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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 September 30, 1999
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission File Number 0-28436
OPEN MARKET, INC.
(Exact name of registrant as specified in its charter)
Delaware 04-3214536
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
One Wayside Road
Burlington, Massachusetts 01803
(Address of principal executive offices) (Zip Code)
(781) 359-3000
(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 [ ]
As of November 11, 1999, there were 43,859,429 shares of the Registrant's
Common Stock outstanding.
1
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OPEN MARKET, INC.
TABLE OF CONTENTS
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Page
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PART I--FINANCIAL INFORMATION
ITEM 1. Financial Statements
Consolidated Balance Sheets as of September 30, 1999 and December 31, 1998............................ 3
Consolidated Statements of Operations for the three and nine months ended September 30, 1999
and 1998.............................................................................................. 4
Consolidated Statements of Cash Flows for the nine months ended September 30, 1999 and 1998............ 5
Notes to Consolidated Financial Statements............................................................. 6
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of Operations............. 13
ITEM 3. Quantitative and Qualitative Disclosures about Market Risk........................................ 28
PART II--OTHER INFORMATION
ITEM 1. Exhibits and Reports on Form 8-K.................................................................. 29
SIGNATURES................................................................................................ 30
EXHIBIT INDEX............................................................................................. 31
</TABLE>
2
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PART I--FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
OPEN MARKET, INC.
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
-------------- -------------
1999 1998
-------------- -------------
(UNAUDITED)
ASSETS
<S> <C> <C>
Current assets:
Cash and cash equivalents...................................................................... $ 19,156 $ 19,921
Marketable securities.......................................................................... 13,903 14,958
Accounts receivable, net of allowances of $3,031 and $2,523, respectively...................... 25,246 28,250
Prepaid expenses and other current assets...................................................... 4,954 1,892
--------- ---------
Total current assets........................................................................ 63,259 65,021
--------- ---------
Property, plant and equipment, at cost:
Computers and office equipment................................................................. 15,568 14,743
Leasehold improvements......................................................................... 5,412 5,421
Land & building................................................................................ 4,200 4,200
Furniture & fixtures........................................................................... 2,140 2,157
--------- ---------
Total property and equipment................................................................ 27,320 26,521
Less: Accumulated depreciation and amortization................................................. 14,260 11,093
--------- ---------
Net property and equipment.................................................................. 13,060 15,428
Long-term marketable securities................................................................. -- 1,510
Intangible assets, net.......................................................................... 9,421 11,627
Other assets.................................................................................... 1,372 1,372
--------- ---------
$ 87,112 $ 94,958
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current maturities of long-term obligations.................................................... $ 60 $ 88
Line of credit................................................................................. 10,350 11,000
Note payable................................................................................... -- 5,000
Accounts payable............................................................................... 3,316 2,848
Accrued expenses............................................................................... 10,406 13,692
Deferred revenues.............................................................................. 5,925 4,548
--------- ---------
Total current liabilities................................................................... 30,057 37,176
--------- ---------
Long-term obligations, net of current maturities................................................ 2,720 2,789
Stockholders' equity:
Preferred stock, $.10 par value--
Authorized--2,000,000 shares; Issued and outstanding none................................... -- --
Common stock, $.001 par value--
Authorized--100,000,000 shares; Issued and outstanding - 36,438,000 shares
and 35,291,000 shares at September 30, 1999 and December 31, 1998,
respectively................................................................................ 36 35
Additional paid-in capital..................................................................... 191,665 186,074
Accumulated deficit............................................................................ (137,366) (131,116)
--------- ---------
Total stockholders' equity.................................................................. 54,335 54,993
--------- ---------
$ 87,112 $ 94,958
========= =========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
3
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OPEN MARKET, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
------------------------- -------------------------
SEPTEMBER 30, SEPTEMBER 30,
------------------------- -------------------------
1999 1998 1999 1998
----------- ------------ ----------- ------------
<S> <C> <C> <C> <C>
REVENUES:
Product revenues............................................... $11,078 $ 8,693 $33,943 $ 32,123
Service revenues............................................... 6,936 5,670 18,217 13,967
------- ------- ------- --------
Total revenues............................................... 18,014 14,363 52,160 46,090
------- ------- ------- --------
COST OF REVENUES:
Product revenues............................................... 932 702 2,411 2,044
Service revenues............................................... 4,085 3,850 12,386 10,259
------- ------- ------- --------
Total cost of revenues....................................... 5,017 4,552 14,797 12,303
------- ------- ------- --------
Gross profit................................................. 12,997 9,811 37,363 33,787
------- ------- ------- --------
OPERATING EXPENSES:
Selling and marketing.......................................... 7,061 8,097 22,367 23,980
Research and development....................................... 4,510 5,350 14,018 18,693
General and administrative..................................... 1,822 2,492 5,049 7,422
Amortization of intangibles.................................... 765 720 2,205 1,740
Acquired in-process research and development................... -- -- -- 5,700
------- ------- ------- --------
Total operating expenses..................................... 14,158 16,659 43,639 57,535
------- ------- ------- --------
Loss from operations......................................... (1,161) (6,848) (6,276) (23,748)
OTHER INCOME (EXPENSE):
Interest income................................................... 275 376 832 985
Interest expense.................................................. (155) (312) (465) (849)
Other expense..................................................... 26 19 (126) (52)
------- ------- ------- --------
Loss before provision for incomes taxes........................... (1,015) (6,765) (6,035) (23,664)
------- ------- ------- --------
Provision for income taxes........................................ 71 121 216 186
------- ------- ------- --------
NET LOSS.......................................................... $(1,086) $(6,886) $(6,251) $(23,850)
======= ======= ======= ========
NET LOSS PER SHARE BASIC AND DILUTED (Note 2(e)).................. $(0.03) $(0.20) $(0.17) $(0.72)
======= ======= ======= ========
WEIGHTED AVERAGE NUMBER OF COMMON AND
COMMON EQUIVALENT SHARES OUTSTANDING--
BASIC AND DILUTED (Note 2(e))................................... 36,225 34,323 35,833 32,945
======= ======= ======= ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
4
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OPEN MARKET, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
---------------------------
SEPTEMBER 30,
---------------------------
1999 1998
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<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss.............................................................................. $(6,251) $(23,850)
Adjustments to reconcile net loss to net cash used in operating activities:
Depreciation and amortization........................................................ 3,167 3,672
Amortization of intangible assets.................................................... 2,205 1,740
Charge associated with acquired in-process research & development.................... -- 5,700
Deferred compensation................................................................ -- 105
Changes in assets and liabilities:
Accounts receivable.................................................................. 3,004 (5,784)
Prepaid expenses and other current assets............................................ (1,905) (604)
Accounts payable..................................................................... 468 274
Accrued expenses..................................................................... (3,286) (2,378)
Deferred revenues.................................................................... 1,378 253
------- --------
Net cash used in operating activities.............................................. (1,220) (20,872)
------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of property, plant and equipment............................................ (799) (5,059)
Payment from founder on loan.......................................................... -- 993
Sales (purchases) of marketable securities, net....................................... 2,568 (15,646)
Cash used for merger related costs.................................................... (1,157) --
Increase in other assets.............................................................. -- (101)
Net cash used in the purchase of ICentral............................................. -- (1,420)
------- --------
Net cash provided by (used in) investing activities................................ 612 (21,233)
------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
(Payments) proceeds from line of credit............................................... (650) 5,331
Payments on note payable.............................................................. (5,000) (1,818)
Proceeds from the factoring of accounts receivable.................................... -- 3,128
(Payments) proceeds on long-term obligations.......................................... (98) 2,761
Proceeds from issuance of common stock................................................ 5,591 27,336
------- --------
Net cash (used in) provided by financing activities................................ (157) 36,738
------- --------
Net decrease in cash and cash equivalents.............................................. (765) (5,367)
------- --------
Cash and cash equivalents, beginning of period......................................... 19,921 19,666
------- --------
Cash and cash equivalents, end of period............................................... $19,156 $ 14,299
======= ========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Interest paid during the period....................................................... $ 155 $ 1,212
======= ========
Taxes paid during the period.......................................................... $ 12 $ 48
======= ========
In connection with the acquisition of ICentral, the following non-cash transaction
occurred:
Fair value of assets acquired......................................................... $ -- $ 12,086
Liabilities assumed................................................................... -- (666)
Issuance of common stock.............................................................. -- (10,000)
------- --------
Cash paid for acquisition and acquisition costs....................................... $ -- $ 1,420
======= ========
In connection with the acquisition of Folio, the following non-cash transaction
occurred:
Payment of note payable through issuance of common stock.............................. $ -- $ 3,182
======= ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
5
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OPEN MARKET, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(ALL AMOUNTS IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
(UNAUDITED)
1. BASIS OF PRESENTATION
The consolidated financial statements of Open Market, Inc. (the Company)
presented herein have been prepared pursuant to the rules of the Securities and
Exchange Commission for quarterly reports on Form 10-Q and do not include all of
the information and note disclosures required by generally accepted accounting
principles. These statements should be read in conjunction with the consolidated
financial statements and notes thereto for the year ended December 31, 1998,
included in the Company's Annual Report on Form 10-K/A filed with the Securities
and Exchange Commission on April 2, 1999.
The consolidated financial statements and notes herein are unaudited but,
in the opinion of management, include all adjustments (consisting of normal,
recurring adjustments) necessary to present fairly the consolidated financial
position, results of operations and cash flows of the Company and its
subsidiaries.
The results of operations for the interim periods shown herein are not
necessarily indicative of the results to be expected for any future interim
period or for the entire year.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The accompanying consolidated financial statements reflect the application
of certain accounting policies described in this and other notes to these
consolidated financial statements.
(a) Principles of Consolidation
The accompanying consolidated financial statements reflect the accounts
of the Company and its wholly- owned subsidiaries. All material intercompany
accounts and transactions have been eliminated in consolidation.
(b) Revenue Recognition
The Company applies Statement of Position No. 97-2, Software Revenue
Recognition. The Company generates revenue from licensing the rights to use its
software products to end users and sublicense fees from resellers. The Company
also generates service revenues from the sale of postcontract customer support
and the sale of certain consulting and development services.
Revenues from software license agreements are recognized upon delivery of the
software if there is evidence of an agreement, there are no significant post-
delivery obligations, and the payment is fixed or determinable and collection
is probable. If an acceptance period is required, revenues are recognized upon
customer acceptance. The Company enters into reseller arrangements for certain
products that typically provide for sublicense fees payable to the Company based
on a percentage of the Company's list price. Royalty and sublicense revenues
from the Company's reseller arrangements are recognized when earned, either on a
per-unit basis as reported to the Company by its licensees, or, with regards to
guaranteed minimums, upon shipment of the master copy of all software to which
the guaranteed minimum sublicense fees relate, if there are no significant post-
delivery obligations. Revenues for post-contract customer support are recognized
ratably over the term of the support period, which is typically one year.
Service revenues, which include education, implementation and consulting
services, are recognized in the period services are provided, if customer
acceptance is not required, there is evidence of an agreement, the revenues
are fixed and determinable and collectibility is probable.
Cost of product revenues consists of costs to distribute the product,
including the cost of the media on which it is delivered and royalty payments to
third-party vendors. Cost of service revenues consists primarily of consulting
and support personnel salaries and related costs.
6
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OPEN MARKET, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Deferred revenues represent cash received from customers for products and
services in advance of revenue recognition.
(c) Cash, Cash Equivalents and Marketable Securities
The Company accounts for investments under Statement of Financial Accounting
Standards (SFAS) No. 115, Accounting for Certain Investments in Debt and Equity
Securities. Under SFAS No. 115, investments for which the Company has the
positive intent and ability to hold to maturity, consisting of cash equivalents
and marketable securities, are reported at amortized cost, which approximates
fair market value. Cash equivalents are highly liquid investments with
maturities of less than three months at the time of acquisition. Marketable
securities consist of investment grade commercial paper, corporate notes, and
obligations of certain municipalities as of September 30, 1999. These
instruments typically have maturities of greater than three months but less than
one year. The average maturity of the Company's marketable securities is
approximately ten months.
(d) Translation of Foreign Currencies
The accounts of the Company's foreign subsidiaries are translated in
accordance with SFAS No. 52, Foreign Currency Translation. In translating the
accounts of the foreign subsidiaries into U.S. dollars, assets and liabilities
are translated at the rate of exchange in effect at period-end, while
stockholders' equity is translated at historical rates. Revenue and expense
accounts are translated using the weighted average rate in effect during the
year. Foreign currency translation and transaction gains or losses for the
foreign subsidiaries are included in the accompanying consolidated statements of
operations since the functional currency of these subsidiaries is the U.S.
dollar. The Company had $438 and $988 of accounts receivable denominated in
foreign currencies as of September 30, 1999 and December 31, 1998, respectively.
The Company marks these receivables to market and records a gain or loss, which
is a component of other income/expense in the statement of operations. The
Company has not incurred a significant loss to date.
(e) Net Loss Per Share
The Company applies SFAS No. 128, Earnings Per Share. SFAS No. 128
establishes standards for computing and presenting earnings per share and
applies to entities with publicly held common stock or potential common stock.
Basic net loss per share is determined by dividing net loss per share by the
weighted average common shares outstanding during the period. Diluted net loss
per share for the three months and nine months ended September 30, 1999 and 1998
are the same as basic net loss per share, as the inclusion of potential common
stock would be antidilutive.
For the nine months ended September 30, 1999 and 1998, 6,207,000 and
7,318,000, respectively, of anti-dilutive securities were not included in the
calculation of basic and diluted net loss per share.
(f) Comprehensive Income
The Company applies SFAS No. 130, Reporting Comprehensive Income. SFAS No.
130 which establishes standards for reporting and display of comprehensive
income and its components in financial statements. Comprehensive income includes
all changes in equity during a period except those resulting from investments by
owners and distribution to owners. The comprehensive net loss is the same as net
loss for all periods presented.
7
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OPEN MARKET, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(g) Disclosures about Segments of an Enterprise and Significant Customers
The Company adopted SFAS No. 131, Disclosures about Segments of an Enterprise
and Related Information in the fiscal year ended December 31, 1998. SFAS No. 131
establishes standards for reporting information regarding operating segments in
annual financial statements and requires selected information for those segments
to be presented in interim financial reports issued to stockholders. SFAS No.
131 also establishes standards for related disclosures about products and
services and geographic areas. Operating segments are identified as components
of an enterprise about which separate discrete financial information is
available for evaluation by the chief operating decision maker, or decision
making group, in making decisions how to allocate resources and assess
performance. The Company's chief decision-maker, as defined under SFAS No. 131,
is a combination of the Chief Executive Officer and Chief Financial Officer.
As a result of the NextPage License and Distribution Agreement (see Note 6)
the Company now has two reportable operating segments: (1) Commerce Products,
including the licensing of Transact, Live Commerce and Shopsite products and (2)
Publishing Products which include the Folio publishing product suite. The
Company evaluates performance of the operating segments based on gross profit.
<TABLE>
<CAPTION>
THREE MONTHS Ended NINE MONTHS ENDED
---------------------------- --------------------------
SEPTEMBER 30 SEPTEMBER 30
---------------------------- --------------------------
1999 1998 1999 1998
-------------- ------------ ------------ ------------
<S> <C> <C> <C> <C>
Commerce Product Revenues.................................. $10,024 $ 4,729 $28,391 $16,388
Commerce Service Revenues.................................. 6,602 4,725 16,496 10,959
------- ------- ------- -------
Subtotal Commerce Revenues............................... 16,626 9,454 44,887 27,347
------- ------- ------- -------
Publishing Product Revenues................................ 1,054 3,964 5,552 15,735
Publishing Service Revenues................................ 334 945 1,721 3,008
------- ------- ------- -------
Subtotal Publishing Revenues............................. 1,388 4,909 7,273 18,743
------- ------- ------- -------
Total Revenues........................................ 18,014 14,363 52,160 46,090
======= ======= ======= =======
Commerce Cost of Product................................... 932 576 2,252 1,612
Commerce Cost of Service................................... 4,085 3,369 10,953 8,378
------- ------- ------- -------
Subtotal Cost of Commerce Revenues....................... 5,017 3,945 13,205 9,990
------- ------- ------- -------
Publishing Cost of Product................................. - 126 159 432
Publishing Cost of Service................................. - 481 1,433 1,881
------- ------- ------- -------
Subtotal Cost of Publishing Revenues..................... - 607 1,592 2,313
------- ------- ------- -------
Total Cost of Revenues................................ 5,017 4,552 14,797 12,303
------- ------- ------- -------
Gross Profit--Commerce..................................... 11,610 5,509 31,682 17,356
Gross Profit--Publishing................................... 1,387 4,302 5,681 16,431
------- ------- ------- -------
Total Gross Profit.................................... 12,997 9,811 37,363 33,787
======= ======= ======= =======
</TABLE>
8
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OPEN MARKET, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
The following table presents geographical revenues from sources in total and
as a percent of total revenues for the three and nine months ended September
30, 1999 and 1998:
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
---------------------------------------- ----------------------------------------
SEPTEMBER 30, 1999 SEPTEMBER 30, 1998 SEPTEMBER 30, 1999 SEPTEMBER 30, 1998
------------------- ------------------- ------------------- -------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
North America.......... $12,472 70% $ 8,863 62% $36,757 70% $32,269 69%
Europe/Africa.......... 4,224 23% 4,088 28% 12,120 23% 9,497 21%
Asia/Pacific Rim....... 1,246 7% 1,107 8% 2,875 6% 3,621 8%
Other.................. 72 0% 305 2% 408 1% 703 2%
------- --- ------- --- ------- --- ------- ---
$18,014 100% $14,363 100% $52,160 100% $46,090 100%
======= --- ======= --- ======= --- ======= ---
</TABLE>
3. RESTRUCTURING
In the fourth quarter of 1998, the Company implemented a restructuring plan
to better align its operating costs with its anticipated future revenue stream.
The major component of the restructuring charge relates to the elimination of
approximately 67 employees across the following functions: Engineering (27),
Marketing (17), General and Administrative (22) and Services (1). In addition,
10 employees moved from Engineering to Consulting. Other components related to
the exiting of certain contractual arrangements for porting and product
integration that resulted from a change in product strategy. Other charges
included the write-off of unutilized software, originally intended for use by
the sales force but not implemented due to the reduction in marketing personnel.
The restructuring charge was comprised of the following:
<TABLE>
<S> <C>
Employee severance, benefits and related costs................. $1,260
Write-off of assets............................................ 294
Termination costs of certain contractual arrangements.......... 488
------
Total.......................................................... $2,042
======
</TABLE>
At September 30, 1999, approximately $448 of accrued restructuring charges
remained, which is comprised of approximately $70 of severance-related costs and
$377 of contractual costs. The total cash impact of the restructuring amounted
to approximately $1,748. The total cash paid as of September 30, 1999 was
approximately $1,268 and the remaining amount is expected to be paid during the
fourth quarter of 1999.
4. ACQUISITIONS
ICentral Incorporated
On April 30, 1998, the Company acquired all of the outstanding shares of
capital stock of ICentral, Incorporated (ICentral) based in Provo, Utah.
ICentral specializes in Internet store-building products geared to small and
medium-sized businesses. As payment of the purchase price, the Company (i)
issued an aggregate of 480,140 shares of common stock of the Company and (ii)
made a cash payment of $720 to the former stockholders of ICentral. The value of
the shares of the Company's common stock issued in connection with the
acquisition was approximately $10,000 based on a weighted average market price,
as defined. In addition, in connection with this acquisition, the Company
entered into employment agreements with certain key employees of ICentral under
which the Company agreed to pay bonuses in the form of the Company's common
stock in an aggregate amount of $1,000, depending on certain future events, as
defined. The employees earned $570 under the employment agreements, which was
paid through the issuance of 42,223 shares of common stock under the Company's
1994 Stock Incentive Plan. For financial statement purposes, this acquisition
was accounted for as a purchase, and accordingly, the results of operations of
ICentral subsequent to April 30, 1998 are included in the Company's consolidated
statements of operations.
9
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OPEN MARKET, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
The aggregate purchase price of $12,086 consisted of the following:
<TABLE>
<CAPTION>
DESCRIPTION AMOUNT
- ----------- ------
<S> <C>
Common stock.............................................................. $10,000
Cash...................................................................... 720
Assumed liabilities....................................................... 666
Acquisition costs......................................................... 700
-------
Total purchase price:.................................................. $12,086
=======
</TABLE>
The purchase price was allocated based upon the fair value of the tangible and
intangible assets acquired. These allocations represent the fair values
determined by an appraisal. The appraisal incorporated proven valuation
procedures and techniques in determining the fair value of each intangible
asset. The purchase price has preliminarily been allocated as follows:
<TABLE>
<CAPTION>
DESCRIPTION AMOUNT
- ----------- ------
<S> <C>
Current assets............................................................ $ 86
Other acquired intangible assets.......................................... 6,300
In-process research & development......................................... 5,700
-------
Total assets acquired:................................................. $12,086
=======
</TABLE>
As of the acquisition date of ICentral in April 1998, ICentral had initiated a
research and development effort related to the third major revision of its
flagship ShopSite product suite, an Internet commerce product suite that allows
small to medium-sized web merchants to transact business on the Internet. The
elements of the product suite are as follows: (1) ShopSite Express, a tool that
allows web designers to add a shopping system to any existing web site, (2)
ShopSite Manager, which offers the shopping functionality of ShopSite Express
combined with an automated commerce site management system, and (3) ShopSite
Pro, which combines the features of ShopSite Manager with an additional set of
advanced commerce tools including real-time payment processing. The in-process
technology included significant new modifications of the features and
functionality of the current suite of products, such as the addition of
Cybercash as a payment option, quantity discount interface capability to allow
customers to purchase at quantity discounts, tax modifications to allow the
merchant to decide whether to calculate tax before or after shipping is
calculated, improved shipping configuration of United Parcel Service shipping
zones, and a mailing list generator. It is expected that these modifications
will further enhance the product's ease of use in the marketplace. As of the
acquisition date, the in-process project was approximately 60% complete and it
was estimated that the in-process technology would have a seven-year life. The
first integrated product was introduced during the second quarter of 1999.
The value of the acquired in-process technology was computed using a
discounted cash flow analysis on the anticipated income stream of the estimated
future product sales of the developed technology. This was determined by
estimating the costs of developing the purchased in-process development project
into commercially viable products, estimating the resulting net cash flows from
the project, adjusting the cash flow for the percentage of completion and the
core technology component of the required technology and discounting the
adjusted net cash flows to their present value. The estimates used to value the
future revenue benefits of the in-process research and development were based on
elements of relevant market sizes and growth/risk factors, expected trends in
technology, and the nature and expected timing of new product introductions by
the Company and its competitors.
10
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OPEN MARKET, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
In the valuation analysis, aggregate revenues for ICentral products were
estimated to be approximately $3,300 for fiscal 1998 and to increase to
approximately $62,500 in 2007. Revenues for the in-process technology were
estimated to be approximately $2,300 for fiscal 1998 and to approximately
$28,700 in fiscal 2002, representing a compound annual growth rate of
approximately 65%. The estimated revenues for the in-process technologies were
expected to peak within four years of the acquisition date. The estimated
overall life of the acquired developed technologies of ICentral is five years.
Operating expenses used in the valuation of ICentral included selling,
general and administrative, and research and development expenses. Operating
expenses were estimated based on historical expense levels of similar companies
operating in similar industries. Selling, and general and administrative
expenses expressed as a percentage of revenue for the in-process technologies
were estimated to be 30% throughout the estimation period. Research and
development expenses, also expressed as a percentage of estimated revenue, were
estimated to be approximately 32% and 13% in 1998 and 1999, respectively, and to
stabilize at 20% for the remainder of the estimation period. Cost of sales was
estimated based on an analysis of historical information for similar companies
operating in similar industries. Cost of sales for both the developed and in-
process technologies was estimated to be 19% throughout the estimation period.
The discount rate selected for both the developed and in-process technologies
was 22% and was estimated by calculating a Weighted Average Cost of Capital
(WACC) based on publicly traded guideline companies. The WACC represents the
blended, after-tax costs of debt and equity. The cost of equity was estimated
using the Capital Asset Pricing Model (CAPM) and by reviewing venture capital
rates of return.
The valuation analysis was performed in accordance with the provisions of
Accounting Principles Board (APB) Opinions Nos. 16 and 17, wherein all
identifiable assets and intangible assets acquired were identified and analyzed
to determine their fair market values. In addition, to identify the in-process
research and development and determining if there were any alternative future
uses for these projects, these projects were evaluated in the context of
Interpretation 4 of Financial Accounting Standards Board Statement No. 2 (SFAS
2) and SFAS No. 86: Accounting For Software Costs. Such evaluation consisted of
a specific review of the efforts and uniqueness of the developments of these
projects, and a determination of whether technological feasibility had been
achieved. Accordingly, the Company believed that the foregoing assumptions used
in the ICentral acquired in-process research and development analysis were
reasonable at the time of acquisition. However, no assurance can be given that
the underlying assumptions used to estimate expected sales revenues, development
costs, or profitability, or the events associated with such projects will
transpire, or have transpired, as estimated. The Company recorded approximately
$525 of amortization expense relating to these intangible assets during 1998 and
$945 for the nine months ending September 30, 1999. The results prior to the
ICentral Acquisition were not material to the Company. Accordingly the proforma
results for the three and nine months ended September 30, 1998 were not
presented.
5. RELATED PARTY TRANSACTIONS
During the three and nine month periods ended September 30, 1999, the Company
recorded revenues of $432 related to the sale of FutureTense, Inc.(R)
("FutureTense") products and services as part of a reseller agreement. The
Company believes that the terms of these transactions are on terms no less
favorable to the Company than could be obtained from unaffiliated third parties
(See Note 7).
