f10k2009ex10xiii_redmile.htm


     

    Exhibit
10.13

     

     

    April 27,
2009

     

    VIA
FACSIMILE (+613 9328 8332)

     

    IR Gurus
Interactive Pty Ltd. Attn: Mr. Mike Fegan

    Level 3,
355 Spencer Street West Melbourne, Victoria 3003 Australia

     

    Re:   Heroes
over Europe — Sequel Rights

     

    Dear. Mr.
Fegan:

     

    Red Mile
Entertainment, Inc., a Delaware corporation, withOffices at 223 San AnseImo
Aye., Ste. 3, San Anselmo, CA 94960 ("RME") and IR Gunn Interactive Pty Ltd., a
company organized under the laws of Australia with a principal place of business
at Levet 3, 355 Spencer Street, West Melbourne, Victoria 3003 Australia and
doing business as Transmission Games ("TG") are entering into this letter
agreement (the "Agreement")
to provide for a grant of certain rights in and to Sequels (as defined
below) to the interactive game Heroes Over Europe for the Sony Playstation 3,
Microsoft Xbox 360 and personal computer (PC) platforms (the "Title") in accordance with
the terms and conditions set forth herein. RME and TG are each referred to
herein as a "Party" and
collectively as the "Parties.". The terms
"Sequel" and "Prequel" will have their respective meanings as defined in the
Development Agreement between TG and the New Publisher dated on or about 29
April 2009 and are incosporated into this Agreement by reference.

     

    TG, RME
and Atari Interactive, Inc. ("Afar') are pasties to a
letter agreement of even date herewith, pursuant to which Atari will have the
right to transfer
publishing rights for the. Title to a third-party publisher (the New Publisher") pursuant to a
rights buyout agreement (the "Rights Buyout
Agreement").

     

    The
Parties agree as follows:

     

    1.      
First
Sequel.

     

    
      
        	
                 
      

              	
                (a)

              	
                TG shall promptly
      notify RME in writing (an "Option
      Notice") after TG and the New
      Publisher have finally determined that the New Publisher will not pu lish,
      license, distribute andfor otherwise exploit (collectively, "Publish")
      the st
Sequel.

              


         

         

         

        
          
            
            

          

          
            1

            
              

            

          

          
            
            

          

        

         

         

        	 	 	 
	 	(b)	RME
      shall have the right, within ten business days after receipt of the Option
      Notice, to submit a bid to TG to Publish the first Sequel.
	 	 	 
	 	(c)	
                Upon
      RME's submission of a bid, RME and TG shall negotiate in good faith for a
      reasonable period of time, not to exceed twenty calendar days after
      submission of the bid, regarding the terms and conditions under which RME
      will Publish the first Sequel.

              
	 	 	 
	 	(d)	
                Except
      as provided in Section 1 (e) below, If RME and TG have not reached
      agreement in writing regarding the terms and conditions under which RME
      will . Publish the first Sequel within the period set fbrth in Section
      1(c) above, or if RME does not submit ,a timely bid, TG shall be free to
      accept a bid from any third party or to elect not to, grant third-party
      rights to Publish the Sequel.

              
	 	 	 
	 	(e)	RME's
      rights with respect to the first Sequel shall cease on March 3,
      2016.


      

    

             

    2.        Second Sequel.

     

    
      	
              (a)  

            	
              if
      TG has delivered an Option Notice to RME with respect to the first Sequel
      and RME has not submitted a bid, RME shall have no rights with respect to
      the second Sequel or any additional
Sequel.

            


    

     

    
      	
              (b)  

            	
              If
      RME submitted a bid in response to an Option Notice with respect to the
      first Sequel or matched the terms of a third-party bid to Publish the
      first Sequel, RME shall have the same rights with respect to the second
      Sequel as for the first Sequel, as set forth in Section l(a) through 1(e)
      above.

            


    

     

    
      	
              3.

            	
              Conditions. The following are
      conditions precedent to the effectiveness of thisAgreement and the
      obligations of the parties hereunder, and the failure of either such
      condition shall render this Agreement null and void from the date of its
      execution:

            


    

     

    
      	
               
      

            	
              (a)

            	
              Mutual
      execution of the Rights.Buyout Agreement by a duly authorized officer of
      each
      of Atari and the New Publisher by June 30, 2009;
  and

            


    

     

    4.      
 Representations and Warranties:
Indemnity.

     

              
(a)      TO represents and warrants to and RME
represents to TO that

     

    
      
        	
                 
      

              	
                (i)

              	
                It
      has the full power and authority to grant to RME the rights granted under
      this Agreement;

              
	 	 	 
	 	

                (ii)

              	Neither
      this Agreement nor the exercise of the other party's rights hereunder will
      infringe, violate or misappropriate any intellectual property Of any third
      party; and


      

    

     

    
      	
               
      

            	
              (iii)

            	
              It
      has not sold, assigned, leased, licensed or in any other way disposed of
      or
      encumbered the rights granted to the other hereunder and will not sell,
      assign, lease, limnse or in any other way dispose of or encumber any of
      such rights.

