Exhibit
10.47


 


CONFIDENTIAL FIRST RENEWAL
LICENSE AGREEMENT


FOR THE WiiTM CONSOLE

(EEA, AUSTRALIA, AND NEW ZEALAND)


 


 


THIS
FIRST RENEWAL 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
Division, International Business Department (Fax: 81.75.662.9620); and,  THQ INC., whose address for contact is 29903 Agoura Road,
Agoura Hills, California 91301 (Fax: 818.871.7400), Attn: VP of Business and
Legal Affairs; and THQ (UK) LIMITED
at Dukes Court, Duke Street, Woking, Surrey GU21 5BH, United Kingdom; and THQ ENTERTAINMENT GmbH at Kimplerstrabe 278, 47807 Krefeld, Germany; and THQ FRANCE  SARL, at 1 rue Saint Georges, 75009 Paris, France; and THQ ASIA PACIFIC PTY LTD., at Level 8, 606 St. Kilda Road,
Melbourne, VIC 3004, Australia; and THQ INTERACTIVE
ENTERTAINMENT ESPAÑA, SL, at Avda de Europa 19, Edificio 1, 1a
planta, Pozuela de Alarcón, 28224, Madrid, Spain; and THQ ITALY
SRL, at Strada della Ronna 53, 21013 Gallarate (VA), Italy, and a
legal address at Via Monte Rosa 91, 20149 Milan, Italy (together and severally:
“LICENSEE”).  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 WiiTM video game console (“WiiTM”).


 


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


 


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


 


1.4           By a prior agreement between the parties effective October 30,
2006 (hereinafter the “Initial Agreement”), NINTENDO granted to LICENSEE the
right to develop video games compatible with the WiiTM Console, embodying and
using the Licensed Intellectual Properties. 
The Initial Agreement is due to expire on October 30, 2009.  The parties desire to enter into a renewal
agreement (hereinafter the “Agreement”) effective as of the expiration date of
the Initial Agreement, to continue the relationship between the parties without
interruption, with the Agreement consisting of the terms and conditions set
forth herein.


 


2.             DEFINITIONS


 


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


 


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


 


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


 


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


 


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


 


2.6           “Effective
Date” means the expiration date of the Initial Agreement.


 


2.7           “Finished
Product(s) means the fully assembled Game Disc with a Game Disc label, Printed
Materials, and packed in a plastic storage case.


 


2.8           “Game
Disc(s)” means custom optical discs for play on WiiTM on which a Game has been
stored.


 


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


 


2.10         “Guidelines”
means the then-current version of “WiiTM Programming Guidelines;” “Licensee
Packaging Guidelines” pertaining to the layout, trademark usage and
requirements of the Game Disc label, instruction manual and Game Disc
packaging; “Marketing Materials”; “Nintendo Trademark Guidelines;” “Guidelines
on Ethical Content”; and  “Nintendo WiiTM
Software Submission Requirements,” together with other guidelines provided by
NINTENDO 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 (provided such changes or updates
shall be delivered to LICENSEE as soon as possible thereafter), and the
versions current from time to time will be available on request from NINTENDO.


 


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


 


2.12         “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 WiiTM including NintendoTM, WiiTM, Official Nintendo Seal of QualityTM, and MiiTM, (b) select trade
dress associated with WiiTM and licensed video games for play thereon, (c) Proprietary
Rights in the Security Technology employed in the Games or Game Discs by
Nintendo, (d) rights in the Development Tools for use in developing the Games,
excluding, however, rights to use, incorporate or duplicate select libraries,
protocols and/or sound or graphic files associated with the Development Tools
which belong to any third party and for which no additional licenses or
consents are required, (e) patents, patent applications, design registrations,
utility models or copyrights which may be associated with the Game Discs or
Printed Materials, (f) copyrights in the Guidelines, and (g) other Proprietary
Rights of Nintendo in the Confidential Information.


 


2.13         “Licensed
Products” means (a) Bulk Goods, and/or (b) Finished Products after being
assembled and packaged with the Printed Materials in accordance with the
Guidelines.


 


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


 


2.15         “NDA”
means the non-disclosure agreement related to WiiTM previously entered into
between NINTENDO and/or NOA and LICENSEE.


 


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


 


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2.17         “Notice”
means any notice permitted or required under this Agreement.  All Notices shall be sufficiently given when
(a) personally served or delivered, or (b) transmitted by facsimile, with an
original sent concurrently by mail, or (c) deposited, carriage 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, or (d) transmitted by e-mail with an express written acknowledgement of
receipt sent personally by or on behalf of the recipient (which shall include
any automated reply).  Notice shall be deemed
effective upon the earlier of actual receipt or two (2) business days after
transmittal, provided, however, any Notice received after the recipient’s
normal business hours will be deemed received on the next business day.


