Exhibit 10.1
MARKETING AGREEMENT
This Marketing Agreement is effective January 1, 1997, by and between FORMMAKER
SOFTWARE, INC., a Georgia corporation with principal offices at 0000 Xxxxx Xxxxx
Xxxxxxx Xxxxx 000 Xxxxx, Xxxxxxx, Xxxxxxx 00000 ("FSI") and POLICY MANAGEMENT
SYSTEMS CORPORATION, a South Carolina corporation, with principal offices at Xxx
XXXX Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 ("PMSC").
WHEREAS, FSI and PMSC entered into a Marketing Agreement effective October 29,
1993 (the "1993 Marketing Agreement"); and
WHEREAS, pursuant to the 1993 Marketing Agreement PMSC obtained exclusive
marketing rights in the insurance industry for the FSI software which is
described in Exhibit A attached hereto (the "Software") and this Agreement
replaces and modifies the 1993 Marketing Agreement; and
WHEREAS, FSI and PMSC separately entered into a License Agreement effective
October 29, 1993 (the "1993 License") under which PMSC was granted a perpetual,
nonexclusive and worldwide license to the Software;
NOW, THEREFORE, in consideration of the premises, the mutual covenants herein
contained and each act to be performed pursuant hereto, the parties hereby agree
as follows:
1.0 Exclusive Marketing Rights
1.1 FSI hereby agrees that PMSC retains the exclusive right to market and
grant licenses of the Software to any third parties within the
worldwide property and casualty ("P&C") and Life insurance industries
and the non-exclusive right for the health insurance for use in such
industries. Additionally, PMSC shall have the non-exclusive right to
market and grant licenses of the Software to any third parties
worldwide in industries other than insurance, but these marketing
rights with respect to non-insurance industries shall continue with
respect to a particular territory or a particular industry only for so
long as FSI does not grant exclusive rights to such territory or to
such industry to its sales personnel or to a third party. FSI agrees
to give PMSC at least 90 days' prior written notice of any
terminations or restrictions of PMSC's non-exclusive marketing rights.
The P&C and Life insurance industries include all such insurance
companies, reciprocals and exchanges. Additionally, third parties
which provide the benefits of the Software to P&C or Life insurance
companies for their production purposes shall be deemed included in
the P&C or Life insurance industries, but only to the extent that such
third party provides such benefits. As used hereinafter, the term "End
User" or "customer" shall mean and
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refer to insurance and other entities that are users of or likely
candidates to use the Software. PMSC shall secure FSI's approval
before licensing the Software to an enterprise family of companies
that includes a material amount of non-insurance business and FSI
shall secure PMSC's approval before licensing the Software to an
enterprise family of companies that includes a material amount of
insurance business. Neither party shall unreasonably refuse to provide
its approval of a request by the other party. FSI acknowledges that
PMSC has no minimum marketing obligation hereunder. Additionally, PMSC
makes no representations, warranties or guarantees respecting the
financial or other success of any marketing efforts which it engages
in with respect to the Software.
Notwithstanding PMSC's exclusive rights above, FSI and PMSC agree to
FSI marketing the Software to United States insurance agencies
(including MGA), Excess and Surplus companies whose parent company
does not have a license to a PMSC policy processing software product
or access to similar functions through outsourcing with PMSC, and
insurance companies or groups identified on a "Hot List" as initially
set forth in Exhibit B (the "FSI List"). In addition to a list of
current customers, the FSI List may not contain more than 130 P&C and
130 Life insurance company or group prospects. FSI and PMSC both shall
have the right to market the Software into the above-described
entities on the FSI List. Specifically, FSI shall have the right to
license the Software as a "standalone" (i.e., FSI will not license the
Software with a base function interface that integrates the Software
with systems which are competitive with PMSC systems) system to the
FSI List third parties without royalty to PMSC, and PMSC shall have
the right to license the Software to such third parties in conjunction
with a PMSC application/service and/or as a standalone offering. Where
PMSC licenses the Software as a standalone system to one of the FSI
List entities, PMSC shall retain a reduced percentage of the ILC (see
Exhibit E). Further, FSI agrees to inform PMSC in writing every six
(6) months as to licenses of standalone Software systems made into the
FSI List. A prospect account initially on the FSI List shall remain on
the FSI List only until the first anniversary of the date hereof if no
Software products and/or related services are acquired by the account
by such anniversary date. New prospects added after old prospects are
removed shall stay on the list no longer than six (6) months if no
Software products and/or related services are acquired by the account.
In addition, FSI may from time to time remove any customers or company
or group prospects from the FSI List and add other companies or group
prospects in replacement thereof in accordance with the last two
sentences of this Section 1.1. FSI agrees to notify PMSC before
marketing to Excess and Surplus companies whose parent has a license
to a PMSC policy processing software product or access to similar
functions through outsourcing with PMSC.
Certain insurance companies or groups which are PMSC customers or
prospects in the United States shall be listed in Exhibit C hereto
(the "PMSC Base List"). In
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addition to a list of current customers, the PMSC Base List may not contain
more than 274 P&C and 274 Life insurance company or group prospects. All
other P&C and Life insurance companies or groups in the United States which
are not on the FSI List or the PMSC Base List are hereinafter referred to
as the "PMSC Non-Base List." Prospect accounts shall remain on the PMSC
Base List for no more than eighteen (18) months, if no Software products
and/or related services are acquired by the account. While PMSC will
naturally focus on the accounts on the PMSC Base List and FSI will
similarly focus on the accounts on the FSI List, each party may market to
any account and Exhibit E sets forth the relevant license fee royalties
either party will pay the other. When an account on the PMSC Base List or
the FSI List is removed from such list, the account shall be available for
the other party to place on its list; provided, however, that additions to
the FSI List require PMSC's concurrence. PMSC will not unreasonably
withhold concurrence for FSI to add an account to the FSI List.
1.2 In consideration of FSI's commitments and obligations under this Agreement,
PMSC agrees that for End Users which, prior to this Agreement being
terminated or expiring, license the Software pursuant to agreements with
PMSC ("License Agreements"), PMSC shall pay FSI certain compensation
described below.
