AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 23, 1998
REGISTRATION NO. 333-59651
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
AMENDMENT NO. 1 TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
GEMSTONE SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
OREGON 3600 93-1044032
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Classification Code Number) Identification
incorporation or organization) No.)
</TABLE>
20575 NW VON NEUMANN DRIVE
BEAVERTON, OREGON 97006
(503) 533-3000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
BRYAN R. GRUMMON
PRESIDENT
GemStone Systems, Inc.
20575 NW von Neumann Drive
Beaverton, Oregon 97006
(503) 533-3000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------------------
COPIES TO:
RONALD L. GREENMAN, ESQ. TIMOTHY J. MOORE, ESQ.
JEFFREY E. HARMES, ESQ. BRETT D. WHITE, ESQ.
WILLIAM C. STONE, ESQ. DAVID L. WILKE, ESQ.
Tonkon Torp LLP Cooley Godward LLP
1600 Pioneer Tower Five Palo Alto Square
888 SW Fifth Avenue 3000 El Camino Real
Portland, OR 97204-2099 Palo Alto, CA 94306-2155
(503) 221-1440 (650) 843-5000
<PAGE>
---------------------
APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
---------------------
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, check the following box. / /
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, 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(d)
under the Securities Act, 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. / /
---------------------
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>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- - ---------- ----------------------------------------------------------------------
<C> <S>
1.1++ Form of Underwriting Agreement
3.1+ Restated Articles of Incorporation dated August 12, 1993, as amended on May 12, 1995, June 26,
1995, September 4, 1996 and November 18, 1997 (to be superseded by Restated Articles as set forth
in Exhibit 3.2 upon effectiveness of Registration Statement)
3.2+ Form of Restated Articles of Incorporation (to be effective on the effective date of the
Registration Statement)
3.3+ Bylaws, dated as of January 1, 1991 (to be superseded by Restated Bylaws as set forth in
Exhibit 3.4 upon effectiveness of Registration Statement)
3.4+ Restated Bylaws (to be effective upon the effective date of the Registration Statement)
4.1 Articles 3, 4 and 6 of the Restated Articles of Incorporation (see Exhibit 3.2)
4.2 Article 1 of the Restated Bylaws (see Exhibit 3.4)
4.3++ Specimen Stock Certificate
5.1++ Opinion of Tonkon Torp LLP
10.1+* Registrant's Restated 1992 Employees' Stock Option Plan
10.2+* Form of Registrant's 1998 Employees Stock Option Plan
10.3+* Form of Option Certificate and Stock Option Agreement related to Registrant's 1992 and 1998 stock
option plans.
10.4+* Form of Registrant's 1998 Employee Stock Purchase Plan
10.5+ Office/Flex Lease dated for reference purposes July 29, 1996 between
Amberjack, Ltd. and the Registrant, for the Registrant's corporate
headquarters
10.6** Technology License and Distribution Agreement between Registrant and Sun Microsystems, Inc.,
dated July 18, 1996, as amended by Amendment No. 1 dated November 19, 1996, Amendment No. 2 dated
February 23, 1998 and Amendment No. 3 dated effective January 9, 1998
10.7+** Development, Deployment and Reseller's Agreement between Registrant and Systems & Computer
Technology Corporation, dated effective June 1, 1998
10.8+ Software License Agreement between the Registrant and Sprint Communications Company, L.P. dated
August 29, 1996
10.9+* Form of Indemnity Agreement between the Registrant and the directors of the Registrant
10.10++* Consulting Agreement with Jesse Rifkind
21+ Subsidiaries of the Registrant
23.1+ Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Tonkon Torp LLP (included as part of Exhibit 5.1)
24.1+ Power of Attorney
27.1+ Financial Data Schedule
27.2+ Financial Data Schedule
</TABLE>
- ---------------
+ Previously filed
++ To be filed by amendment
* Designates management contract or compensatory plan or arrangement
** Certain portions of this exhibit are omitted pursuant to a request for
confidential treatment.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, GemStone
Systems, Inc. has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Beaverton,
State of Oregon, on August 13, 1998.
GEMSTONE SYSTEMS, INC.
By: /s/ BRYAN GRUMMON
---------------------------------------
Bryan R. Grummon
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or amendment thereto has been signed below by the
following persons in the indicated capacities on August 13, 1998.
SIGNATURE TITLE
- ------------------------------- --------------------------
JAMES BARNES*
- ------------------------------- Chairman of the Board
James P. Barnes
/s/ BRYAN GRUMMON
- ------------------------------- President, Chief Executive
Bryan R. Grummon Officer and Director
JESSE RIFKIND*
- ------------------------------- Director
Jesse Rifkind
/s/ KENNETH IRINAGA Chief Financial Officer
- ------------------------------- (Chief Accounting
Kenneth J. Irinaga Officer)
*By: /s/ Kenneth J. Irinaga
-------------------------
Kenneth J. Irinaga,
Attorney-in-fact
<PAGE>
TECHNOLOGY LICENSE
AND
DISTRIBUTION AGREEMENT*
This Technology License and Distribution Agreement (the "Agreement") is
entered into this 18th day of July, 1996 (the "Effective Date") between Sun
Microsystems, Inc, acting by and through its JavaSoft business unit ("Sun") with
its principal place of business at 2550 Garcia Avenue, Mountain View, California
94043 and GemStone Systems, Inc., an Oregon corporation with its principal place
of business at 15400 N.W. Greenbrier Parkway, Suite 280, Beaverton, OR 97006
("Licensee").
RECITALS
WHEREAS Sun wishes to license its Java[TM]technology while maintaining
compatibility among Java language based products; and
WHEREAS Sun wishes to protect and promote certain trademarks used in
connection with Java technology; and
WHEREAS Licensee wishes to develop and distribute products based upon Sun's
Java technology;
NOW THEREFORE, Sun and Licensee enter into this Technology Licensing and
Distribution Agreement on the following terms.
1.0 DEFINITIONS
1.1 "Applet Application Programming Interface" or "AAPI" means (a) the
public programming interface to the Java Applet Environment reflected in the
Technology as identified in Exhibit A, (b)the bytecode specification in the
Documentation entitled "Java Virtual Machine Specification," (c) the Java
language specification in the Documentation entitled "Java Language
Specification" and (d) the Java API Specification; all as modified by Sun during
the term of this Agreement.
1.2 "Applet" means a Java program which (i) conforms to the AAPI and
(ii) when compiled, consists of Java byte codes executable by the Java Runtime
interpreter (but does not include or incorporate the Java Runtime Interpreter or
Java Classes).
1.3 "Derivative Work(s)" means: (i) for material subject to copyright or
mask work right protection, any work which is based upon one or more
pre-existing works of the Technology, such as a revision, modification,
translation, abridgment, condensation, expansion, collection, compilation or any
other form in which such pre-existing works may be recast, transformed or
adapted, (ii) for patentable or patented materials, any adaptation, subset,
addition, improvement or combination of the Technology, and (iii) for material
subject to trade secret protection, any new material, information or data
relating to and derived from the Technology, including new material which may be
protectable by copyright, patent or other proprietary rights, and, with respect
to each of the above, the preparation, use and/or distribution of which, in the
absence of this Agreement or other authorization from the owner, would
constitute infringement under applicable law.
1.4 "Documentation" means the documentation which Sun provides for use with
the Technology, as more particularly identified in Exhibit A.
*Confidential Treatment Requested
<PAGE>
1.5 "Field of Use" means the relevant market segments and/or product areas
identified in Exhibit B.
1.6 "Intellectual Property Rights" means all intellectual property rights
worldwide arising under statutory or common law, and whether or not perfected,
including, without limitation, all (i) patents, patent applications and patent
rights; (ii) rights associated with works of authorship including copyrights,
copyright applications, copyright registrations, mask work rights, mask work
applications, mask work registrations; (iii) rights relating to the protection
of trade secrets and confidential information; (iv) any right analogous to those
set forth in this Section 1.7 and any other proprietary rights relating to
intangible property (other than trademark, trade dress, or service mark rights);
and (v) divisions, continuations, renewals, reissues and extensions of the
foregoing (as and to the extent applicable) now existing, hereafter filed,
issued or acquired.
1.7 "Java Applet Environment" or "JAE" means the combination of the Java
Runtime Interpreter and the Java Classes.
1.8 "Java Classes" means the Source Code (and corresponding binary code) of
the Java packages identified in Exhibit A.I.a.
1.10 "Java Runtime Interpreter" means the Source Code (and corresponding
binary code) which implements the Java virtual machine, as specified in the Java
Virtual Machine Specification.
1.11 "Licensee Open Classes" means extensions or additions to the Java
classes developed by Licensee which extend the AAPI, and which are made
available to third parties for use in the development of additional software
which outputs Java bytecodes and/or runs on a Java compatible Runtime
Interpreter. Licensee Open Classes do not include interfaces within Products
developed by Licensee which are used only internally by Licensee.
1.12 "Platform Dependent Part" means those Source Code files (and
corresponding binary code) of the JAE which are not in a "share" directory or
subdirectory thereof.
1.13 "Product(s)" means Licensee hardware or software into which the
Technology is included or integrated, in whole or in part. A "Product" including
or integrating the JAE, or any portion thereof must: (i) have a principal
purpose which is substantially different from that of the stand-alone JAE; (ii)
represent a significant functional and value enhancement to the JAE;
(iii) operate in conjunction with the JAE; and (iv) not be marketed as a
technology which replaces or substitutes for the JAE. A current list of
Product(s) is specified in Exhibit B, which may be amended by Licensee to add
Product(s) from time to time.
