<PAGE>
As filed with the Securities and Exchange Commission on August 19, 1996
Registration No. 333-09591
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________
SPLASH TECHNOLOGY HOLDINGS, INC.
(Exact Name of Registrant as Specified in Its Charter)
_____________________________________
DELAWARE 3577 77-0418472
-----------------
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification No.)
Incorporation or Classification
Organization) Code Number)
______________________
555 DEL REY AVENUE
SUNNYVALE, CALIFORNIA 94086
(408) 328-6300
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
___________________________________
KEVIN K. MACGILLIVRAY
PRESIDENT AND CHIEF EXECUTIVE OFFICER
SPLASH TECHNOLOGY HOLDINGS, INC.
555 DEL REY AVENUE
SUNNYVALE, CALIFORNIA 94086
(408) 328-6300
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
_________________________________
Copies to:
JEFFREY D. SAPER, ESQ. CARLA S. NEWELL, ESQ.
HOWARD S. ZEPRUN, ESQ. ANTHONY M. ALLEN, ESQ.
BRETT D. BYERS, ESQ. GUNDERSON DETTMER STOUGH
WILSON SONSINI GOODRICH & ROSATI, VILLENEUVE FRANKLIN & HACHIGIAN, LLP
PROFESSIONAL CORPORATION 600 HANSEN WAY, SECOND FLOOR
650 PAGE MILL ROAD PALO ALTO, CALIFORNIA 94304
PALO ALTO, CALIFORNIA 94304-1050 (415) 843-0500
(415) 493-9300
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If this Form is filed to register additional securities for an Offering
pursuant to rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same Offering.[_] ___________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same Offering.[_] ___________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, please check the following box. [_]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
============================================================================================================
TITLE OF EACH CLASS OF AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED (1) OFFERING PRICE AGGREGATE OFFERING REGISTRATION FEE
PER SHARE (2) PRICE (1) (2)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par value . shares $. $34,500,000 $11,896.64
============================================================================================================
============================================================================================================
</TABLE>
(1) Includes up to . shares of Common Stock ($4,500,000 aggregate offering
price) which may be purchased by the Underwriters to cover over-allotments,
if any.
(2) Estimated pursuant to Rule 457(a) solely for the purpose of calculating the
registration fee.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE>
The purpose of this Amendment No. 1 is solely to file certain exhibits to
the Registration Statement, as set forth below in Item 16(a) of Part II.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable in connection with the sale of
the Common Stock being registered hereby. All amounts are estimates except the
SEC registration fee and the NASD filing fee.
<TABLE>
<CAPTION>
AMOUNT TO BE
PAID BY
REGISTRANT
--------------
<S> <C>
SEC Registration Fee..................................... $ 11,897
NASD Filing Fee.......................................... 3,950
Nasdaq National Market Application Fee................... 50,000
Printing................................................. 160,000
Legal Fees and Expenses.................................. 250,000
Accounting Fees and Expenses............................. 410,000
Blue Sky Fees and Expenses............................... 15,000
Director and Officer Liability Insurance................. 250,000
Custodial Fees........................................... 2,500
Transfer Agent and Registrar Fees........................ 10,000
Miscellaneous............................................ 36,653
--------
Total............................................... $1,200,000
=========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "Delaware Law")
authorizes a court to award, or a corporation's Board of Directors to grant,
indemnity to directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended (the "Securities Act"). Article Ten of the Registrant's Certificate
of Incorporation (Exhibit 3.1 hereto) and Article VI of the Registrant's Bylaws
(Exhibit 3.2 hereto) provide for indemnification of the Registrant's directors,
officers, employees and other agents to the maximum extent permitted by Delaware
Law. In addition, the Registrant has entered into Indemnification Agreements
(Exhibit 10.1 hereto) with its officers and directors. The Underwriting
Agreement (Exhibit 1.1) also provides for cross-indemnification among the
Company and the Underwriters with respect to certain matters, including matters
arising under the Securities Act.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
Since September 30, 1995, the Registrant has issued and sold the following
unregistered securities:
1. On January 30, 1996, the Registrant issued and sold an aggregate of
152,500 shares of Common Stock to four members of management pursuant to
restricted stock purchase agreements for aggregate cash consideration of $6,100.
2. On January 30, 1996, the Registrant issued and sold an aggregate of
15,426 shares of mandatorily redeemable Series A Preferred Stock to Summit
Subordinated Debt Fund, Summit Ventures IV, L.P., Summit
II-1
<PAGE>
Investors III, L.P., Sigma Partners III, L.P., sigma Associates III, L.P. and
Sigma Investors III, L.P. pursuant to the Purchase Agreement for an aggregate
cash consideration of $15,426.
3. On January 30, 1996, the Registrant issued and sold an aggregate of
4,282 shares of Series B Preferred Stock to Radius Inc. in return for a portion
of its ownership of Splash Technology, Inc.
4. On January 31, 1996, the Registrant issued a warrant to purchase an
aggregate of 2,500 shares of Common Stock to Imperial Bank for an aggregate cash
consideration of $1.00.
There was no underwriter involved in connection with any transaction set
forth above. The issuances of the securities set forth in paragraph 1 of this
Item 15 were deemed to be exempt from registration under the Securities Act in
reliance upon Rule 701 promulgated thereunder. The other issuances set forth in
this Item 15 were deemed to be exempt from registration pursuant to Section 4(2)
of the Securities Act and Regulation D promulgated thereunder as a transaction
by an issuer not involving a public offering.
In all of such transactions, the recipients of securities represented their
intention to acquire the securities for investment only and not with a view to
or for sale in connection with any distribution thereof, and appropriate legends
were affixed to the securities issued.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENTS SCHEDULES
(A) EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
----------- ------------------------------------------------
<S> <C>
1.1 Form of Underwriting Agreement.
2.1 Merger Agreement, dated December 21, 1995, among
Summit Subordinated Debt Fund, L.P., Summit
Ventures IV, L.P., Summit Investors II, L.P.,
Splash Technology Holdings, Inc. and Splash Merger
Company, Inc.
Radius Inc., Splash Technology, Inc.,
2.2 Amendment No. 1 to Merger Agreement dated
January 30, 1996.
3.1 Certificate of Incorporation of Registrant.
3.2 Form of Amended and Restated Certificate of
Incorporation of Registrant.
3.3 Bylaws of Registrant.
3.4 Form of Amended and Restated Bylaws of Registrant.
3.5 Form of Amended and Restated Certificate of
Incorporation of Registrant to be filed after the
closing of the Offering, the redemption of the
Series A Preferred Stock and the conversion of the
Series B Preferred Stock.
4.1 Warrant, dated January 31, 1996, issued by
Registrant to Imperial Bank.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati,
Professional Corporation.
10.1 Form of Indemnification Agreement.
10.2 1996 Stock Option Plan and form of Stock Option
Agreement.
10.3 1996 Employee Stock Purchase Plan and form of
Subscription Agreement.
10.4 Registration Rights Agreement dated January 30,
1996 among the Registrant and certain stockholders
of the Registrant.
10.5+ Configurable Postscript Interpreter OEM License
Agreement dated September 18, 1992 between the
Registrant and Adobe Systems Incorporated.
10.6+ Xerox and SMT Hardware Purchase and Software
Development/License Agreement between the
Registrant and Xerox Corporation dated November
13, 1993.
10.7 Property Lease covering Registrant's facilities in
Sunnyvale, California.
10.8 Security and Loan Agreement dated January 31,
1996, between the Registrant and Imperial Bank.
11.1 Computation Regarding Earnings Per Share.
21.1 Subsidiaries of Registrant.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2* Consent of Wilson Sonsini Goodrich & Rosati,
Professional Corporation (included in Exhibit
5.1).
24.1 Power of Attorney (see page II-4).
- --------------------
* To be supplied by amendment.
+ Confidential treatment requested.
</TABLE>
II-2
<PAGE>
(B) FINANCIAL STATEMENT SCHEDULES
Schedule II - Valuation and Qualifying Accounts
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions referenced in Item 14 of this Registration
Statement or otherwise, the Registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities Act, and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered hereunder, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of this prospectus
filed as part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this Registration Statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the Offering of such securities at that
time shall be deemed to be the initial bona fide Offering thereof.
The undersigned Registrant hereby undertakes to provide to the Underwriters
at the closing, as specified in the Underwriting Agreement, certificates in such
denomination and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Sunnyvale, State of
California, on August 19, 1996.
SPLASH TECHNOLOGY HOLDINGS, INC.
BY: /S/ KEVIN K. MACGILLIVRAY
------------------------------------------
Kevin K. Macgillivray,
President and Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ---------------------------------- ----------------------------- -------------------------
<S> <C> <C>
/s/ Kevin K. Macgillivray Director, President and Chief August 19, 1996
- ---------------------------------- Officer (Principal Executive
Kevin K. Macgillivray Officer)
/s/ Joan P. Platt* Chief Financial Officer and August 19, 1996
- ---------------------------------- Vice President, Finance and
Joan P. Platt Administration (Principal
Financial and Accounting Officer)
/s/ Gregory M. Avis* Director August 19, 1996
- ----------------------------------
Gregory M. Avis
/s/ Charles W. Berger* Director August 19, 1996
- ----------------------------------
Charles W. Berger
/s/ Peter Y. Chung* Director August 19, 1996
- ----------------------------------
Peter Y. Chung
/s/ Lawrence G. Finch* Director August 19, 1996
- ----------------------------------
Lawrence G. Finch
*By: /s/ Kevin K. Macgillivray
-----------------------------
Kevin K. Macgillivray
Attorney-in-fact
</TABLE>
II-4
<PAGE>
SPLASH TECHNOLOGY HOLDINGS, INC.
--------------------------------
REPORT ON FINANCIAL STATEMENT SCHEDULE
--------------------------------------
In connection with our audit of the consolidated financial statements of
Splash Technology Holdings, Inc., and its subsidiaries as of June 30, 1996 and
for the five months ended June 30, 1996, and in connection with our audit of the
Predecessor Business as of September 30, 1994 and 1995, and for the years then
ended and for the four months ended January 31, 1996, which financial statements
are included in the Prospectus, we have also audited the financial statement
schedules listed in Item 16(b) herein.
In our opinion, this financial statement schedule, when considered in relation
to the basic consolidated financial statements taken as a whole, present fairly,
in all material respects, the information required to be included therein.
Coopers & Lybrand L.L.P.
San Jose, California
July 31, 1996
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
---------- -------------------------------------------------------------
<S> <C>
1.1 Form of Underwriting Agreement.
2.1 Merger Agreement, dated December 21, 1995, among Radius Inc.,
Splash Technology, Inc., Summit Subordinated Debt Fund, L.P.,
Summit Ventures IV, L.P., Summit Investors II, L.P., Splash
Technology Holdings, Inc. and Splash Merger Company, Inc.
2.2 Amendment No. 1 to Merger Agreement dated January 30, 1996.
3.1 Certificate of Incorporation of Registrant.
3.2 Form of Amended and Restated Certificate of Incorporation of
Registrant.
3.3 Bylaws of Registrant.
3.4 Form of Amended and Restated Bylaws of Registrant.
3.5 Form of Amended and Restated Certificate of Incorporation
of Registrant to be filed after the closing of the Offering,
the redemption of the Series A Preferred Stock and the
conversion of the Series B Preferred Stock.
4.1 Warrant, dated January 31, 1996, issued by Registrant to
Imperial Bank.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
10.1 Form of Indemnification Agreement.
10.2 1996 Stock Option Plan and form of Stock Option Agreement.
10.3 1996 Employee Stock Purchase Plan and form of Subscription
Agreement.
10.4 Registration Rights Agreement dated January 30, 1996 among
the Registrant and certain stockholders of the Registrant.
10.5+ Configurable Postscript Interpreter OEM License Agreement
dated September 18, 1992 between the Registrant and Adobe
Systems Incorporated.
10.6+ Xerox and SMT Hardware Purchase and Software
Develpoment/License Agreement between the Registrant and
Xerox Corporation dated November 13, 1993.
10.7 Property Lease covering Registrant's facilities in Sunnyvale,
California.
10.8 Security and Loan Agreement dated January 31, 1996, between
the Registrant and Imperial Bank.
11.1 Computation Regarding Earnings Per Share.
21.1 Subsidiaries of Registrant.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2* Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in Exhibit 5.1).
24.1 Power of Attorney (see page II-4).
- --------------------
* To be supplied by amendment.
+ Confidential treatment requested.
</TABLE>
<PAGE>
EXHIBIT 1.1
_______________ Shares
Splash Technology Holdings, Inc.
Common Stock
($_____ Par Value)
UNDERWRITING AGREEMENT
----------------------
__________________, 1996
Alex. Brown & Sons Incorporated
Montgomery Securities
As Representatives of the
Several Underwriters
c/o Alex. Brown & Sons Incorporated
135 East Baltimore Street
Baltimore, Maryland 21202
Ladies and Gentlemen:
Splash Technology Holdings, Inc., a Delaware corporation (the
"Company"), and certain stockholders of the Company (the "Selling Stockholders")
propose to sell to the several underwriters (the "Underwriters") named in
Schedule I hereto for whom you are acting as representatives (the
"Representatives") an aggregate of _________ shares of the Company's Common
Stock, $_____ par value (the "Firm Shares"), of which ________ shares will be
sold by the Company and ________ shares will be sold by the Selling
Stockholders. The respective amounts of the Firm Shares to be so purchased by
the several Underwriters are set forth opposite their names in Schedule I
hereto, and the respective amounts to be sold by the Selling Stockholders are
set forth opposite their names in Schedule II hereto. The Company and the
Selling Stockholders are sometimes referred to herein collectively as the
"Sellers." The Company also proposes to sell at the Underwriters' option an
aggregate of up to _______ additional shares of the Company's Common Stock (the
"Option Shares") as set forth below.
As the Representatives, you have advised the Company and the Selling
Stockholders (a) that you are authorized to enter into this Agreement on behalf
of the several Underwriters, and (b) that the several Underwriters are willing,
acting severally and not jointly, to purchase the numbers of Firm Shares set
forth opposite their respective names in Schedule I, plus their pro rata portion
of the Option Shares if you elect to exercise the over-allotment option in whole
or in part for the accounts of the several Underwriters. The Firm Shares and the
Option Shares (to the extent the aforementioned option is exercised) are herein
collectively called the "Shares."
<PAGE>
In consideration of the mutual agreements contained herein and of the
interest of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. Representations and Warranties of the Company and the Selling
-------------------------------------------------------------
Stockholders.
------------
(a) The Company represents and warrants to each of the Underwriters
as follows:
(i) A registration statement on Form S-1 (File No.
333-_______) with respect to the Shares has been carefully prepared by the
Company in conformity with the requirements of the Securities Act of 1933, as
amended (the "Act"), and the Rules and Regulations (the "Rules and Regulations")
of the Securities and Exchange Commission (the "Commission") thereunder and has
been filed with the Commission. Copies of such registration statement, including
any amendments thereto, the preliminary prospectuses (meeting the requirements
of the Rules and Regulations) contained therein and the exhibits, financial
statements and schedules, as finally amended and revised, have heretofore been
delivered by the Company to you. Such registration statement, together with any
registration statement filed by the Company pursuant to Rule 462(b) of the Act,
herein referred to as the "Registration Statement," which shall be deemed to
include all information omitted therefrom in reliance upon Rule 430A and
contained in the Prospectus referred to below, has become effective under the
Act and no post-effective amendment to the Registration Statement has been filed
as of the date of this Agreement. "Prospectus" means (a) the form of prospectus
first filed with the Commission pursuant to Rule 424(b) or (b) the last
preliminary prospectus included in the Registration Statement filed prior to the
time it becomes effective or filed pursuant to Rule 424(a) under the Act that is
delivered by the Company to the Underwriters for delivery to purchasers of the
Shares, together with the term sheet or abbreviated term sheet filed with the
Commission pursuant to Rule 424(b)(7) under the Act. Each preliminary prospectus
included in the Registration Statement prior to the time it becomes effective is
herein referred to as a "Preliminary Prospectus."
(ii) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own or lease its properties and conduct its
business as described in the Registration Statement. Each of Splash Technology,
Inc. and Splash Technology S.a.r.l. (collectively, the "Subsidiaries") has been
duly organized and is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, with corporate power and
authority to own or lease its properties and conduct its business as described
in the Registration Statement. The Subsidiaries are the only subsidiaries,
direct or indirect, of the Company. The Company and each of the Subsidiaries are
duly qualified to transact business in all jurisdictions in which the conduct of
their business requires such qualification. The outstanding shares of capital
stock of each of the Subsidiaries have been duly authorized and validly issued,
are fully paid and non-assessable and are owned by the Company or another
Subsidiary free and clear of all liens, encumbrances and equities and claims;
and no options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligations into shares of
capital stock or ownership interests in the Subsidiaries are outstanding.
2
<PAGE>
(iii) The outstanding shares of capital stock of the Company,
including all shares to be sold by the Selling Stockholders, have been duly
authorized and validly issued and are fully paid and non-assessable; the Shares
to be issued and sold by the Company have been duly authorized and when issued
and paid for as contemplated herein will be validly issued, fully paid and non-
assessable; and no preemptive rights of stockholders exist with respect to any
of the Shares or the issue and sale thereof. Neither the filing of the
Registration Statement nor the offering or sale of the Shares as contemplated by
this Agreement gives rise to any rights, other than those that have been waived
or satisfied, for or relating to the registration of any shares of Common Stock.
(iv) The information set forth under the caption
"Capitalization" in the Prospectus is true and correct. All of the Shares
conform to the description thereof contained in the Registration Statement. The
form of certificates for the Shares conforms to the corporate law of the
jurisdiction of the Company's incorporation.
(v) The Commission has not issued an order preventing or
suspending the use of any Prospectus relating to the proposed offering of the
Shares nor instituted proceedings for that purpose. The Registration Statement
contains, and the Prospectus and any amendments or supplements thereto will
contain, all statements which are required to be stated therein by, and will
conform, to the requirements of the Act and the Rules and Regulations. The
Registration Statement and any amendment thereto do not contain, and will not
contain, any untrue statement of a material fact and do not omit, and will not
omit, to state any material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus and any amendments
and supplements thereto do not contain, and will not contain, any untrue
statement of material fact; and do not omit, and will not omit, to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations or
warranties as to information contained in or omitted from the Registration
Statement or the Prospectus, or any such amendment or supplement, in reliance
upon, and in conformity with, written information furnished to the Company by or
on behalf of any Underwriter through the Representatives, specifically for use
in the preparation thereof.
(vi) The consolidated financial statements of the Company and
the Subsidiaries, together with related notes and schedules as set forth in the
Registration Statement, present fairly the financial position and the results of
operations and cash flows of the Company and the consolidated Subsidiaries, at
the indicated dates and for the indicated periods. Such financial statements and
related schedules have been prepared in accordance with generally accepted
accounting principles, consistently applied throughout the periods involved,
except as disclosed herein, and all adjustments necessary for a fair
presentation of results for such periods have been made. The summary financial
and statistical data included in the Registration Statement presents fairly the
information shown therein and such data has been compiled on a basis consistent
with the financial statements presented therein and the books and records of the
Company. The pro forma financial statements and other pro forma financial
information included in the Registration Statement and the Prospectus present
fairly the information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with
3
<PAGE>
respect to pro forma financial statements, have been properly compiled on the
pro forma bases described therein, and, in the opinion of the Company, the
assumptions used in the preparation thereof are reasonable and the adjustments
used therein are appropriate to give effect to the transactions or circumstances
referred to therein.
(vii) Coopers & Lybrand, L.L.P., who have certified certain of
the financial statements filed with the Commission as part of the Registration
Statement, are independent public accountants as required by the Act and the
Rules and Regulations.
(viii) There is no action, suit, claim or proceeding pending or,
to the knowledge of the Company, threatened against the Company or any of the
Subsidiaries before any court or administrative agency or otherwise which if
determined adversely to the Company or any of its Subsidiaries might result in
any material adverse change in the earnings, business, management, properties,
assets, rights, operations, condition (financial or otherwise) or prospects of
the Company and the Subsidiaries taken as a whole or to prevent the consummation
of the transactions contemplated hereby, except as set forth in the Registration
Statement.
(ix) The Company and the Subsidiaries have good and marketable
title to all of the properties and assets reflected in the financial statements
(or as described in the Registration Statement) hereinabove described, subject
to no lien, mortgage, pledge, charge or encumbrance of any kind except those
reflected in such financial statements (or as described in the Registration
Statement) or which are not material in amount. The Company and the Subsidiaries
occupy their leased properties under valid and binding leases conforming in all
material respects to the description thereof set forth in the Registration
Statement.
(x) The Company and the Subsidiaries have filed all Federal,
State, local and foreign income tax returns that have been required to be filed
and have paid all taxes indicated by said returns and all assessments received
by them or any of them to the extent that such taxes have become due. All tax
liabilities have been adequately provided for in the financial statements of the
Company.
(xi) Since the respective dates as of which information is
given in the Registration Statement, as it may be amended or supplemented, there
has not been any material adverse change or any development involving a
prospective material adverse change in or affecting the earnings, business,
management, properties, assets, rights, operations, condition (financial or
otherwise), or prospects of the Company and its Subsidiaries taken as a whole,
whether or not occurring in the ordinary course of business, and there has not
been any material transaction entered into or any material transaction that is
probable of being entered into by the Company or the Subsidiaries, other than
transactions in the ordinary course of business and changes and transactions
described in the Registration Statement, as it may be amended or supplemented.
The Company and the Subsidiaries have no material contingent obligations that
are not disclosed in the Registration Statement.
(xii) Neither the Company nor any of the Subsidiaries is or with
the giving of notice or lapse of time or both, will be, in violation of or in
default under its Charter or By-Laws or under any agreement, lease, contract,
indenture or other instrument or obligation to
4
<PAGE>
which it is a party or by which it, or any of its properties, is bound and which
violation or default is of material significance in respect of the condition,
financial or otherwise of the Company and its Subsidiaries taken as a whole or
the business, management, properties, assets, rights, operations, condition
(financial or otherwise) or prospects of the Company and the Subsidiaries taken
as a whole. The execution and delivery of this Agreement and the consummation of
the transactions herein contemplated and the fulfillment of the terms hereof
will not conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust or
other agreement or instrument to which the Company or any Subsidiary is a party,
or of the Charter or by-laws of the Company or any order, rule or regulation
applicable to the Company or any Subsidiary of any court or of any regulatory
body or administrative agency or other governmental body having jurisdiction.
(xiii) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Company of this Agreement and the consummation of the transactions herein
contemplated (except such additional steps as may be required by the Commission,
the National Association of Securities, Inc. (the "NASD") or such additional
steps as may be necessary to qualify the Shares for public offering by the
Underwriters under state securities or Blue Sky laws) has been obtained or made
and is in full force and effect.
(xiv) The Company and each of the Subsidiaries holds all
material licenses, certificates and permits from governmental authorities which
are necessary to the conduct of their businesses; except where the failure to
have such licenses, certificates and permits would not, singly or in the
aggregate, have a material adverse effect on the business or financial condition
of the Company and the Subsidiaries, taken as a whole.
(xv) The Company and each of the Subsidiaries owns or possess
licenses or other rights to use all patents, trademarks, service marks, trade
names, copyrights, mask work rights, technology know-how and other intellectual
property rights ("Intellectual Property") necessary to conduct the business now
or proposed to be conducted by the Company and each of the Subsidiaries as
described in the Prospectus, and, except as disclosed in the Prospectus, neither
the Company nor any of its Subsidiaries has received any notice of infringement
of or conflict with (or knows of such infringement of or conflict with) asserted
rights of others with respect to the Intellectual Property which, individually
or in the aggregate, could reasonably be expected to result in any material
adverse effect upon the condition, financial or otherwise, of the Company and
the Subsidiaries, taken as a whole; and, except as disclosed in the Prospectus
and to the knowledge of the Company and each of its Subsidiaries, do not in the
conduct of their business as now or proposed to be conducted as described in the
Prospectus, infringe or conflict with any Intellectual Property of any third
party, or any discovery, invention, product or process which is the subject of a
patent application filed by any thirty party, known to the Company or any of the
Subsidiaries.
(xvi) Neither the Company, nor to the Company's best knowledge,
any of its affiliates, has taken or may take, directly or indirectly, any action
designed to cause or
5
<PAGE>
result in, or which has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of the shares of
Common Stock to facilitate the sale or resale of the Shares. The Company
acknowledges that the Underwriters may engage in passive market making
transactions in the Shares on The Nasdaq National Market in accordance with Rule
10b-6A under the Exchange Act.
(xvii) Neither the Company nor any Subsidiary is an "investment
company" within the meaning of such term under the Investment Company Act of
1940 and the rules and regulations of the Commission thereunder.
(xviii) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(xix) The Company and each of its Subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is adequate for
the conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar industries.
(xx) The Company is in compliance in all material respects
with all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in ERISA) for
which the Company would have any liability; the Company has not incurred and
does not expect to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (i) Sections 412 or
4971 of the Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "Code"); and each "pension plan"
for which the Company would have any liability that is intended to be qualified
under Section 401(a) of the code is so qualified in all material respects and
nothing has occurred, whether by action or by failure to act, which would cause
the loss of such qualification.
(xxi) The Company has obtained the agreement of each of its
officers, directors and holders of the Company's outstanding capital stock, not
to sell, grant any option to sell or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into, or
exercisable or exchangeable for Common Stock or other rights to purchase Common
Stock of the Company for a period of 180 days after the effective date of the
Registration Statement without the prior written consent of Alex. Brown & Sons
Incorporated. The Company has further entered into an agreement with each of the
holders of its securities restricting the sale or other disposition of said
securities and the Company will not permit any
6
<PAGE>
sale or disposition of such securities for a period of 180 days after the
effective date of the Registration Statement, directly or indirectly, except
with the prior written consent of Alex. Brown & Sons Incorporated.
(xxii) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter 92-198,
An Act Relating to Disclosure of doing Business with Cuba, and the Company
- ---------------------------------------------------------
further agrees that if it commences engaging in business with the government of
Cuba or with any person or affiliate located in Cuba after the date the
Registration Statement becomes or has become effective with the Commission or
with the Florida Department of Banking and Finance (the "Department"), whichever
date is later, or if the information reported or incorporated by reference in
the Prospectus, if any, concerning the Company's business with Cuba or with any
person or affiliate located in Cuba changes in any material way, the Company
will provide the Department notice of such business or change, as appropriate,
in a form acceptable to the Department.
(b) Each of the Selling Stockholders severally represents and
warrants as follows:
(i) Such Selling Stockholder now has and at the Closing Date
(as such date is hereinafter defined) will have good and marketable title to the
Firm Shares to be sold by such Selling Stockholder, free and clear of any liens,
encumbrances, equities and claims, and full right, power and authority to effect
the sale and delivery of such Firm Shares; and upon the delivery of, against
payment for, such Firm Shares pursuant to this Agreement, the Underwriters will
acquire good and marketable title thereto, free and clear of any liens,
encumbrances, equities and claims.
(ii) Such Selling Stockholder has full right, power and
authority to execute and deliver this Agreement, the Power of Attorney, and the
Custodian Agreement referred to below and to perform its obligations under such
Agreements. The execution and delivery of this Agreement and the consummation by
such Selling Stockholder of the transactions herein contemplated and the
fulfillment by such Selling Stockholder of the terms hereof will not require any
consent, approval, authorization, or other order of any court, regulatory body,
administrative agency or other governmental body (except as may be required
under the Act, state securities laws or Blue Sky laws) and will not result in a
breach of any of the terms and provisions of, or constitute a default under,
organizational documents of such Selling Stockholder, if not an individual, or
any indenture, mortgage, deed of trust or other agreement or instrument to which
such Selling Stockholder is a party, or of any order, rule or regulation
applicable to such Selling Stockholder of any court or of any regulatory body or
administrative agency or other governmental body having jurisdiction.
(iii) Such Selling Stockholder has not taken and will not
take, directly or indirectly, any action designed to, or which has constituted,
or which might reasonably be expected to cause or result in the stabilization or
manipulation of the price of the Common Stock of the Company and, other than as
permitted by the Act, the Selling Stockholder will not distribute any prospectus
or other offering material in connection with the offering of the Shares.
7
<PAGE>
(iv) Without having undertaken to determine independently the
accuracy or completeness of either the representations and warranties of the
Company contained herein or the information contained in the Registration
Statement, such Selling Stockholder has no reason to believe that the
representations and warranties of the Company contained in this Section 1 are
not true and correct, is familiar with the Registration Statement and has no
knowledge of any material fact, condition or information not disclosed in the
Registration Statement which has adversely affected or may adversely affect the
business of the Company or any of the Subsidiaries; and the sale of the Firm
Shares by such Selling Stockholder pursuant hereto is not prompted by any
information concerning the Company or any of the Subsidiaries which is not set
forth in the Registration Statement. The information pertaining to such Selling
Stockholder under the caption "Principal and Selling Stockholders" in the
Prospectus is complete and accurate in all material respects.
2. Purchase, Sale and Delivery of the Firm Shares.
----------------------------------------------
(a) On the basis of the representations, warranties and covenants
herein contained, and subject to the conditions herein set forth, the Sellers
agree to sell to the Underwriters and each Underwriter agrees, severally and not
jointly, to purchase, at a price of $_____ per share, the number of Firm Shares
set forth opposite the name of each Underwriter in Schedule I hereof, subject to
adjustments in accordance with Section 9 hereof. The number of Firm Shares to he
purchased by each Underwriter from each Seller shall be as nearly as practicable
in the same proportion to the total number of Firm Shares being sold by each
Seller as the number of Firm Shares being purchased by each Underwriter bears to
the total number of Firm Shares to be sold hereunder. The obligations of the
Company and of each of the Selling Stockholders shall be several and not joint.
(b) Certificates in negotiable form for the total number of the
Shares to be sold hereunder by the Selling Stockholders have been placed in
custody with _______________ as custodian (the "Custodian") pursuant to the
Custodian Agreement executed by each Selling Stockholder for delivery of all
Firm Shares to be sold hereunder by the Selling Stockholders. Each of the
Selling Stockholders specifically agrees that the Firm Shares represented by the
certificates held in custody for the Selling Stockholders under the Custodian
Agreement are subject to the interests of the Underwriters hereunder, that the
arrangements made by the Selling Stockholders for such custody are to that
extent irrevocable, and that the obligations of the Selling Stockholders
hereunder shall not be terminable by any act or deed of the Selling Stockholders
(or by any other person, firm or corporation including the Company, the
Custodian or the Underwriters) or by operation of law (including the death of an
individual Selling Stockholder or the dissolution of a corporate Selling
Stockholder) or by the occurrence of any other event or events, except as set
forth in the Custodian Agreement. If any such event should occur prior to the
delivery of the Underwriters of the Firm Shares or the Option Shares hereunder,
certificates for the Firm Shares or the Option Shares, as the case may be, shall
be delivered by the Custodian in accordance with the terms and conditions of
this Agreement as if such event has not occurred. The Custodian is authorized to
receive and acknowledge receipt of the proceeds of sale of the Shares held by it
against delivery of such Shares.
8
<PAGE>
(c) Payment for the Firm Shares to be sold hereunder is to be made in
New York Clearing House funds by certified or bank cashier's checks drawn to the
order of the Company for the shares to be sold by it and to the order of
_____________, "as Custodian" for the shares to be sold by the Selling
Stockholders, in each case against delivery of certificates therefor to the
Representatives for the several accounts of the Underwriters. Such payment and
delivery are to be made at the offices of Alex. Brown & Sons Incorporated, 135
East Baltimore Street, Baltimore, Maryland, at 10:00 a.m., Baltimore time, on
the third business day after the date of this Agreement or at such other time
and date not later than five business days thereafter as you and the Company
shall agree upon, such time and date being herein referred to as the "Closing
Date." (As used herein, "business day" means a day on which the New York Stock
Exchange is open for trading and on which banks in New York are open for
business and not permitted by law or executive order to be closed.) The
certificates for the Firm Shares will be delivered in such denominations and in
such registrations as the Representatives request in writing not later than the
second full business day prior to the Closing Date, and will be made available
for inspection by the Representatives at least one business day prior to the
Closing Date.
(d) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company hereby grants an option to the several Underwriters to purchase the
Option Shares at the price per share as set forth in the first paragraph of this
Section 2. The option granted hereby may be exercised in whole or in part by
giving written notice (i) at any time before the Closing Date and (ii) only once
thereafter within 30 days after the date of this Agreement, by you, as
Representatives of the several Underwriters, to the Company, setting forth the
number of Option Shares as to which the several Underwriters are exercising the
option, the names and denominations in which the Option Shares are to be
registered and the time and date at which such certificates are to be delivered.
The time and date at which certificates for Option Shares are to be delivered
shall be determined by the Representatives but shall not be earlier than three
nor later than 10 full business days after the exercise of such option, nor in
any event prior to the Closing Date (such time and date being herein referred to
as the "Option Closing Date"). If the date of exercise of the option is three or
more days before the Closing Date, the notice of exercise shall set the Closing
Date as the Option Closing Date. The number of Option Shares to be purchased by
each Underwriter shall be in the same proportion to the total number of Option
Shares being purchased as the number of Firm Shares being purchased by such
Underwriter bears to the total number of Firm Shares, adjusted by you in such
manner as to avoid fractional shares. The option with respect to the Option
Shares granted hereunder may be exercised only to cover over-allotments in the
sale of the Firm Shares by the Underwriters. You, as Representatives of the
several Underwriters, may cancel such option at any time prior to its expiration
by giving written notice of such cancellation to the Company. To the extent, if
any, that the option is exercised, payment for the Option Shares shall be made
on the Option Closing Date in New York Clearing House funds by certified or bank
cashier's check drawn to the order of the Company against delivery of
certificates therefor at the offices of Alex. Brown & Sons Incorporated, 135
East Baltimore Street, Baltimore, Maryland.
(e) If on the Closing Date or Option Closing Date, as the case may
be, any Selling Stockholder fails to sell the Firm Shares which such Selling
Stockholder has agreed to
9
<PAGE>
sell on such date as set forth in Schedule II hereto, the Company agrees that it
-----------
will sell or arrange for the sale of that number of shares of Common Stock to
the Underwriters which represents Firm Shares which such Selling Stockholder has
failed to so sell, as set forth in Schedule II hereto, or such lesser number as
-----------
may be requested by the Representatives.
3. Offering by the Underwriters.
----------------------------
It is understood that the several Underwriters are to make a public
offering of the Firm Shares as soon as the Representatives deem it advisable to
do so. The Firm Shares are to be initially offered to the public at the initial
public offering price set forth in the Prospectus. The Representatives may from
time to time thereafter change the public offering price and other selling
terms. To the extent, if at all, that any Option Shares are purchased pursuant
to Section 2 hereof, the Underwriters will offer them to the public on the
foregoing terms.
It is further understood that you will act as the Representatives for
the Underwriters in the offering and sale of the Shares in accordance with a
Master Agreement Among Underwriters entered into by you and the several other
Underwriters.
4. Covenants of the Company and the Selling Stockholders.
-----------------------------------------------------
(a) The Company covenants and agrees with the several Underwriters
that:
(i) The Company will (A) use its best efforts to cause the
Registration Statement to become effective or, if the procedure in Rule 430A of
the Rules and Regulations is followed, to prepare and timely file with the
Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form
approved by the Representatives containing information previously omitted at the
time of effectiveness of the Registration Statement in reliance on Rule 430A of
the Rules and Regulations, and (B) not file any amendment to the Registration
Statement or supplement to the Prospectus of which the Representatives shall not
previously have been advised and furnished with a copy or to which the
Representatives shall have reasonably objected in writing or which is not in
compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives promptly (A)
when the Registration Statement or any post-effective amendment thereto shall
have become effective, (B) of receipt of any comments from the Commission, (C)
of any request of the Commission for amendment of the Registration Statement or
for supplement to the Prospectus or for any additional information, and (D) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the use of the Prospectus or of the institution of
any proceedings for that purpose. The Company will use its best efforts to
prevent the issuance of any such stop order preventing or suspending the use of
the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in
endeavoring to qualify the Shares for sale under the securities laws of such
jurisdictions as the Representatives may reasonably have designated in writing
and will make such applications, file such documents, and furnish such
information as may be reasonably required for that purpose,
10
<PAGE>
provided the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction where it
is not now so qualified or required to file such a consent. The Company will,
from time to time, prepare and file such statements, reports and other
documents, as are or may be required to continue such qualifications in effect
for so long a period as the Representatives may reasonably request for
distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the
Representatives, from time to time, as many copies of any Preliminary Prospectus
as the Representatives may reasonably request. The Company will deliver to, or
upon the order of, the Representatives during the period when delivery of a
Prospectus is required under the Act, as many copies of the Prospectus in final
form, or as thereafter amended or supplemented, as the Representatives may
reasonably request. The Company will deliver to the Representatives at or before
the Closing Date, four signed copies of the Registration Statement and all
amendments thereto including all exhibits filed therewith, and will deliver to
the Representatives such number of copies of the Registration Statement
(including such number of copies of the exhibits filed therewith that may
reasonably be requested), and of all amendments thereto, as the Representatives
may reasonably request.
(v) The Company will comply with the Act and the Rules and
Regulations, and the Securities Exchange Act of 1934 (the "Exchange Act"), and
the rules and regulations of the Commission thereunder, so as to permit the
completion of the distribution of the shares as contemplated in this Agreement
and the Prospectus. If during the period in which a prospectus is required by
law to be delivered by an Underwriter or dealer, any event shall occur as a
result of which, in the judgment of the Company or in the reasonable opinion of
the Underwriters, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances existing
at the time the Prospectus is delivered to a purchaser, not misleading, or, if
it is necessary at any time to amend or supplement the Prospectus to comply with
any law, the Company promptly will prepare and file with the Commission an
appropriate amendment to the Registration Statement or supplement to the
Prospectus so that the Prospectus as so amended or supplemented will not, in the
light of the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with the law.
(vi) the Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event no later than
15 months after the effective date of the Registration Statement, an earning
statement (which need not be audited) in reasonable detail, covering a period of
at least 12 consecutive months beginning after the effective date of the
Registration Statement, which earning statement shall satisfy the requirements
of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will
advise you in writing when such statement has been so made available.
(vii) The Company will, for a period of five years from the
Closing Date, deliver to the Representatives copies of annual reports and copies
of all other documents, reports and information furnished by the Company to its
stockholders or filed with any securities
11
<PAGE>
exchange pursuant to the requirements of such exchange or with the Commission
pursuant to the Act or the Securities Exchange Act of 1934, as amended. The
Company will deliver to the Representatives similar reports with respect to
significant subsidiaries, as that term is defined in the Rules and Regulations,
which are not consolidated in the Company's financial statements.
(viii) No offering, sale, short sale or other disposition of
any shares of Common Stock of the Company or other securities convertible into
or exchangeable or exercisable for shares of Common Stock or derivative of
Common Stock (or agreement for such) will be made for a period of 180 days after
the date of this Agreement, directly or indirectly, by the Company otherwise
than hereunder or with the prior written consent of Alex. Brown & Sons
Incorporated except that the Company may, without such consent, issue shares
upon exercise of options issued pursuant to the 1996 Stock Option Plan or the
1996 Employee Stock Purchase Plan provided that each person who receives such
shares from the Company agrees to similar restrictions on transfer.
(ix) The Company will use its best efforts to list, subject
to notice of issuance, the Shares on the Nasdaq National Market.
(x) The Company has caused each officer and director and
holders of the Company's outstanding capital stock to furnish to you, on or
prior to the date of this Agreement, a letter or letters, in form and substance
satisfactory to the Underwriters, pursuant to which each such person shall agree
not to offer, sell, sell short or otherwise dispose of any shares of Common
Stock of the Company or other capital stock of the Company, or any other
securities convertible, exchangeable or exercisable for Common Shares or
derivative of Common Shares owned by such person or request the registration for
the offer or sale of any of the foregoing (or as to which such person has the
right to direct the disposition of) for a period of 180 days after the date of
this Agreement, directly or indirectly, except with the prior written consent of
Alex. Brown & Sons Incorporated ("Lockup Agreements"). The Company has further
entered into an agreement with each of the holders of its securities restricting
the sale or other disposition of said securities and the Company will not permit
any sale or disposition of such securities for a period of 180 days after the
effective date of the Registration Statement, directly or indirectly, except
with the prior written consent of Alex. Brown & Sons Incorporated.
(xi) The Company shall apply the net proceeds of its sale of
the Shares as set forth in the Prospectus and shall file such reports with the
Commission with respect to the sale of the Shares and the application of the
proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the
proceeds received by the Company from its sale of the Shares in such a manner as
would require the Company or any of the Subsidiaries to register as an
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act").
(xiii) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the Company, a registrar
for the Common Stock.
12
<PAGE>
(xiv) The Company will not take, directly or indirectly, any
action designed to cause or result in, or that has constituted or might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any securities of the Company.
(b) Each of the Selling Stockholders covenants and agrees with the
several Underwriters that:
(i) No offering, sale, short sale or other disposition of
any shares of Common Stock of the Company or other capital stock of the Company
or other securities convertible, exchangeable or exercisable for Common Stock or
derivative of Common Stock owned by the Selling Stockholder or request the
registration for the offer or sale of any of the foregoing (or as to which the
Selling Stockholder has the right to direct the disposition of) will be made for
a period of 180 days after the date of this Agreement, directly or indirectly,
by such Selling Stockholder otherwise than hereunder or with the prior written
consent of Alex. Brown & Sons Incorporated.
(ii) In order to document the Underwriters' compliance with
the reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of
1983 with respect to the transactions herein contemplated, each of the Selling
Stockholders agrees to deliver to you prior to or at the Closing Date a properly
completed and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations in
lieu thereof).
(iii) Such Selling Stockholder will not take, directly or
indirectly, any action designed to cause or result in, or that has constituted
or might reasonably be expected to constitute, the stabilization or manipulation
of the price of any securities of the Company.
5. Costs and Expenses.
------------------
The Company will pay all costs, expenses and fees incident to the
performance of the obligations of the Sellers under this Agreement, including,
without limiting the generality of the foregoing, the following: accounting fees
of the Company; the fees and disbursements of counsel for the Company and the
Selling Stockholders; the cost of printing and delivering to, or as requested
by, the Underwriters copies of the Registration Statement, Preliminary
Prospectuses, the Prospectus, this Agreement, the Underwriters' Selling
Memorandum, the Underwriters' Invitation Letter, the Listing Application, the
Blue Sky Survey and any supplements or amendments thereto; the filing fees of
the Commission; the filing fees and expenses (including legal fees and
disbursements) incident to securing any required review by the National
Association of Securities Dealers, Inc. (the "NASD") of the terms of the sale of
the Shares; the Listing Fee of the Nasdaq National Market; and the expenses,
including the fees and disbursements of counsel for the Underwriters, incurred
in connection with the qualification of the Shares under State securities or
Blue Sky laws. Any transfer taxes imposed on the sale of the Share to the
several Underwriters will be paid by the Sellers pro rata. The Company agrees to
pay all costs and expenses of the Underwriters, including the fees and
disbursements of counsel for the Underwriters, incident to the offer and sale of
directed shares of the Common Stock by
13
<PAGE>
the Underwriters to employees and persons having business relationships with the
Company and its Subsidiaries. The Sellers shall not, however, be required to pay
for any of the Underwriters expenses (other than those related to qualification
under NASD regulation and State securities or Blue Sky laws) except that, if
this Agreement shall not be consummated because the conditions in Section 6
hereof are not satisfied, or because this Agreement is terminated by the
Representatives pursuant to Section 11 hereof, or by reason of any failure,
refusal or inability on the part of the Company or the Selling Stockholders to
perform any undertaking or satisfy any condition of this Agreement or to comply
with any of the terms hereof on their part to be performed, unless such failure
to satisfy said condition or to comply with said terms be due to the default or
omission of any Underwriter, then the Company shall reimburse the several
Underwriters for reasonable out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred in connection with investigating,
marketing and proposing to market the Shares or in contemplation of performing
their obligations hereunder; but the Company and the Selling Stockholders shall
not in any event be liable to any of the several Underwriters for damages on
account of loss of anticipated profits from the sale by them of the Shares.
6. Conditions of Obligations of the Underwriters.
---------------------------------------------
The several obligations of the Underwriters to purchase the Firm
Shares on the Closing Date and the Option Shares, if any, on the Option Closing
Date are subject to the accuracy, as of the Closing Date or the Option Closing
Date, as the case may be, of the representations and warranties of the Company
and the Selling Stockholders contained herein, and to the performance by the
Company and the Selling Stockholders of their covenants and obligations
hereunder and to the following additional conditions:
(a) The Registration Statement and all post-effective amendments
thereto shall have become effective and any and all filings required by Rule 424
and Rule 430A of the Rules and Regulations shall have been made, and any request
of the Commission for additional information (to be included in the Registration
Statement or otherwise) shall have been disclosed to the Representatives and
complied with to their reasonable satisfaction. No stop order suspending the
effectiveness of the Registration Statement, as amended from time to time, shall
have been issued and no proceedings for that purpose shall have been taken or,
to the knowledge of the Company or the Selling Stockholders, shall be
contemplated by the Commission and no injunction, restraining order, or order of
any nature by a Federal or state court of competent jurisdiction shall have been
issued as of the Closing Date which would prevent the issuance of the Shares.
(b) The Representatives shall have received on the Closing Date or
the Option Closing Date, as the case may be, the opinion of Wilson Sonsini
Goodrich & Rosati, P.C., counsel for the Company and the Selling Stockholders,
dated the Closing Date or the Option Closing Date, as the case may be, addressed
to the Underwriters (and stating that it may be relied upon by counsel to the
Underwriters) to the effect that:
14
<PAGE>
(i) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own or lease its properties and
conduct its business as described in the Registration Statement; each of the
Subsidiaries has been duly organized and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation, with
corporate power and authority to own or lease its properties and conduct its
business as described in the Registration Statement; the Company and each of the
Subsidiaries are duly qualified to transact business in all jurisdictions in
which the conduct of their business requires such qualification, or in which the
failure to qualify would have a materially adverse effect upon the business of
the Company and the Subsidiaries taken as a whole; and the outstanding shares of
capital stock of each of the Subsidiaries have been duly authorized and validly
issued and are fully paid and non-assessable and are owned by the Company or a
Subsidiary; and, to the best of such counsel's knowledge, the outstanding shares
of capital stock of each of the Subsidiaries is owned free and clear of all
liens, encumbrances and equities and claims, and no options, warrants or other
rights to purchase, agreements or other obligations to issue or other rights to
convert any obligations into any shares of capital stock or of ownership
interests in the Subsidiaries are outstanding.
(ii) The Company has authorized and outstanding capital stock
as set forth under the caption "Capitalization" in the Prospectus; the
authorized shares of the Company's Common Stock have been duly authorized; the
outstanding shares of the Company's Common Stock, including the Shares to be
sold by the Selling Stockholders, have been duly authorized and validly issued
and are fully paid and non-assessable; all of the Shares conform to the
description thereof contained in the Prospectus; the certificates for the
Shares, assuming they are in the form filed with the Commission, are in due and
proper form; the shares of Common Stock, including the Option Shares, if any, to
be sold by the Company pursuant to this Agreement have been duly authorized and
will be validly issued, fully paid and non-assessable when issued and paid for
as contemplated by this Agreement; and no preemptive rights of stockholders
exist with respect to any of the Shares or the issue or sale thereof.
(iii) Except as described in or contemplated by the Prospectus,
to the knowledge of such counsel, there are no outstanding securities of the
Company convertible or exchangeable into or evidencing the right to purchase or
subscribe for any shares of capital stock of the Company and there are no
outstanding or authorized options, warrants or rights of any character
obligating the Company to issue any shares of its capital stock or any
securities convertible or exchangeable into or evidencing the right to purchase
or subscribe for any shares of such stock; and except as described in the
Prospectus, to the knowledge of such counsel, no holder of any securities of the
Company or any other person has the right, contractual or otherwise, which has
not been satisfied or effectively waived, to cause the Company to sell or
otherwise issue to them, or to permit them to underwrite the sale of, any of the
Shares or the right to have any Common Shares or other securities of the Company
including in the Registration Statement or the right, as a result of the filing
of the Registration Statement, to require registration under the Act of any
shares of Common Stock or other securities of the Company.
15
<PAGE>
(iv) The Registration Statement has become effective under
the Act and, to the best of the knowledge of such counsel, no stop order
proceedings with respect thereto have been instituted or are pending or
threatened under the Act.
(v) The Registration Statement, the Prospectus and each
amendment or supplement thereto comply as to form in all material respects with
the requirements of the Act and the applicable rules and regulations thereunder
(except that such counsel need express no opinion as to the financial statements
and related schedules therein).
(vi) The statements under the captions "Management--
Compensation Plans," "Certain Transactions," "Description of Capital Stock" and
"Shares Eligible for Future Sale" in the Prospectus, and in the Registration
Statement in Part II, Items 14 and 15, in each case insofar as such statements
constitute a summary of documents referred to therein or matters of law, fairly
present the information called for with respect to such documents and matters
and fairly summarize the matters referred to therein.
(vii) Such counsel does not know of any contracts or documents
required to be filed as exhibits to the Registration Statement or described in
the Registration Statement or the Prospectus which are not so filed or described
as required, and such contracts and documents as are summarized in the
Registration Statement or the Prospectus are fairly summarized in all material
respects.
(viii) Such counsel knows of no material legal or governmental
proceedings pending or threatened against the Company or any of the Subsidiaries
except as set forth in the Prospectus.
(ix) The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated do not and will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, the Charter or by-laws of the Company, or any
agreement or instrument known to such counsel to which the Company or any of the
Subsidiaries is a party or by which the Company or any of the Subsidiaries may
be bound.
(x) This Agreement has been duly authorized, executed and
delivered by the Company.
(xi) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body is necessary in connection with the execution and delivery of
this Agreement and the consummation of the transactions herein contemplated
(other than as may be required by the NASD or as required by State securities
and Blue Sky laws as to which such counsel need express no opinion) except such
as have been obtained or made, specifying the same.
(xii) The Company is not, and will not become, as a result of
the consummation of the transactions contemplated by this Agreement, and
application of the net
16
<PAGE>
proceeds therefrom as described in the Prospectus, required to register as an
investment company under the 1940 Act.
(xiii) This Agreement has been duly authorized, executed and
delivered on behalf of the Selling Stockholders.
(xiv) Each Selling Stockholder has full legal right, power and
authority, and any approval required by law (other than as required by State
securities and Blue Sky laws as to which such counsel need express no opinion),
to sell, assign, transfer and deliver the portion of the Shares to be sold by
such Selling Stockholders.
(xv) The Custodian Agreement and the Power of Attorney
executed and delivered by each Selling Stockholder is valid and binding.
(xvi) The Underwriters (assuming that they are bona fide
purchasers within the meaning of the Uniform Commercial Code) have acquired good
and marketable title to the Shares being sold by each Selling Stockholder on the
Closing Date, and the Option Closing Date, as the case may be, free and clear of
all liens, encumbrances, equities and claims.
In rendering such opinion Wilson Sonsini Goodrich & Rosati, P.C. may
rely as to matters governed by the laws of states other than California,
Delaware or Federal laws on local counsel in such jurisdictions, provided that
in each case Wilson Sonsini Goodrich & Rosati, P.C. shall state that they
believe that they and the Underwriters are justified in relying on such other
counsel. In addition to the matters set forth above, such opinion shall also
include a statement to the effect that nothing has come to the attention of such
counsel which leads them to believe that (i) the Registration Statement, at the
time it became effective under the Act (but after giving effect to any
modifications incorporated therein pursuant to Rule 430A under the Act) and as
of the Closing Date or the Option Closing Date, as the case may be, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and (ii) the Prospectus, or any supplement thereto, on the date it was filed
pursuant to the Rules and Regulations and as of the Closing Date or the Option
Closing Date, as the case may be, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements, in the light of the circumstances under which they are made, not
misleading (except that such counsel need express no view as to financial
statements, financial data, schedules and statistical information therein). With
respect to such statement, Wilson Sonsini Goodrich & Rosati, P.C. may state that
their belief is based upon the procedures set forth therein, but is without
independent check and verification.
Fenwick & West, LLP, patent counsel for the Company, shall have
furnished to the Representatives its written opinion, addressed to the
Underwriters and dated the First Delivery Date, in form and substance reasonably
satisfactory to the Representatives, to the effect that such counsel is familiar
with the technology used by the Company in its business and the manner of its
use thereof and has read the Registration Statement and the Prospectus,
including particularly the portions of the Registration Statement and the
Prospectus referring to patents and trade secrets, and:
17
<PAGE>
(i) to the best of such counsel's knowledge and except as set
forth in the Prospectus under the captions "Risk Factors-Dependence on
Proprietary Technology" and "Business--Intellectual Property," there are no
legal or governmental proceedings pending relating to patent rights or trade
secrets, of the Company, and to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
others;
(ii) except as set forth in the Prospectus, to the best of such
counsel's knowledge, the Company is not infringing or otherwise violating any
patents or trade secrets of others.
(d) The Representatives shall have received from Gunderson Dettmer
Stough Villeneuve Franklin & Hachigian, LLP, counsel for the Underwriters, an
opinion dated the Closing Date or the Option Closing Date, as the case may be,
substantially to the effect specified in subparagraphs (iv) and (v) of Paragraph
(b) of this Section 6, and that the Company is a duly organized and validly
existing corporation under the laws of the State of Delaware. In rendering such
opinion Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP may rely
as to all matters governed other than by the laws of the States of California
and Delaware or Federal laws on the opinion of counsel referred to in Paragraph
(b) of this Section 6. In addition to the matters set forth above, such opinion
shall also include a statement to the effect that nothing has come to the
attention of such counsel which leads them to believe that (i) the Registration
Statement, or any amendment thereto, as of the time it became effective under
the Act (but after giving effect to any modifications incorporated therein
pursuant to Rule 430A under the Act) as of the Closing Date or the Option
Closing Date, as the case may be, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (ii) the
Prospectus, or any supplement thereto, on the date it was filed pursuant to the
Rules and Regulations and as of the Closing Date or the Option Closing Date, as
the case may be, contained an untrue statement of a material fact or omitted to
state a material fact, necessary in order to make the statements, in the light
of the circumstances under which they are made, not misleading (except that such
counsel need express no view as to financial statements, financial data,
schedules and statistical information therein). With respect to such statement,
Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP may state that
their belief is based upon the procedures set forth therein, but is without
independent check and verification.
(e) The Representatives shall have received at or prior to the
Closing Date from Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP
a memorandum or summary, in form and substance satisfactory to the
Representatives, with respect to the qualification for offering and sale by the
Underwriters of the Shares under the State securities or Blue Sky laws of such
jurisdictions as the Representatives may reasonably have designated to the
Company.
(f) The Representatives shall have received, on each of the dates
hereon, the Closing Date and the Option Closing Date, as the case may be, a
letter dated the date hereof, the Closing Date or the Option Closing Date, as
the case may be, in form and substance satisfactory
18
<PAGE>
to you, of Coopers & Lybrand, L.L.P. confirming that they are independent public
accountants within the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating that in their opinion the financial
statements and schedules examined by them and included in the Registration
Statement comply in form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and Regulations; and
containing such other statements and information as is ordinarily included in
accountants' "comfort letters" to Underwriters with respect to the financial
statements and certain financial and statistical information contained in the
Registration Statement and Prospectus.
(g) The Representatives shall have received on the Closing Date or
the Option Closing Date, as the case may be, a certificate or certificates of
the Chief Executive Officer and the Chief Financial Officer of the Company to
the effect that, as of the Closing Date or the Option Closing Date, as the case
may be, each of them severally represents as follows:
(i) The Registration Statement has become effective under the
Act and no stop order suspending the effectiveness of the Registration Statement
has been issued, and no proceedings for such purpose have been taken or are, to
his knowledge, contemplated by the Commission;
(ii) The representations and warranties of the Company
contained in Section 1 hereof are true and correct as of the Closing Date or the
Option Closing Date, as the case may be;
(iii) All filings required to have been made pursuant to Rules
424 or 430A under the Act have been made;
(iv) He or she has carefully examined the Registration
Statement and the Prospectus and, in his or her opinion, as of the effective
date of the Registration Statement, the statements contained in the Registration
Statement were true and correct, and such Registration Statement and Prospectus
did not omit to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading, and since the effective
date of the Registration Statement, no event has occurred which should have been
set forth in a supplement to or an amendment of the Prospectus which has not
been so set forth in such supplement or amendment; and
(v) Since the respective dates as of which information is
given in the Registration Statement and Prospectus, there has not been any
material adverse change or any development involving a prospective material
adverse change in or affecting the condition, financial or otherwise, of the
Company and its Subsidiaries taken as a whole or the earnings, business,
management, properties, assets, rights, operations, condition (financial or
otherwise) or prospects of the Company and the Subsidiaries taken as a whole,
whether or not arising in the ordinary course of business.
(h) The Company and the Selling Stockholders shall have furnished to
the Representatives such further certificates and documents confirming the
representations and
19
<PAGE>
warranties, covenants and conditions contained herein and related matters as the
Representatives may reasonably have requested.
(i) The Firm Shares and Option Shares, if any, have been approved for
designation upon notice of issuance on the Nasdaq National Market.
(j) The Lockup Agreements described in Section 4(a)(x) are in full
force and effect.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects satisfactory to the Representatives and to Gunderson Dettmer
Stough Villeneuve Franklin & Hachigian, LLP, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the Underwriters hereunder may be terminated by
the Representatives by notifying the Company of such termination in writing or
by telegram at or prior to the Closing Date or the Option Closing Date, as the
case may be.
In such event, the Selling Stockholders, the Company and the
Underwriters shall not be under any obligation to each other (except to the
extent provided in Sections 5 and 8 hereof).
7. Conditions of the Obligations of the Sellers.
--------------------------------------------
(a) The obligations of the Sellers to sell and deliver the portion of
the Shares required to be delivered as and when specified in this Agreement are
subject to the conditions that at the Closing Date or the Option Closing Date,
as the case may be, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and in effect or proceedings
therefor initiated or threatened.
8. Indemnification.
---------------
(a) The Company and the Selling Stockholders, jointly and severally,
agree to indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of the Act, against any losses,
claims, damages or liabilities to which such Underwriter or any such controlling
person may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
or (ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and will reimburse each Underwriter and each such controlling person
upon demand for any legal or other expenses reasonably incurred by such
Underwriter or such controlling person in connection with investigating or
defending any such
20
<PAGE>
loss, claim, damage or liability, action or proceeding or in responding to a
subpoena or governmental inquiry related to the offering of the Shares, whether
or not such Underwriter or controlling person is a party to any action or
proceeding; provided, however, that the Company and the Selling Stockholders
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement, or omission or alleged omission made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Representatives
specifically for use in the preparation thereof. In no event, however, shall the
liability of any Selling Stockholder for indemnification under this Section 8(a)
exceed the proceeds received by such Selling Stockholder from the Underwriters
in the offering. This indemnity agreement will be in addition to any liability
which the Company or the Selling Stockholders may otherwise have.
(b) Each Underwriter severally and not jointly will indemnify and
hold harmless the Company, each of its directors, each of its officers who have
signed the Registration Statement, the Selling Stockholders, and each person, if
any, who controls the Company or the Selling Stockholders within the meaning of
the Act, against any losses, claims, damages or liabilities to which the Company
or any such director, officer, Selling Stockholder or controlling person may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto, or (ii) the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made; and will reimburse any
legal or other expenses reasonably incurred by the Company or any such director,
officer, Selling Stockholder or controlling person in connection with
investigating or defending any such loss, claim, damage, liability, action or
proceeding; provided, however, that each Underwriter will be liable in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission has been made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Representatives
specifically for use in the preparation thereof. This indemnity agreement will
be in addition to any liability which such Underwriter may otherwise have.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to this Section 8, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing. No indemnification provided for in Section
8(a) or (b) shall be available to any party who shall fail to give notice as
provided in this Section 8(c) if the party to whom notice was not given was
unaware of the proceeding to which such notice would have related and was
materially prejudiced by the failure to give such notice, but the failure to
give such notice shall not relieve the indemnifying party or parties from any
liability which it or they may have to the indemnified party for contribution or
21
<PAGE>
otherwise than on account of the provisions of Section 8(a) or (b). In case any
such proceeding shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party and
shall pay as incurred the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel at its own expense. Notwithstanding the foregoing, the
indemnifying party shall pay as incurred (or within 30 days of presentation) the
fees and expenses of the counsel retained by the indemnified party in the event
(i) the indemnifying party and the indemnified party shall have mutually agreed
to the retention of such counsel, (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them or
(iii) the indemnifying party shall have failed to assume the defense and employ
counsel acceptable to the indemnified party within a reasonable period of time
after notice of commencement of the action. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by you in the case of parties indemnified
pursuant to Section 8(a) and by the Company and the Selling Stockholders in the
case of parties indemnified pursuant to Section 8(b). The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent but if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement or
judgment. In addition, the indemnifying party will not, without the prior
written consent of the indemnified party, settle or compromise or consent to the
entry of any judgment in any pending or threatened claim, action or proceeding
of which indemnification may be sought hereunder (whether or not any indemnified
party is an actual or potential party to such claim action or proceeding) unless
such settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action or
proceeding.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriters on the other from the
offering of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company and the Selling Stockholders on the
one hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, (or
actions or proceedings in respect thereof), as well as any other relevant
equitable considerations.
22
<PAGE>
The relative benefits received by the Company and the Selling Stockholders on
the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Selling Stockholders bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Selling Stockholders on the one hand or the Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company, the Selling Stockholders and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this Section
8(d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 8(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) referred to above in this Section 8(d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), (i) no Underwriter shall
be required to contribute any amount in excess of the underwriting discounts and
commissions applicable to the Shares purchased by such Underwriter, and (ii) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation, and (iii) no Selling Stockholder
shall be required to contribute any amount in excess of the lesser of (A) that
proportion of the total of such losses, claims, damages or liabilities
indemnified or contributed against equal to the proportion of the total Shares
sold hereunder which is being sold by such Selling Stockholder, or (B) the
proceeds received by such Selling Stockholder from the Underwriters in the
offering. The Underwriters' obligations in this Section 8(d) to contribute are
several in proportion to their respective underwriting obligations and not
joint.
(e) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any supplement or amendment thereto,
each party against whom contribution may be sought under this Section 8 hereby
consents to the jurisdiction of any court having jurisdiction over any other
contributing party, agrees that process issuing from such court may be served
upon him or it by any other contributing party and consents to the service of
such process and agrees that any other contributing party may join him or it as
an additional defendant in any such proceeding in which such other contributing
party is a party.
(f) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 8 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of
23
<PAGE>
any Underwriter or any person controlling any Underwriter, the Company, its
directors or officers or any persons controlling the Company, (ii) acceptance of
any Shares and payment therefor hereunder, and (iii) any termination of this
Agreement. A successor to any Underwriter, or to the Company, its directors or
officers, or any person controlling the Company, shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreements contained
in this Section 8.
9. Default By Underwriters.
-----------------------
If on the Closing Date or the Option Closing Date, as the case may be,
any Underwriter shall fail to purchase and pay for the portion of the Shares
which such Underwriter has agreed to purchase and pay for on such date
(otherwise than by reason of any default on the part of the Company or a Selling
Stockholder), you, as Representatives of the Underwriters, shall use your
reasonable efforts to procure within 36 hours thereafter one or more of the
other Underwriters, or any others, to purchase from the Company and the Selling
Stockholders such amounts as may be agreed upon and upon the terms set forth
herein, the Firm Shares or Option Shares, as the case may be, which the
defaulting Underwriter or Underwriters failed to purchase. If during such 36
hours you, as such Representatives, shall not have procured such other
Underwriters, or any others, to purchase the Firm Shares or Option Shares, as
the case may be, agreed to be purchased by the defaulting Underwriter or
Underwriters, then (a) if the aggregate number of shares with respect to which
such default shall occur does not exceed 10% of the Firm Shares or Option
Shares, as the case may be, covered hereby, the other Underwriters shall be
obligated, severally, in proportion to the respective numbers of Firm Shares or
Option Shares, as the case may be, which they are obligated to purchase
hereunder, to purchase the Firm Shares or Option Shares, as the case may be,
which such defaulting Underwriter or Underwriters failed to purchase, or (b) if
the aggregate number of shares of Firm Shares or Option Shares, as the case may
be, with respect to which such default shall occur exceeds 10% of the Firm
Shares or Option Shares, as the case may be, covered hereby, the Company and the
Selling Stockholders or you as the Representatives of the Underwriters will have
the right, by written notice given within the next 36-hour period to the parties
to this Agreement, to terminate this Agreement without liability on the part of
the non-defaulting Underwriters or of the Company or of the Selling Stockholders
except to the extent provided in Section 8 hereof. In the event of a default by
any Underwriter or Underwriters, as set forth in this Section 9, the Closing
Date or Option Closing date, as the case may be, may be postponed for such
period, not exceeding seven days, as you, as Representatives, may determine in
order that the required changes in the Registration Statement or in the
Prospectus or in any other documents or arrangements may be effected. The term
"Underwriter" includes any person substituted for a defaulting Underwriter. Any
action taken under this Section 9 shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
10 Notices.
-------
All communications hereunder shall be in writing and, except as
otherwise provided herein, will be mailed, delivered, telecopied or telegraphed
and confirmed as follows: if to the Underwriters, to Alex. Brown & Sons
Incorporated, 135 East Baltimore Street,
24
<PAGE>
Baltimore, Maryland 21202, Attention: ________________, with a copy to Alex.
Brown & Sons Incorporated, 135 East Baltimore Street, Baltimore, Maryland 21202,
Attention: General Counsel; if to the Company to:
Splash Technology Holdings, Inc.
555 Del Rey Avenue
Sunnyvale, California 94086
Attention: __________________
if to the Selling Stockholder, to:
____________________________
____________________________
____________________________
____________________________
11. Termination.
-----------
This Agreement may be terminated by you by notice to the Sellers as
follows:
(a) at any time prior to the earlier of (i) the time the Shares are
released by you for sale by notice to the Underwriters, or (ii) 11:30 a.m. on
the first business day following the date of this Agreement;
(b) at any time prior to the Closing Date if any of the following has
occurred: (i) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, any material adverse change or
any development involving a prospective material adverse change in or affecting
the condition, financial or otherwise, of the Company and its Subsidiaries taken
as a whole or the earnings, business, management, properties, assets, rights,
operations, condition (financial or otherwise) or prospects of the Company and
its Subsidiaries taken as a whole, whether or not arising in the ordinary course
of business, (ii) any outbreak or escalation of hostilities or declaration of
war or national emergency or other national or international calamity or crisis
or change in economic or political conditions if the effect of such outbreak,
escalation, declaration, emergency, calamity, crisis or change on the financial
markets of the United States would, in your reasonable judgment, make it
impracticable to market the Shares or to enforce contracts for the sale of the
Shares, or (iii) suspension of trading in securities generally on the New York
Stock Exchange or the American Stock Exchange or limitation on prices (other
than limitations on hours or numbers of days of trading) for securities on
either such Exchange, (iv) the enactment, publication, decree or other
promulgation of any statute, regulation, rule or order of any court or other
governmental authority which in your opinion materially and adversely affects or
may materially and adversely affect the business or operations of the Company,
(v) declaration of a banking moratorium by United States or New York State
authorities, (vi) any downgrading in the rating of the Company's debt securities
by any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Exchange Act); (vii) the suspension of trading
of the Company's common stock by the
25
<PAGE>
Commission on the Nasdaq National Market or (viii) the taking of any action by
any governmental body or agency in respect of its monetary or fiscal affairs
which in your reasonable opinion has a material adverse effect on the securities
markets in the United States; or
(c) as provided in Sections 6 and 9 of this Agreement.
12. Successors.
----------
This Agreement has been and is made solely for the benefit of the
Underwriters, the Company and the Selling Stockholders and their respective
successors, executors, administrators, heirs and assigns, and the officers,
directors and controlling persons referred to herein, and no other person will
have any right or obligation hereunder. No purchaser of any of the Shares from
any Underwriter shall be deemed a successor or assign merely because of such
purchase.
