<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A1
(MARK ONE)
X ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
----- EXCHANGE ACT OF 1934 [FEE REQUIRED]
FOR THE FISCAL YEAR ENDED SEPTEMBER 30, 1995
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
----- EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
FOR THE TRANSITION PERIOD FROM TO
COMMISSION FILE NUMBER: 0-26074
SPYGLASS, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 37-1258139
- ----------------------- ------------------
(State or other jurisdiction of (I.R.S. Employer
inorporation or organization) Identification No.
1240 EAST DIEHL ROAD, NAPERVILLE, ILLINOIS 60563
(Address of principal executive offices) (Zip Code)
1230 EAST DIEHL ROAD, SUITE 304, NAPERVILLE, ILLINOIS 60563
(Former name, former address and former fiscal year, if changed since last
report)
Registrant's telephone number, including area code: (708) 505-1010
Securities registered pursuant to Section 12(b) of the Act: NONE
Securities registered pursuant to Section 12(g) of the Act:
$.01 PAR VALUE COMMON STOCK
(Title of Class)
Traded on the Nasdaq National Market
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports) and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
----- -----
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to the
Form 10-K. X
----
The aggregate market value of the Common Stock held by non-affiliates of the
registrant on October 31, 1995, based upon the closing sale price on that date
as reported in The Wall Street Journal was approximately $135,894,264
Registrant had 10,728,114 shares of Common Stock outstanding as of December 13,
1995.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant's 1995 Annual Report to Stockholders for fiscal 1995
are incorporated by reference in Parts II and IV hereof. The Annual Report
shall be deemed "filed" with the Commission only with respect to those portions
specifically incorporated by reference herein. Portions of the Registrant's
definitive Proxy Statement for its Annual Meeting of Shareholders for fiscal
1995, which was filed with the Securities and Exchange Commission on December
18, 1995, are incorporated by reference into Part III hereof.
<PAGE> 2
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
The following financial information is incorporated by reference into Part II
hereof from the Annual Report
1. Financial Statements: Page in Annual Report
Report of Independent Accountants 17
Balance Sheets at September 30, 1995 and 1994 18
Statements of Operations for the three years ended
September 30, 1995 19
Statements of Changes In Redeemable Convertible Preferred
Stock and Stockholders' Equity for the three years ended
September 30, 1995 20
Statements Of Cash Flows for the three years ended
September 30, 1995 21
Notes to the Financial Statements 22-31
2. Financial Statement Schedules:
Report of Independent Accountants on Financial Statement Schedules
Schedule VIII - Valuation and Qualifying Accounts
All other schedules have been omitted because they are not applicable, not
required, or the information required is included in the consolidated
financial statements or notes thereto.
3. Exhibits
The exhibits are listed in the accompanying Index to Exhibits immediately
following the signature page.
(b) Reports on Form 8-K
No Reports on Form 8-K were filed during the quarter ended September 30,
1995.
<PAGE> 3
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
SPYGLASS, INC.
--------------
Registrant
Date: May 17, 1996 /s/ Gary Vilchick
---------------------------
Gary Vilchick
Executive Vice President, Finance,
Administration and Operations and
Chief Financial Officer
<PAGE> 4
INDEX TO EXHIBITS
-----------------
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
3.1* Amended and Restated Certificate of Incorporation
3.2* By-laws
4.1* Specimen certificate for shares of Common Stock
10.1* 1991 Stock Option Plan
10.2* 1995 Stock Incentive Plan
10.3* 1995 Director Stock Option Plan
10.4* Registration Rights, Right of First Refusal and Right of Co-Sale
Agreement dated September 20, 1991
10.5 First amendment to Lease between 1230 Diehl Associated Limited
Partnership and the Registrant dated February 1, 1995. (The
lease was previously filed and is incorporated herein by
reference from the Company's Registration Statement on Form S-1
(File No. 33-92174))
10.6* Lease between Regency Farber Limited Partnership and the
Registrant dated February 21, 1995
10.7* Employment and Confidentiality Agreement between the Registrant
and Douglas P. Colbeth dated April 1, 1991
10.8* Employment and Confidentiality Agreement between the Registrant
and Michael F. Tyrrell dated April 29, 1991
10.9* Employment and Confidentiality Agreement between the Registrant
and Marcus C. Miller
10.10 Standard form of Employment and Confidentiality Agreement
10.11 Amendment No. 4 to NCSA Mosaic Software License Agreement
between the Registrant and the Board of Trustees for the
University of Illinois dated June 28, 1995. The NCSA Mosaic
Software License Agreement was previously filed and is
incorporated herein by reference from the Company's Registration
Statement on Form S-1 (File No. 33-92174)**
10.12* OEM/Source License Agreement between the Registrant and
Microsoft Corporation dated December 12, 1994
10.13 RSA Data Security, Inc.-BSAFE/TIPEM OEM Master License Agreement
dated August 8, 1995.**
11.1 Statement regarding computation of earnings per share
13.1 Annual Report to Stockholders for the fiscal year ended
September 30, 1995 (which shall be deemed "filed" only with
respect to those portions specifically incorporated by
reference herein.)
</TABLE>
<PAGE> 5
21.1* Subsidiaries of the Registrant
23.1 Consent of Independent Accountants
* Incorporated herein by reference from the Company's Registration
Statement on Form S-1 (File No. 33-92174).
** Confidential treatment previously granted by the Securities and
Exchange Commission as to certain portions.
<PAGE> 1
Confidential material omitted
and filed separately with the
Securities and Exchange Commission.
Asterisks denote such omissions.
EXHIBIT 10.13
OEM Master License Agreement Number: 0895-SPY-O-MLA-1
Date of Agreement: 8/10/95
BSAFE/TIPEM
OEM MASTER LICENSE AGREEMENT
THIS OEM MASTER LICENSE AGREEMENT ("Agreement") is entered into on the
date set forth below between RSA Data Security, Inc., a Delaware corporation
("RSA"), having a principal mailing address at 100 Marine Parkway, Suite 500,
Redwood City, California 94065, and the entity named below as "OEM" ("OEM"),
having a principal address as set forth below.
OEM:
Spyglass, Inc., a Delaware corporation
- ----------------------------------------
(Name and jurisdiction of incorporation)
OEM Address:
1230 E. Diehl Road, Suite 304
- ----------------------------------------
Naperville, IL 60563
- ----------------------------------------
- ----------------------------------------
OEM Legal Contact:
Mike Bevilacqua- Hale and Dorr 617-526-6448
- -------------------------------------------
(name, telephone and title)
OEM Billing Contact:
Tom Lewicki, Controller 708-505-1010, ext. 501
- ----------------------------------------------
(name, telephone and title)
OEM Technical Contact:
Tim Krauskopf, V.P. Engineering 217-355-6000
- --------------------------------------------
ext. 227
- --------------------------------------------
(name, telephone and title)
OEM Commercial Contact:
- --------------------------------------------
(name, telephone and title)
OEM Initial P.O. Number:
- --------------------------------------------
Territory:
Worldwide; provided, however, that OEM shall not grant licenses for use of the
Bundled Product in any foreign country where the terms of the license agreement
would not provide the intellectual property protections intended to be provided
by such license, or where there is a significant risk that the RSA Software or
any part thereof would thereby fall into the public domain. Exhibit "D" hereto
sets forth a list of countries where RSA agrees that OEM may in any event grant
licenses for use of the Bundled Product. If OEM wishes to grant a license in a
country not listed on Exhibit "D," RSA will consider in good faith any
information provided by OEM to determine within thirty (30) calendar days
whether RSA believes licenses granted in such country would meet the
requirements set forth in this paragraph.
Exhibit "C" Special Terms and Conditions
Attached:
YES [ X ] NO [ ]
<PAGE> 2
RSA Data Security, Inc.
OEM Master License Agreement
Page 2
1. DEFINITIONS
The following terms when used in this Agreement shall have the following
meanings:
1.1 "Bundled Products" means one or more of the specific products
described on a License/Product Schedule attached hereto and referencing this
Agreement which has been or will be developed by OEM and which incorporates in
the OEM Product in any manner any portion of the RSA Object Code. A Bundled
Product must represent a significant functional and value enhancement to the
Licensed Software such that the primary reason for an End User Customer to
license such Bundled Product is other than the right to receive a license to
the Licensed Software included in the Bundled Product.
