Exhibit 10.2

 

[***] INDICATES MATERIAL THAT WAS OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT WAS REQUESTED. ALL SUCH OMITTED MATERIAL WAS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO THE RULES APPLICABLE TO SUCH CONFIDENTIAL TREATMENT REQUEST.

 

AMENDMENT NO. 4 TO THE

 

XBOX ONE PUBLISHER LICENSE AGREEMENT

 

(MOQ, TERM, SIMSHIP, VARIOUS INCENTIVE PROGRAMS, AND XPA)

 

This Amendment to the Xbox One Publisher License Agreement (this “Amendment”) is effective as of [***] (the “Amendment Effective Date”) by and between Microsoft Corporation, a Washington corporation (“Microsoft”), and Take-Two Interactive Software, Inc. a Delaware corporation, (“Publisher”), and amends and supplements that certain Xbox One Publisher License Agreement between the parties dated as of [***], as amended (the “Xbox One PLA”).

 

RECITALS

 

A.            Microsoft or its affiliates provide a family of computer game and entertainment systems, including the Xbox One, Xbox One S, Xbox One Scorpio and their successors and variants (collectively, “Xbox One”), and an associated proprietary online service (“Xbox Live”).

 

B.            Publisher is a game developer and publisher of software for computer game and entertainment systems. Publisher intends to develop and/or publish software products for Xbox One on the terms in the Xbox One PLA.

 

C.            The parties now wish to amend certain terms of the Xbox One PLA as set forth below.

 

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.  Unless defined in this Amendment, capitalized terms shall have the same meanings as those ascribed to them in the Xbox One PLA.  The following definition is hereby deleted and replaced with:

 

[***]

 

2.                                      Samples.  Section 7.4 of the Xbox One PLA shall be deleted in its entirety and replaced with the following:

 

7.4   Samples.  For each Software Title published under this Agreement, Publisher will provide a [***] of samples (as per the Publisher Guide, but not to exceed [***] FPU copies and [***] DFU copies per Software Title per Sales Territory in which the Software Title will be Commercially Released, and no more than [***] samples of any “Special” or “Limited” edition versions). Microsoft may use such samples for [***]. Any use of such samples for marketing use will be subject to Section 10.5. Publisher will [***] for [***]. Publisher will [***] with respect to [***] as authorized under this Section 7.4.

 

3.                                      Minimum Order Quantities.  Section 7.10 of the Xbox One PLA shall be deleted in its entirety and replaced with the following:

 

7.10                  Minimum order quantities.  [***], Publisher’s first FPU order for a Software Title must at least meet the full minimum order quantities (“MOQs”) as described below and in the Publisher Guide. Microsoft may

 











 

[***] INDICATES MATERIAL THAT WAS OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT WAS REQUESTED. ALL SUCH OMITTED MATERIAL WAS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO THE RULES APPLICABLE TO SUCH CONFIDENTIAL TREATMENT REQUEST.

 

update and revise the MOQs [***], which will be effective starting the following July 1. Current MOQs are set forth in Table 1 below. Publisher must meet 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, Publisher must place orders to manufacture: (1) at least [***] FPUs for sale in the North American Sales Territory, and (2) at least [***] FPUs for sale in the European Sales Territory.  Furthermore, within the MOQ for a Sales Territory, separate language SKUs may be aggregated to meet the Sales Territory MOQ.  For example, Publisher will meet the European Sales Territory MOQ if it manufactures at least [***] English-language FPUs and [***] Spanish-language FPUs for a total of at least [***] FPUs. For clarity, [***].

 

Table 1: Minimum Order Quantities

 

	
Sales Territory
    	
 
    	
Per FPU
    
	
North American Sales Territory
    	
 
    	
[***]
    
	
European Sales Territory
    	
 
    	
[***]
    
	
Japan Sales Territory
    	
 
    	
[***]
    
	
Asian Sales Territory
    	
 
    	
[***]
    
	
Australian Sales Territory
    	
 
    	
[***]
    
	
South American Sales Territory
    	
 
    	
[***]
    


 

4.                                      Payment for MOQ shortfall.  Section 7.10.1 of the Xbox One PLA shall be deleted in its entirety and replaced with the following:

 

7.10.1              Payment for MOQ shortfall.  On a Software Title by Software Title basis, if Publisher fails to satisfy any of the MOQ requirements set forth in Section 7.10 within [***] days after the date the FPUs are first manufactured by an Authorized Replicator for distribution in a given Sales Territory, Publisher shall, within [***], pay Microsoft a royalty equal to [***]. In the event Publisher has a credit with respect to any Software Title, Microsoft may apply such credit toward an MOQ shortfall for any Software Title upon notice to Publisher (email shall suffice).

