EXHIBIT 10.1
AMENDED AND RESTATED COOPERATION AGREEMENT
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This Amended and Restated Cooperation Agreement (the "Agreement") is
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made this 30/th/ day of September, 1999 (the "Effective Date") by and between
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Software AG ("SAG"), a German corporation, with its principal place of business
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in Darmstadt, Germany, SAGA SOFTWARE, Inc. ("SAGA"), a Virginia corporation,
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with its principal place of business in Reston, Virginia, USA, and SAGA SYSTEMS,
Inc. ("SAGSI"), a Delaware corporation with its principal place of
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business in Reston, Virginia, USA. SAGSI is made a party to this Agreement
solely for purposes of Sections 11.3, 11.4 and 14.9 hereof.
WHEREAS, SAG and SAGA are parties to that certain Cooperation Agreement
dated March 31, 1997 (the "Original Effective Date"), as amended by
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that certain Amendment to Cooperation Agreement between SAG and SAGA dated
October 23, 1997 (the "Original Agreement");
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WHEREAS, the parties desire to modify their relationship by replacing the
Original Agreement in its entirety with this Agreement, effective upon execution
hereof; and
WHEREAS, the parties wish to expand their respective distribution channels,
permitting each company to focus on differing enterprise market segments;
NOW THEREFORE, in consideration of the mutual promises contained herein,
the Original Agreement is hereby amended and restated in its entirety to read as
follows:
1. Definitions
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1.1. "Additional SAG Products" means any Product, technology,
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service, or software program SAG or any of its Affiliates may at any time
possess and offer for sale, lease or licensing or otherwise provide to third
parties, directly or indirectly, excluding (1) the Core SAG Products, (2) the
Entire-X Product, (3) the Bolero Product, (4) the Tamino Product, and (5) Future
SAG DBMS and Software Development Tools.
1.2. "Affiliate," with respect to a party, means any corporation or
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other entity or person that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with,
such party.
1.3. "Bolero Product" means SAG's Bolero Product, and any Derivatives
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thereof.
1.4. "Change of Control" means a change of control of a party where,
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after the date hereof, any person, together with its Affiliates (i) becomes,
directly or indirectly, whether by merger, consolidation, purchase or any other
form of acquisition or transfer, the beneficial owner
of 50% or more of the combined voting power of such party's then outstanding
securities or other equity interests, (ii) otherwise acquires, directly or
indirectly, the power to direct, or cause the direction of, the management and
policies of such party, whether through the ownership of securities or other
interests, by contract or otherwise, or (iii) acquires all or substantially all
of the assets of such party.
1.5. "Construct Product" means SAGA's Construct Product and any
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Derivatives thereof.
1.6. "Core SAG Products" means all of the SAG Products listed on
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Exhibit B to the Original Agreement, any SAG Products licensed to a customer by
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SAGA under the Original Agreement at any time prior to the Effective Date,
together with all Derivatives of any of the foregoing, including SAG's Entire
family of products, but excluding the Bolero Product, the Tamino Product, the
Entire-X Product, the Additional SAG Products and the Future SAG DBMS and
Software Development Tools.
1.7. "Derivative," with respect to any SAG Product or any SAGA Product
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(as applicable in either case, the "Original Product"), means any Product,
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technology, service, or software program, whether or not marketed under a
different name, re-packaged or bundled with other Products or services, that SAG
or any of its Affiliates (with respect to the SAG Products) or that SAGA or any
of its Affiliates (with respect to SAGA Products), as applicable, may at any
time possess and offer for sale, lease or licensing or otherwise make available
to any third party, directly or indirectly, which is a revision, correction,
patch, adaptation (including versions of a Product intended for different
hardware or software platforms), extension, continuation, release, new version,
translation or any other work that would constitute a "derivative work" of such
Original Product under applicable law.
1.8. "Distributing Party" means, with respect to a SAG Product or SAGA
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Product, SAGA or SAG, respectively, which is not the Originating Party, but
instead acquires rights with respect to the SAG Product or SAGA Product pursuant
to this Agreement.
1.9. "Distribution Charge" means either (i) an amount paid by a party
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to a third party for obtaining from an End User an order for Licensed Products
or Maintenance, which order is placed directly to such party, or (ii) the amount
retained by a Distributor for the distribution of Licensed Products or the
enrollment of End Users for Maintenance, which amount is determined by deducting
from the applicable Amounts Invoiced (as defined in Section 6.2.1) any amounts
payable to the party that appointed the Distributor.
1.10. "Distributor" means any distributor (including, but not limited
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to, a value-added reseller, subdistributor, Affiliate, consultant, or systems
integrator) directly or indirectly appointed by SAG or SAGA to distribute
Licensed Products.
1.11. "End User" means a person or entity that has the right to use a
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Licensed Product pursuant to an End User Agreement with SAG, SAGA or a
Distributor.
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1.12. "End User Agreement" means an agreement between SAG, SAGA or a
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Distributor and an End User, pursuant to which the End User receives the right
to use a Licensed Product and/or Maintenance.
1.13. "Exclusivity Period" means the period beginning on the Effective
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Date and ending on December 31, 2005.
1.14. "Existing SAGA Customers" means those persons or entities that
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have an existing license for use of a SAG Product, as listed on Schedule 1
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hereto, together with all Affiliates of such persons or entities and any
successors, assignees or acquirors of all or any substantial part of the
businesses of any of the foregoing. Existing SAGA Customers will include
entities that become Affiliates of an Existing SAGA Customer as a result of a
merger, acquisition, or similar transaction during the Exclusivity Period, but
will not include any entity that becomes an Affiliate of an Existing SAGA
Customer after expiration of the Exclusivity Period.
1.15. "Entire-X Product" means SAG's Entire-X Product and any
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Derivative thereof.
1.16. "First Level Support" means any technical support given by SAG or
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SAGA in response to an End User's request for Maintenance, which technical
support does not reasonably require access to or use of the Source Code for the
relevant Licensed Products.
1.17. "Future SAG DBMS and Software Development Tools" means any DBMS
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or Software Development Tool that SAG or any of its Affiliates may at any time
possess and offer for sale, lease or licensing or otherwise provide to third
parties, directly or indirectly, excluding (1) the Core SAG Products, (2) the
Entire-X Product, (3) the Bolero Product, and (4) the Tamino Product. "DBMS"
means software that controls the organization, storage, retrieval, security, and
integrity of information or data in a database. DBMS software accepts requests
from the application and instructs the operating system to transfer the
appropriate data. "Software Development Tool" means a development product for
building software applications including add-on modules for a comprehensive
development environment including database access interfaces, automatic code
generation tools and a data dictionary.
1.18. "Licensed Product" means, with respect to either party in its
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capacity as an Originating Party, the Products as to which such Originating
Party has granted license rights to the Distributing Party pursuant to this
Agreement.
1.19. "Maintenance" means the provision of reasonable and customary
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maintenance and technical support services for Licensed Products to End Users,
as practiced by the parties prior to the Effective Date, or as subsequently
agreed by the parties, including, but not limited to, supplying telephone
support, new versions and releases, and periodic fixes and error corrections.
1.20. "Non-U.S. Territory" means all the Territory that is not U.S.
