|
|
|
|
|
|
|
|
|
|
|
|
|
|
Previous: CENTERSPAN COMMUNICATIONS CORP, 10-Q, 2000-08-11 |
Next: CENTERSPAN COMMUNICATIONS CORP, 10-Q, EX-27, 2000-08-11 |
EXHIBIT 10
SOFTWARE DEVELOPMENT AND LICENSE AGREEMENT
THIS SOFTWARE DEVELOPMENT AND LICENSE AGREEMENT ("Agreement"), dated effective August 9, 1999 ("Effective Date"), is by and between INTEL CORPORATION, a Delaware corporation with an office at 2111 NE 25th Avenue, Hillsboro, Oregon ("Intel") and THRUSTMASTER, INC. an Oregon corporation with an office at 7175 NW Evergreen Parkway, #400, Hillsboro, Oregon ("Thrustmaster").
NOW THEREFORE, based on the Recitals and the terms and conditions herein, and for other good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:
In addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:
2
SECTION 2. THRUSTMASTER OBLIGATIONS
3
available, subject to the license restrictions herein. Thrustmaster shall use commercially reasonable efforts to incorporate any suggestions made by Intel in regard to the Licensed Products.
4
5
Licensed Products, (ii) adapting the Intel Software so that the Intel Software Object Code can be used and distributed in conjunction with Licensed Products, (iii) developing the Thrustmaster Software or (iv) providing technical support for the Thrustmaster Software and Licensed Products.
6
SECTION 6. TECHNICAL SUPPORT AND UPDATES
7
INTEL SHALL NOT BE REQUIRED TO PROVIDE ANY MAINTENANCE RELEASES, NEW RELEASES, UPDATES, ENHANCEMENTS OR EXTENSIONS TO THE INTEL SOFTWARE OF ANY KIND OR PROVIDE ANY TECHNICAL SUPPORT FOR THE LICENSED PRODUCTS AND THRUSTMASTER SOFTWARE.
SECTION 7. MARKETING AND PROMOTION
SECTION 8. COPYRIGHTS, ATTRIBUTION, TRADEMARK
SECTION 9. NO WARRANTIES; LIMITED LIABILITY
8
SECTION 10. TERM AND TERMINATION
| 10.3.1 | If Thrustmaster fails to meet any of the distribution milestones set for [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE SEC] as set forth in and reported according to Exhibit C, Intel has the right to terminate this Agreement and the license rights granted to Thrustmaster by Intel in this Agreement pursuant with section 10.4 of this Agreement. |
9
| 10.4.1 | Licenses. The licenses granted by Intel to Thrustmaster and by Thrustmaster to Intel pursuant to Section 4 of this Agreement may only be revoked for uncured material breach of the license terms as provided in this Agreement. Each party reserves the right to verify the other party's compliance with this Agreement and the licenses granted herein by reasonable means, and each party agrees to cooperate with the other in that regard. In the event that a party is in material breach of any of the licenses granted herein, the non-breaching party has the right to terminate all license rights granted to the breaching party herein upon thirty (30) days written notice to the breaching party if the breaching party fails to correct such material breach within the thirty (30) day notice period. For the purpose of this Section 10, however, Thrustmaster shall be deemed to be in uncured material breach of this Agreement and its license rights if Thrustmaster fails to meet the milestones set forth in and reported according to Exhibit C as described in Section 10.3.1. |
| 10.4.2 | If Thrustmaster's license to distribute the Intel Software terminates pursuant to Section 10.1 or Section 10.3, Thrustmaster shall have the right to distribute finished goods inventory of the Licensed Products for ninety (90) days beyond the termination date. |
| 10.4.3 | If Intel terminates this Agreement or any license herein because of Thrustmaster's uncured material breach, Thrustmaster will turn over any Thrustmaster Software pointer, which determines the URL that hosts the multipoint audio conference for end users, to Intel, and hereby assigns and transfers all of its ownership and other rights in the same to Intel. |
| 10.4.4 | Other. Sections 2.9, 4 (except to the extent a license is terminated for uncured material breach as provided in this Agreement), 5, 6.1, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 shall survive any termination or expiration of this Agreement. |
SECTION 11. CONFIDENTIALITY AND NON-DISCLOSURE
10
All notices required or permitted to be given hereunder shall be in writing, shall make reference to this Agreement, and shall be delivered by hand, or dispatched by prepaid nationally recognized overnight air courier or by registered or certified airmail, postage prepaid, addressed as follows:
Such notices shall be deemed served on the earlier of: (i) actual receipt by addressee, (ii) two (2) days after deposit with a nationally recognized overnight air courier or (iii) five (5) days after appropriate mailing. Either party may give written notice of a change of address and, after notice of such change has been received, any notice or request shall thereafter be given to such party at such changed address.
