begins' Videogame" Agreement. dated October 27, 2007. between Apogee Software. Ltd. and
Take-Two Interactive Software. Inc. and 2K Games, Inc. for the development of the videogame titled
"Duke Begins.-

Indemnify Seller from any loss. liability. claim, damage. costs, and expense (including reasonable
attorneys' fees) arising from or relating to the Litigation after the Closing Date.

Have the security interest and any related UCC liens removed by Take-Two Software, Inc. from the
Duke IP.


Have the Litigation dismissed (with prejudice if possible).
Pay Seller's reasonable and necessary legal fees for Pat Heptig and local New York counsel with the
total amount of legal fees paid under this Agreement will not exceed $90,000 (ninety thousand
dollars), to be paid to Heptig Law Group in installments: $40,000 (forty thousand dollars) at the
Closing Date, $30,000 (thirty thousand dollars) paid one calendar month after the Closing Date. and
the final remaining amount no later than three calendar months after the Closing Date.

All together, the successful completion and termination of the Assumed Liabilities are the "Publisher's
Settlement"

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Exhibit 2.7(a)(i) — Assignment and Assumption Agreement
The Assignment and Assumption Agreement (the "Assignment and Assumption Agreement")
is made and entered into as of February 2, 2010, by and among Apogee Software, Ltd., a Texas
limited partnership ("Assignor"), and Gearbox Software, L.L.C., a Texas limited liability company
("Assignee").
WHEREAS, Assignor and Assignee are parties to that certain Asset Purchase Agreement
dated as of February 2, 2010 (the "Purchase Agreement"), pursuant to which Assignee has
purchase a large portion of the assets of the Assignor; and
WHEREAS, pursuant to the Purchase Agreement, Assignor has agreed to assign certain
rights and agreements to Assignee, and Assignee has agreed to assume certain obligations of
Assignor, as set forth herein, and this Assignment and Assumption Agreement is contemplated by
Section 2.7(a)(i) of the Purchase Agreement;
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt, adequacy and legal
sufficiency of which are hereby acknowledged, the Parties do hereby agree as follows:
1. Capitalized Terms. Capitalized terms used but not defined herein shall have the meanings for
such terms that are set forth in the Purchase Agreement.
2. Assignment and Assumption. Effective as of
.m.
time) on February 2,
2010 (the "Effective Time"), Assignor hereby assigns, sells, transfers, and sets over (collectively,
the "Assignment") to Assignee all, except for that certain agreement between Apogee Software,
Ltd. And Triptych Games, LLC, dated July 8, 2009, of Assignor's right, title, benefit, privileges,
and interest in and to, and all of Assignor's burdens, obligations, and liabilities in connection
with, the Duke IP, and the Assumed Liabilities. Assignee hereby accepts the Assignment and
assumes and agrees to observe arid perform all of the duties, obligations, terms, provisions and
covenants, and to pay and discharge all of the liabilities of Assignor to be observed, performed,
paid or discharged from and after the Closing, in connection with the Assumed Liabilities.
Assignee assumes neither Retained Liabilities nor Excluded Assets, and the Parties hereto
agree that all such Retained Liabilities and Excluded Assets shall remain the sole responsibility
of Assignor.
3. Terms of the Purchase Agreement. The terms of the Purchase Agreement, including but not
limited to Assignor's representations, warranties, covenants, agreements, and indemnities
relation to the Duke IP and Assumed Liabilities, are incorporated herein by this reference.
Assignor acknowledges and agrees that the representations, warranties, covenants,
agreements, and indemnities contained in the Purchase Agreement shall not be superseded
hereby but shall remain in full force and effect to the full extent provided therein. In the event of
any conflict or inconsistency between the terms of the Purchase Agreement and the terms
hereof, the terms of the Purchase Agreement shall govern.
4. Further Actions. Each of the Parties hereto covenants and agrees, at its own expense, to
execute and deliver, at the request of the other Party hereto, such further instruments of transfer
and assignment and to take such other action as such other party may reasonably request to
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more effectively consummate the assignments and assumptions contemplated by this
Assignment and Assumption Agreement.
5. Expenses. Except as otherwise provided in this Agreement, each Party to this Agreement will
bear its respective fees and expenses incurred in connection with the preparation, negotiation.
execution, and performance of this Agreement and the Contemplated Transactions, including all
fees and expenses of its Representatives. If this Agreement is terminated, the obligation of each
Party to pay its own fees and expenses will be subject to any rights of such Party arising from a
Breach of this Agreement by another Party.
6. Public Announcements. Any public announcement, press release or similar publicity with
respect to this Agreement or the Contemplated Transactions will be issued, if at all, at such time
and in such manner as Buyer determines. Except with prior consent of Buyer or as permitted in
this Agreement, neither Seller, Shareholders nor any of their Representatives shall disclose to
any Person (a) the fact that any Confidential Information of Seller or Shareholders has been
disclosed to Buyer or its Representatives, that Buyer or its Representatives have inspected any
portion of the Confidential Information of Seller or Shareholders, that any Confidential
Information of Buyer has been disclosed to Seller, Shareholders or their Representatives or that
Sell, Shareholders or their Representatives have inspected any portion of the Confidential
Information of Buyer or (b) any information about the Contemplated Transactions, including the
status of such discussions or negotiations, the execution of any documents (including this
Agreement).
7. Notices. For the purposes of this Agreement, notices and all other communications provided for
in this Agreement shall be in writing and shall be delivered by hand delivery, facsimile with
overnight confirmation, reputable overnight delivery service or certified mail, return receipt
requested, postage prepaid, to the address of a Party as set forth on the signature page hereof,
as the same may be changed upon written notice to the other Party.
8. Miscellaneous
a. Nothing in this Agreement will be deemed to place the Parties in the relationship of
employer-employee, principal-agent, partners or joint venturers.
b. Each of the Parties shall perform their duties and obligations under this Agreement in good
faith, fair dealing and in accordance with prevailing industry standards.
c. Unless otherwise expressly set forth herein, all references to dollar or other monetary
amounts in this Agreement shalt automatically be deemed to be in United States Dollar
currency.
d. This Agreement may be executed in one or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same document.
e. This Agreement shall be governed by the laws of the State of Texas, USA. The Parties agree
that any dispute, or any matter or question arising from this Agreement shall be submitted to
the exclusive competence of the State of Texas or the state and federal courts, located in
Dallas County, Texas.

