-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, R1ZvrxzSKphbwliMMgyUWJOeHMtMTYRlY3CL7pdWJ1CcpUyAPT/rOmRkH27tI1yY +EUGlb/TM+bk24c2EjzlQw== 0000950123-10-039709.txt : 20100428 0000950123-10-039709.hdr.sgml : 20100428 20100428170402 ACCESSION NUMBER: 0000950123-10-039709 CONFORMED SUBMISSION TYPE: 10-K/A PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20091231 FILED AS OF DATE: 20100428 DATE AS OF CHANGE: 20100428 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SMITH MICRO SOFTWARE INC CENTRAL INDEX KEY: 0000948708 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 330029027 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K/A SEC ACT: 1934 Act SEC FILE NUMBER: 000-26536 FILM NUMBER: 10777674 BUSINESS ADDRESS: STREET 1: 51 COLUMBIA STREET 2: STE 200 CITY: ALISO VIEJO STATE: CA ZIP: 92656 BUSINESS PHONE: 9493625800 MAIL ADDRESS: STREET 1: 51 COLUMBIA STREET 2: STE 200 CITY: ALISO VIEJO STATE: CA ZIP: 92656 10-K/A 1 a55282ae10vkza.htm FORM 10-K/A e10vkza
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
Amendment No. 1
 
     
þ   ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2009
     
o   TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from                      to                     
Commission File Number 0-26536
SMITH MICRO SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
 
     
Delaware   33-0029027
(State or other jurisdiction of incorporation or organization)   (I.R.S. Employer Identification Number)
     
51 Columbia, Aliso Viejo, CA   92656
(Address of principal executive offices)   (Zip Code)
Registrant’s telephone number, including area code: (949) 362-5800
     
Common Stock, $.001 par value   The NASDAQ Stock Market LLC
(Title of each class)   (NASDAQ Global Select Market)
    (Name of each exchange on which registered)
 
Securities registered pursuant to Section 12(b) of the Act: Common Stock, $.001 par value
Securities registered pursuant to Section 12(g) of the Act: None
     Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. YES o NO þ
     Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 YES o NO þ
     Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. YES þ NO o
     Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes o No o
     Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K o.
     Indicate by check mark if whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of “accelerated filer and large accelerated filer” in Rule 12b-2 of the Exchange Act. (Check one):
             
Large accelerated filer o   Accelerated filer þ   Non-accelerated filer o   Smaller reporting company o
        (Do not check if a smaller reporting company)    
     Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). YES o NO þ
     As of June 30, 2009, the last business day of the registrant’s most recently completed second quarter, the aggregate market value of the common stock of the registrant held by non-affiliates was $281,770,002 based upon the closing sale price of such stock as reported on the Nasdaq Global Select Market on that date. For purposes of such calculation, only executive officers, board members, and beneficial owners of more than 10% of the registrant’s outstanding common stock are deemed to be affiliates.
     As of February 11, 2010, there were 33,380,496 shares of common stock outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
     Portions of the registrant’s Proxy Statement for the 2010 Annual Meeting of Stockholders to be filed under the Securities Exchange Act of 1934 are incorporated by reference in Part III of this report.
 
 

 


Table of Contents

EXPLANATORY NOTE
     The sole purpose of this amendment is to amend Exhibit 10.4.5 to the registrant’s Annual Report on Form 10-K for the year ended December 31, 2009, as originally filed with the SEC on March 2, 2010, to include certain portions of the Exhibit that had previously been omitted (or “redacted”) pursuant to a request for confidential treatment. This amendment provides a revised redacted version of Exhibit 10.4.5. Accordingly, Exhibit 10.4.5 is hereby amended and restated in its entirety. Pursuant to Rule 12b-15 under the Securities and Exchange Act of 1934, as amended, the registrant is including only Item 15 of Part IV below. The remainder of the information contained in the original Form 10-K filing is not amended hereby. This amendment does not reflect events occurring after the filing of the original Form 10-K, or modify or update the disclosures therein in any way other than as required to reflect the amendment set forth herein.

