Exhibit 10.9
AMENDED AND RESTATED
STRATEGIC ALLIANCE AGREEMENT
THIS AMENDED AND RESTATED STRATEGIC ALLIANCE AGREEMENT (this
"Agreement") is made as of December 31, 2001 by and between Creo Products Inc.,
a federally incorporated Canadian corporation ("Creo"), and printCafe, Inc.
("printCafe"), a Delaware corporation.
RECITALS
WHEREAS, Creo is a leading developer, manufacturer, distributor and
service organization of hardware and software digital solutions;
WHEREAS, printCafe is a leading supplier of end-to-end Graphic Arts
supply chain management software and services to print buyers, printers and
suppliers to printers worldwide and has developed a eCommerce service for the
purposes of entering the emerging business-to-business eCommerce marketplace for
the commercial printing, and related industries;
WHEREAS, Creo and printCafe consider it to be in their respective best
interests to form a strategic alliance such that each party hereto may benefit
from the other parties products, services and resources as set forth in this
Agreement;
WHEREAS, it is the intention of Creo and printCafe to work together in
a spirit of cooperation and good faith in order to assist each of the parties
hereto to develop a successful and profitable business in a competitive market
place; and
WHEREAS, Creo and printCafe wish to set forth the terms and conditions
of such a strategic alliance and have entered into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises set forth above and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto hereby agree as follows:
1. AMENDMENTS OF PRIOR ALLIANCE AGREEMENT. Effective and contingent upon
execution of this Agreement by printCafe and Creo, the Strategic Alliance
Agreement made as of July 13, 2000 between Creo and printCafe (formerly,
Prograph Systems, Inc.) is hereby amended and restated in its entirety to read
as set forth in this Agreement, and printCafe and Creo hereby agree to be bound
by the provisions hereof as the sole agreement of printCafe and Creo with
respect to the provisions set forth herein.
2. CONTRIBUTION OF INTELLECTUAL PROPERTY. Creo hereby grants to printCafe an
unlimited, exclusive, perpetual, royalty-free, worldwide license (including
right of sublicense) to use, reproduce, make, have made, sell, modify and create
derivative works from all of the Intellectual Property with respect to the items
set forth in Schedule "A" of this Agreement (the "Contributed IP"). The
Contributed IP is licensed to printCafe without warranties, express or implied,
of merchantability or fitness for a particular purpose or otherwise. Creo may,
from time to time,
acquire Intellectual Property for the provision of eCommerce Services (the
"eCommerce IP"). Creo shall grant a perpetual, non-exclusive, worldwide license
(including right of sublicense) to use the eCommerce IP for the provision of
eCommerce Services in the Graphic Arts Industry to printCafe, in consideration
of which printCafe shall pay Fair Market Value to Creo for such perpetual,
non-exclusive, worldwide license. Notwithstanding any provision herein to the
contrary, the Contributed IP shall not include any Intellectual Property used
in, related to or connected with CreoNet ("CreoNet" is the technology in Creo's
intranet infrastructure), Prinergy Products, Prinergy Insite, Brisque Products,
or Creo's Workflow Products. Notwithstanding any provision herein to the
contrary, eCommerce IP shall not include any Intellectual Property used in or
substantially similar to Prinergy Products or Prinergy Web, or Workflow
Products. Contributed IP and eCommerce IP shall not include any Intellectual
Property which Creo is prohibited from contributing or licensing to printCafe by
the terms of Creo's interest in such Intellectual Property. Creo shall undertake
such reasonable steps to further evidence the license of the Contributed IP set
forth herein.
3. CONTENT MANAGEMENT. Subject to Section 5, Creo shall be the exclusive
provider of Content Management and Workflow Products in connection with the
printCafe Business as it relates to the Graphic Arts Industry. If any technology
or related materials for Content Management is developed or sourced on behalf of
printCafe pursuant to Section 5, printCafe shall reimburse Creo for its Fully
Loaded Costs associated with such development or sourcing. Any such technology
or related materials so developed, other than improvements, modifications and
developments to or connected with Prinergy Products, Prinergy Web or Creo's
Workflow Products which shall at all times remain the sole property of Creo,
shall be jointly owned by Creo and printCafe. Creo or printCafe, as the case may
be, shall take such steps as are deemed necessary or desirable by the other
party, acting reasonably, to further evidence the joint ownership of such
technology or related materials.
Notwithstanding any provisions to the contrary, printCafe shall pay Creo Fair
Market Value for the use of Creo's Content Management and Workflow Products.
4. ECOMMERCE AND ASP SERVICES.
(A) eCommerce Services. Subject to Section 5, printCafe shall be Creo's
exclusive provider of eCommerce Services related to the Graphic Arts Industry.
(B) ASP of Prinergy Products. Subject to Paragraph 4(c), printCafe
shall be Creo's exclusive ASP for Prinergy Products, including Prinergy Insite
functions offered on an ASP basis (the "Prinergy ASP Services"). The strategy
for the adaptation of Prinergy Products to an ASP platform will be jointly
proposed and reviewed by the Product Steering Committee and Creo's development
team. When such Prinergy Products on an ASP platform are available, Creo shall
provide printCafe with such Prinergy Products for the purpose of printCafe
providing the Prinergy ASP Services at a price equal to 70% of the sum of the
list prices charged by Creo to each customer for the use of Prinergy Products,
such list prices to be determined by Creo in its sole discretion. The discount
from the applicable price charged by Creo will be provided in respect of
printCafe:
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(I) providing sales, installation, warranty, training, and support
to customers for Prinergy ASP Services;
(II) supplying hardware necessary for the Prinergy ASP Services;
and
(III) when technology permits, being permitted to aggregate multiple
customers onto a single hardware configuration.
printCafe shall be restricted to exclusively providing Creo Workflow Products,
and no other Workflow Products, as an ASP to its customers ("Workflow ASP
Services").
