Exhibit 10.13
MASTER COURSE DEVELOPMENT AGREEMENT
between
CALIBER LEARNING NETWORK, INC.
and
THE TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA
acting through
THE ARESTY INSTITUTE OF EXECUTIVE EDUCATION AT THE XXXXXXX SCHOOL
Dated as of: March 26, 1998
THIS MASTER COURSE DEVELOPMENT AGREEMENT (this "Agreement") is dated as of the
26th day of March, 1998 (the "Effective Date") and is by and between CALIBER
LEARNING NETWORK, INC., a Maryland corporation ("Caliber"), with its principal
place of business at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, and THE
TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA acting through THE ARESTY INSTITUTE
OF EXECUTIVE EDUCATION AT THE XXXXXXX SCHOOL, a Pennsylvania nonprofit
corporation (collectively referred to as "Wharton"), with its principal place of
business at 000 Xxxxx 00/xx/ Xxxxxx, Xxxxxxxxxxxx, XX 00000-0000.
RECITALS
1. The University of Pennsylvania, including The Xxxxxxx School, is a tax
exempt entity formed for educational purposes.
2. Currently, Wharton is engaged primarily in face to face, classroom education
of undergraduate, graduate and executive education students on Xxxxxxx'x campus.
3. Wharton desires to expand its educational offerings to students who may not
have access to Xxxxxxx'x campus through, among other things, distance learning
programs.
4. Caliber is in the process of establishing a nationwide network of facilities
and a distance learning infrastructure that enable it to provide educational,
training and other distance learning services (the "Caliber Learning Network").
5. Wharton has developed and will continue to develop educational courses in
business administration and related topics that it wishes to offer to an
increased number of student participants at various geographical locations.
-1-
6. Wharton desires to develop content and to teach courses in accordance with
Xxxxxxx'x business education purposes through a distance learning program, which
Caliber can deliver through its distance learning infrastructure.
7. Assuming the success of the initial course offerings, Wharton and Caliber
anticipate Wharton creating additional course offerings from time to time to
fulfill Xxxxxxx'x academic objectives.
TERMS AND CONDITIONS
In consideration of the mutual covenants and conditions set forth in
this Agreement and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound,
Caliber and Wharton agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1. Defined Terms. As used in this Agreement, the
-----------------------------
following terms shall have the following meanings:
"Caliber" is defined in the Preamble.
"Caliber Learning Network" is defined in Recital 1.
"Caliber Marks" is defined in Section 10.2.
"Caliber Site" is defined in Section 2.5.
"Confidential Information" means the oral or written proprietary or
confidential information of a party that is, in the case of written information,
clearly marked as "Confidential" and, in the case of oral information, confirmed
in writing to be confidential within ten (10) days after its initial disclosure
to the other party. Examples of Confidential Information include, but are not
limited to, the identity or personal information of Participants or active
prospects, strategic plans and materials, marketing strategies, business data,
financial information, studies of the effectiveness of distance learning
systems, and software. Confidential Information does not include:
(a) information that is known to the recipient or independently
developed by the recipient prior to the time of disclosure in each case, to the
extent evidenced by
-2-
written records promptly disclosed to the disclosing party upon receipt of the
Confidential Information;
(b) information disclosed to the recipient by a third party that has a
right to make such disclosure;
(c) information that becomes patented, published or otherwise part of
the public domain as a result of acts by the disclosing party or a third person
obtaining such information as a matter of right; or
(d) information that is required to be disclosed by order of United
States governmental authority or a court of competent jurisdiction; provided
that the recipient notifies the disclosing party so that the disclosing party
may seek to obtain confidential treatment of such information by the agency or
court.
"Course" means any course offering described in one of the
sequentially numbered Exhibit A's to this Agreement.
---------
"Course Content" means any and all lectures, texts and any other
tangible expressions of the intellectual content of a Course.
"Course Schedule" is defined in Section 2.6.
"Derivative Work" means any adaptation or formatting by Caliber and/or
Wharton of the Course Content for delivery through the Caliber Learning Network,
including but not limited to video tape presentations or versions, CD-ROM
versions, Internet courseware or versions, Power PointO or similar
presentations, and any other derivative works of the Course Content.
"Effective Date" is defined in the Preamble.
"EOM" means the title of the initial series of Courses called
"Essentials of Management" or such other title selected by Wharton and approved
by Caliber.
"Essentials of Management Series" means the initial EOM series of
Courses developed by Wharton for delivery through the Caliber Learning Network
pursuant to this Agreement.
"Participant(s)" means student attendee(s) of a Session.
"Revenues" is defined in Section 9.1.
-3-
"Rights" means all intellectual property or other proprietary rights,
including, without limitation, copyrights, trade secrets, patents and
trademarks.
"Session" means any single broadcast or event (1-3 hours in length)
within a Course that is developed, offered and delivered by Wharton and Caliber
to Participants through the Caliber Learning Network under this Agreement.
"Session Delivery" means the delivery of a Session by Caliber to
Participants under this Agreement.
"Session Delivery Fee" is defined in Section 9.2.
"Taped Session" is a videotaped copy of the broadcast of a Session.
"Trigger Event" means any of the following:
(a) if a party: becomes insolvent, bankrupt or generally fails to pay
its debts as such debts become due; is adjudicated insolvent or bankrupt; admits
in writing its inability to pay its debts; suffers a custodian, receiver or
trustee for it or substantially all of its property to be appointed and, if
appointed without its consent, not be discharged within thirty (30) days; makes
an assignment for the benefit for its creditors; or suffers proceedings under
any law related to bankruptcy, insolvency, liquidation or the reorganization,
readjustment or release of debtors to be instituted against it and, if contested
by it, not dismissed or stayed within ten (10) days;
(b) if proceedings under any law related to bankruptcy, insolvency,
liquidation, or the reorganization, readjustment or release of debtors are
instituted or commenced by a party;
(c) if any order for relief is entered relating to any of the
proceedings described in paragraphs (a) or (b) above;
(d) if a party shall call a meeting of its creditors with a view to
arranging a composition or adjustment of its debts; or
(e) if a party shall by any act or failure to act indicate its consent
to, approval of or acquiescence in any of the proceedings described in
paragraphs (a), (b), (c) or (d) above.
"Wharton" is defined in the Preamble.
"Wharton Marks" is defined in Section 10.1.
-4-
ARTICLE 2
DEVELOPMENT OF COURSES
Section 2.1. Personnel. Upon execution of this Agreement, Wharton
-------------------------
and Caliber each shall identify a sufficient number of qualified persons from
their respective organizations who will be responsible for the design,
development, marketing, coordination and implementation of the Courses
consistent with the parties respective obligations under this Agreement.
