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EXHIBIT 10.9
AGREEMENT dated as of April 1, 1994 between
INTERNATIONAL BUSINESS MACHINES CORPORATION,
a New York corporation (hereinafter called IBM),
and STAC ELECTRONICS, INC., a California
corporation (hereinafter called STAC).
Each of the parties has the right (as GRANTOR herein) to grant licenses
to the other party (as GRANTEE herein) under certain patents and desires to
acquire a nonexclusive license under such patents of the other party.
Each of the parties expects to continue research and development which
will produce further patents and each party may require a nonexclusive license
under such patents of the other party.
In consideration of the premises and mutual covenants herein contained,
IBM and STAC agree as follows:
Section 1. Definitions
1.1 "Information Handling System" shall mean any instrumentality or
aggregate of instrumentalities primarily designed to compute, classify, process,
transmit, receive, retrieve, originate, switch, store, display, manifest,
measure, detect, record, reproduce, handle or utilize any form of information,
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intelligence or data for business, scientific, control or other purposes.
1.2 "IHS Product" shall mean:
1.2.1 one or more Information Handling Systems;
1.2.2 any instrumentality or aggregate of instrumentalities designed for
incorporation into an Information Handling System;
1.2.3 one or more IHS Programs; or
1.2.4 any combination of the foregoing.
1.3 "IHS Program" shall mean a plurality of instructions capable of being
executed by an Information Handling System, whether or not such instructions are
in a machine-readable form and regardless of the medium in which such "IHS
Program" is stored, i.e. disk, tape, Read Only Memory, etc.
1.4 "STAC Program" shall mean an IHS Program which is capable of, and
primarily designed for, being executed by a Personal System Product.
1.5 "IBM Licensed Patents" shall mean all patents, including utility models
and including design patents and registrations for type fonts (but not including
any other design patents or
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registrations), issued or issuing on patent applications entitled to an
effective filing date prior to April 1, 1999, under which patents or the
applications therefor IBM or any of its Subsidiaries now has the right to grant
licenses to STAC of or within the scope granted herein without such grant or the
exercise of rights thereunder resulting in the payment of royalties or other
consideration by IBM or its Subsidiaries to third parties (except for payments
between IBM and Subsidiaries of IBM, and payments to third parties for
inventions made by said third parties while employed by IBM or any of its
Subsidiaries). The term "IBM Licensed Patents" shall also include said patent
applications and any patent reissuing on any of the aforesaid patents.
1.6 "IBM Licensed Products" shall mean IHS Programs.
1.7 "STAC Licensed Patents" shall mean all patents, including utility models
and including design patents and registrations for type fonts (but not including
any other design patents or registrations), issued or issuing on patent
applications entitled to an effective filing date prior to April 1, 1999, under
which patents or the applications therefor STAC or any of its Subsidiaries now
has the right to grant licenses to IBM of or within the scope granted herein
without such grant or the
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exercise of rights thereunder resulting in the payment of royalties or other
consideration by STAC or its Subsidiaries to third parties (except for payments
between STAC and Subsidiaries of STAC, and payments to third parties for
inventions made by said third parties while employed by STAC or any of its
Subsidiaries). The term "STAC Licensed Patents" shall also include said patent
applications and any patent reissuing on any of the aforesaid patents.
1.8 "STAC Licensed Products" shall mean STAC Programs.
1.9 "Subsidiary" shall mean a corporation, company or other entity:
1.9.1 more than fifty percent (50%) of whose outstanding shares or securities
(representing the right to vote for the election of directors or other
managing authority) are, now or hereafter, owned or controlled, directly
or indirectly, by a party hereto, but such corporation, company or other
entity shall be deemed to be a Subsidiary only so long as such ownership
or control exists; or
1.9.2 which does not have outstanding shares or securities, as may be the case
in a partnership, joint venture or unincorporated association, but more
than fifty percent
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(50%) of whose ownership interest representing the right to make the
decisions for such corporation, company or other entity is, now or
hereafter, owned or controlled, directly or indirectly, by a party
hereto, but such corporation, company or other entity shall be deemed to
be a Subsidiary only so long as such ownership or control exists.
1.10 "Licensed Patents" shall mean IBM Licensed Patents and STAC Licensed
Patents.