 


2.18         “Price
Schedule” means the then-current version of NINTENDO’s schedule of purchase
prices and minimum order quantities for the Finished Products and the 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 (provided such changes or updates
shall be delivered to LICENSEE as soon as possible thereafter), and the version
current from time to time will be available on request from NINTENDO.


 


2.19         “Printed
Materials” means title page, instruction booklet, precaution booklet, and
optional printed materials.


 


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


 


2.21         “Proprietary
Rights” means any rights or applications for rights owned, licensed or
otherwise held in patents, patent applications, utility models, registered
design rights, unregistered design rights, trademarks, service marks, copyrights,
and neighboring rights, semiconductor chip layouts or masks, database rights,
trade secrets, trade dress, get up, 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 patents, patent
applications, utility models, registered design rights, unregistered design
rights, trademarks, service marks, copyrights, and neighboring rights,
semiconductor chip layouts or masks, database rights, trade secrets, trade
dress, get up, moral rights or publicity rights may exist or may be sought and
obtained in the future.


 


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


 


2.23         “Reverse
Engineer(ing)” means, without limitation, ****.


 


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


 


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


 


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


 


2.27         “Territory”
means any and all countries within the European Economic Area; namely Albania,
Austria, Belgium, Bosnia, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark,
Estonia,


 




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





 


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Finland, France,
Germany, Greece, Herzegovina, Hungary, Iceland, Ireland, Italy, Latvia,
Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Montenegro, the
Netherlands, Norway, Poland, Portugal, Romania, Serbia, Slovakia, Slovenia,
Spain, Sweden, and the United Kingdom. 
The Territory shall also include Australia, New Zealand, Russia, South
Africa, Switzerland and Turkey.  NINTENDO
may add additional countries to the Territory upon written notice to
LICENSEE.  NINTENDO makes no
representations or warranties that the WiiTM is being or will continue to be
distributed in all of the foregoing countries.


 


2.28         “TM”
means trademark of NINTENDO, whether registered or not.


 


2.29         “Wii
Network Services” means and includes the Wii Shop Channel Services,
WiiTMConnect24, and any related services and material delivered to a consumer’s
WiiTM console over the Internet.


 


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 (or have developed on LICENSEE’s behalf) Games for manufacture,
advertising, marketing and sale by LICENSEE as Licensed Products, subject to
the terms and conditions of this Agreement. 
****


 


3.2           LICENSEE Acknowledgement.  LICENSEE’s use of the Intellectual Property
Rights shall not create any right, title or interest of LICENSEE therein.  LICENSEE is authorized and permitted to
develop Games, and have manufactured, advertise, market, and sell Licensed
Products, only for play on WiiTM and only in accordance with this Agreement.  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.  Nothing contained herein shall be deemed to
grant NINTENDO any right, title, or interest in and to those portions of the
Licensed Products that do not consist of NINTENDO’s Intellectual Property
Rights, Proprietary Rights, or Confidential Information associated with the
WiiTM system.


 


3.3           Restrictions on License Grant.  NINTENDO does not guarantee that the hardware
for the WiiTM 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, cable, fiber optic, telephone lines, microwave, radiowave, computer
or other device network, except (a) as a part of wireless Game play on and
among WiiTM systems, or between WiiTM and Nintendo DS systems, (b) for the
purpose of facilitating Game development under the terms of this Agreement, or
(c) as otherwise approved in writing by NINTENDO. LICENSEE shall use reasonable
security measures, customary within the high technology industry, to reduce the
risk of unauthorized interception or retransmission of any Game
transmission.  No right of retransmission
shall attach to any authorized transmission of a Game;


 


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


 


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


 


(d)           emulate,
interoperate, interface or link a Game for operation or use with any hardware
or software platform, accessory, computer language, computer environment, chip
instruction set, consumer electronics device or device other than WiiTM, the
Nintendo DS system, the


 




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





 


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Development Tools or
such other Nintendo system as NINTENDO may authorize in the Guidelines;


 


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


 


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


 


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


 


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


 


(i)            Reverse Engineer or assist in Reverse Engineering all or any part of WiiTM,
including the hardware, software (embedded or not) or the Security Technology,
except as specifically permitted under the laws and regulations applicable in
the Territory.