 


TABLE OF CONTENTS

EXPLANATORY NOTE
PART IV
Item 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
SIGNATURES
EX-10.4.5
EX-31.1
EX-31.2


Table of Contents

PART IV
Item 15.   EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a)(1) Financial Statements
     Smith Micro’s financial statements appear in a separate section of this Annual Report on Form 10-K beginning on the pages referenced below:
         
    Page
Report of Independent Registered Public Accounting Firm
    F-1  
Consolidated Balance Sheets as of December 31, 2009 and 2008
    F-3  
Consolidated Statements of Operations for each of the three years in the period ended December 31, 2009
    F-4  
Consolidated Statements of Stockholders’ Equity for each of the three years in the period ended December 31, 2009
    F-5  
Consolidated Statements of Cash Flows for each of the three years in the period ended December 31, 2009
    F-6  
Notes to Consolidated Financial Statements for each of the three years in the period ended December 31, 2009
    F-8  
(2)   Financial Statement Schedule
     Smith Micro’s financial statement schedule appears in a separate section of this Annual Report on Form 10-K on the pages referenced below. All other schedules have been omitted as they are not applicable, not required or the information is included in the consolidated financial statements or the notes thereto.
         
    Page
Schedule II — Valuation and Qualifying Accounts for each of the three years in the period ended December 31, 2009.
    S-1  
(3)   Exhibits
         
Exhibit        
No.   Title   Method of Filing
2.1 
  Agreement and Plan of Merger, dated September 9, 2009, by and among Smith Micro Software, Inc., Mobility Acquisition Corp., Core Mobility, Inc., Konstantin Othmer, as stockholders’ agent, and the founders of Core Mobility.   Incorporated by reference to Exhibit 2.1 to the Registrant’s Quarterly Report on Form 10-Q filed on November 5, 2009.
 
       
3.1 
  Amended and Restated Certificate of Incorporation of the Registrant.   Incorporated by reference to Exhibit 3.1 to the Registrant’s Registration Statement No. 33-95096.
 
       
3.1.1 
  Amendment to the Amended and Restated Certificate of Incorporation of the Registrant.   Incorporated by reference to Exhibit 3.1.1 to the Registrant’s Quarterly Report on Form 10-Q for the period ended June 30, 2000.
 
       
3.1.2 
  Certificate of Amendment to Amended and Restated Certificate of Incorporation of Registrant as filed August 18, 2005 with Delaware Secretary of State.   Incorporated by reference to Exhibit 3.1.2 to the Registrant’s Annual Report on Form 10-K for the period ended December 31, 2005.
 
       
3.2 
  Amended and Restated Bylaws of the Registrant.   Incorporated by reference to Exhibit 3.2 to the Registrant’s Registration Statement No. 33-95096.

 


Table of Contents

         
Exhibit        
No.   Title   Method of Filing
3.3 
  Certificate of Amendment of Amended and Restated Bylaws of Smith Micro Software, Inc.   Incorporated by reference to Exhibit 3.3 to the Registrant’s Current Report on Form 8-K filed on October 31, 2007.
 
       
4.1 
  Specimen certificate representing shares of Common Stock of the Registrant.   Incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement No. 33-95096.
 
       
10.1 
  Form of Indemnification Agreement.   Incorporated by reference to Exhibit 10.1 to the Registrant’s Registration Statement No. 33-95096.
 
       
10.2 
  1995 Stock Option/Stock Issuance Plan as Amended and Restated through February 7, 2001.   Incorporated by reference to the Appendix attached to the Definitive Proxy Statement for the 2001 Annual Meeting of Stockholders filed on April 27, 2001.
 
       
10.3 
  Amended and Restated 2005 Stock Option / Stock Issuance Plan.   Incorporated by reference to Exhibit 10.7 to the Registrant’s Registration Statement on Form S-8 (Reg. No. 333-149222).
 
       
10.4 † 
  Master Software License and Distribution Agreement (Contract No. 220-00-0134) effective as of December 1, 2000, between Cellco Partnership (d/b/a Verizon Wireless) and the Registrant.   Incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2003.
 
       
10.4.1† 
  Amendment of Master Software License and Distribution Agreement (Contract No. 220-00-0134).   Incorporated by reference to Exhibit 10.1.1 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2003.
 
       
10.4.2† 
  Amendment No. 2 to the Master Software License and Distribution Agreement (Contract No. 220-00-0134).   Incorporated by reference to Exhibit 10.1.2 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2003.
 
       
10.4.3†† 
  Amendment No. 6 to the Master Software License and Distribution Agreement (Contract No. 220-00-0134).   Previously filed.
 
       
10.4.4†† 
  Amendment No. 7 to the Master Software License and Distribution Agreement (Contract No. 220-00-0134).   Previously filed.
 
       
10.4.5†† 
  Amendment No. 9 to the Master Software License and Distribution Agreement (Contract No. 220-00-0134).   Filed herewith.
 