1.2 "Distributor" means a dealer or distributor in the business of
reselling or sublicensing Bundled Products by virtue of authority of OEM.
Bundled Products resold and sublicensed by a Distributor shall bear OEM's
trademarks and service marks and shall not be privately labeled by such
Distributor or other parties. A Distributor shall have no right to modify any
part of the Licensed Software.
1.3 "End User Customer" means a person or entity sublicensing RSA
Object Code as part of a Bundled Product from OEM or a Distributor solely for
personal or internal use and without right to sublicense, assign or otherwise
transfer such Bundled Product to any other person or entity.
1.4 "License/Product Schedule" shall mean a schedule substantially in
the form of Exhibit "A" hereto completed and executed with respect to each
Bundled Product specifying the Licensed Software and Licensed Functionality
with respect to such Bundled Products. A License/Product Schedule can be
amended pursuant to Section 9.5 to provide additional Licensed Software or
Licensed Functionality with respect to a specified Bundled Product. Additional
Bundled Products may be added to this License Agreement by executing an
additional License/Product Schedule referencing this Agreement. All such
License/Product Schedules are incorporated in this Agreement by this reference.
1.5 "Interface Modifications" shall have the meaning set forth in
Section 2.1.1.
1.6 "Know-How" shall have the meaning set forth in Section 6.4.1.
1.7 "License Fees" shall have the meaning set forth in Section 3.1.
1.8 "Licensed Functionality" means with respect to the Licensed
Software for a Bundled Product the functionality listed on the License/Product
Schedule for such Bundled Product.
1.9 "Licensed Software" means that portion of the RSA Software
specified on a License/Product Schedule hereto as having been licensed by OEM
and that produces the functionality specified in the associated User Manual
section relating to the named Licensed Software. Only those portions of the
RSA Software specified as having been licensed are included in the Licensed
Software. Licensed Software shall include modifications and enhancements
(including all New Releases and New Versions) to such software as provided by
RSA to OEM under this Agreement. Licensed Software shall be specified by
Bundled Product and OEM may elect as set forth on the License/Product Schedule
to license different Licensed Software with respect to different Bundled
Products.
1.10 "New Release" means a version of the RSA Software which shall
generally be designated by a new version number which has changed from the
prior number only to the right of the decimal point (e.g., Version 2.2 to
Version 2.3).
1.11 "New Version" means a version of the RSA Software which shall
generally be designated by a new version number which has changed from the
prior number to the left of the decimal point (e.g., Version 2.3 to Version
3.0).
1.12 "OEM Product" means any product developed by OEM which is to be
bundled with the Licensed Software or into which the Licensed Software is to be
incorporated to create a Bundled Product.
1.13 "RSA Object Code" means the Licensed Software in machine-readable,
compiled object code form.
1.14 "RSA Software" means RSA proprietary software known as BSAFE and
TIPEM as described in the User Manuals associated therewith. "RSA Software"
shall also include all modifications and enhancements (including all New
Releases and New Versions) to such programs as provided by RSA to OEM.
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RSA Data Security, Inc.
OEM Master License Agreement
Page 3
1.15 "RSA Source Code" means the mnemonic, high level statement
versions of the RSA Software written in the source language used by
programmers.
1.16 "Territory" means those countries or portions of countries listed
on page 1 hereof.
1.17 "User Manual" means the most current version of the user manual
customarily supplied by RSA to end users who license the RSA Object Code.
2. GRANT OF LIMITED LICENSES
2.1 RSA Source Code License. For OEM's convenience, RSA wishes to
permit OEM to port the RSA Software to any environment OEM desires in
accordance with the following license, if granted. If a source code license is
specified in a License/Product Schedule, RSA hereby grants OEM a non-exclusive,
non-transferable, non-assignable limited license in the Territory during the
term specified in Section 8 to:
2.1.1 Modify the RSA Source Code to create interfaces and other
software necessary to permit the object code to the RSA Software to operate in
accordance with the User Manual in any of OEM's proprietary products (all such
modifications to the RSA Source Code referenced collectively as "Interface
Modifications").
2.1.2 Use the RSA Source Code to provide support of Bundled
Products to End User Customers.
2.1.3 Compile the RSA Source Code to create object code
solely to permit creation of Interface Modifications and for the purposes set
forth in Section 2.2 (with the limitations set forth in Section 2.3).
2.2 Object Code License. RSA wishes to permit OEM to incorporate
into Bundled Products only specified portions and functionality of the RSA
Software; additional portions and functionality of the RSA Software can be
added and additional Bundled Products can be added by executing an amendment to
a License/Product Schedule or a new License/Product Schedule. RSA hereby
grants OEM a non-exclusive, non-transferable, non-assignable limited license in
the Territory during the term specified in Section 8 to:
2.2.1 Incorporate the Licensed Functionality of the RSA
Object Code into the OEM Product to create a Bundled Product.
2.2.2 Reproduce, have reproduced, and sublicense the Licensed
Functionality of the RSA Object Code and the User Manual incorporated in a
Bundled Product.
2.3 Limitations On Object Code License. The licenses granted in
Section 2.2 shall be limited as follows:
2.3.1 Sublicenses of the RSA Object Code to Licensed Software
shall be granted only to (i) Distributors and (ii) End User Customers.
2.3.2 OEM may not in any way sell, rent, license, sublicense
or otherwise distribute the RSA Software or any part thereof or the right to
use the RSA Software or any part thereof as a stand-alone product to any person
or entity.
2.3.3 OEM may not incorporate into any Bundled Product any
algorithm or other functionality included within the RSA Software which is not
Licensed Software as set forth on the License/Product Schedule with respect to
such Bundled Product.
2.3.4 If Licensed Software with respect to a Bundled Product has
a specified Licensed Functionality, it may be incorporated, reproduced, or
sublicensed only with respect to such Licensed Functionality and no other
functionality of such Licensed Software is permitted to be incorporated,
reproduced, or sublicensed in such Bundled Product. If no Licensed
Functionality restriction is specified for an item of Licensed Software with
respect to a Bundled Product, then OEM shall have the rights set forth in
Section 2.2 with respect to all functionalities of such Licensed Software with
respect to such Bundled Product.
2.4 Title.
2.4.1 Except for the limited licenses granted in Sections 2.1
and 2.2, RSA shall at all times retain full and exclusive right, title and
ownership interest in and to the RSA Software and in any and all related
patents, trademarks, copyrights or proprietary or trade secret rights.
2.4.2 OEM shall at all times retain full and exclusive right,
title and ownership
39567.6
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RSA Data Security, Inc.
OEM Master License Agreement
Page 4
interest in and to the Interface Modifications and in any and all related
copyrights or proprietary or trade secret rights; provided, however, that OEM
hereby agrees that it will not assert against RSA any of such copyrights or
proprietary or trade secret rights with respect to any interfaces independently
developed by RSA without reference to the source code to the Interface
Modifications.
3. LICENSE FEES
3.1 License Fees. In consideration of RSA's grant to OEM of the
limited license rights hereunder, OEM shall pay to RSA the amounts set forth
below (the "License Fees"):
3.1.1 Source Code License Fees. If RSA is granting to OEM RSA
Source Code license rights as specified in a License/Product Schedule, OEM
shall pay to RSA the license fee as specified on each such License/Product
Schedule.
3.1.2 Object Code License Fees. In consideration of RSA's grant
to OEM of the RSA Object Code sublicense rights for each Bundled Product
described in each License/Product Schedule, OEM shall pay to RSA the license
fees set forth in each such License/Product Schedule, subject to the following:
3.1.2.1 Fixed Dollar Amount. If a fixed dollar fee
is specified for each copy/unit of a Bundled Product licensed or otherwise
distributed by OEM or a Distributor, the License Fee per copy/unit shall be in
the amount specified in the License Product Schedule.
