EXHIBIT 2.4
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LICENSE AGREEMENT
BETWEEN
MATHSOFT, INC.
AND
MATHSOFT ENGINEERING & EDUCATION, INC.
January 23, 2001
EXECUTION COPY
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LICENSE AGREEMENT
This License Agreement (the "Agreement") is made and entered into as of the
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Effective Date, by and between MathSoft, Inc., a Massachusetts corporation with
offices at 000 Xxxx Xxxxxx, Xxxxxxxxx, XX 00000 (hereinafter called "MathSoft")
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and MathSoft Engineering & Education, Inc., a Delaware corporation on behalf of
itself and its subsidiaries with offices at 000 Xxxx Xxxxxx, Xxxxxxxxx, XX
00000 (hereinafter collectively called, "MEE".)
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WHEREAS, MathSoft is engaged in the business of creating computer software and
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related documentation, and desires to grant to MEE a license to certain software
products consisting of programs and related documentation specifically
identified on Schedules A and B hereto (herein referred to as "Licensed
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Programs") and to certain Trademarks (as defined below) associated with the
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Licensed Programs;
WHEREAS, MEE MathSoft and MathSoft Corporate Holdings, Inc. ("Buyer") have
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entered into a Stock Purchase Agreement dated January 23, 2001 (the "Stock
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Purchase Agreement") whereby Buyer will buy all of the outstanding shares of
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capital stock of MEE (the "Transaction");
WHEREAS, this Agreement is integral to the Transaction;
WHEREAS, MEE desires to exploit and market the Licensed Programs and Trademarks
and MathSoft is willing to license MEE to do so, on the terms and conditions
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herein provided;
NOW, THEREFORE, in consideration of the premises, the granting of the license,
and the mutual covenants, agreements and obligations of the parties hereinafter
set forth, it is hereby agreed between the parties hereto as follows:
1. DEFINITIONS
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1.1 "Affiliate" means any entity directly or indirectly controlling,
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controlled by, or under common control with a party to this Agreement.
1.2 "Derivative Work" means a work that is created by any person other than
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MathSoft fixed in any tangible medium which is based upon the Licensed
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Programs such as a revision, modification, translation, abridgement,
condensation, expansion, collection, compilation, or any other form in
which the Licensed Programs may be recast, transformed, or adapted.
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1.3 "Documentation" means MathSoft's User Manuals, and related MathSoft
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publications which facilitate the operation or support of the Licensed
Programs by MEE . Schedule B shall contain a list of applicable
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Documentation.
1.4 "Effective Date" means January 23, 2001.
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1.5 "New Software" means any new MathSoft software that provides functional
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capabilities over and above those of the Licensed Programs, other than the
Upgrade of the Licensed Programs. "Object Code" means code resulting from
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the translation or processing of source code by a computer into machine
language or intermediate code, and thus is in a form that would not be
convenient to human understanding of the program logic, but which is
appropriate for execution or interpretation by a computer.
1.6 "Primary Support" means the support provided to end-users of the Licensed
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Programs including without limitation responding to end-user telephone
calls and providing information to end-users relating to the features and
behavior of the Licensed Programs which is described in the Documentation,
Axum tips and technical notes, or written form (including email and
facsimile).
1.7 "Secondary Support" means front-line support that MathSoft provides to MEE.
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Secondary Support provided by MathSoft shall include fixing or providing
workarounds for bugs that significantly affect the marketability of the
Licensed Products. MathSoft shall not provide support for any changes,
adaptations, modifications or Derivative Works. MathSoft shall provide
Secondary Support only during the hours of 8 a.m. to 5 p.m. Pacific Time
and shall respond to requests by MEE in a commercially reasonable time.
1.8 "Software Deliverables" means the actual Licensed Programs materials and
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Documentation to be delivered under this Agreement, as shall be described
in Schedules A and B hereto.
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1.9 "Trademarks" means the trademarks logos, symbols and other devices, all as
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identified on Schedule A and derivatives thereof.
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1.10 "Upgrade" means the next major release of Axum and all enhancements,
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upgrades, bug fixes and patches provided pursuant to MathSoft's Secondary
Support of MEE.