       
10.5 
  Letter Agreement, dated June 13, 2005, by and between Smith Micro Software, Inc. and Andrew Schmidt.   Incorporated by reference to Exhibit 10.5 to the Registrant’s Current Report on Form 8-K filed on November 30, 2006.
 
       
10.6 
  Employment Agreement dated April 9, 1999 by and between Smith Micro Software, Inc. and William Wyand.   Incorporated by reference to Exhibit 10.6 to the Registrant’s Current Report on Form 8-K filed on November 30, 2006.
 
       
10.7 
  Employment Agreement effective as of January 4, 2008 by and between Smith Micro Software, Inc. and Biju Nair.   Incorporated by reference to Exhibit 10.7 to the Registrant’s Current Report on Form 8-K filed on January 9, 2008.
 
       
10.8 
  Management Retention Agreement effective as of January 4, 2008 by and between Smith Micro Software, Inc. and Biju Nair.   Incorporated by reference to Exhibit 10.7 to the Registrant’s Current Report on Form 8-K filed on January 9, 2008.

 


Table of Contents

         
Exhibit        
No.   Title   Method of Filing
10.9 
  Executive Employment Agreement dated July 1, 2005 by and between Smith Micro Software, Inc. and Jonathan Kahn.   Incorporated by reference to Exhibit 10.9 to the Registrant’s Annual Report on Form 10-K/A filed on April 29, 2008.
 
       
10.10 
  Summary of oral agreement dated June 2005 by and between William W. Smith, Jr. and the Registrant.   Incorporated by reference to Exhibit 10.10 to the Registrant’s Quarterly Report on Form 10-Q filed on August 4, 2009.
 
       
14.1 
  Code of Ethics.   Incorporated by reference to Exhibit 14.1 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2003.
 
       
14.1.1 
  Attachment 1 to Code of Ethics.   Incorporated by reference to Exhibit 14.1 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2003.
 
       
21.1 
  Subsidiaries.   Previously filed.
 
       
23.1 
  Consent of Independent Registered Public Accounting Firm.   Previously filed.
 
       
31.1 
  Certification of the Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.   Filed herewith.
 
       
31.2 
  Certification of the Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.   Filed herewith.
 
       
32.1 
  Certifications of the Chief Executive Officer and the Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.   Previously filed.
 
  Confidential treatment has been granted with respect to certain confidential portions of this exhibit pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, which confidential portions have been omitted from the exhibit and filed separately with the Securities and Exchange Commission.
 
††   Confidential treatment has been requested with respect to certain confidential portions of this exhibit pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, which confidential portions have been omitted from the exhibit and filed separately with the Securities and Exchange Commission.
  (b)   Exhibits
     The exhibits filed as part of this report are listed above in Item 15(a) (3) of this Form 10-K.
  (c)   Financial Statement Schedule
     The Financial Statement Schedule required by Regulation S-X and Item 8 of this Form are listed above in Item 15(a)(2) of this Form 10-K.

 


Table of Contents

SIGNATURES
     Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
         
  SMITH MICRO SOFTWARE, INC.
 
 
Date: April 28, 2010  By:   /s/ William W. Smith, Jr.    
    William W. Smith, Jr.   
    Chairman of the Board, President and Chief Executive Officer (Principal Executive Officer)   
 
     
Date: April 28, 2010  By:   /s/ Andrew C. Schmidt    
    Andrew C. Schmidt,   
    Chief Financial Officer (Principal Financial and Accounting Officer)   
 
     Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
         
Signature   Title   Date
 
*
 
  Chairman of the Board, President   April 28, 2010
William W. Smith, Jr.
  and Chief Executive Officer
(Principal Executive Officer)
   
 
       
/s/ Andrew C. Schmidt
 
  Chief Financial Officer   April 28, 2010
Andrew C. Schmidt
  (Principal Financial and Accounting Officer)    
 
       
*
 
  Director   April 28, 2010
Thomas G. Campbell
       
 
       
*
 
  Director   April 28, 2010
Samuel Gulko
       
 
       
*
 
  Director   April 28, 2010
Ted L. Hoffman
       
 
       
*
 
  Director   April 28, 2010
William C. Keiper
       
 
       
*
 
  Director   April 28, 2010
Gregory J. Szabo
       
 
         
* By:
  /s/ Andrew C. Schmidt
 
Andrew C. Schmidt, as Attorney-in-Fact
   

 

