DEVELOPMENT AND LICENSE AGREEMENT, dated as of April 15, 1999 (the "Agreement"),
between The Translation Group, Ltd., a corporation organized under the laws of
the State of Delaware ("TTGL") with an office at 00 Xxxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxx Xxxxxx, 00000, and ESTEAM AB, a corporation organized under the
laws of Sweden ("EST") with an office at on 00 00 Xxxxxxxx, Xxxxxx, Xxxxxx.
WITNESSETH
WHEREAS, EST is a software development company specializing in the
development of computer automated language translation systems and tailoring
such systems to specific applications;
WHEREAS, EST has developed, uses and continues to improve a computer
automated language translation software system know as the "BTR System";
WHEREAS, EST has demonstrated its technical ability by delivering a
computer automated language translation for patent/trademark applications to
CompuMark (a Xxxxxxxx Company);
WHEREAS, EST wishes to develop certain computer translation programs
("Applications") hereinafter described and wishes TTGL to assist in the
development of and marketing of said Applications, and TTGL is willing to do so,
all on the terms hereinafter set forth;
WHEREAS, EST wishes to exclusively license to TTGL and TTGL wishes to
exclusively license from EST for a period of (15) years all rights, title and
interest in certain Applications and accompanying Manuals developed using the
BTR System and modifications, improvements and adaptations thereto;
NOW, THEREFORE, EST and TTGL agree as follows:
1. DEFINITIONS:
1.1 AFFILIATE. A company owned or controlled by another company.
1.2 APPLICATION. An Application is a customized version of the BTR System
and its modifications, improvements and adaptations to be used in performing
translations of specific text documents in a particular domain. An Application
will be defined by the corresponding Application Term Sheet(s).
1.2A IDENTIFIED APPLICATIONS. TTGL has identified four (4) Applications
("Identified Applications") that EST and TTGL believe can be developed using the
BTR System and modifications, improvements and adaptations thereto, will be
commercially viable and which EST and TTGL have agreed will be the subject
matter of an exclusive license from EST to TTGL. The Identified Applications are
set forth in Schedule "1" attached hereto.
1.2B ADDITIONAL APPLICATIONS. TTGL has the right to identify four (4)
Applications in addition to the Identified Applications ("Additional
Applications") that it believes can be developed using the BTR System and
modifications, improvements and adaptations thereto and will be commercially
viable.
1.2c Identified Applications and Additional Applications are sometimes
collectively referred to as "Applications" which term will include any
modifications, improvements and adaptations thereof.
1.3 BTR SYSTEM. The BTR System is a computer software system developed by
EST, which when applied to appropriate hardware automatically performs language
translations without any human intervention. The BTR System is set forth with
more particularity in Exhibit "A" attached hereto and incorporated herein.
1.4 COMPUTER HARDWARE. Computer hardware is a tangible computational unit
designed to perform very large numbers of computations in a very short time.
Hardware includes, among other things, a central processing unit, displays,
keyboards, xxxxxx, printer, various memory and data storage units.
1.5 COMPUTER SOFTWARE. Computer software is a set of written instructions
allowing and directing the performance of computations on computer hardware.
Software may be "off-the-shelf" such as Oracle database management software, or
proprietary, which is created for a specific purpose, but not commercially
available.
1.6 EXCLUSIVE LICENSE. The grant of an exclusive worldwide License by EST
to TTGL for the four Identified Applications, the four Additional Applications
and accompanying Manuals for a period of fifteen (15) years ("License Term").
1.7 LANGUAGE RESOURCES. Language resources include those databases or other
bodies of data necessary to conduct a Project or develop an Application. They
may include dual language dictionaries, glossaries, terminology, and already
translated texts in multiple languages.
1.8 MANUAL. A Manual for each Application containing instructions for the
use of that Application which term will include any modifications, improvements
and adaptations thereof.
1.9 OPTION TERM. The Option Term means the period that the Option shall be
exercisable and valid.
1.10 PROJECT. A Project is a development task, which is narrow in scope and
of short duration. A Project is intended to test the applicability of the BTR
System in a particular topic, or it may be to solve a problem. A Project may
evolve into an Application.
1.10a Applications and Projects are sometimes collectively referred to
as "Development Programs" unless specifically referred to.
