Cross-License Agreement - Adobe Systems Inc. and Infodata Systems Inc.
CROSS-LICENSE AGREEMENT
This Agreement is made by and between ADOBE SYSTEMS INCORPORATED, a
Delaware corporation having a principal place of business at 345 Park Avenue,
San Jose, California 95110-2704 ("Adobe"), and INFODATA SYSTEMS INC., a Virginia
corporation having a principal place of business at 12150 Monument Drive, Suite
400, Fairfax, Virginia 22033 ("Infodata"), effective as of December 3, 1997 (the
"Effective Date").
RECITALS
A. Adobe owns certain computer programs which are useful in producing,
viewing and transmitting documents in heterogeneous computing environments,
known collectively as the Adobe Acrobat(R) software products ("Acrobat").
B. Infodata owns all right, title and interest to the Win 32 Re:mark(R)
2.04 software and related Documentation (the "Re:mark Software"). Infodata is
currently performing development work to modify the Re:mark Software in order to
provide annotation functionality for Adobe's Acrobat product and to incorporate
the modified software (the "Modified Re:mark Software") into Acrobat for this
purpose. Infodata is performing the development work pursuant to a separate
Consulting Agreement between Adobe and Infodata (the "Consulting Agreement"), a
copy of which is attached as EXHIBIT A.
C. Adobe wishes to acquire, and Infodata wishes to grant to Adobe, an
exclusive license to that portion of the Modified Re:mark Software known as the
"Residual Re:mark Software," and a non-exclusive license to the remainder of the
Modified Re:mark Software, which software is further described in EXHIBIT B
("Description of Modified Re:mark Software"). Adobe also wishes to acquire, and
Infodata wishes to grant to Adobe, an option to purchase in the future all
right, title and interest in the Residual Re:mark Source Code.
D. Adobe owns all right, title and interest in the Adobe Acrobat Media
Editor and Browser software (the "Aesop Software").
E. Infodata wishes to acquire, and Adobe wishes to grant to Infodata, a
non-exclusive license to the Aesop Software.
F. The purposes of this Agreement are for Infodata to license the
Modified Re:mark Software to Adobe; to provide Adobe with an option to purchase
the Residual Re:mark Software portion of such software; to set forth certain
marketing arrangements between the parties with respect to the license of the
Modified Re:mark Software; and for Adobe to license the Aesop Software to
Infodata.
The parties therefore agree as follows:
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AGREEMENT
1. DEFINITIONS
1.1 "AESOP SOFTWARE" shall mean the Adobe Acrobat Media Editor and
Browser software program and Documentation delivered by Adobe to Infodata
pursuant the license set forth in Section 3.6 hereof.
1.2 "COMMENCEMENT DATE" shall mean the date upon which delivery and
acceptance by Adobe of the Release Candidate of the Modified Re:mark Software
has been completed in accordance with the Consulting Agreement.
1.3 "COMMON SHARED LIBRARY" shall mean that portion of the Re:mark
Software consisting of a common shared library pertaining to functionalities
other than annotation, in both Object Code and Source Code form. Approximately
fifteen percent (15%) of the Re:mark Software consists of the Common Shared
Library.
1.4 "DOCUMENTATION" shall mean all technical documentation for a
software product in licensor's possession, including flowcharts, program
procedures and descriptions (including descriptions of the Source Code and build
procedures for the Object Code), procedures for maintenance and modification,
testing data and similar written material relating to the design, structure and
implementation of the software product.
1.5 "END USER" shall mean a third party who purchases a product or
component for its ordinary business purposes, but not for redistribution or
resale.
1.6 "EXCLUSIVE PERIOD" shall mean that period of time beginning on the
Commencement Date and ending on the third anniversary of the Commencement Date.
1.7 "GRAMMAR CALLS" shall mean that portion of the Re:mark Software
that consists of a collection of VFC grammar calls for annotation and
publishing, in both Object Code and Source Code form.
1.8 "INITIAL INFODATA AESOP PRODUCT" shall have the meaning set forth
in PARAGRAPH 3.6.4.
1.9 "INTELLECTUAL PROPERTY RIGHTS" shall mean all intellectual property
rights worldwide arising under statutory law, common law or by contract and
whether or not perfected, including without limitation, all (i) patents, patent
applications, and patent rights; (ii) rights associated with works of authorship
including copyrights, copyright applications, copyright registrations, mask work
rights, mask work applications, mask work registrations; (iii) rights relating
to the production of trade secrets and confidential information; (iv) any rights
analogous to these set forth in this PARAGRAPH 1.9 and any other proprietary
rights relating to intellectual property; and (v) divisions, continuations,
renewals, reissues and extension of the foregoing (as and to the extent
applicable) now existing, hereafter filed, used or acquired.
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1.10 "LICENSE FEE" shall have the meaning set forth in PARAGRAPH 7.1.
1.11 "LICENSED SOFTWARE" shall mean software to which a party obtains
license rights pursuant to this Agreement; that is, with respect to the licenses
granted by Infodata to Adobe herein, the Modified Re:mark Software; and with
respect to the licenses granted by Adobe to Infodata herein, the Aesop Software.
1.12 "MODIFIED RE:MARK SOFTWARE" shall mean the Re:mark Software as
modified by Infodata to meet Adobe's specifications for incorporation into
Adobe's Acrobat software products, in accordance with the Consulting Agreement.
The Modified Re:mark Software licensed hereunder consists of the following
components of the Re:mark Software, as modified pursuant to the Consulting
Agreement: (i) the Common Shared Library, (ii) the Grammar Calls, and (iii) the
Residual Re:mark Software.
1.13 "NET REVENUE" shall mean the gross amount of all cash, in kind or
other consideration received by Infodata at any time in consideration of the
licensing or other distribution of the Aesop Software or VFC, as the case may
be, excluding any amounts received by Infodata for sales and use taxes,
shipping, insurance, duties, credits, and returns.
1.14 "OBJECT CODE" shall mean the machine executable object code form
of a software program.
1.15 "OPTION EXERCISE PERIOD" shall have the meaning set in forth in
PARAGRAPH 5.
1.16 "PDF" shall mean Adobe Portable Document Format.
1.17 "RELEASE CANDIDATE" shall mean that version of the Modified
Re:mark Software for which the following are true, as further described in the
Consulting Agreement: (i) the alpha version and the beta version of the product
have already been delivered and accepted; (ii) the alpha version and the beta
version have been tested and substantially all of the bugs have been fixed so
that the software performs at a level consistent with recently released products
from Adobe; (iii) the product has been successfully tested for viruses; and (iv)
all media, including floppy disks, if applicable, are completed.
1.18 "RE:MARK SOFTWARE" shall mean the Win 32 Re:mark 2.04 software and
related Documentation.
1.19 "RESIDUAL RE:MARK SOFTWARE" shall mean all portions of the
Modified Re:mark Software other than the Common Shared Library and the Grammar
Calls, in both Object Code and Source Code form.
1.20 "SOURCE CODE" shall mean the human readable, source code version
of a software program and the build environment required to compile the Source
Code of the software program into the Object Code version thereof.
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1.21 "VFC" shall mean the commercially available product developed and
marketed by Infodata under the name VFC (which stands for "Virtual File
Cabinet") that allows End Users to create, store, organize and publish
information using Web technology. VFC consists of the VFC Document Web Server,
the foundation layer of VFC; Bridging Technology, enablers for scalable server
communications; and client-based Extensions, which add functionality to the VFC
Document Server.
1.22 "WARRANTY PERIOD" shall have the meaning set in forth in PARAGRAPH
9.5.
2. SOFTWARE DEVELOPMENT, DELIVERY AND ACCEPTANCE PROCESS.
2.1 SOFTWARE DEVELOPMENT AND ACCEPTANCE PROCESS. The software
development to be performed by Infodata for Adobe, including the specifications
and acceptance process therefor, shall be performed in accordance with the
Consulting Agreement.
2.2 DELIVERY. Following acceptance by Adobe of the Release Candidate in
accordance with the Consulting Agreement, Infodata will deliver the Modified
Re:mark Software and the associated Documentation to Adobe. The Modified Re:mark
Software will be delivered telephonically, provided that Adobe bears the costs
of such telephonic transmission. Infodata agrees not to deliver to Adobe any
Modified Re:mark Software deliverable under this Agreement in any tangible
medium unless otherwise expressly directed by Adobe in advance. Coincident with
the telephonic transmission of such deliverable items in each instance, Infodata
shall execute and deliver to Adobe a certificate within fifteen (15) days of
transmission and in a form acceptable to Adobe, which certificate shall contain
at a minimum: the date of transmission, the times such transmission was
commenced and concluded, the name(s) of Infodata personnel who made the
transmission, the signature(s) of such personnel and a general description of
the nature of the item(s) transmitted sufficient to distinguish the transmission
from other transmissions.
3. LICENSES.
3.1 MODIFIED RE:MARK SOFTWARE LICENSES. Infodata hereby grants to Adobe
the following licenses as of the Commencement Date:
3.1.1 EXCLUSIVE LICENSE TO RESIDUAL RE:MARK SOFTWARE. An
unrestricted, perpetual, irrevocable, fully-paid up, worldwide, royalty-free and
exclusive license under all of Infodata's Intellectual Property Rights in the
Residual Re:mark Software to use, reproduce, modify and create derivative works
from, distribute, publicly perform, publicly display, make, have made, sell,
offer for sale, and import the Residual Re:mark Software by all means now known
or later developed. The foregoing license shall include the right to sublicense
any or all of such rights though one or more tiers of sublicensees. For purposes
of this PARAGRAPH 3.1.1, "exclusive" shall mean that Infodata shall have no
rights to the Residual Re:mark Software except to use it as necessary for
Infodata to enable interoperability between VFC and such version(s) of Acrobat
that incorporate the Residual Re:mark Software, provided that such use does not
(i) compete with Adobe products or (ii) create or enable features or
functionality that serve as a substitute for PDF; provided further that
Infodata's rights to the Residual Re:mark Software as required for Infodata to
enable interoperability between VFC and such version(s) of
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Acrobat that incorporate the Residual Re:mark Software shall be a limited right
to use internal and external interfaces and protocols as the parties determine
(collectively, the "Protocols") that manage and internetwork the Modified
Residual Re:mark Software elements incorporated in such version(s) of Acrobat to
interoperate with VFC. Notwithstanding the foregoing, Adobe may, but is not
obligated to, grant to Infodata additional licenses to use such Residual Re:mark
Software during the Exclusive Period on mutually agreeable terms and conditions.
The foregoing license shall be exclusive until the end of the Exclusive Period,
at which time the license shall become non-exclusive if Adobe has elected not to
exercise its option to purchase the Residual Re:mark Software pursuant to
PARAGRAPH 5 ("Option to Purchase Residual Re:mark Software"). Adobe acknowledges
and understands that Infodata is in the business of software development and
that it shall continue to develop software products, including annotation
applications, subject to Adobe's rights with regard to the Residual Re:mark
Software.
3.1.2 NON-EXCLUSIVE LICENSE TO THE COMMON SHARED LIBRARY AND
GRAMMAR CALLS. An unrestricted, perpetual, irrevocable, fully-paid up,
worldwide, royalty-free and non-exclusive license under all of Infodata's
Intellectual Property Rights in the Common Shared Library and Grammar Calls to
use, reproduce, modify and create derivative works from, distribute, publicly
perform, publicly display, make, have made, sell, offer for sale and import the
Common Shared Library and Grammar Calls by all means now known or later
developed. Notwithstanding the foregoing, Adobe shall have no right to modify
the Grammar Calls, although Infodata acknowledges and agrees that Adobe retains
the right to develop new grammar calls or extensions to the Grammar Calls. The
foregoing license shall include the right to sublicense any or all of such
rights through one or more tiers of sublicensees.
