INTERIM MANAGEMENT AGREEMENT
This Interim Management Agreement (the "Agreement"), dated June ,
1997, is made and entered into by and between DeltaPoint, Inc., a California
corporation ("DeltaPoint"), and SPSS Inc., a Delaware corporation ("SPSS").
RECITALS
WHEREAS, SPSS and DeltaPoint are entering into an Asset Purchase
Agreement, dated as of May 1, 1997, (the "Asset Purchase Agreement") pursuant to
which SPSS is acquiring certain assets related to the DeltaGraph product line
(the "Assets") and the business associated with the Assets (the "Business") from
DeltaPoint as more fully described in the Asset Purchase Agreement, with
capitalized terms used but not defined herein having the meanings assigned
thereto in the Asset Purchase Agreement; and
WHEREAS, SPSS desires that DeltaPoint continue to manage the Business
through July 31, 1997 after the acquisition of the Assets and the Business from
DeltaPoint by SPSS;
WHEREAS, DeltaPoint is willing to continue to manage the Business
through July 31, 1997;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby covenant and agree as follows:
1. EFFECTIVENESS; TERM. This Agreement shall become effective and
the term of this Agreement shall commence on the date first written above and
shall terminate on July 31, 1997 (the "Term"), unless otherwise extended by the
written agreement of the parties hereto.
2. SERVICES. After the acquisition of the Assets and the Business
from DeltaPoint by SPSS, DeltaPoint agrees to continue to manage the Business
for the Term with the same degree of quality and care as it used prior to the
transfer of the Assets and Business. The management services provided by
DeltaPoint shall consist of product fulfillment and distribution, sales,
promotions, invoicing collections and technical support relating to the Assets
and the Business, and the transfer to SPSS of knowledge and code related to the
Assets and the Business. DeltaPoint agrees that the Assets will be used solely
for the purposes provided under this Agreement. It is understood that
DeltaPoint will have no obligation for the further development of the Assets or
the Business.
3. TITLE. The Assets shall at all times remain the property of
SPSS; DeltaPoint shall keep the Assets free and clear of any and all liens,
charges and encumbrances, except for liens for taxes, assessments and other
governmental charges that are not yet due and payable; and except as set forth
herein, DeltaPoint shall have no right, title or interest therein.
4. PROFITS. Subject to Section 7.1, from and after the date of this
Agreement, SPSS shall be entitled to all profits, revenues and income derived
from the operation of the Business.
5. COMPENSATION. On or before August 10, 1997, SPSS will pay
DeltaPoint Four Hundred Thousand and No/100 Dollars ($400,000.00) in cash as a
fee for DeltaPoint's services provided under this Agreement, adjusted (increased
or decreased) to reflect payments to be made or received by SPSS in accordance
with Section 7 hereof.
6. ALTERATIONS. DeltaPoint shall not make any alterations,
additions, or improvements to the Assets or the Business without the prior
written consent of SPSS. All alterations, additions and improvements to the
Assets and the Business shall become the property of SPSS.
7. OBLIGATIONS.
7.1. Within five (5) days after receiving the calculation
referenced in Section 7.2 below, and provided that the Qualified Cost of
Goods Sold (defined below) in respect of DeltaGraph software products sold
during the Term, is greater than the Cash Collections (defined below) due
SPSS, SPSS shall pay to DeltaPoint an amount equal to the Qualified Cost of
Goods Sold in respect of DeltaGraph software products sold during the Term
LESS the amount of any cash collections (including the amount of any sales
tax and shipping and handling actually collected) actually received by
DeltaPoint in respect of such sales during the Term and collection by
DeltaPoint of accounts receivable belonging to SPSS arising during the
period from May 1, 1997 to the date of this Agreement as contemplated by
Section 1.1(a)(viii) of the Asset Purchase Agreement and Section 4 hereof
(the "Cash Collections"). If, however, the Cash Collections exceed the
Qualified Cost of Goods Sold for such period, DeltaPoint shall, within five
(5) days after the calculation referenced in Section 7.2 is made, pay to
SPSS an amount equal to the Cash Collections less Qualified Cost of Goods
Sold in respect of DeltaGraph software products sold during the Term.
