Exhibit 10.9


[***] DENOTES CONFIDENTIAL MATERIALS OMITTED AND
FILED


SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION

PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT


 


CONFIDENTIAL
LICENSE AGREEMENT


FOR
THE Wii CONSOLE


(Western Hemisphere)


THIS LICENSE AGREEMENT (“Agreement”) is entered into
between NINTENDO OF AMERICA INC. (“NOA”) at 4820 150th Avenue N.E., Redmond, WA
 98052 Attn: General Counsel (Fax:
425-882-3585) and ACTIVISION PUBLISHING, INC. (“LICENSEE”) at 3100 Ocean Park
Blvd., Santa Monica, CA 90405 Attn:  Suzan Rude (Fax: 310-255-2100).  NOA and LICENSEE agree as follows:


1.                                      RECITALS


 


1.1           NOA markets and sells advanced
design, high-quality video game systems, including the Wii video game console (“Wii”).


1.2           LICENSEE desires use of the highly
proprietary programming specifications, unique and valuable security
technology, trademarks, copyrights and other valuable intellectual property
rights of NOA and its parent company, Nintendo Co., Ltd., which rights are only
available for use under the terms of a license agreement, to develop, have
manufactured, advertise, market and sell video game software for play on Wii.


1.3           NOA is willing to grant a license to
LICENSEE on the terms and conditions set forth in this Agreement.


2.                                      DEFINITIONS


 


2.1           “Artwork” means the text and design
specifications for the Game Disc label and the Printed Materials in the format
specified by NOA in the Guidelines.


2.2           “Bulk Goods” means Game Discs that
have been printed with the Game Disc label Artwork for delivery to LICENSEE
without Printed Materials or other packaging.


2.3           “Check Disc(s)” means the
pre-production Game Discs to be produced by Nintendo.


2.4           “Confidential Information” means the
information described in Section 8.1.


2.5           “Development Tools” means the
development kits, programming tools, emulators and other materials of Nintendo,
or third parties authorized by Nintendo, that may be used in the development of
Games under this Agreement.


2.6           “Effective Date” means October 12,
2006.


2.7           “Game Discs(s)” means custom optical
discs for play on Wii on which a Game has been stored.


2.8           “Game(s)” means any interactive
programs (including source and object/binary code) developed to be compatible
with Wii.


2.9           “Guidelines” means the then current
version of “Wii Programming Guidelines,” “Licensee Packaging Guidelines,” and “Nintendo
Trademark Guidelines,” together with other guidelines provided by NOA to
LICENSEE from time to time.


2.10         “Independent Contractor” means any
individual or entity that is not an employee of LICENSEE, including any
independent programmer, consultant, contractor, board member or advisor.

















 


2.11         “Intellectual Property Rights” means
individually, collectively or in any combination, Proprietary Rights owned,
licensed or otherwise held by Nintendo that are associated with the
development, manufacturing, advertising, marketing or sale of the Licensed
Products, including, without limitation, (a) registered and unregistered
trademarks and trademark applications used in connection with Wii including
Nintendo®, WiiTM, Official Nintendo Seal of Quality®, and MiiTM , (b) select
trade dress associated with Wii and licensed video games for play thereon, (c)
Proprietary Rights in the Security Technology employed in the Games or Game
Discs by Nintendo, (d) rights in the Development Tools for use in developing
the Games, excluding, however, rights to use, incorporate or duplicate select
libraries, protocols and/or sound or graphic files associated with the
Development Tools which belong to any third party and for which no additional
licenses or consents are required, (e) patents, design registrations or
copyrights which may be associated with the Game Discs or Printed Materials,
(f) copyrights in the Guidelines, and (g) other Proprietary Rights of Nintendo
in the Confidential Information.


2.12         “Licensed Products” means Bulk Goods
after being assembled by or for LICENSEE with the Printed Materials in
accordance with the Guidelines.


2.13         “Marketing Materials” means marketing,
advertising or promotional materials developed by or for LICENSEE (or subject
to LICENSEE’s approval) that promote the sale of the Licensed Products,
including but not limited to, television, radio and on-line advertising,
point-of-sale materials (e.g., posters, counter-cards), package advertising,
print media and all audio or video content other than the Game that is to be
included on the Game Disc.


2.14         “NDA” means the non-disclosure
agreement related to Wii previously entered into between NOA and LICENSEE.


2.15         “Nintendo” means NOA’s parent company,
Nintendo Co., Ltd., of Kyoto, Japan, individually or collectively with NOA.


2.16         “Notice” means any notice permitted or
required under this Agreement.  All
notices shall be sufficiently given when (a) personally served or delivered, or
(b) transmitted by facsimile, with an original sent concurrently by first class
U.S. mail, or (c) deposited, postage prepaid, with a guaranteed air courier
service, in each case addressed as stated herein, or addressed to such other
person or address either party may designate in a Notice.  Notice shall be deemed effective upon the
earlier of actual receipt or two (2) business days after transmittal, provided,
however, any Notice received after the recipient’s normal business hours will
be deemed received on the next business day.


2.17         “Price Schedule” means the then current
version of NOA’s schedule of purchase prices and minimum order quantities for
the Bulk Goods.


2.18         “Printed Materials” means a plastic
disc storage case, title page, instruction booklet, warranty card and poster
incorporating the Artwork.


2.19         “Promotional Disc(s)” means custom
optical discs compatible with Wii that incorporate select game promotional or
supplemental materials, as may be specified or permitted in the Guidelines.


2.20         “Proprietary Rights” means any rights
or applications for rights owned, licensed or otherwise held in patents,
trademarks, service marks, copyrights, mask works, trade secrets, trade dress,
moral rights and publicity rights, together with all inventions, discoveries,
ideas, technology, know-how, data, information, processes, formulas, drawings
and designs, licenses, computer programs, software source code and object code,
and all amendments, modifications, and improvements thereto for which such
patent, trademark, service mark, copyright mask work, trade secrets, trade
dress, moral rights or publicity rights may exist or may be sought and obtained
in the future.


2.21         “Rebate Program” means any then current
version of NOA’s optional rebate program, establishing select terms for price
rebates under this Agreement.


 


2

















 


2.22                           “Reverse Engineer(ing)” means, without
limitation, (a) the x-ray, electronic scanning or physical or chemical
stripping of semiconductor components, (b) the disassembly, decompilation,
decryption or simulation of object code or executable code, or (c) any other
technique designed to extract source code or facilitate the duplication of a
program or product.


2.23                           “Security Technology” means the highly
proprietary security features of the Wii and the Licensed Products to minimize
the risk of unlawful copying and other unauthorized or unsafe usage, including,
without limitation, any security signature, bios, data scrambling, password,
hardware security apparatus, watermark, hologram, encryption, digital rights
management system, copyright management information system, proprietary
manufacturing process or any feature which obstructs piracy, limits unlawful,
unsafe or unauthorized use, or facilitates or limits compatibility with other
hardware, software, accessories or peripherals, or with respect to a video game
system other than the Wii, or limits distribution outside of the Territory.


2.24                           “Term” means three (3) years from the
Effective Date.


2.25                           “Territory” means all countries within
the Western Hemisphere and their respective territories and possessions.