3.2 END USER LICENSES. Adobe may grant End Users the non-exclusive
right to use the Modified Re:mark Software pursuant to the terms of its
then-current end user license agreement, which end user license agreement shall
be no less protective than the terms as are set forth in EXHIBIT C ("Adobe End
User License Agreement"). Adobe's obligations under this PARAGRAPH 3.2 ("End
User Licenses") shall terminate upon Adobe's exercise of the Option to Purchase
Residual Re:mark Software.
3.3 FURTHER ASSISTANCE. Infodata agrees to perform all acts deemed
reasonably necessary or desirable by Adobe to permit and assist Adobe, at
Adobe's expense, to obtain and enforce the full benefits throughout the world of
Adobe's license in the Modified Re:mark Software set forth herein, including but
not limited to the execution of documents and assistance or cooperation in the
registration and enforcement of the applicable Modified Re:mark Software. By way
of example and in no way as a limitation on the foregoing, Infodata acknowledges
that it will register the Re:mark Software with the United States Copyright
Office and will provide Adobe with copies of the foregoing registration.
Infodata further agrees to assist Adobe in registering its exclusive license to
the Residual Re:mark Software. In the event that Adobe is unable for any reason
whatsoever to secure a signature on behalf of Infodata to any document it
believes is reasonably required in order to apply for or execute any patent,
copyright or other application with respect to the exercise of its rights set
forth herein, Infodata hereby irrevocably designates and appoints Adobe and its
duly authorized officers and agents as their agents and their attorneys-in-fact
to act for and in their benefit and instead of them, to execute and file any
such application and to do all other lawfully permitted acts to further the
prosecution and
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issuance of patents, copyrights or other rights thereon with the same legal
force and effect as if executed by Infodata.
3.4 PATENTS. In the event that Infodata is issued any patents based on
the Modified Re:mark Software, Infodata shall not assert such patent rights
against Adobe for its use of the Modified Re:mark Software pursuant to the
licenses granted in PARAGRAPH 3.1 ("Modified Re:mark Software Licenses").
3.5 TRADEMARK LICENSE. Effective upon the Commencement Date, Infodata
shall grant to Adobe a perpetual, irrevocable, worldwide, royalty-free and fully
paid license to use the "Re:mark" trademark in connection with Adobe's marketing
and distribution of the Modified Re:mark Software. In addition, Infodata hereby
grants to Adobe a worldwide, royalty-free and fully paid license to use the
"Infodata" and "VFC" trademarks and such other trademark licenses as are
necessary for Adobe to fulfill its marketing obligations under Section 6 of this
Agreement.
3.6 AESOP SOFTWARE LICENSE. Adobe hereby grants to Infodata the
following license as of the Effective Date:
3.6.1 AESOP SOFTWARE SOURCE CODE LICENSE. A perpetual,
irrevocable and non-exclusive license to use, reproduce, modify and create
derivative works of the Source Code of the Aesop Software. Infodata agrees that
it will not (a) use the Source Code at any site other than the offices of
Infodata, which offices shall be located in the United States; (b) disclose the
Source Code of the Aesop Software, or any portion thereof, to third parties; (c)
reproduce the Source Code of the Aesop Software, or any portion thereof, in any
form or medium, except for archival storage; or (d) use the Source Code of the
Aesop Software for any purpose not specifically authorized in this Agreement.
Infodata agrees to keep the Source Code of the Aesop Software on a secure
computer(s) with password access and that it will disclose the Source Code of
the Aesop Software only to those Infodata employees and independent contractors
with a need to know, and all such employees and independent contractors will be
required to sign a nondisclosure agreement no less restrictive than Infodata's
standard agreement. Infodata agrees to allow Adobe to inspect a list of all such
employees and independent contractors at Adobe's request if Adobe has reason to
believe that the Source Code of the Aesop Software may have been improperly
disclosed.
3.6.2 AESOP SOFTWARE OBJECT CODE LICENSE. An unrestricted,
worldwide, perpetual, irrevocable and non-exclusive license to use, reproduce,
distribute, sublicense, publicly perform and display, make, and have made the
Object Code of the Aesop Software and any modified versions thereof created by
Infodata pursuant to PARAGRAPH 3.6.1. Infodata may grant End Users the
non-exclusive right to use the Aesop Software, in Object Code form only,
pursuant to the terms of its then-current end user license agreement, which end
user license agreement shall be no less protective than the terms as are set
forth in EXHIBIT C ("Adobe End User License Agreement").
3.6.3 PATENTS. In the event that Adobe is issued any patents
based on the Aesop Software, Adobe shall not assert such patent rights against
Infodata for its use of the Aesop
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Software pursuant to licenses granted in PARAGRAPH 3.6.1 and PARAGRAPH 3.6.2
(the "Aesop Software Licenses").
3.6.4 LIMITATIONS ON ADOBE. Notwithstanding the non-exclusive
nature of Aesop Software Licenses, Adobe agrees that (i) it will not develop and
market a stand-alone product based substantially on the Aesop Software that
competes with Infodata's first commercially released stand-alone product based
on the Aesop Software (the "Initial Infodata Aesop Product") (ii) nor will Adobe
sublicense the Aesop Software to a third party with rights to develop and market
a stand-alone product based substantially on the Aesop Software that competes
with the Initial Infodata Product.
3.6.5 OWNERSHIP OF INFODATA MODIFICATIONS TO AESOP. Infodata
will own any modifications to the Aesop Software that Infodata develops, subject
to Adobe's ownership rights in the Aesop Software, which Adobe expressly retains
and reserves, and the Aesop Software, as modified, will continue to be subject
to the terms and conditions of this Agreement.
4. PROPRIETARY RIGHTS AND LEGENDS.
4.1 PROPRIETARY NOTICES.
4.1.1 BY ADOBE. Except for the rights expressly enumerated
herein or in the Consulting Agreement which is EXHIBIT A hereto, as between
Adobe and Infodata, Infodata will retain ownership of all Intellectual Property
Rights in the Re:mark Software, unless and until Adobe exercises its the Option
to Purchase Residual Re:mark Software. Adobe agrees that as a condition of its
rights hereunder, each copy Of the Modified Re:mark Software shall contain the
proprietary notices of Infodata in a manner consistent with Adobe's past
practice with respect to third-party proprietary notices placed in prior
versions of the Acrobat product; provided, however, that this obligation with
respect to the Residual Re:mark Software shall expire in the event that Adobe
exercises its Option to Purchase Residual Re:mark Software pursuant to the terms
of Paragraph 5 hereof. In addition, Adobe shall have such other proprietary
notices as are required pursuant to Section 6.3 hereof.
4.1.2 BY INFODATA. Except for the rights expressly enumerated
herein, as between Adobe and Infodata, Adobe will retain ownership of all
Intellectual Property Rights in the Aesop Software. Infodata agrees that as a
condition of its rights hereunder, each copy of the Aesop Software shall contain
the same proprietary notices which appear on or in such Aesop Software provided
by Adobe to Infodata and as otherwise reasonably required by Adobe. More
specifically, Infodata agrees that a valid Adobe copyright notice for the Aesop
Software will appear on the media, or, in the case of Object Code executing on a
workstation or other host-based system, displayed on the single user screen of
the workstation or other host-based system when the Object Code is first invoked
during an End User session, in the following format or such other format as
Adobe specifies by written notice to Infodata:
"Contains Adobe(R) Acrobat(R) Media Editor and Browser licensed from
Adobe Systems Incorporated. Copyright(C) 19 Adobe Systems
Incorporated. All rights reserved."
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The copyright data shall be the first publication date of the Initial Infodata
Aesop Product. Presence of a copyright notice does not constitute an
acknowledgment of publication.
4.2 U.S. GOVERNMENT END USERS. When distributing Licensed Software to a
U.S. Government End User, each party shall identify the Licensed Software and
related Documentation as a "commercial item," as that term is defined at
48 C.F.R. 2.101 (OCT 1995), and more specifically shall identify the Licensed
Software and related Documentation as "commercial computer software" and
"commercial computer software documentation," as such terms are used in
48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and
48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), each party will provide the
Licensed Software and related Documentation to U.S. Government End Users (a)
only as a Commercial Item and (b) with only those rights as are granted to all
other End Users pursuant to the terms and conditions herein.
4.3 FOREIGN GOVERNMENT AGREEMENTS. Each party will take all reasonable
steps in making proposals and agreements with foreign governments other than the
United States which involve the Licensed Software and related Documentation to
ensure that the other party's proprietary rights in such Licensed Software and
related Documentation receive the maximum protection available from such foreign
government for commercial computer software and related documentation developed
at private expense.
5. OPTION TO PURCHASE RESIDUAL RE:MARK SOFTWARE. In the event that the licenses
described in PARAGRAPH 3.1 ("Modified Re:mark Software Licenses") hereof
commence according to the terms provided herein, Adobe will have the right to
purchase all Intellectual Property Rights in the Residual Re:mark Software and
the "Re:mark" trademark for Fifty Thousand Dollars ($50,000) at any time between
the second and third-year anniversaries of the Effective Date of this Agreement
(the "Option Exercise Period"), subject only to the grant of a limited license
to Infodata to use the Residual Re:mark Software as is necessary for Infodata to
enable interoperability between VFC and such version(s) of Acrobat that
incorporate the Modified Re:mark Software, provided that such use of the
Residual Re:mark Software by Infodata does not (i) compete with Adobe products
or (ii) create or enable features or functionality that serve as a substitute
for PDF; provided further that Infodata's rights to the Residual Re:mark
Software as required for Infodata to enable interoperability between VFC and
such version(s) of Acrobat that incorporate the Residual Re:mark Software shall
be a limited right to use internal and external interfaces and protocols as the
parties determine (collectively, the "Protocols") that manage and internetwork
the Modified Residual Re:mark Software elements incorporated in such version(s)
of Acrobat to interoperate with VFC. Upon the commencement of the Option
Exercise Period, Infodata shall give written notice to Adobe of the Option to
Purchase Residual Re:mark Software. Adobe acknowledges and understands that
Infodata is in the business of software development and that it shall continue
to develop software products, including annotation applications, subject to
Adobe's fights with regard to the Residual Re:mark Software.
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6. VFC
6.1 VFC PRODUCT MARKETING. Infodata hereby appoints Adobe as a
non-exclusive marketing representative for the Infodata VFC product with rights
to directly market VFC, and Adobe hereby accepts such appointment. In connection
with such appointment, and subject to the terms of this Agreement, Infodata
grants Adobe the non-exclusive right to (1) resell VFC and its Documentation,
(ii) use, display, and perform VFC and its Documentation for demonstration
purposes, and (iii) use the "Infodata" and "VFC" trademarks.
6.2 VFC BUTTON. In connection with the Modified Re:mark Software
Licenses, Acrobat Exchange 4.x versions will include a button (the "VFC Button")
which when clicked will produce a VFC splash screen, a link to Infodata's Web
site, and other mutually-agreed upon functionality.
6.3 PROPRIETARY NOTICES AND INFORMATION; PLACEMENT OF VFC BUTTON. In
connection with the Modified Re:mark Software Licenses, Acrobat Exchange 4.x
versions will include descriptive information and trademark notices regarding
VFC in the "Help" and "About Plug-ins" pull-down options, provided that the size
and placement of such notices shall be consistent with Adobe's past practice
with respect to plug-in vendors described in prior versions of the Acrobat
product. Adobe shall be entitled, in its sole discretion, to determine the size
and placement of the VFC Button, the splash screen, and any and all proprietary
notices; provided, however, that if Acrobat Exchange 4.x versions contain an
annotation menu or annotation toolbar, Adobe will place the VFC Button within
such menu, toolbar, or annotation options. Adobe shall not be obligated to
include the VFC Button in Acrobat Reader unless Acrobat Reader contains an
annotation menu, annotation toolbar, or annotation options. Adobe reserves the
right not to include an annotation menu, annotation toolbar, or annotation
options in either Acrobat Exchange 4.x or Acrobat Reader.
