Exhibit 10.2
EXECUTION COPY
COOPERATION AGREEMENT
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This Cooperation Agreement (the "Agreement") is made this 31st day of
March, 1997 (the "Effective Date") by and between Software AG ("SAG"), a German
corporation, with its principal place of business in Darmstadt, Germany, and
Software AG Americas, Inc. ("SAGA"), a Virginia corporation, with its principal
place of business in Reston, Virginia, USA.
WHEREAS, each of SAG and SAGA is the developer and/or owner of certain
computer software products; and
WHEREAS, prior to the Effective Date, SAGA has been an indirect wholly-
owned subsidiary of SAG; and
WHEREAS, SAGA has been distributing products of SAG, and providing
support and maintenance for such products, within the Territory (as defined
herein); and
WHEREAS, SAG has been distributing products of SAGA, and providing
support and maintenance for such products, outside the Territory; and
WHEREAS, until the Effective Date, the parties' relationship has been
subject to the terms of a Cooperation Agreement dated January 1, 1995, which is
hereby terminated and superseded by this Agreement; and
WHEREAS, the parties desire to continue their relationship with respect
to the distribution and maintenance of products, as it has been prior to the
Effective Date, except as specifically modified herein;
NOW THEREFORE, in consideration of the mutual promises contained herein,
the parties agree as follows:
1. Definitions
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1.1. "Affiliate," with respect to a party, means any corporation or
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other entity or person that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with,
such party.
1.2. "Change in Control" means a change in control of a party where,
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after the date hereof, any person, together with its Affiliates (i) becomes,
directly or indirectly, whether by merger, consolidation, purchase or any other
form of acquisition or transfer, the beneficial owner of 50% or more of the
combined voting power of such party's then outstanding securities or other
equity interests, (ii) otherwise acquires,
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directly or indirectly, the power to direct, or cause the direction of, the
management and policies of such party, whether through the ownership of
securities or other interests, by contract or otherwise, or (iii) acquires all
or substantially all of the assets of such party.
1.3. "Distributing Party," with respect to a SAG Product or SAGA
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Product, means SAGA or SAG, respectively, which is not the Originating Party,
but instead acquires rights with respect to the SAG Product or SAGA Product
pursuant to this Agreement.
1.4. "Distribution Charge" means either (i) an amount paid by a party to
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a third party for obtaining from an End User an order for Products or
Maintenance, which order is placed directly to such party, or (ii) the amount
retained by a Distributor for the distribution of Products or the enrollment of
End Users for Maintenance, which amount is determined by deducting from the
applicable Amounts Invoiced (as defined in Section 6.2) any amounts payable to
the party that appointed the Distributor.
1.5. "Distributor" means any distributor (including, but not limited to,
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a value added reseller, subdistributor, Affiliate, consultant, or systems
integrator) directly or indirectly appointed by SAG or SAGA to distribute
Products.
1.6. "End User" means a person or entity that has the right to use a
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Product pursuant to an End User Agreement with SAG, SAGA or a Distributor.
1.7. "End User Agreement" means an agreement between SAG, SAGA or a
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Distributor and an End User, pursuant to which the End User receives the right
to use a Product and/or Maintenance.
1.8. "First Level Support" means any technical support given by SAG or
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SAGA in response to an End User's request for Maintenance, which technical
support does not reasonably require access to or use of the Source Code for the
relevant Products.
1.9. "Maintenance" means the provision of reasonable and customary
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technical support services for Products to End Users, as generally described in
Section 4 of the form "Software License and Technical Services Agreement"
attached as Exhibit A and practiced by the parties prior to the Effective Date,
or as subsequently agreed by the parties, including, but not limited to,
supplying telephone support, new versions and releases, and periodic fixes and
error corrections.
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1.10. "Object Code" means the executable computer code related to a
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Product produced by processing (e.g., compiling, assembling or interpreting) the
Source Code.
1.11. "Originating Party," with respect to a SAG Product or SAGA
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Product, means SAG or SAGA, respectively, which developed the SAG Product or
SAGA Product or otherwise caused the SAG Product or SAGA Product to be brought
within the scope of this Agreement.
1.12. "Product" means either a SAG Product or a SAGA Product, as the
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case might be.
1.13. "SAG Product" means any presently existing or future computer
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software, including, but not limited to, computer programs, parts thereof,
documentation therefor and related materials, (i) that a SAG Entity develops or
has developed for it, whether through employees or independent contractors and
whether alone or with others, except as provided in Section 3.3, (ii) in which a
SAG Entity owns or acquires proprietary or license rights (other than under this
Agreement), (iii) announced as a product of a SAG Entity (other than by virtue
of its being licensed by SAGA under this Agreement), (iv) distributed or offered
for distribution by a SAG Entity (other than by virtue of its being licensed by
SAGA under this Agreement), or (v) which a SAG Entity has the right to
distribute within the Territory, at any time during the term of this Agreement;
provided that computer software that is or becomes a SAG Product solely because
it is a Third Party Product shall remain a SAG Product only for so long as SAG
has the right to grant SAGA rights hereunder with respect to such computer
software. For purposes of this Agreement, SAG computer software programs
intended for use on different platforms shall be deemed separate SAG Products.
The SAG Products shall include, but not be limited to, the products listed in
Exhibit B.
1.14. "SAGA Product" means any presently existing or future computer
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software, including, but not limited to, computer programs, parts thereof,
documentation therefor and related materials, (i) that a SAGA Entity develops or
has developed for it, whether through employees or independent contractors and
whether alone or with others, except as provided in Section 3.3, (ii) in which a
SAGA Entity owns or acquires proprietary or license rights (other than under
this Agreement), (iii) announced as a product of a SAGA Entity (other than by
virtue of its being licensed by SAG under this Agreement), (iv) distributed or
offered for distribution by a SAGA Entity (other than by virtue of its being
licensed by SAG under this Agreement), or (v) which a SAGA Entity has the right
to distribute outside the Territory, at any time during the
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term of this Agreement; provided that computer software that is or becomes a
SAGA Product solely because it is a Third Party Product shall remain a SAGA
Product only for so long as SAGA has the right to grant SAG rights hereunder
with respect to such computer software. For purposes of this Agreement, SAGA
computer software programs intended for use on different platforms shall be
deemed separate SAGA Products. The SAGA Products shall include, but not be
limited to, the products listed in Exhibit C.
1.15. "SAG Entity" means SAG, a successor to SAG, or an Affiliate of
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SAG.
1.16. "SAGA Entity" means SAGA, a successor to SAGA, or an Affiliate of
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SAGA.
