NETSCAPE COMMUNICATIONS CORPORATION
501 E. Middlefield Rd.
Mountain View, CA. 94043
May 16, 1997
Mr. David Roux
Oracle Corporation
500 Oracle Parkway
Redwood Shores, California 94065
Mr. Jerry Baker Dr. Wei Yen
Network Computer, Inc. Navio Communications, Inc.
477100 Marine Parkway, 2nd Floor 870 W. Maude Ave.
Redwood Shores, California 94065 Sunnyvale, California
94086
RE: CERTAIN AGREEMENTS
Gentlemen:
This letter, when countersigned by you below, will reflect our
agreement regarding certain aspects of the acquisition of Navio Communications,
Inc. (formerly 'TVsoft Corporation') ('Navio') by Network Computer, Inc.
('NCI'). Netscape Communications Corporation ('Netscape'), NCI, and Oracle
Corporation ('Oracle') are entering into a Merger Agreement ('Merger Agreement')
concurrently with the signing of this letter. Oracle and Netscape are parties to
that certain OEM License Agreement dated OCTOBER 17, 1996 ('OEM License
Agreement'). Netscape and Navio are parties to that certain Source Code License
Agreement dated July 9, 1996 ('Navio Agreement') and a Trademark Agreement
('Trademark Agreement'), also of such date.
Capitalized terms not defined herein shall have the meanings assigned
to them under the OEM Agreement, the Navio Agreement and the Trademark
Agreement, as indicated. This letter agreement shall become effective at the
Effective Time (as such term is defined in the Merger Agreement). Before the
Effective Time, Netscape and Navio shall make no amendment to the Navio
Agreement without Oracle and NCI's written consent, and no amendment thereto
shall be valid and legally binding, except as set forth on Exhibit A hereto.
1. ASSIGNMENT OF NAVIO AGREEMENT. Netscape consents to the assignment
of the Navio Agreement to NCI immediately upon the Effective Time. NCI hereby
accepts assignment of the Navio Agreement and agrees to perform all the
obligations of Navio thereunder after the Effective Time. Netscape hereby agrees
to fully cooperate with NCI, including promptly executing all documents
reasonably requested by NCI, to effect the rights and assignments agreed to
hereunder.
2. DIVESTITURE EVENT. The acquisition of Navio by NCI is a 'Divestiture
Event,' as that term is defined in Section 1.8 of the Navio Agreement. Because a
Divestiture Event has occurred, certain provisions of Navio Agreement become
effective, including without limitation of the following: (i) delivery of
Netscape Technology Updates under Section 5.2 is no longer required;(ii) each
party's Marketing Right in Section 8.2 and 8.3, respectively, shall cease to
apply (the licenses granted to Netscape under the Navio Agreement are thereby
nonexclusive); and (iii) the grant of license to Netscape in Section 4 becomes
effective, and Navio has certain delivery obligations (see paragraph 4 below).
May 16, 1997
Page 2
3. NETSCAPE TECHNOLOGY UPDATES. Notwithstanding the fact that a
Divestiture Event has occurred and that therefore the Update Period has ended,
(i) before the Effective Time Netscape shall continue to deliver Netscape
Technology Updates to Navio pursuant to the Navio Agreement and (ii) Netscape
shall deliver the source code for Netscape navigator 4.0 ('4.0 Code') to NCI
within two (2) weeks following Netscape's release of Netscape navigator 4.0, or
whenever an unrelated third party receives such code, whichever is sooner. Until
termination of the OEM Agreement, but not later than October 17, 1999 (in either
event, the 'OEM Termination Date'). Netscape shall also deliver to NCI the
source code for any and all Maintenance Updates and Minor Updates (defined in
Section 1.13 of the Navio Agreement) to the 4.0 Code (collectively, the '4.0
Updates'). Such 4.0 Code and 4.0 Updates shall be deemed Netscape Technology
Updates and Netscape Technology under the Navio Agreement. Except for such 4.0
Updates, Netscape shall have no obligation to deliver any Netscape Technology to
NCI after its delivery of such 4.0 Code. NCI shall have the right at any time to
direct Netscape not to deliver any further Netscape Technology Updates to NCI.
The date of the delivery of the final 4.0 Update constituting a Minor Update is
hereinafter referred to as the 'Final Update Delivery Date.'
As used herein, the term 'Netscape navigator 4.0' means that product to
be introduced by Netscape as Netscape Navigator 4.0, which product does not
include messaging or mail functions.
