<PAGE>
As filed with the Securities and Exchange Commission on July 7, 1999
Registration No. 333-77855
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
Amendment No. 4
To
FORM S-1
REGISTRATION STATEMENT
Under the Securities Act of 1933
---------------
BE INCORPORATED
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
Delaware 7371 94-3123667
<S> <C> <C>
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or Classification Code Number) Identification No.)
organization)
</TABLE>
---------------
800 El Camino Real
Suite 400
Menlo Park, CA 94025
(650) 462-4100
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
---------------
Jean-Louis F. Gassee
Chief Executive Officer
Be Incorporated
800 El Camino Real
Suite 400
Menlo Park, CA 94025
(650) 462-4100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------
Copies to:
<TABLE>
<S> <C>
Andrei M. Manoliu, Esq. Michael J. Halloran, Esq.
Tomas C. Tovar, Esq. Katharine A. Martin, Esq.
Frank F. Rahmani, Esq. Dawn C. Steele, Esq.
Cooley Godward LLP Pillsbury Madison & Sutro LLP
Five Palo Alto Square 2550 Hanover Street
3000 El Camino Real Palo Alto, CA 94304-1115
Palo Alto, CA 94306-2155 (650) 233-4500
(650) 843-5000
</TABLE>
---------------
Approximate date of proposed sale to the public: As soon as practicable after
this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
<CAPTION>
Title of Securities to be Amounts to be Proposed Maximum Amount of
Registered Registered (1) Aggregate Offering Price (2) Registration Fee (3)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Common stock, $.001 par value... 6,900,000 $69,000,000 $19,182
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Includes shares that the Underwriters have the option to purchase solely to
cover over-allotments.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee in accordance with Rule 457(a) under the Securities Act of
1933.
(3) This amount was previously paid.
---------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment that specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
Information Not Required In Prospectus
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by the Registrant in connection
with the distribution of the common stock being registered. All amounts are
estimated, except the SEC Registration Fee, the NASD Filing Fee and the Nasdaq
National Market Filing Fee:
<TABLE>
<S> <C>
SEC Registration Fee............................................. 19,182
NASD Filing Fee.................................................. 5,900
Nasdaq National Market Filing Fee................................ 95,000
Blue Sky Fees and Expenses....................................... 5,000
Accounting Fees.................................................. 300,000
Legal Fees and Expenses.......................................... 350,000
Transfer Agent and Registrar Fees................................ 10,000
Printing and Engraving........................................... 150,000
Miscellaneous.................................................... 165,918
----------
Total........................................................ $1,100,000
==========
</TABLE>
Item 14. Indemnification of Directors and Officers
The Registrant's Amended and Restated Certificate of Incorporation, filed as
Exhibit 3.1 to the Registration Statement, provides that directors of the
Registrant shall not be personally liable to the Registrant or its stockholders
for monetary damages for breach of fiduciary duty as a director, to the fullest
extent permitted by the Delaware General Corporation Law. The Registrant's
bylaws, filed as Exhibit 3.2 to the Registration Statement, provide for
indemnification of officers and directors to the full extent and in the manner
permitted by Delaware law. Section 145 of the Delaware General Corporation Law
makes provision for such indemnification in terms sufficiently broad to cover
officers and directors under certain circumstances for liabilities arising
under the Securities Act of 1933, as amended (the "Securities Act").
The Registrant intends to enter into indemnification agreements with each
director and certain officers which provide indemnification under certain
circumstances for acts and omissions which may not be covered by any directors'
and officers' liability insurance.
The form of Underwriting Agreement, filed as Exhibit 1.1 to the Registration
Statement, provides for indemnification of the Registrant and its controlling
persons against certain liabilities under the Securities Act.
Item 15. Recent Sales of Unregistered Securities
(a) Since January 1, 1996, the Company has issued and sold (without payment
or any selling commissions to any person) the following registered securities:
(1) Since January 1, 1996, the Registrant issued 50,000 shares of common stock
(net of repurchases) to one director at a weighted average purchase price
of $0.10 per share. The sale and issuance of these securities were deemed
to be exempt from registration under the Securities Act by virtue of
Section 4(2) and Rule 701.
(2) Since January 1, 1996 and through March 31, 1999, the Registrant has
granted stock options to purchase 11,435,126 shares of common stock (net of
cancellations/expirations) to a total of 145 employees,
II-1
<PAGE>
consultants and non-employee directors at a weighted average exercise price
of $1.85 per share pursuant to the Company's stock plans. The sale and
issuance of these securities were deemed to be exempt from registration
under the Securities Act by virtue of Section 4(2), Rule 701 or Regulation
S.
(3) On April 12, 1996, the Registrant issued and sold shares of Series 1
Convertible Preferred Stock convertible to an aggregate of 14,116,000
shares of common stock to a total of 45 private investors for an aggregate
purchase price of $14,116,000. The sale and issuance of these securities
were deemed to be exempt from registration under the Securities Act by
virtue of Section 4(2), Regulation D or Regulation S.
(4) On February 4, 1998 and December 23, 1998, the Registrant issued and sold
shares of Series 2 Convertible Preferred Stock convertible to an aggregate
of 8,276,730 shares of common stock to a total of 34 private investors for
an aggregate purchase price of $26,899,372.50. The sale and issuance of
these securities were deemed to be exempt from registration under the
Securities Act by virtue of Section 4(2), Regulation D or Regulation S.
(5) As of March 31, 1999, 5,524,779 shares of common stock had been issued
upon exercise of options and 1,943,347 shares of common stock were
issuable upon exercise of outstanding options under the Registrant's 1992
Stock Option Plan. The sale and issuance of these securities were deemed
to be exempt from registration under the Securities Act by virtue of
Section 4(2) and Rule 701.
