EXHIBIT 10.1.2
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED PROVISIONS OF
THIS AGREEMENT. THE REDACTED PROVISIONS ARE IDENTIFIED BY AN ASTERISK AND
ENCLOSED BY BRACKETS. THE CONFIDENTIAL PORTIONS HAVE BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
________________________________________________________________________________
Amendment No. 2 to the Master Software License and Distribution Agreement
(Contract No. 220-00-0134)
between Cellco Partnership (d/b/a Verizon Wireless)
and
Smith Micro Software, Inc.
________________________________________________________________________________
CONTRACT NO. 750-33576-2001
AMENDMENT NO. 2 TO THE
MASTER SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT
(CONTRACT NO. 220-00-0134) BETWEEN
CELLCO PARTNERSHIP, A DELAWARE GENERAL PARTNERSHIP D/B/A VERIZON WIRELESS
AND
SMITH MICRO SOFTWARE, INC.
THIS AMENDMENT NO. 2 ("AMENDMENT") amends the Master Software License and
Distribution Agreement ("Agreement") between Cellco Partnership, a Delaware
general partnership d/b/a Verizon Wireless ("Verizon Wireless") on behalf of
itself and for the benefit of its Affiliates and Smith Micro Software, Inc.
("SMSI"). This Amendment shall be effective on March 31, 2003 (the "Effective
Date"), unless terminated in accordance with the Agreement (Termination).
WHEREAS, Verizon Wireless and SMSI entered into a Master Software License and
Distribution Agreement dated December 1,2000; and
WHEREAS, Verizon Wireless and SMSI now desire to amend the Agreement to include
additional project(s) as set forth herein.
NOW, THEREFORE, in consideration of the foregoing promises, and for other good
and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, SMSI agrees [*] to add 1xRTT/802.11(WiFi) combination
functionality in accordance with the provisions set forth herein and on Schedule
A1, attached hereto and incorporated herein. The work to be performed hereunder
is within SMSI's planned development of the Software under Section 2.2 of the
Agreement. In addition, SMSI shall license to Verizon Wireless, QuickLink(R)
Mobile Phonebook software in accordance with the provisions set forth on
Schedule A-2, attached hereto and incorporated herein.
1. This Amendment is an integral part of the Agreement. The terms
used herein which are defined or specified in the Agreement shall
have the meanings set forth in the Agreement. If there are any
inconsistencies between the provisions of this Amendment and the
provisions of the Agreement, the provisions of this Amendment
shall control.
2. Section 1.1, Definitions, shall be deleted in its entirety and
replaced with the following:
"1.1 Definitions
a. "Affiliate" means any entity that controls, is
controlled by, or is under common control with
Verizon Wireless.
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* Confidential Treatment has been requested for certain redacted provisions of
this agreement. The redacted provisions are identified by an asterisk and
enclosed by brackets. The confidential portions have been filed separately with
the Securities and Exchange Commission.
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b. "Agreement" refers to this Master Software
License and Maintenance Agreement.
c. "Combination Client" means the software
product which shall enable Verizon Wireless end-users
to access both the Verizon Wireless 1xRTT and Verizon
Wireless WiFi networks. Such Combination Client shall
also contain the Hot Spot Directory and shall support
any 1xRTT or 802.11 capable hardware device supported
by Verizon Wireless.
d. "Distributed" shall mean copies of the
software shipped or downloaded.
e. "Final Software" shall mean, for purposes of
sections 3.3 and 3.4 of the Agreement, the software
product which exists at the moment or time of
expiration or termination of this Agreement.
f. "Hot Spot Directory" means the listing of all
WiFi access points available for access by all
Verizon Wireless subscribers.
g. "Order" refers to a written order from Verizon
Wireless for the license from SMSI of the Single
Client or the Combination Client and/or purchase of
Related Services.
h. "Outstanding Order" refers to an Order for
which license to the Single Client or the Combination
Client described therein or for which any Related
Service described therein has not been accepted.
i. "Party" refers to either Verizon Wireless or
SMSI, as the context requires; both Verizon Wireless
and SMSI may be collectively referred to as the
"Parties."
j. "QuickLink Phone Book refers to SMSI's
QuickLink Phone Book software program.