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f.

No Party may assign any of its rights or delegate any of its obligations under this Agreement
without the prior written consent of the other Party. Subject to the preceding sentence, this
Agreement will ally to, be binding in all respects upon and inure to the benefit of the
successors and permitted assigns of the Parties. Nothing expressed or referred to in this
Agreement will be construed to give any Person other than the Parties to this Agreement any
legal or equitable right, remedy, or claim under or with respect to this Agreement or any
provision of this Agreement, except such rights as shall inure to a successor or permitted
assignee pursuant to this Section.

g_ Construction. The headings of Sections in this Agreement are provided for convenience only
and will not affect its construction or interpretation.
h. Time of Essence. With regard to all dates and time periods set forth or referred to in this
Agreement, time is of the essence.

IN WITNESS WHEREOF, the parties have executed this Assignment and Assumption
Agreement as of the date first above written.

ASSIGNOR

ASSIGNEE

APOGEE SOFTWARE, LTD.

GEARBOX SOFTWARE, LLC

By

By:

Name: Scott Miller

Name: Randy Pitchford

Title: CEO of Action Entertainment, Inc., the
General partner of Apogee Software, Ltd.

Its:

Apogee Software, Ltd
1661 Northwest Hwy.
Garland, TX 75041

Gearbox Software, LLC
Attn: General Counsel
101 East Park Blvd., Ste. 1200
Plano, TX 75074

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Exhibit 2.7(a)(ii)(A) — Assignment of Copyrights

THE ASSIGNMENT OF COPYRIGHTS is made and entered into as of February
2, 2010, by and among Apogee Software, Ltd., a Texas limited partnership ("Assignor"),
and Gearbox Software, L.L.C., a Texas limited liability company ("Assignee").
RECITAL
Assignee and Assignor are parties to an Asset Purchase Agreement (the
"Agreement"), dated as written above, pursuant to which Assignor has agreed to sell to
Assignee, and Assignee has agreed to buy from Assignor, the Assets (as defined in the
Agreement), including without limitation the copyrights of the Assignor (except in
connection with the Excluded Assets). Pursuant to the Agreement, Assignor has agreed
to execute such instruments as the Assignee may reasonably request in order to more
effectively assign, transfer, grant, convey, assure and confirm to Assignee and its
successors and assigns, or to aid and assist in the collection of or reducing to
possession by the Assignee, all of such aspects.
In accordance therewith, Assignor desires to transfer and assign to Assignee,
and Assignee desires to accept the transfer and assignment of, all of Assignor's
worldwide right, title, and interest in and to all of Assignor's registered and unregistered
domestic and foreign copyrights and copyright applications, including without limitation
the copyright registrations and/or copyright applications and/or copyrights listed in
Exhibit 2.7(a)(ii)(A)(1) annexed hereto and incorporated herein by this reference,
except the Excluded Assets (all of the foregoing being referred to herein as the
"Copyrights").
NOW, THEREFORE, for and in consideration of the mutual covenants contained
herein and in the Agreement and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Assignor hereby transfers and assigns to
Assignee, and Assignee hereby accepts the transfer and assignment of, all of
Assignor's worldwide right, title, and interest in, to and under the Copyrights, and all
rights to sue for infringement of any Copyright, the same to be held and enjoyed by the
said Assignee, its successors and assigns from and after the date hereof as fully and
entirely as the same would have been held and enjoyed by the said Assignor had this
Assignment not been made.
Except to the extent that federal law preempts state law with respect to the
matters covered hereby, this Assignment of Copyrights shall be governed by and
construed in accordance with the laws of the State of Texas without regard to the
principles of conflicts of laws thereunder.

GBX-APOGEE APA (FINAL 020210)

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Proprietary & Confidential

IN WITNESS WHEREOF, the Assignor has caused its duly authorized officer to
execute this Assignment as of the date first written above.

APOGEE SOFTWARE, LTD.
By:
Name:
Tale'

Slate of

Texas

County of

Dallas

) ss:

On the
day of February 2010, before me,
personally appeared
of
Apogee Software, Ltd., personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity and that by his signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
Witness my hand and official seal.