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Territory.
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1.21. "Object Code" means the executable computer code related to a
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Product produced by processing (e.g., compiling, assembling or interpreting) the
Source Code.
1.22. "OEM Partner" means a company that licenses products or
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technology to be incorporated in its delivered products or solutions for resale
through its sales channels. To be an OEM Partner, the company must add value by
requiring the Originating Party to make substantial adjustments or revisions to
the Source Code of the product or technology before selling it.
1.23. "Originating Party" means, with respect to a SAG Product or SAGA
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Product, SAG or SAGA, respectively, which developed the SAG Product or SAGA
Product or otherwise caused the SAG Product or SAGA Product to be brought within
the scope of this Agreement.
1.24. "Product" means either a SAG Product or a SAGA Product, as the
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case might be and as defined in Section 1.25 and Section 1.26 below. Product in
the sense of this Agreement shall only mean computer software as software
written and designed for general purposes. Application Products, being computer
software written and designed to solve a specific End User problem, shall
explicitly not be Products in the sense of this Agreement and thus not be
covered by the Agreement.
1.25. "SAG Product" means any presently existing or future computer
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software, including, but not limited to, computer programs, parts thereof,
documentation therefor and related materials, (i) that a SAG Entity develops or
has developed for it, whether through employees or independent contractors and
whether alone or with others, (ii) in which a SAG Entity owns or acquires
proprietary or license rights (other than under this Agreement), (iii) announced
as a product of a SAG Entity (other than by virtue of its being licensed by SAGA
under this Agreement), (iv) distributed or offered for distribution by a SAG
Entity (other than by virtue of its being licensed by SAGA under this
Agreement), or (v) which a SAG Entity has the right to distribute within the
Territory, at any time during the term of this Agreement; provided that computer
software that is or becomes a SAG Product solely because it is a Third Party
Product shall remain a SAG Product only for so long as SAG has the right to
grant SAGA rights hereunder with respect to such computer software. For purposes
of this Agreement, SAG computer software programs intended for use on different
platforms shall be deemed separate SAG Products. The SAG Products shall include,
but not be limited to, the products listed in Exhibit B to the Original
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Agreement and any Derivatives of those products.
1.26. "SAGA Product" means any presently existing or future computer
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software, including, but not limited to, computer programs, parts thereof,
documentation therefor and related materials, (i) that a SAGA Entity develops or
has developed for it, whether through employees or independent contractors and
whether alone or with others, (ii) in which a SAGA Entity owns or acquires
proprietary or license rights (other than under this Agreement), (iii) announced
as a product of a SAGA Entity (other than by virtue of its being licensed by SAG
under this Agreement), (iv) distributed or offered for distribution by a SAGA
Entity (other than by virtue of its being licensed by SAG under this Agreement),
or (v) which a SAGA Entity has the right to distribute outside the Territory, at
any time during the term of this Agreement; provided that computer software that
is or becomes a SAGA Product solely because it is a Third
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Party Product shall remain a SAGA Product only for so long as SAGA has the right
to grant SAG rights hereunder with respect to such computer software. For
purposes of this Agreement, SAGA computer software programs intended for use on
different platforms shall be deemed separate SAGA Products. The SAGA Products
shall include, but not be limited to, the products listed in Exhibit C to the
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Original Agreement and any Derivatives of those products.
1.27. "SAG Entity" means SAG, a successor to SAG, or any Affiliate of
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SAG or any successor to any such Affiliate.
1.28. "SAGA Entity" means SAGA, a successor to SAGA, or any Affiliate
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of SAGA or any successor to any such Affiliate.
1.29. "Second Level Support" means any technical support given by SAG
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or SAGA in response to an End User's request for Maintenance, which technical
support reasonably requires access to or use of the Source Code for the relevant
Licensed Products, but which is not Third Level Support.
1.30. "Source Code" means the human readable computer programming
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language code related to a Product.
1.31. "Tamino Product" means SAG's Tamino Product and any Derivatives
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thereof.
1.32. "Technical Materials" means all of the Source Code, Object Code,
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user documentation and training materials for a Licensed Product, and any other
technical documentation prepared by or available to the Originating Party, or
any Affiliate of or successor to the Originating Party, in the normal course of
its operations related to the relevant Licensed Product, including, but not
limited to, flow diagrams, program design documents, programmer work papers,
descriptions of data structures, programming conventions and standards.
1.33. "Territory" means (i) the geographical area within the western
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hemisphere that is contained within the boundaries of 30 degrees W longitude
through 170 degrees W longitude, excluding Greenland, (ii) the additional
countries of Japan and Israel, and (iii) any additional islands in the Pacific
that have installations funded by the U.S. government.
1.34. "Third Level Support" means any technical support given by SAG or
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SAGA in response to an End User's request for Maintenance, which technical
support reasonably requires the involvement of the research and development
staff of the Originating Party.
1.35. "Third Party Product" means a Product developed by or for a third
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party other than a party's Affiliate that qualifies as a Product solely by
virtue of a limited license or distributorship granted to a SAG Entity or SAGA
Entity, whether on an exclusive or nonexclusive basis.
1.36. "U.S. Territory" means all fifty of the United States of America,
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Canada and Mexico.
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2. Rights Granted with Respect to Products
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2.1. SAG hereby grants to SAGA a perpetual, irrevocable, exclusive
license under all of SAG's patents, copyrights, trade secrets and other
proprietary and license rights to (i) reproduce, distribute, perform, display,
transmit and otherwise use all SAG Products within the Non-U.S. Territory, (ii)
adapt SAG Products in Object Code form only, within the Non-U.S. Territory,
(iii) provide Maintenance for SAG Products to End Users within the Non-U.S.
Territory, and (iv) authorize others to do the same.
2.2. SAG hereby grants to SAGA a perpetual, irrevocable, non-exclusive
license under all of SAG's patents, copyrights, trade secrets and other
proprietary and license rights to (i) reproduce, distribute, perform, display,
transmit and otherwise use all Core SAG Products and the Entire-X Product within
the U.S. Territory, (ii) adapt Core SAG Products and the Entire-X Product in
Object Code form only, within the U.S. Territory, (iii) provide Maintenance for
Core SAG Products and the Entire-X Product to End Users within the U.S.
Territory, and (iv) authorize others to do the same.
2.3. SAG hereby grants to SAGA a perpetual, irrevocable, exclusive
license under all of SAG's patents, copyrights, trade secrets and other
proprietary and license rights to (i) reproduce, distribute, perform, display,
transmit and otherwise use the Core SAG Products to or for Existing SAGA
Customers within the U.S. Territory, (ii) adapt Core SAG Products in Object Code
form only, for Existing SAGA Customers within the U.S. Territory, (iii) provide
Maintenance for Core SAG Products to Existing SAGA Customers within the U.S.
Territory, and (iv) authorize others to do the same.