13. Information Provided By Underwriters.
------------------------------------
The Company, the Selling Stockholders and the Underwriters acknowledge
and agree that the only information furnished or to be furnished by any
Underwriter to the Company for inclusion in any Prospectus or the Registration
Statement consists of the information set forth in the last paragraph on the
front cover page (insofar as such information relates to the Underwriters),
legends required by Item 502(d) of Regulation S-K under the Act and the
information under the caption "Underwriting" in the Prospectus.
14. Miscellaneous
-------------
The reimbursement, indemnification and contribution agreements
contained in this Agreement and the representations, warranties and covenants in
this Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of any
Underwriter or controlling person thereof, or by or on behalf of the Company or
its directors or officers and (c) delivery of and payment for the Shares under
this Agreement.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Maryland.
If the foregoing letter is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Selling Stockholders, the
Company and the several Underwriters in accordance with its terms.
26
<PAGE>
Any person executing and delivering this Agreement as Attorney-in-Fact
for a Selling Stockholder represents by so doing that he has been duly appointed
as Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing
and binding Power of Attorney which authorizes such Attorney-in-Fact to take
such action.
Very truly yours,
SPLASH TECHNOLOGY HOLDINGS, INC.
By
-------------------------------
Kevin Macgillivray,
President and Chief Executive Officer
Selling Stockholders listed on Schedule II
By
-------------------------------
, Attorney-in-Fact]
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above written.
ALEX. BROWN & SONS INCORPORATED
MONTGOMERY SECURITIES
As Representatives of the several
Underwriters listed on Schedule I
By: Alex. Brown & Sons Incorporated
By: _______________________________
, Authorized Officer
27
<PAGE>
SCHEDULE I
SCHEDULE OF UNDERWRITERS
<TABLE>
<CAPTION>
Underwriter Number of Firm Shares to be Purchased
----------- -------------------------------------
<S> <C>
Alex. Brown & Sons Incorporated
Montgomery Securities
_____________
Total _____________
</TABLE>
28
<PAGE>
SCHEDULE II
SCHEDULE OF SELLING STOCKHOLDERS
<TABLE>
<CAPTION>
Selling Stockholder Number of Firm Shares to be Sold
- ------------------- --------------------------------
<S> <C>
_____________
Total _____________
</TABLE>
29
<PAGE>
SCHEDULE III
SCHEDULE OF OPTION SHARES
<TABLE>
<CAPTION>
Maximum Number of Percentage of Total
Name of Seller Option Shares to be Sold Number of Option Shares
- -------------- ------------------------ ------------------------
<S> <C> <C>
___________
Total ___________ 100%
---
</TABLE>
30
<PAGE>
EXHIBIT 3.2
AMENDED AND RESTATED
--------------------
CERTIFICATE OF INCORPORATION
OF
SPLASH TECHNOLOGY HOLDINGS, INC.
A DELAWARE CORPORATION
----------------------
Splash Technology Holdings, Inc., a corporation organized and existing
under the laws of the State of Delaware, does hereby certify:
1. The name of the corporation is Splash Technology Holdings, Inc., (the
"Corporation"). The original Certificate of Incorporation of the Corporation
was filed with the Secretary of State of the State of Delaware on December 20,
1995.
2. The restatement herein set forth has been duly approved by the Board
of Directors of the Corporation and by the stockholders of the Corporation
pursuant to Section 242 of the General Corporation Law of the State of Delaware
("Delaware Law").
3. The restatement herein set forth has been duly adopted pursuant to
Section 245 of the Delaware Law. This Amended and Restated Certificate of
Incorporation restates and integrates and amends the provisions of the
Corporation's Certificate of Incorporation.
4. The text of the Certificate of Incorporation is hereby amended and
restated to read in its entirety as follows:
"ARTICLE ONE
-----------
The name of this corporation is Splash Technology Holdings, Inc. (the
"Corporation").
ARTICLE TWO
-----------
The address of the Corporation's registered office in the State of Delaware
is 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
<PAGE>
ARTICLE THREE
-------------
The Corporation shall have perpetual existence. The nature of the business
or purposes to be conducted or promoted by the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
ARTICLE FOUR
------------
This Corporation is authorized to issue two classes of shares to be
designated respectively Preferred Stock and Common Stock. The total number of
shares of Common Stock this Corporation shall have the authority to issue is
50,000,000 shares, and shall have a par value of $0.001 per share ("COMMON"),
and the total number of shares of Preferred Stock this corporation shall have
authority to issue is 5,000,000, and shall have a par value of $0.001 per share
("PREFERRED"). Upon the filing of this Amended and Restated Certificate of
Incorporation, each _____ issued and outstanding shares of Common Stock shall be
automatically combined and reconstituted as _____ shares of Common Stock. No
fractional shares shall be issued. In lieu thereof, any fractional shares
resulting from the stock split (after aggregating all fractional shares to which
any one stockholder shall be entitled as a result of the split) shall be rounded
to the nearest whole share. Each share of Common Stock shall continue to have a
par value of $0.001 following such stock split. Of the authorized Preferred, a
total of 15,246 shares shall be designated Series A Redeemable Preferred Stock
("SERIES A PREFERRED"), and a total of 4,282 shares shall be designated Series B
Redeemable and Convertible Preferred Stock ("SERIES B PREFERRED"), and the
remaining shares shall be undesignated as to series.
Any Preferred Stock not previously designated as to series may be issued
from time to time in one or more series pursuant to a resolution or resolutions
providing for such issue duly adopted by the Board of Directors (authority to do
so being hereby expressly vested in the Board), and such resolution or
resolutions shall also set forth the voting powers, full or limited or none, of
each such series of Preferred Stock and shall fix the designations, preferences
and relative, participating, optional or other special rights and
qualifications, limitations or restrictions of each such series of Preferred
Stock. The Board of Directors is authorized to alter the designation, rights,
preferences, privileges and restrictions granted to or imposed upon any wholly
unissued series of Preferred Stock and, within the limits and restrictions
stated in any resolution or resolutions of the Board of Directors originally
fixing the number of shares constituting any series of Preferred Stock, to
increase or decrease (but not below the number of shares of any such series then
outstanding) the number of shares of any such series subsequent to the issue of
shares of that series.
Each share of Preferred Stock issued by the Corporation, if reacquired by
the Corporation (whether by redemption, repurchase, conversion to Common Stock
or other means), shall upon such reacquisition resume the status of authorized
and unissued shares of Preferred Stock, undesignated as to series and available
for designation and issuance by the Corporation in accordance with the
immediately preceding paragraph.
-2-
<PAGE>
The Corporation shall from time to time in accordance with the laws of the
State of Delaware increase the authorized amount of its Common Stock if at any
time the number of shares of Common Stock remaining unissued and available for
issuance shall not be sufficient to permit conversion of the Preferred Stock.
The relative rights, preferences, privileges and restrictions granted to or
imposed on the respective classes of the shares of capital stock or the holders
thereof are as follows:
Section 1. Liquidation Rights.
---------- ------------------
(a) Liquidation Preferences. In the event of any voluntary or involuntary
-----------------------
liquidation, dissolution or winding up of the affairs of the Corporation (or the
deemed occurrence of such event pursuant to subsection (c) of this Section 1),
the holders of each share of Preferred shall be entitled to receive, prior and
in preference to any distribution of any of the assets or property of the
Corporation to the holders of the Common by reason of their ownership thereof,
an amount equal to One Thousand Dollars ($1,000.00) per share for each share of
Preferred then held by them and, in addition, an amount equal to any dividends
previously accrued or declared but unpaid on such share of Preferred.
All of the preferential amount to be paid to the holders of the Series A
Preferred under this subsection 1(a) shall be paid or set apart for payment
before the payment or setting apart for payment of any amount for, or the
distribution of any assets of the Corporation to, the holders of the Series B
Preferred or the Common in connection with any such liquidation, dissolution or
winding up. All of the preferential amount to be paid to the holders of the
Series B Preferred under this subsection 1(a) shall be paid or set apart for
payment before the payment or setting apart for payment of any amount for, or
the distribution of any assets of the Corporation to, the holders of the Common
in connection with any such liquidation, dissolution or winding up. After the
payment or the setting apart for pay ment to the holders of the Series A
Preferred and Series B Preferred and of the preferential amounts so payable to
them, the remaining assets of the Corporation available for distribution shall
be distrib uted in accordance with the provisions of subsection (b) of this
Section 1.
If the assets or property to be distributed are insufficient to permit the
payment to holders of the Series A Preferred of their full preferential amount,
the entire assets and property legally available for distribution shall be
distributed ratably among the holders of Series A Preferred in proportion to the
full preferential amount each such holder is otherwise entitled to receive. If
assets and property are remaining and legally available for distribution to the
Series B Preferred after distri bution to the Series A Preferred but are
insufficient to permit the payment to the holders of the Series B Preferred of
their full preferential amount, the entire assets and property legally available
for distribution to the holders of Series B Preferred shall be distributed
ratably among the holders of the Series B Preferred in proportion to the full
preferential amount each such holder is otherwise entitled to receive.
(b) Distributions after Payment of Liquidation Preference. After the
-----------------------------------------------------
payment or setting apart for payment to the holders of Preferred of the
preferential amounts set forth in subsection (a)
-3-
<PAGE>
above, the holders of Common shall be entitled to receive all remaining assets
of the Corporation available for distribution.
(c) Effect of Merger. For purposes of this Section 1, a merger or
----------------
consolidation of the Corporation with or into any other Corporation or
Corporations (except where a majority of the out standing equity securities of
the surviving Corporation immediately after the merger or consolidation is held
by persons who were stockholders of this Corporation immediately prior to the
merger or consolidation), or a sale or other transfer of all or substantially
all of the assets of the Corporation (or any series of related transactions
resulting in the sale or other transfer of all or substantially all of the
assets of the Corporation), shall be treated as a liquidation, dissolution or
winding up.
(d) Consent. Each holder of an outstanding share of Preferred shall be
-------
deemed to have consented, for purposes of Sections 151 and 160 of the Delaware
General Corporation Law, to distributions made by the Corporation in connection
with the repurchase of shares of Common issued to or held by employees or
consultants upon termination of their employment or services pursuant to
agreements between the Corporation and such persons providing for the
Corporation's right of said repurchase.
Section Conversion Rights. The holders of the Series B Preferred shall
-------- -----------------
have conversion rights as follows (the "CONVERSION RIGHTS"):
(a) Right to Convert. Each share of Series B Preferred shall be
----------------
convertible, without the payment of any additional consideration by the holder
thereof and at the option of the holder thereof, at any time after the date of
issuance of such share, at the office of the Corporation or any transfer agent
for the Series B Preferred, into such number of fully paid and nonassessable
shares of Common equal to the "CONVERSION AMOUNT," which conversion amount shall
initially be [116.176]/1/. Such initial Conversion Amount shall be subject to
adjustment, in order to adjust the number of shares of Common into which each
series of the Series B Preferred is convertible, as hereinafter provided.
(b) Automatic Conversion. Each share of Series B Preferred shall
--------------------
automatically be converted into the number shares of Common as determined by its
then effective Conversion Amount upon (A) the closing ("CLOSING") of a firm
commitment underwritten public offering pursuant to an effective registration
statement under the Securities Act of 1933, as amended, covering the offer and
sale of Common for the account of the Corporation to the public at an offering
price to the public of at least [Twelve Dollars ($12.00)]/2/ per share (as
adjusted for stock splits, stock dividends, reclassifications, and like events)
and in which the aggregate gross proceeds received by the Corporation (net of
underwriting discounts) equal or exceed $35,000,000 (a "QUALIFIED OFFERING").
In the event of a Qualified Offering, the person(s) entitled to receive the
Common issuable upon such
___________________________
/1/ Adjust for stock split.
/2/ Adjust for stock split.
-4-
<PAGE>
conversion of the Series B Preferred shall not be deemed to have converted that
Series B Preferred until immediately prior to the Closing, (B) the closing of
merger or consolidation by the Corporation with or into any other corporation in
which the holders of all series of the Corporation's capital stock receive an
aggregate of consideration of at least $50,000,000, or (C) the closing of the
sale or transfer of all or substantially all of the assets of the Corporation in
a single transaction or a series of related transactions in which the
Corporation receives aggregate proceeds of at least $50,000,000 (the closing of
such a merger or consolidation or of such a sale or transfer, a "QUALIFIED
MERGER OR SALE").
(c) Mechanics of Conversion. No fractional shares of Common shall be
-----------------------
issued upon conversion of the Series B Preferred. In lieu of any fractional
shares to which the holder would otherwise be entitled, the Corporation shall
pay cash equal to such fraction multiplied by the result obtained by dividing
(i) One Thousand Dollars ($1,000) by (ii) the then effective Conversion Amount.
Before any holder of Series B Preferred shall be entitled to convert the same
into full shares of Common pursuant to Section 2(a) hereof, he shall surrender
the certificate or certificates therefor, duly endorsed, at the office of the
Corporation or of any transfer agent for the Series B Preferred, and shall give
written notice to the Corporation at such office that he elects to convert the
same and shall state therein his name or the name or names of his nominees in
which he wishes the certificate or certificates for shares of Common to be
issued. The Corporation shall, as soon as practicable thereafter, issue and
deliver at such office to such holder of Series B Preferred, or to his nominee
or nominees, a certificate or certificates for the number of shares of Common to
which he shall be entitled as aforesaid, together with cash in lieu of any
fraction of a share. Such conversion shall be deemed to have been made
immediately prior to the close of business on the date of such surrender of the
shares of Series B Preferred to be converted, and the person or persons entitled
to receive the shares of Common issuable upon conversion shall be treated for
all purposes as the record holder or holders of such shares of Common on such
date.
(d) Adjustments to Conversion Amount.
--------------------------------
(i) Adjustments for Subdivisions, Combinations, Consolidations or
---------------------------------------------------------------
Stock Dividends. In the event the outstanding shares of Common shall be
- ---------------
subdivision (by stock split or otherwise), into a greater number of shares of
Common, or shares of Common shall have been issued by stock dividend, the
Conversion Amount then in effect shall, concurrently with the effectiveness of
such subdivision or stock dividend, be proportionately increased. In the event
the outstanding shares of Common shall be combined or consolidated by
reclassification or otherwise, into a lesser number of shares of Common, the
Conversion Amount then in effect shall, concurrently with the effectiveness of
such combination or consolidation, be proportionately decreased.
(ii) Adjustments for Other Distributions. In the event the
-----------------------------------
Corporation any time or from time to time makes, or fixes a record date for the
determination of holders of Common entitled to receive any distribution payable
in securities of the Corporation other than shares of Common, then and in each
such event provision shall be made so that the holders of Series B Preferred
shall receive upon conversion thereof, in addition to the number of shares of
Common
-5-
<PAGE>
receivable thereupon, the amount of securities of the Corporation which they
would have received had their Series B Preferred been converted into Common on
the date of such event and had they thereafter, during the period from the date
of such event to and including the date of conversion, retained such securities
receivable by them as aforesaid during such period, subject to all other
adjustments called for during such period under this Section 2 with respect to
the rights of the holders of the Series B Preferred. In the event the
Corporation shall declare a distribution payable in securities of other persons,
evidences of indebtedness issued by the Corporation or other persons, assets
(excluding cash dividends), or options or rights, then, in each such case for
the purpose of this subsection 2(d), the holders of the Series B Preferred shall
be entitled to a proportionate share of any such distribution as though they
were the holders of the number of shares of Common of the Corporation into which
their shares of Series B Preferred are convertible as of the record date fixed
for the determination of the holders of Common of the Corporation entitled to
receive such distribution.
(iii) Adjustments for Reclassification, Exchange and Substitution.
-----------------------------------------------------------
If the Common issuable upon conversion of the Series B Preferred shall be
changed into the same or a different number of shares of any other class or
classes of stock, whether by capital reorganization, reclassification or
otherwise (other than a subdivision or combination of shares provided for
above), the Conversion Amount then in effect shall, concurrently with the
effectiveness of such reorganization or reclassification, be proportionately
adjusted such that the Series B Preferred shall be convertible into, in lieu of
the number of shares of Common which the holders would otherwise have been
entitled to receive, a number of shares of such other class or classes of stock
equivalent to the number of shares of Common that would have been subject to
receipt by the holders upon conversion of the Series B Preferred immediately
before that change.
(iv) Reorganization, Mergers, Consolidations, or Sales of Assets.
-----------------------------------------------------------
Subject to Section 1(c) hereof, if at any time or from time to time there shall
be a capital reorganization of the Common (other than a subdivision,
combination, reclassification, or exchange of shares provided for elsewhere in
this Section 2) or a merger or consolidation of this Corporation with or into
another Corporation, or the sale of all or substantially all of this
Corporation's properties and assets to any other person, then, as a part of such
reorganization, merger, consolidation, or sale, provision shall be made so that
the holders of the Series B Preferred shall thereafter be entitled to receive
upon conversion of the Series B Preferred, the number of shares of stock or
other securities or property of this Corporation, or of the successor
Corporation resulting from such merger or consolidation or sale, to which a
holder of Common deliverable upon conversion would have been entitled on such
capital reorganization, merger, consolidation, or sale. In any such case,
appropriate adjustment shall be made in the application of the provisions of
Section 2 with respect to the rights of the holders of the Series B Preferred
after the reorganization, merger, consolidation, or sale to the end that the
provisions of this Section 2 (including adjustment of the Conversion Amount then
in effect) shall be applicable after that event as nearly equivalent as may be
practicable.
(e) No Impairment. The Corporation will not, by amendment of its
-------------
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution,
-6-
<PAGE>
issue or sale of securities or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms to be observed or
performed hereunder by the Corporation but will at all times in good faith
assist in the carrying out of all the provisions of this Section 2 and in the
taking of all such action as may be necessary or appropriate in order to protect
the Conversion Rights of the holders of the Series B Preferred against
impairment.
(f) Certificate as to Adjustments. Upon the occurrence of each adjustment
-----------------------------
or readjustment of the Conversion Amount pursuant to this Section 2, the
Corporation at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder of
Series B Preferred a certificate certified by the Corporation's chief financial
officer setting forth such adjustment or readjustment and showing in detail the
facts upon which such adjustment or readjustment is based. The Corporation
shall, upon the written request at any time of any holder of Series B Preferred,
furnish or cause to be furnished to such holder a like certificate setting forth
(i) such adjustments and readjustments and (ii) the Conversion Amount in effect
at that time.
(g) Notices of Record Date. In the event of any taking by the Corporation
----------------------
of a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend (other
than a cash dividend which is the same as cash dividends paid in previous
quarters) or other distribution, the Corporation shall mail to each holder of
Series B Preferred at least ten (10) days prior to the date specified therein, a
notice specifying the date on which any such record is to be taken for the
purpose of such dividend or distribution.
Section 3. Redemption.
---------- ----------
(a) Optional Redemption. At its option and to the extent permitted by
-------------------
law, the Corporation may redeem all or any, allocated ratably among the holders
thereof, outstanding shares of Series A Preferred. At its option and to the
extent permitted by law, the Corporation may redeem all or any, allocated
ratably among the holders thereof, outstanding shares of Series B Preferred, but
only if no shares of Series A Preferred are then outstanding.
(b) Mandatory Redemption.
--------------------
(i) On Liquidity. Upon (A) the Closing of a Qualified Offering, or
------------
(B) a Qualified Merger Or Sale, the Corporation shall redeem all of the shares
of Series A Preferred then outstanding.
(ii) On Sixth and Seventh Anniversaries - Series B Preferred. To the
-------------------------------------------------------
extent permitted by law and only if no shares of Series A Preferred are
outstanding, the Corporation shall redeem, ratably among the holders thereof,
(A) one-half of the outstanding shares of Series B Preferred on the sixth
anniversary of the original issue thereof and (B) the remaining outstanding
shares of the Series B Preferred on the seventh anniversary of
-7-
<PAGE>
the original date of issue thereof. In the event that such redemption of the
Series B Preferred is not permitted in whole or in part and only if no shares of
Series A Preferred are outstanding, the Corporation shall, at the sixth
anniversary of the original date of issue or the seventh anniversary of the
original date of issue (as appropriate), redeem, allocated ratably among the
holders thereof, as many shares of Series B Preferred as permitted by law (up to
one-half of the outstanding shares of Series B Preferred Stock on the sixth
anniversary of the original date of issue thereof). In such event, the shares of
Series B Preferred not redeemed shall remain outstanding and be entitled to all
the rights and preferences provided herein. At any time thereafter when
additional funds of the Corporation are legally available for the redemption of
shares of Series B Preferred and only if no shares of Series A Preferred are
outstanding, such funds will immediately be used to redeem the balance of the
shares which the Corporation has become obligated to redeem but which it has not
redeemed.
(c) Redemption Price. The redemption price for each share of Preferred
----------------
redeemed pursuant to this Section 3 shall be equal to $1,000 per share of
outstanding Preferred plus all accrued and unpaid dividends on such share,
calculated in accordance with Section 5 below, whether or not earned or
declared, and any otherwise declared and unpaid dividends on such share, up to
and including the date fixed for redemption (the "REDEMPTION PRICE").
(d) Pro Rata Basis. The redemption or repurchase of all or any portion or
--------------
number of shares of the Preferred Stock, whether pursuant to the provisions of
this Section 5 or otherwise, and all dividends or other distributions thereon or
with respect thereto shall be on a pro rata basis in right of payment and in all
other respects for each and every share of such the Preferred Stock (except as
otherwise provided in Section 5(a)), without regard to the identity of the
holder, except as otherwise set forth above.
(e) Redemption Notice. At least 30 days prior to the date(s) fixed for
-----------------
redemption (each, a "REDEMPTION DATE"), written notice (the "REDEMPTION NOTICE")
shall be mailed, postage prepaid, by the Corporation to each holder of record of
each series of Preferred, at its address shown on the records of the
Corporation. The Redemption Notice shall contain the following information:
(i) The series of Preferred to be redeemed; the number of shares of
the series of Preferred held by the holder which shall be redeemed by the
Corporation, and the total number of shares of such series of Preferred held by
all holders to be so redeemed,
(ii) The Redemption Date and the Redemption Price, and
(iii) That the holder is to surrender to the Corporation at the place
designated in such notice, the holder's certificate or certificates representing
the shares of the series Preferred to be redeemed.
(f) Payment and Surrender of Certificates. Each holder of shares of
-------------------------------------
Preferred Stock to be redeemed shall surrender the certificate or certificates
representing such shares to the Corporation at the place designated in the
Redemption Notice on or before the Redemption Date, and thereupon the applicable
Redemption Price for such shares as set forth in this Section 3 shall be paid to
the order of
-8-
<PAGE>
the person whose name appears on such certificate or certificates and each
surrendered certificate shall be canceled and retired.
(g) No Rights as Stockholder Following Redemption. If any shares of
---------------------------------------------
Preferred are not redeemed solely because a holder fails to surrender the
certificate or certificates representing such shares pursuant to Section 3(f)
hereof, then, from and after the Redemption Date, the holders of such shares of
Preferred thereupon subject to redemption shall cease to have any rights of a
holder of Preferred except solely for the right to receive the Redemption Price
upon surrender of the certificate or certificates representing the shares.
Section 4. Voting Rights.
---------- -------------
(a) General. Except as otherwise provided herein, or as required by law,
-------
each issued and outstanding share of Common shall be entitled to one vote on all
matters. Except as required by law or by the provisions hereof, the holders of
the Series B Preferred shall be entitled to vote on all matters with the holders
of the Common on an as if converted basis. Except as required by law or the
provisions hereof, the holders of the Series A Preferred shall not be entitled
to vote on any matters.
(b) Board of Directors. So long as any shares of Series A Preferred are
------------------
outstanding, the holders of shares of the Series A Preferred shall have the
right to elect one director (the "SERIES A DIRECTOR") and the holders of the
shares of Common Stock and the Series B Preferred (voting on an as-if converted
basis), shall have the right to elect the remaining directors.
(c) Procedures for the Election of the Series A Director.
----------------------------------------------------
(i) The Series A Director shall hold office for a term expiring at the
next annual meeting of stockholders. Any vacancy caused by the death or
resignation of the Series A Director may be filled only by the holders of Series
A Preferred. A special meeting of the holders of the Series A Preferred
entitled to vote with respect to filling the vacancy shall be called and held as
promptly as practicable after any such death or resignation at the direction of
a majority of the Board of Directors, and in any event shall be called within
ten days, to be held within 15 days, after receipt of a written request by the
holders of record of at least 50% of the then outstanding shares of Series A
Preferred. In connection with any special meeting to be held for the purpose of
electing the Series A Director to fill a vacancy, only holders of Series A
Preferred shall be notified and be permitted to participate at such meeting. The
holders of record of at least 50% of the then outstanding shares of the Series A
Preferred may designate in writing one of their number to call the meeting, and
the meeting may be called by the person so designated upon notice in accordance
with the notice required for annual meetings of stockholders. If any special
meeting of the holders of Series A Preferred required to be called by a holder
of Series A Preferred for the election of directors pursuant to this Section
4(c) shall not have been duly called within ten days after the request therefor,
then the secretary of the Corporation shall call the meeting. Any holders of
shares of Series A Preferred shall have access to the stock record books of the
Corporation for the purpose of so calling
-9-
<PAGE>
a special meeting. The Corporation shall pay the reasonable expenses of calling
and holding any such meeting.
(ii) Any special meeting of the holders of shares of Series A
Preferred to vote for the election of directors pursuant to this Section 4(c)
shall be held in the city in which the preceding annual meeting of stockholders
of the Corporation was held or in the city designated by the holders on record
of at least 50% of the then outstanding shares of Series A Preferred. At a
special or annual meeting for the election of directors by the holders of shares
of Series A Preferred, the presence in person, by proxy or by telephone of the
holders of 50% of the outstanding shares of Series A Preferred entitled to vote
thereon shall constitute a quorum. In connection with any special meeting to be
held for the purpose of electing the Series A Director to fill a vacancy, only
holders of the Series A Preferred shall be notified and be permitted to
participate at such meeting. A majority of the holders of the shares of Series A
Preferred entitled to vote thereon present in person, by proxy or by telephone
shall have the power to adjourn the meeting for the purpose of such election,
from time to time without notice, other than announcement at the meeting, until
a quorum shall be present. The election of the Series A Director also may be
accomplished by written consent in lieu of a meeting of the holders of the
Series A Preferred.
(iii) In connection with any vote for the Series A Director, each
holder of Series A Preferred Stock as provided herein shall be entitled to one
vote for each share of Series A Preferred held by such holder that is then
convertible, the nominees receiving a plurality of the votes entitled to be cast
shall be elected.
(d) Class Voting for Directors other than Series A Director. Following
-------------------------------------------------------
the Closing of the corporation's initial public offering pursuant to an
effective registration statement under the Securities Act of 1933, as amended,
covering the offer and sale of Common Stock (the "Initial Public Offering"), all
directors other than the Series A Director shall be divided into three classes
designated as Class I, Class II, and Class III, respectively. Directors shall be
assigned to each class in accordance with a resolution or resolutions adopted by
the Board of Directors. At the first annual meeting of stockholders following
the closing of the Initial Public Offering, the term of office of the Class I
directors shall expire and Class I directors shall be elected for a full term of
three years. At the second annual meeting of stockholders following the closing
of the Initial Public Offering, the term of office of the Class II directors
shall expire and Class II directors shall be elected for a full term of three
years. At the third annual meeting of stockholders following the closing of the
Initial Public Offering, the term of office of the Class III directors shall
expire and Class III directors shall be elected for a full term of three years.
At each succeeding annual meeting of stockholders, such Directors shall be
elected for a full term of three years to succeed the Directors of the class
whose terms expire at such annual meeting.
Section 5. Dividend Rights.
--------- ---------------
(a) From the date of issuance until January 1, 1997, no holders of the
then outstanding shares of Preferred shall be entitled to receive cumulative
dividends. During the same period, to the
-10-
<PAGE>
extent that dividends are properly and legally declared by the Board of
Directors at the rate set forth below, they shall be fully paid to (i) holders
of Series A Preferred before any dividend or other distribution shall be paid on
or declared and set apart for the holders of the Series B Preferred or Common,
and (ii) holders of Series B Preferred before any dividend or other distribution
shall be paid on or declared and set apart for the holders of the Common.
(b) After January 1, 1997, the holders of outstanding Series A Preferred
shall be entitled to receive, when and as declared by the Board of Directors and
out of funds legally available therefore, cash dividends at the annual rate of
[Sixty Dollars ($60.00)]/3/ per share of outstanding Series A Preferred (as
adjusted for stock splits, stock dividends, reclassifications, and like events),
payable in preference and priority to any payment of any dividend on Series B
Preferred or Common, when and as declared by the Board of Directors in its
discretion. Such annual dividend rate shall increase to [Eighty Dollars
($80.00)]/4/ per share of Series A Preferred (as adjusted for stock splits,
stock dividends, reclassifications, and like events) after January 1, 1998, and
shall further increase to [One Hundred Dollars ($100.00)]/5/ per share of Series
A Preferred (as adjusted for stock splits, stock dividends, reclassifications,
and like events) after January 1, 1999. Such dividends shall be cumulative
whether or not earned or declared so that if such dividends in respect of any
previous or current annual dividend period, at the annual rate specified above,
shall not have been paid or declared, the deficiency shall be fully paid to the
holders of Series A Preferred before any dividend or other distribution shall be
paid on or declared and set apart for the holders of the Series B Preferred or
Common.
(c) After January 1, 1997, the holders of the Series B Preferred shall be
entitled to receive, out of any funds legally available therefor, dividends at
an annual rate of [Sixty Dollars ($60.00)]/6/ per share of outstanding Series B
Preferred (as adjusted for stock splits, stock dividends, reclassifications and
like events), payable in preference and priority to any payment of any dividend
on the Common, when and as declared by the Board of Directors in its discretion.
Such dividends shall be cumulative whether or not earned or declared so that if
such dividends in respect of any previous or current annual dividend period, at
the annual rate specified above, shall not have been paid or declared, the
deficiency shall be fully paid to the holders of Series B Preferred before any
dividend or other distribution shall be paid on or declared and set apart for
the holders of the Common.
(d) Dividends may be paid on the Common as and when declared by the Board
of Directors, subject to the prior dividend rights of the Preferred.
__________________________
/3/ Adjust for stock split.
/4/ Adjust for stock split.
/5/ Adjust for stock split.
/6/ Adjust for stock split.
-11-
<PAGE>
Section 6. Covenants. So long as any shares of Preferred shall be
---------- ---------
outstanding, the Corpo ration shall not, without first obtaining the
affirmative vote or written consent of holders of such outstanding shares of
Preferred voting together as a class (except that for the purposes of Sections
6(a) through 6(d), if one series of Preferred is affected in a manner different
than another, a majority vote of each series of Preferred so disproportionately
affected, voting as a series, shall be required):
(a) amend or repeal any provision of, or add any provision to, the
Corporation's Certificate of Incorporation or Bylaws if such action would
adversely alter or change the preferences, rights, privileges or powers of, or
the restrictions provided for the benefit of, the Series A Preferred or Series B
Preferred;
(b) reclassify any Common or other series of its capital stock shares into
shares having any preference or priority as to dividends, liquidation,
redemption, blocking rights, voting rights, conversion or otherwise superior to
or on a parity with any such preference or priority of the Series A Preferred or
Series B Preferred (including amendment of the Series A Preferred to provide it
with the right to convert into Common Stock);
(c) pay or declare any dividend or distribution on any shares of
Preferred, Common or any other series of its capital stock or apply any of its
assets to the redemption, retirement, purchase or other acquisition directly or
indirectly, through subsidiaries or otherwise, of any shares of Preferred,
Common, or any other series of its capital stock (or derivative instrument
therefor) except from employees of, or consultants to, the Corporation upon
termination of employment or consultancy and except for redemption of Preferred
or dividends on Preferred in accordance with this Certificate of Incorporation;
(d) create or issue any other class or classes of stock or series of
Preferred senior to or on parity with the Series A Preferred or the Series B
Preferred with respect to dividends, liquidation, redemption, blocking rights,
voting rights, conversion or otherwise or increase or decrease the number of
shares of any series of Preferred; or
(e) merge or consolidate with or into any other corporation (except where
a majority of the outstanding equity securities of the surviving corporation
immediately after the merger or consolidation is held by persons who were
stockholders of this Corporation immediately prior to the merger or
consolidation), or sell or otherwise transfer in a single transaction or a
series of related transactions all or substantially all of the assets of the
Corporation.
Section 7. Residual Rights. All rights accruing to the outstanding shares
---------- ---------------
of the Corporation not expressly provided for to the contrary herein shall be
vested in the Common.
Section 8. Partial Conversion or Redemption. In the event that less than
---------- --------------------------------
all of a holder's shares of Preferred shall be converted at any time pursuant to
Section 2 hereof or redeemed at any time pursuant to Section 3 hereof, the
Corporation shall promptly upon receipt of such holder's
-12-
<PAGE>
certificate for shares to be converted or promptly after the later of the dated
fixed for redemption or the receipt of such holder's certificate for shares to
be redeemed, issue a new certificate to such holder representing the unconverted
or unredeemed shares, as the case may be.
ARTICLE FIVE
------------
The Corporation is to have perpetual existence.
ARTICLE SIX
-----------
Elections of directors need not be by written ballot unless a stockholder
demands election by written ballot at the meeting and before voting begins or
unless the Bylaws of the Corporation shall so provide.
ARTICLE SEVEN
-------------
The number of directors which constitute the whole Board of Directors of
the Corporation shall be fixed exclusively by one or more resolution adopted
from time to time by the Board of Directors.
ARTICLE EIGHT
-------------
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, alter, amend or repeal
the Bylaws of the Corporation.
ARTICLE NINE
------------
(a) To the fullest extent permitted by the Delaware General Corporation Law
as the same exists or as may hereafter be amended, a director of the Corporation
shall not be personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director.
(b) The Corporation may indemnify to the fullest extent permitted by law
any person made or threatened to be made a party to an action or proceeding,
whether criminal, civil, admini strative or investigative, by reason of the
fact that he, his testator or intestate is or was a director, officer, employee
or agent of the Corporation or any predecessor of the Corporation or serves or
served at any other enterprise as a director, officer, employee or agent at the
request of the Corporation or any predecessor to the Corporation.
-13-
<PAGE>
(c) Neither any amendment nor repeal of this Article Ten, nor the adoption
of any provision of this Corporation's Certificate of Incorporation inconsistent
with this Article Ten, shall eliminate or reduce the effect of this Article Ten,
in respect of any matter occurring, or any action or proceeding accruing or
arising or that, but for this Article Ten, would accrue or arise, prior to such
amendment, repeal or adoption of an inconsistent provision.
ARTICLE TEN
-----------
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. No action may be taken by the stockholders
of the Corporation without a meeting, and no consents in lieu of a meeting may
be taken pursuant to Section 228 of the Delaware Law. The books of the
Corporation may be kept (subject to any provision contained in the statutes)
outside of the State of Delaware at such place or places as may be designated
from time to time by the Board of Directors or in the Bylaws of the Corporation.
ARTICLE ELEVEN
--------------
Vacancies created by newly created directorships, created in accordance
with the Bylaws of this Corporation, may be filled by the vote of a majority,
although less than a quorum, of the directors then in office, or by a sole
remaining director.
ARTICLE TWELVE
--------------
Advance notice of new business and stockholder nominations for the election
of directors shall be given in the manner and to the extent provided in the
Bylaws of the Corporation.
ARTICLE THIRTEEN
----------------
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation."
-14-
<PAGE>
IN WITNESS WHEREOF, Splash Technology Holdings, Inc. has caused this
Certificate of Restated and Amended of Certificate of Incorporation to be signed
by Kevin K. Macgillivray, its President and Chief Executive Officer and attested
to by Brett D. Byers, its Assistant Secretary, on __________ ___, 1996.
SPLASH TECHNOLOGY HOLDINGS, INC.
A Delaware Corporation
By:_________________________________________
Kevin K. Macgillivray
President and Chief
Executive Officer
ATTEST:
By:___________________________
Brett D. Byers
Assistant Secretary
-15-
<PAGE>
EXHIBIT 3.4
AMENDED AND RESTATED BY-LAWS
----------------------------
OF
--
SPLASH TECHNOLOGY HOLDINGS, INC.
--------------------------------
(A Delaware Corporation)
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<C> <S> <C>
ARTICLE I CORPORATE OFFICES.............................................. -1-
1.1 REGISTERED OFFICE............................................. -1-
1.2 OTHER OFFICES................................................. -1-
ARTICLE II MEETINGS OF STOCKHOLDERS -1-
2.1 PLACE OF MEETINGS............................................. -1-
2.2 ANNUAL MEETING................................................ -1-
2.3 SPECIAL MEETING............................................... -3-
2.4 NOTICE OF STOCKHOLDERS' MEETINGS.............................. -3-
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE.................. -4-
2.6 QUORUM........................................................ -4-
2.7 ADJOURNED MEETING; NOTICE..................................... -5-
2.8 CONDUCT OF BUSINESS........................................... -5-
2.9 VOTING........................................................ -5-
2.10 WAIVER OF NOTICE.............................................. -5-
2.11 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING....... -6-
2.12 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS... -6-
2.13 PROXIES....................................................... -7-
2.14 LIST OF STOCKHOLDERS ENTITLED TO VOTE......................... -7-
ARTICLE III DIRECTORS.................................................... -7-
3.1 POWERS........................................................ -7-
3.2 NUMBER OF DIRECTORS........................................... -8-
3.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS....... -8-
3.4 RESIGNATION AND VACANCIES..................................... -8-
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE...................... -9-
3.6 REGULAR MEETINGS.............................................. -9-
3.7 SPECIAL MEETINGS; NOTICE...................................... -9-
3.8 QUORUM........................................................ -10-
3.9 WAIVER OF NOTICE.............................................. -10-
3.10 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING............. -10-
3.11 FEES AND COMPENSATION OF DIRECTORS............................ -11-
3.12 APPROVAL OF LOANS TO OFFICERS................................. -11-
3.13 REMOVAL OF DIRECTORS.......................................... -11-
3.14 CLASSES OF DIRECTORS.......................................... -11-
</TABLE>
<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
Page
----
<C> <S> <C>
ARTICLE IV COMMITTEES.................................................... -12-
4.1 COMMITTEES OF DIRECTORS....................................... -12-
4.2 COMMITTEE MINUTES............................................. -13-
4.3 MEETINGS AND ACTION OF COMMITTEES............................. -13-
ARTICLE V OFFICERS....................................................... -13-
5.1 OFFICERS...................................................... -13-
5.2 APPOINTMENT OF OFFICERS....................................... -13-
5.3 SUBORDINATE OFFICERS.......................................... -13-
5.4 REMOVAL AND RESIGNATION OF OFFICERS........................... -14-
5.5 VACANCIES IN OFFICES.......................................... -14-
5.6 CHAIRMAN OF THE BOARD......................................... -14-
5.7 PRESIDENT..................................................... -14-
5.8 VICE PRESIDENTS............................................... -15-
5.9 SECRETARY..................................................... -15-
5.10 CHIEF FINANCIAL OFFICER....................................... -15-
5.11 ASSISTANT SECRETARY........................................... -16-
5.12 ASSISTANT TREASURER........................................... -16-
5.13 REPRESENTATION OF SHARES OF OTHER CORPORATIONS................ -16-
5.14 AUTHORITY AND DUTIES OF OFFICERS.............................. -16-
ARTICLE VI INDEMNITY..................................................... -17-
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS..................... -17-
6.2 INDEMNIFICATION OF OTHERS..................................... -17-
6.3 INSURANCE..................................................... -17-
ARTICLE VII RECORDS AND REPORTS -18-
7.1 MAINTENANCE AND INSPECTION OF RECORDS......................... -18-
7.2 INSPECTION BY DIRECTORS....................................... -18-
7.3 ANNUAL STATEMENT TO STOCKHOLDERS.............................. -19-
</TABLE>
-ii-
<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
Page
----
<C> <S> <C>
ARTICLE VIII GENERAL MATTERS............................................ -19-
8.1 CHECKS....................................................... -19-
8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS............. -19-
8.3 STOCK CERTIFICATES; PARTLY PAID SHARES....................... -19-
8.4 SPECIAL DESIGNATION ON CERTIFICATES.......................... -20-
8.5 LOST CERTIFICATES............................................ -20-
8.6 CONSTRUCTION; DEFINITIONS.................................... -20-
8.7 DIVIDENDS.................................................... -21-
8.8 FISCAL YEAR.................................................. -21-
8.9 SEAL......................................................... -21-
8.10 TRANSFER OF STOCK............................................ -21-
8.11 STOCK TRANSFER AGREEMENTS.................................... -21-
8.12 REGISTERED STOCKHOLDERS...................................... -21-
ARTICLE IX AMENDMENTS................................................... -22-
</TABLE>
-iii-
<PAGE>
AMENDED AND RESTATED BY-LAWS
----------------------------
OF
--
SPLASH TECHNOLOGY HOLDINGS, INC.
--------------------------------
ARTICLE
CORPORATE OFFICES
-----------------
1.1 REGISTERED OFFICE
-----------------
The registered office of the corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware. The name of the registered
agent of the corporation at such location is The Corporation Trust Company.
1.2 OTHER OFFICES
-------------
The Board of Directors may at any time establish other offices at any
place or places where the corporation is qualified to do business.
ARTICLE
MEETINGS OF STOCKHOLDERS
------------------------
2.1 PLACE OF MEETINGS
-----------------
Meetings of stockholders shall be held at any place, within or outside
the State of Delaware, designated by the Board of Directors. In the absence of
any such designation, stockholders' meetings shall be held at the registered
office of the corporation.
2.2 ANNUAL MEETING
--------------
(a) The annual meeting of stockholders shall be held each year
on a date and at a time designated by the Board of Directors. At the meeting,
directors shall be elected and any other proper business may be transacted.
(b) At an annual meeting of the stockholders, only such
business shall be conducted as shall have been properly brought before the
meeting. To be properly brought before an annual meeting, business must be: (A)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors, (B) otherwise properly brought before
the meeting by or at the direction of the Board of Directors, or (C) otherwise
properly brought before the meeting by a stockholder. For business to be
properly brought before an annual meeting by a
<PAGE>
stockholder, the stockholder must have given timely notice thereof in writing to
the Secretary of the corporation. To be timely, such stockholder's notice must
be delivered to or mailed and received by the Secretary of the corporation not
less than ninety (90) days prior to the meeting; provided, however, that in the
event that less than one-hundred (100) days notice or prior public disclosure of
the date of the meeting is given or made to stockholders, notice by the
stockholder to be timely must be so received not later than the close of
business on the tenth day following the day on which such notice of the date of
the meeting was mailed or such public disclosure was made. A stockholder's
notice to the Secretary shall set forth as to each matter the stockholder
proposes to bring before the annual meeting: (i) a brief description of the
business desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (ii) the name and address, as
they appear on the corporation's books, of the stockholder proposing such
business, (iii) the class and number of shares of the corporation which are
beneficially owned by the stockholder, (iv) any material interest of the
stockholder in such business and (v) any other information that is required to
be provided by the stockholder pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), in such stockholder's
capacity as a proponent to a stockholder proposal. Notwithstanding the
foregoing, in order to include information with respect to a stockholder
proposal in the proxy statement and form of proxy for a stockholder's meeting,
stockholders must provide notice as required by the regulations promulgated
under the 1934 Act. Notwithstanding anything in these Bylaws to the contrary,
no business shall be conducted at any annual meeting except in accordance with
the procedures set forth in this paragraph (b). The chairman of the annual
meeting shall, if the facts warrant, determine and declare at the meeting that
business was not properly brought before the meeting and in accordance with the
provisions of this paragraph (b), and, if he should so determine, he shall so
declare at the meeting that any such business not properly brought before the
meeting shall not be transacted.
(c) Only persons who are nominated in accordance with the
procedures set forth in this paragraph (c) shall be eligible for election as
Directors. Nominations of persons for election to the Board of Directors of the
corporation may be made at a meeting of stockholders by or at the direction of
the Board of Directors or by any stockholder of the corporation entitled to vote
in the election of Directors at the meeting who complies with the notice
procedures set forth in this paragraph (c). Such nominations, other than those
made by or at the direction of the Board of Directors, shall be made pursuant to
timely notice in writing to the Secretary of the corporation in accordance with
the provisions of paragraph (b) of this Section 2.2. Such stockholder's notice
shall set forth (i) as to each person, if any, whom the stockholder proposes to
nominate for election or reelection as a Director: (A) the name, age, business
address and residence address of such person, (B) the principal occupation or
employment of such person, (C) the class and number of shares of the corporation
which are beneficially owned by such person, (D) a description of all
arrangements or understandings between the stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the
nominations are to be made by the stockholder, and (E) any other information
relating to such person that is required to be disclosed in solicitations of
proxies for elections of Directors, or is otherwise required, in each case
pursuant to Regulation 14A under the 1934 Act (including without limitation such
person's written consent to being named in the proxy statement, if any, as a
nominee and to serving as a Director if elected); and (ii) as to such
stockholder giving notice, the information required to be provided pursuant to
paragraph (b) of this
-2-
<PAGE>
Section 2.2. At the request of the Board of Directors, any person nominated by
a stockholder for election as a Director shall furnish to the Secretary of the
corporation that information required to be set forth in the stockholder's
notice of nomination which pertains to the nominee. No person shall be eligible
for election as a Director of the corporation unless nominated in accordance
with the procedures set forth in this paragraph (c). The chairman of the
meeting shall, if the facts warrant, determine and declare at the meeting that a
nomination was not made in accordance with the procedures prescribed by these
Bylaws, and if he should so determine, he shall so declare at the meeting, and
the defective nomination shall be disregarded.
2.3 SPECIAL MEETING
---------------
A special meeting of the stockholders may be called at any time by the
Board of Directors, the Chairman of the Board or the President of the
Corporation. No other person or persons are permitted to call a special meeting.
No business may be conducted at a special meeting other than the business
specified by the Board of Directors as specified in its notice of calling of the
meeting delivered to the Corporation as provided below by Sections 2.4 and 2.5,
the Chairman of the Board, or the President.
If a special meeting is called by any person or persons other than the
Board of Directors, the request shall be in writing, specifying the time of such
meeting and the general nature of the business proposed to be transacted, and
shall be delivered personally or sent by registered mail or by telegraphic or
other facsimile transmission to the Chairman of the Board, the President, Chief
Executive Officer, or the Secretary of the corporation. No business may be
transacted at such special meeting except for such business as may properly be
brought before the stockholders and that is specified in such notice. The
officer receiving the request shall cause notice to be promptly given to the
stockholders entitled to vote, in accordance with the provisions of Sections 2.4
and 2.5, that a meeting will be held at the time requested by the person or
persons who called the meeting, not less than thirty-five (35) nor more than
sixty (60) days after the receipt of the request. If the notice is not given
within twenty (20) days after the receipt of the request, the person or persons
requesting the meeting may give the notice. Nothing contained in this paragraph
of this Section 2.3 shall be construed as limiting, fixing, or affecting the
time when a meeting of stockholders called by action of the Board of Directors
may be held.
2.4 NOTICE OF STOCKHOLDERS' MEETINGS
--------------------------------
Except as set forth in Section 2.3, all notices of meetings of
stockholders shall be in writing and sent or otherwise given in accordance with
Section 2.5 of these bylaws not less than ten (10) nor more than sixty (60) days
before the date of the meeting. The notice shall specify the place, date, and
hour of the meeting and (i) in the case of a special meeting, the general nature
of the business to be transacted (no business other than that specified in the
notice may be transacted) or (ii) in the case of the annual meeting, those
matters which the Board of Directors, at the time of giving the notice,
-3-
<PAGE>
intends to present for action by the stockholders (but any proper matter may be
presented at the meeting for such action). The notice of any meeting at which
directors are to be elected shall include the name of any nominee or nominees
who, at the time of the notice, the board intends to present for election.
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
--------------------------------------------
Written notice of any meeting of stockholders shall be given either
personally or by first-class mail or by facsimile, telegraphic or other written
communication. Notices not personally delivered shall be sent charges prepaid
and shall be addressed to the stockholder at the address of that stockholder
appearing on the books of the corporation or given by the shareholder to the
corporation for the purpose of notice. If no such address appears on the
corporation's books or is given, notice shall be deemed to have been given if
sent to that stockholder by mail or telegraphic or other written communication
to the corporation's principal executive office, or if published at least once
in a newspaper of general circulation in the county where that office is
located. Notice shall be deemed to have been given at the time when delivered
personally or deposited in the mail or sent by telegram or other means of
written communication.
If any notice addressed to a stockholder at the address of that
stockholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the notice to the stockholder
at that address, then all future notices or reports shall be deemed to have been
duly given without further mailing if the same shall be available to the
stockholder on written demand of the stockholder at the principal executive
office of the corporation for a period of one (1) year from the date of the
giving of the notice.
An affidavit of the mailing or other means of giving any notice of any
stockholders' meeting, executed by the Secretary, Assistant Secretary or any
transfer agent of the corporation giving the notice, shall be prima facie
evidence of the giving of such notice.
2. QUORUM
------
The holders of a majority of the stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stock holders for the transaction of
business except as otherwise provided by statute, by the certificate of
incorporation or by the Stockholders Agreement. If, however, such quorum is not
present or represented at any meeting of the stockholders, then either (i) the
Chairman of the meeting or (ii) the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum is present or represented. At such adjourned meeting at
which a quorum is present or represented, any business may be transacted that
might have been transacted at the meeting as originally noticed.
-4-
<PAGE>
2.7 ADJOURNED MEETING; NOTICE
-------------------------
When a meeting is adjourned to another time or place, unless these by-
laws otherwise require, notice need not be given of the adjourned meeting if the
time and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the corporation may transact any business that
might have been transacted at the original meeting. If the adjournment is for
more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
2.8 CONDUCT OF BUSINESS
-------------------
The chairman of any meeting of stockholders shall determine the order
of business and the procedure at the meeting, including such regulation of the
manner of voting and the conduct of business.
2.9 VOTING
------
The stockholders entitled to vote at any meeting of stockholders shall
be determined in accordance with the provisions of Section 2.12 of these by-
laws, subject to the provisions of Sections 217 and 218 of the General
Corporation Law of Delaware (relating to voting rights of fiduciaries, pledgors
and joint owners of stock and to voting trusts and other voting agreements).
Except as may be otherwise provided in the certificate of
incorporation, each stockholder shall be entitled to one vote for each share of
capital stock held by such stockholder.
2.10 WAIVER OF NOTICE
----------------
Whenever notice is required to be given under any provision of the
General Corporation Law of Delaware or of the certificate of incorporation or
these by-laws, a written waiver thereof, signed by the person entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders need be specified in any written
waiver of notice unless so required by the certificate of incorporation or these
by-laws.
-5-
<PAGE>
2.11 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING
-------------------------------------------------------
Unless otherwise provided in the certificate of incorporation, any
action required by this chapter to be taken at any annual or special meeting of
stockholders of a corporation, or any action that may be taken at any annual or
special meeting of such stockholders, may be taken without a meeting, without
prior notice, and without a vote if a consent in writing, setting forth the
action so taken, is signed by the holders of outstanding stock having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted.
Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing. If the action which is consented to is such as
would have required the filing of a certificate under any section of the General
Corporation Law of Delaware if such action had been voted on by stock holders
at a meeting thereof, then the certificate filed under such section shall state,
in lieu of any statement required by such section concerning any vote of
stockholders, that written notice and written consent have been given as
provided in Section 228 of the General Corporation Law of Delaware.
2.12 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS
-----------------------------------------------------------
In order that the corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to express consent to corpo rate action in writing without
a meeting, or entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which shall
not be more than sixty (60) nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action.
If the Board of Directors does not so fix a record date:
(i) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held.
(ii) The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting, when no prior
action by the Board of Directors is necessary, shall be the day on which the
first written consent is expressed.
(iii) The record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
-6-
<PAGE>
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
2.13 PROXIES
-------
Each stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for such stockholder by a written
proxy, signed by the stockholder and filed with the Secretary of the
corporation, but no such proxy shall be voted or acted upon after three (3)
years from its date, unless the proxy provides for a longer period. A proxy
shall be deemed signed if the stockholder's name is placed on the proxy (whether
by manual signature, typewriting, telegraphic transmission or otherwise) by the
stockholder or the stockholder's attorney-in-fact. The revocability of a proxy
that states on its face that it is irrevocable shall be governed by the
provisions of Section 212(e) of the General Corporation Law of Delaware.
2.14 LIST OF STOCKHOLDERS ENTITLED TO VOTE
-------------------------------------
The officer who has charge of the stock ledger of a corporation shall
prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present. Such list shall
presumptively determine the identity of the stockholders entitled to vote at the
meeting and the number of shares held by each of them.
ARTICLE III
DIRECTORS
---------
3.1 POWERS
------
Subject to the provisions of the General Corporation Law of Delaware and
any limitations in the certificate of incorporation or these by-laws relating to
action required to be approved by the stockholders or by the outstanding shares,
the business and affairs of the corporation shall be managed and all corporate
powers shall be exercised by or under the direction of the Board of Directors.
-7-
<PAGE>
3.2 NUMBER OF DIRECTORS
-------------------
The number of directors which constitute the whole Board of Directors
shall be fixed exclusively by one or more resolutions adopted from time to time
by the Board of Directors.
No reduction of the authorized number of directors shall have the effect
of removing any director before that director's term of office expires.
3.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS
-------------------------------------------------------
Except as provided in Section 3.4 of these by-laws, the certificate of
incorporation or the Stockholders Agreement, directors shall be elected at each
annual meeting of stockholders to hold office until the next annual meeting.
Directors need not be stockholders unless so required by the certificate of
incorporation or these by-laws, wherein other qualifications for directors may
be prescribed. Each director, including a director elected to fill a vacancy,
shall hold office until his or her successor is elected and qualified or until
his or her earlier resignation or removal.
Elections of directors need not be by written ballot.
3.4 RESIGNATION AND VACANCIES
-------------------------
Any director may resign at any time upon written notice to the attention
of the Secretary of the corporation. Subject to the provisions of the
Stockholders Agreement and the certificate of incorporation, when one or more
directors so resigns and the resignation is effective at a future date, a
majority of the directors then in office, including those who have so resigned,
shall have power to fill such vacancy or vacancies, the vote thereon to take
effect when such resignation or resignations shall become effective, and each
director so chosen shall hold office as provided in this section in the filling
of other vacancies.
Unless otherwise provided in the certificate of incorporation, these by-
laws or the Stockholders Agreement:
(i) Vacancies and newly created directorships resulting from
any increase in the authorized number of directors elected by all of the
stockholders having the right to vote as a single class may be filled by a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director.
(ii) Whenever the holders of any class or classes of stock or
series thereof are entitled to elect one or more directors by the provisions of
the certificate of incorporation, vacancies and newly created directorships of
such class or classes or series may be filled by a majority of the directors
elected by such class or classes or series thereof then in office, or by a sole
remaining director so elected.
-8-
<PAGE>
If at any time, by reason of death or resignation or other cause, the
corporation should have no directors in office, then any officer or any
stockholder or an executor, administrator, trustee or guardian of a stockholder,
or other fiduciary entrusted with like responsibility for the person or estate
of a stockholder, may call a special meeting of stockholders in accordance with
the provisions of the certificate of incorporation or these by-laws, or may
apply to the Court of Chancery for a decree summarily ordering an election as
provided in Section 211 of the General Corporation Law of Delaware.
If, at the time of filling any vacancy or any newly created directorship,
the directors then in office constitute less than a majority of the whole board
(as constituted immediately prior to any such increase), then the Court of
Chancery may, upon application of any stockholder or stockholders holding at
least ten (10) percent of the total number of the shares at the time outstanding
having the right to vote for such directors, summarily order an election to be
held to fill any such vacancies or newly created directorships, or to replace
the directors chosen by the directors then in office as aforesaid, which
election shall be governed by the provisions of Section 211 of the General
Corporation Law of Delaware as far as applicable.
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE
----------------------------------------
The Board of Directors of the corporation may hold meetings, both regular
and special, either within or outside the State of Delaware.
Unless otherwise restricted by the certificate of incorporation or these
by-laws, members of the Board of Directors, or any committee designated by the
Board of Directors, may participate in a meeting of the Board of Directors, or
any committee, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at the meeting.
3.6 REGULAR MEETINGS
----------------
Regular meetings of the Board of Directors may be held without notice at
such time and at such place as shall from time to time be determined by the
board.
3.7 SPECIAL MEETINGS; NOTICE
------------------------
Special meetings of the Board of Directors for any purpose or purposes may
be called at any time by the Chairman of the Board, the President, any Vice
President, the Secretary or any one director.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail or
telegram, charges prepaid, addressed to each director at that director's address
as it is shown on the records of the corporation. If the notice is mailed, it
shall be deposited in the United States mail at least four (4) days before the
time of the holding of the meeting. If the notice is delivered personally or by
telephone or by telegram, it shall be
-9-
<PAGE>
delivered personally or by telephone or to the telegraph company at least forty-
eight (48) hours before the time of the holding of the meeting. Any oral notice
given personally or by telephone may be communicated either to the director or
to a person at the office of the director who the person giving the notice has
reason to believe will promptly communicate it to the director. The notice need
not specify the purpose or the place of the meeting, if the meeting is to be
held at the principal executive office of the corporation.
3.8 QUORUM
------
At all meetings of the Board of Directors, a majority of the authorized
number of directors shall constitute a quorum for the transaction of business
and the act of a majority of the directors present at any meeting at which there
is a quorum shall be the act of the Board of Directors, except as may be
otherwise specifically provided by statute or by the certificate of
incorporation. If a quorum is not present at any meeting of the Board of
Directors, then the directors present thereat may adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum
is present.
A meeting at which a quorum is initially present may continue to transact
business notwithstanding the withdrawal of directors, if any action taken is
approved by at least a majority of the required quorum for that meeting.
3.9 WAIVER OF NOTICE
----------------
Whenever notice is required to be given under any provision of the General
Corporation Law of Delaware or of the certificate of incorporation or these by-
laws, a written waiver thereof, signed by the person entitled to notice, whether
before or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting, except when the person attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
directors, or members of a committee of directors, need be specified in any
written waiver of notice unless so required by the certificate of incorporation
or these by-laws.
3.10 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
-------------------------------------------------
Unless otherwise restricted by the certificate of incorporation or these
by-laws, any action required or permitted to be taken at any meeting of the
Board of Directors, or of any committee thereof, may be taken without a meeting
if all members of the board or committee, as the case may be, consent thereto in
writing and the writing or writings are filed with the minutes of proceedings of
the board or committee.
-10-
<PAGE>
3.11 FEES AND COMPENSATION OF DIRECTORS
----------------------------------
Unless otherwise restricted by the certificate of incorporation or these
by-laws, the Board of Directors shall have the authority to fix the compensation
of directors.
3.12 APPROVAL OF LOANS TO OFFICERS
-----------------------------
The corporation may lend money to, or guarantee any obligation of, or
otherwise assist any officer or other employee of the corporation or of its
subsidiary, including any officer or employee who is a director of the
corporation or its subsidiary, whenever, in the judgment of the directors, such
loan, guaranty or assistance may reasonably be expected to benefit the
corporation. The loan, guaranty or other assistance may be with or without
interest and may be unsecured, or secured in such manner as the Board of
Directors shall approve, including, without limitation, a pledge of shares of
stock of the corporation. Nothing in this section contained shall be deemed to
deny, limit or restrict the powers of guaranty or warranty of the corporation at
common law or under any statute.
3.13 REMOVAL OF DIRECTORS
--------------------
Unless otherwise restricted by statute, and except as otherwise provided
by the certificate of incorporation, these by-laws or the Stockholders
Agreement, any director or the entire Board of Directors may be removed, with or
without cause, by the holders of a majority of the shares then entitled to vote
at an election of directors; provided, however, that, so long as stockholders of
the corporation are entitled to cumulative voting, if less than the entire board
is to be removed, no director may be removed without cause if the votes cast
against his or her removal would be sufficient to elect such director if then
cumulatively voted at an election of the entire Board of Directors.
No reduction of the authorized number of directors shall have the effect
of removing any director prior to the expiration of such director's term of
office.
3.14 CLASSES OF DIRECTORS
--------------------
Following the closing of the corporation's initial public offering
pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "1933 Act"), covering the offer and sale of Common Stock
of the corporation (the "Initial Public Offering"), the Directors, other than
the Series A Director (as defined in the Corporation's Certificate of
Incorporation), shall be divided into three classes designated as Class I, Class
II and Class III, respectively. Such Directors shall be assigned to each class
in accordance with a resolution or resolutions adopted by the Board of
Directors. At the first annual meeting of stockholders following the closing of
the Initial Public Offering, the term of office of the Class I Directors shall
expire and Class I Directors shall be elected for a full term of three years. At
the second annual meeting of stockholders following the closing of the Initial
Public Offering, the term of office of the Class II Directors shall expire and
Class II Directors shall be elected for a full term of three years. At the third
annual meeting of stockholders following the closing of the Initial Public
Offering, the term of office of the Class III Directors shall expire and Class
III Directors shall be elected a full term of three years. At each succeeding
annual
-11
<PAGE>
meeting of stockholders, such Directors shall be elected for a full term of
three years to succeed the Directors of the class whose terms expire at such
annual meeting.
Notwithstanding the foregoing provisions of this Article, each Director
shall serve until his successor is duly elected and qualified or until his
earlier death, resignation or removal. No decrease in the number of Directors
constituting the Board of Directors shall shorten the term of any incumbent
Director.
ARTICLE IV
COMMITTEES
----------
4.1 COMMITTEES OF DIRECTORS
-----------------------
The Board of Directors may, by resolution passed by a majority of the
whole board, designate one or more committees, with each committee to consist of
one or more of the directors of the corporation. The board may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not such
member or members constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the Board of Directors or in the by-laws of the corporation, shall
have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the corporation, and may authorize
the seal of the corporation to be affixed to all papers that may require it; but
no such committee shall have the power or authority to (i) amend the certificate
of incorporation (except that a committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares of stock adopted
by the Board of Directors as provided in Section 151(a) of the General
Corporation Law of Delaware, fix the designations and any of the preferences or
rights of such shares relating to dividends, redemption, dissolution, any
distribution of assets of the corporation or the conversion into, or the
exchange of such shares for, shares of any other class or classes or any other
series of the same or any other class or classes of stock of the corporation or
fix the number of shares of any series of stock or authorize the increase or
decrease of the shares of any series), (ii) adopt an agreement of merger or
consolidation under Sections 251 or 252 of the General Corporation Law of
Delaware, (iii) recommend to the stockholders the sale, lease or exchange of all
or substantially all of the corporation's property and assets, (iv) recommend to
the stockholders a dissolution of the corporation or a revocation of a
dissolution, or (v) amend the bylaws of the corporation; and, unless the board
resolution establishing the committee, the by-laws or the certificate of
incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend, to authorize the issuance of stock, or to adopt
a certificate of ownership and merger pursuant to Section 253 of the General
Corporation Law of Delaware.
-12-
<PAGE>
4.2 COMMITTEE MINUTES
-----------------
Each committee shall keep regular minutes of its meetings and report the
same to the Board of Directors when required.
4.3 MEETINGS AND ACTION OF COMMITTEES
---------------------------------
Meetings and actions of committees shall be governed by, and held and
taken in accordance with, the provisions of Article III of these by-laws,
Section 3.5 (place of meetings and meetings by telephone), Section 3.6 (regular
meetings), Section 3.7 (special meetings and notice), Section 3.8 (quorum),
Section 3.9 (waiver of notice), and Section 3.10 (action without a meeting),
with such changes in the context of those by-laws as are necessary to substitute
the committee and its members for the Board of Directors and its members;
provided, however, that the time of regular meetings of committees may be
determined either by resolution of the Board of Directors or by resolution of
the committee, that special meetings of committees may also be called by
resolution of the Board of Directors and that notice of special meetings of
committees shall also be given to all alternate members, who shall have the
right to attend all meetings of the committee. The Board of Directors may adopt
rules for the government of any committee not inconsistent with the provisions
of these by-laws.
ARTICLE V
OFFICERS
--------
5.1 OFFICERS
--------
The officers of the corporation shall be a president, a secretary, and a
chief financial officer. The corporation may also have, at the discretion of
the Board of Directors, a chairman of the board, one or more vice presidents,
one or more assistant vice presidents, one or more assistant secretaries, one or
more assistant treasurers, and any such other officers as may be appointed in
accordance with the provisions of Section 5.3 of these by-laws. Any number of
offices may be held by the same person.
5.2 APPOINTMENT OF OFFICERS
-----------------------
The officers of the corporation, except such officers as may be appointed
in accordance with the provisions of Sections 5.3 or 5.5 of these by-laws, shall
be appointed by the Board of Direc tors, subject to the rights, if any, of an
officer under any contract of employment.
5.3 SUBORDINATE OFFICERS
--------------------
The Board of Directors may appoint, or empower the Chief Executive Officer
of the corporation to appoint, such other officers and agents as the business of
the corporation may require,
-13-
<PAGE>
each of whom shall hold office for such period, have such authority, and perform
such duties as are provided in these by-laws or as the Board of Directors may
from time to time determine.
5.4 REMOVAL AND RESIGNATION OF OFFICERS
-----------------------------------
Subject to the rights, if any, of an officer under any contract of
employment, any officer may be removed, either with or without cause, by an
affirmative vote of the majority of the Board of Directors at any regular or
special meeting of the board or, except in the case of an officer chosen by the
Board of Directors, by any officer upon whom such power of removal may be
conferred by the Board of Directors.
Any officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the officer is a
party.
5.5 VACANCIES IN OFFICES
--------------------
Any vacancy occurring in any office of the corporation shall be filled by
the Board of Directors.
5.6 CHAIRMAN OF THE BOARD
---------------------
The Chairman of the Board, if such an officer be elected and unless
otherwise designated by the Board of Directors, shall, if present, preside at
meetings of the Board of Directors. In addition, such officer shall exercise
and perform such other powers and duties as may from time to time be assigned to
him by the Board of Directors or as may be prescribed by these by-laws. If so
designated by the Board of Directors, then the Chairman of the Board shall also
be the Chief Executive Officer of the corporation and shall have the powers and
duties prescribed in Section 5.7 of these by-laws.
5.7 PRESIDENT
---------
Subject to such powers and duties, if any, as may be given by the Board of
Directors to the Chairman of the Board or any vice chairman, if there be such an
officer, the President shall be the Chief Executive Officer of the corporation
and shall, subject to the control of the Board of Directors, have general
supervision, direction, and control of the business and the officers of the
corporation. The President shall preside at all meetings of the stockholders
and, in the absence or nonexistence of a Chairman of the Board or if otherwise
designated by the Board of Directors, at all meetings of the Board of Directors.
The President shall have the general powers and duties of management usually
vested in the office of president of a corporation and shall have such other
powers and duties as may be prescribed by the Board of Directors or these by-
laws.
-14-
<PAGE>
5.8 VICE PRESIDENTS
---------------
In the absence or disability of the Chairman of the Board, any vice
chairman and the President, the Vice Presidents, if any, in order of their rank
as fixed by the Board of Directors or, if not ranked, a vice president
designated by the board of directors, shall perform all the duties of the
president and when so acting shall have all the powers of, and be subject to all
the restrictions upon, the president. The vice presidents shall have such other
powers and perform such other duties as from time to time may be prescribed for
them respectively by the Board of Directors, these by-laws, the President or the
Chairman of the Board.
5.9 SECRETARY
---------
The Secretary shall keep or cause to be kept, at the principal executive
office of the corporation or such other place as the Board of Directors may
direct, a book of minutes of all meetings and actions of directors, committees
of directors, and stockholders. The minutes shall show the time and place of
each meeting, whether regular or special (and, if special, how authorized and
the notice given), the names of those present at directors' meetings or
committee meetings, the number of shares present or represented at stockholders'
meetings, and the proceedings thereof.