[SEAL]
Notary Public

GBX-APOGEE APA (FINAL 0202101

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Proprietary & Confidential

Exhibit 2.7(a)(ii)(AX1) — Duke Nukem Copyrights
All of the Duke IP Copyrights, registered and unregistered, transferred as a result of this Agreement are
provide below:

Duke Nukem Forever (in development by 3D Realms)
Duke Begins (in development by Gearbox)

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Proprietary & Confidential

Exhibit 2.7(a)(ii)(B) — Assignmeni of Patents
NONE

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Exhibit 2.7(a)(ii)(B)(1)— Duke Nukcm Patents
All of the Duke IP Patents, registered and applied, transferred as a result of this Agreement are provide
below:
NONE

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Proprietary & Confidential

Exhibit 2.7(a)(ii)(C)— Assignment of Servicemarks and Trademarks

THE ASSIGNMENT OF SERVICE MARKS AND TRADEMARKS is made and
entered into as of February 2, 2010, by and among Apogee Software, Ltd., a Texas
limited partnership ("Assignor"), and Gearbox Software, L.L.C., a Texas limited liability
company ("Assignee").
RECITAL
Assignee and Assignor are parties to an Asset Purchase Agreement (the
"Agreement"), dated as written above, pursuant to which Assignor has agreed to sell to
Assignee and Assignee has agreed to buy from Assignor the Assets (as defined in the
Agreement), including without limitation the servicemarks, trademarks and trade names
of Assignor. Pursuant to the Agreement, Assignor has agreed to execute such
instruments as the Assignee may reasonably request in order to more effectively
assign, transfer, grant, convey, assure and confirm to Assignee and its successors and
assigns, or to aid and assist in the collection of or reducing to possession by the
Assignee of, all of such assets.
In accordance therewith, Assignor desires to transfer and assign to Assignee,
and Assignee desires to accept the transfer and assignment of, all of Assignor's
worldwide right, title and interest in, to and under Assignor's registered and unregistered
domestic and foreign servicemarks, trademarks, trademark applications and trade
names, including without limitation the servicemarks, trademarks, servicemark and
trademark applications and trade names listed on Exhibit 2.7(a)(ii)(C)(1) annexed
hereto and incorporated herein by reference (all of the foregoing being referred to
herein as the "Marks").
NOW, THEREFORE, Assignor, for and in exchange for the payment of the
purchase price set forth in the Agreement, the receipt of which is hereby acknowledged,
does hereby transfer and assign to Assignee, and Assignee hereby accepts the transfer
and assignment of, all of Assignor's worldwide right, title and interest in, to and under
the Marks, together with the goodwill of the business associated therewith and which is
symbolized thereby, all right to sue for infringement of any Mark, whither arising prior to
or subsequent to the date of this Assignment of Servicemarks and Trademarks, and any
and all renewals and extensions thereof that may hereafter be secured under the laws
now or hereafter in effect in the United States, Canada and in any other jurisdiction, the
same to be held arid enjoyed by the said Assignee. its successors and assigns form
and after the date hereof as fully and entirely as the same would have been held and
enjoyed by the said Assignor had this Assignment of Servicemarks and Trademarks not
been made,

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Proprietary & Confidential

Except to the extent that federal law preempts state law with respect to the
matters covered hereby, this Assignment of Servicemarks and Trademarks shall be
governed by and construed in accordance with the laws of the State of Texas without
giving effect to the principles of conflicts of laws thereof.
IN WITNESS WHEREOF, Assignor has caused its duly authorized officer to
execute this Assignment of Servicemarks and Trademarks as of the date first above
written.
APOGEE SOFTWARE, LTD.
By:
Name: Scott Miller
Title: CEO of Action Entertainment,
Inc., the general partner of Apogee
Software, Ltd.

State of

Texas

County of

Dallas

) ss:

day of February 2010, before rne,
On the
of
personally appeared
Apogee Software, Ltd., personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity and that by his signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
Witness my hand and official seal.

[SEAL]
Notary Public

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Exhibit 2.7(a)(ii)(C)(1)— Duke Nukem Trademarks and Servicemarks
All of the Duke IP Trademarks and Servicemarks, registered and unregistered, transferred as a result of
this Agreement are provide below:
Mark

Reg. No.

Issue Date

Country

DUKE NUKEM

2,578,916

June 11, 2002

U.S.

HAIL TO THE KING

2,596,829

July 23, 2002

U.S.

[Nuclear Symbol]

2,435,065

March 13, 2001

U.S.

HAIL TO THE KING

2,173,391

October 18, 2002

EU

HAIL TO THE KING

TMA648429

September 19, 2005

Canada

HAIL TO THE KING

870189

January 9, 2002

Australia

COME GET SOME

2,436,890

March 20, 2001

U.S.

(Cancelled under
section 8 on
12/22/07)
HAIL TO THE KING BABY

2,647,969

November 12, 2002

U.S.

(Cancelled under
section 8 on 6/20/09)

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Exhibit 2.8 - Buy-Back of Duke IP
The Parties agree that the Seller may repurchase the Duke 11" at a price equal to the Buy-Back.
The "Buy-Back- is defined as the sum of the following;

The Purchase Price (paid to-date of the Closing of the Buy-Back); plus,

Publisher Settlement: plus.