2.4. SAG hereby grants to SAGA an irrevocable, exclusive license under
all of SAG's patents, copyrights, trade secrets and other proprietary and
license rights to (i) reproduce, distribute, perform, display, transmit and
otherwise use the Entire-X Product to or for Existing SAGA Customers within the
U.S. Territory, (ii) adapt the Entire-X Product in Object Code form only, for
Existing SAGA Customers within the U.S. Territory, (iii) provide Maintenance for
the Entire-X Product to Existing SAGA Customers within the U.S. Territory, and
(iv) authorize others to do the same. The exclusive license granted under this
Section 2.4 will terminate on the first to occur of (A) June 30, 2000 or (B) the
thirtieth (30/th/) day following the last day of the calendar quarter in which
SAGA pays SAG royalties less than $750,000 (but such termination will not affect
SAGA's non-exclusive license rights with respect to the Entire-X Product under
Section 2.2).
2.5. SAG hereby grants to SAGA an irrevocable, perpetual, non-
exclusive license under all of SAG's patents, copyrights, trade secrets and
other proprietary and license rights to (i) reproduce, distribute, perform,
display, transmit and otherwise use the Bolero Product, the Tamino Product and
Future SAG DBMS and Software Development Tools to or for
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Existing SAGA Customers within the U.S. Territory, (ii) adapt the Bolero
Product, the Tamino Product and Future SAG DBMS and Software Development Tools
in Object Code form only, for Existing SAGA Customers within the U.S. Territory,
(iii) provide Maintenance for the Bolero Product, the Tamino Product and Future
SAG DBMS and Software Development Tools to Existing SAGA Customers within the
U.S. Territory, and (iv) authorize others to do the same.
2.6. SAG hereby grants to SAGA an irrevocable, non-exclusive license
under all of SAG's patents, copyrights, trade secrets and other proprietary and
license rights to (i) reproduce, distribute, perform, display, transmit and
otherwise use the Additional SAG Products to or for Existing SAGA Customers
within the U.S. Territory, (ii) adapt the Additional SAG Products, in Object
Code form only, for Existing SAGA Customers within the U.S. Territory, (iii)
provide Maintenance for the Additional SAG Products to Existing SAGA Customers
within the U.S. Territory, and (iv) authorize others to do the same. SAGA's non-
exclusive license with respect to an Additional SAG Product under this Section
2.6 will terminate upon expiration of the Exclusivity Period, except that (1)
the license rights granted under this Section 2.6 with respect to that product
will survive expiration of the Exclusivity Period and will continue for so long
as SAGA's annual net revenues with respect to such product (including both
license and Maintenance revenues) represent at least 15% of the aggregate annual
worldwide net revenue earned by SAG (excluding any amounts payable by SAGA to
SAG under this Agreement) and SAGA with respect to such product (including both
license and Maintenance revenues), and (2) with respect to any copies of an
Additional SAG Product distributed by SAGA pursuant to this Section 2.6 (the
"Installed Copies"), SAGA will have an irrevocable, perpetual, non-exclusive
license under all of SAG's patents, copyrights, trade secrets and other
proprietary and license rights to (A) adapt the Installed Copies, in Object Code
form only, (B) provide Maintenance for the Installed Copies, and (C) authorize
others to do the same.
2.7. At any time that SAGA has an exclusive right to market and
license any class or type of SAG Product (as applicable at any time, an
Exclusive SAG Product") to any customer or type or class of customer (as
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applicable at any time, an "Exclusive Customer") within any geographic area (as
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applicable at any time, an "Exclusive Territory"), SAG may not, (nor may it
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authorize any third party to) directly or indirectly sell, license, market,
distribute, or otherwise provide to such Exclusive Customers within such
Exclusive Territory any such Exclusive SAG Product or any Derivative thereof, or
any components, technologies, processes or elements contained within any such
Exclusive SAG Product, whether independently or embedded in other Products or
materials. SAG expressly retains all rights not granted to SAGA under this
Agreement with respect to the SAG Products, both within and outside of the
Territory.
2.8. SAGA hereby grants to SAG a perpetual, irrevocable, non-exclusive
license under all of SAGA's patents, copyrights, trade secrets and other
proprietary and license rights to (i) reproduce, distribute, perform, display,
transmit and otherwise use the Construct Product outside the Territory, (ii)
adapt the Construct Product in Object Code form only, outside the Territory,
(iii) provide Maintenance for the Construct Product to End Users outside the
Territory, and (iv) authorize others to do the same. SAGA expressly retains all
rights not granted to SAG under this Agreement with respect to the SAGA
Products, both within and outside of the Territory; it being understood and
agreed that SAGA is not granting SAG any rights with respect
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to SagaVista or products acquired from Blue Lobster and Derivatives thereof,
anywhere in the world.
2.9. When SAG or its Affiliate acquires from a third party a license
of distributorship with respect to computer software that thereby becomes an
Additional SAG Product or Future SAG DBMS or Software Development Tool, then,
notwithstanding the other provisions of this Agreement, SAGA's rights hereunder
with respect to such Additional SAG Product or Future SAG DBMS or Software
Development Tool shall be subject to the terms of the agreement between SAG or
its Affiliate and a third party pursuant to which the Additional SAG Product or
Future SAG DBMS or Software Development Tool becomes subject to this Agreement.
SAG shall permit SAGA to have the full rights contemplated by Sections 2.1 and
2.5 or 2.6, as the case may be. SAGA shall have the rights granted in Sections
2.1 and 2.5 or 2.6, as the case may be, and have the obligations arising under
this Agreement, with respect to such Additional SAG Product or Future SAG DBMS
or Software Development Tool to the maximum extent consistent with SAG's or its
Affiliate's agreements with the third party. Thus, for example, and not as a
limitation, if SAG is a nonexclusive distributor of such Additional SAG Product,
SAGA shall, to the maximum extent consistent with the agreement appointing SAG
as a distributor, have a subdistributorship in the relevant geographic area. In
any such case, SAG shall inform SAGA of its rights and obligations as a
sublicensee or subdistributor under the agreements between SAG or its Affiliate
and the third party, and SAGA shall comply with such obligations.
2.10. A Distributing Party shall distribute, and cause its Distributors
to distribute, the Licensed Products only pursuant to written End User
Agreements that contain provisions protecting the intellectual property rights
of the Originating Party that conform to local law and reasonable and customary
business practice.
2.11. A Distributing Party shall distribute, and cause its Distributors
to distribute, Licensed Products in Object Code form only, except to the extent
that the Originating Party distributes, or otherwise permits the distribution
of, the Source Code for a Licensed Product to third parties.
2.12. Each party, in its capacity as Distributing Party, may, effective
upon the giving of written notice to the Originating Party, relinquish and
terminate (a) its exclusive rights with respect to any Licensed Products as to
which it has exclusive rights, in which case such exclusive rights shall
terminate and non-exclusive rights shall continue, or (b) its non-exclusive
rights with respect to any Licensed Products, in which case all such license
rights to such Licensed Products shall terminate.
