EXHIBIT
10.1


 


CONFIDENTIAL
PORTIONS OMITTED


 


PATENT LICENSE AGREEMENT


 


This
PATENT LICENSE AGREEMENT (the “Agreement”) is between Digimarc Corporation, a
Delaware Corporation, having a place of business at 9405 SW Gemini Drive,
Beaverton, Oregon 97008 and its Subsidiaries (“Digimarc”), and The Nielsen
Company (US), LLC, a New York limited liability company, having a place of
business at 770 Broadway, New York, New York 10003, its Subsidiaries and Affiliates (“Nielsen”), each of Digimarc and Nielsen referred to
herein as a “Party” and collectively as the “Parties”.


 


Whereas, Nielsen and Digimarc have entered into
an agreement executed on November 27, 2007 with an effective date of October 1,
2007 (the “Prior
Agreement”), said Prior Agreement including terms and conditions under which
Digimarc provided Digimarc Services for Nielsen and granted to Nielsen certain
licenses under Digimarc patents;


 


Whereas, under the Prior Agreement, Nielsen had
certain rights to terminate the Prior Agreement at the end of the second year,
upon the satisfaction of certain conditions;


 


Whereas, for good and valuable consideration,
Nielsen and Digimarc have agreed to expand and extend their relationship and
supersede the Prior Agreement by contemporaneously entering into this Agreement
and the Agreements of Newco 1 LLC and Newco 2 LLC of even date herewith; and


 


Whereas, the Parties wish to supersede said
Prior Agreement and desire that the terms and conditions of this Agreement
shall control with regard to the grant of patent rights and license for the Nielsen
Business, as provided herein.


 


NOW,
THEREFORE, for
good and valuable consideration as stated herein, the Parties hereby agree as
follows.


 


1. Definitions.


 


“Affiliates” shall mean
The Nielsen Company, B.V., a Netherlands Corporation, and the Subsidiaries of
The Nielsen Company, B.V. that are not also a Subsidiary of The Nielsen Company
(US), LLC.


 


“Digimarc
Patents” shall mean all patents (including extensions, reissues,
re-examinations, substitutions, renewals or equivalents of any of the
foregoing, and moral and economic rights of inventors in any of the foregoing),
other than the Excluded Patents, throughout the world, including industrial and
utility models, industrial designs, typeface design patents and registrations,
petty patents, patents of importation, patents of addition, certificates of
invention, and any other indicia of invention ownership issued or granted by
any governmental agency or other authority:


 


(a)           issued or issuing on patent
applications (including all provisional applications, priority, continuations,
divisionals, continuations-in-part and counterparts thereof) entitled to an
effective filing date prior to the Futures Date,


 


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or
claiming priority, directly or indirectly, to a patent or patent application
having an effective filing date prior to the Futures Date; and


 


(b)           under which patents or the patent
applications therefor Digimarc or any of its Subsidiaries has as of the
Effective Date, or thereafter obtains, the right to grant a license to Nielsen
within the scope granted herein, without such grant or the exercise of rights
thereunder resulting in the payment of royalties or other consideration by
Digimarc or its Subsidiaries to third parties (except for payments among
Digimarc and its Subsidiaries, and payments to third parties for inventions
made by said third parties while employed by Digimarc or any of its
Subsidiaries).


 


Digimarc
Patents shall include (other than the Excluded Patents) all patent applications
throughout the world (including all provisional applications, priority,
continuations, divisionals, continuations-in-part and counterparts thereof)
entitled to either an effective filing date prior to the Futures Date, or
claiming priority, directly or indirectly, to a patent or patent application
having an effective filing date prior to the Futures Date, that satisfy part (b) of
this definition, and all patents issuing therefrom (including extensions,
reissues, re-examinations, substitutions, renewals or equivalents of any of the
foregoing), and moral and economic rights of inventors in any of the foregoing.


 


“Effective
Date” of this Agreement is July 1, 2009.


 


“Excluded Patents” means those Digimarc patents
listed in Exhibit A attached hereto.


 


“Futures
Date” is [**].


 


“Nielsen
Business” means the [**].


 


“Sale”,
“sell”, “offer for
sale” “offer to sell”, “other transfer”, “otherwise transfer” and other
forms of such terms with respect to copyrightable materials, such as software
products, shall mean the granting of licenses to use such copyrightable
materials.