2. OPTION.
2.1 GRANT OF OPTION. For good and valuable consideration EST hereby grants
TTGL an Option to extend this Agreement for an additional three years for the
purpose of completing the Identified Applications and/or developing four
Additional Applications, as the case may be.
2.2 EXERCISE OF OPTION. The Option must be exercised by giving written
notice to EST at any time prior to the expiration of the Option Term. Said
written notice shall identify Application(s) that will be completed and/or
developed, and to the extent possible, be accompanied by Program Development
Term Sheet(s).
2.2a In the event the Agreement is extended for an additional three-year
period, the same terms and conditions set forth in this Agreement shall apply.
Provided that TTGL's ******* Minimum monthly guarantee shall be increased to
******* but shall not be effective or operative during any month EST secures
funding from the EU in an amount greater than **** of said *******.
2.3 OPTION TERM. The Option Term shall be for a period of three (3) years
and shall commence upon the execution of this Agreement and shall remain valid
for three (3) years thereafter.
3. SCOPE OF WORK. EST shall provide development services in accordance with
the terms and conditions of this Agreement and in accordance with the
Application Term Sheet(s) and Project Term Sheet(s) which are or will be
attached to and made part of this Agreement.
3.1 APPLICATIONS. Applications will be described in Application Term Sheets
outlining the Development Program, including but not limited to, the system
specifications which are the targets of the development, and milestones defined
both by time and achievement and projected development costs. The first
Application Term Sheet is the initial Application Term Sheet for the Identified
Application of Financial Information and is attached as Exhibit "B".
3.2 PROJECT. Projects will be described in Project Term Sheets setting
forth a statement of the problem to be solved or a question to be answered
relating to the capability of the BTR System to solve certain translation
problems, including but not limited to, the specifications of the problem to be
addressed, and milestones defined both by time and achievement and projected
development costs. The first Project Term Sheet is the initial Project Term
Sheet for the Identified Application of Financial Information and is attached as
Exhibit "C".
4. LICENSE.
4.1 APPLICATIONS AND MANUALS. EST will use its best efforts to develop
Applications and Manuals that meet the specifications set forth in the Program
Development Term Sheet. EST will deliver each Application and the Manual
therefor to TTGL not later than the delivery date specified in relevant Program
Development Term Sheet.
4.1a Each Application will operate on computer agreed upon by TTGL and
EST in the relevant Program Development Term Sheets ("Computers").
4.2 GRANT OF EXCLUSIVE LICENSE. For good and valuable consideration EST
hereby grants TTGL the exclusive, irrevocable, worldwide license to financially
exploit the four (4) Identified Applications, the four (4) Additional
Applications and accompanying Manuals during the License Term and subject to the
terms and provisions of this Agreement. The Exclusive License granted to TTGL
under this Section 4.2 is subject to the following exceptions: 1) EST may use
any of the eight (8) Applications but may not sell, license, rent, market,
distribute or otherwise exploit any Application during the relevant License
Term.
4.3 DURATION OF LICENSE. TTGL's License to the Application(s) and Manual(s)
shall commence upon the execution of this Agreement and shall extend until the
fifteenth (15th) anniversary from the date of TTGL's acceptance of each
Application successfully developed by EST. The periods of fifteen (15) years
under this Section 4.3 will survive the termination of this Agreement ("License
Term(s)"). Provided that, TTGL's right to financially exploit a particular
Application under said License shall only become valid upon finalized funded
development for said Application. Upon the expiration of each fifteen (15) year
period the relevant License shall be converted to a Royalty-Free Non-Exclusive
License.
4.4 ACCEPTANCE AND REJECTION. Upon receipt of each Application and Manual,
whether initially or on resubmission, TTGL will test the Application and examine
the Manual and will accept the same if they are satisfactory. TTGL will not
unreasonably withhold or delay its acceptance. If TTGL finds either the
Application or Manual or both unsatisfactory, TTGL will return the same to EST
with an explanation of the changes it desires. EST will use its best efforts to
make the changes requested by TTGL, and, upon completion of the changes, EST
will resubmit the Application, the Manual or both, as the case may be, to TTGL
for acceptance. If, within ninety (90) days after the application is delivered,
TTGL fails to notify EST of any changes that it wishes in the Application or
Manual, TTGL will be deemed to have accepted the Application or Manual. If TTGL
accepts the modified version, then all the provisions of this Agreement will
apply to that Application and to the Manual therefor as if TTGL had initially
accepted them.
