3100 Ocean Park Boulevard
`Santa Monica, California 90405
`Tel: 310.255.2000
`Fax: 310.255.2152
`
`Party:
`Product:
`Deal Type:
`
`Bungie, LLC
`Destiny
`Software Publishing and Development Agreement
`
`SOFTWARE PUBLISHING AND DEVELOPMENT AGREEMENT
`
`This Software Publishing and Development Agreement (this "Agreement") is entered into effective as of
`April 16, 2010 (the "Effective Date") by and between Bungie, LLC ("Licensor" or "Bungie"), a Delaware limited
`liability company with offices at 434 Kirkland Way, Kirkland, WA 98033, and Activision Publishing, Inc.
`("Activision"), a Delaware corporation with offices at 3100 Ocean Park Boulevard, Santa Monica, California 90405,
`U.S.A.
`
`RECITALS:
`
`A.
`
`B.
`
`C.
`
`D.
`
`Activision is engaged in the business of developing, publishing, licensing and distributing
`entertainment software products;
`
`Licensor is in the business of developing and producing entertainment software products, and owns
`and holds the rights to develop, manufacture, publish, license, market and distribute a series of
`entertainment software products currently being developed by Licensor entitled "Destiny" (also
`sometimes referred to herein or in the exhibits hereto as "Tiger') (the "Destiny Property");
`
`Activision and Licensor entered into a Development and Publishing Letter of Intent dated March 31,
`2010 (the 'LOI") pursuant to which Licensor and Activision entered in a relationship whereby
`Licensor agreed to develop certain interactive entertainment software products based on the
`Destiny Property to be exclusively published and distributed by Activision; and
`
`Activision and Licensor wish to enter into a long-form software development and publishing
`agreement with respect to the Destiny Property based on the terms set forth in the LOI and as
`provided by the LOI, which long-form agreement will supersede and replace the LO!.
`
`The parties to this Agreement agree as follows:
`
`1. Products
`
`"Product" or "Products" means the following that are developed during the Development Term (as such term is
`defined in Section 4.1 ): (a) a series of interactive entertainment software products being developed by Licensor
`based on the Destiny Property, planned to be massively-multiplayer-style (I.e., client-based mission structures
`with persistent elements), sci-fantasy, action-shooter games (collectively, "Destiny Games" and individually,
`each a "Destiny Game" or "Destiny Game #1", "Destiny Game #2", "Destiny Game #3" and "Destiny Game
`#4" as applicable) for operation on the platforms and formats described in Section 2; (b) major downloadable
`content expansion pack-type software releases developed by Licensor for each Destiny Game (collectively,
`"Comets" and individually, each a "Comet" or "Comet #1", "Comet #2", "Comet #3" and "Comet #4" as
`applicable); (c) smaller interstitial downloadable content software releases developed by Licensor for each
`Destiny Game (collectively, "DLC Releases" and individually, each a "DLC Release"); (d) Conversions (as
`defined in Section 5.1 ); and (e) any related value-added services or other premium content offered in connection
`with the Destiny Games and/or Comets; but Products exclude Ancillary Markets (as such term is defined in
`Section 5.5) and Bungie.net (as described in Exhibit B hereto). The concept document for Destiny Game #1 is
`attached hereto as Exhibit A.
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`1 A. Release Plan
`
`The release plan for the Destiny Games ("Release Plan") is currently comprised of four (4) major retail Destiny
`Game releases tentatively scheduled for the t=all of 2013, 2015, 2017 and 2019 and four (4) Comet releases
`following each Destiny Game release tentatively scheduled for the Fall of 2014, 2016, 2018 and 2020. In
`addition, as part of the Destiny Games Licensor shall also produce DLC Releases as mutually agreed by the
`parties in the time periods between retail Destiny Games and Comet releases. The expected business model for
`the Products is a blend of retail packaged goods sales (although the parties acknowledge and agree that the
`future retail model for iterations of the Destiny Games may be via digital download rather than disk or packaged
`goods), subscriptions, downloadable content, value-added services and micro-transactions, the exact mix of
`which shall be determined by mutual agreement of Licensor and Activision. PriCing strategy for the Products shall
`be subject to mutual approval, provided in the event of a deadlock, Activision shall have the tie-breaking vote.
