EXHIBIT 10.15
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
PROTEGE SOFTWARE (HOLDINGS) CONFIDENTIAL
PROFESSIONAL SERVICES AGREEMENT
This PROFESSIONAL SERVICES AGREEMENT (the "Agreement") is made this
15/th/ day of November 1997 between PROTEGE SOFTWARE (HOLDINGS) LIMITED of
Richmond House, Xx. Xxxx'x Xxxxx, Xx. Xxxxx Xxxx, Xxxxxxxx, XX0 0XX Channel
Islands (the "Contractor") and Vignette Corporation of One Far West Plaza, 0000
Xxx Xxxx Xxxx., Xxxxx 000, Xxxxxx, Xxxxx (the "Company") who agree as follows:
1. TERM
The initial term of this Agreement shall begin at the date of signing
by the later of the two parties to sign (the "Effective Date"), and shall end on
the termination of the Agreement by either party in accordance with Paragraph 6.
2. PROFESSIONAL SERVICES
(a) The Contractor agrees to act and perform the Professional
Services in the Territory (as defined in Schedule C) specified in the Work
Assignment Schedule contained in Schedule A, as modified from time to time by
mutual agreement (the "Professional Services").
(b) The Contractor shall perform the Professional Services for
Company, and shall in all cases act in a professional manner and such services
shall conform to the standards, specifications and other reasonable requirements
agreed between the parties.
(c) The Contractor agrees to submit monthly progress reports to the
Company.
(d) The Contractor shall report to Xxxx Xxxxxx or, in his/her
absence, Xxxx Xxxxx.
(e) The Contractor shall be entitled to attend executive meetings of
the Company.
3. CONTRACTOR'S REWARD
The Company shall reward the Contractor for its activities as
contained in Schedule B.
4. PROPRIETARY INFORMATION
(a) Each party acknowledges that it may be furnished or may otherwise
receive or have access to confidential or proprietary information which relates
to the other party's business, including (without limitation), past, present or
future business plans, marketing
plans, products, software, research, development, inventions, processes,
techniques, design or other technical information and data, etc. (the
"Proprietary Information"). Each party further acknowledges that all
intellectual property rights residing in the other party's Proprietary
Information are and will remain the exclusive property of the other party or its
licensors.
(b) Each party agrees to take the same measures it uses to protect
its own information of a similar nature to preserve and protect the
confidentiality of the Proprietary Information and all forms thereof, whether
disclosed to it before this Agreement is signed or afterwards. In addition, it
shall not disclose or disseminate the Proprietary Information to any third party
and shall not use the Proprietary Information for its own benefit (other than in
furtherance of the goals of the other party) or as permitted herein or for the
benefit of any third party (other than in furtherance of the goals of the other
party or as permitted herein).
(c) The foregoing obligations shall not apply to any information
which the recipient can prove (i) is previously publicly known at the time of
receipt from the other party or which subsequently becomes publicly known
through no act or fault of the recipient; (ii) is given to it by a third party
who is not obligated to maintain confidentiality; or (iii) was already known by
it at the time of receipt; or (iv) was independently developed by it without
resort to the Proprietary Information or other resources of the other and not in
the course of performance of the Professional Services, and not for the other
party (unless the parties have otherwise agreed that the specific information
was to be governed by this Agreement).
(d) Within three days after the termination of this Agreement (or any
other time at the other party's request), each party shall return to the other
all copies of Proprietary Information in tangible form in its possession or
control. The Contractor hereby assigns to the Company all its intellectual and
other property rights in its work product performed pursuant to this Agreement,
and waives its moral rights to or in same, and shall require each of its
employees (if any are so permitted by the Company pursuant to Schedule A)
working on this project to sign the Company's standard independent contractor
confidentiality agreement, and assignment of intellectual property rights and
waiver of moral rights.
(e) The provisions of this Section 4 of this Agreement shall survive
the expiry or termination of the Agreement.
5. WARRANTIES AND COVENANTS
A. The Contractor warrants and covenants that:
(i) it is able to perform the Professional Services, as set out
in the agreed business plan or in any agreed-upon business plan;
(ii) that any service it provides and information or materials
it develops for or discloses to the Company shall not in any way be based upon
any confidential or proprietary information derived from any source other than
the Company, unless the Contractor is specifically authorized in writing by such
source to use such proprietary information and the Contractor agrees it shall
not knowingly furnish or use any such information in the performance
2
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
of this Agreement, without the prior written consent of the Company provided
that the Company agrees the Contractor can use commercially available software
development tools;
(iii) in performance of its obligations hereunder it shall not
infringe any intellectual property right, or trade secret of any third party;
and
(iv) it shall perform all work in a professional manner.