1.14 "Shared Part" means those Source Code files (and corresponding binary
code) of the JAE which are in any "share" directory or subdirectory thereof.
1.15 "Source Code" means the human readable version, in whole or in part,
of the Technology whether supplied by Sun or any other Java licensee and any
corresponding comments and annotations.
*Confidential Treatment Requested
<PAGE>
1.16 "Technology" means the JAE, the Java Compiler and Updates to the
extent that Licensee is entitled to receive them hereunder.
1.17 "Trademarks" means all names, logos, designs, characters, and other
designations or brands used by Sun in connection with the Technology.
1.18 "Updates" means bug fixes, modifications, variations and enhancements,
to the extent included in a patch or dot release of the Technology for the
platform(s) specified in Exhibit C, which Sun generally licenses as part of the
Technology. The term "Updates" does not include ports of the JAE to platforms
other than those for which the fees have been paid as specified in Exhibit C.
2.0 LICENSE GRANTS
2.1 Source Code License
a. Subject to the terms and conditions contained in this Agreement and
subject to Licensee's payments specified in Exhibit C, Sun hereby grants to
Licensee, under and to the extent of Sun's Intellectual Property Rights and
solely for the Field(s) of Use specified in Exhibit B, a perpetual, worldwide,
non-exclusive, non-transferable license, without the right to sublicense (except
as specified in Section 2.1b(ii)), to: (i) use the Source Code for internal
development and porting, (ii) modify the Source Code to create Derivative Works
(provided that Licensee shall be limited solely to creating Derivative Works
that constitute Product(s), Licensee Open Classes, and Licensee-implemented
modifications to the Platform Dependent Part ("Permitted Derivative Works")),
and (iii) compile the Source Code and Permitted Derivative Works thereof.
Licensee may extend the AAPI by the development of Licensee Open Classes
provided that Licensee complies with the naming conventions of Section 2.5b.
Except for the above-described extensions, Licensee shall have no right to
modify or subset the AAPI or to modify the functional behavior of the Java
Runtime Interpreter.
Except as specified in Section 2.1b(iii), Licensee shall have no right to
distribute the Source Code of the Technology, or Permitted Derivative Works (to
the extent that such Permitted Derivative Works include any of the Source Code).
*Confidential Treatment Requested
<PAGE>
b. Porting.
(i) Licensee may port the Platform Dependent Part to platforms other than
those specified in Exhibit C.
(ii) If Licensee identifies any changes which are necessary to the Shared
Part to enable porting to other platforms, Sun will make reasonable efforts to
evaluate the feasibility of implementing such changes or reclassifying the
necessary code as Platform Dependent.
(iii) Licensee may sublicense and deliver a copy of the Source Code of the
Technology to third parties located in the United States only in association
with the delivery and sublicensing of Licensee Products, and solely for the
purpose of enabling such third party to port or localize Products for Licensee.
Any such sublicense shall be made no less restrictive than the terms and
conditions of this Agreement. Distribution of Source Code outside the United
States will require prior written approval by Sun. The restriction is not
intended to imply geographic restrictions upon the sale and distribution of
Licensee Products.
c. Bug Fixes. Licensee will inform Sun promptly, and no later than it
informs any third party, of any bugs identified in the Technology, and to the
extent that Licensee elects to correct such bugs, Licensee will make the Source
Code of such bug fixes promptly available to Sun free of all restrictions as
they are implemented.
2.2 Binary Code License
a. Internal Use. Sun hereby grants a non-exclusive, worldwide, fully paid
up license to reproduce and use an unlimited number of copies of the Technology
in binary form, for Licensee's internal use during the term of this Agreement.
b. Worldwide Distribution. Sun hereby grants Licensee a worldwide,
nonexclusive license to distribute the Product(s), solely in binary form.
Licensee may use such distribution channels for binary distribution as Licensee
deems appropriate, including distributors, resellers, dealers and sales
representatives (collectively, "Distributors").
*Confidential Treatment Requested
<PAGE>
2.3 Documentation.
a. Sun hereby grants to Licensee, and Licensee hereby accepts, under Sun's
intellectual Property Rights, a non-exclusive, non-transferable license (i) to
use the Documentation for internal development purposes, (ii) to use, modify,
translate, and subset the API Specification, Language Specification, and the
HotJava Online Documentation to create technically accurate Licensee
documentation and for on-line help messages directly applicable to the
Product(s) which shall include all the relevant Sun copyrights, notices, and
marks. Licensee is prohibited from book publishing activities with respect to
the Documentation. Licensee may also use a pointer to the Sun Documentation on
the Internet in connection with distribution of the Product(s).
2.4 Compatibility.
a. Java Compatability.
(i) From time to time, Sun will make available test suites at no cost for
validating that the portion of Licensee's Product which interprets Java
bytecodes complies with the then-current AAPI as defined by Sun as of the date
of that test suite ("Java Test Suite").
(ii) Each version of a Product released by Licensee that interprets Java
bytecodes must pass the Java Test Suite that was current not less than one
hundred twenty (120) days before the beta release of such version of the
Product.
(iii) If Licensee provides Sun with written notice of the existence of a
bug in a current Java Test Suite, then Licensee shall be released from
compatibility with the minimum portion of such Java Test Suite necessary to
avoid the impact of such bug, until such time as Sun provides to Licensee a
corrected or new Java Test Suite.
(iv) Licensee shall use a logo specified by Sun that indicates
compatibility with the Java Test Suite (the "Compatibility Logo") in a trademark
manner on all Licensee Product(s) which include or integrate the JAE distributed
hereunder. The terms and conditions governing the parties' agreement as to
trademarks, logos, and branding shall be governed by the Trademark License
entered into herewith, attached as Exhibit F hereto, and incorporated by
reference herein.
b. Compiler Compatibility.
(i) Any Product(s) that performs a compiling function must continue to
compile the complete Java Language as described in the Java Language
Specification, and be able to generate fully-interpretable machine-independent
bytecodes for the Java Runtime Interpreter as specified in the Java Virtual
Machine Documentation.
*Confidential Treatment Requested
<PAGE>
(ii) From time to time, Sun will make publicly available test suites at no
cost for validating that the portion of Licensee's Product which compiles the
Java Language complies with the then-current Java Language Specification as
defined by Sun as of the date of that test suite ("Java Language Test Suite").
(iii) Each revision of a Product released by Licensee that compiles the
Java language must pass the Java Language Test Suite that was current not less
than one hundred twenty (120) days before the beta release of such version of
the Product.
(iv) If Licensee provides Sun with written notice of the existence of a bug
in a current Java Language Test Suite, then Licensee shall be released from
compatibility with the minimum portion of such Java Language Test Suite
necessary to avoid the impact of such bug, until such time as Sun provides to
Licensee a corrected or new Java Language Test Suite.
c. Applet Tag Compatibility. Any Product that reads or writes hypertext
markup language (HTML) or standard generalized markup language (SGML) shall use
the Document Type Definition ("DTD") as specified in Exhibit E when referencing
the Applet tag, unless another DTD is defined for the Applet tag by an industry
standard.
2.5 Licensee Open Classes
a. Licensee shall deliver to Sun free of all restrictions the specification
for the application programming interface for Licensee Open Classes as early as
is reasonably possible but in no event later than the date on which it first
provides such specification or an implementation thereof to any third party
developer. Included with such specification shall be an appropriate test suite
sufficiently detailed to allow Sun and third parties to produce implementations
compatible with the specification. Licensee shall use its reasonable commercial
efforts to clarify and correct the specification or the test suite upon written
request by Sun, Licensee agrees to refrain from enforcing any Intellectual
Property Rights that it might have relating to the specification of Licensee
Open Classes and test suites. This Section is not intended to restrict
Licensee's rights to enforce any Intellectual Property Rights that may apply to
implementations of Licensee Open Classes and/or test suites.
b. Licensee shall only use names for all Licensee Open Classes that begin
with "COM.Licensee" or such other convention as Sun may reasonably require and
shall not modify or extend the public class or interface declarations whose
names begin with "java", "sun.hotjava", "COM.sun" or their equivalents in any
subsequent naming convention. Licensee will make reasonable commercial efforts
to ensure that other software which it redistributes conforms to this
convention.
c. Licensee hereby grants a non-exclusive, worldwide fully-paid-up license
to use an unlimited number of copies of the Licensee Open Classes, in binary
form, for Sun's internal use, such use including but not limited to
demonstration rights. Licensee agrees to reasonably negotiate in good faith with
Sun the terms of a commercial license for the source code of the Licensee Open
Classes. The parties agree that the fees and other terms and conditions of this
Agreement are a reasonable standard against which to judge such a license on a
proportionate basis comparing the scope and complexity of the Licensee Open
Class being licensed to the scope and complexity of the Technology.
*Confidential Treatment Requested
<PAGE>
2.6 Ownership
a. Ownership by Sun. Sun retains all right, title and interest in the
Technology, Documentation, Updates, bug fixes, Trademarks, and Derivative Works
(except for Permitted Derivative Works), and associated Intellectual Property
Rights. Licensee agrees to execute (in recordable form where appropriate) any
documents Sun may reasonably request to verify and maintain Sun's ownership
rights, or to transfer any part of the same which may vest in Licensee for any
reason. Licensee further agrees to promptly deliver to Sun any Derivative Works
(except for Permitted Derivative Works) of the Technology created by Licensee
pursuant to and during the term of this Agreement. Sun shall have no obligations
of confidentiality to Licensee for such Derivative Works, nor shall Sun be
obligated to incorporate any such Derivative Works into the Technology.
b. Ownership by Licensee. Licensee retains all right, title and interest in
Permitted Derivative Works created by Licensee pursuant to and during the term
of this Agreement, subject to Sun's underlying rights identified in Section
2.6a.