`Activision will have control and final approval over all decisions relating to retail sales and promotions, discounts,
`rebates, etc., provided that Activision shall meaningfully consult with Licensor on such decisions in advance.
`
`2. Platforms
`
`2.1
`
`Subject to Section 5 of this Agreement:
`
`(a) A cross-console and cpnsole transition plan for Destiny Games #1 and #2 is attached hereto as Exhibit C
`("Native Release Plan"), which shall be the plan of record for Destiny Games #1 and #2. The parties hereto
`shall discuss and mutually agree on the operating platforms for all other Products, as well as plans to
`manage cross-platform development efforts and platform transition to next generation consoles during the
`Development Term (as such term is defined in Section 4.1), in good faith.
`
`(b) As described in the Native Release Plan, Destiny Game #1, along with any related DLC Releases as well
`as Comet #1, shall be initially developed by Licensor to operate on and be compatible with the Microsoft
`Xbox 360 video game console ("Xbox 360") and the next successor console platform released by Microsoft
`configured for both the NTSC and PAL television/video system standards ("Xbox 720"). The parties
`acknowledge and agree that the budget set forth in the Payment Schedule set forth on Exhibit E attached
`hereto is scoped to delivery of only the Xbox 360 SKU (plus content pipeline) for Destiny Game #1. The
`parties also currently contemplate the development and commercial release of Destiny Game #1 for the
`PlayStation 3 computer entertainment system ("PS3") in the Fall of 2014, subject to the parties hereto
`conducting a joint technical feasibility analysis that reasonably establishes to the parties' mutual satisfaction
`that Destiny Game #1 is able to be developed for the PS3 at quality and feature parity to the Xbox 360
`version of Destiny Game #1 (the Xbox 360, the Xbox 720 and the PS3 are collectively referred to herein as
`the "Destiny Game #1 Platforms"). The parties hereto shall mutually agree to the incremental budget to
`fund the PS3 technical feasibility analysis. The cost of the technical feasibility analysis shall be included in
`the overall Project Accounting (as such term is defined in Section .11.5) for purposes of calculating Operating
`Income (as such term is defined in Section 11.1); provided, however, that in the event the parties hereto
`agree that a PS3 version of Destiny Game #1 is not feasible, any costs of the technical feasibility analysis in
`excess of Two Million Dollars ($2,000,000) shall be excluded from the overall Project Accounting. The
`parties shall seek to conclude technical diligence on whether to develop Destiny Game #1 for the PS3 by no
`later than January 31, 2011. The parties shall then commence a business diligence phase ending no later
`than March 31,2011, to ascertain the commercial desirability of the PS3 SKU, taking into consideration the
`then prevailing information regarding expected market conditions and console transitions. The baseline
`framework for analyzing the SKU-plan of the Products is attached hereto as Exhibit F. Licensor agrees that
`it shall not willfully take any actions (or make any omissions) in its development of the Xbox 360 version of
`Destiny Game #1 to hinder or undermine the ability to also develop Destiny Game #1 for the PS3. In no
`event shall Licensor be required to simultaneously ship Destiny Game #1 for the Xbox 360 and PS3 in the
`Fall of 2013.
`
`(c) Subject to the terms of Section 5, Destiny Game #2, along with any related DLC Releases as well as
`Comet #2, shall be initially developed by Licensor to operate on and be compatible with the Xbox 360, Xbox
`720 and the Sony PlayStation 4 computer entertainment system (I.e., the next successor platform released
`by Sony after PlayStation 3) configured for both the NTSC and PAL television/video system standards
`("PS4", and collectively, the Xbox 360, Xbox 720 and PS4 are referred to herein as the "Destiny Game #2
`Console Platforms"), and personal computer with Windows-based operating system ("PC")(the "Destiny
`Game #2 PC Platform") (the Destiny Game #2 Console Platforms and the Destiny Game #2 PC Platform
`are collectively referred to herein as the "Destiny Game #2 Platforms"). The parties hereto agree that prior
`to commencing production on the Xbox 720, PC and PS4 SKUs of Destiny Game #2, Activision and
`
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`Licensor shall mutually agree on the business case and technical feasibility of such SKUs, the incremental
`deveiopment budget, and production schedule therefor.
