<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 24, 1997.
REGISTRATION NO. 333-18247
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
DELTEK SYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
VIRGINIA 7371 54-1252625
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CODE CLASSIFICATION NUMBER) IDENTIFICATION NO.)
</TABLE>
------------------------
8280 GREENSBORO DRIVE
MCLEAN, VIRGINIA 22102
(703) 734-8606
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
KENNETH E. DELASKI
PRESIDENT AND CHIEF EXECUTIVE OFFICER
DELTEK SYSTEMS, INC.
8280 GREENSBORO DRIVE
MCLEAN, VIRGINIA 22102
(703) 734-8606
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
<S> <C> <C>
DENNIS C. SULLIVAN, ESQ. ROBERT E. GREGG, ESQ. THOMAS A. BEVILACQUA, ESQ.
CHRISTOPHER J. HURLEY, ESQ. BENTON BURROUGHS, JR., ESQ. NORA L. GIBSON. ESQ.
GRAY CARY WARE & FREIDENRICH HAZEL & THOMAS, P.C. BROBECK, PHLEGER & HARRISON, LLP
A PROFESSIONAL CORPORATION 3110 FAIRVIEW PARK DRIVE TWO EMBARCADERO PLAZA
400 HAMILTON AVENUE SUITE 1400 2200 GENG ROAD
PALO ALTO, CA 94301 FALLS CHURCH, VA 22042 PALO ALTO, CA 94303
(415) 328-6561 (703) 641-4200 (415) 424-0160
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
------------------------
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
EXPLANATORY NOTE
Amendment No. 2 is being filed solely for the purpose of making certain
changes to Part II of the Registration Statement and filing certain exhibits to
the Registration Statement.
<PAGE> 3
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all costs and expenses, other than
underwriting discounts and commissions, payable by the Registrant and the
Selling Shareholders in connection with the sale and distribution of the
securities being registered. All amounts shown are estimates except the
Securities and Exchange Commission registration fee, the NASD filing fee and The
Nasdaq National Market application fee.
<TABLE>
<CAPTION>
TO BE PAID BY TO BE PAID BY
THE THE SELLING
REGISTRANT SHAREHOLDERS TOTAL
------------- ------------- --------
<S> <C> <C> <C>
Securities and Exchange Commission registration fee........ $ 6,697 $ 6,441 $ 13,138
NASD filing fee............................................ 2,710 2,126 4,836
Nasdaq National Market application fee..................... 56,867 -- 56,867
Accounting fees and expenses............................... 150,000 -- 150,000
Legal fees and expenses.................................... 260,000 15,000 275,000
Printing and engraving fees and expenses................... 125,000 -- 125,000
Transfer agent and registrar fees.......................... 15,000 -- 15,000
Blue Sky qualification fees and expenses................... 5,000 -- 5,000
Directors' and officers' liability insurance............... 140,000 -- 140,000
Miscellaneous expenses..................................... 38,726 1,433 40,159
-------- -------- --------
Total............................................ $ 800,000 $ 25,000 $825,000
======== ======== ========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 10 of the Virginia Stock Corporation Act (the "VSCA") allows for
indemnification, in certain circumstances, by a corporation of any person
threatened with or made a party to any action, suit or proceeding by reason of
the fact that he or she is, or was, a director, officer, employee or agent of
such corporation. The Registrant's Articles of Incorporation (Exhibit 3.1)
provide for mandatory indemnification of its directors and officers and for
discretionary indemnification of any employee or agent to the full extent
permitted by the VSCA, including in circumstances in which indemnification is
otherwise discretionary under the VSCA. In addition, the Registrant intends to
enter into separate indemnification agreements (Exhibit 10.10) with its
directors and officers setting forth certain procedures and other conditions
applicable to claims for indemnification pursuant to the Company's Articles of
Incorporation and agreeing, subject to certain limitations, to obtain and
maintain directors' and officers' liability insurance coverage for its directors
and officers. These indemnification provisions may be sufficiently broad to
permit indemnification of the Registrant's officers and directors for
liabilities (including reimbursement of expenses incurred) arising under the
Securities Act of 1933, as amended (the "Securities Act").
The Underwriting Agreement (Exhibit 1.1) provides for indemnification by
the Underwriters of the Registrant and its officers and directors for certain
liabilities arising under the Securities Act, or otherwise.
At present, there is no pending litigation or proceeding involving a
director, officer, employee or other agent of the Registrant in which
indemnification is being sought nor is the Registrant aware of any threatened
litigation that may result in a claim for indemnification by any director,
officer, employee or other agent of the Registrant.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
(a) Since December 31, 1993, the Registrant has sold and issued the
following securities, as adjusted to give effect to the three-for-one stock
split effected by means of a stock dividend in December 1996:
(i) The Company issued 102,000 shares of its Common Stock in
connection with its acquisition of The Allegro Group, Inc., which was
consummated on September 15, 1996.
II-1
<PAGE> 4
(ii) The Company has granted options to purchase an aggregate of
870,000 shares of its Common Stock to employees pursuant to its option
plans.
(iii) The Company has issued an aggregate of 133,500 shares of its
Common Stock upon exercise of employee stock options.
(b) There were no underwriters, brokers or finders employed in connection
with any of the transactions set forth in Item 15(a).
(c) The issuance described in Item 15(a)(i) was deemed to be exempt from
registration under the Securities Act in reliance upon Section 4(2) thereof as a
transaction not involving any public offering. The issuances described in Item
15(a)(ii) and (iii) were deemed exempt from registration under the Securities
Act in reliance upon Rule 701 promulgated thereunder.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) The following exhibits are filed with this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE
------ --------------------------------------------------------------------------------
<C> <S>
1.1 Form of Underwriting Agreement (draft dated January 15, 1997).
3.1 Amended and Restated Articles of Incorporation of the Registrant.
3.2 Amended and Restated Bylaws of the Registrant.
4.1 Specimen Common Stock certificate of the Registrant.
5.1 Opinion and Consent of Gray Cary Ware & Freidenrich, A Professional Corporation.
10.1 1987 Employee Stock Option Plan.
10.2 Employee Time Accelerated Stock Option Plan (revised).
10.3 1996 Stock Option Plan.
10.4 1996 Employee Stock Purchase Plan.
*+10.5 OEM Software License Agreement by and between the Company and Centura Software
Corporation dated as of March 1, 1993, as amended.
*+10.6 Cognos Desktop OEM Agreement by and between the Company and Cognos Corporation
dated as of February 28, 1994, as amended.
*+10.7 Micro Focus OSX Application Vendor License Agreement by and between the Company
and Micro Focus Incorporated dated as of June 10, 1993, as amended.
10.8 Agreement of Lease by and between the Company and Tysons Corner Limited
Partnership, dated as of November 12, 1991, as amended.
10.9 Agreement of Lease by and between the Company and Tysons Corner Limited
Partnership, dated as of November 12, 1992, as amended.
10.10 Form of Indemnity Agreement for officers and directors.
10.11 Form of Tax Indemnification Agreement.
10.12 Seventh Amendment to Agreements of Lease by and between the Company and Tysons
Corner Limited Partnership, dated as of December 17, 1997.
11.1 Computation of per share earnings.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Gray Cary Ware & Freidenrich, A Professional Corporation. Reference
is made to Exhibit 5.1.
23.3 Consent of Hazel & Thomas, P.C.
23.4 Consent of Darrell J. Oyer.
24.1 Power of Attorney. Reference is made to Page II-4.
27.1 Financial Data Schedule (revised) (filed in EDGAR format only).
</TABLE>
- ---------------
* Filed with Amendment No. 2. All other Exhibits have previously been filed.
+ This Exhibit has been filed separately with the Commission pursuant to an
application for confidential treatment. The confidential portions of this
Exhibit have been omitted and are marked by an asterisk.
II-2
<PAGE> 5
(b) Financial Statement Schedules:
Report of Independent Public Accountants on Schedules
Schedule II -- Valuation and Qualifying Accounts
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes to provide to the Underwriters
at the closing specified in the Underwriting Agreement certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions referenced in Item 14 of this Registration
Statement, or otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered hereunder, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of Prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in the
form of Prospectus filed by the Registrant pursuant to Rule 424 (b) (1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective; and
(2) For the purpose of determining any liability under the Securities
Act of 1933, each posteffective amendment that contains a form of
Prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended (the
"Securities Act"), the Registrant has duly caused this Amendment to Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of McLean, State of Virginia, on the 24th day of
February 1997.
DELTEK SYSTEMS, INC.
By: /s/ KENNETH E. DELASKI
------------------------------------
Kenneth E. deLaski
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------------------------- -------------------------- ------------------
<C> <S> <C>
President, Chief Executive February 24, 1997
/s/ KENNETH E. DELASKI Officer and Director
- ----------------------------------------------- (Principal Executive
(Kenneth E. deLaski) Officer
Chief Financial Officer February 24, 1997
ALAN R. STEWART* (Principal Financial and
- ----------------------------------------------- Accounting Officer)
(Alan R. Stewart)
Chairman of the Board of February 24, 1997
DONALD DELASKI* Directors
- -----------------------------------------------
(Donald deLaski)
Director February 24, 1997
ROBERT E. GREGG*
- -----------------------------------------------
(Robert E. Gregg)
*By: /s/ KENNETH E. DELASKI
- -----------------------------------------------
Kenneth E. deLaski
Attorney-in-Fact
</TABLE>
II-4
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE PAGE
------ -------------------------------------------------------------------------- ----
<C> <S> <C>
1.1 Form of Underwriting Agreement (draft dated January 15, 1997). ...........
3.1 Amended and Restated Articles of Incorporation of the Registrant. ........
3.2 Amended and Restated Bylaws of the Registrant. ...........................
4.1 Specimen Common Stock certificate of the Registrant. .....................
5.1 Opinion and Consent of Gray Cary Ware & Freidenrich, A Professional
Corporation. .............................................................
10.1 1987 Employee Stock Option Plan. .........................................
10.2 Employee Time Accelerated Stock Option Plan (revised). ...................
10.3 1996 Stock Option Plan. ..................................................
10.4 1996 Employee Stock Purchase Plan. .......................................
*+10.5 OEM Software License Agreement by and between the Company and Centura
Software Corporation dated as of March 1, 1993, as amended. ..............
*+10.6 Cognos Desktop OEM Agreement by and between the Company and Cognos
Corporation dated as of February 28, 1994, as amended. ...................
*+10.7 Micro Focus OSX Application Vendor License Agreement by and between the
Company and Micro Focus Incorporated dated as of June 10, 1993, as
amended. .................................................................
10.8 Agreement of Lease by and between the Company and Tysons Corner Limited
Partnership, dated as of November 12, 1991, as amended. ..................
10.9 Agreement of Lease by and between the Company and Tysons Corner Limited
Partnership, dated as of November 12, 1992, as amended. ..................
10.10 Form of Indemnity Agreement for officers and directors.
10.11 Form of Tax Indemnification Agreement. ...................................
10.12 Seventh Amendment to Agreements of Lease by and between the Company and
Tysons Corner Limited Partnership, dated as of December 17, 1997. ........
11.1 Computation of per share earnings. .......................................
23.1 Consent of Arthur Andersen LLP. ..........................................
23.2 Consent of Gray Cary Ware & Freidenrich, A Professional Corporation.
Reference is made to Exhibit 5.1. ........................................
23.3 Consent of Hazel & Thomas, P.C. ..........................................
23.4 Consent of Darrell J. Oyer. ..............................................
24.1 Power of Attorney. Reference is made to Page II-4. .......................
27.1 Financial Data Schedule (revised) (filed in EDGAR format only). ..........
</TABLE>
- ---------------
* Filed with Amendment No. 2. All other Exhibits have previously been filed.
+ This Exhibit has been filed separately with the Commission pursuant to an
application for confidential treatment. The confidential portions of this
Exhibit have been omitted and are marked by an asterisk.
