Restated Technology License Agreement

EXHIBIT 10.3


RESTATED TECHNOLOGY LICENSE AGREEMENT
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This Restated Technology License Agreement (the "Agreement") is made and entered into as of September 27, 1995 (the "Effective Date") by and between Radius Inc. with its principal place of business at 215 Moffett Park Drive, Sunnyvale, California 94089 ("Radius"), and Augment Systems Inc., a Delaware corporation, with its principal place of business at 19 Crosby Drive, Bedford, Massachusetts 01730 ("Augment").


RECITALS
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A. On July 29, 1994, Radius and Augment entered into a License Agreement which was subsequently amended on July 25, 1995 (the "Original Agreement"). Under the Original Agreement, Radius granted Augment a limited, non-exclusive license to develop certain Radius technology known as Skylab.


B. Augment is in the process of soliciting financing as more fully described in its private placement memorandum dated August 1995 (the "Financing").


C. Radius and Augment desire to amend and supersede the Original Agreement with (i) this Agreement and (ii) that certain Sales Agreement executed on even date herewith and attached hereto as Exhibit A (the "Augment Sales Agreement").


NOW, THEREFORE, in consideration of mutual promises contained herein, the parties agree as follows:


1. DEFINITIONS


1.1. "APPLE TECHNOLOGY" is the Apple Computer, Inc. ("Apple") proprietary technology contained in Skylab.


1.2. "RADIUS TECHNOLOGY" is the Radius proprietary technology relating to Skylab and/or Rocket, including the Skylab chassis, packaging, power supply, motherboard, disk array subsystem, software code that runs on top of the Vertex real-time kernel, and Rocket technology consisting of NuBus-based multiprocessor cards, daughtercards and software.


1.3. "CONFIDENTIAL INFORMATION" means information disclosed by one party to the other which is confidential and proprietary to the disclosing party. Confidential Information includes but is not limited to trade secrets, source code, schematic diagrams, technical information and business and marketing plans.


1.4. "SKYLAB" means a multiprocessing file and compute server product developed by and proprietary to Radius which consists of several types of technology including the Radius Technology and the Apple Technology (as defined herein).


1.5. "INTELLECTUAL PROPERTY RIGHTS" means patent rights, rights in patent applications, copyright rights (including, but not limited to, rights in audiovisual works and the right to make derivative works), mask work rights, trade secret rights, and any other intellectual property rights.


1.6. "LICENSED SOFTWARE" means the software related to Skylab and/or Rocket provided to Augment by Radius under either (i) the Original Agreement or (ii) this Agreement, or owned by Radius as a result of Section 3.2 of the Original Agreement.


1.7. "MODIFIED TECHNOLOGY" means any and all modifications made by or on behalf of Augment to the Radius Technology, the Licensed Software, and (to the extent any agreement between Augment and Apple is consistent herewith) the Apple Technology. A modification means any change to the hardware or software as described in the engineering documentation provided by Radius for Skylab and Rocket products.


1.8. "MORAL RIGHTS" mean any rights of paternity or integrity, any right to claim authorship of any works of authorship, materials or writings, to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, any works of authorship, materials or writings, and any similar right, existing under judicial or statutory law of any country in the world, or under any treaty, regardless of whether or not such right is denominated or generally referred to as a "moral right."


2. TECHNOLOGY LICENSES


2.1. HARDWARE LICENSE. Subject to the terms and conditions of this Agreement, Radius hereby grants Augment, and Augment accepts a limited, exclusive (except as to Radius and subject to the limitations and restrictions set forth in this Agreement), worldwide, non-transferable, royalty-bearing license (i) to use, modify, and otherwise create derivative works of Skylab and (ii) to reproduce, manufacture, market, and distribute products based on Skylab.


2.2. SOFTWARE LICENSE. Subject to the terms and conditions of this Agreement, Radius hereby grants Augment, and Augment accepts a limited, exclusive (except as to Radius and subject to the limitations and restrictions set forth in this Agreement), worldwide, non-transferable, royalty-bearing license (i) to use, modify, and otherwise create derivative works of the Licensed Software in source code form and (ii) to reproduce, manufacture, market, distribute, and sublicense (without the right to reproduce, unless Augment notified Radius of the sublicensee's name, address, telephone number, and individual contact, in writing prior to granting a sublicense with the right to reproduce) software based on the Licensed Software only in object code form and only in connection with the distribution and marketing of products based on Skylab.


2.3. LICENSES. The licenses granted pursuant to sections 2.1 and 2.2 shall be referred to as the "Radius Licenses."


2.4. LIMITATIONS ON THE RADIUS LICENSES. The Radius licenses shall be subject to the following additional limitations:


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i) Augment shall not attempt to reverse engineer any portions of the Licensed Software which may be provided to Augment only in object code form.


ii) Augment may not distribute any source code incorporating any of the Radius Technology.


iii) Notwithstanding the exclusivity provisions in the Radius Licenses, Radius retains the right to do what it has licensed Augment to do.


iv) Augment understands that portions of the Radius Technology may be incorporated into existing, planned, or future Radius products. Augment agrees that Radius remains free to use the Radius Technology in any of its existing, planned, or future products, whether sold under Radius' brand or OEMs'.


