Exhibit 10.38


 


AMENDMENT TO THE


XBOX 360 PUBLISHER
LICENSE AGREEMENT


(Russian
Incentive Program; Hits Program Revisions)


 


This Amendment to the Xbox 360 Publisher License
Agreement (this “Amendment”) is entered into and effective as of the later of
the signature dates below (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 Agreement  between the
parties dated as of October 31, 2005, as amended (the “Xbox 360 PLA”).  Microsoft Corporation, a Washington
corporation, is a party to this Amendment only with respect to its
acknowledgement of Section 6.2 and Exhibit 1, Section 6 of 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 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.


 


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.                                      Exhibits.


 


Exhibits
1, 6 and 8 of the Xbox 360 PLA are hereby amended and restated in their
entirety as attached hereto.


 


3.                                      Loaned Equipment.


 


Microsoft may from time-to-time agree to loan Publisher certain
Microsoft assets in connection with Publisher’s marketing and promotional
activities for the Software Titles. Such loaned assets may include without
limitation Xbox 360 kiosks, Xbox 360 consoles and accessories (the “Loaned
Equipment”). With respect to all Loaned Equipment provided to Publisher
hereunder, Publisher agrees that: (i) Publisher shall not provide the
Loaned Equipment to any third party unless such third party is approved by
Microsoft in advance (“Approved Third Party”) and, if so approved, Publisher
shall be responsible for ensuring that the Approved Third Party complies with
the terms of this Section 3; (ii) Publisher shall assume all
responsibility for theft, damage, loss or injuries to people or property that
occur while such Loaned Equipment is in Publisher’s and/or an Approved Third
Party’s possession, control or use; (iii) Publisher’s insurance policy set
forth in Section 16.4 of the Xbox 360 PLA shall cover all  theft,
damage, loss or injuries to people or property in connection with Publisher’s
or an Approved Third Party’s use or possession of the Loaned Equipment; (iv) Publisher
(and any Approved Third Party) shall only use power supplies, power cords,
cables, and other parts and accessories provided by Microsoft in connection
with the Loaned Equipment; and (v) Publisher shall, at its expense,
return the Loaned Equipment to Microsoft by the date requested by Microsoft and
in accordance with any shipping instructions provided by Microsoft.


 


4.                                      Content Rating.  Section 4.4 of the Xbox 360 PLA is hereby amended and
restated in its entirety:


 


“For those Sales Territories that utilize a
content rating system, Microsoft will not accept submission of a Software Title
(including any Online Content) for Certification approval unless and until
Publisher has obtained, at Publisher’s sole cost, a rating not higher than “Mature
(17+)” or its equivalent from the appropriate rating bodies and/or any and all
other independent content rating authority/authorities for the applicable Sales
Territory(ies) reasonably designated by Microsoft (such as ESRB, ELSPA, CERO,
etc.).  Publisher shall include the
applicable rating(s) prominently on FPUs and Marketing Materials, in
accordance with the applicable rating body guidelines, and shall include the
applicable rating in a header file of the Software Title and in Online Content,
as described in the Xbox 360 Publisher Guide. 
For those Sales Territories that do not utilize a content rating system,
Microsoft will not approve any Software Title or Online Content that, in its
opinion, contains excessive sexual content or violence, inappropriate language
or other elements deemed unsuitable for the Xbox 360 platform.  Microsoft will provide THQ advanced notice
via the Xbox 360 Publisher Guide whenever any new countries that do not have a
content rating system are added to Sales Territories and what, if any, content
guidelines it proposes for such


 


1

















 


country. 
If, after Commercial Release, a Software Title is determined as suitable
for adults only or otherwise as indecent, obscene or otherwise prohibited by
law, the Publisher shall at its own costs recall all FPUs.  Unless Publisher has obtained a separate
rating for Online Content and communicated such separate rating to Microsoft in
the header file of the Online Content and/or as otherwise described in the Xbox
360 Publisher Guide, Publisher warrants and represents that all Online Content
not included in the initial Software Title FPU will not be inconsistent with
the content rating (or, in those countries that do not utilize a content rating
system, with the overall nature of the content) of the underlying Software
Title.  Content rating information and
requirements may be further described in the Xbox 360 Publisher Guide.”


