Exhibit 10.12.1
AMENDMENT ONE TO MASTER SERVICES AGREEMENT
This Amendment One ("Amendment One") to the parties' Master Services
Agreement dated December 7, 1999 ("Master Services Agreement") is entered into
by and between Lante Corporation ("Lante") and Dell Products L.P. ("Dell") on
December 27, 2001.
WHEREAS, Lante and Dell entered into the Master Services Agreement which
provides for certain minimum revenue commitments as described in the Master
Services Agreement; and
WHEREAS, a dispute has arisen concerning Dell's performance of the minimum
revenue commitments under the Master Services Agreement for certain time
periods, and the parties desire to settle and resolve all claims and contentions
which they may have or assert with respect to such dispute; and
WHEREAS, in order to compromise and to bring about a resolution of the
dispute between them, the parties desire to amend the Master Services Agreement,
consistently with the terms of paragraph 11.9 thereof;
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1. Dell hereby agrees to transfer and assign to Lante 2,000,000 shares
(the "Shares") of common stock of Lante, free and clear of all liens and
encumbrances.
(a) In connection with the transfer of the Shares, Dell represents as
follows:
(i) Dell is the legal and beneficial owners and has good and valid
title to all of the Shares to be transferred by Dell to Lante
hereunder, free and clear of all liens, encumbrances, equities
or claims; and upon delivery of the
Shares, good marketable and valid title to such shares, free
and clear of all liens, encumbrances, changes, pledges,
equities or claims, will pass to Lante.
(ii) Dell has no liability or obligation to pay any fees or
commissions to any broker, finder, or agent with respect to
the transfer of the Shares to Lante.
(b) In connection with the transfer of the Shares, Lante represents that
(i) it is not acquiring the Shares with a view to or for sale in connection with
any distribution thereof within the meaning of the Securities Act of 1933, as
amended; and (ii) it has no liability or obligation to pay any fees or
commissions to any broker, finder, or agent with respect to the transfer of the
Shares to Lante.
2. With respect to the period designated in paragraph 1.2 of the Master
Services Agreement as "Year 1," the parties agree that Dell has fully satisfied
its minimum revenue obligation to Lante. With respect to the period designated
in paragraph 1.2 of the Master Services Agreement as "Year 2," Dell shall be
deemed to have fully satisfied its minimum revenue obligation to Lante upon
delivery of the Shares to Lante. This stock transfer shall be completed no later
than December 31, 2001.
3. With respect to the period designated in paragraph 1.2 of the Master
Services Agreement as "Year 3," Dell and Lante agree that such period shall be
extended to five consecutive calendar quarters beginning on January 1, 2002 and
ending on March 31, 2003. Dell's guaranteed minimum revenue to Lante of
$7,000,000 during Year 3 is hereby deleted. Instead Dell agrees that it will
purchase from or, as set forth in paragraph 1.2, refer to Lante a minimum of
$1,000,000 of services in each of the above five calendar quarters on the terms
set forth below.
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4. During the calendar quarter commencing on January 1, 2002, and only for
such quarter, Dell commits that it will purchase from or refer to Lante at least
$600,000 worth of services, and in the event Dell does not achieve such $600,000
commitment, Dell shall promptly pay to Lante 50% of the amount of any shortfall
of the $600,000 commitment. In addition, if Dell purchases or refers less than
the $1,000,000 minimum as required hereunder during such quarter, then the
amount of the shortfall between the $600,000 and $1,000,000 commitments shall be
divided by four and Dell's minimum level of purchases or referrals in each of
the following four calendar quarters shall be increased by such amount. The
foregoing shall be Lante's sole and exclusive remedy for any failure to meet the
revenue commitments in the quarter commencing on January 1, 2002. By way of
example, should Dell purchase from or refer to Lante $800,000 worth of services
in the first calendar quarter, the $200,000 shortfall shall be divided by four
and spread over the remaining four calendar quarters so that Dell's minimum
revenue to Lante in each of the remaining four calendar quarters would be
$1,050,000. By way of an additional example, should Dell purchase from or refer
to Lante $100,000 worth of services, Dell shall pay $250,000 to Lante and an
additional $400,000 shall be divided by four and spread over the remaining four
calendar quarters so that Dell's minimum revenue to Lante in each of the
remaining four calendar quarters would be $1,100,000.