All reasonable and ordinary expenses paid by GBX (or its agents) for development of the
Duke [P. to the extent not recouped from game or other Duke IP exploitation revenues; plus,

100% of the Royalties created from the Closing to the date of the Buy-Back on the last three
AAA-rated game releases. Until there have been three AAA-rated game releases postClosing, the Parties will use the weighting of 3 times first release; when there has been 2
releases the Parties will combine those and, then, multiply by 1.5 to reach the amount for this
bullet-item.

"Buy-Back Depreciation": Should there ever be a continuous 24-calendar month period where
the Seller receives less than US$175,000 (one hundred seventy live thousand dollars) per year
(regardless of' form), the Seller may deduct 5% from the Buy-Back. After this deduction, should
the Seller continue to receive less than US$175,000 (one hundred seventy five thousand dollars)
(regardless of form) within the subsequent 12-month period, the Seller may deduct another 5%
from the Buy-Back — continual drops of 5% as described in this paragraph will accrue every
subsequent 12-calendar months for as long as the Seller receives less than US$175,000 (one
hundred seventy five thousand dollars) in payments per calendar year. However, should a
deduction in Buy-Back take place, the Buyer may earn an increase to the percentages to its BuyBack by launching additional AAA-rated videogames. as contemplated herein. The maximum
amount of decay possible is capped at 25% from the highest percentage attained by the Buyer.
If Seller has received $20 million in royalties under this Agreement, then the Buy-Back
Depreciation provision shall not be in effect. For any year in which Seller has received at least
$5 million in royalties during that calendar year under this Agreement, then the minimum royalty
thresholds in the Buy-Back Depreciation provision shall not apply for the following 36 calendar
months. For any year in which Seller has received less than $5 million but at least $1 million in
royalties during that calendar year under this Agreement. then the minimum royalty thresholds in
the Buy-Back Depreciation provision shall not apply for the following 12 calendar months.

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Exhibit 2.9 — Sale of Duke IP to a Third-Party
In making this Agreement, the Parties contemplate that the Duke IP may be resold at some uncertain time in
the future. Tice Parties agree that both the Seller and the Buyer will have created value in the Duke 1P; and,
therefore, both Parties should share in the proceeds from such sale, To that end, the Parties contemplate two
scenarios as to how the Duke 1P may be resold after Closing.
I. Duke IP Sold Without Buyer's Approval
The greater of the Vesting Schedule (defined below) or the Buy-Back Provision (as defined in Exhibit
2.8).
Vesting Schedule (for all percentages shown below, the gross sales price will be used) is defined as
the sum of the following:

Publisher Settlement (420%)

Launch of DNF (+5%)

Launch of DNB (+5%)

Launch of any additional AAA-rated videogames using the Duke IP (+5')/e)

Note: The Vesting Schedule will not cap at a percentage of the gross sales price of the Duke IP. And.
the Parties agree that the Seller will notify the Buyer with the written notice to the Buyer's General
Counsel that it has decided to sell the Duke IP from the Buyer to a Third-Party. Such Notice must
take place no later than 30-business days prior to any substantial negotiation between the Seller and
any Third-Party - if the required Notice, as described herein, is not presented to the Buyer within the
time specified, then an additional 5% of the purchase price will be awarded to the Buyer. Buyer's
reasons for withholding approval of the sale shall be made in good faith with substantive business
reason.
II. Duke IP Sold With Buyer's Approval
The greater of the Vesting Schedule (defined below) or the Buy-Back Provision (as defined in Exhibit
2.8).
Vesting Schedule (for all percentages shown below, the gross sales price will be used) is defined as
the sum of the following:

Publisher Settlement (+20%)

Launch of DNF (+5%)

Launch of DNB (+5%)

Launch of any additional AAA-rated videogames using the Duke IP (+5%)

Note: The Vesting Schedule will cap at 50% of the gross sales price of the Duke IP. And, the Parties
agree that the Seller will notify the Buyer with the written notice to the Buyer's General Counsel that
it has decided to sell the Duke IP from the Buyer to a Third-Party, Such Notice must take place no
later than 30-business days prior to any substantial negotiation between the Seller and any Third-Party
- if the required Notice, as described herein. is not presented to the Buyer within the time specified,
then an additional 5% of the purchase price will be awarded to the Buyer.

-Vesting Depreciation": Regardless of which of the two methods of IP Sale are used, should there ever be a
continuous 24-calendar month period where the Seller receives less than USSI 75.000 (one hundred seventy

GBX-APOGEE APA (FINAL 020210)

45

Proprietary & Confidential

five thousand dollars) per year (regardless of form), the Seller may deduct 5% from the Vesting Schedule, as
described above. After this deduction, should the Seller continue to receive less than US$175,000 (one
hundred seventy five thousand dollars) (regardless of form) within the subsequent 12-month period, the Seller
may deduct another 5% from the Vesting Schedule - continual drops of 5% as described in this paragraph will
accrue every subsequent 12-calendar months for as long as the Seller receives less than US$175,000 (one
hundred seventy five thousand dollars) in payments per calendar year. However, should a deduction in
Vesting Schedule take place, the Buyer may earn an increase to the percentages to its Vesting Schedule by
launching additional AAA-rated videogames, as contemplated herein. The maximum amount of decay
possible is capped at 25% from the highest percentage attained by the Buyer.
If Seller has received $20 million in royalties under this Agreement, then the Vesting
Depreciation provision shall not be in effect. For any year in which Seller has received at least $5 million
in royalties during that calendar year under this Agreement. then the minimum royalty thresholds in the
Vesting Depreciation provision shall not apply for the following 36 calendar months. For any year in
which Seller has received less than $5 million but at least $ I million in royalties during that calendar year
under this Agreement, then the minimum royalty thresholds in the Vesting Depreciation provision shall
not apply for the following 12 calendar months.
III.