The Secretary shall keep, or cause to be kept, at the principal executive
office of the corporation or at the office of the corporation's transfer agent
or registrar, as determined by resolution of the Board of Directors, a share
register, or a duplicate share register, showing the names of all stockholders
and their addresses, the number and classes of shares held by each, the number
and date of certificates evidencing such shares, and the number and date of
cancellation of every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and of the Board of Directors required to be given by law or by
these by-laws. The Secretary shall keep the seal of the corporation, if one be
adopted, in safe custody and shall have such other powers and perform such other
duties as may be prescribed by the Board of Directors or by these by-laws.
5.10 CHIEF FINANCIAL OFFICER
-----------------------
The Chief Financial Officer shall keep and maintain, or cause to be kept
and maintained, adequate and correct books and records of accounts of the
properties and business transactions of the corporation, including accounts of
its assets, liabilities, receipts, disbursements, gains, losses, capital
retained earnings, and shares. The books of account shall at all reasonable
times be open to inspection by any director.
The Chief Financial Officer shall deposit all moneys and other valuables
in the name and to the credit of the corporation with such depositories as may
be designated by the Board of Directors. The Chief Financial Officer shall
disburse the funds of the corporation as may be ordered by the Board of
Directors, shall render to the Chief Executive Officer and directors, whenever
they request it, an account of all his or her transactions as Chief Financial
Officer and of the financial condition of
-15-
<PAGE>
the corporation, and shall have other powers and perform such other duties as
may be prescribed by the Board of Directors or these by-laws.
The Chief Financial Officer shall be the Treasurer of the corporation
unless otherwise designated by the Board of Directors.
5.11 ASSISTANT SECRETARY
-------------------
The Assistant Secretary, or, if there is more than one, the Assistant
Secretaries in the order determined by the stockholders or Board of Directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the Secretary or in the event of his or her inability
or refusal to act, perform the duties and exercise the powers of the secretary
and shall perform such other duties and have such other powers as may be
prescribed by the Board of Directors or these by-laws.
5.12 ASSISTANT TREASURER
-------------------
The Assistant Treasurer, or, if there is more than one, the Assistant
Treasurers, in the order determined by the stockholders or Board of Directors
(or if there be no such determination, then in the order of their election),
shall, in the absence of the Chief Financial Officer or in the event of his or
her inability or refusal to act, perform the duties and exercise the powers of
the Chief Financial Officer and shall perform such other duties and have such
other powers as may be prescribed by the Board of Directors or these by-laws.
5.13 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
----------------------------------------------
The Chairman of the Board, the President, any Vice President, the Chief
Financial Officer, the Secretary or Assistant Secretary of this corporation, or
any other person authorized by the Board of Directors or the President or a vice
president, is authorized to vote, represent, and exercise on behalf of this
corporation all rights incident to any and all shares of any other corporation
or corporations standing in the name of this corporation. The authority granted
herein may be exercised either by such person directly or by any other person
authorized to do so by proxy or power of attorney duly executed by such person
having the authority.
5.14 AUTHORITY AND DUTIES OF OFFICERS
--------------------------------
In addition to the foregoing authority and duties, all officers of the
corporation shall respectively have such authority and perform such duties in
the management of the business of the corporation as may be designated from time
to time by the Board of Directors or the stockholders.
-16-
<PAGE>
ARTICLE VI
INDEMNITY
---------
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS
-----------------------------------------
The corporation shall, to the maximum extent and in the manner permitted
by the General Corporation Law of Delaware, indemnify each of its directors and
officers against expenses (including attorneys' fees), judgments, fines,
settlements, and other amounts actually and reasonably incurred in connection
with any proceeding, arising by reason of the fact that such person is or was an
agent of the corporation. For purposes of this Section 6.1, a "director" or
"officer" of the corporation includes any person (i) who is or was a director or
officer of the corporation, (ii) who is or was serving at the request of the
corporation as a director or officer of another corporation partnership, joint
venture, trust or other enterprise, or (iii) who was a director or officer of a
corporation that was a predecessor corporation of the corporation or of another
enterprise at the request of such predecessor corporation.
6.2 INDEMNIFICATION OF OTHERS
-------------------------
The corporation shall have the power, to the extent and in the manner
permitted by the General Corporation Law of Delaware, to indemnify each of its
employees and agents (other than directors and officers) against expenses
(including attorney's fees), judgments, fines, settlements, and other amounts
actually and reasonably incurred in connection with any proceeding arising by
reason of the fact that such person is or was an agent of the corporation. For
purposes of this Section 6.2, an "employee" or "agent" of the corporation (other
than a director or officer) includes any person (i) who is or was an employee or
agent of the corporation, (ii) who is or was serving at the request of the
corporation as an employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, or (iii) who was an employee or agent of a
corporation which was a predecessor corporation of the corporation or of another
enterprise at the request of such predecessor corporation.
6.3 INSURANCE
---------
The corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
the provisions of the General Corporation Law of Delaware.
-17-
<PAGE>
ARTICLE VII
RECORDS AND REPORTS
-------------------
7.1 MAINTENANCE AND INSPECTION OF RECORDS
-------------------------------------
The corporation shall, either at its principal executive officer or at
such place or places as designated by the Board of Directors, keep a record of
its stockholders listing their names and addresses and the number and class of
shares held by each stockholder, a copy of these by-laws as amended to date,
accounting books, and other records.
Any stockholder of record, in person or by attorney or other agent, shall,
upon written demand under oath stating the purpose thereof, have the right
during the usual hours for business to inspect for any proper purpose the
corporation's stock ledger, a list of its stockholders, and its other books and
records and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such person's interest as a stockholder. In every
instance where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing that authorizes the attorney or other agent so to act on
behalf of the stockholder. The demand under oath shall be directed to the
corporation at its registered office in Delaware or at its principal place of
business.
The officer who has charge of the stock ledger of the corporation shall
prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
7.2 INSPECTION BY DIRECTORS
-----------------------
Any director shall have the right to examine the corporation's stock
ledger, a list of its stockholders, and its other books and records for a
purpose reasonably related to his position as a director. The Court of Chancery
is hereby vested with the exclusive jurisdiction to determine whether a director
is entitled to the inspection sought. The Court may summarily order the corpora
tion to permit the director to inspect any and all books and records, the stock
ledger, and the stock list and to make copies or extracts therefrom. The Court
may, in its discretion, prescribe any limitations or conditions with reference
to the inspection, or award such other and further relief as the Court may deem
just and proper.
-18-
<PAGE>
7.3 ANNUAL STATEMENT TO STOCKHOLDERS
--------------------------------
The Board of Directors shall present at each annual meeting, and at any
special meeting of the stockholders when called for by vote of the stockholders,
a full and clear statement of the business and condition of the corporation.
ARTICLE VII
GENERAL MATTERS
---------------
8.1 CHECKS
------
From time to time, the Board of Directors shall determine by resolution
which person or persons may sign or endorse all checks, drafts, other orders for
payment of money, notes or other evi dences of indebtedness that are issued in
the name of or payable to the corporation, and only the persons so authorized
shall sign or endorse those instruments.
8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS
------------------------------------------------
The Board of Directors, except as otherwise provided in these by-laws, may
authorize any officer or officers, or agent or agents, to enter into any
contract or execute any instrument in the name of and on behalf of the
corporation; such authority may be general or confined to specific instances.
Unless so authorized or ratified by the Board of Directors or within the agency
power of an officer, no officer, agent or employee shall have any power or
authority to bind the corporation by any contract or engagement or to pledge its
credit or to render it liable for any purpose or for any amount.
8.3 STOCK CERTIFICATES; PARTLY PAID SHARES
--------------------------------------
The shares of the corporation shall be represented by certificates,
provided that the Board of Directors of the corporation may provide by
resolution or resolutions that some or all of any or all classes or series of
its stock shall be uncertificated shares. Any such resolution shall not apply
to shares represented by a certificate until such certificate is surrendered to
the corporation. Notwithstanding the adoption of such a resolution by the Board
of Directors, every holder of stock represented by certificates and upon request
every holder of uncertificated shares shall be entitled to have a certificate
signed by, or in the name of the corporation by the Chairman or Vice-Chairman of
the Board of Directors, or the President or Vice-President, and by the Chief
Financial Officer or an assistant treasurer, or the Secretary or an assistant
secretary of such corporation representing the number of shares registered in
certificate form. Any or all of the signatures on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate has ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the corporation with the same effect as if the person were such
officer, transfer agent or registrar at the date of issue.
-19-
<PAGE>
The corporation may issue the whole or any part of its shares as partly
paid and subject to call for the remainder of the consideration to be paid
therefor. Upon the face or back of each stock certificate issued to represent
any such partly paid shares, or upon the books and records of the corporation in
the case of uncertificated partly paid shares, the total amount of the
consideration to be paid therefor and the amount paid thereon shall be stated.
Upon the declaration of any dividend on fully paid shares, the corporation shall
declare a dividend upon partly paid shares of the same class, but only upon the
basis of the percentage of the consideration actually paid thereon.
8.4 SPECIAL DESIGNATION ON CERTIFICATES
-----------------------------------
If the corporation is authorized to issue more than one class of stock or
more than one series of any class, then the powers, the designations, the
preferences, and the relative, participating, optional or other special rights
of each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate that the corporation shall
issue to represent such class or series of stock; provided, however, that,
except as otherwise provided in Section 202 of the General Corporation Law of
Delaware, in lieu of the foregoing requirements there may be set forth on the
face or back of the certificate that the corporation shall issue to represent
such class or series of stock a statement that the corporation will furnish
without charge to each stockholder who so requests the powers, the designations,
the preferences, and the relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
8.5 LOST CERTIFICATES
-----------------
Except as provided in this Section 8.5, no new certificates for shares
shall be issued to replace a previously issued certificate unless the latter is
surrendered to the corporation and canceled at the same time. The corporation
may issue a new certificate of stock or uncertificated shares in the place of
any certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the corporation may require the owner of the lost, stolen or
destroyed certificate, or the owner's legal representative, to give the
corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate or uncertificated shares.
8.6 CONSTRUCTION; DEFINITIONS
-------------------------
Unless the context requires otherwise, the general provisions, rules of
construction, and definitions in the Delaware General Corporation Law shall
govern the construction of these by-laws. Without limiting the generality of
this provision, the singular number includes the plural, the plural number
includes the singular, and the term "person" includes both a corporation and a
natural person.
-20-
<PAGE>
8.7 DIVIDENDS
---------
The directors of the corporation, subject to any restrictions contained in
(i) the General Corporation Law of Delaware or (ii) the certificate of
incorporation, may declare and pay dividends upon the shares of its capital
stock. Dividends may be paid in cash, in property, or in shares of the
corporation's capital stock.
The directors of the corporation may set apart out of any of the funds of
the corporation available for dividends a reserve or reserves for any proper
purpose and may abolish any such reserve. Such purposes shall include but not be
limited to equalizing dividends, repairing or maintaining any property of the
corporation, and meeting contingencies.
8.8 FISCAL YEAR
-----------
The fiscal year of the corporation shall be fixed by resolution of the
Board of Directors and may be changed by the Board of Directors.
8.9 SEAL
----
The corporation may adopt a corporate seal, which shall be adopted and
which may be altered by the Board of Directors, and may use the same by causing
it or a facsimile thereof to be impressed or affixed or in any other manner
reproduced.
8.10 TRANSFER OF STOCK
-----------------
Upon surrender to the corporation or the transfer agent of the corporation
of a certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignation or authority to transfer, it shall be the duty of the
corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate, and record the transaction in its books.
8.11 STOCK TRANSFER AGREEMENTS
-------------------------
The corporation shall have power to enter into and perform any agreement
with any number of stockholders of any one or more classes of stock of the
corporation to restrict the transfer of shares of stock of the corporation of
any one or more classes owned by such stockholders in any manner not prohibited
by the General Corporation Law of Delaware.
8.12 REGISTERED STOCKHOLDERS
-----------------------
The corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends and
to vote as such owner, shall be entitled to hold liable for calls and
assessments the person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on
-21-
<PAGE>
the part of another person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of Delaware.
ARTICLE IX
AMENDMENTS
----------
Subject to any voting requirements set forth in the corporation's
certificate of incorporation, the by-laws of the corporation may be adopted,
amended or repealed by the stockholders entitled to vote; provided, however,
that the corporation may, in its certificate of incorporation, confer the power
to adopt, amend or repeal by-laws upon the directors. The fact that such power
has been so conferred upon the directors shall not divest the stockholders of
the power, nor limit their power to adopt, amend or repeal by-laws.
-22-
<PAGE>
CERTIFICATE OF ADOPTION OF AMENDED AND RESTATED BY-LAWS
OF
SPLASH TECHNOLOGY HOLDINGS, INC.
Certificate by Secretary of Adoption
------------------------------------
The undersigned hereby certifies that he is the duly elected, qualified,
and acting Assistant Secretary of Splash Technology Holdings, Inc. and that the
foregoing Amended and Restated By-Laws, comprising ___________________ (___)
pages, were ratified as the By-Laws of the corporation by the unanimous written
consent of the Board of Directors effective as of ________________________,
1996.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Adoption of Amended and Restated By-laws on _________________________, 1996.
By: ___________________________________
Brett D. Byers
Assistant Secretary
<PAGE>
EXHIBIT 3.5
AMENDED AND RESTATED
--------------------
CERTIFICATE OF INCORPORATION
OF
SPLASH TECHNOLOGY HOLDINGS, INC.
A DELAWARE CORPORATION
----------------------
Splash Technology Holdings, Inc., a corporation organized and existing
under the laws of the State of Delaware, does hereby certify:
1. The name of the corporation is Splash Technology Holdings, Inc., (the
"Corporation"). The original Certificate of Incorporation of the Corporation
was filed with the Secretary of State of the State of Delaware on December 20,
1995.
2. The restatement herein set forth has been duly approved by the Board
of Directors of the Corporation and by the stockholders of the Corporation
pursuant to Section 242 of the General Corporation Law of the State of Delaware
("Delaware Law").
3. The restatement herein set forth has been duly adopted pursuant to
Section 245 of the Delaware Law. This Amended and Restated Certificate of
Incorporation restates and integrates and amends the provisions of the
Corporation's Certificate of Incorporation.
4. The text of the Certificate of Incorporation is hereby amended and
restated to read in its entirety as follows:
ARTICLE ONE
-----------
The name of this corporation is Splash Technology Holdings, Inc. (the
"Corporation").
ARTICLE TWO
-----------
The address of the Corporation's registered office in the State of Delaware
is 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
<PAGE>
ARTICLE THREE
-------------
The Corporation shall have perpetual existence. The nature of the business
or purposes to be conducted or promoted by the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
ARTICLE FOUR
------------
This Corporation is authorized to issue two classes of shares to be
designated respectively Preferred Stock and Common Stock. The total number of
shares of Common Stock this Corporation shall have the authority to issue is
50,000,000 shares, and shall have a par value of $0.001 per share ("COMMON"),
and the total number of shares of Preferred Stock this corporation shall have
authority to issue is 5,000,000, and shall have a par value of $0.001 per share
and shall be undesignated as to series ("PREFERRED").
Any Preferred Stock not previously designated as to series may be issued
from time to time in one or more series pursuant to a resolution or resolutions
providing for such issue duly adopted by the Board of Directors (authority to do
so being hereby expressly vested in the Board), and such resolution or
resolutions shall also set forth the voting powers, full or limited or none, of
each such series of Preferred Stock and shall fix the designations, preferences
and relative, participating, optional or other special rights and
qualifications, limitations or restrictions of each such series of Preferred
Stock. The Board of Directors is authorized to alter the designation, rights,
preferences, privileges and restrictions granted to or imposed upon any wholly
unissued series of Preferred Stock and, within the limits and restrictions
stated in any resolution or resolutions of the Board of Directors originally
fixing the number of shares constituting any series of Preferred Stock, to
increase or decrease (but not below the number of shares of any such series then
outstanding) the number of shares of any such series subsequent to the issue of
shares of that series.
Each share of Preferred Stock issued by the Corporation, if reacquired by
the Corporation (whether by redemption, repurchase, conversion to Common Stock
or other means), shall upon such reacquisition resume the status of authorized
and unissued shares of Preferred Stock, undesignated as to series and available
for designation and issuance by the Corporation in accordance with the
immediately preceding paragraph.
The Corporation shall from time to time in accordance with the laws of the
State of Delaware increase the authorized amount of its Common Stock if at any
time the number of shares of Common Stock remaining unissued and available for
issuance shall not be sufficient to permit conversion of the Preferred Stock.
-2-
<PAGE>
ARTICLE FIVE
------------
The Corporation is to have perpetual existence.
ARTICLE SIX
-----------
Elections of directors need not be by written ballot unless a stockholder
demands election by written ballot at the meeting and before voting begins or
unless the Bylaws of the Corporation shall so provide.
ARTICLE SEVEN
-------------
The number of directors which constitute the whole Board of Directors of
the Corporation shall be fixed exclusively by one or more resolution adopted
from time to time by the Board of Directors. The Board of Directors shall be
divided into three classes designated as Class I, Class II, and Class III,
respectively. Directors shall be assigned to each class in accordance with a
resolution or resolutions adopted by the Board of Directors. At the first
annual meeting of stockholders following the date hereof, the term of office of
the Class I directors shall expire and Class I directors shall be elected for a
full term of three years. At the second annual meeting of stockholders
following the date hereof, the term of office of the Class II directors shall
expire and Class II directors shall be elected for a full term of three years.
At the third annual meeting of stockholders following the date hereof, the term
of office of the Class III directors shall expire and Class III directors shall
be elected for a full term of three years. At each succeeding annual meeting of
stockholders, directors shall be elected for a full term of three years to
succeed the directors of the class whose terms expire at such annual meeting.
ARTICLE EIGHT
-------------
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, alter, amend or repeal
the Bylaws of the Corporation.
ARTICLE NINE
------------
(a) To the fullest extent permitted by the Delaware General Corporation Law
as the same exists or as may hereafter be amended, a director of the Corporation
shall not be personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director.
-3-
<PAGE>
(b) The Corporation may indemnify to the fullest extent permitted by law
any person made or threatened to be made a party to an action or proceeding,
whether criminal, civil, admini strative or investigative, by reason of the
fact that he, his testator or intestate is or was a director, officer, employee
or agent of the Corporation or any predecessor of the Corporation or serves or
served at any other enterprise as a director, officer, employee or agent at the
request of the Corporation or any predecessor to the Corporation.
(c) Neither any amendment nor repeal of this Article Ten, nor the adoption
of any provision of this Corporation's Certificate of Incorporation inconsistent
with this Article Ten, shall eliminate or reduce the effect of this Article Ten,
in respect of any matter occurring, or any action or proceeding accruing or
arising or that, but for this Article Ten, would accrue or arise, prior to such
amendment, repeal or adoption of an inconsistent provision.
ARTICLE TEN
-----------
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. No action may be taken by the stockholders
of the Corporation without a meeting, and no consents in lieu of a meeting may
be taken pursuant to Section 228 of the Delaware Law. The books of the
Corporation may be kept (subject to any provision contained in the statutes)
outside of the State of Delaware at such place or places as may be designated
from time to time by the Board of Directors or in the Bylaws of the Corporation.
ARTICLE ELEVEN
--------------
Vacancies created by newly created directorships, created in accordance
with the Bylaws of this Corporation, may be filled by the vote of a majority,
although less than a quorum, of the directors then in office, or by a sole
remaining director.
ARTICLE TWELVE
--------------
Advance notice of new business and stockholder nominations for the election
of directors shall be given in the manner and to the extent provided in the
Bylaws of the Corporation.
ARTICLE THIRTEEN
----------------
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation."
-4-
<PAGE>
IN WITNESS WHEREOF, Splash Technology Holdings, Inc. has caused this
Certificate of Restated and Amended of Certificate of Incorporation to be signed
by Kevin K. Macgillivray, its President and Chief Executive Officer and attested
to by Brett D. Byers, its Assistant Secretary, on __________ ___, 1996.
SPLASH TECHNOLOGY HOLDINGS, INC.
A Delaware Corporation
By:_________________________________________
Kevin K. Macgillivray
President and Chief
Executive Officer
ATTEST:
By:_________________________________
Brett D. Byers
Assistant Secretary
-5-
<PAGE>
EXHIBIT 10.2
SPLASH TECHNOLOGY HOLDINGS, INC.
1996 STOCK OPTION PLAN
(AMENDED AS OF ___________, 1996)
1. Purposes of the Plan. The purposes of this Stock Option Plan are to
--------------------
attract and retain the best available personnel for positions of substantial
responsibility, to provide additional incentive to Employees and Consultants of
the Company and its Subsidiaries and to promote the success of the Company's
business. Options granted under the Plan may be incentive stock options (as
defined under Section 422 of the Code) or nonstatutory stock options, as
determined by the Administrator at the time of grant of an option and subject to
the applicable provisions of Section 422 of the Code, as amended, and the
regulations promulgated thereunder.
2. Definitions. As used herein, the following definitions shall apply:
-----------
(a) "Administrator" means the Board or any of its Committees
-------------
appointed pursuant to Section 4 of the Plan.
(b) "Applicable Laws" means the requirements relating to the
---------------
administration of stock option plans under U.S. state corporate laws, U.S.
federal and state securities laws, the Code, any stock exchange or quotation
system on which the Common Stock is listed or quoted and the applicable laws of
any foreign country or jurisdiction where Options are, or will be, granted under
the Plan.
(c) "Board" means the Board of Directors of the Company.
-----
(d) "Code" means the Internal Revenue Code of 1986, as amended.
----
(e) "Committee" means a Committee appointed by the Board of
---------
Directors in accordance with Section 4 of the Plan.
(f) "Common Stock" means the Common Stock of the Company.
------------
(g) "Company" means Splash Technology Holdings, Inc., a Delaware
-------
corporation.
(h) "Consultant" means any person who is engaged by the Company or
----------
any Parent or Subsidiary to render consulting or advisory services and is
compensated for such services, and any director of the Company whether
compensated for such services or not.
(i) "Continuous Status as an Employee or Consultant" means that
----------------------------------------------
the employment or consulting relationship with the Company, any Parent, or
Subsidiary, is not interrupted or terminated. Continuous Status as an Employee
or Consultant shall not be considered interrupted in the case of (i) any leave
of absence approved by the Company or (ii) transfers between locations of
<PAGE>
the Company or between the Company, its Parent, any Subsidiary, or any
successor. A leave of absence approved by the Company shall include sick leave,
military leave, or any other personal leave approved by an authorized
representative of the Company. For purposes of Incentive Stock Options, no such
leave may exceed 90 days, unless reemployment upon expiration of such leave is
guaranteed by statute or contract, including Company policies. If reemployment
upon expiration of a leave of absence approved by the Company is not so
guaranteed, on the 181st day of such leave any Incentive Stock Option held by
the Optionee shall cease to be treated as an Incentive Stock Option and shall be
treated for tax purposes as a Nonstatutory Stock Option.
(j) "Employee" means any person, including Officers and directors,
--------
employed by the Company or any Parent or Subsidiary of the Company. The payment
of a director's fee by the Company shall not be sufficient to constitute
"employment" by the Company.
(k) "Exchange Act" means the Securities Exchange Act of 1934, as
------------
amended.
(l) "Fair Market Value" means, as of any date, the value of Common
-----------------
Stock determined as follows:
(i) If the Common Stock is listed on any established stock
exchange or a national market system, including without limitation the Nasdaq
National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its
Fair Market Value shall be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such exchange or system for
the last market trading day prior to the time of determination, as reported in
The Wall Street Journal or such other source as the Administrator deems
reliable;
(ii) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, its Fair Market Value
shall be the mean between the high bid and low asked prices for the Common Stock
on the last market trading day prior to the day of determination, or;
(iii) In the absence of an established market for the Common
Stock, the Fair Market Value thereof shall be determined in good faith by the
Administrator.
(m) "Incentive Stock Option" means an Option intended to qualify
----------------------
as an incentive stock option within the meaning of Section 422 of the Code.
(n) "Nonstatutory Stock Option" means an Option not intended to
-------------------------
qualify as an Incentive Stock Option.
(o) "Officer" means a person who is an officer of the Company
within the meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
(p) "Option" means a stock option granted pursuant to the Plan.
------
-2-
<PAGE>
(q) "Optioned Stock" means the Common Stock subject to an Option.
--------------
(r) "Optionee" means an Employee or Consultant who receives an
--------
Option.
(s) "Parent" means a "parent corporation", whether now or
------
hereafter existing, as defined in Section 424(e) of the Code.
(t) "Plan" means this 1996 Stock Option Plan.
----
(u) "Section 16(b)" means Section 16(b) of the Securities Exchange
-------------
Act of 1934, as amended.
(v) "Share" means a share of the Common Stock, as adjusted in
-----
accordance with Section 11 below.
(w) "Subsidiary" means a "subsidiary corporation", whether now or
----------
hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of Section 11
-------------------------
of the Plan, the maximum aggregate number of Shares which may be optioned and
sold under the Plan is 900,000 Shares. The Shares may be authorized, but
unissued, or reacquired Common Stock.
If an Option expires or becomes unexercisable without having been
exercised in full, or is surrendered pursuant to an option exchange program, the
unpurchased Shares which were subject thereto shall become available for future
grant or sale under the Plan (unless the Plan has terminated); provided,
--------
however, that Shares that have actually been issued under the Plan shall not be
returned to the Plan and shall not become available for future distribution
under the Plan, except that if unvested Shares are repurchased by the Company at
their original purchase price, and the original purchaser of such Shares did not
receive any benefits of ownership of such Shares, such Shares shall become
available for future grant under the Plan. For purposes of the preceding
sentence, voting rights shall not be considered a benefit of Share ownership.
4. Administration of the Plan.
--------------------------
(a) Procedure.
---------
(i) Multiple Administrative Bodies. The Plan may be
------------------------------
administered by different Committees with respect to different groups of Service
Providers.
(ii) Section 162(m). To the extent that the Administrator
--------------
determines it to be desirable to qualify Options granted hereunder as
"performance-based compensation" within the meaning of Section 162(m) of the
Code, the Plan shall be administered by a Committee of two or more "outside
directors" within the meaning of Section 162(m) of the Code.
-3-
<PAGE>
(iii) Rule 16b-3. To the extent desirable to qualify
----------
transactions hereunder as exempt under Rule 16b-3, the Plan shall be
administered by the Board or a Committee of two or more "non-employee directors"
within the meaning of Rule 16b-3.
(iv) Other Administration. Other than as provided above, the
--------------------
Plan shall be administered by (A) the Board or (B) a Committee, which committee
shall be constituted to satisfy Applicable Laws.
(b) Powers of the Administrator. Subject to the provisions of the
---------------------------
Plan and, in the case of a Committee, the specific duties delegated by the Board
to such Committee, and subject to the approval of any relevant authorities,
including the approval, if required, of any stock exchange upon which the Common
Stock is listed, the Administrator shall have the authority, in its discretion:
(i) to determine the Fair Market Value of the Common Stock;
(ii) to select the Consultants and Employees to whom Options
may from time to time be granted hereunder;
(iii) to determine whether and to what extent Options are
granted hereunder;
(iv) to determine the number of shares of Common Stock to be
covered by each such award granted hereunder;
(v) to approve forms of agreement for use under the Plan;
(vi) to determine the terms and conditions of any award
granted hereunder;
(vii) to determine whether and under what circumstances an
Option may be settled in cash under subsection 9(e) instead of Common Stock;
(viii) to reduce the exercise price of any Option to the then
current Fair Market Value if the Fair Market Value of the Common Stock covered
by such Option has declined since the date the Option was granted; and
(ix) to construe and interpret the terms of the Plan and
awards granted pursuant to the Plan.
(c) Effect of Administrator's Decision. All decisions,
----------------------------------
determinations and interpretations of the Administrator shall be final and
binding on all Optionees and any other holders of any Options.
-4-
<PAGE>
5. Eligibility.
-----------
(a) Nonstatutory Stock Options may be granted to Employees and
Consultants. Incentive Stock Options may be granted only to Employees. An
Employee or Consultant who has been granted an Option may, if otherwise
eligible, be granted additional Options.
(b) Each Option shall be designated in the written option agreement
as either an Incentive Stock Option or a Nonstatutory Stock Option. However,
notwithstanding such designation, to the extent that the aggregate Fair Market
Value of the Shares with respect to which Incentive Stock Options are
exercisable for the first time by the Optionee during any calendar year (under
all plans of the Company and any Parent or Subsidiary) exceeds $100,000, such
Options shall be treated as Nonstatutory Stock Options. For purposes of this
Section 5(b), Incentive Stock Options shall be taken into account in the order
in which they were granted. The Fair Market Value of the Shares shall be
determined as of the time the Option with respect to such Shares is granted.
(c) The Plan shall not confer upon any Optionee any right with
respect to continuation of employment or consulting relationship with the
Company, nor shall it interfere in any way with his or her right or the
Company's right to terminate his or her employment or consulting relationship at
any time, with or without cause.
(d) Upon the Company or a successor corporation being subject to
Section 162(m) of the Code or upon the Plan being assumed by a corporation which
is subject to Section 162(m) of the Code, the following limitations shall apply
to grants of Options to Employees:
(i) No Employee shall be granted, in any fiscal year of the
Company, Options to purchase more than 100,000 Shares.
(ii) In connection with his or her initial employment, an
Employee may be granted Options to purchase up to an additional 100,000 Shares
which shall not count against the limit set forth in subsection (i) above.
(iii) The foregoing limitations shall be adjusted
proportionately in connection with any change in the Company's capitalization as
described in Section 11.
(iv) If an Option is cancelled in the same fiscal year of the
Company in which it was granted (other than in connection with a transaction
described in Section 11), the cancelled Option will be counted against the limit
set forth in subsection (i) above. For this purpose, if the exercise price of an
Option is reduced, the transaction will be treated as a cancellation of the
Option and the grant of a new Option.
6. Term of Plan. The Plan shall become effective upon the earlier to
------------
occur of its adoption by the Board of Directors or its approval by the
shareholders of the Company, as described
-5-
<PAGE>
in Section 17 of the Plan. It shall continue in effect for a term of ten (10)
years unless sooner terminated under Section 13 of the Plan.
7. Term of Option. The term of each Option shall be the term stated in
--------------
the Option Agreement; provided, however, that the term shall be no more than ten
(10) years from the date of grant thereof. However, in the case of an Incentive
Stock Option granted to an Optionee who, at the time the Option is granted, owns
stock representing more than ten percent (10%) of the voting power of all
classes of stock of the Company or any Parent or Subsidiary, the term of the
Option shall be five (5) years from the date of grant thereof or such shorter
term as may be provided in the Option Agreement.
8. Option Exercise Price and Consideration.
---------------------------------------
The per share exercise price for the Shares to be issued pursuant to
exercise of an Option shall be such price as is determined by the Administrator,
but shall be subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time of the
grant of such Incentive Stock Option, owns stock representing more than ten
percent (10%) of the voting power of all classes of stock of the Company or any
Parent or Subsidiary, the per Share exercise price shall be no less than 110% of
the Fair Market Value per Share on the date of grant.
(B) granted to any Employee other than an Employee
described in the preceding paragraph, the per Share exercise price shall be no
less than 100% of the Fair Market Value per Share on the date of grant.
(ii) In the case of a Nonstatutory Stock Option, the per
Share exercise price shall be determined by the Administrator. In the case of a
Nonstatutory Stock Option intended to qualify as "performance-based
compensation" within the meaning of Section 162(m) of the Code, the per Share
exercise price shall be no less than 100% of the Fair Market Value per Share on
the date of grant.
(iii) Notwithstanding the foregoing, Options may be granted
with a per Share exercise price of less than 100% of the Fair Market Value per
Share on the date of grant pursuant to a merger or other corporate transaction.
(b) Waiting Period and Exercise Dates. At the time an Option is
---------------------------------
granted, the Administrator shall fix the period within which the Option may be
exercised and shall determine any conditions which must be satisfied before the
Option may be exercised.
-6-
<PAGE>
(c) The consideration to be paid for the Shares to be issued upon
exercise of an Option, including the method of payment, shall be determined by
the Administrator (and, in the case of an Incentive Stock Option, shall be
determined at the time of grant) and may consist entirely of (1) cash, (2)
check, (3) promissory note, (4) other Shares which (x) in the case of Shares
acquired upon exercise of an Option have been owned by the Optionee for more
than six months on the date of surrender and (y) have a Fair Market Value on the
date of surrender equal to the aggregate exercise price of the Shares as to
which said Option shall be exercised, (5) delivery of a properly executed
exercise notice together with such other documentation as the Administrator and
the broker, if applicable, shall require to effect an exercise of the Option and
delivery to the Company of the sale or loan proceeds required to pay the
exercise price, or (6) any combination of the foregoing methods of payment. In
making its determination as to the type of consideration to accept, the
Administrator shall consider if acceptance of such consideration may be
reasonably expected to benefit the Company.
9. Exercise of Option.
------------------
(a) Procedure for Exercise; Rights as a Shareholder. Any Option
-----------------------------------------------
granted hereunder shall be exercisable at such times and under such conditions
as determined by the Administrator, including performance criteria with respect
to the Company and/or the Optionee, and as shall be permissible under the terms
of the Plan. Unless the Administrator provides otherwise, vesting of Options
granted hereunder shall be tolled during any unpaid leave of absence. An Option
may not be exercised for a fraction of a Share.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of such
exercise has been given to the Company in accordance with the terms of the
Option by the person entitled to exercise the Option and full payment for the
Shares with respect to which the Option is exercised has been received by the
Company. Full payment may, as authorized by the Administrator, consist of any
consideration and method of payment allowable under Section 8(c) of the Plan.
Until the issuance of Shares (as evidenced by the appropriate entry on the books
of the Company or of a duly authorized transfer agent of the Company), no right
to vote or receive dividends or any other rights as a shareholder shall exist
with respect to the Optioned Stock, notwithstanding the exercise of the Option.
The Company shall issue (or cause to be issued) such Shares promptly upon
exercise of the Option. No adjustment will be made for a dividend or other
right for which the record date is prior to the date the Shares are issued,
except as provided in Section 11 of the Plan.
Exercise of an Option in any manner shall result in a decrease in the
number of Shares which thereafter may be available, both for purposes of the
Plan and for sale under the Option, by the number of Shares as to which the
Option is exercised.
(b) Termination of Employment or Consulting Relationship. In the
----------------------------------------------------
event of termination of an Optionee's Continuous Status as an Employee or
Consultant with the Company (but
-7-
<PAGE>
not in the event of an Optionee's change of status from Employee to
Consultant (in which case an Employee's Incentive Stock Option shall
automatically convert to a Nonstatutory Stock Option on the date three (3)
months and one day from the date of such change of status) or from Consultant to
Employee), such Optionee may, but only within such period of time as is
determined by the Administrator, with such determination in the case of an
Incentive Stock Option not exceeding three (3) months after the date of such
termination (but in no event later than the expiration date of the term of such
Option as set forth in the Option Agreement), exercise his or her Option to the
extent that Optionee was entitled to exercise it at the date of such
termination. To the extent that Optionee was not entitled to exercise the
Option at the date of such termination, or if Optionee does not exercise such
Option to the extent so entitled within the time specified herein, the Option
shall terminate.
(c) Disability of Optionee. In the event of termination of an
----------------------
Optionee's consulting relationship or Continuous Status as an Employee as a
result of his or her disability (as defined in Section 22(e)(3) of the Code),
Optionee may, but only within twelve (12) months from the date of such
termination (and in no event later than the expiration date of the term of such
Option as set forth in the Option Agreement), exercise the Option to the extent
otherwise entitled to exercise it at the date of such termination. To the extent
that Optionee is not entitled to exercise the Option at the date of termination,
or if Optionee does not exercise such Option to the extent so entitled within
the time specified herein, the Option shall terminate, and the Shares covered by
such Option shall revert to the Plan.
(d) Death of Optionee. In the event of the death of an Optionee,
-----------------
the Option may be exercised at any time within twelve (12) months following the
date of death (but in no event later than the expiration of the term of such
Option as set forth in the Notice of Grant), by the Optionee's estate or by a
person who acquired the right to exercise the Option by bequest or inheritance,
but only to the extent that the Optionee was entitled to exercise the Option at
the date of death. If, at the time of death, the Optionee was not entitled to
exercise his or her entire Option, the Shares covered by the unexercisable
portion of the Option shall immediately revert to the Plan. If, after death, the
Optionee's estate or a person who acquired the right to exercise the Option by
bequest or inheritance does not exercise the Option within the time specified
herein, the Option shall terminate, and the Shares covered by such Option shall
revert to the Plan.
(e) Buyout Provisions. The Administrator may at any time offer
-----------------
to buy out for a payment in cash or Shares, an Option previously granted, based
on such terms and conditions as the Administrator shall establish and
communicate to the Optionee at the time that such offer is made.
10. Non-Transferability of Options. Unless otherwise provided for by the
------------------------------
Administrator in the stock option agreement, Options may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent or distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee.
-8-
<PAGE>
11. Adjustments Upon Changes in Capitalization or Merger.
----------------------------------------------------
(a) Changes in Capitalization. Subject to any required action by
-------------------------
the shareholders of the Company, the number of shares of Common Stock covered by
each outstanding Option, and the number of shares of Common Stock which have
been authorized for issuance under the Plan but as to which no Options have yet
been granted or which have been returned to the Plan upon cancellation or
expiration of an Option, as well as the price per share of Common Stock covered
by each such outstanding Option, shall be proportionately adjusted for any
increase or decrease in the number of issued shares of Common Stock resulting
from a stock split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other increase or decrease in the
number of issued shares of Common Stock effected without receipt of
consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the
Administrator, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issuance by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares of Common Stock subject to an Option.
(b) Dissolution or Liquidation. In the event of the proposed
--------------------------
dissolution or liquidation of the Company, the Administrator shall notify each
Optionee as soon as practicable prior to the effective date of such proposed
transaction. The Administrator in its discretion may provide for an Optionee to
have the right to exercise his or her Option until ten (10) days prior to such
transaction as to all of the Optioned Stock covered thereby, including Shares as
to which the Option would not otherwise be exercisable. In addition, the
Administrator may provide that any Company repurchase option applicable to any
Shares purchased upon exercise of an Option shall lapse as to all such Shares,
provided the proposed dissolution or liquidation takes place at the time and in
the manner contemplated. To the extent it has not been previously exercised, an
Option will terminate immediately prior to the consummation of such proposed
action.
(c) Merger or Asset Sale. In the event of a merger of the
--------------------
Company with or into another corporation, or the sale of substantially all of
the assets of the Company, each outstanding Option shall be assumed or an
equivalent option substituted by the successor corporation or a Parent or
Subsidiary of the successor corporation. In the event that the successor
corporation refuses to assume or substitute for the Option, the Optionee shall
fully vest in and have the right to exercise the Option as to all of the
Optioned Stock, including Shares as to which it would not otherwise be vested or
exercisable. If an Option becomes fully vested and exercisable in lieu of
assumption or substitution in the event of a merger or sale of assets, the
Administrator shall notify the Optionee in writing or electronically that the
Option shall be fully vested and exercisable for a period of fifteen (15) days
from the date of such notice, and the Option shall terminate upon the expiration
of such period. For the purposes of this paragraph, the Option shall be
considered assumed if, following the merger or sale of assets, the option or
right confers the right to purchase or receive, for each Share of Optioned Stock
subject to the Option immediately prior to the merger or sale of assets, the
consideration
-9-
<PAGE>
(whether stock, cash, or other securities or property) received in the merger or
sale of assets by holders of Common Stock for each Share held on the effective
date of the transaction (and if holders were offered a choice of consideration,
the type of consideration chosen by the holders of a majority of the outstanding
Shares); provided, however, that if such consideration received in the merger or
sale of assets is not solely common stock of the successor corporation or its
Parent, the Administrator may, with the consent of the successor corporation,
provide for the consideration to be received upon the exercise of the Option,
for each Share of Optioned Stock subject to the Option, to be solely common
stock of the successor corporation or its Parent equal in fair market value to
the per share consideration received by holders of Common Stock in the merger or
sale of assets.
12. Time of Granting Options. The date of grant of an Option shall, for
------------------------
all purposes, be the date on which the Administrator makes the determination
granting such Option, or such other date as is determined by the Board. Notice
of the determination shall be given to each Employee or Consultant to whom an
Option is so granted within a reasonable time after the date of such grant.
13. Amendment and Termination of the Plan.
-------------------------------------
(a) Amendment and Termination. The Board may at any time amend,
-------------------------
alter, suspend or discontinue the Plan, but no amendment, alteration, suspension
or discontinuation shall be made which would impair the rights of any Optionee
under any grant theretofore made, without his or her consent. In addition, to
the extent necessary and desirable to comply with Applicable Laws, the Company
shall obtain shareholder approval of any Plan amendment in such a manner and to
such a degree as required.
(b) Effect of Amendment or Termination. Any such amendment or
----------------------------------
termination of the Plan shall not affect Options already granted, and such
Options shall remain in full force and effect as if this Plan had not been
amended or terminated, unless mutually agreed otherwise between the Optionee and
the Administrator, which agreement must be in writing and signed by the Optionee
and the Company.
14. Conditions Upon Issuance of Shares. Shares shall not be issued
----------------------------------
pursuant to the exercise of an Option unless the exercise of such Option and the
issuance and delivery of such Shares pursuant thereto shall comply with
Applicable Laws, and shall be further subject to the approval of counsel for the
Company with respect to such compliance.
As a condition to the exercise of an Option, the Company may require
the person exercising such Option to represent and warrant at the time of any
such exercise that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned relevant provisions of law.
-10-
<PAGE>
15. Reservation of Shares. The Company, during the term of this Plan,
---------------------
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
The inability of the Company to obtain authority from any regulatory
body having jurisdiction, which authority is deemed by the Company's counsel to
be necessary to the lawful issuance and sale of any Shares hereunder, shall
relieve the Company of any liability in respect of the failure to issue or sell
such Shares as to which such requisite authority shall not have been obtained.
16. Agreements. Options shall be evidenced by written agreements in such
----------
form as the Administrator shall approve from time to time.
17. Shareholder Approval. Continuance of the Plan shall be subject to
--------------------
approval by the shareholders of the Company within twelve (12) months before or
after the date the Plan is adopted. Such shareholder approval shall be obtained
in the degree and manner required under applicable state and federal law and the
rules of any stock exchange upon which the Common Stock is listed.
-11-
<PAGE>
SPLASH TECHNOLOGY HOLDINGS, INC.
1996 STOCK OPTION PLAN
STOCK OPTION AGREEMENT -- EARLY EXERCISE
Unless otherwise defined herein, the terms defined in the Plan shall have
the same defined meanings in this Stock Option Agreement.
I. NOTICE OF STOCK OPTION GRANT
----------------------------
1
Address:
- --------------------------------------
- --------------------------------------
You have been granted an option to purchase Common Stock of the Company,
subject to the terms and conditions of the Plan and this Stock Option Agreement,
as follows:
Date of Grant 2
Vesting Commencement Date 3
Exercise Price per Share $0.50
Total Number of Shares Granted 4
Total Exercise Price $5
Type of Option: X Incentive Stock Option
-----
Nonstatutory Stock Option
Term/Expiration Date: 10 years/2/21/2006
Exercise and Vesting Schedule:
-----------------------------
This Option is exercisable immediately, in whole or in part, conditioned
upon Optionee entering into a Restricted Stock Purchase Agreement with respect
to any unvested Option Shares. The Shares subject to this Option shall vest
and/or be released from the Company's repurchase option, as set forth in the
Restricted Stock Purchase Agreement, according to the following schedule:
<PAGE>
25% of the Shares subject to the Option shall vest twelve months after the
Vesting Commencement Date and the balance of the Shares subject to the Option
vesting ratably at the end of each monthly period thereafter over a period of
thirty-six months.
Termination Period:
------------------
This Option may be exercised, to the extent vested, for three months after
termination of Optionee's employment or consulting relationship, or such longer
period as may be applicable upon death or disability of Optionee as provided in
the Plan, but in no event later than the Term/Expiration Date as provided above.
II. AGREEMENT
---------
1. Grant of Option. Splash Technology Holdings, Inc. (the "Company"),
---------------
hereby grants to the Optionee named in the Notice of Grant (the "Optionee"), an
option (the "Option") to purchase the total number of shares of Common Stock
(the "Shares") set forth in the Notice of Grant, at the exercise price per share
set forth in the Notice of Grant (the "Exercise Price") subject to the terms,
definitions and provisions of the 1996 Stock Option Plan (the "Plan") adopted by
the Company, which is incorporated herein by reference.
If designated in the Notice of Grant as an Incentive Stock Option
("ISO"), this Option is intended to qualify as an ISO as defined in Section 422
of the Code. However, if this Option is intended to be an ISO, to the extent
that it exceeds the $100,000 rule of Code Section 422(d) it shall be treated as
a Nonstatutory Stock Option ("NSO").
2. Exercise of Option. This Option shall be exercisable during its term
------------------
in accordance with the provisions of Section 9 of the Plan as follows:
(i) Right to Exercise.
-----------------
(a) Subject to subsections 2(i)(b) through 2(i)(e) below, this
Option shall be exercisable cumulatively according to the vesting schedule set
out in the Notice of Grant. Alternatively, at the election of the Optionee, this
option may be exercised in whole or in part at any time as to Shares which have
not yet vested. For purposes of this Stock Option Agreement, Shares subject to
Option shall vest based on continued employment of Optionee with the Company.
Vested Shares shall not be subject to the Company's repurchase right (as set
forth in the Restricted Stock Purchase Agreement, attached hereto as Exhibit C-
1).
(b) As a condition to exercising this Option for unvested Shares,
the Optionee shall execute the Restricted Stock Purchase Agreement.
(c) This Option may not be exercised for a fraction of a Share.
-2-
<PAGE>
(d) In the event of Optionee's death, disability or other
termination of the employment or consulting relationship, the exercisability of
the Option is governed by Sections 6, 7 and 8 below, subject to the limitation
contained in subsection 2(i)(e).
(e) In no event may this Option be exercised after the date of
expiration of the term of this Option as set forth in the Notice of Grant.
(ii) Method of Exercise. This Option shall be exercisable by written
------------------
notice (in the form attached as Exhibit A) which shall state the election to
exercise the Option, the number of Shares in respect of which the Option is
being exercised, and such other representations and agreements with respect to
such shares of Common Stock as may be required by the Company pursuant to the
provisions of the Plan. Such written notice shall be signed by the Optionee
and, together with an executed copy of the Restricted Stock Purchase Agreement,
if applicable, shall be delivered in person or by certified mail to the
Secretary of the Company. The written notice and Restricted Stock Purchase
Agreement shall be accompanied by payment of the Exercise Price. This Option
shall be deemed to be exercised upon receipt by the Company of such written
notice and Restricted Stock Purchase Agreement accompanied by the Exercise
Price.
No Shares shall be issued pursuant to the exercise of an Option unless
such issuance and such exercise shall comply with all relevant provisions of law
and the requirements of any stock exchange upon which the Shares may then be
listed. Assuming such compliance, for income tax purposes the Shares shall be
considered transferred to the Optionee on the date on which the Option is
exercised with respect to such Shares.
3. Optionee's Representations. In the event the Shares purchasable
--------------------------
pursuant to the exercise of this Option have not been registered under the
Securities Act of 1933, as amended, at the time this Option is exercised,
Optionee shall, if required by the Company, concurrently with the exercise of
all or any portion of this Option, deliver to the Company his or her Investment
Representation Statement in the form attached hereto as Exhibit B, and shall
read the applicable rules of the Commissioner of Corporations attached to such
Investment Representation Statement.
4. Lock-Up Period. Optionee hereby agrees that if so requested by the
--------------
Company or any representative of the underwriters (the "Managing Underwriter")
in connection with any registration of the offering of any securities of the
Company under the Securities Act, Optionee shall not sell or otherwise transfer
any Shares or other securities of the Company during the 180-day period (or such
longer period as may be requested in writing by the Managing Underwriter and
agreed to in writing by the Company) (the "Market Standoff Period") following
the effective date of a registration statement of the Company filed under the
Securities Act; provided, however, that such restriction shall apply only to
the first registration statement of the Company to become effective under the
Securities Act that includes securities to be sold on behalf of the Company to
the public in an underwritten public offering under the Securities Act. The
Company may impose stop-transfer instructions with respect to securities subject
to the foregoing restrictions until the end of such Market Standoff Period.
-3-
<PAGE>
5. Method of Payment. Payment of the Exercise Price shall be by any of
-----------------
the following, or a combination thereof, at the election of the Optionee:
(i) cash; or
(ii) check; or
(iii) surrender of other shares of Common Stock of the Company which
(A) in the case of Shares acquired pursuant to the exercise of a Company option,
have been owned by the Optionee for more than six (6) months on the date of
surrender, and (B) have a Fair Market Value on the date of surrender equal to
the Exercise Price of the Shares as to which the Option is being exercised; or
(iv) to the extent permitted by the Administrator, delivery of a
properly executed exercise notice together with such other documentation as the
Administrator and the broker, if applicable, shall require to effect an exercise
of the Option and delivery to the Company of the sale or loan proceeds required
to pay the Exercise Price.
6. Restrictions on Exercise. This Option may not be exercised until such
------------------------
time as the Plan has been approved by the stockholders of the Company, or if the
issuance of such Shares upon such exercise or the method of payment of
consideration for such shares would constitute a violation of any applicable
federal or state securities or other law or regulation, including any rule under
Part 207 of Title 12 of the Code of Federal Regulations ("Regulation G") as
promulgated by the Federal Reserve Board. As a condition to the exercise of
this Option, the Company may require Optionee to make any representation and
warranty to the Company as may be required by any applicable law or regulation.
7. Termination of Relationship. In the event an Optionee's Continuous
---------------------------
Status as an Employee or Consultant terminates, Optionee may, to the extent the
Option was vested at the date of such termination (the "Termination Date"),
exercise this Option during the Termination Period set out in the Notice of
Grant. To the extent that Optionee was not vested in this Option at the date of
such termination, or if Optionee does not exercise this Option within the time
specified herein, the Option shall terminate.
8. Disability of Optionee. Notwithstanding the provisions of Section 6
----------------------
above, in the event of termination of an Optionee's consulting relationship or
Continuous Status as an Employee as a result of his or her disability, Optionee
may, but only within twelve (12) months from the date of such termination (and
in no event later than the expiration date of the term of such Option as set
forth in the Stock Option Agreement), exercise the Option to the extent the
Option was vested at the date of such termination; provided, however, that if
such disability is not a "disability" as such term is defined in Section
22(e)(3) of the Code, in the case of an ISO such ISO shall cease to be treated
as an ISO and shall be treated for tax purposes as an NSO on the ninety-first
(91st) day following such termination. To the extent that Optionee is not
vested in the Option at the date of termination, or if
-4-
<PAGE>
Optionee does not exercise such Option within the time specified herein, the
Option shall terminate, and the Shares covered by such Option shall revert to
the Plan.
9. Death of Optionee. In the event of termination of Optionee's
-----------------
Continuous Status as an Employee or Consultant as a result of the death of
Optionee, the Option may be exercised at any time within twelve (12) months
following the date of death (but in no event later than the date of expiration
of the term of this Option as set forth in Section 10 below), by Optionee's
estate or by a person who acquires the right to exercise the Option by bequest
or inheritance, but only to the extent the Option was vested at the date of
death. To the extent that Optionee is not vested in the Option at the date of
death, or if the Option is not exercised within the time specified herein, the
Option shall terminate, and the Shares covered by such Option shall revert to
the Plan.
10. Non-Transferability of Option. This Option may not be transferred in
-----------------------------
any manner otherwise than by will or by the laws of descent or distribution and
may be exercised during the lifetime of Optionee only by Optionee. The terms of
this Option shall be binding upon the executors, administrators, heirs,
successors and assigns of the Optionee.
11. Term of Option. This Option may be exercised only within the term set
--------------
out in the Notice of Grant, and may be exercised during such term only in
accordance with the Plan and the terms of this Option. The limitations set out
in Section 7 of the Plan regarding Options designated as ISOs and Options
granted to more than ten percent (10%) stockholders shall apply to this Option.
12. Tax Consequences. Set forth below is a brief summary as of the date
----------------
of this Option of some of the federal and state tax consequences of exercise of
this Option and disposition of the Shares. THIS SUMMARY IS NECESSARILY
INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. OPTIONEE
SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE
SHARES.
(i) Exercise of ISO. If this Option qualifies as an ISO, there will
---------------
be no regular federal income tax liability or state income tax liability upon
the exercise of the Option, although the excess, if any, of the Fair Market
Value of the Shares on the date of exercise over the Exercise Price will be
treated as an adjustment to the alternative minimum tax for federal tax purposes
and may subject the Optionee to the alternative minimum tax in the year of
exercise.
(ii) Exercise of ISO Following Disability. If the Optionee's
------------------------------------
Continuous Status as an Employee or Consultant terminates as a result of
disability that is not total and permanent disability as defined in Section
22(e)(3) of the Code, to the extent permitted on the date of termination, the
Optionee must exercise an ISO within 90 days of such termination for the ISO to
be qualified as an ISO.
(iii) Exercise of NSO. There may be a regular federal income tax
---------------
liability and state income tax liability upon the exercise of an NSO. The
Optionee will be treated as having received compensation income (taxable at
ordinary income tax rates) equal to the excess, if any, of the Fair
-5-
<PAGE>
Market Value of the Shares on the date of exercise over the Exercise Price. If
Optionee is an Employee, the Company will be required to withhold from
Optionee's compensation or collect from Optionee and pay to the applicable
taxing authorities an amount equal to a percentage of this compensation income
at the time of exercise. If the Optionee is subject to Section 16 of the
Securities Act of 1934, as amended, the date of income recognition may be
deferred for up to six months.
(iv) Disposition of Shares. In the case of an NSO, if Shares are
---------------------
held for at least one year, any gain realized on disposition of the Shares will
be treated as long-term capital gain for federal and state income tax purposes.
In the case of an ISO, if Shares transferred pursuant to the Option are held for
at least one year after exercise and are disposed of at least two years after
the Date of Grant, any gain realized on disposition of the Shares will also be
treated as long-term capital gain for federal and state income tax purposes. If
Shares purchased under an ISO are disposed of within such one-year period or
within two years after the Date of Grant, any gain realized on such disposition
will be treated as compensation income (taxable at ordinary income rates) to the
extent of the difference between the Exercise Price and the lesser of (1) the
Fair Market Value of the Shares on the date of exercise, or (2) the sale price
of the Shares.
(v) Notice of Disqualifying Disposition of ISO Shares. If the
-------------------------------------------------
Option granted to Optionee herein is an ISO, and if Optionee sells or otherwise
disposes of any of the Shares acquired pursuant to the ISO on or before the
later of (1) the date two years after the Date of Grant, or (2) the date one
year after the date of exercise, the Optionee shall immediately notify the
Company in writing of such disposition. Optionee agrees that Optionee may be
subject to income tax withholding by the Company on the compensation income
recognized by the Optionee.
(vi) Section 83(b) Election for Unvested Shares Purchased Pursuant to
----------------------------------------------------------------
Nonqualified Stock Options. With respect to the exercise of a nonqualified
- --------------------------
stock option for unvested Shares, an election may be filed by the Optionee with
the Internal Revenue Service and, if necessary, the proper state taxing
authorities, within 30 days of the purchase of the Shares, electing pursuant to
--------------
Section 83(b) of the Code (and similar state tax provisions if applicable) to be
taxed currently on any difference between the purchase price of the Shares and
their Fair Market Value on the date of purchase. This will result in a
recognition of taxable income to the Optionee on the date of exercise, measured
by the excess, if any, of the fair market value of the Shares, at the time the
Option is exercised over the purchase price for the Shares. Absent such an
election, taxable income will be measured and recognized by Optionee at the time
or times on which the Company's Repurchase Option lapses. Optionee is strongly
encouraged to seek the advice of his or her own tax consultants in connection
with the purchase of the Shares and the advisability of filing of the Election
under Section 83(b) and similar tax provisions. A form of Election under
Section 83(b) is attached hereto as Exhibit C-5 for reference.
(vii) Section 83(b) Election for Unvested Shares Purchased Pursuant
-------------------------------------------------------------
to Incentive Stock Options. With respect to the exercise of an incentive stock
- --------------------------
option for unvested Shares, an election may be filed by the Optionee with the
Internal Revenue Service and, if necessary, the proper
<PAGE>
state taxing authorities, within 30 days of the purchase of the Shares, electing
--------------
pursuant to Section 83(b) of the Code (and similar state tax provisions if
applicable) to be taxed currently on any difference between the purchase price
of the Shares and their Fair Market Value on the date of purchase for
alternative minimum tax purposes. This will result in a recognition of income
to the Optionee on the date of exercise, for alternative minimum tax purposes,
measured by the excess, if any, of the fair market value of the Shares, at the
time the option is exercised, over the purchase price for the Shares. Absent
such an election, alternative minimum taxable income will be measured and
recognized by Optionee at the time or times on which the Company's Repurchase
Option lapses. Optionee is strongly encouraged to seek the advice of his or her
tax consultants in connection with the purchase of the Shares and the
advisability of filing of the Election under Section 83(b) and similar tax
provisions. A form of Election under Section 83(b) for alternative minimum tax
purposes is attached hereto as Exhibit C-6 for reference.
OPTIONEE ACKNOWLEDGES THAT IT IS OPTIONEE'S SOLE RESPONSIBILITY AND NOT
THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b), EVEN IF OPTIONEE
REQUESTS THE COMPANY OR ITS REPRESENTATIVE TO MAKE THIS FILING ON OPTIONEE'S
BEHALF.
Splash Technology Holdings, Inc.
By: ________________________________
OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO
THE OPTION HEREOF IS EARNED ONLY BY CONTINUING CONSULTANCY OR EMPLOYMENT AT THE
WILL OF THE COMPANY (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS
OPTION OR ACQUIRING SHARES HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES
THAT NOTHING IN THIS AGREEMENT, NOR IN THE COMPANY'S STOCK OPTION PLAN WHICH IS
INCORPORATED HEREIN BY REFERENCE, SHALL CONFER UPON OPTIONEE ANY RIGHT WITH
RESPECT TO CONTINUATION OF EMPLOYMENT OR CONSULTANCY BY THE COMPANY, NOR SHALL
IT INTERFERE IN ANY WAY WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO
TERMINATE OPTIONEE'S EMPLOYMENT OR CONSULTANCY AT ANY TIME, WITH OR WITHOUT
CAUSE.
Optionee acknowledges receipt of a copy of the Plan and represents that he
is familiar with the terms and provisions thereof, and hereby accepts this
Option subject to all of the terms and provisions thereof. Optionee has
reviewed the Plan and this Option in their entirety, has had an opportunity to
obtain the advice of counsel prior to executing this Option and fully
understands all provisions of the Option. Optionee hereby agrees to accept as
binding, conclusive and final all
<PAGE>
decisions or interpretations of the Administrator upon any questions arising
under the Plan or this Option. Optionee further agrees to notify the Company
upon any change in the residence address indicated below.
Dated: _____________________ _____________________________________
Optionee
Residence Address:
_____________________________________
_____________________________________
_____________________________________
<PAGE>
EXHIBIT A
---------
1996 STOCK OPTION PLAN
EXERCISE NOTICE
Splash Technology Holdings, Inc.
555 Del Rey Avenue
Sunnyvale, California 94086
1. Exercise of Option. Effective as of today, ___________, 19__, the
------------------
undersigned ("Optionee") hereby elects to exercise Optionee's option to purchase
_________ shares of the Common Stock (the "Shares") of Splash Technology
Holdings, Inc. (the "Company") under and pursuant to the 1996 Stock Option Plan,
as amended (the "Plan") and the [ ] Incentive [ ] Nonstatutory Stock Option
Agreement dated ________, 19___ (the "Option Agreement").
2. Representations of Optionee. Optionee acknowledges that Optionee has
---------------------------
received, read and understood the Plan and the Option Agreement and agrees to
abide by and be bound by their terms and conditions.
3. Rights as Stockholder. Until the stock certificate evidencing such
---------------------
Shares is issued (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company), no right to vote
or receive dividends or any other rights as a stockholder shall exist with
respect to the Optioned Stock, notwithstanding the exercise of the Option. The
Company shall issue (or cause to be issued) such stock certificate promptly
after the Option is exercised. No adjustment will be made for a dividend or
other right for which the record date is prior to the date the stock certificate
is issued, except as provided in Section 11 of the Plan.
Optionee shall enjoy rights as a stockholder until such time as
Optionee disposes of the Shares or the Company and/or its assignee(s) exercises
the Right of First Refusal hereunder. Upon such exercise, Optionee shall have
no further rights as a holder of the Shares so purchased except the right to
receive payment for the Shares so purchased in accordance with the provisions of
this Agreement, and Optionee shall forthwith cause the certificate(s) evidencing
the Shares so purchased to be surrendered to the Company for transfer or
cancellation.
4. Company's Right of First Refusal. Before any Shares held by Optionee
--------------------------------
or any transferee (either being sometimes referred to herein as the "Holder")
may be sold or otherwise transferred (including transfer by gift or operation of
law), the Company or its assignee(s) shall have a right of first refusal to
purchase the Shares on the terms and conditions set forth in this Section (the
"Right of First Refusal").
<PAGE>
(a) Notice of Proposed Transfer. The Holder of the Shares shall
---------------------------
deliver to the Company a written notice (the "Notice") stating: (i) the Holder's
bona fide intention to sell or otherwise transfer such Shares; (ii) the name of
each proposed purchaser or other transferee ("Proposed Transferee"); (iii) the
number of Shares to be transferred to each Proposed Transferee; and (iv) the
bona fide cash price or other consideration for which the Holder proposes to
transfer the Shares (the "Offered Price"), and the Holder shall offer the Shares
at the Offered Price to the Company or its assignee(s).
(b) Exercise of Right of First Refusal. At any time within thirty
----------------------------------
(30) days after receipt of the Notice, the Company and/or its assignee(s) may,
by giving written notice to the Holder, elect to purchase all, but not less than
all, of the Shares proposed to be transferred to any one or more of the Proposed
Transferees, at the purchase price determined in accordance with subsection (c)
below.
(c) Purchase Price. The purchase price ("Purchase Price") for the
--------------
Shares purchased by the Company or its assignee(s) under this Section shall be
the Offered Price. If the Offered Price includes consideration other than cash,
the cash equivalent value of the non-cash consideration shall be determined by
the Board of Directors of the Company in good faith.
(d) Payment. Payment of the Purchase Price shall be made, at the
-------
option of the Company or its assignee(s), in cash (by check), by cancellation of
all or a portion of any outstanding indebtedness of the Holder to the Company
(or, in the case of repurchase by an assignee, to the assignee), or by any
combination thereof within 30 days after receipt of the Notice or in the manner
and at the times set forth in the Notice.
(e) Holder's Right to Transfer. If all of the Shares proposed in the
--------------------------
Notice to be transferred to a given Proposed Transferee are not purchased by the
Company and/or its assignee(s) as provided in this Section, then the Holder may
sell or otherwise transfer such Shares to that Proposed Transferee at the
Offered Price or at a higher price, provided that such sale or other transfer is
consummated within 120 days after the date of the Notice and provided further
that any such sale or other transfer is effected in accordance with any
applicable securities laws and the Proposed Transferee agrees in writing that
the provisions of this Section shall continue to apply to the Shares in the
hands of such Proposed Transferee. If the Shares described in the Notice are
not transferred to the Proposed Transferee within such period, a new Notice
shall be given to the Company, and the Company and/or its assignees shall again
be offered the Right of First Refusal before any Shares held by the Holder may
be sold or otherwise transferred.
(f) Exception for Certain Family Transfers. Anything to the contrary
--------------------------------------
contained in this Section notwithstanding, the transfer of any or all of the
Shares during the Optionee's lifetime or on the Optionee's death by will or
intestacy to the Optionee's immediate family or a trust for the benefit of the
Optionee's immediate family shall be exempt from the provisions of this Section.
"Immediate Family" as used herein shall mean spouse, lineal descendant or
antecedent, father, mother, brother or sister. In such case, the transferee or
other recipient shall receive and hold the Shares so
<PAGE>
transferred subject to the provisions of this Section, and there shall
be no further transfer of such Shares except in accordance with the terms of
this Section.
(g) Termination of Right of First Refusal. The Right of First Refusal
-------------------------------------
shall terminate as to any Shares 90 days after the first sale of Common Stock of
the Company to the general public pursuant to a registration statement filed
with and declared effective by the Securities and Exchange Commission under the
Securities Act of 1933, as amended.
5. Tax Consultation. Optionee understands that Optionee may suffer
----------------
adverse tax consequences as a result of Optionee's purchase or disposition of
the Shares. Optionee represents that Optionee has consulted with any tax
consultants Optionee deems advisable in connection with the purchase or
disposition of the Shares and that Optionee is not relying on the Company for
any tax advice.
6. Restrictive Legends and Stop-Transfer Orders.
--------------------------------------------
(a) Legends. Optionee understands and agrees that the Company shall
-------
cause the legends set forth below or legends substantially equivalent thereto,
to be placed upon any certificate(s) evidencing ownership of the Shares together
with any other legends that may be required by state or federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED
UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION
OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF
THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR
HYPOTHECATION IS IN COMPLIANCE THEREWITH.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER AND RIGHT OF FIRST REFUSAL OPTIONS HELD BY
THE ISSUER OR ITS ASSIGNEE(S) AS SET FORTH IN THE EXERCISE NOTICE
BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF
WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH
TRANSFER RESTRICTIONS AND RIGHT OF FIRST REFUSAL ARE BINDING ON
TRANSFEREES OF THESE SHARES.
IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS SECURITY, OR
ANY INTEREST THEREIN, OR TO
<PAGE>
RECEIVE ANY CONSIDERATION THEREFOR, WITHOUT THE PRIOR WRITTEN CONSENT
OF THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA, EXCEPT
AS PERMITTED IN THE COMMISSIONER'S RULES.
Optionee understands that transfer of the Shares may be restricted by
Section 260.141.11 of the Rules of the California Corporations Commissioner, a
copy of which is attached to Exhibit B, the Investment Representation Statement.
(b) Stop-Transfer Notices. Optionee agrees that, in order to ensure
---------------------
compliance with the restrictions referred to herein, the Company may issue
appropriate "stop transfer" instruc tions to its transfer agent, if any, and
that, if the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records.
(c) Refusal to Transfer. The Company shall not be required (i) to
-------------------
transfer on its books any Shares that have been sold or otherwise transferred in
violation of any of the provisions of this Agreement or (ii) to treat as owner
of such Shares or to accord the right to vote or pay dividends to any purchaser
or other transferee to whom such Shares shall have been so transferred.
7. Successors and Assigns. The Company may assign any of its rights
----------------------
under this Agreement to single or multiple assignees, and this Agreement shall
inure to the benefit of the successors and assigns of the Company. Subject to
the restrictions on transfer herein set forth, this Agreement shall be binding
upon Optionee and his or her heirs, executors, administrators, successors and
assigns.
8. Interpretation. Any dispute regarding the interpretation of this
--------------
Agreement shall be submitted by Optionee or by the Company forthwith to the
Company's Board of Directors or the committee thereof that administers the Plan,
which shall review such dispute at its next regular meeting. The resolution of
such a dispute by the Board or committee shall be final and binding on the
Company and on Optionee.
9. Governing Law; Severability. This Agreement shall be governed by and
---------------------------
construed in accordance with the laws of the State of California excluding that
body of law pertaining to conflicts of law. Should any provision of this
Agreement be determined by a court of law to be illegal or unenforceable, the
other provisions shall nevertheless remain effective and shall remain
enforceable.
10. Notices. Any notice required or permitted hereunder shall be given in
-------
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States mail by certified mail, with postage and fees
prepaid, addressed to the other party at its address as shown below beneath its
signature, or to such other address as such party may designate in writing from
time to time to the other party.
<PAGE>
11. Further Instruments. The parties agree to execute such further
-------------------
instruments and to take such further action as may be reasonably necessary to
carry out the purposes and intent of this Agreement.
12. Delivery of Payment. Optionee herewith delivers to the Company the
-------------------
full Exercise Price for the Shares.