<PAGE> 1
EXHIBIT 10.5
OEM SOFTWARE LICENSE AGREEMENT
PREAMBLE: This Agreement ("Agreement") is effective as of the date shown on
the signature page between Gupta Corporation ("GUPTA"), a California
corporation, with offices at 1060 Marsh Road, Menlo Park, CA 94025 and the
organization specified on the signature page ("OEM") hereby enter into this
agreement whereby GUPTA is engaged in the business of designing and developing
database management software and has developed proprietary software products
collectively called "THE SQL SYSTEM" and OEM wishes to incorporate one or more
of such software products into OEM Products as defined and specified herein,
and OEM and GUPTA desire to enter into an agreement pursuant to which GUPTA
will provide such products for integration into a OEM Product within the
geographic territory specified on the signature page ("Territory") only who
will then further such Programs to end users in the Territory for their own
use, in accordance with the terms and conditions hereof.
- --------------------------------------------------------------------------------
1. CERTAIN DEFINITIONS
1.1 "Program"
Shall mean the proprietary software programs in object code form specified on
the signature page to this Agreement.
1.2 "List Price" and "Territory List Price"
The term "List Price" shall mean the generally published single copy price for
the Program for a particular country or territory as found in the then-current
applicable Gupta OEM Price List for that specific geographic region if the
reference price only refers to that geographic region.
If the reference price of a given Program applicable to OEM is to vary from
geographic region to region then the term "Territory List Price" will be used.
Then-current applicable, generally published OEM Price Lists for requested
territories or countries will be supplied to OEM upon written request to GUPTA.
GUPTA reserves the right to modify or change the List Price or Territory List
Price of any Program, or of any other produce or services, at its sole
discretion, upon 30 days written notice to OEM.
1.3 "Distributor"
Shall mean any entity who is duly authorized by OEM to sublicense and/or
manufacture the Programs.
1.4 "Sublicensee"
Shall mean any entity who has been sublicensed by OEM or by a Distributor to
use the Programs.
1.5 "OEM Product"
Shall mean only the OEM programs or products specifically described or listed
on the signature page, and shall also include any Derivative Works.
Any OEM Product:
(i) must not provide a general purpose programming interface to the Programs
or links to one;
(ii) must not make the SQL/API or the SQL language directly accessible to
users;
(iii) must not provide a general purpose capability to users to create or
modify tables in the database. The application software may, however, create
tables without knowledge of the user for the purpose of storing application
specific data (e.g., parts table in an inventory control application) or for
storing and manipulating temporary results from queries;
(iv) must not contain a general purpose forms definition, adhoc query,
reporting or data analysis tool, except for the sole purpose of providing data
entry and reporting facilities for application specific data;
(v) must not function as a general purpose database management system.
1.6 "Derivative Works"
Shall mean a revision, modification, enhancement, abridgement, condensation or
expansion of a OEM Product or any form in which such OEM Product may be recast,
transformed, or adapted by OEM.
1.7 "License" or "Copy"
Shall mean a single copy of a Program or a OEM Product.
2. GRANT OF RIGHTS
2.1 Manufacturing, Sublicensing, Distribution and Packaging Rights
GUPTA grants to OEM, during the term of this Agreement, a non-exclusive, right
to manufacture, sublicense, distribute and package the Programs within the
Territory for use in conjunction with and as an embedded component of a OEM
Product only. OEM must specifically restrict its sublicensees from using a OEM
Product or any components thereof for general purpose application development
or for any other purpose that would violate the restrictions specified in this
Section 2.1 or Section 1.5 above.
2.2 Technical Restriction
GUPTA shall be permitted to make, or require OEM to make, reasonable technical
modifications to the Programs to ensure that the provisions of Section 1.5 and
2.1 regarding the sublicensing and use of the Programs are complied with,
provided, however, that the modifications do not unduly affect the legitimate
use of the Programs under the terms of this Agreement.
LICENSEE___________ GUPTA ______
[*] IDENTIFIES REDACTED MATERIAL DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
<PAGE> 2
2.3 Sublicense Agreements
OEM agrees to sublicense the Programs only under an enforceable written
agreement, which may be shrinkwrapped, between OEM and its Sublicensees, which
(i) protects GUPTA's (and/or GUPTA's Licensors) proprietary rights and title to
the Programs, and (ii) which expressly prohibits the Sublicensee from using the
Programs for any purpose other than that permitted by the OEM Product.
2.4 Distributor Agreements
If OEM appoints a Distributor to market or otherwise sublicense an OEM Product,
then OEM will do so only under a written agreement between OEM and Distributor
which requires the Distributor to agree to the terms of Section 2.3 above, and
to further sublicense the Programs under the same terms. In addition, such
agreement must require Distributor to comply with the terms of Section 11.2
below.
2.5 Rights and Title
GUPTA and/or GUPTA's Licensors shall retain all right, title and interest in
and to the Programs (including without limitation all improvements, updates,
enhancements and copies thereof made by or for GUPTA) subject to a license to
OEM granted hereunder. Other than for exercising the rights granted in this
Agreement, OEM shall not use, duplicate, transfer, or otherwise modify the
Programs for any other purposes. OEM agrees not to, or cause a third party to,
dissemble or reverse compile, the Programs.
3. FEES AND PAYMENTS
3.1 Initial Payment and Commitment
In consideration for the rights granted in Section 2 above, upon the execution
of this Agreement, OEM agrees to pay to GUPTA the payment as specified on the
signature page. This initial payment shall serve as a noncontingent,
nonrefundable advance against License Fees that may become due to GUPTA under
Section 3.2 below.
3.2 License Fees
For each Copy of a Program distributed, sublicensed and/or shipped to a
customer by OEM under the terms of this Agreement, OEM agrees to pay a License
Fee equal to the single-copy Territory List Price for such Program, less the
applicable discount ("Discount") specified on the signature page.
3.3 Support Fee
In consideration for the support and maintenance services provided by GUPTA as
specified in Section 4 below, for each calendar quarter that this Agreement is
in effect, OEM agrees to pay GUPTA a quarterly Support Fee as specified on the
signature page.
3.4 Product Upgrade Fees
For each Copy of a new Enhancement Release or Major Version of the Programs (as
defined in GUPTA's generally published support policies, which may be changed
from time-to-time by GUPTA) sublicensed, distributed and/or shipped by OEM to
its existing customers for the OEM Products under the terms of this Agreement,
OEM shall pay to GUPTA a fee ("Product Upgrade Fee") equal to GUPTA's generally
published Territory List Price for such new Enhancement Release or Major
Versions less the discount specified on the signature page.
3.5 Reports and Payments
(i) All payments under this Agreement shall be made in U.S. dollars.
(ii) Payments of OEM's initial commitment shall be made as specified in
Section 3.1 above.
(iii) During the term of this Agreement and within thirty (30) days of the end
of each calendar quarter, OEM shall report ("Report") to GUPTA in writing all
copies of OEM Products and the Programs sublicensed, distributed and/or shipped
by OEM. Such Report shall also include a calculation of Licensee Fees and
Product Upgrade Fees due to GUPTA for such Copies, based upon the fees
specified in Sections 3.2 and 3.4, such fee to be based on the gross number of
Copies of the Programs distributed, sublicensed and/or shipped by OEM less
returned copies and a reasonable number of demonstration and evaluation copies.
OEM shall make payment of the fees specified in each Report, with an adjustment
for advances if any are outstanding, along with its submission. Should the
calculation of fees due to GUPTA be found to be in error, an adjustment shall
be made within fifteen days of the discovery of such error.
(iv) Payment of the Support Fee for any given calendar quarter shall be made
on or before the last day of the immediately previous calendar quarter.
3.6 Records and Review
OEM shall keep accurate records necessary to verify compliance with licensing
and payment terms of this Agreement, along with reasonable detail. OEM shall,
with reasonable advance notice, make such records available to GUPTA for
inspection during normal business hours. OEM shall pay GUPTA's reasonable,
documented, out-of-pocket expenses incurred in connection with such inspection
if and only in the case that such inspection reveals that the payments made by
to GUPTA during any applicable period aggregated less than ninety-five percent
(95%) of the payments required to be made during such period.
3.7 Shipping Expenses
All prices are ex-works Menlo Park, and OEM shall reimburse GUPTA for any
shipping expenses incurred by GUPTA.
3.8 Service Charge
A service charge of 1.5% per month will apply to all delinquent payments.
4. SUPPORT AND MAINTENANCE
4.1 Technical Support
GUPTA shall provide OEM with the applicable technical support services
specified on the signature page. GUPTA's support services and maintenance of
the Programs shall be consistent with GUPTA's generally published support
programs and policies, which may be changed from time-to-time by GUPTA.
4.2 Support of OEM's Sublicensees and/or Distributors
OEM shall be responsible for supporting OEM's Sublicensees and/or Distributors
for the Programs.
4.3 Product Updates
Provided that OEM has paid the Support Fee as provided in Section 3.3 above,
during the term of this Agreement periodic updates ("Product Updates") to the
Programs will be provided to OEM, such Product Updates to include Maintenance
Releases. Such Product Updates will be provided to OEM contemporaneously with
when GUPTA first makes such Product Updates commercially available to its other
OEM customers for the Programs. OEM shall have the right to sublicense and
distribute (as provided in Section 2.3 above) such Product Updates to its
existing customers for the OEM Products without payment of additional fees to
GUPTA.
4.4 Product Upgrades
Provided that has paid the Support Fee as provided as provided in Section 3.3
above, during the term of this Agreement periodic upgrades ("Product
Upgrades") to the Programs will be provided to OEM, such Product Upgrades to
include Enhancement Releases and Major Versions to the Programs. GUPTA shall
use reasonable efforts to provide information to
<PAGE> 3
OEM for such Product Upgrades (4) to (6) months in advance of when such Product
Upgrades are commercially available. Furthermore, such Product Upgrades will be
provided to OEM contemporaneously with when GUPTA first makes such Product
Upgrades commercially available to its other OEM customers for the Programs.
OEM shall have the right to sublicense and distribute (as provided in Section
2.1 above) such new Major Versions of the Programs to its existing customers
for the OEM Products, subject to the payment of Product Upgrade Fees as
provided in Section 3.4 above.
4.5 Training and Consulting
OEM may avail of GUPTA's services for product training and custom development
at the then current Territory List Prices for such services, or as contained in
the then current GUPTA U.S. and Canada Price List.
5. CONFIDENTIAL
GUPTA AND OEM agree that each of them shall, during the term of this Agreement
and for five (5) years thereafter, take all steps which are necessary or
reasonable to safeguard the secrecy and confidentiality of, and proprietary
rights to, the confidential information of the other party disclosed hereunder
(including, but not limited to, product plans, marketing and/or other business
plans, technical specifications, the terms and conditions of this Agreement,
and, if disclosed, portions of the Programs source code) and shall not, without
the prior written consent of the other party, disclose the foregoing to any
third party; provided, however, that this provision shall not be construed to
restrict the disclosure of information which (a) is publicly known at the time
of its disclosure to a party, (b) is lawfully received by a party from a third
party not bound in a confidential relationship to GUPTA or OEM, (c) was already
known by GUPTA or OEM at the time of disclosure by the other party, or (d) is
required by law to be disclosed by such party.
6. WARRANTIES
6.1 Representation and Warranties of GUPTA
GUPTA hereby represents and warrants to OEM that (i) to the best of GUPTA's
knowledge, the Program does not infringe any patent, copyright, trade secret or
any other proprietary right of any third party, (ii) GUPTA and/or to the best
of GUPTA's knowledge GUPTA's Licensors owns all right, title and interest in
and to the Program, free and clear of all liens, security interests, charges or
encumbrances by third parties; and (iii) GUPTA has full right, power and
authority to enter into this Agreement and to carry out its obligations
hereunder.