 

5.                                      Simship with Competitive Platforms.  A new subsection 9.5 shall be added to the Xbox One PLA:

 

9.5                               [***]

 

6.                                      Term.  Section 20.1 of the Xbox One PLA shall be deleted in its entirety and replaced with the following:

 

20.1                        Term.  The term of this Agreement shall commence on the Effective Date and shall continue until [***] (“Initial Term”). This Agreement shall automatically renew for successive periods of [***] year (each a “Renewal Term”) unless and until either party gives the other notice of non-renewal no less than [***] days prior to the end of the Initial Term or then-current Renewal Term, as applicable (the Initial Term together with each Renewal Term (if any), the “Term”). If either party gives the other notice of non-renewal in accordance with this Section 20.1, the parties will agree on a plan to allow End Users who purchase Xbox Live-enabled Software Titles near the expiration date of this Agreement to access and use the Digital Content of such Software Titles on Xbox Live for a commercially reasonable time after this Agreement’s expiration.

 

2











 

[***] INDICATES MATERIAL THAT WAS OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT WAS REQUESTED. ALL SUCH OMITTED MATERIAL WAS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO THE RULES APPLICABLE TO SUCH CONFIDENTIAL TREATMENT REQUEST.

 

7.                                      Asian Language Localization Incentive.  Beginning [***], Section 1.6 of Exhibit 1 of the Xbox One PLA shall be deleted in its entirety and replaced with the following:

 

1.6                               Asian Language Localization Incentive Program.  As of [***], and continuing for the duration of the Term (unless otherwise terminated earlier by written notice to Publisher), a Software Title that is Commercially Released in the Asian Sales Territory and that meets the requirements set forth in this Section 1.6 will qualify for a reduced royalty rate under Table 3.2 of Section 1.6.3 of this Exhibit 1.

 

1.6.1                     [***]  A Software Title must meet the following requirements to qualify for [***]:

 

[***]

 

1.6.2                     [***] A Software Title qualifies for [***].

 

1.6.3                     Asian Language Localization Incentive Platform Royalty.  For up to [***] FPUs manufactured under the Asian Language Localization Incentive Program, Publisher will pay to Microsoft nonrefundable royalties per Table 3.2 of this Exhibit 1.  To determine the applicable royalty rate, [***].

 

Table 3.2:  Asian Language Localization Program Tier Discounts

 

	
 
    	
 
    	
Asian WSP
    	
 
    	
Standard
   Software Title
   Royalty Rate
    	
 
    	
[***]
    	
 
    	
[***]
    
	
Tier 1
    	
 
    	
[***]
    	
 
    	
[***]
    	
 
    	
[***]
    	
 
    	
[***]
    
	
Tier 2
    	
 
    	
[***]
    	
 
    	
[***]
    	
 
    	
[***]
    	
 
    	
[***]
    
	
Tier 3
    	
 
    	
[***]
    	
 
    	
[***]
    	
 
    	
[***]
    	
 
    	
[***]
    
	
Tier 4
    	
 
    	
[***]
    	
 
    	
[***]
    	
 
    	
[***]
    	
 
    	
[***]

 
    
	
Tier 5
    	
 
    	
[***]
    	
 
    	
[***]
    	
 
    	
[***]
    	
 
    	
[***]
    
	
Tier 6
    	
 
    	
[***]
    	
 
    	
[***]
    	
 
    	
[***]
    	
 
    	
[***]
    


 

1.6.4                     [***]

 

1.6.5                     Publisher shall submit to Microsoft, at least [***] days prior to the manufacture of FPUs of the Software Title for the Asian Sales Territory, a completed “Xbox One Asian Language Localization Tier Selection Form” for [***] in the form attached to this Agreement as Exhibit 9 (as may be updated via the Publisher Guide).  The selection in such form will be effective [***].

 

8.                                      Japan Tier Reduction Incentive Program. [***], the following new Section 1.7 (Japan Tier Reduction Incentive Program) shall be added to Exhibit 1 of the Xbox One PLA:

 

1.7                               Japan Tier Reduction Incentive Program.  [***].

 

1.7.1                     Program Qualifications for Japan Tier Reduction Incentive Program:

 

[***]

 

3











 

[***] INDICATES MATERIAL THAT WAS OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT WAS REQUESTED. ALL SUCH OMITTED MATERIAL WAS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO THE RULES APPLICABLE TO SUCH CONFIDENTIAL TREATMENT REQUEST.

