EXHIBIT 10.2
***TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.80 (b)(4),
200.83 AND 240.24b-2
FIRST AMENDMENT TO THE AGREEMENT RESPECTING
MODIFIED VERSION OF DESKTOP DNA
(Executed October 2000)
This first Amendment ("Amendment") to the Agreement Respecting Modified
Version of Desktop DNA entered into between Miramar Systems, Inc. and Previo,
Inc. of October 2000 ("Original Agreement") contains the following new
provisions. All other terms and conditions of the Original Agreement are deemed
unmodified and remain in full force and effect.
The parties hereby agree to the following:
Add to SECTION 3.4. PAYMENTS FOR DEVELOPMENT OF THE MODIFIED PRODUCT, the
following:
3.4.4 Previo shall pay an additional [***...***] to Miramar as a fee
for nonrecurring engineering of the Modified Product (the " Additional NRE Fee")
provided that Miramar adheres to the milestone delivery schedule ("Milestone
Schedule") as set forth below, with specific dates as set forth in the attached
Shared Schedule dated 1/29 (Schedule 1-A). If Miramar is unable to adhere to the
Milestone Schedule and that failure is not as a result of Previo's failure to
provide Miramar with the requisite preceding dependencies on time, then the
Additional NRE Fee, although still payable by Previo according to the schedule
set forth below, will serve to satisfy the prepaid royalty obligations as set
forth in Schedule 3 of the Original Agreement on a dollar for dollar basis
according to the formula as set forth below. The Milestone Schedule and
associated Additional NRE Fee payment schedule shall be as follows:
3.4.4.1 [***...***] shall be payable upon delivery of Alpha 1
version of the Modified Product (line 40 of attached Shared
Schedule);
3.4.4.2 [***...***] shall be payable upon delivery by Miramar of the
branded feature complete beta version of the Modified
Product (line 48 of Shared Schedule);
3.4.4.3 [***...***] shall be payable upon delivery of demo version
of Modified Product (demo version is created by Previo
testing the 3.4.4.2 software against a pre-defined demo
script and Miramar fixing any blocking bugs) (line 53 of
Shared Schedule);
3.4.4.4 [***...***] shall be payable upon delivery of the External
Beta version of the Modified Product (line 55 of Shared
Schedule); and
3.4.4.5 [***...***] shall be payable upon the Acceptance Date (line
74 of Shared Schedule).
The formula for the conversion of the Additional NRE Fee to prepaid royalties
when Milestone Schedule dates are missed by Miramar is as follows:
One week delay - [***...***] of the NRE converts to prepaid royalty
Two weeks delay - [***...***] of the NRE converts to prepaid royalty
Three weeks delay - [***...***] of the NRE converts to prepaid
royalty
Four weeks delay - [***...***] of the NRE converts to prepaid
royalty
The final determination for the aggregate duration of time for which the
Milestone Schedule dates are missed, if at all, will be measured as of the
Acceptance Date.
The parties hereby accept these changes as outlined above.
PREVIO, INC., MIRAMAR SYSTEMS, INC.
By: /S/ XXXXX XXXXXXX By: /S/ X. X. XXXXX
---------------------------- ----------------------------
Printed Name: Xxxxx Xxxxxxx Printed Name: X. X. Xxxxx
Title: CFO Title: CFO
Date: 2/8/01 Date: 2/1/01
---------------------------- ----------------------------
SCHEDULE 1-A
[***...***]
*CONFIDENTIAL TREATMENT REQUESTED