(6) On April 12, 1996, the Registrant issued warrants to purchase an aggregate
of 1,219,648 shares of common stock to 28 private investors for an
aggregate exercise price of $1.00. The sale and issuance of these
securities were deemed to be exempt from registration under the Securities
Act by virtue of Section 4(2), Regulation D or Regulation S.
(7) On May 31, 1998 and December 23, 1998, the Company issued warrants to
purchase an aggregate of 112,875 shares of common stock to Cowen & Company
for an aggregate exercise price of $3.58 as payment of investor banking
fees. The sale and issuance of these securities were deemed to be exempt
from registration under the Securities Act by virtue of Section 4(2) and
Regulation D.
(8) On July 20, 1998 and December 23, 1998, the Company issued shares of
Series 2 Convertible Preferred Stock convertible into an aggregate of
106,144 shares of common stock to Cowen & Company as payment of investor
banking fees. The sale and issuance of these securities were deemed to be
exempt from registration under the Securities Act by virtue of Section
4(2) and Regulation D.
(9) On December 23, 1998, the Registrant issued warrants to purchase an
aggregate of 1,538,462 shares of common stock to Intel Corporation for an
aggregate exercise price of $3.25. The sale and issuance of these
securities were deemed to be exempt from registration under the Securities
Act by virtue of Section 4(2) and Regulation D.
The issuance described in Item 15(a)(1) was or will be exempt from
registration under Section 2(3) of the Securities Act on the basis that such
transaction did not involve a "sale" of securities.
The sales and issuances of securities in the above transactions deemed to be
exempt from registration under the Securities Act by virtue of Section 4(2),
Regulation S or Rule 701 promulgated thereunder, are transactions by an issuer
not involving any public offering, in that the purchasers in each case
represented their intention to acquire the securities for investment only and
not with a view to the distribution thereof, received either adequate
information about the Registrant or had access, through employment or other
relationship, to such information, and the securities were offered and sold,
either pursuant to a written compensatory benefit plan or pursuant to a
written contract relating to compensation as provided by Rule 701. Appropriate
legends are affixed to the stock certificates issued in such transactions.
The sales and issuances of securities in the above transactions deemed to be
exempt from registration under the Securities Act by virtue of Section 4(2),
Regulation D or Regulation S promulgated thereunder are transactions by an
issuer not involving any public offering. The purchasers in each case
represented their intention to acquire the securities for investment only and
not with a view to the distribution thereof. Appropriate legends are affixed
to the stock certificates issued in such transactions. Similar legends were
imposed in connection with any subsequent sales of any such securities. All
recipients received either adequate information about the Registrant or had
access, through employment or other relationships, to such information.
II-2
<PAGE>
There were no underwritten offerings employed in connection with any of the
transactions set forth in Item 15(a).
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
<TABLE>
<C> <S>
1.1* Form of Underwriting Agreement
3.1* Form of Amended and Restated Certificate of Incorporation to be filed
upon the closing of the offering made pursuant to this registration
statement.
3.2* Bylaws
4.1* Form of common stock certificate
4.2* Form of Warrant to purchase an aggregate of up to 1,219,648 shares of
common stock issued in connection with Series 1 convertible preferred
stock financing.
4.3* Warrant to purchase up to 103,177 shares of common stock, dated May
31, 1998, issued by Be Incorporated to Financial Square Partners, L.P.
4.4* Warrant to purchase up to 9,688 shares of common stock, dated December
23, 1998, issued by Be Incorporated to Financial Square Partners, L.P.
4.5* Warrant to purchase up to 1,538,462 shares of common stock, dated
December 23, 1998, issued by Be Incorporated to Intel Corporation.
4.6* Amended and Restated Investor's Rights Agreement, dated February 4,
1998.
5.1* Opinion of Cooley Godward LLP
10.1* Form of Indemnity Agreement by and between Be Incorporated and its
directors and officers
10.2.1* 1992 Stock Option Plan
10.2.2* Form of 1992 Stock Option Agreement
10.3.1* 1999 Equity Incentive Plan
10.3.2* Form of 1999 Equity Incentive Plan Stock Option Agreement
10.3.3* Form of 1999 Stock Option Grant Notice
10.4.1* Employee Stock Purchase Plan
10.4.2* Form of Employee Stock Purchase Plan Offering
10.5.1* 1999 Non-Employee Directors' Stock Option Plan
10.5.2* Form of Nonstatutory Stock Option
10.6.1* Office Lease, dated June 24, 1994, by and between Menlo Station
Development and Be Incorporated.
10.6.2* Amendment to Office Lease, dated April 10, 1997, by and between Menlo
Station Development and Be Incorporated.
10.7* Employment Agreement, dated June 22, 1998, by and between Be
Incorporated and Wesley S. Saia.
10.8* Employment Agreement, dated March 12, 1999, by and between Be
Incorporated and Roy Graham.
10.9* Employment Agreement, dated October 9, 1998, by and between Be
Incorporated and Jean R. Calmon.
10.10* Stock Purchase Agreement, dated May 1, 1998, by and among StarCode
Software, Inc., the Stockholders of StarCode Software, Inc., and Be
Incorporated.
10.11+ Software Distribution Agreement, dated November 5, 1998 between Be
Incorporated and Plat'Home Co. Ltd.
21.1* List of Subsidiaries
23.1 Consent of PricewaterhouseCoopers LLP, independent accountants
23.2* Consent of Cooley Godward LLP (included in Exhibit 5.1)
24.1* Power of Attorney
27.1* Financial Data Schedule
</TABLE>
- --------
*Previously filed.
+Confidential treatment requested with respect to portions of this Exhibit.
