Xbox Live Distribution Amendment

EXHIBIT 10.52B


CONFIDENTIAL


EXHIBIT 10.52B


Confidential information omitted where indicated by "[*]" and filed separately with the Securities Exchange Commission pursuant to a request for confidential treatment under Rule 406 of the Securities Act of 1933.


XBOX(TM) LIVE DISTRIBUTION AMENDMENT
TO THE
XBOX(TM) PUBLISHER LICENSING AGREEMENT


This Xbox(TM) Live Distribution Amendment (the "Amendment") is entered into and effective as of the latter of the two signature dates below (the "Effective Date") by and between MICROSOFT LICENSING, INC. a Nevada corporation ("Microsoft"), and THE 3DO COMPANY, a California corporation ("Licensee"), and supplements the Xbox(TM) Publisher License Agreement between the parties dated as of July 22, 2002 ("PLA").


RECITALS


A. Whereas, Microsoft and its affiliated companies develop and license a computer game system, known as the Xbox(TM) game system; and


B. Whereas, Microsoft and its affiliated companies intend to develop and maintain a proprietary online service accessible via the Xbox(TM) game system; and


C. Whereas, Licensee is an experienced publisher of software products and is developing and publishing one or more software products to run on the Xbox(TM) game system pursuant the parties' PLA; and


D. Whereas, Licensee wishes to participate in the Xbox Live service by making such software products available to subscribers of such service.


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 Licensee agree as follows:


1. DEFINITIONS; INTERPRETATION


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


1.2 The terms of the PLA are incorporated by reference, and except and to the extent expressly modified by this Amendment, the PLA shall remain in full force and effect and is hereby ratified and confirmed.


1.3 "Xbox Live" shall mean the proprietary online service offered by Microsoft to End Users. The Xbox Live service may change from time to time, and may include, without limitation, the Base Service and Premium Service(s).


1.4 "Online Features" shall mean a Software Title's content, features and services that will be available to End Users via Xbox Live. Online Features may be Base Online Features and/or Premium Online Features.


1.5 "Base Service" shall mean a base level of Xbox Live services available to End Users for a fee payable to Microsoft or its affiliates. The Base Service, and the terms and conditions for Licensee's Base Online Features, is further defined in this Amendment and the Xbox Guide.


1.6 "Base Online Features" shall mean a Software Title's Online Features that are available to End Users as part of the Base Service.


* Confidential portion omitted and filed separately with the Commission.


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CONFIDENTIAL


1.7 "Premium Service(s)" shall mean Xbox Live services (other than the Base Service) available to End Users for additional fee(s) above and beyond the Base Service fee. The Premium Service, and the terms and conditions for Licensee's Premium Online Features, is further defined in this Amendment and the Xbox Guide.


1.8 "Premium Online Features" shall mean a Software Title's Online Features that are available to End Users as part of the Premium Service.


1.9 "End User" shall mean any individual or entity that accesses and uses Xbox Live, whether as a guest of a Subscriber, via a user account established by a Subscriber, or otherwise.


1.10 "Subscriber" shall mean an End User that establishes a subscription billing account to Xbox Live.


1.11 "Commercial Release" shall mean (a) with respect to Xbox, the first commercial availability of Xbox Live in the United States to the general public, and (b) with respect to a the Online Features of a Software Title, the first availability of such features via Xbox Live to the general public.


1.12 "Trial Version" shall mean a time-limited or feature-limited version of a Software Title's Online Features that is available to End Users only to advertise or promote the applicable Software Title, and is further defined in this Amendment and the Xbox Guide.


1.13 "Online Territory" shall be determined on an Online Feature-by-Online Feature basis, and shall mean such geographic regions or countries as may be specified in writing when the Concept of the applicable Online Feature is approved. The Online Territories for Online Features of a Software Title may differ in scope from the Territories for the Software Title's Finished Product Units.


2. DEVELOPMENT; DELIVERY; APPROVAL


2.1 Development Support. Microsoft shall provide Licensee a reasonable level of support in connection with the development and testing of Licensee's Online Features in a manner consistent with the guidelines and requirements set forth in the Xbox Guide.


2.2 Approval Process. The approval process for Online Features is as set forth in the PLA (i.e., the stages for Concept approval, pre-Certification, Certification and Marketing Materials shall apply to all aspects of the Software Title, including without limitation, its Online Features). Additional approval criteria specific to Online Features are as set forth below and in the Xbox Guide.


2.2.1 Concept. Licensee's Concept submission form shall include a description of the Online Features, including, without limitation, a description of any incremental content (i.e., to be made available following the Commercial Release of the Finished Product Units of the Software Title) and proposed distribution schedule. Licensee shall designate, in its sole discretion, which Online Features shall be included in the Base Service and in the Premium Service. Subject to the foregoing, Microsoft may require that all Online Feature Concept submissions include, at a minimum, certain basic functionality necessary to achieve certification (e.g., all features must support user authentication), and any such requirements shall be set forth in the Xbox Guide. Licensee may additionally propose Online Features at any time after a Software Title Concept has been approved, in which case Licensee shall deliver to Microsoft a separate Concept submission addendum form for each Online Feature proposal. Evaluation of the proposed Online Features will be based on criteria including, but not limited to, the criteria set forth in the Xbox Guide. To the extent Licensee desires that Online Features be available in the Territory comprising European Union countries, the EU Approval Option shall not apply.


