EXHIBIT 10.26
Confidential treatment has been requested for
portions of this exhibit. The copy filed herewith omits the
information subject to the confidentiality request. Omissions are
designated as [*]. A complete version of this exhibit has been
filed separately with the Securities and Exchange
Commission.
F IFTH A MENDMENT TO D EVELOPMENT A GREEMENT
This F IFTH A MENDMENT T O T HE D EVELOPMENT A GREEMENT (this “Fifth Amendment”) is made and
entered into as of December 19, 2003 (the “Fifth Amendment
Effective Date”) by and between DIRECTV, I
NC . , a
California corporation (“DIRECTV”), and T
I V O I NC . , a
Delaware corporation (“TiVo”) (collectively, the
“Parties”).
R ECITALS
W HEREAS , the Parties entered into that certain
Development Agreement having an effective date of February 15, 2002
(the “Development Agreement”);
W HEREAS , the Parties have previously amended the
Development Agreement via that certain First Consolidated Amendment
dated October 31, 2002, that certain Second Amendment dated
December 20, 2002, that certain Third Amendment dated January 8,
2003, and that certain Fourth Amendment dated April 17, 2003 (the
“Fourth Amendment”); and
W HEREAS , the Parties wish to further amend certain
provisions in the Development Agreement.
N OW ,
T HEREFORE
, the Parties agree as
follows:
A GREEMENT
Unless stated otherwise, capitalized terms used
herein shall have the meanings set forth in the Development
Agreement.
1. T
ECHNOLOGY
D EVELOPMENT P AYMENTS . Section 3.6 of the Development
Agreement is hereby deleted and replaced in its entirety with the
following:
“ 3.6 Technology
Development Payments. In consideration of
TiVo’s development of the Provo Receivers, the Version
[*] Software, and the Version [*] Software, DIRECTV
shall pay to TiVo a technology development fee in the aggregate
amount of [*] (the “ Technology Development Fee
”), of which [*] shall be payable within [*]
days of the date of this Agreement and the remainder shall be
payable in accordance with Development Schedule attached hereto as
Exhibit A and such additional development schedules as
mutually agreed upon by the parties, which together shall include
the remaining milestone payment amounts, the milestone payment
dates and the milestone deliverables; provided, however, [*]
of the Technology Development Fee shall be payable [*] ,
with such payment credited against upcoming TiVo milestone payments
for Version [*] Software as such milestone deliverables and
dates are met. If DIRECTV elects to exercise its option for a
Two-Chip Receiver set forth in Section 2.5 (Two-Chip
Option), DIRECTV shall pay to TiVo an additional technology
development fee in the amount of [*] (the “
Additional Development Fee ”), of
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Certain
information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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which [*] shall be payable within
[*] days of the date of DIRECTV’s written two-chip
option exercise notice and the remainder shall be payable in
accordance with the milestone payments specified in a Two-Chip
Receiver development schedule to be mutually agreed to by the
parties. In addition, if DIRECTV elects to exercise its option for
[*] of the Version [*] Software as set forth in
Section 3.2 of the Fifth Amendment, the Technology Development Fee
shall be increased by an additional amount of [*] , payable
in accordance with the milestone payments with respect thereto
specified in the Version [*] Software development schedule
mutually agreed to by the parties. DIRECTV agrees that the
Technology D