II-3
<PAGE>
(b) Financial Statement Schedules
Schedule II--Valuation and Qualifying Accounts
Other schedules are omitted because they are not applicable, or because the
information is included in the Financial Statements or the Notes thereto.
Item 17. Undertakings
A. The Registrant hereby undertakes to provide to the underwriters at the
closing specified in the underwriting agreement certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
B. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the provisions described in Item 14 above, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of
whether such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
C. The Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(I) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For purposes of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
II-4
<PAGE>
Signatures
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chicago, State of
Illinois, on July 7, 1999.
Be Incorporated
/s/ Jean-Louis F. Gassee
By:___________________________________
Name: Jean-Louis F. Gassee
Title: President, Chief Executive
Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title(s) Date
--------- -------- ----
<C> <S> <C>
/s/ Jean-Louis F. Gassee President, Chief Executive July 7, 1999
____________________________________ Officer and Director (Principal
Jean-Louis F. Gassee Executive Officer)
/s/ Wesley S. Saia Vice President and Chief July 7, 1999
____________________________________ Financial Officer
Wesley S. Saia
Christian E. Marchandise* Director July 7, 1999
____________________________________
Christian E. Marchandise
Barry M. Weinman* Director July 7, 1999
____________________________________
Barry M. Weinman
Garrett P. Gruener* Director July 7, 1999
____________________________________
Garrett P. Gruener
Stewart Alsop * Director July 7, 1999
____________________________________
Stewart Alsop
</TABLE>
/s/ Jean-Louis F. Gassee /s/ Wesley S. Saia
*By:__________________________ *By:__________________________
Jean-Louis F. Gassee Wesley S. Saia
Attorney-in-fact Attorney-in-fact
II-5
<PAGE>
Report of Independent Accountants on Financial Statement Schedule
To the Board of Directors of Be, Incorporated;
Our audits of the consolidated financial statements referred to in our report
dated April 2, 1999 appearing on page F-2 of this Form S-1 also included an
audit of the financial statement schedule listed under item 16(B) of this Form
S-1. In our opinion, this financial statement schedule presents fairly, in all
material respects, the information set forth therein when read in conjunction
with the related consolidated financial statements.
/s/ PricewaterhouseCoopers LLP
San Jose, California
April 2, 1999
1
<PAGE>
SCHEDULE II
VALUATION AND QUALIFYING ACCOUNTS
(in thousands)
<TABLE>
<CAPTION>
Additions
Balance at Charged to Balance at
Beginning Costs and Ending
of Period Expenses Deductions of Period
<S> <C> <C> <C> <C>
Year Ended December 31, 1996
Allowance for sales returns....... $ -- $ -- $ -- $ --
Year Ended December 31, 1997
Allowance for sales return........ $ -- $ -- $ -- $ --
Year Ended December 31, 1998
Allowance for sales returns....... $ -- $ 17 $ 7 $ 10
</TABLE>
2
<PAGE>
Index to Exhibits
<TABLE>
<CAPTION>
Number Description
------ ----------------------------------------------------------------------
<C> <S>
1.1* Form of Underwriting Agreement
3.1* Form of Amended and Restated Certificate of Incorporation to be filed
upon the closing of the offering made pursuant to this registration
statement.
3.2* Bylaws
4.1* Form of common stock certificate
4.2* Form of Warrant to purchase an aggregate of up to 1,219,648 shares of
common stock issued in connection with Series 1 convertible preferred
stock financing.
4.3* Warrant to purchase up to 103,177 shares of common stock, dated May
31, 1998, issued by Be Incorporated to Financial Square Partners, L.P.
4.4* Warrant to purchase up to 9,688 shares of common stock, dated December
23, 1998, issued by Be Incorporated to Financial Square Partners, L.P.
4.5* Warrant to purchase up to 1,538,462 shares of common stock, dated
December 23, 1998, issued by Be Incorporated to Intel Corporation.
4.6* Amended and Restated Investor's Rights Agreement, dated February 4,
1998.
5.1* Opinion of Cooley Godward LLP
10.1* Form of Indemnity Agreement by and between Be Incorporated and its
directors and officers
10.2.1* 1992 Stock Option Plan
10.2.2* Form of 1992 Stock Option Agreement
10.3.1* 1999 Equity Incentive Plan
10.3.2* Form of 1999 Equity Incentive Plan Stock Option Agreement
10.3.3* Form of 1999 Stock Option Grant Notice
10.4.1* Employee Stock Purchase Plan
10.4.2* Form of Employee Stock Purchase Plan Offering
10.5.1* 1999 Non-Employee Directors' Stock Option Plan
10.5.2* Form of Nonstatutory Stock Option
10.6.1* Office Lease, dated June 24, 1994, by and between Menlo Station
Development and Be Incorporated.
10.6.2* Amendment to Office Lease, dated April 10, 1997, by and between Menlo
Station Development and Be Incorporated.
10.7* Employment Agreement, dated June 22, 1998, by and between Be
Incorporated and Wesley S. Saia.
10.8* Employment Agreement, dated March 12, 1999, by and between Be
Incorporated and Roy Graham.
10.9* Employment Agreement, dated October 9, 1998, by and between Be
Incorporated and Jean R. Calmon.
10.10* Stock Purchase Agreement, dated May 1, 1998, by and among StarCode
Software, Inc., the Stockholders of StarCode Software, Inc., and Be
Incorporated.
10.11+ Software Distribution Agreement, dated November 5, 1998 between Be
Incorporated and Plat'Home Co. Ltd.