(C) ASP Exclusivity Exception. If printCafe does not offer Prinergy ASP
Services to a material market segment identified by Creo from time to time or
does not offer competitive features in any existing Prinergy ASP Services as
determined, from time to time, by Creo with reference to the then current market
for Workflow ASP Services, then Creo may provide written notice to printCafe
that such services are required in the marketplace. If, within 120 days after
receiving such written notice printCafe does not offer such services or features
to the marketplace, then Creo may provide such Workflow ASP Services without
printCafe notwithstanding any term herein to the contrary.
(D) Integration of Prinergy Insite. Creo and printCafe will use
commercially reasonable efforts to create the following integration features
between Prinergy Products, Prinergy Insite, and eCommerce Services within a
timeframe proposed and reviewed by the Product Steering Committees of printCafe
and Creo:
(I) Prinergy Insite or Prinergy Products integration with
printCafe central site e-commerce applications; and
(II) Prinergy Insite or Prinergy Products integration with
printCafe ERP solutions.
The parties hereto acknowledge and agree that Prinergy Products and Prinergy
Insite and equivalent products are the sole property of Creo and that Creo
maintains the sole right and discretion to determine end user prices, features,
discount policy, distribution models, and business models for Prinergy Products
and Prinergy Insite.
(E) Integration of Workflow Products/eCommerce Services.
Notwithstanding any provision herein to the contrary, Creo shall be permitted to
connect its Workflow Products with any eCommerce Services solution marketed to
the Graphic Arts Industry and printCafe shall be permitted to connect its
eCommerce Services with any Workflow Products solution marketed to the Graphic
Arts Industry, provided, however, that Creo and printCafe shall exclusively
co-market Creo's Workflow Products and printCafe's eCommerce Services in
combination to the Graphic Arts Industry.
5. RIGHT OF FIRST REFUSAL. If, from time to time, printCafe proposes to develop
or acquire, in any manner, Content Management functionality or products in
connection with the printCafe Business, or Creo proposes to provide, in any
manner, eCommerce Services in connection with the Creo Business (in either case,
printCafe or Creo to be referred to as the "Proposing Party") then the other
party (the "RFR Party") shall have the exclusive right to undertake the
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development or sourcing of such functionality, product or services (the
"Additional Functionality"), as the case may be, and to provide such Additional
Functionality to the Proposing Party, prior to the Proposing Party acquiring
such Additional Functionality from a Third Party ("Third Party") in accordance
with the following provisions:
(I) Project Specification Notice. The Proposing Party shall
deliver a product specification notice in writing (the "RFR
Notice") to the RFR Party specifying in commercially
reasonable detail the purpose; functionality, material
specifications and proposed time to market of the Additional
Functionality as well as any offers and materials which have
been proposed by a Third Party to printCafe.
(II) Right of Refusal. The RFR Party shall have 60 days following
the receipt or deemed receipt of the RFR Notice within which
to give written notice to the Proposing Party of its intention
to develop or source and provide the Additional Functionality
to the Proposing Party upon substantially the same terms as
described in the RFR Notice (the "Acceptance Notice") based on
Creo's use of commercially reasonable efforts.
(III) Development & Sourcing. Upon the delivery of the acceptance
notice the RFR Party shall promptly undertake the development
or sourcing of the Additional Functionality and shall use its
commercially reasonable efforts to provide the Proposing Party
with the Additional Functionality on a basis which is
consistent with the functionality and material specifications
and proposed time to market of the Additional Functionality
specified in the original RFR Notice, unless otherwise agreed.
The decision to develop versus source from a third party will
be commercially reasonable taking into account the cost of
development and market requirements for such functionality as
well as the RFR Party's product plans. The analysis performed
by the RFR party will promptly be made available, upon
request, to the other Proposing Party.
(IV) Ownership & Pricing. Except as otherwise provided in Section
3, the RFR Party shall retain all ownership of and title to
the Additional Functionality. The RFR Party shall provide the
use of such Additional Functionality to the Proposing Party at
its Fair Market Value.
If, after the 60 day period set forth in subparagraphs (ii), the RFR Party has
not provided the Proposing Party with the Acceptance Notice, then the RFR Party
shall be deemed to have refused the proposed project set out in the RFR Notice
and the Proposing Party may, within 120 days of the expiry of such 60 day
period, negotiate with or solicit offers from a Third Party with respect to the
Additional Functionality or otherwise acquire such Additional Functionality from
such Third Party pursuant to, and on terms no less favourable to the Proposing
Party than functionality and material specifications and proposed time to market
set forth in the RFR Notice. If the Proposing Party has not undertaken the
development or acquisition of the Additional Functionality within such 120 day
period, then the rights of the RFR Party shall revive in respect of such
Additional Functionality and if the Proposing Party shall thereafter desire to
develop, use, acquire or provide, as appropriate, such Additional Functionality,
it shall again comply with this Section 5.
