EXHIBIT 10.13
MASTER AGREEMENT
BETWEEN
TUT SYSTEMS INC. AND COMPAQ COMPUTER CORPORATION
This is an agreement ("Agreement" as hereinafter more fully defined) between
Compaq Computer Corporation ("Compaq" as hereinafter more fully defined) having
its principal address at 20555 S.H. 249, Houston, Texas 77070, and Tut Systems,
Inc. ("Tut" as hereinafter more fully defined) having its principal address at
2495 Estand Way, Pleasant Hill, CA, 94523-3911 with an effective date of April
21, 1998.
1. BACKGROUND.
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Compaq designs, manufactures and distributes computers for use by consumers
in various environments, including their homes, and Tut designs and
manufactures devices that connect personal computers.
Compaq and Tut desire to work together to provide devices and methods that
improve the connectivity of such computers and consumer devices.
In consideration of the mutual promises and covenants herein and for other
good and valuable consideration, Compaq and Tut agree as follows:
2. SCOPE.
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This Agreement contains the terms and conditions that will apply to various
business transactions contemplated by the parties and more fully described
herein and in various Project Statements as hereinafter more fully defined
and attached hereto.
3. ALLIANCE RESPONSIBILITIES.
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The parties' responsibilities under this Agreement include, but are not
limited to the following:
a. Technology Advisory Board. The parties shall create a Technology Advisory
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Board that shall be responsible for advising the parties, subject to
appropriate protection of confidential information, on technology trends,
current and future needs and other such technology topics as the members
may select. The board shall meet periodically during the Term of this
Agreement. The board shall consist of
i. a member from Compaq, representing a computer systems perspective,
and
ii. a member from Tut, representing a connectivity perspective, and
iii. a third member, selected by Compaq and Tut, representing a software
operating system or application perspective, and
iv. fourth and or fifth members, as required and selected by the
majority of the other members of the Technology Board.
b. Right Of First Offer. Tut shall offer first to Compaq, the opportunity to
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participate in the design, development, manufacture, distribution, and
sale of home data connectivity technology that provides connectivity
greater than [*]. Compaq shall have thirty (30) days to evaluate such
offer and respond to Tut.
In the event that Compaq elects to have home data connectivity technology
greater than [*] designed and developed by a third party, then Compaq
may, but is not obligated to, solicit such development activity from Tut.
c. Partner Pricing Or Licensing. The parties agree that in a Project
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Statement where both parties contribute to the development, the prices
paid, or license fees charged to the other party, if any, shall be less
than that charged to any other party, independent of volume, tiered
pricing, or other circumstance, other than as a joint participant in the
development of such technology. Such partner discount shall be no less
than [*]. No other PC OEM shall receive pricing or licensing terms from
Tut more advantageous than those provided to Compaq.
d. Right of First Refusal of Change of Control. During the period commencing
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on the Effective Date and ending on the earlier to occur of (1) the
closing of an underwritten initial public offering of Tut's common stock
and (2) the termination of this Agreement (the "Refusal Period"), in the
event that Tut or any officer, director, agent, representative or
affiliate which individually or together with any other Person (defined
below) or group controls Tut (each a "Control Person" and collectively,
the "Control Persons") receives an offer from any Persons set forth on
Exhibit 1 to this Agreement (each a "Specified Person" and collectively,
the "Specified Persons") to engage in an Acquisition Transaction (as
defined below), Tut shall promptly notify Compaq in writing of such offer
along with all of the material terms and conditions thereof, including,
but not limited to, the identity of the offeror, nature of the
transaction, price, nature of the consideration, and timing for closing.
During the Term of this Agreement but only so long as Compaq maintains an
equity position in Tut, Tut shall use all commercially reasonable efforts
to ensure that none of the Control Persons takes or causes or permits any
Person to take, directly or indirectly, any of the following actions with
any of the Specified Person unless such actions concurrently are
undertaken with Compaq: solicit, encourage, initiate or participate in
any negotiations, inquiries or discussions with respect to any offer or
proposal to acquire all of or any significant part of Tut's business,
assets(including its HomeRun(TM) technology ), stock or other equity
interest, whether by merger, consolidation, other business combination,
purchase of assets, tender or exchange offer or otherwise (each of the
foregoing, an "Acquisition Transaction"). If at any time during the
Refusal Period Tut (or to the extent that Tut is able to influence them,
the Control Persons) should desire to enter into or execute any agreement
with any Specified Person relating to an Acquisition Transaction, Tut (or
to the extent that the Corporation is able to influence them, the Control
Persons) shall first offer Compaq the same opportunity proposed with
respect to the Specified Person, and if Compaq agrees to substantially
the same economic terms and conditions proposed with respect to such
Specified Person within thirty three (33) days after Compaq's receipt of
written notice of such opportunity (the "Notification Period"), then Tut
(and/or each applicable Control Person) will enter into or execute such
proposed agreement with Compaq rather than the respective Specified
Person. For the purposes of this Agreement and without limitation to
"Specified Persons", the term "Person" shall mean any general
partnership, limited partnership, corporation, limited liability company,
joint venture, trust, business trust, governmental agency, cooperative
association, individual or other entity, and their heirs, executors,
administrators, legal representatives, successors and assigns of such a
Person as the context may require. For the purposes of this Section only,
Compaq's rights shall be secondary only to any similar rights that
Microsoft may have, but in no case shall Compaq's Notification Period
terminate any earlier than three (3) days later than Microsoft's.
e. Notice of Inquiry: Tut shall promptly notify Compaq when Tut receives a
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valid inquiry from any Company identified in Exhibit 2 that, in its sole
judgement may result in a Change of Control. Tut shall additionally
provide Compaq such information as may be permitted under a non-
disclosure
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [*]. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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agreement, if any, with such Company, and shall provide updates that
generally reflect the status of such inquiries.