2.7 No Other Grant. Each party agrees that this Agreement does not grant
any right or license, under any Intellectual Property Rights of the other party,
or otherwise, except as expressly provided in this Agreement, and no other right
or license is to be implied by or inferred from any provision of this Agreement
or by the conduct of the parties.
2.8 Contractors. Licensee may retain third parties located in the United
States to furnish services to it in connection with the development of
Product(s); provided however, that all such third parties shall execute
appropriate documents: (i) acknowledging their work-made-for-hire status and/or
effecting assignments of all Intellectual Property Rights with respect to such
work to Licensee or Sun, as appropriate, and (ii) undertaking obligations of
confidentiality and non-use with respect to such work. Sun may, upon its
request, review any documents proposed for use by Licensee prior to any use of
such contractors.
2.9 Pre-Release. Licensee may release Product(s) based on alpha and beta
releases of the JAE and Compiler licensed by Sun hereunder only for alpha or
beta testing Product.
3.0 SUPPORT AND UPDATES
3.1 Updates. Subject to the payment of the fees specified in Exhibit C, Sun
shall provide Updates to Licensee under the terms and conditions of this
Agreement, when and if any such Updates are made available by Sun to any
commercial licensees similarly situated.
3.2 Support. Subject to payment of the fees specified in Exhibit C, Sun
shall provide the support identified therein to Licensee during the term of this
Agreement. The selection of the support engineer shall be at Sun's sole
discretion. Licensee may designate a maximum of XXXX contacts to interface with
the Sun support engineer. Sun shall make reasonable commercial effort to respond
to Licensee requests for support in accordance with the escalation procedure set
forth in Exhibit G hereto.
*Confidential Treatment Requested
<PAGE>
4.0 PAYMENT
4.1 License and Support Fees. Licensee shall pay to Sun the license, update
and/or support fees set forth in Exhibit C within thirty (30) days from the
Effective Date of this Agreement. Thereafter, and for the term of the Agreement,
Licensee shall pay the Support Fee on or before the anniversary of the Effective
Date.
4.2 Royalty Payments. Payment of all royalties shall be made quarterly,
shall be due thirty (30) days following the end of the calendar quarter to which
they relate and shall be submitted with a written statement documenting the
basis for the royalty calculation.
4.3 Taxes. All payments required by this Agreement shall be made in United
States dollars, are exclusive of taxes, and Licensee agrees to bear and be
responsible for the payment of all such taxes, including, but not limited to,
all sales, use, rental receipt, personal property or other taxes and their
equivalents which may be levied or assessed in connection with this Agreement
(excluding only taxes based on Sun's net income).
4.4 Records. Licensee shall maintain account books and records consistent
with Generally Accepted Accounting Principles appropriate to Licensee's
domicile, as may be in effect from time to time, sufficient to allow the
correctness of the royalties required to be paid pursuant to this Agreement to
be determined.
4.5 Audit Rights. Sun shall have the right to audit such accounts upon
reasonable prior notice using an independent auditor of Sun's choice (the
"Auditor"). The Auditor shall be bound to keep confidential the details of the
business affairs of Licensee and to limit disclosure of the results of any audit
to the sufficiency of the accounts and the amount, if any, of a payment
adjustment that should be made. Such audits shall not occur more than once each
year (unless discrepancies are discovered in excess of the five percent (5%)
threshold set forth in Section 4.6, in which case two consecutive quarters per
year may be audited). Except as set forth in Section 4.6 below, Sun shall bear
all costs and expenses associated with the exercise of its rights to audit.
4.6 Payment Errors. In the event that any errors in payments shall be
determined, such errors shall be corrected by appropriate adjustment in payment
for the quarterly period during which the error is discovered. ln the event of
an underpayment of more than five percent (5%) of the proper amount owed, upon
such underpayment being properly determined by the Auditor, Licensee shall
reimburse Sun the amount of said underpayment and all reasonable costs and
expenses associated with the exercise of its rights to audit, and interest on
the overdue amount at the maximum allowable interest rate from the date of
accrual of such obligation.
5.0 ADDITIONAL AGREEMENT OF PARTIES
5.1 Notice of Breach or Infringement. Each party shall notify the other
immediately in writing when it becomes aware of any breach or violation of the
terms of this Agreement, or when Licensee becomes aware of any potential or
actual infringement by a third party of the Technology or Sun's Intellectual
Property Rights therein.
*Confidential Treatment Requested
<PAGE>
5.2 Notices. Licensee shall not remove any copyright notices, trademark
notices or other proprietary legends of Sun or its suppliers contained on or in
the Technology or Documentation. Each unit of Product(s) containing the
Technology distributed by Licensee shall include in Licensee's documentation, or
in other terms and conditions of sale, notices substantially similar to those
contained on and in the Technology. Licensee or its Distributors shall require
an end user license agreement for each unit of Product(s) shipped and Licensee
shall provide Sun with a copy of such form agreement for review and approval. If
Licensee or its Distributors use a package design or label for the Product(s),
such package design or label shall include an acknowledgment of Sun as the
source of the Technology and such other notices as specified in Exhibit F. In
addition, Licensee shall comply with all reasonable requests by Sun to include
Sun's copyright and/or other proprietary rights notices on the Product(s),
documentation or related materials, including but not limited to the notices and
acknowledgments as specified in Exhibit F.
5.3 End User Support. Licensee shall provide technical and maintenance
support service for its distributors and end user customers in accordance with
Licensee's standard support practices. Sun shall not be responsible for
providing any support to Licensee's distributors or customers for the Technology
or the Product(s).
5.4 Marketing. Licensee will cooperate with Sun on mutually agreeable
marketing and promotional activities relating to the Technology. Licensee's
initial press announcement concerning execution of this Agreement must be
reviewed and approved by Sun prior to its release.
5.5 References to Licensee. Licensee hereby authorizes Sun to make
reference to Licensee as a user of the Technology in advertising, marketing,
collateral, customer lists and customer success stories prepared by or on behalf
of Sun for the Technology, provided that Licensee will have the right to approve
the use of its name, such approval not to be unreasonably withheld or delayed.
6.0 LIMITED WARRANTY AND DISCLAIMER
6.1 Limited Warranty. Sun represents and warrants that the media on which
the Technology is recorded will be free from defects in materials and
workmanship for a period of ninety (90) days after delivery. Sun's sole
liability with respect to breach of this warranty is to replace the defective
media. Except as expressly provided in this Section 6.1, Sun licenses the
Technology and Documentation to Licensee on an "AS IS" basis.
6.2 General Disclaimer. EXCEPT AS SPECIFIED IN THIS AGREEMENT, ALL EXPRESS
OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE
HEREBY DISCLAIMED.
6.3 Logo Disclaimer. SUN MAKES NO WARRANTIES OF ANY KIND RESPECTING THE
COMPATIBILITY LOGO(s), INCLUDING THE VALIDITY OF SUN'S RIGHTS IN THE
COMPATIBILITY LOGO(s) IN ANY COUNTRY, AND DISCLAIMS ANY AND ALL WARRANTIES THAT
MIGHT OTHERWISE BE IMPLIED BY APPLICABLE LAW, INCLUDING WARRANTIES AGAINST
INFRINGEMENT OF THIRD PARTY TRADEMARKS.
6.4 Limitation. The warranties set forth in this Section 6.0 are expressly
subject to Section 9.0 (Limitation of Liability).
*Confidential Treatment Requested
<PAGE>
7.0 CONFIDENTIAL INFORMATION
7.1 Confidential Information. For the purposes of this Agreement,
"Confidential Information" means the Technology and that information which
relates to (i) Sun hardware or software, (ii) Licensee hardware or software,
(iii) the customer lists, business plans and related information of either
party, and (iv) any other technical or business information of the parties,
including the terms and conditions of this Agreement. In all cases, information
which a party wishes to be treated as "Confidential Information" shall be marked
as "confidential" or "proprietary" (or with words of similar import) in writing
by the disclosing party on any tangible manifestation of the information
transmitted in connection with the disclosure, or, if disclosed orally,
designated as "confidential" or "proprietary" (or with words of similar import)
at the time of disclosure. Sun has no obligation of confidentiality to Licensee
with respect to Derivative Works (except for Permitted Derivative Works) and the
specifications of the Licensee Open Classes.
7.2 Preservation of Confidentiality. The parties agree that all disclosures
of Confidential Information (as defined under Section 7.1 above) shall be
governed by and treated in accordance with the terms of the Confidential
Disclosure Agreement (the "CDA") attached hereto as Exhibit D and incorporated
herein by reference, modified as follows:
(a) the definition of "Confidential Information" shall be as set forth in
Section 7.1 above notwithstanding any definition set forth in the CDA; (b) the
use of Confidential Information shall be limited to the scope of the licenses
provided in this Agreement;
(c) the obligations of confidentiality expressed in the CDA shall extend
three (3) years beyond termination of this Agreement, except with respect to Sun
Source Code which shall be held in confidence in perpetuity; and
(d) the CDA shall remain in effect for the term of this Agreement.
8.0 LIMITED INDEMNITY
8.1 Licensee acknowledges that portions of the Technology may be in
pre-release form and that Sun shall not be liable for any defects or
deficiencies in the Technology or in any Product, process or design created by,
with or in connection with the Technology whether or not such defect and/or
deficiencies are caused, in whole or in part, by defects or deficiencies in the
design or implementation of the Technology. Sun will provide to Licensee a
limited indemnity as described in Sections 8.2- 8.5 below for the JAE and the
Java Compiler as of the Effective Date, and will include such limited indemnity
for the HotJava Browser upon its first commercial shipment by Sun.