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6. PROVISION OF CREO SERVICES. For purposes of this Section 6, "Creo" shall mean
Creo and its applicable direct or indirect wholly-owned subsidiaries and
"printCafe" shall mean printCafe and its applicable direct and indirect
wholly-owned subsidiaries.
(A) Product Support and Servicing. Creo shall provide product support
and servicing and such other services (collectively referred to herein as the
"Creo Product Support Services") as may be reasonably requested by printCafe
from time to time in relation to the printCafe Products and Services.
Notwithstanding the forgoing, Creo shall only be obligated to provide the Creo
Product Support Services requested by printCafe after a product support plan has
been mutually agreed to and implemented by printCafe and Creo. printCafe shall
pay Creo its Fully Loaded Costs for Creo Product Support Services provided
hereunder within 30 days of the receipt of an invoice from Creo.
(B) Sales Channel Services. Subject to this Paragraph 6(b) and
Paragraph 6(c), Creo shall at all times have, and printCafe hereby grants to
Creo, an unrestricted right to sell printCafe Products and Services on behalf of
printCafe into any market (collectively referred to herein as the "Creo Sales
Channel Services").
(I) Creo shall sell printCafe Products and Services in
accordance with, and printCafe shall offer to Creo the benefit of, such
terms and conditions, including but not limited to prices, discounts,
warranties, service and functionality, related to the sale of printCafe
Products and Services at least as favorable as those offered or
provided to any other sales and distribution mechanism or channel used
for printCafe Products and Services in the applicable market or a
market similar thereto.
(II) Creo Sales Channel Services shall be commissioned at
least at the same rate as commissions paid by Creo to its sales force
to distribute other Creo products and services in the applicable market
or a market similar thereto or as otherwise determined by mutual
agreement of printCafe and Creo.
(III) Creo shall assign one of its senior sales persons to
assist printCafe in selling printCafe Products and Services through
Creo Sales Channel Services.
(IV) If Creo sells eCommerce Services offered by printCafe
into any market, then printCafe will reimburse Creo for its Fully
Loaded Costs in connection with such sales activity;
(V) If Creo wishes to sell a printCafe Products to a specific
market in which printCafe is then currently selling printCafe Products
(an "Existing printCafe Market"), Creo shall provide printCafe with
thirty (30) days prior written notice of its intent to undertake such
sales activity and printCafe shall have thirty (30) days to agree to
support such Creo sales activity or decline to support such Creo sales
activity. If printCafe:
A. agrees to support such Creo sales activity,
then printCafe will reimburse Creo for its
Fully Loaded Costs in connection with such
sales activity; or
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B. does not agree to support such Creo sales
activity, then printCafe will reimburse Creo
for its Fully Loaded Costs subject to the
limitation set forth in Paragraph 6(c)(i).
(VI) If Creo wishes to sell a printCafe Product to a market to
which printCafe is not then currently selling printCafe Products (a
"New printCafe Market"), Creo shall provide printCafe with thirty (30)
days prior written notice of its intent to undertake such sales
activity and printCafe shall have thirty (30) days to agree to support
such Creo sales activity or decline to support such Creo sales
activity. In either case, printCafe will reimburse Creo for its Fully
Loaded Costs in connection with such sales activity subject to the
limitation set forth in Paragraph 6(c)(ii). If printCafe does not elect
to support such Creo sales activity, then printCafe will not make any
representations or warranties with respect to the sale of such
printCafe Product in such New printCafe Market and printCafe shall not
be obligated to incur any startup or development costs in preparation
for the sale of a printCafe Product into any New printCafe Market.
(vii) If printCafe requests in writing that Creo provide Creo
Sales Channel Services for a specific market, then printCafe shall pay
Creo or a Creo affiliate its Fully Loaded Costs with respect to the
Creo Sales Channel Services so requested.
(viii) printCafe and Creo shall use commercially reasonable
efforts to jointly coordinate the provision of Creo Sale Channel
Services into Existing printCafe Markets or New printCafe Markets in
which printCafe has agreed to support with printCafe's own sales
efforts, provided, however, that the foregoing shall not restrict Creo
from providing Creo Sales Channel Services into any such market or
being reimbursed for its Fully Loaded Costs in accordance with this
Agreement.
(ix) Any Fully Loaded Costs payable by printCafe to Creo in
accordance with this Paragraph 6(b) within 30 days of the receipt of an
invoice from Creo.
(x) Creo shall use, with respect to the provision of Creo
Sales Channel Services in accordance with this Paragraph 6(b), (A) a
form of license agreement substantially similar to the agreement used
by printCafe in Existing printCafe Markets, (B) subject to the
provisions of Paragraph 6(b)(vi), a form of license agreement used by
printCafe in similar markets to New printCafe Markets, or (C) such
other form agreement as agreed to in writing by printCafe and Creo.
