8
EXHIBIT 10.18 LICENSING AGREEMENT, AMENDMENT # 1.,
DATED AS OF MARCH 13, 2002, BETWEEN
▇▇▇▇▇▇ ELECTRONICS CORPORATION AND
ANALOG DEVICES, INC.
9
LICENSING AGREEMENT
Between
▇▇▇▇▇▇ Electronics Corporation
And
Analog Devices, Inc.
Amendment #1
This Amendment #1 ("the Amendment"), is entered into this March 13, 2002. When
duly executed by the Parties, this Amendment #1 will be an amendment to the
Licensing Agreement entered into on December 19, 2001 (the "Agreement"), by and
between ▇▇▇▇▇▇ Electronics Corporation ("▇▇▇▇▇▇"), and Analog Devices, Inc.
("ADI").
This Amendment hereby amends the Agreement as follows:
1. GRANT OF LICENSES; PROTECTION OF GOODWILL AND REPUTATION; PATENTS,
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COPYRIGHTS AND TRADEMARKS.
--------------------------
1.1 ▇▇▇▇▇▇ grants to ADI:
a. a worldwide, perpetual, fully paid royalty-bearing license,
including the right to sublicense to ADI CODEC chip customers,
Andrea's PureAudio algorithm and updates for use on PC's,
excluding handheld computing devices such as tablet PCs and
PDAs; and
b. a worldwide, royalty-free license, including the right to
sublicense to ADI CODEC chip customers and/or end users, to
load Andrea's EchoStop and DSDA algorithms and updates for use
on PC's, excluding handheld computing devices such as tablet
PCs and PDAs, subject to said chip customers and/or end users
entering into a terms of use agreement directly with ▇▇▇▇▇▇ to
enable either or both Licensed Algorithms.
Should ADI desire to use the Licensed Algorithms for purposes or
devices other than those described above, the terms of such use shall
be subject to one or more separate license agreements between ADI and
▇▇▇▇▇▇. Updates shall include minor enhancements to performance,
functionality and features. Except as the Parties may otherwise agree,
ADI may not, modify, translate, disassemble, decompile, reverse
engineer or create derivative works based on the Licensed Algorithms.
The Licensed Algorithms are protected by United States and
international copyright law and treaties, as well as other intellectual
property law and treaties, and ADI is granted no title or ownership
rights, in or to the Licensed Algorithms, in whole or in part, and ADI
acknowledges that title to all copyrights, patents, know-how, trade
secrets and/or any other intellectual property rights to and in the
Licensed Algorithms and associated documentation are and shall remain
the property of ▇▇▇▇▇▇ and its successors or assigns. As such, ADI
warrants that it will not sell or sub-license the Licensed Algorithms
except as provided herein.
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2. ROYALTY.
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2.1 In consideration of the license granted under this Section 1.1.a, ADI
shall pay to ▇▇▇▇▇▇ a one-time, lump-sum royalty equal to [*******] U.S. dollars
[*******]. Payment shall be due and payable on May 5, 2002. Notwithstanding the
foregoing, any payments previously made by ADI under the Agreement prior to the
execution of this Amendment shall be credited to the payment of this royalty.
3. JOINT PROMOTION.
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The following sentences are added to the end of this Section 3: It is
also understood that any profits derived from Andrea's products supporting the
Licensed Algorithms, excluding two-channel microphone arrays, that serve as
companions to ADI's products incorporating the Licensed Algorithms will be
divided equally among the Parties. Profits shall be defined as the selling price
of the product less all costs typically associated with manufacturing and
selling the products, including, but not limited to, sales commissions,
marketing and advertising expenses and warranty costs. Notwithstanding the
forgoing, ▇▇▇▇▇▇ shall be entitled to all profits derived from Andrea's
two-channel microphone array.
5. TERM AND TERMINATION.
--------------------
5.1 The term of this Agreement shall commence on May 1, 2002 hereof and
shall continue for a period of one (1) year and shall thereafter automatically
renew for additional one year periods unless ADI expresses its desire not to
renew in writing at least thirty (30) days prior to expiration of the initial or
successive period, or unless ▇▇▇▇▇▇ expresses its desire not to renew in writing
at least one (1) year prior to the expiration of any applicable successive
period commencing on May 5, 2004 or thereafter. Notwithstanding the foregoing,
the license granted to ADI under Section 1.1.a of this Agreement is perpetual
and therefore may not be terminated by ▇▇▇▇▇▇ for any reason other than those in
Section 5.2 of this Agreement.