EX-10.4.5 2 a55282aexv10w4w5.htm EX-10.4.5 exv10w4w5
Exhibit 10.4.5
Amendment 9 AGR-002139-2009
Master Agreement 750-33576-2001(Contract No. 220-00-0134)
Amendment No. 9 to the
Master Software License and Distribution Agreement
(Contract No. 220-00-0134) between
Verizon Corporate Services Group Inc. and
Smith Micro Software, Inc.
This Amendment No. 9 (“Amendment”) amends the Master Software License and Distribution Agreement (“Agreement”) between Verizon Corporate Services Group Inc., a New York corporation (“Verizon”) on behalf of itself and for the benefit of its Affiliates, and Smith Micro Software, Inc. (“SMSI”). This Amendment shall be effective as of October 30, 2009 (the “Effective Date”), unless terminated in accordance with the Agreement (Termination).
WHEREAS, Verizon’s predecessor in interest, Cellco Partnership, a Delaware general partnership d/b/a Verizon Wireless and SMSI entered into a Master Software License and Distribution Agreement dated December 1, 2000, which previously has been amended by Amendments No. 1 through No. 8; and
WHEREAS, Verizon and SMSI now desire to further amend the Agreement as set form herein;
NOW, THEREFORE, in consideration of the foregoing promises, and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, Verizon and SMSI hereby agree as follows:
  1.   This Amendment is an integral part of the Agreement. The terms used herein which are defined or specified in the Agreement shall have the meanings set forth in the Agreement. If there are any inconsistencies between a specific term or condition of this Amendment and a specific term or condition of the Agreement, the specific term or condition of this Amendment shall control.
 
  2.   Based on Verizon’s review of the pre-release version provided by SMSI and accepted by Verizon in accordance with purchase order [****]. Verizon would like to move forward with further customization of the VMM client in accordance with the attached Schedule A-11.
 
  3.   Section 3.1 is hereby deleted in its entirety and replaced with the following:
“3.1 Term. The term of this Agreement is hereby extended for an additional period of two (2) years, commencing on the Effective Date of Amendment 9, and will be automatically renewed for successive two (2) year periods unless either party notifies the other party in writing of its election to terminate the Agreement at least sixty (60) days prior to the expiration of any renewal term, as applicable.”
  4.   Schedule A-11, V CAST Media Manager (“VMM”) Phase Releases I, II, III, IV, and V Statement of Work, is made part of the Amendment and shall be added to the Agreement
Master Software License and Distribution Agreement, Confidential Amendment No. 9

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**** Confidential Treatment has been requested for certain redacted provisions of this exhibit. The redacted provisions are identified by asterisks and enclosed by brackets. The confidential portions have been filed separately with the Securities and Exchange Commission.


 

Amendment 9 AGR-002139-2009
Master Agreement 750-33576-2001 (Contract No. 220-00-0134)
      in the form attached hereto. In addition, reference to Schedule A-11 shall be added to a) the meaning “Related Services”, and b) the meaning of “Software”.
 
  5.   For purposes of this Amendment, “Wireless Handsets” means the devices that will be supported by the VMM client as listed in Section 8, Table 2 of Schedule A-11.
 
  6.   Acceptance.
  6.1   The acceptance criteria shall be as follows:
    Unless agreed in writing through the Change Management Process (“CMP”) as described in Section 7 of Schedule A-11 or a mutually agreed (in writing by electronic mail or other written correspondence) design change, all prior-version functionality shall continue in subsequent releases
 
    Unless agreed in writing through the CMP or a mutually agreed (in writing by electronic mail or other written correspondence) design change, features performance shall not be adversely affected in subsequent releases
 
    Unless agreed in writing through the CMP or a mutually agreed (in writing by electronic mail or other written correspondence) by Verizon and SMSI design change, the release will include all functionality specified in Schedule A-11 for the particular Milestone
  6.2   For Milestones 1 and 3, Verizon will provide to SMSI a list of defects no less [****] prior to the release delivery dates set forth in Section 9 of Schedule A-11. SMSI shall resolve [****] of all such defects, and any defects in the highest three severity categories as reported by Verizon must be closed or have a mutually agreed upon plan of resolution. All software, services and/or other deliverables (the “Deliverables”) for Milestones 1 and 3 shall be accepted in writing submitted by Verizon to SMSI (which may be provided by electronic mail). Verizon agrees to provide SMSI a written (either by electronic mail or other written correspondence) acceptance or rejection within [****] from the date the Milestone Deliverable(s) are delivered. Verizon agrees not to commercially release the Deliverables for Milestones 1 and 3.
 