(C) Adjustments to Fully Loaded Costs. Notwithstanding Paragraph 6(b),
(I) if printCafe is obligated to pay Creo its Fully Loaded
Costs in accordance with Paragraph 6(b)(v)B., then Creo's Fully Loaded
Costs shall be limited to, for each sale of a printCafe Product, the
lesser of (A) Creo's actual Fully Loaded Cost in connection with such
sale activity, and (B) the "Maximum Fully Loaded Cost" determined based
on the following formula:
C
A = B x [ ------------------------ ]
D
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Where:
A = Maximum Fully Loaded Costs payable from the sale of the
printCafe Product through Creo Sales Channel Services;
B = amount of sales revenue recorded by printCafe from the sale
of the printCafe Product through Creo Sales Channel Services;
C = printCafe's cost of sales including costs related to the
sales force, sales support staff and marketing staff and all
related expenses thereto (but not including allocated overhead
for technical and administrative support, implementation and
corporate overhead) for selling the printCafe Product into the
Existing printCafe Market (i) during the six month period
ending at the end of the full month immediately preceding the
month which Creo commences Creo Sales Channel Services in such
Existing printCafe Market; or (ii) during a similar six month
period immediately preceding the month of the annual
anniversary of Creo's commencement of Creo Sales Channel
Services in such Existing printCafe Market, as applicable;
D = aggregate amount of sales revenue recorded by printCafe from
the sale of the printCafe Product into the Existing printCafe
Market (i) during the six month period ending at the end of
the full month immediately preceding the month which Creo
commences Creo Sales Channel Services in such Existing
printCafe Market; or (ii) during a similar six month period
immediately preceding the month of the annual anniversary of
Creo's commencement of Creo Sales Channel Services in such
Existing printCafe Market, as applicable.
(II) if printCafe is obligated to pay Creo its Fully Loaded
Costs in accordance with Paragraph 6(b)(vi), then Creo's recovery of
its Fully Loaded Costs will be limited to the amount of sales revenue
recorded by printCafe on the sale of printCafe Products from Creo Sales
Channel Services in the New printCafe Market less printCafe Variable
Costs (as hereinafter defined) (the "New Market Limitation"). The
parties will apply the New Market Limitation to Creo sales in the New
printCafe Market on a monthly basis, provided that if the New Market
Limitation exceeds Creo's Fully Loaded Costs for such market for a
month (the "Monthly Excess Recovery"), then any Creo Fully Loaded Costs
which were not reimbursed by printCafe since January 1 of the year in
which the sales occur due to the New Market Limitation shall be paid by
printCafe to the extent of the Monthly Excess Revenue. For purposes of
this Paragraph 6(c)(ii), "printCafe Variable Costs" means any variable
costs (i.e. costs associated with printCafe's provision of maintenance
or training services sold by Creo or the purchase of licenses or
hardware in connection with such sales, but not including product
development costs incurred by printCafe in connection sales to such New
printCafe Market) incurred by printCafe in connection with the sale of
a printCafe Product in a New printCafe Market.
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(D) Set -off. Creo shall have the right to set-off any amount owing to
it pursuant to this Section 6 against any amounts owing from time to time to
printCafe.
7. PROMOTIONAL MATERIALS. printCafe and Creo acknowledge and agree that where
each party shares common customers and markets, both printCafe and Creo would
benefit from joint marketing activity of each party's respective products and
services and, therefore, each of printCafe and Creo agree with the other that:
(I) they will include references to each other in any Promotional
Materials for shared customers and markets, provided, however,
that the parties will meet from time to time to define those
cases where it is appropriate to exclude joint references;
(II) they will regularly share appropriate product marketing plans,
sales training plans, product marketing specifications,
promotional materials and positioning statements for all
relevant products;
(III) they will jointly determine standard clauses referring to the
other party for inclusion in Promotional Materials which
standard clauses may only be amended by mutual agreement from
time to time; and
(IV) each party will be entitled to review and approve the use and
representation of that party in Promotional Material therein
prior to any distribution of the Promotional Material and each
party will promptly discontinue any reference to the other
party or the other party's products in a particular
promotional series if requested to do so in writing by the
other party.
Creo will characterize the CFX specification as a subset of the PCX
specification to the Graphic Arts Industry. For greater certainty CFX remains
the sole property of Creo and CFX can be included as part of any other technical
specification and PCX remains the sole property of printCafe.
8. NON-COMPETE. Except as provided for in this Agreement and subject to Section
11, from and after the date hereof Creo shall not, directly or indirectly,
compete with the printCafe Business solely as it relates to the Graphic Arts
Industry and printCafe shall not, directly or indirectly, compete with the Creo
Business solely as it relates to the Graphic Arts Industry, and Creo or
printCafe, as the case may be, shall not invest in, own, manage, operate,
finance, control or participate in the ownership, management, operation or
control of, any business that competes with the printCafe Business or Creo
Business, respectively, solely as either relates to the Graphic Arts Industry.
For greater clarity, this restrictive covenant shall only apply to the
respective business of the parties hereto, as defined herein, solely in the
Graphic Arts Industry. Notwithstanding the above restrictive covenant, nothing
herein shall prevent:
(I) either party or its subsidiaries and affiliates from owning,
in the aggregate, not more than 10% of the outstanding stock
or other equity interests in any company that has a
substantial portion of its business operations in competition
with the printCafe Business or Creo Business as it relates to
the graphic arts industry, as the case may be; or
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(II) Creo or its subsidiaries and affiliates from providing eSales
and eSupport with respect to Creo's products and services to
Creo's customers or prospects directly without involving
printCafe.
9. SOLICITATION. From and after the date hereof and unless otherwise provided in
this Agreement the parties hereto shall not, directly or indirectly, either for
itself, or any other person or entity, induce or attempt to induce any employee
of the other party to leave the employ of such other party (except pursuant to
advertisements of general public circulation).
