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EXHIBIT 99.01
REPRESENTATIVE AGREEMENT AND LICENSE
THIS REPRESENTATIVE AGREEMENT AND LICENSE (the "Agreement") is entered
into and made effective as of September 1, 1998, (the "Effective Date") between
SystemSoft Corporation, a Delaware corporation with its principal place of
business at Xxx Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("SystemSoft") and
Insyde Software, Inc., a Delaware corporation with its principal place of
business at Xxx Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter
called the "Representative").
WHEREAS, SystemSoft is engaged in the development and marketing of
computer software and related services that it wishes to market to personal
computer manufacturers ("OEMs"), independent software vendors ("ISVs"),
independent hardware vendors ("IHVs"), and corporate accounts ("Corporate
Accounts"); and
WHEREAS, pursuant to the Asset Purchase and License Agreement (the
"Asset Purchase and License Agreement") being entered into contemporaneously
with this Agreement the Representative is acquiring the BIOS Business of
SystemSoft (as defined in the Asset Purchase and License Agreement); and
WHEREAS, the Representative will, as of the Effective Date, be engaged
in marketing computer software and related services to OEMs and wishes to
represent SystemSoft in a defined area of the world as provided for in this
Agreement;
NOW, THEREFORE, SystemSoft and the Representative agree as follows:
1. DEFINITIONS. In this Agreement:
(a) "Confidential Information" shall mean (i) all
information obtained by the Representative on or after the Effective Date
relating to the business of SystemSoft that is not generally available to the
public and includes, but is not limited to, confidential sales forecasts, sales
prospects information, marketing strategies and product information of
SystemSoft and actual and prospective customers of SystemSoft and (ii)
documents, models and other tangible items containing or relating to such
information.
(b) "Representative Licensed Products" shall mean
SystemSoft's Products set out in Exhibit B.
(c) "Person" shall mean any governmental authority,
individual, corporation, limited liability company, partnership, trust or other
entity.
(d) "Products" shall mean Representative Licensed
Products, Representative Products and Purchased Products.
(e) "Representative Products" shall mean any product,
good or service manufactured or provided by the Representative including, but
not limited to Purchased
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Products.
(f) "Purchased Products" shall mean the products set out
in Exhibit A.
(g) "Sales Territory" shall mean all of Europe, Asia and
the Pacific, excluding Japan and as may be further limited in Exhibit B of this
Agreement.
(h) "PC Card Products" shall mean the following products:
CardSoft DOS, CardWizard 3.1, CardWorks 95 and 98, CardWizard NT, and
PowerProfiler NT.
(i) "BIOS Product" shall mean a Representative Product
including a system BIOS.
2. APPOINTMENT OF REPRESENTATIVE.
SystemSoft hereby appoints the Representative as its sales
representative in various sales territories. The exclusive or non-exclusive
status of the Representative, the non-exclusive or exclusive status of each
Representative Licensed Product in each geographical territory of the world is
described in Exhibit B. Representative shall devote its diligent efforts to
market, promote, and license the Representative Licensed Products.
Representative hereby accepts such appointment and agrees to act as the
representative of SystemSoft in accordance with the terms of this Agreement. At
any time that the Representative has not made the payments required under
Section 4(c)(ii) of the Asset Purchase and License Agreement, the exclusive
status of Representative for the products specified in Exhibit B shall become
nonexclusive.
3. GRANT OF LICENSE.
(a) SystemSoft hereby grants to Representative a
non-transferable license to use the Representative Licensed Products, including
the limited right to modify the source code and distribute such modified code to
customers of SystemSoft, for the sole purpose of providing customization,
maintenance, support and services to SystemSoft's customers as specified in this
Agreement. All modified source code and derivatives thereof shall still be
deemed the sole property of SystemSoft and shall be provided to SystemSoft
within 5 days of their release to a customer.
(b) This Agreement is made expressly subject to the Exclusive
Representative Agreement currently in effect between SystemSoft and Pacific
SystemSoft KK for the territory of Japan.
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4. DUTIES OF THE REPRESENTATIVE.
(a) The Representative will solicit orders for the
pertinent Representative Licensed Products from OEMs, ISVs, and IHVs in the
Sales Territory, with the sole exception being that Representative shall be
authorized to solicit orders for SystemWizard and Aspen in the Sales Territory
only from OEMs. Representative shall license the Representative Licensed
Products in accordance with the license fees set forth in the SystemSoft's OEM
Price List then currently in effect. Representative is authorized to vary the
license fees a maximum of 20% from the SystemSoft OEM Price List then currently
in effect. Any variance of greater than 20% requires the advance written
authorization of SystemSoft, except that Representative also may vary the
license fee for a particular product to a particular customer by 10% from the
most recent price in effect for that product to that customer.