7. PAYMENT, TAXES AND EXPENSES.
7.1 BY ADOBE. In consideration for the licenses to the Modified Re:mark
Software set forth in PARAGRAPH 3.1 ("Modified Re:mark Software Licenses")
herein, Adobe shall pay One Million U.S. Dollars ($1,000,000) (the "License
Fee") to Infodata, according to the following schedule:
7.1.1 Upon execution of the Letter of Intent, dated October
24, 1997, between the parties with respect to this Agreement, Adobe paid
Infodata, and Infodata acknowledges payment of, One Hundred Thousand Dollars
($100,000) as a refundable prepayment of the License Fee.
7.1.2 Upon execution of this Agreement, Adobe shall pay
Infodata Four Hundred Thousand Dollars ($400,000) as a refundable prepayment of
the License Fee.
7.1.3 Upon delivery and acceptance of the beta version of the
Modified Re:mark Software pursuant to the terms of the Consulting Agreement,
Adobe shall pay Infodata One Hundred Thousand Dollars ($100,000) as a refundable
prepayment of the License Fee.
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7.1.4 On the Commencement Date, Adobe shall pay the remaining
Four Hundred Thousand Dollars ($400,000) of the License Fee.
7.2 REFUND OF PREPAYMENT. Because Adobe's license to the Modified
Re:mark Software will not be effective, if at all, until delivery and acceptance
of the Release Candidate of the Modified Re:mark Software, Infodata shall refund
the payments described in PARAGRAPH 7.1 already made by Adobe in the event that
either of the following occur: (i) Infodata fails to deliver the Release
Candidate of the Modified Re:mark Software in accordance with the Consulting
Agreement or (ii) Adobe does not accept the Release Candidate of the Modified
Re:mark Software according to the acceptance procedures set forth in the
Consulting Agreement.
7.3 BY INFODATA.
7.3.1 AESOP ROYALTIES. In consideration for the Aesop Software
License, Infodata will pay to Adobe a royalty at the rate of five percent (5%)
of the Net Revenue received from distribution of the Aesop Software as a
stand-alone product, as incorporated into another Infodata product, or as
bundled with third party products. The royalties shall be paid only for the
first two (2) years following the release of the Initial Infodata Aesop Product,
with an annual cap of Two Hundred Thousand Dollars ($200,000) on royalty
payments each year, after which the license shall be deemed to be royalty-free
and fully paid-up.
7.3.2 VFC BUTTON COMMISSIONS. In consideration for the actual
use of a VFC Button and other marketing obligations undertaken by Adobe pursuant
to PARAGRAPH 6 ("VFC Button"), Infodata agrees to pay Adobe commissions on sales
of VFC in accordance with the following schedule:
VFC Button Commissions
Year After Commercial Estimated % of Units Sold Commission as Percentage
Release of Acrobat 4.0 Through Acrobat 4.0 of
---------------------- (the "Basis") Net Revenue of the Basis
-----------------------------------------------------------------------------------------
1 60% of VFC product 4%
sales
-----------------------------------------------------------------------------------------
2 50% of VFC product 4%
sales
-----------------------------------------------------------------------------------------
3 33% of VFC product 3%
sales
=========================================================================================
7.3.3 TERMINATION OF COMMISSION OBLIGATIONS. Infodata's
obligation to pay commissions pursuant to PARAGRAPH 7.3.2 ("VFC Button
Commissions") shall terminate
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upon payment by Infodata to Adobe of two million dollars ($2,000,000) in VFC
Button Commission payments in the aggregate.
7.3.4 VFC MARKETING COMMISSIONS. In consideration for Adobe's
efforts in its capacity as a marketing representative, Infodata will pay Adobe a
commission at the rate of twenty percent (20%) of Infodata's Net Revenue from
such Adobe direct sales of VFC.
7.4 PAYMENTS AND REPORTS. Within thirty (30) days after the end of each
calendar quarter, Infodata shall, during the applicable royalty periods, provide
Adobe with a report indicating: (1) the Net Revenue from distribution of the
Aesop Software as a stand-alone product, as incorporated into another Infodata
product, or as bundled with third party products; and (2) the Net Revenue from
sales from the sales of VFC. Infodata shall provide Adobe with payment of the
royalties due under PARAGRAPHS 7.3.1 through 7.3.4 based on the above
calculations along with such report.
7.5 AUDIT RIGHTS. Adobe shall have the right to conduct an inspection
and audit of all the accounting and sales books and records of Infodata
pertaining to the transactions contemplated by Agreement during regular business
hours at Infodata's offices and in such a manner as not to interfere with
Infodata's normal business activities. In no event shall audits be made
hereunder more frequently than every six (6) months. If such inspections
disclose underreporting, Infodata shall promptly pay Adobe such amount, together
with interest thereon at the rate of one and one-half percent (1 1/2%) per month
or the highest interest rate allowed by law, whichever is lower, from the date
on which such amount became due.
7.6 TAXES. Each party agrees to be responsible for payment of its own
sales, use, excise, import or export, value added or other tax or duty, as well
as the collection or withholding thereof, including penalties and interest,
imposed upon or arising out of this Agreement with respect to its own licensed
software and the transactions contemplated herein. Both Adobe and Infodata will
accept telephonic delivery of the Licensed Software.
7.7 TRANSACTION EXPENSES. Adobe and Infodata will each be responsible
for payment of their own liabilities, costs, obligations, or expenses, including
but not limited to attorneys' and accountants' fees, incurred in connection with
this Agreement and the transactions contemplated herein.
8. MAINTENANCE AND SUPPORT.
8.1 BY INFODATA. Infodata will provide all available written
documentation (including product plans, product specifications and bug reports)
related to the Re:mark Software and the Modified Re:mark Software. At Adobe's
request, Infodata shall provide maintenance and support for the Modified Re:mark
Software. The parties shall agree to the cost for such services prior to their
commencement. Initial rates are specified in EXHIBIT A ("Consulting Agreement").
Infodata's support obligation shall be limited initially to Acrobat 4.0. The
parties may agree to establish support arrangements for subsequent versions of
Acrobat upon such terms as the parties may then agree.
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<PAGE> 12
8.2 BY ADOBE. Adobe will provide all available written documentation
(including product plans, product specifications, and bug reports) related to
the Aesop Software. Infodata acknowledges that the Adobe engineering team that
developed the Aesop Software is no longer in existence, but Adobe offers to make
commercially reasonable efforts to provide for consulting from such engineering
resources as are available.
9. REPRESENTATIONS AND WARRANTIES.
Infodata represents and warrants as follows:
9.1 OWNERSHIP AND AUTHORITY. Infodata is the sole and exclusive owner
of all right, title and interest in the Re:mark Software and all Intellectual
Property Rights associated therewith. The Re:mark Software and all Intellectual
Property Rights associated with it are free and clear of all encumbrances,
including, without limitation, security interests, liens, charges or other
restrictions. Infodata represents and warrants that it has full power and
authority to make and enter into this Agreement and to grant to Adobe the rights
and licenses granted hereunder.
9.2 NON-INFRINGEMENT. The Re:mark Software, the Modified Re:mark
Software, when delivered, and VFC do not infringe or violate any third party's
copyright trademark, trade secret or U.S. Patent.
9.3 NO OTHER LICENSES. Infodata has granted no licenses to the Re:mark
Software or the Modified Re:mark Software or otherwise granted or agreed to
grant any rights to any third party which conflict with the rights herein
granted by Infodata to Adobe.
9.4 CURRENT VERSION. The Modified Re:mark Software will contain all
revisions, updates and changes of and to the Re:mark Software as of the date on
which it is delivered to Adobe pursuant hereto.
9.5 PERFORMANCE WARRANTY. For a period of one hundred and eighty (180)
days following the Commencement Date (the "Warranty Period"), (i) the Source
Code of the Modified Re:mark Software will compile into the Object Code of the
Modified Re:mark Software to create the executable version of the Modified
Re:mark Software, and (ii) the Modified Re:mark Software will substantially
conform to the Specifications and the Documentation therefor and will not
contain any defect which would in any material and adverse respect affect
Adobe's use of the Modified Re:mark Software or the functioning of the Modified
Re:mark Software. If, during the applicable Warranty Period, Adobe reports to
Infodata a failure of such Modified Re:mark Software to conform to the foregoing
warranty, Infodata, at its expense, shall use reasonable commercial efforts to
modify or replace the Modified Re:mark Software in a timely manner to correct
such failure.
9.6 PROTECTION. Except as to independent contractors and consultants
who have each executed a nondisclosure agreement no less restrictive than
Infodata's standard agreement, the Source Code of the Re:mark Software has not
been disclosed to any third party, and Infodata has used and will continue to
use safeguards to protect the Re:mark Software Source Code and the Modified
Re:mark Software Source Code against disclosure to third parties, at least as
protective
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as it uses to safeguard its most valuable proprietary information and in no
event less than reasonable care.
Adobe represents and warrants as follows:
9.7 OWNERSHIP AND AUTHORITY. Adobe is the sole and exclusive owner of
all right, title and interest in the Aesop Software and all Intellectual
Property Rights associated therewith. The Aesop Software and all Intellectual
Property Rights associated with it are free and clear of all encumbrances,
including, without limitation, security interests, liens, charges or other
restrictions. Adobe represents and warrants that it has full power and authority
to make and enter into this Agreement and to grant to Infodata the rights and
licenses granted hereunder.
9.8 NON-INFRINGEMENT. The Aesop Software does not infringe or violate
any third party's copyright, trademark, trade secret, or U.S. Patent.
9.9 REMEDY FOR BREACH OF REPRESENTATIONS AND WARRANTIES. Each party
(the "Indemnifying Party") hereby indemnifies and holds the other party (the
"Indemnitee") harmless with respect to all damages, costs, expenses (including
reasonable attorneys' fees), and other liabilities or obligations of any nature
incurred by the Indemnitee arising, out of or relating to a breach by the
Indemnifying Party of one or more the Indemnifying Party's representations and
warranties herein. With respect to any third-party claim that is asserted
against an Indemnitee for which the Indemnitee is entitled to indemnification,
the Indemnitee will notify the Indemnifying Party of the claim as promptly as
possible; however, the Indemnitee's failure to provide such notice will not
relieve the Indemnifying Party of its obligation to indemnify the Indemnitee
except and only to the extent that the Indemnifying Party suffers damages as a
result of such failure. In the case of a breach of PARAGRAPH 9.2
("Non-Infringement") or PARAGRAPH 9.8 ("Non-Infringement"), the Indemnifying
Party will, at its option and expense, either (a) secure for the Indemnitee the
right to continue using and, as applicable, reproducing and distributing the
infringing Licensed Software or (b) replace or modify the infringing Licensed
Software so that the substituted software, documentation, and other materials
are noninfringing and have functionality no less than the infringing Licensed
Software. The Indemnifying Party will have the right to conduct the defense of
the claim and any settlement negotiations related thereto. The Indemnitee will,
at the Indemnifying Party's reasonable request and expense (including but not
limited to reasonable attorneys' fees), assist the Indemnifying Party in the
defense of the claim, and the Indemnitee will have the right to participate in
such defense at its expense. Notwithstanding the foregoing, the Indemnifying
Party will have no obligation to indemnify Indemnitee for third-party
infringement claims to the extent that such claims are based upon (i)
modifications to the Licensed Software made by the Indemnitee or by a third
party (other than the Indemnifying Party) on behalf of the Indemnitee or (ii)
the combination of the Licensed Software, in Object Code or Source Code form,
with third-party equipment or software not authorized by the Indemnifying Party
or otherwise approved by the Indemnifying Party in its specifications or
documentation. This indemnification provision shall apply to damages resulting
from breaches which are discovered within three years after the execution of
this Agreement.
