<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended December 31, 1995
-----------------
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period ____________ to ____________ .
Commission file number 0-17111
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PHOENIX TECHNOLOGIES LTD.
-------------------------
(Exact name of Registrant as specified in its charter)
Delaware 04-2685985
- --------------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
2770 De La Cruz Boulevard, Santa Clara, California 95050
--------------------------------------------------------
(Address of principal executive offices, including zip code)
(408) 654-9000
--------------
(Registrant's telephone number, including area code)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
YES X NO
---- ----
Indicate the number of shares outstanding of each of
the issuer's classes of common stock, as of the latest practicable date.
Common Stock, par value $.001 14,070,727
- --------------------------------------- ------------------------------------
Class Number of shares Outstanding at
December 31, 1995
Exhibit Index is on Page 12
Page 1
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PHOENIX TECHNOLOGIES LTD.
FORM 10-Q
INDEX
<TABLE>
<CAPTION>
PAGE
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<S> <C> <C>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements (unaudited)
Condensed Consolidated Balance Sheets
December 31, 1995 and September 30, 1995 . . . . 3
Condensed Consolidated Income Statements
Three Months Ended December 31, 1995 and 1994. . 4
Condensed Consolidated Statements of Cash Flows
Three Months Ended December 31, 1995 and 1994. . 5
Notes to Condensed Consolidated Financial
Statements . . . . . . . . . . . . . . . . . . . 6
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations. . . 8
PART II. OTHER INFORMATION
Item 6. Exhibits and Report on Form 8-K. . . . . . . . . . 10
A. Exhibits . . . . . . . . . . . . . . . . . . 10
B. Report on form 8-K . . . . . . . . . . . . . 10
</TABLE>
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PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
PHOENIX TECHNOLOGIES LTD.
CONDENSED CONSOLIDATED BALANCE SHEETS
(in thousands, except share and per share amounts)
(unaudited)
<TABLE>
<CAPTION>
December 31, September 30,
1995 1995
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<S> <C> <C>
ASSETS
Current assets:
Cash and short-term investments $ 34,438 $ 32,944
Accounts receivable, net of allowances of $458 at
December 31, 1995 and $430 at September 30, 1995 12,740 12,064
Other current assets 4,424 3,690
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Total current assets 51,602 48,698
Property and equipment, net 3,018 2,625
Computer software costs, net 4,207 3,823
Non-current deferred tax asset 2,195 2,195
Other assets 4,508 5,049
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Total assets $ 65,530 $ 62,390
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LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 1,115 $ 1,645
Payroll related liabilities 1,975 2,536
Other accrued liabilities 5,578 4,956
Income taxes payable 3,404 2,765
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Total current liabilities 12,072 11,902
Other liabilities 120 70
Stockholders' equity:
Preferred stock, $.10 par value, 500,000 shares
authorized, none issued -- --
Common stock, $.001 par value, 20,000,000 shares
authorized, 14,070,727 issued at December 31, 1995
and 13,927,801 at September 30, 1995 14 14
Additional paid-in capital 54,632 53,710
Accumulated deficit (1,165) (3,232)
Accumulated translation adjustment (143) (74)
----------- -------------
Total stockholders' equity 53,338 50,418
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Total liabilities and stockholders' equity $ 65,530 $ 62,390
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</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THE CONDENSED CONSOLIDATED
FINANCIAL STATEMENTS.
Page 3
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PHOENIX TECHNOLOGIES LTD.
CONDENSED CONSOLIDATED INCOME STATEMENTS
(in thousands, except per share amounts)
(unaudited)
<TABLE>
<CAPTION>
Three Months Ended
December 31,
---------------------
1995 1994
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<S> <C> <C>
Revenues:
License fees $ 12,238 $ 9,775
Services 2,007 1,344
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Total revenue 14,245 11,119
Cost of revenues:
License fees 1,334 765
Services 1,605 1,314
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Total cost of revenue 2,939 2,079
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Gross margin 11,306 9,040
Operating expenses:
Research and development 3,073 2,548
Sales and marketing 3,286 3,380
General and administrative 2,483 1,382
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Total operating expenses 8,842 7,310
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Income from operations 2,464 1,730
Interest income, net 446 312
Other income (expense), net (43) 200
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Income before income taxes 2,867 2,242
Provision for income taxes 800 673
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Net income $ 2,067 $ 1,569
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Net income per common share $ 0.14 $ 0.11
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Weighted average number of common and
common equivalent shares outstanding 15,307 14,775
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</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THE CONDENSED CONSOLIDATED
FINANCIAL STATEMENTS.
Page 4
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PHOENIX TECHNOLOGIES LTD.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
Three Months Ended
December 31,
---------------------
1995 1994
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<S> <C> <C>
Cash flows from operating activities:
Net income $ 2,067 $1,569
Adjustments to reconcile net income to
net cash provided by (used in) operating activities:
Depreciation and amortization 1,020 653
Equity interest in subsidiary -- (200)
Change in operating assets and liabilities
Accounts receivable (676) (1,160)
Other current assets and other assets (709) 2,815
Accounts payable (530) (889)
Accrued payroll (561) (113)
Other accrued liabilities 585 (4,230)
Income taxes payable 661 (1,445)
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Total adjustments (210) (4,569)
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Net cash provided by (used in) operating activities 1,857 (3,000)
Cash flows from investing activities:
Maturities of short-term investments 4,281 3,579
Purchases of short-term investments (11,732) (14,431)
Purchases of property and equipment (815) (464)
Additions to computer software costs (470) (280)
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Net cash used in investing activities (8,736) (11,596)
Cash flows from financing activities:
Proceeds from exercise of common stock options and
issuance of stock under employee stock purchase plan 922 423
Purchase of treasury stock -- (833)
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Net cash provided by (used in) financing activities 922 (410)
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Decrease in cash and cash equivalents (5,957) (15,006)
Cash and cash equivalents at beginning of period 25,797 29,519
------------ -----------
Cash and cash equivalents at end of period $19,840 $14,513
------------ -----------
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</TABLE>
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THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THE CONDENSED CONSOLIDATED
FINANCIAL STATMENTS.
PHOENIX TECHNOLOGIES LTD.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. Basis of Presentation
Phoenix Technologies Ltd. (the "Company"), designs, develops and
markets system-level and application software products.
The accompanying condensed consolidated financial statements of Phoenix
Technologies Ltd. and its wholly owned subsidiaries have been prepared by the
Company, without audit, pursuant to the rules and regulations of the
Securities and Exchange Commission. Certain information and footnote
disclosures normally included in financial statements prepared in accordance
with generally accepted accounting principles have been condensed or omitted
pursuant to such rules and regulations. The information included in this
report should be read in conjunction with the Company's audited financial
statements and notes thereto included in the Company's Annual Report on Form
10-K for the year ended September 30, 1995.
In the opinion of management, the accompanying unaudited condensed
consolidated financial statements reflect all adjustments (consisting only of
normal recurring adjustments) necessary to summarize fairly the Company's
financial position at December 31, and September 30, 1995, and the results of
operations and the cash flows for the three-month periods ended December 31,
1995 and 1994. All significant intercompany accounts and transactions have
been eliminated. The operating results for the three month period ended
December 31, 1995 are not necessarily indicative of the results that may be
expected for the year ended September 30, 1996 or for any other future period.
Certain amounts in the fiscal 1995 financial statements have been
reclassified to conform to the fiscal 1996 presentation. These
reclassifications had no effect on net income or earnings per share for 1995.
2. Cash and Short-term Investments
Cash and short-term investments consist of the following (in thousands):
<TABLE>
DECEMBER 31, SEPTEMBER 30,
1995 1995
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<S> <C> <C>
Cash and cash equivalents $ 19,840 $ 25,797
Short-term investments 14,598 7,147
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$ 34,438 $ 32,944
------------ -------------
------------ -------------
</TABLE>
Investments in certain highly liquid securities with maturities of less
than ninety days are considered cash equivalents. Investment securities consist
of U.S government and agency obligations, bankers' acceptances, and commercial
paper with original maturities generally ranging from three months to one year.
The Company adopted the provisions of Statement of Financial Accounting
Standards No. 115, "Accounting for Certain Investments in Debt and Equity
Securities," on December
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31, 1994. The adoption of Statement No. 115 had no
effect on the Company's financial position and results of operations. The
Company classifies its investment securities as held-to-maturity because, as
provided in Statement No. 115, it has the ability and intent to hold them until
maturity. Such securities are reported at amortized cost.
3. Net Income Per Common Share
Net income per common and common equivalent share is computed using
weighted average number of common and dilutive common equivalent shares
outstanding during each year. Dilutive common equivalent shares resulting
from outstanding stock options are calculated using the treasury stock
method. Fully diluted earnings per share are not materially different from
reported primary earnings per share.
4. 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 qualified financial institutions. The Company
does not require collateral for trade receivables, but related credit risk is
limited due to the Company's large number of customers and their geographic
dispersion. As of December 31, 1995 and September 30, 1995, no customer
accounted for 10% or more of accounts receivable.
5. Income Taxes
Income taxes are accounted for in accordance with Statement of
Financial Accounting Standards No. 109, "Accounting for Income Taxes." Under
the asset and liability method of Statement No. 109, deferred tax assets and
liabilities are recognized for future tax consequences attributable to
differences between the financial statement carrying amounts of existing
assets and liabilities, and their respective tax bases. Deferred tax assets
and liabilities are measured using enacted tax rates expected to apply to
taxable income in the years in which those temporary differences are expected
to be recovered or settled. Under Statement No. 109, the effect on deferred
tax assets and liabilities of a change in tax rates is recognized in income
in the period of enactment.
6. Stock Options
Statement of Financial Accounting Standards No. 123, "Accounting for
Stock-Based Compensation" was issued in October 1995 and applies to fiscal
years beginning after December 15, 1995. While the Company is studying the
impact of the pronouncement, it continues to account for employee stock
options under APB Opinion No. 25, "Accounting for Stock Issued to Employees."
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Item 1. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
REVENUE. Revenue increased by $3.1 million (28%) to $14.2 million in the
first fiscal quarter of 1996 compared to revenues of $11.1 million for the
comparable period in fiscal 1995. The increase resulted primarily from an
increase in royalty revenue from the Company's expanding customer base as
well as repeat sales to existing customers. As a percentage of revenue,
international sales increased to 60% in the first fiscal quarter of 1996 from
49% for the comparable period in fiscal 1995. The increase in international
revenue was primarily due to increased revenue in Japan and Asia.
GROSS MARGIN. Gross margin as a percent of revenue decreased in the first
fiscal quarter of 1996 to 79% of net revenues, as compared to 81% of revenue
for the comparable period in fiscal 1995. License fee gross margin decreased
in the first fiscal quarter of 1996 to 89% of net revenues, as compared to
92% of net revenue for the comparable period in fiscal 1995, primarily due to
increases in royalty expense and amortization of capitalized computer
software cost.
The increase of service revenue as a percent of total revenues during the
first quarter of fiscal 1996 also contributed to a lower total gross margin
percentage.
RESEARCH AND DEVELOPMENT EXPENSES. Research and development expenses
increased $0.6 million (21%) to $3.1 million for the first fiscal quarter of
1996 from $2.5 million for the comparable period in fiscal 1995. The
increase in research and development expenses is primarily due to an increase
in the Company's engineering staff to continue development of system-level
software.
The Company capitalized $0.5 million of internally developed software costs
in the first fiscal quarter of 1996 as compared to $0.3 million for the
comparable period in fiscal 1995. Such amounts were offset by amortization of
capitalized software costs of $0.5 million in the first fiscal quarter of
1996 and $0.2 million for the comparable period in fiscal 1995. The Company
believes that continued investment in new and evolving technologies is
essential to meet rapidly changing industry requirements.
SALES AND MARKETING EXPENSES. Sales and marketing expenses decreased by $0.1
million (3%) to $3.3 million in the first fiscal quarter of 1996 compared to
$3.4 million for the comparable period in fiscal 1995. The decrease resulted
primarily from the absence in fiscal 1996 of advertising expenses related to
products marketed through the retail channel. The Company discontinued
retail distribution in fiscal 1995. The decrease in advertising expenses
from the prior year was partially offset by additional commissions paid in
the first fiscal quarter of 1996 on an increased revenue base.
GENERAL AND ADMINISTRATIVE EXPENSES. General and administrative expenses
increased by $1.1 million (80%) to $2.5 million in the first fiscal quarter
of 1996 compared to $1.4 million for the comparable period in fiscal 1995.
The increase resulted primarily from an increase in facilities expenses
associated with the Company's new facilities in California as well as an
greater recruiting expenses associated with headcount growth.
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PROVISION FOR INCOME TAXES. The Company recorded an income tax provision of
$0.8 million in the first fiscal quarter of 1996 compared to $0.7 million for
the comparable period in fiscal 1995. The fiscal 1996 provision reflects an
estimated annualized effective tax rate of 28%. The effective tax rate for
fiscal 1995 was adjusted in the fourth quarter to 26% (before adjustment to
the deferred tax asset valuation allowance). The higher tax rate in fiscal
1996 reflects the reduction of available deferred tax assets from the prior
year.
LIQUIDITY AND CAPITAL RESOURCES. At December 31, 1995, the Company's
primary sources of liquidity included cash, cash equivalents and short-term
investments of $34.4 million and available borrowing of $10 million under a
revolving credit facility with a commercial bank. No amounts under this
revolving credit facility were outstanding as of December 31, 1995. That
facility expired in January 1996 and the Company and the bank are negotiating
a definitive agreement to extend the credit facility. The Company believes
that its existing sources of liquidity will be sufficient to satisfy the
Company's cash requirements for at least the next twelve months
Net cash generated from operating activities in the first fiscal quarter of
1996 was $1.9 million, resulting primarily from cash provided by net income,
adjusted for depreciation, an increase in accrued income taxes and other
accrued liabilities. This increase is partially offset by increases in
accounts receivable, other current assets, other assets and decreases in
accounts payable, accrued payroll. Net cash used in investing activities in
the first fiscal quarter of 1996 was $8.7 million which consisted primarily
of purchases of short-term investments of $11.7 million and purchases of
property and equipment of $0.9 million for use in the Company's operations
which was partially offset by maturities of short term investments of $4.4
million. Cash generated from financing activities in the first fiscal quarter
of 1996 was from the net proceeds from the exercise of stock options and
issuance of stock under the Company's employee stock purchase plan.
The Company announced a major technology and license agreement with Intel
Corporation during the first fiscal quarter of 1996. In addition, Intel will
invest approximately $10.9 million to acquire Phoenix Technologies' common
stock and a warrant to buy additional stock of the Company. Under the terms
of the equity agreement, Intel will purchase 894,971 newly issued,
unregistered shares at a per share price of $11.71, representing 6% of
Phoenix's post transaction shares. The warrrant will cover 1,073,965 shares
which vests with an escalating exercise price over four years.
Page 9
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PART II. OTHER INFORMATION
Item 6. Exhibits and Report on Form 8-K.
(a) EXHIBITS. See exhibit index beginning on page 12 hereof.
(b) REPORT ON FORM 8-K
Report on Form 8-K filed on January 2, 1996, reporting
under Item 4, Change in Registrant's Certifying Accountant
Page 10
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PHOENIX TECHNOLOGIES LTD.
Date: FEBRUARY 14, 1996 By:/s/Robert J. Riopel
Robert J. Riopel
Vice President, Finance and
Chief Financial Officer
Page 11
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EXHIBIT INDEX
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EXHIBIT
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4.3 Rights Agreement dated as of October 31, 1989 between the Company
and The First National Bank of Boston - filed as Exhibit 4.1 to
the October 31, 1989 Form 8-K, and incorporated herein by this
reference.
10.1 1986 Incentive Stock Option Plan, as amended - filed as Exhibit
4.1 to the Company's Registration Statement on Form S-8,
Registration No. 33-30940, and incorporated herein by this
reference.
10.2 Senior Management Stock Option Plan, as amended - filed as Exhibit
4.2 to the Company's Registration Statement on Form S-8,
Registration No. 33-26996 (the "February 1989 Form S-8"), and
incorporated herein by this reference.
10.3 Senior Management Nonqualified Stock Option Plan, as amended -
filed as Exhibit 4.3 to the February 1989 Form S-8 and
incorporated herein by this reference.
10.4 Employment agreement dated June 9, 1994 between the Registrant and
Jack Kay - filed as Exhibit 10.9 to the Company's Quarterly Report
on Form 10-Q filed on August 15, 1994 and incorporated herein by
this reference.
10.5 Line of Credit Agreement dated November 25, 1991 between the
Registrant and Silicon Valley Bank -- filed as Exhibit 10.17 to
the Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 1991 (the "1991 Form 10-K") and incorporated
herein by this reference.
10.6 1992 Equity Incentive Plan - filed with the Company's preliminary
proxy materials filed on December 17, 1992 (the "1992 Equity
Incentive Plan") and incorporated herein by this reference.
10.7 Amendment dated April 15, 1993 to the Line of Credit Agreement
dated November 25, 1991 between the Registrant and Silicon Valley
Bank filed as exhibit 10.23 to the Company's Form 10-Q filed on
August 16, 1993 and incorporated herein by this reference.
10.8 Amendment dated June 28, 1993 to the Line of Credit Agreement
dated November 25, 1991 between the Registrant and Silicon Valley
Bank filed as exhibit 10.24 to the Company's Form 10-Q filed on
August 16, 1993 and incorporated herein by this reference.
10.9 Replication Agreement dated March 15, 1993 between the Company and
Microsoft Corporation and Amendments One, Two, Three and Four
thereto, filed as exhibit 10.16 to the Company's Annual Report on
Form 10-K for the fiscal year ended September 30, 1993 and
incorporated herein by this reference.
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10.10 Letter Amendment dated as of December 30, 1993 to Line of Credit
Agreement dated November 25, 1991 between the Registrant and
Silicon Valley Bank filed as exhibit 10.17 to the Company's Form
10-Q filed on February 14, 1994 and incorporated herein by this
reference.
10.11 Purchase Agreement dated March 15, 1994 between the Company and
Softbank Corporation filed as exhibit 10.18 to the Company's Form
10-Q filed May 16, 1994 and incorporated herein by this reference.
10.12 Amendment Number 1 to the 1992 Equity Incentive Plan filed as
exhibit 10.19 to the Company's Form 10-Q filed May 16, 1994 and
incorporated herein by this reference.
10.13 Amendment Number 1 to the 1991 Employee Stock Purchase Plan filed
as exhibit 10.20 to the Company's Form 10-Q filed May 16, 1994 and
incorporated herein by this reference.
10.14 Amendment No. 1 to Purchase Agreement by and between Phoenix
Technologies Ltd. and Softbank Corporation dated as of March 15,
1994 - filed as Exhibit 2.02 to the Company's Current Report on
Form 8-K dated September 30, 1994 and incorporated herein by this
reference.
10.15 Asset Purchase Agreement made as of September 30, 1994 by and
between the Registrant and Xionics International Holdings, Inc. -
filed as Exhibit 2.01 to the Company's Current Report on Form 8-K
dated November 8, 1994 and incorporated herein by this reference.
10.16 Lease dated as of May 3, 1994 between the Company and the
Equitable life Assurance Society of the United States - filed as
Exhibit 10.24 to the Company's Report on Form 10-K for the fiscal
year ended September 30, 1994 - filed as Exhibit 10.16 to the
Company's Report on Form 10-K for the fiscal year ended September
30, 1995 (the "1995 10-K") and incorporated herein by this
reference.
10.17 1994 Equity Incentive Plan, as amended by the Board of Directors
through September 28, 1995 - filed as Exhibit 10.17 to the 1995
10-K and incorporated herein by this reference.
10.18 Amended and Restated Employee Stock Purchase Plan, as amended by
the Board of Directors through December 6, 1995 - filed as Exhibit
10.18 to the 1995 10-K and incorporated herein by this reference.
10.19 Employment offer letter between the Company and Gayn B. Winters -
filed as Exhibit 10.19 to the 1995 10-K and incorporated herein by
this reference.
10.20 Loan Modification Agreement dated January 25, 1995 to the Line of
Credit Agreement dated November 25, 1991 between Silicon Valley
Bank and the Company - filed as Exhibit 10.20 to the 1995 10-K and
incorporated herein by this reference.
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10.21 Third Amendment dated as of June 8, 1995 to the Line of Credit
Agreement dated November 25, 1991 between Silicon Valley Bank and
the Company - filed as Exhibit 10.21 to the 1995 10-K and
incorporated herein by this reference.
10.22 Amendment dated as of June 30, 1995 to the Line of Credit
Agreement dated November 25, 1991 between Silicon Valley Bank and
the Company - filed as Exhibit 10.22 to the 1995 10-K and
incorporated herein by this reference.
10.23 Amended and Restated Lease Agreement dated March 15, 1995 between
The Prudential Insurance Company of America and the Company with
respect to certain facilities located at 846 University Avenue,
Norwood, MA - filed as Exhibit 10.23 to the 1995 10-K and
incorporated herein by this reference.
10.24 Agreement dated December 18, 1995 between Intel Corporation and
the Company (confidential treatment requested).
10.25 Common Stock and Warrant Purchase Agreement dated as of December 18,
1995 by and between the Company and Intel Corporation.
11.1 Statement re computation of earnings per share (primary earnings
per share).
