OEM LICENSE AGREEMENT FOR ALTAVISTA TECHNOLOGY FNC.'S PRODUCTS
(Reproducing)
This Agreement (the "Agreement") is made by and between AltaVista
Technology Inc. ("AVT"), having its principal place of business at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ #▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and AITech International ("OEM"), having
its principal place of business at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ for the
purpose of licensing AVT's software produces for bundling with certain of OEM's
products. The effective date of this Agreement shall be the latest date set
forth on the signature page of this Agreement (the "Effective Date").
The parties agree as follows:
1. DEFINITIONS.
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1.1 Documentation is defined as (i) AVT's End User manuals, and (ii) the End
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User license agreement, (iii) the End User warranty statement all of which
are intended to be provided to the End User in on-line format.
1.2 End User(s)is defined as a third party wing the Programs for ordinary
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and customary business or for personal purposes, and not for redistribution.
1.3 Master Copy is defined as the Program in machine readable form embodied
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on magnetic media to be used in making serialized reproductions of the AVT
Program.
1.4 New Release is defined as the then-current release of a particular
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Program designated by AVT by a change in the version number digits of the tenths
decimal place, or one decimal to the left of the decimal point.
1.5 OEM Hardware & Software is defined as the hardware and software
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developed by OEM that is marketed by or supported by OEM
1.6 Programs are defined as the AVT proprietary computer program products
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listed in Exhibit A ("AVT Programs"). The list in Exhibit A ("AVT Programs")
may be amended in writing by the parties from time to time.
2. LICENSE AND OEM CERTIFICATION.
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2.l OEM Certification. OEM certifies that the Programs and Documentation
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acquired under this Agreement we to be distributed with the OEM Hardware &
Software which is remarketed to unaffiliated third-party End Users, value-added
dealers, distributors, systems integrators, and retail dealers in the regular
course of OEM's business. OEM acknowledges that any other transfer of the
Programs and Documentation acquired pursuant to this Agreement is expressly
prohibited.
2.2 Bundling. OEM agrees to bundle the Programs and Documentation with
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shipments of its OEM Hardware & Software during the term of the Agreement. OEM
understands and agrees that it has no right to distribute the Programs
separately or unbundled from the OEM Hardware & Software.
2.3 Distribution License Grant. AVT hereby grants to OEM and OEM hereby
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accepts from AVT, in accordance with the terms and conditions of this Agreement,
a non-exclusive, worldwide, non-transferable license, for the fee set forth in
Section 5 ("Royalties") to distribute the Programs and Documentation bundled
with the OEM Hardware & Software directly and indirectly through OEM's usual
channels of distribution.
2.4 Reproduction.
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2.4.1 Reproduction of the Program. AVT hereby grants to OEM in
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accordance with the terms and conditions of this Agreement, a non-exclusive,
worldwide, non-transferable license, to reproduce copies of the Programs, made
from the Master Copy. OEM may not sublicense its right to reproduce the Programs
to any third party unless AVT consents in writing to the sublicense. OEM may
use its own company label as the main label on the media containing the
Programs, provided, however, that each copy of the media embodying the Programs,
other than a hard disk, must contain (i) a label bearing the same AVT copyright
notice as contained on the label on the Master Copy received from AVT and (ii) a
label bearing the particular Program trademark.
2.5 Limited Right to Use Trademarks. AVT hereby grants to OEM a
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non-exclusive, nontransferable limited right, to the extent that AVT has the
authority to grant such limited right, to use the relevant AVT trademarks on the
Programs and in OEM's product literature, promotion and advertising for the
Programs. OEM agrees that it will include the AVT trademarks on the Programs
and in any literature, Promotion or advertising concerning the Programs or
the features or functionality provided to the OEM Hardware & Software by the
Programs.
3. DELIVERY.
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3.1 Delivery of the Master Copy. AVT shall deliver to OEM a Master Copy of
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the particular Program(s) ten (IO)days after the execution of this Agreement.
4. MAFNTENANCE AND SUPPORT.
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4.1 End User Support. AVT shall provide End User warranty and continuing
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support for Programs directly to End Users by telephone during normal business
hours in accordance with AVT's standard customer support policies and
then-current rates.
4.2 End User Warranty. AVT warrants the Programs only pursuant to the
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terms and conditions of the End User license agreement and warranty statement
provided with the Documentation and no warranty is extended to OEM except as an
End User.
4.3 Support to OEM. For the term of this agreement and any renewals
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thereof, AVT shall, during normal business hours, provide to OEM telephone
assistance and response to written requests received by telecopy concerning
Program errors and possible work wounds for AVT's then-current release of the
Programs or the then-immediately prior release, at the same level m AVT supplies
to its End User customers under the Standard Passport Support Program.