Section 2.2. Development. In order to ensure that each Course
---------------------------
meets Xxxxxxx'x educational objectives, Wharton will have sole responsibility
for developing the Course Content, selecting and training instructors,
developing related text materials to be incorporated into the Course Content and
developing any related computer content or software to be incorporated into the
Course Content.
Section 2.3. Releases. Wharton will be responsible for obtaining
------------------------
copyright and publicity consents with respect to the professors, guest
lecturers, students and authors of any third party sources contributing to the
Course Content or appearing on a Taped Session.
Section 2.4. The Initial Courses. Wharton shall develop initially
-----------------------------------
two (2) Courses that will be suitable for delivery through the Caliber Learning
Network after the formatting and adaptation contemplated by Section 3, all as
further described in Exhibit A-1 and Exhibit A-2 attached hereto and shall offer
----------- -----------
such Courses through the Caliber Learning Network in the Fall of 1998 and the
Winter and Spring of 1999 in accordance with the Course Schedule.
Section 2.5. Additional Courses. The parties may agree from time
----------------------------------
to time to offer additional Courses subject to the following procedure: (a) the
parties shall complete an Additional Course Form, substantially in the form of
Exhibit B, which will become a new sequentially numbered Exhibit A to this
--------- ---------
Agreement; (b) the parties shall execute a new Exhibit Index indicating that
such Additional Course Form has been incorporated into this Agreement; and (c)
the parties shall attach such Additional Course Form and Exhibit Index to this
Agreement. Each Exhibit A will set forth the parties' preliminary understanding
----------
concerning the specific parameters of the Course, including all of the
following: the frequency, dates and times at which such Course will be offered;
the target total enrollment for the Course; the Caliber Learning Centers that
will offer the Course (each a "Caliber Site"); the minimum and maximum class
size at each room at a Caliber Site; the registration fee for the Course; the
method of registration and enrollment; the target market for the Course; and
financial projections. Each Exhibit A may be amended from time to time in a
---------
writing executed by both parties.
-5-
Section 2.6. Course Schedule. The parties have developed and will
-------------------------------
continue to refine the initial schedule of Courses (the "Course Schedule"),
which shows: the number and timing of the Courses to be developed and
subsequent Courses that the parties anticipate may be developed; and the number
and timing of the repetitions of each Course. The Course Schedule is attached
hereto as Exhibit C. The Course Schedule may be amended from time to time upon
---------
the agreement of the parties in writing.
ARTICLE 3
FORMATTING AND DELIVERY OF COURSES
Section 3.1. Format. Caliber, in consultation with Wharton, shall
----------------------
be responsible for formatting and adapting the Course Content developed by
Wharton in order for the Course Content to be delivered over the Caliber
Learning Network. Wharton shall cooperate with Caliber and provide such
reasonable assistance as Caliber may require for this purpose. Caliber shall
not format or adapt the Course Content in any way that compromises the
educational value of and academic standards associated with the Course Content.
Caliber will produce at its expense video roll-ins and films to supplement the
Course Content as requested by Wharton from time to time; provided that the
parties both agree in advance on the nature, scope and budget for each such
project; and provided further that Wharton retains control over the content of
each such project.
Section 3.2. Session Delivery. Caliber shall deliver each Session
--------------------------------
at the Caliber Sites set forth on the relevant Exhibit A. Caliber shall ensure
---------
that the Caliber Sites are clean, secure and appropriately equipped for delivery
of the Sessions and present a reasonable learning environment. For example,
each Participant at each Caliber Site shall have individual access at their
desktop to a personal computer that is networked to all of the Participants and
the faculty. In connection with the delivery of each Session, Caliber shall:
3.2.1 provide the software and computer programs, including, without
limitation, Caliber's proprietary class interaction support software, necessary
to deliver the Session;
3.2.2 provide the hardware components necessary to deliver the
Session and create a two-way audio and video environment, including, without
limitation, a satellite dish and integrated receiver decoder to receive the
video and audio signals at each Caliber Site, and workstations, cameras, video
monitors and related components necessary to return audio and video signals from
each Caliber Site;
3.2.3 provide maintenance and related support services necessary to
maintain the software and computer programs and the hardware components required
for delivery of the Session;
-6-
3.2.4 provide a studio facility and trained staff for initiation of
the broadcast reasonably accessible to Wharton;
3.2.5 provide any training reasonably necessary for Xxxxxxx'x faculty
to utilize effectively the Caliber Learning Network;
3.2.6 have at least one (1) qualified Caliber employee during each
Session available at each Caliber Site participating in the Session to: monitor
attendance (including ensuring that only registered Participants attend a
Session), Participant behavior and performance of technical equipment,
including hardware and software; oversee delivery of the Session; distribute and
collect Participant surveys, as needed; and provide non-academic assistance to
Participants; and
3.2.7 create and maintain in reasonable working order so that it is
responsive to the educational needs of the Courses a password-protected website
or intranet dedicated to the Essentials of Management Series to facilitate
organization of the Courses, distribution of Course materials, and interaction
between and among the Participants and the faculty for the Sessions.
Section 3.3. Quality of Session Delivery. All aspects of the
-------------------------------------------
Session Delivery will be of high quality and will at all times meet or exceed
the standards for two-way audio and video Session delivery in the video-
conferencing industry. In this regard, Caliber represents, warrants and
covenants that the interactive elements of the Session Delivery, including any
software, Internet communication, video and audio transmission, will provide for
substantially simultaneous interaction and that the video and audio transmission
quality will be excellent and any technical problems will be promptly resolved.
Furthermore, during the term of this Agreement, the parties may develop
additional metrics by which to measure the quality of the Session Delivery.
Section 3.4. Taped Session Make-Ups by Participants.
------------------------------------------------------
Notwithstanding Section 8.1, Caliber shall have available at each Caliber Site
copies of the Taped Sessions for each Course. Caliber shall provide on a short
term basis Taped Sessions to any Participants who may have missed the scheduled
broadcast of such Session under such terms as the parties may agree.
Section 3.5. Studio Facility. In preparation for the broadcast of
-------------------------------
the first Session of the initial Course, the parties will cooperate to locate a
studio facility for the initiation of Session broadcasts reasonably accessible
to the campus of The University of Pennsylvania.
