EXHIBIT 10.7.3
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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 XXXXXX of certain patents 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 XXXXXX
(f) A new Section 1.27 is hereby added to the Agreement as follows:
1.27 "COPROCESSOR COMMAND SET" means XXXXXX
(g) A new Section 1.28 is hereby added to the Agreement as follows:
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1.28 "MICROCODE/LIBRARIES" means XXXXXX
(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 XXXXXX
(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.
(I) 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:
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XXX 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
Page 3
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 XXXXXX or use thereof infringes or misappropriates
any U.S. XXXXXX 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 XXXXXX), (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 component of XXXXXX
with a functionally equivalent noninfringing component that conforms
to the requirements of this Agreement, or (ii) obtain a license for
Company to use XXXXXX Notwithstanding the foregoing, SGI shall have
no liability for a claim, suit or proceeding to the extent based on
(a) modification of XXXXXX
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Page 4
by or for Company (other than by SGI), or (b) Company's use of the
XXXXXX with Accessories not supplied by SGI, or (c) Company's use of a
version of the XXXXXX that was not at the time of use the most recent
version provided by SGI to Company. For purposes of this Section 9.5,
XXXXXX SGI'S LIABILITY UNDER THIS SECTION 9.5 SHALL IN NO EVENT EXCEED
XXXXXX
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 XXXXXX or use thereof infringes or
misappropriates any U.S. XXXXXX 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 XXXXXX), (ii) SGI gives
Company sole authority to defend and/or resolve any such claim, suit
or proceeding or the portion thereof relating to XXXXXX 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 XXXXXX or (b) SGI's use of
the XXXXXX with equipment or components not supplied by Company. For
purposes of this Section 9.6, XXXXXX COMPANY'S LIABILITY UNDER THIS
SECTION 9.6 SHALL IN NO EVENT EXCEED XXXXXX
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 XXXXXX
XXXXXX
14.2 SGI RIGHTS IN FOREGROUND TECHNOLOGY. XXXXXX
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Page 5
XXXXXX 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. XXXXXX 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 XXXXXX, 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 right 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 XXXXXX.
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
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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 submitted 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 XXXXXX 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 XXXXXX
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(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. XXXXXX
14.7 FOREGROUND TECHNOLOGY CROSS LICENSES. XXXXXX 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, XXXXXX
14.9 XXXXXX
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.
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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 XXXXXX.
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/ (illegible) By: /s/ (illegible)
--------------------------- ---------------------------
Title: Senior Managing Director Title: Executive Vice President
February 20, 1996
SILICON GRAPHICS, INC. MIPS TECHNOLOGIES, INC.
By: /s/ (illegible) By: /s/ (illegible)
------------------------------ ---------------------------
Title: President & Chief Title: President
Operating Officer
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SCHEDULE C
Invention l XXXXXX
Invention 2 XXXXXX
Invention 3 XXXXXX
Invention 4 XXXXXX
Invention 5 XXXXXX
Invention 6 XXXXXX
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SCHEDULE D
Developer's Manual covers the following topics:
XXXXXX
Development Environment consists of:
XXXXXX
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