<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 5, 1999
REGISTRATION NO. 333-80051
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
RED HAT, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 7375 06-1364380
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
------------------------
2600 MERIDIAN PARKWAY
DURHAM, N.C. 27713
(919) 547-0012
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------------------------
ROBERT F. YOUNG
Chairman and Chief Executive Officer
Red Hat, Inc.
2600 Meridian Parkway
Durham, NC 27713
(919) 547-0012
(Name, address including zip code, and telephone number, including area code, of
agent for service)
------------------------------
COPIES TO:
<TABLE>
<S> <C>
WILLIAM J. SCHNOOR, JR., ESQ. MARK G. BORDEN, ESQ.
GREGG A. GRINER, ESQ. PATRICK J. RONDEAU, ESQ.
Testa, Hurwitz & Thibeault, LLP Hale and Dorr LLP
125 High Street 60 State Street
Boston, Massachusetts 02110 Boston, Massachusetts 02109
Telephone: (617) 248-7000 Telephone: (617) 526-6000
Telecopy: (617) 248-7100 Telecopy: (617) 526-5000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date hereof.
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, 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,
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 THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
SUBJECT TO COMPLETION. DATED AUGUST 5, 1999.
THE INFORMATION IN THIS PRELIMINARY PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. THESE SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PRELIMINARY
PROSPECTUS IS NOT AN OFFER TO SELL NOR DOES IT SEEK AN OFFER TO BUY THESE
SECURITIES IN ANY JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
6,000,000 Shares
[LOGO]
Common Stock
----------------
This is an initial public offering of shares of Red Hat, Inc. All of the
6,000,000 shares of common stock are being sold by Red Hat. It is currently
estimated that the initial public offering price per share will be between
$10.00 and $12.00.
At the request of Red Hat, the underwriters have reserved up to 800,000
shares of common stock for sale at the initial public offering price through a
directed share program, to directors, officers and employees of Red Hat and to
open source software developers and other persons that Red Hat believes have
contributed to the success of the open source software community and the growth
of Red Hat.
Prior to this offering, there has been no public market for the common
stock. Application has been made for quotation of the common stock on the Nasdaq
National Market under the symbol "RHAT".
SEE "RISK FACTORS" BEGINNING ON PAGE 7 TO READ ABOUT CERTAIN FACTORS YOU
SHOULD CONSIDER BEFORE BUYING SHARES OF THE COMMON STOCK.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER REGULATORY BODY
HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR
ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
------------------------
<TABLE>
<CAPTION>
Per Share Total
-------------------- --------------------
<S> <C> <C>
Initial public offering price................... $ $
Underwriting discount .......................... $ $
Proceeds, before expenses, to Red Hat........... $ $
</TABLE>
If the underwriters sell more than 6,000,000 shares of common stock, the
underwriters have the option to purchase up to an additional 900,000 shares from
Red Hat at the initial public offering price less the underwriting discount.
------------------------
The underwriters expect to deliver the shares against payment in New York,
New York on , 1999.
GOLDMAN, SACHS & CO.
THOMAS WEISEL PARTNERS LLC
HAMBRECHT & QUIST
E*OFFERING
------------------------
Prospectus dated , 1999.
<PAGE>
DESCRIPTION OF INSIDE BACK COVER:
[Graphic Description]
This inside back cover contains the following:
Awards Red Hat has won in the last three years with the graphical
representations or logos of each award. The presentation of the awards is
surrounded by the words "And the Winner is... Red Hat Linux". The Red Hat
"Shadow Man" logo appears above the award presentation.
<PAGE>
DESCRIPTION OF INSIDE FRONT COVER:
[Graphic Description]
This inside front cover contains the following:
A picture of the shrink-wrapped Official Red Hat Linux 6.0 operating system
package. This picture is surrounded by the names of entities which are OEM,
distribution or marketing partners of Red Hat. Below the package appears the
text, "The Revolution of Choice." At the bottom of the page the following text
appears, "Red Hat Linux. Delivering free choice in operating system technology.
Partnering to ensure wide availability of Linux applications and systems." The
Red Hat "Shadow Man" logo appears in the lower right corner of the page.
<PAGE>
PROSPECTUS SUMMARY
YOU SHOULD READ THE FOLLOWING SUMMARY TOGETHER WITH THE MORE DETAILED
INFORMATION AND OUR FINANCIAL STATEMENTS AND NOTES TO THOSE STATEMENTS APPEARING
ELSEWHERE IN THIS PROSPECTUS.
RED HAT
OUR BUSINESS
We are a leading developer and provider of open source software and
services, including the Red Hat Linux operating system. Unlike proprietary
software, open source software has publicly available source code and can be
copied, modified and distributed with minimal restrictions. Our web site,
REDHAT.COM, is a leading online source of information and news about open source
software and one of the largest online communities of open source software users
and developers. In addition to offering extensive content for the open source
community, REDHAT.COM serves as an important forum for open source software
development and offers software downloads and a shopping site. Our broad range
of professional services includes technical support, training and education,
custom development, consulting and hardware certification. We are committed to
serving the interests and needs of open source software users and developers and
to sharing all of our product developments with the open source community.
Red Hat Linux is our principal product. Since its introduction in 1994, we
believe Red Hat Linux has emerged as the most popular Linux-based operating
system in the world. Red Hat Linux represented approximately 56% of new license
shipments of Linux-based server operating systems in 1998, according to
International Data Corporation. Our web site had 265,000 unique visitors and
approximately 2.5 million page views during March 1999. A unique visitor is an
individual visitor to our REDHAT.COM web site. Page views are the total number
of complete pages retrieved and viewed by visitors to REDHAT.COM. We generated
approximately $10.8 million in revenue for the fiscal year ended February 28,
1999, primarily from the sale of Official Red Hat Linux. Our products are also
generally available via free download from REDHAT.COM and other sites across the
internet, but do not include technical support or printed user documentation in
these instances. Companies with which we have strategic alliances or investment
relationships include Compaq, Dell, IBM, Intel, Netscape, Novell, Oracle, SAP
and Silicon Graphics.
OUR MARKET OPPORTUNITY
The rapid growth of the internet in recent years has accelerated the
development of open source software. Under the open source software model,
software is created through the collaborative efforts of large communities of
independent developers. Developers work alone or in groups to write code, make
the code available over the internet, solicit feedback on it from other
developers, then modify and share it with others for general use. This
continuous process results in the rapid evolution and improvement of open source
software.
We believe open source software offers many potential benefits for software
customers, users and vendors. Customers and users are able to acquire the
software at little or no cost, install the software on as many computers as they
wish, and customize the software to suit their particular needs. In addition,
customers and users can obtain software updates, improvements and support from
multiple vendors, reducing reliance on any single vendor. Vendors are able to
leverage the community of open source developers, allowing them to reduce
development costs and decrease their time to market. Vendors are also able to
distribute their products freely over the internet, enabling them to create
large global user bases quickly.
Open source software is particularly well-suited to the internet and
includes the
3
<PAGE>
following leading internet software and server products:
- Apache Web Server--the most common web server in use today;
- Perl--a standard scripting language for Apache servers; and
- Sendmail--an e-mail routing tool that handles a majority of all e-mail
traffic.
Operating systems based on the Linux kernel are some of the better known
open source products. Linux-based operating systems represented 17% of new
license shipments of server operating systems in 1998, according to
International Data. Despite strong initial market acceptance, these operating
systems have been slow to penetrate large corporations at the enterprise level
due in part to the lack of viable open source industry participants to offer
technical support and other services on a long-term basis.
OUR STRATEGY
We seek to enhance our position as a leading provider of open source
software and services by:
- continuing to enhance our web site to create the definitive online
destination for the open source community;
- expanding our professional services capabilities to capture large
corporate business on an enterprise basis;
- increasing market acceptance of open source software, particularly through
technology alliances and sharing our development efforts and resources
with third-party developers;
- continuing to invest in the development of open source technology; and
- enhancing the Red Hat brand through targeted advertising and public
relations campaigns.
OUR HISTORY
Red Hat, Inc. was incorporated in Connecticut in March 1993 as ACC Corp.,
Inc. In September 1995, ACC Corp., Inc. changed its name to Red Hat Software,
Inc. In September 1998, Red Hat Software, Inc. reincorporated in Delaware. In
June 1999, Red Hat Software, Inc. changed its name to Red Hat, Inc. Unless the
context otherwise requires, any reference to "Red Hat", "we", "our" and "us" in
this prospectus refers to Red Hat, Inc., a Delaware corporation, and its
subsidiaries and predecessors. Our principal executive offices are located at
2600 Meridian Parkway, Durham, N.C. 27713. Our telephone number is (919)
547-0012.
"Red Hat", the Red Hat "Shadow Man" logo, "RPM", and "PowerTools" are
trademarks or service marks of Red Hat, Inc. Other trademarks and tradenames in
this prospectus are the property of their respective owners.
Except as presented in the financial statements or as otherwise specified in
this prospectus, all information in this prospectus:
- assumes no exercise of the underwriters' over-allotment option;
- reflects a 2-for-1 stock split of the common stock which will occur prior
to the closing of this offering; and
- reflects the automatic conversion of all outstanding shares of our
preferred stock into a total of 33,945,452 shares of common stock upon the
closing of this offering.
4
<PAGE>
THE OFFERING
<TABLE>
<S> <C>
Shares offered by Red Hat.................... 6,000,000 shares
Shares to be outstanding after the
offering..................................... 66,835,104 shares
Use of proceeds.............................. To provide working capital and for other
general corporate purposes including
geographic expansion. See "Use of Proceeds".
Proposed Nasdaq National Market symbol....... RHAT
</TABLE>
The number of shares of common stock to be outstanding after the offering is
based on the number of shares outstanding on July 31, 1999. This number does not
include 5,762,188 shares of common stock issuable upon the exercise of stock
options outstanding on July 31, 1999 with a weighted average exercise price of
$2.51 per share or 3,197,450 shares of common stock issuable upon exercise of
warrants outstanding on July 31, 1999 with an exercise price of $.0001 per
share. This number also does not include an aggregate of 8,075,910 shares
reserved as of July 31, 1999 for future stock option grants and purchases under
Red Hat's equity compensation plans. See "Management--Employee Benefit Plans"
and note 11 of notes to financial statements.
5
<PAGE>
SUMMARY FINANCIAL DATA
The following table summarizes the financial data of our business. You
should read this information with the discussion in "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and our financial
statements and notes to those statements included elsewhere in this prospectus.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
YEAR ENDED FEBRUARY 28, MAY 31,
------------------------------------------------------- --------------------
1995 1996(1) 1997 1998 1999 1998 1999
--------- ----------- --------- --------- --------- --------- ---------
(UNAUDITED)
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenue......................................... $ 482 $ 930 $ 2,603 $ 5,156 $ 10,790 $ 1,551 $ 2,797
Net income (loss)............................... (128) (155) 33 8 (91) (53) (2,089)
Net income (loss) available to common
stockholders.................................. (128) (155) 33 8 (130) (53) (2,132)
Earnings (loss) per common share:
Basic......................................... $ (0.01) $ (0.01) $ 0.00 $ 0.00 $ (0.01) $ 0.00 $ (0.09)
Diluted....................................... (0.01) (0.01) 0.00 0.00 (0.01) 0.00 (0.09)
Weighted average common shares outstanding:
Basic......................................... 12,000 22,626 23,500 23,500 23,550 23,500 24,383
Diluted....................................... 12,000 22,626 27,233 34,578 23,550 23,500 24,383
Pro forma earnings (loss) per common share:
Basic......................................... $ (0.01) $ (0.01) $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ (0.04)
Diluted....................................... (0.01) (0.01) 0.00 0.00 0.00 0.00 (0.04)
Pro forma weighted average common shares
outstanding:
Basic......................................... 12,000 22,626 23,500 30,842 43,930 37,103 57,782
Diluted....................................... 12,000 22,626 27,233 34,578 43,930 37,103 57,782
</TABLE>
- ------------------------------
(1) Red Hat's fiscal year ended on February 29, 1996.
The following table presents a summary of our balance sheet at May 31, 1999:
- on an actual basis;
- on a pro forma basis to reflect conversion of all outstanding shares of
our preferred stock into a total of 33,945,452 shares of common stock,
which will occur upon closing of this offering; and
- on a pro forma as adjusted basis to reflect the sale of 6,000,000 shares
of common stock in this offering at an assumed initial public offering
price of $11.00 per share after deducting the estimated underwriting
discount and offering expenses.
<TABLE>
<CAPTION>
MAY 31, 1999
-------------------------------------
PRO FORMA
ACTUAL PRO FORMA AS ADJUSTED
--------- ----------- -------------
(IN THOUSANDS)
<S> <C> <C> <C>
BALANCE SHEET DATA:
Cash and cash equivalents............................... $ 13,982 $ 13,982 $ 74,112
Working capital......................................... 13,217 13,217 73,347
Total assets............................................ 22,162 22,162 82,292
Long-term liabilities................................... 385 385 385
Mandatorily redeemable preferred stock.................. 15,338 -- --
Total stockholders' equity (deficit).................... (196) 15,142 75,272
</TABLE>
6
<PAGE>
RISK FACTORS
THIS OFFERING INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD CAREFULLY CONSIDER
THE RISKS DESCRIBED BELOW AND THE OTHER INFORMATION IN THIS PROSPECTUS BEFORE
DECIDING TO INVEST IN THE SHARES OF COMMON STOCK.
RISKS RELATED TO OUR LINUX-BASED OPEN SOURCE BUSINESS MODEL
OUR BUSINESS MAY NOT SUCCEED BECAUSE OPEN SOURCE SOFTWARE BUSINESS MODELS ARE
UNPROVEN
We have not demonstrated the success of our open source business model,
which gives our customers the right freely to copy and distribute our software.
No other company has built a successful open source business. Few open source
software products have gained widespread commercial acceptance partly due to the
lack of viable open source industry participants to offer adequate service and
support on a long term basis. In addition, open source vendors are not able to
provide industry standard warranties and indemnities for their products, since
these products have been developed largely by independent parties over whom open
source vendors exercise no control or supervision. If open source software
should fail to gain widespread commercial acceptance, we would not be able to
sustain our revenue growth and our business could fail.
OUR RELIANCE ON THE SUPPORT OF LINUS TORVALDS AND OTHER PROMINENT LINUX
DEVELOPERS COULD IMPAIR OUR ABILITY TO RELEASE MAJOR PRODUCT UPGRADES AND
MAINTAIN MARKET SHARE
We may not be able to release major product upgrades of Red Hat Linux on a
timely basis because the heart of Red Hat Linux, the Linux kernel, is maintained
by third parties. Linus Torvalds, the original developer of the Linux kernel and
a small group of independent engineers are primarily responsible for the
development and evolution of the Linux kernel. If this group of developers fails
to further develop the Linux kernel or if Mr. Torvalds or other prominent Linux
developers, such as Alan Cox, David Miller or Stephen Tweedie, were to join one
of our competitors or no longer work on the Linux kernel, we will have to either
rely on another party to further develop the kernel or develop it ourselves. We
cannot predict whether enhancements to the kernel would be available from
reliable alternative sources. We could be forced to rely to a greater extent on
our own development efforts, which would increase our development expenses and
may delay our product release and upgrade schedules. In addition, any failure on
the part of the kernel developers to further develop and enhance the kernel
could stifle the development of additional Linux-based applications.
WE MAY NOT BE ABLE TO EFFECTIVELY ASSEMBLE AND TEST OUR SOFTWARE BECAUSE IT
CONSISTS LARGELY OF CODE DEVELOPED BY INDEPENDENT THIRD PARTIES OVER WHOM WE
EXERCISE NO CONTROL, WHICH COULD RESULT IN UNRELIABLE PRODUCTS AND DAMAGE TO
OUR REPUTATION
Red Hat Linux, in compressed form, consists of approximately 573 megabytes
of code. Of that total, approximately 500 megabytes have been developed by
independent third parties, including approximately 10 megabytes of code
contained in the Linux kernel. Included within the 573 megabytes of code are
approximately 645 distinct software components developed by thousands of
individual programmers which we must assemble and test before we can release a
new version of Red Hat Linux. If these components are not reliable, Red Hat
Linux could fail, resulting in serious damage to our reputation and potential
litigation. Although we attempt to assemble only the best available components,
we cannot be sure that we will be able to identify the highest quality and most
reliable components or to successfully assemble and test them. In addition, if
these components were no longer available, we would have to develop them
ourselves, which
7
<PAGE>
would significantly increase our development expenses.
THE SCARCITY OF SOFTWARE APPLICATIONS FOR LINUX-BASED OPERATING SYSTEMS COULD
PREVENT COMMERCIAL ADOPTION OF OUR PRODUCTS
Our products will not gain widespread commercial adoption until there are
more third-party software applications designed to operate on Linux-based
operating systems. These applications include word processors, databases,
accounting packages, spreadsheets, e-mail programs, internet browsers,
presentation and graphics software and personal productivity applications. We
intend to encourage the development of additional applications that operate on
Linux-based operating systems by attracting third-party developers to the Linux
platform and by maintaining our existing developer relationships through
marketing and technical support for third-party developers. If we are not
successful in achieving these goals, however, our products will not gain
widespread commercial acceptance and we will not be able to maintain our product
sales growth.
WE MAY NOT BE ABLE TO GENERATE REVENUE FROM SALES OF OFFICIAL RED HAT LINUX IF
USERS CAN MORE QUICKLY DOWNLOAD IT FROM THE INTERNET
Anyone can download a free copy of Red Hat Linux from the internet. However,
because this download can take up to 36 hours using a standard telephone
connection, many of our users choose to buy the shrink-wrapped version of
Official Red Hat Linux. If hardware and data transmission technology advances in
the future to the point where increased bandwidth allows users to more quickly
download our products from the internet, users may no longer choose to purchase
Official Red Hat Linux. This could lead to a significant loss of product
revenue.
OUR CUSTOMERS MAY FIND IT DIFFICULT TO INSTALL AND IMPLEMENT RED HAT LINUX,
WHICH COULD LEAD TO CUSTOMER DISSATISFACTION AND DAMAGE OUR REPUTATION
Installation and implementation of Red Hat Linux often involves a
significant commitment of resources, financial and otherwise, by our customers.
This process can be lengthy due to the size and complexity of our products and
the need to purchase and install new applications. The failure by us to attract
and retain services personnel to support our customers, the failure of companies
with which we have strategic alliances to commit sufficient resources towards
the installation and implementation of our products, or a delay in
implementation for any other reason could result in dissatisfied customers. This
could damage our reputation and the Red Hat brand, resulting in decreased
product revenue.
NEGATIVE REACTION WITHIN THE OPEN SOURCE COMMUNITY TO OUR BUSINESS STRATEGY
COULD HARM OUR REPUTATION AND BUSINESS
Some members of the open source software community have criticized the
expansion of our strategic focus in online chat rooms, electronic bulletin
boards and articles posted on the web. These critics argue that our strategy
could fragment the Linux community into a variety of competing factions,
resulting in a less cohesive and cooperative development process. Others have
suggested that by expanding our focus, we are trying to dominate the market for
Linux-based operating systems and the open source community in the same way that
some companies have been able to dominate the traditional software markets. This
type of negative reaction, if widely shared by our customers, developers or the
rest of the open source community, could harm our reputation, diminish the Red
Hat brand and result in decreased revenue.
8
<PAGE>
RISKS RELATED TO OUR FINANCIAL RESULTS AND CONDITION
OUR LIMITED OPERATING HISTORY IN THE NEW AND DEVELOPING MARKET FOR LINUX-BASED
OPERATING SYSTEMS MAKES IT DIFFICULT TO EVALUATE OUR BUSINESS
Red Hat was formed in March 1993. We began offering Red Hat Linux in October
1994. Our limited operating history makes it difficult to evaluate the risks and
uncertainties that we face. Our failure to address these risks and uncertainties
could cause our business results to suffer and result in the loss of all or part
of your investment.
WE EXPECT TO INCUR SUBSTANTIAL LOSSES IN THE FUTURE
We have incurred operating losses in four of our previous five fiscal years,
including our most recent fiscal year ended February 28, 1999. We expect to
incur significant losses at least through the fiscal year ending February 28,
2001 as we substantially increase our sales and marketing, research and
development and administrative expenses. In addition, we are investing
considerable resources in our web initiative. As a result, we cannot be certain
when or if we will achieve sustained profitability. Failure to become and remain
profitable may adversely affect the market price of our common stock and our
ability to raise capital and continue operations. See "Management's Discussion
and Analysis of Financial Condition and Results of Operations--Overview",
"--Results of Operations" and "--Liquidity and Capital Resources".
YOU SHOULD NOT RELY ON OUR QUARTERLY RESULTS OF OPERATIONS AS AN INDICATION OF
OUR FUTURE RESULTS BECAUSE THEY FLUCTUATE SIGNIFICANTLY AND ARE DIFFICULT TO
FORECAST
Due to our limited operating history and the unpredictability of our
business, our revenue and operating results may fluctuate significantly from
quarter to quarter and are difficult to forecast. We base our current and
projected future expense levels in part on our estimates of future revenue. Our
expenses are to a large extent fixed in the short term. We may not be able to
adjust our spending quickly if our revenue falls short of our expectations.
Accordingly, a revenue shortfall in a particular quarter would have a
disproportionate adverse effect on our operating results for that quarter. You
should not rely on quarter-to-quarter comparisons of our results of operations
as an indication of our future performance. Our future operating results may
fall below expectations of securities analysts or investors, which would likely
cause the market price of our common stock to decline significantly. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations--Quarterly Results of Operations".
OUR FAILURE TO UPDATE AND MODERNIZE OUR INTERNAL SYSTEMS, PROCEDURES AND
CONTROLS MAY PREVENT THE IMPLEMENTATION OF OUR BUSINESS STRATEGIES IN A
RAPIDLY EVOLVING MARKET AND MAY RETARD OUR FUTURE GROWTH
Our operational and financial systems, procedures and controls, which are
adequate for a small private company, are becoming outdated as we grow. Since
March 1, 1998, we have more than tripled the number of our employees. To
accommodate this growth, we have evaluated our financial and operational
systems, procedures and controls. Although we have revised and updated most of
them, if we continue our rapid growth, we may not be able to improve our
transaction processing and reporting systems and procedures, or expand and train
our expanding workforce quickly enough to maintain a competitive position in our
markets. In addition, failure to quickly replace obsolete systems, procedures
and controls could impede our management's decision-making abilities. This, in
turn, may impair our ability to pursue business opportunities and may hamper
future growth.
9
<PAGE>
BECAUSE OUR HEADQUARTERS ARE NOT LOCATED IN A MAJOR METROPOLITAN AREA, WE MAY
NOT BE ABLE TO RECRUIT AND RETAIN QUALIFIED PROFESSIONALS, WHO ARE CURRENTLY
IN HIGH DEMAND AND WHOSE NUMBERS ARE LIMITED
We compete intensely with other software companies nation-wide to recruit
and hire from a limited pool of qualified personnel. Because our headquarters
are not located in a major metropolitan area, many qualified candidates may be
unwilling to relocate to North Carolina and work for Red Hat. If we cannot
attract and hire additional qualified sales and marketing, professional services
and software engineering and development personnel, our business results will
suffer.
OUR MANAGEMENT TEAM MAY NOT BE ABLE TO SUCCESSFULLY IMPLEMENT OUR BUSINESS
STRATEGIES BECAUSE IT HAS ONLY RECENTLY BEGUN TO WORK TOGETHER
Our business is highly dependent on the ability of our management to work
together effectively to meet the demands of our growth. Several members of our
senior management, including our President, Matthew Szulik, our Chief Operating
Officer, Tim Buckley and our Chief Marketing Officer, Tom Butta, have been
employed by us for a relatively short period of time. We are also actively
searching for a new Chief Financial Officer and expect to hire one within the
next few months. These individuals have not previously worked together as a
management team. In addition, the members of our management team who have been
with us since 1997 or earlier have had only limited experience managing a
rapidly growing company on either a public or private basis. The failure of our
management team to work together effectively could prevent efficient
decision-making by our executive team, affecting product development and sales
and marketing efforts, which would negatively impact our operating results.
WE COULD LOSE ROBERT YOUNG, MATTHEW SZULIK, TIM BUCKLEY, MARC EWING OR OTHER KEY
PERSONNEL, WHICH COULD PREVENT US FROM EXECUTING OUR BUSINESS STRATEGIES
Our future success depends on the continued services of a number of key
officers, including our Chairman and Chief Executive Officer, Robert Young; our
President, Matthew Szulik; our Chief Operating Officer, Tim Buckley; and our
Executive Vice President and Chief Technology Officer, Marc Ewing. The loss of
the technical knowledge and industry expertise of any of these officers could
seriously impede our success. Moreover, the loss of one or a group of our key
employees, particularly to a competitor, and any resulting loss of customers
could reduce our market share and diminish the Red Hat brand.
WE MAY LACK THE FINANCIAL AND OPERATIONAL RESOURCES NEEDED TO INCREASE OUR
MARKET SHARE AND COMPETE EFFECTIVELY WITH MICROSOFT, OTHER ESTABLISHED
OPERATING SYSTEMS DEVELOPERS AND OTHER SERVICE AND SUPPORT PROVIDERS
In the market for operating systems, we face significant competition from
larger companies with greater financial resources and name recognition than we
have. These competitors, which offer hardware-independent multi-user operating
systems for Intel platforms and/or UNIX-based operating systems, include
Microsoft, Novell, IBM, Sun Microsystems, The Santa Cruz Operation, AT&T,
Compaq, Hewlett-Packard, Olivetti and Unisys. We do not believe that any of
these competitors currently produce and market any open source software
products.
As we increase our services offerings, we may face competition from larger
and more capable companies that currently service and support other operating
systems, particularly UNIX-based operating systems, due to the fact that Linux-
and UNIX-based operating systems share many common features. These companies may
be able to leverage their existing service organizations and provide higher
levels of support on a more cost-effective basis than we can. We may not be able
to compete successfully with these current or potential competitors. See
"Business--Competition".
10
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WE MAY NOT BE ABLE TO MATCH THE PROMOTIONAL ACTIVITIES AND PRICING POLICIES
OFFERED BY OTHER SUPPLIERS OF LINUX-BASED AND OTHER OPEN SOURCE OPERATING
SYSTEMS, WHICH COULD RESULT IN A LOSS OF MARKET SHARE
In the new and rapidly-evolving market for Linux-based operating systems, we
face intense competition from a number of other suppliers of Linux-based
operating systems. We also face competition to a lesser extent from developers
of non-Linux-based open source operating systems such as BSD-based operating
systems. BSD-based operating systems such as FreeBSD, NetBSD and OpenBSD are
open source operating systems produced by communities of developers working
together via the internet, and which are published and distributed by Walnut
Creek CD-ROM, among others. We expect competition in broader open source
operating systems and the Linux-based operating systems market to intensify. In
addition, companies like Sun Microsystems, Corel and Cygnus Solutions, which
have large customer bases and greater financial resources and name recognition
than we do, have indicated a growing interest in the market for Linux-based
operating systems. These companies may be able to undertake more extensive
promotional activities, adopt more aggressive pricing policies, and offer more
attractive terms to their customers than we can. Furthermore, because
Linux-based operating systems can be downloaded from the internet for free or
purchased at a nominal cost and modified and re-sold with few restrictions,
traditional barriers to entry are minimal. Accordingly, it is possible that new
competitors or alliances among existing competitors may emerge and rapidly
acquire significant market share. See "Business--Competition".
IF WE FAIL TO ESTABLISH AND MAINTAIN STRATEGIC DISTRIBUTION AND OTHER
COLLABORATIVE RELATIONSHIPS WITH INDUSTRY-LEADING COMPANIES, WE MAY NOT BE
ABLE TO ATTRACT AND RETAIN A LARGER CUSTOMER BASE
Our success depends on our ability to continue to establish and maintain
strategic distribution and other collaborative relationships with
industry-leading hardware manufacturers, distributors, software vendors and
enterprise solutions providers. These relationships allow us to offer our
products and services to a much larger customer base than we would otherwise be
able to through our direct sales and marketing efforts. We may not be able to
maintain these relationships or replace them on attractive terms.
In addition, our existing strategic relationships do not, and any future
strategic relationships may not, afford us any exclusive marketing or
distribution rights. As a result, the companies with which we have strategic
alliances are free to pursue alternative technologies and to develop alternative
products and services in addition to or in lieu of our products and services,
either on their own or in collaboration with others, including our competitors.
Moreover, we cannot guarantee that the companies with which we have strategic
relationships will market our products effectively or continue to devote the
resources necessary to provide us with effective sales, marketing and technical
support. See "Business--Sales, Marketing and Distribution".
ANY DISRUPTION IN OUR RELATIONSHIPS WITH OUR TWO LARGEST DISTRIBUTORS, ON WHOM
WE RELY FOR A SIGNIFICANT PERCENTAGE OF OUR PRODUCT REVENUE, COULD CAUSE OUR
REVENUE TO DECLINE
We are highly dependent on revenue from sales to our two largest
distributors, Frank Kasper & Associates and Ingram Micro, who together accounted
for approximately 54% of our total revenue for the fiscal year ended February
28, 1999. These distributors are not obligated to purchase products from us and
the loss of one or both of these distributors, or a reduction in the amount of
product sales generated by them, could significantly reduce our product revenue.
See "Business--Sales, Marketing and Distribution".
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<PAGE>
WE MAY NOT BE ABLE TO GENERATE ENOUGH ADDITIONAL REVENUE FROM OUR PLANNED
INTERNATIONAL EXPANSION TO OFFSET THE COSTS ASSOCIATED WITH ESTABLISHING AND
MAINTAINING FOREIGN OPERATIONS
A key component of our growth strategy is to expand our presence in foreign
markets. We have recently established subsidiaries in Ireland, the UK and
Germany, and are considering further expansion within Europe. We may also enter
other markets as opportunities arise. It will be costly to establish
international facilities and operations, promote our brand internationally, and
develop localized web sites and other systems. Revenue from international
activities may not offset the expense of establishing and maintaining these
foreign operations. In addition, because we have little experience in marketing
and distributing products or services for these markets, we may not benefit from
any first-to-market advantages.
WE MAY NOT BE ABLE TO MEET THE OPERATIONAL AND FINANCIAL CHALLENGES THAT WE WILL
ENCOUNTER AS OUR INTERNATIONAL OPERATIONS EXPAND
As we expand our international operations, we will face a number of
additional challenges associated with the conduct of business overseas. For
example:
- we may have difficulty managing and administering a globally-dispersed
business;
- fluctuations in exchange rates may negatively affect our operating
results;
- we may not be able to repatriate the earnings of our foreign operations;
- we will have to comply with a wide variety of foreign laws with which we
are not familiar;
- we may not be able to adequately protect our trademarks overseas due to
the uncertainty of laws and enforcement in certain countries relating to
the protection of intellectual property rights;
- reductions in business activity during the summer months in Europe and
certain other parts of the world could negatively impact the operating
results of our foreign operations;
- export controls could prevent us from shipping our products into and from
some markets;
- multiple and possibly overlapping tax structures could significantly
reduce the financial performance of our foreign operations;
- changes in import/export duties and quotas could affect the competitive
pricing of our products and services and reduce our market share in some
countries; and
- economic or political instability in some international markets could
result in the forfeiture of some foreign assets and the loss of sums spent
developing and marketing those assets.
EXPANDING OUR SERVICES BUSINESS WILL BE COSTLY AND MAY NOT RESULT IN ANY BENEFIT
TO US
We have recently expanded our strategic focus to place additional emphasis
on consulting, custom development, education and support services, from which we
have historically derived an insignificant amount of revenue. We cannot be
certain that our customers will engage our professional services organization to
assist with support, consulting, custom development, training and implementation
of our products. We also cannot be certain that we can attract or retain a
sufficient number of the highly qualified services personnel that the expansion
of our services business will need. In addition, this expansion has required,
and will continue to require, significant additional expenses and development,
financial and operational resources. The need for these additional resources
will place further strain on our management, financial and operational resources
and may make it more difficult for us to achieve and maintain profitability.
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<PAGE>
ATTEMPTS TO EXPAND BY MEANS OF BUSINESS COMBINATIONS AND STRATEGIC ALLIANCES MAY
NOT BE SUCCESSFUL AND MAY HARM OUR OPERATIONAL EFFICIENCY, FINANCIAL
PERFORMANCE AND RELATIONSHIPS WITH EMPLOYEES AND THIRD PARTIES
We may expand our operations or market presence by entering into business
combinations, investments, joint ventures or other strategic alliances with
hardware manufacturers, software vendors, internet companies, open source
software developers or other companies both in the United States and
internationally. Our ability to expand in this way may be limited due to the
many financial and operational risks accompanying these transactions. For
example:
- we may have difficulty assimilating the operations, technology and
personnel of the combined companies;
- our business may be disrupted by the allocation of resources to consummate
these transactions;
- we may have problems retaining key technical and managerial personnel from
acquired companies;
- we may experience one-time in-process research and development charges and
ongoing expenses associated with amortization of goodwill and other
purchased intangible assets;
- our stockholders will be diluted if we issue equity to fund these
transactions;
- acquired businesses may initially be unprofitable resulting in our
assumption of operating losses and increased expenses;
- our reputation may be harmed if the open source development community does
not approve of these transactions; and
- our relationships with existing employees, customers and business partners
may be weakened or terminated as a result of these transactions.
RISKS RELATED TO OUR INTERNET STRATEGY
WE MAY FAIL TO PROMOTE AND ENHANCE OUR WEB SITE EFFECTIVELY, WHICH MAY PREVENT
US FROM ATTRACTING NEW VISITORS, ADVERTISERS OR ELECTRONIC COMMERCE PARTNERS
TO OUR WEB SITE
Enhancing the REDHAT.COM web site is critical to our ability to increase our
revenue. In order to attract and retain internet users, advertisers and
electronic commerce partners, we intend to substantially increase our
expenditures for enhancing and further developing our web site. Our success in
promoting and enhancing the REDHAT.COM web site will also depend on our ability
to provide high quality content, features and functionality. If we fail to
promote our web site successfully or if visitors to our web site or advertisers
do not perceive our services to be useful, current or of high quality, our
ability to generate revenue from our web site will be significantly impaired.
BECAUSE THERE IS NO INDUSTRY STANDARD FOR THE MEASUREMENT OF THE EFFECTIVENESS
OF INTERNET ADVERTISING, ADVERTISERS MAY NOT INCREASE OR EVEN MAINTAIN THEIR
CURRENT LEVELS OF INTERNET ADVERTISING, WHICH WOULD PREVENT US FROM GENERATING
A SIGNIFICANT AMOUNT OF REVENUE FROM OUR WEB SITE
As we execute our internet strategy, we expect to derive an increasing
percentage of our revenue from sponsorships and advertising on our web site. We
may not generate these revenues if advertisers do not maintain or increase their
current levels of internet advertising. As there is no industry standard for the
measurement of the effectiveness of internet advertising, advertisers that
currently advertise on the internet may reduce or eliminate this form of
advertising and advertisers that have traditionally relied upon other
advertising media may be reluctant to begin to advertise on the internet.
Moreover, widespread adoption of currently available software programs that
limit or prevent advertisements from being delivered to an
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<PAGE>
internet user's computer would negatively affect the commercial viability of
internet advertising and would further deter advertisers from increasing or
maintaining current levels of internet advertising. Our ability to successfully
execute our internet strategy will be adversely affected if the market for
internet advertising fails to develop or develops more slowly than expected.
WE MAY NOT BE ABLE TO RESPOND QUICKLY TO NEW PRICING MODELS FOR ADVERTISING,
WHICH COULD PREVENT US FROM ATTRACTING QUALITY SPONSORS TO OUR WEB SITE
Different pricing models are used to sell advertising on the internet. It is
difficult to predict which, if any, will emerge as the industry standard. If we
cannot quickly and successfully respond to changes in pricing models for
internet advertising, or identify and adopt any industry standards that may
emerge, we will not be able to attract a sufficient number of quality sponsors
and our internet advertising strategy will fail.
WE MAY BE UNABLE TO ADEQUATELY MEASURE THE DEMOGRAPHICS OF VISITORS TO OUR WEB
SITE, WHICH IS CRITICAL TO OUR ABILITY TO ATTRACT ADVERTISING REVENUE
We expect that it will be important to our advertisers that we accurately
measure the demographics of the visitors to our web site. While we have not
committed significant resources to the measurement of demographics to date, we
are currently implementing systems designed to record demographic data on our
web site's visitors. This implementation may be costly, and if not done
effectively, may not permit us to accurately measure the demographic
characteristics of our web site's visitors. Until these new systems are
functional, we will continue to rely on third parties to provide some of these
measurement services. If these parties were unable to provide these services, we
would need to obtain them from other providers, which might not be readily
available. Companies may choose not to advertise on our web site or may pay less
for advertising if they do not perceive our measurements or measurements made by
third parties to be reliable.
OUR INTERNET STRATEGY WILL FAIL IF THE INFRASTRUCTURE OF THE INTERNET IS NOT
CONTINUALLY DEVELOPED AND MAINTAINED
The success of our internet strategy will depend in large part on the
continued development and maintenance of the infrastructure of the internet.
Because global commerce and the online exchange of information is new and
evolving, we cannot predict with any certainty that the internet will be a
viable commercial marketplace in the long term. The internet has experienced,
and we expect it to continue to experience, significant growth in the number of
users and amount of traffic. If the internet continues to experience an
increased number of users, frequency of use or increased bandwidth requirements
of users, it may not be able to support the demands placed upon it by this
growth, and its performance and reliability may suffer. Furthermore, the
internet has experienced a variety of outages and other delays as a result of
damage to portions of its infrastructure, and could face similar outages and
delays in the future. Any outage or delay could affect the level of internet
usage, as well as the volume of traffic on our web site. In addition, the
internet could lose its viability due to increased governmental regulation and
delays in the development or adoption of new standards and protocols to handle
increased levels of activity. If the necessary infrastructure, standards or
protocols or complementary products, services or facilities are not developed,
or if the internet does not become a viable commercial marketplace, our internet
strategy will not succeed.
WE ARE VULNERABLE TO UNEXPECTED NETWORK INTERRUPTIONS CAUSED BY SYSTEM FAILURES,
WHICH MAY RESULT IN REDUCED VISITOR TRAFFIC ON OUR WEB SITE, DECREASED REVENUE
AND HARM TO OUR REPUTATION
Substantially all of our communications hardware and other hardware related
to our web site is located at our facilities, although we are considering
locating them to a third-party facility within the next six months. Fire,
floods,
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<PAGE>
hurricanes, tornadoes, earthquakes, power loss, telecommunications failures,
break-ins and similar events could damage these systems. In addition, although
we have implemented network security measures, our servers are vulnerable to
computer viruses, electronic break-ins, human error and other similar disruptive
problems which could adversely affect our systems and web site. Although we try
to prevent unauthorized access to our systems, we cannot eliminate this risk
entirely. We could lose revenue and suffer damage to our reputation if our
systems were affected by any of these occurrences. Our insurance policies may
not adequately compensate us for any losses that may occur due to failures or
interruptions in our systems. We do not presently have any secondary "off-site"
systems or a formal disaster recovery plan.
VISITORS TO OUR WEB SITE COULD EXPERIENCE DELAYS AND DECREASED PERFORMANCE
DURING PERIODS OF HEAVY TRAFFIC, WHICH COULD RESULT IN DISSATISFACTION WITH
OUR WEB SITE AND DAMAGE TO OUR REPUTATION
Our web site must accommodate a high volume of traffic and deliver
frequently updated information. Our web site has in the past experienced slower
response times or decreased traffic for a variety of reasons. These occurrences
have not had a material impact on our business. These types of occurrences in
the future, however, could materially adversely affect our reputation and brand
name and could cause users to perceive our web site as not functioning properly.
Under these circumstances, our users might choose another web site or other
methods to obtain Linux-based operating systems or Linux-related information.
RISKS RELATED TO LEGAL UNCERTAINTY
WE COULD BE PREVENTED FROM SELLING OR DEVELOPING OUR PRODUCTS IF THE GNU GENERAL
PUBLIC LICENSE AND SIMILAR LICENSES UNDER WHICH OUR PRODUCTS ARE DEVELOPED AND
LICENSED ARE NOT ENFORCEABLE
The Linux kernel and the Red Hat Linux operating system have been developed
and licensed under the GNU General Public License and similar licenses. These
licenses state that any program licensed under them may be liberally copied,
modified and distributed. We know of no circumstance under which these licenses
have been challenged or interpreted in court. Accordingly, it is possible that a
court would hold these licenses to be unenforceable in the event that someone
were to file a claim asserting proprietary rights in a program developed and
distributed under them. Any ruling by a court that these licenses are not
enforceable, or that Linux-based operating systems, or significant portions of
them, may not be liberally copied, modified or distributed, would have the
effect of preventing us from selling or developing our products.
OUR PRODUCTS MAY CONTAIN DEFECTS THAT MAY BE COSTLY TO CORRECT, DELAY MARKET
ACCEPTANCE OF OUR PRODUCTS AND EXPOSE US TO LITIGATION
Despite testing by us and our customers, errors may be found in our products
after commencement of commercial shipments. This risk is exacerbated by the fact
that most of the code in our products is developed by independent parties over
whom we exercise no supervision or control. If errors are discovered, we may
have to make significant expenditures of capital to eliminate them and yet may
not be able to successfully correct them in a timely manner or at all. Errors
and failures in our products could result in a loss of, or delay in, market
acceptance of our products and could damage our reputation and our ability to
convince commercial users of the benefits of Linux-based operating systems and
other open source software products.
In addition, failures in our products could cause system failures for our
customers who may assert warranty and other claims for substantial damages
against us. Although our license agreements with our customers typically contain
provisions designed to limit our exposure to potential product liability
15
<PAGE>
claims, it is possible that these provisions may not be effective or enforceable
under the laws of some jurisdictions. Our insurance policies may not adequately
limit our exposure to this type of claim. These claims, even if unsuccessful,
could be costly and time consuming to defend.
WE ARE VULNERABLE TO CLAIMS THAT OUR PRODUCTS INFRINGE THIRD-PARTY INTELLECTUAL
PROPERTY RIGHTS PARTICULARLY BECAUSE OUR PRODUCTS ARE COMPRISED OF MANY
DISTINCT SOFTWARE COMPONENTS DEVELOPED BY THOUSANDS OF INDEPENDENT PARTIES
We may be exposed to future litigation based on claims that our products
infringe the intellectual property rights of others. This risk is exacerbated by
the fact that most of the code in our products is developed by independent
parties over whom we exercise no supervision or control. Claims of infringement
could require us to reengineer our products or seek to obtain licenses from
third parties in order to continue offering our products. In addition, an
adverse legal decision affecting our intellectual property, or the use of
significant resources to defend against this type of claim, could place a
significant strain on our financial resources and harm our reputation.
OUR EFFORTS TO PROTECT OUR TRADEMARKS MAY NOT BE ADEQUATE TO PREVENT THIRD
PARTIES FROM MISAPPROPRIATING OUR INTELLECTUAL PROPERTY RIGHTS
Our most valuable intellectual property is our collection of trademarks. The
protective steps we have taken in the past have been, and may in the future
continue to be, inadequate to deter misappropriation of our trademark rights.
Although we do not believe that we have suffered any material harm from
misappropriation to date, we may be unable to detect the unauthorized use of, or
take appropriate steps to enforce, our trademark rights. We have registered some
of our trademarks in the United States, Europe and Australia and have other
trademark applications pending in Australia, Canada and Europe. Effective
trademark protection may not be available in every country in which we offer or
intend to offer our products and services. Failure to adequately protect our
trademark rights could damage or even destroy the Red Hat brand and impair our
ability to compete effectively. Furthermore, defending or enforcing our
trademark rights could result in the expenditure of significant financial and
managerial resources. See "Business-- Intellectual Property".
WE MAY BE SUED AS A RESULT OF INFORMATION PUBLISHED OR POSTED ON OR ACCESSIBLE
FROM OUR REDHAT.COM WEB SITE
We may be subjected to claims for defamation, negligence, copyright or
trademark infringement or other claims relating to the information we publish on
our web site. These types of claims have been brought, sometimes successfully,
against online services in the past, and can be costly to defend. We may also be
subjected to claims based on content that is accessible from our web site
through links to other web sites or through content and materials that may be
posted by visitors to our web site. We believe that the scope and amount of our
commercial and general liability insurance is appropriate, given our current
financial position. However, this insurance may not adequately protect us
against these types of claims. We have not been a party to any lawsuit of this
type to date.
OUR SOFTWARE PRODUCTS, AS WELL AS THOSE OF OUR CUSTOMERS AND SUPPLIERS, COULD
FAIL AS A RESULT OF THE YEAR 2000 PROBLEM
We have conducted a review of Red Hat Linux and our internal systems to
identify functions that need correction to be "Year 2000 compliant". We have
not, however, tested our other products and have not tested or sought
certifications from third parties bundling software applications and components
with Official Red Hat Linux. Any failure by our products or third-party software
bundled with our products to function in the Year 2000 may decrease the value of
our products, give rise to warranty claims and tarnish the Red Hat brand.
Additionally, the Year 2000 problem may affect us by causing disruptions in the
business operations of, or delay technology purchases by, companies with which
we do business, such as customers and suppliers causing a
16
<PAGE>
decrease in our product revenue. See "Management's Discussion and Analysis of
Financial Condition and Results of Operations--Year 2000 Compliance".
RISKS RELATED TO THIS OFFERING
CONCENTRATION OF OWNERSHIP WILL LIMIT YOUR ABILITY TO INFLUENCE CORPORATE
MATTERS
Immediately following this offering, our directors, executive officers and
their affiliates will beneficially own approximately 67.7% of our outstanding
common stock. These stockholders could determine the outcome of actions taken by
us that require stockholder approval. For example, these stockholders could
elect all of our directors, delay or prevent a transaction in which stockholders
might receive a premium over the prevailing market price for their shares and
control changes in management.
PROVISIONS OF OUR CHARTER AND BY-LAWS MAY DELAY OR PREVENT TRANSACTIONS THAT
MANY STOCKHOLDERS MAY FAVOR
Provisions of our certificate of incorporation and by-laws may discourage,
delay or prevent a merger or acquisition that stockholders may consider
favorable, including transactions in which you might otherwise receive a premium
for your shares. These provisions include:
- authorizing the issuance of "blank check" preferred stock without any need
for action by stockholders;
- providing for a classified board of directors with staggered three-year
terms;
- requiring supermajority stockholder voting to effect certain amendments to
our certificate of incorporation and by-laws;
- eliminating the ability of stockholders to call special meetings of
stockholders;
- prohibiting stockholder action by written consent; and
- establishing advance notice requirements for nominations for election to
the board of directors or for proposing matters that can be acted on by
stockholders at stockholder meetings.
Some provisions of Delaware law may also discourage, delay or prevent
someone from acquiring us or merging with us. See "Description of Capital
Stock--Delaware Law and Certain Charter and By-Law Provisions and Anti-Takeover
Effects".
OUR STOCK PRICE MAY BE EXTREMELY VOLATILE AND YOU MAY NOT BE ABLE TO RESELL YOUR
SHARES AT OR ABOVE THE INITIAL OFFERING PRICE
Following this offering, the price at which our common stock will trade may
be extremely volatile and may fluctuate significantly. We will determine the
initial public offering price of our common stock, together with the
underwriters, based on an assessment of the valuation of our stock. The public
market may not agree with or accept this valuation. In addition, the stock
market has from time to time experienced significant price and volume
fluctuations that have affected the market prices for the securities of
technology companies, particularly software and internet companies. After this
offering, therefore, you might not be able to resell your shares at or above the
initial public offering price.
A SUBSTANTIAL NUMBER OF SHARES OF OUR COMMON STOCK COULD BE SOLD INTO THE PUBLIC
MARKET SOON AFTER THIS OFFERING, WHICH COULD DEPRESS OUR STOCK PRICE
Once a trading market develops for our common stock, many of our
stockholders will have an opportunity to sell their stock for the first time.
More than 60,000,000 shares, or ten times the number of shares sold in this
offering, assuming no exercise of the underwriters' over-allotment option, will
become eligible for sale in the public market at various dates beginning 180
days after the date of this prospectus. Sales of a substantial number of shares
of common stock in the public market, or the threat that substantial sales might
occur, could cause the market price of our stock to decrease significantly.
These factors could also make it difficult for us to raise additional capital by
selling stock. See "Shares Eligible for Future Sale".
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of the statements under "Prospectus Summary", "Risk Factors",
"Management's Discussion and Analysis of Financial Condition and Results of
Operations", "Business", and elsewhere in this prospectus constitute
forward-looking statements. In some cases, you can identify forward-looking
statements by terminology such as "may", "will", "should", "expects", "plans",
"anticipates", "believes", "estimated", "predicts", "potential", or "continue"
or the negative of such terms or other comparable terminology. These statements
are only predictions and involve known and unknown risks, uncertainties, and
other factors that may cause our or our industry's actual results, levels of
activity, performance, or achievements to be materially different from any
future results, levels of activity, performance, or achievements expressed or
implied by such forward-looking statements. These factors include, among other
things, those listed under "Risk Factors" and elsewhere in this prospectus.
Although we believe that the expectations reflected in the forward-looking
statements are reasonable, we cannot guarantee future results, levels of
activity, performance, or achievements. We are under no duty to update any of
the forward-looking statements after the date of this prospectus to conform
forward-looking statements to actual results.
USE OF PROCEEDS
We estimate the net proceeds to us from the sale of 6,000,000 shares of
common stock in this offering to be approximately $60,130,000 assuming an
initial public offering price of $11.00 per share and after deducting the
estimated underwriting discount and offering expenses. If the underwriters'
over-allotment option is exercised in full, we estimate net proceeds to be
$69,337,000.
The principal purposes of this offering are to increase our capitalization
and financial flexibility, to provide a public market for the common stock and
to facilitate access to public equity markets.
We expect to use the net proceeds for working capital and other general
corporate purposes, including geographic expansion involving the establishment
of additional foreign offices and/or subsidiaries. We have not allocated any
specific portion of the net proceeds to any particular purpose, and our
management will have the ability to allocate the proceeds at its discretion. A
portion of the net proceeds may be used for the acquisition of businesses,
products and technologies that are complementary to our own. The net proceeds of
this offering will be invested in short-term, interest-bearing, investment-grade
securities until allocated for specific use.
DIVIDEND POLICY
We have never paid any cash dividends on our common stock and do not
anticipate paying any cash dividends in the foreseeable future. We presently
intend to retain future earnings, if any, to finance the expansion and growth of
our business. Payment of future dividends, if any, will be at the discretion of
our Board of Directors after taking into account various factors, including our
financial condition, operating results, current and anticipated cash needs and
plans for expansion.
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CAPITALIZATION
The following table sets forth the capitalization of Red Hat as of May 31,
1999:
- on an actual basis;
- on a pro forma basis after giving effect to the conversion of our
outstanding preferred stock into common stock which will occur upon the
closing of this offering; and
- on a pro forma as adjusted basis to reflect the sale of the 6,000,000
shares of common stock offered in this offering at an assumed initial
public offering price of $11.00 per share after deducting the estimated
underwriting discount and offering expenses.
The outstanding share information excludes 5,369,088 shares of common stock
issuable upon the exercise of stock options outstanding on May 31, 1999,
3,197,450 shares of common stock issuable upon the exercise of warrants
outstanding on May 31, 1999 and 9,274,160 shares reserved as of May 31, 1999 for
future stock option grants and purchases under Red Hat's equity compensation
plans. See "Management--Employee Benefit Plans" and note 11 to notes to
financial statements.
You should read this information together with Red Hat's financial
statements and the notes to those statements appearing elsewhere in this
prospectus.
<TABLE>
<CAPTION>
MAY 31, 1999
------------------------------------
PRO FORMA
ACTUAL PRO FORMA AS ADJUSTED
--------- ----------- ------------
(IN THOUSANDS)
<S> <C> <C> <C>
Long-term obligations......................................................... $ -- $ -- $ --
Stockholders' equity (deficit):
Preferred stock:
Series A preferred stock, par value $.0001; 6,801,400 shares authorized,
issued and outstanding (actual); no shares authorized, issued or
outstanding (pro forma and pro forma as adjusted)......................... 1,997 -- --
Series B preferred stock, par value $.0001; 8,116,550 shares authorized,
issued and outstanding (actual); no shares authorized, issued or
outstanding (pro forma and pro forma as adjusted)......................... 6,936 -- --
Series C preferred stock, par value $.0001; 2,054,776 shares authorized,
2,054,776 issued and outstanding (actual); no shares authorized, issued or
outstanding (pro forma and pro forma as adjusted)......................... 6,405 -- --
Preferred stock, par value $0.0001; no shares authorized, issued or
outstanding (actual); 5,000,000 shares authorized and no shares issued or
outstanding (pro forma and pro forma as adjusted)......................... -- -- --
Common stock, par value $.0001; 225,000,000 shares authorized, 26,134,502
shares issued and outstanding (actual); 225,000,000, shares authorized,
60,079,954 shares issued and outstanding (pro forma); 225,000,000 shares
authorized, 66,079,954 shares issued and outstanding (pro forma as
adjusted)................................................................. 3 6 7
Additional paid-in capital.................................................. 5,946 21,281 81,410
Deferred compensation....................................................... (3,578) (3,578) (3,578)
Accumulated deficit......................................................... (2,567) (2,567) (2,567)
--------- ----------- ------------
Total stockholders' equity (deficit)........................................ (196) 15,142 75,272
--------- ----------- ------------
Total capitalization........................................................ $ 15,142 $ 15,142 $ 75,272
--------- ----------- ------------
--------- ----------- ------------
</TABLE>
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DILUTION
Red Hat's net tangible book value per share immediately after this offering
will be substantially less than the assumed initial public offering price. Red
Hat's pro forma net tangible book value as of May 31, 1999 was $15.1 million, or
$0.25 per share. Pro forma net tangible book value per share represents the pro
forma amount of total tangible assets less total liabilities, divided by the
number of pro forma shares of common stock outstanding. After giving effect to
the sale by us of the 6,000,000 shares of common stock in this offering at an
assumed initial public offering price of $11.00 per share, after deducting the
estimated underwriting discount and offering expenses, the pro forma as adjusted
net tangible book value of Red Hat as of May 31, 1999 would have been $75.2
million, or $1.14 per share. This represents an immediate increase in pro forma
as adjusted net tangible book value of $.89 per share to existing stockholders
and an immediate dilution of $9.86 per share to investors purchasing common
stock in this offering. The following table illustrates this per share dilution:
<TABLE>
<S> <C> <C>
Assumed initial public offering price....................................... $ 11.00
Pro forma net tangible book value per share prior to this offering........ $ .25
Increase per share attributable to this offering.......................... .89
---------
Adjusted pro forma net tangible book value per share after this offering.... 1.14
---------
Dilution per share to new investors......................................... $ 9.86
---------
---------
</TABLE>
Assuming the exercise in full of the underwriters' over-allotment option,
Red Hat's pro forma as adjusted net tangible book value at May 31, 1999 would be
approximately $1.26 per share, representing an immediate increase in the pro
forma net tangible book value of $1.01 per share to Red Hat's existing
stockholders and an immediate decrease in net tangible book value of $9.74 per
share to new investors.
The following table summarizes, on a pro forma as adjusted basis, as of May
31, 1999, the difference between the number of shares of common stock purchased
from Red Hat, the total consideration paid to Red Hat, and the average price per
share paid by existing stockholders and by new investors at an assumed initial
public offering price of $11.00 per share, before deducting the estimated
underwriting discounts and offering expenses.