`
`(d) The Destiny Game #1 Platforms, the Destiny Game #2 Platforms and such operating platforms as the
`parties may mutually agree pursuant to Section 2.1 (a) are collectively referred to herein as the "Platforms"
`and each individually as a "Platform". Xbox 360, Xbox 720, PS3 and PS4 are collectively referred to herein
`as "Console Platforms" and each individually as a "Console Platform".
`
`3. Territory
`
`The territory of this Agreement shall be worldwide, except where prohibited by applicable law or regulation (the
`"Territory") .
`
`4. Term
`
`4.1
`
`4.2
`
`4.3
`
`The commencement date of the development term (the "Development Term") is April 16, 2010 and the
`Development Term shall continue until Licensor's delivery to Activision of the Release to Certification
`Version (as such term is defined in Section 9.1) of Comet #4.
`
`Activision and Licensor shall mutually agree upon a budget to support the continuing operation of the
`Products for a period of three (3) years following the commercial release of Comet #4 ("Support Term").
`During the Support Term, Licensor shall be responsible for continuing support obligations with respect to
`the Products as described in Section 7.1(xviii). If Activision fails to continue publication and distribution
`of the Products in a manner consistent with other equivalent interactive entertainment software products
`that it publishes and distributes and customary market practices (it being expressly understood that over
`the course onhe Development Term, one (1) or more of the Products could become technically
`obsolete), or fails to fund Licensor's dedicated support team during the Support Term, such failure will be
`deemed a material breach of this Agreement, subject to all applicable cure-periods contained in Section
`17.2 of this Agreement.
`
`The distribution term for the Products (the "Distribution Term") shall commence on the Effective Date
`and shall be perpetual (subject to the restrictions set forth in, and termination in accordance with, this
`Agreement). Upon conclusion of the Development Term, Activision agrees that it shall not exercise its
`publishing and distribution rights to the Products under this Agreement to intentionally create confusion
`in the marketplace regarding any future Licensor game. In the event Licensor terminates this Agreement
`in accordance with Section 17.2, or in the event Activision terminates this Agreement pursuant to Section
`17.1 , then the Distribution Term for the Products shall automatically cease and all such rights shall revert
`to Licensor in perpetuity, provided, however, that in the event of a termination by Activision pursuant to
`Section 17.1! Activision shall retain certain rights as set forth in Section 17.1.
`
`5. Grant of Rights
`
`5.1
`
`DUiing the Distribution Term, Licensor hereby grants to Activision, and Activision hereby accepts,
`subject to the terms set forth in this Agreement (including Licensor's exclusive right to develop all
`Products and Conversions as set forth in Section 5.4), the exclusive, royalty-bearing, non-transferable
`(except as set forth in Section 21.13), non-sublicensable (except as set forth in Section 5.3) right and
`license in the Territory to: (a) publish and distribute the Products on the Platforms, (b) publish and
`distribute all versions, conversions and adaptations of the Products for all other platforms, operating
`systems, media, devices, or methods of distribution, whether now known or hereafter created or
`devised, including, but not limited to, Sony PlayStation (e.g., PS3, PS4), PC, handheld (e.g., Nintendo
`DS and Sony PSP), mobile operating systems, online and server based systems, and/or casual
`extensions of the Products which may be playable via handheld gaming devices, a PC or mobile
`handset, which versions, conversions and adaptations are developed during the Development Term
`(the "Conversions"), but Conversions specifically exclude remakes and spinoffs of the Products and
`Ancillary Markets, (c) subject to mutual written approval of the parties, distribute the Products for the
`Platforms in combination or bundled with hardware, software and other products distributed by third
`parties, and (d) publish and distribute localized versions of the Products in the Territory.