6. EXCLUSIVE DISTRIBUTION AGREEMENT
On June 9, 1999, the Company announced the formation of a strategic
partnership with ABSB, L.C., now known as NextPage. Under the terms of the
agreement, as amended on September 30, 1999, in exchange for exclusive worldwide
marketing and distribution rights for Folio publishing products, NextPage will
pay Open Market a minimum of $14,000 in guaranteed royalties over a three-year
period commencing July 1, 1999. At the end of the three-year period,
11
<PAGE>
OPEN MARKET, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
NextPage has an option to obtain all rights, title and interests to the Folio
products for a purchase price equal to such products' fair-market value. In
addition, Open Market will receive a minimum of $3,000 in software license fees
from NextPage in exchange for NextPage's non-exclusive worldwide rights to
market and distribute Open Market's Internet commerce software products to the
commercial publishing industry. In connection with this distribution agreement,
the Company recorded $1,167 in publishing product revenue during the three
months ended September 30, 1999.
7. SUBSEQUENT EVENT
On October 18, 1999, the Company announced the completion of its merger with
FutureTense, a leading provider of Internet content management and delivery
software. Under the terms of the agreement, Open Market issued 7,346,210 shares
of its common stock to the holders of outstanding FutureTense stock. In
addition, Open Market assumed employee options and a warrant to acquire shares
of FutureTense stock that will convert into options to acquire 1,124,628 shares
of Open Market common stock. A substantial portion of these options were
exercisable upon the closing of the transaction. As of October 15, 1999, the
common stock issued by Open Market had an aggregate value of $96,419 and Open
Market issued options to acquire Open Market stock valued at $14,760. The
Company intends to account for this transaction as a pooling of interests. At
September 30, 1999, the Company has recorded $1,157 in other assets consisting
of legal, accounting and other fees incurred in connection with the merger.
These costs will be expensed in the fourth quarter, upon closing of the
transaction. Additional details are published in the Company's Registration
Statement on Form S-4, as amended (File No. 333-84801) filed with the Securities
and Exchange Commission.
12
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
(ALL AMOUNTS IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
RESULTS OF OPERATIONS
Overview
Open Market develops, markets, licenses and supports enterprise-class, packaged
application software products and professional services that allow its customers
to engage in business-to-business and business-to-consumer Internet commerce and
information commerce. Open Market's Internet commerce software includes a wide
spectrum of functionality required to effectively conduct business on the
Internet, allowing companies to attract customers to their Web site, engage
customers in acting upon a commercial offer, complete a secure transaction and
service customers once a transaction has been completed.
This section of the Quarterly Report may include historical information and
certain forward-looking statements. Please review below the information
contained under the heading "Certain Factors That May Affect Future Operating
Results" that addresses certain risks and uncertainties that could cause the
Company's future operating results to differ from those indicated by any forward
looking statements made by the Company or others. The Company recommends that
the business and historical discussions put forth in this section be read
together with the discussion of such risks and uncertainties. In addition, the
following discussion should be read in conjunction with the consolidated
financial statements and the notes thereto, and the information included
elsewhere herein.
On October 18, 1999, the Company announced the completion of its merger with
FutureTense, a leading provider of Internet content management and delivery
software. Under the terms of the agreement, Open Market issued 7,346,210 shares
of its common stock to the holders of outstanding FutureTense stock. In
addition, Open Market assumed employee options and a warrant to acquire
FutureTense stock that will convert into options to acquire 1,124,628 shares of
Open Market common stock. A substantial portion of these options are exercisable
upon the closing of the transaction. As of October 15, 1999, the common stock
issued by Open Market had an aggregate value of $96,419 and Open Market issued
options to acquire Open Market common stock valued at $14,760. The company
intends to account for this transaction as a pooling of interests. At September
30, 1999, the Company has recorded $1,157 in other assets consisting of legal,
accounting and other fees incurred in connection with the merger. These costs
will be expensed in the fourth quarter, upon closing of the transaction.
Additional details are published in the Company's Registration Statement on Form
S-4, as amended (File No. 333-84801) filed with the Securities and Exchange
Commission.
REVENUES
The following table summarizes product revenues by segment:
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------
Three months ended Nine months ended
September 30, % change from September 30, % change from
------------------------ --------------------------
1999 1998 prior year 1999 1998 prior year
------------------------ --------------------------
<S> <C> <C> <C> <C> <C> <C>
Commerce product revenue 10,024 4,729 112% 28,391 16,388 73%
Publishing product revenue 1,054 3,964 (73%) 5,552 15,735 (65%)
------------------------ --------------------------
Total product revenues 11,078 8,693 27% 33,943 32,123 6%
------------------------------------------------------------------------------------------------------------------
</TABLE>
Total product revenues increased approximately 27% to $11,078, or 62% of total
revenues, for the three months ended September 30, 1999, compared to $8,693, or
61% of total revenues, for the same period of the prior year. Product revenues
include: (1) commerce product revenues, which include the licensing of Transact,
the Company's flagship product for Internet commerce, LiveCommerce, and ShopSite
products, and (2) publishing product revenues, which include royalties from
NextPage, Inc. (formerly ABSB) pursuant to of the Master Distribution
13
<PAGE>
Agreement for the Folio publishing product suite that was consummated during the
second quarter of 1999.
The increase in product revenues was attributed primarily to growth in the
Company's core Internet commerce products segment. In the three months ended
September 30, 1999, Internet commerce product revenues grew to $10,024, or
approximately 112% over the comparable prior year period. The Company
attributed commerce product revenue growth to new customers as well as follow-on
sales to its installed base of customers. In addition, the Company's average
system price increased as a result of a new modular system format and pricing
schedule that was introduced during the first quarter of 1999. The modular
system format allows new customers to more easily tailor an individual commerce
system to meet their specific needs and allows existing installed base customers
the flexibility to change their systems with new and different products.
Management believes that follow-on sales to its installed base of customers are
integral to its strategy of building strong and lasting customer relationships.
Total product revenues increased 6% to $33,943, or 65% of total revenues, for
the nine months ended September 30, 1999, from to $32,123, or 70% of total
revenues, for the comparable prior year period. The Company attributed the
increase primarily to demand for its commerce products, which increased
approximately 73% from the nine months ended September 30, 1998.
Management expects that revenues from the Folio publishing products segment,
which declined approximately 73% and 65%, respectively, from the three and nine
months ended September 30, 1998, will remain flat in future quarters in
accordance with the Master Distribution Agreement with NextPage pursuant to
which the Company will receive a flat quarterly product royalty fee of
approximately $1,167 for the duration of the three-year agreement. Prior to the
NextPage agreement, the Company recorded license revenue from end-users and
resellers. At the end of the three-year period, NextPage has an option to
obtain all rights, title and interests to the Folio products for a purchase
price equal to such products fair-market value.
The following table summarizes service revenues by segment:
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------------
Three months ended Nine months ended
September 30, % change from September 30, % change from
------------------------ --------------------------
1999 1998 prior year 1999 1998 prior year
------------------------ --------------------------
<S> <C> <C> <C> <C> <C> <C>
Commerce service revenue 6,602 4,725 40% 16,496 10,959 51%
Publishing service revenue 334 945 (65%) 1,721 3,008 (43%)
------------------------ --------------------------
Total service revenues 6,936 5,670 22% 18,217 13,967 30%
---------------------------------------------------------------------------------------------------------------------
</TABLE>
Service revenues include revenues related to maintenance and support and
professional services offered by the Company. Service revenues increased
approximately 22% to $6,936, or 38% of total revenues, for the three months
ended September 30, 1999, from $5,670, or 39% of total revenues, for the three
months ended September 30, 1998. Generally, customers purchase maintenance and
support and professional services from the Company upon purchase of the
Company's products. In addition, recurring quarterly revenues are derived from
the ratable recognition of maintenance and support services as well as
subsequent purchases of professional services from the Company's existing
installed base of customers. Accordingly, the Company expects service revenues
to grow in relative proportion to growth in new product business.
Service revenues increased approximately 30% to $18,217, or 35% of total
revenues, for the nine months ended September 30, 1999, from $13,967, or 30% of
total revenues, for the nine months ended September 30, 1998. The growth in
service revenues was attributed primarily to the commerce segment, which grew
40% and 51%, respectively, during the three and nine months ended September 30,
1999 from the comparable prior year period, primarily as a result of growth in
the Company's commerce product revenues.
The Company's publishing service revenue declined approximately 65% and 43%,
respectively, for the three and nine months ended September 30, 1999, from the
comparable prior year periods. The decrease was attributed to the Master
Distribution Agreement with NextPage and the related decrease in publishing
product revenues for the three and nine month periods ended September 30, 1999.
Over the three-year duration of this agreement, the Company does not expect to
record any service revenues related to its publishing segment.
14
<PAGE>
COST OF REVENUES
The following table summarizes cost of revenues by segment:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Three months ended Nine months ended
September 30, % change from September 30, % change from
-------------------------- ----------------------------
1999 1998 prior year 1999 1998 prior year
-------------------------- ----------------------------
<S> <C> <C> <C> <C> <C> <C>
Commerce cost of product 932 576 62% 2,252 1,612 40%
Publishing cost of product - 126 (100%) 159 432 (63%)
Total cost of product 932 702 33% 2,411 2,044 18%
Commerce cost of service 4,085 3,369 21% 10,953 8,378 31%
Publishing cost of service - 481 (100%) 1,433 1,881 (24%)
-------------------------- ----------------------------
Total cost of service 4,085 3,850 6% 12,386 10,259 21%
Total cost of revenues 5,017 4,552 10% 14,797 12,303 20%
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
Cost of product revenues for the three and nine months ended September 30, 1999
increased approximately 33% and 18%, respectively, to $932 and $2,411 from $702
and $2,044 in the comparable prior year periods. The increase was attributed
primarily to growth in product revenues and increased costs for third party
licensing royalties related to the Company's Internet commerce products. Cost
of product revenues includes the costs to distribute products, costs of media on
which products are delivered, royalties for third-party technology that is
embedded into certain products of the Company, and royalties for the resale of
third-party software products. For the three and nine months ended September
30, 1999, cost of product revenues was approximately 8% and 7%, respectively, of
total product revenues. Management believes that these costs as a percentage of
product revenues will remain in the range of 8% to 10% for the foreseeable
future as the Company incorporates more third-party technology into its products
and continues to resell third-party software products with its Internet commerce
solutions.
Cost of service revenues consists primarily of personnel and related costs
incurred in providing development, consulting, and other technical services to
customers. Cost of service revenues for the three and nine months ended
September 30, 1999 increased approximately 6% and 21%, respectively, to $4,085
and $12,386 from $3,850 and $10,259 in the comparable prior year periods. The
increase was attributed to increased costs in the commerce segment as a result
of growth in commerce service revenues during the period. The increase in
commerce cost of service was attributed primarily to higher costs related to the
employment of outside consultants and higher recruiting costs related to the
hiring of new employees. Management believes that these costs will increase in
proportion to growth in service revenues, particularly anticipated growth in the
Company's commerce consulting business.
Publishing costs of product and service were eliminated in the three months
ended September 30, 1999 as a result of the Master Distribution Agreement with
NextPage. Accordingly, over the three-year duration of this agreement, the
Company does not expect to incur any costs of product or service revenue related
to its publishing segment.
GROSS MARGIN
Product revenue gross margin was approximately 92% and 93%, respectively, for
the three and nine months ended September 30, 1999, as compared to approximately
90% and 93%, respectively, for the three and nine months ended September 30,
1998. Management expects that product revenue gross margin will fluctuate based
on the amount of third party technology that the Company uses and resells to its
customers with its Internet commerce solutions. Additionally, management
expects that product revenue gross margin will remain in the range of 90% to 92%
for the foreseeable future.
15
<PAGE>
Service revenue gross margin increased to approximately 41% and 32% in the three
and nine months ended September 30, 1999, respectively, from approximately 32%
and 27% in the comparable prior year periods. The increase was attributed
primarily to higher resource utilization rates. Management expects that the
service gross margin may fluctuate in subsequent quarters depending upon such
factors as resource utilization rates and growth in the consulting business.
OPERATING EXPENSES
Overall, management attributed lower operating expenses to general improvement
in the Company's cost structure that resulted from lower employee headcount and
improved cost controls across all internal organizations. The Company continued
to experience cost efficiencies as a result of the restructuring plan
implemented in the fourth quarter of 1998. In addition, the Company reduced its
workforce by approximately 21% as a result of its Master Distribution Agreement
with NextPage in July 1999.
Selling and marketing expenses consisted primarily of the cost of sales and
marketing personnel and consultants, as well as the costs associated with
marketing programs, advertising costs, and literature. Selling and marketing
expenses decreased to $7,061 and $22,367 for the three and nine months ended
September 30, 1999, respectively, from $8,097 and $23,980 for the three and nine
months ended September 30, 1998, respectively. The decrease in these expenses
of approximately 13% and 7% for the three and nine months ended September 30,
1999, respectively, was attributed primarily to a decrease in general marketing
and advertising expenses related to improved cost controls. In addition,
employee-related expenses decreased as a result of an 18% reduction in headcount
from the comparable prior year periods.
Research and development expenses consisted primarily of the cost of research
and development personnel and independent contractors, as well as equipment and
facilities costs related to such activities. For the three and nine months
ended September 30, 1999, these expenses decreased to $4,510 and $14,018,
respectively, from $5,350 and $18,693 for the three and nine months ended
September 30, 1998, respectively. The decrease in expenses of approximately 16%
and 25% for the three and nine months ended September 30, 1999, respectively,
was attributed primarily to a reduction in employee related expenses as a result
of a 30% reduction in research and development headcount from the comparable
prior year periods. This headcount reduction was primarily the result of the
completion of certain development projects related to the Company's next-
generation group of products that occurred during the nine months ended
September 30, 1998.
Qualifying capitalized software development costs were immaterial in both
periods. Accordingly, the Company has charged all such expenses to research and
development in the period incurred. The Company believes that significant
investments in research and development are required to remain competitive in
the software industry. Certain research and development expenditures are
incurred substantially in advance of the related revenues and, in some cases, do
not generate revenues.
General and administrative expenses consisted primarily of the cost of finance,
management, and administrative personnel, as well as legal and other
professional fees. These expenses decreased for the three and nine months ended
September 30, 1999, to $1,822 and $5,049, respectively, from $2,492 and $7,422
for the three and nine months ended September 30, 1998, respectively. These
amounts represent decreases of approximately 27% and 32%, respectively, for the
three and nine months ended September 30, 1999 from the comparable prior year
periods. The decrease was attributed primarily to a decrease in communications
expenses as a result of consolidation and improvement in the Company's
communication services and cost controls. In addition, employee-related
expenses decreased as a result of a 33% reduction in headcount from the
comparable prior year periods.
Amortization of intangibles increased for the three and nine months ended
September 30, 1999, to $765 and $2,205, respectively, from $720 and $1,740 for
the three and nine months ended September 30, 1998. These costs are a result of
the acquisitions of Folio and ICentral and the related goodwill.
16
<PAGE>
Acquired In-Process Research and Development
Acquired in-process research and development expenses consisted of $5,700
relating to the ICentral acquisition in the second quarter of fiscal 1998. These
costs were expensed as of the acquisition dates and are included in the
accompanying consolidated statements of operations for the respective periods.
The amount allocated to acquired in-process research and development relates to
projects that have not yet reached technological feasibility and that, until
completion of development, have no alternative future use.
As of the acquisition date of ICentral in April 1998, ICentral had initiated a
research and development effort related to the third major revision of its
flagship ShopSite product suite, an Internet commerce product suite that allows
small to medium-sized web merchants to transact business on the Internet. The
elements of the product suite are as follows: (1) ShopSite Express, a tool that
allows web designers to add a shopping system to any existing web site, (2)
ShopSite Manager, which offers the shopping functionality of ShopSite Express
combined with an automated commerce site management system, and (3) ShopSite
Pro, which combines the features of ShopSite Manager with an additional set of
advanced commerce tools including real-time payment processing. The in-process
technology included significant new modifications of the features and
functionality of the current suite of products, such as the addition of
Cybercash as a payment option, quantity discount interface capability to allow
customers to purchase at quantity discounts, tax modifications to allow the
merchant to decide whether to calculate tax before or after shipping is
calculated, improved shipping configuration of United Parcel Service shipping
zones, and a mailing list generator. It is expected that these modifications
will further enhance the product's ease of use in the marketplace. As of the
acquisition date, the in-process project was approximately 60% complete and it
was estimated that the in-process technology would have a 7-year life and that
the first product(s) were introduced during the second quarter of fiscal 1999.
The value of the acquired in-process technology was computed using a discounted
cash flow analysis on the anticipated income stream of the estimated future
product sales of the developed technology. This was determined by estimating the
costs of developing the purchased in-process development project into
commercially viable products, estimating the resulting net cash flows from the
project adjusting the cash flow for percentage of completion and the core
technology component of the acquired technology and discounting adjusted the net
cash flows to their present value. The estimates used to value the future
revenue benefits of the in-process research and development were based on
elements of relevant market sizes and growth/risk factors, expected trends in
technology, and the nature and expected timing of new product introductions by
the Company and its competitors.
In the valuation analysis, aggregate revenues for ICentral products were
estimated to be approximately $3,300 for fiscal 1998 and increasing to
approximately $62,500 in 2007. Revenues for the in-process technology were
estimated to be approximately $2,300 for fiscal 1998 and increasing to
approximately $28,700 in fiscal 2002, representing a compound annual growth rate
of approximately 65%. The estimated revenues for the in-process technologies
were expected to peak within four years of the acquisition date. The estimated
overall life of the acquired developed technologies of ICentral is five years.
Operating expenses used in the valuation of ICentral included selling, general
and administrative, and research and development expenses. Operating expenses
were estimated based on historical expense levels of similar companies operating
in similar industries. Selling, general and administrative expenses expressed as
a percentage of revenue for the in-process technologies were estimated to be 30%
throughout the estimation period. Research and development expenses, also
expressed as a percentage of estimated revenue, were estimated to be
approximately 32% and 13% in 1998 and 1999, respectively, and stabilizing at 20%
for the remainder of the estimation period. Cost of sales was estimated based on
an analysis of historical information for similar companies operating in similar
industries. Cost of sales for both the developed and in-process technologies
was estimated to be 19% throughout the estimation period.
The discount rate selected for both the developed and in-process technologies
was 22% and was estimated by calculating a Weighted Average Cost of Capital
(WACC) based on publicly traded guideline companies. The WACC represents the
blended, after-tax costs of debt and equity. The cost of equity was estimated
using the Capital Asset Pricing Model (CAPM) and by reviewing venture capital
rates of return.
17
<PAGE>
The fair values of the assets acquired from ICentral were allocated between the
following:
<TABLE>
<CAPTION>
FAIR
MARKET
VALUE
<S> <C>
ASSET
In-process research and development................................. $ 5,700
Other acquired intangible assets.................................... 6,300
Current assets...................................................... 86
-------
Total:........................................................... $12,086
=======
</TABLE>
The valuation analysis was performed in accordance with the provisions of
Accounting Principles Board (APB) Opinions Nos. 16 and 17, wherein all
identifiable assets and intangible assets acquired were identified and analyzed
to determine their fair market values. In addition, to identify the in-process
research and development and to determine if there were any alternative future
uses for these projects, these projects were evaluated in the context of
Interpretation 4 of Financial Accounting Standards Board Statement No. 2 (SFAS
2) and SFAS 86: Accounting For Software Costs. Such evaluation consisted of a
specific review of the efforts and uniqueness of the developments of these
projects, and a determination of whether technological feasibility had been
achieved. Accordingly, the Company believed that the foregoing assumptions used
in the ICentral acquired in-process research and development analysis were
reasonable at the time of acquisition. However, no assurance can be given that
the underlying assumptions used to estimate expected sales revenues, development
costs, or profitability, or the events associated with such projects will
transpire, or have transpired, as estimated.
OTHER INCOME AND EXPENSE
Interest income represents interest earned on cash, cash equivalents and
marketable securities. Interest income decreased to $275 and $832, respectively,
for the three and nine months ended September 30, 1999, from approximately $376
and $985 for the three and nine months ended September 30, 1998, respectively.
The decrease was attributed primarily to lower average investments in cash, cash
equivalents and marketable securities during the periods. Interest expense
decreased to $155 and $465 for the three and nine months ended September 30,
1999, respectively, from $312 and $849 for the three and nine months ended
September 30, 1998, respectively. The decrease in interest expense was
attributed primarily to the final payment made on the note payable issued to
Reed Elsevier in 1997 in connection with the Folio acquisition. Interest
expense relates to the Company's line-of-credit, the Company's note payable
issued in conjunction with the Folio acquisition, the mortgage on the Company's
Provo, Utah facility, as well as an obligation under a license agreement. For
the three months ended September 30, 1999, other income of $26 represents
foreign currency translation gains as compared to $19 of foreign currency
translation gains in the prior year period. For the nine months ended September
30, 1999, other expense of $126 represents foreign currency translation losses
as compared to $52 of foreign currency translation losses in the prior year
period.
INCOME TAXES
The Company recorded a provision for foreign income taxes of $71 and $216 for
the three and nine months ended September 30, 1999, respectively, compared to
$121 and $186 for the three and nine months ended September 30, 1998,
respectively. This provision was recorded for estimated taxes due in foreign
jurisdictions. The Company has had losses for U.S. tax purposes for all periods
to date and, accordingly, there has been no provision for U.S. income taxes.
SUBSEQUENT EVENT
The Company expects to record non-recurring charges of approximately $4,000 to
$4,500 in connection with the FutureTense merger relating to legal fees,
accounting services and other integration costs as well as additional expenses
of approximately $1,000 to $1,500 relating to a marketing and advertising
campaign that is designed to promote the new entity. Management acknowledges
that actual costs may be higher than are presently anticipated.
18
<PAGE>
In addition, the Company may incur other additional unanticipated merger costs
and these costs may delay the anticipated benefits of the merger. Some of these
nonrecurring costs will be charged to operations in the fourth quarter of 1999,
while others will be expensed as incurred during the post-merger integration
period.
LIQUIDITY AND CAPITAL RESOURCES
At September 30, 1999, the Company had $33,059 in cash, cash equivalents, and
marketable securities, which represented a decrease of $1,820 from December 31,
1998.
The Company's operating activities used cash and cash equivalents of
approximately $1,220 for the nine months ended September 30, 1999 and used cash
of $20,872 for the nine months ended September 30, 1999 and 1998, respectively.
The improvement in cash used in operating activities was primarily the result of
the reduction in net loss and in the accounts receivable balance. The Company's
net loss decreased approximately 74% to $6,251 for the nine months ended
September 30, 1999 from $23,850 for the comparable prior year period due
primarily to a reduction in the Company's operating expenses. The level of
accounts receivable improved primarily as a result of shorter average payment
terms in new contracts in the commerce segment and payment of receivables that
had extended payment terms.
The Company's investing activities generated cash and cash equivalents of
approximately $612 for the nine months ended September 30, 1999 and used cash of
$21,233 for the nine months ended September 30, 1998. The principal use of cash
from investing activities for the nine months ended September 30, 1999 was
$1,157 for legal, accounting and other costs related to the FutureTense merger.
Additionally there was an improvement in cash from investing activities due to a
decrease in purchases of marketable securities and a reduction in spending on
equipment. In addition, $1,420 of net cash was used in the ICentral acquisition
(see Note 4) in the nine months ended September 30, 1998.
The Company's financing activities used cash and cash equivalents of
approximately $157 for the nine months ended September 30, 1999 and provided
approximately $36,738 in the comparable prior year period. The principal use of
cash from financing activities for the nine months ended September 30, 1999 was
the final payment of $5,000 on the note payable issued to Reed Elsevier in
connection with the Folio acquisition and the $650 reduction in the amount
outstanding under the line of credit. In addition, the Company received
proceeds of $5,591 from the exercise of stock options under the Company's 1994
Stock Incentive Plan and stock purchases under the Company's Employee Stock
Purchase Plan. During the first nine months of 1998, the Company received
proceeds of $27,336 for the issuance of common stock. The Company received
$5,000 from Intel and $20,000 from CMG and CVI for the private sale of equity
securities. In addition, the Company received proceeds of $2,336 from the
exercise of stock options under the Company's 1994 Stock Incentive Plan and
stock purchases under the Company's Employee Stock Purchase Plan.
In July 1998, the Company entered into a $2,800 mortgage of its Provo, Utah,
building which bears interest at the fixed rate of 8.5%. The mortgage principal
payments are based upon a 20-year term with a balloon payment required at the
end of the fifth year.
The Company has an unsecured bank credit facility that provides up to $15,000 in
financing in the form of a demand line of credit. Borrowings under this line
are limited to 80% of eligible domestic accounts receivable and 90% of eligible
foreign accounts receivable, as defined, and bears interest at the prime lending
rate (8.25% at September 30, 1999). The Company is required to comply with
certain restrictive covenants under this credit facility and the line is
collateralized by the Company's accounts receivable. The Company was in
compliance with all such convenants at September 30, 1999. During the nine
months ended September 30, 1999, the Company decreased its borrowings under this
credit facility to $10,350 from $11,000 at December 31, 1998. At September 30,
1999, $4,650 remained available to the Company under this credit facility.
At December 31, 1998, the Company had net operating loss carryforwards for
income tax purposes of approximately $92,000. These losses are available to
reduce federal and state taxable income, if any, in future years. These losses
are subject to review and possible adjustment by the Internal Revenue Service
and may be limited in the event of certain cumulative changes in ownership
19
<PAGE>
interests of significant stockholders over a three-year period that are in
excess of 50%. While the Company believes that it has experienced a change in
ownership in excess of 50%, it does not believe that this change in ownership
will significantly impact the Company's ability to utilize its net operating
loss carryforwards.
The Company believes that its existing capital resources are adequate to meet
its cash requirements for at least the next 12 months. The Company will incur
additional spending during the fourth quarter related to the Futuretense merger.
