EXHIBIT 10.8.3
[XXXXXX]=CERTAIN INFORMATION IN THIS DOCUMENT HAS BEEN OMITTED PURSUANT TO AN
ORDER GRANTING CONFIDENTIAL TREATMENT ISSUED BY THE SECURITIES AND EXCHANGE
COMMISSION.
SECOND ADDENDUM TO
JOINT DEVELOPMENT AND LICENSE AGREEMENT
THIS SECOND ADDENDUM TO JOINT DEVELOPMENT AND LICENSE AGREEMENT is made as of
the _____ day of February, 1996 (the "Effective Date"), among Nintendo Co., Ltd.
("NCL"), Nintendo of America Inc. ("NOA") (NCL and NOA are referred to
collectively as "Company"), Silicon Graphics, Inc., and MIPS Technologies, Inc.
(collectively referred to as "SGI").
BACKGROUND
Company and SGI are parties to a "Joint Development and License Agreement",
dated August 20, 1993, as supplemented by the "First Addendum to Joint
Development and License Agreement", dated February 5, 1994 (collectively, the
"Agreement"). Company and SGI have agreed to enter into this Second Addendum as
it relates to the joint ownership of certain patent rights, as described herein.
NOW, THEREFORE, the parties hereby agree as follows:
1. DEFINITIONS.
(a) Unless otherwise defined in this Second Addendum, all capitalized words used
in this Second Addendum shall have the meanings set forth in the Agreement.
(b) Section 1.8. "COMPANY PRODUCTS" is hereby revised to add the phrase "and/or
Foreground Technology" immediately after the term "Developed Technology."
(c) Section 1.16, "FILING" is hereby revised to add the phrase "or Foreground
Technology" immediately after the term "Developed Technology."
(d) The last sentence of Section 1.23, "TECHNOLOGY", is hereby revised to read
as follows:
Technology is either Background Technology, Developed Technology or Foreground
Technology.
(e) A new Section 1.26 is hereby added to the Agreement as follows:
1.26 "FOREGROUND TECHNOLOGY" means those inventions listed in Schedule C,
excluding Invention 2, that are covered by a claim of a Patent(s) that issues
directed to the application of elements of the Background Technology to Company
Products (but the claim coverage may be broader than Company Products), which
Patent(s) are based on Filings that the parties mutually agree on in writing.
The parties acknowledge that the inclusion of Background Technology, Developed
Technology or Company Technology in a Foreground Technology Patent claim or
disclosure shall not be interpreted as converting such Background Technology,
Developed Technology or Company Technology into Foreground Technology.
(f) A new Section 1.27 is hereby added to the Agreement as follows:
1.27 "COPROCESSOR COMMAND SET" means (a) the binary instruction formats for
controlling or commanding the signal processor portion of the Coprocessor; and
(b) the binary command formats for controlling or commanding the display
processor portion of the Coprocessor.
(g) A new Section 1.28 is hereby added to the Agreement as follows:
1.28 "MICROCODE/LIBRARIES" means the computer programs developed and delivered
by SGI to Company pursuant to this Agreement, which program(s) are to be
incorporated into each copy of the Packaged Software and executed by the
Coprocessor, and run-time modules of the graphics libraries and audio libraries
and the real-time operating system developed and delivered by SGI to Company
under this Agreement.
(h) A new Section 1.29 is hereby added to the Agreement as follows:
1.29 "PATENT" means letters patent issued under laws of the United States,
reissue patents, divisional patents, reexamination patents, continuations,
continuations-in-part and the foreign counterparts of any of the foregoing.
(i) A new Section 1.30 is hereby added to the Agreement as follows:
1.30 "CROSS LICENSE" means an agreement between either party to this Agreement
and a third party, other than a Licensee, effective prior to the Effective Date
of this Second Addendum. pursuant to which such party and the third party grant
each other licenses to patents developed or acquired during the term of such
agreement, which licenses are granted in settlement of infringement claims.