"Qualified Cost of Goods Sold" means, in respect of any DeltaGraph software
product sales, the related cost of goods sold consisting of direct
materials, contract manufacturing costs to convert raw materials into
finished products, and royalties, adjusted to exclude that portion of the
cost of goods sold relating to inventory belonging to SPSS, as determined
in accordance with DeltaPoint's past practices PLUS (i) the amount of the
related sales tax and shipping and handling and (ii) the related marketing
and other expenditures as may be reasonably agreed upon by SPSS and
DeltaPoint. The parties hereof agree that payments made in accordance with
this Section may be made by
adjusting the payment to be made by SPSS hereunder in accordance with
Section 5 hereof.
7.2. On or before August 5, 1997, DeltaPoint shall deliver to
SPSS a good faith calculation setting forth in reasonable detail the amount
of the additional cash payment to be made pursuant to Section 7.1 hereof.
In the event that SPSS shall in good faith dispute the amount of such
payment, SPSS shall pay to DeltaPoint (or DeltaPoint shall pay to SPSS, as
the case may be) that portion of payment with respect to which there is no
dispute and the parties agree that the payments to be made hereunder shall
be adjusted to reflect the resolution of such dispute. Any controversy or
dispute relating to the determination of amounts due under this Section 7
and related accounting issues shall be resolved by agreement of a partner
from a "Big 6" accounting firm (other than the auditors of DeltaPoint and
SPSS), which accounting firm shall be chosen by the auditors of DeltaPoint
and SPSS.
7.3. DeltaPoint shall have only employees of substantially the
same training, competence and qualification as those previously employed by
DeltaPoint utilize the Assets and operate the Business.
8. COMPLIANCE WITH LAW. DeltaPoint shall remain aware of and fully
comply in all material respects with all applicable laws, rules and regulations
now in force or which may hereafter be in force with respect to its obligations
hereunder. DeltaPoint shall promptly notify SPSS of any action, lawsuit, claim
or proceeding arising, either directly or indirectly, from its use of the Assets
or operation of the Business.
9. INSURANCE. During the Term of this Agreement, DeltaPoint shall
maintain insurance, providing coverage for the Assets.
10. REMOVAL. Upon the expiration or termination of this Agreement,
SPSS shall remove, at its own expense, the Assets and documents associated with
the Business, including any inventory and purchase orders, which are located at
DeltaPoint. The process of removal shall be completed within thirty (30) days
after the expiration or termination of this Agreement. SPSS shall be
responsible for all sales, use or other taxes resulting from such removal.
11. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION AND INVENTIONS.
11.1. CONFIDENTIAL INFORMATION. "Confidential Information" means
all of the trade secrets, all Inventions (as defined herein), and all
confidential technical and business information which SPSS owns or is
licensed to use relating to the Assets or the Business, or may in the
future own or be licensed to use relating to the Assets or the Business.
Without limiting the generality of the foregoing, Confidential Information
shall include the following, whether now or hereafter existing: all
product development and design information, systems, programs, algorithms,
software
(including, without limitation, source and object code and design and user
documentation), procedures, techniques, manuals, customer information,
specifications, data bases, test results, information concerning business
or product acquisitions, strategic plans, customer lists, pricing data, and
discoveries, inventions and innovations made, created, developed or
associated with the Assets or the Business.
11.2. INVENTIONS. "Inventions" mean all systems, programs,
algorithms, procedures, techniques, manuals, data bases, plans, lists,
inventions, copyrights, patents, trademarks, discoveries, innovations,
concepts, ideas and software (including, without limitation, source and
object code and design and user documentation) conceived, compiled or
developed by DeltaPoint in the course of DeltaPoint's engagement by SPSS
under this Agreement.
