Exhibit 10.1


CONFIDENTIAL LICENSE AGREEMENT

FOR NINTENDO DS (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: General Counsel (Fax: (310) 255-2152).  NOA and LICENSEE agree as follows:


1.             RECITALS


1.1           NOA markets and sells advanced
design, high-quality video game systems, including the Nintendo DS system.


1.2           LICENSEE desires a license to use
highly proprietary programming specifications, development tools, trademarks
and other valuable intellectual property rights of NOA and its parent company,
Nintendo Co., Ltd. (collectively “Nintendo”), to develop, have manufactured,
advertise, market and sell video game software for play on the Nintendo DS
system.


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 design
specifications for the Game Card label and Printed Materials in the format
specified by NOA in the Guidelines.


2.2           “Bulk Goods” means the Game Cards
with Game Card labels affixed.


2.3           “Development Tools” means the
development kits, programming tools, emulators and other materials that may be
used in the development of Games under this Agreement.


2.4           “Effective Date” means October 11,
2004.


2.5           “Finished Product(s)” means the fully assembled and
shrink-wrapped Licensed Products, each including a Game Card,
Game Card label and Printed Materials.


2.6           “Game Card(s)” means custom card media specifically
manufactured under the terms of this Agreement for play on the Nintendo DS
system, incorporating semiconductor components in which a Game has been
stored.


2.7           “Game(s)” means the Nintendo DS version of an
interactive video game program, or other applications approved by Nintendo
(including source and object/binary code) developed  for the Nintendo DS system.


 

















 


2.8           “Guidelines” means the current
version or any future revision of the “Nintendo DS Packaging Guidelines”, “Nintendo
DS Development Manual” and related guidelines provided by NOA.


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


2.10         “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 Games for the Nintendo DS system
including “Nintendo®”, “Nintendo DSTM”, “ DSTM” and the “Official Nintendo Seal®”,
(b) select trade dress associated with the Nintendo DS system and licensed
Games for play thereon, (c) Proprietary Rights in the Security Technology
incorporated into the Game Cards, (d) rights in the Development Tools for use
in developing the Games, (e) patents or design registrations Nintendo in the
Confidential Information.


2.11         “Licensed Products” means (a) Finished Products, or
(b) Bulk Goods when fully assembled and shrink-wrapped with the Printed
Materials.


2.12         “Marketing Materials” means marketing, advertising or
promotional materials developed by or for LICENSEE (or subject to LICENSEE’S
approval) to 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 and print media or
materials.


2.13         “NDA” means the non-disclosure
agreement providing for the protection of Confidential Information related to
the Nintendo DS system previously entered into between NOA and LICENSEE.


2.14         “Notice” means any notice permitted or required under
this Agreement.  All notices shall be
sufficiently given when served or delivered, (b) transmitted by faL,bimile,
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.


2.15         “Price Schedule” means the current version or any
future revision of NOA’s schedule of purchase prices and minimum
order quantities for Finished Products and Bulk Goods.


2.16         “Printed Materials” means the Game Card label and
title sheet, user instruction booklet, poster, warranty card and LICENSEE
inserts incorporating the Artwork, together with a precautions booklet as
specified by NOA.


 


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2.17         “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.


2.18         “Reverse Engineer(ing)” means, without limitation, (a)
the x-ray, electronic scanning or 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.


2.19         “Security Technology” means, without limitation, any
security signature, bios, data scrambling, password, hardware security
apparatus, watermark, hologram, encryption, Digital Rights management
system, copyright management information system or any feature that facilitates
or limits compatibility with other hardware, software, or accessories or other
peripherals outside of the Territory or on a different video game system.


2.20         “Term” mean three (3) years from the
Effective Date.


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


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 Games for
manufacture, advertising, marketing and sale 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 the
Nintendo DS system.  LICENSEE recognizes
that the Games, Game Cards 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 that 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.