 


5.                                      Publisher Bankruptcy.


 


5.1   
Microsoft and Publisher agree that the rights conferred by Publisher upon
Microsoft under the Xbox 360 PLA, including, without limitation, those
described in Paragraph 6.2 of the Xbox 360 PLA, constitute a
license running from Publisher to Microsoft of a right to
intellectual property for purposes of Section 365(n) of the United
States Bankruptcy Code (11 U.S.C. 101, et seq.), and that Microsoft shall have,
in a bankruptcy proceeding in which the Publisher is a debtor, the rights of a “licensee”
as set forth in that provision.


 


5.2   
Microsoft and Publisher acknowledge and agree that, in a bankruptcy proceeding
of Publisher, and notwithstanding any other provision contained in the Xbox 360
PLA or in this Amendment, Publisher shall not have the power, absent Microsoft’s
consent, to assume or assign to a third-party any license running from
Microsoft to Publisher of any property, interest or right created in the Xbox
360 PLA or in this Amendment.  Microsoft and Publisher hereby express
their mutual intention that all such rights be purely personal
to Publisher, such that governing non-bankruptcy law shall
preclude Publisher’s assignment (and, if applicable, assumption) of those
rights without Microsoft’s consent.


 


6.                                      Sub-Publishing.  Section 10.8.1 of the Xbox 360 PLA is hereby amended
and restated in its entirety:


 


“Publisher completes and provides Microsoft
with the Sub-Publishing Notification Form (located in the Publisher Guide)
at least **** prior to authorizing a Sub-Publisher to manufacture any Software
Title(s), of the Sub-Publishing relationship, along with (i) a summary of
the scope and nature of the Sub-Publishing relationship including, without
limitation, as between Publisher and Sub-Publisher, (ii) which party will
be responsible for Certification of the Software Title(s) and/or any
Online Content, (iii) a list of the Software Title(s) for which
Sub-Publisher has acquired publishing rights, (iv) the geographic
territory(ies) for which such rights were granted, and (v) the term of
Publisher’s agreement with Sub-Publisher;, and”


 


7.                                      Except and to the extent
expressly modified by this Amendment, 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 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.


 






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


 

















 


	
  MICROSOFT LICENSING, GP

  	
   

  	
  THQ Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Astrid B.Ford

  	
   

  	
  /s/ Brian J. Farrell

  
	
  By (sign)

  	
   

  	
  By (sign)

  
	
  Astrid B.Ford

  	
   

  	
  Brian J. Farrell

  
	
  Name (Print)

  	
   

  	
  Name (Print)

  
	
  Sr. Xbox Program
  Manager

  	
   

  	
  President and CEO

  
	
  Title

  	
   

  	
  Title

  
	
  Feb 26 2010

  	
   

  	
  02-24-10

  
	
  Date (Print mm/dd/yy)

  	
   

  	
  Date (Print mm/dd/yy)

  



 


 


	
  MICROSOFT CORPORATION

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Astrid B. Ford

  	
   

  	
   

  
	
  By (sign)

  	
   

  	
   

  
	
  Astrid B. Ford

  	
   

  	
   

  
	
  Name (Print)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Sr. Xbox Program
  Manager

  	
   

  	
   

  
	
  Title

  	
   

  	
   

  
	
  Feb 26 2010

  	
   

  	
   

  
	
  Date (Print mm/dd/yy)

  	
   

  	
   

  



 














 


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 ****.


 


Table 1: Tier


 


	
   

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  
	
  ****

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  
	
  ****

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  
	
  ****

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  



 






****


 


Table 2: Royalty Rate


 


	
   

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  



 


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


 






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


 

















 


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.


 


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.                                      Russian Manufacturing Incentive Program. 
From January 1, 2010 through December 31, 2011, for Software
Titles releasing in Russia, these Software Titles may qualify for ****, even if
the Software Title qualifies for a different Tier in the rest of the European
Sales Territory, if the following requirements are met:


 


(i)                                     The **** Royalty Rate applies only to
FPUs that are sold in Russia, Poland, Hungary, and Czech Republic.


 


(ii)                                   The Xbox360 version of the Software
Title must commercially release no later than all other platform versions
including PC.