            


    

     

     

    


     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

     

    
      	
                       
      (b)

            	
              

                

                  Each
      will indemnify, defend and hold harmless the other and its
      affiliates, officers, directors, employees and agents from and against all
      losses, liabilities, claims, obligations and expenses (including
      reasonable attorneys' tees) arising from any third-partyolaim in
      connection with any breach or alleged breach by that party of this
      Agreement or any of the formoing representations and
      warranties.

                

              

            


    

     

    5.     Notices. All notices
hereunder shall be in writing and shall be effective upon receipt. Notices may
be sent by any reasonable means, including facsimile, to the Parties at their
addresses and facsimile
numbers written above. The Parties shall notify one another of any change of
their address or facsimile number.

     

    6.    Binding Nature of
Terms. Each of the terms of this Agreement is binding upon
the Parties, and•their respective successors, transferees, assigns, heirs and
personal representatives. If any provision of this Agreement is declared null
and void or unenforceable by any court or tribunal having jurisdiction, then
such provision shall be considered separate and apart from the remainder of this
Agreement which shall remain in full force and effect, but such provision shall
be modified (as nearly as possible to reflect its original intent)'to eliminate
such aspects of the provision that made it null, void or unenforceable and such
modified provision shall then be deemed an original part of this
Agreement.

     

    7.    Construction and
Headings. Thid Agreement shall not be construed more strictly
against one Party than against any other Party by virtue of the fact that this
Agreement may have been drafted orpreparcd by counsel for one of the Parties,
the Parties recognizing and acknowledging that all Parties to this Agreement
have contributed substantially and materially to the drafting and preparation
hereof. The headings, titles and captions contained in this Agreement are
inserted only as a matter
of convenience and for
reference, and in no way define, extend or describe the scope of this
Agreement or the intent or meaning of any provision herein.

     

    8.     Authorization of
Signatories. The persons signing this Agreement represent and
warrant that they are duly authorized to execute this Agreement on behalf of RME
and TG, respectively, and to bind said entities to the terms, conditions,
proviSions, duties and obligations set forth in this Agreement.

     

    9.    Execution in
Counterparts and Facsimiles. This Agreement may be executed
in any number of counterparts and signatures may be passed by way of the
exchange of digitally scanned copies in .PDF format, each and all of which shall
be deemed for all purposes to be one agreement with original
signatures.

     

    
      10.  Further Assurances.
The Parties mutually agree to execute, acknowledge, and deliver any and
all such agreements, documents and instruments, and to perform any and all
such acts and
things as may be reasonably necessary and proper to consummate the transactions
contemplated by this Agreement.

    

     

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

     

     

     

    
      11.   Governing Law; Jurisdiction:
loliscellaneous. This Agreement can only be modified by a
writing
signed by a duly authorized officer of each Party specifically referring to this
Agreement.
If either Party iniltiates an action for enforcement of the terms of this
Agreement,
the prevailing party shall be entitled to attorneys' fees and costs. The
Parties  irrevocably
consent and submit to the exclusive jurisdiction of the courts of the state and
federal courts located within Victoria, Australia for purposes of any dispute
arising hereunder or in connection with this Agreement. This Agreement, shall be
governed under the lavis of the State of Victoria without regard to its
principals of conflict of laws.

    

     

    12. 
Termination. TG may terminate
this Agreement immediately with written notice if RME goes into
compulsory or voluatary liquidation or if a Receiver is appointed or if RME
makes an assignment for the benefit of or composition with its creditors
generally, or Ekthreatens
any of the foregoing,

     

            Please
indicate your consent by signing two copies of this. Agreement and returning a
fully executed originals to the other Party.

     

     

    
      
        	 	 	
                Sincerely yours,

                 

                Red Mile Entertainment, Inc.

              
	 	 	 
	
                 
      

              	
                By:

              	/s/ Simon
      Price
	 	 	Simon Price,
      CEO


      

    

    
      
      

    

     

     

    ACCEPTED
AND AGREED TO:

     

    IR
GURUS PTY LTD

    D/B/A
TRANSMISSION GAMES

     

     

    By: /s/Michael
T. Fegan

    Name:
MichaelT. Fegan

    Title:
CEO

    Dated:
27/4/2009

     

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