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


 


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(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 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,


(b)           modify, install or operate a Game on
any server or other device for the purpose of or resulting in the rental,
lease, loan or sale of rights of access to the Game,


(c)           emulate, interoperate, interface or
link a Game for operation or use with any hardware platform, software program,
accessory, computer language, computer environment, chip instruction set,
consumer electronics device, telephone, ceephone, RDA, or other device,
including for purposes of data interchange, password usage or interactive video
game play, other than a Nintendo DS system, an application approved by
Nintendo, or the Development Tools,


(d)           emulate any past, current or future
Nintendo brand video game system, or any portion thereof, in software or
hardware or any combination thereof,


(e)           embed, incorporate, or store a Game
in any media or format except the Game Card format utilized by the Nintendo DS
system, 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 circumvent 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 the
Reverse Engineering of all or any part of the Development Tools 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


 


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identification of any third party
co-publisher for a Game on any Licensed Product Game Card case or Game Card
label, 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 Card 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 Card case and Game Card
label as it appears in the preamble of this Agreement.


3.5           Development Tools.  Nintendo 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 provided to LICENSEE by Nintendo shall
be subject to the terms of this Agreement and any separate license or purchase
agreement required by Nintendo.  LICENSEE
acknowledges the exclusive interest of Nintendo 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.  Any tools developed or derived by LICENSEE as
a result of a study of the performance, design or operation of the Development
Tools shall be considered derivative works 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.


4.             SUBMISSION OF GAME
AND ARTWORK FOR APPROVAL


4.1           Development and Sale of the Games.  LICENSEE may develop Games and have
manufactured, advertise, market and sell Licensed Products for play on the
Nintendo DS system only in accordance with this Agreement.


4.2           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 been approved by NOA and has executed a written confidentiality
agreement with NOA relating to the Nintendo DS system.


4.3           Delivery of Completed Game.  Upon completion of a Game, LICENSEE shall
deliver a prototype of the Game to NOA in a format specified in the Guidelines,
together with 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.  NOA shall
promptly evaluate the Game with regard to its technical compatibility with and
error-free operation on the Nintendo DS system. 
LICENSEE is responsible for ensuring that the Game and any other content
to be included on the Game Card complies with the Advertising Code of Conduct
of the Entertainment Software Ratings Board (“ESRB”) and that the Game has been
rated EC, E, M or T by the ESRB. 
LICENSEE shall provide NOA with a related certificate of rating for the
Game from the ESRB.


 


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4.4           Approval of Completed Game.  NOA shall, within a reasonable period of time
after receipt, approve or disapprove each submitted Game.  If a Game 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 a revised Game
to NOA for approval.  NOA shall not
unreasonably withhold or delay its approval of any Game.  The approval of a Game by NOA shall not
relieve LICENSEE of its sole responsibility for the development, quality and
operation of the Game or in any way create any warranty for a Game or a
Licensed Product by NOA.


4.5           Submission of Artwork.  Upon submission of a completed Game to NOA,
LICENSEE shall prepare and submit to NOA the Artwork for the proposed Licensed
Product.  Within seven (7) 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
development and quality of the Artwork or in any way create any warranty for
the Artwork or any Licensed Product by NOA.


4.6           Artwork for Bulk Goods.  If LICENSEE submits an order for Bulk Goods,
all Artwork shall be submitted to NOA in advance of NOA’s acceptance of the
order and no production of Printed Materials shall occur until such Artwork has
been approved by NOA under Section 4.5 herein.


5.             ORDER PROCESS, PURCHASE PRICE, PAYMENT AND DELIVERY


5.1           Submission of Orders by LICENSEE.  LICENSEE may at any time submit written
purchase orders to NOA for any approved Licensed Product title.  The purchase order shall specify whether it
is for Finished Products or Bulk Goods. 
The terms and conditions of this Agreement shall control over any
contrary terms of such purchase order or any other written documents submitted
by LICENSEE.  All orders are subject to
acceptance by NOA in Redmond, WA.


5.2           Purchase Price and Minimum Order
Quantities.  The purchase price and
minimum order quantities for Finished Products and Bulk Goods shall be set
forth in NOA’s then current Price Schedule. 
The purchase price includes the cost of manufacturing 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 are included in the purchase price and all such taxes are
the responsibility of LICENSEE (except for taxes imposed on NOA’s income).  The Price Schedule is subject to change by
NOA at any time, 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.


 


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5.3           Payment.  Upon placement of an order with NOA, LICENSEE
shall pay the full purchase price to NOA either (a) by placement of an
irrevocable letter of credit in favor of NOA 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 NOA’s designated account.  All associated banking charges are the
responsibility of the LICENSEE.