2.26                           Wii Network Services” means and includes
the Wii Shop Channel Services, WiiConnect24, and any related services and
material delivered to a consumer’s Wii console over the Internet.


3.                                      GRANT
OF LICENSE; LICENSEE RESTRICTIONS


 


3.1                                 Limited License Grant. 
For the Term and for the Territory, NOA grants to LICENSEE a
nonexclusive, nontransferable, limited license to use the Intellectual Property
Rights to develop (or have developed on LICENSEE’s behalf) Games for
manufacture, advertising, marketing and sale by LICENSEE as Licensed Products,
subject to the terms and conditions of this Agreement.  Except as permitted under a separate written
authorization from Nintendo, LICENSEE shall not use the Intellectual Property
Rights for any other purpose.


3.2                                 LICENSEE Acknowledgement. 
LICENSEE acknowledges (a) the valuable nature of the Intellectual
Property Rights, (b) the right, title and interest of Nintendo in and to the
Intellectual Property Rights, and (c) the right, title, and interest of
Nintendo in and to the Proprietary Rights associated with all aspects of
Wii.  LICENSEE recognizes that the
Development Tools, Games, Game Discs and Licensed Products will embody valuable
rights of Nintendo and Nintendo’s licensors. 
LICENSEE represents and warrants that it will not undertake any act or
thing which in any way impairs or is intended to impair any part of the right,
title, interest or goodwill of Nintendo in the Intellectual Property
Rights.  LICENSEE’s use of the
Intellectual Property Rights shall not create any right, title or interest of
LICENSEE therein.  Licensee is authorized
and permitted to develop Games, and have manufactured, advertise, market, and
sell Licensed Products, only for play on Wii and only in accordance with this
Agreement.


3.3                                 LICENSEE Restrictions and Prohibitions. 
LICENSEE is not licensed to and covenants that, without the express,
written consent of NOA, it will not at any time, directly or indirectly, do or
cause to be done any of the following:


(a)           grant access to, distribute, transmit
or broadcast a Game by electronic means or by any other means known or
hereafter devised, including, without limitation, by wireless, cable, fiber
optic, telephone lines, microwave, radiowave, computer or other device network,
except (a) as a part of wireless Game play on and among Wii systems, or between
Wii and Nintendo DS systems (b) for the purpose of facilitating Game
development under the terms of this Agreement, or (c) as otherwise approved in
writing by Nintendo.  LICENSEE shall use
reasonable security measures, customary within the high technology industry, to
reduce the risk of unauthorized interception or retransmission of any Game
transmission.  No right of retransmission
shall attach to any authorized transmission of a Game;


 


3

















 


(b)           authorize or permit any online
activities involving a Game, including, without limitation, multiplayer,
peer-to-peer or online play, except as expressly permitted by Nintendo in
writing;


(c)           modify, install or operate a Game on
any server or computing device for the purpose of or resulting in the rental,
lease, loan or other grant of remote access to the Game;


(d)           emulate, interoperate, interface or
link a Game for operation or use with any hardware or software platform,
accessory, computer language, computer environment, chip instruction set,
consumer electronics device or device other than Wii, the Nintendo DS system,
the Development Tools or such other Nintendo system as NOA may authorize in the
Guidelines;


(e)           embed, incorporate, or store a Game
in any media or format except the optical disc format utilized by Wii, except
as may be necessary as a part of the Game development process under this
Agreement;


(f)            design, implement or undertake any
process, procedure, program or act designed to disable, obstruct, circumvent or
otherwise diminish the effectiveness or operation of the Security Technology;


(g)           utilize the Intellectual Property Rights
to design or develop any interactive video game program, except as authorized
under this Agreement;


(h)           manufacture or reproduce a Game
developed under this Agreement, except through Nintendo; or


(i)            Reverse Engineer or assist in
Reverse Engineering all or any part of Wii, including the hardware, software
(embedded or not) or the Security Technology.


3.4                                 No Free-Riding; No Co-Publishing
Arrangements.  To protect Nintendo’s valuable Intellectual
Property Rights, to prevent the dilution of Nintendo’s trademarks and to
preclude free-riding by third parties on the goodwill associated with Nintendo’s
trademarks, the license granted under this Agreement is limited to LICENSEE and
may not be delegated or contracted out for the benefit of a third party, or to a
division, affiliate, or subsidiary of LICENSEE. 
This Agreement, together with all submissions, representations,
undertakings and approvals contemplated of LICENSEE by this Agreement, is and
shall remain the right and obligation only of LICENSEE.  All Printed Materials and Marketing Materials
for a Game shall prominently and accurately identify LICENSEE as NOA’s
licensee.  NOA does not permit the
designation or identification of any third party co-publisher for a Game on any
Game Disc or Game Disc label Artwork, however, LICENSEE may identify a third
party as a co-publisher, licensor, developer or other partner of LICENSEE in
those Printed Materials (other than the Game Disc label), Marketing Materials
or Game credits, as authorized under the Guidelines.  For purposes of clarification, LICENSEE’s
name, or logo, will appear on the Licensed Product Game Disc case and Game Disc
label as it appears in the preamble of this Agreement.


3.5                                 Development Tools. 
NOA and Nintendo Co., Ltd. may lease, loan or sell Development Tools to
LICENSEE to assist in the development of Games under this Agreement.  Ownership and use of any Development Tools
shall be subject to the terms of this Agreement and any separate license or
purchase agreement required by Nintendo or any third party licensing the
Development Tools. LICENSEE acknowledges the respective interests of Nintendo,
and in the case of third-party Development Toots, such third parties, in and to
the Proprietary Rights associated with the Development Tools.  LICENSEE’s use of the Development Tools shall
not create any right, title or interest of LICENSEE therein.  LICENSEE shall not, directly or indirectly,
(a) use the Development Tools for any purpose except the design and development
of Games under this Agreement, (b) reproduce or create derivatives of the
Development Tools, except in association with the development of Games under
this Agreement, (c) Reverse Engineer the Development Tools, or (d) sell, lease,
assign, lend, license, encumber or otherwise transfer the Development
Tools.  Anything developed or derived by
LICENSEE as a result of a study of the performance, design or operation of any
Nintendo Development Tools shall be


 


4

















 


considered a derivative work of the Intellectual
Property Rights and shall belong to Nintendo, but may be retained and utilized
by LICENSEE in connection with this Agreement. 
In no event shall LICENSEE (i) seek, claim or file for any patent,
copyright or other Proprietary Right with regard to any such derivative work,
(ii) make available any such derivative work to any third party, or (iii) use
any such derivative work except in connection with the design and development
of Games under this Agreement.  Anything
developed or derived by LICENSEE as a result of a study of the performance,
design or operation of any third-party Development Tools shall be governed by
the terms of the license agreement applicable to such Development Tools.  Notwithstanding any referral or information
provided or posted regarding third-party Development Tools, NOA and Nintendo
Co., Ltd. make no representations or warranties with regard to any such
third-party Development Tools.  LICENSEE
acquires and utilizes third-party Development Tools at its own risk.


