CONFIDENTIAL TREATMENT REQUESTED: INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND IS NOTED WITH “[REDACTED].” AN UNREDACTED VERSION OF THIS DOCUMENT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION....
CONFIDENTIAL
TREATMENT REQUESTED: INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED IS OMITTED AND IS NOTED WITH “[REDACTED].” AN UNREDACTED VERSION OF
THIS DOCUMENT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
AMENDMENT
NO. 30
TO
THE
POSTSCRIPT
SOFTWARE DEVELOPMENT LICENSE
AND
SUBLICENSE AGREEMENT
BETWEEN
ADOBE
SYSTEMS INCORPORATED
AND
PEERLESS
SYSTEMS CORPORATION
Effective
as of June 30, 2008
This
Amendment No. 30 (the “Amendment”) to the PostScript Software Development
License and Sublicense Agreement dated July 23, 1999, as previously amended
(the
“Agreement”), is between Adobe Systems Incorporated, a Delaware corporation
having a place of business at 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 (“Adobe”) and
Peerless Systems Corporation, a Delaware corporation having a place of business
at 0000 Xxxxxxxxx Xxxxxx, Xx Xxxxxxx, Xxxxxxxxxx 00000
(“Peerless”).
WHEREAS,
Adobe and Peerless wish to have Peerless receive Maintenance for the Reference
Ports and CPSI Platforms, as described in the Agreement and any relevant
exhibits thereto, from Adobe, for a fixed fee, in lieu of the license fees
and
annual maintenance fee requirements currently set forth in Paragraph
8.1
of the
Agreement, thereby having Adobe waive license fees and any annual maintenance
fee requirements as of January 1, 2008 and for the remainder of the Agreement;
and
WHEREAS,
Adobe and Peerless wish to extend the Wind-down Period contemplated in
Exhibit
B
of the
Agreement (“Minimum Terms of Peerless OEM Agreements”) to a maximum of 21 months
following expiration of the Agreement.
The
parties hereby amend the Agreement as follows:
1. Paragraph
8.1
(“License and Maintenance Fees”) of the Agreement is hereby deleted and replaced
with the following:
“8.1
License and Maintenance Fees.
In lieu
of any prior license fees for the Adobe Information, as may have been specified
in the applicable Adobe Deliverables Appendix, and any prior annual maintenance
fees that may have been in place between the parties to cover maintenance
services (“Maintenance”) for the relevant Reference Port and for a CPSI
Platform, as described in Exhibit
K
(“Maintenance for Standard Reference Port(s)”) and Exhibit
K-1
(“CPSI
Continuing Support”), respectively, hereto, which Adobe agrees to waive,
Peerless shall pay to Adobe the fixed maintenance and services fee set forth
in
the amended Paragraph
2
(“Fixed
Maintenance And Services Fee”) of Exhibit
O
(“Royalty Payments And Other Fees”) of the Agreement, in accordance with the
terms contained therein.”
2. Paragraph
12.5
(“Expiration – No Renewal”) of the Agreement is hereby deleted and replaced
with the following:
CONFIDENTIAL
TREATMENT REQUESTED: INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED IS OMITTED AND IS NOTED WITH “[REDACTED].” AN UNREDACTED VERSION OF
THIS DOCUMENT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
“12.5
Expiration – No Renewal. In
the
event this Agreement is allowed to expire at the end of the initial or renewed
term, Peerless’ rights under Paragraph 2.2 (“Adobe Information Sublicenses”)
with respect to sublicensing the use of Adobe Information to an OEM Customer
under an existing Peerless OEM Agreement shall continue for Licensed System
products that have already been certified pursuant to an executed Licensed
System Appendix for the commercial life of such Licensed Systems. In addition,
Peerless’ rights to sublicense to such OEM Customers the use of Adobe
Information for developing new Licensed System products shall be permitted
as
follows, contingent also upon Paragraph
1.3.2.1
(“Termination or Expiration of the Adobe Agreement”) of Section
1
(“Contract Obligations”) of Exhibit
B
(“Minimum Terms of Peerless OEM Agreements”) of the Agreement, as well as any
other relevant provisions contained in such Exhibit
B:
(a)
Licensed System products which Peerless can demonstrate to Adobe’s reasonable
satisfaction are derivatives of previously certified Licensed System products
or
follow-on products (i.e. products similar to previously developed Licensed
System products which capitalize on the OEM Customer’s earlier development
effort and use the same Peerless SDK) may be developed; and (b) Licensed System
products which are under development and covered by an executed Licensed System
Appendix at expiration, or are in the proposal stage, as documented by Peerless
to Adobe’s reasonable satisfaction, and on which development has not yet begun
may be developed. Other than as expressly set forth above, Peerless shall have
no rights to sublicense the use of Adobe Information after the expiration of
this Agreement. In the event of such expiration, Peerless’ obligations
hereunder, including but not limited to its obligation to maintain and support
existing Licensed Systems, and make royalty and other payments to Adobe with
regard to such Licensed Systems, shall continue in full force and effect. When
an OEM Customer’s right to use the Adobe Information ends, as described herein,
Peerless shall require that OEM Customer provide to Peerless within thirty
(30)
days of termination a certificate in writing acknowledging that OEM Customer
has
complied with its obligations to return or destroy all Adobe Information in
its
possession.”
