{"id":43438,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/letter-agreement-netscape-communications-corp-oracle-corp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"letter-agreement-netscape-communications-corp-oracle-corp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/letter-agreement-netscape-communications-corp-oracle-corp.html","title":{"rendered":"Letter Agreement &#8211; Netscape Communications Corp., Oracle Corp., Network Computer Inc. and Navio Communications Inc."},"content":{"rendered":"<pre>                       NETSCAPE COMMUNICATIONS CORPORATION\n                             501 E. Middlefield Rd.\n                            Mountain View, CA. 94043\n\n                                  May 16, 1997\n\n\nMr. David Roux\nOracle Corporation\n500 Oracle Parkway\nRedwood Shores, California 94065\n\nMr. Jerry Baker                                     Dr. Wei Yen\nNetwork Computer, Inc.                              Navio Communications, Inc.\n477100 Marine Parkway, 2nd Floor                    870 W. Maude Ave.\nRedwood Shores, California 94065                    Sunnyvale, California\n94086\n\n\n         RE: CERTAIN AGREEMENTS\n\n\nGentlemen:\n\n         This letter, when countersigned by you below, will reflect our\nagreement regarding certain aspects of the acquisition of Navio Communications,\nInc. (formerly 'TVsoft Corporation') ('Navio') by Network Computer, Inc.\n('NCI'). Netscape Communications Corporation ('Netscape'), NCI, and Oracle\nCorporation ('Oracle') are entering into a Merger Agreement ('Merger Agreement')\nconcurrently with the signing of this letter. Oracle and Netscape are parties to\nthat certain OEM License Agreement dated OCTOBER 17, 1996 ('OEM License\nAgreement'). Netscape and Navio are parties to that certain Source Code License\nAgreement dated July 9, 1996 ('Navio Agreement') and a Trademark Agreement\n('Trademark Agreement'), also of such date.\n\n         Capitalized terms not defined herein shall have the meanings assigned\nto them under the OEM Agreement, the Navio Agreement and the Trademark\nAgreement, as indicated. This letter agreement shall become effective at the\nEffective Time (as such term is defined in the Merger Agreement). Before the\nEffective Time, Netscape and Navio shall make no amendment to the Navio\nAgreement without Oracle and NCI's written consent, and no amendment thereto\nshall be valid and legally binding, except as set forth on Exhibit A hereto.\n\n         1. ASSIGNMENT OF NAVIO AGREEMENT. Netscape consents to the assignment\nof the Navio Agreement to NCI immediately upon the Effective Time. NCI hereby\naccepts assignment of the Navio Agreement and agrees to perform all the\nobligations of Navio thereunder after the Effective Time. Netscape hereby agrees\nto fully cooperate with NCI, including promptly executing all documents\nreasonably requested by NCI, to effect the rights and assignments agreed to\nhereunder.\n\n         2. DIVESTITURE EVENT. The acquisition of Navio by NCI is a 'Divestiture\nEvent,' as that term is defined in Section 1.8 of the Navio Agreement. Because a\nDivestiture Event has occurred, certain provisions of Navio Agreement become\neffective, including without limitation of the following: (i) delivery of\nNetscape Technology Updates under Section 5.2 is no longer required;(ii) each\nparty's Marketing Right in Section 8.2 and 8.3, respectively, shall cease to\napply (the licenses granted to Netscape under the Navio Agreement are thereby\nnonexclusive); and (iii) the grant of license to Netscape in Section 4 becomes\neffective, and Navio has certain delivery obligations (see paragraph 4 below).\n\n\n\n\nMay 16, 1997\nPage 2\n\n         3. NETSCAPE TECHNOLOGY UPDATES. Notwithstanding the fact that a\nDivestiture Event has occurred and that therefore the Update Period has ended,\n(i) before the Effective Time Netscape shall continue to deliver Netscape\nTechnology Updates to Navio pursuant to the Navio Agreement and (ii) Netscape\nshall deliver the source code for Netscape navigator 4.0 ('4.0 Code') to NCI\nwithin two (2) weeks following Netscape's release of Netscape navigator 4.0, or\nwhenever an unrelated third party receives such code, whichever is sooner. Until\ntermination of the OEM Agreement, but not later than October 17, 1999 (in either\nevent, the 'OEM Termination Date'). Netscape shall also deliver to NCI the\nsource code for any and all Maintenance Updates and Minor Updates (defined in\nSection 1.13 of the Navio Agreement) to the 4.0 Code (collectively, the '4.0\nUpdates'). Such 4.0 Code and 4.0 Updates shall be deemed Netscape Technology\nUpdates and Netscape Technology under the Navio Agreement. Except for such 4.0\nUpdates, Netscape shall have no obligation to deliver any Netscape Technology to\nNCI after its delivery of such 4.0 Code. NCI shall have the right at any time to\ndirect Netscape not to deliver any further Netscape Technology Updates to NCI.\nThe date of the delivery of the final 4.0 Update constituting a Minor Update is\nhereinafter referred to as the 'Final Update Delivery Date.'\n\n         As used herein, the term 'Netscape navigator 4.0' means that product to\nbe introduced by Netscape as Netscape Navigator 4.0, which product does not\ninclude messaging or mail functions.\n\n         4. NCI DELIVERY OBLIGATIONS.