3.1.2.2 Percentage of Net Sales. If a License Fee
based on Net Sales is specified in the License/Product Schedule, a License Fee
shall be due for each copy/unit of a Bundled Product licensed or otherwise
distributed by OEM or a Distributor, in the amount of the specified percentage
of the Net Sales Price of the Bundled Product. The "Net Sales Price" shall be
the gross amount of all cash, in-kind or other consideration receivable by OEM
or such Distributor at any time in consideration of the licensing or other
distribution of the Bundled Product, excluding any amounts received by OEM or
such Distributor for sales and use taxes, shipping, insurance and duties, and
reduced by all discounts, rebates, refunds or allowances granted in the
ordinary course of business. For the purposes of determining Net Sales Price,
the amount of in-kind or other non-cash consideration receivable by OEM shall
be deemed to have a dollar value equal to the standard price (as listed in
OEM's published price schedule on the date of the grant of the license or the
sale in question) ("Standard Price") for such Bundled Product, less all cash
paid. With respect to a Bundled Product which is licensed or otherwise
distributed by OEM or a Distributor as part of a larger group of products or as
an integral part of another product, a license fee shall be due as set forth
above as though the Bundled Product had been licensed or distributed separately
by OEM or such Distributor; provided, however, that if the amount invoiced for
the Bundled Product when licensed or distributed in this manner is more than
five percent (5%) below the Standard Price for the Bundled Product, then the
Net Sale Price relating to such invoice shall be deemed to be no less than
ninety-five percent (95%) of the Standard Price, notwithstanding the actual
amount of the invoice.
3.1.3 Prepayment of License Fees. OEM shall prepay license fees
in the amount set forth in the License/Product Schedule upon execution of the
License/Product Schedule. In no event shall such prepayment be refundable. If
OEM has prepaid License Fees with respect to a Bundled Product, one-half (1/2)
of the License Fees accrued may be offset against such prepaid License Fees.
OEM shall show the application of prepaid fees in the licensing reports
provided to RSA pursuant to Section 3.5.
3.2 Taxes. All taxes, duties, fees and other governmental charges of
any kind (including sales and use taxes, but excluding United States or
California taxes based on the gross revenues or net income of RSA) which are
imposed by or under the authority of any government or any political
subdivision thereof on the License Fees or any aspect of this Agreement shall
be borne by OEM and shall not be considered a part of, a deduction from or an
offset against, the License Fees.
3.3 Terms of Payment. License fees shall accrue with respect to
Bundled Products licensed or otherwise distributed by OEM or Distributors upon
the date of invoice of the Bundled Product to an End User Customer or
Distributor. License fees due RSA hereunder shall be paid by OEM to the
attention of the Software Licensing Department at RSA's address set forth above
on or before the thirtieth (30th) day after the close of the calendar quarter
during which the fees accrued. If OEM has prepaid License Fees with respect to
a Bundled Product, one-half (1/2) of License Fees accrued with respect to that
Bundled Product may
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RSA Data Security, Inc.
OEM Master License Agreement
Page 5
be offset against such prepaid License Fees. A late payment penalty of one
percent (1%) of any license fees not paid when due shall be assessed for each
thirty (30) day period, or portion thereof, during which such payment is
delayed, beginning on the thirty-first (31st) day after the last day of the
calendar quarter to which the delayed payment relates.
3.4 U.S. Currency. All payments hereunder shall be made in lawful
United States currency. If OEM receives payment in foreign currencies, the
amount of its license fees to RSA shall be calculated using the closing
exchange rate published in The Wall Street Journal Western Edition on the last
business day such journal is published in the calendar quarter immediately
preceding the date of payment.
3.5 Licensing Report. A report in reasonably detailed form setting
forth the calculation of license fees due from OEM and signed by a responsible
officer of OEM shall be delivered to RSA on or before the thirtieth (30th) day
after the close of each calendar quarter during the term of this Agreement,
regardless of whether royalty payments are required to be made pursuant to
Section 3.3. The report shall include, at a minimum, the following information
(if applicable to OEM's designated method of calculating license fees) with
respect to the relevant quarter: (i) the total number of copies/units of
Bundled Products licensed or otherwise distributed (indicating the names and
versions thereof); (ii) if applicable, the total Net Sales Price invoiced to
Distributors and End User Customers; and (iii) total license fees accrued.
3.6 Audit Rights. RSA shall have the right, at its sole cost and
expense, to conduct during normal business hours and not more frequently than
annually, an audit of the appropriate records of OEM to verify the number of
copies/units of Bundled Products licensed or otherwise distributed by OEM and
Distributors and, if relevant to OEM's designated method of calculating license
fees, the Net Sales Price therefor. If such amounts are found to be different
than those reported, or the license fees accrued are different than those
reported, OEM will be invoiced or credited for the difference, as applicable.
Any additional license fees, along with the late payment penalty assessed in
accordance with Section 3.3, shall be payable within thirty (30) days of such
invoice. If OEM has prepaid License Fees with respect to a Bundled Product,
one-half (1/2) of License Fees accrued with respect to that Bundled Product may
be offset against such prepaid License Fees. If the deficiency in license fees
paid by OEM is greater than five percent (5%) of the license fees reported by
OEM for any quarter, OEM will pay the reasonable expenses associated with such
audit, in addition to the deficiency.
4. WARRANTY AND MAINTENANCE
4.1 Limited Warranty. During the initial ninety (90)-day term of each
License/Product Schedule RSA warrants that the Licensed Functionality of the
Licensed Software specified in each License/Product Schedule will operate in
material conformance to RSA's published specifications for such Licensed
Functionality of the Licensed Software. RSA does not warrant that the RSA
Software or any portion thereof is error-free. OEM's exclusive remedy, and
RSA's entire liability in tort, contract or otherwise, shall be correction of
any warranted nonconformity as provided in Section 4.4. This limited warranty
and any obligations of RSA under Section 4.2 shall not apply to any Interface
Modifications or any nonconformities caused thereby and shall terminate
immediately if OEM makes any modification to the RSA Software other than
Interface Modifications.
4.2 Optional Maintenance. For the year commencing upon the expiration
of the first ninety (90) days of each License/Product Schedule and for each
year thereafter commencing on the anniversary of such expiration, OEM may elect
to purchase annual maintenance, as defined in Section 4.4, by paying the
then-current annual maintenance fee. Such amount shall be payable for the
first year upon the execution of each License/Product Schedule and for each
subsequent year in advance of the commencement of such year. RSA may cease to
offer maintenance by notice delivered to OEM ninety (90) days or more before
the end of the then-current maintenance term.
4.3 Additional Charges. In the event RSA is required to take actions
to correct a difficulty or defect which is traced to OEM errors, modifications,
enhancements, software or hardware, then OEM shall pay to RSA its time and
materials charges at RSA's rates then in effect. In the event RSA's personnel
must travel to perform maintenance or on-site support, OEM shall reimburse RSA
for any reasonable out-of-pocket expenses incurred, including travel to and
from OEM's sites, lodging, meals and shipping, as may
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RSA Data Security, Inc.
OEM Master License Agreement
Page 6
be necessary in connection with duties performed under this Section 4 by RSA.
4.4 Maintenance Provided by RSA. During the ninety (90) days
following commencement of a License/Product Schedule and for periods for which
OEM has paid an annual maintenance fee, RSA will provide OEM with the following
services:
4.4.1 RSA will provide telephone support to OEM during RSA's
normal business hours. RSA may provide on-site support reasonably determined
to be necessary by RSA at OEM's location specified on page 1 hereof. RSA shall
provide the support specified in this Section 4.4.1 to OEM's employees
responsible for developing Bundled Products, maintaining Bundled Products, and
providing support to End User Customers. No more than two (2) OEM employees
may obtain such support from RSA at any one time. On RSA's request, OEM will
provide a list with the names of the employees designated to receive support
from RSA. OEM may change the names on the list at any time by providing
written notice to RSA.