5. ROYALTIES.
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5.1 Royalty The royalty rate for the Software Product shall be $0.00 per
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copy of the Howdy Software Product bundled with the Combined Product throughout
the term of this agreement. There shall be no royalty due for WebCannon. There
shall be no royalty due for my backup or replacement copies and OEM shall be
given full credit in the mount of full royalty paid by OEM for my for my
Software bundle that is returned to OEM. OEM agrees to make quarterly reports
and payments to AVT within thirty (30) days after the end of each quarter. Each
report shall specify the number of Combined Products shipped during that month,
5.3 Taxes and Fees. In addition to any other charges due under this
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Agreement, OEM agrees to pay, indemnify and hold AVT harmless from any sales,
use, excise, import or export, value added or similar tax, not based on AVT 's
net income or my other duty or fee (collectively tire "Taxes") and any penalties
or interest associated with any of the Taxes, imposed by my governmental
authority with respect to either or both of any payment to be made by OEM to
under this Agreement or any Program package to be delivered by AVT to OEM under
this Agreement.
5.4 Payment Upon Termination. Upon termination of this Agreement, the
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payment date of all monies due AVT shall automatically be accelerated so that
they shall become due and payable on the effective date of termination, even if
longer terms had been provided previously.
5.5 Shipping Costs and Insurance. All shipping charges and insurance shall
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be borne by OEM, and said charges will appear on AVT's invoice OEM shall, at its
expense, make and negotiate all claims against any carrier, for any loss or
damage.
5.6 Revenue Sharing Program. AVT will pay OEM 20% of the one yen hosting fee
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for any customer who signs up for one (1) year of hosting with AVT. The
percentage will be based on the amount of the hosting fee at the time the user
registers for the service. AVT reserves the right to change the price of the
one (1) year hosting fee at any time. Tracking is done by a private file that
is sent to AVT via e-mail by any OEM Customer that is using AVT to host their
site. Payment will only be made for customers whose e-mail contains this file.
Payments will be made to the OEM within thirty (30) days after the end of each
quarter.
6. TERM OF AGREEMENT. The term of the Agreement shall commence on the
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Effective Date and unless sooner terminated in accordance with the terms of this
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Agreement, shall continue for one (1) year (the "Initial Tem"). The Agreement
will renew automatically for successive one (1) year terms (the "Renewal Terms")
unless written notice of termination is received by either parry thirty (30)
days prior to the end of the Initial Term or any Renewal term.
7. OWNERSHIP OF PROPRIETARY RIGHTS AND RESTRICTED RIGHTS.
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7.1 Proprietary Rights. OEM acknowledges that the Programs,
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Documentation, including the structure, sequence and organization of the
Programs are proprietary to AVT and that AVT retains exclusive ownership of the
Programs, Documentation and proprietary rights associated with the Programs, and
Documentation, OEM ▇▇▇▇ take all reasonable measures to protect AVT s
proprietary rights in the Programs, Documentation including AVT's patents,
trademarks, copyrights and trade secrets. Except m provided herein, OEM is not
granted any rights to patents, copyrights, trade secrets, trade names,
trademarks (whether registered or unregistered), or any other rights, franchises
or licenses with respect to the Programs, and Documentation.
8. NON-DISCLOSURE. During the term of this Agreement, certain information
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will be disclosed to OEM concerning the Programs, proposed new AVT software,
pricing, business plans and customers which is the confidential and proprietary
information of AVT and not generally known to the public (herein "Confidential
Information"). OEM agrees that during and after the term of this Agreement, it
will not use or disclose to any third parry any Confidential Information without
the prior written consent of AVT. AVT hereby consent to the disclosure of its
Confidential Information to certain employees of OEM w is reasonably necessary
in Order to allow OEM to perform Under this Agreement and to obtain the benefits
This Paragraph shall not apply to proposed new Program information after such
information is made public by AVT.