6.2 Limitation of Warranties
OTHER THAN THE REPRESENTATIONS SET FORTH IN THIS AGREEMENT, GUPTA MAKES NO
WARRANTIES EXPRESS OR IMPLIED, CONCERNING THE PROGRAMS, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IT IS
EXPRESSLY AGREED THAT GUPTA SHALL NOT BE LIABLE, OR IN ANY WAY RESPONSIBLE FOR
THE COMMERCIAL SUCCESS OF THE PROGRAM OR ANY ENHANCEMENT THEREOF.
7. INDEMNIFICATIONS AND LIMITATION OF LIABILITY
7.1 Indemnification by GUPTA
GUPTA agrees to hold OEM harmless from and against any liability whatsoever
associated with any claim or suit for infringement of any United States
copyright, patent, trade secret or other proprietary right of another as a
result of its use or of any version of the Programs. To qualify for indemnity
under this Section 7.1 OEM must (i) give GUPTA prompt written notice of any
such claim or liability, and (ii) allow GUPTA to control and cooperate with
GUPTA (at GUPTA's expense, excluding the time spent by employees or consultants
of OEM) in the defense of any such claim and in all related settlement
negotiations. In the event that OEM wishes to participate in the defense of
any such claim, GUPTA shall allow OEM to participate at its own expense.
GUPTA has no obligations or liability under this Section for any claim based on
the use of the Programs or parts thereof with software not delivered by GUPTA
or when used in a manner for which it was notdesigned or where modified by or
for OEM in a manner to become infringing.
THIS SECTION STATES GUPTA'S ENTIRE LIABILITY WITH RESPECT TO INFRINGEMENT OF
INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
7.2 Indemnification by OEM
OEM agrees to hold GUPTA harmless from and against any liability whatsoever
associated with the use of the Programs by OEM or its Sublicensees and/or
Distributors except as provided in Section 7.1 and to the extent that such
liability does not result from a breach of Section 6.1. To qualify for
indemnity under this Section 7.2, GUPTA must (i) give OEM prompt written notice
of any such claim or liability, and (ii) allow OEM to control and cooperate
with OEM at OEM's expense in the defense of any such claim and in all related
settlement negotiations. In the event that GUPTA wishes to participate in the
defense of any such claim, OEM shall allow GUPTA to participate at its own
expense.
7.3 Limitation of Liability
EXCEPT AS SET FORTH IN SECTION 7.1 ABOVE, GUPTA'S LIABILITY ARISING OUT OF THIS
AGREEMENT OR THE USE OR DISTRIBUTION OF ANY LICENSE SHALL BE LIMITED TO THE
AMOUNT PAID BY OEM TO GUPTA FOR THAT LICENSE UNDER THE TERMS OF THIS AGREEMENT.
IN NO EVENT SHALL GUPTA BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS
BY ANYONE, NOR WILL GUPTA BE LIABLE FOR SPECIAL, CONSEQUENTIAL, OR OTHER
DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR
OTHERWISE, AND WHETHER OR NOT GUPTA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THE ESSENTIAL PURPOSE OF THIS SECTION IS TO LIMIT THE POTENTIAL
LIABILITY OF GUPTA ARISING OUT OF THIS AGREEMENT.
8. PROPRIETARY RIGHTS
8.1 Trademarks
GUPTA hereby warrants that SQLBase, SQLGateway, SQLHost, Quest, SQLTalk,
SQLRouter and SQLWindows are registered trademarks of GUPTA in the U.S.A.
GUPTA represents that it is applying for numerous other trademarks in the
U.S.A. and other jurisdictions. GUPTA hereby authorizes OEM to use GUPTA's
trademarks in its product and marketing literature, provided OEM shall
adequately acknowledge and publish GUPTA's ownership of such trademarks. GUPTA
reserves the right to revoke such authorization, at GUPTA's sole discretion.
8.2 Copyrights
Subject to the rights and licenses granted to OEM by this Agreement, GUPTA
shall have sole and exclusive right, title, and interest in and to its
copyright in the Programs (including without limitation all improvements,
updates, enhancements and copies thereof made by or for GUPTA or OEM). OEM
shall reproduce GUPTA's copyright on the title screen or "About Box" of the
Programs and on the package and/or media containing the relevant Program.
9. SALE OR ASSIGNMENT
OEM may not assign this Agreement without the prior written consent of GUPTA.
<PAGE> 4
10. TERM AND TERMINATION
10.1 Term of Agreement
The initial term of this Agreement shall expire on the date specified on the
signature page. Thereafter, it may be renewed, on an annual basis, only upon
mutual written agreement.
10.2 Termination for Breach
Either party may terminate this Agreement for material breach of this Agreement
upon thirty (30) days prior written notice, if said breach is not cured by the
other party within such period (or longer period if the parties agree in
writing).
10.3 Continuing Obligations
The termination of this Agreement for any reason shall not relieve any party of
(i) its obligations to make payments which may have accrued hereunder, but
which remained unpaid as of the date of termination; (ii) to maintain
confidentiality; and (iii) to indemnify against certain actions. The
termination of this Agreement shall not in any manner terminate, abrogate, or
otherwise limit or curtail the rights and licenses previously granted to
Sublicensees pursuant to this Agreement, including OEM's right to continue to
support its customers for the applications that include or access the Programs.
10.4 Force Majeure
Neither party shall be liable for any delays in the performance of any of its
obligations hereunder due to causes beyond its control, including but not
limited to, fire, strike, war, riots, acts of any civil or military authority,
judicial action, acts of God, or other casualty or natural calamity.
11. MISCELLANEOUS PROVISIONS
11.1 Entire Agreement
This Agreement, together with the Exhibits attached hereto, sets forth the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes any and all prior agreements, understandings, promises
and representations made by either party to the other concerning the subject
matter hereof and the terms applicable hereto. This Agreement may not be
released, discharged, amended or modified in any manner except by an instrument
in writing signed by both parties hereto.
11.2 Import and Export Provisions
OEM shall, at its own expense, pay all import and export licenses and permits,
pay customs charges and duty fees, and take all other actions required to
accomplish the export and import of the Programs acquired by OEM. In the
performance of their respective obligations under this Agreement, Gupta and OEM
shall, at all times, strictly comply with all laws, regulations and orders of
the United States of America and other applicable jurisdictions. Without
limiting the generality of this Section 11.2, the parties specifically
acknowledge that the Programs and Confidential Information are subject to
United States export controls, including, without limitation, the Export
Administration Regulations, 15 C.F.R. Parts 768-799. OEM agrees, and shall
cause each end-user and/or reseller to agree, that it will not export or
reexport the Programs, the Confidential Information or any direct product
thereof, directly or indirectly to, or for use in, any country for which such
export is forbidden and/or controlled by the laws of the United States of
America or other applicable jurisdictions.
11.3 Parties Independent
In making and performing this Agreement, the parties act and shall act at all
times as independent contractors and nothing contained in thisAgreement shall
be construed or implied to create an agency, partnership or employer and
employee relationship between OEM and GUPTA or between any party hereto and any
officer or employee of the other party. At no time shall either party make
commitments or incur any charges or expenses for or in the name of the other
party.
11.4 Severability
The invalidity or unenforceability of one or more provisions of this Agreement
shall not affect the validity or enforceability of any of the other portions
hereof, and this Agreement shall be construed in all respects as if such
invalid or unenforceable provisions were omitted.
11.5 Governing Law
This Agreement shall be construed and enforced in accordance with the laws of
the U.S.A. and the state of California. All disputes arising out of this
Agreement shall be subject to the exclusive jurisdiction of the California
State courts, San Mateo County, California (or, if there is exclusive federal
jurisdiction, the United States District Court for the Northern District of
California), and the parties agree and submit to the personal and exclusive
jurisdiction and venue of these courts.
11.6 Injunctive Relief
Each party acknowledges that the other believes that its confidential
information is unique property of extreme value to the other party, and the
unauthorized use or disclosure thereof would cause the other party irreparable
harm that could not be compensated by monetary damages. Accordingly, each party
agrees that the other may seek injunctive and preliminary relief to remedy any
actual or threatened unauthorized use or disclosure of the other party's
confidential information.
11.7 Waivers
The failure of either party to insist, in any one or more instances, upon the
performance of any of the terms, covenants or conditions of this Agreement,
shall not be constructed as a waiver or relinquishment of the future
performance of any such term, covenant or condition, but the obligations of the
other party with respect to such future performance shall continue in full
force and effect.
11.8 Headings
The headings of the articles and sections used in this Agreement are included
for convenience only and are not to be used in construing or interpreting this
Agreement.
11.9 Notices
Any notice required to be made or given to either party hereto shall be made by
personal delivery, to a designated FAX number, telegram, telex, mailgram,
certified or registered mail return receipt requested, postage prepaid, and
addressed to such party at its address set forth on the first page of this
Agreement or to such other address of such party shall designate by written
notice. Written notice shall be deemed to have been given (48) hours after
posting when sent by first class mail, on delivery when sent by hand, and when
to a designated FAX number.
11.10 Counterparts
This Agreement may be executed in two counterparts, each of which shall be an
original; but such counterparts shall together constitute but one and the same
instrument.
11.11 Taxes
OEM shall pay or reimburse GUPTA for all national, federal, state, local or
other taxes and assessments of any jurisdiction, including sales or use taxes,
property taxes, withholding taxes as required by international tax treaties,
customs or other import or export taxes,value added taxes, and amounts levied
in lieu thereof based on charges set, services performed or to be performed or
payments made or to be made under this Agreement. In no case shall OEM be
liable for taxes based on GUPTA's net income.
<PAGE> 5
11.12 Marketing and Promotional Activities
As soon as practicable after the effective date of this Agreement, both parties
will issue a joint press release announcing OEM's rights to distribute and
market the Programs, but in no case shall such press release be issued without
the consent of both parties. GUPTA shall have the right to use the OEM name in
customer lists or promotional documents that incorporate such lists. During
the term of this Agreement, both parties agree to cooperate in ongoing joint
promotional and marketing activity with respect to the Programs and to respect
the other party's reasonable policies with respect to use of its corporate or
product names.
<PAGE> 6
OEM SOFTWARE LICENSE AGREEMENT
(Signature Pages)
IN CASE OF CONFLICT BETWEEN THE TERMS AND CONDITIONS SPECIFIED ON THE SIGNATURE
PAGES BELOW AND THE TERMS AND CONDITIONS CONTAINED IN THE BODY OF THE
AGREEMENT, THE TERMS AND CONDITIONS OF THESE SIGNATURE PAGES SHALL CONTROL.
1. OEM: For purposes of this Agreement, OEM shall be the following
organization at the designated address:
Organization Name: Deltek
Organized Under the laws of: Virginia
Headquarters Address: 8280 Greensboro Drive
Suite 300
McLean, VA 22102
Phone: (703) 734-8606 FAX: (703) 734-0346
-------------- --------------
2. TERRITORY: Worldwide
3. EFFECTIVE DATE OF AGREEMENT: March 1, 1993
4. TERMINATION DATE: March 31, 1996
5. PROGRAMS (PLEASE LIST): SQLBASE FOR SUN UNIX (UNLIMITED USERS)
SQLBASE FOR SUN UNIX (5 USERS)
SQLBASE NLM (UNLIMITED USERS)
SQLBASE NLM (20 USERS)
SQLBASE NLM (5 USERS)
SQLBASE FOR OS/2 (UNLIMITED USERS)
SQLBASE FOR OS/2 (5 USERS)
SQLBASE FOR OS/2 (SINGLE USER)
SQLBASE FOR DOS (UNLIMITED USERS)
SQLBASE FOR DOS (5 USERS)
SQLBASE FOR DOS (SINGLE USER)
SQLBASE SERVER FOR WINDOWS
SQLBASE ENGINE FOR WINDOWS
SQLWINDOWS RUNTIME FOR DOS*
Sig 1
<PAGE> 7
FOR PURPOSES OF THIS AGREEMENT ONLY, THE LIST PRICE FOR THE SQLWINDOWS RUNTIME
FOR DOS AS IT AFFECTS OEM SHALL BE $0 (ZERO U.S. DOLLARS).