1.3 If during the term of this Agreement PMSC (a) elects to enter into a
marketing agreement with a third party that has developed a materially
competitive product to the Software (such as Image Sciences, Inc. or
Computer Language Research, Inc. (EFS) or if PMSC receives significant
compensation from licensing fees or otherwise from the marketing of a
materially competitive product or (b) PMSC independently commences material
development and marketing efforts relative to programs and/or materials
which are materially competitive with the Software's electronic forms
processing functions, PMSC agrees that FSI may elect to terminate this
Agreement, provided that FSI has first given PMSC prior written notice of
FSI's election and at least 60 days to cure or otherwise resolve the
situation in writing with FSI.
Notwithstanding the first paragraph of this Section 1.3, (i) FSI agrees
that PMSC's marketing of PMSC's products and services for the Internet (all
references to the Internet shall be deemed to include Intranets) in
conjunction with third party products and services that are materially
competitive with FSI's products and services shall not give rise to a right
to terminate this Agreement or the 1993 License, (ii) PMSC agrees that FSI
is free to market FSI's Internet products and services without license fee
royalties to PMSC and regardless of whether they are marketed in
conjunction with products and services that are materially competitive with
PMSC products and services, (iii) PMSC may provide product and/or services
offerings which may utilize or consist of print outsourcing services from
third parties, regardless of whether such third party has a software
product that is competitive with the Software and regardless of the
financial arrangements between PMSC and such third party, without
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giving rise to any right to terminate this Agreement or the 1993
License, and (iv) PMSC's acquisition of business units that have
existing relationships with FSI competitors shall not give rise to a
right to terminate this Agreement or the 1993 License. Notwithstanding
the foregoing, during the term of this Agreement PMSC will not use the
Software as any part of an Internet services-only offering without
further agreement with FSI.
1.4 Notwithstanding Section 1.3 above, PMSC shall at all times be free to
provide services support to those of its customers which license or
have licensed software from any third party, provided that PMSC shall
not utilize the Software in any such servicing. For example, if a PMSC
customer utilizes DocuMerge as its print solution, nothing herein
shall restrict PMSC from providing services related to enabling
DocuMerge to interface with PMSC's software systems.
1.5 FSI hereby authorizes PMSC to make as many copies of the Software as
PMSC reasonably deems necessary to exercise its marketing rights
granted under this Agreement. This includes the right to use the
Software without license fees for PMSC's business purposes in-house if
PMSC so elects.
2.0 FSI Responsibilities
2.1 FSI shall provide the following ancillary marketing support at no
charge to PMSC (but none of such marketing support nor any of the
required actions under any of Sections 2.2, 2.3, or 2.4 below shall
include an FSI obligation to translate the Software or any related
materials into another language; however, the foregoing shall not
change the current understanding that if and when FSI may make the
Software available in another language, FSI shall provide same to PMSC
hereunder on the same terms and conditions as if the Software were in
English):
2.1.1 Promotion of the Software with national advertising and via
demonstrations, presentations and lectures.
2.1.2 Provide periodic education and training in a reasonable manner
for PMSC marketing and technical sales support personnel.
2.1.3 Provide demonstration materials contained on magnetic or other
media, with associated manuals and documentation, for purposes
of conducting demonstrations of the Software (provided,
however, that such materials shall not include any forms owned
by XXXXX or substantiallysimilar to XXXXX forms without FSI
first providing PMSC with a copy of FSI's written agreement
with XXXXX which permits such inclusion without any
obligation).
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2.1.4 Upon PMSC's request, provide reasonable marketing support at
conferences, business and trade shows, and reasonable marketing
seminars with PMSC personnel.
2.1.5 Upon PMSC's request, provide reasonable marketing support for
the procurement of End User License Agreements.
2.2 FSI represents and warrants that since the 1993 Marketing Agreement
and during the term of this Agreement it both has and will continue to
provide PMSC with the complete source code, object code and
documentation for the most current versions of the Software.
Throughout the term of this Agreement, FSI shall continue to provide
PMSC and all MESA-supported End Users with the latest source code
(unless PMSC and FSI mutually agree in writing to not provide some of
the Software in source code), object code and documentation of any
Maintenance or Enhancement updates or new editions of the Software as
soon as practicable and in no event later than the date on which such
update or new edition is made generally available. "MESA" is defined
in applicable License Agreements. Notwithstanding PMSC's standard
terms regarding Enhancements, FSI hereby represents and warrants that
FSI shall provide PMSC and End Users with Enhancements to the Software
consistent with PMSC's directions throughout the term of this
Agreement subject to the provisions of Section 2.4 of this Agreement.
2.3 FSI shall provide MESA for licensed Software to PMSC and End Users as
provided herein and in executed License Agreements. The general form
of such License Agreements shall be approved by both PMSC and FSI.
PMSC shall supply FSI with copies of such License Agreements. FSI
shall keep the terms of such License Agreements confidential as PMSC
Confidential Information under Section 9.0 below without the
requirement of labeling such documents "Confidential". In the event
that this Agreement is terminated by PMSC due to an "Event of
Default", as defined below, caused by FSI while an End User still is
entitled to MESA for Software pursuant to the terms of a License
Agreement, PMSC may elect to provide future MESA support to End Users
and retain all further MLC without obligation to provide further
compensation to FSI, and FSI shall be obligated during the first
twelve (12) months after such termination to pay PMSC thirty-five
percent (35%) of the MLC that FSI is then receiving from accounts
which have directly contracted with FSI and thereafter, to pay twenty
percent (20%) of such MLC for the remainder of the initial MESA Terms
of such FSI contracts. In the event of a termination of this Agreement
by FSI due to an Event of Default caused by PMSC, FSI may elect to
retain all MLC from End Users which FSI has directly licensed without
obligation to provide further compensation to PMSC and all other End
Users which PMSC has directly contracted with shall be subject to PMSC
thereafter providing MESA and remitting to FSI a thirty-five percent
(35%) royalty on MLC actually received during the first 12 months
after termination and thereafter only a twenty percent (20%) royalty
to FSI
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on MLC actually received for the remaining term of that End User's initial
MESA Term.