Page 14
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EXHIBIT 10.24
This agreement ("Agreement") is made by and between Phoenix
Technologies Ltd., a Delaware corporation with a principal place of
business at 2770 De La Cruz Boulevard, Santa Clara, CA 95050 at
("Phoenix"), and Intel Corporation, a Delaware corporation with a
principal place of business at 2200 Mission College Blvd., Santa
Clara, California, 95052 ("Intel"). Phoenix and Intel may be referred
to herein as a Party or the Parties.
RECITALS
WHEREAS, the parties desire to establish a strategic relationship
whereby Phoenix will become a principal supplier of certain
system-level software for certain Intel products.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the promises, the
parties hereto agree as follows:
1.0. DEFINITIONS
For purposes of this Agreement, each of the following terms will have the
definition set forth below when capitalized in this Agreement:
1.1 "Beta Release" means a Software release in which all key features are
working, is reproducible via an archival system, has undergone
engineering test beyond that which the developer does himself, and is
nearly ready for Production Release.
1.2 "Coordinators" will be that person or persons assigned from
time to time by each Party to represent their respective employer
with respect to the financial, customer, administrative and
marketing aspects of the relationship created by this Agreement (the
"Business Coordinator") and with respect to the engineering,
development and support aspects of the relationship created by this
Agreement, respectively (the "Technical Coordinator").
1.3 "Dedicated Developments" means Software developed by the Dedicated
Engineering Team and released for shipment (including alpha and beta
test versions) during the Term. Dedicated Developments may, at
Phoenix's option, become part of Phoenix Products and its other
standard product offerings, subject to the provisions of Section 2.10
hereof.
1.4 "Dedicated Engineering Team" means the Phoenix engineers assigned from
time to time by Phoenix on a full time basis to provide development
and deployment engineering services in connection with Phoenix Products
and Dedicated Developments for incorporation into Intel Products.
1.5 "Effective Date" means the 18th day of December, 1995.
1.6 [ TEXT DELETED ].
1.7 "Intel Developments" means Source and Object Code developed by or for
Intel other than by Phoenix, including modifications made to, or
derivatives of,Phoenix Products and/or Dedicated Developments to the
extent such modifications or derivatives do not contain any Software
supplied by Phoenix.
1.8 "Intel Products" means Intel's printed circuit board, system and
multi-chip module level products designed for use in desktop
computer, server computer, or Multibus and similar industrial
CONFIDENTIAL TREATMENT REQUESTED
-1-
<PAGE>
computer products manufactured and marketed by Intel or Intel's
contractors or customers. An Intel Product which is otherwise
within the definition of the preceding sentence will not cease
to be an Intel Product, merely because it is used or marketed
for use by Intel, Intel's contractors,
or Intel's customers in a product other than a desktop computer, server
computer, Multibus or similar industrial computer product.
1.9 "Minimum License Terms" means the provisions set out in Exhibit C
hereto which shall be applicable to the sublicense or license of
Phoenix Products, and/or Dedicated Developments by Intel.
1.10 "Object Code" means Software in machine-readable and executable
form.
1.11 "On-Site Engineering Team" means those members of the Dedicated
Engineering Team who will initially be located at or near Intel's
Hillsboro, Oregon site, or such other site(s) as Intel may choose to
designate from time to time.
1.12 "Phoenix Products" means Phoenix BIOS-related system software products,
including but not limited to the products listed in Exhibit A, and all
system software products Phoenix subsequently develops to evolve such
products for use with desktop computer and server computer products,
including, but not limited to, all Updates and Enhancements, substitutes,
successors, replacements, and/or supplements thereto designed for use on
desktop computer and server computer products, as the same may exist
from time to time and which Phoenix is obligated to deliver to Intel
hereunder. "Phoenix Products" does not include (a) any system software
products intended by Phoenix for use in products other than desktop
computer or server computer products, including but not limited to
embedded or special purpose computers or portable computers,
or (b) application software products even though intended for the
desktop computer or server computer market segments whose primary
purpose is something other than to replace or enhance functions
performed by the products described in the first sentence above.
"Phoenix Products" includes any Tools related to the development and
support of Phoenix Products. However, if such Tools have been developed
by third parties, and (a) if Phoenix does not have the full license
rights to provide those Tools to Intel under the licenses herein, then
Phoenix will provide the Tools subject to third party license
restrictions or (b) if Phoenix has no right to provide those Tools to
Intel under the licenses herein, then Phoenix has no obligation to
provide Intel such third party Tools, but will not take any actions
to prevent Intel from directly licensing such Tools from a third
party.
1.13 "Production Release" means a product release that has been officially
released for general commercial availability by Phoenix to more than
one customer, and does not include any product released as an alpha,
beta, or similar version to a limited number of recipients for testing,
evaluation, or any other pre-release use.
1.14 "QuietBoot Feature" means a portion of the Phoenix Software licensed
to Intel designed to customize system initialization as seen by the
end user, and which also includes, among other functions, the ability
to suppress, alter, and personalize the display of any copyright or
other messages.
1.15 "Shipment and Royalty Reports" are the reports setting forth the
shipment of Intel Products by Intel and its customers and sublicensees
for each calendar quarter during the Term hereof.
1.16 "Software" means computer programming code in Object Code and Source
Code formats.
1.17 "Source Code" means Software in human-readable form and related design
documentation, including all comments and any procedural code.
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1.18 "Specifications" means the specifications for the Phoenix Products
included as part of Exhibit A attached hereto, any mutually agreed to
specifications, and specifications published by Phoenix, for any
Phoenix Products and/or Dedicated Developments.
1.19 "Tools" means any diagnostic programs and development tools developed
by Phoenix or third parties that are used by Phoenix, specifically to
assist it in the development and support of Phoenix Products, and which
are made commercially available from time to time by Phoenix to more
than one of its customers.
1.20 "Updates and Enhancements" means all modifications or additions to a
Phoenix Product or Dedicated Development that correct such product or
enhance such product's functionality and new releases of such product
made generally available by Phoenix.
1.21 "Year" means each calendar year during the Term; provided, that the
first Year shall end on December 31, 1996.
2. GRANT OF RIGHTS
2.1 Subject to the terms, conditions and limitations set forth in this
Agreement, Phoenix hereby grants to Intel the following licenses under
any and all intellectual property which Phoenix, now or in the future,
owns or has authority to grant licenses of the scope set forth herein
that are applicable to or reading upon the Phoenix Products and
Dedicated Developments:
(a) A worldwide, non-transferable, [ TEXT DELETED ], royalty-free
(except as set forth in Section 4.1(c)) license, with right to
sublicense in accordance with this Agreement, to use, copy, have copied,
make, have made, create derivatives of, perform, distribute, sell, offer
to sell, and import, the Phoenix Products and Dedicated Developments, in
Source Code format, for any reason;
(b) A worldwide, non-transferable, [ TEXT DELETED ], royalty-bearing
license, with the right to sublicense in accordance with this Agreement,
to use, copy, have copied, make, have made, perform, distribute, sell,
offer to sell, import, and publicly display the Phoenix Products and
Dedicated Developments and derivatives thereof created by Intel and its
sublicensees pursuant to this Agreement, in Object Code format, directly
or indirectly to end users;
2.2 Subject to Phoenix's compliance with existing agreements as set forth
in Section 2.5 below, Phoenix agrees that it will not during the Term
[ TEXT DELETED ].
2.3 Intel may sublicense to customers and contractors its license rights
with respect to Phoenix Products and Dedicated Developments, and
derivatives thereof, in Object Code format, provided each such
Customer, other than end users, shall have executed with Intel an
Object Code license containing terms no less restrictive than the
Minimum License Terms applicable to Object Code set forth in
Exhibit C.
2.4 Intel may sublicense to customers and contractors its
license rights with respect to Phoenix Products and Dedicated
Developments, and derivatives thereof, in Source Code format,
provided (i) each such Customer shall have executed with Intel
a Source Code license containing terms no less restrictive
than the Minimum License Terms for Source Code set forth in Exhibit C.
2.5 Intel acknowledges that Phoenix has numerous contractual commitments
granting persons who may be customers of Intel licenses to use Phoenix
Products on Intel Products as the same may have existed prior to the
execution of this Agreement and that nothing herein shall prohibit
or limit Phoenix's right and obligation to perform those contractual
commitments. Notwithstanding the foregoing, Phoenix will not
undertake any action with respect to such contractual
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commitments which are intended to circumvent or have the effect of
circumventing Intel's licenses set forth in this Section 2, provided
that the preceding clause shall not prohibit Phoenix from:
(a) renewing or allowing to renew any such contractual commitments
in accordance with any automatic renewal provisions thereof;
(b) adding any provisions to such contractual commitments to grant
licenses with respect to end-user only BIOS and related system software
upgrades for previously sold systems, provided that such upgrades are
not offered integrated with or bundled with any hardware products
equivalent to an Intel Product, except small printed circuit board
modules, which only include memory circuitry designed for such
BIOS upgrades; or
(c) modifying or renegotiating the [ TEXT DELETED ] provisions
of such contractual commitments; provided, however, that no such
modification or renegotiation will [ TEXT DELETED ].
2.6 Phoenix may place legitimate copyright notices in and on the Phoenix
Products and Dedicated Developments and on any documentation (or such
other place as Intel and Phoenix may agree in writing) delivered to
Intel pursuant to this Agreement. [ TEXT DELETED ].
2.7 Intel agrees that Phoenix may independently develop products which
have features and functionality similar to or identical with those
described in specifications for Dedicated Developments concurrently
with the development of Dedicated Developments by the Dedicated
Engineering Team and that Phoenix may provide its customers with such
products at any time; provided, that any such products are developed
without direct reference to Software, Specifications or other
documentation in or related to the Dedicated Developments and may
only be developed by Phoenix personnel who are not members of the
then current Dedicated Engineering Team, or who have not been members
of the Dedicated Engineering Team within the last [ TEXT DELETED ],
and without use of any Source or Object Code being developed by the
Dedicated Engineering Team.
2.8 Notwithstanding anything to the contrary contained in this Agreement:
(a) Phoenix will not be required to deliver to the other any Software
relating to unique features developed solely for a single customer,
except for Software tailored for Intel Products.
(b) Intel shall not have the right to grant any right
whatsoever (including without limitation, any license, sublicense,
right to use, make, copy, have made, have copied, market, distribute
or sell) with respect to any Phoenix Product, any Dedicated
Development, or any Phoenix intellectual property, to American
Megatrends, Inc., Award Software, SystemSoft Corporation, or, except
as set forth in the next sentence, to any other legal entity engaged
primarily in the development, marketing or distribution of one or
more BIOS related system software products as stand alone products
which are competitive to the Phoenix Product(s), other than end use
rights with respect to copies of Intel Products that may be acquired
in the ordinary course of trade from Intel or its customers or
permitted sublicensees. Intel, may, however, grant such rights to
an entity having a subsidiary, group or division thereof which is
engaged in the development, marketing or distribution of BIOS related
system software products as stand alone products which are
competitive to the Phoenix Product(s), and which entity also
substantially engaged in the development, marketing or distribution
of other products as well, provided that Intel shall execute an
agreement with such entity which provides that such subsidiary, group
or division of such entity shall have no access to, and no rights of
any kind with respect to, the Source Code of any Phoenix Product,
Dedicated Development, or any Phoenix intellectual property in
accordance with Sections 2.3 and 2.4.
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2.9 [ TEXT DELETED ].
2.10 Phoenix will not deliver any particular Beta Release or higher
version (i.e. Beta Release 1, Beta Release 2, Beta Release X, or
Production Release) of any Dedicated Development to any customer
until 90 days after the date on which Intel first delivers the same
particular version of such Dedicated Development to any customer.
Furthermore, Phoenix will not deliver any version of any particular
Dedicated Development to any third party before Phoenix is entitled
to deliver a Beta Release version of such Dedicated Development to a
third party. Those portions of Dedicated Developments which solely
support commercially available Intel chips are exempt from this
provision. Those portions of Dedicated Developments which solely
support standard chips from third parties may be exempt from this
provision at Intel's option, and upon written notice to Phoenix by
Intel.
2.11 No rights or licenses are granted, whether expressly, by
implication, or by estoppel, under or with respect to any
Confidential Information or patent, copyright, trade secret,
trademark, maskwork, or other intellectual property right owned or
controlled by either Party, except as expressly set forth in this
Section 2. Furthermore, without limiting the foregoing, Phoenix
acknowledges that it receives no right, license, release or immunity,
directly or indirectly, express, implied or by estoppel in or to
Intel component level or microprocessor technology under any Intel
patent, copyright, trade secret, mask work or other intellectual
property right, including but not limited to Intel X86 microprocessor
chip series including the 80386, 80486 and Pentium-R- or Pentium Pro
microcprocessor chips and related chip sets, or any successor,
future or similar software compatible Intel microprocessor chips and
related chip sets, Flash memory chips or video chips, or ASIC
developed specifically for Intel products.
3. MATTERS RELATING TO DEVELOPMENT OF SOFTWARE BY PHOENIX UNDER
THIS AGREEMENT
3.1 (a) Intel and Phoenix will meet periodically, at Intel's
reasonable request, to discuss Intel's plans [ TEXT DELETED ] and
technology (other than Intel Products). Intel will at its sole
discretion determine the information it will disclose to Phoenix, and
Intel may, as a condition of disclosing information, request that
Phoenix sign other documents or non-disclosure agreements covering
protection of Intel's intellectual property. Intel and Phoenix will
agree in writing on the features and/or functionality for Phoenix
Products that Phoenix will deliver to support such plans and the
schedule therefore. Phoenix will use commercially reasonable efforts
to develop such features and/or functionality in accordance with
such agreement. Failure of Intel and Phoenix to agree upon the
applicable features, functionality, and/or schedule for Phoenix
Products, or failure of Phoenix to use commercially reasonable
efforts to implement such agreement, will, in Intel's sole
discretion, be grounds for termination of this Agreement pursuant to
Section 10.2(b) below and applicable sections of Exhibit B.
(b) In consideration of the provision by Intel of significant Intel
Confidential Information to Phoenix, Phoenix agrees that, during the
term of this Agreement, it will first develop new features for
Phoenix Products for microprocessors [ TEXT DELETED ] and only to the
extent such microprocessors [ TEXT DELETED ].
3.2 Phoenix will deliver to Intel one copy of the Source and
Object Code for the Phoenix Products and Updates and Enhancements
within three (3) working days of the earlier of (i) the date when
shipped as a Production Release to more than one Phoenix customer
and (ii) the date when released internally for pre-release use
within Phoenix in alpha or beta release form if (a) it becomes part
of Phoenix's written corporate plan for new standard product
features which has been approved by Phoenix's chief executive
officer or chief technology officer, or (b) it has been presented to
more than one Phoenix customer as a new product which will be
available to more than one Phoenix customer. In addition, Phoenix
will deliver to Intel Dedicated Developments
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in accordance with milestones in the agreed upon schedule. Furthermore,
no later than June 30, 1996, Phoenix will provide access via electronic
data link to Phoenix's source code database, including any Software due
to Intel under this Agreement, no less frequently than Phoenix updates
its own remote source code databases. Phoenix will deliver to
Intel one copy of the Source and Object Code for any Phoenix Product
or Dedicated Development tailored to or optimized for Intel Products
no later than ten (10) calendar days before delivery to any third
party.
3.3 Phoenix will assign a number of engineers who will comprise the
Dedicated Engineering Team and will render services solely in
connection with development and deployment of Phoenix Products
and Dedicated Developments in or on Intel Products. The
timetable for establishing the Dedicated Engineering Team, which will
initially be comprised of twenty (20) persons, is set forth in
Exhibit D hereto. The number of engineers assigned on an on-going
basis to the Dedicated Engineering Team will be determined in
accordance with a schedule from time to time agreed to by Intel and
Phoenix, but at no time will the number be less than twenty (20);
provided, however, that Intel shall have the right to reduce the
number of engineers on the Dedicated Engineering Team below twenty
(20) if in Intel's reasonable judgment the performance of the
Dedicated Engineering Team has not been satisfactory, and if Intel
has notified Phoenix in writing of such unsatisfactory performance
and specified to Phoenix in writing what Phoenix must do to render
such performance satisfactory to Intel, and then attempted to work
with Phoenix to resolve the unsatisfactory performance for at least
ninety (90) days. If Intel does reduce the number of engineers on
the Dedicated Engineering Team below twenty (20), then Intel shall
be entitled to reduce the Annual Fee by [ TEXT DELETED ] for each
engineer removed, pro-rated for that portion of the Year during which
such engineer is removed; [ TEXT DELETED ].
Without limiting any other provision of this Agreement, the Parties
agree that, with respect to any notification by Intel of
unsatisfactory performance, (i) if Phoenix has previously been given
a notice of unsatisfactory performance within the preceding
twenty-four (24) month period, then the period during which Intel
will be required to work with Phoenix to resolve the unsatisfactory
performance will be reduced to thirty (30) days, and (ii) if Phoenix
has previously been given at least two (2) notices of unsatisfactory
performance within the preceding twenty-four (24) month period, then
Intel may reduce the Dedicated Engineering Team without any
obligation on Intel to first work with Phoenix to resolve the
unsatisfactory performance.
3.4 (a) Intel may request that Phoenix increase the number of
engineers comprising the Dedicated Engineering Team to more than
twenty (20) by giving Phoenix written notice of such request at least
[ TEXT DELETED ] days prior to the date on which Intel is
requesting that such additional engineers become part of the
Dedicated Engineering Team. Phoenix agrees to comply with any
request which would not cause a cumulative increase in the number of
members of the Dedicated Engineering Team by more than
[ TEXT DELETED ] of the number of members in a given Year. In the
event the number of engineers is increased beyond twenty (20), then
Phoenix shall invoice Intel for such additional engineers in
accordance with the rates set forth in Section 4.1 (d).
(b) Intel, in its sole discretion, may reduce the Dedicated
Engineering Team to any number equal or greater to twenty (20) by
giving Phoenix at least [ TEXT DELETED ] days notice prior to the
date on which Intel is requesting that such reduction occur;
provided, however, that the charges invoiced by Phoenix hereunder
for such engineers will be reduced by the then-current
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charge for the particular engineers removed, pro-rated for that portion
of the Year during which such engineers are removed.
3.5 Intel will have the right to require up to twenty (20) members
of the Dedicated Engineering Team to be located at a site or sites,
selected by Phoenix, near facilities where Intel's organization
supporting system-level software on Intel Products are located, such
location presently being Hillsboro, Oregon. Phoenix will have the
right to determine where any members of the Dedicated Engineering
Team beyond such members near Intel's facility will be located. If
Intel moves such Intel facilities or parts thereof to a place which
is more than twenty-five (25) miles from the present site and
requests that Phoenix move all or a portion of the On-Site
Engineering Team to or near the new site, Intel will be responsible
for reimbursing Phoenix for the following actual and reasonable costs
associated with relocating its employees to a new site, to the
extent consistent with Intel's employee relocation reimbursement
policies:
(a) the out of pocket costs for transportation, lodging, meals,
and shipping required to move the members of the On-Site Engineering
Team and the members of their household, equipment, furniture and
fixtures,
(b) the out of pocket transportation, lodging and meals costs for
up to [ TEXT DELETED ] trips for no more than [ TEXT DELETED ] per
trip by no more than [ TEXT DELETED ] Phoenix personnel charged
with locating and establishing a new work site for the On-Site
Engineering Team, and
(c) reimbursement of up to [ TEXT DELETED ] months worth of
rent incurred to terminate any lease relating to the previous site
for the On-Site Engineering Team, provided that such
[ TEXT DELETED ] month maximum reimbursement amount shall be
reduced by [TEXT DELETED] rent for each month of advance notice
beyond [ TEXT DELETED ] months' advance notice that Intel gives
Phoenix prior to moving the On-Site Engineering Team.
If Intel requests that the On-site Engineering Team be split among
multiple sites and Phoenix documents in advance in writing to Intel's
Business Coordinator that Phoenix's reasonable costs are increased by
such multiple sites, and if Intel elects to split the On-site
Engineering Team among multiple sites after receiving such
information, then Intel shall reimburse Phoenix for the difference
in costs to Phoenix between having such multiple sites and having a
single site for the first year of startup and maintaining each such
new site.
3.6 Phoenix will perform the work outlined in Exhibit D, and Intel
and Phoenix representatives comprised of the Coordinators and, if
appropriate, members of the Dedicated Engineering Team and of the
Intel engineers, will meet from time to time (but no less often than
quarterly) to establish by mutual agreement a list of future
deliverables in addition to the work in Exhibit D, including
specifications, milestones, and schedules, for the Dedicated
Engineering Team. Failure to agree on such a list of deliverables or
failure to agree on a license requested by Phoenix pursuant to
Section 3.9 may, in Intel's sole discretion, be treated the same as
failure to provide satisfactory performance as provided in Section
3.3, entitling Intel to reduce the number of members of the Dedicated
Engineering Team.
3.7 Phoenix will have the right to reassign any member of the
Dedicated Engineering Team, provided that it replaces that member
with another person with equivalent skills. Intel will have the right
to request the immediate removal of any member of the Dedicated
Engineering Team for security or safety reasons or any other reason
under Intel's personnel policies for which employees can be
dismissed, upon written notice to Phoenix. Phoenix will have a
reasonable period of time, but not more than [ TEXT DELETED ]
days, to replace such member.