10. CONFIDENTIALITY AGREEMENTS. The parties hereto shall and shall cause any of
their respective employees providing services to or on behalf of the other party
or otherwise having access to the other party's confidential information
hereunder to execute and deliver the other party's standard form of
confidentiality and proprietary information agreement in substantially the form
as may be mutually agreed by the parties.
11. TERMINATION.
(A) Termination by Creo. Subject to paragraph 11(c), Creo may terminate
this Agreement at any time by written notice to printCafe and this Agreement
shall cease to have any force and effect, in the event of:
(I) the failure of printCafe to comply with any of the provisions
hereunder upon printCafe being notified in writing by Creo of
such failure failing to remedy such failure within 30 days of
receiving such notice;
(II) printCafe ceasing to carry on the printCafe Business or
otherwise making any sale or assignment of all or a
substantial portion of its assets related to or connected with
the printCafe Business in bulk or out of the ordinary course
of its business;
(III) the second anniversary of the date that printCafe has received
or is deemed to have received written notice that Creo (or any
of its subsidiaries or affiliates) ceasing to be the
beneficial or registered holder of any shares of capital stock
of printCafe or the holder or beneficiary of any security
exercisable or convertible into any shares of printCafe
capital stock; or
(IV) the bankruptcy or receivership of printCafe or the passing of
a resolution by printCafe for its winding up or dissolution.
(B) Termination by printCafe. Subject to paragraph 11(c), printCafe may
terminate this Agreement at any time by written notice to Creo and this
Agreement shall cease to have any force and effect in the event of:
(I) the failure of Creo to comply with any of the provisions
hereunder upon Creo being notified in writing by printCafe of
such failure and failing to remedy such failure within 30 days
of receiving such notice;
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(II) Creo ceasing to carry on the Creo Business or otherwise making
any sale or assignment of the whole or a substantial portion
of its assets related to Content Management in bulk or out of
the ordinary course of its business; or
(III) the bankruptcy or receivership of Creo or the passing of a
resolution by Creo for its winding up or dissolution.
(C) Alternative Remedy for Certain Defaults. In the event of a default
by printCafe pursuant to paragraph 11(a)(i) or a default by Creo pursuant to
paragraph 11(b)(i) (in this section referred to as the "Defaulting Party") and
the Defaulting Party has received the notice set out therein from the other
party (the "Non-defaulting Party") and has failed to remedy the failure or
breach within required period, then, the Non-defaulting Party may elect not to
terminate this Agreement pursuant to paragraph 11(a) or 11(b), as the case may
be, but may instead elect in writing to the Defaulting Party the remedy set out
in this paragraph 11(c) in which case the Non-defaulting Party shall be deemed
to be released from any future obligation or restriction pursuant to Section 5 -
Right of First Refusal and Section 7 - Non Compete and this Agreement shall be
deemed to be amended accordingly.
12. DEFINITIONS. As used in this Agreement, the following terms shall have the
following meanings:
(A) "ASP" means application services provider;
(B) "ASP Services" means the provision of software functionality to the
Graphics Arts Industry supply chain solely through a web browser where the
software and hardware resides at and is managed by the ASP, rather than at the
end customer premises, excluding eSales and eSupport;
(C) "Brisque Product" means those products branded as Brisque, PSM
and/or any products based on Brisque technology targeted to the print-on-demand
market or any derivative products based on Brisque or CT/LW technologies;
(D) "Content Management" includes the validation, manipulation,
assembly, conversion, modification, output and re-purposing of any digital
content without limiting the generality of the forgoing, includes Prinergy
(Connect, Collect, Direct, Convert, conCEPS, Image Database and other Prinergy
products), Prinergy Insite (which may interface to all Creo's Workflow
Products), TIMNA , Brisque, Image Database (e.g. Xxxxx media, Unity, Cumulus),
web based collaborative tools, and Centralized file repository (e.g., Punch Web
Group, Media Depot, Cumulus);
(E) "Creo Business" means to be a developer, manufacturer, distributor
and service organization of hardware and software digital solutions that
automate the prepress phase of commercial printing, PCB Manufacturing,
Development of PCB Manufacturing Hardware and Software, Hardware design and
Manufacturing, Plate Media design and manufacturing, Research and development
and manufacturing of Optical equipment, electronics, and precision mechanical
devices, Prepress devices, Workflow Products and Services, Content Management
products and services, software products and support of software products;
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(F) "CWR" means a common workflow and common raster image processor
based specifically on PDF and Adobe Extreme(TM) architecture;
(G) "eCommerce Services" means the provision of electronic services
over the Internet for quotation, scheduling and tracking of orders, invoicing,
payment, or fulfillment of print jobs within the Graphics Arts Industry but does
not include eSales and eSupport or Creo Workflow Products and Services which are
non-commerce based;
(H) "eSales" means the set of technologies, solutions and services that
allow Creo to interact electronically with Creo's customers or prospects to
facilitate on-line sales by means of the Internet. Solutions include but are not
limited to: providing prospects with requested information; web-based pricing,
configuration and lead time capabilities; on-line ordering capabilities;
web-based order status, invoice, payment and related capabilities; on-line
service and warranty; and other e-commerce capabilities such as e-mail
notification and address change. A wide range of interactions can be supported
within Creo's eSales solutions including but not limited to: on-line
information; on-line ordering; integrated ordering; site personalization and
voice-enabled and/or agent-assisted commerce;
(I) "eSupport" means the set of technologies, solutions and services
that allow Creo to interact electronically with Creo's customers or prospects to
