Exhibit 10.1


 


****  Denotes confidential information that has
been omitted and filed separately, accompanied by a confidential treatment
request, with the Securities and Exchange Commission pursuant to 17 C.F.R.
200.83.


 


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)


 


This Amendment to
the Xbox 360 Publisher License Agreement (this “Amendment”) is entered into and
effective as of the later of the two signature dates below (the “Amendment
Effective Date”) by and between Microsoft Licensing, GP,  a
Nevada general partnership (“Microsoft”), and TAKE-TWO INTERACTIVE SOFTWARE, INC.  (“Publisher”), and supplements that certain Xbox 360 Publisher
License Agreement  between the
parties dated as of November 17, 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 extend the term and otherwise 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


 


1.1                                 The definitions of “Asian
Manufacturing Region”, “North American
Manufacturing Region”, “European Manufacturing
Region” and “Manufacturing Region”
are hereby deleted from the Xbox 360 PLA.


 


1.2                                 The definition of “Online
Content” is hereby amended and restated in its entirety as follows:


 


 “Online Content” means any content, feature, or access to
software or online service that is distributed by Microsoft pursuant to this
Agreement.  Online Content includes, but
is not limited to, Online Game Features, Title Updates, Demo Versions, Xbox
LIVE Arcade games, trailers, “themes,” “gamer pictures” or any other category
of online content or service approved by Microsoft from time to time.  Trailers, “themes,” “gamer pictures” and any other
approved Online Content is further described in the Xbox 360 Publisher Guide.


 


1.3                                 The definition of “Software
Title” is hereby expanded to include Expansion Pack(s).


 


1.4                                 The following definitions are hereby added to
Section 2 of the Xbox 360 PLA.


 


1.4.1                        “Expansion Pack” means an FPU that is an add-on, mission
pack, game expansion, incremental content, and/or other addition to a Software
Title that (i) would not be generally considered in the console game
industry to be a next full version release (e.g., a version 1.0 to 1.5); (ii) requires
another full version video game in order to operate, (iii) is derived from
the content, story, characters or other intellectual property of the full
version video game required to play it, and (iv) has a WSP (defined below)
that is equal to or below the Threshold Price (defined below) listed for the
royalty tiers applicable to Expansion Packs in Section 1 b. of Exhibit 1
attached hereto.  In order to meet this
definition of Expansion Pack, such addition to a Software Title must be
approved by Microsoft as an Expansion Pack.


 


1.4.2                        “Family Hit” means any Hits Software Title that  (i) received an “E,” or 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) is character based and/or
appeals, 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 as
a Family Hit.


 


MICROSOFT  CONFIDENTIAL


 





















 


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 [****] 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 and 8 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 [****]. 
Effective [****], 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:


 


“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 


 


2

















 


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, [****] or Microsoft may, but is not
obligated to, offer Publisher credit terms for payment of such fees.  As soon as commercially feasible after
payment by Publisher for an order for Content Tokens (or Microsoft’s
determination of Publisher’s credit worthiness), 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 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, the parties shall
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: (i) each party shall have the
right and license to use the specific properties indentified in the Promotion
Schedule solely in connection with the Promotion during the promotional period
and territory identified in the Promotion Schedule; (ii) all promotional
materials prepared by or on behalf of the parties for the Promotion shall be
subject to the other party’s approval. The party approving such materials shall
have [****] to approve or disapprove such materials. Failure to respond within
such [****] period shall be deemed an approval; and (iii) the parties
shall comply with all other obligations set forth in the Promotion Schedule.


 


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.


 


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 [****].


 


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, 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.


 


 


	
  MICROSOFT LICENSING, GP

  	
   

  	
  TAKE-TWO INTERACTIVE SOFTWARE,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Astrid B. Ford

  	
   

  	
  /S/ Daniel P. Emerson

  
	
  By (sign)

  	
   

  	
  By (sign)

  
	
  Astrid B. Ford

  	
   

  	
  Daniel P. Emerson

  
	
  Name (Print)

  	
   

  	
  Name (Print)

  
	
  Sr. Xbox Program
  Manager

  	
   

  	
  Vice President and
  Associate General Counsel

  
	
  Title

  	
   

  	
  Title

  
	
  12/04/08

  	
   

  	
  11/26/08

  
	
  Date (Print mm/dd/yy)

  	
   

  	
  Date (Print mm/dd/yy)

  



 


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, Tier B
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 [****] 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 [****] 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.