4. DEFINITIONS.
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The capitalized terms as used within this Agreement shall have the same
meaning as ascribed to the terms below.
a. Activation - shall mean the initiation of access to a product as
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authorized by the product owner, its distributor or agent.
b. Agreement - shall mean this document, its attachments, all Project
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Statements, any schedules, attachments or addenda referred to in Project
Statements, and any amendments to the foregoing.
c. Baseline Materials - shall mean Materials described in a Project
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Statement that are used as a starting point or baseline for a development
project.
d. Change Of Control - shall be deemed to have occurred with respect to a
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party if:
(1) any person, entity or group (within the meaning of Rule 13d-5 under
the Securities Exchange Act as in effect on the date hereof) shall
come to own, directly or indirectly, beneficially or of record,
voting securities representing more than 50% of the total voting
power of such party; or
(2) such party becomes a Subsidiary of some third party.
e. Code - shall mean computer programming instructions. Unless specifically
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stated otherwise, Code shall include Software Code and Hardware Code and
any Maintenance Modifications or Enhancements thereto created from time
to time during the term of the relevant Project Statement.
(1) Software Code - shall mean computer programming instructions in
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Executable Code or Source Code forms.
(1) Executable Code - shall mean the Code that results when Source
Code is processed by a software compiler, assembler or other similar
processor into the form generally intended for the End User.
(2) Source Code - shall mean the programming instructions in all
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forms other than Executable Code including related or imbedded
comments, prologues and procedural language/code.
(2) Hardware Code - shall mean those source instructions, descriptions
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and definitions in a hardware descriptive language, for example
Verilog or VHDL, that represent the design of an ASIC or programmable
logic component including related or imbedded comments or prologues.
(3) Compaq Code, Tut Code, or Third Party Code - shall mean Code in which
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Compaq, Tut, or another, respectively owns the copyrights and other
intellectual property rights or otherwise has sufficient
authorization to grant or assert rights in such Code.
f. Compaq - shall mean Compaq Computer Corporation and its Subsidiaries.
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g. Tut- shall mean Tut Systems, Inc. and its Subsidiaries.
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h. Deliverables - shall mean any Materials which are required to be
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delivered by a party hereunder as set forth in a Project Statement.
i. Derivative Work - shall mean a work which is based upon one or more
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preexisting works, such as a revision, enhancement, modification,
translation, abridgment, condensation, expansion, or any other form in
which such a preexisting work may be recast, transformed, or adapted, and
which, if prepared without authorization of the owner of the copyright in
such preexisting work, would constitute copyright infringement under
United States law.
j. Development Environment - shall mean (1) the devices, code,
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documentation, development tools, including compilers, workbenches,
tools, build scripts, object libraries and higher-level or proprietary
languages, used or required by a party for the development, test,
maintenance, support, implementation, manufacture or distribution of any
Deliverable other than Hardware, and (2) for the Hardware, the build
scripts, make files, bond-out files and documentation required to
synthesize and produce an ASlC sign-off tape from the Hardware Code. The
components of the Development Environment shall be described and
identified by name and version. Unless otherwise provided in a Project
Statement, the Development Environment shall not include any third party
commercial libraries, tools, products or foundry proprietary libraries
necessary to produce a sign-Off tape used as part of the Development
Environment.
k. Documentation - shall mean media that relate to particular Code or
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Hardware. Unless specifically stated otherwise, Documentation shall
include any Maintenance Modifications or Enhancements to such
Documentation created from time to time during the term of the relevant
Project Statement.
l. Enhancements - shall mean changes or additions, other than Maintenance
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Modifications, to Code or Hardware and related Documentation, including
all new releases, that improve functions, add new functions, or improve
performance by changes in system design or coding.
m. Error - shall mean a statement or condition:
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(1) in Code or Hardware that is not in conformity with the functions
described in the relevant Project Statement or Documentation; or
(2) in Documentation that is not in conformity with the relevant Project
Statement or which causes a reasonably competent user to be unable to
correctly operate the Code.
n. General Availability - shall mean, with respect to a particular product,
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the date on which the product is made available for purchase by members
of the general public.
o. Hardware - shall mean computer systems, motherboards, ASICs components,
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adapter cards or other similar hardware.
p. Invention - shall mean any idea, design, concept, technique, apparatus,
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method, discovery or improvement, whether or not patentable, that is
conceived or reduced to practice by one or more of the inventing party's
employees during the term and in the performance of a Project Statement
under this Agreement.
q. Joint Invention - shall mean any idea, design, concept, technique,
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apparatus, method, discovery or improvement, whether or not patentable,
that is first conceived or reduced to practice by one or more of Tut's
employees with one or more of Compaq's employees, in the performance of a
Project Statement; provided in the case of a patentable invention that a
party's contribution in such shall meet the requirements for joint
invention under United States law.
r. Licensed Work - shall mean any Baseline Materials and/or Deliverables
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licensed by one of the parties to the other pursuant to a Project
Statement.
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s. Maintenance Modifications - shall mean any modifications or revisions,
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other than Enhancements, to Code, Hardware, or Documentation that correct
Errors or provide other incidental corrections.
t. Materials - shall mean Code, Documentation, other written materials or
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tangible media, including machine-readable media with Code or
Documentation recorded thereon, Hardware, or any combination of the
foregoing.
u. Project Statements - shall mean documents which define specific projects
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to be implemented under this Agreement.
v. Subsidiary - shall mean a corporation, company or other entity (1) more
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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 (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, now or hereafter, owned or
controlled, directly or indirectly, by a party hereto. However, such
corporation, company or other entity shall be deemed to be a Subsidiary
only so long as such ownership or control exists.
w. Version - shall mean Derivative Works that result from changes or
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additions to Code and related Documentation that (1) provide additional
value and utility and, as a practical matter, may be priced and offered
separately as optional additions to the Code and Documentation, or (2)
are not made available without separate charge.
5. LICENSES.
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a. Licenses granted by any one party ("Licensor") to the other party
("Licensee"), if any, shall be as set forth in the applicable Project
Statement. Examples of such licenses are:
(1) Copyright Licenses. The following copyright license grants are
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available, but are not required, for inclusion in a Project Statement
and may, in any event, be subject to more detailed terms and
provisions set forth in the applicable Project Statement.