deliver customer support by means of the Internet. Solutions include but are not
limited to: providing requested information and applications; processing
transactions as part of customer service; resolving customer problems; providing
on-line training; providing professional services to assist customers with
developing their own eSales and eSupport capabilities. A wide range of
interactions can be supported within Creo's eSupport solutions including but not
limited to on-line access to Creo content, self-service solutions, e-mail
management and real-time interaction;
(J) "Fair Market Value" means the price at which a product or service
is generally made available and/or purchased or sold by a material number of
parties in the specified market for such products or services, or for products
that are deemed to be comparable in features and performance;
(K) "Fully Loaded Cost" means; (i) with respect to Creo Product Support
Services, normal direct labor charges (including overtime) for actual time
devoted to performance of such services requested by printCafe, plus an
allocation (based on such actual time) of fringe benefit costs, then multiplying
such sum by a factor of 1.2 for overhead or as otherwise reasonably determined
by Creo's internal accounting for such overhead allocation, and (ii) actual
out-of-pocket expenses including, without limitation, materials costs consumed
in providing such services, and (ii) with respect to Creo Sale Channel Services,
normal direct labor charges (including overtime) for actual time devoted to
performance of such services and commissions, plus an allocation (based on such
actual time) of fringe benefit costs, then multiplying such sum by a factor of
1.2 for overhead or as otherwise reasonably determined by Creo's internal
accounting for such overhead allocation, and (ii) actual out-of-pocket expenses
including, without limitation, materials costs consumed in providing such
services.
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(L) "Graphic Arts Industry" means participation in the publishing and
printing business as performed by publishers, printers, graphic arts companies,
print buyers, ad agencies, and paper, ink, consumables and equipment suppliers
to printers and publishers;
(M) "Intellectual Property" means inventions, patents, patent
applications, copyrights, copyright registrations, copyright applications, trade
secrets, know-how, confidential information, source code, and all other types of
intellectual property (excluding trademarks and like trade identifiers);
(N) "Prinergy Products" means products based on the proprietary CWR of
Creo and , where applicable, Heidelberg Druckmaschinen AG;
(O) "Prinergy Insite" means the web browser interface for Creo Workflow
Products and includes but is not limited to functionality for job submission,
proofing and approval, and job status monitoring based on the the proprietary
CWR of Creo and, where applicable, Heidelberg Druckmaschinen AG;
(P) "printCafe Business" means the provision of end-to-end supply chain
management (i.e. ERP) software and eCommerce Services within the Graphic Arts
Industry;
(Q) "printCafe Products" means all ERP and other software offered from
time to time by printCafe or printCafe's subsidiaries and affiliates, together
with any training and implementation services sold with respect thereto;
(R) "printCafe Products and Services" any printCafe Products and
eCommerce Services offered from time to time by printCafe or printCafe's
subsidiaries and affiliates;
(S) "Promotional Materials" includes all materials used for sales,
marketing and reinforcement of the brand name and logo of products, including
but not limited to advertisements, trade show banners, graphic arts images,
promotional brochures, posters, Internet banner ads and product splash screens;
(T) "Workflow Products" means Prinergy Products, Brisque Products,
Prinergy Insite, Print on Demand systems, PSM, Content Management or software
and / or hardware capable of receiving content related information in a digital
format and/or processing this information or otherwise sending the data stream
to an imaging device, as well as the natural evolution of these products over
time; and
(U) "Workflow Services" means services provided using Workflow
Products.
13. CERTAIN COMMITTEES.
(A) Product Steering Committee. printCafe shall establish a Product
Steering Committee to determine and matters with respect to printCafe's Services
product functionality, roadmaps, pricing, development schedules, product rollout
schedules and criteria, strategic partnerships and alliances, and major
marketing decisions. Matters which are the domain of the Operations Committee
may be referred to the Operations Committee for approval. At least one member of
the Product Steering Committee shall be designated by Creo. The Product Steering
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Committee shall meet at least once a month and an agenda setting forth the
proposed business of the meeting will be delivered to all members at least five
days prior to the scheduled meeting. The Product Steering Committee shall act on
a consensus basis. Any member of the Product Steering Committee may attend in
person or by telephone conference.
(B) Operations Committee. printCafe shall establish an Operations
Committee to advise its Board of Directors with respect to strategic direction
of printCafe and such other matters as the Board of Directors of printCafe shall
from time to time deem appropriate. printCafe's Board of Directors shall from
time to time determine the members of the Operations Committee, which shall at a
minimum include the printCafe CEO, President, and a Creo representative from
printCafe's Board of Directors or such person as the Creo representative shall
appoint as his or her designee, provided that such designee shall sign a
mutually agreeable confidentiality agreement for the benefit of printCafe and is
approved by printCafe's Board of Directors. The Operations Committee shall meet
at least once a month and shall act on a consensus basis. The Creo
representative from printCafe's Board of Directors may attend in person or via
telephone conference.
14. MATERIAL BUSINESS TRANSACTIONS.
(A) Restriction on Sale or Transfer. printCafe shall not sell, transfer
or otherwise dispose of, directly or indirectly, all or substantially all of the
assets of the printCafe Business or capital stock of printCafe (a "Material
Interest"), in a single transaction or series of related transactions nor enter
into any agreement or commitment to do any of the same except as specifically
permitted by this Agreement.