1.17. "Second Level Support" means any technical support given by SAG or
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SAGA in response to an End User's request for Maintenance, which technical
support reasonably requires access to or use of the Source Code for the relevant
Products, but which is not Third Level Support.
1.18. "Source Code" means the human readable computer programming
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language code related to a Product.
1.19. "Technical Materials" means all of the Source Code, Object Code,
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user documentation and training materials for a Product, and any other technical
documentation prepared by or available to the Originating Party, or any
Affiliate of or successor to the Originating Party, in the normal course of its
operations related to the relevant Product, including, but not limited to, flow
diagrams, program design documents, programmer work papers, descriptions of data
structures, programming conventions and standards.
1.20. "Territory" means (i) the geographical area within the western
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hemisphere that is contained within the boundaries of 30(degrees) W longitude
through 170(degrees) W longitude, excluding Greenland, (ii) the additional
countries of Japan and Israel, and (iii) any additional islands in the Pacific
Ocean that have installations funded by the U.S. government.
1.21. "Third Level Support" means any technical support given by SAG or
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SAGA in response to an End User's request for Maintenance, which technical
support reasonably requires the involvement of the research and development
staff of the Originating Party.
1.22. "Third Party Product" means a Product developed by or for a third
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party other than a party's Affiliate that qualifies as a Product solely by
virtue of a limited license or
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distributorship granted to a SAG Entity or SAGA Entity, whether on an exclusive
or nonexclusive basis.
2. Rights Granted with Respect to Products
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2.1. Subject to the provisions of Section 2.3, SAG hereby grants to SAGA
a perpetual, irrevocable (except by written agreement of the parties), exclusive
(except as provided in Section 2.4) license under all of SAG's patents,
copyrights, trade secrets and other proprietary and license rights to (i)
reproduce, distribute, perform, display, transmit and otherwise use all SAG
Products within the Territory, (ii) adapt SAG Products in object code form only,
within the Territory, (iii) provide Maintenance for SAG Products to End Users
within the Territory, and (iv) authorize others to do the same. SAG expressly
retains all such rights outside the Territory.
2.2. Subject to the provisions of Section 2.3, SAGA hereby grants to SAG
a perpetual, irrevocable (except by written agreement of the parties), exclusive
(except as provided in Section 2.4) license under all of SAGA's patents,
copyrights, trade secrets and other proprietary and license rights to (i)
reproduce, distribute, perform, display, transmit and otherwise use all SAGA
Products outside the Territory, (ii) adapt SAGA Products in object code form
only, outside the Territory, (iii) provide Maintenance for SAGA Products to End
Users outside the Territory, and (iv) authorize others to do the same. SAGA
expressly retains all such rights within the Territory.
2.3. Notwithstanding the other provisions of this Agreement, each
party's rights hereunder with respect to a Third Party Product shall be subject
to the terms of the agreement between the Originating Party or its Affiliate and
a third party pursuant to which the Third Party Product becomes a Product. When
a party or its Affiliate acquires from a third party a license or
distributorship with respect to computer software that thereby becomes a Product
of such party, such party shall use its best efforts to permit the other party
to have the full rights contemplated by Section 2.1 or 2.2, as applicable, and
Section 3.5. Each party shall have the rights granted in Section 2.1 or 2.2, as
applicable, and Section 3.5, and have the obligations arising under this
Agreement, with respect to a Third Party Product to the maximum extent
consistent with the other party's or its Affiliate's agreements with the third
party. Thus, for example, and not as a limitation, if the Originating Party of
a Third Party Product is a nonexclusive distributor of such Third Party Product,
the Distributing Party shall, to the maximum extent consistent with
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the agreement appointing the Originating Party as a distributor, have a
subdistributorship in the relevant geographic area, exclusive as to the
Originating Party, but nonexclusive as to third parties likewise appointed as
distributors by the third party that appointed the Originating Party. Each
party granting rights under this Agreement with respect to a Third Party Product
shall inform the other party of the other party's rights and obligations as a
sublicensee or subdistributor under the agreements between such first party or
its Affiliate and the third party, and the other party shall comply with such
obligations. As of the Effective Date, there are certain agreements to which
one party to this Agreement is a party concerning one or more Products of the
other party, as Products are identified in Exhibits B and C, including, but not
limited to, the Value Added Reseller Agreement among Carleton Corporation,
Carleton Europe, SAGA and SAG dated April 14, 1995. Promptly after the
Effective Date, the parties shall use their best efforts to renegotiate or
otherwise restructure, such as through an assignment and delegation, any rights
and obligations of the parties under such agreements to be consistent with the
designation of the Originating Party through the inclusion of a Product in
Exhibit B or C and the respective rights and obligations of the parties under
this Agreement as a result thereof. To the extent that the parties have been
unable to do so, such as because a third party does not wish to renegotiate such
an agreement, or the parties otherwise have not done so, the parties' payment
obligations under this Agreement with respect to the relevant Third Party
Products shall be adjusted to obtain a financially-equivalent result and the
parties otherwise shall cooperate to give the Originating Party, as designated
in this Agreement, the benefits of such status. At the request of either party,
the parties shall take any actions reasonably required to confirm the parties'
respective rights and obligations with respect to Third Party Products.
2.4. SAGA, within the Territory, and SAG outside the Territory, each
shall, with respect to the other, be the sole and exclusive distributor of all
of the Products and of Maintenance therefor. The parties may, in their
discretion, waive such exclusivity for any Product, in any country, by mutual
written agreement. If either party believes it desirable to enter into either a
"Multinational End User Agreement" (i.e. an End User Agreement with an End User
that requires installation of Products in two or more countries) or a
"Multinational Distributor Agreement" (i.e. an agreement appointing a
Distributor authorized to enter into End User Agreements in two or more
countries) , and at least one of such countries is within the Territory and at
least one of such countries is outside the Territory, then (i) if the End User's
or Distributor's principal office or headquarters is within the
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Territory, SAGA may enter into such an agreement with SAG's written consent, and
(ii) if the End User's or Distributor's principal office or headquarters is
located outside the Territory, SAG may enter into such an agreement with SAGA's
written consent.
2.5. A Distributing Party shall distribute, and cause its Distributors
to distribute, the Products of the Originating Party only pursuant to End User
Agreements that contain provisions at least as protective of the interests of
the Originating Party as Sections 1.2, 5, 6, 7.3, 8, 10 and 13.3 of the form
"Software License and Technical Services Agreement" attached as Exhibit A, or
such other provisions that may be approved in writing by the Originating Party
from time to time; provided that such provisions may be modified as reasonably
required to conform to local law and business practice.
