EXHBIT 10.17
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MOAI TECHNOLOGIES, INC.
00 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
July 21, 1999
Reuters Holdings Switzerland SA
153 route de Thonon
1245 Collonge-Bellerive
Switzerland
In consideration of the purchase by Reuters Holdings Switzerland SA
(together with any affiliates with respect to which Reuters Holdings Switzerland
SA owns, directly or indirectly, 50% or more of the outstanding voting power and
which Reuters Holdings Switzerland SA may designate from time to time,
"Reuters") of 789,474 shares of Series C Convertible Preferred Stock of Moai
Technologies, Inc. (the "Company"), pursuant to a Stock Purchase Agreement dated
July 21, 1999, the Company and Reuters agree to the terms and obligations of
this letter agreement ("Agreement").
1. PRODUCT AND TECHNOLOGY RIGHTS
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1.1 Development Plans. Upon the request of Reuters given from time to
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time and at reasonable intervals, the Company shall provide Reuters with a
written summary of current and future development plans and product and
technology roadmaps of the Company and each of its subsidiaries in existence
from time to time ("Subsidiaries"); provided, however, that the Company shall be
obligated to provide such information only to the extent the Company provides
such information generally to licensees of its beta or full customer release
products.
1.2 Technology Call/MFN Pricing.
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The Company and each of its Subsidiaries shall provide Reuters with the
right and opportunity to license the Company's and each of its Subsidiary's beta
and full customer release products (including without limitation any new
versions or releases of such products) at the same time as the Company and its
Subsidiaries commence licensing such products to third parties; provided,
however, that the Company shall not be obligated to license any beta versions of
the Company's products to Reuters unless Reuters qualifies as a beta customer
using the Company's generally applicable criteria.
In providing Reuters with the opportunity to license such products, the
Company and its Subsidiaries shall offer and make available to Reuters terms in
respect thereof that are no less favorable as a whole to Reuters than those
previously extended by the Company and its Subsidiaries to any other person
similarly situated and using the product, for a business purpose, in a manner
and on a scale similar to the use contemplated by Reuters.
2. MOST FAVORED BIDDER.
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Each of the Company and Reuters agrees that in the event the Company or any
of its Subsidiaries seeks to obtain news or data feeds of the type currently
provided by Reuters to its customers which news or data feeds are intended for
use by the Company or any of its Subsidiaries internally or as part of a
commercial web site operated by the Company or any of its Subsidiaries, the
Company agrees to approach Reuters and negotiate in good faith an arrangement
under which the Company or any of its Subsidiaries would obtain such news or
data feeds from Reuters. The objective of these discussions will be to have the
Company and its Subsidiaries obtain such news and data feeds from Reuters to the
extent such news and data feeds satisfy the Company's requirements and can be
obtained on terms that are as competitive as other commercially available
sources.
3. STRATEGIC PARTNER.
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Except with respect to any partner or investor who, together with its
affiliates, is engaged primarily in the business of providing debt or equity
financing, the Company agrees that Reuters shall have a right of first offer
with respect to: (a) the issuance and sale for financing purposes to any person
(including any strategic or financial investor) other than the Company, and any
employees, officers, consultants or directors of any such subsidiary, of
securities of any subsidiary formed by the Company for the purpose of expanding
the Company's or any subsidiary's activities or operations into Europe or Asia,
or any part of either of the foregoing, and (b) the issuance and sale for
financing purposes to any person (including any strategic or financial investor)
other than the Company of any equity interest in any joint venture entity
(regardless of the form of such entity) formed by the Company for the purpose of
expanding the Company's or any subsidiary's activities or operations into Europe
or Asia (each an "Expansion Transaction"). The foregoing right of first offer
shall expire as to the issuance and sale of securities or equity interests by a
given subsidiary or joint venture entity if the Company and Reuters shall have
failed to reach agreement on mutually acceptable terms therefor within twenty
(20) days after the commencement of good faith negotiations thereof (which
negotiations shall commence within five days after the Company notifies Reuters
of the proposed Expansion Transaction), provided that the Company shall have
continued to negotiate in good faith with Reuters during the entirety of such
twenty (20) day period and provided further that each such twenty (20) day
period shall be reduced to five business days in the event the Company wishes to
explore the possibility of a similar arrangement with any third party in which
such third party has approached the Company and indicated its interest in
exploring such an arrangement (provided that such reduction in time shall not
apply if any such interest expressed by any third party was preceded by
solicitation by the Company of such interest).
4. TERMINATION.
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This Agreement shall terminate upon the earlier of (a) June 30, 2002, (b)
the closing of the sale, conveyance, or other disposition or encumbrance of all
or substantially all of the Company's assets or business or the merger into or
consolidation with any other entity (other than a wholly-owned subsidiary
corporation) or any other transaction or series of related transactions in which
at least fifty percent (50%) of the voting power of the Company is disposed
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of (other than a merger effected exclusively for the purpose of changing the
domicile of the Company), (c) the date on which Reuters no longer owns at least
two percent of the Company's outstanding shares of Common Stock calculated
assuming the conversion and exercise of all outstanding convertible and
exercisable securities (without regard to any vesting requirements), and (d)
with respect to Section 3 only, the effective date of the Company's registration
statement filed under the Securities Act of 1933, as amended, for the sale of
its securities to the public at a public offering price of not less than $11.40
per share and which results in gross aggregate cash proceeds to the Company of
at least $20,000,000.