<TABLE>
<CAPTION>
SHARES PURCHASED TOTAL CONSIDERATION
---------------------------- --------------------------- AVERAGE PRICE
NUMBER PERCENT AMOUNT PERCENT PER SHARE
--------------- ----------- -------------- ----------- --------------
<S> <C> <C> <C> <C> <C>
Existing stockholders...................... 60,079,954 90.9% $ 17,516,806 21.0% $ .29
New investors.............................. 6,000,000 9.1 66,000,000 79.0 11.00
--------------- ----- -------------- -----
Total.................................. 66,079,954 100.0% $ 83,516,806 100.0%
--------------- ----- -------------- -----
--------------- ----- -------------- -----
</TABLE>
------------------------
The discussion and the tables above assume no exercise of stock options or
warrants outstanding on May 31, 1999 and no issuance of shares reserved for
future issuance under Red Hat's equity plans. As of May 31, 1999, there were
options outstanding to purchase 5,369,088 shares of common stock at a weighted
average exercise price of $1.23 per share and warrants outstanding to purchase
3,197,450 shares of common stock at an exercise price of $.0001 per share.
Assuming the exercise in full of all of these options and warrants, Red Hat's
pro forma as adjusted net tangible book value at May 31, 1999 would be $1.21 per
share, representing an immediate increase in the pro forma net tangible book
value of $0.96 per share to Red Hat's existing stockholders and an immediate
decrease in net tangible book value of $9.79 per share to new investors. See
"Capitalization" and "Management--Employee Benefit Plans".
20
<PAGE>
SELECTED FINANCIAL DATA
The statement of operations data presented below for the fiscal years ended
February 28, 1997, February 28, 1998 and February 28, 1999, and the balance
sheet data as of February 28, 1998 and February 28, 1999, have been derived from
our financial statements which have been audited by PricewaterhouseCoopers LLP,
independent accountants, and are included elsewhere in this prospectus. The
statement of operations data for the three months ended May 31, 1998 and May 31,
1999 and the balance sheet data as of May 31, 1999 have been derived from our
unaudited financial statements included elsewhere in this prospectus. In the
opinion of management, these unaudited interim financial statements include all
adjustments (consisting of normal recurring adjustments) necessary for the fair
presentation of financial position, results of operations and cash flows. The
balance sheet data as of February 28, 1997 have been derived from our audited
financial statements which are not included in this prospectus. The statement of
operations data for the fiscal years ended February 28, 1995 and February 29,
1996, and the balance sheet data as of February 28, 1995 and February 29, 1996
have been derived from our unaudited financial statements which are not included
in this prospectus. You should read the data presented below in conjunction with
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and the financial statements and notes to those statements appearing
elsewhere in this prospectus.
<TABLE>
<CAPTION>
YEAR ENDED FEBRUARY 28,
--------------------------------------------
1995 1996(2) 1997 1998 1999
------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
(IN THOUSANDS, EXCEPT PER SHARE DATA)
STATEMENT OF OPERATIONS DATA:
Revenue:
Software and related products............................. $ 482 $ 930 $ 2,603 $ 5,132 $10,013
Web advertising........................................... -- -- -- -- --
Services and other........................................ -- -- -- 24 777
------- ------- ------- ------- -------
Total revenue........................................... 482 930 2,603 5,156 10,790
Cost of revenue:
Software and related products............................. 352 432 1,205 2,211 4,013
Web advertising........................................... -- -- -- -- --
Services and other........................................ -- -- -- -- 28
------- ------- ------- ------- -------
Total cost of revenue................................... 352 432 1,205 2,211 4,041
------- ------- ------- ------- -------
Gross profit................................................ 130 498 1,398 2,945 6,749
------- ------- ------- ------- -------
Operating expense:
Sales and marketing....................................... 133 241 491 1,252 3,083
Research and development.................................. 80 250 325 903 2,220
General and administrative................................ 44 140 526 799 1,484
------- ------- ------- ------- -------
Total operating expenses................................ 257 631 1,342 2,954 6,787
------- ------- ------- ------- -------
Income (loss) from operations............................. (127) (133) 56 (9) (38)
Other income (expense), net................................. (1) (22) (23) 22 162
------- ------- ------- ------- -------
Income (loss) before income taxes........................... (128) (155) 33 13 124
Provision for income taxes.................................. -- -- -- 5 215
------- ------- ------- ------- -------
Net income (loss)........................................... (128) (155) 33 8 (91)
Accretion on mandatorily redeemable preferred stock......... -- -- -- -- (39)
------- ------- ------- ------- -------
Net income (loss) available to common stockholders.......... $ (128) $ (155) $ 33 $ 8 $ (130)
------- ------- ------- ------- -------
------- ------- ------- ------- -------
Earnings (loss) per common share (1):
Basic..................................................... (0.01) (0.01) 0.00 0.00 (0.01)
Diluted................................................... (0.01) (0.01) 0.00 0.00 (0.01)
Weighted average common shares outstanding:
Basic..................................................... 12,000 22,626 23,500 23,500 23,550
Diluted................................................... 12,000 22,626 27,233 34,578 23,550
Pro forma net income (loss) per common share (1):
Basic..................................................... (0.01) (0.01) 0.00 0.00 0.00
Diluted................................................... (0.01) (0.01) 0.00 0.00 0.00
Shares of common stock used in computing pro forma net
income (loss) per share:
Basic..................................................... 12,000 22,626 23,500 30,842 43,930
Diluted................................................... 12,000 22,626 27,233 34,578 43,930
<CAPTION>
THREE MONTHS
ENDED MAY 31,
----------------
1998 1999
------- -------
(UNAUDITED)
<S> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenue:
Software and related products............................. $ 1,374 $ 1,936
Web advertising........................................... -- 80
Services and other........................................ 177 781
------- -------
Total revenue........................................... 1,551 2,797
Cost of revenue:
Software and related products............................. 682 1,181
Web advertising........................................... -- 123
Services and other........................................ -- 443
------- -------
Total cost of revenue................................... 682 1,747
------- -------
Gross profit................................................ 869 1,050
------- -------
Operating expense:
Sales and marketing....................................... 382 1,629
Research and development.................................. 341 826
General and administrative................................ 214 824
------- -------
Total operating expenses................................ 937 3,279
------- -------
Income (loss) from operations............................. (68) (2,229)
Other income (expense), net................................. 15 140
------- -------
Income (loss) before income taxes........................... (53) (2,089)
Provision for income taxes.................................. -- --
------- -------
Net income (loss)........................................... (53) (2,089)
Accretion on mandatorily redeemable preferred stock......... -- (43)
------- -------
Net income (loss) available to common stockholders.......... $ (53) $(2,132)
------- -------
------- -------
Earnings (loss) per common share (1):
Basic..................................................... 0.00 (0.09)
Diluted................................................... 0.00 (0.09)
Weighted average common shares outstanding:
Basic..................................................... 23,500 24,383
Diluted................................................... 23,500 24,383
Pro forma net income (loss) per common share (1):
Basic..................................................... 0.00 (0.04)
Diluted................................................... 0.00 (0.04)
Shares of common stock used in computing pro forma net
income (loss) per share:
Basic..................................................... 37,103 57,782
Diluted................................................... 37,103 57,782
</TABLE>
21
<PAGE>
<TABLE>
<CAPTION>
FEBRUARY 28, MAY 31,
--------------------------------------- -------
1995 1996(2) 1997 1998 1999 1999
----- ------- ----- ------ ------- -------
<S> <C> <C> <C> <C> <C> <C>
(IN THOUSANDS)
BALANCE SHEET DATA:
Cash and cash equivalents.............................. $ -- $ -- $ -- $1,293 $10,055 $13,982
Working capital (deficit).............................. (129) (160) (324) 1,541 11,100 13,217
Total assets........................................... 106 245 670 3,131 15,276 22,162
Long term liabilities.................................. -- 30 145 65 420 385
Mandatorily redeemable preferred stock................. -- -- -- 1,983 12,107 15,338
Total stockholders' equity (deficit)................... (42) (79) (46) (38) (5) (196)
</TABLE>
- --------------------------
(1) See note 2 to notes to financial statements.
(2) Red Hat's fiscal year ended on February 29, 1996.
22
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
THE FOLLOWING DISCUSSION AND ANALYSIS SHOULD BE READ IN CONJUNCTION WITH RED
HAT'S FINANCIAL STATEMENTS AND RELATED NOTES INCLUDED ELSEWHERE IN THIS
PROSPECTUS. THE FOLLOWING DISCUSSION CONTAINS FORWARD-LOOKING STATEMENTS THAT
INVOLVE RISKS AND UNCERTAINTIES. ACTUAL RESULTS MAY DIFFER MATERIALLY FROM THOSE
INDICATED IN SUCH FORWARD-LOOKING STATEMENTS. SEE "SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS".
OVERVIEW
Red Hat, Inc. is a leading developer and provider of open source software
products and services, and has built a comprehensive web site dedicated to the
open source software community. Red Hat, Inc. was incorporated in Connecticut in
March 1993 as ACC Corp., Inc. In September 1995, ACC Corp., Inc. changed its
name to Red Hat Software, Inc. In September 1998, Red Hat Software, Inc.
reincorporated in Delaware. In June 1999, Red Hat Software, Inc. changed its
name to Red Hat, Inc. We have financed our activities to date through proceeds
from the private sale of equity securities and cash flow from operations.
Sales of Official Red Hat Linux have represented our principal source of
revenue since its introduction in October 1994. We derive our software and
related products revenue primarily from the sale of software products:
- through distributors to enterprise and retail accounts;
- directly to individual users and enterprises through our REDHAT.COM web
site and our call center; and
- from original equipment manufacturers which license our software directly.
We recognize revenue from software product sales to distributors and original
equipment manufacturers for which no technical support is provided at the time
our products are shipped, net of a reserve for estimated sales returns. This
reserve is recognized based on our historical experience of these distributors'
rates of sell-through to the end user. Revenue from the sale of software
products to individual users and enterprises for which no technical support is
provided is recognized on the date we ship the software products. Upon the
release of Version 6.0 of Red Hat Linux in May 1999, we began selling Official
Red Hat Linux with 30 days of free telephone technical support and 90 days of
free e-mail technical support. In accordance with the provisions of Statement of
Opinion No. 97-2 "Software Revenue Recognition", we are recognizing all of the
revenue from the sale of Version 6.0 of Official Red Hat Linux ratably over the
period that the technical support services are provided in proportion to the
costs incurred to provide such technical support services as compared to
estimated total costs to be incurred.
We have recently added new features to our REDHAT.COM web site. We intend to
develop additional features for our web site which we believe will result in
both a substantial increase in the number of visitors who access our web site
and increased advertising revenue. Advertising revenue is derived principally
from short-term advertising contracts in which we typically guarantee a minimum
number of impressions to be delivered to users over a specified period of time
for a fixed fee. Advertising rates are typically measured on a cost per thousand
impressions basis. Advertising revenue is recognized ratably in the period in
which the advertisement is displayed, provided that we have no significant
remaining obligations, at the lesser of the ratio of impressions delivered over
total guaranteed impressions or the straight line basis over the term of the
contract. If we do not meet minimum guaranteed impressions requirements, we
defer recognition of the corresponding revenue until the minimum number of
guaranteed impressions is
23
<PAGE>
achieved. We did not generate revenue from the sale of advertising on our web
site until the first quarter of the fiscal year ending February 29, 2000.
However, we believe that the expected increase in traffic on our web site, along
with our focus on marketing our advertising services, will generate significant
advertising revenue in the future.
Prior to March 1999, we did not provide any service offerings to our
customers. In March 1999, we expanded our service offerings to include
comprehensive support and maintenance, custom development, consulting and
education services. Although these services generated only an insignificant
amount of revenue through February 28, 1999, we earned $0.6 million in service
revenues during the three months ended May 31, 1999. We believe that because our
revenue has historically been derived from product offerings, this expansion in
and active marketing of our service offerings will cause our services revenue to
continue to increase significantly as a percentage of total revenue in the
fiscal year ending February 29, 2000. Revenue from support and maintenance
agreements is deferred and recognized ratably over the term of the related
agreement, which is typically one year. Revenue from custom development,
consulting and education services, which includes offering training courses and
hardware certification services, is recognized as the services are provided.
Our software products are sold worldwide, with all of our total revenue
coming from North America, except for some royalties received from international
sources which totalled less than $50,000 for the fiscal year ended February 28,
1999. In June 1999 we established international operations and we expect that
total revenue derived from sales outside of North America will increase in the
fiscal year ending February 29, 2000 as we expand these operations.
We have historically experienced fluctuations in our results of operations
related to the release of major upgrades to Red Hat Linux. We believe that the
anticipation by our customers of the release of these upgrades has resulted in,
and will continue to result in, a decline in sales for several months prior to
the release and an increase in sales immediately following the release. Prior to
our release in May 1999 of Version 6.0 of Official Red Hat Linux, software
product sales decreased, but after the release we experienced an immediate
significant increase in both the volume and dollar amount of software product
sales. In addition, we believe that revenue from the sale of Official Red Hat
Linux and related products will decline as a percentage of total revenue in the
future as we continue to expand our services offerings and execute our web
initiative.
Sales of software products to distributors comprised $0.7 million or 26.1%
of total software and related products revenue in the fiscal year ended February
28, 1997, $0.9 million or 17.3% of total software and related products revenue
in the fiscal year ended February 28, 1998, and $5.9 million or 58.2% of total
software and related products revenue in the fiscal year ended February 28,
1999. Sales of software products to end users through our REDHAT.COM web site
and call center comprised $1.9 million or 73.9% of total software and related
products revenue in the fiscal year ended February 28, 1997, $3.0 million or
58.8% of total software and related products revenue in the fiscal year ended
February 28, 1998 and $3.2 million or 29.6% of total software and related
products revenue in the fiscal year ended February 28, 1999.
We plan to expand sales through distributors as well as direct sales through
our web site. We also plan to expand our original equipment manufacturer
relationships in the fiscal year ending February 29, 2000 and therefore expect
that our original equipment manufacturer-related revenue for this fiscal year
will increase significantly as a percentage of total revenue as compared to the
fiscal year ended February 28, 1999.
Sales to Frank Kasper & Associates, one of our primary distributors,
constituted approximately 16.0% of total revenue in the fiscal year ended
February 28, 1997, and
24
<PAGE>
26.0% of total revenue in the fiscal year ended February 28, 1998. Sales to
Frank Kasper & Associates and to Ingram Micro, our two largest distributors in
fiscal 1999, comprised 54.0% of total revenue in the fiscal year ended February
28, 1999. We provide our distributors an advertising allowance on a quarterly
basis, determined upon our approval of the distributors' advertising plans.
Distributors must then submit to us a detailed list of expenses incurred by us.
We pay all approved expenses and recognize these costs as a component of sales
and marketing expense as such expenses are incurred.
We employed 140 people at June 30, 1999, compared to 38 at March 1, 1998.
This increase in headcount resulted primarily from:
- an increase in administrative personnel as we recruited our management
team;
- an increase in support, maintenance, consulting and education personnel
associated with our efforts to develop the infrastructure of our services
organization;
- an increase in research and development personnel; and
- the commencement of international operations.
We expect to continue to increase expenses associated with our sales and
marketing, research and development and general and administrative groups in
anticipation of continued growth and expansion. Given the expected increase in
headcount, we anticipate that we will need to either expand our existing offices
or lease additional office space at a separate location within the next 12 to 18
months. We believe that this expansion will result in an increase in total
facilities costs.
25
<PAGE>
RESULTS OF OPERATIONS
The following table sets forth the results of operations for Red Hat
expressed as a percentage of total revenue. The historical results are not
necessarily indicative of results to be expected for any future period.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
YEAR ENDED FEBRUARY 28, MAY 31,
------------------------------- --------------------
<S> <C> <C> <C> <C> <C>
1997 1998 1999 1998 1999
--------- --------- --------- --------- ---------
(UNAUDITED)
Revenue:
Software and related products................... 100.0% 99.5% 92.8% 88.6% 69.2%
Web advertising................................. 0.0 0.0 0.0 0.0 2.9
Services and other.............................. 0.0 0.5 7.2 11.4 27.9
--------- --------- --------- --------- ---------
Total revenue................................. 100.0 100.0 100.0 100.0 100.0
Cost of revenue:
Software and related products................... 46.3 42.9 37.2 44.0 42.2
Web advertising................................. 0.0 0.0 0.0 0.0 4.4
Services and other.............................. 0.0 0.0 0.2 0.0 15.8
--------- --------- --------- --------- ---------
Total cost of revenue......................... 46.3 42.9 37.4 44.0 62.4
Gross profit...................................... 53.7 57.1 62.6 56.0 37.6
Operating expense:
Sales and marketing............................. 18.8 24.3 28.6 24.6 58.2
Research and development........................ 12.5 17.5 20.6 22.0 29.5
General and administrative...................... 20.2 15.5 13.7 13.8 29.5
--------- --------- --------- --------- ---------
Total operating expense....................... 51.5 57.3 62.9 60.4 117.2
Income (loss) from operations..................... 2.2 (0.2) (0.3) (4.4) (79.6)
Other income (expense), net....................... (0.9) 0.4 1.5 1.0 5.0
Income before income taxes........................ 1.3 0.2 1.2 (3.4) (74.6)
Provision for income taxes........................ 0.0 0.1 2.0 0.0 0.0
--------- --------- --------- --------- ---------
Net income (loss)................................. 1.3 0.1 (0.8) (3.4) (74.6)
Accretion on mandatorily redeemable preferred
stock........................................... 0.0 0.0 (0.4) 0.0 (1.5)
--------- --------- --------- --------- ---------
Net income (loss) available to common
stockholders.................................... 1.3% 0.1% (1.2)% (3.4)% (76.1)%
--------- --------- --------- --------- ---------
--------- --------- --------- --------- ---------
</TABLE>
26
<PAGE>
THREE MONTHS ENDED MAY 31, 1999 AND 1998
TOTAL REVENUE
Total revenue increased 80.3% to $2.8 million in the three months ended May
31, 1999 from $1.6 million in the three months ended May 31, 1998. Substantially
all of our revenue for the three months ended May 31, 1999 came from customers
located in the United States.
SOFTWARE AND RELATED PRODUCTS REVENUE
Software and related products revenue is comprised primarily of sales of
Official Red Hat Linux and related software products and sales of publications
about Linux-based operating systems. Software and related products revenue
increased 40.9% to $1.9 million or 69.2% of total revenue in the three months
ended May 31, 1999 from $1.4 million or 88.6% of total revenue in the three
months ended May 31, 1998. The decrease in software and related products as a
percentage of total revenue was due to the increase in services and other
revenue.
Software products revenue increased to $1.3 million during the three months
ended May 31, 1999 from $1.0 million for the three months ended May 31, 1998.
The increase in software products revenue was due to higher sales of Official
Red Hat Linux, as a result of the release of Version 6.0 of Official Red Hat
Linux in May 1999.
Related products revenue, which is comprised of revenue from sales of books
and other products, increased to $0.6 million during the three months ended May
31, 1999 compared to $0.4 million in the three months ended May 31, 1998.
WEB ADVERTISING REVENUE
Web advertising revenue is comprised of fees generated from short-term
contracts with advertisers to present advertising on our web site. Web
advertising revenue increased to $80,000 in the three months ended May 31, 1999
from zero in the three months ended May 31, 1998. As a percentage of total
revenue, web advertising revenue increased to 2.9% in the three months ended May
31, 1999 from zero in the three months ended May 31, 1998. These increases were
due to the commencement of our web initiative during the three months ended May
31, 1999.
SERVICES AND OTHER REVENUE
Services and other revenue is comprised of support and maintenance fees,
custom development fees, consulting and education fees and royalties received
from licensing our trademarks. Services and other revenue increased to $0.8
million in the three months ended May 31, 1999 from $0.2 million in the three
months ended May 31, 1998. As a percentage of total revenue, services and other
revenue increased to 27.9% in the three months ended May 31, 1999 from 11.4% in
the three months ended May 31, 1998.
Services and other revenue was comprised of $0.6 million in services revenue
and $0.2 million in royalties for the three months ended May 31, 1999 as
compared to $0.1 million in services revenue and $0.1 million in royalties for
the three months ended May 31, 1998. The increase in services revenue resulted
primarily from an increase in consulting and education revenue earned in the
three months ended May 31, 1999 as we expanded our course offerings, and, to a
lesser extent, an increase in support and maintenance revenues as we began to
sell support and maintenance services. We expect services revenue to increase
significantly in dollar amount and as a percentage of revenues as we continue to
develop and expand our support and maintenance, custom development and
consulting and education services and as we actively market these services.
COST OF REVENUE
COST OF SOFTWARE AND RELATED PRODUCTS
Cost of software and related products primarily consists of expenses we
incur to manufacture, package and distribute our products and related
documentation. These costs include expenses for physical media, literature and
packaging, fulfillment and
27
<PAGE>
shipping. Also included are royalties paid by us for licensing third-party
applications included in our software products and third-party publications.
Cost of software and related products increased 73.0% to $1.2 million in the
three months ended May 31, 1999 from $0.7 million in the three months ended May
31, 1998. The increase in cost of software and related products was directly
related to the increase in sales of software and related products. As a
percentage of software and related products revenue, cost of software and
related products increased to 61.0% in the three months ended May 31, 1999 from
44.0% in the three months ended May 31, 1998. This increase was primarily due to
the commencement of our program providing 30 days of telephone installation
support with the purchase of Version 6.0 of Official Red Hat Linux in May 1999.
COST OF WEB ADVERTISING
Cost of web advertising revenue includes the cost of developing the
advertising and supporting the website. Cost of web advertising revenue
increased to $0.1 million in the three months ended May 31, 1999, compared to
zero in the three months ended May 31, 1998. As a percentage of total revenue,
cost of web advertising revenue increased to 4.4% in the three months ended May
31, 1999, as compared to zero in the three months ended May 31, 1998. These
increases were due to our offering web advertising for the first time during the
three months ended May 31, 1999.
COST OF SERVICES AND OTHER
Cost of services includes salaries of support and maintenance, custom
development, consulting and education personnel and related costs. Cost of
services and other for the three months ended May 31, 1999 was primarily
comprised of costs of salaries and other related costs incurred for our training
and certification program. We incur no direct costs related to royalties
received for our trademarks to third parties. Cost of services and other
increased to $0.4 million in the three months ended May 31, 1999 from zero in
the three months ended May 31, 1998. As a percentage of services and other
revenue, cost of services and other increased to 56.7% in the three months ended
May 31, 1999 from zero in the three months ended May 31, 1998.
We expect cost of services and other to increase in the fiscal year ending
February 29, 2000, as we expand our service offerings, which will include the
costs associated with providing technical support and maintenance, custom
development, consulting and education. We expect these costs to be high in
dollar amount and as a percentage of services and other revenue due to costs
that we will incur in connection with developing and expanding our services
organization. Cost of services and other as a percentage of services and other
revenue is expected to vary significantly from period to period depending upon
the mix of services we provide, whether such services are provided by us or
third-party contractors, and overall utilization rate of our services staff.
GROSS PROFIT
Gross profit increased 21.0% to $1.0 million in the three months ended May
31, 1999 from $0.9 million in the three months ended May 31, 1998. As a
percentage of total revenue, gross profit decreased to 37.6% in the three months
ended May 31, 1999 from 56.0% in the three months ended May 31, 1998. The
increase in gross profit is due to the increased sales of our software products,
which is primarily the result of the release of Version 6.0 of Official Red Hat
Linux in May 1999. The decrease in gross profit as a percentage of revenue is
the result of the commencement of our program providing telephone installation
support with the purchase of Version 6.0 of Official Red Hat Linux for no
additional fee and our support, maintenance, consulting and education services
during the three months ended May 31, 1999.
OPERATING EXPENSE
SALES AND MARKETING
Sales and marketing expense consists primarily of salaries and other related
costs for sales and marketing personnel, sales
28
<PAGE>
commissions, travel, public relations, marketing materials and tradeshows. Sales
and marketing expense increased 326.4% to $1.6 million in the three months ended
May 31, 1999 from $0.4 million in the three months ended May 31, 1998. As a
percentage of total revenue, sales and marketing expense increased to 58.2% in
the three months ended May 31, 1999 from 24.6% in the three months ended May 31,
1998. These increases were due to higher advertising and promotional costs
incurred to promote the release of Version 6.0 of Official Red Hat Linux, and
costs incurred to promote our web site and service offerings. Sales and
marketing expense also includes costs resulting from joint marketing
arrangements with distributors. These costs totaled $0.1 million in the three
months ended May 31, 1999, as compared to zero in the three months ended May 31,
1998. This increase is due to Ingram Micro becoming a distributor of our
software products in November 1998. We expect sales and marketing expense to
increase in the foreseeable future as we promote the expansion of our services
offerings and web site and expand our international operations.
RESEARCH AND DEVELOPMENT
Research and development expense consists primarily of personnel and related
costs for our software products and web development efforts. Research and
development expense increased 142.2% to $0.8 million in the three months ended
May 31, 1999 from $0.3 million in the three months ended May 31, 1998. As a
percentage of total revenue, research and development expense increased to 29.5%
in the three months ended May 31, 1999 from 22.0% in the three months ended May
31, 1998. These increases resulted from increased spending related to the
development of our web initiative and costs incurred to complete the development
of Version 6.0 of Official Red Hat Linux. We expect research and development
expenses to continue to increase in the future as we develop our web site and
expand features in Red Hat Linux.
GENERAL AND ADMINISTRATIVE
General and administrative expense consists primarily of personnel and
related costs for general corporate functions, including finance, accounting,
legal, human resources, facilities and information system expenses. General and
administrative expense increased 285.0% to $0.8 million in the three months
ended May 31, 1999 from $0.2 million in the three months ended May 31, 1998. As
a percentage of total revenue, general and administrative expense increased to
26.9% in the three months ended May 31, 1999 from 13.8% in the three months
ended May 31, 1998. The increase in general and administrative expense resulted
from:
- an increase in payroll costs of $0.3 million due to the increase in the
number of general and administrative personnel to 17 at May 31, 1999 from
7 at May 31, 1998
- an increase in legal and accounting costs of $0.1 million in the three
months ended May 31, 1999 as compared to the three months ended May 31,
1998
- an increase in facilities cost of $0.1 million due to higher costs
associated with our new headquarters.
- recognition of $0.1 million in non-cash compensation expense related to
amortization of deferred compensation.
We expect general and administrative expense to continue to increase in the
next 12 months as we add administrative personnel to support our business
expansion and as we amortize, over the vesting period of the options, which is
generally four years, the deferred compensation balance of $3.6 million related
to stock options granted by the Board of Directors during the three months ended
May 31, 1999.
OTHER INCOME (EXPENSE), NET
Other income (expense) consists of interest income earned on cash deposited
in money market accounts and other short-term investments and interest expense
incurred on capital leases. Other income (expense), net increased 833.3% to
income of $0.1 million in
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the three months ended May 31, 1999 from income of $15,000 in the three months
ended May 31, 1998. As a percentage of total revenue, other income (expense),
net increased to 5.0% in the three months ended May 31, 1999 from 1.0% in the
three months ended May 31, 1998. These increases resulted from higher average
cash and cash equivalents and short-term investment balances in the three months
ended May 31, 1999 as compared to the three months ended May 31, 1998 due to
receipt of proceeds from sale of preferred stock in September 1998 and in
February, March and April 1999.
PROVISION FOR INCOME TAXES
We had no provision for income taxes for the three months ended May 31, 1999
and 1998, as we incurred losses during these periods.
ACCRETION OF MANDATORILY REDEEMABLE PREFERRED STOCK
The increase in the accretion from mandatorily redeemable preferred stock to
$43,000 in the three months ended May 31, 1999 from zero for the three months
ended May 31, 1998 was a result of the fact that we had no outstanding
mandatorily redeemable preferred stock prior to September 1998.
FISCAL YEARS ENDED FEBRUARY 28, 1999 AND 1998
TOTAL REVENUE
Total revenue increased 109.3% to $10.8 million in the fiscal year ended
February 28, 1999 from $5.2 million in the fiscal year ended February 28, 1998.
SOFTWARE AND RELATED PRODUCTS REVENUE
Software and related products revenue increased 95.1% to $10.0 million, or
92.8% of total revenue, in the fiscal year ended February 28, 1999 from $5.1
million, or 99.5% of total revenue, in the fiscal year ended February 28, 1998.
The decrease in software and related products revenue as a percentage of total
revenue was due to the increase in services and other revenue.
Software products revenue increased to $9.0 million during the fiscal year
ended February 28, 1999 from $3.9 million for the fiscal year ended February 28,
1998. The increase in software products revenue was due to higher sales of
Official Red Hat Linux. We met the higher demand for Official Red Hat Linux by
establishing a relationship with a major distributor in November 1998 and
subsequently adding prominent national computer and software retailers.
Related products revenue decreased to $1.0 million during the fiscal year
ended February 28, 1999 compared to $1.2 million in the fiscal year ended
February 28, 1998. During the fiscal year ended February 28, 1999, we reduced
the number of publications that we published and distributed to focus our
efforts on our software products.
SERVICES AND OTHER REVENUE
Services and other revenue increased to $0.8 million in the fiscal year
ended February 28, 1999 from $24,000 in the fiscal year ended February 28, 1998.
As a percentage of total revenue, services and other revenue increased to 7.2%
in the fiscal year ended February 28, 1999 from 0.5% in the fiscal year ended
February 28, 1998.
Services and other revenue was comprised of $0.1 million in services revenue
and $0.7 million in royalties for the fiscal year ended February 28, 1999
compared to no services revenue and $24,000 in royalties for the fiscal year
ended February 28, 1998. The increase in services revenue resulted from the
introduction of our training and certification program during February 1999.
The increase in royalties resulted from the licensing of some of our
trademarks to third parties, nationally and internationally, as a way of
increasing our market share in markets or geographic locations important to our
business plan. This strategy allowed us to have a local presence without
incurring the costs associated with establishing separate operations in each of
these markets or geographic locations. During the fiscal year ended February 28,
1999, we licensed some of our trademarks to publishers, who paid us a
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royalty based on their sales. We expect to discontinue some of these agreements
during the fiscal year ending February 29, 2000 due to our geographic expansion
plans.
COST OF REVENUE
COST OF SOFTWARE AND RELATED PRODUCTS
Cost of software and related products increased 81.5% to $4.0 million in the
fiscal year ended February 28, 1999 from $2.2 million in the fiscal year ended
February 28, 1998. The increase in cost of software and related products was
directly related to the increase in sales of software and related products. As a
percentage of software and related products revenue, cost of software and
related products decreased to 40.1% in the fiscal year ended February 28, 1999
from 43.1% in the fiscal year ended February 28, 1998. This decrease was due to
the decline in royalties paid to third parties because of the reduction in the
number of third-party applications included in our software products.
COST OF SERVICES AND OTHER
Cost of services for the fiscal year ended February 28, 1999 was primarily
comprised of salaries and other related costs incurred for our training and
certification program which commenced in February 1999. Cost of services and
other increased to $28,000 in the fiscal year ended February 28, 1999 from zero
in the fiscal year ended February 28, 1998. As a percentage of services and
other revenue, cost of services and other increased to 3.6% in the fiscal year
ended February 28, 1999 from zero percent in the fiscal year ended February 28,
1998. These increases were due to greater costs associated with our preparation
to expand our service offerings through the hiring of additional personnel.
GROSS PROFIT
Gross profit increased 129.2% to $6.7 million in the fiscal year ended
February 28, 1999 from $2.9 million in the fiscal year ended February 28, 1998.
As a percentage of total revenue, gross profit increased to 62.6% in the fiscal
year ended February 28, 1999 from 57.1% in the fiscal year ended February 28,
1998. These increases were primarily due to an increase in royalties received
for licensing our trademarks to third parties of $0.7 million in the fiscal year
ended February 28, 1999 for which we incurred no direct costs.
OPERATING EXPENSE
SALES AND MARKETING
Sales and marketing expense increased 146.2% to $3.1 million in the fiscal
year ended February 28, 1999 from $1.3 million in the fiscal year ended February
28, 1998. Costs associated with joint marketing arrangements with distributors
totaled $0.1 million in the fiscal year ended February 28, 1999, as compared to
zero in the fiscal year ended February 28, 1998. As a percentage of total
revenue, sales and marketing expense increased to 28.6% in the fiscal year ended
February 28, 1999 from 24.3% in the fiscal year ended February 28, 1998. These
increases were due to greater costs attributable to cooperative marketing
arrangements with distributors, which were approximately $0.1 million in the
fiscal year ended February 28, 1999 and were zero in the fiscal year ended
February 28, 1998, and extensive public relations activities in the fiscal year
ended February 28, 1999 to promote our brand.
RESEARCH AND DEVELOPMENT
Research and development expense increased 145.9% to $2.2 million in the
fiscal year ended February 28, 1999 from $0.9 million in the fiscal year ended
February 28, 1998. As a percentage of total revenue, research and development
expense increased to 20.6% in the fiscal year ended February 28, 1999 from 17.5%
in the fiscal year ended February 28, 1998. These increases resulted from an
increase in the number of research and development personnel necessary to
support both expanded functionality and ease of use of Official Red Hat Linux,
costs of personnel involved in the GNOME graphical user interface project, and
increases in quality assurance and technical documentation projects.
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GENERAL AND ADMINISTRATIVE
General and administrative expense increased 85.8% to $1.5 million in the
fiscal year ended February 28, 1999 from $0.8 million in the fiscal year ended
February 28, 1998. The increase in general and administrative expense resulted
from:
- an increase in payroll costs of $0.3 million due to the increase in the
number of general and administrative personnel to 14 at February 28, 1999
from 5 at February 28, 1998;
- an increase in legal and accounting costs of $0.4 million in the fiscal
year ended February 28, 1999 incurred in connection with establishment of
new business activities; and
- to a lesser extent, due to approximately $60,000 in costs incurred
associated with relocating our offices in January 1999.
As a percentage of total revenue, general and administrative expense
decreased to 13.7% in the fiscal year ended February 28, 1999 from 15.5% in the
fiscal year ended February 28, 1998. This decrease was due primarily to revenue
increasing at a higher rate than general and administrative expense.
OTHER INCOME (EXPENSE), NET
Other income (expense), net increased 656.6% to income of $0.2 million in
the fiscal year ended February 28, 1999 from income of $20,000 in the fiscal
year ended February 28, 1998. As a percentage of total revenue, other income
(expense), net increased to 1.5% in the fiscal year ended February 28, 1999 from
0.4% in the fiscal year ended February 28, 1998. These increases resulted from
higher average cash and cash equivalents and short-term investment balances in
the fiscal year ended February 28, 1999 compared to fiscal 1998 due to receipt
of proceeds from the sale of preferred stock in September 1998 and the repayment
of outstanding notes payable during the fiscal year ended Feburary 28, 1998.
PROVISION FOR INCOME TAXES
Provision for income taxes increased to $0.2 million in the fiscal year
ended February 28, 1999 from $5,000 in the fiscal year ended February 28, 1998.
Our effective tax rate increased to 173.6% of income before income taxes for the
fiscal year ended February 28, 1999 from 38.7% of income for the fiscal year
ended February 28, 1998. These increases resulted from the growth in our taxable
income and an increase in the valuation allowance on our net deferred tax assets
due to uncertainty of realization.
ACCRETION OF MANDATORILY REDEEMABLE PREFERRED STOCK
Accretion of mandatorily redeemable preferred stock of $39,000 in the fiscal
year ended February 28, 1999 was a result of the issuance of mandatorily
redeemable preferred stock in September 1998. All of the outstanding preferred
stock will convert into common stock upon the closing of this offering.
FISCAL YEARS ENDED FEBRUARY 28, 1998 AND 1997
TOTAL REVENUE
Total revenue increased 98.1% to $5.1 million in the fiscal year ended
February 28, 1998 from $2.6 million in the fiscal year ended February 28, 1997.
SOFTWARE AND RELATED PRODUCTS REVENUE
Software and related products revenue increased by 97.1% to $5.1 million in
the fiscal year ended February 28, 1998 from $2.6 million in the fiscal year
ended February 28, 1997. The increase in software and related products revenue
resulted from increasing acceptance of Official Red Hat Linux by technical users
as a viable operating system.
SERVICES AND OTHER REVENUE
Services and other revenue increased to $24,000 in the fiscal year ended
February 28, 1998 from zero in the fiscal year ended February 28, 1997. This
increase resulted from royalty payments received from international
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publishers of products bearing our trademarks in the fiscal year ended February
28, 1998.
COST OF REVENUE
COST OF SOFTWARE AND RELATED PRODUCTS
Cost of software and related products increased 83.5% to $2.2 million in the
fiscal year ended February 28, 1998 from $1.2 million in the fiscal year ended
February 28, 1997. The increase in cost of software and related products
resulted from increased sales of our software and related products. As a
percentage of software and related products revenue, cost of software and
related products decreased to 42.9% in the fiscal year ended February 28, 1998
from 46.3% in the fiscal year ended February 28, 1997. This decrease was due to
growing sales and declining costs on a per unit basis.
GROSS PROFIT
Gross profit increased 110.6% to $2.9 million in the fiscal year ended
February 28, 1998 from $1.4 million in the fiscal year ended February 28, 1997.
As a percentage of total revenue, gross profit increased to 57.1% in the fiscal
year ended February 28, 1998 from 53.7% in the fiscal year ended February 28,
1997.
OPERATING EXPENSES
SALES AND MARKETING EXPENSE
Sales and marketing expense increased 154.8% to $1.3 million in the fiscal
year ended February 28, 1998 from $0.5 million in the fiscal year ended February
28, 1997. As a percentage of total revenue, sales and marketing expense
increased to 24.3% in the fiscal year ended February 28, 1998 from 18.8% in the
fiscal year ended February 28, 1997. These increases resulted from additional
expense incurred due to significantly increasing the number of sales and
marketing personnel, increased costs attributable to cooperative marketing
arrangements with distributors, and higher advertising and tradeshows costs.
RESEARCH AND DEVELOPMENT EXPENSE
Research and development expense increased 177.6% to $0.9 million in the
year ended February 28, 1998 from $0.3 million in the year ended February 28,
1997. As a percentage of total revenue, research and development expense
increased to 17.5% in the fiscal year ended February 28, 1998 from 12.5% in the
fiscal year ended February 28, 1997. These increases in research and development
expense were primarily due to the addition of software engineering and
development personnel in the fiscal year ended February 28, 1998.
GENERAL AND ADMINISTRATIVE EXPENSE
General and administrative expense increased 51.8% to $0.8 million in the
fiscal year ended February 28, 1998 from $0.5 million in the fiscal year ended
February 28, 1997. The increase in general and administrative expense resulted
from the growth in the number of general and administrative personnel. As a
percentage of total revenue, general and administrative expense decreased to
15.5% in the fiscal year ended February 28, 1998 from 20.2% in the fiscal year
ended February 28, 1997. This decrease was due to total revenue increasing at a
higher rate than general and administrative expense.
OTHER INCOME (EXPENSE), NET
Other income (expense), net increased to income of $22,000 in the fiscal
year ended February 28, 1998 from expense of $23,000 in the fiscal year ended
February 28, 1997. This increase in other income (expense), net was due to an
increase in interest income resulting from higher average balances of cash and
cash equivalents and short-term investments and lower interest expense on our
notes payable which were repaid during the fiscal year ended February 28, 1997.
PROVISION FOR INCOME TAXES
Provision for income taxes increased to a provision of $5,000 in the fiscal
year ended February 28, 1998 from zero in the fiscal year ended February 28,
1997. For fiscal years
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ended February 28, 1998 and 1997, a full valuation allowance was provided
against net deferred tax assets due to uncertainty of realization.
QUARTERLY RESULTS OF OPERATIONS
The following table sets forth unaudited quarterly statement of operations
data for each of the five quarters in the period ended May 31, 1999. This
information has been derived from unaudited interim financial statements that,
in the opinion of management, have been prepared on a basis consistent with the
financial statements contained elsewhere in this prospectus and include all
adjustments, consisting only of normal recurring adjustments, necessary for a
fair presentation of the financial information for the periods presented. This
information should be read in conjunction with the financial statements and
notes to those statements included elsewhere in this prospectus.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
---------------------------------------------------------------
MAY 31, AUG. 31, NOV. 30, FEB. 28, MAY 31,
1998 1998 1998 1999 1999
----------- ----------- ----------- ----------- -----------
(IN THOUSANDS, UNAUDITED)
<S> <C> <C> <C> <C> <C>
Revenue:
Software and related products............................. $ 1,374 $ 2,167 $ 2,964 $ 3,508 $ 1,936
Web advertising........................................... -- -- -- -- 80
Services and other........................................ 177 71 360 169 781
----------- ----------- ----------- ----------- -----------
Total revenue........................................... 1,551 2,238 3,324 3,677 2,797
----------- ----------- ----------- ----------- -----------
Cost of revenue:
Software and related products............................. 683 785 1,179 1,366 1,181
Web advertising........................................... -- -- -- -- 123
Services and other........................................ -- -- -- 28 443
----------- ----------- ----------- ----------- -----------
Total cost of revenue................................... 683 785 1,179 1,394 1,747
----------- ----------- ----------- ----------- -----------
Gross profit............................................ 868 1,453 2,145 2,283 1,050
----------- ----------- ----------- ----------- -----------
Operating expense:
Sales and marketing....................................... 382 482 781 1,438 1,629
Research and development.................................. 341 458 624 797 826
General and administrative................................ 214 331 502 437 824
----------- ----------- ----------- ----------- -----------
Total operating expense................................. 937 1,271 1,907 2,672 3,279
----------- ----------- ----------- ----------- -----------
Income (loss) from operations............................... (69) 182 238 (389) (2,229)
----------- ----------- ----------- ----------- -----------
Other income (expense), net................................. 15 13 34 100 140
----------- ----------- ----------- ----------- -----------
Income (loss) before income taxes........................... (54) 195 272 (289) (2,089)
Provision for income taxes.................................. -- 62 153 -- --
----------- ----------- ----------- ----------- -----------
Net income (loss)........................................... $ (54) $ 133 $ 119 $ (289) $ (2,089)
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
Accretion on mandatorily redeemable preferred stock......... -- -- (16) (23) (43)
----------- ----------- ----------- ----------- -----------
Net income (loss) available to common stockholders.......... $ (54) $ 133 $ 103 $ (312) $ (2,132)
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
</TABLE>
The operating results for any quarter are not necessarily indicative of the
operating results for any future period. In particular, due to our limited
operating history and the unpredictability of our industry, our revenue and net
income may fluctuate significantly from quarter to quarter and are difficult to
forecast. We base our current and future expense levels in part on our estimates
of future revenue. Our expenses are to a large extent fixed in the short term.
We may not be able to adjust our spending quickly if our revenue falls short of
our expectations. Accordingly, a revenue shortfall in a particular quarter would
have a disproportionate adverse effect on our net income for that quarter.
Furthermore, we may make pricing, purchasing, service, marketing, acquisition or
financing decisions that could adversely affect our business, operating results
and financial condition.
Our quarterly operating results will fluctuate for many reasons, including:
- our ability to retain existing customers, attract new customers and
satisfy our customers' demand;
- changes in gross margins of our current and future products and services;
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- the timing of our release of upgrade versions of our products;
- introduction of new products and services by us or our competitors;
- changes in the market acceptance of Linux-based operating systems;
- changes in the usage of the internet and online services;
- timing of upgrades and developments in the Linux kernel and other open
source software products;
- the effects of acquisitions and other business combinations, including
one-time charges, goodwill amortization and integration expenses or
difficulties; and
- technical difficulties or system downtime affecting the internet or our
web site.
For these reasons, you should not rely on period-to-period comparisons of
our financial results to forecast our future performance. Our future operating
results may fall below
expectations of securities analysts or investors, which would likely cause the
trading price of our common stock to decline significantly.
LIQUIDITY AND CAPITAL RESOURCES
We have historically derived a significant portion of our liquidity and
operating capital from sales of preferred stock and from cash flow from
operations. At May 31, 1999, cash and cash equivalents totaled $13.9 million, an
increase of $3.9 million as compared to February 28, 1999. The increase in cash
and cash equivalents resulted from $3.2 million of net proceeds from the sale of
our preferred stock, $1.8 million in proceeds from exercise of common stock
options and warrants and $1.0 million from maturities of investment securities,
partially offset by $1.5 million in cash used by operating activities during the
three months ended May 31, 1999.
Cash used by operations of $1.5 million for the three months ended May 31,
1999, resulted primarily from our net loss of $2.0 million, an increase in
accounts receivable of $2.2 million, an increase in inventory of $0.7 million
and deferred initial public offering costs of $0.4 million, partially offset by
an increase in deferred revenue of $3.0 million. The increase in accounts
receivable, inventory and deferred revenue resulted from the release of Version
6.0 Official Red Hat Linux to our distributors in late April 1999. This release
resulted in a significant amount of accounts receivable from distributors at May
31, 1999, due to large shipments of Version 6.0 of Official Red Hat Linux to
distributors from the last week of April through the end of May 1999. The
predominant portion of these outstanding accounts receivable was collected in
June 1999.
Cash provided by investing activities totaled $0.4 million for the three
months ended May 31, 1999 as a result $1.0 million in proceeds received from
maturities of investments partially offset by purchases of equipment of $0.6
million.
Cash generated by financing activities of $5.0 million for the three months
ended May 31, 1999 was comprised of $3.2 million of net proceeds from the sale
of our preferred stock, and $1.8 million in proceeds from exercise of stock
options and warrants.
At February 28, 1999, cash and cash equivalents totaled $10.0 million, an
increase of $8.7 million as compared to February 28, 1998. The increase in cash
and cash equivalents resulted primarily from $1.2 million in cash generated by
operations and $10.1 million of net proceeds from issuance of preferred stock
during the fiscal year ended February 28, 1999. These amounts were partially
offset by $1.9 million of cash used to purchase short-term debt securities, net
of maturities, and $0.7 million of additions to property and equipment.
Cash generated by operations of $1.2 million for the fiscal year ended
February 28, 1999 resulted primarily from an increase in accounts payable and
accrued liabilities of $1.5 million and net noncash
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charges to income of $0.6 million partially offset by our net loss of $0.1
million and an increase in accounts receivable of $0.6 million.
Cash used in investing activities of $2.6 million was used to purchase $1.9
million of short-term debt securities, net of maturities, and office and
computer equipment totaling $0.7 million.
Cash from financing activities totaled $10.1 million in the fiscal year
ended February 28, 1999 as a result of $6.9 million in net proceeds received
from sales of Series B preferred stock in September 1998 and $3.2 million in net
proceeds received from sales of Series C preferred stock in February 1999. We
received an additional $3.2 million in net proceeds from the sale of Series C
preferred stock subsequent to February 28, 1999.
We have experienced a substantial increase in our operating expenses since
our inception in connection with the growth of our operations and staffing and
the expansion of our services operation and web site. Our capital requirements
during the fiscal year ending February 29, 2000 depend on numerous factors
including the amount of resources we devote to:
- fund our domestic and international expansion;
- enhance our REDHAT.COM web site;
- improve and extend our service offerings;
- make possible investments in businesses, products and technologies; and
- expand our sales and marketing programs and conduct more aggressive brand
promotions.
We believe that the net proceeds from this offering, together with our cash
and cash equivalents, short-term investments and cash flow from operations, will
be sufficient to meet our anticipated cash needs for working capital and capital
expenditures for at least the next 12 months, as we are projecting that our
capital needs will be approximately $35 million during this period. We may need
to raise additional funds, however, in order to fund more rapid expansion. We
may seek to sell additional equity or debt securities or to obtain a credit
facility. The sale of additional equity or debt securities, if convertible,
could result in additional dilution to our stockholders. The incurrence of
indebtedness would result in increased fixed obligations and could result in
operating covenants that would restrict our operations. We cannot guarantee that
financing will be available in amounts or on terms acceptable to us, if at all.
RECENT ACCOUNTING PRONOUNCEMENTS
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 133, "Accounting for Derivative Instruments
and Hedging Activities". This statement establishes accounting and reporting
standards for derivative instruments, including certain derivative instruments
embedded in other contracts, and for hedging activities. As issued, this
statement is effective for all fiscal quarters of all fiscal years beginning
after June 15, 1999, with earlier application encouraged. In May 1999, the
Financial Accounting Standards Board delayed the effective date of this
statement for one year, to fiscal years beginning after June 15, 2000. We do not
currently nor do we intend in the future to use derivative instruments and
therefore do not expect that the adoption of Statement of Accounting Standards
No. 133 will have any impact on our financial position or results of operations.
In March 1998, the Accounting Standards Executive Committee of the American
Institute of Certified Public Accountants, issued Statement of Position No.
98-1, "Accounting for the Costs of Computer Software Developed or Obtained for
Internal Use", which provides guidance regarding when software developed or
obtained for internal use should be capitalized. This statement is effective for
transactions entered into in fiscal years beginning after December 15, 1998. We
do not expect that the adoption of this statement will
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<PAGE>
have a material impact on our financial position or results of operations.
In December 1998, the Accounting Standards Executive Committee issued
Statement of Position No. 98-9, "Modification of Statement of Position No. 97-2,
Software Revenue Recognition, with Respect to Certain Transactions". Statement
of Position No. 98-9 amends Statement of Position No. 97-2 to require
recognition of revenue using the "residual method" in circumstances outlined in
Statement of Position No. 98-9. Under the residual method, revenue is recognized
as follows:
- the total fair value of undelivered elements, as indicated by vendor
specific objective evidence is deferred and subsequently recognized in
accordance with the relevant sections of Statement of Position No. 97-2;
and
- the difference between the total arrangement fee and the amount deferred
for the undelivered elements is recognized as revenue related to the
delivered elements.
Statement of Position No. 98-9 is effective for transactions entered into in
fiscal years beginning after March 15, 1999. Also, the provisions of Statement
of Position No. 97-2 that were deferred by Statement of Position No. 98-4 will
continue to be deferred until the date Statement of Position No. 98-9 becomes
effective. We do not expect that the adoption of Statement of Position No. 98-9
will have a significant impact on our results of operations or financial
position.
YEAR 2000 COMPLIANCE
The year 2000 issue refers generally to the problems that some software may
have in determining the correct century for the year. For example, software and
computer systems with date-sensitive functions that are not Year 2000 compliant
may not be able to distinguish whether "00" means 1900 or 2000, which may result
in failures or the creation of erroneous results.
We have defined "Year 2000 compliant" as the ability to:
- correctly handle date information needed for the December 31, 1999 to
January 1, 2000 date change;
- function according to the product documentation provided for this date
change, without changes in operation resulting from the advent of a new
century, assuming correct configuration;
- where appropriate, respond to two-digit date input in a way that resolves
the ambiguity as to century in a disclosed, defined, and predetermined
manner;
- if the date elements in interfaces and data storage specify the century,
store and provide output of date information in ways that are unambiguous
as to century; and
- recognize the year 2000 as a leap year.
In November 1998, we formed a committee consisting of our Chief Financial
Officer, our controller, a financial analyst and a systems administrator, as
part of our effort to perform a coordinated audit of:
- our products;
- the software components and applications with which our products are
bundled; and
- the systems upon which we rely for our internal operations.
PRODUCTS
The committee has tested Version 4.2 and later versions of Red Hat Linux by
accelerating the date within these software programs to December 31, 1999 and
observing which software components failed as the date changed to January 1,
2000. These tests revealed that all of these versions of Red Hat Linux were Year
2000 compliant. In addition, in June 1999 we hired an independent contractor to
test Versions 5.2 and 6.0 of Red Hat Linux for Year 2000 readiness. The
independent contractor certified these products as Year 2000 compliant. In light
of the testing results
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and certification, we do not plan to generate a contingency plan if either of
these products is later found not to be Year 2000 compliant. We have not,
however, tested any products other than Red Hat Linux. The Year 2000 committee
plans to test or have these products tested by the end of November 1999.
If it is later determined that products that we have not tested are not Year
2000 compliant, we believe that we have the resources, either in-house or within
the open source community, to quickly remedy any non-compliant products. If it
is necessary to remedy problems related to the Year 2000 issue, such efforts
could otherwise divert our resources from pursuing our business strategy. In
addition, known or unknown errors or defects in our products could result in
delay or loss of revenue, diversion of development resources, damage to our
reputation, or increased service and warranty costs, any of which could
materially adversely affect our business, operating results or financial
condition. Furthermore, some commentators have predicted significant litigation
regarding Year 2000 compliance issues, and we are aware of such claims and
actions against other software vendors. Because of the unprecedented nature of
this litigation, it is uncertain whether or to what extent we may be affected by
it.
THIRD-PARTY PRODUCTS
We bundle third-party applications and software components with Official Red
Hat Linux. To date, the committee has made no assessment of and has no knowledge
of third-party Year 2000 readiness. We intend to contact these third parties and
remedy problems on a case-by-case basis, as problems arise. Because we believe
that the costs associated with the failure of third-party products will not be
material to our business, results of operations or financial condition, we do
not intend to expend resources to seek out and correct problems before they
arise. Accordingly, it is possible that some of our customers may experience
difficulties related to third-party software, which may affect the performance
of our products and may lead to adverse results such as an unusually high number
of calls to our technical support department or other unusual requests for
information or assistance. Responding to these requests may divert resources
from pursuing our business strategy. Moreover, failure of applications bundled
with our software may reduce the value of our products, decrease or delay
revenues, tarnish our brand, give rise to breach of warranty claims or divert
resources, any of which could materially adversely affect our business, results
of operations and financial condition.
INTERNAL SYSTEMS
We are in the process of identifying and evaluating the Year 2000 compliance
of systems upon which we rely for internal operations such as our computer
hardware, software, web server and other related equipment and systems, such as
phone systems and security systems. In August 1999 we plan to test our internal
systems by simulating a century roll-over. We do not believe that the costs
involved in making our internal systems Year 2000 compliant will be material
because all of our internal mission-critical hardware and enterprise software
vendors and systems are certified Year 2000 compliant. These vendors include
Oracle, Sun Microsystems, Lucent and Cisco. In addition, most of our internal
systems run on Red Hat Linux. Most of our computer hardware is new, but in the
event any of our hardware malfunctions, we will replace it. We do not expect to
incur material costs to replace any such defective hardware.
The lessor of our corporate headquarters has indicated that our offices are
Year 2000 compliant. We currently house substantially all of our communications
hardware and our other computer operations related to our web site on site at
our facilities, although we plan to move these operations to third-party
facilities within the next six months. The owners of facilities we plan to use
for that purpose have also certified to us that all of their systems and
facilities are Year 2000 compliant.
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WORST CASE SCENARIO
We have not tested any of our products other than Red Hat Linux and have not
tested software provided by, nor sought certifications from, third-parties
bundling software with Official Red Hat Linux. Our reasonably likely worst case
Year 2000 scenario would be that these products and bundled software from
third-parties fail in the year 2000, resulting in a decreased demand for our
products and damage to the Red Hat brand. In the event of a Year 2000 failure we
would devote resources to correct it. Because of our skilled in-house developers
and relationships with the open source community and third-parties whose
software we bundle with Red Hat Linux, we believe we will be able to respond
promptly to any failures that occur. The costs of such response and the
diversion of resources, however, could have a material adverse effect on our
business, results of operation and financial condition.
CONTINGENCY PLANS AND EXPECTED COSTS
The committee is in the process of developing further checklists of software
applications to test and systems upon which we rely and, as we deem appropriate,
we will seek certification documents from the developers and providers regarding
Year 2000 compliance of their systems and products. The committee will develop
contingency plans based on the responses regarding its critical systems that it
receives, or does not receive, from its providers and developers. We presently
expect that we will complete this effort in the fall of 1999.
To date, we have not expended a material amount of capital resources on Year
2000 compliance and do not anticipate future expenditures to be material to our
business, results of operations and financial condition. We have not hired
additional personnel to specifically address our Year 2000 compliance issues,
and presently, we do not expect to do so. Through June 30, 1999, we have
incurred approximately $300,000 in costs to make our internal systems Year 2000
compliant. These costs were primarily incurred to update our accounting and
financial management software and systems. The product and testing expenditures
to date relate primarily to on-going salary costs of personnel, including
committee members, participating at various levels in our compliance efforts, as
well as payments of approximately $30,000 to the independent contractor that
tested Versions 5.2 and 6.0 of Red Hat Linux. All costs related to achieving
Year 2000 readiness are being expensed as incurred, unless they relate to the
cost of new software or hardware for our internal systems.