 


“Subsidiary” shall mean any
corporation, partnership or other entity (“Entity”) in which Digimarc, The
Nielsen Company (US), LLC or The Nielsen Company, B.V. now or hereafter holds,
directly or indirectly, ownership of, or the right to vote on behalf of, more
than forty percent (40%) of its voting stock or other voting equity or
ownership interests, for so long as such ownership or right to vote exists (excluding the companies being formed
under separate Agreements of Newco 1 LLC and Newco 2 LLC).  An Entity in which Digimarc, The Nielsen
Company (US), LLC or The
Nielsen Company, B.V. owns more than forty percent (40%) of its voting
stock or other voting equity interests but less than a majority of the voting
stock or other voting equity interests, is not considered a Subsidiary under
this definition unless that Entity agrees in a writing to be bound to all
applicable provisions of this Agreement.


 






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2.             License and [**].


 


2.1           Grant to Nielsen.  Subject to
the terms and conditions of this Agreement, Digimarc on behalf of itself and
its Subsidiaries (hereinafter referred to as “Grantor”) hereby grants to
Nielsen, its Subsidiaries and Affiliates (hereinafter individually or
collectively referred to, as the context indicates, as “Grantee”) as of the
Effective Date, a worldwide, non-exclusive, [**], [**] ([**] as set
forth in [**]), irrevocable (except as set forth in Section 5.4) license
under the Digimarc Patents to:


 


(a) 
make (including the
right to use one or more apparatus and practice one or more methods in making),
use (including to provide one or more services and practice one or more methods), have used, import,
have imported, offer to sell, sell, lease, license and otherwise transfer Grantee
product and/or service(s) or any combinations of, enhancements, improvements or
other modifications to such Grantee product or services within the field of the
Nielsen Business; and


 


(b) have Grantee product
and/or services made
(including to have practiced one or more methods for Grantee and have one or
more services provided to or for Grantee) by a third party for the use,
importation, offer for sale, sale, lease, license, and/or other transfer of
such Grantee products and services or any combinations of, enhancements, improvements or
other modifications to such Grantee product or services within the field of the
Nielsen Business.


 


2.2           [**].  Grantor irrevocably [**] Grantee and its and
their respective customers [**], [**], [**] licensed under this Agreement.  The [**] under this Section 2.2 shall be
effective as of the date provided in Section 4.2.


 


2.3           In
the event that Grantor does not have the right to grant a license under any
particular Digimarc Patent of the scope set forth in this Section 2, then
the license granted herein under said Digimarc Patent shall be of the broadest
scope which Grantor has the right to grant within the scope set forth above.


 


2.4           This
license [**] to Nielsen is subject to previously exclusively licensed patent
grants by Digimarc limited to the following fields of use, which are not
licensed to Nielsen [**] the same:


 


2.4.1        domestic
or international: driver licenses, passports, national, federal, state or local
government identity cards and any other national, federal, state or local
government issued credentials; and


 


2.4.2        deterring
the unauthorized digital reproduction of banknotes.


 


2.5           No implied licenses.  Nothing contained in this Agreement will be construed as conferring by
implication, estoppel or otherwise, any license or other right under any patent
rights or other industrial or intellectual property rights of either Party,
except for the license expressly granted herein.


 






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2.6           If
a third party has the right to grant licenses under one or more patents to
Nielsen (as a “Licensee”) within the field of the Nielsen Business with the
consent of Digimarc hereto, Digimarc shall provide said third party with any
consent required to enable said third party to license said Licensee on whatever
terms such third party may deem appropriate. 
Digimarc hereby waives any right it may have to receive royalties or
other consideration from said third party as a result of said third party’s so licensing
said Licensee within the scope of the license granted under this Agreement.


 


3.             Consideration.


 


3.1           Consideration
Exchanged.  The consideration for the
patent license [**] in this Agreement includes: (i) the agreement by
Nielsen to pay to Digimarc a total of eighteen million seven hundred fifty thousand
United States dollars (US$18,750,000.00) in Section 3.2; (ii) Nielsen’s
[**] as set forth in the [**] of [**] and [**]; (iii) the minimum service
fees to be paid to Digimarc under the Agreements of Newco 1 LLC and Newco 2
LLC; and (iv) the consideration paid by Nielsen to Digimarc under the
Prior Agreement.