k. "Related Services" means those services such
as technical support, training, and [*] which SMSI
will provide to Verizon Wireless hereunder. Those
Related Services which will be provided by SMSI and
the charges therefore, if any, are set forth on
Schedules A, A-1, A-2 and B, attached hereto and
incorporated herein by reference.
l. "Single Client" refers to the previously
developed software product which enables Verizon
Wireless subscribers to access the Verizon Wireless
1xRTT
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* Confidential Treatment has been requested for certain redacted provisions of
this agreement. The redacted provisions are identified by an asterisk and
enclosed by brackets. The confidential portions have been filed separately with
the Securities and Exchange Commission.
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network.
m. "Software" refers to the computer program and
applications, available hereunder as described in
Schedules A, A-1 and A-2, and includes all related
documentation and manuals.
n. "1xRTT" means Single Carrier (lx) Radio
Transmission Technology. It is a Third Generation
(3G) wireless technology for the CDMA platform that
has the capability of speeds up to one hundred
forty-four (144) kbps. For terms of this Agreement,
1xRTT may also be referred to as "Wireless Wide Area
Network (WWAN)" or "Express Network."
o. "802.1l/WiFi" means Wireless Fidelity and
generically applies to all 802.11 networks, 802.11
networks provide high speed access to subscribers in
specific HotSpot locations (Access Points). The terms
802.11 and WiFi are synonymous.
[*]
4. The following shall be added as Section 3.3 of the Agreement:
3.3 In the event the Agreement is terminated as a result of:
(1) a material default of SMSI which has not been cured: or;
(2) because SMSJ unilaterally chooses not to renew this
Agreement:
3.3.1 SMSI shall grant to Verizon Wireless, subject to the
terms and conditions of this Agreement, for the
balance of the then current term and, at Verizon
Wireless' option, for one (1) additional one (1) year
term beyond termination or expiration of the
Agreement, an irrevocable, non-exclusive,
non-transferable (except to a parent or Affiliate of
Verizon Wireless), limited license to use all
previously licensed copies of the Final Software
acquired under this Agreement.
3.3.2 Provided Verizon Wireless continues to pay the
license fees to acquire new licenses to use the
Combination Client and the QuickLink(R) Mobile
Phonebook software, SMSI shall grant to Verizon
Wireless, subject to the terms and conditions of this
Agreement, at Verizon Wireless' option, for five (5)
years, the irrevocable, non-exclusive,
non-transferable (except to a parent or Affiliate of
Verizon Wireless), limited right to manufacture or
have manufactured, enhance or have enhanced, market
and distribute the Final Software, and the
QuickLink(R) Mobile Phonebook software to
distributors, re-sellers, OEM customers of Verizon
Wireless, subscribers of Verizon Wireless and
end-users.
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* Confidential Treatment has been requested for certain redacted provisions of
this agreement. The redacted provisions are identified by an asterisk and
enclosed by brackets. The confidential portions have been filed separately with
the Securities and Exchange Commission.
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[*]
5. The following shall be added as Section 3.4 of the Agreement:
3.4 In the event Verizon Wireless chooses not to renew the
Agreement and therefore causes the Agreement to terminate:
3.4.1 SMSI shall grant to Verizon Wireless, subject to the
terms and conditions of this Agreement, for one (1)
additional one (1) year term, an irrevocable,
non-exclusive, non-transferable (except to a parent
or Affiliate of Verizon Wireless), limited license to
use all previously licensed copies of the Final
Software acquired under this Agreement.
3.4.2 Provided Verizon Wireless continues to pay the
license fees to acquire new licenses to use the Final
Software and the QuickLink(R) Mobile Phonebook
software, SMSI shall grant to Verizon Wireless,
subject to the terms and conditions of this
Agreement, for one (1) additional one (1) year term,
the irrevocable, non-exclusive, non-transferable
(except to a parent or Affiliate of Verizon
Wireless), limited right to manufacture or have
manufactured, market and distribute the Final
Software, and the QuickLink(R) Mobile Phonebook
software to distributors, re-sellers, OEM customers
of Verizon Wireless, subscribers of Verizon Wireless
and end-users.