`
`5.2
`
`During the Distribution Term, Licensor hereby grants to Activision, and Activision hereby accepts,
`subject to the terms set forth in this Agreement (including Licensor's exclusive right to develop a!!
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`5.3
`
`5.4
`
`Products and Conversions as set forth in Section 5.4), the exclusive, royalty-bearing, non-transferable
`(except as set forth in Section 21.13), non-sublicensable (except as set forth in Section 5.3) iight and
`license in the Territory to manufacture, reproduce, display, perform, advertise, promote, market, sell and
`license the Products, Conversions, and localized versions of the Products soiely to the extent necessary
`for Activision to exercise its rights and licenses granted in Section 5.1.
`
`During the Distribution Term and subject to the terms set forth in this Agreement (including Licensor's
`exclusive right to develop all Products and Conversions as set forth in Section 5.4), Activision shall have
`the right to sublicense the rights granted under Sections 5.1 and 5.2 to (a) an Affiliate (as such term is
`hereinafter defined) of Activision for so long as it remains an Affiliate of Activision if th~ Affiliate agrees
`to be bound by the terms of this Agreement, Activision guarantees the Affiliate's compliance with the
`terms of this Agreement, and Activision and the Affiliate agree to be jointly and severally liable for all
`obligations related to the Affiliate's compliance with the terms of this Agreement; and (b) third parties
`that have been approved in writing by Bungie to the extent that, and only for so long as, the third party
`is acting on Activision's or an Activision Affiliate's behalf; Activision and the applicable Activision Affiliate
`guarantee third party's compliance with the terms of this Agreement; and Activision indemnifies
`Licensor from all damages, costs, and expenses resuliing from the third parties compliance with the
`terms of this Agreement; provided that Activisio'n shall not in any way be relieved of its obligations under
`this Agreement and shall ensure that any such sublicensee complies with the terms of this Agreement.
`Activision must secure written agreements with each non-Affiliate sublicensee to ensure that (x) sole
`and exclusive ownership of all Licensor Product Intellectual Property (as such term is defined in Section
`6.2) created or developed by the non-Affiliate sublicensee shall be fully transferred and assigned to
`Licensor (including the right to seek damages for past and future infringement) without any payment of
`compensation to the non-Affiliate sublicensee and Licensor shall thereafter own all rights to
`improvements, additions, and modifications to and enhancements and derivatives of the Licensor
`Product Intellectual Property; and (y) the non-Affiliate sublicensee shall, upon Licensor's request, take
`any step that Licensor may reasonably require to ensure that all Licensor Product Intellectual Property
`created or developed by the non-Affiliate sublicensee is assigned to Licensor, including the execution
`and delivery to Licensor an assignment of rights with respect to the Licensor Product Intellectual
`Property substantially in the form reasonably specified by Licensor. Notwithstanding the foregoing, to
`the extent an Activision Affiliate sublicensee creates Licensor Product Intellectual Property, Activision
`shall ensure that the sole and exclusive ownership of such Licensor Product Intellectual Property is fully
`transferred and assigned to Licensor (including the right to seek damages for past and future
`infringement) without any payment of compensation to such Activision Affiliate sublicensee, including
`taking any action that Licensor may reasonably require to ensure that all Licensor Product Intellectual
`Property created or developed by the Activision Affiliate sublicensee is assigned to Licensor (such as
`the execution and delivery to Licensor of an assignment of rights to such Licensor Intellectual Property
`substantially in the form requested by Licensor), and Licensor shall thereafter own all rights to
`improvements, additions and modifications to and enhancements and derivatives of such Licensor
`Product Intellectual Property. For the purposes of this Agreement, "Affiliate" means, with respect to any
`entity, any other entity that (i) owns or is owned by that entity or (ii) that controls, is controlled by, or is
`under common control with that entity. For any entity to "control" or "own" another entity, it must do one
`of the following: (1) hold or own more than 50% of the ownership or equity of the owned or controlled
`entity, or (2) have the right to vote more than 50% of that entity's voting equity.