6. INITIAL PAYMENT AND COMMITMENT:
(a) In consideration for the rights granted in Section 2 of this Agreement,
OEM agrees that the sum of [*] is immediately due and payable to GUPTA and shall
be paid by OEM to GUPTA net thirty (30) days from receipt of GUPTA's invoice.
This sum shall serve as a noncontingent, nonrefundable advance against License
Fees that may become due to GUPTA under Section 3.2 of the Agreement.
(b) Provided that OEM has not exercised its option to terminate the
agreement or increase its discount as provided in Item 7(b) below, OEM further
agrees that its minimum nonrefundable payments of License Fees (over and above
the initial payment specified in Item 6(a) above) during each twelve month
period that this Agreement is in effect shall be [*]. If, during the annual
period ending March 31 of each calendar year that this Agreement is in effect,
such nonrefundable payments of License Fees to GUPTA do not equal or exceed [*],
then OEM agrees to pay the difference between such payments actually made to
GUPTA and [*] on or before March 31 of such calendar year, such payment to serve
as an additional noncontingent, nonrefundable advance against License Fees that
may become due to GUPTA during the remaining term of the Agreement.
Example: Assume that OEM makes payment to GUPTA of License Fees (over
and above the initial prepayment) of [*] each along with the quarterly
reports for the quarters ending June 30, 1993, September 30, 1993 and
December 31, 1993. Therefore, in order to meet the requirement of the
above paragraph, OEM will make a nonrefundable payment of License Fees
to GUPTA in the amount of [*] on or before March 31, 1994.
7. LICENSE FEES/DISCOUNTS:
(a) For each Copy of a Program distributed, sublicensed and/or shipped to
a customer by OEM under the terms of this Agreement, OEM agrees to pay GUPTA
the following License Fees:
(i) For Copies of the Programs, the U.S. and Canada List Price
for such Program [*];
[*] IDENTIFIES REDACTED MATERIAL DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
Sig 2
<PAGE> 8
(ii) For Copies of the Standard Products (as provided in Section
2.l(ii) of this Agreement), the Territory List Price [*].
(iii) In the event that GUPTA is in default of its shipment
obligations for OEM's orders for such Standard Products as provided in
this item 7 under the rights granted to OEM under Section 2.1 (ii) of
this Agreement, for a period in excess of thirty (30) days, then OEM
shall have a limited right to manufacture the Standard Products for
the sole purpose of distribution as provided under Section 2.1(ii) of
this Agreement. OEM shall report to GUPTA within ten (10) days of
manufacture any copies it makes of the Standard Products under this
provision and the applicable License Fees for such Standard Products
shall be credited against OEM's outstanding prepayment balance with
GUPTA.
OEM's right to manufacture copies of such Standard Products hereunder
shall terminate at the earlier of: (i) the termination or expiration
of this Agreement; (ii) when GUPTA has demonstrated that it is able to
meet its shipment obligations hereunder at which time OEM shall notify
GUPTA in writing that such has occurred, or (iii) when the applicable
prepayments are exhausted.
(iv) OEM shall acquire support services for the Standard Products
under GUPTA's then current prices, terms and according to GUPTA's
support policy in effect at the time.
(b) On or before December 15, 1993, OEM agrees to notify GUPTA in writing
whether (i) it elects to terminate this Agreement effective December 31, 1993
at which point OEM shall have no financial obligation to Gupta other than that
which would be due to Gupta for licensing and support through December 31, 1993
or (ii) it will elect to increase the above discount [*]. If OEM so elects,
then the provisions of 6(b) above are waived and OEM agrees to make minimum
nonrefundable, noncontingent advance payments of License Fees in the following
amounts on or before the specified dates:
Amount Date
------ ----
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] IDENTIFIES REDACTED MATERIAL DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
Sig 3
<PAGE> 9
8. OEM SUPPORT FEE:
(a) During the initial four calendar quarters following execution of this
Agreement and in consideration for the support and maintenance services provided
by GUPTA as specified in Section 4 of this Agreement, OEM agrees to pay GUPTA a
quarterly fee equal to the sum of (i) [*] of GUPTA's then current fee for STAR
Support Service (as of the date of execution of this Agreement such fee is [*]),
plus (ii) a Support Fee of $12,500 of the cumulative License Fees for Standard
Product shipped by Gupta to OEM and for License Fees earned by Gupta for
Programs sublicensed by OEM (or distributed by OEM under Section 2.1 of this
Agreement) as of the end of the previous calendar quarter, reduced by those
License Fees paid by OEM for customers of the OEM Product who are not receiving
maintenance support for the OEM Product from OEM.
Example: Assume that at the time a quarterly support fee is due, Gupta
has shipped to OEM [*] worth of Standard Products and OEM has
sublicensed [*] worth of Programs. The fee due to Gupta at that time
would be [*] calculated as [*] for STAR Support (assuming the current
charge of [*] annually has not changed) plus [*] of [*].
The current STAR Support Agreement is attached to these Signature Pages as
Exhibit I.
(b) Subsequent to the initial four calendar quarters following execution of
this Agreement and in consideration for the support and maintenance services
provided by GUPTA as specified in Section 4 of this Agreement, OEM agrees to pay
GUPTA a quarterly fee equal to [*] of the cumulative License Fees for Standard
Product shipped by Gupta to OEM and for License Fees earned by Gupta for
Programs sublicensed by OEM (or distributed by OEM under Section 2.1 of this
Agreement) as of the end of the previous calendar quarter, reduced by those
License Fees paid by OEM for customers of the OEM Product who are not receiving
maintenance support for the OEM Product from OEM. OEM may, at its option,
acquire STAR Support Services for such subsequent period(s) from GUPTA, under
GUPTA's then current STAR Support Services terms and conditions, and unless OEM
so elects, GUPTA shall have no obligation to provide such STAR Support Services
during such subsequent period(s).
(b) For purposes of this Agreement only, GUPTA agrees to support prior
versions of the Programs up to a maximum of one (1) calendar year after release
of a successor version of such Program. Such support services shall be charged
to OEM at GUPTA's then current time and materials rate in effect. Terms of
payment shall be net thirty (30) days from receipt of GUPTA's invoice.
[*] IDENTIFIES REDACTED MATERIAL DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
Sig 4
<PAGE> 10
9. PRODUCT UPGRADE FEE:
(a) For each Copy of a new Enhancement Release or Major Version of the
Programs (as specified in Section 3.4 of this Agreement) sublicensed,
distributed and/or shipped by OEM to its existing customers for the OEM Product
under the terms of this Agreement, OEM shall pay to GUPTA a Product Upgrade Fee
equal to the [*] (i) GUPTA's generally published U.S. and Canada List Price
for such new Enhancement Release or Major Versions of such Program less
OEM's then-current Discount for the Programs as provided under item 7 above or
(ii) [*] of (a) GUPTA's generally published List Price for the underlying
Program less (b) OEM's then current Discount for the Programs as provided
under item 7 above.
(b) For each Copy of a new Enhancement Release or Major Version of the
Standard Products distributed by OEM to its existing customers for the OEM
Product under the terms of this Agreement OEM shall pay to GUPTA a Product
Upgrade Fee equal to GUPTA's generally published U.S. and Canada List Price for
such new Enhancement Release or Major Versions for such Standard Product less
OEM's then-current Discount.
10. OEM PRODUCT:
For purposes of this Agreement the OEM Product shall mean any accounting, job
cost, or material management software application product which OEM sells.
[*] IDENTIFIES REDACTED MATERIAL DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
Sig 5
<PAGE> 11
11. OTHER TERMS:
A. SECTION 1 ("CERTAIN DEFINITIONS") OF THE AGREEMENT IS AMENDED TO ADD
THE FOLLOWING ADDITIONAL DEFINITION AS SECTION 1.8.
1.8 "Standard Products"
Shall mean GUPTA's commercially available Quest for Windows, and
SQLWindows Standard Edition and SQLWindows Corporate Edition software
products only, as found in the then current applicable (commercial)
GUPTA Territory Price List. Copies of these price lists shall be
provided to OEM at OEM's written request to Gupta.
B. SECTION 2.1 ("MANUFACTURING, SUBLICENSING, DISTRIBUTION AND PACKAGING
RIGHTS") OF THIS AGREEMENT IS DELETED AND REPLACED AS FOLLOWS:
2.1 Manufacturing. Sublicensing, Distribution and Packaging Rights
(i) GUPTA grants to OEM, during the term of this Agreement, a
non-exclusive, right to manufacture, sublicense, distribute and
package the Programs within the Territory for use in conjunction with
and as an embedded component of a OEM. OEM must specifically restrict
its sublicensees from using a OEM Product or any components thereof
for general purpose application development or for any other purpose
that would violate the restrictions specified in this Section 2.1 or
Section 1.5 above.
(ii) GUPTA further grants to OEM a non-exclusive right to
distribute the Standard Products as manufactured and packaged by GUPTA
within the Territory for use in conjunction with the OEM Product only.
IN WITNESS WHEREOF, the parties hereby confirm that this Agreement is effective
at the date set forth above and that all terms and conditions have been agreed
to:
By: /s/ Kenneth E. deLaski By: /s/ Richard J. Heaps
Name: Kenneth E. deLaski Name: Richard J. Heaps
Title: President Title: President
Date: March 29, 1993 Date: March 29, 1993
Sig 6
<PAGE> 12
EXHIBIT I
STAR SUPPORT SERVICES AGREEMENT
(ATTACHED HERETO)
Sig 7
<PAGE> 13
STRATEGIC TECHNICAL ACCOUNT REPRESENTATION ("STAR")
SUPPORT AGREEMENT
PREAMBLE: Gupta Corporation, ("Gupta") is engaged in the business of
designing, developing, marketing, licensing, and supporting computer software
programs and related user manuals, and ("Licensee") desires to subscribe to the
STAR Support program in accordance with the terms of this Agreement. Gupta
provides STAR Support, a special support applicable to Gupta's proprietary
software products, ("Programs") for which Licensee is licensed, and Licensee
desires to receive STAR Support Services in conjunction with previously
acquired Programs by Licensee and licensed for Licensee's use by Gupta.
1. STAR SUPPORT:
During the initial term of this Agreement, Licensee shall be eligible to
receive Gupta STAR Support Services as described in the STAR Support program
description current as of the date of execution of this Agreement, attached
hereto as Exhibit 1. During such initial term, Gupta may add additional
services to those listed in Exhibit I but may not delete any services or add
additional fees without the written consent of Licensee unless Licensee is in
default of its payment or other obligations to Gupta under this Agreement.
It is expressly understood that STAR Support Services are in addition to any
other support services which may be due Licensee from Gupta including, without
limitation, License Subscription Service ('LSS") as are commercially defined
and provided by Gupta to its other customers for the Programs. To the extent
that Licensee's eligibility to receive STAR Support Services is dependent on
Licensee maintaining such additional support services on the covered Programs,
Licensee expressly agrees to do so.
STAR Support Services as provided by Gupta hereunder shall only apply to those
Product license numbers previously and/or contemporaneously acquired by
Licensee from Gupta and/or Gupta's authorized resellers andlisted on the
signature page, ("STAR Supported Software").
2. RESPONSIBILITIES OF GUPTA:
Gupta agrees, during the initial term of this Agreement, to provide to Licensee
STAR Support Services as specified in Exhibit 1, subject to the following
understandings:
(i) All response times are targets. Gupta shall use its reasonable
efforts to adhere to these targets.
(ii) Gupta's obligations with respect to shipping Maintenance Releases to
the Programs shall be to provide such Maintenance Releases only for the STAR
Support Software listed on the signature page, as soon as reasonably possible
after such Maintenance Releases become available. This Agreement shall not be
construed to obligate Gupta to provide Maintenance Releases to Licensee on any
specific timetable.