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3.8 In addition, Intel and Phoenix will discuss and attempt to
resolve any assertion by Intel that a member of the Dedicated
Engineering Team fails to meet reasonable performance standards. If
Intel and Phoenix agree that such member should be removed from the
team, Phoenix will have a reasonable period of time, but not more
than [ TEXT DELETED ] days, to replace such member.
3.9 In the event that Intel and Phoenix agree that any features
and/or functionality for Phoenix Products developed or to be
developed by Phoenix pursuant to Section 3.1(a) requires a license
under one or more patent claims and/or copyrights of Intel
specifically identified by Phoenix in writing that cover such
features and/or functionality and are necessary for Phoenix to make,
have made, use, sell, lease, copy, modify, or distribute such
features and/or functionality embodied in software provided such
software is incorporated only in Phoenix Products, and Phoenix and
Intel are unable to agree to reasonable terms for such license, then
Phoenix shall be relieved of its obligations under Section 3.1(a) to
develop and support such features and/or functionality for Intel.
Intel may elect to grant or not grant any such license in its sole
discretion. If Intel does agree to grant such a license, such grant
shall be pursuant to a separate written agreement between the
parties. In the event that Intel does not agree with Phoenix that a
license from Intel under one or more patent claims or copyrights
specifically identified in writing by Phoenix is required in order
for Phoenix to make, have made, use, sell, lease, copy, modify or
distribute products incorporating such features and/or functionality
embodied in software, then Intel will either promptly so state to
Phoenix in writing or else Phoenix shall be relieved of its
obligations under Section 3.1(a) to develop and support such a
feature for Intel.
In the event that Intel and Phoenix agree that any Dedicated
Development developed or to be developed by Phoenix under Section 3.6
requires a license under one or more patent claims and/or copyrights
of Intel specifically identified by Phoenix in writing that cover
such Dedicated Development and are necessary for Phoenix to make,
have made, use, sell, lease, copy, modify, or distribute such
Dedicated Development embodied in software provided such software is
incorporated only in Phoenix Products, and Phoenix and Intel are
unable to agree to reasonable terms for such license, then Phoenix
shall not be required hereunder to devote more than
[ TEXT DELETED ] of the Dedicated Engineering Team to the
development and support of such Dedicated Development for Intel.
Intel may elect to grant or not grant any such license in its sole
discretion. If Intel does agree to grant such a license, such grant
shall be pursuant to a separate written agreement between the
parties. In the event that Intel does not agree with Phoenix that a
license from Intel under one or more patent claims or copyrights
specifically identified in writing by Phoenix is required in order
for Phoenix to make, have made, use, sell, lease, copy, modify or
distribute products incorporating such Dedicated Development embodied
in software, then Intel will either promptly so state to Phoenix in
writing or else Phoenix shall not be required hereunder to devote
more than [ TEXT DELETED ] of the Dedicated Development Team to
the development and support of such Dedicated Development for Intel.
3.10 Phoenix will submit a monthly report in a format acceptable to
both Parties which includes as a minimum a summary of status of all
Phoenix activities then underway under this Agreement, a description
of the technical design concepts or approach for each activity,
progress against schedule, and significant developments and problems
during the reporting period. Intel's receipt of this report shall
in no way be deemed to constitute input from Intel with respect
designs, specifications, and instructions for Phoenix Products and
Dedicated Developments.
3.11 Phoenix will submit to Intel a resume (but without the name of
the individual on such resume) for every engineer which Phoenix
intends to assign to the Dedicated Engineering Team not less than two
weeks before such assignment. Intel may review and comment on such
resumes, but selection of qualified personnel is at Phoenix's sole
discretion.
4. INTEL OBLIGATIONS
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4.1 COMPENSATION: In consideration of the grant of the licenses
and the other rights given to Intel and work performed by Phoenix
hereunder, Intel agrees to pay Phoenix the amounts set forth in this
Section 4 and Exhibit B, which shall be the only payments due Phoenix
for such licenses, rights and work.
(a) ANNUAL FEE: Intel will pay Phoenix a non-refundable Minimum
Annual Fee that shall accrue and be earned quarterly, with the first
quarter of the Minimum Annual Fee accruing on the date of this
Agreement. The amount of each Minimum Annual Fee during the Term is
set forth in Exhibit B. Each Minimum Annual Fee will be payable in
four equal quarterly installments on or before the first business day
of each calendar quarter; provided, however, that the first quarterly
installment of [ TEXT DELETED ] shall be due concurrently with the
execution of this Agreement and shall represent the portion of the
Annual Fee through the quarter ending March 31, 1996.
(b) PER COPY ROYALTIES: In addition to the Minimum Annual Fee
amount, for each Year, Intel will pay Phoenix a per copy royalty for
each copy of an Intel Product which contains a Phoenix Product and/or
a Dedicated Development (but not for copies of Tools other than as
set forth in Section 4.1(e) below) which Intel and its sublicensees
distribute to customers in any Year in excess of the amount referred
to in Exhibit B as "Schedule Units (M)".
(c) SOURCE CODE FEES: If Intel sublicenses any Source Code
version of Phoenix Products or Dedicated Developments to any
customer, Intel will pay Phoenix the Source Code license fee set
forth in Exhibit B hereto.
(d) FEES FOR DEDICATED ENGINEERING TEAM: The charge for the
first twenty (20) members of the Dedicated Engineering Team per Year
is included in the Minimum Annual Fee described above. Intel will pay
Phoenix for each additional member at the annual rate of
[ TEXT DELETED ] per engineer added by Phoenix at Intel's request
in accordance with Section 3.4 above, if during the Year prior to the
Year during which such engineer is first requested Intel and its
sublicensees shipped less than the Schedule Units (as defined in
Exhibit B) for such prior year. Intel will pay Phoenix for each such
additional member at the annual rate of [ TEXT DELETED] per
engineer added by Phoenix at Intel's request in accordance with
Section 3.4 above, if during the Year prior to the Year during which
such engineer is first requested Intel has shipped more than the
Schedule Units for such prior Year ; provided, however, that if the
request is made in calendar 1997, the [ TEXT DELETED ] will apply
if during the prior Year Intel and its sublicensees shipped
[ TEXT DELETED ] of the Schedule Units for calendar year 1996. Once
the annual rate for an additional engineer is determined in
accordance with this Section 4.1(d), such rate shall remain fixed at
such amount for each Year thereafter during which such engineering
position is rendering services to Intel. The amount will be prorated
based on the portion of the Year during which the additional engineer
performs services as part of the Dedicated Engineering Team.
(e) THIRD PARTY SOFTWARE: Tools may include Software developed
by one or more third parties for which Phoenix is required to pay
royalties or license fees to such third parties. Intel will
reimburse Phoenix for any such royalties or license fees which are
based on [ TEXT DELETED ] with respect to copies of Tools utilized
by Intel hereunder, provided that Phoenix has disclosed and Intel has
approved such royalties or license fees in advance. If Intel does
not approve any particular royalties or license fees, then Phoenix
will not supply any Tool hereunder containing the third party
Software which requires such royalties or license fees. Intel will
not be required to reimburse Phoenix for any [ TEXT DELETED ]
which Phoenix becomes obligated
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to pay to any third party to obtain licensing or sublicensing rights
with respect to Software incorporated into Phoenix Products and/or
Dedicated Developments.
4.2 ROYALTY EXCLUSIONS
No royalties will be payable by Intel pursuant to Sections 4.1(b)
and 4.1(c) for copies of Phoenix Products and/or Dedicated
Developments, which are i) used internally by Intel, its sublicensees
and/or authorized representatives for software development or
customer support, ii) used by Intel, its sublicensees and/or
authorized representatives for evaluation, demonstration or marketing
purposes (provided such party does not receive a royalty or other fee
beyond manufacturing costs), iii) used by Intel, its sublicensees,
and/or authorized representatives internally for demonstration,
training, evaluation, support and similar purposes, iv) shipped by
Intel, its sublicensees and/or authorized representatives as
replacement copies for copies found to be defective in materials,
manufacture or reproduction, v) used by Intel, its sublicensees
and/or authorized representatives as archival or back up copies, vi)
used by Intel, its sublicensees, and/or authorized representatives
solely for compatibility testing, or vii) transferred from one
end-user to another in accordance with any applicable licenses,
provided the transferor does not retain any copies.
4.3 MAINTENANCE OF RECORDS; AUDIT RIGHTS
(a) For a period of two (2) years following payment by one Party of
any amount owed the other Party hereunder, each Party will maintain any
records it may have with respect to such payment, which in the case of
Intel shall include records showing the number of units of Intel
Products or other products incorporating Phoenix Products or Dedicated
Developments shipped by Intel and/or its sublicensees with respect to
any Year for which a Per Copy Royalty may be due, and in the case of
Phoenix shall include records relating to reimbursable costs under
Section 3.5, to third party software royalties or license fees under
Section 4.1(e) and to charges for additional engineering services
rendered pursuant to Section 9.4. In the case of Intel, such records
will include any records received by Intel from its sublicensees or
generated by Intel relating to amounts owed by its sublicensees
as a result of the sublicense.
(b) Each Party may, at its own expense and upon at least five
(5) business days' notice to the other Party, cause an audit to be
performed by an independent auditor acceptable to both Parties of the
records of the other Party described in Section 4.3(a) above. The
audit shall be for the purpose of confirming the accuracy of the
payment of fees and royalties or other charges in accordance with
this Agreement (including without limitation Exhibit B attached
hereto) and the obtaining of appropriate licenses with sublicensees.
The auditor will report to the Party commissioning the audit only
such information obtained during the course of such audit as is
necessary to determine whether the payments made by the other Party
hereunder were correct and/or appropriate licenses with sublicensees
were obtained. Each Party may cause such audits to be conducted not
more frequently than once in any Year and only during normal business
hours and at the other Party's facility(ies) where such records are
kept. If any such audit discloses an error in payment by either Party
of amounts owed the other Party in an amount greater than 5% of the
total amounts owed for the period audited, the audited Party will
also reimburse the commissioning Party for all expenses (including
the fees and expenses incurred by the independent third party
referred to in the first sentence hereof) in connection with such
audit.
4.4 PAYMENT
(a) Phoenix will issue Intel an invoice for any charges due
hereunder for additional engineering help requested from Phoenix
pursuant to Section 9.4 below, and for any charges due pursuant to
Sections 3.4 and 3.5 above and Sections 4.1(d) and 11(a)(ii) below.
Such amounts shall be payable forty-five (45) calendar days after the
close of the month in which the invoice is received.
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(b) Intel will submit Shipment and Royalty Reports to Phoenix
within forty-five (45) days after the end of each calendar
quarter during the Term and any period thereafter during which
Intel may have per unit royalty payment or Source Code sublicense
fee payment obligations hereunder to Phoenix under Sections 4.1(b),
4.1(c), and 4.1(e). Such reports will indicate the shipments (if
any) by Intel or its sublicensees with Phoenix Products or
Dedicated Developments in excess of Schedule Units for which a per
copy royalty has not previously been paid, and the names of any
sublicensees to whom Intel has issued a Source Code sublicense
during such quarter and the version of the Source Code sublicensed.
Such reports will be accompanied by a check for the amount of the
Source Code license fees due Phoenix pursuant to Exhibit B hereto
for any Source Code sublicenses and for the amount of the aggregate
per copy royalties due Phoenix, if any, for such quarter.
5. WARRANTIES
5.1 Each Party warrants and represents to the other that it has all
authority to enter into this Agreement and to perform the obligations
hereunder.
5.2 Phoenix warrants and represents that it has all right, title,
and interest and/or license rights in Phoenix Products and Dedicated
Developments (other than those portions of jointly owned Dedicated
Developments created by Intel) necessary to grant the licenses set
forth herein and has not taken any action or suffered any action to
be taken with respect to the Phoenix Products and/or Dedicated
Developments which would restrict or affect the rights of Intel and
its sublicensees hereunder.
5.3 Phoenix warrants and represents that no third party has any
ownership right in, title to, or lien on any intellectual property of
Phoenix licensed under this Agreement to the best of its knowledge
and belief.
5.4 Phoenix warrants and represents that the information contained
in the Certificate of Originality set forth in Exhibit E hereto is
current, accurate, and complete as of the Effective Date to the best
of its information and belief. Furthermore, Phoenix warrants and
represents that it has used best efforts to verify that the
information set forth in Exhibit E is current, accurate, and complete
as of the Effective Date.
5.5 Phoenix warrants and represents that any Software as delivered
by Phoenix to Intel is free of any harmful code, defined for purposes
of this Agreement as any computer code, programming instruction, or
set of instructions which have been designed with the ability to
damage, interfere with, or otherwise adversely affect computer
programs, data files, or hardware, without the consent or intent of
the computer user, including without limitation, self-replicating and
self-propagating programming instructions commonly referred to as
viruses and worms.
5.6 Phoenix warrants that each Production Release of the Phoenix
Products and Dedicated Developments (other than Tools and those
portions of jointly owned Dedicated Developments created by Intel
that are not incorporated into Phoenix Products), as delivered by
Phoenix to Intel will perform in accordance with the Phoenix
Specifications applicable to such Phoenix Product or Dedicated
Development, until [ TEXT DELETED ] after Phoenix ceases to ship a
version of a Phoenix Product or Dedicated Development to any third
party. Phoenix will, at its own expense, within the time frames
specified in Exhibit F, correct any conditions discovered in the
Phoenix Products that cause such products not to perform in
accordance with its Specifications ("Errors") provided that (a) Intel
reports the Errors to Phoenix in writing and (b) Intel provides
access (which
CONFIDENTIAL TREATMENT REQUESTED
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at Intel's option, may be on-site at Intel) to at least two (2)
systems in which the problems can be reproduced (if Phoenix
does not have such systems available).
If Phoenix is unable to correct any Error after reasonable
efforts, Intel may at Intel's option either (a) correct the Error and
collect from Phoenix its reasonable actual direct costs of doing so
or (b) Intel may receive a refund from Phoenix; in each case the
amount to be paid to Intel shall not exceed the amount paid or owing
to Phoenix hereunder for the actual number of units of such Phoenix
Product or Dedicated Development containing such Error.
5.7 NEITHER PARTY MAKES ANY WARRANTIES, EITHER EXPRESS OR IMPLIED,
WITH RESPECT TO THE PHOENIX PRODUCTS, TO DEDICATED DEVELOPMENTS OR TO
UPDATES AND ENHANCEMENTS, OR TO ANY OTHER SOFTWARE OR INFORMATION,
OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS SECTION 5, AND EACH
PARTY EXPRESSLY DISCLAIMS ANY SUCH WARRANTIES, INCLUDING BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE.
5.8 Nothing contained in this Section 5 shall diminish Phoenix's
obligations of support set forth in Section 9 and Exhibit F hereto.
6. INDEMNIFICATION
6.1 PRODUCT LIABILITY
Phoenix agrees to defend, indemnify, and hold Intel, its officers,
employees, agents, representatives, sublicensees, and/or customers,
harmless from and against any and all third-party claims, damages,
actions, liabilities, costs, and expenses arising out of or in
connection with damage to any property and personal injury or death
by whomever suffered to the extent resulting from (i) any defect in
the Phoenix Products or Dedicated Developments or breach of any
warranty of Phoenix set forth in Section 5 above, or (ii) any
negligent or willful act of Phoenix.
6.2 [ TEXT DELETED ]
(a) [ TEXT DELETED ]
(b) [ TEXT DELETED ]
(i) [ TEXT DELETED ]; or
(ii) [ TEXT DELETED ]; or
(iii) [ TEXT DELETED ]; or
(iv) [ TEXT DELETED ]; or
(v) [ TEXT DELETED ].
[ TEXT DELETED ].
7. LIMITATION OF LIABILITY
CONFIDENTIAL TREATMENT REQUESTED
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REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS
ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL EITHER PARTY BE LIABLE
TO THE OTHER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT,
INCIDENTAL OR SPECIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY'S TOTAL LIABILITY AND
INDEMNITIES UNDER THIS AGREEMENT FOR ALL CAUSES OF ACTION ON A
CUMULATIVE BASIS ARISING DURING ANY PARTICULAR YEAR EXCEED THE
PAYMENTS ACTUALLY MADE BY INTEL HEREUNDER DURING THE CALENDAR YEAR
PRECEDING THE YEAR DURING WHICH THE CLAIM UPON WHICH THE LIABILITY OR
INDEMNITY IS BASED WAS FIRST MADE (OR, IN THE CASE OF CLAIMS ARISING
BETWEEN THE EFFECTIVE DATE OF THIS AGREEMENT AND DECEMBER 31, 1996,
SUCH PAYMENTS ACTUALLY MADE BY INTEL HEREUNDER DURING SUCH PERIOD);
PROVIDED, HOWEVER THAT THE PRECEDING CLAUSE SHALL NOT APPLY TO LIMIT
PAYMENTS OWED BY INTEL TO PHOENIX UNDER SECTION 4.1, PHOENIX'S
OBLIGATIONS UNDER SECTION 6.1, PHOENIX'S OBLIGATIONS UNDER SECTION 6.2 TO
THE EXTENT ARISING OUT OF WILLFUL INFRINGEMENT BY SUCH PARTY, AND
PHOENIX'S OBLIGATIONS OF REFUND PROVIDED FOR IN SECTION 5.5.
8. CONFIDENTIALITY
8.1 (a) During the Term of this Agreement, each Party will hold
any of the other's Confidential Information (as defined in the next
paragraph) in confidence and will: (i) use the same degree of care to
prevent unauthorized disclosure of the Confidential Information and
unauthorized disclosure or unauthorized use of the Source Code that
the receiving Party uses with its own information of like nature (but
in no event less than reasonable care), (ii) limit disclosure of the
Confidential Information, including any materials regarding the
Confidential Information that the receiving Party has generated, to
such of its employees and contractors or sublicensees as have a need
to know the Confidential Information to accomplish the purposes of
this Agreement, (iii) advise its employees, agents, contractors and
sublicensees of the confidential nature of the Confidential
Information and of the receiving Party's obligations under this
Agreement.
(b) For purposes of this Agreement, the term "Confidential
Information" refers to the following items relating to the
confidential and proprietary information, including trade secrets, of
the disclosing Party: (i) all written materials provided by the
disclosing Party that are clearly marked as confidential, (ii) any
tangible materials provided by the disclosing Party that are clearly
marked as confidential, and (iii) all information that is orally or
visually disclosed by the disclosing Party if it is identified as
confidential at the time of disclosure and is reduced to written
disclosure delivered to the receiving Party within thirty (30) days
after the original disclosure. All Source Code will be deemed to be
"Confidential Information." "Confidential Information" will not
include, even if marked as confidential, materials or information
which: (i) is rightfully known without obligations of
confidentiality by the receiving Party, (ii) is or becomes public
knowledge through no wrongful act of the receiving Party, its agents,
employees, sublicensees or affiliates, (iii) is rightfully received
by the receiving Party from another Party authorized by the
disclosing Party to disseminate such materials or information, (iv)
is independently developed by the receiving Party without breach of
this Agreement, or (v) is approved in writing for release by the
disclosing Party. Any employee or contractor or sublicensee of the
receiving Party having access to the Confidential Information will be
required to sign a non-disclosure agreement protecting the
Confidential Information if not already bound by such a
non-disclosure agreement.
(c) Each Party acknowledges and agrees that unauthorized use or
disclosure of such Source Code would cause the other Party
irreparable harm which may not be adequately compensated by
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monetary damages and that, accordingly, the other Party is entitled to
preliminary and injunctive relief to remedy any actual or threatened
unauthorized use or disclosure of such Source Code.
(d) Notwithstanding any other provision hereof, neither Party's
receipt of or access to the Source Code of the other Party pursuant
to this Agreement shall create any obligation on the part of such
Party to limit or restrict the assignment of its employees; provided,
however, that (i) Intel agrees that no personnel who have had access
to any Phoenix Source Code hereunder in tangible or human readable
form will, for at least [ TEXT DELETED ], be assigned to work on
any project (other than outside standard committees or similar
activities) with technical personnel from, or with any Source Code of
SystemSoft Corporation or Award Software, and (ii) Phoenix agrees
that no personnel who have had access to any Confidential Information
of Intel provided to Phoenix under this Agreement in tangible or
human readable form will, for at least [ TEXT DELETED ], be
assigned to work on any project (other than outside standard
committees or similar activities) to develop software or other
products to be used with any processor, motherboard, or multi-chip
module manufactured by a party other than Intel. Nothing in this
Agreement shall be construed as preventing employees of one Party who
have had access to such Source Code or Confidential Information of
the other Party from drawing upon or using any skills, knowledge,
talent or experience of a general nature acquired by them in the
course of working with such Source Code or Confidential Information,
provided that (i) such employees may not refer directly to such
Source Code or Confidential Information of the other Party in
tangible form when working on equivalent or substitute products or
other products of such Party, and (ii) such employees do not infringe
copyrights or patents of the other Party not otherwise within the
scope of any licenses granted to such Party hereunder.
8.2 Except to the extent required by law or judicial order or
except as provided herein, neither Party shall disclose this
Agreement or any of its terms without the other's prior written
approval, which approval will not be delayed or unreasonably
withheld. Either Party may disclose this Agreement to the extent
required by law or judicial order, or rules or regulations of any
federal, state, or local organization, provided that the disclosing
Party will notify the other Party of the portions of the Agreement it
intends to disclose promptly before such disclosure and will
cooperate with the other Party to the maximum extent possible to seek
confidential treatment with respect to the disclosure if requested by
the other Party.