8. GENERAL PROVISIONS.
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8.11 Survival. The terms of Section 1.4, 1.5, 4, 5.4, 6, 7, 8.1, 8.3, 8.5,
--------
8.6 and 8.8 shall survive expiration or termination of this Agreement, whether
pursuant to Section 5 or otherwise. The terms of Section 8.12 shall survive
expiration or termination of this Agreement unless such termination is pursuant
to Section 5.2 as a result of a breach by ADI.
8.12 Escrow Agreement. Within a commercially reasonable period of time
----------------
following the execution of this Amendment, such period not to exceed 60 days,
▇▇▇▇▇▇ and ADI shall enter into an escrow agreement with an independent third
party escrow agent consistent with the agreement attached as Exhibit A to this
Amendment, to hold the Licensed Technology (as defined below) under this
Agreement in escrow for ADI. All fees due to the escrow agent are to be shared
equally by ▇▇▇▇▇▇ and ADI. Upon execution of the escrow agreement, ▇▇▇▇▇▇ shall
deliver the source code and copies of sufficient technical documentation to
escrow agent to permit ADI to effectively utilize source code of the Licensed
Algorithms, including, but not limited to, all available source
11
documentation for the licensed software and any updates thereof (the "Licensed
Technology"). ADI shall be entitled to release of the Licensed Technology upon:
(a) the rejection or termination of this Agreement, as Amended, by ▇▇▇▇▇▇ or its
successors or representatives in breach of the provisions of the Agreement or
this Agreement, including in all events any rejection or termination of the
Agreement or any proposal to do so under Title 11 of the United States Code, as
now constituted or hereafter amended (the "Bankruptcy Code"), or any other
federal or state bankruptcy, insolvency, receivership, or similar law; (b) the
failure of a trustee, including ▇▇▇▇▇▇ as debtor in possession, in any
bankruptcy case filed by or against ▇▇▇▇▇▇ either to assume the Agreement and
this Amendment within fifteen (15) days after the filing of the initial
bankruptcy petition or to perform the Agreement and this Amendment within the
meaning of Section 365(a)(4)(i) of the Bankruptcy Code; (c) the termination of
substantially all of Andrea's ongoing business operations relating to the
subject to this Agreement as Amended; (d) the liquidation of ▇▇▇▇▇▇, or any
sale, assignment, or foreclosure of or upon assets that are necessary for the
performance by ▇▇▇▇▇▇ of its responsibilities under this Agreement as Amended,
or (e) the transfer of a majority of Andrea's stock or substantially all of its
assets to a competitor of ADI, including but not limited to [*******].
Except as modified by this Amendment, all other terms and conditions of the
Agreement shall remain unchanged and in full force and effect. Once signed, any
reproduction by reliable means (for example, photocopy or facsimile) is an
original unless prohibited by law.
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment #1 as of the
date first written above.
▇▇▇▇▇▇ ELECTRONICS CORPORATION ANALOG DEVICES, INC.
By:/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------- -----------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------
Title: President and Chief Executive Officer Title: Product Line Director
---------------------
12
MASTER PREFERRED ESCROW AGREEMENT
Master Number 0114100
This agreement "Agreement" is effective May 28, 2002 among DSI Technology Escrow
Services, Inc. ("DSI"), ▇▇▇▇▇▇ Electronics Corporation ("Depositor") and any
additional party signing the Acceptance Form attached to this Agreement
("Preferred Beneficiary"), who collectively may be referred to in this Agreement
as the parties ("Parties").
A. Depositor and Preferred Beneficiary have entered or will enter into a
license agreement, development agreement, and/or other agreement regarding
certain proprietary technology of Depositor (referred to in this Agreement as
"the License Agreement").
B. Depositor desires to avoid disclosure of its proprietary technology except
under certain limited circumstances.
C. The availability of the proprietary technology of Depositor is critical to
Preferred Beneficiary in the conduct of its business and, therefore, Preferred
Beneficiary needs access to the proprietary technology under certain limited
circumstances.
D. Depositor and Preferred Beneficiary desire to establish an escrow with DSI
to provide for the retention, administration and controlled access of certain
proprietary technology materials of Depositor.