(v) if the Company incurs any liability or expense as a result
of any warranty the Contractor makes in this Agreement not being true, the
Contractor shall indemnify the Company and hold it harmless against all such
liability or expense, including reasonable attorney/solicitor fees, provided
that the Company notifies the Contractor of the claim and co-operates with the
Contractor in defending against the claim. Each party shall notify the other if
it ever becomes aware of any such claim.
B. The Company warrants and covenants that:
(i) it is entitled to appoint the Contractor to perform the
Professional Services in the Territory;
(ii) that any information or materials it discloses to the
Contractor shall not in any way be based upon any confidential or proprietary
information derived from any source other than the contractor or the company
unless the Company is specifically authorised in writing by such source to use
such proprietary information;
(iii) in performance of its obligations and the provision of
information to the Contractor hereunder it will not infringe any intellectual
property right, or trade secret of any third party;
(iv) if the Contractor incurs any liability or expense as a
result of any warranty the Company makes in this Agreement not being true, the
Company shall indemnify the Contractor and hold it harmless against all such
liability or expense, including reasonable attorney/solicitor fees, provided
that the Contractor notifies the Company of the claim and co-operates with the
Company in defending against the claim. Each party shall notify the other if it
ever becomes aware of any such claim; and
(v) it will sell its products and services in the Territory
only through Vignette Europe Ltd. *****
C. The Company undertakes with the Contractor that:
(i) it shall provide prompt and clear instructions to the Contractor
in response to requests for information or instruction from the Contractor in
relation to the Professional Services;
3
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
(ii) it recognizes that the Contractor and its employees do not
assume any liability in respect of the debt or liabilities of the Company or any
of its subsidiaries;
(iii) it shall procure that Vignette Europe Ltd meets in full
all its debts as they fall due and the Company acknowledges that any failure to
do so will adversely affect the goodwill of the Contractor;
(iv) it shall procure that Vignette Europe Ltd will grant the
Contractor a first floating charge over the book debts of Vignette Europe Ltd as
security for any sums owing to the Contractor;
(v) The Company undertakes that a minimum of ***** will be
retained in the UK bank account of Vignette Europe Ltd and ***** will be
transferred to the UK bank account of Vignette Europe Ltd immediately after
formation of such entity and upon execution of this agreement.
6. TERMINATION AND RENEWAL
(a) The Initial Term of this agreement shall be for a ***** period
from the Effective Date (the "Initial Term").
(b) This Agreement shall automatically continue, following the expiry
of the Initial Term, for subsequent periods of ***** ("Renewal Terms") each
unless terminated in accordance with the terms set out below.
(c) This Agreement may be terminated by either party, as follows:
(i) without cause, after the Initial Term, on at least
***** written notice;
(ii) during the Initial Term, or any Renewal Term, if the other
party has not performed any material covenant when performance was due or has
otherwise breached any material term of this Agreement, the following procedures
shall apply:
(A) the non-defaulting party shall provide written notice
of the event or circumstances representing such breach or non-performance
together with a demand that such breach or non-performance be cured immediately;
(B) if the breach or non-performance has not been cured
(or other arrangements satisfactory to the non-defaulting party have not been
agreed to) within 30 days from the date of the notice delivered under clause (A)
above, immediately upon delivery of a second written notice terminating this
Agreement.
(d) At six months intervals from the Effective Date, the Company may
terminate this Agreement on ***** written notice if *****
4
7. MISCELLANEOUS
(a) The laws of the State of California shall govern this Agreement
and the parties hereby submit to the exclusive jurisdiction of the California
Courts.
(b) This Agreement, including Schedule A attached hereto, is the
entire agreement between the parties. Any change in the Agreement must be made
in writing and signed by both the Company and the Contractor.
(c) If either party cannot perform any of its respective obligations
due to causes beyond its reasonable control which shall not include the reward
to the Contractor under Schedule A, then the non-performing party shall (i)
notify the other party, (ii) take reasonable steps to resume performance as soon
as possible, and (iii) not be considered in breach during the period performance
is beyond the party's reasonable control.
(d) If any provision of this Agreement shall be deemed by a court to
be too broad, the court is hereby authorized to limit any scope, duration or
area of applicability, or all of them, so such provision is no longer overly
broad and to enforce the same as so limited. Subject to the prior sentence, if
any part of this Agreement is held unenforceable for any reason, such
unenforceability shall void only such part and shall not render unenforceable
any other part of this Agreement.
(e) Waiver by either party of a default by the other does not
constitute a waiver of future or other defaults.