8.3 Prior to the execution of this Agreement, the parties will
agree on the content of a joint press release announcing the
existence of this Agreement, which press release will be issued as
mutually agreed by the parties. Prior to any public announcement
about the Transition Plan, the parties will agree on the content of a
joint press release announcing information about the Transition Plan,
which press release will be issued as mutually agreed by the parties.
8.4 Neither Party will be required to disclose to the other any confidential
information of any third party without having first obtained such
third party's prior written consent.
8.5 The provisions of this Section 8 shall survive for a period of
five (5) years (and indefinitely with respect to Source Code of the
Phoenix Products and Dedicated Developments and any Confidential
Information of Intel related to Intel processor technology or Intel
Source Code) from the date of disclosure.
9. SUPPORT
9.1 Intel will provide all first level support to its customers.
9.2 Phoenix will provide support to Intel as specified in Exhibit F.
9.3 Phoenix will provide training to Intel as specified in Exhibit D.
CONFIDENTIAL TREATMENT REQUESTED
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9.4 Intel may obtain additional engineering services from Phoenix
outside the scope of the Dedicated Engineering Team, by submitting a
written request to Phoenix specifying the requested work to be
performed and the requested dates of completion. Intel will provide
such additional information requested by Phoenix in order to enable
Phoenix to prepare a Statement of Work which contains a detailed
description of the work to be performed, the specifications for the
work, the deliverables and the estimated completion dates of the
deliverables. No work will commence by Phoenix until the parties
mutually agree to the Statement of Work. Phoenix will be compensated
for all services rendered pursuant to the Statement of Work at a rate
of [ TEXT DELETED ] per day per engineer plus all necessary travel
and living expenses incurred if such work is rendered outside of the
premises of Phoenix and authorized in advance by Intel.
10. TERM AND TERMINATION
10.1 TERM. The Term of this agreement shall commence with the
Effective Date and expire on December 31, 2002, unless terminated
earlier as provided herein.
10.2 TERMINATION. This Agreement may be terminated under the follow
circumstances and conditions:
(a) CONVENIENCE. Intel may terminate this Agreement for
convenience at any time after the third anniversary of the date of
this Agreement. Such termination will be effective twelve (12)
months after the date on which written notice of such termination is
given by Intel. Intel may provide such termination notice any time
after the second anniversary date of this Agreement.
(b) BREACH. Either Party may terminate this Agreement upon
forty-five (45) days written notice if the other Party breaches any
of its material obligations hereunder. Termination will be effective
at the end of the notice period, unless the breach is cured during
the forty-five (45) day notice period.
10.3 EFFECT OF TERMINATION. The following is applicable upon
termination or expiration of this Agreement:
(a) The confidentiality provisions of this Agreement will
survive termination or expiration hereof in accordance with the
provisions of Section 8.5 above. In addition, the provisions of
Sections 1, 2.6, 2.8(b), 2.9, 2.11, 4 (except section 4.1(d)), 6-7,
10, 11(a), 12 and 14 will survive termination or expiration of this
Agreement. In addition, the provisions of Section 5 will survive
termination or expiration of this Agreement, provided, however, that
the warranty set forth in Section 5.5 shall apply only for a period
of six (6) months after expiration or termination and only with
respect to products actually shipped by Intel or its sublicensees as
of the date of such expiration or termination.
(b) [ TEXT DELETED ] If Phoenix terminates this Agreement pursuant to
Section 10.2(b) above, Intel and its sublicensees will have no further
rights with respect to Phoenix Products and Dedicated Developments from
and after the date of such termination and Intel will return to Phoenix
all copies of Phoenix Products and Dedicated Developments, except for a
reasonable number of copies which it may maintain for archival and
support purposes only. Intel and its sublicensees will also have the
right to distribute Phoenix Products in inventory and to make copies for
work in process for [ TEXT DELETED ] days after such termination;
provided, however, any Phoenix Products so
CONFIDENTIAL TREATMENT REQUESTED
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<PAGE>
distributed will be distributed in accordance with all other provisions
hereof and provided, further, that Intel shall pay fees and royalties in
amounts determined as though this Agreement had not been so terminated.
(c) [ TEXT DELETED ] In no event, will Intel be obligated to pay any
fees or royalties for use of Phoenix Products or Dedicated Developments
following expiration or termination, except as set forth in Exhibit B.
(d) Phoenix will not be required to provide Intel with any
Phoenix Products, Updates and Enhancements or Dedicated Developments,
with the services of the Dedicated Engineering Team, or with any
support (except as explicitly set forth herein) with respect thereto
from and after the date of termination or expiration of the Agreement.
11. TREATMENT OF EMPLOYEES
(a) Except as provided herein, neither Party may actively
solicit the other's employees during the term of this Agreement and
for one year thereafter. For purposes of this provision, the term
"actively solicit" shall not include a Party's activities related to
publishing job postings or listings to the Party's employees or job
applicants in general. Notwithstanding the foregoing, nothing in
this Agreement shall prevent either Party from responding to an
employment inquiry received in the ordinary course of business from
the other Party's employees. Furthermore, if notice of Termination
is given by Intel, or if this Agreement expires or is terminated for
any reason other than by Phoenix pursuant to Section 10.2(b) hereof,
Intel will have the right to make direct offers of employment to one
or more members of the On-Site Engineering Team, but not before:
(i) forty-five (45) days after any notice of termination by
Intel under Section 10.2(b); or
(ii) with respect to each such member, the earlier of (a)
sixty (60) days or (b) the day upon which Phoenix makes a direct
offer to such member after any notice of termination by Intel under
Section 10.2(a). In the event that Intel hires any such members of
the On-Site Engineering Team after the expiration of the waiting
period, then (1) the number of members of the Dedicated Engineering
Team that Phoenix shall be obligated to supply hereunder shall be
reduced by the number of such engineers hired by Intel, and (2) the
Annual Fees to be paid hereunder by Intel will be reduced by amounts
equal to amounts in Section 3.3 for unsatisfactory performance or in
Section 3.4(b) for reductions in the size of the Dedicated
Engineering Team by the pro-rated amount for such engineers hired by
Intel that Intel would otherwise have been required to pay hereunder
had Phoenix supplied such engineers, provided, however, that Intel
shall pay Phoenix a one-time fee equal to [ TEXT DELETED ] of the
annual charge hereunder for each engineer hired by Intel.
Intel agrees that, during any applicable waiting period, it will
not recruit any such engineers other than to issue a general notice
stating only that Intel has the right to make offers of employment
after the applicable waiting period.
(b) Phoenix acknowledges that the following terms apply to
employment of Phoenix engineers granted access to Intel's facilities:
(i) Intel may exercise routine supervisory administrative and
technical control of the activities of such Phoenix engineers.
Notwithstanding the foregoing, such Phoenix engineers will, at all
times and for all purposes, remain employees of Phoenix.
CONFIDENTIAL TREATMENT REQUESTED
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<PAGE>
(ii) Phoenix will pay the wages or salaries of such Phoenix
engineers and will withhold all Federal, state and local taxes, if
any, and all FICA contributions payable on such wages or salaries.
(iii) Phoenix will have the sole and exclusive responsibility
for establishing policies and procedures with respect to employment
of such Phoenix engineers. With the exception of Intel's right to
request removal of Phoenix engineers pursuant to Section 3 of this
Agreement, Phoenix will have exclusive control of such Phoenix
engineers with respect to hiring, firing, discipline, compensation,
hours of work, benefits and other terms and conditions of employment,
provided that Phoenix will not make any rules or implement any
conditions with respect to employment of such employees that, in any
way, conflicts with the regular Intel safety, security and
information security rules and regulations related to Intel's
facilities.
(iv) Phoenix will maintain at its sole cost and expense, with
nationally recognized companies, Comprehensive General Liability
Insurance with limits not less than $1,000,000 U.S. per incident and
a Broad Form Extended coverage endorsement, including but not limited
to, Blanket Contractual, Product-Completed Operations, Premises
Operations and Independent Contractors. Phoenix will also maintain
Statutory Worker's compensation coverage, including Broad Form All
State's Endorsements and Employers Liability in the amounts required
by law.
12. OWNERSHIP OF PHOENIX PRODUCTS, DEDICATED DEVELOPMENTS, INTEL
DEVELOPMENTS AND JOINTLY DEVELOPED PRODUCTS
12.1 Phoenix will have all ownership rights (including patents,
copyrights, trade secrets and other intellectual property rights)
with respect to Phoenix Products and Dedicated Developments developed
by Phoenix.
12.2 Intel will have all ownership rights (including patents,
copyrights, trade secrets and other intellectual property rights)
with respect to Intel Developments.
12.3 Phoenix and Intel will identify and specify in writing and in
advance of any development effort any technology, Software and/or
products which will be jointly owned by Phoenix and Intel pursuant to
this Agreement, and only that technology, Software and/or those
products which are so specified in writing shall be jointly owned,
and such joint ownership shall be without rights or obligations of
accounting. If the parties do not specify that a particular item of
technology or Software or a particular product that is jointly
developed by Phoenix and Intel is to be jointly owned, then the
parties intend that such technology, Software and/or product will not
be a joint work, and each Party will have separate ownership of those
portions of such technology, Software and/or products that it created
or developed. With respect to technology, Software and/or products
that are jointly owned, either Party may seek patent protection, or
trademark and copyright registrations, with respect to such jointly
owned technology, Software and/or products in the names of the
parties as joint owners, and the parties shall share equally the cost
of doing so. In the event that one Party elects not to share in the
cost of seeking patent protection, or trademark and copyright
registrations, with respect to a particular item of such technology,
Software and/or products, then (i) the other Party may do so in its
own name only and at its sole expense, (ii) the Party electing not to
share in such expenses will execute any documents and take any action
reasonably requested to allow the other Party to seek such protection
and registrations in its name only, and (iii) the Party in whose name
such patent or trademark or copyright registration issues shall
grant, and does hereby grant to the other Party, a non-exclusive,
worldwide, perpetual, irrevocable, unrestricted, royalty free
license, with full rights to sublicense, under the same.
13. DEVELOPMENT OF A TRANSITION PLAN
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The Parties will work together to mutually agree, on or before
February 15, 1996, to a written plan (the "Transition Plan") that
defines the work, specifications, milestones, schedule, staffing, any
rights Intel may choose to grant Phoenix in any intellectual property
which Intel may choose to disclose to Phoenix, and/or deliverables
(the "Transition Services") to be performed by Phoenix to modify the
Phoenix Products as necessary to enable them to support the range of
features required by Intel to transition to the Phoenix Products for
use with and/or incorporation into the Intel Products. The
Transition Plan will also include performance metrics required for
Phoenix to earn the bonus of [ TEXT DELETED ] for calendar 1996
set forth in Exhibit B. The Transition Plan will provide that
Phoenix will use up to ten (10) members of the Dedicated Engineering
Team, and at least an equal number of skilled Phoenix engineers not
on the Dedicated Engineering Team, during calendar 1996 to perform
the Transition Services. Intel will assign the equivalent of at
least two (2) full time senior engineers skilled in Intel's desktop
computer products and the equivalent of at least two (2) full time
senior engineers skilled in Intel's server computer products to
assist Phoenix in performing the Transition Services.
In the event the Parties are unable to agree to a Transition Plan
by February 15, 1996 (or such extended period as the Parties may
agree), then Intel may terminate this Agreement upon at least five
(5) days advance written notice to the other Party. In such event:
(i) the [ TEXT DELETED ] payment to be made by Intel hereunder
upon execution of this Agreement as provided in Section 4.1(a) will
remain nonrefundable; (ii) each Party will, within five (5) business
days, return to the other Party all Source Code of the other Party
and all tangible embodiments of the other Party's Confidential
Information; and (iii) notwithstanding the provisions of Section
10.3(a) above, the following provisions of this Agreement shall
remain in effect: Sections 1, 2.11, 5.7, 6-8, 12, and 14.
14. MISCELLANEOUS
14.1 The respective rights and obligations of each of the parties
hereto may not be assigned or delegated, in whole or in part, by
operation of law or otherwise, without the express written consent of
the other Party. Subject to the foregoing, this Agreement will be
binding upon and inure to the benefit of the respective successors
and assigns of the parties.
14.2 Any written notice required or permitted to be made or given
under this Agreement will be deemed delivered upon receipt if
delivered via U.S. certified mail, return receipt requested:
If to Phoenix: If to Intel:
Phoenix Technologies Ltd. Intel Corporation
2770 De La Cruz Boulevard Robert Noyce Building
Santa Clara, CA 95050 2200 Mission College Blvd.
Attn: Vice President, Santa Clara, CA 95052-8119
Corporate Marketing Attention: General Counsel
M/S SC4-203
with a copy to:
Phoenix Technologies Ltd. Intel Corporation
2770 De La Cruz Boulevard 5200 N.E. Elam Young Parkway
Santa Clara, CA 95050 Hillsboro, OR 97124-6497
Attn: Legal Department Attention: Legal Department
M/S HF3-03
14.3 No amendment or modification of this Agreement shall be
effective unless it is set forth in a writing which refers to the
particular provision(s) so amended or modified and is executed by
authorized representatives of both parties. No failure or delay by
either Party in exercising any
CONFIDENTIAL TREATMENT REQUESTED
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right, power or remedy will operate as a waiver of any such right, power
or remedy and any waiver as to a breach of any particular provision will
not be deemed to be a waiver of any future breach of that same provision.
14.4 If any provision of this Agreement or the Exhibits is held by a
court of competent jurisdiction to be unenforceable or contrary to
law, the remaining provisions of this Agreement and the Exhibits will
remain in full force and effect.
14.5 This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without reference to its
choice of law provisions, and United States patent and copyright laws.
14.6 Each Party will, at its own expense, comply with any
governmental law, statute, ordinance, administrative order, rule or
regulation relating to its duties under this Agreement and the
Exhibits and shall procure all licenses and pay all fees and other
charges required thereby. Neither Party will export or reexport or
authorize or permit its employees, agents, subcontractors or
sublicensees to export or reexport any Phoenix Products, Dedicated
Developments or other Software supplied hereunder to any country
specified as a prohibited destination in applicable federal, state
and local laws, regulations and ordinances, including the Regulations
of the U.S. Department of Commerce and/or the U.S. Department of
State, without first obtaining any requisite approval.
14.7 All rights and remedies, whether conferred hereunder, or by any
other instrument or law will be cumulative and may be exercised
singularly or concurrently. Failure by either Party to enforce any
term will not be deemed a waiver of future enforcement of that or any
other term. The terms and conditions stated herein are declared to
be severable.
14.8 Neither Party will be held liable for failure to fulfill any of
its obligations hereunder if such failure is caused by flood, extreme
weather, fire, or other natural calamity, acts of governmental agency
or similar causes beyond the control of such Party.
14.9 This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original, and all of which when taken
together shall constitute one single agreement between the parties.
14.10 For at least thirty (30) days before commencing any litigation,
each Party agrees to attempt to resolve any dispute hereunder through
good faith negotiations.
14.11 This Agreement, including the Exhibits, sets forth the entire
agreement between the parties with respect to the subject matter
hereof and supersedes all prior communications, both written and
oral, with respect to such subject matter.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective authorized representatives as of the
date first above written.
PHOENIX TECHNOLOGIES LTD. INTEL CORPORATION
By: /S/Robert J. Riopel By: /s/Craig Barrett
----------------------- --------------------------
Name: Robert J. Riopel Name: Craig Barrett
--------------------- -------------------------
Title: VP, Finance Title: Executive Vice President
-------------------- ------------------------
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EXHIBIT A
PHOENIX PRODUCTS
The following list of Phoenix Products will be delivered to Intel in both
Object Code and Source Code formats except where noted below. The Source Code
for all products is in the following languages : assembler level code, C
and/or C++.
PHOENIX PRODUCTS
- ----------------
PHOENIXBIOS VERSION 4.0 FOR INTEL PROCESSORS
PhoenixBIOS Version 4.0 and Phoenix ServerBIOS Version 4.0 are BIOS
software, that support EISA, PCI, and PnP extensions, that emulate the
Basic Input/ Output System (BIOS) residing in the read-only memory of the IBM
Personal Computer AT and provides all of the features of the IBM PC/AT ROM
BIOS, including POST and SETUP ,except support for the Basic programming
language. The software executes from read-only memory and has been adapted
a.) to support the Intel 386-TM-, Intel 486-TM-, Pentium-R- and Pentium Pro
processors, b.) to conform to generally accepted definitions of EISA and PCI
compatibility including the EISA bus specifications distributed by BCPR
Services of Washington, DC and the PCI specifications developed by the PCI
Special Interest Group for extensions Version 2.1, and c.) to conform to
generally accepted definitions of Plug and Play compatibility including PnP
BIOS specifications Revision 1.0A. Chipset and I/O Module Source Code support
is for Intel chipsets, where applicable, and other manufacturers chipsets,
where Phoenix contractual obligations allow Phoenix, or where the other
manufacturer has given approval to Phoenix, to deliver such Software to
Intel.
PHOENIX SERVERBIOS VERSION 4.0 FOR INTEL PROCESSORS
PhoenixBIOS Version 4.0 and Phoenix ServerBIOS Version 4.0 are BIOS
software, that support EISA, PCI, and PnP extensions, that emulate the
Basic Input/ Output System (BIOS) residing in the read-only memory of the IBM
Personal Computer AT and provides all of the features of the IBM PC/AT ROM
BIOS, including POST and SETUP except support for the Basic programming
language. The software executes from read-only memory and has been adapted
a.) to support the Intel 386, 486, Pentium-TM- and Pentium Pro-TM-
processors, b.) to provide extensions key to servers, such as multiple CPU
support, enhancements to POST, and pre-Boot logging and reporting, c.) to
conform to generally accepted definitions of EISA and PCI compatibility
including the EISA bus specifications distributed by BCPR Services of
Washington, DC and the PCI specifications developed by the PCI Special
Interest Group for extensions Version 2.1, and d.) to conform to generally
accepted definitions of Plug and Play compatibility including PnP BIOS
specifications Revision 1.0A. Chipset and I/O Module Source Code support is
for Intel chipsets, where applicable, and other manufacturers chipsets, where
Phoenix contractual obligations allow Phoenix, or where the other
manufacturer has given approval to Phoenix, to deliver such Software to
Intel.
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EXHIBIT A (Continued)
PHOENIXMISER/DT
PhoenixMISER/DT BIOS software provides power management services designed to
interface with PhoenixBIOS Version 4.0, Phoenix ServerBIOS Version 4.0 and
Multikey 42 or 42G. PhoenixMISER/DT provides power management control of
individual components through inactivity timers and/or enable/disable
settings, of processor operating speed (requires system support of
multi-speed operation and/or static mode CPU), hard disk motor operation (as
made possible by system and disk design) and other peripherals (as supported
by system design). PhoenixMISER/DT includes APM (Advanced Power Management
as available in Microsoft DOS Vers. 5.0 and later) support.
PHOENIXVIEW/DT
PhoenixVIEW/DT is BIOS software that provides I/O services for IBM VGA and
VESA SVGA compatible CRT-based desktop graphics subsystems. PhoenixVIEW/DT
provides support for standard VGA registers, Interrupt 10h functions, VESA
VBE 1.2 SVGA standard, VESA VBE/PM standard, and VESA VBE/DDC standard.
PhoenixVIEW/DT, suitable for execution from read-only memory (ROM), may be
configured as a stand-alone or integrated service.
PHOENIX MULTIKEY/42G
The Phoenix MultiKey/42G is BIOS software that provides keyboard
Input/Output (I/O) device services that support both AT and PS/2 compatible
systems. The MultiKey keyboard BIOS service is suitable for execution from
Intel 80C42 and 87C42 controllers and fully compatible devices. The
MultiKey/42G provides support for password in an AT environment and extended
commands for the AT and PS/2 environments, as well as supporting PS/2
compatible mouse support in an AT compatible environment. The Phoenix
MultiKey/42G supports Power On Password and Quicklock Security features with
flashing LEDs to indicate security features invoked as well as inactivity
timers suitable for power management including Power Down Mode support. Up
to 6 Hot Keys may be defined using the MultiKey/42G. The Phoenix
MultiKey/42G is intended for use in personal computers containing keyboards
connected in a serial (as opposed to parallel) fashion.
PHOENIX MULTIKEY/42
The Phoenix MultiKey/42 is BIOS software that provides keyboard Input/Output
(I/O) device services that support both AT and PS/2 compatible systems. The
MultiKey keyboard BIOS service is suitable for execution from Intel 8042 and
8742 controllers and fully compatible devices. The MultiKey/42 provides
support for password in an AT environment and extended commands for the AT
and PS/2 environments, as well as supporting PS/2 compatible mouse support in
an AT compatible environment. The Phoenix MultiKey/42 is intended for use in
personal computers containing keyboards connected in a serial (as opposed to
parallel) fashion.
PHOENIX MULTIKEY/42E
The Phoenix MultiKey/42E is BIOS software that provides keyboard Input/Output
(I/O) device services that support both AT and PS/2 compatible systems. The
MultiKey keyboard BIOS service is suitable for execution from Intel 8042 and
8742 controllers and fully compatible devices. The MultiKey/42E provides
support for password in an AT environment and extended commands for the AT
and PS/2 environments, as well as supporting PS/2 compatible mouse support in
an AT compatible environment. The Phoenix MultiKey/42E supports enhanced
Power on Password and Quicklock Security features that support both
Supervisor and User passwords of up to 16 characters.Up to 5 Hot Keys may be
defined using the MultiKey/42E. The Phoenix MultiKey/42E is intended for use
in personal computers containing keyboards connected in a serial (as opposed
to parallel) fashion.