(a) Full Copyright License. Under a Full Copyright License, Licensor
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grants to Licensee a non- exclusive, worldwide, non-transferable
license under Licensor's copyright rights to reproduce, execute,
perform, display and distribute internally and/or externally
copies of the Licensed Work, prepare or have prepared Derivative
Works based upon such Licensed Work, and to reproduce, execute,
perform, display and distribute internally and/or externally
copies of such Derivative Works. Such license includes the right
of the Licensee to grant sublicenses, of or within the scope of
the license granted to it herein, to third-parties, including
Licensee's distributors. Each licensed third party shall have a
corresponding right to license other third-parties.
(b) Limited Copyright License. Under a Limited Copyright License, the
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Licensee receives the same grant of rights as provided under a
Full Copyright License except for the rights to distribute either
internally or externally and sublicense Source Code.
(c) OEM Copyright License: Under an OEM Copyright License, Licensee
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receives the same grant of rights as provided under a Limited
Copyright License except for the right to prepare Derivative
Works based upon Licensed Works and all rights with respect to
Source Code.
(d) Distribution Copyright License. Under a Distribution Copyright
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License, Licensee receives the same grant of rights as provided
under an OEM Copyright License, except for the rights to
reproduce Licensed Works or to sublicense such rights. The
foregoing shall not be interpreted to prevent end-users or
Licensee from making backup or archive copies of Code.
(e) Internal Use Copyright License. Under an Internal Use Copyright
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License, Licensee receives the same grant of rights as provided
under a Full Copyright License, except for the rights to
distribute externally and sublicense Licensed Works.
(2) Other Copyright Matters.
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(a) Pictorial, Graphic, Audio/Visual Works and Moral Rights. The
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licenses specified, in Sections 5a(1) through 5a(5) include
corresponding licenses under Licensor's copyright and waiver of
any moral rights to pictorial, graphic or audio/visual works,
including icons, screens, music and characters, created as a
result of execution of any Code or any Derivative Works thereof
in accordance with the license.
(b) Development Environment Materials. For all Development
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Environment Materials not commercially available licensed under
a Full Copyright License or a Limited Copyright License,
Licensor shall grant to or obtain for Licensee a grant of right
and license that shall be at least sufficient to allow Licensee
to use delivered Code as set forth in a Project Statement.
(c) Ownership of Derivative Works. Derivative Works created by
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Licensee pursuant to a Full Copyright License or Limited
Copyright License shall be owned by Licensee subject the
intellectual property rights of Licensor in the relevant
Licensed Works.
(d) Copyright Notices. Any publication by Compaq or Tut of
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copyrighted works shall contain an appropriate copyright notice
in accordance with, and in the form prescribed by, the copyright
statutes. Each party shall not alter, modify or delete the other
party's copyright notice without the other party's written
consent.
(e) Registrations. Each party shall be responsible for registration
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of its Licensed Works and Derivative Works with the US Copyright
Office. If either party elects not to register any such Licensed
Work or Derivative Work, the other party may at its option and
expense register the Licensed Work or Derivative Work, but only
in the name of, and as the agent of, the party owning the
Licensed Work or Derivative Work.
(f) Copyright Enforcement. Each party shall have the exclusive
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right, but no obligation to, maintain the validity and
enforceability of its copyrights in its Licensed Works and
Derivative Works.
(3) Invention License. For each Project Statement, Licensor grants to
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the Licensee under all Inventions
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(other than Joint Inventions), applications filed on such
Inventions, and patents issuing thereon, a worldwide, nonexclusive,
nontransferable license to make, have made, use, have used, lease,
sell, offer to sell, import or export and/or otherwise transfer
Licensed Works incorporating such Inventions; and to practice and
have practiced such Inventions, but only as necessary to make, have
made, use or have used, lease, sell, import, export and/or otherwise
transfer Licensed Works. Such Invention license does not extend to
the manufacture, use, lease, sale, importation, exportation or other
transfer of any combination or sub-combination which does not
include Licensed Works.
b. Unless modified in a Project Statement, the following sections shall
apply:
(1) Ownership of Inventions. The inventing party shall own each Invention
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made by its employees, applications filed thereon and patents issuing
thereon (subject to the license set forth in Section 5(a)3, except
Joint Inventions which, unless specified otherwise in a Project
Statement, shall be jointly owned.
(2) With respect to Joint Inventions, Tut and Compaq shall share equally
in the expenses of seeking and maintaining patent protection,
provided that either party may elect at its own expense to seek and
maintain patent protection if the other party declines to share
expenses. Tut and Compaq may each license others under such Joint
Inventions, applications filed thereon and patents issuing thereon
without accounting to the other except.
c. Notice of Patent Infringement. If either party becomes aware that an item
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it has produced under this Agreement infringes, or allegedly infringes, a
patent of a third-party, that party agrees to notify the other party
promptly in writing.
d. Additional and/or Limited License Terms. Each Project Statement may
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contain provisions which add to and/or limit the licenses specified in
this Section 5. in the event that added and/or limited provisions are not
included in a Project Statement, the license types defined in this
Section 5 shall be construed narrowly so as to grant only those rights
specified. Except as expressly set forth in a Project Statement, no other
licenses shall be deemed granted, at any time to either party, whether
expressly, by implication, estoppel or otherwise.
6. COMPENSATION.
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a. Payment. Each party agrees to pay the other any fee, royalty, non-
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recurring expense ("NRE") reimbursement or other payment that may be
specified in a Project Statement. Other than as specifically set forth in
Project Statements, no other fees, royalties, NRE reimbursements or other
payment obligations shall accrue under this Agreement.
b. No Royalties for Certain Uses. Unless specified otherwise in a Project
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Statement, no royalty or other charge shall be payable by either party
for any Licensed Works used for:
(1) development, maintenance or support activities;
(2) sales demonstrations or temporary customer testing periods, excluding
customer evaluation units that convert to bona fide sales within one
hundred twenty (120) days of any termination of this Agreement;
(3) training or educational purposes that are directly related to the
sales and/or licensing of the Licensed Works; or
(4) back-up copies of Licensed Works subject to copyright protection.
c. Payments. Payment obligations shall accrue only as stated in a project
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Statement.