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<PAGE> 14
10. DISCLAIMER
EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS AGREEMENT, NEITHER
PARTY MAKES ANY ADDITIONAL WARRANTIES WITH RESPECT TO ITS SOFTWARE AND
DOCUMENTATION, WHETHER EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE
OF TRADE, STATUTORY OR OTHERWISE. IN PARTICULAR, ANY AND ALL WARRANTIES OF
FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR NON-INFRINGEMENT ARE
EXPRESSLY EXCLUDED.
11. LIMITATION OF LIABILITY
EXCEPT FOR A BREACH OF PARAGRAPH 9.2 ("NON-INFRINGEMENT") OR PARAGRAPH
9.8 ("NON-INFRINGEMENT"), IN NO EVENT SHALL ANY PARTY BE LIABLE FOR
CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, INCLUDING BUT NOT
LIMITED TO ANY DAMAGES RESULTING FROM LOSS OF USE OR PROFITS ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT, WHETHER IN AN ACTION BASED ON CONTRACT, TORT
(INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EVEN IF THE PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR ANY DAMAGES HOWSOEVER ARISING AND WHETHER DIRECT,
INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL INCLUDING, BUT NOT LIMITED TO,
ANY DAMAGES RESULTING FROM LOSS OF USE OR PROFITS, IN EXCESS OF TWO MILLION
DOLLARS (US $2,000,000).
12. TERM AND TERMINATION.
12.1 TERM. This Agreement will be effective from the Effective Date and
shall remain in effect unless terminated pursuant to PARAGRAPH 12.2
("Termination for Material Breach").
12.2 TERMINATION FOR MATERIAL BREACH. Adobe or Infodata may terminate
this Agreement by written notice to the other party upon a failure of the other
party to observe, keep or perform any of the material covenants, terms or
conditions herein if such default continues for sixty (60) days after written
notice by the other party.
12.3 CONSEQUENCES. In the event of termination of this Agreement, the
licenses granted hereunder are irrevocable and shall continue in perpetuity, it
being agreed that the parties' sole remedy, if any, for any breach of this
Agreement shall be an action for damages. The following paragraphs shall also
survive any termination of this Agreement: 1 ("Definitions"), 9 (Representations
and Warranties"), 10 ("Disclaimer"), 11 ("Limitation of Liability"), 12.3
(Consequences") and 13 ("General"). Notwithstanding the foregoing, the Aesop
Software License, including without limitation all rights and licenses to the
Aesop Software, shall terminate in the event of any termination caused by
Infodata's failure to observe, keep or perform its obligations to restrict
access to the Source Code of the Aesop Software and otherwise protect its
confidentiality as set forth in PARAGRAPH 3.6.1 ("Aesop Software Source Code
License").
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<PAGE> 15
13. GENERAL.
13.1 NO AGENCY. Each party will perform its obligations as an
independent contractor and will be solely responsible for its own financial
obligations. This Agreement will not create a joint venture, partnership, or
principal and agent relationship between the parties. Neither party will have
the authority or will represent that it has the authority to assume or create
any obligation, express or implied, on behalf of the other, except as expressly
provided herein.
13.2 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of California, without giving effect to
principles of conflict of law, and the parties agree that the law of no other
jurisdiction shall govern or be used to construe or interpret this Agreement.
Any suit hereunder will be brought solely in the federal or state courts in the
Northern District of California and the parties hereby submit to the personal
jurisdiction hereof.
13.3 MODIFICATION. This Agreement may be modified or amended only by a
written agreement executed by an authorized representative of Adobe and
Infodata.
13.4 INVALID PROVISIONS. In the event that any provision of this
Agreement shall be 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 as a whole, and, in such event,
such provision shall be changed and interpreted so as to best accomplish the
objectives of such unenforceable or invalid provision within the limits of
applicable law or applicable court decisions.
13.5 NO ASSIGNMENT. No party shall have the right to assign or
otherwise transfer its rights and obligations under this Agreement without the
prior written consent of the other parties which consent shall not unreasonably
be withheld. Any assignment prohibited hereunder shall be null and void and
shall constitute a material breach of this Agreement. All rights and obligations
under this Agreement shall inure to the benefit of and be binding upon the
successors and permitted assigns of the parties.
13.6 EXPORT. The parties agree not to export, directly or indirectly,
any U.S. source technical data acquired from the other party or any products
utilizing such data to countries outside the United States, if such export is in
violation of the United States export laws or regulations.
13.7 BANKRUPTCY. All rights and licenses granted under or pursuant to
this Agreement by Infodata to Adobe or by Adobe to Infodata, as the case may be,
are, and shall otherwise be deemed to be, for purposes of Paragraph 365(n) of
Title 11, U.S. Code (the "Bankruptcy Code"), licenses and rights to
"intellectual property" as defined under Paragraph 101(60) of the Bankruptcy
Code. The parties agree that Adobe and Infodata, each as licensee of such rights
under this Agreement, shall retain and may fully exercise all of its rights and
elections under the Bankruptcy Code.
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<PAGE> 16
13.8 NOTICE. All notices or reports permitted or required under this
Agreement shall be in writing and shall be delivered by personal delivery,
telegram, telex, telecopier, facsimile transmission, or by certified or
registered mail, return receipt requested, and shall be deemed given upon
personal delivery, five (5) days after deposit in the mail, or upon
acknowledgment of receipt of electronic transmission. Notices shall be sent to
the signatory of this Agreement at the address set forth below or such other
address as either party may specify in writing. If the notice is to Adobe, a
copy shall also be sent to the attention of its General Counsel. If the notice
is to Infodata, a copy shall also be sent to the attention of Curtis Carlson at
Infodata.
To Adobe: Adobe Systems Incorporated
345 Park Avenue
San Jose, California 95110-2704
Facsimile: (408) 537-4060
Attention: George Cacioppo
To Infodata: Infodata Systems Inc.
12150 Monument Drive, Suite 400
Fairfax, Virginia 22033
Facsimile: (703) 934-7154
13.9 PUBLIC ANNOUNCEMENTS. Neither Adobe nor Infodata will make any
public announcement concerning this Agreement or the matters set forth herein
(other than to employees, shareholders or other parties with a need to know or
as required by SEC disclosure rules) without the consent of the other party;
provided, however, that in the event that Infodata is required by law to make a
public announcement concerning the matters set forth in this Agreement, Infodata
shall make the draft of such announcement available to Adobe prior to its
release with sufficient time for Adobe to comment on the draft and Infodata
shall make reasonable efforts to incorporate such comments in the draft. Adobe
and Infodata agree to issue a mutually acceptable press release regarding this
Agreement at such time as Adobe shall determine.
13.10 NONDISCLOSURE; RETURN OF MATERIALS. Except where greater
restrictions on disclosure are provided for herein, any and all information,
correspondence, financial statements and records and other documents transmitted
or communicated by either party to the other party shall be governed by the
Master Agreement for Mutual Non-Disclosure of Information, dated April 4, 1996,
by and between Adobe and Infodata, a copy of which is attached hereto as EXHIBIT
D ("Master Agreement for Mutual Non-Disclosure of Information").
13.11 PARAGRAPH HEADINGS. Paragraph headings are inserted for
convenience only and will not be considered to define, limit or affect the
interpretation or construction of the Agreement.
13.12 WAIVER. All waivers must be in writing executed by both parties.
The failure of either party to insist upon strict performance of any provision
of this Agreement, or to exercise
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<PAGE> 17
any right provided for herein, shall not be deemed to be a waiver for the future
of such provision or right, and no waiver of any provision or right shall affect
the right of the waiving party to enforce any other provision or right herein.
13.13 ATTORNEYS' FEES. In the event of any dispute between the parties
hereto, the prevailing party shall be entitled to recover its costs, including
expert witness fees and reasonable attorneys' fees therein.
13.14 COUNTERPARTS. This Agreement may be executed in any number of
counterparts,each of which shall be an original, but all of which together shall
constitute one instrument.
13.15 ENTIRE AGREEMENT. This Agreement shall constitute the entire
agreement between the parties hereto and supersedes any and all other prior or
contemporaneous agreements, whether written or oral, between the parties
relating to the same subject matter, except as may be subsequently provided in
writing and agreed upon by the parties.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by their respective representatives, duly authorized.
ADOBE SYSTEMS INCORPORATED INFODATA SYSTEMS, INC.
By: /s/ George A. Cacioppo Jr. By: /s/ Harry Kaplowitz
-------------------------------- -----------------------------
Print Name: George A. Cacioppo Jr. Print Name: Harry Kaplowitz
----------------------- --------------------
Title: Vice President Title: Exec. V.P.
--------------------------- -------------------------
Date: 12/3/97 Date: 12/3/97
--------------------------- --------------------------
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<PAGE> 18
EXHIBIT A
CONSULTING, AGREEMENT
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<PAGE> 19
ADOBE SYSTEMS INCORPORATED
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement"), dated as of October 24, 1997,
is entered into by and between Adobe Systems Incorporated, 345 Park Avenue, San
Jose, CA 95110-2407 ("Adobe"), and Infodata Systems Inc., 12150 Monument Drive,
Suite 400, Fairfax, VA 22033- 4058 ("Consultant").
Adobe desires to retain Consultant as an independent contractor to
perform consulting services for Adobe from time to time and Consultant is
willing to perform such services, on the basis set forth more fully below.
In consideration of the mutual promises contained herein, Adobe and
Consultant agree as follows:
1. SERVICES. Consultant agrees to perform the Services described in any
Project Assignment pursuant hereto in a workmanlike manner according to the
schedule of work set forth therein. A copy of the form of Project Assignment is
attached hereto as EXHIBIT A ("Project Assignment"). Consultant agrees that the
terms of this Agreement will apply to all services performed by Consultant for
Adobe even if a Project Assignment form has not been completed for a special
assignment. Consultant may perform services for any other person or entity so
long as Consultant does not perform similar services for a direct competitor of
Adobe's and so long as Consultant's performance of such services does not
interfere with the performance of Consultant's obligations under this Agreement.
2. PAYMENT FOR SERVICES. Adobe shall pay Consultant the fee set forth
in the Project Assignment for the performance of the Services. Consultant
acknowledges that its sole compensation for the Services shall be this fee, and
that it shall not be entitled to any other compensation for the Services,
including salary, bonuses, benefits or expense or other reimbursements.
3. RELATIONSHIP OF PARTIES. Consultant shall perform the Services under
the general direction of Adobe, but Consultant shall determine, in Consultant's
sole discretion, the manner and means by which the Services are accomplished,
subject to the express condition that Consultant shall at all times comply with
applicable law. Consultant is an independent contractor and Consultant is not an
agent or employee of Adobe, and has no authority whatsoever to bind Adobe by
contract or otherwise. Consultant specifically agrees to comply at all times
with Adobe's Insider Trading Policy Statement attached as EXHIBIT B ("Insider
Trading Policy Statement").
4. FACILITIES, EXPENSES, INSURANCE, RECORDS AND LICENSES. Consultant
shall provide its own facilities and place of business to perform the Services
(except as required to install software), and Consultant shall bear the entire
cost of its facilities without reimbursement by Adobe. Adobe shall have no
obligation to reimburse Consultant for any costs or expenses incurred by
Consultant in the performance of its duties, and all such costs and
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<PAGE> 20
expenses shall be borne by Consultant. Consultant shall be responsible for
providing, for itself and its employees, at its expense and in its own name,
disability, liability, workers' compensation and other business insurance as is
necessary, appropriate and/or required by law. In connection with its
performance of the Services, Consultant agrees that it will be solely
responsible for, and will maintain, any records required by law. Consultant for
agrees that it obtain all required licenses (if any) relating to its performance
of the Services.