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1.12 "User Manuals" means the MathSoft publications describing the function,
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installation requirements and external software interfaces of the Licensed
Programs. Schedule B shall contain a list of applicable User Manuals.
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1.13 "Reseller" means any distributor, reseller or other authorized partner
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of MEE that distributes the Licensed Programs.
1.14 The following terms are defined in the following sections or schedules:
Acceptance Notice Schedule E
Acceptance Tests Schedule E
Corrected Gold Master Schedule E
Candidates
Delivery Date Schedule E
Design Error Schedule E
Failure Notice Schedule E
Feature Set Schedule E
Gold Master Candidates Schedule E
Inventory Reduction Period 20.3
Lucent Agreement 9.1
Minimum Royalty Amount Schedule C
Net Revenues Schedule C
New S-Plus Version Schedule A
StatSci Section 9.1
Testing Period Schedule E
2. LICENSE
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Subject to the terms and provisions of this Agreement, MathSoft hereby
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grants to MEE and MEE hereby accepts the following license:
2.1 Software License
(a) An exclusive (against MathSoft and all others), worldwide, license to
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use, reproduce, publicly display and distribute (in accordance with
Section 13) but not, except as set forth herein, to sublicense the
Licensed Programs.
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(b) An exclusive (against MathSoft and all others) license to use and
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reproduce Documentation and use, reproduce, distribute and publicly
display User Manuals.
(c) The exclusive right to sublicense the rights granted in Section 2.1(a)
and (b) to Resellers.
2.2 Trademark License
Subject to the terms and provisions of this Agreement, MathSoft hereby
grants MEE, and MEE hereby accepts, an exclusive (against MathSoft and all
others, except Resellers of MEE as set forth in paragraph 10.1), worldwide,
royalty free right to use the Trademarks in connection with the
manufacture, distribution, marketing and sale of Licensed Programs.
MathSoft shall retain all other intellectual property rights in the
Trademarks. The parties acknowledge that all use thereof shall inure to the
benefit of MathSoft.
3. TITLE
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3.1 Except as provided under Section 2, neither MEE nor any third party shall
acquire under this Agreement any right, title or interest in the Licensed
Programs, Trademarks, or Documentation. All rights not expressly granted
herein are reserved to MathSoft and its Licensors.
3.2 Ownership in the Licensed Programs, Trademarks, and Documentation, and any
copies or reproductions thereof, remains with MathSoft and MathSoft's
licensors.
4. ROYALTIES
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MEE shall pay MathSoft the royalties in the manner set forth in Schedule C.
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5. RELATIONSHIP
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The only relationship between MathSoft and MEE which is created by this
Agreement is that of licensor and licensee, and neither party shall be, nor
shall represent itself to be, an agent, employee, partner or joint venture
of the other, nor in any manner or form make promises, representations or
warranties or incur any liability, direct or indirect, contingent or fixed,
for or on behalf of the other party.
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6. MAINTENANCE AND SUPPORT
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6.1 MEE shall be responsible for providing Primary Support for the Licensed
Programs to its customers, sublicensees and Resellers, and MathSoft shall
only be responsible for providing timely support for the Licensed Programs
directly to MEE as Secondary Support.
6.2 MathSoft shall use commercially reasonable efforts to correct the defects
or errors, both in the Object Code and Documentation, reported to MathSoft
by MEE. MathSoft shall not be responsible for correcting deficiencies
caused in whole or in part by any changes, adaptations, modifications,
combination with other software (except as contemplated on Schedule F), or
use other than in accordance with the documentation created by MathSoft.
6.3 Neither party shall have any responsibility to provide either Primary
Support or Secondary Support to customers, sublicensees and Resellers of
all versions of Axum prior to version 6.0.
7. DOCUMENTATION
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MathSoft shall provide Documentation for the Licensed Programs of the type
and to the extent stated in Schedule B hereto but shall not be obligated to
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provide any enhancements or upgrades thereto, except for the Upgrade.