Thrustmaster shall defend, indemnify, and hold Intel harmless from and against any loss, cost, liability, damages and expense (including reasonable attorney fees) arising from any action or claim brought or threatened against Thrustmaster or Intel or their customers alleging that the Thrustmaster Software or any Licensed Product infringes any patent, copyright, trademark, trade secret, or other intellectual property right of any third party provided that Intel (i) promptly notifies Thrustmaster in writing of any such suit or proceeding brought against it, (ii) provides Thrustmaster at its sole discretion with sole control over the defense or settlement of such suit or proceeding, and (iii) provides reasonable information and assistance in the defense and/or settlement of any such claim or action brought against it. Without limiting Thrustmaster's duty to defend and hold Intel harmless, Thrustmaster's indemnity obligation hereunder shall not apply to any successful suit or proceeding brought directly against Intel based solely upon a claim that the Intel Software or a part thereof (except any Thrustmaster modification) alone and not in combination with any other technology or product, constitutes a direct infringement of any United States patent, copyright, trademark, trade secret, or other intellectual property right of any third party; provided that Thrustmaster (i) promptly notifies Intel in writing of any such suit or proceeding if Intel has not itself received notice thereof, (ii) provides Intel at its sole discretion and at its own expense with sole control over the defense or settlement of such suit or proceeding, (iii) provides reasonable information and assistance in the defense and/or settlement of any such claim or action, and (iv) a court of competent jurisdiction (after appropriate appeals have been filed) concludes that Intel's direct actions regarding the Intel Software, or a part thereof (except any Thrustmaster modification), alone and not in combination with any other technology or product constitutes a direct infringement of any United States patent issued prior to the Effective Date, copyright, trademark, trade secret, or other intellectual property right of any third party and that Intel has direct liability to such third party. The exception to Thrustmaster's indemnity obligation in this Section 13 is specifically intended to cover the limited situation where Intel is found by a court of competent jurisdiction to be directly liable to a third party for direct (as opposed to any indirect) infringement and is not in any way intended to otherwise limit Thrustmaster's liability to Intel or to any third party in regard to Licensed Products or any part thereof. Intel shall have no obligation of any kind to defend, indemnify or hold Thrustmaster harmless from any claim brought against Thrustmaster that may implicate the Intel Software, but Intel will provide Thrustmaster reasonable information and assistance in regard to the defense or settlement of any such claim. The parties agree that this Section 13 is consistent with the intent of the indemnity provision in the parties' first agreement relating to multi-point audio.
Neither party shall be liable for any failure to perform due to unforeseen circumstances or causes beyond that party's reasonable control, including, but not limited to, acts of God, war, riot, embargoes, acts of civil or military authorities, delay in delivery by vendors, fire, flood, earthquake, accident, strikes, inability to secure transportation, facilities, fuel, energy, labor or materials. In the event of force
11
majeure, the time for delivery or other performance will be extended for a period equal to the duration of the delay caused thereby.
SECTION 15. ASSIGNMENT, SALE OR TRANSFER
Neither party shall transfer or assign any of its rights under this Agreement to any person except as expressly permitted herein. Any attempt to assign any rights, duties or obligations hereunder without the other party's written consent, which shall not be unreasonably withheld, shall be void.
SECTION 16. RELATIONSHIP OF THE PARTIES
This Agreement shall not be construed to create a partnership, joint venture or other agency relationship between the parties. Neither party hereto will be deemed the agent or legal representative of the other for any purpose whatsoever and each party will act as an independent contractor with regard to the other in its performance under this Agreement. Nothing herein will authorize either party to create any obligation or responsibility whatsoever, express or implied, on behalf of the other or to bind the other in any manner, or to make any representation, commitment or warranty on behalf of the other.
12
Agreement, and consents to the entering of an order for injunctive relief to prevent such a breach or further breach and the entering of an order for specific performance to compel performance of such obligations under this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date first written above
| INTEL CORPORATION | THRUSTMASTER, INC. | |||||
| By: |
|
/s/ D. CRAIG KINNIE |
|
By: |
|
/s/ F.G. HAUSMANN JR. |
| |
|
D. Craig Kinnie Printed Name |
|
|
|
F.G. Hausmann Jr. Printed Name |
| Title: |
|
V.P. Intel |
|
Title: |
|
President and CEO |
| Date: |
|
8/9/99 |
|
Date: |
|
8/9/99 |
13
DESCRIPTION OF SOFTWARE AND DOCUMENTATION
Description
1. Intel® Multi-point Audio Software Component:
Windows* 95 and Windows* 98 compatible software that allows the user, in conjunction with some method to exchange IP addresses, the ability to create and join an internet telephony conference with the user limit to be determined by the container application.
2. Distributed Presence Component:
Windows* 95 and 98 compatible software that allows an application, in conjunction with a Microsoft Internet Locator Service Server, the ability to advertise the presence of one or more local users and to monitor the presence of peers on each local user's peer list.
3. Intel® Launch & Connect Software Component:
Windows* 95 and 98 compatible software that allows a controlling application to dynamically enumerate applications/protocols in common between two endpoints, launch and then automatically connect a selected application/protocol at the two endpoints or to a third party server.
Software
The following components are included in the Software licensed to Thrustmaster hereunder:
The Intel® Multi-point Audio component component will include the following:
The Distributed Presence Component will include the following:
This Intel® Launch & Connect Component will include the following:
14
Description of Licensed Products
Software that provides a meeting and launching capability for the Intel Software.
The Thrustmaster Software may include the following:
15
| Licensed Products Downloads and/or Retail Purchases | ||||
| Date | Cumulative Total |
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE SEC]
* Sign [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE SEC] agreements with ISVs or internet game related sites for distribution of the Licensed Products to on-line gaming users by [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE SEC]
* Sign [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE SEC] total agreements with ISVs or internet game related sites for distribution of the Licensed Products to on-line gaming users by [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE SEC]. Thrustmaster agrees to maintain at least [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE SEC] agreements with ISVs or internet game related sites through [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE SEC].