13. Entire Agreement. The Plan and Notice of Grant/Option Agreement are
----------------
incorporated herein by reference. This Agreement, the Plan, the Option
Agreement, the Restricted Stock Purchase Agreement, and the Investment
Representation Statement constitute the entire agreement of the parties and
supersede in their entirety all prior undertakings and agreements of the Company
and Optionee with respect to the subject matter hereof.
Submitted by: Accepted by:
OPTIONEE: SPLASH TECHNOLOGY HOLDINGS, INC.
By: _______________________________
Its: ______________________________
__________________________________
(Signature)
Address:
- -------
__________________________________
__________________________________
<PAGE>
EXHIBIT B
---------
INVESTMENT REPRESENTATION STATEMENT
OPTIONEE :
COMPANY : SPLASH TECHNOLOGY HOLDINGS, INC.
SECURITY : COMMON STOCK
AMOUNT :
DATE :
In connection with the purchase of the above-listed Securities, the undersigned
Optionee represents to the Company the following:
(a) Optionee is aware of the Company's business affairs and financial
condition and has acquired sufficient information about the Company to reach an
informed and knowledgeable decision to acquire the Securities. Optionee is
acquiring these Securities for investment for Optionee's own account only and
not with a view to, or for resale in connection with, any "distribution" thereof
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act").
(b) Optionee acknowledges and understands that the Securities
constitute "restricted securities" under the Securities Act and have not been
registered under the Securities Act in reliance upon a specific exemption
therefrom, which exemption depends upon, among other things, the bona fide
nature of Optionee's investment intent as expressed herein. In this connection,
Optionee understands that, in the view of the Securities and Exchange
Commission, the statutory basis for such exemption may be unavailable if
Optionee's representation was predicated solely upon a present intention to hold
these Securities for the minimum capital gains period specified under tax
statutes, for a deferred sale, for or until an increase or decrease in the
market price of the Securities, or for a period of one year or any other fixed
period in the future. Optionee further understands that the Securities must be
held indefinitely unless they are subsequently registered under the Securities
Act or an exemption from such registration is available. Optionee further
acknowledges and understands that the Company is under no obligation to register
the Securities. Optionee understands that the certificate evidencing the
Securities will be imprinted with a legend which prohibits the transfer of the
Securities unless they are registered or such registration is not required in
the opinion of counsel satisfactory to the Company, a legend prohibiting their
transfer without the consent of the Commissioner of Corporations of the State of
California and any other legend required under applicable state securities laws.
(c) Optionee is familiar with the provisions of Rule 701 and Rule 144,
each promulgated under the Securities Act, which, in substance, permit limited
public resale of "restricted securities" acquired, directly or indirectly from
the issuer thereof, in a non-public offering subject to
<PAGE>
the satisfaction of certain conditions. Rule 701 provides that if the issuer
qualifies under Rule 701 at the time of the grant of the Option to the Optionee,
the exercise will be exempt from registration under the Securities Act. In the
event the Company becomes subject to the reporting requirements of Section 13 or
15(d) of the Securities Exchange Act of 1934, ninety (90) days thereafter (or
such longer period as any market stand-off agreement may require) the Securities
exempt under Rule 701 may be resold, subject to the satisfaction of certain of
the conditions specified by Rule 144, including: (1) the resale being made
through a broker in an unsolicited "broker's transaction" or in transactions
directly with a market maker (as said term is defined under the Securities
Exchange Act of 1934); and, in the case of an affiliate, (2) the availability of
certain public information about the Company, (3) the amount of Securities being
sold during any three month period not exceeding the limitations specified in
Rule 144(e), and (4) the timely filing of a Form 144, if applicable.
In the event that the Company does not qualify under Rule 701 at the time
of grant of the Option, then the Securities may be resold in certain limited
circumstances subject to the provisions of Rule 144, which requires the resale
to occur not less than two years after the later of the date the Securities were
sold by the Company or the date the Securities were sold by an affiliate of the
Company, within the meaning of Rule 144; and, in the case of acquisition of the
Securities by an affiliate, or by a non-affiliate who subsequently holds the
Securities less than three years, the satisfaction of the conditions set forth
in sections (1), (2), (3) and (4) of the paragraph immediately above.
(d) Optionee further understands that in the event all of the
applicable require ments of Rule 701 or 144 are not satisfied, registration
under the Securities Act, compliance with Regulation A, or some other
registration exemption will be required; and that, notwithstanding the fact that
Rules 144 and 701 are not exclusive, the Staff of the Securities and Exchange
Commission has expressed its opinion that persons proposing to sell private
placement securities other than in a registered offering and otherwise than
pursuant to Rules 144 or 701 will have a substantial burden of proof in
establishing that an exemption from registration is available for such offers or
sales, and that such persons and their respective brokers who participate in
such transactions do so at their own risk. Optionee understands that no
assurances can be given that any such other registration exemption will be
available in such event.
(e) Optionee understands that the certificate evidencing the
Securities will be imprinted with a legend which prohibits the transfer of the
Securities without the consent of the Commissioner of Corporations of
California. Optionee has read the applicable Commissioner's Rules with respect
to such restriction, a copy of which is attached.
Signature of Optionee:
__________________________________
Date:_______________________, 19__
<PAGE>
ATTACHMENT 1
STATE OF CALIFORNIA - CALIFORNIA ADMINISTRATIVE CODE
----------------------------------------------------
Title 10. Investment - Chapter 3. Commissioner of Corporations
260.141.11: Restriction on Transfer. (a) The issuer of any security upon
---------- -----------------------
which a restriction on transfer has been imposed pursuant to Sections 260.102.6,
260.141.10 or 260.534 shall cause a copy of this section to be delivered to each
issuee or transferee of such security at the time the certificate evidencing the
security is delivered to the issuee or transferee.
(b) It is unlawful for the holder of any such security to consummate a sale
or transfer of such security, or any interest therein, without the prior written
consent of the Commissioner (until this condition is removed pursuant to Section
260.141.12 of these rules), except:
(1) to the issuer;
(2) pursuant to the order or process of any court;
(3) to any person described in Subdivision (i) of Section 25102 of the
Code or Section 260.105.14 of these rules;
(4) to the transferor's ancestors, descendants or spouse, or any custodian
or trustee for the account of the transferor or the transferor's ancestors,
descendants, or spouse; or to a transferee by a trustee or custodian for the
account of the transferee or the transferee's ancestors, descendants or
spouse;
(5) to holders of securities of the same class of the same issuer;
(6) by way of gift or donation inter vivos or on death;
(7) by or through a broker-dealer licensed under the Code (either acting
as such or as a finder) to a resident of a foreign state, territory or
country who is neither domiciled in this state to the knowledge of the
broker-dealer, nor actually present in this state if the sale of such
securities is not in violation of any securities law of the foreign state,
territory or country concerned;
(8) to a broker-dealer licensed under the Code in a principal
transaction, or as an underwriter or member of an underwriting syndicate or
selling group;
(9) if the interest sold or transferred is a pledge or other lien given
by the purchaser to the seller upon a sale of the security for which the
Commissioner's written consent is obtained or under this rule not required;
(10) by way of a sale qualified under Sections 25111, 25112, 25113 or
25121 of the Code, of the securities to be transferred, provided that no
order under Section 25140 or subdivision (a) of Section 25143 is in effect
with respect to such qualification;
(11) by a corporation to a wholly owned subsidiary of such corporation,
or by a wholly owned subsidiary of a corporation to such corporation;
(12) by way of an exchange qualified under Section 25111, 25112 or 25113
of the Code, provided that no order under Section 25140 or subdivision (a) of
Section 25143 is in effect with respect to such qualification;
(13) between residents of foreign states, territories or countries who are
neither domiciled nor actually present in this state;
(14) to the State Controller pursuant to the Unclaimed Property Law or
to the administrator of the unclaimed property law of another state; or
(15) by the State Controller pursuant to the Unclaimed Property Law or by
the administrator of the unclaimed property law of another state if, in
either such case, such person (i) discloses to potential purchasers at the
sale that transfer of the securities is restricted under this rule, (ii)
delivers to each purchaser a copy of this rule, and (iii) advises the
Commissioner of the name of each purchaser;
(16) by a trustee to a successor trustee when such transfer does not
involve a change in the beneficial ownership of the securities;
(17) by way of an offer and sale of outstanding securities in an
issuer transaction that is subject to the qualification requirement of
Section 25110 of the Code but exempt from that qualification requirement by
subdivision (f) of Section 25102; provided that any such transfer is on the
condition that any certificate evidencing the security issued to such
transferee shall contain the legend required by this section.
(c) The certificates representing all such securities subject to such a
restriction on transfer, whether upon initial issuance or upon any transfer
thereof, shall bear on their face a legend, prominently stamped or printed
thereon in capital letters of not less than 10-point size, reading as follows:
"IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS SECURITY, OR ANY
INTEREST THEREIN, OR TO RECEIVE ANY CONSIDERATION THEREFOR, WITHOUT THE
PRIOR WRITTEN CONSENT OF THE COMMISSIONER OF CORPORATIONS OF THE STATE OF
CALIFORNIA, EXCEPT AS PERMITTED IN THE COMMISSIONER'S RULES."
<PAGE>
EXHIBIT C-1
-----------
1996 STOCK OPTION PLAN
RESTRICTED STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made between ____________________________________ (the
"Purchaser") and Splash Technology Holdings, Inc. (the "Company") as of
__________________, 199__.
RECITALS
--------
(1) Pursuant to the exercise of the stock option granted to Purchaser under
the Company's 1996 Stock Option Plan and pursuant to the Stock Option Agreement
(the "Option Agreement") dated ___________ by and between the Company and
Purchaser with respect to such grant, which Option Agreement is hereby
incorporated by reference, Purchaser has elected to purchase _________ of those
shares which have not become vested under the vesting schedule set forth in the
Option Agreement ("Unvested Shares"). The Unvested Shares and the shares
subject to the Option Agreement which have become vested are sometimes
collectively referred to herein as the "Shares".
(2) As required by the Option Agreement, as a condition to Purchaser's
election to exercise the option, Purchaser must execute this Restricted Stock
Purchase Agreement, which sets forth the rights and obligations of the parties
with respect to Shares acquired upon exercise of the Option.
1. Repurchase Option.
-----------------
(a) If Purchaser's employment or consulting relationship with the
Company is terminated for any reason, including for cause, death, and
disability, the Company shall have the right and option to purchase from
Purchaser, or Purchaser's personal representative, as the case may be, all of
the Purchaser's Unvested Shares as of the date of such termination at the price
paid by the Purchaser for such Shares (the "Repurchase Option").
(b) Upon the occurrence of a termination, the Company may exercise its
Repurchase Option by delivering personally or by registered mail, to Purchaser
(or his transferee or legal representative, as the case may be), within ninety
(90) days of the termination, a notice in writing indicating the Company's
intention to exercise the Repurchase Option and setting forth a date for closing
not later than thirty (30) days from the mailing of such notice. The closing
shall take place at the Company's office. At the closing, the holder of the
certificates for the Unvested Shares being transferred shall deliver the stock
certificate or certificates evidencing the Unvested Shares, and the Company
shall deliver the purchase price therefor.
(c) At its option, the Company may elect to make payment for the
Unvested Shares to a bank selected by the Company. The Company shall avail
itself of this option by a notice
<PAGE>
in writing to Purchaser stating the name and address of the bank, date of
closing, and waiving the closing at the Company's office.
(d) If the Company does not elect to exercise the Repurchase Option
conferred above by giving the requisite notice within ninety (90) days following
the termination, the Repurchase Option shall terminate.
2. Transferability of the Shares; Escrow.
-------------------------------------
(a) Purchaser hereby authorizes and directs the secretary of the
Company, or such other person designated by the Company, to transfer the
Unvested Shares as to which the Repurchase Option has been exercised from
Purchaser to the Company.
(b) To insure the availability for delivery of Purchaser's Unvested
Shares upon repurchase by the Company pursuant to the Repurchase Option under
Section 1, Purchaser hereby appoints the secretary, or any other person
designated by the Company as escrow agent, as its attorney-in-fact to sell,
assign and transfer unto the Company, such Unvested Shares, if any, repurchased
by the Company pursuant to the Repurchase Option and shall, upon execution of
this Agreement, deliver and deposit with the secretary of the Company, or such
other person designated by the Company, the share certificates representing the
Unvested Shares, together with the stock assignment duly endorsed in blank,
attached hereto as Exhibit C-2. The Unvested Shares and stock assignment shall
be held by the secretary in escrow, pursuant to the Joint Escrow Instructions of
the Company and Purchaser attached as Exhibit C-3 hereto, until the Company
exercises its purchase right as provided in Section 1, until such Unvested
Shares are vested, or until such time as this Agreement no longer is in effect.
As a further condition to the Company's obligations under this Agreement, the
spouse of the Purchaser, if any, shall execute and deliver to the Company the
Consent of Spouse attached hereto as Exhibit C-4. Upon vesting of the Unvested
Shares, the escrow agent shall promptly deliver to the Purchaser the certificate
or certificates representing such Shares in the escrow agent's possession
belonging to the Purchaser, and the escrow agent shall be discharged of all
further obligations hereunder; provided, however, that the escrow agent shall
nevertheless retain such certificate or certificates as escrow agent if so
required pursuant to other restrictions imposed pursuant to this Agreement.
(c) The Company, or its designee, shall not be liable for any act it
may do or omit to do with respect to holding the Shares in escrow and while
acting in good faith and in the exercise of its judgment.
(d) Transfer or sale of the Shares is subject to restrictions on
transfer imposed by any applicable state and federal securities laws. Any
transferee shall hold such Shares subject to all the provisions hereof and the
Exercise Notice executed by the Purchaser with respect to any Unvested Shares
purchased by Purchaser and shall acknowledge the same by signing a copy of this
Agreement.
<PAGE>
3. Ownership, Voting Rights, Duties. This Agreement shall not affect in
--------------------------------
any way the ownership, voting rights or other rights or duties of Purchaser,
except as specifically provided herein.
4. Legends. The share certificate evidencing the Shares issued hereunder
-------
shall be endorsed with the following legend (in addition to any legend required
under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS UPON TRANSFER AND RIGHTS OF REPURCHASE AS SET FORTH IN AN AGREEMENT
BETWEEN THE COMPANY AND THE STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE COMPANY.
5. Adjustment for Stock Split. All references to the number of Shares
--------------------------
and the purchase price of the Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other change in the
Shares which may be made by the Company after the date of this Agreement.
6. Notices. Notices required hereunder shall be given in person or by
-------
registered mail to the address of Purchaser shown on the records of the Company,
and to the Company at their respective principal executive offices.
7. Survival of Terms. This Agreement shall apply to and bind Purchaser
-----------------
and the Company and their respective permitted assignees and transferees, heirs,
legatees, executors, administrators and legal successors.
8. Section 83(b) Elections.
-----------------------
(a) Election for Unvested Shares Purchased Pursuant to Nonqualified
---------------------------------------------------------------
Stock Options. Purchaser hereby acknowledges that he or she has been informed
- -------------
that, with respect to the exercise of a nonqualified stock option for Unvested
Shares, that unless an election is filed by the Purchaser with the Internal
Revenue Service and, if necessary, the proper state taxing authorities, within
------
30 days of the purchase of the Shares, electing pursuant to Section 83(b) of the
- -------
Code (and similar state tax provisions if applicable) to be taxed currently on
any difference between the purchase price of the Shares and their Fair Market
Value on the date of purchase, there will be a recognition of taxable income to
the Optionee, measured by the excess, if any, of the fair market value of the
Shares, at the time the Company's Repurchase Option lapses over the purchase
price for the Shares. Optionee represents that Optionee has consulted any tax
consultant(s) Optionee deems advisable in connection with the purchase of the
Shares or the filing of the Election under Section 83(b) and similar tax
provisions. A form of Election under Section 83(b) is attached hereto as Exhibit
C-5 for reference.
(b) Election for Unvested Shares Purchased Pursuant to Incentive Stock
------------------------------------------------------------------
Options. Purchaser hereby acknowledges that he or she has been informed that,
- -------
with respect to the exercise of an incentive stock option for Unvested Shares,
that unless an election is filed by the Purchaser with
<PAGE>
the Internal Revenue Service and, if necessary, the proper state taxing
authorities, within 30 days of the purchase of the Shares, electing pursuant to
--------------
Section 83(b) of the Code (and similar state tax provisions if applicable) to be
taxed currently on any difference between the purchase price of the Shares and
their Fair Market Value on the date of purchase, there will be a recognition of
income to the Optionee, for alternative minimum tax purposes, measured by the
excess, if any, of the fair market value of the Shares, at the time the
Company's Repurchase Option lapses over the purchase price for the Shares.
Optionee represents that Optionee has consulted any tax consultant(s) Optionee
deems advisable in connection with the purchase of the Shares or the filing of
the Election under Section 83(b) and similar tax provisions. A form of Election
under Section 83(b) for alternative minimum tax purposes is attached hereto as
Exhibit C-6 for reference.
PURCHASER ACKNOWLEDGES THAT IT IS PURCHASER'S SOLE RESPONSIBILITY AND NOT
THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b), EVEN IF PURCHASER
REQUESTS THE COMPANY OR ITS REPRESENTATIVE TO MAKE THIS FILING ON PURCHASER'S
BEHALF.
9. Representations. Purchaser has reviewed with his own tax advisors the
---------------
federal, state, local and foreign tax consequences of this investment and the
transactions contemplated by this Agreement. Purchaser is relying solely on
such advisors and not on any statements or represen tations of the Company or
any of its agents. Purchaser understands that he (and not the Company) shall be
responsible for his own tax liability that may arise as a result of this
investment or the transactions contemplated by this Agreement.
10. Governing Law. This Agreement shall be governed by and construed and
-------------
enforced in accordance with applicable state laws.
Purchaser represents that he has read this Agreement and is familiar with
its terms and provisions. Purchaser hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Board upon any
questions arising under this Agreement.
<PAGE>
IN WITNESS WHEREOF, this Agreement is deemed made as of the date first set
forth above.
"COMPANY"
SPLASH TECHNOLOGY HOLDINGS, INC.
By: ____________________________________
Title: _________________________________
"PURCHASER"
________________________________________
Address:
Soc. Sec. No.: _________________________
<PAGE>
EXHIBIT C-2
-----------
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED I, __________________________, hereby sell, assign and
transfer unto __________________________________________________ (__________)
shares of the Common Stock of Splash Technology Holdings, Inc. standing in my
name of the books of said corporation represented by Certificate No. _____
herewith and do hereby irrevocably constitute and appoint
_______________________ to transfer the said stock on the books of the within
named corporation with full power of substitution in the premises.
This Stock Assignment may be used only in accordance with the Restricted
Stock Purchase Agreement between________________________ and the undersigned
dated ______________, 19__.
Dated: _______________, 19___
Signature:______________________________
INSTRUCTIONS: Please do not fill in any blanks other than the signature line.
The purpose of this assignment is to enable the Company to exercise its
"repurchase option," as set forth in the Agreement, without requiring additional
signatures on the part of the Purchaser.
<PAGE>
EXHIBIT C-3
-----------
JOINT ESCROW INSTRUCTIONS
-------------------------
_____________, 19__
Corporate Secretary
Splash Technology Holdings, Inc.
555 Del Rey Avenue
Sunnyvale, California 94086
Attention: Secretary
Dear _________________:
As Escrow Agent for both Splash Technology Holdings, Inc. (the "Company"),
and the undersigned purchaser of stock of the Company (the "Purchaser"), you are
hereby authorized and directed to hold the documents delivered to you pursuant
to the terms of that certain Restricted Stock Purchase Agreement ("Agreement")
between the Company and the undersigned, in accordance with the following
instructions:
1. In the event the Company and/or any assignee of the Company (referred
to collectively for convenience herein as the "Company") exercises the Company's
repurchase option set forth in the Agreement, the Company shall give to
Purchaser and you a written notice specifying the number of shares of stock to
be purchased, the purchase price, and the time for a closing hereunder at the
principal office of the Company. Purchaser and the Company hereby irrevocably
authorize and direct you to close the transaction contemplated by such notice in
accordance with the terms of said notice.
2. At the closing, you are directed (a) to date the stock assignments
necessary for the transfer in question, (b) to fill in the number of shares
being transferred, and (c) to deliver same, together with the certificate
evidencing the shares of stock to be transferred, to the Company or its
assignee, against the simultaneous delivery to you of the purchase price (by
cash, a check, or some combination thereof) for the number of shares of stock
being purchased pursuant to the exercise of the Company's repurchase option.
3. Purchaser irrevocably authorizes the Company to deposit with you any
certificates evidencing shares of stock to be held by you hereunder and any
additions and substitutions to said shares as defined in the Agreement.
Purchaser does hereby irrevocably constitute and appoint you as Purchaser's
attorney-in-fact and agent for the term of this escrow to execute with respect
to such securities all documents necessary or appropriate to make such
securities negotiable and to complete any transaction herein contemplated,
including but not limited to the filing with any applicable state blue sky
authority of any required applications for consent to, or notice of transfer of,
the securities. Subject to the provisions of this paragraph 3, Purchaser shall
exercise all rights and privileges of a stockholder of the Company while the
stock is held by you.
<PAGE>
4. Upon written request of the Purchaser, but no more than once per
calendar year, unless the Company's repurchase option has been exercised, you
will deliver to Purchaser a certificate or certificates representing so many
shares of stock as are not then subject to the Company's repurchase option.
Within 120 days after cessation of Purchaser's continuous employment by or
services to the Company, or any parent or subsidiary of the Company, you will
deliver to Purchaser a certificate or certificates representing the aggregate
number of shares held or issued pursuant to the Agreement and not purchased by
the Company or its assignees pursuant to exercise of the Company's repurchase
option.
5. If at the time of termination of this escrow you should have in your
possession any documents, securities, or other property belonging to Purchaser,
you shall deliver all of the same to Purchaser and shall be discharged of all
further obligations hereunder.
6. Your duties hereunder may be altered, amended, modified or revoked
only by a writing signed by all of the parties hereto.
7. You shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely and shall be protected in relying or
refraining from acting on any instrument reasonably believed by you to be
genuine and to have been signed or presented by the proper party or parties.
You shall not be personally liable for any act you may do or omit to do
hereunder as Escrow Agent or as attorney-in-fact for Purchaser while acting in
good faith, and any act done or omitted by you pursuant to the advice of your
own attorneys shall be conclusive evidence of such good faith.
8. You are hereby expressly authorized to disregard any and all warnings
given by any of the parties hereto or by any other person or corporation,
excepting only orders or process of courts of law and are hereby expressly
authorized to comply with and obey orders, judgments or decrees of any court.
In case you obey or comply with any such order, judgment or decree, you shall
not be liable to any of the parties hereto or to any other person, firm or
corporation by reason of such compliance, notwithstanding any such order,
judgment or decree being subsequently reversed, modified, annulled, set aside,
vacated or found to have been entered without jurisdiction.
9. You shall not be liable in any respect on account of the identity,
authorities or rights of the parties executing or delivering or purporting to
execute or deliver the Agreement or any documents or papers deposited or called
for hereunder.
10. You shall not be liable for the outlawing of any rights under the
Statute of Limitations with respect to these Joint Escrow Instructions or any
documents deposited with you.
11. You shall be entitled to employ such legal counsel and other experts
as you may deem necessary properly to advise you in connection with your
obligations hereunder, may rely upon the advice of such counsel, and may pay
such counsel reasonable compensation therefor.
<PAGE>
12. Your responsibilities as Escrow Agent hereunder shall terminate if you
shall cease to be an officer or agent of the Company or if you shall resign by
written notice to each party. In the event of any such termination, the Company
shall appoint a successor Escrow Agent.
13. If you reasonably require other or further instruments in connection
with these Joint Escrow Instructions or obligations in respect hereto, the
necessary parties hereto shall join in furnishing such instruments.
14. It is understood and agreed that should any dispute arise with respect
to the delivery and/or ownership or right of possession of the securities held
by you hereunder, you are authorized and directed to retain in your possession
without liability to anyone all or any part of said securities until such
disputes shall have been settled either by mutual written agreement of the
parties concerned or by a final order, decree or judgment of a court of
competent jurisdiction after the time for appeal has expired and no appeal has
been perfected, but you shall be under no duty whatsoever to institute or defend
any such proceedings.
15. Any notice required or permitted hereunder shall be given in writing
and shall be deemed effectively given upon personal delivery or upon deposit in
the United States Post Office, by registered or certified mail with postage and
fees prepaid, addressed to each of the other parties thereunto entitled at the
following addresses or at such other addresses as a party may designate by ten
days' advance written notice to each of the other parties hereto.
COMPANY: Splash Technology Holdings, Inc.
555 Del Rey Avenue
Sunnyvale, California 94086
Attention: Secretary
PURCHASER: __________________________________________
__________________________________________
__________________________________________
ESCROW AGENT: Corporate Secretary
Splash Technology Holdings, Inc.
555 Del Rey Avenue
Sunnyvale, California 94086
Attention: Secretary
16. By signing these Joint Escrow Instructions, you become a party hereto
only for the purpose of said Joint Escrow Instructions; you do not become a
party to the Agreement.
17. This instrument shall be binding upon and inure to the benefit of the
parties hereto, and their respective successors and permitted assigns.
<PAGE>
18. These Joint Escrow Instructions shall be governed by, and construed
and enforced in accordance with, the laws of the State of California.
SPLASH TECHNOLOGY HOLDINGS, INC.
By: ____________________________________________
Title: _________________________________________
Purchaser: _____________________________________
(Signature)
________________________________________________
(Typed or Printed Name)
Escrow Agent:
________________________________________________
Corporate Secretary
<PAGE>
EXHIBIT C-4
-----------
CONSENT OF SPOUSE
-----------------
I, ____________________, spouse of ___________________, have read and
approve the foregoing Agreement. In consideration of granting of the right to
my spouse to purchase shares of Splash Technology Holdings, Inc., as set forth
in the Agreement, I hereby appoint my spouse as my attorney-in-fact in respect
to the exercise of any rights under the Agreement and agree to be bound by the
provisions of the Agreement insofar as I may have any rights in said Agreement
or any shares issued pursuant thereto under the community property laws or
similar laws relating to marital property in effect in the state of our
residence as of the date of the signing of the foregoing Agreement.
Dated: _______________, 19___
____________________________________
<PAGE>
EXHIBIT C-5
-----------
ELECTION UNDER SECTION 83(b)
----------------------------
OF THE INTERNAL REVENUE CODE OF 1986
------------------------------------
The undersigned taxpayer hereby elects, pursuant to Section 83(b) of the
Internal Revenue Code of 1986, as amended, to include in taxpayer's gross income
for the current taxable year the amount of any compensation taxable to taxpayer
in connection with taxpayer's receipt of the property described below:
1. The name, address, taxpayer identification number and taxable year of the
undersigned are as follows:
NAME: TAXPAYER: SPOUSE:
ADDRESS:
IDENTIFICATION NO.: TAXPAYER: SPOUSE:
TAXABLE YEAR:
2. The property with respect to which the election is made is described as
follows: ______________________________ shares (the "Shares") of the Common
Stock of Splash Technology Holdings, Inc. (the "Company").
3. The date on which the property was transferred is:
____________________________, 19 ____.
4. The property is subject to the following restrictions:
The Shares may not be transferred and are subject to forfeiture under the
terms of an agreement between the taxpayer and the Company. These
restrictions lapse upon the satisfaction of certain conditions contained in
such agreement.
5. The fair market value at the time of transfer, determined without regard to
any restriction other than a restriction which by its terms will never
lapse, of such property is:
$______________________.
6. The amount (if any) paid for such property is:
$______________________.
The undersigned has submitted a copy of this statement to the person for whom
the services were performed in connection with the undersigned's receipt of the
above-described property. The transferee of such property is the person
performing the services in connection with the transfer of said property.
The undersigned understands that the foregoing election may not be revoked
- --------------------------------------------------------------------------
except with the consent of the Commissioner.
- -------------------------------------------
Dated: ___________________, 19__ ______________________________
Taxpayer
The undersigned spouse of taxpayer joins in this election.
Dated: ___________________, 19__ ______________________________
Spouse of Taxpayer
<PAGE>
EXHIBIT C-6
-----------
ELECTION UNDER SECTION 83(b)
----------------------------
OF THE INTERNAL REVENUE CODE OF 1986
------------------------------------
The undersigned taxpayer hereby elects, pursuant to the provisions of Sections
55-56 and 83(b) of the Internal Revenue Code of 1986, as amended, to include in
taxpayer's alternative minimum taxable income for the current taxable year, as
compensation for services, the excess, if any, of the fair market value of the
property described below at the time of transfer over the amount paid for such
property.
1. The name, address, taxpayer identification number and taxable year of the
undersigned are as follows:
NAME: TAXPAYER: SPOUSE:
ADDRESS:
IDENTIFICATION NO.: TAXPAYER: SPOUSE:
TAXABLE YEAR:
2. The property with respect to which the election is made is described as
follows: __________ shares (the "Shares") of the Common Stock of Splash
Technology Holdings, Inc. (the "Company").
3. The date on which the property was transferred is: .
4. The property is subject to the following restrictions:
The Shares may be repurchased by the Company, or its assignee, at its
original purchase price, on certain events. This right lapses with regard to
a portion of the Shares over time.
5. The fair market value at the time of transfer, determined without regard to
any restriction other than a restriction which by its terms will never
lapse, of such property is:
$_______________
6. The amount paid for such property is:
$_______________
The undersigned has submitted a copy of this statement to the person for whom
the services were performed in connection with the undersigned's receipt of the
above-described property. The transferee of such property is the person
performing the services in connection with the transfer of said property.
The undersigned understands that the foregoing election may not be revoked
- --------------------------------------------------------------------------
except with the consent of the Commissioner.
- -------------------------------------------
Dated: _________________________, Taxpayer
The undersigned spouse of taxpayer joins in this election.
Dated: ___________________, 19__ _____________________________________________
<PAGE>
EXHIBIT 10.3
SPLASH TECHNOLOGY, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
The following constitute the provisions of the 1996 Employee Stock Purchase
Plan of Splash Technology, Inc.
1. Purpose. The purpose of the Plan is to provide employees of the Company
-------
and its Designated Subsidiaries with an opportunity to purchase Common Stock of
the Company through accumulated payroll deductions. It is the intention of the
Company to have the Plan qualify as an "Employee Stock Purchase Plan" under
Section 423 of the Internal Revenue Code of 1986, as amended. The provisions of
the Plan, accordingly, shall be construed so as to extend and limit
participation in a manner consistent with the requirements of that section of
the Code.
2. Definitions.
-----------
(a) "Board" shall mean the Board of Directors of the Company.
-----
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
----
(c) "Common Stock" shall mean the Common Stock of the Company.
------------
(d) "Company" shall mean Splash Technology, Inc., and any Designated
-------
Subsidiary of the Company.
(e) "Compensation" shall mean all base straight time gross earnings
------------
including commissions, overtime, shift premium, incentive compensation,
incentive payments, bonuses and other compensation.
(f) "Designated Subsidiaries" shall mean the Subsidiaries which have
-----------------------
been designated by the Board from time to time in its sole discretion as
eligible to participate in the Plan.
(g) "Employee" shall mean any individual who is an Employee of the
--------
Company for tax purposes whose customary employment with the Company is at least
twenty (20) hours per week and more than five (5) months in any calendar year.
For purposes of the Plan, the employment relationship shall be treated as
continuing intact while the individual is on sick leave or other leave of
absence approved by the Company. Where the period of leave exceeds 90 days and
the individual's right to reemployment is not guaranteed either by statute or by
contract, the employment relationship shall be deemed to have terminated on the
91st day of such leave.
(h) "Enrollment Date" shall mean the first day of each Offering Period.
---------------
<PAGE>
(i) "Exercise Date" shall mean the last trading day of each Purchase
-------------
Period Offering Period.
(j) "Fair Market Value" shall mean, as of any date, the value of Common
-----------------
Stock determined as follows:
(1) If the Common Stock is listed on any established stock exchange
or a national market system, including without limitation the Nasdaq National
Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market
Value shall be the closing sales price for such stock (or the closing bid, if no
sales were reported) as quoted on such exchange or system for the last market
trading day prior to the time of determination, as reported in The Wall Street
Journal or such other source as the Board deems reliable, or;
(2) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, its Fair Market Value
shall be the mean of the closing bid and asked prices for the Common Stock on
the date of such determination, as reported in The Wall Street Journal or such
other source as the Board deems reliable, or;
(3) In the absence of an established market for the Common Stock,
the Fair Market Value thereof shall be determined in good faith by the Board.
(4) For purposes of the Enrollment Date under the first Offering
Period under the Plan, the Fair Market Value shall be the initial price to the
public as set forth in the final Prospectus included within the registration
statement in Form S-1 filed with the Securities and Exchange Commission for the
initial public offering of the Company's Common Stock.
(k) "Offering Period" shall mean the period beginning with the date an
---------------
opinion is granted under the Plan and ending with the date determined by the
Committee. During the term of the Plan, the duration of each Offering Period
shall be determined from time to time by the Committee, provided that no
Offering Period may exceed twenty-four (24) months in duration. If determined by
the Committee, an Offering Period may include one or more Purchase Periods. The
first Offering Period shall begin on the effective date of the Company's initial
public offering of its Common Stock that is registered with the Securities and
Exchange Commission (the "Effective Date") and shall end on the last Trading Day
on or before April 30, 1997.
(l) "Plan" shall mean this Employee Stock Purchase Plan.
----
(m) "Purchase Price" shall mean an amount equal to 85% of the Fair
--------------
Market Value of a share of Common Stock on the Enrollment Date or on the
Exercise Date, whichever is lower.
(n) "Purchase Period" shall mean the period commencing on an Enrollment
---------------
Date or after an Exercise Date and which is of such duration as the Committee
shall determine.
-2-
<PAGE>
(o) "Reserves" shall mean the number of shares of Common Stock covered
--------
by each option under the Plan which have not yet been exercised and the number
of shares of Common Stock which have been authorized for issuance under the Plan
but not yet placed under option.
(p) "Subsidiary" shall mean a corporation, domestic or foreign, of
----------
which not less than 50% of the voting shares are held by the Company or a
Subsidiary, whether or not such corporation now exists or is hereafter organized
or acquired by the Company or a Subsidiary.
(q) "Trading Day" shall mean a day on which national stock exchanges and
-----------
the Nasdaq System are open for trading.
3. Eligibility.
-----------
(a) Any Employee who shall be employed by the Company on a given
Enrollment Date shall be eligible to participate in the Plan.
(b) Any provisions of the Plan to the contrary notwithstanding, no
Employee shall be granted an option under the Plan (i) to the extent that,
immediately after the grant, such Employee (or any other person whose stock
would be attributed to such Employee pursuant to Section 424(d) of the Code)
would own capital stock of the Company and/or hold outstanding options to
purchase such stock possessing five percent (5%) or more of the total combined
voting power or value of all classes of the capital stock of the Company or of
any Subsidiary, or (ii) to the extent that his or her rights to purchase stock
under all employee stock purchase plans of the Company and its subsidiaries
accrues at a rate which exceeds Twenty-Five Thousand Dollars ($25,000) worth of
stock (determined at the fair market value of the shares at the time such option
is granted) for each calendar year in which such option is outstanding at any
time.
4. Offering and Purchase Periods. The Plan shall be implemented by
-----------------------------
consecutive, overlapping Offering Periods, each of which shall be of such
duration (not to exceed 24 months) as the Committee shall determine from time to
time in its discretion, and each of which shall consist of such number of
Purchase Periods as the Committee shall determine from time to time in its
discretion. The Plan shall continue until terminated in accordance with Section
19 hereof. The first Offering Period shall commence on the Effective Date and
shall end on the last Trading Day on or before April 30, 1997. Unless otherwise
specified by the Board, the Offering Periods shall be six months in duration
without any Purchase Periods with the first Offering Period commencing on the
Effective Date and ending on April 30, 1997, as aforesaid, and the second
commencing on May 1, 1997, and ending on October 31, 1997. The Committee shall
have the power to change the duration of Offering Periods (including the
commencement dates thereof) at any time or from time to time, provided that
(except as the shareholders may otherwise approve) any such change shall be
effected only with respect to Offering Periods commencing at least five (5) days
following the date on which the change is announced.
-3-
<PAGE>
5. Participation.
-------------
(a) An eligible Employee may become a participant in the Plan by
completing a subscription agreement authorizing payroll deductions in the form
of Exhibit A to this Plan and filing it with the Company's payroll office prior
to the applicable Enrollment Date.
(b) Payroll deductions for a participant shall commence on the first
payroll following the Enrollment Date and shall end on the last payroll in the
Offering Period to which such authorization is applicable, unless sooner
terminated by the participant as provided in Section 10 hereof.
6. Payroll Deductions.
------------------
(a) At the time a participant files his or her subscription agreement,
he or she shall elect to have payroll deductions made on each pay day during the
Offering Period in an amount not exceeding ten percent (10%) of the Compensation
which he or she receives on each pay day during the Offering Period, provided,
however, that for purposes of the first Offering Period, the maximum payroll
deduction shall not exceed twenty percent (20%) of the Compensation which a
participant receives during the first Offering Period.
(b) All payroll deductions made for a participant shall be credited to
his or her account under the Plan and shall be withheld in whole percentages
only. A participant may not make any additional payments into such account.
(c) A participant may discontinue his or her participation in the Plan
as provided in Section 10 hereof, or may increase or decrease the rate of his or
her payroll deductions during the Offering Period by completing or filing with
the Company a new subscription agreement authorizing a change in payroll
deduction rate. The Board may, in its discretion, limit the number of
participation rate changes during any Offering Period. The change in rate shall
be effective with the first full payroll period following five (5) business days
after the Company's receipt of the new subscription agreement unless the Company
elects to process a given change in participation more quickly. A participant's
subscription agreement shall remain in effect for successive Offering Periods
unless terminated as provided in Section 10 hereof.
(d) Notwithstanding the foregoing, to the extent necessary to comply
with Section 423(b)(8) of the Code and Section 3(b) hereof, a participant's
payroll deductions may be decreased to zero percent (0%) at such time during any
Purchase Period which is scheduled to end during the current calendar year (the
"Current Purchase Period") that the aggregate of all payroll deductions which
were previously used to purchase stock under the Plan in a prior Purchase Period
which ended during that calendar year plus all payroll deductions accumulated
with respect to the Current Purchase Period equal $21,250. Payroll deductions
shall recommence at the rate provided in such participant's subscription
agreement at the beginning of the first Purchase Period which is scheduled
-4-
<PAGE>
to end in the following calendar year, unless terminated by the participant as
provided in Section 10 hereof.
(e) At the time the option is exercised, in whole or in part, or at the
time some or all of the Company's Common Stock issued under the Plan is disposed
of, the participant must make adequate provision for the Company's federal,
state, or other tax withholding obligations, if any, which arise upon the
exercise of the option or the disposition of the Common Stock. At any time, the
Company may, but shall not be obligated to, withhold from the participant's
compensation the amount necessary for the Company to meet applicable withholding
obligations, including any withholding required to make available to the Company
any tax deductions or benefits attributable to sale or early disposition of
Common Stock by the Employee.
7. Grant of Option. On the Enrollment Date of each Offering Period, each
---------------
eligible Employee participating in such Offering Period shall be granted an
option to purchase on each Exercise Date during such Offering Period (at the
applicable Purchase Price) up to a number of shares of the Company's Common
Stock determined by dividing such Employee's payroll deductions accumulated
prior to such Exercise Date and retained in the Participant's account as of the
Exercise Date by the applicable Purchase Price; provided that in no event shall
an Employee be permitted to purchase during each Purchase Period, or during an
Offering Period if such Offering Period does not contain Purchase Periods, more
than a number of shares determined by dividing $12,500 by the Fair Market Value
of a share of the Company's Common Stock on the Enrollment Date, and provided
further that such purchase shall be subject to the limitations set forth in
Sections 3(b) and 12 hereof. Exercise of the option shall occur as provided in
Section 8 hereof, unless the participant has withdrawn pursuant to Section 10
hereof. The option shall expire on the last day of the Offering Period.
8. Exercise of Option.
------------------
(a) Unless a participant withdraws from the Plan as provided in Section
10 hereof, his or her option for the purchase of shares shall be exercised
automatically on the Exercise Date, and the maximum number of full shares
subject to option shall be purchased for such participant at the applicable
Purchase Price with the accumulated payroll deductions in his or her account. No
fractional shares shall be purchased; any payroll deductions accumulated in a
participant's account which are not sufficient to purchase a full share shall be
retained in the participant's account for the subsequent Purchase Period or
Offering Period, subject to earlier withdrawal by the participant as provided in
Section 10 hereof. Any other monies left over in a participant's account after
the Exercise Date shall be returned to the participant. During a participant's
lifetime, a participant's option to purchase shares hereunder is exercisable
only by him or her.
[(b) In the event, on a given Exercise Date, the number of shares with
respect to which options are to be exercised exceeds 25,000 shares for the
calendar year, the Company shall make a pro rata allocation of the shares
remaining below the 25,000 share limit in as uniform a manner as shall be
practicable and as it shall determine to be equitable. Notwithstanding the
above
-5-
<PAGE>
sentence, for purposes of the first Offering Period under the Plan and any other
Exercise Dates in 1997, the 25,000 share limit shall apply separately to each
Exercise Date rather than to the 1997 calendar year.]
9. Delivery. As promptly as practicable after each Exercise Date on
--------
which a purchase of shares occurs, the Company shall arrange the delivery to
each participant, as appropriate, of the shares purchased upon exercise of his
or her option.
10. Withdrawal; Termination of Employment.
-------------------------------------
(a) A participant may withdraw all but not less than all the payroll
deductions credited to his or her account and not yet used to exercise his or
her option under the Plan at any time by giving written notice to the Company in
the form of Exhibit B to this Plan. All of the participant's payroll deductions
credited to his or her account shall be paid to such participant promptly after
receipt of notice of withdrawal and such participant's option for the Offering
Period shall be automatically terminated, and no further payroll deductions for
the purchase of shares shall be made for such Offering Period. If a participant
withdraws from an Offering Period, payroll deductions shall not resume at the
beginning of the succeeding Offering Period unless the participant delivers to
the Company a new subscription agreement.
(b) Upon a participant's ceasing to be an Employee, for any reason, he
or she shall be deemed to have elected to withdraw from the Plan and the payroll
deductions credited to such participant's account during the Offering Period but
not yet used to exercise the option shall be returned to such participant or, in
the case of his or her death, to the person or persons entitled thereto under
Section 14 hereof, and such participant's option shall be automatically
terminated. The preceding sentence notwithstanding, a participant who receives
payment in lieu of notice of termination of employment shall be treated as
continuing to be an Employee for the participant's customary number of hours per
week of employment during the period in which the participant is subject to such
payment in lieu of notice.
(c) A participant's withdrawal from an Offering Period shall not have
any effect upon his or her eligibility to participate in any similar plan which
may hereafter be adopted by the Company or in succeeding Offering Periods which
commence after the termination of the Offering Period from which the participant
withdraws.
11. Interest. No interest shall accrue on the payroll deductions of a
--------
participant in the Plan.
12. Stock.
-----
(a) The maximum number of shares of the Company's Common Stock which
shall be made available for sale under the Plan shall be 50,000 shares, subject
to adjustment upon changes in capitalization of the Company as provided in
Section 18 hereof. If, on a given Exercise Date, the number of shares with
respect to which options are to be exercised exceeds the number of shares then
-6-
<PAGE>
available under the Plan, the Company shall make a pro rata allocation of the
shares remaining available for purchase in as uniform a manner as shall be
practicable and as it shall deter mine to be equitable.
(b) The participant shall have no interest or voting right in shares
covered by his option until such option has been exercised.
(c) Shares to be delivered to a participant under the Plan shall be
registered in the name of the participant or in the name of the participant and
his or her spouse.
13. Administration.
--------------
(a) Administrative Body. The Plan shall be administered by the Board
-------------------
or a committee of members of the Board appointed by the Board. The Board or its
committee shall have full and exclusive discretionary authority to construe,
interpret and apply the terms of the Plan, to determine eligibility and to
adjudicate all disputed claims filed under the Plan. Every finding, decision and
determination made by the Board or its committee shall, to the full extent
permitted by law, be final and binding upon all parties.
(b) Rule 16b-3 Limitations. Notwithstanding the provisions of
----------------------
Subsection (a) of this Section 13, in the event that Rule 16b-3 promulgated
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
any successor provision ("Rule 16b-3") provides specific requirements for the
administrators of plans of this type, the Plan shall be administered only by
such a body and in such a manner as shall comply with the applicable
requirements of Rule 16b-3. Unless permitted by Rule 16b-3, no discretion
concerning decisions regarding the Plan shall be afforded to any committee or
person that is not "disinterested" as that term is used in Rule 16b-3.
14. Designation of Beneficiary.
--------------------------
(a) A participant may file a written designation of a beneficiary who
is to receive any shares and cash, if any, from the participant's account under
the Plan in the event of such partici pant's death subsequent to an Exercise
Date on which the option is exercised but prior to delivery to such participant
of such shares and cash. In addition, a participant may file a written
designation of a beneficiary who is to receive any cash from the participant's
account under the Plan in the event of such participant's death prior to
exercise of the option. If a participant is married and the designated
beneficiary is not the spouse, spousal consent shall be required for such
designation to be effective.
(b) Such designation of beneficiary may be changed by the participant
at any time by written notice. In the event of the death of a participant and in
the absence of a beneficiary validly designated under the Plan who is living at
the time of such participant's death, the Company shall deliver such shares
and/or cash to the executor or administrator of the estate of the participant,
or if no such executor or administrator has been appointed (to the knowledge of
the Company), the Company, in its discretion, may deliver such shares and/or
cash to the spouse or to any one or more
-7-
<PAGE>
dependents or relatives of the participant, or if no spouse, dependent or
relative is known to the Company, then to such other person as the Company may
designate.
15. Transferability. Neither payroll deductions credited to a
---------------
participants' account nor any rights with regard to the exercise of an option or
to receive shares under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of descent and
distribution or as provided in Section 14 hereof) by the participant. Any such
attempt at assignment, transfer, pledge or other disposition shall be without
effect, except that the Company may treat such act as an election to withdraw
funds from an Offering Period in accordance with Section 10 hereof.
16. Use of Funds. All payroll deductions received or held by the Company
------------
under the Plan may be used by the Company for any corporate purpose, and the
Company shall not be obligated to segregate such payroll deductions.
17. Reports. Individual accounts shall be maintained for each participant
-------
in the Plan. Statements of account shall be given to participating Employees at
least annually, which statements shall set forth the amounts of payroll
deductions, the Purchase Price, the number of shares purchased and the remaining
cash balance, if any.
18. Adjustments Upon Changes in Capitalization, Dissolution, Liquidation,
---------------------------------------------------------------------
Merger or Asset Sale.
--------------------
(a) Changes in Capitalization. Subject to any required action by the
-------------------------
shareholders of the Company, the Reserves, as well as the price per share and
the number of shares of Common Stock covered by each option under the Plan which
has not yet been exercised, shall be proportionately adjusted for any increase
or decrease in the number of issued shares of Common Stock resulting from a
stock split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other increase or decrease in the
number of shares of Common Stock effected without receipt of consideration by
the Company; provided, however, that conversion of any convertible securities of
the Company shall not be deemed to have been "effected without receipt of
consideration". Such adjustment shall be made by the Board, whose determination
in that respect shall be final, binding and conclusive. Except as expressly
provided herein, no issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or price
of shares of Common Stock subject to an option.
(b) Dissolution or Liquidation. In the event of the proposed
--------------------------
dissolution or liquidation of the Company, the Offering Periods shall terminate
immediately prior to the consummation of such proposed action, unless otherwise
provided by the Board.
(c) Merger or Asset Sale. In the event of a proposed sale of all or
--------------------
substantially all of the assets of the Company, or the merger of the Company
with or into another corporation, any Purchase Periods then in progress shall be
shortened by setting a new Exercise Date (the "New
-8-
<PAGE>
Exercise Date") and any Offering Periods then in progress shall end on the New
Exercise Date. The New Exercise Date shall be before the date of the Company's
proposed sale or merger. The Board shall notify each participant in writing, at
least ten (10) business days prior to the New Exercise Date, that the Exercise
Date for the participant's option has been changed to the New Exercise Date and
that the participant's option shall be exercised automatically on the New
Exercise Date, unless prior to such date the participant has withdrawn from the
Offering Period as provided in Section 10 hereof.
19. Amendment or Termination.
------------------------
(a) The Board may at any time and for any reason terminate or
amend the Plan. Except as provided in Section 18 hereof, no such termination can
affect options previously granted, provided that an Offering Period may be
terminated by the Board on any Exercise Date if the Board determines that the
termination of the Plan is in the best interests of the Company and its
shareholders. Except as provided in Section 18 hereof, no amendment may make any
change in any option theretofore granted which adversely affects the rights of
any participant. To the extent necessary to comply with Section 423 of the Code
(or any successor rule or provision or any other applicable law or regulation),
the Company shall obtain shareholder approval in such a manner and to such a
degree as required.
(b) Without shareholder consent and without regard to whether any
participant rights may be considered to have been "adversely affected," the
Board (or its committee) shall be entitled to change the Offering Periods, limit
the frequency and/or number of changes in the amount withheld during an Offering
Period, establish the exchange ratio applicable to amounts withheld in a
currency other than U.S. dollars, permit payroll withholding in excess of the
amount designated by a participant in order to adjust for delays or mistakes in
the Company's processing of properly completed withholding elections, establish
reasonable waiting and adjustment periods and/or accounting and crediting
procedures to ensure that amounts applied toward the purchase of Common Stock
for each participant properly correspond with amounts withheld from the
participant's Compensation, and establish such other limitations or procedures
as the Board (or its committee) determines in its sole discretion advisable
which are consistent with the Plan.
20. Notices. All notices or other communications by a participant to
-------
the Company under or in connection with the Plan shall be deemed to have been
duly given when received in the form specified by the Company at the location,
or by the person, designated by the Company for the receipt thereof.
21. Conditions Upon Issuance of Shares. Shares shall not be issued
----------------------------------
with respect to an option unless the exercise of such option and the issuance
and delivery of such shares pursuant thereto shall comply with all applicable
provisions of law, domestic or foreign, including, without limitation, the
Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as
amended, the rules and regulations promulgated thereunder, and the requirements
of any stock exchange upon which the shares may then be listed, and shall be
further subject to the approval of counsel for the Company with respect to such
compliance.
-9-
<PAGE>
As a condition to the exercise of an option, the Company may require
the person exercising such option to represent and warrant at the time of any
such exercise that the shares are being purchased only for investment and
without any present intention to sell or distribute such shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned applicable provisions of law.
22. Term of Plan. The Plan shall become effective upon the earlier to
------------
occur of its adoption by the Board of Directors or its approval by the
shareholders of the Company. It shall continue in effect for a term of ten (10)
years unless sooner terminated under Section 19 hereof.
-10-
<PAGE>
EXHIBIT A
---------
SPLASH TECHNOLOGY, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
SUBSCRIPTION AGREEMENT
_____ Original Application Enrollment Date: ___________
_____ Change in Payroll Deduction Rate
_____ Change of Beneficiary(ies)
1. _____________________________________________________ hereby elects to
participate in the Splash Technology, Inc. 1996 Employee Stock Purchase
Plan (the "Employee Stock Purchase Plan") and subscribes to purchase shares
of the Company's Common Stock in accordance with this Subscription
Agreement and the Employee Stock Purchase Plan.
2. I hereby authorize payroll deductions from each paycheck in the amount of
____% of my Compensation on each payday (from 1 to 20% for the first
Offering Period) during the Offering Period in accordance with the Employee
Stock Purchase Plan. (Please note that no fractional percentages are
permitted.)
3. I understand that said payroll deductions shall be accumulated for the
purchase of shares of Common Stock at the applicable Purchase Price
determined in accordance with the Employee Stock Purchase Plan. I
understand that if I do not withdraw from an Offering Period, any
accumulated payroll deductions will be used to automatically exercise my
option.
4. I have received a copy of the complete Employee Stock Purchase Plan. I
understand that my participation in the Employee Stock Purchase Plan is in
all respects subject to the terms of the Plan. I understand that my
ability to exercise the option under this Subscription Agreement is subject
to shareholder approval of the Employee Stock Purchase Plan.
5. Shares purchased for me under the Employee Stock Purchase Plan should be
issued in the name(s) of (Employee or Employee and spouse only):
___________________________________________________________________________
____________.
6. I understand that if I dispose of any shares received by me pursuant to the
Plan within 2 years after the Enrollment Date (the first day of the
Offering Period during which I purchased such shares) or one year after the
Exercise Date, I will be treated for federal income tax purposes as having
received ordinary income at the time of such disposition in an amount equal
to the excess of the fair market value of the shares at the time such
shares were purchased by me over the price which I paid for the shares. I
-
hereby agree to notify the Company in writing
---------------------------------------------
-11-
<PAGE>
within 30 days after the date of any disposition of my shares and I will
------------------------------------------------------------------------
make adequate provision for Federal, state or other tax withholding
-------------------------------------------------------------------
obligations, if any, which arise upon the disposition of the Common Stock.
-------------------------------------------------------------------------
The Company may, but will not be obligated to, withhold from my
compensation the amount necessary to meet any applicable withholding
obligation including any withholding necessary to make available to the
Company any tax deductions or benefits attributable to sale or early
disposition of Common Stock by me. If I dispose of such shares at any time
after the expiration of the 2-year and 1-year holding periods, I understand
that I will be treated for federal income tax purposes as having received
income only at the time of such disposition, and that such income will be
taxed as ordinary income only to the extent of an amount equal to the
lesser of (1) the excess of the fair market value of the shares at the time
of such disposition over the purchase price which I paid for the shares, or
(2) 15% of the fair market value of the shares on the first day of the
Offering Period. The remainder of the gain, if any, recognized on such
disposition will be taxed as capital gain.
7. I hereby agree to be bound by the terms of the Employee Stock Purchase
Plan. The effectiveness of this Subscription Agreement is dependent upon
my eligibility to participate in the Employee Stock Purchase Plan.
8. In the event of my death, I hereby designate the following as my
beneficiary(ies) to receive all payments and shares due me under the
Employee Stock Purchase Plan:
NAME: (Please print)______________________________________________
(First) (Middle) (Last)
__________________________________ _______________________________________
Relationship
_______________________________________
(Address)
-2-
<PAGE>
Employee's Social
Security Number: ____________________________________
Employee's Address: ____________________________________
____________________________________
____________________________________
I UNDERSTAND THAT THIS SUBSCRIPTION AGREEMENT SHALL REMAIN IN EFFECT THROUGHOUT
SUCCESSIVE OFFERING PERIODS UNLESS TERMINATED BY ME.
Dated:_________________________ ________________________________________
Signature of Employee
_______________________________________
Spouse's Signature (If beneficiary other
than spouse)
-3-
<PAGE>
EXHIBIT B
---------
SPLASH TECHNOLOGY, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
NOTICE OF WITHDRAWAL
The undersigned participant in the Offering Period of the Splash
Technology, Inc. 1996 Employee Stock Purchase Plan which began on ____________,
19____ (the "Enrollment Date") hereby notifies the Company that he or she hereby
withdraws from the Offering Period. He or she hereby directs the Company to pay
to the undersigned as promptly as practicable all the payroll deductions
credited to his or her account with respect to such Offering Period. The
undersigned understands and agrees that his or her option for such Offering
Period will be automatically termi nated. The undersigned understands further
that no further payroll deductions will be made for the purchase of shares in
the current Offering Period and the undersigned shall be eligible to participate
in succeeding Offering Periods only by delivering to the Company a new
Subscription Agreement.
Name and Address of Participant:
________________________________
________________________________
________________________________
Signature:
________________________________
Date:__________________________
<PAGE>
EXHIBIT 10.5
ADOBE CONFIDENTIAL
CONFIGURABLE POSTSCRIPT(R) INTERPRETER
OEM LICENSE AGREEMENT
DATED AS OF SEPTEMBER 18, 1992
BETWEEN
SUPERMAC TECHNOLOGY INCORPORATED
AND
ADOBE SYSTEMS INCORPORATED
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
1. DEFINITIONS............................................................. 1
1.1 Adobe Information................................................. 1
1.2 Adobe Software.................................................... 1
1.3 Adobe Trademarks.................................................. 2
1.4 Coded Font Programs............................................... 2
1.5 Computer System................................................... 2
1.6 CPST Application.................................................. 2
1.7 CPST Application Appendix......................................... 3
1.8 Demonstration Program(s).......................................... 3
1.9 Designated Output Device(s)....................................... 3
1.10 Documentation..................................................... 3
1.11 End User.......................................................... 3
1.12 Internal Improvements............................................. 3
1.13 Licensed System................................................... 3
1.14 Other Adobe-Supplied Software..................................... 3
1.15 PostScript Language Addendum...................................... 3
1.16 PPD File.......................................................... 4
1.17 Subsidiary........................................................ 4
1.18 Trademark......................................................... 4
1.19 Typeface.......................................................... 4
2. LICENSE GRANTS.......................................................... 4
2.1 License to Sublicense Certain Software and Documentation.......... 4
2.2 [*]............................................................... 7
2.3 Conveyance of License Only........................................ 7
2.4 Similar Products.................................................. 7
2.5 Reverse Engineering............................................... 8
</TABLE>
[*] Confidential Treatment Requested.
-i-
<PAGE>
<TABLE>
<S> <C>
3. DEVELOPMENT, DELIVERY AND ACCEPTANCE.................................... 8
3.1 Agreement on Future CPSI Applications............................. 8
3.2 Adobe Software Development........................................ 8
3.3 Custom Product Development........................................ 8
3.4 OEM-Loaned Equipment and Related Materials........................ 8
3.5 PPD File.......................................................... 9
3.6 Adobe Deliverables................................................ 9
3.7 OEM Modification; Adobe Assistance................................ 9
3.8 Testing........................................................... 9
3.9 PostScript Language Addendum...................................... 11
4. PROPRIETARY RIGHTS...................................................... 11
4.1 Adobe Ownership................................................... 11
4.2 Adobe Trade Secrets............................................... 11
4.3 Unauthorized Distribution or Copying.............................. 11
4.4 No Modifications.................................................. 11
5. TERM OF AGREEMENT....................................................... 12
6. EXPORT.................................................................. 12
7. PAYMENTS................................................................ 12
7.1 CPSI Application Payments......................................... 12
7.2 Coded Font Program Royalties...................................... 12
7.3 Other Payments.................................................... 12
7.4 Taxes............................................................. 13
7.5 Payment of Royalties.............................................. 13
7.6 When Royalties Are Earned......................................... 13
7.7 Right of Audit.................................................... 13
7.8 ITC Typefaces..................................................... 14
8. OEM SUPPORT............................................................. 14
9. COPYRIGHT AND OTHER NOTICES............................................. 14
9.1 Copyright Notices................................................. 14
9.2 Restricted Rights................................................. 15
9.3 Foreign Government Agreements..................................... 15
</TABLE>
-ii-
<PAGE>
<TABLE>
<S> <C>
LICENSE TO USE ADOBE TRADEMARKS: NONGENERIC ADVERTISING...................... 15
10.1 Trademark License................................................. 15
10.2 Ownership of Trademarks........................................... 16
10.3 Quality Standards................................................. 16
10.4 Infringement Proceedings.......................................... 17
10.5 OEM's Use of Trademarks........................................... 17
10.6 Trademark Registrations........................................... 17
11. WARRANTIES.............................................................. 17
11.1 Infringement...................................................... 17
11.2 Adobe Software Warranty........................................... 18
11.3 Limitations on Warranties......................................... 18
12. INTERNAL IMPROVEMENTS; CONTINUING SUPPORT............................... 19
12.1 Internal Improvements............................................. 19
12.2 Continuing Support................................................ 19
13. CANCELLATION............................................................ 19
13.1 Cancellation by Adobe for Cause................................... 19
13.2 Cancellation by OEM for Cause..................................... 19
13.3 Bankruptcy........................................................ 19
13.4 Obligations on Cancellation, Termination or Expiration............ 19
14. LIMITATION OF LIABILITY................................................. 20
15. GENERAL................................................................. 21
15.1 Governing Law..................................................... 21
15.2 Notices........................................................... 21
15.3 Injunctive Relief................................................. 21
15.4 No Agency......................................................... 21
15.5 Force Majeure..................................................... 21
15.6 Waiver............................................................ 22
15.7 Severability...................................................... 22
15.8 Headings.......................................................... 22
15.9 Confidentiality of Agreement...................................... 22
15.10 No Patent License................................................. 22
15.11 Assignment........................................................ 22
15.12 Attorneys' Fees................................................... 22
15.13 Full Power........................................................ 23
15.14 Forum............................................................. 23
15.15 Entire Agreement.................................................. 23
SIGNATORIES............................................................. 23
</TABLE>
-iii-
<PAGE>
EXHIBITS
--------
<TABLE>
<CAPTION>
Paragraph
Title Exhibit Reference
- ----- ------- ---------
<S> <C> <C>
Description of Adobe Software A 1.2, Exhibit F
Adobe Trademarks B 1.3
Coded Font Programs C Recitals, 1.4, 1.4.1,
1.4.2, 1.19, 2.1.1,
10.1, 10.2, Exhibit F
Reproduction Locations D 2.1.1, 2.1.2, 2.1.5,
2.1.8
Minimum Terms of End User Agreement E 2.1.9
Sample Form of CPSI Application Appendix F 3.1
</TABLE>
-iv-
<PAGE>
ADOBE SYSTEMS INCORPORATED
CONFIGURABLE POSTSCRIPT INTERPRETER
OEM LICENSE AGREEMENT
THIS AGREEMENT is between ADOBE SYSTEMS INCORPORATED, a California
corporation having a place of business at 1585 Charleston Road, P.O. Box 7900,
Mountain View, California 94039-7900 ("Adobe), and SuperMac Technology, Inc., a
Delaware corporation having a place of business at 485 Potrero Ave, Sunnyvale,
CA 94086 ("OEM"). This Agreement is effective as of September 18, 1992.
RECITALS:
A. Adobe owns certain computer programs, known collectively as the
Configurable PostScript Interpreter software, which converts the PostScript
language text into a raster image to control raster devices such as CRT
displays, dot-matrix printers, laser printers, and photo typesetters. (Adobe and
PostScript are trademarks of Adobe registered in the United States.)
B. Adobe also has rights to the Roman Initial lnstallation Coded Font
Programs identified in Exhibit C ("Coded Font Programs") hereto and the Roman
---------
Additional Coded Font Programs, if any, and Other Coded Font Programs, if any,
identified in the applicable CPSI Application Appendix.
C. OEM wishes to license the object code of the Configurable PostScript
Interpreter software and the Coded Font Programs for incorporation in mutually
agreeable OEM application programs for use in mutually agreeable computer system
environments.
OEM and Adobe therefore agree as follows:
AGREEMENT:
---------
1. DEFINITIONS.
-----------
1.1 Adobe Information. "Adobe Information" shall mean the Adobe
-----------------
Software, Other Adobe-Supplied Software, Coded Font Programs, Demonstration
Program(s), Typefaces, Trademarks, Documentation and the Adobe Trademarks.
1.2 Adobe Software. "Adobe Software" shall mean (i) the computer
--------------
programs known collectively as the Configurable PostScript Interpreter software
as
[*] Confidential Treatment Requested.
1
<PAGE>
provided by Adobe to OEM hereunder and without any OEM modifications or
additions thereto, but not including the Demonstration Program(s), (ii) any
other software programs identified in Exhibit A ("Description of Adobe
---------
Software") or designated as "Adobe Software" in any CPSI Application Appendix
hereto, and (iii) any corrections, changes, alterations or enhancements to the
Adobe Software, including Internal Improvements, supplied by Adobe to OEM
pursuant to the terms hereof or any corrections or updates to the Adobe Software
supplied to OEM by Adobe under the terms of a Continuing Support Agreement
between the parties.
1.3 Adobe Trademarks. "Adobe Trademarks" shall mean (i) the trademarks,
----------------
stylistic marks and distinctive logotypes set forth in Exhibit B ("Adobe
---------
Trademarks"), and (ii) other marks and logotypes as Adobe may from time to time
designate during the term of this Agreement.
1.4 Coded Font Programs. "Coded Font Programs" shall mean the Roman
-------------------
Initial Installation Coded Font Programs, Roman Additional Coded Font Programs,
if any, and Other Coded Font Programs, if any, encoded in a special format (as
specified in Exhibit C ("Coded Font Programs") or in the applicable CPSI -
---------
Application Appendix hereto)) and in encrypted form for delivery to OEM. The
term Coded Font Programs does not include any Roman Initial Installation Coded
Font Programs, Roman Additional Coded Font Programs or Other Coded Font Programs
which Adobe is not entitled to license to Adobe's OEM customers; provided,
however, that such limitation does not apply to the Coded Font Programs
identified in Exhibit C ("Coded Font Programs") or in any CPSI Application
---------
Appendix.
1.4.1 Roman Initial Installation Coded Font Programs. "Roman
----------------------------------------------
Initial Installation Coded Font Programs" shall mean the digitally encoded
machine readable outline programs for the Typefaces identified in Exhibit C
---------
("Coded Font Programs") or in a CPSI Application Appendix hereto, and
distributed for use as a part of a licensed System.
1.4.2 Roman Additional Coded Font Programs. "Roman Additional
------------------------------------
Coded Font Programs" shall mean the digitally encoded machine readable outline
programs for the Roman Typefaces identified in Exhibit C ("Coded Font Programs")
---------
or in a CPSI Application Appendix hereto, and distributed for use as a part of a
licensed System.
1.4.3 Other Coded Font Programs. "Other Coded Font Programs" shall
-------------------------
mean the Coded Font Programs (which may include, but are not limited to, Coded
Font Programs for Japanese Typefaces), which are identified in a CPSI
Application Appendix hereto, and which are distributed for use as a part of a
Licensed System.
1.5 Computer System. "Computer System" shall mean one (1) computer with
---------------
operating system software, associated raster display and a Designated
-2-
<PAGE>
Output Device, all of which must be set forth in the applicable CPSI Application
Appendix.
1.6 CPST Application. "CPSI Application" shall mean any mutually
----------------
agreeable application program running in a Computer System environment, as
identified in a CPSI Application Appendix hereto, which incorporates all Or Part
Of the Adobe Software.
1.6.1 CPSI Application Appendix. "CPSI Application Object" shall
-------------------------
mean the object code version of a CPSI Application.
1.7 CPST Application Appendix. "CPSI Application Appendix" shall mean
-------------------------
any CPSI Application Appendix to this Agreement pursuant to which an OEM will
be using the Adobe Software to create a CPSI Application for use as part of a
new Licensed System described therein.
1.8 Demonstration Program(s). "Demonstration Program(s)" shall mean
------------------------
program(s), both in source and/or object code form, which are intended to
provide OEM with an example of how to integrate the Adobe Software into an
application program.
1.9 Designated Output Device(s). "Designated Output Device(s)" shall
---------------------------
mean any output device designated as such in a CPSI Application Appendix and
which has been approved by Adobe for use in conjunction with the CPSI
Application Object to generate output.
1.10 Documentation. "Documentation" shall mean (i) the PostScript
------------- ----------
Language Reference Manual, Second Edition, as printed in English by Addison-
- -----------------------------------------
Wesley, current as of April, 1991, or such other version of the PostScript
Language Reference Manual as specified in a CPSI Application Appendix, (ii) the
PostScript Language Addendum Template, (iii) any Adobe supplement thereto
specific to the Adobe Software licensed hereunder (the "CPSI Supplement"), (iv)
any other Documentation for Adobe Software identified in a CPSI Application
Appendix hereto and (v) any updates, enhancements, substitutions, replacements
or modifications thereof delivered to OEM by Adobe during the term of this
Agreement.
1.11 End User. "End User" shall mean a single individual using the CPSI
--------
Application Object on a single Computer System for its ordinary and customary
business or for personal purposes, and not for redistribution.
1.12 Internal Improvements. "Internal Improvements" shall mean
---------------------
modifications and enhancements to the Adobe Software which are designed by Adobe
to correct or improve the performance of the Adobe Software and which are
generally provided free of charge to Adobe's OEM customers, but shall not
include
-3-
<PAGE>
Adobe Software with enhanced functionality marketed by Adobe as a separate
product.