(1) For royalties, Licensee shall pay to Licensor within forty-five (45)
days after the conclusion of each calendar quarter, the amount of
payment obligations accruing during such calendar quarter, net of
refunds to customers and adjustments as set forth in Section 6b,
provided that payment obligations resulting from non-US activities
may be paid within sixty (60) days after conclusion of the calendar
quarter. Payment shall be accompanied by a summary of the basis for
determining the amount of such payment and shall be paid in US
dollars. Payment for activities in Countries where the transaction
was stated in local currency will be. converted to US currency on the
last business day of the quarter for which the payment is being made.
(2) For other payment obligations, payments shall be made within forty-
five (45) days after the receipt of an acceptable invoice detailing
the nature and amount of the expense and the Project Statement
reference indicating the payment obligation.
d. Audit. The parties shall maintain complete and accurate accounting
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records, in accordance with generally acceptable accounting practices, to
support and document payments payable in connection with activities
hereunder. Such records shall be retained for a period of at least two
(2) years alter the payments to which such records relate have been paid.
Each party shall, upon written request, during normal business hours, but
not more frequently than once each calendar year, provide access to such
accounting records to an independent accounting firm chosen and
compensated by the requesting party, for purposes of an audit. Such
accounting firm shall be required to sign an agreement protecting the
party's confidential information and shall be authorized to report only
the amount of payments due and payable for the period requested. The
requesting party shall bear the costs of the auditor unless it is
determined by the auditor that there was an underpayment of royalties of
five percent (5%) or greater in any calendar quarter period. In such
event, the audited party shall bear the reasonable costs of the audit for
such calendar quarter period.
7. PROCEDURE FOR ENTERING INTO PROJECT STATEMENTS.
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Each Project Statement issued under this Agreement shall become effective
only when executed by authorized representatives of both parties. Neither
party gives any assurance as to the issuance or execution of any subsequent
Project Statements. Each Project Statement entered into under this Agreement
shall be construed to incorporate the provisions of, and to be governed by,
this Agreement.
8. CONTRACT ADMINISTRATION.
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Executive Coordinator. Upon the execution of this Agreement, Compaq and Tut
shall each submit to the other party in writing the name, business address
and telephone number of the Executive Coordinator(s) who shall be
responsible for overall contract compliance. The responsibilities of the
Executive Coordinators are as follows:
a. administer and coordinate the overall aspects of the Agreement;
b. arrange meetings, visits and consultations between the parties concerning
matters related to this Agreement;
c. appoint Program Managers and Project Managers as appropriate; and
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d. appoint technical advisory board members.
9. CHANGES TO CONTRACT DOCUMENTS.
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a. Material Increases. In the event that a party proposes changes which
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materially increase the other party's cost or work effort, such proposal
shall include a proposed equitable adjustment in payments and/or
schedule. Where the parties agree to make a change to the Agreement
documents, the parties shall negotiate in good faith such adjustments.
Such revised payments will be based on a charge schedule similar to those
applicable to unchanged work.
b. Technical Changes. Program Managers or Project Managers, if appointed,
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may mutually propose, accept (by signature or initials) and implement
changes to technical aspects of such Project Statement, provided such
changes do not change dollar amounts, intellectual property rights or
materially change Deliverables or time schedules.
10. CONFIDENTIALITY AND INFORMATION EXCHANGE.
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a. Exchange. The obligations of the parties regarding confidentiality under
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this Agreement and any Project Statement entered into by the parties
pursuant to the Agreement shall be governed by the nondisclosure
agreement between the parties effective 12/3/97 or any renewals thereof.
b. Disclosure to Others. Neither party shall, without the prior written
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authorization of the other party, disclose to any third- party the terms
and conditions of this Agreement, except as may be necessary to establish
or assert rights hereunder, or as may be required by law or governmental
regulations. Notwithstanding the foregoing, the parties may disclose the
terms and conditions of this Agreement to subcontractors with a need to
know, provided they have signed nondisclosure agreements no less
restrictive than that signed between the parties.
11. REQUIREMENTS REGARDING AGREEMENTS WITH EMPLOYEES AND SUBCONTRACTORS.
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Each party agrees that it shall have and maintain, for so long as this
Agreement and any Project Statements are in effect, written agreements with
all employees, subcontractors or agents engaged by such party who assist
with or contribute to that party's duties, obligations or performance under
any Project Statement. The written agreements shall contain provisions
sufficient to establish the rights and benefits contemplated by, and to
assure compliance with this Agreement.
12. REPRESENTATIONS AND WARRANTIES.
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Each-party makes the following representations and warranties for the
benefit of the other.
a. No Extrinsic Assurances. Each party represents and warrants that, in
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entering into this Agreement and from time to time during the term of
this Agreement, it does not and will not rely on any promises,
inducements, or representations made by the other with respect to the
subject matter of this Agreement, nor on the expectation of any other
business dealings with the other party, now or in the future, except as
specifically provided in this Agreement.
b. Ownership and Authority.
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(1) PAYMENT. WHEN A PROJECT STATEMENT GRANTS LICENSES THAT RESULT IN A
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ROYALTY OR OTHER PAYMENT OBLIGATION, THE PARTY GRANTING SUCH
LICENSES REPRESENTS AND WARRANTS (a) THAT IT IS THE SOLE OWNER OF
ALL LICENSED WORKS PROVIDED BY IT UNDER THE PROJECT STATEMENT,
EXCEPT FOR ANY IDENTIFIED BASELINE MATERIALS AND/OR DELIVERABLES
BELONGING TO THE OTHER PARTY OR THIRD PARTIES, (b) THAT SUCH PARTY
HAS FULL AND SUFFICIENT AUTHORITY TO GRANT THE RIGHTS AND OR
LICENSES GRANTED TO THE OTHER PARTY UNDER THIS AGREEMENT, AND (c)
THAT LICENSED WORKS TO THE BEST KNOWLEDGE OF THE PARTY GRANTING THE
LICENSE DO NOT INFRINGE A PATENT COPYRIGHT OR TRADE SECRET OF A
THIRD PARTY.
