exv10w43






Exhibit 10.43




CONFIDENTIAL




April 4, 2005




“[ * ]” denotes confidential information omitted and filed separately with the Securities and Exchange Commission

pursuant to a request for confidential treatment under Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




LICENSE AGREEMENT FOR THE NINTENDO DS SYSTEM

(EEA, AUSTRALIA AND NEW ZEALAND)



THIS LICENSE AGREEMENT (“Agreement”) is entered into between NINTENDO CO., LTD. (“NINTENDO”) at
11-1 Kamitoba Hokotate-cho, Minami-ku, Kyoto, Japan 601-8501, Attn: General Manager, International
Business Administration Department (Fax: 81.75.662.9619), and MIDWAY GAMES LTD. (“LICENSEE”) at 43
Worship Street, London EC2A 2DX, U.K.; Attn: Mr. Martin Spiess, Managing Director (Fax: (44)
20.7938.3466). LICENSEE’s address for notice is: Midway Games Inc., 3401 North California Avenue,
Chicago, Illinois 60618, USA, Attn: Vice President & General Counsel (facsimile: 1-312-961-1020).
NINTENDO and LICENSEE agree as follows:




1. RECITALS




     1.1 NINTENDO designs, develops, manufactures, markets and sells advanced design, high-quality
video game systems, including the Nintendo DS system.



     1.2 LICENSEE desires a license to use highly proprietary programming specifications,
development tools, trademarks and other valuable intellectual property rights of NINTENDO to
develop, have manufactured, advertise, market and sell video game software for play on the Nintendo
DS system.



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



2. DEFINITIONS




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



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



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



     2.4 “Effective Date” means the last date on which all parties shall have signed this
Agreement.



     2.5 “Finished Product(s)” means the fully assembled Game Card with a Game Card label and
packaged in a plastic case or other form of protective packaging, together with Printed Materials.



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



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



     2.8 “Guidelines” means the current version or any future revision of the “Nintendo DS
Guidelines”, pertaining to layout, trademark usage and other requirements for the Game Card label,
instruction manual and Game Card packaging; “Marketing Materials”; “Nintendo DS Development
Manual”; “Guidelines on Ethical Content”; “Nintendo DS Software Submission Requirements” together



 









 







with related guidelines that NINTENDO may provide to LICENSEE from time to time. The Guidelines on
Ethical Content are attached as Annex A, and the remainder of the Guidelines have been provided to
LICENSEE independent of this Agreement. The Guidelines may be changed or updated from time to time
without notice, and the versions current from time to time will be available on request from
NINTENDO.



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



     2.10 “Intellectual Property Rights” means individually, collectively or in any combination,
Proprietary Rights owned, licensed or otherwise held by NINTENDO that are associated with the
development, manufacturing, advertising, marketing or sale of the Licensed Products, including,
without limitation, (a) registered and unregistered trademarks and trademark applications used in
connection with Games for the Nintendo DS system including “NintendoTM”, “Nintendo DSTM”, and the
“Official Nintendo Seal of QualityTM”, (b) select trade dress associated with the Nintendo DS system
and licensed Games for play thereon, (c) Proprietary Rights in the Security Technology incorporated
into the Game Cards, (d) rights in the Development Tools for use in developing the Games, (e)
patents, patent applications, utility models or design registrations associated with the Game
Cards, (f) copyrights in the Guidelines, and (g) other Proprietary Rights of NINTENDO in the
Confidential Information.



     2.11 “Licensed Products” means (a) Finished Products, or (b) Bulk Goods when fully assembled
and packaged in a plastic case or other form of protective packaging with the Printed Materials.



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



     2.13 “NDA” means the non-disclosure agreement providing for the protection of Confidential
Information related to the Nintendo DS system previously entered into between NINTENDO and/or
Nintendo of America Inc., NINTENDO’s subsidiary of Redmond, Washington, USA (“NOA”) and LICENSEE.



     2.14 “Notice” means any notice permitted or required under this Agreement. All Notices shall
be sufficiently given when (a) personally served or delivered, (b) transmitted by facsimile, with
an original sent concurrently by mail, or (c) deposited, postage prepaid, with a guaranteed air
courier service, in each case addressed as stated herein, or addressed to such other person or
address either party may designate in a Notice. Notice shall be deemed effective upon the earlier
of actual receipt or [       *      ] after transmittal.



     2.15 “Price Schedule” means the current version or any future revision of NINTENDO’s schedule
of purchase prices and minimum order quantities for Finished Products and Bulk Goods. The Price
Schedule has been provided to LICENSEE independent of this Agreement and may be changed or updated
from time to time without notice, and the version current from time to time will be available on
request from NINTENDO.



