Exhibit 10.1


 


ALL SECTIONS MARKED WITH ASTERISKS
REFLECT PORTIONS THAT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT IN ACCORDANCE WITH RULE 24b-2 UNDER THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED.


PLAYSTATION 2®
LICENSED  PUBLISHER  AGREEMENT


 


THIS AGREEMENT RELATES TO THE
PUBLISHING OF APPLICATION SOFTWARE FOR THE PLAYSTATION®2 COMPUTER ENTERTAINMENT SYSTEM.  ALL TERMS USED HEREIN ARE SPECIFIC TO THE
PLAYSTATION®2 SYSTEM AND NOT TO SONY’S PREDECESSOR “PLAYSTATION”
VIDEO ENTERTAINMENT SYSTEM.  PUBLISHING
RIGHTS FOR SUCH PREDECESSOR SYSTEM ARE SUBJECT TO SEPARATE AGREEMENTS WITH
SCEE, AND ANY LICENCE OF RIGHTS TO PUBLISHER UNDER SUCH SEPARATE AGREEMENTS
SHALL NOT CONFER ON PUBLISHER ANY RIGHTS IN RELATION TO THE PLAYSTATION®2
SYSTEM,
OR VICE VERSA.


 


This Agreement is entered into the 28th day of July 2003 by and between


 


SONY COMPUTER
ENTERTAINMENT EUROPE LIMITED


of 30
Golden Square, London W1F 9LD


(hereinafter
referred to as “SCEE”)


 


- and -


 


THQ INTERNATIONAL LIMITED


of
Dukes Court, Duke Street, Woking, Surrey GU21 5BH


(hereinafter
referred to as “Publisher”)


Publisher
Authorisation #: 138


 


Whereas


 


(A)      SCEE, its
parent company Sony Computer Entertainment Inc., and/or certain of their
affiliates and companies within the group of companies of which any of them
form part (hereinafter jointly and severally referred to as “Sony”) have
developed, and are licensing core components of, a computer entertainment
system known and hereinafter referred to as “PlayStation 2”, and are
the owners of, or have the right to grant licences of, certain proprietary
information and intellectual property rights pertaining to PlayStation 2.


 


(B)       Publisher desires to be granted a non-exclusive licence to market,
distribute and sell Licensed Products (as defined below), and for such Licensed
Products and associated materials to be manufactured by an authorised
manufacturing facility licensed by SCEE, on the terms and subject to the
conditions set forth in this Agreement.


 


(C)       SCEE is willing, on the terms and subject to the conditions of this
Agreement, to grant Publisher the desired non-exclusive licence.


 


Now therefore, in consideration of the
undertakings, representations and warranties given herein, and of other good
and valuable consideration the receipt and sufficiency of which is
acknowledged, Publisher and SCEE hereby agree as follows:


 


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1.         Definitions


 


1.1       “Licensed Products” means PlayStation 2 format Software product(s) in
uniquely marked or coloured CD-ROM or DVD-ROM format software discs
(hereinafter referred to as “PlayStation 2 Discs”).


 


1.2       “Licensed Territory” means the countries specified in Schedule 1.


 


1.3       “Sony
Intellectual Property Rights” means all current and future patents worldwide,
pending patent applications and other patent rights (under licence or
otherwise), copyrights, trademarks, service marks, trade names, semi-conductor
topography rights, trade secret rights, technical information and know-how (and
the equivalents of each of the foregoing under the laws of any jurisdiction) of
Sony pertaining to Sony Materials and/or PlayStation 2, and all other
proprietary or intellectual property rights worldwide (including, without
limitation, all applications and registrations with respect thereto) of Sony
pertaining to Sony Materials and/or PlayStation 2, and all renewals and
extensions thereof.


 


1.4       “PlayStation
2 format Software” means Publisher’s object code software, which includes
Licensed Developer Software and any software (whether in object code or source
code form) which is provided by SCEE and intended to be combined with Licensed
Developer Software for execution on PlayStation 2 and has the ability to
communicate with the software resident in PlayStation 2.


 


1.5       “Term”
means the period from the date hereof until 31 March 2003 and continuing
thereafter unless and until terminated by not less than 1 (one) month’s notice
on either side given to expire on such date or any subsequent 31 March.


 


1.6       “Affiliate
of SCEE” means, as applicable, either Sony Computer Entertainment Inc in Japan,
Sony Computer Entertainment America Inc in the USA or such other Sony Computer
Entertainment entity as may be established by Sony from time to time.


 


1.7       “LDA 2”
means the PlayStation 2 Licensed Developer Agreement between Licensed Developer
of the applicable PlayStation 2 format Software and SCEE (or an equivalent such
agreement between Licensed Developer and an Affiliate of SCEE).


 


1.8       “Licensed Trademarks” means the
“PS” family logo and PlayStation 2 logotype and such other trademarks, service
marks, trade dress, logos and other icons or indicia as shall be specified in
the Specifications or otherwise designated by SCEE from time to time. SCEE may
amend such Licensed Trademarks upon reasonable notice to Publisher.


 


Publisher is
not authorised to use the PlayStation, PSone or PlayStation.com logos and/or
logotypes, or the “PS2” or PlayStation Shapes devices, other than as expressly
permitted by separate agreement. Nothing contained in this Agreement shall in
any way grant Publisher the right to use the trademark “Sony” in any manner as
(or as part of) a trademark, trade name, service mark or logo or otherwise
howsoever.


 


1.9       “Licensed
Developer” means Publisher or such other third party as shall have developed
Licensed Developer Software and PlayStation 2 format Software pursuant to a
then current LDA 2.


 


1.10     “Sony
Materials” means any hardware, data, object code, source code, documentation (or
any part(s) of any of the foregoing) and related peripheral items provided to
the Licensed Developer of any PlayStation 2 format Software pursuant to the LDA
2 applicable for such PlayStation 2 format Software.


 


1.11     “Licensed
Developer Software” means Licensed Developer’s application source code and data
(including audio and visual material) developed by Licensed Developer in
accordance with its LDA 2 which, when integrated with any software (whether in
object code or source code form) provided by SCEE, creates PlayStation 2 format
Software.


 


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1.12     “Printed
Materials” means all artwork and mechanicals to be set forth on the Licensed
Product itself, and on the PlayStation 2 box (or other container) and, if
applicable, the box (or other) packaging for the Licensed Product and all
instruction manuals, inlays, inserts, stickers and other user information
and/or materials to be inserted in or affixed to such PlayStation 2 box and/or
packaging.


 


1.13     “Advertising
Materials” means all advertising, merchandising, promotional and display
materials of or concerning the Licensed Products.


 


1.14     “Manufactured
Materials” means all units of the Licensed Products, of the Printed Materials
to be set forth on the Licensed Products themselves and of the PlayStation 2
boxes for such Licensed Products (which expression shall include any
alternative form of container for Licensed Products subsequently introduced by
SCEE).


 


1.15     “Specifications”
means such specifications relating to the content and/or manufacture of
Licensed Products, Printed Materials, Advertising Materials and/or related
matters or materials as may be issued by Sony, which specifications (and/or
procedures relating to the testing or verification of all such materials for
conformity to the Specifications and/or relating to the ordering and
manufacture of Licensed Products and associated materials) may be amended from
time to time upon reasonable notice to Publisher.


 


1.16     “CNDA” means
the Confidentiality & Non-Disclosure (or similar) Agreement between
Publisher and SCEE or an Affiliate of SCEE relating to PlayStation 2 and to
Confidential Information of Sony and/or of Publisher thereunder.


 


1.17      “Confidential Information of Sony” means the content of this Agreement
(including the Schedules hereto and the Specifications) and all confidential
and/or proprietary information, documents and related materials of whatever
nature (including, without limitation all processes, hardware, software,
inventions, trade secrets, ideas, designs, research, know-how, business
methods, production plans and marketing plans) concerning PlayStation 2
developed or owned by, licensed to or under the control of Sony and, without
limitation, information otherwise related to Sony’s technology, know-how,
products, potential products, research projects, promotional advertising and
marketing plans, schedules and budgets, licensing terms and pricing, customer
lists and details, commercial relationships or negotiations, services,
financial models and other business information, whether relating to
PlayStation 2 or otherwise including, unless covered by a separate Non-Disclosure
Agreement between Publisher and SCEE, relating to Sony’s “PlayStation”
predecessor video entertainment system disclosed by whatever means, whether
directly or indirectly, by or on behalf of Sony to Publisher at any time,
whether disclosed orally, in writing or in machine-readable or other form, or
otherwise discovered by Publisher as a result of any information or materials provided
(whether directly or indirectly) by or on behalf of Sony to Publisher.


 


1.18     “Confidential Information of Publisher” means any and all
confidential and/or proprietary information, documents and related materials of
whatever nature (including, without limitation all processes, hardware,
software, inventions, trade secrets, ideas, designs, research, know-how,
business methods, production plans and marketing plans) concerning
PlayStation 2 format Software developed or owned by, licensed to or under
the control of Publisher and, without limitation, information otherwise related
to Publisher’s technology, know-how, products, potential products, research
projects, promotional advertising and marketing plans, schedules and budgets,
licensing terms and pricing, customer lists and details, commercial
relationships or negotiations, services, financial models and other business
information, whether relating to PlayStation 2 or otherwise disclosed by
whatever means, whether directly or indirectly, by or on behalf of Publisher to
SCEE at any time, whether disclosed orally, in writing or in machine-readable
or other form, or otherwise discovered by SCEE as a result of any information
or materials provided (whether directly or indirectly) by or on behalf of
Publisher to SCEE, which information is designated by Publisher as, or becomes
known to SCEE under circumstances indicating that such information is,
confidential or proprietary.


 


3

















 


1.19     “Third Party Intellectual Property Rights”
means all current and future patents worldwide, pending patent applications and
other patent rights (under licence or otherwise), copyrights, trademarks,
service marks, trade names, semi-conductor topography rights, trade secret
rights, technical information and know-how (and the equivalents of each of the
foregoing under the laws of any jurisdiction) of any third party other than
Publisher or Sony and all other proprietary or intellectual property rights
worldwide (including, without limitation, all applications and registrations
with respect thereto), and all renewals and extensions thereof.


 


1.20     “Article 6”
means Article 6 of Council Directive 91/250/EEC of 14 May 1991 on the legal
protection of computer programmes.


 


2.         Grant of
Licence


 


SCEE
hereby grants to Publisher, and Publisher hereby accepts, within the Licensed
Territory only and under the Sony Intellectual Property Rights, a non-exclusive
non-transferable licence, without the right to sub-license (except as
specifically provided herein), to publish PlayStation 2 format Software in such
genres or categories as SCEE shall from time to time designate in the
Specifications, and the right and obligation to use the Licensed Trademarks, in
the form and manner prescribed in the Specifications, strictly, only and
directly in connection with such publication. 
For these purposes, to “publish” shall mean any or all of the following:
(i)  produce Advertising Materials and Printed Materials; (ii) to
issue to SCEE purchase orders for Manufactured Materials as prescribed in
Clause 6; (iii) to market, distribute and sell Licensed Products (and to
authorise others so to do); and (iv) to sub-license to end users the right
to use Licensed Products for non-commercial purposes only and not for public
performance.


 


3.         Limitations


 


3.1       Subject
always to Article 6, Publisher shall publish PlayStation 2 format Software only
if developed by a Licensed Developer strictly in accordance with all the terms
and conditions of such Licensed Developer’s LDA 2 and shall not publish or
attempt to publish any other software whatsoever intended for or capable of
execution on PlayStation 2.  The onus of
evidencing that PlayStation 2 format Software satisfies the foregoing criteria
shall rest on Publisher and SCEE reserves the right to require Publisher to
furnish evidence satisfactory to SCEE that the foregoing criteria are
satisfied.