(iii) Upon execution of this Agreement, Gupta shall designate on the
signature page the named representatives that may be required as part of
providing STAR Support Services to Licensee. Gupta may change the designated
technical representatives assigned to work with Licensee upon written notice to
Licensee.
1
<PAGE> 14
(iv) Nothing in this Agreement shall be construed to obligate Gupta to do any
specific development work on the Programs nor to change Gupta's general
maintenance and support policies with respect to the Programs.
3. SOFTWARE SUPPORT NOT COVERED BY THIS AGREEMENT:
Gupta has no obligation under this Agreement to support the following:
(i) Altered or modified STAR Supported Software;
(ii) Derivative works;
(iii) A combination of the STAR Supported Software and software not covered
by this Agreement;
(iv) Gupta will provide support services only for the most recent version
of the Programs, and will support the preceding version for no more than six
(6) months after a new Enhancement Release or Major Version of the Programs
becomes generally commercially available to Licensee. If Licensee does not
update Licensee's STAR Supported Software within that time, Gupta will have no
further obligation to provide STAR Support Services or other support services
for the Product(s).
(v) Errors or Program problems created by Licensee's negligence or fault;
(vi) Errors or Program problems resulting from hardware malfunction or by
malfunction in other software not provided by Gupta
4. LICENSEE'S RESPONSIBILITIES:
Questions concerning the adaptation or modification of the STAR Supported
Software are not covered by this Agreement. Licensee agrees to furnish
descriptions of malfunctions inthe form requested by the STAR Support Engineer.
Licensee also agrees to assist Gupta's efforts to duplicate any errors or
problems in the STAR Supported Software.
5. LICENSE AGREEMENT:
The Programs are licensed to Licensee under the terms and conditions of the
applicable Gupta Software License Agreement that accompanies the given Program
or has been separately executed by Gupta and Licensee. Nothing in this
Agreement shall affect Licensee's rights to use the given Program as defined in
such applicable Gupta Software License Agreement.
6. FORCE MAJEURE:
Neither party shall be liable for any delays in the performance of any of its
obligations hereunder due to causes beyond its reasonable control, including
but not limited to, fire, strike, war, riots, acts of any civil or military
authority, judicial action, acts of God, or other casualty or natural calamity.
7. LIMITATION OF LIABILITY:
GUPTA'S LIABILITY ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT
PAID BY LICENSEE TO GUPTA UNDER THE TERMS OF TIES AGREEMENT. IN NO EVENT
SHALL GUPTA BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE,
NOR WILL GUPTA BE LIABLE FOR SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, HOWEVER
CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR
NOT GUPTA HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES. THE ESSENTIAL
PURPOSE OF THIS SECTION IS TO LIMIT THE POTENTIAL LIABILITY OF GUPTA ARISING
OUT OF THIS AGREEMENT.
2
<PAGE> 15
8. PAYMENT:
Upon execution of this Agreement, Licensee will pay to Gupta a nonrefundable
payment for STAR Support Services as specified on the signature page. This sum
shall be paid to Gupta by Licensee upon receipt of Gupta's invoice. This
payment will be confirmed by Licensee with a purchase order (or equivalent
document) submitted by Licensee to Gupta, the terms and conditions of which
will not supercede this Agreement.
9. EXTRAORDINARY EXPENSES:
Gupta reserves the right to charge for unusual or excessive telephone,
shipping, handling, media or user manual expenses in connection with the STAR
Support to be provided hereunder. In all cases, Gupta shall notify Licensee of
these costs in advance.
10. TERM AND TERMINATION:
The initial term of this Agreement shall expire on the date specified on the
signature page, unless terminated earlier under the provisions of Section 11.
At the expiration of the initial term, this Agreement may be renewed for
additional one (1) year terms upon Licensee's agreement to the terms,
conditions, prices and scope of services applicable to STAR Support Services as
may be generally available from Gupta at that time.
Nothing in this Agreement shall obligate Gupta to (i) offer STAR Support
Services to Licensee beyond the initial term of this Agreement or, if offered
to Licensee for a renewal term, offer STAR Support Services at any set rate,
price or fee or (ii) include within the STAR Support Services any specific set
of services during such renewal term.
11. TERMINATION FOR BREACH:
This Agreement may be terminated at any timeon thirty (30) days written notice
by either party specifying a breach of the terms and conditions of this
Agreement, provided the other party does not cure the breach within that
period.
12. MISCELLANEOUS:
(i) Licensee may not assign this Agreement to a third party without the
prior written consent of Gupta.
(ii) This Agreement cannot be modified or amended unless a written
amendment or modification is executed by authorized representative of Gupta and
Licensee.
(iii) This Agreement supersedes all prior agreements, written or oral,
relating to the Gupta support of the Supported Software.
(iv) This Agreement shall be construed and enforced in accordance with the
laws of the State of California, U.S.A. and shall be subject to the exclusive
jurisdiction of the courts of the State of California.
3
<PAGE> 16
EXHIBIT 1
STAR SUPPORT SERVICES
(EFFECTIVE 6/1/92)
The following features are associated with Gupta's STAR Support Service:
- Two designated support contacts.
- Named Strategic Technical Account Representative ("STAR
Consultant") with designated backup.
- Target response time to telephone calls of 2 working hours maximum.
- 6:00 a.m. to 6:00 p.m. PST service on Monday - Friday (except
holidays)
- Access to Senior Technical Support through STAR Consultant.
- Defined escalation procedure.
- Monthly call tracking reports itemizing correspondence and bug
status ("STAR Reports")
- Monthly conference call review of customer activity and product
alerts ("STAR Review")
- Automatic shipment of product updates ("Maintenance Releases").
- Support license reconciliation to Licensee's fiscal year end date
or other calendar date.
- Advance product information.
- First right of refusal for participation in Gupta's beta program.
4
<PAGE> 17
STRATEGIC TECHNICAL ACCOUNT REPRESENTATION ("STAR")
SUPPORT AGREEMENT
(SIGNATURE PAGE)
1. LICENSEE: For purposes of this Agreement, Licensee shall be the
following organization at the designated address:
Organization Name: Deltek
Organized Under the laws of: Virginia
Headquarters Address: 8280 Greensboro Drive
Suite 300
McLean, VA 22102
Phone: (703) 734-8606 FAX: (703) 734-0346
-------------- --------------
2. EFFECTIVE DATE OF AGREEMENT: MARCH 31, 1993
3. TERMINATION DATE: MARCH 31, 1994
4. STAR SUPPORT SERVICES Fee: $ $12,500 (U.S. DOLLARS)
5. LICENSEE'S DESIGNATED STAR SUPPORT CONTACTS:
Name: Richard Darr Name: Dien Do
------------------- ----------------------------
Phone: 703/734-8606 ext 501 Phone: 703/734-8606 ext 420
-------------------- --------------------
FAX: 703/ 734-0346 FAX: 703/ 734-0346
------------- -----------------
6. STAR SUPPORTED SOFTWARE
(PLEASE LIST ):
GUPTA PROGRAM(S): GUPTA PROGRAM LICENSE NUMBERS:
------------------- ------------------------------
------------------- ------------------------------
5
<PAGE> 18
------------------- ------------------------------
------------------- ------------------------------
------------------- ------------------------------
------------------- ------------------------------
------------------- ------------------------------
------------------- ------------------------------
------------------- ------------------------------
Note: All STAR Supported Software must be covered under LSS.
7. OTHER TERMS:
(a) SECTION 3.(iv) OF THE STAR SUPPORT AGREEMENT IS DELETED AND REPLACED
AS FOLLOWS:
(iv) For purposes of this Agreement only, GUPTA agrees to support prior
versions of the Programs up to a maximum of one (1) calendar year after release
of a successor version of such Program. Such support services shall be charged
to Licensee at GUPTA's then current time and materials rate in effect. Terms
of payment shall be net thirty (30) days from receipt of GUPTA's invoice. If
Licensee does not update Licensee's STAR Supported Software within that time,
GUPTA will have no further obligation to provide STAR Support Services or other
support services for the Program(s).
IN WITNESS WHEREOF, the parties hereby confirm that this Agreement is effective
at the date set forth above and that all terms and conditions have been agreed
to:
LICENSEE: GUPTA:
By: /s/ Kenneth E. deLaski By: /s/ Richard J. Heaps
Name: Kenneth E. deLaski Name: Richard J. Heaps
Title: President Title: Vice President
Date: March 29, 1993 Date: March 29, 1993
6
<PAGE> 19
AMENDMENT NUMBER ONE
TO THE
OEM SOFTWARE LICENSE AGREEMENT
BETWEEN
GUPTA CORPORATION ("GUPTA")
AND
DELTEK ("OEM")
This Amendment Number One to the OEM Software License Agreement
effective March 29, 1993 ("Agreement"), is between Gupta Corporation ("GUPTA"),
a California Corporation with offices at 1060 Marsh Road, Menlo Park,
California and Deltek ("OEM"), a Virginia corporation with principal offices at
8280 Greensboro Drive, Suite 300, McLean, VA 22102.
WHEREAS GUPTA and OEM desire to add additional Programs via this
Amendment One ("Amendment").
NOW, THEREFORE, GUPTA and OEM agree, as follows:
1. CONFLICTS, USE OF TERMS: In the event of conflict between the terms
and conditions of the Agreement and the terms and conditions of this Amendment
the terms and conditions of this Amendment will hold. The headings used in
this Amendment are included for convenience only and are not to be used in
construing or interpreting the Amendment or the Agreement.
2. MODIFICATION OF ITEM 5 OF THE SIGNATURE PAGES ("PROGRAMS") OF THE
AGREEMENT. Upon execution of this Amendment, Item 5 of the Signature Pages of
the Agreement is modified by adding the following Programs:
SQLRouter/Oracle
SQLRouter/Sybase
SQLRouter/AS/400
SQLRouter/Informix
SQLRouter/Ingres
SQLBase Server for NetWare (50 Users)
3. REPLACEMENT OF SECTION 4.4 OF THE AGREEMENT. Upon the execution of
this Amendment, Section 4.4 of the Agreement is deleted and replaced with the
following:
4.4 Product Upgrades
Provided that OEM has paid the Support Fee as provided in Section 3.3
above, during the term of this Agreement periodic upgrades ("Product
Upgrades") to the Programs will be provided to OEM, such Product
Upgrades to include (i) Enhancement Releases and Major
1
<PAGE> 20
Versions of the Programs and (ii) versions of the Programs adapted to
run on additional operating system platforms if and when made
commercially available by GUPTA. Such Product Upgrades will be
provided to OEM contemporaneously with when GUPTA first makes such
Product Upgrades commercially available to its other customers for the
Programs. OEM shall have the right to sublicense and distribute (as
provided in Section 2.1 above) such Product Upgrades to its existing
customers for the OEM Products, subject to the payment of Product
Upgrade Fees as provided in Section 3.4 above.
4. NO FURTHER MODIFICATIONS: Other than as provided above in this
Amendment, all other provisions of the Agreement shall remain unchanged.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and effective as of the day and year first above written.
By: /s/ Eric F. Brown By: /s/ Richard J. Heaps
Name: Eric F. Brown Name: Eric F. Brown
Title: Vice President Title: Vice President
Date: 6/15/94 Date: 6/15/94
2
<PAGE> 21
AMENDMENT NUMBER TWO
TO THE
OEM SOFTWARE LICENSE AGREEMENT
BETWEEN
GUPTA CORPORATION ("GUPTA")
AND
DELTEK ("OEM")
This Amendment Number Two ("Amendment Number Two") to the OEM Software
License Agreement effective March 1, 1993 ("Agreement"), as amended June 15,
1994, ("Amendment Number One") is between Gupta Corporation ("GUPTA"), and
Deltek ("OEM").
WHEREAS GUPTA and OEM have agreed on terms, conditions and payments
whereby certain modifications are to be made to the Agreement.