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



     2.17 “Proprietary Rights” means any rights or applications for rights to the extent recognized
anywhere in the Territory relating to the Nintendo DS System, and owned, licensed or otherwise held
in patents, trademarks, service marks, copyrights and neighboring rights,





 




			
	*	 	Information has been omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934, as amended.





PAGE 2 OF 16









 




semiconductor chip layouts or masks, trade secrets, utility models, registered design rights,
unregistered design rights, database rights, get up, trade dress, moral rights and publicity
rights, together with all inventions, discoveries, ideas, know-how, data, information, processes,
methods, procedures, formulas, drawings and designs, computer programs, software source code and
object code, and all amendments, modifications, and improvements thereto for which such patent,
trademark, service mark, copyright and neighboring rights, semiconductor chip layouts or mask,
trade secrets, utility models, registered design rights, unregistered design rights, database
rights, get up, trade dress, moral rights or publicity rights may exist or may be sought and
obtained in the future.




     2.18 “NOA” means NCL’s subsidiary, Nintendo of America Inc. of Redmond, Washington, USA.



     2.19 “Reverse Engineer(ing)” means, without limitation, [   *  ]



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



     2.21 “Sole License” shall mean a license under which only the licensor and a single licensee
can utilize the subject matter of the license.



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



     2.23 “Territory” means any and all countries within the European Economic Area; namely
Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany,
Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the
Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and the United
Kingdom. The Territory shall also include Australia, New Zealand, Switzerland and Turkey.
NINTENDO may add additional countries to the Territory upon written notice to LICENSEE.



     2.24 “TM” means trade mark of NINTENDO, whether registered or not.



3. GRANT OF LICENSE; LICENSEE RESTRICTIONS




     3.1 Limited License Grant. For the Term and for the Territory, NINTENDO grants to
LICENSEE a nonexclusive, nontransferable, limited license to use the Intellectual Property Rights
for the purpose of and to the extent necessary, to develop Games for manufacture, advertising,
marketing and sale as Licensed Products, subject to the terms and conditions of this Agreement. [ 
*   ]



     3.2 LICENSEE Acknowledgement. LICENSEE’s use of the Intellectual Property Rights
shall not create any right, title or interest of LICENSEE therein. In the event that LICENSEE
challenges NINTENDO’s ownership or the validity of the Intellectual Property Rights, NINTENDO may
terminate this Agreement without any notice or procedure.



     3.3 Restrictions on License Grant. NINTENDO does not guarantee that the hardware for
the Nintendo DS system is distributed throughout the Territory. Moreover, the present limited
license to LICENSEE does not extend to the use of the Intellectual Property Rights for the
following purposes:



          (a) grant access to, distribute, transmit or broadcast a Game by electronic means or by any
other means known or hereafter devised, including, without limitation, by wireless,






 




			
	*	 	Information has been omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934, as amended.




PAGE 3 OF 16









 









cable, fiber optic, telephone lines, microwave, radiowave, computer or other device network, except
(a) as a part of wireless game play on and among Nintendo DS systems, (b) for the purpose of
facilitating game development under the terms of this Agreement, or (c) as otherwise approved in
writing by NINTENDO. LICENSEE shall use reasonable security measures, customary within the high
technology industry, to reduce the risk of unauthorized interception or retransmission of any Game
transmission. No right of retransmission shall attach to any authorized transmission of a Game,




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




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




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




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




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




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




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




          (i) Reverse Engineer or assist in the Reverse Engineering of all or any part of the Nintendo
DS system, including the hardware or software (whether embedded or otherwise), the Development
Tools or the Security Technology, except as specifically permitted under the laws and regulations
applicable in the Territory.




     3.4 Development Tools. NINTENDO may lease, loan or sell Development Tools, including
any improvements made by NINTENDO or NOA from time to time, to LICENSEE to assist in the
development of Games under this Agreement on such terms as may be agreed between the parties.
Ownership and use of any Development Tools, whether provided by NINTENDO or NOA, prior to or during
the Term hereof, shall be subject to the terms of this Agreement and any separate license or
purchase agreement required by NINTENDO. LICENSEE acknowledges the exclusive interest of NINTENDO
in and to the Proprietary Rights associated with the Development Tools. LICENSEE’s use of the
Development Tools shall not create any right, title or interest of LICENSEE therein. Any license
to LICENSEE to use the Development Tools does not extend to: (a) use of the Development Tools for
any purpose except the design and development of Games under this Agreement, (b) reproduction or
creation of derivatives of the Development Tools, except in association with the development of
Games under this Agreement, (c) Reverse Engineering of the Development Tools (except as
specifically permitted under the laws and/or regulations applicable in the Territory), or (d)
selling, leasing, assigning, lending, licensing, encumbering or otherwise transferring the
Development Tools. Any tools developed or derived by LICENSEE as a result of a study of the
performance, design or operation of the Development Tools shall be considered derivative works of
the Intellectual Property Rights, but may be retained and utilized by LICENSEE in connection with
this Agreement. Unless LICENSEE can demonstrate that such derivative work has one or more
applications that are independent of and separate from the Intellectual Property Rights
(“Independent Applications”), it shall be deemed to have granted NOA and NINTENDO an indefinite,
worldwide, royalty-free, transferable and Sole License (including the right to sub-license) to such