E. The parties desire this Agreement to be supplementary to the License
Agreement pursuant to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ [Bankruptcy] Code, Section 365(n).
ARTICLE 1 -- DEPOSITS
1.1 Obligation to Make Deposit. Upon the signing of this Agreement by the
--------------------------
parties, including the signing of the Acceptance Form, and Exhibit D naming the
Deposit Account, Depositor shall deliver to DSI the proprietary technology and
other materials ("Deposit Materials") required to be deposited by the License
Agreement or, if the License Agreement does not identify the materials to be
deposited with DSI, then such materials will be identified on Exhibit A. If
Exhibit A is applicable, it is to be prepared and signed by Depositor and
Preferred Beneficiary. DSI shall have no obligation with respect to the
preparation, signing or delivery of Exhibit A.
1.2 Identification of Tangible Media. Prior to the delivery of the Deposit
--------------------------------
Materials to DSI, Depositor shall conspicuously label for identification each
document, magnetic tape, disk, or other tangible media upon which the Deposit
Materials are written or stored. Additionally, Depositor shall complete Exhibit
B to this Agreement by listing each such tangible media by the item label
description, the type of media and the quantity. Exhibit B shall be signed by
Depositor and delivered to DSI with the Deposit Materials. Unless and until
Depositor makes the initial deposit with ▇▇▇,
▇▇
▇▇▇ shall have no obligation with respect to this Agreement, except the
obligation to notify the parties regarding the status of the account as required
in Section 2.2 below.
1.3. Escrow Account Name Identification. Subject to this Article 1, and at the
-----------------------------------
time Depositor makes the initial deposit with DSI in accordance with Section 1.2
above, Depositor shall complete and sign Exhibit D naming the initial account
upon which the Deposit Materials are written or stored. Any new deposits
referencing new account names made subsequent to the signing of this Agreement,
intended by the Depositor to be held in a separate account and maintained
separately from the initial account, but made a part of this Agreement, shall be
provided for by the Depositor on Exhibit E, and Exhibit E shall be signed by the
Depositor and DSI.
1.4 Deposit Inspection. When DSI receives the Deposit Materials and Exhibit B,
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DSI will conduct a deposit inspection by visually matching the labeling of the
tangible media containing the Deposit Materials to the item descriptions and
quantity listed on Exhibit B. In addition to the deposit inspection, Preferred
Beneficiary may elect to cause a verification of the Deposit Materials in
accordance with Section 1.7 below.
1.5 Acceptance of Deposit. At completion of the deposit inspection, if DSI
----------------------
determines that the labeling of the tangible media matches the item descriptions
and quantity on Exhibit B, DSI will date and sign Exhibit B and mail a copy
thereof to Depositor and Preferred Beneficiary. If DSI determines that the
labeling does not match the item descriptions or quantity on Exhibit B, DSI will
(a) note the discrepancies in writing on Exhibit B; (b) date and sign Exhibit B
with the exceptions noted; and (c) mail a copy of Exhibit B to Depositor and
Preferred Beneficiary. DSI's acceptance of the deposit occurs upon the signing
of Exhibit B by DSI. Delivery of the signed Exhibit B to Preferred Beneficiary
is Preferred Beneficiary's notice that the Deposit Materials have been received
and accepted by DSI.
1.6 Depositor's Representations. Depositor represents as follows:
---------------------------
a. Depositor lawfully possesses all of the Deposit Materials
deposited with DSI;
b. With respect to all of the Deposit Materials, Depositor has the
right and authority to grant to DSI and Preferred Beneficiary the
rights as provided in this Agreement;
c. The Deposit Materials are not subject to any lien or other
encumbrance that would prohibit, limit, or alter the rights and
obligations of DSI under this Agreement;
d. The Deposit Materials consist of the proprietary technology and
other materials identified either in the License Agreement or
Exhibit A, as the case may be; and
e. The Deposit Materials are readable and useable in their current
form or, if any portion of the Deposit Materials is encrypted,
the decryption tools and decryption keys have also been
deposited.
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1.7 Verification. Preferred Beneficiary shall have the right, at Preferred
------------
Beneficiary's expense, to cause a verification of any Deposit
Materials. Preferred Beneficiary shall notify Depositor and DSI of Preferred
Beneficiary's request for verification. Depositor shall have the right to be
present at the verification. A verification determines, in different levels of
detail, the accuracy, completeness, sufficiency and quality of the Deposit
Materials. If a verification is elected after the Deposit Materials have been
delivered to DSI, then only DSI, or at DSI's election an independent person or
company selected and supervised by DSI, may perform the verification.