8.2 Sun will defend, at its expense, any legal proceeding brought against
Licensee, to the extent it is based on a claim that use of the FCS or subsequent
version(s) of the Technology, (excluding pre-release versions) ("FCS
Technology") is an infringement of a Berne Convention copyright, and will pay
all damages awarded by a court of competent jurisdiction attributable to such
claim, provided that Licensee: (i) provides notice of the claim promptly to Sun;
(ii) gives Sun sole control of the defense and settlement of the claim; (iii)
provides to Sun, at Sun's expense, all available information, assistance and
authority to defend; and (iv) has not compromised or settled such proceeding
without Sun's prior written consent. XXXX
8.3 Should any FCS Technology or any portion thereof become, or in Sun's
opinion be likely to become, the subject of a claim of infringement for which
indemnity is provided under Section 8.2, Sun shall, as Licensee's sole and
exclusive remedy, elect to: (i) obtain for Licensee the right to use such FCS
Technology; (ii) replace or modify the FCS Technology so that it becomes
non-infringing; or (iii) accept the return of the Technology and grant Licensee
a refund of the License Fee and royalties, as depreciated on a five year
straight-line basis.
*Confidential Treatment Requested
<PAGE>
8.4 Sun shall have no liability for any infringement or claim which results
from: (i) use of other than a current unaltered version of the FCS Technology,
if such version was made available to Licensee; (ii) use of the FCS Technology
in combination with any non-Sun-provided equipment, software or data; or (iii)
Sun's compliance with designs or specifications of Licensee.
8.5 THIS SECTION STATES THE ENTIRE LIABILITY OF SUN WITH RESPECT TO
INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE TECHNOLOGY. SUN SHALL
HAVE NO OTHER LIABILITY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY
RIGHTS OF LICENSEE OR ANY THIRD PARTY AS A RESULT OF USE, LICENSE, OR SALE OF
TECHNOLOGY.
8.6 Indemnity by Licensee. Except with respect to claims for which Sun is
obligated to indemnify Licensee under Section 8.2, Licensee shall defend and
indemnify Sun from any and all claims brought against Sun by third parties, and
shall hold Sun harmless from all corresponding damages, liabilities, costs and
expenses, (including reasonable attorneys' fees) incurred by Sun arising out of
or in connection with Licensee's use, reproduction or distribution of the
Technology or Product(s), or Licensee Open Classes. Licensee's obligation to
provide indemnification under this Section shall arise provided that Sun: (i)
provides notice of the claim promptly to Licensee; (ii) gives Licensee sole
control of the defense and settlement of the claim; (iii) provides to Licensee,
at Licensee's expense, all available information, assistance and authority to
defend; and (iv) has not compromised or settled such proceeding without
Licensee's prior written consent.
9.0 LIMITATION OF LIABILITY
9.1 Limitation of Liability. Except for express undertakings to indemnify
under this Agreement and/or breach of Sections XXXX:
a. Each party's liability to the other for claims relating to this
Agreement, whether for breach or in tort, shall be limited to the license fees
and royalties paid by Licensee for the Technology related to the claims.
b. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES IN CONNECTION WITH OR ARISING OUT OF
THIS AGREEMENT (INCLUDING LOSS OF PROFITS, USE, DATA, OR OTHER ECONOMIC
ADVANTAGE), NO MATTER WHAT THEORY OF LIABILITY, EVEN IF THE EXCLUSIVE REMEDIES
PROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE AND EVEN IF
EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES.
FURTHER, LIABILITY FOR SUCH DAMAGE SHALL BE EXCLUDED, EVEN IF THE EXCLUSIVE
REMEDIES PROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. The
provisions of this Section 9.0 allocate the risks under this Agreement between
Sun and Licensee and the parties have relied upon the limitations set forth
herein in determining whether to enter into this Agreement.
9.2 High Risk Activities. The Technology is not designed or intended for
use in on-line control of aircraft, air traffic, aircraft navigation or aircraft
communications; or in the design, construction, operation or maintenance of any
nuclear facility. Sun disclaims any express or implied warranty of fitness for
such uses. Licensee agrees that it will not use or license the Technology for
such purposes, and that it will ensure that its licensees and end users of the
Technology are provided a copy of the foregoing notice.
*Confidential Treatment Requested
<PAGE>
10.0 TERM AND TERMINATION
10.1 Term. The term of this Agreement shall begin on the Effective Date and
shall continue for a period of five (5) years, or until terminated as provided
below. Each year for five (5) consecutive years following expiration of the
initial five (5) year term, at Licensee's sole option, Licensee may extend the
term of this Agreement for one (1) additional year. Licensee shall indicate its
intent to extend the Agreement by written notice to Sun within thirty (30) days
prior to the expiration of the preceding term. Termination is permitted either
for breach of this Agreement, upon thirty (30) days written notice to the other
party and an opportunity to cure within such thirty (30) day period, or upon any
action for infringement of any Intellectual Property Rights relating to the
Technology by Licensee against Sun or any of Sun's licensees of the Technology.
10.2 Effect of Expiration. Upon expiration of this Agreement, Sun shall
retain use, under the terms of this Agreement, of the Intellectual Property
Rights received hereunder, and Licensee shall be authorized to: (i) distribute
Product(s) containing the version of the Technology incorporated therein at the
time of expiration, subject to Licensee's continued compliance with the Test
Suites current at the time of expiration, and payment of royalties, and (ii)
retain one (1) copy of the Technology in Source Code form to support customers
having copies of Product(s) distributed by Licensee prior to the expiration
hereof. All other rights of Licensee shall terminate-upon such expiration.
10.3 Effect of Termination. In the event of termination of this Agreement
by Sun in accordance with Section 10.1 above, Licensee shall promptly: (i)
return to Sun all copies of the Technology and Derivative Works thereof in
tangible or electronic form, Documentation, and Confidential information
(collectively "Sun Property") (excluding Permitted Derivative Works) in
Licensee's possession or control; or (ii) permanently destroy or disable all
copies of the Sun Property in Licensee's possession or control, except as
specifically permitted in writing by Sun; and (iii) provide Sun with a written
statement certifying that Licensee has complied with the foregoing obligations.
All rights and licenses granted to Licensee shall terminate upon such
termination.
10.4 No Liability for Expiration or Lawful Termination. Neither party shall
have the right to recover damages or to indemnification of any nature, whether
by way of lost profits, expenditures for promotion, payment for goodwill or
otherwise made in connection with the business contemplated by this Agreement,
due to the expiration or permitted or lawful termination of this Agreement. EACH
PARTY WAIVES AND RELEASES THE OTHER FROM ANY CLAIM TO COMPENSATION OR INDEMNITY
FOR TERMINATION OF THE BUSINESS RELATIONSHIP UNLESS TERMINATION IS IN MATERIAL
BREACH OF THIS AGREEMENT.
10.5 No Waiver. The failure of either party to enforce any provision of
this Agreement shall not be deemed a waiver of that provision. The rights of Sun
under this Section 10.0 are in addition to any other rights and remedies
permitted by law or under this Agreement.
10.6 Survival. The parties' rights and obligations under Sections 2.0, 4.0,
5.2, 6.0, 7.0, 8.0, 9.0, 10.0, and 11.0 shall survive expiration or termination
of this Agreement, excluding in the event of breach by Licensee, Licensee's
rights under Section 2.0, which shall terminate.
*Confidential Treatment Requested
<PAGE>
10.7 Irreparable Harm. The parties acknowledge that breach of Sections 2.0,
5.2, 7.0, 9.2, or 11.6 may cause irreparable harm, the extent of which would be
difficult to ascertain. Accordingly, they agree that, in addition to any other
legal remedies to which a non-breaching party might be entitled, such party may
seek immediate injunctive relief in the event of a breach of the provisions of
such Sections.
11.0 MISCELLANEOUS
11.1 Notices. All notices must be in writing and delivered either in person
or by certified mail, postage prepaid, return receipt requested, to the
person(s) and address specified below. Such notice will be effective upon
receipt.
<TABLE>
<CAPTION>
Sun Licensee
<S> <C>
Sun Microsystems, lnc. GemStone Systems, Inc.
2550 Garcia Avenue 15400 N.W. Greenbrier Parkway Mountain View,
California 94043 Suite 280
Attn: JavaSoft Business Development Beaverton, Oregon 97006
cc: JavaSoft Legal Department Attn: _________________________
</TABLE>
11.2 Partial Invalidity. If any term or provision of this Agreement is
found to be invalid under any applicable statute or rule of law then, that
provision notwithstanding, this Agreement shall remain in full force and effect
and such provision shall be deleted unless such a deletion would frustrate the
intent of the parties with respect to any material aspect of the relationship
established hereby, in which case, this Agreement and the licenses and rights
granted hereunder shall terminate.
11.3 Complete Understanding. This Agreement and the Exhibits hereto
constitute and express the final, complete and exclusive agreement and
understanding between the parties with respect to its subject matter and
supersede all previous communications, representations or agreements, whether
written or oral, with respect to the subject matter hereof. No terms of any
purchase order or similar document issued by Licensee shall be deemed to add to,
delete or modify the terms and conditions of this Agreement. This Agreement may
not be modified, amended, rescinded, canceled or waived, in whole or part,
except by a written instrument signed by the parties.
11.4 Language. This Agreement is in the English language only, which
language shall be controlling in all respects, and all versions of this
Agreement in any other language shall be for accommodation only and shall not be
binding on the parties to this Agreement. All communications and notices made or
given pursuant to this Agreement, and all documentation and support to be
provided, unless otherwise noted, shall be in the English language.