-7-
Section 3.6. Observation Rights. Caliber may permit any
----------------------------------
prospective Participants or their employers to observe at a Caliber Site a
broadcast of a Session; provided that Caliber obtains Xxxxxxx'x prior written
approval of such prospect, which approval will not be unreasonably withheld; and
provided further that Caliber shall take reasonable steps to avoid any
disruption of the Session.
ARTICLE 4
MARKETING
Section 4.1. Sales Force. Because broad dessemination of
---------------------------
information regarding the Essentials of Management Series will advance Xxxxxxx'x
educational objectives and opportunities, Caliber shall hire, train and
compensate a sales force for the Essentials of Management Series of at least
four (4) full time equivalent employees of Caliber. Such sales force shall
pursue diligently the objectives of this Agreement. Wharton shall provide
training for the sales force hired by Caliber with respect to the Courses and
the Course Content, including preparing scripts to be used by the sales force.
In the event that Wharton is not satisfied with the performance or conduct of
any member of such sales force, Caliber will replace such member at Xxxxxxx'x
request.
Section 4.2. Marketing Materials. Wharton shall be responsible for
-----------------------------------
the development and distribution of direct marketing materials and print
advertising in connection with the Courses. Caliber shall assist Wharton in
preparing such materials and advertising by providing information about Caliber
and about the Session Delivery. Wharton shall publicize each Session in such
Wharton newsletters, brochures and other publications distributed by Wharton to
students, alumni and others as are deemed appropriate in the sole discretion of
Wharton.
Section 4.3. Telephone Support. Wharton shall use its in-house
---------------------------------
telemarketing staff to support any incoming calls regarding the Courses.
Wharton shall train such staff to answer questions about the Courses. Wharton
and Caliber will participate in outgoing calls to follow up on leads for
potential Participants and to verify Participant information.
Section 4.4. Internet. Xxxxxxx'x Executive Education Website
------------------------
shall advertise the EOM Courses. Xxxxxxx'x website shall be listed with all
major search engines. The parties respective websites will be linked to each
other. Xxxxxxx'x website shall specifically be designed to provide information
and inquiry response on-line. Caliber's website shall also market the Courses
and include a "virtual tour" of a Caliber Site.
-8-
Section 4.5. Public Relations. Neither party shall issue a press
--------------------------------
release or other public announcement or call a press conference regarding this
Agreement, the relationship between the parties or the Essentials of Management
Series without the prior written approval of the content of such release,
announcement or conference by the other party. Furthermore, the parties shall
cooperate to promote the Essentials of Management Series to the national
business media, trade and airline publications.
Section 4.6. Trade Shows. In order to increase the public
---------------------------
awareness of the additional educational opportunities presented by the
Essentials of Management Series, Wharton shall promote the Courses at Xxxxxxx'x
xxxxx at the ASTD conference to be held from May 31, 1998 to June 4, 1998. The
parties shall discuss from time to time any additional appearances at other
trade shows.
ARTICLE 5
REGISTRATION
Section 5.1. Registration and Collections by Wharton. Wharton
-------------------------------------------------------
shall register all Participants for the Courses and collect all registration
fees or other Revenues, prior to the commencement of the initial Session of a
Course.
Section 5.2. Collections by Caliber. Caliber shall collect any
--------------------------------------
registration fees or other Revenues that may be paid by a Participant at a
Caliber Site and shall remit to Wharton within five (5) business days of receipt
all such registration fees, if any, collected by Caliber.
Section 5.3. Admission Standards and Enrollment. In order to
--------------------------------------------------
ensure that the Participants have the appropriate background and experience to
benefit from the Courses, Wharton shall have sole control over the standards of
admission and acceptance of prospective Participants for each Course. Wharton
shall also control the enrollment size for each Caliber Site.
Section 5.4. Enrollment Fees and Revenue Collections. Wharton
-------------------------------------------------------
shall deposit all Revenues in a segregated bank account. Both parties shall
receive a copy of the bank statements with respect to such account.
-9-
ARTICLE 6
MONITORING
Section 6.1. Participants Surveys. Wharton and Caliber will
------------------------------------
jointly develop Participant surveys to evaluate the Sessions, including the
Course Content and Session Delivery, and will otherwise develop a process for
monitoring, evaluating, and modifying as necessary quality control mechanisms.
Notwithstanding the foregoing sentence, Wharton shall be responsible for the
quality of the Course Content and Caliber shall be responsible for the quality
of the Session Delivery.
Section 6.2. Reports. After the commencement of Session Delivery:
-----------------------
6.2.1 on or before the 15th day of each month, Caliber shall provide
to Wharton a report of each Session delivered during the prior month, which
report will identify the locations of the Session and the attendees, will
include a brief description of the overall quality of the Session Delivery, will
include photocopies of all Participant surveys and will include such other
information as the parties may agree from time to time; and
6.2.2 within three (3) days after delivery of a Session during which
there have occurred any significant technical or other disruptions or problems,
Caliber shall provide to Wharton a special report identifying and describing the
nature and extent of such disruption or problems, the source of the disruption
or problems, the corrective measures taken by Caliber, the reaction of the
Participants and any other information reasonably necessary for Wharton to
assess Caliber's compliance with its obligations under this Agreement.
Section 6.3. Implementation Audits. Wharton shall have the right
-------------------------------------
(but not the obligation) to observe the delivery of any Session at any Caliber
Site and to request reasonable changes by Caliber in the implementation or
Session Delivery to address any problems identified by Wharton.
Section 6.4. Reassessment. On or about March 31, 1999, the parties
----------------------------
will meet to discuss and reassess the initial business plan associated with this
Agreement. Such review shall include, but not be limited to, the reassessment
of: nature of the Course Content and any Derivative Works; the quality of the
Session Delivery; the viability of the marketing plan for each Course; the
Revenues produced by each Course; and the results of the Participant surveys for
each Course. On the basis of such reevaluation, the parties may decide to
modify, supplement or delete any aspect of this Agreement, other than Section
9.2, by executing a written amendment or supplement to this Agreement.
-10-
ARTICLE 7
OWNERSHIP AND LICENSE
Section 7.1. Ownership. The parties understand and agree that
-------------------------
Wharton and Xxxxxxx'x licensors will retain ownership of all Rights to the
Course Content, the Sessions and all Derivative Works and, subject to Section
8.1, will be able to use the Course Content, the Sessions and all Derivative
Works for Xxxxxxx'x other purposes. Wharton understands and agrees that Caliber
is not granting Wharton any ownership rights in the Caliber Learning Network or
in any equipment, property, systems, software, know-how, or technical or
operational information or other materials used by Caliber to deliver the
Sessions.