3.6           Third Party Developers.  LICENSEE shall not disclose the Confidential
Information, the Guidelines or the Intellectual Property Rights to any
Independent Contractor, nor permit any Independent Contractor to perform or
assist in development work for a Game, unless and until such Independent
Contractor has signed a confidentiality agreement with LICENSEE that is no less
restrictive than the terms of Section 8 below, and that expressly includes the
following language [***]:


“Independent Contractor may have access to highly-confidential
and proprietary information, intellectual property, and trade secrets of
Nintendo Co., Ltd. and/or Nintendo of America Inc. (collectively, “Nintendo”).  Independent Contractor expressly acknowledges
(i) the valuable nature of such materials; and (ii) Nintendo’s right, title and
interest in such materials.  All such
materials constitute confidential information under this agreement and shall be
treated by Independent Contractor as such. 
Independent Contractor shall not undertake any act or thing which in any
way impairs or is intended to impair any part of the right, title, interest or
goodwill of Nintendo in such materials. 
Independent Contractor’s use of such materials shall not create any
right, title or interest of Independent Contractor therein.  Nintendo Co., Ltd. and Nintendo of America
Inc. are intended third-party beneficiaries of this agreement.”










[***] DENOTES CONFIDENTIAL
MATERIALS OMITTED AND FILED  SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION  PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT


 


3.7           Games Developed for Linked Play on
Two Systems.  In the event the
Guidelines permit LICENSEE to develop a Game for simultaneous or linked play on
Wii and on another Nintendo video game system, LICENSEE shall be required to
acquire and maintain with NOA such additional licenses as are necessary for the
use of the Proprietary Rights associated with such other Nintendo video game
system.


3.8           In Game Advertising.  LICENSEE shall not include advertising or
product placements for products or services of third parties, whether in the
Game, as separate content on a Game Disc (e.g., a trailer), or in the Printed
Materials without Nintendo’s prior written consent.


3.9           Use of Wii Characters.  LICENSEE shall not develop any Game that
permits Nintendo’s Mii characters to appear in the Game without NOA’s prior
written consent.


 


5





















 


3.10         Sending Data to Consumers.  LICENSEE shall not, without the prior,
written consent of NOA, send any data, content, messages, advertising, or other
communications of any kind to any consumer’s Wii console through the Wii
Network Services or otherwise.


3.11         Downloadable Content.  If LICENSEE desires to develop Games, or
updates/additions of any kind for any Licensed Product, to be downloaded to
consumers through the Wii Network Services, the terms and conditions of such
development shall be separately agreed in writing between the parties.  LICENSEE acknowledges that the rights granted
herein do not include the right to use the Intellectual Property Rights to
develop downloadable content.


4.                                      SUBMISSION
AND APPROVAL OF GAME AND ARTWORK


 


4.1           Submission of a Completed Game to
NOA.  Upon completion of a Game,
LICENSEE shall deliver a prototype of the Game to NOA in a format specified in
the Guidelines.  Delivery shall be made
in accordance with the methods set forth in the Guidelines.  Each Submission shall include such other
information or documentation deemed necessary by NOA, including, without
limitation, a complete set of written user instructions, a complete description
of any security holes, backdoors, time bombs, cheats, “easter eggs” or other
hidden features or characters in the Game and a complete screen text
script.  LICENSEE must establish that the
Game and any other content included on the Game Disc complies with the
Advertising Code of Conduct of the Entertainment Software Ratings Board (“ESRB”)
and that the Game has been rated EC, E, El0+, T or M (or another non-Adult Only
category added by the ESRB) by the ESRB. 
LICENSEE shall provide NOA with a certificate of rating for the Game
issued by the ESRB.


4.2           Testing of a Completed Game.  Upon submission of a completed Game, NOA and
Nintendo Co., Ltd. shall promptly test the Game with regard to its technical
compatibility with and error-free operation on Wii, utilizing the lot check
process.  Within a reasonable period of
time after receipt, NOA shall approve or disapprove such Game.  If a Game is disapproved, NOA shall specify
in writing the reasons for such disapproval and state what corrections are
necessary.  After making the necessary
corrections, LICENSEE shall submit a revised Game to NOA for testing.  NOA shall not unreasonably withhold or delay
its approval of any Game. Neither the testing nor approval of a Game by NOA or
Nintendo Co., Ltd. shall relieve LICENSEE of its sole responsibility for the
development, quality and operation of the Game or in any way create any
warranty by NOA or Nintendo Co., Ltd. relating to any Licensed Product.


4.3           Production of Check Discs.  By submission of a completed Game to NOA in
accordance with section 4.1, LICENSEE authorizes Nintendo to proceed with
production of Check Discs for such Game. 
If NOA approves a Game, it shall promptly, and without further
notification to or instruction from LICENSEE, submit such Game for the
production of Check Discs.  Unless
otherwise advised by LICENSEE, following production of the Check Discs, NOA
shall deliver to LICENSEE approximately ten (10) Check Discs for content
verification, testing and final approval by LICENSEE.


4.4           Approval or Disapproval of Check
Discs by LICENSEE.  If, after review
and testing, LICENSEE approves the Check Discs, it shall promptly transmit to
NOA a signed authorization for production in the form specified in the Guidelines.  If LICENSEE does not approve the sample Check
Discs for any reason, LICENSEE shall advise NOA in writing and may, after
undertaking any necessary changes or corrections, resubmit the Game to NOA for
approval in accordance with the procedures set forth in this Section 4.  The absence of a signed authorization form
from LICENSEE within five (5) days after delivery of the Check Discs to
LICENSEE shall be deemed disapproval of such Check Discs.  Production of any order for Bulk Goods shall
not proceed without LICENSEE’s signed authorization.


4.5           Cost of Check Discs and Disc
Stamper.  If LICENSEE: (a)
disapproves the Check Discs for any reason; (b) fails to order the minimum
order quantity of any Game approved by NOA within six (6) months after the date
the Game was first approved by NOA; or (c) submits a revised version of the
Game to NOA after production of such Game has commenced, LICENSEE shall
reimburse NOA (or its designee) for the reasonable estimated cost of the
production of the Check Discs, including the cost of


 


6





















 


the disc stamper. 
The payment will be due (i) thirty (30) days after NOA’s written
notification to LICENSEE of the Check Disc fee due NOA because of LICENSEE’s
failure to approve such Check Disc; (ii) six (6) months after the date the Game
was first approved by NOA; or (iii) upon the subsequent submission by LICENSEE
of a revised version of the Game to NOA, as the case may be.


4.6           Submission and Approval of Artwork.  Prior to submitting a completed Game to NOA
under Section 4.1, LICENSEE shall submit to NOA all Artwork for the proposed
Licensed Product.  Within ten (10)
business days of receipt, NOA shall approve or disapprove the Artwork. If any
Artwork is disapproved, NOA shall specify in writing the reasons for such
disapproval and state what corrections or improvements are necessary.  After making the necessary corrections or
improvements, LICENSEE shall submit revised Artwork to NOA for approval.  NOA shall not unreasonably withhold or delay
its approval of any Artwork.  The
approval of the Artwork by NOA shall not relieve LICENSEE of its sole
responsibility for the development and quality of the Artwork or in any way
create any warranty for the Artwork or the Licensed Product by NOA.  All Artwork must be approved prior to
submitting an order for the Bulk Goods, and LICENSEE shall not produce any
Printed Materials for commercial distribution until such Artwork has been
approved by NOA.