NOW, THEREFORE, GUPTA and OEM agree by way of this Amendment Number
Two, ("Amendment Two"), as follows:
1. CONFLICTS, USE OF TERMS: In the event of conflict between the terms
and conditions of the Agreement, Amendment Number One and this Amendment Number
Two, the terms and conditions of this Amendment Number Two will hold. Where
applicable, the defined terms in the Agreement and shall have the same meaning
in this Amendment Number Two.
2. MODIFICATION OF ITEM 4 ("TERMINATION DATE") OF THE SIGNATURE PAGES OF
THE AGREEMENT. Upon execution of this Amendment Two, Item 4 of the Signature
Pages of the Agreement is modified by replacing the date "March 31, 1996 " by
"August 31, 1997."
3. MODIFICATION OF ITEM 5 ("PROGRAMS") OF THE SIGNATURE PAGES OF THE
AGREEMENT. Effective September 1, 1994, Item 5 SP of the Agreement is modified
by the addition of the following Programs.
SQLBASE SINGLE-TASKING ENGINE FOR WINDOWS
SQLBASE MULTI-TASKING ENGINE FOR WINDOWS
SQLCONSOLE
REPORT WINDOWS
(a) For purposes of calculating the License Fees due to GUPTA by OEM under
Item 7 of the Signature Pages of the Agreement, the Programs listed in Item 5
of the Signature Pages of the Agreement have been classified as follows:
(i) The SQLBase Programs for Sun UNIX, DOS, NetWare and OS/2 (all user
levels) are collectively referred to as "SQLBASE SERVER PROGRAMS"
1
<PAGE> 22
(ii) The SQLBase Single-Tasking and Multi-Tasking Engine for Windows
Programs are collectively referred to as "SQLBASE ENGINE PROGRAMS."
(ii) The SQLRouter/Oracle, AS/400, Informix, Sybase, and Ingres Programs
are collectively referred to as "SQLROUTER PROGRAMS."
4. PAYMENT TO GUPTA: Upon execution of this Amendment Two and in
consideration of GUPTA's agreement to Sections 2 and 3 of this Amendment Two,
OEM irrevocably agrees that the sum of [*] is immediately due and payable to
GUPTA and shall be paid to GUPTA net thirty (30) days from GUPTA's invoice date.
This sum shall serve as an additional noncontingent, nonrefundable advance (over
and above the initial payment of [*] specified in Item 6(a) of the Signature
Pages of the Agreement) against License Fees that may become due to GUPTA under
Section 3.2 of the Agreement.
5. REPLACEMENT OF ITEM 7 ("LICENSE FEES/DISCOUNT") OF THE SIGNATURE PAGES
OF THE AGREEMENT. Effective September 1, 1994, Item 7 of the Signature Pages
of the Agreement is deleted and replaced with the following:
(a) For each Copy of a Program distributed, sublicensed and/or shipped to a
customer by OEM under the terms of this Agreement, OEM agrees to pay GUPTA the
following License Fees:
(i) The License Fee for a single Copy of any of the SQLBase Server
Programs shall be [*]:
(aa) [*] or,
(bb) [*] for each PC workstation (i) on which such Copy of the
relevant SQLBase Server Program or component thereof is distributed,
sublicensed and/or shipped by OEM and/or (ii) any PC workstation that
is concurrently running the OEM Product and/or accessing such Copy of
the SQLBase Server Program, subject to the terms of this Agreement;
(ii) The License Fee for Copies of the SQLBase Engine Programs shall be [*];
(iii) The License Fee for Copies of the SQL Console Program shall be the
United States and Canada List Price [*];
(iv) The License Fees for Copies of the Report Windows Program shall be [*];
(v) For purposes of this Agreement only, the SQLRouter Programs are
licensed to OEM to be sublicensed to customers on a "per server" basis, i.e.,
each License for the SQLRouter Programs shall permit OEM or its sublicensees to
make an unlimited number of copies of the relevant SQLRouter Program provided
that such copies are used to connect to a single copy of the relevant database
server (i.e., running on a single computer) only. The License Fee for the
SQLRouter Programs shall
[*] IDENTIFIES REDACTED MATERIAL DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
2
<PAGE> 23
be [*].
(vi) For Copies of the Standard Products (as provided in Section 2.1(ii) of
this Agreement), the Territory List Price [*].
(vii) In the event that GUPTA is in default of its shipment obligations for
OEM's orders for such Standard Products as provided in Item 7(vi) above under
the rights granted to OEM under Section 2.1(ii) of this Agreement, for a period
in excess of thirty (30) days, then OEM shall have a limited right to
manufacture the Standard Products for the sole purpose of distribution as
provided under Section 2.1(ii) of this Agreement. OEM shall report to GUPTA
within ten (10) days of manufacture any copies it makes of the Standard
Products under this provision and the applicable License Fees for such Standard
Products shall be credited against OEM's outstanding prepayment balance with
GUPTA. OEM shall specify on its purchase order for the Standard Products the
country or territory to which such Standard Product is to be used by OEM.
OEM's right to manufacture copies of such Standard Products hereunder shall
terminate at the earlier of: (aa) the termination or expiration of this
Agreement; (bb) when GUPTA has demonstrated that it is able to meet its
shipment obligations hereunder at which time OEM shall notify GUPTA in writing
that such has occurred, or (ccc) when the applicable prepayments are exhausted.
(viii) To the extent that OEM's orders for the Standard Products are not
covered by a prepayment, or in the event that OEM wishes to acquire future
versions of such Standard Products (if and when such future versions become
commercially available from GUPTA), terms of payment for such orders shall be
net thirty (30) days from GUPTA's invoice date, subject to available credit
from GUPTA.
(ix) OEM's end-users shall be eligible to acquire support services for the
Standard Products under GUPTA's then current prices, terms and according to
GUPTA's Product Support Policy in effect at the time for the applicable country
or territory.
6. REPLACEMENT OF ITEM 8 ("OEM SUPPORT FEE") OF THE SIGNATURE PAGES OF THE
AGREEMENT. Effective September 1, 1994, Item 8 of the Signature Pages of the
Agreement is deleted and replaced with the following:
In consideration for the support services and maintenance provided by
GUPTA as specified in Section 4 of the Agreement, and for STAR Support
Services to be provided under GUPTA's STAR Support program (or the
equivalent GUPTA premium support program which may then be in effect),
OEM agrees to pay GUPTA follows:
Commencing September 30, 1994 and on the last day of each subsequent
calendar quarter thereafter during the term of this Agreement, OEM
agrees to pay GUPTA a quarterly support fee in advance equal to the
sum of (a) [*] of the cumulative License Fees for Standard Products
shipped by GUPTA to OEM and for the cumulative License Fees for the
Programs sublicensed by OEM (or distributed by OEM under Section 2.1
GTC) as of the end of that
[*] IDENTIFIES REDACTED MATERIAL DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
3
<PAGE> 24
previous calendar quarter, reduced by those License Fees paid by OEM
for customers of the OEM Product who are not receiving maintenance
support for the OEM Product from OEM plus (b) [*] of GUPTA's then
current fee for STAR Support Services.
In consideration for the above payment GUPTA will provide to OEM, the
Support and Maintenance services for the Programs and Standard
Products as specified in Section 4 GTC, plus updates and upgrades to
the Programs and Standard Products. Such upgrades will cover future
like-for-like releases (identical product, user capacity and operating
system) of the Programs and Standard Products that may become
available from GUPTA during the term of this Agreement.
Such STAR Support Services shall be provided by GUPTA consistent with
GUPTA's then-current published service features of the STAR Support
program which may be changed from time-to-time by GUPTA. A copy of
the features of the STAR Support program current as of the date of
this Agreement shall be provided to OEM upon OEM's request.
NOTE: of the date of execution of this Amendment Number 2 GUPTA's annual fee
for STAR Support Services is [*].
7. MODIFICATION OF ITEM 9 ("PRODUCT UPGRADES") OF THE SIGNATURE PAGES OF THE
AGREEMENT. Effective September 1, 1994, Item 9 of the Signature Pages of the
Agreement is deleted and replace with the following:
(a) The fees paid by OEM to GUPTA under Item 8 SP above shall cover any
Product Upgrade Fees due to GUPTA for Product Upgrades for Programs and
Standard Products on a like-for-like basis.
8. SECTION 1.8, ("STANDARD PRODUCTS") OF THE AGREEMENT IS DELETED IN ITS
ENTIRETY AND REPLACED WITH THE FOLLOWING: Effective September 1, 1994,
Section 1.8 of the Agreement is deleted and replaced with the following
1.8 "Standard Products"
Shall mean GUPTA's commercially available GUPTA proprietary PC
software program(s) in packaged form listed below:
Quest, Version 3.x
SQLWindows Network Edition, Version 5.x
SQLWindows Corporate Edition, Version 5.x
SQLConsole Version 1.x
Quest Reporter, Version 3.x
9. ADDITION OF ITEM 11(d) OF THE SIGNATURE PAGES OF THE AGREEMENT. Upon
the effective date
[*] IDENTIFIES REDACTED MATERIAL DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
4
<PAGE> 25
of this Amendment Number Two, Item 11(d) is added as follows:
(d) SQLBase Documentation
(i) OEM shall be eligible to acquire up to twenty (20) Copies of
the SQLBase documentation sets for OEM's internal use or distribution
at the then current United States and Canada List Price for such
documentation [*].
(ii) Terms of payment for any order for the SQLBase documentation
shall be net thirty (30) days from receipt of GUPTA's invoice.
Advance payments paid to GUPTA under Item 6(a) of the Signature Pages
above shall not be applicable against such purchases. OEM shall
specify on its purchase order for the SQLBase documentation the
country or territory to which such documentation is to be used by OEM.
10. ADDITION OF SECTION 2.1(iii) TO THE AGREEMENT: The following is added
as Section 2.1(iii) of the Agreement:
(iii) A personal, fully paid-up license to use, copy and distribute
the User Documentation for the Programs including all applicable
upgrades and updates to such documentation, provided that the
provision of such documentation is consistent with the limitations on
use of the Programs as provided in Sections 2.1 hereunder. OEM may
also acquire such User Documentation pursuant to this Agreement from
GUPTA at GUPTA's then-current price.
11. ROYALTY REPORT: Upon the effective date of this Amendment Number
Two, OEM agrees to provide to GUPTA an interim Report for the period commencing
July 1, 1994 through August 31, 1994.
12. TIME IS OF THE ESSENCE: This Amendment Number Two is null and void
unless executed no later than August 31, 1994.
13. NO ADDITIONAL MODIFICATIONS: Except as provided above, the terms and
conditions of the Agreement remain unchanged.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed
and effective as August 31, 1994.
OEM: GUPTA CORPORATION
By: /s/ Alan R. Stewart By: /s/ Richard J. Heaps
Name: Alan R. Stewart Name: Alan R. Stewart
Title: Chief Financial Officer Title: Vice President
Date: August 31, 1994 Date: August 31, 1994
[*] IDENTIFIES REDACTED MATERIAL DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
5
<PAGE> 26
AMENDMENT NUMBER THREE
TO THE
OEM SOFTWARE LICENSE AGREEMENT
BETWEEN
CENTURA SOFTWARE CORPORATION ("CENTURA")
AND
DELTEK ("OEM")
WHEREAS CENTURA and OEM have entered into an OEM Software License
Agreement with an Effective Date of March 1, 1993 ("Agreement") and as amended
June 15, 1994 ("Amendment Number One"), and as amended August 31, 1994
("Amendment Number Two") is between Centura Software Corporation, ("CENTURA")
and Deltek, ("OEM").
WHEREAS CENTURA and OEM have agreed to amend the terms and conditions
of the Agreement with respect to an additional prepayment, additional Standard
Products and License Fees via this Amendment Number Three ("Amendment');
NOW, THEREFORE, CENTURA and OEM agree as follows:
1. CONFLICTS, USE OF TERMS: In the event of conflict between the terms
and conditions of the Agreement, as previously amended, and this Amendment, the
terms and conditions of this Amendment shall take precedence. Where
applicable, the defined terms in the Agreement shall have the same meaning in
this Amendment.