2.6. A Distributing Party shall distribute, and cause its Distributors
to distribute, each Product of the other party in Object Code form only, except
to the extent that the Originating Party distributes, or otherwise permits the
distribution of, the Source Code for the Product to third parties.
2.7. Each party shall use its best efforts to distribute Products of the
other party and provide Maintenance for such Products, either within the
Territory (in the case of SAGA) or outside of the Territory (in the case of
SAG), except to the extent that doing so would be in conflict with an obligation
that such party owes to a third party at the time the relevant Product becomes a
Product, such as a covenant not to compete in an agreement with a third party
appointing such party as a distributor of the third party's product.
3. Cooperation and Technical Assistance
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3.1. The parties shall use their best efforts to cooperate with each
other, and to provide each other information and assistance, as they have done
prior to the Effective Date or otherwise agree, in all aspects of the
development of Products, of the marketing and distribution of Products by SAGA
within the Territory and by SAG outside the Territory, and of the provision of
Maintenance by SAGA within the Territory and by SAG outside the Territory.
3.2. The parties shall form a "Strategic Advisory Board" consisting of
the Chief Executive Officer and Chief Technology Officer of each party. The
Strategic Advisory Board shall meet no less often than quarterly, together with
its members' respective advisors, if any, at mutually agreeable
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times and places. The Strategic Advisory Board shall provide a forum for
discussing matters of interest to either party. The Strategic Advisory Board
also shall provide a formal means for the exchange between the parties of
information relevant to their respective rights and obligations under this
Agreement, including, but not limited to, plans for new or modified Products,
marketing plans, information concerning functional, performance, technical,
operational and other characteristics, interfaces and features of Products,
Technical Materials and other information relating to Products. Within the
general provisions of this Section 3.2, the Strategic Advisory Board shall
establish its own operating rules and agenda.
3.3. The parties may from time to time desire to perform a joint Product
development project. Any such project shall be made the subject of a written
agreement addressing at least the following subjects: the scope of the project,
the allocation of project costs between the parties, the schedule for any
payments and the allocation of the proprietary rights arising from the project.
Notwithstanding the foregoing, unless the parties agree otherwise in writing, if
either party funds or has funded substantially all of the costs of any
development effort, that party shall own all of the proprietary rights arising
from that effort and any resulting computer software shall be a Product of such
funding party for purposes of this Agreement. Accordingly, for example, and not
as a limitation, if one party develops a Product, but the other party makes an
incidental contribution to the development of the Product, such as through the
consultations of the Strategic Advisory Board, such first party shall own all of
the proprietary rights arising from the development of the Product and any
resulting computer software shall be a Product of such first party for purposes
of this Agreement. In addition, as of the Effective Date and pursuant to a
separate agreement between the parties, certain designated employees of SAGA
perform computer software development for SAG under the management of SAG, and
SAG reimburses SAGA for all of its costs associated with such employees. For so
long as any such employees continue to be so designated, and SAG continues to
reimburse SAGA for such costs, SAG shall own all of the proprietary rights
arising from such development, and any computer software developed by such
designated employees of SAGA shall be a SAG Product for purposes of this
Agreement.
3.4. Each party acknowledges that for the other party effectively to
perform its obligations under this Agreement, and to receive the benefit of its
rights under this Agreement, the other party must have prompt, full and
unfettered access to Technical Materials in the possession of such first party.
The Originating Party shall provide to the other party, promptly after any
computer software becomes a "Product" hereunder,
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copies of the complete Source Code and Object Code for the Product, a reasonable
number of copies of any user documentation for the Product, and significant
existing Technical Materials relating to the Product, except that in the case of
a Third Party Product, such items only shall be provided to the extent legally
permitted under any applicable agreement between the Originating Party and the
third party proprietor of the Third Party Product. Thereafter, an Originating
Party shall provide Technical Materials relating to a Product to the other party
when requested by the other party or when such Originating Party determines that
doing so would materially enhance the other party's ability to develop, market,
distribute or provide Maintenance, except that in the case of a Third Party
Product, such Technical Materials only shall be provided to the extent legally
permitted under any applicable agreement between the Originating Party and the
third party proprietor of the Third Party Product.
3.5. Subject to the provisions of Section 2.3, each party hereby grants
the other party a perpetual, irrevocable (except by written agreement of the
parties), exclusive (except as provided in Section 2.4) license under all of the
licensor's patents, copyrights, trade secrets and other proprietary rights to
(i) reproduce, distribute, perform, display, transmit and otherwise use
Technical Materials, either within the Territory (in the case of SAGA) or
outside the Territory (in the case of SAG), (ii) adapt Technical Materials other
than the Source Code for Products, either within the Territory (in the case of
SAGA) or outside the Territory (in the case of SAG), and (iii) authorize others
to do the same to the extent that doing so is reasonably required in the
performance of their work on behalf of the licensee. Each party may use the
Technical Materials of the other party for any lawful purpose, to whatever
extent it deems appropriate to develop markets for Products and Maintenance,
either within the Territory (in the case of SAGA) or outside the Territory (in
the case of SAG). Such use may include, but is not limited to, development of
new interfaces and add-on Products; ports to other platforms; and making
performance improvements. Each party shall maintain the confidentiality of
Technical Materials of the other party as provided in Article 10. Each party
shall take reasonable and customary measures to assure that its employees,
agents, independent contractors and Distributors appropriately protect Technical
Materials of the other party, which in no event shall be less rigorous than the
measures that such first party takes to protect its own similar Technical
Materials.
3.6. To provide accountability for Technical Materials that either party
deems particularly sensitive, but without affecting the parties' rights and
obligations with respect to such Technical Materials, (i) a party providing
Technical
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Materials to the other party may require the other party to sign a receipt
therefor in the form of Exhibit D, and (ii) a party receiving Technical
Materials from the other party may require the other party to sign a transmittal
therefor in the form of Exhibit E.
3.7. Each party shall provide First Level Support and Second Level
Support for all Products installed or distributed, either within the Territory
(in the case of SAGA) or outside the Territory (in the case of SAG), except as
the parties may agree otherwise pursuant to Section 2.4. Each Originating Party
shall provide Third Level Support for its Products anywhere in the world. The
parties shall use their best efforts to coordinate the provision of Third Level
Support as described in the "Escalation Management Process Description" of
Exhibit F and as they have done prior to the Effective Date or otherwise agree.