4. NCI DELIVERY OBLIGATIONS.
a. TVSOFT TECHNOLOGY. Pursuant to Section 5.3 of the Navio
Agreement, within thirty (30) days of the Effective Time, NCI shall deliver to
Netscape one (1) copy of all TVsoft Technology (as defined in the Navio
Agreement) and the NCI Version (as defined in paragraph 7 below), existing as of
the Effective Time, including source code and object code versions thereof (the
'First Delivery'). In addition, within sixty (60) days of the delivery of the
4.0 Code to NCI, NCI shall deliver to Netscape any TVsoft Technology and NCI
Version that has been created since the First Delivery. Thereafter, NCI shall
deliver any modifications, enhancements, additions or updates to the TVsoft
Technology and NCI Version that include or are based on the 4.0 Code and/or the
4.0 Updates, in the form described in Section 5.3 of the Navio Agreement, not
less than one (1) time in each calendar quarter, until such time as Netscape has
received that initial version of the TVsoft Technology and NCI Version
incorporating the final Netscape Technology update delivered to NCI hereunder,
which is expected to be within 135 days of the Final Update Delivery Date.
Netscape shall have the rights with respect to such TVsoft Technology and NCI
Version as set forth for the TVsoft Technology in Section 4 of the Navio
Agreement. Netscape shall have the right at any time to direct NCI not to
deliver any further TVsoft Technology or NCI Version to Netscape, except to the
extent required for NCI to perform porting activities on Netscape's premises
described in paragraphs 7 and 8 below.
b. NETSCAPE SOURCE CODE. Subject to the limitations on NCI's
use contained herein and in the Navio Agreement, Netscape shall not exercise its
right under Section 17.3 of the Navio Agreement to require the return of the
Netscape Source Code and shall have no further right to demand return of the
Netscape Source Code.
5. APPLICABILITY OF SECTION 12.6. The restrictions on competition by
employees and consultants in Section 12.6 of the Navio Agreement shall apply for
the six (6) month period beginning with the Final Update Delivery Date, not the
Divestiture Event.
May 16, 1997
Page 3
6. CERTAIN NAVIO AGREEMENTS.
6.1 GENERAL. Navio has entered into the following agreements:
(i) that certain agreement dated as of November 7,1996 between Navio and HDS, a
Delaware corporation (the 'HDS Agreement') ; (ii) that certain agreement dated
as of January 7, 1997, between Navio and Tektronix, Inc., an Oregon corporation
(the 'Tektronix Agreement'); (iii) that certain agreement dated as of February
12, 1997, between Navio and Hewlett-Packard (Canada)Ltd., an Ontario corporation
(the 'HP Agreement'); and (iv) that certain agreement dated as of March 27, 1997
between Navio and International Business Machines Corporation, a New York
corporation (the 'IBM Agreement'). The foregoing agreements are referred to
herein collectively as the 'Navio NC Agreement.' Each of the Navio NC Agreements
provides a license to a third party of certain Netscape Technology.
6.2 LICENSE. From and after the Effective Time, and subject in
the case of the HP Agreement and the IBM Agreement to the specific restrictions
set forth herein, Netscape hereby grants to NCI a nonexclusive, nontransferable
and nonsublicensable (except to the limited extent contractually required under
the Navio NC Agreement) right and license in and to the Netscape Technology,
only to the extent required to grant to each of HDS, IBM, HP and Tektronix the
rights granted to each of such parties under the Navio NC Agreements. Navio's
and NCI's rights under the Navio NC Agreements shall be royalty-free, except as
set forth in paragraph 6.3 below with respect to the Navio Browser Product
Licensed on a stand-alone basis by IBM.
6.3 HP AGREEMENT. With respect to the source code
license granted to HP in Section 4.1 of the HP Agreement, and set forth in
paragraph 8 (a) below, the 'premises' upon which HP is to make any source
code modifications shall be Navio/NCI's premises. Navio/NCI shall make the
Source Code (as defined therein) available to HP for the limited purposes as
set forth in and subject to all the restrictions contained in Section 4.1 of
the HP Agreement and in the Source Code Access Agreement attached as
Exhibit E to the HP Agreement.
