EXHIBIT 10.2
AMENDMENT NO. 1
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TO
INTERNATIONAL DISTRIBUTOR AGREEMENT
BETWEEN
STERLING COMMERCE INTERNATIONAL, INC.
AND
STERLING SOFTWARE INTERNATIONAL, INC.
THIS AMENDMENT NO. 1 (this "Amendment") is made and entered into as of
January 31, 1997, by and between Sterling Commerce B.V., a private limited
liability company organized and existing under the laws of The Netherlands
("SCII"), and Sterling Software International, Inc., a Delaware corporation
("Distributor"). Capitalized terms used herein that are not otherwise defined
shall have the meanings ascribed to them in the Agreement (as hereinafter
defined).
WHEREAS, Sterling Commerce International, Inc., a Delaware corporation
("SC International"), was an original party to the Agreement;
WHEREAS, effective January 1, 1997, SC International assigned all of its
rights and obligations under the Agreement to SCII, a wholly owned subsidiary of
SCI; and
WHEREAS, SCII and Distributor desire to clarify and/or correct certain
provisions under the Agreement;
NOW, THEREFORE, effective as of the date hereof, the International
Distributor Agreement, dated as of March 4, 1996, between SC International and
Distributor (together with all exhibits and schedules thereto, the "Agreement"),
is hereby amended as follows:
1. References in the Agreement to SCII shall mean and refer to Sterling
Commerce B.V., a private limited liability company organized and existing under
the laws of The Netherlands.
2. The first "WHEREAS" clause of the Agreement is deleted in its entirety
and replaced with the following:
WHEREAS, Sterling Commerce (Mid America), Inc. ("ISG"), a subsidiary of
SCI, and the Communications Software Group ("CSG"), an operating group of
SCI (ISG and CSG, collectively the "SCI Companies"), market, license,
install, maintain and support certain computer software products, including
the Products (as defined below);
3. Section 1.a.: The first sentence of Section l.a. is deleted and
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replaced with the following:
Except as otherwise provided in Section 1.d., SCII hereby grants to
Distributor, and Distributor hereby accepts from SCII, the exclusive right
to market, sublicense, install, maintain and support the Products within
the Territory, either directly and/or through such wholly owned
subsidiaries of SSW (collectively, "SSW Subdistributors") and unaffiliated
third parties (collectively, "Third-Party Subdistributors" and, together
with SSW Subdistributors, "Subdistributors") as may be appointed by
Distributor in accordance with this Section 1.a.
4. Section 1.b.: Reference to "that SCII makes available to Distributor"
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in the second line of Section 1.b. is deleted and replaced with "that SCII makes
available for third-party distribution within the Xxxxxxxxx".
0. Section 1.c.: The first sentence of Section 1.c. is deleted and
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replaced with the following:
"Territory" means everywhere in the world except the United States of
America, its territories, Puerto Rico and Canada.
6. Section 1.d. The following Section 1.d. shall be inserted:
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d. Services. Distributor acknowledges that SCII markets and provides,
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and is not prohibited under this Agreement from marketing or
providing, directly or through third parties, Commerce Services (as
herein defined) to entities located in the Territory, and that
Distributor is not authorized to market or provide the Commerce
Services. Furthermore, Distributor acknowledges that specialized
software, such as the Enabling Software (as herein defined), is
required to enable and facilitate the use and provision of, and is an
integral part of, certain of the Commerce Services. Accordingly, and
notwithstanding anything in this Agreement to the contrary, SCII
specifically shall have the right within the Territory to directly or
indirectly market, sublicense, install, maintain and support:
(A) GENTRAN:Basic, GENTRAN:Director, GENTRAN: Integrator,
GENTRAN: SmartForms and any other similar PC software products
marketed under the GENTRAN tradename (collectively, the "Enabling
Software") the principal purpose of which is to enable or facilitate
SCII's service offerings, marketed under the COMMERCE tradename,
including without limitation COMMERCE:Network, COMMERCE:Exchange and
other substantially similar service offerings (all such services
collectively, "Commerce Services"); provided that the Enabling
Software is marketed in the Territory by SCII and/or its
subdistributors only in connection with the Commerce Services; and
(B) Products that are a component of, integrated with, embedded
in or provided as an add-on to COMMERCE:Exchange or any substantially
similar service offering of SCII or its subdistributors (collectively,
"Exchange
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Components"). Distributor shall not be entitled to any payment
hereunder with respect to Exchange Components and shall not market or
sublicense Products as Exchange Components to licensees of Commerce
Exchange or substantially similar service offerings ("Exchange
Customers"). Notwithstanding the foregoing provisions of this clause
(B), if Distributor or any Subdistributor independently brings to
SCII's attention a potential purchaser of Exchange Components not
theretofore known to SCII (or its subdistributors or affiliates),
Distributor or such Subdistributor shall be entitled to a royalty from
SCII for those Products (I) actually delivered to and licensed by such
purchaser, and (II) with respect to which Distributor or such
Subdistributor would have had full right to market and sublicense if
not a component of, embedded in or provided as an add-on to
COMMERCE:Exchange or any substantially similar service offering of
SCII or its subdistributors (the "Exchange Offerings"). The amount of
such royalty for any such referral shall be fifty percent (50%) of the
relative value attributable to such Exchange Components within the
particular Exchange Offering. In determining such value, consideration
will be given to the relative functionality and significance of the
different pieces of software contained in such Exchange Offering
(including such Exchange Components), the relative list prices of such
software and overall discounts, if any. The parties shall cooperate
and work in good faith in making such determinations.