(B) Permitted Sale or Transfer. Nothwithstanding paragraph 14(a),
printCafe may sell, transfer or otherwise dispose of a Material Interest if, and
only if:
(I) it has received from a person, corporation or other entity
("Offeror") a written good faith offer ("Offer") to purchase or acquire
a Material Interest;
(II) printCafe has given to Creo, promptly upon its receipt of
such Offer, a written notice enclosing a copy of the Offer and
providing reasonable information about the Offeror known to printCafe;
(III) the Offeror agrees to be bound by all rights and
obligations of printCafe in respect of this Agreement and, if the Offer
relates to a sale or transfer assets and if requested by Creo, the
Offeror at the closing enters into an agreement with Creo (reasonably
satisfactory to the solicitors of Creo) whereby the Offeror agrees to
be bound by and entitled to the benefit of this Agreement in place of
printCafe;
(IV) printCafe has provided Creo, if Creo has indicated in
writing within two (2) business days of receipt of the notice set forth
in paragraph (ii) above a desire to deliver an alternative offer to the
Offer received by printCafe, with eight (8) business days to to deliver
an alternative offer to the Offer for consideration by printCafe, or if
there has been a material change to an existing Offer, printCafe has
otherwise provided Creo with a commercially reasonably opportunity to
deliver an alternative offer to such amended Offer, as the case may be;
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(V) if Creo has not indicated a desire to deliver an
alternative offer or has otherwise not delivered an alternative offer
in accordance with paragraph 14(b)(iv), printCafe has provided to Creo
prompt updates the negotiations relating to the Offer, including copies
of any definitive agreements circulated by the parties to the
transaction, and prompt notice of any proposed material changes to the
Offer including a copy of the Offer, as amended; and
(VI) printCafe has otherwise complied with all other terms and
conditions, and obtained all other necessary approvals, in favour of
Creo or a Creo affiliate with respect to the sale, transfer or other
disposal of a Material Interest as set forth in its Certificate of
Incorporation, this Agreement and any Right of First Refusal and
Co-sale Agreement, Credit Facility Agreement or Loan Agreement,
Collateral Agreement or similar agreement to which printCafe and Creo
or a Creo affiliate is a party.
(C) Limitation on Rights in the Event of an IPO. Notwithstanding
anything to the contrary in this Agreement, the rights, restrictions and
obligations set forth in this Section 14 shall terminate and be of no further
force and effect upon the closing of an initial public offering of printCafe's
common stock in a firm commitment underwritten public offering pursuant to a
registration statement under the Securities Act of 1933, as amended, other than
a registration relating solely to a transaction under Rule 145 of the Securities
Act of 1933.
(D) Waiver of Rights. Notwithstanding any other provision of this
Section 14, Creo may waive its rights, in whole or in part, with respect to or
given under this Section 14 by notice in writing to the printCafe.
15. DISPUTE RESOLUTION.
(A) Negotiation. No arbitration or other proceeding with respect to any
claim, dispute or controversy arising out of or in connection with or relating
to this Agreement or the breach or alleged breach thereof shall arise until the
following procedures have been completed. Representatives from each party will
meet within ten (10) business days after receipt of a request from either party
to review in good faith any dispute with respect to the interpretation of any
provision of this Agreement or with respect to the performance of either party
under this Agreement. In the event a disagreement or dispute under this
Agreement is not resolved by the designated representatives of each party by
mutual agreement within five (5) business days after a meeting to discuss the
disagreement, which resolution shall be evidenced by a document signed by both
parties, either party may within five (5) business days thereafter provide the
other written notice specifying the terms of such disagreement in reasonable
detail. Upon receipt of such notice, the chief executive officer of each party
shall meet at a mutually-agreed place and time (but no later than ten (10)
business days after receipt of such notice) for the purpose of resolving such
disagreement. Such officers shall make a good faith effort to resolve the
disagreement or negotiate an acceptable revision of this Agreement acceptable to
both parties, without the necessity of formal procedures relating thereto.
During the course of such discussion, the parties will reasonably cooperate and
provide information that is not confidential to the end that each party may be
fully informed with respect to the issues in dispute. The institution of
arbitration to resolve the disagreement may occur only after the earlier of the
following events: (i) the chief executive officers mutually agree that
resolution of the disagreement through continued
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negotiation is not likely to occur, or (ii) ten (10) business days after the
initial meeting between such chief executive officers.
(B) Arbitration. Subject to the provisions of paragraph (a) above, any
dispute or claim arising out of or in connection with this Agreement will be
finally settled by binding arbitration in Seattle in accordance with the
then-current Commercial Arbitration Rules of the American Arbitration
Association by three arbitrators appointed in accordance with said rules. Each
party shall select one such arbitrator, and the two arbitrators so chosen shall
select the third arbitrator. The arbitrators shall apply Delaware law, without
reference to rules of conflicts of law or rules of statutory arbitration, to the
resolution of any dispute. Judgment on the award rendered by the arbitrator may
be entered in any court having jurisdiction thereof. Notwithstanding the
foregoing, the parties may apply to any court of competent jurisdiction for
preliminary or interim equitable relief, or to compel arbitration in accordance
with this paragraph, without breach of this arbitration provision.