  6.3   All Deliverables, excluding Milestones 1 and 3 in Schedule A-11, shall be accepted or rejected by Verizon in accordance with the terms of the Agreement, by providing SMSI with an executed Master Release Authorization (“MRA”) in a form substantially the same as Exhibit A to Schedule A-11. The failure of Verizon or any third party engaged by Verizon to timely provide any item necessary for SMSI to complete any Deliverable shall not be reason for Verizon to hold SMSI responsible for failing to achieve a milestone for such Deliverable. In the event there is any change to Schedule A-11 that affects resources, costs, milestones, Deliverable(s) or quality of the project described in this Amendment 9, the Parties shall utilize the CMP. If Verizon commercially releases the Deliverables in Milestones 2, 4, 5 or 6 prior to delivering a written acceptance to SMSI, then such Deliverables shall be deemed accepted on the date of Verizon’s commercial release. For the avoidance of
Master Software License and Distribution Agreement, Confidential Amendment No. 9

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**** Confidential Treatment has been requested for certain redacted provisions of this exhibit. The redacted provisions are identified by asterisks and enclosed by brackets. The confidential portions have been filed separately with the Securities and Exchange Commission.


 

Amendment 9 AGR-002139-2009
Master Agreement 750-33576-2001(Contract No. 220-00-0134)
      doubt, maintenance releases shall not be deemed accepted upon delivery or constitute acceptance of the next milestone.
 
  6.4   In the event that SMSI does not receive written acceptance or rejection within [****] of the delivery of Release I, Release I will be deemed accepted by Verizon. In the event that SMSI does not receive written acceptance or rejection within [****] of the delivery of each subsequent Release, then such Release will be deemed accepted by Verizon.
  7.   [****]
  8.   SMSI has procured each of the commercial Wireless Handsets in the quantities set forth in Section 8 of Schedule A-11 to allow for device testing and integration purposes. Verizon will make commercially reasonable efforts to reimburse SMSI for these devices in the amount of [****] within [****] of execution of this Amendment In the event a CR is entered into for support of additional wireless handsets, Verizon shall make commercially reasonable efforts to provide such pre-commercial wireless handset devices to SMSI at least [****] prior to the wireless handset device’s commercial launch date. This commercial launch date shall be at the sole discretion of Verizon.
 
      The foregoing Wireless Handsets shall be owned by Verizon.
Master Software License and Distribution Agreement, Confidential Amendment No. 9

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**** Confidential Treatment has been requested for certain redacted provisions of this exhibit. The redacted provisions are identified by asterisks and enclosed by brackets. The confidential portions have been filed separately with the Securities and Exchange Commission.


 

Amendment 9 AGR-002139-2009
Master Agreement 750-33576-2001(Contract No. 220-00-0134)
  9.   Certain Third Party License Fees: Verizon will pay the following amounts to SMSI in connection with certain third party intellectual property rights, to the extent SMSI actually incurs such fees:
 
      Typeface data for the [****] and [****] fonts from [****], for the VMM UI: [****] annual license fee + applicable taxes on licensee fees actually incurred by SMSI (payable upon execution of this Amendment and each anniversary thereafter).
 
      [****] Patent License from licensor [****] — (Including: [****] — does not include [****]) [****] or then-current maximum annual license fee [****] + applicable taxes on licensee fees actually incurred by SMSI (payable upon execution of this Amendment and each anniversary thereafter).
 
      [****] Patent License from licensor [****]:
    0 [****] unique VMM client downloads per calendar year ([****]) — no royalty
 
    [****] unique VMM client downloads per calendar year ([****] )[****] + applicable taxes on licensee fees actually incurred by SMSI
 
    Maximum annual payment for sales that occur between [****] + applicable taxes on licensee fees actually incurred by SMSI;
 
    Maximum annual payment for sales that occur between [****] + applicable taxes on licensee fees actually incurred by SMSI; and
 
    Maximum annual payment for sales following [****] + applicable taxes on licensee fees actually incurred by SMSI.
      [****] Patent License from [****] :
    0 [****] — unique VMM client downloads per calendar year — no royalty;
 
    [****] Units — unique VMM client downloads per calendar year - [****] + applicable taxes on license fees actually incurred by SMSI;
 
    [****] — unique VMM client downloads per calendar year - [****] + applicable taxes on license fees actually incurred by SMSI; and
 
    Maximum annual payment for sales per each calendar year of 2009 and 2010 is [****] + applicable taxes on license fees actually incurred by SMSI.
 