4.4.2 In the event OEM discovers an error in the Licensed
Functionality of the Licensed Software which causes the Licensed Functionality
of the Licensed Software not to operate in material conformance to RSA's
published specifications therefor, OEM shall submit to RSA a written report
describing such error in sufficient detail to permit RSA to reproduce such
error. Upon receipt of any such written report, RSA will use its reasonable
business judgment to classify a reported error as either: (i) a "Level 1
Severity" error, meaning an error that causes the Licensed Functionality of the
Licensed Software to fail to operate in a material manner or to produce
materially incorrect results and for which there is no workaround or only a
difficult workaround; or (ii) a "Level 2 Severity" error, meaning an error that
produces a situation in which the Licensed Functionality of the Licensed
Software is usable but does not function in the most convenient or expeditious
manner, and the use or value of the Licensed Functionality of the Licensed
Software suffers no material impact. RSA will acknowledge receipt of a
conforming error report within two (2) business days and (A) will use its
continuing best efforts to provide a correction for any Level 1 Severity error
to OEM as early as practicable; and (B) will use its reasonable efforts to
include a correction for any Level 2 Severity error in the next release of the
RSA Software.
4.4.3 RSA will provide OEM information relating to New Releases
and New Versions of the RSA Software during the term of this Agreement. New
Releases will be provided at no additional charge. New Versions will be
provided at RSA's standard upgrade charges in effect at the time. Any New
Releases or New Versions acquired by OEM shall be governed by all of the terms
and provisions of this Agreement.
4.5 License of New Releases. In the event OEM has not purchased
optional maintenance with respect to any Licensed Software, OEM may obtain a
license of a New Release of such Licensed Software or any service which is
provided as a part of maintenance by paying the maintenance fees which would
otherwise have been due from the expiration of maintenance provided pursuant to
Section 4.1 to the date of license of such New Release.
5. MASTER COPY
As soon as practicable but not later than five (5) business days after
the date of execution of a License/Product Schedule RSA shall deliver to OEM
one (1) copy of each of the RSA Object Code, the RSA Source Code and the User
Manual licensed hereunder and such other information, documentation and
instructions reasonably deemed necessary by RSA to enable OEM to perform its
obligations under this Agreement.
6. ADDITIONAL OBLIGATIONS OF OEM
6.1 Bundled Product Marketing. OEM is authorized to represent to
Distributors and End User Customers only such facts about the RSA Software as
RSA states in its published product descriptions, advertising and promotional
materials or as may be stated in other non-confidential written material
furnished by RSA.
6.2 Customer Support. OEM shall, at its expense, provide all support
for the Bundled Products to Distributors and End User Customers.
6.3 License Agreements. OEM shall cause to be delivered to each
Distributor and End User Customer a license agreement which shall contain, at a
minimum, substantially all of the limitations of rights and the protections for
RSA which are contained in Sections 2.3, 6.4.2, 6.6, 7.1, 7.2, 9.8 and 9.9 of
this Agreement and shall
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RSA Data Security, Inc.
OEM Master License Agreement
Page 7
prohibit Distributors and End User Customers pursuant to written agreements
from modifying, reverse engineering, decompiling or disassembling the RSA
Object Code or any part thereof. OEM shall use its reasonable best efforts to
ensure that all Distributors and End User Customers abide by the terms of such
agreements.
6.4 Confidentiality.
6.4.1 OEM acknowledges that in RSA's performance of its
duties hereunder RSA will communicate to OEM (or its designees) certain
confidential and proprietary information concerning the RSA Software, and
know-how, technology, techniques or marketing plans related thereto
(collectively, the "Know-How") all of which are confidential and proprietary
to, and trade secrets of, RSA. OEM agrees to hold all the RSA Software and
Know-How within its own organization and shall not, without specific written
consent of RSA or as expressly authorized herein, utilize in any manner,
publish, communicate or disclose any part of the RSA Software or Know-How to
third parties. This Section 6.4.1 shall impose no obligation on OEM with
respect to any Know-How which: (i) at the time of disclosure in writing is not
marked or stamped with a legend identifying it as "Company Private,"
"Proprietary," "Confidential" or a similar legend, or, within thirty (30) days
after oral disclosure, is not so identified in writing; (ii) is in the public
domain at the time disclosed by RSA; (iii) enters the public domain after
disclosure other than by breach of OEM's obligations hereunder or by breach of
another party's confidentiality obligations; or (iv) is shown by documentary
evidence to have been known by OEM prior to its receipt from RSA. OEM will
take such steps as are consistent with OEM's protection of its own confidential
and proprietary information (but will in no event exercise less than reasonable
care) to ensure that the provisions of this Section 6.4.1 are not violated by
OEM's End User Customers, Distributors, employees, agents or any other person.
6.4.2 OEM agrees not to remove or destroy any proprietary,
trademark or copyright markings or confidentiality legends placed upon or
contained within the RSA Source Code, RSA Object Code, User Manuals or any
related materials or documentation. OEM further agrees to insert and maintain:
(i) within every Bundled Product and any related materials or documentation a
copyright notice in the name of OEM; and (ii) within the splash screens, user
documentation, printed product collateral, product packaging and advertisements
for the Bundled Product, the appropriate RSA "Licensee Seal" from the form
attached as Exhibit "B" to this Agreement and a statement that the Bundled
Product contains the RSA Software. OEM shall not take any action which might
adversely affect the validity of RSA's proprietary, trademark or copyright
markings or ownership by RSA thereof, and shall cease to use the markings, or
any similar markings, in any manner on the expiration or other termination of
the license rights granted pursuant to Section 2.
6.4.3 OEM acknowledges the extreme importance of the
confidentiality and trade secret status of the RSA Source Code and OEM agrees,
in addition to complying with the requirements of Sections 6.4.1 and 6.4.2 as
they relate to the RSA Source Code, to: (i) inform any employee that is
granted access to all or any portion of the RSA Source Code of the importance
of preserving the confidentiality and trade secret status of the RSA Source
Code; and (ii) maintain a controlled, secure environment for the storage and
use of the RSA Source Code.
6.4.4 The placement of a copyright notice on any of the RSA
Software shall not constitute publication or otherwise impair the confidential
or trade secret nature of the RSA Software.
6.4.5 OEM acknowledges that the restrictions contained in this
Section 6.4 are reasonable and necessary to protect RSA's legitimate interests
and that any violation of these restrictions will cause irreparable damage to
RSA within a short period of time and OEM agrees that RSA will be entitled to
injunctive relief against each violation. OEM further agrees that all
confidentiality commitments hereunder shall survive the expiration or
termination for any reason of this Agreement or the license rights granted
pursuant to Section 2.
6.5 Federal Government Sublicense. Any sublicense of a Bundled
Product acquired from OEM or any Distributor under a United States government
contract shall be subject to restrictions as set forth in subparagraph
(c)(1)(ii) of Defense Federal Acquisition Regulations Supplement (DFARs)
Section 252.227-7013 for Department of Defense contracts and as set forth in
Federal Acquisition Regulations (FARs) Section 52.227-19 for civilian agency
contracts or any successor regulations. OEM agrees that any such sublicense
shall set forth all of such restrictions and the tape or diskette label for the
Bundled Product and any documentation delivered with
<PAGE> 8
RSA Data Security, Inc.
OEM Master License Agreement
Page 8
the Bundled Product shall contain a restricted rights legend conforming to the
requirements of the current, applicable DFARs or FARs.
6.6 Notices. OEM shall immediately advise RSA of any legal notices
served on OEM which might affect RSA, the RSA Software or any Bundled Products.
6.7 INDEMNITY. OEM EXPRESSLY INDEMNIFIES AND HOLDS HARMLESS RSA,
ITS SUBSIDIARIES, AGENTS AND AFFILIATES FROM: (i) ANY AND ALL LIABILITY OF ANY
KIND OR NATURE WHATSOEVER TO OEM'S END USER CUSTOMERS, DISTRIBUTORS AND THIRD
PARTIES WHICH MAY ARISE FROM ACTS OF OEM OR FROM THE LICENSE OF BUNDLED
PRODUCTS BY OEM OR ANY DOCUMENTATION, SERVICES OR ANY OTHER ITEM FURNISHED BY
OEM TO ITS END USER CUSTOMERS OR DISTRIBUTORS; AND (ii) ANY LIABILITY ARISING
IN CONNECTION WITH AN UNAUTHORIZED REPRESENTATION OR ANY MISREPRESENTATION OF
FACT MADE BY OEM OR ITS AGENTS, EMPLOYEES OR DISTRIBUTORS TO ANY PARTY WITH
RESPECT TO THE RSA SOFTWARE OR ANY BUNDLED PRODUCTS.
7. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY; INTELLECTUAL PROPERTY
INDEMNITIES
7.1 DISCLAIMER. EXCEPT FOR THE EXPRESS LIMITED WARRANTY PROVIDED IN
SECTION 4.1, THE RSA SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY WARRANTY
WHATSOEVER. RSA DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AS TO
ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. RSA DISCLAIMS ANY WARRANTY OR REPRESENTATION
TO ANY PERSON OTHER THAN OEM WITH RESPECT TO THE RSA SOFTWARE. OEM SHALL NOT,
AND SHALL TAKE ALL MEASURES NECESSARY TO INSURE THAT ITS AGENTS AND EMPLOYEES
DO NOT, MAKE OR PASS THROUGH ANY SUCH WARRANTY ON BEHALF OF RSA TO ANY
DISTRIBUTOR, END USER CUSTOMER OR OTHER THIRD PARTY.
7.2 LIMITATION OF LIABILITY. IN NO EVENT WILL RSA BE LIABLE TO OEM
(OR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM OEM) FOR INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE
TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO
LOST PROFITS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION, EVEN IF
RSA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO
CIRCUMSTANCES SHALL RSA'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS
AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY OEM TO RSA HEREUNDER, REGARDLESS OF
WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE.
7.3 Proprietary Rights Infringement by RSA.
7.3.1 Subject to the limitations set forth below, RSA, at its
own expense, shall: (i) defend, or at its option settle, any claim, suit or
proceeding against OEM on the basis of infringement of any United States
patent, copyright or trade secret in the field of cryptography by the
unmodified Licensed Software as delivered by RSA (excluding the Interface
Modifications) or any claim that RSA has no right to license the Licensed
Software hereunder; and (ii) pay any final judgment entered or settlement
against OEM on such issue in any such suit or proceeding defended by RSA. RSA
shall have no obligation to OEM pursuant to this Section 7.3.1 unless: (A) OEM
gives RSA prompt written notice of the claim; (B) RSA is given the right to
control and direct the investigation, preparation, defense and settlement of
the claim; and (C) the claim is based on OEM's use of the unmodified Licensed
Software in accordance with this Agreement.
7.3.2 If RSA receives notice of an alleged infringement, RSA
shall have the right, at its sole option, to obtain the right to continue use
of the Licensed Software or to replace or modify the Licensed Software so that
it is no longer infringing. If neither of the foregoing options is reasonably
available to RSA, then the license rights granted pursuant to Section 2 may be
terminated at the option of either party hereto without further obligation or
liability except as provided in Sections 7.3.1 and 8.3 and in the event of such
termination, RSA shall refund the License Fees paid by OEM hereunder less
depreciation for use assuming straight line depreciation over a five (5)-year
useful life.
<PAGE> 9
RSA Data Security, Inc.
OEM Master License Agreement
Page 9
7.3.3 THE RIGHTS AND REMEDIES SET FORTH IN SECTIONS 7.3.1 AND
7.3.2 CONSTITUTE THE ENTIRE OBLIGATION OF RSA AND THE EXCLUSIVE REMEDIES OF OEM
CONCERNING RSA'S PROPRIETARY RIGHTS INFRINGEMENT.
7.4 Proprietary Rights Infringement by OEM.
7.4.1 Subject to the limitations set forth below, OEM, at its
own expense, shall: (i) defend, or at its option settle, any claim, suit or
proceeding against RSA on the basis of infringement of any United States
patent, copyright or trade secret by any Bundled Product (excluding the
unmodified RSA Software) or the Interface Modifications; and (ii) pay any final
judgment entered or settlement against RSA on such issue in any such suit or
proceeding defended by OEM. OEM shall have no obligation to RSA pursuant to
this Section 7.4.1 unless: (A) RSA gives OEM prompt written notice of the
claim; and (B) OEM is given the right to control and direct the investigation,
preparation, defense and settlement of the claim.
7.4.2 If OEM receives notice of an alleged infringement, OEM
shall have the right, at its sole option, to obtain the right to continued use
of the Interface Modifications or the Bundled Product or to replace or modify
the Interface Modifications or Bundled Product so that they are no longer
infringing. If neither of the foregoing options is reasonably available to
OEM, then the license rights granted pursuant to Section 2 of this Agreement
may be terminated at the option of either party hereto without further
obligation or liability except as provided in Sections 7.4.1 and 8.3, and in
the event of such termination, RSA shall retain all License Fees paid by OEM
hereunder.
7.4.3 THE RIGHTS AND REMEDIES SET FORTH IN SECTIONS 7.4.1 AND
7.4.2 CONSTITUTE THE ENTIRE OBLIGATION OF OEM AND THE EXCLUSIVE REMEDIES OF RSA
CONCERNING OEM'S PROPRIETARY RIGHTS INFRINGEMENT.
8. TERM AND TERMINATION
8.1 Term. The license rights granted pursuant to Section 2 shall be
effective with respect to each License/Product Schedule as of the date thereof
and shall continue in full force and effect for each item of Licensed Software
for an initial period as set forth on each License/Product Schedule unless
sooner terminated pursuant to the terms of this Agreement. Such license rights
shall be automatically renewed for successive one (1)-year terms unless either
party notifies the other party in writing of its intention not to renew at
least sixty (60) days prior to the expiration of the then-current term. Such
non-renewal option may be exercised by either party with or without cause.
Notwithstanding the foregoing, either party shall be entitled to terminate all
the license rights granted pursuant to this Agreement at any time on written
notice to the other in the event of a default by the other party and a failure
to cure such default within a period of thirty (30) days (five (5) days if the
default involves the payment of money) following receipt of written notice
specifying that a default has occurred.
8.2 Insolvency. In the event that either party is adjudged
insolvent or bankrupt, or upon the institution of any proceedings by or against
either party seeking relief, reorganization or arrangement under any laws
relating to insolvency, or upon any assignment for the benefit of creditors, or
upon the appointment of a receiver, liquidator or trustee of any of either
party's property or assets, or upon the liquidation, dissolution or winding up
of either party's business, then and in any such events all the license rights
granted pursuant to this Agreement may immediately be terminated by the other
party upon giving written notice.
8.3 Disposition of RSA Software and User Manuals on Termination.
Upon the expiration or termination pursuant to this Section 8 of the license
rights granted pursuant to Section 2, the remaining provisions of this
Agreement (including without limitation the confidentiality provisions of
Section 6.4) shall remain in full force and effect, and OEM shall cease making
copies of, using or licensing the RSA Software and Bundled Products excepting
only such copies of Bundled Products necessary to fill orders placed with OEM
prior to such expiration or termination. OEM shall destroy all copies of the
RSA Software and Bundled Products not subject to any then-effective license
agreement with an End User Customer and all information and documentation
provided by RSA to OEM (including all Know-How), other than such copies of the
RSA Object Code, the User Manual and the Bundled Products as are necessary to
enable OEM to perform its continuing support obligations in accordance with
Section 6.2, if any, and except as provided in the next following sentence. If
OEM has licensed
<PAGE> 10
RSA Data Security, Inc.
OEM Master License Agreement
Page 10
Source Code hereunder, for a period of one (1) year after the date of
expiration or termination of the license rights granted under this Agreement,
OEM may retain one (1) copy of the RSA Source Code and is hereby licensed for
such term to use such RSA Source Code solely for the purpose of supporting End
User Customers of Bundled Products. Upon the expiration of such one (1)-year
period, OEM shall destroy or return to RSA such single copy of the RSA Source
Code.