2. CHANGE OF NAME: OEM hereby acknowledges that Gupta Corporation is in
the process of changing its name to and is now operating under the name of
Centura Software Corporation. At all times the term "CENTURA" or "Gupta" as
found in the Agreement and as modified by this Amendment shall be taken to
refer to Centura Software Corporation.
3. PAYMENT: Upon execution of this Amendment, and in consideration for
CENTURA's agreement to Sections 4, 5, 6, 7 and 8 below, OEM irrevocably agrees
to pay CENTURA the nonrefundable, noncontingent payment of [*] [over and above
the previous advances paid to CENTURA under the Agreement]. Such sum to serve
as a noncontingent, nonrefundable advance against License Fees and OEM Support
Fees that may become due to CENTURA under the Agreement. This sum shall be
immediately due and payable to CENTURA and shall be paid by OEM in three (3)
installments as follows:
(i) [*] on or before [*] and;
(ii) [*] on or before [*] and;
(iii) [*] on or before [*]
4. MODIFICATION OF SECTION 1.8, ("STANDARD PRODUCTS") OF THE AGREEMENT.
Effective July 1,
[*] IDENTIFIES REDACTED MATERIAL DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
1
<PAGE> 27
1996, Section 1.8 of the Agreement shall be modified to add the following
Standard Products:
Centura Team Developer
Centura Ranger
5. MODIFICATION OF ITEM 4 ("TERMINATION DATE") OF THE SIGNATURE PAGES OF
THE AGREEMENT: Upon the execution of this Amendment, Item 4 of the Signature
Pages of the Agreement shall be modified by deleting "August 31, 1997" and
replacing with "December 31, 1999."
6. REPLACEMENT OF ITEM 7(vi) OF THE SIGNATURE PAGES OF THE AGREEMENT.
Effective July 1, 1996, Item 7(vi) of the of the Signature Pages of the
Agreement is deleted and replaced with the following:
(vi) Excluding the SQLWindows Standard Products, for orders of
copies of the Standard Products, OEM shall pay to CENTURA the
Territory List Price less a discount of [*] and for copies of the
SQLWindows Standard Products, OEM shall pay to CENTURA the Territory
List Price less a discount of [*]
7. REPLACEMENT OF ITEM 8, ("OEM SUPPORT FEE") OF THE SIGNATURE PAGES OF
THE AGREEMENT. Effective June 30, 1996, Item 8 of the of the Signature Pages of
the Agreement is deleted and replaced with the following:
In consideration for the support services and maintenance provided by
CENTURA as specified in Section 4 of the Agreement, and for Gold
Support Services to be provided under CENTURA's Gold Support program
(or the equivalent CENTURA premium support program which may then be
in effect), OEM agrees to pay CENTURA follows:
Commencing June 30, 1996 and on the last day of each subsequent
calendar quarter thereafter during the term of this Agreement, OEM
agrees to pay CENTURA a quarterly support fee in advance equal to the
sum of (a) [*] of the cumulative License Fees for Standard Products
shipped by CENTURA to OEM and for the cumulative License Fees for the
Programs sublicensed by OEM (or distributed by OEM under Section 2.1
GTC) as of the end of that previous calendar quarter, reduced by those
License Fees paid by OEM for customers of the OEM Product who are not
receiving maintenance support for the OEM Product from OEM plus (b)
[*] of CENTURA's then current fee for Gold Support Services.
Such Gold Support Services shall be provided by CENTURA consistent
with CENTURA's then-current published service features of the Gold
Support program which may be changed from time-to-time by CENTURA.
8. REPLACEMENT OF ITEM 9 ("PRODUCT UPGRADE FEES") OF THE SIGNATURE PAGES
OF THE AGREEMENT. Effective June 30, 1996, Item 9 of the Signature Pages of
the Agreement is deleted and replace with the following:
[*] IDENTIFIES REDACTED MATERIAL DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
2
<PAGE> 28
9. PRODUCT UPGRADE FEES: For each Copy of a Product Upgrade of
the Programs and/or Standard Products (as specified in Section 4.4 of
the Agreement) sublicensed, distributed and/or shipped by OEM to its
existing customers for the OEM Product as provided under Item 7 above,
OEM shall pay to CENTURA a Product Upgrade Fee equal to CENTURA's
generally published Territory List Price for the Product Upgrade of
such Program or Standard Product less a discount equal to OEM's
applicable Discount for the underlying Program or Standard Product.
Provided, however, that OEM's Product Upgrade Fee on any given
calendar year shall be [*] of the cumulative License Fees for Programs
sublicensed, distributed and/or shipped by OEM and Standard Products
acquired by OEM as of the end of that calendar year.
9. SQLWINDOWS 5 TO CENTURA MIGRATION: CENTURA agrees that the migration
fee of [*] for the migration of OEM's existing SQLWindows Corporate Edition
Standard Product licenses to Centura Team Developer licenses shall be available
to OEM through September 30, 1996.
10. NO OTHER MODIFICATION: Other than as provided in this Amendment
above, the terms and conditions of the Agreement, as previously amended, remain
unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed
and effective as of: June 19, 1996.
<TABLE>
<S> <C>
OEM: CENTURA SOFTWARE CORPORATION:
By: /s/ Alan R. Stewart By: /s/ Richard J. Heaps
Name: Alan R. Stewart Name: Richard J. Heaps
Title: Chief Financial Officer Counsel Title: Sr. Vice President & General
Date: June 19, 1996 Date: June 19, 1996
</TABLE>
[*] IDENTIFIES REDACTED MATERIAL DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
3
<PAGE> 1
EXHIBIT 10.6
COGNOS DESKTOP OEM AGREEMENT
- --------------------------------------------------------------------------------
This Agreement, effective the 28th day of February, 1994, (the "Effective
Date") between:
COGNOS CORPORATION
a Delaware corporation located at
67 South Bedford Street
Burlington, Massachusetts
01803-5164
(on behalf of itself and its subsidiaries and affiliates)
Jack Thomas (617) 229-6600
--------------------------
CONTACT PERSON/TELEPHONE
(herein referred to as "COGNOS")
- and -
DELTEK SYSTEMS. INC.
8280 Greensboro Drive
Suite 300
McLean, VA 22101
Ken deLaski (703) 734-8606
--------------------------
CONTACT PERSON/TELEPHONE
(herein referred to as "OEM")
[*] IDENTIFIES REDACTED MATERIAL DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
<PAGE> 2
1.0 DEFINITIONS
For the purpose of this Agreement, the following words are defined terms:
1.1 "Software" means that version of the information processing
program(s), ("Programs") in object code or binary form only, stored on
some medium, and Related Documentation(as hereinafter defined),
developed or marketed by COGNOS under the trade names set out in
Schedule A subject to the restrictions also set out in Schedule A.
1.2 "Related Documentation" shall mean the user manuals,
documentation normally included in the sealed package on delivery of
the Software and source code documentation as described in Schedule A.
1.3 "OEM Product" shall mean one of the OEM's software products
described in Schedule A.
1.4 "Shrink Wrap License" means that document included in the
sealed package on delivery of the Software authorizing an end user to
use the Program and Related Documentation.
2.0 GRANT OF DISTRIBUTION RIGHTS
2.1 COGNOS hereby grants to OEM during the term of this Agreement,
and OEM hereby accepts, subject to the terms and conditions contained
in this Agreement, a non-exclusive, non-transferable right in the
Territory to (a) copy and manufacture the Software, or parts thereof,
only when incorporated into an OEM Product; and (b) market, demonstrate
and distribute the Software as part of the OEM Product to end user
customers for use on computers located in the Territory; and (c)
sublicense end user customers the right to use the Software as part of
the OEM product. Nothing herein shall prevent end user customers from
accessing third party software with the Software, provided the
Software is incorporated into an OEM product and further provided that
the source of data is restricted to the application server on which
the OEM product resides.
2.2 OEM shall have the right to make sufficient royalty-free
copies of the Software for internal development, testing and
demonstration purposes only.
2.3 For greater certainty, OEM shall not be entitled to use the
license granted above except as incorporated into an OEM Product.
2 of 13
<PAGE> 3
2.4 For the protection of COGNOS, the OEM shall license the OEM
Product to end users subject to terms and conditions of similar effect
to those in the Shrink Wrap License.
2.5 COGNOS shall use its best effort to remove the name COGNOS or
any trade name or trade mark associated with the Software from the
Software when incorporated into an OEM Product so that the fact that
the Software is incorporated into the OEM Product is not apparent to
an end user. OEM shall have the right to use a mark or logo
authorized by COGNOS, indicating that OEM is an OEM partner of COGNOS.
3.0 OEM'S OBLIGATIONS
3.1 OEM shall use its best efforts to market, demonstrate and
distribute the Software as part of the OEM Product to customers in the
Territory.
3.2 OEM shall not make any reference or claim about COGNOS or the
Software except as set out in COGNOS's current sales literature.
3.3 OEM shall provide its customers with Level 1 technical
support for the Software as described in Schedule C.
3.4 OEM shall provide COGNOS, within thirty (30) days of
execution of this Agreement and each renewal hereof, a business
summary statement respecting the future marketing and distribution
efforts contemplated by the OEM. OEM shall provide COGNOS with a
written monthly sales report, on or before the twentieth (20th)
business day of any month specifying: (i) for each OEM Product
licensed during the previous month: customer name, address and number
of copies licensed and royalties owed COGNOS; and (ii) payment for any
fees that may be due COGNOS.
4.0 COGNOS'S OBLIGATIONS
4.1 COGNOS shall deliver to OEM a master disk for the Software,
the Related Documentation and source code from which OEM may modify
and copy the Software as permitted pursuant to this Agreement. COGNOS
shall use its best effort to ensure that the Software is compatible
with the environment in which it is designed to operate.
4.2 COGNOS shall integrate OEM's logo into the Software so that
it will be displayed at initial program load. OEM shall provide its
logo to COGNOS in a BMP format with such compatibility as COGNOS may
require.
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<PAGE> 4
4.3 COGNOS shall provide training in the operation and use of the
Software to OEM's staff at a Cognos office as set forth in Schedule B.
Travel and living expenses of OEM staff shall be borne and paid by OEM.
4.4 COGNOS shall make available to OEM, for the benefit of
subscribing end-users, Level 2 maintenance and upgrade options to the
OEM as described in Schedule C.
5.0 LICENSE FEES AND CHARGES
5.1 OEM shall pay to COGNOS the fees set out in Schedule B.
5.2 All sales and other taxes relating to a Software order,
including those levied by federal, state, municipal or other
governmental authority, shall be paid by OEM.
5.3 All monies are due and payable under this Agreement by OEM as
set forth in Section 3.4 and Schedule B. OEM shall pay interest on
accounts overdue by more than thirty (30) days at a rate of one and
one half percent (1.5%) per month (18% annually) or the maximum legal
interest rate, whichever is less.
5.4 COGNOS may change the terms of payment if OEM's previous
payment record shows that OEM is consistently in arrears by sixty (60)
days or more. OEM will be advised in writing of any change in the
payment terms.
6.0 ACKNOWLEDGMENT OF COGNOS OWNERSHIP RIGHTS
6.1 OEM acknowledges that the Programs contain confidential and
proprietary information and trade secrets belonging to COGNOS and its
licensors, and that title and ownership rights to the Programs shall
remain exclusively with COGNOS and its licensors. OEM's rights to the
Software are strictly limited to those specifically granted in this
Agreement. In particular, OEM shall not reverse compile the
Software.
7.0 CONFIDENTIAL INFORMATION
7.1 In order for OEM and COGNOS to effectively carry out their
respective obligations hereunder, each may from time to time disclose
to the other confidential information relating to its business and
affairs ("Confidential Information"). Neither party shall disclose
Confidential Information of the other to any third party without the
express written consent of the other party, and not make use of any
Confidential Information other than in the performance of this
Agreement. Each party shall use at least the same degree of care to
avoid disclosure of Confidential Information as it uses with respect
to its own Confidential
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<PAGE> 5
Information. Each party acknowledges a relationship of trust and
confidence with respect to the Confidential Information of the other.