`
`Licensor shall have the exclusive right to develop all Products including any Conversions. This right
`includes Licensor's sole discretion (after consultation with Activision) to define the creative and technical
`scope for all Products and Conversions, subject to the mutual approval of the parties hereto to the final
`project scope, budget, development plan and production schedule. Either party hereto shall have the
`right to propose a Conversion. In the event of a Conversion proposed by Activision, Licensor and
`Activision shall commence a technical diligence period not to exceed five (5) months (excluding a PS3
`Conversion, which is addressed in Section 2.1 (bU. During the technical diligence period, the parties will
`analyze the technical feasibility and business case for the Conversion proposed by Activision. In all
`cases, a Conversion for a Console Platform must have the ability to achieve feature parity in all material
`respects with the applicable Destiny Game for the other Console Platforms, and satisfy technical,
`security, design and quality guidelines as determined above (any other guidelines to be discussed in
`good faith and mutually determined by Licensor and Activision during the technical and business
`diligence process). In the event of a casual Conversion, or Conversion intended for a Console Platform
`or any other Platform with technical specifications incapable of achieving feature parity with a Destiny
`Game developed for Console Platforms (e.g., handheld or mobile extensions to the Destiny Property),
`then Licensor shall determine (in consultation with Activision) the game and technical design of such
`Conversion. In the event LicenSOi elects not to deVelop any such Conversion requested by Activision
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`and approved by Licensor, Activision shall have the right to have such Conversion developed by one of
`its internally"o'vvn6d studios or by a third party developer, provided that Licensor shall have the right to
`approve any third party developer proposed to be utilized by Activision, such approval not to be
`unreasonably withheld or delayed (it being expressly understood and agreed by the parties that (a) only
`an AAA-caliber deveioper that is not a competitive risk to Licensor is reasonable for Licensor to
`approve, and (b) Licensor hereby expressly disapproves of Valve, Epic and Gearbox as potential third
`party developers for Conversions (unless such third party developer should become an Activision
`majority or wholly-owned studio), and (c) Licensor cannot disapprove of the use by Activision of an
`Activision majority or wholly-owned studio), and Licensor shall otherwise provide production, QA,
`associated management services, and other reasonable assistance to Activision and any internal
`Activision studio or third party developer in connection with the development of any such Conversions.
`All rights to any and all work performed by a developer on any such Conversions shall be fully and
`irrevocably assigned to and exclusively owned by Licensor, excluding any Activision Product Intellectual
`Property (as such term is defined in Section 6.2) and subject to the license rights to Activision relating to
`such Conversions as described in Section 6.2. The parties will mutually agree on the exact structure of
`and parties to any contract with a third party developer engaged for any such Conversion; provided that
`such contract must ensure that (x) sole and exclusive ownership of all Licensor Product Intellectual
`Property created or developed by the third party developer shall be fully transferred and assigned to
`Licensor without any payment of compensation to the third party developer and Licensor shall thereafter
`own all rights to improvements, additions, and modifications to and enhancements and derivatives of
`the Licensor Product Intellectual Property; and (y) the third party developer or Activision, as applicable,
`shall, upon Licensor's request, take any step that Licensor may reasonably require to ensure that all
`Licensor Product Intellectual Property created or developed by the third party developer is assigned to
`Licensor, including the execution and delivery to Licensor an assignment of rights with respect to the
`Licensor Product Intellectual Property substantially in the form reasonably specified by Licensor.
`
`All ancillary market opportunities in connection with the Products including, without limitation, all linear
`media deals (e.g., films), book publishing and traditional licensing and merchandising (collectively,
`"Ancillary Markets"), shall be led by Licensor, but subject to the mutual approval of the parties hereto.