16
INTEL OPTIMIZER LOGO TRADEMARK LICENSE AGREEMENT
THIS INTEL OPTIMIZER LOGO TRADEMARK LICENSE AGREEMENT ("Agreement") is made by Intel Corporation having offices at ("Intel") and Thrustmaster, Inc., having offices at ("Licensee").
WHEREAS, Intel and Licensee have entered into that certain Software Development and License Agreement dated ("Software License") wherein Intel licensed to Licensee certain multi-point audio remote server software (as defined in the Software License, the "Intel Software") for distribution, including but not limited to distribution with Licensee's PC game controllers and headsets (as defined in the Software License, the "Licensed Products").
WHEREAS, the Software License provides that Thrustmaster shall, at Intel's request, use the Intel Optimizer Logo as set forth in this Agreement in conjunction with distribution of the Intel Software with Licensed Products;
WHEREAS, Intel has a specific Intel Optimizer Logo (as defined below, the "Licensed Logo") that is associated with specific optimized code (as defined below, the "Optimized Code") that is part of the Intel Software; and
WHEREAS, Intel has now requested Thrustmaster to use the Licensed Logo in conjunction with the distribution of the Optimized Code with Licensed Products and Thrustmaster has agreed to do the same;
NOW THEREFORE, in consideration of the mutual covenants and promises contained in this Agreement, and for other good and valuable consideration receipt of which is hereby acknowledged, the parties agree as follows:
1. Definitions.
In addition to the definitions set forth in the Recitals, the following terms have the following meanings:
2. License Grant. Subject to Licensee's full compliance with the terms of this Agreement, Intel hereby grants to Licensee a non-exclusive, non-transferable, royalty-free, revocable license to use the Licensed Marks in connection with Licensed Products solely to indicate that the Licensed Products contain the Optimized Code.
17
3. Product Quality.
4. Proper Usage.
5. Right to Inspect.
18
6. Protection of Interest.
7. DISCLAIMER BY INTEL. INTEL MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND RESPECTING THE INTEL MARKS, INCLUDING THE VALIDITY OF INTEL'S RIGHTS IN THE INTEL MARKS IN ANY COUNTRY, AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES THAT MIGHT OTHERWISE BE IMPLIED BY APPLICABLE LAW.
8. Relationship Between the Parties. No agency, partnership, joint venture, franchise, or employment relationship is created between Intel and Licensee as a result of this Agreement. Neither party is authorized to create any obligation, express or implied, on behalf of the other party.
9. Waiver: The failure of either party to enforce at any time the provisions of this Agreement shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of any party to enforce each and every provision thereafter.
10. Indemnity: Licensee agrees to indemnify, defend, and hold Intel harmless from all loss, cost liability and expense incurred by Intel and any of its subsidiaries or affiliated entities that arise out of a claim concerning Licensee's manufacturing, use or sale of Licensed Products incorporating the Intel Software except as specifically set forth in the Software License and except where such claims are based solely on Licensee's permitted use of the Licensed Marks. Intel agrees to provide Licensee with prompt notice of any such claims and shall provide Licensee with reasonable assistance (at Licensee's expense) in defense or settlement of such claims as set forth in the Software License.
11. LIMITATION OF LIABILITY: NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Term and Termination:
19
13. Assignment: This Agreement shall be binding upon and inure to the benefit of the successor and permitted assignees of the parties hereto. The rights granted to Licensee and Licensee's obligations hereunder are personal. Licensee shall not assign this Agreement or any right or obligation hereunder, whether in conjunction with a change in ownership, merger, acquisition, the sale or transfer of all, or substantially all or any part of Licensee' business or assets or otherwise, either voluntarily, by operation of law, or otherwise, without the prior written consent of Intel, which Intel may give or withhold at its sole discretion. Any such purported assignment or transfer shall be deemed a material breach of this Agreement and shall be null and void.
14. Choice of Law and Jurisdiction: The validity, construction and performance of this Agreement shall be governed by the laws of the State of Delaware and the United States of America, without reference to conflict of laws principles. Any dispute arising out of this Agreement shall be brought in, and the parties consent to personal and exclusive jurisdiction of and venue in, the state and federal courts within Santa Clara County, California.
15. Equitable Relief: Licensee agrees that damages alone would be insufficient to compensate Intel for a breach of this Agreement, acknowledges that irreparable harm would result from a breach of this Agreement, and consents to the entering of an order for injunctive relief to prevent a breach or further breach or any further action which could cause some loss or dilution of Intel's goodwill, reputation, or rights in any Intel Marks, and the entering of an order for specific performance to compel performance of any obligations under this Agreement.
16. Severability: If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination shall not affect the validity of the remaining provisions unless Intel determines at its discretion that the court's determination causes this Agreement to fail in any of its essential purposes.
17. Entire Agreement: This Agreement, together with the Software License, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all proposals, oral or written, all negotiations, conversation, and/or discussions between the parties relating to this Agreement and all past courses of dealing or industry customs. This Agreement may not be modified except in a wiring signed by authorized representative of both parties.