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BUSINESS
RED HAT
We are a leading developer and provider of open source software and
services, including the Red Hat Linux operating system. Our web site,
REDHAT.COM, is a leading online source of information and news about open source
software and one of the largest online communities of open source software users
and developers. In addition to offering extensive content for the open source
community, REDHAT.COM serves as an important forum for open source software
development and offers software downloads and a shopping site. Our broad range
of professional services includes custom development and consulting, technical
support, training and education and hardware certification. We are committed to
serving the interests and needs of open source software users and developers and
to sharing all of our product developments with the open source community.
INDUSTRY BACKGROUND
IMPACT OF THE INTERNET
The internet has emerged as a global communications medium, enabling
millions of people to gather information, communicate and conduct business
electronically. International Data estimates that there were approximately 142
million users of the internet at the end of 1998 and that the number of users
will grow to over 500 million by the end of 2003. In addition, International
Data estimates that worldwide internet commerce revenue will increase from
approximately $50 billion in 1998 to more than $1 trillion in 2003.
The internet's ability to empower customers, reduce transaction costs and
product development times and accelerate the pace of business transactions has
dramatically transformed the competitive landscape of a wide range of
industries. The internet provides customers with a broader selection, increased
purchasing power and unparalleled convenience while enabling businesses to reach
a global audience, increase economies of scale and operate with minimal
infrastructure. The internet has facilitated the emergence of new competitors
and is increasingly affecting the methods by which incumbent competitors sell
goods and services and manage relationships with customers.
For example, in the software industry, the internet is profoundly changing
the way that software is developed and distributed. The internet has enabled
multiple groups of developers to collaborate on specific projects from remote
locations around the globe. Developers can write code alone or in groups, make
their code available over the internet, give and receive comments on other
developers' code and modify it accordingly. The internet has also provided an
avenue not only for less expensive and speedier delivery of code, but also for
support and other online services.
OPEN SOURCE SOFTWARE MOVEMENT
The internet has accelerated the development of open source software. Open
source software has its origins in the academic and research environments and is
based on an open, collaborative approach to the development and distribution of
software. The growth of the internet has greatly increased the scale and
efficiency of open source development through the availability of collaborative
technologies such as e-mail lists, news groups and web sites. These technologies
have enabled increasingly large communities of independent developers to
collaborate on more complex open source projects. An early example of open
source development is the X Windows system, a graphical user interface developed
by the X Consortium. The members of the X Consortium, originally Digital,
Hewlett-Packard, IBM and Sun Microsystems, wanted a common user interface for
their own proprietary operating systems. By openly sharing development ideas and
coding efforts, these companies were able to quickly and cost-effectively
develop a superior user interface.
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Open source software has emerged as a viable alternative to traditional
proprietary software. Under the proprietary model of software development, a
software developer generally licenses to the user only the object or binary
code. Binary code consists of the 1s and 0s that only the computer understands.
By contrast, under the open source development model, the software developer
provides to the user access to both the binary code and the source code. Source
code is the language used by the developers. The principal differentiating
points of open source software include:
- development process--open source software allows a company's in-house
development team to collaborate with a community of independent
developers;
- license terms--under open source licenses, the user has access to both
binary and source code, and the rights to copy, modify, alter and
redistribute the software; and
- shared improvements--under the open source model, the user has ongoing
access to improvements made to the software by others.
We believe open source software offers many potential benefits for software
customers, users and vendors. Customers and users are able to acquire the
software at little or no cost, install the software on as many computers as they
wish, and customize the software to suit their particular needs. In addition,
customers and users can obtain software updates, improvements and support from
multiple vendors, reducing reliance on any single vendor. Vendors are able to
leverage the community of open source developers, allowing them to reduce
development costs and decrease their time to market. Vendors are also able to
distribute their products freely over the internet, enabling them to create
large global user bases quickly.
Participants in open source development can generate revenue in a variety of
ways, including:
- making their own open source products widely available, and then offering
technical support, custom development, and related services to customers;
- using open source products as a means of attracting visitors to their web
sites, where they can earn money from the sale of other products,
services, and advertising; and
- developing brand loyalty and a reputation for quality by providing
technically superior open source software products, which they can
leverage to sell additional products and services to customers.
Just as the open source model has benefited from the success of the
internet, it has also greatly contributed to the internet's success. Open source
software comprises much of the internet's infrastructure, from domain name
server software to web servers and e-mail router software. Open source software
is particularly well-suited to the internet. With access to the source code,
system administrators and developers can collaborate to debug, fix and optimally
configure their software on a real-time basis. This enables them to improve
performance and keep data flowing continually across the internet, minimizing
the disruptions and downtime common with proprietary software.
The following examples demonstrate the prevalence of open source software on
the internet:
- Apache Web Server--based on code originally written at the National Center
for Supercomputing Applications at the University of Illinois at
Champaign-Urbana, is the most common web server in use today according to
a survey conducted by Netcraft.
- Perl--a standard scripting language for Apache servers.
- Sendmail--the internet's standard e-mail routing tool, which we believe
handles a majority of the internet's e-mail traffic.
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One of the better known open source products is the Linux kernel, the engine
of Linux-based operating systems. An operating system is the software that
allows a computer and its various hardware and software components to interact.
An initial goal of the open source software movement was to develop an operating
system that was better, faster and more reliable than the proprietary operating
systems then available. Viewing UNIX as the best commercially-available
operating system, the open source community decided to incorporate the best
design ideas from UNIX. Open source developers rewrote all of the underlying
source code so that it could not be controlled by a single corporation or
individual. By the early 1990s, these efforts had resulted in a number of
significant software initiatives but had fallen short of building a complete
operating system. Still missing from the project was the engine upon which the
new operating system was to run, known as the kernel.
In 1991, Linus Torvalds, a young Finnish developer, supplied a stable and
powerful open source kernel, known as Linux, to run the operating system.
Operating systems based on the Linux kernel are robust and dynamic. Thousands of
developers worldwide continually collaborate on improving Linux-based operating
systems and update them on a regular basis.
Since 1991, the use of Linux-based operating systems has rapidly grown.
According to International Data, Linux-based operating systems represented 17%
of all new license shipments of server operating systems in 1998. Beginning in
1998, a number of major technology industry leaders, including IBM, Intel and
Hewlett-Packard, announced support for Linux-based operating systems. The Linux
kernel and the standards around which it is developed remain under the close
supervision of Linus Torvalds and a small group of kernel developers working
under his leadership.
Some of the benefits enjoyed by users of Linux-based operating systems
include:
- reduced licensing costs;
- flexibility resulting from access to and legal right to modify source
code;
- stability and high performance;
- comprehensive internet support;
- compliance with standards; and
- multi-platform capability.
Despite a strong initial market acceptance of Linux-based operating systems
and other open source products, there exists a number of obstacles to widespread
adoption within the enterprise, including:
- lack of service and support;
- scarcity of applications supporting Linux-based operating systems; and
- lack of well-financed, viable open source industry participants.
The ability of a Linux-based operating system to penetrate large businesses
on an enterprise-wide basis and to gain widespread acceptance as a viable
alternative to operating systems developed under the proprietary software model,
depends, in large part, on the emergence of a proven leader in the open source
community. This open source leader must demonstrate to the business enterprise,
as well as to the community of application developers upon whom the business
enterprise relies, a successful business model and the ability to support and
service its products at a consistently high level.
THE RED HAT SOLUTION
To address the challenges facing the open source software market, our
products and services offer the following features and benefits:
SUPERIOR OPEN SOURCE PRODUCT OFFERINGS
We engineer what we believe to be the most technically advanced open source
operating system, Red Hat Linux. Our software engineers collaborate with
critical open source software development teams working across the internet.
This involvement enables us to remain abreast of technical advances, plans for
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development of new features and timing of releases, as well as other information
related to the development of the Linux kernel and other open source projects.
As a participant in these processes, we are able to react quickly to new
developments and to contribute to the future direction of the Linux kernel and
the open source development paradigm.
We compile and integrate more than 640 separate software packages into Red
Hat Linux, consisting of some of the most technically advanced software products
available, including compilers and web, e-mail, file transfer protocol and file
servers. Red Hat Linux is:
- flexible and scalable--capable of running a single desktop machine or the
entire network of a large business enterprise;
- functional--able to handle discrete or multiple applications being
accessed by multiple users;
- adaptable--allowing the user to modify the software to meet particular
needs and requirements; and
- reliable--constantly monitored and fine-tuned by thousands of developers
worldwide.
These benefits have led many industry analysts to identify Red Hat Linux as
a superior operating system. This recognition has accelerated the deployment of
Red Hat Linux within the business enterprise. According to International Data,
Red Hat Linux accounted for approximately 56% of new license shipments of
Linux-based server operating systems in 1998, or approximately 9% of total new
server license shipments.
In addition to offering technically advanced products, we provide purchasers
of our Official Red Hat Linux with extensive written documentation and limited
installation support. Our team of technical writers works closely with our
software development engineers to prepare manuals and other documentation that
accurately and clearly describe the many features of Red Hat Linux and advise
the user on how to exploit these features. In addition, we make Red Hat Linux
available to users via free download from our web site and other sites across
the internet.
LEADING ONLINE DESTINATION FOR THE OPEN SOURCE COMMUNITY
We have established our web site as a leading online destination related to
the open source movement. We are dedicated to serving the interests and needs of
open source software users and developers online. Our web site is a
comprehensive resource for the latest information related to Linux and other
open source projects. It contains news of interest to open source users and
developers, features for the open source community, software updates and
downloads, a shopping center for our shrink-wrapped products and support
offerings, and a wealth of technical information related to open source
products, including Red Hat Linux. Visitors to our site can organize and
participate in user groups, make available bug fixes and incremental code
improvements and share knowledge regarding the use and development of open
source software.
Our web site had 265,000 unique visitors and approximately 2.5 million page
views during March 1999.
By acting as a clearinghouse of open source and Linux-related information,
and facilitating the interaction of developers, businesses and technology
enthusiasts, our web site has become a community center for the open source
movement.
COMMITMENT TO THE OPEN SOURCE MODEL
Red Hat has fully embraced the open source model. Whereas others have
incorporated certain aspects of the open source software model into their
businesses while retaining various features of the proprietary model, our
product offerings are true open source offerings. We share all of our
developments on and improvements to the Linux kernel and other open source
products with the development community. In this way, we benefit independent
developers by making our products more useful for them in their own
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development projects. In addition, we have aggressively promoted and distributed
our products in the marketplace by making them available free of charge by
download from our web site and other internet sites worldwide, by issuing
thousands of free CD-ROMs containing Red Hat Linux at trade shows and through
direct mailing campaigns, and by providing copies to academic and research
institutions. Furthermore, in addition to the open source software we develop
ourselves, we help fund a broad range of open source software projects and
organizations, including the XFree86 group, the linuxconf open source software
product and the Free Software Foundation.
EXTENSIVE PROFESSIONAL SERVICES
We also offer a broad range of professional services relating to the
development and use of open source products. These services include technical
support, custom development, consulting, training, education and hardware
certification. By servicing Red Hat Linux, we provide our customers and the open
source community with a respected and reliable technology partner, one that is
available to help with the purchase, deployment, customization and maintenance
of open source software solutions. We believe that providing these services and
establishing ourselves as our customers' technology development partner will
allow us to facilitate the widespread adoption of Red Hat Linux as a full scale
enterprise solution.
STRATEGIC ALLIANCES
In an effort to increase the market acceptance of open source software in
general, and the Red Hat Linux operating system in particular, we have
established development, marketing or distribution relationships with leading
technology companies, including Compaq, Dell, Hewlett-Packard, IBM, Intel,
Oracle and Silicon Graphics. In addition, we share our development efforts with
and commit resources to third party developers and vendors in order to expand
the number of applications available for Linux-based operating systems. By
establishing and maintaining these relationships, we are able to increase market
awareness of open source software, gather industry support for our products and
penetrate new markets. See "--Sales, Marketing and Distribution".
STRATEGY
Our objective is to enhance our position as a leading worldwide developer
and provider of advanced, open source products and services, both via
traditional channels and the internet. The key elements of our strategy are:
CONTINUE TO ENHANCE OUR WEB SITE
We are continuing to enhance our web site in an effort to create the
definitive online destination for open source software products, software
updates, news, and other information related to Linux-based operating systems
and other open source projects, and to provide advertisers with a large and
technically sophisticated audience. At REDHAT.COM, people from around the world
will be able to obtain updates to open source software, purchase a wide array of
open source products and services, access and copy code for their own
programming efforts, read news related to topics of interest to the community
and interact with other community members. New features we anticipate adding to
our web site include:
- software update notification;
- automatic software updating for those who want it;
- registries and hosting of open source web sites and projects;
- open source classifieds (including products for sale and employment
listings);
- event calendars; and
- virtual trade shows.
By adding these features to our web site, we believe that our visitors will
continue to visit on a regular basis, and that we will attract an increasing
number of new visitors. In addition, we believe that these new features and
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offerings will keep visitors on our site for longer periods of time, which we
believe will be crucial to our ability to generate significant advertising
revenue.
EXPAND SERVICE CAPABILITIES TO ADDRESS THE ENTERPRISE NEEDS OF LARGE
CORPORATIONS
We believe that we must expand our services capabilities to address the
market need for quality custom engineering and development. We are currently
expanding our professional services organization to enhance our ability to
provide such services. Between March 1, 1998 and June 30, 1999 we added 23
people to our professional services organization. We believe that as our user
base grows, more of our customers, particularly our larger customers, will look
to us to help them customize their operating systems to perform optimally within
their particular computing environments. We expect that many of our larger
customers will also expect us to assume the role of their technology partner,
and perform on-site consulting services such as large-scale system assessments
and enterprise-wide system enhancements. We believe that by increasing our
capacity to offer such services, we will be able to significantly increase our
services revenue and establish ourselves as the premier open source service
provider.
INCREASE MARKET ACCEPTANCE OF OPEN SOURCE SOFTWARE
Although recent years have seen a substantial increase in the market
acceptance of Linux-based operating systems and other open source software, we
intend to promote further acceptance of open source software through a variety
of means, including strengthening our existing alliances with other information
technology companies and by establishing new alliances. The strength of these
alliances is crucial to the expansion of the open source community, the
technical advancement and widespread distribution of open source products and
the development of third party applications suitable for Linux-based operating
systems.
By aligning ourselves with companies widely regarded as producing high
quality and highly reliable software developed under the traditional software
development model, we expect to bridge the gap between the open source community
and those customers who are currently skeptical or unaware of the benefits of
open source software. We believe that by continuing to collaborate with
industry-leading information technology companies, we will be able to further
improve the performance and features of Red Hat Linux and other open source
software products. Although we intend to increase our own engineering and
development efforts, we believe that by entering into and maintaining strategic
relationships with other market-leading companies, we will ensure that Red Hat
Linux continues to develop technically, and that such development is compatible
with the technological innovations of other key vendors in our industry.
By entering into additional strategic distribution relationships with major
distributors, retail outlets, original equipment manufacturers, and value-added
resellers worldwide, we intend to make Red Hat Linux and other open source
products more widely available. In order to support and develop leads for our
indirect distribution channels, we plan to expand our field sales and support
staff significantly. In addition, we expect to continue to share our development
efforts with and commit additional resources to applications developers and
vendors in an effort to increase the third-party applications offerings that
will run on Red Hat Linux. Third-party applications currently available for
Linux-based operating systems include desktop office productivity tools from
Applix, Corel and Star Division and enterprise software applications from IBM,
Oracle and SAP.
Additional means of increasing the market acceptance for Linux-based
operating systems and other open source software include expanding our
international presence, broadening our services offerings and publicizing
success stories. We have only recently commenced operations in Europe, and while
we have a significant installed base
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of international users, we intend to increase our overseas presence in the near
future by establishing additional foreign offices or subsidiaries. In addition,
we intend to expand our services offerings, including training, consulting and
related services that customers have come to expect from information technology
providers, which will increase their confidence in open source products and
providers. Finally, we will continue to publicize, to the extent possible,
success stories of customers who have found open source products to be more
valuable than restrictive, proprietary products.
CONTINUE TO INVEST IN THE DEVELOPMENT OF OPEN SOURCE TECHNOLOGY
We intend to continue to invest significant resources in the development of
new open source technology, capitalizing on our extensive experience working
within the open source model. We expect this continued investment to take the
form of increased expenditures on internal development efforts, including our
Red Hat Advanced Development Laboratory, as well as continued funding of
third-party open source projects. We also plan to continue our financial support
of the development efforts of many of the top-tier engineers in the open source
community. This support will be directed towards an array of projects, ranging
from the development of ease of use features, which we believe will take Red Hat
Linux from the server to the desktop, to the design of new networking and
scalability features, which are expected to make Red Hat Linux more attractive
as a server operating system. In particular, we are currently exploring the
possibility of establishing a foundation to support the development of open
source software. We would fund this foundation with cash, stock or a combination
thereof. We expect that, through these efforts, we will be able not only to
foster the advancement of open source technology, but also to enhance and
maintain our relationships within the open source community.
MAINTAIN AND CONTINUE TO ENHANCE THE
RED HAT BRAND
We believe that continuing to build the Red Hat brand is vital to the
expansion of our customer base and the maintenance of the energy of the current
open source community. We intend to continue to aggressively promote our web
site as the definitive source for open source products, services, resources and
other information. Another component of our brand enhancement strategy is to
expand our use of aggressive public relations campaigns by continuing to work
with the media to educate the public on the benefits of open source software. In
addition, we expect to continue our pursuit of tightly-focused advertising
campaigns, both in computer related publications and in general purpose media,
in order to attract new users to Red Hat Linux and open source software.
Moreover, we also intend to continue to devote substantial engineering resources
to open source development projects and to otherwise demonstrate our commitment
to the open source philosophy. Through these measures, we intend to build the
Red Hat brand into the preeminent symbol of quality for open source software.
PRODUCTS AND SERVICES
We are a leading provider of open source software products and services. Our
product offerings include Red Hat Linux and related tools, documentation,
manuals and general merchandise. Our professional services offerings,
principally directed towards our larger corporate customers and strategic
partners, include technical support, training and education, consulting and
custom development and hardware certification.
RED HAT LINUX AND RELATED SOFTWARE
OFFICIAL RED HAT LINUX 6.0. Official Red Hat Linux is our principal product.
We first released Official Red Hat Linux in October 1994, and began shipping the
latest release, Version 6.0, in May 1999. Official Red Hat Linux is available
for the Intel, Sun SPARC and Compaq Alpha platforms. Official Red Hat
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Linux provides everything the user needs to perform a wide variety of server
functions, including setting-up a web, e-mail, file or print server as well as
using his computer as a general purpose desktop workstation to perform virtually
any computing function. Official Red Hat Linux comes with a number of
third-party applications including office productivity and e-commerce
applications, as well as comprehensive user manuals and limited installation
support. The suggested retail price for Official Red Hat Linux is $79.95.
Examples of the components included within the 573 megabytes of code that
comprise Red Hat Linux 6.0 are:
<TABLE>
<CAPTION>
COMPONENT FUNCTION
- ---------------------------------------------- --------------------------------------------
<S> <C>
Linux Kernel (Version 2.2).................... Core of the operating system
X Windows System.............................. Graphical layer
GNOME......................................... Graphical desktop user interface
Gtk........................................... Graphical development libraries
Netscape Communicator......................... Web browser
Apache........................................ Web server
Sendmail...................................... E-mail routing software
Perl.......................................... High-level programming language
Efax.......................................... Fax utility
Pilot Link.................................... Palm Pilot-Registered Trademark-
synchronization
GNOME PIM..................................... Personal Information Manager
Howto Greek (and other languages)............. Help files translated into Greek (and other
languages)
RPM........................................... Manages the various software packages
All other components.......................... Libraries, tools, games and other integrated
applications
</TABLE>
Other Red Hat products include:
RED HAT POWERTOOLS: Red Hat Powertools is a collection of open source tools
and applications that run on top of Red Hat Linux. The suggested retail price
for Powertools is $39.95.
RED HAT LINUX CORE: Red Hat Linux Core, consisting of Official Red Hat
Linux 6.0 and the Official Red Hat Linux Installation Guide, is designed for
developers and experienced users of Linux-based operating systems. Red Hat Linux
Core does not include installation support or third-party applications. The
suggested retail price for Red Hat Linux Core is $39.95.
EXTREME LINUX: Extreme Linux, popular among students and researchers, is
designed to run on multiple computers using parallel processing. The open source
software included in this product was developed in part by the National
Aeronautics and Space Administration. Extreme Linux does not include user
manuals or installation support. The suggested retail price for Extreme Linux is
$29.95.
RED HAT SECURE WEB SERVER: Red Hat Secure Web Server combines the Apache
open source web server with certain cryptography software we licensed from RSA
Data Security, Inc. to create a secure web server suitable for conducting secure
transactions via the internet. Red Hat Secure Web Server won a "Best of Show"
award at the 1998 Networld + Interop conference. Red Hat Secure Web Server
cannot be downloaded from our web site and is available only in the U.S. and
Canada due to export controls on encryption software. The suggested retail price
for Red Hat Secure Web Server is $99.95.
Our products are also available for free download via the internet from
REDHAT.COM and other web sites worldwide, except for Red Hat Secure Web Server
and the third-party
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application software that is sold with Official Red Hat Linux. We encourage our
customers to download Red Hat Linux and our other software products. By allowing
users to download our software free of charge, we are able to strengthen the Red
Hat brand and increase our installed base of users, at no incremental cost to
us. Customers who obtain Red Hat Linux in this way receive substantially the
same operating system software as is included in our shrink-wrapped packages,
but do not receive installation support, documentation and other additional
features.
REDHAT.COM
As of June 30, 1999 we had 21 professionals focused on the development and
maintenance of our REDHAT.COM web site. REDHAT.COM offers users access to broad
and authoritative content on open source software including news, documentation,
educational materials and case studies. This content is directed at a wide
spectrum of open source software users, from system administrators to developers
to academics. We also offer extensive features for the open source community,
software updates and downloads and a shopping center for our shrink-wrapped
products and support offerings.
We intend to also offer the following benefits via our web site to our
partners and users:
- Personalization--users will be able to register on the site and select
custom presentations of information that are specifically tailored to
their needs. These presentations, which will be known as MY.REDHAT.COM,
will filter news and information (according to user-specified criteria),
promote various features of the site likely to be of interest to a
specific user and notify the user by e-mail of new content and upgrades.
- Advertising and sponsorships--the REDHAT.COM audience is highly focused
and technically sophisticated, representing an attractive target market of
computing professionals for advertisers. We offer a number of advertising
and sponsorship programs to our partners and others seeking to reach this
market.
- Content subscriptions--we intend to make special market reports and data
and access to real-time support available to our users on an annual
subscription basis. By subscribing to our site, our customers will also be
able to purchase additional features and services such as online training
and certification and remote software maintenance packages.
- Commerce--we intend to build the REDHAT.COM store into the most
comprehensive open source shopping resource for corporate enterprise
buyers. Offerings and upsell opportunities will be presented throughout
the site in a context-relevant manner.
- Licensing--we intend to license our content to other content providers,
thereby generating additional traffic, extending the Red Hat brand and
increasing revenue.
PROFESSIONAL SERVICES
Although we have not generated significant revenue to date from our
professional services, we have recently significantly expanded the scope of our
service offerings and expect them to generate significant revenue in the future.
SUPPORT AND MAINTENANCE. Customers who purchase our Official Red Hat Linux
Version 6.0 product are entitled to 30 days of telephone installation support or
90 days of e-mail installation support at no additional charge. Customers
seeking additional technical support may purchase telephone support agreements
from us ranging in price from $995 for up to three incidents to $60,000 for
24-hour-a-day unlimited support for one year. We have a highly-trained and
skilled staff of technical support engineers to provide these services to our
customers. In addition, we maintain relationships with several third-party
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support providers in order to enhance and expand our technical support
capabilities.
TRAINING AND EDUCATION. We provide training and educational programs to
those customers who want to learn how to optimize their use of Red Hat Linux.
The most popular of these programs is the "Red Hat Certified Engineer" course
that we offer at our corporate offices. This week-long course, taught by Red Hat
instructors and priced at approximately $2,500, gives a comprehensive overview
of the use of Red Hat Linux. We also conduct on-site training for customers. We
anticipate that we will work with third-party training and educational program
providers to develop and offer additional training courses on a variety of
topics related to Red Hat Linux and open source software.
CONSULTING AND CUSTOM DEVELOPMENT. We offer specific consulting and custom
development services on an individualized basis. We have performed such services
related to the optimization of Red Hat Linux when used in conjunction with
certain hardware products. We intend to expand our consulting and custom
development capabilities in the near future.
HARDWARE CERTIFICATION. We perform testing and certification services for
hardware vendors seeking to market their products to Red Hat Linux users.
Hardware vendors submit their products to us and, in exchange for a fee, we test
the hardware to determine whether it is compatible with Red Hat Linux. Products
meeting our performance criteria are certified as Red Hat Linux compatible.
Companies for which we have performed such services include Dell, IBM and
Toshiba.
PRODUCT AWARDS
Red Hat Linux has won numerous awards, including:
- Operating System Product of the Year, InfoWorld magazine, 1996, 1997 and
1998
- Productivity Award, Software Development Magazine, 1997
- "Jolt" Product Excellence Award, Software Development Magazine, 1998
- Reader's Choice Award, Linux Journal, 1997
- Just PLAIN COOL Award, Australian Personal Computing Magazine, 1998
- Environment/Desktop finalist, Ziff-Davis European Excellence awards, 1997
- Editor's Choice Award, Australian Personal Computing Magazine, 1998
PRODUCTION AND FULFILLMENT
We outsource the production, packaging and order fulfillment of our products
to third parties when it is cost effective to do so. To the extent possible, we
limit our internal production activities to such tasks as quality inspection and
testing. We currently have production arrangements with JVC Disc America Co.,
Webcom, Inc. and Brightstar Services, and order fulfillment arrangements with
JVC. We believe that our existing production arrangements are sufficient to
accommodate potential increases in sales volume for the foreseeable future.
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CUSTOMERS AND APPLICATIONS
CUSTOMERS
Our customers range from individuals using our products for a wide variety
of personal and professional purposes to multinational Fortune 500 companies,
government agencies, and research and academic institutions. The following is a
partial list of customers which have purchased products and services from us in
the past, but which may not necessarily be ongoing customers. These customers
have purchased products and services ranging from a $24 technical manual to over
$23,000 in training and support services:
<TABLE>
<CAPTION>
CORPORATE GOVERNMENT RESEARCH / ACADEMIC
- --------------------------- ------------------------ -------------------------
<S> <C> <C>
AT&T Canadian Department of Carnegie Mellon
University
Bell Atlantic Human Resources
Boeing Cern Laboratories
Burlington Coat Factory Internal Revenue Service
Cisco Systems Fermi National
Accelerator
GTE NASA Laboratory
Hewlett-Packard
Hughes Telecommunications Waco Public Schools Harvard-Smithsonian
IBM Astrophysical Observatory
Intel
Lucent Technologies University of North
Carolina
Nortel
Sony Electronics University of Rochester
</TABLE>
The following case studies provide examples of the manner in which our
products are used:
- The Exploration Department of Amerada Hess, a Fortune 500 global oil
company, was frustrated with the cost and difficulty of upgrading its
supercomputing hardware. In 1998, the Exploration Department replaced
approximately $2.5 million of its supercomputing hardware with a $420,000
cluster of more than 90 servers running Red Hat Linux. The department uses
this cluster to identify potential offshore oil and gas reservoirs using
three-dimensional modeling software.
- Garden Grove, California, a city with a population of 153,000, runs its
government and public services entirely on Red Hat Linux. Since 1994,
Garden Grove has not had a computer-related interruption in service for
any department, including its police department.
THIRD-PARTY APPLICATIONS
Some of the third party applications that are included in Red Hat Linux are:
- Apache Web Server;
- Netscape Navigator and Communicator internet browsers;
- file transfer protocol servers;
- e-mail routing software;
- GNU C and C++ computer language compilers and debuggers;
- editors;
- databases; and
- games.
Some of the stand-alone third-party applications that are currently
available to users of Linux-based operating systems are:
- Oracle, Informix and IBM databases;
- Computer Associates UNICENTER network control software;
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- Lotus Domino Notes Server;
- Corel WordPerfect;
- Applixware Office Suite;
- Star Office Suite;
- NEXS Spreadsheet; and
- MetroWerks Rapid Application Development tools.
SALES, MARKETING AND DISTRIBUTION
SOFTWARE PRODUCTS AND SERVICES
We sell our products and services worldwide through direct marketing and
telesales campaigns and our web site, and indirectly through our distributors,
retailers, catalogs and original equipment manufacturers. Our direct sales force
of 10 individuals as of June 30, 1999, is dedicated to increasing worldwide
sales through our retail, distribution and original equipment manufacturers
channels. As of June 30, 1999, our indirect distribution channel was composed of
five distributors, over 500 retailers and 12 original equipment manufacturers.
We have recently begun to focus our sales efforts more aggressively on the
business enterprise market.
Our two largest distributors are Ingram Micro and Frank Kasper & Associates.
Ingram Micro, which began distributing our products during the fiscal year ended
February 28, 1999, accounted for approximately 34% of our total revenue during
that fiscal year. Frank Kasper & Associates accounted for approximately 26% of
our total revenue for the fiscal year ended February 28, 1998 and 20% for the
fiscal year ended February 28, 1999.
Our agreements with our distributors typically are not exclusive, have no
stated minimum purchase or license obligations and may be terminated by either
party without cause. We believe that in the event of the termination of our
relationship with one or more of our indirect channel partners, we could enter
into replacement agreements with new partners. However, the failure to replace
these partners with distributors of equal marketing capabilities and reputation
could have a material adverse effect on our business, operating results and
financial condition.
We permit our original equipment manufacturers to distribute Red Hat Linux
with their own hardware in exchange for royalty payments to us. We currently
have original equipment manufacturer agreements in place with Dell, Silicon
Graphics and others. These agreements are not exclusive, have no stated minimum
purchase or license obligations, and generally may not be terminated prior to
the expiration of their terms which, in the case of Dell, is one year and, in
the case of Silicon Graphics, is an initial term of one year, renewable for two
additional one-year terms.
We have established joint marketing relationships with a number of leading
technology companies including Compaq, Hewlett-Packard, IBM, Intel and Oracle.
These agreements have one- or two-year terms and, with the exception of the
Hewlett-Packard and Oracle agreements, may be terminated prior to the expiration
of their terms by either party with prior notice.
Our direct marketing efforts support our sales and distribution efforts
through participation in industry trade shows, targeted advertising, channel
sales programs, public relations campaigns, retail promotions, customer surveys
and the promotion of our products through our web site. In addition, we offer
our software products for free download from REDHAT.COM and other internet sites
worldwide.
REDHAT.COM
We have a team of professionals dedicated to selling advertising on our web
site. Though these sales have been insignificant to date, we expect to generate
significant revenue from the sale of advertising and sponsorships in the future.
COMPETITION
In the market for operating systems, we compete with a limited number of
large and well-established companies that have
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significantly greater financial resources, larger development staffs and more
extensive marketing and distribution capabilities. These competitors include
Microsoft, Novell, IBM, Sun Microsystems and The Santa Cruz Operation, all of
which offer hardware-independent multi-user operating systems for Intel
platforms, and AT&T, Compaq, Hewlett-Packard, Olivetti and Unisys, each of
which, together with IBM and Sun Microsystems, offers its own version of the
UNIX operating system. Many of these competitors bundle competitive operating
systems with their own hardware offerings, thereby making it more difficult for
us to penetrate their customer bases.
In the newer and rapidly evolving Linux-based operating system market, we
compete with a number of well-respected vendors and development projects. These
competitors have established and stable customer bases and continue to attract
new customers. We also compete for services revenue with a number of companies
that provide technical support and other professional services to users of
Linux-based operating systems, including some original equipment manufacturers
with which we have agreements. Many of these companies have larger and more
experienced services organizations than we do currently. In addition, we face
potential competition from several companies with larger customer bases and
greater financial resources and name recognition than we have, such as Sun
Microsystems, Corel Corp. and Cygnus Solutions, each of which has indicated a
growing interest in the Linux-based operating systems market.
The Linux-based operating systems market is not characterized by the
traditional barriers to entry that are found in most other markets, due to the
open source nature of our products. For example, anyone can copy, modify and
redistribute Red Hat Linux themselves. Accordingly, it is possible that new
competitors or alliances among competitors may emerge and rapidly acquire
significant market share.
We believe that the major factors affecting the competitive landscape for
our products include:
- name and reputation of vendor;
- product performance, functionality and price;
- strength of relationships in the open source community;
- availability of user applications;
- ease of use;
- networking capability;
- breadth of hardware compatibility;
- quality of support and customer services;
- distribution strength; and
- alliances with industry partners.
Although we believe that we compete favorably with many of our competitors in a
number of respects, including product performance, functionality and price,
networking capability, and breadth of hardware compatibility, we believe that
many of our competitors enjoy greater name recognition, have superior
distribution capabilities and offer more extensive support services than we
currently do. In addition, there are significantly more user applications
available for competing operating systems, such as Windows NT and UNIX, than
there are for Linux-based operating systems. An integral part of our strategy in
the near future, however, is to address these shortcomings by, among other
things, strengthening our existing strategic relationships and entering into new
ones in an effort to enhance our name recognition, expand our distribution
capabilities and attract more attention to the open source movement, which in
turn should create additional incentives for software developers to write more
applications for Red Hat Linux.
In the market for advertising revenue, we will compete with other online
content providers and traditional forms of media such as newspapers, magazines,
radio and television. We believe that the principal
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<PAGE>
competitive factors in attracting advertisers include the amount of traffic on
REDHAT.COM, brand recognition, customer service and support, the demographics of
our users and visitors, our ability to offer targeted audiences and the overall
cost-effectiveness of the advertising medium that we offer.
SOFTWARE ENGINEERING AND DEVELOPMENT
We have invested, and intend to continue to invest, significant resources in
product and technology development. We focus and modify our product development
efforts based on the needs of users and changes in the marketplace. We are
currently focusing our development efforts on improving the Linux kernel, as
well as commercializing our software innovations into new products and product
enhancements that are easier to use and provide greater functionality.
Our software engineers have contributed to the development and maintenance
of some of the most important components of the Red Hat Linux operating system,
including the installation program and the package management program. The
installation program provides users with a single method to install the hundreds
of separate software programs that are included with Red Hat Linux so that from
the user's perspective, the hundreds of programs appear as one. This simplified
process sharply reduces the time and effort required to install a Linux-based
operating system, as compared to the alternative of gathering the hundreds of
programs one by one via the internet. The installation program provides default
settings for the user depending upon whether the user wishes to use Red Hat
Linux as a server operating system or as a workstation operating system. The
installation also provides advanced users with the ability to customize the
programs that are installed, allowing for significant flexibility and control
over the operating system. The installation also automatically detects the type
of hardware that comprises the user's computer, in order to ensure that all
programs necessary for Red Hat Linux to work on the hardware are properly
installed.
Our software development engineers perform extensive testing of Red Hat
Linux to ensure that it is properly assembled and works as a coherent whole from
the user's perspective. We use industry standard methods of quality assurance
testing to ensure that Red Hat Linux is solidly engineered and ready for use by
our customers when shipped. We also operate an extensive beta testing program
for Red Hat Linux. Under this beta testing program, we post a beta or test
version of the operating system on the internet. Developers and users around the
world then suggest improvements and identify bugs. Each suggestion is circulated
over the internet in an attempt to encourage others to assist in the programming
of a solution. In this way, Red Hat Linux users are treated as co-developers.
Bug fixes and enhancements are tested by other users and our engineers, and when
corrected, added to the next release. When the beta version is viewed as stable
and complete, it becomes the next production version, and a new beta cycle
begins.
Our web development team consists of engineers with considerable experience
in developing scalable web-based applications. We continue to develop
applications on REDHAT.COM for user registration, commerce, and content
management and publication. We rigorously test these programs and have built in
the software necessary to ensure high quality visits to our web site.
Most of our software engineering and development work takes place at our
headquarters. As of June 30, 1999, we employed 53 individuals in our engineering
group, consisting of 22 software engineers, including several of the top Linux
kernel developers in the world, 21 web design and development professionals, 5
quality assurance engineers and 5 documentation specialists.
INTELLECTUAL PROPERTY
Red Hat Linux has been developed and made available for licensing under the
GNU General Public License and similar licenses. These licenses generally permit
anyone to copy, modify and distribute the software, subject only to the
restriction that any resulting
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<PAGE>
or derivative work is made available to the public under the same terms.
Therefore, although we retain the copyrights to the code that we develop
ourselves, due to the open source nature of our software products and the
licenses under which we develop and distribute them, our most valuable
intellectual property is our collection of trademarks. We rely primarily on a
combination of trademarks and copyrights to protect our intellectual property.
We also enter into confidentiality and nondisclosure agreements with our
employees and consultants, and generally control access to and distribution of
our documentation and other proprietary information.
We pursue registration of some of our trademarks in the United States and in
other countries. We have registered the trademark "Red Hat" in the United States
and have registrations pending in the Australian, Canadian and European Union
trademark offices. We have registered the Red Hat "Shadow Man" logo in the U.S.,
European Union and Australia and have registrations pending for it in the
Canadian trademark office.
Despite our efforts to protect our trademark rights, unauthorized third
parties have in the past attempted and in the future may attempt to
misappropriate our trademark rights. We are currently investigating possible
infringement claims against a third party in France whom we believe has
misappropriated our tradename and trademarks. We cannot be certain that we will
succeed in preventing the continued misappropriation of our tradename and
trademarks in these circumstances or that we will be able to prevent this type
of unauthorized use in the future. The laws of some foreign countries do not
protect our trademark rights to the same extent as do the laws of the United
States. In addition, policing unauthorized use of our trademark rights is
difficult, expensive and time consuming. The loss of any material trademark or
trade name could have a material adverse effect on our business, operating
results and financial condition.
Although we do not believe that our products infringe the rights of third
parties, third parties have in the past asserted, and may in the future assert
infringement claims against us which may result in costly litigation or require
us to obtain a license to third-party intellectual rights. There can be no
assurance that such licenses will be available on reasonable terms or at all,
which could have a material adverse effect on our business, operating results
and financial condition.
EMPLOYEES
As of June 30, 1999, we had a total of 140 employees. Of the total
employees, 53 were in software engineering, 35 in sales and marketing, 32 in
customer service and technical support and 20 in finance and administration. Our
future success will depend in part on our ability to attract, retain and
motivate highly qualified technical and management personnel, for whom
competition is intense. From time to time we also employ independent contractors
to support our professional services, product development, sales, marketing and
business development organizations. Our employees are not represented by any
labor union and are not organized under a collective bargaining agreement, and
we have never experienced a work stoppage. We believe our relations with our
employees are good.
FACILITIES
Our headquarters are currently located in a leased facility in Durham, North
Carolina, consisting of approximately 51,800 square feet under a five year lease
that will expire on January 14, 2004. The annual rental expense under this lease
is approximately $900,000. We believe that additional space will be required as
our business expands and will be available on acceptable terms.
LEGAL PROCEEDINGS
We are not a party to any material legal proceedings. We may from time to
time become a party to various legal proceedings arising in the ordinary course
of our business.
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MANAGEMENT
EXECUTIVE OFFICERS AND DIRECTORS
The following table sets forth the executive officers, directors and key
employees of Red Hat, their ages and the positions held by them with Red Hat as
of July 31, 1999:
<TABLE>
<CAPTION>
NAME AGE POSITION
- ---------------------------------------------------- --------- ----------------------------------------------------
<S> <C> <C>
EXECUTIVE OFFICERS AND DIRECTORS
Robert F. Young..................................... 45 Chief Executive Officer and Chairman of the Board of
Directors
Matthew J. Szulik................................... 42 President and Director
Marc Ewing.......................................... 30 Executive Vice President, Chief Technology Officer
and Director
Timothy J. Buckley.................................. 48 Senior Vice President and Chief Operating Officer
Manoj K. George..................................... 32 Chief Financial Officer, Director of Administration
and Treasurer
Tom Butta 42 Chief Marketing Officer
David G. Shumannfang................................ 31 Counsel and Secretary
Frank Batten, Jr. (1)(2)............................ 40 Director
William S. Kaiser (1)(2)............................ 44 Director
Eric Hahn (1)(2).................................... 39 Director
KEY EMPLOYEES
Erik W. Troan....................................... 25 Director of Engineering
Donald J. Barnes.................................... 26 Director of Technical Projects
Theresa A. Williams-Spangler........................ 41 Business Unit Leader--Sales
Dr. Charles A. Coleman, Jr.......................... 53 Director of Information Services
Matthew Butterick................................... 28 Director of Internet Business
Colin Tenwick....................................... 39 General Manager for European Operations
Carolyn Sparano..................................... 36 Director of Services
</TABLE>
- ------------------------
(1) Member of Compensation Committee.
(2) Member of Audit Committee.
ROBERT F. YOUNG co-founded Red Hat and served as its President and a
Director from its inception until November 1998. In November 1998, he was
elected to his current positions as Chief Executive Officer and Chairman of the
Board of Directors.
MATTHEW J. SZULIK has served as President of Red Hat since November 1998 and
a Director since April 1999. Mr. Szulik also served as Chief Operating Officer
of Red Hat from November 1998 to April 1999. Prior to joining Red Hat, from
September 1997 to October 1998, Mr. Szulik served as President of Relativity
Technologies, a computer software company. From February 1996 to May 1997, Mr.
Szulik served as President of Sapiens International, a computer software
company. Prior to that, from January 1993 to December 1995, he served as Senior
Vice President in charge of sales and marketing for MapInfo Corp., a computer
software company.
MARC EWING co-founded Red Hat and has served as its Executive Vice President
and Chief Technology Officer and as a Director since its inception. Mr. Ewing
participated in the design and development of Red Hat Linux and founded Red Hat
Advanced Development Laboratories to develop open source graphical desktop
applications for Linux in cooperation with the open source development
community.
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Prior to founding Red Hat, for various periods from January 1991 to August 1992,
Mr. Ewing worked as a systems programmer for IBM.
TIMOTHY J. BUCKLEY has served as Senior Vice President and Chief Operating
Officer of Red Hat since April 1999. Prior to joining Red Hat, from October 1997
until April 1999, Mr. Buckley was Senior Vice President of Worldwide Sales at
Visio Corp., a business software company. Mr. Buckley joined Visio in November
1993 and served as Visio's Vice President of Worldwide Sales until his promotion
in October 1997.
MANOJ K. GEORGE has served as Red Hat's Chief Financial Officer and
Treasurer since May 1998. From May 1997 to the present, he has held the position
of Director of Administration, and from May 1997 to May 1998 he served as Red
Hat's Controller. From November 1994 to May 1997, Mr. George, a certified public
accountant, served, first as a staff accountant, then as a senior accountant
with a regional accounting firm.
TOM BUTTA has served as Red Hat's Chief Marketing Officer since July 1999.
Prior to joining Red Hat, from July 1996 to July 1999, Mr. Butta served as Chief
Executive Officer of FGI, Inc., a marketing, research and advertising
communications firm. From January 1995 until June 1996, he served as Chief
Executive Officer of FGI New York, Inc., a marketing, research and advertising
communications firm. Prior to that, Mr. Butta was Chief Executive Officer of
Christopher Vincent, Inc., a marketing firm, from January 1989 to December 1994.
DAVID G. SHUMANNFANG has served as Counsel of Red Hat since October 1996 and
Secretary of Red Hat since April 1997. From August 1993 to May 1996, Mr.
Shumannfang earned his Juris Doctor from the University of North Carolina at
Chapel Hill School of Law. Mr. Shumannfang is a member of the North Carolina
State Bar.
FRANK BATTEN, JR. has served as a Director of Red Hat since August 1997. Mr.
Batten is currently Chairman of Landmark Communications Inc., a media company,
and has served in that position since January 1998. Prior to that, Mr. Batten
served Landmark Communications as its Executive Vice President, Corporate
Development from October 1995 to January 1998. From June 1991 to October 1995,
Mr. Batten was President and Publisher of the Virginian Pilot, a newspaper
division of Landmark Communications.
WILLIAM S. KAISER has served as a Director of Red Hat since September 1998.
Mr. Kaiser has been employed by Greylock Management Corporation, a venture
capital firm, since May 1986 and has been a general partner of the Greylock
Limited Partnerships since January 1988. Mr. Kaiser is also a director of Open
Market Inc., Clarus Corporation and Student Advantage, Inc.
ERIC HAHN has served as a Director of Red Hat since April 1999. Mr. Hahn is
a founding partner of Inventures Group, a leading "mentor investment" venture
capital firm. He served as Executive Vice President and Chief Technology Officer
of Netscape from November 1996 until June 1998. Prior to serving as Netscape's
Chief Technology Officer, from November 1995 to November 1996, Mr. Hahn was
general manager of Netscape's Server Products Division, overseeing product
development for Netscape's enterprise, internet and extranet servers. Mr. Hahn
joined Netscape following its acquisition of Collabra Software, Inc., which Mr.
Hahn founded in February 1993.
ERIK W. TROAN has served as Red Hat's Director of Engineering since February
1999. Prior to that, between May 1995 and February 1999, he served as Chief
Developer at Red Hat. He is the co-author of LINUX APPLICATION DEVELOPMENT, a
book covering mid-level programming on the Linux operating system and from 1995
to 1996, was a regular columnist for the X Journal Magazine, covering free
software topics.
DONALD J. BARNES has served Red Hat as Director of Technical Projects since
February 1999. From November 1997 to February 1999, he served as Red Hat's
Development Manager of Quality Assurance
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<PAGE>
and from May 1995 to November 1997 he served as a System's Engineer for Red Hat.
From May 1994 to May 1995, Mr. Barnes was a Systems Engineer for Northern
Telecom Limited.
THERESA SPANGLER has served as Business Unit Leader--Sales for Red Hat since
February 1999. Prior to joining Red Hat, from October 1997 to February 1999, she
served as Vice President of Sales and Marketing at Technauts, Inc., a software
company. From December 1991 to March 1997, Ms. Spangler served as Senior
Territory Manager for PictureTel Corp., a video conferencing equipment
manufacturer.
CHARLES A. COLEMAN has served as Red Hat's Director of Information Services
since April 1999. From February 1999 to March 1999, Mr. Coleman acted as a
consultant to Red Hat in connection with systems vendor evaluation, selection
and implementation. From April 1998 to January 1999, Mr. Coleman served as
President and Chief Information Officer at Critical Information Technologies,
LLC, a data modeling and systems integration firm. From September 1996 to April
1998 he was employed by Ellora Software, Inc., a clinical data management
software developer, first as a consultant and then as a Vice President. From
February 1994 to September 1996, Mr. Coleman was Senior Vice President of
Inquiry Management and Database Systems for Computerworld, Inc. From August 1983
to February 1994 he served as President and Chief Information Officer of
Response Technologies, Inc., a business processing reengineering company.
MATTHEW BUTTERICK has served as Red Hat's Director of Internet Business
since May 1999. Prior to joining Red Hat, Mr. Butterick was founder and
President of Atomic Vision, a web site development company, from September 1994
until May 1999.
COLIN TENWICK has served as Red Hat's General Manager for European
Operations since June 1999. Prior to joining Red Hat, Mr. Tenwick held numerous
positions with Sybase, including Vice President and General Manager, European
Operations from October 1998 to June 1999; Vice President and Managing Director,
U.K. Operations from November 1995 to October 1998; and Vice President,
Marketing and Channel Sales, European Operations from April 1994 to November
1995.
CAROLYN SPARANO has served as Red Hat's Director of Services since June
1999. Prior to joining Red Hat, Ms. Sparano served in several positions with
INTERSOLV ASQ, including Vice President of Worldwide Training from March 1999 to
May 1999; Director of Consulting Services from August 1998 to March 1999;
Director of World Wide DataDirect Solutions from March 1997 to August 1998;
Director of DataDirect Technical Support from August 1995 to March 1997; and
Manager of Technical Support from January 1992 to August 1995.
ELECTION OF OFFICERS AND DIRECTORS
Red Hat's executive officers are elected by the Board of Directors on an
annual basis and serve until their successors are duly elected and qualified.
All of the current Directors were selected as Directors of Red Hat under the
First Amended and Restated Stockholder's Voting Agreement dated February 25,
1999, as amended, between Red Hat and some of its stockholders, which agreement
will automatically terminate upon the closing of this offering. There are no
family relationships among any of the executive officers or directors of Red
Hat.
Upon the closing of this offering, Red Hat's Board of Directors will be
divided into three classes, with the members of each class of directors serving
for staggered three-year terms. Messrs. Ewing and Hahn will serve in the class
the term of which expires in 2000; Messrs. Szulik and Batten will serve in the
class the term of which expires in 2001; and Messrs. Young and Kaiser will serve
in the class the term of which expires in 2002. At each annual meeting of
stockholders, a class of directors will be elected for a three-year term to
succeed the directors of the same class whose term is then expiring. Red Hat's
adoption of a classified Board of Directors could have the effect of increasing
the length
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of time necessary to change the composition of a majority of the Board of
Directors. See "Description of Capital Stock--Delaware Law and Certain Charter
and By-Law Provisions and Anti-Takeover Effects".
COMMITTEES OF THE BOARD OF DIRECTORS
The Board of Directors has appointed a Compensation Committee consisting of
Messrs. Batten, Kaiser and Hahn. The Compensation Committee reviews and
evaluates the compensation and benefits of all of Red Hat's officers, reviews
general policy matters relating to compensation and benefits of Red Hat's
employees and makes recommendations concerning these matters to the Board of
Directors. The Compensation Committee also administers Red Hat's stock option
and stock purchase plans. See "--Employee Benefit Plans".
The Board of Directors has also appointed an Audit Committee consisting of
Messrs. Batten, Kaiser and Hahn. The Audit Committee reviews, with Red Hat's
independent auditors, the scope and timing of the auditors' services, the
auditors' report on Red Hat's financial statements following completion of the
auditors' audit, and Red Hat's internal accounting and financial control
policies and procedures. In addition, the Audit Committee will make annual
recommendations to the Board of Directors for the appointment of independent
auditors for the ensuing year.
DIRECTOR COMPENSATION
Directors are reimbursed for reasonable out-of-pocket expenses incurred in
attending meetings of the Board of Directors and for meetings of any committees
of the Board of Directors on which they serve. Directors are also eligible to
participate in Red Hat's 1998 Stock Option Plan and 1999 Stock Option and
Incentive Plan. In accordance with a policy approved by the Board of Directors,
upon initial election or appointment to the Board of Directors, new non-employee
Directors will be granted non-qualified stock options to purchase 20,000 shares
of common stock at a price at least equal to the fair market value of Red Hat's
common stock on the date of grant. These options will vest 33 1/3% one year from
grant date and 8 1/3% at the end of each three-month period thereafter. Upon
re-election, non-employee directors will be granted non-qualified stock options
to purchase 10,000 shares of common stock to vest 33 1/3% one year from the date
of re-election and 8 1/3% at the end of each three-month period thereafter. Each
year of a non-employee director's tenure, the director will be granted
non-qualified stock options to purchase 5,000 shares of common stock which will
be fully vested upon grant. Upon the effectiveness of the registration statement
of which this prospectus is a part, according to the policy established by the
Board of Directors, Messrs. Batten and Kaiser will each be granted non-qualified
stock options to purchase 10,000 shares of common stock at the initial public
offering price. These options will vest as provided above. See "--Employee
Benefit Plans". In addition, in April 1999, Mr. Hahn was granted a non-qualified
stock option under the 1998 Stock Option Plan to purchase 171,552 shares of
common stock at an exercise price of $1.5705 per share.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
No interlocking relationship exists between the Board of Directors or
Compensation Committee and the board of directors or compensation committee of
any other company, nor has any interlocking relationship existed in the past.
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EXECUTIVE COMPENSATION
The following table sets forth the compensation earned by Robert F. Young,
Red Hat's Chief Executive Officer, and Red Hat's only other executive officer
during the fiscal year ended February 28, 1999 whose salary and bonus exceeded
$100,000 for such fiscal year for services rendered in all capacities to Red Hat
during the fiscal year ended February 28, 1999. As of June 30, 1999, the
annualized base salaries of Red Hat's executive officers not listed in the table
below who, had they been employed by Red Hat for the full fiscal year ended
February 28, 1999, would have earned in excess of $100,000, were: Matthew J.
Szulik -- $185,000 and Timothy J. Buckley -- $155,000.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG-TERM
COMPENSATION
ANNUAL AWARDS
COMPENSATION ---------------------------
NAME AND PRINCIPAL ------------------------ SECURITIES UNDERLYING ALL OTHER
POSITION SALARY($) BONUS($) OPTIONS(#) COMPENSATION ($)
- --------------------------- ----------- ----------- --------------------------- -------------------
<S> <C> <C> <C> <C>
Robert F. Young
Chairman and Chief
Executive Officer........ 161,458 25,000 -- 41,141
Marc Ewing
Executive Vice President
and Chief Technology
Officer.................. 145,125 20,000 -- --
</TABLE>
Red Hat has never granted any stock options to Mr. Young or Mr. Ewing.
CHANGE IN CONTROL ARRANGEMENTS
Matthew Szulik, Red Hat's President, is a party to an incentive stock option
agreement and a non-qualified stock option agreement, which both provide for the
lapsing of Red Hat's repurchase right as to 33 1/3% of his option shares if he
is terminated without cause on or before March 13, 2000 and for the lapsing in
full of Red Hat's repurchase right as to any unvested option shares upon the
termination of his employment, either by Red Hat's successor without cause or by
Mr. Szulik for good reason, following a change in control of Red Hat.
Tim Buckley, Red Hat's Chief Operating Officer, is a party to an incentive
stock option agreement and a non-qualified stock option agreement, which both
provide for the lapsing of Red Hat's repurchase right as to 33 1/3% of his
option shares if he is terminated without cause on or before April 12, 2000 and
for the lapsing in full of Red Hat's repurchase right as to any unvested option
shares upon the termination of his employment, either by Red Hat's successor
without cause or by Mr. Buckley for good reason, following a change in control
of Red Hat.
EMPLOYEE BENEFIT PLANS
1998 STOCK OPTION PLAN, AS AMENDED
Red Hat's 1998 Stock Option Plan, as amended, was adopted by the Board of
Directors and approved by Red Hat's stockholders in August 1998, and was amended
in November 1998, February 1999 and June 1999. The aggregate number of shares of
common stock which may be issued under the 1998 Stock Option Plan is 9,434,800.
Under the 1998 Stock Option Plan, Red Hat is authorized to grant incentive stock
options and non-qualified stock options, as well as awards of common stock and
opportunities to make direct purchases of common stock to employees,
consultants, directors and officers
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of Red Hat. The 1998 Stock Option Plan is administered by the Board of Directors
and the Compensation Committee. The 1998 Stock Option Plan provides that the
Board of Directors and the Compensation Committee each has the authority to
select the participants and determine the terms of the stock options, awards and
purchase rights granted under the 1998 Stock Option Plan. Options granted under
the 1998 Stock Option Plan are immediately exercisable. Red Hat has a right of
repurchase over all exercised but unvested shares which lapses over a period of
four years. An incentive stock option is not transferable by the recipient
except by will or by the laws of descent and distribution. Non-qualified stock
options and other awards are transferable only to the extent provided in the
agreement relating to such option or award or in response to a valid domestic
relations order. No incentive stock options may be exercised more than three
months following termination of employment, and no stock option may be exercised
following termination of employment for cause. However, in the event that
termination is due to death or disability, the stock option is exercisable for a
maximum of 180 days after such termination. In June 1999, the Board of Directors
and the stockholders voted to terminate the 1998 Stock Option Plan effective on
the consummation of the offering. As of June 30, 1999 Red Hat had outstanding
under the 1998 Stock Option Plan incentive stock options exercisable for
2,471,858 shares of common stock and non-qualified stock options exercisable for
2,705,030 shares of common stock.
