EXHIBIT 10.4.3
THIRD AMENDMENT TO NETOBJECTS LICENSE AGREEMENT
Agreement Number: L97063
Third Amendment, effective December 16, 1997 (the "Amendment) to the
NetObjects License Agreement, dated March 18, 1997 (the "Agreement"), between
NetObjects Corporation with an address at 000 Xxxxxxxxx Xxxxx, Xxxxxxx Xxxx,
Xxxxxxxxxx 00000 ("NETOBJECTS") and International Business Machines Corporation
with an address at Xxxxx 000, Xxxxxx, Xxx Xxxx 00000 ("IBM"). All capitalized
terms and definitions used in this Amendment and not otherwise defined herein
shall have the meanings given them in the Agreement.
In consideration of the covenants and agreements contained herein, the
parties hereto agree to amend the Agreement as follows:
I. EXHIBIT A OF THE AGREEMENT IS HEREBY AMENDED AS FOLLOWS.
The definition of Object Code Licensed Work is hereby deleted in its
entirety and replaced with the following:
"Object Code Licensed Work: NETOBJECTS Fusion ("Fusion"), Team Fusion ("Team
Fusion") and all future updates, versions, successor products and derivative
works of each of the foregoing products."
II. THE FOLLOWING IS HEREBY ADDED TO THE AGREEMENT AS SECTION 11.
11.0 LOCALIZATION OF LICENSED WORK
11.1 NETOBJECTS grants to IBM, a nonexclusive, worldwide right and
license, without right to sublicense (except to its Subsidiaries and
subcontractors), to use the Licensed Work in source code form and related
documentation and specifications solely for the purpose of enabling it and
translating it into all IBM Group 1 languages (attached as Appendix A), (the
"Translated Versions"). Each Translated Version shall be deemed a Derivative
Work as defined in the Agreement. The rights and licenses granted by NETOBJECTS
to IBM under this Section 11.1 include the right of IBM to authorize or
sublicense its Subsidiaries and subcontractors, to exercise any of the rights
granted to IBM hereunder. The Translated Versions shall be created by Lotus
Development Corporation, a wholly owned subsidiary of IBM ("LOTUS").
11.2 Promptly following execution of this Amendment, NETOBJECTS AND LOTUS
shall jointly develop and agree upon a project plan (the "Project Plan") for
creation of the Translated Versions. NETOBJECTS shall provide engineering and
business assistance to LOTUS, as may be required, to support LOTUS in completing
the work under the Project Plan. The Project Plan shall include a projected
budget for the total cost of developing the Translated Versions (the "Budget"),
projected expenses for each Translated Version, and the projected date of
completion for each Translated Version. In the fourth quarter of each calendar
year, LOTUS shall provide NETOBJECTS with an updated Budget and an estimate of
the expenditures for the coming year. Any changes to the Budget and/or
completion dates, shall be agreed to in advance by both parties.
11.3 TRANSLATION COST. Lotus shall track the amount spent developing the
Translated Versions and shall submit the amount to NETOBJECTS in quarterly
invoices. The total amount spent by LOTUS, on the Translated Versions, from the
date the development work begins until December 31, 1999 shall be referred to
herein as the ("Translation Cost").
11.4 Lotus shall perform the development work to enable Fusion, version 2,
to be translated. Until December 31, 1999, Lotus shall be responsible for
translating Fusion into the IBM Group 1 languages; thereafter, NETOBJECTS may
elect to have Lotus continue the translation work or may seek an alternative
vendor.
11.5 NETOBJECTS shall own all rights, title and interest in and to the
Translated Versions. LOTUS hereby assigns and transfers to NETOBJECTS all
ownership rights it may have in the Translated Versions. LOTUS shall transfer
source code and the Translated Versions to NETOBJECTS upon completion of agreed
to Project Plan for each language.
11.6 ENABLEMENT OF FUSION 3.0.
(a) Ninety (90) days after first customer ship of Fusion 3.0, NETOBJECTS
shall deliver to Lotus a version of Fusion 3.0 that is fully enabled for
international use and ready for translation. LOTUS and IBM shall assist
NETOBJECTS by consulting on this process and by providing NETOBJECTS with a copy
of Lotus' enablement procedures contained in the "ISV Development Checklist"
which is attached as Exhibit A and incorporated by reference.
(b) In the event that NETOBJECTS is unable to deliver the fully-enabled
version of Fusion 3.0 in the time frame provided above, Lotus may, at its
option, enable Fusion 3.0 and the cost of such development work shall be
included in the Translation Cost.
11.7. DISTRIBUTION.
(a) NETOBJECTS hereby grants IBM a nonexclusive, worldwide, irrevocable
license during the Term (as defined in Section 8.1) to use, execute, reproduce,
display, perform, transfer, distribute, transmit and sublicense the Translated
Versions in Object Code form, in any medium or distribution technology
whatsoever, whether now known or hereafter invented. The rights and licenses
granted by NETOBJECTS to IBM under this Section 11.8 include the right of IBM to
authorize or sublicense its Subsidiaries, subcontractors, and Distributors to
exercise any of the rights granted to IBM hereunder.
(b) NETOBJECTS will establish an Estimated Retail Price ("ERP") for each
of the Translated Versions.
(c) Maintenance and support for the Licensed Works shall be provided, in
accordance with Exhibit F of the Agreement.
11.8 REPAYMENT.
(a) NETOBJECTS shall reimburse IBM by giving it a [***] percent ([***]%)
discount off of royalties owed, under the Agreement, for sales of the Licensed
Work in markets outside of the U.S. (the "Royalty Discount"). The cumulative
Royalty Discount shall be tracked and reported to NETOBJECTS on a quarterly
basis. The Royalty Discount shall be IBM's sole means of recovering the
Translation Cost.
(b) If on or before December 31, 1999, the cumulative Royalty Discount is
equal to or greater than the Translation Cost multiplied by [***], then the
Translation Cost will have been repaid in full and Royalty Discount shall no
longer remain in effect.
(c) Between December 31, 1999 and December 31, 2000, if the cumulative
Royalty Discount is equal to or greater than the Translation Cost multiplied by
[***], then the Translation Cost will have been repaid in full and the Royalty
Discount shall no longer remain in effect.
(d) If on or before December 31, 2000, the cumulative Royalty Discount is
not equal to or greater than the Translation Cost multiplied by [***], then IBM
shall continue to receive the Royalty Discount until such time as the cumulative
Royalty Discount equals the Translation Cost multiplied by [***].
11.9 PUBLIC ANNOUNCEMENTS.
Prior to execution of this Amendment, neither party shall make any public
announcements about this Amendment or the parties' discussions without the
other party's prior written consent. The parties agree that any announcements
concerning this Amendment shall be a mutually agreed upon joint announcement.
The Agreement remains in full force and effect in accordance with its
terms, except as such terms have been expressly modified by this Amendment. In
the event of any conflict between the terms of this Amendment and the terms of
the Agreement, this Amendment shall control. This Amendment constitutes the
entire understanding of the parties with respect to its subject matter and
merges and supersedes all prior communications, understandings and agreements
between the parties concerning the subject matter hereof. This Agreement shall
not be modified except by a writing subsequently dated, signed on behalf of each
party by a duly authorized representative.
Executed by the authorized representatives of the parties as of the date
first set forth above.
NETOBJECTS, INC. INTERNATIONAL BUSINESS MACHINES
CORPORATION
By: By:
Name: Name:
Title: Title:
Date:_________________________________ Date:_________________________________
*** Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