1.13 Licensed System. "Licensed System" shall mean the Computer System,
---------------
CPSI Application Object and Coded Font Programs.
1.14 Other Adobe-Supplied Software. "Other Adobe-Supplied Software" shall
-----------------------------
mean any software, other than Adobe Software or Demonstration Program(s),
identified in a CPSI Application Appendix hereto and any updates or
modifications thereof delivered to OEM by Adobe during the term of Agreement.
1.15 PostScript Language Addendum. "PostScript Language Addendum" shall
----------------------------
mean a supplement to the Documentation for each Licensed System to be written by
OEM using the PostScript Language Addendum Template as a guide and with
technical content approved by Adobe, that describes the features specific to a
Licensed System and the means of accessing those features via the Adobe
Software.
1.16 PPD File. "PPD File" shall mean a human readable, machine
--------
parseable, PostScript printer description file containing device-specific
information as to how to invoke the features of a particular Licensed System, as
described in the "PostScript Printer Description File Specification" (which
specification is available from Adobe and subject to change by Adobe, in its
sole discretion, from time to time).
1.17 Subsidiary. "Subsidiary" shall mean any corporation, partnership or
----------
other entity as to which OEM (a) owns or controls, directly or indirectly, at
least fifty percent (50%) by nominal value or number of units of the outstanding
stock or of the outstanding stock conferring the right to vote at a general
meeting, or (b) has the right to elect a majority of the Board of Directors or
its equivalent, or (c) has the right, directly or indirectly, to appoint or
remove the management.
1.18 Trademark. "Trademark" shall mean the trademarks, if any, used by
---------
Adobe to identify the Coded Font Programs and Typefaces.
1.19 Typeface. "Typeface" shall mean a human readable set of glyphs,
--------
including letters of the alphabet, upper and/or lower case, the numerals 0-9
and additional special characters and punctuation marks as may be offered by
Adobe in conjunction with such letters and numerals of one typeface design and
identified in Exhibit C ("Coded Font Programs") hereto or in any CPSI
Application Appendix. Each weight or version of a single typeface design (such
as Roman or Italic or in an expanded or condensed form) marketed by Adobe as a
separate typeface will be considered a separate Typeface.
-4-
<PAGE>
2. LICENSE GRANTS.
--------------
2.1 License to Sublicense Certain Software and Documentation.
--------------------------------------------------------
2.1.1 Adobe Software. Adobe hereby grants to OEM a worldwide, non-
--------------
exclusive, non-transferable license, during the term of this Agreement (subject
to OEM's compliance with Paragraph 2.1.7 ("Limited Functional Scope of License")
---------------
through Paragraph 2.1.10 ("Protection Mechanisms"), Paragraph 4.3 ("Unauthorized
---------------- -------------
Distribution or Copying") and the other terms hereof), to use, and to reproduce
only at the locations listed in Exhibit D ("Reproduction Locations") hereto, as
---------
amended from time to time, and to Sublicense and distribute, directly and
indirectly, through OEM's usual distribution channels, copies of the object code
version of the Adobe Software only as part of a CPS Application Object for use
by End Users solely on or in conjunction with a Computer System comprising a
Licensed System, as described in a CPSI Application Appendix. Each copy of the
CPSI Application Object shall be licensed for use only on a single Computer
System. OEM agrees that any such distribution of the CPSI Application Object
shall include at a minimum the Roman Initial Installation Coded Font Programs,
as described in Exhibit C ("Coded Font Programs") hereto, or otherwise as
---------
specified in the applicable CPSI Application Appendix.
2.1.2 Coded Font Programs. Adobe hereby grants to OEM a worldwide,
-------------------
non-exclusive, non-transferable license, during the term of this Agreement
(subject to OEM's compliance with Paragraph 2.1.7 ("Limited Functional Scope of
---------------
License") through Paragraph 2.1.10 ("Protection Mechanisms"), Paragraph 4.3
---------------- -------------
("Unauthorized Distribution or Copying") and the other terms hereof), (a) to
use, and to reproduce only at the locations listed in Exhibit D ("Reproduction
---------
Locations") hereto, as amended from time to time, the Coded Font Programs
provided by Adobe and to sublicense and distribute, directly and indirectly,
through OEM's usual distribution channels, such Coded Font Programs to End
Users bundled with the OEM Application Object solely for use as part of a
Licensed System on the terms set forth herein; (b) to sublicense the Coded
Font Programs to End Users for the reproduction and display of Typefaces on
the applicable Licensed Systems; (c) to sublicense such End Users to reproduce
and display Typefaces on the applicable Licensed System on which the Typefaces
are licensed; (d) to use the Coded Font Programs to reproduce and display the
Typefaces on the applicable Licensed Systems for purposes of test, evaluation,
demonstration or development of applications; (e) to reproduce and display
Typefaces on the applicable Licensed Systems for purposes of test, evaluation,
demonstration or development of applications; and (f) to use and to sublicense
such End Users to use the Trademarks used by Adobe to identify the Coded Font
Programs. OEM's license under this Paragraph 2.1.2 with respect to any
---------------
particular Coded Font Program will terminate, and OEM shall no longer be
entitled to distribute the corresponding Coded Font Program, upon termination
of the agreement between Adobe and the owner of any Trademark, if any,
pertaining to such Coded Font Program.
-5-
<PAGE>
2.1.3 Demonstration Program(s). Adobe hereby grants to OEM a
------------------------
worldwide, non-exclusive, non-transferable license, during the term of this
Agreement (subject to OEM's compliance with Paragraph 2.1.7 ("Limited Functional
---------------
Scope of License") through Paragraph 2.1.10 ("Protection Mechanisms"), Paragraph
---------------- ---------
4.3 ("Unauthorized Distribution or Copying") and the other terms hereof), to use
- ---
the Demonstration Program(s) internally as a demonstration of how the Adobe
Software may be used and to modify and create derivative works with the
Demonstration Program(s), provided that any portion of the Demonstration
Program(s) which is included in any derivative work is distributed in object
code form only for use solely in conjunction with a Licensed System.
Modifications made by OEM to the Demonstration Program(s), but not the original
code supplied by Adobe hereunder, shall be the property of OEM; provided,
however, that any portion of the Demonstration Program(s) which is included in
any derivative work shall remain subject to the provisions of this Agreement.
2.1.4 PostScript Language Addendum Template. Adobe hereby grants
-------------------------------------
to OEM a non-transferable, non-exclusive license, during the term of this
Agreement and subject to the terms hereof, to use (but not reproduce) the single
copy of the PostScript Language Addendum Template ("Template") supplied by Adobe
to OEM hereunder solely as a guide for customizing and creating the PostScript
Language Addendum for a specific Licensed System.
2.1.5 Other Adobe-Supplied Software. Adobe hereby grants to OEM a
-----------------------------
non-exclusive, non-transferable license, during the term of this Agreement and
subject to the terms hereof, to use, and to reproduce only at the locations
listed in Exhibit D ("Reproduction Locations") hereto, the Other Adobe-Supplied
Software for the purpose specified in a CPSI Application Appendix hereto. If
the purpose specified in a CPSI Application Appendix contemplates OEM
distributing a portion or all of the Other Adobe-Supplied Software, then such
grant of a license by Adobe to OEM under this Paragraph shall include a non-
exclusive, non-transferable license to sublicense and distribute, directly and
indirectly, through OEM's usual distribution channels, copies of the object
code version of the Other Adobe-Supplied Software for use by End Users solely on
or in conjunction with a Computer System comprising a Licensed System, as
described in the applicable CPSI Application Appendix.
2.1.6 Nondisclosure. OEM agrees to disclose the Adobe Software,
-------------
Other Adobe-Supplied Software, Coded Font Programs and Demonstration Program(s)
and the Template only to authorized employees and independent contractors having
a need to use them as permitted by this Agreement and to take all measures
reasonably required to prevent disclosure to other parties. OEM agrees that it
will disclose the Adobe Software, Other Adobe-Supplied Software, Coded Font
Programs and Demonstration Program(s) and Template only to employees and
independent contractors with a need to know who have agreed in writing (i) not
to disclose the Adobe Software, Other Adobe-Supplied Software, Coded Font
Programs and Demonstration Program(s) and Template, (ii) to use the
-6-
<PAGE>
Adobe Software, Other Adobe-Supplied Software, Coded Font Programs and
Demonstration Program(s) and Template for the sole benefit of OEM and only as
permitted by this Agreement, and (iii) to take all reasonable precautions to
Prevent disclosure to other parties. OEM shall take prompt and appropriate
action to prevent unauthorized use or disclosure of Adobe Software. Other Adobe-
Supplied Software, Coded Font Programs and Demonstration Program(s) and Template
by such authorized employees and independent contractors.
2.1.7 Limited Functional Scope of License. The licenses granted
-----------------------------------
hereunder are limited to OEM's development and subsequent sublicensing Of CPSI
Application Object and Coded Font Programs and Other Adobe-Supplied Software, if
any, to be used to generate raster images on Computer Systems. These licenses
do not extend to the development or sublicensing of End User Software that is
used, directly or indirectly (a) to modify Coded Font Programs or Typefaces
other than to convert them to the disk-based representation of a Coded Font
Program, (b) to generate Coded Font Programs or Typefaces for use other than
with a CPSI Application Object licensed hereunder, (c) to control the output
from output devices other than those designated in the CPSI Application Appendix
(the "Designated Output Devices") or (d) to generate output for more than one
(1) Designated Output Device at a time unless OEM has issued an additional
license to the End User and paid Adobe an additional per copy royalty in the
amount specified in the applicable CPSI Application Appendix.
2.1.8 Subsidiaries of OEM. This Agreement applies to OEM and to
-------------------
any Subsidiaries of OEM which agree with OEM in writing to be bound by the terms
and conditions imposed on OEM hereunder. Notwithstanding the foregoing, OEM
agrees to make all payments due Adobe under the terms of this Agreement. OEM
agrees that reproduction of the CPSI Application Object and Coded Font Programs
will only be done by OEM or its Subsidiaries at the locations described in
Exhibit D ("Reproduction Locations"). The exercise of any right granted under
- ---------
this Agreement by any such Subsidiary is subject to OEM's guaranty of the
performance by such Subsidiary of all of OEM's obligations hereunder.
2.1.9 End User Licensing. OEM shall take all steps necessary to
------------------
ensure that each End User signs a copy of OEM's standard software license prior
to receipt of a copy of the CPSI Application Object or otherwise accepts the
CPSI Application Object subject to terms of a license agreement as described in
this Paragraph 2.1.9. The terms of such license will be drafted so as to apply
to the CM Application Object, Coded Font Programs and Other Adobe-Supplied
Software, if any. In addition, such license will include terms and conditions
substantially equivalent to those set forth in Exhibit E ("Minimum Terms of End
---------
User Agreement") to this Agreement. In the United States and in the other
jurisdictions where an enforceable copyright covering the CPSI Application
Object and Coded Font Programs exists, the software license specified above may
be a written agreement signed by the End User prior to or simultaneously with
the delivery of each copy of the CPSI Application Object, Other Adobe-Supplied
Software or any
-7-
<PAGE>
Coded Font Programs distributed by OEM, or a written agreement in the package
containing the CPSI Application Object, Other Adobe-Supplied Software and Coded
Font Programs or the user documentation for the CPSI Application Object, Other
Adobe-Supplied Software and Coded Font Programs that is fully visible to the End
User and that the End User accepts by opening the package. In all other
jurisdictions such software license must be a written agreement signed by the
End User. OEM agrees it shall be deemed to have materially breached this
Agreement if it (a) fails to use its best efforts to enforce the corresponding
provisions of End User Agreements set forth in Exhibit E ("Minimum Terms of End
---------
User Agreement"), (b) distributes versions of CPSI Application Object or other
software that facilitates End User violation of these limitations, or (c)
otherwise licenses End Users so as to expand the rights granted herein or reduce
the obligations required hereby.
2.1.10 Protection Mechanisms. OEM shall employ in conjunction with
---------------------
the CPSI Application Object and Coded Font Programs licensed hereunder, copy
protection, serialization, encryption or any other mechanism to restrict or
monitor unauthorized use of application software, as required by Adobe and as
specified in the applicable CPSI Application Appendix. If no standard for
protection is specified, OEM shall ensure that the CPSI Application Object and
Coded Font Programs are encrypted, and, in the case of Other Coded Font Programs
for Japanese Typefaces, copy protected as well.
2.2 [*]
2.3 Conveyance of License Only. This Agreement grants OEM a license to
--------------------------
the Adobe Information only and only such rights as are specifically enumerated
herein. No other right, title, or interest in the Adobe Information is hereby
conveyed to OEM.
2.4 Similar Products. OEM acknowledges that Adobe is currently, and will
----------------
in the future, develop and acquire other software, including software based on
the Adobe Software, that such existing or planned software independently
developed or acquired by Adobe may contain ideas and concepts similar to those
in the CPSI Application; and that, over time, Adobe's employees may gain
familiarity, pursuant to this Agreement, with such general concepts and ideas.
Therefore, OEM agrees that Adobe shall not be precluded from developing
acquiring or distributing software or other products containing such ideas and
concepts for any purpose, without obligation to OEM.
-8-
[*] Confidential Treatment Requested.
<PAGE>
2.5 Reverse Engineering. OEM agrees that it will not reverse engineer,
-------------------
reverse compile, disassemble or otherwise attempt to create source code which is
derived from the Adobe Software, Other Adobe-Supplied Software or Coded Font
Programs or Demonstration Program(s) provided in object code form. OEM further
agrees that the object code version of the Adobe Software licensed from Adobe is
intended to be used as an integral part of the CPSI Application to be developed
by OEM and OEM will take all reasonable precautions to prevent Its customers
from extracting the Adobe Software from the CPSI Application with which it is
combined and distributed.
3. DEVELOPMENT, DELIVERY AND ACCEPTANCE.
------------------------------------
3.1 Agreement on Future CPSI Applications. The parties agree that the
-------------------------------------
Adobe Software may be licensed for use with-other application programs or in
other computer environments upon the mutual agreement of OEM and Adobe under the
terms of a fully executed CPSI Application Appendix in a form similar to
Exhibit F ("Sample Form of CPSI Application Appendix") hereto.
- ---------
3.2 Adobe Software Development. Adobe shall use its best efforts to
--------------------------
develop and modify the Adobe Software for use as part of the CPSI Application in
the Computer System environment specified in the applicable CPSI Application
Appendix, subject to the following limitations. If Adobe determines that it b
not technically feasible to develop the Adobe Software for the particular CPSI
Application specified in the applicable CYST Application Appendix, OEM's sole
and exclusive remedy shall be to terminate the development of the Adobe Software
for such CPSI Application and to obtain a refund of that portion of the software
license fee, if any, paid by OEM to Adobe under Paragraph 7.1 ("CPST Application
-------------
Payments") below for such CPSI Application, as specified in the applicable CPSI
Application Appendix I provided that OEM has returned all existing copies of the
Adobe Software for such CPSI Application and certified in writing that it has no
right to use or distribute such Adobe Software.
3.3 Custom Product Development. If OEM requests a custom product
--------------------------
development from Adobe (i.e. a product that requires Adobe to develop a version
of the Adobe Software that is not then a current product offering of Adobe),
Adobe and OEM will negotiate the business terms of this custom development,
including without limitation, the scope of work, technical specification,
pricing and milestone schedule, and if the parties can agree, the terms of such
agreement will be set forth in a non-standard form of a CPSI Application
Appendix to be executed by the parties and made a part of this Agreement.
3.4 OEM-Loaned Equipment and Related Materials.
------------------------------------------
3.4.1 OEM-Loaned Equipment. Concurrent with, or promptly after,
--------------------
the effective date of any CPSI Application Appendix hereto, OEM shall provide
Adobe with the software, equipment and documentation, if any, set forth in the
-9-
<PAGE>
applicable CPSI Application Appendix, to be used by Adobe for testing the CPSI
Application Object in accordance with Paragraph 3.8.2 ("Adobe Testing") below.
---------------
OEM shall also promptly provide Adobe with any other software, equipment, and
documentation necessary for Adobe to perform development or warranty services
for OEM hereunder or to provide maintenance services to OEM under a Continuing
Support Agreement (collectively "OEM-Loaned Equipment"). All OEM-Loaned
Equipment will be returned to OEM at its request after termination of Adobe's
development, testing, warranty and maintenance activities hereunder. All
OEM-Loaned Equipment shall remain the property of OEM. OEM shall pay shipping
costs for delivery of the OEM-Loaned Equipment to Adobe. Any OEM-Loaned
Equipment shall be returned to OEM by Adobe, shipping and insurance costs
prepaid by OEM. While in the possession of Adobe, the OEM-Loaned Equipment
shall be maintained by OEM in good working order and shall be fully insured by
Adobe. Any delays in maintaining the OEM-Loaned Equipment by OEM shall result
in corresponding delays in the milestone schedule for the applicable CPSI
Application Appendix.
3.4.2 OEM Technical Contract. OEM agrees to designate in the
----------------------
particular CPSI Application Appendix a technically qualified person to respond
to information requests by Adobe who, when so requested by Adobe, shall use his
or her best efforts to respond within two (2) working days of receipt of such
request.
3.5 PPD File. OEM shall also create and deliver to Adobe one (1) master
--------
copy of the PPD File for each Licensed System at the time OEM provides a beta
version of the CPSI Application Object to Adobe for testing under Paragraph
---------
3.8.2 ("Adobe Testing") and any updated version thereof in a timely manner
- -----
following the availability of any updated version. OEM shall include with each
licensed System a copy of the corresponding PPD File.
3.6 Adobe Deliverables. Adobe will provide OEM with one (1) master copy
------------------
of the Adobe Software for each CPSI Application, the Other Adobe-Supplied
Software, if any, the Coded Font Programs and the Demonstration Program(s) in
accordance with the milestones set forth in the applicable CPSI Application
Appendix hereto, and one copy of the Documentation to be delivered by Adobe to
OEM under the provisions of a CPSI Application Appendix.
3.7 OEM Modification; Adobe Assistance. OEM shall be responsible for
----------------------------------
producing the CPSI Application Object fully adapted to the applicable Licensed
System and suitable for distribution to End Users. Adobe's sole responsibility
in connection with such modification shall be to provide OEM, at no charge, with
eight (8) person hours of technical assistance (or such other quantity as is
specified in the applicable CPSI Application Appendix) to familiarize OEM
personnel with the operation of the Adobe Software. All such assistance will be
provided at Adobe's headquarters facilities in California, or such other
facility as specified in the applicable CPSI Application Appendix.
-10-
<PAGE>
3.8 Testing. [*]
-------
3.8.1 [*]
3.8.2 [*]
[*] Confidential Treatment Requested.
-11-
<PAGE>
3.9 [*]
4. PROPRIETARY RIGHTS.
------------------
4.1 Adobe Ownership. OEM acknowledges that Adobe and its suppliers are
---------------
the sole and exclusive owners of all rights, title and interest, including all
trademarks, copyrights, patents, trade names, trade secrets and other
intellectual property rights to the Trademarks and Adobe Trademarks, logos, and
product names, and to all of the documentation and computer-recorded data
comprising or included in the Adobe Information. Except for the rights
expressly enumerated herein, OEM is not granted any rights to patents,
copyrights, trade secrets, trade names, trademarks, or any other rights,
franchises or licenses with respect to the Adobe Information.
4.2 Adobe Trade Secrets. OEM agrees that the Demonstration Program(s) in
-------------------
source code form and those techniques, algorithms, and processes contained in
the Adobe Software, Other Adobe-Supplied Software, Coded Font Programs and
Demonstration program(s) and the information contained in the Template which
have been developed, acquired or licensed by Adobe, or any modification or
extraction thereof, constitute trade secrets of Adobe or its suppliers, and will
be used by OEM only in accordance with the terms of this Agreement. In
[*] Confidential Treatment Requested.
-12-
<PAGE>
addition to the specific measures required hereunder, OEM shall take all
measures reasonably required to protect the proprietary rights of Adobe and its
suppliers in the Adobe Information. Failure to protect the proprietary rights of
Adobe and its suppliers in the Adobe Information, as required by this Agreement,
will be considered a material breach of this Agreement.
4.3 Unauthorized Distribution or Copying. OEM agrees that (a)
------------------------------------
distribution, copying, duplicating or otherwise reproducing all or any part of
the Adobe Software, Other Adobe-Supplied Software, Demonstration Program(s),
Coded Font Programs or Documentation (except as expressly permitted by this
Agreement), (b) distributing copies of all or any portion of the Adobe Software,
Other Adobe-Supplied Software, Demonstration Program(s) or Coded Font Programs
other than in the form of royalty-bearing End User products, or (c) distributing
the CPSI Application Object for use on other than a Computer System, will be
considered a material breach of this Agreement.
4.4 No Modifications. OEM agrees that it shall not make any
----------------
modifications of definitions in the PostScript language as specified in the
Documentation by altering or extending the function of the Adobe Software;
however, should OEM wish to add custom PostScript operators, OEM must
define them in a separate custom dictionary included with the CPSI Application
and provide documentation that clearly specifies that these operators are not
part of the PostScript language as specified in the Documentation.
5. TERM OF AGREEMENT.
-----------------
The initial term of this Agreement is for [*] from the effective
date of this Agreement, unless earlier terminated as provided in this Agreement.
Thereafter, this Agreement may be renewed on its anniversary dates, at the
option of either party, subject to the written agreement of the other party,
provided that [*].
6. EXPORT. OEM shall not knowingly, without prior authorization, if required, of
------
the Office of Export Administration ("OEA"), export or re-export (as defined in
Section 779.1(b)-(c) of the Export Administration Regulations - and any
amendments thereto) to Afghanistan, the People's Republic of China or to any
Group Q, S, W, Y or Z country specified in Supplement No. 1 to Section 779 of
the Regulations as amended from time to time (i) any Adobe Information or (ii)
the immediate product (including processes and services) produced directly by
use of any Adobe Information. The provisions of this Paragraph shall survive
notwithstanding any cancellation, termination or expiration of this Agreement.
-13-
[*] Confidential Treatment Requested.
<PAGE>
7. PAYMENTS.
--------
7.1 CPSI Application Payments. OEM shall pay Adobe in U.S. Dollars the
-------------------------
software license fees and per copy royalties set forth in each CPSI Application
Appendix hereto. OEM shall pay Adobe a separate fee for each copy of the CPSI
Application Object which OEM distributes or uses internally.
7.2 Coded Font Program Royalties. OEM shall also pay to Adobe the
----------------------------
royalties for the Roman Initial Installation Coded Font Programs, Roman if an
Additional Coded Font Programs, if any, and Other Coded Font Programs, if any,
distributed with each CPSI Application Object, in the amount specified in the
applicable CPSI Application Appendix hereto.
7.3 Other Payments. Certain other payments to Adobe, including but not
--------------
limited to advances against royalties, will be designated in the specific CPSI
Application Appendix. Advances against royalties for a specified CPSI
Application are recoupable only against royalties for that CPSI Application
during the eighteen (18) month period following Adobe's test and acceptance of
the CPSI Application Object for that Licensed System, as defined in the
applicable CPSI Application Appendix.
7.4 Taxes. In addition to any other payments due under this Agreement,
-----
OEM agrees to pay, and to indemnify and hold Adobe harmless from, any sales,
use, excise, import or export, value added or similar tax or duty not based on
Adobe's net income, including any penalties and interest, as well as any costs
associated with the collection or withholding thereof, and all governmental
permit fees, license fees and customs and similar fees levied upon the delivery
by Adobe of the Adobe Software and Coded Font Programs or other deliverables to
OEM hereunder, which Adobe may incur in respect of this Agreement. If a resale
certificate or other certificate or document of exemption is required in order
to exempt all or any of the Adobe Software, Coded Font Programs or other
deliverables from any such tax liability, OEM will promptly furnish it to Adobe.
7.5 Payment of Royalties. All royalties due in accordance with the terms
--------------------
of this Agreement shall be paid in U.S. Dollars within 30 days after the end of
each calendar quarter. With each royalty payment OEM shall include a written
summary, broken out by month of sale and country categories (U.S., Canada,
Europe, Far East, Rest of World), of (a) the number of copies and types of CPSI
Application Object distributed or used internally by OEM during the quarter; (b)
the number of copies and types of Roman and Other Coded Font Programs, by
Typefaces, bundled with the CPSI Application Object for use as a part of a
Licensed System and licensed to End Users or used internally by OEM during the
quarter; and (c) any other information which may be required to determine
whether OEM is paying the correct royalty amount hereunder. Copies of CPSI
Application Object which are returned for which refunds are made or a credit is
issued by OEM shall be credited by OEM against royalties due to Adobe for such
copies of USI Application
-14-
<PAGE>
Object; provided however, that in the event OEM provided a partial refund (or
credit) of the price of a returned CPSI Application, OEM shall be entitled to
obtain a corresponding partial credit against royalties due for such CPSI
Application Object. At Adobe's request, OEM shall orally advise Adobe each month
of its estimate of the number of copies of the CPSI Application Object and Coded
Font Programs shipped or used internally by OEM during the previous month and
the royalties accrued thereby. Such oral communication shall be subject to
adjustment by OEM at the end of each accounting period.
7.6 When Royalties Are Earned. All royalties due hereunder be earned on
-------------------------
the date OEM ships the CPSI Application Object to its customer, except that in
the event of shipment of CPSI Application Object as between OEM and its
Subsidiary or as between such Subsidiaries for resale, such royalties shall be
earned when the CPSI Application Object is first shipped to a customer other
than OEM and any such Subsidiaries.
7.7 Right of Audit. OEM shall maintain a complete, dear, accurate record
--------------
of: (a) the number of copies and types of CPSI Application Object distributed
or used internally by OEM during the quarter; (b) the number of copies and types
of Roman and Other Coded Font Programs, by Typefaces, bundled with the CPSI
Application Object for use as part of a Licensed System and licensed to End
Users or used internally by OEM during the quarter; and (c) any other
information which may be required to determine whether OEM is paying the correct
royalty amount hereunder. To ensure compliance with the terms of this Agreement,
Adobe shall have the right to conduct an inspection and audit of all the
relevant accounting and sales books and records of OEM during regular business
hours at OEM's offices and in such a manner as not to interfere with OEM's
normal business activities. In no event shall audits be made hereunder more
frequently than every six (6) months. If such inspections should disclose any
underreporting, OEM shall promptly pay Adobe such amount, together with interest
thereon at the rate of 1 1/2% per month or the highest interest rate allowed by
law, whichever is lower, from the date on which such amount became due.
7.8 ITC Typefaces. Distribution of Coded Font Programs for any
-------------
International Typeface Corporation ("IM") Typefaces licensed from Adobe for any
Licensed System that includes a marking engine with maximum resolution exceeding
900 dots per inch or that outputs onto any silver based substrate (eg.
photographic medium) other than a 35 millimeter transparency ("High Resolution
Output Device") requires execution of a written agreement between OEM and ITC
which sets forth the royalties, if any, due directly to ITC from OEM (the "ITC
License Agreement"). These royalties to ITC are in addition to the royalties
due to Adobe for the distribution of Coded Font Programs for ITC Typefaces under
the terms of this or any other Agreement between Adobe and OEM. If OEM wants to
implement the Coded Font Programs for ITC Typefaces licensed from Adobe on any
High Resolution Output Device, OEM agrees to provide Adobe a written
certification that
-15-
<PAGE>
OEM has executed an ITC License Agreement within sixty (60) days of execution of
a CPSI Application Appendix covering such a High Resolution Output Device.
8. OEM SUPPORT. OEM will have the sole responsibility for supporting End Users
-----------
and will provide End Users with reasonable end user documentation, warranty
service, and telephone support or other electronic support for the use of the
Adobe Software and Coded Font Programs included as part of a CPSI Application.
9. COPYRIGHT AND OTHER NOTICES.
---------------------------
9.1 Copyright Notices. In order to protect Adobe's copyright and other
-----------------
ownership interests, OEM agrees that, as a condition of its rights hereunder, it
will cause to be preserved in each copy of all or any portion of the Adobe
Software, Other Adobe-Supplied Software, Demonstration Program(s), Coded Font
Programs and any Documentation reproduced by it hereunder, the same proprietary
notices which appear on or in the Adobe Software, Other Adobe-Supplied Software,
Demonstration Program(s), Coded Font Programs and Documentation delivered by
Adobe to OEM hereunder or such other proprietary notices as Adobe may reasonably
require from time to time. OEM agrees that valid copyright notices for the Adobe
Software and Coded Font Programs will appear on the media. In addition, a valid
Adobe copyright notice in the following format, or such other format as Adobe
specifies by written notice to OEM, shall be displayed on the single user screen
of the Computer System, or in some other manner consented to in writing by
Adobe, when the CPSI Application Object is first invoked during an End User
session:
(a) the name of the program,
(b) the word "Copyright" and the circled-c symbol(C),
(c) the date of first publication of the Adobe Software, and
(d) the name of the copyright owner and the words "All Rights
Reserved".
9.2 Restricted Rights. OEM will (a) identify as developed with private
-----------------
industry funds the CPSI Application Object, Other Adobe-Supplied Software, Coded
Font Programs and related documentation in all proposals and agreements with the
United States Government or any contractor therefor; and (b) legend or mark the
CPSI Application Object, Other Adobe-Supplied Software, Coded Font Programs and
related documentation provided pursuant to any agreement with the United States
Government or any contractor therefor, as follows:
(a) For acquisition by or on behalf of civilian agencies, as
necessary to obtain protection substantially equivalent to that afforded to
-16-
<PAGE>
commercial computer software and related documentation developed at private
expense and which is existing computer software no part of which was developed
with government funds and provided with Restricted Rights in accordance with
subparagraphs (a) through (d) of the "Commercial Computer Software Restricted
Rights" clause at section 52.227-19 of the Federal Acquisition Regulations and
its successors;
(b) For acquisition by or on behalf of units of the Department of
Defense ("DoD") as necessary to obtain protection substantially equivalent to
that afforded to commercial computer software and related documentation
developed at private expense and provided with Restricted Rights as defined in
DoD FAR Supplement 48 C.F.R. 252.227-7013(c)(1)(ii) and its successors in effect
for all solicitations and resulting contracts issued on or after May 18, 1987.
9.3 Foreign Government Agreements. OEM will take all reasonable steps in
-----------------------------
making proposals and agreements with foreign governments other than the United
States which involve the CPSI Application Object, Other Adobe-Supplied Software,
Coded Font Programs and related Documentation to ensure that Adobe's proprietary
rights in the Adobe Software, Other Adobe-Supplied Software, Coded Font Programs
and related Documentation receive the maximum protection available from such
foreign government for commercial computer software and related documentation
developed at private expense.
10. LICENSE TO USE ADOBE TRADEMARKS: NONGENERIC ADVERTISING.
-------------------------------------------- -----------
10.1 Trademark License. Adobe hereby grants to OEM a nonexclusive,
-----------------
limited license to use the Adobe Trademarks on the CPSI Application Object and
in OEM's advertising and printed materials for the CPSI Application Object and
Coded Font Programs, provided that OEM displays the following notices of
trademark status adjacent to and with the first or most prominent use of the
Adobe Trademark in each piece of advertising or printed materials in which such
Adobe Trademark appears and includes the respective legends adjacent to or as a
footnote to the Adobe Trademarks as follows:
(i) "Adobe(TM)": "Adobe is the trademark of Adobe Systems
Incorporated which may be registered in certain jurisdictions";
(ii) "PostScript(TM)": "PostScript is the trademark of Adobe
Systems Incorporated which may be registered in certain jurisdictions; and
(iii) such other symbols and notices as may be prescribed by Adobe
from time to time.
OEM agrees not to use any other trademark or service mark in close
proximity to any of the Adobe Trademarks or combine the marks so as to
effectively
-17-
<PAGE>
create a unitary composite mark without the prior written approval
of Adobe. OEM agrees not to use any other name or trademarks for the Coded Font
Programs except for the name or trademarks used by the Trademark Owner as set
forth in Exhibit C ("Coded Font Programs") hereto, or in a CPSI Application
---------
Appendix OEM will comply with all of the terms in this Paragraph 10.1 in its
--------------
catalogs, advertising, packaging, and promotional materials relating to or
including Coded Font Programs.
10.2 Ownership of Trademarks. OEM acknowledges the ownership of the
-----------------------
Adobe Trademarks and Trademarks in Adobe and Its suppliers, agrees that it will
do nothing inconsistent with such ownership, agrees to use reasonable effort to
preserve Adobe's and its suppliers' rights in the Adobe Trademarks and
Trademarks, and that all uses of the Adobe Trademarks and the Trademarks by OEM
shall inure to the benefit of and be on behalf of Adobe and its suppliers. OEM
acknowledges that the Trademarks and Adobe Trademarks are valid under applicable
law and that OEM's utilization of the Trademarks and Adobe Trademarks will not
create any right, title or interest in or to such Trademarks or Adobe
Trademarks. OEM acknowledges the respective exclusive rights of Adobe and the
Trademark Owners (as defined below) to use of the Adobe Trademarks and
Trademarks and agrees not to do anything contesting or impairing the trademark
rights of Adobe or its suppliers. Any use of the Trademarks must identify the
applicable "Trademark Owner" set forth in Exhibit C ("Coded Font Programs")
---------
hereto, or the applicable CPSI Application Appendix, as the owner of such
Trademarks. OEM agrees to notify or require notification of sublicensees who
receive Coded Font Programs that (i) Trademarks can only be used to identify
printed output produced by the Coded Font Programs, and (ii) the Trademarks are
the property of the Trademark Owners. OEM will maintain a high quality standard
in producing copies of the CPSI Application Object, Coded Font Programs and
Typefaces. At the request of Adobe, OEM must supply samples of any Typeface
identified by a Trademark.
10.3 Quality Standards. OEM agrees that the nature and quality of the
-----------------
Licensed System, CPSI Application Object, Coded Font Programs and any other
products or services it supplies in connection with its use of the Adobe
Trademarks shall conform to the standards set by Adobe. OEM agrees to cooperate
with Adobe in facilitating Adobe's monitoring and control of the nature and
quality of such OEM products and services and to supply Adobe with specimens of
use of the Trademarks and Adobe Trademarks upon request. If, at any time, Adobe
determines that the OEM has not met or is not meeting the Adobe quality
standards, Adobe shall so advise OEM and, upon OEMS receipt of such notice by
any means, OEM shall have sixty (60) days to improve the quality to the standard
previously approved by Adobe. OEM shall comply with all applicable laws,
Regulations and customs and obtain all appropriate government approvals
pertaining to use of trademarks and trade names and to the sublicensing
distribution and advertising of the CPSI Application Object, Coded Font Programs
and Documentation hereunder.
-18-
<PAGE>
10.4 Infringement Proceedings. OEM agrees to notify Adobe of any
------------------------
unauthorized use of the trademarks or Adobe Trademarks by others promptly as it
comes to OEM's attention. Adobe shall have the sole right and discretion to
bring infringement or unfair competition proceedings involving the Trademarks or
Adobe Trademarks.
10.5 OEM's Use of Trademarks. OEM agrees that it will include the Adobe
-----------------------
Trademarks on all copies of the CPSI Application Object and in any advertising
or printed materials concerning the CPSI Application Object and that it will use
the applicable Trademarks and Adobe Trademarks on all copies, advertisements,
brochures, manuals or other appropriate uses made in the promotion, distribution
or use of the CPSI Application Object Coded Font Programs and Licensed Systems.
OEM shall make specific reference to PostScript(TM) software from Adobe in any
advertisement which refers to the CPSI Application.
10.6 Trademark Registrations. OEM, at Adobe's request, shall (i)
-----------------------
promptly provide Adobe with any specimens, (ii) execute all applications for
trademark registrations, assignments, or other applicable documents, and (iii)
perform any other act reasonably necessary for Adobe or any Trademark Owner to
secure or maintain any and all Adobe Trademark or Trademark rights in any
country in which OEM is marketing the CPSI Application Object, Coded Font
Programs and licensed Systems.
11. WARRANTIES.
----------
11.1 Infringement.
------------
(a) By Adobe. Adobe agrees to defend and otherwise hold OEM
--------
harmless from all costs, damages and reasonable attorneys' fees resulting from
claims by third parties that uses permitted hereunder of the Adobe Software
infringe any U.S. patents or U.S. copyrights, or the use of the Adobe Trademarks
"Adobe" and "PostScript" (as applied to the Adobe Software) infringes any US.
trademarks, provided that OEM gives Adobe prompt written notice of any such
claim, tenders to Adobe the defense or settlement of such a claim, at Adobe's
expense, and cooperates with Adobe, at Adobe's expense, in defending or settling
such claim. If Adobe receives notice of an alleged infringement or if OEM's use
of the Adobe Software shall be prevented by permanent injunction, Adobe may, at
its sole option and expense, procure for OEM the right to continued use of the
Adobe Software or the Adobe U.S. trademarks "Adobe" and "PostScript" as provided
hereunder, modify the Adobe Software so that it no longer infringes, replace the
Adobe Software with computer software of equal or superior functional
capability, or in the case of trademark infringement, instruct OEM to use an
alternative trademark. THE RIGHTS GRANTED TO OEM UNDER THIS PARAGRAPH SHALL BE
OEM'S SOLE AND EXCLUSIVE REMEDY AND ADOBE'S SOLE OBLIGATION FOR ANY ALLEGED
INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER
PROPRIETARY RIGHT. ADOBE WILL HAVE NO
-19-
<PAGE>
LIABILITY TO OEM IF ANY ALLEGED INFRINGEMENTS OR CLAIM THEREOF IS BASED UPON (A)
THE USE OF THE ADOBE SOFTWARE IN CONNECTION OR IN COMBINATION WITH EQUIPMENT,
DEVICES, OR SOFTWARE NOT DELIVERED BY ADOBE (IF SUCH INFRINGEMENT OR CLAIM COULD
HAVE BEEN AVOIDED BY THE USE OF THE ADOBE SOFTWARE WITH OTHER EQUIPMENT, DEVICES
OR SOFTWARE), (B) THE USE OF ANY ADOBE SOFTWARE OTHER THAN AS PERMITTED UNDER
THIS AGREEMENT OR IN A MANNER FOR WHICH IT WAS NOT INTENDED OR USE OF MOST
CURRENT RELEASE OF THE ADOBE SOFTWARE (AND SUCH CLAIM WOULD HAVE BEEN PREVENTED
BY THE USE OF SUCH RELEASE) OR (C) ANY MODIFICATIONS MADE TO THE ADOBE SOFTWARE
BY OEM OR AMY THIRD PARTY (IF SUCH CLAIM WOULD HAVE BEEN AVOIDED BY THE USE OF
THE UNMODIFIED ADOBE SOFTWARE).
(b) By OEM. OEM agrees to defend and otherwise hold Adobe
------
harmless from all costs, damages and reasonable attorneys, fees resulting from
all claims by third parties arising from the use, manufacture and distribution
of the CPSI Application Object by OEM and its direct and indirect customers in
any country, worldwide, provided that Adobe gives OEM prompt written notice of
any such claim, tenders to OEM the defense or settlement of any such claim, at
OEM's expense, and cooperates with OEM, at OEM's expense, in defending or
settling such claim. OEM WILL HAVE NO LIABILITY TO ADOBE IF ANY ALLEGED PATENT
OR COPYRIGHT INFRINGEMENTS OR CLAIM THEREOF ARISE SOLELY AS A RESULT OF THE
CONTENT OF THE ADOBE SOFTWARE.
11.2 Adobe Software Warranty. If (a) the Adobe Software for a CPSI
-----------------------
Application licensed hereunder fails to perform substantially in accordance with
the Documentation in the Development Environment (as specified in the CPSI
Application Appendix for such CPSI Application) from the date on which Adobe
delivers the Adobe Software to OEM and ending one (1) year thereafter (the
"Warranty Period"); (b) such failure is reproducible; and (c) such failure is
reported to Adobe by OEM during the Warranty Period, then Adobe shall, at its
expense, provide a workaround for such failure or, at Adobe's option, provide
OEM with an updated version of the Adobe Software which does not cause such
failure. This warranty shall not apply to any software modified by OEM or any
third party, or to any failure caused by hardware or software not provided by
Adobe. If OEM reports a failure to Adobe, and Adobe reasonably determines that
such failure was not caused by the Adobe Software, then Adobe shall have no
further obligations with respect to such report, and OEM agrees to pay Adobe's
reasonable costs in making such determination.
11.3 Limitations on Warranties. The foregoing warranties by Adobe are
-------------------------
made only to OEM and OEM shall be solely responsible for any warranty to, or
claims by, its distributors or end user customers concerning the Adobe Software.
THE FOREGOING STATES ADOBE'S SOLE AND EXCLUSIVE OBLIGATION TO OEM FOR BREACH OF
WARRANTY. EXCEPT FOR THE EXPRESS
-20-
<PAGE>
WARRANTIES STATED IN THIS AGREEMENT, ADOBE MAKES NO ADDITIONAL WARRANTIES,
EXPRESS, IMPLIED OR STATUTORY, AS TO ANY MATTER WHATSOEVER. IN PARTICULAR, ANY
AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE
EXPRESSLY EXCLUDED. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, ADOBE
EXPRESSLY EXCLUDES ANY AND ALL WARRANTIES OF NONINFRINGEMENT. THIS IS A LIMITED
WARRANTY AND IS THE ONLY WARRANTY MADE BY ADOBE. OEM SHALL NOT HAVE THE RIGHT TO
MAKE OR PASS ON, AND SHALL TAKE ALL MEASURES NECESSARY TO ENSURE THAT NEITHER IT
NOR ANY OF ITS AGENTS OR EMPLOYEES SHALL MAKE OR PASS ON ANY SUCH WARRANTY OR
REPRESENTATION ON BEHALF OF ADOBE TO ANY CUSTOMER, END USER OR THIRD PARTY.
12. INTERNAL IMPROVEMENTS; CONTINUING SUPPORT.
-----------------------------------------
12.1 Internal Improvements. Adobe will notify OEM when Internal
---------------------
Improvements to the Adobe Software become available, and thereafter, if it
receives a written request from OEM, it will provide OEM with such Internal
Improvements without charge. OEM may distribute such Internal Improvements to
licensed End Users who have paid the applicable per copy royalties for use with
previously distributed copies of the CPSI Application Object without payment of
additional royalties. Such Internal Improvements do not include modifications,
enhancements, or other software products for which Adobe charges separately or
which Adobe provides only to customers receiving Continuing Support services.
12.2 Continuing Support. Following expiration of the Warranty Period,
------------------
Adobe will provide continuing support services to OEM in accordance with its
standard Continuing Support Agreement, once executed by the parties, at its then
current OEM rate for such services. OEM agrees that all contact regarding
warranty and Continuing Support services shall be handled through a designated
person from OEM who shall direct requests for Continuing Support services
through Adobe's designated technical contact. For purposes of the Continuing
Support Agreement, "Licensed System" shall mean the Adobe Software and Coded
Font Programs.
13. CANCELLATION.
------------
13.1 Cancellation by Adobe for Cause. If any material breach of this
-------------------------------
Agreement by OEM continues after thirty (30) days written notice of the breach
by Adobe to OEM, Adobe may terminate this Agreement on written notice to OEM.
13.2 Cancellation by OEM for Cause. If any material breach under this
-----------------------------
Agreement by Adobe continues after thirty (30) days written notice of the breach
by OEM to Adobe, OEM may seek any damages arising under this Agreement, and (a)
continue this Agreement in full force and effect, or (b) terminate this
Agreement on written notice to Adobe.
-21-
<PAGE>
13.3 Bankruptcy. In addition to any material breach of this Agreement,
----------
the application for, or adjudication in, bankruptcy by OEM, or dissolution of
OEM shall terminate this Agreement.
13.4 Obligations on Cancellation, Termination or Expiration. Upon
------------------------------------------------------
cancellation, termination, or expiration of this Agreement.
13.4.1 Safeguarding of Trade Secrets. OEM shall continue to be
-----------------------------
responsible for safeguarding the trade secrets and proprietary rights of Adobe
in accordance with the terms of this Agreement after such cancellation,
termination or expiration.
13.4.2 Return of Proprietary Information. Subject to Paragraph
--------------------------------- ---------
13.4.6 ("Continued Support") below, OEM shall erase, destroy or return to Adobe
- ------
all of Adobe's proprietary information in its possession upon Adobe's request,
OEM shall warrant in writing its return or destruction of Adobe's proprietary
information within thirty (30) days of cancellation, termination, or expiration.
13.4.3 OEM's Return of Adobe Softwares. Subject to Paragraph 13.4.6
------------------------------- ----------------
("Continued Support") below, OEM shall immediately discontinue use and
distribution of, and return or destroy all copies of, the CPSI Application and
Coded Font Programs in its possession (including copies placed in any storage
device under OEM's control). OEM shall not retain any whole or partial copies
of the Demonstration Program(s) in source or object code form.
13.4.4 End Users. End Users shall be permitted the continued and
---------
uninterrupted use of the CPSI Application Object and Coded Font Programs for the
balance of the term of their End User agreements, as specified in such
agreements, provided that and so long as the End Users are not in default of
their End User agreements.
13.4.5 Default by End Users. OEM's rights upon default of an End
--------------------
User relating to the CPSI Application Object and Coded Font Programs, as
specified in the End User agreement, shall automatically be assigned to Adobe to
the extent relevant to the enforcement by Adobe of the proprietary rights of
Adobe and/or its suppliers in the Adobe Software and Coded Font Programs.
13.4.6 Continued Support. OEM shall have the right to retain five
-----------------
(5) copies of the CPSI Application Object and Coded Font Programs and use such
CPSI Application Object and Coded Font Programs to the extent required for
support and maintenance purposes but OEM shall have no right to sublicense or
otherwise distribute the CPSI Application Object or Coded Font Programs or any
other rights with respect to such software except as specifically set forth in
this Paragraph 13.4.6.
----------------
-22-
<PAGE>
13.4.7 Payment. Unless OEM has terminated this Agreement for cause,
-------
the payment date of all monies due Adobe shall automatically be accelerated so
that they shall become due and payable on the effective date of termination,
even if longer terms had been provided previously.
14. LIMITATION OF LIABILITY. NEITHER ADOBE NOR ANY OF ITS OFFICERS, DIRECTORS,
-----------------------
EMPLOYEES, AFFILIATES, OR AGENTS SHALL BE LIABLE TO OEM OR TO ANY THIRD PARTY
FOR ANY LOSS OF USE, LOSS OF GOODWILL, INTERRUPTION OF BUSINESS, OR FOR INDIRECT
INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST REVENUES OR
PROFITS) OR SIMILAR DAMAGES, WHETHER BASED ON TORT(INCLUDING WITHOUT LIMITATION,
NEGLIGENCE OR STRICT LIABILITY), CONTRACT, OR OTHER LEGAL OR EQUITABLE GROUNDS,
EVEN IF ADOBE HAS BEEN ADVISED OR HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH
DAMAGES AND EVEN IN THE EVENT OF FAILURE OF EXCLUSIVE REMEDIES. THE FOREGOING
LIMITATION OF LIABILITY IS INDEPENDENT OF ANY EXCLUSIVE REMEDIES FOR A BREACH OF
WARRANTY SET FORTH IN THIS AGREEMENT.
15. GENERAL.
-------
15.1 Governing Law. This Agreement shall be governed in all respects by
-------------
the laws of the United States of America and the State of California as such
laws are applied to agreements entered into and to be performed entirely within
California between California residents. The parties agree that the United
Nations Convention on Contracts for the International Sale of Goods is
specifically excluded from application to this Agreement.
15.2 Notices. All notices or reports permitted or required under this
-------
Agreement shall be in writing and shall be delivered by personal delivery,
telegram, telex, telecopier or facsimile transmission or by registered mail,
return receipt requested, and shall be deemed given upon personal delivery or
five (5) days after deposit in the mail or upon acknowledgment of receipt of
electronic transmission. Notices shall be sent to: (i) the contract
representative designated in the specific CPSI Application Appendix if the
notice or report relates to one or more specific CPSI Applications and (ii) a
copy to the signatory of this Agreement at the address set forth at the end of
this Agreement or such other address as either party may specify in writing as
well as a copy to the parties General Counsel at the same address. Notices shall
be effective upon receipt, unless otherwise specified in such notice or in this
Agreement.
15.3 Injunctive Relief. It is understood and agreed that,
-----------------
notwithstanding any other provisions of this Agreement, breach of the provisions
of this Agreement by OEM will cause Adobe irreparable damage for which recovery
of money damages would be inadequate, and that Adobe shall therefore be entitled
to obtain timely injunctive relief in a court of competent jurisdiction to
protect
-23-
<PAGE>
Adobe's rights under this Agreement in addition to any and all remedies
available at law. Because of the unique and proprietary nature of the Adobe
Software, OEM acknowledges that in the event OEM or any OEM customer continues
to distribute the CPSI Application Object, or any portion thereof, after its
right to do so has terminated or expired, Adobe shall be entitled to active or
other equitable relief, including without limitation, an order directing that
any copies of the CPSI Application Object, or any portion thereof, which OEM or
any direct or indirect customer of OEM attempts to import into the U.S. or any
other country or territory, be seized, impounded and destroyed by Customs
officials in order to prevent such importation.
15.4 No Agency. Nothing contained herein shall be construed as creating
---------
any agency, partnership, or other form of joint enterprise between the parties.
15.5 Force Majeure. Neither party shall be liable hereunder by reason of
-------------
any failure or delay in the performance of its obligations hereunder (except for
the payment of money) on account of strikes, shortages, riots, insurrection,
fires, flood, storm, explosions, acts of God, war, governmental action, labor
conditions, earthquakes, material shortages or any other cause which is beyond
the reasonable control of such party.
15.6 Waiver. The failure of either party to require performance by the
------
other party of any provision hereof shall not affect the full right to require
such performance at any time thereafter; nor shall the waiver by either party of
a breach of any provision hereof be taken or held to be a waiver of the
provision itself.
15.7 Severability. In the event that any provision of this Agreement
------------
shall be unenforceable or invalid under any applicable law or be so held by
applicable court decision, such unenforceability or invalidity shall not render
Agreement unenforceable or invalid as a whole, and, in such event, such
provision shall be changed and interpreted so as to best accomplish the
objectives of such unenforceable or invalid provision within the limits of
applicable law or applicable court decisions.
15.8 Headings. The paragraph headings appearing in this Agreement are
--------
inserted only as a matter of convenience and in no way define, limit, construe
or describe the scope or extent of such paragraph, or in any way affect this
Agreement.
15.9 Confidentiality of Agreement. Neither party shall make any public
----------------------------
announcement of, or otherwise disclose, the existence of or matters set forth in
this Agreement except as mutually agreed in writing or as required by disclosure
obligations arising under law.
15.10 No Patent License. Nothing contained herein shall be construed as
-----------------
conferring by implication, estoppel or otherwise any license or right under any
-24-
<PAGE>
United States or foreign patent, issued, assigned or licensed to Adobe, whether
existing or later issued, except to the extent specifically required to perform
the obligations and obtain the benefits expressly set forth in this agreement.
Adobe agrees that OEM and OEM's customers shall have the right to exercise all
rights which Adobe expressly grants to OEM or expressly authorizes OEM to grant
to such customers herein, notwithstanding the existence or later issuance to
Adobe of any United States or foreign patent.
15.11 Assignment. Neither this Agreement nor any rights of OEM hereunder
----------
may be assigned by OEM in whole or in part without the prior written approval of
Adobe. For the purposes of this Paragraph, a change in the persons or entities
who control 50% or more of the equity securities or voting interest of OEM shall
be considered an assignment of OEM's rights. Adobe's rights and obligations, in
whole or in part, under this Agreement may be assigned by Adobe. Adobe may
exercise full transfer and assignment rights in any manner at Adobe's discretion
and specifically may sell, pledge or otherwise transfer its right to receive
royalties under this Agreement.
15.12 Attorneys' Fees. In the event any proceeding or lawsuit is brought
---------------
by Adobe, its suppliers or OEM in connection with this Agreement, the prevailing
party in such proceeding shall be entitled to receive its costs, expert witness
fees and reasonable attorneys' fees, including costs and fees on appeal.
15.13 Full Power. Each party warrants to the other that it has fun power
----------
to enter into and perform this Agreement, and the person signing this Agreement
on behalf of the respective party has been duly authorized and empowered to
enter into this Agreement. Each party further acknowledges that it has read
this Agreement, understands it and agrees to be bound by it.
15.14 Forum. All disputes arising under this Agreement may be brought in
-----
Superior Court of the State of California in Santa Clara County or the Federal
District Court of San Jose as permitted by law. The Superior Court of Santa
Cara County and the Federal District Court of San Jose shall each have
nonexclusive jurisdiction over disputes under this Agreement. OEM and Adobe
consent to personal jurisdiction of the above courts; provided, that the
foregoing shall not be construed as divesting any other court of such
jurisdiction as such court may otherwise have over such disputes.
15.15 Entire Agreement. This Agreement, the Exhibits hereto, and any
----------------
executed CPSI Application Appendices constitute the entire agreement between the
parties with respect to the subject matter hereof. This Agreement supersedes,
and the terms of this Agreement govern, any prior or collateral agreements
between the parties with respect to the subject matter hereof, whether oral or
written. This Agreement may only be changed by mutual agreement of authorized
representatives of the parties in writing.
-25-
<PAGE>
IN WITNESS OF, the parties hereto have duly executed this Agreement by
their respective duly authorized officers to be effective as Of the date first
written above.
ADOBE: OEM:
ADOBE SYSTEMS INCORPORATED SUPERMAC TECHNOLOGY
By:/s/ Steve MacDonald By:/s/ Louis J. Doctor
----------------------------------- ----------------------------------
Print Print
Name: Steve MacDonald Name: Louis J. Doctor
--------------------------------- --------------------------------
Title: V.P. SVS Products Div. Title: V.P. Business Development
-------------------------------- -------------------------------
Date: September 18, 1992 Date: 9/17/92
--------------------------------- --------------------------------
Address: 1585 Charleston Road Address: 485 Potrero Avenue
P.O. Box 7900 Sunnyvale, CA 94076
Mountain View,
CA 94039-7900
-26-
<PAGE>
EXHIBIT A
---------
Description of Adobe Software
Configurable PostScript Interpreter:
Interpreter for Adobe Systems Incorporated PostScript(R) page description
language which takes PostScript language programs as input and generates raster
images in memory.
-27-
<PAGE>
EXHIBIT B
---------
Adobe Trademarks
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
TRADEMARK TRADEMARK ATTRIBUTION
--------- ---------------------
<S> <C>
Adobe(TM) . . . is a trademark of Adobe Systems
Incorporated which may be registered in
certain jurisdictions.
The Adobe Logo . . . is a trademark of Adobe Systems
[LOGO](TM) Incorporated which may be registered in
certain jurisdictions.
PostScript(TM) . . . is a trademark of Adobe Systems
Incorporated which may be registered in
certain jurisdictions.
The PostScript Logo . . . is a trademark of Adobe Systems
[LOGO](TM) Incorporated which may be registered in
certain jurisdictions.
- --------------------------------------------------------------------------------
</TABLE>
-28-
<PAGE>
EXHIBIT C
---------
Coded Font Programs
A. The following Roman Initial Installation Coded Font programs shall be
made available on all licensed Systems:
<TABLE>
<CAPTION>
IDENTIFYING
TRADEMARK TYPEFACE TRADEMARK OWNER
- --------------- ---------- -----------------
<S> <C> <C>
Helvetica Linotype-Hell AG and/or it subsidiaries
Helvetica Bold Linotype-Hell AG and/or it subsidiaries
Helvetica Oblique Linotype-Hell AG and/or it subsidiaries
Helvetica Bold Oblique Linotype-Hell AG and/or it subsidiaries
Times Roman Linotype-Hell AG and/or it subsidiaries
Times Bold Linotype-Hell AG and/or it subsidiaries
Times Italic Linotype-Hell AG and/or it subsidiaries
Times Bold Italic Linotype-Hell AG and/or it subsidiaries
Symbol (Public Domain)
Courier (Public Domain)
Courier Bold (Public Domain)
Courier Oblique (Public Domain)
Courier Bold Oblique (Public Domain)
</TABLE>
-29-
<PAGE>
EXHIBIT D
---------
REPRODUCTION LOCATIONS
OEM's reproduction of the CPSI Application Object and Coded Font Programs
shall be restricted to the following locations:
<TABLE>
<CAPTION>
Name of Reproduction Site: Address of Reproduction Site:
------------------------- -----------------------------
<S> <C>
SuperMac Technology, Inc. 485 Potrero Avenue
Sunnyvale, CA 94086
</TABLE>
-30-
<PAGE>
EXHIBIT E
---------
CPSI Application Object and Coded Font Programs
Minimum Terms of End User Agreement
Notice to User
1. Licensor grants to Licensee a nonexclusive sublicense, subject to
Paragraph 7 below and the other provisions hereof (a) to use the CPSI
- -----------
Application Object ("Software") solely for Licensee's own internal business
purposes in a single computer, associated display with a resolution of less than
one hundred fifty dots per inch, and an associated printer which is directly
connected to the computer (the "Computer System"); (b) to use the digitally-
encoded machine-readable outline programs ("Font Programs") provided by Licensor
in a special encrypted format ("Coded Font Programs") and identified herewith to
reproduce and display designs, styles, weights, and versions of letters,
numerals, characters and symbols ("Typefaces") solely for Licensee's own
customary business or personal purposes on the Computer System; and (c) to use
the trademarks used by Licensor to identify the Coded Font Programs and
Typefaces reproduced therefrom ("Trademarks"). Licensee may assign its rights
under this Agreement to a licensee of all of Licensee's right, title and
interest to such Software and Coded Font Programs provided the licensee agrees
to be bound by all of the terms and conditions of this Agreement.
2. Licensee acknowledges that the Software, Coded Font Programs,
Typefaces and Trademarks are proprietary to Licensor and its suppliers.
Licensee agrees to hold the Software and Coded Font Programs in confidence,
disclosing the Software and Coded Font Programs only to authorized employees
having a need to use the Software and Coded Font Programs as permitted by this
Agreement and to take all reasonable precautions to prevent disclosure to other
parties.
3. Licensee will not make or have made, or permit to be made, any copies
of the Software or Coded Font Programs or portions thereof, except as necessary
for its use with a single Computer System hereunder. Licensee agrees that any
such copies shall contain the same proprietary notices which appear on or in the
Software or the Coded Font Program.
4. Except as stated above, this Agreement does not grant Licensee any
rights to patents, copyrights, trade secrets, trade names, trademarks (whether
registered or unregistered), or any other rights, franchises, or licenses in
respect of the Software, Coded Font Programs, Typefaces, or Trademarks.
Licensee will not adapt or use any trademark or trade name which is likely to be
similar to or confusing with that of licensor or any of its suppliers or take
any other action which impairs or reduces the trademark rights of licensor or
its suppliers. The Trademarks can only be used to identify printed output
produced by the Coded Font Programs. At the reasonable request of licensor,
Licensee must supply samples of any Typeface identified by a Trademark.
-31-
<PAGE>
5. Licensee agrees that it will not attempt to alter, disassemble,
decrypt or reverse engineer the Software or Coded Font Programs.
6. Licensee acknowledges that the laws and Regulations of the United
States restrict the export and re-export of commodities and technical data of
United States origin, including the Software or Coded Font Programs. Licensee
agrees that it will not export or re-export the Software or Coded Font Programs
in any form without the appropriate United States and foreign government
licenses. Licensee agrees that its obligations pursuant to this section survive
and continue after any termination or expiration of rights under this Agreement.
7. The Software licensed hereunder is intended to be used to generate
screen displays on a single Computer System having a screen resolution of less
than 150 dots per inch and to generate output on the associated printer.
Licensee agrees not to make use of the Software, directly or indirectly, (i) to
generate bitmap images on a screen display with a resolution of 150 dots per
inch or greater, (ii) to generate Typefaces for use other than with the Computer
System, or (iii) to generate printed output on other than an output device that
Licensor has designated to be approved for use with the Software on the Computer
System. Any failure of License to comply with this provision is a material
breach of this End User Agreement.
8. NEITHER LICENSOR NOR ANY OF ITS REPRESENTATIVES MAKES OR PASSES ON TO
LICENSEE OR OTHER THIRD PARTY ANY WARRANTY OR REPRESENTATION ON BEHALF OF
LICENSOR'S THIRD PARTY SUPPLIERS.
9. Licensee is hereby notified that Adobe Systems Incorporated, a
California corporation located at 1585 Charleston Road, Mountain View,
California 94039-7900 ("Adobe") is a third-party beneficiary to this Agreement
to the extent that this Agreement contains provisions which relate to Licensee's
use of the Software, the Coded Font Programs, the Typefaces and the Trademarks
licensed hereby. Such provisions are made expressly for the benefit of Adobe
and are enforceable by Adobe in addition to Licensor.
-32-
<PAGE>
EXHIBIT F
---------
Sample Form of CPSI Application Appendix
APPENDIX NO. ______
EFFECTIVE AS OF _______________, 19___
TO
CONFIGURABLE POSTSCRIPT(R) INTERPRETER
OEM LICENSE AGREEMENT
BETWEEN
ADOBE SYSTEMS INCORPORATION
AND
_____________________________________________
Name of CPSI Application:_____________________________
This Appendix sets forth additional and different terms and conditions
particular to the Licensed System described below and shall be incorporated by
reference into the Configurable PostScript Interpreter OEM License Agreement
("Agreement") between _______________________ ("OEM") and Adobe Systems
Incorporated ("Adobe") effective as of ________________________. Such different
or additional terms are applicable only to the Licensed System described below
and in no way alter the terms and conditions applicable to other Licensed
Systems incorporated into the Agreement by addition of an appendix.
All the terms used in this Appendix shall retain the same meaning as
defined in the Agreement and such definitions are incorporated herein by
reference.
A. Description of CPSI Application:
B. Description of Computer System:
(1) One computer with operating system software described as
follows:
(2) One Designated Output Device from the following set:
OEM may use the CPSI Application to generate output from devices
other than those listed in this paragraph only within the development
group and only for testing purposes within that group. New devices
must be added to this Appendix by an addendum before OEM may install
such devices for use with the CPSI Application outside the
development group. If OEM wishes to
-33-
<PAGE>
add other devices, it must first submit to Adobe a letter describing
the full specification of the additional device and
provide output samples of type in both small and large sizes and
sampled images. Adobe may subject this additional device installed
for use with the CPSI Application to quality testing, as described
Paragraph 3.8.2 ("Adobe Testing") and will notify OEM within thirty
---------------
(30) days or such longer period if Adobe determines, in its sole
discretion, that it needs a longer period, that it accepts or rejects
OEM's proposed additional device. If such additional device is
accepted by Adobe as a Designated Output Device, Adobe will prepare
an addendum to this Appendix and forward to OEM for execution. OEM
shall authorize use of the CPSI Application to generate output only
on devices that have been approved by Adobe in accordance with the
provisions as described in this Paragraph.
C. Licensed System: (List all the hardware and software components
comprising a Licensed System.)
D. Development Environment (if different from the computer and operating
system described in Paragraph B above):
-----------
(a) Hardware platform:
(b) Software platform:
E. Adobe Deliverables:
(1) Adobe Software: As described in Exhibit A ("Description of
-------------- ---------
Adobe Software") to the Agreement and in the lst [2nd]
Edition of the PostScript Language Reference Manual. See
Schedule 1 ("Licensed System Functional Specification").
----------
Adobe Software will be delivered on ____________media.
(2) Demonstration Program(s): The Demonstration Program(s) will
------------------------
be in "C" language source form and will provide OEM with an
example of how to use the Adobe Software described in
Exhibit A ("Description of Adobe Software") to interpret
---------
PostScript language programs and produce raster output. See
Schedule 1 ("Licensed System Functional Specification"). The
----------
Demonstration Program(s) will be delivered with the Adobe
Software.
(3) Other Adobe-Supplied Software:
(4) Documentation: The Documentation as described below will be
-------------
delivered both in hard copy (1 copy) and in PostScript page
description language format on the software distribution
medium (1 file per document).
-34-
<PAGE>
a. CPSI Supplement
b. PostScript Language Addendum Template
c. Other Documentation
(5) Coded Font Programs: The Roman Initial Installation Coded
-------------------
Font Programs, listed in Paragraph I will be delivered on the
-----------
Adobe Software distribution medium.
F. Development Schedule and Testing Expectations:
<TABLE>
<CAPTION>
MILESTONE DESCRIPTION *SCHEDULE:
------------------------- ----------------
<S> <C>
#(1) [*]
#(2)
#(3)
#(4)
#(5)
#(6)
#(7)
</TABLE>
-35-
[*] Confidential Treatment Requested.
<PAGE>
<TABLE>
<S> <C>
#(8) [*]
#(9)
#(10)
#(11)
</TABLE>
G. OEM-Loaned Equipment: Terms and conditions related to the
obligations of the parties concerning OEM-Loaned Equipment are set
forth in Paragraph 3.4 ("OEM-Loaned Equipment and Related Materials")
-------------
of the Agreement.
-36-
[*] Confidential Treatment Requested.
<PAGE>
H. Software License Fee:
OEM shall pay Adobe a Software License Fee of U.S. $_____ upon
execution of this Appendix.
I. Applicable Royalties:
J. Roman Initial Installation Coded Font Program:
Media: ____________________________ (as distributed by OEM).
Adobe will provide the graphic characters specified in ISO 8859-1:
1987, Latin, alphabet No. 1 and symbol characters, as applicable, for
the following Initial Installation Coded Font Programs as fisted in
Exhibit C ("Coded Font Programs") to the Agreement:
---------
Identifying Trademark Typeface Trademark Owner
--------------------- -------- ---------------
K. Roman Additional Coded Font Programs:
Media:_____________________________ (as distributed by OEM).
Adobe will provide the graphic characters specified in ISO 8859-1:
1987, Latin alphabet No. 1 and symbol characters, as applicable, for
the following Roman Additional Coded Font Programs:
Identifying Trademark Typeface Trademark Owner
--------------------- -------- ---------------
L. Testing Criteria: OEM shall test a beta release version of the CPSI
Application Object, and any modified version thereof, to confirm that
the licensed System performs in accordance with the testing criteria
described below.
M. Designated Representatives:
(1) Technically qualified OEM representative to respond to
information requested by Adobe:
_____________________________________________________________
(2) Technically qualified Adobe representative to respond to
information requested by OEM:
_____________________________________________________________
-37-
<PAGE>
(3) OEM's designated representative for Continuing Support
services:
_____________________________________________________________
(4) Adobe Contract Representative:
_____________________________________________________________
(5) OEM Contract Representative:
_____________________________________________________________
IN WITNESS WHEREOF, OEM and Adobe have caused this Appendix to be executed
by their duly authorized officers.
ADOBE: OEM:
ADOBE SYSTEMS INCORPORATED SUPERMAC TECHNOLOGY
By:_____________________________ By: /s/ Louis J. Doctor
-----------------------------------------
Print Print
Name:___________________________ Name: Louis J. Doctor
---------------------------------------
Date:___________________________ Date: Sept. 17, 1992
---------------------------------------
-38-
<PAGE>
SCHEDULE-1
----------
Licensed System Functional Specification
To be provided at a later date
-39-
<PAGE>
AMENDMENT NO. 1
TO THE
CONFIGURABLE POSTSCRIPT INTERPRETER
OEM LICENSE AGREEMENT
BETWEEN
ADOBE SYSTEMS INCORPORATED
AND SUPERMAC TECHNOLOGY INCORPORATED
Effective Date: July 28, 1993
-------------
This Amendment No. 1 to the Configurable PostScript Interpreter OEM License
Agreement effective September 18,1992 (the "Agreement") is by and between Adobe
Systems Incorporated, having its place of business at 1585 Charleston Road, P.O.
Box 7900, Mountain View, California, 94039-7900 ("Adobe") and SuperMac
Technology, Inc., having its place of business at 215 Moffett Park Drive,
Sunnyvale, CA 94089 ("OEM").