    For purposes of the foregoing, “Unit” means each [****] , whether one or both are incorporated in the VMM client.
      [****] music recognition service*:
  i.   [****] per acquired license for [****] lookup capability embedded with the VMM client + applicable taxes on license fees actually incurred by SMSI
Master Software License and Distribution Agreement, Confidential Amendment No. 9

- 4 -

**** Confidential Treatment has been requested for certain redacted provisions of this exhibit. The redacted provisions are identified by asterisks and enclosed by brackets. The confidential portions have been filed separately with the Securities and Exchange Commission.


 

Amendment 9 AGR-002139-2009
Master Agreement 750-33576-2001(Contract No. 220-00-0134)
  ii.   [****] per acquired license upgrade that adds [****] capability in addition to [****] lookup capability + applicable taxes on license fees actually incurred by SMSI
 
  iii.   [****] per acquired license for both [****] capability and [****] capability embedded with the VMM client + applicable taxes on license fees actually incurred by SMSI
 
  *   These amounts shall be invoiced and are payable with the Software License Fees described in Section 11.
  10.1   As of the Effective Date of this Amendment 9, and solely with respect to Release I, Verizon represents, warrants and covenants to SMSI that Verizon has identified all third party software necessary for SMSI, Verizon and its customers, to access, use, install, test, duplicate, and integrate such third party software in connection with VMM and the VMM online services described in Schedule A-11, except as set form in Section 9, above.
 
  10.2   As of the Effective Date of this Amendment 9, and solely with respect to Release I, SMSI represents, warrants and covenants to Verizon that SMSI has acquired all rights and licenses necessary to enable Verizon and its customers to access, use, install, test, duplicate and integrate VMM and the VMM online services described in Schedule A-11.
 
  10.3   For all releases following Release I, each Party represents, warrants and covenants to the other that: a) each Party shall assist the other in obtaining all rights and licenses necessary to enable Verizon and its customers to obtain, access, use, install, test, duplicate and integrate VMM and the VMM online services described in Schedule A-11; and b) they will negotiate in good faith the allocation of fees and expenses (if any) for same.
 
  10.4   The parties restate and reaffirm their respective indemnification obligations under the Agreement; provided, however, neither SMSI nor Verizon shall have any indemnification obligations to each other with respect to any patent rights licensed by [****].
Master Software License and Distribution Agreement, Confidential Amendment No. 9

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**** Confidential Treatment has been requested for certain redacted provisions of this exhibit. The redacted provisions are identified by asterisks and enclosed by brackets. The confidential portions have been filed separately with the Securities and Exchange Commission.


 

Amendment 9 AGR-002139-2009
Master Agreement 750-33576-2001(Contract No. 220-00-0134)
  11.   [****]
 
  12.   For the purposes of this Amendment 9, an “Active User” of the VMM client is defined as a user who actually engages in any of the Tracked Usage Events indicated below in a monthly period during which this Amendment remains effective. The Parties understand and agree that if a user who was an Active User in one month does not engage in any of the Tracked Usage Events in a given subsequent month or months thereafter, such user shall not be considered an Active User for any such month(s) for the purposes of calculating fees under this Amendment 9.
 
      When the VMM client launches for the first time, a unique ID for that software instance will be generated and stored in the AppData directory of the computer. This unique ID will be used to track all subsequent usage of the unique end-user instance of the VMM client.
Master Software License and Distribution Agreement, Confidential Amendment No. 9

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**** Confidential Treatment has been requested for certain redacted provisions of this exhibit. The redacted provisions are identified by asterisks and enclosed by brackets. The confidential portions have been filed separately with the Securities and Exchange Commission.


 

Amendment 9 AGR-002139-2009
Master Agreement 750-33576-2001(Contract No. 220-00-0134)
      SMSI will collect usage metrics in the background solely for the events listed below as users use the VMM client and as required for accounting and/or auditing of third party license fees. The usage metrics will be sent periodically to SMSI’s server if the user is online or saved on the computer if the user is offline. For prolonged offline use, the usage is tracked for the current month by logging and time stamping the events in a log file stored in the application directory. The VMM client reports the activity log periodically to the SMSI server. The following usage events will be collected and logged to determine an Active User of the VMM client solely for the purposes of calculating fees under this Amendment 9.
 
      Tracked Usage Events:
  1.   Playback of Music or video or viewing of photos
 
  2.   Ripping from or burning media to a CD-ROM
 
  3.   Purchase or download media from an online media store or the Verizon branded online storage service
 
  4.   Transfer data to and from the Verizon branded online storage service
 
  5.   Transfer data to and from a mobile device
      SMSI will provide Verizon quarterly reports on the number of Active Users of the VMM client by month or as mutually agreed upon by both parties, and these reports will be the basis for the quarterly invoicing of the Additional Per User Fees, if any. All invoices are due and payable [****] from Verizon’s receipt.
 