PAGE 4 OF 16









 







derivative work. To the extent that LICENSEE can demonstrate one or more Independent Applications,
LICENSEE shall be deemed to have granted to NOA and NINTENDO a royalty-free and transferable
non-exclusive License (including the right to sub-license) in relation to such Independent
Applications for the Term.



4. SUBMISSION OF GAME AND ARTWORK FOR APPROVAL




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



     4.2 Delivery of Completed Game. Upon completion of a Game, LICENSEE shall deliver a
prototype of the Game to NINTENDO in a format specified in the Guidelines, together with written
user instructions, a complete description of any security holes, backdoors, time bombs, cheats,
“Easter eggs” or other hidden features or characters in the Game and a complete screen text script.
NINTENDO shall promptly evaluate the Game with regard to its technical compatibility with and
error-free operation on the Nintendo DS system. LICENSEE must establish that the Game and any
other content included on the Game Card complies with the guidelines of the Pan European Game
Information System (PEGI), the Unterhaltungssoftware Selbstkontrolle (USK), the Office of Film and
Literature Classification (OFLC), or any other national or regional game rating system that
NINTENDO may accept, as applicable. LICENSEE shall be responsible for the submission of the Game
to the appropriate national or regional game rating organization and shall provide NINTENDO with a
statement or certificate in writing from the relevant organization, confirming the rating for the
Game. Where any such game has been rated as being suitable only for players aged 18 and over (or
an equivalent rating), LICENSEE must submit a certificate in writing that confirms the game is
rated as no higher than “M” (mature) by the Entertainment Software Rating Board (ESRB) of the U.S.
In addition, NINTENDO reserves the right to require LICENSEE to provide NINTENDO with such
additional written indemnification for damages, claims, loss, liability, fine or penalty resulting
from the marketing, distribution or sale of a Game with such an age rating, as NINTENDO, in its
sole discretion, may request. If any such age rating is subsequently changed by the relevant
organization, LICENSEE shall inform NINTENDO forthwith in writing of that fact and LICENSEE shall
then comply with the above provisions in relation to such new age rating.



     4.3 Approval of Completed Game. NINTENDO shall, within a reasonable period of time
after receipt, approve or disapprove each submitted Game. If a Game is disapproved, NINTENDO shall
specify in writing the reasons for such disapproval and state what corrections or improvements are
necessary. After making the necessary corrections or improvements, LICENSEE shall submit a revised
Game to NINTENDO for approval. NINTENDO shall not unreasonably withhold or delay its approval of
any Game. The approval of a Game by NINTENDO shall not relieve LICENSEE of its sole responsibility
for the development, quality and operation of the Game or in any way create any warranty for a Game
or a Licensed Product by NINTENDO.



     4.4 Submission of Artwork. Upon submission of a completed Game to NINTENDO, LICENSEE
shall prepare and submit to NINTENDO the Artwork for the proposed Licensed Product. Within [       *     
] of receipt, NINTENDO shall approve or disapprove the Artwork. If any Artwork is disapproved,
NINTENDO shall specify in writing the reasons for such disapproval and state what corrections or
improvements are necessary. After making the necessary corrections or improvements, LICENSEE shall
submit revised Artwork to NINTENDO for approval. NINTENDO shall not unreasonably withhold or delay
its approval of any Artwork. The approval of the Artwork by NINTENDO shall not relieve LICENSEE of
its sole responsibility for the development and quality of the Artwork or in any way create any
warranty for the Artwork or any Licensed Product by NINTENDO.



     4.5 Artwork for Bulk Goods. If LICENSEE submits an order for Bulk Goods, all Artwork
shall be submitted to NINTENDO in advance of NINTENDO’s acceptance of the order and no production
of Printed Materials shall occur until such Artwork has been approved by NINTENDO under Section 4.4
herein.





 




			
	*	 	Information has been omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934, as amended.




