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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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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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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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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“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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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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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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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,
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