\n\n                  a. TVSOFT TECHNOLOGY. Pursuant to Section 5.3 of the Navio\nAgreement, within thirty (30) days of the Effective Time, NCI shall deliver to\nNetscape one (1) copy of all TVsoft Technology (as defined in the Navio\nAgreement) and the NCI Version (as defined in paragraph 7 below), existing as of\nthe Effective Time, including source code and object code versions thereof (the\n'First Delivery'). In addition, within sixty (60) days of the delivery of the\n4.0 Code to NCI, NCI shall deliver to Netscape any TVsoft Technology and NCI\nVersion that has been created since the First Delivery. Thereafter, NCI shall\ndeliver any modifications, enhancements, additions or updates to the TVsoft\nTechnology and NCI Version that include or are based on the 4.0 Code and\/or the\n4.0 Updates, in the form described in Section 5.3 of the Navio Agreement, not\nless than one (1) time in each calendar quarter, until such time as Netscape has\nreceived that initial version of the TVsoft Technology and NCI Version\nincorporating the final Netscape Technology update delivered to NCI hereunder,\nwhich is expected to be within 135 days of the Final Update Delivery Date.\nNetscape shall have the rights with respect to such TVsoft Technology and NCI\nVersion as set forth for the TVsoft Technology in Section 4 of the Navio\nAgreement. Netscape shall have the right at any time to direct NCI not to\ndeliver any further TVsoft Technology or NCI Version to Netscape, except to the\nextent required for NCI to perform porting activities on Netscape's premises\ndescribed in paragraphs 7 and 8 below.\n\n                  b. NETSCAPE SOURCE CODE. Subject to the limitations on NCI's\nuse contained herein and in the Navio Agreement, Netscape shall not exercise its\nright under Section 17.3 of the Navio Agreement to require the return of the\nNetscape Source Code and shall have no further right to demand return of the\nNetscape Source Code.\n\n         5. APPLICABILITY OF SECTION 12.6. The restrictions on competition by\nemployees and consultants in Section 12.6 of the Navio Agreement shall apply for\nthe six (6) month period beginning with the Final Update Delivery Date, not the\nDivestiture Event.\n\n\n\n\nMay 16, 1997\nPage 3\n\n         6. CERTAIN NAVIO AGREEMENTS.\n\n                  6.1 GENERAL. Navio has entered into the following agreements:\n(i) that certain agreement dated as of November 7,1996 between Navio and HDS, a\nDelaware corporation (the 'HDS Agreement') ; (ii) that certain agreement dated\nas of January 7, 1997, between Navio and Tektronix, Inc., an Oregon corporation\n(the 'Tektronix Agreement'); (iii) that certain agreement dated as of February\n12, 1997, between Navio and Hewlett-Packard (Canada)Ltd., an Ontario corporation\n(the 'HP Agreement'); and (iv) that certain agreement dated as of March 27, 1997\nbetween Navio and International Business Machines Corporation, a New York\ncorporation (the 'IBM Agreement'). The foregoing agreements are referred to\nherein collectively as the 'Navio NC Agreement.' Each of the Navio NC Agreements\nprovides a license to a third party of certain Netscape Technology.\n\n                  6.2 LICENSE. From and after the Effective Time, and subject in\nthe case of the HP Agreement and the IBM Agreement to the specific restrictions\nset forth herein, Netscape hereby grants to NCI a nonexclusive, nontransferable\nand nonsublicensable (except to the limited extent contractually required under\nthe Navio NC Agreement) right and license in and to the Netscape Technology,\nonly to the extent required to grant to each of HDS, IBM, HP and Tektronix the\nrights granted to each of such parties under the Navio NC Agreements. Navio's\nand NCI's rights under the Navio NC Agreements shall be royalty-free, except as\nset forth in paragraph 6.3 below with respect to the Navio Browser Product\nLicensed on a stand-alone basis by IBM.\n\n                  6.3 HP AGREEMENT. With respect to the source code \nlicense granted to HP in Section 4.1 of the HP Agreement, and set forth in \nparagraph 8 (a) below, the 'premises' upon which HP is to make any source \ncode modifications shall be Navio\/NCI's premises. Navio\/NCI shall make the \nSource Code (as defined therein) available to HP for the limited purposes as \nset forth in and subject to all the restrictions contained in Section 4.1 of \nthe HP Agreement and in the Source Code Access Agreement attached as\nExhibit E to the HP Agreement.\n\n                  6.4 IBM AGREEMENT. NCI shall be responsible for its\nobligations the IBM Agreement. At such time, if any, that NCI determines that\nits rights to receive updated code hereunder are insufficient to allow it to\nperform its obligations to provide Major Updates under Section 5.2.1.1 and\n5.2.1.2 and Minor Updates under Section 5.3 of the IBM Agreement, then NCI will\nso inform Netscape. Thereafter the parties will negotiate in good faith and\nenter into an agreement having either of the following terms (and such other\nterms and conditions as are customary for agreements of this type in the\nsoftware industry, except that no additional charges or fees shall be part of\nany such agreement):\n\n                           a. NCI will seek IBM's permission to delegate to\n                  Netscape its obligations to provide Major Updates under\n                  Section 5.2.1.1 and 5.2.1.2 and Minor Updates under Section\n                  5.3 of the IBM Agreement. If such delegation is permitted by\n                  IBM, Netscape shall assume such obligations. If such\n                  delegation is permitted by IBM, NCI shall at its expense\n                  provide Netscape with all code, know-how, documentation and\n                  software tools reasonably required or useful for Netscape to\n                  provide IBM with Major Updates under Section 5.2.1.1 and\n                  5.2.1.2 and Minor Updates under Section 5.3 of the IBM\n                  Agreement and Netscape shall provide same to IBM. In such\n                  event NCI\/Navio shall assign to Netscape and direct IBM to\n                  deliver to Netscape any and all royalties, fees or other\n                  payments from IBM with respect to such Major Updates or Minor\n                  Updates provided to IBM by Netscape; or\n\n                           