5.4           Shipment and Delivery.  All Licensed Products shall be delivered to
LICENSEE EXW Ex works Japan (as defined by Incoterms 2000), or such other
delivery point specified by NOA, with shipment at LICENSEE’S direction and
expense.  Orders may be delivered by NOA
in partial shipments, each directed to not more than two (2) destinations
designated by LICENSEE within the Territory. 
Title to the Licensed Products shall vest.


6.             MANUFACTURE OF THE LICENSED PRODUCT 


6.1           Manufacturing.  Nintendo shall be the exclusive source for
the manufacture of the Game Cards, and shall control 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.


6.2           Manufacture of the Licensed
Products.  Upon acceptance by NOA of
a purchase order for an approved Licensed Product title and payment as provided
for under Section 5.3 herein, NOA will arrange for the manufacture of Finished
Product or Bulk Goods, as specified in LICENSEE’S purchase order.


6.3           Security Features.  The final release version of the Game, Game
Cards and Printed Materials shall include such Security Technology as Nintendo,
in its sole discretion and at its sole expense, may deem necessary or
appropriate.


6.4           Production of Bulk Goods Printed
Materials.  For Bulk Goods, LICENSEE
shall arrange Goods, LICENSEE shall assemble the Game Cards and Printed
Materials into the Licensed Products. 
Games may be sold or otherwise distributed by LICENSEE only in fully
assembled and shrink-wrapped Licensed Products.


6.5           Prior Approval of LICENSEE’S
Independent Contractor.   Prior to
the placement of a purchase order for Bulk Goods, LICENSEE shall obtain NOA’s
approval of any Independent Contractors selected to perform LICENSEE’S
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 the facilities of the Independent Contractors, and (c) be present to
supervise any work on the Licensed Products to be done by any Independent Contractors.  If at any time NOA deems an 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 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 the Game Card case, or select components of the
Printed Materials, which sources shall be deemed pre-approved in accordance 


 


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with this Section 6.5. 
LICENSEE shall comply with all sourcing requirements established by NOA.


6.6           NOA Inserts for Bulk Goods.  NOA, at its option and at its sole expense,
may provide LICENSEE with NOA produced promotional materials (as provided for
at Section 7.7(a) herein), that LICENSEE agrees to include in the assembly of
the Licensed Products.


6.7           Sample Printed Materials and Bulk
Goods.  Within a reasonable period of
time after LICENSEE’S assembly of the initial order for a Bulk Goods title,
LICENSEE shall provide NOA with (a) one (1) sample of the fully assembled,
shrink-wrapped Licensed Product, and (b) fifty (50) samples of LICENSEE
produced Printed Materials for such Licensed Product.


6.8           Retention of Sample Licensed
Products by Nintendo.  Nintendo may,
at its own expense, manufacture reasonable quantities of the Game Cards or the
Licensed Products to be used for archival purposes, legal proceedings against
infringers of the Intellectual Property Rights or for other lawful purposes
(but not for resale).


6.9           Retention of User Instruction
Booklet by NOA.  For use in training
consumer support personnel, product orientation and other consumer support
activities, as well as for archival purposes, NOA may (a) retain (or request
that LICENSEE provide to NOA) a reasonable number of copies of the user
instruction booklet for each Licensed Product, and (b) make a reasonable number
of copies of the user instruction booklet for each Licensed Product.


7.             MARKETING AND
ADVERTISING 


7.1           Approval of Marketing Materials.  LICENSEE represents and warrants that the
Marketing Materials shall (a) be of high quality and comply with the
Guidelines, (b) comply with all ESRB advertising, marketing and merchandising
guidelines, and (c) comply with all applicable laws and regulations in those
jurisdictions in the Territory where they will be used or distributed.  All LICENSEE controlled websites featuring
the Games shall adopt a privacy policy that is consistent with the principles
and guidelines issued by the ESRB and that complies with 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 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 Licensed
Products that are bundled with (a) any peripheral designed for use with the
Nintendo DS system that has not been licensed or approved in writing by NOA, or
(b) any


 


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other product or service where Nintendo’s sponsorship, association,
approval or endorsement might be suggested by the bundling of 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.


7.4           Business Facilities.  LICENSEE agrees to develop and maintain (a)
suitable office under this Agreement, (b) necessary warehouse, distribution,
marketing, sales, collection and credit operations to facilitate proper
handling of the Licensed Products, and (c) customer service and Game
counseling, including telephone service, to adequately support the Licensed
Products.