(b) In the case of the transactions specified in Section
5(a)(ii), and for all PC Card and MobileAssist products, Representative shall
act as the agent of SystemSoft and license the Representative Licensed Products.
In the case of PC Card Products licensed outside the Sales Territory, the
Representative shall not quote a price for a PC Card Product to any Person who
was an existing licensee of such product as of the Effective Date without the
prior approval of such price by SystemSoft. The preceding sentence shall not
apply following the sale of or the granting of a right to license with respect
to such PC Card Product to Phoenix Technologies Ltd., or American Megatrends,
Inc., or any subsidiary of either, by SystemSoft, or following any "Change of
Control" of SystemSoft. For purposes of Sections 4(b) and 4(c), a "Change of
Control" means any time at which fifty percent (50%) or more of the voting stock
of SystemSoft is held, legally or beneficially, by either Phoenix Technologies
Ltd., or American Megatrends, Inc., or any subsidiary of either.
(c) If at any time while this Agreement is in effect,
Phoenix Technologies Ltd., or American Megatrends, Inc., or any subsidiary of
either, shall come to have the right to license MobileAssist products in Asia
and the Pacific, or in the event of a Change of Control of SystemSoft,
SystemSoft shall immediately pay to the Representative in cash an amount equal
to twenty-five percent (25%) of the maximum remaining Earn-Out Amount to which
SystemSoft could be entitled under the Asset Purchase and License Agreement. If
at any time while this Agreement is in effect, Phoenix Technologies Ltd., or
American Megatrends, Inc., or any subsidiary of either, shall come to have the
right to license any PC Card Product, or in the event of a Change of Control of
SystemSoft, or if SystemSoft no longer supports one or more of the PC Card
Products, or if SystemSoft assigns this Agreement to Phoenix Technologies Ltd.,
or American Megatrends, Inc., or any subsidiary of either, the Representative
shall thereupon have an irrevocable license to continue sublicensing PC Card
Products until the license fees paid or payable to SystemSoft (or its assignee)
under Section 5(a) with respect to PC Card Products are equal, on a cumulative
basis, to $250,000, following which time this sentence shall no longer apply.
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(d) The Representative will diligently and in a
professional manner promote the licensing of, and attempt to stimulate interest
in, the Representative Licensed Products in the Sales Territory.
(e) The Representative will collect all payments due with
respect to the transactions described in Section 5(a)(ii).
5. COMMISSIONS.
(a) (i) For services performed under this Agreement,
the Representative shall be compensated according to the schedule set out in
Exhibit B and this subsection (a).
(ii) In the case of a license transaction that
includes a PC Card and/or MobileAssist product and a Representative Product, the
Representative shall price PC Card and MobileAssist separately from the
Representative Product and pay to SystemSoft for license transactions within the
Territory the amount set out in Exhibit B and for license transactions outside
of the Territory sixty percent (60%) of all payments collected by the
Representative for PC Card and/or MobileAssist, and shall be entitled to retain
the remaining forty percent (40%) as a commission, except that for sale or
license transactions involving embedded products combining CardSoft and a
Representative Product, a single combined price may apply, in which case
sixty-seven percent (67%) of the sale price or license fee for the transaction
shall be allocated to the Representative Product and thirty-three percent (33%)
shall be allocated to CardSoft.
(b) Amounts due to either party under this Section 5
shall be paid quarterly, within thirty (30) days following the end of each
calendar quarter (net of any withholding required by law), by wire transfer to a
bank designated in writing by the receiving party. All payments shall be made in
US dollars.
(c) The Representative hereby guarantees that the
aggregate amount payable by the Representative to SystemSoft under Section
5(a)(ii) by January 31, 1999 will be at least $125,000, of which $62,500 shall
be paid by the Representative at the Closing of the Asset Purchase and License
Agreement as specified in Section 4(b) thereof. In the event that the additional
amount payable by January 31, 1999 is less than $62,500, the Representative will
pay that shortfall amount to SystemSoft by January 31, 1999. All amounts paid
under this subsection (c) shall be credited against the payments next due from
the Representative to SystemSoft under this Agreement.
6. BUSINESS PLANNING AND REPORTING. Each month, Representative
shall provide SystemSoft with a sales forecast for the coming month in a
mutually agreeable format. At least once each calendar quarter, SystemSoft and
Representative will meet to discuss product development, marketing plans, joint
programs and customer service and support issues to facilitate the successful
implementation of this Agreement.
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7. NO AGENCY RELATIONSHIP.