1.11 "Licensed Products" shall mean IBM Licensed Products and STAC Licensed
Products.
1.12 "Personal System Product" shall mean an IHS Product which does not
include one or more general or special purpose processing units primarily
designed for operating under any of the following IBM operating systems or
emulations or follow-on extensions thereof: VM, MVS, VSE, System 360, System
370, System 390 and OS/400.
Section 2. Licenses
2.1 IBM, on behalf of itself and its Subsidiaries, grants to STAC a
worldwide, fully paid-up, nonexclusive license under the
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IBM Licensed Patents to make, use, lease, license, sell and otherwise transfer
STAC Licensed Products and to combine such STAC Licensed Products with IHS
Products; provided, however, that such license shall not be construed to cover
the manufacture, lease, sale or other transfer of any IHS Product per use which
forms a part of such combination unless otherwise licensed hereunder.
In the event that neither IBM nor any of its Subsidiaries has the right to grant
a license under any particular IBM Licensed Patent of the scope set forth above
in this Section 2.1, then the license granted herein under said IBM Licensed
Patent shall be o the broadest scope which IBM or any of its Subsidiaries has
the right to grant within the scope set forth above.
2.2 STAC, on behalf of itself and its Subsidiaries, grants to IBM a
worldwide, fully paid-up, nonexclusive license under the STAC Licensed Patents
to make, use, lease, license, sell and otherwise transfer IBM Licensed Products
and to combine such IBM Licensed Products with IHS Products; provided, however,
that such license shall not be construed to cover the manufacture, lease, sale
or other transfer of any IHS Product per use which forms a part of such
combination unless otherwise licensed hereunder.
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In the event that neither STAC nor any of its Subsidiaries has the right to
grant a license under any particular STAC Licensed Patent of the scope set forth
above in this Section 2.2, then the license granted herein under said STAC
Licensed Patent shall be of the broadest scope which STAC or any of its
Subsidiaries has the right to grant within the scope set forth above.
2.3 IBM, on behalf of itself and its Subsidiaries, hereby grants to STAC's
customers a worldwide, fully paid-up, nonexclusive license under only those IBM
Licensed Patents having claims that would be infringed by the combination of
STAC Licensed Products with IHS Products and only for the formation of
combinations of STAC Licensed Products with IHS Products, irrespective of the
source of the IHS Products; provided, however, that such license shall not be
construed to cover the manufacture, lease, sale or other transfer of any IHS
Product per use which forms a part of such combination.
2.4 STAC, on behalf of itself and its Subsidiaries, hereby grants to IBM's
customers (excluding Microsoft Corporation or any of its Subsidiaries) a
worldwide, fully paid-up, nonexclusive license under only those STAC Licensed
Patents having claims that would be infringed by the combination of IBM Licensed
Products with IHS Products and only for the formation of combinations of
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IBM Licensed Products with IHS Products, irrespective of the source of the IHS
Products; provided, however, that such license shall not be construed to cover
the manufacture, lease, sale or other transfer of any IHS Product per use which
forms a part of such combination.
2.5 Except as provided in Sections 2.3 and 2.4, no license or immunity is
granted by either party hereto either directly or by implication, estoppel or
otherwise to any third parties acquiring items from either party for the
combination of items licensed hereunder with other items or for the use of such
combination. Notwithstanding any other provision of this Agreement, IBM shall
have no right or power to grant to Microsoft Corporation or any of its
Subsidiaries any license, whether express or implied, under any STAC Licensed
Patents. The foregoing limitation shall apply to any transaction between IBM (or
its Subsidiaries) and Microsoft Corporation (or its Subsidiaries) involving IBM
products which include compression/decompression functions and which would have
the effect of, or be equivalent to, conveying to Microsoft Corporation (or its
Subsidiaries) a license under any STAC Licensed Patents. Any such products
licensed to Microsoft Corporation (or its Subsidiaries) shall be considered IBM
Licensed Products only to the extent that STAC has granted to Microsoft
Corporation a license under the STAC Licensed Patents.
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2.6 Except as provided in Section 3, neither party shall have the right to
grant sublicenses to others.