(f) The parties shall not, for 12 months after the Agreement ends,
directly solicit for employment or any other engagement for work, any employee
or any employee of any affiliate of the other party. In this Agreement,
affiliate means a company under the ultimate common control of the other party
of which the party has been notified.
(g) Any notice or other communication required or permitted to be
given by this Agreement (including the signing of this Agreement) shall be in
writing and shall be effectively given if delivered personally, by facsimile
confirmed received, or by registered mail to the party at the relevant party's
address below.
Dated at this 15/th/ day of November 1997.
--------------------
/s/ Xxxx X. Xxxxxx
------------------------------------
duly authorised for and on behalf of
Vignette Corporation of One Far West Plaza,
0000 Xxx Xxxx Xxxx., Xxxxx 000,
Xxxxxx, Xxxxx
Dated at [ILLEGIBLE] this 17th day of November, 1997.
------------------
5
[SIGNATURE ILLEGIBLE]
-------------------------------------
duly authorised for and on behalf of
PROTEGE SOFTWARE (HOLDINGS) LIMITED
of Richmond House, Xx. Xxxx'x Xxxxx, Xx. Xxxxx Xxxx,
Xxxxxxxx, XX0 0XX, Channel Islands
6
SCHEDULE A
WORK ASSIGNMENT SCHEDULE
Territory
For purposes of this Agreement, Territory means Europe (including the
United Kingdom where the activities will be the responsibility of Protege
Software Limited), Africa, subject to then prevailing export regulations in
Canada and the United States.
Europe means those countries set out in Schedule C.
Analysis and Recommendations re:
. Marketing positioning;
. Presentation;
. Technical Support;
. Competitiveness;
. Localization
Implementation and approved Recommendations re:
. Sales,
. Marketing,
. Technical Support,
. Production,
. Finance and Administration.
all for operations, in the Territory, as more particularly set out in the annual
business plans (including budgets) of the Company as said plans and budgets
relate to its operations implemented directly or through:
-- Vignette Europe Ltd; and/or
-- such other corporations or entities, or in furtherance of
distribution, marketing or agency relationships with such third
parties, as the Company and the Contractor agree to establish in
the Territory.
The business plan and budgets shall be mutually agreed upon by
Contractor and Company.
This implementation will include, but not necessarily be limited to,
the following:
SCOPE OF ACTIVITIES
During the term, Contractor shall perform the following activities in
the Territory:
. Establishment of an organisation for the Territory, to complement
the current resources, technology and economic considerations of
the Company, and the circumstances that prevail in the Territory;
. Liaison with Vignette Europe Ltd, a wholly owned subsidiary of the
Company, so that Company may professionally provide the following:
(a) solicitation of sales orders;
(b) provision of support for Company's distributors and dealers in
the Territory;
(c) co-ordination of product and warranty service between Vignette
Europe Ltd and such other affiliated or third party, arms length corporations or
entities, and licensees and distributors/VARs etc. of the Company's products,
located in the Territory;
(d) provision of product technical support services;
(e) the conducting of periodic training courses and seminars
regarding applications and operations of the products in major marketing centers
located in the Territory for the benefit of distributors and dealers, etc.;
(f) development of business plans for the Territory;
(g) management and coordination of the implementation of the
Company's marketing strategy in the Territory (for the products of Company
handled by Contractor);
(h) localisation of products;
(i) administration of the "Market Development Fund" specified in the
budget approved by the Contractor related to customers in the Territory.
SOLICITATION OF CONTRACTS
(a) Vignette Europe Ltd shall solicit orders for products only at
such current prices as may be periodically established in writing by the Company
and notified to the Contractor.
(b) All orders solicited by Vignette Europe Ltd from customers in the
Territory are subject to acceptance or rejection by an officer or other
authorized person at the
principal office of the Company, which approval or rejection shall in all cases
be in writing, and no order shall be binding upon Vignette Europe Ltd until so
accepted. The Company and Vignette Europe Ltd reserve the right to refuse any
order originating in the Territory, either for lack of credit of the customer or
for any other reason which, in the judgment of the Company or Vignette Europe
Ltd is reasonable grounds for refusal.
(c) The Contractor agrees to dispatch all inquiries received by it,
applicable to the Company or the products of the Company, from points or sources
outside the Territory promptly to the Company for attention and handling.
(d) Neither Vignette Europe Ltd nor the Company is under any
obligation to the Contractor to continue its business or to manufacture, sell or
supply, or to continue to manufacture, sell or supply any of the products nor
shall any warranty of any nature as to any products run from Vignette Europe
Ltd, the Company, or their affiliates to the Contractor, and neither the Company
nor its affiliates are under any obligations to the Contractor to continue,
discontinue, or change any model or type of any of the products.