 


3.2       Publisher shall not publish outside the
Licensed Territory PlayStation 2 format Software unless and until Publisher
shall be authorised and licensed so to do pursuant to a current licence
agreement with the applicable Affiliate of SCEE.  Further, Publisher shall not sub-publish such PlayStation 2
format Software through a third party either within or outside the Licensed
Territory unless and until such sub-publisher shall be authorised and licensed
so to do either pursuant to a current PlayStation 2 Licensed Publisher
Agreement with SCEE or a current PlayStation 2 licence agreement with the
applicable Affiliate of SCEE.


 


3.3        The licence granted in this Agreement extends only to the publication,
marketing, distribution and sale of Licensed Products in such formats as may be
designated by SCEE. Without limiting the generality of the foregoing and except
as otherwise provided herein, Publisher and, if applicable, its sub-publishers
shall at all times and in all territories be strictly prohibited from
undertaking or authorising the distribution or transmission of PlayStation 2
format Software or Licensed Products through electronic means or any other
means now known or hereafter devised, including without limitation, via
wireless, cable, fibre optic means, telephone lines, microwave and/or radio
waves, or over a network of interconnected computers or other devices.
Notwithstanding this limitation, Publisher may electronically transmit
PlayStation 2 format Software from site to site, or from machine to machine
over a computer network, for the sole purpose of facilitating development;
provided that no right of retransmission shall attach to any such transmission,
and provided further that Publisher shall use reasonable security measures
customary within the high technology industry to reduce the risk of
unauthorised interception or retransmission of such transmissions.


 


4

















 


For the avoidance of doubt, the foregoing shall apply
only to PlayStation 2 format Software and to Licensed Products and shall not
apply to Licensed Developer Software which does not utilise Sony Materials
and/or Sony Intellectual Property Rights and/or, subject to Council Directive
91/250/EEC, Confidential Information of Sony.


 


3.4       Subject
only to Article 6, Publisher and, if applicable, its sub-publishers shall at
all times be strictly prohibited from disassembling or decompiling software,
peeling semiconductor components or otherwise reverse engineering or attempting
to reverse engineer or derive source code or create derivative works from
PlayStation 2 format Software, from permitting or encouraging any third party
so to do, and from acquiring or using any materials from any third party who
does so.  Publisher shall in all cases
be primarily liable for the payment of Platform Charge to SCEE in accordance
with Clause 7 hereof in respect of any product published by Publisher, or,
if applicable, any of its sub-publishers, which utilises Sony Materials and/or
Sony Intellectual Property Rights and/or, subject to Council Directive
91/250/EEC, Confidential Information of Sony. 
The onus of evidencing that any such product is not so published shall
rest on Publisher and SCEE reserves the right to require Publisher to furnish
evidence satisfactory to SCEE that the applicable of the foregoing criteria are
satisfied.


 


3.5       Publisher
shall inform all such sub-publishers of the obligations imposed by this
Agreement and shall obtain their commitment to abide by the same.


 


3.6       Any breach
of the provisions of this Clause 3 shall be a material breach of this
Agreement not capable of remedy.


 


4.         Reservations


 


4.1       This
Agreement does not grant any right or licence, under any Sony Intellectual
Property Rights or otherwise, except as expressly provided herein, and no other
right or licence is to be implied by or inferred from any provision of this
Agreement or the conduct of the parties hereunder.  Subject only to the rights of Publisher under this Agreement, all
right, title and interest in and to the Sony Materials and the Sony
Intellectual Property Rights are and shall be the exclusive property of Sony,
and Publisher shall not make use of, or do or cause to be done any act or thing
contesting or in any way impairing or tending to impair any of Sony’s right,
title or interest in or to, any of the Sony Materials, Sony Intellectual
Property Rights, PlayStation 2 and/or Sony’s “PlayStation” predecessor video
entertainment system except as authorised by and in compliance with the
provisions of this Agreement or as may otherwise expressly be authorised in
writing by Sony;  provided however that
the foregoing shall not be taken to preclude Publisher from challenging the
validity of any Sony Intellectual Property Rights.  No right, licence or privilege has been granted to Publisher
hereunder concerning the development of any collateral product or other use or
purpose of any kind whatsoever which displays or depicts any of the Licensed
Trademarks.  No promotional or novelty
items or premium products (including, by way of illustration but without
limitation, T-shirts, posters, stickers, etc) displaying or depicting any of
the Licensed Trademarks shall be developed, manufactured, marketed, sold and/or
distributed by, with the authority of or on behalf of, Publisher without the
prior written consent and authorisation of SCEE in each case.


 


4.2       The
Licensed Trademarks and the goodwill associated therewith are and shall be the
exclusive property of Sony.  Nothing
herein shall give Publisher any right, title or interest in or to any of the
Licensed Trademarks, other than the non-exclusive licence and privilege to
display and use the Licensed Trademarks solely in accordance with the
provisions of this Agreement.  Publisher
shall not do or cause to be done any act or thing contesting or in any way
impairing or tending to impair any of Sony’s right, title or interest in or to
any of the Licensed Trademarks, nor shall Publisher register or apply to
register any trademark in its own name or in the name of any other person or
entity, or obtain or seek to obtain rights to employ Internet domain name(s) or
address(es), which is or are similar to or is or are likely to be confused with
any of the Licensed Trademarks; provided


 


5

















 


however that
the foregoing shall not be taken to preclude Publisher from challenging the
validity of any Licensed Trademarks.


 


4.3       Publisher
or Licensed Developer (as applicable) retains all right, title and interest in
and to Licensed Developer Software, including Licensed Developer’s intellectual
property rights therein and any names or other designations used as titles
therefor, and nothing in this Agreement shall be construed to restrict the
right of Licensed Developer to develop and/or the right of Publisher to publish
products incorporating Licensed Developer Software (separate and apart from
Sony Materials), and/or under such names or other designations, for any hardware
platform or service other than PlayStation 2.


 


4.4       Subject to
the proviso to Clauses 4.1 and 4.2 above, Publisher shall, at the expense of
SCEE, take all such steps as SCEE may reasonably require, including the
execution of licences and registrations, to assist SCEE in maintaining the
validity and enforceability of Sony Intellectual Property Rights.


 


4.5       Without
prejudice to Clause 11, Publisher or SCEE (as applicable) shall promptly
and fully notify the other in writing in the event that it discovers or
otherwise becomes aware of any actual, threatened or suspected infringement of
any of the intellectual property or trademark rights of the other embodied in
any of the Licensed Products, and of any claim of infringement or alleged
infringement by the other of any Third Party Intellectual Property Rights, and
shall at the request and expense of the other do all such things as may
reasonably be required to assist the other in taking or resisting any
proceedings in relation to any such infringement or claim.


 


5.         Quality
Standards


 


5.1       Publisher
shall provide SCEE with a Product Planning Notification for each Licensed
Product in accordance with the Specifications.


 


Each Licensed
Product, including without limitation the title and content thereof, and/or Publisher’s
use of any of the Licensed Trademarks, shall be required to conform to the
Specifications and shall not, except as specifically authorised in writing by
SCEE in each case, incorporate (in whole or in part) more than 1 (one)
game product.


 


TESTING OR
VERIFICATION FOR CONFORMITY TO THE SPECIFICATIONS SHALL BE CONDUCTED BY SCEE
OR, AT PUBLISHER’S ELECTION, BY AN INDEPENDENT EXTERNAL TESTING SERVICE (IF AND
WHEN SUCH SERVICE BECOMES AVAILABLE).


 


5.2       Publisher shall submit for testing for conformity to the
Specifications such information and materials relating to the PlayStation 2
format Software for each Licensed Product as shall be specified in the
Specifications.  Such Specifications
shall be comparable with the specifications applied by Sony with respect to its
own PlayStation 2 format Software products. 
SCEE acknowledges and agrees that such Specifications shall be of
prospective application only and shall not be applied to any inventory units of
the Licensed Products manufactured prior to, or in the active process of
manufacture at the date of, the promulgation thereof by SCEE.


 


5.3       For each Licensed Product, Publisher shall be responsible, at
Publisher’s expense, for the origination of all Printed Materials, and for the
manufacture and delivery to the manufacturer of such Licensed Product of all
Printed Materials other than those to be set forth on the Licensed Product
itself, all of which Printed Materials shall: (i) conform in all material
respects to the Specifications; and (ii) include such other materials
(including by way of illustration but not limitation, consumer health warnings
in relation to epilepsy) and such consumer advisory rating code(s) as may from
time to time be required by any governmental entity or in compliance with any
voluntary code of practice operated by members of the interactive software
development and publishing community. 
The Specifications referred to in (i) above shall be comparable with the
specifications applied by Sony with respect to its own PlayStation 2 format Software
products.  SCEE acknowledges and agrees
that such Specifications shall be of prospective application only


 


6

















 


and shall not
be applied to any inventory units of the Licensed Products manufactured prior
to, or in the active process of manufacture at the date of, the promulgation
thereof.  All materials to be submitted
pursuant to this Clause 5.3 shall be delivered by such means and in such form
as shall be prescribed in the Specifications and at Publisher’s sole risk and
expense.  Publisher undertakes that the
quality of such Printed Materials shall be of the same quality as that
associated with high quality consumer products.


 


5.4       Where applicable, SCEE (or,
where applicable, an independent external testing service as aforesaid) will
test or verify for conformity to the Specifications (as the case may be) all
materials submitted by Publisher pursuant to Clause 5.2 and
Clause 5.3.  Where such testing or
verification is conducted by SCEE, SCEE shall advise Publisher of the results
of such testing or verification within the applicable of the timeframes
specified in the Specifications.  Where
such testing or verification is conducted by such independent external testing
service, such service shall advise Publisher of the results of such testing or
verification within timeframes agreed between such service and Publisher (and
SCEE shall have no responsibility or liability whatsoever arising from a
failure by such service to meet such timeframes).  If any of such materials (or any element(s) thereof) fail to
conform to the Specifications, SCEE (or, where applicable, such independent
external testing service) shall specify the reasons for such failure and state
what revisions are required.  After
making the required revisions, Publisher may resubmit such materials in such
revised form for re-testing or re-verification by SCEE (or, where applicable,
such independent external testing service). 
The procedures described in this Clause 5.4 shall if necessary be
repeated until all such materials for each Licensed Product shall expressly
have been certified as conforming to the Specifications, such certification to
be validly given only if in writing and signed by the duly authorised
representative(s) of SCEE as specified in the Specifications (or, where
applicable, by the duly authorised representative(s) of such independent
external testing service).  SCEE shall
have no liability to Publisher for the accuracy or content (including
translations and localisations) of Printed Materials (except only items
required to be included in accordance with the Specifications) or in respect of
costs incurred or irrevocably committed by Publisher as a result of any failure
to conform to Specifications (even where certified for conformity) or in
relation to, or to the use of, Printed Materials which shall not have been
given a certificate of conformity by SCEE (or, where applicable, by such
independent external testing service). 
No production units of any Licensed Product shall be manufactured,
marketed, distributed or sold by, with the authority of or on behalf of,
Publisher unless and until such a certificate of conformity of such Licensed
Product shall first have been given by SCEE (or, where applicable, by such
independent external testing service). 
No certificate of conformity from SCEE 
(or, where applicable, from such independent external testing service)
of any element of the materials so submitted or resubmitted shall be deemed a
certificate of conformity of any other element of such materials, nor shall any
such certificate of conformity be deemed to constitute a waiver of any of
SCEE’s rights under this Agreement.


