1.4.3                         “ Hit(s) FPU ” means each unit of a Software Title that is qualified and participating in a Hits Program.

 

1.4.4                         “ Hits Program(s) ” mean Xbox 360 Platinum or Classic Hits and/or the Xbox 360 Family Hits programs.

 

1.4.5                         “Hits Software Title ” means any Software Title that qualifies to participate in the Hits Program pursuant to Section 2 of Exhibit 1 attached hereto.

 

1.4.6                         “ Standard FPU ” means an FPU of a Software Title that is not a Hits FPU.

 

1.4.7                         “ Standard Software Title ” means any Software Title that is not a Hits Software Title or an Expansion Pack.

 

1.4.8                         “ Threshold Price ” means the Wholesale Price (WSP) in the case of the North American, European, and Asian Sales Territories, or Suggested Retail Price (SRP) in the Japan Sales Territory at which Publisher intends to sell the Software Title.  If the Software Title is bundled with any other product or service that is not another Software Title, the Threshold Price will be the applicable WSP or SRP for the entire bundle.

 

1.5                                  Except as expressly provided otherwise in this Amendment, capitalized terms shall have the same meanings as those ascribed to them in the Xbox 360 PLA.

 

2.                                       Term

 

Section 17.1 of the Xbox 360 PLA is hereby amended and restated in its entirety as follows:

 

“ 17.1                Term .  The term of this Agreement shall commence on the Effective Date and shall continue until six (6) years after such date that the Xbox 360 is first commercially released by Microsoft in the United States.  Unless one party gives the other notice of non-renewal within sixty (60) days of the end of the then-current term, this Agreement shall automatically renew for successive one-year terms.”

 

3.                                       Pre-Certification

 

Section 4.1.2 of the Xbox 360 PLA is hereby amended and restated in its entirety as follows:

 

“4.1.2  Pre-Certification.  If the Concept is approved, Publisher may, at Publisher’s option, deliver to Microsoft a code-complete version of the Software Title or Online Content that includes all current features of the Software Title and such other content as may be required under the Xbox 360 Publisher Guide.  Upon receipt thereof and payment by Publisher of the applicable Pre-Certification fee as set forth in the Xbox 360 Publisher Guide, Microsoft shall conduct technical screen and/or other testing of the Software Title or Online Content consistent with the Xbox 360 Publisher Guide and will subsequently provide Publisher with advisory feedback regarding such testing.”

 

4.                                       Exhibits

 

4.1                                  Exhibits 1, 2 and 3 of the Xbox 360 PLA are hereby amended and restated in their entirety as attached hereto. Exhibit 6 (Japan/Asian Royalty Incentive Program) of the Xbox 360 PLA has expired.  Exhibits 6, 8 and 9 attached hereto are hereby added to the Xbox 360 PLA.

 

4.2                                  The term of the Xbox 360 Live Incentive Program attached as Exhibit 7 of the Xbox 360 PLA (the “Original Live Incentive Program”) is hereby extended until December 31, 2008.  Effective January 1, 2009, the Original Live Incentive Program is replaced by the Xbox Live and PDLC Incentive Program attached as Exhibit 7 to this Amendment.

 

5.                                       Non-Disclosure

 

Section 13.1 of the Xbox 360 PLA is hereby deleted and replaced by the following:

 

2

 

“13.1                      “ Non-Disclosure Agreement .  The information, materials and software exchanged by the parties hereunder or under an XDK License, including the terms and conditions hereof and of the XDK License, are subject to the Non-Disclosure Agreement between the parties attached hereto as Exhibit 5 (the “Non-Disclosure Agreement”), which is incorporated herein by reference; provided, however, that for purposes of the foregoing, any time limitation in the Non-Disclosure Agreement on the parties’ obligations to refrain from disclosing information protected under the Non-Disclosure Agreement (“Confidential Information”) shall be extended so that any Confidential Information provided in relation to this Agreement or by way of the XDK License in whatever form (e.g. information, materials, tools and/or software exchanged by the parties hereunder or under an XDK License), including the terms and conditions hereof and of the XDK License, unless otherwise specifically stated, will be protected from disclosure for as long as it remains confidential.”