 


Nothing
contained in this Section 3.3 shall be deemed to prevent LICENSEE from
developing a game or games for other video game platforms, where such game or
games have a similar audiovisual display, look, feel, or game elements as found
in the Game(s) developed by LICENSEE under this Agreement; provided, however,
that LICENSEE hereby acknowledges that any use of NINTENDO’s Intellectual
Property Rights, Proprietary Rights, and/or Confidential Information in such
other game or games without the prior written consent of NINTENDO would be
deemed to be a breach of this Agreement and an infringement of NINTENDO’s
Intellectual Property Rights.


 


3.4           Development Tools.  NINTENDO and NOA 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 or any third party licensing the Development
Tools.  LICENSEE acknowledges the
respective interests of NINTENDO, and in the case of third-party Development
Tools, such third parties, in and to the Proprietary Rights associated with the
Development Tools.  LICENSEE’s use of the
Development Tools shall not create any right, title or interest of LICENSEE
therein.  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) without NINTENDO’s prior
written approval, selling, leasing, assigning, lending, licensing, encumbering
or otherwise transferring the Development Tools.  Anything developed or derived by LICENSEE as
a result of a study of the performance, design or operation of any Nintendo
Development Tools shall be considered a derivative work 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 Development Tools have one or more
applications that are independent of and separate from the Intellectual
Property Rights (“Independent Applications”), it shall be deemed to have
granted NINTENDO and NOA an indefinite, worldwide, royalty-free, transferable
and Sole License (including the right to sub-license) to such derivative work
Development Tools.  To the extent that
LICENSEE can demonstrate one or more Independent Applications of such
derivative work Development Tools, LICENSEE shall be deemed to have granted to
NINTENDO and NOA a royalty-free and transferable non-exclusive License
(including the right to sub-license) in relation to such Independent
Applications for the Term.  Anything
developed or derived by LICENSEE as a result of a study of the performance,
design or operation of any third-party Development Tools shall be governed by
the terms of the license agreement applicable to such Development Tools.  Notwithstanding
any referral or information provided or posted regarding third-party
Development Tools, NINTENDO and NOA make no representations or warranties with
regard to 


 


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any such third-party
Development Tools.  LICENSEE
acquires and utilizes third-party Development Tools at its own risk.


 


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


 


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


 


3.7           Use of MiiTM Characters.  LICENSEE shall not develop any Game that
permits NINTENDO’s MiiTM characters to appear in the Game without NINTENDO’s
prior written consent.


 


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


 


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


 


4.             SUBMISSION AND APPROVAL OF GAME AND ARTWORK


 


4.1           Submission of a Completed Game to NINTENDO.  Upon completion of a Game, LICENSEE shall
deliver a prototype of the Game to NINTENDO in a format specified in the
Guidelines.  Delivery shall be made in
accordance with the methods set forth in the Guidelines.  Each Submission shall include such other
information or documentation deemed necessary by NINTENDO, including, without
limitation, a complete set of written user instructions, a complete description
of any security holes, backdoors, time bombs, cheats, “Easter eggs” or other
hidden features or characters in the Game (of which LICENSEE is aware) and a
complete screen text script.  LICENSEE
must establish that the Game and any other content included on the Game Disc
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.


 


4.2           Testing of a Completed Game.  Upon submission of a completed Game, NINTENDO
shall promptly test the Game with regard to its technical compatibility with,
and error-free operation on, WiiTM utilizing the lot check process.  Within a reasonable period of time after
receipt, NINTENDO shall approve or disapprove such Game in writing, which may
include by e-mail.  If a Game is
disapproved, NINTENDO shall specify in writing the reasons for such disapproval
and state what corrections are necessary. 
After making the necessary corrections, LICENSEE shall submit a revised
Game to NINTENDO for testing.  NINTENDO
shall not unreasonably withhold or delay its approval of 


 


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any Game.  Neither the testing nor approval of a Game by
NINTENDO shall relieve LICENSEE of its sole responsibility for the development,
quality and operation of the Game or in any way create any warranty by NINTENDO
relating to any Licensed Product.


 


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


 


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


 


4.5           Cost of Check Discs and Disc Stamper.  If LICENSEE: 
(a) disapproves the Check Discs for any reason (except if the
disapproval is due to defects in or failure of the Check Discs due to NINTENDO’s
act, error or omission); (b) fails to order the minimum order quantity of any
Game approved by NINTENDO within six (6) months after the date the Game was
first approved by NINTENDO; or (c) submits a revised version of the Game to
NINTENDO after production of such Game has commenced, LICENSEE shall reimburse
NINTENDO (or its designee) for the reasonable estimated cost of the production
of the Check Discs, including the cost of the disc stamper.  The payment will be due (i) thirty (30) days
after NINTENDO’s written notification to LICENSEE of the Check Disc fee due
NINTENDO because of LICENSEE’s failure to approve such Check Disc; (ii) six (6)
months after the date the Game was first approved by NINTENDO; or (iii) upon
the subsequent submission by LICENSEE of a revised version of the Game to
NINTENDO, as the case may be.