8. DELIVERY OF LICENSED PROGRAMS
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8.1 MathSoft shall deliver to MEE the Software Deliverables as set out in
Schedules A and B hereto.
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9. COMPLIANCE WITH LUCENT AGREEMENT.
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9.1 MEE acknowledges that the Licensed Programs incorporate intellectual
property licensed to Statistical Sciences, Inc., a wholly owned subsidiary
of MathSoft ("StatSci"), by Lucent Technologies, Inc., pursuant to that
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certain software license agreement by and between MathSoft and Lucent
Technologies, Inc., effective as of February 18, 1996, as amended (the
"Lucent Agreement").
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9.2 To allow MathSoft and StatSci to comply with the Lucent Agreement, MEE
hereby acknowledges that it has read and agreed to the terms of the Lucent
Agreement described in Schedule G.
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9.3 MEE covenants to (a) comply with the terms of the Lucent Agreement
described on Schedule G and (b) notify MathSoft and StatSci in writing upon
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knowledge of or notice to MEE of any breach of any such terms of the Lucent
Agreement.
9.4 MathSoft represents to MEE that Schedule G is accurate and complete and
that MathSoft and StatSci are in compliance with the terms and conditions
of the Lucent Agreement as of the Effective Date of this Agreement.
MathSoft covenants (a) to comply with the terms of the Lucent Agreement and
cause StatSci to comply; (b) to notify MEE in writing upon notice to
MathSoft of any breach by MathSoft or any of its Affiliates of any terms of
the Lucent Agreement and (c) not to assign or permit StatSci to assign the
Lucent Agreement other than in connection with a sale of the S-PLUS product
line or a sale of StatSci, either through a merger, asset sale or
otherwise, without the written consent of MEE, which shall not be
unreasonably withheld.
10. INTELLECTUAL PROPERTY PROTECTION
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10.1 MEE and its Resellers shall have all rights to use the Trademarks,
including, without limitation, in and on any business documents, invoices,
stationery, advertising, promotions, labels, packaging and otherwise in
connection with the Licensed Programs.
10.2 MEE shall cooperate fully and in good faith with MathSoft for the purpose
of securing and preserving MathSoft's rights in and to the Trademarks.
10.3 MathSoft and MEE shall not, during the term of this Agreement or
thereafter, impair MathSoft's title or rights in and to the Trademarks in
any jurisdiction or impair the validity of this License.
10.4 MEE shall notify MathSoft if it becomes aware of any infringement or
copying of the Trademarks by any third parties during the term of this
License, and MathSoft shall take the necessary and reasonable steps to
prohibit the unauthorized use and/or infringement of the Trademarks.
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10.5 MEE shall not use the Trademarks or any other trademarks, trade names,
logos or slogans of MathSoft or any word, symbol, or design confusingly
similar thereto, as part of its corporate name, or as part of the name of
any product of MEE other than (i) in connection with the Licensed Programs
or (ii) as permitted pursuant to the Trademark License Agreement between
MathSoft and MathSoft Corporate Holdings, Inc. dated the date hereof. MEE
shall not remove, alter, obscure or conceal any copyright, trademark or
other proprietary rights notices placed on or embedded by MathSoft on or in
the Licensed Programs. To protect and preserve the goodwill and image of
the Licensed Programs, MEE shall (1) conduct business in a manner that
reflects favorably at all times on the Licensed Programs and the reputation
of MathSoft; (2) avoid deceptive, misleading, or unethical practices that
are or might be detrimental to MathSoft, the Licensed Programs, or the
public, including any disparagement of MathSoft or the Licensed Programs;
(3) make no false or misleading representations with regard to MathSoft or
the Licensed Programs; (4) refrain from publishing or employing any
misleading or deceptive advertising material; and (5) refrain from making
any representations, warranties, or guarantees with respect to the
specifications, features, or capabilities of the Licensed Programs that are
inconsistent with the User Manuals or Documentation, including all
warranties and disclaimers contained in such User Manuals or Documentation.