 


5

















 


[****] 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


 


[****]


 


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


 


[****]


 


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.


 


6

















 


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


 


[****], 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 [****]
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, 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 


 


7

















 


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


 


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


 


[****]


 


[****]


 


b.                                      Publisher
may, from time to time, submit Online Content to Microsoft for Microsoft to
distribute via Xbox Live.  [****]


 


c.                                       [****]


 


d.                                      [****]


 


e.                                       [****]


 


f.                                         [****]


 


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.                                      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 


 


8

















 


(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.


 


9.                                      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 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 [****].  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 [****].


 


9

















 


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 [****]. 
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

  	
  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)

  



 


10














 


EXHIBIT 3


 


XBOX 360
PUBLISHER ENROLLMENT FORM


 


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


 


NOTE:  PUBLISHER MUST COMPLETE, SIGN AND SUBMIT THIS
ENROLLMENT FORM [****].


 


This Xbox 360 Publisher
Enrollment Form (“Enrollment”) is entered into between Microsoft Ireland
Operations Ltd. (“MIOL”) and the following publisher (“Publisher”):


 


	
   

  	
  Publisher:

  	
   

  	
   

  
	
   

  	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  	
   

  
	
   

  	
  Fax:

  	
   

  	
   

  
	
   

  	
  Phone:

  	
   

  	
   

  
	
   

  	
  Email:

  	
   

  	
   

  
	
   

  	
  VAT number:

  	
   

  	
   

  
									



 


and is effective as of
the latter of the two signatures identified below.   The terms of that certain Xbox 360 Publisher
License Agreement signed by Microsoft Licensing, GP and                                       dated                                    
(the “Xbox 360 PLA”) are incorporated herein by reference.


 


1.             Term.  This
Enrollment will expire on the date on which the Xbox 360 PLA expires, unless it
is terminated earlier as provided for in the Xbox 360 PLA.


 


2.             Representations and Warranties.  By signing this Enrollment, the parties agree
to be bound by the terms of this Enrollment, and Publisher represents and
warrants that: (i) it has read and understands the Xbox 360 PLA, including
any amendments thereto, and agrees to be bound by those; (ii) it is either
the entity that signed the Xbox 360 PLA or its affiliate; and (iii) the
information that it has provided herein is accurate.


 


3.             Notices; Requests.  All notices and requests in connection with
this Enrollment are deemed given on (i) the [****] after they are
deposited in the applicable country’s mail system ([****] if sent
internationally), postage prepaid, certified or registered, return receipt
requested; or (ii) [****] after they are sent by overnight courier,
charges prepaid, with a confirming fax; and addressed to the Publisher as set
forth above and to MIOL as follows:


 


	
  Microsoft:

  	
  MICROSOFT IRELAND OPERATIONS LTD.

  
	
   

  	
  Microsoft European
  Operations Centre,

  
	
   

  	
  Atrium Building Block
  B,

  
	
   

  	
  Carmenhall Road,

  
	
   

  	
  Sandyford Industrial
  Estate

  
	
   

  	
  Dublin 18

  
	
   

  	
  Ireland

  
	
   

  	
   

  
	
   

  	
  Fax: 353 1 706 4110

  
	
   

  	
   

  
	
  Attention:

  	
  MIOL Xbox Accounting
  Services

  
	
   

  	
   

  
	
  with a cc to:

  	
  MICROSOFT CORPORATION

  
	
   

  	
  One Microsoft Way

  
	
   

  	
  Redmond, WA 98052-6399

  
	
   

  	
   

  
	
  Attention:

  	
  Legal &
  Corporate Affairs Department

  
	
   

  	
  Legal Group, E&D
  (Xbox)

  
	
   

  	
  Fax:  +1  (425)
  706-7329

  



 


MICROSOFT  CONFIDENTIAL


 


1

















 


or to such other address
as the party to receive the notice or request so designates by written notice
to the other.