4.5 Upon delivery to and acceptance by TTGL of an Application and Manual or
a modification to either, EST will furnish TTGL, without charge, (i) two master
disks from which copies of the Application may be produced for use on the
Computers, (ii) the object codes for the Application, and (iii) the mechanicals
or master copies of the Manual from which printed copies can be made.
4.6 Notwithstanding acceptance of an Application and Manual by TTGL, EST
will correct any errors or defects in the Application for one year following the
acceptance of the final Application or the duration of this Agreement and any
extensions hereto, whichever is earlier.
4.7 For purposes of marketing each Application and Manual which TTGL
accepts under this Agreement, TTGL will, at its expense, produce copies of the
Application from the master disks and cause copies of the Manual to be printed.
TTGL may add to the Applications devices to guard against unauthorized copying,
but TTGL does not warrant that any such device will prevent such copying.
4.8 During the License Term, EST will not produce, except for that
Application, any computer program dealing with the topic or subject matter of
that Application.
4.9 Royalty;
(i) During the License Term TTGL will pay EST a royalty of ** of TTGL's
"Net Sales" (as hereinafter defined) from any sale, rental or other exploitation
by TTGL of any Application or Manual. For purposes of this Agreement, the term
"Net Sales" means all monies received by TTGL from the sale, rental or
exploitation of the Applications and Manuals less credits or refunds for items
returned and excluding, commissions, discounts, allowances, duties and freight
charges, sales and use taxes, tariffs, duties and other governmental charges
applicable to the sale, and normal and customary handling charges. TTGL's
obligation to pay EST said ** royalty shall be binding upon TTGL and its
successors, heirs, executors, administrators and legal representatives and inure
to the benefit of EST's successors and assigns.
(ii) TTGL will pay the Royalties to EST semiannually within (60) sixty
days following each six month period in a Royalty Year. For purposes of this
Agreement, a Royalty Year will commence at the time any commercial Application
first generates revenue.
(iii) TTGL will maintain complete and accurate records of all Net Sales
of the Applications and Manuals. EST may examine, at its own expense, any copy
of such records on reasonable notice. Provided, however, EST's right to conduct
an audit of any copy of such records shall be limited to once a year.
(iv) TTGL may credit against amounts which it owes EST under this
Section any overpayments that TTGL has made to EST.
(v) TTGL's obligation to pay royalties under this Agreement with
respect to the exploitation of any Application in any jurisdiction will cease
for such Application upon a determination by a court of competent jurisdiction,
after all appeals, if
any, and after the time for any appeal had expired, that the Applications is not
entitled to copyright in that jurisdiction or that the copyright to the
Application in that jurisdiction is otherwise invalid. The provisions of this
Section are without prejudice to any claim TTGL may have for breach of warranty
under this Agreement.
5. REPRESENTATIONS OF EST. EST represents and warrants to TTGL:
5.1 EST will use its best efforts to complete Development Programs on time
and within budget.
5.2 EST has on its premises and available for its use all of the computer
hardware and computer software necessary to conduct all contemplated Development
Programs in an efficient manner, or will promptly notify TTGL of the need for
such computer hardware and computer software.
5.3 EST has on its premises and available for its use all of the language
resources necessary to conduct all contemplated Development Programs in an
efficient manner, or will promptly notify TTGL of the need for such language
resources.
5.4 At all times during the term of this Agreement, EST will assure
priority scheduling for TTGL work ahead of any other work which EST may perform
for others.