 


(iii)                             To qualify, the Software Title must be
fully localized, including voice, text, and packaging; and must not contain any
other language except Russian, Polish, Hungarian, and Czech.  The Xbox 360 version of the Software Title
must have at least localization parity with other platform versions.


 


e.                                       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.


 






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


 

















 


Table
3: Unit Discounts


 


	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  
	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  



 






*
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 of the Amendment to the Xbox 360
Publisher License Agreement (2008 Renewal; Tier C; Hits Program Revisions; Expansion Packs; New
Xbox 360 Live and PDLC Incentive Program; XLSP; Japan Volume Rebate Revision;
Token Promotions; Joint Promotions) dated October 21, 2008 (“PLA Amendment No. 2”).  All Software Titles initially
manufactured prior to the PLA Amendment No. 2 Effective Date are subject
to the Unit Discounts set forth in the Xbox 360 PLA prior to the PLA Amendment No. 2.


 


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.   For the European Sales
Territory, a Software Title releasing as a Family Hit between **** and ****
may be available as a Standard FPU in the European Sales Territory
for longer than **** at the time
of Commercial Release of the Hits FPU.


 


ii.                                       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).


 


iii.                                  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:
Hits Program Manufacturing Requirements


Effective ****


 


	
   

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  
	
  Platinum or Classic Hits

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  
	
  Family Hits

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  	
   

  	
  ****

  



 


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.


 






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


 

















 


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.


 


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
Microsoft has verified that the funds were received in its bank account.  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 **** 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:

  	
  THQ Inc.

  	
   

  	
   

  
	
  Address:

  	
  29003 Agoura Rd.

  	
  Name:

  	
   

  
	
   

  	
  Agoura Hills, CA 91301

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
   

  	
   

  
	
  Email address:

  	
   

  	
  Attention:

  	
   

  
	
  Fax:

  	
  818-871-7400

  	
  Email address:

  	
   

  
	
  Phone:

  	
  818-871-5000

  	
  Fax:

  	
   

  
	
   

  	
   

  	
  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


 






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


 

















 


Simship
Territory, the royalty rate for all of the FPUs is determined by ****.  In this example, Publisher would also receive
a ****  Unit Discount on **** units for
having exceeded the Unit Discount level specified in Section 1.d. of this Exhibit 1
above applicable to the Japan Sales Territory. 
Publisher must provide Microsoft with written notice of its intention to
participate in the Asian Simship Program with respect to a particular Software
Title at least **** prior to manufacturing any FPUs it intends to qualify for
the program.  In its notice, Publisher
shall provide all relevant information, including total number of FPUs to be manufactured,
number of FPUs to be simshipped into the Simship Territory, date of simship,
etc.  Publisher remains responsible for
complying with all relevant import, distribution and packaging requirements as
well as any other applicable requirements set forth in the Xbox 360 Publisher
Guide.


 


6.                                      Online Content.  This section applies to Microsoft Corporation
and Publisher.


 


a.                                       For
the purpose of this Section 6, the following capitalized terms have the
following meanings:


 


“MS Point” means a proprietary
form of trading value that Microsoft makes available to consumers to redeem for
goods or services from Microsoft or its partners that are distributed
online.  Microsoft reserves all rights to
determine rates, value and policies applicable to the use of MS Points.


 


“MS Points Remittance Rate”
means a rate based on which Microsoft will calculate the Royalty Fee (defined
in Section 6.b below) due Publisher for Premium Online Content  redeemed for MS Points via Xbox Live.  Each year, effective ****, Microsoft will publish
the MS Points Remittance Rate in the Xbox 360 Publisher Guide.  Notwithstanding the foregoing, from the
Amendment Effective Date, the MS Points Remittance Rate will equal ****.  Microsoft will publish an updated MS Points
Remittance Rate that will apply prospectively for each sale of Premium Online
Content during the subsequent twelve (12) months (until **** of the following
year).


 


b.                                      Publisher may, from time to time, submit
Online Content to Microsoft for Microsoft to distribute via Xbox Live.  ****. 
For each Premium Online Content item, Microsoft will pay Publisher a
royalty calculated as follows (the “Royalty Fee”).


 


c.                                       For
Premium Online Content made available for redemption with MS Points, the
Royalty Fee will equal ****.


 


d.                                      For
all other Premium Online Content, the Royalty Fee will equal ****.