 


3.2           Royalties.  Nielsen shall pay to
Digimarc eighteen million seven hundred fifty thousand United States dollars
(US$18,750,000.00) in
royalties with payment spread out as follows:


 


2009 (remaining):  Two million United States dollars
(US$2,000,000.00);


2010:  Three Million Six Hundred Thousand United
States dollars (US$3,600,000.00);


2011:  Four Million United States dollars
(US$4,000,000.00);


2012:  Four Million United States dollars
(US$4,000,000.00);


2013:  Four Million United States dollars
(US$4,000,000.00); and


2014:  One Million One Hundred Fifty Thousand United
States dollars (US$1,150,000.00).


 


3.3           Royalty Payment Schedule.  The payments for 2009 shall be $1 million due
by July 10, 2009, and $1 million due by October 1, 2009.   The payments for 2010 shall be in quarterly
installments of $900,000 due by the first business day of each calendar
quarter.  The payments for 2011-13 shall
be in quarterly installments of $1M due by the first business day of each
calendar quarter.  The $1.15
million payment for 2014 shall be due by January 2, 2014.


 


3.4           Overdue
Amounts.  Digimarc can
terminate this Agreement for overdue payment obligations of Nielsen, subject to the Breach and cure provisions of Section 5.2
and 5.3.  In addition, Digimarc will be
entitled to charge, and Nielsen will pay, interest on any overdue amounts or
underpayments under this Agreement at the rate of one percent (1%) per month
(or part thereof), or at such lower rate as may be the maximum rate allowed
under applicable law.


 






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4.             Term.


 


4.1           Agreement.  The term of this Agreement and the term of
the license granted herein shall commence on the Effective Date and continue
until the expiration of the last to expire of the Digimarc Patents licensed
hereunder, unless earlier terminated in accordance with this Agreement.


 


4.2           [**].  The [**] granted by Digimarc to Nielsen under
Section 2.2 of this Agreement is effective upon [**].  Once effective, such [**] is irrevocable and will
survive any termination or expiration of this Agreement or any termination or
expiration [**] under this Agreement.


 


5.             Termination
and Remedies.


 


5.1           Responsibility for Performance.  The Nielsen Company (US), LLC shall be solely
responsible for its performance under this Agreement.  A Breach of this Agreement by a Subsidiary or
by an Affiliate shall be deemed to be a Breach of this Agreement by The Nielsen
Company (US), LLC, except as provided under Section 5.4(i).


 


5.2           Remedies for Breach.  If either Party materially breaches this
Agreement, becomes insolvent or files or has filed against it a petition in
bankruptcy (“Breach”) (subject to the cure provisions of Section 5.3), the
non-Breaching Party may, in addition to other remedies at law and in equity,
terminate this Agreement to the extent permitted by law.


 


5.3           Cure.       Prior to terminating this Agreement for Breach, the Party not
in Breach must first give the Party in Breach written notice specifying in
detail the alleged Breach.  Such termination will be effective
seventy five (75) days after such written notice (the “Notice/Cure Period”) if
the Breach remains uncured.


 


5.4           Termination by Digimarc.  Subject to Section 5.3,
Digimarc can terminate this Agreement, including the license granted under this
Agreement: (i) as to the Nielsen Company (US), LLC, The Nielsen Company, B.V. or any one or
more applicable Nielsen Affiliates or Nielsen Subsidiaries licensed under this
Agreement that files an action challenging the validity or enforceability of
any Digimarc Patent licensed hereunder; except as a defense or counterclaim
(including a declaratory judgment action) to a threat of, or an action for,
infringement brought by Digimarc or its assigns against such licensee; or (ii) 
as to Nielsen in the event of a Breach by Nielsen resulting from non-payment of
a payment obligation under Section 3.


 


If the Breach under this Section 5.4(i) or
5.4(ii) remains uncured upon expiration of the Notice/Cure Period, any
such termination will be effective immediately upon such expiration.