21.1* List of Subsidiaries
23.1 Consent of PricewaterhouseCoopers LLP, independent accountants
23.2* Consent of Cooley Godward LLP (included in Exhibit 5.1)
24.1* Power of Attorney
27.1* Financial Data Schedule
</TABLE>
- --------
*Previously filed.
+Confidential treatment requested with respect to portions of this Exhibit.
<PAGE>
Exhibit 10.11
BE INCORPORATED
SOFTWARE DISTRIBUTION AGREEMENT
This Software Distribution Agreement (the "Agreement") is made and entered into
this 5 day of November, 1998 ("Effective Date"), by and between Be Incorporated,
- -------- -
a California corporation having its principal office at 800 El Camino Real,
Suite 300, Menlo Park, California 94025 ("Be"), and Plat'Home Co Ltd, a Japanese
corporation having its principal office at Narita Building, 2-3-6 Sotokanda,
Chiyoda-ku, Tokyo, Japan 101 ("PLATHOME").
In consideration of the mutual covenants and agreements hereinafter set forth,
the parties agree as follows:
1. Definitions. For purposes of this Agreement:
1.1 BeOS. "BeOS" shall mean all or part of those computer programs owned
by or licensed to Be and Licensed Components in machine executable
object code form that make up the BeOS(TM) for Intel(R) X86 platform,
Japanese version currently known as BeOS-J, Release 4.0 or R4-J in
retail packaging.
1.2 End User. "End User" means a licensee of the BeOS who acquires such
for use rather than distribution or resale.
1.3 End User Documentation. "End User Documentation" shall mean Be's
standard user manuals and other written and graphic materials provided
by Be for distribution to End Users with the explicit exclusion of the
Be programming manual known as the BeBook.
1.4 Licensed Components. "Licensed Components" shall mean certain
components of the BeOS which have been licensed to Be, with the right
to further sublicense such components.
2. Rights and Restrictions.
2.1 Appointment; License Grant. Be hereby appoints PLATHOME as a non-
exclusive reseller of the BeOS in Japan during the term of this
Agreement. [*] There are no implied licenses under this Agreement, and
any rights not expressly granted to PLATHOME hereunder are reserved by
Be.
(a) BeOS. Subject to the terms of this Agreement, Be grants to
PLATHOME a non-exclusive, nontransferable right, during and for the
term of this Agreement, to market, sell and distribute (through its
normal distribution channels) the BeOS in Japan only. PLATHOME shall
cause each copy of the BeOS distributed to End Users by PLATHOME, or
by any other third party which PLATHOME grants redistribution rights,
to be
[*] Certain information in this exhibit has been omitted and filed separately
with the Commission. Confidential Treatment has been requested with
respect to the omitted portions.
<PAGE>
subject to an End User License Agreement containing terms that
are no less restrictive of Be's rights than the provisions
contained in Be's standard software end user license attached
hereto as Exhibit A; and any redistribution or resale rights in
the BeOS granted by PLATHOME to any third party shall be subject
to limitations and restrictions at least as great as those set
forth herein.
(b) Trademarks. Subject to the restrictions set forth in
Section 8 and the terms of this Agreement and solely in
connection with PLATHOME's distribution of the BeOS, Be grants to
PLATHOME a limited right to use the trademarks, trade names and
other marketing names used by Be in connection with the BeOS, a
current list of which is set forth in Exhibit B (the "Trademarks
and Trade Names").
2.2 License Restrictions.
(a) PLATHOME acknowledges and agrees that the BeOS contains Be's
proprietary information and in order to protect such information,
PLATHOME shall not, nor shall it allow a third party to, [*]
(b) Except as explicitly set forth in this Agreement, PLATHOME
shall not [*].
(c) PLATHOME shall not [*] without Be's prior written consent.
PLATHOME's rights granted under this Agreement do not include the
right [*].
3. Order, Delivery and Payment.
3.1 Price. PLATHOME shall [*] for copies of the BeOS ordered under
this Agreement. Subject to Section 3.2, Be may change the price
by providing PLATHOME with thirty (30) days prior written notice.
3.2 [*] If the [*] of the BeOS is [*] Be during the term of this
Agreement, Be shall [*]. If the [*] of the BeOS is [*] Be shall
[*]
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential Treatment has been requested with respect to
the omitted portions.
<PAGE>
[*] as of the effective date of the [*].
3.3 Payment. PLATHOME shall pay to Be the amount due for copies of the BeOS
purchased by PLATHOME hereunder [*] for such amount. All such payments
shall be in U.S. Dollars. Any amount not paid when due will [*].
3.4 Terms. The terms and conditions of this Agreement shall apply to all orders
by PLATHOME for the BeOS and supersede any different or additional terms
on purchase orders from, or any general conditions maintained by PLATHOME.
PLATHOME shall submit written orders, by mail, fax or other method, for the
BeOS in accordance with the then-current order processing procedures
established by Be. Be shall use reasonable efforts to make deliveries of
orders so accepted by the requested delivery dates, but Be shall not be
liable for any damages to PLATHOME or to any other person for Be's failure
to fill any orders, or for any delay in delivery or error in filling any
orders for any reason whatsoever.
3.5 Shipments. All shipments will be made [*] warehouse facility to the
delivery address specified by [*]. Delivery will be deemed complete and
risk of loss or damage to the BeOS will pass [*].
3.6 Acceptance. Each shipment shall be deemed accepted by PLATHOME upon
delivery by Be.
3.7 Taxes and Duties. In addition to any other payments due under this
Agreement, PLATHOME agrees to pay, indemnify and hold Be harmless from any
sales, use, excise, import or export, value added or similar tax or duty,
and any other tax or duty not based on Be's net income, including any
penalties and interest, and all government permit, license, customs and
similar fees, and any costs associated with the collection or withholding
of any of the foregoing.