Section 7.2. Assignment. Notwithstanding anything herein to the
--------------------------
contrary, but subject in any event to the second sentence of Section 7.1 and to
Section 10.2, to the extent that any Rights of Caliber (other than any content
that is peculiar to the Caliber Learning Network) are or, during the term of
this Agreement, become embodied in the Course Content, the Sessions or any
Derivative Work, Caliber hereby assigns to Wharton all of Caliber's right, title
and interest in and to the Course Content, the Sessions and/or the Derivative
Works, without further consideration. By way of example, but not by way of
limitation, a set of student instructions on the use of the Caliber Learning
Network would remain the property of Caliber, whereas a video clip produced by
either Caliber or a third party hired by Caliber to supplement the Course
Content as a Derivative Work would be owned by Wharton.
Section 7.3. Caliber's Activities. Caliber represents, warrants
------------------------------------
and covenants that Caliber will perform all of its obligations under this
Agreement by either Caliber employees working within the scope of their
employment or by independent contractors who have assigned to Caliber in writing
and in advance the Rights of such independent contractors, if any, in and to the
Course Content, the Sessions and/or Derivative Works in a form approved by
Wharton in advance.
Section 7.4. Applications and Filings. Wharton and Caliber shall
----------------------------------------
cooperate in good faith with one another to make all necessary applications and
filings, including copyright registrations and other legal protections, both
U.S. and foreign, to protect the interests of Wharton in the Course Content, the
Sessions and the Derivative Works. Wharton shall pay all filing fees and other
direct expenses of such applications and filings.
Section 7.5. Precautions. Caliber shall take all reasonable
---------------------------
precautions to prevent the unauthorized copying, removal, alteration,
disclosure, use, loss of or improper access to the Course Content, the
Derivative Works (including, but not limited to, the Taped Sessions), and the
Sessions. Wharton shall take all reasonable precautions to prevent any copying,
removal, alteration, use, or improper access to the Taped Sessions that is
prohibited by Section 8.1.
-11-
Section 7.6. Use of Course Content by Caliber. Wharton grants to
------------------------------------------------
Caliber a limited, nonexclusive license to copy, transmit, use, and prepare
derivative works of the Course Content as part of the Sessions to the extent
necessary for Caliber to perform its obligations under this Agreement. This
license cannot be assigned or sublicensed by Caliber. This license will expire
upon the termination of this Agreement for any reason.
ARTICLE 8
EXCLUSIVITY AND CONFIDENTIALITY
Section 8.1. Negative Covenants. During and after the term of this
----------------------------------
Agreement, Wharton shall not copy, use, modify or distribute any Taped Sessions
for any purpose, other than in connection with either (a) Xxxxxxx'x on campus or
residential educational programs or (b) Xxxxxxx'x custom educational programs in
any location(s) delivered through traditional methods using live classroom
instruction, without Caliber's prior written permission, which consent will not
be unreasonably withheld. During the term of this Agreement, except as
permitted by Section 3.4, Caliber shall not copy, use, modify or distribute any
Taped Sessions for any purpose, without Xxxxxxx'x prior written permission,
which consent will not be unreasonably withheld. After the term of this
Agreement, Caliber shall not copy, use, modify or distribute any Taped Sessions
for any purpose.
Section 8.2. Right of First Offer. In the event that either party
------------------------------------
desires to produce non-credit, open enrollment courses or for credit, graduate
or undergraduate level courses or a series of such courses via a distance
learning broadcast or network system, other than the Internet, in the field of
business education, then both parties shall discuss such opportunity and, if
both parties are interested in pursuing such opportunity, negotiate in good
faith for a period of sixty (60) days to enter into a definitive written
agreement. In the event that no definitive agreement is reached during such
period (as such period may be extended by the parties in writing), then either
party may negotiate with any third party to produce such course or courses.
This Section 8.2 shall expire on the delivery of a notice of termination
pursuant to Article 15 or on the expiration of this Agreement.
Section 8.3. Confidentiality.
-----------------------------
8.3.1. Caliber acknowledges that, during the term of this Agreement
and in the course of performing its obligations hereunder, Caliber may be the
recipient of or become exposed to Confidential Information of Wharton. Caliber
acknowledges and agrees that Xxxxxxx'x Confidential Information shall remain the
exclusive property of Wharton. Caliber shall use the same degree of care in
maintaining the confidential nature of Xxxxxxx'x Confidential Information that
Caliber uses with respect to Caliber's own Confidential Information of a similar
nature.
-12-
8.3.2. Wharton acknowledges that, during the term of this Agreement
and in the course of performing its obligations hereunder, Wharton may be the
recipient of or become exposed to Confidential Information of Caliber. Wharton
acknowledges and agrees that Caliber's Confidential Information shall remain the
exclusive property of Caliber. Wharton shall use the same degree of care in
maintaining the confidential nature of Caliber's Confidential Information that
Wharton uses with respect to Xxxxxxx'x own Confidential Information of a similar
nature.
Section 8.4. Non-Hire. During the term of this Agreement and for
------------------------
one (1) year thereafter, Caliber shall not hire any faculty of Wharton that has
participated in any Session under this Agreement.
ARTICLE 9
COMPENSATION
Section 9.1. Xxxxxxx'x Right to Revenues. For and in consideration
-------------------------------------------
of the promises and covenants made herein by Wharton, Caliber acknowledges that
all enrollment fees, and any other gross revenues directly resulting from
delivery of any Course over the Caliber Learning Network, net of any refunds
granted by Wharton (collectively, "Revenues"), shall inure to the benefit of and
be paid over to Wharton, subject to Section 9.2.
Section 9.2. Caliber's Session Delivery Fee. For and in
----------------------------------------------
consideration of the promises and covenants made herein by Caliber, including
but not limited to the agreement of Caliber to deliver the Course Content over
the Caliber Learning Network, Wharton agrees to pay to Caliber a fee (the
"Session Delivery Fee") equal to /*/ of the Revenues derived from each Course.
Section 9.3. Distribution and Payment. Within five (5) days
----------------------------------------
following the broadcast of the first Session of a Course, Wharton shall deliver
to Caliber seventy-five percent (75%) of the Session Delivery Fee for such
Course. Within thirty (30) days following the broadcast of the final Session of
the Course, including any period during which enrolled Participants may withdraw
from the Course for a refund in accordance with Xxxxxxx'x standard policies,
Wharton shall deliver to Caliber the remaining balance of the twenty-five
percent (25%) of the Session Delivery Fee for such Course, as adjusted for any
refunds given or enrollment fees received by Wharton after the initial payment
under this Section 9.3.