*Confidential Treatment Requested
<PAGE>
11.5 U.S. Government Restricted Rights. If Licensee is licensing Product or
accompanying documentation to or on behalf of the U.S. Government, it shall be
made subject to "Restricted Rights", as that term is defined in the Federal
Acquisition Regulations ("FARs") in paragraph 52.227-19(c)(2), or its equivalent
paragraph in the DOD Supplement to the FARs. Contractor/Manufacturer is: Sun
Microsystems Inc., 2550 Garcia Ave., Mountain View, CA 94043.
11.6 Governing Law. This Agreement is made under and shall be governed by
and construed under the laws of the State of California, regardless of its
choice of laws provisions.
11.7 Compliance with Laws. The Technology, including technical data, is
subject to U.S. export control laws, including the U.S. Export Administration
Act and its associated regulations, and may be subject to export or import
regulations in other countries. Licensee agrees to comply strictly with all such
regulations and acknowledges that it has the responsibility to obtain such
licenses to export, re-export or import the Technology or Product(s) as may be
required after delivery to Licensee.
Licensee shall make reasonable efforts to notify and inform its employees
having access to the Technology of Licensee's obligation to comply with the
requirements stated in this Section.
11.8 Disclaimer of Agency. Licensee is not authorized to make any
representation or warranty on behalf of Sun to its end users or third parties.
The relationship created hereby is that of licensor and licensee and the parties
hereby acknowledge and agree that nothing herein shall be deemed to constitute
Licensee as a franchisee of Sun. Licensee hereby waives the benefit of any state
or federal statutes dealing with the establishment and regulation of franchises.
11.9 Delivery. As soon as practicable after the Effective Date, Sun shall
deliver to Licensee one (1) copy of each of the deliverables set forth in
Exhibit A. Licensee acknowledges that certain of the deliverables are in various
stages of completion and agrees to accept the deliverables as and to the extent
completed as of the date of delivery and "AS IS." In the event any deliverable
is already in the possession or custody of Licensee, such item(s) shall, to the
extent used in connection with the rights granted in Section 2.0 above, be
subject to the terms of this Agreement, notwithstanding any pre-existing
agreement or understanding between Licensee and Sun with respect to such items.
11.10 Assignment and Change in Control. This Agreement may not be assigned
by either party without the prior written consent of the other party, except
that Sun may assign this Agreement to a majority-owned subsidiary.
11.11 Construction. This Agreement has been negotiated by Sun and Licensee
and by their respective counsel. This Agreement will be fairly interpreted in
accordance with its terms and without any strict construction in favor of or
against either party.
*Confidential Treatment Requested
<PAGE>
11.12 Force Majeure. Except for the obligation to pay money, neither party
shall be liable to the other party for non-performance of this Agreement, if the
non-performance is caused by events or conditions beyond that party's control
and the party gives prompt notice under Section 11.1 and makes all reasonable
efforts to perform.
11.13 Exhibits. The following are incorporated herein by reference as
integral parts of this Agreement:
Exhibit A- Description of Technology and Documentation
Exhibit B- Identification of Licensee Product(s) and Field(s) of Use
Exhibit C- Schedule of Fees and Royalties
Exhibit D- Confidential Disclosure Agreement
Exhibit E- Document Type Definition
Exhibit F- Trademark License
Exhibit G- Support Escalation Procedures
Exhibit H- Approved Licensee Modifications to Shared Part
11.14 Section References. Any reference contained herein to a section of
this Agreement shall be meant to refer to all subsections of the section.
11.15 No Competitive Restrictions. The Parties agree that nothing in this
Agreement is intended to prohibit Licensee from independently developing or
acquiring technology that is the same as or similar to the Technology, provided
that Licensee does not do so in breach of its obligations under this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives.
<TABLE>
<CAPTION>
Sun Microsystems; Inc. Licensee
<S> <C>
By: /s/ Alan Baratz By: /s/ Doug G. Pollack
Name: ALAN BARATZ Name: DOUG G. POLLACK
(Print or Type) (Print or Type)
Title: President Title: Vice President, Marketing
Date: August 7, 1996 Date: July 25, 1996
</TABLE>
*Confidential Treatment Requested
<PAGE>
EXHIBIT A
DESCRIPTION OF TECHNOLOGY AND DOCUMENTATION
To the extent that Sun has not already delivered any of the following
listed items to Licensee as of the Effective Date of the Agreement to which this
Exhibit A is attached, Sun shall deliver each of the following items to Licensee
under the terms of the Agreement.
I. Technology: Java Applet Environment
The Java Applet Environment consists of the following source code:
a. All the java files from the following Java packages:
java.lang Language Classes
java.io Stream I/O
java.net Networking Classes
java.util General utilities
java.applet Applet Classes
java.awt Abstract Window Toolkit
java.awt.image Image Handling Classes
java.awt.peer Implementation Classes for awt
b. The Source Code for the Java Runtime Interpreter consisting of the
Shared Part and the Platform-Dependent Part.
II. Technology: Java Compiler
The Java Compiler consists of the following source code:
java.tools.asm Assembler
java.tools.debug Debugging Classes
java.tools.java Parser helper Classes
java.tools.javac Compiler
java.tools.javadoc Documentation Generator
java.tools.tree Parse Tree Classes
java.tools.tty TTY Access to the Debugger
*Confidential Treatment Requested
<PAGE>
EXHIBIT B
IDENTIFICATION OF LICENSEE PRODUCTS(S) AND FIELD(S) OF USE
Product(s): Product known by internal code name "JavaStone".
Field of Use: XXXX
*Confidential Treatment Requested
<PAGE>
EXHIBIT C
SCHEDULE OF FEES AND ROYALTIES
Licensee shall pay to Sun the fees and royalties specified below for the
Technology:
License Fee: $XXXX for the first platform, payable $XXXX within thirty days
of the Effective Date, $XXXX per quarter thereafter, for the next three calendar
quarters.
$XXXX for each additional currently available platform selected by
Licensee.
Java Applet Environment:
Per Unit Royalty: a per copy royalty of $XXXX for each licensed user of the
Products(s) distributed by or for Licensee.
Java Compiler:
Per-Unit Royalty: a per copy royalty of $XXXX for each licensed user of the
Product(s) distributed by or for Licensee.
Updates and Support Fees:
For the XXXX $XXXX for Primary Support, payable in equal quarterly
payments.
In Subsequent Years, at Licensee's option on an annual basis
$XXXX per year for Primary Support, payable in equal quarterly payments, or
$XXXX per year for the Updates and Bug Reporting only, payable in equal
quarterly payments.
Where such versions are not complete as of the Effective Date, the fee
covers the first commercial version shipped by Sun for that platform. The fees
and royalties specified herein are cumulative.
The fees specified in this Agreement are solely for the platforms
identified below: (check applicable platforms)
SPARC/Solaris XX ____
Win32/Intel____________
MacOS (68K,Power PC) ____________
*Confidential Treatment Requested
<PAGE>
EXHIBIT D
CONFIDENTIAL DISCLOSURE AGREEMENT
(to be attached)
*Confidential Treatment Requested
<PAGE>
BI-LATERAL CONFIDENTIAL DISCLOSURE AGREEMENT
Effective Date: ______ 14, 1996
Sun Microsystems, Inc., by and through its JavaSoft business unit, ("Sun");
and GemStone Systems, Inc. ("Party") agree that:
1. a) The information disclosed under this Agreement ("Information")
includes the following:
Sun Information: JavaSoft technology, business and technical information
relating to JavaSoft products, JavaSoft product licensing practices and fees,
research and development plans, customers, and marketing and future business
plans:
<TABLE>
<S> <C>
Party Information: GemStone Java & Internet-related development plans
(If not filled in by Party, then no Party information
is to be disclosed)
</TABLE>
b) Information may be used solely for the purpose of evaluating business
opportunities between the parties.
2. This Agreement covers only information which is disclosed between the
Effective Date and twelve (12) months thereafter. Each party's obligations
regarding information expire three (3) years after the date of disclosure
(except for Sun source code, which shall be protected in perpetuity).
Information shall be used solely as permitted above, and shall not be disclosed
to a third party other than a subsidiary, agent, or subcontractor of the
receiving party who has agreed to be bound by the terms of this Agreement. Each
party shall protect information of the other party using the same degree of
care, but no less than a reasonable degree of care, as such party uses to
protect its own confidential information. Upon termination of this Agreement or
the disclosing party's written request, the receiving party shall cease use of
information and return or destroy all information.
3. Each party shall be obligated to protect only information: (a) disclosed
in tangible form clearly labeled as confidential or proprietary at the time of
disclosure; or (b) disclosed in non-tangible form, identified as confidential or
proprietary at the time of disclosure, and summarized in writing, designated as
confidential or proprietary, and delivered to the other party within thirty (30)
days after disclosure.
4. This Agreement imposes no obligation upon the receiving party with
respect to information which: (a) was in the possession of, or was known by, the
receiving party prior to its receipt from the disclosing party, without an
obligation to maintain its confidentiality; (b) is or becomes generally known to
the public without violation of this Agreement; (c) is obtained by the receiving
party from a third party, without an obligation to keep such information
confidential; or (d) is independently developed by the receiving party without
use of information. Disclosure of the other party's information is not
prohibited if prior notice is given to the other party and such disclosure is:
(a) compelled pursuant to a legal proceeding, or (b) otherwise required by law.