PAGE 5 OF 16









 










5. ORDER PROCESS, PURCHASE PRICE, PAYMENT AND DELIVERY 




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



     5.2 Purchase Price and Minimum Order Quantities. The purchase price and minimum order
quantities for Finished Products and Bulk Goods shall be set forth in NINTENDO’s then current Price
Schedule. The purchase price includes the cost of manufacturing the Licensed Products. No taxes,
duties, import fees or other tariffs related to the development, manufacture, import, marketing or
sale of the Licensed Products are included in the purchase price and all such taxes are the
responsibility of LICENSEE (except for taxes imposed on NINTENDO’s income). The Price Schedule is
subject to change by NINTENDO at any time, provided, however, that any price increase shall be
applicable only to purchase orders submitted, paid for, and accepted by NINTENDO after the
effective date of the price increase.



     5.3 Payment. [       *       ]



     5.4 Shipment and Delivery. NINTENDO shall deliver the Finished Products and Bulk
Goods ordered by LICENSEE to LICENSEE FOB Japan, CIP European Destination or ex-warehouse
Grossostheim, as per the terms in the Price Schedule. [       *       ]Upon mutual consent of
NINTENDO and LICENSEE, orders may be delivered in partial shipments with a minimum shipment
quantity as specified in the Price Schedule. Such orders shall be delivered only to countries
within the Territory. Title to the Licensed Products shall vest in accordance with the terms of
the applicable letter of credit or, in the absence thereof, per Incoterms 2000.



6. MANUFACTURE OF THE LICENSED PRODUCT




     6.1 Manufacturing. Given NINTENDO’s ownership of the valuable Intellectual Property
Rights, NINTENDO shall be the exclusive source for the manufacture of the Game Cards, and shall
control all aspects of the manufacturing process, including the selection of the locations and
specifications for any manufacturing facilities, determination of materials and processes,
appointment of suppliers and subcontractors, and management of all work-in-progress.



     6.2 Manufacture of the Licensed Products. Upon acceptance by NINTENDO of a purchase
order for an approved Licensed Product title and payment as provided for under Section 5.3 herein,
NINTENDO will arrange for the manufacture of Finished Product or Bulk Goods, as specified in
LICENSEE’s purchase order. In this regard, LICENSEE shall submit to NINTENDO certain technical
information as set forth in a questionnaire entitled “Software Submission Requirements” which has
been provided to LICENSEE by NINTENDO.



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



     6.4 Production of Bulk Goods Printed Materials. For Bulk Goods, LICENSEE shall
arrange and pay for the production of the Printed Materials using the Artwork. Upon receipt of an
order of Bulk Goods, LICENSEE shall assemble the Game Cards and Printed Materials into the Licensed
Products. Licensed Products may be sold or otherwise distributed by LICENSEE only in fully
assembled condition and placed in a plastic case or other protective packaging.





 




			
	*	 	Information has been omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934, as amended.




PAGE 6 OF 16









 










     6.5 Sample Printed Materials and Bulk Goods. Within a reasonable period of time after
LICENSEE’s assembly of the initial order for a Bulk Goods title, LICENSEE shall provide NINTENDO
with (a) [       *       ] of the fully assembled, Licensed Product, and (b) [       *       ] of LICENSEE
produced Printed Materials for such Licensed Product.



     6.6 Retention of Sample Licensed Products by NINTENDO. NINTENDO may, at its own
expense, manufacture reasonable quantities of the Game Cards or the Licensed Products, not to
exceed fifty (50) units, to be used for archival purposes, legal proceedings against infringers of
the Intellectual Property Rights or for other lawful purposes (but not for resale).



7. MARKETING AND ADVERTISING




     7.1 Approval of Marketing Materials. LICENSEE represents and warrants that the
Marketing Materials shall (a) be of high quality and comply with the Guidelines as well as the
guidelines of the PEGI, and (b) comply with all applicable laws, regulations and official codes of
practice in those jurisdictions in the Territory where they will be used or distributed. All
LICENSEE controlled websites featuring the Games shall adopt a privacy policy that complies with
all applicable local laws, regulations and official guidelines. To protect NINTENDO’s valuable
Intellectual Property Rights, to prevent the dilution of NINTENDO’s trade marks, and to avoid use
of the licensed Intellectual Property Rights giving rise to any implication of NINTENDO’s
sponsorship, association, approval or endorsement where this is not the case, prior to actual use
or distribution, LICENSEE shall submit to NINTENDO for review samples of all proposed Marketing
Materials. NINTENDO shall, within [       *       ] of receipt, approve or disapprove the quality of
such samples. If any of the samples are disapproved, NINTENDO shall specify the reasons for such
disapproval and state what corrections and/or improvements are necessary. After making the
necessary corrections and/or improvements, LICENSEE shall submit revised samples for approval by
NINTENDO. No Marketing Materials shall be used or distributed by LICENSEE without NINTENDO’s prior
written approval. NINTENDO shall not unreasonably withhold or delay its approval of any proposed
Marketing Materials.