 


4.6           Submission and Approval of Artwork.  Prior to submitting a completed Game to
NINTENDO under Section 4.1, LICENSEE shall submit to NINTENDO all Artwork for
the proposed Licensed Product.  Within
ten (10) business days of receipt, NINTENDO shall approve or disapprove the
Artwork in writing, which may include by e-mail.  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 the Licensed Product by NINTENDO.  All Artwork must be approved prior to
submitting an order for the Bulk Goods or Finished Products, and LICENSEE shall
not produce any Printed Materials for commercial distribution until such
Artwork or Finished Products has been approved by NINTENDO.


 


4.7           Artwork for Bulk Goods.  If LICENSEE intends to submit an order for
Bulk Goods, all Artwork and other materials to be included with the Licensed
Product shall be submitted to NINTENDO in accordance with Section 4.6
herein.  No Printed Materials shall be
produced by LICENSEE until such Artwork has been approved by NINTENDO.


 


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


 


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5.             ORDER PROCESS, PURCHASE PRICE, PAYMENT AND
DELIVERY


 


5.1           Submission of Orders by LICENSEE.  After receipt of NINTENDO’s approval for a
Game and Artwork, LICENSEE may at any time submit a written purchase order 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 control over any
contrary or additional terms of such purchase order or any other written
documentation or verbal instruction from LICENSEE.  All orders shall be subject to acceptance by
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.  Unless
otherwise specifically provided for, the purchase price includes the cost of
manufacturing a single Game Disc.  No
taxes, duties, import fees or other tariffs related to the development,
manufacture, import, marketing or sale of the Licensed Products (except for
taxes imposed on NINTENDO’s income) are included in the purchase price and all
such taxes are the responsibility of LICENSEE. 
The Price Schedule is subject to change by NINTENDO at any time without
Notice, provided however, that any price increase shall be applicable only to
purchase orders submitted, paid for, and accepted by NINTENDO after the date of
the price increase.  Such changes shall
be delivered to LICENSEE as soon as possible thereafter.


 


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


 


5.4           Delivery of Licensed Products.  NINTENDO shall deliver the Finished Products
and Bulk Goods ordered by LICENSEE to LICENSEE FOB Japan, CIP European
Destination or ex-warehouse Grossostheim, per the terms in the Price Schedule.
Also per 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.


 


5.5           Rebate Program.  NINTENDO, at its sole option, may elect to
offer LICENSEE a Rebate Program.  The
terms and conditions of any Rebate Program shall be subject to NINTENDO’s sole
discretion.  LICENSEE shall not be
entitled to offset any claimed rebate amount against other amounts owing
NINTENDO.  No interest shall be payable
by NINTENDO to LICENSEE on any claimed rebate. 
The Rebate Program is subject to change or cancellation by NINTENDO at
any time without Notice.


 


6.             MANUFACTURE OF THE LICENSED PRODUCT


 


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


 


 


 




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





 


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


 


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


 


6.4           Sample Printed Materials.  Within a reasonable period of time after
LICENSEE’s assembly of an initial order for Bulk Goods for a Game title,
LICENSEE shall provide NINTENDO with (a) two (2) samples of the fully assembled
Licensed Product, and (b) twenty (20) samples of the LICENSEE produced Printed
Materials (excluding the plastic disc storage case, precaution booklet, and
other optional printed materials) for such Game title.


 


6.5           Retention of Sample Licensed Products by NINTENDO.  NINTENDO may, at its own expense,
manufacture reasonable quantities of the Game Discs or the Licensed Products,
and make a reasonable number of copies of the Printed Materials, not to exceed
**** copies, to be used for archival purposes, legal proceedings against
infringers of the Intellectual Property Rights, and for other lawful purposes
(but not for resale).