Section 3. Extension of License to Subsidiaries
3.1 The licenses granted herein shall include the right of the parties
hereto to sublicense their respective Subsidiaries and the right of such
sublicensed Subsidiaries to sublicense other Subsidiaries. Each sublicensed
Subsidiary shall be bound by the terms and conditions of this Agreement. If a
Subsidiary ceases to be a Subsidiary and holds any patents under which a party
hereto is licensed, such licenses will continue for the life of such patents.
Any sublicense granted to a Subsidiary shall terminate on the date such
Subsidiary ceases to be a Subsidiary.
3.2 In the event a sublicensed Subsidiary of one party hereto is an
Operating Subsidiary (as hereinafter defined) at the time it ceases to be a
Subsidiary, and, with the written approval of said one party, requests in
writing, within one hundred and eighty (180) days after ceasing to be a
Subsidiary, a license agreement with the other party hereto upon terms and
conditions substantially identical with the terms and conditions of this
Agreement, as granted to said one party, (except as hereinafter provided) the
other party hereto agrees that it will enter into such license agreement
forthwith. An Operating Subsidiary shall
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be any Subsidiary of one party hereto which at the time it ceases to be a
Subsidiary has all of the following:
3.2.1 a line of marketable products;
3.2.2 patents or other intellectual property relating to the line of
marketable products;
3.2.3 tangible assets at least equivalent in value to the lesser of
twenty-five million U.S. dollars ($25,000,000) or twenty percent (20%)
of the total tangible assets of the party of which it was formerly a
Subsidiary; and
3.2.4 at the time of entry into such license agreement, it is not a
corporation, company or other entity:
3.2.4.1 more than fifty percent (50%) of whose outstanding shares or securities
(representing the right to vote for the election of directors or other
managing authority) are; or
3.2.4.2 which does not have outstanding shares or securities, as may be the case
in a partnership, joint venture or unincorporated association, but more
than fifty percent (50%) of whose ownership interest representing the
right to make the decisions for such corporation, company or other
entity is;
owned or controlled, directly or indirectly, by a third party.
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Any such agreement with an Operating Subsidiary shall differ from this
Agreement in the following respects:
3.2.5 this Section 3.2 and Sections 4 and shall be omitted;
3.2.6 the name of the Operating Subsidiary shall be substituted for the name
of the party hereto of which it was formerly a Subsidiary; and
3.2.7 in the event that such Operating Subsidiary is or becomes organized
under the laws of a country different from that of the party hereto of
which it was formerly a Subsidiary, such license agreement shall contain
such additional terms and conditions (other than royalty provisions) as
may exist in patent license agreements between the other party hereto
and other entities organized under the laws of the same country.
Section 4. Release
4.1 Each party, on behalf of itself and its Subsidiaries which are
Subsidiaries as of the date of this Agreement, hereby irrevocably releases the
other party, its Subsidiaries which are Subsidiaries as of the date of this
Agreement, and its and their respective customers, mediate and immediate, from
any and all claims of infringement of any of its Licensed Patents, which claims
have been made or which might be made at any time, with
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respect to any item manufactured, used, leased, sold or otherwise transferred by
the other party or its Subsidiaries before the effective date of this Agreement,
and with respect to any method practiced in the manufacture or use of such item,
to the extent that such item or method would have been licensed hereunder had it
been manufactured, used, leased, sold or otherwise transferred or practiced by
the other party after the date of this Agreement. The release contained herein
shall not apply to any person other than those specified in this Section 4.1 and
shall not apply to manufacture by any person other than a party to this
Agreement or its Subsidiary.
Section 5. Other License Rights
5.1 It is recognized that the parties hereto or their respective
Subsidiaries may, as of the date set forth above, have the right to grant
licenses under one or more patents of any country, including utility models and
including design patents and registrations for type fonts (but not including any
other design patents or registrations), issuing on patent applications entitled
to an effective filing date prior to April 1, 1999, but that such grant or the
exercise of rights thereunder will result in payment of royalties or other
consideration by GRANTOR or its Subsidiaries to third parties. Each party (as
GRANTOR herein) agrees that, upon written request, it will grant to the other
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party to the extent and subject to the terms and conditions under which it then
has the right to do so, a license of the broadest scope which GRANTOR has the
right to grant at any time but of no greater scope than the scope of the
licenses granted herein with respect to any such patent. Such license shall be
granted under a separate agreement, upon payment of the same royalty or other
consideration as that which GRANTOR or any of its Subsidiaries is obligated to
pay to a third party because of the grant of such license or the exercise of
rights thereunder.
