**Exhibit 10.32**

 

**CONFIDENTIAL LICENSE AGREEMENT**

**FOR NINTENDO DS (Western Hemisphere)**

 

THISLICENSE AGREEMENT (“Agreement”) is entered into between NINTENDO OF AMERICAINC. (“NOA”), at 4820 150th Avenue N.E., Redmond, WA  98052 Attn: General Counsel (Fax:  425-882-3585)and THQ Inc. (“LICENSEE”) at 27001 Agoura Road, Suite 325, CalabasasHills, CA 91301 Attn:  Brian J. Farrell(Fax: (818) 871-7400).  NOA andLICENSEE agree as follows:

 

**1.****                                      RECITALS**

 

1.1                                 NOAmarkets and sells advanced design, high-quality video game systems, includingthe Nintendo DS system.

 

1.2                                 LICENSEEdesires a license to use highly proprietary programming specifications,development tools, trademarks and other valuable intellectual property rightsof NOA and its parent company, Nintendo Co., Ltd. (collectively “Nintendo”), todevelop, have developed (subject to Section 4.2 below), have manufactured,advertise, market and sell video game software for play on the Nintendo DSsystem.

 

1.3                                 NOAis willing to grant a license to LICENSEE on the terms and conditions set forthin this Agreement.

 

**2.****                                      DEFINITIONS**

 

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

 

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

 

2.3                                 “DevelopmentTools” means the development kits, programming tools, emulators and othermaterials that may be used in the development of Games under this Agreement.

 

2.4                                 “EffectiveDate” means November 1, 2004.

 

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

 

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

 

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

 

2.8                                 “Guidelines”means the current version or any future revision of the “Nintendo DS PackagingGuidelines”, “Nintendo DS Development Manual” and related guidelines providedby NOA to LICENSEE.

 

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

 

2.10                           “IntellectualProperty Rights” means individually, collectively or in any combination,Proprietary Rights owned, licensed or otherwise held by Nintendo that areassociated with the development, manufacturing, advertising, marketing or saleof the Licensed Products, including, without limitation, (a) registeredand unregistered trademarks and trademark applications used in connection with

 

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Games for the Nintendo DS systemincluding “Nintendo®”, “Nintendo DSTM”, “DSTM”, and the “Official Nintendo Seal®”,(b) select trade dress associated with the Nintendo DS system and licensedGames for play thereon, (c) Proprietary Rights in the Security Technologyincorporated into the Game Cards, (d) rights in the Development Tools foruse in developing the Games, (e) patents or design registrationsassociated with the Game Cards, (f) copyrights in the Guidelines, and (g) otherProprietary Rights of Nintendo in the Confidential Information (as defined in Section 8.1).

 

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

 

2.12                          “MarketingMaterials” means marketing, advertising or promotional materials developed byor for LICENSEE (or subject to LICENSEE’s approval) to promote the sale of theLicensed Products, including, but not limited to, television, radio and on-lineadvertising, point-of-sale materials (e.g. posters, counter-cards), packageadvertising and print media or materials.

 

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

 

2.14                           “Notice”means any notice permitted or required under this Agreement.  All notices shall be sufficiently given when (a) personallyserved or delivered, (b) transmitted by facsimile, with an original sentconcurrently by first class U.S. mail, or (c) deposited, postage prepaid,with a guaranteed air courier service, in each case addressed as stated herein,or addressed to such other person or address either party may designate in aNotice.  Notice shall be deemed effectiveupon the earlier of actual receipt or two (2) business days aftertransmittal.

 

2.15                          “PriceSchedule” means the current version or any future revision of NOA’s schedule ofpurchase prices and minimum order quantities for Finished Products and BulkGoods.

 

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

 

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

 

2.18                          “ReverseEngineer(ing)” means, without limitation, (a) the x-ray, electronicscanning or physical or chemical stripping of semiconductor components, (b) thedisassembly, decompilation, decryption or simulation of object code orexecutable code, or (c) any other technique designed to extract sourcecode or facilitate the duplication of a program or product.

 

2.19                          “SecurityTechnology” means, without limitation, any security signature, bios, datascrambling, password, hardware security apparatus, watermark, hologram,encryption, Digital Rights management system, copyright management informationsystem or any feature that facilitates or limits compatibility with otherhardware, software, or accessories or other peripherals outside of theTerritory or on a different video game system.

 

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

 

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

 

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**3.****                                      GRANTOF LICENSE; LICENSEE RESTRICTIONS**

 

3.1                                 LimitedLicense Grant.  For the Term and forthe Territory, NOA grants to LICENSEE a nonexclusive, nontransferable, limitedlicense to use the Intellectual Property Rights to develop, and have developed(subject to Section 4.2 below), Games for manufacture, advertising,marketing and sale as Licensed Products, subject to the terms and conditions ofthis Agreement.  Except as permittedunder a separate written authorization from Nintendo, LICENSEE shall not usethe Intellectual Property Rights for any other purpose.