------------------
/*/ Text omitted pursuant to a request for confidential treatment and filed
seperately with the Securities and Exchange Commission.
-13-
Section 9.4. Penalty for Late Distribution. Interest will accrue
---------------------------------------------
at a rate of 0.833 % per month on fees not distributed on a timely basis to
Caliber in accordance with this Article 9.
Section 9.5. Audit. Upon reasonable prior written notice, each
---------------------
party shall have the right to audit, review and copy at its sole expense and on
a confidential basis, the financial accounts and records and quality and other
performance records maintained by the other party related to payments and
performance under this Agreement. The auditing party shall take reasonable
steps to avoid any unnecessary disruption of the audited party's business.
Section 9.6. Expenses. Except as otherwise expressly provided in
------------------------
this Agreement, each party shall bear its own expenses in connection with the
performance of its obligations under this Agreement. Furthermore, neither party
shall be liable for any third party contracts or other obligations entered into
by the other party in connection with this Agreement.
ARTICLE 10
WHARTON AND CALIBER MARKS
Section 10.1. Wharton Marks. Caliber acknowledges that the
------------------------------
trademarks identified on Exhibit D attached hereto (the "Wharton Marks") are
---------
the registered or unregistered trademarks and/or service marks, as the case may
be, of Wharton. Wharton hereby grants to Caliber a non-exclusive, limited
license to use the Wharton Marks for and during the term of this Agreement in
connection with promotion, marketing, developing and delivering the Courses in
accordance with this Agreement. Caliber expressly acknowledges Xxxxxxx'x rights
in and to the Wharton Marks and shall not represent in any manner that Caliber
has acquired any ownership rights in the Wharton Marks.
Section 10.2. Caliber Marks. Wharton acknowledges that the
------------------------------
trademarks identified on Exhibit E attached hereto (the "Caliber Marks") are the
---------
registered or unregistered trademarks and/or service marks, as the case may be,
of Caliber. Caliber hereby grants to Wharton a non-exclusive, limited license
to use the Caliber Marks for and during the term of this Agreement in connection
with promoting, marketing, developing and delivering the Courses in accordance
with this Agreement. Wharton expressly acknowledges Caliber's rights in and to
the Caliber Marks and shall not represent in any manner that Wharton has
acquired any ownership rights in the Caliber Marks.
Section 10.3. Misuse of Marks. Each party understands and agrees
--------------------------------
that any use of the other party's marks, other than as expressly authorized by
this Agreement, without the other party's prior written consent, is an
infringement of such other party's rights in and to its marks and that the right
granted herein to use the other party's marks does not extend beyond the
-14-
termination or expiration of this Agreement. Each party expressly covenants
that, during and after the term of this Agreement, such party shall not,
directly or indirectly, commit any act of infringement or dilution or contest or
aid others in contesting the validity of such other party's right to use its
marks or take any other action in derogation thereof.
Section 10.4. Monitoring. Each party acknowledges an obligation to
---------------------------
monitor its own use of the other party's marks and agrees to do so. Each party
shall notify the other of any claim, demand, cause of action that the other
party may have based upon or arising from any unauthorized attempt by any person
or entity to use such other party's marks, any colorable variation thereof, or
any other xxxx, name or indicia in which such other party has or claims a
proprietary interest and shall assist such other party, upon its request and at
such other party's expense, in taking action including legal action, if any, as
such other party may deem appropriate to halt such activities, but shall take no
action nor incur any expenses on such other party's behalf without such other
party's approval.
Section 10.5. Requirements. Each party further covenants to: use
-----------------------------
the other party's marks solely in the manner prescribed by such other party;
observe all laws with respect to the registration of trade names and assumed or
fictitious names; include in any application therefor a statement that such
party's use of the other party's marks is limited by the terms of this
Agreement; provide such other party with a copy of any such application and
other registration document(s); and observe such requirements with respect to
trademark and service xxxx registrations and copyright notices as the other
party may, from time to time, require, including, without limitation, affixing
"_," "TM", or "(R)" adjacent to such other party's marks.
Section 10.6. Guidelines. Each party shall from time to time
---------------------------
provide written guidelines to the other party, regarding the proper depiction of
the party's marks. Press releases, catalog copy, copy and graphics for print
advertising, information booklets, and promotional literature that a party
proposes to use in conjunction with a Course or the marketing of a Course,
together with a description of the proposed publication method, shall be
submitted to the other party for review, editing and comment, at least ten (10)
days prior to intended use or reproduction (whichever is to occur first). If not
responded to within ten (10) days of presentation, the material shall be deemed
disapproved. Components or advertisements previously approved may be used
subsequently in the same publication method without further need for submission
and approval. Each party shall designate as the other party's contact a person
on its respective staff who shall have responsibility for the review and
response procedures described in this Section 10.6.
Section 10.7. Use of Wharton Name. Except as expressly permitted
------------------------------------
by this Article 10, during and after the term of this Agreement, Caliber and its
affiliates, employees, and agents shall not use either The University of
Pennsylvania's name or Xxxxxxx'x name or any adaptation thereof, or any
University or Wharton seal, logotype, trademark, or service xxxx, or the name,
xxxx, or logotype of any University or Wharton representative or organization in
any
-15-
way without the prior written consent of Wharton in its sole discretion. Without
limiting the foregoing, Caliber shall provide notice to Wharton, at least five
(5) business days in advance, containing a copy of the text of any Federal or
state securities law filing planned by Caliber that refers to any of The
University of Pennsylvania, Xxxxxxx, any University or Wharton representative or
organization, or this Agreement. During such five (5) business day period,
Wharton may elect to provide comments to Caliber regarding the text of any such
references. Caliber shall promptly implement all reasonable comments from
Wharton. With respect to any public filing of this Agreement required by law,
Caliber shall seek confidential treatment of the provisions of this Agreement
reasonably requested by Wharton from time to time, including, but not limited
to, Sections 8.1, 8.2, 9.1 and 9.2 and Exhibits C and D.
ARTICLE 11
USE OF PARTICIPANT AND PROSPECT NAMES
Section 11.1. Participants. The names of all Participants shall be
-----------------------------
proprietary to both Wharton and Caliber. During and after the term of this
Agreement, either party may use such names in connection with this Agreement and
its other business activities but shall maintain the confidentiality of such
names.