b. Subject to all of Netscape's standard terms and\n                  conditions for access to its most sensitive information,\n                  including without limitation appropriate confidentiality\n                  restrictions, and at\n\n\n\nMay 16, 1997\nPage 4\n\n                           NCI's expense, NCI shall be given access during the\n                  term of the IBM Agreement on a 'one-time' basis to the source\n                  code for each new Major Update and Minor Update (as defined in\n                  the IBM Agreement) of Netscape Navigator released by Netscape\n                  during the term of the IBM Agreement ('New Code') at\n                  Netscape's facilities solely for the purpose of NCI's\n                  fulfilling its obligations under the Sections of the IBM\n                  Agreement referred to in (a) above. In such event, with\n                  respect to each copy of the Navio Browser Product (as defined\n                  in the IBM Agreement) made by or on behalf of IBM and\n                  incorporating any updates or modifications made in connection\n                  with NCI's access to the New Code, NCI shall bay to Netscape\n                  the Other NCOS Royalty, as defined in paragraph 7.7(b) below,\n                  at the times and on the terms set forth below.\n\n         The determination as to whether the agreement shall be based on the\nterms set forth in (a) or (b) above shall be made by Netscape in its sole\ndiscretion.\n\n         Netscape shall have no further obligation under this subparagraph later\nthan the end of the term of the IBM Agreement.\n\n         In the event that IBM requests a source code escrow under Attachment E\nto the IBM Agreement, NCI will use good faith reasonable efforts to convince IBM\nto enter into such an agreement directly with Netscape instead of NCI.\n\n         Under paragraph B of Agreement C to the IBM Agreement, IBM has the\nright to distribute 'Navio Browser Products' on a stand-alone basis ('Stand\nAlone Units,' as defined therein), subject to a royalty schedule. NCI hereby\nagrees that in the event that IBM makes any such 'stand-alone' distribution, NCI\nwill pay to Netscape a royalty of five dollars ($5) for each copy of Navio\nBrowser Product sold or distributed in such manner. Any amounts paid to NCI\nunder the final subparagraph of paragraph B (i.e. upon IBM's written commitment\nto (a) $1,000,000 in royalty revenue or (b) the remaining royalty revenue for\nthe number of Stand Alone Units necessary to reach the $10 royalty level),when\nreceived from IBM, shall be deemed to be pre-payments of royalties owed for the\napplicable number of Stand Alone Units (100,000 units in the case of (a) and the\nnumber of additional units purchased in the case of (b)) and the $5 per unit\nroyalty for each such unit shall be payable to Netscape upon such receipt.\n\n                  6.5 PERFORMANCE. Netscape shall not hereafter make any claim\nthat as of the date hereof Navio has infringed any right of Netscape by entering\ninto the Navio NC Agreements. In no event will Netscape be liable for any\nfailure of Navio or NCI to perform any of its obligations under any of the Navio\nNC Agreements, including without limitation NCI\/Navio's obligation to provide\nIBM with timely Major Updates and Minor Updates, and NCI hereby agrees to defend\nand indemnify Netscape from and against any costs and\/or damages (including\nwithout limitation attorneys' fees) incurred or suffered by Netscape as a result\nof any claim that NCI or Navio has failed to perform such obligations. In no\nevent will NCI be liable for any failure of Netscape to perform any obligations\nassumed by Netscape pursuant to paragraph 6.4(b) and Netscape hereby agrees to\ndefend and indemnify NCI from and against any costs and\/or damages (including\nwithout limitation attorneys' fee) incurred or suffered by NCI as a result of\nany claim that Netscape has failed to perform any obligation it may assume under\nparagraph 6.4(a) above.\n\n\n\n\nMay 16, 1997\nPage 5\n\n         7. NC DEVELOPMENT.\n\n                  7.1 RIGHTS. Netscape, Navio, Oracle and NCI acknowledge and\nagree that Navio has produced and NCI shall have the right (in addition to its\nrights under the Navio NC Agreements, which rights do not include the right to\nuse the Netscape Technology on Network Computers) to improve and create\nderivative works based upon a version of the Netscape Technology designed to be\ndistributed on Network Computers (the 'NCI Version'). NCI will have the right to\ndistribute and sublicense the NCI Version for use only on Network Computers and\nbundled as follows:\n\n                           a. with the operating system licensed or developed\n                  and distributed by NCI for use on NCI network Computers, which\n                  operating system my include third party technology but will\n                  always include substantial development work by NCI (the\n                  'NCI-NCOS'); or\n\n                           b. with the suite of bundled software application and\n                  system programs designed to operate on Netscape Computers and\n                  marketed by NCI as the NC Desktop (and variations of and\n                  successor products thereto), and which comprise substantial\n                  value added (the 'NC Desktop'). The NC Desktop incorporating\n                  the NCI Version will generally be distributed and sublicensed\n                  to operate with the NCI-NCOS but may also be distributed and\n                  sublicensed for use with other Network Computer operating\n                  systems ('Other NCOSs').