5.5 Additional Warranties and Representations. EST represents and warrants
to TTGL:
(i) Except to the extent set forth in Section 5.5(ii), EST has all of
the rights in and to the BTR System;
(ii) EST has granted a limited license ("Limited License") to
CompuMark/Xxxxxxxx to use and distribute the BTR System within the
Patent/Trademark sector of the Intellectual Property Right market (A copy of
said Limited License is attached hereto Exhibit "D");
(iii) this Agreement, copy of which has been provided to
CompuMark/Xxxxxxxx, does not give rise to any claims by CompuMark/Xxxxxxxx
against EST for any violation or breach of any obligation that EST may have to
CompuMark/Xxxxxxxx and does not give rise to any claims by CompuMark/Xxxxxxxx
against TTGL (A copy of a letter from an Authorized Representative of
CompuMark/Xxxxxxxx reflecting the accuracy of the substance of this Section
5.5(iii) is attached hereto as Exhibit "E");
(iv) to the best of its knowledge, EST warrants to TTGL (i) that each
Application and Manual will not violate or infringe any patent, copyright,
trademark, service xxxx, right of privacy or other right, will not contain any
libelous or defamatory material or any material which EST is not duly authorized
to use, and will not misuse or misappropriate any trade secret or confidential
information, (ii) that any approvals or permissions required in connection with
the production, manufacture, use or exploitation
of each Application and Manual have been obtained or will have been obtained
prior to the initial submission to TTGL and will be and will remain in effect
during the License Term with respect to the applicable Application and Manual
(but this warranty does not apply to any permission required with respect to a
computer operating system or programming utility, which permission TTGL is
required to obtain), (iii) that EST has the right, power and authority to grant
to TTGL the rights it has granted under this Agreement, (iv) that the
Applications and Manuals will all be original and none will be in the public
domain, (v) that each of the Applications and Manuals will be entitled to
copyright and to the protections afforded such materials by copyright law and
(vi) that each Application will operate properly on the Computer for which it is
designed, will be free from defects, will not cause damage to the Computers for
which it is designed or to any data stored in those Computers, and will conform
to the description thereof and will operate in accordance with the instructions
and specifications therefor contained in the Manual;
(v) EST will use its best efforts to insure the Identified Applications
and the Additional Applications will conform to the description thereof and will
operate in accordance with the Program Development Term Sheets;
(vi) there is no litigation or claim pending or threatened with respect
to the BTR System;
(vii) the execution, delivery and performance of this Agreement has
been duly authorized by EST's board of directors. EST has all requisite
capacity, power and authority to execute and deliver this Agreement and each
other agreement, document instrument or certificate contemplated by this
Agreement or to be executed in connection with the consummation of the
transactions contemplated by this Agreement, and to perform fully its
obligations hereunder and thereunder. This Agreement has been duly and validly
authorized, executed and delivered by EST and this Agreement constitutes legal,
valid and binding obligations of EST, enforceable against EST regardless of
whether enforcement is sought in a proceeding at law or in equity.
(viii) TTGL alone will have the Exclusive License throughout the world
to the Identified Applications and Additional Applications and the sole right to
apply for patents, copyrights, trademarks, service marks and other rights with
respect to the Identified Applications, Additional Applications and Manuals
during the License Term.
(ix) The representations and warranties of EST will survive this
Agreement. EST will indemnify TTGL against any liability and will hold TTGL
harmless from and pay any loss, damage, cost and expense (including, without
limitation, legal fees, court costs and the cost of appellate proceedings) which
TTGL incurs arising out of a breach of any of said representations and
warranties or any claim against TTGL alleging facts which, if true, would result
in a breach of any said representations and warranties.
(x) The representations and warranties, obligations under this
Agreement and any obligations of indemnity of EST shall be assignable, and shall
be binding upon EST and its successors, heirs, executors, administrators and
legal representatives and inure to the benefit of TTGL's successors and assigns.
(xi) EST shall not use the BTR System for translation projects
competitive with any Application as defined herein, currently, or which from
time to time may be, produced, distributed or marketed by TTGL or any affiliated
entity without prior written approval from TTGL.
6. REPRESENTATIONS OF TTGL. TTGL represents and warrants to EST:
6.1 TTGL will use its best efforts to identify and define four (4)
Additional Applications for EST to develop.
6.2 TTGL will use its best efforts to commercialize such Applications which
EST successfully develops.
6.3 TTGL recognizes that EST's obligation to afford priority to TTGL's
Development Programs over work for others may result in EST experiencing
financial hardships in meeting its basic operating expenses of approximately
********** per month ("Operating Expenses"). Accordingly, TTGL guarantees that
it will pay EST a minimum of ******* per month on or before the 15th day of each
month during the term of this Agreement for EST's Operating Expenses ("*******
Minimum"). Provided further that, notwithstanding anything herein to the
contrary, TTGL's monthly obligation to pay EST said ******* Minimum shall
terminate upon the second anniversary of this Agreement or if EST secures
funding from the EU in an amount greater than **** of said ******* Minimum,
whichever is later.