3. Cooperation and Technical Assistance
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3.1. Each party, in its capacity as an Originating Party, shall
provide the Distributing Party prompt, full and unfettered access to Technical
Materials in its possession with respect to its Licensed Products, including
copies of the complete Source Code and Object Code for such Licensed Products, a
reasonable number of copies of any user documentation for such Licensed
Products, and significant existing Technical Materials relating to such Licensed
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Products, except that in the case of a Third Party Product, such items only
shall be provided to the extent legally permitted under any applicable agreement
between the Originating Party and the third party proprietor of the Third Party
Product. Thereafter, an Originating Party shall provide such Technical Materials
relating to a Product to the Distributing Party when requested by the
Distributing Party or when such Originating Party determines that doing so would
materially enhance the Distributing Party's ability to develop, market,
distribute or provide Maintenance, except that in the case of a Third Party
Product, such Technical Materials only shall be provided to the extent legally
permitted under any applicable agreement between the Originating Party and the
third party proprietor of the Third Party Product. The Originating Party shall
make such materials available initially, when a Licensed Product initially
becomes available, and from time to time thereafter at the Distributing Party's
request.
3.2. Each party, in its capacity as an Originating Party, hereby
grants the Distributing Party a license (co-extensive and co-terminous with such
Distributing Party's license rights to the applicable Licensed Product) under
all of the licensor's patents, copyrights, trade secrets and other proprietary
rights to (i) reproduce, distribute, perform, display, transmit and otherwise
use the Technical Materials applicable to such Licensed Products (in any case,
the "Licensed Technical Materials"), (ii) adapt the Licensed Technical
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Materials other than the Source Code for Licensed Products, and (iii) authorize
others to do the same to the extent that doing so is reasonably required in the
performance of their work on behalf of the Distributing Party. A Distributing
Party may use the Licensed Technical Materials only for lawful purposes and to
the extent of its license rights to the applicable Licensed Product for the
purpose of developing markets for such Licensed Product and Maintenance. Such
use may include, but is not limited to, development of new interfaces and add-on
Licensed Products; adding ports to other platforms; and making performance
improvements. Each party shall maintain the confidentiality of Licensed
Technical Materials of the other party as provided in Article 10. Each party
shall take reasonable and customary measures to assure that its employees,
agents, independent contractors and Distributors appropriately protect Licensed
Technical Materials of the other party, which in no event shall be less rigorous
than the measures that such first party takes to protect its own similar
Technical Materials.
3.3. To provide accountability for Licensed Technical Materials that
either party deems particularly sensitive, but without affecting the parties'
rights and obligations with respect to such Licensed Technical Materials, (i) a
party providing Licensed Technical Materials to the other party may require the
other party to sign a receipt therefor in the form of Exhibit D, and (ii) a
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party receiving Licensed Technical Materials from the other party may require
the other party to sign a transmittal therefor in the form of Exhibit E.
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3.4. Each Distributing Party shall provide First Level Support and
Second Level Support for all Licensed Products installed or distributed by it.
Each Distributing Party shall be deemed to have a non-exclusive license to use
the Source Code and Technical Materials, in its possession on the Effective Date
to provide such First Level Support and Second Level Support to its customers as
of the Effective Date. Each Originating Party shall provide Third Level Support
for its Licensed Products anywhere in the world. The parties shall use their
best efforts to coordinate the provision of Third Level Support as described in
the "Escalation Management Process Description" on Exhibit F, and as they have
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done prior to the Effective
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Date or otherwise agree. Each Originating Party will maintain a program to
assist and support the Distributing Party in providing Maintenance for the
Originating Party's Licensed Products in the geographic area where the
Distributing Party has a license to such Licensed Products, including the
provision of upgrades, patches, new versions, technical support and technical
documentation. Each Originating Party shall ensure that such program is at least
favorable to the Distributing Party as any other support program the Originating
Party may provide to other distributors, OEMs, VARs or resellers for the
applicable Licensed Programs.
3.5. Each Originating Party shall provide to the Distributing Party
under the terms of this Agreement "Year 2000 Compliant" versions of the SAG
Products (in the case of SAG) or of the Construct Product (in the case of SAGA)
or of the Licensed Products, as applicable, that have been or will be supported
with Maintenance at any time during the period commencing January 1, 1999 and
ending December 31, 2000. For the purpose of this Section 3.5, a "Year 2000
Compliant" product is capable of accurately processing, providing and receiving
data from, into and between the twentieth and the twenty-first centuries, and
will correctly create, store, process and output information related to or
including dates on or after January 1, 2000, provided that the product in
question is used in accordance with any applicable documentation and provided
further that all other products, including hardware and software, used in
combination with the product in question properly exchange date data with such
product.
4. Marketing of Licensed Products
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4.1. SAG hereby relinquishes and releases any claim it may have to any
trademark or trade name, together with any related goodwill, associated with a
SAGA Product that SAGA has announced or is marketing or advertising as of the
Effective Date. SAGA hereby relinquishes and releases any claim it may have to
any trademark or trade name, together with any related goodwill, associated with
a SAG Product that SAG has announced or is marketing or advertising as of the
Effective Date. Each party will execute such assignments and similar documents
as may be necessary to transfer any trademark registration in a manner
consistent with the foregoing.
4.2. Each party, in its capacity as an Originating Party, grants the
Distributing Party a license (co-extensive and co-terminous with such
Distributing Party's license rights to the applicable Licensed Product) to use
the Originating Party's trademarks and trade names associated with their
applicable Licensed Products.
4.3. SAG agrees and acknowledges that it will not use, create, acquire
or at any time own within the Territory an Affiliate with, the name "Software AG
Americas," "Software AG North America" or any other name confusingly similar to
any name formerly used by SAGA or SAGSI. SAG will have the right to use the
trademark "Software AG" within the Territory in a manner that avoids confusion
with SAGA. In the event of any such confusion, the parties will cooperate in
order to eliminate promptly that confusion.
4.4. Unless the parties agree otherwise in writing, each party shall
structure its agreements appointing Distributors and otherwise conduct its
business so that (i) for each End User license for a Licensed Product granted by
a Distributor, a license fee is paid by the End
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User to the Distributor and an amount is paid by the Distributor to the
party that has appointed the Distributor, (ii) license fees and other amounts
payable are fairly allocated to Licensed Products and there is no other unfair
discrimination between SAG Products and SAGA Products.
4.5. Each party's use of trademarks specifically associated with
specific Licensed Products of the other party (a "Product Xxxx"; for example,
the "Construct" xxxx, in the case of SAGA, and the "Tamino", "Bolero", "Entire-
X" marks, in the case of SAG), in connection with the respective Licensed
Products shall be (i) consistent with the high quality image of the parties so
as to enhance the respective Product Xxxx and the goodwill relating thereto, and
(ii) generally as used prior to the Effective Date or otherwise agreed. Each
party shall identify a Product Xxxx as a trademark, including, but not limited
to, through appropriate use of the symbols "(TM)" and "(R)" or other means
appropriate under applicable law. Each party acknowledges the ownership and
validity of the Product Marks of the other party and shall do nothing
inconsistent with such validity and ownership. All uses of the Product Marks
shall inure to the benefit of the owner of the respective Product Xxxx. Each
party shall, and shall require its Distributors to, employ appropriate quality
control standards and cooperate with the Originating Party's efforts to verify
that it does so.
