Exhibit 10(a)
OPERATING AGREEMENT
BETWEEN
COMPUTERVISION CORPORATION
AND
CVSI, INC.
This agreement is entered into on July 18, 1997 and effective as of the
Effective Date (as defined herein), by and between Computervision Corporation, a
Delaware corporation, located at 000 Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000
("CV"), and CVSI, Inc., a Delaware corporation, located at 000 Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxxxxxxx 00000 ("CV Services").
RECITALS:
A. CV will transfer the Business (as defined below) to CV Services and its
subsidiaries ("CVSI") effective as of the Effective Date pursuant to
transactions contemplated by the Stock Purchase Agreement dated July 11,
1997 between CV and CVSI Acquisition Co., L.L.C., a Delaware limited
liability company (the "Purchase Agreement").
B. CV and CV Services each desire to enter into this agreement to provide for
the smooth transition of the Business (as defined below) from CV to CVSI
while continuing to meet customer support needs, including, among other
things, (i) the terms of continued operation of the Business by CVSI, and
(ii) the provision of services by CV and its subsidiaries to CVSI and by
CVSI to CV and its subsidiaries during a transition period and (iii) the
distribution of CV Products by CVSI.
NOW, THEREFORE, for good and valuable consideration, the parties agree as
follows:
1.0 DEFINITIONS
Throughout this Agreement and the Exhibits and Schedules hereto, the
following words and expressions shall have the following meanings:
1.1. "Agreement" shall mean this agreement and the Exhibits and Schedules
attached hereto.
1.2 "Business" means the business and operations conducted by CV and its
subsidiaries consisting primarily of providing the OSS Services other than
the Excluded Subsidiaries.
1.3 "Customer Contracts" shall mean agreements with End-Users for OSS Services.
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1.4 "CV Products" shall mean the family of software products that package
vaulting, data management, configuration management and workflow management
functions (currently known as Optegra) and such updates for such products
as CV may hereafter develop and the Standard General Markup Language (SGML)
burst and recompile modules that have yet to be formally released as
Optegra modules or as a product to the extent developed and released by CV.
1.5 "Effective Date" shall mean the Closing Date as defined in the Purchase
Agreement.
1.6 "End-User" shall mean any customer which purchases OSS Services.
1.7 "Foreign Companies" shall have the same meaning as is ascribed to such term
in the Purchase Agreement.
1.8 "OSS Services" means the maintenance and support services for hardware,
operating system software, networking software, layered software and
upgrades thereto, as well as network design, implementation, management and
security, logistics management, operations management, facilities
management, systems integration, database support, consulting support,
training, installation services and hardware product sales known as Open
Services Solutions and the provision of spare parts and repair service to
CV's international distributors, as set forth on Schedule 1.8. In
addition, OSS Services shall include the sale of Sun Microsystems hardware
in Japan and the resale by CVSI of Sun Microsystems hardware on a preferred
basis for CV (as described in Section 3.4 hereof). OSS Services are
provided at various levels of service as set forth on Schedule 1.8.
1.9 "Person" shall include bodies corporate, unincorporated associations and
partnerships.
2.0 DESIGNATION OF CVSI AS "CV'S EXCLUSIVE WORLDWIDE PROVIDER FOR OPEN SERVICE
SOLUTIONS SERVICES"
2.1 Designation
2.1.1 Subject to the conditions set out in this Agreement and subject to
arrangements existing on the Effective Date pursuant to which CV
distributors provide OSS Services in certain geographic regions on behalf
of CV, CV hereby will refer to CVSI as CV's "Exclusive Worldwide Provider
for Open Service Solutions Services." During the term hereof, CV shall
promote the use of CVSI by its customers who request OSS Services and
shall engage CVSI for the provision of OSS Services unless otherwise
instructed by its customers. Notwithstanding the foregoing, if CV enters
into a joint venture or partnership for a major business opportunity with
a customer in which the services to be provided by the partner overlap the
OSS Services, CV shall consider retaining CVSI as a subcontractor for the
provision of OSS Services.
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2.1.2 For the purposes of promotion and advertising of OSS Services, CV will
refer to CVSI as its Exclusive Worldwide Provider for Open Service
Solutions Services.
2.2 Service Provider to CV
CVSI will be the exclusive provider of OSS Services worldwide to CV for
CV's internal use as set forth in the Support Services Agreement between CV
Services and CV, a form of which is attached hereto as Exhibit A, except
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where arrangements exist pursuant to which such services are currently
being provided by a third party and systems running SAP and installed at
CV's corporate headquarters (all of such arrangements which are material
being set forth on Schedule 2.2 hereto).
2.3 Support of Third-Party Relationships
CV shall use reasonable efforts to support CVSI efforts to establish
relationships with third parties such as SunService and CACI.
3.0 SUBCONTRACTING SERVICE BY CVSI
3.1 OSS Services
CVSI shall serve as CV's exclusive provider for OSS Services on a
subcontract basis for customers of CV in the event that such customer has
entered into a contract with CV to provide OSS Services and such contract
is to be assigned to CVSI pursuant to the Purchase Agreement and has not
been terminated or transferred pursuant to the Purchase Agreement. CVSI
shall provide CV with such OSS Services on a subcontract basis and shall
continue to provide the software maintenance services for CV Products in
Australia, for PDGS in the United Kingdom and for CV's PDGS software
product installed at Ford and other customers for whom CVSI is providing
PDGS support on the Effective Date through CVSI personnel located in
Germany that it provided on the Effective Date as more fully set forth on
Schedule 3.1A, each to be provided at the prices set forth on Schedule
3.1B. After expiration of the initial term, the term of this arrangement
will be renewed automatically on each anniversary of the Effective Date for
an additional one (1) year period unless either party gives notice to the
other party 180 days prior to the expiration of the current term of its
intention to terminate this arrangement.
3.2 EPD Implementation Services
CV and CVSI shall negotiate in good faith an arrangement pursuant to which
CVSI shall provide implementation services (other than OSS Services) for
CV's Electronic Product Definition (EPD) products within 90 days after the
Effective Date.
