Exhibit 10(n)
AGREEMENT
THIS AGREEMENT is made and entered into on the 30th day of September, 1996 by
and among CE Software Holdings, Inc., a Delaware Corporation; CE Software, Inc.,
an Iowa Corporation and a wholly owned subsidiary of CE Software Holdings, Inc.
(herinafter CE Software Holdings, Inc. and CE Software, Inc. are referenced
jointly as "CEH"; Xxxxxxxx X. Xxxxxxx, a resident of the state of Missouri
("Xxxxxxx") and Xxxxx Xxxxxx, a resident of the state of California ("Wiener").
WHEREAS, CEH, Xxxxxxx and Xxxxxx desire to commence a business enterprise
which enterprise shall be based upon the combined skills, experience and re-
sources of CEH, Xxxxxxx and Wiener (hereinafter referenced as "Net Target"), and
WHEREAS, the parties desire to establish the ownership interests in
and general agreements for the operations of Net Target.
NOW, THEREFORE, in consideration of the mutual conditions and covenants
contained in this Agreement, and for other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, it is agreed as
follows:
1. Incorporation and Directors. The parties shall cause Net Target to be
incorporated under the laws of the state of Delaware, and designated as a "C"
corporation for purposes of the Internal Revenue Code of 1986 (as amended). The
Certificate of Incorporation of Net Target (the "Certificate") shall provide
that Net Target shall be governed by a Board of Directors (the "Net Target
Board") of no less than three persons the initial number of which shall be three
(3) and the initial members of which shall be Xxxxxxx, Xxxxxx and an individual
appointed by the Board of Directors of CE Software, Inc. The parties shall take
all steps necessary to insure that Net Target is organized in compliance with
and bound to the terms and conditions of this Agreement.
2. CEH Expenditure. Commencing in April 1993 and continuing to
the date of this Agreement, CEH has devoted considerable time and resources on
the Net Target project, a/k/a TargetCast, including, but not limited to the
research for and development of the software technology upon which Net Target
will build its operations (collectively, the time and resources devoted to Net
Target, including without limitation all work performed by the Engineers after
the date of this Agreement as contemplated by Section three (3), and the
resulting (and any interim) software and software technology are referenced
herein as the "Project"). Prior to execution of this Agreement, ownership of
the Project has rested solely with CEH. Upon execution of this Agreement, and
subject to the license granted in Section ten (10), CEH agrees (a) to
contribute to Net Target an additional Seventy-five Thousand dollars
($75,000.00)and does hereby contribute its
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Exhibit 10(n)
entire interest in the Project, and (b) to assign and hereby does assign to Net
Target all rights, including without limitation all copyrights, patent rights,
trade secret and know-how rights in and to or used or embodied in the Project,
or the research and development thereof, the trademark "TargetCast", and all
other materials and information developed as part of the Project by or on behalf
of CEH. CEH acknowledges that it has never had and will not have any right
or interest in the xxxx "TargetGuide." Of the additional Seventy-five Thousand
dollars ($75,000.00) CEH has agreed to contribute to the Project Six Thousand
Six Hundred Thirty-nine dollars ($6,639.00) shall be paid to Net Target and the
remainder shall be held by CEH and used to reimburse CEH for funds expended on
the Project, from and after August 1, 1996 to the date of this Agreement, in the
amount of Thirty-two Thousand Three Hundred Sixty-one dollars ($32,361.00) and
as a prepayment of employment expenses (120% of gross wages) of the Engineers
(as defined in Section three (3) below) up to and including December 16, 1996.
Any funds in excess of the amount needed to reimburse CEH for such expenditures
to and including December 16, 1996, shall be paid to Net Target. CEH shall
promptly provide Net Target with appropriate tangible manifestations of all the
foregoing, will take such actions and execute such documents as may be necessary
or desirable to evidence, perfect, create, enforce, maintain or defend the
rights of Net Target in and to the foregoing, and will keep confidential and
(except as allowed in the license set out in Section ten (10) of this Agreement)
not use any non-public information within the foregoing.
3. CEH Employees. The software engineers of CEH who are working with
the Project as of the date of this Agreement, Xxxxxx Xxxxxx and Xxxx Xxxxxx,
(the "Engineers") will, subject to the consent of the Engineers and of CEH,
remain employees of CEH but shall work only on the Project. Commencing August
1, 1996 and continuing during such time as the Engineers remain employees of CEH
and are working for Net Target, Net Target will reimburse CEH monthly in an
amount equal to 120% of gross wages earned by the Engineers as employees of CEH.
The Engineers will not receive a raise from CEH from the salary in effect on
September 1, 1996 without the prior approval of the Board of Directors of Net
Target. During the term of this Agreement, Net Target may at any time solicit
the employment of such Engineers but shall not solicit the employment or
services of, or recruit, any other CEH employee.
