EXHIBIT 10.4
SECOND AMENDING AGREEMEN TO
SOFTWARE DISTRIBUTION AGREEMENT
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SECOND AMENDMENT TO SOFTWARE DISTRIBUTION AGREEMENT
AGREEMENT made as of the 31st day of May, 2000.
B E T W E E N:
ORCHESTRAL CORPORATION, a private corporation incorporated pursuant to the
laws of the Province of Ontario, in Canada (the "Software Owner")
OF THE FIRST PART
- and -
IVP TECHNOLOGY CORPORATION, a public corporation incorporated pursuant to
the laws of the State of Nevada, in the United States of America (the
"Distributor")
OF THE SECOND PART
WHEREAS:
1. The parties have entered into a certain software distribution agreement
(the "Initial Software Distribution Agreement") made as of the 30th day of
March, 1999 whereby the Software Owner granted to the Distributor the
exclusive right and license to copy, distribute, market and sub-license
throughout the United States of America the Software listed in Schedule A
to the Software Distribution Agreement upon the terms and conditions set
out therein; and
2. The parties amended the Initial Software Distribution Agreement as of
September 1, 1999 (the Initial Software Agreement as amended is herein
referred to as the "Distribution Agreement") to (i) amend the definition
of "Territory" in the Software Distribution Agreement to mean the United
States of America and the European Economic Community, (ii) amend the
provisions of Section 3(b) of the Software Distribution Agreement to make
first and second level support the obligation of the Software Owner
instead of the Distributor, and (iii) obligate the Software Owner to
provide certain support an maintenance relating to the Software; and
3. The parties now desire to amend the Distribution Agreement to (i) extend
the term of said agreement through May 31, 2003, subject to the
satisfaction of certain conditions by the Distributor, (ii) expand the
Territory to include the Country of Switzerland, (iii) provide for the
payment of additional consideration by the Distributor, (iv) to provide
the registration under the Securities Act of 1933 of the capital stock
issued to the Software Developer, and (v) provide that the Distributor
will use its best efforts to develop a minimum of twelve (12) clients
prior to May 31, 2001.
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NOW THEREFORE THIS AGREEMENT WITNESSES that for and in consideration of
the mutual covenants and agreements contained in the Distribution Agreement and
in consideration of the further mutual covenants and agreements herein contained
and the sum of $2.00 now paid by each of the parties hereto to the other (the
receipt and sufficiency of which is hereby acknowledged), it is hereby agreed by
and between the parties hereto as follows:
1. All capitalized terms used herein shall have the same meanings as ascribed
thereto in the Distribution Agreement, except as expressly stated herein to the
contrary.
2. The Distribution Agreement is hereby amended as follows:
(a) in the first sentence of subsection (a) of Section 1, titled "Grant
of Rights," the words "(i) the United States of America during the
period from the Effective Date to and including August 31, 1999, and
(2) the United States of America and the European Economic Community
during the period from September 1, 1999 until the termination of
this Agreement (in either case, the "Territory")" shall be deleted
therefrom and the following words shall be substituted therefor:
"(1) the United States of America during the period from the
Effective Date to and including August 31, 1999, and (2) the United
States of America, the European Economic Community and the Country
of Switzerland during the period from September 1, 1999 until the
termination of this Agreement (in either case, the "Territory")";
(b) add the following subsection to Section 5(a):
"(v) during the month of June, 2000, deliver one million (1,000,000)
common shares in the capital stock of the Distributor to the
Software Owner."
(c) Add the following as the last subsection to Section 3:
"(d) Marketing and Technical Support. The Distributor shall use its
best efforts to develop at the earliest practicable date,
either internally or by contracting an independent third
party, a technical support team and a marketing team.
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(e) Financing. The Distributor shall exercise its best efforts to
complete a financing of a minimum of $2,000,000 at the
earliest practicable a portion of the net proceeds from which
would be used, inter alia, to contract the services of or to
develop its own internal technical support team and to
contract the services of or develop an internal marketing
group dedicated to the licensing of the Software.
(f) Registration of Shares. Distributor undertakes to use its
reasonable best efforts to prepare and file with the United
States Securities and Exchange Commission ("SEC"), by August
30, 2000, a registration statement ("Registration Statement")
under the Securities Act of 1933 (the "Act") which includes
all of the shares of capital stock issued to the Software
Owner hereby (the "Shares") and, subject to its right to
withdraw such filing, shall use its best efforts to effect
registration of such Shares under the Act. Distributor shall
use its best efforts to keep such Registration Statement
continuously effective under the Act until the date which is
two years after the date that such Registration Statement is
declared effective by the Commission or such earlier date when
all Shares covered by such Registration Statement have been
sold or may be sold without volume restrictions pursuant to
Rule 144(k) promulgated under the Act, as determined by the
counsel to the Distributor pursuant to a written opinion
letter to such effect addressed and acceptable to the
Distributor's transfer agent (the "Effectiveness Period").
