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EXHIBIT (c)(2)
LICENSE AGREEMENT
This License Agreement (the "Agreement") is entered into as of October 15,
1998 (the "Effective Date") by and between Symantec Corporation, a Delaware
corporation, Symantec Limited, an Ireland corporation (collectively,
"Symantec"), and Quarterdeck Corporation, a Delaware corporation
("Quarterdeck").
RECITALS
Quarterdeck is the creator and owner of, or otherwise has the right to
license, the product known as CleanSweep, as described in more detail in Exhibit
A (the "Quarterdeck Software"). Symantec and Quarterdeck have entered into an
Agreement and Plan of Merger (the "Merger Agreement") that contemplates the
acquisition of Quarterdeck by Symantec. Symantec wishes to license the
Quarterdeck Software for distribution as a stand-alone product and as part of a
suite of other products. In connection with the Merger Agreement, Quarterdeck
has agreed to grant such licenses, subject to the terms and conditions set forth
below.
AGREEMENT
The parties agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have the
following meanings:
"AFFILIATE" means, as to any legal entity, any other legal entity that is
directly or indirectly controlling, controlled by, or under common control with,
such legal entity. In this context, control means ownership of 100% of the
voting stock or the equivalent.
"AGREEMENT" shall have the meaning ascribed thereto in the first paragraph
to this Agreement.
"BUSINESS DAY" means any day other than a Saturday, Sunday or federal or
California state holiday.
"CONSUMMATION" means the purchase of Shares pursuant to the Offer (as those
terms are defined in the Merger Agreement) in accordance with the terms of the
Merger Agreement.
"DELIVERABLES" shall mean the items relating to the Quarterdeck Software
described in Exhibit B.
"DERIVATIVE WORK" shall mean any modification, translation, port,
adaptation, modification, extension, improvement, compilation, abridgment or
other form in which the Quarterdeck Software may be recast, transformed or
adapted for use on computer systems, including, but not limited to, any form
which would infringe any copyright to the Quarterdeck Software.
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"EFFECTIVE DATE" shall have the meaning ascribed thereto in the
introductory paragraph to this Agreement.
"INTELLECTUAL PROPERTY RIGHTS" means all of Quarterdeck's intellectual
property rights worldwide arising under statutory or common law, and whether or
not perfected, including, without limitation, all rights relating to patents,
copyrights, trade secrets and any rights analogous thereto.
"LICENSES" shall mean the licenses granted in Section 2 below.
"NET REVENUE" means Symantec's actual gross revenues (invoiced amounts, net
of actual returns) from marketing, distribution or other revenue-generating use
of the Quarterdeck Licensed Products. No royalties will be earned on sales, use,
excise and similar taxes, currency exchange fees, and shipping costs (including,
but not limited to, insurance and transportation costs and duties) to the extent
such amounts are invoiced separately. If the Quarterdeck Licensed Products are
distributed with other titles in a package for a single price, which other
titles are distributed by Symantec stand-alone through the retail channel, the
Net Revenue attributable to the Quarterdeck Licensed Products will be determined
by prorating the revenues from the sale or license of the package according to
the distribution prices to Xxxxxx Micro for the separate works contained in the
package. Notwithstanding the foregoing, any Symantec product other than Norton
Utilities, Norton Antivirus, Crashguard, Norton Web Services, pcANYWHERE, Norton
Mobil Essentials or Winfax (and follow-on versions of such products) will not be
considered for purposes of prorating the revenues from the sale or license of
any such package unless it is the first or second top selling title in its
category. Further, the Licensed Quarterdeck Product shall be deemed to be sold,
licensed or otherwise distributed as part of a bundle with another product(s) if
it is sold, licensed or otherwise distributed for a discounted price (or a zero
price), conditioned in whole or part on the customer's purchase, license or
other acquisition of such other product(s). Amounts received by Symantec as
deposits or advances will not be deemed to be revenue until shipment or other
revenue-generating use of the Quarterdeck Licensed Products to the party making
the deposits or advances have been made against such deposits or advances or
Symantec recognizes such amounts as revenue on any other basis. For purposes of
calculating Royalties, revenues in foreign currencies will be deemed converted
into United States Dollars at the average monthly exchange rates used generally
by Symantec in its financial statements.
"ROYALTIES" shall mean the royalties payable with respect to distribution
of the Quarterdeck Licensed Products, as described in Section 4.1 below.
"QUARTERDECK DEVELOPMENT LICENSE" means the license granted in Section 2.2.
"QUARTERDECK DISTRIBUTION LICENSE" shall have the meaning described in
Section 2.1 below.
"QUARTERDECK LICENSED PRODUCTS" shall mean binary executable versions of
the Quarterdeck Software and Derivative Works of the Quarterdeck Software that
Symantec may create if it receives the Source Code for the Quarterdeck Software
from the escrow agent referenced in Section 7.
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"QUARTERDECK LICENSES" shall mean the Quarterdeck Distribution License and
the Quarterdeck Development License.
"QUARTERDECK SOFTWARE" shall have the meaning described in the recitals
above and Exhibit A to this Agreement.
"QUARTERDECK TRADEMARKS" shall mean the "CleanSweep" xxxx and such other
related marks owned by Quarterdeck as the parties may agree.
"SOURCE CODE" shall mean the human readable form of computer software,
including any corresponding comments and annotations.
"UPDATES" shall mean bug fixes, modifications, variations, or enhancements
made to a product without a significant change in the functionality of the
product, the packaging (other than to indicate a change in the version number to
the right of the decimal point), or the version number to the left of the
decimal point.
"UPGRADES" shall mean new releases and versions which include significant
changes to functionality, new packaging or a change in the version number to the
left of the decimal point.