11.3. NON-DISCLOSURE AND ASSIGNMENT. DeltaPoint will regard and
preserve as confidential and as trade secrets all the Confidential
Information. During the Term of the Agreement and thereafter, DeltaPoint
covenants and agrees that it shall not, except with the prior written
consent of SPSS, directly or indirectly use, report, publish, transfer or
disclose any Confidential Information, except (i) acting at the direction
of SPSS solely for SPSS' benefit in accordance with SPSS' established
business practices and policies; or (ii) to consummate the transactions
contemplated under this Agreement. The Confidential Information shall
remain the sole and exclusive property of SPSS, and upon any expiration or
termination of the Agreement, DeltaPoint shall promptly return any and all
Confidential Information in its possession or control to SPSS. DeltaPoint
shall assign to SPSS, its right, title and interest in and to any Invention
developed using any Confidential Information. Confidential Information
shall not, however, include any information which (i) was publicly known
and made generally available in the public domain prior to the time of
disclosure by the disclosing party; (ii) becomes publicly known and made
generally available after disclosure by the disclosing party to the
receiving party through no action or inaction of the receiving party; (iii)
is already in the possession of the receiving party at the time of
disclosure by the disclosing party as shown by the receiving party's files
and records immediately prior to the time of disclosures; (iv) is obtained
by the receiving party from a third party without a breach of such third
party's obligations of confidentiality; (v) is independently developed by
the receiving party without use of or reference to the disclosing party's
Confidential Information, as shown by documents and other competent
evidence in the receiving party's possession; or (vi) is required by law to
be disclosed by the receiving party, PROVIDED THAT the receiving party
gives the disclosing party prompt written notice of such requirement prior
to such disclosure and assistance in obtaining an order protecting the
information from public disclosure.
11.4. EMPLOYEES. All personnel, including employees, agents,
consultants and contractors, who will provide services during the Term of
this Agreement (a) will be at such time parties to "work-for-hire"
arrangements or
agreements with DeltaPoint, in accordance with applicable federal and
state law, that have accorded DeltaPoint full, effective, exclusive and
original ownership of all intellectual property thereby arising, or (b)
will have executed appropriate instruments of assignment, which are still
in full force and effect, in favor of DeltaPoint, as assignee, that have
conveyed to DeltaPoint full, effective and exclusive ownership of all
intellectual property thereby arising.
11.5. ASSURANCES. DeltaPoint covenants and agrees that
DeltaPoint will not use, in connection with the performance of DeltaPoint's
duties and responsibilities to SPSS, any confidential, technical or
business information acquired from, or developed on behalf of any other
person, firm or association to the extent that any such usage could
reasonably be expected to be adverse to SPSS in any material respect.
12. INDEMNIFICATION. DeltaPoint shall indemnify and hold SPSS and
its affiliates, subsidiaries, directors, officers, employees, agents and
representatives harmless from and against any and all claims, causes of action,
losses, damages, liabilities and costs (including, without limitation,
attorneys' fees and amounts paid in good faith in settlement) arising out of or
relating to (i) any breach or default of any representation or obligation
hereunder by DeltaPoint; (ii) the failure of DeltaPoint to comply with any
applicable law, ordinance or regulation; and (iii) the negligence or willful
misconduct of DeltaPoint or any affiliate, related entity, partner, employee,
agent or representative of DeltaPoint for services provided under this
Agreement. In no event shall the amount of any damages so payable by DeltaPoint
exceed $50,000.00.
13. ARBITRATION. Any dispute as to any claims under this Agreement
shall be settled by arbitration in accordance with the terms of the Asset
Purchase Agreement.