 


7.             MARKETING AND ADVERTISING


 


7.1           Approval of Marketing Materials.  LICENSEE represents and warrants that the
Printed Materials and the Marketing Materials shall be of high quality and
comply with (a) the Guidelines, (b) the guidelines of the PEGI, and (c) to the
best of LICENSEE’s knowledge, all applicable laws and regulations and official
codes of practice in those jurisdictions in the Territory where they will be used
or distributed, including without limitation all applicable privacy laws.  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, prior to actual use or distribution, LICENSEE shall submit to
NINTENDO for review samples of all proposed Marketing Materials.  NINTENDO shall, within ten (10) business days
of receipt, approve or disapprove of the quality of such samples.  If any of the samples are disapproved,
NINTENDO shall specify the reasons for such disapproval in writing, which may
include by e-mail, 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.  NINTENDO shall not
unreasonably withhold or delay its approval of any proposed Marketing
Materials.  No Marketing Materials shall
be used or distributed by LICENSEE without NINTENDO’s prior written approval.


 


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 Games or Game Discs that have been bundled with (a) any
peripheral designed for use with WiiTM that has not been licensed or approved in
writing by NINTENDO, provided that LICENSEE is responsible for ensuring that
any such peripheral shall comply with all applicable laws and regulations in
the Territory, or (b) any other product or service where NINTENDO’s
association, approval or endorsement might be suggested by bundling the
products or services.


 


 


 




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





 


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7.3           Warranty and Repair.  LICENSEE shall provide the original consumer
with a minimum ninety (90) day (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.  LICENSEE shall make such
warranty and repair information available to consumers as required by
applicable law, provided that the exact nature of such warranties and services
shall be determined by LICENSEE in its discretion, and further provided that
such warranties and services comply with the requirements of the laws and regulations
applicable in the Territory.


 


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 covenants that it shall not
knowingly 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.


 


7.7           NINTENDO Promotional Materials, Publications and Events.  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 and expense, NINTENDO may (a) 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, which promote NINTENDO products,
services or programs, and (b) exercise public performance rights in the Games
and use related trademarks and Artwork in connection with NINTENDO sponsored
contests, tours, conventions, trade shows, press briefings and similar events
which promote such video game products, subject to the prior written approval
of LICENSEE.


 


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


 


8.             CONFIDENTIAL INFORMATION


 


8.1           Definition.  Confidential Information means information
provided to LICENSEE by NINTENDO or any third party working with NINTENDO
relating to the hardware and software for WiiTM 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, proprietary manufacturing processes and/or trade secrets, (b) any
information on inventions, patents, or patent applications, (c) any business,
legal, marketing, pricing or sales data or information, and (d) any other
information or data relating to development, design, operation, manufacturing,
marketing or sales.  Confidential
Information shall include all confidential information disclosed, whether in
writing, orally, visually, or in the form of drawings, technical
specifications, software, samples, pictures, models, recordings, or other
tangible items which contain or manifest, in any form, the above listed
information.  Confidential Information
shall not include (i) data and information which was in the public domain prior
to LICENSEE’s receipt of the same hereunder, or which subsequently becomes part
of the public domain by publication or otherwise, except by LICENSEE’s wrongful
act or omission, (ii) data and information which LICENSEE can demonstrate,
through written records kept in the ordinary course of business, was in its
possession without restriction on use or disclosure, prior to its receipt of
the same hereunder, and was not acquired


 


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directly or
indirectly from NINTENDO or NOA under an obligation of confidentiality which is
still in force, and (iii) data and information which LICENSEE can show was
received by it from a third party who did not acquire the same directly or
indirectly from NINTENDO 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 LICENSEE shall notify NINTENDO
at least ten (10) days prior to such disclosure, or such lesser period as
may be needed to comply with such requirement. 
LICENSEE shall use its best commercial 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 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 individuals of their obligation of confidentiality as
provided herein.  LICENSEE shall require
each such individual to retain in confidence the Confidential Information
pursuant to a written non-disclosure agreement with LICENSEE.  LICENSEE shall use its best efforts to ensure
that individuals who are permitted hereunder to work with or otherwise have
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 that requires
use of the Confidential Information, 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 that is no less
restrictive than the terms of this Section 8, and that expressly includes
the following language, prior to receiving any access to or disclosure of the
Confidential Information from either LICENSEE or NINTENDO:


 


“Independent
Contractor may have access to highly-confidential and proprietary information,
intellectual property, and trade secrets of Nintendo Co., Ltd. and/or
Nintendo of America Inc. (collectively, “Nintendo”).  Independent Contractor expressly acknowledges
(i) the valuable nature of such materials; and (ii) Nintendo’s right,
title and interest in such materials. 
All such materials constitute confidential information under this
agreement and shall be treated by Independent Contractor as such.  Independent Contractor’s use of such
materials shall not create any right, title or interest of Independent
Contractor therein.  In the event that
Independent Contractor challenges Nintendo’s ownership or the validity of such
materials, Nintendo may terminate the agreement without any notice or
procedure.  Nintendo Co., Ltd. and
Nintendo of America Inc. are intended third-party beneficiaries of this
agreement.”