MEE represents and covenants that it will not register under its own name
or on its behalf any Trademarks or any other trademarks, trade names, logos
or slogans of MathSoft or any word, symbol, or design confusingly similar
to the Trademarks, that it will not take any action adverse to MathSoft's
interest in the Trademarks, and that, to the best of its ability, it will
ensure that its designated Resellers who use the Trademarks under the terms
of this Agreement will also abide by the terms of this provision.
10.6 MathSoft shall provide MEE with copies of the Trademarks in order to assist
MEE in marketing the Licensed Program. Such Trademarks shall be used by MEE
in accordance with this Agreement and with MathSoft's policies and
practices regarding trademark usage as established and provided from time
to time by MathSoft. MEE may duplicate these materials as required, or
order additional copies at MathSoft's reproduction costs plus reasonable
markup for administrative expenses. MEE shall provide to MathSoft, upon
MathSoft's written request, copies of promotional materials displaying any
Trademark or referring to MathSoft. MEE agrees to change, at its expense,
any material which MathSoft, in its reasonable judgment, determines to be
inaccurate or misleading, or a misuse of any MathSoft Trademark.
10.7 MEE agrees to attribute the Trademarks listed in Schedule A hereto in any
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MEE advertising, brochures, documentation and literature that use such
Trademarks. Such attribution need only be made for the first use in a
particular document. Attribution shall be made by footnote reference and/or
by use of the international symbols "(R)" and "(TM)".
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11. MAINTENANCE OF TRADEMARKS
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MathSoft shall, at MathSoft's cost and expense, cause all registrations of
the Trademarks to be maintained and shall file registrations of the
Trademarks in all jurisdictions in which XXX xxxxx it reasonably necessary
in connection with this License. If MathSoft should obtain additional
registrations of the Trademarks other than those currently existing,
MathSoft shall promptly notify MEE of the existence of such additional
registrations which shall be included within this license at no additional
cost to MEE. If, under the law of any jurisdiction, registration of this
Agreement or the execution or registration of any registered user or
similar agreement in respect of the Trademarks is required or permitted in
order for MEE to obtain the full benefit of this Agreement, MathSoft shall,
upon the request of MEE and at the cost of MEE, use its best efforts to
register this Agreement or execute or register an appropriate registered
user or similar agreement in order that MEE shall obtain such full benefit
as aforesaid.
12. PUBLICITY; MARKETING
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12.1 MEE may prepare and release any material for publicity purposes which
advertises the features and functionality of the Licensed Programs, subject
to the provisions of Sections 10, 11, 12, and 13 hereof.
12.2 MEE shall use commercially reasonable efforts to promote, market, license
and distribute the Licensed Programs. MEE shall be solely responsible for
the costs of such promotion, marketing, licensing and distribution. MEE
shall be solely responsible for the billing and collection of all license
fees relating to the Licensed Programs.
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12.3 MEE shall be solely responsible for determining the price of the Licensed
Programs. The terms of any sublicense granted shall contain, at a minimum,
those set forth in Schedule D.
13. DISTRIBUTION
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13.1 MEE may distribute the Licensed Programs on any media or in any form
supplied by MEE in accordance with the rights set forth in this section and
in Sections 2, 10, 11, and 12 of this Agreement.
13.2 MEE agrees that in all cases where MEE duplicates, or authorizes any third
party to duplicate the Licensed Programs, MEE shall include appropriate
copyright and trademark notices on all Licensed Programs and Documentation.
13.3 MEE agrees only to use the Trademarks in connection with the Licensed
Products.
13.4 MEE shall be solely responsible for compliance with and obtaining of any
export licenses which may be required for the distribution of MEE products
incorporating the Licensed Programs. MathSoft shall provide answers (and
other reasonable assistance) to MEE technical questions relating to the
Licensed Programs where such questions are not answered by the
Documentation to enable MEE to obtain such export licenses.
14. LIMITED WARRANTY OF MATHSOFT; LIMITATION OF LIABILITY.
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14.1 MathSoft hereby represents and warrants as follows:
(a) That MathSoft has the full right and power to enter into and perform
according to the terms of this Agreement, and that it has the
authority and right to grant to MEE each of the rights herein granted
to MEE;
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(b) That, upon delivery and for a period of ninety (90) days thereafter,
the Licensed Programs and Documentation shall conform to the User
Manuals and any Upgrades will conform to the specifications in
Schedule F. As MEE's exclusive remedy for any material defect in the
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Licensed Program for which MathSoft is responsible, MathSoft shall
attempt through reasonable effort to correct or cure any reproducible
defect by issuing corrected instructions, a restriction, or a bypass.