6.4 During the Term of this Agreement TTGL will provide development funding
in addition to the ******* Minimum for any Development Program that TTGL may
request EST to develop. Such development funding may include language resources,
computer hardware and computer software and any other development costs that
TTGL and EST may jointly deem necessary for a Development Program.
6.5 During the Term of this Agreement TTGL will provide funding for
additional Operating Expenses incurred by EST above the ******* minimum if EST
reasonably demonstrates that its actual Operating Expenses exceed ******* per
month as a direct result of any Development Program for TTGL, i.e., EST works on
two Development programs simultaneously.
6.6 Additional Warranties and Representations. TTGL represents and warrants
to EST:
(i) the execution, delivery and performance of this Agreement has been
duly authorized by TTGL's board of directors. TTGL has all requisite capacity,
power and authority to execute and deliver this Agreement and each other
agreement,
document, instrument or certificate contemplated by this Agreement or to be
executed in connection with the consummation of the transactions contemplated by
this Agreement, and to perform fully its obligations hereunder and thereunder.
This Agreement has been duly and validly authorized, executed and delivered by
TTGL and this Agreement constitutes legal, valid and binding obligations of
TTGL, enforceable against TTGL regardless of whether enforcement is sought in a
proceeding at law or in equity.
(ii) TTGL will indemnify EST against any liability and will hold EST
harmless from and pay any loss, damage, cost and expense (including, without
limitation, legal fees, court costs and the cost of appellate proceedings) which
EST incurs arising out of a breach of any of said representations and warranties
or any claim against EST alleging facts which, if true, would result in a breach
of any said representations and warranties.
6.7 TTGL and EST agree that EST shall have the right to use or otherwise
employ the BTR System in accordance with this Agreement for the following uses
and purposes;
(i) EST shall have the exclusive right to employ the BTR System to
either perform research and development projects for the EU Authorities or to
enter into contracts with the EU Authorities.
(ii) EST shall have the exclusive right to employ the BTR System to
perform projects for the CompuMark/Xxxxxxxx.
7. TERM AND TERMINATION.
7.1 The Term of this Agreement shall be three (3) years commencing on the
date of execution of this Agreement. Provided that the Term of this Agreement is
subject to TTGL's Option as well as the Termination provisions contained herein.
7.2 EST may terminate this Agreement upon 30 days written notice that TTGL
has failed to remit to EST the ******* Minimum in accordance with section 6.3 of
this Agreement. Provided that said notice of termination shall be without effect
in the event TTGL cures such failure to remit said ******* Minimum within 30
days from TTGL's receipt of said written notice.
7.3 Either party may terminate this Agreement upon 90 days written notice
after the first anniversary from the date of execution of this Agreement.
Provided further that, any notice given by EST under this Section will only be
effective upon the completion of any Development Programs currently in progress
and will not act to terminate the License Term.
7.4 Sections 4, 8 and 9 will survive such termination.
8. COPYRIGHT.
8.1 Subject to the rights granted to TTGL under this Agreement, EST will
own all copyright and all other proprietary rights in and to each Application
and Manual. EST will have the sole and exclusive right to register in its name
in the United States and elsewhere the copyrights applicable to each Application
and Manual. Without prejudice to EST's rights under Section 5(a), TTGL may, at
its expense, arrange to register in EST's name United States and, to the extent
TTGL deems advisable, foreign copyrights and renewals thereof for the
Application and Manual. EST will execute such documents and take such other
action as may be required to effect any such registration.
8.2 If, during the term of this Agreement, either party believes that any
copyright or other proprietary right in any Application or Manual is being
infringed or injured, such party will give written notice thereof to the other.
If, after consultation, the parties proceed jointly, then the cost and recovery
arising out of such prosecution shall be shared equally. If no agreement is
reached for joint action, TTGL may proceed as it sees fit, bearing all costs
incidental thereto and retaining all the benefits arising therefrom. If EST does
not proceed jointly with Licenses, EST will cooperate with TTGL and permit TTGL
to proceed in EST's name, at TTGL's own cost and for TTGL's benefits; and TTGL
will hold EST harmless from and pay all costs connected with said proceeding.