1.8 Deposit Updates. Unless otherwise provided by the License Agreement,
---------------
Depositor shall update the Deposit Materials within 60 days of each release of a
new version of the product which is subject to the License Agreement. Such
updates will be added to the existing deposit. All deposit updates shall be
listed on a new Exhibit B and the new Exhibit B shall be signed by Depositor.
Each Exhibit B will be held and maintained separately within the escrow account.
An independent record will be created which will document the activity for each
Exhibit B. The processing of all deposit updates shall be in accordance with
Sections 1.2 through 1.6 above. All references in this Agreement to the Deposit
Materials shall include the initial Deposit Materials and any updates.
1.9 Removal of Deposit Materials. The Deposit Materials may be removed and/or
----------------------------
exchanged only on written instructions signed by Depositor and Preferred
Beneficiary, or as otherwise provided in this Agreement. Notwithstanding the
forgoing, Depositor may remove the Deposit Materials without written
instructions signed by the Preferred Beneficiary in the event of the termination
of the License Agreement by reason of a material breach on the part of the
Preferred Beneficiary, upon DSI's receipt of written instructions referencing
this section and specifying the License Agreement has terminated due to a
material breach on the part of the Preferred Beneficiary.
ARTICLE 2 -- CONFIDENTIALITY AND RECORD KEEPING
2.1 Confidentiality. DSI shall maintain the Deposit Materials in a secure,
---------------
environmentally safe, locked facility which is accessible only to authorized
representatives of DSI. DSI shall have the obligation to reasonably protect the
confidentiality of the Deposit Materials. Except as provided in this Agreement,
DSI shall not disclose, transfer, make available, or use the Deposit Materials.
DSI shall not disclose the content of this Agreement to any third party. If DSI
receives a subpoena or any other order from a court or other judicial tribunal
pertaining to the disclosure or release of the Deposit Materials, DSI will
immediately notify the parties to this Agreement unless prohibited by law. It
shall be the responsibility of Depositor and/or Preferred Beneficiary to
challenge any such order; however, that DSI does not waive its rights to present
its position with respect to any such order. DSI will not be required to disobey
any order from a court or other judicial tribunal. (See Section 7.5 below for
notices of requested orders.)
2.2 Status Reports. DSI will issue to Depositor and Preferred Beneficiary a
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report profiling the account history at least semi-annually. DSI may provide
copies of the account history pertaining to this Agreement upon the request of
any party to this Agreement.
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2.3 Audit Rights. During the term of this Agreement, Depositor and Preferred
------------
Beneficiary shall each have the right to inspect the written records of DSI
pertaining to this Agreement. Any inspection shall be held during normal
business hours and following reasonable prior notice.
ARTICLE 3 -- GRANT OF RIGHTS TO DSI
3.1 Title to Media. Depositor hereby transfers to DSI the title to the media
--------------
upon which the proprietary technology and materials are written or stored.
However, this transfer does not include the ownership of the proprietary
technology and materials contained on the media such as any copyright, trade
secret, patent or other intellectual property rights.
3.2 Right to Make Copies. DSI shall have the right to make copies of the
--------------------
Deposit materials as reasonably necessary to perform this Agreement. DSI shall
copy all copyright, nondisclosure, and other proprietary notices and titles
contained on the Deposit Materials onto any copies made by DSI. With all Deposit
Materials submitted to DSI, Depositor shall provide any and all instructions as
may be necessary to duplicate the Deposit Materials including but not limited to
the hardware and/or software needed.
3.3 Right to Transfer Upon Release. Depositor hereby grants to DSI the right to
------------------------------
transfer Deposit Materials to Preferred Beneficiary upon any release of the
Deposit Materials for use by Preferred Beneficiary in accordance with Section
4.5. Except upon such a release or as otherwise provided in this Agreement, DSI
shall not transfer the Deposit Materials.
ARTICLE 4 -- RELEASE OF DEPOSIT
4.1 Release Conditions. As used in this Agreement, "Release Condition" shall
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mean any of the conditions for release set forth in the License Agreement.
