Exhibit
10.61


[***]
DENOTES CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT


	
  April 4, 2005

  	
  CONFIDENTIAL

  



 


LICENSE
AGREEMENT FOR THE NINTENDO DS SYSTEM

(EEA, AUSTRALIA AND NEW ZEALAND)


THIS LICENSE AGREEMENT (“Agreement”) is entered into
between NINTENDO CO., LTD. (“NINTENDO”) at 11-1 Kamitoba Hokotate-cho,
Minami-ku, Kyoto, Japan 601-8501, Attn: General Manager, International Business
Administration Department (Fax: 81.75.662.9619), and ACTIVISION, INC., a
corporation of Delaware, and its subsidiaries (and Activision Publishing, Inc.,
a corporation of Delaware, Activision UK, Ltd., a limited company of the United
Kingdom; ATVI France, S.A.S., a corporation of France; Activision GmbH, a
corporation of Germany, and Activision Pty., Ltd., a limited company of
Australia) (jointly and severally “LICENSEE”) at 3100 Ocean Park Blvd., Santa
Monica, CA 90405, Attn: Mr. George Rose (Fax: 310.255.2152).  NINTENDO and LICENSEE agree as follows:


1.             RECITALS


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


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


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


2.             DEFINITIONS


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


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


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


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


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


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


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


2.8           “Guidelines” means the
current version or any future revision of the “Nintendo DS Guidelines”,
pertaining to layout, trademark usage and other requirements for the Game Card
label, instruction manual and Game Card packaging; “Marketing Materials”; “Nintendo
DS Development Manual”; “Guidelines on Ethical Content”; “Nintendo DS Software
Submission Requirements” together with related guidelines that NINTENDO may
provide to LICENSEE from time to time. 
The Guidelines on Ethical Content are attached as Annex A, and the
remainder of the Guidelines have been provided



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to LICENSEE independent of this Agreement.  The Guidelines may be changed or updated from
time to time without notice, and the versions current from time to time will be
available on request from NINTENDO.


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


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


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


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


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


2.14         “Notice” means any notice
permitted or required under this Agreement. All Notices shall be sufficiently
given when (a) personally served or delivered, (b) transmitted by facsimile,
with an original sent concurrently by mail, or (c) deposited, postage prepaid,
with a guaranteed air courier service, in each case addressed as stated herein,
or addressed to such other person or address either party may designate in a
Notice. Notice shall be deemed effective upon the earlier of actual receipt or
two (2) business days after transmittal.


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


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


2.17         “Proprietary Rights”
means any rights or applications for rights to the extent recognized anywhere
in the Territory relating to the Nintendo DS System, and owned, licensed or
otherwise held in patents, trademarks, service marks, copyrights and
neighboring rights, semiconductor chip layouts or masks, trade secrets, utility
models, registered design rights, unregistered design rights, database rights,
get up, trade dress, moral rights and publicity rights, together with all
inventions, discoveries, ideas, know-how, data, information processes, methods,
procedures, formulas, drawings and designs, computer programs, software source
code and object code, and all amendments, modifications, and improvements
thereto for which such patent, trademark,



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service mark, copyright and neighboring rights, semiconductor chip
layouts or mask, trade secrets, utility models, registered design rights,
unregistered design rights, database rights, get up, trade dress, moral rights
or publicity rights may exist or may be sought and obtained in the future.


2.18         “Reverse Engineer(ing)”
means, without limitation, [***] or (c) any other technique designed to extract
source code or facilitate the duplication of a program or product.


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


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


2.21         “Term” means three years
from the Effective Date.


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


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


3.             GRANT OF LICENSE;
LICENSEE RESTRICTIONS


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


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


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


(a)           grant access to,
distribute, transmit or broadcast a Game by electronic means or by any other
means known or hereafter devised, including, without limitation, by wireless,
cable, fiber optic, telephone lines, microwave, radiowave, computer or other
device network, except (a) as a part of wireless game play on and among
Nintendo DS systems, (b) for the purpose of facilitating game development under
the terms of this Agreement, or (c) as otherwise approved in writing by
NINTENDO.  LICENSEE shall use reasonable
security measures, customary within the high technology industry, to reduce the
risk of unauthorized interception or retransmission of any Game
transmission.  No right of retransmission
shall attach to any authorized transmission of a Game,


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



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


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


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


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


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


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


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


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


4.             SUBMISSION OF GAME
AND ARTWORK FOR APPROVAL


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



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


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


4.4           Submission of
Artwork.  Upon submission of a
completed Game to NINTENDO, LICENSEE shall prepare and submit to NINTENDO the
Artwork for the proposed Licensed Product. 
Within ten (10) business days of receipt, NINTENDO shall approve or
disapprove the Artwork.  If any Artwork
is disapproved, NINTENDO shall specify in writing the reasons for such
disapproval and state what corrections or improvements are necessary.  After making the necessary corrections or
improvements, LICENSEE shall submit revised Artwork to NINTENDO for
approval.  NINTENDO shall not
unreasonably withhold or delay its approval of any Artwork.  The approval of the Artwork by NINTENDO shall
not relieve LICENSEE of its sole responsibility for the development and quality
of the Artwork or in any way create any warranty for the Artwork or any
Licensed Product by NINTENDO.