2. GRANT OF RIGHTS.
2.1 DISTRIBUTION LICENSE FOR QUARTERDECK LICENSED PRODUCTS. Subject to the
provisions of this Agreement, Quarterdeck hereby grants to Symantec a
nonexclusive, world-wide, non-transferable, license under all Quarterdeck
Intellectual Property Rights to use, copy, distribute, display and perform the
Quarterdeck Licensed Products during the term of such license specified in
Section 6, except that no right is granted to distribute Japanese language
versions of the Quarterdeck Licensed Products in Japan except to the extent that
Symantec may do so without giving rise to a violation of any of the rights
granted to Marubeni Corporation under the agreement between Marubeni Corporation
and Quarterdeck dated September 29, 1997, and except for any other distribution
arrangement to which Symantec secures Marubeni Corporation's written consent
(the "Quarterdeck Distribution License"). Symantec may sublicense the
Quarterdeck Licensed Products by permitting bona fide distributors and resellers
to sell end-user licenses to Quarterdeck Licensed Products, by permitting
duplication and distribution of the Quarterdeck Licensed Products by OEMs, and
by permitting end-users to duplicate the Quarterdeck Licensed Products in
connection with site licenses and similar transactions provided that such
transactions are consistent with Symantec's normal business practices Symantec
will be responsible for manufacturing all Quarterdeck Licensed Products
distributed by it pursuant to this Agreement. Notwithstanding the foregoing,
Symantec will not enter into site licenses, OEM agreements or other arrangements
or agreements that provide for unlimited numbers of seats of the Quarterdeck
Licensed Products to be distributed or used for a single price or otherwise
allow any third party to create copies of the Quarterdeck Products without
reporting the number of copies made, distributed and used to Symantec. Symantec
will be entitled to modify the documentation for the Quarterdeck Licensed
Products and distribute such modified documentation with the Quarterdeck
Licensed Products, provided that Symantec will retain all Quarterdeck copyright,
trademark and similar notices in such documentation. The
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Quarterdeck Licensed Products will be distributed by Symantec or its OEMs with
an end-user license in substantially the form of the license set forth in
Exhibit C or such other form of license that provides substantially the same
protections to Quarterdeck.
2.2 DEVELOPMENT LICENSE FOR QUARTERDECK SOFTWARE. Subject to the
provisions of this Agreement, Quarterdeck hereby grants to Symantec a
nonexclusive, world-wide, non-transferable, license under all Quarterdeck
Intellectual Property Rights to use, copy, and create Derivative Works during
the term of this Agreement from the materials and information provided to
Symantec pursuant to Section 5.3 or from any Source Code of the Quarterdeck
Software (the Quarterdeck Source Code) that Symantec may obtain from the escrow
established pursuant to Section 7 solely for the purpose of developing,
localizing, compiling to binary form and supporting Derivative Works of the
Quarterdeck Software. Symantec may not distribute, sublicense or make available
to any third party the materials provided to Symantec pursuant to Section 5.3,
the Quarterdeck Source Code, or the Source Code for Derivative Works of the
Quarterdeck Source Code.
2.3 LICENSES TO AFFILIATES. Symantec's Affiliates shall have the benefit
of the Quarterdeck Licenses, provided that any such Affiliate shall also be
bound by the applicable obligations, limitations and covenants set forth in this
Agreement.
2.4 NO OTHER LICENSES. Neither party grants any other licenses or rights,
except as specifically set forth above. Without limiting the foregoing, Symantec
acknowledges that (i) it is not authorized and agrees not to decompile,
disassemble or otherwise reverse engineer the Quarterdeck Software unless and
until Symantec rightfully receives the Source Code therefor from the escrow
seferenced in Section 7, and (ii) it is granted no right to use or refer to
"CleanSweep" or any other Ouarterdeck trademark, trade name, trade dress or
other designation. Further, Symantec agrees not to advertise the expected
availabilily of the Quarterdeck Licensed Product from Symantec, except that
Symantec may disclose its intentions to incorporate the Quarterdeck Licensed
Product into its Norton Systemworks products after Consummation in response to
customer and media inquiries, may make disclosures that have been approved by
Quarterdeck and may also disclose the terms of this Agreement only in the manner
and to the extent required by applicable law.
3. DELIVERABLES. Promptly upon completion thereof, Quarterdeck will
deliver to Symantec the Object Code Deliverables relating to the enhancements of
the Quarterdeck Software created pursuant to Section 5.3. Quarterdeck shall
subsequently deliver each revision to such enhancements promptly after
completion thereof. Quarterdeck shall deposit the Source Code Deliverables for
the current version of the Quarterdeck Software with the escrow agent referenced
in Section 7 upon the establishment of such escrow and shall thereafter deposit
the Source Code Deliverables relating to enhancements of the Quarterdeck
Software created pursuant to Section 5.3 promptly after the creation thereof so
long as this Agreement and such escrow remain in force.
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4. PAYMENTS.
4.1 ROYALTIES. Symantec shall pay to Quarterdeck Royalties equal to 8% of
Net Revenue from the distribution or other revenue producing exploitation of
Quarterdeck Licensed Products, provided that the Royalty rate shall be 6% if the
Quarterdeck Distribution License commences because Quarterdeck is obligated to
pay a Company Fee (as defined in the Merger Agreement) as a result of a Willful
Breach (as defined in the Merger Agreement) of Section 5.2(a), (b) or (c) of the
Merger Agreement, and provided further that for copies of the Quarterdeck
Licensed Products the royalty per seat shall not be less than: (i) $1.25 in the
case of stand-alone sales of the Quarterdecks Software, (ii) $0.75 in the case
of bundles of the Quarterdeck software as part of Norton Systemworks and (iii)
$0.20 for OEM transactions (the number of seats in any transaction being equal
to the total number of users authorized to use the Quarterdeck Licensed Products
under such transaction) provided however, all such OEM transactions will allow
the Quarterdeck Licensed Products to be distributed only as part of a bundle
with other products that are marketed stand-alone in the retail channel, where
the Quarterdeck Licensed Products comprise less than 35% of the value of the
bundle as a whole (based on the retail prices of the components of the bundle
sold separately) and acquiring the Quarterdeck Software is not a primary reason
that customers typically acquire the bundle. No Royalties will be payable with
respect to copies of the Quarterdeck Licensed Products that are used internally
by Symantec or its Affiliates for non-revenue generating activities.
4.2 REPORTS AND ACCOUNTING. Royalties payable pursuant to this Section
shall be calculated and paid, on a quarterly basis, not more than 30 days after
the last day of the fiscal quarter in which the Net Revenue giving rise to such
Royalties are recognized by Symantec. Symantec shall deliver to Quarterdeck,
along with its payment of Royalties due for each quarter, a written report
showing, in detail, its calculation of Royalties payable with respect to such
quarter. At Quarterdeck's request, Symantec will also provide to Quarterdeck a
report of the number of Not-For-Resale copies distributed by Symantec for the
quarter. Symantec shall maintain such books and records as are necessary to
properly calculate the amounts of Royalties to be paid pursuant to this
Agreement. An independent certified public accountant selected by Quarterdeck
from any major accounting firm may, upon reasonable notice and during normal
business hours, but no more often than once each year, inspect the records of
Symantec. Any information revealed in such inspection shall be kept confidential
and not disclosed to anyone, except to the extent necessary to identify to
Quarterdeck, Symantec or any factfinder in any action instituted to enforce the
terms of this Agreement, any inaccuracy which may be found in the amount of
Royalties due to Quarterdeck. Quarterdeck shall bear the cost of any such audit,
except that if the audit reveals shortfall in payment of Royalties of 5% or
more, but not less than $10,000, Symantec shall pay for the reasonable cost of
such audit, and Quarterdeck may thereafter conduct a follow up audit at any time
at Symantec's expense. Symantec's determination of the payments due Quarterdeck
under this Agreement will be deemed conclusive unless, within 24 months from the
termination of the Agreement, Quarterdeck notifies Symantec in writing of any
error in such payments.