18. Notices. Notices shall be given as set forth in the Software Agreement.
20
IN WITNESS WHEREOF, the parties by their duly authorized representatives, hereby execute this Amendment to the Agreement.
| INTEL CORPORATION | THRUSTMASTER, INC. | |
| Signature |
|
Signature |
| Printed Name |
|
Printed Name |
| Title |
|
Title |
| Date |
|
Date |
21
THE WARRANT EVIDENCED OR CONSTITUTED HEREBY, AND ALL SHARES OF COMMON STOCK ISSUABLE HEREUNDER, HAVE BEEN AND WILL BE ISSUED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT") AND MAY NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED WITHOUT REGISTRATION UNDER THE ACT UNLESS EITHER (i) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED IN CONNECTION WITH SUCH DISPOSITION OR (ii) THE SALE OF SUCH SECURITIES IS MADE PURSUANT TO SECURITIES AND EXCHANGE COMMISSION RULE 144.
WARRANT TO PURCHASE COMMON STOCK OF THRUSTMASTER, INC.
(Subject to Adjustment)
NO.
THIS CERTIFIES THAT, for value received, Intel Corporation, or its permitted registered assigns ("Holder"), is entitled, subject to the terms and conditions of this Warrant, at any time or from time to time after 5:00 p.m. PST December 4, 1998 (the "Effective Date"), and before 5:00 p.m. Pacific Time, five (5) years from the Effective Date (the "Expiration Date"), to purchase from Thrustmaster, Inc. an Oregon corporation (the "Company") Eighty-eight thousand nine hundred and eighty eight (88988) shares of Warrant Stock (as defined in Section 1 below) of the Company at a price per share of Four and thirteen sixteenths dollars (US$413/16) (the "Purchase Price"). Both the number of shares of Warrant Stock purchasable upon exercise of this Warrant and the Purchase Price are subject to adjustment and change as provided herein. This Warrant is issued pursuant to that certain Software Development and License Agreement dated as of the Effective Date between the Company and Holder. This Warrant replaces the warrant issued and delivered to Holder by the Company effective as of August 9, 1999.
As used in this Warrant the following terms shall have the following respective meanings:
"Fair Market Value" of a share of Warrant Stock as of a particular date shall mean: (a) if traded on a securities exchange or the Nasdaq National Market, the Fair Market Value shall be deemed to be the average of the closing prices of the Common Stock of the Company on such exchange or market over the 5 business days ending immediately prior to the applicable date of valuation; (b) if actively traded over-the-counter, the Fair Market Value shall be deemed to be the average of the closing bid prices over the 30-day period ending immediately prior to the applicable date of valuation; and (c) if there is no active public market, the Fair Market Value shall be the value thereof, as agreed upon by the Company and the Holder; provided, however, that if the Company and the Holder cannot agree on such value, such value shall be determined by an independent valuation firm experienced in valuing businesses such as the Company and jointly selected in good faith by the Company and the Holder (with the fees and expenses of the valuation firm paid for by the Company.
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976.
"Registered Holder" shall mean any Holder in whose name this Warrant is registered upon the books and records maintained by the Company.
"Warrant" as used herein, shall include this Warrant and any warrant delivered in substitution or exchange therefor as provided herein.
22
"Warrant Stock" shall mean the Common Stock of the Company and any other securities at any time receivable or issuable upon exercise of this Warrant.
Subject to compliance with the terms and conditions of this Warrant and applicable securities laws, this Warrant may be exercised, in whole or in part at any time or from time to time, on or before the Expiration Date by the delivery (including, without limitation, delivery by facsimile) of the form of Notice of Exercise attached hereto as Exhibit 1 (the "Notice of Exercise"), duly executed by the Holder, to the Company, and as soon as practicable after such date, surrendering (a) this Warrant, and (b) payment, (i) in cash (by check) or by wire transfer, (ii) by cancellation by the Holder of indebtedness of the Company to the Holder; or (iii) by a combination of (i) and (ii), of an amount equal to the product obtained by multiplying the number of shares of Common Stock being purchased upon such exercise by the then effective Purchase Price (the "Exercise Amount"), except that if Holder is subject to HSR Act Restrictions (as defined in Section 2.5 below), the Exercise Amount shall be paid to the Company within five (5) business days of the termination of all HSR Act Restrictions.
In lieu of the payment methods set forth in Section 2.1(b) above, the Holder may elect to exchange all or some of the Warrant for shares of Warrant Stock equal to the value of the amount of the Warrant being exchanged on the date of exchange. If Holder elects to exchange this Warrant as provided in this Section 2.2, Holder shall tender to the Company the Warrant for the amount being exchanged, along with written notice of Holder's election to exchange some or all of the Warrant, and the Company shall issue to Holder the number of shares of the Warrant Stock computed using the following formula:
| X = | Y (A-B) A |
Where X = the number of shares of Warrant Stock to be issued to Holder; Y = the number of shares of Warrant Stock purchasable under the amount of the Warrant being exchanged; A = the Fair Market Value of one share of the Company's Warrant Stock; and B = the Purchase Price. All references herein to an "exercise" of the Warrant shall include an exchange pursuant to this Section 2.2.
In lieu of the payment methods set forth in Section 2.1(b) above, when permitted by law and applicable regulations (including Nasdaq and NASD rules), the Holder may pay the Purchase Price through a "same day sale" commitment from the Holder, whereby the Holder irrevocably elects to exercise this Warrant and to sell a portion of the Shares so purchased to pay for the Purchase Price and the Holder commits upon sale of such Shares to forward the Purchase Price directly to the Company.
As soon as practicable on or after such date, the Company shall issue and deliver to the person or persons entitled to receive the same a certificate or certificates for the number of whole shares of Warrant Stock issuable upon such exercise, together with cash in lieu of any fraction of a share equal to such fraction of the current Fair Market Value of one whole share of Warrant Stock as of the date of exercise of this Warrant. No fractional shares or scrip representing fractional shares shall be issued upon an exercise of this Warrant.
