Exhibit
10.3
[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. 5 TO MACROMEDIA FLASH
COMMUNICATION
SERVER LICENSE AGREEMENT
This Amendment
No. 5 (“Amendment”) to the Macromedia Flash
Communication Server License Agreement by and between VitalStream,
Inc., a Delaware corporation with its principal place of business
at One Jenner, Suite 100, Irvine, California 92618
(“Licensee”) and Adobe Systems, Incorporated
(“Adobe”) (as successor to Macromedia, Inc.), a
Delaware corporation, with its principal place of business at 345
Park Avenue, San Jose, CA 95110, is effective as of December 30,
2005 (the “Amendment 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 Amendment No. 1 to
the Original Agreement dated as of April 28, 2004 (“Amendment
1”), Amendment No. 2 to Original Agreement dated as of April
28, 2004 (“Amendment 2”), Amendment No. 3 to the
Original Agreement dated as of August 6, 2004 (“Amendment 3),
and Amendment No. 4 to the Original Agreement dated as of March 1,
2005 (“Amendment 4). Amendment 1, Amendment 2, Amendment 3,
and Amendment 4 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 defined terms shall have the
meanings ascribed to them in the Agreement.
1. Term
Extension . The Term of the Agreement shall be extended to
December 30, 2006. Thereafter, Licensee has the option to renew
this Agreement for two additional one year terms by providing 30
days written notice to Adobe. In Section 7 of the Original
Agreement, the following words shall be deleted from the second
sentence thereof: “…,however, after the initial term
of the Agreement, either party may terminate the Agreement with at
least ninety (90) days prior written notice.”
2.
Fees. Section 2 of the Original Agreement (Fees) and
Section 1 of Amendment 4 shall be replaced in their entirety with
the following.
A. License
Fees.
At the
beginning of each Term, Licensee shall pay Adobe a non-cancelable
and non-refundable fee (the “Prepayment Fee”). The rate
for the license fees due under the Agreement (the “License
Fees”) for the Term shall be calculated based upon the amount
of the Prepayment Fee as follows:
Prepayment
Fee
License Fee
Minimum Transfer
Fee
$[***]
[***]%
$[***]
$[***]
[***]%
$[***]
$[***]
[***]%
$[***]
$[***]
[***]%
$[***]
$[***]
[***]%
$[***]
The Licensee
Fee shall equal the percentage of all fees that Licensee receives
from Customers for the set-up and use of the Service and the
Additional Service, subject to the Minimum Transfer Fees (as
defined below) or the Minimum Additional Service Fees (as defined
below), as the case may be. If during the Term, Licensee advises
Adobe in writing that it elects to make additional Prepayment Fees
above the commitment in Paragraph B of this Section
(“Additional Prepayment Fee”) specifying the USD amount
of such Additional Prepayment Fee, subject to the payment
provisions of Section 2.B. below, then the License Fees and Minimum
Transfer Fees subsequent to Adobe’s receipt of notice from
Licensee of Additional Prepayment Fee shall be adjusted to reflect
the License Fee and Minimum Transfer Fee rate applicable to the
amount of the