 






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5.5           The parties agree that
notwithstanding any inference that could be drawn either from this Agreement, or
any reference in this Agreement to the Agreements of Newco 1 LLC or Newco 2 LLC (including but not limited to references
to the consideration exchanged under Section 3.1), under no circumstances
may any expiration, termination, rescission, breach, default or violation of
the Agreements of Newco 1 LLC or Newco 2 LLC provide a basis for any claim of a Breach,
default, failure or violation of this Agreement or otherwise cause the
termination or rescission of this Agreement or the termination or revocation of
any of the rights and license granted hereunder.


 


5.6           Effects of Termination.  Termination of this Agreement in accordance
with Section 5.4 as to the applicable licensee(s) licensed under this
Agreement (the Nielsen Company (US), LLC; The Nielsen Company, B.V.; or any one or
more applicable Nielsen Affiliates or Nielsen Subsidiaries) also terminates the
license [**] granted under Section 2 as to such licensee(s).  In the event of such termination of this
Agreement and such license [**] as to one or more of such licensees, [**].  In other words, in the event of such termination,
[**] and Digimarc
will not be barred from [**].  [**], [**].


 


6.             Other Provisions.


 


6.1           Securities Disclosures and Public Announcements.  Disclosure of a potential restructuring of
the Digimarc-Nielsen agreement or other future businesses or business concepts
discussed or agreed between the Parties, the financial impact of this Agreement
and related transactions upon Parties, and of the terms of this Agreement (both
in summary form and through an exhibit filing) may be required under SEC
regulations, stock market rules or any other laws.  Members may rely in good faith on advice of
counsel when determining whether such disclosure is required.  If a Party reasonably believes (such as by
relying in good faith on the advice of its counsel) that it is subject to such
a disclosure under SEC regulations or laws, prior to disclosing such
information, such Party will provide the other Party with reasonable prior
notice for the other Party to seek a protective order or for redaction of the
information and will only disclose that information that is necessary and
required.  Except for a disclosure in
accordance with either this Section 6.1 or Section 6.2, neither Party
will make public announcements, disclosures, or issue press releases relating
to this Agreement without the prior written consent of the other Party, which
consent or refusal will not be unreasonably withheld.


 


6.2           Confidentiality. 
Subject to Section 6.1, each Party agrees that it will treat any
provision of this Agreement not required to be publicly disclosed as
confidential and will handle the Agreement in a manner consistent with the
policies and practices of that Party for handling its own confidential
information and in no case with less than a reasonable standard of care.  Notwithstanding the foregoing, either Party
may provide a copy of this Agreement to a third party considering in good faith
a bona fide transaction as contemplated in Section 6.3, provided that such
third party agrees in writing to be bound to a confidentiality agreement
customary to such transactions and prohibiting use


 






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of its knowledge of this
Agreement or its provisions for any competitive purpose.  If the entire Agreement is terminated, the
obligations set out in this Section will extend for a period of [**] years
from this termination date.


 


6.3           Assignment, Acquisitions and
Transfers.


 


6.3.1        Assignment.  Digimarc may assign any right under any
Digimarc Patent(s) to a third party as long as the assignment is made
subject to the terms of this Agreement. 
Except as in the prior sentence, neither Party may
assign or grant any of its rights or obligations under this Agreement to any
person without the prior written consent of the other, and any such purported assignment shall
be null and void from inception; provided, however, that (a) either Party
may assign all its rights and delegate all its obligations hereunder to a
single entity without such consent in connection with: (i) a merger,
consolidation, reorganization, statutory conversion, amalgamation or similar
corporate transaction, or (ii) a sale or other disposition of all or
substantially all of its assets in the businesses relating to this Agreement
(including, in the case of Digimarc, a sale of all or substantially all of its
patent assets), and (b) Nielsen may assign all its rights and delegate all
its responsibilities without such consent in connection with a restructuring or
reorganization of Nielsen, including without limitation to a Subsidiary or
Affiliate of The Nielsen Company (US), LLC.


 


6.3.1.1     In the event that Digimarc assigns this
Agreement (including an assignment of all its rights and delegation of all its
obligations hereunder) to [**] in accordance with Section 6.3.1 such that
Digimarc [**], Digimarc [**] may, upon prior written notice to Nielsen, limit, the
rights and license granted to patent applications that are part of the
definition of Digimarc Patents in this Agreement to include [**] (including, continuations,
divisionals and continuations-in-part) [**].


