Exhibit 10.1
AMENDMENT TO THE
XBOX 360 PUBLISHER LICENSING
AGREEMENT
(Platinum/Classic Hits
Program)
This Amendment to the Xbox 360
Publisher License Agreement (this “Amendment”) is
entered into and effective as of October 1, 2006 (the
“Amendment Effective Date”) by and between Microsoft
Licensing, GP,a Nevada general partnership
(“Microsoft”), and THQ Inc. (“Publisher”),
and supplements that certain Xbox 360 Publisher License
Agreementbetween the parties dated as of October 31, 2005, as
amended (the “Xbox 360 PLA”).
RECITALS
A.
Microsoft and Publisher entered into the Xbox 360 PLA to establish
the terms under which Publisher may publish video games for
Microsoft’s Xbox 360 video game system.
B.
The parties now wish to amend certain terms of the Xbox 360 PLA for
Publisher’s continued manufacture and distribution of video
games for the Xbox 360.
Accordingly, for and in
consideration of the mutual covenants and conditions contained
herein, and for other good and valuable consideration, receipt of
which each party hereby acknowledges, Microsoft and Publisher agree
as follows:
1.
Definitions; Interpretation
1.1
“Standard FPU” means an FPU of a Software Title which
is not a Hits FPU (defined below in Section 2.1).
1.2
Except as expressly provided otherwise in this Amendment,
capitalized terms shall have the same meanings ascribed to them in
the Xbox 360 PLA or its amendments.
1.3
The terms of the Xbox 360 PLA are incorporated by reference, and
except and to the extent expressly modified by this Amendment or
any previous amendments, 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 and the Xbox
360 PLA or any prior amendments thereto, the terms of this
Amendment shall control. In the event of any conflict between
this Amendment and the Xbox 360 Publisher Guide, the terms of this
Amendment shall control.
2.
Hits Programs
2.1
Publisher may elect to participate in certain Xbox 360 Platinum or
Classic Hits or Platinum or Classic Family Hits programs
(collectively referred to herein as “Hits Programs”)
for qualified Software Titles (each unit of such Software Title
qualified and participating in a Hits Program is referred to herein
as a “Hit FPU”). If Publisher elects to
participate in a Hits Program, Publisher must provide Microsoft a)
at least **** notice of its intent to have a certain Software Title
participate in the Hits Program; and b) a completed and signed Hits
Programs Election Form in the form attached hereto as Exhibit
1 no later than **** prior to the targeted Commercial Release
of the Hit FPU. If a Software Title meets the applicable
participation criteria in a particular Sales Territory at the time
of the targeted Commercial Release date of the Hit FPU and
Microsoft receives the Hits Programs Election Form on time,
Publisher is authorized to manufacture and distribute Hit FPUs in
such Sales Territory and at the royalty rate in Table 2 of Section
3 of this Amendment applicable to “Hit 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:
2.1.1
For all Hits Programs, the Software Title must have been
commercially available as a Standard FPU in the applicable Sales
Territory for at least **** but not more than ****.
Notwithstanding the foregoing, a Software Title intended to qualify
as a Hit FPU in the Japan or Asian Sales Territories during the
period starting on the Amendment Effective Date until **** may
qualify after ****.
* Confidential portion omitted and
filed separately with the Securities and Exchange
Commission.
1
2.1.2
To qualify as a Platinum or Classic Family Hit, the Software Title
must (i) have received an “E,” or, in the event such
rating is officially adopted by the ESRB, an “E10”
rating from the ESRB; a “PEGI 3+” or “PEGI
7+” rating in Europe, an “A: All Ages” rating
from CERO in Japan and/or an equivalent rating in the applicable
Sales Territory (to the extent Software Titles are rated by
regulatory boards within the applicable Sales Territory); and (ii)
be character based and/or appeal, as determined by Microsoft in its
sole good faith discretion, to children 12 years of age and
younger. Notwithstanding the foregoing, annual sports titles
will not qualify for the Platinum Family Hits program.
2.1.3
In any calendar year in a Sales Territory, Publisher may not
publish more than **** Software Titles as part of the Platinum or
Classic Hits Family Program.
2.1.4
As of the date Publisher wishes to Commercially Release the
Software Title as a Hits FPU, Publisher must have manufactured the
following minimum quantities of Standard FPUs of the Software Title
for the applicable time period, Sales Territory and Hits
Program.
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2.1.5&nbs
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