4. Shares. The Certificate shall provide that Net Target is authorized
to issue no less than ten Million five hundred thousand (10,500,000) shares of
Common Stock. Immediately upon the incorporation of Net Target, Xxxxxxx,
Xxxxxx and CEH shall make contributions and Net Target shall issue shares of its
Common Stock as follows:
A. In consideration of a cash capital contribution of fifty thousand
dollars ($50,000), Xxxxxxx shall receive seven hundred sixty-five thousand
(765,000) shares of Common Stock, which purchase and sale of Common Stock shall
be evidenced by a stock purchase agreement, in substantially the form attached
hereto as Exhibit B. Each of the parties to this Agreement acknowledges
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Exhibit 10(n)
and agrees that the consideration being paid by Xx. Xxxxxxx for the shares
of Common Stock (as described in the paragraph) represents the fair market value
of the Common Stock as of the date of this Agreement.
B. In consideration of a cash capital contribution of fifty thousand
dollars ($50,000), Wiener shall receive seven hundred sixty-five thousand
(765,000) shares of Common Stock, which purchase and sale of Common Stock
shall be evidenced by a stock purchase agreement, in substantially the form
attached hereto as Exhibit B. Each of the parties to this Agreement
acknowledges and agrees that the consideration being paid by Wiener for the
shares of Common Stock (as described in the paragraph) represents the fair
market value of the Common Stock as of the date of this Agreement.
C. In consideration of the additional capital contribution of
seventy-five thousand dollars ($75,000) and the assignment of the Project to
Net Target, CEH shall receive One Million four hundred seventy thousand
(1,470,000) shares of Common Stock, which purchase and sale of Common Stock
shall be evidenced by a stock purchase agreement, in substantially the form
attached hereto as Exhibit B.
5. Target Date. The Target Date shall be March 31, 1997, or such other
later date as requested jointly by Xxxxxxx and Xxxxxx and approved by CEH.
CEH's approval of such other later date shall not be withheld unless, in the
reasonable determination of the Board of Directors of CE Software Holdings,
Inc., the granting of such approval would have a materially adverse effect on
CEH, Net Target or the shareholders of CEH or Net Target. CEH acknowledges
that, for purposes of this Section five (5), its recording of expenses in the
amount of up to Seventy-five Thousand dollars ($75,000) on its income statement
as a direct or indirect result of its purchase of shares of Common Stock of Net
Target shall in no event be determined to have a materially adverse effect on
CEH or the shareholders of CEH.
6. Venture Capital. Xxxxxxx and Wiener shall undertake to raise funds for
Net Target from outside investors ("Venture Capitalists") in exchange for shares
of stock of Net Target to be issued to the Venture Capitalists at a price no
less than thirty-three cents ($0.33) per share (or, in the event the shares
shall be issued in a class or series which is either voting stock or convertible
to voting stock, the price per share shall be the equivalent of thirty-three
cents ($0.33) per vote). Funds received from Venture Capitalists shall be held
in escrow and no shares of stock of Net Target shall be issued unless and until
Xxxxxxx and Xxxxxx are successful, on or before the Target Date, in obtaining
funds for Net Target from Venture Capitalists in a minimum amount of either (i)
five hundred thousand dollars ($500,000) from a single source or (ii) seven
hundred fifty thousand dollars ($750,000) from two sources (the amount specified
in (i) or (ii), whichever is applicable, will be referenced herein as the
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Exhibit 10(n)
"Minimum Amount"). Funds shall be deemed to have come from a single source if
such funds are received from an investor which, as a condition of its investment
in Net Target, has required and received the right to exercise oversight control
of Net Target. Such oversight control shall include, but not be limited to, the
right to elect one or more members of the Board of Directors of Net Target. For
purposes of this Section six (6), an investor may be an individual, a
corporation, a partnership, a limited liability company, or other business
entity organized and existing under the laws of any state or a group of related
venture/affiliate funds and/or partners of such funds.
7. Voting Agreement. Each of Xxxxxxx and Wiener agrees that he
shall not vote any of his shares of Common Stock and shall not take any other
action within his control (whether in his capacity as stockholder, director,
member of a board committee or officer of Net Target or otherwise, and
including, without limitation, attendance at meetings in person or by proxy for
purposes of obtaining a quorum and execution of written consents in lieu of
meetings) in favor of any proposal for the reclassification, reorganization,
merger, share exchange, liquidation, or dissolution of Net Target or the
reclassification or modification of rights of the shares of the Common Stock or
other securities of Net Target unless CEH has also voted its shares in favor of
such proposal. The parties to this Agreement acknowledge (i) that this Section
seven (7) shall not apply in the event that Xxxxxxx and Xxxxxx determine in good
faith on the basis of advice of counsel that his obligations hereunder are
inconsistent with and contrary to his fiduciary duties as directors and (ii)
that this Section seven (7) shall in no way be construed to require either
Xxxxxxx or Wiener to vote in favor of any of the transactions described herein.