5.2 Upon written request by a party, the other party will inform the
requesting party of those patents or patent applications coming within the scope
of Section 5.1 promptly after receipt of such request.
Section 6. Term of Agreement
6.1 The term of this Agreement shall be from the date hereof until the
expiration of the last to expire of the Licensed Patents, unless terminated
pursuant to Section 6.3.
6.2 In the event that more than fifty percent (50%) of the outstanding
shares or securities (representing the right to vote for the election of
directors or other managing authority) of one party hereto hereafter become
owned or controlled, directly or
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indirectly, by a third party, said one party shall promptly give notice of such
acquisition to the other party. If said one party does not have outstanding
shares or securities, such acquisition shall be deemed to occur if more than
fifty percent (50%) of its ownership interest representing the right to make
decisions for said party is acquired by said third party. All rights granted
hereunder to said one party together with any sublicenses theretofore granted by
said one party shall terminate on a termination date one hundred and eighty
(180) days after the date of such acquisition.
In the event of such acquisition,
6.2.1 all licenses granted herein to said other party under any patents
issuing on patent applications having an effective filing date
subsequent to said termination date and under said patent applications
shall terminate; and
6.2.2 said one party shall be entitled, upon request made within one hundred
and eighty (180) days after the date of such acquisition to a
nontransferable, nonexclusive, royalty free license under said other
party's Licensed Patents (including the right to sublicense its
Subsidiaries) to make, use, lease and sell only products of the same
type manufactured and marketed by said one party within the licenses
granted in this Agreement prior to such
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acquisition, except that any such license agreement shall differ from
this Agreement in the following respects:
6.2.2.1 the license grant to said one party in Section 2.1 or 2.2, as the case
may be, shall be limited in amount to annual sales equal to the sales of
Licensed Products (IBM Licensed Products if IBM is said party or STAC
Licensed Products if STAC is said party) by said one party and its
sublicensed Subsidiaries which are included in such acquisition in the
consecutive twelve-month period that immediately precedes the date of
such acquisition plus forty million dollars ($40,000,000.); and
6.2.2.2 the license grant to said one party in Section 2.1 or 2.2, as the case
may be, shall include a grant of a royalty bearing license to said one
party by said other party for all other sales of said one party's
Licensed Products (as defined in this Agreement) under said party's
Licensed Patents (as defined in this Agreement) under said other party's
then standard licensing practice and on such standard terms and
conditions as said other party is offering comparable royalty bearing
licenses at the time such a license agreement is requested.
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6.3 This Agreement, and all licenses granted hereunder, shall be
irrevocable, except that STAC may terminate this Agreement only within 30 days
after 12 months after delivery by STAC to IBM of Licensed Programs, Related
Materials and Development Environment under the License Agreement between the
parties (Number P94124) and only to the extent IBM has not provided STAC with
written notice of the commencement of the Delivery Period under such License
Agreement. In order for such termination to be effective, STAC must inform IBM,
in writing, within the 30 day period specified above, of its intention to
terminate this Agreement, in which case such termination will be effective 60
days after receipt of such written notice. All Licensed Products of either party
made to completion, licensed, sold, or otherwise transferred prior to the
effective date of termination shall continue to be licensed under the other
party's Licensed Patents irrespective of the termination of this Agreement.
Section 7. Warranty
7.1 Each party represents and warrants that it has the full right and power
to grant the licenses and release set forth in Sections 2 and 4 and that there
are no outstanding agreements, assignments or encumbrances inconsistent with the
provisions of said Sections or with any other provision of this Agreement. Each
party (as a GRANTOR) further represents and warrants that
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prior to the execution of this Agreement it has informed the other party of any
patent originating from inventions made by employees of GRANTOR or its
Subsidiaries, which patent is now owned by GRANTOR or its Subsidiaries and which
patent, owing to prior arrangements with third parties, does not, or will not,
qualify as its Licensed Patent, under which licenses are granted of the full
scope set forth in Section 2. Neither party makes any other representations or
warranties, express or implied, nor does either party assume any liability in
respect of any infringement of patents or other rights of third parties owing to
the other party's operation under the license herein granted.
