EXHIBIT 10.1
AGREEMENT
BY AND AMONG
C-BRIDGE INTERNET SOLUTIONS, INC., CEE INCORPORATED
AND
CAMBRIDGE EXECUTIVE ENTERPRISES, INC.
This Agreement (the "Agreement") is made by and among C-Bridge Internet
Solutions, Inc., a Delaware corporation ("CBIS"; fax number 000-000-0000), CEE
Incorporated, a Massachusetts corporation ("CEE"), and Cambridge Executive
Enterprises, Inc., a Delaware corporation ("Cambridge"; fax number for CEE and
Cambridge 617-528-1777)), all with business addresses of 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000 ("219 Vassar Street") as of October 8, 1999 (the "Effective
Date").
WHEREAS, the parties hereto have entered into an Agreement dated the 30th
day of April 1999 ("the "April Agreement"); and
WHEREAS, the April Agreement provides that the parties shall enter into
such other documents as may be necessary or convenient to fulfill the intent of
the April Agreement; and
WHEREAS, the parties hereto agree that this Agreement is necessary and
convenient in order to fulfill the intent of the April Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Services Provided.
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(a) C-bridge shall provide CEE and Cambridge with all services necessary
for CEE and Cambridge to operationally fulfill all of its educational
services agreements including without limitation those certain
agreements with, respectively, Oracle Corporation ("Oracle") dated as
of February 16, 1999, Hewlett Packard Company ("HP") dated as of
February 16, 1999, Xxxxxx Associates, Inc. dated as of December 1,
1998, and Informix Software, Inc. dated as of February 13, 1998, as
amended (the "Contracts") in the manner and at the same level of
quality that they were fulfilled previously by Cambridge (the
"Services").
(b) C-bridge shall be the exclusive provider of all Services necessary for
CEE or, Cambridge to fulfill operationally their obligations under the
Contracts until the first anniversary hereof and shall be a non-
exclusive provider thereafter.
2. Personnel.
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(a) C-bridge has hired certain employees of Cambridge ("Cambridge
Employees") in order to provide the services specified in Section 1
above. Should the employment of any of such Cambridge Employees by C-
bridge terminate for any reason, C-bridge shall promptly notify CEE
and begin its customary procedures to replace the employee. CEE must
approve the hiring of any such replacement employees and their further
respective replacements, if any, throughout the Term and such approval
shall not be unreasonably withheld.
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(b) C-bridge must obtain the approval of CEE if it wishes to change the
duties of any Cambridge Employees involved in the delivery of the
Services and such approval shall not be unreasonably withheld.
(c) C-bridge will maintain the same level of headcount as currently
involved in the delivery of the Services.
3. Compensation and Expenses.
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(a) As a fee for the service provided pursuant hereto, CEE will pay C-
bridge $479,049.00 in advance on the first business day of every month
throughout the Term.
(b) For services rendered pursuant hereto and performed elsewhere than in
the vicinity of 000 Xxxxxx Xxxxxx, CEE shall reimburse C-bridge for
all out-of-pocket travel, food, lodging, shipping, communication, and
related expenses incurred in the course of rendering such services
("Reimbursable Expenses") to the extent that it receives reimbursement
pursuant to a Contract. All Reimbursable Expenses shall be
appropriately documented in reasonable detail by C-bridge.
(c) If for any reason, C-bridge ceases to maintain the headcount
requirement of Section 2(c) and CEE or Cambridge provides such
headcount themselves, whether through employment or contract, then CEE
may invoice C-bridge, and C-bridge shall pay, for CEE's or Cambridge's
costs of such headcount for such time periods as such headcount is so
maintained, provided that the amount of CEE's invoice to C-bridge
shall not exceed the total compensation plus payroll tax expenses for
such headcount and be comparable to prior costs associated with the
headcount.
(d) All invoices rendered pursuant to paragraphs 3(b) and (c) hereof shall
be due and payable net 30 days from receipt.
4. Indemnity and Limitation of Liability.
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(a) Each party (an "Indemnifier") hereby agrees to defend, indemnify and
hold harmless the others from and against any and all claims, losses,
and expenses, including reasonable attorneys' fees and other costs of
litigation, based upon or arising out of any negligent or willful acts
or omissions of the Indemnifier.