In the event MathSoft does not correct or cure such nonconformity or
defect after it has had a reasonable opportunity to do so, MEE's
exclusive remedy shall be the refund of the amount paid for the
Licensed Program. MathSoft shall not be obligated to correct, cure, or
otherwise remedy any nonconformity or defect in the Licensed Program
if (i) MEE has made any changes whatsoever to the Licensed Program,
except changes made at the express direction of MathSoft, (ii) the
Licensed Program has been misused or damaged in any respect, or (iii)
MEE has not reported to MathSoft the existence and nature of such
nonconformity or defect promptly upon discovery thereof.
14.2 EXCEPT AS SET FORTH IN THIS SECTION 14, NEITHER MATHSOFT NOR ITS DIRECTORS,
OFFICERS, EMPLOYEES OR AFFILIATES MAKE ANY OTHER REPRESENTATION OR
WARRANTY, AND MATHSOFT AND ITS DIRECTORS, OFFICERS, EMPLOYEES AND
AFFILIATES HEREBY SPECIFICALLY DISCLAIM, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MATHSOFT AND ITS
DIRECTORS, OFFICERS, EMPLOYEES AND AFFILIATES DO NOT WARRANT THAT USE OF
THE LICENSED PROGRAMS SHALL BE UNINTERRUPTED OR ERROR FREE.
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14.3 EXCEPT FOR THE INDEMNITY GIVEN IN SECTION 18, IN NO EVENT SHALL MATHSOFT,
ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES BE LIABLE FOR
INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR OTHER
SIMILAR DAMAGES OF ANY KIND, WHETHER BASED ON TORT (INCLUDING WITHOUT
LIMITATION NEGLIGENCE OR STRICT LIABILITY), CONTRACT, OR OTHER LEGAL OR
EQUITABLE GROUNDS, INCLUDING ECONOMIC DAMAGE OR INJURY TO PROPERTY AND LOST
PROFITS, EVEN IF THAT PARTY HAS BEEN ADVISED OR HAD REASON TO KNOW, OR
KNEW, OF THE POSSIBILITY OF THE FOREGOING, UNDER THIS AGREEMENT. THE
CUMULATIVE LIABILITY OF MATHSOFT TO MEE FOR ALL CLAIMS RELATING TO THE
LICENSED PROGRAMS AND THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION
SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE
AMOUNT SET FORTH IN SECTION 14.4. THIS LIMITATION OF LIABILITY IS INTENDED
TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE
BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. MATHSOFT SHALL HAVE NO LIABILITY
FOR LOSS OF DATA OR DOCUMENTATION RESULTING FROM USE OF THE LICENSED
PROGRAMS, IT BEING UNDERSTOOD THAT MEE (OR ITS CUSTOMER) IS RESPONSIBLE FOR
REASONABLE BACKUP PRECAUTIONS.
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14.4 NOTWITHSTANDING ANY CONTRARY PROVISION OF ARTICLE XII OF THE STOCK PURCHASE
AGREEMENT OR THIS AGREEMENT, ALL BUYER INDEMNIFIED PARTIES (AS DEFINED IN
THE STOCK PURCHASE AGREEMENT), COLLECTIVELY, SHALL NOT HAVE ANY RIGHT TO
SEEK OR OBTAIN INDEMNIFICATION FOR ANY LOSSES OR LIABILITIES RELATED TO
THIS AGREEMENT IN AN AGGREGATE AMOUNT EXCEEDING THE LICENSE FEES RECEIVED
BY MATHSOFT FOR THE LICENSED PROGRAM (WHETHER UNDER THIS AGREEMENT OR PRIOR
TO THE TRANSACTION) DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT
GIVING RISE TO THE CLAIM. THE INDEMNITY CEILING CONTAINED IN THE
IMMEDIATELY PRECEDING SENTENCE SHALL NOT IN ANY CIRCUMSTANCES INCREASE THE
$1,700,000 LIMIT CONTAINED IN THE FIRST SENTENCE OF SECTION 12.06 OF THE
STOCK PURCHASE AGREEMENT.