(j) A new Section 1.31 is hereby added to the Agreement as follows:
1.31 "COPROCESSOR MICROINSTRUCTION SET" means the binary instruction formats
executable by the signal processor portion of the Coprocessor. Binary versions
of the Microcode/Libraries are encoded using the Coprocessor Microinstruction
Set.
(k) A new Section 1.32 is hereby added to the Agreement as follows:
1.32 "COPROCESSOR" means the Application Specific Integrated Circuit developed
by SGI pursuant to Schedule A for incorporation in the Consumer Hardware.
(l) A new Section 1.33 is hereby added to the Agreement as follows:
1.33 "DEVELOPER'S MANUAL" shall mean all versions of the Nintendo 64
Developer's Manual, covering the topics listed in Schedule D, developed and
delivered by SGI to Company pursuant to this Agreement.
(m) A new Section 1.34 is hereby added to the Agreement as follows:
1.34 "DEVELOPMENT ENVIRONMENT" shall mean all versions of the software listed
in Schedule D, developed and delivered by SGI to Company pursuant to this
Agreement for use by Packaged Software developers.
(n) A new Section 1.35 is hereby added to the Agreement as follows:
1.35 "MASK WORK" means the layout of the Coprocessor.
2. A new Schedule C, as attached to this Second Addendum, is hereby added to
the Agreement.
3. A new Schedule D, as attached to this Second Addendum, is hereby added to
the Agreement.
4. The following is hereby added to the end of Section 6.2 of the Agreement:
SGI and Company shall use reasonable efforts to pursue and to prosecute Filings
applicable to the invention identified as "Invention 2" in Schedule C, which the
parties acknowledge is directed primarily
to the protection of Developed Technology. As provided in this Section 6.2,
Company shall have the administrative responsibility for such Filings.
5. Confidentiality. New Sections 8.9, 8.10 and 8.11, which the parties agree
shall be effective as of the effective date of the Agreement, are hereby added
to the Agreement as follows:
8.9 CONFIDENTIALITY OF COMPANY TECHNOLOGY. SGI acknowledges Company's
representation that the Company Technology constitutes the valuable proprietary
and confidential information of Company, and agrees to (i) retain in confidence
the Company Technology, (ii) restrict the use of and access to the Company
Technology to its employees to whom disclosure is necessary in connection with
this Agreement, and to authorized subcontractors, (iii) appropriately bind each
employee to whom any such disclosure is made to hold the Company Technology in
confidence, and (iv) not to sell, lease, transfer or otherwise disclose the
Company Technology to any third party except as permitted by this Agreement,
provided, however, that SGI may disclose the Company Technology to its agents
and consultants; if necessary or appropriate in furtherance of SGI's development
work under this Agreement, under the terms and conditions of a signed, written
confidential disclosure agreement with terms and conditions which prohibit
disclosure to other parties, and which are otherwise at least as restrictive as
the terms of subsections (i)-(iii) of this Section 8.9. Without limiting the
foregoing, SGI agrees that it will treat the Company Technology with at least
the same degree of care as it would its own highly proprietary information.
8.10 CONFIDENTIALITY OF FOREGROUND TECHNOLOGY. SGI and Company acknowledge that
the Foreground Technology constitutes their valuable and proprietary
information. Except to the extent that any Foreground Technology is described in
any Patent, and except as otherwise agreed in writing by the parties, each of
SGI and Company agrees to (i) retain in confidence the Foreground Technology,
(ii) restrict the use of and access to the Foreground Technology to its
employees to whom disclosure is necessary or permitted in connection with the
exercise of their rights in the Foreground Technology as provided in this
Agreement, and to authorized licensees and subcontractors, (iii) appropriately
bind each employee to whom any such disclosure is made to hold the Foreground
Technology in confidence, and (iv) not sell, lease, transfer or otherwise
disclose the Foreground Technology to any third party except to licensees
permitted by this Agreement and to its agents or consultants under the terms and
conditions of a signed, written confidential disclosure agreement with terms and
conditions which prohibit disclosure to other parties, and which are otherwise
at least as restrictive as the terms of subsections (i)-(iii) of this Section
8.10. Without limiting the foregoing, SGI agrees that it will treat the
Foreground Technology with at least the same degree of care as it would its own
highly proprietary information.