5. Information is provided "AS IS", and all representations and warranties,
express or implied, including fitness for a particular purpose, merchantability,
and noninfringement, are hereby disclaimed. Neither party has an obligation to
sell or purchase any item from the other party. Except for breaches relating to
Sun source code, neither party shall be liable for any special, incidental,
consequential or punitive damages by reason of any alleged breach of this
Agreement based on any theory of liability. Nothing in this Agreement shall be
construed as a representation that the receiving party will not develop or
acquire information that is the same as or similar to Information, provided that
the receiving party does not do so in breach of this Agreement. The receiving
party agrees that any breach of this Agreement may result in irreparable harm to
the disclosing party for which damages would be an inadequate remedy and,
therefore, in addition to its rights and remedies otherwise available at law,
the disclosing party shall be entitled to equitable relief, including
injunction, in the event of such breach. The receiving party does not acquire
any rights in information, except the limited right to use information as
described above.
6. This Agreement constitutes the entire agreement between the parties
concerning its subject matter. All additions or modifications to this Agreement
must be made in writing and must be signed by an authorized representative of
each party. The parties agree to comply strictly with all applicable export
control laws and regulations. Any action related to this Agreement will be
governed by California law, excluding choice of law rules.
*Confidential Treatment Requested
<PAGE>
SUN MICROSYTEMS, INC., by and through PARTY: GemStone Systems, Inc.
JAVASOFT
BY: /s/ Mike Clary BY: /s/ Douglas G. Pollack
NAME: Mike Clary NAME: Douglas G. Pollack
TITLE: Director-Sales & Business TITLE: VP, Marketing
Development
*Confidential Treatment Requested
<PAGE>
EXHIBIT E
DOCUMENT TYPE DEFINITION
In order to ensure interoperability between all Java compliant browsers,
Sun needs to define the exact notation of applets in HTML documents. The format
of the APPLET tag is chosen to be implementation language independent and SGML
compliant. SGML compliance is important if the APPLET tag is to be accepted as
part of the HTML standard in the future.
(Note - Open brackets [ ] represent the "<" and ">" symbol.
Example:
[applet codebase="http://java.sun.com/people/avh/classes"
code="BounceItem.java" width=400 height=300]
[/applet]
The applet tag has the following attributes:
<TABLE>
<CAPTION>
<S> <C>
CODEBASE The base url of the applet. The applet's code is located relative to this URL. If this
attribute is not specified, it defaults to the document's URL.
CODE The file in which the applet is located. This file is relative to base url of the
applet. It cannot be absolute.
ALT Alternate text which can be displayed by text only browsers.
NAME The symbolic name of the applet. This name can be used by applets in the same page to
locate each other.
WIDTH Required attribute which specifies the initial width of the applet in pixels.
HEIGHT Required attribute which specifies the initial height of the applet in pixels.
ALIGN The alignment of the applet, similar to the img tag.
VSPACE The vertical space around the applet, similar to the img tag.
HSPACE The horizontal space around the applet, similar to the img tag.
</TABLE>
Note that the position of the applet in the page is determined by the
width, height, align, vspace and hspace attributes just like the img tag.
Applets can access the above attributes using the getParameter() method
call defined in the Applet class. All attribute/parameter names are
automatically folded to lower case. Applets that require parameters in addition
to the predefined ones need to use the param tag. It is unfortunately not legal
in SGML for a tag to have an arbitrary list of attributes. That is why
additional applet parameters explicitly using the PARAM tag have to be named.
For example:
[applet code="DateItem.class" alt="The Date" width=200 height=40]
[param name="speaker" value="avh"]
[param name="translator" value="DutchTime"]
[/applet]
In addition to the ALT tag, Licensee can include additional text and markup
before the applet end tag. Java compliant browsers will ignore this text, but
browsers that do not understand the applet tag will display it instead of the
applet. For example:
[applet codebase=classes code=ImageLoop.class width=100 height=100]
[param name=imgs value="images/duke]
*Confidential Treatment Requested
<PAGE>
If Licensee were using a Java enabled browser, Licensee would see an
animation instead of this static image. [p]
[img src=images/duke/T1.gif"]
[/applet]
Below is the formal SGML DTD for the APPLET and PARAM tags.
[!ELEMENT APPLET - (PARAM*, (%text;)*)]
[!ATTLIST APPLET
CODEBASE CDATA #IMPLIED - code base -
CODE CDATA #REQUIRED - code file -
ALT CDATA #IMPLIED - alternative string -
NAME CDATA #IMPLIED - the applet name -
HEIGHT NUMBER #REQUIRED
ALIGN
(left|right|top|texttop|middle|absmiddle|baseline|bottom|absbottom) baseline
VSPACE NUMBER #IMPLIED
HSPACE NUMBER #IMPLIED
]
[!ELEMENT PARAM -- O EMPTY]
[!ATTLIST PARAM
NAME NAME #REQUIRED - The name of the parameter -
VALUE CDATA #IMPLIED - The value of the parameter -
>
*Confidential Treatment Requested
<PAGE>
EXHIBIT F
TRADEMARK LICENSE
JAVA-COMPATIBLE LOGO
LICENSOR
SUN MICROSYSTEMS, INC.
2550 Garcia Avenue
Mountain View, CA 94303
U.S.A.
(415) 960-1300
LICENSEE
*Confidential Treatment Requested
<PAGE>
TRADEMARK LICENSE
The following terms and conditions governing Java compatibility branding
and trademarks generally ("License") are incorporated by reference into the
Technology License and Distribution Agreement ("TLDA") between Sun and Licensee,
attached hereto. Where this License is more specific than or inconsistent with
the TLDA, the terms of this License shall govern. Otherwise the TLDA shall
apply. The parties agree that:
1. DEFINITIONS
1.1. "Branded Product" means all online software or tangible copies or
units of any version of Licensee's Products being distributed in association
with any Compatibility Logo.
1.2. "Compatibility Logo" means the Java-compatible logo supplied by Sun to
Licensee from time-to-time. The current version of the logos are depicted at the
end of this License.
1.3. "Licensee's Products" means only the products described in Exhibit B
of the TLDA.
2. GRANT OF LICENSE
Sun grants to Licensee a non-exclusive, non-transferable, personal,
paid-up, royalty-free license, within the Territory in Section 3, to use the
Compatibility Logos ("License") as provided herein with respect to each of
Licensee's Products that fully meet the certification requirements of Section 4.
Licensee is granted no other right, title, or license to the Compatibility Logos
or any other Sun trademark, and is specifically granted no right or license to
sublicense the Compatibility Logos or any other Sun trademarks. This License
shall apply and pass through to Licensee's distributors who distribute
Licensee's Products as transferred by Licensee (i.e., without any modifications
to the Product, product packaging, documentation or other materials)
("Distributors"). Licensee shall provide notice of this License to and enforce
its terms with Distributors. Sun shall be entitled to enforce the terms of this
License directly against any Distributor in the event Licensee fails to do so.
All subsequent references herein to "Licensee" shall include and apply to
"Distributors".
3. TERRITORY
Licensee shall not use any Compatibility Logo on or in Licensee's Products
distributed via tangible media (e.g., CD or diskettes) or on any other tangible
materials (e.g., user documentation) in countries other than those listed below
("Territory"), unless Sun expressly agrees in writing beforehand to extend the
Territory (which Sun may refuse to do in its sole discretion). This territorial
restriction shall not apply to on-line distribution of Licensee's Products over
the Internet. Licensee shall pay all costs, including fees for legal services,
registrations, recordals, and foreign language translations associated with any
extension of the Territory requested by Licensee. Sun may eliminate any country
from the Territory if it determines in its sole judgment that use or continued
use of the Compatibility Logo in such country may subject Sun or any third party
to legal liability, or may jeopardize the Compatibility Logos or any Sun
trademark in that or any other country. In such event, Licensee shall promptly
cease all use of the Compatibility Logos in such countries upon written notice
from Sun.
*Confidiential Treatment Requested
<PAGE>
Australia
Austria
Belgium
Benin
Netherlands
Luxembourg
Brazil
Burkino Faso
Cameroon
Canada
Central African Republic
Chad
Chile
China (P.R.C)
Columbia
Congo
Czech Republic
Denmark
Egypt
France
Gabon
Germany
Greece
Guinea
Hong Kong
Hungary
India
Indonesia
Israel
Italy
Ivory Coast
Japan
Mali
Malaysia
Mauritania
Mexico
New Zealand
Niger
Norway
Philippines
Portugal
Russia
Senegal
Singapore
South Korea
Spain
Sweden
Switzerland
Taiwan
Thailand
Togo
Turkey
Ukraine
UAE
U.K.
United States
Venezuela
*Confidential Treatment Requested
<PAGE>
4. CERTIFICATION
License applies only to versions of Licensee's Products that have
successfully passed the relevant Test Suites made available by Sun to Licensee
pursuant to the TLDA, and which otherwise fully comply with all other
compatibility and certification requirements of the TLDA. Upon thirty (30) days
written notice by Sun no more than two (2) times per calendar year, Licensee
shall permit Sun to inspect and test any Branded Products at a
mutually-agreeable location to ensure that they meet the compatibility
requirements of the TLDA. Upon request by Sun, Licensee shall promptly make any
modifications to any version of a Branded Product necessary for it to meet such
compatibility requirements.
5. LOGO AND TRADEMARK USAGE
Licensee shall use the Compatibility Logos only as specified in any
guidelines or policies made by Sun concerning the appearance, placement or use
of the Compatibility Logo ("Logo Guidelines"). Licensee shall: (i) use only
approved logo artwork provided by Sun, (ii) for tangible media, display the
Compatibility Logos on external product packaging, documentation, and media
(disk, CD-ROM, tape, etc.); (iii) for online versions of Licensee's Product,
display the Compatibility Logos on web pages featuring information about the
Product in GIF images that point to the current Sun Java page
(http://java.sun.com) via hypertext link; (iv) for both tangible-media and
online versions, display the Compatibility Logos on "splashscreens" appearing
upon launch of Licensee's Product, if any, and in general product information
screens (e.g., "About", "Help", "Info"); (v) display the Compatibility Logos on
tangible marketing collateral featuring Licensee's Products, including
advertisements and datasheets; and (vi) not display Compatibility Logos more
prominently or larger than Licensee's company name/logo and product name/logo,
wherever displayed.