Section 11.2. Prospects. The names of all persons identified as
--------------------------
prospective Participants are proprietary to both Wharton and Caliber. During
and after the term of this Agreement, Caliber shall not use such names in
connection with this Agreement or its other business activities without the
prior written approval of Wharton. During and after the term of this Agreement,
Wharton may use such names in connection with this Agreement and its other
business activities, and each party shall maintain the confidentiality of such
names.
ARTICLE 12
LIMITATION OF LIABILITY
Section 12.1. Consequential Damages. NEITHER PARTY SHALL BE LIABLE
--------------------------------------
TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE
DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES ARISING OUT OF THIS AGREEMENT OR
ITS TERMINATION, WHETHER FOR BREACH OF WARRANTY OR ANY OBLIGATION ARISING
THEREFROM OR OTHERWISE, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR TORT AND
IRRESPECTIVE OF WHETHER THE PARTY HAS ADVISED OR HAS BEEN ADVISED OF THE
POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.
-16-
ARTICLE 13
INDEMNIFICATION AND INSURANCE
Section 13.1. By Caliber. Caliber shall indemnify, defend and hold
---------------------------
harmless Wharton from and against any and all loss, damage, injury, liability or
suit, including any attorneys' fees and costs, incurred by Wharton as a result
of or arising from: any negligent act or omission by Caliber; any breach by
Caliber of any third party contract; any claims arising out of the Federal or
state securities laws; any Participant's claim of personal injury or property
damage while attending a Session at a Caliber Site; any claim that any
contribution by Caliber to any Session, Derivative Work, or Session Delivery
violates any patent, copyright, trade secret or other proprietary right; and any
claim that use by Wharton of the Caliber Marks in accordance with this Agreement
infringes the rights of a third party.
Section 13.2. Caliber's Insurance. Caliber shall procure and
------------------------------------
maintain a policy or policies of comprehensive general liability insurance,
including broad form and contractual liability, in a minimum of $1,000,000
combined single limit per occurrence and in the aggregate as respects personal
injury, bodily injury and property damage arising out of Caliber's performance
under this Agreement. The policy or policies of insurance described in this
Section 13.2 shall be issued by an insurance carrier with an A.M. Best rating
of "A" or better and shall name The Trustees of The University of Pennsylvania
as an additional insured with respect to Caliber's performance under this
Agreement. Caliber shall provide Wharton with certificates evidencing the
insurance coverage required herein and all subsequent renewals thereof. Such
certificates shall provide that the insurance carrier(s) shall notify Wharton in
writing at least thirty (30) days prior to cancellation or material change in
coverage. The parties may periodically review the adequacy of the minimum
limits of liability insurance specified in this Section 13.2, and Wharton
reserves the right to require Caliber to adjust the liability insurance
coverages. The specified minimum insurance amounts do not constitute a
limitation on the obligation of Caliber to indemnify Wharton under this
Agreement.
Section 13.3. By Wharton. Wharton shall indemnify, defend and hold
---------------------------
harmless Caliber from and against any and all loss, damage, injury, liability or
suit, including any attorneys' fees and costs, incurred by Caliber as a result
of or arising from: any claims that any Course Content provided by Wharton to
Caliber infringes or otherwise violates any copyright, trade secret or other
proprietary right; and any claims that use by Caliber of the Wharton Marks in
accordance with this Agreement infringes the rights of a third party.
-17-
ARTICLE 14
TERM
Section 14.1. Expiration and Renewal. This Agreement commences on
---------------------------------------
the Effective Date and shall terminate on the fifth anniversary of this
Agreement, unless terminated earlier by either party pursuant to Section 15.
The parties may mutually agree to renew this Agreement upon its expiration.
ARTICLE 15
EARLY TERMINATION
Section 15.1. Voluntary Termination. Either party may elect to
--------------------------------------
terminate this Agreement for any reason or for no reason by giving a written
notice of Termination to the other party at least one hundred twenty (120) days
prior to the second anniversary of the Effective Date. Subject to Section 15.5,
any such voluntary termination shall become effective on the second anniversary
of the Effective Date.
Section 15.2. Default. This Agreement may be terminated by either
------------------------
party if the other party is in breach of any material provision of this
Agreement, but only after written notice of default and opportunity to cure has
been given to the breaching party. The notice of default must provide for an
opportunity to cure of at least thirty (30) days following receipt of the
notice. If the party receiving the notice has not cured the breach before the
cure date stated in the notice, then the party giving notice may terminate this
Agreement by giving the breaching party a written notice of termination, which
will be effective upon delivery. With respect to breaches stated herein or
otherwise determined to be incurable, a period of cure does not have to be
provided.
Section 15.3. Material Breaches That May Be Cured. The following
----------------------------------------------------
types of activity are acknowledged by the parties to jeopardize the offering of
Courses under this Agreement, and shall, unless cured as provided herein, be
cause for termination:
15.3.1 to fail to adhere to any material provision of this Agreement;
and
15.3.2 to fail to provide quality delivery of any Session.
Section 15.4. Material Breaches That Cannot Be Cured. The
-------------------------------------------------------
following types of activity are acknowledged by the parties to be incurable,
material breaches and are cause for immediate termination effective upon
delivery of written notice of termination:
-18-
15.4.1 any willful breach of the other party's confidentiality
obligations under this Agreement;
15.4.2 any act of theft or embezzlement by the other party;
15.4.3 any breach of the other party's exclusivity obligations under
Sections 8.1 or 8.2 of this Agreement;
15.4.4 if the other party experiences a Trigger Event, at the
election of the party that is not experiencing a Trigger Event, provided that no
written notice of termination is required in such event; and
15.5.5 any material breach of the covenants of Article 10, including,
but not limited to, dilution of the other party's marks or damage to the other
party's reputation.
Section 15.6. Effect of Termination. Notwithstanding the delivery
--------------------------------------
of a notice of default or notice of termination by either party to the other
under this Article 15, all obligations to perform services shall continue in
effect and be duly observed and complied with by both parties until the later
of: the effective date of any termination; or until the completion of the last
Session of any Course that has commenced or is scheduled to commence less than
forty-five (45) days after the time of delivery of the notice of termination.
Section 15.7. Ownership After Termination. Early termination of
--------------------------------------------
this Agreement pursuant to this Section 15 for any reason shall not affect the
respective ownership rights of the parties set forth in Section 7. Upon
termination of this Agreement, all rights to use and promote the Courses in
conjunction with the other party's marks shall immediately cease.