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3.3 Medusa Services
CVSI shall provide, or shall cause to be provided through third parties
reasonably acceptable to CV, first call support services in Germany for
CV's Medusa line of products as set forth on Schedule 3.3 hereto (the
"Medusa Services") for an initial period of three (3) years from the
Effective Date. CV shall remain responsible for providing all other levels
of support. CV shall pay to CVSI $1,500,000 per year for providing the
Medusa Services in equal monthly installments of $125,000 due and payable
monthly in arrears on the last day of each month. After expiration of the
initial term, the term of this arrangement will be renewed automatically on
each anniversary of the Effective Date for an additional one (1) year
period unless either party gives notice to the other party 180 days prior
to the expiration of the current term of its intention to terminate this
arrangement.
3.4 Preferred Reseller Services
CV shall make CVSI the preferred reseller of Sun hardware to any of CV's
customers who inquire as to the purchase of Sun hardware for a minimum term
of three years, with the parties to use their reasonable best efforts to
extend the term of this arrangement beyond the minimum term, for so long as
CV has a hardware referral agreement with Sun Microsystems or for so long
as CV has the ability to appoint a preferred hardware reseller, whichever
is greater. The Liason Committee (as defined below) shall develop the
process by which CV shall refer customers desiring to purchase Sun hardware
to CVSI. CV shall provide CVSI such information relating to the Sun
hardware referral program as CVSI shall reasonably request.
3.5 Limit of Rights
Subject to the provisions of Section 3.3, and except (i) in Australia with
respect to CV Products, (ii) for PDGS in the United Kingdom and (iii) with
respect to the PDGS software product installed at Ford and other customers
being serviced by CVSI personnel located in Germany as of the Effective
Date (for which CVSI shall continue to provide the software maintenance
services it provided on the Effective Date) no other right is granted under
this Agreement to CVSI to maintain any CV software products, and CV shall
continue to have the sole and exclusive right to maintain CV software
products and to license, appoint or otherwise contract with other Persons
to maintain CV software products unless otherwise agreed. Nothing
contained in this Agreement shall be deemed or construed to prohibit CVSI
at any time from furnishing the same or similar services for products
marketed by CVSI or entities other than CV.
3.6 Additional Services
CV may from time to time request CVSI to provide certain products and
services other than the OSS Services. CV and CVSI shall agree on a
schedule of service
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planning and implementation, payment, pricing and terms and conditions for
performing such activity. If the parties cannot agree after reasonable
efforts upon an appropriate schedule within fourteen (14) days after the
commencement of such discussions, CV shall be entitled to use any third
party of its choice for such service.
3.7 Preferred Supplier of Services in Connection with Software Implementation
When (i) CV proposes the sale or plans the implementation of CV software
solutions to CV customers, or (ii) CV uses a subcontractor or an entity
acting as an outsource services provider (the "Outsourcer") to deliver CV
software implementation services to CV customers, CV shall introduce, or
shall cause any Outsourcer to introduce, CVSI to such customers as the
preferred supplier of the tasks set forth on Schedule 3.7. CVSI shall be
responsible for defining, proposing and selling the specific tasks to the
customer. At the request of CV or the Outsourcer, CVSI shall make
available at no charge the appropriate level (such level to be reasonably
determined by CVSI) of pre-sales assistance to support the sales effort of
CV (or the Outsourcer, as applicable). If CVSI does not respond within 10
business days of receipt of a request from CV, or does not wish to
participate in the total proposal/pre-sales phase, then CV and any such
Outsourcer shall have the right to engage another provider of the services
set forth on Schedule 3.7.
In the event that the customer is receiving the tasks set forth on Schedule
3.7 from an entity other than CV, CVSI or an Outsourcer, then CV shall
inform, or shall cause any Outsourcer to inform, CVSI of the material facts
and circumstances of the matter as known by CV and, at CVSI's request, CV
shall, or shall cause any Outsourcer to, use reasonable efforts to arrange
a meeting for CVSI to discuss with the customer the possibility that CVSI
may provide the desired services.
3.8 Finland Services
During the term of this Agreement, CVSI shall provide advisory and
management services related to the disposition or winding up of Oy
Computervision AB (the "Finland Business") from the Effective Date until
such time as the Finland Business is sold or wound up. CVSI shall provide
such services at no charge.
3.9 ELC/EVL Services
During the term of this Agreement, CVSI shall provide operational advisory
services related to the disposition of Extended Vision Logistics
International B.V. ("EVL") and Computervision International Distribution
B.V. (individually, "ELC," and together with EVL, the "Dutch Logistics
Business") until such time as certain assets that are owned by the Dutch
Logistics Business are transferred to CVSI from CV, the methodology of such
transfer being described in Schedule 3.9 hereto. CVSI shall provide such
services at no charge.
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4.0 CONTRACT ASSIGNMENT
4.1 CVSI and CV will each give full support at all levels of each respective
company and actively participate in communicating with CV Customers and
third parties to accomplish the assignment or subcontracting of Customer
Contracts, the termination of Customer Contracts at the expiration of their
term with CV and the transition of End-Users to CVSI as contemplated by
Section 3.4 of the Purchase Agreement. CV shall not make any assignment
which requires the payment of any money by CVSI or making of any concession
by CVSI to a CV customer without CVSI's written consent.
4.2 CV and CVSI will each give full support at all levels of each respective
company and actively participate with CVSI in the assignment effort,
including entering into subcontracting arrangements with CVSI in accordance
with the provisions of Section 3 for End-Users that are not willing to have
their contracts assigned to CVSI until the end of the then current Customer
Contract term.
4.3 At the end of each month in which CVSI provides subcontracting services, CV
will advance to CVSI, by wire transfer to an account designated by CVSI,
the sum of (i) that month's billing (including all prepaid amounts as
collected and not prorated over the service period) that CV has collected
from End-Users for any Customer Contracts which have been subcontracted to
CVSI for OSS Services rendered by CVSI and (ii) any amounts payable in
respect to Customer Contracts which are 60 days or more overdue unless the
customer's withholding of payment is due to CVSI's failure to
satisfactorily perform OSS Services.
4.4 CV agrees to forward to CVSI a copy of any consent to the assignment of a
Customer Contract obtained and received by CV after the Effective Date.
5.0 CV PROVIDED SERVICES
CV shall assist CVSI with the transfer of the Business and other
transactions contemplated hereunder and under the Purchase Agreement by
providing the following services for the periods indicated in Section 8
below.