 


At
LICENSEE’s option, the written non-disclosure agreement may be with LICENSEE
rather than NINTENDO or NOA, in which case the form and substance of the
non-disclosure agreement must be acceptable to NINTENDO.  Upon NINTENDO or NOA’s reasonable written
request, LICENSEE shall provide to NINTENDO a listing of all Independent
Contractors who have received or been granted access to Confidential
Information along with copies of the applicable written non-


 


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disclosure
agreements.  In addition, LICENSEE shall
take all reasonable measures to ensure that its Independent Contractors fulfill
the requirements of the applicable written non-disclosure agreements.


 


LICENSEE
shall use its best commercial efforts to ensure that its employees working with
or otherwise having access to Confidential Information shall not disclose or
make unauthorized use of the Confidential Information.  LICENSEE agrees to indemnify NINTENDO against
all loss or damage, including consequential economic loss, for breach of these
obligations by the LICENSEE and its employees.


 


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,
such approval not to be unreasonably delayed or withheld.  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 and the United States that regulate publicly-traded
securities, provided that all Confidential Information 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 of which
LICENSEE becomes aware 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 provisions of this Agreement shall control.


 


9.             REPRESENTATIONS AND WARRANTIES


 


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


 


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


 


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


 


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


 


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


 


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(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 do not
conflict with any agreement or understanding to which NINTENDO may be bound.


 


9.3           INTELLECTUAL PROPERTY RIGHTS DISCLAIMER.  NINTENDO (ON ITS OWN BEHALF AND ON BEHALF OF
ITS AFFILIATES, SUBSIDIARIES, LICENSORS, SUPPLIERS AND SUBCONTRACTORS)
EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES CONCERNING THE SCOPE OR
VALIDITY OF THE INTELLECTUAL PROPERTY RIGHTS. 
NINTENDO (ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES,
SUBSIDIARIES, LICENSORS, SUPPLIERS AND SUBCONTRACTORS) EXPRESSLY DISCLAIMS ANY
WARRANTY THAT THE DESIGN, DEVELOPMENT, ADVERTISING, MARKETING OR SALE OF THE
LICENSED PRODUCTS OR THE USE OF THE INTELLECTUAL PROPERTY RIGHTS BY LICENSEE
WILL NOT INFRINGE UPON ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER PROPRIETARY
RIGHTS OF A THIRD PARTY 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 REGULATION, IS
EXPRESSLY DISCLAIMED.  LICENSEE HEREBY
ASSUMES THE RISK OF INFRINGEMENT.


 


9.4           GENERAL DISCLAIMER.  NINTENDO (ON ITS OWN BEHALF AND ON BEHALF OF
ITS AFFILIATES, SUBSIDIARIES, LICENSORS, SUPPLIERS AND SUBCONTRACTORS)
EXPRESSLY 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 (ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES,
SUBSIDIARIES, LICENSORS, SUPPLIERS AND SUBCONTRACTORS) EXPRESSLY DISCLAIMS ALL
WARRANTIES, CONDITIONS OR OTHER TERMS OF ANY KIND UNDER THE APPLICABLE LAWS OF
ANY COUNTRY, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A GENERAL OR PARTICULAR PURPOSE.


 


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


 


10.          INDEMNIFICATION


 


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


 


10.2         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 Claims which are alleged to
result from or be in connection with:


 


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


 


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


 


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Marketing Materials
by LICENSEE or on behalf of LICENSEE, excluding claims based solely upon the
Intellectual Property Rights,


 


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


 


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


 


NINTENDO
and LICENSEE shall give prompt Notice to the other of any Claim which is or
which may be subject to indemnification under this Section 10.  With respect to any such Claim, LICENSEE, as
indemnitor, shall have the right to select counsel and to control the defense
and/or settlement thereof.  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 Claim in which (a) NINTENDO has been named as a
party, or (b) Intellectual Property Rights have been asserted, without
NINTENDO’s prior written consent, which shall not be unreasonably
withheld.  NINTENDO shall provide
reasonable assistance to LICENSEE in its defense of any Claim.