 

3.2                                 LICENSEEAcknowledgement.  LICENSEEacknowledges (a) the valuable nature of the Intellectual Property Rights, (b) theright, title, and interest of Nintendo in and to the Intellectual PropertyRights, and (c) the right, title and interest of Nintendo in and to theProprietary Rights associated with all aspects of the Nintendo DS system.  LICENSEE recognizes that the Games, GameCards and Licensed Products will embody valuable rights of Nintendo andNintendo’s licensors.  LICENSEErepresents and warrants that it will not knowingly undertake any act or thingthat in any way impairs or is intended to impair any part of the right, title,interest or goodwill of Nintendo in the Intellectual Property Rights.  LICENSEE’s use of the Intellectual PropertyRights shall not create any right, title or interest of LICENSEE therein.  ****

 

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

 

(a)                                  grantaccess to, distribute, transmit or broadcast a Game by electronic means or byany other means known or hereafter devised, including, without limitation, bywireless, cable, fiber optic, telephone lines, microwave, radiowave, computeror other device network, except (a) as a part of wireless Game play on andamong Nintendo DS systems, (b) for the purpose of facilitating Gamedevelopment under the terms of this Agreement, or (c) as otherwiseapproved in writing by Nintendo. LICENSEE shall use reasonable securitymeasures, customary within the high technology industry, to reduce the risk ofunauthorized interception or retransmission of any Game transmission. No rightof retransmission shall attach to any authorized transmission of a Game,

 

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

 

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

 

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

 

(e)                                  embed,incorporate, or store a Game in any media or format except the Game Card formatutilized by the Nintendo DS system, except as may be necessary as a part of theGame development process under this Agreement,

 

(f)                                    design,implement or undertake any process, procedure, program or act designed tocircumvent the Security Technology,

 

(g)                                 utilize the Intellectual Property Rightsto design or develop any interactive video game program, except as authorizedunder this Agreement,

 

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* Confidential portionomitted and filed separately with the Securities and Exchange Commission.

 

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(h)                                 manufacture or reproduce a Game developedunder this Agreement, except through Nintendo, or

 

(i)                                     Reverse Engineer or assist in the ReverseEngineering of all or any part of the Nintendo DS system, including thehardware or software (whether embedded or otherwise), the Development Tools orthe Security Technology.

 

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3.4                                 NoFree-Riding; No Co-Publishing Arrangements. To protect Nintendo’s valuable Intellectual Property Rights, to preventthe dilution of Nintendo’s trademarks and to preclude free-riding by thirdparties on the goodwill associated with Nintendo’s trademarks, the licensegranted under this Agreement is limited to LICENSEE and may not be delegated orcontracted out for the benefit of a third party, or to a division, affiliate,or subsidiary of LICENSEE.  ThisAgreement, together with all submissions, representations, undertakings andapprovals contemplated of LICENSEE by this Agreement, is and shall remain theright and obligation only of LICENSEE. All Printed Materials and Marketing Materials for a Game shallprominently and accurately identify LICENSEE as NOA’s licensee.  NOA does not permit the designation oridentification of any third party co-publisher for a Game on any LicensedProduct Game Card case or Game Card label, however, LICENSEE may identify athird party as a co-publisher, licensor, developer or other partner of LICENSEEin those Printed Materials (other than the Game Card label), MarketingMaterials or Game credits, as authorized under the Guidelines. For purposes ofclarification, LICENSEE’s name, or logo, will appear on the Licensed ProductGame Card case and Game Card label as it appears in the preamble of thisAgreement.

 

3.5                                 DevelopmentTools.  Nintendo may lease, loan orsell Development Tools to LICENSEE to assist in the development of Games underthis Agreement.  Ownership and use of anyDevelopment Tools provided to LICENSEE by Nintendo shall be subject to theterms of this Agreement and any separate license or purchase agreement requiredby Nintendo.  LICENSEE acknowledges theexclusive interest of Nintendo in and to the Proprietary Rights associated withthe Development Tools.  LICENSEE’s use ofthe Development Tools shall not create any right, title or interest of LICENSEEtherein.  LICENSEE shall not, directly orindirectly, (a) use the Development Tools for any purpose except thedesign and development of Games under this Agreement, (b) reproduce orcreate derivatives of the Development Tools, except in association with thedevelopment of Games under this Agreement, (c) Reverse Engineer theDevelopment Tools, or (d) without NOA’s prior written approval, sell,lease, assign, lend, license, encumber or otherwise transfer the DevelopmentTools.  Any tools developed or derived byLICENSEE as a result of a study of the performance, design or operation of theDevelopment Tools shall be considered derivative works of the IntellectualProperty Rights and shall belong to Nintendo, but may be retained and utilizedby LICENSEE in connection with this Agreement. In no event shall LICENSEE (i) seek, claim or file for any patent,copyright or other Proprietary Right with regard to any such derivative work, (ii) makeavailable any such derivative work to any third party, or (iii) use anysuch derivative work except in connection with the design and development ofGames under this Agreement.

 

**4.****                                      SUBMISSIONOF GAME AND ARTWORK FOR APPROVAL**

 

4.1                                 Developmentand Sale of the Games.  LICENSEE maydevelop, or have developed (subject to Section 4.2 below), Games and havemanufactured, advertise, market and sell Licensed Products for play on theNintendo DS system only in accordance with this Agreement.

 

4.2                                 ThirdParty Developers.  LICENSEE shall notdisclose the Confidential Information (as defined in Section 8 below), theGuidelines or the Intellectual Property Rights to any Independent Contractor,nor permit any Independent Contractor to perform or assist in development workfor a Game, unless and until such Independent Contractor has been approved byNOA and has executed a written confidentiality agreement with NOA relating tothe Nintendo DS system. ****

 

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* Confidential portionomitted and filed separately with the Securities and Exchange Commission.