4.7           Promotional Discs.  In the event NOA issues Guidelines in the
future that permit LICENSEE to develop and distribute Promotional Discs, either
separately or as a part of the Licensed Product, the content and specifications
of such Promotional Disc shall be subject to all of the terms and conditions of
this Agreement, including, without limitation, the Guidelines, the Price
Schedule and the submission and approval procedures provided for in this
Section 4.


5.                                      ORDER
PROCESS, PURCHASE PRICE, PAYMENT AND DELIVERY


 


5.1           Submission of Orders by LICENSEE.  After receipt of NOA’s approval for a Game
and Artwork, LICENSEE may at any time submit a written purchase order to NOA
for Bulk Goods for such Game.  The terms
and conditions of this Agreement shall control over any contrary or additional
terms of such purchase order or any other written documentation or verbal
instruction from LICENSEE.  All orders
shall be subject to acceptance by NOA in Redmond, WA.


5.2           Purchase Price and Minimum Order
Quantities.  The purchase price and
minimum order quantities for the Bulk Goods shall be set forth in NOA’s then
current Price Schedule. Unless otherwise specifically provided for, the
purchase price includes the cost of manufacturing a single Game Disc, together
with a royalty for the use of the Intellectual Property Rights.  No taxes, duties, import fees or other
tariffs related to the development, manufacture, import, marketing or sale of
the Licensed Products (except for taxes imposed on NOA’s income) are included
in the purchase price and all such taxes are the responsibility of
LICENSEE.  The Price Schedule is subject
to change by NOA at any time without Notice, provided however, that any price
increase shall be applicable only to purchase orders submitted, paid for, and
accepted by NOA after the effective date of the price increase.


5.3           Payment.  Upon placement of an order with NOA, LICENSEE
shall pay the full purchase price either (a) by tender of an irrevocable letter
of credit in favor of NOA (or its designee) and payable at sight, issued by a
bank acceptable to NOA and confirmed, if requested by NOA, at LICENSEE’s
expense, or (b) in cash, by wire transfer to an account designated by NOA.  Alt letters of credit shall comply with NOA’s
written instructions and all associated banking charges shall be for LICENSEE’s
account.


5.4           Delivery of Bulk Goods.  Bulk Goods shall be delivered to LICENSEE FCA
Torrance, California, USA, or such other delivery point within the continental
United States as may be specified by NOA. 
Orders may be delivered in partial shipments, at NOA’s option.  Title to Bulk Goods shall vest in LICENSEE in
accordance with the terms of the applicable letter of credit, or in the absence
thereof, upon delivery to LICENSEE and receipt by NOA of full payment for the
shipment at issue.  The term “FCA” shall
have the same meaning for purposes of this Section as given by INCOTERMS 2000.


5.5           Rebate Program.  NOA, at its sole option, may elect to offer
LICENSEE a Rebate Program.  The terms and
conditions of any Rebate Program shall be subject to NOA’s sole discretion.


 


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LICENSEE shall not be entitled to offset any claimed
rebate amount against other amounts owing NOA. 
No interest shall be payable by NOA to LICENSEE on any claimed
rebate.  The Rebate Program is subject to
change or cancellation by NOA at any time without Notice.


6.                                      MANUFACTURE
OF THE LICENSED PRODUCT


 


6.1           Manufacturing.  Nintendo Co., Ltd. shall be the exclusive
source for the manufacture of the Game Discs, Check Discs and Promotional
Discs, with responsibility for all aspects of the manufacturing process,
including the selection of the locations and specifications for any
manufacturing facilities, determination of materials and processes, appointment
of suppliers and subcontractors and management of all work-in-progress.  Upon acceptance by NOA of a purchase order
from LICENSEE and receipt of payment as provided for at Section 5.3 herein, NOA
shall place the order with Nintendo Co., Ltd. who shall (through its suppliers
and subcontractors) arrange for manufacturing.


6.2           Security Features.  The final release version of the Game, the
Game Disc and the Printed Materials shall include such Security Technology as
Nintendo, in its sole discretion, deems necessary or appropriate to (a) reduce
the risk of unlawful copying or other unlawful, unsafe or unauthorized uses,
(b) protect the Proprietary Rights of Nintendo and of the LICENSEE, (c) promote
consumer confidence, and (d) increase the quality, reliability or operation of
Wii.


6.3           Printed Materials for Bulk Goods.  Upon delivery to LICENSEE of Bulk Goods,
LICENSEE shall assemble the Printed Materials and Bulk Goods into the Licensed
Products in accordance with the Guidelines. 
No other materials, items, products or packaging may be included or
assembled with the Bulk Goods without NOA’s prior written consent.  Bulk Goods may be sold or distributed by
LICENSEE only when fully assembled in accordance with the Guidelines.


6.4           Prior Approval of LICENSEE’s
Independent Contractors.  Prior to
the placement of a purchase order for Bulk Goods, LICENSEE shall obtain NOA’s
approval of any Independent Contractors selected to perform the production and
assembly operations.  LICENSEE shall
provide NOA with the names, addresses and all business documentation reasonably
requested by NOA for such Independent Contractors.  NOA may, prior to approval and at reasonable
intervals thereafter, (a) require submission of additional business or
financial information regarding the Independent Contractors, (b) inspect
applicable facilities of the Independent Contractors, and (c) be present to
supervise any work on the Licensed Products to be done by the Independent
Contractors. If at any time NOA deems the Independent Contractor to be unable
to meet quality, security or performance standards reasonably established by
NOA, NOA may refuse to grant its approval or withdraw its approval upon Notice
to LICENSEE.  LICENSEE may not proceed
with the production of the Printed Materials or assembly of the Licensed Product
by such Independent Contractor until NOA’s concerns have been resolved to its
satisfaction or until LICENSEE has selected and received NOA’s approval of
another Independent Contractor.  NOA may
establish preferred or required supply sources for select components of the
Printed Materials, or for assembly of Printed Materials and Bulk Goods into
Licensed Products, which sources shall be deemed preapproved in accordance with
this Section 6.4.  LICENSEE shall comply
with all sourcing requirements established by NOA.


6.5           Sample Printed Materials.  Within a reasonable period of time after
LICENSEE’s assembly of an initial order for Bulk Goods for a Game title,
LICENSEE shall provide NOA with (a) six (6) samples of the fully assembled
Licensed Product, and (b) seventy-five (75) samples of the LICENSEE produced
Printed Materials (excluding the plastic disc storage case, warranty card, and
poster) for such Game title.


6.6           Retention of Sample Licensed
Products by NOA.  NOA or Nintendo
may, at their own expense, manufacture reasonable quantities of the Bulk Goods,
and make a reasonable number of copies of the Printed Materials to be used for
archival purposes, legal proceedings against infringers of the Intellectual
Property Rights and for other lawful purposes.