 


10.3         LICENSEE’s Insurance.  LICENSEE shall, at its own expense, obtain a
comprehensive policy of general liability insurance (including coverage for
advertising injury and product liability Claims) from an insurance company
rated at least B+ by A.M. Best or a comparable rating by another
recognized insurance rating organization. 
Such policy of insurance shall be in an amount of not less than the
equivalent of **** on a per-occurrence basis and shall provide for adequate
protection against any Claims. Such policy shall name NINTENDO as an additional
insured and shall specify it may not be canceled without thirty (30) days’
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 thirty
(30) days 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 two (2) years thereafter
and fails to cure within thirty (30) days of written notice, NINTENDO, in
its sole discretion may (a) terminate this Agreement in accordance with
Section 13.2 herein; and/or (b) secure comparable insurance, at
LICENSEE’s expense, for the sole benefit and protection of NINTENDO.


 


10.4         Suspension of Production.  In the event NINTENDO deems itself at risk
with respect to any Claim 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.


 


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, 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 and
to the extent permitted by law, may bring any action or proceeding relating to
an infringement or potential infringement of LICENSEE’s Proprietary Rights in
the Licensed Products.  LICENSEE shall
make reasonable good faith efforts to inform 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.


 


 




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





 


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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 NINTENDO’s Intellectual Property Rights in the Licensed
Products.  NINTENDO shall make, in a
timely manner, reasonable, good faith efforts to inform LICENSEE of such
actions likely to affect LICENSEE’s rights. 
NINTENDO will have the right to retain all proceeds it may derive from
any recovery in connection with such actions.


 


12.          ASSIGNMENT


 


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


 


12.2         No Assignment by LICENSEE.  This Agreement and the subject matter hereof
are  personal to LICENSEE.  No Assignment of LICENSEE’s rights or
obligations hereunder shall be valid or effective without 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 thirty (30) days
prior written Notice thereof, which Notice shall disclose the name of the
proposed assignee, the proposed effective date of the proposed 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         Sale or Transfer of LICENSEE’s Business.  Notwithstanding the rights of NINTENDO
specified in Clauses 12.1-12.3, NINTENDO will not unreasonably withhold
its consent of LICENSEE’s assignment of the present Agreement in conjunction
with the sale or transfer of LICENSEE’s business related to this Agreement,
provided that the purchaser/transferee does not manufacture, or have
manufactured for it, a Competitive Game System. 
Such Competitive Game Systems include, but without limitation,
Apple/Bandai Pippin or Atmark, Atari Jaguar, Atari Lynx, 3D0 Real,
Matsushita MZ, Microsoft® XBox®, Microsoft
XBOX 360, Phillips CD-I Interactive Player, Sega Master System, Sega Genesis,
Sega CD, Sega Game Gear, Sega CD/X, Sega Katana, Sega Nomad,
Sega 32x, Sega Saturn, Sega Pico, Sony PSK/PlayStation®, Sony PSX2,
Sony PSP, Sony Personal Digital Assistant, and SNK Neo Geo.


 


Further,
with respect to Related Parties, this Agreement may be sold, assigned,
delegated, or sublicensed upon thirty (30) days’ prior notice to NINTENDO, provided
that any such sale, assignment, 


 


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delegation or
sublicense will require that the Related Party purchaser, assignor, delegate,
or sublicensee, affirmatively assume all of LICENSEE’s duties,
responsibilities, and obligations under this Agreement.  The term “Related Party(ies)” shall mean any
person or entity that directly or indirectly controls, is controlled by, or is
under common control with LICENSEE.  For
purposes of this definition, “control” (or any variation thereof) means
beneficial ownership of more than fifty percent (50%) of the equity or other
interests entitled to vote for the election of directors or equivalent
governing body of a person or entity. 
The term “Related Party(ies)” shall not include any person or entity
that directly or indirectly manufactures, or has manufactured for it, a
Competitive Game System.


 


12.5         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 continue for the Term, unless earlier terminated as provided
for herein.


 


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


 


13.3         Bankruptcy.  At 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 the expiration of this Agreement or its
termination other than by LICENSEE’s breach, ****.  All Licensed Products in LICENSEE’s control
following the expiration of such sell-off period shall be destroyed by LICENSEE
within ten (10) days and Notice of such destruction (with proof certified
by an officer of LICENSEE) shall be delivered to 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 ten (10) days and Notice of such destruction (with proof
certified by an officer of LICENSEE) shall be delivered to NINTENDO.