5.1 CV shall sublet the facilities set forth in Schedule 5.1 (the "Facilities")
to CVSI for such period as is set forth in Schedule 5.1 beside the
respective facility, pursuant to a sublease or license (as indicated on
Schedule 5.1) to be entered between the parties substantially in the form
attached hereto as Exhibit B which will provide for terms of occupancy on
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substantially the same terms and conditions (other than term, rental charge
and amount of space occupied) as contained in the lease or sublease to
which CV is a party. CVSI shall pay CV the rental charge for each Facility
that is set forth on Schedule 5.1 hereto. Such sublease or license shall
contain the provisions set forth in Section 7 of this Agreement. If CV
terminates any lease or sublease underlying any
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such sublease or license to which CV Services or any of its subsidiaries is
a party prior to the expiration of the then current term, and the validity
or terms of such sublease or license are consequently negatively affected,
CV shall pay CVSI the amount equal to any increase in rental charges to
which CVSI is subjected due to such termination, including but not limited
to, increases in rental charges due to a relocation by CV Services or any
of its subsidiaries resulting from such termination, and any moving
expenses incurred by CV Services or any of its subsidiaries pursuant to
such relocation.
5.2 CV shall provide CVSI access to CV's internal computer systems and network,
E-Mail and Internet access (the "Corporate Network Services") on a basis
comparable to that provided to CVSI as of the Effective Date. CVSI shall
pay CV $50,000 per month for the Corporate Network Services. CV and CVSI
shall each contribute equal resources necessary to separate the Class B
licenses as referenced in Schedule 3.2 to the Purchase Agreement.
5.3 CV shall provide CVSI use of telephone equipment, long distance service and
data telecommunication (the "Telecommunications Services") at each of the
Facilities where CV and CVSI will share a telephone exchange (as indicated
on Schedule 5.1) on a basis comparable to that provided to CVSI as of the
Effective Date. CV also shall provide CVSI with a separate phone line at
the Bedford, Massachusetts Facility. CVSI shall pay CV for the
Telecommunications Services its pro rata portion, based on the cost
allocation methodology employed as of December 31, 1996 (the "Standard
Methodology") of the cost of telephone equipment, total telephone usage
costs and data telecommunications costs in Facilities. In Facilities where
actual costs for Telecommunications Services are separately determined as
of the Effective Date, CVSI will pay CV the actual cost to CV of the
Telecommunications Services used by CVSI in such Facilities.
5.4 CV shall provide CVSI accounts receivable, collection, payroll and accounts
payable services, treasury services, order management, maintenance of
CVSI's general ledger on the SAP system and related accounting services and
CV shall oversee and coordinate the engagement of any necessary providers
of tax administration and preparation services and shall provide advice in
connection with the filing and payment of sales and use taxes except for
jurisdictions in which Foreign Companies (as defined in the Purchase
Agreement) are located, all in accordance with past practice consistently
applied (the "Finance and Accounting Services"). CVSI shall provide
reasonable assistance to CV in the provision of the Finance and Accounting
Services. CV shall provide the Finance and Accounting Services to CVSI
free of charge; provided that CVSI shall be responsible for all
compensation and related expenses of all employees of CVSI who assist in
the provision of such services to CVSI.
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5.5 CV shall grant CVSI a non-exclusive, non-transferable, royalty-free right
and license to use the name "CV" as part of the "CV Services" trademark and
logo, and the "CV Services" and "CV Services International" trademarks that
have been applied for by CV, in connection with the provision of OSS
Services for a period of three years and the letters "CV" in connection
with their use in any trademark or logo using the name "CVSI" in perpetuity
pursuant to the Trademark License Agreement attached as Exhibit C hereto.
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5.6 CV hereby grants CVSI an exclusive, non-transferable, perpetual, royalty-
free right and license from the Effective Date to use, copy and enhance
PRIMOS and associated source code and use, copy, enhance, market, package,
distribute and license PRIMOS applications and documentation; provided,
however, that CV and its subsidiaries shall retain any and all rights to
(i) use, copy and enhance PRIMOS and associated source code, applications
and documentation for their respective internal operations, and (ii) use,
copy and enhance PRIMOS and associated source code and use, copy, enhance,
market, package, distribute and license PRIMOS applications and
documentation for so long as CVSI is in default in its obligations to
provide OSS Services under this Agreement and such default could reasonably
be expected to result in a material breach of a Customer Contract.
5.7 CV hereby grants CVSI a non-exclusive, non-transferable, perpetual,
royalty-free right and license from the Effective Date to use all patents
identified on Schedule 3.2 to the Purchase Agreement as related to the OSS
Business.
5.8 On the Effective Date, CV shall assign to CVSI the rights under the
Authorized Support Provider Agreement currently in place between CV and
SunSoft, Inc. (the "ASP Agreement") and similar rights pursuant to any
successor arrangement thereto whereby CVSI has the right to provide those
services outlined on Schedule 5.8 hereto (the "SunSoft Arrangements"). CV
shall reimburse CVSI, as to up to 45,000 seats running Sun software
products, the incremental costs of any per seat price increase charged CVSI
under the SunSoft Arrangements:
(i) for the period July 1, 1997 to June 30, 1998, the full amount of
such price increase over those prices currently charged under the ASP
Agreement as of June 30, 1997 (the "Current ASP Prices");
(ii) for the period July 1, 1998 to June 30, 1999, the full amount of
any such price increase over the Current ASP Prices in excess of 15% of the
Current ASP Prices; and
(iii) for any period thereafter, none.
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The following table illustrates by way of example the above provisions:
July 1, 1997 to July 1, 1998
June 30, 1997 to July 30, 1998 to June 30, 1999
------------- ---------------- -----------------
unit charge from X Y Z
Sun:
unit charge to CVSI X X X * 1.15
net of reimbursement
from CV:
CV reimbursement 0 Y - X Z - (X * 1.15)
to CVSI:
However, notwithstanding the above,
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(a) CV shall have no obligation to reimburse CVSI for any such price
increase under this Section 5.8 to the extent that CVSI in its reasonable
business judgment can offset all or a portion of such increase by
increasing its market prices; and
(b) for each of the periods referred to in subsections (i) and (ii)
above, and to the extent CVSI meets the financial covenants under the
credit facility with BankBoston existing on the Effective Date for such
period, CVSI shall reimburse CV for any payments made under this Section
5.8 for such period by an amount equal to one-half of the net operating
income attributable to the resale of (i) more than $25,000,000 of Sun
hardware referred by CV for the period from July 1, 1997 to June 30, 1998
and (ii) more than $35,000,000 of Sun hardware referred by CV for the
period from July 1, 1998 to June 30, 1999, respectively; provided, however,
that the aggregate amount of all such reimbursement payments made by CVSI
shall not exceed the aggregate amount of payments made by CV under this
Section 5.8. For purposes of the preceding sentence, net operating income
attributable to such sales shall be deemed to equal gross margin less sales
expenses, relating expenses and general and administrative expense
allocated based on revenue, all as calculated in accordance with United
States generally accepted accounting principles.