4.6. Each party may from time to time develop advertising or other
promotional materials relating to Licensed Products (collectively, "Advertising
-----------
Materials"). If so, it shall provide the other party a copy in printed and
---------
electronic format of any Advertising Materials that it distributes. Each party
hereby grants the other party a perpetual, irrevocable license under all of such
party's copyrights to (i) reproduce, adapt, distribute, perform, display,
transmit and otherwise use such Advertising Materials, and (ii) authorize others
to do the same. A party distributing Advertising Materials in a particular
jurisdiction shall be solely responsible for the contents of such materials and
for compliance with requirements of local law in their distribution.
5. User Documentation and Other End User Materials
-----------------------------------------------
5.1. Each Originating Party promptly shall provide the Distributing
Party a copy in printed and electronic format of its standard user documentation
or other materials for each Licensed Product.
5.2. Each Originating Party shall make available for purchase by the
Distributing Party additional copies of its standard user documentation or other
materials for its Licensed Products as well as any available Advertising
Materials and available software media and "PC-Kits." All such materials shall
be provided F.O.B. place of shipment, at production cost, excluding freight,
insurance, import duties, sales tax, VAT and other taxes, in accordance with
price lists provided by each party to the other from time to time.
6. Payments
--------
11
6.1. As consideration for the execution and delivery of this
Agreement, each party hereby releases and covenants not to xxx the other party
for any breach of the Original Agreement that could be alleged by that party
based upon facts or circumstances known to the party prior to the Effective
Date.
6.2.
6.2.1. From the Effective Date through December 31, 2017, and
thereafter unless the parties agree otherwise in writing, (i) SAGA shall
pay SAG twenty-four percent (24%) of SAGA's "Net Revenues" (as defined
below) from the distribution of SAG Products and the provision of
Maintenance for SAG Products within the Territory, and (ii) SAG shall pay
SAGA twenty-four percent (24%) of SAG's Net Revenues from the distribution
of SAGA Products and the provision of Maintenance for SAGA Product outside
the Territory.
For the purpose of this Section 6.2, "Net Revenues" shall be computed as
follows:
Net Revenues = Amounts Invoiced
- External Distribution Charges
- Third Party Obligations
- Japan Adjustment
Where:
"Amounts Invoiced" are the gross amounts invoiced by a party or one of its
Distributors (and any additional amounts not invoiced but recognized as
revenue in accordance with the relevant entity's revenue recognition
policies) for the distribution of Licensed Products of the other party and
the provision of Maintenance for such Licensed Products to End Users (less
applicable interest income and all sales, use, VAT and other taxes), and
other revenues, such as amounts recovered by a party for infringement of
proprietary rights licensed to that party hereunder (less attorneys' fees and
other expenses incurred to recover such amounts).
"External Distribution Charges" are Distribution Charges for the distribution
of Licensed Products of the other Party or the enrollment of End Users for
Maintenance for such Licensed Products that are payable to or retained by a
third party that is not an Affiliate of a party.
"Third Party Obligations" are amounts due to a third party other than an
Affiliate of a party pursuant to an agreement for the acquisition, or for the
right to distribute the relevant Licensed Product. (The Originating Party
shall notify the Distributing Party when there are Third Party Obligations
for a Licensed Product, and the Distributing Party promptly shall remit such
amounts to the Originating Party for disbursement to the third party.)
"Japan Adjustment" equals 76% of the aggregate amounts owed or payable to a
party with respect to the distribution of Adabas C on Unix, Windows/NT and
VAX platforms, and the provision of Maintenance therefor, in Japan prior to
October 1, 2006. This adjustment is
12
only applicable to the computation of Net Revenues owed by SAGA to SAG.
6.2.2. If SAGA facilitates an agreement with an OEM Partner for any
SAG Product within the Territory, SAG will pay SAGA 24% of SAG's revenues
from such agreement with respect to distribution of SAG Products and
provision of Maintenance for SAG Products within the Territory. If SAG
facilitates an agreement with an OEM Partner for the Construct Product
outside the Territory, SAGA will pay SAG 24% of SAGA's revenues from such
agreement with respect to distribution of the Construct Product and
provision of Maintenance for the Construct Product outside the Territory.
The provisions of this Section 6.2.2 are not intended to grant any rights
to either party to enter into any OEM Partner arrangements within or
outside of the Territory, nor are they intended to restrict any rights
otherwise granted or retained by either party with respect to the SAG
Products and SAGA Products, respectively, under Article 2 of this
Agreement. This Section 6.2.2 merely provides for the allocation of revenue
between SAG and SAGA with respect to an agreement with an OEM Partner that
may be entered into, consistent with the respective rights and obligations
of the parties under Article 2.
6.2.3. If during any year SAGA grants a higher discount for any
Additional SAG Products, Future SAG DBMS or Software Development Tools, the
Bolero Product or the Tamino Product than the average discount for the Core
SAG Products during that year, then SAGA shall pay to SAG royalties for the
Additional SAG Product, Future SAG DBMS or Software Development Tool, the
Bolero Product or the Tamino Product, calculated on the basis of the
average discount granted for the Core SAG Products in such year.
6.3. Each Distributing Party shall report to the Originating Party
all its relevant Amounts Invoiced, External Distribution Charges and Third Party
Obligations in detail within sixty (60) days after the end of the month in which
they occur, which report shall be substantially in the form that SAGA has
provided to SAG prior to the Effective Date. Within sixty days following the end
of each year, SAGA will furnish SAG with a report showing the average discounts
granted by SAGA for the Core SAG Products, Additional SAG Products, Future SAG
DBMS or Software Development Tools, the Bolero Product and the Tamino Product
during that year. Based upon each such report, the Originating Party may invoice
the Distributing Party for the applicable payment under Section 6.2.
6.4. From time to time, a Distributing Party may fail to collect
from an End User or Distributor amounts for which payments have been made under
Section 6.2, including, but not limited to, as a result of product problems,
warranty claims, bad debt or the cancellation or termination of an End User
Agreement (it being understood that amounts collected from an End User or
Distributor and then credited back to the End User or Distributor, such as when
an End User "trades in" a Licensed Product to obtain a different Licensed
Product, are not amounts that the Distributing Party has failed to collect from
the End User or Distributor). If such failure continues for one hundred and
twenty (120) days after such amounts accrue as Amounts Invoiced, the amounts
payable under this Agreement shall be adjusted to reflect such failure, and the
Distributing Party shall receive an appropriate credit for any Amounts Invoiced
with respect to which payment has not been received by the Distributing Party.
If the Distributing Party
13
thereafter receives a payment for which it has received such a credit, such
payment shall be treated as Amounts Invoiced in the month in which payment is
received.