ARTICLE 16
MISCELLANEOUS
Section 16.1. Notices. Any notices or other communications
------------------------
required or which may be given by either party to the other party under this
Agreement shall be in writing and may be sent by facsimile. However, the
original shall be sent either by overnight courier, with a verified receipt, or
by certified mail, return receipt requested, postage prepaid and addressed to
and at the address stated below or to such other address as the parties shall
subsequently designate to each other by notice given in accordance with this
Section 16.1. Such notice shall be deemed to be sufficiently given when the
original is received by the receiving party or five (5) days after mailing as
provided above, whichever first occurs.
-19-
FOR WHARTON:
The Trustees of the University of Pennsylvania
acting through the Aresty Institute of Executive Education
at The Xxxxxxx School
000 Xxxxx 00/xx/ Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: Xxxxxx XxXxxxx Xxxxxx
Fax: 000-000-0000
with a required copy to:
Office of the General Counsel
The University of Pennsylvania
000 Xxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxx, Esq.
Fax: 000-000-0000
FOR CALIBER:
Caliber Learning Network, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
Fax: 000-000-0000
with a copy to:
Sylvan Learning Systems, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: O. Xxxxxx Xxxxx, Esq., Vice President and General Counsel
Fax: 000-000-0000
Section 16.2. Independent Contractors. In making and performing
----------------------------------------
this Agreement, the parties act and shall act at all times as independent
contractors, and nothing contained herein shall be construed or implied to
create an agency, association, partnership or joint venture between the parties.
At no time shall either party make any commitments or incur any charges or
expenses for or in the name of the other party.
-20-
Section 16.3. Applicable Law and Jurisdiction. This Agreement
------------------------------------------------
shall be deemed to have been made in the Commonwealth of Pennsylvania and shall
be construed and enforced in accordance with, and the validity and performance
hereof shall be governed by, the laws of the Commonwealth of Pennsylvania,
without regard to conflict of laws principles of any jurisdiction. In the event
that a party perceives the existence of a dispute with the other party
concerning any right or duty provided for herein, the parties will, as soon as
practicable, confer in an attempt to resolve the dispute. If the parties are
unable to resolve such dispute amicably, then the parties hereby submit to the
exclusive jurisdiction of and venue in the state and federal courts located in
the Eastern District of Pennsylvania with respect to any and all disputes
concerning the subject of, or arising out of, this Agreement.
Section 16.4. Force Majeure. Neither party shall be liable for
------------------------------
delay or failure in performance of any of its obligations under this Agreement
when such delay or failure arises from events or circumstances beyond the
reasonable control of such party (including, without limitation, acts of God,
fire, flood, war, explosion, sabotage, terrorism, embargo, civil commotion, acts
or omissions of any government entity, or labor disputes).
Section 16.5. Waiver. No failure on the part of either party to
-----------------------
exercise, no delay in exercising, and no course of dealing with respect to any
right, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
privilege preclude any other or further exercise thereof or the exercise of any
other right, power or privilege.
Section 16.6. Assignment. Neither party shall be permitted to
---------------------------
assign this Agreement or any part of it, either directly or by stock sale,
merger or operation of law, without the prior written consent of the other party
in its sole discretion. Any prohibited assignment of this Agreement or the
rights hereunder shall be null and void. No permitted assignment shall relieve
the assigning party of responsibility for the performance of any accrued
obligations which it has prior to such assignment.
Section 16.7. Survival beyond Termination. The rights and
--------------------------------------------
obligations arising under Sections 5.4, 7.1-7.5, 8.1, 8.3 and 8.4 and Articles
9-13 and 15 shall survive any termination or expiration of this Agreement in
accordance with the respective terms of such provisions.
Section 16.8. Compliance with Laws. Caliber and its affiliates
-------------------------------------
shall comply with all prevailing laws, rules and regulations that apply to its
activities or obligations under this Agreement. Without limiting the foregoing,
it is understood that this Agreement may be subject to the Family Educational
Rights and Privacy Act of 1974, as amended. Wharton and Caliber shall not
discriminate against any employee or applicant for employment because of race,
color, sex, sexual or affectional preference, age, religion, national or ethnic
origin, handicap, or because he or she is a disabled veteran or a veteran of the
Vietnam Era.
-21-
Section 16.9. Binding Nature of Agreement. This Agreement shall be
--------------------------------------------
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that any assignment must comply with Section 16.6
to be effective.
Section 16.10. Counterparts, Headings and Exhibits. This Agreement
---------------------------------------------------
may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. The headings used in this Agreement are for convenience only and
are not to be considered in construing or interpreting any term or provision of
this Agreement. All Schedules and Exhibits hereto are hereby incorporated in
this Agreement and made a part hereof.
Section 16.11. Integration and Amendment. This Agreement, together
-----------------------------------------
with all fully executed exhibits thereto, embodies the entire agreement and
understanding between the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof. This Agreement may not be
changed, modified, extended or terminated except by written amendment executed
by an authorized representative of each party.
Section 16.12. Severability. If any provision of this Agreement
----------------------------
shall be held to be illegal, invalid or unenforceable, then such illegality,
invalidity or unenforceability shall attach only to such provision and shall not
in any manner affect or render illegal, invalid or unenforceable any other
provision of this Agreement, and this Agreement shall be carried out as if any
such illegal, invalid or unenforceable provision were not contained herein.
Section 16.13. Number of Days. Except as otherwise expressly
------------------------------
provided in this Agreement, in computing the number of days for purposes of this
Agreement, all days shall be counted, including Saturdays, Sundays and holidays;
provided that if the final day of any time period falls on a Saturday, Sunday or
holiday on which Federal banks are or may elect to be closed, then the final day
shall be deemed to be the next day which is not a Saturday, Sunday or such
holiday.
-22-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as at
the day and year first above written.
CALIBER LEARNING NETWORK, INC. THE TRUSTEES OF THE UNIVERSITY OF
PENNSYLVANIA acting through THE
ARESTY INSTITUTE OF EXECUTIVE
EDUCATION AT THE XXXXXXX SCHOOL
By: ______________________________ By: ______________________________
Xxxxx X. Xxxxxx, President Xxxxxxx X. Xxxxxxx
Interim Xxxxxxx
The Trustees of the University of
Pennsylvania
By: ______________________________
Xxxxxx X. Xxxxxxx
Xxxx
The Xxxxxxx School
By: ______________________________
Xxxxxx X. Xxxxxxxxxxxx, Xx.
Vice Xxxx and Director
The Aresty Institute of Executive
Education
-23-
EXHIBIT INDEX
This Exhibit Index to the Master Course Development Agreement is dated
March 26, 1998. The following Exhibits are incorporated by reference into this
Agreement.