6.4 IBM AGREEMENT. NCI shall be responsible for its
obligations the IBM Agreement. At such time, if any, that NCI determines that
its rights to receive updated code hereunder are insufficient to allow it to
perform its obligations to provide Major Updates under Section 5.2.1.1 and
5.2.1.2 and Minor Updates under Section 5.3 of the IBM Agreement, then NCI will
so inform Netscape. Thereafter the parties will negotiate in good faith and
enter into an agreement having either of the following terms (and such other
terms and conditions as are customary for agreements of this type in the
software industry, except that no additional charges or fees shall be part of
any such agreement):
a. NCI will seek IBM's permission to delegate to
Netscape its obligations to provide Major Updates under
Section 5.2.1.1 and 5.2.1.2 and Minor Updates under Section
5.3 of the IBM Agreement. If such delegation is permitted by
IBM, Netscape shall assume such obligations. If such
delegation is permitted by IBM, NCI shall at its expense
provide Netscape with all code, know-how, documentation and
software tools reasonably required or useful for Netscape to
provide IBM with Major Updates under Section 5.2.1.1 and
5.2.1.2 and Minor Updates under Section 5.3 of the IBM
Agreement and Netscape shall provide same to IBM. In such
event NCI/Navio shall assign to Netscape and direct IBM to
deliver to Netscape any and all royalties, fees or other
payments from IBM with respect to such Major Updates or Minor
Updates provided to IBM by Netscape; or
b. Subject to all of Netscape's standard terms and
conditions for access to its most sensitive information,
including without limitation appropriate confidentiality
restrictions, and at
May 16, 1997
Page 4
NCI's expense, NCI shall be given access during the
term of the IBM Agreement on a 'one-time' basis to the source
code for each new Major Update and Minor Update (as defined in
the IBM Agreement) of Netscape Navigator released by Netscape
during the term of the IBM Agreement ('New Code') at
Netscape's facilities solely for the purpose of NCI's
fulfilling its obligations under the Sections of the IBM
Agreement referred to in (a) above. In such event, with
respect to each copy of the Navio Browser Product (as defined
in the IBM Agreement) made by or on behalf of IBM and
incorporating any updates or modifications made in connection
with NCI's access to the New Code, NCI shall bay to Netscape
the Other NCOS Royalty, as defined in paragraph 7.7(b) below,
at the times and on the terms set forth below.
The determination as to whether the agreement shall be based on the
terms set forth in (a) or (b) above shall be made by Netscape in its sole
discretion.
Netscape shall have no further obligation under this subparagraph later
than the end of the term of the IBM Agreement.
In the event that IBM requests a source code escrow under Attachment E
to the IBM Agreement, NCI will use good faith reasonable efforts to convince IBM
to enter into such an agreement directly with Netscape instead of NCI.
Under paragraph B of Agreement C to the IBM Agreement, IBM has the
right to distribute 'Navio Browser Products' on a stand-alone basis ('Stand
Alone Units,' as defined therein), subject to a royalty schedule. NCI hereby
agrees that in the event that IBM makes any such 'stand-alone' distribution, NCI
will pay to Netscape a royalty of five dollars ($5) for each copy of Navio
Browser Product sold or distributed in such manner. Any amounts paid to NCI
under the final subparagraph of paragraph B (i.e. upon IBM's written commitment
to (a) $1,000,000 in royalty revenue or (b) the remaining royalty revenue for
the number of Stand Alone Units necessary to reach the $10 royalty level),when
received from IBM, shall be deemed to be pre-payments of royalties owed for the
applicable number of Stand Alone Units (100,000 units in the case of (a) and the
number of additional units purchased in the case of (b)) and the $5 per unit
royalty for each such unit shall be payable to Netscape upon such receipt.
6.5 PERFORMANCE. Netscape shall not hereafter make any claim
that as of the date hereof Navio has infringed any right of Netscape by entering
into the Navio NC Agreements. In no event will Netscape be liable for any
failure of Navio or NCI to perform any of its obligations under any of the Navio
NC Agreements, including without limitation NCI/Navio's obligation to provide
IBM with timely Major Updates and Minor Updates, and NCI hereby agrees to defend
and indemnify Netscape from and against any costs and/or damages (including
without limitation attorneys' fees) incurred or suffered by Netscape as a result
of any claim that NCI or Navio has failed to perform such obligations. In no
event will NCI be liable for any failure of Netscape to perform any obligations
assumed by Netscape pursuant to paragraph 6.4(b) and Netscape hereby agrees to
defend and indemnify NCI from and against any costs and/or damages (including
without limitation attorneys' fee) incurred or suffered by NCI as a result of
any claim that Netscape has failed to perform any obligation it may assume under
paragraph 6.4(a) above.