3.8. SAG shall develop, and provide to SAGA under the terms of this
Agreement, year 2000 compliant versions of all SAG Products in accordance with
the schedule set forth in Exhibit G, unless the parties agree otherwise in
writing. If either party requests a modification to such schedule, and the
parties cannot otherwise reach agreement concerning the modification, the
request shall be presented to the Strategic Advisory Board, which may approve a
modification to such schedule by unanimous vote of all its members. For the
purpose of this Section 3.8, a "year 2000 compliant" Product at least (i)
accommodates date values, and accurately processes date data, from years in the
same century and in different centuries, and (ii) will neither fail due to, nor
produce incorrect results in, date-related processing, including, but not
limited to, in connection with dates after 1999. SAG shall identify all such
year 2000 compliant SAG Products to SAGA in writing. The year 2000 compliance
of such SAG Products is subject to verification by SAGA, at SAGA's cost, using a
third party consultant mutually acceptable to SAG and SAGA.
4. Marketing of Products
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4.1. Each party shall use its best efforts to develop markets for
Products of the other party and for Maintenance for such Products, either within
the Territory (in the case of SAGA) or outside of the Territory (in the case of
SAG), except to the extent that doing so would be in conflict with an obligation
that such party owes to a third party at the time the relevant Product becomes a
Product, such as a covenant not to compete in an agreement with a third party
appointing such party as a distributor of the third party's product.
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4.2. Unless the parties agree otherwise in writing, each party shall
structure its agreements appointing Distributors and otherwise conduct its
business so that (i) for each End User license for a Product granted by a
Distributor, a license fee is paid by the End User to the Distributor and an
amount is paid by the Distributor to the party that has appointed the
Distributor, (ii) license fees and other amounts payable are fairly allocated to
Products and there is no other unfair discrimination between SAG Products and
SAGA Products.
4.3. SAG hereby grants to SAGA a perpetual, irrevocable (except by
written agreement of the parties), exclusive (except as provided in Section 2.4)
license under all of SAG's trademark, service xxxx and trade name rights to (i)
use SAG's trademarks, service marks and trade names within the Territory and
(ii) authorize others to do the same. Such trademarks, service marks and trade
names shall include, but not be limited to those listed in Exhibit H. SAGA
hereby grants to SAG a perpetual, irrevocable (except by written agreement of
the parties), exclusive (except as provided in Section 2.4) license under all
of SAGA's trademark, service xxxx and trade name rights to (i) use SAGA's
trademarks, service marks and trade names outside the Territory and (ii)
authorize others to do the same. Such trademarks, service marks and trade names
shall include, but not be limited to, those listed in Exhibit I.
4.4. Any use by the licensee of a trademark, service xxxx or trade name
licensed under Section 4.3 shall be (i) consistent with the high quality image
of the parties so as to enhance the trademarks, service marks and trade names
licensed under Section 4.3 and the goodwill relating thereto, and (ii) generally
as used prior to the Effective Date or otherwise agreed. A licensee under
Section 4.3 shall identify the trademarks, service marks and trade names
licensed under Section 4.3 as such, including, but not limited to, through
appropriate use of the symbols "(TM)" and "(R)" or other means appropriate
under applicable law. Each licensee under Section 4.3 acknowledges the
ownership and validity of the trademarks, service marks and trade names licensed
under Section 4.3 and shall do nothing inconsistent with such validity and
ownership. All uses of the trademarks, service marks and trade names licensed
under Section 4.3 shall inure to the benefit of the licensor. A licensee under
Section 4.3 shall employ appropriate quality control standards and cooperate
with the licensor's efforts to verify that it does so.
4.5. Each party may from time to time elect to develop advertising or
other promotional materials relating to Products (collectively, "Advertising
Materials"). If so, it shall provide the other party a copy in printed and
electronic format of any Advertising Materials that it distributes. Each party
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hereby grants the other party a perpetual, irrevocable (except by written
agreement of the parties), exclusive (except as provided in Section 2.4) license
under all of the licensor's copyrights and other proprietary rights to (i)
reproduce, adapt, distribute, perform, display, transmit and otherwise use
Advertising Materials, either within the Territory (in the case of SAGA) or
outside the Territory (in the case of SAG), and (ii) authorize others to do the
same. A party distributing Advertising Materials in a particular jurisdiction
shall be solely responsible for the contents of such materials and for
compliance with requirements of local law in their distribution.
4.6. As of the Effective Date, SAG may be a party to certain agreements
appointing a Distributor in the Territory or with an End User in the Territory,
and SAGA may be a party to certain agreements appointing a Distributor outside
the Territory or with an End User outside the Territory. Promptly after the
Effective Date, the parties shall use their best efforts to renegotiate or
otherwise restructure, such as through an assignment and delegation, any rights
and obligations of the parties under such agreements to be consistent with the
parties' respective rights and obligations under this Agreement in the relevant
geographic areas. To the extent that the parties have been unable to do so,
such as because the Distributor or End User does not wish to renegotiate such an
agreement, or the parties otherwise have not done so, the parties' payment
obligations under this Agreement shall be adjusted to obtain a financially-
equivalent result and the parties otherwise shall cooperate to give the party in
the geographic area of which each such Distributor distributes Products, or each
such End User is located, the benefits of this Agreement. At the request of
either party, the parties shall take any actions reasonably required to confirm
the parties' respective rights and obligations with respect to a Distributor or
End User.
5. User Documentation and Other End User Materials
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5.1. An Originating Party promptly shall provide the Distributing Party
a copy in printed and electronic format of the user documentation or other
materials that the Originating Party generally distributes with a Product.
5.2. Each party shall make available for purchase by the other party
additional copies of user documentation or other materials that the Originating
Party generally distributes with a Product as well as any available Advertising
Materials and available software media and "PC-Kits." All such materials shall
be provided F.O.B. place of shipment, at
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production cost, excluding freight, insurance, import duties, sales tax, VAT and
other taxes, in accordance with price lists provided by each party to the other
from time to time.
6. Payments
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6.1. As consideration for the termination of the Cooperation Agreement
between the parties dated January 1, 1995, and its replacement with this
Agreement, SAGA shall pay SAG on the Effective Date the sum of thirty-eight
million Deutsche Marks (38 million DM).