 

1.7.2                     FPUs manufactured for the Japan Sales Territory that qualify for this program and in respect of which Publisher pays a reduced royalty rate [***].

 

1.7.3                     Publisher shall submit to Microsoft a completed “Xbox One Royalty Tier Selection Form” for the Japan Sales Territory in the form attached to this Agreement as Exhibit 2 (as the same may be updated in the Publisher Guide), at least [***] days prior to the manufacture of FPUs of the Software Title for the Japan Sales Territory (which, if required by the Publisher Guide, shall be done by electronic submission). The Tier selection in such form will be effective only once approved by Microsoft.  Microsoft will approve such form, or notify (email sufficient) Publisher of its rejection of such form (and the reasons therefor). If a Software Title that is to be Commercially Released in the Japan Sales Territory is not approved to qualify for the program (e.g., due to Publisher not submitting a completed “Xbox One Royalty Tier Selection Form” in accordance with the Publisher Guide), the royalty rate for such Software Title will [***].

 

9.                                      [***]

 

[***]

 

10.                               Xbox Play Anywhere. The following shall be added to Exhibit 1 of the Xbox One PLA as a new Section 8:

 

8.                                       Xbox Play Anywhere.  If a Software Title supports Xbox Play Anywhere (“XPA”), which means that the Software Title is playable on both Xbox One and Windows 10 (as further described in the Publisher Guide), then Publisher acknowledges that for XPA Software Title(s) purchased via the Xbox Games Store, the Royalty Fee set forth in Section 4 of Exhibit 1 shall be the [***].

 

11.                               Exhibits.  Exhibits 2, 6 and 9 of the Xbox One PLA are hereby amended and restated in their entirety as attached hereto.

 

12.                               Except and to the extent expressly modified by this Amendment, the Xbox One 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 One PLA the terms of this Amendment shall control.

 

4











 

[***] INDICATES MATERIAL THAT WAS OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT WAS REQUESTED. ALL SUCH OMITTED MATERIAL WAS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO THE RULES APPLICABLE TO SUCH CONFIDENTIAL TREATMENT REQUEST.

 

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

 

	
Microsoft Corporation
    	
 
    	
Take-Two Interactive Software, Inc.
    
	
 
    	
 
    	
 
    
	
Signature:
    	
/s/ Annie Neudorfer 
    	
 
    	
Signature:
    	
/s/ Dan Emerson
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Name:
    	
Annie Neudorfer
    	
 
    	
Name:
    	
Dan Emerson
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Title:
    	
Xbox Program Manager
    	
 
    	
Title:
    	
EVP & GC
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
Date:
    	
[***]
    	
 
    	
Date:
    	
[***]
    


 

5









 

EXHIBIT 2 — XBOX ONE ROYALTY TIER SELECTION FORM

 

PLEASE COMPLETE, SIGN THE FORM AND SUBMIT VIA EMAIL TO:  3PPOPS@MICROSOFT.COM WITH A CC (COPYING) TO YOUR ACCOUNT MANAGER.

 

A.            This form must be submitted [***] prior to the first manufacturing order being placed for the Software Title(s) for each respective Sales Territory.  If this form is not submitted on time, exceeds incentive limits or is rejected by Microsoft, the Royalty Rate will [***].

 

B.            [***]

 

C.            [***]

(e.g. sub-publishing, compilations, etc.)  For more information, please contact your Account Manager.

 

1.              Publisher Name:         

 

2.              Xbox One Software Title Name:         

 

3.              Date of First Commercial Release (mm/dd/yy):         

 

4.              Authorized Replicators to be used:

 

	
If more than one, please list all (name, location):
    	
 
    
	
Expected Mfg Date:
    	
Volume Forecast:
    


 

5.              Retail Edition(s): Choose an item. (Reference Edition Type when placing Authorized Replicator(s) orders) Edition Contents:

 

6.              Sales Territory:   Choose an item.

 

	
7.
    	
Select Xbox One Royalty Tier: Choose an item.
    	
WSP: 
    	
SRP (Japan only):
    


        

To determine the correct Royalty Tier and WSP or SRP (Japan only), please refer to Exhibit 1, Section 1 of the Agreement and the Publisher Guide.