 


e.                                       The
Royalty Percentage for Premium Online Content is **** percent.  Microsoft may assign a Royalty Percentage for
other categories of Premium Online Content, from time to time, as set forth in
the Xbox 360 Publisher Guide.


 


f.                                         Notwithstanding
subsections c. — e. above, ****.


 


g.                                    Within
**** after the end of **** with respect to which Microsoft owes Publisher any
Royalty Fees, Microsoft shall furnish Publisher with a statement, together with
payment for any amount shown thereby to be due to Publisher.  The statement will contain information
sufficient to discern how the Royalty Fees were computed.


 


7.                                      Xbox Live Billing and Collection


 


Microsoft
is responsible for billing and collecting all fees associated with Xbox Live,
including fees for subscriptions and/or any Online Content for which an Xbox
Live User may be charged.  ****.


 


8.                                      Third Party Royalties and Other Payments


 


Publisher acknowledges and understands that under Section 15 of
the Xbox 360 PLA, Publisher warrants and represents that Publisher has obtained
and will maintain all third-party rights, consents and licenses necessary for
the permitted exploitation of Software Title Content and Online Content under
this Agreement, including without limitation payment of: (i) all so-called
“record” royalties payable to artists, producers, engineers, mixers, A&R
executives and other royalty participants arising from or related to the sales
of Software Titles; (ii) all mechanical royalties payable to publishers of
copyrighted musical compositions embodied in Software Title Content and Online
Content;  (iii) all synchronization royalties
payable to publishers of copyrighted musical compositions embodied in Software
Title Content and Online Content; (iv) all payments that may be required
under collective bargaining agreements applicable to Publisher or its
affiliates; and  (v) any and all
other royalties, fees or other amounts required to be paid.


 






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


 

















 


9.                                      Taxes


 


a.                                       The amounts to be paid by either party to the
other do not include any foreign, U.S. federal, state, local, municipal or
other governmental taxes, duties, levies, fees, excises or tariffs, arising as
a result of or in connection with the transactions contemplated under this
Agreement including, without limitation, (i) any state or local sales or
use taxes or any value added tax or business transfer tax now or hereafter
imposed on the provision of any services to the other  party under this Agreement, (ii) taxes
imposed or based on or with respect to or measured by any net or gross income
or receipts of either party, (iii) any franchise taxes, taxes on doing
business, gross receipts taxes or capital stock taxes (including any minimum
taxes and taxes measured by any item of tax preference), (iv) any taxes
imposed or assessed after the date upon which this Agreement is terminated, (v) taxes
based upon or imposed with reference to either parties’ real and/or personal
property ownership and (vi) any taxes similar to or in the nature of those
taxes described in (i), (ii), (iii), (iv) or (v) above, now or
hereafter imposed on either party (or any third parties with which either party
is permitted to enter into agreements relating to its undertakings hereunder)
(all such amounts, together with any penalties, interest or any additions
thereto, collectively “Taxes”).   Neither
party is liable for any of the other party’s Taxes incurred in connection with
or related to the sale of goods and services under this Agreement, and all such
Taxes are the financial responsibility of the party obligated to pay such taxes
as determined by the applicable law, provided that both parties shall pay to
the other the appropriate Collected Taxes in accordance with subsection b
below. Each party agrees to indemnify, defend and hold the other party harmless
from any Taxes (other than Collected Taxes, defined below) or claims, causes of
action, costs (including, without limitation, reasonable attorneys’ fees) and
any other liabilities of any nature whatsoever related to such Taxes to the
extent such Taxes relate to amounts paid under this Amendment.


 