3. Paragraph
2
(“Maintenance Fees For Standard Reference Port(s)”) of Exhibit
O
(“Royalty Payments And Other Fees”) of the Agreement is hereby deleted and
replaced with the following:
“2.
Fixed Maintenance And Services Fee. The
fixed
maintenance and services fee (“Fixed Maintenance and Services Fee”) for
Maintenance to be supplied by Adobe for the period from January 1, 2008 through
the Wind-down Period set forth in Paragraph 1.3.2.1 of Exhibit B (“Maintenance
and Services Period”) shall be [REDACTED].
This
Fixed Maintenance and Services Fee shall be paid by Peerless in seven
installments as follows: (i) an amount of [REDACTED] shall be paid on or before
July 15, 2008; and (ii)six equal payments in the amount of [REDACTED]
shall be
paid on or before each of the following dates (1) October 15, 2008, (2) January
15, 2009, (3) April 15, 2009, (4) July 15, 2009, (5) October 15, 2009 and (6)
January 15, 2010. For the avoidance of doubt, such Maintenance during the
Maintenance and Services Period shall include Peerless’ right to access and use
Adobe Information to support OEM Customers, and Adobe’s continued support to
Peerless as specified in Exhibit K (“Maintenance for Standard Reference
Port(s)”) and Exhibit K-1 (“CPSI Continuing Support”) of the Agreement.”
CONFIDENTIAL
TREATMENT REQUESTED: INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED IS OMITTED AND IS NOTED WITH “[REDACTED].” AN UNREDACTED VERSION OF
THIS DOCUMENT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
4. Paragraph
1.3.2.1
(“Termination or Expiration of the Adobe Agreement”) of Section
1
(“Contract Obligations”) of Exhibit
B
(“Minimum Terms of Peerless OEM Agreements”) of the Agreement is hereby deleted
and replaced with the following:
“1.3.2.1
Wind-down Period. Upon
expiration or early termination of this Agreement, OEM Customer’s rights under
this Agreement with respect to use of the Adobe Information shall continue
during the Wind-down Period (as defined below), solely to the extent required
to
allow OEM Customer to continue shipping already certified Licensed System
products, Licensed Systems which are derivatives of previously certified
Licensed Systems or follow-on products (i.e., products similar to previously
developed Licensed System products which capitalize on the OEM Customers’
earlier development effort and use the same Peerless SDK), and to allow the
continued development of future Licensed Systems that were already in a proposal
stage or development prior to the start of the Wind-down Period. Other than
as
expressly set forth above, OEM Customer shall have no right to continue using
Adobe Information after the termination or expiration date, as the same had
been
sublicensed by Peerless to such OEM Customer. For the purposes of this
Agreement, the “Wind-down Period” shall be a period of twenty one (21) months
from the date of expiration or early termination of this
Agreement.”
5. All
other
terms and conditions of the Agreement shall remain in full force and
effect.
IN
WITNESS WHEREOF, each of Adobe and Peerless has executed this Amendment No.
30
to the Agreement by its duly authorized officers.
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