      The above usage metrics shall constitute Verizon Confidential Information under the Agreement, and shall not be used or disclosed by SMSI for any purpose other than to track the usage events set forth above to generate said quarterly reports, nor shall such usage metrics be used or disclosed by SMSI in such a way as to reveal to any third party (i) the identity or information regarding any particular user or a user’s use of the VMM client (ii) the identity of a user or such user’s usage level of the VMM client, or (iii) or allow a third party (other than third party licensors under Section 9) to extrapolate Verizon’s usage or distribution volume of the VMM service (except as may be required for accounting and auditing of third party license fees under Section 9).
 
      SMSI represents, warrants, and covenants to Verizon that, in connection with the services performed by SMSI pursuant to this Agreement, SMSI shall not, without Verizon’s prior written consent, store and access any Verizon customer information at a site located outside of the United States. Notwithstanding the foregoing, if SMSI desires to store and access Verizon customer information at a site located outside the United States to provide services under this Agreement, SMSI will promptly notify Verizon and the Parties will discuss in good faith an exception to the preceding sentence that will conform to Verizon’s requirements, including providing any required notice to the United States government.
 
      The Parties agree that SMSI does not require and Verizon will not intentionally provide SMSI with any personally identifiable Verizon customer information in connection with this Agreement. To the extent that either Party becomes aware
Master Software License and Distribution Agreement, Confidential Amendment No. 9

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**** Confidential Treatment has been requested for certain redacted provisions of this exhibit. The redacted provisions are identified by asterisks and enclosed by brackets. The confidential portions have been filed separately with the Securities and Exchange Commission.


 

Amendment 9 AGR-002139-2009
Master Agreement 750-33576-2001(Contract No. 220-00-0134)
      that SMSI has received any personally identifiable Verizon customer information, such Party will as soon as commercially reasonable, notify the other Party of such receipt, and SMSI will treat such personally identifiable Verizon customer information as Verizon Confidential Information, and return or delete such information upon Verizon’s request. Provided SMSI is compliant with its obligations with respect to personally identifiable Verizon customer information under this Section, SMSI shall not be held responsible or liable in connection with any personally identifiable Verizon customer information provided to SMSI.
 
  13.   No download hosting services are provided under this Amendment. Any download hosting services will be provided pursuant to a separate amendment/addendum to the Website Professional Services Agreement dated November 8, 2006 for such services.
 
  14.   In addition to the fees set forth in this Amendment 9, Verizon agrees to reimburse SMSI for reasonable expenses incurred in the performance of its obligations under this Agreement. SMSI will be required to provide satisfactory documentation of expenses incurred and shall submit requests for payment of expenses with documentation to Verizon in accordance with the billing procedures outlined in the Agreement. All expenses in excess of [****] and all expenses for travel must be approved in writing by Verizon before being incurred or Verizon will not pay for such expenses. In addition, the terms of Exhibit B, Reimbursable Expense Guidelines, shall apply.
 
  15.   Maintenance and Support. Maintenance and Support for the VMM client is solely as set forth in Section 11 of Schedule A-11 attached hereto.
 
  16.   Technical Support. Technical Support for the VMM client is set forth in Exhibit E of Schedule A-11 attached hereto.
 
  17.   The following is added as a new Section 2.13 of the Agreement:
 
      “2.13 Subject to the terms and conditions of this Agreement, as modified from time to time, (including but not limited to payment of applicable fees), SMSI grants to Verizon an exclusive right to use the software product known as V CAST Media Manager, only as a whole, in object code form. SMSI retains all intellectual property rights in modules and components of the software product known as V CAST Media Manager, except for the specifications contained in the ‘[Smith Micro] Response to Product Specification for Verizon Vault Phase I — [****] document referenced in Section 2 of Schedule A-l1, Verizon Owned Modules, any Works for Hire for future customization projects for V CAST Media Manager identified in accordance with the terms of Section 10.4.6, any future specifications therefor created by Verizon pursuant to Section 10.4.7, and any rights heretofore assigned to Verizon by SMSI. For the avoidance of doubt, no intellectual property rights other than those specifically set forth in this Agreement shall be implied by SMSI’s license grant to Verizon under this Agreement. Verizon hereby grants to SMSI a non-exclusive, royalty-free, retroactive and prospective license to use the software product known as V CAST Media Manager, Verizon Owned Modules, the
Master Software License and Distribution Agreement, Confidential Amendment No. 9

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**** Confidential Treatment has been requested for certain redacted provisions of this exhibit. The redacted provisions are identified by asterisks and enclosed by brackets. The confidential portions have been filed separately with the Securities and Exchange Commission.