5. TAXES AND BENEFITS. No part of Consultant's compensation under this
Agreement will be subject to withholding for any federal, state, social
security, workers' compensation or other required taxes or payments. Adobe shall
report all fees paid to Consultant to the Internal Revenue Service (and other
taxing agencies) on Form 1099 or other appropriate forms. Consultant
acknowledges and agrees that it shall be the obligation of Consultant to report
as income, and pay all taxes upon, all compensation received by Consultant
pursuant to this Agreement and Consultant agrees to indemnify Adobe and hold it
harmless to the extent of any obligation imposed on Adobe to pay any taxes or
insurance, including without limitations, withholding taxes, social security,
unemployment, or disability insurance, including the interest and penalties
thereon, in connection with any payments made to Consultant by Adobe pursuant to
this Agreement. Consultant agrees to pay, indemnify and hold Adobe harmless from
any Tax imposed by any governmental authority with respect to either or both of
any payment to be made by Adobe under this Agreement or any item to be delivered
by Consultant to Adobe under this Agreement. For purposes of this Agreement,
"Tax" shall mean any tax, fee or cost not based on Adobe's net income,
including, but not limited to, sales, use, excise, value added, withholding, or
similar tax or any fees and penalties or interest associated with any of the
foregoing.
6. INVENTIONS. All designs, artwork, software programs, brochures,
manuals, products, procedures, drawings, notes, documents, information,
materials, discoveries and inventions (hereafter "Designs and Inventions") made,
conceived or developed by Consultant alone or with others which result from or
relate to the Services, or which Consultant may receive from Adobe while
performing the Services, shall be the sole property of Adobe. Consultant
specifically agrees to assign all its rights, title and interest to any Designs
and Inventions for which (i) Consultant has signed a Project Assignment in the
form attached as EXHIBIT A ("Project Assignment"), (ii) Adobe provides
Consultant with any Confidential Information (as defined in Paragraph 7
("Confidentiality") below), or (iii) Consultant invoices Adobes. Adobe shall
have the sole right to determine the method of protection for any such Designs
and Inventions, including the right to keep the same as trade secrets, to file
and execute patent applications thereon, to use and disclose the same without
prior patent application, to file registrations for copyright or trademark
thereon in its own name, or to follow any other procedure that Adobe deems
appropriate. Consultant agrees (i) to disclose promptly in writing to Adobe all
such Designs and Inventions, (ii) that Adobe has a power of attorney to apply
for in Consultant's name, and (iii) to execute any applications and/or
assignments reasonably necessary to obtain any patent, copyright, trademark or
other statutory protection for such Designs and Inventions in Adobe's name as
Adobe deems appropriate. These obligations to disclose, assist, and execute
shall survive termination of this Agreement. At Adobe's option, it shall be
entitled to use the name of Consultant in advertising and other materials.
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<PAGE> 21
7. CONFIDENTIALITY. Consultant agrees to hold Adobe's Confidential
Information in strict confidence and not to disclose such Confidential
Information to any third parties. Consultant further agrees to deliver promptly
all Confidential Information in Consultant's possession to Adobe at any time
upon Adobe's request. For purposes hereof, "Confidential Information" shall
include all confidential and proprietary information disclosed by Adobe
including but not limited to software source code, technical and business
information relating to Adobe's current and proposed products, research and
development, production, manufacturing and engineering processes, costs, profit
or margin information, finances, customers, suppliers, marketing, and
production, personnel and future business plans. "Confidential Information" also
includes proprietary or confidential information of any third party who may
disclose such information to Adobe or Consultant in the course of Adobe's
business. The above obligations shall not apply to Confidential Information
which is already known to the Consultant at the time it is disclosed, or which
before being divided either (a) has become publicly known through no wrongful
act of the Consultant; (b) has been rightfully received from a third party
without restriction on disclosure and without breach of this Agreement or other
Agreements entered into by Adobe; (c) has been independently developed by the
Consultant; (d) has been approved for release by written authorization of Adobe;
(e) has been disclosed pursuant to a requirement of a governmental agency or of
law.
8. TERMINATION. This Agreement shall commence on the date first written
below and shall continue until terminated as follows:
(a) Either party may terminate the Agreement in the event of a
breach by the other party of any of its obligations contained herein if such
breach continues uncured for a period of five (5) days after written notice of
such breach to the other party;
(b) Either party may terminate this Agreement upon written
notice to the other party if either party is adjudicated bankrupt, files a
voluntary petition of bankruptcy, makes a general assignment for the benefit of
creditors, is unable to meet its obligations in the normal course of business as
they fall due or if a receiver is appointed on account of insolvency;
(c) Either party may terminate this Agreement for its
convenience upon thirty (30) days written notice to the other if there is no
outstanding Project Assignment. Adobe may terminate this Agreement for its
convenience if Consultant has not commenced work under an outstanding Project
Assignment. In addition, if Consultant has commenced work under a Project
Assignment, Adobe may terminate an outstanding Project Assignment by paying
Consultant a termination fee of ten percent (10%) of the unpaid next installment
of the fee for services described in such Project Assignment.
Upon the termination of this Agreement for any reason, each
party shall be released from all obligations and liabilities to the other
occurring or arising after the date of such termination, except that any
termination shall not relieve Consultant or Adobe of their obligations under
Paragraph 5 ("Taxes and Benefits"), Paragraph 6 ("Inventions"), Paragraph 7
("Confidentiality") and Paragraph 9 ("General"), nor shall any such termination
relieve Consultant or Adobe from any liability arising from any breach of this
Agreement. Upon the termination of this Agreement for any reason, Consultant
shall immediately return to Adobe any
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<PAGE> 22
Adobe property or information (including Confidential Information) that is in
Consultant's possession or control.
9. GENERAL.
9.1 PRE-EXISTING OBLIGATIONS. Consultant represents and
warrants that Consultant is not under any pre-existing obligation or obligations
inconsistent with the provisions of this Agreement.
9.2 ASSIGNMENT. The rights and liabilities of the parties
hereto shall bind and inure to the benefit of their respective successors,
executors and administrators, as the case may be, provided that, Consultant may
only assign this Agreement either in whole or in part with the prior written
consent of Adobe.
9.3 EQUITABLE RELIEF. Because Consultant shall have access to
and become acquainted with the Confidential Information of Adobe, Consultant
agrees that Adobe shall have the right to enforce this Agreement and any of its
provisions by injunction, specific performance or any other equitable relief
without prejudice to any other rights and remedies that Adobe may have for the
breach of this Agreement.
9.4 ATTORNEY'S FEES. If any action at law or in equity is
necessary to enforce the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, costs and expenses in addition to any
other relief to which such prevailing party may be entitled.
9.5 GOVERNING LAW; SEVERABILITY. This Agreement shall be
governed by and construed in accordance with the laws of the State of California
as such laws are applied to Agreements to be entered into and to be performed
entirely within California between California residents. The parties agree that
the United Nations Conventions on Contracts for the International Sale of Goods
is specifically excluded in its entirety from application to this Agreement. If
any provision of this Agreement is for any reason found by a court of competent
jurisdiction to be unenforceable, the remainder of Agreement shall continue in
full force and effect.
9.6 COMPLETE UNDERSTANDING; MODIFICATION. This Agreement
constitutes the full and complete understanding and Agreement of the parties
hereto and supersedes all prior understandings and agreements. Any waiver,
modification or amendment of any provision of this Agreement shall be effective
only if in writing and signed by the parties thereto.
9.7 NOTICES. Any notices required or permitted hereunder shall
be given to the appropriate party at the address specified at the beginning of
this Agreement or at such other address as the party shall specify in writing
and shall be by personal delivery, facsimile transmission or certified or
registered mail. Such notice shall be deemed given upon personal delivery to the
appropriate address or upon receipt of electronic transmission or, if sent by
certified or registered mail, three days after the date of the mailing.
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<PAGE> 23
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the date written below.
ADOBE: CONSULTANT:
ADOBE SYSTEMS INCORPORATED INFODATA SYSTEMS INC.
By /s/ George A. Cacioppo Jr. By: /s/ Richard M. Tworek
------------------------------- ------------------------------
Print Print
Name: George A. Cacioppo Jr. Name: Richard M. Tworek
---------------------------- ---------------------------
Title: VP & GM Internet Division Title: Exec. VP
--------------------------- --------------------------
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<PAGE> 24
EXHIBIT A
PROJECT ASSIGNMENT #1
UNDER CONSULTANT AGREEMENT, DATED: OCTOBER 24, 1997
PROJECT:
Consultant shall render such services as Adobe may from time to time
request in connection with the modifications of the Re:mark Software
(the "Modifications") as set forth in Attachment 1 to this Exhibit A.
The parties shall define the final specifications of the Modifications
no later than November 7, 1997.
SCHEDULE OF WORK:
The work will commence on October 24,1997. Infodata will use
commercially reasonable efforts to deliver the Modifications and the
Alpha Version of the modified Re:mark Software no later than January
31, 1998. "Alpha Version" shall mean that version of the product for
which the following are true: (i) the product is functionally complete
(including installer) and the API's are frozen with no new coding
planned; (ii) the product is assumed to be buggy; (iii) the product is
ready for serious testing by Adobe with its test plans and test
documentation written during, the development phase. After delivery and
acceptance of the Alpha Version of the product, Infodata shall deliver
the beta version and release candidate of the product.
FEES AND REIMBURSEMENT:
Fee: $729,000 (the "Service Fee").
Consultant shall invoice Adobe on the schedule set forth on Attachment
1 to this Exhibit A. The Service Fee shall be non-refundable, except in
the event that Infodata materially breaches this Agreement or the
proposed license agreement based on the terms set forth in the Letter
of Intent, dated October 24, 1997, or in some other fashion
demonstrates willful negligence (e.g., Infodata licenses or otherwise
encumbers the Re:mark Software).
Payment terms: net 15 days from the later of acceptance or receipt of
invoice in Accounts Payable Department.
ASSIGNMENT OF COPYRIGHT:
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<PAGE> 25
For good and valuable consideration, the undersigned sells, assigns and
transfers to Adobe Systems Incorporated, a California corporation, and
its successors and assigns, the copyright in and to the above work(s)
which were created by the undersigned and all right title and interest
of the undersigned, vested and contingent therein and thereto.
Executed as of , 19 .
ADOBE: /s/ George A. Cacioppo Jr. CONSULTANT: /s/ Richard M. Tworek
--------------------------- ----------------------------
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ATTACHMENT 1
TO
EXHIBIT A
OF
CONSULTING AGREEMENT,
DATED OCTOBER 24,1997
Modification Plan
Infodata will enhance Re:mark Software on a service fee basis
to meet Adobe's requirements. Infodata will use Re:mark 2.04 for Windows source
code as the base for development of the enhancements described herein.
DESCRIPTION OF MODIFICATIONS TO THE TECHNOLOGY
1. Plug-in format:
Infodata shall deliver plug-in source code in Adobe standard template format for
an Acrobat plug-in.
2. Macintosh PowerPC Version:
Infodata shall develop a Macintosh PowerPC Version on Mac OS 7.0 and 8.0. Later
versions of Mac OS including Rhapsody will not be supported but "blue box"
compatibility (similar to pending Acrobat blue box support) is required.
3. Multilingual Capability:
Infodata shall enhance Re:mark Software to support double-byte and roman
localization. Infodata shall perform a mock translation by the Delivery Date.