5. SUPPORT.
5.1. TECHNICAL SUPPORT. Symantec will be responsible for answering the
questions of and supporting the needs of its own customers. Quarterdeck will
provide Symantec with
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reasonable support by telephone and/or electronic mail, to answer Symantec's
questions and to assist Symantec in supporting Symantec's customers with respect
to the Quarterdeck Software. Quarterdeck will also provide Symantec, and its
customers, with support in person on a time and materials basis at Quarterdeck's
then standard published rates therefor.
5.2. TRAINING. Quarterdeck will make available at Symantec's facilities in
Santa Monica, California, on a mutually agreed date no later than November 15,
1998, qualified members of its staff to provide training of employees of
Symantec relating to the Quarterdeck Software, in sufficient detail as to
provide Symantec's technical support, marketing and sales people with sufficient
knowledge to permit proper marketing and distribution of the Quarterdeck
Software. The training contemplated by this Section shall not exceed a total of
sixteen (16) hours.
5.3 CUSTOMIZATION. Within one business day after the Effective Date,
Quarterdeck shall provide Symantec or a third party engaged by Symantec and
acceptable to Quarterdeck such information as Symantec shall reasonably require
to (i) modify graphical elements of the user interface (such as icons or splash
screens) of the Quarterdeck Licensed Product (but not modify the structure or
sequences associated with such user interface), (ii) reasonably integrate the
Quarterdeck Licensed Product with the Symantec products included in Symantec's
Norton SystemWorks bundle with respect to installation, automatic updating,
changing all of the registry keys to place them under the Symantec software
registry key and on-line registration, as well as by making changes to the About
Box and to graphical elements (bit maps) of the user interface as provided in
clause (i) above, and (iii) translate the Quarterdeck Licensed Product into
foreign languages. Additionally, commencing upon the Effective Date, a
reasonable number of Symantec's personnel or a third party engaged by Symantec
and acceptable to Quarterdeck may be resident at Quarterdeck's facility and work
with Quarterdeck personnel to integrate the Quarterdeck Licensed Product with
Symantec's Norton SystemWorks products as provided above. To the extent that
Quarterdeck's personnel are unable or unwilling to timely make the changes
required hereunder, such Symantec personnel will be given reasonable access to
those parts of the Source Code, if any, for the Quarterdeck Licensed Products
required for the sole purpose of creating the modifications authorized by this
Section 5.3. Promptly after completion of such modifications, Quarterdeck will
compile a version or versions of such modified Quarterdeck Licensed Products and
provide the executable form of such modified Quarterdeck Licensed Products to
Symantec for testing. Quarterdeck will use commercially reasonable efforts to
make or, at its option, will allow Symantec to make such corrections as are
required to repair errors in such modified Quarterdeck Licensed Products that
were introduced by any of the work done pursuant to this Section 5.3 and will
promptly provide such corrected versions of the Quarterdeck Licensed Products
upon completion to Symantec for further testing. This process will be repeated
until Symantec is reasonably satisfied with the work performed pursuant to this
Section 5.3. Quarterdeck shall establish and notify Symantec of rules for
Symantec's personnel intended to ensure that such personnel do not receive
sensitive or confidential information of Quarterdeck. Within two days after the
Effective Date, Quarterdeck shall provide Symantec with the entire help system,
the related FrameMaker files and those things necessary to incorporate the
foregoing into Symantec's products. Provided that Symantec's personnel abide in
all respects by such rules and that Symantec does not breach its obligations to
complete Consummation and
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acquire Quarterdeck under the Merger Agreement, Quarterdeck covenants not to xxx
Symantec for misappropriation of trade secret information based solely on
Symantec's use of information obtained by such personnel while at Quarterdeck's
facility pursuant to this Section 5.3. In addition to the changes described
above, Quarterdeck will, subject to Section 11, make such changes as are
required to substitute Symantec's trademarks for Quarterdeck's trademarks, trade
names or trade dress from the Quarterdeck Products. The parties understand and
agree that Symantec is granted no right to distribute or otherwise exploit any
of the software, materials or information provided to it under this Section 5.3
unless and until the Quarterdeck Distribution License commences.
6. TERM AND TERMINATION.
6.1 TERM. The Quarterdeck Development License will commence upon the
Effective Date. The Quarterdeck Distribution License will commence upon the
earliest to occur of (i) Consummation or (ii) an event giving rise to an
obligation on the part of Quarterdeck to pay a Company Fee (as defined in the
Merger Agreement). If the Merger Agreement terminates before the Consummation
for any reason other than the occurrence of such an event, then Symantec shall
neither have nor exercise any rights under the Quarterdeck Licenses, and this
Agreement shall immediately terminate upon such termination of the Merger
Agreement.
6.2 TERMINATION OF THE LICENSE FOR BREACH. The term of this Agreement
shall begin on the Effective Date and will terminate immediately if after the
Consummation, Symantec fails to close the Merger (as defined in the Merger
Agreement) in accordance with the terms of the Merger Agreement or if the Merger
has not occurred by January 31, 1999 and the Merger Agreement has not been
terminated as a result of an event giving rise to an obligation on the part of
Quarterdeck to pay a Company Fee. The term of this Agreement will terminate 30
days after the receipt by either party of written notice that it is in material
breach of any terms of this Agreement, unless such party cures such breach
within such 30-day period. For purposes of this Agreement, a material breach
will be a breach or series or pattern or breaches that lead to loss or damage of
no less than $350,000 in the aggregate to the non-breaching party. Any such
notice shall provide, in reasonable detail, a description of the alleged breach
and the requested cure of that breach. Provided however, that if Symantec
disputes the right of Quarterdeck to terminate this Agreement for the reasons
specified in such notice and notifies Quarterdeck thereof promptly after
receiving the notice of breach, then the parties agree that the licenses granted
to Symantec hereunder shall continue to remain in full force and effect until
Symantec is found to have committed and not timely cured a material breach under
the dispute resolution process provided for in Section 6.4.