4.2 Filing For Release. If Preferred Beneficiary believes in good faith that a
------------------
Release Condition has occurred, Preferred Beneficiary may provide to DSI written
notice of the occurrence of the Release Condition and a request for the release
of the Deposit Materials. Upon receipt of such notice, DSI shall provide a copy
of the notice to Depositor by commercial express mail.
4.3 Contrary Instructions. From the date DSI mails the notice requesting
---------------------
release of the Deposit Materials, Depositor shall have ten business days to
deliver to DSI contrary instructions ("Contrary Instructions"). Contrary
Instructions shall mean the written representation by Depositor that a Release
Condition has not occurred or has been cured. Upon receipt of Contrary
Instructions, DSI shall send a copy to Preferred Beneficiary by commercial
express mail. Additionally, DSI shall notify both Depositor and Preferred
Beneficiary that there is a dispute to be resolved pursuant to the Section 7.3.
Subject to Section 5.2 of this Agreement, DSI will continue to store the Deposit
Materials without release pending (a) joint instructions from Depositor and
Preferred Beneficiary; (b) dispute resolution pursuant to Section 7.3; or (c)
order of a court.
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4.4 Release of Deposit. If DSI does not receive Contrary Instructions from the
------------------
Depositor, DSI is authorized to release the Deposit Materials to the Preferred
Beneficiary or, if more than one beneficiary is registered to the deposit, to
release a copy of the Deposit Materials to the Preferred Beneficiary. However,
DSI is entitled to receive any fees due DSI before making the release. Any
copying expense in excess of $300 will be chargeable to Preferred Beneficiary.
Upon any such release, the escrow arrangement will terminate as it relates to
the Depositor and Preferred Beneficiary involved in the release.
4.5 Right to Use Following Release. Unless otherwise provided in the License
------------------------------
Agreement, upon release of the Deposit Materials in accordance with this Article
4, Preferred Beneficiary shall have the right to use the Deposit Materials for
the sole purpose of continuing the benefits afforded to Preferred Beneficiary by
the License Agreement. Preferred Beneficiary shall be obligated to maintain the
confidentiality of the released Deposit Materials.
ARTICLE 5 -- TERM AND TERMINATION
5.1 Term of Agreement. The initial term of this Agreement is for a period of
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one year. Thereafter, this Agreement shall automatically renew from year-to-year
unless (a) Depositor and Preferred Beneficiary jointly instruct DSI in writing
that the Agreement is terminated; (b) Preferred Beneficiary instructs DSI in
writing that the Agreement is terminated as it relates to Preferred Beneficiary;
or (c) DSI instructs Depositor and Preferred Beneficiary in writing that the
Agreement is terminated for nonpayment in accordance with Section 5.2 or by
resignation in accordance with Section 5.3. If the Acceptance Form has been
signed at a date later than this Agreement, the initial term of the Acceptance
Form will be for one year with subsequent terms to be adjusted to match the
anniversary date of this Agreement. If the deposit materials are subject to
another escrow agreement with DSI, DSI reserves the right, after the initial one
year term, to adjust the anniversary date of this Agreement to match the then
prevailing anniversary date of such other escrow arrangements.
5.2 Termination for Nonpayment. In the event of the nonpayment of fees owed to
--------------------------
DSI, DSI shall provide written notice of delinquency to the parties to this
Agreement affected by such delinquency. Any such party shall have the right to
make the payment to DSI to cure the default. If the past due payment is not
received in full by DSI within one month of the date of such notice, then at any
time thereafter DSI shall have the right to terminate this Agreement to the
extent it relates to the delinquent party by sending written notice of
termination to such affected parties. DSI shall have no obligation to take any
action under this Agreement so long as any payment due to DSI remains unpaid.
5.3 Termination by Resignation. DSI reserves the right to terminate this
--------------------------
Agreement, for any reason, by providing Depositor and Preferred Beneficiary with
60-days' written notice of its intent to terminate this Agreement. Within the
60-day period, the Depositor and Preferred Beneficiary may provide DSI with
joint written instructions authorizing DSI to forward the Deposit Materials to
another escrow company and/or agent or other designated recipient. If DSI does
not receive said
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joint written instructions within 60 days of the date of DSI's written
termination notice, then DSI shall destroy, return or otherwise deliver the
Deposit Materials in accordance with Section 5.4.