8.11 CONFIDENTIALITY OF DEVELOPED TECHNOLOGY. SGI and Company acknowledge that
the Developed Technology constitutes their valuable and proprietary information.
Except to the extent that any Developed Technology is described in any Patent,
and except as otherwise agreed in writing by the parties, each of SGI and
Company agrees to (i) retain in confidence the Developed Technology, (ii)
restrict the use of and access to the Developed Technology to its employees to
whom disclosure is necessary or permitted in connection with the exercise of
their rights in the Developed Technology as provided in this Agreement, and to
authorized licensees and subcontractors, (iii) appropriately bind each employee
to whom any such disclosure is made to hold the Developed Technology in
confidence, and (iv) not sell, lease, transfer or otherwise disclose the
Developed Technology to any third party except to licensees permitted by this
Agreement and to its agents or consultants under the terms and conditions of a
signed, written confidential disclosure agreement with terms and conditions
which prohibit disclosure to other parties, and which are otherwise at least as
restrictive as the terms of subsections (i)- (iii) of this Section 8.11. Without
limiting the foregoing, SGI agrees that it will treat the Developed Technology
with at least the same degree of care as it would its own highly proprietary
information.
6. The following is hereby added to the end of Section 9.3(b) of the
Agreement:
As of the effective date of this Second Addendum, SGI represents and warrants to
Company that, to the best of SGI's actual knowledge, SGI has provided Company
with a copy of (i) all patent applications filed
by SGI whose claims would be infringed by the unauthorized manufacture, use or
sale of the Consumer Hardware and/or the Packaged Software incorporating those
components of the Consumer Hardware and/or the Packaged Software developed by
SGI pursuant to this Agreement; and (ii) all patent applications currently being
prepared by SGI whose claims, as currently drafted, would be infringed by the
unauthorized manufacture, use or sale of Consumer Hardware and/or the Packaged
Software incorporating those components of the Consumer Hardware and/or the
Packaged Software developed by SGI pursuant to this Agreement. If, subsequent to
the effective date of this Second Addendum, SGI learns of any such patent
application or if any such claim is added to any such application, SGI shall
promptly notify Company.
7. Intellectual Property Indemnity. Sections 9.5 and 9.6 of the Agreement are
hereby deleted in their entirety and replaced with the following:
9.5 SGI INTELLECTUAL PROPERTY INDEMNIFICATION. SGI will defend, indemnify, and
hold harmless Company and its Affiliates, directors, officers, employees and
agents against any claim, suit or proceeding alleging that the Background
Technology or SGI's contributions to the Foreground Technology or the Developed
Technology or use thereof infringes or misappropriates any U.S. or Japanese
copyright, mask work, trade secret, patent or other intellectual property,
proprietary or contract rights of any third party and against any damages or
liability resulting from such claim, suit or proceeding, including, without
limitation, reasonable attorneys' fees and other costs and expenses, provided
that (i) Company gives SGI notice of the claim, suit or proceeding promptly
after commencement thereof (or, if later, promptly after Company learns that
such claim, suit or proceeding relates to the Background Technology or SGI's
contribution to the Foreground Technology or the Developed Technology), (ii) SGI
may not settle any claim, suit or proceeding without the prior, written consent
of Company which consent shall not be unreasonably withheld, provided that if
Company refuses to consent to settlement acceptable to the plaintiff(s) and
proposed by SGI to Company, SGI's total liability under this Section 9.5 shall
be limited to the amount of the proposed settlement and attorney's fees incurred
as of the date of SGI's request for Company's consent, and (iii) Company
provides SGI with all reasonable assistance requested by SGI in connection with
the defense and/or resolution of any such claim, suit or proceeding, at SGI's
expense. Notwithstanding the defense obligation of SGI under this Section 9.5,
Company shall have the right, at its own expense, to appoint its own counsel to