     7.2 No Bundling. To protect NINTENDO’s valuable Intellectual Property Rights, to
prevent the dilution of NINTENDO’s trademarks, and to avoid use of the licensed Intellectual
Property Rights giving rise to any implication of NINTENDO’s sponsorship, association, approval or
endorsement where this is not the case, LICENSEE shall not, without NINTENDO’s prior written
approval, market or distribute any Licensed Products that are bundled with (a) any peripheral
designed for use with the Nintendo DS system that has not been licensed or approved in writing by
NINTENDO, or (b) any other product or service where NINTENDO’s sponsorship, association, approval
or endorsement might be suggested by the bundling of the products or services.



     7.3 Warranty and Repair. LICENSEE shall provide the original consumer with a minimum
[       *       ] (or such longer minimum period as may be required by applicable law) limited warranty
on all Licensed Products. LICENSEE shall also provide reasonable product service, including
out-of-warranty service, for all Licensed Products.



     7.4 Business Facilities. LICENSEE agrees to develop and maintain sufficient customer
service, either directly or through a third party, to adequately support the Licensed Products”.



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



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





 




			
	*	 	Information has been omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934, as amended.




PAGE 7 OF 16









 










     7.7 Nintendo Promotional Materials, Publications and Events. [       *       ]
LICENSEE agrees that, with a view to improving the competitiveness of the video game products
consisting of Nintendo video game systems and services and compatible software published by
LICENSEE and others, at its option, NINTENDO may (a) insert in the Printed Materials for the
Licensed Products promotional materials concerning publications and promotions for such video game
products, (b) subject to any necessary approval or consent with any third-party licensor to
LICENSEE, utilize screen shots, Artwork and information regarding the Licensed Products in all
NINTENDO published or officially licensed magazines, official NINTENDO-sponsored web sites,
or other advertising, promotional or marketing media that promotes such video game products,
services or programs, and (c) exercise public performance rights in the Games and use related
trademarks and Artwork in connection with NINTENDO sponsored contests, tours, conventions, trade
shows, press briefings and similar events that promote such video game products.



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



8. CONFIDENTIAL INFORMATION




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



     8.2 Disclosures Required by Law. LICENSEE shall be permitted to disclose Confidential
Information if such disclosure is required by an authorized governmental or judicial entity,
provided that NINTENDO is given Notice thereof at least [       *       ] prior to such disclosure, or
such lesser period as may be needed to comply with such requirement. LICENSEE shall use its best
efforts to limit the disclosure to the greatest extent possible, consistent with LICENSEE’s legal
obligations, and if required by NINTENDO, shall cooperate in the preparation and entry of
appropriate court orders limiting the persons to whom Confidential Information may be disclosed and
the extent of disclosure of such Confidential Information.



     8.3 Disclosure and Use. NINTENDO may provide LICENSEE with highly confidential
development information, Guidelines, Development Tools, systems, specifications and related
resources and information constituting and incorporating the Confidential Information to assist
LICENSEE in the development of Games. LICENSEE agrees to maintain all Confidential Information





 




			
	*	 	Information has been omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934, as amended.




PAGE 8 OF 16









 









as strictly confidential and to use such Confidential Information only in accordance with this
Agreement. LICENSEE shall limit access to the Confidential Information to LICENSEE’s employees
having a strict need to know and shall advise such employees of their obligation of confidentiality
as provided herein. LICENSEE shall require each such employee to retain in confidence the
Confidential Information pursuant to a written non-disclosure agreement between LICENSEE and such
employee. LICENSEE shall use its best efforts to ensure that its employees working with or
otherwise having access to Confidential Information shall not disclose or make any unauthorized use
of the Confidential Information.




     8.4 No Disclosure to Independent Contractors. LICENSEE shall not disclose the
Confidential Information, including without limitation the Guidelines and Intellectual Property
Rights, to any Independent Contractor, nor permit any Independent Contractor to perform or assist
in development work for a Game, without the prior written consent of NINTENDO. Any Independent
Contractor seeking access to Confidential Information shall be required to enter into a written
non-disclosure agreement with NINTENDO or NOA prior to receiving any access to or disclosure of the
Confidential Information from either LICENSEE or NINTENDO.