6.3 POST TERMINATION RIGHTS. Any termination of this Agreement shall not
affect the rights of any distributor, dealer, reseller or end-user that has
received the Quarterdeck Licensed Products from a party in accordance with the
terms of this Agreement prior to its termination, provided that after notice of
termination of this Agreement, Symantec shall not have the right to distribute
quantities of the Quarterdeck Licensed Products that are disproportionate to the
quantities distributed prior to that time. Upon termination of this Agreement,
Symantec will return to Quarterdeck all of the Quarterdeck Source Code, if any,
in its possession or control, and
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Symantec shall immediately cease any sale, license or other distribution of
Quarterdeck Licensed Products. Further, notwithstanding the foregoing, if such
termination was after Consummation and Symantec fails to close the Merger in
accordance with the terms of the Merger Agreement or if the Merger has not
occurred by January 31, 1999, then the rights of distributors, dealers and
resellers to distribute the Quarterdeck Products shall immediately terminate..
The provisions of this Agreement that, by their sense and context, are intended
to survive termination of this Agreement (including without limitation all
obligations of confidentiality) shall survive termination and remain fully
enforceable thereafter.
6.4 DISPUTE RESOLUTION PROCEDURE. If an alleged breach is not cured to the
non-breaching party's satisfaction, or if the breaching party disputes the
allegation of breach, the determination of whether a breach occurred and whether
the breach was cured will be resolved by a single arbitrator in Los Angeles,
California, in accordance with the Expedited Procedures of the Commercial
Arbitration Rules of the American Arbitration Association (the "AAA") then in
force. Such arbitrator shall be an attorney with substantial experience
representing retail software companies. The arbitration shall be governed by the
United States Arbitration Act, and judgment upon the award rendered by the
arbitrator may be entered by any court having jurisdiction thereof.
Notwithstanding the Expedited Procedures of the Commercial Arbitration Rules of
the AAA, the parties agree that the AAA shall appoint the arbitrator without the
parties submitting lists of requested arbitrators. In addition, the arbitrator
shall be instructed to complete any hearings and render his or her award within
thirty (30) days after his or her appointment or as soon thereafter as is
reasonably possible consistent with providing each party a meaningful
opportunity to conduct such discovery as is reasonably necessary and otherwise
prepare and present its arguments. The arbitrator shall grant such orders and
impose such sanctions as are reasonably required to conform to the foregoing
schedule.
7. SOURCE CODE ESCROW. Upon the execution of this Agreement Symantec and
Quarterdeck shall enter into an agreement with an escrow in the form attached as
Exhibit D hereto pursuant to which such escrow agent shall hold a copy of the
Source Code Deliverables for the Quarterdeck Software. The escrow agreement
shall require the escrow agent to release such Source Code Deliverables to
Symantec upon commencement of the Quarterdeck Distribution License. Symantec
shall pay the fees of the escrow agent. Prior to the execution hereof,
Quarterdeck has delivered the Source Code Deliverables described on Exhibit B to
the escrow agent.
8. REPRESENTATIONS AND WARRANTIES; LIMITATIONS
8.1 REPRESENTATIONS AND WARRANTIES OF QUARTERDECK. Quarterdeck hereby
represents and warrants that:
(a) Quarterdeck has authorized the person who has signed this
Agreement for Quarterdeck to execute and deliver this Agreement to Symantec on
behalf of Quarterdeck, and Quarterdeck has the full power and authority to enter
into this Agreement and grant the rights and fulfill the obligations set forth
herein, provided that nothing in this Section 8.1(a) is intended or should be
construed to grant any representation or warranty regarding non-infringement of
any
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third party intellectual property right by the Quarterdeck Software or any use,
distribution or other exploitation thereof;
(b) Quarterdeck has not previously granted and will not grant any
rights in the Quarterdeck Software to any third party that conflict with the
rights granted to Symantec herein, provided that Symantec acknowledges that
Quarterdeck has granted to a third party certain exclusive right to distribute
Japanese language versions of the Quarterdeck Licensed Products in Japan and has
granted such other rights with respect to the Quarterdeck Software as are
disclosed in the Merger Agreement or the schedules, exhibits or other
attachments thereto; and
(c) Quarterdeck warrants that, the Quarterdeck Software does not
violate the, copyrights, trade secret rights, or other similar proprietary or
contractual rights of any third party, and Quarterdeck has not received any
claim to that effect. Symantec acknowledges and understands that Quarterdeck has
not performed any patent search or otherwise undertaken to determine whether the
Quarterdeck Software infringes any patent.
8.2 REPRESENTATIONS AND WARRANTIES OF SYMANTEC. Symantec hereby represents
and warrants that it has authorized the person who has signed this Agreement for
Symantec to execute and deliver this Agreement to Quarterdeck on behalf of
Symantec, and Symantec has the full power and authority to enter into this
Agreement and fulfill the obligations set forth herein.
8.3 GENERAL DISCLAIMER. EXCEPT AS SPECIFIED IN THIS AGREEMENT ALL EXPRESS
OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE
HEREBY DISCLAIMED.
9. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR
ARISING OUT OF THIS AGREEMENT (INCLUDING LOSS OF PROFITS, USE, DATA, OR OTHER
ECONOMIC ADVANTAGE), NO MATTER WHAT THEORY OF LIABILITY, EVEN IF THE REMEDIES
PROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE AND EVEN IF
EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES.
Nothing herein shall preclude a party from seeking equitable remedies in an
appropriate case. Except for the indemnity provisions of Section 10 and the
confidentiality provisions in Section 12(a), (i) the liability of Quarterdeck
under this Agreement shall be limited to the amounts paid to it by Symantec
hereunder during the one year period ending upon accrual of such liability, and
Symantec's liability shall be limited to the same amount, except that Symantec's
obligation to make the payments described in this Agreement shall be in addition
to such amount. FURTHER, THE EXCLUSIONS OF DAMAGES AND LIMITATIONS OF LIABILITY
STATED ABOVE SHALL REMAIN IN EFFECT, EVEN IF THE EXCLUSIVE REMEDIES PROVIDED FOR
IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. Nothing in this Section 9
shall in any way limit any right or remedy available to either party for any
infringement or misappropriation of such party's copyrights, patents,
trademarks, trade secrets, or other intellectual property rights.
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10. INDEMNIFICATION.
10.1 BY QUARTERDECK. Quarterdeck shall, at its expense and Symantec's
request, defend any claim brought against Symantec and Symantec's affiliates,
directors, officers, employees, agents and independent contractors, (a) that the
Quarterdeck Software infringes any United States copyrights or trade secrets; or
(b) which, if true, would constitute a breach of a warranty by Quarterdeck in
Section 8.1, and Quarterdeck will pay any damages awarded by a court of
competent jurisdiction in a final, unappealable judgment for such claim or any
amount owing in settlement of such claim, provided that Symantec tenders sole
control of the defense and settlement of such claim to Quarterdeck and
reasonably cooperates in the defense thereof.