 

Amendment 9 AGR-002139-2009
Master Agreement 750-33576-2001(Contract No. 220-00-0134)
      aforementioned specifications and any Works Made for Hire (as described in this Section), solely in the development of Software, and support thereof, for Verizon during the term of this Agreement, which license grant shall not be construed to imply any ownership rights to Verizon except as expressly set forth herein.”
 
  18.   The following is added as a new Section 3.2 c. of the Agreement:
 
      “3.2 c Verizon may terminate this Amendment for convenience [****] prior written notice to SMSI. In the event this Amendment is terminated pursuant to this Section or the Agreement is terminated by SMSI due to Verizon’s breach while this Amendment is in effect (in either case within two (2) years from the Effective Date — the “Termination Period”), [****].
 
  19.   SMSI acknowledges Verizon’s right to independently develop technologies that do not infringe on SMSI’s intellectual property rights, so long as VZ does not violate any of its obligations under this Amendment and Agreement in connection with such development.
 
  20.   Verizon agrees that each end user’s use of the Software shall be subject to the terms of the end user license agreement (“EULA”) in the form attached hereto as Exhibit D. The EULA must be presented in a manner such that it must be accepted by the end user prior to the initial use of the Software. SMSI may alter the EULA at any time with sixty (60) days prior written notice to Verizon and SMSI will provide such updated EULA to Verizon for presentation to future end users. In the event SMSI is unable to provide sixty (60) days notice, then SMSI shall provide Verizon with as much notice as is commercially reasonable under the circumstances. The EULA that is part of the VMM client and is accepted by the end user does not include Schedule 1 attached to Exhibit D. Schedule 1 attached to Exhibit D (End User License Agreement) of this Amendment 9 may be updated from time to time as part of a CR.
 
  21.   The terms and conditions related to background checks as set forth in Schedule H shall be added to the Agreement.
Master Software License and Distribution Agreement, Confidential Amendment No. 9

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**** Confidential Treatment has been requested for certain redacted provisions of this exhibit. The redacted provisions are identified by asterisks and enclosed by brackets. The confidential portions have been filed separately with the Securities and Exchange Commission.


 

Amendment 9 AGR-002139-2009
Master Agreement 750-33576-2001(Contract No. 220-00-0134)
  22.   Except as specifically provided hereunder, the terms and conditions of the Agreement shall remain in full force and effect as set forth therein.
IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to be executed by their duly authorized officers or representatives.
                     
VERIZON CORPORATE SERVICES       SMITH MICRO SOFTWARE, INC.    
GROUP INC.       (“SMSI”)    
 
                   
By:
  /s/ John Greer       By:   /s/ William W. Smith, Jr.    
Name:
 
 
John Greer
      Name:  
 
William W. Smith, Jr.
   
Title:
  Executive Director       Title:   President and Chief Executive Officer    
Date:
  11/10/09           Smith Micro Software, Inc.    
        Date:   11/4/09    
Master Software License and Distribution Agreement, Confidential Amendment No. 9

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EX-31.1 3 a55282aexv31w1.htm EX-31.1 exv31w1
EXHIBIT 31.1
CERTIFICATION PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
(18 U.S.C. SECTION 1350)
I, William W. Smith, Jr., certify that:
     1. I have reviewed this Amendment No. 1. to Annual Report on Form 10-K of Smith Micro Software, Inc.; and
     2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report.
         
     
Date: April 28, 2010  /s/ William W. Smith, Jr.    
  William W. Smith Jr.   
  President and Chief Executive Officer
(Principal Executive Officer
 

 

EX-31.2 4 a55282aexv31w2.htm EX-31.2 exv31w2
         
EXHIBIT 31.2
CERTIFICATION PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
(18 U.S.C. SECTION 1350)
I, Andrew C. Schmidt, certify that:
     1. I have reviewed this Amendment No. 1. to Annual Report on Form 10-K of Smith Micro Software, Inc.; and
     2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report.
         
     
Date: April 28, 2010  /s/ Andrew C. Schmidt    
  Andrew C. Schmidt   
  Vice President and Chief Financial Officer
(Principal Financial Officer)
 
 
 

 

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