 


13.6         Breach of NDA or other NINTENDO License Agreements.  At NINTENDO’s option, any material
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, which breach is not cured within the time period
for cure allowed under the applicable 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), shall be considered a material
breach of this Agreement 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 or termination of
this Agreement, LICENSEE shall cease all use of the Intellectual Property
Rights for any purpose, except as may be required in connection with the sale
of the Licensed Products authorized under Section 13.4 herein.  LICENSEE shall, within thirty (30) days
of expiration or termination, (a) return to NINTENDO all Development Tools
provided to LICENSEE by NINTENDO, and (b) return to NINTENDO or destroy
any and all copies of materials constituting, relating to, or disclosing any


 


 




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





 


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Confidential
Information, including but not limited to Guidelines, writings, drawings,
models, data, and tools, whether in LICENSEE’s possession or in the possession
of any past or present employee, agent or Independent Contractor who received
the information through LICENSEE.  Proof
of such return or destruction shall be certified by an officer of LICENSEE and
promptly provided to 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,
at its sole option, 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 Intellectual Property
Rights, Licensed Products, Development Tools and/or either party.  LICENSEE shall not market, distribute, or
sell the Game and/or Game Discs in any country in the Territory in which such
marketing, distribution or sale would violate any applicable laws, regulations
or orders of such country.


 


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


 


14.3         Records and Audit.  During the Term and for a period of two
(2) years thereafter, LICENSEE agrees to keep accurate, complete and
detailed records relating to the use of the Confidential Information, the
Development Tools and the Intellectual Property Rights.  Upon at least fifteen (15) days prior
written Notice to LICENSEE, NINTENDO may, at its expense and subject to a
confidentiality agreement, arrange for a third-party audit of LICENSEE’s
records, reports and other information solely related to LICENSEE’s compliance
with this Agreement; provided, however, that NINTENDO shall not, during the
course of the audit, access LICENSEE’s source code, development plans,
marketing plans, internal business plans or other items deemed confidential by
LICENSEE, except to the extent such materials incorporate, disclose or
reference NINTENDO’s Confidential Information or Intellectual Property Rights.


 


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


 


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


 


14.6         Governing Law and Venue.  This Agreement shall be governed by the laws
of Japan, without regard to its conflict of laws principles.  Any legal actions (including judicial and
administrative 


 


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proceedings) with
respect to any matter arising under or growing out of this Agreement, shall be
brought in the Kyoto District Court. 
Each party hereby consents to the jurisdiction and venue of such court
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 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,
which shall together constitute a complete Agreement.  A signature transmitted by facsimile or
electronically via computer network 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.

  	
  THQ INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
    /s/ Satoru Iwata

  	
   

  	
  By:

  	
   /s/ Brian J. Farrell

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Satoru Iwata

  	
   

  	
  Name:

  	
   Brian J. Farrell

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  President

  	
   

  	
  Title:

  	
   President & CEO

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   Mar. 10, 2010

  	
   

  	
  Date:

  	
   Dec. 7, 2009

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  THQ (UK) LIMITED

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Ian Curran

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Printed:

  	
  Ian Curran

  
												



 


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  Title:

  	
  EVP Global Publishing

  
	
   

  	
   

  
	
   

  	
  Date:

  	
  Dec. 4, 2009

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THQ ENTERTAINMENT GmbH

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ian Curran

  
	
   

  	
   

  
	
   

  	
  Printed:

  	
  Ian Curran

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  EVP Global Publishing

  
	
   

  	
   

  
	
   

  	
  Date:

  	
  Dec. 4, 2009

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THQ FRANCE SARL

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ian Curran

  
	
   

  	
   

  
	
   

  	
  Printed:

  	
  Ian Curran

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  EVP Global Publishing

  
	
   

  	
   

  
	
   

  	
  Date:

  	
  Dec. 4, 2009

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THQ ASIA PACIFIC PTY (LTD)

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Martin Good

  
	
   

  	
   

  
	
   

  	
  Printed:

  	
  Martin Good

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  SVP – Asia Pacific

  
	
   

  	
   

  
	
   

  	
  Date:

  	
  4 December 2009

  
	
   

  	
   

  
	
   

  	
   

  
	
  THQ INTERACTIVE ENTERTAINMENT ESPAÑA, SL

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ian Curran

  
	
   

  	
   

  
	
   

  	
  Printed:

  	
  Ian Curran

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  EVP Global Publishing

  
	
   

  	
   

  
	
   

  	
  Date:

  	
  Dec. 4, 2009

  
	
   

  	
   

  
	
   

  	
   

  
	
  THQ
  ITALY SRL

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ian Curran

  
	
   

  	
   

  
	
   

  	
  Name:

  	
  Ian Curran

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  EVP Global Publishing

  
	
   

  	
   

  
	
   

  	
  Date:

  	
  Dec. 4, 2009

  
	
  Attachment:

  	
   

  
	
  Annex A: Guidelines on
  Ethical Content

  	
   

  
						



 


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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.


 


 


 


JEN:hjd


 


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