EXHIBIT 10.4.8
EIGHTH AMENDMENT TO NETOBJECT LICENSE AGREEMENT
Agreement Number: L97063
This is the Eighth Amendment, effective September 18, 1998, to the NetObjects
License Agreement Number L97063 dated March 18, 1997 as amended ("Agreement")
between NetObjects, Inc. with an address at 000 Xxxxxxxxx Xxxxx, Xxxxxxx Xxxx,
Xxxxxxxxxx 00000 ("NetObjects") and International Business Machines Corporation
with an address at Xxxxx 000, Xxxxxx, Xxx Xxxx 00000 ("IBM"). All capitalized
terms and definitions used in the Amendment and not otherwise defined herein
shall have the meanings give them in the Agreement.
In consideration of the covenants and agreements contained herein, the parties
hereto agree to amend the Agreement as follows:
1. Section 12.3.1 of the Agreement (added thereto in Amendment Number 6) is
hereby deleted in its entirety and replaced with the following:
In consideration for the services performed by NetObjects to develop
the Websphere Deliverables, NetObjects shall xxxx IBM an amount equal
to NetObjects' reasonable and actual time (i.e., employee hours) and
materials (e.g., software development tools, reasonable overhead) cost
expended prior to February 28, 1999 in the development of the
WebSphere Deliverables ("Development Costs") plus five percent of the
Development costs (collectively the "IBM Payment"), provided that the
maximum IBM Payment is five million, two-hundred and fifty thousand
dollars ($5,250,000). NetObjects shall maintain detailed records
according to generally accepted accounting principles to support the
amount of the Development Costs.
2. The dollar amount (i.e., $6,000,000) in Section 12.3.2 of the Agreement
(added thereto in Amendment Number 6) is hereby deleted and replaced with
the dollar amount $5,250,000.
3. Section 12.3.3 of the Agreement (added thereto in Amendment No. 6) is
hereby deleted in its entirety and replaced with the following:
Between the Acceptance of the WebSphere Deliverables (as defined
below) and March 30, 1999, on a quarterly basis, NetObjects will
provide IBM a detailed summary of the Development Costs incurred. The
IBM Payment is to be applied against prepaid royalties made by IBM in
accordance with Section 5 of Exhibit B to the Agreement (i.e., on a
quarterly basis, NetObjects is to deduct the amount of the IBM Payment
from the balance of the IBM prepaid royalties which have not yet been
credited against royalties for the Licensed Work). If the balance of
royalties that have been prepaid by IBM in accordance with Section 5
of Exhibit B to the Agreement have been fully credited against
royalties and payments for the Licensed Work in accordance with the
Agreement before all of the quarterly bills have been submitted to IBM
in accordance with Section 12.3.1, and all of the quarterly bills have
been submitted to IBM prior to March 30, 1999, then IBM will
pay the quarterly xxxx within thirty (30) days from the date of IBM's
receipt of an acceptable invoice.
4. The first two sentences in Section 12.3.5 of the Agreement (added thereto
in Amendment Number 6) are hereby deleted in their entirety and replaced
with the following:
The Royalty Rate for the WebSphere Version will be fifty percent
(50%) of the Royalty Rate for the Licensed Work set forth in
Exhibit B of the Agreement instead of the Royalty Rate set forth in
Exhibit B. (e.g., For a Hard Bundle where the WebSphere Version
constitutes the Licensed Work, the Royalty Rate will be 18.5% of ASP
of the applicable Licensed Work, Fusion or TeamFusion.)
5. The second Section 12.3.5 of the Agreement (added thereto on page three of
Amendment Number 6) shall not be modified in any way by this Amendment
Number 8, but shall be renumbered as Section 12.3.6.
6. The following shall be added to Exhibit 1 to Amendment Number 6 to the
Agreement, (the Statement of Work), as Section 7:
NetObjects will complete the engineering work for the first phase of
abstracting the NetObjects Authoring Server Suite such that it will
integrate with IBM Universal Database instead of Sybase SQL Anywhere. This
first phase entails only engineering coding to modify or extend portions of
the NetObjects Authoring Server Suite software and does not include testing
and meeting product release criteria. In addition, the first phase does not
include modifying or extending the following elements of NetObjects
Authoring Server Suite: Site Utilities, Publish, Preview, Content
Contributor. The work for the first phase will be completed no later than
January 28, 1999, and made available to IBM no later than February 28, 1999.
7. The following is hereby added as Section 12.3.7 of the Agreement:
IBM may provide NetObjects with written notice that all further development
work associated with Section 12 of the Agreement is to be terminated. Upon
receipt of such notice, NetObjects is to immediately stop all further
activites associated with Section 12 of the Agreement. NetObjects will be
paid in accordance with Section 12.3 of the Agreement for the work
performed by NetObjects in accordance with this Amendment and Exhibit 1
hereto through the date of NetObjects' receipt of IBM's notice.
The Agreement remains in full force and effect in accordance with its terms,
except as such terms have been expressly modified by the Amendment. In the event
of any conflict between the terms of the Amendment and the terms of the
Agreement, the Amendment shall control. This Amendment and the Agreement
constitute the entire understanding of the parties with respect to its subject
matter and merges and supersedes all prior
communications, understandings and agreements between the parties concerning the
subject matter hereof. This Agreement shall not be modified except in writing
subsequently dated, signed on behalf of each party by a duly authorized
representative. A copy of this Amendment by reliable means (e.g., photocopy or
facsimile) will be deemed an original.
Executed by the authorized representatives of the parties as of the date first
set forth above.
NETOBJECTS, INC INTERNATIONAL BUSINESS
MACHINES CORPORATION
By: /s/ X. Xxxxxxx By: /s/ X.X. Xxxxxxxx
------------------------ ------------------------------
Name: X. Xxxxxxx Name: X.X. Xxxxxxxx
------------------------ ------------------------------
Title: VP Finance Title: VP & Asst. General Counsel
------------------------ ------------------------------
Date: 1/28/99 Date: 1/29/99
------------------------ ------------------------------