16. NOTICES.
(A) Providing Notice. Any notice, direction or other instrument
required or permitted to be given by either party under this Agreement shall be
in writing and shall be sufficiently given if delivered personally, sent by
prepaid first class mail or transmitted by facsimile or other form of electronic
communication during the transmission of which no indication of failure of
receipt is communicated to the sender:
(I) in the case of a notice to Creo at:
Creo Products Inc.
0000 Xxxxxxx Xxx
Xxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Attention: Chief Executive Officer
Facsimile: (604) 437 - 9891
(II) in the case of a notice to printCafe at:
printCafe, Inc.
Forty 00xx Xxxxxx,
Xxxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Facsimile: (412) 456 - 3334
(B) Deemed Delivery. Any such notice, direction or other instrument, if
delivered personally, shall be deemed to have been given and received on the
date on which it was received at such address, or, if sent by mail, shall be
deemed to have been given and received on the date which is seven days after
which it was mailed, provided that if either such day is not a business day,
being a Saturday, Sunday or other statutory holiday, then the notice shall be
deemed to have been given and received on the business day next following such
day. Any notice transmitted by facsimile or other form of electronic
communication shall be deemed to
15
have been given and received on the date of its transmission provided that if
such day is not a business day or if it is received after the end of normal
business hours on the date of its transmission at the place of receipt, then it
shall be deemed to have been given and received at the opening of business in
the office of the recipient on the first business day next following the
transmission thereof. If normal mail service, facsimile or other form of
electronic communication is interrupted by strike, slowdown, force majeure or
other cause, a notice, direction or other instrument sent by the impaired means
of communication will not be deemed to be received until actually received, and
the party sending the notice shall utilize any other such service which has not
been so interrupted to deliver such notice
17. MISCELLANEOUS.
(A) Independent Contractors. The relationship of the parties is that of
independent contractors, and nothing contained in this Agreement shall be
construed to give either party the power to direct or control the day-to-day
activities of the other party or create or assume any obligation on behalf of
the other party.
(B) Amendments and Waivers. Any term of this Agreement may be amended
or waived only with the written consent of the parties or their respective
successors and assigns. Any amendment or waiver effected in accordance with this
Section shall be binding upon the parties and their respective successors and
assigns.
(C) Assignment; Successors and Assigns. This Agreement shall not be
assigned, by operation of law or otherwise, without the express prior written
consent of the party not seeking such assignment. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the respective
successors and permitted assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
(D) Governing Law; Jurisdiction. This Agreement and all acts and
transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in accordance with the laws
of the State of Delaware, without giving effect to principles of conflicts of
law. Each of the parties to this Agreement consents to the non-exclusive
jurisdiction and venue of the courts of the state and federal courts of the
State of Delaware.
(E) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
(F) Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
(G) Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, the parties agree to re-negotiate such
provision in good faith, in order to maintain the economic position enjoyed by
each party as close as possible to that under the provision rendered
unenforceable. In the event that the parties cannot reach a
16
mutually agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of the Agreement shall be enforceable in accordance with its terms.
(H) Entire Agreement. This Agreement and the documents referred to
herein are the product of both of the parties hereto, and constitute the entire
agreement between such parties pertaining to the subject matter hereof and
thereof, and merge all prior negotiations and drafts of the parties with regard
to the transactions contemplated herein and therein. Any and all other written
or oral agreements existing between the parties hereto regarding such
transactions are expressly canceled.
(I) Attorney's Fees. If any action at law or in equity (including
arbitration) is necessary to enforce or interpret the terms of this Agreement,
the prevailing party shall be entitled to reasonable attorney's fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled.
(J) Force Majeure. In the event that either party is prevented from
performing or is unable to perform any of its obligations under this Agreement
(other than a payment obligation) due to any Act of God, fire, casualty, flood,
earthquake, war, strike, lockout, epidemic, destruction of production
facilities, riot, insurrection, material or component unavailability or
shortage, or any other cause beyond the reasonable control of the party invoking
this section (a "Force Majeure") and if such party shall have used its best
efforts to mitigate its effects, such party shall give prompt written notice to
the other party, its performance shall be excused, and the time for the
performance shall be extended for the period of delay or inability to perform
due to such occurrences. Notwithstanding the foregoing, if such party is not
able to perform within 180 days after the event giving rise to the excuse of
Force Majeure, the other party may terminate this Agreement.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Strategic Alliance
Agreement to be executed as of the date first written above by their officers
thereunto duly authorized.
CREO PRODUCTS INC.
By: /s/ Xxxx Xxxxx
--------------------------------------
Name: Xxxx Xxxxx
Title: Assistant Corporate Secretary
Creo Products Inc.
PRINTCAFE, INC.
By: /s/ Xxxx X. Xxxx
--------------------------------------
Name: Xxxx X. Xxxx
Title: President and
Chief Executive Officer
SIGNATURE PAGE TO THE AMENDED AND RESTATED STRATEGIC ALLIANCE AGREEMENT
BETWEEN CREO PRODUCTS INC. AND PRINTCAFE, INC. DATED DECEMBER 31, 2001.
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SCHEDULE "A"
Contributed IP
1. theLoupe Requirements Document
2. theLoupe Use Cases
3. Demonstration Software
4. High Level Designs
5. theLoupe Business Plan
6. theLoupe Pricing Models
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