EST will not proceed on its own unless TTGL advises EST in writing that TTGL has
decided not to take any action in the matter. In such case, EST may proceed as
it sees fit, bearing all costs incidental thereto and retaining all the benefits
arising therefrom.
9. CONFIDENTIALITY.
9.1 TTGL hereto acknowledges and agrees that all information (the
"Confidential Information") concerning the BTR System and modifications,
improvements and adaptations thereto not resulting from Development Projects for
TTGL, is highly confidential and that EST will suffer irreparable damage if the
Confidential Information is disclosed to third parties. TTGL will protect the
Confidential Information with equal caution as if it were its own.
9.2 EST hereto acknowledges and agrees that all information (the
"Confidential Information") concerning modifications, improvements and
adaptations to the BTR System resulting from Development Projects for TTGL,
Development Programs, Applications, Manuals, Project Term Sheets and Application
Term Sheets is highly confidential and that TTGL will suffer irreparable damage
if the Confidential Information is disclosed to third parties. EST will protect
the Confidential Information with equal caution as if it were its own.
9.3 The parties shall not use the Confidential Information for any purpose,
other than for the purposes contemplated under the Agreements identified herein,
and, unless specifically authorized to do so under the Agreements identified
herein, neither party shall disclose, provide, or make available any of the
Confidential Information in any form to any person, except to employees,
consultants, marketing and sales agents, or other persons whose access is
necessary to enable the party to fulfill its obligations under the Agreements
identified herein.
9.4 Notwithstanding anything herein to the contrary, a party shall not be
deemed to have breached this Section if the said party can prove that the
Confidential Information at issue is information which, (i) is in the public
domain or becomes publicly available through no act or failure to act of said
party, (ii) was or is rightfully acquired by said party, or (iii) becomes
independently available to said party without breach of any Agreements
identified herein by said party and otherwise not in violation of the
non-breaching party's rights under any other Agreement.
10. NON-SOLICITATION & NON-COMPETITION. During the License Term, EST shall
not, except with the prior written approval of TTGL in each instance, directly
or indirectly, (i) hire, solicit, or encourage to leave the employ of TTGL or
any affiliate entity, any person employed by TTGL or any affiliated entity; (ii)
participate in the solicitation of any business of any type presently conducted
or which may from time to time be conducted by TTGL or any affiliated entity
from any person or entity which was, or which from time to time may be, a
customer of TTGL or any affiliated entity; (iii) be engaged or interested,
directly or indirectly, as an officer, director, stockholders (excepting less
than one (1%) percent interest in a publicly traded company), employee, partner,
individual proprietor, investor or consultant, or in any other manner or
capacity whatsoever, in any business that involves the production, distribution
or marketing of products or services competitive with any Application as defined
in the L & D Agreement, currently, or which from time to time may be, produced,
distributed or marketed by TTGL or any affiliated entity, in any place in which
TTGL or any affiliated entity conducts such a business. If any provision of
Section would be held to be unenforceable because of the scope, duration or area
of its applicability, the court making such determination shall have the power
to, and shall, modify such scope, duration or area, or all of them, to the
minimum extent necessary to make such modified form.
11. ENFORCEMENT OF CONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETITION
AGREEMENTS. EST hereby acknowledges that the TTGL will not have an adequate
remedy at law in the event of any breach by her of any provision of Section 9 or
10 of this Agreement and that TTGL will suffer irreparable damage and injury as
a result of any such breach. Accordingly, in the event of EST's breach or
threatened breach of any provision of Section 9 or 10 of this Agreement, EST
hereby consents to the granting of a temporary restraining order, preliminary
injunction and/or permanent injunction against it or any court of competent
jurisdiction prohibiting EST from committing or continuing any such breach or
threatened breach.
12. MISCELLANEOUS.
12.1 NOTICES. All notices which are required or may be given pursuant to
the terms of this Agreement shall be in writing and shall be deemed duly given
when delivered to the respective offices of TTGL and EST at the addresses
specified in this Agreement, unless notified otherwise of an address change in
writing at least thirty (30) days in advance.