1999 STOCK OPTION AND INCENTIVE PLAN
Red Hat's 1999 Stock Option and Incentive Plan was adopted by Red Hat's
Board of Directors and approved by its stockholders in June 1999. The 1999 Stock
Option and Incentive Plan provides for the grant of stock-based awards to
employees, officers and directors of, and consultants or advisors to, Red Hat
and its subsidiaries, including incentive stock options and non-qualified stock
options and other equity-based awards. Incentive stock options may be granted
only to employees of Red Hat. A total of 6,500,000 shares of common stock may be
issued upon the exercise of options or other awards granted under the 1999 Stock
Option and Incentive Plan. The maximum number of shares that may be granted to
any employee under the 1999 Stock Option and Incentive Plan shall not exceed
3,250,000 shares of common stock during any calendar year.
The 1999 Stock Option and Incentive Plan is administered by the Board of
Directors and the Compensation Committee. The 1999 Stock Option and Incentive
Plan provides that the Board of Directors and the Compensation Committee each
has the authority to select the persons to whom awards are granted and determine
the terms of each award, including the number of shares of common stock to be
granted. Payment of the exercise price of an award may be made in cash, shares
of common stock, a combination of cash or stock or by any other method approved
by the Board or Compensation Committee, consistent with Section 422 of the
Internal Revenue Code and Rule 16b-3 under the Exchange Act. Unless otherwise
permitted by Red Hat, awards are not assignable or transferable except by will
or the laws of descent and distribution.
Each of the Board of Directors or Compensation Committee may, in its sole
discretion, amend, modify or terminate any award granted or made under the 1999
Stock Option and Incentive Plan, so long as such amendment, modification or
termination would not materially and adversely affect the participant. Each of
the Board or Compensation Committee may also, in its sole discretion, accelerate
or extend the date or dates on which all or any particular option or options
granted under the 1999 Stock Option and Incentive Plan may be exercised.
1999 EMPLOYEE STOCK PURCHASE PLAN
The 1999 Employee Stock Purchase Plan was adopted by the Board of Directors
and approved by the stockholders in June 1999. The 1999 Employee Stock Purchase
Plan
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provides for the issuance of a maximum of 750,000 shares of common stock.
The 1999 Employee Stock Purchase Plan is administered by the Board of
Directors and the Compensation Committee. All employees of Red Hat whose
customary employment is for more than 20 hours per week and for more than three
months in any calendar year and who have completed more than 90 days of
employment with Red Hat on or before the first day of any six-month payment
period are eligible to participate in the 1999 Employee Stock Purchase Plan.
Outside directors and employees who would own 5% or more of the total combined
voting power of value of Red Hat's stock immediately after the grant may not
participate in the 1999 Employee Stock Purchase Plan. To participate in the 1999
Employee Stock Purchase Plan, an employee must authorize Red Hat to deduct an
amount not less than one percent nor more than 10 percent of a participant's
total cash compensation from his or her pay during six-month payment periods.
The first payment period will commence on a date to be determined by the Board
of Directors and end on March 31, 2000. Thereafter, the payment periods will
commence on the first day of April and October, and end on the last day of the
following March and September, respectively, of each year, but in no case shall
an employee be entitled to purchase more than 1,000 shares in any one payment
period. The exercise price for the option granted in each payment period is 85%
of the lesser of the average market price of the common stock on the first or
last business day of the payment period, in either event rounded up to the
nearest cent. If an employee is not a participant on the last day of the payment
period, such employee is not entitled to exercise his or her option, and the
amount of his or her accumulated payroll deductions will be refunded. Options
granted under the 1999 Employee Stock Purchase Plan may not be transferred or
assigned. An employee's rights under the 1999 Employee Stock Purchase Plan
terminate upon his or her voluntary withdrawal from the plan at any time or upon
termination of employment. No options have been granted to date under the 1999
Employee Stock Purchase Plan.
401(K) PLAN
Red Hat has a Section 401(k) Profit Sharing Plan. The 401(k) plan is a
tax-qualified plan covering all full-time Red Hat employees who are over 21
years of age and who have completed three months of service with Red Hat. If,
however, an employee was employed by Red Hat prior to February 1999, the 401(k)
plan covered such employee regardless of age or length of service with Red Hat.
Under the 401(k) plan, participants may elect to defer a portion of their
compensation. In addition, at the discretion of the Board of Directors, Red Hat
may make matching contributions into the 401(k) plan for all eligible employees.
Red Hat has not made any contributions to the 401(k) plan to date.
LIMITATION OF LIABILITY AND INDEMNIFICATION OF OFFICERS AND DIRECTORS
Red Hat's Third Amended and Restated Certificate of Incorporation and
Amended and Restated By-Laws provide that the directors and officers of Red Hat
shall be indemnified by Red Hat to the fullest extent permitted by Delaware law,
as it now exists or may in the future be amended, against all expenses and
liabilities reasonably incurred in connection with their service for or on
behalf of Red Hat. In addition, the Third Amended and Restated Certificate of
Incorporation provides that the directors of Red Hat will not be personally
liable for monetary damages to Red Hat for breaches of their fiduciary duty as
directors, unless they violated their duty of loyalty to Red Hat or its
stockholders, acted in bad faith, knowingly or intentionally violated the law,
authorized illegal dividends or redemptions or derived an improper personal
benefit from their action as directors. Red Hat intends to obtain insurance
which insures the directors and officers of Red Hat against certain losses and
which insures Red Hat against its obligations to indemnify the directors and
officers.
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TRANSACTIONS WITH AFFILIATES
On August 15, 1997, Red Hat sold 6,801,400 shares of its Series A preferred
stock to Frank Batten, Jr., Frank Batten, Louis F. Ryan as trustees under a
trust agreement dated April 11, 1988, as amended in a private financing at a
price of $.294057 per share. The trust is a 5% stockholder of Red Hat.
On September 29, 1998, Red Hat sold an aggregate of 8,116,550 shares of its
Series B preferred stock in a private financing at a price of $.857 per share.
Among the purchasers in this financing were Frank Batten, Jr., Frank Batten,
Louis F. Ryan as trustees under a trust agreement dated April 11, 1988, as
amended, Intel Corporation, Greylock IX Limited Partnership and Benchmark
Capital Partners II, L.P., each a 5% stockholder of Red Hat.
From February 25, 1999 through April 1, 1999, Red Hat sold an aggregate of
2,054,776 shares of its Series C preferred stock in a private financing at a
price of $3.141 per share. Among the purchasers in this financing were Frank
Batten, Jr., Frank Batten, Louis F. Ryan as trustees under a trust agreement
dated April 11, 1988, as amended, Intel Corporation, Greylock IX Limited
Partnership and Benchmark Capital Partners II, L.P., each a 5% stockholder of
Red Hat.
Red Hat believes that all transactions set forth above were made on terms no
less favorable to it than would have been obtained from unaffiliated third
parties. Red Hat has adopted a policy providing that all future transactions
between Red Hat and any of its officers, directors and affiliates will be on
terms no less favorable to Red Hat than could be obtained from unaffiliated
third parties and will be approved by a majority of the disinterested members of
Red Hat's Board of Directors.
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PRINCIPAL STOCKHOLDERS
The following table sets forth certain information known to Red Hat
regarding beneficial ownership of Red Hat's common stock as June 30, 1999 and as
adjusted to reflect the sale of the shares of common stock in this offering by:
- each person known by Red Hat to be the beneficial owner of more than 5% of
Red Hat's common stock;
- Red Hat's Chief Executive Officer and only other executive officer whose
salary and bonus during the fiscal year ended February 28, 1999 exceeded
$100,000 for such fiscal year;
- each of Red Hat's directors; and
- all executive officers and directors as a group.
Unless otherwise indicated, to the knowledge of Red Hat, each stockholder
possesses sole voting and investment power over the shares listed, except for
shares owned jointly with that person's spouse.
The number of shares of common stock deemed outstanding includes shares
issuable upon exercise of options and warrants held by the respective person or
group which may be exercised within 60 days after June 30, 1999. For purposes of
calculating each person's or group's percentage ownership, stock options
exercisable within 60 days after June 30, 1999 and warrants are included for
that person or group but not the stock options and warrants of any other person
or group.
<TABLE>
<CAPTION>
PERCENTAGE OF SHARES
BENEFICIALLY OWNED
------------------------
NAME AND ADDRESS OF BEFORE AFTER
BENEFICIAL OWNER (1) SHARES BENEFICIALLY OWNED OFFERING OFFERING
- ------------------------------------------------------------ -------------------------- ----------- -----------
<S> <C> <C> <C>
5% STOCKHOLDERS
Greylock IX Limited Partnership............................. 8,723,866 14.4% 13.1%
One Federal Street
Boston, MA 02110
Benchmark Capital Partners II, L.P.......................... 5,815,910 9.6 8.7
2840 Sand Hill Road, Suite 2000
Menlo Park, CA 94025
Intel Corporation........................................... 3,005,058 5.0 4.5
2200 Mission College Blvd. RN6-46
Santa Clara, CA 95052
EXECUTIVE OFFICERS AND DIRECTORS
Robert F. Young (2)......................................... 9,081,826 15.0 13.6
Marc Ewing (3).............................................. 9,088,476 15.0 13.7
Matthew Szulik (4).......................................... 2,736,248 4.4 4.0
Frank Batten, Jr. (5)....................................... 15,005,888 24.8 22.5
c/o Landmark Communications
150 W. Brambleton Avenue
Norfolk, VA 23510-2075
William S. Kaiser (6)....................................... 8,723,866 14.4 13.1
c/o Greylock IX Limited Partnership
One Federal Street
Boston, MA 02110
Eric Hahn................................................... 171,552 * *
All executive officers and directors as
a group (9 persons) (7)................................... 47,145,578 74.1% 67.7%
</TABLE>
- ------------------------
* Represents beneficial ownership of less than one percent of outstanding
common stock.
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(1) Unless otherwise indicated, the address for each beneficial owner is c/o Red
Hat, Inc., 2600 Meridian Parkway, Durham, N.C. 27713.
(2) Includes 3,222,746 shares held of record by Nancy Young, Mr. Young's wife,
300,000 held by the Nancy R. Young GRAT dated April 28, 1999, 200,000 shares
held of record by the Young Family Trust dated April 28, 1999 and 1,418,160
shares held of record by trusts for the benefit of Mr. Young's children. Mr.
Young disclaims beneficial ownership of these shares. Also includes 300,000
shares held of record by the Robert F. Young GRAT dated April 28, 1999.
(3) Includes 200,000 shares held of record by the Ewing Family Trust dated April
28, 1999 and 1,012,720 shares held of record by trusts for the benefit of
Mr. Ewing's children. Mr. Ewing disclaims beneficial ownership of these
shares. Also includes 600,000 shares held of record by the Marc Ewing GRAT
dated April 28, 1999.
(4) Includes 36,000 shares held of record by trusts for the benefit of Mr.
Szulik's children. Mr. Szulik disclaims beneficial ownership of these
shares. Also includes 27,678 shares held of record by the Matthew J. Szulik
GRAT dated May 26, 1999. Also includes 1,672,570 shares of common stock
issuable upon exercise of stock options.
(5) Includes 1,519,246 shares held of record by the 1988 Batten Trust and
13,486,642 shares held of record by the 1998 Frank Batten, Jr. Grantor
Annuity Trust.
(6) Includes shares held by Greylock IX Limited Partnership. Mr. Kaiser is a
general partner of Greylock IX GP Limited Partnership, the general partner
of Greylock IX Limited Partnership. Mr. Kaiser disclaims beneficial
ownership of these shares.
(7) Includes 3,031,190 shares of common stock issuable upon exercise of stock
options.
DESCRIPTION OF CAPITAL STOCK
GENERAL
Effective upon the closing of this offering and the filing of Red Hat's
Third Amended and Restated Certificate of Incorporation, as amended as of that
date, the authorized capital stock of Red Hat will consist of 225,000,000 shares
of common stock, par value $.0001 per share, and 5,000,000 shares of preferred
stock, par value $.0001 per share.
Prior to the effectiveness of the registration statement of which this
prospectus is a part, and in accordance with Red Hat's Second Amended and
Restated Certificate of Incorporation, as amended and currently in effect, Red
Hat is authorized to issue up to 70,620,652 shares of common stock, par value
$.0001 per share, of which 26,889,652 shares are issued and outstanding as of
July 31, 1999 and 16,972,726 shares of preferred stock, par value $.0001 per
share, of which as of July 31, 1999, 16,972,726 shares are issued and
outstanding. Upon the closing of this offering, all shares of preferred stock
will automatically convert into 33,945,452 shares of common stock.
The following summary description of Red Hat's capital stock is not intended
to be complete and is qualified by reference to the provisions of applicable law
and to Red Hat's Third Amended and Restated Certificate of Incorporation and
Amended and Restated By-laws, filed as exhibits to the registration statement of
which this prospectus is a part.
COMMON STOCK
As of July 31, 1999, there were 26,889,652 shares of common stock
outstanding held by 80 stockholders of record. Based upon the number of shares
outstanding as of that date and giving effect to the issuance of the 6,000,000
shares of common stock offered by Red Hat in this offering and the conversion of
the outstanding shares of preferred stock, there will be 66,835,104 shares of
common stock outstanding upon the closing of this offering. In addition, as of
July 31, 1999, there were outstanding stock options for the purchase of
5,762,188 shares of common stock and outstanding warrants for the
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purchase of 3,197,450 shares of common stock.
Holders of common stock are entitled to one vote for each share held on all
matters submitted to a vote of stockholders and do not have cumulative voting
rights. Directors are elected by a plurality of the votes of the shares present
in person or by proxy at the meeting and entitled to vote in such election.
Holders of common stock are entitled to receive ratably such dividends, if any,
as may be declared by the Board of Directors out of funds legally available
therefor, after provision has been made for any preferential dividend rights of
outstanding preferred stock. Upon the liquidation, dissolution or winding up of
Red Hat, the holders of common stock are entitled to receive ratably the net
assets of Red Hat available after the payment of all debts and other liabilities
of Red Hat, and after the satisfaction of the rights of any outstanding
preferred stock. Holders of the common stock have no preemptive, subscription,
redemption or conversion rights, nor are they entitled to the benefit of any
sinking fund. The outstanding shares of common stock are, and the shares offered
by Red Hat in this offering will be, when issued and paid for, validly issued,
fully paid and non-assessable. The rights, powers, preferences and privileges of
holders of common stock are subordinate to, and may be adversely affected by,
the rights of the holders of shares of any series of preferred stock which Red
Hat may designate and issue in the future.
PREFERRED STOCK
The Board of Directors will be authorized, without further stockholder
approval, to issue from time to time up to an aggregate of 5,000,000 shares of
preferred stock, in one or more series. Each series of preferred stock shall
have such number of shares, designations, preferences, voting powers,
qualifications and special or relative rights or privileges as shall be
determined by the Board of Directors, which may include, among others, dividend
rights, voting rights, redemption and sinking fund provisions, liquidation
preferences, conversion rights and preemptive rights.
The stockholders of Red Hat have granted the Board of Directors authority to
issue the preferred stock and to determine its rights and preferences in order
to eliminate delays associated with a stockholder vote on specific issuances.
The rights of the holders of common stock will be subordinate to the rights of
holders of any preferred stock issued in the future. The issuance of preferred
stock, while providing desirable flexibility in connection with possible
acquisitions and other corporate purposes, could adversely affect the voting
power or other rights of the holders of common stock, and could make it more
difficult for a third party to acquire, or discourage a third party from
attempting to acquire, a majority of the outstanding voting stock of Red Hat.
Red Hat has not, to date, issued any shares of such preferred stock and has no
present plans to issue any shares of preferred stock.
DELAWARE LAW AND CERTAIN CHARTER AND BY-LAW PROVISIONS AND ANTI-TAKEOVER EFFECTS
Upon completion of this offering, the provisions of Section 203 of the
General Corporation Law of Delaware will prohibit Red Hat from engaging in a
"business combination" with an "interested stockholder" for a period of three
years after the date of the transaction in which the person became an interested
stockholder, unless the business combination is approved in a prescribed manner.
A "business combination" includes mergers, asset sales and other transactions
resulting in a financial benefit to the interested stockholder. An "interested
stockholder" is defined as a person who, at the time of determination whether a
person is an interested stockholder,
- beneficially owns 15% or more of Red Hat's common stock; or
- is an affiliate or associate of Red Hat and benefically owned 15% or more
of Red Hat's common stock at any time within three years of the date of
determination.
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Red Hat's Third Amended and Restated Certificate of Incorporation provides
for the division of the Board of Directors into three classes as nearly equal in
size as possible with staggered three-year terms. See "Management--Election of
Officers and Directors". In addition, Red Hat's Third Amended and Restated
Certificate of Incorporation provides that directors may be removed only for
cause by the affirmative vote of the holders of 75% of the shares of capital
stock of Red Hat entitled to vote. Under Red Hat's Third Amended and Restated
Certificate of Incorporation, any vacancy on the Board of Directors, however
occurring, including a vacancy resulting from an enlargement of the Board, may
only be filled by vote of a majority of the directors then in office. The likely
effect of the classification of the Board of Directors and the limitations on
the removal of directors and filling of vacancies is an increase in the time
required for the stockholders to change the composition of the Board of
Directors. For example, because only two directors may be replaced by
stockholder vote at each annual meeting of stockholders, stockholders seeking to
replace a majority of the members of the Board of Directors will need at least
two annual meetings of stockholders to effect this change.
Red Hat's Third Amended and Restated Certificate of Incorporation also
provides that, after the effective date of the registration statement of which
this prospectus is a part, any action required or permitted to be taken by the
stockholders of Red Hat at an annual meeting or special meeting of stockholders
may only be taken if it is properly brought before the meeting and may not be
taken by written action in lieu of a meeting. Red Hat's Amended and Restated
By-laws provide that special meetings of the stockholders may only be called by
the Board of Directors, the Chairman of the Board of Directors, the Chief
Executive Officer or the President of Red Hat. Red Hat's Amended and Restated
By-laws further provide that in order for any matter to be considered "properly
brought" before a meeting, a stockholder must comply with requirements regarding
advance notice to Red Hat. The foregoing provisions could have the effect of
delaying until the next stockholders meeting stockholder actions which are
favored by the holders of a majority of the outstanding voting securities of Red
Hat. These provisions may also discourage another person or entity from making a
tender offer for Red Hat's common stock, because such person or entity, even if
it acquired a majority of the outstanding voting securities of Red Hat, would be
able to take action as a stockholder, such as electing new directors or
approving a merger, only at a duly called stockholders meeting, and not by
written consent.
The General Corporation Law of Delaware provides that the affirmative vote
of a majority of the shares entitled to vote on any matter is required to amend
a corporation's certificate of incorporation or by-laws, unless a corporation's
certificate of incorporation or by-laws, as the case may be, requires a greater
percentage. Red Hat's Third Amended and Restated Certificate of Incorporation
requires the affirmative vote of the holders of at least 75% of the shares of
capital stock of Red Hat issued and outstanding and entitled to vote to amend or
repeal any of the foregoing provisions of the Restated Certificate of
Incorporation. Red Hat's Amended and Restated By-laws may be amended or repealed
by a majority vote of the Board of Directors except for provisions relating to
the Board of Directors which may only be amended or repealed by the affirmative
vote of the holders of at least 75% of the shares of capital stock issued and
outstanding and entitled to vote. The Amended and Restated By-laws may also be
amended or repealed by the affirmative vote of the holders of at least 75% of
the shares of capital stock of Red Hat issued and outstanding and entitled to
vote. The 75% stockholder vote would be in addition to any separate class vote
that might in the future be required in accordance with the terms of any series
of preferred stock that might be outstanding at the time any such amendments are
submitted to stockholders.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the common stock is Chase Mellon
Shareholder Services, LLC.
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SHARES ELIGIBLE FOR FUTURE SALE
Prior to this offering, there has been no market for Red Hat's common stock.
Future sales of substantial amounts of common stock in the public market could
adversely affect prevailing market prices from time to time. Furthermore, since
only a limited number of shares will be available for sale shortly after this
offering because of certain contractual and legal restrictions on resale
described below, sales of substantial amounts of Red Hat's common stock in the
public market after the restrictions lapse could adversely affect the prevailing
market price and Red Hat's the ability to raise equity capital in the future.
SALES OF RESTRICTED SHARES
Based on shares outstanding at June 30, 1999 upon completion of this
offering, Red Hat will have outstanding an aggregate of 66,579,704 shares of
common stock, assuming no exercise of the underwriters' over-allotment option
and no exercise of outstanding options or warrants. Of these shares, the
6,000,000 shares sold in this offering will be freely tradable without
restrictions or further registration under the Securities Act, unless such
shares are purchased by an existing affiliate of Red Hat as that term is defined
in Rule 144 under the Securities Act.
The remaining 60,579,704 shares of common stock held by existing
stockholders are restricted shares or are restricted by the contractual
provisions described below. Restricted shares may be sold in the public market
only if registered or if they qualify for an exemption from registration under
Rule 144, 144(k) or 701 promulgated under the Securities Act, which are
summarized below. Of these restricted shares, 1,990,000 shares will be available
for resale in the public market in reliance on Rule 144(k), all of which shares
are restricted by the terms of the lock-up agreements described below. An
additional 31,773,102 shares will be available for resale in the public market
in reliance on Rule 144, all of which shares are restricted by the terms of the
lock-up agreements. The remaining 26,296,852 shares become eligible for resale
in the public market at various dates thereafter, all of which shares are
restricted by the terms of the lock-up agreements.
Under Rule 144 as currently in effect, beginning 90 days after the date of
this prospectus, a person who has beneficially owned restricted shares for at
least one year and has complied with the requirements described below would be
entitled to sell a certain number of shares within any three-month period. That
number of shares cannot exceed the greater of one percent of the number of
shares of common stock then outstanding, which will equal approximately 666,000
shares immediately after this offering, or the average weekly trading volume of
the common stock on the Nasdaq National Market during the four calendar weeks
preceding the filing of a notice on Form 144 reporting such sale. Sales under
Rule 144 are also restricted by certain manner of sale provisions, notice
requirements and the availability of current public information about Red Hat.
Rule 144 also provides that affiliates of Red Hat who are selling shares of
common stock that are not restricted shares must nonetheless comply with the
same restrictions applicable to restricted shares with the exception of the
holding period requirement.
Under Rule 144(k), a person who is not deemed to have been an affiliate of
Red Hat at any time during the 90 days preceding a sale, and who has
beneficially owned the shares proposed to be sold for at least two years, is
entitled to sell such shares without complying with the manner of sale, public
information, volume limitation or notice provisions of Rule 144. Accordingly,
unless otherwise restricted, these shares may therefore be sold immediately upon
the completion of this offering.
OPTIONS
Rule 701 provides that the shares of common stock acquired upon the exercise
of currently outstanding options or other rights granted under Red Hat's stock
plans may be resold, to the extent not restricted by the terms
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of the lock-up agreements, by persons, other than affiliates, beginning 90 days
after the date of this prospectus, restricted only by the manner of sale
provisions of Rule 144, and by affiliates in accordance with Rule 144, without
compliance with its one-year minimum holding period. As of June 30, 1999,
459,750 shares will be available for resale in the public market in reliance on
Rule 701, all of which shares are restricted by the terms of the lock-up
agreements. As of June 30, 1999, the Board of Directors has authorized an
aggregate of up to 16,684,800 shares of common stock for issuance under Red
Hat's stock option and stock purchase plans. As of June 30, 1999, options to
purchase a total of 5,176,888 shares of common stock were outstanding, all of
which options are exercisable but restricted by Red Hat's right to repurchase
unvested shares upon the termination of such optionee's business relationship
with Red Hat. Of these options, 407,425 shares are no longer restricted by Red
Hat's right of repurchase and will be eligible for sale, if not restricted by
the terms of the lock-up agreements, in the public market in accordance with
Rule 701 under the Securities Act beginning 90 days after the date of this
prospectus. Of the total shares issuable upon exercise of these options, all of
these shares are restricted by the terms of the lock-up agreements.
Red Hat intends to file one or more registration statements on Form S-8
under the Securities Act following this offering to register all shares of
common stock which are issuable upon exercise of outstanding stock options or
other rights granted under Red Hat's stock plan(s) and common stock issuable
under Red Hat's stock option and stock purchase plans. These registration
statements are expected to become effective upon filing. Shares covered by these
registration statements will thereupon be eligible for sale in the public
markets, upon the expiration or release from the terms of the lock-up
agreements, to the extent applicable.
WARRANTS
As of June 30, 1999, Red Hat had outstanding warrants exercisable for a
total of 3,197,450 shares of common stock, all of which are currently
exercisable. All of these shares are restricted by the terms of the lock-up
agreements.
LOCK-UP AGREEMENTS
Except for sales of common stock to the underwriters in accordance with the
terms of the underwriting agreement Red Hat, the executive officers, directors,
stockholders and substantially all optionholders have agreed not to sell or
otherwise dispose of, directly or indirectly, any shares of common stock (or any
security convertible into or exchangeable or exercisable for common stock)
without the prior written consent of Goldman, Sachs & Co. for a period of 180
days after the date of this prospectus. In addition, for a period of 180 days
from the date of this prospectus, except as required by law, Red Hat has agreed
that its Board of Directors will not consent to any offer for sale, sale or
other disposition, or any transaction which is designed or could be expected to
result in the disposition by any person, directly or indirectly, of any shares
of common stock without the prior written consent of Goldman Sachs. See
"Underwriting". Goldman Sachs, in its sole discretion, at any time or from time
to time and without notice, may release for sale in the public market all or any
portion of the shares restricted by the terms of the lock-up agreements.
REGISTRATION RIGHTS
Upon the expiration of the contractual lock-up period, certain stockholders
of Red Hat will be entitled to require Red Hat to register under the Securities
Act up to a total of 55,725,622 shares of outstanding common stock under the
terms of an investor rights agreement with Red Hat. The investor rights
agreement provides that if Red Hat proposes to register in a firm commitment
underwritten offering any of its securities under the Securities Act at any time
or times, if not restricted by the underwriters of the offering, the
stockholders having registration rights shall be entitled to include shares of
common stock held by them in such registration. However, the managing
underwriter of any offering may exclude for marketing reasons some or all of the
shares from the registration. Some of these
68
<PAGE>
stockholders also have the right to require Red Hat, on no more than five
occasions, to prepare and file a registration statement under the Securities Act
registering the shares of common stock held by them. Red Hat is required to bear
the expenses of all such registrations, except underwriting discounts and
commissions. The investor rights agreement terminates in 2002 on the third
anniversary of the offering.
EFFECTS OF SALES OF SHARES
Prior to this offering, there has been no public market for the common stock
of Red Hat, and no predictions can be made as to the effect, if any, that market
sales of shares of common stock prevailing from time to time, or the
availability of shares for future sale, may have on the market price for the
common stock. Sales of substantial amounts of common stock, or the perception
that such sales could occur, could adversely effect prevailing market prices for
the common stock and could impair Red Hat's future ability to obtain capital
through an offering of equity securities.
LEGAL MATTERS
The validity of the shares of common stock to be issued in this offering
will be passed upon for Red Hat by Testa, Hurwitz & Thibeault, LLP, Boston,
Massachusetts. Certain legal matters in connection with this offering will be
passed upon for the underwriters by Hale and Dorr LLP, Boston, Massachusetts.
EXPERTS
The financial statements as of February 28, 1998 and 1999 and for each of
the three years in the period ended February 28, 1999 included in this
prospectus have been so included in reliance upon the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
Red Hat has filed with the Commission a registration statement on Form S-1
under the Securities Act registering the common stock to be sold in this
offering. As permitted by the rules and regulations of the Commission, this
prospectus omits certain information contained in the registration statement and
the exhibits and schedules filed as a part of the registration statement. For
further information concerning Red Hat and the common stock to be sold in this
offering, you should refer to the registration statement and to the exhibits and
schedules filed as part of the registration statement. Statements contained in
this prospectus regarding the contents of any agreement or other document filed
as an exhibit to the registration statement are not necessarily complete, and in
each instance reference is made to the copy of the agreement filed as an exhibit
to the registration statement each statement being qualified by this reference.
The registration statement, including the exhibits and schedules filed as a part
of the registration statement, may be inspected at the public reference
facilities maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at its regional offices located at
Seven World Trade Center, New York, New York 10007 and 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661, and copies of all or any part thereof may
be obtained from such offices upon payment of the prescribed fees. You may call
the Commission at 1-800-SEC-0330 for further information on the operation of the
public reference rooms and you can request copies of the documents upon payment
of a duplicating fee, by writing to the Commission. In addition, the Commission
maintains a web site that contains reports, proxy and information statements and
other information regarding registrants (including Red Hat) that file
electronically with the Commission which can be accessed at http://www.sec.gov.
69
<PAGE>
RED HAT, INC.
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Report of Independent Accountants.................................................... F-2
Balance Sheets at February 28, 1998 and 1999 and May 31, 1999........................ F-3
Statements of Operations for the years ended February 28, 1997, 1998 and 1999 and the
three months ended May 31, 1998 and 1999........................................... F-4
Statements of Stockholders' Equity (Deficit) for the years ended February 28, 1997,
1998 and 1999 and the three months ended May 31, 1999.............................. F-5
Statements of Cash Flows for the years ended February 28, 1997, 1998 and 1999 and the
three months ended May 31, 1998 and 1999........................................... F-6
Notes to Financial Statements........................................................ F-7
</TABLE>
F-1
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
The Board of Directors and Stockholders of
Red Hat, Inc.
In our opinion, the accompanying balance sheets and the related statements
of operations, of stockholders' equity (deficit), and of cash flows present
fairly, in all material respects, the financial position of Red Hat, Inc. at
February 28, 1998 and 1999, and the results of its operations and its cash flows
for each of the three years in the period ended February 28, 1999, in conformity
with generally accepted accounting principles. These financial statements are
the responsibility of the Company's management; our responsibility is to express
an opinion on these financial statements based on our audits. We conducted our
audits of these statements in accordance with generally accepted auditing
standards which require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements, assessing the
accounting principles used and significant estimates made by management, and
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for the opinion expressed above.
/s/ PricewaterhouseCoopers LLP
Raleigh, North Carolina
April 30, 1999, except as to note 14
which is as of August 5, 1999
F-2
<PAGE>
RED HAT, INC.
BALANCE SHEETS
<TABLE>
<CAPTION>
FEBRUARY 28, PRO
-------------------------------------- FORMA
1998 1999 MAY 31, MAY 31,
----------- ----------- 1999 1999
------------ ------------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents............................... $ 1,292,562 $10,055,227 $13,982,093 $13,982,093
Short-term investments.................................. 100,000 2,037,992 1,023,518 1,023,518
Accounts receivable, net................................ 744,551 1,127,193 3,321,175 3,321,175
Inventory............................................... 141,176 345,630 1,074,190 1,074,190
Prepaid expenses........................................ 383,830 173,730 337,107 337,107
Income tax receivable................................... -- 114,145 114,145 114,145
----------- ----------- ------------ ------------
Total current assets.................................. 2,662,119 13,853,917 19,852,228 19,852,228
Property and equipment, net............................... 337,327 1,270,576 1,797,790 1,797,790
Other assets, net......................................... 81,188 151,310 512,440 512,440
Investments............................................... 50,000 -- -- --
----------- ----------- ------------ ------------
Total assets.......................................... $ 3,130,634 $15,275,803 $22,162,458 $22,162,458
----------- ----------- ------------ ------------
----------- ----------- ------------ ------------
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
Current liabilities:
Accounts payable........................................ $ 773,936 $ 2,087,305 $3,264,987 $3,264,987
Royalties payable....................................... 247,323 144,074 92,000 92,000
Accrued expenses........................................ 50,334 379,757 185,465 185,465
Deferred revenue........................................ 26,207 33,352 2,983,734 2,983,734
Current portion of capital lease obligations............ 22,797 108,897 108,897 108,897
----------- ----------- ------------ ------------
Total current liabilities............................. 1,120,597 2,753,385 6,635,083 6,635,083
Capital lease obligations................................. 65,032 419,778 384,937 384,937
Commitments and contingencies (Note 12)...................
Mandatorily redeemable preferred stock:
Series A, 6,801,400 shares authorized, issued and
outstanding; none pro forma........................... 1,983,209 1,992,184 1,997,139 --
Series B, 8,116,550 shares authorized, issued and
outstanding; none pro forma........................... -- 6,919,644 6,936,415 --
Series C, 1,797,929 and 2,054,776 shares authorized at
February 28, 1999 and May 31, 1999, respectively;
1,027,388 and 2,054,776 shares issued and outstanding
at February 28, 1999 and May 31, 1999, respectively;
none pro forma........................................ -- 3,195,591 6,404,980 --
Stockholders' equity (deficit):
Common stock, $.0001 par value, 225,000,000 shares
authorized, 23,500,000, 23,852,950 and 26,134,502
shares issued and outstanding at February 28, 1998,
1999 and May 31, 1999, respectively (60,079,954 shares
issued and outstanding pro forma at May 31, 1999)..... 2,350 2,385 2,613 6,008
Additional paid-in capital.............................. 263,650 427,464 5,946,087 21,281,226
Deferred compensation................................... -- -- (3,577,698) (3,577,698)
Accumulated deficit..................................... (304,204) (434,628) (2,567,098) (2,567,098)
----------- ----------- ------------ ------------
Total stockholders' equity (deficit).................. (38,204) (4,779) (196,096) 15,142,438
----------- ----------- ------------ ------------
Total liabilities and stockholders' equity
(deficit)........................................... $ 3,130,634 $15,275,803 $22,162,458 $22,162,458
----------- ----------- ------------ ------------
----------- ----------- ------------ ------------
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-3
<PAGE>
RED HAT, INC.
STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
THREE MONTHS
YEAR ENDED FEBRUARY 28, ENDED MAY 31,
------------------------------- --------------------
1997 1998 1999 1998 1999
--------- --------- --------- --------- ---------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Revenue:
Software and related products........ $2,603,131 $5,131,623 $10,012,923 $1,373,650 $1,935,818
Web advertising...................... -- -- -- -- 80,050
Services and other................... -- 24,000 776,996 177,315 781,351
--------- --------- --------- --------- ---------
Total revenue...................... 2,603,131 5,155,623 10,789,919 1,550,965 2,797,219
--------- --------- --------- --------- ---------
Cost of revenue:
Software and related products........ 1,204,721 2,210,538 4,012,685 682,415 1,180,904
Web advertising -- -- -- -- 123,000
Services and other................... -- -- 28,148 -- 443,160
--------- --------- --------- --------- ---------
Total cost of revenue.............. 1,204,721 2,210,538 4,040,833 682,415 1,747,064
--------- --------- --------- --------- ---------
Gross profit........................... 1,398,410 2,945,085 6,749,086 868,550 1,050,155
--------- --------- --------- --------- ---------
Operating expense:
Sales and marketing.................. 491,473 1,252,362 3,083,162 381,658 1,628,567
Research and development............. 325,244 902,826 2,220,115 340,965 826,124
General and administrative........... 525,978 798,592 1,483,909 213,651 824,158
--------- --------- --------- --------- ---------
Total operating expense............ 1,342,695 2,953,780 6,787,186 936,274 3,278,849
--------- --------- --------- --------- ---------
Income (loss) from operations.......... 55,715 (8,695) (38,100) (67,724) (2,228,694)
--------- --------- --------- --------- ---------
Other income (expense):
Interest income...................... 200 34,410 171,181 15,223 150,109
Interest expense..................... (23,304) (13,036) (9,463) -- (10,805)
--------- --------- --------- --------- ---------
Other income (expense), net........ (23,104) 21,374 161,718 15,223 139,304
--------- --------- --------- --------- ---------
Income (loss) before income taxes...... 32,611 12,679 123,618 (52,501) (2,089,390)
Provision for income taxes............. -- 4,906 214,686 -- --
--------- --------- --------- --------- ---------
Net income (loss)...................... 32,611 7,773 (91,068) (52,501) (2,089,390)
Accretion on mandatorily redeemable
preferred stock...................... -- -- (39,356) -- (43,080)
--------- --------- --------- --------- ---------
Net income (loss) available to common
stockholders......................... $ 32,611 $ 7,773 $(130,424) $ (52,501) $(2,132,470)
--------- --------- --------- --------- ---------
--------- --------- --------- --------- ---------
Net income (loss) per common share:
Basic................................ 0.0014 0.0003 (0.0055) (0.0022) (0.0875)
Diluted.............................. 0.0012 0.0002 (0.0055) (0.0022) (0.0875)
Weighted average common shares
outstanding:
Basic................................ 23,500,000 23,500,000 23,550,050 23,500,000 24,383,353
Diluted.............................. 27,232,520 34,578,277 23,550,050 23,500,000 24,383,353
Pro forma net income (loss) per common
share (unaudited):
Basic................................ 0.0014 0.0003 (0.0021) (0.0014) (0.0362)
Diluted.............................. 0.0012 0.0002 (0.0021) (0.0014) (0.0362)
Pro forma weighted average common
shares outstanding (unaudited):
Basic................................ 23,500,000 30,841,785 43,929,824 37,102,800 57,781,609
Diluted.............................. 27,232,520 34,578,277 43,929,824 37,102,800 57,781,609
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-4
<PAGE>
RED HAT, INC.
STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIT)
<TABLE>
<CAPTION>
COMMON STOCK ADDITIONAL TOTAL
----------------------- PAID-IN DEFERRED ACCUMULATED STOCKHOLDERS'
SHARES AMOUNT CAPITAL COMPENSATION DEFICIT EQUITY (DEFICIT)
---------- ----------- ---------- -------------- ------------- ----------------
<S> <C> <C> <C> <C> <C> <C>
Balance at February 29,
1996...................... 23,500,000 $ 2,350 $ 263,650 $ -- $ (344,588) $ (78,588)
Net income.................. -- -- -- -- 32,611 32,611
---------- ----------- ---------- -------------- ------------- ----------------
Balance at February 28,
1997...................... 23,500,000 2,350 263,650 -- (311,977) (45,977)
Net income.................. -- -- -- -- 7,773 7,773
---------- ----------- ---------- -------------- ------------- ----------------
Balance at February 28,
1998...................... 23,500,000 2,350 263,650 -- (304,204) (38,204)
Exercise of common stock
warrants.................. 352,950 35 (17) -- -- 18
Tax benefit on exercise of
common stock warrants..... -- -- 163,831 -- -- 163,831
Accretion of mandatorily
redeemable preferred
stock..................... -- -- -- -- (39,356) (39,356)
Net loss.................... -- -- -- -- (91,068) (91,068)
---------- ----------- ---------- -------------- ------------- ----------------
Balance at February 28,
1999...................... 23,852,950 2,385 427,464 -- (434,628) (4,779)
Exercise of common stock
options and warrants...... 2,281,552 228 1,840,624 -- -- 1,840,852
Deferred compensation....... -- -- 3,677,999 (3,677,999) -- --
Amortization of deferred
compensation.............. -- -- -- 100,301 -- 100,301
Accretion of mandatorily
redeemable preferred
stock..................... -- -- -- -- (43,080) (43,080)
Net loss.................... -- -- -- -- (2,089,390) (2,089,390)
---------- ----------- ---------- -------------- ------------- ----------------
Balance at May 31, 1999
(unaudited)............... 26,134,502 $ 2,613 $5,946,087 $ (3,577,698) $(2,567,098) $ (196,096)
---------- ----------- ---------- -------------- ------------- ----------------
---------- ----------- ---------- -------------- ------------- ----------------
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-5
<PAGE>
RED HAT, INC.
STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
THREE MONTHS
ENDED
YEAR ENDED FEBRUARY 28, MAY 31,
---------------------------------- ------------------------
1997 1998 1999 1998 1999
--------- ---------- ----------- ---------- ------------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Cash flows from operating activities:
Net income (loss)............................... $ 32,611 $ 7,773 $ (91,068) $ (52,501) $ (2,089,390)
Adjustments to reconcile net income (loss) to
net cash provided by (used in) operating
activities:
Depreciation and amortization................. 37,134 102,876 177,656 31,379 65,657
Tax benefit of options exercised.............. -- -- 163,831 -- --
Deferred compensation......................... -- -- -- -- 100,301
Provision for doubtful accounts............... 38,986 38,141 185,092 -- 19,120
Provision for inventory obsolescence.......... -- -- 182,509 68,439 --
Deferred revenue.............................. -- 26,207 7,145 -- 2,950,382
Changes in operating assets and liabilities:
Accounts receivable......................... (251,774) (479,746) (567,734) 105,851 (2,213,102)
Inventory................................... (14,934) (84,507) (386,963) (74,482) (728,560)
Prepaid expenses............................ (12,248) (370,571) 210,100 (120,991) (163,377)
Income tax receivable....................... -- -- (114,145) -- --
Other assets................................ 1,613 (15,408) (75,478) (2,790) (362,428)
Accounts payable............................ 282,453 290,253 1,313,369 (33,465) 1,177,682
Royalties payable........................... 57,477 189,846 (103,249) 118,727 (52,074)
Accrued expenses............................ (66,044) 19,019 329,423 (11,290) (194,292)
--------- ---------- ----------- ---------- ------------
Net cash provided by (used in) operating
activities.............................. 105,274 (276,117) 1,230,488 28,877 (1,490,081)
--------- ---------- ----------- ---------- ------------
Cash flows from investing activities:
Purchase of investment securities............... -- (150,000) (1,966,600) -- --
Proceeds from maturity of investment
securities.................................... -- -- 100,000 100,000 1,014,474
Purchase of equipment........................... (201,322) (158,004) (654,235) (71,537) (591,573)
Proceeds from sale of equipment................. -- 24,272 -- -- --
--------- ---------- ----------- ---------- ------------
Net cash provided by (used in) investing
activities.............................. (201,322) (283,732) (2,520,835) 28,463 422,901
--------- ---------- ----------- ---------- ------------
Cash flows from financing activities:
Proceeds from borrowing from stockholders....... 50,000 -- -- -- --
Repayments of borrowings from stockholders...... -- (86,243) -- -- --
Proceeds from notes payable..................... 46,048 239,214 -- -- --
Repayments of notes payable..................... -- (279,019) -- -- --
Proceeds from issuance of mandatorily redeemable
preferred stock, net.......................... -- 1,983,209 10,084,854 -- 3,188,035
Proceeds from exercise of common stock options
and warrants.................................. -- -- 18 -- 1,840,852
Payments on capital lease obligations........... -- (4,750) (31,860) (7,737) (34,841)
--------- ---------- ----------- ---------- ------------
Net cash provided by (used in) financing
activities.............................. 96,048 1,852,411 10,053,012 (7,737) 4,994,046
--------- ---------- ----------- ---------- ------------
Net increase in cash and cash equivalents....... -- 1,292,562 8,762,665 49,603 3,926,866
Cash and cash equivalents beginning of the
year.......................................... -- -- 1,292,562 1,292,562 10,055,227
--------- ---------- ----------- ---------- ------------
Cash and cash equivalents end of year........... $ -- $1,292,562 $10,055,227 $1,342,165 $ 13,982,093
--------- ---------- ----------- ---------- ------------
--------- ---------- ----------- ---------- ------------
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-6
<PAGE>
RED HAT, INC.
NOTES TO FINANCIAL STATEMENTS
1. NATURE OF BUSINESS
BUSINESS ACTIVITY
Red Hat, Inc. ("Red Hat" or the "Company") is a leading developer and global
provider of open source software products and services, and has built a
comprehensive web site dedicated to the open source software community. Red Hat,
Inc. was incorporated in Connecticut in March 1993 as ACC Corp., Inc. In
September 1995 ACC Corp., Inc. changed its name to Red Hat Software, Inc. In
September 1998, Red Hat Software, Inc. reincorporated in Delaware. In June 1999,
Red Hat Software, Inc. changed its name to Red Hat, Inc. The Linux operating
system ("Linux") is copyrighted under the terms of the GNU General Public
License (the "GPL") which states that the source code must be freely
distributable. The Company develops and publishes software applications that are
sold as shrink-wrapped software and releases freely-redistributable software
available for unrestricted download on the internet. In addition, the Company
publishes and sells reference books on the Linux operating system.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
UNAUDITED INTERIM FINANCIAL STATEMENTS
The financial statements as of May 31, 1998 and 1999 and for the three month
period then ended are unaudited and reflect all adjustments (consisting of
normal recurring adjustments) which are, in the opinion of the Company's
management, necessary for a fair presentation of financial position, results of
operations and cash flows. All financial statement disclosures related to the
three month period ended May 31, 1998 and 1999 are unaudited.
UNAUDITED PRO FORMA BALANCE SHEET
The Board of Directors has authorized the Company to file a Registration
Statement with the Securities and Exchange Commission permitting the Company to
sell shares of common stock in an initial public offering ("IPO"). If the IPO is
consummated as presently anticipated, each share of the Series A, Series B, and
Series C mandatorily redeemable preferred stock will automatically convert into
two shares of common stock. The unaudited pro forma balance sheet reflects the
subsequent conversion of Series A, Series B, and Series C preferred shares into
common stock at a 2 for 1 conversion ratio as if such conversion has occurred as
of February 28, 1999.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
CASH AND CASH EQUIVALENTS
The Company considers investments purchased with a maturity period of three
months or less at the date of purchase to be cash equivalents.
F-7
<PAGE>
RED HAT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
INVESTMENTS
The Company's investments are all in debt securities which are classified as
held-to-maturity and are carried at amortized cost in accordance with Statement
of Financial Accounting Standards No. 115 "Accounting for Investments in Debt
and Equity Securities", as the Company has both the positive intent and ability
to hold them to maturity.
INVENTORY
The costs incurred for duplicating the computer software, documentation, and
training materials from the product masters and for packaging the product for
distribution are capitalized as inventory using the weighted average method and
charged to cost of sales when revenue from the sale of units is recognized.
Management periodically evaluates the realizability of inventory based on
planned release dates of product updates and records a reserve for obsolescence
when necessary. The reserve for inventory obsolescence was $0 and $182,509 at
February 28, 1998 and 1999, respectively. The reserve for inventory obsolescence
was $182,509 at May 31, 1999.
CAPITALIZED SOFTWARE COSTS
Capitalization of software development costs begins upon the establishment
of technological feasibility and ceases when the product is available for
general release. The establishment of technological feasibility and the ongoing
assessment of recoverability of capitalized software development costs require
considerable judgment by management concerning certain external factors
including, but not limited to, technological feasibility, anticipated future
gross revenue, estimated economic life and changes in software and hardware
technologies. As a result of the Company's practice of releasing source code
that it has developed on a weekly basis for unrestricted download on the
internet, there is generally no passage of time between achievement of
technological feasibility and the availability of the Company's product for
general release. Therefore, the Company has no capitalized software development
costs at February 28, 1998 and 1999.
PROPERTY AND EQUIPMENT
Property and equipment is primarily comprised of furniture and computer
equipment which are recorded at cost and depreciated over their estimated useful
lives using the straight line method. Expenditures for maintenance and repairs
are charged to operations as incurred; major expenditures for renewals and
betterments are capitalized and depreciated. Property and equipment acquired
under capital leases are being depreciated over their estimated useful lives or
the respective lease term, if shorter. Depreciation periods used for property
and equipment are as follows:
<TABLE>
<S> <C>
Computer equipment........................................... 3 years
Furniture and fixtures....................................... 7 years
4 to 25
Leasehold improvements....................................... years
</TABLE>
F-8
<PAGE>
RED HAT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
OTHER ASSETS
Costs incurred for acquiring trademarks, copyrights and patents are
capitalized and amortized over their estimated useful lives, which range from 5
to 15 years, using the straight line method. Other assets also includes security
deposits which are expected to be refunded to the Company upon termination of
certain leases.
IMPAIRMENT OF LONG-LIVED ASSETS
The Company evaluates the recoverability of its property and equipment, and
other assets in accordance with Statement of Financial Accounting Standards No.
121, "Accounting for the Impairment of Long-Lived Assets to be Disposed of"
("SFAS 121"). SFAS 121 requires recognition of impairment of long-lived assets
in the event the net book value of such assets exceeds the estimated future
undiscounted cash flows attributable to such assets or the business to which
such intangible assets relate. No impairments were required to be recognized
during the years ended February 28, 1997, 1998 and 1999.
REVENUE RECOGNITION
Revenues from the sale of software products for which no technical support
is provided are generally recognized upon shipment of the products, net of
estimated returns. A reserve for sales returns is recognized for sales of
software products to distributors, who have a right of return, based on the
Company's historical experience of sell-through to the end user by the
distributor. The Company recognizes revenues from the sale of software products
to new distributors of its software products based upon sell-through to the end
user until the Company has sufficient historical experience with the distributor
to allow the accurate estimation of sales returns.
Upon the release of Version 6.0 of Official Red Hat Linux in May 1999, the
Company began providing certain telephone and e-mail technical support services
for a period of 90 days from the date of registration of the software products
for no additional fee. In accordance with the provisions of Statement of Opinion
No. 97-2, "Software Revenue Recognition" ("SOP 97-2"), the Company is
recognizing all of the revenue from the sale of Version 6.0 of Official Red Hat
Linux over the period that the technical support services are provided as the
Company does not sell these technical support services separately and therefore
does not have vendor specific objective evidence of the fair value of these
services. These revenues are recognized ratably over the period that the
technical support services are provided in proportion to the costs incurred to
provide such technical support services as compared to estimated total costs to
be incurred. The Company currently does not provide support and maintenance
services as part of the fee for any of its software products, other than Version
6.0 of Official Red Hat Linux.
Revenue for maintenance and support services, other than installation
support, is deferred and recognized ratably over the term of the agreement,
which is typically twelve months. Such revenues have been insignificant to date.
Revenue from customer training, and other services is recognized as the
service is performed.
Royalty revenue, which is included in services and other revenue, is
comprised primarily of royalties received from the sale of rights to the
Company's brand and trademark and royalties received from international
distributors of the Company's products. Royalty revenue is recognized
F-9
<PAGE>
RED HAT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
when received. Revenue from sale of books, which is include in software and
related products revenue, published by the Company, is recognized at the date of
shipment, net of estimated returns.
Web advertising revenue is recognized ratably in the period in which the
advertisement is displayed, provided that the Company has no significant
remaining obligations, at the lesser of the ratio of connections to the
advertiser's website delivered over total guaranteed connections to the
advertiser's website or the straight line basis over the term of the contract.
If minimum guaranteed connections are not met, the Company defers recognition of
the corresponding revenue until the guaranteed connections are achieved. The
Company did not generate revenue from the sale of advertising on its web site
during the fiscal years ended February 28, 1997, 1998 and 1999. The Company
began selling advertising space on its website during the three months ended May
31, 1999.
ROYALTY COSTS
Royalties that the Company is required to pay on applications licensed from
third parties that are a component of the software products sold by the Company
are expensed as cost of sales on a per unit basis as software products are sold.
Royalties paid in advance of the sale of the Company's software products are
included in prepaid expenses and recorded as expense when the related software
products are sold.
STOCK BASED COMPENSATION
The Company accounts for stock based compensation based on the provisions of
Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued to
Employees" ("APB No. 25"), which states that no compensation expense is recorded
for stock options or other stock-based awards to employees that are granted with
an exercise price equal to or above the estimated fair value per share of the
Company's common stock on the grant date. In the event that stock options are
granted with an exercise price below the estimated fair market value of the
Company's common stock at the grant date, the difference between the fair market
value of the Company's common stock and the exercise price of the stock option
is recorded as deferred compensation. Deferred compensation is amortized to
compensation expense over the vesting period of the stock option. The Company
recognized $100,301 in non-cash compensation expense related to amortization of
deferred compensation during the three months ended May 31, 1999. The Company
has adopted the disclosure requirements of Statement of Financial Accounting
Standards No. 123, "Accounting for Stock-Based Compensation" ("SFAS 123"), which
requires compensation expense to be disclosed based on the fair value of the
options granted at the date of the grant.
SALES AND MARKETING EXPENSES
Sales and marketing expenses consist primarily of costs, including salaries
and sales commissions, of all personnel involved in the sales process and
related expenses. Sales and marketing expenses also include costs of advertising
and trade shows. All costs of advertising, including cooperative marketing
arrangements, the software products, books and related services offered by the
Company are expensed as incurred. Advertising expense totaled $69,109, $152,939
and $597,822 for the years ended February 28, 1997, 1998 and 1999, respectively.
F-10
<PAGE>
RED HAT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
RESEARCH AND DEVELOPMENT COSTS
Research and development expenses include all direct costs, primarily
salaries for Company personnel and outside consultants, related to the
development of new products and significant enhancements to existing products
and are charged to operations as incurred until such time as technological
feasibility is achieved.
INCOME TAXES
The Company accounts for income taxes using the liability method which
requires the recognition of deferred tax assets or liabilities for the temporary
differences between financial reporting and tax bases of the Company's assets
and liabilities and for tax carryforwards at enacted statutory tax rates in
effect for the years in which the differences are expected to reverse. The
effect on deferred taxes of a change in tax rates is recognized in income in the
period that includes the enactment date. In addition, valuation allowances are
established when necessary to reduce deferred tax assets to the amounts expected
to be realized.
SIGNIFICANT CUSTOMERS AND CREDIT RISK
Financial instruments which potentially subject the Company to
concentrations of credit risk consist principally of temporary cash investments
and trade receivables. The Company places its temporary cash investments with
high-credit quality financial institutions which invest primarily in U.S.
Government instrumentalities, commercial paper of prime quality and certificates
of deposit guaranteed by banks which are members of the FDIC. The Company
performs ongoing credit evaluations to reduce credit risk and requires no
collateral from its customers. Management estimates the allowance for
uncollectible accounts based on their historical experience and credit
evaluation. Sales to one distributor comprised $416,501 or 16%, $1,340,462 or
26% and $2,135,733 or 20% of total revenues for the years ended February 28,
1997, 1998 and 1999, respectively. Sales to one other distributor comprised
$3,719,162 or 34% of total revenues for the year ended February 28, 1999.
Receivables from two distributors comprised 75% and 25%, respectively, of net
accounts receivable at February 28, 1999. Accounts receivable from one
distributor comprised 42% of net receivables at February 28, 1998.
All of the Company's software revenues are from sales transactions
originating in the United States. The Company has received certain royalty
payments from international sources; however, such amounts have been
insignificant to date.
CASH FLOWS
The Company made cash payments for interest of $23,304, $13,036, and $9,463
for the years ended February 28, 1997, 1998, and 1999, respectively. The Company
made no cash payments for income taxes during the years ended February 28, 1997
and 1998 and $163,831 during the year ended February 28, 1999.
The Company acquired property and equipment through the assumption of
capital lease obligations amounting to $22,466, $75,299 and $472,706 for the
years ended February 28, 1997, 1998, and 1999 respectively.
F-11
<PAGE>
RED HAT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
NET INCOME (LOSS) PER COMMON SHARE
HISTORICAL
The Company computes net income (loss) per common share in accordance with
Statement of Financial Accounting Standards No. 128, "Earnings Per Share,"
("SFAS 128") and SEC Staff Accounting Bulletin No. 98 ("SAB No. 98"). Under the
provisions of SFAS 128 and SAB No. 98, basic net income (loss) per common share
("Basic EPS") is computed by dividing net income (loss) available to common
stockholders by the weighted average number of common shares outstanding.
Diluted net income (loss) available to common stockholders per common share
("Diluted EPS") is computed by dividing net income (loss) by the weighted
average number of common shares and dilutive potential common share equivalents
then outstanding. Potential common shares consist of shares issuable upon the
exercise of stock options and warrants and shares issuable upon conversion of
outstanding mandatorily redeemable preferred stock. The calculation of the net
loss per share available to common stockholders for the fiscal year ended
February 28, 1999 does not include 24,299,071 potential shares of common stock
equivalents, as their impact would be antidilutive.
PRO FORMA (UNAUDITED)
Pro forma net income (loss) per common share is calculated assuming
conversion of all mandatorily redeemable preferred stock which converts
automatically upon the completion of the initial public offering into 31,890,676
and 33,945,452 shares of common stock (see Note 9) at February 28, 1999 and May
31, 1999, respectively. Therefore, accretion of mandatorily redeemable preferred
stock of $43,080 for the three months ended May 31, 1999 is excluded from the
calculation of pro forma net income (loss) per common share.