6.2. From the Effective Date through December 31, 2017, and thereafter
unless the parties agree otherwise in writing, (i) SAGA shall pay SAG twenty-
four percent (24%) of SAGA's "Net Revenues" (as defined below) from the
distribution of SAG Products and the provision of Maintenance for SAG Products
within the Territory, and SAG shall pay SAGA twenty-four percent (24%) of SAG's
Net Revenues from the distribution of SAGA Products and the provision of
Maintenance for SAGA Products outside the Territory. For the purpose of this
Section 6.2, "Net Revenues" shall be computed as follows:
Net Revenues = Amounts Invoiced
- External Distribution Charges
- Third Party Obligations
- Japan Adjustment
Where:
"Amounts Invoiced" are the gross amounts invoiced by a party or one
of its Distributors (and any additional amounts not invoiced but
recognized as revenue in accordance with the relevant entity's revenue
recognition policies) for the distribution of Products of the other party
and the provision of Maintenance for such Products to End Users (less
applicable interest income and all sales, use, VAT and other taxes), and
other revenues, such as amounts recovered by a party for infringement of
proprietary rights licensed to that party hereunder (less attorneys' fees
and other expenses incurred to recover such amounts).
"External Distribution Charges" are Distribution Charges for the
distribution of Products of the other Party or the enrollment of End
Users for Maintenance for such Products that are payable to or retained
by a third party that is not an Affiliate of a party.
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"Third Party Obligations" are amounts due to a third party other
than an Affiliate of a party pursuant to an agreement for the
acquisition, or for the right to distribute, the relevant Product. (The
Originating Party shall notify the Distributing Party when there are
Third Party Obligations for a Product, and the Distributing Party
promptly shall remit such amounts to the Originating Party for
disbursement to the third party.)
"Japan Adjustment" equals 76% of the aggregate amounts owed or
payable to a party with respect to the distribution of Adabas C on Unix,
Windows/NT and VAX platforms, and the provision of Maintenance therefor,
in Japan prior to October 1, 2006. This adjustment is only applicable to
the computation of Net Revenues owed by SAGA to SAG.
6.3. Each Distributing Party shall report to the Originating Party all
its relevant Amounts Invoiced, External Distribution Charges and Third Party
Obligations in detail within sixty (60) days after the end of the month in which
they occur. Based on each such report, which report shall be substantially in
the form attached hereto as Exhibit J, the Originating Party may invoice the
Distributing Party for the applicable payment under Section 6.2.
6.4. From time to time, a Distributing Party may fail to collect from an
End User or Distributor amounts for which payments have been made under Section
6.2, including, but not limited to, as a result of product problems, warranty
claims, bad debt or the cancellation or termination of an End User Agreement (it
being understood that amounts collected from an End User or Distributor and then
credited back to the End User or Distributor, such as when an End User "trades
in" a Product to obtain a different Product, are not amounts that the
Distributing Party has failed to collect from the End User or Distributor). If
such failure continues for one hundred and twenty (120) days after such amounts
accrue as Amounts Invoiced, the amounts payable under this Agreement shall be
adjusted to reflect such failure, and the Distributing Party shall receive an
appropriate credit for any Amounts Invoiced with respect to which payment has
not been received by the Distributing Party. If the Distributing Party
thereafter receives a payment for which it has received such a credit, such
payment shall be treated as Amounts Invoiced in the month in which the payment
is received.
6.5. For the calendar years 1997 through and including 2000, SAGA shall
pay to SAG a minimum annual aggregate payment under this Agreement of twenty-one
million
- 15 -
U.S. dollars ($21 million); provided that if SAG's Worldwide Revenues in 1998,
1999, or 2000 are less than SAG's published 1996 Worldwide Revenues, then such
minimum annual aggregate payment shall be reduced proportionately for that year
and each subsequent year through 2000. For purposes of this Section 6.5,
"Worldwide Revenues" for any year shall consist of revenues derived during such
year by SAG from the distribution of SAG Products and Maintenance for SAG
Products and shall be determined on a basis consistent with past practice,
except that such revenues shall be calculated based on the currency exchange
rates utilized to determine SAG's published 1996 Worldwide Revenues. Should the
amounts payable to SAG under Section 6.2 for any year be less than the minimum
annual aggregate payment under this Section 6.5 for such year, SAG may invoice
SAGA for the difference when SAG invoices SAGA for the payment under Section 6.2
for December of such year.
6.6. SAGA shall not consummate a Change in Control of SAGA after January
1, 1999, or permit a Change in Control of SAGA to be consummated after such
date, involving the sale of a controlling interest in SAGA or all or
substantially all of the assets of SAGA to any of Oracle Corporation, Sybase,
Inc. or Informix Corporation unless the successor of SAGA following the Change
in Control has agreed in a writing in which SAG is expressly identified as an
intended third party beneficiary that such successor shall pay to SAG a minimum
annual aggregate payment under this Agreement from the later of (i) the first
day of the month following the month during which the Change in Control occurs
(such first day being referred to herein as the "Trigger Date") and (ii) January
1, 2001, through the date which is two years from the Trigger Date (such period
being referred to herein as the "Payment Period"). During the Payment Period,
the minimum annual aggregate payment required by this Section 6.6 shall equal
eighty percent (80%) of the average annual payment under Section 6.2 of this
Agreement for the twenty-four (24) months preceding the month in which the
Change in Control occurs, provided, however, that such minimum payment shall be
applied on a pro rated basis for any Payment Period (or part thereof that
extends beyond one year) that is less than a full year. If the amounts payable
to SAG under Section 6.2 with respect to the Payment Period (or part thereof)
are less than required under this Section 6.6, SAG may invoice SAGA's successor
for the difference when SAG invoices SAGA's successor for the payment under
Section 6.2 for the last month of the applicable period.
6.7. All payments due to either party under this Agreement shall be due
thirty (30) days after the date of the applicable invoice, or if such due date
is a Saturday, Sunday or legal holiday observed by either party, the first
business day thereafter.
- 16 -
6.8. If any payment due hereunder is received after the date when due,
such payment will accrue interest at a rate equal to the currency-related FIBOR
rate available on the due date, plus three percent (3%).
7. Records, Reports and Audits
---------------------------
7.1. Each party shall prepare and maintain complete and accurate books
and records documenting its distribution of Products and provision of
Maintenance pursuant to this Agreement and its receipt of all fees and other
revenues related thereto. Each party shall maintain such books and records for
a minimum of three (3) years from the date of distribution of Products or
provision of services, respectively.
7.2. Within thirty (30) days following the end of each calendar quarter,
each party shall provide the other with a copy of the standard package of
financial information it uses for its own internal reporting purposes for such
quarter. In addition, within six (6) months following the end of each calendar
year, each party shall provide the other with a copy of its audited consolidated
financial statements, including a balance sheet and statement of income, as of
the end of such year.