2.5. TERMINATION OF EXCLUSIVITY. The Radius Licenses shall become non-exclusive without notice to Augment immediately if the number of Royalty Bearing Units is less than the minimum amounts stated in Exhibit B for any two consecutive quarters and Augment fails to pay the minimum royalty due in accordance with Exhibit B.


2.6. RADIUS ATTRIBUTION. Augment will indicate on products based on the Radius Technology or Modified Technology that are distributed and on all related collateral material, in a manner that is agreed to by both parties, that Radius is the developer and licensor of the Radius Technology. In providing such attribution, Augment will comply with such reasonable trademark usage guidelines and policies as Radius may determine from time to time. Nothing contained in this Agreement shall give Augment any rights in any Radius trademark, trade name, logo, or trade designation. Radius shall have the right to approve or disapprove any product or collateral material on which Radius or its trademarks are used before Augment's public distribution of such product or collateral material, such approval shall not be unreasonably withheld.


2.7. RESERVATION. Radius reserves all rights and licenses in and to the Radius Technology not expressly granted to Augment herein.


3. OWNERSHIP AND PROPRIETARY RIGHTS.


3.1. OWNERSHIP OF LICENSED SOFTWARE. All right, title, and interest (including all know-how and all world-wide Intellectual Property Rights), in and to the Licensed Software shall remain in Radius or its licensors. This Agreement is not intended to and shall not be interpreted as transferring any ownership right in the Radius Technology to Augment.


3.2. OWNERSHIP OF MODIFIED TECHNOLOGY AND LICENSE TO RADIUS. Subject to Radius' (and, if applicable, Apple's) Intellectual Property Rights in the underlying technology, all right, title, and interest (including all know-how and all world-wide Intellectual Property Rights), in and to the Modified Technology shall belong to Augment.


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3.3. LICENSE TO RADIUS. Augment hereby grants to Radius an irrevocable, permanent, nonexclusive, worldwide, fully paid-up, royalty-free right and license (the "License Back to Radius") under the Intellectual Property Rights to the Modified Technology to reproduce, make derivative works of, display publicly, make, use, import, sell, lease or otherwise dispose of products covered by such Intellectual Property Rights and to practice any process or method covered by such Intellectual Property Rights, and to authorize others to do any of the above. The License Back to Radius includes, without limitation, the right to sell products with, or intended for use in combination with apparatuses or in a method where such combination or method is covered by such Intellectual Property Rights.


3.4. PROPRIETARY NOTICES. All proprietary notices, labels or marks relating to Radius' Intellectual Property Rights (the "Notices") incorporated in, marked for fixed to the Radius Technology shall not be removed, altered or obliterated by Augment. Augment shall duplicate any such Notices on any copies, whether made in whole or in part, in any form. Augment shall only distribute software based on the Licensed Software with an appropriate copyright notice. Augment shall (for the duration of any patent and not longer) include such patent notice(s) in the packaging, documentation, software and/or products as Radius requests (e.g., U.S. Patent No. X,XXX,XXX).


3.5. APPLE TECHNOLOGY. Augment understands that a portion of Skylab is composed of the Apple Technology which is proprietary to Apple. The Apple Technology was licensed to Radius. Augment understands that the license from Apple does not allow Radius to sublicense or transfer Radius' rights to the Apple Technology. Augment understands that it must contact Apple regarding rights to the Apple Technology, and that Radius is in no way responsible for Apple's decision with respect thereto.


4. COMPENSATION


4.1. ROYALTIES. Augment shall pay Radius royalties for each unit sold of products based on the Radius Technology or the Modified Technology, as set forth below:


For Units 1-200: The greater of (i) one thousand five- hundred dollars ($1,500.00) or (ii) the amount calculated by multiplying two percent (0.02) and the purchase price (in United States dollars at the F.O.B. point) paid to Augment therefor.


For Units 201-1000: The greater of (i) one thousand dollars ($1,000.00) or (ii) the amount calculated by multiplying one and one-half percent (0.015) and the purchase price (in United States dollars at the F.O.B. point) paid to Augment therefor.


For Units 1001 and over: The greater of (i) seven- hundred and fifty dollars ($750.00) or (ii) the amount calculated by multiplying one percent (0.01) and the purchase price (in United States dollars at the F.O.B. point) paid to Augment therefor.


Royalties will not accrue in connection with any units distributed by Augment without consideration (such as demo units or loaners), or used internally for testing and quality


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assurance purposes (collectively, "Non-Royalty Bearing Units"). All other units shall bear royalties ("Royalty Bearing Units").


Royalties shall continue to accrue until the cumulative total of Royalties paid by Augment to Radius under this Agreement shall equal ten million dollars ($10,000,000.00), in which event Augment's duty to pay Royalties and its duties under Section 4.4 shall cease.


At any time, in Augment's sole discretion, Augment may make advance payments of Royalties. Radius shall accept such Royalties and credit Augment therefor. Augment shall notify Radius regarding the allocation of such advance Royalties to actual Royalties as they accrue. In no event shall advanced Royalties paid by Augment be refundabl ...