CEH shall not unreasonably withhold its vote for approval of any proposal to
issue shares of stock to Venture Capitalists. The provisions of this Section
seven (7) shall terminate automatically and be of no further force and effect
upon the date that Xxxxxxx and Xxxxxx have successfully raised, and Net Target
has received, the Minimum Amount from Venture Capitalists on or before the
Target Date.
8. Initial Options. Xxxxxxx and Wiener shall be authorized to grant to
employees of Net Target, other than Xxxxxxx or Xxxxxx, options for the
purchase of up to four hundred fifty thousand (450,000) shares of Common Stock
for an exercise price equal to the fair market value of such shares on the date
of grant, which value shall be determined by the Net Target Board; provided,
however, that such exercise price shall not be less than ten cents ($.10) per
share. All options granted under this paragraph shall be granted under a stock
option plan, the terms and conditions of which shall be either (i) consistent
with the CEH 1992 Stock Option Plan (a copy of which shall be provided to Net
Target or (ii) approved by the member of the Board of Directors of Net Target
that is affiliated with CEH. Except as otherwise provided in this Section eight
(8), Net Target shall not grant any stock options until after the date upon
which Net Target has successfully raised the Minimum Amount from Venture
Capitalists. The restrictions imposed by this section eight (8) shall not apply
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Exhibit 10(n)
to any options granted after the date upon which Xxxxxxx and Xxxxxx have
successfully raised, and Net Target has received, the Minimum Amount from
Venture Capitalists on or before the Target Date.
9. Noncompete. Noncompete agreements will be signed by both Xxxxxxx and
Wiener, which agreements shall provide as follows
A. During the period of the employment by Net Target and for a period of
one (1) year after such employment, the employee shall not (i) engage in; (ii)
have any interest in any person, firm or corporation that engages in competition
with Net Target, or any of its subsidiaries, in the development, manufacture,
processing, distribution, or sale of any products (including any item of
intellectual property) that were developed, manufactured, processed,
distributed, or sold by Net Target or any of its subsidiaries at any time during
the period of his or her employment by Net Target, in any area in which such
business shall be carried on. The employee will not be deemed in violation of
this Agreement solely because of his involvement or interest in such a person,
firm or corporation if (i) his interest is limited to a one-percent interest or
(ii) his involvement is limited to a portion of such person, firm or corporation
that is not involved in such competitive activity.
B. The employee shall not, directly or indirectly, solicit for
employment, or advise or recommend to any other person that they employ or
solicit for employment, any employee of Net Target during the period of the
employee's employment by Net Target and for a period of one (1) year thereafter.
C. During and after his or her employment, the employee shall not
divulge or appropriate to his or her own use or to the use of others, in
competition with Net Target, any secret or confidential information or
knowledge pertaining to the business of Net Target, or of any of its
subsidiaries, obtained by him or her in any way while employed by Net Target or
by any of its affiliates.
10. License. All intellectual property in the Project (excluding the
TargetCast and Target Guide trademarks), including all trade secrets, copyrights
and patents, existing at the time of execution of this Agreement and, to the
extent provided below, arising in the future as a result of the Project, shall
be the sole property of Net Target, subject to a limited, non-exclusive,
royalty-free, perpetual license back to CEH on and subject to the following
terms. The license shall include all such intellectual property transferred by
CEH to the Project (in both source and object code), including any improvements
thereto through the date that the Minimum Amount has been received from Venture
Capitalists. Such license shall include the unlimited (except for Section
eleven (11)) right of CEH to use all such intellectual property in the
continuing development and marketing of its
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Exhibit 10(n)
products, with the exception of the server-technology intellectual property
(the "TargetCast Server"). Such license shall be restricted in that CEH may not
re-license, sell or distribute the TargetCast Server except in object code
(accompanied by reverse engineering restrictions as currently set forth in
standard CEH software licenses), as part of an e-mail system in which the
TargetCast Server is a constituent part and is used only for processing,
managing, replying to, forwarding, rerouting and rerouting incoming e-mail. For
the avoidance of doubt, the interest of Net Target in and to such intellectual
property is, as a consequence of such license, non-exclusive as to CEH in that
there are no restrictions on the ability of CEH to the full use and enjoyment of
such intellectual property except as specified in this Section ten (10) and in
Sections eleven (11) and twelve (12) below.