     8.5 Agreement Confidentiality. LICENSEE agrees that the terms, conditions and
contents of this Agreement shall be treated as Confidential Information. Any public announcement
or press release regarding this Agreement or the release dates for Games developed by LICENSEE
under this Agreement shall be subject to NINTENDO’s prior written approval. The parties may
disclose this Agreement (a) to accountants, banks, financing sources, lawyers, parent companies and
related parties under substantially equivalent confidentiality obligations, (b) in connection with
any formal legal proceeding for the enforcement of this Agreement, (c) as required by the
regulations of the government agencies in the Territory that regulate publicly-traded securities,
provided that all Confidential Information regarding NINTENDO shall be edited from such disclosures
to the maximum extent allowed by such government agencies, (d) in response to lawful process,
subject to court order limiting the persons to whom Confidential Information may be disclosed and
the extent of disclosure of such Confidential Information, approved in advance by NINTENDO, and (e)
to a third party proposing to enter into a business transaction with LICENSEE or with NINTENDO, but
only to the extent reasonably necessary for carrying out the proposed transaction and only under
terms of mutual confidentiality.



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



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



9. REPRESENTATIONS AND WARRANTIES




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



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




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




          (c) excluding the Intellectual Property Rights, LICENSEE is either (i) the sole owner of all
right, title and interest in and to the trademarks, copyrights and other intellectual property
rights used on or in association with the development, advertising, marketing and sale of the
Licensed Products and the Marketing Materials, or (ii) the holder of such rights to the trademarks,
copyrights and other intellectual property rights that have been licensed from a third party as are
necessary for



PAGE 9 OF 16









 






the development, advertising, marketing and sale of the Licensed Products and the Marketing
Materials under this Agreement.




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



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




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




     9.3 INTELLECTUAL PROPERTY RIGHTS DISCLAIMER BY NINTENDO. NINTENDO MAKES NO
REPRESENTATION OR WARRANTY CONCERNING THE SCOPE OR VALIDITY OF THE INTELLECTUAL PROPERTY RIGHTS.
NINTENDO DOES NOT WARRANT THAT THE DESIGN, DEVELOPMENT, ADVERTISING, MARKETING OR SALE OF THE
LICENSED PRODUCTS OR THE USE OF THE INTELLECTUAL PROPERTY RIGHTS BY LICENSEE WILL NOT INFRINGE UPON
PATENT, COPYRIGHT, TRADEMARK OR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY. TO THE MAXIMUM EXTENT
LEGALLY PERMISSIBLE, ANY WARRANTY, CONDITION OR TERM THAT MAY BE PROVIDED IN ANY APPLICABLE
PROVISION OF ANY LAW OR REGULATION IN THE TERRITORY GOVERNING COMMERCIAL ACTIVITY, OR ANY OTHER
COMPARABLE LAW OR STATUTE IS EXPRESSLY DISCLAIMED. LICENSEE HEREBY ASSUMES THE RISK OF
INFRINGEMENT.



     9.4 GENERAL DISCLAIMER BY NINTENDO. NINTENDO DISCLAIMS ANY AND ALL WARRANTIES WITH
RESPECT TO THE LICENSED PRODUCTS, INCLUDING, WITHOUT LIMITATION, THE SECURITY TECHNOLOGY. LICENSEE
PURCHASES AND ACCEPTS ALL LICENSED PRODUCTS ON AN “AS IS” AND “WHERE IS” BASIS. NINTENDO DISCLAIMS
ALL WARRANTIES UNDER THE APPLICABLE LAWS OF ANY COUNTRY, EXPRESS OR IMPLIED, INCLUDING IMPLIED
WARRANTIES CONDITIONS OR OTHER TERMS OF ANY KIND OF MERCHANTABILITY OR FITNESS FOR A GENERAL OR
PARTICULAR PURPOSE.



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



10. INDEMNIFICATION




     10.1 LICENSEE’s Indemnification. LICENSEE shall indemnify and hold harmless NINTENDO
(and any of its affiliates, subsidiaries, licensors, suppliers, officers, directors, employees or
agents) from any third-party claims, losses, liabilities, damages, expenses and costs, including,
without limitation, reasonable attorneys’ fees and costs and any expenses incurred in the
settlement or avoidance of any such claim, that result from or are in connection with:



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




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




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




PAGE 10 OF 16









 








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




     NINTENDO and LICENSEE shall give prompt Notice to the other of any indemnified claim under
this Section 10.1. With respect to any third party claim subject to this indemnity clause,
LICENSEE, as indemnifying party, shall have the right to select counsel and to control the defense
and/or settlement thereof. NINTENDO may, at its own expense, participate in such action or
proceeding with counsel of its own choice. LICENSEE shall not enter into any settlement of any
such claim in which (i) NINTENDO has been named as a party, or (ii) claims relating to the
Intellectual Property Rights have been asserted, without NINTENDO’s prior written consent.
NINTENDO shall provide reasonable assistance to LICENSEE in its defense of any such claim.