The calculation of pro forma net loss per common share for the three months
ended May 31, 1999 does not include 5,536,707 potential shares of common stock
equivalents, as their impact would be anti-dilutive.
SEGMENT REPORTING
In June 1997, the FASB issued Statement of Financial Accounting Standards
No. 131, "Disclosures about Segments of an Enterprise and Related Information"
("SFAS 131"). This statement requires companies to report information about
operating segments in interim and annual financial statements. It also requires
segment disclosures about products and services, geographic areas and major
customers. The Company adopted SFAS 131 effective for its fiscal year ended
February 28, 1998. The Company has determined that it did not have any
separately reportable operating segments as of February 28, 1997, 1998 or 1999
or as of May 31, 1999.
COMPREHENSIVE INCOME
In June 1997, the FASB issued Statement of Financial Accounting Standards
No. 130, "Reporting Comprehensive Income" ("SFAS 130"). SFAS 130 establishes
standards for reporting and display of comprehensive income and its components
in a full set of general-purpose financial statements. SFAS 130 is effective for
financial statements for fiscal years beginning after December 15, 1997. Its
adoption did not impact the Company's financial position, results of
F-12
<PAGE>
RED HAT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
operations, or cash flows as the Company had no items of other comprehensive
income during the three year period ended February 28, 1999 or the three months
ended May 31, 1998 and 1999.
RECENT ACCOUNTING PRONOUNCEMENTS
In June 1998, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards No. 133, "Accounting for Derivative
Instruments and Hedging Activities" ("SFAS 133"). SFAS 133 establishes
accounting and reporting standards for derivative instruments, including certain
derivative instruments embedded in other contracts (collectively referred to as
derivatives), and for hedging activities. SFAS 133 as amended by SFAS 137, is
effective for all fiscal quarters of all fiscal years beginning after June 15,
2000, with earlier application encouraged. The Company does not currently nor
does it intend in the future to use derivative instruments and therefore does
not expect that the adoption of SFAS 133 will have any impact on its financial
position or results of operations.
In March 1998, the Accounting Standards Executive Committee of the American
Institute of Certified Public Accountants ("AICPA"), issued Statement of
Position No. 98-1, "Accounting for the Costs of Computer Software Developed or
Obtained for Internal Use" ("SOP No. 98-1"), which provides guidance regarding
when software developed or obtained for internal use should be capitalized. SOP
No. 98-1 is effective for fiscal years beginning after December 15, 1998. The
adoption of SOP No. 98-1 in the three months ended May 31, 1999, did not have a
material impact on its financial position or results of operations.
In December 1998, the AICPA issued Statement of Position No. 98-9,
"Modification of SOP No. 97-2, Software Revenue Recognition, with Respect to
Certain Transactions" ("SOP No. 98-9"). SOP No. 98-9 amends SOP No. 97-2 to
require recognition of revenue using the "residual method" in circumstances
outlined in the SOP. Under the residual method, revenue is recognized as
follows: (1) the total fair value of undelivered elements, as indicated by
vendor specific objective evidence, is deferred and subsequently recognized in
accordance with the relevant sections of SOP No. 97-2 and (2) the difference
between the total arrangement fee and the amount deferred for the undelivered
elements is recognized as revenue related to the delivered elements. SOP No.
98-9 is effective for transactions entered into in fiscal years beginning after
March 15, 1999. Also, the provisions of SOP No. 97-2 that were deferred by SOP
No. 98-4 will continue to be deferred until the date SOP No. 98-9 becomes
effective. The Company does not expect that the adoption of SOP No. 98-9 will
have a significant impact on the Company's results of operations or financial
position.
F-13
<PAGE>
RED HAT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
3. ACCOUNTS RECEIVABLE
Accounts receivable, which are primarily from product sales, are presented
net of an allowance for doubtful accounts. The activity in the Company's
allowance for doubtful accounts for the years ended February 28, 1997, 1998 and
1999 is presented in the following table:
<TABLE>
<CAPTION>
BALANCE AT CHARGED TO BALANCE AT
BEGINNING INCOME OR END OF
YEAR ENDED FEBRUARY 28, OF PERIOD EXPENSE DEDUCTIONS (A) PERIOD
- ------------------------------------- ----------- ----------- --------------- -----------
<S> <C> <C> <C> <C>
1997................................. $ -- $ 38,986 $ (554) $ 38,432
1998................................. 38,432 38,141 (27,829) 48,744
1999................................. 48,744 185,092 (73,458) 160,378
</TABLE>
- ------------------------
(a) Represents amounts written-off as uncollectible accounts receivable.
4. PROPERTY AND EQUIPMENT
The Company's property and equipment consisted of the following:
<TABLE>
<CAPTION>
FEBRUARY 28, MAY 31,
--------------------- ----------
<S> <C> <C> <C>
1998 1999 1999
--------- ---------- ----------
Computer equipment...................... $ 420,523 $ 818,676 $1,410,246
Furniture and fixtures.................. 69,256 583,175 583,174
Leasehold improvements.................. -- 214,868 214,868
--------- ---------- ----------
489,779 1,616,719 2,208,288
Less: accumulated depreciation.......... (152,452) (346,143) (410,498)
--------- ---------- ----------
$ 337,327 $1,270,576 $1,797,790
--------- ---------- ----------
--------- ---------- ----------
</TABLE>
5. OTHER ASSETS
Other assets were comprised of the following:
<TABLE>
<CAPTION>
FEBRUARY 28, MAY 31,
-------------------- ---------
<S> <C> <C> <C>
1998 1999 1999
--------- --------- ---------
Security deposits............................ $ 11,900 $ 78,130 $ 11,900
Trademarks, patents and copyrights, net...... 69,288 73,180 72,706
Deferred offering costs...................... -- -- 427,834
--------- --------- ---------
$ 81,188 $ 151,310 $ 512,440
--------- --------- ---------
--------- --------- ---------
</TABLE>
F-14
<PAGE>
RED HAT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
6. FAIR VALUE OF FINANCIAL INSTRUMENTS
The carrying value of cash and cash equivalents, accounts payable and
accounts receivable at February 28, 1998 and 1999 approximated their fair value
due to the short-term nature of these items.
The fair value of the Company's short-term and long-term investments at
February 28, 1998 and 1999 approximated their carrying values as these
investments were primarily in short-term U.S. Government obligations.
7. ACCRUED EXPENSES
Accrued expenses were comprised of the following:
<TABLE>
<CAPTION>
FEBRUARY 28, MAY 31,
-------------------- ---------
1998 1999 1999
--------- --------- ---------
<S> <C> <C> <C>
Payroll...................................... $ -- $ 212,608 $ 22,064
Vacation..................................... 3,501 59,165 126,044
Taxes........................................ 5,151 14,025 9,623
Other........................................ 41,682 93,959 27,734
--------- --------- ---------
$ 50,334 $ 379,757 $ 185,465
--------- --------- ---------
--------- --------- ---------
</TABLE>
8. INCOME TAXES
The components of the Company's provision for income taxes consisted of the
following:
<TABLE>
<CAPTION>
YEAR ENDED FEBRUARY 28,
-------------------------------
1997 1998 1999
--------- --------- ---------
<S> <C> <C> <C>
Current tax provision:
Federal....................................... $ -- $ -- $ 149,284
State......................................... -- 4,906 65,402
--------- --------- ---------
Current tax expense........................... -- 4,906 214,686
--------- --------- ---------
Deferred tax benefit:
Federal....................................... -- -- --
State......................................... -- -- --
--------- --------- ---------
Deferred tax benefit.......................... -- -- --
--------- --------- ---------
Net provision for income taxes.............. $ -- $ 4,906 $ 214,686
--------- --------- ---------
--------- --------- ---------
</TABLE>
F-15
<PAGE>
RED HAT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
8. INCOME TAXES (CONTINUED)
Significant components of the Company's deferred tax assets and liabilities
at February 28, 1999 and 1998 consisted of the following:
<TABLE>
<CAPTION>
FEBRUARY 28,
--------------------
1998 1999
--------- ---------
<S> <C> <C>
Domestic net operating loss carryforwards............ $ 23,697 $ --
Accounts receivable.................................. 21,818 217,777
Allowance for inventory obsolescence................. -- 70,785
Research and development credit...................... 67,629 --
Other accruals....................................... 1,376 22,947
--------- ---------
Total deferred tax assets.......................... 114,520 311,509
Valuation allowance for deferred tax assets.......... (109,040) (307,423)
--------- ---------
Deferred tax assets................................ 5,480 4,086
--------- ---------
Property and equipment............................... (5,480) (4,086)
--------- ---------
Total deferred tax liabilities..................... (5,480) (4,086)
--------- ---------
Net deferred tax assets............................ $ -- $ --
--------- ---------
--------- ---------
</TABLE>
As of February 28, 1998 and 1999, and May 31, 1999 the Company provided a
full valuation allowance against its net deferred tax assets since realization
of these benefits can not be reasonably assured. An increase in the valuation
allowance was recorded during fiscal 1999 and the three months ended May 31,
1999 to reserve the increase in total deferred tax assets at February 28, 1999
and May 31, 1999 due to uncertainty of realizability.
As of February 28, 1998, the Company had federal and state net operating
loss carryforwards of approximately $70,000. This carryforward was fully
utilized during 1999.
Taxes computed at the statutory federal income tax rate of 34% are
reconciled to the provision for income taxes as follows:
<TABLE>
<CAPTION>
1997 1998 1999
--------- --------- ---------
<S> <C> <C> <C>
Effective rate............................... 0% 39% 174%
--------- --------- ---------
United States Federal tax at statutory
rate....................................... $ 12,214 $ 4,311 $ 42,030
State taxes (net of Federal benefit)......... 1,897 13,392 7,619
Change in valuation reserves................. (17,040) 28,993 198,477
Research and development credit.............. -- (67,629) (43,959)
Non-deductible items......................... 2,929 25,839 10,519
--------- --------- ---------
Provision for income taxes................... $ -- $ 4,906 $ 214,686
--------- --------- ---------
--------- --------- ---------
</TABLE>
9. MANDATORILY REDEEMABLE PREFERRED STOCK
The Company has authorized 6,801,400, 8,116,550 and 2,054,776 shares of
Series A, Series B and Series C mandatorily redeemable preferred stock,
respectively. The shares of Series A,
F-16
<PAGE>
RED HAT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
9. MANDATORILY REDEEMABLE PREFERRED STOCK (CONTINUED)
Series B and Series C mandatorily redeemable preferred stock have a par value of
$0.0001 per share.
On August 15, 1997, the Company entered into a purchase agreement with an
investor (the "Series A Investor"). In connection with this agreement, the
Company issued 6,801,400 shares of Series A preferred stock to the Series A
Investor for $2,000,000 or $0.2941 per share, less related issuance costs of
$16,791. The Series A preferred stock became mandatorily redeemable with the
issuance of the Series B mandatorily preferred stock in September 1998.
On September 29, 1998, the Company entered into a purchase agreement with
several investors (the "Series B Investors"). In connection with this agreement,
the Company issued 8,116,550 shares of Series B mandatorily redeemable preferred
stock to the Series B Investors for $6,955,884, or $0.857 per share, less
related issuance costs of $66,621.
On February 25, 1999, the Company entered into a purchase agreement with
several investors (the "Series C Investors"). In connection with this agreement,
the Company issued 1,027,388 shares of Series C mandatorily redeemable preferred
stock to the Series C Investors for $3,227,026, or $3.141 per share.
The Company had additional closings of the Series C mandatorily redeemable
preferred stock financing subsequent to February 28, 1999. Additional Series C
Investors purchased 1,027,388 shares of Series C mandatorily redeemable
preferred stock for $3,227,026, or $3.141 per share in March and April of 1999.
Total issuance costs related to sales of Series C mandatorily redeemable
preferred stock were $62,870.
DIVIDENDS
The Series A, Series B and Series C stockholders (the "Holders") are not
entitled to dividends unless dividends are declared on shares of common stock,
in which case the Holders shall receive a distribution on each outstanding share
of Series A, Series B and Series C mandatorily redeemable preferred stock on an
as if converted basis.
CONVERSION
Each share of Series A, Series B and Series C mandatorily redeemable
preferred stock can be converted to common stock at the option of the Holders at
a two-to-one conversion rate, after certain adjustments. This conversion rate
shall be adjusted upon the issuance by the Company of additional common shares
(with certain exceptions) for consideration per share less than $0.343 per
share, in the case of Series A mandatorily redeemable preferred stock, $0.996
per share, in the case of Series B mandatorily redeemable preferred stock and
$3.893 per share, in the case of Series C mandatorily redeemable preferred
stock. The conversion rate shall also be adjusted for common stock splits,
reverse common stock splits, dividends and distributions.
Each share of Series A, Series B and Series C mandatorily redeemable
preferred stock will be automatically converted into shares of common stock, at
the then effective conversion rate, upon the closing of a sale of the common
stock of the Company in a qualified public offering.
F-17
<PAGE>
RED HAT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
9. MANDATORILY REDEEMABLE PREFERRED STOCK (CONTINUED)
VOTING RIGHTS
Holders of Series A, Series B and Series C mandatorily redeemable preferred
stock have the right to one vote for each common share into which such shares
could then be converted, as described above.
LIQUIDATION
In the event of the liquidation, dissolution or winding up of the Company,
Holders shall be entitled to receive, prior to any distributions to common
stockholders, an amount in cash equal to the greater of (i) $0.343 per share, in
the case of Series A, $0.996 per share, in the case of Series B, and $3.893 per
share, in the case of Series C, plus any dividends declared but unpaid, or (ii)
such amount per share as would have been payable had each such share been
converted into common stock immediately prior to liquidation, dissolution or
winding up, as described above. In the event that assets of the Company are
insufficient to permit payment of the above mentioned amounts, the Holders shall
share ratably in any distribution of the remaining assets and funds of the
Company in proportion to the respective amounts which would otherwise be payable
under these circumstances.
REDEMPTION
The Company could be required to redeem the Series A, Series B and Series C
mandatorily redeemable preferred stock from the Holders upon receipt of written
request from Holders of shares representing at least 66 2/3% of the aggregate
number of shares of common stock issuable upon conversion. Redemption may first
be made by the Holders on February 25, 2004 and on each of the first and second
anniversaries thereof. Redemption is limited to 33% and 50% of the Series A,
Series B and Series C shares outstanding on February 25, 2004 and the first
anniversary thereof, respectively. There is no limitation on the number of
shares on February 25, 2006. The redemption price is equal to $0.343 per share
in the case of Series A, $0.996 per share, in the case of Series B and $3.893
per share, in the case of Series C, after adjustment for certain events. The
carrying value of the Company's mandatorily redeemable preferred stock is being
accreted to its redemption price over the redemption period using the effective
interest rate method. In conjunction with the sale of the Series B mandatorily
redeemable preferred stock, the Series A mandatorily redeemable preferred stock
became mandatorily redeemable.
CARRYING VALUE
The Series A, Series B and Series C mandatorily redeemable preferred stock
were initially recorded at the total net proceeds received by the Company upon
issuance. The difference between the total net proceeds at issuance of
$12,068,063 and the total redemption price of $14,416,585 is charged to
accumulated deficit over the period from issuance until redemption first becomes
available. The amount of accretion recognized during each period is determined
by using the effective interest rate method. For the year ended February 28,
1999 the accretion was $39,356. The Company had no outstanding mandatorily
redeemable preferred stock prior to the fiscal year ended February 28, 1999. The
Company sold an additional 1,027,388 shares of Series C preferred stock for net
proceeds of $3,164,156 in March and April 1999 with a redemption value of
$4,004,758. Accretion on preferred stock was $43,080 for the three months ended
May 31, 1999.
F-18
<PAGE>
RED HAT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
10. COMMON STOCK
On September 28, 1998, the Company effected a 100 for 1 stock split for
holders of its common stock. Amounts presented for the periods prior to the
stock split have been restated to reflect the stock split on a retroactive
basis.
The Company has authorized 68,620,652 shares of common stock with a par
value of $0.0001 per share. Holders of these shares have one vote per share.
Upon the dissolution, liquidation or winding up of the Company, holders of
common stock will be entitled to receive the assets of the Company after
satisfaction of the preferential rights of the outstanding Series A, Series B
and Series C mandatorily redeemable preferred stock or any other outstanding
stock ranking on liquidation senior to or on parity with the common stock.
On September 29, 1998, in connection with the above mentioned sale of Series
B mandatorily redeemable preferred stock, certain stockholders, primarily
comprised of officers of the Company, entered into a common stock purchase
agreement with the Series B Investors. In connection with this agreement, those
stockholders sold 2,625,500 shares of common stock to the Series B Investors for
$1,125,000 or $0.429 per share.
On February 25, 1999, in connection with the above mentioned sale of Series
C mandatorily redeemable preferred stock, certain stockholders, primarily
comprised of officers of the Company, entered into a common stock purchase
agreement with the Series C Investors. In connection with this agreement, those
stockholders sold 492,184 shares of common stock to the Series C Investors for
$772,975 or $1.571 per share. Upon additional closings of the Series C
mandatorily redeemable preferred stock financing in March and April of 1999, an
additional 492,184 shares of common stock were sold by certain stockholders,
primarily comprised of officers of the Company, to the additional Series C
Investors for $772,975 or $1.571 per share.
11. STOCK OPTIONS AND WARRANTS
STOCK OPTIONS
During September 1998, the Company's Board of Directors approved a stock
option plan. As of February 28, 1999 and May 31, 1999, 7,434,800 shares of
common stock were reserved for issuance upon exercise of options granted to any
employee, officer or director or consultant of the Company at terms and prices
to be determined by the Board of Directors. In June 1999, the option pool was
increased to 9,434,800 shares. The plan provides that the exercise price per
share and the purchase price per share for each non-qualified option should be
set by the Board on the date of grant. The price for each Incentive Stock Option
(ISO) shall not be less than the fair market value of the common stock on the
date of grant. The maximum term for an option granted is ten years from the date
of grant. The Company believes that all options and warrants, granted through
February 28, 1999, have been granted at their fair values on their respective
grant dates. Options granted under the plan generally vest 25% upon completion
of one full year of service and 6.25% on the first day of each subsequent
three-month period. All options are immediately exercisable upon grant into
restricted shares of the Company's common stock with the same vesting provisions
as the original option. The Company, at its option, may repurchase these
restricted shares at the original purchase price under certain circumstances.
F-19
<PAGE>
RED HAT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
11. STOCK OPTIONS AND WARRANTS (CONTINUED)
The activity for the stock option plan for the year ended February 28, 1999
and for the period from March 1, 1999 to May 31, 1999 is presented in the
following table. Prior to March 1, 1998, the Company had granted no stock
options.
<TABLE>
<CAPTION>
WEIGHTED
SHARES AVERAGE
UNDERLYING EXERCISE PRICE
OPTIONS PER SHARE
----------- -----------------
<S> <C> <C>
Outstanding at February 28, 1998............................... -- $ --
Granted........................................................ 4,322,570 0.36
Forfeited...................................................... (20,000) 0.18
-----------
Outstanding at February 28, 1999............................... 4,302,570 0.36
Granted (unaudited)............................................ 3,207,070 2.17
Exercised (unaudited).......................................... (2,091,552) 0.88
Forfeited (unaudited).......................................... (49,000) 0.89
-----------
Outstanding at May 31, 1999 (unaudited)........................ 5,369,088 $ 1.23
</TABLE>
The Company recorded deferred compensation of $3,677,999 during the three
months ended May 31, 1999 to reflect the difference between the aggregate fair
market value and exercise price during this period of all stock options granted
with an exercise price below the fair market value of the Company's common stock
at the date of the grant.
During June 1999, the Company granted stock options for the purchase of a
total of 333,800 shares to employees. An additional $1,851,360 in deferred
compensation was recorded related to the grant of these options. As of June 30,
1999, the Company had outstanding stock options for the purchase of 5,176,888
shares with a weighted average exercise price of $1.58.
In July 1999, the Company granted 350,000 stock options with an exercise
price of $5.00 per share to an executive. The Company recorded $2,100,000 in
deferred compensation related to this grant in July 1999.
F-20
<PAGE>
RED HAT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
11. STOCK OPTIONS AND WARRANTS (CONTINUED)
The following summarizes information about the Company's stock options at
February 28, 1999:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
------------------------------------------ -------------------------
WEIGHTED WEIGHTED WEIGHTED
AVERAGE AVERAGE AVERAGE
EXERCISE NUMBER CONTRACTURAL EXERCISE NUMBER EXERCISE
PRICES OUTSTANDING LIFE PRICE EXERCISABLE PRICE
- ----------- ------------ --------------- ----------- ------------ -----------
<S> <C> <C> <C> <C> <C>
$ 0.18 1,200,000 9.58 $ 0.18 1,200,000 $ 0.18
$ 0.43 3,102,570 9.67 $ 0.43 3,102,570 $ 0.43
</TABLE>
<TABLE>
<CAPTION>
EXERCISE NUMBER OF
DATE OF GRANT PRICE SHARES
- ----------------------------------------------------- ----------- -----------
<S> <C> <C>
March 1999........................................... $ 1.57 212,000
April 1999........................................... $ 1.57 2,393,972
May 3, 1999.......................................... $ 1.57 40,000
May 10, 1999......................................... $ 5.00 561,098
June 16, 1999........................................ $ 5.00 79,200
June 30, 1999........................................ $ 10.80 14,600
June 30, 1999........................................ $ 5.00 240,000
-----------
3,540,870
</TABLE>
STOCK WARRANTS
On October 10, 1995, the Company issued warrants (which are equivalent to
nonqualified stock options) to purchase 3,740,400 shares of common stock to
three of its employees with an exercise price of $.0001 per share. The warrants
vest 25% annually on each May 1, beginning May 1, 1996 and ending May 1, 1999.
The warrants terminate upon death, permanent disability, termination of
employment or May 1, 2006. The Company and certain founding shareholders have a
right of first refusal to purchase the warrant shares on the same terms as a
proposed purchaser and a right to purchase the shares upon the death,
disability, or termination of employment of the employee. Upon the death,
disability, or termination without cause of the employee, the purchase price
shall be 80% of the fair market value of the Company's common stock as
determined by the board of directors. If the employee is terminated for cause,
the purchase price shall be 80% of the lesser of the book value or the fair
market value of the Company's common stock.
F-21
<PAGE>
RED HAT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
11. STOCK OPTIONS AND WARRANTS (CONTINUED)
The activity for the stock warrants is presented in the following table:
<TABLE>
<CAPTION>
YEAR ENDED FEBRUARY 28,
----------------------------------------------------------------------------
1997 1998 1999
------------------------ ------------------------ ------------------------
WEIGHTED WEIGHTED WEIGHTED
AVERAGE AVERAGE AVERAGE
SHARES EXERCISE SHARES EXERCISE SHARES EXERCISE
UNDERLYING PRICE UNDERLYING PRICE UNDERLYING PRICE
WARRANTS PER SHARE WARRANTS PER SHARE WARRANTS PER SHARE
----------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
Outstanding at beginning
of year................ 3,740,400 $ 0.0001 3,740,400 $ 0.0001 3,740,400 $ 0.0001
----------- ----------- ----------- ----------- ----------- -----------
Exercised................ -- -- -- -- (352,950) $ 0.0001
Outstanding at end of
year................... 3,740,400 $ 0.0001 3,740,400 $ 0.0001 3,387,450 $ 0.0001
Exercisable at end of
year................... 935,100 $ 0.0001 1,870,200 $ 0.0001 2,452,350 $ 0.0001
</TABLE>
During the three month period ended May 31, 1999, warrants to purchase
190,000 shares were exercised. At May 31, 1999, warrants to purchase 3,197,450
shares remained outstanding. Amounts as of May 31, 1999 are unaudited.
SFAS 123 requires the Company to disclose pro forma information regarding
option grants made and warrants issued to its employees. SFAS 123 specifies
certain valuation techniques that produce estimated compensation charges that
are included in the pro forma results below. These amounts have not been
reflected in the Company's statement of operations, because APB No. 25 specifies
that no compensation charge arises when the exercise price of employees' stock
options and warrants equal the market value of the underlying stock at the grant
date, as in the case of options and warrants granted to the Company's employees.
The fair value of options and warrants was estimated using the minimum value
method with the following assumptions:
<TABLE>
<CAPTION>
EMPLOYEE EMPLOYEE
STOCK STOCK
OPTIONS WARRANTS
------------- -------------
<S> <C> <C>
Expected dividend yield............................. 0.00% 0.00%
Risk-free interest rate............................. 4.98% 5.81%
Expected volatility................................. 0.00% 0.00%
Expected life (in years)............................ 6 6
</TABLE>
SFAS 123 pro forma numbers are as follows:
<TABLE>
<CAPTION>
1999
---------
<S> <C>
Net loss available to common stockholders as reported
under APB No. 25............................................... $ 130,424
Pro forma net loss available to common stockholders.............. $ 287,288
</TABLE>
The Company did not grant any stock options or warrants in fiscal 1998 or
1997 and, therefore, no pro forma disclosure for these years is provided.
F-22
<PAGE>
RED HAT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
11. STOCK OPTIONS AND WARRANTS (CONTINUED)
The weighted average estimated fair value of employee stock options granted
during the year ended February 28, 1999 was $0.27 per share. The weighted
average estimated fair value of the warrants at the time of grant was $0.0001
per share.
12. COMMITMENTS AND CONTINGENCIES
As of February 28, 1999, the Company leased office space and certain
equipment under various noncancelable operating and capital leases. Future
minimum lease payments required under the operating and capital leases at
February 28, 1999 are as follows:
<TABLE>
<CAPTION>
OPERATING CAPITAL
LEASES LEASES
---------- ---------
<S> <C> <C>
2000................................................. $ 945,612 $ 139,698
2001................................................. 934,208 136,901
2002................................................. 931,283 120,863
2003................................................. 932,200 112,089
2004................................................. 819,266 99,687
---------- ---------
Total minimum lease payments....................... $4,562,569 609,238
----------
----------
Less amount representing interest (at rates ranging
from 8.2% to 9.6%)................................. 80,563
---------
Present value of net minimum lease payments.......... 528,675
Less current portion................................. 108,897
---------
Long-term portion.................................. $ 419,778
---------
---------
</TABLE>
Rent expense under operating leases for the years ended February 28, 1997,
1998 and 1999 was $86,313, $171,191 and $308,973 respectively.
The Company has entered into an agreement with a bank to provide a letter of
credit pertaining to its building lease. The Company is required by the bank to
maintain a compensating balance of $65,000 which is equal to the amount of the
letter of credit. This amount is included in cash and cash equivalents.
The Company has executed licensing contracts to publish, bundle and
distribute software products developed by other companies in return for royalty
payments based on a percentage of the revenues generated by the Company from the
sale of these products. Prepaid royalty payments are included in current assets
and royalty payments due are included in royalties payable.
In April 1999, the Company also contracted with a web support firm to
maintain its backup web site. The initial fee of $98,000 was due upon receipt
and installation of the hardware. The Company has agreed to pay a monthly
maintenance fee of $17,000 for a period of 36 months.
13. EMPLOYEE BENEFIT PLAN
The Company provides a retirement plan qualified under Section 401(k) of the
Internal Revenue Code ("IRC") of 1986, as amended. Participants may elect to
contribute a portion of their annual compensation to the plan, after complying
with certain limitations set by the IRC. Employees are
F-23
<PAGE>
RED HAT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
13. EMPLOYEE BENEFIT PLAN (CONTINUED)
eligible to participate in the plan who are over 21 years of age and have
completed three months of service with Red Hat. If, however, an employee was
employed by the Company prior to February 1999, the 401(k) Plan covers such
employee regardless of age or length of service. The Company has the option to
make contributions to the plan but did not make any contributions to the plan
for the years ended February 28, 1997, 1998 and 1999.
14. SUBSEQUENT EVENTS
On June 2, 1999, the Board of Directors approved a two-for-one common stock
split to be effective prior to the effective date of the Company's planned
initial public offering. All share and per share information in the accompanying
financial statements and notes to the financial statements has been
retroactively restated to reflect the effect of this stock split.
In addition, the Board of Directors approved an amendment to the certificate
of incorporation to take effect as of the effective date of the registration
statement, increasing the authorized capital stock to 225,000,000 shares of
common stock and 5,000,000 shares of preferred stock each with a par value of
$.0001 per share.
F-24
<PAGE>
UNDERWRITING
Red Hat and the underwriters named below have entered into an underwriting
agreement concerning the shares being offered. Each underwriter has severally
agreed to purchase the number of shares indicated in the following table.
Goldman, Sachs & Co., Thomas Weisel Partners LLC, Hambrecht & Quist LLC and
E*OFFERING Corp. are the representatives of the underwriters.
<TABLE>
<CAPTION>
Number of
Underwriters Shares
- ---------------------------------------------------------------- -----------
<S> <C>
Goldman, Sachs & Co. ...........................................
Thomas Weisel Partners LLC......................................
Hambrecht & Quist LLC...........................................
E*OFFERING Corp.................................................
-----------
Total................................................... 6,000,000
-----------
-----------
</TABLE>
If the underwriters sell more shares than the total number presented in the
table above, the underwriters have an option to buy up to an additional 900,000
shares from Red Hat to cover such sales. They may exercise that option for 30
days. If any shares are purchased upon exercise of this option, the underwriters
will severally purchase shares in approximately the same proportion as presented
in the table above.
The following table shows the per share and total underwriting discounts and
commissions to be paid to the underwriters by Red Hat. These amounts are shown
assuming both no exercise and full exercise of the underwriters' option to
purchase additional shares.
Paid by Red Hat
<TABLE>
<CAPTION>
No Full
Exercise Exercise
----------- -----------
<S> <C> <C>
Per Share...... $ $
Total.......... $ $
</TABLE>
Shares sold by the underwriters to the public will initially be offered at
the initial public offering price presented on the cover of this prospectus. Any
shares sold by the underwriters to securities dealers may be sold at a discount
of up to $ per share from the initial public offering price. Any of these
securities dealers may resell any shares purchased from the underwriters to
certain other brokers or dealers at a discount of up to $ per share from the
initial public offering price. If all the shares are not sold at the initial
offering price, the representatives may change the offering price and the other
selling terms.
Red Hat and its officers, directors, and securityholders have agreed with
the underwriters not to dispose of or hedge any of its common stock or
securities convertible into or exchangeable for shares of common stock during
the period from the date of this prospectus continuing through the date 180 days
after the date of this prospectus, except with the prior written consent of
Goldman Sachs. See "Shares Eligible for Future Sale" for a discussion of
restrictions by transfer of Red Hat's common stock.
At the request of Red Hat, the underwriters have reserved up to 800,000
shares of common stock for sale, at the initial public offering price through a
directed share program, to directors, officers, employees of Red Hat and to open
source software developers and other persons that Red Hat believes have
contributed to the success of the open source software community and the growth
of Red Hat through a directed share program. There can be no assurance that any
of the reserved shares will be so purchased. The number of shares of common
stock available for sale to the general public in the public offering will be
reduced to the extent these persons purchase these reserved shares. Any reserved
shares not so purchased will be
U-1
<PAGE>
offered to the general public on the same basis as the other shares offered
hereby.
Thomas Weisel Partners LLC, one of the representatives of the underwriters,
was organized and registered as a broker-dealer in December 1998. Since December
1998, Thomas Weisel Partners has been named as a lead or co-manager of 41 filed
public offerings of equity securities, of which 24 have been completed, and has
acted as a syndicate member in an additional 19 public offerings of equity
securities. Thomas Weisel Partners does not have any material relationship with
Red Hat or any of our officers, directors or other controlling persons, except
for its contractual relationship with Red Hat under the terms of the
underwriting agreement entered into in connection with this offering.
Prior to this offering, there has been no public market for our common
stock. The initial public offering price will be negotiated among Red Hat and
the representatives. Among the factors to be considered in determining the
initial public offering price of the shares, in addition to prevailing market
conditions, will be Red Hat's historical performance, estimates of the business
potential and earnings prospects of Red Hat, an assessment of Red Hat's
management and the consideration of the above factors in relation to market
valuation of companies in related businesses.
Red Hat has applied to list the common stock on the Nasdaq National Market
under the symbol "RHAT".
In connection with this offering, the underwriters may purchase and sell
shares of common stock in the open market. These transactions may include short
sales, stabilizing transactions and purchases to cover positions created by
short sales. Short sales involve the sale by the underwriters of a greater
number of shares than they are required to purchase in the offering. Stabilizing
transactions consist of certain bids or purchases made for the purpose of
preventing or retarding a decline in the market price of the common stock while
the offering is in progress.
The underwriters also may impose a penalty bid. This occurs when a
particular underwriter repays to the underwriters a portion of the underwriting
discount received by it because the representatives have repurchased shares sold
by or for the account of that underwriter in stabilizing or short covering
transactions.
These activities by the underwriters may stabilize, maintain or otherwise
affect the market price of the common stock. As a result, the price of the
common stock may be higher than the price that otherwise might exist in the open
market. If these activities are commenced, they may be discontinued by the
underwriters at any time. These transactions may be effected on the Nasdaq
National Market, in the over-the-counter market or otherwise.
The underwriters do not expect sales to discretionary accounts to exceed
five percent of the total number of shares offered.
Red Hat estimates that its share of the total expenses of the offering,
excluding underwriting commissions, will be approximately $1,250,000.
Red Hat has agreed to indemnify the several underwriters against certain
liabilities, including liabilities under the Securities Act.
U-2
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
No dealer, salesperson or other person is authorized to give any information
or to represent anything not contained in this prospectus. This prospectus is an
offer to sell only the shares offered hereby, but only under circumstances and
in jurisdictions where it is lawful to do so. The information contained in this
prospectus is current only as of its date.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Prospectus Summary........................................................ 3
Risk Factors.............................................................. 7
Special Note Regarding Forward-Looking Statements......................... 18
Use of Proceeds........................................................... 18
Dividend Policy........................................................... 18
Capitalization............................................................ 19
Dilution.................................................................. 20
Selected Financial Data................................................... 21
Management's Discussion and Analysis of Financial Condition and Results of
Operations.............................................................. 23
Business.................................................................. 40
Management................................................................ 55
Transactions with Affiliates.............................................. 62
Principal Stockholders.................................................... 63
Description of Capital Stock.............................................. 64
Shares Eligible for Future Sale........................................... 67
Legal Matters............................................................. 69
Experts................................................................... 69
Where You Can Find More Information....................................... 69
Index to Financial Statements............................................. F-1
Underwriting.............................................................. U-1
</TABLE>
------------------------
Through and including , 1999 (the 25th day after the date of this
prospectus), all dealers effecting transactions in these securities, whether or
not participating in this offering, may be required to deliver a prospectus.
This is in addition to the dealer's obligation to deliver a prospectus when
acting as an underwriter and concerning an unsold allotment or subscription.
6,000,000 Shares
Red Hat
Common Stock
----------------
[LOGO]
----------------
GOLDMAN, SACHS & CO.
THOMAS WEISEL PARTNERS LLC
HAMBRECHT & QUIST
E*OFFERING
Representatives of the Underwriters
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses payable in connection with the sale of the common stock
in this offering are as follows:
<TABLE>
<S> <C>
SEC registration fee........................................... $ 26,855
NASD filing fee................................................ 10,160
Nasdaq National Market listing fee............................. 95,000
Printing and engraving expenses................................ 125,000
Legal fees and expenses........................................ 500,000
Accounting fees and expenses................................... 250,000
Transfer agent and registrar fees and expenses................. 10,000
Miscellaneous.................................................. 232,985
----------
Total.................................................... $1,250,000
----------
----------
</TABLE>
The registrant will bear all of the expenses shown above.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law, the registrant's charter and by-laws
provide for indemnification of the registrant's directors and officers for
liabilities and expenses that they may incur in such capacities. In general,
directors and officers are indemnified with respect to actions taken in good
faith in a manner reasonably believed to be in, or not opposed to, the best
interests of the registrant, and with respect to any criminal action or
proceeding, actions that the indemnitee had no reasonable cause to believe were
unlawful. Reference is made to the registrant's corporate charter filed as
Exhibits 3.2 and 3.3 hereto and the registrants by-laws filed as Exhibit 3.5
hereto.
The underwriting agreement provides that the underwriters are obligated,
under certain circumstances, to indemnify directors, officers and controlling
persons of the registrant against certain liabilities, including liabilities
under the Securities Act. Reference is made to the form of underwriting
agreement filed as Exhibit 1.1 hereto.
The registrant intends to apply for a directors' and officers' insurance
policy.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
In the three years preceding the filing of this registration statement, the
registrant has sold the following securities that were not registered under the
Securities Act:
On August 15, 1997, the registrant sold an aggregate of 6,801,400 shares of
its Series A convertible preferred stock to one investor at a price of $.294057
per share.
On September 29, 1998, the registrant sold an aggregate of 8,116,550 shares
of its Series B convertible preferred stock to five investors at a price of
$.857 per share.
During the period between February 25, 1999 and April 1, 1999, the
registrant sold an aggregate of 2,054,776 shares of its Series C convertible
preferred stock to ten investors at a price of $3.141 per share.
On October 10, 1995, the registrant issued warrants to certain employees
exercisable for an aggregate of 3,740,400 shares of common stock with an
exercise price per share of $.0001.
II-1
<PAGE>
From September 4, 1998 through July 31, 1999, the registrant has granted
options to purchase an aggregate of 8,709,340 shares of common stock under the
1998 Stock Option Plan, as amended, exercisable at a weighted average price of
$3.90 per share.
No underwriters were involved in the foregoing sales of securities. Such
sales were made in reliance upon the exemption provided by Section 4(2) of the
Securities Act for transactions not involving a public offering and/or Rule 701
under the Securities Act.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) EXHIBITS:
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT INDEX
- --------- ----------------------------------------------------------------------------------
<C> <S>
1.1* Form of Underwriting Agreement
3.1* Second Amended and Restated Certificate of Incorporation, as amended, of the
registrant (currently in effect)
3.2* Form of Third Amended and Restated Certificate of Incorporation of the registrant
to be filed upon the effectiveness of the registration statement
3.3* Form of Certificate of Amendment to the Third Amended and Restated Certificate of
Incorporation to be filed upon the closing of the offering
3.4* By-laws of the registrant
3.5* Form of Amended and Restated By-laws to take effect as of the effective date of
the registration statement
4.1* Specimen certificate representing the common stock
5.1* Opinion of Testa, Hurwitz & Thibeault, LLP
10.1* 1998 Stock Option Plan, as amended
10.2* 1999 Stock Option and Incentive Plan
10.3* 1999 Employee Stock Purchase Plan
10.4* Warrant Agreement by and among the registrant, Robert F. Young, Nancy R. Young,
Marc Ewing and Erik Troan, dated as of September 29, 1998, as amended
10.5* Warrant Agreement, by and among the registrant, Robert F. Young, Nancy R. Young,
Marc Ewing and Donald Barnes, dated as of September 29, 1998, as amended
10.6* Warrant Agreement by and among the registrant, Robert F. Young, Nancy R. Young,
Marc Ewing and Lisa Sullivan, dated as of September 29, 1998, as amended
10.7* First Amended and Restated Investor Rights Agreement by and among the registrant
and the Investors and Founders listed therein, dated as of February 25, 1999, as
amended
10.8* Office Lease by and between the registrant and CMD Properties, Inc., dated
November 13, 1998
10.9* Non-Qualified Stock Option Agreement by and between the registrant and Matthew
Szulik
10.10* Incentive Stock Option Agreement by and between the registrant and Matthew Szulik
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT INDEX
- --------- ----------------------------------------------------------------------------------
<C> <S>
10.11* Non-Qualified Stock Option Agreement by and between the registrant and Timothy
Buckley
10.12* Incentive Stock Option Agreement by and between the registrant and Timothy Buckley
10.13* GNU General Public License
10.14+ Distribution Agreement by and between the registrant and Ingram Micro Inc. dated
as of October 15, 1998, as amended
10.15+ Red Hat Product Distribution Agreement by and between the registrant and Frank
Kasper Associates, Inc., dated as of April 30, 1999
10.16+ Software Distribution Agreement between Tech Data Product Management, Inc. and the
registrant, dated as of April 29, 1999
10.17+* Agreement by and between the registrant and Building Number Three, Ltd., dated as
of June 10, 1998
10.18+* Independent Contractor Agreement by and between the registrant and Ingo Molnar,
dated as of August 18, 1998
10.19+ Software License and Shipment Agreement by and among the registrant, Dell Products
L.P. and Dell Computer Corporation, dated as of February 25, 1999
23.1* Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1* Power of Attorney
27.1* Financial Data Schedule
27.2* Financial Data Schedule
</TABLE>
- ------------------------
+ Confidential materials omitted and filed separately with the Securities and
Exchange Commission.
* Previously filed.
(b) FINANCIAL STATEMENTS SCHEDULES:
All schedules for which provision is made in the applicable accounting
regulations of the Securities and Exchange Commission are not required under the
related instructions, the required information is disclosed in the notes to the
financial statements or the schedules are inapplicable, and therefore have been
omitted.
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 provisions described in Item 14 above, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
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
II-3
<PAGE>
securities being registered, 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 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 registrant hereby undertakes (1) to provide to the underwriters at the
closing specified in the underwriting agreement certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser; (2) that for purposes of determining
any liability under the Securities Act, the information omitted from the form of
prospectus filed as part of a registration statement in reliance upon Rule 430A
and contained in the 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; and (3)
that 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this amendment no. 3 to the registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in Durham, North
Carolina on August 5, 1999.
RED HAT, INC.
BY: /S/ MATTHEW SZULIK
-----------------------------------------
Matthew Szulik
PRESIDENT
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, this amendment
no. 3 to the registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ --------------------------- -------------------
<C> <S> <C>
Chairman and Chief
* Executive Officer
- ------------------------------ (principal executive August 5, 1999
Robert F. Young officer)
* Chief Financial Officer
- ------------------------------ (principal financial and August 5, 1999
Manoj George accounting officer)
* Director
- ------------------------------ August 5, 1999
Marc Ewing
* Director
- ------------------------------ August 5, 1999
Frank Batten, Jr.
* Director
- ------------------------------ August 5, 1999
William S. Kaiser
/s/ MATTHEW SZULIK Director
- ------------------------------ August 5, 1999
Matthew Szulik
* Director
- ------------------------------ August 5, 1999
Eric Hahn
</TABLE>
<TABLE>
<S> <C>
By: /S/ MATTHEW SZULIK
--------------------------
Matthew Szulik
Attorney-in-Fact
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT INDEX
- --------- ----------------------------------------------------------------------------------
<C> <S>
1.1* Form of Underwriting Agreement
3.1* Second Amended and Restated Certificate of Incorporation, as amended, of the
registrant (currently in effect)
3.2* Form of Third Amended and Restated Certificate of Incorporation of the registrant
to be filed upon the effectiveness of the registration statement
3.3* Form of Certificate of Amendment to the Third Amended and Restated Certificate of
Incorporation to be filed upon the closing of the offering
3.4* By-laws of the registrant
3.5* Form of Amended and Restated By-laws to take effect as of the effective date of
the registration statement
4.1* Specimen certificate representing the common stock
5.1* Opinion of Testa, Hurwitz & Thibeault, LLP
10.1* 1998 Stock Option Plan, as amended
10.2* 1999 Stock Option and Incentive Plan
10.3* 1999 Employee Stock Purchase Plan
10.4* Warrant Agreement by and among the registrant, Robert F. Young, Nancy R. Young,
Marc Ewing and Erik Troan, dated as of September 29, 1998, as amended
10.5* Warrant Agreement, by and among the registrant, Robert F. Young, Nancy R. Young,
Marc Ewing and Donald Barnes, dated as of September 29, 1998, as amended
10.6* Warrant Agreement by and among the registrant, Robert F. Young, Nancy R. Young,
Marc Ewing and Lisa Sullivan, dated as of September 29, 1998, as amended
10.7* First Amended and Restated Investor Rights Agreement by and among the registrant
and the Investors and Founders listed therein, dated as of February 25, 1999, as
amended
10.8* Office Lease by and between the registrant and CMD Properties, Inc., dated
November 13, 1998
10.9* Non-Qualified Stock Option Agreement by and between the registrant and Matthew
Szulik
10.10* Incentive Stock Option Agreement by and between the registrant and Matthew Szulik
10.11* Non-Qualified Stock Option Agreement by and between the registrant and Timothy
Buckley
10.12* Incentive Stock Option Agreement by and between the registrant and Timothy Buckley
10.13* GNU General Public License
10.14+ Distribution Agreement by and between the registrant and Ingram Micro Inc. dated
as of October 15, 1998, as amended
10.15+ Red Hat Product Distribution Agreement by and between the registrant and Frank
Kasper Associates, Inc., dated as of April 30, 1999
10.16+ Software Distribution Agreement between Tech Data Product Management, Inc. and the
registrant, dated as of April 29, 1999
10.17+* Agreement by and between the registrant and Building Number Three, Ltd., dated as
of June 10, 1998
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT INDEX
- --------- ----------------------------------------------------------------------------------
<C> <S>
10.18+* Independent Contractor Agreement by and between the registrant and Ingo Molnar,
dated as of August 18, 1998
10.19+ Software License and Shipment Agreement by and among the registrant, Dell Products
L.P. and Dell Computer Corporation, dated as of February 25, 1999
23.1* Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1* Power of Attorney
27.1* Financial Data Schedule
27.2* Financial Data Schedule
</TABLE>
- ------------------------
+ Confidential materials omitted and filed separately with the Securities and
Exchange Commission.
* Previously filed.
<PAGE>
Exhibit 10.14
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT ("Agreement"), is entered into this 15th day
of October, 1998, by and between INGRAM MICRO INC. ("Ingram"), a Delaware
corporation, having its principal place of business at 1600 E. St. Andrew Place,
Santa Ana, California 92705, and RED HAT SOFTWARE ("Vendor"), a DELAWARE
corporation, having, its principal place of business at 4201 RESEARCH COMMONS,
SUITE 100, RESEARCH TRIANGLE PARK, NORTH CAROLINA 27709. The parties desire to
and hereby do, enter into a distributor/supplier relationship, the governing
terms and mutual promises of which are set out in this Agreement.
1. DISTRIBUTION RIGHTS
1.1 TERRITORY. Vendor grants to Ingram, including its affiliates for
resale, and Ingram accepts, a [CONFIDENTIAL TREATMENT REQUESTED]** national
full line distributor exclusive or the retail Product and a [CONFIDENTIAL
TREATMENT REQUESTED]** national full line distributor exclusive for the
enterprise Product and a non-exclusive right thereafter. All computer
Products produced and/or offered by Vendor ("Product") during the term of
this Agreement shall be distributed worldwide. Ingram shall have the right to
purchase, sell and ship to any reseller within the territory or to Ingram's
affiliate, or at Vendor's option Ingram's affiliate may purchase direct from
Vendor.
1.2 PRODUCT Vendor agrees to make available and to sell to Ingram such
Product as Ingram shall order from Vendor at the prices and subject to the terms
set forth in this Agreement. Ingram shall not be required to purchase any
minimum amount or quantity of the Product.
2. TERM AND TERMINATION
2.1 TERM The initial term of this Agreement is one (1) year. Thereafter the
Agreement will automatically renew for successive one (1) year terms, unless it
is earlier terminated.
2.2 TERMINATION
(a) Either party may terminate this Agreement, with or without cause by
giving thirty (30) days written notice to the other party.
(b) Either party may immediately terminate this Agreement with written
notice if the other party.
(i) materially breaches any term of this Agreement and such
breach continues for thirty (30) business days after
written notification thereof; or
(ii) ceases to conduct business in the normal course, becomes
insolvent, makes a general assignment for the benefit of
creditors, suffers or permits the appointment of a
receiver for its business or assets, or avails itself of
or becomes subject to any proceeding, under any Bankruptcy
Act or any other federal or state statute relating to
insolvency or the protection of rights of creditors, or
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(iii) attempts to assign or otherwise transfer its rights
hereunder IN VIOLATION OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT.
3. INGRAM OBLIGATIONS
PRODUCT AVAILABILITY Ingram will list Product in its catalog(s) as
appropriate and endeavor to mark such Product available to customers.
3.2 ADVERTISING Ingram will advertise and/or promote Product in a
commercially reasonable manner and will transmit as reasonably necessary Product
information and promotional materials to its customers.
3.3 SUPPORT Ingram will make its facilities reasonably available for Vendor
and will assist in Product training and support. Ingram will provide reasonable,
general Product technical assistance to its customers, and will direct all other
technical issues directly to Vendor.
3.4 ADMINISTRATION
(a) Upon request, Ingram will furnish Vendor with a valid tax exemption
certificate.
(b) Ingram will provide Vendor standard sales-out and inventory reports
via its electronic Bulletin Board System. NON-STANDARD "SALES OUT" INFORMATION
SHALL BE PROVIDED BY INGRAM SUBJECT TO A SEPARATE POINT OF SALE REPORT LICENSE
AGREEMENT, A COPY OF WHICH IS ATTACHED HERETO AS EXHIBIT G.
(c) Ingram may handle its customers' Product returns by batching
them for return to Vendor at regular intervals.
4. VENDOR OBLIGATIONS
4.1 SHIPPING/EXPORT
(a) Vendor shall ship Product pursuant to Ingram purchase order(s)
("P.O."). Product shall be shipped F.O.B. Ingram's designated warehouse with
risk of loss or damage to pass to Ingram upon delivery to the warehouse
specified in Ingram's P.O.
(b) Ingram requires concurrent with the execution of this Agreement
Export Administration Regulations product classification and supporting
documentation: Certificate of Origin (General Use and/or NAFTA), Export
Commodity Control Number's; (ECCN's), General License and/or Individual
Validated License information and Schedule "B"/Harmonized Numbers. This applies
when distribution rights granted under Section 1.1 are outside the United States
for the initial Product/s and when additions or changes to these Products
occurs.
4.2 INVOICING For each Product shipment to Ingram, Vendor shall issue to
Ingram an invoice showing Ingram's order number, the Product part number,
description, price and any discount. At least monthly, Vendor shall provide
Ingram with a current statement of account,
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listing all invoices outstanding and any payments made and credits given since
the date of the previous statement.
4.3 PRODUCT AVAILABILITY Vendor agrees to USE COMMERCIALLY REASONABLE
EFFORTS TO maintain sufficient Product inventory to fill Ingram's orders. If a
shortage of any Product exists, Vendor agrees to allocate its available
inventory of such Product to Ingram in proportion to Ingram's percentage
of all of Vendor's customer orders for such product during the previous
[CONFIDENTIAL TREATMENT REQUESTED]**.
4.4 PRODUCT MARKING Vendor will clearly mark each unit of Product with
the Product name and computer compatibility. Such packaging will also bear a
machine-readable bar code identifier scannable in standard Uniform Product
Code (UPC) format. The bar code must identify the Product as specified by the
Uniform Code Council (UCC). The bar code shall fully comply with all
conditions regarding standard product labeling set forth in Exhibit B in the
then-current Ingram GUIDE TO BAR CODE: THE PRODUCT LABEL. Vendor may be
assessed a [CONFIDENTIAL TREATMENT REQUESTED]** charge for all Product not in
conformance herewith.
4.5 TECHNOTES Vendor will within thirty (30) days of execution of this
Agreement sign the CIS/ Manufacture Product Information Library - TechNotes and
Content Distribution Agreements as shown in Exhibit C and provide the required
product information in the designated template format.
4.6 SUPPORT [CONFIDENTIAL TREATMENT REQUESTED]** Vendor shall support
Product and any reasonable Ingram efforts to sell Product. Vendor shall also
provide to Ingram, its employees, and its customers reasonable amounts of
sales literature, advertising materials, and training and support in Product
sales WHEN REASONABLY REQUESTED BY INGRAM.
4.7 NEW PRODUCT Vendor shall endeavor to notify Ingram at least
[CONFIDENTIAL TREATMENT REQUESTED]** days before the date any new Product is
introduced. Vendor shall make such Product available for distribution by Ingram
no later than the date it is first offered for sale in the marketplace.
4.8 INSURANCE Vendor shall carry insurance coverage for product
liability/completed operations with minimum limits of [CONFIDENTIAL TREATMENT
REQUESTED]**. Within [CONFIDENTIAL TREATMENT REQUESTED]** days of full
execution of this Agreement, Vendor shall provide Ingram with a Certificate
of Insurance. This Certificate of Insurance must include: (i) a broad form
endorsement naming Ingram as an additional insured, and (ii) a mandatory
thirty (30) day notice to Ingram of insurance cancellation.
4.9 WARRANTIES/CERTIFICATION
(a) GENERAL WARRANTY Vendor represents and warrants that (i) it has
good transferrable title to the Products, (ii) the Product will substantially
perform in conformity with specifications and documentation supplied by
Vendor, (iii) to the best of Vendor's knowledge, the Product or its use does
not infringe any patents, copyrights, trademarks, trade secrets, or any other
intellectual property rights, (iv) to the best of Vendor's knowledge, that
there are no suits or proceedings pending or threatened which allege any
infringement of such proprietary rights, and (v) to the best of Vendor's
knowledge, the Product sales to Ingram do not in any way constitute
violations of any law, ordinance, rule or regulation in the distribution
territory.
(b) WARRANTY Vendor hereby represents and warrants that to the best
of Vendor's knowledge, any Product offered for distribution does not contain
any obscene, defamatory or libelous matter or violate any right of publicity
or privacy
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(c) END-USER WARRANTY Vendor shall provide a warranty statement with
Product for end user benefit. This warranty shall commence upon Product delivery
to end-user.
(d) MILLENNIUM COMPLIANCE WARRANTY INTENTIONALLY DELETED.
(e) EU WARRANTY Vendor further warrants TO THE
BEST OF VENDOR'S KNOWLEDGE, and represents for Products distributed to the
European Union ("EU") that the Products will be accepted under all EU
directives, regulations and EU country's legislation.
(f) MADE IN AMERICA CERTIFICATION Vendor by the execution of this
Agreement certifies that it will not label any of its products as being "Made in
America," "Made in U.S.A.," or with similar wording unless all components or
elements of such Product is in fact made in the United States of America. Vendor
further agrees to defend, indemnify and hold harmless from and against any and
all claims, demands, liabilities, penalties, damages, judgments or expenses
(including attorney's fees and court costs) arising out of or resulting in any
way from Product that does not conform to the Certification.
5. PRICING
5.1 INGRAM PRICING The suggested retail price and any Ingram discount for
Product is set out in Exhibit D. Vendor may modify Exhibit D with a minimum of
[CONFIDENTIAL TREATMENT REQUESTED]** advance written notice to Ingram. All
Ingram orders for Product will be billed at the price in effect when the order
is placed. Ingram shall have sole discretion as to selling price of Product to
its customers.
5.2 VENDOR PRICING [CONFIDENTIAL TREATMENT REQUESTED]**.
5.3 INTERNATIONAL PRICING [CONFIDENTIAL TREATMENT REQUESTED]**.
5.4 PRICE ADJUSTMENTS If Vendor reduces any Product price, or offers
increased discounts to any customers, Vendor will promptly credit Ingram the
difference between the original Product price and the reduced Product price
for Ingram's and its customers' Product inventory, including: (i) any
Customer Product in-transit from/to Ingram, (ii) any unshipped orders, and
(iii) orders in-transit to Ingram on the price reduction or increased
discount offer date. In the event that Vendor shall raise the list price of a
Product, all orders for such Product placed prior to the effective date of
the price increase shall be invoiced at the lower price. Vendor shall provide
Ingram with [CONFIDENTIAL TREATMENT REQUESTED]** advance notice of any price
increases. Pass thru price protection to Ingram's customers will
automatically occur and the Vendor will be debited as early as
[CONFIDENTIAL TREATMENT REQUESTED]** after the effective date of the price
reduction for Ingram's customers inventory unless Ingram is notified
otherwise prior to the price change.
5.5 PAYMENT TERMS Ingram's payment terms shall be [CONFIDENTIAL TREATMENT
REQUESTED]**. Payment shall be deemed made on the payment postmark date.