6.5. For the calendar years 1999 through and including 2005, SAGA
shall pay to SAG a minimum annual aggregate payment under this Agreement as
specified below:
For each calendar year indicated below: The minimum royalty amount is:
---------------------------------------------------------------------------------
1999 $ 21,000,000
---------------------------------------------------------------------------------
2000 $ 23,000,000
---------------------------------------------------------------------------------
2001 $ 23,000,000
---------------------------------------------------------------------------------
2002 $ 23,000,000
---------------------------------------------------------------------------------
2003 $ 21,000,000
---------------------------------------------------------------------------------
2004 $ 20,000,000
---------------------------------------------------------------------------------
2005 $ 17,000,000
---------------------------------------------------------------------------------
provided that if SAG's Worldwide Revenues in any calendar year during the
Exclusivity Period are less than SAG's published 1998 Worldwide Revenues, then
such minimum annual aggregate payment shall be reduced proportionately for that
year and each subsequent year through the end of the Exclusivity Period. For
purposes of this Section 6.5, "Worldwide Revenues" for any year shall consist of
revenues derived during such year by SAG from the distribution of SAG Products
and Maintenance for SAG Products and shall be determined on a basis consistent
with past practice, except that such revenues shall be calculated based on the
currency exchange rates utilized to determine SAG's published 1998 Worldwide
Revenues. Should the amounts payable to SAG under Section 6.2 for any year be
less than the minimum annual aggregate payment under this Section 6.5 for such
year, SAG may invoice SAGA for the difference when SAG invoices SAGA for the
payment under Section 6.2 for December of such year.
6.6. All payments due to either party under this Agreement shall be
due thirty (30) days after the date of the applicable invoice, or if such due
date is a Saturday, Sunday or legal holiday observed by either party, the first
business day thereafter.
6.7. If any payment due hereunder is received after the date when
due, such payment will accrue interest at a rate equal to the currency-related
FIBOR rate available on the due date, plus three percent (3%).
7. Records, Reports and Audits
---------------------------
7.1. Each party shall prepare and maintain complete and accurate
books and records documenting its distribution of Licensed Products and
provision of Maintenance pursuant to this Agreement and its receipt of all fees
and other revenues related thereto. Each party shall maintain such books and
records for a minimum of three (3) years from the date of distribution of
Licensed Products or provision of Maintenance therefor, respectively.
14
7.2. During the term of this Agreement and for one (1) year
thereafter, each party shall have the right, one time during each calendar year,
at its expense and upon reasonable notice, to examine or have examined by its
authorized representative, the other party's books and records relating to the
immediately preceding calendar year in order to determine or verify performance
under this Agreement, the amounts due hereunder and the accuracy of any reports
furnished hereunder.
8. Warranties and Limitation of Liability
--------------------------------------
8.1. Each party represents and warrants that it has the right to
enter into this Agreement and to grant the other party the rights granted
herein.
8.2. Each party, in its capacity as an Originating Party,
represents and warrants that its Licensed Products will conform with the related
Licensed Product documentation it provides. An Originating Party's sole
obligation with respect to any Licensed Product or documentation errors will be
to use its best efforts to correct, at its expense, any error about which it
receives written notice. The warranty and obligations of this Section 8.2 are
contingent upon proper use of a Licensed Product and shall not apply to the
extent that any failure is caused by (i) modification of a Licensed Product by
the other party or by any third party without prior written approval or (ii) use
of a Licensed Product in a hardware or software environment other than the
environment in which the Licensed Product is intended to be used, as described
in the Licensed Product's documentation at the time of such use.
8.3. Each Originating Party represents and warrants that its
Licensed Products do not contain any virus, Trojan horse, worm, or other
software designed to permit unauthorized access to, or improperly to modify,
delete, damage, deactivate or disable, any software, hardware, or data.
8.4. THE FOREGOING EXPRESS WARRANTIES ARE IN LIEU OF ANY AND ALL
OTHER WARRANTIES. EACH ORIGINATING PARTY, WITH RESPECT TO ITS LICENSED PRODUCTS,
DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8.5. No party hereto shall be liable in any event for any damages
incurred by the other party or by any other person or entity as a result of any
misuse of any of the Licensed Products, even if such first party had been
advised of the possibility of such damages. The parties shall not be liable for
any consequential, special, or incidental damages, lost profits, or for any
claim or demand against them by any other person or entity, except as provided
in Article 9 with respect to claims for indemnification thereunder.
9. Indemnities
-----------
9.1. Subject to Section 9.4, the Originating Party shall defend,
indemnify and hold harmless the Distributing Party, its Affiliates and their
respective employees, agents,
15
independent contractors, Distributors and End Users from and against any claims,
losses, damages, liabilities and costs, including, but not limited to,
reasonable attorneys' fees ("Claims") relating to or resulting from infringement
------
of any third party's patent, copyright or other proprietary rights by the
Originating Party's Products or the distribution or use thereof, except to the
extent that a Claim is based on modification of a Licensed Product without
authorization of the Originating Party. In the event an infringement is found,
the Originating Party shall use its best efforts promptly to obtain a license
for the continued distribution and use of the affected Licensed Products,
replace the affected Licensed Products with substantially equivalent
noninfringing Licensed Products or modify the affected Licensed Products so that
they are noninfringing.
9.2. Subject to Section 9.4, the Distributing Party shall defend,
indemnify and hold harmless the Originating Party, its Affiliates and their
respective employees and agents from and against any Claims relating to or
resulting from modification of the Originating Party's Product by the
Distributing Party.
9.3. Subject to Section 9.4, each party shall defend, indemnify and
hold harmless the other party, its Affiliates and their respective employees and
agents from and against any Claims relating to or resulting from (i) the
indemnitor's breach of this Agreement or an End User Agreement or (ii) the
negligence of the indemnitor, its Affiliates and their respective employees and
agents, including, but not limited to, Claims relating to or resulting from
inadequate installation of Licensed Products and inadequate Maintenance.
9.4. Each of the foregoing indemnities is subject to the following
conditions:
9.4.1. An indemnified person or entity promptly shall notify the
indemnifying party in writing of any Claim (provided that the failure of an
indemnified person or entity to provide prompt notice shall not relieve the
indemnifying party of its obligations under this Article 9, except to the
extent that the indemnifying party is actually prejudiced by such failure);
9.4.2. The indemnifying party shall have the right, if it so chooses,
to control and direct, at its expense and through counsel of its choosing,
the investigation and defense of any third party Claim, but may compromise
or settle the same only with the consent of the indemnified person or
entity, which consent shall not be unreasonably withheld. The indemnified
person or entity shall cooperate fully with the indemnifying party in the
defense of any such Claim.
9.5. Upon receipt of a notice of a Claim for indemnification, the
indemnifying party shall promptly pay to the indemnified person or entity the
amount of such Claim in accordance with and subject to the provisions of this
Article 9, provided, however, that no such payment shall be due during any
period in which the indemnifying party is contesting in good faith either its
obligation to make such indemnification or the amount of the Claim that is
payable.
10. Confidentiality
---------------
16
10.1. For the purpose of this Article 10, the term "Confidential
------------
Information" means any information used in or relating to the business of one
-----------
party or its Affiliates (collectively, the "Disclosing Party"), including, but
----------------
not limited to, the Disclosing Party's product plans, Technical Materials and
financial and customer information, that the Disclosing Party maintains in
confidence, and all tangible embodiments of such information, that is received
by the other party or its Affiliates (the "Receiving Party"), or to which the
---------------
Receiving Party has access, in any form; provided that "Confidential
------------
Information" does not include any information that the Receiving Party can
-----------
demonstrate (i) is or becomes publicly known through no fault of the Receiving
Party; (ii) is developed independently by the Receiving Party; or (iii) is
rightfully obtained by the Receiving Party from a third party not obligated to
preserve its confidentiality who did not receive the material or information
directly or indirectly from the Disclosing Party.
