License Agreement [Amendment No. 2] - AvantGo Inc. and McKessonHBOC Inc.
AMENDMENT TO LICENSE AGREEMENT
THIS AMENDMENT TO LICENSE AGREEMENT ("Amendment") is entered into March 7,
2000 (the "Execution Date"), by and between AvantGo Inc., located at 1700 S.
Amphlett Blvd., Suite 300, San Mateo, CA 94402 ("AvantGo"), and McKessonHBOC,
Inc, (formerly "McKesson Corporation") located at One Post Street, San
Francisco, CA 94104 ("Licensee").
Background
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AvantGo and Licensee wish to modify the License Agreement entered into and
effective as of October 1, 1998, as subsequently amended (the "License
Agreement"), in order to effect a change in the terms of the License Agreement
so that Licensee can broadly deploy the Software (as defined in the License
Agreement).
Agreement
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1. Term. The term of this Amendment shall be through March 7, 2003
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("Amendment Term"). This Amendment shall be effective beginning February 1,
2000.
2. For purposes of this Amendment, the license grant shall be as follows:
2.1 AvantGo hereby grants to Licensee a nontransferable, worldwide,
perpet-ual and irrevocable license, without rights to sublicense or resell,
to (a) install the number of copies of AvantGo Server Software set forth in
Appendix A of this Amendment solely on computers located at Designated
Sites, (b) install AvantGo Client Software on the number of handheld
devices set forth in Appendix A of this Amendment to be used by Licensee
employees, contractors, affiliates, agents, external customers and business
partners (with respect to use by external customers and business partners
(collectively "Permitted Users") solely with the Identified Configuration.
Licensee shall use AvantGo Server Software to deliver content created by or
for, or used by or for, Licensee or Permitted Users. AvantGo Server and
Client Software used by external customers and business partners shall be
used solely for (i) receipt of McKesson proprietary content or (ii) to
access content and services in the "Health Subject Areas" as such term is
defined in the Channel Management Agreement, AvantGo reserves all rights in
the Software which are not expressly granted in this Amendment. It is
understood that if Licensee uses the AvantGo Software outside the scope of
the license grant, this may result in irreparable and continuing damage for
which recovery of money damages would be inadequate, therefore, AvantGo
shall be entitled to obtain timely injunctive relief without proof of
damages in addition to any and all remedies at law.
2.2 This license shall have the following limited exclusivity, but
shall otherwise be nonexclusive: AvantGo will not grant any license in
AvantGo Server Software that would reasonably be expected to enable any
third party to use such software to compete with the "Health Category" or
with any other activity which could reasonably be expected to generate
"Shared Revenue" in a "Health Subject Area," as such terms are defined fit
the Channel Management Agreement between the parties of even date herewith
("Channel Management Agreement"). IT is understood that if AvantGo grants
any such license, this may result in irreparable and continuing damage for
which recovery of money damages would be inadequate, therefore, Licensee
shall be entitles to obtain
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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timely injunctive relief without proof of damages in addition to any and
all remedies at law."
2.3 In the event the Channel Management Agreement is terminated prior
to the expiration of the Amendment Term, the occurrence of such event shall
trigger an automatic modification to this Amendment in which section 2.2 is
deleted and the license grant in section 2.1 is deemed nonexclusive.
3. License Duration. Licensee shall have a perpetual license for the
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number of copies of AvantGo Server Software and AvantGo Client Software deployed
by Licensee during the Amendment Term. At the end of the Amendment Term,
Licensee shall deliver to AvantGo documentation sufficient to evidence the total
number of AvantGo Server Software and AvantGo Client Software applications
deployed on the last day of this Amendment, including the serial numbers of the
AvantGo Server applications and a list of end users utilizing the AvantGo
Client in accordance with this Amendment. The AvantGo Client software may
thereafter be transferred to handheld devices of other end users so long as the
number of copies deployed does not exceed the number deployed on the last day of
this Amendment Licensee is not required to return the AvantGo Server Software or
AvantGo Client Software at any time.
4. AvantGo agrees that any future product capabilities that it may
deliver supporting Blue tooth, XML, and JavaScript will be made available to
Licensee under the terms of the Software Maintenance, Support and Services
Agreement (Exhibit D) applicable to an upgrade or update.
5. During the entire Amendment Term, Licensee will retain a full-time
employee or consultant dedicated to act as a liaison and on-site support
resource to assist in the adoption and deployment of AvantGo Software.
6. Fee. The License Fee and Maintenance & Support Fee shall be as set
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forth in Appendix A here to Except with respect to payment of prior license fee
obligations in the amount of approximately $[*****], the fees in this Amendment
are in lieu of any License Fee or Maintenance & Support Fee that would otherwise
have been due during the Amendment Term with respect to licenses granted under
the License Agreement.
7. Consulting. Licensee will receive discounts on time-and-materials
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based professional services projects during the Amendment Term as follows:
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Project based Commitment for Professional Services Project Discount
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Between $[******] and $[******]: [******]%
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Between $[******] and $[******]: [******]%
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Greater than $[******]: [******]%
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The parties agree that except as amended in the manner specified above, all
remaining provisions of the License Agreement shall continue in full force and
effect.
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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McKesson HBOC, Inc. AvantGo, Inc.
/s/ William J. Dawson /s/ Tom Hunter
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Signature Signature
William J. Dawson Tom Hunter
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Name (Print or Type) Name (Print or Type)
Senior Vice President CFO
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Title Business Development Title
March 7, 2000 March 7, 2000
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Date Date
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Appendix A to Amendment
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1. Designated Site Any facility owned or operated
exclusively by or for Licensee or
its wholly owned subsidiaries.
"Designated Site" includes a shared
facility operated in part by or for
Licensee or its wholly owned
subsidiaries, provided that the
AvantGo Server Software is operated
exclusively by or for Licensee or
its wholly owned subsidiaries.
2. Identified Configuration Servers:
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Linux
Solaris
Windows NT
including successor products or
versions of the foregoing, and
any other AvantGo Server
Software which AvantGo makes
available to enterprise
customers during the Amendment
Term
Handhelds:
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PalmOS-based devices
Symbol SPT series
WindowsCE-based pocket PCs
and any other AvantGo Client
Software which AvantGo makes
available to the public or
other enterprise customers
during the Amendment Term
3. Number of Copies of AvantGo * during Amendment Term
Server Software
4. Number of Permitted Users/Handheld * during Amendment Term
Devices for deploying AvantGo
Client Software
5. License Fee $******* Payable within * of the
Execution Date $******* Payable *
from the Execution Date $*******
Payable * from the Execution Date
6. Maintenance & Support Fees $******* Payable within * of the
Execution Date $******* Payable *
of the Execution Date.
[*] =CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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