4. UPDATES. Be may from time to time, in its sole discretion, make updates and
bug-fixes to the BeOS publicly available to End Users from Be's website. Be
is under no obligation to provide PLATHOME with any new products or version
of the BeOS.
5. Marketing Obligations. In accordance with the standards set forth in Section
8 PLATHOME shall [*].
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential Treatment has been requested with respect to
the omitted portions.
<PAGE>
6. Warranty.
[*] Be [*] that, [*], including [*]; (ii) it has not [*] under this
agreement; (iii) it will [*] the BeOS, the result of which would
[*] the BeOS [*] under the terms of this Agreement; and (iv) [*] Be [*]
PLATHOME any [*] business from PLATHOME [*].
[*] Be DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NONINFRINGEMENT.
6.3 Support. [*] PLATHOME shall make no warranties to End Users on behalf
of Be and agrees to indemnify and hold Be harmless from any third party
claims based on warranties given in violation of this Agreement.
7. Limitation of Liability.
[*] SHALL BE LIABLE TO [*] UNDER THIS AGREEMENT, OR ARISING OUT OF OR IN
CONNECTION WITH THE USE OF THE LICENSES GRANTED HEREUNDER, FOR ANY AMOUNTS
REPRESENTING LOSS OF PROFITS, LOSS OF BUSINESS OR DATA, OR INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES OF THE OTHER PARTY, WHETHER IN AN ACTION
IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF [*] HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
8. Trademarks, Markings.
8.1 Trademarks and Trade Names. During the term of this Agreement, in
connection with PLATHOME's advertising, promotion and marketing of the BeOS and
in related product brochures and other materials, PLATHOME will use the
Trademarks. Be may from time to time attach other or additional Trademarks or
names to the BeOS. Be grants no other rights than expressly granted
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential Treatment has been requested with respect to
the omitted portions.
<PAGE>
hereunder, and PLATHOME acknowledges Be's exclusive ownership of such marks
and names worldwide. PLATHOME agrees not to take any action inconsistent
with such ownership and further agrees to take, at Be's expense, any
action, including without limitation, the conduct of legal proceedings,
which Be deems necessary to establish and preserve Be's exclusive rights in
and to its Trademarks and trade names.
8.2 Markings. Any reproduction of Be's Trademarks, logos, symbols and
other identifying marks shall be true reproductions. PLATHOME will not
remove or make or permit alterations to any labels or other identifying
markings placed by Be on the BeOS, or its packaging or Documentation.
8.3 Use of Be's Marks and Names. PLATHOME [*] Be's Trademarks in PLATHOME's
[*] subject to Be's prior written approval, which approval shall not be
unreasonably withheld or delayed.
8.4 Use of PLATHOME's Names. Be [*] PLATHOME's name in Be [*], subject to
PLATHOME's prior written approval, which approval shall not unreasonably
withheld or delayed.
9. Confidentiality; Proprietary Rights.
[*] shall be held in confidence by the parties and shall not be
disclosed by either party to any outside party without the prior written
consent of the other party; [*] In such case, [*] shall only occur when [*]
has [*] that is [*].
9.2 Confidential Information. The term "Confidential Information" means
any technical or non-technical information relating to Be, the BeOS,
Documentation and PLATHOME proprietary information, such as product plans,
costs, prices, names, finances, marketing plans, business opportunities,
personnel and the like, which is disclosed by one party ("Disclosing
Party") to the other party ("Receiving Party") [*].
9.3 No Use of Confidential Information for Own Purpose. During this
Agreement, and for [*] after the termination of this Agreement,
Receiving Party agrees to keep Confidential Information of Disclosing
Party in confidence, and shall neither disclose it to any third party nor
use the same for any purposes other than those contained in this Agreement.
[*]
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential Treatment has been requested with repsect to
the omitted portions.
<PAGE>
[*] Nothwithstanding the foregoing, Receiving Party shall have no
confidentiality obligation and no use restriction with respect to any
information that it can sufficiently document that:
(a) the Disclosing Party approved, by prior written consent,
Receiving Party to release or disclose to any third parties;
(b) the Receiving Party already knew, without obligation to keep it
confidential, when received from Disclosing Party;
(c) the Receiving Party received in good faith from a third party
lawfully in possession thereof and having no similar obligation to
keep such information confidential;
(d) was or becomes publicly known to Receiving Party at or after the
Receiving Party received it from Disclosing Party through no fault of
Receiving Party;
(e) the Disclosing Party furnished to a third party without a similar
restriction;
(f) the Receiving Party independently developed without using the
Disclosing Party's Confidential Information; or
(g) is disclosed pursuant to the requirement of a governmental agency
or disclosure is required by operation of law, provided Disclosing
Party shall be given written notice prior to any such disclosure and
an opportunity to challenge such requirement or seek an appropriate
protective order.
9.4 PLATHOME's Ownership. All PLATHOME Confidential Information furnished
to Be pursuant to this Agreement shall remain the property of PLATHOME. All
trademarks, trade names, and other proprietary material furnished by
PLATHOME to Be shall remain the property of PLATHOME. [*].
9.5 Be's Ownership. All Be Confidential Information furnished to PLATHOME
pursuant to this Agreement shall remain the property of Be. All trademarks,
trade names, and other proprietary material furnished by Be to PLATHOME
shall remain the property of Be. [*].
10 Infringement Indemnity.
10.1 Be's Indemnity.
(a) Be shall, at its own expense, defend and hold harmless
PLATHOME against any third party claim, action, suit or proceeding,
that the [*] or the [*]. Be shall indemnify PLATHOME for all losses,
damages and all
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential Treatment has been requested with repsect to
the omitted portions.