PHOENIXCARD MANAGER 4.0
The PhoenixCARD Manager 4.0 is software that enables the use of PC Card
sockets conforming to the 16-bit version of the PC Card Standard. It
includes Card Services for 16-bit PCMCIA controllers that conform
-21-
<PAGE>
to the PC Card Standard and for a memory technology driver (MTD), ATA
driver, and the Phoenix Super Client Driver (PCMSCD) enabling a full range of
I/O PC Cards, a Windows virtual device driver and various utilities that
support PC Cards. PhoenixCard Manager 4.0 operates in a DOS and Windows 3.x
environment. A Flash utility driver must be licensed separately from
Microsoft or another provider of such technology. Third party Source Code is
used in this product and must be licensed separately from the specific
suppliers ( for reduced memory footprint drivers contact Novell in Provo,
Utah and for installation code modules contact Stirling Technologies in
Chicago, Il )
PHOENIXCARD MANAGER 4.0 FOR WINDOWS 95
The PhoenixCARD Manager 4.0 for Windows 95 is software that enables the use
of PC Card sockets conforming to the 16-bit version of the PC Card Standard
in a Windows 95 operating system environment. This software includes PC Card
compliant Socket Services VxD's and Card Services VxD's for 16-bit PCMCIA
controllers that conform to the PC Card Standard. The software also includes
a memory technology driver (MTD), ATA driver, the Phoenix Super Client
Driver (PCMSCD) enabling a full range of I/O PC Cards, a PCMCIA enumerator,
Windows virtual device driver, and various utilities that support PC Cards.
PhoenixCard Manager 4.0 for Windows 95 operates in a Windows 95 operating
system environment only. A Flash utility driver must be licensed separately
from Microsoft or another provider of such technology. Third party Source
Code is used in this product and must be licensed separately from the
specific suppliers ( for reduced memory footprint drivers contact Novell in
Provo, Utah and for installation code modules contact Stirling Technologies
in Chicago, Il )
TOOLS
The Tools are software development programs designed to work with PhoenixBIOS
Version 4.0 and Phoenix ServerBIOS Version 4.0 Source Code modules. The
Tools include Build, Crunch, Flash Utility, PHDebug, and Asmmod which may be
required for builds, compression, Object Code editing, Object Code merging,
and assembling Source Code modules. Other than the Tools listed herein, the
Tools are provided "as is" and are not supported products.
SYSTEM ESSENTIALS-TM- VERSION 1.0
System Essentials-TM- 1.0 is a Windows-based software utility that provides
BIOS-related system-level information. This software includes WinSetup which
provides access to the BIOS allowing users to view information about the
system, configure newly installed hardware, and modify system performance;
DMI (Desktop Management Interface) BIOS viewer which , used in conjunction
with Phoenix DMI BIOS version 1.2 or 2.0, displays the DMI information about
the hardware devices and the BIOS installed on the computer; and System
Resource viewer which displays the system resources assigned to the different
devices. System Essentials-TM- 1.0 works with PhoenixBIOS 4.0 version 5.0 or
later only. It operates with Windows 95, Windows 3.1, and Windows 3.11
environments. Note: The Intel Configuration Utility (ICU) is provided for
use with System Essentials-TM- when operating in a Windows 3.1 or 3.11
environments.
-22-
<PAGE>
EXHIBIT B
ANNUAL FEES AND PER UNIT ROYALTIES
1. ANNUAL FEES/ROYALTIES DURING THE TERM:
The following table sets forth the minimum and maximum fees and royalties
which Intel will pay Phoenix during each Year of this Agreement. Such fees
and royalties will be the sum of (a) a Minimum Annual Fee (the amount of
which for each Year is set out under the column heading "Minimum Annual Fee
($M)" and which may be adjusted by the provisions of Section 3.3) and (b)
any Per Unit Royalties (as specified in Section 4.1(b))), and (c) any Source
License Fees (as specified in Section 4.1(c)).
In no event will the maximum fees and royalties for a Year be greater than
the amount set forth under the column headed "Maximum Annual Fee ($M)" for
that Year.
All amounts in the following table shown in dollars are in Unted States
dollars and are in millions except for Per Unit Royalties and the Years.
<TABLE>
<CAPTION>
Per Unit Royalties Beyond Schedule Units
-----------------------------------------------------------
For each For each For each For each
Year Minimum Schedule Maximum of first [ ] of next [ ] of next [ ] add'l Units >
Annual Fee Units Annual Units > Units > Units > Schedule
($M) (M) Fee Schedule Schedule Schedule Units
($M) Units Units Units +[ ]
- --------- ----------- ----------- ----------- -------------- -------------- ------------ -------------
<S> <C> <C> <C> <C> <C> <C> <C>
1996 $[ ] [ ] $[ ] $[ ] $[ ] $[ ] $[ ]
1997 $[ ] [ ] $[ ] $[ ] $[ ] $[ ] $[ ]
1998 $[ ] [ ] $[ ] $[ ] $[ ] $[ ] $[ ]
1999 $[ ] [ ] $[ ] $[ ] $[ ] $[ ] $[ ]
2000 $[ ] [ ] $[ ] $[ ] $[ ] $[ ] $[ ]
2001 $[ ] [ ] $[ ] $[ ] $[ ] $[ ] $[ ]
2002 $[ ] [ ] $[ ] $[ ] $[ ] $[ ] $[ ]
</TABLE>
In addition to the Minimum Annual Fee for Calendar 1996, Intel will pay
Phoenix a "Fast Startup Bonus" of [ TEXT DELETED ], upon achievement of
specific Fast Start Up goals to be agreed by the parties, as defined in
Section 13.
CONFIDENTIAL TREATMENT REQUESTED
-23-
<PAGE>
EXHIBIT B (Continued)
ANNUAL FEES AND PER UNIT ROYALTIES
2. SOURCE CODE LICENSE FEES DURING THE TERM:
<TABLE>
<CAPTION>
Product (Intel's version as modified for
for Intel Products) License Fee (US$) License Fee (US$)
------------------- -----------------
(ONLY for Phoenix
Customers who have an
existing Source Code license
in effect for PhoenixBIOS 4.0)
<S> <C> <C>
PhoenixBIOS Version 4.0 for the Desktop(1) $[ ] $[ ]
For current Intel Phoenix 4.0 Server Customers $[ ] $[ ]
Each Additional Desktop Chipset Module $[ ] $[ ]
PhoenixBIOS Version 4.0 for the Server(1) $[ ] $[ ]
For current Intel Phoenix 4.0 Desktop Customers $[ ] $[ ]
Each Additional Server Chipset Module $[ ] $[ ]
PhoenixView/DT $[ ] $[ ]
Multikey $[ ] $[ ]
PhoenixCard Manager(2) $[ ] $[ ]
Additional Source Code Sites(3) Add additional [TEXT DELETED] for each site
Source Updates -- Annual Software Maintenance Subsequent annual fee rate = [TEXT DELETED] of
the above fee for the related product
OPTIONAL FEATURE ( available only with Source License for PhoenixBIOS 4.0 ):
Tools(4) [TEXT DELETED]
</TABLE>
As Phoenix changes the above license fees, and as new products are developed
from time to time and Source Code for such products are priced, the Intel
price will be [TEXT DELETED] of Phoenix's Suggested List Price for each
product. Furthermore, upon Intel's request, Phoenix agrees to reduce the
Source Code License Fees for any given account to an amount equal to the
direct source license fees such account pays to Phoenix for equivalent source
code and rights.
(1) Includes source for specific chipsets along with one year of source
updates
(2) Includes source for PC Card Socket Services only
(3) One site is included in the license fee. Each site requires the
PhoenixBIOS 4.0 Base.
(4) Includes Build.C, Crunch.exe, BIOSEdit and Asmmod. Tools are provided
"as-is" and are unsupported.
CONFIDENTIAL TREATMENT REQUESTED
-24-
<PAGE>
EXHIBIT B (Continued)
ANNUAL FEES AND PER UNIT ROYALTIES
3. ANNUAL FEES/ROYALTIES AFTER TERMINATION/EXPIRATION:
[TEXT DELETED]
1. [TEXT DELETED].
2. [TEXT DELETED]
3. [TEXT DELETED]
4. [TEXT DELETED];
[TEXT DELETED].
[TEXT DELETED].
CONFIDENTIAL TREATMENT REQUESTED
-25-
<PAGE>
EXHIBIT C
MINIMUM LICENSE TERMS
[LOGO]
SOFTWARE DISTRIBUTION AND
DOCUMENTATION DUPLICATION LICENSE AGREEMENT
Intel Corporation ("Intel")
5200 NE Elam Young Parkway
Hillsboro, OR 97124
Licensee Name:
Licensee Address --------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
Effective Date: --------------------------------------------------------
Agreement Number: --------------------------------------------------------
1 DEFINITIONS
-----------
1.1 "Documentation" means any portion of the documentation listed below in
printed or electronic form:
--------------------------------------------------------------------------
1.2 "Product(s)" shall mean the following product(s) purchased by Licensee
from Intel:
--------------------------------------------------------------------------
1.3 "Software" shall mean the following Intel or third-party software in
binary code form:
--------------------------------------------------------------------------
1.4 "Maintenance Vendor" shall mean a third party who performs the service of
duplicating the Software and Documentation on behalf of the Licensee for
distribution by Licensee to customers.
2 DOCUMENTATION LICENSE
---------------------
2.1 DOCUMENTATION LICENSE GRANT. Intel grants to Licensee a non-exclusive,
world-wide, non-transferable, royalty-free license to:
a) adapt the Documentation as necessary for use in conjunction with the
Product(s), provided that modifications by Licensee do not render the
Documentation incomplete or inaccurate.
b) reproduce Documentation only for use in conjunction with Product(s);
c) distribute Documentation only to Licensee customers who purchase the
Product(s).
-26-
<PAGE>
2.2 MARKINGS. The above rights are granted on the condition that Licensee
either retains Intel's copyright notices as they appear in the
Documentation, or replaces Intel's name with its own and replaces Intel's
copyright notice with Licensee's copyright notice whenever it appears in
the Documentation. Licensee's packaging shall indicate that the
Documentation is intended for use only with Product(s).
2.3 THIRD PARTY DUPLICATION. The license grant does not include the right to
permit Licensee's customers, agents, distributors, or any third party to
reproduce the Documentation. Notwithstanding, Licensee may permit
Licensee's Maintenance Vendors to reproduce Documentation, provided
Licensee imposes the terms and conditions of this Agreement on such parties
in writing, and provided Licensee agrees to indemnify and hold Intel
harmless from any damage or loss arising from duplication of the
Documentation under this Agreement by Licensee's third-party Maintenance
Vendors.
3. SOFTWARE LICENSE
----------------
3.1 SOFTWARE LICENSE GRANT. Subject to the terms and conditions set forth
herein, Intel hereby grants to Licensee a world-wide, non-exclusive,
nontransferable, royalty-free right to reproduce, market and distribute the
Software, in object code form only, and only for use with the Product(s),
and if shipped as software only, under terms and conditions substantially
the same as those contained in Attachment 1A, Intel End User Software
License Agreement.
3.2 Reproduction of Copyrights. Licensee shall reproduce and include
Intel's or its vendor's copyright and proprietary legends in and on
every copy, in any form of the Software.
3.3 Third Party Duplication. Intel grants Licensee the right to
permit Licensee's Maintenance Vendors the right to reproduce the
Software provided Licensee imposes the terms and conditions of this
Agreement on such parties in writing, and provided Licensee agrees
to indemnify and hold Intel harmless from any damage or loss
arising from duplication of the Software under this Agreement by
such Maintenance Vendors.
4. NO OTHER LICENSE
----------------
4.1 No rights or licenses are granted by Intel to Licensee under
this Agreement, expressly or by implication, with respect to any
proprietary information or patent, copyright, trade secret or other
intellectual property right owned or controlled by Intel or its
vendors, except as expressly provided in this Agreement.
4.2 Licensee shall not reverse engineer, decompile, or disassemble the
Software.
5. OWNERSHIP
---------
Intel or its vendors shall remain the sole owner(s) of all right,
title and interest (including copyright and patent) in the
Documentation and Software.
6 TERM AND TERMINATION
--------------------
6.1 TERM OF AGREEMENT. Unless earlier terminated, this Agreement
shall remain in effect for so long as Licensee uses the Software
and Documentation according to the terms and conditions of this
Agreement or until Intel's license rights in portions of the
Software licensed from third-parties expires or is terminated.
-27-
<PAGE>
6.2 TERMINATION FOR CONVENIENCE. Licensee may terminate this Agreement
in its sole discretion on ninety (90) days written notice.
6.3 TERMINATION FOR DEFAULT. Intel may terminate this Agreement if Licensee
defaults on any of its obligations hereunder, unless within thirty (30)
days after written notice of such default, Licensee remedies the default.
6.4 EFFECT OF TERMINATION. Immediately after termination of this Agreement,
Licensee shall discontinue all use and distribution of the Software and
Documentation and shall, at Intel's option, either return or destroy all
copies except for archive copies and copies that have been distributed to
in compliance with this Agreement.
7 ADDITIONAL TERMS
----------------
7.1 Licensee will keep records required to verify compliance with the terms
of this Agreement, including, without limitation, the number of copies
made by Licensee of the Software. Intel may cause an audit of Licensee's
records to verify Licensee's compliance with the terms hereof.
7.2 EXPORT CONTROL. Licensee will not export the Software or the
Documentation, either directly or indirectly, without first obtaining any
required license or other approval from the U.S. Department of Commerce or
any other United States agency.
7.3 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter thereof. No
amendments or modifications shall be effective unless in a writing signed
by both parties.
Agreed:
INTEL CORPORATION LICENSEE
- ------------------------------- -------------------------------
Signature Signature
- ------------------------------- -------------------------------
Printed Name Printed Name
- ------------------------------- -------------------------------
Title Title
- ------------------------------- -------------------------------
Date Date
-28-
<PAGE>
ATTACHMENT 1A
END USER SOFTWARE LICENSE AGREEMENT
BY USING THIS SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS
AGREEMENT. DO NOT USE THIS SOFTWARE UNTIL YOU HAVE CAREFULLY READ AND AGREED
TO THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS OF
THIS AGREEMENT, PROMPTLY RETURN THE SOFTWARE PACKAGE AND ANY ACCOMPANYING
ITEMS.
IF YOU USE THIS SOFTWARE, YOU WILL BE BOUND BY THE TERMS OF THIS AGREEMENT.
LICENSE: Licensor grants you the right to use the enclosed software program
(the "Software"). You will not use, copy, modify, rent, sell or transfer the
Software or any portion thereof except as provided in this Agreement.
You may:
1. Use the Software on a single computer;
2. Copy the Software solely for backup or archival purposes.
TRANSFER: You may transfer the Software to another party if the receiving
party agrees to the terms of this Agreement and you retain no copies of the
Software and accompanying documentation. Transfer of the Software terminates
your right to use the Software.
OWNERSHIP AND COPYRIGHT OF SOFTWARE: Title to the Software and all copies
thereof remain with Licensor or its vendors. The Software is copyrighted and
is protected by United States and international copyright laws. You will not
remove the copyright notice from the Software. You agree to prevent any
unauthorized copying of the Software.
WARRANTY: Licensor warrants that it has the right to license you to use the
Software. The Software is provided "AS IS." Licensor warrants that the
media on which the Software is furnished will be free from defects in
material and workmanship for a period of one (1) year from the date of
purchase. Upon return of such defective media, Licensor's entire liability
and your exclusive remedy shall be the replacement of the Software.
THE ABOVE WARRANTIES ARE THE ONLY WARRANTIES OF ANY KIND EITHER EXPRESS OR
IMPLIED INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE.
LIMITATION OF LIABILITY: NEITHER LICENSOR NOR ITS VENDORS SHALL BE LIABLE
FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, INTERRUPTIONS OF
BUSINESS, NOR FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF
ANY KIND WHETHER UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
TERMINATION OF THIS LICENSE: Licensor may terminate this license at any time
if you are in breach of any of its terms and conditions. Upon termination,
you will immediately destroy the Software or return all copies of the
Software and documentation to Licensor.
U.S. GOVERNMENT RESTRICTED RIGHTS: The Software and documentation were
developed at private expense and are provided with "RESTRICTED RIGHTS." Use,
duplication, or disclosure by the Government is subject to restrictions as
set forth in FAR 52.227-14 and DFAR 252.227-7013 ET SEQ. or its successor.
EXPORT LAWS: You agree that neither the Software nor the direct product
thereof is intended to be shipped either directly or indirectly to country
groups Q,S,W,Y,Z, Afghanistan or the People's Republic of China, unless a
validated export license is obtained from the U.S. Department of Commerce.
APPLICABLE LAW: This Agreement is governed by the laws of the State of
California and the United States, including patent and copyright laws. Any
claim arising out of this Agreement will be brought in Santa Clara County,
California.
-29-
<PAGE>
[LOGO]
INTEL SOURCE CODE LICENSE AGREEMENT
INTEL CORPORATION ("Intel")
5200 NE Elam Young Parkway
Hillsboro, OR 97124
Licensee Name: -------------------------------------------------------
Licensee Address -------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
Effective Date: -------------------------------------------------------
Agreement Number: -------------------------------------------------------
1 DEFINITIONS
-----------
1.1 "Source Code" means the source code for the Licensed Program
identified below, as provided to Licensee, and as modified by Licensee
for use with Licensee Product.
1.2 "Object Code" means the executable or binary version of the
Licensed Program identified below, as provided to Licensee, and as
modified by Licensee for use with Licensee Product.
1.3 "Licensed Program" means the following software program in Source
Code or Object Code format:
1.4 "Licensee Product" means the following products or classes of
products manufactured and/or distributed by Licensee:
2 LICENSE GRANT AND RESTRICTIONS
------------------------------
2.1 Intel grants to Licensee only, and not to any subsidiary,
affiliate, or independent contractor of Licensee, a revocable,
non-exclusive, non-transferable, royalty-free license under copyrights
and patents in or reading upon the Licensed Program which Intel owns or
has authority to grant licenses of the scope set forth herein to use
and create derivatives of the Licensed Program in the Source Code
format, internally only, solely for enabling the Licensed Program to
operate with Licensee Product and to reproduce the Licensed Program and
Licensee created derivatives thereof solely for the purpose of
compiling the Licensed Program into Object Code.
-30-
<PAGE>
2.2 The Licensee has no right to distribute Source Code or Object Code
under this license agreement. A separate Software Distribution and
Documentation Duplication License Agreement ("SDDDLA") under which the
Licensee has certain rights relating to reproduction and distribution
of the Licensed Program in Object Code format must be signed.
2.3 No rights or licenses are granted by Intel or its vendors to
Licensee, expressly, by implication, estoppel or otherwise, with
respect to any proprietary information or patent, copyright, trade
secret or other intellectual property right owned or controlled by
Intel or its vendors, except as expressly provided in this Agreement.
2.4 No rights or licenses are granted by this Agreement, expressly or
by implication, to use any trademark or trade name, or any word or mark
similar thereto of Intel or its vendors, in connection with any
products manufactured, used or sold by Licensee, or as part of
Licensee's corporate, firm or trade name, or for any other purpose
unless authorization is expressly given to Licensee in writing by Intel
or its vendors.
2.5 The Parties acknowledge that title to and right to possess the
Source Code shall remain at all times in Intel or its vendors'
corporation. Further, the Parties acknowledge that Intel's vendor
Phoenix Technologies Ltd. is a third-party beneficiary of the rights
and obligations of both Parties hereunder and agree that Phoenix
Technologies Ltd. may, at its sole discretion, enforce such rights and
obligations against either Party at law or in equity.
3 PROPRIETARY RIGHTS
------------------
3.1 The Licensed Program and all copies, in whole or in part are and shall
remain the property of Intel or its vendor. Intel retains the royalty-free
right to use, copy, modify, sublicense, and distribute the Licensed
Program.
3.2 The Licensee owns any improvements which it makes to the Licensed
Program. However, this does not grant the Licensee any new rights to
the underlying Licensed Program. Derivatives which include code from
the Licensed Program shall be subject to the restrictions of this
License and the SDDDLA.
3.3 Jointly developed improvements, if any, shall be specified in
writing in advance, and jointly owned.
4 CONFIDENTIALITY
---------------
4.1 Licensee agrees to receive and hold the Source Code in confidence.
Licensee agrees to exercise the same degree of care in preventing the
disclosure or unauthorized use of such Source Code as Licensee uses to
protect its own proprietary information, but in no event less than
reasonable care.. As a minimum protection, Licensee shall limit the
disclosure of the Source Code to employees having a need to know such
information, and shall not disclose the Source Code to any third party
individual, corporation, independent contractor, consultant or other
entity without the prior written consent of Intel. This obligation will
not apply to any Source Code which is:
a) published or otherwise available to the public other than by breach of
this License Agreement by Licensee or
b) rightfully received by Licensee from a third party without
confidential limitations; or
-31-
<PAGE>
c) independently developed by Licensee by employees having no access to
the Source Code; or
d) rightfully known to Licensee prior to its first receipt of same from
Intel; or
e) hereinafter disclosed by Intel to a third party without restriction on
disclosure.