\n\n         The NCI Version shall be distributed by Oracle and NCI only under the\nterms of the OEM Agreement, except as expressly modified herein. With the sole\nexception of the licenses granted to NCI hereunder with respect to the Navio NC\nAgreements (which, except for the standalone versions under the IBM Agreement\nshall be royalty free), each license granted hereunder shall be royalty-bearing\nas set forth in the OEM Agreement and in this Agreement.\n\n         It is expressly understood that one of the restrictions set forth in\nthis Section 7.1 shall apply to licensing of the Netscape Technology for use\nwith Consumer Hardware Devices pursuant to the Navio Agreement. Nothing herein\nshall prevent or limit Netscape from developing versions of its technology for\nuse with Netscape Computers or otherwise. The NCI Version may be ported as set\nforth in paragraph 8(a) below.\n\n                  7.2 DUAL-BOOT MACHINE. In addition to the right granted to it\nin paragraph 7.1, NCI shall have the right to distribute and sublicense the NCI\nVersion bundled with the NC Desktop for use on computers having the capability\nof executing instructions from either (i) the NCI-NCOS or an Other NCOS, or (ii)\na Microsoft Windows, Apple Macintosh or UNIX operating system, but not where\nboth (i) and (ii) are available to the user within the same session (Dual-Boot\nMachines'). Any use of the NCI Version on a Dual-Boot Machine shall be subject\nto the payment to Netscape of the Other NCOS Royalty referred to in paragraph\n7.7 below.\n\n                  7.3 PROPERTY. Except as set forth paragraph 8(c) below, as\nbetween Netscape and NCI, and subject to the patent licenses granted to Netscape\nand NCI in paragraph 11 below, all Netscape Technology is and shall be the\nproperty of Netscape, and all the modifications and improvements to and\nderivative works of the Netscape Technology created by NCI and used in the NCI\nVersion shall be the property of NCI.\n\n                  7.4 DELIVERY. Each delivery of the TVsoft Technology to\nNetscape under paragraph 4(a) above will contain the source code and object\ncode for the NCI Version, as improved and modified. Each delivery of source code\nand object code for the NCI Version shall be made such that the object code is\ndelivered in\n\n\n\nMay 16, 1997\nPage 6\n\npackaging separate from the source code. The object code shall be delivered in a\nform that will allow Netscape to deliver such code to Oracle and NCI as a\nNetscape Product under the OEM Agreement without any modification or alteration\nby Netscape. The source code for the NCI Version shall be delivered to Netscape\nphysically packaged in a sealed container with a notice of its contents\nprominently displayed.\n\n                  7.5 NETSCAPE PRODUCT. Subject to there limitations act forth\nin this paragraph 7, the NCI Version with be considered a Netscape Product for\npurposes of the OEM Agreement and made available to Oracle and NCI as provided\nin the OEM Agreement, and shall be subject to all the terms of the OEM Agreement\nrelating to such Netscape Product. NCI shall indemnify and hold Netscape\nharmless from and against any claim by Oracle or a third party that NCI Version\n(excluding the unmodified Netscape Technology incorporated therein) fails in any\nrespect to meet any warranty or representation made to Oracle under the OEM\nAgreement, whether of performance, noninfringement of third party rights, or\notherwise.\n\n                  7.6 DEFINITIONS. As used in this letter agreement, the term\n'Netscape Computer' shall mean a computing device that is marketed as a network\ncomputer and that does not require local persistent storage (e.g., a hard disk\ndrive) for its operation and which uses a periodic connection with a network to\nobtain applications, user data and content. A Network Computer shall not include\na personal computer (including those that function as servers) or any computer\nthat uses as operating system set forth on Exhibit B hereto, or any new release,\nnew version, successor, follow-on or replacement of any such operating system.\n\n         The term 'Other NCOS' shall include, by way of example and not\nlimitation, Microsoft Windows CE, Java OS, VXWorks, OS\/9 and Newton OS.\n\n                  7.7 PAYMENT.\n\n                           a. With respect to the rights granted to NCI under\nparagraph 7.1(a) above, Netscape shall receive the amount of one dollar ($1.00)\nper copy payable to Netscape for Netscape Products under the OEM Agreement.\n\n                           b. With respect to any distribution of the NCI\nVersion under subparagraphs 7(b) or 7.2 above, Oracle shall pay to Netscape, for\neach copy of the NCI Version made or distributed thereunder, an amount equal to\nthe greater of one dollar ($1.00) or twenty-five percent (25%) of all amounts\nreceived by NCI with respect to the NC Desktop bundle in which the NCI Version\nis incorporated (the 'Other NCOS Royalty'). The Other NCOS Royalty shall be paid\non any amounts paid to NCI as a 'prepayment' or 'Advance' or similar lump-sum.\nThe Other NCOS Royalty shall be paid and accounted for as set forth in Section r\nof the OEM Agreement, except that the report called for in Section 4.3 thereof\nshall include a statement for the applicable period of each amount received by\nNCI with respect to the licensing of the NC Desktop bundle incorporating the NCI\nVersion.\n\n                           c. Payment will be due in accordance with the OEM\nAgreement, as expressly modified herein, for all copies of the NCI Version\nthrough October 17, 1999. Thereafter, no license fee payment will be due with\nrespect to Oracle's distribution of such copies and NCI's license rights shall\nbe deemed fully paid up and, so long as NCI is not in material breach thereof,\nperpetual.