Infodata shall modify Re:mark Software to follow the Adobe Engineering
specifications so Adobe Release Engineering can generate a Localization kit for
the translators. If translations are to be made to French, German, Japanese,
Chinese, Korean, Dutch, Swedish, Spanish and Italian, such translations will be
done by Adobe translators, but Infodata shall fix any and all bugs in the core
code of Re:mark Software and/or the Modified Re:mark Software relating to
Localization.
4. Update Re:mark File Format:
Infodata shall document and present the Re:mark file format to "PDFLang" and
implement the changes that it recommends. Changes are expected in the following
areas: using appearances for drawing annotations, implementing RSA security at
the annotation level and cosmetic changes to the keys used in Re:mark
annotations.
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5. User Interface:
Infodata shall modify the User Interface of Re:mark Software, including the
Re:mark toolbar, so that such User Interface is compliant with that of Acrobat
4.0. Infodata shall modify Re:mark Software to support the new Selection Server,
if appropriate, and to support new command key equivalents and changes to menus
and toolbars as appropriate. No dialog changes are anticipated at this time.
6. Summarize Notes:
Infodata will extend the Summarize Notes feature in Acrobat to include notes
from Re:mark Software annotations (removing the text bubble and resolving the
text bubble vs. textnote differences).
7. Prior Re:mark Versions Support:
Infodata shall modify Re:mark Software to support previous versions of Re:mark
Software. Annotations saved in previous versions of Re:mark will be readable,
but new annotations cannot be saved in the old format. Some annotations (e.g.,
Free Text and Sound) will no longer be supported.
8. Import/Export API Feature:
Infodata shall develop a feature to import and export annotations in FDF.
9. Develop Web Annotation Capability:
Infodata shall enhance and extend Re:mark Software to send and retrieve
(separately stored) annotations over the Web using HTTP POST using the Grammar
Calls. The Grammar Calls will be integrated into the Modified Re:mark Software
and will not require any additional plug-ins or libraries for development or use
by third parties. Web annotations should work both in the browser window and
with the Acrobat 4.0 HTTP stack directly.
10. OPTIONAL: Develop Web Publishing Capability:
The feature described in this Section 10 (Web publishing capability) may be
developed and delivered at Infodata's option; provided that such optional
modification, if developed and delivered, must be delivered to Adobe no later
than the Delivery Date; provided further that the development work on this
optional feature shall not delay or otherwise impede Infodata in fully
performing all other Modifications specified in this Modification Plan.
Infodata's failure to deliver the feature described in this Section 10 shall not
effect a Service Fee reduction. Except for the Service Fee, Adobe shall not be
responsible for any additional charge or expense for this optional feature.
Optional Feature: Infodata may also deliver an optional feature to develop Web
publishing capability which will enhance and extend Acrobat to support one
button publishing using the Grammar Calls. The Grammar Calls will be integrated
into the Modified Re:mark Software and will not require any additional plug-ins
or libraries for development or
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<PAGE> 28
use by third parties. The user interface for the Web publishing component will
look similar to Infodata's Aerial Navigator tool.
11. Integrate with Adobe Engineering Process:
Infodata shall assist Adobe engineer on the project to integrate Re:mark build
process into the normal Adobe Engineering process. Iinfodata shall support the
transfer of Re:mark Software and Modified Re:mark Software source code and build
processes.
12. Provide Internal Documentation:
Infodata shall update current (as is) internal documentation for Re:mark
Software with a maximum of two person-week effort.
13. Provide QA Test Documents and Assistance:
Infodata shall provide Adobe all QA Test Documents used to test Re:mark.
Infodata shall provide at least 2 person-weeks of assistance to help Adobe QA
get familiar with Re:mark.
14. Quality Assurance Testing:
Adobe shall perform all Quality Assurance testing on the delivered and accepted
Alpha Version, Beta Version and Release Candidate of the Modified Re:mark. Adobe
may, at its discretion, perform Quality Assurance testing on any intermediate
release of the Modified Re:mark Software.
15. End User Documentation:
In connection with the license of the Modified Re:mark Software, Infodata shall
deliver the end user documentation related to the Re:mark Software. Adobe will
be responsible for modifying such documentation for the release of Acrobat 4.0.
ASSUMPTIONS
Windows platforms:
- Support Windows 95, 98 (when available), NT 3.51, NT 4.0 and NT 5.0 (when
available).
-No support for Windows 3.1, 3.11.
Macintosh platforms:
- Will support both Mac OS 7.x and 8.x.
- No support for the versions of Mac OS including Rhapsody but "blue box"
compatibility (similar to pending Acrobat blue box support) required.
Acrobat platform:
- Support for Acrobat 4.0.
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<PAGE> 29
- No plug-in support for viewing notes or some annotations in Acrobat Reader.
- No support for Acrobat 3.0 or 3.01.
Operation under Browsers:
- Type/vendor of browser parent to Remark.
- Will only test with Netscape and Microsoft Internet Explorer.
- Use the Acrobat HTTP stack when annotating documents within documents are
opened from the web directly.
- Use the browser's HTTP stack when operating in the Browser window. -Web
annotations will work in an external Acrobat window or within Acrobat.
Appearance Support:
- Design may depend on resolution of conflicts with annotation security
requirements.
- Operation under Reader will be limited to display of some annotation icons.
(Re:mark annotations will be hidden by default so no annotations will be shown
in Reader).
Security:
- Re:mark annotation specific security will be retained.
- Encryption of secured Re:mark annotation data will be converted to RSA if
required by "PDFLang"; will be independent of, and in addition to, Acrobat's
document security.
- No special license agreement required for RSA.
User Interface:
- Adobe will provide specifications, necessary Acrobat SDK extensions to support
required enhancements to Re:mark.
- Only Acrobat tool bar and menu items need to be updated; Re:mark dialog okay
as is.
- New Selection Server support will be added if appropriate.
Re:mark product changes:
- Support for current Re:mark Text and Sound annotations will be removed.
- Re:mark Rendering operation will be updated to be more consistent with Notes
summary; Adobe will provide technical support.
COST ESTIMATION
Infodata estimates the total effort required to develop the above features
(Alpha Version - feature complete version) to be 133 person weeks (not including
the Adobe engineer).
Infodata further estimates the effort required during the Alpha Version and Beta
Version stages of development to be 52 person weeks (not including the Adobe
engineer). This estimate is based on the Alpha Version and Beta Version stages
lasting for a total period of six months (January through June).
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<PAGE> 30
Infodata will provide all of these services on a time and materials basis at a
substantially reduced rate of $85 per man-hour. This substantially reduced rate
will be valid until June 30, 1998. Based on this rate, and the estimates
provided above, the total cost (Service Fee) to deliver a complete version of
Re:mark is approximately $729,000, and the project fee shall not exceed this
$729,000 unless Adobe materially revises the specifications of the Modifications
and the parties mutually agree to revise the Service Fee.
DELIVERY SCHEDULE
Based on a start date of October 24, 1997 and the above-listed assumptions,
Infodata anticipates delivery of the above-described enhancements by the Alpha
(feature-complete) date requested by Adobe of January 31, 1998. Infodata will
provide a weekly Project report to Adobe's Project Manager and identify any
delays or "red flags" as early in the development process as possible.
SERVICE FEES
Adobe shall pay the Service Fee in installments based upon calendar dates and/or
the successful completion of certain milestones:
(i) $100,000 pavable upon signing of the Letter of Intent;
(ii) $125,000 payable on November 30, 1997;
(iii) $125,000 payable on December 31, 1997;
(iv) $125,000 payable on January 31, 1997;
(v) $125,000 payable upon Adobe's acceptance of the Alpha Version of the
Modified Re:mark Software;
(vi) $129,000 (or the remaining Service Fee, if the Service Fee was revised
by agreement of the parties) paid upon Adobe's acceptance of the
Release Candidate of the Modified Re:mark Software.
SERVICE FEE REDUCTION
If Infodata fails to deliver the Modifications and the Alpha Version of the
Modified Re:mark Software by February 10, 1998 (through no delay or fault of
Adobe's), the Service Fee payment due upon acceptance of the Alpha Version
($125,000) shall be reduced by 10% ($12,500).
ACCEPTANCE PROCEDURES
Upon receipt of any deliverables by Infodata (e.g., Alpha Version, Beta Version,
Release Candidate), Adobe will test and accept or reject such deliverables
within two weeks of its receipt. If any release of the Modifications or Modified
Re:mark Software fails to meet any of the requirements in the Modification Plan
or in the event that Infodata fails to provide the deliverable in accordance
with the schedule provided within the Modification Plan, Adobe shall notify
Infodata in writing, and Infodata shall have an additional fourteen (14)
calendar days (the
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<PAGE> 31
"Correction Period") in which to correct or modify the deliverables to meet the
requirements or to provide the deliverables, and to resubmit or submit such
deliverables to Adobe for testing. If the deliverables fail to meet the
requirements at the end of the Correction Period, then at Adobe's option, (1)
the Correction Period may be extended as may be agreed by the parties, (2) Adobe
may terminate the applicable Consulting Agreement or the Agreement or (3) Adobe
may supply, correct or complete the deliverable item and either deduct an amount
equal to Adobe's fully-burdened costs (including without limitation direct
internal labor and fringe benefits and any sums, including royalties, paid to
third parties) from any payments due to Infodata or receive a refund from
lnfodata for such costs up to the total amount of the Service Fee paid by Adobe
hereunder. For the purpose of calculating Adobe's fully-burdened costs pursuant
to subsection (3) of this paragraph, internal labor costs shall be expensed at a
rate of $85 per man-hour. Adobe's fully-burdened costs shall be base If Adobe
does not notify Infodata in writing of its rejection of a deliverable within two
weeks of its receipt by Adobe, then Adobe shall be deemed to have accepted such
deliverables.
ADOBE REQUIREMENTS
In connection with the development undertaken by Infodata pursuant to this
Modification Plan, Adobe shall undertake the following:
1. Adobe will extend the FDF format of Acrobat to support an annotation creation
feature.
2. Adobe will provide technical assistance to Infodata engineers in implementing
the Summarize Notes feature, particularly with respect to Acrobat double byte
text annotations.
3. Adobe will generate the Localization Kit to assist in the localization of the
Modified Re:mark Software.
4. Adobe will perform the translation of Re:mark strings to all other languages
besides English
5. Adobe will extend the FDF toolkit to support "annotations" to support Import
and Export of Re:mark annotations in the FDF format.
6. Adobe will provide one senior engineer to work on the Modifications from the
agreed upon start date of this project till the release of Acrobat 4.0.
7. Adobe will provide engineering assistance in making Re:mark dialog boxes run
under Netscape and Internet Explorer browsers.
8. Adobe will provide technical assistance as necessary to Infodata to help get
approval of the Re:mark internal format (including Annotation Security) from the
"PDFLang" committee.
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<PAGE> 32
9. Adobe will provide Infodata standard third-party access to certain
engineering servers, subject to written agreement and a specified level of
access.
10. Acrobat's HTTP stack will, at a minimum, support HTTP 1.1 State Management
(cookies) (EFS).
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<PAGE> 33
EXHIBIT B
ADOBE SYSTEMS INCORPORATED
INSIDER TRADING POLICY STATEMENT
A. PURPOSE.
The purpose of this insider trading policy statement is to establish
guidelines to ensure that all Adobe employees and contractors and the
corporation itself comply with laws prohibiting trading in stock by persons
having knowledge of material non-public information ("Insider Information").
Employees or contractors who trade on Insider Information (or tip information to
others) can be personally liable for damages totaling up to three times the
profits made or loss avoided by the individual trading with inside information.
Insider trading is also a crime which can result in a fine (no matter how small
the profit) of up to one million dollars and a jail term of up to ten years.