These expenditures will primarily relate to professional fees of approximately
$4,000 to $4,500 and marketing expenditures of approximately $1,000 to $1,500.
However, there can be no assurance that changes in the Company's plans or other
events affecting the Company's operations will not result in accelerated or
unexpected expenditures.
YEAR 2000 COMPLIANCE
Background
The Company recognizes that it must ensure that its products and operations will
not be adversely impacted by Year 2000 software failures, which can arise in
date-sensitive software applications that utilize a field of two digits to
define the applicable year. In such applications, a date using "00" as the year
may be recognized as the year 1900 rather than the year 2000.
State of Readiness
With respect to the Company's internal systems, all mission critical information
technology systems are considered to be Year 2000 compliant, as defined by the
criteria established by the British Standards Institute. With respect to the
Company's software products, the Company has developed and implemented a
detailed Year 2000 test procedure for the phase review and software release
process to ensure that its software products are Year 2000 compliant. The
execution of this test procedure began in October 1998 and, as a result, Year
2000 compliant software upgrades have been developed and distributed.
Additionally, approximately 95% of the Company's embedded product vendors are
already considered to be Year 2000 compliant, based wholly on external and
internal testing of such embedded products. As a result, management expects
that the Company and its key vendors will be positioned to successfully meet all
Year 2000 compliance issues for the Company's products.
Related Costs
Management has assessed the related costs for Year 2000 compliance to be in the
range of $750 to $1,000. To date, the Company has incurred costs of
approximately $750 for its Year 2000 projects. Such costs may include those for
research and development, capital equipment, outside software tools, outside
contractors, and other internal resources that may be assigned to the project.
Management acknowledges that these costs may be subject to reassessment as
testing of the Company's products and mission critical systems is completed and
compliance is fully achieved.
Perceived Risks
At the present time, management does not expect Year 2000 issues to have a
material adverse impact on the Company's business or future operating results.
However, there can be no assurance that there will not be interruptions of
operations or other limitations of system or product functionality, or that the
Company will not incur significant costs to avoid such interruptions or
limitations. For example, such interruptions or limitations may include
disruptions in customer service and technical support facilities, interruptions
to customer access to on-line products and services, information, or other
communications, delays in manufacturing and shipping of products, and other
interruptions or delays in the day-to-day operations of the Company. In
addition, even if the Company's products are Year 2000 compliant, other systems
or software used by the Company's domestic and international customers,
including such software created through custom development either by the
Company, its customers, or other third party developers, may not be Year 2000
compliant. The failure of any such non-compliant third-party
20
<PAGE>
software or systems contained in such operating environments may negatively
affect the performance of the Company's products, which may lead to increased
costs associated with correcting technical problems, lost sales, or other
negative consequences resulting from customer dissatisfaction, including
litigation. Such failure may have a material adverse effect on the Company's
business, financial condition and operating results.
Contingency Plans
In order to avoid such material adverse effects, the Company will continue to
seek business relationships only with those entities that are actively and
successfully addressing Year 2000 issues. If the inability of certain existing
vendors or customers to successfully address Year 2000 issues begins to present
adverse business effects for the Company, management may elect to suspend such
business relationships until such time that such vendors or customers become
fully compliant.
CERTAIN FACTORS THAT MAY AFFECT FUTURE OPERATING RESULTS
Introduction
This Quarterly Report contains certain forward-looking statements. For this
purpose, any statements contained herein that are not statements of historical
fact may be deemed to be forward-looking statements. Without limiting the
generality of the foregoing, the words ``believes'', ``anticipates'', ``plans'',
``expects'', and similar expressions are intended to identify forward-looking
statements. There are a number of important factors that could cause the
Company's actual results to differ materially from those indicated by forward-
looking statements made in this Quarterly Report and presented elsewhere by
management from time to time. Some of the important risks and uncertainties
which may cause the Company's operating results to differ materially or
adversely are discussed below and in the Company's Annual Report on Form 10-K/A
for the fiscal year ended December 31, 1998 filed with the Securities and
Exchange Commission on April 12, 1999.
Demand for Open Market's products may decrease if Open Market is unable to adapt
continually to rapid changes in the market for Internet-based software
applications.
The market for Internet-based software applications is characterized by rapid
technological change. As a result, there is uncertainty about the widespread
acceptance of new products that can cause significant delays in the sales cycle.
The introduction of product or service enhancements or new products or services
embodying new technologies, industry standards, or customer requirements could
supplant or make our existing products and services obsolete. Open Market must
continue to upgrade its technologies and commercialize products and services
incorporating such technologies, which may lengthen Open Market's sales cycles.
Open Market's operating results are largely dependent upon the continued
development and acceptance of Internet commerce.
The market for our Internet products and services has only recently begun to
develop, is rapidly evolving and has an increasing number of market entrants
that have introduced and developed products and services for Internet commerce
that compete with Open Market. Open Market's future operating results depend
upon the development and growth of the market for Internet-based packaged
software applications, including electronic commerce applications. The
widespread acceptance of electronic commerce in general and, in particular, the
Internet as a sales, marketing, order receipt and processing medium are highly
uncertain and subject to a number of risks. The following critical issues remain
unresolved and may impact the growth of Internet commerce:
. security;
. reliability;
. ease of use;
. quality;
21
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. service; and
. government regulation.
If the Internet commerce market fails to continue to develop or develops more
slowly than expected, Open Market's business, operating results and financial
condition could be materially adversely affected.
Government regulation of and legal uncertainties relating to the Internet may
adversely affect Open Market's ability to market products facilitating Internet
commerce.
Open Market is not currently subject to direct regulation by any U.S. government
agency, other than regulations applicable to businesses generally, and there are
currently few laws or regulations directly applicable to access to, or commerce
on, the Internet. Moreover, the applicability to the Internet of existing laws
governing issues such as property ownership, libel and personal privacy is
uncertain. However, due to the increasing popularity and use of the Internet, it
is possible that a number of laws and regulations may be adopted with respect to
the Internet both in the U.S. and internationally, covering issues such as user
privacy, taxation, the content of products and the nature of services. The
adoption of any such laws or regulations may decrease the growth of the Internet
or inhibit electronic commerce, which could in turn adversely affect Open
Market's business, operating results or financial condition. Due to the
encryption technology contained in Open Market's products, such products are
subject to U.S. export controls. U.S. export controls, either in their current
form or as may be subsequently enacted, may delay the introduction of new
products or limit Open Market's ability to distribute products outside of the
United States. In addition, federal or state legislation or regulation may
further limit levels of encryption or authentication technology. Further,
various countries regulate the import of certain encryption technology and have
adopted laws relating to personal privacy issues that could limit our ability to
distribute products in those countries. Any such export or import restrictions,
new legislation or regulation or government enforcement of existing regulations
could have a material adverse effect on Open Market's business, financial
condition and operating results.
The sales cycles for Open Market's products may be lengthy due to the complexity
of Open Market's products and could negatively impact Open Market's operating
results.
Open Market's products are complex and prospective customers often must make
significant investment decisions to purchase Open Market's products.
Accordingly, licensing such complex software products may require Open Market to
provide a significant level of education to prospective customers regarding the
use and benefits of its products, which may be time consuming. As a result, Open
Market's sales cycles may be lengthy and subject to a number of significant
delays. Delays due to lengthy sales cycles or delays in Open Market's generation
of customers or deployment of its Internet commerce products could have a
material adverse effect on Open Market's business, financial condition and
operating results and could be expected to cause Open Market's operating results
to vary significantly from quarter to quarter.
Failure to provide secure transmission of information over the Internet could
adversely impact the acceptance of Open Market's Internet commerce products.
A significant barrier to market acceptance of online commerce and communication
is the concern regarding the secure exchange of valuable and confidential
information over public networks. Open Market relies on encryption and
authentication technology to provide the security and authentication necessary
to effect the secure exchange of valuable and confidential information. There
can be no assurance that advances in computer capabilities, new discoveries in
the field of cryptography or other events or developments (such as break-ins and
similar disruptive problems caused by Internet users) will not result in a
compromise or breach of algorithms used by Open Market in Open Market's products
to protect customer transaction data. If any such compromise or breach were to
occur, it could have a material adverse effect on Open Market's business,
financial condition, and operating results.
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<PAGE>
Demand for Open Market's products may decrease if Open Market cannot compete
successfully in the Internet commerce software market.
The market for Internet commerce software is new and intensely competitive. The
Internet is characterized by an increasing number of market entrants that have
introduced or developed products and services for commerce on the Internet. Open
Market's failure to introduce new products, services or product enhancements on
a timely basis may delay or hinder market acceptance and allow competitors to
gain a greater market share than Open Market. Many of Open Market's competitors
have greater financial, technical and marketing resources and greater name
recognition than Open Market does. Due to competition, Open Market may have to
reduce the prices of its products substantially or introduce lower-priced lines
of products to gain greater market share. Open Market's operating results will
be affected by the number of competitors it has and their pricing strategies and
market acceptance of their products. Open Market cannot assure you that it will
be able to compete successfully against these companies.
Open Market will depend on the continued service of its key technical and senior
management personnel to secure, maintain and enhance its industry position.
Open Market's future success depends in significant part upon the continued
service of its key technical and senior management personnel, and its continuing
ability to attract and retain highly qualified technical and managerial
personnel in a highly competitive market. Open Market's ability to establish and
maintain a position of technology leadership in the Internet commerce industry
depends in large part upon the skills of its development personnel.
Fluctuations in Open Market's quarterly revenue and operating results may result
in reduced profitability and lead to reduced prices for its stock.
Open Market's expense levels are fixed in advance and are based in part on its
expectations as to future revenues. Quarterly sales and operating results will
generally depend on the volume and timing of orders received within the quarter.
Open Market may be unable to adjust spending in a timely manner to compensate
for unexpected revenue shortfalls. Open Market expects in the future to
experience significant fluctuations in quarterly operating results that may be
caused by many factors, including, among other things, the following:
. the number, timing and significance of product enhancements and new product
announcements by Open Market or its competitors;
. the length of Open Market's sales cycle;
. market acceptance of, and demand for, Open Market's products;
. the pace of development of electronic commerce conducted on the Internet;
. customer order deferrals in anticipation of enhancements or new products
offered by Open Market or Open Market's competitors;
. non-renewal of service agreements;
. software defects and other product quality problems;
. Open Market's ability to attract and retain key personnel;
. the extent of international sales;
. changes in the level of operating expenses; and
. general economic conditions.
23
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As a result, Open Market's operating results in future quarters may be below the
expectations of market analysts and investors. In that event, the price of Open
Market's common stock would likely decrease.
Difficulties presented by international markets could negatively impact Open
Market's business.
In each of the three and nine month periods ended September 30, 1999,
international sales comprised of approximately 30% of total sales. A downturn
in foreign economies may result in decreased sales of Open Market's products.
Generally, sales and manufacturing operations are subject to the risks normally
associated with international operations, including the following:
. currency conversion risks and currency fluctuations limitations, including
taxes, on the repatriation of earnings;
. political instability, civil unrest and economic instability;
. greater difficulty enforcing intellectual property rights and weaker laws
protecting such rights;
. greater difficulty and expense in conducting business abroad;
. complications in complying with foreign laws and changes in governmental
policies;
. transportation delays and interruptions; and
. the imposition of tariffs.
These risks could negatively impact international sales and manufacturing
operations, which could have a material adverse effect on Open Market's
business, financial condition and operating results.
Open Market will continue to depend on intellectual property rights to protect
its products although it may not always be able to protect such rights.
Open Market's success is dependent to a significant degree on its proprietary
software technology. Open Market provides its products to end users generally
under non-exclusive, non-transferable licenses for the term of the agreement,
which is usually in perpetuity. Open Market's policy is to enter into
confidentiality and assignment agreements with its employees, consultants, and
vendors and generally to control access to, and distribution of, its software,
documentation, and other proprietary information. Notwithstanding these
precautions, it may be possible for a third party to copy or otherwise obtain
and use Open Market's software or other proprietary information without
authorization or to develop similar software independently. Although Open Market
holds five U.S. patents covering certain aspects or uses of electronic commerce
software, it cannot be sure of the degree of intellectual property protection
such patents will provide. Policing unauthorized use of Open Market's products
is difficult, particularly because the global nature of the Internet makes it
difficult to control the ultimate destination or security of software or other
data transmitted. The laws of other countries may afford Open Market little or
no effective protection of its intellectual property. There can be no assurance
that the steps taken by Open Market will prevent misappropriation of its
technology or that agreements entered into for that purpose would be
enforceable.
Other parties may claim that Open Market has infringed their intellectual
property rights and such claims may interrupt Open Market's regular business
operations.
In the future, other parties may assert claims for infringement or invalidity
(or claims for indemnification from Open Market customers resulting from
infringement claims) against Open Market for violation of patent, trademark,
copyright or other proprietary rights as a result of the use by Open Market,
Open Market's customers or other third parties of Open Market's products to
transmit, disseminate, or display information over or on the Internet. Such
claims are likely to become increasingly prevalent as the Internet gains more
widespread use and new parties enter already competitive markets where
intellectual property rights are essential to conducting business. Any such
24
<PAGE>
claims, with or without merit, could be time consuming to defend, result in
costly litigation, divert management's attention and resources, cause product
shipment delays, or require us to enter into royalty or licensing agreements.
There can be no assurance that any licenses would be available on reasonable
terms, if at all, and the assertion or prosecution of any such claims could have
a material adverse effect on Open Market's business, financial condition and
operating results.
Open Market's products may contain undetected defects which may prove costly and
time-consuming for Open Market to correct.
Sophisticated software products, such as those Open Market produces and markets,
may contain undetected errors or failures that become apparent when Open Market
introduces the products or when it provides an increased volume of services.
Open Market cannot assure you that its testing and its potential customers will
detect all errors in Open Market's products prior to licensing or sale.
Correcting such errors may result in loss of revenues, delay in market
acceptance, diversion of development resources, damage to Open Market's
reputation, or increased service and warranty costs, which would have a material
adverse effect on Open Market's business, financial condition and operating
results.
Open Market may need to engage in litigation to protect its intellectual
property rights in the competitive market for Internet software products and
services.
Litigation may be necessary in the future to enforce Open Market's intellectual
property rights, to protect its patents, copyrights, trademarks or trade
secrets, to determine the validity and scope of the proprietary rights of
others, or to defend against claims of infringement or invalidity. Such
litigation, whether successful or unsuccessful, could result in substantial
costs and diversions of resources, which may have a material adverse effect on
Open Market's business, financial condition and operating results. Litigation
regarding intellectual property rights, copyrights, trademarks and patents is
increasingly common in the software industry. Intellectual property litigation
is complex and expensive and the outcome of such litigation is difficult to
predict.
Delays in Open Market's planned release schedule may result in a loss of market
share.
Delays in the planned release of Open Market's new products may adversely affect
forecasted revenues and create operational inefficiencies resulting from
staffing levels designed to support the forecasted revenues. Open Market's
failure to introduce new products, services or product enhancements on a timely
basis may delay or hinder market acceptance and allow competitors to gain
greater market share than Open Market.
Open Market has a limited operating history.
Open Market began operations in 1994. Open Market's ability to successfully
market its existing products and to develop and market new products must be
considered in light of the risks, expenses and difficulties frequently
encountered by companies in their early stage of development, particularly
companies in new and rapidly evolving markets like the Internet.
Volatility of Stock Price
Open Market's common stock is quoted on the NASDAQ National Market. The market
price of Open Market's common stock, like that for the shares of many other high
technology and Internet companies, has been and may continue to be volatile. For
example, from October 1, 1998 to September 30, 1999, Open Market's common stock
traded as high as $27 per share and as low as $5 per share. Recently, the stock
market in general and the shares of software and Internet companies in
particular have experienced significant price fluctuations. The market price may
continue to fluctuate significantly in response to various factors, including:
. quarterly variations in operating results or growth rates;
. the announcement of technological innovations;
25
<PAGE>
. the introduction of new products by Open Market and its competitors;
. changes in estimates by securities analysts;
. market conditions in the industry;
. announcements and actions by competitors;
. regulatory and judicial actions; and
. general economic conditions.
The failure of Open Market's software products and internal computer systems and
software programs to be year 2000 compliant could negatively impact its
business.
Many currently installed computer systems and software products only accept two
digits to identify the year in any date. Thus, the year 2000 will appear as
``00,'' which a system might consider to be the year 1900 rather than the year
2000. This could result in software product failures, system failures, delays or
miscalculations causing disruptions to Open Market's operations. Open Market has
begun and will continue to assess the impact of year 2000 date recognition
problems on its commercial products and internal systems. Open Market cannot be
certain that it will identify all of the potential risks to its business that
could result from year 2000-related issues. However, Open Market has identified
the following risks of which you should be aware:
. Year 2000 problems that affect Open Market's internal systems. Open Market
has relied on the representations and certifications by its software vendors
regarding the year 2000 readiness of its information technology systems and
has not conducted extensive independent testing of these systems. It is
possible that these systems could contain undetected problems that could
cause serious disruptions which would have a material adverse effect on Open
Market's business, financial condition and operating results.
. Year 2000 problems that affect Open Market's software products. Open Market
is implementing a detailed year 2000 test procedure for the phase review and
software release process to ensure that its software products will be year
2000 compliant. This testing began in October 1998, and Open Market expects
that such testing will continue through 1999 and into 2000. As part of this
process, Open Market must also determine, through a combination of internal
and external testing, whether the components of its software products
supplied to Open Market by vendors are year 2000 compliant. Open Market
cannot be certain that such testing will detect all potential year 2000
problems. The failure of Open Market's products to be year 2000 compliant
could result in claims by or liability to Open Market's customers, which
could have a material adverse effect on Open Market's business, financial
condition and operating results.
. The costs associated with remedying year 2000 problems. Open Market has
assessed the cost of achieving year 2000 compliance to be in the range of
$750 to $1 million. To date, Open Market has incurred costs of approximately
$750 for its year 2000 projects. Such costs may include those for research
and development, capital equipment, outside software tools, outside
contractors or internal resources which may be allocated to year 2000
projects. There can be no assurance that these costs will not increase or be
subject to reassessment as testing of Open Market's products and essential
technology information systems continues. Open Market may incur significant
costs to avoid disruptions in customer service, technical support, access to
on-line services and products and product functionality. Failure to contain
costs could have a material adverse effect on Open Market's business,
financial condition and operating results.
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Open Market may face challenges in integrating Open Market and FutureTense and,
as a result, may not realize the expected benefits of the merger.
The Open Market and FutureTense merger was completed on October 15, 1999.
Integrating the operations and personnel of Open Market and FutureTense has been
and will continue to be a complex process, and Open Market is uncertain that the
integration will be completed rapidly or will achieve the anticipated benefits
of the merger. The successful integration of Open Market and FutureTense will
require, among other things, integration of each company's sales and marketing
groups and coordination of each company's development efforts. The diversion of
the attention of each company's management and any difficulties encountered in
the process of combining both companies could cause the disruption of, or a loss
of momentum in, the activities of the combined company's business. Further, the
process of combining both companies could negatively affect employee morale and
the ability of Open Market to retain some of its key employees after the merger.
In addition, the announcement and completion of the merger could cause customers
to delay or change orders for products as a result of uncertainty over the
integration of both companies' software products. The inability to successfully
integrate the operations and personnel of Open Market and FutureTense, or any
significant delay in achieving integration, could have a material adverse effect
on the business, financial condition and operating results of Open Market after
the merger.
Open Market may not be able to retain key employees of FutureTense.
Because of the high valuation Open Market placed on FutureTense, its key
founders and employees have received a substantial number of Open Market shares
and can sell these shares at substantial gains. In many cases, these individuals
could become financially independent through these sales, before the products of
either company have fully matured into commercially deliverable products
commanding reasonable market share. Additionally, startup and other companies
will seek out these individuals due to the financial result they have achieved
for their investors. Under the circumstances, Open Market faces a difficult and
significant task of retaining and motivating the key personnel of FutureTense to
stay committed to Open Market. Open Market has entered into employment
agreements with only five employees of FutureTense. Open Market may nonetheless
be unsuccessful in retaining these employees or any other FutureTense employees.
The Market's response to the recently completed FutureTense merger could effect
Open Market's stock price.
Under the terms of the merger agreement with FutureTense, Open Market issued
7,346,210 shares of its common stock to the holders of outstanding FutureTense
stock. In addition, Open Market assumed employee options and a warrant to
acquire FutureTense stock that will convert into options to acquire 1,124,628
shares of Open Market common stock. A substantial portion of these options are
exercisable upon the closing of the transaction. Market response to the
issuuance of such share of Open Market common stock could cause the Open Market
stock price to decrease.
Significant FutureTense merger-related charges against earnings will increase
Open Market's losses in the quarter in which the merger is consummated and
during the post-merger integration period.
The Company expects to record non-recurring charges of approximately $4.0 to
$4.5 million in connection with the merger relating to legal fees and accounting
services and other integration costs and management acknowledges that actual
costs may be higher than are presently anticipated. In addition, the Company
may incur other additional unanticipated merger costs and these costs may delay
the anticipated benefits of the merger. Some of these nonrecurring costs will
be charged to operations in the fourth quarter of 1999 while others will be
expensed as incurred during the post-merger integration period.
Customers of Open Market and FutureTense may delay or cancel orders as a result
of concerns over the merger.
The FutureTense merger could cause customers and potential customers of Open
Market and FutureTense to delay or cancel orders for products as a result of
customer concerns and uncertainty over product evolution, integration and
support over the combined company's products. Such a delay or cancellation of
orders could have a material adverse effect on the business, financial condition
and operating results of Open Market or FutureTense.
27
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ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Foreign Exchange Hedging. The accounts of the Company's foreign subsidiaries are
translated in accordance with SFAS No. 52, Foreign Currency Translation. In
translating the accounts of the foreign subsidiaries into U.S. dollars, assets
and liabilities are translated at the rate of exchange in effect at quarter end,
while stockholders' equity is translated at historical rates. Revenue and
expense accounts are translated using the weighted average exchange rate in
effect during the quarter. Foreign currency translation and transaction gains or
losses for the Company's subsidiaries are included in the accompanying
consolidated statements of operations since the functional currency for the
Company's subsidiaries is the U.S. dollar.
Investment Portfolio. The Company does not invest in derivative financial
instruments and other instruments that meet the high credit quality standards,
as specified in the Company's investment policy guidelines. The Company's
policy guidelines also limit the amount of credit exposure of any one issue,
issuer, and type of investment. See "Note 2--Summary of Significant Accounting
Policies" in the Notes to Consolidated Financial Statements.
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PART II--OTHER INFORMATION
ITEM 1. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
See exhibit index attached hereto:
(b) During the third quarter of 1999, the Company filed the following reports
on Form 8-K:
(1) On July 14, 1999 Open Market, Inc. announced its plans to acquire
FutureTense, Inc. pursuant to an Agreement and Plan of Merger entered
into on July 14, 1999. The Current report in Form 8-K reporting this
event was filed with the Securities and Exchange Commission on July 19,
1999.
(2) On September 15, 1999, Open Market, Inc. announced that Peter Woon,
Senior Vice President of Engineering of Open Market, Inc., had resigned
to pursue an opportunity as a division president and Chief Operating
Officer of Insurance Technology Services of America, Inc. The Current
Report on Form 8-K reporting this event was filed with the Securities
and Exchange Commission on September 17, 1999.
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SIGNATURES
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 hereunto duly authorized.
Open Market, Inc.
(Registrant)
Date: November 11, 1999
By: /s/ Betty J. Savage
--------------------------------------------
BETTY J. SAVAGE
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
(PRINCIPAL FINANCIAL OFFICER)
Date: November 11, 1999
By: /s/ Annmarie Russell
--------------------------------------------
ANNMARIE RUSSELL
DIRECTOR OF FINANCE
(PRINCIPAL ACCOUNTING OFFICER)
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EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
--- -----------
10.1+ Amended Master Software License and Distribution Agreement, dated
September 30, 1999 between NextPage L.C. and the Company.
27.1 Financial Data Schedule for the quarter ended September 30, 1999.
- ----------------
+ Confidential materials omitted and filed separately with the Securities and
Exchange Commission pursuant to an application for confidential treatment.
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
AMENDED AND RESTATED MASTER SOFTWARE LICENSE
AND DISTRIBUTION AGREEMENT
This Amended and Restated Master Software License and Distribution
Agreement (the "Agreement") is made and entered into this 30/th/ day of
September, 1999, but shall be deemed effective as of June 9, 1999. The
Agreement is by and between NextPage, L.C. (f/k/a ABSB, L.C.), a Utah limited
liability company, with offices at 5072 North 300 West, Provo, UT 84604
("NextPage"), and Open Market, Inc., a Delaware Corporation, with offices at 1
Wayside Road, Burlington, MA 01803, and Folio Corporation, a Utah corporation
and wholly owned subsidiary of Open Market, Inc. (Folio Corporation and Open
Market, Inc., being jointly and severally liable hereunder, are collectively
referred to hereafter as "OPEN MARKET"). The Agreement is a complete
substitute for, and hereby replaces in all respects, the Master Software License
and Distribution Agreement that was made and entered into June 9, 1999 by and
between ABSB, L.C. (now named NextPage) and Open Market, Inc. and Folio
Corporation ("the original Agreement") in order to reflect certain changes to
the original Agreement as mutually agreed by the parties.
OPEN MARKET develops, markets and sells software products and related services
which provide solutions for conducting commerce over the Internet, and
NextPage desires to develop, market and sell commercial publishing software
products, and
OPEN MARKET and NextPage wish to enter into an agreement providing for the
license of rights to certain software products from OPEN MARKET to NextPage,
including applicable technology and intellectual property rights, the assignment
of customers and distribution channels for such software products, and the
future business relationship between the parties.