May 16, 1997
Page 5
7. NC DEVELOPMENT.
7.1 RIGHTS. Netscape, Navio, Oracle and NCI acknowledge and
agree that Navio has produced and NCI shall have the right (in addition to its
rights under the Navio NC Agreements, which rights do not include the right to
use the Netscape Technology on Network Computers) to improve and create
derivative works based upon a version of the Netscape Technology designed to be
distributed on Network Computers (the 'NCI Version'). NCI will have the right to
distribute and sublicense the NCI Version for use only on Network Computers and
bundled as follows:
a. with the operating system licensed or developed
and distributed by NCI for use on NCI network Computers, which
operating system my include third party technology but will
always include substantial development work by NCI (the
'NCI-NCOS'); or
b. with the suite of bundled software application and
system programs designed to operate on Netscape Computers and
marketed by NCI as the NC Desktop (and variations of and
successor products thereto), and which comprise substantial
value added (the 'NC Desktop'). The NC Desktop incorporating
the NCI Version will generally be distributed and sublicensed
to operate with the NCI-NCOS but may also be distributed and
sublicensed for use with other Network Computer operating
systems ('Other NCOSs').
The NCI Version shall be distributed by Oracle and NCI only under the
terms of the OEM Agreement, except as expressly modified herein. With the sole
exception of the licenses granted to NCI hereunder with respect to the Navio NC
Agreements (which, except for the standalone versions under the IBM Agreement
shall be royalty free), each license granted hereunder shall be royalty-bearing
as set forth in the OEM Agreement and in this Agreement.
It is expressly understood that one of the restrictions set forth in
this Section 7.1 shall apply to licensing of the Netscape Technology for use
with Consumer Hardware Devices pursuant to the Navio Agreement. Nothing herein
shall prevent or limit Netscape from developing versions of its technology for
use with Netscape Computers or otherwise. The NCI Version may be ported as set
forth in paragraph 8(a) below.
7.2 DUAL-BOOT MACHINE. In addition to the right granted to it
in paragraph 7.1, NCI shall have the right to distribute and sublicense the NCI
Version bundled with the NC Desktop for use on computers having the capability
of executing instructions from either (i) the NCI-NCOS or an Other NCOS, or (ii)
a Microsoft Windows, Apple Macintosh or UNIX operating system, but not where
both (i) and (ii) are available to the user within the same session (Dual-Boot
Machines'). Any use of the NCI Version on a Dual-Boot Machine shall be subject
to the payment to Netscape of the Other NCOS Royalty referred to in paragraph
7.7 below.
7.3 PROPERTY. Except as set forth paragraph 8(c) below, as
between Netscape and NCI, and subject to the patent licenses granted to Netscape
and NCI in paragraph 11 below, all Netscape Technology is and shall be the
property of Netscape, and all the modifications and improvements to and
derivative works of the Netscape Technology created by NCI and used in the NCI
Version shall be the property of NCI.
7.4 DELIVERY. Each delivery of the TVsoft Technology to
Netscape under paragraph 4(a) above will contain the source code and object
code for the NCI Version, as improved and modified. Each delivery of source code
and object code for the NCI Version shall be made such that the object code is
delivered in
May 16, 1997
Page 6
packaging separate from the source code. The object code shall be delivered in a
form that will allow Netscape to deliver such code to Oracle and NCI as a
Netscape Product under the OEM Agreement without any modification or alteration
by Netscape. The source code for the NCI Version shall be delivered to Netscape
physically packaged in a sealed container with a notice of its contents
prominently displayed.
7.5 NETSCAPE PRODUCT. Subject to there limitations act forth
in this paragraph 7, the NCI Version with be considered a Netscape Product for
purposes of the OEM Agreement and made available to Oracle and NCI as provided
in the OEM Agreement, and shall be subject to all the terms of the OEM Agreement
relating to such Netscape Product. NCI shall indemnify and hold Netscape
harmless from and against any claim by Oracle or a third party that NCI Version
(excluding the unmodified Netscape Technology incorporated therein) fails in any
respect to meet any warranty or representation made to Oracle under the OEM
Agreement, whether of performance, noninfringement of third party rights, or
otherwise.
7.6 DEFINITIONS. As used in this letter agreement, the term
'Netscape Computer' shall mean a computing device that is marketed as a network
computer and that does not require local persistent storage (e.g., a hard disk
drive) for its operation and which uses a periodic connection with a network to
obtain applications, user data and content. A Network Computer shall not include
a personal computer (including those that function as servers) or any computer
that uses as operating system set forth on Exhibit B hereto, or any new release,
new version, successor, follow-on or replacement of any such operating system.
The term 'Other NCOS' shall include, by way of example and not
limitation, Microsoft Windows CE, Java OS, VXWorks, OS/9 and Newton OS.