(a) Except as provided in subsection (b) of this Section
7, nothing contained in this Agreement shall be deemed to constitute the
Representative as the agent of SystemSoft for any purpose, and the
Representative will not have, and will not hold itself out as having, authority
to create or incur any obligation or responsibility in the name or on behalf of
SystemSoft. The Representative acknowledges that it is, and shall remain, an
independent contractor and that SystemSoft and the Representative are not joint
venturers or partners.
(b) SystemSoft hereby designates Representative as its
agent, exclusively for purposes of licensing Representative Licensed Products on
behalf of SystemSoft, in the Sales Territory in the transactions described in
Section 5(a), and outside of the Sales Territory, on a nonexclusive basis, in
other license transactions that include both a PC Card product and a BIOS
product. Representative shall license the Representative Licensed Products,
except for SystemWizard and Aspen, using a form master license agreement
preapproved in advance by SystemSoft. Such agreement shall contain a provision
making SystemSoft a third party beneficiary for the purpose of enforcing all of
its rights in the Representative Licensed Products, including but not limited to
its right to collect payment of license fees. Representative hereby stipulates
that it will cooperate fully with SystemSoft in the enforcement of its right in
any agreement with any licensee of Representative Licensed Products.
8. EXPENSES OF REPRESENTATIVE. All expenses and disbursements
incurred by the Representative in carrying out this Agreement will be borne
wholly and completely by the Representative. The Representative will have the
right to appoint, and will solely be responsible for, its own sales persons,
employees, agents, and representatives, who will be at the Representative's own
risk, expense, and supervision, and who will not have any claim against
SystemSoft for compensation or reimbursement. Expenses incurred by the
Representative on behalf of SystemSoft such as translations, seminars, brochure
production and press releases which the Representative desires to be reimbursed
by SystemSoft shall be approved in advance by SystemSoft.
9. OBLIGATIONS OF THE PARTIES. SystemSoft will:
(a) Designate one employee as the primary contact with
the Representative for all business issues and designate one employee as the
primary contact with the Representative for all technical support.
(b) Provide written response to the Representative's
technical questions within two (2) business days.
(c) Provide the Representative with copies of
SystemSoft's current sales and marketing literature.
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(d) Provide personnel of the Representative with
semi-annual Product and SystemSoft policy training at SystemSoft's offices in
the United States. The Representative will pay its own expenses for travel to
and from, and accommodations for, training by SystemSoft.
(e) Provide the Representative with contact information
for all inquiries from prospective customers in the Sales Territory that contact
SystemSoft directly concerning the Products.
10. NONDISCLOSURE AND NONCOMPETITION.
(a) The Representative agrees that it will not disclose,
transfer or otherwise make available to any Person the Confidential Information
furnished to it by SystemSoft or any actual or prospective customer of
SystemSoft in connection with the performance of the Representative's duties
under this Agreement. The Representative will return to SystemSoft, promptly
after the expiration or termination of this Agreement, all written material,
including, without limitation, all Product source codes, furnished to the
Representative by SystemSoft in connection with the performance by the
Representative of its duties under this Agreement. The obligations of the
Representative under this Section 10 will survive the expiration or termination
with or without cause of this Agreement.
(b) While this Agreement is in effect, and except as
contemplated by this Agreement, Representative shall not, directly or
indirectly, for its own account or as an agent, employee, officer, director,
trustee, consultant or member, partner, shareholder or other equity holder of
any Person, engage in any business relating to any Representative Licensed
Products as to which Representative is SystemSoft's exclusive sales agent,
anywhere in the world.
11. TERM; TERMINATION.
(a) This Agreement will remain in effect for a term of
three (3) years ending August 31, 2001. Unless otherwise terminated pursuant to
subsection (c), this Agreement shall automatically renew each year thereafter
for an additional term of twelve (12) months.
(b) Either party shall, without prejudice to any other
remedies, have the right to terminate this Agreement for cause by notice in
writing to the other party at any time upon the occurrence of one or more of the
following events:
(i) Insolvency of the other party;
(ii) Filing of a voluntary or involuntary
petition by or against the other party in
bankruptcy or for reorganization or
arrangement;
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(iii) Appointment of a receiver or trustee for the
other party;
(iv) Execution by the other party of an
assignment for the benefit of creditors;
(v) Dissolution of the other party; or
(vi) The other party violates or fails to perform
any agreement, obligation, term or condition
of this Agreement and that violation or
failure to perform is not corrected within
thirty (30) days following receipt of
written notice thereof.
(c) Either party may terminate this Agreement at the
expiration of its current term by notifying the other party of its election to
terminate not later than ninety (90) days before such expiration date.