2.4 PMSC will provide FSI with Enhancement requests and FSI agrees to use
reasonable efforts to provide such Enhancements to the Software in a way
that causes the Software to support PMSC's Series II, Series III, POINT,
INSURE/90, CyberLife and other systems or architectures and ongoing
functional requirements of End Users with MESA for the Software, including
any and all platform changes PMSC may elect to provide for its Systems. FSI
agrees that, during the term of this Agreement, PMSC may reasonably direct
FSI regarding such Enhancements subject to the requirement that the level
of Enhancements shall bear a reasonable relationship to the income that is
reasonably likely to be available to FSI from such Enhancements. FSI and
PMSC senior management shall mutually define lists of Enhancements as PMSC
deems reasonably necessary. FSI acknowledges that PMSC hereby seeks to be
able to exercise substantial influence in decisions regarding Enhancements,
and PMSC acknowledges that FSI shall only be subject to such influence to
the extent required under the terms of this Section 2.4.
2.5 FSI agrees that PMSC may provide any and all installation, implementation
(including training) or other services to licensed End Users for the
Software. FSI further agrees that PMSC may enter into any such services
agreement under terms, conditions and charges established by service
agreements directly between PMSC and the End User. FSI agrees to provide
PMSC with any reasonable assistance requested by PMSC in order for PMSC to
provide chargeable Software services or for PMSC to be trained to provide
such services, except that FSI shall not be required to provide such
assistance with respect to any customer to which FSI is providing any
services at such time under a contract directly between such customer and
FSI. PMSC and FSI agree to continue their use of the current Subcontractor
Agreement dated April 10, 1994 for FSI to provide such services on mutually
acceptable terms and rates, and it is agreed that the above-referenced "any
reasonable assistance" shall be provided under Work Orders at the agreed
rate of $11,500 per person month and the parties agree to clarify this
understanding by Addendum to the Subcontractor Agreement.
FSI agrees that if PMSC does not terminate the 1993 License, then during
the term hereof and for three (3) years after any termination of this
Agreement, FSI shall not enter into any relationship with any third party
that has a product which is materially competitive with a PMSC software
product that exists or has been publicly announced at the time of such
termination (not including the Software) and in the event of a breach of
the foregoing commitment, notwithstanding anything to the contrary set
forth in this Agreement, PMSC shall be entitled to exercise any or all
remedies it may have at law or in equity (without the necessity of posting
any bond or other financial instrument) for damages or injunctive relief.
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2.6 FSI shall not be obligated to provide Maintenance for any part of the
Software which has been modified without FSI's consent.
2.7 FSI shall, at FSI's expense, take reasonable steps from time to time
as may be reasonably necessary or prudent to protect the ownership of
the intellectual property rights embodied in the Software, including
all intellectual property associated with the Software, including by
seeking to enjoin any infringement of such intellectual property. FSI
shall promptly respond in reasonable detail to any inquiry of PMSC
regarding the scope of such efforts and the existence of any known or
suspected unauthorized or conflicting uses or applications of such
intellectual property. In the event that, following PMSC's request,
FSI fails to take the steps reasonably necessary to protect FSI's
intellectual property and preserve the value of PMSC's rights, PMSC is
authorized (but shall not be obligated) upon written notice to FSI to
take such action on FSI's behalf and in FSI's name and place and PMSC
may recover its reasonable costs of doing so from FSI.
3.0 PMSC Responsibilities
3.1 PMSC shall market the Software at such times and in such manner as it
in its sole discretion shall deem appropriate and consistent with the
terms and conditions of this Agreement. During the term of this
Agreement, PMSC may use any FSI trade name, logo, trademark, service
xxxx or other identifying symbol; however, PMSC shall not be obligated
to use same. It is specifically understood that PMSC may market the
Software under names PMSC has selected, and that as between FSI and
PMSC, PMSC owns all rights and interests in the following names or
marks: Easy Forms Display ("EFD"), Easy Forms Print ("EFP"), Advanced
Forms Generation ("AFG"), Advanced Forms Entry ("AFE"), Distributed
Forms Generation ("DFG"), and Distributed Forms Entry ("DFE"). FSI may
utilize the above names in connection with End Users during the term
of this Agreement. PMSC and FSI agree that they are joint owners of
the Document Automation Platform ("DAP") name or trademark and that no
later than 12 months after the termination of this Agreement, each
party will modify its use of the "DAP" xxxx to make it distinct from
the other's modified version of the DAP xxxx.
3.2 PMSC shall license the Software by executing License Agreements which
are submitted from End Users. PMSC may consult FSI in negotiations of
the License Agreements with End Users as PMSC deems reasonably
necessary.
3.3 During the term of this Agreement, where PMSC licenses the Software as
part of a PMSC system/service to any account or where FSI licenses the
Software as a standalone product, the parties agree that the payment
of applicable royalties on the ILC and MLC shall be as defined in
Exhibit E. However, effective January 1, 1997 and thereafter, PMSC
agrees that the royalty to be paid to FSI on all MLC from
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existing contracts in the United States and Canada at that time shall
be sixty-five percent (65%). FSI and PMSC further agree that the ILC
and MLC royalties for other geographies is defined as those in Exhibit
E.
Notwithstanding the above, Addendum No. 3, as amended, to the 1993
Marketing Agreement provided for certain understandings regarding
PMSC's Software inventory rights as described hereafter. After the
first $2,000,000 in ILC's to End Users for Software licenses executed
after January 1, 1996, and until such time as the amount of such
additional End User license fees is greater than an amount equal to
(i) $2,000,000, minus (ii) the total ILC's charged to End Users for
Software licenses during the period from October 13, 1995 through
December 31, 1995, PMSC shall reduce its inventory of the Software by
the amount of ILC royalty that PMSC would otherwise pay FSI in the
absence of this provision. With respect to those End User license fees
which were subject to inventory reduction as computed in the
immediately preceding sentence, PMSC's ILC payment obligations to FSI
will not be subject to cash payment to FSI. Furthermore, the parties
agree that at such time as the total of ILC's charged to End Users for
Software licenses after January 1, 1996 equals (i) $4,000,000 minus
(ii) the total ILC's charged to End Users for Software licenses during
the period from October 13, 1995 through December 31, 1995, FSI shall
thereafter be entitled to payment of the agreed upon royalties (as
determined from Exhibit E) based on the ILC's charged to End Users
that license the Software from PMSC during the remaining term of this
Agreement and any extensions, if applicable.
3.4 During the term of this Agreement, the ILC and MLC charged by PMSC to
End Users for use of Software shall be determined in accordance with
Exhibit D, as such Exhibit is amended from time to time by mutual
agreement of FSI and PMSC. PMSC shall not reduce ILC and MLC charges
more than 25% below the initial list pricing set forth in Exhibit D
without the approval of an FSI Vice President or above. PMSC agrees to
put all price reduction approval requests in writing to an FSI Vice
President or above and FSI agrees to provide copies of any such
approved requests to the applicable PMSC marketing representative and
to PMSC's General Counsel.