23
The Company hereby acknowledges that exercise of this Warrant by Holder may subject the Company and/or the Holder to the filing requirements of the HSR Act and that Holder may be prevented from exercising this Warrant until the expiration or early termination of all waiting periods imposed by the HSR Act ("HSR Act Restrictions"). If on or before the Expiration Date Holder has sent the Notice of Exercise to Company and Holder has not been able to complete the exercise of this Warrant prior to the Expiration Date because of HSR Act Restrictions, the Holder shall be entitled to complete the process of exercising this Warrant in accordance with the procedures contained herein notwithstanding the fact that completion of the exercise of this Warrant would take place after the Expiration Date or the completion of the IPO.
In case of any partial exercise of this Warrant, the Company shall cancel this Warrant upon surrender hereof and shall execute and deliver a new Warrant of like tenor and date for the balance of the shares of Warrant Stock purchasable hereunder. This Warrant shall be deemed to have been exercised immediately prior to the close of business on the date of its surrender for exercise as provided above.
All shares of Warrant Stock issued upon the exercise of this Warrant shall be validly issued, fully paid and non-assessable, and the Company shall pay all taxes and other governmental charges that may be imposed in respect of the issue or delivery thereof.
The number of shares of Warrant Stock issuable upon exercise of this Warrant (or any shares of stock or other securities or property receivable or issuable upon exercise of this Warrant) and the Purchase Price are subject to adjustment upon occurrence of the following events:
The Purchase Price of this Warrant shall be proportionally decreased or increased (as applicable) and the number of shares of Warrant Stock issuable upon exercise of this Warrant (or any shares of stock or other securities at the time issuable upon exercise of this Warrant) shall be proportionally increased or decreased (as applicable) to reflect any stock split or subdivision, or combination or reverse stock split, respectively, of the Company's Warrant Stock.
In case the Company shall make or issue, or shall fix a record date for the determination of eligible holders entitled to receive, a dividend or other distribution with respect to the Warrant Stock (or any shares of stock or other securities at the time issuable upon exercise of the Warrant) payable in (a) securities of the Company or (b) assets (excluding cash dividends paid or payable solely out of retained earnings), then, in each such case, the Holder of this Warrant on exercise hereof at any time after the consummation, effective date or record date of such dividend or other distribution, shall receive, in addition to the shares of Warrant Stock (or such other stock or securities) issuable on such exercise prior to such date, and without the payment of additional consideration therefor, the securities or such other assets of the Company to which such Holder would have been entitled upon such date if such Holder had exercised this Warrant on the date hereof and had thereafter, during the period from the date hereof to and including the date of such exercise, retained such shares and/or all other additional stock available by it as aforesaid during such period giving effect to all adjustments called for by this Section 4.
24
If the Company, by reclassification of securities or otherwise, shall change any of the securities as to which purchase rights under this Warrant exist into the same or a different number of securities of any other class or classes, this Warrant shall thereafter represent the right to acquire such number and kind of securities as would have been issuable as the result of such change with respect to the securities that were subject to the purchase rights under this Warrant immediately prior to such reclassification or other change and the Purchase Price therefore shall be appropriately adjusted, all subject to further adjustment as provided in this Section 4.
In case of any capital reorganization of the capital stock of the Company (other than a combination, reclassification, exchange or subdivision of shares otherwise provided for herein), or any merger or consolidation of the Company with or into another corporation, or the sale of all or substantially all the assets of the Company then, and in each such case, as a part of such reorganization, merger, consolidation, sale or transfer, lawful provision shall be made so that the Holder of this Warrant shall thereafter be entitled to receive upon exercise of this Warrant, during the period specified herein and upon payment of the Purchase Price then in effect, the number of shares of stock or other securities or property of the successor corporation resulting from such reorganization, merger, consolidation, sale or transfer that a holder of the shares deliverable upon exercise of this Warrant would have been entitled to receive in such reorganization, consolidation, merger, sale or transfer if this Warrant had been exercised immediately before such reorganization, merger, consolidation, sale or transfer, all subject to further adjustment as provided in this Section 4. The foregoing provisions of this Section 4.4 shall similarly apply to successive reorganizations, consolidations, mergers, sales and transfers and to the stock or securities of any other corporation that are at the time receivable upon the exercise of this Warrant.
In each case of any adjustment in the Purchase Price, or number or type of shares issuable upon exercise of this Warrant, the Company shall promptly send a certificate to the Holder detailing the computation of the adjustment.
Upon receipt of evidence reasonably satisfactory to the Company of the ownership of and the loss, theft, destruction or mutilation of this Warrant, and of indemnity reasonably satisfactory to it, and (in the case of mutilation) upon surrender and cancellation of this Warrant, the Company will execute and deliver a new Warrant of like tenor as the lost, stolen, destroyed or mutilated Warrant.
The Company hereby covenants that at all times there shall be reserved for issuance and delivery upon exercise of this Warrant such number of shares of Common Stock or other shares of capital stock of the Company as are from time to time issuable upon exercise of this Warrant and, if and when necessary, will take all steps necessary to amend its charter documents to provide sufficient reserves of shares of Warrant Stock. All such shares shall be duly authorized, and when issued upon such exercise, shall be validly issued, fully paid and non-assessable, free and clear of all liens and encumbrances, except encumbrances or restrictions arising under federal or state securities laws.