 

6.                                       Promotions

 

6.1                                  Token Promotions .  In the event Publisher desires to distribute password-protected codes representing “tokens” (a “Token Promotion”) that are redeemable by users for Online Content downloads from Xbox Live (“Content Tokens”) as part of promotional activities related to a Software Title using Xbox Live Marketplace, Publisher shall submit to Microsoft a Content Token Request form available in the Xbox 360 Publisher Guide (“Token Form”) for approval by Microsoft.  Upon approval by Microsoft, Publisher will pre-pay all applicable fees as set forth in the Xbox 360 Publisher Guide, or Microsoft may****.  As soon as ****, Microsoft shall create Content Tokens and deliver them to Publisher.  Publisher may distribute the Content Tokens for the Content download solely as part of the Token Promotion within the Sales Territory and during the term of the Token Promotion specified on the Token Form.  No other payments under the Xbox 360 PLA (MS Points or otherwise) will be paid with respect to the Content Tokens. Publisher shall be solely responsible for all aspects of marketing and fulfillment of the Token Promotion, including without limitation all advertising and other promotional materials related to the Token Promotion which shall be deemed Marketing Materials.

 

6.2                                  Joint  Promotions.   Microsoft and Publisher may from time to time agree to develop, execute, and administer promotions involving the Software Title(s) (e.g., Play and Win weekends for the Software Titles on Xbox LIVE, promotional sweepstakes involving the Software Titles, etc.) (each, a “Promotion”).  In connection therewith, Microsoft and Publisher shall mutually agree upon and execute a promotion schedule to this Agreement in the form set forth in the Xbox 360 Publisher Guide (each, a “Promotion Schedule”).  The parties agree that the following additional terms and conditions shall apply to each Promotion for which a Promotion Schedule has been fully executed: ****.

 

7.                                       Online Content Samples.

 

7.1                                  Xbox LIVE Arcade .  For each piece of Online Content that is an Xbox LIVE Arcade game, Microsoft will be entitled to create **** Content Tokens, **** of which Microsoft will provide to the Publisher and **** of which Microsoft may use in marketing, as product samples, for customer support, testing and archival purposes.  Publisher shall not be entitled to any Royalty Fee or other compensation with respect to Microsoft’s distribution of Content Tokens as authorized under this Section 7.1.

 

7.2                                  Premium Online Content .  For each piece of Premium Online Content, Microsoft will be entitled to create up to **** Content Tokens, which Publisher and Microsoft may use in marketing, as product samples, for customer support, testing and archival purposes (the Content Tokens will be split approximately **** between Publisher and Microsoft respectively).  Publisher shall not be entitled to any Royalty Fee or other compensation with respect to Microsoft’s distribution of Content Tokens as authorized under this Section 7.2

 

8.                                       Online Content

 

Notwithstanding any termination or expiration of Microsoft’s license to distribute Online Content, Publisher acknowledges and agrees that Microsoft will retain a copy of Online Content, and Publisher hereby grants Microsoft the license to redistribute the final version of any Online Content to Xbox Live Users who have previously purchased it, directly or indirectly, from Microsoft.

 

 

* Confidential portion omitted and filed separately with the Securities and Exchange Commission.

 

3

 

9.                                       Minimum Order Quantities

 

9.1                                  The MOQ per Software Title set forth in Section 7.5.1 of the Xbox 360 PLA for the North American Sales Territory is hereby increased to ****.

 

9.2                                  Section 7.5.2 of the Xbox 360 PLA is hereby amended and restated as follows:

 

“7.5.2                                           For the purposes of this section, a “Disc” shall mean an FPU that is signed for use on a certain defined range of Xbox 360 hardware, regardless of the number of languages or product skus contained thereon.  Publisher must meet the MOQs independently for each Sales Territory.  For example, if an FPU is released in both the North American Sales Territory and the European Sales Territory, then the Publisher must place orders to manufacture (i) at least **** FPUs for sale in the North American Sales Territory, including a minimum of **** per Disc included in such FPUs, and (ii) **** FPUs for the European Sales Territory, including a minimum of **** per Disc included in such FPUs.”