<PAGE>
reasonable expenses and costs incurred by PLATHOME as a result
of a final judgement entered against PLATHOME in any such claim,
action, suit or proceeding; provided that PLATHOME gives Be
prompt written notice of any such claim, grants Be control of
the defense and any settlement thereof, and reasonably
cooperates with Be at Be's expense.
(b) If the BeOS, in whole or in part, are or in Be's opinion may
become,[*] of, or if it is judicially determined that the BeOS,
in whole or in part, infringe any third party's U.S. copyright
or patent right, or if the BeOS' use is enjoined, then Be may,
at its option and expense: (1) procure for PLATHOME the right to
continue the BeOS' sale and use; (2) replace or modify the BeOS
so as not to infringe such third party's copyright or patent
right while conforming, as closely as possible, to the End User
Documentation, or (3) terminate this Agreement as to the BeOS.
The foregoing remedial actions shall[*] and[*].
10.2 Limitation of Liability; Exclusive Remedy. (a) Be will have no
liability under Section 10.1 for any infringement claim based
upon: (i) the[*]not listed in this Agreement;(ii) componets or
software which were not manufactured by Be; and (iii) any[*].
(b) SECTIONS 10.1 AND 10.2 STATE Be'S ENTIRE OBLIGATION AND
LIABILITY WITH RESPECT TO ANY CLAIMS OF PATENT, COPYRIGHT OR
OTHER PROPRIETARY RIGHT INFRINGEMENT.
11. PLATHOME's Indmenity. PLATHOME shall, at its own expense, defend and
hold harmless Be against any third party claim, action, suit or
proceeding: (a)[*] any PLATHOME Product[*] or the[*] or (b) resulting
from PLATHOME's[*]. PLATHOME shall indemnify Be for all losses, damages
and all reasonable expenses and costs incurred by Be as a result of a
final judgment entered against Be in any such claim, action, suit or
proceeding; provided that Be gives PLATHOME prompt written notice of any
such claim, grants PLATHOME control of the defense and any settlement
thereof, and reasonably cooperates with PLATHOME at PLATHOME's expense.
12. Term and Termination.
12.1 Term. The term of this Agreement shall begin on the Effective Date
and expire on December 31, 1999 (the "initial Term"), but this Agreement
may be extended by mutual written consent of the parties. Nothing in
this Agreement will be construed as requiring either party to renew or
extend this Agreement.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential Treatment has been requested with respect to
the omitted portions.
<PAGE>
Notwithstanding the foregoing, this Agreement may be terminated pursuant to
Section 12.2 below.
12.2 Termination. In the event of a default by PLATHOME of any of its
obligations hereunder, Be may immediately terminate this Agreement by
providing notice to PLATHOME.[*] Each party understands that the rights of
termination or expiration hereunder are absolute. Neither party shall incur
any liability whatsoever for any damage, loss or expenses of any kind
suffered or incurred by the other arising from or incident to any
termination of this Agreement by such party or any expiration hereof which
complies with the terms of this Agreement whether or not such party is
aware of any such damage, loss or expenses. In particular, without in any
way limiting the foregoing, neither party shall be entitled to any damages
on account of prospective profits or anticipated sales. PLATHOME agrees to
waive the benefit of any law or regulation providing compensation to
PLATHOME arising from the termination or failure to renew this Agreement
and PLATHOME hereby represents and warrants that such waiver is irrevocable
and enforceable by Be.
12.3 Effect of Termination. Upon termination or expiration of this
Agreement:
(a) All licenses and rights granted to PLATHOME under this Agreement
shall terminate;
(b) Each Party shall promptly return to the other all marketing and
selling materials, all manuals, all technical data and all other
documents and copies thereof previously supplied by such other party,
except such documents as are necessary for returning party to provide
support to its End Users;
(c) PLATHOME shall cease using Be's name, trademarks and trade names
and refrain thereafter from representing itself as an OEM of Be;
(d) Termination by either party under this Agreement shall not affect
the sublicenses previously granted by PLATHOME to End Users; and
(e) Any other rights of either party which may have accrued up to the
date of such termination or expiration shall not be affected.
13. General Terms.
13.1 Assignment. Neither party shall have the right to assign its rights
and obligations pursuant to this Agreement, in whole or in part, without
the other party's prior written consent, such consent not be unreasonably
withheld. Each party must notify the other if such party intends to effect
a Change of Control, and any attempted assignment or delegation in
violation of this Section 13.1 shall be void and of no effect.
13.2 Right to Enter Agreement. Each party has full power and authority to
enter into and perform this Agreement, and the person signing this
Agreement on behalf of each has been properly authorized and empowered to
enter into this
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential Treatment has been requested with respect to
the omitted portions.
<PAGE>
Agreement. Each party further acknowledges that it has read this
Agreement, understands it, and agrees to be bound by it.
13.3 Notices. All notices, request, consents and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed effective when mailed by registered or certified mail, postage
prepaid, or transmitted by facsimile to PLATHOME and Be at their respective
addresses and representatives as set forth on the signature page below.
Either party may change its address by written notice to the other.
13.4 Severability and Headings. If any of the provisions, or portions
thereof, of this Agreement is held by a court of competent jurisdiction to
be invalid under any applicable statute or rule of law, the parties agree
that such invalidity shall not affect the validity of the remaining
portions of this Agreement and further agree to substitute for the invalid
provision a valid provision which most closely approximates the intent and
economic effect of the invalid provision. Headings used in this Agreement
are for reference purposes only and in no way define, limit, construe or
describe the scope or extent of such section, or in any way affect this
Agreement.