5.6 RIGHT TO WITHHOLD Notwithstanding any other provision in this
Agreement to the contrary, Ingram shall not be deemed in default if it
withholds any specific amount pending the timely resolution of the disputed
amount and pays all outstanding undisputed amounts owed.
6. MARKETING
6.1 TRADEMARKS Ingram may advertise and promote the Product and/or Vendor,
and may thereby use VENDOR'S trademarks, service marks and trade names. INGRAM'S
USE OF VENDOR'S TRADEMARKS, SERVICE MARKS AND TRADE NAMES SHALL BE PERFORMED IN
ACCORDANCE WITH THE REASONABLE USE GUIDELINES OF VENDOR, A COPY OF WHICH WILL BE
PROVIDED HERETO AS EXHIBIT F. Neither party shall acquire any rights in the
trademarks, service marks or trade names of the other.
6.2 ADVERTISING Vendor agrees to cooperate in Ingram's or Ingram's
customers' and promotion of Product and hereby grants Ingram a cooperative
advertising allowance of [CONFIDENTIAL
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TREATMENT REQUESTED]** of Product invoice amount for such advertising featuring
Product and/or Vendor. Ingram shall submit advertising to Vendor for review and
approval prior to any initial release, and Vendor shall not unreasonably
withhold or delay such approval. Upon receipt of reasonable evidence of such
advertising expenditures, Vendor agrees to credit the amount thereof against
future Ingram purchases.
6.3 PROGRAMS
(a) Ingram may offer marketing programs to Vendor including but not
limited to launch programs and reseller pass through opportunities. If Vendor
elects to participate, Vendor agrees to pay such funds as may be required for
this purpose.
(b) Vendor may be asked or prepay all marketing activities
until a mutually agrees upon sell through rate is achieved.
6.4 SUPPORT PRODUCT Vendor shall consign a reasonable amount of
demonstration Product to aid Ingram in its support and promotion of Product.
All such consigned Product will be returned to Vendor upon request.
7. RETURNS
7.1 STOCK BALANCING Notwithstanding anything herein to the contrary,
Ingram may return throughout the term any Products PURCHASED WITHIN
[CONFIDENTIAL TREATMENT REQUESTED]** OF SALE which are in their original
packaging to Vendor for full credit of the Products' purchase price. Vendor
will consider in good faith on a case by case basis any Product return
requests after this period. In the event that a Return Material Authorization
(RMA) for the return of Product is not issued within [CONFIDENTIAL TREATMENT
REQUESTED]** of the request, Ingram shall have the right to return any
Product(s) to Vendor without an RMA, and Vendor shall be obligated to accept
such return for credit. [CONFIDENTIAL TREATMENT REQUESTED]** will pay all
reasonable ground freight charges for returned Products.
7.2 POST-TERM/TERMINATION For [CONFIDENTIAL TREATMENT REQUESTED]** days
after the expiration or earlier termination of this Agreement, Ingram may
return to Vendor any Product for credit against outstanding invoices, or if
there are no outstanding invoices for a cash refund. Any credit or refund due
Ingram for returned Product shall be equal to [CONFIDENTIAL TREATMENT
REQUESTED]**.
7.3 PRODUCT DISCONTINUATION Vendor shall give Ingram [CONFIDENTIAL
TREATMENT REQUESTED]** days advance written notice of Product
discontinuation. Ingram may return all such Product to Vendor for full credit
of Product purchase price [CONFIDENTIAL TREATMENT REQUESTED]**.
7.4 DEFECTIVE PRODUCT
(a) Ingram may return any Product to Vendor that Ingram or its customer
finds defective. Vendor shall immediately credit Ingram for the Product
purchase price, [CONFIDENTIAL TREATMENT REQUESTED]**.
(b) If any Product is recalled by Vendor because of defects, revisions
or upgrades, Ingram will, at Vendor's request, provide reasonable assistance
with the recall. Vendor will pay Ingram's REASONABLE expenses in connection with
such recall.
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8. INDEMNIFICATION
8.1 PRODUCT INDEMNITY Vendor shall defend, indemnify, and hold harmless
Ingram from and against any claims, demands, liabilities or expenses
(including attorney's fees and costs) for any injury or damage, including,
but not limited to, any personal or bodily injury or property damage, arising
out of or resulting in any way from any defect in Products. This duty to
indemnify Ingram shall be in addition to the warranty obligations of Vendor.
Provided that Ingram gives Vendor prompt notice of each such claim, demand,
suit, or other action, and that Vendor shall have sole control of the defense
and resolution of such a claim and Ingram's reasonable cooperation in its
defense.
8.2 GENERAL INDEMNITY Each party shall indemnify, defend and hold the
other harmless from and against any and all claims, actions, damages,
demands, liabilities, costs and expenses, including reasonable attorney's
fees and expenses, resulting from any act or omission of the acting party or
its employees under this Agreement, that causes or results in property
damage, personal injury or death. Provided that Ingram gives Vendor prompt
notice of each claim, demand, suit, or other action, and that Vendor shall
have sole control of the defense and resolution of such a claim and Ingram's
reasonable cooperation in its defense.
8.3 INTELLECTUAL PROPERTY RIGHTS INDEMNITY Vendor shall defend,
indemnify and hold Ingram, its resellers and their customers, harmless from
and against all damages and costs incurred by any of them arising from the
infringement of any patent, copyright, trademark, trade secret or other
proprietary right by reason of the manufacture, sale, marketing or use of
Product. Provided that Ingram gives Vendor prompt notice of each claim,
demand, suit, or other action, and that Vendor shall have sole control of the
defense and resolution of such a claim and Ingram's reasonable cooperation in
its defense.
8.4 PRODUCT INFRINGEMENT Upon threat of claim of infringement, Vendor
may, at its expense and option (i) procure the right to continue using any
part of Product, (ii) replace the infringing Product with a non-infringing
Product of similar performance, or (iii) modify Product to make it
non-infringing. If Vendor does not so act within ninety (90) days after such
claim, Ingram may return Product to Vendor for a full credit against future
purchases or for a cash refund, at Ingram's option.
8.5 MULTI-MEDIA INDEMNITY Vendor shall defend, indemnify and hold
Ingram, its resellers and their customers, harmless from and against all
damages and costs incurred by any of them to the extent it is based upon a
claim that the product either (i) violates a third party's right of publicity
and/or right of privacy, or (ii) contains any obscene, defamatory or libelous
manner. Provided that Ingram gives Vendor prompt notice of each claim,
demand, suit, or other action, and that Vendor shall have sole control of the
defense and resolution of such a claim and Ingram's reasonable cooperation in
its defense.
8.6 EUROPEAN INDEMNITY For Products distributed to a country in the EU,
the Vendor accepts full responsibility for, and will indemnify Ingram for,
all costs and damages arising from any non-compliance with any
manufacturer-directed EU decree, regulation or directive. Provided that
Ingram gives Vendor prompt notice of each claim, demand, suit, or other
action, and that Vendor shall have sole control of the defense and resolution
of such a claim and Ingram's reasonable cooperation in its defense.
8.7 MILLENNIUM COMPLIANCE INDEMNITY Vendor agrees to indemnify and hold
Ingram and its shareholders, officers, directors, employees, agents,
successors, and assigns harmless from and against any and all claims, suits,
actions, liabilities, losses, costs, reasonable attorney's fees, expenses,
judgments or damages, whether ordinary, special or consequential, resulting
from any third party claim made or suit brought against Ingram or such
persons to the extent such results from Vendor's Product millennium
non-compliance. Millenium non-compliance is defined to be a Vendor Product
failure to properly (a) record, store, process, calculate or present calendar
dates falling on and after (and if applicable, spans of time including)
January 1, 2000 as a result of the occurrence, or use of data consisting of,
such dates and (b) calculate any information dependent on or relating to
dates on or after January 1, 2000 in the same manner, and with the same
functionality, data integrity and performance, as such Product records,
stores, processes, calculates and presents calendar dates on or before
December 31, 1999, or information dependent on or relating to such dates.
Ingram agrees as a condition of the indemnity to provide Vendor prompt notice
of each claim, demand, suit, or other action, and that Vendor shall have sole
control of the defense and resolution of such a claim and Ingram's reasonable
cooperation in its defense.
8.8 LIMITATION OF LIABILITY NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR
LOST PROFITS OF BUSINESS, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER
BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE),
AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THIS LIMITATION IS IN NO WAY MEANT TO LIMIT VENDORS LIABILITY FOR PERSONAL
INJURY OR DEATH AS A RESULT OF A DEFECT IN ANY PRODUCT IN THOSE JURISDICTIONS
WHERE THE LAW DOES NOT ALLOW THIS LIMITATION.
9. COMPLIANCE WITH FEDERAL LAWS AND REGULATIONS
9.1 Vendor shall comply with all State, Federal and Local laws, rules and
regulations
10. GOVERNMENT PROGRAM
10.1 PARTNERSHIP AMERICA Vendor may, at its sole option, participate in
Ingram's government reseller program in which case the provisions of Exhibit E,
Partnership America, shall apply. A draft copy is provided solely for your
information and review.
11. GENERAL PROVISIONS
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11.1 NOTICES Any notice which either party may desire to give the other
party must be in writing and may be given by (i) personal delivery to an officer
of the party, (ii) by mailing the same by registered or certified mail, return
receipt requested, OR BY NATIONALLY RECOGNIZED EXPRESS COURIER service to the
party to whom the party is directed at the address of such party as set forth at
the beginning of this Agreement, or such other address as the parties may
hereinafter designate, and (iii) by facsimile or telex communication
subsequently to be confirmed in writing, pursuant to item (ii) herein.
11.2 GOVERNING LAW This Agreement shall be construed and enforced in
accordance with the laws of the State of [CONFIDENTIAL TREATMENT REQUESTED]**,
except that body of law concerning conflicts of law. The United Nations
Convention on Contracts for the International Sale of Goods shall not apply to
this Agreement.
11.3 COOPERATION Each party agrees to execute and deliver such further
documents and to cooperate as may be necessary to implement and give effect to
the provisions contained herein.
11.4 FORCE MAJEURE Neither party shall be liable to the other for any delay
or failure to perform which results from causes outside its reasonable control.
11.5 ATTORNEYS FEES In the event there is any dispute concerning the terms
of this Agreement or the performance of any party hereto pursuant to the terms
of this Agreement, and any party hereto retains counsel for the purpose of
enforcing any of the provisions of this Agreement or asserting the terms of this
Agreement in defense of any suit filed a-against said party, each party shall be
solely responsible for its own costs and attorney's fees incurred in connection
with the dispute irrespective of whether or not a lawsuit is actually commenced
or prosecuted to conclusion.
11.6 EXPORT REGULATIONS Ingram agrees by the purchase of Products to conform
to, and abide by, the export laws and regulations of the United States,
including but not limited to, the Export Administration Act of 1979 as amended
and its implementing regulations. Ingram shall include a statement in it's
standard sales terms and conditions that any shipment of Product outside the
United States will require a valid export license. Ingram further agrees to
distribute Product in accordance with the territory as defined in Section1.1.
Whenever a EU country is specified as Territory under Section 1. 1, Territory
shall include all EU countries.
12. AGREEMENT
12.1 COUNTERPARTS This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12.2 SECTION HEADINGS Section headings in this Agreement are for convenience
only, and shall not be used in construing the Agreement.
12.3 INCORPORATION OF ALL EXHIBITS Each and every exhibit referred to
hereinabove and attached -hereto is hereby incorporated herein by reference as
if set forth herein in full.
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12.4 SEVERABILITY A judicial determination that any provision of this
Agreement is invalid in whole or in part shall not affect the enforceability of
those provisions found to be valid.
12.5 NO IMPLIED WAIVERS If either party fails to require performance of any
duty hereunder by the other party, such failure shall not affect its right
to-require performance of that or any other duty thereafter. The waiver by
either party of a breach of any provision of this Agreement shall not be a
waiver of the provision itself or a waiver of any breach thereafter, or a waiver
of any other provision herein.
12.6 BINDING EFFECT/ASSIGNMENT This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto, and their respective
representatives, successors and permitted assigns. This Agreement shall not be
assignable by Vendor, without the express written consent of Ingram, which
consent shall not be unreasonably withheld, including to a Person in which it
has merged or which has otherwise succeeded to all or substantially all of such
party's business and assets to which this Agreement pertains and which has
assumed in writing or by operation of law its obligations under this Agreement.
Any attempted assignment in violation of this provision will be void.
NOTWITHSTANDING THE OTHER PROVISIONS OF THIS SECTION, IN THE EVENT THAT EITHER
PARTY IS MERGED WITH OR CONSOLIDATED INTO ANY OTHER ENTITY, OR IN THE EVENT THAT
SUBSTANTIALLY ALL OF THE ASSETS OF EITHER PARTY ARE SOLD OR OTHERWISE
TRANSFERRED TO ANY OTHER ENTITY, THE PROVISIONS OF THIS AGREEMENT WILL BE
BINDING UPON, AND INURE TO THE BENEFIT OF, SUCH OTHER ENTITY.
12.7 SURVIVAL Sections 5.5 (Payment Terms), 5.6 (Right to Withhold), 7.2
(Post-Term Termination) and 8. (Indemnification) shall survive the expiration
or earlier termination of this Agreement.
12.8 ENTIRETY This Agreement constitutes the entire agreement between the
parties regarding its subject matter. This Agreement supersedes any and all
previous proposals, representations or statements, oral or written. Any previous
agreements between the parties pertaining to the subject matter of this
Agreement are expressly terminated. The terms and conditions of each party's
purchase orders, invoices, acknowledgments/confirmations or similar documents
shall not apply to any order under this Agreement, and any such terms and
conditions on any such document are objected to without need of further notice
or objection. Any modifications to this Agreement must be in writing and signed
by authorized representatives of both parties.
12.9 AUTHORIZED REPRESENTATIVES Either party's authorized representative for
execution of this Agreement or any amendment hereto shall be president, a
partner, or a duly authorized vice president of their respective party. The
parties executing this Agreement warrant that they have the requisite authority
to do so.
IN WITNESS WHEREOF, the parties hereunto have executed this
Agreement.
"Ingram" "Vendor"
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Ingram Micro Inc. Red Hat Software
1600 E. St. Andrew Place 4201 Research Commons, Suite 100
Santa Ana, California 92705 Research Triangle Park, North Carolina 27709
By: /s/ Michael Terrell By: /s/ Paul Mcnamara
---------------------------- ---------------------------------------
Name: Michael Terrell Name: Paul Mcnamara
---------------------------- ---------------------------------------
Title: Vice President Purchasing Title: Vice President
---------------------------- ---------------------------------------
Date: November 11, 1998 Date: November 5, 1998
---------------------------- ---------------------------------------
*AGREEMENT MUST BE SIGNED BY PRESIDENT OR BY A DULY AUTHORIZED VICE PRESIDENT OR
PARTNER.
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EXHIBITS:
A - Vendor Routing Guide (if applicable)
B - Guide to Bar Code: The Product Label
C - TechNotes
D - Product Price List
E - Partnership America
F - Vendor Trademark Guidelines
G - Point of Sale Report License Agreement
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MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
EXHIBIT A
VENDOR ROUTING GUIDE
Not Applicable
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Attached
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RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
EXHIBIT B
INGRAM MICRO'S GUIDE TO BAR CODES:
THE PRODUCT LABEL
CONTENTS:
Statement of Bar Code Policy............... 1
Where Bar Codes Are Listed................. 2
Product Label Specifications............... 3
Case Pack Label Specifications............. 4
Shipping Label Specifications.............. 5
How to Get the Codes You Need.............. 6
List of Bar Code Contacts.................. 7
List of Top Bar Coding Vendors............. 8
Bar Code Checklist......................... 10
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
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RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
STATEMENT OF BAR CODE POLICY
Increasingly, computer companies are taking cue from the retail and distribution
community and implementing bar code programs, thus realizing the benefits of
improved productivity, better control over inventory and ease of product and
information exchange with their trading partners. The most important reason for
this trend is the growth of sales within consumer marketing channels. Another
reason is that more and more resellers are investing in inventory and
point-of-sale systems which utilize bar-coded information. As a result of these
trends, bar coding concerns have become much more prevalent within the computer
industry.
With over ten years of experience, most resellers who use bar codes have adopted
the Universal Product Code (UPC) as their standard data format. As a supplier to
several of these resellers, Ingram Micro is increasingly called upon to provide
UPCs on all products sold through these channels. But as a distributor, Ingram
Micro cannot assign UPCs to products; that task can only be performed by the
original manufacturer. Due to the sporadic use of UPCs within the microcomputer
industry, however, Ingram Micro is often required to invent codes and create
labels for products sold to these resellers.
These requirements have led Ingram Micro to adopt UPC as its coding standard.
This standard dictates that a unique code be assigned for each product and for
every version of that product. Non-unique codes for different product versions
create havoc among consumer market resellers, many of whom have little
experience with computer products. With a correct UPC, inventory can be handled
efficiently within Ingram Micro's warehouses as well as those of our reseller
partners.
On these pages, you will find the Ingram Micro bar code requirements which
reflect the needs of our customers. Additionally, we have provided lists and
explanations to help with your own bar code programs, as well as information for
working with the Uniform Code Council, the agency responsible for UPC bar codes.
At the end of this document, please find the Bar Code Checklist for use in
informing Ingram Micro of your company's bar coding efforts. All Ingram Micro
requirements conform with ABCD guidelines.
PLEASE NOTE SOME RECENT ADDITIONS TO OUR BAR CODE POLICY. First, we have
experienced a growing demand from our customers to capture serial number
information on products we ship to them. This information is mandatory in order
for our customers to apply for rebates, warranties, upgrades, marketing funds
and support from the manufacturer. Accurate serial number capture is, therefore,
imperative. IF SERIAL NUMBERS ARE CARRIED ON YOUR PRODUCTS, WE REQUIRE THIS
INFORMATION TO BE BAR CODED IN CODE 39 FORMAT WITH THE (S) DATA IDENTIFIER
PRESENT IN BOTH THE HUMAN-READABLE TEXT AND MACHINE READABLE BAR CODE. With this
consistent, uniform format, we can capture serial numbers quickly and accurately
while increasing customer satisfaction.
Second, we have included guidelines on CASE PACK AND SHIPPING LABEL
SPECIFICATIONS. These guidelines are designed to reduce receiving and potential
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
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RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
shipping errors to customers. Again, a consistent, uniform format helps us
capture this important information about your product accurately and without
delay.
We appreciate your investment of time and energy in implementing these bar code
programs. Through our joint efforts and consistent bar code labeling, Ingram
Micro and our vendor partners will be able to increase customer satisfaction,
improve inventory control and reduce the cost of sales through microcomputer
channels. Ingram Micro stands ready to assist with your bar code program. Please
use the Bar Code Contact List when bar code questions arise.
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
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RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
[Figure entitled "Where Bar Codes Are Used", Part I]
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**[CONFIDENTIAL TREATMENT REQUESTED] Indicates material that has been omitted
and for which confidential treatment has been requested. All such omitted
material has been filed with the Securities and Exchange Commission pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
<PAGE>
[Figure entitled "Where Bar Codes Are Used", Part II]
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RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
PRODUCT LABEL SPECIFICATION
[Figure]
- Each unit of a product that will be resold by Ingram Micro must display
a product label in UPC or EAN (International Article Numbering) format,
although EAN may not be recognized by all of Ingram Micro's customers.
- Ingram Micro is not concerned with the specific layout of the product
label, as long as the necessary information is included in a legible
format. A serial number may be printed on a separate label as long as it is
placed legibly on the exterior of the product package.
- Serial numbers must be printed in Code 39(S) format: (1) if Ingram Micro's
customer is required to record serial numbers of your product prior to
shipping or,(2) if Ingram Micro's customer is required to confirm serial
numbers as a pre-condition of returning defective product or,(3) if Ingram
Micro or its customers are required to provide serial number information
for inventory reporting purposes. Serial numbers are optional if Ingram
Micro reports no serial number data to your company.
- Bar code labels should include human-readable text in addition to the bar
code itself. The nominal UPC symbol size is 1.469 inches wide by 1.020
inches high (including the human-readable characters). Size may vary from
.8 to 2.0 times the nominal dimensions in accordance with UCC guidelines.
Code 39 symbols should have a minimum bar code height of .5 inches and a
minimum height for human-readable text of .125 inches. For product that is
SHRINK WRAPPED, THE LABEL IS BEST PLACED ON THE TOP OR BOTTOM NEAR THE
EDGE. Use caution, avoid the middle section. Shrink wrap seams obstruct the
scanner's ability to read the bar code.
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
Case Pack Label Specifications
The UPC Shipping Container Symbol
[Figure]
WHERE:
Pos. #1: Packaging Indicator
(5)
Pos. #2-3: Number System
(00)
Pos. #4-8: Mfg. ID No.
(66321)
Pos. #9-13: Item or Product
Number (12345)
Pos. #14: Modulo 10
Check Digit (8)
[Figure]
The case pack label must identify the specific case pack quantity through the
use of the UPC SHIPPING CONTAINER CODE. This code assigns a unique identity to
each shipping container, intermediate package and standard pallet. Similar to
the UPC, it employs the use of a packaging indicator along with the item number
in order to get its uniqueness. The packaging indicator can be any digit from 0
through 7, as assigned by the manufacturer. The following are guidelines
manufacturers should use when assigning packaging indicators.
PACKAGING INDICATOR FOR USE WHEN
0 the item numbers are unique, or when
the product must retain its UPC Ver.
A bar code and a UPC shipping
container symbol on the same carton
(i.e., products whose shipping
container also acts as the consumer
package).
identifying different levels of
1-7 packaging (i.e., inner sleeve, inner
carton or standard pallet) with the
same item number.
In the U.S., our number system character always begins with zero (0). The
manufacturer I.D. number is the same as assigned in the UPC number. The item
number is the same as assigned by the manufacturer in the UPC number. The check
digit is modulo 10, calculated from left to right, starting with the packaging
indicator.
Each unique serial number of product within the case pack must be printed in
Code 39 format with the (S) data identifier in human-readable text and encoded
within the bar code symbol. The symbols must be a minimum of .5 inches in height
and the human-readable text must be a minimum of .125 inches in height.
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
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RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
[Figure]
The guidelines for our shipping label have been adopted from the ANSI MH10.8M
shipping label standard. Upon receipt of your shipment, it enables us to locate
and scan important information quickly.
The first two segments identify where the product shipped from and which Ingram
warehouse will receive the product. The purchase order, in both human readable
text and bar code format, must employ the use of the FACT data identifier (K).
The fourth segment contains the invoice number in both human-readable text and
bar code format. The invoice number must be printed in Code 39 symbology and
utilize the FACT data identifier (10K) in both the text and bar code symbol. By
bar coding the purchase order and invoice number, Ingram Micro's accounting
department will be able to quickly match your invoice to the Ingram Micro
purchase order to ensure prompt payment. The last segment contains the
serialized shipping container code in both human-readable and bar code format.
Ingram Micro uses the information contained in this code to tie together the
physical contents of the carton to the shipment information given to us by a
supplier via Electronic Data Interchange (E.D.I.). The serialized shipping
container code is printed in UCC/EAN-128 bar code symbology. It employs the use
of application identifiers, which serve the same purpose as data identifiers,
only in numeric form. It gets its uniqueness by coupling the seven digit UCC/EAN
manufacturer number with a nine digit shipping container number assigned by the
supplier. This bar code is only required if you provide EDI advanced ship
notification.
THE SHIPPING LABEL
Ingram Micro
Purchase Order:
10-12345
Ingram Micro Sequential
Location P.O. Number
Br. 10 1600 E. St. Andrew
Santa Ana, CA 92075
Br. 17 8530 NW 23rd St.
Bldg. #18
Miami, FL 33122
Br. 20 1443 Wainwright
#155
Carrollton, TX 75007
Br. 25 1600 E. St. Andrew
Santa Ana, CA 92705
Br. 30 3500 Air Center Dr.
Memphis Int'l
Airport
Memphis, TN 38118
Br.40 151 Hastings Drive
Buffalo Grove, IL 60089
Br. 50 41490 Boyce Rd.
#A
Fremont, CA 94538
Br. 52 48949 Warm Springs
Fremont, CA 94538
Br. 70 696 Park N. Blvd.
#150
Clarkston, GA 30021
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
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RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
Br. 80 5455 Allentown
Harrisburg, PA 17112
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
HOW TO GET THE CODES YOU NEED
WORKING WITH THE UNIFORM CODE COUNCIL The Uniform Code Council is a
not-for-profit membership corporation created in 1972 to administer the
Universal Product Code (UPC). Although membership in the Uniform Council Code is
voluntary, it is required in order to obtain the manufacturer's number
assignment necessary for a UPC. The fee for membership is based on the latest
annual U.S. domestic sales volume of the applying company and ranges from $300,
for start-up companies and those under $2 million in annual sales, to $10,000 if
you have over $500 million in sales. This sales figure should include all
products, not just the products which are chosen for coding at the time of
application.
Some manufacturers have previously applied for membership with the Uniform Code
Council, but for a Uniform Industrial Code (UIC) rather than a UPC. Within the
past few years these two program have merged, and both now operate under the
auspices of Uniform Code Council. Manufacturer's numbers assigned under the UIC
program are now applicable for UPCs as well.
Contact the Uniform Code Council at 8163 Old Yankee Rd., Ste. J, Dayton, OH
45458 or call (513) 435-3870. After receipt of your application, the Uniform
Code Council will assign a UPC manufacturer's number unique to your company.
This six-digit number will be for use on all of your products.
ASSIGNING UPC ITEM CODES
Each manufacturer, according to their own internal numbering system, assigns
a five-digit item number to each product. In combination with the six-digits
manufacturer number, this will form the 11-digit UPC number for each product.
A calculated check-digit in the twelfth position completes the UPC code.
Currently used part numbering systems cannot always be represented, as assigning
any degree of internal intelligence of significance to the positions of the
digits ramatically reduces possible permutations and flexibility. UPCs created
from each manufacturer's number are limited to 100,000 (00000 through 99999).
If, for example, a company produces systems, components and software products,
and begins each group's with "1," "2," and "3" respectively, then the 100,000
possible number are suddenly reduced to 30,000. Manufacturers who feel uneasy
about starting their numbering system with 00001 may choose another starting
point, such as 25000. Item numbers, then, should be chosen either sequentially
or randomly without duplication. The best place to start is usually the product
with the highest unit volume.
A different number must be assigned for each product as well different versions
of each product, including different disk sizes or media. Additionally, a
separate code should be created for education or international versions,
promotional packages and specially priced or bundled items. The general rule is
to follow is that a separate number should be created when a product is
physically or functionally different from previous products, the product is
handled differently in the channel, different package graphics dimensions make
the product appear different from earlier versions, or the retail price changes
from one configuration to another. Minor changes that are transparent to the
user, e.g., not identified on the package or in promotional media, should not
have a new UPC assigned as this will cause the item to be treated as a different
product. Many retailers rely on unique UPCs to differentiate between product
versions, media, etc.
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
BAR CODE CONTACT LIST
INGRAM MICRO
ANGELA COULON, OPERATIONS ADMINISTRATOR (714) 566-1000 EXT. 2213
Contact Angela with any questions concerning bar codes, CTIA (formerly ABCD)
standards and other policies outlined in this guide.
Ingram Micro Corporate Operations Fax Number (714) 566-7800
YOUR BUYER (714) 566-1000
Continue to contact your buyer with questions and information concerning product
changes, new products, packaging changes (including dimensions and weight),
package quantity changes and version changes.
OTHER CONTACT:
Bob Furtado, Sr. Vice President of Operations (714) 566-1000 ext. 2215
COMPTIA
The Microcomputer Industry Assoc.
450 E. 22nd Street
Ste. 230
Lombard, IL 60148
(708) 268-1818
UNIFORM CODE COUNCIL
8163 Old Yankee Rd.
Uniform Code Council Ste. J
Dayton, OH 45458
(513) 435-3870
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
LIST OF TOP BAR CODING VENDORS
CONGRATULATIONS TO THESE COMPANIES LEADING THE
WAY IN PRODUCT BAR CODES!
The number of products Ingram Micro has received with UPCs has increased
dramatically since 1992. We acknowledge the efforts of our vendors who have
adopted the UPC as their bar coding standard.
[Figure]
CONGRATULATIONS TO THESE COMPANIES LEADING THE WAY IN PRODUCT BAR CODES!
3M Data Storage Products Crystal Graphics IBM Software
7th Level Curtis Manufacturing IMC Networks
Access Software CTX IMSI Software Publishing
Acculogic D-Link Individual Software
ACI US Daceasy Inse: Systems
Activision Dantz Software Insignia Solutions
Adaptive Software Datadesk International Intel
Adobe Systems Datastorm Intellicom
Aitech Datatech Intellimedia Sports
Alpha Software Dataviz Interex
Amdek David Systems, Inc. Interplay
Amjet Dayna Communications, Inc. Intersolv
Antec Daystar Digital Iomega Corp.
Apple Computer Software DCA (Crosstalk Commun.) Jetform Corp.
Appoint Delrina Technology Kensington Microware
Asante Delta Point Key Tronic
Asymetrix Deneba Kingston Technology
ATI Tech Diamond Multimedia, inc. Kodak
Autodesk retail Digi International Labetc
Avantos Digital Systems Research Landmark research
Aztech Labs, Inc. Discis Knowledge Research Lantronix
Banner Blue DK Multimedia Laser Go
Belkin Components DPT Lexmark
Berkeley Systems DSP Technology Lind Electronic Design
Broderbund Edmark Logitech
Brother EFI (Electronics for Lotus
Imaging)
Campbell Services, Inc. Electronic Arts Macromedia
Canon (Still Video Emerald systems Madge Networks
Division)
Canon Computer Epson Magnavox
CD Technology Exide Electronics Mananita Software
CE Software Expert Software Mass Micro
Central Point Farallon Maxa
International
Century Software Fauve Software Maxis
Cheyenne Software Focus Enhancement McAfee
Chinon America, Inc. Foresight Resources MECC
Chipsoft Frame Technology Medio Multimedia
Cirque Corp. Frye Computer Systems Megahertz
Citizen America Corp. Funk Software Memorex
Claris Future Domain Microsoft
Cliff's Notes Future Soft Engineering Microtek
CNET, Inc. Future Vision Multimedia Microtest
Compaq Computer GCC Technologies Midisoft
Compton's New Media Globalink Milan
Computer Associates Gold Disk Mindscape
Comtrol Grolier Mitac
Concentric Data Systems Hayes Mitsubishi (Peripherals)
Conner Storage Hewlett Packard Mountain Network Sol.
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
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RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
Corel Hi-Tech Musicware
Costar Hitachi (Home Electronics) Mysoftware
Creative Labs HSC Software National Advantages
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
LIST OF TOP BAR CODING VENDORS
CONGRATULATIONS TO THESE COMPANIES LEADING THE WAY IN PRODUCT BAR CODES!
Nebs Software, Inc. Toshiba America Info
Networth Touchstone S/W Corp.
New Media Trio Information Systems
Newer Technology Tripp Lite
Newgen System Turtle Beach Systems
Norton-Lambert Tut Systems
Orchid Technology Ulead Systems
Novell/Wordperfect Umax
Palindrome Corp. Velocity
Panamax Ventana Media
Panasonic - CPD Verbatim Corp.
Paradise Villa Crespo
Paramount Interactive Visioneer
Passport Wacom
Perfect Data Wangtek/Wangdat
Persoft Wearnes Technology
Phoenix Technologies White Pine Software
Photonics Wizard Works
Plextor Wizard Works
PLI Xaos Tools
Polaroid Z-Ram (Camintonn Corp.)
Practical Peripherals Zoom Telephonics
Primax Electronic, Inc. Zyxel
Proxima
Psygnosis
Q-Logic
Quark
Quarterdeck Office Systems
Radius
Rand McNally
Rubbermaid Office Products
Saber Software
Samsung Information
Systems
Samtron Displays, Inc.
Shapeware
Shiva Corp.
Sierra On-Line
Sigma Designs
SL Waber
Smith Micro Software
Softkey Academic
Software Publishing Corp.
Software Venture
Solectek Corp.
Sonic Systems
Specular International
Spry
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
Stac Electronics
Supra Corp.
Swfte
Symantec
Syquest International
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
BAR CODE CHECKLIST
PLEASE DETACH AND MAIL THIS COMPLETED CHECKLIST TO THE ADDRESS ON THE BACK, OR
FAX TO (714) 566-7800. FOR FURTHER ASSISTANCE, CONTACT ANGELA COULON AT (714)
566-1000 EXT. 2213.
1. Who should Ingram Micro contact regarding bar codes on your products?
Company Name:
-----------------------------------------
Contact Name:
-----------------------------------------
Phone Number and Extension:
---------------------------
Fax Number:
-------------------------------------------
Your Address:
-----------------------------------------
2. Does your company utilize UPC bar codes to identify your product?
(Circle one.)
a. Currently utilize c. Undecided
b. Plan to utilize d. Do not plan to utilize
3. Please indicate the percentage of your PRODUCT PACKAGES which display
the following bar code formats:
UPC EAN
-------------------------------------- ------------------------
Product Serial No. (Code 39 with "S" Data Identifier)
-----------------
Part Number (Code 39 with "IP" Data Identifier)
-----------------------
Supplier Identification (Code 39 with "2V" Data Identifier
------------
Case Code:
------------------------------------------------------------
Other:
----------------------------------------------------------------
4. If you are not utilizing UPC bar codes, when do you plan for all of
your product to display UP?
a. Currently d. Within 2 years
b. Within 6 months e. Within 5 years
c. Within 1 years
5. Will your current or planned systems be required to capture and track
product serial numbers?
a. Yes c. Undetermined
b. Planned for future d. Not part of system
enhancement design
6. What implementation issues do you face in putting UPCs on all of your
products?
7. What could Ingram Micro do to help with these issues?
8. How else, beside product labels, are bar codes used within your
company? (master carton labels, shipping labels, etc.)?
9. Would you mind if one of the advertisers included in this publication
contacted you? _____ Yes _____ No
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
EXHIBIT C
CIS Manufacturer Product Information Library
TechNotes Agreement
This agreement ("Agreement") is made and entered into as of the _____ day of
_________________, 1997 between _______________________("Manufacturer Name"),
with its principle place of business at ------------------------------------
_______________________________________________________(Manufacturer Address)
and Ingram Micro, Inc. ("Ingram") with its principal place of business at 1600
E. St. Andrew Place, Santa Ana, California 92705. By Manufacturer's signature
below. Manufacturer agrees to participate in Ingram's TechNotes program,
according to an bound by the terms and conditions of this Agreement, including
those printed on the reverse side of this page.
PARTICIPATION DETAILS AND REQUIREMENTS:
1. Ingram will distribute all information authored by the Manufacturer
under the terms and conditions of this Agreement.
2. Ingram will provide the Manufacturer with authoring screens for product
templates via the World Wide Web. (Manufacturer must have Internet
access and a frame compatible browser such as Netscape(R) 2.0. or later
or Internet Explorer 3.0.)
3. Manufacturer must maintain the content in the Electronic Catalog by
either maintaining product templates via the authoring tools OR provide
Ingram with product information necessary for Ingram to complete the
TechNotes Templates.
4. Manufacturer agrees to identify a contact person
----------------------------------------------------------------------.
(PERSON WHO WILL BE PROVIDING THE CONTENT TO INGRAM AND CAN AUTHORIZE
ITS DISTRIBUTION)
<TABLE>
<CAPTION>
<S> <C> <C> <C>
TITLE: TELEPHONE #: FAX #:
------------------ -------------------- ----------------
ADDRESS: E-MAIL:
--------------------------------------------------------- --------------
5. 1997 SIGN UP/PARTICIPATION FEE STANDARD BASE PRICE OPTIONAL TEMPLATE ENTRY SERVICE
------------------------------ ------------------- -------------------------------
FREE IF YOU SIGN UP IN 1997 $1,000 VALUE $50 PER SKU (1-100 SKUS)
$35 PER SKU (101-150 SKUS)
$25 PER SKU (150+ SKUS)
</TABLE>
AND
VENDOR MAINTAINS 80% TECHNOTES COMPLETION RATE WITHIN 60 DAYS OF
SIGNING UP FOR PROGRAM. SEE DETAILS BELOW.
TEMPLATES WILL BE FILLED AND UPDATED BY (check one). / / MANUFACTURER
/ / INGRAM (MUST INDICATE $ AMOUNT BELOW)
MANUFACTURER WILL INCUR NO SIGN UP FEES IN 1997 IN MANUFACTURER AGREES
TO THE PROGRAM PRIOR TO DECEMBER 30, 1997. FEE WILL BE COMPLETELY WAIVED IN 1997
IF MANUFACTURER COMPLETES 80% OF ELIGIBLE TECHNOTES WITHIN 60 DAYS OF SIGNING
CONTRACT, AND MAINTAINS AN AVERAGE COMPLETION RATE OF 80%. MANUFACTURER WILL BE
NOTIFIED IN THE EVENT PARTICIPATION LEVEL DROPS BELOW 80% AND WILL BE GIVEN A
GRACE PERIOD IN WHICH TO COMPLETE NECESSARY TECHNOTES.
IF MANUFACTURER SELECTS THE "INGRAM" BOX ABOVE, MANUFACTURER AGREES TO
HAVE INGRAM'S TECHNICAL SUPPORT DEPARTMENT FILL OUT TECHNOTES ON MANUFACTURER'S
BEHALF AND AGREES TO PAY THE SERVICE FEES INDICATED ABOVE AND BELOW. BILLING
WILL BE DONE ON A QUARTERLY BASIS FOR TECHNOTES AUTHORED DURING THE PREVIOUS
QUARTER. FEES FOR THE FIRST 100 TECHNOTES WILL BE $50 EACH. THE NEXT 50
TECHNOTES WILL BE $35 EACH. ADDITIONAL TECHNOTES WILL BE $25 EACH.
$ THERE ARE TWO TYPES OF AUTHORING FEES AVAILABLE TO MANUFACTURERS WHO
HAVE SELECTED TO HAVE INGRAM COMPLETE TECHNOTES: A ONE-TIME START-UP FEE AND A
QUARTERLY MAINTENANCE FEE. START-UP FEES SHOULD BE USED TO FUND INITIAL TECHNOTE
COMPLETION FOR EXISTING PRODUCTS. QUARTERLY MAINTENANCE FEES ARE TO BE USED FOR
COMPLETION OF TECHNOTES FOR NEW PRODUCTS AS THEY ARE RELEASED EACH QUARTER.
PLEASE INDICATE THE AMOUNT MANUFACTURER AGREES TO PAY FOR EACH OF THE FOLLOWING:
START-UP: $____ OR/AND QUARTERLY MAINTENANCE $____. MANUFACTURER WILL ONLY BE
COMPLETED TECHNOTES UP TO THE MAXIMUM AMOUNT INDICATED. PAYMENT IS DUE WITHIN
THIRTY (30) DAYS OF THE INVOICE BILLING DATE. IF PAYMENT IS NOT RECEIVED WITHIN
30 DAYS, INGRAM HAS THE RIGHT TO DEDUCT MONIES FROM MANUFACTURER'S INVOICES.
<TABLE>
<CAPTION>
<S> <C> <C>
METHOD OF PAYMENT (CHECK ONE) SOURCE OF FUNDS (CHECK ONE) ONLY FILL IN THIS SECTION IF INGRAM WILL
- ---------------------------- --------------------------
FILL TECHNOTES.
___ CHECK PAYABLE TO INGRAM MICRO ___ MDF ___ CO-OP
___ CREDIT MEMO (REQUIRES BUYER ___ IN-HOUSE MDF ___ OTHER (MVP, ETC.) _____ (Please
APPROVAL) specify)
</TABLE>
AGREEMENT WILL CONTINUE ONE YEAR FROM THE DATE ABOVE. THEREAFTER, THE
AGREEMENT WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL ONE YEAR PERIODS, SUBJECT
TO THE RIGHT OF EITHER PARTY TO TERMINATE AT THE END OF THE TERM BY DELIVERING
WRITTEN NOTICE TO THE PARTY AT LEAST THIRTY (30) DAYS PRIOR TO THE END OF THE
PERIOD. MANUFACTURER MAY TERMINATE THIS AGREEMENT, WITH OR WITHOUT CAUSE.
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
INGRAM RESERVES THE RIGHT, AT ANY TIME, TO REVIEW AND/OR EDIT
INFORMATION ADDED TO THE MANUFACTURER PRODUCT INFORMATION LIBRARY'S ELECTRONIC
CATALOG WITHOUT NOTICE, AND TO REFUSE OR CANCEL PARTICIPATION FOR NAY REASON AT
ANY TIME.
->->-> THE FOLLOWING INFORMATION IS VERY CRITICAL. PLEASE COMPLETE!
->-> PLEASE INDICATE ALL VENDOR NUMBERS ASSOCIATED WITH THIS
MANUFACTURER:_________________
-> WHO IS THE BUYER ________________ EXT. ________ AND MARKETING
MANAGER __________________ EXT.________________
Return completed agreement to marketing manager or buyer. Side 1 of 2
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
CIS/Manufacturer Product Information Library Content Distribution Agreement
This agreement "Agreement" is made and entered into as of the ___ day of
__________, 1997 (The "Commencement Date") between Ingram Micro Inc., a Delaware
corporation ("Ingram"), and ___________________ ("Manufacturer"), a
________________________ corporation.
The parties agree as follows:
1. DELIVERY AND LICENSE. Manufacturer agrees to provide Ingram data and
information regarding Manufacturer's products and services (collectively
"Information") for distribution by Ingram through its information distribution
services which may be updated from time to time (hereinafter referred to as the
"Manufacturers Product Information Library" or "MPLL"), including, but not
limited to, distribution via the World Wide Web, Fax, CD-Rom, Floppy disk, and
other electronic media. Manufacturer hereby grants Ingram a non-exclusive
worldwide license to market, license, distribute, display, perform, transmit and
promote the information through the MPIL. Manufacturer agrees to deliver the
information to Ingram in the manner and format set forth in the MPIL Policies
and Procedures Manual ("Procedures"). Manufacturer agrees to deliver the
information to Ingram in the manner and format set forth in the MPIL Policies
and Procedures Manual ("Procedures"). Manufacturer agrees that it is both
necessary and of mutual benefit to the parties that the information be as error
free as is commercially feasible.
2. USE. Both parties agree that the MPIL (and Manufacturer's information
therein) will be made available to users which have registered with Ingram to
use the MPIL. Manufacturer acknowledges that the information will be made
available to such users worldwide via the World Wide Web or other methods of
distribution.
3. INFORMATION WARRANTIES. Manufacturer hereby represents and warrants that the
information (i) will not infringe on or violate any copyright, patent or any
other proprietary right of any third party, and (ii) will not contain any
content, materials or services which violate any applicable law, regulation or
third party right, and (iii) contains no computer virus or similar program or
data.
4. INGRAM OPERATING RESPONSIBILITIES. Ingram will maintain and implement such
facilities, equipment, programming and data communications network and any other
combination of hardware and software as are necessary to offer and provide MPIL.
Ingram shall not be responsible for screening, editing, or monitoring the
information prior to its distribution by MPIL.
5. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE
TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL CONSEQUENTIAL SPECIAL OR EXEMPLARY
DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF TH EPOSSIBILITY OF SUCH
DAMAGES), ARISING FROM THE USE OR INABILITY TO USE THE MPIL OR THE INFORMATION,
OR ANY OTHER PROVISIONS OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF
REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.
6. NO ADDITIONAL WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS OR WARRANTIES, EXPRES OR IMPLIED, REGARDING THE MPIL OR THE
INFORMATION, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR
COURSE OF PERFORMANCE.
7. INDEMNITY. Either party will defend, indemnify, save and hold harmless the
other party and the officers, directors, agents, affiliates, distributors,
franchisees and employees of the other party from any and all third party
claims, demands, liabilities, cost or expenses, including reasonable attorney's
fees ("Liabilities"), resuming from the indemnifying party's material breach of
any duty, representation, or warranty of this Agreement, except where
Liabilities result from the gross negligence or knowing and willful misconduct
of the other party.
8. LAW. The validity, construction, and performance of this Agreement will be
governed by the substantive law of the State of California, not including its
law on conflicts of laws. If any provision of this Agreement is held by a
court of competent jurisdiction to be illegal, invalid, unenforceable, or
otherwise contrary to law, the remaining provisions of this Agreement shall
remain in full force and effect.
9. INDEPENDENT CONTRACTORS. The parties hereto hereby agree that in the
performance of their respective obligations hereunder, they are, and shall be
independent contractors, and not agents of each other.
10. WAIVER. The failure of either party to enforce or to exercise, at any time
or for any period of time, any term of or any right arising pursuant to this
Agreement does not constitute, and shall not be construed as, a waiver of such
term or right, and shall in no way affect that party's right later to enforce or
exercise it.
11. CONFIDENTIAL INFORMATION. Each party acknowledges that Confidential
Information may be disclosed to the other party during the course of this
Agreement. Each party agrees that it shall take reasonable steps, at least
substantially equivalent to the steps it takes to protect its own proprietary
information, during the period this Agreement is in effect, and for a period of
three (3) years following expiration or termination of this Agreement, to
prevent the duplication or disclosure of Confidential Information, other than by
or of its employees or agents who must have access to the Confidential
Information to perform such party's obligations hereunder, who shall each agree
to comply with this Section 11. Nor shall there be "Confidential Information"
for purposes of this Agreement, any information relating to or disclosed in the
course of the Agreement, which is or should be reasonably understood to be
confidential or proprietary to the disclosing party, including, but not limited
to, the material terms of this Agreement, technical processes and formulas, and
source codes, sales, projections and marketing data.
12. NOTICES. All notices or other communications required to be given hereunder
shall be in writing and delivered either personally or by mail or overnight
courier to the parties at the address provided by each party below, unless such
address has been changed and notice of such change has been delivered in
accordance with this provision.
13. ENTIRE AGREEMENT. The provisions of this Agreement or other agreements
authorizing Ingram to distribute manufacturer's information constitute the
entire Agreement between the subject matter hereof, except other related
agreements referenced herein. No amendment, modification, or waiver of any
provision of this Agreement shall be effective unless it is set forth in a
writing that refers to the Agreement and provisions so affected and is executed
by authorized representatives of both parties.
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
- --------------------------------------------------------------------------------
AGREED AS OF THE COMMENCEMENT DATE STATED ABOVE.
<TABLE>
<CAPTION>
<S> <C>
"MANUFACTURER" "INGRAM"
(Company Name) Ingram Micro Inc.
-------------------------------------
(Mailing Address) 1600 E St Andrew Place
----------------------------------
(City, State, Zip) Santa Ana, California 92706
-------------------------------
By: (and) By: (and)
----------------------------------------- ----------------------------------------
(sign) (sign)
----------------------------------------- ----------------------------------------
Title: Title: Ext.
-------------------------------------- ------------------------------------- ----
(must be signed by marketing manager or buyer)
</TABLE>
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
EXHIBIT D
PRODUCT PRICE LIST
The prices for the Products offered under this Agreement shall be (check one):
__________ As shown on Vendor's price list dated _____________.
__________ As shown below.
PRODUCT LIST PRICE DISCOUNT
- --------------
**[CONFIDENTIAL TREATMENT REQUESTED] Indicates material that has been omitted
and for which confidential treatment has been requested. All such omitted
material has been filed with the Securities and Exchange Commission pursuant to
Rule 406 promulgated under the Securities Act of 1933, as amended.
<PAGE>
EXHIBIT E
PARTNERSHIP AMERICA-SM- PROGRAM ADDENDUM
THIS PARTNERSHIP AMERICA-SM- PROGRAM ADDENDUM ("Addendum") is made and entered
into this ____ day of _________________, 199___ by and between INGRAM MICRO
INC., a DELAWARE corporation ("Ingram") and ________________________ ("Vendor")
a _____________ corporation (state of incorporation).
RECITALS
A. On or about _____________, 199__, Ingram and Vendor entered into a
Distribution Agreement ("Distribution Agreement"), whereby Ingram was
granted the right to distribute in the U.S., all micro-computer products
manufactured, produced and/or offered by Vendor ("Vendor Products").
B. Ingram and Vendor now desire to sell and distribute Vendor Products,
through resellers and system integrators, to federal, state and local
governments and their various agencies and departments ("Government") in
accordance with the terms and conditions of this Addendum.
NOW, THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the mutual covenants and promises
contained herein, the parties agree as follows:
1. PARTNERSHIP AMERICA-SM- PROGRAM. Vendor hereby grants to Ingram, and
Ingram hereby accepts, the non-exclusive right to provide product and
services to resellers and system integrators in connection with
Ingram's sale and distribution of Vendor Product(s) to the Government
in support of specific government contract opportunities.
2. VENDOR OBLIGATIONS
2.1. PRODUCT NOTIFICATION. Vendor shall notify Ingram of any new
Vendor Product(s), or any major revision of a Vendor Product(s),
and shall make such Vendor Product(s) available for distribution
by Ingram no later than the date of first introduction into the
Government marketplace.
2.2. FIRM FIXED PRICING. Upon request, Vendor shall provide "Firm
Fixed Pricing" which shall guarantee the pricing of the Vendor
Product(s) for the effective term of a specific Government
contract. Vendor shall give Ingram thirty (30) days advance
written notice of any Vendor Product(s) being discontinued.
2.3. REPRESENTATIONS AND CERTIFICATIONS. Vendor understands that due
to the nature of Government bidding, Vendor may be required to
enter into a procurement specific non-disclosure agreement or
make certain representations and certifications before any Vendor
Product(s) are sold or distributed into the Government
marketplace. In addition, Vendor agrees to provide Ingram with an
annual statement of representations and certifications.
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
3. INGRAM OBLIGATIONS
3.1. GOVERNMENT SALE SPECIALISTS. Ingram shall maintain a separate
government sales office, which shall include sales specialists
with an understanding of Government regulations and Government
contract terms and conditions to support resellers and system
integrators in the Government marketplace.
3.2. CONFIGURATION. Ingram shall maintain a configuration facility for
system integration and testing in support of Government specific
contracts and opportunities for resellers.
3.3. REPORTS. Ingram agrees to make available to Vendor, within ten
(10) days after the close of each month, via an electronic
bulletin board system, a point-of-sale report by zip code, of
Vendor Products sold or distributed to resellers for Government
specific contracts. Vendor shall provide Ingram with a list of
individuals authorized to receive such reports.
4. PRICING. The price and applicable discount for all Vendor Products
sold through the Partnership America-SM- Program is set
forth in Exhibit "A" attached hereto. The pricing and discounts
for Vendor Products set forth therein shall only apply to Vendor
Products sold through the Partnership AmericaSM Program into the
Government marketplace. Ingram will, in its sole discretion,
determine the sale price to resellers and system integrators for
all Vendor Products. All Vendor Products pricing and discounts
set forth pursuant to this Section shall not apply to, amend or
affect the pricing and discounts set forth in connection with any
Vendor Products sold and distributed pursuant to the Distribution
Agreement. Vendor understands and agrees that for certain
Government proposals/quotes, which specify a significant quantity
of Vendor Products, Vendor shall provide program specific pricing
that will include additional discounts to those set forth in
Exhibit "A".
5. TERMINATION. Either Vendor or Ingram may terminate this Addendum,
with or without cause, by giving the other ninety (90) days
written notice. Termination of this Addendum shall not result in
the termination of the Distribution Agreement. Termination of
this Addendum shall not affect the terms and conditions of any
Letter of Supply, issued by Vendor pursuant to Subsection 2.2. In
the event this Addendum is terminated, the rights of the parties
shall be determined under the terms and conditions of the
Distribution Agreement.
6. DISTRIBUTION AGREEMENT TERMS AND CONDITIONS. Except as otherwise
provided pursuant to this Addendum, all terms and conditions of
the Distribution Agreement shall apply to the Partnership
America-SM- Program.
- --------------------------------------------------------------------------------
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
EXHIBIT F
RED HAT SOFTWARE, INC.
Trademark Usage Guide
Copyright (C) 1998 Red Hat Software, Inc. All rights reserved.
I. INTRODUCTION
The trademarks of Red Hat Software, Inc. represent the quality, innovation, and
excellence of Red Hat Software's products. They are recognized the world over as
a symbol of the most advanced computing technology. They serve to distinguish
those products that are officially endorsed by Red Hat Software, Inc. and those
that come from other entities. As a result, the trademarks of Red Hat Software,
Inc. are an extremely valuable resource, and are a critical component of Red Hat
Software's business strategy.
The development of a loyal brand following among customers is important to the
long term success of any business. This is especially important in the computer
software field, in which technology evolves extraordinarily rapidly and in which
new companies continually enter the marketplace. Nowhere is this more evident
than in the Linux-Registered Trademark- marketplace, in which the cooperative
development model fosters unsurpassed innovation and technological advancement.
In working with the cooperative development model, brand identity is often the
strongest and most visible aspect that separates one company from another.
Over a period of years, Red Hat Software has worked hard to develop a
consistent, high quality brand by producing computing products of the highest
possible technology, innovation, and quality. Our hard work has lead to several
prestigious international awards and multitudes of enthusiastic users across
the globe. As a result, the "Red Hat"-Registered Trademark- brand name and
associated trademarks have tremendous value in the marketplace, and arE an
extremely effective sales tool. Ensuring that the "Red Hat" brand and
trademarks are used properly and consistently will continue to develop the
value of that brand, and will allow you to benefit from it.
This Guide is designed to give you clear instructions for the use of Red Hat
Software trademarks. Please review it carefully. This document is designed to
assist you in implementing the separate written agreement you have entered with
Red Hat Software that permits you to use certain Red Hat Software trademarks.
Please review that separate written agreement to understand which trademarks you
are authorized to use, and to what extent and scope you may use them. The two
documents go hand in hand, but nothing in this document gives you greater rights
than the written contract between you and Red Hat Software. Rather, this
Trademark Guide is designed to help you implement the written contract.
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
The next few pages give you guidelines for the proper use of certain Red Hat
Software trademarks. Please be sure to follow those guidelines each time you use
any Red Hat Software trademark. The first section is a basic summary of
trademark law to help you understand the importance of adhering to these use
guidelines. The following sections address the particular circumstances of text
trademarks and logo trademarks.
Keep in mind that the trademarks of Red Hat Software are a valuable business
asset, and should be treated with care and respect. In order to preserve
trademark rights, all trademarks must be used consistent with these guidelines.
Failure to do so can result in a loss of trademark rights. The consistent use
over time will allow the value of the marks to increase, and will allow you to
benefit from that experience.
II. BASIC TRADEMARK USE RULES
The following guidelines apply to use of any and all trademarks, not just those
of Red Hat Software, Inc. They are helpful background information that should
assist you in preserving and enhancing the value of all trademarks you use
throughout your work.
1. DISTINGUISH. When using any trademark in printed materials, always try to
distinguish the mark in relation to other words in the text. This may be done by
printing the mark inside quotation marks, by printing it using all capital
letters, or by using bold print. This document is a good example of
distinguishing trademarks from surrounding text.
2. FORM. It is important to adhere to the exact form of each trademark. We are
an innovative and creative company, except when it comes to the use of our
trademarks. Do not use a clever play on words, or make other alterations to any
marks. Note that "RED HAT" is two separate and distinct words, and should never
be combined into a single word as "Redhat." The marks should not be translated
into other languages, nor should they be combined with marks of other
organizations. Be sure to review the guidelines in Section IV, for printing
graphical marks and logos.
3. ADJECTIVES. Always use marks as adjectives, and never as nouns. The use of
any mark in text should be immediately followed by a noun. For instance, state
"We recommend you use the RED HATTM Linux operating system," rather than, "We
recommend you use Red Hat." On a related note, avoid using marks in the
possessive form, in the plural, or as a verb. The examples below illustrate
proper usage.
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
<TABLE>
<CAPTION>
- ------------------- --------------------------------------------------- ----------------------------------------------
AVOID CORRECT
- ------------------- --------------------------------------------------- ----------------------------------------------
<S> <C> <C>
NOUN "RED HAT's performance is incredible." "The RED HAT Linux operating system's
performance is incredible."
