EXHIBIT 10.26
AMENDMENT NO. 1
TO INTERNET APPLICATIONS DIVISION (IAD) RESELLER AGREEMENT
AND OUTSOURCING ADDENDUM
This Amendment No, 1 ("Amendment"), effective February 5, 2001, ("Effective
Date") is made by and between Sybase, Inc. ("Sybase") and Rainmaker Systems,
Inc, ("Rainmaker'"). This Amendment supplements and amends the terms of the
Internet Applications Division (IAD) Reseller Agreement (the "Reseller
Agreement") and the Outsourcing Addendum (for IAD Subscription Services) to the
IAD Reseller Agreement (the "Outsourcing Addendum") each between the parties
hereto and each dated March 22, 1999. As used herein, the term "Agreement" shall
collectively refer to the Reseller Agreement, the Outsourcing Addendum and all
Addenda, Schedule(s) and Attachment(s) thereto. Capitalized terms not otherwise
defined herein shall have the meaning set forth in the Agreement.
For good and valid consideration, the receipt and sufficiency are hereby
acknowledged, the parties hereby agree to amend the Agreement as follows:
1. A new Section 17 is added to the Reseller Agreement to read as follows:
"17. IAD Programs Marketing Funds. In addition to marketing funds related
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to Subscription Services (described in Section 7a) of the Agreement),
Sybase shall reserve funds in the amount of ___________ of all
amounts that Rainmaker has paid Sybase, as of January 1, 2000, solely for
new licenses of the IAD Programs (defined below) ordered by Rainmaker. In
the event the IAD Programs are not new licenses and are upgrades thereto
(i.e. additional seats/servers etc.), Sybase shall reserve ______________
of such amounts. Such funds are available only for the exclusive purpose
of Rainmaker's marketing and promoting of the IAD Programs. No more than
on a calendar quarter basis, Rainmaker shall report to Sybase its
commitments and expenditures associated with such funds, and any such
commitments or expenditures acceptable to Sybase shall be paid for by
Sybase to Rainmaker not to exceed the total amount of the aforementioned
funds. Any Rainmaker commitments or expenditures not pre-approved by
Sybase in writing shall not be paid for by Sybase. The foregoing shall
not include any updates under Subscription Service and is in addition to
the Marketing Fund for Subscription Service described in Section 7 of the
Outsourcing Addendum to the Agreement."
2. Schedule A of the Reseller Agreement is amended to add the following:
Programs (as defined in the Reseller Agreement) shall solely include:
PowerDesigner, PowerBuilder, PowerJ and Sybase Enterprise Application
Studio ("IAD Programs") running on all platforms generally available on
the then current Sybase Price List.
3. Schedule A of the Reseller Agreement is amended to change the discount
for IAD Programs from "Discounts for IAD development tool and design tool
software are specified in Sybase's then current IAD Reseller Price List"
to _____________________ discount off the then current North America
PartnerPrice List".
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as _______. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
4. Schedule A of the Reseller Agreement is amended to change the discount
percentage for sale of End-User Update Subscriptions from ______________
______ to ______________________ off the North America Partner Price List
for update subscriptions Sybase makes generally available to its
customers for the Programs.
5. The Outsourcing Addendum, is amended to add a new Section 5(f) therein to
read as follows:
"(f) Rainmaker Resources. During the term of this Agreement and solely at
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Rainmaker's expense, Rainmaker shall maintain a team of personnel
dedicated to selling Subscription Service comprising senior level sales
representatives, territory-level sales representatives and one (1) sales
consultant (i.e. technical resource) to support Rainmaker's sales efforts
related to the IAD Programs.
6. The Outsourcing Addendum is amended by deleting the current Section 5(e)
and replacing it with the following: "(e) Rainmaker's Marketing Efforts.
Rainmaker shall use reasonable commercial efforts to market the IAD
Programs and Subscription Service within the Territory defined in the
Reseller Agreement.
7. The Outsourcing Addendum is amended to add a new Section 7(b) therein to
read as follows:
"(b) Additional Marketing Start-up Funds. In addition to the Marketing
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Start-up Funds as defined in Section 4b) and specified in Exhibit B in
the Outsourcing Addendum, from the Effective Date of this Addendum
through March 31, 2000, Sybase shall pay up to a maximum of ________ for
the launch of start-up marketing efforts during such time, Rainmaker will
submit a detailed written marketing plan to Sybase for the provision of
such marketing services. Additionally, Rainmaker shall submit a detailed
report no later than fifteen days after the close of a calendar quarter,
of its expenditures and commitments associated with such marketing
efforts to Sybase. All such commitments and expenses (not to exceed
________) which are approved in advance by Sybase, In writing, during
such period shall be paid by Sybase. Sybase shall not be obligated to pay
for any Rainmaker expenses or commitments not approved by Sybase in
writing. In addition, Rainmaker agrees to contribute and expend in
additional ________ (solely at Rainmaker's expense) for marketing efforts
detailed in such marketing plan during such time period. Rainmaker shall
provide Sybase with a written report, no later than fifteen days after
the close of a calendar quarter detailing all such Rainmaker contributed
expenses for such marketing efforts."