In consideration of the mutual promises herein contained and other valuable
consideration, the parties hereto agree as follows:
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1. DEFINITIONS
-----------
1.1 "Folio Products" means the entire Folio software product line,
--------------
including without limitation: Folio SiteDirector, Folio Views, Folio Builder,
Folio Publisher, Folio Integrator, Folio 4, LivePublish and SecurePublish, and
all documentation related thereto.
1.2 "OPEN MARKET Commerce Products" means OPEN MARKET's software product
-----------------------------
line , including without limitation: Transact, LiveCommerce, SecureLink, and
ShopSite products, all future versions and enhancements of same, and all
necessary documentation related thereto. The parties may include as OPEN MARKET
Commerce Products eligible for distribution via NextPage pursuant to
Section 2.2, additional future software products from time to time by mutual
written agreement. OPEN MARKET shall have the right to add to or discontinue any
or all of the software products comprising the OPEN MARKET Commerce Products at
any time and nothing in this Agreement shall prohibit or restrict OPEN MARKET
from freely marketing, selling and distributing the OPEN MARKET Commerce
Products to customers.
1.3 "Folio Customers" means the licensees from OPEN MARKET of the Folio
---------------
Products as of the Effective Closing Date.
1.4 "Folio Distributors" means the authorized distributors, resellers,
------------------
business partners and commercial publishers of the Folio Products as of the
Effective Closing Date.
1.5 "Transition Plan" means the mutually agreed procedures following the
---------------
Effective Date by which (a) the obligations of OPEN MARKET to Folio Customers
and Folio Distributors, and the associated fees, rights and benefits to OPEN
MARKET, will be assigned to NextPage; (b) NextPage will assume the marketing,
sales, engineering and distribution of the Folio Products; and (c) OPEN MARKET
will provide to NextPage certain assistance regarding, without limitation,
finance, administration, information systems, human resource issues, licensee
transition, back office systems, and the coordination of databases and websites.
1.6 "Transition Period" means the limited period of time following the
-----------------
Effective Date during which OPEN MARKET will provide to NextPage transitional
assistance with respect to the support of Folio Customers and Folio Distributors
and the other items included in the Transition Plan.
1.7 "Folio Trademarks" means the registered and unregistered trademarks to
----------------
be licensed to NextPage under this Agreement, identified in Exhibit 2.3.
2
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1.8 "Affiliate" means, as to either party, any partnership, joint venture
---------
or corporation which is directly or indirectly controlling of, controlled by or
under common control with such party or any entity in which such party owns more
than 50% of the outstanding equity interests.
1.9 "Proprietary Information" means the confidential and valuable
-----------------------
information of a disclosing party which that party desires to protect against
further disclosure or competitive use and which is either (a) in written form
and designated as proprietary or confidential or (b) is disclosed orally and is
designated in writing as being proprietary or confidential within ten (10) days
of disclosure.
1.10 "Effective Closing Date" means the close of business on June 30, 1999,
----------------------
the date upon which NextPage shall assume all applicable benefits and
obligations arising under this Agreement.
1.11 "Territory" shall mean worldwide.
---------
1.12 "Business Segment" shall mean the commercial information publishing
----------------
market consisting of companies whose primary business model is the sale of
content without a significant advertising component, and which market includes
the representative customers listed in Exhibit 1.12 for purposes of
illustration.
2. TECHNOLOGY LICENSE
------------------
2.1 Folio Product License to NextPage.
---------------------------------
(a) Subject to payment of the applicable fees and royalties and compliance
with the other material terms described in this Agreement, OPEN MARKET hereby
grants to NextPage an exclusive, assignable (but only in accordance with
Section 17.1), world-wide and irrevocable license during the term of this
Agreement (subject to Section 9.3) (i) to use the Folio Products and all of the
intellectual property related to the Folio Products (e.g., patents (subject to
Section 2.4), copyrights, trademarks, service marks, sublicenseable third party
license rights, trade secrets and know-how), the documentation related to the
Folio Products, including without limitation all source code, object code and
executable code embodied in the Folio Products and all computer software, know-
how, technology, trade secrets, and other intellectual property used in the
Folio Products, and any and all other items currently used in connection with
the development, marketing, and distribution of the Folio Products, including
without limitation applicable domain names, technology, permits and licenses,
for NextPage's internal business purposes not expressly prohibited under this
Agreement, and (ii) to use, modify, make derivative works from, sell,
sublicense, market, distribute (pursuant to appropriate end user license terms
and conditions as described in Section 2.2 below), copy, modify, bundle and
otherwise exploit the same in the Territory for any and all lawful purposes,
along with the right to contract with third parties to do any of the same,
subject to 2.1(b).
3
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[Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.]
(b) NextPage will not be permitted to distribute the Folio Products in
source code form to any third party (e.g., for limited OEM licensing purposes)
without OPEN MARKET's prior written consent, which consent shall not be
unreasonably withheld taking into account only the following factors (i) whether
the licensee's [**] and [**] are similar to or exceeding [**] as of the new
effective date of this Agreement, (ii) the [**] and (iii) whether the [**] and
related [**] will be [**]. OPEN MARKET's competitive posture towards the
licensee shall not be considered by OPEN MARKET in making the foregoing
determination. With respect to item (iii) above, the parties further acknowledge
and agree that if a licensee is located in a geographic location outside of
North America or the European Union or if a licensee does not have a software
product distribution channel or software development capability comparable to
that of NextPage as of the Effective Date, the [**] Folio Products and related
assets may be [**] by OPEN MARKET. NextPage shall provide OPEN MARKET written
information regarding (i)-(iii) above in sufficient detail to enable OPEN MARKET
to make a reasonably informed evaluation and OPEN MARKET shall respond to
NextPage in writing within ten (10) business days of receiving such information.
Failure of OPEN MARKET to so respond within the foregoing ten (10) day period
shall be deemed consent. In the event OPEN MARKET withholds consent, it shall
provide NextPage within the foregoing ten (10) day period a detailed written
explanation of its reasons for doing so. Further, in the event that OPEN MARKET
withholds its consent and NextPage believes in good faith that OPEN MARKET's
tendered explanation is unreasonable under the parameters set forth above,
NextPage shall provide OPEN MARKET with a detailed written explanation of its
concerns and the matter shall be promptly escalated to a senior executive of
each party who shall promptly meet in good faith in order to resolve the
situation. If such escalation proves unsuccessful after the exercise of
reasonable efforts, NextPage may immediately submit the matter to binding
arbitration, which shall be conducted in accordance with the commercial
arbitration rules and expedited procedures of the American Arbitration
Association. The arbitration shall be held in Chicago, Illinois or such other
neutral location as the parties may mutually agree.
(c) During the term of this Agreement (and thereafter in the event the
purchase option in Section 9.3 is exercised), OPEN MARKET will not use the
source code to the Folio Products in connection with providing products or
services to its customers, except to the extent that such source code (i) was
originally developed by OPEN MARKET in connection with the OPEN MARKET Commerce
Products and provided to Folio Corporation for use in the Folio Products, (ii)
has been integrated into the OPEN MARKET Commerce Products prior to the
Effective Date or (iii) was independently developed by the OPEN MARKET
engineering team (in the Burlington or ShopSite/Provo facilities) and provided
to Folio Corporation for use in the Folio Products. The exclusive license use
rights granted to NextPage shall not include any rights to any OPEN MARKET
4
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Commerce Products, either in whole or in part, or to any third party products
that OPEN MARKET licenses from third parties, except as expressly provided under
this Agreement.
2.2 OPEN MARKET Commerce Products License to NextPage. OPEN MARKET hereby
-------------------------------------------------
grants to NextPage in object code form only, a non-exclusive, non-transferable
and world-wide license to sublicense, distribute, and make available to others,
the OPEN MARKET Commerce Products solely to the Business Segment in the
Territory under end user license agreements containing terms substantially
similar to those in Exhibit 2.2 and which are legally sufficient to (i) notify
the customer that the applicable OPEN MARKET Commerce Product is protected by
copyright, (ii) notify the customer that the applicable OPEN MARKET Commerce
Product is being licensed and that ownership is not being transferred, (iii)
prohibit unauthorized copying or transfer of the applicable OPEN MARKET Commerce
Products, (iv) restrict use of the applicable OPEN MARKET Commerce Products as
reasonably appropriate, (v) disclaim all implied warranties with respect to the
use of the applicable OPEN MARKET Commerce Products, including but not limited
to any warranties of merchantability, fitness for a particular purpose, or
warranties arising from usage of trade or course of dealing, and (vi) disclaim
or limit any liability of Open Market related to the applicable OPEN MARKET
Commerce Products in the same manner that NextPage disclaims or limits its
liability, consistent with the applicable OPEN MARKET standard end-user license.
Notwithstanding the foregoing, NextPage shall not be authorized to market and
distribute OPEN MARKET's ShopSite product to entities that intend to provide a
hosted ShopSite service offering to third party merchants; provided, however,
that NextPage shall be allowed to be a ShopSite host itself and to service third
parties pursuant to OPEN MARKET's customary terms and conditions for such
hosting arrangements. At Licensee's request, the parties may discuss and
mutually agree in good faith on whether certain potential customer accounts are
within the Business Segment or whether OPEN MARKET will allow exceptions to this
restriction on a case-by-case basis in its sole reasonable discretion. Any
potential channel conflict related to the direct solicitation of any customer
for the purpose of selling Transact by both NextPage and OPEN MARKET shall be
addressed by the parties' designated relationship managers pursuant to Section
5.4 in order to resolve any customer confusion and to provide that OPEN MARKET
does not wilfully impede or inhibit NextPage's ability to sell OPEN MARKET
Commerce Products within the Business Segment. If the respective relationship
managers are unable to resolve any such channel conflict despite exercising
diligent efforts, the matter will be promptly escalated to the Vice President of
Sales of each party.
2.3 Trademark License. OPEN MARKET hereby grants to NextPage an
-----------------
exclusive, transferable (subject to OPEN MARKET's reasonable consent) and
worldwide license to use, solely in connection with the Folio Products, on
packaging, in advertising, literature, publicity, and other promotional
materials, the OPEN MARKET trademarks listed in Exhibit 2.3 (the "Trademarks")
during the term of this Agreement, in accordance with OPEN MARKET's use
guidelines provided in Exhibit 2.3. NextPage acknowledges that OPEN MARKET owns
all rights to the Trademarks.
5
<PAGE>
NextPage shall not during or after the term (i) do anything, during or after the
term, which could adversely affect the validity or enforceability of the
Trademarks or OPEN MARKET's rights therein; or (ii) without OPEN MARKET's prior
written consent, use or adopt any Trademark or any name, design or symbol
similar thereto, as part of, on, in connection with (iii) NextPage's formal or
informal business, private, substitute or other name or (iv) any of NextPage's
designs, symbols, advertisements, products, services, letterhead, business cards
or other means of identification; provided, however, that notwithstanding any of
the foregoing provisions, NextPage may use, apply for and register any trademark
that is derivative of, or related to, the Trademarks (but specifically excluding
the registration of any trademark that contains the "Folio" name, or the use of
any Trademark in the name of NextPage or any successor entity, without
OPEN MARKET's prior written consent, in OPEN MARKET's sole discretion), and
OPEN MARKET agrees to cooperate with NextPage in any such registration, subject
to NextPage's obligation to license back any such trademark to OPEN MARKET for
the term of this Agreement and, in the event that the Section 9.3 purchase
option is not exercised by NextPage, to assign to OPEN MARKET all such interim
trademarks promptly following the termination of this Agreement. In addition,
NextPage shall, at OPEN MARKET's request and expense, assist OPEN MARKET by
executing documents or otherwise as OPEN MARKET reasonably may request, in order
to register any Trademark.
2.4 No Patent License. Nothing contained herein shall be deemed or
-----------------
otherwise construed as a license, either express or implied, or right under any
OPEN MARKET patent, whether or not the exercise of any license or right granted
pursuant to this Agreement necessarily employs as an invention any existing or
later issued patent of Open Market. Notwithstanding the foregoing, OPEN MARKET
agrees that NextPage and its sublicensees, end user customers, resellers,
distributors and any successor corporation, shall have the right to exercise the
respective licenses and other rights granted to them pursuant to this Agreement,
subject to the applicable restrictions and limitations contained herein.
If NextPage elects to exercise the option granted in Section 9.3, the parties
shall discuss whether additional rights relative to OPEN MARKET's patents will
be necessary, in which case both parties agree to negotiate, in good faith, fair
and reasonable terms and conditions for the same. In any event, OPEN MARKET
hereby covenants and agrees not to assert against NextPage, or its successors or
permitted assigns, or its sublicensees, end-user customers, resellers or
distributors, any claims for infringement of any OPEN MARKET patent or patent
rights by NextPage, or its successors or permitted assigns, or its sublicensees,
end-user customers, resellers, or distributors during the term hereof, solely to
the extent necessary to protect NextPage's full exercise of the licenses granted
in Sections 2.1 and 2.2, or at any time after the exercise of the Section 9.3
purchase option subject to the rights, terms and conditions to be agreed upon in
the contemplated asset purchase agreement (which covenant not to sue shall be
assignable pursuant to Section 17.1).
2.5 Order Processing. In consideration of NextPage's payment of the
----------------
applicable royalties and fees set forth in Section 9 below, OPEN MARKET shall
provide NextPage with master copies of
6
<PAGE>
the Folio Products and OPEN MARKET Commerce Products (collectively, the
"Software") and NextPage shall be authorized to duplicate and distribute the
Software to its customers. The OPEN MARKET Commerce Products shall be designated
for use in certain licensed end-user categories listed in Exhibit 2.6, which
shall include Development, Corporate, Commerce Service Provider, Niche Commerce
Service Provider, Cold-Spare Back-Up and Hot Spare Back-Up.
The foregoing duplication and distribution rights shall be subject to the
following terms and conditions and shall apply to the Software generally unless
otherwise expressly provided:
(a) NextPage shall receive on a timely basis all upgrades and updates to
the Software master copies and one (1) copy of the respective documentation
shall be provided to NextPage by OPEN MARKET. NextPage may purchase additional
copies of the Documentation at OPEN MARKET's applicable standard pricing unless
otherwise mutually agreed.
(b) Each applicable licensed end-user category applicable to the
OPEN MARKET Commerce Products shall be subject to the standard license use
limitations listed in Exhibit 2.6.
(c) Under no circumstances shall any third parties be authorized to
duplicate Software, unless otherwise expressly permitted by OPEN MARKET in
writing or in the applicable standard end-user license agreement (e.g., back-up
copies).
(d) If NextPage distributes a quantity of Software licenses to customers
such that more than the applicable guaranteed minimum royalties (with respect to
the Folio Products) or the initial order amounts (with respect to the OPEN
MARKET Commerce Products) are due OPEN MARKET, NextPage shall promptly notify
OPEN MARKET in writing within thirty (30) business days and commence payment of
applicable amounts due for such Software in accordance with subsection (f)
below. For the avoidance of doubt, the parties acknowledge and agree that
NextPage shall pay OPEN MARKET the foregoing royalties and fees based on the
structure in Exhibit 9 regardless of the fee charged by NextPage to its
customers.
(e) NextPage shall provide reports to OPEN MARKET of all such OPEN MARKET
Commerce Products distributions to customers in accordance with subsection (f)
below.
(f) Within sixty (60) calendar days after the end of each calendar
quarter, NextPage shall furnish OPEN MARKET with a report for such quarter
listing all OPEN MARKET Commerce Products provided to all customers, including
at least the following information: customer name and address; and type of
OPEN MARKET Commerce Products and site of installation. Such reports shall
contain such additional detail and be in such form as reasonably may be
specified by OPEN MARKET from time to time. Within sixty (60) calendar days
after the end of each calendar quarter,
7
<PAGE>
NextPage shall also furnish OPEN MARKET with a report from its independent
certified public accountant indicating that NextPage is maintaining financial
and customer records and reflecting the amount of the license revenues received
that quarter from the licensing of Folio Products. After such time as the
Software license fees equal the applicable guaranteed minimum royalties (with
respect to the Folio Products) or the initial order amounts (with respect to the
OPEN MARKET Commerce Products), payment of the applicable royalties and license
fees, as appropriate, shall accompany each quarterly report.
(g) NextPage shall maintain accurate and complete records of each
transaction or dealing involving the Software, including all invoicing and
payment records and information for the term of this Agreement. OPEN MARKET, or
its designated independent certified public accountant, shall have the right,
upon two (2) weeks prior written notice and during normal business hours, to
inspect such records relating to the Software transactions and dealings entered
into by NextPage during the term of this Agreement. Audits may not be conducted
more frequently than every twelve (12) months.
2.6 OPEN MARKET Optional Reseller Rights. OPEN MARKET may request during
------------------------------------
the term of this Agreement by written notice to NextPage to be granted non-
exclusive, worldwide reseller rights for the Folio Products (as the same may be
modified by NextPage) on terms no less favorable than those provided to other
similarly situated resellers of the Folio Products, which request shall be
subject to NextPage's prior written consent in its sole discretion. Any such
reseller arrangement shall be subject to the terms and conditions of NextPage's
standard form of reseller agreement, under mutually agreed terms, including
without limitation applicable territory and market segment restrictions.
OPEN MARKET will not be permitted to distribute the Folio Products in source
code form to any third party without NextPage's prior written approval, which
approval may be withheld for any reason.
3. ASSIGNMENT OF FOLIO CUSTOMERS AND DISTRIBUTORS
----------------------------------------------
3.1 Folio Customers. OPEN MARKET will use reasonable best efforts to
---------------
assign all of its end-user Folio Product licenses and the related support and
maintenance agreements to NextPage as of the Effective Closing Date for the term
of this Agreement, subject to the Transition Plan described in Section 5.1 below
to be mutually agreed to by the parties as soon as possible. Except as may be
otherwise mutually agreed pursuant to Section 2.6 above, OPEN MARKET will not
sell, or offer to sell, any Folio Products to end-users or any other third party
after the Effective Closing Date. NextPage will assume the licenses and the
related support and maintenance agreements assigned to it by OPEN MARKET as of
the Effective Closing Date, and upon the Effective Closing Date NextPage will
receive all benefits (including without limitation the right to receive all
accounts receivable earned after the Effective Closing Date under such
agreements, and the right to audit all receivables payable under such agreements
and to collect and retain any disparities due thereunder) and perform all
8
<PAGE>
obligations and assume all liabilities and benefits thereunder. With respect to
any such agreements that OPEN MARKET is unable to assign to NextPage,
OPEN MARKET and NextPage shall exercise their reasonable best efforts to provide
NextPage with the benefits and related obligations that are the functional
equivalent thereof.
3.2 Folio Distributors. OPEN MARKET will use reasonable best efforts to
------------------
assign to NextPage and NextPage will assume, as of the Effective Closing Date
for the term of this Agreement, all agreements with the Folio Distributors
(collectively, the "Folio Distributor Agreements"). Upon the Effective Closing
Date, NextPage will receive all benefits (including without limitation the right
to receive all accounts receivable earned after the Effective Closing Date under
such agreements, and the right to audit all receivables payable under such
agreements and to collect and retain any disparities due thereunder) and perform
all obligations and assume all liabilities and benefits under the Folio
Distributor Agreements which it assumes, and will cooperate with OPEN MARKET in
seeking to maintain amicable relations with and a transfer to NextPage of all
OPEN MARKET non-assignable obligations with all Folio Distributors, if any, in
those cases where NextPage does not immediately assume the Folio Distributor
Agreements. With respect to any agreement or contract rights that OPEN MARKET
is unable to assign to NextPage, OPEN MARKET and NextPage shall exercise their
reasonable best efforts to provide NextPage with the benefits and related
obligations that are the functional equivalent thereof.
9
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
4. FOLIO EMPLOYEES AND FACILITIES
------------------------------
4.1 Folio Employees. OPEN MARKET will authorize NextPage to offer
---------------
employment, on a permanent or temporary basis, to Folio personnel currently
employed by OPEN MARKET who are experienced in the design, sale and support of
the Folio Products and who, prior to the Effective Closing Date, are selected by
NextPage. OPEN MARKET shall share information regarding the Folio employees in
order to assist NextPage and OPEN MARKET in determining which employees are
candidates for hire by NextPage. Such cooperation will include but not be
limited to (i) designing retention incentives for the Folio employees which
NextPage wishes to employ and (ii) contributing up to a maximum of [**], which,
with the exception of [**] will be matched by an equal contribution from
NextPage to be allocated by mutual agreement prior to offers to any employee as
retention incentive compensation for the Folio employees which NextPage wishes
to employ and who have committed to remain employees for a minimum period of six
(6) months from the Effective Closing Date. Upon any such hiring by NextPage,
OPEN MARKET by written notice to such employees will release such employees from
their existing obligations to OPEN MARKET of non-disclosure with respect to the
Folio Products licensed hereunder; provided, however, that all other applicable
non-disclosure obligations of such employees for the benefit of Folio
Corporation and OPEN MARKET will remain in full force and effect.
4.2 Folio Facilities. OPEN MARKET will retain all rights, title and
----------------
ownership interest in the Folio building facility located in Provo, Utah and all
related real property and personal property located in Provo (the "Folio
Facility"). The parties may elect to enter into a rental or leasing
relationship for all or part of the Folio Facility under which NextPage will
lease all or part of the Folio Facility from OPEN MARKET for an initial term of
fifteen (15) months, with monthly renewal options subject to mutual written
agreement of the parties.. In addition to the foregoing, if NextPage elects to
exercise the option granted under Section 9.3, OPEN MARKET also shall provide
NextPage with the option to purchase all or part of the personal property
located at the Folio Facility, which second option NextPage will be required to
exercise by written notice to OPEN MARKET within five (5) business days of said
first option exercise date. The essential terms and conditions for the
foregoing lease and option arrangements shall be set forth in Exhibit 4.2,
including without limitation a monthly lease rate for the entire Folio Facility
of $85,000.00 per month commencing on July 1, 1999 and ending on September 30,
1999, $22,500.00 per month for the year period beginning October 1, 1999, and
ending September 30, 2000, and $85,000 per month for each month thereafter.
10
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
5. TRANSITION PERIOD; JOINT DEVELOPMENT ACTIVITIES.
-----------------------------------------------
5.1 Transition and Post-Transition Support.
--------------------------------------
(a) Both parties will cooperate as reasonably required promptly to develop
a plan for the joint support of the Folio Product end users and Folio
Distributors during a reasonable, but limited, period of transition from OPEN
MARKET to NextPage, at no charge to NextPage. Each of the parties will prepare,
as part of the foregoing Transition Plan, certain items, including but not
limited to an individual transition plan for all large customers, a transition
plan for support and maintenance for all Folio Product customers and Folio
Distributors, a Folio Product upgrade plan and a communications plan and
procedures. The parties each agree to use reasonable efforts to minimize the
duration of the Transition Period (currently estimated by the parties to be
approximately three months), and each acknowledges that the length of the
Transition Period may be related to the number of Folio employees that are hired
by NextPage and the Folio employees retained by OPEN MARKET, as well as the
assignability of contracts. Upon the expiration of the Transition Period, OPEN
MARKET shall have no direct support, maintenance or services obligations to
customers for the Folio Products or OPEN MARKET Commerce Products distributed by
NextPage, except as the parties hereafter may otherwise agree in writing.
As of the Effective Closing Date, OPEN MARKET will transfer to NextPage the
following fees to account for certain on-going support and consulting benefits
and obligations arising under certain Folio Customer agreements to cover
applicable costs of such Folio Customers in accordance with the following
schedule:
If the Effective Date is June 9, 1999: [**]
(b) By the Effective Closing Date, NextPage shall elect either (i) to have
OPEN MARKET provide NextPage's customers directly with all support and
maintenance for the OPEN MARKET Commerce Products in accordance with OPEN
MARKET's standard terms and conditions for end-user maintenance and support
agreements, and to receive a 10% finders fee for all such referrals of
maintenance and support agreements to OPEN MARKET, or (ii) to itself be
responsible for providing customers with the primary maintenance and support
services for the OPEN MARKET Commerce Products, including without limitation the
installation of the applicable software if required by customer, the training of
customer personnel in the use of the applicable software, and the provision of
primary maintenance and support relating to the applicable software, subject to
OPEN MARKET's obligation to provide backup support and maintenance services to
NextPage, pursuant to Exhibit 5.1.
11
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5.2 OPEN MARKET Deliverables. OPEN MARKET will deliver to NextPage copies
------------------------
of all engineering plans, diagnostics, specifications and all other written and
electronic code, documentation and other materials (in such available format as
NextPage may require) that OPEN MARKET possesses which constitute and support
the Folio Products, all software in source code form included in the Folio
Products (except non-assignable source or object code proprietary to third party
licensors, if any), and all export licenses, copyrights, trademarks, service
marks, and domain name registrations, and all other documents evidencing the
proprietary and other legal rights included in and related to the Folio Products
reasonably required for NextPage's exercise of its license rights and its
successful distribution of the Folio Products. All such materials will be
delivered to NextPage not later than the Effective Date. Such materials,
including all copies and reproductions made by NextPage, remain the property of
OPEN MARKET and, unless NextPage elects to exercise the option granted under
Section 9.3, must be promptly returned to OPEN MARKET upon the expiration or
termination of this Agreement.
5.3 Joint Development and Training Activities. The parties shall
-----------------------------------------
establish an advisory Steering Committee, which may meet by mutual consent on a
quarterly basis or more frequently if reasonably required during the term of
this Agreement in order to enable OPEN MARKET (i) to provide input and, if
required, resources to NextPage for product planning and future development of
the Folio Products, (ii) to provide resources for the joint development and
integration of the Folio Products with the OPEN MARKET Commerce Products, (iii)
to provide marketing assistance to NextPage for the distribution of the Folio
Products as may be reasonably required, and (iv) to provide training for the
Folio Products and OPEN MARKET Commerce Products to NextPage personnel at OPEN
MARKET's standard rates as may be reasonably required. Each party shall
designate a primary contact person through whom all communications regarding
this Agreement may be directed.