(e) All invoices in connection with sales to customers in the
Territory shall be rendered by Vignette Europe Ltd to such customers. It is
expressly understood that full power by and such authority for all collections
rest with Vignette Europe Ltd and the Company, which exercises complete control
over the approval of all customers' credit, orders, and contracts. The
Contractor agrees to protect Vignette Europe Ltd and the Company, as far as is
reasonable by reporting adverse credit information of which it is aware with
respect to customers in the Territory.
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
SCHEDULE B
CONTRACTOR REWARD SCHEDULE
1. General
A. In this Agreement, the currency is UK pounds sterling.
B. *****
C. *****
2. Reimbursement
The Company will reimburse the Contractor within ***** days after the
end of each fiscal month an amount equal to one hundred per cent (100%) of all
costs approved within the agreed business plan or otherwise agreed to by the
Company, and reasonably incurred by the Contractor in fulfillment of the
Contractor's obligations under this Agreement. The Contractor will keep records
of (and receipts for) all costs in incurs in its performance of the services and
will provide copies of such records to the Company upon reasonable request.
3. Annual Bonus
A. The Contractor shall also be paid an annual cash reward which may
be converted up to ***** of its value at the option of the Contractor (in part
or in whole) into fully paid voting stock of the Company or its successor as
agreed by the Contractor, calculated on the basis set out below provided that
the maximum conversion by the Contractor does not exceed 5% of the voting stock
of the Company then in issue.
B. The reward shall be:
*****
S-B-1
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
*****
The Contractor shall be entitled to convert up to ***** of this reward
into fully paid voting stock of the Company or its successor at a strike price
of ***** per share.
In the event of termination, other than for the termination criteria
as specified in paragraph 6 (d) of this agreement, during the initial term the
reward shall be deemed to be:
*****
4. If the Company enters into any form of public offering then the
Contractor shall be entitled to require conversion of its accrued reward prior
to the sale taking place.
S-B-2
SCHEDULE C
EUROPE MEANS
Such of the countries listed below, except to the extent that sales of
the Company's products are prohibited pursuant to the laws of [the United
States] or other jurisdiction applicable to the Company's operations.
Albania Liecthenstein
Andorra Lithuania
Armenia Luxembourg
Austria Macedonia
Azerbaijan Malta & Gozo
Belarus Moldova
Belgium Monaco
Bosnia The Netherlands
Bulgaria Norway
Byclorussia Poland
Croatia Portugal
Cyprus Romania
Czech Republic Russia Federation
Denmark San Marino
Estonia Serbia
Federal Republic of Slovak Republic
Yugoslavia
Finland Slovenia
France Spain
Germany Sweden
Gibraltar Switzerland
Greece Tajikistan
Hungary Turkey
Iceland Turkmenistan
Republic of Ireland Ukraine
Italy United Kingdom
Xxxxxxxxxx Xxxxxxxxxx
Xxxxxxxxxx Xxxxxxx Xxxx Xxxxx
Xxxxxx
PROTEGE SOFTWARE HOLDINGS
PROFESSIONAL SERVICES AGREEMENT - AMENDMENT
This AMENDMENT to the PROFESSIONAL SERVICES AGREEMENT (the
"Amendment") is made this 31st day of March 1998, between Protege Software
Holdings Limited of Richmond House, Xx. Xxxx'x Xxxxx, Xx. Xxxxx Xxxx, Xxxxxxxx,
XX0 0XX (the "Contractor") and Vignette Corporation of One Far West Plaza, 0000
Xxx Xxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx (the "Company"), who hereby agree as
follows:
1. The parties entered into a Professional Services Agreement (the
"Agreement") made as at the 17th day of November 1997.
2. In terms of clause 6(a) of the Agreement the initial term shall be for
a ***** period from the Effective date, being the 17th day of November 1997.
3. The parties by this document agree to amend the Agreement so that the
initial terms shall be for ***** months and will expire on the 31st day of
December 1998, to coincide with the year end of the Company.
4. All the other terms and conditions are to remain unchanged, and in
full force.
Dated at Austin, Texas this 31st day of March 1998.
/s/ Xxxx Xxxxx
-------------------------------------
Duly authorised for and on behalf of
Vignette Corporation of Xxx Xxx Xxxx Xxxxx,
0000 Xxx Xxxx Xxxx, Xxxxx 000.
Austin, Texas
Dated at this 11th day of September 1998.
