EXHIBIT 10.54
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
SECOND AMENDMENT TO PARTNER AGREEMENT
THIS IS AN AMENDMENT (THE "AMENDMENT NO.2") OF THE FIRST VIRTUAL
COMMUNICATIONS PARTNER AGREEMENT (the "AGREEMENT"), made and entered into as of
the 1st day of April 2002 and amended as of the 31st day of July 2002, by and
between FIRST VIRTUAL COMMUNICATIONS, INC. ("FVC"), a Delaware corporation with
its principal place of business at 0000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx Xxxx,
XX 00000, XXX; and NET ONE SYSTEMS CO., LTD. ("NET ONE"), a Japanese corporation
with its principal place of business at Sphere Tower Tennoz, 2-8, Higashi
Xxxxxxxxx 0-Xxxxx, Xxxxxxxxx-Xx, Xxxxx 000-0000, Xxxxx.
In consideration of the mutual covenants and agreement contained
herein, the sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. This Amendment No.2 becomes effective as of the 30th day of
September 2003 ("Amendment No.2 Effective Date").
2. The following language in Section 3.0 of the Agreement is
hereby amended and replaced with the following:
TERM. This Agreement shall commence on the Effective Date, and
shall continue for a five (5) year period unless otherwise
terminated earlier as provided in Section 13 (the "TERM").
Upon completion of the first and third years of the Term of
this Agreement, the parties may re-evaluate the terms of this
Agreement, in light of the relationship between the parties,
and if the parties mutually agree to any changes to such terms
and conditions, the parties shall execute a written amendment
hereto.
3. The following sentence in Section 5.1 of the Agreement is
hereby deleted:
Partner may also be eligible to receive marketing co-op funds,
in accordance with the guidelines set forth in Exhibit F.
4. The following language in Section 6.1 of the Agreement is
hereby amended and replaced with the following:
PURCHASE TARGETS. Partner agrees to sell and support the
complete line of FVC's rich media web conferencing products
and services. Partner will use commercially reasonable efforts
to meet the purchase targets set forth in Exhibit A.
5. Exhibit A (Sales Commitment and Discounts) of the Agreement is
hereby amended and replaced with Exhibit A (Sales Targets and
Discounts) attached to this Amendment No.2.
6. Exhibit F (Terms of Inventory for Equity Exchange) attached to
this Amendment No.2 shall be added and incorporated to the
Agreement in its entirety.
7. Except as expressly amended in the foregoing Sections 2, 3, 4,
5, 6 and 7 of this Amendment No.2, the Agreement is hereby
confirmed and ratified in all respects.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered as of the date above.
FIRST VIRTUAL COMMUNICATIONS, INC. NET ONE SYSTEMS CO., LTD.
By: /s/ Xxxxxx Xxxx By: /s/ Xxxxx Xxxx
------------------------------------- -----------------------------
Name: Xxxxxx Xxxx Name: Xxxxx Xxxx
Title: Vice President/CFO Title: President & CEO
Date: October 6, 2003 Date: October 3, 2003
EXHIBIT A
SALES TARGETS AND DISCOUNTS
Partner will use commercially reasonable efforts to meet the following purchase
targets:
Year 3: April 1, 2004 - March 31, 2005 = [***]
Year 4: April 1, 2005 - March 31, 2006 = [***]
Year 5: April 1, 2006 - March 31, 2007 = To be mutually agreed between the
parties.
DISCOUNT LEVELS:
FVC offers the following product discounts from its published Book Price at the
time of order. From time to time, FVC reserves the right to add new products to
this Discount Schedule or to adjust prices relative to market conditions and
dynamics.
PRODUCT VOLUME DISCOUNT
SOFTWARE LICENSES, UPGRADES AND OPTIONS [***]
SOFTWARE SUBSCRIPTION AND SUPPORT [***]
DISCOUNT LEVELS [***]:
[***] shall mean [***] to [***] for the [***] and [***] and [***], i.e. [***]
and [***]. On [***] of [***], [***] will [***] with [***] of [***] to [***],
such [***] to be [***].
SUPPORT SERVICES
During the Term, Partner shall pay [***] of the post-discount Product price of
products purchased during each year of the Term, on a product by-product basis
for all products purchased during such year, within thirty (30) days after the
beginning date of each succeeding year.
[*] = CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT F
TERMS OF INVENTORY FOR EQUITY EXCHANGE
Notwithstanding the provisions of the Agreement, the following shall apply:
Inventory Return
1. Net One agrees to return a minimum of $1.5 million of its existing FVC
product inventory to FVC ("RETURNED INVENTORY") pursuant to the terms of an
Equity Investment Agreement as of Amendment No.2 Effective Date. In
consideration of the above mentioned product, FVC will issue Net One shares
of FVC common stock in the amount to be determined by dividing the value of
Returned Inventory by the average closing price of FVC common stock for the
thirty (30) days prior to Amendment No.2 Effective Date, as reported on the
Nasdaq SmallCap. The FVC issued shares will not be registered shares. FVC
shall use its best efforts to register such issued shares to Net One in a
prompt and timely manner.
2. Returned Inventory shall be valued at the price of the product and support
service originally paid FVC by Net One subject to Exhibit A. Returned
inventory may include any Click to Meet software purchased from FVC and up
to 37 Compaq servers and up to 37 each of the additional processor boards,
memory boards and non-FVC software applications bundled with the servers.
All components of Returned Inventory must be returned to FVC by October 3,
2003
The then-current representative of FVC Japan (Xx. Xxxxxxxx Xxxxx is
designated by FVC on Amendment No.2 Effective Date) shall accept such
return at Net One's offices in Japan. Net One agrees to provide storage
space for Returned Inventory for up to ninety (90) days from Amendment No.2
Effective Date at no charge to FVC. Thereafter Net One may dispose of the
remaining FVC products of Returned Inventory at its own expense. If FVC
solely determines that the server hardware requires to be returned to its
California location, Net One agrees to pay the freight costs of such
shipment.
Inventory Exchange
For the balance of Net One's FVC Product inventory not sold by Net One by the
time of Amendment No.2 Effective Date, excluding any remaining server hardware,
("REMAINING INVENTORY") Net One may either return or dispose at its own expense
such stock as previously outlined for full credit, with such credit applied to
new purchases of software licenses and software subscriptions from the current
FVC US Price List. Remaining Inventory returns will be valued at the price
originally paid by Net One. New products ordered in exchange for Remaining
Inventory returned product will be valued at current US list price, reduced by
the following discounts:
- [***]
- [***]
For the purpose of clarification, FVC shall provide support service for the new
products [***] NetOne.
This right of exchange for Remaining Inventory shall terminate on March 31,
2004.
[*]= CONFIDENTIAL TREATMENT REQUESTED