13.5 Non-Waiver. No term or provisions hereof shall be deemed waived and
no breach excused, unless such waiver or consent shall be in writing and
signed by the party claimed to have waived or consented. Any consent by any
party to, or waiver of, a breach by the other, whether express or implied,
shall not constitute a consent to, waiver of, or excuse for any other
different or subsequent breach.
13.6 Force Majeure. If the performance of this Agreement, or any
obligation hereunder, except the making of payments hereunder, is
prevented, restricted or interfered with by reason of fire, flood,
earthquake, acts of God, explosion or other casualty of war, labor dispute,
inability to procure or obtain delivery of parts, supplies, or power,
violence, any law, order, regulation, ordinance, demand or requirement of
any governmental agency, or any other act or condition whatsoever beyond
the reasonable control of the affected party, the party so affected, upon
giving prompt notice to the other party, will be excused from such
performance to the extent of such prevention, restriction or interference.
13.7 Independent Contractor. The parties' relationship shall be solely
that of independent contractor and nothing contained in this Agreement
shall be construed to make either party an agent, partner, co-venturer,
representative or principal of the other for any purpose, and neither party
shall have any right whatsoever to incur any liability or obligation on
behalf of or binding upon the other party.
13.8 Survival. Sections 1, 2.2, 6.1, 6.2, 7, 9, 12.2 and 13 of this
Agreement shall survive the termination of this Agreement.
13.9 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of California, excluding its conflicts of law
principles. Any suit hereunder shall be brought in the federal or state
courts in Santa Clara County, California and PLATHOME submits to the
jurisdiction thereof. The
<PAGE>
parties exclude the application of the 1980 United Nations Convention on
Contracts for the International Sale of Goods if applicable.
13.10 Entire Agreement; Amendment. This Agreement, including each of the
exhibits attached hereto, which are hereby incorporated into and made a
part of this Agreement, constitute the final, complete and exclusive entire
agreement between the parties with respect to the subject matter hereof and
supersedes any previous proposals, negotiations, agreements arrangements,
or warranties, whether verbal or written, made between the parties with
respect to such subject matter. It is expressly understood and agreed that
sales conditions of the BeOS as contained in orders or any other form or
request submitted by PLATHOME to Be shall be subject to the provisions of
this Agreement, and in no event shall the terms and conditions set forth in
such order or other business form, whether it is Be's standard or not, be
applicable to the transactions between the parties under this Agreement.
This Agreement shall control over any additional or conflicting term in any
of PLATHOME's purchase orders or other business forms. This Agreement may
only be amended or modified by mutual agreement of authorized
representatives of the parties in writing.
13.11 Attorney's Fees. If any legal action is brought to construe or
enforce any provision of this Agreement, the prevailing party shall be
entitled to receive its attorneys' fees and court costs in addition to any
other relief it may receive.
In Witness Whereof, the parties have caused this Software Distribution
Agreement to be executed as of the date first written above.
Be PLATHOME
800 El Camino Real, Suite 400 Narita Building, 2-3-6 Sotokanda
Menlo Park, CA 94025 Chiyoda-ku Tokyo, Japan 101
By: /s/ Jim Cook By: /s/ Tomoyasn Suzuki
------------------------------- ---------------------------------
Name: Jim Cook Name: Tomoyasn Suzuki
----------------------------- -------------------------------
Title: VP Sales Title: Executive Vice President
---------------------------- ------------------------------
Date: 5 Nov 98 Date: 9 Nov 98
----------------------------- -------------------------------
<PAGE>
EXHIBIT A
BE INCORPORATED - SHRINKWRAP LICENSE AGREEMENT
NOTICE: READ THIS BEFORE INSTALLING THE BEOS.
BY INSTALLING THE BEOS YOU AGREE THAT YOU HAVE READ THIS LICENSE, THAT YOU ARE
BOUND BY ITS TERMS AND THAT IT IS THE ONLY AGREEMENT BETWEEN US REGARDING THE
PROGRAM AND DOCUMENTATION.
INSTALLING THE BEOS INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS.
READ ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT PRIOR TO
INSTALLING. IF YOU DO NOT ACCEPT THESE TERMS, YOU MUST RETURN THE BEOS AND ANY
UNOPENED PACKAGE (PACKET AND ALL OTHER MATERIALS) WITHIN 5 DAYS OF OBTAINING
THE BEOS, WITH YOUR RECEIPT, AND YOUR MONEY WILL BE RETURNED.
PLEASE NOTE THAT YOU MAY NOT USE, COPY, MODIFY OR TRANSFER THE PROGRAM OR
DOCUMENTATION OR ANY COPY, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT.
LICENSE. This software program and documentation are licensed, not sold, to
you. You have a non-exclusive and nontransferable right to use the enclosed
program and documentation. This program can only be used on a single computer
located in the United States and its territories or any other country to which
this software is legally exported. You may physically transfer the program from
one computer to another provided that the program is used on only one computer
at a time. This software is considered to be in use on a computer when it is
loaded into the temporary memory (i.e. RAM) or installed into the permanent
memory (e.g. hard drive) of that computer, except that a copy installed on a
network server for the sole purpose of distribution to other computers is not
"in use." You may merge it into another program for your use on a single
machine. You agree that the program and documentation belong to Be Incorporated
and its licensors. You agree to use your best efforts to prevent and protect the
contents of the program and documentation from unauthorized disclosure or use.
Be Incorporated and its licensors reserve all rights not expressly granted to
you.