 


6.3.2.       Acquisitions.        If, after the Effective Date, Nielsen
either acquires an entity or acquires substantially all of the assets from an
entity and said entity is, immediately prior to the date of acquisition,
licensed under one or more Digimarc patents through an existing agreement
pursuant to which royalties or other payments are an obligation of said entity
to Digimarc:


 


(i) if such entity survives said acquisition, the
license and other rights granted to said entity or through the use of said
assets and for all such products or services before the acquisition, [**] and
such royalties or other payments [**] the remaining term of and as provided
under said existing agreement [**] such products are manufactured or services
are provided by said entity;


 


(ii) if such entity is merged into or otherwise
does not survive said acquisition and at the time of said merger or acquisition
the products or services of such entity are not within the scope of the rights
and licenses granted to Nielsen under this Agreement, the license and other
rights granted to said entity or through the use of said assets and for all
such licensed products or services before the merger or acquisition, [**] and
such


 






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royalties or other payments [**] the remaining term of and as
provided under said existing agreement [**] such licensed products or services
are provided by Nielsen; and


 


(iii) if such entity is merged into or otherwise
does not survive said acquisition and at the time of said merger or acquisition
the products or services of such entity are within the scope of the rights and
licenses granted to Nielsen under this Agreement, the license and other rights
granted to said entity or through the use of said assets and for all such
licensed products or services before the merger or acquisition, [**] and such
royalties or other payments [**] the remaining term [**] agreement [**] such
products or services are provided by Nielsen; provided that if the products or
services of such entity are completely within the scope of the license granted
to Nielsen under this Agreement, [**] after the time of said merger or
acquisition [**] such license and rights under such existing agreement [**]
immediately prior to the time of said merger or acquisition.


 


6.3.3.       Transfer
of a Product or Service.  If,
subsequent to the Effective Date, Nielsen or any of its Subsidiaries or
Affiliates (the “Transferring Party”)


 


either: (i) transfers a
product or service line to a third party without transferring a Subsidiary or
Affiliate to said third party; or (ii) spins off a Subsidiary or Affiliate
(either by disposing of it to a third party or in some other manner reducing
ownership or control so that the spun-off entity is no longer a Subsidiary or
Affiliate of the Transferring Party); and


 


if such transfer or spin off
includes: (i) at least [**] or [**] in a [**] or [**]; and (ii) tangible
assets having a value of at least [**] U.S. dollars (US$[**]),


 


then after written request
to Digimarc jointly by the Transferring Party and either: (i) such third
party in the case of a transfer; or (ii) such ex-Subsidiary or
ex-Affiliate in the case of a spin off; and


 


where, in either case, such
request is within ninety (90) days following the transfer or spin off,


 


Digimarc shall grant a
license (under the same terms as the license granted to the Transferring Party
herein but without further consideration by Nielsen above that required under Section 3,
the Transferring Party, or the spun-off entity) under the Digimarc Patents for
the field of [**] such third party or such ex-Subsidiary or ex-Affiliate (the “Recipient”),
provided that:


 


(a)           such field shall not be defined [**]
than the scope of [**] to the [**], nor [**] the [**] being transferred or spun
off;


 


(b)           the license granted shall be limited
in the [**] immediately following such transfer or spin off to a volume of
licensed products or services having an aggregate selling price equal to no
more than the aggregate selling prices of such products or services by said
Transferring Party in the [**] preceding such transfer or spin off plus [**];
and shall be limited, in each of the successive [**] periods following such
transfer or spin off, to a volume of licensed products or services having an
aggregate selling price equal to [**] the [**] for the [**] period plus [**];


 


(c)           this
Section 6.3.3 and Section 3 (Consideration) shall be omitted from the
license granted to the Recipient; and


 






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(d)           the
license granted to the Recipient shall [**] if the license [**] to the [**] or [**]
for any reason.


 


6.4           Bankruptcy.  Any intellectual property
licenses and rights granted hereunder or pursuant hereto are, and will be
deemed to be, for purposes of Section 365(n) of the United States
Bankruptcy Code (“Code”) licenses of “intellectual property”, as defined under
the Code.  Notwithstanding any provision
contained herein to the contrary, if a Party is under any proceeding under the
Code and the trustee in bankruptcy of that Party, or that Party as a debtor in
possession, rightfully elects to reject this Agreement, then the other Party
pursuant to the relevant portions of Section 365(n) of the Code may
retain any and all of such other Party’s licenses and rights hereunder to the
maximum extent permitted by law.