(2) NO PAYMENT. WHEN A PROJECT STATEMENT GRANTS LICENSES THAT DO NOT
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RESULT IN A ROYALTY OR OTHER PAYMENT OBLIGATION, ALL LICENSED WORKS
ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY, INCLUDING, BUT NOT
LIMITED TO, ANY IMPLIED WARRANTIES OF OWNERSHIP, MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 12, NEITHER PARTY MAKES ANY
WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, UNDER THIS
AGREEMENT.
13. INDEMNIFICATION.
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a. Statement of Indemnification. As to each Licensed Work covered by
----------------------------
representations and warranty under Section 12(b)(1), Licensor agrees to
defend, at its expense, any suit, claim or the like against Licensee to
the extent such suit, claim or the like is based upon an assertion that
(1) the Licensor does not have sufficient right, title and interest in
the Licensed Works to enter into and/or convey the rights and licenses
granted under any Project Statement, and/or (2) that the Licensed Works
infringe the patent, copyright or trade secret rights of a third-party.
Licensor agrees to pay the amount of any settlement or the costs,
damages, and reasonable attorney's fees finally awarded in any such suit,
claim or the like provided, that:
(1) Licensor is notified promptly in writing of any notice of claim or of
threatened or actual Suit;
(2) Licensor has sole control of the defense of such suit, claim or the
like and related settlement negotiations;
(3) Licensee cooperates in the defense and settlement of such suit, claim
or the like at the expense of Licensor; and
(4) Any such settlement shall contain no admission of Licensor's
liability without the prior written approval of the Licensor.
Following notice from Licensee of a claim or of a threatened or actual
suit, to the extent based on the above, Licensor shall, at its expense,
procure for Licensee the right to continue to market, use, and/or have
others market or use the allegedly infringing Licensed Work, or replace
or modify the same to make it non-infringing. If Licensor elects to
replace or modify such Licensed Work, such replacement shall
substantially meet the specifications contained in the applicable Project
Statement.
b. Exceptions. Neither party shall have liability for any intellectual
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property infringement claim based on the combination of a Licensed Work
with a third party's software
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or equipment if (1) such infringement would have occurred with such
software or equipment being used alone or in combination with each other
or (2) there is a commercially reasonable non-infringing implementation
having similar performance or (3) such claim of infringement is based on
patent claims whose novelty resides in (a) features outside of the
Licensed Work or (b) a combination of features where the Licensed Work
could be replaced with a generic functional equivalent without
eliminating an element from the claimed combination.
c. Exclusive Statement. Sections 12 and 13 contain the entire and exclusive
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rights and obligations of the parties regarding any claim of
infringement.
14. TERM AND TERMINATION.
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a. Stated Term of Agreement. After an initial five (5) year term, this
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Agreement shall automatically renew for additional one (1) year periods
unless either party provides the other with written notice one hundred
eighty (180) days or more before the end of any term; provided, however,
that this Agreement shall continue to remain in effect with respect to
any Project Statement already in effect prior to such expiration until
such Project Statement is terminated and/or performance thereunder is
completed.
b. Termination for Convenience. Neither party may terminate this Agreement
---------------------------
prior to the first anniversary of the Effective Date. Either party may
then terminate this Agreement upon not less than one hundred eighty (180)
days' notice to the other party; provided, however, that its terms shall
survive with respect to any Project Statement already in effect prior to
such termination until performance thereunder is completed.
c. Termination for Cause. Either party shall have the option to terminate
---------------------
this Agreement or any Project Statement in the event that the other party
materially breaches any Agreement document and the breach remains uncured
for sixty (60) days after written notification to the breaching party.
d. Change of Control or Acquisition. If either party undergoes a Change of
--------------------------------
Control, the other party shall have the option to immediately terminate
this Agreement and have returned any or all Confidential Information then
in the possession of the other party and any Materials delivered under
any Agreement documents, provided, however, that nothing in this Section
shall be deemed to waive any obligation Tut has on account of such change
of control pursuant to Section 3(e).
e. Survival. In the event of expiration or termination of this Agreement,
--------
those Sections which by their nature are intended by the parties to
survive shall survive and continue in effect to the extent necessary to
protect the rights of the parties and their sublicensees (including end-
users). In addition, Sections 3a, 3b, 3e, and 3f shall survive so long as
Compaq maintains an equity investment in Tut.
15. LIMITATION OF LIABILITIES.
-------------------------
EXCEPT AS SET FORTH IN SECTION 13, NEITHER PARTY SHALL BE ENTITLED TO
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, EVEN IF ADVISED OF THE
LIKELIHOOD OF SUCH DAMAGES, OR FOR ANY DIRECT DAMAGES EXCEEDING [*].
16. FREEDOM OF ACTION.
-----------------
Unless specifically set forth in a Project Statement or signed addendum to
this Agreement, nothing in any Agreement document shall be construed as
prohibiting or restricting either party from independently developing or
acquiring and marketing materials and/or programs which are competitive with
the Licensed Works or from entering into similar agreement with other
parties.
17. GENERAL.
-------
a. Notice. Unless otherwise agreed to by the parties, all notices required
------
under this Agreement (except those relating to product pricing, changes
and upgrades) shall be deemed effective when received and made in writing
by either (i) registered mail, (ii) certified mail, return receipt
requested, or (iii) overnight mail, addressed and sent to the attention:
Tut: Tut Systems, inc.
--- 2495 Estand Way
Pleasant Hill, CA 94523-3911
Attn: Matt Taylor CTO
Compaq: Compaq Computer Corporation.
------ 20555 S. H. 249
Houston, Texas 77070
Attn: Mark Carpenter
with a copy of non-technical notices to:
Tut: Tut Systems, Inc.
--- 2495 Estand Way
Pleasant Hill, CA 94523-3911
Attn: CFO
Compaq: Compaq Computer Corporation
------ 20555 S.H. 249
Houston, Texas 77070
Attn: General Counsel,
Consumer Products Group
b. Construction.
