Exhibit 10.63
AMENDMENT NO. 4
TO THE
POSTSCRIPT SOFTWARE DEVELOPMENT LICENSE
AND SUBLICENSE AGREEMENT
BETWEEN
ADOBE SYSTEMS INCORPORATED
PEERLESS SYSTEMS CORPORATION
Effective Date: July 31, 2003
This Amendment No. 4 (the "Amendment") to the PostScript Software
Development License and Sublicense Agreement dated July 23, 1999 (the
"Agreement") is between Adobe Systems Incorporated, a Delaware corporation
having a place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Adobe") and
Peerless Systems Corporation, a Delaware corporation, having a place of business
at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Peerless").
WHEREAS, the Agreement permits Peerless to use only Authorized Employees,
as that term is defined in the Agreement, to have access to Adobe Core Source
materials; and
WHEREAS, Peerless has allowed * (hereinafter "*") a contractor of Peerless
to have access to Adobe Core Source for the purpose of doing development work on
behalf of Peerless; and
WHEREAS, the parties wish to amend the Agreement to allow Peerless to
provide * with access to the Adobe Core Source solely at a Primary Development
Site and only for the purpose of performing development work on behalf of
Peerless.
NOW, THEREFORE, the parties agree as follows:
1. Notwithstanding the requirement in Paragraph 6 ("PROPRIETARY RIGHTS AND
LEGENDS") that allows only Authorized Employees of Peerless to have access to
Adobe Core Source, Peerless may provide * with access to the Adobe Core Source
and Adobe Support Information solely for performing development work on behalf
of Peerless and only at Primary Development Site(s) and subject to the terms of
the Agreement and this Amendment. Peerless shall ensure that * protects the
Adobe Support Information in accordance with the following requirements:
a. Compliance by * with the requirements in EXHIBIT N-1 ("Secure
Procedures for Handling Adobe Support Information"); and
b. In addition, with respect to the Adobe Core Source, compliance by *
with the requirements in EXHIBIT N-2 ("Additional Secure Procedures for Handling
Adobe Restricted Information"); and
Confidential treatment has been requested for portions of this document.
This copy of the document filed as an Exhibit omits the information subject to
the confidentiality request. Omissions are designated by an asterisk (*). A
complete version of this document has been filed separately with the Securities
and Exchange Commission.
C. *'s access to Adobe Information shall cease immediately if *'s services
to Peerless are terminated for any reason or if * is removed from the project
for which he requires access to the Adobe Support Information.
2. Peerless shall ensure that * is precluded from being employed in any Clone
Product development (either internally or externally) by or for Peerless for a
period of * after *'s last access to Adobe Support Information. In addition,
Peerless shall ensure that Peerless and * have entered into a written agreement
expressly stating that * understands that while employed by Peerless he will
have access to Adobe Core Source which Adobe considers confidential and of a
most sensitive nature and that he agrees to protect Adobe's proprietary rights
in such Adobe Support Information in accordance with the Agreement and this
Amendment, including an agreement by * to refrain from using such confidential
information for any purpose other than to perform development work on behalf of
Peerless and from disclosing such confidential information to a third party
(except to Authorized Employees authorized by Peerless to receive such
confidential information). Such written agreement between Peerless and * shall
include an acknowledgement by * that Adobe is a third party beneficiary to such
agreement to the extent that such agreement contains provisions that relate to
*'s access to and use of the Adobe Support Information and that such third party
beneficiary language is included for the purpose of enabling Adobe to enforce
the provisions of such agreement in a court of law. Such written agreement
between Peerless and * shall contain language to ensure that any work product or
tangible material (including software code) produced by * as a result of his
having access to Adobe Support Information shall be the property of Peerless or
Adobe, as applicable under the Agreement.
3. Peerless warrants to Adobe that to the best of its knowledge the Adobe
Support Information and the Adobe Software while being accessed and used by *
prior to the execution of this Amendment was protected in accordance with
EXHIBIT N-1 ("Secure Procedures for Handling Adobe Support Information") and
EXHIBIT N-2 ("Additional Secure Procedures for Handling Adobe Restricted
Information"). On the basis of such assurances and the assurances by Peerless
that * will continue to fully comply with the terms of the Agreement, including
complying with the requirement to protect the Adobe Core Source in accordance
with EXHIBIT N-1 and EXHIBIT N-2 of the Agreement, Adobe agrees to apply the
terms of this Amendment both retroactively and prospectively to Peerless' use of
* to perform development work at a Primary Development Site, as described
hereunder, prior to as well as subsequent to the execution of this Amendment.
4. The terms of this Amendment shall apply only to the use of *'s services and
does not otherwise modify the terms of the Agreement or allow Peerless to
provide other contractors with access to Adobe Core Source.
5. Any failure by Peerless or by * to comply with the requirements to protect
the Adobe Support Information in accordance with this Amendment shall constitute
a breach by Peerless and Peerless shall be liable for any damages, liabilities
and losses arising out of such breach.
Confidential treatment has been requested for portions of this document. This
copy of the document filed as an Exhibit omits the information subject to the
confidentiality request. Omissions are designated by an asterisk (*). A
complete version of this document has been filed separately with the Securities
and Exchange Commission.
6. All other terms and conditions of the Agreement shall remain in full force
and effect.
IN WITNESS WHEREOF, each of Adobe and Peerless has executed this Amendment No. 4
to the PostScript Software Development License and Sublicense Agreement by its
duly authorized officer.
Adobe Peerless
ADOBE SYSTEMS INCORPORATED PEERLESS SYSTEMS CORPORATION
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Print Print
Name: ▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: SVP Worldwide Sales and Title: Vice President of Finance
Field Operations and CFO
Date: 7/28/03 Date: July 9, 2003
Confidential treatment has been requested for portions of this document.
This copy of the document filed as an Exhibit omits the information subject to
the confidentiality request. Omissions are designated by an asterisk (*). A
complete version of this document has been filed separately with the Securities
and Exchange Commission.