8. Section 8(a) of the Outsourcing Addendum is deleted in its entirety and
replaced with the following for transactions on and after the Effective
Date of this Amendment:
"Subscription Service pricing covered by this Addendum shall be provided
to Rainmaker at ____________________ off Sybase's then current North
American Partner Price List for the applicable Subscription Service. In
no event shall Sybase dictate to Rainmaker the price at which Rainmaker
may sell the Subscription Service to the IAD Customer.
Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to omitted portions.
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Sybase will provide rainmaker with thirty (30) days written notice
regarding changes to such Price List."
9. Rainmaker understands and agrees that Sybase will not pay Rainmaker for
any Subscription Services sold by Sybase or an- authorized reseller or
distributor of Sybase to an IAD Customer.
10. Section 4(b) of the Outsourcing Addendum is amended to add the following:
"Sybase may provide an updated IAD Named Account Customer List ("Named
List") to Rainmaker from time to time at Sybase's discretion; such list
may be subject to change. For the purposes of the Outsourcing Addendum,
Sybase IAD Customers (in addition to the definition in the Outsourcing
Addendum) shall only include (also set forth in the attached Exhibit C
attached hereto): (i) the Non-Named accounts (Sybase accounts not
included in the Named List; (ii) Named accounts for whom Subscription
Service has been expired for more than 90 days, and that are not on the
excluded list; and (iii) those Named accounts that Sybase's Director of
Channel Sales has authorized Rainmaker to contact In writing from time to
time.
11. Section 5(a) of the Outsourcing Addendum is amended to change the
Quarterly Revenue Targets therein as follows:
January 2000--March 2000 __________
April 2000--June 2000 __________
July 2000--September 2000 __________
October 2000--December 2000 __________
January 2001--March 2001 __________
April 2001--June 2001 __________
July 2001--Sept 2001 __________
Oct 2001--Dec 2001 __________
Jan 2002--March 2002 __________
12. With respect to the Reseller Agreement, End Users (as such is defined in
the Reseller Agreement) may not include customers identified by Sybase as
Named. Notwithstanding the foregoing, Rainmaker may contact solely those
Named List Accounts that Sybase's Director of Channel Sales has
authorized Rainmaker to contact in writing.
13. With respect to the Marketing Fund for Subscription Service described in
Section 7(a) of the Outsourcing Addendum to the Agreement, and the
Marketing Fund described in 7(b) as added by Section 1 of this Amendment,
within five (5) business days following the end of each calendar month,
Rainmaker shall provide Sybase with reports covering the immediately
preceding month detailing: (i) the beginning balance for the Marketing
Fund; (ii) activities and amounts to be expensed against the Marketing
Fund; (iii) additional monies accrued towards the Marketing Fund during
the month; and (iv) ending balance for the Marketing Fund. Additionally,
within five (5) business days following the end of each calendar quarter,
Rainmaker shall provide Sybase with a report covering the immediately
preceding quarter that details the return of investment pertaining to
activities that are expensed to each of the Marketing Funds. Such
quarterly
Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to omitted portions.
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report shall, at a minimum, include activities expensed to the Marketing
Fund, the amount expensed and revenues attributable to such specific
activity.
14. Section 9(b)(i) of the Outsourcing Addendum is deleted and replaced by
the following: "9(b)(i) Rainmaker does not meet _________________________
of its Quarterly Revenue Target specified in Section 5(a) of the
Outsourcing Addendum;"
15. Term. The second sentence in Section 8 of the Agreement, and all of
Section 9a) in the Outsourcing Addendum, are replaced with the following
new sentence:
After the initial term of this Agreement ends, this
Agreement and all Amendments will automatically renew on
an annual basis unless terminated by either party with
written notice to the other party at least thirty (30)
days prior to the renewal date.
Except as amended above, the Agreement shall remain unchanged and in full force
and effect. In the event of a conflict between this Amendment and the Agreement,
the terms and conditions of this Amendment shall prevail.
SYBASE, INC.: RAINMAKER SYSTEMS, INC.:
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxx Xxxxxxx
Title: Senior Corporate Counsel Title: VP Sales & Marketing
Date: ____________________________ Date: February 5, 2001
Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to omitted portions.
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EXHIBIT C
IAD CUSTOMERS TO WHOM USPS MAY BE MARKETED
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Business Rules USP USP Upgrades New 10 pack
New renewal license of
support
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Non-Named Accounts ___ ___ ___ ___ ___
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Named Accounts
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. 90 days after lapse of USP (except for ___ ___ ___ ___ ___
companies on excluded list)
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. USP attachment after sale of new ___ ___ ___ ___ ___
license and approved by
Sybase (within 30 days of sale)
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Notes:
1/st/ year USP sales need to be reported back to: Sybase Support Renewal
Department, 000 Xxxxxxxx Xxxx, Xxxxxxx XX 00000.
EXHIBIT C
Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to omitted portions.