5.4 Relationship Management. Each party shall designate a relationship
-----------------------
manager to coordinate on day-to-day issues regarding support of OPEN MARKET
Commerce Product customer accounts and other related matters through December
31, 2000. The parties may elect to continue the foregoing activities by mutual
written agreement after the foregoing expiration date.
6. REPRESENTATIONS AND WARRANTIES
------------------------------
6.1 As of the Effective Closing Date, OPEN MARKET represents and warrants
to NextPage as follows:
(a) Organization and Authority. Open Market, Inc. is a corporation duly
--------------------------
organized, validly existing and in good standing under the laws of Delaware, and
Folio Corporation is a corporation duly organized, validly existing and in good
standing under the laws of Utah. Each of Open Market, Inc.
12
<PAGE>
and Folio Corporation has the corporate power and authority to own its property
and to carry on its business as now being conducted by it and each is duly
qualified to transact business as a foreign corporation in each jurisdiction
where such qualification is necessary. OPEN MARKET has the corporate power and
authority to execute, deliver and perform its obligations under this Agreement.
(b) Due Authorization. The execution, delivery and performance by
-----------------
OPEN MARKET of this Agreement have been duly authorized by all requisite
corporate proceedings. OPEN MARKET has duly executed and delivered this
Agreement and this Agreement constitutes a valid and binding agreement
enforceable against OPEN MARKET in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, and similar laws of general application
affecting the rights and relief of creditors and secured parties and to the
further extent that the availability of the remedies of specific performance and
injunctive relief and other equitable remedies is subject to the discretion of
the court before which any proceeding therefor may be brought.
OPEN MARKET has furnished to NextPage true and correct copies of Folio
Corporation's Certificate of Incorporation and By-laws, each as amended and in
effect on the Effective Date.
(c) No Conflict With Other Agreements. The execution, delivery and
---------------------------------
performance by OPEN MARKET of this Agreement do not require the consent,
approval, or notice of or to any government entity or any other third party.
The execution, delivery and performance by OPEN MARKET of this Agreement do not
and will not conflict with or result in a breach of the terms, conditions, or
provisions of, or give rise to a right of termination or constitute a default
under, or result in any violation of (i) its Certificate of Incorporation or By-
laws, (ii) any mortgage or other material agreement or instrument to which it is
a party, (iii) any order, judgment or decree binding on it or any of its
property, or (iv) any applicable law, rule, or regulation to which OPEN MARKET
or any of its respective property and assets are subject, or (v) any material
license, waiver or permit currently held by OPEN MARKET, or (vi) any of the end-
user or distributor agreements referenced in Sections 3.1 and 3.2. OPEN MARKET
shall exercise best efforts to obtain the assignment of all end-user and
distributor agreements referenced in Sections 3.1 and 3.2 that are material,
individually and in the aggregate, to the Folio Products.
(d) Compliance with Agreements. OPEN MARKET is not in breach of any of the
--------------------------
material terms and conditions (nor, to the best of OPEN MARKET's knowledge, is
any third party in breach or threatening to terminate), and OPEN MARKET has
performed all accrued obligations under, the Folio Product end-user licenses and
the Folio Distributor Agreements referenced in Sections 3.1 and 3.2, and all
third party technology licenses to OPEN MARKET, and such agreements are in full
force and effect. The agreements referenced in Sections 3.1 and 3.2 are the only
revenue bearing agreements or understandings (written or otherwise) relating to
the Folio Products.
13
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The export licenses referenced in Section 5.2 represent all of the licenses
obtained by OPEN MARKET in connection with the Folio Products and currently
necessary for the export of the Folio Products, not including the countries
identified by the U.S. Department of Commerce from time to time to which export
is not allowed.
(e) Actions Pending; Compliance With Law. Except as disclosed in
------------------------------------
Schedule 6.1(e), there is no action, suit or proceeding pending or, to the
knowledge of OPEN MARKET, threatened, against OPEN MARKET before any court,
arbitrator or government body, agency or official, which without limitation
(i) questions the validity of any of the transactions contemplated in this
Agreement, or (ii) would, if adversely determined, have a material adverse
effect on the business, financial position or results of operations of
OPEN MARKET and its consolidated subsidiaries, taken as a whole, including Folio
Corporation, (iii) relates to any of the Folio Products or (iv) would have a
material adverse impact on Licensee's ability to exercise the license rights
granted under this Agreement. OPEN MARKET is in full compliance with all
federal, state, and local laws, statutes, regulations, and ordinances relating
in any way to the Folio Products. Without limiting the generality of the
foregoing sentence, OPEN MARKET warrants that it has filed all tax returns it is
required to file and has paid all taxes payable in connection with the Folio
Products.
(f) Intellectual Property. Schedule 6.1(f) sets out a complete list of
---------------------
all patents, copyrights, domain names, and other intellectual property,
including but not limited to all intellectual property embodied in the Folio
Products, and any and all related items necessary for Licensee to enjoy the
benefits of the license rights granted under this Agreement, and a complete list
of all licenses pursuant to which OPEN MARKET is authorized to use intellectual
property owned by a third party. Except as disclosed in Schedule 6.1(f),
OPEN MARKET warrants (i) that it owns the Folio Products, including all patents,
copyrights, trade secrets, and other intellectual property embodied therein,
(ii) that it has all rights in the OPEN MARKET Commerce Products and the Folio
Products necessary to grant the rights and licenses granted hereunder, including
all rights under applicable copyrights, trade secrets, patents, trademarks,
third party technology licenses, and other applicable proprietary rights, free
and clear of all liens or encumbrances and free from all claims and demands of
third parties, (iii) that neither the Folio Products nor the OPEN MARKET
Commerce Products infringe, nor will the license rights granted NextPage
hereunder infringe, any third party copyright, trade secret, trademark, U.S.
patent (or, to OPEN MARKET's best knowledge, any foreign patent), or any other
third party proprietary right, (iv) that there are no impending, threatened or
pending infringement actions of any third party patent, copyright, trade secret,
trademark or other third party proprietary right concerning the Folio Products
and the OPEN MARKET Commerce Products, (v), to the best of OPEN MARKET's
knowledge, there are no infringements by any third party of any intellectual
property relating to the Folio Products or the OPEN MARKET Commerce Products,
and (vi) that there are no claims pending, or, to the best of OPEN MARKET's
knowledge, threatened, challenging the ownership, validity, or enforceability of
any intellectual property relating to the Folio Products or the OPEN MARKET
14
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Commerce Products. OPEN MARKET has not granted any exclusive licenses to any
person in connection with the Folio Products or, within the Business Segment,
the OPEN MARKET Commerce Products. No former or present employee, officer, or
director of OPEN MARKET holds any right, title or interest, directly or
indirectly, in any intellectual property used in the Folio Products. Except as
set forth in Schedule 6.1(f), all computer software embodied in the Folio
Products was either developed by (i) employees of OPEN MARKET within the scope
of their employment, or (ii) third parties as "works made for hire", as that
term is defined under the U.S. copyright laws, or (iii) assigned works pursuant
to written agreements.
(g) Folio Product Warranties. OPEN MARKET warrants to NextPage that the
------------------------
Folio Products, shall perform in all material respects in accordance with their
respective then-current documentation for a period of ninety (90) days after the
Effective Closing Date. OPEN MARKET shall have no liability with respect to any
failure of the Folio Products to perform as warranted under this Section 6.1(g)
if such failure results from any changes or modifications made to the Folio
Products by NextPage or any third party. This warranty is made solely to
NextPage and NextPage shall be solely responsible for any warranty to, or claims
by, end-users of the Folio Products, subdistributors or any other third parties.
(h) OPEN MARKET Commerce Product Warranties. OPEN MARKET warrants to
---------------------------------------
NextPage that the OPEN MARKET Commerce Products, shall perform in all material
respects in accordance with their respective then-current documentation for a
period of ninety (90) days after the date of any sale thereof. OPEN MARKET
shall have no liability with respect to any failure of the OPEN MARKET Commerce
Products to perform as warranted under this Section 6.1(h) if such failure
results from any changes or modifications made to the OPEN MARKET Commerce
Products by NextPage or any third party. This warranty is made solely to
NextPage and NextPage shall be solely responsible for any warranty to, or claims
by, end-users of the OPEN MARKET Commerce Products, subdistributors or any other
third parties.
(i) Warranty Remedies. NextPage's exclusive remedy and OPEN MARKET's sole
-----------------
obligation under the warranties set forth in Section 6.1(g) and 6.1(h) shall be
for OPEN MARKET to provide telephone assistance and to use reasonable best
efforts to promptly correct any material failure of the applicable products to
perform as warranted, or to provide work around, if such failure is reported to
OPEN MARKET within the above warranty period and NextPage, if necessary, at OPEN
MARKET's request, provides OPEN MARKET with reasonably sufficient information
(which may include access to NextPage's computer system for use of NextPage's
copy(ies) of the Software by OPEN MARKET) to reproduce the defect in question.
(j) Limitations; Remedies. OPEN MARKET's entire liability and NextPage's
---------------------
exclusive remedy as to defects, performance or nonperformance of the Folio
Products and OPEN MARKET
15
<PAGE>
Commerce Products under 6.1(g) and (h) shall be the warranties and remedies as
set forth in Section 6.1(i), regardless of the theory of claim or form of
action, except for any instances of fraud or intentional wrongdoing. THE ABOVE
ARE THE ONLY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, THAT ARE MADE BY
OPEN MARKET AND OPEN MARKET DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. OPEN MARKET DOES NOT WARRANT THAT USE OF THE APPLICABLE
SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. NO ORAL OR WRITTEN INFORMATION OR
ADVICE GIVEN BY OPEN MARKET, ITS AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR
IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES IN THIS AGREEMENT.
(k) Financial Statements. Attached as Schedule 6.1(k) are consolidated
--------------------
balance sheets of OPEN MARKET as of December 31, 1998 and March 31, 1999 (all
such financial statements referred to herein as the "Financial Statements").
The Financial Statements have been prepared in accordance with GAAP consistently
applied during the periods involved. The Financial Statements are complete and
correct in all material respects and fairly present the financial condition of
OPEN MARKET and the Folio Products as of such dates and the results of
operations for the periods then ended. There is no liability or obligation of
any kind, whether accrued, absolute, fixed or contingent, relating to the Folio
Products that is not disclosed, reflected, or reserved against in the Financial
Statements and clearly identified as pertaining to the Folio Products, except
such liabilities or obligations incurred in the ordinary course of business,
consistent with past practices.
(l) Proprietary Information and Inventions. To the best of OPEN MARKET's
--------------------------------------
knowledge, none of the current or former officers, directors, shareholders, or
employees of OPEN MARKET is in violation of his or her obligations to OPEN
MARKET (contractual or otherwise) relating to confidential information of the
Folio Products or any intellectual property embodied in the Folio Products, nor
is OPEN MARKET aware of any facts or circumstances that would lead a prudent
manager to investigate and become aware of any such violation.
(m) Contracts and Commitments. Schedule 6.1(m) lists the thirty (30)
-------------------------
largest dollar-volume contracts referenced in Sections 3.1 and 3.2 and all other
material contracts and commitments relating to the Folio Products. OPEN MARKET
is not in material breach of any material contract with any third party, and to
the best of OPEN MARKET's knowledge, no party to any such contract is in
material breach.
(n) Customers. Except as disclosed in Schedule 6.1(n), since December 31,
---------
1998, there has not been any material adverse change in the business
relationships of OPEN MARKET with any of its customers, and OPEN MARKET is not
aware that any customer or customers representing a
16
<PAGE>
material amount of the Folio Customer base intends to cease doing business with
OPEN MARKET or materially alter the amount of business they or any of them
presently is doing in connection with the Folio Customer base.
(o) Sufficiency of Licenses and Assignments. The licenses granted under
---------------------------------------
this Agreement and the contracts being assigned to NextPage in connection
herewith, are sufficient to enable NextPage to market, distribute and sell the
Folio Products and to enable NextPage to receive the intended benefits of such
license grants as provided under this Agreement.
(p) Full Disclosure. No representation or warranty by OPEN MARKET in this
---------------
Agreement and no statement contained in any document or schedule furnished by
OPEN MARKET to NextPage or its representatives in connection with the
transactions contemplated by this Agreement contains any untrue statement of
material fact or omits to state any material fact necessary in order to make the
statements herein or therein, in light of the circumstances under which they
were made, not misleading.
(q) Affiliate Transactions. OPEN MARKET has not entered into any
----------------------
transaction for the provision of any services or the sale of any goods, or
affecting any intellectual property embodied in the Folio Products, with any
officer, director, shareholder, employee or affiliate of OPEN MARKET that was
not negotiated at arms-length or for fair market value, or which impairs the
value or limits the implementation of the license rights granted NextPage
hereunder.
6.2 As of the Effective Closing Date NextPage represents and warrants to
OPEN MARKET as follows:
(a) Organization and Authority. NextPage is a limited liability company
--------------------------
duly organized, validly existing and in good standing under the laws of Utah,
and has the power to own its property and to carry on its business as now being
conducted by it. NextPage has the power and authority to execute, deliver and
perform its obligations under this Agreement.
(b) Due Authorization. The execution, delivery and performance by
-----------------
NextPage of this Agreement have been duly authorized by all requisite
proceedings. NextPage has duly executed and delivered this Agreement and this
Agreement constitutes a valid and binding agreement enforceable against NextPage
in accordance with its terms, subject to bankruptcy, insolvency, reorganization,
and similar laws of general application affecting the rights and relief of
creditors and secured parties and to the further extent that the availability of
the remedies of specific performance and injunctive relief and other equitable
remedies is subject to the discretion of the court before which any proceeding
therefor may be brought. NextPage has furnished to OPEN MARKET true and correct
copies of its Articles of Organization, as amended and in effect on the
Effective Date.
17
<PAGE>
(c) No Conflict With Other Agreements. The execution, delivery and
---------------------------------
performance by NextPage of this Agreement do not and will not conflict with or
result in a breach of the terms, conditions or provisions of, or give rise to a
right of termination or constitute a default under, or result in any violation
of (i) its Articles of Organization or Operating Agreement, (ii) any mortgage or
other material agreement or instrument to which it is a party, (iii) any order,
judgment or decree binding on it or any of its property, or (iv) any applicable
law, rule or regulation to which NextPage or any of its respective property and
assets are subject, or any material license, waiver or permit currently held by
NextPage.
(d) Actions Pending; Compliance With Law. Except as otherwise disclosed
------------------------------------
in writing to OPEN MARKET, there is no action, suit or proceeding pending or, to
the knowledge of NextPage, threatened, against NextPage before any court,
arbitrator or government body, agency or official, which (i) questions the
validity of any of the transactions contemplated in this Agreement or
(ii) would, if adversely determined, have a material adverse effect on the
business, financial position or results of operations of NextPage and its
consolidated subsidiaries, taken as a whole.
(e) Government Contracts. The Folio Products and Open Market Commerce
--------------------
Products are provided with restricted and limited rights for purposes of
government contracting and subcontracting. NextPage shall ensure that the
rights granted by it or any subdistributor to any agency of the U.S. Government
or U.S. Government subcontractor hereunder shall be subject to restrictions as
set forth in FAR 52.227-19 or DFARS 252.227-7013(c)(1) or successor regulations.
NextPage and its subdistributors shall include all appropriate restricted and
limited rights legends on any Folio Product or Open Market Commerce Product so
licensed hereunder.
(f) Compliance with Laws. NextPage shall comply with all applicable laws,
--------------------
rules and regulations in its performance of this Agreement. In particular,
NextPage shall not export or re-export any Folio Product, OPEN MARKET Commerce
Product or any portion thereof, directly or indirectly, to any country outside
of the U.S. except as permitted by relevant U.S. laws and regulations, including
without limitation the U.S. Export Administration Act.
7. OPEN MARKET COVENANTS
---------------------
7.1 Trademark Maintenance; Intellectual Property Matters. During the term
----------------------------------------------------
of this Agreement, OPEN MARKET shall use reasonable best efforts to maintain its
existing trademark registrations and registration applications relating to the
Folio Products and to preserve and protect all of its intellectual property
rights relating to the Folio Products. OPEN MARKET will comply with NextPage's
reasonable requests at NextPage's expense relating to all trademarks and other
intellectual property covered by the exclusive licenses set out in this
Agreement.
18
<PAGE>
[Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.]
7.2 Promotional Materials. OPEN MARKET shall provide NextPage, at no cost
---------------------
to NextPage, such promotional materials with respect to the applicable Software
products as OPEN MARKET generally makes available to its distributors, including
without limitation technical specifications, prices, drawings, advertisements
and demonstration products, and NextPage may reproduce such materials as
reasonably required, including without limitation on its website(s), provided
that all copyright, trademark and other property makings are reproduced. Such
materials, including all copies and reproductions made by NextPage, remain the
property of OPEN MARKET and, except insofar as they are distributed by NextPage
in the course of performance of NextPage's duties under this Agreement, must be
promptly returned to OPEN MARKET upon the expiration or termination of this
Agreement.
8. NextPage COVENANTS
------------------
8.1 Marketing, Promotional and Development Activities. During the term of
-------------------------------------------------
this Agreement, NextPage shall use commercially reasonable efforts to market,
promote and develop the Folio Products. NextPage shall advertise the OPEN MARKET
Commerce Products in appropriate advertising media. NextPage shall maintain a
professional marketing organization for the promotion of the software products
and sufficient qualified personnel to provide installation, maintenance,
technical support, and training for customers.
8.2 Quarterly Financial Reports. Within sixty (60) days after the end of
---------------------------
each calendar quarter during the term of this Agreement, NextPage shall furnish
OPEN MARKET a report from its independent certified public accountant indicating
whether NextPage's cash balance has dropped below [**] during the term of this
Agreement. If NextPage's cash balance has dropped below such amount, the parties
shall designate senior executives to discuss the situation and mutually agree on
appropriate remedial actions, including without limitation a reasonable cure
period under which NextPage may seek to obtain additional funding in a mutually
agreed amount. If the parties fail to agree on the foregoing actions or if
NextPage is unable to reasonably cure the situation in a manner reasonably
acceptable to OPEN MARKET, OPEN MARKET may elect to terminate this Agreement
upon written notice and, if OPEN MARKET so elects, the provisions of Section 9.3
(i)-(v) shall apply.
8.3 Financial Commitments. Prior to the Effective Closing Date, NextPage
---------------------
shall provide OPEN MARKET with written evidence of funding commitments from
investors to NextPage totaling at least Thirteen Million Dollars ($13,000,000)
in a form reasonably satisfactory to OPEN MARKET. The parties acknowledge and
agree that upon any breach of the foregoing covenant under this Section 8.3,
OPEN MARKET may elect in its sole discretion to terminate this Agreement and the
licenses granted hereunder upon written notice on July 1, 1999, without any
liability to OPEN MARKET and NextPage, and, if OPEN MARKET so elects, the
provisions of Section 9.3 (i)-(v) shall apply.
19
<PAGE>
[Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.]
9. FEES AND PAYMENT
----------------
9.1 Royalties. In consideration of the exclusive license and distribution
---------
rights granted by OPEN MARKET, NextPage will pay royalties to OPEN MARKET under
royalty rates (covering guaranteed minimum royalties and any applicable upside)
set forth in Exhibit 9 with annual guaranteed minimum royalties of Four Million
Six Hundred Sixty-Six Thousand Six Hundred Sixty-Six Dollars ($4,666,666) per
year, payable in quarterly installments of One Million One Hundred Sixty-Six
Thousand Six Hundred Sixty-Six Dollars ($1,166,666) each, in advance, for a term
of three (3) years following the Effective Date, for a total of Fourteen Million
Dollars ($14,000,000) in guaranteed minimum royalty payments, with the first
payment due on or before June 30, 1999. If over any quarter during the term,
NextPage exceeds the foregoing guaranteed minimum royalty amounts, OPEN MARKET
shall waive payment of such quarterly excess royalty amounts up to an aggregate
amount not to exceed [**] over the term of this Agreement. The guaranteed
minimum royalty payments are [**] in the form attached hereto (which remains in
full force and effect), and such guaranty rights are exercisable by OPEN MARKET
solely at its option; provided, however, that, subject to OPEN MARKET's prior
review and reasonable consent, OPEN MARKET shall allow [**] at any time [**]
equal to or greater than [**] who is willing to [**] on terms similar in all
material respects [**] and, in the event of a merger or acquisition of NextPage,
shall [**] if the entity or entities acquiring NextPage or into which it is
being merged have a demonstrated financial worth [**]
9.2 License Support and Maintenance Fees. NextPage shall also pay
------------------------------------
OPEN MARKET Three Million Dollars ($3,000,000) in non-refundable license fees
(plus any applicable support and maintenance fees pursuant to Exhibit 5.1) for
the initial licenses of the applicable OPEN MARKET Commerce Products under
discount rates set forth in Exhibit 9, with a Two Million Dollar ($2,000,000)
payment due and payable on or before June 29, 1999, and a One Million Dollar
($1,000,000) payment due and payable on September 30, 1999 . The foregoing fees
shall be in consideration of the right granted to NextPage to sell and
distribute licenses and support and maintenance agreements for said OPEN MARKET
Commerce Products to third parties hereafter, all of which revenues shall be
retained by NextPage. License fees for additional licenses of the OPEN MARKET
Commerce Products by NextPage shall be determined in accordance with the
discount rates established in Exhibit 9 in accordance with the terms and
conditions in Section 2.6.
9.3 Option to Purchase. In addition, on the third anniversary of the
------------------
Effective Closing Date, NextPage shall have the option to obtain the
unconditional transfer and assignment of all rights, title and interests in and
to (a) the Folio Products and (b) all or part, in NextPage's sole discretion, of
Folio's
20
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
personal property in Provo, Utah, which option may be exercised by written
notice to OPEN MARKET within five (5) business days before said anniversary
date. If NextPage elects to exercise this option, NextPage shall make an
additional payment to OPEN MARKET in the form of a one-time payment on the third
anniversary of the Effective Date, payable within ninety (90) days thereafter,
in an amount equal to [**] for all of the Folio Products, and an additional
payment for all or such part of Folio's personal property located in Provo, Utah
as NextPage elects to purchase in an amount equal to the fair market value of
the same, and the parties shall execute an asset purchase agreement and bill of
sale with all customary representations, warranties, covenants and indemnities
as may be mutually agreed by the parties. If NextPage does not elect to exercise
this option, (i) this Agreement will automatically terminate and NextPage's
license rights shall immediately cease, subject to NextPage's right to receive
all previously earned accounts receivable from its sales of Folio Products and
OPEN MARKET's Products and service agreements sold by NextPage hereafter,
(ii) NextPage will not be entitled to receive any of the foregoing rights with
respect to the Folio Products, (iii) NextPage will promptly return to OPEN
MARKET all software products, documentation and other materials received from
OPEN MARKET, including without limitation those listed in Section 5.2 above and
the items listed under (v) below, (iv) NextPage shall provide OPEN MARKET with
benefits equivalent to those undertaken by OPEN MARKET on behalf of NextPage
under Sections 3.1, 3.2 and 4.1 above, (v) OPEN MARKET shall continue to retain
all rights, title and interests in and to the Folio Products, including all
enhancements, extensions, modifications or derivative works of the Folio
Products made by NextPage, unless otherwise agreed in writing by the parties
hereafter, and (vi) NextPage shall retain all rights, titles and interests in
and to any and all new products, inventions, technology and software developed
by it that are unrelated to the Business Segment, either in whole or in part
(the "NextPage Products"), and which do not constitute enhancements, extensions,
modifications or derivative works of the Folio Products made for purposes of
marketing, selling or distributing the NextPage Products to the Business
Segment, either through direct or indirect channels, including but not limited
to OEMs or permitted assignees pursuant to Section 2.1. In the event that
NextPage does not elect to exercise the option set forth hereinabove, the
parties may agree to enter into a non-exclusive license and distribution
agreement for the Folio Products and the OPEN MARKET Commerce products under
mutually agreed terms and conditions.
Nothing in this Agreement shall constitute a sale or transfer of OPEN MARKET
assets, products or related technology to NextPage except as otherwise expressly
provided under the option granted under this Section 9.3.
21
<PAGE>
9.4 Payments by Wire Transfer. Payments by NextPage pursuant to this
-------------------------
Section 9 will be made by wire transfer to an OPEN MARKET account designated by
OPEN MARKET to NextPage on the applicable date of payment, or as may be
otherwise specified by OPEN MARKET in writing.
9.5 Late Payments. If any payment is not made within thirty (30) days of
-------------
the due date thereof, such payment shall bear interest at the rate of one
percent (1%) per month, or the highest legal rate, whichever is less, commencing
as of the due date until fully paid. Failure to make any payment when due under
this Agreement shall constitute a material breach.
9.6 Taxes. All prices quoted to NextPage in connection with this
-----
Agreement are exclusive of all government excise, sales, service, use,
occupational, or like taxes and, accordingly, are subject to an increase equal
in amount to any tax OPEN MARKET may be required to collect or pay upon the
licensing, delivery or installation of the software products marketed hereunder.
NextPage is responsible for payment of any taxes resulting from or imposed upon
this Agreement or the copies of the applicable software products sold by
NextPage, except taxes based on OPEN MARKET's net income.
IN NO EVENT SHALL NEXTPAGE BE ENTITLED TO RECEIVE REFUNDS OF ANY FEES, ROYALTIES
OR PAYMENTS PAID TO OPEN MARKET PURSUANT TO SUBSECTIONS 9.1 - 9.3 ABOVE;
PROVIDED, HOWEVER, THAT NEXTPAGE RETAINS THE INDEPENDENT RIGHT TO FILE SUIT
AGAINST OPEN MARKET FOR ANY DAMAGES ARISING FROM ANY INSTANCES OF FRAUD OR
INTENTIONAL WRONGDOING OR ANY UNCURED BREACH OF ANY MATERIAL WARRANTY BY OPEN
MARKET HEREUNDER.