7.5           No Sales Outside the Territory.  LICENSEE represents and warrants 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, NOA may (a) insert in the Printed Materials for the Licensed Products
promotional materials concerning Nintendo Power magazine or other NOA products,
services or programs, (b) 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 that promotes Nintendo products, services or programs, and (c)
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 that promote the Nintendo DS system.


7.8           Nintendo Gateway System.  To promote and increase demand for games on
Nintendo video game systems, NOA licenses a system (the “Nintendo Gateway
System”) in various non-coin activated customers play games on specially
adapted Nintendo video game systems. If NOA identifies a Game for possible
license on the Nintendo Gateway System, the parties agree to conduct good faith
negotiations toward including the Game in the Nintendo Gateway System.


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 the Nintendo DS system 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 and/or trade secrets,
(b) any patents or patent applications, (c) any business, marketing 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


 


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writing, orally, visually, or in the form of drawings, technical
manifest, in any form, the above listed information.  Confidential Information shall not include
(i) data and information that was in the public domain prior to LICENSEE’S
receipt of the same hereunder, or that subsequently becomes part of the public
domain by publication or otherwise, except by LICENSEE’S wrongful act or
omission, (ii) data and information that 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 that is still in force, and (iii) data and
information that 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 NOA is given Notice thereof at
least thirty (30) days prior to such disclosure, or such lesser period if
required.  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 CfCI:NSEE’s 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 having a strict need to know
and shall advise such employees of their obligation of confidentiality as
provided herein.  LICENSEE shall require
each such employee to retain in confidence the Confidential Information
pursuant to a written non-disclosure agreement between LICENSEE and such
employee.  LICENSEE shall use its best
efforts to ensure that its employees working with or otherwise having access to
Confidential Information shall not disclose or make any unauthorized use of the
Confidential Information.


8.4           No Disclosure to Independent
Contractors.  LICENSEE shall not
disclose the Confidential Information to any Independent Contractor without the
prior written consent of NOA.  Any
Independent Contractor seeking access to Confidential Information shall be
required to enter into a written non-disclosure agreement with NOA prior to
receiving any access to or disclosure of the Confidential Information from
either LICENSEE or NOA.


8.5           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
regarding NOA shall be redacted from such


 


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disclosures to the maximum extent allowed by the SEC, (d) in response
to lawful process, subject to a written protective order approved in advance by
NOA, and (e) to a third party proposing to enter into a business transaction
with LICENSEE or with NOA, but only to the extent reasonably necessary for
carrying out the proposed transaction and only under terms of mutual
confidentiality.


8.6           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.


8.7           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 terms 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 other intellectual property rights
used on or in association with the development, advertising, marketing and sale
of the Licensed Products and the Marketing Materials, or (ii) the holder of
such rights to the trademarks, copyrights and other intellectual property
rights that have been licensed from a third party as are necessary for the
development, advertising, marketing and sale of the Licensed Products and 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 BY NOA.   NOA MAKES NO
REPRESENTATION OR WARRANTY CONCERNING THE SCOPE OR VALIDITY OF THE INTELLECTUAL
PROPERTY RIGHTS.   NOA DOES NOT WARRANT
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 PATENT, COPYRIGHT, TRADEMARK OR OTHER PROPRIETARY RIGHTS OF A
THIRD PARTY.  


 


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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 BY NOA.   NOA DISCLAIMS ANY AND ALL WARRANTIES WITH
RESPECT TO THE LICENSED PRODUCTS, INCLUDING, WITHOUT LIMITATION, THE SECURITY
TECHNOLOGY.   LICENSEE PURCHASES AND
ACCEPTS ALL LICENSED PRODUCTS ON AN “AS IS” AND “WHERE IS” BASIS.   NOA 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. (OR THEIR RESPECTIVE AFFILIATES, LICENSORS
OR SUPPLIERS) 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 LICENSED PRODUCTS OR
THE USE OF THE LICENSED PRODUCTS ON ANY NINTENDO VIDEO GAME SYSTEM BY LICENSEE
OR ANY END USER.