- ------------------- --------------------------------------------------- ----------------------------------------------
PLURAL "Corporate demand for RED HATs is surging." "Corporate demand for the RED HAT Linux
operating system is surging."
- ------------------- --------------------------------------------------- ----------------------------------------------
VERB "RED HAT your entire network." "Set up your entire network using the RED
HAT Linux operating system."
- ------------------- --------------------------------------------------- ----------------------------------------------
</TABLE>
4. SYMBOL. When a trademark of Red Hat Software, Inc. first appears in
the body of printed text, it should be followed by the appropriate trademark
notice symbol. For registered marks, -Registered Trademark- is appropriate. For
unregistered marks, use TM. After the first use of one of these symbols, it
need not be used again after that mark in the text. Generally, the symbol is
not needed if the mark is used in the text's title or headline. Marks should
always have the appropriate symbol when used on product packaging, in
advertisements, or in other marketing material. In addition, be sure to include
an attribution statement for each mark used. Please see Section III.4 for the
proper form of such a statement.
III. TEXT TRADEMARKS
Proper use of Red Hat Software trademarks is essential to maintain and increase
their value in the marketplace. The guidelines that follow provide basic rules
of trademark usage, including the form, manner, and place of use.
Please refer to the Agreement signed by you and Red Hat Software, Inc., for
additional information. That Agreement outlines the rights you have to use
certain Red Hat Software trademarks, and this document is designed to assist you
in implementing and exercising those rights. Both documents function together,
and you should consult them regularly.
1. The words "RED HAT"
The words "RED HAT" are associated the world over with the quality and
innovation of Red Hat Software, Inc.'s products. These words must be used
carefully. Whenever possible, we recommend you use them only to refer to the
official products and services of Red Hat Software, Inc., or in conjunction with
your status as a Red Hat Software Partner.
Be sure to follow the general trademark use rules in Section II., Basic
Trademark Use Rules. The guidelines presented there are especially relevant and
helpful for handling the use of words as trademarks.
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
2. Attribution Statements
When you us any Red Hat Software, Inc. trademark in the body of written text, be
sure to attribute it properly. In addition to placing the correct notation after
the first use of each trademark (see Basic Trademark Use Rules), also include an
attribution statement in a prominent place, such as a footnote, or at the
beginning of the document. For registered trademarks of Red Hat Software, the
correct attribution statement is:
"[TRADEMARK] is a registered trademark of Red Hat Software, Inc."
For unregistered marks, use:
"[TRADEMARK] is a trademark of Red Hat Software, Inc."
IV. LOGO TRADEMARKS
Logos are often the most unique trademarks of a company, and are instrumental in
developing consumer loyalty and brand identification. For this reason, it is
especially important that logos be used consistently. Modifications, even
slight, may confuse the public and can damage brand allegiance and loyalty. We
offer you the following guidelines to help you maintain the high value of the
RED HAT SHADOW MAN logo (the "Logo"). Any use of the Logo that varies or
deviates from these guidelines may be performed only with the written permission
of Red Hat Software, Inc.
1. COLOR. It is important to use consistent coloration of the Logo. The
following guidelines will ensure uniformity among all partners. Be sure to
review the camera-ready Logo slick, included with the packet of material
accompanying this Guide, for examples of proper usage.
a. All printing should be done on high-quality white stock paper.
b. Use the exact color scheme shown on the materials enclosed with this
booklet. The color red should be printed using Pantone-Registered Trademark-
Matching System (PMS) 1797, and black should be black.
c. Never use any colors other than the prescribed red, black, and
white.
d. If you use the Logo in black and white, do not use gray shading. For
example, the hat which is red in the full color version should be white, not
gray, in the black and white version.
2. SIZE. You may vary the size of the Logo to suit your needs, provided
that you abide by the following guidelines.
a. The minimum size of the Logo is five-eighths of an inch, or 0.7
centimeters, in height. This size may be appropriate for business cards and
other small materials. There is no maximum size for the Logo in large display
items such as trade show signs, blimps, and hot air balloons.
b. On products, the Logo should occupy no more than 10%, and no less
than 1%, of the surface area of any single surface. For instance, on a box with
100 square inches on the front, the Logo should occupy no more than 10 square
inches, and no less than 1 square inch.
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
3. APPEARANCE. It is critical to ensure that any adjustments in size are made
proportionally, so that the overall impression is not distorted. Do not adjust
the length of the logo without similarly and proportionally adjusting the
height. Be sure to keep the logo intact as it exists currently. Do not use some
portions of the Logo while leaving other parts out.
4. ATTRIBUTION. As with Text trademarks, it is important that logo trademarks
are properly attributed. When using the Logo, include a proper attribution
statement.
V. CONCLUSION
The guidelines presented here establish a means to preserving trademark
protection for the Red Hat Software trademarks, including the Red Hat Shadow Man
logo. By following these guidelines, you make a wise investment in your future,
as you help ensure that today's trademarks will preserve their value over time.
Red Hat Software, Inc. looks forward to working with you throughout our
relationship to develop the fame and value of the Red Hat trademarks, and we are
pleased to have you as a partner in that endeavor.
Should you have any questions, please do not hesitate to contact us.
Pantone is a registered trademark of Pantone, Inc. Linux is a registered
trademark of Linus Torvalds.
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
EXHIBIT G
POINT OF SALE REPORT
LICENSE AGREEMENT
This Agreement (the "Agreement") is made this 15th day of October, 1998 by and
between Ingram Micro Inc., a Delaware corporation with its principal place of
business at 1600 East St., Andrew Place, Santa Ana, California 92705
("Ingram"), and Red Hat Software, a Delaware corporation, with its principal
place of business at 4201 Research Commons, Suite 100, Research Triangle Park,
North Carolina 27709 ("Licensee").
WHEREAS Ingram is engaged in the research, collection, compilation and
distribution of- information relating to its sales and it is willing to
license such information to Licensee for its internal use. Licensee wishes to
receive such information and to use it in accordance with the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises set out herein, the
parties hereby agree as follows:
1. INFORMATION DEFINED. Ingram shall provide Licensee information relating to
its sales and such information includes, but is not limited to the Point of Sale
Report hereinafter referred to as "Proprietary Information".
2. LICENSE TO USE. Ingram hereby grants Licensee a nonassignable license to
use the Proprietary Information for internal purposes only. Licensee agrees not
to contact any customer or dealer listed in the Proprietary Information for the
purpose of soliciting a direct sales relationship between Licensee and such
customer or dealer. Notwithstanding the foregoing, Licensee shall not be
prohibited from contacting or soliciting those customers or dealers (a) with
whom Licensee already has a direct relationship, (b) who contact Licensee of
their own accord, and (c) who are developed as prospective customers or dealers
independent of the "Proprietary Information."
3. LICENSE FEES In consideration of its right to use Proprietary
Information, Licensee agrees to pay Ingram [CONFIDENTIAL TREATMENT
REQUESTED]** of Ingram's monthly sales of Vendor's product during the period
of this Agreement, in the form of a credit issued monthly for the prior month.
4. TERM. The term of this Agreement, unless terminated in accordance with
paragraph 9, shall be concurrent with the term of that mutual Distribution
Agreement between Ingram Micro Inc. and Licensee dated October 15, 1998,
incorporated by reference as if fully set forth herein. In the event of
expiration or earlier termination of the Distribution Agreement or the earlier
termination of this Agreement Ingram may deduct any outstanding accrual of the
rebated amount.
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
5. COPYRIGHT. Licensee acknowledges that all Proprietary Information and all
written descriptions, extractions, or summaries thereof, whether made by
Licensee or Ingram, shall be the property of Ingram and that the granting of a
license to use the Proprietary Information hereunder shall in no way constitute
or be construed as a grant of any proprietary interests or copyrights in
Proprietary Information. Licensee agrees that it will not copy, scan, duplicate
or reproduce any of the Proprietary Information in any manner whatsoever, except
that Licensee shall be Permitted to create additional copies of the Proprietary
Information for its internal use only.
6. NON-DISCLOSURE. Licensee agrees to hold in confidence and not to directly
or indirectly use, reveal, report, publish, disclose or transfer to any other
person or entity any of the Proprietary Information or utilize any of the
Proprietary Information for any purpose at any time except as permitted under
Section 2. Licensee shall have the right to disclose the Proprietary Information
to key employees of Licensee to the extent necessary to perform tasks directly
related to the permitted uses; provided, however that the Licensee shall take
steps to ensure that such employees conduct themselves so as to preserve
confidentiality of the Proprietary Information. Licensee and Ingram mutually
agree that Ingram's public disclosure of the Proprietary Information, except
pursuant to a confidential disclosure agreement, to any party will release
Licensee from the obligation of confidentiality with respect to that portion of
the Proprietary Information actually disclosed by Ingram.
7. REMEDY IN EVENT OF UNAUTHORIZED DISCLOSURE. Because of the unique and
proprietary nature of the Proprietary Information, it is understood and agreed
that Ingram's remedies at law for a breach by Licensee of its obligations under
this Agreement will be inadequate and that Ingram shall, in the event of such
breach by Licensee, be entitled to equitable relief (including without
limitation, injunctive relief and specific performance) without any requirement
to post a bond as a condition for such relief, in addition to all other remedies
under this Agreement or available at law. In addition, Vendor agrees to and
shall indemnify Ingram from and compensate Ingram for any and all damage or
injury, including legal fees and costs incurred by Ingram because of Vendor's
misuse of any Proprietary Information or costs incurred by Ingram in enforcing
its rights hereunder. This provision shall survive the expiration or earlier
termination of this Agreement for a period of one (1) year.
8. DISCLAIMER OF LIABILITY. Ingram makes no warranty, either express or
implied, as to the completeness and accuracy of the Proprietary Information. All
Proprietary Information is provided to Licensee "as is". INGRAM DISCLAIMS ALL
WARRANTIES RELATING TO THE PROPRIETARY INFORMATION. INGRAM DISCLAIMS ALL IMPLIED
WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE. Licensee's sole remedy in the event that Proprietary
Information contains a material error (which Ingram cannot correct within thirty
(30) days after Licensee notifies Ingram in writing) shall be to return the
Proprietary Information to Ingram for a refund of a prorate portion of the
license fee as applicable.
9. TERMINATION. Upon termination of this Agreement by either party for any
reason which shall be effective upon thirty (30) days written notice, Vendor
shall return all Proprietary Information, irrespective
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
of format, to Ingram within thirty (30) days of the effective date of
termination or if Ingram so requests, to certify to Ingram that all Proprietary
Information and copies have been destroyed. For purposes of enforcing this
provision, Vendor's return obligation shall survive the termination of this
Agreement.
10. ADDITIONAL PROVISIONS. This Agreement shall be governed by the laws of the
State of California. This Agreement contains the full and complete understanding
of the parties with respect to the subject matter hereof and supersedes all
prior representations or understandings, whether oral or written. In the event
that any provision is found invalid or unenforceable pursuant to statutory or
judicial decree, such provision shall be construed only to the maximum extent
permitted by law, and the remainder of the Agreement shall be valid and
enforceable - in accordance with its-terms. Notwithstanding the termination or
expiration of any other agreement between the parties, the obligations created
hereunder shall continue indefinitely.
INGRAM MICRO INC. RED HAT SOFTWARE
By: /s/ Michael Terrell By: /s/ Paul Mcnamara
------------------------------------- ------------------------
Name: Michael Terrell Name: Paul Mcnamara
------------------------------------- ------------------------
Title: Vice President Purchasing Title: Vice President
------------------------------------- ------------------------
Date: November 13, 1998 Date: November 6, 1998
------------------------------------- ------------------------
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
November 4, 19998
Geno Marcoux
Ingram Micro
Fax: 714-247-3223
Dear Geno:
As agreed upon in yesterday's meeting with Paul McNamara, the following pricing
schedule [CONFIDENTIAL TREATMENT REQUESTED]** will apply to Ingram Micro's sale
of Red Hat Software's retail software products.
<TABLE>
<CAPTION>
- ------------------------------------------------ ----------------------- ---------------- ----------------------------
PRICING SCHEDULE
- ------------------------------------------------ ----------------------- ---------------- ----------------------------
PRODUCT PRODUCT CODE LIST PRICE [CONFIDENTIAL TREATMENT
BOXED SETS REQUESTED]**
- ------------------------------------------------ ----------------------- ---------------- ----------------------------
<S> <C> <C> <C>
Red Hat Linux 5.2/Intel RH5020 $49.95 [CONFIDENTIAL TREATMENT
REQUESTED]**
- ------------------------------------------------ ----------------------- ---------------- ----------------------------
Red Hat Linux 5.2/Alpha ARH5020 $49.95 [CONFIDENTIAL TREATMENT
REQUESTED]**
- ------------------------------------------------ ----------------------- ---------------- ----------------------------
Red Hat Linux 5.2/SPARC SRH5020 $49.95 [CONFIDENTIAL TREATMENT
REQUESTED]**
- ------------------------------------------------ ----------------------- ---------------- ----------------------------
Red Hat Linux Power Tools PT1000 $39.95 [CONFIDENTIAL TREATMENT
REQUESTED]**
- ------------------------------------------------ ----------------------- ---------------- ----------------------------
Red Hat Linux Extra! RH5300 $79.95 [CONFIDENTIAL TREATMENT
REQUESTED]**
- ------------------------------------------------ ----------------------- ---------------- ----------------------------
Red Hat Secure Web Server 2.0 WB2000 $99.95 [CONFIDENTIAL TREATMENT
REQUESTED]**
- ------------------------------------------------ ----------------------- ---------------- ----------------------------
BOOK + CDROM
- ------------------------------------------------ ----------------------- ---------------- ----------------------------
Red Hat Motif 2.1.1 RH2110 $149.00 [CONFIDENTIAL TREATMENT
REQUESTED]**
- ------------------------------------------------ ----------------------- ---------------- ----------------------------
</TABLE>
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------ ----------------------- ---------------- ----------------------------
JEWEL CASE
- ------------------------------------------------ ----------------------- ---------------- ----------------------------
<S> <C> <C> <C>
Red Hat Variety Pack RH5400 $29.95 [CONFIDENTIAL TREATMENT
REQUESTED]**
- ------------------------------------------------ ----------------------- ---------------- ----------------------------
Red Hat Off Line LA1000 $24.95 [CONFIDENTIAL TREATMENT
REQUESTED]**
- ------------------------------------------------ ----------------------- ---------------- ----------------------------
Red Hat Linux Library RH5005 $29.95 [CONFIDENTIAL TREATMENT
REQUESTED]**
- ------------------------------------------------ ----------------------- ---------------- ----------------------------
Linux Rough Cuts RC1000 $29.95 [CONFIDENTIAL TREATMENT
REQUESTED]**
- ------------------------------------------------ ----------------------- ---------------- ----------------------------
Extreme Linux EX1000 $29.95 [CONFIDENTIAL TREATMENT
REQUESTED]**
- ------------------------------------------------ ----------------------- ---------------- ----------------------------
BOOKS
- ------------------------------------------------ ----------------------- ---------------- ----------------------------
Linux Undercover B20080 $39.95 [CONFIDENTIAL TREATMENT
REQUESTED]**
- ------------------------------------------------ ----------------------- ---------------- ----------------------------
Maximum RPM B2005 $34.95 [CONFIDENTIAL TREATMENT
REQUESTED]**
- ------------------------------------------------ ----------------------- ---------------- ----------------------------
Red Hat Linux 5.2
- ------------------------------------------------ ----------------------- ---------------- ----------------------------
Installation Guide RH5021 $14.95 [CONFIDENTIAL TREATMENT
REQUESTED]**
- ------------------------------------------------ ----------------------- ---------------- ----------------------------
</TABLE>
[CONFIDENTIAL TREATMENT REQUESTED]**
[CONFIDENTIAL TREATMENT REQUESTED]** of the products listed above for the
period November 4, 1998 through January 1, 1999. Payment will be January 31,
1999 in the form of a credit memo and applied against any outstanding balance.
[CONFIDENTIAL TREATMENT REQUESTED]**
Geno, please call me immediately if you have any questions, or require
additional information to set up products.
Best regards,
/s/ Terry Tomlinson
- -------------------
Terry Tomlinson
- 2 -
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
AMENDMENT
This is an amendment ("Amendment") to a separate written agreement ("Agreement")
entered into on October 15, 1998, by and between Ingram Micro, Inc. ("Ingram"),
a Delaware corporation, and Red Hat Software, Inc. ("Vendor"), a Delaware
corporation. The parties agree that since the Agreement took effect, Vendor has
introduced new products which consist primarily of services to be provided by
Vendor to customers, and Ingram wishes to distribute those products pursuant to
the Agreement. Therefore, the parties hereby agree to the following terms and
conditions:
1. This Amendment shall be effective as of the date it is executed by both
parties, and it shall terminate upon the termination of the Agreement, or as
otherwise agreed to in writing by both parties.
2. "Enterprise Product" means those products offered by Vendor which are
designed for use by enterprise customers. Enterprise Product offered by
Vendor may be determined by Vendor from time to time, and as of the date of
this Amendment includes the following:
A. Enterprise Support Product:
(1) 10-Incident Support Pack
(2) 25-Incident Support Pack
B. Enterprise Software Product:
(1) Red Hat Linux System Builder Edition OEM
(2) Red Hat Linux Commercial Server Edition OEM
(3) Red Hat Linux Commercial Server Edition
C. For purposes of this Amendment and the Agreement, Enterprise
Product shall be considered Product as defined in Agreement.
3. With respect solely to Enterprise Product, the last sentence of Section 1.1
of Agreement is deleted and is replaced with the following:
Ingram shall have the right to purchase, sell and ship Enterprise Product to any
and all Registered Resellers within the Territory. "Registered Reseller" means
those resellers that have registered with Vendor as required by Vendor in its
discretion from time to time, and which Vendor indicates to Ingram are properly
registered. Ingram shall not sell, ship or otherwise distribute Enterprise
Product to any party that is not a Registered Reseller.
4. With respect solely to Enterprise Product, Section 7 ("Returns") of the
Agreement is deleted and is replaced by the following:
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- --------------
**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
A. STOCK BALANCING. In the event that Vendor releases a new version
of its Red Hat Linux software, Ingram may return unsold
Enterprise Software Product containing the previous version of
Red Hat Linux to Vendor for full credit of the purchase price paid by
Ingram [CONFIDENTIAL TREATMENT REQUESTED]**. Vendor shall apply credit
of the purchase price of returned Enterprise Software Product to
Ingram's purchase of the new version of the Enterprise Software
Product. In the event that Enterprise Support Product is unsold after
[CONFIDENTIAL TREATMENT REQUESTED]**, Ingram may return it in unopened
box condition only and, upon receipt of returned Support Product by
Vendor in satisfactory condition, Vendor shall apply credit of purchase
price of Enterprise Support Product to purchase of Enterprise Software
Product. All Enterprise Software Product or Enterprise Support Product
to be returned to Vendor pursuant to this section must be in original,
complete, unused and unopened condition.
B. POST-TERM/TERMINATION. For [CONFIDENTIAL TREATMENT REQUESTED]** after
the expiration or earlier termination of the Agreement, Ingram may
return to Vendor unsold Enterprise Software Product in its inventory.
All Enterprise Software Product to be returned to Vendor pursuant to
this section must be in original, complete, unused and unopened
condition. Vendor shall apply credit of the purchase price
[CONFIDENTIAL TREATMENT REQUESTED]**, to Ingram's outstanding invoices,
and in the event there are no outstanding invoices, Vendor shall issue
a cash refund to Ingram.
C. PRODUCT DISCONTINUATION. Vendor reserves the right to discontinue,
cancel, change, or otherwise modify the support services component of
any or all Enterprise Product. Vendor shall provide Ingram with
[CONFIDENTIAL TREATMENT REQUESTED]** notice of any discontinuation,
cancellation, change to, or other modification of any or all Enterprise
Product, Ingram shall, upon written request from Vendor, return to
Vendor all such Enterprise Product in its inventory within
[CONFIDENTIAL TREATMENT REQUESTED]** of receipt of such request. Vendor
shall, upon receipt of such returned Enterprise Product, credit Ingram
for the purchase price paid for such Enterprise Products [CONFIDENTIAL
TREATMENT REQUESTED]**. All Enterprise Product to be returned by Ingram
pursuant to this section must be in original, complete, unused and
unopened condition. Except as provided in this section, no Enterprise
Support Product be returned to Vendor by Ingram.
D. DEFECTIVE PRODUCT.
(1) Ingram may return to Vendor the software or documentation
component of any Enterprise Product that is defective. Upon receipt of
such defective component, Vendor shall provide Ingram with replacement
component and shall credit Ingram with the reasonable ground freight
charges incurred by Ingram in returning such defective component to
Vendor. In no event shall the support services component of any
Enterprise Product to be considered defective.
- 3 -
- --------------
**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
(2) If any Enterprise Product is recalled by Vendor because
of defects, Ingram will provide reasonable assistance to Vendor with
such recall, and Vendor shall pay Ingram's reasonable expenses in
connection with such recall.
5. Vendor's price list, set forth in Exhibit D of Agreement, is amended to
include the Enterprise Product price list attached to this Amendment as Schedule
A.
6. All provisions of Agreement not modified or amended by this Amendment shall
remain in full force and effect. To show their assent, the parties have executed
this Amendment as shown below:
<TABLE>
<CAPTION>
<S> <C>
- ------------------------------------------------------- ----------------------------------------
RED HAT SOFWARE, INC. ("Vendor") INGRAM MICRO INC. ("Ingram")
By: /S/ TERESA SPANGLER By: /S/ MICHAEL TERRELL
Name: TERESA SPANGLER Name: MICHAEL TERRELL
Title: BUSINESS UNIT LEADER CHANNELS Title: VICE PRESIDENT, PURCHASING
Date: FEBRUARY 3, 1999 Date: FEBRUARY 9, 1999
- ------------------------------------------------------- ----------------------------------------
</TABLE>
February 1999 EXHIBIT A ADDENDUM TO INGRAM AGREEMENT
ENTERPRISE PRODUCTS
The products below are intended to be sold only to resellers registered as Red
Ht Registered Resellers of these products.
<TABLE>
<CAPTION>
PRODUCT CODE DESCRIPTION UPC# LIST PRICE INGRAM PRICE DISCOUNT
ENTERPRISE SOFTWARE PRODUCTS
<S> <C> <C> <C> <C> <C>
SBE5205 SYSTEM BUILDERoem/INTEL-5 PK 638347 50039 8 $249.75 [CONFIDENTIAL [CONFIDENTIAL
TREATMENT TREATMENT
REQUESTED]** REQUESTED]**
CSE5200 COMMERCIAL SERVERoem/INTEL-Single 638347 50031 2 $995.00 [CONFIDENTIAL [CONFIDENTIAL
TREATMENT TREATMENT
REQUESTED]** REQUESTED]**
CSE5300 COMMERCIAL SERVERoem/INTEL-Single 638347 50051 0 $995.00 [CONFIDENTIAL [CONFIDENTIAL
TREATMENT TREATMENT
REQUESTED]** REQUESTED]**
</TABLE>
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
ENTERPRISE SUPPORT PRODUCTS
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
ESP1000 10 INCIDENT CALL PACK 638347 50035 0 $2,995.00 [CONFIDENTIAL [CONFIDENTIAL
TREATMENT TREATMENT
REQUESTED]** REQUESTED]**
ESP2500 25 INCIDENT CALL PACK 638347 50036 7 $7,295.00 [CONFIDENTIAL [CONFIDENTIAL
TREATMENT TREATMENT
REQUESTED]** REQUESTED]**
Sales Goals [CONFIDENTIAL TREATMENT REQUESTED]** Plan for Ingram Micro ECD Products
[CONFIDENTIAL TREATMENT REQUESTED]** for Attained Level of Net Sales Q1 1999
[CONFIDENTIAL for sales above [CONFIDENTIAL
TREATMENT TREATMENT
REQUESTED]** REQUESTED]**
[CONFIDENTIAL for sales above [CONFIDENTIAL
TREATMENT TREATMENT
REQUESTED]** REQUESTED]**
[CONFIDENTIAL for sales above [CONFIDENTIAL
TREATMENT TREATMENT
REQUESTED]** REQUESTED]**
</TABLE>
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
AMENDMENT #1 to the
DISTRIBUTION AGREEMENT
THIS AMENDMENT (the "Amendment") is entered into this 23rd day of April 1999, by
and between INGRAM MICRO INC. ("Ingram") and RED HAT SOFTWARE, INC. ("Vendor").
The parties have agreed to amend their Distribution Agreement ("Agreement"),
effective October 15, 1998.
1. SECTION 4.1, SHIPPING/EXPORT, DELETE AND REPLACE WITH THE FOLLOWING:
Vendor shall ship Product pursuant to Ingram purchase order(s)
("P.O."). Product shall be shipped F.O.B. Vendor's U.S. designated
facility and Ingram shall pay all freight charges. Risk of loss or
damage by agreement of the parties will pass to Ingram upon delivery to
the warehouse specified in Ingram's P.O. Vendor shall ship all Products
in accordance with the instructions in Ingram's Vendor Routing Guide,
attached hereto as Exhibit A. Vendor shall pay Ingram a [CONFIDENTIAL
TREATMENT REQUESTED]** as referenced in Section 6.3. In the event
Vendor ceases [CONFIDENTIAL TREATMENT REQUESTED]** for whatever
reason, Product shall be shipped [CONFIDENTIAL TREATMENT REQUESTED]**
designated U.S. warehouse and [CONFIDENTIAL TREATMENT REQUESTED]**
shall pay all freight charges.
2. SECTION 5.4, PRICE ADJUSTMENTS, REPLACE THE LAST SENTENCE WITH THE
FOLLOWING: Pass thru price protection to Ingram's customers shall
occur only for those customers mutually agreed upon by Vendor and
Ingram.
3. SECTION 5.5, PAYMENT TERMS, DELETE AND REPLACE WITH THE FOLLOWING:
Ingram's payment terms shall be [CONFIDENTIAL TREATMENT REQUESTED]**.
Payment shall be deemed made on the payment postmark date.
4. SECTION 6.2, ADVERTISING, DELETE AND REPLACE WITH THE FOLLOWING:
Vendor agrees to cooperate in Ingram's or Ingram's customers'
advertising and promotion of Product and hereby grants Ingram a
cooperative advertising allowance which will be established by
mutual agreement for such advertising featuring Product and/or Vendor.
Ingram shall submit advertising to Vendor for review and approval
prior to any initial release, and Vendor shall not unreasonably
withhold or delay such approval. Upon receipt of reasonable evidence
of such advertising expenditures, Vendor agrees to credit the amount
thereof against future Ingram purchases.
5. ADD 6.3 AS A NEW SECTION: Vendor shall pay Ingram a [CONFIDENTIAL
TREATMENT REQUESTED]** based on Ingram's net sell through Vendor's
Product. [CONFIDENTIAL TREATMENT REQUESTED]** will be paid quarterly
within sixty (60) days of the close of each fiscal quarter, provided
that Ingram provides timely sell through reports to Vendor. There are
no other applicable [CONFIDENTIAL TREATMENT REQUESTED]** other than
the [CONFIDENTIAL TREATMENT REQUESTED]** stated above. [CONFIDENTIAL
TREATMENT REQUESTED]** must be stated in writing by both parties.
6. SECTION 7. 1, DELETE AND REPLACE WITH THE FOLLOWING: Notwithstanding
anything herein to the contrary, Ingram may return Products throughout
the term within [CONFIDENTIAL TREATMENT REQUESTED]** of the purchase
date which are in their original packaging to Vendor for full credit of
the Products' purchase price. Vendor will consider in good faith on
a case by case basis any Product return requests after this period.
Subject to the provisions of this Section in the event that a Return
Material Authorization (RMA) for the return of product is not issued
within [CONFIDENTIAL TREATMENT REQUESTED]** of the request, Ingram
shall have the right to return any Product(s) to Vendor without an
RMA, and Vendor shall be obligated to accept such return for credit.
[CONFIDENTIAL TREATMENT REQUESTED]** shall pay all freight charges
for Product returns.
7. SECTION 7.3, DELETE AND REPLACE WITH THE FOLLOWING: Vendor shall give
Ingram [CONFIDENTIAL TREATMENT REQUESTED]** advance written notice of
Product discontinuation. Ingram may return all such Product to Vendor
- 1 -
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
for full credit of Product purchase price, provided that Ingram uses
commercially reasonable efforts to return all such Product in its
inventory within [CONFIDENTIAL TREATMENT REQUESTED]** of receipt of
written notice from Vendor of Product discontinuation. Within
[CONFIDENTIAL TREATMENT REQUESTED]** of receipt of written notice of
Product discontinuation, Ingram will provide a report to Vendor of
current Customer inventory levels of such Product for those resellers
that provide inventory reporting to Ingram. Ingram will use
commercially reasonable efforts to return to Vendor such Product from
its customers within [CONFIDENTIAL TREATMENT REQUESTED]** of receipt of
written notice of Product discontinuation. These reports are intended
to give Vendor a realistic expectation of the aforementioned
[CONFIDENTIAL TREATMENT REQUESTED]** returns period. [CONFIDENTIAL
TREATMENT REQUESTED]** shall pay all freight charges for Product
returns.
8. SECTION 7.4(A) DELETE AND REPLACE WITH THE FOLLOWING:
Ingram may return any Product to Vendor that Ingram or its customer
finds defective. Ingram shall return such defective Product to Vendor
no more than once per month. Vendor shall immediately credit Ingram
for the Product purchase price, [CONFIDENTIAL TREATMENT REQUESTED]**.
9. PARAGRAPH 3 OF EXHIBIT G, DELETE AND REPLACE WITH THE FOLLOWING:
Ingram agrees to waive the license fees provided Vendor pays Ingram a
[CONFIDENTIAL TREATMENT REQUESTED]** as referenced in Section 6.3.
This Amendment shall remain in effect for the current term and any renewal term
of the Agreement.
Notwithstanding the foregoing, all other provisions of the Agreement remain
unchanged. The undersigned has read this Amendment, agrees hereto, and is an
authorized representative of its respective party.
<TABLE>
<CAPTION>
<S> <C>
INGRAM MICRO INC. RED HAT SOFTWARE
1600 St. Andrew Place 4201 Research Commons, Suite 100
Santa Ana, California 92705 Research Triangle Park, North Carolina 27709
By: /s/ Donna Grothian By: /s/ Teresa Spangler
Name: DONNA GROTHIAN Name: TERESA SPANGLER
Title: GENERAL MANAGER, SOFTWARE Title: BUSINESS UNIT LEADER
Date: APRIL 27, 1999 Date: APRIL 24, 1999
</TABLE>
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
Exhibit 10.15
RED HAT PRODUCT DISTRIBUTION AGREEMENT
This is an agreement related to the distribution of certain products of
Red Hat Software, Inc. Red Hat Software, Inc., a Delaware corporation ("Red
Hat") and FRANK KASPER & ASSOCIATES, INC., a Minnesota corporation
("Distributor"), enter into this Agreement as of the last date following the
signatures below.
1. DEFINITIONS.
A. "Customers" of Distributor shall include dealers, resellers, value
added resellers, direct resellers and other entities that acquire the Products
from Distributor.
B. "DOA" shall mean Product, or any portion thereof, which fails to
operate properly on initial installation, boot, or use, as applicable.
C. "Documentation" shall mean user manuals, training materials, Product
descriptions and specifications, brochures, technical manuals, license
agreements, supporting materials and other printed information relating to the
Products and included with the Products, whether distributed in print,
electronic, or video format.
D. "Effective Date" shall mean the date on which this Agreement is
signed and dated by a duly authorized representative of each party.
E. "End Users" shall mean the final purchasers or licensees who have
acquired Products for their own use and not for resale, remarketing or
redistribution.
F. "Non-Saleable Products" shall mean any Product that has been
returned to Distributor by its Customers that has had the outside shrink
wrapping or other packaging seal broken; any components of the original package
are missing, damaged or modified; or is otherwise not fit for resale.
G. "Products" shall mean, individually or collectively, the software
licenses, electronic products, the sealed software packages comprised of the
computer programs encoded on media together with manuals, materials and other
contents of the packages associated therewith of Red Hat.
H. "Return Credit" shall mean a credit to Distributor in an amount
equal to the price paid by Distributor for Products less any price protection
credits but not including any early payment, prepayment or other discounts.
I. "Services" means any warranty, maintenance, advertising, marketing
or technical support and any other services performed or to be performed by Red
Hat.
J. "Territory" shall mean worldwide.
<PAGE>
-2-
2. APPOINTMENT AS DISTRIBUTOR.
Red Hat hereby grants to Distributor, and Distributor accepts, the
non-exclusive, non-transferable right and license to distribute Products during
the term of this Agreement within the Territory, together with any updates or
enhancements to the Products and any new releases related to the Products. This
license includes the right to order, possess and distribute the Products to
Customers and to provide the Products to Customers for use on demonstration
units. Red Hat and Distributor acknowledge and agree that the license to use the
Product is solely between Red Hat and the End User and is governed by the terms
of the Red Hat's standard end user license agreement enclosed with the Product.
Distributor will use commercially reasonable efforts to promote distribution of
the Products.
3. PURCHASE ORDERS.
A. Distributor shall issue to Red Hat one or more purchase orders
identifying the Products Distributor desires to purchase from Red Hat. The terms
and conditions of this Agreement shall govern all purchase orders, except that
purchase orders may include other terms and conditions which are consistent with
the terms and conditions of this Agreement, and which are mutually agreed to in
writing by Distributor and Red Hat. Purchase orders will be placed by
Distributor by fax or electronically transferred.
B. If for any reason Red Hat's production is not on schedule, Red Hat
agrees to use its best efforts to allocate inventory to Distributor and make
shipments in proportion to Distributor's percentage of all Red Hat's orders
during the previous [CONFIDENTIAL TREATMENT REQUESTED]** days.
4. ACCEPTANCE OF PRODUCT, SHIPPING
A. Distributor shall, after a reasonable time to inspect each shipment,
such time not to exceed ten days, accept Products (the "Acceptance Date") if the
Products and all necessary Documentation delivered to Distributor are in
accordance with the purchase order. Products shall be shipped FOB origin. Title
and risk of loss or damage to Products shall pass to Distributor at the time the
Products are delivered by Red Hat to common carrier for shipping to Distributor.
Red Hat shall ship Products to Distributor's warehouses anywhere in the world as
specified by Distributor. Distributor shall pay the reasonable costs and
expenses of shipping Products to Distributor.
B. Red Hat and Distributor agree that no title or ownership of the
proprietary rights to any software code is transferred by virtue of this
Agreement notwithstanding the use of terms such as "purchase", "sale" or the
like within this Agreement. Red Hat and third parties retain all ownership
rights and title to any and all software code within the Products.
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
-3-
5. RETURNS.
A. Red Hat agrees to accept return of overstocked Products returned by
Distributor, provided that the quantity of Products returned by Distributor does
not exceed [CONFIDENTIAL TREATMENT REQUESTED]** of the Products purchased by
Distributor during the previous [CONFIDENTIAL TREATMENT REQUESTED]**. Shipments
of Products being returned shall be new, unused and in sealed cartons. Red Hat
shall credit Distributor's account in the amount of the Return Credit.
Distributor shall bear all costs of shipping and risk of loss of those Products
returned under this Section to Red Hat's location.
B. Distributor shall have the right to return to Red Hat for Return
Credit any DOA Product or any Product that is returned to Distributor within
thirty (30) days after the initial delivery date to the End User and that fails
to perform in accordance with Red Hat's Product warranty. Red Hat shall bear all
costs of shipping and risk of loss of DOA and in-warranty Products to Red Hat's
location and back to Distributor or Distributor's Customer.
C. Distributor shall have the right to return for Return Credit,
[CONFIDENTIAL TREATMENT REQUESTED]** all Products that are damaged in transit,
become obsolete or Red Hat discontinues, updates, revises or are removed from
Red Hat's current price list; provided that Distributor uses it best efforts to
return all such Products within [CONFIDENTIAL TREATMENT REQUESTED]** after
Distributor receives written notice from Red Hat that such Products are
obsolete, superseded by a newer version, discontinued or are removed from Red
Hat's price list. Red Hat shall bear all reasonable costs of shipping and risk
of loss of obsolete or outdated Products to Red Hat's location.
D. Distributor shall have the right to return to Red Hat for Return
Credit Non-Saleable Products. Distributor shall bear all costs of shipping and
risk of loss of Non-Saleable Products to Red Hat's location.
E. As a condition precedent to returning Products, Distributor shall
request and Red Hat shall issue a Return Material Authorization Number (RMA)
within 15 days of the Distributor's request. Red Hat shall have no obligation to
accept returns in the absence of a valid RMA.
F. This Section 5 does not apply to any Products purchased by
Distributor prior to April 28, 1999. A good faith effort will be used by
Distributor to return products purchased before April 28, 1999 by Distributor in
accordance with the terms of this Section 5.
6. PRODUCT PRICES.
A. Charges, prices, quantities and discounts and shipping costs, if
any, for Products shall be determined as set forth in Exhibit A of this
Agreement, or as otherwise mutually agreed upon by the parties in writing. Such
charges, prices, quantities, discounts and shipping costs shall not be higher
than those charged to other same class of customers buying in like quantities.
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
-4-
If Red Hat offers a lower price, including but not limited to, sales price,
volume discount, extended terms, advertising, freight cost, or back haul
allowance to any other like customer of the same class, then Red Hat shall
immediately offer that lower price to Distributor, and shall apply such lower
price to Distributor, and shall apply such lower price to Distributor's
orders not yet shipped. Distributor shall be entitled to participate in and
receive credit to reflect the difference in price for all affected inventory
in Distributor's or its resellers inventory on the date of the price decrease.
B. Red Hat shall have the right to increase prices from time to
time, upon written notice to Distributor not less than
[CONFIDENTIAL TREATMENT REQUESTED]** days prior to the effective date of such
increase. All orders placed prior to the effective date of the increase, for
shipment prior to the effective date, shall be invoiced by Red Hat at the
lower price.
C. Red Hat shall have the right to decrease prices from time to time,
upon written notice to Distributor. Red Hat shall grant to Distributor, its
parent, affiliates and subsidiaries and Distributor's Customers a price credit
for the full amount of any Red Hat price decrease on all Products on order, in
transit and in their inventory on the effective date of such price decrease.
Distributor and its Customers shall, after receiving written notice of the
effective date of the price decrease, provide a list of all Products for which
they claim a credit.
7. PAYMENT.
A. Except as otherwise set forth in this Agreement, any undisputed sum
due to Red Hat pursuant to this Agreement shall be payable net [CONFIDENTIAL
TREATMENT REQUESTED]** after the Acceptance Date. Red Hat shall invoice
Distributor no earlier than the applicable shipping date for the Products
covered by such invoice. Any payments more than [CONFIDENTIAL TREATMENT
REQUESTED]** past due shall be subject to a late fee of [CONFIDENTIAL TREATMENT
REQUESTED]** percent per month, or the maximum allowable by law, whichever is
less.
B. Distributor shall be responsible for franchise taxes, sales or use
taxes, and all other taxes, or shall provide Red Hat with an appropriate
exemption certificate.
8. ADVERTISING.
A. Red Hat offers a [CONFIDENTIAL TREATMENT REQUESTED]** advertising
program and may offer additional advertising credits, or other promotional
programs or incentives to Distributor as it offers to its other distributors
or customers. Distributor shall have the right, at Distributor's option, to
participate in such programs.
B. Red Hat shall provide at no charge to Distributor and the Customers
of Distributor, reasonable marketing, support, and advertising materials in
reasonable quantities in connection with the resale of Products as are currently
offered or that may be offered by Red Hat. Red Hat shall bear no costs or
expenses incurred by Distributor related to Distributor's marketing of Products
unless such expenses are approved in advance in writing by Red Hat.
C. Upon request of Distributor, Red Hat shall consider providing
Customized Products for specific customers of Distributor.
9. WARRANTIES/INDEMNIFICATION
A. Subject to the provisions of Section 10., Limitation on Liability,
Red Hat shall defend, hold harmless, and indemnify, including reasonable
attorney's fees, Distributor from and against
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
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RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
-5-
I. any claim that any of the Products infringes upon any
intellectual property interest of any third party; and
II. any claim that any of the Products is not year 2000
compliant, meaning that it is unable to correctly process and exchange
date data with respect to the change from the twentieth to the
twenty-first century.
III. any claim arising out of any negligent action or
inaction, or willful misconduct by Red Hat relating to Red Hat's
responsibilities under this Agreement.
The indemnification obligations set forth in this Section 9.A shall
apply only provided that Distributor provides Red Hat with prompt written notice
of each such claim, and provided that Red Hat shall have complete control of the
defense of such claim and Distributor's reasonable cooperation in its defense.
B. EU WARRANTY. Vendor warrants and represents for Products distributed
to the European Union ("EU") that , that to the best of its knowledge, the
Products will be accepted under all EU directives, regulations and the EU
country's legislation.
C. MADE IN AMERICA CERTIFICATION. Vendor by the execution of this
Agreement certifies that it will not label any of its products as being "Made in
America," "Made in U.S.A.," or with similar wording, unless all components or
elements of such Product are in fact made in the United States of America.
Vendor further agrees to defend, indemnify and hold harmless from and against
any and all claims, demands, liabilities, penalties, damages, judgments or
expenses (including attorney's fees and court costs) arising out of or resulting
in any way from Product that does not conform to the Certification.
D. Distributor shall defend, hold harmless, and indemnify, including
reasonable attorney's fees, Red Hat from and against any claim arising out of
any action or inaction by Distributor with respect to the subject matter of this
Agreement, other than as set forth in Section 9.A., B or C. including but not
limited to liabilities that may result, in whole or in part, from Distributor's
negligence or willful misconduct in the distribution of the Products pursuant to
this Agreement, or for representations or warranties made by Distributor related
to the Products in excess of the warranties of Red Hat, provided that Red Hat
provides notice to Distributor of any all such claims and provides reasonable
assistance to Distributor in the defense of such claims at Distributor's
expense.
10. LIMITATION ON LIABILITY
A. EACH PARTY'S AGGREGATE LIABILITY FOR DAMAGES CLAIMED UNDER THIS
AGREEMENT SHALL BE LIMITED TO [CONFIDENTIAL TREATMENT REQUESTED]** TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL RED HAT BE
LIABLE TO DISTRIBUTOR OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, OR ANY DAMAGES
RESULTING FROM LOSS OF DATA, USE OR PROFITS, OR LOSS OF
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
-6-
CONTRACTS OR BUSINESS OPPORTUNITY, ARISING OUT OF THIS AGREEMENT OR THE USE OF
OR INABILITY TO USE THE SOFTWARE, DOCUMENTATION OR RED HAT PRODUCT OR ARISING
OUT OF RED HAT'S PERFORMANCE OR NON-PERFORMANCE HEREUNDER, WHETHER OR NOT
REASONABLY FORESEEABLE AND EVEN IF RED HAT HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY, ARISING UNDER STATUTE OR OTHERWISE.
B. Nothing in this Section shall restrict either party's liability for
death, personal injury, or other damage not capable of limitation under
applicable law.
11. DISTRIBUTOR REPORTS.
Distributor shall provide to Red Hat monthly sales out reports related
to Distributor's sale of Products, which shall include the following
information: month and year sales activity occurred, internal product number
(assigned by Distributor), written description, Customer name, state and
zip-code of Customers location, unit cost (distributor's cost at quantity 1),
quantity and extended cost (cost times quantity). Distributor shall provide such
reports no later than [CONFIDENTIAL TREATMENT REQUESTED]** after the end of each
month.
12. TRADEMARK USAGE.
A. Red Hat grants to Distributor, and Distributor accepts, a
non-exclusive, non-transferable right and license to use and display the
trademarks of Red Hat associated with the Products (the "Marks"), solely in
conjunction with Distributors efforts to market the Products, subject to and in
accordance with policies and Guidelines established by Red Hat, in its sole
discretion, from time to time. Red Hat's current trademark usage guidelines are
attached hereto as Exhibit B and made a part hereof.
B. Distributor shall not use any of the Marks, in whole or in part, in
its company, corporate, domain or trade name.
C. Distributor shall not alter, cover, modify, delete, obfuscate or
remove any Mark or trademark designator contained in or appearing on or in the
Products or in advertising or promotional material prepared or furnished to
Distributor by Red Hat. Distributor shall not use any Red Hat trade name,
trademark or service mark in any manner other than as expressly authorized in
this Agreement or as otherwise agreed to in writing by Red Hat. Without limiting
the foregoing, Distributor shall not affix any Mark or other Red Hat designation
to any product or service, or use the same, other than on or in connection with
the Red Hat Product. All Red Hat trademarks shall remain in their exact form,
and shall not be translated into any other language by Distributor.
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
-7-
D. Distributor shall not indicate, state or imply that it has, or hold
itself out as having a corporate affiliation with Red Hat or any relationship
with Red Hat other than that set forth in this Agreement. In particular, but
without limitation, Distributor shall not create a web site or adopt a domain
name suggesting in any way that Distributor is a subsidiary or corporate
affiliate of Red Hat.
E. Distributor acknowledges that the Marks are the exclusive property
of Red Hat, and that it will not assert any claim of ownership to the Marks, or
to the goodwill or reputation thereof, by virtue of Distributor's use of the
Marks, or otherwise. All use of the Marks by Distributor under this Agreement
shall inure solely to the benefit of Red Hat. Distributor will not take any
action in derogation of any of the rights of Red Hat in the Marks.
F. Distributor shall not adopt or seek to register Red Hat's trademarks
(including, without limitation, the Marks) or any trademark, trade name, service
mark or domain name with any agency or administrative body anywhere in the world
which is confusingly similar to a Red Hat trademark or any translation thereof,
in any jurisdiction. Distributor further agrees that if it shall have obtained,
or if it obtains in the future, in any jurisdiction, any right, title or
interest in any mark, symbol, phrase or domain name which shall be identical to,
similar to or likely to be confused with any Mark, or any translation thereof,
then Distributor shall have acted or shall act as an agent and for the benefit
of Red Hat for the limited purpose of obtaining and assigning such registration
(and all right, title and interest in and to such mark, symbol, phrase or domain
name) to Red Hat. Distributor further agrees to execute any and all instruments
deemed by Red Hat to be necessary to transfer such registrations or such right,
title or interest to Red Hat. Distributor shall not challenge, or assist others
in challenging, the validity or ownership of any Marks.
G. If Distributor becomes aware of any infringement, actual or
suspected, or any other unauthorized use of the Marks, it shall promptly give
notice to Red Hat in writing specifying the particulars of the unauthorized use.
Red Hat, at its sole discretion, shall take whatever action it deems advisable
in connection with the unauthorized use. Red Hat shall notify Distributor of
whatever action is taken, or if none is taken. If Red Hat decides to take action
of any kind against the unauthorized use, Red Hat shall have sole control of the
conduct of any such action. Red Hat shall bear the entire cost and expense
associated with the conduct of any such action, and any recovery or compensation
that may be awarded as a result of such action, including but not limited to any
settlement that may be reached, shall belong to Red Hat. Distributor, if
requested by Red Hat, shall cooperate fully with Red Hat, at Red Hat's expense,
in the conduct of any such action. Such cooperation shall not entitle
Distributor to any claim for recovery or compensation in respect thereof, and
all such recovery or compensation shall belong solely to Red Hat.
13. CONFIDENTIALITY.
Each party acknowledges that in the course of performance of its
obligations pursuant to this Agreement, it may obtain certain information
specifically marked as confidential or proprietary. Each party hereby agrees
that all such information communicated to it by the other
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RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
-8-
party, its parent, affiliates, subsidiaries, or Customers, whether before or
after the Effective Date, shall be and was received in strict confidence, shall
be used only for purposes of this Agreement, and shall not be disclosed without
the prior written consent of the other party, except as may be necessary by
reason of legal, accounting or regulatory requirements beyond either party's
reasonable control. The provisions of this Section shall survive termination or
expiration of this Agreement for any reason for a period of two (2) years after
said termination or expiration.
14. EXPORT RESTRICTIONS.
Distributor shall comply with all applicable laws, regulations and
legal requirements, including applicable United States export laws, regulations,
and legal requirements. Distributor acknowledges that the laws and regulations
of the United States may restrict the export and re-export of certain
commodities and technical data, including software, of United States origin.
Distributor agrees that it will not re-export the Software or any other
technical data received from Red Hat, or the direct product thereof, except as
permitted by the laws and regulations of the United States and the laws and
regulations of the jurisdiction in which Distributor obtained the Software or
other technical data. Red Hat agrees it will inform Distributor which Product is
not legally exportable, or clearly label such Product.
15. TERM AND TERMINATION.
A. The initial term of this Agreement shall be one year from the
Effective Date. Any renewal of this Agreement must be in a writing, signed by
both parties in order to be effective. Either party may terminate this
Agreement, with or without cause, upon giving the other party thirty (30) days
prior written notice. In the event that either party materially or repeatedly
defaults in the performance of any of its duties or obligations set forth in
this Agreement, and such default is not substantially cured within thirty (30)
days after written notice is given to the defaulting party specifying the
default, then the party not in default may, by giving written notice thereof to
the defaulting party, terminate this Agreement or the applicable purchase order
relating to such default as of the date specified in such notice of termination.
B. Either party may immediately terminate this Agreement and any
purchase orders by giving written notice to the other party in the event of (i)
the liquidation or insolvency of the other party, (ii) the appointment of a
receiver or similar officer for the other party, (iii) an assignment by the
other party for the benefit of all or substantially all of its creditors, (iv)
entry by the other party into an agreement for the composition, extension, or
readjustment of all or substantially all of its obligations, or (v) the filing
of a petition in bankruptcy by or against a party under any bankruptcy or
debtors' law for its relief or reorganization which is not dismissed within
ninety (90) days.
C. Termination or expiration of this Agreement shall not affect Red
Hat's right to be paid for undisputed invoices for Products already shipped and
accepted by Distributor or Distributor's rights to any credits or payments owed
or accrued to the date of termination or expiration. Distributor's rights to
credits upon termination or expiration shall include credits
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
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RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
-9-
against which Distributor would, but for termination or expiration, be required
under this Agreement to apply to future purchases.
D. Upon termination or expiration of this Agreement, Distributor shall
discontinue holding itself out as a distributor of the Products.
E. Upon the effective date of termination or expiration of this
Agreement for any reason, Red Hat agrees to repurchase, at Distributor's
costs, all Products in Distributor's inventory and Products which are
returned to Distributor by its Customers. Distributor agrees to use its best
efforts to return Products received from its customers within sixty (60) days
following the effective date of termination or expiration.
16. MISCELLANEOUS.
A. This Agreement (including the Attachments and Schedules) constitutes
the complete and exclusive understanding and agreement of the parties, and
supersedes all prior representations, warranties, agreements, negotiations,
discussions and communications, written or oral, between Distributor and Red
Hat, relating to the subject matter hereof. This Agreement may not be modified
or amended except in a writing executed by the duly authorized representatives
of the parties.
B. Any notice under this Agreement shall be in English, in writing, and
shall be deemed to be given upon receipt. Notices to Red Hat shall be delivered
to Counsel, Red Hat Software, Inc., 2600 Meridian Parkway, Durham, NC 27713.
Notices to Distributor shall be delivered to Frank Kasper, Frank Kasper &
Associates, Inc. at 7351 Washington Avenue, South Edina, Minnesota 55439.
C. Sections 5, 6, 7, 9, 10, 13, 15 and 16 shall survive the expiration
or termination of this Agreement.
D. This Agreement shall be governed by and construed in accordance with
the laws of the state of the party against whom suit is commenced, without
regard to conflict of laws principles. The sole jurisdiction and venue for
actions arising out of the subject matter of this Agreement shall be the state
and federal courts of such state of the party against whom suit is commenced and
each of the parties to this Agreement hereby irrevocably submits to the personal
jurisdiction of such courts.
E. Neither party shall be liable for its failure to perform any of its
obligations hereunder, including, but not limited to, delivery obligations,
during any period in which such failure of performance is caused by an act of
God; act of any federal, state, or local governmental authority; fire or flood;
strike or labor unrest; degradation of telecommunications service; degradation
of computer services not under the direct control of such party; or unusually
severe weather conditions. Delays in delivery due to events beyond either
party's reasonable control shall automatically extend the delivery and payment
date for a period equal to the duration of such events.
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RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
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F. The parties acknowledge that the United Nations Convention on
Contracts for the International Sale of Goods is specifically excluded from
application to this Agreement.
G. If for any reason a court of competent jurisdiction finds any
provision of this Agreement, or portion thereof, to be unenforceable, that
provision of the Agreement shall be enforced to the maximum extent permissible
so as to effect the intent of the parties, and the remainder of this Agreement
shall continue in full force and effect.
H. Headings in this Agreement are used for convenience of reference
only and shall not affect the interpretation of the provisions of this
Agreement.
I. Failure or delay on the part of either party to exercise any right,
remedy, power or privilege hereunder will not operate as a waiver. In order to
be effective, a waiver must be in writing and signed by the party granting such
waiver.
J. No provision of this Agreement is to be interpreted for or against
either party on the grounds that one party or the other, or their legal counsel,
drafted such provision.
K. In the event that either party is merged with or consolidated into
another entity, or in the event that substantially all of the assets of either
party are sold or otherwise transferred to any other entity, the provisions of
this Agreement will be binding upon, and inure to the benefit of, such other
entity.
L. Nothing in this Agreement shall be construed to make the parties
partners, joint venturers, representatives, or agents of each other, nor shall
either party so hold itself out.
To show their assent, the duly authorized representatives of the
parties have signed this Agreement.
RED HAT SOFTWARE, INC. ("Red Hat")
/s/ Teresa Spangler
---------------------------------
Signature
Teresa Spangler
---------------------------------
Name
Business Unit Leader
---------------------------------
Title
April 30, 1999
---------------------------------
Date
FRANK KASPER & ASSOCIATES, INC,
/s/ Frank Kasper
---------------------------------
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RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
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Signature
Frank Kasper
---------------------------------
Name
President
---------------------------------
Title
April 30, 1999
---------------------------------
Date
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
Exhibit
RED HAT SOFTWARE, INC.
DISTRIBUTOR PRICE LIST
EFFECTIVE APRIL 26, 1999
<TABLE>
<CAPTION>
CLASS A CLASS B CLASS C
<S> <C> <C> <C> <C> <C>
Average Monthly Volume* [CONFIDENTIAL TREATMENT REQUESTED]**
<CAPTION>
PRODUCT CODE DESCRIPTION UPC CLASS A CLASS B CLASS C
<S> <C> <C> <C> <C> <C>
RH6000 Official Red Hat Linux 6.0/Intel 638347-50052-7 ** ** **
ARH6000 Official Red Hat Linux 6.0/Alpha 638347-50055-8 ** ** **
SRH6000 Official Red Hat Linux 6.0/SPARC 638347-50056-5 ** ** **
RH6300 Red Hat Linux 6.0 EXTRA 638347-50067-1 ** ** **
PT2000 PowerTools for Red Hat Linux 6.0 638347-50066-4 ** ** **
Red Hat Linux 6.0 E-Commerce
WB2100 Server June 28, 1999
EX1000 Extreme Linux 638347-99999-4 ** ** **
B2005 Maximum RPM 752063-11054-6 ** ** **
System Builder Edition Red Hat
SBE6005 Linux 6.0 (5-pack) 63847-50072-5 ** ** **
ESP1000 10 Incident Support Pack 638347-50035-0 ** ** **
ESP2500 25 Incident Support Pack 638347-50036-7 ** ** **
ESP3000G Gold Annual Support Subscription 638347-50037-4 ** ** **
Platinum Annual Support
ESP3000P Subscription 638347-50038-1 ** ** **
</TABLE>
*Average Monthly Volume defined as sales of Red Hat products to distributor's
customers
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
RED HAT SOFTWARE, INC.