2.2.2 Client-Server Games. The Online Features of certain Software Titles may require that all or part of the Online Features be hosted on game server(s) ("Game Servers"). Such Game Servers shall be maintained and operated by Microsoft unless Licensee desires to maintain and operate its own game server(s) for Premium Online Services ("Licensee Game Servers"), in which case Licensee Game Servers must be certified in accordance with Section 2.2.5 below. Notwithstanding the foregoing, given the necessity of creating a secure and reliable online service to ensure the success of the Xbox Live platform, the option for Licensee to maintain and operate its own Licensee Game Servers may not be available until at least one year following the Online Commercial Release of Xbox Live. All maintenance and operation of Game Servers, if any, for Base Online Features shall be conducted solely by Microsoft.


* Confidential portion omitted and filed separately with the Commission.


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2.2.3 Pre-Certification. At the Pre-Certification submission, Licensee shall deliver to Microsoft a version of the Online Features, and such other content as may be required by the Xbox Guide. Microsoft shall also conduct certain testing of the Online Features, which may vary depending on the nature of the Online Features. If applicable, Licensee shall also provide access to Licensee Game Servers and/or the Game Server software for Pre-Certification testing in accordance with the Xbox Guide. Online Features must receive satisfactory Pre-Certification testing results prior to the Software Title proceeding to Beta Trials.


As set forth in the PLA, all feedback provided by Microsoft to Licensee as a result of Microsoft's Pre-Certification testing shall be advisory in nature. However, Licensee acknowledges that the Pre-Certification and Certification submissions evaluate different aspects of the Online Features and at different stages in Licensee's development schedule and therefore satisfactory feedback regarding Pre-Certification is not an indication that the Online Features will be approved following the Certification submission. Licensee shall be given the opportunity to resubmit Online Features that fail the Pre-Certification approval process. In Microsoft's discretion, Licensee may be charged a reasonable fee designed to offset the costs associated with the Pre-Certification testing of Software Titles in the event of resubmission(s).


2.2.4 Beta Trials. If the Pre-Certification submission receives satisfactory results, Microsoft may require that internal and public beta testing be conducted by or on behalf of Microsoft (the "Beta Trials"). All feedback provided by Microsoft to Licensee as a result of the Beta Trials shall be advisory in nature, and satisfactory feedback from the Beta Trials is not an indication that the Online Features will be approved following the Certification submission. Likewise, Beta Trial feedback may include information regarding violations of Technical Certification Requirements that could, if not addressed by Licensee, result in Certification failure. The Beta Trial process shall be as further described in the Xbox Guide.


2.2.5 Certification. In addition to the deliverables set forth in the PLA, Licensee shall deliver to Microsoft a proposed final release version of the Software Title with Online Features that is complete and ready for access via Xbox Live, in addition to such other content as may be required by the Xbox Guide. Such version shall provide the final content rating certification and with all identified program errors corrected. If applicable, Licensee shall also provide Microsoft access to Licensee's Game Servers and Game Server software. Microsoft shall conduct compliance, compatibility, functional and other testing consistent with the Xbox Guide ("Certification Testing") and shall subsequently provide Licensee with the results of such testing. As set forth in the Xbox Guide, Certification Testing may vary depending on the nature of the Online Features (e.g., a series of episodic downloads for a client-to-client game may have different Certification criteria and testing times than the features of a multiplayer client-server game).


2.2.5.1 Certification for Online Features may be conditioned upon (1) successful completion of the Certification Testing; (2) conformance with the approved Online Feature Concept as identified in the Concept Summary; (3) demonstration of conformance with the Technical Certification Requirements as described in the Xbox Guide; (4) consistency with the goals and objectives of the Xbox Live service; and (5) continuing and ongoing compliance with all Certification requirements and other requirements as set forth in the Xbox Guide and this Amendment.


2.2.5.2 Certification for Licensee Game Servers may be conditioned upon: (1) successful completion of the Certification Testing, (2) demonstration of conformance with the Service Level Requirements as described in the Xbox Guide, and (3) continuing and ongoing compliance with all Certification requirements, Service Level Requirements, and other requirements as set forth in the Xbox Guide and this Amendment.


2.2.5.3 If warranted on the basis of its tests, Microsoft shall make reasonable efforts to provide Licensee with feedback regarding the Online Features and Licensee Game Servers and modifications that must be made prior to approval of the Certification submission. Provided that Licensee has made good faith efforts to address issues raised by Microsoft, Licensee shall be given the opportunity to resubmit Online Features and Licensee Game Servers that fail the Certification approval process. In Microsoft's discretion, Licensee may be charged a reasonable fee designed to offset the costs associated with the testing of Online Features and Licensee Game Servers upon resubmission.


2.2.6 Post-Release Compliance. As set forth in Section 2.2.5 above, Online Features (and Licensee Game Servers, as applicable) must remain in compliance with all Certification requirements on a continuing and ongoing basis. If, following Certification and Commercial Release, the Online Features thereafter fail at any time to comply with any of the Certification criteria set forth herein, Microsoft reserves the right, at its option, to terminate this Amendment with respect to such Online Features, or to revoke Certification and suspend the availability of such Online Features in whole or in part until such time that such Online Features are re-Certified in accordance with Section 2.2.5. Re-Certification may be conditioned upon Licensee's delivery to Microsoft of Auto-Updates (as defined in Section 2.3.4) in accordance with and within the time frames set forth in the Xbox Guide. If Licensee Game Servers fail at any time to comply with any of the


* Confidential portion omitted and filed separately with the Commission.


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