\n\n                           d. There foregoing provisions (a), (b) and (c) shall\namend the payment provisions of Exhibit B of the OEM Agreement (i.e., the Major\nUpdate per-copy pricing of $5.00 for Oracle Network Computer\n\n\n\nMay 16, 1997\nPage 7\n\nEnd User Customers shall not apply to the NCI Version). Each copy of the NCI\nVersion made or distributed hereunder will bear a royalty under either (a) or\n(b) above.\n\n                  7.8 LATER RELEASES OF NCI VERSION. With respect to versions\n(releases) of the NCI Version NCI delivers to Netscape under paragraph 4 above\nafter such time as Netscape has received that version of the TVsoft Technology\nand NCI Version incorporating the final 4.0 Update Netscape delivers to NCI\nunder paragraph 4(a) above, Netscape shall have no rights under the Navio\nAgreement or this letter agreement except to make the executable form thereof\navailable or Oracle and NCI under the OEM Agreement.\n\n         8. OEM AGREEMENT.\n\n                           a. PORTING AT NCI'S FACILITY. NCI shall have the\nright to develop and port the NCI Version (i) bundled with the NCI-NCOS under\nthe license grant in subparagraph 7.1(a) above to various Network Computer\nhardware platforms and (ii) under the Navio NC Agreements to the network\nComputer operating systems expressly referred to in those agreements. Such\nporting activities shall be conducted on NCI's premises in Redwood Shores,\nCalifornia and shall be subject to the same protections and procedures for the\nNetscape Technology, including without limitation with respect to the\nconfidentiality and integrity, as NCI uses Oracle's most sensitive source code.\n\n                           b. PORTING AT NETSCAPE FACILITY. NCI shall have the\nright to port the NCI Version with the NC Desktop under the license grant in\nsubparagraph 7.1(b) and paragraph 7.2 above to Other NCOSs as defined therein.\nAll such porting shall take place at Netscape's facilities and shall be subject\nto the terms of Section 14.13 of the OEM Agreement.\n\n                           c. OWNERSHIP. All ported Source Code for the Netscape\nTechnology developed under (a) above shall be owned by NCI, subject to\nNetscape's rights in the underlying Netscape Technology. All ports of the Source\nCode for the Netscape Technology developed under (b) above shall be Derivative\nWorks (as defined in the OEM Agreement) and owned by Netscape, subject to NCI's\nownership in the underlying NCI Version. Nothing in this Agreement or otherwise\nshall prevent or restrict Netscape from developing and\/or exploiting ports of\nthe Netscape Technology or Netscape Tools to any platform.\n\n                           d. TERMS. With respect only to the NCI Version, and\nsubject to the limitations set forth in paragraph 7, the license grants to NCI\nin paragraph 7 hereof and to Oracle in Sections 2.1 and 3.3 of the OEM Agreement\nshall survive the termination of the agreement and shall continue in perpetuity.\n\n                           e. FCS. The requirement of production release\/FCS\n(First Customer Ship) with respect to when Navio client products are available\nto Oracle under Section 1.7 of the OEM Agreement is hereby deleted.\n\n         9. INDEMNIFICATION. Netscape's indemnification obligations under\nSections 10.1 and 10.2 of the OEM Agreement shall apply to the Netscape\nTechnology licensed under the Navio Agreement and this letter agreement as if\nset forth therein and herein. Similarly, such sections shall apply and NCI shall\nhave such obligations to Netscape, MUTATIS MUTANDIS, with respect to the TVsoft\nTechnology licensed to Netscape under such Navio Agreement and this letter\nagreement. Both party's indemnification obligations shall be subject to the\nlimitation of liability set forth in Section 11.3 of the OEM Agreement;\nprovided, however, that each party's\n\n\n\nMay 16, 1997\nPage 8\n\naggregate liability thereunder shall be limited to $10,000,000, except with\nrespect to any claims brought under the IBM Agreement, in which event the limit\nfor each party shall be $20,000,000.\n\n         10. ASSIGNMENT. Section 17.3(a) of the Navio Agreement ('Assignment'),\nis amended and restated as follows:\n\n                  NCI shall have the right to assign its rights and obligations\n                  hereunder to Oracle Corporation ('Oracle'), subject to the\n                  following conditions precedent: (1) such assignment shall be\n                  in connection with an acquisition by Oracle of all of the\n                  equity or all of the assets of NCI; (2) Oracle shall agree in\n                  a separate writing delivered to Netscape to be bound by and\n                  perform all of NCI's obligations under this License Agreement;\n                  and (3) such assignment shall not be effected unless and until\n                  (i) six (6) months have passed since the Final Update Delivery\n                  Date and (ii) Oracle shall have agreed in writing that, for an\n                  additional six (6) month period commencing on the expiration\n                  of the period referred to in (i), no Oracle employee shall\n                  have access to the source code for any product incorporating\n                  or based on any Netscape Technology, other than for the\n                  purpose of continuing to develop the NCI products being\n                  developed at the time of the acquisition, and not any other\n                  Oracle product.\n\n         Further, NCI shall have the right to assign its rights under this\nletter agreement, the Navio Agreement and the OEM Agreement to any entity other\nthan Microsoft or Oracle (except as described in the immediately preceding\nparagraph) that succeeds to all of the business or assets of NCI subject to the\nfollowing conditions precedent: (1) such assignee shall agree in a separate\nwriting delivered to Netscape to be bound by and perform all of NCI's\nobligations under this letter agreement, the Navio Agreement and OEM Agreement;\nand (2) such assignment shall not be effected unless and until fifteen (15)\nmonths have passed since the Final Update Delivery Date.