6. Section 5.1 License Fees, shall be deleted in its entirety and
replaced with the following:
"5.1 License Fees.
[*]
c. SMSI may suspend its performance under this Agreement if any
payment by Verizon Wireless [*] is past due, sixty (60) days
from receipt of written notice to Verizon Wireless that such
payment is past due.
7. Survival. Obligations and rights in connection with this Agreement
which by their nature would continue beyond the Termination or
expiration of this Agreement, including, without limitation, those in
Sections II, 3.2, 3.3, 3.4, 5.1, VIII, IX, X and XIII will survive the
Termination or expiration of this Agreement.
8. Schedule A, Software and Related Services - Description and Price List
shall be renamed to
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* Confidential Treatment has been requested for certain redacted provisions of
this agreement. The redacted provisions are identified by an asterisk and
enclosed by brackets. The confidential portions have been filed separately with
the Securities and Exchange Commission.
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"Schedule A, Single Client and Related Services -- Description and
Pricing."
9. Schedule A-1, Combination Client and Related Services - Description
and Pricing, shall be added to the Agreement in the form attached
hereto.
10. Schedule A-2, QuickLink(R) Mobile Phonebook software and Related
Services --Description and Pricing, shall be added to the Agreement in
the form attached hereto.
11. Except as specifically provided hereunder, the terms and conditions of
the Agreement shall remain in full force and effect as set forth
therein.
IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to
be executed by their duly authorized officers or representatives.
CELLCO PARTNERSHIP Smith Micro Software, Inc
d/b/a Verizon Wireless
By: /s/ Ted L. Hoffman By: /s/ William W. Smith Jr.
Name: Ted L. Hoffman Name: William W. Smith Jr.
Title: Staff VP - Technical Development Title: CEO/President
Date: 6/24/03 Date: June 19, 2003
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SCHEDULE A-1
COMBINATION CLIENT AND RELATED SERVICES - DESCRIPTION AND PRICING
1. SOFTWARE DESCRIPTION
2. SOFTWARE DESCRIPTION: Verizon Wireless currently offers 1xRTT
(Express Network) service access through the Single Client which is
available on a CD and included in the QuickLink Mobile Office data kit.
The Combination Client being developed under this Amendment will
enhance the Single Client to provide access to the 802.11 (WiFi)
network. WiFi is synonymous with 802.11.
The Combination Client will search for and display available 1xRTT
(Express Network) or 802.11 (WiFi) networks and provide a "user
friendly" method to access those networks. The Combination Client can
be enabled with access to both the 1xRTT and 802.11 (WiFi) networks or
enabled for access to "1xRTT only" or "WiFi only". Both 1xRTT and
802.11 (WiFi) are industry standard high speed networks.
This enhancement will provide the end user easy access to the 802.11
(WiFi) network through a client.
[*]
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* Confidential Treatment has been requested for certain redacted provisions of
this agreement. The redacted provisions are identified by an asterisk and
enclosed by brackets. The confidential portions have been filed separately with
the Securities and Exchange Commission.
6
SCHEDULE A-2
QUICKLINK(R) MOBILE PHONEBOOK SOFTWARE AND RELATED SERVICES - DESCRIPTION AND
PRICING
1. SOFTWARE NAME: QuickLink(R) Mobile Phonebook
2. SOFTWARE DESCRIPTION: This software will provide advanced phone book
capabilities to Verizon Wireless end-users. QuickLink(R) Mobile
Phonebook is an easy to use application that lets the user manage their
wireless handset's phone book on their computer. Users can edit, delete
and add new entries using a PC keyboard. When the user is done they can
update their cell phone with the new information. It also allows
importing of entries from Outlook, Outlook Express, ACT, Goldmine and
any other csv format text file. Users can also export their phonebook
directly to Outlook or to a csv format text file. The phonebook can
also be saved as a file on the PC for backup or distribution purposes.
In order to ease the management and organization of entries in the cell
phone, the application also provides features like sorting and moving
of entries from one location to another through simple drag and drop
techniques.
[*]
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* Confidential Treatment has been requested for certain redacted provisions of
this agreement. The redacted provisions are identified by an asterisk and
enclosed by brackets. The confidential portions have been filed separately with
the Securities and Exchange Commission.
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