WHEREAS, Adobe has revised its procedures for quality testing a CPSI
Application Object since OEM and Adobe entered into the Agreement;
WHEREAS, such revised testing procedures will be mutually beneficial to
Adobe and OEM by providing OEM increased responsibility in the final stages of
development of a CPSI Application Object;
WHEREAS, Adobe has also revised its procedures for managing the number of
users of the Adobe Software at any one time;
NOW, THEREFORE, the parties agree to modify and amend the Agreement to add
the revised testing and use procedures as follows:
1. All references in the Agreement to [*] shall hereby refer instead to
[*].
2. All references in the Agreement to Paragraph 2.1.10 ("Protection
----------------
Mechanisms") shall hereby refer instead to Paragraph 2.1.11 ("Additional
----------------
Protection Mechanism").
3. Paragraph 1 ("Definitions"). Paragraph 1.1 ("Adobe Information") is
----------- -------------
hereby deleted in its entirety and replaced by the following:
"1.1 Adobe Information. "Adobe Information" shall mean the Adobe
-----------------
Software, Other Adobe-Supplied Software, Coded Font Programs, Demonstration
Program(s), PostScript Product Certification Test Suite, Typefaces, Trademarks,
Documentation and the Adobe Trademarks."
[*] Confidential Treatment Requested.
-1-
<PAGE>
4. Paragraph 1 ("Definitions"). Paragraph 1.10 ("Documentation") is
----------- --------------
hereby deleted in its entirety and replaced by the following:
"1.10 Documentation. "Documentation" shall mean (i) the PostScript
------------- ----------
Language Reference Manual, Second Edition, as printed in English by Addison-
- -----------------------------------------
Wesley, current as of April, 1991, or such other version of the PostScript
Language Reference Manual as specified in a CPSI Application Appendix, (ii) the
printer supplement and/or addendum, if any, prepared by Adobe for a CPSI
Application Appendix, (iii) the PostScript Language Addendum Template, (iv) the
Configurable PostScript Interpreter Functional Specification, (v) Supplement to
the PostScript Language Reference Manual, (vi) any other Documentation for Adobe
Software identified in a CPSI Application Appendix hereto and (vii) any updates,
enhancements, substitutions, replacements or modifications thereof delivered to
OEM by Adobe during the term of this Agreement."
5. Paragraph 1 ("Definitions"). New Paragraphs 1.20 through 1.29 are
----------- --------------- ----
hereby added to the Agreement to read as follows:
"1.20 [*]
1.21 CPU. "CPU" shall mean a central processing unit.
---
1.22 License Management Mechanism. "License Management Mechanism"
----------------------------
shall mean the software/and or hardware provided by OEM which controls-and
monitors access to the CPSI Application Object and Coded Font Programs to ensure
that use thereof is limited to licensed Uses.
1.23 Licensed Use. "Licensed Use" shall mean the executing of the
------------
CPSI Application Object and Coded Font Programs in a single CPU on a Computer
System under a license purchased by the End User. The total number of licenses
purchased by the End User shall never be less than the total number of CPU's
executing the CPSI Application Object and Coded Font Programs concurrently on a
single Licensed System or in a network on multiple Computer Systems.
1.24 Software Upgrade. A "Software Upgrade" shall mean the
----------------
installation of any software enhancement to standard software features on a
previously installed Licensed System or the installation of any optional
software features on a previously installed Licensed System.
1.25 Hardware Upgrade. A "Hardware Upgrade" shall mean the
----------------
installation of any hardware enhancement, with required software, to standard
hardware features on a previously installed Licensed System or the installation
of any
[*] Confidential Treatment Requested.
-2-
<PAGE>
optional hardware features, with required software, on a previously
installed Licensed System.
1.26 Bitmap Font. Bitmap Font shall mean the applicable digitally
-----------
encoded machine readable data in bitmap form for screen display and having a
resolution of less than 150 dots per inch in the plurality of sizes then
currently available from Adobe for a single Typeface in Macintosh format only
delivered by Adobe to OEM for use with the associated Coded Font Program.
1.27 Authorized Third Party(ies). "Authorized Third Party(ies)"
---------------------------
shall be the collective term for OEM's distributors and Authorized Service
Companies (service companies that provide third party service and maintenance to
End Users for OEM or OEM's distributors) who have entered into a written
agreement containing the minimum terms and conditions described in Exhibit H
---------
("Authorized Third Party Agreement Minimum Terms and Conditions").
1.28 Replacement Software. "Replacement Software" shall mean a
--------------------
copy of the CPSI Application Object and Coded Font Programs intended for use in
accordance with Paragraph 2.7 ("Replacement Software") as a maintenance spare
-------------
for a specific Licensed System.
1.29 Authorized Printer Engine Manufacturer Distributor.
--------------------------------------------------
"Authorized Printer Engine Manufacturer Distributor" shall mean a third party
with whom OEM has entered into a written agreement for distribution of a
Licensed System which includes a Designated Output Device supplied by such third
party and other hardware and software components provided by OEM, and who are
expressly identified as such in the attached Exhibit I ("Authorized Printer
---------
Engine Manufacturer Distributors") to this Agreement."
6. Paragraph 2 ("License Grants"). A new paragraph at the end of
-----------
Paragraph 2.1.2 ("Coded Font Programs") is hereby added to read as follows:
- ---------------
"OEM agrees that the Bitmap Fonts provided by Adobe will be
distributed only in conjunction with the associated Coded Font Programs. OEM
acknowledges that Bitmap Fonts will be available in a limited number of point
sizes and may not be available at all for some Coded Font Programs. All of the
terms and conditions applicable to the Coded Font Programs herein, including but
not limited to the grant of rights in this Paragraph 2.1.2 and in Paragraph
--------------- ---------
2.1.7 ("Limited Functional Scope of License") through Paragraph 2.1.9 ("End-User
- ----- ---------------
Licensing") and Paragraph 2.5 ("Reverse Engineering") shall apply to the Bitmap
-------------
Fonts. Notwithstanding the foregoing, so long as the Bitmap Fonts are
distributed in conjunction with the Coded Font Programs, no additional royalty
is due Adobe under the terms of Paragraph 7.5 ("Payment of Royalties") for
-------------
distribution of the Bitmap Fonts."
7. Paragraph 2 ("License Grants"). Paragraph 2.1.6 ("Nondisclosure") is
----------- ---------------
hereby deleted in its entirety and replaced by the following:
-3-
<PAGE>
"2.1.6 Nondisclosure. OEM agrees that it will disclose the Adobe
-------------
Information only to employees and independent contractors with a need to know
who have agreed in writing (i) not to disclose the Adobe Information to other
parties, (ii) to use the Adobe Information for the sole benefit of OEM and only
as permitted by this Agreement, and (iii) to take all reasonable precautions to
prevent disclosure to other parties. OEM shall take all measures reasonably
required, including prompt and appropriate action as required, to prevent
unauthorized use or disclosure of Adobe Information by such authorized employees
and independent contractors."
8. Paragraph 2 ("License Grants"). Paragraph 2.1.10 ("Protection
----------- ----------------
Mechanisms") is hereby deleted in its entirety and replaced by the following:
"2.1.10 Protection Mechanisms. OEM shall employ in conjunction with
---------------------
the CPSI Application Object and Coded Font Programs licensed hereunder, copy
protection, serialization, encryption or other License Management Mechanism to
restrict or monitor unauthorized use of application software, as required by
Adobe and as specified in the applicable CPSI Application Appendix. If no
standard of protection is specified, OEM shall ensure that the CPSI Application
Object and Coded Font Programs are encrypted, and, in the case of Other Coded
Font Programs for Japanese Typefaces, copy protected as well."
9. Paragraph 2 ("License Grants"). New Paragraph 2.1.11 ("Additional
----------- ----------------
Protection Mechanism") and 2.1.12 ("PostScript Product Certification Test
------
Suite") are hereby added to the Agreement to read as follows:
"2.1.11 Additional Protection Mechanism. The parties acknowledge
-------------------------------
that the Licensed System may be in a network environment with the CPSI
Application Object and Coded Font Programs located on a server. OEM shall employ
a License Management Mechanism which permits the End User access to the CPSI
Application Object and Coded Font Programs only if such use constitutes a
Licensed Use, as that term is defined herein, and thus is covered by a license
purchased by the End User from OEM. In the event that it comes to Adobe's
attention that the License Management Mechanism has been violated and Adobe
reasonably believes that there is unlicensed use of the CPSI Application Object
and Coded Font Programs, OEM will use best efforts to supply a new License
Management Mechanism within thirty (30) days after OEM receives notification of
such violation. Should Adobe be able to demonstrate failure of the License
Management Mechanism to reasonably prevent unlicensed use of the CPSI
Application Object and Coded Font Programs, OEM will immediately stop shipment
of the CPSI Application Object and Coded Font Programs until corrective measures
can be taken. One license is required for each concurrent Licensed Use of the
CPSI Application Object and Coded Font Programs.
2.1.12 [*]
-4-
[*] Confidential Treatment Requested.
<PAGE>
10. [*]
11. Paragraph 2 ("License Grants"). The first sentence of Paragraph 2.5
----------- -------------
("Reverse Engineering") is hereby deleted in its entirety and replaced by the
following:
"OEM agrees that it will not reverse engineer, reverse compile,
disassemble or otherwise attempt to create source code which is derived from the
Adobe Software, Other Adobe-Supplied Software or Coded Font Programs or
Demonstration Program(s) provided in object code form or [*]."
12. Paragraph 2 ("License Grants"). A new Paragraph 2.6 ("Authorized
----------- -------------
Third Parties") and a new Paragraph 2.7 ("Replacement Software") are hereby
added to the Agreement to read as follows:
"2.6 Authorized Third Parties.
------------------------
2.6.1 License Grant. OEM shall have the right to provide
-------------
Replacement Software to Authorized Third Parties in accordance with a written
agreement containing the minimum terms of Exhibit H ("Authorized Third Party
---------
Agreement Minimum Terms and Conditions"), solely for the purpose of performing
maintenance, support, troubleshooting and related diagnostic services for
Licensed Systems. OEM will use its best efforts to ensure that every copy of
Replacement Software which it supplies to an Authorized Third Party hereunder is
used solely for the purposes of servicing defective Licensed Systems.
Replacement Software supplied for the purpose of servicing a defective Licensed
System shall contain the same Coded Font Programs and version of CPSI
Application Object as the Coded
-5-
[*] Confidential Treatment Requested.
<PAGE>
Font Programs and CPSI Application Object it replaces in the Licensed System.
2.6.2 Right to Sublicense. OEM may permit its Authorized
-------------------
Third Parties to provide the Replacement Software to their respective Authorized
Service Companies solely for the purpose of performing the activities described
in Paragraph 2.6.1 above so long as each such Authorized Service Company has
---------------
executed a written agreement which contains the minimum terms and conditions
described in Exhibit H ("Authorized Third Party Minimum Terms and Conditions")
---------
prior to receipt of the Replacement Software. Upon Adobe's request, OEM agrees
to supply Adobe with copies of such Authorized Third Party agreements. OEM
acknowledges that it has no right to grant an Authorized Third Party the right
to reproduce the Replacement Software or the Adobe Software or Coded Font
Programs contained in the Replacement Software.
2.7 Replacement Software. Notwithstanding the terms of
--------------------
Paragraph 2.1 ("License to Sublicense Certain Software and Documentation"),
- -------------
Adobe grants OEM the right to distribute such Replacement Software either
directly to End Users or through Authorized Third Parties in accordance with
Paragraph 2.6 ("Authorized Third Parties"), provided that:
- -------------
(i) the versions of the CPSI Application Object and Coded
Font Programs previously residing on the Licensed System are destroyed by OEM,
its Subsidiary, or by the Authorized Third Party, subject to its Subsidiary or
Authorized Third Party providing assurance in writing to OEM that the replaced
copies of CPSI Application Object and Coded Font Programs have been destroyed.
Upon request by Adobe, an officer of OEM shall certify in writing that all such
replaced copies of the CPSI Application Object and Coded Font Programs have been
destroyed or properly disposed of as required by this subparagraph; and
(ii) OEM keeps records of the number of such Replacement
Software reproduced and distributed either directly or indirectly through its
Subsidiary or Authorized Third Parties and supplies Adobe with copies of such
records upon request; and
(iii) OEM agrees that written records on the use and
disposition of the Replacement Software shall be maintained by OEM, its
Subsidiary and/or its Authorized Third Parties ("Service Records"), and OEM
agrees to make or require its Subsidiary or Authorized Third Parties to make
such Service Records available to Adobe upon request within ninety (90) days
thereafter; and further, such Service Records shall be supplied to Adobe in
sufficient detail to allow Adobe to reasonably ascertain for itself the use and
disposition of Replacement Software; and
(iv) OEM shall account for each shipment of Replacement
Software in the reports submitted under Paragraph 7.5 ("Payment of Royalties")
-------------
of the Agreement either as a royalty-bearing event or as a royalty-free
-6-
<PAGE>
distribution. All distribution of Replacement Software by OEM shall be royalty-
free unless OEM fails to comply with the requirements set forth in Subparagraphs
-------------
(i), (ii), and (iii) of this Paragraph 2.7 ("Replacement Software") in which
- --- ---- ----- -------------
case OEM shall pay Adobe the Licensed System royalties and Coded Font Program
royalties described in the applicable CPSI Application Appendix for such
Replacement Software."
13. Paragraph 3. ("Development, Delivery and Acceptance"). The first
-----------
sentence of Paragraph 3.2 ("Adobe Software Development") is hereby deleted in
-------------
its entirety and replaced by the following:
"Adobe shall use its best efforts to develop and modify the Adobe
Software for use as part of the CPSI Application in the Computer System
environment specified in the applicable CPSI Application Appendix and in
conformance with the functional description of the Adobe Software as described
in Exhibit G ("Configurable PostScript Interpreter Functional Specification"),
---------
hereto, subject to the following limitations."
14. [*]
15. [*]
-7-
[*] Confidential Treatment Requested.
<PAGE>
16. [*]
-8-
[*] Confidential Treatment Requested.
<PAGE>
17. Paragraph 3 ("Development, Delivery and Acceptance"). The first
-----------
sentence of Paragraph 3.9 ("PostScript Language Addendum") is hereby deleted in
-------------
its entirety and replaced by the following:
"OEM will provided Adobe with a draft version of a PostScript Language
Addendum for each Licensed System in a mutually agreeable format in advance of
the time when OEM provides test results for Adobe's review under Paragraph 3.8.2
---------------
("Adobe certification") above or in accordance with the milestone set forth in a
CPSI Application Object.
18. Paragraph 3 ("Development, Delivery and Acceptance"). A new Paragraph
----------- ---------
3.10 ("OEM Training") is hereby added to the Agreement to read as follows:
- ----
"3.10 OEM Training. OEM agrees that if such training has not
------------
already been completed, it will send at least two technically qualified
employees and/or independent contractors to attend one of Adobe's authorized
PostScript language training classes for five (5) days prior to its initiating
its first development effort under this Agreement. OEM will pay the costs of
travel and accommodations for its personnel and shall reimburse Adobe for such
training at Adobe's then current standard rates."
19. Paragraph 4 ("Proprietary Rights"). The first sentence of Paragraph
----------- ---------
4.2 ("Adobe Trade Secrets") is hereby deleted in its entirety and replaced by
- ---
the following:
"OEM agrees that the Demonstration Program(s) in source code form and
those techniques, algorithms, and processes contained in the Adobe Software,
Other Adobe-Supplied Software, Coded Font Programs and Demonstration Program(s)
and the information contained in the Template and the PostScript Product
Certification Test Suite which have been developed, acquired or licensed by
Adobe, or any modification or extraction thereof, constitute trade secrets of
Adobe or its suppliers, and will be used by OEM only in accordance with the
terms of this Agreement."
-9-
<PAGE>
20. Paragraph 4 ("Proprietary Rights"). Paragraph 4.3 ("Unauthorized
----------- -------------
Distribution or Copying") is hereby deleted in its entirety and replaced by the
following:
"4.3 Unauthorized Distribution or Copying. OEM agrees that (a)
------------------------------------
distributing, copying, duplicating or otherwise reproducing all or any part of
the Adobe Software, Other Adobe-Supplied Software, Demonstration Program(s),
PostScript Product Certification Test Suite, Coded Font Programs or
Documentation (except as expressly permitted by this Agreement), (b)
distributing copies of all or any portion of the Adobe Software, Other Adobe-
Supplied Software, Demonstration Program(s) or Coded Font Programs other than in
the form of royalty-bearing End User products; (c) failing to ensure that each
End User of the CPSI Application and Coded Font Programs first obtains a license
and pays the appropriate royalty fee in accordance with the royalty provisions
contained herein; or (d) distributing the CPSI Application Object or Coded Font
Programs for use on other than a Computer System, or for use in conjunction with
an output device that is not a Designated Output Device, will be considered a
material breach of this Agreement."
21. Paragraph 6 ("Export"). Paragraph 6 is hereby deleted in its
----------- -----------
entirety and replaced by the following:
"6. EXPORT, OEM shall not knowingly, without prior authorization,
------
required, of the Office of Export Administration ("OEA"), export or re-export
(as defined in Section 779.1(b)-(c) of the Export Administration Regulations -
"Regulations" - and any amendments thereto) to any Group Q, S, W, Y or Z country
specified in Supplement No. 1 to Section 770 of the Regulations as amended from
time to time (i) any Adobe Information or (ii) the immediate product (including
processes and services) produced directly by use of any Adobe Information. The
provisions of this Paragraph shall survive notwithstanding any cancellation,
termination or expiration of this Agreement."
22. Paragraph 7 ("Payments"). Paragraphs 7.1 ("CPSI Application
----------- --------------
Payments") and 7.2 ("Coded Font Program Royalties") are hereby deleted in their
---
entirety and replaced by the following:
"7.1 CPSI Application Payments. OEM shall pay Adobe in U.S.
-------------------------
Dollars the software license fees and per Licensed Use royalties set forth in
each CPSI Application Appendix hereto. OEM shall pay Adobe a separate royalty
for each concurrent Licensed Use of the CPSI Application Object.
7.2 Coded Font Program Royalties. OEM shall also pay to Adobe
----------------------------
the per Licensed Use royalties for the Roman Initial Installation Coded Font
Programs, Roman Additional Coded Font Programs, if any, and Other Coded Font
Programs, if any, distributed with each CPSI Application Object, in the amount
specified in the applicable CPSI Application Appendix hereto."
-10-
<PAGE>
23. Paragraph 7 ("Payments"). Paragraphs 7.5 ("Payment of Royalties"),
----------- --------------
7.6 ("When Royalties Are Earned") and 7.7 ("Right of Audit") are hereby deleted
- --- ---
in their entirety and replaced by the following:
"7.5 Payment of Royalties. All royalties due in accordance with
--------------------
the terms of this Agreement shall be paid in U.S. Dollars within 30 days after
the end of each calendar quarter. With each royalty payment OEM shall include a
written summary, broken out by month of sale and country categories (U.S.,
Canada, Europe, Far East, Rest of World), of: (a) the number and types of
Licensed Systems distributed or used internally by OEM during the quarter; (b)
the number and types of Roman and Other Coded Font Programs, by Typefaces,
bundled with the CPSI Application Object for use as a part of a Licensed System
and licensed to End Users or used internally by OEM during the quarter; (c) the
number of licenses for licensed Use of the CPSI Application Object and Coded
Font Programs purchased by End Users during the quarter; and (d) any other
information which may be required to determine whether OEM is paying the correct
royalty amount hereunder. Licensed Systems which are returned for which refunds
are made or a credit is issued by OEM shall be credited by OEM against royalties
due to Adobe for such Licensed Systems; provided however, that in the event OEM
provided a partial refund (or credit) of the price of a returned Licensed
System, OEM shall be entitled to obtain a corresponding partial credit against
royalties due for such Licensed System. At Adobe's request, OEM shall orally
advise Adobe each month of its estimate of the number of Licensed Systems
shipped by OEM and the number of licenses for Licensed Use purchased by End
Users during the previous month and the royalties accrued thereby. Such oral
communication shall be subject to final adjustment by OEM at the end of each
accounting period.
7.6 When Royalties Are Earned. All royalties due hereunder shall
-------------------------
be earned on the date OEM ships a Licensed System to its customer or upon the
purchase of a license for a Licensed Use of the CPSI Application Object and
Coded Font Programs by an End User, except that in the event of shipment of the
CPSI Application Object between OEM and its Subsidiary or as between
such Subsidiaries for resale, such royalties shall be earned when the CPSI
Application Object and Coded Font Programs are first shipped to a customer other
than OEM and any such Subsidiaries.
7.7 Right of Audit. OEM shall maintain a complete, clear,
--------------
accurate record of: (a) the number and types of licensed Systems distributed or
used internally by OEM and the number of licenses for Licensed Use purchased by
End Users during the quarter; (b) the number and types of Roman and Other Coded
Font Programs, by Typefaces, bundled with the CPSI Application Object for use as
part of a Licensed System and licensed to End Users or used internally by OEM
during the quarter; and (c) any other information which may be required to
determine whether OEM is paying the correct royalty amount hereunder. To ensure
compliance with the terms of this Agreement, Adobe shall have the right to
conduct an inspection and audit of all the relevant accounting and sales books
and records of OEM during regular business hours at OEM's offices and in such a
manner as not to interfere with OEM's normal business activities. In no event
shall audits be made hereunder more frequently than every six
-11-
<PAGE>
(6) months. If such inspections should disclose any underreporting, OEM shall
promptly pay Adobe such amount, together with interest thereon at the rate of 1-
1/2% per month or the highest interest rate allowed by law, whichever is lower,
from the date on which such amount became due."
24. Paragraph 12 ("Internal Improvements; Continuing Support"). The
------------
second sentence of Paragraph 12.1 ("Internal Improvements") is hereby deleted in
--------------
its entirety and replaced by the following:
"OEM may distribute such Internal improvements to licensed End Users
who have paid the applicable Licensed Use royalties for use with previously
distributed Licensed Systems containing the CPSI Application Object [*]."
25. Paragraph 13 ("Cancellation"). Paragraph 13.4.2 ("Return of
------------ ----------------
Proprietary Information") is hereby deleted in its entirety and replaced by the
following:
"13.4.2 Return of Proprietary Information. Subject to Paragraph
--------------------------------- ---------
13.4.6 ("Continued Support") below, OEM shall erase, destroy or return to Adobe
- ------
all of Adobe's proprietary information in its possession, [*]. Upon Adobe's
request, OEM shall warrant in writing its return or destruction of Adobe's
proprietary information within thirty (30) days of cancellation, termination, or
expiration."
26. A new Paragraph 15 ("Right to Use Authorized Printer Engine
------------
Manufacturer Distributors") is added to the Agreement to read as follows:
"15. Right to Use Authorized Printer Engine Manufacturer
---------------------------------------------------
Distributors. OEM may distribute Licensed Systems which include a Designated
Output Device through a third party identified in Exhibit I ("Authorized Printer
---------
Engine Manufacturer Distributor") attached hereto. Such identified third party
may, in conjunction with marketing and distributing (directly and indirectly)
Licensed Systems to End Users, market and distribute Adobe Software and Coded
Font Programs, provided however, that such third party shall have no right to
alter, reproduce or make copies of any Adobe Software or Coded Font Programs
contained in the Licensed System, manufacture any portion of the Licensed System
other than the Designated Output Device specified in the applicable CPSI
Application Appendix and Exhibit I hereto, alter the functionality of any
portion of the Licensed System manufactured by OEM or market or distribute any
portion of the Licensed System other than the applicable Designated Output
Device (including cables) under such third party's trademarks. Notwithstanding
the above, OEM may include the identified third party's trademarks with any
portion of the Licensed System manufactured by OEM and the identified third
party may market or distribute Licensed Systems with such third party's
trademarks. OEM shall use best efforts to ensure that (i) such third party's
distribution of the Licensed Systems will be accompanied by an OEM End User
License as set forth in Paragraph 2.17 of the Agreement; and (ii) such third
--------------
party uses the applicable
-12-
[*] Confidential Treatment Requested.
<PAGE>
Trademarks and Adobe Trademarks in its catalogs, advertising, packaging, and
promotional materials relating to the Licensed System in accordance with
accepted trademark practice, including identification of the Trademark Owner;
provided, however, that OEM shall prohibit such distribution of a Licensed
System in Taiwan in conjunction with such third party's use of the Trademarks
and Adobe Trademarks. OEM shall provide in the written agreement with such third
party an express statement that Adobe shall have no responsibility to provide
direct support or service to such third party. OEM acknowledges that the grant
of such right to use authorized third parties to distribute Licensed Systems
does not in any way affect OEM's obligation to account for and pay all royalties
for Licensed Systems distributed by such authorized third parties with such
royalties deemed to be earned by Adobe at the time OEM ships an accelerator
card, Adobe Software and accompanying Coded Font Programs to such third party."
27. A new Exhibit G ("Configurable PostScript Interpreter Functional
---------
Specification") is hereby added to the Agreement and is attached hereto.
28. A new Exhibit H ("Authorized Third Party Agreement Minimum Terms and
---------
Conditions") is hereby added to the Agreement and is attached hereto.
29. A new Exhibit I ("Authorized Printer Engine Manufacturer
---------
Distributors") is hereby added to the Agreement and is attached hereto.
30. All other terms and conditions of the Agreement shall remain in full
force and effect.
31. Paragraph 15 ("General") and all subparagraphs thereto are renumbered
------------
as Paragraph 16 ("General") and all subparagraphs thereto are renumbered
------------
appropriately.
IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to the
Agreement to be signed by their duly authorized representatives.
Adobe: OEM:
ADOBE SYSTEMS INCORPORATED SUPERMAC TECHNOLOGY
INCORPORATED
By: /s/ John E. Warnock By: /s/ Louis J. Doctor
------------------------------- ----------------------------
John E. Warnock Louis J. Doctor
- ---------------------------------- -------------------------------
Printed Name Printed Name
Title: Chief Executive Officer Title: EVP
---------------------------- -------------------------
Date: 7/28/93 Date: 7/16/93
---------------------------- -------------------------
-13-
<PAGE>
EXHIBIT G
---------
Configurable PostScript Interpreter Functional Specification
-14-
<PAGE>
EXHIBIT H
---------
Authorized Third Party Agreement
Minimum Terms and Conditions
1. License. Licensor may provide to Licensee Software media containing
-------
the CPSI Software and/or Coded Font Programs from Adobe ("Replacement Software")
for maintenance or repair purposes only. Licensee may use the Replacement
Software for the performance of maintenance, support, troubleshooting and
related diagnostic services for the Licensed System.
If Licensee is SuperMac's OEM or distributor, Licensee may provide the
Replacement Software to its Authorized Service Companies performing the
activities described above so long as each such Authorized Service Company has
executed a written agreement containing these minimum terms and conditions, and
provided SuperMac Technology, Inc. and Adobe Systems Incorporated are listed as
third party beneficiaries of such written agreement.
2. Replacement. All defective copies of the Software which contain the
-----------
CPSI Software or Coded Font Programs from Adobe shall be replaced with
Replacement Software on a "like-for-like" basis. Licensee must destroy the
version of the CPSI Software previously residing on the Licensed System or
return them to SuperMac. Licensee shall keep records of the disposition of such
replaced copies of the CPSI Software and shall provide SuperMac with reports
containing such information upon SuperMac's request.
3. Restrictions. Licensee agrees it will not reproduce, modify, reverse
------------
assemble, reverse compile or otherwise reverse engineer the Replacement Software
in whole or in part or allow any other party to do so while Replacement Software
is in its possession or under its control.
4. Third Party Beneficiary. Licensee is hereby notified and
-----------------------
acknowledges that Adobe Systems Incorporated, 1585 Charleston Road, Mountain
View, California 94039-7900 ("Adobe") is a third-party beneficiary of any
agreement between Licensee and Licensor that pertains to the Replacement
Software. The provisions of such agreements are made expressly for the benefit
of Adobe and are enforceable by Adobe in addition to SuperMac. Licensee further
acknowledges that if it fails to comply with the applicable terms and conditions
of such agreement, Adobe shall have the right to terminate this Agreement under
the terms of Paragraph 5 below and further, Adobe shall be entitled to equitable
-----------
relief to protect its interests, including but not limited to injunctive relief,
in addition to any other rights and remedies provided by law.
5. Termination. Licensor may terminate this Agreement at any time for
-----------
breach of the provisions set forth in Paragraph 2 and 3 above by providing
----------- -
Licensee with a notice of termination, and upon receiving such notice Licensee
shall immediately discontinue use of the Replacement Software. Within ten (10)
days of such termination,
-15-
<PAGE>
Licensee shall have (i) returned to Licensor all copies of the Replacement
Software in its possession or under its control; and (ii) presented to Licensor
a certificate signed by a corporate office of Licensee stating that all such
copies of the Replacement Software have been returned or destroyed.
-16-
<PAGE>
EXHIBIT I
---------
Authorized Printer Engine Manufacturer Distributors
Authorized Printer Engine Manufacturer Distributors must be specified in
this Exhibit I. Licensed Systems must be specified in this Exhibit I. All
--------- ---------
requests for changes to this Exhibit must be submitted to Adobe in writing and
such changes shall apply only if subsequently approved by Adobe by the issuance
of an updated Exhibit I.
---------
<TABLE>
<CAPTION>
LICENSED SYSTEMS
THIRD-PARTY ACCELERATOR CARD DESIGNATED OUTPUT DEVICE/MODEL
- ----------- ---------------- ------------------------------
<S> <C> <C>
Fuji Xerox Midrange SM-ICS A Color 630
A Color 635
Fuji Xerox High-end SM-ICS A Color 630
A Color 635
Xerox Midrange SM-ICS Majestic
Xerox High-end SM-ICS Majestic
Rank Xerox Midrange SM-ICS Majestic
Rank Xerox High-end SM-ICS Majestic
</TABLE>
-17-
<PAGE>
AMENDMENT NO. 3
TO THE
CONFIGURABLE POSTSCRIPT(TM) INTERPRETER
OEM LICENSE AGREEMENT
AND AMENDMENT NO. 3 TO APPENDIX NO. 1
AND AMENDMENT NO. 1 TO APPENDICES NOS. 2 AND 3
BETWEEN
ADOBE SYSTEMS INCORPORATED
AND
SUPERMAC TECHNOLOGY INCORPORATED
Effective date: September 19, 1994
------------------
THIS AMENDMENT NO. 3 (the "Amendment") to the Configurable PostScript
Interpreter OEM License Agreement (the "Agreement") between SuperMac Technology
Incorporated ("OEM") and Adobe Systems Incorporated ("Adobe") effective as of
September 18, 1992, amends the Agreement and Appendices Nos. 1, 2, and 3 in
certain respects as follows:
WHEREAS, Adobe has revised its procedures for bundling Coded Font Programs
for use with Licensed Systems incorporating a version of the CPSI Application;
WHEREAS, Adobe has standardized its procedures regarding royalty payments
for such bundled Coded Font Programs;
NOW, THEREFORE, the parties agree to modify and amend the Agreement and
Appendix No. 1 and Appendix No. 2 and Appendix No. 3 as follows:
A. Adobe and OEM hereby agree to modify the Agreement as follows:
1. Paragraph 1.4 ("Coded Font Programs"): Paragraph 1.4 ("Coded Font
------------- -------------
Programs") is hereby amended by adding the phrase: ", in Schedule 1 to
----------
Exhibit K ("Licensed Use Royalties for Coded Font Programs") hereto" before
---------
the phrase: "or in the applicable CPSI Application Appendix hereto" in
lines four and five and before the phrase "or in any CPSI Application
Appendix" in the last line.
2. Paragraph 1.4.1 ("Roman Initial Installation Coded Font Programs")
---------------
and Paragraph 1.4.2 ("Roman Additional Coded Font Programs"): Paragraph
--------------- ---------
1.4.1 ("Roman Initial Installation Coded Font Programs") and Paragraph
----- ---------
1.4.2 ("Roman Additional Coded Font Programs") are hereby amended to add
-----
the
-1-
<PAGE>
phrase: ", in Schedule 1 to Exhibit K ("Licensed Use Royalties for
---------- ---------
Coded Font Programs") hereto" before the phrase: "or in a CPSI Application
Appendix hereto" in line four of each Paragraph.
3. Paragraph 1.4.3 ("Other Coded Font Programs"): Paragraph 1.4.3
--------------- ---------------
("Other Coded Font Programs") is hereby amended to add the phrase: "which
are identified in Schedule 2 to Exhibit K ("Licensed Use Royalties for
---------- ---------
Coded FONT Programs") hereto or" before the phrase: "which are identified
in a CPSI Application Appendix hereto" in lines three and four.
4. Paragraph 1.19 ("Typeface"): Paragraph 1.19 ("Typeface") is hereby
-------------- --------------
amended by adding the phrase: ", in Schedules 1 or 2 to Exhibit K
----------- - ---------
("Licensed Use Royalties for Coded Font Programs") hereto" before the
phrase: "or in any CPSI Application Appendix." in line 5.
5. Paragraph 7.2 ("Coded Font Program Royalties"): Paragraph 7.2 ("Coded
------------- -------------
Font Program Royalties") is hereby amended by adding the phrase: "in
accordance with the terms and conditions set forth in Exhibit K ("Licensed
---------
Use Royalties for Coded Font Programs") hereto or" before the phrase: "in
the amount specified in the applicable CPSI Application Appendix hereto" in
the last sentence.
6. Paragraph 10.1 ("Trademark License"): Paragraph 10.1 ("Trademark
-------------- --------------
License") is hereby amended by adding the phrase: ", in Schedules 1 or 2 to
----------- -
Exhibit K ("Licensed Use Royalties for Coded Font Programs") hereto" before
---------
the phrase: "or in a CPSI Application Appendix." in line 6 of the second
paragraph thereto.
7. Paragraph 10.2 ("Ownership of Trademarks"): Paragraph 10.2
-------------- --------------
("Ownership of Trademarks") is hereby amended by adding the phrase: ", in
Schedules 1 or 2 to Exhibit K ("Licensed Use Royalties for Coded Font
----------- - ---------
Programs") hereto" before the phrase: "or the applicable CPSI Application
Appendix," in line 15.
8. Exhibit K ("Licensed Use Royalties for Coded Font Programs"): Exhibit
--------- -------
K ("Licensed Use Royalties for Coded Font Programs") is hereby added to the
-
Agreement and is attached hereto.
B. Adobe and OEM hereby agree to modify the Appendix No. 1 to the Agreement as
follows:
1. Paragraph E ("Adobe Deliverables:"). Paragraph E(5) ("Coded Font
----------- --------------
Programs:") is hereby deleted in its entirety and replaced by the
following:
-2-
<PAGE>
"(5) Coded Font Programs: OEM shall bundle the Roman Coded Font Programs
-------------------
as per Paragraph 1(a) ("Roman Coded Font Programs") of Exhibit K
-------------- ---------
("Licensed Use Royalties for Coded Font Programs") with each Licensed
System distributed hereunder (a "Roman Version"). OEM agrees that
with each Licensed System distributed for use in Japan (a "Japanese
Version"), it shall bundle the same Roman Coded Font Programs as
specified above for Roman Versions. Additionally, OEM shall bundle
the Coded Font Programs for Japanese Typefaces as per Paragraph l(b)
--------------
("Coded Font Programs for Japanese Typefaces") and Paragraph 1(c)
--------------
("Distribution Media") of Exhibit K ("Licensed Use Royalties for
---------
Coded Font Programs"), with every Licensed System distributed for use
in Japan. OEM may license additional fonts for use with an existing
Licensed System but only as described in Paragraphs 1(d) and 1(e) of
--------------- ----
Exhibit K to the Agreement."
---------
2. Paragraph I ("Applicable Royalties:"). Paragraph I(2) ("Coded Font
----------- --------------
Program Royalties:") is hereby deleted in its entirety and replaced by the
following:
"(2) Coded Font Program Royalties: The Licensed Use Royalties for Coded
----------------------------
Font Programs distributed bundled with or as an upgrade to a Licensed
System under this Appendix shall be in accordance with Exhibit K
---------
("Licensed Use Royalties for Coded Font Programs") herein."
3. Paragraph J ("Roman Initial Installation Coded Font Programs:") is
-----------
hereby deleted in its entirety and replaced by the following:
"J. Roman Initial Installation Coded Font Programs:
The Roman Initial Installation Coded Font Programs distributed with
Licensed Systems under this Appendix shall be as set forth in
Paragraph 1 of Attachment 1 to Schedule 1 of Exhibit K ("Licensed Use
----------- ------------ ---------- ---------
Royalties for Coded Font Programs") and in Paragraph 1 ("Coded Font
-----------
Program Distribution") to Exhibit K herein."
---------
4. Paragraph K ("Roman Additional Coded Font Programs:") is hereby
-----------
deleted in its entirety and replaced by the following:
"K. Roman Additional Coded Font Programs:
The Roman Additional Coded Font Programs distributed with
Licensed Systems under this Appendix shall be as set forth in
Paragraph 2 of Attachment 1 to Schedule 1 of Exhibit K
----------- ------------ ---------- ---------
("Licensed Use Royalties for Coded Font Programs") and in
Paragraph 1 ("Coded Font Program Distribution") to Exhibit K
----------- ---------
herein."
-3-
<PAGE>
5. Paragraph L ("Coded Font Programs for Japanese Typefaces:") is hereby
-----------
deleted in its entirety and replaced by the following:
"L. Coded Font Programs for Japanese Typefaces:
The Coded Font Programs for Japanese Typefaces distributed with
Licensed Systems under this Appendix shall be as set forth in
Paragraph 1 of Schedule 2 to Exhibit K ("Licensed Use Royalties for
----------- ---------- ---------
Coded Font Programs") and in Paragraph 1 ("Coded Font Program
-----------
Distribution") to Exhibit K herein."
---------
C. Adobe and OEM hereby agree to modify the Appendix No. 2 to the Agreement as
follows:
1. Paragraph I ("Applicable Royalties:"). Subparagraph I(1)d.(ii)
----------- -----------------------
("Japanese List Price.") is hereby deleted in its entirety and replaced by
the following:
"(ii) Japanese List Price. The Japanese List Price shall
-------------------
mean OEM's published List Price in Japanese yen to End Users for
quantity one (1) of a fully functioning Japanese Version with the
minimum required Coded Font Programs for Japanese Typefaces (as
described in Paragraph I(2)b, as amended, below) of a Licensed System
---------------
as described in Paragraph C above, for distribution in Japan. The
-----------
Japanese List Price shall apply for the purpose of royalty
calculations hereunder for each Licensed Use of a Japanese Version of
the Licensed System distributed for use throughout the world. The
Japanese List Price shall be converted into U.S. Dollars at a rate
equal to the average of the exchange rates quoted in the Wall Street
Journal at the end of the first and last days of the relevant
quarterly accounting period defined in Paragraph 7.5 ("Payment of
-------------
Royalties") of the Agreement. OEM shall use the converted Japanese
List Price to calculate the royalty for CPSI Application hereunder."
2. Paragraph I ("Applicable Royalties:"). Paragraph I(2) ("Licensed Use
----------- --------------
Royalty for CPSI Application:") is hereby deleted in its entirety and
replaced by the following:
"(2) Licensed Use Royalties for CPSI Application:
-------------------------------------------
a. Roman Versions. OEM shall bundle the Roman Coded Font
--------------
Programs in accordance with Paragraph 1(a) ("Roman Coded Font
Programs") of Exhibit K ("Licensed Use Royalties for Coded Font
---------
-4-
<PAGE>
Programs") with each Licensed System distributed hereunder (a "Roman
Version").
[*]
b. Japanese Versions. OEM agrees that with each Licensed System
-----------------
distributed for use in Japan (a "Japanese Version"), it shall bundle
the same Roman Coded Font Programs as specified in Paragraph I(2)a
---------------
above for Roman Versions. Additionally, OEM shall bundle the Coded
Font Programs for Japanese Typefaces in accordance with Paragraph
---------
l(b) ("Coded Font Programs for Japanese Typefaces") and Paragraph
---- ---------
l(c) ("Distribution Media") of Exhibit K ("Licensed Use Royalties for
---- ---------
Coded Font Programs"), with every Licensed System distributed for use
in Japan. Font upgrades may be distributed in accordance with
Paragraphs l(d) ("Distribution of Japanese Versions and Font
---------------
Upgrades") and 1(f) ("Distribution of CPSI Application with Font
----
Upgrade") of Exhibit K to the Agreement.
---------
[*]
-5-
[*] Confidential Treatment Requested.
<PAGE>
3. Paragraph I ("Applicable Royalties:"). Paragraph I(5) ("Licensed Use
----------- --------------
Royalty for Coded Font Programs:") is hereby deleted in its entirety and
replaced by the following:
"(5) Licensed Use Royalties for Coded Font Programs:
----------------------------------------------
The Licensed Use Royalties for Coded Font Programs distributed
bundled with or as an upgrade to a Licensed System under this
Appendix shall be in accordance with Paragraph 2 of Exhibit K
----------- ---------
("Licensed Use Royalties for Coded Font Programs") herein."
4. Paragraph J ("Roman Initial Installation Coded Font Programs:") is
-----------
hereby deleted in its entirety and replaced by the following:
"J. Roman Initial Installation Coded Font Programs:
The Roman Initial Installation Coded Font Programs distributed with
Licensed Systems under this Appendix shall be as set forth in
Paragraph 1 of Attachment 1 to Schedule 1 of Exhibit K ("Licensed Use
----------- ------------ ---------- ---------
Royalties for Coded Font Programs") and in Paragraph 1 ("Coded Font
Program Distribution") to Exhibit K herein."
---------
5. Paragraph K ("Additional Coded Font Programs:") is hereby deleted in
-----------
its entirety and replaced by the following:
"K. Roman Additional and Other Coded Font Programs:
(1) The Roman Additional Coded Font Programs distributed with Licensed
Systems under this Appendix No. 2 shall be as set forth in Paragraph 2 of
-----------
Attachment 1 to Schedule 1 of Exhibit K ("Licensed Use Royalties for Coded
------------ ---------- ---------
Font Programs") and in Paragraph 1 ("Coded Font Program Distribution") of
-----------
Exhibit K herein.
---------
(2) The Coded Font Programs for Japanese Typefaces distributed with
Licensed Systems under this Appendix No. 2 shall be as set forth in
Paragraph 1 to Schedule 2 of Exhibit K ("Licensed Use Royalties for Coded
----------- ---------- ---------
Font Programs") and in Paragraph 1 ("Coded Font Program Distribution") of
-----------
Exhibit K herein."
---------
D. Adobe and OEM hereby agree to modify the Appendix No. 3 to the Agreement as
follows:
1. Paragraph I ("Applicable Royalties:"). Subparagraph I(1)c.(ii)
----------- -----------------------
("Japanese List Price.") is hereby deleted in its entirety and replaced by
the following:
-6-
<PAGE>
"(ii) Japanese List Price. The Japanese List Price shall mean
-------------------
OEM's published List Price in Japanese yen to End Users for
quantity one (1) of a Japanese Version with the minimum required
Coded Font Programs for Japanese Typefaces (as described in
Paragraph I(2)b, as amended, below) of a Licensed System with
---------------
Minimum Configuration as described in Paragraph C above, for
-----------
distribution in Japan. The Japanese List Price shall apply for the
purpose of royalty calculations hereunder for each Licensed Use of
a Japanese Version of the Licensed System distributed for use
throughout the world. The Japanese List Price shall be converted
into U.S. Dollars at a rate equal to the average of the exchange
rates quoted in the Wall Street Journal at the end of the first and
last days of the relevant quarterly accounting period defined in
Paragraph 7.5 ("Payment of Royalties") of the Agreement. OEM shall
-------------
use the converted Japanese List Price to calculate the royalty for
CPSI Application hereunder."
2. Paragraph I ("Applicable Royalties:"). Paragraph I(2) ("Licensed Use
----------- --------------
Royalty for CPSI Application:") is hereby deleted in its entirety and
replaced by the following:
"(2) Licensed Use Royalty for CPSI Application:
-----------------------------------------
a. Roman Versions. OEM shall bundle the Roman Coded Font
--------------
Programs in accordance with Paragraph 1(a) ("Roman Coded Font
Programs") of Exhibit K ("Licensed Use Royalties for Coded Font
---------
Programs") with each Licensed System distributed hereunder (a "Roman
Version").
[*]
-7-
[*] Confidential Treatment Requested.
<PAGE>
b. Japanese Versions. OEM agrees that with each Licensed System
-----------------
distributed for use in Japan (a "Japanese Version"), it shall bundle
the same Roman Coded Font Programs as specified in Paragraph I(2)a
---------------
above for Roman Versions. Additionally, OEM shall Bundle the Coded
Font Programs for Japanese Typefaces in accordance with Paragraph
---------
1(b) ("Coded Font Programs for Japanese Typefaces") and Paragraph
---- ---------
1(c) ("Distribution Media") of Exhibit K ("Licensed Use Royalties for
---- ---------
Coded Font Programs"), with every Licensed System distributed for use
in Japan. Font upgrades may be distributed in accordance with
Paragraphs l(d) ("Distribution of Japanese Versions and Font
---------------
Upgrades") and 1(f) ("Distribution of CPSI Application with Font
----
Upgrade") of Exhibit K to the Agreement.
---------
[*]
3. Paragraph I ("Applicable Royalties:"). Paragraph I(5) ("Licensed Use
----------- --------------
Royalty for Coded Font Programs:") is hereby deleted in its entirety
and replaced by the following:
"(5) Licensed Use Royalties for Coded Font Programs:
----------------------------------------------
The Licensed Use Royalties for Coded Font Programs distributed
bundled with or as an upgrade to a Licensed System under this
Appendix shall be in accordance with Paragraph 2 of Exhibit K
----------- ---------
("Licensed Use Royalties for Coded Font Programs") herein."
4. Paragraph J ("Roman Initial Installation Coded Font Programs:") is
-----------
hereby deleted in its entirety and replaced by the following:
"J. Roman Initial Installation Coded Font Programs:
The Roman Initial Installation Coded Font Programs distributed with
Licensed Systems under this Appendix shall be as set forth in
Paragraph 1 of Attachment 1 to Schedule 1 of Exhibit K ("Licensed Use
----------- ------------ ---------- ---------
Royalties for Coded Font Programs") and in Paragraph 1 ("Coded Font
Program Distribution") to Exhibit K herein."
---------
-8-
[*] Confidential Treatment Requested.
<PAGE>
5. Paragraph K ("Additional Coded Font Programs:") is hereby deleted in
-----------
its entirety and replaced by the following:
"K. Roman Additional and Other Coded Font Programs:
(1) The Roman Additional Coded Font Programs distributed with Licensed
Systems under this Appendix No. 3 shall be as set forth in Paragraph
---------
2 of Attachment 1 to Schedule 1 of Exhibit K ("Licensed Use Royalties
- ------------ ---------- ---------
for Coded Font Programs") and in Paragraph 1 ("Coded Font Program
-----------
Distribution") of Exhibit K herein.
---------
(2) The Coded Font Programs for Japanese Typefaces distributed with
Licensed Systems under this Appendix No. 3 shall be as set forth in
Paragraph 1 to Schedule 2 of Exhibit K ("Licensed Use Royalties for
----------- ---------- ---------
Coded Font Programs") and in Paragraph 1 ("Coded Font Program
-----------
Distribution") of Exhibit K herein."
---------
E. All other terms and conditions of the Agreement and of Appendix No. 1 to
the Agreement and of Appendix No. 2 to the Agreement and of Appendix No. 3 to
the Agreement, as amended, shall remain in full force and effect.
Adobe: OEM:
ADOBE SYSTEMS INCORPORATED SUPERMAC TECHNOLOGY
INCORPORATED
By:/s/ S.A. MacDonald By:/s/ Mark Housley
------------------------------------ ----------------------------------
Print Print
Name:S.A. MacDonald Name: Mark Housley
---------------------------------- -------------------------------
Title:Sr. V.P., General Manager, SPD Title General Manager
--------------------------------- -------------------------------
Date: 9/22/94 Date: 9/19/94
---------------------------------- --------------------------------
-9-
<PAGE>
EXHIBIT K
---------
Licensed Use Royalties for Coded Font Programs
1. Coded Font Program Distribution.
-------------------------------
OEM may reproduce the Coded Font Programs delivered by Adobe hereunder solely at
the Reproduction Locations and only for distribution with Licensed Systems.
(a) Roman Coded Font Programs. OEM agrees that with each Licensed System
-------------------------
distributed for use outside of Japan (a "Roman Version"), OEM shall bundle the
Roman Initial Installation Coded Font Programs identified in Paragraph 1 of
-----------
Attachment 1 attached hereto. OEM may also distribute a Roman Version bundled
- ------------
with Roman Additional Coded Font Programs or Other Coded Font Programs solely in
one of the Optional Packages specified in Attachment 1 to Schedule 1 to this
------------ ----------
Exhibit K.
- ---------
(b) Coded Font Programs for Japanese Typefaces. OEM agrees that with each
------------------------------------------
Licensed System distributed for use in Japan (a "Japanese Version"), it shall
bundle the same Roman Initial Installation Coded Font Programs as specified in
Paragraph l(a) of this Exhibit K for Roman Versions. Additionally, with each
- -------------- ---------
Japanese Version, OEM shall bundle a minimum of the [*] Coded Font
Programs for Japanese Typefaces identified in Paragraph 1 of Schedule 2 to this
----------- ----------
Exhibit K
- ---------
[*] OEM may also distribute a Japanese Version bundled with
[*] Coded Font Programs for Japanese Typefaces in any of the bundled
configurations specified in Schedule 2.
(c) Distribution Media. Such Coded Font Programs for Japanese Typefaces
------------------
will be distributed on mutually agreeable distribution media and will be
encrypted and copy-protected against unauthorized duplication in a manner to be
specified by Adobe. In particular, to prevent an End User from substituting one
font configuration for the original font configuration licensed with the
Licensed System, OEM shall employ a different set of code ROMs (with a different
identification code) to distinguish the original font configuration from the
other font configuration. Special character set encodings are not provided.
(d) Distribution of Japanese Versions and Font Upgrades. OEM is not
---------------------------------------------------
required to bundle the Coded Font Programs for Japanese Typefaces with Licensed
Systems distributed for use outside of Japan. However, if OEM decides to
distribute
-10-
[*] Confidential Treatment Requested.
<PAGE>
Licensed Systems with Coded Font Programs for Japanese Typefaces for
use outside of Japan, it shall bundle the Coded Font Programs for Japanese
Typefaces in accordance with Paragraphs l(b) and (c) above. Where OEM has
--------------- ---
distributed a Roman Version and wishes to upgrade such Roman Version to the
corresponding Japanese Version, OEM may do so, provided that the Coded Font
Programs for Japanese Typefaces are bundled as an upgrade in accordance with
Paragraphs l(b) and (c) above. Except for such initial upgrade for a Roman
- -------------- ---
Version, OEM may not distribute additional Coded Font Programs for Japanese
Typefaces in an unbundled form for the purpose of upgrading an existing Licensed
System from one font configuration to another. If OEM desires to offer to
customers additional Coded Font Programs for Japanese Typefaces, it may license
the additional aftermarket fonts in retail product version directly from Adobe
or Morisawa to provide to OEM's End Users.
(e) Font Upgrades for Roman Versions. OEM may upgrade an existing Roman
--------------------------------
Version of a Licensed System by adding one or more of the Optional Packages
specified in Attachment 1 hereto.
------------
(f) Distribution of CPSI Application with Font Upgrade. OEM will not
--------------------------------------------------
distribute the CPSI Application Object with a font upgrade, as described in
Paragraph (d) or (e) above, unless expressly permitted in the applicable CPSI
- ------------- ---
Application Appendix, and under applicable terms set forth therein.
2. Licensed Use Royalty Payments for Coded Font Programs.
-----------------------------------------------------
(a) Roman Versions. For each Licensed Use of the Roman Initial
--------------
Installation Coded Font Programs, Roman Additional Coded Font Programs and Other
Coded Font Programs distributed bundled with or as an upgrade to a Licensed
System or used internally by OEM or its Subsidiaries (beyond the number of
Licensed Uses provided royalty-free for Internal Use under applicable CPSI
Application Appendices), OEM shall pay a per Typeface or Optional Package
royalty, as applicable, as set forth in Schedule 1 ("Licensed Use Royalties for
----------
Roman Coded Font Programs") hereto.
(b) Japanese Versions. For each Licensed Use of the Coded Font Programs
-----------------
for Japanese Typefaces distributed bundled with or as an upgrade to a Licensed
System or used internally by OEM or its Subsidiaries, OEM shall pay a per
Typeface royalty as set forth in Schedule 2 ("Licensed Use Royalties for Coded
----------
Font Programs for Japanese Typefaces") hereto.
-11-
<PAGE>
Schedule 1
----------
Licensed Use Royalties for Roman Coded Font Programs
1. Licensed Use Royalties for Roman Initial Installation Coded Font Programs.
-------------------------------------------------------------------------
The seventeen (17) Roman Initial Installation Coded Font Programs specified in
Paragraph 1 of Attachment 1 and bundled with a Licensed System shall be royalty-
- ----------- ------------
free.
2. Licensed Use Royalties for Optional Packages. OEM shall pay a per Licensed
--------------------------------------------
Use royalty for each Optional Package which is distributed bundled with or as an
upgrade to a Licensed System or used internally by OEM or its Subsidiaries
(beyond the number of Licensed Uses provided royalty-free for Internal Use under
applicable CPSI Application Appendices) based on the following royalty schedule,
using the published U.S. List Price for the Minimum Configuration of the
Licensed System. To calculate royalties due for Optional Package 4C, add the
applicable royalty due for the relevant line item in column 4C to the applicable
royalty due for the relevant line item in one or more of the other columns. For
example: If the published U.S. List Price of the Licensed System is greater than
[*] and OEM distributes Optional Package 65 with Optional Package 4C, then
the total royalty due to Adobe for the Other Coded Font Programs is equal to
[*] . The Coded Font Programs included in the Optional Packages are
listed in Attachment 1 hereto.
------------
[*]
-12-
[*] Confidential Treatment Requested.
<PAGE>
Attachment 1
------------
Optional Packages
1. Roman Initial Installation Coded Font Programs:
-----------------------------------------------
Adobe will provide the graphic characters specified in ISO 8859-1: 1987,
Latin alphabet No. 1 and symbol characters as applicable, for the following
Roman Initial Installation Coded Font Programs:
<TABLE>
<CAPTION>
IDENTIFYING TRADEMARK TYPEFACE TRADEMARK OWNER
--------------------- -------- ---------------
<S> <C> <C>
Helvetica Linotype-Hell AG and/or its subsidiaries
Helvetica Bold Linotype-Hell AG and/or its subsidiaries
Helvetica Oblique Linotype-Hell AG and/or its subsidiaries
Helvetica Bold Oblique Linotype-Hell AG and/or its subsidiaries
Times Roman Linotype-Hell AG and/or its subsidiaries
Times Bold Linotype-Hell AG and/or its subsidiaries
Times Italic Linotype-Hell AG and/or its subsidiaries
Times Bold Italic Linotype-Hell AG and/or its subsidiaries
Symbol (Public Domain)
Courier (Public Domain)
Courier Bold (Public Domain)
Courier Oblique (Public Domain)
Courier Bold Oblique (Public Domain)
Helvetica Narrow Linotype-Hell AG and/or its subsidiaries
Helvetica Narrow Bold Linotype-Hell AG and/or its subsidiaries
Helvetica Narrow Oblique Linotype-Hell AG and/or its subsidiaries
Helvetica Narrow Bold Oblique Linotype-Hell AG and/or its subsidiaries
</TABLE>
2. Roman Additional Coded Font Programs:
------------------------------------
Upon written notification by OEM, Adobe win provide the graphic characters
specified in ISO 8859-1: 1987, Latin alphabet No. 1 and symbol characters
as applicable, for the Roman Additional Coded Font Programs listed in the
Optional Packages as described below. After receipt of written request
from OEM, Adobe will provide the Macintosh compatible Bitmap Fonts in such
point sizes as Adobe has available for the Roman Additional Coded Font
Programs listed below. These Bitmap Fonts can only be used in conjunction
with a Licensed System.
(a) Optional Package 35N. "Optional Package 35N" shall consist of the
--------------------
Roman Initial Installation Coded Font Programs listed in Paragraph 1 above
-----------
plus the Roman Additional Coded Font Programs listed in this Paragraph 2.
-----------
<TABLE>
<CAPTION>
IDENTIFYING TRADEMARK TYPEFACE TRADEMARK OWNER
------------------------- ---------------------- ------------------------------------------
<S> <C> <C>
ITC Avant Garde Gothic Book International Typeface Corporation
ITC Avant Garde Gothic Book Oblique International Typeface Corporation
</TABLE>
-13-
<PAGE>
<TABLE>
<S> <C> <C>
ITC Avant Garde Gothic Demi International Typeface Corporation
ITC Avant Garde Gothic Demi Oblique International Typeface Corporation
ITC Bookman Light International Typeface Corporation
ITC Bookman Light ItalicInternational Typeface Corporation
ITC Bookman Light International Typeface Corporation
ITC Bookman Light Italicinternational Typeface Corporation
New Century Schoolbook Roman Public Domain
New Century Schoolbook Bold Public Domain
New Century Schoolbook Italic Public Domain
New Century Schoolbook Bold ItalicPublic Domain
ITC Zapf Chancery Medium ItalicInternational Typeface Corporation
ITC Zapf Dingbats International Typeface Corporation
Palatino Roman Linotype-Hell AG and/or its subsidiaries
Palatino Bold Linotype-Hell AG and/or its subsidiaries
Palatino Italic Linotype-Hell AG and/or its subsidiaries
Palatino Bold Italic Linotype-Hell AG and/or its subsidiaries
</TABLE>
(b) Optional Package 65. "Optional Package 65" shall consist of Optional
------------------- -------------------
Package 35N listed in Paragraph 2(a) above plus the thirty (30) Other Roman
--------------
Additional Coded Font Programs listed in this Paragraph 2(b).
--------------
<TABLE>
<S> <C> <C>
Adobe Caslon Regular Adobe Systems Incorporated
Adobe Caslon Italic Adobe Systems Incorporated
Adobe Caslon Semibold Adobe Systems Incorporated
Adobe Caslon Semibold Italic Adobe Systems Incorporated
Adobe Garamond Regular Adobe Systems Incorporated
Adobe Garamond Italic Adobe Systems Incorporated
Adobe Garamond Bold Adobe Systems Incorporated
Adobe Garamond Bold Italic Adobe Systems Incorporated
Barmeno Regular H. Berthold AG
Barmeno Medium H. Berthold AG
Barmeno Bold H. Berthold AG
Barmeno Extra Bold H. Berthold AG
Lithos Regular Adobe Systems Incorporated
Lithos Black Adobe Systems Incorporated
Trajan Bold Adobe Systems Incorporated
Adobe Wood Type 2 Ornaments Adobe Systems Incorporated
Blackoak Bold Adobe Systems Incorporated
Carta Map Symbols Adobe Systems Incorporated
Tekton Regular Adobe Systems Incorporated
Tekton Bold Adobe Systems Incorporated
Park Avenue Regular Kingsley/ATF Type Corporation
Poetica Ornaments RegularAdobe Systems Incorporated
Kaufmann Regular Kingsley/ATF Type Corporation
Americana Regular Kingsley/ATF Type Corporation
Americana Extra Bold Kingsley/ATF Type Corporation
Parisian Regular Kingsley/ATF Type Corporation
Formata Regular H. Berthold AG
Formata Medium H. Berthold AG
Formata Italic H. Berthold AG
Formata Medium Italic H. Berthold AG
</TABLE>
-14-
<PAGE>
(c) Optional Package 100. "Optional Package 100" shall consist of
--------------------
Optional Package 65 listed in Paragraph 2(b) above plus the thirty-five
(35) Other Roman Additional Coded Font Programs listed in this Paragraph
---------
2(c).
----
<TABLE>
<S> <C> <C>
ITC Lubalin Graph Book International Typeface Corporation
ITC Lubalin Graph BookOblique International Typeface Corporation
ITC Lubalin Graph BookDemi International Typeface Corporation
ITC Lubalin Graph BookDemi Oblique International Typeface Corporation
ITC Korinna Regular International Typeface Corporation
ITC Korinna Kursiv Regular International Typeface Corporation
ITC Korinna Bold International Typeface Corporation
ITC Korinna Kursiv Bold International Typeface Corporation
ITC Kabel Book International Typeface Corporation
ITC Kabel Medium International Typeface Corporation
ITC Kabel Demi International Typeface Corporation
ITC Kabel Bold International Typeface Corporation
ITC Kabel Ultra International Typeface Corporation
ITC Berkeley Oldstyle(R) Book International Typeface Corporation
ITC Berkeley Oldstyle Book Italic International Typeface Corporation
ITC Berkeley Oldstyle Medium International Typeface Corporation
ITC Berkeley Oldstyle Italic International Typeface Corporation
ITC Berkeley Oldstyle Bold International Typeface Corporation
ITC Berkeley Oldstyle Bold Italic International Typeface Corporation
ITC Berkeley Oldstyle Black International Typeface Corporation
ITC Berkeley Oldstyle Black Italic International Typeface Corporation
ITC Machine(R) Medium International Typeface Corporation
ITC Machine Bold International Typeface Corporation
ITC Flora(R) Medium International Typeface Corporation
ITC Flora Bold International Typeface Corporation
Copperplate Gothic 31AB Public Domain
Copperplate Gothic 31BC Public Domain
Brush Script Public Domain
Hobo Public Domain
Stencil Public Domain
Baker Signet Visual Graphics Corporation
Nuptial Script Linotype-Hell AG and/or its subsidiaries
Mythos(TM) Adobe Systems Incorporated
Birch(TM) Adobe Systems Incorporated
Umbra Ludlow
</TABLE>
(d) Optional Package 300. "Optional Package 300" shall consist of
--------------------
Optional Roman 100 listed in Paragraph 2(c) above plus the two hundred
(200) Other Roman Additional Coded Font Programs listed in this Paragraph
2(d).
<TABLE>
<S> <C> <C>
Goudy Old Style Public Domain
Goudy Bold Public Domain
Goudy Old Style Italic Public Domain
Goudy Bold Italic Public Domain
Goudy ExtraBold Public Domain
Goudy Heavyface Public Domain
</TABLE>
-15-
<PAGE>
<TABLE>
<S> <C> <C>
Goudy Heavyface Italic Public Domain
Sonata Adobe Systems Incorporated
Letter Gothic Public Domain
Letter Gothic Bold Public Domain
Letter Gothic Slanted Public Domain
Letter Gothic Bold Slanted Public Domain
Cooper Black Public Domain
Cooper Black Italic Public Domain
ITC Stone Serif International Typeface Corporation
ITC Stone Serif Semibold International Typeface Corporation
ITC Stone Serif Italic International Typeface Corporation
ITC Stone Serif Semibold Italic International Typeface Corporation
ITC Stone Serif Bold International Typeface Corporation
ITC Stone Serif Bold Italic International Typeface Corporation
ITC Stone Sans Bold International Typeface Corporation
ITC Stone Sans Bold Italic International Typeface Corporation
ITC Stone Sans International Typeface Corporation
ITC Stone Sans Semibold International Typeface Corporation
ITC Stone Sans Italic International Typeface Corporation
ITC Stone Sans Semibold ItalicInternational Typeface Corporation
Kaufmann Bold Kingsley/ATF Type Corporation
Americana Bold Kingsley/ATF Type Corporation
Americana Italic Kingsley/ATF Type Corporation
Century Expanded Linotype-Hell AG and/or its subsidiaries
Century Expanded Italic Linotype-Hell AG and/or its subsidiaries
Caslon Open Face Linotype-Hell AG and/or its subsidiaries
Gothic 13 Linotype-Hell AG and/or its subsidiaries
Tempo Heavy Condensed Ludlow
Tempo Heavy Condensed Italic Ludlow
Adobe Garamond Semibold Adobe Systems Incorporated
Adobe Garamond Semibold Italic Adobe Systems Incorporated
Adobe Garamond Regular, SC Adobe Systems Incorporated
Adobe Garamond Semibold, SC Adobe Systems Incorporated
Franklin Gothic Roman Linotype-Hell AG and/or its subsidiaries
Franklin Gothic Condensed Linotype-Hell AG and/or its subsidiaries
Franklin Gothic Extra Condensed Linotype-Hell AG and/or its subsidiaries
Utopia Regular Adobe Systems Incorporated
Utopia Semibold Adobe Systems Incorporated
Utopia Italic Adobe Systems Incorporated
Utopia Semibold Italic Adobe Systems Incorporated
Utopia Bold Adobe Systems Incorporated
Utopia Bold Italic Adobe Systems Incorporated
Utopia Black Adobe Systems Incorporated
Utopia Regular, SC Adobe Systems Incorporated
Utopia Semibold, SC Adobe Systems Incorporated
Copperplate Gothic 29AB Public Domain
Copperplate Gothic 29BC Public Domain
Copperplate Gothic 30AB Public Domain
Copperplate Gothic 30BC Public Domain
Copperplate Gothic 32AB Public Domain
Copperplate Gothic 32BC Public Domain
Copperplate Gothic 33BC Public Domain
</TABLE>
-16-
<PAGE>
<TABLE>
<S> <C> <C>
Charlemagne Regular Adobe Systems Incorporated
Charlemagne Bold Adobe Systems Incorporated
Mesquite Adobe Systems Incorporated
Woodtype Ornaments 1 Adobe Systems Incorporated
Tekton Oblique Adobe Systems Incorporated
Tekton Bold Oblique Adobe Systems Incorporated
Minion Regular Adobe Systems Incorporated
Minion Semibold Adobe Systems Incorporated
Minion Italic Adobe Systems Incorporated
Minion Semibold Italic Adobe Systems Incorporated
Minion Bold Adobe Systems Incorporated
Minion Bold Italic Adobe Systems Incorporated
Minion Regular, SC Adobe Systems Incorporated
Minion Semibold, SC Adobe Systems Incorporated
Minion Italic SC Adobe Systems Incorporated
Minion Semibold Italic, SC Adobe Systems Incorporated
Rockwell Monotype Corporation
Rockwell Bold Monotype Corporation
Rockwell Italic Monotype Corporation
Rockwell Bold Italic Monotype Corporation
Rockwell Light Monotype Corporation
Rockwell Light Italic Monotype Corporation
Willow Adobe Systems Incorporated
Madrone Adobe Systems Incorporated
Adobe Caslon Bold Adobe Systems Incorporated
Adobe Caslon Bold Italic Adobe Systems Incorporated
Adobe Caslon Regular, SC Adobe Systems Incorporated
Adobe Caslon Semibold, SC Adobe Systems Incorporated
Poppl-Pontifex Regular H. Berthold AG
Poppl-Pontifex Medium H. Berthold AG
Poppi-Pontifex Italic H. Berthold AG
Poppi-Pontifex Bold H. Berthold AG
Poppl-Pontifex Medium Condensed H. Berthold AG
Bell Gothic Light Public Domain
Bell Gothic Bold Public Domain
Bell Gothic Black Public Domain
MinionCyrillic Regular Adobe Systems Incorporated
MinionCyrillic Semibold Adobe Systems Incorporated
MinionCyrillic Italic Adobe Systems Incorporated
MinionCyrillic Semibold Italic Adobe Systems Incorporated
MinionCyrillic Bold Adobe Systems Incorporated
MinionCyrillic Bold Italic Adobe Systems Incorporated
ITC Stone Informal International Typeface Corporation
ITC Stone Informal Semibold International Typeface Corporation
ITC Stone Informal Italic International Typeface Corporation
ITC Stone Informal Semibold Italic International Typeface Corporation
ITC Stone Informal Bold International Typeface Corporation
ITC Stone Informal Bold Italic International Typeface Corporation
Trajan Regular Adobe Systems Incorporated
Lithos Extra Light Adobe Systems Incorporated
Lithos Light Adobe Systems Incorporated
Lithos Bold Adobe Systems Incorporated
</TABLE>
-17-
<PAGE>
<TABLE>
<S> <C> <C>
Gill Sans Monotype Corporation
Gill Sans Bold Monotype Corporation
Gill Sans Italic Monotype Corporation
Gill Sans Bold Italic Monotype Corporation
Gill Sans Light Monotype Corporation
Gill Sans Light Italic Monotype Corporation
Gill Sans Condensed Monotype Corporation
Gill Sans Bold Condensed Monotype Corporation
Gill Sans Ultra Bold Condensed Monotype Corporation
Gill Sans Extra Bold Monotype Corporation
Gill Sans Ultra Bold Monotype Corporation
Bembo Monotype Corporation
Bembo Bold Monotype Corporation
Bembo Italic Monotype Corporation
Bembo Bold Italic Monotype Corporation
Bembo Semibold Monotype Corporation
Bembo Semibold Italic Monotype Corporation
Bembo Extra Bold Monotype Corporation
Bembo Extra Bold Italic Monotype Corporation
Rockwell Condensed Monotype Corporation
Rockwell Bold Condensed Monotype Corporation
Rockwell Extra Bold Monotype Corporation
Plantin Monotype Corporation
Plantin Bold Monotype Corporation
Plantin Italic Monotype Corporation
Plantin Bold Italic Monotype Corporation
Perpetua Monotype Corporation
Perpetua Bold Monotype Corporation
Perpetua Italic Monotype Corporation
Perpetua Bold Italic Monotype Corporation
Nofret Light H. Berthold AG
Nofret Light Italic H. Berthold AG
Nofret Regular H. Berthold AG
Nofret Medium H. Berthold AG
Nofret Italic H. Berthold AG
Nofret Medium Italic H. Berthold AG
Nofret Bold H. Berthold AG
Nofret Bold Italic H. Berthold AG
Plantin Light Monotype Corporation
Plantin Light Italic Monotype Corporation
Plantin Semibold Monotype Corporation
Plantin Semibold Italic Monotype Corporation
Plantin Bold Condensed Monotype Corporation
Centaur Regular Monotype Corporation
Centaur Bold Monotype Corporation
Centaur Italic Monotype Corporation
Centaur Bold Italic Monotype Corporation
Joanna Regular Monotype Corporation
Joanna Bold Monotype Corporation
Joanna Italic Monotype Corporation
Joanna Bold Italic Monotype Corporation
Joanna Semibold Monotype Corporation
</TABLE>
-18-
<PAGE>
<TABLE>
<S> <C> <C>
Joanna Semibold Italic Monotype Corporation
Joanna Extra Bold Monotype Corporation
ITC StoneSans Phonetic IPA International Typeface Corporation
ITC StoneSans Phonetic Alternate International Typeface Corporation
ITC StoneSerif Phonetic IPA International Typeface Corporation
ITC StoneSerif Phonetic Alternate International Typeface Corporation
Poetica Chancery I Adobe Systems Incorporated
Poetica Chancery II Adobe Systems Incorporated
Poetica Chancery III Adobe Systems Incorporated
Poetica Chancery IV Adobe Systems Incorporated
Poetica Roman Small Caps Adobe Systems Incorporated
Delta Jaeger Light H. Berthold AG
Delta Jaeger Light Italic H. Berthold AG
Delta Jaeger Book H. Berthold AG
Delta Jaeger Medium H. Berthold AG
Delta Jaeger Italic H. Berthold AG
Delta Jaeger Medium Italic H. Berthold AG
Delta Jaeger Bold H. Berthold AG
Delta Jaeger Bold Italic H. Berthold AG
Delta Jaeger Outline H. Berthold AG
Formata Condensed H. Berthold AG
Formata Medium Condensed H. Berthold AG
Formata Condensed ltalic H. Berthold AG
Formata Med Condensed Italic H. Berthold AG
</TABLE>
<TABLE>
<S> <C> <C>
ITC Legacy Sans Book InternationalTypeface Corporation
ITC Legacy Sans Book Italic International Typeface Corporation
ITC Legacy Sans Medium International Typeface Corporation
ITC Legacy Sans Medium Italic International Typeface Corporation
ITC Legacy Sans Bold International Typeface Corporation
ITC Legacy Sans Bold Italic International Typeface Corporation
ITC Legacy Sans Ultra International Typeface Corporation
ITC Legacy Serif Book International Typeface Corporation
ITC Legacy Serif Book Italic International Typeface Corporation
ITC Legacy Serif Medium International Typeface Corporation
ITC Legacy Serif Medium Italic International Typeface Corporation
ITC Legacy Serif Bold International Typeface Corporation
ITC Legacy Serif Bold Italic International Typeface Corporation
ITC Legacy Serif Ultra International Typeface Corporation
</TABLE>
(e) Optional Package 4C. "Optional Package 4C" shall consist of the four
-------------------
(4) Roman Additional Coded Font Programs fisted in this Paragraph 2(e).