 


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7.                                      MARKETING
AND ADVERTISING


 


7.1           Approval of Marketing Materials.  LICENSEE represents and warrants that the
Printed Materials and the Marketing Materials shall be of high quality and
comply with (a) the Guidelines, (b) the ESRB’s Advertising Code of Conduct and
Principles and Guidelines for Responsible Advertising, and (c) all applicable
laws and regulations in those jurisdictions in the Territory where they will be
used or distributed, including without limitation all applicable privacy laws such
as the Children’s Online Privacy Protection Act.  Prior to actual use or distribution, LICENSEE
shall submit to NOA for review samples of all proposed Marketing
Materials.  NOA shall, within ten (10)
business days of receipt, approve or disapprove of the quality of such
samples.  If any of the samples are
disapproved, NOA shall specify the reasons for such disapproval and state what
corrections and/or improvements are necessary. 
After making the necessary corrections and/or improvements, LICENSEE
shall submit revised samples for approval by NOA.  No Marketing Materials shall be used or
distributed by LICENSEE without NOA’s prior written approval.  NOA shall not unreasonably withhold or delay
its approval of any proposed Marketing Materials.


7.2           No Bundling.  To protect Nintendo’s valuable Intellectual
Property Rights, to prevent the dilution of Nintendo’s trademarks and to
preclude free-riding by non-licensed products on the goodwill associated with
Nintendo’s trademarks, LICENSEE shall not market or distribute any Games or
Game Discs that have been bundled with (a) any peripheral designed for use with
Wii that has not been licensed or approved in writing by NOA, or (b) any other
product or service where NOA’s association, approval or endorsement might be
suggested by bundling the products or services.


7.3           Warranty and Repair.  LICENSEE shall provide the original consumer
with a minimum ninety (90) day limited warranty on all Licensed Products.  LICENSEE shall also provide reasonable
product service, including out-of-warranty service, for all Licensed
Products.  LICENSEE shall make such
warranty and repair information available to consumers as required by
applicable federal and state law.


7.4           Business Facilities.  LICENSEE agrees to develop and maintain (a)
suitable office facilities within the United States, adequately staffed to
enable LICENSEE to fulfill all responsibilities under this Agreement, (b)
necessary warehouse, distribution, marketing, sales, collection and credit
operations to facilitate proper handling of the Licensed Product, and (c)
customer service and game counseling, including telephone service, to
adequately support the Licensed Products.


7.5           No Sales Outside the Territory.  LICENSEE covenants that it shall not market,
sell, offer to sell, import or distribute the Licensed Products outside the
Territory, or within the Territory when LICENSEE has actual or constructive
knowledge that a subsequent destination of the Licensed Product is outside the
Territory.


7.6           Defects and Recall.  In the event of a material programming defect
in a Licensed Product that would, in NOA’s reasonable judgment, significantly
impair the ability of a consumer to play the Game, NOA may, after consultation
with LICENSEE, require the LICENSEE to recall the Licensed Product and
undertake suitable repairs or replacements.


7.7           NOA Promotional Materials,
Publications and Events.  At its
option and expense, NOA may (a) utilize screen shots, Artwork and information
regarding the Licensed Products in Nintendo Power, Nintendo Power
Source, official Nintendo sponsored web sites or other advertising,
promotional or marketing media, which promote Nintendo products, services or
programs, and (b) exercise public performance rights in the Games and use
related trademarks and Artwork in connection with NOA sponsored contests,
tours, conventions, trade shows, press briefings and similar events which
promote Wii.


7.8           Nintendo Gateway System.  To promote and increase demand for games on
Nintendo video game systems, NOA licenses select games in various non-coin
activated commercial settings such as commercial airlines, cruise ships, rail
systems and hotels, where customers play games on specially adapted Nintendo
video game hardware referred to as the “Nintendo Gateway System”.  If NOA identifies


 


9





















 


a Game for possible license on the Nintendo Gateway
System, the parties agree to conduct good faith negotiations to determine
commercially reasonable terms for such participation.


8.                                      CONFIDENTIAL
INFORMATION


 


8.1           Definition.  Confidential Information means information
provided to LICENSEE by Nintendo or any third party working with Nintendo
relating to the hardware and software for Wii or the Development Tools,
including, but not limited to, (a) all current or future information, know-how,
techniques, methods, information, tools, emulator hardware or software,
software development specifications, proprietary manufacturing processes and/or
trade secrets, (b) any information on patents or patent applications, (c) any
business, legal, marketing, pricing or sales data or information, and (d) any
other information or data relating to development, design, operation,
manufacturing, marketing or sales. 
Confidential Information shall include all confidential information
disclosed, whether in writing, orally, visually, or in the form of drawings,
technical specifications, software, samples, pictures, models, recordings, or
other tangible items which contain or manifest, in any form, the above listed
information.  Confidential Information
shall not include (i) data and information which was in the public domain prior
to LICENSEE’s receipt of the same hereunder, or which subsequently becomes part
of the public domain by publication or otherwise, except by LICENSEE’s wrongful
act or omission, (ii) data and information which LICENSEE can demonstrate,
through written records kept in the ordinary course of business, was in its
possession without restriction on use or disclosure, prior to its receipt of
the same hereunder and was not acquired directly or indirectly from Nintendo
under an obligation of confidentiality which is still in force, and (iii) data
and information which LICENSEE can show was received by it from a third party
who did not acquire the same directly or indirectly from Nintendo and to whom
LICENSEE has no obligation of confidentiality.


8.2           Disclosures Required by Law.  LICENSEE shall be permitted to disclose
Confidential Information if such disclosure is required by an authorized
governmental or judicial entity, provided that LICENSEE shall notify NOA at
least thirty (30) days prior to such disclosure.  LICENSEE shall use its best efforts to limit
the disclosure to the greatest extent possible consistent with LICENSEE’s legal
obligations, and if required by NOA, shall cooperate in the preparation and
entry of appropriate protective orders.


8.3           Disclosure and Use.  NOA may provide LICENSEE with highly
confidential development information, Guidelines, Development Tools, systems,
specifications and related resources and information constituting and
incorporating the Confidential Information to assist LICENSEE in the
development of Games.  LICENSEE agrees to
maintain all Confidential Information as strictly confidential and to use such
Confidential Information only in accordance with this Agreement.  LICENSEE shall limit access to the
Confidential Information to LICENSEE’s employees, and Independent Contractors
that are in compliance with the requirements of Section 3.6 above, having a
strict need to know and shall advise such individuals of their obligation of
confidentiality as provided herein. 
LICENSEE shall require each such individual retain in confidence the
Confidential Information pursuant to a written non-disclosure agreement with
LICENSEE.  LICENSEE shall use its best
efforts to ensure that individuals who are permitted hereunder to work with or
otherwise having access to Confidential Information shall not disclose or make
any unauthorized use of the Confidential Information.


8.4           Agreement Confidentiality.  LICENSEE agrees that the terms, conditions
and contents of this Agreement shall be treated as Confidential
Information.  Any public announcement or
press release regarding this Agreement or the release dates for Games developed
by LICENSEE under this Agreement shall be subject to NOA’s prior written
approval.  The parties may disclose this
Agreement (a) to accountants, banks, financing sources, lawyers, parent
companies and related parties under substantially equivalent confidentiality
obligations, (b) in connection with any formal legal proceeding for the
enforcement of this Agreement, (c) as required by the regulations of the
Securities and Exchange Commission (“SEC”), provided that all Confidential
Information shall be redacted from such disclosures to the maximum extent
allowed by the SEC, and (d) in response to lawful process, subject to a written
protective order approved in advance by NOA.


