Sample Business Contracts

License Agreement [Amendment No. 4] - Carnegie Mellon University and Coda Music Technology Inc.

                 Amendment #4 - Effective December 30, 1998 - to
         License Agreement between CMU and Coda Music Technology/Vivace

The License Agreement made on June 10, 1992 between Carnegie Mellon University
("CMU") and the Coda Music Technology Inc., formerly known as Vivace, Inc., the
name of which was legally changed to Coda Music Technology, Inc. on March 17,
1994, having its current principal office at 6210 Bury Drive, Eden Prairie, MN
55346-1718 ("LICENSEE"), as amended by the letter agreement dated November 12,
1993, Amendment #2 dated May 12, 1994, and Amendment #3 dated August 28, 1996,
is hereby further amended by this Amendment #4 and the parties hereto do hereby
mutually covenant and agree as follows:

A.       Definitions.

1.       The June 10, 1992 License Agreement ("the Original License Agreement")
         as amended by the four Amendments will herein he referred to as the
         "Amended License Agreement" or the "License".

2.       "Previous Amendments" shall mean Amendments #1, 2 and/or 3.

3.       Articles and Paragraphs numbers specified in this Amendment with no
         other reference shall refer to the Original License Agreement.

4.       Paragraph 1.3 is hereby amended to read as follows:

         The term "Licensed Product(s)" shall mean (a) all products and services
         which include, wholly or in part, technology covered by U.S. Patent No.
         4,745,836 (initially called PracticeMate Products), (b) computer
         software based on software developed by CMU called "Piano Tutor" or
         derivative works thereof developed by or for LICENSEE (initially called
         CMU MusicTutor Products), and (c) repertory and/or accompaniment that
         may be used with the foregoing parts (a) and/or (b) of this sentence.
         Licensed Products shall include, but shall not be limited to, all
         products covered under the preceding sentence which (i) are now or were
         previously called Vivace and/or SmartMusic, and/or (ii) are
         applications, software, hardware, repertory, or accompaniment, sold
         either as a branded product under any brand name or without a brand
         name or as an OEM product.

5.       Paragraph 1.4 is hereby amended to read as follows:

         (1) "Net Sales" shall mean total revenues received by LICENSEE from the
         manufacture, use, sale or other disposition of Licensed Products, less
         the total of all:

         (a)      discounts allowed in amounts customary in the trade;

         (b)      sales tariffs, sales duties and/or sales taxes directly
                  imposed and invoiced with reference to particular products or
                  sales dispositions;


         (c)      outbound transportation prepaid or allowed; and

         (d)      amounts allowed or credited on returns.

         No deductions shall be made for commissions paid to individuals whether
         they be with independent sales agencies or regularly employed by
         LICENSEE and on its payroll, or for cost of collections.

         (2) CMU agrees that LICENSEE may distribute free copies of Licensed
         Products to others (either on a stand-alone basis or in conjunction
         with the sale of other products of LICENSEE) with the business goal of
         generating additional sales of repertory and/or accompaniments for use
         therewith. No Net Sales price shall be imputed to such distribution of
         any such free Licensed Products. In exchange, LICENSEE has agreed to
         include sales of repertory and accompaniments in the determination of
         Net Sales.

         (3) In a situation other than that covered by the foregoing paragraph
         (2), if Licensed Product(s) and other software products are sold by
         LICENSEE in one transaction ("Combined Sale") at a single, combined
         price ("Combined Price"), the imputed Net Sales revenue shall be
         calculated according to the following formula:

                  A - shall mean the maximum price charged by LICENSEE during
                      the previous six months for the Licensed Product included
                      in the Combined Sale

                  B - shall mean the maximum price charged by LICENSEE during
                      the previous six months for the other software product(s)
                      included in the Combined Sale

                  C - shall mean the Combined Price minus deductions
                      authorized under sub-paragraph (1) (a) - (d) of amended
                      paragraph 1.4 as set forth in part 5 of this Amendment #4

                  L - shall mean the imputed Net Sale revenue (which is subject
                      to Running Royalties).

                      L shall be calculated by multiplying C times A divided by
                      (A + B)

                      Example: Assume A=100, B=500, C=550; L=550x100/600=91.67.