     10.2 LICENSEE’s Insurance. LICENSEE shall, at its own expense, obtain a commercial
general liability insurance policy (including coverage for advertising injury and product liability
claims) from an insurance company. [       *       ] Such policy shall
name NINTENDO as an additional insured and shall specify that it may not be canceled without [       *
     ] prior written Notice to NINTENDO. A Certificate of Insurance shall be provided to NINTENDO
not later than the date of the initial order of Licensed Products under this Agreement or within [     
*       ] of the Effective Date of this Agreement, whatever date occurs later. If LICENSEE fails to
provide NINTENDO with such Certificate of Insurance or fails to maintain such insurance at any time
during the Term and for a period of [       *      ] thereafter, NINTENDO, in its sole discretion may: (a)
terminate this Agreement in accordance with Section 13.2 herein; or (b) secure comparable insurance
for the benefit of NINTENDO only, and not for LICENSEE, at LICENSEE’s expense.



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



11. PROTECTION OF PROPRIETARY RIGHTS




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



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



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





 




			
	*	 	Information has been omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934, as amended.




PAGE 11 OF 16









 










12. ASSIGNMENT




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



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



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



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



13. TERM AND TERMINATION




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



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





 




			
	*	 	Information has been omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934, as amended.




PAGE 12 OF 16









 










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



     13.4 Termination Other Than by Breach. Upon (a) the expiration of this Agreement, (b)
its termination other than by LICENSEE’s breach, or (c) termination of this Agreement by NINTENDO
after [       *       ] Notice to LICENSEE in the event NINTENDO reasonably believes that LICENSEE has
developed, marketed, or sold a product that infringes any intellectual property rights of NINTENDO
anywhere in the world (provided that if the parties are able to resolve such alleged infringement
within such [       *      ] period, such termination shall not take effect), LICENSEE shall have a period
of [       *       ] to sell any unsold Licensed Products. All Licensed Products in LICENSEE’s control
following the expiration of such sell-off period shall be destroyed by LICENSEE within [      *      ] and
proof of such destruction (certified by an officer of LICENSEE) shall be provided to NINTENDO.



     13.5 Termination by LICENSEE’s Breach. If this Agreement is terminated by NINTENDO as
a result of a breach of its terms and conditions by LICENSEE, LICENSEE shall immediately cease all
distribution, advertising, marketing or sale of any Licensed Products. All Licensed Products in
LICENSEE’s control as of the date of such termination shall be destroyed by LICENSEE within [      *      ]
and proof of such destruction (certified by an officer of LICENSEE) shall be provided to NINTENDO.



     13.6 Breach of NDA or Other NINTENDO License Agreements. At NINTENDO’s option, any
breach by LICENSEE of (a) the NDA, or (b) any other license agreement between NINTENDO and LICENSEE
relating to the development of games for any Nintendo video game system that is not cured within
the time period for cure allowed under the applicable agreement, shall be considered a material
breach of this Agreement (and which shall give NINTENDO reasonable cause to believe that it needs
to terminate this Agreement so as to protect its legitimate business interests) entitling NINTENDO
to terminate this Agreement in accordance with Section 13.5 herein.



     13.7 No Further Use of the Intellectual Property Rights. Upon expiration and/or
termination of this Agreement, LICENSEE shall cease all use of the Intellectual Property Rights for
any purpose, except as may be required in connection with the sale of Licensed Products authorized
under Section 13.4 herein. LICENSEE shall, within [       *       ] thereafter, return or destroy
all Guidelines, writings, drawings, models, data, tools and other materials and things in
LICENSEE’s possession or in the possession of any past or present employee, agent or contractor
receiving the information through LICENSEE, that constitute or relate to or disclose any
Confidential Information, without making copies or otherwise retaining any such information. Proof
of any destruction shall be certified by an officer of LICENSEE and promptly provided to NINTENDO.



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



14. GENERAL PROVISIONS




     14.1 Compliance with Applicable Laws and Regulations. LICENSEE shall at all times
comply with applicable laws, regulations and orders in the countries of the Territory relating to
or in any way affecting this Agreement and LICENSEE’s performance under this Agreement, including,
without limitation, the export laws and regulations of any country with jurisdiction over the
Licensed Products and/or either party. LICENSEE shall not market, distribute, or sell the Game
and/or Game Cards in any country in the Territory in which such marketing, distribution or sale
would violate any applicable laws, regulations or orders of such country.