EXHIBITS:
Exhibit A-1 Description of Course 1
Exhibit A-2 Description of Course 2
Exhibit B Additional Course Form
Exhibit C Course Schedule
Exhibit X Xxxxxxx Marks
Exhibit E Caliber Marks
IN WITNESS WHEREOF, for adequate consideration and intending to be
legally bound, the parties hereto have caused this Exhibit Index to the Master
Course Development Agreement to be executed by their duly authorized
representatives on the date first above written.
CALIBER LEARNING NETWORK, INC. THE TRUSTEES OF THE UNIVERSITY OF
PENNSYLVANIA acting through THE ARESTY
INSTITUTE OF EXECUTIVE EDUCATION AT THE
XXXXXXX SCHOOL
By: ______________________________ By: ______________________________
Xxxxx X. Xxxxxx, President Xxxxxx X. Xxxxxxxxxxxx, Xx.
Vice Xxxx and Director
The Aresty Institute of Executive
Education
EXHIBIT A-1
-----------
DESCRIPTION OF COURSE 1
. Title: "The Essentials of Management: Building a Business Case".
. Offered two times during the Fall, each six weeks in duration, thereafter
proposed to run once per quarter.
. Three hours per session from 7-10 pm EST.
. Target enrollment per offering is 350.
. Minimum classroom size at each Caliber Site per room is 6 and maximum is 12.
. Method of registration is submission of application to Wharton who then
enrolls students in conjunction with Wharton/Caliber enrollment system.
. Target Market: Entry and mid-level managers who need to develop specific
functional skills and who generally would not be considered candidates for
traditional executive education programs.
. Course Credit: none.
. Price: $2,500.
. Financial projections (based on 350 students at $2,500 price): /*/ in
Revenues (but with volume discounts of /*/ , projected net revenues of /*/
. Caliber Sites (30):
Cherry Hill, NJ Dallas, TX Seattle, WA
Paramus, NJ Minneapolis, MN Cincinnati, OH
Broad St, NY Cleveland, OH Milwaukee, WI
Park Ave, NY Detroit, MI Nashville, TN
Boston, MA Richmond, VA Penn Plaza, NY
Chicago, IL Denver, CO Salt Lake City, UT
Baltimore, MD Charlotte, NC Rochester, NY
San Jose, CA Kansas City, MO San Diego, CA
Atlanta, GA San Francisco, CA Houston, TX
Culver City, CA Indianapolis, IN St. Louis, MO
-------------------
/*/ Text omitted pursuant to a request for confidential treatment and filed
seperately with the Securities and Exchange Commission.
EXHIBIT A-2
-----------
DESCRIPTION OF COURSE 2
. Title: "The Essentials of Management: Financial Statements".
. Offered once during the Winter of 1999, six weeks in duration, thereafter
proposed to run once per quarter.
. Three hours per session from 7-10 pm EST.
. Target enrollment is 375.
. Minimum classroom size at each Caliber Site per room is 6 and maximum is 12.
. Method of registration is submission of application to Wharton who then
enrolls students in conjunction with Wharton/Caliber enrollment system.
. Target Market: Entry and mid-level managers who need to develop specific
functional skills and who generally would not be considered candidates for
traditional executive education.
. Course Credit: none.
. Price: $2,500.
. Financial projections (based on 375 students at $2,500 price): /*/ in
Revenues (but with volume discounts of /*/ , projected net revenues of /*/
. Caliber Sites (40):
Cherry Hill, NJ Dallas, TX Seattle, WA Raleigh, NC
Paramus, NJ Minneapolis, MN Cincinnati, OH Jacksonville, FL
Broad St, NY Cleveland, OH Milwaukee, WI Orlando, FL
Park Ave, NY Detroit, MI Nashville, TN Washington, DC
Boston, MA Richmond, VA Penn Plaza, NY Tampa, FL
Chicago, IL Denver, CO Salt Lake City, UT Pittsburgh, PA
Baltimore, MD Charlotte, NC Rochester, NY Los Angeles, CA
San Jose, CA Kansas City, MO San Diego, CA Miami, FL
Atlanta, GA San Francisco, CA Houston, TX Palo Alto, CA
Culver City, CA Indianapolis, IN St. Louis, MO Phoenix, AZ
-------------------
/*/ Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
EXHIBIT B
ADDITIONAL COURSE FORM
Capitalized terms used in this Exhibit B shall have the same meaning given to
them in the Master Course Development Agreement between Caliber and Wharton
dated as of _______________, 1998 (the "Agreement"). In the event of any
conflict, inconsistency or ambiguity between this Exhibit and the Agreement,
this Exhibit shall prevail.
1. Course Title: [TO BE ADDED]
------------
2. Number of Sessions: ___.
------------------
3. Duration of Course: Approximately ___ weeks.
------------------
4. Number and Location of Caliber Sites: [TO BE ADDED]
------------------------------------
5. Target Enrollment: [TO BE ADDED]
-----------------
6. Minimum and Maximum Class Size: [TO BE ADDED]
------------------------------
7. Registration Fee and Discounts: $_________ [ANY DISCOUNTS TO BE ADDED].
------------------------------
8. Course Times: ______ to _______ pm EST.
------------
9. Course Schedule: [TO BE ADDED].
---------------
10. Course Credit: None.
-------------
11. Marketing Plan: See attached Schedule 1.
--------------
12. Financial Projections: [TO BE ADDED]
---------------------
13. Other Terms and Conditions: [TO BE ADDED AS NEEDED]
--------------------------
EXHIBIT C
---------
SCHEDULE OF COURSES
-------------------
COMMITTED COURSES:
------------------
1998 1998 1999 1999
Fall 1 Fall 2 Winter Spring
------ ------ ------ ------
Business Case: X X X X
Financial Statements: X X
PROPOSED COURSES:
-----------------------
1999 1999 1999 2000 2000 2000 2000
Spring Summer Fall Winter Spring Summer Fall
------ ------ ------ ------ ------ ------ ----
Business Case: X X X X X X
Financial Statements: X X X X X X
Drivers: X X X X X X X
Capital Budget: X X X X X
"New Course": X X X X X
EXHIBIT D
---------
WHARTON MARKS
-------------
"Wharton"
"Wharton" and logo (see attached)
"The Xxxxxxx School"
"EOM"
"Essentials of Management"
EXHIBIT E
CALIBER MARKS
-------------
"BOSS"
"Broadcast Origination Support System"
"Caliber" and logo (see attached)
"Caliber Learning Campus"
"Caliber Learning Center"
"Caliber Learning Network"