5.4 Disposition of Deposit Materials Upon Termination. Subject to the foregoing
-------------------------------------------------
termination provisions, and upon termination of this Agreement, DSI shall
destroy, return, or otherwise deliver the Deposit Materials in accordance with
Depositor's instructions. If there are no instructions, DSI may, at its sole
discretion, destroy the Deposit Materials or return them to Depositor. DSI shall
have no obligation to destroy or return the Deposit Materials if the Deposit
Materials are subject to another escrow agreement with DSI or have been released
to the Preferred Beneficiary in accordance with Section 4.4.
5.5 Survival of Terms Following Termination. Upon termination of this
------------------------------------------
Agreement, the following provisions of this Agreement shall survive:
a. Depositor's Representations (Section 1.5);
b. The obligations of confidentiality with respect to the Deposit
Materials;
c. The rights granted in the sections entitled Right to Transfer
Upon Release (Section 3.3) and Right to Use Following Release
(Section 4.5), if a release of the Deposit Materials has
occurred prior to termination;
d. The obligation to pay DSI any fees and expenses due;
e. The provisions of Article 7; and
f. Any provisions in this Agreement which specifically state they
survive the termination of this Agreement.
ARTICLE 6 -- DSI'S FEES
6.1 Fee Schedule. DSI is entitled to be paid its standard fees and expenses
------------
applicable to the services provided. DSI shall notify the party responsible for
payment of DSI's fees at least 60 days prior to any increase in fees. For any
service not listed on DSI's standard fee schedule, DSI will provide a quote
prior to rendering the service, if requested.
6.2 Payment Terms. DSI shall not be required to perform any service unless the
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payment for such service and any outstanding balances owed to DSI are paid in
full. Fees are due upon receipt of a signed contract or receipt of the Deposit
Materials whichever is earliest. If invoiced fees are not paid, DSI may
terminate this Agreement in accordance with Section 5.2.
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ARTICLE 7 -- LIABILITY AND DISPUTES
7.1 Right to Rely on Instructions. DSI may act in reliance upon any
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instruction, instrument, or signature reasonably believed by DSI to be genuine.
DSI may assume that any employee of a party to this Agreement who gives any
written notice, request, or instruction has the authority to do so. DSI will not
be required to inquire into the truth or evaluate the merit of any statement or
representation contained in any notice or document. DSI shall not be responsible
for failure to act as a result of causes beyond the reasonable control of DSI.
7.2 Indemnification. Depositor and Preferred Beneficiary each agree to
---------------
indemnify, defend and hold harmless DSI from any and all claims, actions,
damages, arbitration fees and expenses, costs, attorney's fees and other
liabilities ("Liabilities") incurred by DSI relating in any way to this escrow
arrangement unless such Liabilities were caused solely by the negligence or
willful misconduct of DSI.
7.3 Dispute Resolution. Any dispute relating to or arising from this Agreement
------------------
shall be resolved by arbitration under the Commercial Rules of the American
Arbitration Association. Three arbitrators shall be selected. The Depositor and
Preferred Beneficiary shall each select one arbitrator and the two chosen
arbitrators shall select the third arbitrator, or failing agreement on the
selection of the third arbitrator, the American Arbitration Association shall
select the third arbitrator. However, if DSI is a party to the arbitration, DSI
shall select the third arbitrator. Unless otherwise agreed by Depositor and
Preferred Beneficiary, arbitration will take place in New York, New York, USA.
Any court having jurisdiction over the matter may enter judgment on the award of
the arbitrator(s). Service of a petition to confirm the arbitration award may be
made by First Class mail or by commercial express mail, to the attorney for the
party or, if unrepresented, to the party at the last known business address.
7.4 Controlling Law. This Agreement is to be governed and construed in
----------------
accordance with the laws of the State of New York, without regard to its
conflict of law provisions.
7.5 Notice of Requested Order. If any party intends to obtain an order from the
-------------------------
arbitrator or any court of competent jurisdiction which may direct DSI to take,
or refrain from taking any action, that party shall:
a. Give DSI at least two business days' prior notice of the hearing;
b. Include in any such order that, as a precondition to DSI's
obligation, DSI be paid in full for any past due fees and be
paid for the reasonable value of the services to be rendered
pursuant to such order; and
c. Ensure that DSI not be required to deliver the original (as
opposed to a copy) of the Deposit Materials if DSI may need to
retain the original in its possession to fulfill any of its
other escrow duties.