participate in any claim, suit or proceeding, and SGI shall cooperate with
Company and such counsel. If there is a final determination of infringement or
misappropriation, SGI shall, at its option, use reasonable efforts to, (i)
replace or modify any componentof the Background Technology or SGI's
contribution to the Foreground Technology or the Developed Technology with a
functionally equivalent noninfringing component that conforms to the
requirements of this Agreement, or (ii) obtain a license for Company to use such
Background Technology or SGI's contribution to the Foreground Technology or the
Developed Technology. Notwithstanding the foregoing, SGI shall have no liability
for a claim, suit or proceeding to the extent based on (a) modification of the
Background Technology or SGI's contribution lo the Foreground Technology or the
Developed Technology by or for Company (other than by SGI), or (b) Company's use
of the Background Technology or SGI's contribution to the Foreground Technology
or the Developed Technology with Accessories not supplied by SGI, or (c)
Company's use of a version of the Background Technology or SGI's contribution to
the Foreground Technology or the Developed Technology that was not at the time
of use the most recent version provided by SGI to Company. For purposes of this
Section 9.5, SGI's contributions to the Foreground Technology or the Developed
Technology shall include any technology developed by SGI subcontractors. SGI'S
LIABILITY UNDER THIS SECTION 9.5 SHALL IN NO EVENT EXCEED THE DEVELOPMENT FEES
AND ROYALTIES PAID BY COMPANY TO SGI UNDER THIS AGREEMENT.
9.6 COMPANY INTELLECTUAL PROPERTY INDEMNIFICATION. Company will defend,
indemnify, and hold harmless SGI and its Affiliates, directors, officers,
employees and agents against any claim, suit or proceeding alleging that the
Company contributions to the Foreground Technology or the Developed Technology
or use thereof infringes or misappropriates any U.S. or Japanese copyright, mask
work, trade secret, patent or other intellectual property, proprietary or
contract rights of any third party and against any damages or liability
resulting from such claim, suit or proceeding, including, without
limitation, reasonable attorneys' fees and other costs and expenses, provided
that (i) SGI gives Company notice of the claim, suit or proceeding promptly
after commencement thereof (or, if later, promptly after SGI learns that such
claim, suit or proceeding relates to the Company contributions to the Foreground
Technology or the Developed Technology), (ii) SGI gives Company sole authority
to defend and/or resolve any such claim, suit or proceeding or the portion
thereof relating to the Company contributions to the Foreground Technology or
the Developed Technology, and (iii) SGI provides Company with all reasonable
assistance requested by Company in connection with the defense and/or resolution
of any such claim, suit or proceeding, at Company's expense. Notwithstanding the
defense obligation of Company under this Xxxxxxx 0.0, XXX shall have the right,
at its own expense, to appoint its own counsel to participate in any claim, suit
or proceeding, and Company shall cooperate with SGI and such counsel.
Notwithstanding the foregoing, Company shall have no liability for a claim, suit
or proceeding to the extent based on (a) modification of the Company
contributions to the Foreground Technology or the Developed Technology or (b)
SGI's use of the Company contributions to the Foreground Technology or the
Developed Technology with equipment or components not supplied by Company. For
purposes of this Section 9.6, Company's contributions t the Foreground
Technology or the Developed Technology shall include any technology developed by
Company subcontractors. COMPANY'S LIABILITY UNDER THIS SECTION 9.6 SHALL IN NO
EVENT EXCEED THE DEVELOPMENT FEES AND ROYALTIES PAID BY COMPANY TO SGI UNDER
THIS AGREEMENT.
8. Rights in Foreground Technology. A new Article 14.0 is hereby added to the
Agreement as follows:
14.0 RIGHTS IN FOREGROUND TECHNOLOGY.
14.1 JOINT OWNERSHIP. Subject to the terms and conditions of this Agreement,
SGI and Company shall jointly own, in equal, undivided shares (and each party
hereby assigns to the other an equal, undivided interest in) all right, title
and interest in the Foreground Technology (whether developed in whole or in part
by SGI or by Company), and title to all patents issued thereon shall be joint.