         (4) In the case of "Combined Hardware Sales", if Licensed Product(s)
         and one or more hardware products are sold by LICENSEE in one
         transaction and at a single, combined price, or if the Licensed Product
         is incorporated in the design of a hardware product sold by LICENSEE,
         the imputed Net Sales revenue shall be calculated according to the
         following formula:

                  Same as for a Combined Software Sale, except -


                  B - shall mean the maximum price charged by LICENSEE during
                      the previous six months for the hardware component(s)
                      included in the Combined Sale, or, if such a price does
                      not exist, the cost to LICENSEE of such component(s).

6.       "Year" shall mean a calendar year during the Term of the License.

7.       The "Effective Date" of this Amendment shall be December 30, 1998

B.       Non-exclusive License; Term of License

1.       Paragraphs 2.1 is hereby amended to read as follows:

         a.       Subject to the other provisions of this License, CMU hereby
                  grants and LICENSEE hereby accepts a nonexclusive world-wide
                  license to make, use and sell Licensed Products.

         b.       "Term" of License: This License shall remain in effect until
                  December 31, 2005 unless Terminated prior to that date under
                  the provisions of this License.

2.       Paragraphs 2.2 and 2.3 are deleted.

C.       Minimum Royalties

Section B and C of Amendment #3 are hereby deleted. Paragraph 4.2 of the License
remains deleted. A new Paragraph 4.3 is hereby added to the License and will
read as follows:

1.       LICENSEE shall pay CMU minimum royalties ("Minimum Royalties") for each
         Year during the Term in the amount of (a) thirty-thousand dollars
         ($30,000) per year and (b) an additional amount calculated by
         multiplying thirty-thousand dollars ($30,000) by the cumulative
         percentage change in the USA Bureau of Labor Statistics Consumer Price
         Index for Urban Wage Earners and Clerical Workers for All Cities
         (CPI-W) between September 1994 and the September preceding the start of
         the Year for which the annual Minimum Royalty is to be paid. CMU will
         calculate during each December (or whenever CPI-W figures for September
         have become available) the total amount of Minimum Royalty due for the
         following Year and will promptly notify LICENSEE of that amount
         ("Amount Due").

2.       LICENSEE will pay CMU the Amount Due for each Year in three equal
         installments which will be due and payable on January 1, April 1, and
         July 1 of that Year.

         Example:  Calculation of Minimum Royalty for 1999:

         CPI-W as of September 1994         147.3
         CPI-W as of September 1998         160.7
         Cumulative percentage change       9.1%
         Amount due for 1999:               $30,000 + ($30,000 x 9.1%) = $32,730
         Amount due 1/1/1999:               $32,730 / 3 = $10,910
         Additional payments of $10,910 shall be due on 4/1/99 and 7/1/99)


D.       Running Royalties

Paragraph 4.1 is hereby amended to read as follows:

1.       "Running Royalties" will be two percent (2%) of Net Sales of each Year
         up to Net Sales of fifteen million dollars ($15,000,000) per year, and
         will be the following percentage of incremental amounts of Net Sales
         above $15 million:

              Net Sales up to $15 million                                  2.0%
              Net Sales exceeding $15 million, up to $17.5 million         1.5%
              Net Sales exceeding $17.5 million, up to $20 million         1.0%
              Net Sales exceeding $20 million, up to $22.5 million         .75%
              Net Sales exceeding $22.5 million                             .5%

         The amount of such Running Royalties for each Year will be calculated
         by LICENSEE promptly following the end of that Year. If Minimum
         Royalties exceed Running Royalties for that Year, no additional
         royalties will be payable; otherwise the difference between Running
         Royalties and the Minimum Royalty for a Year ("Additional Amount")
         shall be due and payable by LICENSEE to CMU on March 1 following the
         end of that Year.

              For example, if Running Royalties for 2001 should amount to
              $60,000 and Minimum Royalties should amount to $40,000, the
              Additional Amount of $20,000 shall be due and payable on March 1,

E.       Warrant

1.       Promptly following the signing of Amendment #4 by all parties, CMU will
         deliver to LICENSEE an Investment Letter (attached as Exhibit A)
         executed by CMU and LICENSEE will issue a Warrant to CMU for the
         purchase of thirty thousand (30,000) shares of Common Stock of Coda
         Music Technology Inc. at a price of one dollar and twenty-five cents
         ($1.25) per share ("Warrant"). Such Warrant may be exercised by its
         holder at any time between the date when all parties have signed this
         Amendment and December 31, 2005. Attached as Exhibit B is a sample copy
         of the Warrant document to be used.