7.7 PAYMENT.
a. With respect to the rights granted to NCI under
paragraph 7.1(a) above, Netscape shall receive the amount of one dollar ($1.00)
per copy payable to Netscape for Netscape Products under the OEM Agreement.
b. With respect to any distribution of the NCI
Version under subparagraphs 7(b) or 7.2 above, Oracle shall pay to Netscape, for
each copy of the NCI Version made or distributed thereunder, an amount equal to
the greater of one dollar ($1.00) or twenty-five percent (25%) of all amounts
received by NCI with respect to the NC Desktop bundle in which the NCI Version
is incorporated (the 'Other NCOS Royalty'). The Other NCOS Royalty shall be paid
on any amounts paid to NCI as a 'prepayment' or 'Advance' or similar lump-sum.
The Other NCOS Royalty shall be paid and accounted for as set forth in Section r
of the OEM Agreement, except that the report called for in Section 4.3 thereof
shall include a statement for the applicable period of each amount received by
NCI with respect to the licensing of the NC Desktop bundle incorporating the NCI
Version.
c. Payment will be due in accordance with the OEM
Agreement, as expressly modified herein, for all copies of the NCI Version
through October 17, 1999. Thereafter, no license fee payment will be due with
respect to Oracle's distribution of such copies and NCI's license rights shall
be deemed fully paid up and, so long as NCI is not in material breach thereof,
perpetual.
d. There foregoing provisions (a), (b) and (c) shall
amend the payment provisions of Exhibit B of the OEM Agreement (i.e., the Major
Update per-copy pricing of $5.00 for Oracle Network Computer
May 16, 1997
Page 7
End User Customers shall not apply to the NCI Version). Each copy of the NCI
Version made or distributed hereunder will bear a royalty under either (a) or
(b) above.
7.8 LATER RELEASES OF NCI VERSION. With respect to versions
(releases) of the NCI Version NCI delivers to Netscape under paragraph 4 above
after such time as Netscape has received that version of the TVsoft Technology
and NCI Version incorporating the final 4.0 Update Netscape delivers to NCI
under paragraph 4(a) above, Netscape shall have no rights under the Navio
Agreement or this letter agreement except to make the executable form thereof
available or Oracle and NCI under the OEM Agreement.
8. OEM AGREEMENT.
a. PORTING AT NCI'S FACILITY. NCI shall have the
right to develop and port the NCI Version (i) bundled with the NCI-NCOS under
the license grant in subparagraph 7.1(a) above to various Network Computer
hardware platforms and (ii) under the Navio NC Agreements to the network
Computer operating systems expressly referred to in those agreements. Such
porting activities shall be conducted on NCI's premises in Redwood Shores,
California and shall be subject to the same protections and procedures for the
Netscape Technology, including without limitation with respect to the
confidentiality and integrity, as NCI uses Oracle's most sensitive source code.
b. PORTING AT NETSCAPE FACILITY. NCI shall have the
right to port the NCI Version with the NC Desktop under the license grant in
subparagraph 7.1(b) and paragraph 7.2 above to Other NCOSs as defined therein.
All such porting shall take place at Netscape's facilities and shall be subject
to the terms of Section 14.13 of the OEM Agreement.
c. OWNERSHIP. All ported Source Code for the Netscape
Technology developed under (a) above shall be owned by NCI, subject to
Netscape's rights in the underlying Netscape Technology. All ports of the Source
Code for the Netscape Technology developed under (b) above shall be Derivative
Works (as defined in the OEM Agreement) and owned by Netscape, subject to NCI's
ownership in the underlying NCI Version. Nothing in this Agreement or otherwise
shall prevent or restrict Netscape from developing and/or exploiting ports of
the Netscape Technology or Netscape Tools to any platform.
d. TERMS. With respect only to the NCI Version, and
subject to the limitations set forth in paragraph 7, the license grants to NCI
in paragraph 7 hereof and to Oracle in Sections 2.1 and 3.3 of the OEM Agreement
shall survive the termination of the agreement and shall continue in perpetuity.
e. FCS. The requirement of production release/FCS
(First Customer Ship) with respect to when Navio client products are available
to Oracle under Section 1.7 of the OEM Agreement is hereby deleted.
9. INDEMNIFICATION. Netscape's indemnification obligations under
Sections 10.1 and 10.2 of the OEM Agreement shall apply to the Netscape
Technology licensed under the Navio Agreement and this letter agreement as if
set forth therein and herein. Similarly, such sections shall apply and NCI shall
have such obligations to Netscape, MUTATIS MUTANDIS, with respect to the TVsoft
Technology licensed to Netscape under such Navio Agreement and this letter
agreement. Both party's indemnification obligations shall be subject to the
limitation of liability set forth in Section 11.3 of the OEM Agreement;
provided, however, that each party's
May 16, 1997
Page 8
aggregate liability thereunder shall be limited to $10,000,000, except with
respect to any claims brought under the IBM Agreement, in which event the limit
for each party shall be $20,000,000.