9. MISCELLANEOUS PROVISIONS
9.1 Governing Laws. IT IS THE INTENTION OF THE PARTIES HERETO THAT
THE INTERNAL LAWS OF THE STATE OF CALIFORNIA, U.S.A. (IRRESPECTIVE OF ITS
CHOICE OF LAW PRINCIPLES) SHALL GOVERN THE VALIDITY OF THIS AGREEMENT, THE
CONSTRUCTION OF ITS TERMS, AND THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS
AND DUTIES OF THE PARTIES HERETO. THE PARTIES AGREE THAT THE UNITED NATIONS
CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY TO
THIS AGREEMENT. THE PARTIES HEREBY AGREE THAT ANY SUIT TO ENFORCE ANY
PROVISION OF THIS AGREEMENT OR ARISING OUT OF OR BASED UPON THIS AGREEMENT OR
THE BUSINESS RELATIONSHIP BETWEEN THE PARTIES HERETO SHALL BE BROUGHT IN THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OR THE
SUPERIOR OR MUNICIPAL COURT IN AND FOR THE COUNTY OF SAN MATEO, CALIFORNIA,
U.S.A. Each party hereby agrees that such courts shall have exclusive in
personam jurisdiction and venue with respect to such party, and each party
hereby submits to the exclusive in personam jurisdiction and venue of such
courts.
9.2 Binding upon Successors and Assigns. Except as otherwise provided
herein, this Agreement shall be binding upon, and inure to the benefit of, the
successors, executors, heirs, representatives, administrators and assigns of
the parties hereto; provided, however, that this Agreement shall not be
assignable by OEM, by operation of law or otherwise, without the prior written
consent of RSA, which shall not be unreasonably withheld. Any such purported
assignment or delegation without RSA's written consent shall be void and of no
effect.
9.3 Severability. If any provision of this Agreement, or the
application thereof, shall for any reason and to any extent, be invalid or
unenforceable, the remainder of this Agreement and application of such
provision to other persons or circumstances shall be interpreted so as best to
reasonably effect the intent of the parties hereto. IT IS EXPRESSLY UNDERSTOOD
AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A
LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES IS
INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION
AND TO BE ENFORCED AS SUCH.
9.4 Entire Agreement. This Agreement and the exhibits and schedules
hereto constitute the entire understanding and agreement of the parties hereto
with respect to the subject matter hereof and supersede all prior and
contemporaneous agreements or understandings between the parties.
9.5 Amendment and Waivers. Any term or provision of this Agreement
may be amended, and the observance of any term of this Agreement may be waived,
only by a writing signed by the party to be bound thereby.
9.6 Attorneys' Fees. Should suit be brought to enforce or interpret
any part of this Agreement, the prevailing party shall be entitled to recover,
as an element of the costs of suit and not as damages, reasonable attorneys'
fees to be fixed by the court (including without limitation, costs, expenses
and fees on any appeal).
9.7 Notices. Whenever any party hereto desires or is required to
give any notice, demand, or request with respect to this Agreement, each such
communication shall be in writing and shall be effective only if it is
delivered by personal service or mailed, United States certified or registered
mail, postage prepaid, return receipt requested, addressed as follows:
RSA: To the address set forth on page 1
If to RSA, with a copy to:
Timothy Tomlinson, Esq.
Tomlinson Zisko Morosoli & Maser
200 Page Mill Road, Second Floor
Palo Alto, California 94306
OEM: To the address set forth on page 1
<PAGE> 11
RSA Data Security, Inc.
OEM Master License Agreement
Page 11
Such communications shall be effective when they are received by the
addressee thereof; but if sent by certified or registered mail in the manner
set forth above, they shall be effective five (5) days after being deposited in
the United States mail in the contiguous 48 states or ten (10) days after being
deposited in the United States mail in any other location. Any party may
change its address for such communications by giving notice thereof to the
other party in conformity with this Section.
9.8 Foreign Reshipment Liability. THIS AGREEMENT IS EXPRESSLY MADE
SUBJECT TO ANY LAWS, REGULATIONS, ORDERS OR OTHER RESTRICTIONS ON THE EXPORT
FROM THE UNITED STATES OF AMERICA OF THE RSA SOFTWARE OR BUNDLED PRODUCTS OR OF
INFORMATION ABOUT SUCH RSA SOFTWARE OR BUNDLED PRODUCTS WHICH MAY BE IMPOSED
FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA.
NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, OEM SHALL
NOT EXPORT OR REEXPORT, DIRECTLY OR INDIRECTLY, ANY RSA SOFTWARE OR BUNDLED
PRODUCTS OR INFORMATION PERTAINING THERETO TO ANY COUNTRY FOR WHICH SUCH
GOVERNMENT OR ANY AGENCY THEREOF REQUIRES AN EXPORT LICENSE OR OTHER
GOVERNMENTAL APPROVAL AT THE TIME OF EXPORT OR REEXPORT WITHOUT FIRST OBTAINING
SUCH LICENSE OR APPROVAL.
9.9 Trade Names, Logos; Publicity. By reason of this Agreement or the
performance hereof, OEM shall acquire no rights of any kind in any RSA
trademark, trade name, logo or product designation under which the RSA Software
was or is marketed and OEM shall not make any use of the same for any reason
except as expressly authorized by this Agreement or otherwise authorized in
writing by RSA. RSA shall have the right during the term of the license rights
granted hereunder to disclose to third parties that OEM is an OEM of the RSA
Software and that any publicly-announced Bundled Product incorporates the RSA
Software. OEM shall provide to RSA, solely for RSA's display purposes, one (1)
working copy of each Bundled Product which consists solely of computer software
and one (1) working or non-working unit of any hardware product in which is
incorporated a Bundled Product which consists of an integrated circuit or other
hardware.
9.10 Remedies Non-Exclusive. Any remedy provided for in this Agreement
is deemed cumulative with, and not exclusive of, any other remedy provided for
in this Agreement or otherwise available at law or in equity. The exercise by
a party of any remedy shall not preclude the exercise by such party of any
other remedy.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
OEM:
SPYGLASS, INC.
By: /s/ Douglas P. Colbeth
-------------------------------------------------
Printed Name: Douglas P. Colbeth
-----------------------------------------
Title: President and CEO
-----------------------------------------------
RSA DATA SECURITY, INC.
By: /s/ D. James Bidzos
---------------------------------------------------
Printed Name: D. James Bidzos
------------------------------------------
Title: President
------------------------------------------------
<PAGE> 12
<TABLE>
<CAPTION>
<S> <C>
License/Product Schedule Number:
---------------------------------
Date of this License/Product Schedule:
---------------------------
EXHIBIT "A"
LICENSE/PRODUCT SCHEDULE
OEM:
Spyglass, Inc.
- --------------------------------------------------------
OEM Master License Agreement Number:
- --------------------------------------------------------
SOURCE CODE LICENSE
-------------------
Date of OEM Master License Agreement:
BSAFE
- --------------------------------------------------------
YES [ ] NO [X]
This License/Product Schedule Amends TIPEM
Schedules Dated:
N/A YES [ ] NO [X]
- ----------------------------------------------------------
Term of Agreement for this Bundled Product:
Perpetual
- --------------------------------------------------------
Bundled Product:
OEM-enhanced Mosaic Web browser clients and OEM Web
- ---------------------------------------------------
browser servers and any other Spyglass
- --------------------------------------------------------
Web products.
- --------------------------------------------------------
RSA Software:
BSAFE, TIPEM
- --------------------------------------------------------
RSA Software Distribution Method:
Tangible Media or
- ------------
X Electronic Transmission
- ------------
</TABLE>
<PAGE> 13
OBJECT CODE LICENSES
LICENSED SOFTWARE AND FUNCTIONALITY FOR THIS BUNDLED PRODUCT:
<TABLE>
<CAPTION>
RIGHT TO INCLUDE LICENSED SOFTWARE DESCRIBE
OBJECT FUNCTIONALITY LICENSED
CODE FOR BUNDLED RESTRICTION FUNCTIONALITY
PRODUCT
<S> <C> <C> <C> <C> <C>
BSAFE YES NO YES NO
RSA Public Key Cryptosystem [X] [ ] [X] [ ] */
-
Diffie-Hellman Key [X] [ ] [X] [ ] */
Negotiation
Data Encryption Standard (DES) [X] [ ] [X] [ ] */
-
Extended Data Encryption [X] [ ] [X] [ ] */
Standard (DESX)
RC2 Variable-Key Size [X] [ ] [X] [ ] */
Symmetric Block Cipher
RC4 Variable-Key Size [X] [ ] [X] [ ] */
Symmetric Stream Cipher
MD Hashing Algorithm [X] [ ] [X] [ ] */
-
MD2 Hashing Algorithm [X] [ ] [X] [ ] */
-
MD5 Hashing Algorithm [X ] [ ] [X] [ ] */
-
TIPEM (all set forth below) [X] [ ] [X] [ ] */
-
RSA Public Key Cryptosystem
Data Encryption Standard (DES)
RC2 Variable Key Size
Symmetric Block Cipher
MD2 Hashing Algorithm
MD5 Hashing Algorithm
</TABLE>
*/ Restricted to use solely for any set of security services that provides
privacy and authentication for hypertext transfer protocol (HTTP), whether by
implementing currently-existing protocols (i.e., secure hypertext transfer
protocol (S-HTTP) and/or secure socket layer (SSL)-implemented HTTP) or by
implementing successor protocols that provide the same security services as
currently-existing protocols and for security services for FTP and NEWS.
