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EXHIBIT 10.1
[Certain portions of this exhibit have
been omitted pursuant to Rule 24b-2 and are subject to a
confidential treatment request. Copies of this exhibit containing
the omitted information have been filed separately with the
Securities and Exchange Commission. The omitted portions of this
document are marked with a ***.]
AMENDMENT NO. 6 TO MACROMEDIA
FLASH COMMUNICATION
SERVER LICENSE AGREEMENT
This Amendment No. 6 ("Amendment 6") to the
Macromedia Flash Communication Server License Agreement by and
between VitalStream, Inc. ("Licensee"), a Delaware corporaation
with its principal place of business at One Jenner, Suite 100,
Irvine, California 92618 and Adobe Systems Incorporated, a Delaware
corporation with its principal place of business at 345 Park
Avenue, San Jose, CA 95110-2704 ("Adobe"), is effective as of
December 1, 2006 (the "Amendment 6 Effective Date").
WHEREAS, the parties entered into the Macromedia
Flash Communication Server License Agreement dated as of November
17, 2003 (the "Original Agreement"), as amended by (a) Amendment
No. 1 to the Original Agreement dated as of March 2004 ("Amendment
1"), (b) Amendment No. 2 to the Original Agreement dated as of
March 2004 ("Amendment 2"), (c) Amendment No. 3 to the Original
Agreement dated as of August 6, 2004 ("Amendment 3"), (d) Amendment
No. 4 to the Original Agreement dated as of March 1, 2005
("Amendment "), and (e) Amendment No. 5 to the Original Agreement
dated as of December 30, 2005. All of the foregoing amendments
together with the Original Agreement, shall be referred to herein
as the "Agreement"; and
WHEREAS, the parties desire to expand their
business relationship;
NOW, THEREFORE, in consideration of the foregoing
and other valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties agree as follows:
Except as expressly provided herein, all
capitalized terms used in this Amendment 6 but not otherwise
defined herein shall have the meanings given such terms in the
Agreement and, unless otherwise specified, references to Sections
refer to Sections of the Agreement.
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1.
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Sections 2(A) and 2(B) of the Agreement are
hereby deleted in their entirety and replaced with the
following:
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"A. License Fees. Starting with the Amendment 6
Effective Date and at each annual anniversary of the Amendment 6
Effective Date thereafter during the Term, Licensee shall pay Adobe
an annual, non-cancelable and non-refundable prepayment of the
license fees payable by Licensee for use of the Service (each, a
"Prepayment Fee"). Each annual Prepayment Fee shall be applied, on
a monthly basis, against the license fees payable by Licensee for
use of the Service during the applicable month, which license fees
consist of either (i) the Customer License Fee, or (ii) the Minimum
Transfer Fee (each as defined below), whichever is greater during
such month, measured on a per-Customer basis. Except for the amount
of Carryover Amount (as defined below), to which the following
shall not apply, the Prepayment Fee actually paid by Licensee to
Adobe shall determine the price point for the Customer License Fee
and the Minimum Transfer Fee payable during the applicable
twelve-month period to which the Prepayment Fee applies, as such
price points are set out in the table below.
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Annual Commitment
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Customer License Fee
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Minimum Transfer Fee
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$ ***
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***
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***
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$ ***
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***
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***
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$ ***
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***
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***
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$ ***
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***
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***
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$ ***
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***
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***
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$ ***
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***
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***
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$ ***
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***
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***
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$ ***
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***
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***
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Either or both of the Customer License Fee and/or
the Minimum Transfer Fee may be referred to herein as a "License
Fee".
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i.
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For each Customer, to the extent the Minimum
Transfer Fees for a given month exceeds the Customer License Fee
for such month, then Licensee shall pay the Minimum Transfer Fee in
lieu of the Customer License Fee for that particular Customer, for
that particular month.
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ii.
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"Customer License Fee" means all fees that
Licensee receives from Customers for the use of the Service,
including but not limited to monthly revenue for actual usage,
commitments, coverage, and setup fees, multiplied by the applicable
percentage set out in the table in this Section 2(A).
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iii.
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If Licensee does not elect a Prepayment Fee for
each subsequent twelve-month period after the payment of the
Initial Prepayment Fee by providing Adobe with written notice at
least 30 days prior to the expiration of the then-current twelve
month period, then the Prepayment Fee will be the same level as the
prior twelve-month period.
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iv.
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During the Term, Licensee may remit to Adobe
additional amounts of Prepayment Fee ("Additional Prepayment Fee")
at the end of any calendar quarter, provided that Licensee has
provided at least 15 days prior written notice to Adobe of the
payment of such Additional Prepayment Fee. If Licensee pays to
Adobe an Additional Prepayment Fee, then as of the date that Adobe
receives such Additional Prepayment Fee, the price points for the
Customer License Fee and Minimum Transfer Fees payable during the
remainder of then-current term shall be adjusted to reflect the
price points applicable to the sum of the then-current Prepayment
Fee and the Additional Prepayment Fee. For the avoidance of doubt,
only License Fees payable by Licensee after the Additional
Prepayment Fee has been received by Adobe shall be expended at the
revised License Fee price points.
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-2-
B. Prepayment Fee . The Prepayment Fee
(including, for avoidance of doubt, the Initial Prepayment Fee and
any Additional Prepayment Fee) is non-cancelable and
non-refundable, (except for refunds made pursuant to Section 7 of
the Agreement, as amended by Section 5 hereof; if the Prepayment
Fee and, if applicable, any Additional Prepayment Fee, having not
been fully expended, then Licensee shall be entitled to receive a
refund in the amount of that portion of the Prepayment Fee, and, if
applicable, any Additional Prepayment Fee, that had not been
expended as of the date of such termination, which refund payment
shall be made by Adobe to Licensee within 30 days of the date of
termination, and any portion of the refund not paid within such 30
days shall be subject to a late charge of 1.5% per month of the
maximum rate allowed by applicable law, whichever is less, on the
overdue balance. Notwithstanding any refund
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