10. ASSIGNMENT. Section 17.3(a) of the Navio Agreement ('Assignment'),
is amended and restated as follows:
NCI shall have the right to assign its rights and obligations
hereunder to Oracle Corporation ('Oracle'), subject to the
following conditions precedent: (1) such assignment shall be
in connection with an acquisition by Oracle of all of the
equity or all of the assets of NCI; (2) Oracle shall agree in
a separate writing delivered to Netscape to be bound by and
perform all of NCI's obligations under this License Agreement;
and (3) such assignment shall not be effected unless and until
(i) six (6) months have passed since the Final Update Delivery
Date and (ii) Oracle shall have agreed in writing that, for an
additional six (6) month period commencing on the expiration
of the period referred to in (i), no Oracle employee shall
have access to the source code for any product incorporating
or based on any Netscape Technology, other than for the
purpose of continuing to develop the NCI products being
developed at the time of the acquisition, and not any other
Oracle product.
Further, NCI shall have the right to assign its rights under this
letter agreement, the Navio Agreement and the OEM Agreement to any entity other
than Microsoft or Oracle (except as described in the immediately preceding
paragraph) that succeeds to all of the business or assets of NCI subject to the
following conditions precedent: (1) such assignee shall agree in a separate
writing delivered to Netscape to be bound by and perform all of NCI's
obligations under this letter agreement, the Navio Agreement and OEM Agreement;
and (2) such assignment shall not be effected unless and until fifteen (15)
months have passed since the Final Update Delivery Date.
11. PATENTS. The following changes shall be made to Section 3 of the
Navio Agreement.
a. Section 3.3 shall be omitted and replaced
with the following:
NCI INVENTIONS. NCI shall be the owner of
any Inventions it develops ('NCI
Inventions'). As used in this Section 3.3,
'NCI Licensed Patents' means any issued
patents that claim any NCI Invention arising
from the Netscape Technology or Netscape
Tools and covering or reading on any
Netscape Technology or Netscape Tools, or
any Derivative Work of Netscape Technology
or Netscape Tools. NCI hereby grants to
Netscape a perpetual, irrevocable,
non-exclusive, non-transferable, fully
paid-up right and license, with the right to
grant and authorize sublicenses, under any
and all NCI Licensed Patents, to make, have
made, use, offer to sell, sell, import and
export any products and items.
b. A new Section 3.4 shall be inserted, which
shall be as follows:
NETSCAPE INVENTIONS. Netscape shall be the
sole owner of any Inventions it develops
('Netscape Inventions'). As used in this
Section 3.4, 'Netscape Licensed Patents'
means any issued patents that claim any
Netscape Invention arising from the NCI
(TVsoft) Technology or NCI (TVsoft) Tools
and covering
May 16, 1997
Page 9
or reading on any NCI Technology or NCI
Tool, or any Derivative Work of NCI
Technology or NCI Tools. Netscape hereby
grants to NCI a perpetual, irrevocable,
non-exclusive, non-transferable, fully
paid-up right and license, with the right to
grant and authorize sublicenses, under any
and all Netscape Licensed Patents, to make,
have made, use, offer to sell, sell, import
and export any products and items.
c. Former Section 3.4, Inventions Generally,
shall become Section 3.5.
12. TECHNICAL SUPPORT. Section 6 of the Navio Agreement (Support) is
hereby deleted. NCI shall have the right to purchase the following support
services:
a. AUTOMATED SERVICES: Subject to the limitation on
source code access beyond the 4.0 Code and 4.0 Updates, as set forth in
paragraph 3 above, NCI shall be allowed access to Netscape's standard automated
developer support services, 'Netscape DevEdge Gold', for access by up to 15
developers. Such services currently include FAQs, Bug Reporting, Known Bugs,
Newsgroups, Documentation, and Sample Code. Such services may be modified during
such period as Netscape Determines for all similarly situated developers.
b. ENGINEERING SUPPORT: Netscape shall provide to NCI
the following as Non-Recurring Engineering (NRE) support for the Netscape source
code: Support for the preparation of source drops, training on the source code
build process, account management and code drops of the Netscape test suites.
Engineering support contact for inquiries regarding the Netscape Technology will
also be provided under this support service via the Netscape OEM Support
process.
c. BINARY SUPPORT SERVICES: Per the OEM Agreement,
Attachment D, through Netscape Support).