Specifically excluded from the grant of rights hereunder is any security
service provided to any type of electronic mail application.
<PAGE> 14
Confidential material omitted and
filed separately with the Securities
and Exchange Commission. Asterisks
denote such omissions.
LICENSE AND MAINTENANCE FEES
- ----------------------------
Object Code License Fees:
- -------------------------
Percentage (%) of Net Sales: *********
Prepayment of License Fees:
- ---------------------------
**********
Rights to Sublicense:
- ---------------------
Notwithstanding any provisions of Section 2 to the contrary, RSA
further hereby grants to OEM a non-exclusive, non-transferable, non-assignable
(except as permitted in Section 9.2) license in the Territory to SPYGLASS, INC.
sublicense its rights granted in Section 2.2, as limited by Section 2.3, of the
Agreement with respect to the RSA Object Code as part of the Bundled Product
By: /s/ Douglas P. Colbeth to OEM's licensees ("OEM Sublicensees") with
respect to (a) such OEM Sublicensees'own products incorporating Printed Name:
Douglas P. Colbeth substantially all of the functionality of the Bundled
Product with substantial functional or value Title: President and CEO
enhancement added thereto, and (b) such OEM Sublicensees' own
privately-labelled products consisting of the Bundled Product with no
modifications AGREED AND ACCEPTED: other than minor packaging changes
(collectively, "Sublicensee Products"), subject to all of the RSA DATA
SECURITY, INC. following conditions: (i) on or before the thirtieth (30th) day
after the end of each calendar quarter, OEM will provide RSA with a list of all
OEM Sublicensees, By: /s/ D. James Bidzos Second Tier Sublicensees and Third
Tier Sublicensees (as hereinafter defined) licensed during each such Printed
Name: D. James Bidzos quarter, specifying for each OEM Sublicensee, Second Tier
Sublicensee and Third Tier Sublicensee the Title: President Sublicensee
Products; (ii) all such sublicenses will be granted in a signed writing which
confers no greater rights and is no less protective of RSA and the RSA Software
than the Agreement, and RSA shall be an express third party beneficiary of such
sublicense agreements; (iii) OEM shall use its commercially reasonable efforts
to enforce the provisions of such sublicenses as they relate to RSA and the RSA
Software; (iv) the RSA security facilities provided by the Bundled Product
shall only be accessible within the Sublicensee Products; (v) the OEM
Sublicensees to whom such rights are sublicensed shall have the right, in turn,
to sublicense the rights sublicensed to them by OEM to their licensees ("Second
Tier Sublicensees"), and the Second Tier Sublicensees shall have the right, in
turn, to sublicense the rights sublicensed to them by OEM Sublicensees to their
licensees ("Third Tier Sublicensees"), in each case subject to all of the
conditions in this paragraph, but Third Tier Sublicensees shall have no further
right to sublicense such rights (provided, that nothing in this clause (v)
shall prevent any OEM Sublicensee, Second Tier Sublicensee or Third Tier
Sublicensee from distributing Sublicensee Products through one or more
Distributors); and (vi) OEM shall report to RSA in its reports delivered
pursuant to Section 3.5 of the Agreement the number of copies of Sublicensee
Products which are distributed by all OEM Sublicensees, Second Tier
Sublicensees and Third Tier Sublicensees and OEM's Net Sales Price with respect
thereto, and shall pay RSA License Fees pursuant to Section 3.3 of the
Agreement based on such Net Sales Price and/or number of copies distributed, as
applicable. Any rights of any OEM Sublicensee sublicensed by OEM shall survive
any termination of the Agreement, so long as the applicable OEM Sublicensee is
not in breach of its sublicense agreement, provided, however, that after any
such termination, all obligations of OEM Sublicensees under their sublicense
agreements shall be owed directly to RSA rather than to OEM and provided,
further, that RSA shall not assume any obligations of OEM under such sublicense
agreements.
Present Annual Maintenance Fee for this
- ---------------------------------------
License/Product Schedule:
- -------------------------
********
SPECIAL TERMS AND CONDITIONS
- ----------------------------
The Agreement is amended as set forth below with respect to the Bundled
Products covered by this License/Product Schedule:
RSA Licensee Seals. Notwithstanding the provisions to Section 6.4.2 of
the Agreement and phrase (ii) of the paragraph above entitled "Rights to
Sublicense," OEM shall have the right to waive, on a temporary basis, the
requirement that any OEM Sublicensee include the appropriate RSA Licensee Seal
on its product packaging, but only if and to the extent that such OEM
Sublicensee has in its inventory existing packaging that does not contain the
RSA Licensee Seal. Nevertheless, such OEM Sublicensee shall be required to
include the RSA Licensee Seal in its next printing of its product packaging.
<PAGE> 15
THE PROVISIONS OF THIS LICENSE/PRODUCT SCHEDULE ARE PROVIDED AS A BASIS
OF DISCUSSION BETWEEN OEM AND RSA AND WILL BECOME BINDING UPON THE PARTIES
ONLY IF THEY HAVE EXECUTED A BSAFE/TIPEM OEM MASTER LICENSE AGREEMENT AND HAVE
INDICATED THEIR ACCEPTANCE OF THE TERMS CONTAINED IN THIS LICENSE/PRODUCT
SCHEDULE BY THEIR SIGNATURES BELOW ON OR BEFORE AUGUST 8, 1995.
OEM:
SPYGLASS, INC.
By: /s/ Douglas P. Colbeth
------------------------------------------
Printed Name: Douglas P. Colbeth
-------------------------------
Title: President and CEO
--------------------------------------
AGREED AND ACCEDPTED:
RSA DATA SECURITY, INC.
BY: /S/ D. James Bidzos
------------------------------------------
Printed Name: D. James Bidzos
-------------------------------
Title: President
--------------------------------------
<PAGE> 16
Example of reporting requirements for paragraph (I) under section "Rights to
Sublicense":
<TABLE>
<S> <C>
OEM=Spyglass
Company A = OEM customer of Spyglass (OEM Sublicense)
Company B = OEM customer of Company A (Second Tier Sublicensee)
Company C = OEM customer of Company B (Third Tier Sublicensee)
Company A sublicenses Product X which includes the Spyglass "Bundled Product".
Company B sublicenses Product Y which includes Product X.
Company C sublicenses Product Z which includes Product Z.
</TABLE>
In the above situation, the names (i.e. Company A, Company B and Company C)
must be reported to RSA.
<PAGE> 17
EXHIBIT "B"
LICENSEE SEALS, LOGOS, AND TRADEMARKS
RSA encourages its licensees to use RSA seals, logos and trademarks on licensee
product data sheets, packaging and advertising...but it is important to use
them properly.
When using RSA trademarks in ads, product packaging, documentation or
collateral materials, be sure to use the correct trademark designator: (R) fpr
registered trademarks, and (TM) for claimed or pending trademarks. RSA
trademarks and their correct designators are depicted below. To ensure proper
usage, please allow RSA Marketing to review any material using or mentioning
RSA trademarks prior to general release - we promise to give you a quick
turnaround!
Using these licensee seals (and the nearly identical seals that identify other
RSA algorithm implementations like RC2 and RC4) does not require written
permission; in fact, we encourage you to use them on your product packaging and
collateral!