In order to avoid interfering with SCII's Commerce Services business,
neither Distributor nor any Subdistributor shall market or sublicense
Enabling Software to the following persons or entities:
(i) A person or entity that is a party to or an express third-
party beneficiary under an agreement for the provision of
Commerce Services; or
(ii) A person or entity that is a subdistributor or remarketer of
Commerce Services or a Prospect (as herein defined). A
Prospect shall be any person or entity that is in
discussions or negotiations with SCII (or an affiliate of
SCII) to become a subdistributor or remarketer of Commerce
Services, as identified in a written notice to Distributor.
From time to time, SCII shall provide Distributor with the
list of such subdistributors and remarketers and Prospects.
Subject to the prohibitions set forth in clauses (i) and (ii) above,
Distributor and its Subdistributors may market, sublicense, install,
maintain and support Enabling Software within the Territory. Without
limiting the provisions above, in the event Distributor, an SSW
Subdistributor or Third-Party Subdistributor sublicenses (x) Enabling
Software to any of the persons or entities in clauses (i) or (ii)
above or (y) Products as Exchange Components to Exchange Customers,
the percentage royalty payable to SCII pursuant to Section 6 of this
Agreement shall be 100% in the case of a sublicense by Distributor or
an SSW Subdistributor, and 200%, in
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the case of a sublicense by a Third-Party Subdistributor.
SCII and Distributor and its Subdistributors acknowledge and agree
that they will cooperate and communicate with one another in good
faith and in a timely and responsive manner in order to promote full
compliance with the provisions of this Section 1(d) and to avoid
interfering with, and to in fact maximize, their respective marketing
efforts within the Territory. Without limiting the generality of the
preceding sentence, when SCII or Distributor (or any Subdistributor)
is uncertain as to whether a prospective customer (whether end-user,
reseller or otherwise) has a relationship that would be subject to the
foregoing provisions of this Section 1(d), the party confronting such
uncertainty shall make due inquiry of the other party hereunder in
order to resolve such uncertainty as promptly as possible.
7. Section 2.e.: The fifth sentence of Section 2.e. is deleted and
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replaced with the following:
Neither Distributor nor any Subdistributor will make any material
modification or amendment to the Product Use Contract without SCII's prior
written approval, such approval to be given on a case-by-case basis and not
to be unreasonably withheld. For purposes of this Agreement, and without
limiting the foregoing, any modification or amendment that has the effect
of modifying the provisions of Sections 2 (Grant and Use of Software), 3
(Title and Confidentiality, 5 (Warranty and Liability), and 7 (Services)
of the Product Use Contract shall be deemed material.
8. Section 2.f.: Reference to "then current maintenance agreements" in
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the first sentence of Section 2.f. shall be deleted and replaced with "under
then current Product Use Contracts."
9. Section 4.b.: The first sentence of Section 4.b. is deleted and
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replaced with the following:
SCII may accept or reject at its discretion any non-standard order or non-
standard Product Use Contract that has been materially modified or amended
without SCII's prior written consent as required under Section 2.e, subject
to any written and binding commitment that SCII may hereafter make to
Distributor outside of this Agreement.
10. Exhibit C: The third paragraph under the heading DISTRIBUTOR PROFILE
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is hereby deleted and replaced with the following:
Future financials both with and, to the extent publicly available, without
SCII Product representation;
11. Exhibit D: Exhibit D of the Agreement is hereby amended as follows:
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(i) Paragraph 2.1: Paragraph 2.1 is deleted in its entirety and replaced
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with the following:
In consideration of the payment by Customer of the Product Use
Charge(s) as provided for in this Contract and more specifically
defined in the Schedule and subject to the terms and conditions set
forth in this Contract, Licensor hereby grants to Customer a personal,
non-transferable and non-exclusive right to execute one copy of the
applicable Software only at the designated Computer Installation(s)
specified in the Schedule.
(ii) Paragraph 2.6: The phrase "during the term of this Contract," in the
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first line of Paragraph 2.6 is hereby deleted. The brackets
surrounding the word "Australia" are hereby deleted.
(iii) Paragraph 4.2: The brackets surrounding the phrase "the currency of
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the Installation Country" in Paragraph 4.2 are hereby deleted.
(iv) Paragraph 6.3: The reference to "Paragraph 7.3" in the last line of
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Paragraph 6.3 is hereby deleted and replaced with "Paragraph 6.3."
(v) Paragraph 6.5. After "Paragraph 2.6," insert "Section 3.0."
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As soon as practicable after date hereof, SCII will prepare an amended and
restated Exhibit D incorporating solely those amendments set forth in this
Section 9.
12. On and after the date hereof, each reference in the Agreement to "this
Agreement," "hereunder," "herein" or words of like import referring to the
Agreement will be a reference to the Agreement as amended by this Amendment
No.1.
13. Except as specifically amended by this Amendment No.1, the Agreement
will remain in full force and effect and is hereby ratified and confirmed.
STERLING COMMERCE B.V. STERLING SOFTWARE
INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxxx, Xx.
Title: Managing Director Title: Vice President
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