Example: The SEC charged a secretary and her husband with securities
fraud. The secretary told her husband that her employer was about to
acquire another company. Her husband bought stock of the target company
before the public announcement and then sold the stock for a profit of
about $25,000. The couple signed a consent decree with the SEC, gave up
the $25,000 profit and paid a $10,000 penalty.
REMEMBER, the above penalties apply whether or not you benefit from
another's actions. For example, the SEC investigated the spouse of Genentech's
president in 1991. The spouse learned that a controlling interest in Genentech
would soon be acquired by Roche and she told her brother that "good things were
about to happen" and he should "buy Genentech stock now." Even though she did
not trade on the information, she paid a penalty of $162,000 for tipping her
brother, and her brother had to give up the profits and pay a criminal fine.
B. TRADING WHILE IN POSSESSION OF INSIDER INFORMATION.
No employee or contractor in possession of Insider Information should
trade in Adobe stock from the time he/she obtains such Insider Information until
the third business day following a press release of such Insider Information by
Adobe. For example, if the press release goes on the Businesswire Tuesday before
the stock market opens, trading cannot occur until Thursday morning. If the
press release goes out after the stock market closes on Tuesday, trading cannot
occur until Friday morning when the market reopens.
If you have any concerns about whether you are in possession of
information which falls within the definition of Insider Information, or if you
are in a sensitive position within Adobe, you should contact Adobe's Vice
President of Finance, or Colleen Pouliot, Adobe's General Counsel, before you
buy or sell Adobe stock. This will ensure that employees or contractors unaware
of a particular piece of information do not give the appearance of improperly
trading in Adobe stock.
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<PAGE> 34
If you have received Insider Information, you should not disclose this
information to anyone outside of Adobe. You also should not disclose this
information, in writing or casually, to any other Adobe employee or contractor
unless that employee or contractor has a need to know the information in order
to perform his or her job. When you provide Insider Information to an Adobe
employee or contractor, you should inform him or her that it is Insider
Information and that the employee or contractor is restricted from trading in
Adobe stock until the third business day following a press release of such
information by Adobe. You should also notify Adobe's General Counsel of any
Adobe employee or contractor who receives Insider Information.
C. POLICY STATEMENT.
Employees or contractors of Adobe should not buy or sell Adobe stock or
options while in the possession of Insider Information. Employees or contractors
also should not (1) reveal Insider Information to third parties for the purpose
of assisting their trading activities or, (2) make buy or sell recommendations
to third parties based upon such Insider Information. Employees or contractors
who knowingly trade Adobe stock while in the possession of Insider Information
will be subject to appropriate disciplinary action.
In order to avoid placing employees or contractors in a position in
which they are prevented from trading Insider Information should be limited to a
small group of employees who "need to know such information in order to perform
their jobs." If, however, Adobe management becomes aware that Insider
Information has been leaked widely within Adobe, then Adobe management will
impose a ban on trading for all employees and contractors.
In order to avoid selective disclosure of Insider Information to
parties outside of Adobe, employees or contractors should refer any requests for
financial information or financial projections to the Vice President of Finance
and/or John Warnock. This includes requests by analysts or others to corroborate
their financial projections for Adobe. Other inquiries from the investing
community or the press should be referred to, or cleared by, Director of
Corporate Communications, in order to ensure that Insider Information is not
inadvertently disclosed. Product managers for each of the Adobe products should
of course feel free to discuss any non-confidential matters relating to their
products with the press and others.
D. WHO IS AN INSIDER?
An Insider is anyone who possesses Insider Information.
Example: An OEM Business Manager knows that Adobe has signed an OEM
agreement with a potentially significant customer. Prior to public
announcement of the relationship, the OEM Business Manager is an
Insider because of his/her knowledge of the existence of this material,
new OEM.
Example: Adobe holds a company meeting on the day quarterly earnings
results are publicly announced. The employees are Insiders until the
third business day after the
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<PAGE> 35
results are released (See Paragraph B ("Trading, While in Possession of
Insider Information") above).
E. DEFINITION OF INSIDER INFORMATION.
Insider Information means material information which has not been
disclosed to the public that has a substantial likelihood of affecting a
reasonable investor's decision to buy, sell, or hold Adobe's securities or that
would significantly affect the market price of Adobe's securities.
Examples of Insider Information:
- negotiation and/or execution of an OEM contract with a
potentially significant, unannounced customer or loss of a
significant OEM
- quarterly or annual financial results of Adobe as a whole or
the financial results of either the Systems Division or the
Application Products Division before they are announced
- major new announced products
- unannounced dividend information
- unannounced stock splits
- unannounced major financing
- unannounced significant personnel changes
- unannounced significant acquisitions or dispositions of assets
- unannounced significant litigation
The materiality of preliminary merger negotiations depends upon a
balancing of the probability that the transaction will occur and its
significance to Adobe.
F. INTERPRETATION.
If you have questions about the scope or application of this Policy
Statement, please see Colleen Pouliot, Adobe's General Counsel.
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<PAGE> 36
EXHIBIT B
DESCRIPTION OF MODIFIED RE:MARK SOFTWARE
RESIDUAL RE:MARK SOFTWARE
All portions of the Modified Re:mark Software, including Documentation, other
than the Common Shared Library and the Grammar Calls, which are described below.
COMMON SHARED LIBRARY
The Common Shared Library consists of the following four libraries: Y, Z2,
Plugin, and PluginUI.
GRAMMAR CALLS
VFC GRAMMAR SERVICES OVERVIEW
The vfcWebAPGrammar includes the use of five (5) standard VFC Service Classes
and their related thirteen (13) Services, as described below. The five standard
VFC Service Classes and their related thirteen Services will be renamed by Adobe
and Infodata to a mutually agreed upon set of names no later than January 26,
1998.
1. vfcObject -- Refers to a generic object in the repository,
such as a container or a document.
2. vfcContainer -- Refers to an object that can contain other
VfcObjects.
3. VfcDocument -- Refers to a document in the repository.
4. VfcAnnotation -- Refers to a set of individual annotations to
a document, collected by their author, in the repository.
5. vfcSession -- Refers to session-oriented controls, such as
users, groups, etc., actively in the service provider's system. These controls
are normally used to assign permissions.
The related Services supported for each VFC Service Class are categorized by
their generality into three (3) categories:
1. Global Services
2. Annotation Services
3. Publishing Services
Please note that implementing the Publishing Services is optional for a service
provider.
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<PAGE> 37
The Services are summarized below, and will be described in detail in the
following sections. The Services are expressed in the form --
SERVICECLASS::SERVICE where
- SERVICE CLASS represents one of the Service Classes listed above; and
- SERVICE represents one of the Services related to that Service Class, as
listed below.
Global Services
1. vfcContainer::browse -- This service is used to traverse (navigate) a service
provider's repository.
2. vfcObject::execCmd -- This service is used to pass a miscellaneous command to
the HTTP-bound service provider for execution. Its content are entirely dictated
by the HTTP-bound service provider, and are passed intact.
3. vfcSession::getGroups -- This service is used to retrieve the names of all
the user groups actively in the service provider's environment.
4. vfcSession::getUsers -- This service is used to retrieve the names of all the
users actively in the service provider's environment.
Annotation Services
1. vfcAnnotation::create -- This service is used to create (store) a collection
of individual annotations by a specific author for a specific document as a
single annotation object in the service provider's repository.
2. vfcAnnotation::get -- This service is used to retrieve an annotation object
by a specific author associated with a specific document.
3. vfcAnnotation::getList -- This service is used to retrieve a list of
annotation objects (by various authors) associated with a specific document.
4. vfcAnnotation::remove -- This service is used to remove an annotation object
by a specific author associated with a specific document.
5. vfcAnnotation::replace -- This service is used to replace an annotation
object by a specific author associated with a specific document.
Publishing Services (Optional)
1. vfcDocument::create -- This service is used to create a document in the
service provider's repository.
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<PAGE> 38
2. vfcDocument::getNative -- This service is used to retrieve the contents of a
document.
3. vfcDocument::remove -- This service is used to remove an existing document
from a service provider's repository.
4. vfcDocument::replace -- This service is used to replace a document in the
service provider's repository.
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<PAGE> 39
EXHIBIT C
ADOBE - INFODATA CROSS LICENSE AGREEMENT
- 39 -
<PAGE> 40
Adobe Systems Incorporate
End User License Agreement
PLEASE SIGN AND RETURN ANY ACCOMPANYING REGISTRATION FOR TO RECEIVE REGISTRATION
BENEFITS
NOTICE TO USER:
THIS IS A CONTRACT. BY OPENING THIS PACKAGE YOU ACCEPT ALL THE TERMS AND
CONDITIONS OF THIS AGREEMENT. If you do not agree with the terms and conditions
of this Agreement, return this media envelope, UNOPENED, along with the rest of
the package, to Adobe Systems Incorporated ("Adobe") or the location where you
obtained it.
This package contains software ("Software") and related explanatory written
materials ("Documentation"). The term "Software" shall also include any
upgrades, modified versions, updates, additions, and copies of the Software
licensed to you by Adobe. Adobe grants to you a nonexclusive license to use the
Software and Documentation, provided that you agree to the following:
1. USE OF THE SOFTWARE.
You may--
- Install the Software in a single location on a hard disk or other storage
device of up to the number of computers indicated in the upper right hand
corner ("Permitted Number of Computers") of this Agreement.
- Provided the Software is configured for network use, install and use the
Software on a single file server for use on a single local area network
for either (but not both) of the following purposes:
(1) permanent installation onto a hard disk or other storage device of up to
the Permitted Number of Computers; or
(2) use of the Software over such network, provided the number of different
computers on which the Software is used does not exceed the Permitted
Number of Computers. For example, if there are 100 computers connected to
the server, with no more than 15 computers ever using the Software
concurrently, but the Software will be used on 25 different computers at
various times, the Permitted Number of Computers for which you need a
license is 25.
- Make one backup copy of the Software, provided your backup copy is not
installed or used on any computer.
HOME USE. The primary user of each computer on which the Software is installed
or used may also install the Software on one home or portable computer.
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<PAGE> 41
However, the Software may not be used on the secondary computer by another
person at the same time the Software on the primary computer is being used.
FONT SOFTWARE. If the Software includes font software, you may
- Use the font software as described above on the Permitted Number of
Computers and output such font software on any output devices connected to
such computers.
- If the Number of Permitted Computers is five or fewer, download the font
software to the memory (hard disk or RAM) of one output device connected
to at least one of such computers for the purpose of having such font
software remain resident in the output device, and of one additional such
output device for every multiple of five represented by the Number of
Permitted Computers.
- Take a copy of the font(s) you have used for a particular file to a
commercial printer or other service bureau, and such service bureau may
use the font(s) to process your file, provided such service bureau has
informed you that it has purchased or been granted a license to use that
particular font software.
- Convert and install the font software into another format for use in other
environments, subject to the following conditions: A computer on which the
converted font software is used or installed shall be considered as one of
your Permitted Number of Computers. You agree that use of the font
software you have converted shall be pursuant to all the terms and
conditions of this Agreement, that such font software may be used only for
your own customary internal business or personal use and that such font
software may not be distributed or transferred for any purpose, except in
accordance with Paragraph 3 below.
2. COPYRIGHT. The Software is owned by Adobe and its suppliers, and its
structure, organization and code are the valuable trade secrets of Adobe and its
suppliers. The Software is also protected by United States Copyright Law and
International Treaty provisions. You must treat the Software just as you would
any other copyrighted material, such as a book. You may not copy the Software or
the Documentation, except as set forth in the "Use of the Software" section. Any
copies that you are permitted to make pursuant to this Agreement must contain
the same copyright and other proprietary notices that appear on or in the
Software. Except for font software converted to other formats as permitted in
the "Use of the Software" section, you agree not to modify, adapt or translate
the Software. You also agree not to reverse engineer, decompile, disassemble or
otherwise attempt to discover the source code of the Software. Trademarks shall
be used in accordance with accepted trademark practice, including identification
of trademark owner's name. Trademarks can only be used to identify printed
output produced by the Software. Such use of any trademark does not give you any
rights of ownership in that trademark. Except as stated above, this Agreement
does not grant you any intellectual property rights in the Software.