 




			
	*	 	Information has been omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934, as amended.




PAGE 13 OF 16









 










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



     14.3 Records and Audit. During the Term and for a period of [       *       ] thereafter,
LICENSEE agrees to keep accurate, complete and detailed records related to the development and sale
of the Licensed Products and the Marketing Materials. Upon reasonable Notice to LICENSEE, NINTENDO
may, at its expense, arrange for a third party audit of LICENSEE’s records, reports and other
information related to LICENSEE’s compliance with this Agreement.



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



     14.5 Survival. In addition to those rights specified elsewhere in this Agreement that
may reasonably be interpreted or construed as surviving, the rights and obligations set forth in
Sections 3, 8, 9, 10, 13 and 14 shall survive any expiration or termination of this Agreement to
the degree necessary to permit their complete fulfilment or discharge.



     14.6 Governing Law and Venue. This Agreement shall be governed by the laws of Japan,
without regard to its conflict of laws principles. Any legal action (including judicial and
administrative proceedings) with respect to any matter arising under or growing out of this
Agreement, shall be brought only in the Kyoto District Court. Each party hereby consents to the
jurisdiction and venue of such courts for such purposes.



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



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



     14.9 Expansion of Rights. NINTENDO may expand the rights granted to LICENSEE under
this Agreement by providing written notice of such expansion of rights to LICENSEE and without
having to enter into a written addendum to the present Agreement with LICENSEE.



     14.10 Delegation of Duties. NINTENDO, at its option, may delegate its duties under the
present Agreement to a wholly owned subsidiary. To the extent necessary for the parties to carry
out





 




			
	*	 	Information has been omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934, as amended.




PAGE 14 OF 16









 









their duties under this Agreement, NINTENDO shall provide notice to LICENSEE of any such
delegation, including to whom at NINTENDO’s wholly owned subsidiary communications from LICENSEE
under this Agreement may be directed. Also in the event of a delegation by NINTENDO, the
provisions of this Agreement shall continue to govern the relationship between NINTENDO and
LICENSEE and shall govern the relationship between NINTENDO’s subsidiary and LICENSEE, subject to
any amendments or modifications to this Agreement which such subsidiary and LICENSEE may agree to
in their relationship. NINTENDO shall remain obligated under the present Agreement for the
performance of NINTENDO’s duties by NINTENDO’s subsidiary.




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


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




	 	 	 	 	 	 	 	 	 
	NINTENDO:	 	LICENSEE:	 	 
	 
	 	 	 	 	 	 	 	 
	NINTENDO CO., LTD.	 	MIDWAY GAMES LTD.	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Satoru Iwata
 

	 	By:
	 	/s/ Martin Spiess
 

	 	 
	Name:

	 	Satoru Iwata
	 	Name:
	 	Martin Spiess	 	 
	Title:

	 	President
	 	Title:
	 	MD-Europe	 	 
	Date:

	 	June 16 2006
	 	Date:
	 	18-05-06	 	 





Enclosure:

     Annex A — Guidelines on Ethical Content




PAGE 15 OF 16









 








Annex A




Guidelines on Ethical Content



The following Guidelines on Ethical Content are presented for assistance in the development of
Games by defining the types of the theme inconsistent with NINTENDO’s corporate philosophy.
Exceptions may be made when necessary to maintain the integrity of the Game or the Game’s theme.
Games shall not:





	 	(a)	 	contain sexually explicit content including but not limited to nudity,
rape, sexual intercourse and sexual touching; for instance, NINTENDO does not
allow bare-breasted women in Games, however, mild displays of affection such as
kissing or hugging are acceptable;
	 
	 	(b)	 	contain language or depictions which specifically denigrate members of any
race, gender, ethnicity, religion or political group;
	 
	 	(c)	 	depict gratuitous or excessive blood or violence. NINTENDO does not
permit depictions of animal cruelty or torture;
	 
	 	(d)	 	depict verbal or physical spousal or child abuse;
	 
	 	(e)	 	permit racial, gender, ethnic, religious or political stereotypes; for
example, religious symbols such as crosses will be acceptable when fitting into
the theme of the Game and not promoting a specific religious denomination;
	 
	 	(f)	 	use profanity, obscenity or incorporate language or gestures that are
offensive by prevailing public standards and tastes; and
	 
	 	(g)	 	promote the use of illegal drugs, smoking materials, tobacco and/or
alcohol; for example NINTENDO does not allow gratuitous beer or cigarette
advertisement anywhere in a Game; however, Sherlock Holmes smoking a pipe would
be acceptable as it fits the theme of the Game.






PAGE 16 OF 16