b.                                      Any sales or use  taxes described in a. above that (i) are
owed by either party solely as a result of entering into this Agreement and the
payment of the fees hereunder, (ii) are required to be collected from that
party under applicable law, and (iii) are based solely upon the amounts
payable under this Agreement (such taxes the “Collected Taxes”), will be stated
separately as applicable on payee’s invoices and will be remitted by the other
party to the payee, upon request payee shall remit to the other party official
tax receipts indicating that such Collected Taxes have been collected and paid
by the payee.  Either party may provide
the other party an exemption certificate acceptable to the relevant taxing
authority (including without limitation a resale certificate) in which case
payee shall not collect the taxes covered by such certificate.  Each party agrees to take such commercially
reasonable steps as are requested by the other party to minimize such Collected
Taxes in accordance with all relevant laws and to cooperate with and assist the
other party, in challenging the validity of any Collected Taxes or taxes
otherwise paid by the payor party.  Each
party shall indemnify and hold the other party harmless from any Collected
Taxes, penalties, interest, or additions to tax arising from amounts paid by one
party to the other under this Agreement, that are asserted or assessed against
one party to the extent such amounts relate to amounts that are paid to or
collected by one party from the other under this section. If any taxing
authority refunds any tax to a party that the other party originally paid, or a
party otherwise becomes aware that any tax was incorrectly and/or erroneously
collected from the other party, then that party shall promptly remit to the
other party an amount equal to such refund, or incorrect collection as the case
may be plus any interest thereon.


 


c.                                       If taxes are required to be withheld on any
amounts otherwise to be paid by one party to the other, the paying party shall
deduct such taxes from the amount otherwise owed and pay them to the
appropriate taxing authority.  At a party’s
written request and expense, the parties shall use reasonable efforts to
cooperate with and assist each other in obtaining tax certificates or other
appropriate documentation evidencing such payment, provided, however, that the
responsibility for such documentation shall remain with the payee party.  If Publisher is required by any non-U.S.A.
government to withhold income taxes on payments to Microsoft, then Publisher
may deduct such taxes from the amount owed Microsoft and shall pay them to the
appropriate tax authority, provided that within **** of such payment, Publisher delivers to
Microsoft an official receipt for any such taxes withheld or other documents
necessary to enable Microsoft to claim a U.S.A. foreign tax credit.


 


b.                                      This Section 7 shall govern the
treatment of all taxes arising as a result of or in connection with this
Agreement notwithstanding any other section of this Agreement.


 


10.                               Audit


 


During
the term of this Agreement and for **** thereafter each party shall keep all
usual and proper records related to its performance under this Agreement,
including but not limited to audited financial statements and support for all
transactions related to the ordering, production, inventory, distribution and
billing/invoicing information.  Such
records, books of account, and entries will be kept in accordance with
generally accepted accounting principles. 
Either party (the “Auditing Party”) may


 






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


 

















 


audit
and/or inspect the other party’s (the “Audited Party”) records no more than
**** in any **** period in order to verify compliance with the terms of this
Agreement.  The Auditing Party may, upon
reasonable advance notice, audit the Audited Party’s records and consult with
the Audited Party’s accountants for the purpose of verifying the Audited Party’s
compliance with the terms of this Agreement and for a period of ****
thereafter.  Any such audit will be
conducted during regular business hours at the Audited Party’s offices.  Any such audit will be paid for by Auditing
Party unless Material discrepancies are disclosed.  As used in this section, “Material” means
****.  If Material discrepancies are
disclosed, the Audited Party agrees to pay the Auditing Party for ****.


 






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


 














 


EXHIBIT 2


 


XBOX 360
ROYALTY TIER SELECTION FORM


 


PLEASE COMPLETE THE BELOW
INFORMATION, SIGN THE FORM, AND FAX IT TO MICROSOFT AT


+1 (425) 708-2300 TO THE
ATTENTION OF MICROSOFT LICENSING, GP (MSLI) AND YOUR ACCOUNT MANAGER.


 


NOTES:


1.         THIS FORM MUST BE SUBMITTED
AT LEAST **** PRIOR TO THE FIRST MANUFACTURING ORDER BEING PLACED FOR THE SOFTWARE
TITLE FOR EACH RESPECTIVE SALES TERRITORY. 
IF THIS FORM IS NOT SUBMITTED ON TIME OR IS REJECTED BY MICROSOFT,
THE ROYALTY RATE WILL DEFAULT TO **** FOR THE
APPLICABLE SALES TERRITORY.


 


2.         A SEPARATE FORM MUST
BE SUBMITTED FOR EACH SALES TERRITORY.


 


1.               Publisher Name:


 


2.               Xbox 360
Software Title Name:


 


3.     XeMID Number:


 


4.     Sales
Territory (check one):


 


o            North American Sales Territory


o            Japan Sales Territory


o            European Sales Territory


o            Russian Incentive Manufacturing
Program (See Exhibit 1 of the PLA for qualification criteria)


o            Asian Sales Territory


 


5.     Final Certification Date:


 


6.     Select Royalty Tier: (check one): ****


 


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.