NCI shall pay Netscape the sum of $250,000, payable annually in
advance, with respect to such support services. NCI here by agrees to purchase
such support for the annual period commencing on the Effective Time and Netscape
agrees to extend NCI a discount of $75,000 with respect to such period. NCI
shall have the right to purchase one (1) additional year of such support on
notice to Netscape not less than thirty (30) days prior to the first anniversary
of the effective Time for an additional payment of $250,000. Amounts paid by NCI
under this paragraph 12 shall be credited against any amounts due to Netscape
from Oracle under Section 3 Exhibit B to the OEM Agreement. Subject to NCl's
payment of the $175,000 referred to above, neither Oracle or NCI shall owe any
additional payment for technical support as set forth in this paragraph through
the first anniversary of the Effective Time. In the event that during such
period NCI and/or Oracle uses or requests to use more support services than
provided in this paragraph, then Oracle or NCI, as applicable, shall pay
Netscape for such additional services as available.
13. TRADEMARKS. The Trademark Agreement between Navio and Netscape
entered into concurrently with the Navio Agreement (the 'Trademark Agreement')
is hereby amended to set forth the following as the definition of 'Licensed
Trademark' therein:
a. for the NCI Version distributed in a
manner in which the NCI Version is substantially similar in
appearance and functionality to the Netscape Navigator, then
NCI shall either (i) place Netscape's 'N Animation' logo in
the upper right corner of the NCI Version
May 16, 1997
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screen in accordance with Netscape's standard trademark
guidelines or (ii) place NCI's designated logo in such
position (i.e., upper right hand corner) and place the
Netscape logo on the toolbar or a position of equivalent
prominence approved in advance by Netscape; and
b. for Consumer Hardware Products, NCI shall
follow the standards in (a) above where practicable. Where
such is not practicable, whether for reasons of memory, space
or otherwise, then during the startup sequence of any such
product the phrase 'Netscape Technology Inside' or a similar
phrase designated In writing by Netscape shall prominently
appear. NCI shall use 'Netscape Technology Inside' until such
time as NCI and Netscape mutually agree upon an alternate
mark.
Netscape shall provide all copy and artwork for the foregoing mark
placements and NCI shall not change or revise same except with Netscape's prior
written approval in each case. Any use of Netscape trademarks shall be subject
to Netscape's standard trademark guidelines.
The foregoing obligations shall continue until the later to occur of
(i) the OEM Termination Date and (ii) the date that the applicable NCI Version
or Consumer Hardware Device no longer comprised of a material portion of
Netscape Technology code. At such time NCI shall cease using such marks. NCI
acknowledges the high quality reputation and goodwill associated with Netscape
and its marks. In the event that Netscape shall at any time reasonably determine
that the NCI's use of the Netscape trademarks will negatively affect such
reputation and goodwill, then Netscape shall have the right to cause NCI to
promptly discontinue such use of the Netscape trademarks on notice to NCI and
NCI shall take prompt action to cure any such negative use.
Netscape acknowledges that Navio has shipped product without the
application of a Licensed Trademark in a manner that may not be consistent with
Navio's obligations under the Trademark Agreement. NCI shall promptly begin
using such mark in such manner. Netscape hereby agrees not to assert any claim
it may have against Navio in connection with such failure.
14. DISPUTE RESOLUTION. Prior to the commencement of any action
hereunder, the parties will follow the dispute resolution process set forth in
this paragraph. Promptly following any event that may give rise to a dispute,
but in any event prior to the commencement of any action, the individuals
working on the particular matter will meet and confer. In the event that such
individuals are unable to resolve the dispute within 3 days, the matter will be
referred to Jerry Baker, on behalf of NCI, David Roux, on behalf of Oracle, and
Roberta Katz on behalf of Netscape. Those three persons will meet and confer
regarding the problem and attempt to resolve it in good faith for a period of
not less than 20 days, following which time the aggrieved party may commence any
appropriate action.
15. COUNTERPARTS. This letter agreement may be executed in any number
of counter parts, each of which shall be an original, but all of which together
shall constitute one instrument.
May 16, 1997
Page 11
The OEM Agreement, the Navio Agreement and the Trademark Agreement are
hereby amended, but only to the extent required to effect the express intent of
the foregoing. Except as expressly set forth herein, the OEM Agreement, the
Navio Agreement and the Trademark Agreement shall continue in force and effect
in accordance with their terms. If the foregoing represents your understanding
of our agreement, please countersign this letter where indicated below.
Sincerely
NETSCAPE COMMUNICATIONS CORPORATION
By: /s/ [Illegible]
------------------------------------
Title: Senior Vice President and
------------------------------------
Chief Financial Officer
------------------------------------
Date: 5/16/97
------------------------------------
Accepted and agreed to:
NETWORK COMPUTER, INC. ORACLE CORPORATION
By: /s/ Jerry Baker By: /s/ David Roux
------------------------ ------------------------------------
Jerry Baker David Roux
Title: Title:
------------------------ ------------------------------------
Date: 5/16/97 Date: 5/16/97
------------------------ ------------------------------------
NAVIO COMMUNICATIONS, INC.
By: /s/ Dr. Wei Yen
------------------------
Dr. Wei Yen
Title: President and CEO
------------------------
Date: 5/16/97
------------------------
May 16, 1997
Page 12
EXHIBIT A
LETTER AGREEMENT DATED MAY BETWEEN NETSCAPE AND NAVIO
May 16, 1997
Page 13
EXHIBIT B
Operating Systems
All PC platforms currently supported by NSCP software: Win 3.1, Win95, NT, Mac
PPC, Mac68K, DEC UNIX, Calders, IBMAIX, HP UX, SGI IRIX, Sun OS, Solaris, SCO,
O/S2 and NetWare.
NETSCAPE COMMUNICATIONS CORPORATION
501 E. Middlefield Rd.
Mountain View, CA 94043
May 16, 1997
Dr. Wei Yen
Navio Communications, Inc.
870 W. Maude Ave.
Sunnyvale. California 94086
RE: SOURCE CODE LICENSE AGREEMENT DATED JULY 9, 1996
(THE 'LICENSE AGREEMENT')
Dear Dr. Yen:
This letter, when countersigned by you below, will reflect our
agreement regarding certain aspects of the acquisition of Navio Communications.
Inc. (formerly 'TVsoft Corporation') ('Navio') by Network Computer, Inc.
('NCI'). Netscape Communications Corporation ('Netscape'), NCI, and Oracle
Corporation ('Oracle') are entering into a Merger Agreement ('Merger Agreement')
concurrently with the signing of this letter. Netscape and Navio are parties to
that certain Source Code License Agreement dated July 9, 1996 (the 'License
Agreement') and a Trademark Agreement ('Trademark Agreement'), also of such
date. Navio, Netscape, Oracle and NCI have also entered into a letter agreement
of even date herewith ('Letter Agreement') amending the Agreement in some
respects. As an inducement for Netscape to enter into the Merger Agreement, and
for other good and valuable consideration, we hereby agree to amend the
Agreement further as follows, all effective as of the date hereof unless
otherwise indicated'
1. Netscape shall no longer have any obligations under Section 8.2 of the
License Agreement. Navio shall no longer have any obligations under
Section 8.3 of the License Agreement. In the event that the Effective
Time, as defined in the Merger Agreement, has not occurred within
seventy-five (75) days of the date hereof, then in such event at
Netscape's discretion either (i) the parties will take such actions as
may be necessary to reinstate the foregoing Sections of the License
Agreement, or (ii) Netscape shall promptly take such actions as may be
necessary to reduce its equity ownership interest in Navio (by offering
to contribute, at no cost to Navio, shares directly to Navio's
treasury) to that number of shares required to cause a Divestiture
Event.
2. Section 16 of the Agreement is hereby deleted.
The Agreement is hereby amended, but only to the extent required to effect the
express intent of the foregoing. All references to the License Agreement in any
other document shall be deemed to refer to the License Agreement as modified by
this Amendment. Except as modified by this Amendment, the License Agreement
shall remain in full force and effect and shall be enforceable in accordance
with its terms. In the event that the terms of this Amendment conflict with the
terms of the License Agreement or its exhibits, the terms of this Amendment
shall be deemed to govern.
Except as expressly set forth herein, the Agreement shall continue in force and
effect in accordance with its terms. If the foregoing represents your
understanding of our agreement, please countersign this letter where indicated
below.
Sincerely
NETSCAPE COMMUNICATIONS CORPORATION
By: /s/ [Illegible]
----------------------------------
Title: Senior Vice President and Chief
Financial Officer
----------------------------------
Date: 5/16/97
----------------------------------
Accepted and agreed to:
NAVIO COMMUNICATIONS, INC.
By: /s/ Dr. Wei Yen
------------------------
Dr. Wei Yen
Title: President and CEO
------------------------
Date: 5/16/97
------------------------
Letter Agreement - Netscape Communications Corp., Oracle Corp., Network Computer Inc. and Navio Communications Inc.
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