Payments made by CV to CVSI under this Section 5.8 shall be made at
the time that CVSI made payment to Sun under the applicable SunSoft
Arrangement. Payments made by CVSI to CV under this Section 5.8 shall be
made within thirty days of the end of the period for which reimbursement to
CV is due.
CVSI shall supply CV reports within fifteen (15) days at the end of
each applicable period setting forth in reasonable detail such information
as will allow CV
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to verify the calculation of amounts owed by either party under this
Section 5.8. CVSI shall make available its books and records to CV for
audit and inspection in connection with such verification. CV shall provide
CVSI reasonable notice prior to the commencement of any such audit.
5.9 CV shall pay all suppliers and subcontractors providing goods or services
relating to the Business in accordance with its current practices. In the
event that CVSI receives notice that (i) CV has failed to make such
payments on a timely basis and (ii) such delinquency would have a material
and adverse effect on CVSI's business relationship with such supplier or
subcontractor, CVSI shall provide CV with written notice of such
delinquency and a description of the circumstances leading it to conclude
that such an impact on its business relationship exists. If CV notifies
CVSI, within five (5) business days of receipt of notice from CVSI, that a
dispute exists within such supplier or subcontractor, the Liaison Committee
shall decide upon the best course of action for the parties to take. If CV
does not, within five (5) business days of CV's receipt of notice, either
(i) deliver a notice of dispute, or (ii) pay such supplier or contractor
the amounts owed, then CVSI may pay such supplier or subcontractor the
amount owed by CV and CV shall pay to CVSI the amount of such payment
within five (5) business days after CVSI's notification of CV that such
payment has been made. Notwithstanding the foregoing, in the event that CV
has timely notified CVSI of a dispute with such supplier of subcontractor,
CV shall not be obligated to reimburse CVSI for any payments made by CVSI
that have not been directed by the Liaison Committee.
5.10 CV shall cause ELC and EVL to provide logistics and distribution services
for spare parts until such time as CVSI's subsidiary in the Netherlands
obtains an import/export license similar to that held by ELC and EVL and
the actions set forth in Schedule 3.9 are completed and CVSI shall pay CV
an amount determined using the same methodology for cost allocation
employed as of June 30, 1997.
5.11 CV and CVSI shall both share equally the costs incurred from and after the
date hereof associated with the suit filed by CV against four employees and
Auspex Systems, Inc. alleging breach of contract, breach of implied
covenant of good faith and fair dealing, intentional interference with
contractual and advantageous relations, and unfair and deceptive trade
practices, and seeking (i) injunctive relief to prevent Auspex from hiring
these employees, (ii) to prevent such employees from commencing employment
with Auspex, and (iii) monetary damages. CV shall direct the Auspex
Litigation. In the event of any recovery arising out of the Auspex
Litigation, CV and CVSI shall equally divide the net proceeds of such
recovery after deducting any costs incurred by CV associated with the
Auspex Litigation arising prior to the date hereof.
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6.0 CVSI PROVIDED SERVICES
CVSI shall provide CV the following services for the periods indicated in
Section 8 below, which periods may be reduced or extended upon mutual
agreement of the parties hereto.
6.1 CVSI shall install CV Products at customers sites as requested by CV (the
"Software Installation Services"). CV shall pay CVSI its pro rata portion,
based on the Standard Methodology, of the reasonable costs incurred by CVSI
in providing the Software Installation Services.
6.2 CVSI shall operate the 1-800 toll free service number used by customers for
service inquiries in respect of both OSS Services and CV Products in the
U.S. and such customer call handling arrangements as have been maintained
under existing practices in each other jurisdiction and shall provide a
reasonable number of trained operators to answer incoming calls and to
route the calls to the appropriate service personnel (collectively, the
"Call Management Services"). CV shall pay CVSI its pro rata portion, based
on the Standard Methodology, for the reasonable costs incurred by CVSI in
providing the Call Management Services.
6.3 For as long as CV desires access to the MDB and ISIS computer systems and
related databases (the "MDB/ISIS Systems"), CVSI shall maintain the
MDB/ISIS Systems and shall provide CV access to such systems and databases
in accordance with past practice and shall use such systems and databases
to provide CV contract administration services, including timely and
accurate invoicing, addressing customer inquiries, providing appropriate
notices and related administrative functions relating to the Customer
Contracts that have not been terminated or transferred to CVSI (the
"Contract Administration Services"). CV shall provide reasonable
assistance to CVSI in the provision of the Contract Administration
Services. CVSI shall provide the Contract Administration Services to CV
free of charge; provided that CV shall be responsible for all compensation
and related expenses of all employees of CV who assist in the provision of
such services; provided further, that for any periods after the date which
is two hundred twenty five (225) days after the Effective Date in which CV
desires access to the MDB/ISIS Systems in order to administer CV software
customer contracts, CV shall pay CVSI its pro rata portion, based on the
ratio of the revenue attributable to CV software customer contracts
maintained on the MDB/ISIS Systems for such period to the revenue
attributable to Customer Contracts maintained on the MDB/ISIS System for
such period, of the reasonable costs incurred by CVSI in maintaining the
MDB/ISIS Systems.
6.4 CVSI shall provide services for the renewal of existing contracts with
customers who have maintenance agreements covering both OSS Services and CV
software products (the "Contract Renewal Services"). CV shall pay CVSI its
pro rata portion of the
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reasonable costs incurred by CVSI in providing the Contract Renewal
Services, based on the same rates used in June 1997 to allocate such costs.
6.5 CVSI shall provide CV collection services in such jurisdictions as are
indicated by Schedule 6.5 as being those in which CVSI maintains collection
or administrative personnel and CV does not maintain collection or
administrative personnel (the "Foreign Collection Services"). CVSI shall
provide the Foreign Collection Services to CV free of charge.
