EXHIBIT:10.4
AMENDMENT TO INTELLECTUAL PROPERTY AGREEMENT
This Amendment, dated as of March 31, 2003 is made by and
between MOTH Holdings, Inc., a Delaware corporation, and Warner Communications
Inc., a Delaware corporation, ("Holdco") (collectively, the "Parties").
WHEREAS, the Parties are parties to an Intellectual Property
Agreement, dated as of August 20, 2002 (the "TWIC Intellectual Property
Agreement"), pursuant to which the Parties have allocated to the Company the
intellectual property assets related to the TWIC Broadband Business; and
WHEREAS, the Parties now wish to amend the TWIC Intellectual
Property Agreement to clarify the definition of Existing TWIC Broadband Group
Patents and certain other definitions; and
NOW THEREFORE, in consideration of the mutual promises and
covenants herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
1. Definitions. Terms used and not defined herein shall
have the meanings assigned to them in the TWIC Intellectual Property Agreement.
2. The definition of "Company" is hereby amended and
restated in its entirety as follows:
"Company" means MOTH Holdings, Inc., a Delaware corporation
formerly named New MOTH Holdings, Inc.; provided, that with respect to periods
prior to the effective time of the merger of MOTH Holdings, Inc., a Delaware
corporation formerly named MediaOne TWE Holdings, Inc. (the "Company
Predecessor") with and into the Company, "Company" shall also mean the Company
Predecessor.
3. A definition of "TWIC Broadband Business" is hereby
added and stated in its entirety as follows:
"TWIC Broadband Business" shall have the meaning set forth in
the TWIC Contribution Agreement.
4. The definition of "TWIC Contribution Agreement" is
hereby amended and restated in its entirety as follows:
"TWIC Contribution Agreement" shall mean the Amended and
Restated Contribution Agreement, dated as of the date hereof, by and among the
Company, Holdco and AOL Time Warner Inc., a Delaware corporation.
5. A definition of "TWIC Non-Broadband Group" is hereby
added and stated in its entirety as follows:
"TWIC Non-Broadband Group" shall mean (a) before the Closing,
TWIC (other than any divisions of TWIC that are primarily engaged in the TWIC
Broadband Business) and any direct or indirect Subsidiary of TWIC that is not a
TWIC Broadband Member and (b) at or following the Closing, TWIC and its
Subsidiaries (including their respective successors and assigns).
6. A definition of "TWIC Non-Broadband Member" is hereby
added and stated in its entirety as follows:
"TWIC Non-Broadband Member" shall mean any Person in the TWIC
Non-Broadband Group.
7. A second sentence is hereby added to Section 5 of the
TWIC Intellectual Property Agreement and stated in its entirety as follows:
"Any Patents existing prior to the Closing that were invented
or developed by one or more TWIC Broadband Members and one or more TWIC
Non-Broadband Members shall be owned jointly by the TWIC Non-Broadband Group and
the TWIC Broadband Group and shall be referred to as "Joint Patents."
6. The third sentence of Section 5 of the TWIC
Intellectual Property Agreement is hereby amended and restated in its entirety
as follows:
"Patents owned by the TWIC Broadband Group as well as the TWIC
Broadband Group's interest in the Joint Patents are referred to as "Existing
TWIC Broadband Group Patents."
7. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument. Except to the extent specifically
amended and supplemented hereby, all of the items, conditions and provisions of
the TWIC Intellectual Property Agreement shall remain unmodified, and the TWIC
Intellectual Property Agreement, as amended and supplemented by this Amendment,
is confirmed as being in full force and effect.
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IN WITNESS WHEREOF, the parties have executed this Amendment
to the TWIC Intellectual Property Agreement as of the date first above written
by the respective officers hereunto duly authorized.
MOTH HOLDINGS, INC.
By: /s/ Xxxxxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxxxxx X. Xxxx
Title: Vice President
WARNER COMMUNICATIONS INC.
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
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