 

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4.3                                 Deliveryof Completed Game.  Upon completionof a Game, LICENSEE shall deliver a prototype of the Game to NOA in a formatspecified in the Guidelines, together with written user instructions, acomplete description of any security holes, backdoors, time bombs, cheats, “eastereggs” or other hidden features or characters in the Game ****, and a completescreen text script.  NOA shall promptlyevaluate the Game with regard to its technical compatibility with anderror-free operation on the Nintendo DS system. LICENSEE is responsible for ensuring that the Game and any other contentto be included on the Game Card complies with the Advertising Code of Conductof the Entertainment Software Ratings Board (“ESRB”) and that the Game has beenrated EC, E, M or T by the ESRB.  LICENSEEshall provide NOA with a related certificate of rating for the Game from theESRB.

 

4.4                                 Approvalof Completed Game.  NOA shall, withina reasonable period of time after receipt, approve or disapprove each submittedGame ****.  If a Game is disapproved, NOAshall specify in writing the reasons for such disapproval and state whatcorrections or improvements are necessary to ****.  After making the necessary corrections orimprovements, LICENSEE shall submit a revised Game to NOA for approval.  NOA shall not unreasonably withhold or delayits approval of any Game.  The approvalof a Game by NOA shall not relieve LICENSEE of its sole responsibility for thedevelopment, quality and operation of the Game or in any way create anywarranty for a Game or a Licensed Product by NOA.

 

4.5                                 Submissionof Artwork.  Upon submission of acompleted Game to NOA, LICENSEE shall prepare and submit to NOA the Artwork forthe proposed Licensed Product.  Withinseven (7) business days of receipt, NOA shall approve or disapprove theArtwork ****.  If any Artwork isdisapproved, NOA shall specify in writing the reasons for such disapproval andstate what corrections or improvements are necessary ****.  After making the necessary corrections orimprovements, LICENSEE shall submit revised Artwork to NOA for approval.  NOA shall not unreasonably withhold or delayits approval of any Artwork.  Theapproval of the Artwork by NOA shall not relieve LICENSEE of its soleresponsibility for the development and quality of the Artwork or in any waycreate any warranty for the Artwork or any Licensed Product by NOA.

 

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

 

**5.****                                      ORDERPROCESS, PURCHASE PRICE, PAYMENT AND DELIVERY**

 

5.1                                 Submissionof Orders by LICENSEE.  LICENSEE mayat any time submit written purchase orders to NOA for any approved LicensedProduct title.  The purchase order shallspecify whether it is for Finished Products or Bulk Goods.  The terms and conditions of this Agreementshall control over any contrary terms of such purchase order or any other writtendocuments submitted by LICENSEE.  Allorders are subject to acceptance by NOA in Redmond, WA.

 

5.2                                 PurchasePrice and Minimum Order Quantities. The purchase price and minimum order quantities for Finished Productsand Bulk Goods shall be set forth in NOA’s then current written PriceSchedule.  The purchase price includesthe cost of manufacturing together with a royalty for the use of theIntellectual Property Rights.  No taxes, duties,import fees or other tariffs related to the development, manufacture, import,marketing or sale of the Licensed Products are included in the purchase priceand all such taxes are the responsibility of LICENSEE (except for taxes imposedon NOA’s income).  The Price Schedule issubject to change by NOA at any time, provided, however, that any priceincrease shall be applicable only to purchase orders submitted, paid for, andaccepted by NOA after the effective date of the price increase.

 

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* Confidential portionomitted and filed separately with the Securities and Exchange Commission.

 

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5.3                                 Payment.  Upon placement of an order with NOA, LICENSEEshall pay the full purchase price to NOA either (a) by placement of anirrevocable letter of credit in favor of NOA and payable at sight, issued by abank acceptable to NOA and confirmed, if requested by NOA, at LICENSEE’sexpense, or (b)  in cash, by wire transfer to NOA’s designatedaccount.  All associated banking chargesare the responsibility of the LICENSEE.

 

5.4                                 Shipmentand Delivery.  All Licensed Productsshall be delivered to LICENSEE EXW Ex works Japan (as defined by Incoterms2000), or such other delivery point specified by NOA, with shipment at LICENSEE’sdirection and expense.  Orders may bedelivered by NOA in partial shipments, each directed to not more than two (2) destinationsdesignated by LICENSEE within the Territory. Title to the Licensed Products shall vest in accordance with the termsof the applicable letter of credit or, in the absence thereof, at the point ofdelivery.

 

**6.****                                      MANUFACTUREOF THE LICENSED PRODUCT**

 

6.1                                 Manufacturing.  Nintendo shall be the exclusive source forthe manufacture of the Game Cards, and shall control all aspects of themanufacturing process, including the selection of the locations and specificationsfor any manufacturing facilities, determination of materials and processes,appointment of suppliers and subcontractors and management of allwork-in-progress.

 

6.2                                 Manufactureof the Licensed Products.  Uponacceptance by NOA of a purchase order for an approved Licensed Product titleand payment as provided for under Section 5.3 herein, NOA will arrange forthe manufacture of Finished Product or Bulk Goods, as specified in LICENSEE’spurchase order.

 

6.3                                 SecurityFeatures.  The final release versionof the Game, Game Cards and Printed Materials shall include such SecurityTechnology as Nintendo, in its sole discretion and at its sole expense, maydeem necessary or appropriate.