14.2 SGI RIGHTS IN FOREGROUND TECHNOLOGY. Subject to the provisions of Section
6.4(a), which shall apply to the Foreground Technology as well as the Background
Technology, SGI shall have the unrestricted right to use the Foreground
Technology and to license any third party to use the Foreground Technology
without the consent of Company, and without any duty to account to or to share
proceeds with Company, on account of such use or licensing of the Foreground
Technology. SGI's rights in the Foreground Technology shall survive the
expiration or termination of this Agreement and shall continue until the
expiration of the last Patent to expire that would be infringed by the
manufacture, use or sale of any Foreground Technology.
14.3 COMPANY RIGHTS IN FOREGROUND TECHNOLOGY. Notwithstanding Company's joint
ownership rights in the Foreground Technology, Company agrees that Company shall
only have (a) the worldwide, nontransferable (except to Company's authorized
subcontractors) right to use the Foreground Technology only in combination with
the Licensed Background Technology and the Developed Technology for purposes of
the design, manufacture, use, sale and/or distribution of Company Products, and
(b) the worldwide right to grant nonexclusive licenses to Licensees to use the
Foreground Technology, only in combination with the Licensed Background
Technology and the Developed Technology, for purposes of the design,
manufacture, use, sale and/or distribution of Packaged Software, Accessories,
Coin Operated Software and/or Coin Operated Hardware. All such licenses shall be
in writing and shall be pursuant to a form of agreement incorporating license
grant and proprietary rights provisions approved in writing by SGI, which
approval shall not be unreasonably withheld. Company shall have no obligation to
obtain the consent of SGI, or to account to or to share proceeds with SGI, on
account of such licensing or use of the Foreground Technology as permitted in
this Section 14.3. Company's rights in the Foreground Technology shall commence
as of the effective date of this Second Addendum and shall survive the
expiration of the term of this Agreement and shall continue until the expiration
of the last Patent to expire that would be infringed by the unauthorized
manufacture, use or sale of any Foreground Technology. If the parties succeed in
obtaining Patents, which they would jointly own, and which would be infringed by
the manufacture, use or sale of any Foreground Technology, SGI will
not assert a claim against Company or a Licensee for infringement of any such
Patent on account of Company's or a Licensee's manufacture, use or sale of such
Foreground Technology in products other than Company Products; provided,
however, that SGI reserves the righ to assert a claim against Company for breach
of this Agreement if Company manufactures, uses, sells or licenses any products
other than Company Products which use Foreground Technology.
14.4 COOPERATION OF THE PARTIES IN FILINGS. The parties shall use reasonable
efforts to pursue and prosecute Filings applicable to the Foreground Technology.