10.          INDEMNIFICATION 


10.1         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, 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, that result from or
are in connection with:


(a)           a breach of any of the provisions,
representations or warranties undertaken by LICENSEE 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 the Licensed Products or the Marketing Materials,


(c)           any claims alleging 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 of-the Licensed Products, and


(d)           any federal, state or foreign civil
or criminal actions relating to the design, development, advertising,
marketing, sale or use of the Licensed Products or the Marketing Materials.


NOA and LICENSEE shall give prompt Notice to the other
of any indemnified claim under this Section 10.1.  With respect to any third party claim subject
to this indemnity clause, LICENSEE, as indemnitor, shall have the right to
select counsel and to control the defense and/or settlement 


 


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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 such claim in which (i) NOA or Nintendo Co.,
Ltd. has been named as a party, or (ii) claims relating to the Intellectual
Property Rights have been asserted, without NOA’s prior written consent.   NOA shall provide reasonable assistance to
LICENSEE in its defense of any such claim.


10.2         LICENSEE’S Insurance.   LICENSEE shall, at its own expense, obtain a
commercial general liability insurance policy (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 USD) on a per occurrence basis (not claims made) and shall provide
for adequate protection against any suits, claims, loss or damage arising out
of or relating to the Licensed Products. 
Such policy shall name NOA and Nintendo Co., Ltd. as additional insureds
and shall specify that 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 Licensed Products under this Agreement.  If LICENSEE fails to provide NOA’s Licensing
Department with period of two (2) years thereafter, NOA, in its sole discretion
may 1) terminate this Agreement in accordance with Section 13.2 herein; or 2)
secure comparable insurance for the benefit of NOA and Nintendo Co., Ltd. only,
and not for Licensee, at LICENSEE’S expense.


10.3         Suspension of Production.   In the event NOA deems itself at risk with
respect to any claim, action or proceeding under this Section 10, NOA may, at
its sole option, suspend production, delivery or order acceptance for any
Licensed Products, in whole or in part, pending resolution of such claim,
action or proceeding.


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 incurred in
bringing such action, 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 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 the Intellectual Property Rights.   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 


 


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obligations under this Agreement, including, but not
limited to, (a) a voluntary assignment, transfer, sale, sublicense, 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 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 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
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 -Lb) 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 shall continue for the Term, unless earlier terminated as
provided for herein, or extended by a written amendment to this Agreement.


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


 


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13.3         Bankruptcy.   At NOA’s option, this Agreement may be
terminated immediately and, (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 (a) the expiration of this Agreement,
(b) its termination other than by LICENSEE’s breach, or (c) termination of this
Agreement by NOA after one hundred twenty days (120) Notice to LICENSEE in the
event NOA reasonably believes that LICENSEE has developed, marketed, or sold a
product that infringes any intellectual property rights of NOA or its parent
company, Nintendo Co., Ltd., anywhere in the world (provided that if the
parties are able to resolve such alleged infringement within such 120 day
period, such termination shall not take effect), 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 proof of such destruction (certified by an officer of
LICENSEE) shall be provided 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 Licensed
Products in LICENSEE’s control as of the date of such termination shall be
destroyed by LICENSEE within ten (10) days and proof of such destruction
(certified by an officer of LICENSEE) shall be provided 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 that 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 and/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 Licensed Products authorized under Section 13.4 herein.   LICENSEE shall, within thirty (30) days
thereafter, return or destroy all Guidelines, writings, drawings, models, data,
tools and other materials and things in LICENSEE’s possession or in the
possession of any past or present employee, agent or contractor receiving the
information through LICENSEE, that constitute or relate to or disclose any
Confidential Information, without making copies or otherwise retaining any such
information.   Proof of any 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 Licensed 


 


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Products, Confidential Information, Intellectual
Property Rights, Development Tools or either party.


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 inadequate supply of
suitable materials or any other cause that 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 Licensed Products, 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 related to the development and sale of the Licensed Products and the
Marketing Materials.   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.


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 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 that may reasonably be interpreted or construed as
surviving, the rights and obligations set forth in Sections 3, 8, 9, 10, 13 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 action (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.


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.


 


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14.9         Counterparts and Signature by
Facsimile.   This Agreement may be
signed in counterparts, that 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/ George L. Rose

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  James R. Cannataro

  	
   

  	
  Name:

  	
  George L. Rose

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Executive VP, Administration

  	
   

  	
  Title:

  	
  Sr. VP and General Counsel

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  11/15/2004

  	
   

  	
  Date:

  	
   

  



 


 


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