--------------
Optional Package 4C may be distributed with Optional Package 35N, Optional
Package 65, Optional Package 100, or Optional Package 300, for use with a
Licensed System.
<TABLE>
<S> <C> <C>
Helvetica Condensed Linotype-Hell AG and/or its subsidiaries
Helvetica Condensed Bold Linotype-Hell AG and/or its subsidiaries
Helvetica Condensed Oblique Linotype-Hell AG and/or its subsidiaries
Helvetica Condensed Bold Oblique Linotype-Hell AG and/or its subsidiaries
</TABLE>
-19-
<PAGE>
Schedule 2
Licensed Use Royalties for Coded Font Programs for Japanese Typefaces
1. Coded Font Programs for Japanese Typefaces:
------------------------------------------
Upon written notification by OEM, Adobe will provide the Adobe Standard Japanese
Character set, which includes JIS, Shift JIS, and EUC encodings of the JIS X
0208 1983 Level 1 and Level 2 characters, plus other characters and encodings as
defined in Adobe's Kanji Glyph Collection and Glyph Sets Technical Note #5031,
----------------------------------------------------------
dated November 12, 1990, for the following Coded Font Programs for Japanese
Typefaces. Generic characters listed therein are not typeface specific. OEM
shall distribute the Coded Font Programs for Japanese Typefaces bundled with or
as an upgrade to a Licensed System, only in the following configurations:
(a) The first two (2), as listed below [*]
(b) The first five (5), as listed below [*]
(c) The first seven (7), as listed below,
(d) All, as listed below:
<TABLE>
<CAPTION>
Identifying Trademark Trademark Owner
--------------------- ---------------
<S> <C>
Ryumin Light KL Morisawa & Co., Ltd.
Gothic Medium BBB Morisawa & Co., Ltd.
Futo Min A101 Morisawa & Co., Ltd.
Futo Go B101 Morisawa & Co., Ltd.
Jun 101 Morisawa & Co., Ltd.
Midashi Min MA31 Morisawa & Co., Ltd.
Midashi Go MB31 Morisawa & Co., Ltd.
ShinseiKaisho CBSK1 Morisawa & Co., Ltd.
Ryumin Medium M-KL Morisawa & Co., Ltd.
Ryumin Ultra U-KL Morisawa & Co., Ltd.
Shin Gothic L (Light) Morisawa & Co., Ltd.
Shin Gothic M (Medium) Morisawa & Co., Ltd.
Shin Gothic B (Bold) Morisawa & Co., Ltd.
Shin Gothic U (Ultra) Morisawa & Co., Ltd.
</TABLE>
After receipt of written request from OEM, Adobe will provide the Macintosh
compatible Bitmap Fonts for Futo Min A101, Futo Go B101, Jun 101, Midashi Min,
MA31, Midashi Go MB31, ShinseiKaisho CBSK1, Ryumin Medium M-KL, Ryumin Bold B-
KL, Ryumin Ultra U-KL, Shin Gothic L, Shin Gothic M, Shin Gothic B and Shin
-20-
[*] Confidential Treatment Requested.
<PAGE>
Gothic U. OEM may distribute these Bitmap Fonts without additional charge
provided that they are used only in conjunction with a Licensed System. Bitmap
Fonts for Ryumin Light KL and Gothic Medium BBB will not be provided, since they
are available to the End User bundled with Apple's KanjiTalk(TM) system
software.
2. Licensed Use Royalties. For the Coded Font Programs for Japanese Typefaces
----------------------
described in Paragraph 1 above which are distributed or used internally by OEM
-----------
or its Subsidiaries and bundled as part of a Licensed System or as an upgrade to
an existing Licensed System, as permitted hereunder, OEM shall pay Adobe a per
Typeface royalty for each Licensed Use of the Coded Font Programs for Japanese
Typefaces as described below.
(a) Licensed Systems with Color Designated Output Devices [*]:
---------------------------------------------------------
For Licensed Systems with a color Designated Output device capable of [*], the
per Typeface royalty for internal use or distribution of the Coded Font Programs
for Japanese Typefaces shall be calculated using the following procedure and
with the tables below:
Step 1: Determine the number of each of the Japanese Font Bundles
shipped during the quarter.
Step 2: Multiply each number of Japanese Font Bundles shipped during
the quarter (as determined in Step 1 above) by the applicable
Base Royalty per Font Bundle as shown in Table 1 below and
aggregate the result. This is the quarterly base aggregate
Licensed Use royalties for Coded Font Programs for Japanese
Typefaces.
[*]
-21-
[*] Confidential Treatment Requested.
<PAGE>
[*]
-22-
[*] Confidential Treatment Requested.
<PAGE>
[*]
-23-
[*] Confidential Treatment Requested.
<PAGE>
[*]
(B) Licensed Systems With a Black and White Designated Output Device [*].
--------------------------------------------------------------------
For Licensed Systems with a black and white Designated output Device [*] the per
Typeface royalty for internal use or distribution of the Coded Font Programs for
Japanese Typefaces can be calculated using the following procedure and with the
table below:
Step 1: Determine the number of Japanese typefaces shipped during the
quarter.
Step 2: Multiply the number of Japanese Typefaces shipped during the
quarter (as determined in step 1 above) by the applicable Royalty
per Typeface as shown in the Royalty Table below and aggregate
the result. This is the quarterly aggregate Licensed Use
royalties for Coded Font Programs for Japanese Typefaces due for
the quarter.
[*]
-24-
[*] Confidential Treatment Requested.
<PAGE>
(c) Licensed Systems With a Black and White or Color Designated Output
------------------------------------------------------------------
Device greater than 600 dpi. For Licensed Systems with a black and white or
------------
color Designated Output Device capable of [*], the per Typeface royalty for
internal use or distribution of the Coded Font Programs for Japanese Typefaces
shall be calculated using the following procedure and with the tables below:
Step 1: Determine the number of each of the Japanese Font Bundles shipped
during the quarter.
Step 2: Multiply each number of Japanese Font Bundles shipped during the
quarter (as determined in Step 1 above) by the applicable Royalty
per Font Bundle as shown in the Royalty Table below and aggregate
the result. This is the quarterly aggregate Licensed Use
royalties for Coded Font Programs for Japanese Typefaces due for
the quarter.
[*]
[*] Confidential Treatment Requested.
<PAGE>
APPENDIX NO. 1
EFFECTIVE AS OF SEPTEMBER 18, 1992
------------
TO
CONFIGURABLE POSTSCRIPT(R) INTERPRETER
OEM LICENSE AGREEMENT
BETWEEN
ADOBE SYSTEMS INCORPORATED AND SUPERMAC TECHNOLOGY
Name of CPSI Application: Macintosh Level 2 Adobe Software RIP
This Appendix sets forth additional and different terms and conditions
particular to the Licensed System described below and shall be incorporated by
reference into the Configurable PostScript Interpreter OEM License Agreement
("Agreement") between SuperMAC Technology ("OEM") and Adobe Systems Incorporated
("Adobe") effective as of September 18, 1992. Such different or additional
------------
terms are applicable only to the Licensed System described below and in no way
alter the terms and conditions applicable to other Licensed Systems incorporated
into the Agreement by addition of an appendix.
All the terms used in this Appendix shall retain the same meaning as
defined in the Agreement and such definitions are incorporated herein by
reference.
A. Description of CPSI Application:
ProofPositive Color Printer Software RIP running on an Apple Macintosh
computer.
B. Description of Computer System:
[*]
OEM may use the CPSI Application to generate output from devices other than
those listed in this paragraph only within OEM's internal development group and
only for testing purposes within that group. New devices must be added to this
Appendix by an addendum before OEM may install such devices for use with the
CPSI Application outside the development group. If [*]. OEM shall authorize use
of the CPSI application to generate output only on devices that have been
approved by Adobe in accordance with the provisions as described in this
Paragraph.
-1-
[*] Confidential Treatment Requested.
<PAGE>
C. Licensed Systems:
[*]
D. Development Environment - The Adobe Development Environment is the specific
computer environment in which Adobe has developed the Adobe Software and tested
the Licensed System and which is defined below:
(1) Hardware platform:
[*]
(2) Software platform:
Macintosh OS version 7.0, MPW version 3.2.
OEM may upgrade the Development Environment to the latest version of both
the Hardware platform and the Software platform supplied by Apple or a
supplier that provides a compatible computer system faster completion of
Milestone #(8) in Paragraph F of this Appendix, provided that the upgrade
-----------
Development Environmental described in this Paragraph D. In the event
-----------
that in compatibilities are introduced by hardware or software vendor(s),
OEM may notify Adobe of such incompatibilities. Adobe will assess these
incompatibilities and, if necessary, OEM will upgrade the Loaned Equipment
to the upgraded Development Environment. Adobe will communicate the results
of the assessment to the OEM. If agreed to by Adobe, upgrades, made at the
OEM's request, for incompatibilities introduced outside of the Development
Environment described in Paragraph D(1) and D(2), will be provided under
-----------------------
the terms of a Continuing Support Agreement or at Adobe's current
consulting rates and under applicable terms.
-2-
[*] Confidential Treatment Requested.
<PAGE>
E. Adobe Deliverables:
(1) Adobe Software: As described in Exhibit A ("Description of Adobe
-------------- ---------
Software") to the Agreement or as further described herein. Adobe Software will
be delivered on 3.5 inch Macintosh diskettes.
(2) Demonstration Program(s): The Demonstration Program(s) will be in "C"
------------------------
language source form and will provide OEM with an example of how to use the
Adobe Software described in Exhibit A ("Description of Adobe Software") to
---------
interpret PostScript language programs and produce faster output. The
Demonstration Program(s) will be delivered with the Adobe Software.
(3) Other Adobe-Supplied Software:
TBD
(4) Documentation: The documentation as described below will be delivered
-------------
both in hardcopy (1 copy) and in PostScript page description language format on
the software distribution medium (1 file per document).
a. Supplement to the PostScript Language Reference Manual
b. PostScript Language Addendum Template
c. CPSI Demonstration Product Guide
d. CPSI Product Developer's Guide
e. CPSI Read Me First!
All of the above specified Documentation is to be used internally solely
for the purposes of developing a Licensed System and is to be treated as
Confidential Information of Adobe and subject to Paragraph 2.1.6
---------------
("Nondisclosure") of the Agreement. The PostScript Language Addendum Template
supplied by Adobe hereunder is to be used by OEM solely as a guide for
customizing and creating the PostScript Language Addendum for this Licensed
System. The only Documentation which OEM is permitted to distribute to its End
User customers, is the PostScript Language Addendum with the content written by
OEM and approved by Adobe.
(5) Coded Font Programs: OEM shall bundle the Roman Initial Installation
-------------------
Coded Font Programs identified in Paragraph J below and the Roman Additional
-----------
Coded Font Programs identified in Paragraph K below with each Licensed System
-----------
(hereinafter "Roman Version"). OEM agrees that the [*] Coded Font Programs for
Japanese Typefaces identified in Paragraph L of this Appendix shall be bundled
-----------
with every Licensed System distributed for use in Japan (hereinafter "Japanese
Version"). OEM is not required to bundle the Coded Font Programs for Japanese
Typefaces with Licensed Systems distributed for use outside of Japan. However,
if OEM decides to distribute Licensed Systems with Coded Font Programs for
Japanese Typefaces for use outside of Japan, it shall
-3-
[*] Confidential Treatment Requested.
<PAGE>
bundle all of the Coded Font Programs for Japanese Typecasts listed in
Paragraph L of this Appendix with each such Licensed System.
- -----------
F. Development Schedule and Testing Expectations:
<TABLE>
<CAPTION>
Milestone Description: *Schedule
<S> <C>
#(1) [*]
#(2) [*]
#(3) [*]
#(4) [*]
#(5) [*]
#(6) [*]
#(7) [*]
#(8) [*]
#(9) [*]
[*] Confidential Treatment Requested.
</TABLE>
-4-
<PAGE>
[*]
G. Loaned Equipment:
Adobe requires two (2) complete Licensed Systems as described in Paragraph
---------
C of this Appendix. Additional Licensed Systems may be required to accelerate
- -
quality assurance testing. Only one (1) system is required through the warranty
period.
The Loaned Equipment is being supplied to Adobe for the purpose of testing
the CPSI Application Object for use with the Licensed System and for testing and
reference purposes when evaluating draft PPD Files and PostScript Language
Addendum. Following Adobe testing and acceptance of the CPSI Application Object,
and for as long as Adobe is providing testing, warranty or Continuing Support
services, at Adobe's request OEM will replace the hardware and software
comprising the Loaned Equipment with the most recent version thereof.
Terms and conditions related to the obligations of the parties concerning
OEM-Loaned Equipment are set forth in Paragraph 3.4.1 ("OEM-Loaned Equipment")
---------------
of the Agreement.
H. Software License Fee:
[*]
I. Applicable Royalties:
(1) Royalties for Worldwide Distribution of Licensed Systems:
--------------------------------------------------------
(a) Basis for Payments Hereunder. All royalties due to Adobe by OEM shall
----------------------------
be paid in U.S. dollars regardless of the location of the transaction or the
type of currency used to consummate the transaction.
All List Prices, as described below, shall mean OEM's published List Price,
established in good faith, for quantity one (1) of the fully functioning
Licensed System described hereunder as distributed to End Users in both Roman
and Japanese Versions. Such calculations shall be exclusive of amounts received
for taxes, interest, non-warranty maintenance and installation charges, finance
charges, insurance, shipping and handling.
-5-
[*] Confidential Treatment Requested.
<PAGE>
(i) U.S. List Price. The U.S. List Price shall mean OEM's published
---------------
list price to End Users in quantity one (1) for a fully
functioning Licensed System as described in Paragraph C, for
-----------
distribution in the United States. OEM shall pay the per copy
royalty based upon the royalty schedule set forth herein in
Paragraph I(1)(b)(i) below using the U.S. List Price for a fully
--------------------
functioning Licensed System to calculate the per copy royalty.
The Licensed System U.S. List Price shall apply for the purpose
of royalty calculations hereunder for distribution of all Roman
Versions of the Licensed System throughout the world.
(ii) Japanese List Price. The Japanese List Price shall mean OEM's
-------------------
published list price in Japanese yen for quantity one (1) for a
fully functioning Licensed System as described in Paragraph C for
-----------
distribution in Japan. OEM shall pay the per copy royalty based
upon the royalty schedule set forth herein in Paragraph
---------
I(1)(b)(ii) below by converting the Japanese List Price in yen to
-----------
U.S. Dollars for a fully functioning Licensed System to calculate
the per copy royalty. The Japanese List Price shall be converted
into U.S. Dollars at a rate equal to the average of the exchange
rates quoted in the Wall Street Journal on the first and last
days of the relevant quarterly accounting period defined in
Paragraph 7.5 ("Payment of Royalties") of the Agreement and then
-------------
used to calculate the royalty due hereunder.
(b) [*]
(i) Roman Versions. For the Roman Versions of the Licensed System,
--------------
OEM shall pay Adobe a royalty equal to [*] of the U.S. List Price for each
Licensed System which is distributed or used internally by OEM or its
Subsidiaries.
(ii) Japanese Versions. For the Japanese Versions of the Licensed
-----------------
System, OEM shall pay Adobe a royalty equal to [*] of the Japanese List Price
for each Licensed System which is distributed or used internally by OEM or its
Subsidiaries.
(2) Coded Font Program Royalties. Both the Roman and Japanese Versions of the
----------------------------
Licensed System contain seventeen (17) royalty free Roman Initial
Installation Coded Font Programs as defined in Paragraph J of this Appendix
-----------
-6-
[*] Confidential Treatment Requested.
<PAGE>
No. 1 [*].
(a) Royalties for Roman Additional Coded Font Programs. OEM shall pay the
--------------------------------------------------
following royalty per Typeface for each copy of the Roman Additional coded Font
Programs specified in Paragraph K of this Appendix No. 1 which are distributed
-----------
or used internally by OEM and bundled as part of a Licensed System:
[*]
(b) Royalties for Coded Font Programs for Japanese Typefaces: The
--------------------------------------------------------
royalties for the Coded Font Programs for Japanese Typefaces, described in
Paragraph L of this Appendix No. 1 and bundled as part of the Licensed System,
- -----------
shall be [*].
J. Roman Initial Installation Coded Font Programs:
Adobe will provide the graphic characters specified in ISO 8859-1: 1987,
Latin alphabet No. 1, or symbol characters where appropriate, for the following
Roman Initial Installation Coded Font Programs:
<TABLE>
<CAPTION>
Identifying Trademark Typeface Trademark Owner
- ---------------------- ------- ---------------
<S> <C> <C>
Helvetica Linotype-Hell AG and/or its subsidiaries
Helvetica Bold Linotype-Hell AG and/or its subsidiaries
Helvetica Oblique Linotype-Hell AG and/or its subsidiaries
Helvetica Bold Oblique Linotype-Hell AG and/or its subsidiaries
Times Roman Linotype-Hell AG and/or its subsidiaries
Times Bold Linotype-Hell AG and/or its subsidiaries
Times Italic Linotype-Hell AG and/or its subsidiaries
Times Bold Italic Linotype-Hell AG and/or its subsidiaries
Symbol Public Domain
Courier Public Domain
Courier Bold Public Domain
Courier Oblique Public Domain
Courier Bold Oblique Public Domain
Helvetica Narrow Linotype-Hell AG and/or its subsidiaries
Helvetica Narrow Bold Linotype-Hell AG and/or its subsidiaries
Helvetica Narrow Oblique Linotype-Hell AG and/or its subsidiaries
Helvetica Narrow Bold Oblique Linotype-Hell AG and/or its subsidiaries
</TABLE>
-7-
[*] Confidential Treatment Requested.
<PAGE>
K. Roman Additional Coded Font Programs:
Upon written notification by OEM, Adobe will provide the graphic characters
specified in ISO 8859-1: 1987, Latin alphabet No. 1, or symbol characters
where appropriate, for the following Roman Additional Coded Font Programs:
<TABLE>
<CAPTION>
Identifying Trademark Typeface Trademark Owner
- ------------------------- ------------- ----------------------------------------
<S> <C> <C>
Palatino Roman Linotype-Hell AG and/or its subsidiaries
Palatino Italic Linotype-Hell AG and/or its subsidiaries
Palatino Bold Linotype-Hell AG and/or its subsidiaries
Palatino Bold Italic Linotype-Hell AG and/or its subsidiaries
ITC Avant Garde Gothic Book International Typeface Corporation
ITC Avant Garde Gothic Book Oblique International Typeface Corporation
ITC Avant Garde Gothic Demi International Typeface Corporation
ITC Avant Garde Gothic Demi Oblique International Typeface Corporation
ITC Bookman Light International Typeface Corporation
ITC Bookman Light Italic International Typeface Corporation
ITC Bookman Demi International Typeface Corporation
ITC Bookman Demi Italic International Typeface Corporation
ITC Zapf Dingbats International Typeface Corporation
ITC Zapf Chancery Medium Italic International Typeface Corporation
New Century Schoolbook Roman Public Domain
New Century Schoolbook Italic Public Domain
New Century Schoolbook Bold Public Domain
New Century Schoolbook Bold Italic Public Domain
</TABLE>
L. Coded Font Programs for Japanese Typefaces:
Adobe will provide the Adobe Standard Japanese Character set, which includes
all of the characters in Adobe's Kanji Glyph Collections and Glyph Sets
--------------------------------------
Technical Note #5031 dated November 12, 1990, with the exception of generic
--------------------
characters listed therein, for the following Coded Font Programs for
Japanese Typefaces:
<TABLE>
<CAPTION>
Identifying Trademark Trademark Owner
--------------------- ---------------
<S> <C>
Ryumin Light KL Morisawa & Company Ltd.
Gothic Medium BBB Morisawa & Company Ltd.
</TABLE>
Such Coded Font Programs for Japanese Types will be distributed on mutually
agreeable distribution media and will be encrypted and copy-protected against
unauthorized duplication in a manner to be specified by Adobe. Special
character set encodings are not provided.
M. Protection Mechanisms:
(1) Adobe and OEM shall mutually agree on an execution control mechanism
which OEM shall utilize as a copy protection device in each Licensed
System distributed under this Appendix.
(2) Adobe and OEM shall mutually agree upon a secure production method for
the Japanese font copy-protected keys.
-8-
<PAGE>
N. Designated Representatives:
(3) Technically qualified OEM representative to respond to information
requested by Adobe:
Jim Pendergast
SuperMAC Technology Phone # (408) 254-2202
485 Potrero Ave. Fax # (408) 735-7250
Sunnyvale, CA 94086
(4) Technically qualified Adobe representative to respond to information
requested by OEM:
Ivor Durham
Adobe Systems Incorporated Phone # (415) 962-2183
1585 Charleston Road Fax # (415) 961-3769
Mountain View, CA 94039-7900
(5) Adobe Contract Representative:
Ron Richter
Adobe Systems Incorporated Phone # (415) 962-6650
1585 Charlston Road Fax # (415) 965-7430
Mountain View, CA 94039-7900
(6) OEM Contact Representative:
Ron Moore
SuperMAC Technology Phone # (408) 254-2202
485 Potrero Ave. Fax # (408) 735-7250
Sunnyvale, CA 94086
IN WITNESS WHEREOF, each of Adobe and OEM has executed this Appendix No. 1
by its duly authorized officer.
ADOBE SYSTEMS INCORPORATED SUPERMAC TECHNOLOGY
By: /s/ Steve MacDonald By: /s/ Louis J. Doctor
-------------------------------- -----------------------------------
Name: Steve MacDonald Name: Louis J. Doctor
----------------------------- ---------------------------------
Title: V.P. Sys. Products Div. Title: V.P. Business Dev't
----------------------------- ---------------------------------
Date: Sept. 18, 1992 Date: Sept. 17, 1992
------------------------------ ----------------------------------
-9-
<PAGE>
Schedule 1 to Appendix No. 1
Specifications for the Configurable Postscript Interpreter
-10-
<PAGE>
APPENDIX NO. 3
EFFECTIVE AS OF March 21 1994
-------------------------
TO THE
CONFIGURABLE POSTSCRIPT(TM) INTERPRETER
OEM LICENSE AGREEMENT
BETWEEN
ADOBE SYSTEMS INCORPORATED
AND
SUPERMAC TECHNOLOGY INCORPORATED
Name of CPSI Application: Power PC Level 2 Adobe Software RIP
This Appendix sets forth additional and different terms and conditions
particular to the Licensed System described below and shall be incorporated by
reference into the Configurable PostScript Interpreter OEM License Agreement
("Agreement") between SuperMac Technology Incorporated ("OEM") and Adobe Systems
Incorporated ("Adobe") effective as of September 18, 1992 and as amended by
Amendment No. 1 effective July 28, 1993. Such different or additional terms are
applicable only to the Licensed System described below and in no way alter the
terms and conditions applicable to other Licensed Systems incorporated into the
Agreement by addition of an appendix.
All the terms used in this Appendix shall retain the same meaning as
defined in the Agreement and such definitions are incorporated herein by
reference.
A. Description of CPSI Application:
SuperMac Color Printer Software RIP running on an Apple Power Macintosh
computer.
B. Description of Computer System:
[*]
-1-
[*] Confidential Treatment Requested
<PAGE>
(2) One Designated Output Device from the following set:
a. ProofPositive full page color printer, 300 dpi, dye-
sublimation
b. ProofPositive two-page color printer, 300 dpi, dye sublimation
c. Fuji Xerox A Color copier, 400 dpi, laser
d. Xerox MajestiK color copier, 400 dpi, laser
OEM may use the CPSI Application to generate output from devices other than
those listed in this paragraph only within OEM's internal development group and
only for testing purposes within that group. New devices must be added to this
Appendix by an addendum before OEM may install such devices for use with the
CPSI Application outside the development group. If OEM wishes to add any other
device, it must [*] OEM shall authorize use of the CPSI Application to generate
output only on devices that have been approved by Adobe in accordance with the
provisions as described in this Paragraph.
OEM may upgrade the Computer System to the latest version of both the hardware
platform and the software platform supplied by a manufacturer or a supplier that
provides a compatible computer system after completion of Milestone #(13) in
Paragraph F of this Appendix, provided that the upgraded Computer System is
- -----------
object code compatible with the original Computer System described in this
Paragraph B. In the event that incompatibilities are introduced by hardware or
- -----------
software vendor(s), OEM may notify Adobe of such incompatibilities. Adobe will
assess these incompatibilities and, if necessary, OEM will upgrade the Loaned
Equipment to the upgraded Computer System. Adobe will communicate the results
of this assessment to the OEM. If agreed to by Adobe, upgrades to the Adobe
Software made by Adobe at OEM's request for incompatibilities introduced outside
of the Computer System described in Paragraph B, will be provided under the
-----------
terms of a Continuing Support Agreement or at Adobe's current consulting rates
and under applicable terms. OEM may not distribute an upgraded Computer System
that is not object code compatible with the original Computer System without
first submitting such upgrade to testing and acceptance in accordance with
Paragraph 3.8 ("Testing") of the Agreement.
- -------------
C. Licensed System:
[*]
-2-
[*] Confidential Treatment Requested.
<PAGE>
D. The Adobe Development environment is the specific computer environment in
which Adobe has developed and tested the Adobe Software and which is
defined below:
a. Hardware platform:
Same as described in Paragraph B(1).
--------------
b. Software platform:
Same as described in Paragraph B(1).
--------------
E. Adobe Deliverables:
(1) Adobe Software: As described in Exhibit A ("Description of Adobe
-------------- ---------
Software") to the Agreement and in the PostScript Language Reference
Manual (Second Edition). See also Exhibit G ("Configurable PostScript
---------
Interpreter Functional Specification") of the Agreement. Adobe
Software will be on Macintosh diskettes.
(2) Demonstration Program(s): The Demonstration Program(s) will be in "C"
------------------------
language source for-in and will provide OEM with an example of how to
use the Adobe Software described in Exhibit A ("Description of Adobe
---------
Software) of the Agreement to interpret PostScript language programs
and produce raster output. See also Exhibit G ("Configurable
---------
PostScript Interpreter Functional Specification") of the Agreement.
The Demonstration Program(s) will be delivered with the Adobe
Software.
(3) Other Adobe-Supplied Software: Aftermarket font conversion and
-----------------------------
installation utilities software for the Roman Initial Installation
Coded Font Programs listed in Paragraph J, to be bundled with and
-----------
used solely with a Licensed System.
(4) Documentation: The Documentation as described below will be
-------------
delivered in hard copy (1 copy).
a. CPSI Read Me First!
-3-
[*] Confidential Treatment Requested.
<PAGE>
b. CPSI Developer's Guide Companion (includes Functional
Specification)
c. CPSI Demonstration Software Guide
d. Supplement to the PostScript Language Reference Manual
e. PostScript Language Addendum Template
All of the above specified Documentation is to be used internally
solely for the purposes of developing a Licensed System and is to be
treated as confidential information of Adobe and subject to Paragraph
---------
2.1.6 ("Nondisclosure") of the Agreement. The PostScript Language
-----
Addendum Template supplied by Adobe hereunder is to be used by OEM
solely as a guide for customizing and creating the PostScript
Language Addendum for this Licensed System. The only Documentation
which OEM is permitted to distribute to its End User customers is the
PostScript Language Addendum with the content written by OEM and
approved by Adobe.
(5) Coded Font Programs: The Roman Initial Installation Coded Font
-------------------
Programs listed in Paragraph J will be delivered on the Adobe
-----------
Software distribution medium. The Coded Font Programs for Japanese
Typefaces listed in Paragraph K will be delivered on mutually
-----------
agreeable distribution media per Paragraph K.
-----------
(6) [*]
F. Development Schedule and Testing Expectations:
<TABLE>
<CAPTION>
MILESTONE DESCRIPTION *SCHEDULE:
<S> <C>
#(1) [*]
#(2) [*]
</TABLE>
-4-
[*] Confidential Treatment Requested.
<PAGE>
<TABLE>
<CAPTION>
MILESTONE DESCRIPTION *SCHEDULE
--------------------- ---------
<S> <C>
#(3) [*]
#(4) [*]
#(5) [*]
#(6) [*]
#(7) [*]
#(8) [*]
</TABLE>
-5-
[*] Confidential Treatment Requested.
<PAGE>
<TABLE>
<CAPTION>
MILESTONE DESCRIPTION SCHEDULE
--------------------- --------
<S> <C>
#(9)
#(10)
[*]
#(11)
#(12)
#(13)
</TABLE>
[*]
-6-
[*] Confidential Treatment Requested.
<PAGE>
G. OEM Loaned Equipment:
[*]
H. [*]
I. Applicable Royalties:
(1) Royalties for Worldwide Distribution of Licensed Systems:
--------------------------------------------------------
a. Basis for Payments Hereunder. All royalties due to Adobe by
----------------------------
OEM shall be paid in U.S. Dollars regardless of the location
of the transaction or the type of currency used to consummate
the transaction .
b. Licensed Use Royalty. The Licensed Use royalty for CPSI
--------------------
Application and for the Coded font Programs described herein
shall apply to all Licensed Systems and Coded Font Programs
used internally by OEM or its Subsidiaries and to all
Licensed Systems and Coded Font Programs sold, leased or
otherwise disposed of by OEM or its Subsidiaries directly or
indirectly to End Users. royalties are calculated on a per
Licensed Use basis and OEM shall ensure that it accounts for
and pays royalties for each Licensed Use of the CPSI
Application Object and Coded Font Programs.
c. List Prices. All List Prices, as described below, shall mean
-----------
OEM's published List Price, established in good faith, for
quantity one (1) of the fully functioning Licensed System
described hereunder as distributed to End Users in both Roman
and Japanese Versions. Such calculations shall be exclusive
of amounts received for taxes, interest, non-warranty
maintenance and installation charges, insurance, shipping and
handling costs.
(i) U.S. List Price. The U.S. List Price shall mean OEM's
---------------
published List Price in U.S. Dollars to End Users for
quantity one (1) of a Licensed System with Minimum
Configuration as described in Paragraph C above,
-----------
for distribution in the United States. The U.S. List
Price of the Licensed System shall apply for the
purpose of royalty calculations hereunder for each
Licensed Use of a Roman Version (as described in
Paragraph I(2)a below) of the
---------------
Licensed
-7-
[*] Confidential Treatment Requested.
<PAGE>
System distributed for use throughout the world excluding Japan where
the distribution of Licensed Systems is limited to Japanese Versions.
(ii) Japanese List Price. The Japanese List Price shall
-------------------
mean OEM's published List Price in Japanese yen to End Users for quantity one
(1) of a Japanese Version (with two (2) or five (5) Japanese Typefaces as
described in Paragraph I(2)b below) of a Licensed System with Minimum
---------------
Configuration as described in Paragraph C above, for distribution in Japan. The
-----------
Japanese List Price shall apply for the purpose of royalty calculations
hereunder for each Licensed Use of a Japanese Version of the Licensed System
distributed for use throughout the world. The Japanese List Price shall be
converted into U.S. Dollars at a rate equal to the average of the exchange rates
quoted in the Wall Street Journal at the end of the first and last days of the
relevant quarterly accounting period defined in Paragraph 7.5 ("Payment of
-------------
Royalties") of the Agreement. OEM shall use the converted Japanese List Price to
calculate the royalty for CPSI Application hereunder.
(2) Licensed Use Loyalties for CPSI Application:
-------------------------------------------
a. Roman Versions. OEM shall bundle the Roman Initial Installation
--------------
Coded Font Programs identified in Paragraph J with each Licensed System
-----------
distributed hereunder (a "Roman Version"). OEM may also distribute a Roman
Version bundled with either an additional twenty-two (22) Roman Additional Coded
Font Programs, as identified in Group I of Paragraph K(1) below or with all of
--------------
the Roman Additional Coded Font Programs identified in Group I and the
additional Roman Additional Coded Font Programs identified in Group 2 of
Paragraph K(1) below. If OEM elects to distribute the Roman Additional Coded
- --------------
Font Programs identified in Group 2, OEM must also bundle the Roman Additional
Coded Font Programs identified in Group 1.
For each Roman Version of the Licensed System which is distributed or used
internally (beyond the number of Licensed Uses provided royalty-free for
Internal Use under Paragraph I(6) below) by OEM or its Subsidiaries hereunder,
--------------
OEM shall pay Adobe a per Licensed Use royalty based on the U.S. List Price of a
Licensed System with Minimum Configuration using the following method of royalty
calculation:
[*]
b. Japanese Versions. OEM agrees that with each Licensed System
-----------------
distributed for use in Japan (a "Japanese Version"), it shall bundle the same
Roman Coded Font Programs as specified in Paragraph I(2)a above for Roman
---------------
Versions. Additionally, OEM shall bundle the [*] coded Font Programs
for Japanese Typefaces identified in Paragraph K(2)(i), or [*]
-----------------
-8-
[*] Confidential Treatment Requsted.
<PAGE>
Coded Font Programs for Japanese Typefaces identified in Paragraph K(2)(ii),
------------------
with every Licensed System distributed for use in Japan.
OEM is not required to bundle the Coded Font Programs for Japanese Typefaces
with Licensed Systems distributed for use outside of Japan. However, if OEM
decides to distribute Licensed Systems with Coded Font Programs for Japanese
Typefaces for use outside of Japan, it shall bundle the Coded Font Programs for
Japanese Typefaces in accordance with the above paragraph.
For each Japanese Version of the Licensed System which is distributed or used
internally
[*]
(3) Software Upgrade Royalties:
---------------------------
"Software Upgrades" means the installation of both the CPSI Application
Object and Coded Font Programs in a Licensed System already distributed under
license in place of CPSI Application Object and Coded Font Programs previously
installed in such Licensed System for the purpose of updating, enhancing or
extending a Licensed System. To qualify for Software Upgrade pricing, OEM must
either (i) promptly destroy the media containing the prior version of the CPSI
Application Object and Coded Font Programs, or (ii) return the media containing
the CPSI Application Object and Coded Font Programs to the factory where they
were manufactured, and immediately accrue a new royalty when such CPSI
Application and Coded Font Programs are shipped as part of a new s obligated to
account for any of the replaced CPSI Application Object and Coded Font Programs
which are not destroyed.
OEM shall keep accurate records of the number of Software Upgrades which it
distributes to its customers and the disposition of the corresponding CPSI
Application Object and Coded Font Programs replaced by the Software Upgrades.
OEM shall submit reports containing such Software Upgrade information in
accordance with its reporting requirements pursuant to Paragraph 7.5 ("Payment
-------------
of Royalties") of the Agreement. In addition, upon request from Adobe, OEM
shall certify to Adobe in writing signed by its authorized representative, that
it has fully complied with the requirement contained in this Paragraph I(3).
--------------
[*]
-9-
[*] Confidential Treatment Requested.
<PAGE>
[*]
The per copy royalty for each Coded Font Program not previously included in the
unit being upgraded shall be determined in accordance with Paragraph I(5) below
--------------
for each Roman and Japanese Typeface which is part of the Software Upgrade.
(4) Hardware Upgrades for Distribution Worldwide:
---------------------------------------------
[*]
OEM shall pay a Hardware Upgrade royalty based on the applicable U.S. or
Japanese List Price to End Users for the Hardware Upgrade equal to [*] of the
applicable End User List Price.
(5) Licensed Use Royalty for Coded Font Programs:
---------------------------------------------
a. Licensed Use Royalties for Roman Initial Installation Coded Font
----------------------------------------------------------------
Programs. The seventeen (17) Roman Initial Installation Coded Font Programs
- --------
specified in Paragraph J of this Appendix No. 3 and bundled with a Licensed
-----------
System [*].
b. Licensed Use Royalties for Roman Additional Coded Font Programs. OEM
----------------------------------------------------------------
shall pay the following royalty per Typeface or sets, as applicable, for each
Licensed Use of the Roman Additional Coded Font Programs specified in Paragraph
---------
K of this Appendix No. 3 which are distributed or used internally by OEM or its
- -
subsidiaries and bundled as part of a Licensed System:
[*]
-10-
[*] Confidential Treatment Requested.
<PAGE>
[*]
c. Licensed Use Royalties for Coded Font Programs for Japanese
-----------------------------------------------------------
Typefaces. For the Coded Font Programs for Japanese Typefaces described in
- ---------
Paragraph K(2) which are distributed or used internally by OEM or its
- --------------
Subsidiaries and bundled as part of a Licensed System, OEM shall pay
Adobe a per Typeface royalty for each Licensed Use of the Coded Font programs
for Japanese Typefaces as follows:
[*]
-11-
[*] Confidential Treatment Requested.
<PAGE>
J. Roman Initial Installation Coded Font Program:
Adobe will provide the graphic characters specified in ISO 8859-1: 1987,
Latin alphabet No. 1 and symbol characters as applicable, for the following
Roman Initial Installation Coded Font Programs:
<TABLE>
<CAPTION>
IDENTIFYING TRADEMARK TYPEFACE TRADEMARK OWNER
----------------------- ------------------------------ ---------------------------------------------
<S> <C> <C>
Helvetica Linotype-Hell AG and/or its subsidiaries
Helvetica Bold Linotype-Hell AG and/or its subsidiaries
Helvetica Oblique Linotype-Hell AG and/or its subsidiaries
Helvetica Bold Oblique Linotype-Hell AG and/or its subsidiaries
Times Roman Linotype-Hell AG and/or its subsidiaries
</TABLE>
<TABLE>
<CAPTION>
IDENTIFYING TRADEMARK TYPEFACE TRADEMARK OWNER
----------------------- ----------------------- ---------------------------------------------
<S> <C> <C>
Times Bold Linotype-Hell AG and/or its subsidiaries
Times Italic Linotype-Hell AG and/or its subsidiaries
Times Bold Italic Linotype-Hell AG and/or its subsidiaries
Symbol (Public Domain)
Courier (Public Domain)
Courier Bold (Public Domain)
Courier Oblique (Public Domain)
Courier Bold Oblique (Public Domain)
Helvetica Narrow Linotype-Hell AG and/or its subsidiaries
Helvetica Narrow Bold Linotype-Hell AG and/or its subsidiaries
Helvetica Narrow Oblique Linotype-Hell AG and/or its subsidiaries
Helvetic Narrow Bold Oblique Linotype-Hell AG and/or its subsidiaries
</TABLE>
K. Additional Coded Font Programs:
(1) Roman Additional Coded Font Programs:
Upon written notification by OEM, Adobe will provide the graphic.
characters specified in ISO 8859-1: 1987, Latin alphabet No. 1 and
symbol characters as applicable, for the Roman Additional Coded Font
Programs listed in Group 1 below. Upon written notification by OEM,
Adobe will provide the graphic characters specified in LSO 8859-1:
1987, Latin alphabet No. 1 and symbol characters, as applicable, for
the Roman Additional Coded Font Programs listed in. Group 2 below.
[*]
Group 1:
- --------
<TABLE>
<CAPTION>
IDENTIFYING TRADEMARK TYPEFACE TRADEMARK OWNER
------------------------ ----------------------- ---------------------------------------------
<S> <C> <C>
ITC Avant Garde Gothic Book International Typeface Corporation
ITC Avant Garde Gothic Book Oblique International Typeface Corporation
ITC Avant Garde Gothic Demi International Typeface Corporation
ITC Avant Garde Gothic Demi Oblique International Typeface Corporation
ITC Bookman Light International Typeface Corporation
ITC Bookman Light Italic International Typeface Corporation
</TABLE>
-12-
[*] Confidential Treatment Requested.
<PAGE>
<TABLE>
<S> <C> <C>
ITC Bookman Demi International Typeface Corporation
ITC Bookman Demi Italic International Typeface Corporation
New Century Schoolbook Roman Public Domain
New Century Schoolbook Bold Public Domain
New Century Schoolbook Italic Public Domain
New Century Schoolbook Bold Italic Public Domain
ITC Zapf Chancery Medium Italic International Typeface Corporation
ITC Zapf Dingbats International Typeface Corporation
Palatino Roman Linotype-Hell AG and/or its subsidiaries
Palatino Bold Linotype-Hell AG and/or its subsidiaries
Palatino Italic Linotype-Hell AG and/or its subsidiaries
Palatino Bold Italic Linotype-Hell AG and/or its subsidiaries
Helvetica Condensed Linotype-Hell AG and/or its subsidiaries
Helvetica Condensed Bold Linotype-Hell AG and/or its subsidiaries
Helvetica Condensed Oblique Linotype-Hell AG and/or its subsidiaries
Helvetica Condensed Bold Oblique Linotype-Hell AG and/or its subsidiaries
</TABLE>
Group 2:
- --------
<TABLE>
<CAPTION>
IDENTIFYING TRADEMARK TYPEFACE TRADEMARK OWNER
------------------------ -------------------------- ----------------------------------------------
<S> <C> <C>
Adobe Caslon(TM) Regular Adobe Systems Incorporated
Adobe Caslon Italic Adobe Systems Incorporated
Adobe Caslon Semibold Adobe Systems Incorporated
Adobe Caslon Semibold Italic Adobe Systems Incorporated
Adobe Garamond(TM) Regular Adobe Systems Incorporated
Adobe Garamond Italic Adobe Systems Incorporated
Adobe Garamond Bold Adobe Systems Incorporated
Adobe Garamond Bold Italic Adobe Systems Incorporated
Barmeno(TM) Regular H. Berthold AG
Barmeno Medium H. Berthold AG
Barmeno Bold H. Berthold AG
Barmeno Extra Bold H. Berthold AG
Lithos(TM) Regular Adobe Systems Incorporated
Lithos Black Adobe Systems Incorporated
Trajan Bold Adobe Systems Incorporated
Adobe Wood Type(TM)2 Ornaments Adobe Systems Incorporated
Blackoak(TM) Regular Adobe Systems Incorporated
Carta(TM) Map Symbols Adobe Systems Incorporated
Tekton(TM) Regular Adobe Systems Incorporated
Tekton Bold Adobe Systems Incorporated
Park Avenue(R) Regular Kingsley/ATF Type Corporation
Poetica 2 Supplement Ornaments Adobe Systems Incorporated
Kaufmann(R) Regular Kingsley/ATF Type Corporation
Americana(R) Regular Kingsley/ATF Type Corporation
Americana Extra Bold Kingsley/ATF Type Corporation
Parisian Regular Kingsley/ATF Type Corporation
Formata(R) Regular H. Berthold AG
Formata Medium H. Berthold AG
Formata Italic H. Berthold AG
Formata Medium Italic H. Berthold AG
</TABLE>
After receipt of written request from OEM, Adobe will provide the Macintosh
compatible Bitmap Fonts for the Roman Additional Coded Font Programs listed in
Group 1 and in Group 2 without additional charge. These Bitmap Fonts can only
be used in conjunction with a Licensed System.
-13-
<PAGE>
(2) Coded Font Programs for Japanese Typefaces:
Upon written notification by OEM, Adobe will provide the Adobe Standard
Japanese Character Set, which includes all of the characters, in Adobe's
Kanji Glyph Collection and Glyph Sets Technical Note #5031, dated November
----------------------------------------------------------
12, 1990, with the exception of generic characters listed therein, for the
following Coded Font Programs for Japanese Typefaces.
[*]
<TABLE>
<CAPTION>
IDENTIFYING TRADEMARK TRADEMARK OWNER
------------------------ ---------------------------------
<S> <C>
Ryumin Light KL Morisawa & Co., Ltd.
Gothic Medium BBB Morisawa & Co., Ltd.
Futo Min A101 Morisawa & Co., Ltd.
Futo Go B101 Morisawa & Co., Ltd.
June 101 Morisawa & Co., Ltd.
</TABLE>
Such Coded Font Programs for Japanese Typefaces will be distributed on
mutually agreeable distribution media and will be encrypted and copy
protected against unauthorized duplication in a manner to be specified by
Adobe. [*] Special character set encodings are not provided.
OEM may not distribute additional Coded Font Programs for Japanese
Typefaces in an unbundled form for the purpose of upgrading an existing
Licensed System from [*] for Japanese Typefaces. If OEM desires to offer to
customers additional Coded Font Programs for Japanese Typefaces, it may
license the additional [*] aftermarket fonts in retail product
version directly from Adobe or Morisawa to provide to OEM's End Users.
After receipt of written request from OEM, Adobe will provide the Macintosh
compatible Bitmap Fonts for Futo Min A101, Futo Go B101 and Jun 101 without
additional charge. These Bitmap Fonts can only be used in conjunction with
a Licensed System. Bitmap Fonts for Ryumin light KL and Gothic Medium BBB
will not be provided, since they are available to the End User bundled with
Apple's KanjiTalk(TM) system software.
L. Protection Mechanisms:
(1) Adobe and OEM shall mutually agree on a License Management Mechanism
which OEM shall utilize as a copy protection device in each
-14-
[*] Confidential Treatment Requested.
<PAGE>
Licensed System distributed under this appendix and as a way of
ensuring that use of the CPSI Application Object and Coded Font
Programs is limited to Licensed Uses.
(2) OEM shall implement the os_serialnumber ( ) library procedure to
guarantee that it returns a unique 32 bit identifier for each
Licensed System .
(3) Adobe and OEM shall mutually agree upon a secure production method
for the Japanese font copy-protection keys.
(4) All Coded Font Programs for Japanese Typefaces bundled with each
Licensed System shall be keyed to such Licensed System's unique 32
bit identifier.
M. Provisions for Raster File Output:
The SuperMac Power PC Level 2 Adobe Software RIP may be used to generate
raster files from PostScript files for use as a print preview or with a
photo retouch or paint software package of an End User's choice residing on
any workstation connected to the Licensed System.
The SuperMac Power PC Level 2 Adobe Software RIP may be used to generate
raster files in [*]. The raster file format shall be Unedited to the format
characteristics of the Designated Output Device or to 150 dpi or less for
output to a display. [*]
N. Adobe Product Certification and Shipment Standards:
The following Adobe standards shall apply for purposes of this Appendix No.
3:
[*]
-15-
[*] Confidential Treatment Requested.
<PAGE>
[*]
O. Designated Representatives
(1) Technically qualified OEM Representative to respond to information
requested by Adobe:
Richard Falk Phone (408) 541-5207
SuperMac Technology Incorporated FAX (408) 541-6150
215 Moffett Park Drive
Sunnyvale, CA 94089-1374
(2) Technically qualified Adobe representative to respond to information
requested by OEM:
Ivor Durham Phone (415) 962-2183
Adobe Systems Incorporated FAX (415) 961-4022
1585 Charleston Road
Mountain View, CA 94039-7900
(3) Adobe Contract Representative:
Jeffrey Eid Phone (415) 962-3962
Adobe Systems Incorporated FAX (415) 965-7430
1585 Charleston Road
Mountain View, CA 94039-7900
-16-
[*] Confidential Treatment Requested.
<PAGE>
(4) OEM Contract Representative:
Mark Housley Phone (408) 541-5215
SuperMac Technology Incorporated FAX (408) 541-6150
215 Moffett Park Drive
Sunnyvale, CA 94089-1374
IN WITNESS WHEREOF, OEM and Adobe have caused this Appendix No. 3 to be
executed by their duly authorized officers.
ADOBE: OEM:
ADOBE SYSTEMS INCORPORATED SUPERMAC TECHNOLOGY
INCORPORATED
By: /s/ M. Bruce Nakao By: /s/ Jay Torborg
--------------------------------- ---------------------------
Print Print
Name: M. Bruce Nakao Name: Jay Torborg
-------------------------------- --------------------------
Title: Sr. VP & CFO Treasurer & Title: VP Engineering
------------------------------- -------------------------
Assistant Secretary
-----------------------
Date: 3/21/1994 Date: 3/18/94
-------------------------------- --------------------------
-17-
<PAGE>
EXHIBIT 10.6
Xerox & SMT Hareware Purshase and Software Development/License Agreement
TABLE OF CONTENTS
<TABLE>
<S> <C>
I. Definitions
II. Products Development Work
III. Licensed Software Development
Work
IV. Purchase and Sale of Products and
License of Licensed Software
V. Documentation and Support
VI. Quality Assurance
VII. Term and Termination
VIII. Deliveries
IX. Product And Licensed Software
Changes
X. Agency Approval and Safety
XI. Consumables and Emergency
Maintenance Support
XII. Warranties
XIII. Training
XIV. [*]
XV. Confidential and Proprietary
Information
XVI. Limitation of Liability
XVII. Export Control
XVIII. Independent Product Development
XIX. Force Majeure
XX. Notices
XXI. Points of Contact
XXII. Headings
XXIII. Amendment
XXIV. Assignment
XXV. Product Recycling
XXVI. Severability
XXVII. Waiver
XXVIII. Survival
XXIX. Ethical Standards
XXX. Arbitration
XXXI. Nonpublicity
XXXII. Controlling Law
XXXIII. Controlling Language
XXXIV. Remedies Cumulative
XXXV. Integration
ATTACHMENT SCHEDULE
I. Specifications
II. EIQP - 1000
III. Pricing
IV. Development Work Schedule
V. Primary Point of Contact
X. Technical Support
</TABLE>
[*] CONFIDENTIAL TREATMENT REQUESTED
1
<PAGE>
Xerox & SMT Hardware Purchase and Software Development/License Agreement
HARDWARE PROCUREMENT AND SOFTWARE DEVELOPMENT AND LICENSE AGREEMENT
This Agreement is made and entered into between SuperMac Technology, Inc., a
corporation organized under the laws of the State of Delaware, with its
principal offices in Sunnyvale, CA. (hereinafter referred to as "Seller") and
Xerox Corporation, a corporation organized under the laws of the State of New
York, U.S.A., with an office in El Segundo, CA. (hereinafter referred to as
"Xerox" or "Buyer"), upon the terms and conditions set forth below.
1. DEFINITIONS
1.01 Accessories - "Accessories" shall mean an item of optional equipment
marketed by Seller and which can or is specifically designed to be used in
connection with Equipment and which enhances the features or functionality of
such Equipment, whether or not connected to Equipment by electrical, electronic,
or mechanical means.
1.02 Buyers - shall mean Xerox or Xerox Affiliated Companies, as the case may
------
be.
1.03 "Derivative Works" - shall mean any work based on, and derived from, the
----------------
original Licensed Software, which derivation was created or developed, at the
expense of, or on the initiative of, Xerox as-additionally detailed in 3.01. If,
however, title to any Derivative Work resides in Seller, any such Derivative
Work shall be automatically deemed as Licensed Software.
1.04 "Documentation" means all written text including but not limited to
-------------
manuals, brochures, specifications and software descriptions, in electronic,
printed and/or camera ready form, and related materials customarily needed for
use with Licensed Software.
1.05 Effective Date - shall mean the date on which this Agreement is fully
--------------
executed by the parties.
1.06 Equipment - shall mean Xerox Private Label versions of Seller's equipment
---------
and Accessories as set forth in Attachment 1 and modifications, enhancements and
improvements thereto which are made pursuant to Article VII herein.
1.07 "Licensed Software" - shall mean all software and Documentation created or
-------------------
developed, pursuant to this Agreement, from a certain computer program which
Seller has either created, or has the ownership of, Documentation, and related
written materials, ("Underlying Software") and conforming to the Specifications
set forth in Attachment hereof, and shall include all modifications,
improvements, enhancements, additions, Derivative Works, updates, releases and
versions thereof.
1.08 Private Label - shall mean Equipment, specified Accessories, supplies,
-------------
Spares, or Licensed Software with Xerox or Xerox Affiliated Companies'
trademarks and logos as identified in Attachment 1 or Xerox or Xerox Affiliated
Companies' or their respective customers' trademarks, tradedress, and logos
thereon.
1.09 Production Month - shall mean the calendar month in which production of
----------------
Products or Licensed Software is scheduled.
1.10 Products - shall mean Equipment, Accessories, and Supplies.
--------
1.11 Spares - shall mean spare parts for the Equipment or Accessories and
------
modifications, enhancements and improvements thereto which are made pursuant to
Article VII, herein.
1.12 Regulatory Agency - shall mean any regulatory agency or other body,
-----------------
governmental or private, including but not limited to agencies regulating
product safety, and or electromagnetic emissions, the approval of which is
required by the government prior to delivery or marketing of the Products or
Licensed Software in the United States, Puerto Rico, and the territories and
possessions of the United States, and any other country listed on Attachment I
hereto.
1.13 Systemic Defect - shall mean a defect of any type where the Products do
not conform with the Specifications set forth in Attachment I [*] which occurs
in identical or substantially similar form or from
[*] CONFIDENTIAL TREATMENT REQUESTED
2
<PAGE>
Xerox & SMT Hardware Purchase and Software Development/License Agreement
a substantially similar cause where such failures are reported in at least [*]
of the Current Field Population of Products within any single [*] period of time
after receipt of delivery of Products. The Current Field Population shall be
calculated as the number of Products of the same or substantially same design
sold by Seller to Buyer within the preceding [*] period. Any failure of any
Product sold by Seller more than [*] prior to failure [*] shall not be deemed a
Systematic Defect failure, nor counted as a failure for the purposes of
calculating the threshold under this section.
1.14 Xerox Affiliated Companies - shall mean Rank Xerox Limited, Xerox Canada,
--------------------------
Inc., any entity which is owned or controlled jointly by Xerox Corporation and
the Rank Organization, PLC, and any entity which is owned or controlled directly
or indirectly, by any of the foregoing, but shall not include Xerox.
1.15 Xerox Unique Features - shall mean those Features of Products which are
---------------------
unique to Xerox, and which are designated as Xerox Unique Features in Attachment
I. Such Xerox Unique Features shall only be incorporated in Products as
designated by Xerox.
1.16 Specifications - shall mean the engineering, operational and/or functional
--------------
description of the Products as set forth in the SuperMac Functional
Specification, Revision 0.5, dated September 13, 1993 which may change from time
to time and is referenced in this Agreement as Attachment I hereto, which is
expressly incorporated herein by this reference.
II. PRODUCTS DEVELOPMENT WORK
2.01 a) In the event Seller, in order to deliver Products which meet the
Specifications set forth in Attachment I hereto, has agreed to develop new
products or modify existing products other than rendering current Products into
Private Label Products ("Development Work"), then this Article II shall apply.
b) Seller shall perform the Development Work in conformity to the
Development Work Schedule set forth in Attachment VI. Seller shall provide Xerox
with progress reports, in accordance with the schedule set forth in Attachment
IV. Each such report shall reflect/indicate:
i. Status of progress to current Program Schedule milestone;
ii. Short description of problems in meeting such milestone;
iii. Proposed recovery method to meet next milestone if needed;
iv. Probability of meeting next milestone;
v. Any other information related to the Development Work reasonably
requested by Xerox.
c) The parties agree to conduct regular program reviews as shown on the
agreed Program Schedule set forth on Attachment IV to this Agreement, to ensure
their mutual satisfaction with the performance of the Development Work under the
Agreement. Upon reasonable notice, the parties agree to meet at a mutually
agreeable time and location to discuss and inspect the status of the Development
Work.
d) At any time prior to acceptance by Xerox of the Products as set forth
in this Article, each party is entitled to request modifications in the form of
changes or additions to the Specifications as agreed and set forth in Attachment
I hereto. Such requests shall be submitted in writing. Upon receipt of the
other's written approval, both parties will proceed with the implementation of
the prescribed changes, and the Specifications and other Attachments to the
Agreement shall be modified accordingly to reflect such agreed upon changes.
e) Seller shall, in accordance with the Program Schedule set forth in
Attachment VI to this Agreement, develop the Products. In accordance with the
Program Schedule, Seller shall deliver to Xerox both prototype validation test
unit(s) ("PVT unit") and development validation test unit(s) ("DVT unit") for
testing and acceptance by Xerox, hereinafter collectively referred to as
"Deliverables." The PVT unit shall be a unit of the product sufficiently
developed to enable Xerox to ascertain if the Product will be capable of
[*] CONFIDENTIAL TREATMENT REQUESTED
3
<PAGE>
Xerox & SMT Hardware Purchase and Software Development/License Agreement
meeting the specifications set forth in Attachment I hereto, and the
manufacturing cost targets, although such PVT unit may not be fully functional
or manufactured with actual production tooling. The DVT unit shall be a
completed unit of the Product with all required functionality and performance
for final Product test purposes, manufactured with production ready tooling
using the actual production methods and equipment.
(f) (i) Xerox, with the assistance of the Seller if requested by Xerox,
will examine and test each Deliverable upon delivery to determine whether the
Deliverable conforms to the Specifications. Xerox shall, within the acceptance
period for each Deliverable set forth in Attachment IV; (i) accept the
Deliverable and so inform the Seller in writing; or (ii) reject the Deliverable
and provide Seller with a written statement to specify in detail the
Deliverable's non-conformity to applicable specification. Notwithstanding the
Project Schedule, Xerox shall not be obligated to pay for any Deliverable for
which Xerox has submitted to the Seller a statement of non-conformity to
applicable specifications. If Xerox does not provide such a statement of
non-conformity to applicable specifications within the said acceptance period,
the Deliverables will be deemed to have accepted by Xerox.
(f) (ii) Should any Deliverable fail to meet the Specifications after the
second redelivery of that Deliverable, then the parties shall promptly meet to
resolve the problem. In the event that the parties are unable to develop a plan
to resolve such failure of the Deliverable to conform to applicable
specifications or other problems, Xerox shall have the right to terminate this
Agreement as set forth in Article VII hereof, and such impasse shall be deemed
due cause for termination of this Agreement.
III. LICENSED SOFTWARE DEVELOPMENT WORK
3.01 Seller will develop the Licensed Software in accordance with the
Specification defined in Attachment I and will deliver the Licensed Software to
Xerox in accordance with Attachment IV.
3.02 Xerox reserves the right to make changes to the Licensed Software
Specifications at any time prior to delivery of the Licensed Software in
accordance with 3.01 and Seller agrees to make such changes. Xerox and Seller
agree to negotiate in good faith an equitable adjustment in time schedule and
fee, as necessary, for substantial changes to the specification and/or changes
which affect the dates for scheduled delivery.
3.03 After delivery as stated in 3.01 of the Licensed Software, Xerox will have
sixty (60) days to test the same and to notify Seller in writing of either its
Approval or reasons for nonconformance to the Specifications of Attachment I.
The Acceptance Criteria in Attachment VI shall serve as the primary part of the
criteria which Xerox will use in making its determination as to Approval.
3.04 Upon notification by Xerox in accordance with 3.03 that the Licensed
Software does not meet the Specifications of Attachment I and/or contains
significant program errors, or otherwise doesn't function properly, Seller will
correct the Licensed Software within a correction period of thirty (30) days
following receipt of written notice from Xerox, and Xerox will be relieved of
its sixty (60) day Approval obligation set forth in 3.03. If Seller subsequently
delivers corrected Licensed Software to Xerox within said thirty (30) day
correction period, Xerox will have an additional thirty (30) days from receipt
to reevaluate the corrected Licensed Software.
3.05 If Seller is unable to meet the Specifications to Attachment I and/or
eliminate significant program errors, product failure, or other problems in the
Licensed Software in the thirty (30) day correction period of 3.04, or within 60
days of the delivery milestone dates set forth in Attachment IV then as Xerox'
sole remedy and at its option Xerox may:
(a) extend the correction period by an amount of time as may be a
determined by Xerox; or
(b) Approve the Licensed Software; or
(c) reject the Licensed Software by notifying Seller of such in writing
and promptly return Licensed Software to Seller with all copies made;
or
(d) Elect to terminate the Agreement.
4
<PAGE>
Xerox & SMT Hardware Purchase and Software Development/License Agreement
IV. PURCHASE AND SALE OF PRODUCTS AND LICENSE OF LICENSED SOFTWARE
4.01 (a) During the term of this Agreement, Buyer may purchase from Seller,
and Seller shall sell to Buyer, Products for unrestricted resale, lease and
servicing by Buyer or Buyer's customers worldwide, directly or through third
parties.
(b) Seller grants Xerox Companies a non-exclusive licence to use any of
Seller's tradenames, trademarks or logos as supplied by Seller from time to time
on units of the Products in connection with the resale or sub-licensing of units
of the Products.
(c) Seller grants and conveys to Xerox and Xerox Affiliated Companies a
perpetual, nonexclusive, world-wide right and license to market, use, maintain,
display, lease, and sub-license the Licensed Software themselves, or through
authorized VARs, dealers or distributors, where and when, and under terms and
conditions as determined by Xerox and Xerox Affiliated Companies, in connection
with the marketing of the Products. Title to Licensed Software resides with
Seller. The license granted in this Agreement extends to and includes all
Releases of the Licensed Software and backward compatibility to the original
Release. These releases will include all error corrections. Seller will provide
Xerox written notification of pending new updates, releases and versions and
availability thereof, sufficiently in advance of publication on order for Xerox
to react in a timely manner.
(d) Seller may manufacture, use, sell, lease or otherwise market or
dispose of, or license any third party to manufacture, use, sell, lease, or
otherwise dispose of, any Products which do not contain any Xerox Unique
Features, Xerox patents, copyrights, trade secrets or intellectual property
rights (unless licensed by Xerox) or any Xerox or Xerox Affiliated Companies'
trademarks or logos. Provided, however, Seller may not grant to any third party
manufacturing rights for Products or Licensed Software in a manner that will
interfere with Xerox' rights under this Agreement.
4.02 Prices - (a) The prices for Products are set forth in Attachment III and
--------
are expressed in Buyer's currency. [*] If Xerox agrees to pay Seller a license
fee for Licensed Software, the fee will be defined in Attachment III hereto.
Prices for Products shall remain firm and unchanged during the first year of
this Agreement. However, Seller shall reduce applicable prices for Products and
Licensed Software to equitably reflect any reduction of Seller's costs of raw
materials, parts, direct labor or other appropriately allocated direct or
indirect costs related to the production or delivery of the Products or
Licensed Software. Thereafter, [*] the prices for Products not more than [*].
(b) Prices for Products and Licensed Software shall include the cost of
packaging and packing which conform to the requirements of this Agreement but
shall be exclusive of applicable taxes and duties and all similar governmental
levies.
(c) In the event Buyer wishes to purchase Products or Licensed Software
on a Private Label basis it shall so inform Seller and Seller and Buyer shall
negotiate the appropriate price for the purchase of Private Label Products or
the license of such Licensed Software.
(d) [*]
4.03 Payment - Provided Buyer has accepted Products or Licensed software
-------
developed for Buyer hereunder Products purchased or licensed hereunder shall be
paid for by bank transfer or written check within thirty (30) days following
[*] CONFIDENTIAL TREATMENT REQUESTED
5
<PAGE>
Xerox & SMT Hardware Purchase and Software Development/License Agreement
the receipt of Seller's invoice by Buyer and accompanying documented proof of
shipment. Seller agrees not to charge late payment fees for payments made by
Buyer within thirty (30) days of the payment due date.
4.04 [*]
4.05 Purchase Release Orders - All purchases of Products and licenses of
-----------------------
Licensed Software hereunder shall be made only upon the issuance of written
purchase release orders by Buyer. All purchase release orders for a particular
Production Month shall be sent by Buyer [*] before the Production Month for such
Products or Licensed Software. In placing orders for Spares, Buyer shall use
Seller's Spares parts number as well as Buyer's parts number in order to avoid
any possible delay in filling such orders.
4.06 Acknowledgment - Within [*] of receipt, Seller shall accept and
--------------
acknowledge in writing purchase release orders issued by Buyer hereunder. Any
purchase release order not acknowledged within [*] after receipt by Seller is
deemed to have been accepted. All purchases hereunder shall be governed solely
by the terms and conditions of this Agreement, notwithstanding any preprinted
terms and conditions contained on any purchase release orders issued by Buyer or
acknowledgments thereof issued by Seller.
4.07 Xerox Unique Tooling - Buyer Unique Tooling shall not be used by Seller for
--------------------
any purpose other than the manufacture of Products or Licensed Software under
this Agreement without the prior express written consent of the particular Buyer
which owns the Xerox Unique Tooling.
4.08 Unique Design Rights - All rights in and to Product designs that result
--------------------
from the use of Xerox Unique Tooling or Xerox owned patents, copyrights or other
intellectual property rights shall belong exclusively to the particular Buyer
which provided Seller with Xerox Unique Tooling. With respect to such Product
designs, Seller agrees to assist Buyer in applying for and obtaining any design
patents or other intellectual property rights upon request from Buyer.