4.0 Representations And Warranties:
4.1 FSI represents and warrants that PMSC shall receive, pursuant to this
Agreement and as of the effective date of this Agreement, the
worldwide rights to market licenses of the Software as provided
herein. FSI represents and warrants that it has sole title to the
Software. FSI represents and warrants that it has the unqualified
right to transfer to PMSC the marketing rights to the Software which
are the subject of this Agreement. FSI represents and warrants that
FSI has not entered into a written agreement that imposes on FSI an
obligation or restriction which would materially
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interfere with, be inconsistent with, or present a conflict of
interest concerning the Software or FSI's obligations hereunder.
4.2 FSI represents and warrants that the Software does not and will not
infringe any patent, copyright, trade secret or other intellectual
property rights of any third party in any material respect; that no
notice or claim alleging any such infringement has been received by
FSI; that the Software is eligible for protection under applicable
copyright law and has not been forfeited to the public domain; and
that the source code and Software specifications have been maintained
in reasonable confidence.
4.3 FSI represents and warrants that there are no agreements or
arrangements now or previously in effect with respect to the
marketing, distribution, licensing, or promotion of the Software by
any third party where such third party can receive compensation as a
result of an entity in the insurance industry obtaining benefits from
use of the Software by itself or by a third party.
4.4 FSI represents and warrants that the execution and delivery of this
Agreement by FSI does not, and the consummation of the transactions
contemplated hereby will not, violate any provision of the Articles of
Incorporation, as amended, or Bylaws, as amended, of FSI. No consent,
approval, order or authorization of, or registration declaration or
filing with, any governmental or other entity is required to be
obtained or made by or with respect to FSI in connection with the
execution and delivery by FSI of this Agreement or the consummation of
the transactions contemplated hereby.
4.5 FSI represents and warrants that FSI has the capacity and authority to
execute and deliver this Agreement, to perform hereunder and to
consummate the transactions contemplated hereby without the necessity
of any act or consent of any other person or entity. The execution,
delivery and performance by FSI of this Agreement have been duly
authorized and approved by the Board of Directors of FSI. This
Agreement and all FSI commitments set forth herein constitute the
valid and legally binding obligations of FSI enforceable against it in
accordance with their respective terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other laws from time to time in effect that
affect creditors' rights generally.
4.6 FSI represents and warrants that both now and in the future the
Software shall conform and operate in all material respects in
accordance with its user and technical documentation, specifications
and FSI- approved marketing brochures for the entire term of this
Agreement, and that the attached Exhibit A includes a complete and
correct list and summary description of all computer software modules
currently comprising the Software. If any failure of the Software to
so conform occurs during the term of this Agreement, FSI shall
immediately correct or replace the Software and/or documentation
(whichever PMSC reasonably directs) so as to cause it to
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conform without cost to PMSC or an End User; provided that (i) FSI
receives reasonable and timely notice of any such failure in writing
or by telephone confirmed in writing later, (ii) the Software has not
been modified other than as approved by FSI or as contemplated by FSI
in its documentation and (iii) any delivered improvements to the
Software which would affect such failure to conform have been
implemented.
4.7 PMSC represents and warrants that PMSC has the right to license its
software systems to End Users and agrees to defend FSI against all
claims arising from the actual or alleged infringement by PMSC
software of the rights of third parties, provided that PMSC receives
reasonable and timely notice in writing of the receipt by FSI of any
such claim or notice of any such claim and permits PMSC upon request,
and at PMSC's cost and expense, to assume and control the defense or
settlement thereof. FSI agrees to cooperate with PMSC in every
reasonable manner in the defense of such claim. In defending or
settling any such claim PMSC may elect to (i) obtain the right of
continued use of its software system, or part thereof, which is
alleged to be infringing or (ii) replace or modify such software, or
part thereof, so as to avoid such claim of infringement; PMSC will not
be obligated to defend or settle any claim of infringement (i)
asserted by a parent, subsidiary or affiliate of FSI, or (ii)
resulting from use of the PMSC software in combination with non-PMSC
systems. Under no circumstances shall FSI make any additions to,
changes in, or modifications of PMSC software.
4.8 PMSC represents and warrants that the execution and delivery of this
Agreement by PMSC does not, and the consummation of the transactions
contemplated hereby will not, violate any provision of the Articles of
Incorporation, as amended, or Bylaws, as amended, of PMSC. No consent,
approval, order or authorization of, or registration, declaration or
filing with, any governmental or other entity is required to be
obtained or made by or with respect to PMSC in connection with the
execution and delivery by PMSC of this Agreement or the consummation
of the transactions contemplated hereby.
4.9 PMSC represents and warrants that PMSC has the capacity and authority
to execute and deliver this Agreement, to perform hereunder and to
consummate the transactions contemplated hereby without the necessity
of any act or consent of any other person or entity whomsoever, or if
consent is required, then it has been properly obtained. This
Agreement and all PMSC commitments set forth herein constitute the
valid and legally binding obligations of PMSC enforceable against it
in accordance with their respective terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other laws from time to time in effect that
affect creditors' rights generally.
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5.0 Default
5.1 If either party fails to timely, fully, and correctly perform any of
its material obligations set forth in this Agreement, then the other
party may give written notice (specifically identifying the breach on
which termination is based) that it will terminate this Agreement
unless such material failure is corrected or the parties otherwise
agree in writing within sixty (60) days after such notice is
effective. Correction of the breach described in such notice shall
render the notice void. Both parties agree that before any such
notices shall be given, all reasonable attempts shall be made to
escalate the dispute in writing to senior most management of both
parties for resolution. Failure to correct or otherwise agree during
such 60-day period shall constitute an "Event of Default" with respect
to the breaching party. Upon the occurrence of an Event of Default on
the part of FSI, PMSC may, but shall not be obligated to, exercise one
or more of the following remedies: (i) PMSC may terminate this
Agreement by notice to FSI; and (ii) PMSC may, but shall not be
obligated to, utilize the source code for the Software to provide
needed support to End Users. Upon the occurrence of an Event of
Default on the part of PMSC, FSI may, but shall not be obligated to,
terminate this Agreement by notice to PMSC.