15. WARRANTIES OF MEE
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MEE hereby warrants
(a) that MEE has the full right and power to enter into and perform
according to the terms of this Agreement.
(b) that MEE shall not disclose or distribute (except as expressly
authorized herein or as required by law) the Licensed Programs.
16. CONFIDENTIALITY. This Agreement and the materials licensed hereunder shall
be subject to the confidentiality provisions of the Stock Purchase
Agreement.
17. THIRD PARTY RIGHTS AND SUPPORT
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17.1 Where MEE sublicenses the Licensed Programs to a third party, the third
party may use the Licensed Programs only for the term and in the manner
provided for in the agreement between MEE and the third party containing,
at a minimum, the terms set forth in Schedule D applicable to the Licensed
Programs. The rights and obligations set forth therein shall survive the
termination of this Agreement.
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17.2 MEE is responsible for Primary Support of all third parties.
18. INFRINGEMENT
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18.1 MathSoft shall defend, at its expense, and shall pay all cost and damages
arising in connection with any third party action brought against MEE that
the Licensed Programs or any User Manuals or Documentation, or the
Trademarks, infringe a United States patent, copyright, trademark or trade
secret, or other proprietary rights, or constitutes an unauthorized use of
any trade secret or other proprietary rights, provided that MathSoft shall
have had sole control of, and, at MathSoft's expense, MEE shall reasonably
assist in, the defense of any such action and all negotiations for its
settlement or compromise, and provided further that MathSoft shall have no
liability to MEE under this Section or otherwise if to the extent that any
infringement or allegation thereof:
(a) is based upon modification to the Licensed Programs not made by
MathSoft or its contractors; or
(b) is based upon adherence to design modifications, specifications,
drawings or written instructions which MathSoft is directed by MEE to
follow; or
(c) resides in a software, hardware or other product or material which is
not of MathSoft's origin; or
(d) is based upon use of Licensed Programs in combinations with other
software, hardware or other product or material not made by MathSoft
(e) is based on MEE's use of a version of the Licensed Programs older than
the latest version provided to MEE by MathSoft and use of that latest
version would have avoided the infringement or claim thereof.
18.2 If all or any portion of a Licensed Program is, or in the opinion of
MathSoft may become, the subject for any claim or suit for infringement of
any intellectual property rights, MEE shall cease use, distribution and
reproduction of the Licensed Program and MathSoft shall at its expense do
one of the following things: (a) procure for MEE the right to use the
Licensed Programs or the affected parts thereof; (b) replace the Licensed
Programs or affected parts with other suitable programs; (c) modify the
Licensed Programs or affected parts to make it non-infringing; or (d)
terminate this License and refund all monies paid by MEE to MathSoft
hereunder.
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18.3 In no event shall MathSoft's liability under this Section 18 (when combined
with all other liabilities of MathSoft under this Agreement) exceed the
fees paid to MathSoft (whether under this Agreement or prior to the
Transaction) for the Licensed Programs during the twelve months immediately
preceding the event giving rise to the claim. THIS SECTION 18 STATES
MATHSOFT'S ENTIRE OBLIGATION TO MEE WITH RESPECT TO ANY CLAIM OF
INFRINGEMENT UNDER THIS AGREEMENT.
19. ACCEPTANCE
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19.1 Upon execution of this Agreement by MEE, MEE shall be deemed to have
accepted version 6.0 of the Licensed Programs.
19.2 MathSoft shall prepare and deliver to MEE Axum 7.0 Licensed Program in
accordance with Schedules E and F.
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19.3 The parties shall comply with the delivery and acceptance procedures for
Axum Version 7.0 as described in Schedule E.