Duke IP Sale By Buyer
The Parties agree that Buyer will notify Seller with written notice to Seller and Seller's
A.
Counsel that Buyer has decided to sell the Duke IP from the Buyer to a Third-Party. Such Notice
must take place no later than 30-business days prior to any substantial negotiation between the
Buyer and any Third-Party.
During the first twelve (12) months after the Effective Date of this Agreement, Buyer
B.
shall not sell or transfer the Duke IP to a Third-Party without Seller's prior approval.

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Proprietary & Confidential

Exhibit 2.10 — Development of Duke Nukem Forever

The Parties agree that the AAA-rated videogame, titled Duke Nukem Forever ("DNF"), will be
completed on the PC and developed for the console according to the following rules:

Buyer will conduct all negotiations with Publisher as of the date of Closing — said

Royalties on DNF will be split from the royalties paid after all advances have been
recouped by the Publisher and all reasonable and ordinary expenses have been recouped

negotiations will include a new advance to cover the console port, marketing, etc:

by Buyer, as follows:

o

PC — Seller (60%), Buyer (40% - to be split with Developer under a separate
agreement)
Console — Seller (30%), Buyer (70% - to be split with Developer under a separate
agreement)

Notes:
1. With the change of ownership of the Duke IP, there may be a new Development Agreement
between Publisher and Buyer that will establish the advances for the ports, as well as any other
issues that may remain. Additionally, there will be a new Development Agreement between
Buyer and Developer.
2. Should the retail sales of DNF not reach the Minimum Threshold, then the Parties agree that
the Walk-Away Provision will start. The Minimum Threshold is defined as DNF selling eight
hundred thousand (800,000) units within one-year of launch. The "Walk-Away Provision" is
defined as Seller shall be entitled to purchase the Duke IP For $10,000 (Ten Thousand Dollars),
but Buyer shall remain liable for the Assumed Liabilities, with the exception that the $90,000
paid to Heptig Law Group shall be refunded to Buyer. The Sellers shall be entitled to keep all
payments made by the Buyers and in the Seller's possession.

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Proprietary & Confidential

Exhibit 3.6 — List of All Contracts and Agreements Involving Duke Nukem FP Assets
All of the contracts and agreements involving the Duke Nukem IP Assets are provide below:
Title
Letter of Intent - Duke Nukem

Parties

Date

GT Interactive Software Corp and Apogee Software, Ltd.

02/10/97

GT Interactive Software Corp and Apogee Software, Ltd.

03/12/97

Four/Prey
Amendment #3 (amends agt of
5/14/96, as amended 12/19/96) —
Prey, Shadow Warrior, Blood, Duke
Nukem 3D, Duke Nukem Forever
Amendment (amends agt of 5/14/96

GT Interactive Software Corp and Apogee Software, Ltd.

re Duke Nukem: Time to Kill

Sent by J. Krane to
S. Miller on
3/27/98

Duke Nukem Movie Amendment

GT Interactive Software Corp and Apogee Software, Ltd.

02/16/98

Heads of Agreement

Take-Two Interactive Software, Inc., Gathering of

04/26/99

Developers, Inc., Apogee Software, Ltd. d/b/a 3D Realms
Amendment: Duke Nukem: Time to

GT Interactive Software Corp and Apogee Software, Ltd.

05/19/99

Development and Publishing

Take-Two Interactive Software, Inc., Gathering of

11/01/99

Agreement

Developers I, Ltd., Apogee Software, Ltd. d/b/a 3D

Kill 2

Realms, and
N-Space, Inc.
Amendment to 11/01/99

Take-Two Interactive Software, Inc., Gathering of

Development and Publishing

Developers I, Ltd., Apogee Software, Ltd. d/b/a 3D

Agreement

Realms, and

01/24/2000

N-Space, Inc.
Web Corp License Agreement

Apogee Software, .Ltd. d/b/a 3D Realms Entertainment

11/12/2001

and World Entertainment Broadcasting Corporation, LLC
License Agreement
License Agreement

3D Realms Entertainment and BradyGAMES

10/11/2000

Apogee Software, Ltd. And Take-Two Interactive

12/00/2000

Software, Inc.

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Proprietary & Confidential

Amendment (amends agt of

Infogames, Inc. and Apogee Software, Ltd.

12/01/2000

License Agreement w/r/t Duke

Apogee Software, Ltd. And Take-Two Interactive

12/_]/2000

Nukem Forever and Duke Movie

Software, Inc.

5/14/96) w/r/t Duke Nukem 3D,
Duke Nukem Forever ("Duke 4"),
Duke Nukem: Total Meltdown and
Duke Nukem 3D N64

Games
Duke Nukem — Option/

Dimension Films, division of Miramax Film Corp. and

12/04/2000

Apogee Software, Ltd. d/b/a 3-D Realms Entertainment
Acquisition Agreement
First Amendment to Web Corp

Apogee Software, .Ltd. d/b/a 3D Realms Entertainment

License Agreement

and World Entertainment Broadcasting Corporation, LLC

Letter Agreement w/r/t Duke

Take-Two Interactive Software, Inc. and Apogee

Nukem 3D

Software, Ltd. d/b/a 3D Realms Entertainment

10/25/2001

01/14/2002

10/05/2002

Extension Option to 4/30/2003

Dimension Films, division of Miramax Film Corp. and

(Duke Nukem Movie Agreement)

Apogee Software, Ltd. d/b/a 3-D Realms Entertainment

Letter Agreement (w/r/t Prey,

GT Interactive Software Corp and Apogee Software, Ltd.