 


6.5           Remedies.


 


6.5.1 Remedies under the Agreement.  NONE OF DIGIMARC, NIELSEN, NOR ITS OR THEIR
SUBSIDIARIES OR AFFILATES WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, EXEMPLARY, RELIANCE, PUNITIVE OR SPECIAL DAMAGES ARISING UNDER
THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  In the event of termination of the Agreement and
the license granted hereunder in accordance with Section 5.4 as to the
Nielsen Company (US), LLC, The Nielsen Company, B.V. or any one or more
applicable Nielsen Affiliates or Nielsen Subsidiaries, Digimarc shall be
entitled to any and all remedies against such terminated licensee for patent
infringement in the US or abroad, including the remedies identified in 6.5.2.


 


6.5.2        Infringement Remedies.  Nothing in
this Agreement prevents Digimarc, the Nielsen Company (US), LLC, The Nielsen Company, B.V. or any one or
more applicable Nielsen Affiliates or Nielsen Subsidiaries licensed under this
Agreement from seeking any available remedies under patent law for any patent
infringement by another party to this Agreement in periods when that other
party does not have a license, release or non-assert covenant for that
activity, including any remedies available under 35 U.S.C. 281, 283, 284 and
285.


 


6.5.3        Tolling.  Nielsen agrees to toll any statute of
limitations and any time limitation on damages under [**] relative to [**].  In return for this tolling agreement,
Digimarc on behalf of itself, its Subsidiaries, licensees, and assigns, covenants
not to [**]. [**].


 


6.6           Governing Law, Jurisdiction and
Venue.  This Agreement shall be
governed by New York law.  Effective as
of the termination of the Agreement as provided under Section 5.4 as to  Nielsen Company (US), LLC, The Nielsen Company, B.V. or any one or
more applicable Nielsen Affiliates or Nielsen Subsidiaries licensed under this
Agreement, Digimarc may seek judgment and remedies for alleged infringement of
its patents for periods
when such licensee does not have a license, release


 






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or non-assert covenant
for that activity, in any forum where jurisdiction and venue are generally
proper, including the United States International Trade Commission or
Government Customs Service proceedings, for alleged infringement occurring
before January 1, 2008 and after such Agreement termination date.  All other matters concerning the interpretation
of or performance under, this Agreement will be resolved in the state or
federal courts in New York applying New York law and jurisdiction and venue
will be proper in such New York courts.


 


6.7           Assertion and Defense of Patents.  All defense and litigation of Digimarc
Patents will remain the sole responsibility and expense of Digimarc.  Digimarc has no duty to enforce any Digimarc
Patents.


 


6.8           No Waiver.  Each and all of the various rights, powers
and remedies of the Parties will be considered to be cumulative with and in
addition to any other rights, powers and remedies which such Parties may have
at law or in equity in the event of Breach of any of the terms of this
Agreement.  The exercise or partial exercises
of any rights, powers or remedies will neither constitute the exclusive
election thereof nor the waiver of any other right, power or remedy available
to such Party.  In no event will any
waiver of any rights hereunder constitute the waiver of such rights in any
future instance unless the waiver so specifies in writing.


 


6.9           Notices.  All notices including those alleging Breach
or early termination must be made in writing. 
Any written notice under this Agreement may be sent by e-mail provided
that in any event to be followed (or alternatively) by a hard copy sent via
certified mail, return receipt requested, or by recognized courier service with
tracking capabilities.  The notice will
be deemed effective as of the earlier of (i) the date of delivery, as
evidenced by a delivery receipt or the addressee’s registry, or (ii) five
business days after sending notice to the correct address in the authorized
manner.  The addresses of the Parties, as
set forth above, will be used for any such notice unless either Party hereafter
designates a substitute address in writing in accordance with this provision.


 


The
contacts to address the notices to are:


 


For
Digimarc: Bruce Davis, CEO; with a co-copy to: Robert Chamness, Chief Legal
Officer and Secretary; and


 


For
Nielsen: Itzhak Fisher, Global Product Leadership; with a co-copy to: Chief
Legal Officer.