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20. TERM AND TERMINATION
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20.1 This Agreement shall terminate on the date that is eighteen (18) months
from the date that MEE delivers the Acceptance Notice for the Gold Master
Candidates for Axum Version 7.0 (as defined in Schedule E) to MathSoft.
20.2 Either party may terminate this Agreement: (1) on sixty (60) days written
notice, for material breach or default, unless the breach is corrected
within sixty (60) days of such notice or, upon written agreement of both
parties, diligent efforts to correct such breach have been undertaken
within such sixty (60) day period and are continuing; or (2) immediately if
the other party shall cease conducting business in the normal course, make
a general assignment for the benefit of creditors, suffer or permit the
appointment of a receiver for its business or assets, or shall avail itself
of or become subject to any proceeding under the bankruptcy laws or any
other statute of any state relating to insolvency or the protection of
rights and creditors.
20.3 Upon expiration or termination of this Agreement, MEE shall have the right
to (a) market, sell or otherwise distribute its inventory of the Licensed
Programs for three (3) months following expiration or termination, subject
to the royalty provisions of Section 5 (the "Inventory Reduction Period")
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or (b) destroy its inventory of Licensed Programs without obligation or
liability to MathSoft for royalties under Section 5.
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20.4 Upon termination of this Agreement, other than for material breach by MEE,
MEE may retain copies of the Licensed Programs solely for the purpose of
providing maintenance and support to MEE's customers that have sublicenses
for the Licensed Programs pre-existing at the date of termination or who
acquire such sublicenses during the Inventory Reduction Period. The
obligations of confidentiality, indemnity and payment on both parties shall
survive the termination of this Agreement. No other obligation shall
survive termination of this Agreement except those which by their language,
nature or context are intended to survive termination hereunder. End User
licenses properly granted prior to the date of termination shall survive to
the end of their then current term in accordance with the terms, conditions
and requirements thereof. MEE shall destroy all other copies of the
Licensed Programs, Documentation, and marketing and promotional materials
bearing the Trademarks or related to the Licensed Programs at the end of
the Inventory Reduction Period, and shall so certify to MathSoft in a
writing signed by an executive officer of MEE
21. NOTICES
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All notices, requests and other communications to either party hereunder
shall be in writing (including telecopy or similar writing) and shall be
given,
if to MEE, to:
MathSoft Engineering & Education, Inc.
000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Chief Executive Officer
Telecopy: (000) 000-0000
with a copy to:
H. Xxxxx Xxxxxx, P.C.
Xxxxx X. Xxxxxx
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
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if to MathSoft:
MathSoft, Inc.
0000 Xxxxxxxx Xxxxxx X. #000
Xxxxxxx, XX 00000
Xxxxxxx X. Xxxxxx Chief Executive Officer
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxx, Xx.
Xxxxx Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
22. UNFORESEEN EVENTS
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Notwithstanding anything else in this Agreement, no default, delay or
failure to perform on the part of either party shall be considered a breach
of this Agreement (except for a failure to make a payment when due) if such
default, delay or failure to perform is shown to be due to causes beyond
the reasonable control of the party charged with a default, including, but
not limited to, causes such as strikes, lockouts or other labor disputes,
riots, civil disturbances, actions or inactions of governmental authorities
or suppliers, epidemics, war, embargoes, severe weather, fire, earthquake,
acts of God or public enemy, nuclear disasters, or default of a common
carrier. If any such delay on either party's part extends beyond sixty (60)
days, the other party may cancel any deliverable or service so delayed
without liability or obligation therefore.
23. SEVERABILITY
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In the event that any one or more of the provisions of this Agreement shall
for any reason be held to be unenforceable in any respect under the law,
such unenforceability shall not affect any other provision, but this
Agreement shall then be construed as if such unenforceable provision or
provisions had never been contained herein.
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24. ENTIRE AGREEMENT
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This Agreement, the Schedules hereto and the Stock Purchase Agreement
supersede all prior or contemporaneous proposals, oral or written, all
negotiations, conversations or discussions between the parties relating to
this Agreement and all past course of dealing or industry custom. MEE and
MathSoft acknowledge that they have not been induced to enter into this
Agreement by any representations or statements, oral or written, not
expressly contained herein, and that they have had an opportunity to have
this Agreement reviewed by legal counsel. The terms and conditions of this
Agreement shall prevail, notwithstanding any variance with the terms and
conditions of any subsequent purchase order or other written instrument
submitted by either party, whether formally rejected by the other party or
not.