\n\n         11. PATENTS. The following changes shall be made to Section 3 of the\nNavio Agreement.\n\n                           a.       Section 3.3 shall be omitted and replaced\n                                    with the following:\n\n                                    NCI INVENTIONS. NCI shall be the owner of\n                                    any Inventions it develops ('NCI\n                                    Inventions'). As used in this Section 3.3,\n                                    'NCI Licensed Patents' means any issued\n                                    patents that claim any NCI Invention arising\n                                    from the Netscape Technology or Netscape\n                                    Tools and covering or reading on any\n                                    Netscape Technology or Netscape Tools, or\n                                    any Derivative Work of Netscape Technology\n                                    or Netscape Tools. NCI hereby grants to\n                                    Netscape a perpetual, irrevocable,\n                                    non-exclusive, non-transferable, fully\n                                    paid-up right and license, with the right to\n                                    grant and authorize sublicenses, under any\n                                    and all NCI Licensed Patents, to make, have\n                                    made, use, offer to sell, sell, import and\n                                    export any products and items.\n\n                           b.       A new Section 3.4 shall be inserted, which\n                                    shall be as follows:\n\n                                    NETSCAPE INVENTIONS. Netscape shall be the\n                                    sole owner of any Inventions it develops\n                                    ('Netscape Inventions'). As used in this\n                                    Section 3.4, 'Netscape Licensed Patents'\n                                    means any issued patents that claim any\n                                    Netscape Invention arising from the NCI\n                                    (TVsoft) Technology or NCI (TVsoft) Tools\n                                    and covering\n\n\n\nMay 16, 1997\nPage 9\n\n                                    or reading on any NCI Technology or NCI\n                                    Tool, or any Derivative Work of NCI\n                                    Technology or NCI Tools. Netscape hereby\n                                    grants to NCI a perpetual, irrevocable,\n                                    non-exclusive, non-transferable, fully\n                                    paid-up right and license, with the right to\n                                    grant and authorize sublicenses, under any\n                                    and all Netscape Licensed Patents, to make,\n                                    have made, use, offer to sell, sell, import\n                                    and export any products and items.\n\n                           c.       Former Section 3.4, Inventions Generally,\n                                    shall become Section 3.5.\n\n         12. TECHNICAL SUPPORT. Section 6 of the Navio Agreement (Support) is\nhereby deleted. NCI shall have the right to purchase the following support\nservices:\n\n                           a. AUTOMATED SERVICES: Subject to the limitation on\nsource code access beyond the 4.0 Code and 4.0 Updates, as set forth in\nparagraph 3 above, NCI shall be allowed access to Netscape's standard automated\ndeveloper support services, 'Netscape DevEdge Gold', for access by up to 15\ndevelopers. Such services currently include FAQs, Bug Reporting, Known Bugs,\nNewsgroups, Documentation, and Sample Code. Such services may be modified during\nsuch period as Netscape Determines for all similarly situated developers.\n\n                           b. ENGINEERING SUPPORT: Netscape shall provide to NCI\nthe following as Non-Recurring Engineering (NRE) support for the Netscape source\ncode: Support for the preparation of source drops, training on the source code\nbuild process, account management and code drops of the Netscape test suites.\nEngineering support contact for inquiries regarding the Netscape Technology will\nalso be provided under this support service via the Netscape OEM Support\nprocess.\n\n                           c. BINARY SUPPORT SERVICES: Per the OEM Agreement,\nAttachment D, through Netscape Support).\n\n         NCI shall pay Netscape the sum of $250,000, payable annually in\nadvance, with respect to such support services. NCI here by agrees to purchase\nsuch support for the annual period commencing on the Effective Time and Netscape\nagrees to extend NCI a discount of $75,000 with respect to such period. NCI\nshall have the right to purchase one (1) additional year of such support on\nnotice to Netscape not less than thirty (30) days prior to the first anniversary\nof the effective Time for an additional payment of $250,000. Amounts paid by NCI\nunder this paragraph 12 shall be credited against any amounts due to Netscape\nfrom Oracle under Section 3 Exhibit B to the OEM Agreement. Subject to NCl's\npayment of the $175,000 referred to above, neither Oracle or NCI shall owe any\nadditional payment for technical support as set forth in this paragraph through\nthe first anniversary of the Effective Time. In the event that during such\nperiod NCI and\/or Oracle uses or requests to use more support services than\nprovided in this paragraph, then Oracle or NCI, as applicable, shall pay\nNetscape for such additional services as available.