Exhibit 10.2
SECOND AMENDMENT TO
ALLIANCE AGREEMENT
THIS SECOND AMENDMENT ("Second Amendment") to the Alliance Agreement dated
November 24, 1999, as heretofore amended (hereinafter, the "Alliance
Agreement"), between MACROVISION CORPORATION a Delaware corporation having its
principal place of business located at 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx
00000, telephone number (000) 000-0000, facsimile number (000) 000-0000, and TTR
TECHNOLOGIES, INC. a Delaware corporation having executive offices at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, telephone number (000) 000-0000, facsimile
number 000-000-0000, amends the Agreement, after signature by both parties,
effective as of June 29, 2001, as follows:
RECITALS
WHEREAS the Parties entered into an Alliance Agreement on November 24, 1999 to
jointly develop the Music Protection Technology;
WHEREAS the Parties recognize that the research and development efforts of the
Parties required to develop a marketable Music Protection Technology have
exceeded the expectations of the Parties;
WHEREAS the Parties also recognize the unanticipated need that may require
Macrovision to supply and support a digital rights management (DRM) technology
in conjunction with the Music Protection Technology;
WHEREAS the Parties hereby desire to address the unanticipated high level of
research and development necessary to develop the Music Protection Technology
and the need to supply and support a DRM technology in conjunction with the
Music Protection Technology, as well as certain other collateral matters,
including, without limitation, the royalties payable to TTR under the Alliance
Agreement;
AMENDMENT
NOW THEREFORE, in consideration of the mutual covenants and promises set forth
below, the Parties agree to amend the Agreement as follows:
1. The following new Section 2.6 (Personnel) is hereby added to the Agreement:
"2.6 Personnel.
(a) Designated Personnel. Subject to the terms set forth herein, TTR
shall dedicate and make its employee Xxxxxx Xxxxxx (the "TTR Employee")
available to Macrovision at Macrovision's Woodley, England facility, from
June 1, 2001 until January 31, 2002 (the "Availability Period") (and
thereafter for additional periods of time upon mutual written consent of
the parties) in accordance with the availability schedule set forth below.
During the Availability Period, the TTR Employee shall be solely dedicated
to the development effort of the Music Protection Technology while located
at Macrovision's Woodley, England facility.
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TTR is responsible for paying any and all costs and expenses of the TTR
Employee in accordance with Section 2.2 (Expenses) of the Agreement.
(b) Availability Schedule. TTR shall make the TTR Employee available
to Macrovision (at Macrovision's Woodley, England facility) during the
period from June 1, 2001 until September 14, 2001 as provided in Appendix
I (Availability Period) attached hereto. In addition, TTR shall make such
TTR Employee available to work exclusively on the Music Protection
Technology (at Macrovision's Woodley, England facility) for a minimum of
four (4) consecutive business days per calendar month from October 15,
2001 until January 31, 2002, and a minimum of ten (10) extra days per
calendar month during such period (i.e., October 15, 2001 to January 31,
2002) working from TTR's offices in Israel as provided in Appendix I
(Availability Period) attached hereto.
(c) Independent Employee. TTR understands and accepts that nothing
in this Agreement shall be construed as creating an employer-employee
relationship between Macrovision and the TTR Employee. TTR further
understands and accepts that the TTR Employee is not an agent of
Macrovision and is not authorized to make any representations, contract,
or commitment on behalf of Macrovision unless specifically requested or
authorized to do so in writing by Macrovision (and TTR consents to such in
writing). TTR agrees to indemnify and hold harmless Macrovision from any
and all damages to Macrovision's physical premises and tangible property
thereon, and authorized personnel, incurred by reason of the TTR
Employee's unlawful or negligent conduct while performing services at
Macrovision's Woodley, England facility during the Availability Period.
(d) Alternate TTR Employee. TTR agrees that if, for any reason
whatsoever, the TTR Employee becomes unavailable or unwilling to fulfill
the requirements and conditions set forth herein, TTR shall promptly
designate (subject to Macrovision's reasonable approval) an alternate
employee with the appropriate technical skills and knowledge to replace
the TTR Employee. Macrovision shall have the right to deny any such
alternate employee that TTR designates solely on reasons relating to such
alternate employee's technical competence, knowledge, or professional
ability to perform the services or complete the work. If Macrovision
denies any such alternate employee, Macrovision may hire an outside
consultant or employee to replace the TTR Employee. TTR agrees to pay any
and all costs and expenses, per Section 2.2 (Expenses) of the Agreement,
for any such outside consultant or employee that Macrovision hires to
replace the TTR Employee, provided, that such amount shall not exceed, in
the aggregate, $17,750 per month. In either such event, such alternate
employee shall become known as the TTR Employee."
2. The following new Section 3.5 (Macrovision's DRM Technology) is hereby added
to the Agreement:
"3.5 Macrovision's DRM Solution.
(a) Definition. For the purposes of the Agreement, the "Macrovision
DRM Solution" shall mean any and all software, hardware, interface,
technology, know-how, algorithms, procedures, techniques, solutions, and
work-arounds, owned by or licensed to Macrovision which relate principally
to the digital rights management of, including but not limited to, audio
applications, software applications, and/or digital assets or information,
which Macrovision developed or develops prior to or following the
Effective Date of this Agreement,
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which can be shown by Macrovision by reasonable tangible evidence to have
been developed independently by Macrovision or by such other party without
the use or exploitation of TTR Technology or the efforts of the TTR
Employee.