Distributor will be entitled to postpone or interrupt the
effective date of any Registration Statement filed in
connection with such registration (and the use of the
prospectus contained therein) if the Distributor determines,
in its best judgment, after consultation with counsel, that
such Registration Statement would require the premature
announcement of any material financing, acquisition, corporate
reorganization or other material corporate transaction or
development involving the Distributor which, in the
Distributor's reasonable determination, would be materially
detrimental to the interests of the Distributor and its
stockholders. Any such postponement or interruption will be
for a minimum period reasonably required to avoid such
premature disclosure. The Distributor promptly will give the
Software Owner written notice of such postponement or
interruption.
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Distributor shall use its best efforts to register or qualify
the Shares covered by each Registration Statement under such
state securities or blue sky laws of such jurisdictions as the
Software Owner may reasonably request; provided, that the
Distributor shall not be required to execute any general
consent to service of process or to qualify to do business as
a foreign corporation in any jurisdiction where it is not so
qualified.
All expenses other than underwriting discounts and commissions
incident to the Distributor's performance of or compliance
with the undertaking made hereby, including without limitation
all registration and filing fees (other than registration and
filing fees in excess of $2,500 imposed by the state
securities or blue sky laws of any single jurisdiction),
printing expenses, messenger and delivery expenses, and fees
and disbursements of counsel for the Distributor and all
independent certified public accountants, underwriters
(excluding discounts and commissions) and other persons
retained by the Distributor (all such expenses being herein
called "Registration Expenses"), will be borne by the
Distributor. The Distributor will, in all events, pay its
internal expenses (including, without limitation, all salaries
and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit and the
expense of any liability insurance."
(f) Minimum Sales Requirements. Distributor agrees to use its
best efforts to effect sales of the Software to a minimum of
twelve (12) purchasers prior to the expiration of the
twelve-month period ending June 1, 2001. Any failure of the
Distributor to effect sales to such number of purchasers shall
not affect any of the Distributor's rights hereunder except
that the Distributor shall be required to compensate the
Software Owner for unearned royalties at the rate of $3,750
per unrealized sale up to the maximum of twelve (12) or
$45,000 and the Distributor shall be required to pay a penalty
of one hundred thousand (100,000) common shares in the event
that the objective of a minimum of twelve (12) new purchasers
is not met.
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(d) add the following language to the end of Section 5(a):
- ; provided, however, that the Distributor's obligation to make
such payments shall terminate three (3) months after the
receipt by the Software Owner of written notice from the
Distributor to the effect that it has either contracted for
the provision of such support services by an independent third
party or develops an internal technical support team."
(e) amend subsection 5(b) by deleting said section in its entirety and
replacing said subsection with the following"
"Price Schedule. Distributor and Software Owner agree that
Schedule F attached hereto represents the applicable list
price and price discount schedules for the Software in the
Territory. Software Owner may amend Schedule F no more than
once each year, except with the prior consent of Distributor.
(f) in the first sentence of Section 9, titled "Term and Termination," the
words "(i) "Except as otherwise provided herein, this Agreement commences on the
Effective Date and shall remain in effect for a term of fourteen (14) months."
shall be deleted therefrom and the following words shall be substituted
therefor:
"Except as otherwise provided herein, this Agreement commences
on the Effective Date and shall remain in effect until May 31,
2003."
(g) amend item 3 of Schedule H by deleting the words "Five percent (5%)"
and adding the following language:
"- Seven and one half percent (7 1/2%)..."
3. The Software Distribution Agreement, as changed, altered, amended or
supplemented by this amending agreement, shall continue in full force and effect
and is hereby confirmed by the parties hereto and, for greater certainty, time
shall continue to be of the essence in all respects.
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4. The Software Distribution Agreement shall henceforth be read in conjunction
with this amending agreement and the Software Distribution Agreement and this
amending agreement shall henceforth have effect so far as practicable as if all
the provisions of the Software Distribution Agreement and of this amending
agreement were contained in one instrument.
5. This amending agreement may be executed by the parties in counterparts and
may be delivered by telecopier, each of which when so executed and delivered
shall be deemed to be an original, and such counterparts shall together
constitute one and the same instrument. Notwithstanding the date of execution
and delivery of such counterparts, their date of execution and delivery shall be
deemed to be the date first written above.
IN WITNESS WHEREOF the parties hereto have duly executed and
delivered this amending agreement as of the date first written above.
ORCHESTRAL CORPORATION
By:
---------------------------------
Jeremy Rasmussen, President
IVP TECHNOLOGY CORPORATION
By:
---------------------------------
John Maxwell, President