 


The
generality of the foregoing notwithstanding, in the event that Publisher wishes
to contest a finding by SCEE of non-conformity to the Specifications, and as an
alternate to making required revisions and resubmissions as above, Publisher
may have recourse to the appeals process specified in the Specifications.


 


5.5       Publisher shall not change in any material respect any of the
materials for which a certificate of conformity shall have been given by SCEE
(or, where applicable, by an independent external testing service) pursuant to
Clause 5.4 (or, if applicable, pursuant to Clause 5.6) (or,
alternately, which shall have been held to conform to the Specifications
following recourse by Publisher to the appeals process specified in the
Specifications).  If any of the Licensed
Products and/or related materials published by, with the authority of or on
behalf of, Publisher fail to conform to the Specifications and the materials
for which SCEE (or, where applicable, such independent external testing
service) shall from time to time have given a certificate of conformity, then
the provisions of Clause 13.2 shall apply.


 


7

















 


5.6       SCEE reserves the right to require that pre-production samples of all
Advertising Materials shall be submitted by Publisher to SCEE or, at
Publisher’s election, to an independent external testing service (if and when
such service becomes available), free of charge and in accordance with the
procedure specified in the Specifications, for verification for conformity to
the Specifications (including specifically, but without limitation, in relation
to the usage of any of the Licensed Trademarks), prior to any actual
production, use or distribution of any such items by, with the authority or on
behalf of, Publisher.  No such proposed
Advertising Materials shall be produced, used or distributed directly or
indirectly by Publisher without first obtaining a certificate of conformity to
the Specifications.  Where such
verification is conducted by SCEE, SCEE shall advise Publisher of the results
of such verification within the applicable of the timeframes specified in the
Specifications.  Where such verification
is conducted by such independent external testing service, such service shall
advise Publisher of the results of such verification within timeframes agreed
between such service and Publisher (and SCEE shall have no responsibility or
liability whatsoever arising from a failure by such service to meet such
timeframes).  If any such Advertising
Materials (or any element(s) thereof) fail to conform to the Specifications,
SCEE (or, where applicable, such independent external testing service) shall
specify the reasons for such failure and state what revisions are
required.  After making the required
revisions, Publisher may resubmit such materials in such revised form for
re-verification by SCEE (or, where applicable, by such independent external
testing service). The procedures described in this Clause 5.6 shall if
necessary be repeated until all such Advertising Materials for each Licensed
Product shall expressly have been certified as conforming to the Specifications,
such certification to be validly given only if in writing and signed by the
duly authorised representative(s) of SCEE as specified in the Specifications
(or, where applicable, by the duly authorised representative(s) of such
independent external testing service). 
SCEE shall have no liability to Publisher in respect of costs incurred
or irrevocably committed by Publisher in relation to, or to the use of,
Advertising Materials which shall not have been given a certificate of
conformity by SCEE (or, where applicable, by such independent external testing
service).  No certificate of conformity
from SCEE (or, where applicable, from such independent external testing
service) of any element of Advertising Materials so submitted or resubmitted
shall be deemed a certificate of conformity of any other element of such
Advertising Materials, nor shall any such certificate of conformity be deemed
to constitute a waiver of any of SCEE’s rights under this Agreement.


 


The generality
of the foregoing notwithstanding, in the event that Publisher wishes to contest
a finding of non-conformity to the Specifications by SCEE, and as an alternate
to making required revisions and resubmissions as above, Publisher may have
recourse to the appeals process specified in the Specifications.


 


Subject in
each instance to the prior written consent of SCEE, Publisher may use such
textual and/or pictorial advertising matter (if any) as may be created by, with
the authority or on behalf of, Sony pertaining to the Sony Materials and/or to
the Licensed Trademarks on such Advertising Materials as may, in Publisher’s
judgement, promote the sale of Licensed Products within the Licensed
Territory.  Sony shall have the right to
use Licensed Products and/or other materials relating to Publisher’s PlayStation
2 format Software titles in any advertising or promotion for PlayStation 2 at
Sony’s expense, subject to giving Publisher reasonable prior notice of such
advertisement or promotion.  Sony shall
confer with Publisher regarding the text of any such advertisement.  If required by Sony and/or any governmental
entity or in compliance with any voluntary code of practice operated by members
of the interactive software development and publishing community, Publisher shall,
at Publisher’s cost and expense, also include consumer advisory rating code(s)
and, if required, other materials (including by way of illustration but not
limitation, consumer health warnings in relation to epilepsy) on any and all
Advertising Materials used in connection with Licensed Products.  Such consumer advisory rating code(s) shall
be procured in accordance with the provisions of Clause 5.7.


 


8

















 


5.7       Publisher agrees that, if
required by SCEE or any governmental entity, it shall submit each Licensed
Product to a consumer advisory ratings system designated by SCEE and/or such
governmental entity for the purpose of obtaining rating code(s) for each
Licensed Product.  Any and all costs and
expenses incurred in connection with obtaining such rating code(s) shall be
borne solely by Publisher.  Any required
consumer advisory rating code(s) thereby procured shall be displayed on
Licensed Products and associated Printed Materials in accordance with the Specifications,
at Publisher’s cost and expense.


 


5.8       In the event Publisher fails to
comply with its obligations in relation thereto as specified in
Clause 5.7, SCEE reserves the right in its sole discretion, at Publisher’s
sole cost and expense: (i) to display, or to require the display, on Licensed
Products and/or associated Printed Materials and/or associated Advertising
Materials (as may be required) materials (including by way of illustration but
not limitation, consumer health warnings in relation to epilepsy) and/or to
procure and to display, or to require the display of, consumer advisory rating
code(s); or (ii) to require non-complying Licensed Products and/or
associated Printed Materials and/or associated Advertising Materials forthwith
to be withdrawn from the market.


 


6.         Manufacture of Licensed Products & Associated Materials


 


6.1       Subject only to Article 6, Publisher acknowledges and agrees that it
shall purchase Manufactured Materials only from an authorised manufacturing
facility licensed by SCEE.  SCEE shall
have the right, but no obligation, to subcontract the whole or any part or
phase of the production of any or all of the Manufactured Materials or any
part(s) thereof.


 


6.2       Subject
always to Article 6, promptly following the giving by SCEE (or, where
applicable, by an independent external testing service as aforesaid) of a
certificate of conformity to the Specifications (or, alternately, a holding of
conformity to the Specifications following recourse by Publisher to the appeals
process specified in the Specifications) for each Licensed Product pursuant to
Clause 5.2, SCEE shall create (from one of the CD copies of the finally
approved version of the PlayStation 2 format Software as submitted by Publisher
pursuant to Clause 5.2) the original master PlayStation 2 Disc (“Master
PlayStation 2 Disc”) from which all other copies of the Licensed Product are to
be replicated in compliance with the Specifications effective at the time of
replication.  Where such certificate of
conformity shall have been given by such an independent external testing
service, then the CD copy of the finally approved version of the PlayStation 2
format Software as submitted by Publisher pursuant to Clause 5.2 from which the
Master PlayStation 2Disc is to be created shall be furnished SCEE by such
service.  Publisher shall be responsible
for the costs, as set forth in Schedule 2, of creating such Master PlayStation
2 Disc.  Publisher will retain
duplicates of all such PlayStation 2 format Software.  SCEE shall not be liable for loss of or damage to any copies of
the PlayStation 2 format Software furnished SCEE hereunder.  There will be no technology exchange between
Sony and Publisher under this Agreement. 
The mastering process being of a proprietary and commercially
confidential nature, neither SCEE nor any manufacturing subcontractor of SCEE
will under any circumstances release any Master PlayStation 2 Discs or other
in-process materials to Publisher.  All
such physical materials shall be and remain the sole property of Sony.


 


6.3       Subject
always to Article 6, Publisher shall be solely responsible for the delivery,
direct to an authorised manufacturing facility licensed by SCEE and in
accordance with Clause 6.4, **** of the number of sets of the Printed
Materials (other than those set forth on the applicable Licensed Product
itself) required to fulfil Publisher’s purchase order for Manufactured
Materials of each PlayStation 2 format Software title, which Printed Materials
shall be in strict compliance with the Specifications.  SCEE shall, at Publisher’s request, give Publisher
all reasonable assistance in arranging the manufacture of Printed Materials to
be used in conjunction with Licensed Products not manufactured in reliance on
Article 6 through SCEE’s authorised manufacturing facility (if a


 












* Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.


 


9

















 


Sony company),
but SCEE shall have no responsibility with respect to pricing, delivery or any
other related matter whatsoever in connection with such manufacture.


 


6.4       Subject to
the giving by SCEE of a certificate of conformity to the Specifications (or,
alternately, a holding of conformity following recourse by Publisher to the
appeals process specified in the Specifications) for the applicable PlayStation
2 format Software and Printed Materials pursuant to Clause 5, and to the
delivery to an authorised manufacturing facility licensed by SCEE of the
materials to be delivered under Clause 6.3, SCEE will, at Publisher’s expense
and as applicable, manufacture, assemble, package and deliver the Manufactured
Materials and the Printed Materials in accordance with the terms and conditions
set forth in this Clause 6.  The
delivery of the materials specified in Clause 6.3 shall be made in accordance
with the timetable for such delivery specified in the Specifications.


 


6.5       Subject
always to Article 6, Publisher shall issue to SCEE purchase order(s) via SCEE’s
Electronic Order System (or otherwise as specified by SCEE from time to time)
in accordance with, and in compliance with the timetable specified in, the
Specifications.  No such order shall be
issued unless and until all necessary certificates of conformity shall have
been given (or, alternately, there shall have been a holding of conformity
following recourse by Publisher to the appeals process specified in the
Specifications) pursuant to Clause 5. 
Each such order shall reference Publisher authorisation number and
purchase order reference number, specify quantities of PlayStation 2 format
Software by title by pack sku (in multiples of the minimum box shipment
detailed in the Specifications), state requested ex-factory delivery date and
all packaging information together with such other information as SCEE shall
reasonably require and shall be for not less than the applicable minimum order
quantity as specified in Schedule 2 hereto. All such purchase orders shall be
subject to acceptance by SCEE, which acceptance will be advised to Publisher
not more than **** following delivery in accordance with Clause 6.4 of the
materials required to be delivered under Clauses 6.2 and 6.3.  SCEE shall use all reasonable endeavours,
subject to available manufacturing capacity, to fulfil Publisher’s purchase
orders by Publisher’s requested ex-factory delivery date but does not in any
event guarantee so to do. Publisher shall have no right to cancel or reschedule
any purchase order or reorder (or any portion thereof) for any Licensed Product
unless the parties shall first have reached mutual agreement as to Publisher’s
financial liability with respect to any desired cancellation or rescheduling of
any such purchase order or reorder (or any portion thereof).


 


6.6       Subject
only to the provisions of Clause 6.5 in relation to Printed Materials,
neither SCEE nor any manufacturing subcontractor of SCEE shall be under any
obligation to store finished units of Manufactured Materials or of associated
Printed Materials beyond the actual ex-factory delivery date thereof.  Delivery of Manufactured Materials shall be
made ex-factory the applicable authorised manufacturing facility licensed by
SCEE in the Licensed Territory.  All
risk of loss or damage in transit to any and all Manufactured Materials
manufactured by SCEE pursuant to Publisher’s orders shall pass to Publisher forthwith
upon first handling by Publisher’s carrier.


 


6.7       Publisher
may inspect and test any units of Manufactured Materials not manufactured in
reliance on Article 6 at Publisher’s receiving destination.  Any finished units of such Manufactured
Materials which fail to conform to the Specifications and/or any description(s)
contained in this Agreement may be rejected by Publisher by providing written
notice of rejection to SCEE within **** of receipt of such units of such
Manufactured Materials at Publisher’s receiving destination.  In such event, the provisions of
Clause 10.2 shall apply with respect to any such rejected units of
Manufactured Materials.  Notwithstanding
the provisions of Clause 10.2, if Publisher fails to reject any units of
such Manufactured Materials in the manner and within the **** period prescribed
above, such units of Manufactured Materials shall irrevocably be deemed
accepted by Publisher and shall not subsequently be rejected.


 












*
Confidential portion omitted and filed separately with the Securities and
Exchange Commission.


 


10

















 


6.8       In no
circumstances shall SCEE or its authorised manufacturing facility treat any of
Publisher’s Licensed Products in any way more or less favourably, in terms of
production turnaround times or otherwise, than the Licensed Products of any
other Licensed Publisher of SCEE or than PlayStation 2 format Software products
published by SCEE itself.


 


7.         Platform
Charge


 


7.1       The all-in
Platform Charge for finished units of Manufactured Materials in respect of
which SCEE accepts Publisher’s purchase order in accordance with
Clause 6.5 shall be as specified in Schedule 2 (but subject to
adjustment as therein provided).  Such
Platform Charge shall be subject to change by SCEE at any time upon reasonable
notice to Publisher; provided, however, that such Platform Charge shall not be
changed with respect to any units of Manufactured Materials which are the
subject of an effective purchase order or reorder but which have not yet been
delivered by SCEE.  Such Platform Charge
for finished units of Manufactured Materials is exclusive of any value-added or
similar sales tax, customs and excise duties and other similar taxes or duties,
which SCEE may be required to collect or pay as a consequence of the sale or
delivery of finished units of Manufactured Materials.  Publisher shall be solely responsible for the payment or
reimbursement of any such taxes or duties, and other such charges or assessments
applicable to the sale and/or purchase of finished units of Manufactured
Materials.


 


The Platform
Charge for products developed utilising Sony Materials and/or Sony Intellectual
Property Rights and/or, subject to Council Directive 91/250/EEC, Confidential
Information of Sony, but manufactured in reliance on Article 6, shall be
the otherwise applicable Platform Charge less only such sum as represents from
time to time the costs of raw materials and for production services (including
for utilisation of Sony’s proprietary Disc Mastering technology) for the
products concerned which SCEE would otherwise have been invoiced for by SCEE’s
authorised manufacturing facility (“the Article 6 Platform Charge”).  If Publisher has products so manufactured in
reliance on Article 6, then Publisher shall furnish SCEE, within ****following
the close of each calendar month: (i) a written reporting of the number of
inventory units (by product title) of products so manufactured during such
calendar month; (ii) an external auditor’s certificate (or similar independent
certificate reasonably acceptable to SCEE) confirming the completeness and
accuracy of such reporting; 
(iii) Publisher’s remittance for the Article 6 Platform
Charge multiplied by the number of inventory units reflected in such
reporting.  Any failure fully and
promptly to comply with the foregoing reporting and payment obligations shall
constitute a breach of this Agreement not capable of remedy, entitling SCEE
forthwith to terminate the Term pursuant to Clause 13.1(i); and upon
termination by SCEE for such cause, the provisions of Clause 14.2 shall
come into effect.


 


SCEE shall upon reasonable written request provide
Publisher details of the aforementioned costs of raw materials and production
services if Publisher has legitimately exercised its rights under Article 6 or
genuinely intends to exercise and rely upon such rights. However, SCEE reserves
the right to require Publisher to execute a separate Non-Disclosure Agreement
before making such information available.


 


7.2       No costs
incurred in the development, manufacture, marketing, sale and/or distribution
of Licensed Products and/or associated materials shall be deducted from any
Platform Charge payable to SCEE hereunder. 
Similarly, there shall be no deduction from the Platform Charge
otherwise payable to SCEE hereunder as a result of any uncollectable accounts
owed to Publisher, or for any credits, discounts, allowances or returns which
Publisher may credit or otherwise grant to any third party customer in respect
of any units of Licensed Products and/or associated materials, or for any
taxes, fees, assessments, or expenses of any kind which may be incurred by
Publisher in connection with its sale and/or distribution of any units of
Licensed Products and/or associated materials, and/or arising with respect to
the payment of Platform Charge hereunder. 
Publisher shall furnish SCEE


 












* Confidential portion omitted and filed separately
with the Securities and Exchange Commission.


 


11

















 


official tax
receipts or other such documentary evidence issued by the applicable tax
authorities  sufficient to substantiate the fact of the deduction of
any withholding taxes and/or other such assessments which may be imposed by any
governmental authority with respect to such payments of Platform Charge
hereunder and the amount of each such deduction.


 


7.3       Publisher shall effect payment for the
Platform Charge specified in Clause 7.1 for the finished units of
Manufactured Materials the subject matter of each purchase order issued
pursuant to Clause 6.5 in accordance with the Specifications.  Each delivery of Manufactured Materials to
Publisher shall constitute a separate sale obligating Publisher to pay
therefor, whether said delivery be whole or partial fulfilment of any order.  No claim for credit due to shortage of
Manufactured Materials as delivered to carrier will be allowed unless it is
made within **** from the date of receipt at Publisher’s receiving destination.  Title to Manufactured Materials the subject
of each such purchase order shall pass to Publisher only upon payment in full
of the Platform Charge due in respect thereof. 
The receipt and deposit by SCEE of any payment of Platform Charge
tendered by or on behalf of Publisher as aforesaid shall be without prejudice
to any rights or remedies of SCEE and shall not restrict or prevent SCEE from
thereafter successfully challenging the basis for calculation and/or the
accuracy of such payment.  SCEE reserves
the right, upon reasonable notice to Publisher, to require that such payments
of Platform Charge shall be made to such other Sony entity as SCEE may
designate from time to time.


 


8.         Marketing
& Distribution


 


Publisher shall, at no expense to SCEE, diligently
market, distribute and sell Licensed Products throughout (but only in) the
Licensed Territory, and shall use all reasonable efforts consistent with its
best business judgement to stimulate demand therefor in the Licensed Territory
and to supply any resulting demand. 
Publisher shall not market, distribute or sell Licensed Products outside
the Licensed Territory or to any person, firm, corporation or entity having its
place of business, or to any purchasing agency located, outside the Licensed
Territory.  Publisher shall use all
reasonable efforts consistent with its best business judgement to protect
Licensed Products from and against illegal reproduction and/or copying by end
users or by any other persons or entities. 
Such methods of protection may include, without limitation, markings or
insignia providing identification of authenticity and packaging seals as may be
specified in the Specifications.  SCEE
shall be entitled, at SCEE’s sole cost and expense, to manufacture up to ****
additional units of Manufactured Materials (or such greater number of
additional units as shall be agreed by Publisher, such agreement not
unreasonably to be withheld or delayed) for each PlayStation 2 format Software
title (and to purchase from Publisher, at a price equal to the actual cost
thereof to Publisher, a corresponding number of units of Printed Materials for
each such PlayStation 2 format Software title), for the purposes of or in
connection with the marketing and promotion of PlayStation 2; provided however
that SCEE shall not directly or indirectly resell any such units of Manufactured
Materials (and, if applicable, of Printed Materials) within the Licensed
Territory without Publisher’s prior written consent.  Further, SCEE shall be entitled to utilise Publisher’s name
and/or logo and the audio-visual content of, and/or the Printed Materials for,
PlayStation 2 format Software titles (not to exclude the likenesses of any
recognisable talent) for the purposes of or in connection with such marketing
and promotion.


 


9.         Confidentiality


 


9.1       All the
terms and provisions of the CNDA shall apply to Confidential Information of
Sony and, if and to the extent applicable, Confidential Information of
Publisher.


 


9.2       Where
Confidential Information of Publisher is not protected by the CNDA, SCEE shall
hold the same in confidence and shall take all reasonable steps necessary to
preserve such confidentiality.  Except
as may expressly be authorised by Publisher, SCEE shall not at any time,
directly or indirectly: (i) disclose any Confidential Information of
Publisher to any person other than a Sony


 












* Confidential portion omitted and filed separately
with the Securities and Exchange Commission.


 


12

















 


employee who
needs to know or have access to such information for the purposes of this
Agreement, and only to the extent necessary for such purposes; (ii) except
for the purposes of this Agreement, duplicate or use the Confidential
Information of Publisher for any other purpose whatsoever; or (iii) remove
any copyright notice, trademark notice and/or other proprietary legend set
forth on or contained within any of the Confidential Information of Publisher.


 


9.3       The
provisions of Clause 9.2 hereof shall not apply to any Confidential
Information of Publisher which: (i) has become part of information in the public
domain through no fault of SCEE; (ii) was known to SCEE prior to the
disclosure thereof by Publisher; (iii) properly comes into the possession
of SCEE from a third party which is not under any obligation to maintain the
confidentiality of such information. 
SCEE may disclose Confidential Information of Publisher pursuant to a
judicial or governmental order provided that SCEE promptly advises Publisher in
writing prior to any such disclosure so that Publisher may seek other legal
remedies to maintain the confidentiality of such Confidential Information of
Publisher, and SCEE shall comply with any applicable protective order or
equivalent.


 


9.4       Unless and
until a public announcement regarding this Agreement shall have been made by
Sony (or SCEE shall otherwise have agreed in writing), the fact that the
parties have entered into this Agreement shall be Confidential Information of
Sony and shall be treated in all respects accordingly.  The content of, and the timing and method of
the making of, any such public announcement shall be determined by SCEE in its
best business judgement.  However, SCEE
will give reasonable consideration to any notice from Publisher requesting that
no such public announcement be made, at or prior to a particular time or at
all.


 


10.      Warranties


 


10.1     SCEE
represents and warrants solely for the benefit of Publisher that SCEE has the
right, power and authority to enter into, and fully to perform its obligations
under, this Agreement.


 


10.2     SCEE
warrants that units of PlayStation 2 Discs comprising Licensed Products
manufactured by SCEE for Publisher pursuant to Clause 6 hereof shall be
free from defects in materials and workmanship under normal use and service at
time of delivery in accordance with Clause 6.6.  The sole obligation of SCEE under this warranty shall be, for a
period of **** from the date of delivery of such discs in accordance with
Clause 6.6, at SCEE’s election, either (i) to replace such defective
discs or (ii) to issue credit for, or to refund to Publisher the Platform
Charge of such defective discs (excluding PlayStation 2 Disc mastering charge)
and to reimburse Publisher its reasonable return shipping costs.  Such warranty is the only warranty
applicable to Licensed Products manufactured by SCEE for Publisher pursuant to
Clause 6.  This warranty shall not
apply to damage resulting from accident, fair wear and tear, wilful damage,
alteration, negligence, abnormal conditions of use, failure to follow
directions for use (whether given in instruction manuals or otherwise howsoever)
or misuse of Licensed Products, or to discs comprising less than **** [or, if
greater, **** units] in the aggregate of the total number of Licensed Products
manufactured by SCEE for Publisher per purchase order of any PlayStation 2
format Software title.  If, during such
**** period, defects appear as aforesaid, Publisher shall notify SCEE and, upon
request by SCEE (but not otherwise), return such defective discs, with a
written description of the defect claimed, to such location as SCEE shall designate.  SCEE shall not accept for replacement,
credit or refund as aforesaid any Licensed Products except factory defective
discs (i.e. discs that are not free from defects in materials and
workmanship under normal use and service). 
All returns of defective discs shall be subject to prior written
authorisation by SCEE, not unreasonably to be withheld.  If no defect exists or the defect is not
such as to be covered under the above warranty, Publisher shall reimburse SCEE
for expenses incurred in processing and analysing the discs.


 












* Confidential portion omitted and filed separately
with the Securities and Exchange Commission.


 


13

















 


10.3     Publisher represents, warrants, covenants
and agrees that: (i) Publisher has the right, power and authority to enter
into, and fully to perform its obligations under, this Agreement; (ii) the
making of this Agreement by Publisher does not violate any separate agreement,
rights or obligations existing between Publisher and any other person, firm,
corporation or entity, and, throughout the Term, Publisher shall not make any
separate agreement with any person or entity which is inconsistent with any of
the provisions hereof; (iii) both Licensed Developer Software and PlayStation
2 format Software, and any name, designation or title used in conjunction
therewith, shall be free from any valid third party claim of infringement of
any Third Party Intellectual Property Rights; (iv) there is no litigation,
proceeding or claim pending or threatened against Publisher or any subsidiary
or affiliate of Publisher which may materially affect Publisher’s rights in and
to Licensed Developer Software, the names, designations or titles used in
conjunction therewith, the works and performances embodied therein and/or the
copyrights pertaining thereto; (v) Publisher shall have made or shall make
any and all payments required to be made to any person, firm, corporation or
other entity, or to any body or group representing authors or participants in
the production of the works or performances embodied in Licensed Developer
Software and PlayStation 2 format Software, or to publishers or other persons
having legal or contractual rights of any kind to participate in any income
arising in respect of the exploitation of such works or performances;
(vi) neither Publisher nor any subsidiary or affiliate of Publisher shall
make any representation or give any warranty to any person or entity expressly
or impliedly on Sony’s behalf, or to the effect that Licensed Products are
connected in any way with Sony (other than that Licensed Products have been
developed, marketed, manufactured, sold and/or distributed under licence from
Sony); (vii) PlayStation 2 format Software shall be distributed by
Publisher solely in the form of Licensed Product; (viii) each Licensed
Product shall be marketed, sold and distributed in an ethical manner and in
accordance with all applicable laws and regulations; and (ix) Publisher’s
policies and practices with respect to the marketing, sale and/or distribution
of Licensed Products shall in no manner reflect adversely upon the name,
reputation or goodwill of Sony.


 


10.4     Further, Publisher represents, warrants,
covenants and agrees that neither Publisher nor any parent company, subsidiary
or affiliate of Publisher shall during the Term, whether for itself or for the
benefit of any other person, firm, corporation or entity, whether by itself or
by its officers, employees or agents, directly or indirectly, induce or seek to
induce, on an individually targeted basis, the employment of, or the engagement
of the services of, any Relevant Employee. 
For these purposes “Relevant Employee” shall mean and include any
employee of SCEE or of any subsidiary of SCEE (or any of their subsidiaries or
branch offices outside the United Kingdom), the services of which employee are
(a) specifically engaged in product development (or directly related)
functions or (b) otherwise reasonably deemed by his/her employer to be of
material importance to the protection of its legitimate business interests, and
with which employee Publisher (or any parent company, subsidiary or affiliate
of Publisher) shall have had contact or dealings during the Term.  The foregoing provisions shall continue to
apply for a period of **** following expiry or earlier termination of the Term
and are hereby deemed substituted for any corresponding provisions in any
agreement(s) previously entered into between the parties hereto in relation to
PlayStation 2 and/or to Sony’s “PlayStation” predecessor video entertainment
system.


 


11.      Indemnities


 


11.1     SCEE shall
indemnify and hold Publisher harmless from and against any and all claims,
losses, liabilities, damages, expenses and costs, including without limitation
reasonable fees for lawyers, expert witnesses and litigation costs, and
including costs incurred in the settlement or avoidance of any such claim,
which result from or are in connection with a breach of any of the warranties
provided by SCEE herein; provided however that Publisher shall give prompt
written notice to SCEE of the assertion of any such claim, and provided further
that SCEE shall have the right to select counsel and control the defence and/or
settlement thereof, subject to the right of Publisher to


 












*
Confidential portion omitted and filed separately with the Securities and
Exchange Commission.


 


14

















 


participate in
any such action or proceeding at its own expense with counsel of its own
choosing.  SCEE shall have the exclusive
right, at its discretion, to commence and prosecute at its own expense any
lawsuit or to take such other action with respect to such matters as shall be
deemed appropriate by SCEE.  Publisher
shall provide SCEE, at no expense to Publisher, reasonable assistance and
co-operation concerning any such matter. 
Publisher shall not agree to the compromise, settlement or abandonment
of any such claim, action or proceeding without SCEE’s prior written consent.


 


11.2     Publisher
shall indemnify and hold SCEE harmless from and against any and all claims,
losses, liabilities, damages, expenses and costs, including without limitation
reasonable fees for lawyers, expert witnesses and litigation costs, and
including costs incurred in the settlement or avoidance of any such claim,
which result from or are in connection with (i) a breach of any of the
warranties provided by Publisher herein or any breach of Publisher’s
confidentiality obligations as referred to in Clause 9.1 hereof, or
(ii) any claim of infringement or alleged infringement of any Third Party
Intellectual Property Rights with respect to Licensed Developer Software, or
(iii) any claim of or in connection with any injury (including death) or
property damage, by whomsoever such claim is made, arising (in whole or in part)
out of the manufacture, sale and/or use of any of the Manufactured Materials
unless resulting from the proven negligence of Sony;  provided however that SCEE shall give prompt written notice to
Publisher of the assertion of any such claim, and provided further that
Publisher shall have the right to select counsel and control the defence and/or
settlement thereof, subject to the right of SCEE to participate in any such
action or proceeding at its own expense with counsel of its own choosing.  Publisher shall have the exclusive right, at
its discretion, to commence and/or prosecute at its own expense any lawsuit or
to take such other action with respect to such matter as shall be deemed
appropriate by Publisher.  SCEE shall
provide Publisher, at no expense to SCEE, reasonable assistance and
co-operation concerning any such matter. 
SCEE shall not agree to the compromise, settlement or abandonment of any
such claim, action or proceeding without Publisher’s prior written consent.


 


12.      Limitations
of Liability


 


12.1     In no event shall Sony or its suppliers be
liable for prospective profits, or special, incidental or consequential damages
arising out of or in connection with this Agreement (including without
limitation the breach of this Agreement by SCEE), whether under theory of
contract, tort (including negligence), indemnity, product liability or
otherwise.  In no event shall Sony’s
liability arising under or in connection with this Agreement, including without
limitation any liability for direct damages, and including without limitation
any liability under Clause 11.1, exceed **** Except as expressly set forth
herein, no Sony entity, nor any of their respective directors, officers,
employees or agents, shall bear any risk, or have any responsibility or liability,
of any kind to Publisher or to any third parties with respect to the
functionality and/or performance of Licensed Products.


 


12.2     In no event shall Publisher be liable to SCEE
for prospective profits, or special, incidental or consequential damages arising
out of or in connection with this Agreement (including without limitation the
breach of this Agreement by Publisher), whether under theory of contract, tort
(including negligence), indemnity, product liability or otherwise, provided
that Publisher expressly agrees that such limitations shall not apply to
damages resulting from Publisher’s breach of Clauses 2, 3, 4, 9 or 11.2 of
this Agreement.


 


12.3     Subject as expressly provided in
Clauses 10.1 and 10.2, no Sony entity nor its suppliers make, nor does Publisher
receive, any warranties (express, implied or statutory) regarding the Sony
Materials and/or units of Manufactured Materials manufactured hereunder.  Sony shall not be liable for any injury,
loss or damage, direct or consequential, arising out of the use of, or
inability to use, such units of Manufactured Materials.  Without limiting the generality of the
foregoing, any warranties, conditions or other terms implied by statute or
common law (including as to merchantability, satisfactory quality and/or
fitness for a 


 












* Confidential portion omitted and filed separately
with the Securities and Exchange Commission.


 


15

















 


particular purpose and the equivalents thereof under the laws of any
jurisdiction) are excluded to the fullest extent permitted by law.  However, nothing in this Agreement shall
limit Sony’s liability in relation to claims arising from the injury or death
of any person resulting from the proven negligence of Sony.


 


13.      Termination
by SCEE


 


13.1     SCEE shall have the right forthwith to terminate this Agreement by
written notice to Publisher at any time after the occurrence of any of the
following events or circumstances: (i) any material breach of Publisher’s
obligations under this Agreement (or, if Publisher shall also have executed a
PlayStation Non-Disclosure Agreement and/or PlayStation 2 Confidentiality &
Non-Disclosure Agreement which shall have been breached by Publisher, or a
PlayStation Licensed Developer Agreement, PlayStation Licensed Publisher
Agreement, PlayStation 2 Tools & Materials Loan Agreement and/or a
PlayStation 2 Licensed Developer Agreement, or a PlayStation or PlayStation 2
licensed developer, development system or licensed publisher agreement (or
equivalent) with an Affiliate of SCEE, which shall have been terminated for
breach by SCEE or by such party) which breach, if capable of remedy, shall not
have been corrected or cured in full within **** following notice from SCEE (or
the applicable Affiliate of SCEE as the case may be) specifying and requiring
the correction or cure of such breach, or any repetition of a prior material
breach of any such obligation, whether or not capable of remedy; (ii) any
refusal or failure by Publisher to effect payment of Platform Charge, promptly
in accordance with Clauses 7.1 or 7.3 or at all, or a statement that
Publisher is or will be unable to pay, any sum(s) due hereunder, or Publisher
being unable to pay its debts generally as the same fall due;
(iii) Publisher’s filing of an application for, or consenting to or
directing the appointment of, or the taking of possession by, a receiver,
custodian, trustee or liquidator (or the equivalent of any of the foregoing
under the laws of any jurisdiction) of any of Publisher’s property (whether tangible
or intangible and wherever located), assets and/or undertaking; (iv) the
making by Publisher of a general assignment for the benefit of creditors;
(v) an adjudication in any jurisdiction that Publisher is a bankrupt or
insolvent; (vi) the commencing by Publisher of, or Publisher’s intention
to commence, a voluntary case under applicable bankruptcy laws of any
jurisdiction; (vii) the filing by Publisher of, or Publisher’s intention
to file, a petition seeking to take advantage of any other law(s) of any
jurisdiction providing for the relief of debtors; (viii) Publisher’s
acquiescence in, intention to acquiesce in, or failure to have dismissed within
90 (ninety) days, any petition filed against it in any involuntary case
brought pursuant to the bankruptcy or other law(s) of any jurisdiction referred
to in (vi) and (vii) above; (ix) a controlling partnership or equity
interest [or any such interest (other than an acquisition of less than an
aggregate of **** of the issued share capital of Publisher, as quoted on a
recognised investments exchange), in the case of a transfer to any party which
(a) shall previously have executed a PlayStation Non-Disclosure Agreement
and/or PlayStation 2 Confidentiality & Non-Disclosure Agreement which shall
have been breached by such party, or a PlayStation Licensed Developer
Agreement, PlayStation Licensed Publisher Agreement, PlayStation 2 Tools &
Materials Loan Agreement, PlayStation 2 Licensed Developer Agreement and/or a
PlayStation 2 Licensed Publisher Agreement which shall have been terminated for
breach by SCEE, or a PlayStation or PlayStation 2 licensed developer,
development system or licensed publisher agreement (or equivalent) with an
Affiliate of SCEE, which shall have been terminated for breach by such party, or
(b) is, or which directly or indirectly holds or acquires a partnership or
equity interest in, the developer of (or other owner of intellectual property
rights in) any interactive hardware device or product which is or will be
directly or indirectly competitive with PlayStation 2 , or (c) is in
litigation with Sony concerning any proprietary technology, trade secrets
and/or intellectual property matter(s) and/or has challenged the validity of
any Sony Intellectual Property Rights] in Publisher or in all or substantially
all of Publisher’s property (whether tangible or intangible), assets and/or
undertaking, being acquired, directly or indirectly, by any person, firm,
corporation or other entity; 
(x) Publisher enters into any


 












* Confidential portion omitted and filed separately with the Securities
and Exchange Commission.


 


16

















 


third party
business relationship pursuant to which Publisher makes a material contribution
to the development of the core components of any interactive hardware device or
product which is or will be directly or indirectly competitive with PlayStation
2 , or if Publisher directly or indirectly holds or acquires a partnership or
equity interest (other than a holding or acquisition of less than an aggregate
of **** of the issued share capital, as quoted on a recognised investments
exchange) in, or otherwise forms a strategic commercial relationship with, any
third party firm, corporation or other entity which has developed or during the
Term develops (or which owns or during the Term acquires ownership of
intellectual property rights in) any such device or product;  (xi) Publisher failing to submit
materials relating to any new PlayStation 2 format Software in accordance with
Clause 5.2, and/or failing to issue any purchase orders for Manufactured
Materials in accordance with Clause 6.5, during any period of ****; or
(xii) Publisher (or any parent company, subsidiary or affiliate of
Publisher) being in litigation with Sony concerning any proprietary technology,
trade secrets and/or intellectual property matter(s) and/or challenging the
validity of any Sony Intellectual Property Rights. As used in this Clause 13.1,
“controlling interest” means (i) in relation to a body corporate, the power
of the holder of such interest to secure - (a) by means of the holding of
shares or the possession of voting power in, or in relation to, that or any
other body corporate or (b) by virtue of any powers conferred by the
Articles of Association or other document regulating that or any other body
corporate - that the affairs of such body corporate be conducted in accordance
with the wishes of the holder of such interest, and (ii) in relation to a
partnership, the right to a share of more than **** of the assets or of the
income of the partnership.  Forthwith
upon such occurrence, Publisher shall notify SCEE of the occurrence of any of
the events or circumstances specified in (ii) to (x) above; and Publisher’s
failure so to do shall be a material breach of this Agreement not capable of
remedy.


 


13.2     Further,
SCEE shall have the right by written notice to Publisher forthwith to terminate
the licences and related rights herein granted to Publisher in relation to any
PlayStation 2 format Software at any time after the occurrence of any of the
following events: (i) any failure by Publisher to submit to SCEE the
materials required to be submitted under Clauses 5.2 and 5.3 (or, if
applicable, under Clause 5.6) in the form and manner and in conformity
with the standards and specifications therein prescribed; and (ii) any
failure by Publisher promptly to notify SCEE in writing of any material change
to any of the materials approved by SCEE pursuant to Clause 5.4 (or, if
applicable, pursuant to Clause 5.6); provided however that SCEE shall not
be entitled to exercise such right of termination if Publisher’s failure under
(i) above is directly caused by SCEE’s failure to comply with any of its
material obligations expressly set forth herein.


 


14.      Effect of
Expiration or Termination


 


14.1     Notwithstanding
the expiration of the Term, Publisher shall be entitled to continue to publish
PlayStation 2 format Software the development of which shall have been approved
prior to or during the Term hereof by SCEE (or by an Affiliate of SCEE)
pursuant to the applicable LDA 2, and to use the Licensed Trademarks strictly,
only and directly in connection with such publication, until the expiration of
the Term or, if later, until the second anniversary of the 31 March next
following such approval.  Upon
expiration of the Term or, if applicable, such extended period for publishing
PlayStation 2 format Software, Publisher may sell off existing inventories of
the applicable PlayStation 2 format Software titles, on a non-exclusive basis,
for a period of **** from the applicable expiration date; provided always that
such inventory thereof shall not have been manufactured solely or principally
for sale within such sell-off period.


 


14.2     However,
upon the exercising by SCEE of its right of termination, either of this
Agreement pursuant to Clause 13.1(i) to (viii) or Clause 13.1(xii) or in
relation to any PlayStation 2 format Software pursuant to Clause 13.2, all
rights, licences and privileges licensed or otherwise granted to Publisher
hereunder, either generally or in relation to such PlayStation 2 format
Software (as applicable), shall


 












* Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.


 


17

















 


forthwith and
without further formality revert absolutely to SCEE and Publisher shall
forthwith cease and desist from any further use of the Sony Materials, any Sony
Intellectual Property Rights related thereto and the Licensed Trademarks, and,
subject to Clause 14.3, shall have no further right to continue the
marketing, sale and/or distribution of any units of Licensed Product or of any
units of Licensed Product derived from such PlayStation 2 format Software (as
applicable).


 


14.3     In the event
of termination by SCEE pursuant to Clause 13.1(ix), (x) or (xi) or by
Publisher pursuant to Clause 25, Publisher may sell off then unsold units
of Licensed Product(s), for a period of **** from the effective date of
termination; provided always that such inventory thereof shall not have been
manufactured solely or principally for sale within such sell-off period.  Subsequent to the expiry of such **** or
**** sell-off period, or in the event of termination by SCEE pursuant to
Clause 13.1(i) to (viii), Clause 13.1(xii) or Clause 13.2, any
and all units of Licensed Products or the applicable Licensed Products (as the
case may be) remaining in Publisher’s inventory and/or under its control shall
be destroyed by Publisher within **** following such expiry or effective date
of termination.  Within 5 (five)
working days following such destruction, Publisher shall furnish SCEE an
itemised statement, certified accurate by a duly authorised officer, partner or
other representative (as applicable) of Publisher, specifying the number of
then unsold units of Licensed Product(s) to which such termination applies, on
a PlayStation 2 format Software title-by-title basis, which remain in its
inventory and/or under its control at such date, confirming the number of units
of Licensed Products destroyed, on a PlayStation 2 format Software
title-by-title basis, and indicating the location and date of such destruction
and the disposition of the remains of such destroyed materials.  SCEE shall be entitled to conduct a physical
inspection of Publisher’s inventory during normal business hours in order to
ascertain or verify such inventory and/or statement.


 


14.4     Upon termination of the Term by SCEE
pursuant to Clause 13.1, Publisher shall forthwith deliver up to SCEE (or,
if so requested by SCEE in writing, destroy and promptly furnish SCEE a
certificate of such destruction signed by a duly authorised officer, partner or
other representative (as applicable) of Publisher) all Sony Materials, and any
Confidential Information of Sony of which Publisher shall have become apprised
and which has been reduced to tangible or written form, and any and all copies
thereof then in the possession, custody or control of Publisher.


 


14.5     SCEE shall
be under no obligation to renew or extend this Agreement notwithstanding any
actions taken by either of the parties prior to its expiration or earlier
termination.  In the event of
termination pursuant to Clauses 13.1 or 13.2, no part of any payment(s)
whatsoever theretofore made to SCEE hereunder (or, if Publisher shall also have
executed a LDA 2, thereunder) shall be owed or repayable to Publisher, and nor
shall either party be liable to the other for any damages (whether direct,
consequential or incidental, and including without limitation any expenditures,
loss of profits or prospective profits) sustained or arising out of, or alleged
to have been sustained or to have arisen out of, such expiration or earlier
termination.  However, the expiration or
earlier termination of this Agreement shall not excuse either party from any
prior breach of any of the terms and provisions of this Agreement or from any
obligations surviving such expiration or earlier termination, and full legal
and equitable remedies shall remain available for any breach or threatened
breach of this Agreement or of any obligations arising therefrom.


 


14.6     The
expiration or earlier termination of this Agreement (whether by SCEE pursuant
to Clause 13 or otherwise howsoever) shall be without prejudice to any and
all rights and remedies which either party may then or subsequently have
against the other party.


 


15.      Notices


 


15.1     All notices
under this Agreement shall be in writing and shall be given by courier or other
personal delivery, by registered or certified mail, by recognised international
courier service or by facsimile transmission (with an immediate confirmation
copy by regular mail or any of the methods specified


 












* Confidential portion omitted and filed separately
with the Securities and Exchange Commission.


 


18

















 


above) at the
appropriate address hereinbefore specified or at a substitute address
designated by notice by the party concerned (and in the case of notices to SCEE
shall be directed to its Vice President, Business Affairs or such other Sony
representative as shall from time to time be designated by notice by
SCEE).  Notices given other than by
facsimile transmission shall be deemed given and effective when delivered.  Notices given by facsimile transmission
shall be deemed given only upon receipt of confirmation copy as aforesaid but,
upon such receipt, shall be deemed effective as of the date of transmission.


 


15.2     Whenever
Publisher is required to obtain the authorisation, consent or approval of SCEE,
Publisher shall request the same by notice to SCEE as aforesaid, and with a
copy under separate cover to its Director of Third Party Relations or such
other Sony representative as shall from time to time be designated by notice to
Publisher.  Such authorisation, consent
or approval shall not be deemed to be granted unless and until SCEE shall have
given a written affirmative response to each request therefor and shall in no
event be implied or inferred from any delay or failure of SCEE to give such or
any response.


 


16.      Force
Majeure


 


Neither SCEE nor Publisher shall be liable for any
loss or damage or be deemed to be in breach of this Agreement if its failure to
perform, or failure to cure any breach of, its obligations under this Agreement
results from any events or circumstances beyond its reasonable control, including
without limitation any natural disaster, fire, flood, earthquake or other act
of God, inevitable accidents, lockout, strike or other labour dispute, riot or
civil commotion, act of public enemy, enactment, rule, order or act of any
government or governmental authority, failure of technical facilities, or
failure or delay of transportation facilities.


 


17.      Relationship
of the Parties


 


The relationship hereunder between SCEE and Publisher
respectively is that of licensor and licensee. 
Publisher is an independent contractor and shall not in any respect act
as or be deemed to be the legal representative, agent, joint venturer, partner
or employee of SCEE for any purpose whatsoever.  Neither party shall have any right or authority to assume or
create any obligations of any kind or to make any representation or warranty
(express or implied) on behalf of the other party or to bind the other party in
any respect whatsoever.


 


18.      Assignability


 


SCEE
has entered into this Agreement based on the particular reputation,
capabilities and experience of Publisher and of its officers, directors and
employees.  Accordingly, Publisher may
not assign, pledge or otherwise dispose of this Agreement or of any of its
rights hereunder, nor delegate or otherwise transfer any of its obligations
hereunder, to any third party unless the prior written consent of SCEE shall
first have been obtained in each case. 
Any attempted or purported assignment, pledge, delegation or other
disposition in contravention of this Clause 18 shall be null and void and a
material breach of this Agreement not capable of remedy.  SCEE shall be entitled, without the consent
of Publisher, to assign its rights and obligations hereunder to any corporation
or other entity in which Sony Corporation (or any successor in interest
thereto) holds a controlling interest, whether directly or indirectly.  Subject to the foregoing, this Agreement
shall enure to the benefit of the parties and their respective successors and
permitted assigns.


 


A person who is not party to this Agreement shall have
no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any
term of this Agreement. This provision does not affect any right or remedy of
any person which exists or is available otherwise than pursuant to such Act.


 


19

















 


19.      Compliance
with Applicable Laws


 


The parties shall at all times comply with all
applicable regulations and orders of their respective countries and all
conventions and treaties to which their countries are party or relating to or
in any way affecting this Agreement and the performance by the parties of this
Agreement.  Each party, at its own
expense, shall negotiate and obtain any approval, licence or permit required
for the performance of its obligations hereunder, and shall declare, record or
take such steps as may be necessary to render this Agreement binding, including
without limitation any required filing of this Agreement with any appropriate
governmental authorities.


 


20.      Governing
Law


 


This Agreement shall be governed by, construed and
interpreted in accordance with English Law, without giving effect to the
conflict of laws principles thereof. 
The parties irrevocably agree for the exclusive benefit of SCEE that the
English Courts shall have jurisdiction to adjudicate any proceeding, suit or
action arising out of or in connection with this Agreement.  However, nothing contained in this
Clause 20 shall limit the right of SCEE to take any such proceeding, suit
or action against Publisher in any other court of competent jurisdiction, nor
shall the taking of any such proceeding, suit or action in one or more
jurisdictions preclude the taking of any other such proceeding, suit or action
in any other jurisdiction, whether concurrently or not, to the extent permitted
by the law of such other jurisdiction. 
Publisher shall have the right to take any such proceeding, suit or
action against SCEE only in the English Courts.


 


21.      Remedies


 


Publisher acknowledges and agrees that any breach by
Publisher of this Agreement may cause Sony irreparable harm and damage which
may not be capable of remedy by damages alone and therefore that in the event
of any such breach SCEE may seek equitable (including injunctive) relief
against Publisher in addition to damages and/or any other remedy available to
SCEE at law or in equity.  Either
party’s election to avail itself of any of the remedies provided for in this
Agreement shall not be exclusive of any other remedies available hereunder or
otherwise at law or in equity, and all such remedies shall be cumulative.  Publisher shall indemnify SCEE for all
losses, liabilities, damages, expenses and costs, including without limitation
reasonable fees for lawyers, expert witnesses and litigation costs, which SCEE
may sustain or incur as a result of any breach or threatened breach by
Publisher of this Agreement.


 


22.      Severability


 


In the event that any provision of this Agreement (or
any part(s) thereof), other than a provision in respect of which SCEE gives a
notice of amendment pursuant to Clause 25, is determined by a court of
competent jurisdiction to be invalid or otherwise unenforceable, such provision
(or part(s) thereof) shall be enforced to the extent possible consistent with
the stated intention of the parties or, if incapable of such enforcement, shall
be deemed to be deleted from this Agreement, but not in any way so as to affect
the validity or enforceability of any other provisions of this Agreement which
shall continue in full force and effect.


 


23.      Provisions Surviving
Expiration or Termination


 


The
following provisions of this Agreement shall survive and continue in full force
and effect notwithstanding its expiration or earlier termination (whether by
SCEE pursuant to Clause 13 hereof or otherwise howsoever):


 


	
  Clause 3

  	
   

  	
  Sub-Publishers

  
	
  Clause 4

  	
   

  	
  Reservations

  
	
  Clause 5.7 + 5.8

  	
   

  	
  Notices & Consumer Advisory Ratings

  
	
  Clause 6

  	
   

  	
  Manufacture of Licensed Products

  
	
  Clause 7

  	
   

  	
  Platform Charge

  



 


20

















 


	
  Clause 9

  	
   

  	
  Confidentiality

  
	
  Clause 10.2 to 10.4

  	
   

  	
  Warranties

  
	
  Clause 11

  	
   

  	
  Indemnities

  
	
  Clause 12

  	
   

  	
  Limitations of Liability

  
	
  Clause 14

  	
   

  	
  Effect of Expiration or Termination

  
	
  Clause 18

  	
   

  	
  Assignability

  
	
  Clause 20

  	
   

  	
  Governing Law

  
	
  Clause 21

  	
   

  	
  Remedies

  
	
  Clause 22

  	
   

  	
  Severability

  



 


24.      Waiver


 


No failure or delay by either party in exercising any
right, power or remedy under this Agreement shall operate as a waiver of any
such right, power or remedy.  No waiver
of any provision of this Agreement shall be effective unless in writing and
signed by the party against whom it is sought to enforce such waiver.  Any waiver by either party of any provision
of this Agreement shall not be construed as a waiver of any other provision of
this Agreement, nor shall such waiver operate or be construed as a waiver of
such provision in relation to any future event or circumstance.


 


25.      Amendments


 


Nothing in this Agreement shall be read or applied in
such a way as to frustrate Article 6 and, if and to the extent any provision of
this Agreement (or any part thereof) has (or is capable of having) such effect,
it shall be deemed modified accordingly.


 


SCEE reserves the right, at any time upon reasonable
notice to Publisher, to amend the relevant provisions of this Agreement, the
Schedules hereto and/or the specifications herein referred to, to take account
of or in response to any decision or order of, or objection raised by, any
court or governmental or other competition authority of competent jurisdiction
and/or any statutory or similar measures which might be implemented to give
effect to any such decision, which apply to this Agreement, the Schedules
hereto and/or the Specifications herein referred to (and from which this
Agreement, the Schedules hereto and/or the Specifications herein referred to
are not exempt) or to reflect any undertaking given by Sony to any such
authority in relation to any and all such matters aforesaid.  Any such amendment shall be of prospective
application only and shall not be applied to any Licensed Product materials
relating to which shall have been submitted to SCEE by Publisher pursuant to
Clause 5.2 and/or 5.3 prior to the date of SCEE’s notice of
amendment.  In the event that Publisher
is unwilling to accept any such amendment, then Publisher shall have the right
forthwith to terminate this Agreement by written notice to SCEE given not more
than **** following the date of SCEE’s notice of amendment.  The provisions of Clause 14.3 shall
come into effect upon any such termination by Publisher.


 


Subject to the foregoing and except as otherwise
provided herein, this Agreement shall not be subject to amendment, change or
modification other than by another written instrument duly executed by both of
the parties hereto.


 


26.      Headings


 


The clause and other headings contained in this
Agreement are intended primarily for reference purposes only and shall not
alone determine the construction or interpretation of this Agreement or any
provision(s) hereof.


 


27.      Integration


 


This document (including the Schedules hereto)
constitutes the entire agreement between the parties with respect to the
subject matter contained herein, and supersedes all prior or contemporaneous
agreements,


 












* Confidential portion omitted and filed separately
with the Securities and Exchange Commission.


 


21

















 


proposals, understandings and communications between
Sony and Publisher, whether oral or written, with respect to the subject matter
hereof.  However, the generality of the
foregoing notwithstanding, the CNDA and, if applicable, the LDA 2 executed by
Publisher shall continue in full force and effect.


 


28.      Counterparts


 


This Agreement may be executed in 2 (two)
counterparts, each of which shall be deemed an original, and both of which
together shall constitute one and the same instrument.


 


IN WITNESS WHEREOF the parties hereto have caused this
Agreement to be executed as of the date first above written.


 


 


SONY COMPUTER ENTERTAINMENT                                                 THQ INTERNATIONAL LIMITED


EUROPE LIMITED


 


 


	
  /s/ Christopher Deering

  	
   

  	
  /s/ Tim Walsh

  	
   

  
	
  Signature

  	
  Signature

  
	
   

  	
   

  
	
  Christopher Deering

  	
   

  	
  /s/ Tim Walsh

  	
   

  
	
  Name

  	
  Signatory’s Name (please print)

  
	
   

  	
   

  
	
  President

  	
   

  	
  Director

  	
   

  
	
  Title

  	
  Title

  



 


22

















 


SCHEDULE
1


 


to the
PlayStation 2 Licensed Publisher Agreement dated the 28th day of July 2003


between
Sony Computer Entertainment Europe Limited and THQ International Limited


 


Licensed
Territory (Clause 1.2)


(1)


	
  Albania

  	
  Ireland

  	
  Portugal

  
	
  Algeria

  	
  Israel

  	
  Qatar

  
	
  Andorra

  	
  Italy

  	
  Romania

  
	
  Australia

  	
  Jordan

  	
  San Marino

  
	
  Austria

  	
  Kenya

  	
  Saudi Arabia

  
	
  Bahrain

  	
  Kosovo

  	
  Senegal

  
	
  Bangladesh

  	
  Kuwait

  	
  Serbia

  
	
  Belgium

  	
  Latvia

  	
  Slovakia

  
	
  Bosnia Herzegovina

  	
  Lebanon

  	
  Slovenia

  
	
  Botswana

  	
  Liechtenstein

  	
  Somalia

  
	
  Bulgaria

  	
  Lithuania

  	
  South Africa

  
	
  Cameroon

  	
  Luxembourg

  	
  Spain

  
	
  Croatia

  	
  Macedonia

  	
  Sudan

  
	
  Cyprus

  	
  Madagascar

  	
  Sweden

  
	
  Czech Republic

  	
  Malta & Gozo

  	
  Swaziland

  
	
  Denmark

  	
  Mauritius

  	
  Switzerland

  
	
  Djibouti

  	
  Moldova

  	
  Syria

  
	
  Egypt

  	
  Monaco

  	
  Tanzania

  
	
  Estonia

  	
  Montenegro

  	
  Tunisia

  
	
  Ethiopia

  	
  Morocco

  	
  Turkey

  
	
  Fiji

  	
  Mozambique

  	
  Uganda

  
	
  Finland

  	
  Namibia

  	
  United Arab Emirates

  
	
  France

  	
  Netherlands

  	
  United Kingdom

  
	
  Germany

  	
  New Zealand

  	
  Vatican

  
	
  Ghana

  	
  Nigeria

  	
  Yemen

  
	
  Gibraltar

  	
  Norway

  	
  Zaire

  
	
  Greece

  	
  Oman

  	
  Zambia

  
	
  Greenland

  	
  Pakistan

  	
  Zimbabwe

  
	
  Hungary

  	
  Papua New Guinea

  	
   

  
	
  Iceland

  	
  Poland

  	
   

  



 


and all other
countries which from time to time are members of the European Union or have
otherwise implemented the Treaty on a European Economic Area or where Articles
85 & 86 of the Treaty of Rome (or provisions similar thereto) have been
implemented or are otherwise directly effective.


 


(2)       Such
countries in addition to those specified in (1) above in which the PAL
television standard obtains and which SCEE, in its sole discretion as
representative of Sony Computer Entertainment worldwide, determines from time
to time to include within the Licensed Territory by notice to Publisher.  Without limiting the generality of the
foregoing, SCEE shall have the right not to include within the Licensed
Territory or, having included, subsequently to exclude from the Licensed
Territory by reasonable notice to Publisher (and intends so to exclude) any
such country or countries in which, in SCEE’s best business judgement, the laws
or enforcement of such laws do not protect Sony Intellectual Property
Rights.  By not later than the expiry of
any such notice of exclusion, Publisher shall cease and desist, in the country
or countries concerned, from any further use of the Sony Materials, any Sony
Intellectual Property Rights related thereto and the Licensed


 


23

















 


Trademarks and
shall have no further right to continue or authorise the marketing, sale and/or
distribution of any units of PlayStation 2 format Software.


SCHEDULE 2


 


to the
PlayStation 2 Licensed Publisher Agreement dated the 28th  day of July 2003


between
Sony Computer Entertainment Europe Limited and THQ International Limited


 


Platform Charge (Clause 7.1)
(retail products only)


 


	
  Band

  	
   

  	
  Publisher’s maximum

  price to trade

  	
   

  	
  Platform Charge

  per unit

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  #1

  	
   

  	
   

  	
  ****

  	
   

  	
  ****

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  #2

  	
   

  	
   

  	
  ****

  	
   

  	
  ****

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  #3

  	
   

  	
   

  	
  ****

  	
   

  	
  ****

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  #4

  	
   

  	
   

  	
  ****

  	
   

  	
  ****

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  #5

  	
   

  	
   

  	
  ****

  	
   

  	
  ****
  plus **** x price to trade

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Platinum2

  	
   

  	
   

  	
  ****

  	
   

  	
  ****

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  or

  	
  ****

  	
   

  	
  ****

  



 


The qualifying
criterion for Platinum2 is aggregate purchase orders of **** units in Band 2 or
above; and SCEE reserves the right to review and adjust the qualifying
criterion from time to time.


 


A Platinum2 version may not be released until at least
**** following release of the first-run version of the same title.


 


An **** “use it or lose it” rule will also apply – the first PO for a
Platinum2 version must be placed no more than **** after placing the initial PO
for the first-run version of the same title.


 


For these purposes, “maximum price to trade” shall
mean ~


 


Publisher’s
(or, where applicable, Publisher’s distributor’s) highest price net of trade
margin to any trade customer in the European Economic Area and Australia for
Publisher’s (or, where applicable, Publisher’s distributor’s) minimum order
quantity of the relevant inventory, net of year end (or similar) volume rebates
(if any) properly attributable to sales of PlayStation 2 format Software, but
prior to any credit, deduction or rebate for co-op advertising or other
marketing support, returns or otherwise howsoever.


 


Where
Publisher’s business (with the trade or through distributors) is conducted in
local currencies other than €€, the local currency/€€ exchange rates to be
applied for purposes of conforming to maximum price to trade for any given Band
will be the closing mid-point spot rate as quoted in the London “Financial
Times” on the first business day of each **** period, commencing 1 April 2000.
Such exchange rate will then reset for each successive **** period thereafter


 


The
local currency maximum price to trade for any given title will then be that
derived by applying the exchange rate obtaining for the **** period (as above)
in which Publisher places its first purchase order for the title concerned and
will continue to apply for that title unless and until, on migration (see
below), Publisher places its first PO in a different Band in a subsequent ****
period.


 












*
Confidential portion omitted and filed separately with the Securities and
Exchange Commission.


 


24

















 


SCEE reserves the right to review local currency maximum
prices to trade per Band applicable for any given **** period (as above) in the
event of a material exchange rate fluctuation, deemed for these purposes to be
+/- ****.


 


The foregoing assumes a standard 1-Disc PlayStation 2
CD-ROM product and covers mastering, Disc, high definition 4-colour picture
Disc Label, PlayStation 2 box (or other packaging) and automated assembly of
all components, but excludes the cost of Printed Materials other than Disc
Label.


 


****


 


The
Platform Charge and minimum order and reorder quantities for other
“non-standard” Manufactured Materials and/or production processes (subject to
availability) shall be as individually quoted in each case.


 


*              *              *              *              *


 


****


*              *              *              *              *


****


*              *              *              *              *


****


 


*              *              *              *              *


 


PlayStation2 Hit Title Rebate & Global
Volume Discount program.


 


For retail inventory
only, orders in Band 2 or above (including Platinum or Platinum2) both of
software for Sony’s “PlayStation” predecessor video entertainment system and
for PlayStation 2 format Software will be eligible for Hit Title Rebate (“HTR”)
in any event but may qualify for Global Volume Discount (“GVD”) as set out in
the table below. (GVD is a higher value alternate to, not cumulative with,
HTR.)


 


Qualification for GVD in each fiscal year (1 April ~
31 March) will be determined by reference to aggregate global purchase orders
of PlayStation and of PlayStation2 titles in the prior fiscal (but GVD itself
will be calculated on a per-title per-Region basis). Orders for PlayStation
software (in one Band only per title) and for PlayStation 2 format Software in
each qualifying fiscal year will be taken into account in calculating
eligibility for and the Level of GVD for the following fiscal year. Only titles
with bona
fide orders of **** or more in Band 2 or above (including Platinum
or Platinum2) in at least one SCE Region (i.e. PAL territories, Japan or North
America) in the applicable qualifying fiscal year will be taken into account
for these purposes.


Once
eligible (as above), GVD for each fiscal year will be at one of the following
levels ~


 


Level 1
(**** global units in qualifying fiscal year, i.e. immediately preceding 1
April ~ 31 March), Level 2 (**** global units in qualifying fiscal year),


Level 3 (**** global units in qualifying fiscal year).


 


HTR or
GVD will be redeemable in the applicable fiscal year as follows ~


 












* Confidential portion omitted and filed separately
with the Securities and Exchange Commission.


 


25

















 


	
  units per
  title *

  	
   

  	
  HTR

  	
   

  	
  Level
  1

  	
   

  	
  Level
  2

  	
   

  	
  Level
  3

  	
   

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  



 


•      NB: per title, not per
SKU and not cumulative across all PlayStation/PlayStation2 titles


 


 


HTR and GVD will apply to the “platform
royalty” portion of platform charge which for these purposes only shall be
deemed to be the platform charge for a 1-Disc CD format PlayStation or
PlayStation2 product in the applicable Band less €uros ****/unit.


 


Counting for HTR and GVD purposes will run
for **** per title (“the 4Qs rule”), the first such quarter being that in which
the relevant title is first ordered. Such counting will reset to unit #1 for
reorders from the close of the fourth quarter following first order (or, if
earlier, upon migration to a lower Band including Platinum or Platinum2) (i.e.
reorders for the same title after reset under the 4Qs rule or in a different
Band will be counted for these purposes as orders for a new “title”).


 


A “once on a ladder, always on the same
ladder” rule will apply. The HTR or GVD “ladder” (see table above) for each
title is determined by Publisher’s HTR or GVD (Level 1, Level 2 or Level 3)
eligibility for the fiscal year (1 April ~ 31 March) in which the title is
first ordered.  Such title continues to
climb that “ladder” for HTR or GVD accrual purposes until the close of the ****
under the **** rule (or, if earlier, until migration to a lower Band including
Platinum or Platinum2) even if Publisher is qualified for a higher or lower GVD
Level or is only qualified for HTR in the fiscal year following that in which
the title was first ordered. Upon reset under the **** rule (or, if earlier,
upon migration to a lower Band including Platinum or Platinum2), each title
starts counting again from unit #1 but on the “ladder” for the GVD Level or for
HTR for which Publisher is eligible in the fiscal year in which reset occurs.


 


By way of illustration ~


 


Title “X” is first ordered in ****. Publisher of Title “X”
is eligible for GVD Level 1 in ****. Title “X” therefore accrues GVD on the
Level 1 “ladder” (starting at **** for the first **** units) and, provided it
is still re-ordering in the original Band (no migration), will stay on the same
“ladder” until **** when it will reset and start counting again from unit #1
under the **** rule. It does not cross over to a different “ladder” from ****
even if Publisher is eligible for GVD Level 2 or Level 3 or falls back to HTR
in ****.


 


However, when Title “X” resets as at **** under the ****
rule, it will then, if still re-ordering in the original Band, cross over to
the applicable higher or lower “ladder”.


 


HTR and GVD will “cascade” back to unit #1
and first tier GVD (**** as applicable) will be discounted off-invoice at time
of order. However, HTR and higher tier(s) GVD will be accrued to be posted as a
credit to Publisher’s LPA account following reset under the **** rule (or, in
the case of earlier migration to a lower Band including Platinum or Platinum2,
following the close of the calendar quarter in which migration occurs).


 


HTR and GVD will “follow the licence”.


 












* Confidential portion omitted and filed
separately with the Securities and Exchange Commission.


 


26

















 


Thus, for example, where Publisher X (e.g. In Europe)
licences a PS2 product in from Publisher Y (e.g. In Japan) and Publisher X acts
as publisher-of-record in PAL territories (i.e. Places purchase orders and
makes payments in its own name), then the benefit of HTR or GVD on that product
in PAL territories will accrue to Publisher X. However, if the business
arrangement between Publisher X and Publisher Y is one of distribution (not
licence), with Publisher Y itself acting as publisher-of-record in the
distribution territory, then the benefit of HTR or GVD will accrue to Publisher
Y.


 


But, for example, where Publisher X licences a PS2 product
of its own out to Publisher Z (e.g. In USA) and Publisher Z acts as
publisher-of-record in the North American territory, then the benefit of HTR or
GVD on that product in the North American territory will accrue to Publisher Z.
Whereas, if the business arrangement between Publisher X and Publisher Z is one
of distribution (not licence), with Publisher X itself acting as
publisher-of-record in the distribution territory, then the benefit of HTR or
GVD will accrue to Publisher X.


 


*              *              *              *              *


 


Please  note that the
implementation of HTR and GVD by Affiliates of SCEE in Japan and North America
may not be identical in all respects and particulars with its implementation
(as above) in PAL territories.


 


*              *              *              *              *


 


Demo Discs


 


PlayStation 2 Demo Discs are available.
Demos must be from one games Publisher only, and content will be limited to a
maximum of **** playable and/or **** non-playable demo segments. Platform
charge is €uros **** for CD or DVD5 format (without DVD supplement). Demos will
have a standard 2-colour Disc Label and be supplied in the standard
PlayStation2 amaray case (included in platform charge). Additional Disc Label
colours will be charged for as below. An Inlay must be provided as Printed
Materials. Minimum order quantities are **** units for an initial order, ****
units for reorders. However, where a separate Demo Disc sku is required for
Germany (to comply with the new German law which requires age ratings to appear
not only on the outer packaging but also on the Disc Label ~ and please note
this applies only for product distributed in the German market), the minimum
order quantity for initial and reorders of that sku is **** units. Demo Discs
do not attract, and are not taken into account for purposes of determining
eligibility for, HTR or GVD.


 


	
  •

  	
  Multi-Colour
  Disc Label

  	
   

  	
   

  	
   

  
	
   

  	
  3-colour

  	
   

  	
  **** per
  Disc

  	
   

  
	
   

  	
  4-colour

  	
   

  	
  **** per
  Disc

  	
   

  
	
   

  	
  5-colour

  	
   

  	
  **** per
  Disc

  	
   

  
	
   

  	
  6-colour

  	
   

  	
  **** per
  Disc

  	
   

  
	
  •

  	
  White
  Base Underlay

  	
   

  	
  **** per Disc

  	
   

  



 


*              *              *              *              *


 


Promo Discs


 


PlayStation 2 Promo Discs, comprising the
complete game for press & retail review, etc, are available. Platform
charge is €uros **** unit subject to additional disc charge and/or DVD
supplement where applicable. Promos will have a standard “blue over, silver
out” Disc Label and be supplied in a


 












* Confidential portion omitted and filed
separately with the Securities and Exchange Commission.


 


27

















 


“maxicase” (standard audio CD single
jewelcase) (included in platform charge). An optional j-card may be added as Printed
Materials. The minimum order quantity (initial orders and reorders) is ****
units per sku. The maximum order quantity, single orders or in the aggregate
per title, is **** units. Promo Discs do not attract, and are not taken into
account for purposes of determining eligibility for, HTR or GVD.


 


*              *              *              *              *


 


In order to verify conformity with the Band structure
for PlayStation 2 format Software described above, SCEE will require from time
to time at its own expense to inspect and audit the relevant of Publisher’s
financial records (and, where applicable, those of Publisher’s associated
companies, subsidiaries and/or branch offices in the Licensed Territory). Any
such inspection and audit shall take place during normal business hours at
Publisher’s principal place of business (or such other location as the relevant
books and records are maintained) upon reasonable prior notice and shall, at
SCEE’s sole election, be conducted either by an independent chartered or
certified accountant or by an appropriately professionally qualified member of
SCEE’s staff.


 


	
  Initialled
  by

  	
   

  	
  Initialled
  by

  
	
  /s/CD

  	
   

  	
  /s/TW

  
	
  Sony
  Computer Entertainment Europe

  	
   

  	
  THQ International
  Limited

  



 












* Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.


 


28