LICENSE AGREEMENT FOR THE NINTENDO DS SYSTEM

Exhibit 10.43

CONFIDENTIAL

“[ * ]” denotes confidential information omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule 24b-2 under the Securities Exchange Act of 1934, as amended.

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 MIDWAY GAMES LTD. (“LICENSEE”) at 43 Worship Street, London EC2A 2DX, U.K.; Attn: Mr. Martin Spiess, Managing Director (Fax: (44) 20.7938.3466). LICENSEE’s address for notice is: Midway Games Inc., 3401 North California Avenue, Chicago, Illinois 60618, USA, Attn: Vice President & General Counsel (facsimile: 1-312-961-1020). 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 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 “Nintendo™”, “Nintendo DS™”, and the “Official Nintendo Seal of Quality™”, (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 [       *      ] 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, 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 “NOA” means NCL’s subsidiary, Nintendo of America Inc. of Redmond, Washington, USA.

     2.19 “Reverse Engineer(ing)” means, without limitation, [   *  ]

     2.20 “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.

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

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

     2.23 “Territory” means any and all countries within the European Economic Area; namely Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Romania, 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.

     2.24 “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,

          (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.

     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 [       *      ] 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 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 . [       *       ]

     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. [       *       ]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) [       *       ] of the fully assembled, Licensed Produ