 

6.4                                 Productionof Bulk Goods Printed Materials.  ForBulk Goods, LICENSEE shall arrange and pay for the production of the PrintedMaterials using the Artwork.  Uponreceipt of an order of Bulk Goods, LICENSEE shall assemble the Game Cards andPrinted Materials into the Licensed Products. Games may be sold or otherwise distributed by LICENSEE only in fullyassembled and shrink-wrapped Licensed Products.

 

6.5                                 PriorApproval of LICENSEE’s Independent Contractor.  Prior to the placement of a purchase orderfor Bulk Goods, LICENSEE shall obtain NOA’s approval of any IndependentContractors selected to perform LICENSEE’s production and assemblyoperations.  LICENSEE shall provide NOAwith the names, addresses and all business documentation reasonably requestedby NOA for such Independent Contractors. NOA may, prior to approval and at reasonable intervals thereafter, (a) requiresubmission of additional business or financial information regarding theIndependent Contractors, (b) inspect the facilities of the IndependentContractors ****, and (c) be present to supervise any work on the LicensedProducts to be done by any Independent Contractors.  If at any time NOA **** deems an IndependentContractor to be unable to meet quality, security or performance standardsreasonably established by NOA, NOA may refuse to grant its approval or withdrawits approval upon Notice to LICENSEE. LICENSEE may not proceed with the production of the Printed Materials orassembly of the Licensed Product by such Independent Contractor until NOA’sconcerns have been resolved to its satisfaction or until LICENSEE has selectedand received NOA’s approval of another Independent Contractor. NOA mayestablish preferred or required supply sources for the Game Card case, orselect components of the Printed Materials, which sources shall be deemedpre-approved in accordance with this Section 6.5.  LICENSEE shall comply with all **** sourcingrequirements established by NOA.

 

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* Confidential portionomitted and filed separately with the Securities and Exchange Commission.

 

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

 

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

 

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

 

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

 

**7.****                                      MARKETINGAND ADVERTISING**

 

7.1                                 Approvalof Marketing Materials.  LICENSEErepresents and warrants that the Marketing Materials shall (a) be of highquality and comply with the Guidelines, (b) comply with all ESRBadvertising, marketing and merchandising guidelines ****, and (c) complywith all applicable laws and regulations in those jurisdictions in theTerritory where they will be used or distributed.  All LICENSEE controlled websites featuringthe Games shall adopt a privacy policy that is consistent with the principlesand guidelines issued by the ESRB and that complies with the Children’s OnlinePrivacy Protection Act.  Prior to actualuse or distribution, LICENSEE shall submit to NOA for review samples of allproposed Marketing Materials.  NOA shall,within ten (10) business days of receipt, approve or disapprove thequality of such samples.  If any of thesamples are disapproved, NOA shall specify the reasons for such disapproval ****and state what corrections and/or improvements are necessary ****.  After making the necessary corrections and/orimprovements, LICENSEE shall submit revised samples for approval by NOA.  No Marketing Materials shall be used ordistributed by LICENSEE without NOA’s prior written approval.  NOA shall not unreasonably withhold or delayits approval of any proposed Marketing Materials.

 

7.2                                 NoBundling.  To protect Nintendo’svaluable Intellectual Property Rights, to prevent the dilution of Nintendo’strademarks and to preclude free-riding by non-licensed products on the goodwillassociated with Nintendo’s trademarks, LICENSEE shall not market or distributeany Licensed Products that are bundled with (a) any peripheral designedfor use with the Nintendo DS system that has not been licensed or approved inwriting by NOA, or (b) any other product or service where Nintendo’ssponsorship, association, approval or endorsement might be suggested by thebundling of the products or services, ****.

 

7.3                                 Warrantyand Repair.  LICENSEE shall providethe original consumer with a minimum ninety (90) day limited warranty on allLicensed Products.  LICENSEE shall alsoprovide reasonable product service, including out-of-warranty service, for allLicensed Products; provided that the exact nature of such warranties andservices shall be determined by LICENSEE in its discretion.

 

7.4                                 BusinessFacilities.  LICENSEE agrees todevelop and maintain (a) suitable office facilities within the UnitedStates, adequately staffed to enable LICENSEE to fulfill all responsibilitiesunder this Agreement, (b) **** necessary warehouse, distribution,marketing, sales, collection and credit operations to facilitate properhandling of the Licensed Products, and (c) customer service and Gamecounseling, including telephone service, to adequately support the LicensedProducts.

 

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7.5                                 NoSales Outside the Territory. LICENSEE represents and warrants that it shall not **** market, sell,offer to sell, import or distribute the Licensed Products outside theTerritory, or within the Territory when LICENSEE has actual or constructiveknowledge that a subsequent destination of the Licensed Product is outside theTerritory.

 

7.6                                 Defectsand Recall.  In the event of amaterial programming defect in a Licensed Product that would, in NOA’sreasonable judgment, significantly impair the ability of a consumer to play theGame, NOA may, after consultation with LICENSEE, require the LICENSEE to recallthe Licensed Product and undertake suitable repairs or replacements.

 

7.7                                 NOAPromotional Materials, Publications and Events.  At its option, NOA may (a) insert in thePrinted Materials for the Licensed Products promotional materials concerning NintendoPower magazine or other NOA products, services or programs, ****, (b) utilize**** screen shots, Artwork and information regarding the Licensed Products in NintendoPower, Nintendo Power Source, official Nintendo-sponsored web sites,or other advertising, promotional or marketing media that promotes Nintendoproducts, services or programs, and (c) exercise public performance rightsin the Games and use related trademarks and Artwork in connection with NOAsponsored contests, tours, conventions, trade shows, press briefings andsimilar events that promote the Nintendo DS system, ****.