10. LIMITATIONS OF LIABILITY
------------------------
10.1 Total Liability. EXCEPT FOR THE LIABILITY OF OPEN MARKET ARISING FROM
---------------
ANY INDEMNIFICATION OBLIGATION UNDER THIS AGREEMENT OR ANY INTENTIONAL BREACH BY
EITHER PARTY OF ITS OBLIGATIONS UNDER SECTION 12, IN NO EVENT SHALL THE
AGGREGATE LIABILITY OF EITHER PARTY FOR ANY MATTER ARISING OUT OF THE SUBJECT
MATTER OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED AN
AMOUNT EQUAL TO THE AMOUNTS ACTUALLY RECEIVED BY OPEN MARKET PURSUANT TO
SECTIONS 9.1 AND 9.2 PRIOR TO THE DATE GIVING RISE TO SUCH LIABILITY, EXCEPT FOR
INSTANCES OF GROSS NEGLIGENCE, FRAUD OR OTHER INTENTIONAL WRONGDOING.
10.2 Exclusion of Damages. EXCEPT FOR THE LIABILITY OF EITHER PARTY
--------------------
ARISING FROM ANY INDEMNIFICATION OBLIGATION UNDER THIS Agreement OR
22
<PAGE>
ANY INTENTIONAL BREACH OF ITS OBLIGATIONS UNDER SECTION 12, NEITHER PARTY WILL
BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, EXCEPT FOR INSTANCES OF GROSS
NEGLIGENCE, FRAUD OR OTHER INTENTIONAL WRONGDOING.
10.3 Failure of Essential Purpose. The parties have agreed that the
----------------------------
limitations specified in this Section 10 will survive and apply even if any
limited remedy specified in this Agreement is found to have failed of its
essential purpose.
11. INDEMNIFICATION
---------------
11.1 Infringement. In the event of any claim or allegation against
------------
NextPage of infringement or misappropriation of any copyright, trade secret,
trademark, U.S. patent or other third party proprietary right by reason of the
use, copying or distribution by NextPage of the Folio Products or Open Market
Commerce Products (not attributable to any modifications to the same made by
NextPage hereafter) as permitted hereunder, OPEN MARKET will indemnify, defend
and hold NextPage harmless from any and all damages, losses, liabilities, costs
and expenses (including reasonable attorneys' fees) arising out of or related to
any such claim or allegation. OPEN MARKET shall have the sole and exclusive
authority to defend and/or settle any such claim or action, provided that OPEN
MARKET shall keep NextPage informed of, and shall consult with, any independent
attorneys appointed by NextPage at NextPage's own expense regarding the progress
of such litigation; and provided further that OPEN MARKET will not settle any
such claim without NextPage's consent, if such settlement would materially
adversely affect NextPage's rights under this Agreement or if such settlement
involves a Folio Product or any intellectual property embodied therein.
11.2 Remedies. If the use, copying or distribution of any Folio Product or
--------
Open Market Commerce Product by NextPage has become, or in OPEN MARKET's opinion
is likely to become, the subject of any claim of infringement, OPEN MARKET may,
at its option and expense, promptly, (i) procure for NextPage the right to
continue using the infringing product as set forth hereunder, (ii) either
replace or modify the infringing product to make it non-infringing, (iii)
substitute an equivalent of the infringing product, or (iv) refund to NextPage
all fees paid by NextPage for such infringing product and pay NextPage the
balance of all damages it suffers and expenses and fees it incurs as a result of
such actual or threatened infringement.
23
<PAGE>
11.3 Other Third Party Claims.
-------------------------
(a) OPEN MARKET Indemnification. In the event of any claim or allegation
---------------------------
against NextPage by a Folio Customer or Folio Distributor (except any claim
based on NextPage's material breach of this Agreement, negligence or intentional
misconduct) arising from the negligence or intentional misconduct of OPEN MARKET
either (i) prior to the Effective Closing Date, (ii) as a result of any material
obligation not disclosed to NextPage prior to the Effective Closing Date or
(iii) in connection with the Folio Customers or the Folio Distributors either
before or after the Effective Closing Date, OPEN MARKET will, at its expense,
indemnify, defend and hold NextPage harmless from any and all damages, losses,
liabilities, costs and expenses (including reasonable attorneys' fees) arising
out of any such claim or allegation. OPEN MARKET shall have the sole and
exclusive authority to defend and/or settle any such claim or action, provided
that OPEN MARKET shall keep NextPage informed of, and shall consult with, any
independent attorneys appointed by NextPage at NextPage's own expense regarding
the progress of such litigation; and provided further that OPEN MARKET will not
settle any such claim without NextPage's consent, if such settlement would
materially adversely effect NextPage's rights under this Agreement.
(b) NextPage Indemnification. In the event of any claim or allegation
------------------------
against OPEN MARKET by a Folio Customer or Folio Distributor (including without
limitation those arising out of a Folio Distributor Agreement) arising after the
Effective Closing Date, NextPage will, at its expense, indemnify, defend and
hold OPEN MARKET harmless from any and all damages, losses, liabilities, costs
and expenses (including reasonable attorneys' fees) arising out of any such
claim or allegation, except regarding OPEN MARKET's material breach of this
Agreement, negligence or intentional misconduct. NextPage shall have the sole
and exclusive authority to defend and/or settle any such claim or action,
provided that NextPage shall keep OPEN MARKET informed of, and shall consult
with, any independent attorneys appointed by OPEN MARKET at OPEN MARKET's own
expense regarding the progress of such litigation; and provided further that
NextPage will not settle any such claim without OPEN MARKET's consent, if such
settlement would materially adversely effect OPEN MARKET's rights under this
Agreement.
11.4 Limitation of Indemnification. OPEN MARKET shall have no liability or
-----------------------------
obligation hereunder with respect to any infringement claim if such infringement
is caused solely by (i) use of any Folio Product or Open Market Commerce Product
by NextPage or its customers in an application or environment other than as
specified in OPEN MARKET's current documentation for such product or as
contemplated under this Agreement; (ii) modification of any Folio Product or
Open Market Commerce Product by NextPage or any third party or the combination,
operation or use of any Folio Product or Open Market Commerce Product with other
product(s) not supplied by OPEN MARKET where the Folio Product or Open Market
Commerce Product would not by itself be infringing.
24
<PAGE>
11.5 Cross-Indemnification By NextPage or OPEN MARKET to Indemnify
-------------------------------------------------------------
NextPage. Except where OPEN MARKET is obligated to indemnify NextPage under
- --------
Section 11.1 or Section 11.3, and without limiting any other obligation of
NextPage to indemnify OPEN MARKET hereunder, or any obligation of OPEN MARKET to
indemnify NextPage hereunder, NextPage shall indemnify, defend and hold OPEN
MARKET harmless from any and all claims, damages, losses, liabilities, costs and
expenses (including reasonable attorneys' fees) arising out of or in connection
with NextPage's use or distribution of the Folio Products or OPEN MARKET
Commerce Products, including but not limited to any modifications, enhancements
or other changes made by NextPage to the Folio Products or OPEN MARKET Commerce
Products (or any component thereof) following delivery to NextPage, unless
arising from OPEN MARKET's material breach of this Agreement, negligence or
intentional wrongdoing; and provided further that NextPage will not settle any
such claim without OPEN MARKET's consent, if such settlement would materially
adversely effect OPEN MARKET's rights under this Agreement. NextPage shall have
the sole and exclusive authority to defend any such claim or action, provided
that NextPage shall keep OPEN MARKET informed of, and shall consult with any
independent attorneys appointed by OPEN MARKET at OPEN MARKET's own expense,
regarding the progress of such litigation.
SUBJECT TO SECTION 10 ABOVE, THIS SECTION 11 STATES EACH PARTY'S ENTIRE
LIABILITY AND OBLIGATION, AND EXCLUSIVE REMEDY WHETHER STATUTORY, CONTRACTUAL,
EXPRESS, IMPLIED OR OTHERWISE, FOR THIRD PARTY CLAIMS.
11.6 Third Party Infringement. If either party has knowledge of or
------------------------
believes that any of the intellectual property rights in the Folio Products are
being infringed by a third party, the party having such knowledge or belief
shall notify the other party in writing within (30) days, which notice shall set
forth the facts of such infringement in reasonable detail. NextPage shall have
the right, but not the obligation, to initiate suit for infringement of the
intellectual property rights in the Folio Products. In the event NextPage
elects not to initiate suit, OPEN MARKET shall have the right to initiate suit
for infringement. Any award or recovery as a result of a suit or claim for
infringement shall be retained by the party which has initiated and paid for
such litigation, unless and to the extent that the parties hereafter may agree
otherwise in writing. OPEN MARKET and NextPage will cooperate in any such
litigation including, without limitation, the exchange of information.
25
<PAGE>
12. OWNERSHIP AND TRADE SECRETS; CONFIDENTIALITY
--------------------------------------------
12.1 OPEN MARKET Ownership Rights. Except for the licenses granted
----------------------------
hereunder, and subject to Section 9.3, all rights, title and interests,
including without limitation all intellectual property rights, in and to the
Folio Products and the OPEN MARKET Commerce Products, including but not limited
to all translations into any language, copies, alterations, enhancements,
extensions, modifications, derivative works or other works relating to any of
the Folio Products made by OPEN MARKET or NextPage (collectively, the "Works")
are retained by OPEN MARKET, unless otherwise agreed in writing by the parties
hereafter regarding any particular Work(s). NextPage shall use commercially
reasonable efforts to ensure that OPEN MARKET's copyright and trademark in the
Folio products is acknowledged in a manner that will not have any material
adverse impact on the protection of OPEN MARKET's proprietary rights.
Every license agreement pursuant to which such Folio Products are provided
to third parties shall prohibit reverse assembly, decompilation, or other means
of converting object to source code. All of the Works shall, to the maximum
extent allowed by applicable law, be (i) governed by US copyright law and
(ii) deemed derivative works and/or "works made for hire" for OPEN MARKET.
OPEN MARKET holds and shall retain all rights that vest in any Work as a
derivative work, a "work made for hire", or as part of a collective work or
compilation, except as the parties hereafter may agree otherwise in writing as
to any particular Work(s). Otherwise, to the extent NextPage for any reason
shall acquire by operation of law or otherwise any rights therein not expressly
granted to it under this Agreement, NextPage hereby irrevocably assigns all such
rights to OPEN MARKET and shall execute all necessary documents to perfect such
assignment to OPEN MARKET under applicable law and NextPage also irrevocably
waives its moral or other authorship rights in the Works; or, if such waiver is
not allowed, irrevocably consents to the infringement of such rights by
OPEN MARKET.
12.2 Confidentiality. NextPage and OPEN MARKET shall each safeguard the
---------------
other's Proprietary Information in the same manner as they safeguard their own
valuable proprietary information. The parties each agree that the terms of this
Agreement, including without limitation the amount of license or other fees
payable hereunder, and the payment terms, shall be deemed Proprietary
Information. Each of the parties acknowledges that the other's Proprietary
Information constitutes such party's valuable proprietary information and trade
secrets. Each of the parties expressly agrees and acknowledges that it is
entering into this Agreement, and providing the other copies of its Proprietary
Information hereunder, in reliance upon the other's foregoing promise of
confidentiality. This Section 12.2 supersedes the Mutual Confidentiality
Agreement dated May 17, 1999 which is hereby, terminated and of no further force
and effect.
12.3 Nondisclosure. For a period of five (5) years neither party shall
-------------
use, disclose, make or have made any copies of the other party's Proprietary
Information in whole or in part, except as
26
<PAGE>
provided herein, without the prior express written authorization of the other
party. The parties shall only disclose or otherwise allow access to the
Proprietary Information of the other party, to employees, consultants or
contractors who (i) have a need to obtain access thereto in order to give effect
to the rights granted to such party under this Agreement, and (ii) are legally
bound to maintain the proprietary and confidential nature of such materials
under a written agreement.
12.4 Exceptions. Any provisions herein concerning non-disclosure and non-
----------
use of confidential information of a party shall not apply to any such
information which (a) is already rightfully known to the other party when
received, (b) is or becomes publicly known through publication or otherwise and
through no wrongful act of the other party, (c) is received from a third party
without similar restriction and without breach of this Agreement, (d) is
approved for release or use by written authorization of the other party, or
(e) is required to be disclosed by law or governmental regulation.
12.5 Publicity. Notwithstanding anything to the contrary in this
---------
Section 12, each party may publicize the existence of the business relationship
established hereunder in connection with any product, promotion or publication
arising under this Agreement, provided that neither party shall make any public
announcements or disclose any of the terms of this Agreement to any third party
without first obtaining the consent of the other party. Notwithstanding anything
to the contrary in this Agreement, OPEN MARKET and NextPage agree that they will
coordinate obtaining confidential treatment for this Agreement to the extent
reasonably possible in connection with any disclosure of this Agreement pursuant
to any SEC filing. The parties will mutually agree upon the content, timing and
other terms of a press release announcing this Agreement.
13. CHANGE IN CONTROL, BANKRUPTCY
-----------------------------
13.1 Change in Control. For the purposes of this Agreement, a "Change of
-----------------
Control" shall be deemed to have occurred if any person or a group (within the
meaning of Rule 13d-5 under the Securities Exchange Act as in effect on the
Effective Closing Date) who are not five percent (5%) or more shareholders of
the applicable party on the Effective Closing Date shall acquire, directly or
indirectly, beneficially or of record, ownership of voting securities
representing more than fifty percent (50%) of the total voting power of one of
the parties hereto.
13.2 Bankruptcy. For purposes of this Agreement, "Bankruptcy" shall mean
----------
the voluntary or involuntary commencement of any proceeding under any law of any
jurisdiction, now or hereafter in force, relating to bankruptcy, insolvency,
dissolution, reorganization, composition, arrangement or otherwise for the
relief of debtors or the readjustment of indebtedness, or the appointment of a
receiver, trustee, custodian or similar official, for a party or the assets of a
party, which is not dismissed within sixty (60) days of filing, with the
exception of Chapter 11 proceedings under the United States Bankruptcy Code.
27
<PAGE>
13.3 OPEN MARKET Remedies.
--------------------
(a) In the event of a bankruptcy of NextPage all provisions of this
Agreement will continue in full force and effect, provided, however, that
OPEN MARKET in its reasonable discretion, may elect by written notice to
NextPage within sixty (60) days of receiving actual or written notice of such
bankruptcy any or all of the following:
(1) to terminate the licenses granted to NextPage under this
Agreement, subject to NextPage's right to receive all previously
earned accounts receivable as provided herein; and
(2) to require NextPage to immediately return or destroy any source
code to the Folio products in NextPage's possession or control.
(b) No termination as provided in Section (a)(1)-(2) above will entitle
NextPage to any refund of fees previously paid pursuant to this Agreement.
13.4 NextPage Remedies.
-----------------
(a) In the event of a any Change of Control of OPEN MARKET, all provisions
of this Agreement will continue in full force and effect; provided, however, in
the event of a Change of Control the acquiring or successor corporation shall
agree to assume all ongoing obligations of OPEN MARKET to NextPage hereunder.
(b) In the event that a trustee in bankruptcy is appointed for OPEN MARKET,
then unless and until such trustee has rejected this Agreement, the trustee
shall, at the written request of NextPage, (a) continue to perform all of the
obligations of OPEN MARKET under this Agreement, or (b) promptly deliver to
NextPage all intellectual property, as defined in Section 101 of Title 11 of the
United States Code, with respect to the Folio Products including source code,
designs, documentation and the like held by the trustee, including any
embodiment of such intellectual property to the extent protected by applicable
nonbankruptcy law, and in either case not interfere with the rights of NextPage
to such intellectual property (including such embodiment) as provided in this
Agreement or any agreement supplementary hereto, provided, however, that
NextPage may use any intellectual property so delivered only subject to the
license terms set forth in Section 2 above.
(c) If the trustee rejects this Agreement, and NextPage elects under
Section 365(n)(1)(B) of Title 11 of the United States Code to retain its rights
under this Agreement, the trustee shall promptly deliver to NextPage all
intellectual property, as defined in Section 101 of Title 11 of the United
States Code, with respect to the Folio Products, including without limitation
all source code, designs,
28
<PAGE>
documentation and the like held by the trustee, including any embodiment of such
intellectual property to the extent protected by applicable nonbankruptcy law,
and not interfere with the rights of NextPage to such intellectual property
(including such embodiment) under this Agreement or any agreement supplementary
hereto, provided, however, that NextPage may use any intellectual property so
delivered only subject to the license terms set forth in Section 2 above.
The parties acknowledge that the provisions of subsections (b) and (c) above
shall not apply if Licensee elects to exercise the option granted under
Section 9.3.
14. TERM; SURVIVAL
--------------
14.1 Term. This Agreement shall commence on the Effective Date and shall
----
continue until the third anniversary thereof, or for such longer term as the
parties may hereafter agree in writing, pursuant to Section 9.3.
14.2 Survival. The rights and obligations contained in Sections 7, 8, 9.3,
--------
10, 11 (for two years after termination of this Agreement), 12, 16, and 17 shall
survive any termination of this Agreement.
15. BREACH AND TERMINATION
----------------------
15.1 Injunctive Relief. OPEN MARKET and NextPage agree that a breach of
-----------------
the provisions of Sections 2.1, 2.2, or 12 of this Agreement would cause
irreparable harm and significant injury to the applicable party which would be
difficult to ascertain and which would not be compensable by damages alone, and
that, accordingly, such party will have the right to enforce those provisions by
injunction, specific performance or other equitable relief without prejudice to
any other rights and remedies it may have for such party's breach of this
Agreement
15.2 License Termination. In the event NextPage commits any material and
-------------------
willful substantial breach or default in the performance of its obligations
pursuant to Sections 2.1, 2.2, 9.1, or 9.2, and fails to provide an acceptable
remedy of such breach or default within thirty (30) days after written notice of
such breach or default from OPEN MARKET, OPEN MARKET by notice to NextPage may
terminate the licenses granted to NextPage under Sections 2.1 and 2.2 hereof.
Such termination shall not effect the rights of end-users who were licensed
prior to such termination. If NextPage is unable to reasonably cure the
situation in a manner reasonably acceptable to OPEN MARKET, OPEN MARKET may
also, in its sole discretion, elect to have the provisions of Section 9.3(i)-(v)
apply.
29
<PAGE>
15.3 Right to Cure. In no event may this Agreement be terminated by either
-------------
party without first providing the party allegedly in material breach hereof with
a formal written notice, detailing the alleged breach or default, and giving
such party at least thirty (30) days after receipt of such written notice to
reasonably cure the same and thus avoid termination hereof.
16. NOTICES. Any notice required or permitted to be given hereunder shall be
-------
given in writing to the party at the address and to the attention of the
individual or title listed on Exhibit 16 of this Agreement by personal delivery,
certified mail, return receipt requested, or by overnight delivery, and the date
upon which such notice is so personally delivered (or if notice is given by
certified mail, return receipt requested, three (3) business days from the date
of sending, or if by overnight delivery, one (1) business day from the date of
sending) shall be deemed to be the date of such notice, irrespective of the date
appearing thereon. The addresses, individuals and/or titles to which notices
shall be sent may be changed by a party upon written notice to the other.
30
<PAGE>
[Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.]
17. GENERAL
-------
17.1 No Assignment. NextPage may assign the license granted in
-------------
Section 2.1(a) to any successor entity controlled by the existing owners of
NextPage without the prior consent of OPEN MARKET. Any other assignment may be
made only subject to OPEN MARKET's prior written consent, which consent shall
not be unreasonably withheld, taking into account only the following factors:
(i) whether the assignee's [**] and [**] are similar to or exceeding [**] as of
the new effective date of this Agreement, and (ii) whether the [**] and
related [**] will be [**]. OPEN MARKET's competitive posture towards the
assignee shall not be considered by OPEN MARKET in making the foregoing
determination. With respect to item (ii) above, the parties further acknowledge
and agree that if an assignee is located in a geographic location outside of
North America or the European Union or if an assignee does not have a software
product distribution channel or software development capability comparable to
that of NextPage as of the Effective Date, the [**] Folio products and related
assets may be [**] by OPEN MARKET. In the event of a Change of Control solely
via a recapitalization of NextPage whereby the controlling interest in NextPage
is transferred to a new investor group, in lieu of the factors listed in (i) and
(ii) above, OPEN MARKET shall take into account only the following factors:
(iii) the person or group has [**] the existing controlling shareholders and
(iv) NextPage continues to retain the licenses and related rights and
obligations granted under this Agreement. In the event of a proposed assignment
that requires OPEN MARKET's consent, NextPage shall provide OPEN MARKET written
information regarding the factors that OPEN MARKET may take into account, as
listed in (i) - (iv) above, in sufficient detail to enable OPEN MARKET to make a
reasonably informed evaluation and OPEN MARKET shall respond to NextPage in
writing within ten (10) business days of receiving such information. Failure of
OPEN MARKET to so respond within the foregoing ten (10) day period shall be
deemed consent. In the event OPEN MARKET withholds consent to any proposed
assignment, it shall provide NextPage within the foregoing ten (10) day period a
detailed written explanation of its reasons for doing so. Further, in the event
that OPEN MARKET withholds its consent and NextPage believes in good faith that
OPEN MARKET's tendered explanation is unreasonable under the parameters set
forth above, NextPage shall provide OPEN MARKET a detailed written explanation
of its concerns and the matter shall be promptly escalated to a senior executive
of each party who shall promptly meet in good faith in order to resolve the
situation. If such escalation proves unsuccessful after the exercise of
reasonable efforts, NextPage may immediately submit the matter to binding
arbitration, which shall be conducted in accordance with the commercial
arbitration rules and expedited procedures of the American Arbitration
Association. The arbitration shall be held in Chicago, Illinois or such other
neutral location as the parties may mutually agree. This Agreement shall be
binding upon and shall inure to the benefit of all permitted assignees
(including by merger and acquisition), except as provided otherwise in this
Agreement.
31
<PAGE>
17.2 Waiver. No modification to this Agreement, nor any waiver of any
------
rights hereunder, shall be effective unless assented to in writing by both
parties and the waiver of any breach or default shall not constitute a waiver of
any other right hereunder or any subsequent breach or default.
17.3 Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17.4 Inconsistency. In the event of any conflict or inconsistency between
-------------
the terms in the body of this Agreement and any Exhibit hereto it is the
intention of the parties that the term in the body of the Agreement shall
govern.
17.5 Relationship. Nothing contained herein shall in any way constitute
------------
any association, partnership, or joint venture between the parties hereto, or be
construed to evidence the intention of the parties to establish any such
relationship.
17.6 Unenforceability. If a court of competent jurisdiction determines
----------------
that any provision of this Agreement is invalid, illegal, or otherwise
unenforceable, such provision shall be enforced as nearly as possible in
accordance with the stated intention of the parties, while the remainder of this
Agreement shall remain in full force and effect and bind the parties according
to its terms. To the extent any provision cannot be enforced in accordance with
the stated intentions of the parties, such provision shall be deemed not to be a
part of this Agreement.
17.7 Choice of Law. The Convention on International Sale of Goods shall
-------------
not apply to this Agreement. This Agreement shall be deemed to have been made
in The Commonwealth of Massachusetts, USA, and shall be governed by and
construed in accordance with the laws of said Commonwealth, exclusive of its
rules governing choice of law and conflict of laws.
17.8 Entire Agreement. This Agreement, including all exhibits hereto, is
----------------
the entire agreement between NextPage and OPEN MARKET with respect to its
subject matter, and supersedes all prior and contemporaneous proposals,
statements and agreements with respect to such subject matter.
32
<PAGE>
Executed as of the date first written above by authorized representatives
of the parties as an instrument under seal.
OPEN MARKET, INC. NEXTPAGE, L.C.
By: /s/ Gary Eichorn By: /s/ Brad Pelo
------------------------------- -----------------------------
[authorized signatory] [authorized signatory]
Title: President & CEO Title: President & CEO
---------------------------- ---------------------------
Date: 9/30/99 Date: 9/30/99
----------------------------- ----------------------------
FOLIO CORPORATION
By: /s/ Gary Eichorn
-------------------------------
[authorized signatory]
Title: President & CEO
----------------------------
Date: 9/30/99
-----------------------------
33
<PAGE>
[Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.]
SCHEDULE 6.1(e)
- ---------------
None
SCHEDULE 6.1(f)
- ---------------
Trademarks: Folio(R), Folio VIEWS(R), Folio(R) Publisher, Folio(R) Integrator,
- ----------
Folio(R) Builder, Folio 4O, Folio SiteDirectorO, Folio Infobase TechnologyO,
SecurePublishO, LivePublishO.
Domain Names: folio.com, securepublish.com, secure-publish.com
- ------------
Third Party Software Agreements: Halcyon, Inc., Inso Corporation, Microsoft,
- -------------------------------
Inc., PKWare, Inc., RSA, Inc., SoftArt, Inc., Linguistic Software Solutions,
Inc.