2.       LICENSEE understands that CMU intends to transfer some rights to
         Warrant Shares under the Warrant to one or more of the following
         individuals: Roger B. Dannenberg, Joshua Bloch, Peter Capell, Annabelle
         Joseph, Robert Joseph, Marta Sanchez, Ronald Saul, and John Maloney.
         Prior to approval of any such transfer, CMU shall provide an Investment
         Letter (a sample copy of which is attached as Exhibit C)
         signed by the intended transferee.


F.       No Sublicensing Rights

LICENSEE shall have no rights to sublicense any of its rights under this
License. Paragraphs 2.5, 2.6, 2.7, 2.8, 2.9 and 2.10 are hereby deleted. It is
understood, though, that any individual piece of Licensed Product distributed by
LICENSEE under the License shall carry with it a continuing sublicense
permitting subsequent use, resale, or other redistribution, performance or
display of that individual piece of Licensed Product.

G.       No Other Royalties

Considering the amount of $80,000 already paid, LICENSEE shall owe CMU no
additional royalty payments for calendar year 1998.

For the balance of the Term of the License, LICENSEE will have no royalty
obligations to CMU other than the Running Royalties, Minimum Royalties, and
Warrants provided for in this Amendment.

H.       Infringement

As related to Article VII, LICENSEE hereby agrees to forego any rights to defend
any CMU intellectual property rights ("Rights" as defined in Paragraph 1.2).

I.       Reporting

Section D of Amendment #3 is hereby deleted. Paragraph 5.2 is hereby amended to
read as follows:

During the Term of the License, within forty-five (45) days of the end of each
calendar quarter, LICENSEE shall provide CMU with a written report stating the
number of Licensed Products sold, Net Sales, and a calculation of the royalties
due to CMU for such sales during the preceding calendar quarter and cumulatively
for the Year. Such written report shall also include a breakdown of such sales,
indicating (but only to the extent LICENSEE breaks down such sales in, and with
the definitions used in, LICENSEE'S own internal reporting):

         (a)      Net Sales of Licensed Products sold -- by major categories
                  such as repertory / accompaniment, application software,
                  application hardware, etc., and in total;

         (b)      Number of Licensed Products Units sold -- by major categories
                  as defined in LICENSEE'S own internal reporting, such as
                  repertory, accompaniment, application software, application
                  hardware, Combined Products, etc.

         (c)      Number of Coda / Vivace / SmartMusic Assessment products sold
                  - (1) as a separate unit or module, and/or (2) as a built-in
                  component or function of other Vivace / Coda / SmartMusic

Where classifications for such reporting should be unclear, LICENSEE may consult
with CMU as to the proper classification and/or interpretation of such written


J.       Other Provisions

1.       Except as hereby amended in Amendment #4, the provisions of the
         original License Agreement and of the first three Amendments, all as
         subsequently amended, shall continue in full force and effect and
         constitute this License.

2.       If any provision of Amendment #4 should be in conflict with the
         Original License Agreement and/or Previous Amendments, the provisions
         of this Amendment #4 shall control.

3.       LICENSEE shall not (a) pursue any of the following actions itself nor
         (b) induce any other party to pursue such actions nor (c) knowingly
         support or be a party to any such actions by any other party, unless
         required to do so under a court order not obtained with the consent of

         (1) to question the validity of this License and/or the Rights defined
             in paragraph 1.2.

         (2) to seek recovery of moneys paid by LICENSEE to CMU.

K.       Notices (General)

Article XIV is amended as follows:  The designated name and address for
                                    CMU shall be --

         Mark Coticchia, Director of Technology Transfer
         Carnegie Mellon University, Warner Hall 407
         5000 Forbes Avenue
         Pittsburgh, PA 15213-3890
         Fax  412-268-7395

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IN WITNESS WHEREOF, the parties have executed this agreement, with the intention
of being legally bound, as of December 30, 1998.

The undersigned confirm that they have the authority to bind to this Agreement
the party on behalf of which they are executing below.

Accepted and agreed to:

For Coda Music Technology, Inc.

/s/ Ron Raup                                                          
Ron Raup
President and Chief Operating Officer

For Carnegie Mellon University

/s/ Susan Burkett                               /s/ Mark E. Coticchia 
Susan Burkett                                   Mark E. Coticchia
Associate Provost                               Director of Technology Transfer