 


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8.5           Notification Obligations.  LICENSEE shall promptly notify NOA of the
unauthorized use or disclosure of any Confidential Information by LICENSEE or
any of its employees, or any Independent Contractor or its employees, and shall
promptly act to recover any such information and prevent further breach of the obligations
herein.  The obligations of LICENSEE set
forth herein are in addition to and not in lieu of any other legal remedy that
may be available to NOA under this Agreement or applicable law.


8.6           Continuing Effect of the NDA.  The terms of this Section 8 supplement the
terms of the NDA, which shall remain in effect. 
In the event of a conflict between the terms of the NDA and this
Agreement, the provisions of this Agreement shall control.


9.                                      REPRESENTATIONS
AND WARRANTIES


 


9.1                                 LICENSEE’s Representations and Warranties. 
LICENSEE represents and warrants that:


(a)           it is a duly organized and validly
existing corporation and has full authority to enter into this Agreement and to
carry out the provisions hereof,


(b)           the execution, delivery and
performance of this Agreement by LICENSEE does not conflict with any agreement
or understanding to which LICENSEE may be bound, and


(c)           excluding the Intellectual Property
Rights, LICENSEE is either (i) the sole owner of all right, title and interest
in and to the trademarks, copyrights and all other Proprietary Rights
incorporated into the Game or the Artwork or used in the development,
advertising, marketing and sale of the Licensed Products or the Marketing
Materials, or (ii) the holder of such rights, including trademarks, copyrights
and all other Proprietary Rights which belong to any third party but have been
licensed from such third party by LICENSEE, as are necessary for incorporation
into the Game or the Artwork or as are used in the development, advertising, marketing
and sale of the Licensed Products or the Marketing Materials under this
Agreement.


9.2                                 NOA’s Representations and Warranties. 
NOA represents and warrants that:


(a)           it is a duly organized and validly
existing corporation and has full authority to enter into this Agreement and to
carry out the provisions hereof, and


(b)           the execution, delivery and
performance of this Agreement by NOA does not conflict with any agreement or
understanding to which NOA may be bound.


9.3                                 INTELLECTUAL PROPERTY RIGHTS DISCLAIMER. 
NOA (ON ITS OWN BEHALF AND ON BEHALF OF NINTENDO CO., LTD. AND ITS
AFFILIATES, LICENSORS, SUPPLIERS AND SUBCONTRACTORS) EXPRESSLY DISCLAIMS ALL
REPRESENTATIONS AND WARRANTIES CONCERNING THE SCOPE OR VALIDITY OF THE
INTELLECTUAL PROPERTY RIGHTS.  NOA (ON
ITS OWN BEHALF AND ON BEHALF OF NINTENDO CO., LTD. AND ITS AFFILIATES,
LICENSORS, SUPPLIERS AND SUBCONTRACTORS) EXPRESSLY DISCLAIMS ANY WARRANTY THAT
THE DESIGN, DEVELOPMENT, ADVERTISING, MARKETING OR SALE OF THE LICENSED
PRODUCTS OR THE USE OF THE INTELLECTUAL PROPERTY RIGHTS BY LICENSEE WILL NOT
INFRINGE UPON ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER PROPRIETARY RIGHTS OF A
THIRD PARTY.  ANY WARRANTY THAT MAY BE
PROVIDED IN ANY APPLICABLE PROVISION OF THE UNIFORM COMMERCIAL CODE OR ANY
OTHER COMPARABLE LAW OR STATUTE IS EXPRESSLY DISCLAIMED.  LICENSEE HEREBY ASSUMES THE RISK OF
INFRINGEMENT.


9.4                                 GENERAL DISCLAIMER. 
NOA (ON ITS OWN BEHALF AND ON BEHALF OF NINTENDO CO., LTD. AND ITS
AFFILIATES, LICENSORS, SUPPLIERS AND SUBCONTRACTORS) EXPRESSLY DISCLAIMS ANY
AND ALL WARRANTIES WITH RESPECT TO THE BULK GOODS AND THE LICENSED PRODUCTS,
INCLUDING, WITHOUT LIMITATION, THE SECURITY TECHNOLOGY.  LICENSEE PURCHASES AND ACCEPTS ALL BULK GOODS
AND LICENSED PRODUCTS ON AN “AS IS” AND ‘WHERE IS” BASIS.  NOA (ON ITS OWN BEHALF AND ON BEHALF OF
NINTENDO CO., LTD.


 


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AND ITS AFFILIATES, LICENSORS, SUPPLIERS AND
SUBCONTRACTOR) EXPRESSLY DISCLAIMS ALL WARRANTIES UNDER THE APPLICABLE LAWS OF
ANY COUNTRY, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A GENERAL OR PARTICULAR PURPOSE.


9.5                                 LIMITATION OF LIABILITY. 
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER NOA NOR NINTENDO CO.,
LTD. (NOR THEIR AFFILIATES, LICENSORS, SUPPLIERS OR SUBCONTRACTORS) SHALL BE
LIABLE FOR LOSS OF PROFITS, OR FOR ANY SPECIAL, PUNITIVE, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF LICENSEE OR ITS CUSTOMERS ARISING OUT OF OR RELATED TO
THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE BREACH OF THIS AGREEMENT BY
NOA, THE MANUFACTURE OF THE BULK GOODS OR THE USE OF THE BULK GOODS ON ANY
NINTENDO VIDEO GAME SYSTEM BY LICENSEE OR BY ANY END USER.


10.                               INDEMNIFICATION


 


10.1                           Claim.  “Claim” means
any and all third party claims, demands, actions, suits, proceedings, losses,
liabilities, damages, expenses and costs, including, without limitation,
reasonable attorneys’ fees and costs and any expenses incurred in the
settlement or avoidance of any such claim. 
“Claim” shall specifically include civil, criminal, and regulatory matters,
and those brought by any third party (including governmental authorities or
agencies) under any federal, state, or foreign law or regulation, or the rules
of any self-regulatory body (e.g., ESRB).


10.2                           LICENSEE’s Indemnification. 
LICENSEE shall indemnify and hold harmless NOA and Nintendo Co., Ltd.
(and any of their respective affiliates, subsidiaries, licensors, suppliers,
officers, directors, employees or agents) from any Claims which are alleged to
result from or be in connection with:


(a)           a breach by LICENSEE of any of the
provisions in this Agreement,


(b)           any infringement of a third party’s
Proprietary Rights as a result of the design, development, advertising,
marketing, sale or use of any aspect of the Licensed Products, Promotional
Materials or the Marketing Materials,


(c)           a defect, failure to warn, bodily
injury (including death) or other personal or property damage arising out of,
or in connection with, the design, development, advertising, marketing, sale or
use of any aspect of the Licensed Products, and


(d)           the design, development, advertising,
marketing, sale or use of any aspect of the Licensed Products, Promotional
Materials or the Marketing Materials.