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


5.             ORDER PROCESS,
PURCHASE PRICE, PAYMENT AND DELIVERY


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


5.2           Purchase Price and
Minimum Order Quantities.  The
purchase price and minimum order quantities for Finished Products and Bulk
Goods shall be set forth in NINTENDO’s then current Price Schedule.  The purchase price includes the cost of
manufacturing the Licensed Products.  No
taxes, duties, import fees or other tariffs related to the development,
manufacture, import, marketing or sale of the Licensed Products are included in
the purchase price and all such taxes are the



 5
 








responsibility of LICENSEE (except for taxes imposed
on NINTENDO’s income).  The Price
Schedule is subject to change by NINTENDO at any time, provided, however, that
any price increase shall be applicable only to purchase orders submitted, paid
for, and accepted by NINTENDO after the effective date of the price increase.


5.3           Payment.  Upon placement of an order with NINTENDO,
LICENSEE shall pay the full purchase price to NINTENDO either (a) by placement
of an irrevocable letter of credit in favor of NINTENDO 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 NINTENDO’s
designated account.  All associated
banking charges are the responsibility of the LICENSEE.


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


6.             MANUFACTURE OF THE
LICENSED PRODUCT


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


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


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


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


6.5           Sample Printed
Materials and Bulk Goods.  Within a
reasonable period of time after LICENSEE’s assembly of the initial order for a
Bulk Goods title, LICENSEE shall provide NINTENDO with (a) one (1) sample of
the fully assembled, Licensed Product, and (b) five (5) samples of LICENSEE
produced Printed Materials for such Licensed Product.


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


7.             MARKETING AND
ADVERTISING


7.1           Approval of
Marketing Materials.  LICENSEE
represents and warrants that the Marketing Materials shall (a) be of high
quality and comply with the Guidelines as well as the



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guidelines of the PEGI, and (b) comply with all
applicable laws, regulations and official codes of practice in those
jurisdictions in the Territory where they will be used or distributed.  All LICENSEE controlled websites featuring
the Games shall adopt a privacy policy that complies with all applicable local
laws, regulations and official guidelines. 
To protect NINTENDO’s valuable Intellectual Property Rights, to prevent
the dilution of NINTENDO’s trade marks, and to avoid use of the licensed
Intellectual Property Rights giving rise to any implication of NINTENDO’s
sponsorship, association, approval or endorsement where this is not the case,
prior to actual use or distribution, LICENSEE shall submit to NINTENDO for
review samples of all proposed Marketing Materials.  NINTENDO shall, within ten (10) business days
of receipt, approve or disapprove the quality of such samples.  If any of the samples are disapproved,
NINTENDO shall specify the reasons for such disapproval and state what
corrections and/or improvements are necessary. 
After making the necessary corrections and/or improvements, LICENSEE
shall submit revised samples for approval by NINTENDO.  No Marketing Materials shall be used or
distributed by LICENSEE without NINTENDO’s prior written approval. NINTENDO
shall not unreasonably withhold or delay its approval of any proposed Marketing
Materials.


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


7.3           Warranty and Repair.  LICENSEE shall provide the original consumer
with a minimum one hundred eighty (180) 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.


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


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


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


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, NINTENDO may (a) insert in the
Printed Materials for the Licensed Products promotional materials concerning
publications and promotions for such video game products, (b) utilize screen
shots, Artwork and information regarding the Licensed Products in all NINTENDO
published or officially licensed magazines, official NINTENDO-sponsored web
sites, or other advertising, promotional or marketing media that promotes such
video game products, services or programs, and (c) exercise public performance
rights in the Games and use related trademarks and Artwork in connection with
NINTENDO sponsored contests, tours, conventions, trade shows, press briefings
and similar events that promote such video game products.


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



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8.             CONFIDENTIAL
INFORMATION


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


8.2           Disclosures Required
by Law.  LICENSEE shall be permitted
to disclose Confidential Information if such disclosure is required by an
authorized governmental or judicial entity, provided that NINTENDO is given
Notice thereof at least thirty (30) days prior to such disclosure, or such
lesser period as may be needed to comply with such requirement.  LICENSEE shall use its best efforts to limit
the disclosure to the greatest extent possible, consistent with LICENSEE’s
legal obligations, and if required by NINTENDO, shall cooperate in the
preparation and entry of appropriate court orders limiting the persons to whom
Confidential Information may be disclosed and the extent of disclosure of such
Confidential Information.