 


	
   

  	
   

  
	
   

  	
  By (sign)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name, Title (Print)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  E-Mail Address (for
  confirmation of receipt)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Date (Print mm/dd/yy)

  



 






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


 

















 


EXHIBIT 6


 


XBOX 360
HITS PROGRAMS ELECTION FORM


 


PLEASE COMPLETE THE BELOW
INFORMATION, SIGN THE FORM, AND FAX IT TO MICROSOFT AT +1 (425) 708-2300 TO
THE ATTENTION OF MICROSOFT LICENSING, GP (MSLI) AND YOUR ACCOUNT MANAGER.


 


NOTES:


·                  THIS FORM MUST BE SUBMITTED
BY A PUBLISHER AT LEAST **** PRIOR TO THE TARGET COMMERCIAL RELEASE DATE
FOR A SOFTWARE TITLE IN A HITS PROGRAM IN ANY SALES TERRITORY.


·                  A SEPARATE FORM MUST
BE SUBMITTED FOR EACH SALES TERRITORY IN WHICH THE PUBLISHER WISHES TO PUBLISH
A SOFTWARE TITLE AS PART OF A HITS PROGRAM AND FOR EACH HITS PROGRAM.


 


1)            Publisher Name:


 


2)              Xbox 360
Software Title Name:


 


3)              XMID Number:


 


4)              Hits Program
(circle one)


 


	
    Platinum Hits

  	
  Platinum Family Hits

  
	
    Classic Hits

  	
  Classic Family Hits

  



 


5)              Royalty Tier if
Family Hits (select one):  ****


 


6)              Sales Territory
for which Publisher wants to publish the Software Title as a Hit FPU (check
one):


 


	
  o            North American Sales Territory

  	
  o            Japan Sales Territory

  
	
  o            European Sales Territory

  	
  o            Asian Sales Territory

  



 


7)              Date of
Commercial Release of Software Title in applicable Sales Territory:


 


8)              Number of
Standard FPUs manufactured to date for the Software Title in the applicable
Sales Territory:


 


9)              Projected
Commercial Release date of Software Title in the applicable Sales Territory as
part of Hits Program:


 


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.


 


	
   

  	
   

  
	
   

  	
  By (sign)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name, Title (Print)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  E-Mail Address (for
  confirmation of receipt)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Date (Print mm/dd/yy)

  



 






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


 

















 


EXHIBIT 8


 


XBOX 360
HITS ROYALTY TIER MIGRATION FORM


 


PLEASE COMPLETE THE BELOW
INFORMATION, SIGN THE FORM, AND FAX IT TO MICROSOFT AT


+1 (425) 708-2300 TO THE
ATTENTION OF MICROSOFT LICENSING, GP (MSLI) AND YOUR ACCOUNT MANAGER.


 


NOTES:


·             THIS FORM MUST BE SUBMITTED
AT LEAST **** PRIOR TO THE FIRST MANUFACTURING ORDER TO WHICH PUBLISHER DESIRES
THE NEW BASE ROYALTY TO APPLY FOR EACH RESPECTIVE SALES TERRITORY.


·             A HITS SOFTWARE TITLE MAY NOT
CHANGE ROYALTIES TIERS UNTIL AFTER IT HAS BEEN IN THE HITS PROGRAM FOR AT LEAST
****.


·             A SEPARATE FORM MUST
BE SUBMITTED FOR EACH SALES TERRITORY IN WHICH PUBLISHER DESIRES TO CHANGE THE
APPLICABLE BASE ROYALTY.


 


1.  Publisher Name:


 


2.  Xbox 360 Software Title Name:


 


3.  XMID Number:


 


4.
 Sales Territory (check one):


 


o            North American Sales Territory


o            European Sales Territory


o            Japan Sales Territory


o            Asian Sales Territory


 


5.  Date of First Commercial Release:


 


7.  Current royalty tier:  ****


 


8.  Select New 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.


 


	
   

  	
   

  
	
   

  	
  By (sign)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name, Title (Print)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  E-Mail Address (for
  confirmation of receipt)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Date (Print mm/dd/yy)

  



 






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