7.3. During the term of this Agreement and for one (1) year thereafter,
each party shall have the right, one time during each calendar year, at its
expense and upon reasonable notice, to examine or have examined by its
authorized representative, the other party's books and records relating to the
immediately preceding calendar year in order to determine or verify performance
under this Agreement, the amounts due hereunder and the accuracy of any reports
furnished hereunder.
8. Warranties and Limitation of Liability
--------------------------------------
8.1. Each party represents and warrants that it has the right to enter
into this Agreement and to grant the other party the rights granted herein.
8.2. Each party represents and warrants that its Products will conform
with the related Product documentation it provides. A party's sole obligation
with respect to any Product or documentation errors will be to use its best
efforts to correct, at its expense, any error about which it receives written
notice. The warranty and obligations of this Section 8.2 are contingent upon
proper use of a Product and
- 17 -
shall not apply to the extent that any failure is caused by (i) modification of
a Product by the other party or by any third party without prior written
approval or (ii) use of a Product in a hardware or software environment other
than the environment in which the Product is intended to be used, as described
in the Product's documentation at the time of such use.
8.3. Each party represents and warrants that its Products do not contain
any virus, Trojan horse, worm, or other software designed to permit unauthorized
access to, or improperly to modify, delete, damage, deactivate or disable, any
software, hardware, or data.
8.4. THE FOREGOING EXPRESS WARRANTIES ARE IN LIEU OF ANY AND ALL OTHER
WARRANTIES. EACH PARTY, WITH RESPECT TO ITS PRODUCTS, DISCLAIMS ANY AND ALL
OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
8.5. No party hereto shall be liable in any event for any damages
incurred by the other party or by any other person or entity as a result of any
misuse of any of the Products, even if such first party had been advised of the
possibility of such damages. The parties shall not be liable for any
consequential, special, or incidental damages, lost profits, or for any claim or
demand against them by any other person or entity, except as provided in Article
9 with respect to claims for indemnification thereunder.
9. Indemnities
-----------
9.1. Subject to Section 9.4, the Originating Party shall defend,
indemnify and hold harmless the Distributing Party, its Affiliates and their
respective employees, agents, independent contractors, Distributors and End
Users from and against any claims, losses, damages, liabilities and costs
(including, but not limited to, reasonable attorneys' fees) ("Claims") relating
to or resulting from infringement of any third party's patent, copyright or
other proprietary rights by the Originating Party's Products or the distribution
or use thereof, except to the extent that a Claim is based on modification of a
Product without authorization of the Originating Party. In the event an
infringement is found, the Originating Party shall use its best efforts promptly
to obtain a license for the continued distribution and use of the affected
Products, replace the affected Products with substantially equivalent
noninfringing products or modify the affected Products so that they are
noninfringing.
- 18 -
9.2. Subject to Section 9.4, the Distributing Party shall defend,
indemnify and hold harmless the Originating Party, its Affiliates and their
respective employees and agents from and against any Claims relating to or
resulting from modification of a Product by the Distributing Party.
9.3. Subject to Section 9.4, each party shall defend, indemnify and hold
harmless the other party, its Affiliates and their respective employees and
agents from and against any Claims relating to or resulting from (i) the
indemnitor's breach of this Agreement or an End User Agreement or (ii) the
negligence of the indemnitor, its Affiliates and their respective employees and
agents, including, but not limited to, Claims relating to or resulting from
inadequate installation of Products and inadequate Maintenance.
9.4. Each of the foregoing indemnities is subject to the following
conditions:
9.4.1. An indemnified person or entity promptly shall notify the
indemnifying party in writing of any Claim (provided that the failure of
an indemnified person or entity to provide prompt notice shall not
relieve the indemnifying party of its obligations under this Article 9,
except to the extent that the indemnifying party is actually prejudiced
by such failure);
9.4.2. The indemnifying party shall have the right, if it so
chooses, to control and direct, at its expense and through counsel of its
choosing, the investigation and defense of any third party Claim, but may
compromise or settle the same only with the consent of the indemnified
person or entity, which consent shall not be unreasonably withheld. The
indemnified person or entity shall cooperate fully with the indemnifying
party in the defense of any such Claim.
9.5. Upon receipt of a notice of a Claim for indemnification, the
indemnifying party shall promptly pay to the indemnified person or entity the
amount of such Claim in accordance with and subject to the provisions of this
Article 9, provided, however, that no such payment shall be due during any
period in which the indemnifying party is contesting in good faith either its
obligation to make such indemnification or the amount of the Claim that is
payable.
- 19 -
10. Confidentiality
---------------
10.1. For the purpose of this Article 10, the term "Confidential
Information" means any information used in or relating to the business of one
party or its Affiliates (collectively, the "Disclosing Party"), including, but
not limited to, the Disclosing Party's Product plans, Technical Materials and
financial and customer information, that the Disclosing Party maintains in
confidence, and all tangible embodiments of such information, that is received
by the other party or its Affiliates (the "Receiving Party"), or to which the
Receiving Party has access, in any form; provided that "Confidential
Information" does not include any information that the Receiving Party can
demonstrate (i) is or becomes publicly known through no fault of the Receiving
Party; (ii) is developed independently by the Receiving Party; or (iii) is
rightfully obtained by the Receiving Party from a third party not obligated to
preserve its confidentiality who did not receive the material or information
directly or indirectly from the Disclosing Party.
10.2. A Receiving Party shall not use the Disclosing Party's
Confidential Information for any purpose other than in accordance with this
Agreement and shall not disclose Confidential Information to any person or
entity other than its employees and agents, and its independent contractors and
Distributors, which persons and entities have a need to know such Confidential
Information and each of which is subject to a nondisclosure obligation
comparable in scope to this Article 10.
10.3. Notwithstanding Section 10.2, a Receiving Party may disclose
Confidential Information to the extent required by a court or other governmental
authority, provided that (i) the Receiving Party gives the Disclosing Party
reasonable notice of the disclosure, (ii) the Receiving Party uses reasonable
efforts to resist disclosing the Confidential Information, and (iii) upon
request of the Disclosing Party, the Receiving Party cooperates with the
Disclosing Party to obtain a protective order or otherwise limit the disclosure.
10.4. The parties acknowledge that either party's breach of Section 10.2
would cause the other party irreparable injury for which it would not have an
adequate remedy at law. In the event of a breach, the non-breaching party shall
be entitled to injunctive relief in addition to any other remedies it may have
at law or in equity, without having to prove any actual damages sustained.