5. In the event that during any calendar quarter from April 1, 2002
through March 31, 2003, Dell does not achieve the committed minimum purchase of
$1,000,000 of services or referrals, then as Lante's sole and exclusive remedy
for Dell's failure to do so, Dell shall pay promptly to Lante an amount equal to
50% of the amount of such shortfall within ten (10) business days of Dell's
receipt of an invoice from Lante reflecting the amount due.
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6. In the event that in any of the five calendar quarters referenced above
Dell provides Lante with an amount of revenue in excess of the committed minimum
level, the amount of such excess shall be evenly divided among the remaining
calendar quarters as a reduction of Dell's committed minimum level of purchases
or referrals.
7. The minimum revenue commitments for Year 4 and Year 5 in paragraph 1.2
of the Master Services Agreement are hereby deleted.
8. Paragraph 1.3 of the Masters Services Agreement is hereby deleted.
9. Dell designates ▇▇▇▇▇ ▇▇▇▇▇▇, vice-president of Dell Ventures, as its
Executive Sponsor with respect to the Master Services Agreement. Dell may
designate a similar executive level individual to replace ▇▇▇▇▇ ▇▇▇▇▇▇ at Dell's
option, provided that Dell shall provide notice of any such change to Lante. The
parties agree that Lante shall have fulfilled its obligations pursuant to
paragraph 1.4 of the Master Services Agreement if Lante's then current Chief
Executive Officer or Chief Operating Officer serves as the Executive Sponsor for
Lante.
10. Dell and Lante agree that, upon completion of the stock transfer as
set forth in paragraph 1 hereof, Dell shall be deemed to have fully and
satisfactorily performed all of its obligations under the Master Services
Agreement as to Year 1 and Year 2. Each party hereby releases, waives, and
forever discharges the other from any and all claims, demands, losses, and
causes which the other may have or may assert, whether known or unknown, that
are connected in any way to the other party's performance of its obligations
under the Master Services Agreement as to Year 1 and Year 2. Nothing in this
Amendment One is intended to, nor shall it, operate to release either party from
any other obligations under the Master Service Agreement, as amended herein.
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11. Except as amended or modified by the terms of this Amendment One, all
terms of the Master Services Agreement remain in full force and effect. In the
event of a conflict between the terms of this Amendment One and the Master
Services Agreement, the terms of this Amendment One shall control.
12. By executing this Amendment One on the space provided below, Dell and
Lante each acknowledge that this Amendment One complies with the terms of
paragraph 11.9 of the Master Services Agreement and that the officers who have
signed this Amendment One have been authorized to execute this Amendment One,
the attachments hereto and any further documents reasonably requested by the
other party for the purpose of carrying out the intent of this Amendment One and
the Master Services Agreement.
13. Dell has all requisite authority to enter into this Amendment and to
perform all the obligations required to be performed hereunder. The execution,
delivery and performance of this Amendment One have been duly authorized by all
necessary partnership action, of Dell, and this Amendment constitutes a valid
and binding obligation of Dell, enforceable in accordance with its terms.
Further, the execution, delivery and performance of this Amendment One by Dell
and the performance of its obligations hereunder will not violate the terms of
any contract, agreement, law (including applicable state and federal securities
laws), regulation, order, injunction, judgment, decree or writ to which Dell is
subject and does not require the consent or approval of any other person or
entity.
14. Lante has all requisite authority to enter into this Amendment One and
to perform all the obligations required to be performed hereunder. The
execution, delivery and performance of this Amendment One have been duly
authorized by all necessary corporate action, of Lante, and this Amendment One
constitutes a valid and binding obligation of Lante, enforceable in
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accordance with its terms. Further, the execution, delivery and performance of
this Amendment One by Lante, and the performance of its obligations hereunder
will not violate the terms of any contract, agreement, law (including applicable
state and federal securities laws), regulation, order, injunction, judgment,
decree or writ to which Lante is subject and does not require the consent or
approval of any other person or entity.
15. This Amendment One may be executed in one or more counterparts, each
of which shall be deemed an original but all of which together will constitute
one and the same instrument.
DELL PRODUCTS L.P. LANTE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Its: V.P. - Legal, Litigation Its: Chief Financial Officer
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Date: December 27, 2001 Date: December 27, 2001
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