25. GENERAL CONDITIONS
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25.1 This Agreement shall be construed and enforced exclusively in accordance
with the laws of the Commonwealth of Massachusetts applicable to contracts
made and to be performed entirely in the Commonwealth of Massachusetts
without regard to conflicts of laws principles.
25.2 The International Sale of Goods Convention will not apply to this
Agreement.
25.3 This Agreement may be modified only by a writing signed by each party.
However, this Agreement consists of this document and various schedules
which shall be deemed a part of the full Agreement. If additional products
are brought under this Agreement by an addendum, such addendum shall be
deemed a part of this Agreement from the date of its execution and
attachment.
25.4 Headings included in this Agreement are for convenience only and are not to
be used to interpret the agreement between the parties.
25.5 The failure of either party to enforce at any time any of the provisions
hereof shall not be construed to be a waiver of the right of such party
thereafter to enforce any such provisions.
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26. ASSIGNABILITY
-------------
26.1 The provisions of this Agreement shall inure to the benefit of and be
binding upon the parties hereto, their successors and assigns, but neither
party may assign this Agreement without the express written consent of the
other party, except that (i) both MEE and MathSoft may assign to an
Affiliate or a purchaser of all or substantially all its stock or assets or
pursuant to a merger and (ii) MEE may collaterally assign its rights
hereunder to one or more lenders providing financing for the transactions
contemplated by the Stock Purchase Agreement. Such consent shall not be
unreasonably withheld.
26.2 In the event of assignment by MEE or MathSoft of this Agreement, such party
shall promptly notify the other party in writing of the assignment.
27. RESELLERS
---------
MEE shall require that each of its Resellers comply with MEE's obligations
hereunder, except that MEE shall be solely responsible for making all
payments to MathSoft hereunder.
If a MEE subdistributor fails to fulfill one or more of its obligations
under this Agreement, MathSoft may, upon its election and in addition to
any other remedies that it may have, at any time notify MEE in writing of
such breach and require MEE to terminate all the subdistributor's rights
granted in this Agreement by not more than two (2) months' written notice
to such subdistributor specifying any such breach, unless within the period
of such notice all breaches specified in such notice shall have been
remedied; upon such termination such subdistributor shall within thirty
(30) days immediately discontinue use of and return or destroy all copies
of the Licensed Programs.
28. AUDITS
------
To ensure compliance with the terms of this Agreement, MathSoft shall have
the right to have an audit of all of the relevant accounting and sales
books and records of MEE conducted by an independent certified public
accountant reasonably acceptable to both parties whose fee is paid by
MathSoft. Any audits shall be conducted during regular business hours at
MEE's offices and in such a manner as not to interfere with MEE's normal
business activities. In no event shall audits be made hereunder more
frequently than once annually. If any audit discloses any under-reporting,
MEE shall promptly pay MathSoft such amount, together with interest thereon
at the rate of one percent (1%) per month or the highest interest rate
allowed by law, whichever is lower, from the date on which such amount
became due to MathSoft from MEE.
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29. RECORD KEEPING
---------------
MEE shall maintain a complete, clear and accurate record of all
transactions related to this Agreement for which payments are due to
MathSoft hereunder for a seven (7) year period. The record shall include,
but is not limited to, maintenance and lease agreements, and the number of
copies and price of the Licensed Programs and bundled programs furnished to
all customers.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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EXECUTED BY THE PARTIES BELOW
MATHSOFT ENGINEERING
& EDUCATION, INC. MATHSOFT, INC.
------------------- ---------------
Signature: /s/ Xxxxxx X. X'Xxxxx Signature: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxx X. X'Xxxxx Name: Xxxxxxx. X. Xxxxxx
Title: Vice President Title: President and Chief
Executive Officer
Date: January 23, 2001 Date: January 23, 2001
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