6.6 CVSI shall pay all suppliers and subcontractors providing goods or services
relating to the Business in accordance with its current practices. In the
event that CV receives notice that (i) CVSI has failed to make such
payments on a timely basis and (ii) such delinquency would have a material
and adverse effect on CV's business relationship with such supplier or
subcontractor, CV shall provide CVSI with written notice of such
delinquency and a description of the circumstances leading it to conclude
that such an impact on its business relationship exists. If CVSI notifies
CV, within five (5) business days of receipt of notice from CV, that a
dispute exists within such supplier or subcontractor, the Liaison Committee
shall decide upon the best course of action for the parties to take. If
CVSI does not, within five (5) business days of CVSI's receipt of notice,
either (i) deliver a notice of dispute, or (ii) pay such supplier or
contractor the amounts owed, then CV may pay such supplier or subcontractor
the amount owed by CVSI and CVSI shall pay to CV the amount of such payment
within five (5) business days after CV's notification of CVSI that such
payment has been made. Notwithstanding the foregoing, in the event that
CVSI has timely notified CV of a dispute with such supplier of
subcontractor, CVSI shall not be obligated to reimburse CV for any payments
made by CV that have not been directed by the Liaison Committee.
7.0 FACILITIES SHARING ARRANGEMENTS
In addition to the sublease of space at the above-mentioned Facilities, the
parties agree that, for the period set forth on Schedule 5.1 opposite each
respective Facility (the "Facility Transition Period"), CV will provide
services listed in this subsection in the Facilities which will be shared
by CV and CVSI for CVSI. Any continuation of such services after the
termination of the Facility Transition Period will be separately
negotiated.
7.1 For the convenience of CVSI, and at CVSI's request, CV shall maintain an
inventory of standard office supplies and shall obtain at CVSI's request
reasonable amounts of additional standard supply items. CVSI may secure
supplies as needed upon request to CV and CV shall secure requested
supplies in advance of their intended use. It is expressly understood that
CV is acting as the agent of CVSI in purchasing said supplies and is not in
the business of retail sales of such merchandise.
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7.2 CV shall provide reasonable mailroom support for letters, correspondence,
parcels and other mailings, including, without limitation, packaging,
weighing and delivering CVSI's mail. The mailroom shall also provide for
service by United Parcel Service, Federal Express, DHL or other similar
services, including, without limitation, certified mailings. CVSI hereby
authorizes CV to receive on behalf of CVSI, mail, parcels and other
deliveries arriving in CVSI's name and to hold such items secure until
delivery to CVSI's office. CV shall make such delivery promptly upon
receipt of such items, unless CVSI requests otherwise in writing.
7.3 CV shall provide fax and copy facilities for CVSI's use in the course of
ordinary office demands.
7.4 CVSI shall be entitled to utilize CV's existing travel consulting, building
maintenance and cafeteria services.
7.5 CVSI and its employees, agents, customers, visitors and other authorized
personnel acting on its behalf shall be entitled to reasonable access to
and use of those spaces and facilities existing as common facilities
serving the premises, including but not limited to the cafeteria, halls,
corridors, exits and entry ways, secretarial areas, conference rooms,
reception and waiting area and restroom facilities. CVSI, and its
employees will be provided badges and will follow CV's normal security
procedures/practices as applicable to employees and to subcontractors and
will ensure the same of its agents, customers, visitors and other
authorized personnel acting on its behalf.
7.6 CV shall provide on behalf of CVSI, during normal business hours, the
services of a receptionist and access to common waiting areas at the
building entry ways.
7.7 CVSI shall provide its employees and assure its contractors (i) workers
compensation insurance and employers liability insurance with respect to
its own personnel with limits of not less than $1,000,000 per occurrence
and (ii) property insurance with respect to its own assets. CVSI shall
provide, and CV shall be named as additional insured with respect to, a
general liability insurance policy for property and for bodily injury to
persons not employed by CVSI with limits of not less than $1,000,000 per
occurrence. CVSI shall provide to CV on the Effective Date a certificate
evidencing the coverage required hereunder and prior notice of either
cancellation or any changes of coverage.
7.8 CV shall be responsible for making all routine repairs and performing
routine maintenance in and about the office and common areas. Each party
shall be responsible for any damages done to their premises by itself or
any other person who is on the premises with its consent. CVSI shall not
undertake any alteration or modification of the physical interior portions
of its office unit. Any alterations or modifications, excluding reasonable
office decorations or the placement of particular
13
furnishing or equipment which is undertaken without prior written approval
by CV shall be remedied at the expense of CVSI.
7.9 Each party shall be responsible for its own property damage and claims by
its own employees related to bodily injury or the employment relationship
unless resulting from the negligence or willful misconduct of an employee
of the other party.
7.10 CV shall provide CVSI the services set forth in Section 7 free of charge
during the Transition Period.
The premises are to be used solely for conduct of the Business. CVSI shall
restrict its use to such purposes and shall not use nor permit the use of
the premises for any other purposes without the prior written consent of
CV. CVSI will ensure that, prior to performing work at CV's premises, its
employees are operating under terms of nondisclosure agreements of a type
substantially similar to those in effect between CV and CV's employees
prior to the Effective Date.
8.0 TERMINATION OF SERVICES
8.1 CV shall be obligated to provide the following services for an initial
period of ninety (90) days from the Effective Date, which period may be
extended by either party for up to an additional thirty (30) days, and may
be further extended for an additional thirty (30) days upon mutual
agreement of the parties, such agreement not to be unreasonably withheld:
Finance and Accounting Services. Notwithstanding the above, the parties
shall use good faith efforts to become self-sufficient in the provision of
such services prior to the expiration of the foregoing period, in which
case the obligation imposed by this section may be terminated early by
mutual agreement of the parties.
8.2 CV shall be obligated to provide the following services for a period ending
on December 31, 1997, which period shall be reviewed by the parties sixty
(60) days after the Effective Date and may be extended as the parties may
mutually agree, and shall not be obligated to provide such services
thereafter: Corporate Network Services and Telecommunications Services.
Notwithstanding the above, the parties shall use good faith efforts to
become self-sufficient in the provision of such services prior to the
expiration of the foregoing period in which case the obligation imposed by
this section may be terminated early by mutual agreement of the parties.