4.2 Licensee may not disclose nor allow use of the Source Code to or by
any of its groups, divisions or personnel involved in the development,
marketing and distribution of BIOS products and related system software
products on a stand-alone basis.
5 TERM AND TERMINATION
--------------------
5.1 The term of this Agreement shall commence on the Effective Date,
and shall continue for the shorter of the following time periods (i) if
the parties have not yet signed a SDDDLA, then until Intel determines
in its sole discretion that the Parties are unlikely to reach Agreement
on a SDDDLA, (ii) until the termination or expiration of the SDDDLA, if
one has been signed, or (iii) until Intel's license in portions of the
Licensed Program licensed from vendors expires or is terminated.
5.2 Intel reserves the right to have audits conducted to verify
compliance with this Agreement. In the event that Intel, in its sole
discretion, determines that the Licensed Program is not being used by
Licensee exclusively for the purposes set forth above, or if Licensee
is in breach of any of the terms and conditions of this Agreement,
Intel has the right to immediately terminate this Agreement, and revoke
any and all licenses granted hereunder. In such event, Licensee agrees
to immediately return all copies of the Source Code to Intel, and to
discontinue distribution of Object Code.
5.3 Upon termination of this Agreement for any reason, the sections of
this Agreement entitled Proprietary Rights and CONFIDENTIALITY shall
remain in effect.
5.4 Upon termination of this Agreement for any reason, Licensee shall
discontinue all use of, and at Intel's disretion either return or
destroy all copies of, the Source Code. Notwithstanding the foregoing,
Licensee may retain and continue to use a reasonable number of copies
of the Source Code for support purposes only.
6 EXPORT CONTROL
--------------
Licensee agrees that any export or re-export of any Licensed Programs
licensed or distributed under this Agreement shall be in compliance
with the laws of the United States of America.
7 ASSIGNMENT, SALE OR TRANSFER
----------------------------
Licensee may not assign or sublicense any rights hereunder without the
prior written approval of Intel, and any attempt to assign or
sublicensee any rights, duties or obligations hereunder without Intel's
written consent will be void. Intel may assign all or any part of its
rights or obligations without Licensee's consent.
8 GENERAL
-------
-32-
<PAGE>
8.1 Licensee acknowledges and agrees that, because of the highly
confidential nature of the Source Code, any breach or threatened breach
by Licensee of the provisions of this Agreement entitled License Grant
and Restrictions and Confidentiality would cause irreparable harm to
Intel and its vendors. Accordingly, Licensee agrees that Intel and/or
its vendors will be entitled to preliminary injunctive relief to remedy
any such breach or threatened breach.
8.2 This document, including its attachments, constitutes the entire
agreement between the parties and supersedes all prior negotiations
and agreements. No amendment to or modification of this Agreement will
be valid and binding unless duly executed by the parties.
Agreed:
INTEL CORPORATION LICENSEE
- ------------------------------- --------------------------------
Signature Signature
- ------------------------------- --------------------------------
Printed Name Printed Name
- ------------------------------- --------------------------------
Title Title
- ------------------------------- --------------------------------
Date Date
-33-
<PAGE>
EXHIBIT D
DEVELOPMENT STATEMENT OF WORK
PHOENIX PRODUCT TRANSITION PROJECT
Phoenix will perform the work outlined in Section 13.
PHOENIX PRODUCTS TRAINING
Phoenix will provide training sessions to train up to [TEXT DELETED] Intel
BIOS engineers on the Phoenix Products as outlined below. Training will be
made available at Intel's facility as soon as it is appropriately equiped for
such training.
<TABLE>
<CAPTION>
Action Completion Date
--------- ----------------
<S> <C>
First Training session Week of [TEXT DELETED] at
Phoenix Irvine training center
Complete Intel formal training [TEXT DELETED] sessions at the Intel
Oregon site to train up to [TEXT
DELETED] BIOS
engineers by [TEXT DELETED].
Beyond [TEXT DELETED], training for
all of Intel's new hire BIOS engineers in
[TEXT DELETED] Phoenix's training
sessions at Phoenix training facility.
</TABLE>
[TEXT DELETED]
PHOENIX OREGON FACILITY
Phoenix will lease a facility in or around the Intel, Hillsborough facility
for the Dedicated Engineering Team. This facility will be a fully equiped
engineering lab with all the necessary networking and computer equipment to
perform under this Agreement. Because of long lease and equipment lead times,
temporary offices will have to be setup until a permanent facility can be
established.
<TABLE>
<CAPTION>
Action Completion Date
--------- ----------------
<S> <C>
Temporary office facility with [TEXT DELETED]
telephones, basic computer
equipment, etc.
Permanent facility [TEXT DELETED]
Network -- Phase 1 : LAN at [TEXT DELETED]
Oregon site plus (subject to telephone company
28.8kbps modem access availability and installation)
to Irvine
Phase 2 : Add ISDN lines [TEXT DELETED]
(subject to telephone company
availability and installation)
Phase 3 : Add leased [TEXT DELETED]
line/ encrypted link (subject to telephone company
to Intel and Irvine availability and installation)
</TABLE>
PHOENIX OREGON FACILITY STAFFING
CONFIDENTIAL TREATMENT REQUESTED
-34-
<PAGE>
Upon Agreement signing, Phoenix will detail the staffing plan for the new
Oregon Dedicated Engineering Team facility. Phoenix will ramp up to an
engineering staff of (20) twenty operating out of the Phoenix Oregon
facility, as follows :
<TABLE>
<CAPTION>
Dedicated Engineering Team Headcount Completion
------------------------------------ ----------
<S> <C>
[ TEXT DELETED ] 3/31/96
[ TEXT DELETED ] 6/30/96
[ TEXT DELETED ] 9/30/96
12/31/96
</TABLE>
At least [TEXT DELETED] the Dedicated Engineers assigned during ramp up will
have a minimum of [TEXT DELETED] experience on BIOS development.
CONFIDENTIAL TREATMENT REQUESTED
-35-
<PAGE>
EXHIBIT E
CERTIFICATES OF ORIGINALITY
The following Certificates of Originality are incorporated by reference.
1. Certificate of Originality for certain Phoenix Build Tools (including
Build.c, Crunch.exe, ASMmod), signed on behalf of Phoenix Technologies
Limited by Philip T. Virga, Intellectual Property Manager, dated 12/13/95;
2. Certificate of Originality for Phoenix Card Manager 4.0 and Phoenix Card
Manager 4.0 for Windows '95, signed on behalf of Phoenix Technologies
Limited by Philip T. Virga, Intellectual Property Manager, dated 12/11/95;
3. Certificate of Originality for Phoenix BIOS 4.0, EISA Cores, PCI Cores,
PNP Cores, Phoenix Miser/DT, ChipSet and I/O Modules, signed on behalf of
Phoenix Technologies Limited by Philip T. Virga, Intellectual Property
Manager, dated 12/13/95;
4. Certificate of Originality for Phoenix View and Phoenix Multikey, signed
on behalf of Phoenix Technologies Limited by Philip T. Virga, Intellectual
Property Manager, dated 12/13/95;
5. Certificate of Originality for PhDebug, Flash Utility, and System
Essentials, signed on behalf of Phoenix Technologies Limited by Philip T.
Virga, Intellectual Property Manager, dated 12/18/95.
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<PAGE>
EXHIBIT F
MAINTENANCE AND SUPPORT
EMERGENCY SUPPORT
Key Phoenix personnel will be available to respond [TEXT DELETED], to work
with Intel personnel to support emergency problems in Intel Products (such as
line-down) which may have been caused by Phoenix Products or Dedicated
Developments or which may be solved by modifications in those Phoenix
Products or Dedicated Developments used in those Intel Products. Nothing in
this Section shall require Phoenix employees to perform in any manner that
Intel does not expect of its own employees.
MAINTENANCE AND ROUTINE SUPPORT
During the term of this Agreement, for Intel Products marketed and
distributed by Intel incorporating or using the Phoenix Products or Dedicated
Developments provided to Intel by Phoenix hereunder, Phoenix will provide
reasonable maintenance and support, as follows:
1. DOCUMENTATION. Phoenix shall supply Intel with its support documentation
necessary to enable Intel to provide first level support to Intel's
customers. In addition, Phoenix shall permit Intel on-line and other
access to the internal buglist for Phoenix Products and Dedicated
Developments or an equivalent database for the Phoenix Products and
Dedicated Developments.
2. SUPPORT. Phoenix shall make reasonable efforts to supply Intel with
second level support for the Tools listed in Exhibit A, Dedicated
Developments and Phoenix Products as described in this Exhibit. Phoenix
will provide telephone responses to Intel within [TEXT DELETED] of receipt
of Intel's telephone support questions. Phoenix will be available to
take Intel's support questions from [TEXT DELETED] Pacific Time (Standard
or Daylight during the appropriate season). If Intel, in its sole judgment
and discretion, determines it cannot efficiently or effectively remedy a
problem with a Tool, Phoenix Product or Dedicated Development in supporting
its customers, Intel shall furnish Phoenix a problem report which shall
identify and describe the problem using the following definitions:
FATAL: condition which precludes all useful work from being done;
SEVERE IMPACT: condition which precludes one or more major functions from
being performed;
DEGRADATION: condition which disables one or more non-essential functions;
MINIMAL IMPACT: any other condition which requires correction.
CONFIDENTIAL TREATMENT REQUESTED
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EXHIBIT F
MAINTENANCE AND SUPPORT (CONTINUED)
Upon receiving a problem report from Intel and unless the parties otherwise
agree in writing, Phoenix shall respond and correct the problem in
accordance with the following table:
<TABLE>
<CAPTION>
Written
acknowledgment of Patch, work around, Formal fix, update
problem report temporary fix, bug fix, fix, upgrade, or
Priority Description delivered to Intel or update release enhancement
- ------------- ------------------- ----------------------- --------------------- -------------------
<S> <C> <C> <C>
Fatal Condition which [TEXT DELETED] Constant effort by [TEXT DELETED]
precludes all useful highly qualified Phoenix
work from being personnel until relief is
done provided, but not more
than [TEXT DELETED].
Severe Impact Condition which [TEXT DELETED] Constant effort by [TEXT DELETED]
precludes one or more highly qualified Phoenix
major functions from personnel until relief is
being performed provided, but not more
than [TEXT DELETED].
Degradation Condition which [TEXT DELETED] [TEXT DELETED] [TEXT DELETED]
disables one or more
non-essential functions
Minimal Any other condition [TEXT DELETED] [TEXT DELETED] [TEXT DELETED]
Impact which requires
correction
</TABLE>
3. Intel Assistance: To assist Phoenix in providing the most effective
responsiveness to trouble reporting and solution, Intel will provide access
(which at Intel's option, may be on-site at Intel) to at least two (2)
systems in which the problems can be reproduced (if Phoenix does not have
such systems available), and access to Intel's hardware and software
debugging resources, if Phoenix so requests.
4. Down Revisions. Unless otherwise agreed by the Parties, twelve (12)
months after Phoenix ceases to ship a version of a Phoenix Product or
Dedicated Development to any third party, the previous version need no longer
be supported by Phoenix.
5. Bug Fixes. If Phoenix discovers any bugs in the technology delivered to
Intel hereunder, Phoenix shall report them to Intel. If Phoenix creates a
bug fix or maintenance release of the related technology, Phoenix shall make
the bug fix available to Intel no later than it is made available to any
third party.
CONFIDENTIAL TREATMENT REQUESTED
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EXHIBIT 10.25
PHOENIX TECHNOLOGIES LTD.
COMMON STOCK AND WARRANT
PURCHASE AGREEMENT
This Common Stock And Warrant Purchase Agreement (this "AGREEMENT") is
made and entered into as of December 18, 1995 by and between Phoenix
Technologies Ltd., a Delaware corporation (the "COMPANY"), and Intel
Corporation, a Delaware corporation (the "INVESTOR").
R E C I T A L
WHEREAS, the Company desires to sell to the Investor, and the Investor
desires to purchase from the Company, shares of the Company's Common Stock
and a Warrant to purchase additional shares of the Company's Common Stock on
the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing recital, the mutual
promises hereinafter set forth, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. AGREEMENT TO PURCHASE AND SELL STOCK.
1.1 AUTHORIZATION. As of the Closing (as defined below) the Company's
Board of Directors will have authorized the issuance, pursuant to the terms
and conditions of this Agreement, of up to 1,968,936 shares of the Company's
Common Stock, $0.001 par value (the "COMMON STOCK").
1.2 AGREEMENT TO PURCHASE AND SELL COMMON STOCK. The Company hereby
agrees to sell to the Investor at the Closing, and the Investor agrees to
purchase from the Company at the Closing, 894,971 shares of Common Stock at a
price per share equal to the Per Share Purchase Price. The shares of Common
Stock purchased and sold pursuant to this Agreement will be collectively
hereinafter referred to as the "PURCHASED SHARES."
1.3 PER SHARE PURCHASE PRICE. The "PER SHARE PURCHASE PRICE" shall
mean the average closing price of the Company's Common Stock as publicly
reported for the Nasdaq National Market as of 4:00 p.m. Eastern Time over the
thirty (30) trading days immediately preceding the earliest to occur of (a)
the Closing, (b) the date of a public announcement of this investment by
Investor in the Company, or (c) the date that the potential investment by
Investor in the Company becomes known to the public.
1.4 AGREEMENT TO PURCHASE AND SELL WARRANT. The Company hereby agrees
to sell to the Investor at the Closing, and the Investor agrees to purchase
from the Company at the Closing, a Warrant (the "WARRANT") in the form
attached hereto as EXHIBIT A to purchase from the Company up to 1,073,965
shares of Common Stock (the number of Purchased Shares multiplied by 1.2), at
a purchase price for the Warrant equal to $354,408.45, or $0.33 per share of
Common Stock purchasable thereunder. The shares of Common Stock purchasable
upon exercise of the Warrant will be collectively hereinafter referred to as
the "WARRANT SHARES."
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2. CLOSING.
2.1 THE CLOSING. The purchase and sale of the Purchased Shares and
the Warrant will take place at the offices of Fenwick & West, Two Palo Alto
Square, Suite 300, Palo Alto, California, at 2:00 p.m. California time, on
February 16, 1996 or at such other time and place as the Company and the
Investor mutually agree upon (which time and place are referred to in this
Agreement as the "CLOSING"). At the Closing, the Company will deliver to the
Investor the Warrant and a certificate representing the Purchased Shares, all
against delivery to the Company by the Investor of the full purchase price of
the Warrant and the Purchased Shares, paid by a check payable to the
Company's order, or wire transfer of funds to the Company, or by any
combination of the foregoing.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to the Investor that the statements in this Section 3
are true and correct, except as set forth in the Schedule of Exceptions (the
"SCHEDULE OF EXCEPTIONS") attached to this Agreement as EXHIBIT B:
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all corporate power and authority
required to (a) carry on its business as presently conducted, and (b) enter
into this Agreement, the Investor Rights Agreement (as defined in Section
5.7) and the Warrant and to consummate the transactions contemplated hereby
and thereby. The Company is qualified to do business and is in good standing
in each jurisdiction in which the failure to so qualify would have a Material
Adverse Effect. As used in this Agreement, "MATERIAL ADVERSE EFFECT" means
a material adverse effect on, or a material adverse change in, or a group of
such effects on or changes in, the operations, financial condition, results
of operations, prospects, assets or liabilities of the Company.
3.2 CAPITALIZATION. As of the date of this Agreement the
capitalization of the Company is as follows:
(a) PREFERRED STOCK. A total of 500,000 authorized shares
of Preferred Stock, $0.01 par value per share (the "PREFERRED STOCK"), none of
which are issued or outstanding.
(b) COMMON STOCK. A total of 20,000,000 authorized shares of
Common Stock, $0.001 par value, of which 14,021,227 shares are issued and
outstanding. All of such outstanding shares are validly issued, fully paid
and non-assessable. No such outstanding shares were issued in violation of
any preemptive right.
(c) OPTIONS, WARRANTS, RESERVED SHARES. Except for the 3,487,805
shares of Common Stock reserved for issuance under the Company's 1986
Incentive Stock Option Plan, Senior Management Stock Option Plan, Senior
Management Non-Qualified Stock Option Plan, 1990 Directors Stock Option Plan,
1992 Equity Incentive Plan, 1994 Equity Incentive Plan and 1991 Employee Stock
Purchase Plan, each as amended (the "PLANS"), there are not outstanding any
options, warrants, rights (including conversion or preemptive rights) or
agreements for the purchase or acquisition from the Company of any shares of
its capital stock or
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any securities convertible into or ultimately
exchangeable or exercisable for any shares of the Company's capital stock.
Except for any stock repurchase rights of the Company under the Plans, no
shares of the Company's outstanding capital stock, or stock issuable upon
exercise, conversion or exchange of any outstanding options, warrants or
rights, or other stock issuable by the Company, are subject to any rights of
first refusal or other rights to purchase such stock (whether in favor of the
Company or any other person), pursuant to any agreement or commitment of the
Company.
3.3 SUBSIDIARIES. The Company does not presently own or control,
directly or indirectly, any interest in any other corporation, partnership,
trust, joint venture, association, or other entity.
3.4 DUE AUTHORIZATION. All corporate action on the part of the
Company, its officers, directors and shareholders necessary for the
authorization, execution, delivery of, and the performance of all obligations
of the Company under, this Agreement, the Investor Rights Agreement (as
defined below), and the Warrant and the authorization, issuance, reservation
for issuance and delivery of all of the Purchased Shares being sold under
this Agreement and of the Warrant Shares has been taken or will be taken prior
to the Closing, and this Agreement constitutes, and the Investor Rights
Agreement and the Warrant when executed, will constitute, valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as may be limited by
(i) applicable bankruptcy, insolvency, reorganization or others laws of
general application relating to or affecting the enforcement of creditors'
rights generally and (ii) the
effect of rules of law governing the availability of equitable remedies.
3.5 VALID ISSUANCE OF STOCK.
(a) The Purchased Shares, when issued, sold and delivered in
accordance with the terms of this Agreement for the consideration provided for
herein, will be duly and validly issued, fully paid and nonassessable. The
Warrant Shares have been duly and validly reserved for issuance and, upon
issuance, sale and delivery in accordance with the terms of the Warrant for
the consideration provided for therein, will be duly and validly issued, fully
paid and nonassessable.
(b) Based in part on the representations made by the Investors in
Section 4 hereof, the Purchased Shares, the Warrant and (assuming no change in
applicable law and no unlawful distribution of Purchased Shares or the
Warrant by the Investor or other parties) the Warrant Shares will be issued
in full compliance with the registration and prospectus delivery requirements
of the Securities Act of 1933, as amended (the "1933 ACT"), or in
compliance with applicable exemptions therefrom, and the registration and
qualification requirements of all applicable securities laws of the States of
the United States (provided that, with respect to the Warrant Shares, no
commission or other remuneration is paid or given, directly or indirectly,
for soliciting the issuance of the Warrant Shares upon the exercise of the
Warrant).
3.6 GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part
of the Company is required in connection with the
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consummation of the transactions
contemplated by this Agreement, except for the filing of such qualifications
or filings under the 1933 Act and the regulations thereunder and all
applicable state securities laws as may be required in connection with the
transactions contemplated by this Agreement. All such qualifications and
filings will, in the case of qualifications, be effective on the Closing and
will, in the case of filings, be made within the time prescribed by law.
3.7 NON-CONTRAVENTION. The execution, delivery and performance of
this Agreement, the Investor Rights Agreement and the Warrant by the Company,
and the consummation by the Company of the transactions contemplated hereby
and thereby, do not and will not (i) contravene or conflict with the
Certificate of Incorporation or Bylaws of the Company; (ii) constitute a
material violation of any provision of any federal, state, local or foreign
law binding upon or applicable to the Company; or (iii) constitute a default
under, give rise to any right of termination, cancellation or acceleration
of, or to a loss of any material benefit to which the Company is entitled
under, or result in the creation or imposition of any lien, claim or
encumbrance on any material assets of the Company under any material contract
to which the Company is a party or any material permit, license or similar
right relating to the Company or by which the Company may be bound or
materially affected.
3.8 LITIGATION. There is no action, suit, proceeding, claim,
arbitration or investigation ("ACTION") pending : (a) against the Company,
its activities, properties or assets or, to the best of the Company's
knowledge, against any officer, director or employee of the Company in
connection with such officer's, director's or employee's relationship with,
or actions taken on behalf of, the Company, (b) that seeks to prevent,
enjoin, alter or delay the transactions contemplated by this Agreement, the
Investor Rights Agreement or the Warrant. To the best of the Company's
knowledge there is no Action pending or currently threatened, or any basis
therefor, relating to the current or prior employment of any of the Company's
current or former employees or consultants, their use in connection with the
Company's business of any information, technology or techniques allegedly
proprietary to any of their former employers, clients or other parties, or
their obligations under any agreements with prior employers, clients or other
parties. The Company is not a party to or subject to the provisions of any
order, writ, injunction, judgment or decree of any court or government agency
or instrumentality and there is no Action by the Company currently pending or
which the Company intends to initiate.