(Chart showing six RSA seals)
However, please obtain written permission before using these corporate logos.
(Four RSA logos)
RSA Digital Signature(TM), RSA Digital Envelope(TM)
RC2(TM) Symmetric Block Cipher, RC4(TM) Symmetric Stream Cipher
BSAFE(TM), TIPEM(TM)
Certificate Issuing System(TM), Co-Issuer Tool(TM)
MailSafe(TM), RSA Secure(TM)
RSA Sign(R), RSA Check(R)
Because some things are better left unread.(R)
The keys to privacy and authenticaion.(R)
RSA Public Key Cryptosystem(TM)
MD(TM), MD2(TM), MS4(TM), MD5(TM)
<PAGE> 18
EXHIBIT "C"
SPECIAL TERMS AND CONDITIONS
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<S> <C>
OEM: Spyglass, Inc.
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Master License Agreement Number: 0895-SPY-O-MLA-1
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Master License Agreement Date: 8/10/95
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Exhibit "C" Date: 8/10/95
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THE OEM MASTER LICENSE AGREEMENT between RSA Data Security, Inc. and the OEM set forth above dated as of the
date set forth above ("Agreement") is amended as set forth below.
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1. Definitions. Capitalized terms used and not otherwise defined in this Exhibit "C" shall have the
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meanings designated for such terms in the Agreement.
2. Amendments to Agreement. The following provisions of the Agreement, referenced by the applicable
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Section numbers in the Agreement, are hereby amended as follows:
2.1 Section 1.2. Section 1.2 is amended by adding the following language at the end of the first
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sentence: "...or another Distributor."
2.2 Section 1.8. Section 1.8 is amended by adding the words "provided by such Licensed Software
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which is..." after the word "functionality."
2.3 Section 1.12. Section 1.12 is amended by deleting the words "which is to be bundled with the
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Licensed Software or..."
2.4 Section 2.2. Section 2.2 is amended by adding the words "...(except as permitted in Section
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9.2)..." after the word "non-assignable" in the second sentence.
2.5 Section 2.2.2. Section 2.2.2 is replaced in its entirety with the following:
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2.2.2 Reproduce, have reproduced, sublicense and otherwise distribute the
RSA Object Code implementing the License Functionality and the User Manual
incorporated in a Bundled Product.
2.6 Section 2.3.3. Section 2.3.3 is amended by replacing the words "included within" with the
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words "derived from."
2.7 Section 2.3.4. Section 2.3.4 is amended by replacing the word "of" in the sixth line with
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the words "derived from."
2.8 Section 2.3.5. A new Section 2.3.5 is added, as follows:
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2.3.5 Nothing in Section 2.3 shall be construed to limit OEM's right to
obtain from other vendors or independently develop technology, whether or not
similar to the RSA Software; provided, however, that OEM shall not take any action
which would infringe the patent, copyright, trade
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<PAGE> 19
Exhibit "C"
Page 2
secret or other intellectual property rights of RSA or
violate any other provisions of this Agreement.
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2.9 Section 3.1.2.2. Section 3.1.2.2 is amended by deleting all references to "Distributor,"
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other than the first reference in the Section.
2.10 Sections 3.1.3, 3.3 and 3.6. The third sentence in Sections 3.1.3 and 3.3 and the fourth
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sentence in Section 3.6 are amended by deleting the words "one-half (1/2) of" and by replacing the word "may" with the
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word "will."
2.11 Section 3.2. Section 3.2 is amended by deleting the words "United States or California."
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2.12 Section 3.5. Section 3.5 is amended by replacing the words "thirtieth (30th)" with the words
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"forty-fifth (45th)."
2.13 Section 4.2. Section 4.2 is amended by adding the following sentence at the end thereof:
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"In the event of such notice, if RSA has made arrangements for continuing maintenance services to be provided generally
to its other licensees, RSA will make such arrangements available to OEM."
2.14 Section 4.4.2. Section 4.4.2 is amended by adding the following words after the word
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"practicable" in the fourth to last line: "...after receipt of such report."
2.15 Section 6.4.1. Section 6.4.1 is amended by deleting the word "or" at the end of subpart
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(iii) and by adding the language "...; (v) is independently developed by employees of OEM who have not had access to the
RSA Source Code or the Know-How; or (vi) consists solely of the RSA Object Code and the User Manual sublicensed or
otherwise distributed in accordance with this Agreement" before the period at the end of subpart (iv).
2.16 Section 6.7. Section 6.7 is amended by adding the words "(OTHER THAN LIABILITY ATTRIBUTABLE
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TO THE UNMODIFIED RSA SOFTWARE)" after the word "DISTRIBUTORS" in the twelfth line.
2.17 Section 7.3.1. Section 7.3.1 is amended by adding the word "..., trademark" after the word
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"copyright" in the sixth and seventh lines, by deleting the words "in the field of cryptography" in the sixth line and
by adding the words "...Licensee Seal, unmodified..." after the words "by the unmodified" in the seventh line. Section
7.3.1 is further amended by inserting the words "...or the Licensee Seal" after the words "Licensed Software" in the
tenth line and by inserting the words "...or the unmodified Licensee Seal..." after the words "Licensed Software" in the
twentieth line thereof.
2.18 Section 7.3.2. Section 7.3.2 is amended by adding the words "... or Licensee Seal, as
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applicable, ..." after the words "Licensed Software" in both the fourth and fifth lines.
2.19 Section 7.4.2. Section 7.4.2 is deleted in its entirety. Section 7.4.3 is renumbered
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accordingly.
2.20 Section 8.1. Section 8.1 is amended by adding the following language at the beginning of the
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second sentence: "Unless a perpetual term is specified in the applicable License/Product Schedule, ...."
2.21 Section 9.1. Section 9.1 is amended by deleting the last two sentences.
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2.22 Section 9.7. Section 9.7 is amended by inserting the following before the last paragraph
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thereof:
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39567.6
<PAGE> 20
Exhibit "C"
Page 3
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2.22 Section 9.7. Section 9.7 is amended by inserting
the following before the last paragraph thereof:
If to OEM with a copy to:
Michael J. Bevilacqua
Hale and Dorr
60 State Street
Boston, MA 02109
2.23 Section 9.2. The first two sentences of Section 9.2 are replaced in their entirety with the
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following:
Except as otherwise provided herein, this Agreement shall be binding upon, and
inure to the benefit of, the successors, executors, heirs, representatives,
administrators and assigns of the parties hereto. This Agreement shall not be
assignable by OEM, by operation of law or otherwise, without the prior written
consent of RSA, which shall not be unreasonably withheld; provided, however, that
RSA's consent shall not be required (if RSA is given prompt notice) for an
assignment of this Agreement resulting from a merger, reorganization,
reincorporation or other acquisition of OEM or from a buyout of the Bundled Product
line, so long as the acquiror is creditworthy and is not a direct competitor of
RSA's, and so long as such assignment would not have a material adverse economic
impact on RSA's business.
3. Effect of Amendment. This Exhibit "C" is an amendment to the Agreement. Except as expressly amended
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above, the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Exhibit "C" as of the date set forth above.
OEM:
SPYGLASS, INC. RSA DATA SECURITY, INC.
By: /s/ Douglas P. Colbeth By: /s/ D. James Bidzos
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Printed Name:. Douglas P. Colbeth Printed Name: D. James Bidzos
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Title: President and CEO Title: President
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<PAGE> 21
EXHIBIT "D"
LIST OF APPROVED COUNTRIES FOR SUBLICENSING
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Abu Dhabi Kuwait
Argentina Liechtenstein
Australia Luxembourg
Austria Malaysia
Belgium Mexico
Bolivia Netherlands
Brazil New Zealand
Canada Norway
Chile Panama
Colombia Paraguay
Costa Rosa Peru
Denmark Philippines
Ecuador Portugal
Finland Saudi Arabia
France Singapore
Germany South Africa
Greece Spain
Hong Kong Sweden
India Switzerland
Indonesia Taiwan
Ireland Turkey
Israel United Kingdom
Italy United States
Japan Uruguay
Korea (South) Venezuela
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