------------
(1) Headings. The headings of this Agreement are provided for reference
--------
only and shall not be used as a guide to interpretation.
(2) Order of Precedence. In the event of inconsistency between or among
-------------------
the various Agreement documents, the following order of precedence
shall govern interpretation:
(a) Project Statements;
(b) This document;
(c) Documents incorporated by reference; and
(d) Purchase Orders.
c. Independent Contractor. Each party is and shall remain an independent
----------------------
contractor with respect to all performance rendered pursuant to the
Agreement documents. Neither party nor any employee thereof shall be
considered an employee or agent of the other party for any purpose and
shall have no authority to bind or make commitments on behalf of such
other party for any purpose and shall not hold itself or themselves out
as having such authority.
Each party assumes full responsibility for its actions and the actions of
its personnel in rendering performance pursuant to this Agreement, and
each party shall have sole responsibility for the supervision, daily
direction and control, payment of salary (including withholding of income
taxes and social security), worker's compensation, disability benefits
and the like of its personnel. Each party assumes full responsibility
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Page 6 of 9
for the acts of all its subcontractors.
d. Compliance with Laws. Each party shall, at its own expense, comply with
--------------------
any governmental law, statute, ordinance, administrative order, rule or
regulation relating to its duties, obligations and performance under this
Agreement and shall procure all licenses and pay all fees and other
charges required thereby.
e. Export of Technical Data. The parties shall not, nor shall they authorize
------------------------
or permit their employees, agents or subcontractors to, export or
reexport any Licensed Works, any technical information, or any process,
product or service that is produced under this Agreement to any country
specified as a prohibited destination in applicable national, state and
local laws, regulations and ordinances, including the Regulations of the
U.S. Department of Commerce and/or the U.S. State Department, without
first obtaining government approval.
f. Taxes. Each party shall have sole responsibility for the payment of all
-----
taxes and duties imposed by all governmental entities, as they pertain to
its duties, obligations and performance under this Agreement.
g. Force Majeure. Neither party shall be held liable for failure to fulfill
-------------
its obligations other than payment obligations under this Agreement, if
the failure is caused by flood, extreme weather, fire, or other natural
calamity, acts of governmental agency, or similar causes beyond the
control of such party, and the term for performance shall be increased to
a reasonable period of time.
Assignment. Neither party may sell, transfer, assign, or subcontract this
----------
Agreement or any right or obligation set forth herein, except as
expressly provided herein, without the prior written consent of the other
party. Any act in derogation of the foregoing shall be null and void.
i. Governing Law. The validity, construction, and performance of this
-------------
Agreement shall be governed by the substantive law of the State of Texas
without regard to the conflicts of law provisions thereof.
j. No Other Rights. This Agreement shall not be construed to grant any
---------------
rights by implication, estoppel, or otherwise, that are not granted
through its express provisions.
k. Amendments. All changes to Agreement documents must be made in writing
----------
and executed by authorized representatives of both parties. The terms of
the Agreement may only be changed by a written amendment signed by an
authorized representative of each party. Amendments implemented by a
signed Project Statement shall be effective only with respect to that
Project Statement.
l. Severability. If any provision of this Agreement is held by a court of
------------
competent jurisdiction to be contrary to law, the remaining provisions of
this Agreement will remain in full force and effect and shall be
interpreted, to the extent possible, to achieve its purposes without the
invalid, illegal or unenforceable provision.
m. Entire Agreement. The provisions of this Agreement, as in effect from
----------------
time to time by their terms, constitute the entire agreement between the
parties and supersede all prior agreements, oral or written, and all
other communications relating to the subject matter of this Agreement.
Any terms contained in invoices, acknowledgments, shipping instructions,
or other forms that are inconsistent with or different from the terms of
this Agreement shall be void and of no effect.
18. SIGNATURES. The parties have caused this Agreement to be executed by their
----------
duly authorized representatives.
COMPAQ COMPUTER CORPORATION
Signature /s/ Michael Baker
---------------------------
Name Mike Baker
---------------------------
Title VP Controller
---------------------------
Date 7/14/98
---------------------------
TUT SYSTEMS, INC
Signature /s/ Matthew Taylor
---------------------------
Name Matthew Taylor
---------------------------
Title Chairman
---------------------------
Date 7/7/98
---------------------------
Page 7 of 9
EXHIBIT 1
Specified Persons
-----------------
[*]
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Page 8 of 9
EXHIBIT 2
Companies
---------
[*]
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Page 9 of 9
PROJECT STATEMENT NO. 1
to the
MASTER AGREEMENT
between
COMPAQ COMPUTER CORPORATION
and
Tut SYSTEMS, INC.
This is Project Statement No. 1 with an Effective Date of April 21, 1998 by
Compaq Computer Corporation ("Compaq") and Tut Systems, Inc. ("Tut"), pursuant
to the Alliance Agreement executed between Compaq and Tut with an effective date
of April 21, 1998 (Agreement) into which this Project Statement is incorporated
by reference.
1. COMMENCEMENT
------------
This Project Statement shall commence on the Effective Date.
2. PROJECT DESCRIPTION
-------------------
The purpose of this Project Statement is to describe the responsibilities
and obligations of the parties regarding the development, testing, release
to manufacture by Tut of HomeRun(TM) (Hardware) and supporting software
(Code) more fully described in Attachment 1 hereto.
3. PROJECT LOCATION
----------------
This Project Statement shall be performed at, or managed by (i) Compaq's
office in Houston, Texas, (ii) Tut's office at 2495 Estand Way, Pleasant
Hill, CA 94523-3911. All Tut Deliverables shall be due at Compaq's Houston
office.