`Ancillary Markets shall specifically exclude soundtrack and/or music publishing related arrangements in
`connection with the Products, which such rights are exclusively reserved to Licensor.
`
`During the Distribution Term, Activision and its Affiliates shall have a royalty-bearing, non-transferable
`(except as set forth in Section 21.13), non-sublicensable (except as set forth in Section 5.3) right and
`license in the Territory under all Intellectual Property (as such term is defined in Section 6.1) laws to
`utilize the Licensor Product Intellectual Property (as such term is defined in Section 6.2) to the extent
`necessary to exercise its exclusive rights under Section 5, including, subject to the limitations set forth
`in this Agreement, in the event of the approved development of any Conversions by an Activision
`internal studio or third party developer in accordance with Section 5.4, having access to and use of
`relevant source and object code, Game Assets (as such term is defined in Section 6.2), technology,
`engines, characters, settings, storylines, and other Intellectual Property that is Licensor Product
`Intellectual Property solely in connection with, and for the purpose of and to the extent necessary for,
`the development of any Conversions not developed, but approved, by Licensor.
`
`5.5
`
`5.6
`
`6. Ownership
`
`6.1.
`
`For purposes of this Agreement, the term "Intellectual Property" shall mean, regardless of form, know(cid:173)
`how, techniques, inventions, discoveries, improvements, methods, processes, patents, patent rights,
`patent registrations and applications, renewals, continuations and extensions thereof, published and
`unpublished works of authorship, art, copyrightable materials and copyrights, titles, computer code,
`designs, themes, objects, buildings and architecture, automobiles, characters, character names, stories,
`dialog, catch phrases, locations, game play, rules, concepts, artwork, animation, sounds, musical
`compositions, sound recordings, graphics and visual elements and other works, audio-visual effects and
`other works, methods of operation, databases, collective works, compilations, literary works and any
`related documentation, copyright registrations and applications, renewals and extensions therefor, mask
`works, industrial rights, words, names, symbols, devices, designs, and other designations, and
`combinations of the preceding items, used to identify or distinguish a business, good, group, product, or
`service, trademarks, service marks, trade names, logos, trademark registrations and applications,
`renewals and extensions therefor, rights in information that is not generally known or readily
`ascertainable, trade secrets, rights in trade dress, product designs, product features, and packaging,
`publicity, personality and privacy rights, rights of attribution and integrity and other similarly afforded
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`6.2.
`
`"moral" rights, and all other forms of intellectual property and proprietary rights recognized by the u.s.
`or any other countries in the Territory, or under any foreign and internationalla'vvs, treaties and
`conventions.
`
`Subject to the licenses granted to Activision in Section 5 of this Agreement and Activision's rights to
`obtain ownership or licensing thereof pursuant to Sections 6.3 and 6.4, Licensor shall retain all rights,
`title and interest (including all rights in the Intellectual Property related thereto or embodied therein and
`the right to seek damages for past and future infringement) in and to the Destiny Property and the
`Products and Conversions, including all source and object code, Game Assets, technology, engines,
`packaging and marketing materials, characters, settings, storylines, etc. relating thereto now existing or
`hereafter created by Licensor, Activision, an Activision Affiliate, a sublicensee, or any third party
`(collectively, the "Licensor Product Intellectual Property"), but specifically excluding (a) any
`Intellectual Property owned or controlled by Activision before the Effective Date; (b) any non-Game
`Assets solely developed by or for Activision; and (c) any improvements, additions, and modifications to
`and enhancements and derivatives of the materials described in the immediately preceding clauses (a)
`and (b) (collectively, the "Activision Product Intellectual Property"). Activision hereby grants to
`Licensor a non-exclusive, royalty-free license, without the right of sublicense (except in accordance with
`the same procedures for sublicensing by Activision set forth in Section 5.3) to (A) use the Activision
`Product Intellectual Property for purposes of developing the Products during the Development Term as
`provided in this Agreement and (8) use non-Game Assets that are Activision Product Intellectual
