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Exhibit 10.33
AMENDMENT NO. 3
TO THE TECHNOLOGY LICENSE AND DISTRIBUTION AGREEMENT
BETWEEN SUN MICROSYSTEMS, INC. AND OPENTV, INC.
This Amendment No. 3 ("Amendment") to the Technology
License and Distribution Agreement dated March 20, 1998, as
amended, (the "Agreement"), by and between Sun Microsystems, Inc.,
a Delaware corporation with a principal place of business at 4150
Network Circle, Santa Clara, California 95054 ("Sun"), and OpenTV,
Inc., a Delaware corporation with a principal place of business now
located at 275 Sacramento Street, San Francisco, California 94111
("Licensee"), is entered into this 30 day of June 2005
(the "Amendment Effective Date") by and between the same
parties.
This Amendment is in addition and is subject to the Agreement.
Except as expressly amended herein, the Agreement and all
amendments and exhibits thereto shall remain unaltered and in full
force and effect. In the event of any conflict or inconsistency
between the terms of this Amendment and the Agreement, the terms of
this Amendment shall control. Capitalized terms not defined herein
shall have the same meaning as the identical capitalized terms in
the Agreement, unless otherwise stated.
Licensee desires to amend the Agreement to add Sun’s Java
2 Platform™ Micro Edition, Connected Device Configuration and
Foundation Profile, Personal Basis Profile, and Connected Device
Configuration HotSpot™ Implementation to the Technology
previously licensed by Licensee thereunder. Sun is willing to
license same to Licensee pursuant to the terms and conditions of
the Agreement as amended by this Amendment. The parties therefore
amend the Agreement as follows:
AMENDMENT
1.0 Definitions.
1.1 The parties agree that the following is hereby added to the
definition of "Technology": Java 2 Platform, Micro Edition,
Connected Device Configuration and Foundation Profile ("CDC/FP"),
Personal Basis Profile ("PBP"), and the Connected Device
Configuration HotSpot Implementation ("CDC-HI"), as more fully
described in Exhibits C-3, C-4, and C-5, respectively, and Upgrades
thereto to the extent Licensee is entitled to receive them.
1.2 The parties agree that the following is hereby added to the
definition of "Java Environment": Java 2 Platform, Micro Edition,
Connected Device Configuration and Foundation Profile, Personal
Basis Profile, and Connected Device Configuration HotSpot
Implementation, as more fully described in Exhibits C-3, C-4, and
C-5, respectively.
1.3 The following is hereby added as section 1.5.1 to the
Agreement: "Device Manufacturer" means the original equipment
manufacturer of a Device Manufacturer Product.
1.4 The following is hereby added as section 1.5.2 to the
Agreement: "Device Manufacturer Product" means any digital device
capable of executing software programs and that may be connected to
or is included as a part of a television device and is loaded with
Licensee’s Product.
2.0 Additional Technology Exhibits.
Exhibit C-3, C-4, and C-5
attached hereto, are hereby added to the Agreement.
3.0 Schedule of Fees and Royalties.
The following shall apply to the
Technologies added in Exhibits C-3, C-4, and C-5:
a. Upfront Source License
Fee : Except with regard to CDC-HI, no upfront source license
fees shall apply to the Technologies added by this Amendment. With
respect to CDC-HI, an annual upfront source license fee in the
amount of fifty thousand dollars ($50,000.00) per year shall apply
upon delivery of the source code form of CDC-HI. Notwithstanding
anything to the contrary in the Agreement, Sun shall have no
obligation to deliver any implementation of CDC-HI to Licensee
except upon mutual agreement with Licensee and subject to
Licensee’s
payment of the foregoing fee (and Licensee may not accept source
code of CDC-HI from any Sun licensee unless expressly permitted by
Sun in writing).
b. Source Support (if
applicable) : as set forth in separate support agreement.
c. Java Test
Suite Support Fee : as set forth in the separate Java Test
Suite support agreement.
d. Binary Distribution
Royalties per unit Prepayment :
i.
Licensee agrees to pay a non-refundable, non-transferable "Royalty
Prepayment" in the amount of three million, sixty-thousand dollars
($3.06M) no later than July 29, 2005. Royalties due for units
distributed on or before December 28, 2009 may be satisfied by
deduction against the Royalty Prepayment. Any portion of the
Royalty Prepayment not used by December 28, 2009, shall be
deemed forfeited. Upon timely payment of the Royalty Prepayment,
Licensee shall not be obligated to pay the Minimum Payment due
pursuant to Section 4 of Amendment no. 1, as amended by
Amendment no. 2, and no further payments shall be due by Licensee
under the Agreement except for such amounts which may become
payable under this Amendment.
ii.
Licensee must pay a royalty to Sun as provided below for each
Licensee Product unit distributed. Payment of royalties shall be
made quarterly, shall be due thirty (30) days following the
end of the calendar quarter to which they relate, and shall be
submitted with a written statement documenting the basis for the
royalty calculation. In any quarter in which no royalties are owed,
Licensee will submit a report so indicating. For eac
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