Subject to the terms and conditions of this Warrant and compliance with all applicable securities laws, this Warrant and all rights hereunder may be transferred to any Registered Holder parent, subsidiary or affiliate, in whole or in part, upon notice to the Company and surrender of this Warrant
25
and the payment of any necessary transfer tax or other governmental charge imposed upon such transfer.
The Holder, by acceptance hereof, agrees that, absent an effective registration statement filed with the SEC under the Securities Act of 1933, as amended (the "1933 Act"), covering the disposition or sale of this Warrant or the Warrant Stock issued or issuable upon exercise hereof and registration or qualification under applicable state securities laws, such Holder will not sell, transfer, pledge, or hypothecate any or all such Warrants or Warrant Stock unless either (i) the Company has received an opinion of counsel, in form and substance reasonably satisfactory to the Company, to the effect that such registration is not required in connection with such disposition or (ii) the sale of such securities is made pursuant to SEC Rule 144.
By acceptance of this Warrant, the holder hereby represents, warrants and covenants that any shares of stock purchased upon exercise of this Warrant or acquired upon conversion thereof shall be acquired for investment only and not with a view to, or for sale in connection with, any distribution thereof; that the Holder is able to bear the economic risk of holding such shares as may be acquired pursuant to the exercise of this Warrant for an indefinite period; that the Holder understands that the shares of stock acquired pursuant to the exercise of this Warrant or acquired upon conversion thereof will not be registered under the 1933 Act and will be "restricted securities" within the meaning of Rule 144 under the 1933 Act; and that all stock certificates representing shares of stock issued to the Holder upon exercise of this Warrant or upon conversion of such shares may have affixed thereto an appropriate legend reflecting such restricted nature.
This Warrant shall not entitle the Holder to any voting rights or other rights as a stockholder of the Company.
The Company hereby represents and warrants to Holder that the statements in the following paragraphs of this Section 12 are all true and correct:
| 12.1. | Organization, Good Standing and Qualification. |
The Company is a corporation duly organized, validly existing and in good standing under, and by virtue of, the laws of the State of Oregon and has all requisite corporate power and authority to own its properties and assets and to carry on its business as now conducted and as presently proposed to be conducted. The Company is qualified to do business as a foreign corporation in each jurisdiction where failure to be so qualified would have a material adverse effect on its financial condition, business, prospects or operations.
| 12.2. | Due Authorization; Consents. |
All corporate action on the part of the Company, its officers, directors and shareholders necessary for (a) the authorization, execution and delivery of, and the performance of all obligations of the Company under this Warrant, and (b) the authorization, issuance, reservation for issuance and delivery of all of the equity securities issuable upon exercise of this Warrant (and, if applicable, the Common Stock issuable upon conversion thereof). This Warrant constitutes a valid and binding obligation of the Company enforceable in accordance with its terms, subject, as to enforcement of remedies, to applicable bankruptcy, insolvency, moratorium, reorganization and similar laws affecting creditors' rights generally and to general equitable principles. All consents, approvals and authorizations of, and registrations, qualifications and filings with, any federal or state governmental agency, authority or
26
body, or any third party, required in connection with the execution, delivery and performance of this Warrant and the consummation of the transactions contemplated hereby and thereby have been obtained.
| 12.3. | Valid Issuance of Stock. |
The outstanding shares of the capital stock of Company are duly and validly issued, fully paid and non-assessable.
| 12.4. | SEC Reports; Financial Statements. |
The Company has duly filed with the SEC the Company's annual report on Form 10-K for the year ended December 31, 1997, and its quarterly reports on Form 10-Q for the quarter ended March 31, 1998, (collectively, the "Company SEC Reports"). As of their respective filing dates, the Company SEC Reports complied in all material respects with the requirements of the Securities Exchange Act of 1934, as amended, and none of the SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading, except to the extent corrected by a subsequently filed document with the SEC. Each of the consolidated financial statements (including, in each case, any related notes) contained in the Company SEC Reports complied as to form in all material respects with the applicable published rules and regulations of the SEC with respect thereto, was prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted for by Form 10-Q) and presented fairly, in all material respects, the consolidated financial position of the Company and its subsidiaries as at the respective dates and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements are subject to normal and recurring year-end adjustments which are not expected to be material in amount.
| 12.5. | Governmental Consents. |
All consents, approvals, orders, authorizations or registrations, qualifications, designations, declarations or filings with any US., federal or state governmental authority on the part of Company required in connection with the consummation of the transactions contemplated herein shall have been obtained prior to and be effective as of the Effective Date.
| 12.6. | Disclosure. |
No representation or warranty by the Company in this Warrant contains or will contain any untrue statement of a material fact or omits or will omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they are made, not misleading.
All notices and other communications from the Company to the Holder shall be given in writing via certified mail, return receipt requested, hand delivery or overnight delivery to 2200 Mission College Boulevard, Mail Stop SC4-210, Santa Clara, California 95052, Attention: Treasurer.
This Warrant shall be construed and enforced in accordance with, and governed by, the laws of the State of Oregon.
27
The Company will not, by amendment of its Articles of Incorporation or bylaws, or through reorganization, consolidation, merger, dissolution, issue or sale of securities, sale of assets or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant.