(b) Notwithstanding the preceding paragraph, C-bridge's liability under
this Agreement is limited to the amount of the fee receivable by C-
bridge under the terms of this Agreement. In no event will C-bridge
have any liability for any special, indirect, or consequential damages
including, without limitation damages for lost profits or costs of
procurement of substitute goods or services, arising in any way out of
this Agreement under any cause of action, whether or not C-bridge has
been advised of the possibility of such damages. These limitations
will apply notwithstanding the failure of the essential purpose of any
limited remedy.
5. Assignment. C-bridge may not assign this Agreement without the
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approval of Cambridge or CEE. Cambridge or CEE may not assign this Agreement
with the approval of C-bridge unless such assignment is to an entity that holds
the Contracts in which case no approval is necessary.
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6. Period and Termination. This Agreement shall remain in full force and
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effect until Feb 8, 2004 subject to termination in whole or in part pursuant to
any of the following conditions:
6.1 By C-bridge. C-bridge shall have the right to terminate this
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Agreement, by giving CEE and Cambridge notice of termination, upon
the occurrence of any of the following events:
(a) CEE or Cambridge fails in a material way to perform its
obligations under this Agreement, and fails to cure or take
steps to cure such default within a ninety (90) day cure
period, except with respect to the payment of sums due
hereunder for which the cure period shall be sixty (60) days.
(b) the insolvency of Cambridge or CEE, the making by CEE or
Cambridge of an assignment for the benefit of their respective
creditors, the filing of a petition by or against CEE or
Cambridge in any court, whether or not pursuant to any statute
of the United States or of any state, in any bankruptcy,
reorganization, composition, extension, arrangement or
insolvency proceedings and such petition is not dismissed
within sixty (60) days thereafter; the appointment in any
proceedings of a receiver or trustee for all or any portion of
CEE's or Cambridge's property.
6.2 By CEE or Cambridge. CEE or Cambridge shall have the right to
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terminate this Agreement, by giving C-bridge notice of
termination, upon the occurrence of any of the following events:
(a) C-bridge fails in a material way to perform its obligations
under this Agreement, and fails to cure or take steps to cure
such default within a ninety (90) day cure period, except with
respect to the payment of sums due hereunder for which the
cure period shall be sixty (60) days.
(b) the insolvency of C-bridge, the making by C-bridge of an
assignment for the benefit of its creditors, the filing of a
petition by or against C-bridge in any court, whether or not
pursuant to any statute of the United States or of any state,
in any bankruptcy, reorganization, composition, extension,
arrangement or insolvency proceedings and such petition is not
dismissed within sixty (60) days thereafter; the appointment
in any proceedings of a receiver or trustee for all or any
portion of C-bridge's property.
(c) The termination of CEE's Contract with either HP or Oracle.
7. Stock Options. C-bridge has or has agreed to grant options to purchase
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190,000 shares of C-bridge common stock ("Stock") as directed by CEE. During
each subsequent 12 month period beginning on May 1st of each year throughout the
Term, C-bridge shall grant additional options to purchase 50,000 shares of Stock
to such persons and with such respective vesting schedules as CEE directs. If
for any reason a portion of such options does not vest, CEE may direct C-bridge
to reissue such portion.
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8. Confidential Information and Intellectual Property.
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(a)
(i) For purposes of this Agreement, "Confidential Information"
includes any scientific, technical, trade, or business secrets
of C-bridge, Cambridge, CEE, or any party to a Contract and any
scientific, technical, trade, or business materials that any of
them treat, or is obligated to treat, as confidential or
proprietary, including, but not limited to, products, know-how,
ideas, discoveries, inventions, developments and improvements,
whether or not reduced to practice and whether or not
patentable or copyrightable, belonging to any of them and
similar information obtained by or given to any of them about
or belonging to their respective suppliers, licensors,
licensees, partners, affiliates, customers, potential
customers, or others.
(ii) The definition of "Confidential Information" herein shall not
include Confidential Information which (A) was known by a party
prior to its disclosure by the other party; (B) is publicly
known through publication or otherwise through no wrongful act
of a party; (C) is received from a third party who rightfully
discloses it to a party without restriction on its subsequent
disclosure; (D) is disclosed pursuant to the lawful requirement
of a governmental agency or by order of court of competent
jurisdiction, or (E) is approved for release by written
authorization of the originating party.
(iii) The definition contained in this section 8(a) is intended to be
in furtherance, and not in limitation, of any rights possessed
by either party under any other confidentiality agreement or
intellectual property license made between any of the parties or
any party to a Contract.