\n\n         13. TRADEMARKS. The Trademark Agreement between Navio and Netscape\nentered into concurrently with the Navio Agreement (the 'Trademark Agreement')\nis hereby amended to set forth the following as the definition of 'Licensed\nTrademark' therein:\n\n                                    a. for the NCI Version distributed in a\n                  manner in which the NCI Version is substantially similar in\n                  appearance and functionality to the Netscape Navigator, then\n                  NCI shall either (i) place Netscape's 'N Animation' logo in\n                  the upper right corner of the NCI Version\n\n\n\nMay 16, 1997\nPage 10\n\n                  screen in accordance with Netscape's standard trademark\n                  guidelines or (ii) place NCI's designated logo in such\n                  position (i.e., upper right hand corner) and place the\n                  Netscape logo on the toolbar or a position of equivalent\n                  prominence approved in advance by Netscape; and\n\n                                    b. for Consumer Hardware Products, NCI shall\n                  follow the standards in (a) above where practicable. Where\n                  such is not practicable, whether for reasons of memory, space\n                  or otherwise, then during the startup sequence of any such\n                  product the phrase 'Netscape Technology Inside' or a similar\n                  phrase designated In writing by Netscape shall prominently\n                  appear. NCI shall use 'Netscape Technology Inside' until such\n                  time as NCI and Netscape mutually agree upon an alternate\n                  mark.\n\n         Netscape shall provide all copy and artwork for the foregoing mark\nplacements and NCI shall not change or revise same except with Netscape's prior\nwritten approval in each case. Any use of Netscape trademarks shall be subject\nto Netscape's standard trademark guidelines.\n\n         The foregoing obligations shall continue until the later to occur of\n(i) the OEM Termination Date and (ii) the date that the applicable NCI Version\nor Consumer Hardware Device no longer comprised of a material portion of\nNetscape Technology code. At such time NCI shall cease using such marks. NCI\nacknowledges the high quality reputation and goodwill associated with Netscape\nand its marks. In the event that Netscape shall at any time reasonably determine\nthat the NCI's use of the Netscape trademarks will negatively affect such\nreputation and goodwill, then Netscape shall have the right to cause NCI to\npromptly discontinue such use of the Netscape trademarks on notice to NCI and\nNCI shall take prompt action to cure any such negative use.\n\n         Netscape acknowledges that Navio has shipped product without the\napplication of a Licensed Trademark in a manner that may not be consistent with\nNavio's obligations under the Trademark Agreement. NCI shall promptly begin\nusing such mark in such manner. Netscape hereby agrees not to assert any claim\nit may have against Navio in connection with such failure.\n\n         14. DISPUTE RESOLUTION. Prior to the commencement of any action\nhereunder, the parties will follow the dispute resolution process set forth in\nthis paragraph. Promptly following any event that may give rise to a dispute,\nbut in any event prior to the commencement of any action, the individuals\nworking on the particular matter will meet and confer. In the event that such\nindividuals are unable to resolve the dispute within 3 days, the matter will be\nreferred to Jerry Baker, on behalf of NCI, David Roux, on behalf of Oracle, and\nRoberta Katz on behalf of Netscape. Those three persons will meet and confer\nregarding the problem and attempt to resolve it in good faith for a period of\nnot less than 20 days, following which time the aggrieved party may commence any\nappropriate action.\n\n         15. COUNTERPARTS. This letter agreement may be executed in any number\nof counter parts, each of which shall be an original, but all of which together\nshall constitute one instrument.\n\n\n\nMay 16, 1997\nPage 11\n\n         The OEM Agreement, the Navio Agreement and the Trademark Agreement are\nhereby amended, but only to the extent required to effect the express intent of\nthe foregoing. Except as expressly set forth herein, the OEM Agreement, the\nNavio Agreement and the Trademark Agreement shall continue in force and effect\nin accordance with their terms. If the foregoing represents your understanding\nof our agreement, please countersign this letter where indicated below.\n\n\n                                    Sincerely\n\n                                    NETSCAPE COMMUNICATIONS CORPORATION\n\n                                    By:             \/s\/ [Illegible]\n                                           ------------------------------------\n                                    Title:     Senior Vice President and\n                                           ------------------------------------\n                                                 Chief Financial Officer\n                                           ------------------------------------\n\n                                    Date:               5\/16\/97\n                                           ------------------------------------\n\n\nAccepted and agreed to:\n\n\nNETWORK COMPUTER, INC.              ORACLE CORPORATION\n\nBy:       \/s\/ Jerry Baker           By:              \/s\/ David Roux\n      ------------------------             ------------------------------------\n         Jerry Baker                         David Roux\n\nTitle:                              Title:\n      ------------------------             ------------------------------------\n\nDate:        5\/16\/97                Date:              5\/16\/97\n      ------------------------             ------------------------------------\n\n\nNAVIO COMMUNICATIONS, INC.