SCHEDULE 6.1(k)
- ---------------
Please refer to Open Market's Website at http://www.openmarket.com/investor/sec
--------------------------------------
for a copy of the company's 10Q containing the applicable Financial Statements
SCHEDULE 6.1(m)
- ---------------
CONTRACTS:
Distribution Agreements: [**]
- -----------------------
Software Evaluation License Agreement: [**]
- -------------------------------------
International Resellers/Business Partners: [**]
- -----------------------------------------
SCHEDULE 6.1(n)
- ---------------
None
34
<PAGE>
SCHEDULE OF EXHIBITS
--------------------
<TABLE>
<S> <C>
Exhibit 1.12 Business Segment
Exhibit 2.2 End User Agreement Terms and Conditions
Exhibit 2.3 Folio Trademarks and Use Guidelines
Exhibit 2.6 OPEN MARKET Commerce Products Licensed End User Categories
Exhibit 4.2 Folio Facilities
Exhibit 5.1 Open Market Back-Up Support
Exhibit 9 Royalty Rates; Discount Rates; Price Lists
Exhibit 16 Notices
</TABLE>
35
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
EXHIBIT 1.12
------------
BUSINESS SEGMENT
ACCOUNTS
--------
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
36
<PAGE>
EXHIBIT 2.2
-----------
END USER AGREEMENT TERMS AND CONDITIONS
1. LICENSE/RESTRICTIONS ON USE. Customer, after the payment of the applicable
----------------------------
fees, shall be entitled to use the Software only (a) for the purposes expressly
set forth in this Agreement (See Exhibit 2.6 for applicable license use
limitations); (b) in the Territory; and (c) during the term of this Agreement.
The rights granted to Customer herein are restricted to Customer. Customer is
granted no other license for, and no right of ownership or title in, any
Software. Customer's license may not be assigned or otherwise transferred to
any third party.
2. NONDISCLOSURE.
--------------
(a) Customer shall treat the Software and all other items identified as
confidential Licensor information prior to their disclosure to Customer
(collectively, the "Proprietary Information") as confidential and proprietary.
Except as specified in this Agreement, Customer shall not publish or disclose
Proprietary Information to, or use same for the benefit of, any third party.
Customer shall (1) give Proprietary Information at least the same degree of
protection Customer gives its own confidential information, and in no event
shall use less than reasonable care; (2) keep Proprietary Information in a safe
place and monitor access thereto; and (3) allow access to Proprietary
Information on a "need to know" basis only to those of its personnel ( the
"Recipients") who, prior to gaining access to Proprietary Information, have
executed a written legally binding agreement with Customer (the
"Acknowledgments") acknowledging the confidential and proprietary nature of
Proprietary Information and Licensor's rights therein and requiring compliance
with the nondisclosure, non-use and non-competition provisions of this
Agreement. Customer shall ensure, and hereby warrants and represents, that all
Acknowledgments are valid and enforceable against all Recipients, and this
Agreement is valid and enforceable against Customer, anywhere in the Territory.
(b) Customer shall have no obligations of confidentiality with respect to
information that, without breach of any obligation of confidentiality owed to
Licensor, (1) is or subsequently becomes publicly available; (2) became known to
Customer prior to its disclosure by Licensor; (3) became known to Customer from
a source other than Licensor; (4) is independently and entirely developed by
Customer; (5) is used by Customer to enforce Customer's rights, claims or
defenses under this Agreement; or (6) Customer is legally required to disclose,
provided, however, that Customer shall use its best efforts to minimize or
prevent such disclosure to the maximum extent allowed under applicable law and
to secure confidential treatment of the information being disclosed. Customer
agrees that it must have documentary evidence to invoke any of the provisions of
this subparagraph (b).
37
<PAGE>
3. PROPRIETARY RIGHTS.
------------------
(a) Customer acknowledges that Licensor or its suppliers hold and shall
retain the exclusive and entire right, title, and ownership (including
copyright, patent, trade secret, trademark, and know-how rights) anywhere in the
world in (1) the Software and any translations thereof, and (2) Licensor's trade
names and marks and service names and marks depicted on any Software (the
"Trademarks"). Customer shall not use the Trademarks, or any name or mark
similar thereto, whether alone or together with another name or mark, or as part
of, on, or in connection with, Customer's corporate, business, private,
substitute or other name, or on any of Customer's designs, symbols, Software,
services, letterhead, business cards, or other means of identification. Customer
also shall not adopt or attempt to register anywhere in the world any of the
Trademarks, or any name or mark similar thereto.
(b) Except as specified in this Agreement, Customer may not (1) copy,
reproduce, store, or convey any Software in any form or on any medium
whatsoever, including without limitation print, audio, video, software, CD-ROM,
or other electronic form; (2) make any modifications, additions, or enhancements
to any Software; (3) attempt to decompile, reverse-engineer, or extract any
algorithms or hierarchies from any Software; or (4) create any work based on, or
using any idea derived from, any Software. The original, and a copy of the
Software, are the sole and exclusive property of Licensor or its suppliers.
Customer shall reproduce and include all Licensor (or supplier) copyright,
trademark, and other proprietary rights notices on all copies of the Software
and any translation thereof. Customer shall not remove or modify any existing
Licensor or other copyright, trademark or other proprietary rights notice from
the Software or related documentation.
(c) To the maximum extent allowed under applicable law, this agreement
shall be governed by US copyright law, for the purposes of which any copy,
modification, addition, or work made in violation of Paragraph 3(b) shall be
deemed a derivative work or a "work made for hire" for Licensor. Licensor (or
its suppliers) holds and shall retain all rights that may vest at any time in
any of the foregoing items as a derivative work, a "work made for hire", or as
part of a collective work or compilation.
4. WARRANTIES, REMEDIES, DISCLAIMERS.
---------------------------------
(a) WARRANTY. Licensor warrants and represents to Customer that
--------
(i) Licensor has the full right and authority to license the Software hereunder,
(ii) the Software do not, to the best of Licensor's knowledge, infringe upon the
copyright of any third party; and (iii) for a period of [thirty (30) days]
following the date of delivery of each Software to Customer, each Software shall
substantially perform in accordance with its intended purpose and be
substantially free from defect in material and workmanship. The foregoing
warranties shall not apply (A) if the applicable
38
<PAGE>
Software is not used in accordance with its intended purpose; (B) to any
modification or translation of any Software not made by Licensor.
(b) EXCLUSIVE REMEDY. Customer's only remedy, which is in lieu of all
----------------
other remedies, and Licensor's only liability, for breach of the warranties in
Paragraph 4(a)(i) or 4(a)(ii), shall be to obtain for Customer, at Licensor's
sole option and expense, the right to continue to use the infringing or
unauthorized Software, modify the Software so that it becomes non-infringing or
authorized, or replace the infringing Software with a non-infringing or
authorized Software. Customer's only remedy, which is in lieu of all other
remedies, and Licensor's only liability, for breach of the warranties in
Paragraph 4(a)(iii), shall be to replace the non-conforming Software, during
such [thirty (30) day] warranty period and at no charge to Customer, with a
conforming Software. Customer assumes the entire cost of all necessary
servicing, repair or correction of defects after the [thirty (30) day] warranty
period.
(c) DISCLAIMER OF WARRANTY. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN
----------------------
PARAGRAPH (4)(a), NEITHER LICENSOR NOR LICENSOR'S SUPPLIERS MAKES ANY WARRANTY,
EXPRESSED OR IMPLIED, CONCERNING THE SOFTWARE, OR OTHERWISE IN CONNECTION WITH
THIS CUSTOMER AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES
ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER LICENSOR NOR
LICENSOR'S SUPPLIERS WARRANTS THAT THE SOFTWARE WILL MEET CUSTOMER'S
REQUIREMENTS OR THAT THEY WILL BE ACCURATE OR ERROR-FREE. CUSTOMER ASSUMES THE
ENTIRE RISK AS TO THE RESULTS, PERFORMANCE OR USE OF THE SOFTWARE. TO THE
MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, LICENSOR AND LICENSOR'S SUPPLIERS
SHALL HAVE NO LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR DAMAGES RESULTING
FROM THE USE OF, OR ANY ERROR OR OMISSION IN, THE SOFTWARE OR ANY ACTION TAKEN
OR NOT TAKEN BASED ON THE SOFTWARE OR OTHERWISE FROM ANY CAUSE WHATSOEVER, AND
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT (INCLUDING
NEGLIGENCE). IN NO EVENT SHALL LICENSOR OR LICENSOR'S SUPPLIERS BE LIABLE TO
CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF BUSINESS OR OTHER CONSEQUENTIAL,
PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES. TO THE MAXIMUM EXTENT ALLOWED BY
APPLICABLE LAW, CUSTOMER ACKNOWLEDGES THAT (i) LICENSOR AND LICENSOR'S SUPPLIERS
SHALL NOT HAVE ANY LIABILITY TO CUSTOMER UNDER THIS CUSTOMER AGREEMENT OR
OTHERWISE IN CONNECTION WITH THE SOFTWARE, AND (ii) IT SHALL LOOK SOLELY TO
LICENSOR AND NOT TO ANY OF LICENSOR'S SUPPLIERS, CORPORATE AFFILIATES,
SHAREHOLDERS, DIRECTORS OR
39
<PAGE>
EMPLOYEES, FOR ANY SUIT, CLAIM, OR RELIEF IN CONNECTION WITH THE SOFTWARE OR
THIS CUSTOMER AGREEMENT. IN NO EVENT SHALL LICENSOR BE LIABLE TO CUSTOMER FOR
MORE THAN THE FEE PAID BY CUSTOMER TO LICENSOR.
5. THIRD PARTY BENEFICIARY. CUSTOMER ACKNOWLEDGES THAT OPEN MARKET IS AN
-----------------------
EXPRESS INTENDED THIRD-PARTY BENEFICIARY OF THIS CUSTOMER AGREEMENT AND THAT
OPEN MARKET SHALL HAVE THE RIGHT TO BRING ACTION, CLAIM OR SUIT FOR DAMAGES,
INJUNCTIVE OR OTHER RELIEF UPON ANY BREACH BY CUSTOMER OF THIS CUSTOMER
AGREEMENT.
6. COMPLIANCE WITH LAW. Customer shall not, directly or indirectly,
-------------------
(a) export or re-export the Software or any technical information about the
Software to any country for which the United States Export Administration Act
prohibits such export or re-export or requires an export license or other United
States governmental approval, unless the appropriate export license or approval
has been obtained; or (b) take any action that would cause Licensor or Licensor
to be in violation of United States anti-boycott laws under the United States
Export Administration Act or the United States Internal Revenue Code, or any
regulation thereunder, or United States Foreign Corrupt Practices Act.
7. ASSIGNMENT. This Customer Agreement may be assigned by Licensor or
----------
Licensor's designee upon written notice to Customer.
40
<PAGE>
EXHIBIT 2.3
-----------
FOLIO TRADEMARKS AND USE GUIDELINES
OPEN MARKET'S FOLIO TRADEMARKS AND COPYRIGHTS
The following are registered trademarks and trademarks of Open Market. Initial
use of these trademarks must include the (R) or O symbols. You must use these
marks exactly as they appear below.
<TABLE>
<S> <C> <C>
Folio/(R)/ Underhead Technology /(R)/ Folio Infobase TechnologyO
- ------------------------------------------------------------------------------
Folio 4O Folio Views/(R)/ Folio/(R)/ Builder
- ------------------------------------------------------------------------------
Folio/(R)/ Publisher Folio/(R) /Integrator Folio SiteDirectorO
- ------------------------------------------------------------------------------
LivePublishO SecurePublishO
- ------------------------------------------------------------------------------
</TABLE>
The applicable software must also contain a copyright notice of Open Market's
ownership of the applicable application in the application splash screens in a
form consistent with that specified below.
USE GUIDELINES
LOGO ARTWORK FOR COMMERCIAL PUBLICATIONS
[FOLIO LOGO APPEARS HERE]
LOGO USAGE FOR COMMERCIAL PUBLICATIONS
USE OF POWERED BY FOLIO LOGO
COLOR
100 % Black or authorized colors
MEDIA AND PACKAGING PLACEMENT
The Powered by Folio Logo must be prominently displayed on all (1) diskettes,
(2) CD-ROMs, (3) other media used in connection with the distribution of any
Commercial Publication, (4) packaging, (5) advertising, and (6) promotional
materials associated with distributing or marketing each Commercial Publication.
The Powered by Folio Logo must be present on the front and spine of all
packaging. Call (801) 229-6700 if you have any questions regarding the placement
of the Powered by Folio Logo. Publisher may feature its company logo or
Commercial Publication trademark more prominently than the Powered by Folio
Logo, and Publisher may use its own
41
<PAGE>
trademarks, logos and imprints to identify the Commercial Publication.
Additionally, with respect to the serving up of Infobases online with
LivePublish, Publisher shall display the Folio Logo in the document pane in
instances where no active documents from an Infobase are being displayed.
SIZE:
Below is a minimum size that must be present on the media and packaging.
However, publishers can increase the size of the Logo to meet their individual
needs.
Minimum size: Minimum size:
- ------------- -------------
[1" FOLIO LOGO APPEARS HERE] [5/8" FOLIO LOGO APPEARS HERE]
CD ROM Floppy labels
Packaging
Marketing
Literature
LivePublish Doc
Frame
LOGO USAGE FOR FOLIO COMMERCIAL PUBLICATIONS THAT CONTAIN A CUSTOM APPLICATION
COLOR
100 % Black or authorized colors
MEDIA AND PACKAGING PLACEMENT
In addition to the Logo Usage Requirements above, Publisher must prominently
display the Powered by Folio Logo in or on (1) the application splash screen
(the foregoing must also include an Open Market copyright notice in a form
consistent with that specified below), (2) the "About" dialog box, (3) any
online help language distributed with the program, (4) any documentation
distributed with the program, and (5) on all advertising, and promotional
materials associated with distributing or marketing the application. Publisher
may feature its company logo or application trademark more prominently than the
Powered by Folio Logo, and Publisher may use its own trademarks, logos and
imprints to identify the custom application. SIZE
Below is a minimum size that must be present on the splash screen and about
dialog. Publisher can increase the size of the Logo to meet their individual
needs.
Minimum size:
- ---------------
[1" FOLIO LOGO APPEARS HERE]
Splash Screen
About Dialog
COPYRIGHT NOTICES REQUIRED FOR FOLIO COMMERCIAL PUBLICATIONS THAT CONTAIN A
CUSTOM APPLICATION
42
<PAGE>
Publishers who distribute Open Market's Interface Controls and the Indexing and
Retrieval Engine must use the following notice:
Interface Controls & Indexing and Retrieval Engine Licensed Copyright (C)
of NextPage, L.C. All rights reserved.
[RSA ENCRYPTION ENGINE LOGO APPEARS HERE]
Publishers who distribute either the Interface Controls or the Indexing and
Retrieval Engine must use the appropriate notice listed below:
Interface Controls Licensed Copyright (C) of NextPage, L.C. All rights
reserved.
Indexing and Retrieval Engine Licensed Copyright (C) of NextPage, L.C.
All rights reserved.
All Publishers must include the following notice:
Contains security software from RSA Data Security, Inc. Copyright (C) 1998
RSA Data Security, Inc. All rights reserved.
All custom applications built with Folio Components must include the
following RSA Seal in the application splash screen:
Note: The minimum size of the RSA Seal must be 3/4 of an inch or larger.
THIRD-PARTY COPYRIGHT NOTICES FOR FOLIO COMMERCIAL PUBLICATIONS THAT CONTAIN A
CUSTOM APPLICATION (REQUIRED IF TECHNOLOGY IS INCLUDED)
Soft-Art and Linguistic Software Products Notice
- ------------------------------------------------
Indexing and Retrieval Assistant program for dictionaries Copyright (C)
1998. Soft-Art, Inc.(R) All rights reserved.
Dictionaries Copyright (C) 1998 Linguistic Software Products, Inc.(R) All
rights reserved.
Inso Corporation Notice
- -----------------------
ImageStream(R) Graphics & Presentation Filters Copyright (C) 1991-1998
Inso Corporation, All rights reserved.
LOGO VERIFICATION
Per this Agreement, logo usage on packaging artwork associated with the sale of
a Commercial Publication must be verified by Folio Trademark Screening. Please
send copies of the Folio Commercial Publication Authorization Form as referenced
in Exhibit E along with all packaging artwork to NextPage, Attention: Trademark
Screening, 5072 North 300 West, Provo, Utah 84604.
43
<PAGE>
EXHIBIT 2.6
-----------
OPEN MARKET COMMERCE PRODUCT LICENSED END USER CATEGORIES
"Commerce Service Provider" (TRANSACT only) means a business entity or
organization that is granted a license to provide Internet transaction or other
commerce services to Merchants using TRANSACT. The terms for such a license are
set forth in Exhibit B. As used hereunder, a "Merchant" means any third party
----------
licensee of Licensee or an Affiliate who establishes an active account with
Licensee or with an Affiliate in order to provide goods, services, information
or other items to buyers via TRANSACT.
"Niche Commerce Service Provider" (TRANSACT only) is a Commerce Service Provider
whose TRANSACT license is contractually limited either by the number of
Merchants that can be served by the licensed copy of TRANSACT or by geographic
area.
"Corporate" (TRANSACT only) means a business entity or its authorized Business
Line that is granted a license to provide goods, services, information or other
items to buyers via TRANSACT. Under no circumstances shall a Corporate TRANSACT
licensee be authorized to use TRANSACT to provide transaction services as a
Commerce Service Provider to third party Merchants. "Business Line" means any
business activity which Licensee elects to manage under a single Store ID (and
the additional Store IDs as provided below) and which is authorized by Open
Market to use TRANSACT. Such business activities may include without limitation
separate product lines, corporate divisions, fulfillment centers or promotional
campaigns.
Unless Licensee has procured an applicable TRANSACT CSP license, Licensee or a
Business Line will not be authorized to use TRANSACT to provide Internet
transaction or other commerce services as a commerce service provider to third
party merchants. For purposes hereunder, "Store ID" means a number that
identifies a registered store to the TRANSACT administrator, which is provided
to the Business Line when it registers a store and which will appear on the
appropriate registration screens.
Each Business Line is granted the non-exclusive, non-transferable, non-
sublicensable right to the following: one (1) Store ID on Licensee's TRANSACT
and SecureLink software and Documentation as needed. Licensee may make as many
copies of the SecureLink software as are reasonably necessary to support the
Store ID. Support for Business Line licenses is provided by OPEN MARKET at the
Basic or Premier level at OPEN MARKET's standard U.S. list prices for Basic
level and at an agreed discount of Twenty Percent (20%) off of Open Market's
published U.S. Premier level support rates for Premier level.
"Development" means a copy of the applicable Software that is licensed for use
solely for internal development, testing and staging purposes and for no other
purpose.
44
<PAGE>
"Cold Spare Back-up" is a copy of TRANSACT that may be installed but used only
in order to provide emergency back-up to the Production copy of TRANSACT for the
duration of such emergency.
"Hot Spare Back-up" is a copy of TRANSACT that may be installed and kept
running, but used only in order to provide emergency back-up to the Production
copy of TRANSACT for the duration of such emergency.
LiveCommerce License Grant and Applicable Use Limitations (from standard
- ------------------------------------------------------------------------
shrinkwrap license)
- -------------------
GRANT OF LICENSES (Standard End User Terms). Open Market grants Licensee a non-
exclusive, non-transferable license to install and use the Program on dedicated
servers or multiple server configurations owned, controlled or authorized by
Licensee to create and deploy a single LiveCommerce "catalogue" to support no
more than the designated number of unique Catalogue Items listed above for
Licensee's own internal business purposes. A LiveCommerce "catalogue" consists
of the following three (3) databases: a catalogue database, a data import
database and an image database. The base Program consists of three (3)
components: (a) two (2) LiveCommerce development licenses, (b) one (1)
LiveCommerce production license, and (c) the suite of LiveCommerce authoring
tools defined in the Documentation. Each license is comprised of a catalogue
and an "installation" (the set of LiveCommerce application services required to
operate a single LiveCommerce catalogue). Licensee may use the two LiveCommerce
development licenses to create as many instances of a single catalogue as
Licensee reasonably requires; however, Licensee may have only one (1) production
copy of the catalogue at any one time.
Licensee may make a reasonable number of copies of the Program solely for back-
up or archival purposes. Licensee may not reverse-engineer, disassemble, or
decompile the Program nor may Licensee use the Program for competitive analysis
or benchmarking purposes. All LiveCommerce authoring tools provided with the
Program may be used solely for Licensee's own internal business purposes by
authorized Licensee employees. Licensee may copy the Documentation solely for
reference.
CATALOGUE ITEMS: For purposes of this Agreement, "Catalogue Items" means the
- ---------------
number of unique values in the "Items" object class of the catalogue database
and therefore does not include product or category attributes. Catalogue Items
are available in the following packages: Small Catalogue - up to 20,000; Medium
Catalogue - 20,000 - 50,000; and Large Catalogue -50,000+. Licensee must obtain
an additional grant of license of Catalogue Items from Open Market if Licensee
wishes to utilize more than the number of Catalogue Items designated above.
ShopSite License Grant and Applicable Use Limitations (from standard shrinkwrap
- -------------------------------------------------------------------------------
license)
- --------
45
<PAGE>
Grant of License. The ShopSite software and accompanying documentation are being
- ----------------
licensed to you, which means you have the right to use the software only in
accordance with this Agreement. Open Market grants you the right to use the
software in connection with one (1) Licensed Storefront (as defined below) on a
single Internet server or multiple server configuration. The software is
considered in use on an Internet server when it is loaded into temporary memory
or installed into permanent memory. This license is subject to the following
restrictions and limitations:
(a) The term "Licensed Storefront," as used in this Agreement, means the
Internet storefront created and/or maintained by you on an Internet server for
advertising and selling your goods or services as part of a single business or
the goods or services of another person or entity as part of a single business.
A Licensed Storefront may not offer the goods or services of more than one
business or entity.
(b) You will have access to the object code version of the software and are not
entitled to have access to the source code, except as provided in a separate
Master Preferred Escrow Agreement.
(c) This license is valid for only one (1) Licensed Storefront. The software
may not be used in connection with more than one (1) Storefront and may not be
transferred to a different Storefront than the one originally licensed without
Open Market's prior written consent.
(d) Copies. You are authorized to make a reasonable number of copies of the
software for backup or archival purposes, provided that all of Open Market's
copyright notices are included in the copy.
(e) Scope of Use. You may not sublicense or lease the software or any of the
accompanying documentation to any other person except in accordance with the
terms of the License Agreement as amended, but you may use the software to
maintain a Licensed Storefront that is leased to another person or entity. The
software may be used only for advertising and selling goods and services that
you sell in the ordinary course of your business, whether manufactured or
provided by you or third parties, or, if you are maintaining the Licensed
Storefront for another merchant, the software may be used only for advertising
and selling the goods and services of that merchant. Except as specifically
permitted in this Agreement, the software may not be used to process
transactions or data for any other person or entity.
46
<PAGE>
EXHIBIT 4.2
-----------
FOLIO FACILITIES
The "Folio Facilities," as defined in Section 4.2 of the Agreement to include
all real estate, all improvements thereon, and all personal property located
therein, shall be leased by OPEN MARKET to ABSB for the monthly rental sum of
Eighty-Five Thousand Dollars ($85,000.00) per month from July 1, 1999 to
September 30, 1999, Twenty-Two Thousand Five Hundred Dollars ($22,500.00) from
October 1, 1999 to September 30, 2000, with the first payment due on July 1,
1999, subject to such other terms and conditions as will be set forth in a basic
commercial lease agreement to be finalized between OPEN MARKET and ABSB as soon
as possible hereafter.
47
<PAGE>
EXHIBIT 5.1
-----------
OPEN MARKET BACK-UP SUPPORT AND MAINTENANCE
OPEN MARKET shall have no direct support, maintenance or Services obligations to
Customers for the Software distributed by Distributor. OPEN MARKET will provide
Distributor with back-up support and maintenance for the Software in accordance
with the terms and conditions set forth in the Support Obligations listed below.
Such support is conditional upon OPEN Market's receiving payment for annual or
other support charges as set forth in this Exhibit.
Distributor will be responsible for providing Customers with the support,
maintenance and Services set forth in the Support Obligations, including without
limitation: (i) the installation of the Software if required by Customer,
(ii) the training of Customer personnel in the use of the Software, (iii) the
provision of primary support and maintenance relating to the Software and
Services for Customers and other end-users in the Territory.
Definitions.
- -----------
1.1 "Bypass" means a temporary solution or workaround to a problem which
offers acceptable relief.
1.2 "Compatibility" means that the Software can be recompiled and linked
properly on the new release of the Distributor operating system.
1.3 "Documentation" shall mean the existing "Open Market, Inc. " user
manuals and other written materials that relate to the particular
Software, including materials useful for installation, operation, and
maintenance. Documentation shall include maintenance modifications and
enhancements thereto if, when, and to the extent such maintenance
modifications and/or enhancements are delivered to Distributor by
"Open Market, Inc." under this Agreement or under any other agreement
or arrangement between the parties.
1.4 "End-User" shall mean a Customer of Distributor.
1.5 "Fix" means a permanent solution to a problem that may be obtained in
a generally available Release.
1.6 "Maintenance Release" means any modification of a Software product for
which Distributor or OPEN MARKET, in its sole discretion, changes the
second number to
48
<PAGE>
the right of the decimal point in the Software version number, e.g., a
change from version 1.00 to 1.01.
1.7 "Major Release" shall mean a new version of the Software that contains
significantly new functionality or features and is accompanied by a
Major Release bulletin or other notice. Each Major Release shall be
identified solely by the numeral(s) to the left of the decimal point,
with the new Major Release having the larger numeral. For example, for
any given Software product, release 3.0 is a more current version than
release 2.0.
1.8 "Patch" means a solution to a problem which may be obtained prior to
the next Release of the Software.
1.9 "Software" shall mean the computer programs, Documentation and related
information as defined in the Agreement. The term "Software" shall not
include Source Code.
1.10 "Release" means any modification of the Software which becomes
generally available.
1.11 "Minor Release" means any modification of the Software that contains
some features and or fixes. Each Minor Release shall be identified by
the first number to the right of the decimal point in the Software
version number, e.g., a change from version 1.00 to 1.10.
1.12 "Work Around" shall mean a temporary solution that is intended to
alleviate a Customer's particular problem.