3.9 INVENTION ASSIGNMENT AND CONFIDENTIALITY AGREEMENT. Each employee
and consultant or independent contractor of the Company whose duties include
the development of products or Intellectual Property (as defined below), and
each former employee and consultant or independent contractor whose duties
included the development of Phoenix Products as such term is defined in the
Technology Agreement, has entered into and executed an Invention Assignment
and Confidentiality Agreement substantially in the form attached to this
Agreement as EXHIBIT C or an employment or consulting agreement containing
substantially similar terms.
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3.10 INTELLECTUAL PROPERTY.
(a) OWNERSHIP OR RIGHT TO USE. The Company has sole title to
and owns, or is licensed or otherwise possesses legally enforceable
rights to use, all patents or patent applications, software, know-how,
registered or unregistered trademarks and service marks and any applications
therefor, registered or unregistered copyrights, trade names, and any
applications therefor, trade secrets or other confidential or proprietary
information ("INTELLECTUAL PROPERTY") necessary to enable the Company to carry
on its business as currently conducted. To the best of the Company's
knowledge, no third party has any ownership right in, title to, or lien on
any Intellectual Property of the Company licensed under the Technology
Agreement. The Company represents and warrants that it will use reasonable
business efforts to seek Copyright registration and other intellectual
property protection for Intellectual Property of the Company.
(b) LICENSES; OTHER AGREEMENTS. The Company is not currently
subject to any exclusive licenses (whether such exclusivity is temporary or
permanent) to any Intellectual Property of the Company. To the best of the
Company's knowledge, there are not outstanding any licenses or agreements of
any kind relating to any Intellectual Property of the Company, except for
agreements with OEM's and other customers of the Company entered into in the
ordinary course of the Company's business. The Company is not obligated to
pay any royalties or other payments to third parties with respect to the
marketing, sale, distribution, manufacture, license or use of any
Intellectual Property, except as the Company may be so obligated in the
ordinary course of its business or as disclosed in the Company's SEC
Documents (as defined below).
(c) NO INFRINGEMENT. To the best of the Company's knowledge, the
Company has not violated or infringed, and is not currently violating or
infringing, and the Company has not received any communications alleging that
the Company (or any of its employees or consultants) has violated or
infringed any Intellectual Property of any other person or entity, to the
extent that any such violation or infringement, either individually or
together with all other such violations and infringements, would have a
Material Adverse Effect.
(d) EMPLOYEES AND CONSULTANTS. To the best knowledge of the
Company, no employee of or consultant to the Company is in default under any
term of any employment contract, agreement or arrangement relating to
Intellectual Property of the Company or any non-competition arrangement,
other contract, or any restrictive covenant relating to the Intellectual
Property of the Company. To the best knowledge of the Company, the
Intellectual Property of the Company was developed entirely by the employees
of or consultants to the Company during the time they were employed or retained
by the Company and, to the Company's knowledge, at no time during conception
or reduction to practice of the Intellectual Property of the Company were any
such employees or consultants operating under any grant from a government
entity or agency or subject to any employment agreement or invention
assignment or non-disclosure agreement or any other obligation with a
third party that would adversely affect the Company's rights in the
Intellectual Property of the Company. To the best knowledge of the Company,
such Intellectual Property of the Company does not include any invention or
other intellectual property of such employees or consultants made prior to
the time such employees or consultants were employed or retained by the
Company, nor any intellectual
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<PAGE>
property of any previous employer of such
employees or consultants nor the intellectual property of any other person
or entity.
3.11 COMPLIANCE WITH LAW AND CHARTER DOCUMENTS. The Company is not in
violation or default of any provisions of its Certificate of Incorporation or
Bylaws, both as amended, and except for any violations that would not, either
individually or in the aggregate, have a Material Adverse Effect, the Company
has complied and is in compliance with all applicable statutes, laws,
regulations and executive orders of the United States of America and all
states, foreign countries or other governmental bodies and agencies having
jurisdiction over the Company's business or properties.
3.12 REGISTRATION RIGHTS. Except as provided in the Investor Rights
Agreement effective upon the Closing, the Company is not currently subject to
any grant or agreement to grant to any person or entity any rights (including
piggyback registration rights) to have any securities of the Company
registered with the United States Securities and Exchange Commission
("SEC") or any other governmental authority.
3.13 TITLE TO PROPERTY AND ASSETS. The properties and assets the Company
owns are owned by the Company free and clear of all mortgages, deeds of
trust, liens, encumbrances and security interests except for statutory liens
for the payment of current taxes that are not yet delinquent and liens,
encumbrances and security interests which arise in the ordinary course of
business and which do not affect material properties and assets of the
Company. With respect to the property and assets it leases, the Company is
in compliance with such leases in all material respects.
3.14 SEC DOCUMENTS.
(a) The Company has furnished to the Investor prior to the date
hereof copies of its Annual Report on Form 10-K for the fiscal year ended
September 30, 1994 ("FORM 10-K"), and all other registration statements,
reports and proxy statements filed by the Company with the Securities and
Exchange Commission ("COMMISSION") on or after September 30, 1994, including,
but not limited to, its Quarterly Reports on Form 10-Q for the quarters ended
December 31, 1994, March 31, 1995 and June 30, 1995 (the Form 10-K, such
Forms 10-Q, and such registration statements, reports and proxy statements,
are collectively referred to herein as the "SEC DOCUMENTS"). Each of the
SEC Documents, as of the respective date thereof, does not, and each of the
registration statements, reports and proxy statements filed by the Company
with the Commission after the date hereof and prior to the Closing will not,
as of the date thereof, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading. The Company is not a party to any material contract, agreement
or other arrangement required to be filed as an exhibit to the SEC Documents
that is not so filed.
(b) The Company has provided the Investor with its audited
financial statements (the "AUDITED FINANCIAL STATEMENTS") for the fiscal
year ended September 30, 1995 (the "BALANCE SHEET DATE"). Since September 30,
1994, the Company has duly filed with the Commission all registration
statements, reports and proxy statements required to be filed by it under
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and
the 1933 Act.
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The audited and unaudited consolidated financial statements of the Company
included in the SEC Documents filed prior to the date hereof fairly present,
in conformity with generally accepted accounting principles ("GAAP")
(except as permitted by Form 10-Q) applied on a consistent basis (except as
may be indicated in the notes thereto) the consolidated financial position of
the Company and its consolidated subsidiaries as at the date thereof and the
consolidated results of their operations and cash flows for the periods then
ended (subject to normal year and audit adjustments in the case of unaudited
interim financial statements).
(c) Except as and to the extent reflected or reserved against in
the Company's Audited Financial Statements (including the notes thereto), to
the best knowledge of the Company, the Company has no material liabilities
(whether accrued or unaccrued, liquidated or unliquidated, secured or
unsecured, joint or several, due or to become due, vested or unvested,
executory, determined or determinable) other than: (i) liabilities incurred
in the ordinary course of business since the Balance Sheet Date that are
consistent with the Company's past practices, (ii) liabilities with respect
to agreements to which the Investor is a party, (iii) other liabilities that
either individually or in the aggregate, would not result in a Material
Adverse Effect, and (iv) all contingent liabilities other than contingent
liabilities that the officers of the Company presently have a reasonable
basis for believing have a reasonable prospect of occurring.
3.15 ABSENCE OF CERTAIN CHANGES SINCE BALANCE SHEET DATE. Since the
Balance Sheet Date, the business and operations of the Company have been
conducted in the ordinary course consistent with past practice, and there has
not been:
(a) any declaration setting aside or payment of any dividend or
other distribution of the assets of the Company with respect to any shares of
capital stock of the Company, or any repurchase, redemption or other
acquisition by the Company or any subsidiary of the Company of any
outstanding shares of the Company's capital stock;
(b) any damage, destruction or loss, whether or not covered by
insurance, except for such occurrences that have not resulted, and are not
expected to result, in a Material Adverse Effect;
(c) any waiver by the Company of a valuable right or of a
material debt owed to it, except for such waivers that have not resulted, and
are not expected to result, in a Material Adverse Effect;
(d) any material change or amendment to, or any waiver of any
material rights under, a material contract or arrangement by which the Company
or any of its assets or properties is bound or subject, except for changes,
amendments, or waivers which are expressly provided for or disclosed in this
Agreement or that have not resulted, and are not expected to result, in a
Material Adverse Effect;
(e) any change by the Company in its accounting principles,
methods or practices or in the manner it keeps its accounting books and
records, except any such change required by a change in GAAP; and
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(f) to the Company's knowledge, any other event or condition of
any character, except for such events and conditions that have not resulted,
and are not expected to result, in a Material Adverse Effect.
3.16 EMPLOYEE BENEFITS.
(a) As used in this Section 3.16, the following terms have the
following meanings: (1) "BENEFIT ARRANGEMENT" means any material benefit
arrangement that is not an Employee Benefit Plan, including (i) each material
employment or consulting agreement, (ii) each material arrangement providing
for insurance coverage or workers' compensation benefits, (iii) each material
bonus or deferred bonus arrangement, (iv) each material arrangement providing
any termination allowance, severance or similar benefits, (v) each equity
compensation plan, (vi) each deferred compensation plan and (vii) each material
compensation policy and practice maintained by the Company covering the
employees, former employees, officers, former officers, directors and former
directors of the Company, and the beneficiaries of any of them; (2) "BENEFIT
PLAN" means an Employee Benefit Plan or Benefit Arrangement; (3) "COBRA"
means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended,
as set forth in Section 4980B of the Code and Part 6 of Title I of ERISA; (4)
"EMPLOYEE BENEFIT PLAN" means any employee benefit plan, as defined in
Section 3(3) of ERISA, that is sponsored or contributed to by the Company or
any ERISA Affiliate covering employees or former employees of the Company; (5)
"EMPLOYEE PENSION BENEFIT PLAN" means any employee pension benefit plan, as
defined in Section 3(2) of ERISA, that is regulated under Title IV of ERISA,
other than a Multiemployer Plan; (6) "ERISA" means the Employee Retirement
Income Security Act of 1974, as amended; (7) "ERISA AFFILIATE" of the Company
means any other person or entity that, together with the Company as of the
relevant measuring date under ERISA, was or is required to be treated as a
single employer under Section 414 of the Code; (8) "GROUP HEALTH PLAN" means
any group health plan, as defined in Section 5000(b)(1) of the Code; (9)
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in Section 3(37)
and 4001(a)(3) of ERISA; and (10) "PROHIBITED TRANSACTION" means a
transaction that is prohibited under Section 4975 of the Code or Section 406 of
ERISA and not exempt under Section 4975 of the Code or Section 408 of ERISA,
respectively.
(b) Neither the Company nor any of its ERISA Affiliates sponsors
or has sponsored, maintained, contributed to, or incurred an obligation to
contribute to, any Employee Pension Benefit Plan (whether or not terminated).
Neither the Company nor any of its ERISA Affiliates sponsors or has sponsored,
maintained, contributed to, or incurred an obligation to contribute to, any
Multiemployer Plan (whether or not terminated).
(c) No Employee Benefit Plan has participated in, engaged in or
been a party to any Prohibited Transaction, and neither the Company nor any of
its ERISA Affiliates has had asserted against it any claim for any material tax
or material penalty imposed under ERISA or the Code with respect to any
Employee Benefit Plan nor, to the best of the Company's knowledge, is there a
basis for any such claim. To the best knowledge of the Company, no officer,
director or employee of the Company has committed a material breach of any
responsibility or obligation imposed upon fiduciaries by Title I of ERISA with
respect to any Employee Benefit Plan, with respect to which breach the Company
is directly or indirectly liable.
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(d) Other than routine claims for benefits, there is no material
claim pending involving any Benefit Plan by any Person against such plan or the
Company or any ERISA Affiliate, nor, to the best of the Company's knowledge, is
any such material claim threatened. There is no pending, or to the best of the
Company's knowledge, threatened Proceeding involving any Employee Benefit Plan
before the IRS, the United States Department of Labor or any other governmental
authority.
(e) No material violation of any reporting or disclosure
requirement imposed by ERISA or the Code exists with respect to any Employee
Benefit Plan.
(f) Each Benefit Plan has been maintained in all material
respects, by its terms and in operation, in accordance with ERISA (if
applicable), the Code and all other applicable federal, state, local and
foreign laws. The Company and its ERISA Affiliates have made full and timely
payment of all amounts required to be (i) contributed under the terms of each
Benefit Plan and such laws, or (ii) required to be paid as expenses under such
Benefit Plan. Each Employee Benefit Plan that is intended to be qualified
under Section 401(a) of the Code either has received a favorable determination
letter with respect to such qualified status from the IRS or has filed a
request for such a determination letter with the IRS within the remedial
amendment period such that such determination of qualified status will apply
from and after the effective date of any such Employee Benefit Plan.
(g) With respect to any Group Health Plans maintained by the
Company or its ERISA Affiliates, whether or not for the benefit of the
Company's employees, the Company and its ERISA Affiliates have complied in all
material respects with the provisions of COBRA.
(h) Except pursuant to the provisions of COBRA, neither the
Company nor any ERISA Affiliate maintains any Employee Benefit Plan that
provides benefits described in Section 3(1) of ERISA to any former employees or
retirees, or the beneficiaries of any of them, of the Company or its ERISA
Affiliates.
3.17 TAX MATTERS.
(a) All deficiencies asserted or assessments made as a result of
any examinations by the Internal Revenue Service or any state, local or foreign
taxing authority have been fully paid, or are fully reflected as a liability in
the Audited Financial Statements. The Company has filed on a timely basis all
Tax Returns required to have been filed by it and has paid on a timely basis
all Taxes required to be shown thereon as due. All such Tax Returns are true,
complete and correct in all material respects. The provisions for taxes in the
Audited Financial Statements have been determined in accordance with GAAP. No
liability for Taxes has been incurred by the Company since the Balance Sheet
Date other than in the ordinary course of its business. No director, officer
or employee of the Company having responsibility for Tax matters has reason to
believe that any Taxing authority has valid grounds to claim or assess any
additional Tax with respect to the Company in excess of the amounts shown in
the Audited Financial Statements for the periods covered thereby. As used in
this Agreement, (1) "TAXES" means (x) all federal, state, local and other net
income, gross income, gross receipts, sales, use, ad valorem, value added,
intangible, unitary, capital gain, transfer, franchise, profits, license,
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lease, service, service use, withholding, backup withholding, payroll,
employment, estimated, excise, severance, stamp, occupation, premium, property,
prohibited transactions, windfall or excess profits, customs, duties or other
taxes, fees, assessments or charges of any kind whatsoever, together with any
interest and any penalties, additions to tax or additional amounts with respect
thereto, (y) any liability for payment of amounts described in clause (x)
whether as a result of transferee liability, of being a member of an
affiliated, consolidated, combined or unitary group for any period, or
otherwise through operation of law and (z) any liability for the payment of
amounts described in clauses (x) or (y) as a result of any tax sharing, tax
indemnity or tax allocation agreement or any other express or implied agreement
to indemnify any other person for Taxes; and the term "TAX" means any one of
the foregoing Taxes; and (2) "TAX RETURNS" means all returns, reports, forms or
other information required to be filed with respect to any Tax.
(b) With respect to all amounts in respect of Taxes imposed upon
the Company, or for which the Company is or could be liable, whether to taxing
authorities (as, for example, under law) or to other persons or entities (as,
for example, under tax allocation agreements), and with respect to all taxable
periods or portions of periods ending on or before the Closing Date, all
applicable Tax laws and agreements have been fully complied with, and all such
amounts required to be paid by the Company to taxing authorities or others have
been paid.
(c) The Company has not received notice that the Internal Revenue
Service or any other taxing authority has asserted against the Company any
deficiency or claim for additional Taxes in connection with any Tax Return, and
no issues have been raised (and are currently pending) by any taxing authority
in connection with any Tax Return. The Company has not received notice that it
is or may be subject to Tax in a jurisdiction in which it has not filed or does
not currently file Tax Returns.
3.18 LABOR AGREEMENTS AND ACTIONS.
(a) No collective bargaining agreement exists that is binding on
the Company, and no petition has been filed or proceedings instituted by an
employee or group of employees with any labor relations board seeking
recognition of a bargaining representative. To the best of the Company's
knowledge, no organizational effort is currently being made or threatened by or
on behalf of any labor union to organize any employees of the Company.
(b) There is no labor strike, dispute, slow down or stoppage
pending or threatened against or directly affecting the Company. No grievance
or arbitration proceeding arising out of or under any collective bargaining
agreement is pending, and no claims therefor exist. The Company has not
received any notice, and has no knowledge of any threatened labor or civil
rights dispute, controversy or grievance or any other unfair labor practice
proceeding or breach of contract claim or action with respect to claims of, or
obligations to, any employee or group of employees of the Company.
(c) All individuals who are performing or have performed services
for the Company and are or were classified by the Company as "independent
contractors" qualify for such classification under Section 530 of the Revenue
Act of 1978 or Section 1706 of the Tax
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Reform Act of 1986, as applicable, except for such instances which would not,
in the aggregate, have a Material Adverse Effect.
3.19 REAL PROPERTY HOLDING CORPORATION STATUS. Since its inception the
Company has not been a "United States real property holding corporation", as
defined in Section 897(c)(2) of the U.S. Internal Revenue Code of 1986, as
amended, and in Section 1.897-2(b) of the Treasury Regulations issued
thereunder (the "REGULATIONS"), and the Company has filed with the Internal
Revenue Service all statements, if any, with its United States income tax
returns which are required under Section 1.897-2(h) of the Regulations.
3.20 FULL DISCLOSURE. The information contained in this Agreement and
the Schedule of Exceptions with respect to the assets, results of operations,
and financial condition of the Company and the transactions contemplated by
this Agreement, the Investor Rights Agreement and the Warrant are true and
complete in all material respects and do not omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
4. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE INVESTOR.
The Investor hereby represents and warrants to the Company, and agrees that:
4.1 AUTHORIZATION. This Agreement constitutes the Investor's valid and
legally binding obligation, enforceable in accordance with its terms except as
may be limited by (a) applicable bankruptcy, insolvency, reorganization or
other laws of general application relating to or affecting the enforcement of
creditors' rights generally and (b) the effect of rules of law governing the
availability of equitable remedies. The Investor has full corporate power and
authority to enter into this Agreement and the Investor Rights Agreement.
4.2 PURCHASE FOR OWN ACCOUNT. The Purchased Shares and the Warrant to
be purchased by the Investor hereunder will be acquired for investment for the
Investor's own account, not as a nominee or agent, and not with a view to the
public resale or distribution thereof within the meaning of the 1933 Act, and
the Investor has no present intention of selling, granting any participation
in, or otherwise distributing the same. The Investor also represents that it
has not been formed for the specific purpose of acquiring the Purchased Shares
and the Warrant.
4.3 DISCLOSURE OF INFORMATION. The Investor has received or has had
full access to all the information it considers necessary or appropriate to
make an informed investment decision with respect to the Purchased Shares and
the Warrant to be purchased by the Investor under this Agreement. The Investor
further has had an opportunity to ask questions and receive answers from the
Company regarding the terms and conditions of the offering of the Purchased
Shares, the Warrant and the Warrant Shares and to obtain additional information
(to the extent the Company possessed such information or could acquire it
without unreasonable effort or expense) necessary to verify any information
furnished to the Investor or to which the Investor had access. The foregoing,
however, does not in any way limit or modify the representations and warranties
made by the Company in Section 3.
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4.4 INVESTMENT EXPERIENCE. The Investor understands that the purchase
of the Purchased Shares and the Warrant involves substantial risk. The
Investor: (a) has experience as an investor in securities of companies and
acknowledges that it is able to fend for itself, can bear the economic risk of
its investment in the Purchased Shares and the Warrant and has such knowledge
and experience in financial or business matters that it is capable of
evaluating the merits and risks of this investment in the Purchased Shares and
the Warrant and protecting its own interests in connection with this investment
and/or (b) has a preexisting personal or business relationship with the Company
and certain of its officers, directors or controlling persons of a nature and
duration that enables the Investor to be aware of the character, business
acumen and financial circumstances of such persons.
4.5 ACCREDITED INVESTOR STATUS. The Investor is an "accredited
investor" within the meaning of Regulation D promulgated under the 1933 Act.
4.6 RESTRICTED SECURITIES. The Investor understands that the Purchased
Shares and the Warrant to be purchased by the Investor hereunder, and any
Warrant Shares to be purchased by the Investor upon exercise of the Warrant,
are characterized as "restricted securities" under the 1933 Act inasmuch as
they are being acquired from the Company in a transaction not involving a
public offering and that under the 1933 Act and applicable regulations
thereunder such securities may be resold without registration under the 1933
Act only in certain limited circumstances. The Investor is familiar with Rule
144 of the SEC, as presently in effect, and understands the resale limitations
imposed thereby and by the 1933 Act. The Investor understands that the Company
is under no obligation to register any of the securities sold hereunder except
as provided in the Investor Rights Agreement.
4.7 FURTHER LIMITATIONS ON DISPOSITION. Without in any way limiting the
representations set forth above, the Investor further agrees not to make any
disposition of all or any portion of the Purchased Shares, the Warrant, or the
Warrant Shares unless and until:
(a) there is then in effect a registration statement under the
1933 Act covering such proposed disposition and such disposition is made in
accordance with such registration statement; or
(b) the Investor has notified the Company of the proposed
disposition and has furnished the Company with a statement of the circumstances
surrounding the proposed disposition, and the Investor has furnished the
Company, at the expense of the Investor or its transferee, with an opinion of
counsel, reasonably satisfactory to the Company, that such disposition will not
require registration of such securities under the 1933 Act.