5. CONFIDENTIALITY.
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Reuters agrees to comply and cause all of its affiliates to comply with the
following confidentiality obligations.
5.1. Definition of Confidential Information. "Confidential Information"
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means any oral, written, graphic or machine-readable information including, but
not limited to, that which relates to patents, patent applications, research,
product plans, products, developments, inventions, processes, designs, drawings,
engineering, formulae, markets, software (including source and object code),
hardware configuration, computer programs, algorithms, future development plans
and product and technology roadmaps, business plans, agreements with third
parties, services, customers, marketing or finances of the Company or any
Subsidiary, which Confidential Information is designated in writing to be
confidential or proprietary, or if given orally, is confirmed in writing as
having been disclosed as confidential or proprietary within a reasonable time
(not to exceed thirty (30) days) after the oral disclosure, or which information
would, under the circumstances, appear to a reasonable person to be confidential
or proprietary. Notwithstanding any failure to so identify it, all information
provided pursuant to Section 1 above shall be Confidential Information.
5.2. Nondisclosure of Confidential Information.
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(a) Reuters agrees not to use any Confidential Information disclosed
to it by the Company or any of the Company's Subsidiaries for its own use or for
any purpose other than to determine whether or not to license the Company's
products. Reuters shall not disclose or permit disclosure of any Confidential
Information of the Company to third parties or to employees of Reuters, other
than directors, officers, employees, consultants and agents of Reuters who are
required to have the information in order to determine whether or not to license
the Company's products. Reuters agrees that it shall take all reasonable
measures to protect the secrecy of and avoid disclosure or use of Confidential
Information of the Company and its Subsidiaries in order to prevent it from
falling into the public domain or the possession of persons other than those
persons authorized under this Agreement to have any such information. Such
measures shall include, but not be limited to, the highest degree of care that
Reuters utilizes to protect its own Confidential Information of a similar
nature, which shall be no less than reasonable care. Reuters further agrees to
notify the Company in writing of any actual or suspected misuse,
misappropriation or unauthorized disclosure of the Company's or any of its
Subsidiaries Confidential Information which may come to Reuters's attention.
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(b) Exceptions. Notwithstanding the above, Reuters shall not have
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liability to the Company or any of its Subsidiaries with regard to any
Confidential Information which:
(i) was in the public domain at the time it was disclosed by the
Company or any of its Subsidiaries or has entered the public domain through no
fault of Reuters;
(ii) was known to Reuters, without restriction, at the time of
disclosure, as demonstrated by files in existence at the time of disclosure;
(iii) is disclosed with the prior written approval of the
Company;
(iv) is independently developed by Reuters without use of any of
the Confidential Information; or
(v) is disclosed pursuant to applicable laws or regulations or
the order or requirement of a court, administrative agency, or other
governmental body; provided, however, that Reuters shall provide prompt notice
of such court order or requirement to the Company to enable the Company to seek
a protective order or otherwise prevent or restrict such disclosure.
5.3. No Duplication; Return of Materials. Reuters agrees, except as
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otherwise expressly authorized by the Company, not to make any copies or
duplicates of any Confidential Information.
5.4. No Rights Granted. Nothing in this Agreement shall be construed as
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granting any rights under any patent, copyright or other intellectual property
right of the Company or any of its Subsidiaries, nor shall this Agreement grant
Reuters any rights in or to the Company's or any of its Subsidiaries'
Confidential Information.
6. MISCELLANEOUS.
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6.1 Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of California.
6.2 Counterparts. This Agreement may be executed in counterparts, each of
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which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
6.3 Amendments and Waivers. This Agreement may not be amended or modified
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without the written consent of Reuters and the Company, nor shall any waiver be
effective against any party unless in a writing executed on behalf of such
party.
6.4. Severability. If any provision of this Agreement shall be declared
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void or unenforceable by any judicial or administrative authority, the validity
of any other provision and of the entire Agreement shall not be affected
thereby.
6.5 Other Obligations. The Company represents and warrants that it has
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not undertaken and covenants that neither it nor any subsidiary will undertake
any obligation to any
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third party which would prohibit or conflict with the obligations undertaken to
Reuters in this clause.
6.6 Equitable Relief. Each of the Company and Reuters acknowledges that
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a breach by it of its obligations hereunder will cause irreparable harm to the
other. Accordingly, each of Reuters and the Company acknowledges that the
remedy at law for a breach of its obligations hereunder will be inadequate and
agrees, in the event of a breach or threatened breach by the other of the
provisions contained herein, that nonbreaching party shall be entitled, in
addition to all other available remedies, to an injunction restraining any
breach and requiring immediate performance hereunder, without the necessity of
showing economic loss and without any bond or other security being required.
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If the foregoing accurately sets forth the agreements that the Company and
Reuters have reached with respect to the subject matter hereof, please indicate
your agreement to the terms contained herein by countersigning in the place
indicated below.
Sincerely,
MOAI TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Title: President and CEO
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AGREED AND ACCEPTED:
REUTERS HOLDINGS SWITZERLAND SA
By: _____________________________
Name:____________________________
Title:___________________________
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