12.2 HEADINGS. Headings of this Agreement are for convenience only and
shall not affect the interpretation of the terms of this Agreement.
12.3 WAIVER. If either party should waive any breach of any provision of
this Agreement, it shall not thereby be deemed to have waived any preceding or
succeeding breach of the same or any other provision hereof.
12.4 SEVERABILITY. It is the intent of the parties that in case any one or
more of the provisions contained in this Agreement shall be held to be invalid
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect the other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal, or unenforceable provision had
never been contained herein.
12.5 This Agreement shall be binding upon and inure to the benefit of EST
and its successors and assigns, including without limitation, any corporation
which may acquire all or substantially all of EST's assets and business or with
or into which EST may be consolidated or merged.
12.6 This Agreement shall be binding upon and inure to the benefit of TTGL
and its successors and assigns, including without limitation, any corporation
which may acquire all or substantially all of TTGL's assets and business or with
or into which TTGL may be consolidated or merged.
12.7 GOVERNING LAW. This agreement will be governed by the laws of the
State of New Jersey, U.S.A.
IN WITNESS WHEREOF, by their signature below, the parties hereto hereby agree to
the foregoing terms and conditions.
"EST" "TTGL"
By:_____________________ By:_____________________
Name:___________________ Name:___________________
Title:__________________ Title:__________________
SCHEDULE I
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A. FINANCIAL INFORMATION: Target Applications for automated translation in the
financial arena may include, but are not limited to:
- company annual reports - financial statements.
- quarterly reports - company research reports
- news releases - credit reports
- proxies - business section of newspapers
- initial public offerings/secondary - tv/cable financial news
- accounting standards - financial public relations
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B. MEDICAL/PHARMACEUTICAL: Target Applications for automated translation in the
medical arena may include, but are not limited to:
- medical device product labels
- drug "product inserts"
- technical paper abstracts
- Material Safety Data Sheet (MSDS) for pharmaceutical raw materials
- government regulations/rulings/news
- precis of medical trade press/journals/news
- financial application products
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C. ENVIRONMENTAL: Target Applications for automated translation in the
environmental arena may include, but are not limited to:
- Material Safety Data Sheets (MSDS) and their international equivalents
- International government regulations and news concerning air, water,
biological and solid pollutants, inclining levels, disposal,
transportation, remediation, etc.
- Certificates of Analysis or analogies documents reflecting instrumental
analyses of compounds or molecules
- Bills of Lading for shipments
- Standard Operation Procedures for manufacturers, processing and
handling chemicals and other compounds covered by environmental
regulations
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D. SOFTWARE GENERAL, SOFTWARE SPECIAL USE, SOFTWARE ERP AND TELECOMMUNICATIONS:
Target Applications for automated translation in the information technology
arena may include, but are not limited to:
- General Information Technology Application
- Translation of general software, e.g. operating systems
- Specified software, e.g. CAD/CAM software
- Enterprise Reservice Planning ("ERP") software, e.g.
manufacturing, accounting, supply chain management
- Telecommunications hardware and software including technical/operating
manuals and applicable software
- All above applications include translation of software itself, software
manuals, software "help," and software documentation
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EXHIBIT A
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Description of BTR System
EXHIBIT B
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INITIAL APPLICATION TERM SHEET FOR THE IDENTIFIED APPLICATION OF FINANCIAL
INFORMATION
Application #1
Topic: Financial Statement Translations
Code Name:
Target Specifications: System will automatically translate the
following with no human interaction:
Income Statement (P&L)
Balance Sheet
Cash Flow
Notes to Financial Statements
Bi-directional in the following languages:
English, French, German, Spanish, Portuguese, Italian.
Translation tune:
Choice of hardware platform, software, language and
compiling protocols will allow translation of each statement
in less than one minute and notes in less than 5 minutes.
System design will allow for human post editing/correction.
EXHIBIT C
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Initial Project Term Sheet for the Identified Application of Financial
Information
PROJECT #1
Topic: International Accounting standards Committee
Published Accounting Standards
Tasks: Input 250,000 words in English which have
already been translated (and aligned) in
German and Spanish.
Compare new 60,000 standards to above to
determine word count leverage.