 


6.10         Integration.  This Agreement embodies the entire agreement of the
Parties hereto regarding the subject matter herein, and supersedes all previous
negotiations, agreements or commitments with respect to them, including without
limitation the terms and conditions under the
Prior Agreement (including all payment obligations of Nielsen after the
Effective Date); provided, however, if any patent licensed under
the definition of


 


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Digimarc Patents in the Prior Agreement is not licensed
under the definition of Digimarc Patents in this Agreement, such patent shall
be licensed (at no additional cost to Nielsen beyond that required under Section 3
of this Agreement) under this Agreement.


 


6.11         Severability.  If any provision of this Agreement is held to
be void or unenforceable, the Parties agree that such determination will not
result in the nullity or unenforceability of the remaining portions of this
Agreement.  The Parties further agree to
replace such void or unenforceable provisions of this Agreement with valid and
enforceable provisions that will achieve, to the extent legally permissible,
the economic, business and other purposes of the void or unenforceable
provisions and that reflect the intent of the Parties when entering into this
Agreement.


 


6.12         Amendments.  This Agreement may not be modified in any
manner except by an instrument in writing duly signed by each of the Parties
hereto.


 


6.13         Construction.  The headings of sections are inserted for convenience
of reference only and are not intended to be a part of or to affect the meaning
or interpretation of this Agreement.  Each Party and
its counsel have participated fully in the review and revision of this
Agreement.  Any rule or construction
to the effect that ambiguities are to be resolved against the drafting Party
will not apply in interpreting this Agreement.


 


6.14         Other Documents.  Each Party hereto will execute any documents
which may be necessary or advisable to carry out or effectuate the foregoing.


 


6.15         Survival.  Any rights and obligations which by their
nature (or explicit statement) survive and continue after any expiration or
termination of this Agreement will survive and continue and will bind the
Parties and their successors and assigns. 
For avoidance of doubt, upon any expiration or termination of this
Agreement, the provisions of Sections 3, 5.1, 5.5, 5.6 and 6 will survive and
remain in effect.


 


6.16     Representations
and Warranties.


 


6.16.1      Digimarc
represents and warrants:


 


(a)           that it has and will have the full right and power to
grant the rights, license [**] set forth in this Agreement on behalf of itself
and its Subsidiaries, and that there are no outstanding agreements, assignments
or encumbrances inconsistent with the provisions of such rights, license [**]
or with any other provision of this Agreement; and


 


(b)           that as of the Effective Date, it has no Subsidiaries.


 


6.16.2  Nielsen
represents and warrants that there are no outstanding agreements, assignments
or encumbrances inconsistent with the provisions of this Agreement.


 


6.16.3      Each
Party represents that it has the authority to enter into this Agreement.


 






** CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.


 


11

















 


6.16.4      Except
as expressly stated in this Agreement, neither Party makes any other
representation or warranty, express or implied.


 


6.17         Counterparts.  This Agreement may be executed in separate
counterparts, and by facsimile, each of which will be deemed an original, and
when executed, separately or together, will constitute a single original
instrument, effective in the same manner as if the Parties had executed one and
the same instrument.


 


12

















 


	
   

  	
  DIGIMARC CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce Davis

  
	
   

  	
   

  	
  Name:

  	
  Bruce Davis

  
	
   

  	
   

  	
  Its:

  	
  Chairman and Chief
  Executive Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  THE NIELSEN COMPANY
  (US) LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Itzhak Fisher

  
	
   

  	
   

  	
  Name:

  	
  Itzhak Fisher

  
	
   

  	
   

  	
  Its:

  	
  Global Product
  Leadership

  
	
   

  	
   

  
	
   

  	
  Date: June 11, 2009

  



 


13

















 


Exhibit A


 


Excluded Patents


 


	
  Patent No.

  	
   

  	
  Title

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  USPN [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  USPN [**] (a continuation of USPN [**])

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  USPN [**]

  	
   

  	
  [**]

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  USPN
  [**]

  	
   

  	
  [**]

  	
   

  



 


and any reissues, continuations,
continuations-in-part, divisionals, extensions, re-examinations, substitutions,
renewals and foreign counterparts and equivalents of those patents.


 






** CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.


 


14