 

10.                                  Except and to the extent expressly modified by this Amendment No. 2, the Xbox 360 PLA shall remain in full force and effect and is hereby ratified and confirmed.   In the event of any conflict between this Amendment No. 2 and the Xbox 360 PLA the terms of this Amendment shall control.

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the Amendment Effective Date.

 

 

MICROSOFT LICENSING, GP		THQ, Inc.
By (sign)		By (sign)
Name (Print)		Name (Print)
Title		Title
Date (Print mm/dd/yy)		Date (Print mm/dd/yy)

 

 

* Confidential portion omitted and filed separately with the Securities and Exchange Commission.

 

4

 

EXHIBIT 1

 

PAYMENTS

 

1.                                       Platform Royalty

 

a.                                        For each FPU manufactured during the term of this Agreement, Publisher shall pay Microsoft nonrefundable royalties in accordance with the royalty tables set forth below (Tables 1 and 2) and the “Unit Discount” table set forth in Section 1.d of this Exhibit 1 (Table 3).

 

b.                                       To determine the applicable royalty rate for a particular Software Title that will be sold in a particular Sales Territory, the applicable Threshold Price from Table 1 below for the category of Software Title (Standard Software Title, Hits Software Title and Expansion Pack) will determine the correct royalty “Tier” (except with respect to the first Commercial Release of Hits Software Titles as described further in (ii) below).  The royalty rate is then as set forth in Table 2 based on such Tier and the Sales Territory in which the FPUs will be sold.  For example, assume the Wholesale Price of a Standard Software Title to be sold in the European Sales Territory is ****.  According to Table 1, **** royalty rates will apply to that Software Title and the royalty rate for each FPU as set forth in Table 2 is ****.

 

 

 

* ****.

 

 

* ****.

 

 

* Confidential portion omitted and filed separately with the Securities and Exchange Commission.

 

5

 

c.                                        Setting the Royalty .

 

(i)                                      Standard Software Titles and Expansion Packs . Publisher shall submit to Microsoft, at least **** before placing the first manufacturing order for a Standard Software Title or an Expansion Pack, a completed and signed “Xbox 360 Royalty Tier Selection Form” in the form attached to this Agreement as Exhibit 2 for each Sales Territory.  The selection indicated in the Xbox 360 Royalty Tier Selection Form will only be effective once it has been approved by Microsoft.  If a Standard Software Title or Expansion Pack does not have an approved Xbox 360 Royalty Tier Selection Form as required hereunder (e.g. as a result of the Publisher not providing a Xbox 360 Royalty Tier Selection Form or because Microsoft has not approved the Xbox 360 Royalty Tier Selection Form), the royalty rate for such Standard Software Title will default to **** or for such Expansion Pack will default to ****, regardless of the actual Threshold Price (i.e., if Microsoft does not approve an Xbox 360 Royalty Tier Selection Form because it is filled out incorrectly, the royalty rate will default to ****).  Except as set forth in Section 2 (Hits Programs), the selection of a royalty tier for a Standard Software Title or Expansion Pack in a Sales Territory is binding for the life of that Software Title or Expansion Pack even if the Threshold Price is reduced following the Software Title’s Commercial Release.

 

(ii)                                   Hits Software Title .  Publisher shall submit to Microsoft, at least **** prior to the targeted Commercial Release of the Hits Software Title a completed and signed Hits Programs Election Form in the form attached hereto as Exhibit 6 for each Sales Territory.  The Hits Programs Election Form will only be effective once it has been approved by Microsoft.  If a Hits Software Title does not have an approved Hits Programs Election Form as required hereunder (e.g. as a result of the Publisher not providing a Hits Programs Election Form or because Microsoft has not approved the Hits Programs Election Form), the royalty rate for such Hits Software Title will default to **** (i.e., if Microsoft does not approve a Hits Programs Election Form because it is filled out incorrectly, the royalty rate will default to ****).  Unless the Software Title is a Family Hits Title, the first time a Software Title is Commercially Released as a Hits Software Title, the **** royalty rate will apply.  However, if the Software Title is a Family Hits Title and meets the WSP requirements set forth in Table 1 above, Publisher may select the **** royalty rate.  For the avoidance of doubt, all Hits Software Titles for the European Sales Territory shall default to the **** royalty rate.