All Filings applicable to the Foreground Technology will be made at a time when
appropriate during the development or after completion of the Foreground
Technology under the names of both parties as joint owners. Company shall have
the primary administrative responsibility for Filings with respect to the
Foreground Technology, and the parties will cooperate with respect to Filings on
the Foreground Technology (including with respect to claim amendments). Silicon
Graphics will bear all fees and out-of-pocket expenses payable to Sterne,
Kessler, Xxxxxxxxx and Xxx in connection therewith, and Company shall bear all
other filing fees, attorneys' fees and out-of-pocket expenses incurred in
connection therewith. As used herein, "administrative responsibility" means the
preparation of any documents required for a Filing, and the submission thereof
to the appropriate governmental entity. If SGI has not yet received a proposed
Filing from Company on an item of Foreground Technology, and SGI believes that a
Filing should be made with respect thereto, SGI may submit a written request to
Company that Company proceed with the preparation of such Filing, provided,
however, that Company may, in its sole discretion, proceed or decline to proceed
with the preparation of such Filing. If Company declines to prepare and submit a
Filing on an item of Foreground Technology, SGI may proceed with the preparation
and submission of such Filing at SGI's expense. In either case. a party
preparing a Filing shall submit such Filing to the other party for its review
and approval prior to any submission to any governmental entity. A Filing shall
be deemed accepted by the receiving party if the receiving party does not
provide written notice of rejection to the submitting party within thirty (30)
(or such shorter period as the parties may agree upon) days after the submitting
party's notice thereof. If a party rejects a Filing, it shall include with its
rejection notice a detailed description of its reason(s) for rejection, and
shall make specific suggestions as to any modifications which it believes should
be made to the form or content of such Filing prior to submission. If the
submitting party believes that the modifications suggested by the receiving
party are inappropriate, the submitting party's Coordinator shall contact the
receiving party's Coordinator, and the Coordinators shall arrange and hold a
meeting or discussion between appropriate representatives of the parties, at a
mutually acceptable time and place, to determine a mutually acceptable form,
content and time for the proposed Filing. Each party shall provide the other
with copies of any correspondence, materials or communications sbmitted to or
received from a governmental entity or a third party relating to any Filing. SGI
will provide such information regarding the Background Technology, Foreground
Technology and Developed Technology as Company may reasonably request for
purposes of permitting Company and its advisors to evaluate actual or potential
infringement claims directed at Company Products. Nothing in this Section 14.4
shall be interpreted to expand SGI's obligations under Section 9.5.
14.5 ENFORCEMENT OF RIGHTS IN FOREGROUND TECHNOLOGY. Before initiating any
action against an alleged infringer of any rights in the Foreground Technology,
each party (the "Enforcing Party") shall contact the other party to confirm that
the alleged infringer has not been granted a license to use the Foreground
Technology by the other party or has not purchased from the other party products
whose use would entitle the alleged infringer to use the Foreground Technology.
If the alleged infringer has not obtained such a license or purchased such
products, the Enforcing Party shall have the right, without further consent of
the other party, to take such steps as it chooses, in its sole discretion, to
enforce its rights as joint owner of the Foreground Technology, and the other
party shall provide such reasonable assistance as the Enforcing Party may
request in connection therewith, provided either that such assistance does not
require any out-of-pocket expenditures by the other party or that the Enforcing
Party agrees to reimburse any such out-of-pocket expenses incurred by the other
party. The Enforcing Party shall be entitled to retain all amounts recovered
from the alleged infringer in connection with the litigation and/or settlement
of any such action. The Enforcing Party shall defend, indemnify and hold
harmless the other party and its Affiliates from and against any claim, suit or
proceeding initiated against the other party by any alleged infringer in
connection with or in response to actions initiated against the alleged
infringer by the Enforcing Party, provided that (i) the other party gives the
Enforcing Party notice of the
claim, suit or proceeding promptly after commencement thereof, (ii) the other
party gives the Enforcing Party sole authority to defend and/or resolve any such
claim, suit or proceeding, and (iii) the other party gives the Enforcing Party
all reasonable assistance requested by the Enforcing Party in connection with
the defense and/or settlement of the claim, suit or proceeding, at the Enforcing
Party's expense.
14.6 MICROCODE/LIBRARIES, COPROCESSOR COMMAND SET, COPROCESSOR MICROINSTRUCTION
SET, AND MASK WORK. SGI will deliver to Company the Microcode/Libraries, in
source code and object code forms, the Microcode/Libraries development
environment, and documentation of the Coprocessor Command Set and the
Coprocessor Microinstruction Set, at a time to be mutually agreed upon in
writing by SGI and Company. SGI and Company acknowledge and agree that (a) the
Developed Technology is implemented in part in each of the Microcode/Libraries,
the Coprocessor Command Set, the Coprocessor Microinstruction Set, and the Mask
Work; (b) subject to SGI's rights in the Licensed Background Technology embodied
in each of them, Company shall own any and all copyrights in the
Microcode/Libraries, the Coprocessor Command Set, the Coprocessor
Microinstruction Set, the Developer's Manual and the Development Environment;
(c) subject to SGI's rights in the Licensed Background Technology embodied in
the Coprocessor, SGI and Company shall jointly own the mask work rights in the
Mask Work; and (d) all Developed Technology incorporated in the
Microcode/Libraries, Coprocessor Command Set, Coprocessor Microinstruction Set,
and the Mask Work shall be subject to the provisions of Sections 6.4 and 6.5
applicable to the Developed Technology. Company hereby grants to SGI a paid-up,
nonexclusive, irrevocable, worldwide license to duplicate, distribute, modify,
enhance, sublicense and otherwise use or exploit the Microcode/Libraries, the
Coprocessor Command Set, the Coprocessor Microinstruction Set and the
Development Environment, subject only to the provisions of Sections 6.4, 6.5,
14.8 and 14.9.
