EXHIBIT 10.9(A)
AMENDMENT NO. 1 TO THE
MASTER DEVELOPMENT & LICENSE AGREEMENT
BETWEEN
BSQUARE CORPORATION AND
MICROSOFT CORPORATION
This Amendment No. I to the Master Development & License Agreement is
made and entered into by and between MICROSOFT CORPORATION ("Microsoft") and
BSQUARE CORPORATION ("BSQUARE") to be effective as of the 23rd day of December
1999. Capitalized terms used in this Amendment No. 1 that are not otherwise
described herein shall have the meaning ascribed to such terms in the Agreement.
The parties hereby agree as follows:
Section 2.9 (Non-Competition) of the Agreement is amended and restated to
provide as follows:
2.9 REASSIGNMENT OF PERSONNEL.
2.9.1 General. With regard to any person who has access to (a) the MS
Source Code, product specifications or other similar information or
materials provided by Microsoft under this Agreement or (b) the Microsoft
corporate network, for a period of twelve (12) months following the
persons last such access, BSOUARE shall not assign, without Microsoft's
written permission in each instance, such person, or permit such person,
to work for BSQUARE on any projects involving (i) applications, utilities
or other similar programs for operating systems and application
environments other than those for Microsoft or WebTV Networks, Inc., (ii)
embedded operating system software or application runtime environments or
tools of the type contained in the Windows CE Tools for operating systems
or application environments other than those for Microsoft or WebTV
Networks, Inc. or (ii) design or development of (as opposed to porting
and/or integration of) applications, utilities or other programs that are
directly run or executed by end users of the final device or sold as
commercial products for such end-user usage. This section shall not apply
with respect to the eight (8) people previously identified by BSQUARE in
an email communication as having been reassigned prior to the effective
date of this amendment to positions to the extent that retroactive
application of this Section to those reassignments would render BSQUARE
in breach of this Agreement.
2.9.2 Requests for Consent. Microsoft and BSQUARE acknowledge that from
time to time it may be in the mutual interests of the parties to waive
application of this provision on a case by case basis and the parties
shall discuss those situations in good faith. Any request for waiver of
Section 2.9.1 shall be in writing in each case and a waiver in one case
shall not be deemed a waiver in other or similar cases. Microsoft will
make reasonable efforts to review the request in Microsoft's discretion
and advise BSQUARE of its decision within 5 business days following
Microsoft's receipt of such request. Microsoft's failure to provide a
written response within 10 business days of Microsoft's receipt of such
request from BSQUARE shall be deemed a rejection of the request.
2.9.3 No Use of Microsoft Intellectual Property Upon Reassignment.
Nothing in this Section 2.9 shall be construed to authorize BSQUARE or
any BSQUARE Affiliate to make use of Microsoft's intellectual property
rights during or upon the expiration of the twelve (12) month period set
forth above.
This Amendment shall amend, modify and supersede to the extent of any
inconsistencies, the provisions of the Agreement. Except as expressly amended by
this Amendment, the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment to the
Agreement as of the date set forth above. All signed copies of this amendment to
the Agreement shall be deemed originals. This Amendment shall be effective upon
execution on behalf of BSQUARE and Microsoft by their duly authorized
representatives.
MICROSOFT CORPORATION
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Name (Print)
GM, Windows CE
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Title
5 Jan 00
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Date
BSQUARE CORPORATION
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Name (Print)
CFO
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Title
23 Dec 99
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Date