9. PROPRIETARY RIGHTS INDEMNITY. AVT shall defend at its own expense my
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claim, suit or proceeding brought against OEM insofar as it is based on a claim
that a Program constitutes a direct infringement of a U.S. copyright of a third
party. To qualify for such defense and payment OEM must- (i) give AVT prompt
written notice of my such claim; and (if) allow AVT to control and fully
cooperate with AVT in the defense and all related settlement negotiations. AVT
shall pay all damages (including reasonable attorneys' fees) finally awarded to
third panics against OEM which OEM is obligated to pay but shall not be
responsible for my compromise made without its consent. Upon notice of an
alleged infringement or if in AVT's opinion such a claim is likely, AVT shall
have the right, at its option, to obtain the right to continue the distribution
of the Programs, substitute other computer software with similar operating
capabilities, or modify the Program so that it is no longer infringing. In the
event that none of the above options we reasonably available in AVT's opinion,
OEMs sole and exclusive remedy shall be to terminate this Agreement, return all
copies of the Documentation paid for and in OEM's inventory and obtain a refund
from AVT of the fee paid by OEM for such Documentation inventory. THE FOREGOING
STATES OEM's SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF
THIRD PARTY PROPRIETARY RIGHTS OF ANY KIND. AVT will have no liability to OEM
if any alleged copyright infringement or claim thereof is based upon the use of
the Programs in connection or in combination with equipment, devices or software
not delivered by AVT (if such infringement or claim would have been avoided by
the use of the Programs with other equipment, devices or software) or use of the
Programs in a manner for which they were not intended or use of other than the
most current release of the Programs if such claim would have been prevented by
the use of such most current release.
10. LIMITATIONS AND DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN
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THE END USER LICENSE AND WARRANTY STATEMENT, AVT MAKES NO OTHER WARRANTIES
RELATING TO THE PROGRAMS, EXPRESS, OR IMPLIED, AND EXPRESSLY EXCLUDES ANY
WARRANTY OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR
MERCFIANTABILITY. NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR
REPRESENTATION CONCERNING THE PROGRAMS OTHER THAN AS PROVIDED IN THE END USER
LICENSE AND WARRANTY STATEMENT. OEM SHALL MAKE NO OTHER WARRANTY, EXPRESS OR
IMPLIED, ON BEHALF OF AVT.
11. INDEMNITY. OEM agrees to indemnify and bold AVT harmless from any claim
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or damages (inclusive of AVT's attorneys' fees)
m
fOEMorrepresentativesofOEM. OEM shall be solely responsible for my claims,
warranties or representations made by OEM or OEM's employees or agents which
differ from the warranty provided by AVT in its End User agreement.
12. CONSEQUENTIAL DAMAGES WAIVER. AVT WILL NOT BE LIABLE FOR ANY LOSS OF
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USE, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE
FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT
LIABILITY OR OTHERWISE, EVEN IF AVT HAS BEEN ADVISED OF THE POSSIBII.ITY OF SUCH
DAMAGES.
11. LIMITATION OF LIABILITY. Notwithstanding any other provisions of this
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Agreement, AVT's total liability to OEM under this
Agreement shall be limited to replacement of the Programs, and
Documentation.
14. TERMINATION.
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14.1 Without Cause. This Agreement may be terminated at any time by
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either party without cause upon thirty (30) days prior written notice.
14.2 With Cause.
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14.2.1 AVT may terminate this Agreement upon thirty (30) days written notice
of a material breach of this Agreement if such breach is not cured within such
thirty (30) day period.
14.2.2 Notwithstanding the above, AVT may terminate this Agreement
immediately, upon written notice, for a material breach of Paragraph 2 ("License
and OEM Certification"), 7 ("Ownership of Proprietary Rights and Restricted
Rights"), 8 ("Non-Disclosure") or the failure to make any payments due under
this Agreement.
14.2.3 AVT may immediately terminate this Agreement after giving written
notice (i) if OEM shall become insolvent, (ii) if OEM shall fail to pay its
obligations as they arise, (iii) upon any proceeding being commenced by or
against OEM under any law providing relief to OEM as debtor, (iv) if OEM shall
make a composition with its creditors, or (v) if OEM shall have a receiver
appointed over the whole or any pan of its assets.
14.3 Rights upon Termination. Upon termination of this Agreement:
14 3.1 OEM's appointment as an authorized OEM for the AVT Programs and
Documentation shall immediately terminate.
14 3.2 OEM shall immediately discontinue all representations that it is an
authorized AVT OEM.
14.3.3 OEM shall have no further right to reproduce the Programs or to
distribute the Programs or Documentation.
14.3.4 OEM shall destroy or create all copies of the Programs and certify such
destruction to AVT in writing within ten (10) days of the termination date.
Additionally, OEM shall immediately return the Master Copy magnetic media to the
AVT.
14.3.4 OEM shall have sixty (60) days from the effective date of termination
to distribute its inventory of the current versions of the Programs and
Documentation in accordance with the terms of this Agreement.
15. NOTICES. All notices permitted or required under this Agreement
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shall be in writing and shall be delivered @ follows with notice
deemed given as indicated: (I) by personal delivery when delivered personally,
(it) by overnight courier upon written notification of receipt, (iii) by
telecopy or facsimile transmission when continued by tclecopier or facsimile
transmission, or (iv) by certified or registered mail, return receipt requested,
five (5) days after deposit in the mail. All notices must be sent to the
address first described above or to such other address that the receiving party
may have provided for the purpose of notice in accordance with this Paragraph
15.