1.13 "Educational Services" shall mean the delivery, materials and
scheduling of education courses which are made available by OPEN
MARKET for OPEN MARKET products or services.
1.14 "Consulting Services " shall mean any such service by which OPEN
MARKET offers its' Customers, Distributor or others any assistance
with the development, delivery, installation, configuration, testing,
management, training or advice on it's products or technology for a
fee.
1.15 "Implementation Services" shall mean the service provided by OPEN
MARKET which involves the planning, installation and testing of OPEN
MARKET products.
49
<PAGE>
2. Support Provisions.
------------------
2.1 Levels of Support. Distributor and OPEN MARKET acknowledge that three
(3) levels of support are required.
2.1.1 Level 1 Support. Level 1 (problem verification) handles calls
---------------
requiring a relatively low, but broad degree of product
expertise. Level 1 activities include the following:
. Provide Initial Customer Contact
. Maintain Problem Log
. Provide Problem Description and Definition
. Ensure Continuous Availability
. Manage Remote Connections
. Maintain Customer Configuration Data
. Resolve Software Installation Inquiries and Problems
Remotely
. Provide Appropriate Quality Metrics to Management
. Provide Remote System Administration and Configuration
Assistance
. Attempt Problem Reproduction
2.1.2 Level 2 Support. Level 2 (problem determination and temporary
---------------
fix) requires both broad and in-depth product expertise. Level
2 support has full responsibility for problem trouble-
shooting, and development of avoidance's and workarounds.
Level 2 activities include the following:
. Critical Call Access or as per Contract/Support Plan
. Provide Problem Determination and Verification
. Perform Remote Diagnosis
. Provide Patch to Customer
. Provide Engineering (Level 3) Interface
2.1.3 Level 3 Support. Level 3 requires engineering level technical
---------------
expertise. The Level 3 support organization has complete
ownership of the field release process, and similarly is
responsible for providing timely and accurate product defect
descriptions and resolution plans to Distributor Level 1 and
Level 2 support. Level 3 support activities include the
following:
. Perform Line of Code Fault-Isolation
. 7 x 24 Critical Call Access
50
<PAGE>
. Provide Patches or Resolve to Customer's Satisfaction
. Provide Major, Minor and Patch releases
2.2 Problem Classifications, Hardware/Software.
------------------------------------------
2.2.1 Problem (call) severity will be determined by Distributor,
based upon Distributor's Customer's priority, using the
following as a guideline:
Declared Critical Problem: A "down" situation, whereby a user
-------------------------
is unable to do production work, and a Work-Around is either
not available, or, if available, is unacceptable to
Distributor and/or the user.
Serious Problem: A major function/product is unusable and no
---------------
Work-Around is available, but the user is able to do some
production work.
Moderate Problem: There is a loss of a function or resource
----------------
that does not seriously affect the user's operations or
schedules. Any problem which was originally reported as
Critical or Serious, but has been temporarily solved with a
Work-Around, shall be reduced in severity to Moderate, only if
the customer and Distributor mutually concur.
Minor Problem: Means all other problems with the Software
-------------
other than those falling within the categories above.
2.2.2 Repair/fix criteria.
-------------------
Resolution will be provided by OPEN MARKET in accordance with
the following criteria, and tracked on a case by case basis.
51
<PAGE>
Problem Resolution Criteria
- ---------------------------
Resolution will be provided by OPEN MARKET in accordance with the following
criteria, and tracked on a case by case basis.
<TABLE>
<CAPTION>
Telephone Initial
Severity Response Update Action Target Patch Maint Rel.
-------- -------- ------ ------ ------------ ----------
<S> <C> <C> <C> <C> <C>
Declared 30 minutes, every bus. work As Req. Next
Critical if required day continuously
Event
Serious 1 bus. hour every other ASAP As Req. Next
Event
Moderate/ 4/8 bus. hrs. every week reasonable No As Req.
Minor Event
</TABLE>
Note: Times are calendar/clock times except where stated
2.2.3 Unresolved Critical or Serious Event Procedures.
-----------------------------------------------
Should a Critical or Serious Event not be patched fixed within the 10 day
time frame, OPEN MARKET shall dedicate a full time resource to the
situation until resolved. This resource shall provide Distributor with
detailed fix plan and daily progress updates. This resource will perform
the work required at the most convenient location for resolution
(Distributor, Company, Customer site). If, by the 10th day, OPEN MARKET
cannot identify the source of the problem then OPEN MARKET will supply to
Distributor a clear and comprehensive plan for locating and fixing the
problem . This information may be passed on to the end-user.
3. Distributor Responsibilities.
----------------------------
Distributor shall provide technical support to Customers of those Software
products provided by Distributor. Distributor will provide all Level 1 and
Level 2 Support. By this the parties agree that Distributor will:
3.1 Provide access to telephone and electronic communications for
technical assistance and consultation 24 hours a day 365 days a year
to Distributor's support center.
52
<PAGE>
3.2 Execute diagnostic routines as made available by OPEN MARKET's for
Level 1 and Level 2 support situations in accordance with OPEN
MARKET's instructions as they relate to OPEN MARKET's Software
products, and inform OPEN MARKET of the results of those diagnostics.
3.3 Reasonably verify the existence of a Software product problem and to
determine the conditions under which that problem can be duplicated
prior to submission to OPEN MARKET.
3.4 Identify, define, and report software problems in a manner that will
allow OPEN MARKET to verify, replicate, and correct Software defects.
3.5 Provide direct customer contact for Level 1 and Level 2 of technical
support assistance and act as the front line field support
organization providing technical support directly to their End-User
customers.
3.6 Manage and control problem situations arising at customer sites.
3.7 Distributor will act as the front line field support organization for
Level 3 support and facilitate OPEN MARKET's direct communication with
customer in Level 3 support situation.
3.8 Distributor agrees to be a beta test site for OPEN MARKET Software
products.
3.9 Distributor agrees to provide response, updates, and relief support,
as per Section 2.2.2, to its' customers as the primary interface to
them.
3.10 Distributor agrees to maintain an adequate staff of trained technical
support personnel to service the needs of it's Customers.
3.11 Distributor agrees to participate with OPEN MARKET in a semi-annual
technical support review to ensure Distributor and OPEN MARKET are
meeting their respective Support Obligations as defined herein.
53
<PAGE>
4. OPEN MARKET Responsibilities.
----------------------------
OPEN MARKET intends to supply post-sale technical support to Distributor
for Customers of those Software products provided by Distributor. OPEN
MARKET will provide Level 3 Support Services. By this, the parties agree
that OPEN MARKET will provide the following support to Distributor:
4.1 Provide to Distributor Maintenance Releases, Update Releases and
Discounts on Major Releases of the Software.
4.2 Provide access by Distributor to OPEN MARKET service personnel for
telephone technical assistance as necessary during OPEN MARKET's
Support Center normal business hours via dial up , electronic mail or
web site.
4.3 Provide emergency contact to Distributor for Critical problems
occurring outside of normal work hours. Access will be through an
assigned duty pager to be continuously active outside the periods of
OPEN MARKET's normal business hours.
4.4 Use computerized tracking systems to log and record all requests from
customers for technical assistance.
4.5 On a case by case exception basis, if requested by Distributor,
OPEN MARKET may agree to establish direct support obligations for
individual customer licensed Software, subject to mutually acceptable
terms, including but not limited to, price.
4.6 Provide remedial Software support by providing, a Patch or Bypass
solution to verified problems reported by Distributor according to
Section 2.2.
4.7 Provide prompt shipment of appropriate and available Fix, Patch or
Bypass, and Documentation updates when available.
4.8 Provide Distributor with Software support services for the current
version and the previous version of the Software under the maintenance
agreement. Additionally, the second back level of the applicable
Software will be supported by OPEN MARKET for a period of three (3)
months to allow Distributor time to install the latest product
version.
4.9 OPEN MARKET agrees to provide response, updates, and relief support,
as per Section 2.2.2, to the Distributor.
54
<PAGE>
4.10 OPEN MARKET shall provide emergency on-site support upon mutual
agreement between the parties and only in support of Critical events,
OPEN MARKET personnel shall be available for emergency dispatch to End
User site or Distributor support center for problem correction.
Travel, living and incidental costs incurred due to problems mutually
agreed to have been caused by the product, after all remote problem
resolution has been exhausted by OPEN MARKET, shall be the
responsibility of OPEN MARKET. Travel, living and incidental costs
incurred due to problems mutually agreed not to have been caused by
Defects in the Software shall be the responsibility of Distributor.
4.11 OPEN MARKET agrees to participate with Distributor in a semi-annual
technical support review to ensure OPEN MARKET and Distributor are
meeting their Support Obligations.
4.12 OPEN MARKET agrees to participate with Distributor in a technical
support review to ensure OPEN MARKET and Distributor are meeting their
Support Obligations.
5. Technical Training/Distributor's Support Personnel:
--------------------------------------------------
OPEN MARKET shall make available to Distributor qualified personnel who are
knowledgeable in all aspects of the Software, to instruct and assist
Distributor's personnel with respect to the maintenance and support of the
Software.
OPEN MARKET shall provide training and documentation to Distributor service
personnel with respect to the design, theory, operation, installation,
maintenance and support of the Software.
Training shall consist of either class room instruction or via an on-site
consulting engagement. Class room training shall take place at OPEN
MARKET's training facility during normal business hours and shall commence
during a normally scheduled class. After the training class, Distributor
personnel will get a week hands on work in OPEN MARKET's Support Center.
OPEN MARKET offers several on-site Consulting packages which provide hands
on training of OPEN MARKET products. Consulting packages shall serve as a
substitute for class room instruction. Consulting packages are designed to
be offered on-site. Distributor shall be responsible for the cost of all
Consulting packages at the then current price.
55
<PAGE>
6. Updates, Maintenance releases and Upgrades:
-------------------------------------------
Updates and Maintenance releases will be included under this Support
Obligations. Upgrades will be made available at a discount from the royalty
rate as determined hereunder.
7. Fees:
-----
7.1 Training of Distributor's personnel:
$2,000 / per person a minimum of 2 people trained is required. The fee
includes the Training Class and the week hands on in the OPEN MARKET
Support Center.
Distributor shall be responsible for all travel and living expenses
incurred by its employees in connection with attending said training.
7.2 Annual Support Program Fee:
Access to the above services, by two named Distributor contacts, after
completion of the required OPEN MARKET training course. Each named
contact will have access rights to the above services. Additional
named contacts are charged on a per named contact basis. This service
is designed to provide Distributor's internal development and support
staff the required support during the proposal, design, testing and
implementation of projects.
$15,000 / year for two Distributor contacts* - unlimited access to all
support as outlined in section 4 (*waived for initial year of Annual
Support)
$7,500 / year for each additional Distributor contact - unlimited
access to above services
7.3 Third Level Support Fees:
Forty Percent (40%) of the support fee revenue received by Distributor
from customers for the applicable Software purchased on an annual
basis (commencing upon shipment of the applicable Software) for
ongoing third level support and maintenance services as described
above. This fee includes access to support personnel 7X24 for critical
calls only.
56
<PAGE>
7.4 Pass Through Services:
Distributor may offer to their Customers OPEN MARKET Consulting and
Education Services on a commission basis. Distributor will be paid 5%
of the net Open Market sales.
7.5 OPEN MARKET published Service and Support Pricing is defined as
follows.
Consulting Rates: Standard Rates: $1,500/day, Business Consulting:
$2,000/day Pre-packaged Offerings: per package
Education Services:
Transact Installation and Administration - $2,000 US
Courseware License - per quote
Implementation Services: Implementation of Transact - $1,500/day US
All prices exclude reasonable travel and living expenses which will be
billed at actual price paid.
57
<PAGE>
SCHEDULE A
SECTION I CONTACTS:
Name of Licensee:
Address of Licensee:
Telephone Number:______________ Fax Number:______________ Email
Contact Person(s):
1.______________________________, Telephone:_____________, Email:
2.______________________________, Telephone:_____________, Email:
3.______________________________, Telephone:_____________, Email:
(Premier Only)
Date of License Agreement: _______ / ______ / _________
(Same as Annual Support Agreement)
________________________________________________________________________________
SECTION II. OPEN MARKET SOFTWARE : (List all)
Product:________________________ Revision:______ Annual Support Fee:_________
Product:________________________ Revision:______ Annual Support Fee:_________
Product:________________________ Revision:______ Annual Support Fee:_________
Product:________________________ Revision:______ Annual Support Fee:_________
Product:________________________ Revision:______ Annual Support Fee:_________
(List additional on back of this page)
Total Annual Support Fee:_________
58
<PAGE>
[Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.]
EXHIBIT 9
---------
ROYALTY RATES; DISCOUNT RATES
Folio Product Royalty Rates:
- ----------------------------
[**] of the applicable Folio Product revenues received by ABSB; with an annual
guaranteed minimum royalty of [**] and an annual maximum of [**], for any 12-
month period during the term of this Agreement.
OPEN MARKET Commerce Product Discount Rates:
- --------------------------------------------
[**] off of OPEN MARKET's then-current standard U.S. and International list
prices for the applicable products attached as Schedule A.
59
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Schedule A
<TABLE>
<CAPTION>
ITEM NUMBER LIST List
Item # DESCRIPTION Price/Unit
<S> <C>
CSP TRANSACT
CSP Transact Base License
1 CSP Transact License [**]
Includes all Standard Payment Modules, all Fulfillment Modules, the SecureLink SDK, English
Language Module and the Customer's local language Module (where available)
2 Niche CSP Transact License [**]
Includes one Standard Payment Module, one Fulfillment Module, the SecureLink SDK (for up to
100 merchants), the English Language Module and the Customer's local Language Module (where available)
CSP Transact Standard Payment Modules (Included with CSP License, 1 at no additional charge with NicheCSP)
4 Purchase Order Module License [**]
5 FDC Payment Module License [**]
6 First USA Payment Module License [**]
7 Toronto Dominion Payment Module License [**]
CSP Transact Standard Fulfillment Modules (Included with CSP License, 1 at no additional charge with NicheCSP)
9 Physical Goods Module License [**]
10 Digital Goods Module License [**]
11 Subscriptions Module License [**]
CSP Transact Language Modules (Not Currently Available)
CSP Transact SDKs (internal use only)
12 Payment SDK License [**]
13 Fulfillment SDK License [**]
14 Order Entry SDK License [**]
CSP Transact Optional Software
15 CSP Transact Fax Module License [**]
16 CSP Transact SalesTax Module License* [**]
</TABLE>
* Additional fees of $20/month/state of taxable
presence/merchant apply to all customers purchasing the Sales
Tax Module
60
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<TABLE>
<CAPTION>
ITEM NUMBER LIST List
Item # DESCRIPTION Price/Unit
<S> <C>
CSP Transact Development Licenses
23 CSP Transact Unlimited Development License [**]
CSP Transact Miscellaneous
28 Merchant License Prepay
29 Tier 1a Merchant License/year (up to $30,000 in transaction revenue/year) [**]
30 Tier 1 Merchant License/year (up to $60,000 in transaction revenue/year) [**]
31 Tier 2 Merchant License/year (up to $400,000 in transaction revenue/year) [**]
32 Tier 3 Merchant License/year (up to $2,000,000 in transaction revenue/year) [**]
33 Tier 4 Merchant License/year (over $2,000,000 in transaction revenue/year) [**]
34 Upgrade from Niche to Full CSP [**]
CSP ShopSite (contact Neil Costa for pricing)
35 ShopSite TX License (Express)
36 ShopSite TX License (Lite)
37 ShopSite TX License (Manager)
38 ShopSite TX License (Pro)
39 ShopSite TX License (Express) & Merchant License Bundle
40 ShopSite TX License (Lite) & Merchant License Bundle
41 ShopSite TX License (Manager) & Merchant License Bundle
42 ShopSite TX License (Pro) & Merchant License Bundle
CORPORATE TRANSACT (Modular Pricing)
Corporate Transact Base Licenses
Includes the SecureLink SDK, English Language Module, the customer's local Language Module
(where available), on-site installation services and one seat in Transact Administration Training
43 Base Commerce System: Physical [**]
44 Base Commerce System: Digital [**]
45 Base Commerce System: Subscriptions [**]
Corporate Transact Language Modules (Not Currently Available)
Corporate Transact Capacity Factors
46 Additional Transact "StoreId" (standard = 1) [**]
47 Additional Transact Download Server (standard = 1) [**]
Corporate Transact Recurring Fees
48 Additional subscribers (standard = 5,000) [**]
of subscription value/year
</TABLE>
61
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<TABLE>
<CAPTION>
ITEM NUMBER LIST List
Item # DESCRIPTION Price/Unit
<S> <C>
49 Additional 100,000 transactions/year (standard = 100,000/year) [**] year
Corporate Transact Basic Add-on Modules
50 VAT Module License [**]
51 US/Canada SalesTax Module (TaxWare) License* [**]
* Additional fees of $20/month/state of taxable
presence/merchant apply to all customers purchasing the
SalesTax Module.
52 Fax Module License [**]
Corporate Transact Real-time Credit Card Payment Modules
53 FDC Payment Module License [**]
54 First USA Payment Module License [**]
55 Toronto Dominion Payment Module License [**]
Corporate Transact Advanced Add-on Modules
56 Digital Coupons Module License [**]
57 Advanced Customer Service Module License [**]
58 Microtransactions Module License [**]
59 Customer Registration Module License [**]
Corporate Transact Add-on Fulfillment Modules
60 Physical Goods Module License [**]
61 Digital Goods Module License [**]
62 Subscriptions Module License [**]
Corporate Transact SDKs (internal use only)
63 Payment SDK [**]
64 Fulfillment SDK [**]
65 Order Entry SDK [**]
Corporate Transact Upgrades
66 Upgrade from Corporate License to Niche CSP [**]
67 Upgrade from Corporate License to Full CSP [**]
Corporate Transact Development Licenses
76 Corporate Transact Development License [**]
TRANSACT DOCUMENTS
101 Additional Transact/SecureLink Doc Set [**]
102 Additional Fulfillment API Guide [**]
103 Additional Payment API Guide [**]
LIVE COMMERCE (Modular Pricing)
LiveCommerce Base System and Add-on Modules
</TABLE>
62
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<TABLE>
<CAPTION>
ITEM NUMBER LIST List
Item # DESCRIPTION Price/Unit
<S> <C>
104 LiveCommerce Base Catalog System [**]
Includes one seat in LiveCommerce Training and Quick Start consulting services
105 Personalized Catalog Module License [**]
106 Parametric Catalog Module License [**]
107 LiveCommerce Development License [**]
LiveCommerce Capacity Factors
108 Additional LiveCommerce Catalog Server (standard = 1) [**]
109 Additional 5,000 catalog items (standard = 5,000) [**]
CSP TRANSACT
CSP Transact Base Licenses
1 CSP Transact License [**]
Includes all Standard Payment Modules, all Fulfillment Modules, the SecureLink SDK,
English Language Module and the Customer's local language Module (where available)
2 Niche CSP Transact License [**]
Includes one Standard Payment Module, one Fulfillment Module, the SecureLink SDK
(for up to 100 merchants), the English Language Module and the Customer's local
Language Module (where available)
CSP Transact Standard Payment Modules (Included with CSP License, 1 at no additional charge with
Niche CSP)
4 Purchase Order Module License [**]
5 FDC Payment Module License [**]
6 First USA Payment Module License [**]
7 Toronto Dominion Payment Module License [**]
CSP Transact Standard Fulfillment Modules (Included with CSP license, 1 at no
additional charge with Niche CSP)
9 Physical Goods Module License [**]
10 Digital Goods Module License [**]
11 Subscriptions Module License [**]
CSP Transact Language Modules (Not Currently Available)
CSP Transact SDKs (Internal use only)
12 Payment SDK License [**]
13 Fulfillment SDK License [**]
14 Order Entry SDK License [**]
CSP Transact Optional Software
15 CSP Transact Fax Module License [**]
16 CSP Transact SalesTax Module License [**]
</TABLE>
* Additional fees of $20/month/state of taxable
presence/merchant apply to all customers purchasing the
SalesTax Module.
63
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<TABLE>
<CAPTION>
ITEM NUMBER LIST List
Item # DESCRIPTION Price/Unit
<S> <C>
CSP Transact Development Licenses
23 CSP Transact Unlimited Development License [**]
CSP Transact Miscellaneous
28 Merchant License Prepay [**]
29 Tier 1a Merchant License/year (up to $30,000 in transaction revenue/year) [**]
30 Tier 1 Merchant License/year (up to $60,000 in transaction revenue/year) [**]
31 Tier 2 Merchant License/year (up to $400,000 in transaction revenue/year) [**]
32 Tier 3 Merchant License/year (up to $2,000,000 in transaction revenue/year) [**]
33 Tier 4 Merchant License/year (over $2,000,000 in transaction revenue/year) [**]
34 Upgrade from Niche to Full CSP [**]
CSP ShopSite (contact Neil Costa for pricing)
35 ShopSite TX License (Express)
36 ShopSite TX License (Lite)
37 ShopSite TX License (Manager)
38 ShopSite TX License (Pro)
39 ShopSite TX License (Express) & Merchant License Bundle
40 ShopSite TX License (Lite) & Merchant License Bundle
41 ShopSite TX License (Manager) & Merchant License Bundle
42 ShopSite TX License (Pro) & Merchant License Bundle
CORPORATE TRANSACT
Corporate Transact Base Licenses
Includes the SecureLink SDK, English Language Module, the
customer's local Language Module (where available), on-site installation
services and one seat in Transact Administration Training
43 Base Commerce System: Physical [**]
44 Base Commerce System: Digital [**]
45 Base Commerce System: Subscriptions [**]
Corporate Transact Capacity Factors
46 Additional Transact "StoreId" (standard = 1) [**]
47 Additional Transact Download Server (standard = 1) [**]
Corporate Transact Recurring Fees
48 Additional subscribers (standard = 5,000) [**]
of subscription value/year
49 Additional 100,000 transactions/year (standard = 100,000/year) [**]
Corporate Transact Basic Add-on Modules
50 VAT Module License [**]
51 US/Canada SalesTax Module (TaxWare) License* [**]
* Additional fees of $20/month/state of taxable
presence/merchant apply to all customers purchasing the
SalesTax Module.
52 Fax Module License [**]
</TABLE>
64
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<TABLE>
<CAPTION>
ITEM NUMBER LIST List
Item # DESCRIPTION Price/Unit
<S> <C>
Corporate Transact Real-time Credit Card Payment Modules
53 FDC Payment Module License [**]
54 First USA Payment Module License [**]
55 Toronto Dominion Payment Module License [**]
Corporate Transact Advanced Add-on Modules
56 Digital Coupons Module License [**]
57 Advanced Customer Service Module License [**]
58 Microtransactions Module License [**]
59 Customer Registration Module License [**]
Corporate Transact Add-on Fulfillment Modules
60 Physical Goods Module License [**]
61 Digital Goods Module License [**]
62 Subscriptions Module License [**]
Corporate Transact SDKs (internal use only)
63 Payment SDK [**]
64 Fulfillment SDK [**]
65 Order Entry SDK [**]
Corporate Transact Upgrades
66 Upgrade from Corporate License to Niche CSP [**]
67 Upgrade from Corporate License to Full CSP [**]
Corporate Transact Development Licenses
76 Corporate Transact Development License [**]
TRANSACT DOCUMENTS
101 Additional Transact/SecureLink Doc Set [**]
102 Additional Fulfillment API Guide [**]
103 Additional Payment API Guide [**]
LIVE COMMERCE
LiveCommerce Base System and Add-on Modules
104 LiveCommerce Base Catalog System [**]
Includes one seat in LiveCommerce Training and Quick Start consulting services
105 Personalized Catalog Module License [**]
106 Parametric Catalog Module License [**]
107 LiveCommerce Development License [**]
LiveCommerce Capacity Factors
108 Additional LiveCommerce Catalog Server (standard = 1) [**]
109 Additional 5,000 catalog items (standard = 5,000) [**]
</TABLE>
65
<PAGE>
EXHIBIT 16
----------
NOTICES
1. Send notices to NextPage to:
NextPage, L.C.
Attn: Bradley D. Pelo, President
5072 North 300 West
Provo, UT 84604
With a copy to:
William L. Fillmore, Esquire
Fillmore Belliston & Israelsen, LC
4692 North 300 West, Suite 200
Provo, Utah 84604
2. Send notices to OPEN MARKET to:
Open Market, Inc.
1 Wayside Road
Burlington, MA 01803
Attn: Legal Counsel
66
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 3-MOS 9-MOS
<FISCAL-YEAR-END> DEC-31-1999 DEC-31-1999
<PERIOD-START> JUL-01-1999 JAN-01-1999
<PERIOD-END> SEP-30-1999 SEP-30-1999
<CASH> 0 19,156
<SECURITIES> 0 13,903
<RECEIVABLES> 0 28,277
<ALLOWANCES> 0 3,031
<INVENTORY> 0 0
<CURRENT-ASSETS> 0 63,259
<PP&E> 0 27,320
<DEPRECIATION> 0 14,260
<TOTAL-ASSETS> 0 87,112
<CURRENT-LIABILITIES> 0 30,057
<BONDS> 0 2,720
0 0
0 0
<COMMON> 0 36
<OTHER-SE> 0 54,299
<TOTAL-LIABILITY-AND-EQUITY> 0 87,112
<SALES> 11,078 33,943
<TOTAL-REVENUES> 18,014 52,160
<CGS> 932 2,411
<TOTAL-COSTS> 5,017 14,797
<OTHER-EXPENSES> 14,158 43,639
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> (155) (465)
<INCOME-PRETAX> (1,015) (6,035)
<INCOME-TAX> 71 216
<INCOME-CONTINUING> (1,086) (6,251)
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> (1,086) (6,251)
<EPS-BASIC> (0.03) (0.17)
<EPS-DILUTED> (0.03) (0.17)
</TABLE>