DISTRIBUTOR PRICE LIST
EFFECTIVE APRIL 26, 1999
<TABLE>
<CAPTION>
FOR CANADIAN RETAILERS/ RESELLERS ONLY
FOR SALE WITHIN CANADA CLASS A CLASS B CLASS C
<S> <C> <C> <C> <C> <C>
Average Monthly Volume* [CONFIDENTIAL TREATMENT REQUESTED]**
<CAPTION>
PRODUCT CODE DESCRIPTION UPC CLASS A CLASS B CLASS C
<S> <C> <C> <C> <C> <C>
CARH6000 Official Red Hat Linux 6.0/Intel 638347-50079-4 ** ** **
CAARH6000 Official Red Hat Linux 6.0/Alpha ** ** **
CASRH6000 Official Red Hat Linux 6.0/SPARC ** ** **
CARH6300 Red Hat Linux 6.0 EXTRA ** ** **
CAPT2000 PowerTools for Red Hat Linux 6.0 ** ** **
Red hat Linux 6.0 E-Commerce
CAWB2100 Server
EX1000* Extreme Linux 638347-99999-4 ** ** **
B2005* Maximum RPM 752063-11054-6 ** ** **
CASBE6005 System Builder Edition Red Hat
Linux 6.0 (5-pack)
CAESP1000 10 Incident Support Pack
CAESP2500 25 Incident Support Pack
ESP3000G* Gold Annual Support Subscription 638347-50037-4 ** ** **
ESP3000P* Platinum Annual Support
Subscription 638347-50038-1 ** ** **
</TABLE>
* Canadian pricing does not apply to EX1000, B2005, ESP3000G, and ESP3000P.
- -------------
**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
RED HAT SOFTWARE, INC.
DISTRIBUTOR PRICE LIST
EFFECTIVE APRIL 26, 1999
FOR COLLEGE/UNIVERSITY RETAILERS ONLY
<TABLE>
<CAPTION>
PRODUCT CODE DESCRIPTION UPC CLASS A
<S> <C> <C> <C>
EDRH6000 Official Red Hat Linux 6.0/Intel 638347-50080-0 **
EDARH6000 Official Red Hat Linux 6.0/Alpha **
EDSRH6000 Official Red Hat Linux 6.0/SPARC **
EDRH6300 Red Hat Linux 6.0 EXTRA **
EDPT2000 PowerTools for Red Hat Linux 6.0 **
EDWB2100 Red Hat Linux 6.0 E-Commerce Server **
</TABLE>
Incident Support Packages and Support Subscriptions available.
Please call for prices.
- -------------
**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
Exhibit 10.16
SOFTWARE DISTRIBUTION AGREEMENT
BETWEEN
TECH DATA PRODUCT MANAGEMENT, INC.
AND
RED HAT SOFTWARE, INC.
<PAGE>
SOFTWARE DISTRIBUTION AGREEMENT
THIS AGREEMENT, DATED AS OF THIS 29TH DAY OF APRIL, 1999, IS BETWEEN TECH DATA
PRODUCT MANAGEMENT, INC., A FLORIDA CORPORATION ("TECH DATA"), WITH ITS
PRINCIPAL CORPORATE ADDRESS AT 5350 TECH DATA DRIVE, CLEARWATER, FLORIDA 33760
AND RED HAT SOFTWARE, INC., A DELAWARE CORPORATION ("RED HAT" OR "VENDOR"), WITH
ITS PRINCIPAL CORPORATE ADDRESS AT 5350 TECH DATA DRIVE, CLEARWATER, FLORIDA
33760 AND RED HAT SOFTWARE, INC., A DELAWARE CORPORATION ("RED HAT" OR
"VENDOR"), WITH ITS PRINCIPAL CORPORATE ADDRESS AT: 2600 MERIDIAN PARKWAY,
DURHAM, NC 27713.
RECITALS
A. Tech Data desires to purchase certain Products from Red Hat from
time to time and Red Hat desires to sell certain Products to Tech Data in
accordance with the terms and conditions set forth in this Agreement.
B. Red Hat desires to appoint Tech Data as its non-exclusive
distributor to market Products within the Territory (as hereinafter defined) and
Tech Data accepts such appointment on these terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the Recitals, the mutual covenants
contained in this Agreement and other good and valuable consideration, Tech Data
and Red Hat hereby agree as follows:
ARTICLE I
DEFINITIONS, APPOINTMENT AND TERM OF AGREEMENT
1.1 DEFINITIONS. The following definitions shall apply to this Agreement.
(a) "Customers" of Tech Data shall include dealers, resellers, value
added resellers, direct resellers and other entities that acquire the
Products from Tech Data.
(b) "DOA" shall mean Product, or any portion thereof, which fails to
operate properly on initial installation, boot, or use, as applicable.
(c) "Documentation" shall mean user manuals, training materials,
Product descriptions and specifications, brochures, technical manuals,
license agreements,
Tech Data /s/ SML Red Hat /s/ TS
Page 2
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
supporting materials and other information relating to the Products and
included with the Products, whether distributed in print, electronic,
or video format.
(d) "Effective Date" shall mean the date on which this Agreement is
signed and dated by a duly authorized representative of Tech Data.
(e) "End Users" shall mean the final purchasers or licensees who have
acquired Products for their own use and not for resale, remarketing or
redistribution.
(f) "Non-Saleable Products" shall mean any Product that has been
returned to Tech Data by its Customers that has had the outside shrink
wrapping or other packaging seal broken; any components of the original
package are missing, damaged or modified; or is otherwise not fit for
resale.
(g) "Products" shall mean, individually or collectively, the software
licenses, electronic products, the sealed software packages comprised
of the computer programs encoded on media together with manuals,
materials and other contents of the packages associated therewith, if
any, as more fully described in Schedule 1.1(g) attached hereto.
(h) "Return Credit" shall mean a credit to Tech Data in an amount equal
to the price paid by Tech Data for Products less any price protection
credits but not including any early payment, prepayment or other
discounts.
(i) "Services" means any warrant, maintenance, advertising, marketing
or technical support and any other services performed or to be
performed by Red Hat.
(j) "Territory" shall mean the United States, its territories and
possessions, and Canada.
1.2 TERM OF AGREEMENT. The term of this Agreement shall commence on the
Effective Date and, unless terminated by either party as set forth in
this Agreement, shall remain in full force and effect for a term of
one (1) year, and will be automatically renewed for successive
one (1) year terms unless prior written notification of termination
or non-renewal is delivered by one of the parties in accordance with
the notice Agreement.
Tech Data /s/ SML Red Hat /s/ TS
Page 3
- --------------
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
1.3 APPOINTMENT AS DISTRIBUTOR. Red Hat hereby grants to Tech Data the
non-exclusive right and license to distribute Products during the term
of this Agreement within the Territory, together with any updates or
enhancements to the Products and any new releases related to the
Products. This license includes the right to order, possess and
distribute the Products. This license includes the right to order,
possess and distribute the Products to Customers and to provide the
Products to Customers for use on demonstration units. Red Hat and Tech
Data acknowledge and agree that the license to use the Product is
solely between Red Hat and the End User and is governed by the terms of
the Vendor's standard use license enclosed with the Product. This
Agreement does not grant Red Hat or Tech Data an exclusive right to
purchase or sell Products and shall not prevent either party from
developing or acquiring other vendors or customers or competing
Products. Tech Data will use commercially reasonable efforts to promote
distribution of the Products. Red Hat agrees that Tech Data may obtain
Products in accordance with this Agreement for the benefit of its
parent, affiliates and subsidiaries. Said parent, affiliates and
subsidiaries of Tech Data shall be entitled to order Products directly
from Red Hat pursuant to this Agreement.
ARTICLE II. PURCHASE ORDERS
2.1 ISSUANCE AND ACCEPTANCE OF PURCHASE ORDER.
(a) This Agreement shall not obligate Tech Data to purchase any
Products or Services except as specifically set forth in a written
purchase order.
(b) Tech Data may issue to Red Hat one or more purchase orders
identifying the Products Tech Data desires to purchase from Red Hat.
The terms and conditions of this Agreement shall govern all purchase
orders, except that purchase orders may include other terms and
conditions which are consistent with the terms and conditions of this
Agreement, or which are mutually agreed to in writing by Tech Data and
Red Hat. Purchase orders will be placed by Tech Data by fax or
electronically transferred.
(c) A purchase order shall be deemed accepted by Red Hat unless Red Hat
notifies Tech Data in writing within five (5) business days of the date
of the purchase order that Red Hat does not accept the purchase order.
2.2 PURCHASE ORDER ALTERATIONS OR CANCELLATIONS. Up to five (5) calendar
days prior to shipment of Products, Red Hat shall accept alterations to
a purchase order in order to: (i) change a location for delivery, (ii)
modify the quantity or type of Products
Tech Data /s/ SML Red Hat /s/ TS
Page 4
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
to be delivered or (iii) correct typographical or clerical errors.
Red Hat shall accept the cancellation of purchase order up to
[CONFIDENTIAL TREATMENT REQUESTED]** prior to shipment of Products.
2.3 EVALUATION OR DEMONSTRATION PURCHASE ORDERS. Red Hat shall provide to
Tech Data a reasonable number of demonstration or evaluation Products
at no charge.
2.4 PRODUCT SHORTAGES. If for any reason Red Hat's production is not on
schedule, Red Hat may allocate available inventory to Tech Data and
make shipments based upon a fair and reasonable percentage allocation
among Red Hat's customers. Such allocations shall not impact the
[CONFIDENTIAL TREATMENT REQUESTED]** which were mutually agreed upon
in writing if Tech Data has scheduled orders which Red Hat cannot
fulfill and Tech Data has already reached
[CONFIDENTIAL TREATMENT REQUESTED]** or greater of the required
performance goal.
2.5 PROOF OF DELIVERY ("POD"). Vendor shall provide to Tech Data, at no
charge, a hard copy Proof of Delivery for any drop shipment requested
by Tech Data. The POD shall be faxed to Tech Data within [CONFIDENTIAL
TREATMENT REQUESTED]** of the initial request. If the POD is not
received within the specified time, the invoice will be considered
disputed and no payment shall be made to vendor on that invoice.
ARTICLE III. DELIVERY AND
ACCEPTANCE OF PRODUCTS
3.1 ACCEPTANCE OF PRODUCTS. Tech Data shall, after a reasonable time to
inspect each shipment, accept Products (the "Acceptance Date") if the
Products and all necessary documentation delivered to Tech Data are in
accordance with the purchase order. Any products not ordered or not
otherwise in accordance with the purchase order. Any Products not
ordered or not otherwise in accordance with the purchase order (e.g.
mis-shipments, overshipments) may be returned to Red Hat's expense
(including reasonable costs of shipment or storage). Red Hat shall
refund to Tech Data within [CONFIDENTIAL TREATMENT REQUESTED]**
following notice thereof, all monies paid in respect to such rejected
Products. Tech Data shall not be required to accept partial shipment
unless Tech Data agrees prior to shipment.
3.2 TITLE AND RISK OF LOSS [CONFIDENTIAL TREATMENT REQUESTED]** Title
and risk of loss or damage to Products shall pass to Tech Data at
the time the Products are [CONFIDENTIAL TREATMENT REQUESTED]** Red
Hat and Tech Data agree that no title or ownership of the
proprietary rights to any software code is transferred by virtue of
this Agreement notwithstanding the use of terms such as "purchase,"
"sale" or the like within this Agreement. Red Hat retains all
ownership rights and title to any software code within the Products.
3.3 TRANSPORTATION OF PRODUCTS. Red Hat shall deliver the Products
clearly marked on the Products' package with product description and
machine readable bar code (employing UPC or other industry standard
bar code) to Tech Data at the location shown and on the delivery
date set forth in the applicable purchase order or as otherwise
agreed upon by the parties. Charges for transportation of the
Products shall be paid by [CONFIDENTIAL TREATMENT REQUESTED]** Red
Hat shall use only those common carriers preapproved by Tech Data or
listed in Tech Data's published routing instructions, unless prior
written approval of Tech Data is received.
Tech Data /s/ SML Red Hat /s/ TS
Page 5
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
ARTICLE IV. RETURNS
4.1 INVENTORY ADJUSTMENT. Red Hat and Tech Data will work together to
maintain reasonable inventory levels. Notwithstanding, Red Hat agrees
to accept return of overstocked Products [CONFIDENTIAL TREATMENT
REQUESTED]**. Shipments of Products being returned shall be new, unused
and in sealed cartons. Vendor shall credit Tech Data's account in the
amount of the Return Credit. Tech Data shall bear all costs of shipping
and risk of loss of those Products returned under this Section 4.1 to
Red Hat's location.
4.2 DEFECTIVE PRODUCTS/DEAD ON ARRIVAL (DOA). Tech Data shall have the
right to return to Red Hat for Return Credit any DOA Product or any
Product that fails to perform in accordance with Red Hat's Product
warranty that is returned to Tech Data within thirty (30) days after
Tech Data receives the RMA. Red Hat shall bear all costs of shipping
and risk of loss of DOA and in-warranty Products to Red Hat's location
and back to Tech Data or Tech Data's Customer.
4.3 OBSOLETE OR OUTDATED PRODUCT. Tech Data shall have the right to return
for Return Credit [CONFIDENTIAL TREATMENT REQUESTED]** all Products
that become obsolete or Red Hat continues, updates, revises or are
removed from Red Hat's current price list. Tech Data is to return all
such Products in its inventory within [CONFIDENTIAL TREATMENT
REQUESTED]** after Tech Data receives written notice from Red Hat that
such Products are obsolete, superseded by a newer version, discontinued
or are removed from Red Hat's price list. Within [CONFIDENTIAL
TREATMENT REQUESTED]** of Tech Data's receipt of written notice, Tech
Data will use best efforts to provide Red Hat with reports indicating
current Customer inventory levels. These reports are intended to give
Red Hat a realistic expectation of the Customer returns that Red Hat
will be expected to accept following the expiration of the
aforementioned [CONFIDENTIAL TREATMENT REQUESTED]** return period.
[CONFIDENTIAL TREATMENT REQUESTED]** shall bear all costs of ground
shipping and risk of loss of Obsolete or Outdated Products to Red
Hat's location.
4.4 NON-SALEABLE. Tech Data shall have the right to return to Red Hat for
Return Credit Non-Saleable Products. [CONFIDENTIAL TREATMENT
REQUESTED]** shall bear all costs of shipping and risk of loss of
Non-Saleable Products to Red Hat's location.
Tech Data /s/ SML Red Hat /s/ TS
Page 6
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
4.5 CONDITION PRECEDENT TO RETURNS. As a condition precedent to returning
Products, Tech Data shall request and Red Hat shall issue a Return
Material Authorization Number (RMA) in accordance with and subject to
Section 8.9 of this Agreement.
ARTICLE V. PAYMENT TO RED HAT
5.1 CHARGES, PRICES AND FEES FOR PRODUCTS. Charges, prices, quantities and
discounts, if any, for Products shall be determined as set forth in
Schedule 1.1(g), or as otherwise mutually agreed upon by the parties in
writing, and may be confirmed at the time order. In no event shall
charges exceed Red Hat's then current established charges. Tech Data
shall not be bound by any of Red Hat's suggested prices.
5.2 PAYMENT. Except as otherwise set forth in this Agreement, any
undisputed sum due to Red Hat pursuant to this Agreement shall be
payable as follows: [CONFIDENTIAL TREATMENT REQUESTED]** after the
invoice receipt. Red Hat shall invoice Tech Data no earlier than the
applicable shipping date for the Products covered by such invoice.
Products which are shipped from outside the United States, shall not
be invoiced to Tech Data prior to the Products being placed on a
common carrier within the United States for final delivery to Tech
Data. The due date for payment shall be extended during any time the
parties have a bona fide dispute concerning such payment.
Notwithstanding anything herein to the contrary, for the inital
order only, payment shall be [CONFIDENTIAL TREATMENT REQUESTED]**
and Tech Data may return [CONFIDENTIAL TREATMENT REQUESTED]** of the
Products delivered under the initial order for Return Credit.
5.3 INVOICES. A "correct" invoice shall contain (i) Red Hat's name and
invoice date, (ii) a reference to the purchase order or other
authorizing document, (iii) separate descriptions, unit prices and
quantities of the Products actually delivered, (iv) credits (if
applicable), (v) shipping charges (if applicable) (vi) name (where
applicable), title, phone number and complete mailing address as to
where payment is to be sent, and (vii) other substantiating
documentation or information as may reasonably be required by Tech Data
from time to time. Notwithstanding any pre-printed terms or conditions
on Red Hat's invoices, the terms and conditions of this Agreement shall
apply to and govern all invoices issued by Red Hat hereunder, except
that invoices may include other terms and conditions which are
consistent with the terms and conditions of this Agreement, or which
are mutually agreed to in writing by Tech Data and Red Hat.
Tech Data /s/ SML Red Hat /s/ TS
Page 7
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
5.4 TAXES. Tech Data shall be responsible for franchise taxes, sales or use
taxes or shall provide Red Hat with an appropriate exemption
certificate. [CONFIDENTIAL TREATMENT REQUESTED]** shall be
responsible for all other taxes, assessments, permits and fees,
however designated, which are levied upon this Agreement or the
Products, except for taxes based upon [CONFIDENTIAL TREATMENT
REQUESTED]** No taxes of any type shall be added to invoices without
the prior written approval of Tech Data before shipping.
5.5 [CONFIDENTIAL TREATMENT REQUESTED]** PRICING AND TERMS. Red Hat
[CONFIDENTIAL TREATMENT REQUESTED]**.
5.6 PRICE ADJUSTMENTS.
(a) PRICE INCREASES. Red Hat shall have the right to increase prices
from time to time, upon written notice to Tech Data not less than
[CONFIDENTIAL TREATMENT REQUESTED]** to the effective date of such
increase. All orders placed prior to the effective date of the
increase, for shipment prior to the effective date, shall be
invoiced by Red Hat at the lower price.
(b) PRICE DECREASES. Red Hat shall have the right to decrease prices
from time to time, upon written notice to Tech Data. Red Hat shall
grant to Tech Data, its parent, affiliates and subsidiaries and Tech
Data's Customers a price credit for [CONFIDENTIAL TREATMENT
REQUESTED]** of any Red Hat price decrease or all products on order,
in transit and in their inventory on the effective date of such
price decrease. Tech Data and its Customers shall, after receiving
written notice of the effective date of the price decrease, provide
a list of all Products for which they claim a credit. Red Hat shall
have the right to a reasonable audit at Red Hat's expense.
5.7 ADVERTISING.
(a) MARKET DEVELOPMENT FUNDS. Red Hat may offer advertising credits, or
other promotional programs or incentives to Tech Data as it offers to
its other distributors or customers. Tech Data shall have the right, at
Tech Data's option, to participate in such programs.
(b) ADVERTISING SUPPORT. Red Hat shall provide [CONFIDENTIAL TREATMENT
REQUESTED]** to Tech Data and the Customers of Tech Data, reasonable
marketing support, and advertising materials in limited quantities in
connection with the resale of Products as are currently offered or
that may be offered by Red Hat. Tech Data reserves the right to charge
Red Hat for advertising, marketing and training services which are
preapproved by the Red Hat.
(c) LAUNCH FUNDS. Prior to receipt of the initial purchase order, Red
Hat shall pay Tech Data for all launch funds expenditures to which Red
Hat and Tech Data have agreed.
(d) [CONFIDENTIAL TREATMENT REQUESTED]**.
ARTICLE VI. WARRANTIES,
INDEMNITIES AND OTHER OBLIGATIONS OF RED HAT
6.1 WARRANTY. Red Hat hereby represents and warrants that Red Hat has
all right, title, ownership interest and marketing rights necessary
to provide the Products to Tech Data. Red Hat further represents and
warrants that it has not entered into any agreements or commitments
which are inconsistent with or in conflict with the rights granted
to Tech Data in this Agreement; the Products are new and shall be
free and clear of all liens and encumbrances; Tech Data and its
Customers and End Users shall be entitled to use the Products
without disturbance; the Products meet all applicable FCC
requirements; the Products do and will conform to all codes, laws or
regulations; to the best of Red Hat's knowledge the Products
have the ability to accurately recognize and process date data
related to the 20th and 21st centuries and leap year, without error or
interruption (are Year 2000 compliant); and the Products conform in
all respects to the Product warranties. Red Hat agrees that Tech Data
shall be entitled to pass through to Customers of Tech Data and End
Users of the Products all Product warranties granted by Red Hat.
Tech Data shall have no authority to alter or extend any of the
warranties of Red Hat expressly contained or referred to in this
Agreement without prior approval of Red Hat. Red Hat has made
express warranties in this Agreement and in Documentation,
promotional and advertising materials.
Tech Data /s/ SML Red Hat /s/ TS
Page 8
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RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
EXCEPT AS SET FORTH HEREIN OR THEREIN, RED HAT DISCLAIMS ALL
WARRANTIES WITH REGARD TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION,
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. THIS SECTION SHALL SURVIVE TERMINATION OR
EXPIRATION OF THIS AGREEMENT.
6.2 PROPRIETARY RIGHTS Indemnification. Red Hat hereby
represents and warrants that the Products and the sale and use of
the Products do not infringe on any copyright, patent, trademark,
trade secret, or other proprietary or intellectual property right of
any third party, and that there are no suits or proceedings pending
or threatened alleging any such infringement Red Hat shall
indemnify and hold Tech Data, Tech Data's parent, affiliates and
subsidiaries and their respective officers, directors, employees
and agents harmless from and against any and all actions, claims,
losses, damages, liabilities, awards, costs and expenses, which they
or any of them incur or become obligated to pay resulting from or
arising out of any breach or claimed breach of the foregoing
warranty. Tech Data shall, as soon as reasonably possible, inform
Red Hat of any such suit or proceeding filed against Tech Data and
shall have the right, but not the obligation, to participate in the
defense of any such suit or proceeding at Tech Data's expense. Tech
Data will provide its reasonable assistance in the defense of any
claim, suit or proceeding, at Red Hat's expense. Red Hat shall, at
its option and expense, either (i) procure for Tech Data, its
Customers and End Users the right to continue to use the Product as
set forth in this Agreement, or (ii) replace, to the extent Products
are available, or modify the Product to make its use non-infringing
while being capable of performing the same function without
degradation of performance. If neither of the foregoing alternatives
(i) or (ii) is reasonably available, Red Hat shall accept a return
of the Products from Tech Data, at Red Hat's sole loss and expense,
and shall refund to Tech Data the full amount of the price paid by
Tech Data for said returned Products, less any price protection
credits, but not including any early payment or prepayment discounts.
Red Hat shall have no liability under this Section 6.2 for any
infringement based on the use of any Product, if the Product is used
in a manner or with equipment for which it was not reasonably
intended. Red Hat's obligations under this Section 6.2 shall survive
termination or expiration of this Agreement.
6.3 INDEMNIFICATION.
(a) VENDOR. Red Hat shall be solely responsible for the design,
development, supply, production and performance of the Products. Red
Hat agrees to indemnify and hold Tech Data, its parent, affiliates
and subsidiaries and their officers, directors and employees
harmless from and against any and all claims, damages, costs,
expenses (including, but not limited to, reasonable attorney's fees
and costs) or liabilities that may result, in whole or in part, from
any warranty or Product liability claim, or any claim for
infringement, or for claims for violation of any of the warranties
contained in this Agreement, or for claims that the Products are
Year 2000 compliant provided that Tech Data provides notice to Red Hat
of any and all such claims and provides reasonable assistance to Red
Hat in the defense of such claims at Red Hat's expense.
(b) TECH DATA. Tech Data agrees to indemnify and hold Red Hat, its
officers, directors and employees harmless from and against any and
all claims, damages, costs, expenses (including, but not limited,
reasonable attorney's fees and costs) or liabilities that may
result, in whole or in part from any warranty or Product liability
claim, or any claim for infringement, or for claims for violation of
any of the warranties made by Tech Data related to the Products in
excess of the warranties of Red Hat provided that Red Hat provides
notice to Tech Data of any all such claims and provides reasonable
assistance to Tech Data in the defense of such claims at Tech Data's
expense.
6.4 INSURANCE.
(a) The parties shall be responsible or providing Worker's Compensation
insurance in the statutory amounts required by the applicable state
laws.
(b) Without in any way limiting Red Hat's indemnification obligation
as set forth in this Agreement, Red Hat shall maintain Commercial
General Liability or Comprehensive General Liability Insurance in such
amounts as is reasonable and standard for the industry. Either policy
form should contain the following coverages: Personal and
Advertising Injury, Broad Form Property Damage, Products and
Completed Operations, Contractual Liability, employees as Insured
and Fire Legal Liability.
(c) Red Hat will provide evidence of the existence of insurance
coverages referred to in this Section 6.4 by certificates of
insurance which should also provide for at least thirty (30) days
notice of cancellation, non-renewal or material change of coverage
to Tech Data. The certificates of insurance shall name Tech Data
Product Management, Inc., its parent, affiliates and subsidiaries as
Additional Insureds for the limited purpose of claims arising
pursuant to this Agreement.
6.5 LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER
PURSUANT TO THIS AGREEMENT FOR AMOUNTS REPRESENTING INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF THE OTHER PARTY
ARISING FROM THE
Tech Data /s/ SML Red Hat /s/ TS
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RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
PERFORMANCE OR BREACH OF ANY TERMS OF THIS AGREEMENT.
6.6 ECCN/EXPORT. Red Hat agrees to provide Tech Data, upon signing this
Agreement and at any time thereafter that Red Hat modifies or adds
Products distributed or to be distributable by Tech Data, with the
Export Control Classification Number (ECCN) for each of Red Hat's
Products, and information as to whether or not any of such Products are
classified under the U.S. Munitions List.
6.7 This section was intentionally deleted.
6.8 This section was intentionally deleted.
6.9 TECH DATA REPORTS. Tech Data shall, if requested, render [CONFIDENTIAL
TREATMENT REQUESTED]** sales out reports on Tech Data's BBS system.
Information provided will include: month and year sales activity
occurred, internal product number (assigned by Tech Data), written
description, Customer name, state and zip-code of Customers location,
unit cost (distributor's cost at quantity 1), quantity and extended
cost (cost times quantity). Red Hat agrees that any such information
provided by Tech Data shall be received and held by Red Hat in strict
confidence and shall be used solely for sell through or compensation
reporting information and shall not be used for purpose related to Red
Hat's sales activities.
6.10 TRADEMARK USAGE. Tech Data is hereby authorized to use trademarks and
tradenames of Red Hat and third parties who have licensed their
trademarks or tradenames to Red Hat, if any, used in connection with
advertising, promoting or distribution the Products. Tech Data
recognizes Red Hat or other third parties may have rights or ownership
of certain trademarks, tradenames and patents associated with the
Products. Tech Data will act consistent with such rights, and Tech Data
shall comply with any reasonable written guidelines when provided by
Red Hat or third parties who have licensed their trademarks or
tradenames Red Hat related to such trademark or trade name usage. Tech
Data will notify Red Hat of any infringement of which Tech Data has
actual knowledge. Tech Data shall discontinue use of Red Hat's
trademarks or trade names upon termination o this Agreement, except as
may be necessary to sell or liquidate any Product remaining in Tech
Data's inventory.
Tech Data /s/ SML Red Hat /s/ TS
Page 10
- --------------
**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
ARTICLE VII. TERMINATION OR EXPIRATION
7.1 TERMINATION.
(a) TERMINATION WITH OR WITHOUT CAUSE. Either party may terminate this
Agreement, with or without cause, upon giving the other party thirty
(30) days prior written notice. In the event that either party
materially or repeatedly defaults in the performance of any of its
duties or obligations set forth in this Agreement, and such default is
not substantially cured within thirty (30) days after written notice is
given to the defaulting party specifying the default, then the party
not in default may, by giving written notice thereof to the defaulting
party, terminate this Agreement or the applicable purchase order
relating to such default as of the date specified in such notice of
termination.
(b) TERMINATION FOR INSOLVENCY OR BANKRUPTCY. Either party may
immediately terminate this Agreement and any purchase orders by giving
written notice to the other party in the event of (i) the liquidation
or insolvency of the other party, (ii) the appointment of a receiver or
similar officer for the other party, (iii) an assignment by the other
party for the benefit of all or substantially all of its creditors,
(iv) entry by the other party into an agreement for the composition,
extension, or readjustment of all or substantially all of its
obligations, or (v) the filing of a petition in bankruptcy by or
against a party under any bankruptcy or debtor's law for its relief of
reorganization which is not dismissed within ninety (90) days.
7.2 RIGHTS UPON TERMINATION OR EXPIRATION.
(a) Termination or expiration of this Agreement shall not affect Red
Hat's right to be paid for undisputed invoices for Products already
shipped and accepted by Tech Data or Tech Data's rights to any credits
or payments owed or accrued to the date of termination or expiration.
Tech Data's rights to credits upon termination or expiration shall
include credits against which Tech Data would, but for termination or
expiration, be required under this Agreement to apply to future
purchases.
(b) Red Hat shall accept purchase orders from Tech Data for
additional Products which Tech Data is contractually obligated to
furnish to its Customers and does not have in its inventory upon the
termination or expiration of this Agreement; provided Tech Data
notifies Red Hat of any and all such transactions within [CONFIDENTIAL
TREATMENT REQUESTED]** following the termination or expiration date.
(c) Upon termination or expiration of this Agreement, Tech Data shall
discontinue holding itself out as a distributor of the Products.
7.3 REPURCHASE OF PRODUCTS UPON TERMINATION OR EXPIRATION. Upon the
effective date of termination or expiration of this Agreement for any
reason, Red Hat agrees to
Tech Data /s/ SML Red Hat /s/ TS
Page 11
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
repurchase all Products in Tech Data's inventory and Products which are
returned to Tech Data by its Customers within [CONFIDENTIAL TREATMENT
REQUESTED]** following the effective date of termination or expiration.
Red Hat will repurchase such Products at the original purchase
price, less any deductions for price protection. The repurchase
price shall not be reduced by any deductions or offsets for early
pay or prepay discounts. Such returns shall not reduce or
offset any co-op payments or obligations owed to Tech Data. Within
[CONFIDENTIAL TREATMENT REQUESTED]** following the effective date of
termination or expiration, Tech Data shall return to Red Hat for
repurchase all Product held in Tech Data's inventory as of the
effective date of termination or expiration. Within [CONFIDENTIAL
TREATMENT REQUESTED]** following the effective date of termination or
expiration, Tech Data shall use best efforts to provide reports
indicating current Customer inventory levels. These reports are
intended to give Red Hat a realistic expectation of the Customer
returns that Red Hat will be expected to accept following the
expiration for the aforementioned [CONFIDENTIAL TREATMENT REQUESTED]**
return period. Red Hat will issue an RMA to Tech Data for all such
Products; provided, however, that Red Hat shall accept returned
Products in accordance with this Section absent an RMA if Red Hat fails
to issue said RMA within [CONFIDENTIAL TREATMENT REQUESTED]** of Tech
Data's request. Red Hat shall credit any outstanding balances owed to
Tech Data. If such credit exceeds amounts due from Tech Data, Red Hat
shall remit in the form of a check to Tech Data the excess within
[CONFIDENTIAL TREATMENT REQUESTED]** of receipt of the Product.
Customized Products shall not be eligible for repurchase pursuant to
this Section.
7.4 SURVIVAL OF TERMS. Termination or expiration of this Agreement for any
reason shall not release either party from any liabilities or
obligations set forth in his Agreement which (i) the parties have
expressly agreed shall survive any such termination or expiration, or
(ii) remain to be performed or by their nature would be in tended to be
applicable following any such termination or expiration. The
termination or expiration of this Agreement shall not affect any of
Red Hat's warranties, indemnification or obligations relating to
returns, co-op advertising payments, credits or any other matters
set forth in this Agreement that should survive termination or
expiration in order to carry out their intended purpose, all of
which shall survive the termination or expiration of this Agreement.
ARTICLE VIII. MISCELLANEOUS
8.1 BINDING NATURE, ASSIGNMENT, AND SUBCONTRACTING. This Agreement shall be
binding on the parties and their respective successors and assigns.
Neither party shall have the power to assign this Agreement without the
prior written consent of the other party, which consent will not
withheld or delayed.
8.2 COUNTERPARTS. This Agreement may be executed in several counterparts,
all of which taken together shall constitute one single agreement
between the parties.
Tech Data /s/ SML Red Hat /s/ TS
Page 12
- --------------
**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
8.3 HEADINGS. The Article and Section headings used in this Agreement are
for reference and convenience only and shall not affect the
interpretation of this Agreement.
8.4 RELATIONSHIP OF PARTIES. Tech Data is performing pursuant to this
Agreement only as an independent contractor. Nothing set forth in this
Agreement shall be construed to create the relationship of principal
and agent between Tech Data and Red Hat. Neither party shall act or
represent itself, directly or by implication, as an agent of the other
party.
8.5 CONFIDENTIALITY. Each party acknowledges that in the course of
performance of its obligations pursuant to this Agreement, it may
obtain certain information specifically marked as confidential or
proprietary. Each party hereby agrees that all such information
communicated to it by the other party, its parent, affiliates
subsidiaries, or customers, whether before or after the Effective date,
shall be and was received in strict confidence, shall be used only for
purposes of this Agreement, and shall not be disclosed without the
prior written consent of the other party, except as may be necessary by
reason of legal, accounting or regulatory requirements beyond either
party's reasonable control. The provisions of this Section shall
survive termination or expiration of this Agreement for any reason for
a period of [CONFIDENTIAL TREATMENT REQUESTED]** after said termination
or expiration.
8.6 This section was intentionally deleted.
8.7 NOTICE. Wherever one party is required or permitted to give notice to
the other party pursuant to this Agreement, such notice shall be deemed
given when actually delivered by hand, by telecopier (if and when
immediately confirmed in writing by any of the other means provided
herein ensuring acknowledgement of receipt thereof for purposes of
providing notice of default or termination), via overnight courier, or
when mailed by registered or certified mail, return receipt requested,
postage prepaid, and addressed as follows:
<TABLE>
<CAPTION>
IN THE CASE OF RED HAT: IN THE CASE OF TECH DATA:
----------------------- -------------------------
<S> <C>
Red Hat Software, Inc. Tech Data Product Management, Inc.
2600 Meridian Parkway, 5350 Tech Data Drive
Durham, NC 27713 Clearwater, FL 33760
Attn: Counsel Attn: Vice President-Marketing Operations
cc: Contracts Administration
</TABLE>
Tech Data /s/ SML Red Hat /s/ TS
Page 13
- --------------
**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
Either party may from time to time change its address for notification
purposes by giving the other party written notice of the new address
and the date upon which it will become effective.
8.8 FORCE MAJEURE. The term "Force Majeure" shall be defined to include
fires or other casualties or accidents, acts of God, severe weather
conditions, strikes or labor disputes, war or other violence, or any
law, order, proclamation, regulation, ordinance, demand or requirement
of any government agency.
(a) If a Force Majeure prevents a party from performance, such
performance is excused for so long as the excused party provides prompt
written notice describing the Force Majeure and immediately continues
performance once the Force Majeure condition is removed.
(b) If, due to a Force Majeure condition, the schedules time of
delivery or performance is or will be delayed for more than ninety (90)
days after the schedules date, the party not relying upon the Force
Majeure condition may terminate, without liability to the other party,
any purchase order or portion thereof covering the delayed Products.
8.9 RETURN MATERIAL AUTHORIZATION NUMBER. Red Hat is required to issue an
RMA to Tech Data within [CONFIDENTIAL TREATMENT REQUESTED]** days of
Tech Data's request, subject to the terms and condition of this
agreement; however, if the RMA is not received by Tech Data
[CONFIDENTIAL TREATMENT REQUESTED]**, Red Hat shall accept returned
Products absent an RMA.
8.10 CREDITS TO TECH DATA. In the event any provision of this Agreement or
any other agreement between Tech Data and Red Hat required that Red Hat
grant credits to Tech Data's account, and such credits are not received
within [CONFIDENTIAL TREATMENT REQUESTED]**, all such credits shall
become effective immediately upon notice to Red Hat. In such event,
Tech Data shall be entitled to deduct any such credits from the next
monies owed to Red Hat. In the event credits exceed any balances owed
by Tech Data to Red Hat, Red Hat shall, upon request from Tech Data,
issue a check payable to Tech Data within [CONFIDENTIAL TREATMENT
REQUESTED]** of such notice. Credits owed to Tech Data shall not be
reduced by early payment or prepayment discounts. Tech Data shall have
the right to set off against any amounts due to Red Hat under this
Agreement or any invoices issued by Red Hat related to this Agreement
any and all amounts due to Tech data from Red Hat, whether or not
arising under this Agreement.
Tech Data /s/ SML Red Hat /s/ TS
Page 14
- --------------
**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
8.11 SEVERABILITY. If, but only to the extent that, any provision of this
Agreement is declared or found to be illegal, unenforceable or void,
then both parties shall be relieved of all obligations arising under
such provision, it being the intent and agreement of the parties that
this Agreement shall be deemed amended by modifying such provision to
the extent necessary to make it legal and enforceable while preserving
its intent.
8.12 WAIVER. A waiver by either of the parties of any covenants, conditions
or agreements to be performed by the other party or any breach thereof
shall not be construed to be a waiver of any succeeding breach thereof
or of any other covenant, condition or agreement herein contained. No
waiver shall be valid unless in writing and signed by the party
granting such waiver.
8.13 REMEDIES. All remedies set forth in this Agreement shall be cumulative
and in addition to and not in lieu of any other remedies available to
either party at law, in equity or otherwise, and may be enforced
concurrently or from time to time.
8.14 ENTIRE AGREEMENT. This Agreement, including any Exhibits and documents
referred to in this Agreement or attached hereto, constitutes the
entire and exclusive statement of Agreement between the parties with
respect to its subject matter and there are no oral or written
representations, understandings or agreements relating to this
Agreement which are not fully expressed herein. The parties agree that
unless otherwise agreed to in writing by the party intended to be
bound, the terms and conditions of this Agreement shall prevail over
any contrary terms in any purchase order, sales acknowledgement,
confirmation or any other document issued by either party affecting the
purchase or sale of Products hereunder.
8.14 GOVERNING LAW. This Agreement shall have [CONFIDENTIAL TREATMENT
REQUESTED]** as its situs and shall be governed by and construed in
accordance with the laws of the State of [CONFIDENTIAL TREATMENT
REQUESTED]**, without reference to choice of laws. The parties agree
that this Agreement excludes the application of the 1980 United Nations
Convention on Contracts for the International Sale of Goods, if
otherwise applicable.
8.16 TIME OF PERFORMANCE. Time is hereby expressly made of the essence with
respect to each and every term and condition of this Agreement.
Tech Data /s/ SML Red Hat /s/ TS
Page 15
- --------------
**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
IN WITNESS WHEREOF, the parties have each caused this Agreement to be
signed and delivered by its duly authorized officer or representative as of the
Effective Date.
RED HAT SOFTWARE, INC. TECH DATA PRODUCT MANAGEMENT, INC.
By: /s/ TERESA SPANGLER By: /s/ GERALD M. LABIE
-------------------------------- -------------------------------------
Printed Name: TERESA SPANGLER Printed Name: GERALD M. LABIE
---------------------- ---------------------------
Title: BUSINESS UNIT LEADER SALES Title: SENIOR VICE PRESIDENT, MARKETING
----------------------------- ----------------------------------
Date: APRIL 18, 1999 Date: APRIL 29, 1999
------------------------------ -----------------------------------
Tech Data /s/ SML Red Hat /s/ TS
Page 16
- --------------
**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
SCHEDULE 1.1(g)
RED HAT SOFTWARE, INC.
DISTRIBUTOR PRICE LIST
EFFECTIVE APPRIL 26, 1999
<TABLE>
<CAPTION>
CLASS A CLASS B CLASS C
<S> <C> <C> <C> <C> <C>
Average Monthly Volume* $500,000.00 $100,000.00 $25,000.00
<CAPTION>
PRODUCT CODE DESCRIPTION UPC CLASS A CLASS B CLASS C
<S> <C> <C> <C> <C> <C>
RH6000 Official Red Hat Linux 6.0/Intel 638347-50052-7 $62.50 $67.96 $71.96
ARH6000 Official Red Hat Linux 6.0/Alpha 638347-50055-8 $62.50 $67.96 $71.96
SRH6000 Official Red Hat Linux 6.0/SPARC 638347-50056-5 $62.50 $67.96 $71.96
RH6300 Red Hat Linux 6.0 EXTRA 638347-50067-1 $78.25 $84.96 $89.96
PT2000 PowerTools for Red Hat Linux 6.0 638347-50066-4 $31.25 $33.96 $35.96
Red Hat Linux 6.0 E-Commerce
WB2100 Server June 28, 1999 TBA TBA TBA
EX1000 Extreme Linux 638347-99999-4 $23.50 $25.46 $26.96
B2005 Maximum RPM 752063-11054-6 $29.50 $30.50 $31.50
System Builder Edition Red Hat
SBE6005 Linux 6.0 (5-pack) 63847-50072-5 $196.05 $212.29 $249.75
ESP1000 10 Incident Support Pack 638347-50035-0 $2,635.60 $2,755.40 $2,845.25
ESP2500 25 Incident Support Pack 638347-50036-7 $6,419.60 $6,711.40 $6,930.25
ESP3000G Gold Annual Support Subscription 638347-50037-4 $30,800.00 $32,200.00 $33,250.00
Platinum Annual Support
ESP3000P Subscription 638347-50038-1 $52,800.00 $55,200.00 $57,000.00
</TABLE>
*Average Monthly Volume defined as sales of Red Hat products to distributor's
customers
<PAGE>
RED HAT SOFTWARE, INC.
DISTRIBUTOR PRICE LIST
EFFECTIVE APPRIL 26, 1999
<TABLE>
<CAPTION>
FOR CANADIAN RETAILERS/ RESELLERS ONLY
FOR SALE WITHIN CANADA CLASS A CLASS B CLASS C
<S> <C> <C> <C> <C> <C>
Average Monthly Volume* $500,000.00 $100,000.00 $25,000.00
<CAPTION>
PRODUCT CODE DESCRIPTION UPC CLASS A CLASS B CLASS C
<S> <C> <C> <C> <C> <C>
CARH6000 Official Red Hat Linux 6.0/Intel 638347-50079-4 $50.00 $54.37 $57.56
CAARH6000 Official Red Hat Linux 6.0/Alpha $50.00 $54.37 $57.56
CASRH6000 Official Red Hat Linux 6.0/SPARC $50.00 $54.37 $57.56
CARH6300 Red Hat Linux 6.0 EXTRA $62.60 $67.97 $71.96
CAPT2000 PowerTools for Red Hat Linux 6.0 $25.00 $27.17 $28.76
Red hat Linux 6.0 E-Commerce
CAWB2100 Server TBA TBA TBA
EX1000* Extreme Linux 638347-99999-4 $23.50 $25.46 $26.96
B2005* Maximum RPM 752063-11054-6 $29.50 $30.50 $31.50
CASBE6005 System Builder Edition Red Hat
Linux 6.0 (5-pack) $156.84 $169.83 $199.80
CAESP1000 10 Incident Support Pack $2,108.48 $2,204.32 $2,276.20
CAESP2500 25 Incident Support Pack $5,135.68 $5,369.12 $5,544.20
ESP3000G* Gold Annual Support Subscription 638347-50037-4 $30,800.00 $32,200.00 $33,250.00
ESP3000P* Platinum Annual Support
Subscription 638347-50038-1 $52,800.00 $55,200.00 $57,000.00
</TABLE>
* Canadian pricing does not apply to EX1000, B2005, ESP3000G, and ESP3000P.
<PAGE>
RED HAT SOFTWARE, INC.
DISTRIBUTOR PRICE LIST
EFFECTIVE APPRIL 26, 1999
FOR COLLEGE/UNIVERSITY RETAILERS ONLY
<TABLE>
<CAPTION>
PRODUCT CODE DESCRIPTION UPC CLASS A
<S> <C> <C> <C>
EDRH6000 Official Red Hat Linux 6.0/Intel 638347-50080-0 $56.25
EDARH6000 Official Red Hat Linux 6.0/Alpha $56.25
EDSRH6000 Official Red Hat Linux 6.0/SPARC $56.25
EDRH6300 Red Hat Linux 6.0 EXTRA $70.43
EDPT2000 PowerTools for Red Hat Linux 6.0 $28.13
EDWB2100 Red Hat Linux 6.0 E-Commerce Server TBA
</TABLE>
Incident Support Packages and Support Subscriptions available.
Please call for prices.
<PAGE>
Exhibit 10.19
SOFTWARE LICENSE AND SHIPMENT AGREEMENT
This License and Shipment Agreement ("Agreement") is made and entered into as of
the 25th day of February, 1999 (the "Effective Date"), by and between Dell
Products L.P., by and on behalf of itself, Dell Computer Corporation, a Delaware
corporation, and the other affiliates of Dell Computer Corporation ("Dell"),
which its principal place of business at One Dell Way, Round Rock, Texas 78682
and Red Hat Software, Inc. a Delaware corporation ("Developer"), with principal
place of business at 2600 Meridian Parkway, Durham, NC 27713.
1. LICENSE RIGHTS. Developer grants to Dell a non-exclusive, worldwide
license to repro-duce, install on the hard drive of Dell computers and ship the
software program(s) (the "Software") and related materials described on Schedule
"A" (collectively, the "Products"). Within five (5) days of the Effective Date,
Devel-oper will provide Dell with a master copy of the current released version
of the Products. Within [CONFIDENTIAL TREATMENT REQUESTED]** of any change to
the current version of any of the Products, [CONFIDENTIAL TREATMENT
REQUESTED]**, Developer will provide Dell with updated masters of the Products
and a description of the changes. Dell will purchase packaged copies of the
Products containing diskettes and documentation from Developer or a distributor
selected by Dell for inclusion with each Dell Computer containing the Software
that is shipped for revenue. The parties acknowledge that Developer and not Dell
is the "distributor" of the Products in the context of the General Public
License, and Dell's activities with respect to the Product shall not constitute
"distribution" under or otherwise fall within the scope of the General Public
License.
2. STOCK BALANCING AND RETURNS. Dell may balance its stock of packaged
Products [CONFIDENTIAL TREATMENT REQUESTED]** and return surplus inventory
freight pre-paid for a credit against future orders of Products, Dell may
exchange its remaining inventory of older versions of packaged Products for a
new or updated release on a unit-for-unit basis.
3. [CONFIDENTIAL TREATMENT REQUESTED]**.
4. PURCHASING; DELIVERY; PAYMENT. Dell shall submit purchaser orders
("Orders") for the Products to Developer or Developer's authorized
distributor specifying quantities for each Product ordered and required
delivery date. Dell may defer, change, or cancel any Order prior to shipment.
Developer will label Products ordered by Dell with bar codes in accordance
with Dell's Bar Code Label Guidelines. Prices in Schedule A are exclusive of
any shipping charges, sales, use or similar taxes. Payment shall be
[CONFIDENTIAL TREATMENT REQUESTED]** after receipt of Products.
5. TRADEMARKS. Any and all trademarks and trade names which Developer
uses in connection with the Prod-ucts are and will remain the exclusive property
of Developer. Developer grants Dell a limited license to reproduce any such
trademarks and trade names as necessary or appropriate for Dell to promote and
market the Products subject to Developer's trademark use guidelines.
6. WARRANTY; DISCLAIMER. Developer will warrant the Product directly
to the end-user in accordance with the terms and conditions set forth in
Developer's end-user license agreement, or modifications of the same.
Developer further warrants to Dell that the Products, alone and in
combination with Dell computers do not infringe any patent, copyright,
trademark or trade secret of any third party and will indemnify and hold Dell
harmless from any such claimed infringement provided that Dell provides
Developer with prompt written notice of each such claim and its reasonable
cooperation in the defense of such claim. In particular, this warranty and
indemnity includes Developer's compliance with its license obligations under
the General Public License,
<PAGE>
-2-
to the extent such obligations exist. EXCEPT AS EXPRESSLY SET FORTH IN THIS
SECTION 6, DEVELOPER SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS,
IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF
FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY.
On an ongoing basis, Developer represents and warrants that:
(a) the Product(s) will operate in accordance with its written
specifications;
(b) Developer has all the necessary rights, titles and
interests in the Product(s) to grant Dell the rights and licenses contained
in this Agreement;
(c) the Product(s) shall not infringe any copyright,
patent, trade secret or any other intellectual property rights or similar
rights of any third party;
(d) the Product(s) does not contain any known viruses,
expiration, time-sensitive devices or other harmful code that would inhibit
the end user's use of the Product(s) or Dell system;
7. TERM AND TERMINATION. This Agreement will begin as of the
Effective Date and will continue for a period of one (1) year. This Agreement
is automatically renewable at one year periods unless either party terminates
as provided herein. Either party may terminate this Agreement for cause upon
thirty (30) days prior written notice of a material breach, if the breach has
not been cured within this 30 day period. Upon termination or expiration of
this Agreement, Dell will immediately stop reproducing Products as provided
in Section 1 above; provided, however, that Dell is permitted to continue
shipping any Products that are already installed on Dell computers as of the
date of termination or expiration. Additionally, Dell will immediately return
to Developer the master diskettes of the Products, together with any
information of Developer marked "Confidential," "Proprietary," or containing
similar markings, including any copies thereof, except those needed for
customer support, and all packaged Products except for one copy for each copy
of Product already installed on Dell computers as of the date of termination
or expiration, and Developer shall refund to Dell all sums already paid for
such Products.
8. TRAINING SUPPORT. Dell may make copies of the software Products
at no charge for internal sales training and sup-port, and Developer will
provide Dell with marketing and other Product literature and materials
reasonably requested by Dell for purposes of such training and support.
Developer will provide Dell and Dell's customers with its standard,
world-wide support offerings and procedures. Dell will have access to
Developer's applicable bulletin board services.
9. NOTICES. Any notice required to be given will be deemed given if in
writing and actually delivered, transmitted by facsimile, or deposited in the
United States mail in registered or certified form, return receipt requested,
postage prepaid, or if sent by air courier, fees prepaid, addressed to the party
at the address set forth below or to such other address as the party may
indicate in accordance with this Section.
- --------------
**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
-3-
Developer address:
Red Hat Software, Inc.
Attn: Counsel
2600 Meridian Pkwy
Durham, NC 27713
Dell Address:
Dell Products L.P.
One Dell Way
EBP, Box 4
Round Rock, TX 78682
Attn: Strategic Commodity Manager
Software Procurement
Copy to:
Dell Computer Corporation
One Dell Way
Round Rock, TX 78682
Attn: Terry McElroy
Dell Legal
10. ENTIRE AGREEMENT. This Agreement and the Purchase Orders issued
hereunder constitute the entire understanding of the parties with respect to the
subject matter hereof and merges all prior written or oral communications,
understandings, and agreements. Neither party may assign this Agreement without
the written consent of the other.
11. GENERAL.
(a) Developer may not assign this Agreement without Dell's
specific prior written consent which Dell will not unreasonably withhold, and
any attempted assignment in violation of the foregoing will be void.
(b) Neither party will be responsible for delays beyond its
reasonable control.
(c) No waiver of any term or condition is valid unless it is
in writing and signed by an authorized representative of the party charged with
the waiver. A valid waiver is limited to the specific situation for which it was
given.
(d) Each party agrees to comply with all applicable laws,
rules, regulations, orders and ordinances of the United States and of any other
state or country with jurisdiction over each party or each party's activities in
performance of its obligations hereunder, including without limitation all
applicable import or export regulations and all incensing or permitting
requirements.
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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(e) This Agreement will be governed by and construed in
accordance with the laws of the State of [CONFIDENTIAL TREATMENT REQUESTED]**
and the applicable laws of the United States, exclusive of any provisions of
the United Nations Convention on the International Sale of Goods and without
regard to principles of conflicts of law.
(f) Whenever possible, each provision of this Agreement will
be interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Agreement is found to violate a law, it will
be severed from the rest of the Agreement and ignored.
(g) This Agreement may be executed in two or more counterparts
in the English language, and each counterpart will be deemed an original, but
all counterparts together will constitute a single instrument.
(h) The English language version of this Agreement will
control regardless of any subsequent translations of this Agreement.
(i) The headings contained in this Agreement are for the
purposes of convenience only and are not intended to define or limit the
contents of this Agreement.
(j) Dell and Developer are independent contractors; neither
party may bind or attempt to bind the other without the other's prior written
consent.
(k) This Agreement has been negotiated by the parties and
their respective counsel and will be interpreted fairly in accordance with its
terms and without any strict construction in favor of or against either party.
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
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IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized representatives as of the date first set forth above.
DEVELOPER DELL
By: /s/ Paul McNamara By: Dell Products L.P.
------------------------
Name: Paul Mcnamara Name: Martin J. Garvin /s/
------------------------
Title: Vice President Title: VP, Worldwide Procurement
------------------------
Date: 3/17/99 Date: 3/17/99
------------------------ ----------------------------
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RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
SCHEDULE A
PRODUCT
Red Hat Linux
1. At Dell's option, Dell will use reasonable efforts to offer Red Hat Linux
(current version 5.2) installed by DPSI on selected configurations of Dell
servers by the end of March, 1999. Dell will be allowed to charge an
installation fee to Dell customers for this service. Developer will provide a
shrink-wrapped package containing System Builder Edition media and installation
manual to Dell for inclusion in the packaging of my Dell platform loaded with
Red Hat Linux. The cost of the package will be [CONFIDENTIAL TREATMENT
REQUESTED]**when purchased directly from Red Hat or at a standard mark-up when
purchased from an authorized distributor.
2. Two versions of the software, in English only, will be available to Dell
customers. Both have the same code, but different levels of support from
Developer. The System Builder addition is available at a cost of [CONFIDENTIAL
TREATMENT REQUESTED]**and includes no support. The Commercial Server Edition
includes 90-days of 24 x 7 support from Developer at a cost of [CONFIDENTIAL
TREATMENT REQUESTED]**. Developer will keep Dell informed should any other
languages as such languages become available.
3. Configurations will be limited due to lack of driver support for certain
peripherals.
4. All software support will be provided by Developer to Dell customers. Dell
assumes no obligation in assuring payment of such fees by Dell customers to
Developer. Developer will arrange to separately contract with Dell customers
for support and service of Linux.
5. Initial installations will be on PE1300 and PE 2300. Additional platforms
including other server models, workstations, notebooks and desktops will be made
available, at Dell's option.
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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SCHEDULE B
Year 2000 Readiness Disclosure
Red Hat Linux has been designed and tested from the beginning to work
for our customers in the Year 2000 and beyond. We have tested the system
utilities and kernel of Red Hat Linux versions 4.1 and greater, and have found
them to be Year 2000 compliant, meaning that they will not produce errors in
date data related to the year change from December 31, 1999 to January 1, 2000.
Customers who use versions of Red Hat Linux prior to version 4.1 may upgrade to
more recent and up-to-date versions at no charge, by downloading a new version
from Red Hat's ftp site at FTP.REDHAT.COM or from one of many mirror sites
around the world.
Red Hat Linux, as an operating system, is only one layer of many in a
functioning computer system. Some applications written to work with Red Hat
Linux may not be Year 2000 compliant, even though the operating system itself
is. Therefore, we encourage our customers to evaluate their hardware, software
applications, and other computer products carefully.
Red Hat software believes Year 2000 readiness issues are more about
testing, good practices, and user education than product warranty. We will
continue to provide information to customers about year 2000 readiness, but
contractual warranties specific to Year 2000 readiness are not appropriate given
the true nature of Year 2000 issues and the simple fact that a single technology
provider, even one as well prepared for the Year 2000 as Red Hat, cannot solve
all issues related to the transition to the Year 2000. Warranties for Red Hat
Software's products are set forth in the license agreements that accompany the
products and we recommend that customers read those warranties to understand
their rights. The information we disseminate about year 2000 readiness does not
constitute an extension of any warranty for Red Hat Software products. Red Hat
Software provides this information to assist our customers in evaluating and
correcting potential issues for using dates into the next century.
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**[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in this Registration Statement on Form S-1 of
our report dated April 30, 1999, except as to note 14 which is as of August 5,
1999, relating to the financial statements of Red Hat, Inc., which appears in
such Registration Statement. We also consent to the references to us under the
headings "Experts" and "Selected Financial Data" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Raleigh, North Carolina
August 5, 1999