(d) Upon the termination of this Agreement, other than a
termination by SystemSoft for cause under Section 11(b), SystemSoft shall pay
thereafter to Representative the commissions specified in Section 5 with respect
to (i) all transactions for which contracts were executed prior to such
termination, and (ii) all transactions for which contracts are executed after
such termination, but in each case only to the extent that cash is received by
or for SystemSoft or any representative or agent or affiliate of SystemSoft on
account of such transactions within six (6) months following such termination.
12. GOVERNING LAW; JURISDICTION. This Agreement shall be governed
by and construed in accordance with the substantive laws of The Commonwealth of
Massachusetts, U.S.A. The parties both hereby expressly submit themselves to the
non-exclusive jurisdiction of the federal and state courts in The Commonwealth
of Massachusetts for the determination of any controversy arising under or in
connection with the Agreement and hereby waive personal service of any summons,
complaint or other process in any action in any such court and agree that all
service thereof may be made by certified mail, return receipt requested. In the
event that any provision of this Agreement is violated, the breached party will
be entitled to injunctive relief from further or continued violation of any such
provision, and an order to that effect may be made pending litigation as well as
upon the final determination thereof.
13. NOTICES. All notices and other communications required or
permitted to be given hereunder shall be given in writing and addressed to a
party at its address set forth herein above or to such other address as such
party may specify by written notice to the other party and shall be delivered in
person or sent by facsimile transmission or other electronic means of written
communication and confirmed in writing via an internationally recognized courier
service. Notices and communications which are sent by facsimile transmission or
other electronic means of written communication shall be deemed effective on the
day the
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communication is sent, provided that if the communication is not sent during the
business hours of the addressee the communication shall be deemed effective on
the business day of the addressee next following the day on which the
communication was sent.
14. COMPLETE AGREEMENT; WAIVERS AND AMENDMENTS. This Agreement
contains the full understanding of the parties with respect to the subject
matter hereof and supersedes all prior understandings relating thereto. No
waiver or modification of any of the provisions hereof will be binding unless
made in writing and signed by the parties by their respective officers thereunto
duly authorized.
15. ASSIGNABILITY. This Agreement, and the rights and liabilities
created by or arising under this Agreement, shall be assignable by the
Representative with the prior written consent of SystemSoft, except that the
Representative may assign this Agreement, and the rights and liabilities created
by or arising under this Agreement, to Insyde Software Corp. (the Taiwan
corporation that is the parent corporation of the Representative) without the
consent of SystemSoft. Upon such assignment and the assumption by the assignee
of the Representative's obligations and liabilities hereunder, all of the
rights, title, and interest of, and the liabilities and obligations of, the
Representative created by or arising under this Agreement shall thereupon cease
and be of no further force and effect whatsoever with respect to the
Representative, and shall vest instead in the Representative's assignee. This
Agreement, and the rights and obligations created by or arising under this
Agreement, may be assigned by SystemSoft.
16. LANGUAGE. This Agreement is written and executed in the
English language. If this Agreement is translated into any other language, in
the event of a difference in meaning between the English and non-English text,
the English text shall govern.
In witness whereof, the parties have executed this Agreement as of the
date first above written.
INSYDE SOFTWARE, INC.
By /s/ Xxxxxxxx Xxxxxx, President
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Title
SYSTEMSOFT CORPORATION
By /s/ Xxxxx X. Xxxx, CEO
--------------------------------------
Title
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EXHIBIT A
PURCHASED PRODUCTS
1. All BIOS software, source code and object code, including
(without limitation) the VGA BIOS; all system set up software,
source code, and object code, except for the Licensed
Products.
2. All power management and smart battery software, source code
and object code, except for the Licensed Products.
3. All ACPI software, firmware and development tools, source
code, and object code, including ACPI Builder.
4. All keyboard controller/embedded controller software, source
code, and object code.
5. Source code and object code versions of SystemProfiler (Win
SCU) and Smart Battery Software System.
6. Source code and object code versions of PowerProfiler Win 95.
7. All tools, utilities, documentation and sales materials
directly related to or used with all of the items above.
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EXHIBIT B
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TERRITORY PRODUCT COM % COM % EXCLUSIVE NON SOURCE
ASIA PAC EUROPE IN TERRITORY EXCLUSIVE IN CODE
A = ASIAPAC TERRITORY INCLUDED
E = EUROPE
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A and E CardSoft DOS 40 20 A E Yes
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A and E CardWizard 40 20 A E Yes
3.1
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A and E CardWorks 40 20 A E Yes
95 and 98
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A and E PowerProfiler 40 20 A E Yes
NT
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A and E CardWizard 40 20 A for 12 E Yes
NT Months A after 12
months
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A and E MobileAssist 40 40 A and E No
Products
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A and E SystemWizard 20 20 A and E No
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A and E Aspen 20 20 A and E No
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