8.3 CVSI shall be obligated to provide the following services for a period
ending on December 31, 1997, which period shall be reviewed by the parties
sixty (60) days after the Effective Date and may be extended as the parties
may mutually agree, and shall not be obligated to provide such services
thereafter: Software Installation Services, Call Management Services,
Contract Renewal Services and Foreign Collection Services.
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8.4 CVSI shall be obligated to provide the following services until the earlier
of (i) the assignment or expiration of the then current term of all
Customer Contracts that have not been transferred to CVSI or (ii) such time
as CV provides notice of its desire to terminate in whole or in part the
receipt of such services: Contract Administration Services.
9.0 CV PRODUCT DISTRIBUTION
9.1 Subject to the provisions of Section 9.12, CVSI shall have the non-
exclusive right to promote, market and distribute CV Products on a
worldwide basis (except to the extent that CV has otherwise granted
exclusive rights to others as described on Schedule 9.1 hereto) under the
terms and conditions contained herein for a period commencing with the
Effective Date and continuing for an initial term of two (2) years, subject
to automatic renewal for one (1) additional year unless CVSI fails to meet
appropriate performance criteria to be developed by the Liaison Committee
(as defined in Section 11) during the second year of such distribution
arrangement. After expiration of the initial term and such automatic
renewal period (if any), the term of this distribution arrangement will be
renewed automatically on each anniversary of the Effective Date for an
additional one (1) year period unless either party gives notice to the
other party six months prior to the expiration of the current term of its
intention to terminate this distribution arrangement. In addition to the
above, CV and CVSI shall negotiate in good faith an arrangement pursuant to
which CVSI shall have the non-exclusive right to promote, market and
distribute CV's family of products currently known as "EPD.CONNECT" and
such updates for such products as CV may hereafter develop ("EPD
Products"). During the period commencing on the Effective Date until such
time as the above mentioned arrangement is negotiated, CVSI will work with
CV on a case by case basis to distribute EPD Products under terms
consistent with this Section 9.
9.2 To the extent necessary for CVSI to perform the Medusa Services described
in Section 3.3 hereto, CVSI shall have the right to use a reasonable number
of copies of CV's Medusa line of products, access to on-line service tools,
access to knowledge base and access to any other service or diagnositic
tools in the locations where such Medusa Services are being rendered solely
in connection with the provision of Medusa Services, for so long as CVSI
provides Medusa Services to CV pursuant to this Agreement.
9.3 CV may change pricing or may add or delete versions of the CV Products as
set forth in CV's then current prevailing price list for such CV Products
upon ninety (90) days prior notice to CVSI.
9.4 CVSI shall use commercially reasonable efforts to promote and recommend to
its customers of CV Products the software maintenance services provided by
CV.
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9.5 During the term of this Agreement, orders for the CV Products shall be
submitted to CV by CVSI per CV's then current ordering processes and
procedures and such CV Products shall be distributed to CVSI by CV directly
unless CV is otherwise contractually required to cause delivery of CV
Products in a jurisdiction through a third party pursuant to contracts
existing as of the date hereof, which will not impact the discount price
set forth in Section 9.6 hereof to the extent permitted by law.
9.6 CVSI shall pay to CV, for each copy of the CV Products ordered and shipped,
the appropriate then current license fee for the country of installation,
less a discount for the CV Products ordered equal to the greater of (i)
such discount as is provided to any other distributor in such country whose
gross sales of CV Products are equal to or less than CVSI's gross sales in
such jurisdiction, or (ii) 50%. License fees will be exclusive of all
federal, state, municipal or other governmental excise, sales, use or like
taxes and therefore will be subject to an increase in an amount equal to
any tax CV may be required to collect or pay upon the sale, license or
delivery of the CV Products. Payments shall be made by CVSI to CV in
accordance with CV's standard payment terms which are Net 30 days from
shipment.
9.7 CV shall permit CVSI to participate in trade shows and/or sales promotional
campaigns as mutually agreed between the parties.
9.8 The parties agree to provide each other with appropriate and sufficient
technical information in order to allow the parties to establish support
and planning programs for their respective operations all in accordance
with CV's then current marketing program for CV Products.
9.9 Subject to appropriate protection of CV's Proprietary Information (as
defined in Section 15), CVSI will receive access to new CV Products and
future technology and technical information at such time as CV makes such
information generally available to its distributors in order to develop
appropriate marketing and distribution plans. CV will provide CVSI with
the appropriate training and course materials to enable CVSI to provide
such support.
9.10 CV grants to CVSI a non-exclusive, worldwide, royalty-free license to use
CV trademarks, logos and applicable CV Product trademarks for the purposes
of the distribution of the CV Products hereunder.
9.11 All of the CV Products furnished hereunder shall be shipped F.O.B. point of
shipment. Risk of loss shall pass to CVSI upon delivery to the common
carrier. All insurance and transportation expenses shall be born by CVSI.
9.12 During the term of this distribution arrangement, CV shall have the right
to grant third parties exclusive rights in one or more industries or one or
more geographical regions (other than Australia) unless CVSI reasonably
objects to such an arrangement within
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twenty (20) days after CV provides CVSI written notice of the proposed
exclusive arrangement, the reasonableness of the exercise of such a right
to object to be determined based upon CVSI's sales efforts in the region,
or industry, the existence of alternative markets for which CVSI has
distribution rights and the significance of the proposed exclusive
distribution arrangement to CV's then existing marketing plan. CV shall
ensure that any grant of exclusive rights is reasonably tailored to be no
broader than is necessary to effectuate CV's business objectives. If CV
grants any exclusive rights in accordance with the provisions of this
section, CVSI's rights to distribute CV Products shall be equivalently
reduced in scope.
9.13 CVSI shall be solely responsible for and shall indemnify and defend CV from
any claim based on any warranty offered by CVSI to end users for CV
Products that exceed the scope of or extend beyond the terms of CV's
warranties as set forth in CV's Software License Agreement attached hereto
as Exhibit C, as may be amended from time to time.
9.14 EXCEPT AS EXPRESSLY PERMITTED IN THIS AGREEMENT OR CV's SOFTWARE LICENSE
AGREEMENT, CVSI MAY NOT COPY OR MODIFY ANY CV PRODUCT IN ANY WAY AND MAY
NOT AUTHORIZE OR PERMIT ANY THIRD PARTY TO COPY OR MODIFY ANY CV PRODUCT IN
ANY WAY WITHOUT RECEIVING THE PRIOR WRITTEN CONSENT FROM CV.