4. BRANDING
--------
Compaq agrees to affix a mutually agreeable logo ("Logo") representing the
HomeRun(TM) technology and not remove such Logo if previously affixed to
chipsets or adapter cards acquired or manufactured by, or on behalf of,
Compaq, and in any advertising, marketing, technical or other materials
related thereto. The preceding notwithstanding, Compaq shall not be
obligated to affix or reference such Logo unless a specific reference is
made to the HomeRun(TM) technology directly in such advertising, marketing,
technical or other materials. Tut agrees that it shall use its best efforts
to ensure that any use of the Logo (i) shall be consistent among all
licensees of the technology.
5. DEFINITIONS
-----------
All capitalized terms herein shall have the same meaning ascribed to them in
the Master Agreement unless the context expressly provides otherwise. For
purposes of this Project Statement, the following definitions shall also
apply:
a. Alpha Release - shall mean the Hardware and Code whose features are 100%
-------------
complete, whose functionality is 70% complete, and that is fully
localization enabled (per requirements).
b. Beta Release - shall mean the Hardware and Code that includes 100%
------------
functionality and functional completion.
c. Go To Silicon (GTS) - shall mean the Hardware and Code that includes
-------------------
functionally complete with no Priority 1/Priority 2 defects (as detected
during component level test), Hardware and Code freeze. Design is ready
to be integrated into silicon.
Page 1 of 9
d. Production Release - shall mean the version of the Hardware and Code
------------------
after complete system integration testing, and all Priority 1/Priority 2
defects are corrected and closed.
e. Compaq Acceptance - shall mean the independent testing conducted by
-----------------
Compaq Quality Engineering to verify compliance with the Functional
Specification.
f. Functional Specification - shall mean the HomeRun(TM). Physical Layer
------------------------
Specification, dated 3/17/98 attached hereto, and incorporated herein.
g. Error Severity Classification - shall mean the following:
-----------------------------
i. Priority 1 Error shall mean a feature/function as specified in the
associated specifications does not work and there are no known
Workarounds:
ii. Priority 2 Error shall mean a feature/function as specified, in the
associated specifications does not work and there is a Workaround.
iii. Priority 3 shall mean a feature/function as specified in associated
specifications does not conform to the specification and there are
reasonable Workarounds.
iv. Priority 4 Error shall mean a Cosmetic issue which does not impact
features or functions as specified in the associated specifications.
h. Product Announcement - shall mean a public announcement containing
--------------------
availability, pricing and customer ordering information.
i. [*]
j. HomeRun(TM) - shall mean the Tut HomeRun(TM) technology developed for
-----------
phoneline home networking running at a data rate of [*]
k. Silicon Manufacturer - shall mean a manufacturer of silicon devices who
--------------------
is capable of developing and manufacturing high quality Application
Specific Integrated Circuits (ASICs) from basic circuit designs as may be
provided by Tut.
l. Market Development - - shall mean those activities that directly promote
------------------
the joint interests of the parties related to home networking and the
creation of standards related thereto.
m. UADSL - shall mean Universal Asynchronous Digital Subscriber Line.
-----
n. Preferred OEM Status - shall mean a most preferential position relative
--------------------
to any other OEM that Tut might engage with. Under such preferential
position, Compaq shall be afforded no less favorable licensing terms than
any other OEM.
o. [*]
6. CONSIDERATION.
-------------
In consideration of the development, test and other activities associated
with providing Compaq the Hardware and Code specified in the Functional
Specifications, the parties have exchanged [*], the sufficiency of which the
parties hereby agree.
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Page 2 of 9
7. PROJECT MANAGERS.
----------------
The Project Managers for the parties shall be specified in writing within
thirty (30) days of the Effective Date of this Project Statement.
8. BASELINE MATERIALS.
------------------
The Baseline Materials, if any, of each party are specified in Attachment 2
of this Project Statement.
9. Tut RESPONSIBILITIES.
--------------------
Tut shall:
a. Grant a license to Compaq for the right to use the HomeRun(TM) technology
per Section 15.
b. Ensure that at least two (2) Silicon Manufacturers are contractually
obligated to provide HomeRun-based Network Interface Controller ASICs.
c. [*]
d. [*]
e. Work jointly with Compaq to evangelize phoneline home networking in the
industry through Market Development and participation in standards
activities (IEEE).
f. Develop and deliver to Compaq HomeRun(TM) technology per the schedule in
Attachment 1.
g. Provide an access controlled environment for any Compaq unannounced
products provided by Compaq to Tut under this Project Statement.
h. Provide to Compaq periodic defect reports for all Hardware and Code
provided under this Project Statement. These reports shall be provided as
needed, but no less frequently than once per. month, the content and
format to be mutually agreed to, but to include, at minimum, an
itemization of each outstanding defect and the estimated resolution date.
i. Isolate and resolve any issues found during Compaq testing of the
Reference Design. Tut shall support isolation and resolution of issues
found during integration of the resulting hardware based Reference Design
into Compaq platforms. To the extent that isolation of said integration
issues determine that Tut deliverables are at fault, Tut shall own their
resolution to Production Release definition.
j. Provide HomeRun(TM) specifications including analog front end, both
analog and digital physical layer components and analog modifications.
k. Provide any Maintenance Modifications of Tut deliverables created during
the Term of this Project Statement.
l. Prepare "Train The Trainer" education materials for HomeRun(TM).
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Page 3 of 9
10. COMPAQ RESPONSIBILITIES.
-----------------------
Compaq shall:
a. Conduct the Compaq Acceptance in accordance with the schedule specified
Attachment 1.
b. Provide to Tut the following Compaq Confidential Documents in accordance
with the schedule specified in Attachment 1
i. Hardware Functional Specification
c. Review and approve the Tut test plan documents in accordance with the
schedule in Attachment 1.
d. Review and approve the Tut Reference Design in accordance with the
schedule in Attachment 1.
e. Work jointly with Tut to evangelize phoneline home networking in the
industry through Market Development and participation in standards
activities.
f. Participate in field testing of HomeRun(TM) in conjunction with Compaq
and other 3rd parties.