10.2 BY SYMANTEC. Symantec shall, at its expense and Quarterdeck's request,
defend any claim brought against Quarterdeck and Quarterdeck's affiliates,
directors, officers, employees, agents and independent contractors, based on any
allegation that Symantec's business practices with respect to the Software are
unlawful or unethical, on allegations of Symantec's negligence, recklessness,
willful misconduct, on allegations by Marubeni Corporation that Symantec's
distribution of Japanese language versions of the Quarterdeck Products violated
Marubeni Corporation's rights under the agreement between Quarterdeck and
Marubeni dated September 29, 1997, or on allegations that, if true, would
constitute a breach of this Agreement, and Symantec will pay any damages awarded
by a court of competent jurisdiction in a final, unappealable judgment for such
claim or any amount owing in settlement of such claim, provided that Symantec
tenders sole control of the defense and settlement of such claim to Quarterdeck
and reasonably cooperates in the defense thereof.
11. PROTECTION OF RIGHTS. As an express condition of this Agreement, each party
will apply to any works created, copied or distributed under the Licenses
applicable copyright and other proprietary rights notices sufficient to protect
each party's rights in such works. Each party will retain the ownership to its
trademarks and tradenames and, except as expressly provided in this Agreement,
neither party will have any right to use the trademarks or tradenames of the
other party.
12. GENERAL.
(a) CONFIDENTIALITY. Each party acknowledges that in the course of the
relationship contemplated by this Agreement it will receive information which is
confidential and proprietary to the other. Each party agrees not to use such
information except in performance of this Agreement and not to disclose such
information to third parties. Such confidential and proprietary information
includes, without limitation, the parties' current and future business plans,
and other information which is stamped or marked as confidential by such party
and any other information disclosed by such party if, within 30 days of
disclosure, whether orally or by way of written documents, such party identifies
by written notice to the other the confidential nature of such information.
Without limiting the foregoing, any Source Code shall be deemed confidential
information regardless of whether so marked or identified. The foregoing
restrictions will not apply to information that (a) has been independently
developed other than pursuant to this Agreement and without reference to the
disclosing party's information, (b) has
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become publicly known through no wrongful act of the party wishing to make use
of such information, (c) has been rightfully received from a third party
authorized to make such disclosure without restriction, (d) has been approved
for release in writing, or (e) is required to be disclosed by law, provided that
the party required to make such disclosure shall be required to make reasonable
efforts, consistent with applicable law, to limit the scope and nature of such
required disclosure.
(b) EQUITABLE RELIEF. Each party acknowledges that any breach of its
obligations under this Agreement with respect to the proprietary rights or
confidential information of the other will cause the other irreparable injury
for which there are inadequate remedies at law, and that the injured party will
be entitled to equitable relief with respect to any such breach in addition to
all other remedies provided by this Agreement or available at law.
(c) GOVERNING LAW. This Agreement will be governed and interpreted in
accordance with the laws of the State of California, except for that body of law
pertaining to conflicts of law. Venue for any legal action shall be proper in
the state and federal courts of California, and Symantec and Quarterdeck each
expressly consent to venue and jurisdiction therein.
(d) RELATIONSHIP OF PARTIES. Quarterdeck's relationship with Symantec
during the term of this Agreement will be that of an independent contractor.
Neither party will have, and neither party will represent that it has, any
power, right or authority to bind the other party, or to assume or create any
obligation or responsibility, express or implied, on behalf of the other party
or in the other party's name, except as herein expressly provided. Nothing
stated in this Agreement shall be construed as constituting Quarterdeck and
Symantec as partners or as creating the relationships of employer/employee,
franchiser/franchisee, or principal/agent between the parties; provided that
nothing herein shall limit the parties respective rights and obligations under
the Merger Agreement.
(e) ATTORNEYS' FEES. In the event that any legal action is required
in order to enforce or interpret any of the provisions of this Agreement, the
prevailing party in such action shall recover all reasonable costs and expenses,
including attorney's fees, incurred in connection therewith.
(f) WAIVER. The failure of either party to enforce any provision of
this Agreement shall not be deemed a waiver of that or any other provision of
this Agreement.
(g) HEADINGS; INTERPRETATION. The headings of the Sections of this
Agreement are for convenience only and will not be of any effect in construing
the meanings of the Sections. Because both parties have participated in the
drafting of this Agreement, there shall be no presumption that the terms of the
Agreement should be interpreted against the drafting party.
(h) SEVERABILITY. If any of the provisions of this Agreement are
found or deemed by a court of competent jurisdiction to be invalid or
unenforceable, they shall be severable from the remainder of the Agreement and
shall not cause the invalidity or unenforceability of the Agreement.
11
12
(i) NOTICES. Notices to either party shall be in writing and shall be
deemed delivered when served in person or three Business Days after being
deposited in the United States mail, first-class certified mail, postage
prepaid, return receipt requested, or one Business Day after being dispatched by
a nationally recognized one-day express courier service addressed as follows:
if to Symantec, to Symantec Corporation
00000 Xxxxx Xxx.
Xxxxxxxxx, XX 00000
Attention: General Counsel
if to Quarterdeck, to
Quarterdeck Corporation
00000 Xxxxxxxx Xxx
Xxxxxx xxx Xxx, XX 00000
Attention: Chief Executive Officer with a copy to Quarterdeck's General Counsel
at the same address and to Quarterdeck's outside counsel:
Xxxxxxxx and Associates
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
(j) ENTIRE AGREEMENT. This Agreement (and, to the extent referenced
herein, the Merger Agreement) constitutes the entire agreement between the
parties pertaining to the subject matter hereof, and supersedes in their
entirety any and all written or oral agreements previously existing between the
parties with respect to such subject matter (provided that this Agreement shall
not supercede the Merger Agreement or any agreement ancillary or entered into
pursuant thereto). Any modifications of this Agreement must be in writing and
signed by duly authorized officers of each party hereto.
(k) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which when so executed shall be deemed an original, and
all of which together shall constitute one and the same instrument.
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13
(l) This Agreement shall be binding upon and inure to the benefit of
each of the parties hereto and, except as otherwise provided herein, their
respective legal successors and permitted assigns, provided however that neither
party shall assign, voluntarily or involuntarily or by operation of law, or
otherwise, any part of this Agreement unless in connection with such party's
assignment to an entity which it then controls, is under the control of, or is
under common control with or in connection with a transfer of substantially all
assets of such party, or with the prior written consent of the other party.
Notwithstanding the foregoing, Quarterdeck may assign this Agreement, including
without limitation all of Quarterdeck's rights, remedies, obligations and duties
of performance, in connection with a sale or assignment of the Intellectual
Property Rights in the Quarterdeck Licensed Products.