05/14/1996

Apogee Software, Ltd. and GT Interactive Software Corp.

12/06/96

Apogee Software, Ltd. and GT Interactive Software Corp.

12/19/96

GT Interactive Software Corp and Apogee Software, Ltd.

03/12/97

Shadow Warrior, Blood, Duke
Nukem 3D and Duke Nukem Forever
("Duke 4")
Amendment to 5/14/96 Agreement
(w/r/t Prey, Shadow Warrior, Blood,
Duke Nukem 3D and Duke Nukem
Forever
Amendment (w/r/t Prey, Shadow
Warrior, Blood, Duke Nukem 3D and
Duke Nukem Forever)
Amendment 1t3 (amends agt of
5/14/96, as amended 12/19/96) —
Prey, Shadow Warrior, Blood, Duke
Nukem 3D, Duke Nukem Forever)

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Agreement re Sega Master System

GT Interactive Software and Apogee Software, Ltd.

03/21/97

GT Interactive Software and Apogee Software, Ltd.

02/16/98

GT Interactive Software and Apogee Software, Ltd.

09/16/98

GT Interactive Software Corp. and Apogee Software, Ltd.

05/19/99

GT Interactive Software Corp. and Apogee Software, Ltd.

11/23/99

Amendment: Duke Nukem: Planet of

FT Interactive Software Corp, Apogee Software, Ltd. and

05/15/2000

the Babes Hint Book/Strategy Guide

N-Space, Inc.

Threshold Entertainment Intellectual

Threshold Entertainment, Inc. and GT Interactive

01/12/98

Threshold Entertainment, Inc. and GT Interactive

10/28/99

Apogee Software, Ltd. and Formgen, Inc.

06/28/96

Apogee Software, Ltd. and Formgen, Inc.

08/17/94

Apogee Software, Ltd. and Formgen, Inc.

08/17/94

Apogee Software, Ltd. and Formgen, Inc.

10/13/96

Apogee Software, Ltd. and Formgen, Inc.

12/06/96

w/r/t Console Version of Duke
Nukem 3D
Amendment to 5/14/96 agt w/r/t
Duke 3D, Duke Nukem: A Time to
Kill; Prey and Shadow Warrior
Amendment to 5/14/96 agt w/r/t
Duke 3D, Duke Nukem: A Time to
Kill; Prey and Shadow Warrior
Amendment: Duke Nukem: Time to
Kill 2
Amendment to 5/15/96 Agreement
w/r/t Duke Nukem Forever

Property Agreement
Amendment Agreement (amends
1/12/98 Agt)
License, Marketing & Distribution
Agreement
License, Marketing & Distribution
Agreement for Duke Nukem 3D
License, Marketing & Distribution
Agreement for Shadow Warrior
Amendment to 6/28/96 Agt
between Apogee Software, Ltd. and
Formgen, Inc. w/r/t Duke Nukem 3D,
Blood and Shadow Warrior
Amendment to 6/28/96 Aft w/r/t
Duke Nukem 3D, Blood and Shadow
Warrior

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Proprietary & Confidential

License Agreement

Apogee Software, Ltd. and Monolith Productions, Inc.

01/15/97

Letter terminating the Formgen
Agreement (6/26/96) and the GT
Agreement (5/14/96) w/r/t Blood
Royalty Statements Amendment

GT Interactive Software and Apogee Software, Ltd.

02/26/97

FormGen, Inc. and Apogee Software, Ltd.

03/24/97

Apogee Software, Ltd. and FormGen

10/14/97

Apogee Software, Ltd. and FormGen

02/26/98

Apogee Software, Ltd. and FormGen

02/26/98

Apogee Software, Ltd. and GT Interactive

07/24/96

FormGen, Inc., Apogee Software, Ltd., the WizardWorks

07/28/96

Amendment Agreement (amends
6/28/96 Agt between Apogee and
FormGen w/r/r Duke Nukem 3D

Atomic Edition)

Amendment Agreement
(amends 6/28/96 Agt between
Apogee and FormGen w/rlr Duke
Nukem 3D Atomic Edition and
Shadow Warrior)
Amendment Agreement
(amends 6/28/96 Agt between

Apogee and FormGen w/r/r Duke
Nukem 3D Atomic Edition and
Shadow Warrior)
Letter seeking approval to have
product featured on GT's 1-900
hint line (w/r/t Duke Nukem 3D,
Duke Nukem Forever. Prey.
Shadow Warrior and Blood)
License Agreement

Group and GT Interactive Software Corp.
License Agreement

FormGen, Inc., Apogee Software, Ltd., The WizardWorks

02/12/97

Group and GT Interactive
Letter seeking approval to have
product featured on GT's 1-900

hint line (w/r/t Death Rally, Duke
Nukem 3D Plutonium Edition,
Duke Nukem 3D Plutonium Add
On and Balls of Steel
Letter seeking approval to put
Duke Nukem 3D, Rise of the
Triad & Xenophage on Comp-UPrize CD-ROM
Letter of Intent w/r/t Duke

GT Interactive and Apogee Software, Ltd.