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ARTICLE 8 -- GENERAL PROVISIONS
8.1 Entire Agreement. This Agreement, which includes the Acceptance Form and
----------------
Exhibits A, B, C, D and E described herein, embodies the entire understanding
among all of the parties with respect to its subject matter and supersedes all
previous communications, representations or understandings, either oral or
written. DSI is not a party to the License Agreement between Depositor and
Preferred Beneficiary and has no knowledge of any of the terms or provisions of
any such License Agreement. DSI's only obligations to Depositor or Preferred
Beneficiary are as set forth in this Agreement. No amendment or modification of
this Agreement shall be valid or binding unless signed by all the parties
hereto, except that Exhibit A need not be signed by DSI, Exhibit B need not be
signed by Preferred Beneficiary, Exhibit C need not be signed by any party,
Exhibit D need not be signed by Preferred Beneficiary or DSI and the Acceptance
Form need only be signed by the parties identified therein.
8.2 Notices. All notices, invoices, payments, deposits and other documents and
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communications shall be given to the parties at the addresses specified in the
attached Exhibit C and Acceptance Form. It shall be the responsibility of the
parties to notify each other as provided in this Section in the event of a
change of address. The parties shall have the right to rely on the last known
address of the other parties. Unless otherwise provided in this Agreement, all
documents and communications may be delivered by First Class mail.
8.3 Severability. In the event any provision of this Agreement is found to be
------------
invalid, voidable or unenforceable, the parties agree that unless it materially
affects the entire intent and purpose of this Agreement, such invalidity,
voidability or unenforceability shall affect neither the validity of this
Agreement nor the remaining provisions herein, and the provision in question
shall be deemed to be replaced with a valid and enforceable provision most
closely reflecting the intent and purpose of the original provision.
8.4 Successors. This Agreement shall be binding upon and shall inure to the
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benefit of the successors and assigns of the parties. However, DSI shall have no
obligation in performing this Agreement to recognize any successor or assign of
Depositor or Preferred Beneficiary unless DSI receives clear, authoritative and
conclusive written evidence of the change of parties.
8.5 Regulations. Depositor and Preferred Beneficiary are responsible for and
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warrant compliance with all applicable laws, rules and regulations, including
but not limited to customs laws, import, export, and re-export laws and
government regulations of any country from or to which the Deposit Materials may
be delivered in accordance with the provisions of this Agreement.
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▇▇▇▇▇▇ Electronics Corporation DSI Technology Escrow Services, Inc.
------------------------------
Depositor
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ Limbery
--------------------------- -----------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ Limbery
Title: President and Chief Financial Title: Sr. Contract Administrator
Officer
Date: May 7, 2002 Date: May 28, 2002
21
EXHIBIT A
MATERIALS TO BE DEPOSITED
Account Number 011410
Depositor represents to Preferred Beneficiary that Deposit Materials delivered
to DSI shall consist of the following:
----------------------------------- -------------------------------------
Depositor Preferred Beneficiary
By: By:
--------------------------------- ----------------------------------
Name: Name:
------------------------------- --------------------------------
Title: Title:
------------------------------ -------------------------------
Date: Date:
------------------------------- --------------------------------
22
EXHIBIT B
DESCRIPTION OF DEPOSIT MATERIALS
Depositor Company Name
---------------------------------------------------------
Account Number
-----------------------------------------------------------------
Product Name Version
----------------------------------------- -----------------
(PRODUCT NAME WILL APPEAR AS EXHIBIT B NAME ON ACCOUNT HISTORY REPORT)
DEPOSIT MATERIAL DESCRIPTION:
QUANTITY MEDIA TYPE & SIZE LABEL DESCRIPTION OF EACH SEPARATE ITEM
Disk 3.5" or
------ ----
DAT tape mm
------ ----
CD-ROM
------
Data cartridge tape
------ ----
TK 70 or tape
------ ----
Magnetic tape
------ ----
Documentation
------
Other
------ ----------------------
PRODUCT DESCRIPTION:
Environment
--------------------------------------------------------------------
DEPOSIT MATERIAL INFORMATION:
Is the media or are any of the files encrypted? Yes / No If yes, please include
any passwords and the decryption tools.