Licensee shall comply with the current versions of the Sun Trademark & Logo
Policies and the Java/HotJava Trademark Guidelines [http://java.
sun.com/tm_guidelines.html], including but not limited to using the Java/HotJava
mark as an adjective followed by generic descriptors, marking the Java/HotJava
mark with a (TM) symbol, and attributing the Java/Hot Java mark as a trademark
of Sun Microsystems, Inc. in a legend on packaging, splashscreens, web page, and
other collateral and materials. Licensee may not include any Sun trademark
(e.g., Sun, Java, HotJava, Solaris, etc.) in Licensee's company, business or
subsidiary names, or in the name of any of Licensee's products, services,
technologies, or web pages. Licensee shall promptly modify any usage and any
material that does not conform to the Logo Guidelines, the Sun Trademark & Logo
Policies, or the Java/HotJava Trademark Guidelines upon notice from Sun
specifying the non-conformance. Licensee shall notify its distributors and
customers of any such non-conformance as to materials or products already
distributed, as may be reasonably requested by Sun.
6. PROTECTION OF TRADEMARKS AND LOGOS
Sun is the sole owner of the Compatibility Logos (including the marks
depicted therein) and all goodwill associated therewith. Licensee's use of the
Compatibility Logos inures solely to the benefit of Sun. Licensee shall not do
anything that might harm the reputation or goodwill of the Compatibility Logos.
Licensee shall not challenge Sun's rights in or attempt to register the
Compatibility Logos, or any other name or mark owned by Sun or substantially
similar thereto. Licensee shall take no action inconsistent with Sun's rights in
the Compatibility Logos. If at any time Licensee acquires any rights in, or
registrations or applications for, the Compatibility Logos by operation of law
or otherwise, it will immediately upon request by Sun and at no expense to Sun,
assign such rights, registrations, or applications to Sun, along with any and
all associated goodwill. Licensee shall assist Sun to the extent reasonably
necessary to protect and maintain the Compatibility Logos worldwide, including
but not limited to giving prompt notice to Sun of any known or potential
infringement of the Compatibility Logos, and cooperating with Sun in the
preparation and execution of any documents necessary to record this License as
may be required by the laws or rules of any country. Sun may at its option
commence, prosecute or defend any action or claim concerning the Compatibility
Logos in the name of Sun or Licensee, or join Licensee as a party thereto. Sun
shall have the right to control any such litigation. Licensee shall not commence
any action regarding the Compatibility Logos. Sun shall reimburse Licensee for
the reasonable costs associated with providing such assistance, except to the
extent that any such costs result from a breach of the License by Licensee.
*Confidential Treatment Requested
<PAGE>
IN WITNESS WHEREOF, the parties hereby execute this Agreement through the
authorized representatives whose names appear below
SUN MICROSYSTEMS, INC. LICENSEE
By:/s/ Alan Baratz By: /s/ Doug G. Pollack
- --------------------- ---------------------------
Name: Alan Baratz Name: Doug G. Pollack
Title: President Title: Vice President, Marketing
Date: August 07, 1996 Date: July 25, 1996
COMPATIBILITY LOGOS LICENSED HEREUNDER
*Confidential Treatment Requested
<PAGE>
EXHIBIT G
SUPPORT ESCALATION PROCEDURES
Severity Description:
1) Heavy System Impact: System is down, user is unable to function or
complete work. This includes a non-isolated, consistently reproducible problem
resulting in a system crash or problem preventing and/or delaying Licensee's
marketing of Products(s).
Response: If consistently reproducible in the Technology as delivered by
Sun, Sun will acknowledge the problem and within one (1) business day begin to
work upon a solution, provided that Licensee has provided all necessary
information. Otherwise, Sun will acknowledge the problem and within two (2)
business days begin to work upon a solution, provided that the problem can be
reproduced and Licensee has provided all necessary information.
2) Moderate System Impact: Causes a loss of a product's major function, but
not all of its functionality. This covers problems which must be corrected but
progress is not prevented but immediate attention is not required. This includes
an isolated, reproducible problem resulting in a system crash or the failure of
a significant utility or problem delaying Licensee's development schedule.
Response: Sun will acknowledge the problem and within three (3) business
days begin to work upon a solution, provided that the problem can be reproduced
and Licensee has provided all necessary information.
*Confidential Treatment Requested
<PAGE>
EXHIBIT H
XXXX
*Confidential Treatment Requested
<PAGE>
AMENDMENT 1 TO
TECHNOLOGY LICENSE AND DISTRIBUTION AGREEMENT
This Amendment to that Technology License and Distribution Agreement (the
"Agreement") dated July 18, 1996 between Sun Microsystems, Inc., acting by and
through its JavaSoft business unit ("Sun") with its principal place of business
at 2550 Garcia Avenue, Mountain View, California 94043 and GemStone Systems,
Inc., an Oregon corporation with its principal place of business at 15400 N.W.
Greenbrier Parkway, Suite 280, Beaverton, OR 97006 ("Licensee").
RECITALS
WHEREAS Sun wishes to license additional elements of its Java (TM)
technology, while maintaining compatibility among Java [tm] language-based
products; and
WHEREAS Licensee wishes to develop and distribute products based upon
additional elements of Sun's Java technology;
NOW THEREFORE, Sun and Licensee enter into this Amendment to the Agreement
on the following terms:
1.0 EXHIBITS
1.1. Original Exhibit C of the Agreement is replaced by Exhibit C* hereto.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by their duly authorized representatives.
Sun Microsystems, Inc. Licensee
By: /s/ Lee Patch By: /s/ Douglas G. Pollack
Name: Lee Patch Name: Douglas G. Pollack
(Print or Type) (Print or Type)
Title: Vice President Title: Vice President, Marketing
Date: 11/19/96 Date: 11/18/96
*Confidential Treatment Requested
<PAGE>
EXHIBIT C*
SCHEDULE OF FEES
Licensee shall pay to Sun the fees and royalties specified below for the
Technology:
License Fee: $XXXX for the first platform, payable $XXXX within thirty days
of the Effective Date, $XXXX per quarter thereafter, for the next three calendar
quarters.
$XXXX for each additional currently available platform selected by
Licensee.
Java Applet Environment: Per Unit Royalty: a per copy royalty of $XXXX for
each licensed user of the Product(s) distributed by or for Licensee. Java
Compiler: Per Unit Royalty: a per copy royalty of $XXXX for each licensed user
of the Product(s) distributed by or for Licensee.
Updates and Support Fees:
For the XXXX $XXXX for Primary Support, payable in equal quarterly
payments.
In Subsequent Years, at Licensee's option on an annual basis
$XXXX per year for Primary Support, payable in equal quarterly payments, or
$XXXX per year for Updates and Bug Reporting only, payable in equal
quarterly payments.
Where such versions are not complete as of the Effective Date, the fee
covers the first commercial version shipped by Sun for that platform. The fees
and royalties specified herein are cumulative.
The fees specified in this Agreement are solely for the platforms
identified below: (check applicable platforms)
SPARC/Solaris ______XX_____
Win32/Intel ______XX_____
MacOS (68K, PowerPC) _____________
*Confidential Treatment Requested
<PAGE>
AMENDMENT 2 TO
TECHNOLOGY LICENSE AND DISTRIBUTION AGREEMENT
This Amendment 2 to that Technology License and Distribution Agreement (the
"Agreement") dated July 18, 1996 between Sun Microsystems, Inc., acting by and
through its JavaSoft business unit ("Sun") with its principal place of business
at 2550 Garcia Avenue, Mountain View, California, 94043 and GemStone Systems,
Inc., an Oregon corporation with its principal place of business at 20575 N.W.
von Neumann Drive, Beaverton, OR 97006 ("Licensee").
RECITALS
WHEREAS the parties desire to modify the basis upon which royalties will be
paid to Sun under the Agreement;
NOW THEREFORE, Sun and Licensee enter into this Amendment 2 to the
Agreement on the following terms:
1.0 Exhibits
1.1 Exhibit C* of the Agreement is replaced by Exhibit C** hereto.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by their duly authorized representatives.
Sun Microsystems, Inc. Licensee
By: /s/ Alan Baratz By: /s/ Bryan Grummon
Name: Alan Baratz Name: Bryan Grummon
(Print or Type) (Print or Type)
Title: President, JavaSoft Title: President/CEO
Date: 2/13/98 Date: 2/23/98
*Confidential Treatment Requested
<PAGE>
EXHIBIT C**
SCHEDULE OF FEES
Licensee shall pay to Sun the fees and royalties specified below for the
Technology:
License Fee $XXXX for the first platform, payable $XXXX within thirty days
of the Effective Date, $XXXX per quarter thereafter, for the next three calendar
quarters.
$XXXX for each additional currently available platform selected by
Licensee.
Java Applet Environment:
Per Unit Royalty:
(i) a per copy royalty of $XXXX for each licensed user of the Products
distributed by or for Licensee; or
(ii) XXXX
Java Compiler:
Per Unit Royalty: a per copy royalty of $XXXX for each licensed user of the
Product(s) distributed by or for Licensee.
Updates and Support Fees:
For the XXXX $XXXX for Primary Support, payable in equal quarterly
payments.