08/19/96

GT Interactive and Apogee Software, Ltd.

10/08/96

GT interactive and Apogee Software, Ltd.

02/10/97

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Nukem Four
Letter re: exercising options w/r/t
Max Payne

GT Interactive and Apogee Software, Ltd.

01/27/98

Letter re royalty payments wfr/t

GT Interactive and Apogee Software, Ltd.

05/26/99

GT Interactive and Apogee Software, Ltd.

05/05/97

Letter re: RED record album

GT Interactive and Apogee Software, Ltd.

06/01/98

Licensing Agreement

Apogee Software, Inc. and Machineworks Northwest LLC

12/15/2002

Addendum to Licensing
Agreement

Apogee Software, Ltd. and Machineworks Northwest LLC

11/17/06

Duke Mobile Rights Licensing
Agreement
Duke Trilogy Licensing
Agreement

Apogee Software, LLC and MachineWorks, LLC

05/20/2008

Apogee Software, LLC and Machine Works, LLC

05/20/2008

Licensing Agreement

Apogee Software, LLC and Apogee Software, Ltd d/b/a 3D

09/09/2008

Apogee's use of "Unreal Engine"
in developing Duke Nukem
Forever

Letter confirming conversation
with Duke Nukem 3D Penthouse
Paradise

Realms
Letter Agreement re: Developing
and Publishing Duke Begins

Apogee Software, Ltd d/b/a 3D Realms, 2K Games, Inc.

10/22/2007

and Take-Two Interactive Software, Inc.

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Exhibit 3.7(h)— Net Names
All of the Net Names (URLS) transferred as a result of this Agreement are provide below:

dukenukem.com..biz, .org, .us

dukebegins.com,

dukenukembegins.com

duke5.com.

dukenukem5.com

duke6.com.

dukenukem6.com

duke7.com,

dukenukem7.com

dukefiles.com

dukegame.com

dukenukemvengeance.com.

dukev.com,

dukenukemv.com

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gearbox
s o f t w a re

101 East Park Blvd - Suite 1200, Plano, TX 75074 – Phone: (972) 312-8202 / Fax: (972) 312-8318

Asset Purchase Agreement - Supplement
This Letter Agreement, entered into on this 2nd day of February, 2010 (the “Effective Date”), is by and between
Apogee Software, Ltd. a Texas limited partnership located at 1661 Northwest Highway, Garland, TX 75041 (the
“Seller”), and Gearbox Software, LLC, a Texas limited liability company located at 101 East Park Blvd., Ste. 1200,
Plano, Texas 75074 (the “Buyer”) supplements (this “Supplement”) that certain Asset Purchase Agreement (the
“Agreement”) between the Seller and the Buyer, dated 2nd of February, 2010, that pertains to the sale and purchase
of the Duke IP.
Recitals
WHEREAS, the Parties wish to amend the Agreement hereby.
NOW, THEREFORE, in consideration of the foregoing and of the mutual promises hereinafter set forth, the
Parties agree as follows:
1. Definitions. Except as expressly stated herein or modified in accordance with the provisions of this Supplement,
all capitalized words and phrases contained herein shall have the definitions and meanings set forth in the
Agreement.
2. Purpose. The purpose of this Supplement is to add clarity to the Agreement by stating those assets that are
retained by the Seller.
3. Agreement. Notwithstanding the exceptions noted, the Parties agree that everything listed on Exhibit 1 is
retained by the Sellers and does not transfer in any shape, manner, or form to the Buyer as a result of the
Agreement. The Agreement makes it clear that everything in the Duke IP post-Closing belongs to the Buyer and
those certain assets, which were created and/or developed prior to the Closing, listed on Exhibit 1 are retained by
the Seller. For purposes of clarity, the Parties agree that any revenues generated from any of the games listed as
“Duke Nukem Games and Projects Excluded from Revenue Sharing Provisions” on Exhibit 1 shall be paid to
Seller.
4. License to 3D Realms Name and Logo.
Subject to the terms and conditions of the Agreement, 3D Realms
grants to Gearbox (i) a worldwide, non-exclusive license (including the right to sublicense) to use the Apogee
Trademarks in connection with the marketing, promotion, manufacturing, and distribution of (i) computer video
games and other works based upon or derived from, in whole or in part, the Duke Nukem Universe or Duke Nukem
Game Property, and (ii) Ancillary Products. All such use of the Apogee Trademarks shall inure to the benefit of 3D
Realms and 3D Realms shall retain all ownership rights to such marks. All use of the Apogee Trademarks shall be
in conformance with the standards communicated by Seller for use of the marks. Buyer agrees that before any
products or services will contain an Apogee Trademark, Buyer will provide written notice (e-mail will suffice) to
Seller describing the product or service and how the Apogee Trademark will be used. Seller will have five (5)
business days from the date of the written notice to disapprove of its trademark being used on such product or
service and if no disapproval is provided (again, e-mail will suffice) by Seller within the five (5) business days, then
the Buyer may use the Apogee Trademark as if the Seller had approved.
5. License to Duke Trademarks. Subject to the terms and conditions of the Agreement, Buyer grants to Seller (i) a
worldwide, non-exclusive license (including the right to sublicense) to use the Duke Trademarks in connection with
the marketing, promotion, manufacturing, and distribution of (i) its movies based upon or derived from, in whole or
in part, the Duke Nukem Universe or Duke Nukem Game Property, (ii) Ancillary Products based on the movies, if