Encryption tool name Version
----------------------------------- ----------------
Hardware required
--------------------------------------------------------------
Software required
--------------------------------------------------------------
Other required information
------------------------------------------------------
I certify for DEPOSITOR that the above DSI has inspected and accepted the
described Deposit Materials have been above materials (ANY EXCEPTIONS ARE
transmitted to DSI: NOTED ABOVE):
Signature Signature
------------------------ ----------------------------
Print Name Print Name
----------------------- ---------------------------
Date Date Accepted
----------------------------- ------------------------
Exhibit B#
----------------------------
Send materials to: DSI, ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
23
EXHIBIT C
DESIGNATED CONTACT
Master Number 0114100
Notices and communications
should be addressed to: Invoices should be addressed to:
Company Name: ▇▇▇▇▇▇ Electronics Corporation ▇▇▇▇▇▇ Electronics Corporation
Address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Designated Contact: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Contact: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ________________________________
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ ________________________________
E-Mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ P.O.#, if required: ____________
Verification Contact: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Requests to change the designated contact should be given in writing by the
designated contact or an authorized employee.
Contracts, Deposit Materials and notices Invoice inquiries and fee remittances
to DSI should be addressed to: to DSI should be addressed to:
DSI Technology Escrow Services, Inc. DSI Technology Escrow Services, Inc.
Contract Administration PO Box 45156
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
----------------
Date: May 7, 2002
24
EXHIBIT D
NAME OF INITIAL ACCOUNT
Account Number ▇▇▇▇▇▇▇
("Depositor") has entered into a Master Preferred
-------------------------------
Escrow Agreement with DSI Technology Escrow Services, Inc. ("DSI"). Pursuant to
that Agreement, Depositor may deposit certain Deposit Materials with DSI.
The initial account will be referenced by the following name:
.
-------------------------------------------------
-----------------------------------
Depositor
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Date:
-------------------------------
25
EXHIBIT E
ADDITIONAL ESCROW ACCOUNT
TO MASTER PREFERRED ESCROW AGREEMENT
Master Number 0114100
New Account Number ______________________
("Depositor") has entered into a Master
-------------------------------
Preferred Escrow Agreement with DSI Technology Escrow Services, Inc. ("DSI").
Pursuant to that Agreement, Depositor may deposit certain Deposit Materials with
DSI.
Depositor desires that new Deposit Materials be held in a separate account and
be maintained separately from the initial account. By execution of this Exhibit
E, DSI will establish a separate account for the new Deposit Materials. The new
account will be referenced by the following name:
.
-------------------------------------
Depositor hereby agrees that all terms and conditions of the existing Master
Preferred Escrow Agreement previously entered into by Depositor and DSI will
govern this account. The termination or expiration of any other account of
Depositor will not affect this account.
DSI Technology Escrow Services, Inc.
------------------------------------
Depositor
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
Date: Date:
------------------------------- -----------------------------------
26
PREFERRED BENEFICIARY
ACCEPTANCE FORM
Account Number ▇▇▇▇▇▇▇
Depositor, Preferred Beneficiary and DSI Technology Escrow Services, Inc.
("DSI"), hereby acknowledge that is the
----------------------------------
Preferred Beneficiary referred to in the Master Preferred Escrow Agreement
effective , 20 with DSI as the escrow agent and
---------- -----
as the Depositor. Preferred Beneficiary hereby
---------------------------
agrees to be bound by all provisions of such Agreement.
Depositor hereby enrolls Preferred Beneficiary to the following account(s):
Account Name Account Number
------------ --------------
---------------------------------- --------------------------------------
---------------------------------- --------------------------------------
---------------------------------- --------------------------------------
Notices and communications to Preferred
Beneficiary should be addressed to: Invoices should be addressed to:
Company Name:
---------------------------------------- -------------------------------------------
Address:
--------------------------------------------- -------------------------------------------
----------------------------------------------------- -------------------------------------------
Designated Contact: Contact:
---------------------------------- ----------------------------------
Telephone:
------------------------------------------- -------------------------------------------
Facsimile: P.O.#, if required:
------------------------------------------- -----------------------
E-Mail:
---------------------------------------------
----------------------------------------------------- -------------------------------------------
Preferred Beneficiary Depositor
By: By:
------------------------------------------------- ----------------------------------------
Name: Name
------------------------------------------------ ---------------------------------------
Title: Title
----------------------------------------------- --------------------------------------
Date: Date:
------------------------------------------------ --------------------------------------
DSI Technology Escrow Services, Inc.
------------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------