8.3           Disclosure and Use.  NINTENDO may provide LICENSEE with highly
confidential development information, Guidelines, Development Tools, systems,
specifications and related resources and information constituting and
incorporating the Confidential Information to assist LICENSEE in the
development of Games.  LICENSEE agrees to
maintain all Confidential Information as strictly confidential and to use such
Confidential Information only in accordance with this Agreement.  LICENSEE shall limit access to the
Confidential information to LICENSEE’s employees having a strict need to know
and shall advise such employees of their obligation of confidentiality as
provided herein.  LICENSEE shall require
each such employee to retain in confidence the Confidential Information
pursuant to a written non-disclosure agreement between LICENSEE and such
employee.  LICENSEE shall use its best
efforts to ensure that its employees working with or otherwise having access to
Confidential Information shall not disclose or make any unauthorized use of the
Confidential Information.


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


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.  Also, in such case LICENSEE
shall provide to NINTENDO on a continuing basis a listing of all Independent
Contractors who have received or been granted access to Confidential
Information along with copies of the applicable written non-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 efforts to ensure that its
employees and Independent Contractors working with or otherwise having access
to Confidential Information shall not disclose or



 8
 








make unauthorised 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, its employees and Independent Contractors.


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


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


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


9.             REPRESENTATIONS
AND WARRANTIES


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


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


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


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


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


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



 9
 








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


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


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


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


10.          INDEMNIFICATION


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


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


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


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





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


NINTENDO and LICENSEE shall give prompt Notice to the
other of any indemnified claim under this Section 10.1.  With respect to any third party claim subject
to this indemnity clause, LICENSEE, as indemnifying party, shall have the right
to select counsel and to control the defense and/or settlement thereof.  NINTENDO may, at its own expense, participate
in such action or proceeding with counsel of its own choice.  LICENSEE shall not enter into any settlement
of any such claim in which (i) NINTENDO has been named as a party, or (ii)
claims relating to the Intellectual



 10
 








Property Rights have been asserted, without NINTENDO’s
prior written consent.  NINTENDO shall
provide reasonable assistance to LICENSEE in its defense of any such claim.


10.2         LICENSEE’s Insurance.  LICENSEE shall, at its own expense, obtain a
commercial general liability insurance policy (including coverage for
advertising injury and product liability claims) from an insurance company.
Such policy of insurance shall be in an amount of not less than the equivalent
of [***] on a per occurrence basis (not claims made) and shall provide for
adequate protection against any suits, claims, loss or damage arising out of or
relating to the Licensed Products. Such policy shall name NINTENDO as an
additional insured and shall specify that 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 60 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, NINTENDO, in its sole discretion may: (a)
terminate this Agreement in accordance with Section 13.2 herein; or (b) secure
comparable insurance for the benefit of NINTENDO only, and not for LICENSEE, at
LICENSEE’s expense.


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


11.          PROTECTION OF
PROPRIETARY RIGHTS


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


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


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


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



 11
 








LICENSEE if LICENSEE is a corporation, and (a) 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 Assignment and the nature and
extent of the rights and obligations that LICENSEE proposes to assign.  NINTENDO may, in its sole discretion, approve
or disapprove such proposed Assignment. 
Unless written consent is given by NINTENDO to a proposed Assignment,
any attempted or purported Assignment shall be deemed disapproved and NINTENDO
shall have the unqualified right, in its sole discretion, to terminate this
Agreement at any time.  Upon termination,
NINTENDO shall have no further obligation under this Agreement to LICENSEE or
to LICENSEE’s intended or purported assignee.


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


13.          TERM AND TERMINATION


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


13.2         Default or Breach.  In the event that either party is in default
or commits a breach of this Agreement that is not cured within thirty (30) days
after Notice thereof, then this Agreement shall, except as otherwise provided,
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 (a) the expiration
of this Agreement, (b) its termination other than by LICENSEE’s breach, or (c)
termination of this Agreement by NINTENDO after one hundred twenty days (120)
Notice to LICENSEE in the event NINTENDO reasonably believes that LICENSEE has
developed, marketed, or sold a product that infringes any intellectual property
rights of NINTENDO anywhere in the world (provided that if the parties are able
to resolve such alleged infringement within such 120 day period, such
termination shall not take effect), LICENSEE shall have a period of [***] to
sell any unsold Licensed Products.  All
Licensed Products in LICENSEE’S control following the expiration of such
sell-off period shall be destroyed by LICENSEE within ten (10) days and proof
of such destruction (certified by an officer of LICENSEE) shall be provided to
NINTENDO.