NOA
and LICENSEE shall give prompt Notice to the other of any Claim which is or
which may be
subject to indemnification under this Section 10.  With respect to any such Claim, LICENSEE, as
indemnitor, shall have the right to select counsel and to control the defense
and/or settlement thereof.  NOA may, at
its own expense, participate in such action or proceeding with counsel of its
own choice.  LICENSEE shall not enter
into any settlement of any Claim in which (i) NOA or Nintendo Co., Ltd. has
been named as a party, or (ii) Intellectual Property Rights have been asserted,
without NOA’s prior written consent.  NOA
shall provide reasonable assistance to LICENSEE in its defense of any Claim.


10.3                           LICENSEE’s Insurance. 
LICENSEE shall, at its own expense, obtain a comprehensive policy of
general liability insurance (including coverage for advertising injury and
product liability Claims) from an insurance company rated at least B+ by A.M.
Best.  Such policy of insurance shall be
in an amount of not less than Five Million Dollars ($5,000,000 US) on a per
occurrence basis and shall provide for adequate protection against any
Claims.  Such policy shall name NOA and
Nintendo Co., Ltd. as additional insureds and shall specify it may not be
canceled without thirty (30) days’ prior written Notice to NOA.  A Certificate of Insurance shall be provided
to NOA’s Licensing Department not later than the date of the initial order of
Bulk Goods under this Agreement.  If
LICENSEE fails to provide NOA’s Licensing


 


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Department with such Certificate of Insurance or fails
to maintain such insurance at any time during the Term and for a period of two
(2) years thereafter, NOA, in its sole discretion may 1) terminate this
Agreement in accordance with Section 13.2 herein; and/or 2) secure comparable
insurance, at LICENSEE’s expense, for the sole benefit and protection of NOA
and Nintendo Co., Ltd. .


10.4                           Suspension of Production. 
In the event NOA deems itself at risk with respect to any Claim under
this Section 10, NOA may, at its sole option, suspend production, delivery or
order acceptance for any Bulk Goods, in whole or in part, pending resolution of
such Claim.


11.                               PROTECTION
OF PROPRIETARY RIGHTS


 


11.1                           Joint Actions against Infringers. 
LICENSEE and NOA may agree to jointly pursue cases of infringement
involving the Licensed Products, as such Licensed Products will contain
Proprietary Rights owned by each of them. 
Unless the parties otherwise agree, or unless the recovery is expressly
allocated between them by the court, in the event of such an action, any
recovery shall be used first to reimburse LICENSEE and NOA for their respective
reasonable attorneys’ fees and costs, pro rata, and any remaining recovery
shall be distributed to LICENSEE and NOA, pro rata, based upon the fees and
costs incurred in bringing such action.


11.2                           Actions by LICENSEE. 
LICENSEE, without the consent of NOA, may bring any action or proceeding
relating to an infringement or potential infringement of LICENSEE’s Proprietary
Rights in the Licensed Products. 
LICENSEE shall make reasonable good faith efforts to inform NOA of such
actions in a timely manner.  LICENSEE
will have the right to retain all proceeds it may derive from any recovery in
connection with such actions.


11.3                           Actions by NOA. 
NOA, without the consent of LICENSEE, may bring any action or proceeding
relating to an infringement or potential infringement of NOA’s Intellectual
Property Rights in the Licensed Products. 
NOA shall make reasonable, good faith efforts to inform LICENSEE of such
actions likely to affect LICENSEE’s rights in a timely manner.  NOA will have the right to retain all
proceeds it may derive from any recovery in connection with such actions.


12.                               ASSIGNMENT


 


12.1                           Definition.  “Assignment”
means every type and form of assignment, transfer, sale, sublicense,
delegation, encumbrance, pledge and/or hypothecation of LICENSEE’s rights or
obligations under this Agreement, including, but not limited to, (a) a
voluntary assignment, transfer, sale, sublicense, delegation, encumbrance,
pledge and/or hypothecation by LICENSEE of all or any portion of its rights or
obligations under this Agreement, (b) the assignment, transfer, sale,
sublicense, delegation, encumbrance, pledge and/or hypothecation of all or any
portion of LICENSEE’s rights or obligations under this Agreement to or by
LICENSEE’s trustee in bankruptcy, receiver, or other individual or entity
appointed to control or direct the business and affairs of LICENSEE, (c) an
involuntary assignment, transfer, sale, sublicense, delegation, encumbrance,
pledge or hypothecation of all or a portion of LICENSEE’s rights or obligations
under this Agreement, including but not limited to a foreclosure by a third
party upon assets of LICENSEE, (d) the merger or consolidation of LICENSEE if
LICENSEE is a corporation, and (e) any other means or method whereby rights or
obligations of LICENSEE under this Agreement are sold, assigned or transferred
to another individual or entity for any reason. Assignment also includes the
sale, assignment, transfer or other event affecting a change in the controlling
interest of LICENSEE, whether by sale, transfer or assignment of shares in
LICENSEE, or by sale, transfer or assignment of partnership interests in
LICENSEE, or otherwise.


12.2                           No Assignment by LICENSEE. 
This Agreement and the subject matter hereof are personal to
LICENSEE.  No Assignment of LICENSEE’s
rights or obligations hereunder shall be valid or effective without NOA’s prior
written consent, which consent may be withheld by NOA for any reason whatsoever
in its sole discretion.  In the event of
an attempted Assignment in violation of this provision, NOA shall have the
right at any time, at its sole option, to immediately terminate this
Agreement.  Upon


 


13





















 


such termination, NOA shall have no further obligation
under this Agreement to LICENSEE or to LICENSEE’s intended or purported
assignee.


12.3                           Proposed Assignment. 
Prior to any proposed Assignment of this Agreement, LICENSEE shall give
NOA not less than thirty (30) days prior written Notice thereof, which Notice
shall disclose the name of the proposed assignee, the proposed effective date
of the Assignment and the nature and extent of the rights and obligations that
LICENSEE proposes to assign.  NOA may, in
its sole discretion, approve or disapprove such proposed Assignment. Unless
written consent is given by NOA to a proposed Assignment, any attempted or
purported Assignment shall be deemed disapproved and NOA shall have the
unqualified right, in its sole discretion, to terminate this Agreement at any
time.  Upon termination, NOA shall have
no further obligation under this Agreement to LICENSEE or to LICENSEE’s
intended or purported assignee.


12.4                           LICENSEE’s Obligation of Non-Disclosure. 
LICENSEE shall not (a) disclose Nintendo’s Confidential Information to
any proposed assignee of LICENSEE, or (b) permit access to Nintendo’s
Confidential Information by any proposed assignee or other third party, without
the prior written consent of NOA to such disclosure.


13.                               TERM
AND TERMINATION


 


13.1                           Term.  This
Agreement shall commence on the Effective Date and continue for the Term,
unless earlier terminated as provided for herein.


13.2                           Default or Breach. 
In the event that either party is in default or commits a breach of this
Agreement, which is not cured within thirty (30) days after Notice thereof,
then this Agreement shall automatically terminate on the date specified in such
Notice.