Compare "publication" reference to existing
standards to determine word count leverage.
PROJECT #2
Topic: Microsoft manuals
Tasks: TTGL will provide 2 million to 5 million
words each of English with aligned Dutch
translations of Microsoft manuals and
similar documents.
1. Determine translation leverage on new
Microsoft texts.
EXHIBIT D
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A copy of CompuMark/Xxxxxxxx Limited License.
EXHIBIT E
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A copy of a letter from an Authorized Representative of CompuMark/Xxxxxxxx
reflecting the accuracy of the substance Section 5.6(iii)
AGREEMENT ("Agreement"), dated as of __________, 1999, between The
Translation Group, Ltd., a corporation organized under the laws of the State of
Delaware with an office at 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxx Xxxxxx, 00000,
(the "Company"), and Gurdun Magnusdottir.
NOW, the Company and Xxxxxx agree as follows:
1. Xxxxxx will be eligible for stock options to purchase shares 100,000 of
The Translation Group, Ltd. common stock at $[market price on day of closing]
per share. These options will be subject to the provisions of The Translation
Group, Ltd. 1995 Stock Option Plan and the specific terms of the Individual
Grant; and will vest in Xxxxxx as follows:
i. The first third (1/3) shall vest upon the achievement of $5,000,000
in gross revenues received by the Company in any one (1) Royalty Year as defined
herein arising from the commercialization of Application(s) pursuant to the
Licensing and Development Agreement by and among the Company and EST dated
__________, __, 1999 ("L & D Agreement").
ii. The second third (1/3) shall vest upon the achievement of
$10,000,000 in gross revenues received by the Company in any one (1) Royalty
Year as defined herein arising from the commercialization of Application(s)
pursuant to the L & D Agreement.
iii. The final third (1/3) shall vest upon the achievement of
$15,000,000 in gross revenues received by the Company in any one (1) Royalty
Year as defined herein arising from the commercialization of Application(s)
pursuant to the L & D Agreement.
iv. For purposes of this Agreement, Royalty Year shall commence on the
first day any Application generates revenue and end one day prior to the first
anniversary of said date. By way of example, if the Financial Information
Application in the L & D Agreement generated revenues on October 16, 1999, the
Royalty Year would be October 16, 1999 through October 15, 2000. In addition,
the Royalty Year would remain the same throughout the term of this Agreement as
well as during the term of the Individual Grant of stock options.
2. All compensation payable to Xxxxxx under this Agreement is stated in a
gross amount and will be subject to all applicable withholding taxes, or other
normal deductions, and any other amounts required by law to be withheld.
3. MISCELLANEOUS.
(a) This Agreement sets forth the entire understanding between the
parties as to the subject matter hereof and superseded all prior agreements,
arrangements and understandings, written or oral, between them as to such
subject matter. There have been no promises, statements, representations or
other inducements to this Agreement other than as set forth herein.
(b) This Agreement may not be amended, nor may any provision be
modified or waived, except by an instrument duly executed by both parties.
(c) Either party's failure at any time to require performance of any of
the terms, provisions or conditions hereof shall not affect such party's right
thereafter to enforce this Agreement or be deemed a waiver of any succeeding
breach.
(d) Paragraph headings contained in this Agreement have been inserted
for convenience or reference only, are not to be considered a part of this
Agreement and shall not affect the interpretation of any provision hereof.
(e) This Agreement shall be governed and construed in accordance with
the laws of the State of New Jersey applicable to contracts made and to be
wholly performed within said State.
(f) This Agreement shall be binding upon and inure to the benefit of
the Company and its successors and assigns, including without limitation, any
corporation which may acquire all or substantially all of the Company's assets
and business or with or into which the Company may be consolidated or merged.
(g) If any provision of this Agreement or the application of any
provision to this Agreement is declared to be illegal, invalid or otherwise
unenforceable by a court of competent jurisdiction, the remainder of this
Agreement shall not be affected except to the extent necessary to delete such
illegal, invalid or unenforceable provision, unless such declaration shall
substantially impair the benefit of the remaining portions of this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed by the Company and
Xxxxxx as of the date first written above.
THE TRANSLATION GROUP, LTD.
BY:________________________________
Name:
Title:
BY:________________________________
Name:
Title:
