Exhibit 10.1
FIRST AMENDMENT
TO
DISTRIBUTION AGREEMENT
THIS FIRST AMENDMENT TO DISTRIBUTION AGREEMENT (the "FIRST
AMENDMENT") is made as of the 20 day of November, 2001, between AVANT!CORP, HONG
KONG LIMITED (the "COMPANY"), with its principal place of business at Room 1006,
Bank of America Tower, 00 Xxxxxxxx Xxxx, Xxxx Xxxx, xxx XXXXXXXXX XX. (xxx
"DISTRIBUTOR"), with its principal place of business at 0xx Xxxx, #000-0,
Xxxxxxxx-Xxxx, Xxxxxx-xx, Xxxxx, 138-190.
W I T N E S S E T H
WHEREAS, the Company and the Distributor are parties to that certain
Distribution Agreement dated as of October 1, 2000 (the "AGREEMENT"); and
WHEREAS, pursuant to the Agreement, the Distributor is entitled to
certain compensation upon the termination of the Agreement; and
WHEREAS, the Company and the Distributor now desire to amend the
Agreement to, among other things, disallow any compensation payable to the
Distributor upon termination of the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto mutually
promise, covenant, undertake and agree as follows:
1. Consequence of Termination. In consideration of a payment of
US$250,000.00 by the Company to the Distributor, the receipt of which is hereby
acknowledged, Section 19.3 of the Agreement shall be amended and restated in its
entirety as follows:
"19.3 Upon termination, neither the Distributor nor any of its
affiliates shall be entitled to any compensation or fee of any sort whatsoever
from the Company or any of its affiliates."
2. Certification by the Distributor. The Distributor certifies that:
a. this Agreement, as amended hereby, is the only agreement
currently in effect between the Company or any of its affiliates
on the one hand, and the Distributor or any of its affiliates on
the other hand, with respect to distribution of the Company's
products or services; and
b. this Agreement, as amended hereby, represents the entire
agreement between the Company or any of its affiliates on the
one hand, and the Distributor or any of its affiliates on the
other hand, with respect to distribution of the Company's
products or services; and
c. there are no amendments, modifications, or supplements to this
Agreement, whether oral or written, other than this First
Amendment; and
d. the Company is not in any respect in default under the
Agreement, as hereby amended; and
e. notwithstanding the provisions of Section 20.7 of the Agreement,
the Distributor consents and agrees to the (A) disclosure of any
and all terms of the Agreement and this First Amendment (i) in
the public reports, registration statements and other filings of
Avant! Corporation, a Delaware corporation ("PARENT"), that have
been filed or in the future may be filed with the US Securities
and Exchange Commission (the "SEC"), and (ii) as may be required
by applicable law, and (B) public filing of the Agreement and
this First Amendment with the SEC by Parent.
3. Release. The Distributor, for itself, its legal successors and
assigns, partners, limited partners, constituent entities, affiliated and
related companies, officers, directors, stockholders, principals, servants,
employees, agents and representatives, and each of them, do hereby absolutely,
fully and forever release, relieve, waive, relinquish, absolve, acquit and
discharge the Company and the Company's respective legal successors,
predecessors, and assigns, partners, limited partners, constituent entities,
affiliated and related companies, officers, directors, stockholders, principals,
servants, employees, attorneys, agents and representatives of and from any and
all manner of claims, demands, promises, cause or causes of action, action or
actions, suits, debts, liabilities, obligations, costs, expenses, sums of money,
controversies, damages, accounts, reckonings, and liens of every kind or nature
whatsoever, whether mature, contingent, direct, derivative, subrogated,
personal, assigned, discovered, undiscovered or otherwise (hereinafter called
"CLAIMS"), which they have or may have or have had, owned, or held at any time
by reason of any matter, cause or thing whatsoever from the beginning of time to
the date hereof in any way arising out of or relating to (i) any termination
fee, termination payment or similar award due upon termination of the Agreement
arising under or in connection with the Agreement, any prior agreement between
the Company or its affiliates on the one hand, and the Distributor or its
affiliates on the other hand, or the distribution of the Company and its
affiliates' products and services by the Distributor or otherwise or (ii) this
First Amendment. Distributor hereby represents, warrants, and acknowledges to
the Company that it has received independent legal advice from its attorneys
regarding the advisability of executing this First Amendment and giving the
release provided for herein, and that it has been advised by their attorneys
concerning and is familiar with the provisions of Section 1542 of the Civil Code
of the State of California, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
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Distributor, being aware of Section 1542, hereby expressly waives and
relinquishes any rights or benefits it has or may have thereunder in connection
with the release provided herein, as well as under any other California or
federal statute or common law principle of similar effect. The Distributor
acknowledges that it is aware that it or its attorneys may hereafter discover
facts different from or in addition to the facts which it or its attorneys now
know or believe to be true with respect to the subject matter of this First
Amendment, but that it is their intention hereby to settle fully, finally,
absolutely and forever any and all claims, disputes and differences which do now
exist or heretofore have existed between the Distributor and its affiliates on
the one hand, and Company and its affiliates on the other, in any way arising
out of or relating to (i) any termination fee, termination payment or similar
award due upon termination of the Agreement arising under or in connection with
the Agreement, any prior agreement between the Company or its affiliates on the
one hand, and the Distributor or its affiliates on the other hand, or the
distribution of the Company and its affiliates' products and services by the
Distributor or otherwise or (ii) this First Amendment. In furtherance of this
intention, the release herein given shall be and remain in effect as a full and
complete release notwithstanding discovery of any such different or additional
facts.
4. Miscellaneous.
4.1 Amendment and Waiver. Except as otherwise expressly provided
herein, any provision of this First Amendment may be amended and the observance
of any provision of this First Amendment may be waived (either generally or any
particular instance and either retroactively or prospectively) only with the
written consent of the parties.
4.2 Governing Law and Legal Actions. This First Amendment shall
be governed by and construed under the laws of the State of California and the
United States without regard to conflicts of laws or provisions thereof and
without regard to the United Nations Convention on Contracts for the
International Sale of Goods. Unless waived by the Company in writing for a
particular instance (which the Company may do at its option), the sole
jurisdiction and venue for actions related to the subject matter hereof shall be
the U.S. federal courts having within their jurisdiction the State of California
or a portion thereof. Both parties consent to the jurisdiction of such courts
and agree that process may be served in the manner provided for giving of
notices or otherwise as allowed by California state law or federal law. In any
action or proceeding to enforce rights under this First Amendment, the
prevailing party shall be entitled to recover costs and attorneys' fees. The
parties hereto consent and agree that this choice of law and forum provision
governs both the First Amendment and the Agreement.
4.3 Severability. If any provision of this First Amendment is
held by a court of competent jurisdiction to be illegal, invalid, or
unenforceable, that provision shall be limited or eliminated to the minimum
extent necessary so that this First Amendment shall otherwise remain in full
force and effect and enforceable.
4.4 Entire Agreement. This First Amendment is an integration and
supersedes all proposals, oral or written, all negotiations, conversations,
discussions, or prior agreements between or among parties relating to the
subject matter of this First Amendment and all past dealing or industry custom.
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4.5 No Assignment. This First Amendment and the rights hereunder
are not transferable or assignable without the prior written consent of the
parties hereto, except for rights to payment and except to a person or entity
who acquires all or substantially all of the assets or business of a party,
whether by sale, merger or otherwise; any such assignee shall agree to abide by
the terms and conditions of this First Amendment.
4.6 Counterparts. This First Amendment may be executed in
counterparts, each of which shall be deemed an original, but both of which
together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment, all of the day and year first above written.
AVANT!CORP, HONG KONG LIMITED
By /s/ Xxxxxx Xx
--------------------------------------
Name: Xxxxxx Xx
Title: Executive Operating Officer
DAVANTECH CO.
By /s/ Sancho Park
--------------------------------------
Name: Sancho Park
Title: Chief Executive Officer
(SIGNATURE PAGE TO FIRST AMENDMENT TO DISTRIBUTION AGREEMENT)
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