\n\nBy:        \/s\/ Dr. Wei Yen\n      ------------------------\n       Dr. Wei Yen\n\nTitle:  President and CEO\n      ------------------------\n\nDate:        5\/16\/97\n      ------------------------\n\n\n\nMay 16, 1997\nPage 12\n\n\n                                    EXHIBIT A\n\n              LETTER AGREEMENT DATED MAY BETWEEN NETSCAPE AND NAVIO\n\n\n\n\nMay 16, 1997\nPage 13\n\n\n                                    EXHIBIT B\n\n                                Operating Systems\n\nAll PC platforms currently supported by NSCP software: Win 3.1, Win95, NT, Mac\nPPC, Mac68K, DEC UNIX, Calders, IBMAIX, HP UX, SGI IRIX, Sun OS, Solaris, SCO,\nO\/S2 and NetWare.\n\n\n\n\n                       NETSCAPE COMMUNICATIONS CORPORATION\n                             501 E. Middlefield Rd.\n                             Mountain View, CA 94043\n\n                                  May 16, 1997\n\n\nDr. Wei Yen\nNavio Communications, Inc.\n870 W. Maude Ave.\nSunnyvale. California 94086\n\n\n         RE: SOURCE CODE LICENSE AGREEMENT DATED JULY 9, 1996\n             (THE 'LICENSE AGREEMENT')\n\n\nDear Dr. Yen:\n\n         This letter, when countersigned by you below, will reflect our\nagreement regarding certain aspects of the acquisition of Navio Communications.\nInc. (formerly 'TVsoft Corporation') ('Navio') by Network Computer, Inc.\n('NCI'). Netscape Communications Corporation ('Netscape'), NCI, and Oracle\nCorporation ('Oracle') are entering into a Merger Agreement ('Merger Agreement')\nconcurrently with the signing of this letter. Netscape and Navio are parties to\nthat certain Source Code License Agreement dated July 9, 1996 (the 'License\nAgreement') and a Trademark Agreement ('Trademark Agreement'), also of such\ndate. Navio, Netscape, Oracle and NCI have also entered into a letter agreement\nof even date herewith ('Letter Agreement') amending the Agreement in some\nrespects. As an inducement for Netscape to enter into the Merger Agreement, and\nfor other good and valuable consideration, we hereby agree to amend the\nAgreement further as follows, all effective as of the date hereof unless\notherwise indicated'\n\n1.       Netscape shall no longer have any obligations under Section 8.2 of the\n         License Agreement. Navio shall no longer have any obligations under\n         Section 8.3 of the License Agreement. In the event that the Effective\n         Time, as defined in the Merger Agreement, has not occurred within\n         seventy-five (75) days of the date hereof, then in such event at\n         Netscape's discretion either (i) the parties will take such actions as\n         may be necessary to reinstate the foregoing Sections of the License\n         Agreement, or (ii) Netscape shall promptly take such actions as may be\n         necessary to reduce its equity ownership interest in Navio (by offering\n         to contribute, at no cost to Navio, shares directly to Navio's\n         treasury) to that number of shares required to cause a Divestiture\n         Event.\n\n2.       Section 16 of the Agreement is hereby deleted.\n\nThe Agreement is hereby amended, but only to the extent required to effect the\nexpress intent of the foregoing. All references to the License Agreement in any\nother document shall be deemed to refer to the License Agreement as modified by\nthis Amendment. Except as modified by this Amendment, the License Agreement\nshall remain in full force and effect and shall be enforceable in accordance\nwith its terms. In the event that the terms of this Amendment conflict with the\nterms of the License Agreement or its exhibits, the terms of this Amendment\nshall be deemed to govern.\n\n\n\nExcept as expressly set forth herein, the Agreement shall continue in force and\neffect in accordance with its terms. If the foregoing represents your\nunderstanding of our agreement, please countersign this letter where indicated\nbelow.\n\n\n                                    Sincerely\n\n                                    NETSCAPE COMMUNICATIONS CORPORATION\n\n                                    By:          \/s\/ [Illegible]\n                                           ----------------------------------\n                                    Title: Senior Vice President and Chief\n                                           Financial Officer\n                                           ----------------------------------\n\n                                    Date:             5\/16\/97\n                                           ----------------------------------\n\n\nAccepted and agreed to:\n\n\nNAVIO COMMUNICATIONS, INC.\n\nBy:          \/s\/ Dr. Wei Yen\n        ------------------------\n        Dr. Wei Yen\n\nTitle:     President and CEO\n        ------------------------\n\nDate:            5\/16\/97\n        ------------------------\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8051,8328,8419],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9622,9626],"class_list":["post-43438","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-liberate-technologies","corporate_contracts_companies-netscape-communications-corp","corporate_contracts_companies-oracle-corp","corporate_contracts_industries-technology__software","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43438","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43438"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43438"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43438"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43438"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}