4.9 New Models - If, during the term of this Agreement or any extension
----------
thereof, Seller decides to develop products similar to the Products or Licensed
Software that may be more efficient, contain additional features or
capabilities, and/or are less expensive, Seller shall promptly notify Xerox and
the parties shall discuss in good faith any unique Buyer requirements for such
planned future product. In the event Seller decides to market such future
product Seller shall make such products available to Buyer on terms comparable
to those contained herein except that the parties shall negotiate the price
therefor in good faith.
4.10 Kit Assembly - In certain instances Buyer may desire to market Products in
------------
countries that request local manufacturing content. In such cases Seller agrees
to meet with Xerox in a timely manner to discuss the local manufacturing content
requirement. Buyer and Seller will each have an obligation to negotiate in good
faith using reasonable efforts to define the contents and assembly instructions
for such Manufacturing Kits. Further, to the extent Seller has the right to do
so, and if desired by Buyer, Seller agrees to sell such Manufacturing Kits to
Buyer or a third party designated by Xerox under the terms and conditions of
this Agreement, excepting the warranty (section XII), indemnification (section
XIV) and systemic defect (section 1.13) provisions of this Agreement. In such
event the price of such kits shall not exceed [*] of the equivalent. Product
price to Buyer or the Product price less the labor savings, whichever is
greater.
[*] CONFIDENTIAL TREATMENT REQUESTED
6
<PAGE>
Xerox & SMT Hardware Purchase and Software Development/License Agreement
4.11 Discontinuance Or Change in Location Of Manufacture - During the term
---------------------------------------------------
hereof, Seller may not discontinue the manufacture of any Products or Licensed
Software without the express written permission of Xerox. Seller shall notify
Xerox prior to changing the location where Products or Licensed Software are
manufactured, and Xerox shall have the right to terminate this Agreement
immediately upon nature if such change in location is not satisfactory to Xerox.
4.12 Title And Risk Of Loss - Notwithstanding Products being delivered [*]
----------------------
title and risk of loss for all Products purchased by Buyer, and risk of loss for
Licensed Software licensed by Buyer, shall pass to Buyer from Seller [*].
4.13 Enhancements To Licensed Software - Seller in good faith shall use
---------------------------------
commercially reasonable efforts to provide enhancements to the Licensed Software
in accordance with the Software Support Plan in Attachment X.
4.14 [*]
V. DOCUMENTATION AND SUPPORT
5.01 Sales Documentation - Seller shall furnish to Buyer, on an ongoing basis
-------------------
during the term hereof, free of charge, such materials as Buyer may reasonably
request in electronic and camera ready form for use by Buyer to prepare
documentation, brochures and other product literature, including, but not
limited to, operators, maintenance and parts manuals, catalogs, specification
sheets, and other data necessary or appropriate for the sale of Products. Seller
grants to Buyer and its customers the royalty-fee right and license to
reproduce all or any part of such documentation. Buyer is further given the
right to modify any or all parts of the documentation to reflect changes made to
the Products or consistency in style with other documentation used by Buyer or
to satisfy legal or customer requirements.
5.02 Service Documentation - Seller shall provide to Buyer, at no cost, and in
---------------------
accordance with the schedules set forth in Attachment IV, all engineering
drawings, service, repair procedures, and documentation (by part number) which,
in Buyer's reasonable opinion, are necessary or appropriate to fulfill Buyer's
service and customer support obligations for the Products. Seller grants to
Buyer and its customers the royalty-free right and license to reproduce all or
any part of such documentation. Buyer is further given the right to modify any
or all parts of the documentation to reflect consistency in style with other
documentation used by Buyer or to satisfy legal or customer requirements.
5.03 Licensed Software Documentation And Other Information - Seller will
-----------------------------------------------------
provide to Xerox one (1) full, complete, and accurate set of Licensed Software
marketing information, technical specifications, and update descriptions so that
Xerox and Xerox Affiliated Companies can, on a periodic basis and as new changes
or additions occur, make copies thereof and distribute the same to its sales
force and customers. During the term of this Agreement, Xerox and Xerox
Affiliated Companies may also include Licensed Software product description and
information in any Xerox or Xerox Affiliated Companies literature. The
distribution of such literature by Xerox and Xerox Affiliated Companies will be
at their sole expense. Xerox and Xerox Affiliated Companies may, at their option
and expense, prepare their own promotional literature relating to Licensed
Software and distribute the same to its sales force and customers. Seller will
provide Xerox one (1) complete set of Documentation and grants to Xerox and
Xerox Companies the right to reproduce such Documentation for the purpose of
distribution to their customers on an as needed basis. Seller will also include
with each unit of Product shipped hereunder one (1) complete set of
Documentation. Under this Section, Seller shall be under no obligation to create
any specific marketing collateral for distribution but shall provide Buyer with
the information necessary to create such materials for Buyer's use.
[*] CONFIDENTIAL TREATMENT REQUESTED
7
<PAGE>
Xerox S SMT Hardware Purchase and Software Development/License Agreement
5.04 Technical Support - Seller shall provide technical support and maintenance
-----------------
for the Licensed Software to Xerox and Xerox Affiliated Companies in conformity
with Attachment X hereto.
5.05 (a) Escrow - Within thirty (30) days of the delivery of the Product and
------
Licensed Software, Seller shall place in escrow with Seller's escrow shall
place in escrow with Seller's escrow agent ("Escrow Agent"): (a) one (1)
complete copy of the source code and documentation for the Licensed
Software contained in the Products, together with copies of all design
specifications and other technical information; and (b) one (1) complete
copy of the hardware design specifications for the Products, together with
copies of selected drawings and other technical information (collectively
"Escrow Deposit"). Seller agrees to update and maintain the Escrow Deposit
held in safekeeping by the Escrow Agent to reflect all changes made to the
Products and/or the Licensed Software in the Products. Seller also agrees
to provide Buyer with the name of Seller's Escrow Agent and a copy of the
Escrow Agreement within one week of deposit of the source code and
documentation.
(b) During the term of this Agreement, the Escrow Agent shall be
instructed to provide Xerox with the Escrow Deposit only in the event
that: [*]. However, in the event that Seller notifies the Escrow Agent
that a dispute exists between Seller and Xerox with respect to the release
of the Escrow Deposit, then the Escrow Agent shall release the Escrow
Deposit to Xerox only if such dispute is submitted to arbitration Article
XXX and such arbitration is conclusively decided in Xerox' favor. If the
Escrow Deposit is released to Xerox, it shall be subject to the terms of
the license and confidentiality provisions of this Agreement, which
provisions shall survive any termination of this Agreement.
VI. QUALITY ASSURANCE
6.01 Quality Requirements - All Products and Licensed Software produced and
--------------------
delivered to Buyer shall fully comply with the specifications set forth in the
Attachments hereto and shall be one hundred percent (100%) free of material
defects. Reliability of Products and Licensed Software shall meet or exceed the
requirements of such specifications.
6.02 IS0 9000 Quality Systems Registration Requirements - Seller or Seller's
--------------------------------------------------
suppliers will have a quality system which is registered to ISO 9001, and or
9002 and 9003 and ISO 9000-3 (TC176 Approved equivalent) or is in the process of
obtaining such registration. Any costs associated with obtaining the initial
registration or maintenance thereof shall be the sole responsibility of Seller.
6.03 Product Quality Plan - Seller will develop, implement and provide to
--------------------
Xerox a Quality Plan for Products in accordance with the ISO-9000 end-term
quality provisions set forth in Attachment II, a copy of which Seller
acknowledges having received. Such Quality Plan shall define the controls and
operating systems required to assure that only defect free Products and Licensed
Software will be delivered to the Buyer. Xerox's Material Quality Assurance or
their authorized representatives shall source verify all deliveries until Seller
achieves Product certification. Existing Seller quality procedures which totally
comprehend any quality plan elements may be used to satisfy the plan and will
become the basic operating document for assuring compliance to Xerox's quality
requirements.
6.04 Acceptance Inspection - Buyer shall have the right to conduct, at its
---------------------
expense, at a location that the Buyer may reasonably select, an acceptance
inspection of the Products and Licensed Software to ensure compliance with the
specifications set forth in the Attachments to this Agreement. Buyer shall
notify Seller of the
8
<PAGE>
Xerox & SMT Hardware Purchase and Software Development/License Agreement
result of such inspection (acceptance or rejection) for each lot delivered
within thirty (30) days after receipt of such Products and Licensed Software.
Should Buyer fail to notify Seller within such thirty (30) day period, the
relevant Products and Licensed Software shall be deemed to have been accepted by
Buyer. Such acceptance shall not however be deemed a waiver of any warranties
applicable to such Products or Licensed Software. Quality and reliability
failure rates observed in excess of those specified in the Seller Quality Plan
may result in the return of the Product or Licensed Software or sorting at
Seller's expense.
6.05 Nonconforming Product or Licensed Software - Seller agrees that it shall
------------------------------------------
correct nonconforming Product or Licensed Software that have been rejected as a
result of acceptance inspection provided for in Section 6.04 by the following
methods (the choice of which shall be at Buyer's option):
(a) Buyer returns the Product or Licensed Software to Seller at Seller
expense, and Seller shall repair or replace the Product or Licensed
Software within thirty (30) days at no cost to the Buyer.
(b) Buyer repairs the Product at a mutually agreed cost which Seller shall
reimburse to Buyer upon receipt of Buyers invoice, or
(c) Seller, at its expense, shall repair the nonconforming Product at a
facility designated by Buyer.
6.06 Preliminary Data - Seller shall supply preliminary data on the Mean Time
----------------
Between Failure ("MTBF") for the Equipment as soon as practical in the planning
stage of the program. Final MTBF data shall be provided as soon as design
maturity testing of the Equipment is completed. Such MTBF data shall include
failure data on all major subassemblies of the Equipment. Further, should any
revisions or modifications to Equipment or component parts thereof affect the
MTBF of the Equipment, Seller shall supply revised MTBF data within thirty (30)
days of such revisions and modifications.
6.07 Mean Time Between Failure - In the event that a variance should occur such
-------------------------
that the actual MTBF is below the MTBF specified in Attachment I, Seller will
implement a corrective action program acceptable to Xerox to correct such
variance. If the average MTBF for Equipment nonetheless remains below that
specified in Attachment I after such corrective action is implemented, Seller
agrees to implement a new corrective action program and repair all failed
Equipment and affected Spares, at no cost to the Buyer. [*]
6.08 Replaced Products - All Products or Licensed Software repaired or replaced
-----------------
by Seller pursuant to this Article shall be subject to all quality assurance and
inspection requirements in accordance with the provisions of Article VI.
6.09 Program Milestone Management - The parties agree that achievement of
----------------------------
certain key milestones must be managed actively to assure that the initiation of
delivery of Products and Licensed Software meets Buyer's market requirements.
The program management team may identify key milestones which shall be included
in Attachment IV. When such program milestones are included in Attachment IV,
both parties agree to apply diligent efforts to assure that the progress of the
program is kept on schedule.
If it is determined by either party that the progress of key program milestones
is insufficient to assure the Product market launch schedule is maintained,
identified managers within each company shall be empowered to schedule a
milestone exception review upon written notification to the other party.
Milestone exception reviews will be held at a mutually agreed location within
ten (10) working days of such written notification and will be attended by Xerox
and Seller program team members that the identified managers may select. The
senior managers of each company will review the problems and causes for delay in
achieving the key program milestones and commit the necessary resources within
their company to recover or minimize the program delay.
[*] CONFIDENTIAL TREATMENT REQUESTED
9
<PAGE>
Xerox & SMT Hardware Purchase and Software Development/License Agreement
6.10 Source Verification - Buyer shall have the right to conduct, at its
-------------------
expense, source verification activities, in accordance with the Xerox Supplier
Quality Assurance Procedures set forth in Attachment II at Seller's
manufacturing site. All such source verification activities shall be scheduled
within one (1) week of receipt of notice from Seller indicating that Products or
Licensed Software are ready for verification. Any request for a repeat
verification of Products or Licensed Software that did not pass initial
verifications or emergency situations shall require a forty eight (48) hour
notice period.
VII. TERM AND TERMINATION
7.01 Term - This Agreement shall commence on the Effective Date and shall
----
continue for a period of [*] unless one party gives written notice of its intent
to terminate this Agreement [*]. The provisions of this Article VII shall not
apply to the sale of Spares which shall be governed solely by the provisions of
Article XI.
7.02 Termination For Cause - Either party may terminate this Agreement or any
---------------------
purchase order issued hereunder effective immediately upon written notice of
termination to the other party in any of the following events:
a) if the other party materially breaches this Agreement and such breach,
if curable, is not cured within [*] after written notice of breach by
terminating party:
b) if the other party materially breaches this Agreement and such breach
is by its nature not curable.
c) if the other party's performance is delayed for more than [*] for any
reason, including force majeure delays; or
d) upon the rejection of the Licensed Software in accordance with 3.05(c)
except that the Confidential Obligations (the obligations as to Confidential
Information) herein and any other remedies available, such as return of fees,
shall not be waived and shall survive termination.
e) if a petition for relief under applicable bankruptcy regulations is
filed by or against the other party, or the other party makes an assignment for
the benefit of creditors, or a receiver is appointed, or a purchase agreement is
executed for all or substantially all of the other party's assets or of the
shares of stock in such other party and such petition, assignment or agreement
is not dismissed, vacated or terminated within [*]. To the extent applicable law
prevents the non-terminating party from terminating this Agreement as described
above, then the parties shall have only those rights and remedies permitted by
applicable law, including the United States Bankruptcy Act, including but not
limited to 11 U.S.C. Section 365n. Any such Termination shall be automatically
effective at the end of any applicable notice period if any. However, Xerox, as
the non-defaulting party, has the unrestricted right, at its option, not to
terminate this Agreement insofar as it pertains to Licensed Software and to
continue as a licensee of Licensed Software and to market such Licensed Software
in accordance with the terms hereof.
7.03 Termination for Convenience - Xerox reserves the right, in whole or in
---------------------------
part, and in the exercise of its discretion, prior to its Approval of exercise
of its discretion, prior to its Approval of the Licensed Software and Hardware
to terminate this Agreement upon not less than [*] written notice to Seller. In
the event of such termination of this Agreement, in addition to Xerox's
obligations under Article II of this Agreement respecting Products development
work, Xerox' shall be obligated with respect to Licensed Software Development
Work solely to pay Seller for the development work respecting Licensed Software
and Hardware work completed as of the date of termination.
7.04 Termination And Expiration Effect
---------------------------------
a) Except as otherwise set forth in this Agreement or with respect to
obligations which survive the termination or expiration of this Agreement,
Buyer's sole liability to Seller shall be for the payment of any balance due and
owing for conforming Products and Licensed Software delivered prior to the
effective date of termination or expiration.
[*] CONFIDENTIAL TREATMENT REQUESTED
10
<PAGE>
Xerox & SMT Hardware Purchase and Software Development/License Agreement
b) If Buyer is committed to supply Products or Licensed Software to its
customers beyond such termination or expiration date, Seller and Buyer agree to
negotiate in good faith, and in a timely manner, terms and conditions to allow
Buyer to fulfill such commitments. In the absence of agreement as to such terms
and conditions, the parties agree to submit such dispute to arbitration as set
forth in 30.01 hereof. Seller shall continue to deliver Products and Licensed
Software to Buyer during the pendency of such arbitration at price levels which
were in effect immediately prior to such termination or expiration. The
arbitrator has the authority to change the price levels retroactively.
c) Each party shall immediately return to the other all proprietary,
confidential or private data and all copies thereof. Buyer will not have such
obligation to the extent the data is reasonably necessary to support a
reasonable continuing obligation to customers as set forth in 7.03(b). In
addition, notwithstanding the above, Buyer shall retain all rights and
documentation necessary to continue servicing Products sold hereunder and the
right to dispose of its inventory of Products and Licensed Software.
d) Upon the request of Xerox, Seller shall, at Xerox' expense, return all
Xerox Unique Tooling to Xerox or make disposition thereof in accordance with
Xerox' written instructions. Such disposition shall be subject to verification
by Xerox.
e) Seller shall upon request provide a list of vendors for Products and
Spares or components of Products, and Licensed Software, so that Buyer(s) may
source Products, Spares, and components therefor and Licensed Software directly
from such vendors. Further, Seller agrees to provide timely assistance to
Buyer(s) in negotiating supply agreements with such vendors upon Buyer's request
and hereby grants to Buyer(s) the non-exclusive world-wide royalty free right
and license to manufacture, have manufactured, use and sell or otherwise market
any Products or Licensed Software, spares, or components thereof, which are
proprietary to Seller or which, for any reason, a license from Seller is
necessary for Buyer to manufacture, use and sell or otherwise market any
Products or Licensed Software and to the extent necessary, shall obtain from a
third party the necessary licenses for Buyer to have the rights specified in
this Paragraph.
VIII. DELIVERIES
8.01 Transportation And Packaging - All Products and Licensed Software will be
---------------------------
shipped with commercial packaging suitable for shipment via air or sea, as
applicable, in standardized containers in accordance with the packaging
specifications set forth or referenced in Attachment I for Products and for
Licensed Software. If requested, Seller agrees to assist Buyer or the forwarder
selected by Buyer in arranging the most economical transportation from the
seaport or airport from which the Products or Licensed Software will be shipped.
8.02 Forecasts - Buyer shall submit to Seller a forecast covering the quantity
---------
of Products it then intends to order during the [*] period covered by the
forecast. No forecast is to be construed as a purchase commitment; it is offered
only as an indication of Buyer's then anticipated future requirements to assist
Seller in its planning.
8.03 Early Delivery - Buyer reserves the right, at its option and without
--------------
liability, to:
a) refuse to accept delivery of Products or Licensed Software more than
[*] in advance of the delivery dates set forth in purchase orders and, if
delivered to return such Products or Licensed Software to Seller at Seller's
expense, for subsequent delivery in conformance with such purchase orders; or
b) retain any early delivered Product or Licensed Software and hold
Seller's invoice until the date it would otherwise be due if delivery had been
made on the delivery date set forth in the purchase order.
8.04 Late Delivery - In consideration of increased but not easily calculable
-------------
costs incurred
[*] CONFIDENTIAL TREATMENT REQUESTED
11
<PAGE>
Xerox & SMT Hardware Purchase and Software Development/License Agreement
by Buyer when Seller is late in delivery of Products or Licensed Software, the
parties agree that (a) if delivery is delayed more than [*] and upon request by
Buyer, Seller will airship the Products or Licensed Software and pay any
increase in packaging and shipping costs between air freight and land or ocean
freight, and (b) if delivery is delayed more than [*], Buyer shall have the
right to cancel the delayed Products or Licensed Software with no charge or
penalty to Buyer and such delay, at Buyer's option, shall be deemed a material
breach of this Agreement. This Section 8.04 shall only apply to Purchase Release
Orders that are for quantities that are equal to or less than those that have
appeared on the [*] rolling forecast for at least the [*] immediately preceding
the scheduled month of shipment. Seller shall use best commercial efforts to
accomodate any orders above such amount.
8.05 Manufacturing License - If Seller is unable or unwilling for any reason
---------------------
other than Buyer's material breach of this Agreement, to deliver any Product or
Licensed Software to Buyer hereunder for a period of [*] from the delivery date
for such Product or Licensed Software, Seller hereby grants to Xerox any and all
rights that Seller has that can be transferred to manufacture or have
manufactured the Products or Licensed Software, as applicable. Seller shall also
provide, at the request of Xerox, engineering assistance, documentation and
know-how sufficient to enable Xerox to manufactured or have manufactured the
Products or Licensed Software. In addition, Seller hereby grants to Xerox the
right to contract with Seller's vendors for such purpose. Should such license
grant be implemented, both parties agree to meet in a timely manner to negotiate
in good faith the process of such implementation.
8.06 Rescheduling - Buyer may, upon written notice to Seller, reschedule
------------
Products and Licensed Software for delivery [*], and such rescheduled date must
be no later than [*] after the originally scheduled date.
Notwithstanding the above, Seller will use reasonable efforts to accommodate
Buyer's requested schedule changes.
8.07 Cancellation Without Cause - Buyer may, upon written notice to Seller
--------------------------
cancel any Product or Licensed Software then scheduled for delivery for any
reason whatsoever up to, but no later than, [*] prior to the first day of the
Production Month for such Products. The payment by Buyer of a cancellation
charge as set forth below shall represent Seller's exclusive remedy for a
cancellation by Buyer pursuant to this Section.
a) if notice of cancellation is sent by Buyer at least [*] prior to the
first day of the Production Month for such Products, Buyer may cancel without
any cost or penalty;
b) if notice of cancellation is sent by Buyer less than [*] prior to the
first day of the Production Month for such Products, Buyer shall pay Seller
actual costs incurred in manufacture of the Product prior to issuance of such
notice of cancellation, subject to Seller (i) making its best effort in the case
of Products to cancel parts sourced form external vendors, and to reschedule
over the next two (2) Production Months all possible parts, at no charge to
Xerox, and (ii) advising Buyer of the amount of any actual cancellation cost
incurred and paid, if Seller is unable to effect such complete cancellation
and/or rescheduling. Xerox shall have the right to audit such cancellation
charges. The maximum charges hereunder shall be the actual costs incurred by
Seller in effecting such cancellation or the cost of the canceled Products,
whichever is less.
8.08 Cancellation For Cause - In the event Seller is, for any reason
----------------------
whatsoever, including reasons beyond its control, [*] or more working days
delinquent in meeting the agreed upon delivery schedule of any Product or
Licensed Software, Buyer may, by written notice to Seller, cancel without
liability such delinquent Product or Licensed Software and such delay shall be
deemed, at Buyer's option. a material breach of this Agreement.
8.09 Disposition Of Canceled Product - In the event Buyer cancels any purchase
-------------------------------
order or portion thereof pursuant to 8.07 or 8.08 hereof, Seller may dispose of
the canceled Products or Licensed Software, after removing all identifying marks
which identify the Products or Licensed
[*] CONFIDENTIAL TREATMENT REQUESTED
12
<PAGE>
Xerox & SMT Hardware Purchase and Software Development/License Agreement
Software as Private Label Products or Licensed Software provided that, unless
Buyer's prior consent is obtained, all Xerox Unique Parts are to be removed from
such Products. Should Seller elect to dispose of such canceled Products of
Licensed Software, Buyer shall have the right of first refusal to purchase/
license such canceled Products/Licensed Software at the best price offered to
any third party.
IX PRODUCT AND LICENSED SOFTWARE CHANGES
9.01 Products And Licensed software Changes - The Products and Licensed
--------------------------------------
Software delivered hereunder shall incorporate the latest improvements
implemented by Seller, subject to Xerox' prior written agreement. Seller shall
inform Xerox, in writing, of the following in requesting such approval:
The date of the proposed incorporation of such changes into the Products
or Licensed Software and description of changes affecting the:
a) form (external appearance of finished products or piece parts; or
external dimensions, dimension tolerances or shape);
b) fit (provisions for mounting; changes to mounting holes, holes for
mounting shipping restraints, or holes or fittings for mounting accessory or
optional features; changes in the dimension or shape of internal spaces
available for customer use; changes affecting the interchangeability of parts,
electrical or other power and environmental requirements).
c) function (changes in the Product or Licensed Software specification,
Product or Licensed Software performance, or any changes affecting the Product's
or Licensed Software's reliability); or
d) compatibility of the Products or Licensed Software (changes to or
which affect Product or Licensed Software operation or Product's Spares,
internal logic or timing which might affect application of the Products or
Licensed Software, part number or configuration dash number of parts which can
be replaced in the field, the interchangeability of Spares, service
documentation which might affect a customer's application of the Product).
Xerox shall respond within thirty (30) days to each request for Product or
Licensed Software changes received from Seller indicating its acceptance or
rejection of such change.
9.02 Implementation - Any changes made by Seller and accepted by Xerox pursuant
--------------
to 9.01 hereof shall be implemented in accordance with the schedule indicated by
Seller in the written notification of change. Such changes shall be
incorporated into Products or Licensed Software shipped pursuant to purchase
orders received by Seller after Xerox approved such changes. The serial number
of the first such changed Product shall be identified to Xerox and Seller agrees
that all Products with serial numbers greater than such serial number shall
incorporate such changes.
9.03 Obsolete Inventory - In the event of changes to Products or Licensed
------------------
Software, Seller shall repurchase or exchange from Buyer all Consumables or
Spares and refund any royalties paid on account of Licensed Software which are
in Buyer's inventory and which have become obsolete as a result of any change
to Products or Licensed Software, other than a Products or Licensed Software
change requested by Buyer.
9.04 Effect of Rejection - In the event Buyer rejects a proposed change to
-------------------
Products or Licensed Software, Seller shall remain obligated to deliver Products
and Licensed Software conforming to the applicable specifications, set forth in
this Agreement in the Attachments hereto.
X. AGENCY APPROVAL AND SAFETY
10.01 Compliance - Product and Licensed Software shall comply with all
----------
applicable governmental laws, regulations and other public or private
requirements in effect at the time of shipment hereunder and, in particular, the
safety requirements and governmental or other agency certifications described in
the specifications appearing in Attachment 1.
10.02 Regulatory Agency Approval - Seller shall obtain, at no cost to Buyer,
--------------------------
full Regulatory Agency approvals as required for Products and
13
<PAGE>
Xerox & SMT Hardware Purchase and Software Development/License Agreement
Licensed Software in accordance with the schedules in Attachment IV and
Specifications shown in Attachment I. Seller shall obtain, at no cost to Buyer,
any required Regulatory Agency reapprovals for any Products or Licensed Software
which are modified in any authorized manner hereunder.
10.03 Cost Effects of Changes - In the event that any change in the form, fit
-----------------------
or function (as collectively defined in 9.01) or specification of any Products
or Licensed Software which are necessitated in order to comply with Regulatory
Agency requirements or standards or mutually agreed upon hereunder results in a
significant increase or decrease in the cost of such Products or Licensed
Software, or in the length of time required for the manufacture or delivery
thereof, equitable adjustment to the price of such Products or Licensed
Software or agreed upon shipping date or both shall be made by the parties
pursuant to good faith negotiations.
XI. CONSUMABLES AND EMERGENCY MAINTENANCE SUPPORT
11.01 Spares Listing - Seller shall supply to Xerox, in accordance with the
--------------
schedule set forth in Attachment IV, a recommended Spares listing based on
representative field populations.
11.02 Initial Order - Seller shall deliver to Buyer the initial Spares order
------------
in accordance with the quantities specified in such order and in accordance with
the schedule set forth in Attachment IV.
11.03 Spares And Supplies - Seller shall supply Buyer Spares and Supplies for
-------------------
Equipment for a period of [*] from the last delivery of Equipment under this
Agreement and notwithstanding any Termination hereof pursuant to Article VII. In
this regard, Buyer shall place its final purchase orders for such Spares and
Supplies at least [*] prior to the expiration of such [*] period. Prices of
Spares after the last delivery of Equipment under this Agreement and during this
[*] will be adjusted to reflect actual total costs (manufacturing
plus material) on a [*].
11.04 Equivalent Spares - Buyer agrees to accept equivalent and/or
-------------------
interchangeable (form, fit and function compatible as defined in 9.01 hereof)
Spares and consumables during the [*] period defined 11.03 hereof, if
Seller's source of supply should change and such change is beyond Seller's
reasonable control. The determination as to whether Spares are equivalent and/or
interchangeable shall be made solely by Xerox.
11.05 Emergency Spares Inventory - Seller shall at all times maintain an
--------------------------
inventory of at least [*] of the total cumulative units purchased by Buyer in
the preceding [*] units of each Spare, at no cost to Buyer, and use this supply
solely for shipment to Buyer as emergency Spares, when requested Deliveries of
emergency Spares shall be made within [*] of buyer's request thereor to Seller.
11.06 Priority - Seller shall use its best efforts to have in inventory or
--------
supply Spares to Buyer on a priority basis, inside of Seller's usual lead time,
to replenish any Buyer low stock condition and shall immediately upon receipt of
relevant Purchase Orders, notify Buyer or customers of the anticipated shipment
date of all Spares orders.
11.07 Full Set of Spares - The price of a full set of Spares shall not exceed
------------------
[*] of the then current price of one unit of Equipment.
XII. WARRANTIES
12.01 Express warranties -
------------------
(a) Seller warrants that it has good and marketable title to all Products
delivered to Buyer hereunder that all units of Products shall be free and clear
of all liens, encumbrances, security interests or other claims.
(b) Seller also warrants that it has either good and marketable title to all
units of Licensed Software shipped hereunder or has the right to convey to Xerox
and Xerox Affiliated Companies the right respecting Licensed Software granted
in this Agreement.
(c) Seller further warrants that, unless otherwise agreed in writing, all
Products delivered to
[*] CONFIDENTIAL TREATMENT REQUESTED
14
<PAGE>
Xerox & SMT Hardware Purchase and Software Development/License Agreement
hereunder shall be manufactured solely from new or like new parts and shall
fully conform to the specifications of Attachment I.
(d) Seller further warrants that all Products delivered to Buyer hereunder shall
be free from defects in material and workmanship and shall fully conform to the
specifications of Attachment I for a period of [*] from the date of delivery to
Buyer.
(e) Seller further warrants that Licensed Software shall be substantially free
from program error and fully conform with specifications of Attachment I for a
period of [*] after shipment of the first unit of License Software by
Seller to Buyer.
12.02 Warranty Obligations - With respect to any Products or Licensed Software
--------------------
found to be defective, Seller shall, without charge including freight, deliver
at Buyer's option, repaired or replaced Products or licensed Software within [*]
from the time of Buyer's notification that such defective Products or Licensed
Software exist. Buyer's sole obligation shall be to maintain adequate records
regarding the causes (if know) and dates of such failures and provide such
information to Seller at Seller's request. At Buyer's option, Buyer may repair
the Products or Licensed Software, and in such event Seller shall reimburse
Buyer for actual expenses Buyer incurs in repairing or attempting to repair the
Products or licensed Software.
12.03 Out Of Warranty Service - During the term hereof and for a period of [*]
-----------------------
thereafter, Seller agrees to repair or replace, within [*] of receipt from
Buyer, each product found to be defective following the warranty period of 12.01
at Seller's then flat rate exchange, if required, reasonable travel expenses
when approved in advance by Xerox.
12.04 Repaired And Replaced Products - All Products or Licensed Software
------------------------------
repaired or replaced by Seller under this Article shall be subject to Buyer's
inspection and acceptance in accordance with the provisions of Article VI, and
if accepted, shall be extended new warranties in accordance with 12.01 hereof.
12.05 Systemic Defects - Notwithstanding the warranty requirements and
----------------
conditions of Section 12.01 hereof, Seller will undertake without charge and
without delay to promptly remedy any Systemic Defect in all affected Products or
Licensed Software in inventory or in the field, by delivering to Buyer a
replacement Product or Licensed Software. Seller shall not be required to cure
any Systemic Defect for any Products or License Software which have been
subjected to accident, negligence, misuse, alteration, modification, tempering
or causes other than ordinary use.
12.06 WARRANTY DISCLAIMER - THE EXPRESS WARRANTIES SET FORTH IN THIS ARTICLE,
-------------------
AND THE OBLIGATIONS AND LIABILITIES OF SELLER HEREUNDER, ARE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
XIII. TRAINING
13.01 Seller shall provide to Xerox and Xerox Affiliated Companies, at no
charge for labor or materials supplied, two (2) training courses (1 sales and 1
service) for Xerox and Xerox Affiliated Companies sales and service engineers
with respect to the marketing and servicing/support of Products and Licensed
Software at locations designated by Xerox. The course will be held at venues and
on dates to be agreed. Xerox shall be given one copy of such training materials
which it may copy and distribute for purposes of training other employees or
agents of Xerox and Xerox Affiliated Companies.
13.02 Should Buyer purchase customized or new Products or Licensed Software
from Seller pursuant to 4.10 or 9.01, Seller agrees to offer the same training
as described in 13.01 hereof for each such Product and Licensed Software, at no
cost to Buyer.
XIV. [*]
14.01(a) [*]
[*] CONFIDENTIAL TREATMENT REQUESTED
15
<PAGE>
[*]
14.01(b) Buyer agrees, at its expense, to defend Seller from, and pay any
judgment for, any suit, claim or proceeding (hereafter "Claim") against Seller
alleging that any Product sold or Licensed Software licensed hereunder has
caused injury or damage to the person or property of another arising from the
negligence of Buyer or any of its agents, representatives or employees provided
that Buyer is promptly notified of any claim, given all reasonable assistance
required, and permitted to direct the defense. Seller shall have the right at
all times to participate in the defense of such claim or proceeding at Seller's
expense. Buyer shall have no liability for settlement or costs incurred without
its consent.
14.02 Injunction - In the event that Buyer's use of any of the Products or
----------
Licensed Software is enjoined, Seller shall, at its option and expense, either
substitute fully equivalent Products or Licensed Software not subject to such
injunction, modify the Product or Licensed Software so that it no longer is
subject to such injunction, or obtain for Buyer and its customers the right to
continue using the enjoined Products or Licensed Software. If none of the
foregoing is feasible, and said injunction is in effect for more than three (3)
months, Seller will take back the enjoined Products and Licensed Software from
Buyer and its customers and refund to Buyer the purchase price/royalties/fees
paid therefor, plus return transportation costs.
14.03 Limitations - Seller shall not be liable for any Claim arising solely out
-----------
of or resulting solely from (i) Seller's compliance with or adoption of any
specification, design, feature, mark or symbol, component parts or printed
materials or other information or materials required by Buyer for incorporation
or use with any Products or licensed Software, or (ii) any modification or
reworking made by Buyer, or upon instruction of Buyer performed by Seller, to
any Products or Licensed Software.
14.04 DISCLAIMER OF LIABILITY - NEITHER XEROX, XEROX AFFILIATED COMPANIES, OR
-----------------------
THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, SHALL BE LIABLE FOR
ANY LOSS OR PROFIT WHICH SELLER INTENDED TO OBTAIN BY SALE OF THE "PRODUCTS" OR
LICENSE OF LICENSED SOFTWARE TO BUYER OR OTHER INDIRECT OR CONSEQUENTIAL DAMAGES
OF ANY KIND SUFFERED BY SELLER DUE TO OR IN CONNECTION WITH ANY SUCH CLAIM.
XV. CONFIDENTIAL AND PROPRIETARY INFORMATION
15.01 Except as set forth in Article IV, all information furnished or disclosed
by either party in writing and marked "Confidential," "Proprietary," or
"Private," shall remain the property of the disclosing party. The recipient
shall not disclose such information or any part thereof to any third party and
shall restrict circulation of such information within its own organization on a
need-to-know basis. However, if Buyer is the recipient it may disclose such
information to Xerox and Xerox Affiliated Companies and such Companies shall
restrict circulation of such information within their own organizations on a
need-to-know basis. If either party reproduces any part of such information for
use within its own organization, the recipient shall mark all reproductions by
indicating the disclosing party's proprietary interest. If any such information
is transferred to Buyer's or Seller's vendors, suppliers or customers, such
vendors, suppliers or customers shall be required to maintain the
confidentiality of such information and such transfer must be authorized in
writing by the disclosing party. Such obligation to keep information
confidential shall survive termination or expiration of this Agreement.
[*] CONFIDENTIAL TREATMENT REQUESTED
16
<PAGE>
Xerox & SMT Hardware Purchase and Software Development/License Agreement
15.02 Neither party hereto shall be bound by the confidentiality obligations of
Section 15.01 hereof if:
15.02.1 the information was not specifically designated in writing as
confidential or proprietary at the time of the disclosure or, if the disclosure
was orally made, it had not been initially identified as being confidential and
it had not been reduced to writing and designated as being confidential within
[*] from the date of oral disclosure (and during such not more than [*] period
prior confirmation that such orally disclosed information is confidential such
orally disclosed information shall be treated as confidential information in
accordance with this Article XV;
15.02.2 the information was in the public domain at the time of the
disclosure;
15.02.3 the information becomes publicly available through no fault of
the recipient;
15.02.4 the information was in the recipient's possession, free of any
obligation of confidence, at the time of receipt of the information;
15.02.5 the information becomes available on an unrestricted basis to a
third party from the disclosing party or from someone acting under its control;
15.02.6 the information was developed by employees or agents of the
recipient independently of and without reference to the information disclosed in
confidence;
15.02.7 and to the extent the recipient is obligated to produce the
information under court or government action;
15.02.8 five (5) years have elapsed since the information was disclosed
to the recipient; or
15.02.9 the information is determinable by the public upon reverse
engineering or scrutiny upon inspection when the Products are marketed.
XVI. LIMITATION OF LIABILITY
16.01 A. LIMITATION ON DIRECT DAMAGES - NOTWITHSTANDING ANY OTHER PROVISION
----------------------------
CONTAINED HEREIN TO THE CONTRARY EXCEPT ARTICLE XIV, WHICH SHALL BE
GOVERNED BY ITS TERMS, UNDER NO CIRCUMSTANCES SHALL THE LIABILITY OF
XEROX, XEROX AFFILIATED COMPANIES AND SELLER, SELLER AFFILIATED
COMPANIES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND
AGENTS, FOR DIRECT DAMAGES EXCEED THE PURCHASE PRICE RECEIVED BY
SELLER FOR THE PRODUCT OR LICENSED SOFTWARE FROM WHICH THE CLAIM AROSE
OR ONE HUNDRED THOUSAND ($100,000) DOLLARS, WHICHEVER IS GREATER
WHETHER ARISING IN CONTRACT IN TORT (INCLUDING WITHOUT LIMITATION
NEGLIGENCE) OR ANY OTHER THEORY.
B. DISCLOSURE OF OTHER DAMAGES - NOTWITHSTANDING ANY OTHER PROVISION
---------------------------
CONTAINED HEREIN TO THE CONTRARY EXCEPT ARTICLE XIV, WHICH SHALL BE
GOVERNED BY ITS TERMS, XEROX, XEROX AFFILIATED COMPANIES, AND SELLER
SPECIFICALLY DISCLAIM AND WAIVE AS TO EACH OTHER AND THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS ANY AND ALL LIABILITY FOR
DAMAGES OTHER THAN DIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO
PUNITVE OR EXEMPLARY DAMAGES, HOWEVER DENOMINATED AND INDIRECT,
CONSEQUENTIAL, OR INCIDENTAL DAMAGES, WHETHER ARISING IN CONTRACT, IN
TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR ANY OTHER THEORY
EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES AND
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY
PROVIDED HEREIN.
XVII. EXPORT CONTROL
17.01 Seller and Buyer shall comply with all applicable laws and regulations
respecting the export, directly or indirectly, of any technical data acquired
from the other under this
[*] CONFIDENTIAL TREATMENT REQUESTED
17
<PAGE>
Xerox & SMT Hardware Purchase and Software Development/License Agreement
Agreement or any Products or Licensed Software utilizing any data to any country
the laws or regulations of which at the time of export, require an export
license or other government approval including but not limited to first
obtaining such license or approval.
XVII. INDEPENDENT PRODUCT DEVELOPMENT
18.01 This Agreement does not and shall not be construed to limit the rights of
Xerox or Xerox Affiliated Companies or Seller and Seller Affiliated Companies
(aside from restrictions contained in Article XIV) to develop competing products
or software.
XIX. FORCE MAJEURE
19.01 Neither Seller nor Buyer shall be liable to the other for its failure to
perform any of its obligations hereunder or under any purchase order or
acknowledgment thereof during any period in which such performance id delayed by
unforeseeable circumstances beyond its reasonable control.
XX. NOTICES
20.01 Any notice which may be or is required to be given under this Agreement
shall be in writing. All written notices shall be sent by common carrier,
registered or certified airmail, postage prepaid, return receipt requested. To
the extent this Agreement requires notice to be given to Seller or Xerox, such
notices shall be deemed to have been given when received, addressed in the
manner indicated below or at such other addresses as the parties may from time
to time notify each other of:
BUYER
XEROX CORPORATION
THE XEROX CONNECTION
2200 EAST GRAND AVE ESCG 285
EL SEGUNDO, CA. 90245
Attn:Contract Administrator
SELLER
SUPERMAC TECHNOLOGY, INC.
215 MOFFETT PARK DRIVE
SUNNYVALE, CA. 94089-1374
Atten:Contract Administrator
To the extent this Agreement requires Seller to give notice to a Xerox
Affiliated Company in its capacity as a Buyer then such notice will be deemed to
have been given when received and addressed in the manner agreed to by Seller
and the appropriate Xerox Affiliated Company.
XXI. POINTS OF CONTACT
21.01 Attachment V is included in this Agreement only to provide both parties
with names, addresses and telephone numbers for primary points of contract in
the day to day administration of the activities defined in this Agreement.
XXII. HEADINGS
22.01 The headings and titles of the Articles and Sections of this Agreement are
inserted for convenience only and shall not affect the construction or
interpretation of any provision.
XXIII. AMENDMENT
23.01 This Agreement and the Attachments hereto may be amended only by a
document in writing duly signed by authorized representatives of both parties.
XXIV. ASSIGNMENT
24.01 Seller or Buyer may not assign this Agreement except as provided for in
this section to any other party without the prior written consent of Buyer or
Seller, which consent shall not be unreasonably withheld. Buyer or Seller may
assign this Agreement only to a parent, subsidiary or affiliated firm, to a
third party in connection with a merger, consolidation or joint venture, or to a
third party upon a sale or transfer or substantially all of Buyer's or Seller's
business assets.
18
<PAGE>
Xerox & SMT Hardware Purchase and Software Development/License Agreement
XXV. PRODUCT RECYCLING
25.01 Product Recycling - In the event Products or Licensed Software are
-----------------
returned to Buyer after Buyer's sale, lease, or license thereof, Buyer has the
right, without payment or renumeration of any kind or type to Seller, to use,
remanufacture, refurbish, or recondition and thereafter remarket such Products.
Such processes may include by way of illustration and not of limitation
disassembly of Products to a standard determined by Buyer, the addition of new,
used, or reprocessed components cleaning, refinishing, and retrofitting Products
with all applicable retrofits. However, Buyer's right to remarket Products and
Licensed Software is not contingent upon Buyer's remanufacturing, refurbishing
or reconditioning of the Products and such remanufacturing, refurbishing or
reconditioning by Buyer shall be deemed a repair of the Products. Such
remanufacturing, refurbishing or reconditioning and thereafter remarketing of
Products and Licensed Software by Buyer shall not be deemed nor constitute a
violation by Buyer of any of Seller's rights,including but not limited to
Seller's patents rights respecting the Products and Licensed Software.
XXVI. SEVERABILITY
26.01 If any provision of this Agreement is held invalid by any law, rule, order
or regulation of any government, or by the final determination of a court of
last resort, such invalidity shall not affect (a) the other provisions of this
Agreement, (b) the application of such provision to any other circumstance
other than that with respect to which this Agreement was found to be
unenforceable, or (c) the validity or enforceability of this Agreement as a
whole.
XXVII. WAIVER
27.01 Failure or delay of either party to exercise any right or remedy under
this Agreement or to require strict performance by the other party of any
provision of this Agreement shall not be construed to be a waiver of any such
right or remedy or any other right or remedy hereunder. All of the rights of
either party under this Agreement shall be cumulative and may be exercised
separately or concurrently.
XXVIII. SURVIVAL
28.01 Unless this Agreement expressly provides otherwise or by its nature a
provision cannot survive this Agreement, the provisions of this Agreement shall
survive the expiration or any termination of this Agreement.
XXIX. ETHICAL STANDARDS
29.01 Seller agrees that, with respect to its role as supplier to Buyer
including any interaction with any employee of Buyer, Seller shall not: (1) give
or offer to give any gift or benefit to any such employee of Buyer, (2) solicit
or accept any information, data, services, equipment, or commitment from such
employee unless same is (i) required under a contract between Buyer and Seller,
or (ii) made pursuant to a written disclosure Agreement between Buyer and
Seller, or (iii) specifically authorized in writing by Buyer's management, (3)
solicit or accept favoritism from said employee, and (4) enter into any outside
business relationship with said employee without full disclosure to, and prior
approval of, the appropriate management of Buyer. As used herein: "employee"
includes members of the employee's immediate family and household, plus any
other person who is attempting to benefit from his or her relationship to the
employee. "Seller" includes all employees and agents of Seller. "Gift or
benefit" includes money, goods, services, discounts, favors and the like in any
form but excluding low value advertising items such as pens, pencils, and
calendars.
XXX. ARBITRATION
30.01 The parties shall attempt in good faith to resolve any dispute arising out
of or relating to this agreement promptly by negotiations between executives who
have authority to settle the controversy. Any party may give the other
party(ies) written notice of any dispute not resolved in the normal course of
business. Within 20 days after delivery of said notice, executives of both
parties who have not been personally and substantially involved in the events
leading up to the dispute, and who have authority to settle the dispute, shall
meet at a mutually acceptable time and place, and thereafter as often as they
reasonably deem
19
<PAGE>
Xerox & SMT Hardware Purchase and Software Development/License Agreement
necessary, to exchange relevant information and to attempt to resolve the
dispute. If the matter has not been resolved within 60 days of the disputing
party's notice, or if the parties fail to meet within 20 days, either party may
initiate arbitration of the controversy or claim as provided hereinafter.
If a negotiator intends to be accompanied at a meeting by an attorney, the other
negotiator shall be given at least three working days' notice of such intention
and may also be accompanied by an attorney. All negotiations pursuant to this
clause are confidential and shall be treated as compromise and settlement
negotiations for purposes of the Federal Rules of Evidence, state rules of
evidence, and other applicable law.
If the parties are unable to resolve the dispute by negotiations as set forth
above, such dispute shall be settled by arbitration, conducted on a confidential
basis, under the then current commercial Arbitration Rules of the American
Arbitration Association ("the Association") strictly in accordance with the
terms of this Agreement and the substantive law of the State of California. The
arbitration shall be held at a mutually agreeable location in Los Angeles,
California and conducted by one arbitrator chosen from a list of attorneys who
are knowledgeable about the data processing and business equipment industries.
The costs of the arbitration, including the fees to be paid to the arbitrator,
shall be shared equally by the parties to the dispute. The parties to the
dispute shall be limited to taking no more than three (3) depositions. The scope
of document production shall be governed by the commercial Arbitration Rules of
the Association and the decision of the arbitrator with respect thereto. The
Judgment upon the award rendered by the arbitrator may be entered and enforced
in any court of competent jurisdiction. Neither party shall be precluded hereby
from seeking provisional remedies in the courts of any jurisdiction including,
but not limited to, temporary restraining orders and preliminary injunctions, to
protect its rights and interests, but such shall not be sought as a means to
avoid or stay arbitration. To the extent this Agreement contains a limitation
and/or disclaimer of liability clause, the terms of such clause will be applied
by the arbitrator. If this Agreement does not contain a limitation and/or
disclaimer of liability clause the maximum monetary award that can be rendered
by the arbitrator will be ten (10) million dollars and such award shall not
include any consequential, incidental, punitive, or exemplary damages. The
parties agree that they have voluntarily agreed to arbitrate their disputes in
accordance with the foregoing.
XXXI. NONPUBLICITY
31.01 Without the prior written consent of either party to this Agreement,
Seller nor Buyer shall not (a) make any news release, public announcement,
denial or confirmation of this Agreement or its subject matter, or (b) advertise
or publish any facts relating to this Agreement.
XXXII. CONTROLLING LAW
32.01 This Agreement shall be governed by and construed in all respects in
accordance with the laws and regulation of the State of California, U.S.A. The
definitions set forth in the Incoterms of the International Chamber of Commerce,
1990 edition, shall be controlling. To the extent there may be any conflict
between the law of the State of California and the Incoterms, the Incoterms
shall be controlling. The parties specifically agree that the 1980 United
Nations Convention on Contracts for the International Sale of Goods, as such may
be amended from time to time, shall not apply to this Agreement.
XXXIII. CONTROLLING LANGUAGE
33.01 This Agreement is in English only, which language shall be controlling in
all respects. All documents exchanged under this Agreement shall be in English
only.
XXXIV. REMEDIES CUMULATIVE
34.01 Except as otherwise set forth herein, any rights of cancellation or
termination, or remedies prescribed in this Agreement are cumulative and are not
intended to be exclusive of any other remedy of which the injured party may be
entitled to herein or at law or in equity, including but not limited to the
remedy of specific performance.
20
<PAGE>
Xerox & SMT Hardware Purchase and Software Development/License Agreement
XXXV. INTEGRATION
35.01 With the exception of the Tooling Agreement, this Agreement constitutes
the entire agreement of the parties as to the subject matter hereof and
supersedes any and all prior oral or written understandings and agreements as to
such subject matter, including any preprinted terms and conditions contained in
any purchase orders and acknowledgements issued hereunder.
XEROX CORPORATION SELLER
By:/s/ John A Lopiano By:/s/ Louis J. Doctor
------------------------------------ -----------------------
JOHN A LOPIANO LOUIS J. DOCTOR
- --------------------------------------- -------------------------
(Typed/Printed Name)
PRESIDENT, PRINTING SYSTEMS DIVISION EXECUTIVE VICE PRESIDENT
- -------------------------------------- --------------------------
(Title) (Title)
11/11/93 NOVEMBER 01, 1993
- -------------------------------------- --------------------------
(Date) (Date)
(Typed/Printed Name) (Typed/Printed Name)
21
<PAGE>
ATTACHMENT III
PRICING (FOR NEW ORDERS)
There are five "Basic" board level products:
1) a 128MB v3 Splash Power Kit Pro
2) a 128MB Splash.TX v2.5
3) a 72MB PostScript print only medium range version: Splash.MX v2.5
4) a 72MB v3 version with scanning and direct Export printing: Splash Power Kit
5) a 72MB v2.5 version with scanning and direct Export printing: Splash.MXplus
All the above board level products, with the exception of the Splash.MX, include
the Color Central for Splash OPI server (Lite version). In addition, there are
three "System Configurations", as defined in the next paragraph. Finally,
spares, upgrades, and repair pricing is included. Each of these products will
have a volume discount based on the total prediscount transfer revenue of
purchases of all products aggregated. Xerox may choose the volume discount level
at which purchases shall begin. There is also a bill back arrangement for
failure to purchase a minimum aggregate revenue of products on an annual basis.
SYSTEM CONFIGURATIONS: The three system configurations will be Apple Power
Macintosh or Power Macintosh compatible based, with the following minimum system
configuration specifications. The systems will have the Splash Hardware, Splash
Software, and all other bundled software loaded and preconfigured. The warranty,
service, and support for the items included other than the Splash board and
Splash software will only be the standard terms provided to Customers by Adobe,
Apple, Radius, and/or SuperMac. None of the clauses in the contract with respect
to warranty, repair, or support will apply to these other system components.
Splash Power Series P70 97K25090
-------------------
Minimum functional specification:
(could also be better/later versions)
1. Splash.MX controller board set
2. Splash v3.0 release software
3. 14" color display
4. All configuration and installation
5. 66MHz Power PC Macintosh compatible with NuBus
6. System software 7.5
7. 12 MB RAM
8. 350 MB disk
9. built-in EtherTalk and LocalTalk
10. external CD ROM drive
11. keyboard and mouse
12. additional documentation
<PAGE>
Splash Power Series P85 97K22820
- ------------------
Minimum functional specification:
(could also be better/later versions)
1. Splash.MXplus controller board set
2. Splash v3.0 release software
3. Color Central for Splash OPI software (Lite version)
4. Adobe Photoshop LE imaging software
5. 17" color display
6. 24-bit graphics display capability
7. All configuration and installation
8. 80MHz PowerPC Macintosh compatible with Nubus
9. System software 7.5
10. 16 MB RAM
11. 500 MB disk
12. built-in EtherTalk and LocalTalk
13. built-in CD ROM drive
14. keyboard and mouse
15. additional documentation
Splash Power Series P105 97K22830
- ------------------
Minimum functional specification:
(could also be better/later versions
1. Splash.TX controller board set
2. Splash v3.0 release software
3. Color Central for Splash OPI software (Lite version)
4. Adobe Photoshop LE imaging software
5. 17" color display
6. 24-bit graphics display capability
7. All configuration and installation
8. 100MHz PowerPC Macintosh compatible with Nubus
9. System software 7.5
10. 16 MB RAM
11. 500 MB disk
12. built-in EtherTalk and LocalTalk
13. built-in CD ROM drive
14. keyboard and mouse
15. additional documentation
<PAGE>
[*]
[*] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
STANDARD CONTRACT PRICE FOR THE PRODUCTS:
The Standard Prices for the Products are as follows:
Full products:
Splash.MX v2.5 board 98K23700 [*]
Splash Power Series P70 v3 System (MX) 97K25090 [*]
Splash.MXplus v2.5 board 98K32420 [*]
Splash Power Kit v3 board (MX+) 98K39640 [*]
Splash Power Series P85 v3 System 97K22820 [*]
Splash.TX v2.5 board 98K32430 [*]
Splash Power Kit Pro v3 board (TX) 98K39650 [*]
Splash Power Series P105 v3 System 97K22830 [*]
Upgrades:
Splash v3 Software/Key Upgrade Kit 300K49920 [*]
Other Products:
Splash.MX daughter board spare 160K01960 [*]
Splash.MXplus daughterboard spare 160K08280 [*]
Splash.TX daughterboard spare 160K08300 [*]
Splash baseboard spare 160K01950 [*]
PowerPC 601/66 Controller spare TBD [*]
PowerPC 601/80 Controller spare TBD [*]
PowerPC 601/100 Controller spare TBD [*]
17" Color Monitor 128K00560 [*]
Color Central Deluxe 300K49950 [*]
14" Color Monitor 128K00550 [*]
External Mac compatible CD ROM drive TBD [*]
ESD Wrist Strap 115E3970 [*]
Splash Cable 152K633320 [*]
Splash v2.5 User's Manual Set 709P00094 [*]
Color Central Lite spare 300K49940 [*]
Adobe Photoshop LE spare TBD [*]
Splash v2.5 Software Spare 300K42730 [*]
Splash v3.0 Manual Set 709P00108 [*]
Splash v3.0 Software Spare 300K49930 [*]
Keyboard 110K07450 [*]
Mouse 18K00770 [*]
Orders for the above items marked with * must be place with a minimum quantity
of 25 per delivery date.
[*] Confidential Treatment Requested.
<PAGE>
[*]
Out of Warranty Repair costs:
The following out of warranty standard board repair costs apply during the time
that the boards are in production. This repair charge will not, however,
apply to any boards rendered unrepairable due ot physical abuse or damage.
Splash.MX Daughter board [*]
Splash.MXplus Daughter board [*]
Splash.TX Daughter board [*]
Splash Baseboard [*]
[*] Confidential Treatment Requested.
<PAGE>
Accepted and Agreed as a contract attachment ammendment:
By: Harvey L. Huddleston By: Kevin Macgillivray
------------------------- -----------------------------
Title: Com, The Xerox Connection Title: General Manager
----------------------- --------------------------
Date: March 31, 1995 Date: 4/10/95
----------------------- --------------------------
Xerox Corporation Radius (SuperMac Technology)
[*] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
ATTACHMENT IV
DEVELOPMENT WORK SCHEDULE
Macro Level
Milestone Date Milestone Deliverable
10/25/93 Alpha Version Mid Range Product To be determined
SW and HW with preliminary User number of prototype
Interface, no sorter, no Windows Mid Range boards
Driver. and Software
11/22/93 Beta Version Mid Range Product To be determined
with Beta Version of User number of Beta Version
interface, no sorter, no Windows Mid Range boards and
Driver Software
1/31/94 Final shipping version Mid Range Begin Production
Product with Final User Interface, version deliveries
no Windows Driver
4/18/94 Alpha Versions of High End and Lite To be determined
Products HW and SW for all three number of Alpha version
version including Windows Driver High End and Lite
and sorter support boards and Software
5/30/94 Beta Versions of High End and Lite To be determined
Products HW and SW Adobe qualified number of Beta version
for Beta Release High End and Lite
boards and Software
6/27/94 Final Shipping Versions of High End Begin Production
and Lite Products and SW with final version deliveries
Adobe qualification
[*] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
ATTACHMENT "V" XEROX AND SUPERMAC TECHNOLOGY CONTACTS
<TABLE>
<CAPTION>
XEROX CONTACTS SUPERMAC CONTACTS
<S> <C>
BUYER AND CONTACT ADMINISTRATION CONTRACT ADMINISTRATION
- -------------------------------- -----------------------
Harvey L. Huddleston Ron Moore
The Xerox Connection SuperMac Technologies
2200 East Grand Ave. 215 Moffett Park Dr.
El Segundo, CA 90293 Sunnyvale, CA 94089-1374
Tel: 310-333-4217 Tel: 408-541-5277
Fax: 310-333-4222 Fax: 408-541-6150
SUPPLY & DEMAND ORDER ADMINISTRATION
- --------------- --------------------
Joy Lipari Norma Catt
The Xerox Connection SuperMac Technologies
2200 East Grand Ave. 215 Moffett Park Dr.
El Segundo, CA 90293 Sunnyvale, CA 94089-1374
Tel: 310-333-4217 Tel: 408-541-5082
Fax: 310-333-4222 Fax: 408-541-5005
MAJESTIC PRODUCT MANAGEMENT GENERAL MANAGER-COLOR HARD COPY GROUP
- --------------------------- -------------------------------------
Mark Audino Mark Housley
Xerox Corp. SuperMac Technologies
800 Phillips Rd., Bldg. 311 215 Moffett Park Dr.
Rochester, NY 14580-9701 Sunnyvale, CA 94089-1374
Tel: 716-427-4316 Tel: 408-541-5215
Fax: 716-427-4904 Fax: 408-541-6150
MAJESTIC TECHNICAL PROGRAM MANAGER TECHNICAL PROGRAM MANAGER
- ---------------------------------- -------------------------
Vittal Shenoy Tim Kleffman
800 Phillips Rd., Bldg. 311 215 Moffett Park Drive
Rochester, NY 14580-9701 Sunnyvale, CA 94089-1374
Tel: 716-422-4199 Tel: 408-541-5109
Fax: 716 Fax: 408-541-6150
MAJESTIC MULTINATIONAL PRODUCT LAUNCH MANAGER
- ---------------------------------------------
Fred Peeks
800 Phillips Rd., Bldg. 311
Rochester, NY 14580-9701
Tel: 716-427-4448
</TABLE>
<PAGE>
ATTACHMENT "X" - TECHNICAL SUPPORT
ATTACHMENT X
SOFTWARE SUPPORT
SuperMac will provide support described below between the hours of [*]
Monday through Friday.
FIRST LEVEL SUPPORT RESPONSIBILITIES
Xerox will act as the initial point of contact and provide customer assistance
during the pre-sale and pre-install phases of the Products.
Xerox will provide limited post-sale first level telephone hotline support as
needed, and engage SuperMac for the more involved support. As a function of the
initial contact, Level 1 Support shall direct customer diagnostics operation to
attempt to isolate between copier and Splash failures, then to isolate hardware
failures to determine if there is a Splash product hardware failure.
Xerox will provide support to the customer during the installation and post
installation of the Products to enhance customer satisfaction. Level 1 Support
shall either (i) satisfy the customer, (ii) dispatch a hardware replacement to
the customer to replace defective hardware, or (iii) For North America Customer
Operations: pass the call to Level 2 Support for further diagnosis, and for
Europe and Latin America: use email, fax or telephone in English to pass
information to Level 2 support. The Level 1 Support provider shall always remain
primarily responsible for the trouble call and shall always confirm with the
customer that subsequent levels of support have satisfied their support
responsibilities.
SuperMac will provide reasonable additional support and training, when requested
by Xerox, during the pre-sale and pre-install phases of the Products.
SECOND LEVEL SUPPORT RESPONSIBILITIES
SuperMac will verify Product problems reported by customers, including
duplicating problems whenever possible in a controlled environment. Level 2
Support shall maintain a reasonable amount of products and other equipment to
allow, if necessary, duplication of the customers operating environment to
assist in diagnosis of the problem. [*] SMT will supply all other equipment. If
the proposed resolution is replacement of hardware. Level 1 Support shall
dispatch the required hardware and handle any further exchanges with the
customer.
SuperMac will report verified Product failures or unresolved problems to third
level support.
SuperMac will provide third level support with all available information and
materials related to any Product failure or unresolved problem for resolution.
SuperMac will coordinate the definition and resolution of all Product problems
reported by a customer, including maintaining contact with the customer
throughout the resolution process and gathering additional diagnostic
information required by third level support.
SuperMac will maintain an integrated file record of Product problems reported,
the nature of each problem, whether or not it has been resolved and the nature
of the solution. Upon the occurence of a problem for which a solution has
previously been developed, SuperMac shall communicate the solution to the end
user without involving third level support.
THIRD LEVEL SUPPORT RESPONSIBILITIES
Level 3 Support shall consist of software and hardware engineers sufficiently
familiar with the design and operation of the product to allow for diagnosis of
complex design and software functional issues. Level 3 Support shall examine
reported failures of the product operation that fail to meet specifications and
shall propose a solution to the problem and a date by which such solution will
be
[*] Confidential Treatment Requested.
<PAGE>
ATTACHMENT "X" - TECHNICAL SUPPORT
available. The time frame in which such proposal shall be made shall be
dependent on the SPAR Severity Level, in accordance with Xerox standard SPAR
resolution times as shown in Attachment X-1.
SuperMac will perform the analysis of reported product failures and unresolved
problems and undertake any efforts to develop solutions of bypasses.
SuperMac will provide first level support or second level support in machine
format for updated programs and associated documentation developed in response
to the resolution of product failures and non-conformances.
SuperMac will provide information, where such information is not clearly
described in the associated documentation, and consulting assistance regarding
the operation of the Products in order to enable second level personnel to
perform their second level support responsibilities.
SuperMac will maintain current updated master libraries for the Product
including all programs and documentation and inform Xerox of any changes or
updates.
HARDWARE REPAIR SUPPORT
Xerox Corp. Customer Operations groups shall inventory spare parts in sufficient
quantity to provide all required dispatched of hardware to resolve customer
problems, both during and after the warranty period.
SuperMac shall, during the warranty period, repair or replace any defective
hardware returned to SuperMac by Xerox Corp. (TXC).
HARDWARE REPAIR SUPPORT
Xerox Corp. Customer Operations groups shall inventory spare parts in sufficient
quantity to provide all required dispatched of hardware to resolve customer
problems, both during and after the warranty period.
SuperMac shall, during the warranty period, repair or replace any defective
hardware returned to SuperMac by Xerox Corp (TXC) at no charge. SuperMac shall
not be obligated to accept returns from any other source.
Subsequent to the warranty period, or for failures not covered by the
warranty, SuperMac shall repair or replace any defective hardware for a flat
exchange fee, except that if the returned hardware is for any reason not
repairable, Supermac shall have the right to charge Xerox the full new purchase
price of any replacement hardware.
SuperMac shall provide hardware repair support for [*] following the date of
last shipment of new units of any particular version of hardware, and shall
allow Xerox (TXC) to do one last spares purchase, necessary to conduct exchanges
for any remaining useful life of the product, concurrent with the final build of
new units. The flat rate exchange fee may be adjusted to reflect increased parts
and/or repair costs during this period.
[*] Confidential Treatment Requested
<PAGE>
ATTACHMENT "X" - TECHNICAL SUPPORT
SOFTWARE SUPPORT
SuperMac shall provide Level 2 and 3 technical support to customers for the
current shipping and last previous shipping versions of the product software, or
in the case of a discontinued hardware product, the last version of the software
that supports such product. Users in possession of any prior version must update
to the most current version in order to receive any assistance from Level 2 or
Level 3 Support.
Software Upgrades are defined as releases of software that are not intended to
provide increase functionality or performance, but to correct errors in
operation in accordance with specifications. Upgrade versions shall be
identified by 1.XX.01 numbers where the XX portion refers to the Upgrade version
number.
Software Upgrades are defined as releases of software that are intended to
provide increase functionality or performance, or to provide compatibility with
application or system software that was not released for general use at the time
of the previous Upgrade version. Upgrade versions shall be identified by
XX.1.01 numbers where the XX portion refers to the Update version number.
During the warranty period of the customer's hardware, superMac shall provide
the most current Update version of the Product software at no cost to the
customer. After the hardware warranty period, SuperMac shall have the right to
charge the customer for software Updates.
SuperMac shall use commercially reasonable efforts to include in each Update
releases solutions for all level 1-3 SPAR's open as of a specified cutoff date
for each Update release, and as many of the level 4 SPAR's as SuperMac in the
reasonable exercise of its discretion considers desirable to incorporate into
any particular Update release.
SuperMac may always, at SuperMac's option substitute an Upgrade version of the
software in place of an Update version to customers within the warranty period
at no charge, but shall be under no obligation to do so.
SuperMac shall not be required to release during the term of the Agreement any
more than one Update version of the software.
Acceptance testing of the software by Xerox, or Xerox and SuperMac in
cooperation shall be definitive on the compliance of the Software with the
specifications. SuperMac at its option may choose to make further Updates or
refinements, and Xerox may request SuperMac, at Xerox' expense, to incorporate
specified changes to the software and its operation, subject to the availability
of engineering resources at SuperMac.
<PAGE>
ATTACHMENT X-1
--------------
MAINTENANCE & SUPPORT
---------------------
SOFTWARE PROBLEM ACTION REQUEST (SPAR)
1. SuperMac will provide MAINTENANCE MODIFICATION services, which will consist
of SuperMac using its reasonable best efforts to design, code, and
implement programming changes to the Products and modifications to the
documentation to correct reproducible errors therein such that the Products
is brought into conformance with the Specifications listed in Attachment I.
2. SuperMac will respond to SPARs (Software Problem Action Requests) and will
use reasonable best efforts to perform the required MAINTENANCE
MODIFICATIONS, for four severity levels, in time frames as shown in TABLE A
below. All times are in working days, i.e., normal business days, measured
from the day the SPAR is received
TABLE A
-------
<TABLE>
<CAPTION>
SPAR Resolution*
Severity Level Time
<S> <C>
--- ---
1 [*]
2 [*]
3 [*]
4 [*]
</TABLE>
All customer PROBLEMS, of which Xerox receives notice, that become SPARs, are
assigned one of the four SEVERITY LEVELS agreed to between the Op Unit/CO, SMT,
and the customer. In case of dispute the voice of the customer takes priority.
The PROBLEM/SPAR SEVERITY LEVEL determines the process timing and priority for
resource allocations to address the PROBLEM. If a customer's current operational
conditions change during the process, the SEVERITY LEVEL may be adjusted, with
agreement between the Op Unit/Co and the customer, based upon any of these
conditions:
. A satisfactory workaround (interim Solution) is found.
. A software update is available that may significantly reduce the impact of
the problem to the customer's business.
. Additional information surfaces concerning the impact of the problem.
SEVERITY LEVEL is not changed based upon business priorities or aging.
The definitions used to determine the correct SEVERITY LEVEL are listed below.
SEVERITY 1 Catastrophic problem; the system is down and/or user has no
production capability.
SEVERITY 2 Severe problem; system is up, but production capability is
seriously degraded.
SEVERITY 3 Moderate problem; the system is up, but production capability is
reduced.
SEVERITY 4 Minor problem; system is up, with no significant impact to
production.
3. All services provided under this Maintenance and Support Agreement shall be
provided from SuperMac's facility.
*Resolution shall mean: a recommended "deliverable" proposed to meet the
customer requirements for a specific problem. The deliverable medium includes,
but is not limited to, any of the following:
[*] Confidential Treatment Requested.
<PAGE>
. Answer to an inquiry or request
. A verbal instruction
. Dispatch of an electronic patch, tape, disk, or medium available
for communicating code changes
. Remote code download
. Dispatch of corrected documentation, or
. Any other solution acceptable to the customer sufficient for
problem closure.
An acceptable resolution is a recommended "deliverable" that totally satisfies
the customer requirements for a specific problem solution, and the problem can
be closed. Further assistance is no longer required. An interim solution is a
recommended "deliverable" that does not totally satisfy the customer
requirements. SuperMac is still responsible for providing an acceptable
solution to the customer. The problem remains open.
.