Notwithstanding the provisions of paragraphs (a) and (b) of this Section 4.7,
no such registration statement or opinion of counsel will be required for any
transfer of any Purchased Shares, the Warrant, or any Warrant Shares in
compliance with SEC Rule 144, Rule 144A or Rule 145(d), or if such transfer
otherwise is exempt, in the view of the Company's legal counsel, from the
registration requirements of the 1933 Act, provided that, in the case of any
transfer that is otherwise exempt, the transferee agrees in writing to be
subject to the terms of this Section 4 to the same extent as if the transferee
were the original Investor hereunder.
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4.8 LEGENDS. Certificates evidencing the Purchased Shares and the
Warrant Shares will bear each of the legends set forth below and the Warrant
will bear the legends set forth in (a) and (c) below:
(a) THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD
EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS,
PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE
THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE ISSUER
TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE
ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
(b) THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS SPECIFIED IN A CERTAIN INVESTOR RIGHTS AGREEMENT BETWEEN
THE COMPANY AND THE ORIGINAL HOLDER OF SUCH SHARES DATED AS OF DECEMBER 18,
1995, A COPY OF WHICH IS AVAILABLE FOR EXAMINATION AT THE ISSUER'S PRINCIPAL
OFFICE.
(c) Any legends required by any applicable state securities laws.
The legend set forth in Section 4.8(a) hereof will be removed by the Company
from any certificate evidencing Purchased Shares or the Warrant Shares upon
delivery to the Company of an opinion by counsel, reasonably satisfactory to
the Company, that a registration statement under the 1933 Act is at that time
in effect with respect to the legended security or that such security can be
freely transferred in a public sale without such a registration statement being
in effect and that such transfer will not jeopardize the exemption or
exemptions from registration pursuant to which the Company issued the Purchased
Shares, the Warrant or the Warrant Shares.
5. CONDITIONS TO THE INVESTOR'S OBLIGATIONS AT CLOSING. The obligations
of the Investor under Sections 1 and 2 of this Agreement are subject to the
fulfillment or waiver, on or before the Closing (defined in Section 2.1), of
each of the following conditions:
5.1 REPRESENTATIONS AND WARRANTIES TRUE. Each of the representations
and warranties of the Company contained in Section 3 will be true and correct
on and as of the Closing, except as set forth in the Schedule of Exceptions, as
amended through the Closing, with the same effect as though such
representations and warranties had been made as of the Closing.
5.2 PERFORMANCE. The Company will have performed and complied with all
agreements, obligations and conditions contained in this Agreement that are
required to be
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performed or complied with by it on or before the Closing and will have
obtained all approvals, consents and qualifications necessary to complete the
purchase and sale described herein.
5.3 COMPLIANCE CERTIFICATE. The Company will have delivered to the
Investor at the Closing a certificate signed on its behalf by its Chief
Executive Officer or Chief Financial Officer certifying that the conditions
specified in Sections 5.1 and 5.2 hereof have been fulfilled.
5.4 SECURITIES EXEMPTIONS. The offer and sale of the Purchased Shares
and the Warrant to the Investor pursuant to this Agreement will be exempt from
the registration requirements of the 1933 Act and the registration and/or
qualification requirements of all applicable state securities laws.
5.5 PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in
connection with the transactions contemplated at the Closing and all documents
incident thereto will be reasonably satisfactory in form and substance to the
Investor, and the Investor will have received all such counterpart originals
and certified or other copies of such documents as it may reasonably request.
Such documents shall include (but not be limited to) the following:
(a) CERTIFIED CHARTER DOCUMENTS. A copy of (i) the Certificate of
Incorporation certified as of a recent date by the Secretary of State of
Delaware as a complete and correct copy thereof, and (ii) the Bylaws of the
Company (as amended through the date of the Closing) certified by the Secretary
of the Company as true and correct copies thereof as of the Closing.
(b) BOARD RESOLUTIONS. A copy, certified by the Secretary of the
Company, of the resolutions of the Board of Directors of the Company providing
for the approval of this Agreement and the Investor Rights Agreement and the
issuance of the Purchased Shares and the Warrant and the other matters
contemplated hereby.
5.6 OPINION OF COMPANY COUNSEL. The Investors will have received an
opinion of Company counsel, dated as of the date of the Closing, substantially
in the form attached hereto as EXHIBIT D.
5.7 WARRANT AND INVESTOR RIGHTS AGREEMENT. The Company will have issued
the Warrant and will have executed and delivered the Investor Rights Agreement
substantially in the form attached to this Agreement as EXHIBIT E (the
"INVESTOR RIGHTS AGREEMENT").
5.8 TECHNOLOGY AGREEMENT. (a) The Company will have executed and
delivered the Technology Agreement between the Company and the Investor
relating to the licensing, marketing and development of certain of the
Company's system-level software designed for use with desktop computer and
server computer products (the "TECHNOLOGY AGREEMENT"), and (b) the Company and
the Investor shall have agreed to a Transition Plan pursuant to Section 13 of
the Technology Agreement.
5.9 NO MATERIAL ADVERSE EFFECT. Between the date hereof and the
Closing, there shall not have occurred any Material Adverse Effect.
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6. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING. The obligations of
the Company to the Investor under this Agreement are subject to the fulfillment
or waiver on or before the Closing (defined in Section 2.1), of each of the
following conditions:
6.1 REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties of the Investor contained in Section 4 will be true and correct on
the date of the Closing with the same effect as though such representations and
warranties had been made as of the Closing.
6.2 PAYMENT OF PURCHASE PRICE. The Investor will have delivered to the
Company the full purchase price of the Purchased Shares as specified in Section
1.2 and the full purchase price of the Warrant as specified in Section 1.4, in
accordance with the provisions of Section 2.
6.3 SECURITIES EXEMPTIONS. The offer and sale of the Purchased Shares
and the Warrant to the Investor pursuant to this Agreement will be exempt from
the registration requirements of the 1933 Act and the registration and/or
qualification requirements of all applicable state securities laws.
6.4 PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in
connection with the transactions contemplated at the Closing and all documents
incident thereto will be reasonably satisfactory in form and substance to the
Company and to the Company's legal counsel, and the Company will have received
all such counterpart originals and certified or other copies of such documents
as it may reasonably request.
6.5 INVESTOR RIGHTS AGREEMENT. The Investor will have executed and
delivered the Investor Rights Agreement.
6.6 TECHNOLOGY AGREEMENT. (a) The Investor will have executed and
delivered the Technology Agreement, and (b) the Company and the Investor shall
have agreed to a Transition Plan pursuant to Section 13 of the Technology
Agreement.
7. INDEMNIFICATION.
7.1 AGREEMENT TO INDEMNIFY.
(a) The Investor, its Affiliates and Associates, and each officer,
director, shareholder, employer, representative and agent of any of the
foregoing (collectively, the "INVESTOR INDEMNITEES") shall each be
indemnified and held harmless to the extent set forth in this Section 7 by the
Company with respect to any and all Damages incurred by any Investor Indemnitee
as a proximate result of any inaccuracy or misrepresentation in, or breach of,
any representation, warranty, covenant or agreement made by the Company in this
Agreement, the Investor Rights Agreement or the Warrant (including any Exhibits
and Schedules hereto).
(b) COMPANY INDEMNITY. The Company, its respective Affiliates and
Associates, and each officer, director, shareholder, employer, representative
and agent of any of the foregoing (collectively, the "COMPANY INDEMNITEES")
shall each be indemnified and held
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harmless to the extent set forth in this Section 7, by the Investor, in respect
of any and all Damages incurred by any Company Indemnitee as a result of any
inaccuracy or misrepresentation in, or breach of, any representation, warranty,
covenant or agreement made by the Investor in this Agreement or the Investor
Rights Agreement.
(c) EQUITABLE RELIEF Nothing set forth in this Section 7 shall be
deemed to prohibit or limit any Investor Indemnitee's or Company Indemnitee's
right at any time before, on or after the Closing Date, to seek injunctive or
other equitable relief for the failure of any Indemnifying Party to perform or
comply with any covenant or agreement contained herein.
7.2 SURVIVAL. All representations and warranties of the Investor and
the Company contained herein or in the Investor Rights Agreement or the
Warrant, and all claims of any Investor Indemnitee or Company Indemnitee in
respect of any inaccuracy or misrepresentation in or breach thereof, shall
survive the Closing until the later of (i) the date of termination of the Right
of Participation under the Investor Rights Agreement, and (ii) the third
anniversary of the date of this Agreement, regardless of whether the applicable
statute of limitations, including extensions thereof, may expire. All
covenants and agreements of the Investor and the Company contained herein or in
the Investor Rights Agreement or the Warrant shall survive the Closing. All
claims of any Investor Indemnitee or Company Indemnitee in respect of any
breach of such covenants or agreements shall survive the Closing until the
expiration of two years following the non-breaching party's obtaining actual
knowledge of such breach.
7.3 CLAIMS FOR INDEMNIFICATION. If any Investor Indemnitee or Company
Indemnitee (an "INDEMNITEE") shall believe that such Indemnitee is entitled to
indemnification pursuant to this Section 7 in respect of any Damages, such
Indemnitee shall give the appropriate Indemnifying Party (which for purposes
hereof, in the case of an Investor Indemnitee, means the Company, and in the
case of a Company Indemnitee, means the Investor) prompt written notice
thereof. Any such notice shall set forth in reasonable detail and to the
extent then known the basis for such claim for indemnification. The failure of
such Indemnitee to give notice of any claim for indemnification promptly shall
not adversely affect such Indemnitee's right to indemnity hereunder except to
the extent that such failure adversely affects the right of the Indemnifying
Party to assert any reasonable defense to such claim. Each such claim for
indemnity shall expressly state that the Indemnifying Party shall have only the
twenty (20) business day period referred to in the next sentence to dispute or
deny such claim. The Indemnifying Party shall have twenty (20) business days
following its receipt of such notice either (a) to acquiesce in such claim by
giving such Indemnitee written notice of such acquiescence or (b) to object to
the claim by giving such Indemnitee written notice of the objection. If
Indemnifying Party does not object thereto within such twenty (20) business day
period, such Indemnitee shall be entitled to be indemnified for all Damages
reasonably and proximately incurred by such Indemnitee in respect of such
claim. If the Indemnifying Party objects to such claim in a timely manner, the
senior management of the Company and Investor shall meet to attempt to resolve
such dispute. If the dispute cannot be resolved by the senior management,
either party may make a written demand for formal dispute resolution and
specify therein the scope of the dispute. Within thirty days after such
written notification, the parties agree to meet for one day with an impartial
mediator and consider dispute resolution alternatives other than litigation.
If an alternative method of dispute resolution is not agreed upon within
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thirty days after the one day mediation, either party may begin litigation
proceedings. Nothing in this section shall be deemed to require arbitration.
7.4 DEFENSE OF CLAIMS. In connection with any claim that may give rise
to indemnity under this Section 7 resulting from or arising out of any claim or
Proceeding against an Indemnitee by a person or entity that is not a party
hereto, the Indemnifying Party may but shall not be obligated to (unless such
Indemnitee elects not to seek indemnity hereunder for such claim), upon written
notice to the relevant Indemnitee, assume the defense of any such claim or
Proceeding if the Indemnifying Party with respect to such claim or Proceeding
acknowledges to the Indemnitee the Indemnitee's right to indemnity pursuant
hereto to the extent provided herein (as such claim may have been modified
through written agreement of the parties or arbitration hereunder) and provide
assurances, satisfactory to such Indemnitee, that the Indemnifying Party will
be financially able to satisfy such claim to the extent provided herein if such
claim or Proceeding is decided adversely. If the Indemnifying Party assumes
the defense of any such claim or Proceeding, the Indemnifying Party shall
select counsel reasonably acceptable to such Indemnitee to conduct the defense
of such claim or Proceeding, shall take all steps necessary in the defense or
settlement thereof and shall at all times diligently and promptly pursue the
resolution thereof. If the Indemnifying Party shall have assumed the defense
of any claim or Proceeding in accordance with this Section 7.4, the
Indemnifying Party shall be authorized to consent to a settlement of, or the
entry of any judgment arising from, any such claim or Proceeding, without the
prior written consent of such Indemnitee; PROVIDED, HOWEVER, that the
Indemnifying Party shall pay or cause to be paid all amounts arising out of
such settlement or judgment concurrently with the effectiveness thereof;
PROVIDED, FURTHER, that the Indemnifying Party shall not be authorized to
encumber any of the assets of any Indemnitee or to agree to any restriction
that would apply to any Indemnitee or to its conduct of business; and PROVIDED,
FURTHER, that a condition to any such settlement shall be a complete release of
such Indemnitee and its Affiliates, directors, officers, employees and agents
with respect to such claim, including any reasonably foreseeable collateral
consequences thereof. Such Indemnitee shall be entitled to participate in (but
not control) the defense of any such action, with its own counsel and at its
own expense. Each Indemnitee shall, and shall cause each of its Affiliates,
directors, officers, employees and agents to, cooperate fully with the
Indemnifying Party in the defense of any claim or Proceeding being defended by
the Indemnifying Party pursuant to this Section 7.4. If the Indemnifying Party
does not assume the defense of any claim or Proceeding resulting therefrom in
accordance with the terms of this Section 7.4, such Indemnitee may defend
against such claim or Proceeding in such manner as it may deem appropriate,
including settling such claim or Proceeding after giving notice of the same to
the Indemnifying Party, on such terms as such Indemnitee may deem appropriate.
If any Indemnifying Party seeks to question the manner in which such Indemnitee
defended such claim or Proceeding or the amount of or nature of any such
settlement, such Indemnifying Party shall have the burden to prove by a
preponderance of the evidence that such Indemnitee did not defend such claim or
Proceeding in a reasonably prudent manner.
7.5 CERTAIN DEFINITIONS. As used in this Section 7, (a) "AFFILIATE"
means, with respect to any person or entity, any person or entity directly or
indirectly controlling, controlled by or under direct or indirect common
control with such other person or entity; (b) "ASSOCIATE" means, when used to
indicate a relationship with any person or entity, (1) any other person or
entity of which such first person or entity is an officer, director or partner
or is, directly or
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indirectly, the beneficial owner of ten percent (10%) or more of any class of
equity securities, membership interests or other comparable ownership interests
issued by such other person or entity, (2) any trust or other estate in which
such first person or entity has a ten percent (10%) or more beneficial interest
or as to which such first person or entity serves as trustee or in a similar
fiduciary capacity, and (3) any relative or spouse of such first person or
entity who has the same home as such first person or entity or who is a
director or officer of such first person or entity; (c) "DAMAGES" means all
demands, claims, actions or causes of action, assessments, losses, damages,
costs, expenses, liabilities, judgments, awards, fines, response costs,
sanctions, taxes, penalties, charges and amounts paid in settlement, including
(1) interest on cash disbursements in respect of any of the foregoing at the
prime rate of Bank of America, NT & SA, as in effect from time to time,
compounded quarterly, from the date each such cash disbursement is made until
the date the party incurring such cash disbursement shall have been indemnified
in respect thereof, and (2) reasonable out-of-pocket costs, fees and expenses
(including reasonable costs, fees and expenses of attorneys, accountants and
other agents of, or other parties retained by, such party), less net tax
benefits and insurance proceeds actually realized and attributable thereto, and
(d) "PROCEEDING" means any action, suit, hearing, arbitration, audit,
proceeding (public or private) or investigation that is brought or initiated by
or against any federal, state, local or foreign governmental authority or any
other person or entity.
8. MISCELLANEOUS.
8.1 SUCCESSORS AND ASSIGNS. The terms and conditions of this Agreement
will inure to the benefit of and be binding upon the respective successors and
assigns of the parties.
8.2 GOVERNING LAW. This Agreement will be governed by and construed
under the internal laws of the State of Delaware as applied to agreements among
Delaware residents entered into and to be performed entirely within Delaware,
without reference to principles of conflict of laws or choice of laws.
8.3 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
8.4 HEADINGS. The headings and captions used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting
this Agreement. All references in this Agreement to sections, paragraphs,
exhibits and schedules will, unless otherwise provided, refer to sections and
paragraphs hereof and exhibits and schedules attached hereto, all of which
exhibits and schedules are incorporated herein by this reference.
8.5 NOTICES. Unless otherwise provided, any notice required or
permitted under this Agreement will be given in writing and will be deemed
effectively given upon personal delivery to the party to be notified, or three
(3) business days after deposit with the United States Post Office, by
registered or certified mail, postage prepaid, or by deposit with a nationally
recognized courier service such as Fedex, or by facsimile with confirmed
receipt and addressed to the party to be notified at the address indicated for
such party on the signature page hereof or at such other address as the
Investor or the Company may designate by giving at least ten (10) days advance
written notice pursuant to this Section 8.5.
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8.6 NO FINDER'S FEES. Each party represents that it neither is nor will
be obligated for any finder's or broker's fee or commission in connection with
this transaction other than the fee payable by the Company to Broadview
Associates. The Investor will indemnify and hold harmless the Company from any
liability for any commission or compensation in the nature of a finders' or
broker's fee for which the Investor or any of its officers, partners, employees
or consultants, or representatives is responsible. The Company will indemnify
and hold harmless the Investor from any liability for any commission or
compensation in the nature of a finder's or broker's fee for which the Company
or any of its officers, employees or consultants or representatives is
responsible.
8.7 AMENDMENTS AND WAIVERS. This Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in
a particular instance and either retroactively or prospectively), only with the
written consent of the Company and the holders of Purchased Shares and/or
Warrant Shares representing at least a majority of the total aggregate number
of Purchased Shares and Warrant Shares then outstanding (excluding any of such
shares that have been sold to the public or pursuant to SEC Rule 144). Any
amendment or waiver effected in accordance with this Section 8.7 will be
binding upon the Investor, the Company and their respective successors and
assigns.
8.8 SEVERABILITY. If any provision of this Agreement is held to be
unenforceable under applicable law, such provision will be excluded from this
Agreement and the balance of the Agreement will be interpreted as if such
provision were so excluded and will be enforceable in accordance with its terms.
8.9 ENTIRE AGREEMENT. This Agreement, together with all Exhibits and
schedules hereto, constitutes the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersedes any and all
prior negotiations, correspondence, agreements, understandings duties or
obligations between the parties with respect to the subject matter hereof.
8.10 FURTHER ASSURANCES. From and after the date of this Agreement,
upon the request of the Investor or the Company, the Company and the Investor
will execute and deliver such instruments, documents or other writings as may
be reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
8.11 FEES, COSTS AND EXPENSES. All fees, costs and expenses (including,
without limitation, attorneys' fees and expenses) incurred by either party
hereto in connection with the preparation, negotiation and execution of this
Agreement, the Investor Rights Agreement and the Warrant, and the consummation
of the transactions contemplated hereby and thereby, shall be the sole and
exclusive responsibility of such party.
[The remainder of this page is intentionally left blank.]
-19-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
PHOENIX TECHNOLOGIES LTD. INTEL CORPORATION
2770 De La Cruz Boulevard 2200 Mission College Boulevard
Santa Clara, California 95050 Santa Clara, California 95052-8119
By: /s/ SCOTT C. NEELY By: /s/ ARVIND SODHANI
-------------------------- --------------------------------
Name: Scott C. Neely Name: Arvind Sodhani
------------------------ ------------------------------
Title: VP and General Counsel Title: Vice President and Treasurer
----------------------- -----------------------------
Date signed: 12/18/95 Date signed: 12/18/95
----------------- -----------------------
[SIGNATURE PAGE TO COMMON STOCK AND WARRANT PURCHASE AGREEMENT]
- 20 -
<PAGE>
EXHIBIT 11.1
PHOENIX TECHNOLOGIES LTD.
COMPUTATION OF EARNINGS PER SHARE
PRIMARY EARNINGS PER SHARE
(in thousands)
<TABLE>
<CAPTION>
Three Months Ended
December 31,
------------------
1995 1994
---- ----
<S> <C> <C>
Net income $ 2,067 $ 1,569
------- -------
------- -------
Weighted average number of common shares outstanding 13,968 13,438
Weighted average number of common equivalent shares 1,339 1,337
------- -------
Weighted average number of common and common
equivalent shares outstanding 15,307 14,775
------- -------
------- -------
Net income per common share $ 0.14 $ 0.11
------- -------
------- -------
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> SEP-30-1996
<PERIOD-START> OCT-01-1995
<PERIOD-END> DEC-31-1995
<CASH> 19840
<SECURITIES> 14598
<RECEIVABLES> 13198
<ALLOWANCES> 458
<INVENTORY> 0
<CURRENT-ASSETS> 51602
<PP&E> 12714
<DEPRECIATION> 9696
<TOTAL-ASSETS> 65530
<CURRENT-LIABILITIES> 12072
<BONDS> 0
0
0
<COMMON> 14
<OTHER-SE> 53324
<TOTAL-LIABILITY-AND-EQUITY> 65530
<SALES> 12238
<TOTAL-REVENUES> 14245
<CGS> 1334
<TOTAL-COSTS> 2939
<OTHER-EXPENSES> 8842
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 43
<INCOME-PRETAX> 2464
<INCOME-TAX> 800
<INCOME-CONTINUING> 2067
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2067
<EPS-PRIMARY> .14
<EPS-DILUTED> .13
</TABLE>