(b) Each party hereto acknowledges that in the course of performing this
Agreement it will receive Confidential Information from the other and
shall not publish, copy, or disclose any such Confidential Information
except to employees or contractors who need such Confidential
Information in order to perform their duties hereunder and who are
bound as a term of their employment or contract not to disclose
Confidential Information.
(c) All materials prepared in the course of rendering the services to be
provided pursuant hereto shall be considered "works made for hire" and
the copyright and all other intellectual property rights pertaining
thereto are hereby assigned to CEE. C-bridge shall use its best
efforts to assist CEE in perfecting and defending all such
intellectual property rights. Notwithstanding the foregoing, C-bridge
shall own all intellectual property rights to the visual look and feel
of the computer screens used in the megademo demonstrations made
pursuant to the Contracts (the "Megademos"). Upon request, CEE will
deliver screen shots of the Megademos. Such deliveries shall be made
without warranties of any kind or technical documentation. C-bridge
hereby grants CEE a fully-paid, nonexclusive license to use the visual
look and feel of the computer screens used in the Megademos for any
purpose.
(d) Paragraphs 9(a), (b), and (c) shall survive the termination of this
Agreement and remain effective until the one year thereafter.
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9. General Provisions.
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(a) The relationship of C-bridge to CEE and Cambridge established by this
Agreement is that of independent contractors, and nothing contained in
this Agreement shall be construed to (i) give any party the power to
direct and control the-day to-day activities of the other, (ii)
constitute the parties as partners, joint ventures, co-owners or
otherwise as participants in a joint or common undertaking, or (iii)
allow any party to create or assume any obligation on behalf of the
other for any purpose whatsoever.
(b) This Agreement contains the entire understanding of the parties with
respect to the provision of any services by C-bridge to CEE and
Cambridge. No waiver, consent, modification, amendment, or change of
the terms of this Agreement shall be effective unless made in writing
and signed by the parties hereto. This Agreement supercedes all
previous agreements concerning the subject matter hereof, except that
C-bridge shall still be liable to pay the Promissory Note it made in
payment for the tangible assets of Cambridge it purchased pursuant to
the April Agreement.
(c) Neither party to this Agreement shall be liable to the other by reason
of any failure in performance of this Agreement in accordance with its
terms if such failure arises out of causes beyond the control and
without the fault or negligence of such party. Such causes include but
are not limited to acts of God or of the public enemy, acts of civil
or military authority, fires, strikes, unavailability of energy
resources, delay in transportation, riots, war, the state of Xxxx.
Xxxxxxx'x health, a lack of timely payments of fees or expenses by HP
or Oracle under their respective Contracts, or the breach of contracts
by third parties. A party so disabled shall promptly and in writing
advise the other party if it is unable to perform due to such a force
majeure event, the expected duration of such inability to perform, and
of any developments (or changes therein) that appear likely to affect
the ability of that party to perform any of its obligations hereunder
in whole or in part.
(d) All notices and other communications under this Agreement shall be in
writing and shall be deemed given when delivered personally, by
certified mail, return receipt requested, by reputable overnight
courier, or by confirmed facsimile transmission to the other party at
the address set forth above and to the attention of the signatory
below (or to such other address or fax number or to the attention of
such other person as a party may have specified by notice given to the
other party pursuant to this provision) and shall be deemed received
when actually delivered or refused.
(e) This Agreement shall be governed by and construed under the laws of
the Commonwealth of Massachusetts without regard to the principles of
conflict of law and all parties hereby consent to the personal and
exclusive jurisdiction and venue in the state and federal courts
sitting in the Commonwealth of Massachusetts. Process may be served on
either party by using the notice provisions of Section 9(d) above
except as prohibited by law.
(f) If any provision of this Agreement is held to be invalid by a court of
competent jurisdiction, the remaining provisions shall remain in full
force and effect. The parties agree to replace any invalid provision
with a valid provision which most closely approximates the intent and
economic effect of the invalid provision.
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
representatives to execute this Agreement as an instrument under seal effective
as of the date first set forth above.
C-BRIDGE INTERNET SOLUTIONS, INC
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: President and Chief Executive Officer
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CEE, INC.
By: /s/ Xxxx Xxxx
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Name: Xxxx Xxxx
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Title: Vice President and General Counsel
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CAMBRIDGE EXECUTIVE ENTERPRISES, INC
By: /s/ Xxxx Xxxx
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Name: Xxxx Xxxx
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Title: Vice President and General Counsel
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