5.2 PMSC's use of the source code as provided above shall in no way reduce
or release FSI from any liability for the material failure to perform
FSI's obligations hereunder. Except as otherwise provided, no
termination of this Agreement shall affect the obligations of either
party which arise prior to such termination.
6.0 Services
6.1 Property and Casualty: For the P&C marketplace, the rate at which PMSC
can subcontract P&C services to FSI (subject to FSI's acceptance)
shall be determined from the chart in Section 6.1.1 below. These rates
in Section 6.1.1 are based on PMSC's P&C division not electing to
subcontract at least ninety percent (90%) of all P&C services to FSI.
If PMSC's P&C division elects to subcontract at least ninety percent
(90%) of all P&C services to FSI, the subcontract rates for the P&C
business will be the same as the rates for PMSC's Life division as
shown in Section 6.2.1 below and PMSC may change such election at any
time by providing 90 days' prior written notice to FSI.
6.1.1 If FSI executes a subcontract agreement for P&C services
(including Work Orders) that obligates FSI to have complete
management and task performance responsibility, including
without limitation all of PMSC's risks of collection (to the
extent that a customer is withholding payment due to faulty
performance on the part of FSI) and FSI indemnification of PMSC
for
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all contractual risks, for a PMSC service agreement (including
Work Orders), FSI's rates shown in the FSI agreement shall be as
follows:
Customer Xxxx Rate - In Person Months PMSC Gross Margin
------------------------------------- -----------------
Below $11,500 10%
$11,500-$13,499 15%
$13,500-$14,499 17.5%
$14,500-$15,499 20%
$15,500 and above 22.5%
6.1.2 If PMSC elects to let FSI provide the P&C services under a
contract written between FSI and the applicable customer, FSI
agrees to have complete management and task performance
responsibility, including without limitation all of PMSC's risks
of collection and FSI indemnification of PMSC for all
contractual risks, and FSI agrees to pay PMSC a royalty equal to
fifty percent (50%) of the revenue in excess of $8,000 per
person month.
6.2 Life: For the Life marketplace, the rate at which PMSC can subcontract
Life services to FSI (subject to FSI's acceptance) shall be determined
as follows. These rates are based on PMSC's Life division electing to
subcontract at least ninety percent (90%) of all Life services to FSI.
PMSC hereby elects to initially subcontract at least 90% of the Life
services to FSI; however, PMSC shall be free to change such election
on ninety (90) days' prior notice to FSI. If FSI falls to timely
provide to PMSC accounts services to which FSI has agreed, both as to
type and schedule, then PMSC may elect to only pay FSI 50% of the
royalty which PMSC would otherwise pay on the ILC for that account (or
if already paid, to recover such amounts from other payments).
6.2.1 If PMSC subcontracts Life services to FSI but PMSC expressly
elects in the written understanding with FSI to be responsible
for the management of the services project, (i) FSI shall still
be responsible for performance in accordance with its contract
with PMSC (and PMSC shall be responsible to pay FSI for
acceptable performance even if the PMSC Customer has not paid
PMSC) and (ii) FSI agrees that for a PMSC customer rate equal to
or in excess of $12,000 per person month, the FSI subcontractor
rate shall be 70% of the customer rate; otherwise PMSC and FSI
shall mutually agree in writing on the subcontractor rate to be
used. FSI shall take the initial lead in documenting such
understanding. If PMSC Life division no longer elects to
subcontract at least ninety percent (90%) of all services to
FSI, then either 6.2.2 or 6.2.3 below shall be applicable.
12
6.2.2 If FSI executes a subcontract agreement for Life services
(including Work Orders) that obligates FSI to have complete
management and task performance responsibility, including
without limitation all of PMSC's risks of collection and FSI
indemnification of PMSC for all contractual risks, for a PMSC
service agreement (including Work Orders), FSI's rates shown in
the FSI agreement shall be as follows:
Customer Xxxx Rate - In Person Months PMSC Gross Margin
------------------------------------- -----------------
Below $11,500 10%
$11,500-$13,499 15%
$13,500-$14,499 17.5%
$14,500-$15,499 20%
$15,500 and above 22.5%
6.2.3 If PMSC elects to let FSI provide the Life services under a
contract written between FSI and the applicable customer, FSI
agrees to have complete management and task performance
responsibility, including without limitation all of PMSC's
risks of collection and FSI indemnification of PMSC for all
contractual risks, and FSI agrees to pay PMSC a royalty equal
to fifty percent (50%) of the revenue in excess of $8,000 per
person month.
6.3 Outsourcing: PMSC agrees that notwithstanding its exclusive marketing
rights for the P&C and Life insurance industries, FSI may use the
Software to provide outsourcing services offerings to P&C and Life
insurance companies worldwide. In consideration of this agreement, FSI
agrees to pay PMSC ten percent (10%) of the print outsourcing revenue,
net of actual costs for postage and consumable supplies, received from
the PMSC Base List customers and prospects, provided that they are not
already licensees of the Software and paying an MLC. The parties agree
to review on a case by case basis the division of revenue for
outsourcing services in other territories. The above 10% royalty shall
be estimated upon FSI entering into the contract with the customer,
prorated into annual portions payable at the beginning of each 12-
month period and paid to PMSC on a non-refundable basis so that PMSC
may treat this royalty fee in a manner similar to ILC for purposes
that include commission credit (as and to the extent provided in any
applicable PMSC marketing compensation scheme) for the PMSC account
representative whose customer acquires print outsourcing directly from
FSI (example: FSI estimates that the 10% net revenue royalty is
$10,000 over 5 years for a hypothetical new outsourcing P&C customer.
The first year FSI pays PMSC $2,000 non-refundable upon contract
signing. Then for the next year and each following year FSI re-
estimates the forecast and factors in actual results for the past
13
year. Therefore if actual net revenue had been $18,000 [or $22,000]
and was re-forecast to be the same in year 2, FSI would pay PMSC
$1,600 [or $2,400] non-refundable at the beginning of year 2.) FSI
shall only be obligated to pay PMSC this ten percent (10%) royalty on
print outsourcing revenue from P&C and Life insurance accounts which
do not separately license the Software.
At any time, PMSC can terminate the TPM and JUA contractual
relationship(s) it may have with FSI for print outsourcing services on
twelve (12) months' written notice and bring in-house the TPM and JUA
customers that formerly were outsourced in FSI's Print Center.