13.3                           Bankruptcy.  At NOA’s
option, this Agreement may be terminated immediately and without Notice in the
event that LICENSEE (a) makes an assignment for the benefit of creditors, (b)
becomes insolvent, (c) files a voluntary petition for bankruptcy, (d)
acquiesces to any involuntary bankruptcy petition, (e) is adjudicated as a
bankrupt, or (f) ceases to do business.


13.4                           Termination Other Than by Breach. 
Upon the expiration of this Agreement or its termination other than by
LICENSEE’s breach, LICENSEE shall have a period of one hundred eighty (180)
days to sell any unsold Licensed Products. 
All Licensed Products in LICENSEE’s control following the expiration of
such sell-off period shall be destroyed by LICENSEE within ten (10) days and
Notice of such destruction (with proof certified by an officer of LICENSEE)
shall be delivered to NOA.


13.5                           Termination by LICENSEE’s Breach.  If this Agreement is terminated by NOA as a
result of a breach of its terms and conditions by LICENSEE, LICENSEE shall
immediately cease all distribution, advertising, marketing or sale of any
Licensed Products.  All Bulk Goods and
Licensed Products in LICENSEE’s control as of the date of such termination
shall be destroyed by LICENSEE within ten (10) days and Notice of such
destruction (with proof certified by an officer of LICENSEE) shall be delivered
to NOA.


13.6                           Breach of NDA or other NOA License Agreements. 
At NOA’s option, any breach by LICENSEE of (a) the NDA, or (b) any other
license agreement between NOA and LICENSEE relating to the development of games
for any Nintendo video game system, which breach is not cured within the time
period for cure allowed under the applicable agreement, shall be considered a
material breach of this Agreement entitling NOA to terminate this Agreement in
accordance with Section 13.5 herein.


13.7                           No Further Use of the Intellectual
Property Rights.  Upon expiration or termination of this
Agreement, LICENSEE shall cease all use of the Intellectual Property Rights for
any purpose, except as may be required in connection with the sale of the
Licensed Products authorized under Section 13.4 herein.  LICENSEE shall, within thirty (30) days of
expiration or termination, (a) return to NOA all Development Tools provided to
LICENSEE by Nintendo, and (b) return to NOA or destroy any and all


 


14





















 


copies of materials constituting, relating to, or
disclosing any Confidential Information, including but not limited to
Guidelines, writings, drawings, models, data, and tools, whether in LICENSEE’s
possession or in the possession of any past or present employee, agent or
Independent Contractor who received the information through LICENSEE.  Proof of such return or destruction shall be
certified by an officer of LICENSEE and promptly provided to NOA.


13.8         Termination by NOA’s Breach.  If this Agreement is terminated by LICENSEE
as a result of a breach of its terms or conditions by NOA, LICENSEE may
continue to sell the Licensed Products in the Territory until the expiration of
the Term, at which time the provisions of Section 13.4 shall apply.


14.                               GENERAL
PROVISIONS


 


14.1         Export Control.  LICENSEE agrees to comply with the export
laws and regulations of the United States and any other country with
jurisdiction over the Intellectual Property Rights, the Licensed Products or
the Development Tools.


14.2         Force Majeure.  Neither party shall be liable for any breach
of this Agreement occasioned by any cause beyond the reasonable control of such
party, including governmental action, war, riot or civil commotion, fire,
natural disaster, labor disputes, restraints affecting shipping or credit,
delay of carriers, inadequate supply of suitable materials, or any other cause
which could not with reasonable diligence be controlled or prevented by the
parties.  In the event of material
shortages, including shortages of materials or production facilities necessary
for production of the Bulk Goods, NOA reserves the right to allocate such
resources among itself and its licensees.


14.3         Records and Audit.  During the Term and for a period of two (2)
years thereafter, LICENSEE agrees to keep accurate, complete and detailed
records relating to the use of the Confidential Information, the Development
Tools and the Intellectual Property Rights. 
Upon reasonable Notice to LICENSEE, NOA may, at its expense, audit
LICENSEE’s records, reports and other information related to LICENSEE’s
compliance with this Agreement; provided, however, that NOA shall not, during
the course of the audit, access LICENSEE’s source code, development plans,
marketing plans, internal business plans or other items deemed confidential by
LICENSEE, except to the extent such materials incorporate, disclose or
reference Nintendo’s Confidential Information or Intellectual Property Rights.


14.4         Waiver, Severability Integration,
and Amendment.  The failure of a
party to enforce any provision of this Agreement shall not be construed to be a
waiver of such provision or of the right of such party to thereafter enforce
such provision.  In the event that any
term, clause or provision of this Agreement shall be construed to be or adjudged
invalid, void or unenforceable, such term, clause or provision shall be
construed as severed from this Agreement, and the remaining terms, clauses and
provisions shall remain in effect. 
Together with the NDA, this Agreement constitutes the entire agreement
between the parties relating to the subject matter hereof.  All prior negotiations, representations,
agreements and understandings are merged into, extinguished by and completely
expressed by this Agreement and the NDA. 
Any amendment to this Agreement shall be in writing, signed by both
parties.


14.5         Survival.  In addition to those rights specified
elsewhere in this Agreement, the rights and obligations set forth in Sections
3, 8, 9, 10, 11, 12.4, 13.4, 13.7, 13.8 and 14 shall survive any expiration or
termination of this Agreement to the degree necessary to permit their complete
fulfillment or discharge.


14.6         Governing Law and Venue.  This Agreement shall be governed by the laws
of the State of Washington, without regard to its conflict of laws
principles.  Any legal actions (including
judicial and administrative proceedings) with respect to any matter arising
under or growing out of this Agreement, shall be brought in a court of
competent jurisdiction in King County, Washington.  Each party hereby consents to the
jurisdiction and venue of such courts for such purposes.


14.7         Equitable Relief.  LICENSEE acknowledges that in the event of
its breach of this Agreement, no adequate remedy at law may be available to NOA
and that NOA shall be entitled to seek injunctive or other equitable relief in
addition to any relief available at law.


 


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14.8         Attorneys’ Fees.  In the event it is necessary for either party
to this Agreement to undertake legal action to enforce or defend any action
arising out of or relating to this Agreement, the prevailing party in such
action shall be entitled to recover from the other party all reasonable
attorneys’ fees, costs and expenses relating to such legal action or any appeal
therefrom.


14.9         Counterparts and Signature by
Facsimile.  This Agreement may be
signed in counterparts, which shall together constitute a complete
Agreement.  A signature transmitted by
facsimile shall be considered an original for purposes of this Agreement.


IN WITNESS WHEREOF, the parties have entered into this
Agreement on the dates set forth below.


 


	
  NOA:

  	
   

  	
  LICENSEE :

  
	
  NINTENDO OF AMERICA INC.

  	
   

  	
  ACTIVISION PUBLISHING, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ James R. Cannataro

  	
   

  	
  By:

  	
  /s/ Greg Deutsch

  
	
  Name:

  	
  James R. Cannataro

  	
   

  	
  Name:

  	
  Greg Deutsch

  
	
  Title:

  	
  Executive VP, Administration

  	
   

  	
  Title:

  	
  Vice President, Business and Legal Affairs

  
	
  Date:

  	
  Sept. 26, 2007

  	
   

  	
  Date:

  	
  Sept. 12, 2007

  



 


 


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