11. JOINT RESPONSIBILITIES
----------------------
a. Negotiate in good faith a Marketing Project Statement with a target date
for completion of sixty (60) days from the Effective Date of this Project
Statement. Such Marketing Project Statement shall address the method of
funding, schedule of events, roles and responsibilities of the parties
and shall consider activities, communications or announcements that may
be of mutual interest and benefit to both parties.
b. Investigate areas whereby Tut can provide technology and Services other
than the HomeRun(TM) technology
c. Ensure that training on HomeRun(TM) technology insofar as it is included
with Compaq systems, or otherwise available from Compaq is included in
the training materials for Compaq representatives and sales consultants.
d. Upon a mutually agreed to date and forum, announce
i. Compaq's investment in Tut
ii. The signing of an agreement with Tut.
iii. The participation with Tut in the formation of a 1Mbps home
networking consortium
[*]
e. [*]
12. COMPAQ ACCEPTANCE
-----------------
Tut shall select and qualify a silicon manufacturer and verify the Reference
Design through GTS.
[*]
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Page 4 of 9
Within thirty (30) working days of the delivery of a Reference Design
version by Tut, Compaq shall provide Tut with a written notice of acceptance
or rejection. Any notice of rejection shall include a statement of Errors to
be corrected in the Reference Design. If Compaq fails to provide such notice
of acceptance or rejection, then the subject Reference Design version shall
be deemed to be accepted. Upon receipt of a notice of rejection, Tut shall,
within a commercially reasonably period of time based upon the Error
Severity Classification, or as otherwise mutually agreed upon, correct the
Errors in the Reference Design version as set forth in the notice of
rejection. Compaq shall, within ten (10) working days after such redelivery
by the manufacturer, provide Tut with a written notice of acceptance or
rejection. The procedure set forth in the previous sentence will be repeated
until Compaq accepts the Reference Design version or after a reasonable
number of attempts based upon the Error Severity Classification terminates
this Project statement.
Errors reported to Tut for correction in the Reference Design during this
Acceptance process shall be deemed Development Errors and shall be
identified by Error Severity Classification. Errors reported between
completion of the Acceptance process and manufacturing release of [*] from
the Consumer Products Group at Compaq shall be deemed Integration Errors,
which shall also be identified by Error Severity Classification and be
treated as Development Errors. The period of time for the discovery of
Integration Errors shall not extend, beyond [*]. To the extent that such
Integration Errors fail to meet Reference Design criteria, a new Reference
Design Release shall be delivered by Tut in accordance to the process
outlined in the previous paragraph. Errors that are subsequently identified
in the Reference Design by Tut, Compaq or other third parties in the
Production Release version shall be considered Errors to be corrected under
the support provisions for Licensed Products.
13. PROJECT MANAGEMENT.
------------------
The Project Managers shall issue semi-monthly a joint written status report
clearly describing the status of the development activity.
Project status/review meetings may be held weekly. These meetings shall be
at either party's office location, by teleconference, or may be waived as
deemed appropriate by the Tut and Compaq Project Managers. Attendees shall
include all individuals from either Compaq or Tut required to present and/or
discuss the project status and/or outstanding issues.
14. SUPPORT.
-------
Tut shall provide support for the Hardware by using its best efforts to
correct Errors reported and demonstrable in the Reference Design.
Additionally, it shall use commercially reasonable best efforts to assist in
the correction of Errors reported after Production Release by Compaq or
other third parties in the Production Release version.
15. LICENSE GRANTS.
--------------
For the Hardware provided under this Project Statement or otherwise acquired
from a licensed silicon manufacturer or other third party with appropriate
licenses from Tut, Tut hereby grants to Compaq a royalty free
1. Manufacturing License as defined in the Agreement that provides Compaq
the right to manufacture or have manufactured integrated circuits and
discrete components based upon the HomeRun(TM) technology-only for use in
fulfillment of Compaq's internal needs for chips or chipsets that embody
the HomeRun(TM) technology, and only in the event that (i) no more than
one Silicon Manufacturer is contractually obligated by Tut to manufacture
the HomeRun(TM)-based Network Interface Controller ASIC by 8/1/98, or
(ii) one of the two previously licensed manufacturers ceases to be a
licensed manufacturer and Tut has not licensed a replacement second
manufacturer within one hundred twenty (120) days. Such license shall
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Page 5 of 9
include the obligation to provide the deliverables as defined in
Attachment 3 (Manufacturing License Deliverables).
2. Trademark License as defined in the Agreement that permits Compaq to use
the Tut and/or HomeRun(TM) logo in compliance with its obligations in
this Project Statement.
3. [*]
16. TERM.
----
This Project Statement shall expire five (5) years from the Effective Date.
Notwithstanding any termination of this Project Statement, Compaq's Licenses
granted in Section 15 above shall survive.
IN WITNESS WHEREOF, THE PARTIES HAVE CAUSED THIS AGREEMENT TO BE EXECUTED BY
THEIR DULY AUTHORIZED REPRESENTATIVES,
COMPAQ COMPUTER CORPORATION Tut SYSTEMS, INC.
By: /s/ Mike Baker By: /s/ Matthew Taylor
------------------------------ ------------------------------
Name: Mike Baker By: Matthew Taylor
-------------------------- --------------------------
Title: VP Controller Title: Chairman
-------------------------- --------------------------
Date: 7/14/98 Date: 7/17/98
-------------------------- -------------------------
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Page 6 of 9
ATTACHMENT 1
PROJECT DELIVERABLES AND SCHEDULES
DESCRIPTION DUE DATE
SPECIFICATIONS
1. [*]
2. [*]
3. [*]
FIELD TESTING/COMPATABILITY TESTING
1. [*]
2. [*]
3. [*]
4. [*]
5. [*]
6. [*]
DESIGN MODIFICATIONS
1. [*]
2. [*]
3. [*]
4. [*]
SILICON MANUFACTURING SOURCES
1. [*]
2. [*]
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Page 7 of 9
ATTACHMENT 2
BASELINE MATERIALS
Page 8 of 9
ATTACHMENT 3
MANUFACTURING LICENSE DELIVERABLES
1. [*]
2. [*]
3. [*]
4. [*]
5. [*]
6. [*]
7. [*]
8. [*]
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Page 9 of 9