14. BREACH. In the event DeltaPoint fails to perform or defaults in
the performance of any of its obligations hereunder in any material respect,
SPSS may, in addition to its other rights and remedies, recover from DeltaPoint
any loss or damage suffered by it as a result of such failure in accordance with
the terms of Section 12 hereof and/or terminate this Agreement upon notice of
termination; PROVIDED, HOWEVER, that any such termination shall not affect
SPSS's obligations under Section 7 hereof with respect to Qualified Cost of
Goods Sold or SPSS's obligation to pay, pursuant to Section 5 hereof, the pro
rata portion of the $400,000.00 payment for the period prior to such
termination.
15. MISCELLANEOUS.
15.1. INDEPENDENT CONTRACTOR. DeltaPoint is an independent
contractor. This Agreement shall not be construed as constituting DeltaPoint
and SPSS as partners or joint venturers, or as creating any other form of legal
association or arrangement which would impose liability upon one party for the
act or failure to act of the other party. Neither party shall have the right to
bind the other party or make any promises or representations on behalf of the
other party.
15.2. NOTICE. All notices required or desired to be given under this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered by messenger or by telecopy (promptly confirmed by mail), one day
after being sent by a nationally recognized overnight delivery service, freight
prepaid, or three days after mailed, by certified or registered mail, with
postage prepaid:
If to DeltaPoint:
DeltaPoint, Inc.
00 Xxxxx Xxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Ait
Facsimile No. (000) 000-0000
With a required copy to:
Wilson, Sonsini, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile No. (000) 000-0000
or to such other person or address as DeltaPoint shall furnish to SPSS in
writing by notice given in the manner set forth above.
If to SPSS:
SPSS Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Hamburg
Facsimile No. (000) 000-0000
With a required copy to:
Xxxx & Xxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: T. Xxxxxxx Xxxx
Facsimile No. (000) 000-0000
or to such other person or address as SPSS shall furnish to DeltaPoint in
writing by notice
given in the manner set forth above.
15.3. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois, without regard
to its conflict of laws principles.
15.4. COMPLETE AGREEMENT. This Agreement, together with any schedules
hereto and agreements referred to herein, constitutes the entire agreement and
understanding between the parties with respect to the subject matter contained
herein and supersede all prior agreements, covenants, representations,
warranties or understandings, whether oral or written, that may have existed or
may exist between the parties.
15.5. AMENDMENT AND MODIFICATION. Subject to applicable law, this
Agreement may be amended, modified and supplemented only by written agreement of
the parties.
15.6. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement as applied to a particular occurrence or
circumstance shall not affect the validity or enforceability of any other
provision of this Agreement or any other application of the provision found to
be invalid or unenforceable, as the case may be.
15.7. ASSIGNMENT. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of the other parties,
except by operation of law and except that SPSS may assign its rights and
obligations under this Agreement to any affiliate of SPSS owning the Assets. If
such assignment shall be made by SPSS, such affiliate shall be entitled to all
of the rights and shall assume all of the obligations of SPSS hereunder,
PROVIDED, THAT SPSS shall remain liable for the performance of such affiliate's
obligations under this Agreement.
15.8. WAIVER OF COMPLIANCE. Any failure of DeltaPoint, on one hand,
and SPSS, on the other, to comply with any obligation herein may be expressly
waived hereunder, but such waiver shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure. Any waiver must be in writing
and duly executed by the appropriate parties.
15.9. HEADINGS. The subject headings of the sections and paragraphs
of this Agreement are included for purposes of convenience only and shall not
affect the construction or interpretation of any provision of this Agreement.
15.10. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which, when taken together, shall be deemed an original and shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto, by their authorized
representatives, have executed this Agreement as of the date first written
above.
Attest: DELTAPOINT, INC.
By: /s/ XXXXXXX AIT
Name: Xxxxxxx Ait
Title: Chief Executive Officer
Attest: SPSS INC.
By: /s/ XXXXXX HAMBURG
Name: Xxxxxx Hamburg
Title: Executive Vice President