 

Beginning **** after the Commercial Release of a Hits Software Title at the **** royalty rate, Publisher may elect to change the previously elected royalty rate for such Hits Software Title to **** in a specific Sales Territory provided that the Hits Software Title has a WSP or SRP that meets the requirements for **** royalty rate in Table 1 above. Publisher must submit to Microsoft, at least **** before placing the first manufacturing order for the applicable Hits Software Title, a completed Xbox 360 Royalty Tier Migration Form  (a “Tier Migration Form”) set forth in Exhibit 8 for each Sales Territory. The change in royalty rate will only apply to manufacturing orders for such Hits Software Title placed after the relevant Tier Migration Form has been approved by Microsoft.

 

(iii)                              Cross Territory Sales .  Except for FPUs manufactured pursuant to Section 5 below (Asia Simship Program), Publisher may not sell FPUs in a certain Sales Territory that were manufactured for a different Sales Territory.  For example, if Publisher were to manufacture and pay royalties on FPUs designated for sale in the Asian Sales Territory, Publisher could not sell those FPUs in the European Sales Territory.

 

d.                                       Unit Discounts .   Publisher is eligible for a discount to FPUs manufactured for a particular Sales Territory (a “Unit Discount”) based on the number of FPUs that have been manufactured for sale in that Sales Territory as described in Table 3 below.   Except as provided in Section 5 below, units manufactured for sale in a Sales Territory are aggregated only towards a discount on FPUs manufactured for that Sales Territory; there is no worldwide or cross-territorial aggregation of units for a particular Software Title.  The discount will be rounded up to the nearest Cent, Yen or hundredth of a Euro.

 

Table 3: Unit Discounts
****	****	****	****	****
****	****	****	****	****
****	****	****	****	****
****	****	****	****	****
****	****	****	****	****
****	****	****	****	****

 

 

* Confidential portion omitted and filed separately with the Securities and Exchange Commission.

 

6

 

* The revised Unit Discounts for the Japan Sales Territory will only be effective for Software Titles that are initially manufactured for the Japan Sales Territory after the Amendment Effective Date.  All Software Titles initially manufactured prior to the Amendment Effective Date are subject to the Unit Discounts set forth in the Xbox 360 PLA prior to this Amendment.

 

2.                                       Hits Programs

 

a.                                        If a Software Title meets the criteria set forth below and the applicable participation criteria in a particular Sales Territory at the time of the targeted Commercial Release date of the Hits FPU and Microsoft receives the Hits Programs Election Form within the time period set forth in Section 2.a.iv below, Publisher is authorized to manufacture and distribute Hits FPUs in such Sales Territory and at the royalty rate in Table 2 of Section 1 above applicable to Hits FPUs.  In order for a Software Title to qualify as a Hits FPU in a Sales Territory, the following conditions, as applicable per Hits Program, must be satisfied:

 

i.                                           the Software Title must have been commercially available as a Standard FPU in the applicable Sales Territory for at least **** but not more than **** at the time of Commercial Release of the Hits FPU.

 

ii.                                        In any calendar year in a Sales Territory, Publisher may not publish more than **** Software Titles as a Family Hit.

 

iii.                                     The Threshold Price for the Hits FPU must not exceed a maximum Threshold Price for the relevant Sales Territory (**** for the North American Sales Territory, **** in the European Sales Territory, **** in the Japan Sales Territory, or the equivalent of **** for the Asian Sales Territory).

 

iv.                                 Publisher must provide notice to Microsoft, at least **** prior to the targeted Commercial Release, of its intent to have a certain Software Title participate in the Hits Program by providing Microsoft with a completed Hits Program Election Form.

 

b.                                       As of the date Publisher wishes to Commercially Release the Software Title as a Hits FPU, Publisher must have manufactured the following minimum FPUs of the Software Title as a Standard Software Title for the applicable time period, Sales Territory and Hits Program.