Additionally or alternatively, PMSC can terminate any of those
contractual relationships specified on Exhibit I on three (3) months'
prior written notice and bring such customers in-house. If PMSC
exercises the above rights to terminate FSI print outsourcing services
and PMSC thereafter provides the print outsourcing services using the
Software, then for the remaining term of this Agreement PMSC shall pay
FSI a royalty of ten percent (10%) of a hypothetical MLC calculated
using the actual processed DWP. If FSI provides print outsourcing
services under the terms of the paragraph immediately preceding this
paragraph and PMSC later persuades such account(s) to use PMSC's
outsourcing services, PMSC shall treat such situation under the terms
set forth below.
During the term of this Agreement, PMSC will pay FSI a royalty for
outsourcing use of the Software calculated to equal thirty-five
percent (35%) of a hypothetical MLC calculated using the actual
processed DWP of the PMSC print outsourcing accounts; provided that
this shall not apply to the TPM, JUA and Exhibit I business addressed
above where the royalty percentage is ten percent (10%) rather than
thirty-five percent (35%). PMSC will pay this royalty on all accounts
which PMSC contracts with for outsourcing by PMSC using the Software
during the term of this Agreement, regardless of whether before or
after PMSC elects to bring its TPM, JUA or other accounts in-house.
The above thirty-five percent of hypothetical MLC royalty terminates
with the termination or expiration of this Agreement. PMSC shall not
be obligated to pay any royalty on any new outsourcing accounts which
PMSC contracts with after the termination date of this Agreement.
Additionally, if PMSC elects as provided above to take the TPM, JUA
and other business in-house, PMSC also agrees to pay FSI the remaining
amount yet to be amortized for FSI's implementation cost of the Print
Center related to PMSC projects (see Exhibit G).
While this Agreement is in effect and PMSC uses FSI's print
outsourcing services for PMSC's customers, PMSC and FSI agree that any
and all of their outsourcing services contracts shall be amended in a
fashion similar to Addendum No. _____ set forth in Exhibit F. The
intent of such amendments is to provide for one consolidated
understanding that determines FSI's monthly charge per image for all
the PMSC business processed in FSI's Print Center, i.e. FSI's pricing
shall be based on the total, aggregated volume of print produced by
the Software in any environment where the
14
Software is used with a PMSC customer. The total aggregated volume
shall determine the FSI charge to PMSC according to the Print Center
graduated scale as defined in Exhibit F. FSI agrees that PMSC shall
receive "Most Favored Nation" pricing for the PMSC business processed
in FSI's Print Center. Further, FSI and PMSC agree that PMSC will have
no minimum volume requirements. Additionally, the provisions of
Addenda 2 and 4 of the 1993 Marketing Agreement are preserved, as set
forth in Exhibit H for PMSC's benefit should PMSC elect to utilize
such pricing.
7.0 Indemnification
7.1 FSI hereby agrees to fully indemnify, defend and hold PMSC harmless
from and against all liability, loss, damages or injury and all
reasonable costs and expenses (including reasonable counsel fees and
costs and expenses related thereto) suffered or incurred by PMSC and
arising directly from any material misrepresentation or breach of any
covenant or warranty of FSI contained in this Agreement. In the case
of any third party claim against PMSC, FSI further agrees to submit to
personal jurisdiction in any forum in which PMSC may be sued on any
claim subject to indemnification. Any information FSI may have given
PMSC prior to the effective date hereof shall in no way limit, affect
or impair the ability of PMSC to rely upon the representations,
warranties, covenants and obligations of FSI set forth in this
Agreement. All representations and warranties made or undertaken by
FSI in this Agreement have been relied upon by PMSC and shall survive
the execution and performance of this Agreement.
7.2 PMSC hereby agrees to fully indemnify, defend and hold FSI harmless
from and against all liability, loss, damages or injury and all
reasonable costs and expenses (including reasonable counsel fees and
costs and expenses related thereto) suffered or incurred by FSI and
arising directly from any material misrepresentation or breach of any
covenant or warranty of PMSC contained in this Agreement. In the case
of any third party claim against FSI, PMSC further agrees to submit to
personal jurisdiction in any forum in which FSI may be sued on any
claim subject to indemnification. Any information PMSC may have given
FSI prior to the effective date hereof shall in no way limit, affect
or impair the ability of FSI to rely upon the representations,
warranties, covenants and obligations of PMSC set forth in this
Agreement.
All representations and warranties made or undertaken by PMSC in this
Agreement have been relied upon by FSI and shall survive the execution
and performance of this Agreement.
7.3 The foregoing indemnities are conditioned on the following:
7.3.1 Prompt written notice to the indemnifying party of any claim or
proceeding subject to indemnity; however, the failure to give
prompt notice shall not
15
waive the above indemnification if the indemnitee's rights are
not prejudiced in any material respect; and
7.3.2 Cooperation by the indemnified party in the defense and
settlement of such claim at the expense of the indemnifying
party; and
7.3.3 Prior written approval by the indemnifying party of any
settlement, which approval shall not be unreasonably withheld.
8.0 Term and Termination
8.1 This Agreement shall be effective on the date first above written and
shall remain in force for a period of three (3) years. Notwithstanding
the preceding sentence, at any time after this Agreement has been in
effect for twelve (12) months, PMSC shall have the option to terminate
this Agreement for convenience with ninety (90) days' prior written
notice to FSI, which notice may not be given until after the
expiration of such 12-month period. Neither party shall be obligated
to renew this Agreement at the end of the 3-year term. Upon
termination (whether as a result of PMSC giving a 90-day notice or the
Agreement not being renewed at the end of its 3-year term) the MLC
royalties which PMSC pays FSI on existing contracts shall decrease
from 65% of revenue to 35% of MLC revenue actually received and FSI
shall continue to provide base Software support, fixes, and
enhancements (including new releases) for 12 full calendar months
after the termination of this Agreement. Upon such termination (other
than a termination based on an Event of Default with respect to PMSC),
FSI and PMSC agree to work together in good faith to mutually define
the scope of the next two (2) releases of the Software which are
expected to be produced during the twelve (12) month period after such
termination. PMSC may provide its customers with PMSC specific
enhancements during such period; however, FSI shall not be obligated
to support such PMSC development. During the second 12 full calendar
month period after such termination and for so long as PMSC does not
elect to terminate its license for the Software under the 1993
License, the MLC royalties which PMSC pays FSI on contracts existing
on the date of termination shall decrease from 35% of revenue to 20%
of MLC revenue actually received from customers. During the second 12
full calendar month period, FSI will make available Software support
(i.e., fixes, releases, training, and education) to PMSC on a time and
materials basis at $11,500 per person month. FSI and PMSC agree that
for a period of six (6) months from the earlier of (i) the date PMSC
gives 90 days' prior written notice or (ii) the end of the 33rd full
calendar month after the effective date hereof, both parties will work
together to develop an orderly transition plan for existing customers.