The parties have executed this Agreement on the Effective Date.
SYMANTEC CORPORATION QUARTERDECK CORPORATION
By: By:
------------------------------ ------------------------------
Printed Name: Printed Name:
-------------------- -------------------
Title: Title:
-------------------------- --------------------------
SYMANTEC LIMITED
By:
------------------------------
Printed Name:
-------------------
Title:
--------------------------
14
EXHIBIT A
QUARTERDECK SOFTWARE
Quarterdeck Software means (a) the product distributed by Quarterdeck under the
name "CleanSweep," and (b) any updates, upgrades or other revisions to
CleanSweep.
15
EXHIBIT B
DELIVERABLES
The Source Code Deliverables with respect to Quarterdeck Software shall include
the following:
Copies of machine-readable Source Code for the then current versions of the
Quarterdeck Software.
Copies of system build instructions such that Symantec can rebuild the
Quarterdeck Software from the Source Code provided.
Copies of existing Quarterdeck technical documentation for those
maintaining and supporting the Quarterdeck Software.
Copies of any tools written by Quarterdeck for the development of the
Quarterdeck Software and the instructions for their operation.
Copies of existing testing materials developed by Quarterdeck for the
Quarterdeck Software.
User manual source files
Any technical specs, design docs, etc. that exist for the code
Test cases, tools and plans, including DBCS and Hi-ASCII cases/plans -any
in-house localization tools written for the product
Bug database and top known issues (i.e, were they planning any inlines to
fix bugs causing major support issues?)
Any techsupport documents or databases
List of scripts and script-creation documentation
The Object Code Deliverables for the Quarterdeck Software shall include the
following:
Electronic masters for all associated end-user documentation for the
Software.
Golden master disks of the binary executable form of the then current
version of the Quarterdeck Software, electronic masters for all associated
end-user documentation for the Quarterdeck Software, and copies of all
available technical support and customer support materials, provided that
Quarterdeck shall have no obligation to identify or disclose any
information regarding its customers.
16
EXHIBIT C
END USER LICENSE
SYMANTEC END-USER LICENSE
NOTICE: SYMANTEC LICENSES THE ENCLOSED SOFTWARE TO YOU ONLY UPON THE CONDITION
THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT. PLEASE
READ THE TERMS CAREFULLY BEFORE OPENING THIS PACKAGE, AS OPENING THE PACKAGE
WILL INDICATE YOUR ASSENT TO THEM. IF YOU DO NOT AGREE TO THESE TERMS, THEN
SYMANTEC IS UNWILLING TO LICENSE THE SOFTWARE TO YOU, IN WHICH EVENT YOU SHOULD
RETURN THE FULL PRODUCT WITH PROOF OF PURCHASE TO THE DEALER FROM WHOM IT WAS
ACQUIRED WITHIN SIXTY DAYS OF PURCHASE, AND YOUR MONEY WILL BE REFUNDED.
LICENSE AND WARRANTY:
The software which accompanies this license (the "Software") is the property of
Symantec or its licensors and is protected by copyright law. While Symantec
continues to own the Software, you will have certain rights to use the Software
after your acceptance of this license. Except as may be modified by a license
addendum which accompanies this license, your rights and obligations with
respect to the use of this Software are as follows:
o You may:
(i) use one copy of the Software on a single computer;
(ii) make one copy of the Software for archival purposes, or copy the software
onto the hard disk of your computer and retain the original for archival
purposes;
(iii) use the Software on a network, provided that you have a licensed copy of
the Software for each computer that can access the Software over that network;
(iv) after written notice to Symantec, transfer the Software on a permanent
basis to another person or entity, provided that you retain no copies of the
Software and the transferee agrees to the terms of this agreement; and
(v) if a single person uses the computer on which the Software is installed at
least 80% of the time, then after returning the completed product registration
card which accompanies the Software, that person may also use the Software on a
single home computer.
o You may not:
17
(i) copy the documentation which accompanies the Software;
(ii) sublicense, rent or lease any portion of the Software;
(iii) reverse engineer, decompile, disassemble, modify, translate, make any
attempt to discover the source code of the Software, or create derivative works
from the Software; or
(iv) use a previous version of the Software after you have received an upgraded
version as a replacement of the prior version. Upon upgrading the Software, all
copies of the prior version must be destroyed.
o Sixty Day Customer Satisfaction Guarantee:
If you are the original licensee of this copy of the Software and are
dissatisfied with it for any reason, you may return the complete product,
together with your receipt, to Symantec or an authorized dealer, postage
prepaid, for a full refund at any time during the sixty day period following the
delivery to you of the Software.
o Limited Warranty:
Symantec warrants that the media on which the Software is distributed will be
free from defects for a period of sixty (60) days from the date of delivery of
the Software to you. Your sole remedy in the event of a breach of this warranty
will be that Symantec will, at its option, replace any defective media returned
to Symantec within the warranty period or refund the money you paid for the
Software. Symantec does not warrant that the Software will meet your
requirements or that operation of the Software will be uninterrupted or that the
Software will be error-free.
THE ABOVE WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES,
WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. THIS WARRANTY GIVES YOU
SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO
STATE.
o Disclaimer of Damages:
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL
PURPOSE, IN NO EVENT WILL SYMANTEC OR ITS LICENSORS BE LIABLE TO YOU FOR ANY
SPECIAL, CONSEQUENTIAL, INDIRECT OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS
OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE EVEN IF
SYMANTEC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY
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18
FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY
NOT APPLY TO YOU.
IN NO CASE SHALL THE LIABILITY OF SYMANTEC OR ITS LICENSORS EXCEED THE
PURCHASE PRICE FOR THE SOFTWARE. The disclaimers and limitations set forth above
will apply regardless of whether you accept the Software.
o U.S. Government Restricted Rights:
RESTRICTED RIGHTS LEGEND. Use, duplication, or disclosure by the Government is
subject to restrictions as set forth in subparagraph (c) (1) (ii) of the Rights
in Technical Data and Computer Software clause at DFARS 252.227-7013 or
subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted
Rights clause at 48 CFR 52.227-19, as applicable, Symantec Corporation,
[Address].
o General:
This Agreement will be governed by the laws of the State of California. This
Agreement may only be modified by a license addendum which accompanies this
license or by a written document which has been signed by both you and Symantec.
Should you have any questions concerning this Agreement, or if you desire to
contact Symantec for any reason, please write: Symantec Customer Sales and
Service, [address.]