10.2. A Receiving Party shall not use the Disclosing Party's
Confidential Information for any purpose other than in accordance with this
Agreement and shall not disclose Confidential Information to any person or
entity other than its employees and agents, and its independent contractors and
Distributors, which persons and entities have a need to know such Confidential
Information and each of which is subject to a nondisclosure obligation
comparable in scope to this Article 10.
10.3. Notwithstanding Section 10.2, a Receiving Party may disclose
Confidential Information to the extent required by a court or other governmental
authority, provided that (i) the Receiving Party gives the Disclosing Party
reasonable notice of the disclosure, (ii) the Receiving Party uses reasonable
efforts to resist disclosing the Confidential Information, and (iii) upon
request of the Disclosing Party, the Receiving Party cooperates with the
Disclosing Party to obtain a protective order or otherwise limit the disclosure.
10.4. The parties acknowledge that either party's breach of Section
10.2 would cause the other party irreparable injury for which it would not have
an adequate remedy at law. In the event of a breach, the non-breaching party
shall be entitled to injunctive relief in addition to any other remedies it may
have at law or in equity, without having to prove any actual damages sustained.
11. Certain Additional Matters
--------------------------
11.1. Except as prohibited by this Agreement, this Agreement is not
intended to restrict either party's right to engage in any business activity,
pursue investments in or acquisitions of companies, in whole or in part, in any
territory in the world.
11.2. During the term of this Agreement, before either party, in its
capacity as an Originating Party, or its Affiliates may assign, grant any
exclusive license with respect to, or otherwise transfer (each such act a
"Transfer"), proprietary rights with respect to one of its Licensed Products,
--------
within the geographic area in which the Distributing Party has a license to such
Licensed Products, the Distributing Party shall be offered the following rights
with respect to such Licensed Product:
17
11.2.1. The Originating Party shall first deliver a written notice to
the Distributing Party stating (i) that the Originating Party desires to
make a Transfer of such proprietary rights, (ii) the nature of the proposed
Transfer and (iii) the price and other material terms of the proposed
Transfer. Such notice shall be accompanied by a certificate of the
Originating Party certifying that it has received from a third party a bona
fide offer to acquire such proprietary rights at such price and on such
terms as are set forth in the notice and shall identify such third party.
11.2.2. Within thirty (30) days after receipt of a notice as
described in Paragraph 11.2.1, the Distributing Party may elect, by
delivering to the Originating Party a written notice of its election, to
acquire the proprietary rights with respect to the Licensed Product on the
same terms and conditions specified in such notice. In the event that the
Distribution Party does so, the parties shall consummate the Transfer
within ninety (90) days after the date that the other party receives the
notice described in Paragraph 11.2.1.
11.2.3. To the extent the Distributing Party does not exercise its
rights under Paragraph 11.2.2 within the time period specified therein, the
Originating Party may Transfer such proprietary rights to the third party
specified in the notice described in Paragraph 11.2.1 at such price and on
such terms as are set forth in such notice, provided that (i) such Transfer
is consummated within one hundred twenty (120) days of the date of delivery
of such notice and (ii) prior to the Transfer, such third party agrees in
writing, in a form satisfactory to the Distributing Party and as a
condition of the Transfer, that such third party shall assume all of the
obligations of the Originating Party under this Agreement relevant to the
proprietary rights transferred and the Licensed Products embodying such
proprietary rights, and that such proprietary rights shall be subject to
the rights of the Distributing Party under this Agreement.
11.3. Unless the parties agree otherwise in writing, if any of SAG, SAGA
or SAGSI is subject to a Change of Control, the parties shall cooperate to
identify and document all of the then existing Licensed Products of SAG (in the
case of a Change of Control of SAG) or of SAGA (in the case of Change of Control
of either SAGA or SAGSI)as of the date of the Change of Control, including
Licensed Products at all stages of development, whether or not announced to the
public as available for distribution. Unless the parties agree otherwise in
writing, the party that is the subject of the Change of Control shall not
consummate the Change of Control or permit the Change of Control to be
consummated unless the successor of such party following the Change of Control
has agreed in writing (i) to be bound by all of the terms of this Agreement
relevant to such existing Licensed Products to the same extent as the party that
is the subject of the Change of Control, (ii) that all of the terms of this
Agreement relevant to such existing Licensed Products shall apply to future
Licensed Products of such successor derived in any material respect from such
Licensed Products, and (iii) that SAG, in the case of a Change of Control of
SAGA or SAGSI, and SAGA and SAGSI, in the case of a Change of Control of SAG,
are intended third party beneficiaries of such agreements required by clauses
(i) and (ii).
11.4. If SAGA or SAGSI is subject to a Change of Control, SAG will have
the right to sell any or all of its shares held in SAGSI to the person who
caused the Change of
18
Control (the "Successor") at a price equal to the highest price at which
Successor purchased SAGSI shares in the transaction resulting in the Change of
Control.
11.5. In addition to the parties' rights and obligations under
Sections 11.2 and 12.2, during the term of this Agreement, before SAG decides to
stop further enhancement or support of Adabas C for the Unix, Windows/NT or VAX
platforms, SAG shall notify SAGA in writing of the extent to which SAG is
considering doing so. Within thirty (30) days after receipt of such a notice
(the "Election Period"), SAGA may elect, by delivering to SAG a written notice
of its election, to continue such enhancement and support to the extent that SAG
is considering stopping it. If SAGA makes such an election, then the parties
promptly shall negotiate in good faith an arrangement whereby (i) the Licensed
Products for which SAG is considering stopping further enhancement or support
shall become SAGA Products for all purposes under this Agreement at no charge to
SAGA, and (ii) after the parties' agreement to such an arrangement, SAGA shall
bear the costs of ongoing enhancement and Third Level Support of such Licensed
Products. The parties shall structure such an arrangement so that it does not
constitute "SAG decid[ing] to stop further enhancement and support" of such
Licensed Products within the meaning of paragraph 4 of the letter dated October
2, 1996 from Xxxxx Xxxxxxx to Xxxxxxxx Xxxxx. SAG shall not decide to stop
further enhancement or support of Adabas C for the Unix, Windows/NT or VAX
platforms unless such Election Period has expired without such an election by
SAGA.
11.6. For a period of two (2) years following the Effective Date,
neither party nor any of its Affiliates, subcontractors, agents or sublicensees
shall, directly or indirectly, solicit, hire or induce the termination from
employment with the other party of any person who was employed by the other
party or any Affiliate of such party or induce such person to accept employment
other than with the other party or an Affiliate of such party, except for the
employees designated as "Designated Employees" as provided in the Administrative
Services Agreement between SAG and SAGA, as identified on Schedule 2.
----------
12. Term, Termination and Remedies
------------------------------
12.1. This Agreement shall be perpetual from the Effective Date
unless terminated by the written agreement of the parties. Notwithstanding
either party's breach of this Agreement, this Agreement shall not be terminable
other than by the written agreement of the parties. In the event of a breach,
the non-breaching party shall be entitled to money damages, specific performance
or other remedies available at law or in equity, but not to termination or
rescission of this Agreement.