--------------------- ----- ------------
[SIGNATURE ILLEGIBLE]
-------------------------------------
Duly authorised for and on behalf of
Protege Software (Holdings) Limited of
Richmond House, Xx. Xxxx'x Xxxxx, Xx. Xxxxx Xxxx,
Xxxxxxxx, XX0 0XX
A-1
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
PROTEGE SOFTWARE CONFIDENTIAL
PROFESSIONAL SERVICES AGREEMENT FOR UNITED KINGDOM
This PROFESSIONAL SERVICE AGREEMENT (the "Agreement") is made this
[15] day of [November] 1997 between PROTEGE SOFTWARE LIMITED of Kinetic Centre,
Xxxxxxxx Street, Borehamwood, Herts. XX0 0XX (the "Contractor") and Vignette
Corporation of One Far West Plaza, 0000 Xxx Xxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx
(the "Company") who agree as follows:
1. PROFESSIONAL SERVICES IN THE UK
(a) The Contractor and the Company have agreed that the Company shall
act as General Manager for the Company in the United Kingdom including:
(i) setting up a wholly owned subsidiary company of the Company
(subject to local approval) to be called Vignette Europe Ltd.
(ii) setting up such other corporations or entities, or
distribution, marketing or agency relationships with third parties as the
Company and Contractor agree to establish in the United Kingdom.
(b) The Contractor shall perform the Professional Services for
Company, and shall in all cases act in a professional manner and such services
shall conform to the standards, specifications and other reasonable requirements
agreed between the parties.
2. MANAGEMENT FEE
The Contractor shall be paid an annual Management Fee of ***** per
annum excluding the reimbursable expenses detailed below. The Management Fee
shall be payable *****.
3. REIMBURSEMENT OF EXPENSES
The Company will reimburse the Contractor within ***** days after the
end of each fiscal month an amount equal to one hundred per cent (100%) of all
costs approved within the agreed business plan or otherwise agreed to by the
Company, and reasonable incurred by the Contractor in fulfillment of the
Contractor's obligations under this Agreement. The Contractor will keep records
of (and receipts for) all costs it incurs in its performance of the services and
will provide copies of such records to the Company upon reasonably request.
4. TERMINATION
(a) The Initial Term shall be for a ***** period from the
Effective Date (the "Initial Term").
UK-1
(b) This Agreement shall automatically continue, following the expiry
of the Initial Term, for subsequent periods of ***** ("Renewal Terms") each
unless terminated in accordance with the terms set out below.
(c) This Agreement may be terminated by either party as follows:
(i) without cause, after the Initial Term, on at least *****
written notice, provided that if the Company fails to renew any Renewal Term, it
shall provide at least ***** notice of payment in lieu thereof;
(ii) during the Initial Term, or any Renewal Term, if the other
party has not performed any material covenant when performance was due or has
otherwise breached any material term of this Agreement, the following procedures
shall apply:
(A) the non-defaulting party shall provide written notice
of the event or circumstances representing such breach or non-performance
together with a demand that such breach or non-performance be cured immediately.
(B) If the breach or non-performance has not been cured
(or other arrangements satisfactory to the non-defaulting party have not been
agreed to) within ***** from the date of the notice delivered under clause (A)
above, immediately upon delivery of a second written notice terminating this
Agreement.
(d) At six months intervals from the Effective Date, the Company may
terminate this agreement on ***** written notice if *****
5. MISCELLANEOUS
(a) The laws of the State of California shall govern this Agreement
and the parties hereby submit to the exclusive jurisdiction of the California
Courts.
(b) Any change in this Agreement must be made in writing and signed
by both the Company and the Contractor.
(c) The parties shall not, for 12 months after the Agreement ends,
directly solicit for employment or any other engagement for work, any employee
or any employee of any affiliate of the other party. In this Agreement,
affiliate means a company under the ultimate common control of the other party
of which the party has been notified.
(d) Any notice or other communication required or permitted to be
given by this Agreement (including the signing of this Agreement) shall be in
writing and shall be effectively given if delivered personally, by facsimile
confirmed received, or by registered mail to the party at the relevant party's
address below.
UK-2
Dated at London this 15 day of November 1997
/s/ Xxxx X. Xxxxxx
-------------------------------------
duly authorised for and on behalf of
Vignette Corporation of One Far West Plaza,
0000 Xxx Xxxx Xxxx, Xxxxx 000,
Xxxxxx, Xxxxx
Dated at London this 15th day of November 1997
[SIGNATURE ILLEGIBLE]
-------------------------------------
duly authorised for and on behalf of
PROTEGE SOFTWARE LIMITED