9.15 CV's warranty to CVSI is as contained in the applicable CV Software License
Agreement. CV shall not have any responsibility or be liable in contract,
tort or otherwise for software acquired from third parties. The warranty
set forth in the Software License Agreement as applicable to CV Products is
exclusive and in lieu of all other warranties whether statutory, expressed
or implied, and the warranties of merchantability and fitness for a
particular purpose and all other warranties arising from course of dealing
or usage of trade are hereby excluded as they pertain to CV Products.
9.16 In order to permit CVSI to promote the CV Products as required under this
Section 9, CV grants to CVSI a non-exclusive license to use the "CV", or
"Computervision" trademark and logo type and applicable CV Product
trademarks or service marks of CV during the term of this Agreement to
identify the source of the CV Products in connection with the distribution
of CV Products hereunder. CVSI hereby recognizes and shall not challenge
or interfere with CV's exclusive rights and in and to trademarks and
service marks and trade names that are regularly applied by CV to the CV
Products. Unless otherwise provided for this Agreement, CVSI hereby
recognizes and shall not challenge CV's exclusive rights and into all
patents, copyrights or trade secrets covering the CV Products. CV is
authorized to use CVSI's trademarks, service marks and trade names in
furtherance of the Agreement, provided that such use is in connection with
the marketing and promotional efforts as contemplated herein.
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9.17 CV will defend, indemnify, and hold harmless CVSI from any action brought
against CVSI as a result of the infringement of any patent, trademark,
copyright, or trade secret by any CV Product provided by CV to CVSI under
the terms of the Software License Agreement.
9.18 The parties agree that CVSI's distribution of CV Products and EPD Products
is meant to be complimentary to CV's distribution of products and CV is the
primary distributor of such Products to its customer base. In the event
that any channel conflict or competitive situations arise between CV and
CVSI under this Section 9, such conflict shall be resolved by the Liaison
Committee. Except as otherwise stated herein, nothing in this Agreement
shall prohibit or otherwise restrict CV, either directly or through its
agents or distributors, from selling or licensing CV Products or EPD
Products to users.
10.0 COPIES OF CV PRODUCTS FOR INTERNAL USE
CV grants to CVSI a royalty-free, non-exclusive, worldwide, non-
transferable license to use two server copies and two client copies at CV
Services' headquarters and two server copies and two client copies at the
headquarters of each CV Services' subsidiary of the CV Products for
internal use only, including the demonstration, marketing or promotion of
CV Products. CV grants to CVSI a royalty-free, non-exclusive worldwide,
non-transferable license to use one copy at CV Services' headquarters and
one copy at the headquarters of each CV Services' subsidiary of CV software
products distributed by CVSI or for which CVSI provide software services
for internal use only. CV will provide software support services for these
copies free of charge. CVSI may purchase additional licenses and shall pay
to CV an amount based upon CV's standard rates for the software support
services to be provided by CV for the software covered by such licenses.
11.0 MANAGEMENT LIAISON COMMITTEE
For the term of this Agreement, the Parties shall establish a formal
Management and Administrative Liaison Committee (the "Liaison Committee")
to accomplish the following:
(1) Ensure that the operating, administrative, and contractual relationship
is maintained as contemplated;
(2) Review and audit the effectiveness of services provided by CVSI to CV;
and
(3) Develop performance goals and cooperative strategies for marketing and
utilizing CV products that mutually benefit both organizations.
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The initial members of this Committee shall be:
For CVSI: For CV:
Xxxxxxx Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxxxx Xxxxxxx X. Xxxxx, Xx.
Shiv Verma Xxxxx X. Xxxxxx
Xxxxxxx Xxxxxxx Xxxxx XxXxxxx
Either party may change the designation of its members of the Committee by
providing written notice to the other party in accordance with Section 24.
The Liaison Committee shall use reasonable best efforts to resolve any
dispute between the parties that may arise. If the Liaison Committee is
unable to resolve any dispute arising from the performance of its
functions, and such dispute continues unresolved for 21 days, either party
to this agreement may provide written notice to the other party that an
impasse exists. In the event of an impasse, such dispute shall be
submitted to the Chief Executive Officers of CV and CV Services (the
"CEOs") for resolution within 14 days of the date of the declaration of
impasse. The CEOs shall use reasonable best efforts to attempt to resolve
such dispute for a period of not less than 14 days.
12.0 TERM, DEFAULT AND TERMINATION
12.1 Except with respect to those provisions of this Agreement specifically
providing for their term to end on a date other than the third anniversary
of the Effective Date, this Agreement shall terminate on the third
anniversary of the Effective Date.
12.2 In the event of any default in performance of any material term or
provision under this Agreement by either party hereto, the nondefaulting
party may send a written default notice to the defaulting party explaining
the nature of the default. If such default is not totally cured within (i)
fifteen (15) days for payment default after the receipt of the default
notice or (ii) thirty (30) days for all other defaults after the receipt of
the default notice, the nondefaulting party may deliver a termination
notice terminating this Agreement, effective immediately, provided that in
the case of a default described in clause (ii) that is capable of being
cured such default must first be referred to the Liaison Committee (and if
applicable to the CEOs of CV Services and CV pursuant to Section 11). If a
party is diligently attempting such a cure, the non-defaulting party shall
only have the right to terminate this Agreement if the default is not
totally cured within ninety (90) days after the receipt of the default
notice and the CEOs are unable to resolve such dispute pursuant to the
provisions of Section 11. Termination of this Agreement by either party
shall not be deemed an election of remedies or waiver of any claims
relating to the other party.
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12.3 In the event that either party files a petition in bankruptcy or has such a
petition filed against it, which petition is not discharged within thirty
(30) days after filing, or is placed in a receivership or reorganization
proceeding or is placed in a trusteeship involving an insolvency, or ceases
doing business in the ordinary course, the other party may terminate this
Agreement by giving a termination notice, which termination shall become
effective fifteen (15) days after mailing.
12.4 Upon termination of the distribution arrangements set forth in Section 9,
CVSI shall immediately cease using and either return or destroy at CV's
discretion, any and all CV Products used for demonstration and
documentation to CV and certify it has returned or destroyed all originals
and copies, in any form, of such materials.