12.2. In the event that either party (the "Non-performing Party")
--------------------
(i) fails materially to fulfill itsobligation under Section 3.4 to provide Third
LevelSupport for its LicensedProducts to End Users of either party, and fails to
remedy that breach within thirty (30) days after receiving written notice of
such breach from the other party or (ii) becomes insolvent or enters into
bankruptcy, liquidation, dissolution or proceedings of a similar nature, then
the other party (the "Performing Party") may elect in writing to assume
----------------
responsibility for providing Third Level Support to all or any of its End Users
of all or any of the Non-performing Party's Licensed Products. To the extent
that the Performing Party makes such an election, it thereafter
19
shall be excused from making any payment under Section 6.2 for the provision of
Maintenance for those Licensed Products to those End Users and for any
additional distributions of those Licensed Products and provision of Maintenance
therefor; the Non-performing Party thereafter shall be excused from any
obligations hereunder that are expressly assumed by the Performing Party.
Notwithstanding any assumption by the Performing Party of any responsibilities
hereunder, the Non-performing Party shall remain liable for any breach by it of
this Agreement. In the event that the Performing Party elects to assume
responsibility for providing Third Level Support with respect to any Licensed
Product of the Non-performing Party, the licenses granted by the Non-performing
Party to the Performing Party under Article 2 and Section 3.2 shall
automatically be expanded to include a perpetual, irrevocable (except by written
agreement of the parties), exclusive (except as provided in Article 2) license
to adapt such Licensed Product in Source Code form, including, but not limited
to, by developing modifications and enhancements to such Licensed Product.
13. Notices
-------
All notices or other communications which are required or permitted
hereunder shall be in writing and sufficient if delivered personally, by
facsimile or sent by overnight express or by registered or certified mail,
postage prepaid, addressed as follows:
If to SAG:
Software XX
Xxxxxxxxxxxxx 00, X-00000
Xxxxxxxxx, Xxxxxxx
Attention: President and CEO
Facsimile: 00-0000-000000
with a copy to:
Software XX
Xxxxxxxxxxxxx 00, X-00000
Xxxxxxxxx, Xxxxxxx
Attention: General Counsel
Facsimile: 00-0000-000000
20
If to SAGA:
SAGA SOFTWARE, Inc.
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: President and CEO
Facsimile: 000-000-0000
with a copy to:
SAGA SOFTWARE, Inc.
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: General Counsel
Facsimile: 000-000-0000
All such deliveries shall be deemed effective when received by the person
entitled to such receipt or when delivery has been attempted but refused by such
person. Any party may change the person or address to which such deliveries
shall be made with respect to such party by delivering notice thereof to the
other party hereto in accordance with this Article 13.
14. Miscellaneous
-------------
14.1. This Agreement is confidential, and neither party shall
disclose it without the prior written consent of the other party to any third
party, other than its attorneys, consultants, accountants, auditors and others
to whom a party has a bona fide business reason for disclosing the Agreement;
provided that each party may disclose this Agreement as may be required by law
or to enforce the provisions hereof.
14.2. To the extent that either party has copyright or other
proprietary rights with respect to a Product identified in Exhibit B or C as
being a Product of the other party, such first party hereby irrevocably assigns
to such other party its entire right, title and interest in and to such
proprietary rights.
14.3. Each party shall take such actions, and sign such documents,
as reasonably may be requested by the other party to obtain, confirm, maintain
or enforce the rights granted in this Agreement.
14.4. A party receiving an exclusive license hereunder shall have
the exclusive right to enforce any proprietary rights so licensed, either within
the Territory (in the case of SAGA) or outside the Territory (in the case of
SAG). If reasonably required to do so, the licensee may join the licensor as a
plaintiff.
14.5. The parties shall use the English language in exchanging all
documents and other information exchanged between them.
21
14.6. The provisions of this Agreement are severable, and the
unenforceability of any provision of this Agreement shall not affect the
enforceability of the remainder of this Agreement. The parties acknowledge that
it is their intention that if any provision of this Agreement is determined by a
court to be invalid, illegal or unenforceable as drafted, that provision should
be construed in a manner designed to effectuate the purpose of that provision to
the greatest extent possible under applicable law.
14.7. The rights and remedies provided in this Agreement are, to the
extent permitted by law, cumulative and not exclusive of any other right or
remedy now or hereafter available at law or in equity. Neither asserting a right
nor employing a remedy shall preclude the concurrent assertion of any other
right or employment of any other remedy, nor shall the failure to assert, or the
delay in asserting, any right or remedy constitute a waiver of that right or
remedy.
14.8. The rights of the parties under this Agreement are unique, and
the failure of a party to perform its obligations hereunder would irreparably
harm the other party. Accordingly, the parties shall, in addition to such other
remedies as may be available at law or in equity, have the right to enforce
their rights hereunder by actions for specific performance to the extent
permitted by law.
14.9. Except as specifically provided in this Agreement, no party
may assign any of its rights or delegate its obligations hereunder without the
written consent of the other party; provided that (1) a party may assign all of
its rights and delegate all of its obligations under this Agreement to an
Affiliate of that party without the consent of the other party, but such
assignment will not relieve the assigning party of any of its financial
obligations hereunder (and, in the case of an assignment by SAGA to an
Affiliate, SAGSI will guarantee the financial obligations of the assignor
hereunder) and (2) in the event of a Change of Control of a party, such party
may assign all of its rights and delegate all of its obligations under this
Agreement to the successor of such party following the Change of Control, if
such successor agrees in a writing in which the other party is expressly
identified as an intended third party beneficiary to assume all of the
obligations of such party under this Agreement. Any purported assignment or
delegation in violation of this Section 14.9 shall be void. This Agreement shall
be binding upon and inure to the benefit of the parties and their respective
successors, permitted assigns and legal representatives.
14.10. This Agreement may be modified or amended only by written
agreement of the parties.
14.11. The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the Commonwealth of Virginia
applicable to agreements made and entirely to be performed within such
jurisdiction. The party bringing any action under this Agreement shall only be
entitled to choose the federal or state courts in the Commonwealth of Virginia
as the venue for such action, and each party consents to the jurisdiction of the
court chosen in such manner for such action.
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14.12. This Agreement may be executed in any number of counterparts,
and each such counterpart shall be deemed to be an original instrument, but all
such counterparts together shall constitute but one agreement.
14.13. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all previous
agreements, written or oral, with respect to the subject matter hereof.
14.14. Each party will consult with the other party concerning their
respective initial press releases concerning the execution and contents of this
Agreement, and the parties will use good faith efforts to reach agreement
concerning such press releases.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Agreement to be executed as of the day and year first
above written.
Software AG
By: /s/ Xx. Xxxxx Xxxxxxx
---------------------------------------
Xx. Xxxxx Xxxxxxx
Chairman of the Board
and
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------------
Xxxxxx Xxxxxxxx
Board Member
SAGA SOFTWARE, Inc.
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxxx
President and Chief
Executive Officer
SAGA SYSTEMS, Inc.
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxxx
President and Chief
Executive Officer
[SAGA SYSTEMS, Inc. is made a party to this Agreement solely for
purposes of Sections 11.3, 11.4 and 14.9 hereof.]
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