11. Noncompete by CEH. CEH shall not, during the term of this Agreement,
use the intellectual property developed after April 1, 1996 as a direct result
of the Project in a manner which is in competition with Net Target in its use of
the intellectual property as a basis for a system which gathers information to
create personal profiles for the purpose of selling targeted services on the
Internet or providing a customized information service.
12. Core Libraries. All program codes which are part of any past,
current or announced CEH product (as of August 1, 1996), except for program
codes written after April 1, 1996 solely for the Project, are part of the CEH
core libraries of codes ("Core Libraries"). Notwithstanding any language to the
contrary in this Agreement, all of the Core Libraries are, and shall continue to
be, the property of CEH. Use of the Core Libraries by CEH shall not be
considered a violation of Sections ten (10) or eleven (11). To the extent the
Core Libraries have been incorporated into the Project, Net Target shall have a
non-exclusive, royalty-free license to use the Core Libraries in the continuing
development and marketing of the Project and derivatives of the Project.
13. Termination. This Agreement may be terminated by the mutual written
consent at any time of all parties or by vote of the shareholders of Net Target.
Upon termination of this Agreement, all rights and obligations of the parties
hereunder shall terminate without any liability of any party to any other party
(except for any liability of any party then in breach for such breach);
provided, however, that the confidentiality provisions, the noncompetition
provisions of Section nine (9) of this Agreement, and the intellectual property
provisions contained herein shall survive any termination.
14. Additional Shares. CEH shall be entitled to purchase from Net Target
up to six hundred thousand (600,000) shares of Common Stock (not to exceed that
number of shares necessary to give CEH voting rights in excess of fifty percent
(50%) of the voting rights of all shares then outstanding) at a price
equivalent to ten cents ($.10) per share upon the happening of any one of the
following events: (i) Net Target fails to receive the Minimum Amount from
Venture Capitalists on or before the Target Date, or
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Exhibit 10(n)
(ii) either Xxxxxxx or Xxxxxx ceases to be a full-time employee of Net Target
on or before the Target Date.
15. Representation. Each party to this Agreement acknowledges and
represents that: (a) each has read the Agreement; (b) each clearly understands
the Agreement and each of its terms; (c) each fully and unconditionally consents
to the terms of this Agreement; (d) each has had the benefit and advice of
counsel of its own selection, or has had the opportunity to consult with counsel
of his/her own selection; (e) each has executed this Agreement freely, with
knowledge, and without influence or duress; (f) each is not relying upon any
representations, either written or oral, express or implied, made to them by any
person except those in this Agreement; (g) the consideration received by them
has been actual and adequate; (h) such party has not assigned, transferred,
licensed, pledged or otherwise encumbered anything purportedly transferred by it
hereunder or agreed to do so; (i) each has the full power and authority to enter
into this Agreement and to make the assignments and licenses it purports to
grant hereunder; and (j) each party is not aware of any violation, infringement,
or misappropriation of any third party's rights (or any claim thereof) by the
Project or the assigned or licensed rights.
16. Binding Effect. This Agreement shall be binding on and inure to the
benefit of the predecessors, successors and assigns of the parties hereto.
17. Entire Agreement. It is agreed and understood that all
understandings and agreements heretofore by the parties with respect to matters
covered by this Agreement are merged into this Agreement which alone fully and
completely expresses the parties' agreement.
18. Iowa Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Iowa.
19. Independent Parties. Nothing contained in this Agreement shall be
construed as creating a joint venture, partnership or employment relationship
between CEH and Net Target, it being understood that CEH and Net Target are
independent contractors vis-a-vis one another. Except as specified herein, no
party shall have the right, power or implied authority to create any obligation
or duty, express or implied, on behalf of any other party hereto.
20. Blue-Pencil Provision. If any provision of or within this Agreement
is found void, invalid or unenforceable, it will not affect the validity of the
balance of this Agreement which shall remain valid and enforceable according to
its terms. If any provision of this Agreement is found to be void, invalid or
unenforceable for reasons of being overly broad, unconscionable, against public
policy or the like, the parties agree that the provision should be interpreted
so as to be valid and enforceable to the maximum
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Exhibit 10(n)
extent deemed legally or equitably permissible consistent with the overall
intent of the Agreement.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed on this 30 day of September, 1996.
FORD XXXXXXX XX SOFTWARE HOLDINGS, INC.
/s/ Ford Xxxxxxx /s/ Xxxx X. Xxxx
_________________________ By__________________________
Secretary & Treasurer
Title_______________________
XXXXX XXXXXX CE SOFTWARE, INC.
/s/ Xxxxx Xxxxxx /s/ Xxxxxx X. lack
________________________ By__________________________
CFO/Treasurer
Title_______________________
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