 

7.8                                 NintendoGateway System.  To promote andincrease demand for games on Nintendo video game systems, NOA licenses a system(the “Nintendo Gateway System”) in various non-coin activated commercialsettings such as commercial airlines, cruise ships, rail systems and hotels,where customers play games on specially adapted Nintendo video gamesystems.  If NOA identifies a Game forpossible license on the Nintendo Gateway System, the parties agree to conductgood faith negotiations toward including the Game in the Nintendo GatewaySystem.

 

**8.****                                      CONFIDENTIALINFORMATION**

 

8.1                                 Definition.  “Confidential Information” means informationprovided to LICENSEE by Nintendo or any third party working with Nintendorelating to the hardware and software for the Nintendo DS system or theDevelopment Tools, including, but not limited to, (a) all current orfuture information, know-how, techniques, methods, information, tools, emulatorhardware or software, software development specifications and/or trade secrets,(b) any patents or patent applications, (c) any business, marketingor sales data or information, and (d) any other information or datarelating to development, design, operation, manufacturing, marketing orsales.  Confidential Information shallinclude all confidential information disclosed, whether in writing, orally, visually,or in the form of drawings, technical specifications, software, samples,pictures, models, recordings, or other tangible items which contain ormanifest, in any form, the above listed information.  Confidential Information shall not include (i) dataand information that was in the public domain prior to LICENSEE’s receipt ofthe same hereunder, or that subsequently becomes part of the public domain bypublication or otherwise, except by LICENSEE’s wrongful act or omission, (ii) dataand information that LICENSEE can demonstrate, through written records kept inthe ordinary course of business, was in its possession without restriction onuse or disclosure, prior to its receipt of the same hereunder and was notacquired directly or indirectly from Nintendo under an obligation ofconfidentiality that is still in force, and (iii) data and informationthat LICENSEE can show was received by it from a third party who did notacquire the same directly or indirectly from Nintendo and to whom LICENSEE hasno obligation of confidentiality.

 

8.2                                 DisclosuresRequired by Law.  LICENSEE shall bepermitted to disclose Confidential Information if such disclosure is requiredby an authorized governmental or judicial entity, provided that NOA is givenNotice thereof at least **** business days prior to such disclosure, or suchlesser period if required.  LICENSEEshall use its best **** efforts to limit the disclosure to the greatest extentpossible, consistent with LICENSEE’s legal obligations, and if required by NOA,shall cooperate in the preparation and entry of appropriate protective orders.

 

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8.3                                 Disclosureand Use.  NOA may provide LICENSEEwith highly confidential development information, Guidelines, DevelopmentTools, systems, specifications and related resources and informationconstituting and incorporating the Confidential Information to assist LICENSEEin the development of Games.  LICENSEEagrees to maintain all Confidential Information as strictly confidential and touse such Confidential Information only in accordance with this Agreement.  LICENSEE shall limit access to theConfidential Information to LICENSEE’s employees having a strict need to knowand shall advise such employees of their obligation of confidentiality asprovided herein.  LICENSEE shall requireeach such employee to retain in confidence the Confidential Informationpursuant to a written non-disclosure agreement between LICENSEE and suchemployee.  LICENSEE shall use its bestcommercial efforts to ensure that its employees working with or otherwisehaving access to Confidential Information shall not disclose or make anyunauthorized use of the Confidential Information.

 

8.4                                 NoDisclosure to Independent Contractors. LICENSEE shall not disclose the Confidential Information to anyIndependent Contractor without the prior written consent of NOA.  Any Independent Contractor seeking access to ConfidentialInformation shall be required to enter into a written non-disclosure agreementwith NOA prior to receiving any access to or disclosure of the ConfidentialInformation from either LICENSEE or NOA.

 

8.5                                 AgreementConfidentiality.  LICENSEE agreesthat the terms, conditions and contents of this Agreement shall be treated asConfidential Information.  Any publicannouncement or press release regarding this Agreement or the release dates forGames developed by LICENSEE under this Agreement shall be subject to NOA’sprior written approval, ****.  Theparties may disclose this Agreement (a) to accountants, banks, financingsources, lawyers, parent companies and related parties under substantiallyequivalent confidentiality obligations, (b) in connection with any formallegal proceeding for the enforcement of this Agreement, (c) as required bythe regulations of the Securities and Exchange Commission (“SEC”), providedthat all Confidential Information regarding NOA shall be redacted from suchdisclosures to the maximum extent allowed by the SEC, (d) in response tolawful process, subject to a written protective order approved in advance byNOA, **** and (e) to a third party proposing to enter into a businesstransaction with LICENSEE or with NOA, but only to the extent reasonablynecessary for carrying out the proposed transaction and only under terms ofmutual confidentiality.

 

8.6                                 NotificationObligations.  LICENSEE shall promptlynotify NOA of the unauthorized use or disclosure of any ConfidentialInformation by LICENSEE or any of its employees, or **** any IndependentContractor or its employees ****, and shall promptly act to recover any suchinformation and prevent further breach of the obligations herein.  The obligations of LICENSEE set forth hereinare in addition to and not in lieu of any other legal remedy that may beavailable to NOA under this Agreement or applicable law.

 

8.7                                 ContinuingEffect of the NDA.  The terms of thisSection 8 supplement the terms of the NDA, which shall remain ineffect.  In the event of a conflictbetween the terms of the NDA and this Agreement, the terms of this Agreementshall control.

 

**9.****                                      REPRESENTATIONSAND WARRANTIES**

 

9.1                                 LICENSEE’sRepresentations and Warranties. LICENSEE represents and warrants that:

 

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

 

(b) theexecution, delivery and performance of this Agreement by LICENSEE does notconflict with any agreement or understanding to which LICENSEE may be bound,and

 

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(c) excludingthe Intellectual Property Rights, LICENSEE is either (i) the sole owner ofall right, title and interest in and to the trademarks, copyrights and otherintellectual property rights used on or in association with the development,advertising, marketing and sale of the Licensed Products and the Marketing Materials,or (ii) the holder of such rights to the trademarks, copyrights and otherintellectual property rights that have been licensed from a third party as arenecessary for the development, advertising, marketing and sale of the LicensedProducts and the Marketing Materials under this Agreement.

 

9.2                                 NOA’sRepresentations and Warranties.  NOArepresents and warrants that:

 

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

 

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

 

9.3                                 INTELLECTUALPROPERTY RIGHTS DISCLAIMER BY NOA.  NOAMAKES NO REPRESENTATION OR WARRANTY CONCERNING THE SCOPE OR VALIDITY OF THEINTELLECTUAL PROPERTY RIGHTS.  NOA DOESNOT WARRANT THAT THE DESIGN, DEVELOPMENT, ADVERTISING, MARKETING OR SALE OF THELICENSED PRODUCTS OR THE USE OF THE INTELLECTUAL PROPERTY RIGHTS BY LICENSEEWILL NOT INFRINGE UPON PATENT, COPYRIGHT, TRADEMARK OR OTHER PROPRIETARY RIGHTSOF A THIRD PARTY.  ANY WARRANTY THAT MAY BEPROVIDED IN ANY APPLICABLE PROVISION OF THE UNIFORM COMMERCIAL CODE OR ANYOTHER COMPARABLE LAW OR STATUTE IS EXPRESSLY DISCLAIMED.

 

9.4                                 GENERALDISCLAIMER BY NOA.  NOA DISCLAIMS ANYAND ALL WARRANTIES WITH RESPECT TO THE LICENSED PRODUCTS, INCLUDING, WITHOUTLIMITATION, THE SECURITY TECHNOLOGY. LICENSEE PURCHASES AND ACCEPTS ALL LICENSED PRODUCTS ON AN “AS IS” AND “WHEREIS” BASIS.  NOA DISCLAIMS ALL WARRANTIESUNDER THE APPLICABLE LAWS OF ANY COUNTRY, EXPRESS OR IMPLIED, INCLUDING IMPLIEDWARRANTIES OF MERCHANTABILITY OR FITNESS FOR A GENERAL OR PARTICULAR PURPOSE.

 

9.5                                 LIMITATIONOF LIABILITY.  TO THE MAXIMUM EXTENTPERMITTED BY LAW, NEITHER **** (NOR THEIR RESPECTIVE AFFILIATES, LICENSORS ORSUPPLIERS) SHALL BE LIABLE FOR LOSS OF PROFITS, OR FOR ANY SPECIAL, PUNITIVE,INCIDENTAL OR CONSEQUENTIAL DAMAGES OF THE **** OR ITS CUSTOMERS ARISING OUT OFOR RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE BREACH OF THISAGREEMENT BY NOA ****, THE MANUFACTURE OF THE LICENSED PRODUCTS OR THE USE OFTHE LICENSED PRODUCTS ON ANY NINTENDO VIDEO GAME SYSTEM BY **** OR ANY ENDUSER.

 

**10.****                               INDEMNIFICATION**

 

10.1                           LICENSEE’sIndemnification.  LICENSEE shallindemnify and hold harmless NOA and Nintendo Co., Ltd. (and any of theirrespective affiliates, subsidiaries, licensors, suppliers, officers, directors,employees or agents) from any claims, losses, liabilities, damages, expensesand costs, including, without limitation, reasonable attorneys’ fees and ****costs and any **** expenses incurred in the settlement or avoidance of any suchclaim, that result from or are in connection with:

 

(a) a**** breach of any of the provisions, representations or warranties undertakenby LICENSEE in this Agreement,

 

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(b) anyinfringement of a third party’s Proprietary Rights as a result of LICENSEE’sdesign, development, advertising, marketing, sale or use of the LicensedProducts or the Marketing Materials,

 

(c) anyclaims alleging a defect, failure to warn, bodily injury (including death) orother personal or property damage arising out of, or in connection with,LICENSEE’s design, development, advertising, marketing, sale or use of any ofthe Licensed Products, and

 

(d) anyfederal, state or foreign civil or criminal actions relating to LICENSEE’sdesign, development, advertising, marketing, sale or use of the LicensedProducts or the Marketing Materials.

 

NOA and LICENSEE shallgive prompt Notice to the other of any indemnified claim under this Section 10.1.  With respect to any third party claim subjectto this indemnity clause, LICENSEE, as indemnitor, shall have the right toselect counsel and to control the defense and/or settlement thereof.  NOA may, at its own expense, participate insuch action or proceeding with counsel of its own choice.  LICENSEE shall not enter into any settlementof any such claim in which (i) NOA or Nintendo Co., Ltd. has been named asa party, or (ii) claims relating to the Intellectual Property Rights havebeen asserted, without NOA’s prior written consent, ****.  NOA shall provide reasonable assistance toLICENSEE in its defense of any such claim.

 

10.2                           LICENSEE’sInsurance.  LICENSEE shall, at itsown expense, obtain a commercial general liability insurance policy (includingcoverage for advertising injury and product liability claims) from an insurancecompany rated at least B+ by A.M. Best. Such policy of insurance shall be in an amount of not less than **** ona per occurrence basis (not claims made) **** and shall provide for adequateprotection against any suits, claims, loss or damage arising out of or relatingto the Licensed Products.  Such policyshall name NOA and Nintendo Co., Ltd. as additional insureds and shall specifythat it may not be canceled without thirty (30) days’ prior written Notice toNOA.  A Certificate of Insurance shall beprovided to NOA’s Licensing Department not later than the date of the initialorder of Licensed Products under this Agreement.  If LICENSEE fails to maintain such insuranceat any time during the Term and for a period of two (2) years thereafter, ****,NOA, in its sole discretion may 1) terminate this Agreement in accordance with Section 13.2herein; or 2) secure comparable insurance for the benefit of NOA and NintendoCo., Ltd. only, and not for LICENSEE, at LICENSEE’s expense.

 

10.3                           Suspensionof Production.  In the event NOA ****deems itself at risk with respect to any claim, action or proceeding under thisSection 10, NOA may, at its sole option, suspend production, delivery ororder acceptance for any Licensed Products, in whole or in part, pendingresolution of such claim, action or proceeding.

 

**11.****                               PROTECTIONOF PROPRIETARY RIGHTS**

 

11.1                           JointActions Against Infringers.  LICENSEEand NOA may agree to jointly pursue cases of infringement involving theLicensed Products, as such Licensed Products will contain Proprietary Rightsowned by each of them.  Unless theparties otherwise agree, or unless the recovery is expressly allocated betweenthem by the court, in the event of such an action, any recovery shall be usedfirst to reimburse LICENSEE and NOA for their respective reasonable attorneys’fees and costs incurred in bringing such action, pro**rata,and any remaining recovery shall be distributed to LICENSEE and NOA, pro rata,based upon the fees and costs incurred in bringing such action.

 

11.2                           Actionsby LICENSEE.  LICENSEE, without theconsent of NOA, may bring any action or proceeding relating to an infringementor potential infringement of LICENSEE’s Proprietary Rights in the LicensedProducts.  LICENSEE will have the rightto retain all proceeds it may derive from any recovery in connection with suchactions.

 

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11.3                           Actionsby NOA.  NOA, without the consent ofLICENSEE, may bring any action or proceeding relating to an infringement orpotential infringement of the Intellectual Property Rights.  NOA will have the right to retain allproceeds it may derive from any recovery in connection with such actions.

 

**12.****                               ASSIGNMENT**

 

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

 

12.2                           NoAssignment by LICENSEE.  ThisAgreement and the subject matter hereof are personal to LICENSEE.  NoAssignment of LICENSEE’s rights or obligations hereunder shall be valid oreffective without NOA’s prior written consent, ****.  In the event of an attempted Assignment inviolation of this provision, NOA shall have the right at any time, at its soleoption, to immediately terminate this Agreement.  Upon such termination, NOA shall have nofurther obligation under this Agreement to LICENSEE or to LICENSEE’s intendedor purported assignee.

 

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

 

12.4                           LICENSEE’sObligation of Non-Disclosure. LICENSEE shall not (a) disclose Nintendo’s Confidential Informationto any proposed assignee of LICENSEE, or (b) permit access to Nintendo’sConfidential Information by any proposed assignee or other third party, withoutthe prior written consent of NOA to such disclosure.

 

**13.****                               TERMAND TERMINATION**

 

13.1                           Term.  This Agreement shall commence on theEffective Date and shall continue for the Term, unless earlier terminated asprovided for herein, or extended by a written amendment to this Agreement.

 

13.2                           Defaultor Breach.  In the event that eitherparty is in default or commits a breach of this Agreement, that is not curedwithin thirty (30) days after Notice thereof, then this Agreement shall, exceptas otherwise provided, automatically terminate on the date specified in suchNotice.

 

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

 

13.4                           TerminationOther Than by Breach.  Upon (a) theexpiration of this Agreement, (b) its termination other than by LICENSEE’sbreach, or (c) termination of this Agreement by NOA after one hundredtwenty days (120) Notice to LICENSEE in the event that LICENSEE has developed,marketed, or sold a product that infringes any intellectual property rights ofNOA or its parent company, Nintendo Co., Ltd., anywhere in the world (providedthat if the parties are able to resolve such alleged infringement within such120 day period, such termination shall not take effect), LICENSEE shall have aperiod of one hundred eighty (180) days to sell any unsold Licensed Products ininventory or in process.  All LicensedProducts in LICENSEE’s control following the expiration of such sell-off periodshall be destroyed by LICENSEE within ten (10) days and proof of suchdestruction (certified by an officer of LICENSEE) shall be provided to NOA.

 

13.5                           Terminationby LICENSEE’s Breach.  If thisAgreement is terminated by NOA as a result of a breach of its terms andconditions by LICENSEE, LICENSEE shall immediately cease all distribution,advertising, marketing or sale of any Licensed Products.  All Licensed Products in LICENSEE’s controlas of the date of such termination shall be destroyed by LICENSEE within ten (10) daysand proof of such destruction (certified by an officer of LICENSEE) shall beprovided to NOA.

 

13.6                           Breachof NDA or Other NOA License Agreements. At NOA’s option, any material breach by LICENSEE of (a) the NDA, or(b) any other license agreement between NOA and LICENSEE relating to the developmentof games for any Nintendo video game system that is not cured within the timeperiod for cure allowed under the applicable agreement, shall be considered amaterial breach of this Agreement entitling NOA to terminate this Agreement inaccordance with Section 13.5 herein.

 

13.7                           NoFurther Use of the Intellectual Property Rights.  Upon expiration and/or termination of thisAgreement, LICENSEE shall cease all use of the Intellectual Property Rights forany purpose, except as may be required in connection with the sale of LicensedProducts authorized under Section 13.4 herein.  LICENSEE shall, within thirty (30) daysthereafter, return or destroy all Guidelines, writings, drawings, models, data,tools and other materials and things in LICENSEE’s possession or in thepossession of any past or present employee, agent or contractor receiving theinformation through LICENSEE, that constitute or relate to or disclose anyConfidential Information, without making copies or otherwise retaining any suchinformation.  Proof of any destructionshall be certified by an officer of LICENSEE and promptly provided to NOA.

 

13.8                           Terminationby NOA’s Breach.  If this Agreementis terminated by LICENSEE as a result of a breach of its terms or conditions byNOA, LICENSEE may, at its sole option, continue to sell the Licensed Productsin the Territory until the expiration of the Term, at which time the provisionsof Section 13.4 shall apply.

 

**14.****                               GENERALPROVISIONS**

 

14.1                           ExportControl.  LICENSEE agrees to complywith the export laws and regulations of the United States and any other countrywith jurisdiction over the Licensed Products, Confidential Information,Intellectual Property Rights, or Development Tools of either party.

 

14.2                           ForceMajeure.  Neither party shall be liablefor any breach of this Agreement occasioned by any cause beyond the reasonablecontrol of such party, including governmental action, war, riot or civilcommotion, fire, natural disaster, labor disputes, restraints affectingshipping or credit, delay of carriers, inadequate supply of suitable materialsor any other cause that could not with reasonable diligence be controlled orprevented by the parties.  In the eventof material shortages, including shortages of materials  or  production facilities  necessary  for production  of the Licensed Products, NOA reserves the

 

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right to allocate suchresources among itself and its licensees, ****.

 

14.3                           Recordsand Audit.  During the Term and for aperiod of two (2) years thereafter, LICENSEE agrees to keep accurate,complete and detailed records related to the development and sale of theLicensed Products and the Marketing Materials. Upon ****, NOA may, at its expense, audit LICENSEE’s records, reportsand other information solely related to LICENSEE’s compliance with thisAgreement.

 

14.4                           Waiver,Severability, Integration, and Amendment. The failure of a party to enforce any provision of this Agreement shallnot be construed to be a waiver of such provision or of the right of such partyto thereafter enforce such provision.  Inthe event that any term, clause or provision of this Agreement shall beconstrued to be or adjudged invalid, void or unenforceable, such term, clauseor provision shall be construed as severed from this Agreement, and theremaining terms, clauses and provisions shall remain in effect.  Together with the NDA, this Agreementconstitutes the entire agreement between the parties relating to the subjectmatter hereof.  All prior negotiations,representations, agreements and understandings are merged into, extinguished byand completely expressed by this Agreement and the NDA.  Any amendment to this Agreement shall be inwriting, signed by both parties.

 

14.5                           Survival.  In addition to those rights specified elsewhere in this Agreement thatmay reasonably be interpreted or construed as surviving, the rights andobligations set forth in Sections 3, 8, 9, 10, 13 and 14 shall survive anyexpiration or termination of this Agreement to the degree necessary to permittheir complete fulfilment or discharge.

 

14.6                           GoverningLaw and Venue.  This Agreement shallbe governed by the laws of the State of Washington, without regard to itsconflict of laws principles.  Any legalaction (including judicial and administrative proceedings) with respect to anymatter arising under or growing out of this Agreement, shall be brought in acourt of competent jurisdiction in King County, Washington.  Each party hereby consents to thejurisdiction and venue of such courts for such purposes.

 

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

 

14.8                           Attorneys’Fees.  In the event it is necessaryfor either party to this Agreement to undertake legal action to enforce ordefend any action arising out of or relating to this Agreement, the prevailingparty in such action shall be entitled to recover from the other party allreasonable attorneys’ fees, costs and expenses relating to such legal action orany appeal therefrom.

 

14.9                           Counterpartsand Signature by Facsimile.  ThisAgreement may be signed in counterparts, that shall together constitute acomplete Agreement.  A signaturetransmitted by facsimile shall be considered an original for purposes of thisAgreement.

 

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

 
| **NOA:**                      | **LICENSEE:**                 |
|-------------------------------|-------------------------------|
| **NINTENDO  OF AMERICA INC.** | **THQ  INC.**                 |
|                          |                          |
| By:                           |                          |   | By: |   |   |
| Name:                         | James R.  Cannataro           |   | Name: |   |   |
| Title:                        | Executive VP,  Administration |   | Title: |   |   |
| Date:                         |                          |   | Date: |   |   |
|                               |                               |  |  |  |  |  |  |  |  |

 

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