Section 8. Communications
8.1 Any notice or other communication required or permitted to be made or
given to either party hereto pursuant to this Agreement shall be sent to such
party by registered airmail (except that registered or certified mail may be
used where delivery is in the same country as mailing), postage prepaid,
addressed to it at its address set forth below, or to such other address as it
shall designate by written notice given to the other party, and shall be deemed
to have been made or given on the date of mailing. The addresses are as follows:
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8.1.1 For IBM,
IBM Director of Licensing
International Business Machines Corporation
000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
8.1.2 For STAC,
Xxxx Xxxxxx, Vice President
STAC Electronics, Inc
0000 Xxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
with copies to:
Xxxx Xxxx, President
STAC Electronics, Inc
0000 Xxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
and
Xxxxxx Xxxxxxxxx, Esq.
IRELL & XXXXXXX
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, XX
00000-0000
Section 9. Assignments
9.1 Neither party shall assign, or grant any right in conflict with the
rights granted under this Agreement under, any of its patents, or the
applications therefor, which qualify as Licensed Patents, or any of its patents
or the applications therefor or rights which are subject to the other party's
rights pursuant to Section 5, unless such assignment or grant is made subject to
the terms and conditions of this Agreement. Subject to the provisions of Section
3, neither party shall assign under any circumstances any of its rights or
privileges hereunder without
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the prior written consent of the other party, such consent not to be
unreasonably withheld. Notwithstanding the foregoing, each party may withhold
its consent for any reason in the event the other party attempts to sell,
barter, trade, or otherwise assign in gross its rights under this Agreement or
if the other party is in bankruptcy. Any attempted assignment in derogation of
the foregoing shall be void, ab initio. In the event that either party consents
to an assignment of the other's rights under this Agreement, such assigned
rights shall be limited in scope similar to the limitations set forth in
Sections 6.2.2 and 6.2.2.1 relating to acquisition, i.e. to products of the same
type and with an annual sales limit as specified in Section 6.2.2.1
The parties recognize that the terms of this Agreement reflect the unique patent
licensing needs of the parties hereto, including, but not limited to, the scope
of the license, the definition of the STAC Licensed Products and IBM Licensed
Products and the projected needs under each other's patents. Therefore, the
parties hereto acknowledge that this Agreement is personal to each of them and
is not assumable or assignable by either party in bankruptcy without the consent
of the other (Bankruptcy Code Section 365(c)(1)).
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Section 10. Know-How and Trade Secrets
10.1 No license or other right is granted herein to either party, directly or
by implication, estoppel or otherwise, with respect to any trade secrets or
know-how, and no such license or other right shall arise from the consummation
of this Agreement or from any acts, statements or dealings leading to such
consummation. Except as specifically provided herein, neither party is required
hereunder to furnish or disclose to the other any technical or other
information.
Section 11. Applicable Law
11.1 This Agreement shall be construed, and the legal relations between the
parties hereto shall be determined, in accordance with the law of the State of
New York.
Section 12. Miscellaneous
12.1 Nothing contained in this Agreement shall be construed as a warranty or
representation by either party as to the validity or scope of any of its
Licensed Patents and either party is free to contest in any proceeding said
validity or scope.
12.2 Nothing contained in this Agreement shall be construed as conferring any
right to use in advertising, publicity, or other promotional activities any
name, trade name, trademark, or other
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designation of either party hereto (including any contraction, abbreviation or
simulation of any of the foregoing); and each party hereto agrees not to use or
refer to this Agreement or any provision thereof in any promotional activity
associated with apparatus licensed hereunder, without the express written
approval of the other party.
12.3 Nothing contained in this Agreement shall be construed as conferring on
either party any license or other right to copy the exterior design of the
products of the other party.
12.4 Nothing contained in this Agreement shall be construed as conferring any
rights by implication, estoppel or otherwise, to or under copyrights or mask
work or similar rights, or with respect to IHS Programs under any form of
statutory protection now existing or hereafter enacted, in any country or
countries, wherein the copying of an IHS Program is a requisite of infringement
under such form of protection.