14.7 FOREGROUND TECHNOLOGY CROSS LICENSES. Notwithstanding the parties' joint
ownership of the Foreground Technology, neither party shall have the right to
license the Foreground Technology to a third party pursuant to a Cross License
unless it obtains the prior, written agreement of the other party to this
Agreement.
14.8 LIMITATIONS ON SGI'S USE OF DEVELOPED TECHNOLOGY. In addition to the
provisions of Sections 6.4 and 6.5, SGI agrees during the term of this Agreement
that SGI shall not manufacture, have manufactured, use, license or sell the
Coprocessor except to the extent permitted by Section 6.5.
14.9 NO COMPATIBLE PROGRAM, DEVICE OR THING. During the term of this Agreement,
except as otherwise permitted by Company or as permitted by Section 6.5(b)
(which is intended to allow SGI hardware and software to be used for Packaged
Software development by Packaged Software developers authorized by Company):
(a) SGI will not license any third party to use, distribute or publish and will
not itself use, distribute or publish any version of the Microcode/Libraries or
other computer program, device or thing that, in unmodified form, (i) would
enable video game software or non- video game software authorized by Company to
be used with devices other than Company Products, or (ii) would enable video
game software or non-video game software which has not been authorized by
Company to be used with Company Products;
(b) SGI will not disclose, use or license any third party to use, the binary
format of the Coprocessor controller registers or the binary addresses
associated with the Coprocessor controller registers; and
(c) SGI will not disclose or use, or license any third party to use, the binary
command formats for controlling or commanding the display processor portion of
the Coprocessor.
14.10 SOFTWARE DEVELOPMENT BY COMPANY AND LICENSEES. As an owner of the
copyrights in the Microcode/Libraries and the Coprocessor Microinstruction Set,
the Developer's Manual and the Development Environment Company shall have the
right to develop, reproduce and distribute derivative works thereof, and to
grant Licensees the right to develop, reproduce and distribute derivative
works thereof. SGI makes no claim of rights in any portions of such derivative
work(s) developed by Company and/or any Licensee.
9. Warranty Exclusion. Section 9.2. "Warranty Exclusion"s shall be amended to
insert the phrase "or Foreground Technology" immediately following the phrase
"Developed Technology", wherever it appears in such section.
10. Limitation of Liability. Article 10.0 is hereby revised to read as
follows:
10.0 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF
ANY KIND (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT OR DATA) WHETHER OR NOT
ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED, WHETHER FOR BREACH OR
REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, INABILITY TO USE THE
BACKGROUND TECHNOLOGY, THE FOREGROUND TECHNOLOGY, OR OTHERWISE. IN NO EVENT
SHALL THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER EXCEED THE TOTAL
AMOUNT PAYABLE BY COMPANY TO SGI UNDER THIS AGREEMENT. THE ESSENTIAL PURPOSE OF
THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF THE PARTIES ARISING OUT OF
THIS AGREEMENT.
11. Survival of Obligations. Section 11.4 is hereby revised to add the
provisions of Article 14.0 to the list of provisions setting forth rights and
obligations of the parties that survive termination of the Agreement.