- 20 -
11. Certain Additional Matters
--------------------------
11.1. During the term of this Agreement, except as provided in Section
2.4, or with the written consent of the other party, neither party shall, nor
shall such party permit its Affiliates or the employees or agents of such party
or its Affiliates to, directly or indirectly (i) engage, or assist any other
person or legal entity to engage, in the distribution of computer software or
provision of computer software-related services, or in any other business in
which the other party is then actively engaged, or (ii) solicit, actively
interfere with the other party's relationship with (or the relationship of such
other party's Affiliates or Distributors with), or attempt to divert or entice
away, any employee, licensee or customer of such other party, in each of clauses
(i) and (ii) either within the Territory (in the case of SAG) or outside of the
Territory (in the case of SAGA); provided that any party and its Affiliates may
collectively own a passive investment of not more than ten percent (10%) of the
stock of any corporation. Each party acknowledges that its obligations under
this Article 11 are founded upon valuable consideration, necessary to protect
the legitimate interests of the other party (including, but not limited to, the
rights granted pursuant to this Agreement), and reasonable with respect to
geographic and temporal scope.
11.2. During the term of this Agreement, before either party or its
Affiliates may assign, grant any exclusive license with respect to, or otherwise
transfer (each such act a "Transfer"), proprietary rights with respect to one of
its Products, either within the Territory (in the case of SAGA) or outside of
the Territory (in the case of SAG) (such Transfers being precluded by this
Agreement outside the Territory (in the case of SAGA) or within the Territory
(in the case of SAG)), the other party shall be offered the following rights
with respect to such Product:
11.2.1. The transferring party shall first deliver a written
notice to the other party stating (i) that the transferring party desires
to make a Transfer of such proprietary rights, (ii) the nature of the
proposed Transfer and (iii) the price and other material terms of the
proposed Transfer. Such notice shall be accompanied by a certificate of
the transferring party certifying that it has received from a third party
a bona fide offer to acquire such proprietary rights at such price and on
such terms as are set forth in the notice and shall identify such third
party.
11.2.2. Within thirty (30) days after receipt of a notice as
described in Paragraph 11.2.1, the other
- 21 -
party may elect, by delivering to the transferring party a written notice
of its election, to acquire the proprietary rights with respect to the
Product on the same terms and conditions specified in such notice. In
the event that the other party does so, the parties shall consummate the
Transfer within ninety (90) days after the date that the other party
receives the notice described in Paragraph 11.2.1.
11.2.3. To the extent the other party does not exercise its
rights under Paragraph 11.2.2 within the time period specified therein,
the transferring party may Transfer such proprietary rights to the third
party specified in the notice described in Paragraph 11.2.1 at such price
and on such terms as are set forth in such notice, provided that (i) such
Transfer is consummated within one hundred twenty (120) days of the date
of delivery of such notice and (ii) prior to the Transfer, such third
party agrees in writing, in a form satisfactory to the other party and as
a condition of the Transfer, that such third party shall assume all of
the obligations of the transferring party under this Agreement relevant
to the proprietary rights transferred and the Products embodying such
proprietary rights, and that such proprietary rights shall be subject to
the rights of the other party under this Agreement.
11.3. SAG shall not consummate a Change in Control of SAG or permit a
Change in Control of SAG to be consummated unless the successor of SAG following
the Change in Control has agreed, in a writing in which SAGA is expressly
identified as an intended third party beneficiary, that such successor shall
continue to support the research and development of SAG Products existing or
planned before the Change in Control was contemplated and that, in each of the
two (2) years following the Trigger Date (as defined in Section 6.6), such
successor shall spend an amount on research and development for SAG Products
that is at least equal to eighty percent (80%) of SAG's average annual research
and development expenses for SAG Products for the twenty-four calendar months
preceding the month in which the Change in Control occurs.
11.4. Unless the parties agree otherwise in writing, in the event of a
Change in Control of either party, the parties shall cooperate to identify and
document all of the then existing Products of the party that is the subject of
the Change in Control as of the date of the Change in Control, including
Products at all stages of development, whether or not announced to the public as
available for distribution. Unless the parties agree otherwise in writing, the
party that is the subject of the Change in Control shall not consummate the
- 22 -
Change in Control or permit the Change in Control to be consummated unless the
successor of such party following the Change in Control has agreed in writing
(i) to be bound by all of the terms of this Agreement relevant to such existing
Products to the same extent as the party that is the subject of the Change in
Control, (ii) that all of the terms of this Agreement relevant to such existing
Products shall apply to future products of such successor derived in any
material respect from such Products, and (iii) that the other party is an
intended third party beneficiary of such agreements required by clauses (i) and
(ii).
11.5. If either party enters into negotiations or material discussions
relating to a potential transaction that could involve a Change in Control of
such party, such party shall promptly notify the other party hereto in writing
of such discussions or negotiations.
11.6. In addition to the parties' rights and obligations under Sections
11.2 and 12.2, during the term of this Agreement, before SAG decides to stop
further enhancement or support of Adabas C for the Unix, Windows/NT or VAX
platforms, SAG shall notify SAGA in writing of the extent to which SAG is
considering doing so. Within thirty (30) days after receipt of such a notice
(the "Election Period"), SAGA may elect, by delivering to SAG a written notice
of its election, to continue such enhancement and support to the extent that SAG
is considering stopping it. If SAGA makes such an election, then the parties
promptly shall negotiate in good faith an arrangement whereby (i) the Products
for which SAG is considering stopping further enhancement or support shall
become SAGA Products for all purposes under this Agreement at no charge to SAGA,
and (ii) after the parties' agreement to such an arrangement, SAGA shall bear
the costs of ongoing enhancement and Third Level Support of such Products. The
parties shall structure such an arrangement so that it does not constitute
"Software AG decid[ing] to stop further enhancement and support" of such
Products within the meaning of paragraph 4 of the letter dated October 2, 1996
from Xxxxx Xxxxxxx to Xxxxxxxx Xxxxx. SAG shall not decide to stop further
enhancement or support of Adabas C for the Unix, Windows/NT or VAX platforms
unless such Election Period has expired without such an election by SAGA.
12. Term, Termination and Remedies
------------------------------
12.1. This Agreement shall be perpetual from the Effective Date unless
terminated by the written agreement of the parties. Notwithstanding either
party's breach of this Agreement, this Agreement shall not be terminable other
than by
- 23 -
the written agreement of the parties. In the event of a breach, the non-
breaching party shall be entitled to money damages, specific performance or
other remedies available at law or in equity, but not to termination or
rescission of this Agreement.