12.5 Nothing contained in this Agreement shall be construed as limiting the
rights which the parties have outside the scope of the licenses granted
hereunder, or restricting the right of either party or any of its Subsidiaries
to make, have made, use,
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lease, sell or otherwise dispose of any particular product or products not
herein licensed.
12.6 Each party shall, upon request from the other party sufficiently
identifying any patent or patent application, inform the other party as to the
extent to which said patent is subject to the licenses and rights granted
hereunder. If such licenses or rights under said patent or patent application
are restricted in scope, copies of all pertinent provisions of any contract or
other arrangement creating such restrictions shall, upon request, be furnished
to the party making such request, unless such disclosure is prevented by such
contract, and in that event a statement of the nature of such restriction will
be provided.
12.7 Neither of the parties hereto, nor any of their respective Subsidiaries
shall be required hereunder to file any patent application, or to secure any
patent or patent rights, or to maintain any patent in force, or to provide
copies of patent applications to the other party or its Subsidiaries, or to
disclose any inventions described or claimed in such patent applications.
12.8 Neither party shall have any obligation hereunder to institute any
action or suit against third parties for
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infringement of any of its Licensed Patents or to defend any action or suit
brought by a third party which challenges or concerns the validity of any of its
Licensed Patents. In addition, neither party shall have any right to institute
any action or suit against third parties for infringement of any of the other
party's Licensed Patents.
12.9 Licensed Products leased, sold or otherwise transferred by a party
hereto or its sublicensed Subsidiary shall be considered to be licensed under
any Licensed Patent which at any time covers such Licensed Products,
notwithstanding that the Licensed Product has been re-leased, re-sold or
re-transferred by any entity in the same or another country.
12.10 This Agreement will not be binding upon the parties until it has been
signed hereinbelow by or on behalf of each party, in which event it shall be
effective as of the date first above written. No amendment or modification
hereof shall be valid or binding upon the parties unless made in writing and
signed as aforesaid. This Agreement and any other agreements specifically
referred to herein embody the entire understanding of the parties with respect
to the subject matter hereof and merges all prior discussions between them, and
neither of the parties shall be bound by any conditions, definitions,
warranties, understandings
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or representations with respect to the subject matter hereof other than as
expressly provided herein.
12.11 If any Section of this Agreement is found by competent authority to be
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such Section in every other respect and the
remainder of this Agreement shall continue in effect so long as the Agreement
still expresses the intent of the parties. If the intent of the parties cannot
be preserved, this Agreement shall be either renegotiated or terminated.
12.12 Both parties to this Agreement recognize that, for the term of the
licenses granted hereunder, there are continuing licensing obligations on the
part of both parties. They therefore acknowledge that, upon the filing of a
bankruptcy petition naming either party to this Agreement as the debtor, this
Agreement is and shall remain an executory contract under Section 365 of the
Bankruptcy Code.
12.13 The headings of the several Sections are inserted for convenience of
reference only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly signed as of the date first above written.
INTERNATIONAL BUSINESS
MACHINES CORPORATION
Witness: /s/ XXXXXXX X. XXXXX By /s/ X.X. XXXXXX, JR.
------------------------- -------------------------------
Xxxxxxx X. Xxxxx X.X. Xxxxxx, Xx.
Vice President
STAC ELECTRONICS, INC.
Witness: /s/ XXXX X. XXXXXX By /s/ XXXX XXXX
------------------------- -------------------------------
Xxxx X. Xxxxxx Xxxx Xxxx
V.P. Finance & Operations President
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly signed as of the date first above written.
INTERNATIONAL BUSINESS
MACHINES CORPORATION
Witness: /s/ XXXXXXX X. XXXXX By /s/ X.X. XXXXXX, JR.
------------------------- -------------------------------
Xxxxxxx X. Xxxxx X.X. Xxxxxx, Xx.
Vice President
STAC ELECTRONICS, INC.
Witness: /s/ XXXXXX XXXXXXX By /s/ XXXX XXXX
------------------------- -------------------------------
Xxxxxx Xxxxxxx Xxxx Xxxx
President
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