 

Japan Tier Reduction Incentive Program only —  oYes, this Software Title qualifies for the program.

 

8.              For non-standard editions only —  Is the Royalty Rate for this EDITION the same as the Base Game product (Standard Edition)?  o Yes or o No   [***]

 

9.              For non-standard editions and compilations only, please provide Software Title names and Binary IDs in the sections below.

 

	
Title
    	
 
    	
Software Title Name
    	
 
    	
Binary ID
    	
 
    
	
Title 1
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Title 2
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Title 3
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Title 4
    	
 
    	
 
    	
 
    	
 
    	
 
    


 

The undersigned represents this has been approved by their Account Manager and they have authority to submit this form on behalf of the above Publisher, the information contained herein is true and [***].

 

6











 

	
 
    	
 
    
	
To avoid manufacturing   delays at your Authorized Replicator, your disc manufacturing order, intended   for the Japan Tier Reduction Incentive Program must indicate:

 

Xbox one Japan Tier Reduction   Incentive Program

 
    	
By (sign)
    
	
 
    
	
 
    
	
Name, Title (Print)
    
	
 
    
	
 
    
	
E-Mail Address (for   confirmation of receipt)
    
	
 
    
	
 
    
	
Date (Print mm/dd/yy)
    


 

7









 

EXHIBIT 6 – XBOX LIVE INCENTIVE PROGRAM

 

[***]

 

[***]

 

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

 

[***]

 

[***]:

 

[***]

 

	
[***]
    	
[***]
    	
[***]
    	
[***]
    	
[***]
    
	
[***]
    	
[***]
    	
[***]
    	
[***]
    	
[***]
    
	
[***]
    	
[***]
    	
[***]
    	
[***]
    	
[***]
    
	
[***]
    	
[***]
    	
[***]
    	
[***]
    	
[***]
    
	
[***]
    	
[***]
    	
[***]
    	
[***]
    	
[***]
    
	
[***]
    	
[***]
    	
[***]
    	
[***]
    	
[***]
    


 

[***]

 

[***]

 

[***]

 

[***]

 

	
[***]
    	
 
    	
[***]
    	
 
    	
[***]
    
	
[***]
    	
 
    	
[***]
    	
 
    	
[***]
    
	
[***]
    	
 
    	
[***]
    	
 
    	
[***]
    
	
[***]
    	
 
    	
[***]
    	
 
    	
[***]
    


 

8











 

[***]

[***]

 

[***]

[***]

 

[***]

 

[***]

 

[***]

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

9











 

EXHIBIT 9 – XBOX ONE ASIAN LANGUAGE LOCALIZATION TIER SELECTION FORM

 

Please complete and sign the form, and submit via email to 3PPOPS@microsoft.com with CC to your Account Manager or submit electronically.  If information on electronic submission is needed, contact your Account Manager.

 

A.                                    This form must be submitted at least [***] Days prior to the [***].  If this form is not submitted on time or is rejected by Microsoft, [***].

 

B.                                    Initial order must meet [***].

 

C.                                    If a Base Game edition and a non-standard edition (such as GOTY, Special, Limited, Collectors’ Editions or Compilations) will both be commercially available, [***].

 

	
1. Publisher Name:       
    	
3. Date of First   Commercial Release (mm/dd/yy):       
    
	
 
    	
 
    
	
2. Xbox One Software Title Name:       
    	
4. Final Certification Date(mm/dd/yy):       
    


 

Select Royalty Tier:

 

	
[***]
    	
[***]
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
[***]
    
	
 
    	
 
    
	
 
    	
 
    


 

The undersigned represents that he/she has authority to submit this form on behalf of the above Publisher, and that the information contained herein is true and accurate.

 

	
 
    	
 
    
	
To avoid manufacturing   delays at your Authorized Replicator, your disc manufacturing order must   include:
    	
By (sign)
    
	
 
    
	
·                  Asian Sales Territory
    	
 
    
	
·                  Asian Language Localization Program   (ALLP)
    	
     
    
	
 
    	
Name, Title (Print)
    
	
 
    	
 
    
	
 
    	
     
    
	
 
    	
 
    
	
 
    	
E-Mail Address (for   confirmation of receipt)
    
	
 
    	
 
    
	
 
    	
     
    
	
 
    	
 
    
	
 
    	
Date (Print mm/dd/yy)
    


 

10