3. TRANSFER. You may not rent, lease, sublicense or lend the Software or
Documentation. You may, however, transfer all your rights to use the Software to
another person or legal entity provided that you transfer this Agreement, the
Software, including all copies, updates and prior
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<PAGE> 42
versions and all copies of font software converted into other formats, and all
Documentation to such person or entity and that you retain no copies, including
copies stored on a computer.
4. MULTIPLE ENVIRONMENT SOFTWARE/MULTIPLE LANGUAGE MEDIA SOFTWARE/MULTIPLE
COPIES/UPGRADES. If this package contains, or, in connection with the
acquisition of the Software contained in this package you receive, two or more
operating environment versions of the Software (e.g. Macintosh(R) and
Windows(R)), two or more language translation versions of the Software, the same
Software on two or more media (e.g., diskettes and a CD-ROM), and/or you
otherwise receive two or more copies of the Software, the total aggregate number
of computers on which all versions of the Software are used may not exceed the
Permitted Number of Computers. You may make one back-up copy, in accordance with
the terms of this Agreement, for each version of the Software you use. You may
not rent, lease, sublicense, lend or transfer versions or copies of the Software
you do not use, or Software contained on any unused media, except as part of the
permanent transfer of all Software and Documentation as described above. If you
acquire an upgrade or update for Software, you may use the previous version for
ninety (90) days after you receive the new version in order to assist you in the
transition to the new version, after which time you no longer have a license to
use the previous version, and all copies thereof, including copies installed on
computers, must be destroyed.
5. LIMITED WARRANTY. Adobe warrants to you that the Software will perform
substantially in accordance with the Documentation for the ninety (90) day
period following your receipt of the Software. This warranty does not apply to
font software converted into other formats. To make a warranty claim, you must
return the Software to the location where you obtained it along with a copy of
your sales receipt within such ninety (90) day period. If the Software does not
perform substantially in accordance with the Documentation, the entire and
exclusive liability and remedy shall be limited to either, at Adobe's option,
the replacement of the Software or the refund of the license fee you paid for
the Software. ADOBE AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE
OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE OR DOCUMENTATION. THE FOREGOING
STATES THE SOLE AND EXCLUSIVE REMEDIES FOR ADOBE'S OR ITS SUPPLIERS' BREACH OF
WARRANTY. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, ADOBE AND ITS SUPPLIERS
MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO NONINFRINGEMENT OF THIRD PARTY
RIGHTS, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. Some states or
jurisdictions do not allow the exclusion of implied warranties or limitations on
how long an implied warranty may last, so the above limitations may not apply to
you. To the extent permissible, any implied warranties are limited to ninety
(90) days. This warranty gives you specific legal rights. You may have other
rights which vary from state to state or jurisdiction to jurisdiction. For
further warranty information, please contact Adobe's Customer Support
Department.
6. LIMITATION OF LIABILITY. IN NO EVENT WILL ADOBE OR ITS SUPPLIERS BE LIABLE TO
YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING ANY LOST
PROFITS OR LOST SAVINGS, EVEN IF AN ADOBE REPRESENTATIVE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. Some states or
jurisdictions do not allow
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<PAGE> 43
the exclusion or limitation of incidental, consequential or special damages, so
the above limitations may not apply to you.
7. GOVERNING LAW AND GENERAL PROVISIONS. This Agreement will be governed by the
laws in force in the State of California excluding the application of its
conflict of law rules. This Agreement will not be governed by the United Nations
Convention on Contracts for the International Sale of Goods, the application of
which is expressly excluded. If any part of this Agreement is found void and
unenforceable, it will not affect the validity of the balance of the Agreement,
which shall remain valid and enforceable according to its terms. You agree that
the Software will not be shipped, transferred or exported into any country or
used in any manner prohibited by the United States Export Administration Act or
any other export laws, restrictions or regulations. This Agreement shall
automatically terminate upon failure by you to comply with its terms. This
Agreement may only be modified in writing signed by an authorized officer of
Adobe.
8. NOTICE TO GOVERNMENT END USERS. If this product is acquired under the terms
of a: GSA contract- Use, reproduction or disclosure is subject to the
restrictions set forth in the applicable ADP Schedule contract; DoD contract-
Use, duplication or disclosure by the Government is subject to restrictions as
set forth in subparagraph (c) (1) (ii) of 252.227-7013; Civilian agency
contract- Use, reproduction, or disclosure is subject to 52.227-19 (a) through
(d) and restrictions set forth in the accompanying end user agreement.
Unpublished-rights reserved under the copyright laws of the United States.
Adobe Systems Incorporated, 345 Park Avenue, San Jose, CA 95110-2704.
Adobe is a trademark of Adobe Systems Incorporated. Mackintosh is a registered
trademark of Apple Computer, Inc. Windows is a registered trademark of Microsoft
Corporation.
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<PAGE> 44
EXHIBIT D
MASTER AGREEMENT FOR MUTUAL NON-DISCLOSURE OF INFORMATION
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<PAGE> 45
ADOBE SYSTEMS INCORPORATED
MASTER AGREEMENT
FOR
MUTUAL DISCLOSURE OF INFORMATION
Effective Date: 04 / 04 / 96
(Month Day Year)
This Agreement governs the disclosure of information by and between
Infodata Systems Inc. ________________ having a principal place of business or
residing at 12150 Monument Drive, Suite 400, Fairfax, Virginia 22033 (the
"Company") and Adobe Systems Incorporated and its subsidiaries and affiliates,
having a principal place of business at 1585 Charleston Road, P.O. Box 7900,
Mountain View, California 94039-7900 ("Adobe").
1. "Confidential Information" as used in this Agreement shall mean any and
all technical and non-technical information including patent, trade
secret, and proprietary information, techniques, sketches, drawings,
models, inventions, know-how, processes, apparatus, equipment, algorithms,
software programs, software source documents, and formulae related to the
current, future and proposed products and services of each of the parties,
and includes, without limitation, their respective information concerning
research, experimental work, development, designs details and
specifications, engineering, financial information, procurement
requirements, purchasing, manufacturing, customer lists, business
forecasts, sales and merchandising and marketing plans and information.
2. If the Confidential Information is contained in a writing, it will be
marked as Confidential or proprietary information of the disclosing party.
If the Confidential Information is disclosed orally or visually, it shall
be identified as such at the time of disclosure and confirmed in a writing
to the recipient within 30 days of such disclosure.
3. Each of the parties agrees that it will make use of, disseminate, or in
any way disclose any Confidential Information of the other party to any
person, firm or business, except to the extent necessary for negotiations,
discussions, and consultants with personnel or authorized representatives
of the other party and any purpose the other party may hereafter authorize
in writing. Furthermore, the existence of any business discussions,
negotiations or agreements in progress between the parties shall not be
released to any form of public media without approval of both parties.
4. Each of the parties agrees that it shall disclose Confidential Information
of the other party only to those of its employees who need to know such
information and who have previously agreed, either as a condition to
employment or in order to obtain the Confidential Information, to be bound
by terms and conditions substantially similar to those of this Agreement.
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<PAGE> 46
5. Each of the parties agrees that it shall treat all Confidential
Information of the other party with the same degree of care as it accords
to its own Confidential Information, and each of the parties represents
that it exercises reasonable care to protect its own Confidential
Information.
6. Each of the parties agrees that it will not modify, reverse engineer,
decompile, create other works from, or disassemble any software programs
contained in the Confidential Information of the other party unless
otherwise specified in writing by the disclosing party.
7. Each party's obligations under Paragraphs 3, 4, and 5 with respect to any
portion of the other party's Confidential Information shall terminate when
the party to whom Confidential Information was disclosed (the "Recipient")
can document that: (a) it was in the public domain at the time it was
communicated to the Recipient by the other party; (b) it entered the
public domain subsequent to the time it was communicated to the Recipient
by the other party through no fault of the Recipient; (c) it was in the
Recipient's possession free of any obligation of confidence at the time it
was communicated to the Recipient by the other party; (d) it was
rightfully communicated to the Recipient's free of any obligation of
confidence subsequent to the time it was communicated to the Recipient by
the other party; (e) it. was developed by employees or agents of the
Recipient independently of and without reference to any information
communicated to the Recipient by the other party; (f) it was communicated
by the other party to an unaffiliated third party free of any obligation
of confidence; (g) the communication was in response to a valid order by a
court or other governmental body, was otherwise required by law, or was
necessary to establish the rights of either party under this Agreement; or
(h) it was not legended as Confidential Information of the disclosing
party and if disclosed orally or visually, it was not Identified as
Confidential Information of the disclosing party at the time of such
communication and followed by a writing within thirty (30) days of such
disclosure.
8. All materials (including, without limitation, documents, drawings, models,
apparatus, sketches, designs and lists) furnished to one party by the
other, and which are designated in writing to be the property of such
party, shall remain the property of such party and shall be returned to it
promptly at its request, together with any copies thereof.
9. Neither party shall communicate any information to the other in violation
of the proprietary rights of any third party.
10. Neither party acquires any licenses under any intellectual property rights
of the other party under this Agreement
11. Neither party shall export, directly or indirectly, any technical data
acquired from the other pursuant to this Agreement or any product
utilizing any such data to any country for which the U.S. Government or
any agency thereof at the time of export requires an export license or
other government approval without first obtaining such license or
approval.
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<PAGE> 47
12. Neither party will assign or transfer any rights or obligations under this
Agreement without the prior written consent of the other party.
13. This Agreement shall govern all communications between the parties that
are made during the period from the effective date of this Agreement to
the date on which either party receives from the other written notice that
subsequent communications shall not be so governed, provided, however,
that each party's obligations under Paragraphs 3, 4 and 5 with respect to
Confidential Information of the other party which it has previously
received shall continue unless and until terminated pursuant to Paragraph
7.
14. This Agreement shall be governed in all respects by the laws of the United
States of America and by the laws of the State of California as such laws
are applied to agreements entered into and to be performed entirely within
California between California residents.
15. This Agreement may only be changed by mutual agreement of authorized
representatives of the parties in writing.
16. All notices or reports permitted or required under this Agreement shall be
in writing and shall be by personal delivery, telegram, telex, telecopier,
facsimile transmission or by certified or registered mail, return receipt
requested, and shall be deemed given upon personal delivery, five (5) days
after deposit in the mail, or upon acknowledgment of receipt of electronic
transmission. Notices shall be sent to the addresses set forth at the end
of this Agreement or such other address as either party may specify in
writing. If notice is sent to Adobe, It shall be sent to the signatory,
with a copy to its General Counsel.
IN WITNESS WHEREOF, the parties have executed this Agreement in duplicate
as of the date first written above.
"Adobe" "Company"
ADOBE SYSTEMS INCORPORATED Infodata Systems Inc.
*Signature of officer is required --------------------------------------
Signature: /s/ M. Bruce Nakao Signature:/s/ Richard M. Tworek
------------------------- ----------------------------
Print Print
Name: M. Bruce Nakao Name: Richard M. Tworek
------------------------------ --------------------------------
Title: CFO Title: Senior Vice President
----------------------------- -------------------------------
1585 Charleston Road Address: 12150 Monument Drive
P.O. Box 7900 Suite 400
Mountain View, CA 94039-7900 Fairfax Virginia 22033
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