`Property and that are incorporated into a Product only in the Products (and not in any other products)
`during and after the Development Term of this Agreement pursuant to Sections 17.1 (iii) and 17.5. For
`the avoidance of doubt, the license granted in clause (8) of the immediately preceding sentence does
`not permit use of the non-Game Assets that are Activision Intellectual Property in any products dther
`than the Products in which such non-Game Assets are incorporated. Subject to the immediately
`preceding sentence, Activision shall retain all rights, title and interest in and to the Activision Product
`Intellectual Property. Subject to the licenses granted to Activision in Section 5 and Activision's rights to
`obtain ownership or licensing thereof pursuant to Sections 6.3 and 6.4, (x) Activision, on behalf of its
`Affiliates, sublicensees, agents and contractors, hereby assigns to Licensor the sole and exclusive
`ownership of all right, title and interest (including rights in Intellectual Property and the right to seek
`damages for past and future infringement) in and to all Licensor Product Intellectual Property created by
`Activision, its Affiliates, sublicensees,agents and/or contractors, whether solely or jointly with Licensor
`or any other person, without any payment of compensation; (y) Licensor shall own all rights to
`improvements, additions, and modifications to and enhancements and derivatives of the Licensor
`Product Intellectual Property; and (z) Activision shall, upon Licensor's request, take any step that
`Licensor may reasonably require to ensure that, as described in clauses (x) and (y) above, all Licensor
`Product Intellectual Property created by Activision or its Affiliates, sublicensees, agents and/or
`contractors, whether jointly or solely with Licensor or any other person and improvements, additions,
`and modifications to and enhancements and derivatives of the Licensor Product Intellectual Property
`created by Activision or its Affiliates, sublicensees, agents and/or contractors, whether jointly or solely
`with Licensor or any other person, are assigned to Licensor, including the execution and delivery to
`Licensor of an assignment of rights with respect to such Licensor Product Intellectual Property
`substantially in the form specified by Licensor. "Game Assets" means (i) all text, video, visual displays,
`scripts, literary treatments, characters, backgrounds, environments, rules and play patterns, and other
`eiements visibie to the user oi a game or other product; (ii) all sounds, sound effects, sound tracks, and
`other elements audible to the user of a game or other product; (iii) all methods in which the user
`interacts with the characters, backgrounds, environments, or other elements of a game or other product;
`and (iv) the distinctive and particular elements of graphic design, organization, presentation, look and
`feel, layout, user interface, navigation, trade dress, and stylistic convention (including the dig.ital
`implementations thereof) within a game or other product and the total appearance and impression
`substantially formed by the combination, coordination and interaction of these elements (i.e., the "look
`and feel").
`
`6.3.
`
`If (i) Activision terminates this Agreement due to the business cessation or bankruptcy of Licensor
`pursuant to Section 17.3, (ii) Activision terminates this Agreement pursuant to Section 17.2 prior to the
`Licensor's delivery of the Release to Certification Version (as such term is defined in Section 9.1) of
`Destiny Game #1 on the Xbox 360, or (iii) Activision terminates this Agreement during the development
`of Destiny Game #1 on the Xbox 360 due to Licensor's failure to cure a Critical Risk (as such term is
`defined in Section 8.2) (or failure to deliver to Activision an acceptable mitigation plan therefor) pursuant
`to Section 8.2 prior to the delivery of Destiny Game #1 on the Xbox 360, then (a) exclusive ownership of
`the Game Assets that are Licensor Product Intellectual Property excluding Third Party Elements (as
`such terrn is defined in Section 14.1.2) and LiCensor's rights and licenses to Third Party Elements shall
`
`Bungie Development and Publishing Agreement (Destiny)v11
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`6
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`cc
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`HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL'S EYES ONLY
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`ACT -WZ08638538
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`Ex. 2002
`Page 6 of 27
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`6.4.
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`be fully transferred and assigned to Activision without any payment of compensation to Licensor and
`Activision shaii thereafter own aii rights to