13.5         Termination by
LICENSEE’s Breach.  If this Agreement
is terminated by NINTENDO as a result of a breach of its terms and conditions
by LICENSEE, LICENSEE shall immediately cease



 12
 








all distribution, advertising, marketing or sale of any
Licensed Products.  All Licensed Products
in LICENSEES control as of the date of such termination shall be destroyed by
LICENSEE within ten (10) days and proof of such destruction (certified by an
officer of LICENSEE) shall be provided to NINTENDO.


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


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


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


14.          GENERAL PROVISIONS


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


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


14.3         Records and Audit.  During the Term and for a period of two (2)
years thereafter, LICENSEE agrees to keep accurate, complete and detailed
records related to the development and sale of the Licensed Products and the
Marketing Materials.  Upon reasonable
Notice to LICENSEE, NINTENDO may, at its expense, arrange for a third party
audit of LICENSEE’s records, reports and other information related to LICENSEE’s
compliance with this Agreement.


14.4         Waiver, Severability,
Integration, and Amendment.  The
failure of a party to enforce any provision of this Agreement shall not be
construed to be a waiver of such provision or of the right of such party to
thereafter enforce such provision.  In
the event that any term, clause or provision of this Agreement shall be
construed to be or adjudged invalid, void or unenforceable, such term, clause
or provision shall be construed as severed from this Agreement, and the
remaining terms, clauses and provisions shall remain in effect.  Together with the NDA, this Agreement
constitutes the entire



 13
 








agreement between the parties relating to the subject
matter hereof. All prior negotiations, representations, agreements and
understandings are merged into, extinguished by and completely expressed by
this Agreement and the NDA.  Any
amendment to this Agreement shall be in writing, signed by both parties.


14.5         Survival.  In addition to those rights specified
elsewhere in this Agreement that may reasonably be interpreted or construed as
surviving, the rights and obligations set forth in Sections 3, 8, 9, 10, 13 and
14 shall survive any expiration or termination of this Agreement to the degree
necessary to permit their complete 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 action (including
judicial and administrative proceedings) with respect to any matter arising
under or growing out of this Agreement, shall be brought only in the Kyoto
District Court.  Each party hereby
consents to the jurisdiction and venue of such courts for such purposes.


14.7         Injunctive Relief.  LICENSEE acknowledges that in the event of
its breach of this Agreement, 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, that shall together constitute a
complete Agreement.  A signature
transmitted by facsimile shall be considered an original for purposes of this
Agreement.


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


	
  NCL:

  	
  LICENSEE:

  	
   

  
	
   

  	
   

  	
   

  
	
  Nintendo Co., Ltd.

  	
  Activision, Inc.

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ Satoru Iwata

  	
   

  	
  By:

  	
   

  	
  /s/ George Rose

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  George Rose

  	
   

  
	
   

  	
   

  	
  President

  	
   

  	
   

  	
   

  	
  General Counsel

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  June 20, 2006

  	
   

  	
  Date:

  	
   

  	
  April 1, 2006

  	
   

  
										



 



 14
 








 


	
  

  	
  LICENSEE:

  
	
   

  	
   

  
	
   

  	
  Activision Publishing, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ George Rose

  
	
   

  	
   

  	
  George Rose

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
  April 1, 2006

  
	
   

  	
   

  
	
   

  	
  LICENSEE:

  
	
   

  	
   

  
	
   

  	
  Activision UK, Ltd.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ George Rose

  
	
   

  	
   

  	
  George Rose

  
	
   

  	
   

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
  April 1, 2006

  
	
   

  	
   

  
	
   

  	
  LICENSEE:

  
	
   

  	
   

  
	
   

  	
  ACTVI France, S.A.S.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ George Rose

  
	
   

  	
   

  	
  George Rose

  
	
   

  	
   

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
  April 1, 2006

  
	
   

  	
   

  
	
  

  	
  LICENSEE:

  
	
   

  	
   

  
	
   

  	
  Activision GmbH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ George Rose

  
	
   

  	
   

  	
  George Rose

  
	
   

  	
   

  	
  Managing Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
  April 1, 2006

  
	
   

  	
   

  
	
  

  	
  LICENSEE:

  
	
   

  	
   

  
	
   

  	
  Activision Pty, Ltd.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ George Rose

  
	
   

  	
   

  	
  George Rose

  
	
   

  	
   

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
  April 1, 2006

  
						



 


Enclosure:


Annex A - Guidelines on
Ethical Content



 15
 








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



 16