Confidential & Proprietary

any, and (iii) non-AAA platform versions of the excluded games listed below in Exhibit 1. All such use of the
Duke Trademarks shall inure to the benefit of Buyer and Buyer shall retain all ownership rights to such marks. All
use of the Duke Trademarks shall be in conformance with the standards communicated by Buyer for use of the
marks. Seller agrees that before any products or services will contain a Duke Trademark, Seller will provide written
notice (e-mail will suffice) to Buyer describing the product or service and how the Duke Trademark will be used.
Buyer will have five (5) business days from the date of the written notice to disapprove of its trademark being used
on such product or service and if no disapproval is provided (again, e-mail will suffice) by Buyer within the five (5)
business days, then the Seller may use the Duke Trademark as if the Buyer had approved.
6. Quarterly Payments. For the first twelve (12) months after the Effective Date of the Agreement, if Buyer stops
payment of the quarterly payments to Seller in accordance with Paragraph 1 of Exhibit 2.3 of the Agreement and
provides written notice (e-mail will suffice) to the Seller as to its intent to stop payments, the Parties agree that the
Agreement will unravel and both Parties will return to the same positions that they were in (in relation to each other
and the Duke IP) one-day prior to the execution of this Agreement, with the exception that Sellers are allowed to
keep all payments made by the Buyer and in the Seller’s possession.
7. Remains of the Agreement. Except as expressly modified in accordance with the provisions of this Supplement,
all other terms and conditions set forth in the Agreement shall remain in full force and effect, and any conflicts
between this Supplement and the Agreement shall be settled in favor of this Supplement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above
written. This Agreement may be executed by facsimile signature.
APOGEE SOFTWARE, LTD.

GEARBOX SOFTWARE, LLC

By:________________________________
By: ___________________________________
Name: Randy Pitchford
Name: Scott Miller
Title: CEO of Action Entertainment, Inc., the Title: President
general partner of Apogee Software, Ltd.

Privileged and Confidential

Exhibit 1 – Excluded Assets
I.
Retained Movie Rights
The Parties agree that the Seller expressly retains the Retained Movie Rights. The “Retained Movie Rights” are defined
as all rights, title and interest in and to the Duke Nukem Universe and Duke Nukem Game Property created or developed
prior to the Closing for use in connection with motion pictures, films, movies, videos, and television shows for any
medium now known or hereafter devised, including licensing of or granting any rights for any co-sponsorship, in-product
marketing/advertising, or co-promotional deals relating thereto. The Seller, also, expressly retains rights to create, sell,
license, and distribute (i) consumer goods and sundries (other than videogames and videogame-related products) bearing
the names, characters, and themes directly relating to the motion pictures, films, movies, videos, and television shows
and are promoted in connection with such works and (ii) books, comic books, magazines, and all other print-based media
products bearing the names, characters, and themes directly relating to such motion pictures, films, movies, videos, and
television shows and are promoted in connection with such works.
However, as an exception to the previous Retained Movie Rights carve-out, the Parties agree that the Buyer will receive
all rights, title and interest to the Duke IP, including all of the rights described in the previous paragraph, that are
comprised of the Duke IP that are conceived, created, developed, or in any other manner fashioned by Buyer postClosing.
II.











III.





IV.





Duke Nukem games previously released or in development
Duke Nukem 1
Duke Nukem 2
Duke Nukem 3D (and expansion packs)
Land of the Babes
Manhattan Project (currently in development for Xbox Live)
Time to Kill
Zero Hour
Balls of Steel
Duke Nukem 3D Live (published 2008 for Xbox Live)
Duke Nukem Critical Mass trilogy (in development by Apogee LLC)
Duke Nukem Survivor (tentative title -- initial platform: smart phones)
Excluded Intellectual Property
The “3D Realms” and “3D Realms Entertainment” names and related logos.
The “3D Realms” logo, which is the subject of U.S. Trademark Registration
The Apogee Software name and logo.
All new creative content developed by Schizophrenic Thinking, Inc. for Apogee Software and Radar Group for
use in connection with motion picture, film, and television works based upon the Duke Nukem Universe;
provided that such content refers only to the Duke Nukem Universe and Duke Nukem Game Property that was
developed and sold to the public prior to the Closing.
The “Bombshell” character and name.
Duke Nukem Games and Projects Excluded from Revenue Sharing Provisions
The “Critical Mass” trilogy of games in development by Apogee LLC for hand-helds (e.g., the Nintendo DS and
Sony PSP), smart phones (such as iPhone and Droid), digital download platforms (such as Xbox Live and
Steam), and browser platforms (such as Facebook).
The Duke Nukem Manhattan Project for all platforms.
The Duke Nukem “Survivor” game (working title) in development at Machineworks LLC for hand-helds,
mobile and smart phones, digital download platforms, and browser platforms.
Duke Nukem Live for Xbox Live platform, published by Microsoft in 2008/09, and ports to other digital
download platforms.
All ports of the Duke Nukem 3D game (originally published in 1996) to any platform.
Privileged and Confidential