If PMSC gives 90 days' written notice of termination, then 30 days
after such notice is given, the marketing relationship becomes non-
exclusive. FSI and PMSC agree to use commercially reasonable efforts
to amicably unwind from any accounts where joint marketing efforts
were underway at the end of such 30-day period. If and when this
Agreement
16
terminates, PMSC and FSI agree that they will evaluate the possibility
of a nonexclusive marketing understanding.
8.2 In addition to Sections 1.3 and 2.5, either party shall have the right
to terminate this Agreement in the event of an Event of Default with
respect to the other party as provided in Section 5.1.
8.3 In the event of any termination or expiration of this Agreement (i)
FSI's duty to provide PMSC with the then current version(s) of the
Software (including any work in progress) (except in the case of a
termination due to an Event of Default caused by PMSC), (ii) either
party's rights to hold the other accountable for any breach of the
provisions of the Section entitled "Representations and Warranties",
and (iii) the provisions of the Sections entitled "Indemnification"
and "General" shall survive and continue and shall bind the parties
and their legal representatives, successors, and assigns.
9.0 Information
9.1 PMSC acknowledges that FSI has represented the confidential nature of
the Software and certain other information which FSI may have shared
with PMSC from time to time. Information (other than the Software) to
be treated as Confidential Information by PMSC under this Agreement
will be marked by FSI as "Confidential" prior to disclosure to PMSC
or, if orally or visually disclosed, specifically declared to be
Confidential Information in writing within 20 days following such
disclosure to PMSC. The Software and such marked or declared
information is referred to as the "FSI Confidential Information." PMSC
will take reasonable steps to not disclose the FSI Confidential
Information in an unauthorized manner by exercising a degree of care
which is similar to that used to protect PMSC's own proprietary
information from unauthorized use or disclosure; provided that if a
third party infringes FSI's proprietary rights in the Software,
Section 2.7 shall apply. The foregoing is an express commitment of
PMSC to FSI.
9.2 FSI hereby agrees that all information regarding PMSC's systems,
services and strategic directions, which does not include
nonconfidential marketing information such as the existence of this
Agreement, communicated by PMSC to FSI, prior to the effective date
hereof, shall be given by PMSC and received by FSI in confidence and
shall be used only for the purposes of the prior agreements referred
to above and this Agreement and only in accordance with the terms of
that certain Non-Disclosure Agreement between the parties dated August
14, 1990, as amended.
FSI acknowledges that PMSC has represented the confidential nature of
the PMSC software systems and documentation ("Systems") and certain
other information which PMSC may have shared with FSI from time to
time. Information (other than the
17
Systems) disclosed after the effective date hereof and to be treated
as Confidential Information by FSI under this Agreement will be marked
by PMSC as "Confidential" prior to disclosure to FSI or, if orally or
visually disclosed, specifically declared to be Confidential
Information in writing within 20 days following such disclosure to
FSI. The Software and such marked or declared information is referred
to as the "PMSC Confidential Information." FSI will take reasonable
steps to not disclose the PMSC Confidential Information in an
unauthorized manner by exercising a degree of care which is similar to
that used to protect FSI's own proprietary information from
unauthorized use or disclosure. The foregoing is an express commitment
of FSI to PMSC.
9.3 The confidentiality obligations set forth in either 9.1 or 9.2 above
shall not apply to the extent (i) a party is required to disclose the
information under court or governmental order; provided that such
party shall use reasonable and diligent efforts to first notify the
other party so that such other party can attempt to secure an
appropriate protective order; (ii) the information is in or comes into
the public domain through no wrongful act or omission of the other
party; (iii) the information is received by a party from a third party
not in violation of an obligation of confidentiality; (iv) a party
discloses or makes available its information to a third party on an
unrestricted basis; or (v) a party is able to demonstrate that such
information or technology has been independently developed by or on
behalf of such party. Additionally, no information marked as
"Confidential" under Section 9.1 or Section 9.2 shall constitute FSI
Confidential Information or PMSC Confidential Information, as the case
may be, except to the extent that the receiving party shall have
agreed in writing to the designation of such information as
"Confidential" after receiving a written disclosure of the general
nature thereof. Furthermore, the confidentiality provisions of
Sections 9.1 and 9.2 shall not be deemed to limit any of the following
actions: (a) a party's disclosure of the existence of this Agreement
and the basic concepts of same, (b) a party's disclosure of this
Agreement in connection with a loan, private sale of equity or other
securities, or other significant transaction involving such party,
such as a merger of such party, provided first that a reasonable
confidentiality agreement is secured for the benefit of the other
party hereto, or (c) a party's disclosure (by filing with the
Securities and Exchange Commission and any state regulatory agency or
otherwise) of this Agreement in connection with any offering of
securities that are registered under the Securities Act of 1933, as
amended (a "Registered Offering"), provided that the disclosing party
shall have first requested confidentiality with respect to the filing
thereof. Notwithstanding the above or anything else to the contrary in
this Agreement or elsewhere, FSI agrees that if there is a disclosure
of the Agreement or a material portion of the terms and conditions
thereof in connection with a Registered Offering and if PMSC is
dissatisfied or uncomfortable with same in PMSC's sole discretion,
PMSC shall have express right to terminate this Agreement on 10 days'
prior written notice, in which case such termination shall be treated
as the equivalent of the 90 day notice termination or non-renewal
referred to in Section 8.1.
18
10.0 Freedom of Independent Development
10.1 Nothing in this Agreement shall be construed as prohibiting or
restricting PMSC from independently developing and marketing programs
and/or materials which are in any manner competitive with the
Software. The foregoing sentence does not amend or diminish Section
1.3 above.