In case (a) the Company shall take a record of the holders of its Warrant Stock, for the purpose of entitling them to receive any dividend or other distribution, or any right to subscribe for or purchase any shares of stock of any class or any other securities or to receive any other right; (b) of any consolidation, merger or reorganization of the Company, any reclassification of the capital stock of the Company, or any conveyance of all or substantially all of the assets of the Company to another corporation in which holders of the Company's stock are to receive stock, securities or property of another corporation; (c) of any voluntary dissolution, liquidation or winding-up of the Company; or (d) of any redemption or conversion of all outstanding Common Stock or Warrant Stock; then, and in each such case, the Company will mail or cause to be mailed to the Registered Holder of this Warrant a notice specifying, as the case may be, (i) the date on which a record is to be taken for the purpose of such dividend, distribution or right, or (ii) the date on which such transaction or event is to take place, and the time, if any is to be fixed, as of which the holders of record of Warrant Stock, shall be entitled to exchange their shares of Warrant Stock for securities or other property deliverable upon such event or transaction. Such notice shall be delivered at least thirty (30) days prior to the date therein specified.
If any term, provision, covenant or restriction of this Warrant is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
The Company shall deliver to each holder of this Warrant or any securities issued (directly or indirectly) upon exercise hereof, upon request, copies of the Company's reports on Forms 10-K, 10-Q, and 8-K and Annual Reports to Shareholders promptly after such documents are filed with the SEC.
The Company will not on or after the date of this Warrant enter into any agreement with respect to its securities which is inconsistent with the rights granted to the Holders of this Warrant or otherwise conflicts with the provisions hereof. The rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to holders of the Company's securities under any other agreements, except rights that have been waived.
If the Expiration Date falls on a Saturday, Sunday or legal holiday, the Expiration Date shall automatically be extended until 5:00 p.m. the next business day.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
28
IN WITNESS WHEREOF, the parties hereto have executed this Warrant as of the Effective Date.
| INTEL CORPORATION | THRUSTMASTER, INC. | |||
| By: |
|
|
By: |
|
| Printed Name |
|
Printed Name |
||
| Title |
|
Title |
||
SIGNATURE PAGE TO WARRANT
29
INTEL SOFTWARE LICENSE AGREEMENT (Final, Single User)
IMPORTANT—READ BEFORE COPYING, INSTALLING OR USING.
Do not use or load this software and any associated materials (collectively, the "Software") until you have carefully read the following terms and conditions. By loading or using the Software, you agree to the terms of this Agreement. If you do not wish to so agree, do not install or use the Software.
LICENSE. You may copy the Software onto a single computer for your personal, noncommercial use, and you may make one back-up copy of the Software, subject to these conditions:
OWNERSHIP OF SOFTWARE AND COPYRIGHTS. Title to all copies of the Software remains with Intel or its suppliers. The Software is copyrighted and protected by the laws of the United States and other countries, and international treaty provisions. You may not remove any copyright notices from the Software. Intel may make changes to the Software, or to items referenced therein, at any time without notice, but is not obligated to support or update the Software. Except as otherwise expressly provided, Intel grants no express or implied right under Intel patents, copyrights, trademarks, or other intellectual property rights. You may transfer the Software only if the recipient agrees to be fully bound by these terms and if you retain no copies of the Software.
LIMITED MEDIA WARRANTY. If the Software has been delivered by Intel on physical media, Intel warrants the media to be free from material physical defects for a period of ninety days after delivery by Intel. If such a defect is found, return the media to Intel for replacement or alternate delivery of the Software as Intel may select.
EXCLUSION OF OTHER WARRANTIES. EXCEPT AS PROVIDED ABOVE, THE SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. Intel does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the Software.
LIMITATION OF LIABILITY. IN NO EVENT SHALL INTEL OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, OR LOST INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF INTEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS PROHIBIT EXCLUSION OR LIMITATION OF LIABILITY FOR IMPLIED WARRANTIES OR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
TERMINATION OF THIS AGREEMENT. Intel may terminate this Agreement at any time if you violate its terms. Upon termination, you will immediately destroy the Software or return all copies of the Software to Intel.
30
APPLICABLE LAWS. Claims arising under this Agreement shall be governed by the laws of California, excluding its principles of conflict of laws and the United Nations Convention on Contracts for the Sale of Goods. You may not export the Software in violation of applicable export laws and regulations. Intel is not obligated under any other agreements unless they are in writing and signed by an authorized representative of Intel.
GOVERNMENT RESTRICTED RIGHTS. The Software is provided with "RESTRICTED RIGHTS." Use, duplication, or disclosure by the Government is subject to restrictions as set forth in FAR52.227-14 and DFAR252.227-7013 et seq. or its successor. Use of the Software by the Government constitutes acknowledgment of Intel's proprietary rights therein. Contractor or Manufacturer is Intel Corporation, 2200 Mission College Blvd., Santa Clara, CA 95052.
31
Thrustmaster Management of Intel Software Source Code
32
Ensuring compatability between Intel
Multi-point Audio derived applications
The Intel Multi-point Audio SDK can be integrated with many types of applications to provide multi-participant audio conferencing. Follow these directions to ensure that the applications you build are compatible with each other as well as all other applications that have been built using Intel Multi-point Audio.
For Install /Uninstall Compatibility
If you are using the Intel Multi-point Audio SDK as Released
All applications using this release of the Intel Multi-point Audio SDK unmodified (no source level changes) should follow these steps to ensure that they do not conflict with other applications also using this SDK.