LIMITATIONS ON USE. You may not rent, lease, sell or otherwise transfer or
distribute copies of the program or documentation to others. You may not modify
or translate the program or the documentation without the prior written consent
of Be Incorporated. You may not reverse assemble, reverse compile or otherwise
attempt to create the source code from the program. Licensee shall not use Be
Incorporated's name or refer to Be Incorporated directly or indirectly in any
papers, articles, advertisements, sales presentations, news releases or releases
to any third party without the prior written approval of Be Incorporated for
each such use. Licensce shall not release the results of any performance or
functional evaluation of any program to any third party without prior written
approval of Be Incorporated for each such release.
BACKUP AND TRANSFER. You may make one copy of the program for backup purposes
if Be Incorporated's copyright notice is included. You may not sublicense the
program, or assign, delegate or otherwise transfer this license or any of the
related rights or obligations for any reason. Any attempt to make any such
sublicense, assignment, delegation or other transfer by you shall be void.
COPYRIGHT. The program and related documentation are copyrighted. You may not
copy any documentation. You may not copy the program (or this license) except
to provide a backup copy and to load the program into the computer as part of
executing the program. Any and all other copies of the program made by you are
in violation of this license.
OWNERSHIP. You agree that you neither own nor hereby acquire any claim or right
of ownership to the program and documentation or to any related patents,
copyrights, trademarks or other intellectual property. You own only the
magnetic or other physical media on which the program and related documentation
are recorded or fixed. Be Incorporated and its licensors retain all right,
title and interest in and to the documentation and all copies and the program
recorded on the original media and all subsequent copies of the program at all
times, regardless of the form or media in or on which the original or other
copies may subsequently exist. This license is not a sale of the original or
any subsequent copy.
<PAGE>
TERM AND TERMINATION. This license is effective until terminated. You may
terminate this license at any time by destroying the program and documentation
and the permitted backup copy. This license automatically terminates if you fail
to comply with its terms and conditions. You agree that, upon such termination,
you will destroy (or permanently erase) all copies of the program and
documentation. You also agree that, upon termination, you will return the
original program and documentation to Be Incorporated, together with any other
material you have received from Be Incorporated in connection with the program.
LIMITED WARRANTY. Be Incorporated warrants the medial on which the program is
furnished to be free from defects in materials and workmanship under normal use
for 30 days from the date that you obtain the program. EXCEPT FOR THIS LIMITED
WARRANTY, BE INCORPORATED AND ITS LICENSORS PROVIDE THE PROGRAM AND THE
DOCUMENTATION "AS IS" WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS, IMPLIED OR
STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Some states do not allow the exclusion of implied warranties, so the above
exclusion may not apply to you. This warranty gives you specific legal rights
and you may also have other rights which vary from state to state.
The BeOS may have been delivered to you bundled with third party software
applications not owned by Be Incorporated. SUCH THIRD PARTY SOFTWARE IS
PROVIDED TO YOU "AS IS" AND WITHOUT WARRANTY OF ANY KIND BY BE INCORPORATED
EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. Your rights and warranties, if any, regarding such third party
software are governed by such third party's own end user license agreement and
not by Be Incorporated.
LIMITATION OF REMEDIES. Be Incorporated and its licensor's entire liability and
your exclusive remedy in connection with the program and the documentation shall
be that you are entitled to return the defective media containing the program
together with the documentation to the merchant. At the option of the merchant,
you may receive replacement media containing the program and documentation that
conforms with the limited warranty or a refund of the amount paid by you. IN NO
EVENT WILL BE INCORPORATED OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT DAMAGES
OR OTHER RELIEF ARISING OUT OF YOUR USE OR INABILITY TO USE THE PROGRAM OR ANY
THIRD PARTY APPLICATIONS INCLUDING, BY WAY OF ILLUSTRATION AND NOT LIMITATION,
LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY, OR ANY SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF SUCH USE OR INABILITY TO USE THE PROGRAM OR
ANY THIRD PARTY APPLICATIONS, EVEN IF BE INCORPORATED, ITS LICENSORS OR AN
AUTHORIZED BE INCORPORATED DEALER, DISTRIBUTOR OR SUPPLIER HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY.
Some states do not allow the exclusion or limitation of incidental or
consequential damages so the above limitation or exclusion may not apply to you.
This license will be governed by the laws of the State of California as applied
to transactions taking place wholly within California residents.
U.S. GOVERNMENT RIGHTS LEGEND. The program is a "commercial item," as that term
is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of "commercial computer
software" and "commercial computer software documentation," as such terms are
used in 48 C.F.R. 12.212 (SEPT 1995) and is provided to the U.S. Government only
as a commercial end item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R.
227.7202-1 through 227.7202-4 (JUNE 1995), all U.S. Government End Users
acquire the program with only those rights set forth herein.
<PAGE>
Exhibit B
Trademarks and Trade names
Be Trademarks and Trade Names:
Be Incorporated(R) (as registered in Japan)
BeOS(TM)
BeWare(TM)
GeekPort(TM)
BeDepot.com(TM)
The Be stylized logo
The BeOS stylized logo
<PAGE>
Exhibit C
[*]
[*] Certain information on this page has been omitted and filed separetely with
the Commission. Confidential Treatment has been requested with respect to
the omitted portions.
<PAGE>
EXHIBIT 23.1
Consent of PricewaterhouseCoopers LLP
Independent Accountants
We hereby consent to the use in this Registration Statement on Form S-1 of our
report dated April 2, 1999 relating to the financial statements which, includes
an explanatory paragraph regarding the ability to continue as a going concern,
and our report dated April 2, 1999 on the financial statement schedule of Be
Incorporated and its subsidiaries and of our report dated April 9, 1999
relating to the financial statements of StarCode Software, Inc., which appear
in such Registration Statement. We also consent to the references to us under
the headings, "Experts" and "Selected Financial Data" in such Registration
Statement.
/s/ PricewaterhouseCoopers LLP
San Jose, California
July 7, 1999
1