10.2 PMSC hereby grants FSI a non-exclusive, paid-up, royalty-free,
worldwide license to utilize and market any improvements, derivations
and modifications of the Software made by PMSC prior to the
termination of this Agreement and delivered by PMSC to FSI, including
copyrights thereto, which license shall survive termination of this
Agreement. FSI is expressly granted the right to assign or sub-license
any such improvements, derivations and modifications following the
termination of this Agreement. The foregoing shall not apply to any
interfaces developed by PMSC, and PMSC shall retain all rights, title
and ownership, including copyrights thereto, to any such interfaces
developed by PMSC.
11.0 General
11.1 All notices which are required or permitted to be given or submitted
pursuant to this Agreement shall be in writing and shall be either (i)
delivered in person, (ii) sent certified mail, return receipt
requested, to the address set forth herein or to such other address as
a party may from time to time designate in writing for such purpose,
(iii) sent using Federal Express or other reliable overnight delivery
service or (iv) sent by telefax to the following numbers: PMSC - (803)
735-5560/FSI - (000) 000-0000. Notices shall be deemed to have been
given at the time when personally delivered, the next day if by
overnight delivery, upon sending if by telefax, or if mailed in a
certified, post-paid envelope, upon the fifth (5th) calendar day after
the date such notice shall be postmarked. All notices to PMSC shall be
addressed to its General Counsel.
11.2 Neither party shall, voluntarily or by operation of law, assign this
Agreement or any of its rights or obligations hereunder without the
prior written consent of the other party. A merger shall not be deemed
an assignment for the purposes of this Agreement however, in the event
that FSI is merged into a competitor of PMSC as determined in PMSC's
sole discretion, PMSC may elect to terminate this Agreement upon
immediate notice on the same terms as provided at the end of Section
9.3 above.
11.3 The terms and conditions hereof shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns. Nothing in this Agreement, whether express or implied, shall
be construed to give any third party (other than successors and
permitted assigns of the parties) any legal or equitable right, remedy
or claim under or in respect to this Agreement or any covenants,
conditions or provisions contained herein.
19
11.4 PMSC and FSI covenant and agree, each to the other, that while this
Agreement is in effect between them, neither will directly or
indirectly induce or attempt to induce any employee of the other to
terminate his or her employment without the prior written consent of
the other. Nor will either party, without the prior written consent of
the other, offer employment to an employee of the other or to any
former employee of the other during the six (6) month period
immediately following such former employee's termination.
11.5 This Agreement and any Exhibits hereto: (i) constitute the entire
agreement between the parties and supersede and merge any and all
prior discussions, representations, demonstrations, negotiations,
correspondence, writings and other agreements and together state the
entire understanding and agreement between PMSC and FSI respecting the
subject matter of this Agreement; (ii) may be amended or modified only
in writings agreed to and signed by authorized contracting officers of
PMSC and FSI; and (iii) shall be construed performed and enforced in
all respects in accordance with the laws of the State of South
Carolina. This Agreement is independent of the 1993 License, and
neither shall be construed to be dependent on, contingent on, or in
consideration for the other.
11.6 The captions and Section numbers appearing in this Agreement are
inserted only as a matter of convenience and do not in any way define,
limit, construe or describe the scope or intent of such Sections or in
any way affect this Agreement.
20
11.7 If any provision of this Agreement or the application thereof is
hereafter held invalid or unenforceable the remainder of this
Agreement shall not be affected thereby, and to this end the
provisions of this Agreement are declared severable.
11.8 No failure or delay on the part of a party in exercising any right
hereunder will operate as a waiver of any such right. Pursuit of
certain remedies with respect to all or some of the rights granted
hereunder shall not bar other remedies with respect to the rights
granted hereunder. No waiver of any provision of this Agreement shall
be deemed or shall constitute a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a continuing
waiver.
11.9 NEITHER PARTY SHALL BE RESPONSIBLE FOR ANY INDIRECT OR CONSEQUENTIAL
DAMAGES OR FOR ANY LOST PROFITS WHICH MAY RESULT FROM ITS PERFORMANCE
OR FAILURE TO PERFORM HEREUNDER WITH THE EXCEPTION OF RIGHTS
EXPRESSLY ARISING UNDER THE TERMS OF THIS AGREEMENT, INCLUDING
WITHOUT LIMITATION SECTION 2.5, THE PARTIES' EXCLUSIVE REMEDY FOR
BREACH OF THIS AGREEMENT SHALL BE TERMINATION OF THE AGREEMENT IN
ACCORDANCE WITH THE TERM AND TERMINATION SECTION, AND COLLECTION OF
FEES AND OTHER AMOUNTS EXPRESSLY PROVIDED FOR HEREIN AS DAMAGES.
11.10 PMSC and FSI hereby specifically agree and acknowledge that they are
not creating a partnership or joint venture hereby and that neither
party, nor any employee of either party, shall be deemed an employee
or agent of the other party for any purpose.
11.11 In connection with activities pursuant to this Agreement, each party
hereto shall bear its own costs and expenses except where otherwise
expressly provided. Each party shall be responsible to invoice its
End User licensees for sales and use taxes on all ILC and MLC where
applicable under state law. For purposes of the above, the parties
agree that Software is not custom software however described under
any applicable state law. Any custom forms development efforts shall
be separately charged for as services and not made part of the
Software. Both parties agree upon reasonable request to have its
Controller or similar financial official certify reports of payment
amounts due the other party.
11.12 All references to PMSC and to FSI shall include any controlled or
majority owned subsidiaries of each as if they were expressly named
and included. The covenants, obligations and warranties of this
Agreement shall be deemed to apply to any controlled or majority
owned subsidiaries of each of the parties such that a breach or
violation of any of such covenants, obligations or warranties by any
such controlled or majority owned subsidiary shall be deemed to be a
breach by FSI or PMSC, respectively, and shall give rise to the same
remedies against FSI or PMSC as if FSI
21
or PMSC had itself breached or violated such provision. However,
nothing herein grants a direct right of action against or places a
party in privity with any such subsidiary.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the day and year first above
written.
PMSC FSI
POLICY MANAGEMENT SYSTEMS FORMMAKER SOFTWARE, INC.
CORPORATION
BY: BY:
---------------------------- -----------------------------
(AUTHORIZED SIGNATURE) (AUTHORIZED SIGNATURE)
---------------------------- -----------------------------
(NAME and DATE) (NAME and DATE)
---------------------------- -----------------------------
(TITLE) (TITLE)
22