12. Effect of Addendum. Except as amended and supplemented by this Second
Addendum, the Agreement remains in effect pursuant to its terms, and is hereby
ratified and confirmed.
IN WITNESS WHEREOF, the parties have executed this Second Addendum as of the
date first written above.
NINTENDO CO., LTD. NINTENDO OF AMERICA INC.
By: /s/ [not legible] By: /s/ Xxxx [not legible]
----------------- ----------------------
Title: Senior Managing Director Title: Executive Vice President
-------------------------------
SILICON GRAPHICS, INC. MIPS TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxx Xxxxxxxx
Title: President & Chief Title: President
----------------
Operating Officer
-----------------
[XXXXXX]=CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED PURSUANT
TO AN ORDER GRANTING CONFIDENTIAL TREATMENT ISSUED BY THE SECURITIES
AND EXCHANGE COMMISSION.
SCHEDULE C
INVENTION 1 XXXXXX
INVENTION 2 XXXXXX
INVENTION 3 XXXXXX
INVENTION 4 XXXXXX
INVENTION 5 XXXXXX
INVENTION 6 XXXXXX
SCHEDULE D
Developer's Manual covers the following topics:
. Release Notes for this version of the software. . Hardware & Software
Installation and Troubleshooting. . System Overview -
Overview of the Hardware Architecture, Run-time Software Architecture, and
Compilation.
. Operating System Overview - Discussion of the organization of the N 64
Operating System and how to use it. Includes Threads, Scheduling, Pre-emption,
Input/Output Subsystem Control (Video Interface, Audio Interface, Parallel
Interface, and Controller Interface), and Memory Management. . Graphics,
Reality Signal Processor (RSP) Operation - How to use Display Lists and Display
List Hierarchies, Segments, Managing the cache, Using matrices, Vertex State,
Lighting, Materials, Textures, Fog, Clipping and Culling.
. Graphics, Reality Display Processor (RDP) Operation - RDP Pipeline
Description, RDP State, Scissoring, Detailed descriptions of each part of the
RDP Pipeline --these include the Rasterizer (RS), Texture Engine (TX), Texture
Filter (TF), Color Combiner (CC), Blender (BL), and Memory Interface (MI), Use
of Texture Mapping, including the interface, Texture Memory (TMEM), Texture
attributes, pipeline, Level-of-Detail (LOD), MIP- mapping, and special effects.
Also, a discussion of the Sprite library, including the interface, Sprite
structures. Sprite attributes. and tricks.
. The Audio Library - Overview of the Audio system, including low-level
discussion of the Sound Player, Sequence Player, and Synthesis Driver. Includes
descriptions of the interface for each, as well as how to use special effects
such as vibrato, and how to write a custom Audio Driver which interfaces with
the Synthesis Driver.
. Audio Tools - How to use the instrument Compiler (ic) for creating sound
banks, the ADPCM tools to create individual sounds and effects, and the MIDI
tools to create and modify MIDI song files.
. Audio File Format - Details of the audio file format structures. . Using
Audio Tools - Performance Tips and Hints, and various examples. . Scheduling
Audio and Graphics Tasks - Discusses the use of the scheduler (optional), how to
create command lists and manage the proportions of CPU time which the audio
tasks and graphics task receive. Describes the scheduler interface and hints for
utilizing it most effectively.
. Development Tools, Debugger - Details about the use of the debugger, as well
as how it interfaces with the host workstation to provide feedback to the
developer. . Performance Tuning - Hints and tips on getting the most
performance out of the N 64. Sections include Geometry Tuning, Raster Tuning,
CPU Tuning, and Data Reduction.
Development Environment consists of:
. Game Shop: the debugger for runtime debugging on the N 64.
. dmedia_eoe: contains the midi kernel device driver that enables an SGI
System with IRIX 5.3 installed to interface with a MIDI device;
this is necessary to support N 64 audio development tools.
. Ultra: contains the runtime operating system/audio/graphics libraries
for Packaged Software development. Also contains tools to build
ROM images and sample programs.