16. FORCE MAIEURE. Neither party shall be liable hereunder by reason of my
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failure or delay in the performance of its obligations hereunder (except for the
payment of money) on account of strikes, shortages, riots, insurrection, fires,
flood, storm, explosions, acts of God, war, governmental action, labor
conditions, earthquakes, or any other cause which is beyond the reasonable
control of such party.
17. WAIVER. The failure of either party to require performance by the other
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party of my provision hereof shall not affect the full right to require such
performance at any time thereafter, nor shall the waiver by either party of a
breach of my provision hereof be taken or held w be a waiver of the provision
itself.
18. SEVERABILITY. In the event that any provision of this Agreement shall be
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unenforceable or invalid under any applicable law or be so held by applicable
court decision, such unenforceability or invalidity shall not render this
Agreement unenforceable or invalid m a whole.
19. INJUNCTIVE RELIEF. It is expressly agreed that a material breach of
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this Agreement will cause irreparable harm to AVT and that a remedy at law would
be inadequate. Therefore, in addition to any and all remedies available at law,
AVT will be entitled to an injunction or other equitable remedies in all legal
proceedings in the event of any threatened or actual violation of my or all of
the above provisions.
20. CONTROLLING LAW. This Agreement shall be governed in all respects by
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the laws of the United States of America and the State of California m such laws
are applied to agreements entered into and to be performed entirely within
California between California residents. OEM and AVT acknowledge that the
United Nations Convention on Contracts for the International Sale of Goods
(1980) is specifically excluded from application to this Agreement, This
Agreement is prepared and executed in the English language only and any
translations of this Agreement into any other language shall have no effect, All
proceedings related to this Agreement shall be conducted in the English language
21. NO AGENCY. Nothing contained herein shall be construed as creating any
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agency, partnership, or other form of joint enterprise between the parties.
22. HEADRNGS. The paragraph headings appearing in this Agreement are
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inserted only as a matter of convenience and in no way define, limit, construe
or describe the scope or extent of such paragraph or in any way affect such
paragraph.
23. SUBCONTRACTING AND ASSIGNMENT. This Agreement shall be binding and
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inure to the benefit of the parties hereto and their respective successor and
assigns, Neither part), shall assign any of its rights nor delegate my of its
obligations under this Agreement to any third party without the express written
consent of the other except to the surviving entity in a merger or consolidation
in which it participates or to a purchaser of all or substantially all of its
assets, so long @ such surviving entity or purchaser shall expressly assume in
writing the performance of all of the terms of this Agreement. Notwithstanding
the foregoing, AVT may sell, pledge or otherwise transfer its right to receive
payments under this Agreement, Any act in derogation of the foregoing shall be
null and void.
24. EXPORT. OEM acknowledges that the laws and regulations of the United
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States may restrict the export and re-export of certain commodities and
technical data of United States origin, including the Programs in any medium OEM
agrees that it will not export or re-export the Programs in any form without the
appropriate United States and foreign government licenses. OEM also agrees that
its obligations Pursuant to this section shall survive and continue after my
termination or expiration of rights under this Agreement.
25. SURVIVAL. The rights and obligations contained in Paragraphs 8
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("Non-Disclosure"), 10 ("Limitations and Disclaimer"), 12 ("Consequential
Damages-Waiver") and 14 ("Termination") shall survive any termination or
expiration of this Agreement.
26. ENTIRE AGREEMENT. This Agreement is the entire agreement between the
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parties regarding its subject matter. It supersedes and its terms govern, all
prior proposals, agreements, or other communications between fire parties, oral
or written regarding such subject matter. This Agreement shall not be modified
unless done so in a writing signed by officers of both AVT and OEM.
IN WITNESS WHEREOF, the duly authorized representatives of the parties have
executed this Agreement.
AVT OEM
Alta Vista Technology, Inc. AITech International
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ #▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
By: s. ▇▇▇▇ ▇▇▇▇▇▇▇▇ By: s. ▇▇▇▇ ▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇
Title: President Title: Chief Operating Officer
Date: 5-22-98 Date: 5-19-98
Exhibit "A"
Programs
Howdy! 2.lx (demo)
WebCannon! 2. 1 x
AVT OEM
Alta Vista Technology, Inc. AITech International
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ #▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Fremont, CA94538
By: s.▇▇▇▇ ▇▇▇▇▇▇▇▇ By: s. ▇▇▇▇ ▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇
Title: President Title: Chief Operating Officer
Date: 5-22-98 Date: 5-19-98