13.0 FORCE MAJEURE
Neither CV nor CVSI shall have any liability for failure or delay in
fulfilling the terms of this Agreement due to strike, war, civil unrest,
government regulations, acts of God, or other causes which are unavoidable
and beyond its control. The time for performance of either party's
obligations hereunder shall automatically be extended for a period equal to
the duration of any such delay.
14.0 LIMITATION OF LIABILITY
14.1 Each party shall be liable for and will indemnify and save the other
harmless in respect to any claim or loss of damage to property, death or
injury to persons that may arise as a result of its negligence or willful
misconduct arising from the performance of its obligations hereunder.
14.2 NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR
IN TORT, FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF
PROFITS OR REVENUES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
EXCEPT FOR DAMAGE TO PROPERTY OR DEATH OR INJURY TO PERSONS. IN NO EVENT
SHALL EITHER PARTY BE LIABLE FOR DAMAGES EXCEEDING THE AMOUNTS PAID FOR THE
PRODUCTS OR SERVICES GIVING RISE TO THE CLAIM.
15.0 CONFIDENTIALITY
The parties hereto shall maintain the confidentiality of all technology,
product plans, confidential documents and information, including but not
limited to inventions, business or marketing plans including product
calendars, technical data and other information which is not publicly
available ("Proprietary Information"); provided, however, that CVSI and CV
may provide Proprietary Information to such party's attorneys, accountants,
lenders and present or potential financing sources if such
20
entities are instructed to maintain confidentiality with respect to such
Proprietary Information and the party providing such Proprietary
Information to such entity agrees in writing to assume responsibility for
any damages resulting from disclosure of Proprietary Information by such
entity. The obligations of confidentiality hereunder shall continue for a
period of three (3) years from the date of termination of CVSI's right to
distribute products in accordance with Section 9 hereof. Proprietary
Information does not include information which (i) is or becomes publicly
known through no wrongful act or failure to act on the part of either party
or (ii) is rightfully known by the receiving party without any proprietary
restrictions at the time of receipt of such Proprietary Information.
16.0 GOVERNING LAW AND FORUM SELECTION
This Agreement shall be governed by, interpreted and enforced in accordance
with the law, other than the laws pertaining to conflicts or choice of
laws, of the Commonwealth of Massachusetts. Any action brought by either
party against the other shall be brought exclusively in the appropriate
state or federal courts located in the Commonwealth of Massachusetts.
17.0 ASSIGNMENT
The distribution arrangement set forth in Section 9 of this Agreement may
not be assigned or transferred (including pursuant to a merger, acquisition
or otherwise by operation of law) by either party without the prior written
consent of the other party. The remaining provisions of this Agreement may
not be assigned (whether by merger, acquisition or otherwise by operation
of law) without the prior written consent of the other party, which will
not be unreasonably withheld, except that either party may assign this
Agreement to a wholly owned subsidiary and CVSI may assign this Agreement
in connection with the sale of all or substantially all of the Business
without the prior written consent of the other party. This Agreement shall
be binding on and inure to the benefit of the parties and their permitted
successors and assigns.
18.0 ENTIRE AGREEMENT
This Agreement, including the Exhibits and Schedules, constitutes the
entire and exclusive agreement between the parties with respect to the
subject matter; provided, however, that if any terms of this Agreement
conflict with the terms of the Purchase Agreement, the terms of the
Purchase Agreement shall control. All previous discussions and agreements
with respect to the subject matter are superseded by this Agreement.
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19.0 AMENDMENT
No amendment or modification to this Agreement, nor any waiver of any
rights, will be effective unless consented to in writing by both parties
and the waiver of any breach or default will not constitute a waiver of any
other right or any subsequent breach or default.
20.0 WAIVER
No failure by either party to exercise, and no delay in exercising, any
right or remedy in respect of any provision of this Agreement will operate
as a waiver of such right or remedy.
21.0 ADDITIONAL EFFORTS
Any services or equipment desired or requested by one party to the other
that is not expressly set forth in the terms and conditions of the
Agreement are deemed to be intentionally omitted from the terms of this
Agreement and will be negotiated by the parties.
22.0 SEVERABILITY
If any provision of this Agreement is ruled unenforceable, it will be
enforced to the extent permissible, the parties will negotiate a substitute
valid provision which most nearly effect the parties' intent and the
remainder of the Agreement will remain in effect.
23.0 PRESS RELEASES
Neither party shall make any disclosure or announcement in connection with
this Agreement or the performance of this Agreement, including the ongoing
relationship, without the prior written consent of the other party which
shall be granted or withheld within five (5) working days after request,
except as may be required by any laws, regulations or authorities, in which
case a copy of the required disclosure or announcement will be submitted to
the other party before such disclosure or announcement is made.
24.0 NOTICES
Any and all notices and any other communications required by this Agreement
or by law to be served or given to either party hereto by the other party
hereto, shall be, unless otherwise required by law, in writing and deemed
duly served and given when personally delivered to the party to whom
directed or any other authorized officers, in
22
lieu of such personal service, when delivered via facsimile or when
deposited in the United States registered or certified mail, return receipt
requested, addressed to:
Computervision Corporation CV Services International, Inc.
000 Xxxxxx Xxxxx 000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: General Counsel Attn: General Counsel
Fax: (000) 000-0000 Fax: (000) 000-0000
25.0 COUNTERPARTS
This Agreement may be executed in any number of counterparts and any party
hereto may execute any such counterpart, each of which when executed and
delivered shall be deemed to be an original and all of which counterparts
taken together shall constitute one and the same instrument.
26.0 SURVIVABILITY
The following paragraphs shall survive the termination of this Agreement
(including the termination of the provisions of this Agreement which
specifically provide for their term to end on a date other than the third
anniversary of the Effective Date pursuant to Section 12.1): 12.4, 14 and
15.
27.0 HEADINGS AND TITLES
The sections and other headings contained in this Agreement are for
reference purposes only and shall not be considered for purposes of
interpreting the text hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized representatives.
COMPUTERVISION CORPORATION CVSI, INC.
By: /s/ Xxxxxxx X. Xxxxx, Xx. By: /s/ Xxxxxxx Xxxxxx
----------------------------------- -------------------------------
Title: Vice President of Business Title: President
Operations and General Counsel
Date: July 18, 1997 Date: July 18, 1997
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