12.2. In the event that either party (the "Nonperforming Party") (i)
fails materially to fulfill its obligation under Section 3.7 to provide Third
Level Support for its Products to End Users of either party, and fails to remedy
that breach within thirty (30) days after receiving written notice of such
breach from the other party or (ii) becomes insolvent or enters into bankruptcy,
liquidation, dissolution or proceedings of a similar nature, then the other
party (the "Performing Party") may elect in writing to assume responsibility
for providing Third Level Support to all or any of its End Users of all or any
of the Nonperforming Party's Products. To the extent that the Performing Party
makes such an election, it thereafter shall be excused from making any payment
under Section 6.2 for the provision of Maintenance for those Products to those
End Users and for any additional distributions of those Products and provision
of Maintenance therefor; the Nonperforming Party thereafter shall be excused
from any obligations hereunder that are expressly assumed by the Performing
Party. Notwithstanding any assumption by the Performing Party of any
responsibilities hereunder, the Nonperforming Party shall remain liable for any
breach by it of this Agreement. In the event that the Performing Party elects
to assume responsibility for providing Third Level Support with respect to any
Product of the Nonperforming Party, the licenses granted by the Nonperforming
Party to the Performing Party under Section 2.1 or 2.2 and Section 3.5 shall
automatically be expanded to include a perpetual, irrevocable (except by written
agreement of the parties), exclusive (except as provided in Section 2.4) license
to adapt such Product in Source Code form, including, but not limited to, by
developing modifications and enhancements to such Product.
13. Notices
-------
All notices or other communications which are required or permitted
hereunder shall be in writing and sufficient if delivered personally, by
facsimile or sent by overnight express or by registered or certified mail,
postage prepaid, addressed as follows:
- 24 -
If to SAG:
Software XX
Xxxxxxxxxxxxx 00, X-00000
Xxxxxxxxx, Xxxxxxx
Attention: Xx. Xxxxx Xxxxxxx
Facsimile: 00-0000-000000
with a copy to:
Software XX
Xxxxxxxxxxxxx 00, X-00000
Xxxxxxxxx, Xxxxxxx
Attention: Xxxxxxxxx Xxxxxx
Facsimile: 00-0000-000000
If to SAGA:
Software AG Americas, Inc.
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx XxXxxxxx
Facsimile: 000-000-0000
All such deliveries shall be deemed effective when received by the person
entitled to such receipt or when delivery has been attempted but refused by such
person. Any party may change the person or address to which such deliveries
shall be made with respect to such party by delivering notice thereof to the
other party hereto in accordance with this Article 13.
14. Miscellaneous
-------------
14.1. This Agreement is confidential, and neither party shall disclose
it without the prior written consent of the other party to any third party,
other than its attorneys, consultants, accountants, auditors and others to whom
a party has a bona fide business reason for disclosing the Agreement; provided
that each party may disclose this Agreement as may be required by law or to
enforce the provisions hereof.
14.2. To the extent that either party has copyright or other
proprietary rights with respect to a Product identified in Exhibit B or C as
being a Product of the other party, such first party hereby irrevocably assigns
to such other party its entire right, title and interest in and to such
proprietary rights.
14.3. Each party shall take such actions, and sign such documents, as
reasonably may be requested by the other party to
- 25 -
obtain, confirm, maintain or enforce the rights granted in this Agreement.
14.4. A party receiving an exclusive license hereunder shall have the
exclusive right to enforce any proprietary rights so licensed, either within the
Territory (in the case of SAGA) or outside the Territory (in the case of SAG).
If reasonably required to do so, the licensee may join the licensor as a
plaintiff.
14.5. The parties shall use the English language in exchanging all
documents and other information exchanged between them.
14.6. The provisions of this Agreement are severable, and the
unenforceability of any provision of this Agreement shall not affect the
enforceability of the remainder of this Agreement. The parties acknowledge that
it is their intention that if any provision of this Agreement is determined by a
court to be invalid, illegal or unenforceable as drafted, that provision should
be construed in a manner designed to effectuate the purpose of that provision to
the greatest extent possible under applicable law.
14.7. The rights and remedies provided in this Agreement are, to the
extent permitted by law, cumulative and not exclusive of any other right or
remedy now or hereafter available at law or in equity. Neither asserting a
right nor employing a remedy shall preclude the concurrent assertion of any
other right or employment of any other remedy, nor shall the failure to assert,
or the delay in asserting, any right or remedy constitute a waiver of that right
or remedy.
14.8. The rights of the parties under this Agreement are unique, and
the failure of a party to perform its obligations hereunder would irreparably
harm the other party. Accordingly, the parties shall, in addition to such other
remedies as may be available at law or in equity, have the right to enforce
their rights hereunder by actions for specific performance to the extent
permitted by law.
14.9. Except as specifically provided in this Agreement, no party may
assign any of its rights or delegate its obligations hereunder without the
written consent of the other party; provided that in the event of a Change in
Control of a party, such party may assign all of its rights and delegate all of
its obligations under this Agreement to the successor of such party following
the Change in Control, if such successor agrees in a writing in which the other
party is expressly identified as an intended third party beneficiary to assume
all of the obligations of such party under this
- 26 -
Agreement. Any purported assignment or delegation in violation of this Section
14.9 shall be void. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors, permitted assigns and
legal representatives.
14.10. This Agreement may be modified or amended only by written
agreement of the parties.
14.11. The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the Commonwealth of Virginia
applicable to agreements made and entirely to be performed within such
jurisdiction. The party bringing any action under this Agreement shall only be
entitled to choose the federal or state courts in the Commonwealth of Virginia
as the venue for such action, and each party consents to the jurisdiction of the
court chosen in such manner for such action.
14.12. This Agreement may be executed in any number of counterparts,
and each such counterpart shall be deemed to be an original instrument, but all
such counterparts together shall constitute but one agreement.
14.13. This Agreement and the Recapitalization Agreement dated as of
March 18, 1997 among SAG, Software AG Systems, Inc. ("Systems"), Xxxxxx Equity
Investors III, L.P. and certain managers of Systems, including their respective
exhibits and attachments, constitute the entire agreement between the parties
with respect to the subject matter hereof and supersede all previous agreements,
written or oral, with respect to the subject matter hereof, including, but not
limited to, the Cooperation Agreement dated as of January 1, 1995 between the
parties hereto.
- 27 -
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Agreement to be executed as of the day and year first
above written.
SOFTWARE AG
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Xx. Xxxxx Xxxxxxx
Chairman of the Board
and
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------------
Xxxxxx Xxxxxxxx
Board Member
SOFTWARE AG AMERICAS, INC.
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxxx
President and Chief
Executive Officer