(b) Separate Technology. The Macrovision DRM Solution and all
Intellectual Property Rights therein are, and/or will remain, the sole and
exclusive property of Macrovision and its suppliers, if any. TTR agrees
that the Macrovision DRM Solution shall at all times remain separate and
apart from any Joint Technology of the Parties and shall not be considered
Joint Technology of the Parties or part of the Music Protection
Technology, or covered within the Field of Use. TTR agrees that it shall
have no rights in or to the Macrovision DRM Solution, nor, unless
otherwise agreed between the parties in writing, shall TTR have any rights
to receive any royalties or fees pursuant to Section 5 (Royalties) of the
Agreement, from Macrovision's licensing of the Macrovision DRM Solution as
a stand-alone product. TTR understands and accepts that Macrovision shall
at all times have the right to license, market or otherwise exploit the
Macrovision DRM Solution as a stand-alone product, along with or separate
and apart from the Music Protection Technology. Macrovision agrees to fund
and pay the costs and expenses of the development of the Macrovision DRM
Solution. Macrovision agrees to license and price the Macrovision DRM
Solution (and any third party's DRM solution that is available to
Macrovision) separate and apart from the Music Protection Technology. For
the avoidance of doubt, the Parties agree that Macrovision may market and
promote the Macrovision DRM Solution as a stand-alone product along with
the Music Protection Technology, provided that Macrovision licenses and
prices the Macrovision DRM Solution separate and apart from the Music
Protection Technology. If Macrovision markets and promotes the Macrovision
DRM Solution along with the Music Protection Technology, Macrovision
agrees that it will market and promote both the Macrovision DRM Solution
and Music Protection Technology in a fair and equitable manner. In
addition, Macrovision agrees to inform its prospective licensees that
Macrovision is precluded from licensing the Macrovision DRM Solution (and
any third party's DRM solution that is available to Macrovision) as a
portion of the Music Protection Technology since TTR, along with
Macrovision, holds the rights to the Music Protection Technology.
(c) Bundling. Notwithstanding the forgoing Section 3.5 (b), if the
Parties mutually agree in writing that market forces dictate the licensing
of the Macrovision DRM Solution (or any third party's DRM solution that is
available to Macrovision) as a portion of the Music Protection Technology,
the Parties will, subject to the terms of Section 3.5 hereof, negotiate in
good faith the allocation of revenue to the Macrovision DRM Solution
between TTR and Macrovision. Macrovision agrees that it shall not license
the Macrovision DRM Solution (or any third party's DRM solution that is
available to Macrovision) as a portion of the Music Protection Technology
until the allocation of revenue to the Macrovision DRM Solution (or any
such third party's DRM solution) has been mutually agreed to in writing by
Macrovision and TTR.
(d) Third-Party DRM Solutions. If, for any reason, Macrovision is
required to pay any costs, fees or expenses to interface a third party's
DRM solution with the Music Protection Technology in order to license the
Music Protection Technology, and Macrovision is unable to recover all such
costs, fees or expenses from any such third party, subject to the
provisions of Section 3.5(c) above TTR agrees to partially reimburse
Macrovision for such costs, fees and expenses (including but not limited
to any and all ongoing development and support costs, fees and expenses)
incurred by Macrovision for Macrovision's efforts in developing and/or
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supporting the interface; provided, that this provision shall apply solely
in circumstances where TTR has agreed in advance in writing with the need
for such interface. The Parties agree to negotiate in good faith the
reimbursements that TTR shall pay to Macrovision for such costs, fees and
expenses."
3. Section 5.1 (a) (Royalty Rate) of the Agreement is hereby amended by deleting
the words "Except as provided below in this Section 5," from such Section.
4. The first sentence of Section 5.1 (b) (Delayed Commercial Launch) of the
Agreement (as amended) is hereby deleted from the Agreement in its entirety.
5. The heading of Section 5.1 (b) "(Delayed Commercial Launch)" of the Agreement
(as amended) is hereby deleted from the agreement and replaced with the heading
"(Commercial Launch)".
6. The following new Section 5.6 (Research and Development Expenses) is hereby
added to the Agreement:
"TTR shall pay to Macrovision a non-refundable, monthly fee of
twenty-thousand-US-dollars (US $20,000.00) to cover unanticipated research
and development (R&D) expenses incurred by Macrovision. TTR shall pay such
fees to Macrovision for twelve (12) consecutive months. TTR shall commence
paying such fees to Macrovision on June 1, 2001 and shall continue paying
such fees to Macrovision through May 1, 2002. Except for the first monthly
fee, which shall be due and payable upon the execution of this Second
Amendment by TTR, TTR shall pay all such monthly fees to Macrovision on
the first day of each such month between July 1, 2001 and May 1, 2002. The
Parties agree to discuss in good-faith continued R&D funding and extending
the TTR Employee's Availability Period, should the ongoing R&D effort
necessary to sustain a viable Music Protection Technology business remain
at the extraordinary and unanticipated level required of the Parties
between September 1, 2000 and January 31, 2002."
7. All other terms of the Agreement remain unchanged. All defined terms used in
this Second Amendment have the same meaning attributed to them in the Agreement.
IN WITNESS WHEREOF, this Second Amendment to the Agreement has been executed and
delivered by the parties hereto.
MACROVISION CORPORATION TTR TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxx Xxxxxx Name: Xxxxxxx Xxxxxxx
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Title: Director, Contracts & Licensing Title: Chief Operating Officer
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Date: 7/5/2001 Date: 6/30/2001
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