3
19
EXHIBIT D
FORM OF SOURCE CODE ESCROW AGREEMENT
ESCROW AGREEMENT
Account Number:
This Escrow Agreement (this "Agreement") is effective October 15, 1998 (the
"Effective Date") by and among Data Securities International, Inc., a Delaware
corporation with offices at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000 ("Escrow Agent"), Quarterdeck Corporation, a Delaware
corporation with principal offices at 00000 Xxxxxxxx Xxx, Xxxxxx xxx Xxx,
Xxxxxxxxxx 00000 ("Quarterdeck") and Symantec Corporation, a Delaware
corporation with principal offices at 00000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx
00000 ("Symantec").
Recitals
This Agreement is entered into in furtherance of the provisions and
objectives of that certain Agreement and Plan of Merger (the "Merger Agreement")
among Quarterdeck, Symantec, and XxXxxxx Acquisition Corporation, dated October
15, 1998 , and a License Agreement (the "License Agreement") between Symantec
and Quarterdeck. The License Agreement provides that under certain conditions
Symantec shall have the right to receive a license to the Quarterdeck Software,
as defined in Exhibit A, and that Quarterdeck shall place in escrow the
Deliverables identified in Exhibit B.
Agreement
For valuable consideration, the parties agree as follows:
1. Deposit. Quarterdeck has heretofore deposited with Escrow Agent the
Source Code Deliverables (as defined in the License Agreement) (the "Deposit").
Symantec has verified that the initial Deposit includes the appropriate
Deliverables. If there are changes to the Quarterdeck Software that are released
to the public, Quarterdeck shall keep the Deposit current by adding or
substituting materials within two business days after such changes are released
to the public. Upon any such additional or replacement Deposit, Escrow Agent
will, if requested by Symantec, build the binary version of the Quarterdeck
Software from the materials included in the Deposit and deliver the resulting
executable program to Symantec. Symantec may then verify that the Deposit is
complete by comparing the executable program delivered by the Escrow Agent to
the then current
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20
version of the Quarterdeck Software.
2. Retention of Replaced Deposit. Escrow Agent will retain any replaced
Deposit (including any replacement of a portion of the Deposit) unless Escrow
Agent has been instructed by Symantec within 10 business days of notice from
Escrow Agent to destroy it. Retention of the replaced Deposit may result in an
additional fee, as specified in Escrow Agent's fee schedule, to be paid by
Symantec.
3. Verification and Delivery of Deposit to Escrow Agent. Risk of loss or
damage during shipment of the Deposit or any replacement Deposit to Quarterdeck
or Escrow Agent shall rest with Quarterdeck. Accordingly, Escrow Agent shall
follow any instructions provided by Quarterdeck regarding transport or shipment
of the Deposit. The Deposit shall be packaged for storage as reasonably
determined by Escrow Agent and accompanied by a cover sheet identifying the
contents as indicated in Exhibit A. Escrow Agent shall give written notice to
Symantec of any replacement Deposit or other addition or substitution of
materials in the Deposit within three business days after such replacement
Deposit.
4. Obligations of Escrow Agent. Escrow Agent shall safekeep the Deposit
in a security vault and exercise the same high standard of care to protect the
Deposit which Escrow Agent would use to protect items of this nature which
Escrow Agent might own, but in no event less than that standard of care
customary in the industry.
5. Term of Agreement. This Agreement shall have an initial term of six
months, renewable upon receipt by Escrow Agent of the specified renewal fee. If
Escrow Agent does not receive the renewal fee by the expiration date, Escrow
Agent shall give notice to Symantec. If the fee is not received from Symantec
within thirty days of such notice, this Agreement shall expire. Upon expiration
of this Agreement, Escrow Agent will return the Deposit to Quarterdeck. All
obligations of Escrow Agent under this Agreement shall terminate thereafter,
except for those obligations set forth in Section 9 below. In no event shall
this Agreement be renewed after expiration or termination of the Merger
Agreement or the License Agreement.
6. Delivery of Deposit to Symantec. If Symantec notifies Escrow Agent of
the occurrence of a release condition as defined in Exhibit C, Escrow Agent
shall immediately notify Quarterdeck in writing and provide Quarterdeck with a
copy of the notice from Symantec. Quarterdeck shall have ten business days from
the date of receipt of such written notice from Escrow Agent to notify Escrow
Agent, with a copy to Symantec, that the release condition has not occurred.
Failing such timely notice from Quarterdeck, Escrow Agent shall release the
Deposit to Symantec. Upon release of the deposit, Symantec shall have the
license to use the Deposit as set forth in the License Agreement (the
"Development License"). However, if Escrow Agent receives timely notice from
Quarterdeck, Escrow Agent shall not release the Deposit but shall instead notify
the parties that there is a dispute, and subject to Section 5, Escrow Agent will
continue to hold the Deposit until such dispute is resolved.
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21
Symantec shall in no event use the Deposit except to the extent
permitted under the Development License. Further, Symantec shall not disclose
the Deposit or any part thereof to any person or entity, except that, after
rightful receipt of the Deposit hereunder, Symantec may disclose the Deposit to
its employees who require access to the Deposit to allow Symantec to exercise
its rights under the Development License, provided that such employees have
first agreed in writing to refrain from disclosing the Deposit except as
permitted under this Agreement. Symantec shall protect the Deposit using the
same standard of care it uses to protect its own most valuable source code, but
in no event less care than is prudent and customary under the circumstances.
Symantec's obligations under this paragraph shall survive any termination or
expiration of this Agreement.
7. Dispute Resolution Process. Escrow Agent shall first notify
Quarterdeck and Symantec in writing of contrary instructions from Symantec and
Quarterdeck for release of the Deposit (the "Dispute Notice"). Within five
business days after the Dispute Notice is sent by Escrow Agent, Symantec and
Quarterdeck shall each appoint a referee, and the referees so appointed shall
jointly appoint a third referee (the "Neutral Referee"). Quarterdeck and
Symantec shall each notify the other parties of its referee's identity within
such five-day period.
Within ten business days after the Dispute Notice, Symantec and
Quarterdeck shall use their respective best efforts to cause the referees to
meet at a mutually acceptable location and to hear testimony and other evidence
that Quarterdeck and Symantec may wish to present with respect to the dispute.
The meetings shall proceed with all referees present, and shall be conducted
from 9:30 a.m. to 5:00 p.m. on no more than three consecutive business days .
Symantec shall present up to one day of evidence followed by up to one day of
presentation from Quarterdeck, followed by a final day reserved for rebuttal by
each party, concluding with Quarterdeck's rebuttal. Quarterdeck, Symantec and
Escrow Agent agree that the evidence presented at the hearings which is
designated as confidential shall not be disclosed to other third parties except
as required by law. Within two business days after the close of the
presentations, the referees shall resolve the dispute by majority vote. Any
refusal to vote by one of the referees appointed by a party shall be deemed an
abstention by that referee. If the there is no majority vote and the Neutral
Referee refuses to vote, then the referees appointed by the parties shall
appoint a replacement Neutral Referee as soon as possible, and the process
described in this paragraph shall be repeated.