Files that implement Intel Multi-point Audio core functionality must be placed in a well known directory common to all applications that use it. Because files in this directory are shared by multiple applications, standard MS Windows shared file reference counting should be used when installing and uninstalling these files. Also, check file creation times to ensure that you never copy over any of the core files with an older version.
The common shared directory for this release of the Intel Multi-point Audio SDK is:
<Program Files>\Common Files\Intel\Multi-Point Audio 1.6
Note: <Program Files> is a variable location maintained by Windows system and is not always C:\Program Files
The list of core files can be found in the section below entitled Intel Multi-point Audio core files.
Registry settings required to configure Intel Multi-point Audio are unique to each application that uses the SDK. To ensure that applications configurations do not change or conflict with each other, Multi-point Audio registry subkeys and entries are placed under a registry key unique to that application. This is accomplished with the following three steps.
HKEY_LOCAL_MACHINE\Software\Intel\<application id>
Or. to use our example,
HKEY_LOCAL_MACHINE\Software\Intel\MyCompany\ThisProduct\v1.0\. . .
Note: to editor we might want a reference to the "installation design doc" part of the document Where all the current registry entries are listed.
33
//Create
an instance of the MultiPointAudio control
HRESULT hr = m_spMpa.CoCreateInstance(CLSID_MpaCtrl);
...
< other COM related initialization >
...
m_spMpa->Init(_bstr_t("MyCompany\ThisProduct\v1.0"));
If you have made source code changes to Intel Multi-point Audio
Integrators that have made source code level changes to the Intel Multi-point Audio subsystem need to ensure that any changes they have made do not inadvertently affect the operation of applications using the original, unmodified Multi-point Audio SDK. Following these steps will ensure compatibility with existing and future applications using Intel Multi-point Audio.
For Runtine Compatability
If you want to ensure that your application will execute and run correctly at the same time other Multi-point Audio applications are running, follow these steps.
Setting the ConferenceListenPort property to the default values allows the Multi-point Audio subsystem to inter-operate with H.323 based internet phone applications.
34
Intel Multi-point Audio core files:
Audmsp32.dll
MPA.dll
Ppm.dll
SM.dll
api.dll
arscli.dll
autoreg.dll
avserp32.dll
callcont.dll
cclock.dll
confmgr.dll
cstrain.dll
dr.dll
gki.dll
h245.dll
h245ws.dll
icas.exe
irrcm.dll
isdm2.dll
isreghlp.dll
mallmsp.dll
marsrdr.dll
mixmsp.dll
mpap.dll
mpas.dll
msm.dll
netmmerr.dll
ossapi.dll
ossdmem.dll
rci.dll
refobj.dll
sessnmgr.dll
soedper.dll
strmsp.dll
vcrmsp32.dll
35
Amendment
Software Development and Licensing Agreement
This Amendment ("Amendment') is made effective as of April 21, 2000 ("Effective Amendment Date"), by and between Intel Corporation ("Intel") and CenterSpan Communications Corporation ("CenterSpan"), and amends that Software Development and Licensing Agreement between Intel and CenterSpan that has an effective date of August 9, 1999 ("Agreement"). Capitalized terms in this Amendment shall have the meanings attached to them in the Agreement unless otherwise specifically defined herein.
In the Agreement, Intel licensed the Intel Software to CenterSpan and in consideration Intel received Warrants to purchase 200,000 shares of CenterSpan common stock (the "Agreement Warrants").
Intel now desires to provide CenterSpan certain additional license rights to the Intel Software and CenterSpan desires to obtain such additional license rights to the Intel Software as set forth in this Amendment. In consideration of these additional license rights, the Agreement Warrants will vest immediately, and CenterSpan will issue and deliver to Intel additional new warrants to purchase 125,000 shares of CenterSpan common stock (as further defined below, the "Amendment Warrants").
NOW THEREFORE, based on the Recitals and the mutual covenants herein, the parties agree to amend the Agreement as follows:
1
Agreement) to any third party before [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE SEC], except as may be incorporated into any other technology, product or service offered by Intel or its majority owned subsidiaries.
2
| Agreed: | ||
| Intel Corporation |
|
CenterSpan Communications Corporation |
| Signature |
|
Signature |
| Printed Name |
|
Printed Name |
| Title |
|
Title |
3
(Amendment to Exhibit C of the Agreement)
The parties understand the objective of this agreement is to achieve a significant number of end users of Intel Software. To that end the parties agree to the following short and long term metrics.
| C.2.1 | For purposes of this section, Registered Users shall include any and all registered users of a sublicensee l. CenterSpan shall be credited with obtaining such Registered Users at the time a sublicense agreement is executed between CenterSpan and a third party licensee. Registered Users shall also include all Active Users of Licensed Product as provided in Section C.1. Registered Users shall include the registered users of all versions of Licensed Products, including beta and new releases. |
CenterSpan shall use best efforts to achieve the milestones outlined below.
| Date | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE SEC] |
|
| Signed Definitive Distribution Agreements with Game ISV's/Web Game Sites | [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE SEC] | |
| Total Active Userbase of Socket Product |
|
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE SEC] |
| Total Registered Userbase of Socket Product |
|
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE SEC] |
| Sub-licensees of LAPI enabled Socket Platform |
|
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE SEC] |
| Sub-licensees of LAPI component technology (this number includes sub-licensees of Socket Platform above) |
|
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE SEC] |
| Total Registered Userbase of LAPI-enabled technology sub-licensees |
|
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE SEC] |
| |
|
|
| |
|
|
4
|
|