In Subsequent Years, at Licensee's option on an annual basis
$XXXX per year for Primary Support, payable in equal quarterly payments, or
$XXXX per year for Updates and Bug Reporting only, payable in quarterly
payments.
Where such versions are not complete as of the Effective Date, the fee
covers the first commercial version shipped by Sun for that platform. The fees
and royalties specified herein are cumulative.
The fees specified in this Agreement are solely for the platforms
identified below: (check applicable platforms)
SPARC/Solaris_________XX_________
Win32/Intel _________XX_________
MacOS (68K,PowerPC)______________
*Confidential Treatment Requested
<PAGE>
AMENDMENT NO. 3 TO
TECHNOLOGY LICENSE AND DISTRIBUTION AGREEMENT
This Amendment No. 3 (the "Amendment") to the Technology License and
Distribution Agreement dated July 18, 1996 (the "Agreement") by and between Sun
Microsystems, Inc., acting by and through its Java-Soft business unit ("Sun"),
and Gemstone Systems, Inc., ("Licensee") is entered into this 9th day of
January, 1998 (the "Effective Date") by and between the same parties.
RECITALS
WHEREAS the parties have previously entered into this Agreement concerning
the license of certain Java technologies and now wish to amend the Agreement so
as to extend its terms to additional Java technology;
NOW, THEREFORE, Sun and Licensee enter into this Amendment on the following
terms:
1.0 DEFINITIONS
Section 1.0 - Definitions of the Agreement is amended by the restatement of
the terms "Shared Part" and "Technology" and by the addition of a new subsection
1.19 as follows:
1.14 "Shared Part" means those Source Code files (and corresponding binary
code) of the Technology which are identified as "shared" (or words of similar
meaning) or which are in any "share" directory or subdirectory thereof.
1.16 "Technology" means the JAE, the Java Compiler, the Hot Spot Premium
Components as set forth in Exhibit C-10 hereto, and Updates to the extent that
Licensee is entitled to receive them hereunder.
1.19 "Java Test Suites" means the applicable test suites associated with
each Technology, as may be revised by Sun during the Term.
2.0 LICENSE GRANTS
Section 2.0 - LICENSE GRANTS of the Agreement is amended by extending the
licenses (and corresponding obligations) set forth therein to the Hot Spot
Premium Components, except that such licenses are granted only for the Field of
Use set forth in Exhibit C-10 and to the extent such Exhibit sets forth
additional or different terms concerning the Hot Spot Premium Components such
terms shall govern.
*Confidential Treatment Requested
<PAGE>
EXHIBITS
With respect to the Hot Spot Premium Components, the original Exhibits A
and C of the Agreement are replaced by the attached Exhibit C-10.
IN WITNESS WHEREOF, the parties have caused this Amendment to the Agreement
to be executed by their duly authorized representatives.
Sun Microsystems, Inc. Licensee
By:/s/ Alan Baratz By: /s/Bryan Grummon
Name: Alan Baratz Name: Bryan Grummon
(Print or Type) (Print or Type)
Title: President, JavaSoft Title: President/CEO
Date: 2/13/98 Date: 2/23/98
*Confidential Treatment Requested
<PAGE>
EXHIBIT C-10
HOT SPOT PREMIUM COMPONENTS
I. Description of Technology and Documentation
The Hot Spot Premium Components ("Optimizer"), which are not yet available,
are expected to consist of the following components:
a. Hot Spot XXXX
b. The Source Code for the Java Runtime Interpreter which implements the
Java Virtual Machine, consisting of the Shared Part, identified as those files
which are in any "share" directory or subdirectory thereof, and the
Platform-Dependent Part, identified as other files which are compiled with the
"share" files to produce the Runtime Interpreter program.
c. Documentation:
Java OEM Language Specification
Java OEM API Specification
Java OEM Virtual Machine Specification
Documentation for Optimizer if and as provided by Sun
II. Field(s) of Use: Licensee's Gemstone/J family of products
III. Products List: XXXX
IV. Schedule of Fees and Royalties
A. Upfront Source License Fee:
For the first two OS/CPU platforms specified below XXXX
For each additional OS/CPU platform $XXXX
Beginning April 1, 1998, the Upfront Source License Fee shall entitle
Licensee to have access to the then-current pre-release version of the Optimizer
as well as to any Upgrades to the Optimizer, if any, up to and including but not
beyond the initial FCS release of the Optimizer.
*Confidential Treatment Requested
<PAGE>
*This amount shall be paid in three installment payments as follows;
provided, however, that if Sun does not FCS the Optimizer for the Windows NT/95
platform by June 30, 1998 or for the Solaris/SPARC platform by September 30,
1998, then Licensee may elect, upon giving written notice to Sun at any time
prior to such FCS, to convert Upfront Source License Fee to pre-paid royalties
applicable to JAE-based Products
$XXXX due not later than April 30, 1998;
$XXXX due not later than June 15, 1998
$XXXX due not later than September 15, 1998
OS/CPU Platforms Expected to be Available from Sun:
Windows NT/95 ____x____
Solaris/SPARC ____x____
Solaris/x86 ____x____
B. Porting Assistance and Limited Support and Update Fees:
Porting Assistance (prior approval required)XXXX/year + travel/expenses
Limited Support and Upgrade $XXXX/year**
**This fee shall be paid in equal quarterly installments of $XXXX each,
with the first such installment due not later than June 15, 1998 and with each
subsequent installment due not later than the 15th day of the last month of the
applicable calendar quarter; provided, however, that if Sun does not FCS the
Optimizer for the Windows NT/95 platform by June 30, 1998 or for the
Solaris/SPARC platform by September 30, 1998, then Licensee may elect, upon
giving written notice to Sun at any time prior to such FCS, to apply the Limited
Support and Update Fee paid for the Optimizer to future Support and Update Fees
due with respect to JAE. The staggered nature of the payments specified in this
Section IV.B shall not affect Licensee's right to receive any benefits provided
by Sun under its Limited Support and Update program for Optimizer (e.g. access
to pre-release code to the extent such code is also made available to other
licensees).
C. Binary Distribution Royalties per unit or concurrent user: not
applicable
V. Supplemental License Terms and Compatibility Requirements
A. Notwithstanding Section 2.2b or any other provision of the Agreement,
the Binary Code Distribution License set forth in Section 2.2b shall not be
effective, and Licensee may not sublicense or distribute the Hot Spot Premium
Components or any Products or other Derivative Works thereof in binary form to
any third party except for Derivative Works which implement or integrate a
FCS-level release of the Hot Spot Premium Components.
B. Products must pass the Java Test Suites for the Java Application
Environment pursuant to the requirements of Section 2.4, including compatability
with any standard JAE extensions which Licensee elects to distribute with
Products. Licensee may self-certify such compatibility unless Sun policy
requires verification of compatibility by an independent test facility
designated by Sun, at Licensee's expense. XXXX
C. XXXX
VI. Compatibility Logo
XXXX
VII. Description of Support and Updates During the full term of this
Agreement, Licensee shall contract for Limited Support as specified below. In
addition, Licensee may, subject to Sun's prior approval, contract for Porting
Assistance as specified below.
Limited Support and Updates. Subject to payment of the fees specified
above, Licensee shall have access to Updates of the Optimizer subsequent to its
initial FCS release, if any, and to the JavaSoft bug tracking database via Sun's
TLDA Licensee web site, and Licensee shall be included on Sun's TLDA Licensee
general support alias. Licensee shall be assigned a primary point of contact in
the JavaSoft engineering support organization to provide email, facsimile and
telephone support (during regular business hours Pacific Standard Time) solely
for the purpose of providing available information regarding bugs identified in
the Technology by Licensee, and provided that Licensee must first consult the
JavaSoft bug tracking database for possible resolution. In no event shall
Licensee's payment of the Limited Support and Upgrade Fee be understood to
obligate Sun to develop or make generally available for release any Upgrades to
the Optimizer.
*Confidential Treatment Requested
<PAGE>
Porting Assistance. [tbd]
VIII. End user License Terms
For Products distributed pursuant to a software license agreement to end
users, Licensee shall include the following terms and conditions (or terms and
conditions substantially similar in form and content). Licensee shall substitute
Licensee's name in place of Sun in each instance where it occurs in the
following text.
Restrictions. Software is confidential copyrighted information of Sun and
title to all copies is retained by Sun and/or its licensors. Customer shall not
modify, decompile, disassemble, decrypt, extract, or otherwise reverse engineer
Software. Software may not be leased, assigned, or sublicensed, in whole or in
part. Software is not designed or intended for use in on-line control of
aircraft, air traffic, aircraft navigation or aircraft communications; or in the
design, construction, operation or maintenance of any nuclear facility. Customer
warrants that it will not use or redistribute the Software for such purposes.
Export Regulations. Software, including technical data, is subject to U.S.
export control laws, including the U.S. Export Administration Act and its
associated regulations, and may be subject to export or import regulations in
other countries. Customer agrees to comply strictly with all such regulations
and acknowledges that it has the responsibility to obtain licenses to export,
re-export, or import Software. Software may not be downloaded, or otherwise
exported or re-exported (i) into, or to a national or resident of, Cuba, Iraq,
Iran, North Korea, Libya, Sudan, Syria or any country to which the U.S. has
embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of
Specially Designated Nations or the U.S. Commerce Department's Table of Denial
Orders.
Restricted Rights. Use, duplication or disclosure by the United States
government is subject to the restrictions as set forth in the Rights in
Technical Data and Computer Software Clauses in DFARS 252.227-7013(c)(1)(ii) and
FAR 52.227-19(c)(2) as applicable.
*Confidential Treatment Requested