This dispute resolution process shall be the exclusive means for
resolving disputes to which it applies, and the decision of the referees shall
be final, conclusive and enforceable by a court of competent jurisdiction. All
costs of the referees shall be borne by the unsuccessful party.
8. Joint Instructions. Symantec and Quarterdeck may, by joint written
instruction to Escrow Agent, authorize the delivery of the Deposit to the party
named in the instruction; provided that Escrow Agent shall not comply with any
such instructions unless it notifies
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22
Quarterdeck of such instructions and Escrow Agent's intention to release the
Deposit to Symantec and Quarterdeck confirms such instructions in writing.
Escrow Agent shall in any event wait not less than five business days after
sending such notice before releasing the Deposit, even if it earlier receives
such confirmation.
9. Use and Nondisclosure. Except as provided in this Agreement, Escrow
Agent shall not copy, disclose or make any use whatsoever of the Deposit. Escrow
Agent shall not disclose or make use of any confidential information provided to
Escrow Agent by Quarterdeck in connection with this Agreement without the prior
written consent of Quarterdeck. Escrow Agent shall not disclose or make use of
any confidential information provided to Escrow Agent by Symantec in connection
with this Agreement without the prior written consent of Symantec. These
obligations shall continue indefinitely notwithstanding termination of this
Agreement.
10. Records and Audit Rights. Escrow Agent shall keep complete written
records of the activities undertaken and materials prepared pursuant to this
Agreement. Upon reasonable notice to Escrow Agent during the term of this
Agreement, each of Quarterdeck and Symantec shall be entitled at reasonable
times during normal business hours at Escrow Agent's facilities to inspect the
records of Escrow Agent with respect to this Agreement.
11. Designated Representative. Quarterdeck, Symantec and Escrow Agent
shall each designate an authorized individual to receive notices and otherwise
act on behalf of each such party in connection with this Agreement. Failing
designation, notices shall be sent to the signatories to this Agreement.
12. Notices. All notices in connection with this Agreement shall be in
writing given to the parties at their respective addresses shown above (or such
other address as may be designated by a party in writing to the other parties)
by being personally delivered, sent by overnight, pre-paid air freight, or sent
by registered or certified mail, return receipt requested, and shall be
effective upon receipt if personally delivered, upon two business days after
deposit if sent by air freight, or upon five business days after deposit if sent
with the U.S. Postal Service.
13. Fees. All fees shall be due in full within thirty (30) days of the
date of Escrow Agent's invoice. Symantec shall pay the fees due. Fees shall be
those specified in Escrow Agent's schedule of fees in effect for the term of
this Agreement plus applicable taxes. Escrow Agent shall notify Symantec at
least ninety days prior to expiration of the term (or any renewal term) of this
Agreement of any scheduled increase of the fees payable for succeeding renewal
terms.
14. Authenticity. Subject to Section 8, Escrow Agent may act in reliance
upon any instruction, instrument or signature believed to be genuine and may
assume that it has been duly authorized.
15. Indemnification. Escrow Agent shall be responsible to perform its
7
23
obligations under this Agreement and to act in a reasonable and prudent manner
with regard to this escrow arrangement. Provided Escrow Agent has acted in the
manner stated in the preceding sentence, Symantec and Quarterdeck each agree to
indemnify, defend and hold harmless Escrow Agent from any and all claims,
actions, damages, arbitration fees and expenses, costs, attorney's fees and
other liabilities incurred by Escrow Agent relating in any way to this escrow
arrangement.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
17. Complete Agreement. This Agreement, including the Exhibits,
constitutes the entire agreement between the parties concerning the subject
matter and shall supersede all previous communications, representations,
understandings, and agreements, either oral or written, between the parties.
Without limiting the generality of the foregoing sentence, this Agreement shall
specifically supplant and replace the Interim Escrow Agreement among the parties
dated as of October 13, 1998 (the "Interim Agreement"). The parties acknowledge
and agree that the Interim Agreement shall terminate as of the date hereof, and
that the deposit under the Interim Agreement shall hereafter be governed by this
Agreement.
18. Severability. If any provision of this Agreement is held by any court
to be invalid or unenforceable, then that provision will be severed from this
Agreement and the remaining provisions shall continue in force.
19. Exhibits. The following Exhibit is made a part of this Agreement by
this reference:
Exhibit A: Quarterdeck Software
Exhibit B: Deliverables
Exhibit C: Release Conditions
QUARTERDECK CORPORATION SYMANTEC CORPORATION
---------------------------- ----------------------------
By: By:
Its: Its:
8
24
DATA SECURITIES INTERNATIONAL, INC.
----------------------------
By:
Its:
9
25
EXHIBIT A
QUARTERDECK SOFTWARE
Quarterdeck Software means (a) the product distributed by Quarterdeck under the
name "CleanSweep," and (b) any updates or upgrades to CleanSweep.
26
EXHIBIT B
DELIVERABLES
The Deliverables with respect to Quarterdeck Software shall include the
following:
Copies of machine-readable Source Code for the then current versions of the
Quarterdeck Software.
Copies of system build instructions such that Symantec can rebuild the
Quarterdeck Software from the Source Code provided.
Copies of existing Quarterdeck technical documentation for those
maintaining and supporting the Quarterdeck Software.
Copies of any tools written by Quarterdeck for the development of the
Quarterdeck Software and the instructions for their operation.
Copies of existing testing materials developed by Quarterdeck for the
Quarterdeck Software.
Electronic masters for all associated end-user documentation for the
Software.
Any technical specs, design docs, etc. that exist for the code
Test cases, tools and plans, including DBCS and Hi-ASCII cases/plans -any
in-house localization tools written for the product
Bug database and top known issues (i.e, were they planning any inlines to
fix bugs causing major support issues?)
Any techsupport documents or databases
List of scripts and script-creation documentation
BINARY EXECUTABLES
Golden master disks of the binary executable form of the then current
version of the Quarterdeck Software, electronic masters for all associated
end-user documentation for the Quarterdeck Software, and copies of all
available technical support and customer support materials.
27
EXHIBIT C
RELEASE CONDITIONS
Any of the following shall be deemed to be a Release Condition:
1) Consummation (as that term is defined in the License Agreement) in
accordance with the terms of the License Agreement.
2) The occurrence of an event giving rise to an obligation on the part of
Quarterdeck to pay a Company Fee (as that term is defined in the Merger
Agreement) in accordance with the terms of the Merger Agreement