 

Table 1: Manufacturing Requirements
From the Amendment Effective Date to March 31, 2009
	****	****	****	****
****	****	****	****	****
****	****	****	****	****
****
****	****	****	****	****
****	****	****	****	****

 

c.                                        All Marketing Materials for a Hits Software Title must comply with all Microsoft branding requirements as may be required in each Sales Territory, and Publisher shall submit all such Marketing Materials to Microsoft for its approval in accordance with the Xbox 360 PLA.  Notwithstanding the foregoing, all Hit FPUs must comply with the basic branding and other requirements for Marketing Materials set forth in the Xbox 360 Publisher Guide.

 

d.                                       The Hit FPU version must be the same or substantially equivalent to the Standard FPU version of the Software Title.  Publisher may modify or add additional content or features to the Hit FPU version of the Software Title (e.g., demos or game play changes) subject to Microsoft’s review and approval, and Publisher acknowledges that any such modifications or additions may require the Software Title to be re-Certified at Publisher’s expense.

 

e.                                        Publisher acknowledges that Microsoft may change any of the qualifications for participation in a Hit Program upon **** advanced written notice to Publisher.

 

 

* Confidential portion omitted and filed separately with the Securities and Exchange Commission.

 

7

 

3.                                       Payment Process

 

Publisher will pre-pay all royalties owed to Microsoft for all FPUs manufactured by its Authorized Replicator, in United States dollars for all FPUs manufactured for sale in the North American Sales Territory, in Euros for all FPUs manufactured for sale in the European Sales Territory and in Yen for all FPUs manufactured for sale in the Japan and Asian Sales Territories.  Publisher shall not authorize its Authorized Replicators to begin production until such time as ****.  Depending upon Publisher’s credit worthiness, Microsoft may, but is not obligated to, offer Publisher credit terms for the payment of royalties due under this Agreement within **** from invoice creation.    All payments will be made by wire transfer only, in accordance with the payment instructions set forth in the Xbox 360 Publisher Guide.

 

4.                                       Billing Address

 

a.                                        Publisher may have only two “bill to” addresses for the payment of royalties under this Agreement, one for FPUs manufactured by Authorized Replicators located in the North American Sales Territory and one for FPUs manufactured by Authorized Replicators located in the Japan Sales Territory and Asian Sales Territory.  If Publisher desires to have a “bill-to” address in a European country, Publisher (or a Publisher Affiliate) must execute an Xbox 360 Publisher Enrollment Form with MIOL within ten (10) business days prior to establishing a billing address in a European country in the form attached to this Agreement as Exhibit 3 .

 

Publisher’s billing address(es) is as follows:

 

North American Sales Territory:			Japan and Asian Sales Territory (if different than the North American billing address):
Name:			Name:
Address:			Address:
Attention:			Attention:
Email address:			Email address:
Fax:			Fax:
Phone:			Phone:

 

5.                                       Asia Simship Program

 

The purpose of this program is to encourage Publisher to release Japanese, North American or European FPUs, that have been multi-region signed to run on NTSC-J boxes (hereinafter collectively referred to as “Simship Titles”), in Hong Kong, Singapore, Korea and Taiwan (referred to as “Simship Territory”) at the same time as Publisher releases the Software Title in the Japan, European and/or North American Sales Territories.  In order for a Software Title to qualify as a Simship Title, Publisher must Commercially Release the Software Title in the Simship Territory on the same date as the Commercial Release date of such Software Title in the Japan, European and/or North American Sales Territories, wherever the Software Title was first Commercially Released (referred to as “Original Territory”).  To the extent that a Software Title qualifies as a Simship Title, the applicable royalty tier (under Section 1.b of this Exhibit 1 above) and Unit Discount (under Section 1.d of this Exhibit 1 above) is determined as if all FPUs of such Software Title manufactured for distribution in both the Original Territory and the Simship Territory were manufactured for distribution in the Original Territory.  For example, if a Publisher initially manufactures **** FPUs of a Software Title for the Japan Sales Territory and simships **** of those units to the Simship Territory,