 


4.             Billing Address.   For
purposes of the Xbox 360 PLA, Exhibit 1, Section 4, Publisher’s
billing address for FPUs manufactured by Authorized Replicators located in the
European Sales Territory is as follows:


 


	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Email address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Phone:

  	
   

  	
   

  



 


 


	
  MICROSOFT IRELAND OPERATIONS
  LTD.

  	
   

  	
  PUBLISHER:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By (sign)

  	
   

  	
  By (sign)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name (Print)

  	
   

  	
  Name (Print)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title

  	
   

  	
  Title

  
	
   

  	
   

  	
   

  
	
  Date (Print mm/dd/yy)

  	
   

  	
  Date (Print mm/dd/yy)

  



 


2

















 


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 [****].


·                  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)

  



 


3

















 


EXHIBIT 7


 


XBOX 360
LIVE AND PDLC INCENTIVE PROGRAM


 


1.                      Xbox
360 Live and PDLC Incentive Program


 


To
encourage Publisher to support functionality for Xbox Live in its Xbox 360
Software Titles, to drive increased usage of Xbox Live via Xbox 360 and to
increase support of Premium Downloadable Content, Publisher may qualify for
certain payments based on the amount of Xbox Live Market Share (defined in Section 2.k.
of this Exhibit 7 below) created by Publisher’s Multiplayer
Software Titles (defined in Section 2.c. of this Exhibit 7
below).  Each Accounting Period (defined
in Section 2.a. of this Exhibit 7 below), Microsoft will
calculate Publisher’s Xbox Live Market Share. 
If Publisher [****], then Microsoft will pay Publisher the applicable
Incentive set forth in the table in Section 3 of this Exhibit 7
based on [****] in the applicable Accounting Period.


 


Notwithstanding
anything herein to the contrary, use of or revenue derived from online games
for which an end user pays a subscription separate from any account established
for basic use of Xbox Live, are excluded from this Xbox 360 Live and PDLC
Incentive Program.


 


2.                      Definitions


 


a.             “Accounting
Period” means [****], within the Term (defined in Section 5
below); provided that if the Effective Date of this Agreement or the expiration
date of this program falls within such [****], then the applicable payment
calculation set forth below shall be made for a partial Accounting Period, as
appropriate.


 


b.             “[****] Unique User Market
Share” means [****]


 


c.             “Multiplayer Software
Titles” means a Software Title for Xbox 360 that supports real-time
multiplayer game play.


 


d.             “[****] Unique Users”
means [****]


 


e.             “New Subscriber Market
Share” means [****]


 


f.              “New Subscriber”
means a Paying Subscriber who pays for an Xbox Live account for the first
time.  A New Subscriber is attributed to the first Multiplayer Software
Title he or she plays, even if such play was during a free-trial period which
was later converted into a paying subscription. 
Each Paying Subscriber can only be counted as a New Subscriber once,
[****].


 


g.             “Paying Subscriber”
[****]


 


h.             “PDLC Revenue”
means [****]


 


i.              “PDLC Revenue Market Share”
means [****]


 


j.              “Subscription Revenue” means
[****]


 


k.             “Xbox Live Market Share” [****]


 


3.                      Incentive Table


 


Publisher’s “Incentive” shall
be determined
pursuant to the following table:


 


[****]


 


4

















 


4.                                      Example


 


[****]


 


[****]


 


[****]


 


[****]


 


[****]


 


[****]


 


[****]


 


[****]


 


5.              Term


 


This
Xbox 360 Live and PDLC Incentive Program will commence [****].  Microsoft reserves the right to change the
Xbox Live Market Share upon written notice to Publisher, but no more frequently
than [****].


 


6.              Payments


 


In the
event Publisher qualifies for a payment under this program during an Accounting
Period, Microsoft shall furnish Publisher with a statement, together with
payment for any amount shown thereby to be due to Publisher, within [****].


 


7.              Modifications to Xbox 360 Live and PDLC
Incentive Program


 


[****]


 


5

















 


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

  	
  Japan Sales Territory

  
	
  o

  	
  Asia 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)

  



 


6