7.2 Confidential Information shall be clearly designated in
writing as confidential, or if verbally disclosed, identified as being
confidential. Confidential Information does not include:
(a) information generally available to or known to the public;
(b) information previously known to the recipient;
(c) information independently developed by the recipient outside
the scope of this Agreement; or
(d) information lawfully disclosed by a third party.
7.3 The Software and the provisions of this Agreement are
"Confidential Information".
8.0 WARRANTY
8.1 EXCEPT TO THE EXTENT SET OUT IN THE SHRINK-WRAP LICENSE, THE
SOFTWARE IS NOT WARRANTED TO OEM OR END USER CUSTOMERS IN ANY WAY.
COGNOS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH
RESPECT TO THE SOFTWARE, INCLUDING BUT NOT LIMITED TO, THOSE OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8.2 COGNOS agrees to provide OEM with the support and maintenance
services set forth in Schedule C.
9.0 LIMITATION OF LIABILITY
9.1 Neither party shall be liable or deemed to be in default for
any delay or failure to perform its obligations hereunder if such
failure results directly or indirectly from any cause beyond its
reasonable control.
9.2 COGNOS SHALL IN NO EVENT BE LIABLE TO OEM FOR LOSS OF PROFITS,
OR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES,
INCLUDING COSTS OR LEGAL EXPENSES, IN CONNECTION WITH THE SUPPLY, USE
OR PERFORMANCE OF THE SOFTWARE.
9.3 COGNOS'S TOTAL LIABILITY TO OEM FOR ANY CLAIM FOR DAMAGES
UNDER THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT
EXCEED THE SUM OF TWENTY THOUSAND DOLLARS ($20,000).
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<PAGE> 6
10.0 INDEMNITY
10.1 OEM shall indemnify and hold COGNOS harmless from and against
any claims or actions ("claims") made by any third party arising from
any damages, costs, or losses arising from the performance of the OEM
Product except claims directly arising from the performance of the
Software.
11.0 TERM AND TERMINATION
11.1 The term of this Agreement shall commence on the Effective
Date and shall continue in force until midnight on the fifth (5th)
anniversary of the Effective Date. Thereafter, this Agreement shall be
automatically renewed for additional one (1) year terms. During any
renewal term either party may terminate this agreement by giving
thirty (30) days written notice.
11.2 Either party ("Terminating Party") may immediately terminate
this Agreement or suspend any rights granted under it on notice to the
other, if the other party ("Defaulting Party"):
(a) breaches any material term of this Agreement;
(b) merges or becomes amalgamated with another firm, person or
corporation which the Terminating Party, in its sole opinion,
deems to be a competitor;
(c) fails to perform any obligation under this Agreement within
fifteen (15) days after notice from the Terminating Party; or
(d) ceases to conduct business in a normal course, becomes
insolvent or is declared bankrupt.
11.3 On expiration or termination, each party shall promptly remit
to the other all unpaid monies due under this Agreement. OEM shall
either return to COGNOS or destroy all copies of the Software in its
possession and provide a certificate from an officer of OEM to that
effect.
11.4 The obligations set forth in Sections 2.0 and 7.0 shall
survive expiration or termination of this Agreement.
12.0 AUDIT RIGHTS
12.1 OEM grants COGNOS the right, which COGNOS will exercise
reasonably and at its own expense, to enter OEM's premises during
business hours on forty-eight (48) hours notice for the purpose of
examining OEM's relevant books and records or to have such books and
records examined by its certified public accountant to verify the
locations and
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<PAGE> 7
hardware into which copies of the Software have been installed by OEM
as well as OEM's fulfillment of its obligations set forth herein.
13.0 NOTICE
13.1 Any notices, requests or demands shall be in writing and
delivered or mailed to the other party at the address written on the
front page of this Agreement. Each party shall promptly give written
notice of any change in its address or addressee. All notices shall
be sent either by registered or certified mail, postage prepaid, or by
facsimile transmission with answerback. Notices shall be deemed to be
received on the fifth (5th) business day after mailing, or if given by
facsimile transmission, upon transmission. In the case of a mail
interruption such notices, requests or demands shall be delivered by
prepaid courier delivery or facsimile transmission with answerback.
14.0 GENERAL PROVISIONS
14.1 The Schedules to this Agreement are incorporated into and
form part of this Agreement.
14.2 OEM is an independent contractor and the parties are not
agents or legal representatives of each other and have no power of
attorney to represent, act for, bind or commit each other except as
described in this Agreement. Neither execution nor performance of
this Agreement shall be construed to have established any joint
venture or partnership between COGNOS and OEM.
14.3 No delay or failure in exercising any right hereunder and no
partial or single exercise thereof shall be deemed to constitute a
waiver of such right or any other rights hereunder. No consent to a
breach of any express or implied term of this Agreement shall
constitute a consent to any subsequent breach.
14.4 If any provision of this Agreement is not enforceable, the
remainder of this Agreement shall remain in full force and effect.
14.5 OEM shall not assign all or any portion of its rights under
this Agreement without the prior written consent of COGNOS.
14.6 All covenants, agreements and conditions of this Agreement
shall be binding upon and enure to the benefit of both parties and
their representatives.
14.7 This Agreement and any matters relating thereto shall be
governed, construed and interpreted in accordance with the laws of the
Commonwealth of Massachusetts.
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<PAGE> 8
14.8 This Agreement constitutes the full and entire understanding
and agreement between OEM and COGNOS with respect to the marketing,
demonstration and distribution of the Software and supersedes all
negotiations, commitments and understandings, both verbal and written,
with respect thereto. No modifications, additions, or amendments to
the terms of this Agreement shall be effective unless in writing and
signed by the duly authorized representatives of OEM and COGNOS.
AS WITNESS the parties have duly executed this Agreement.
DELTEK SYSTEMS, INC. COGNOS INCORPORATED
/s/ Alan R. Stewart /s/ John B. Thomas
- ------------------------- ---------------------------
Signature Signature
Alan R. Stewart
- ------------------------- ---------------------------
Printed Name Printed Name
Chief Financial Officer
- ------------------------- ---------------------------
Title Title
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<PAGE> 9
SCHEDULE A
A. SOFTWARE AND TERRITORY
SOFTWARE
PowerPlay Administrator
PowerPlay Enterprise
Impromptu Administrator
Impromptu Enterprise
PowerPlay Host
TERRITORY
United States
OEM PRODUCT
Deltek Software Series Version 1 & 2
B. RELATED DOCUMENTATION:
PowerPlay:
Viewer online file,
Reporter online file,
User reference file.
Impromptu:
Enterprise Editor help file,
Enterprise Editor Getting Started file,
Enterprise Editor User's Guide file.
Related Documentation will be provided to OEM electronically, in RTF format.
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<PAGE> 10
SCHEDULE B
PAYMENT TERMS
PROGRAM AND LICENSE FEES
1. OEM shall pay COGNOS a program fee of [*] within thirty (30) days of the
Effective Date. This fee is in respect of the following: (a) 8 Days
Training, (b) embedding OEM's Logo, (c) master diskettes for duplication
of the Software, and (d) Provision of related documentation on RTF
electronic format.
2. SEE ADDENDUM 1; and (b) for the PowerPlay item of Software incorporated
into the EIS Module of the OEM Product, the license fee shall be equal to
the per user fees set forth below:
NUMBER OF USERS LICENSE FEE (PER USER)
--------------- ----------------------
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
The current published list price for the OEM Product is attached as Schedule
B-1. OEM may change its published per user list price for the OEM Product on
thirty (30) days written notice to COGNOS. Notwithstanding anything to the
contrary above, in no event will the License Fee for each copy of the Impromptu
item of Software incorporated into the Report Writer Module be [*] .
[*] IDENTIFIES REDACTED MATERIAL DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
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<PAGE> 11
ADDENDUM 1
2. OEM shall pay COGNOS a license fee ("License Fee") as follows:
(a) For the Impromptu item of Software incorporated into the Report Writer
Module of the OEM Product, the License Fee due to COGNOS shall be equal
to [*] of the price of the Report Writer Module.
The price Deltek charges for its Report Writer Module shall be
equal to [*] of the then-current published per user list price for the OEM
product. The number of Report Writer Module users shall be deemed to be
equal to the number of users purchased for the OEM product except when a
license over [*] users is sold.
When Deltek sells its OEM product with a license in excess of [*]
users, in addition to the normal License Fee for a 20 user license, Deltek
will pay to COGNOS an additional license fee of [*] of Deltek's Report
Writer Module revenue that exceeds the list price of a twenty user license
or (b), [*] for each licensed user of the Report Writer module over [*]
users.
At anytime [*] from the date of this agreement, Deltek at its
option, may elect to pay to COGNOS a license fee of [*] of the
then-current published per user list price for the Report Writer Module.
In the event this election is made, the number of Report Writer Module
users does not need to be equal to the number of users purchased for the
OEM product. Deltek shall notify COGNOS in writing if this election is
made.
2/28/94
[*] IDENTIFIES REDACTED MATERIAL DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
<PAGE> 12
Upon execution of this Agreement, OEM shall pay COGNOS [*] as a
non-refundable prepayment against which License Fees due and payable shall
be credited as follows: [*] upon execution of this Agreement; [*] within
forty-five (45) days of the Effective Date of this Agreement, and [*]
within ninety (90) days of the Effective Date of the Agreement
SUPPORT AND MAINTENANCE FEES
In respect of the provision of Level 2 services by COGNOS to an end user,
OEM shall pay COGNOS an annual fee equal to [*] subject to the fee
adjustment described below. This amount shall not be credited to the
prepayment of the License Fee. OEM shall pay COGNOS the support and
maintenance fee quarterly beginning ninety (90) days from the date of
delivery of the OEM Product to end user customers.
UPGRADE FEE
In respect of the provision of upgrades to the Software for each end user,
OEM shall pay COGNOS an annual fee equal to [*] subject to the fee
adjustment described below. This amount shall not be credited to the
prepayment of the License Fee. OEM shall pay COGNOS the upgrade fee
quarterly beginning ninety (90) days from the date of delivery of the OEM
Product to end user customers.
FEE ADJUSTMENT
The Maintenance Fee and the Upgrade Fee shall be increased on each
anniversary of the Effective Date by an amount equal to [*] of the fee for
the immediately preceding year.
TRAINING PROGRAM
OEM can contract with COGNOS for the right-to-copy our training classes
for the purpose of training it's customers:
Impromptu User Class $[*]
PowerPlay User Class $[*]
These prices are good until December 31, 1994.
TRAINING AND CONSULTING
Additional Training and Consulting will be offered to OEM at a fee of
[*] per day. This price is good until December 31, 1994.
[*] IDENTIFIES REDACTED MATERIAL DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
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<PAGE> 13
SCHEDULE B-1
OEM PRODUCT
PUBLISHED LIST PRICE
<TABLE>
<CAPTION>
NUMBER OF USERS PUBLISHED LIST PRICE
--------------- --------------------
<S> <C>
[*] [*]
</TABLE>
POWERPLAY HOST: OEM shall pay COGNOS a fee for each copy of the Software
sublicensed by OEM. OEM fee for PowerPlay Host shall be determined by
[*] from the then current local list price for the Software.
[*] IDENTIFIES REDACTED MATERIAL DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
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<PAGE> 14
SCHEDULE C
SUPPORT AND MAINTENANCE AND UPGRADES
1. SUPPORT AND MAINTENANCE
COGNOS agrees to provide OEM with the following support and maintenance
services.
Level I - Telephone technical support for OEM end users providing
advice on usage and installation of Software. OEM personnel
shall collect end user diagnostics as requested by COGNOS.
Level 2 - A maintenance plan provided by COGNOS consisting of:
Telephone technical support for OEM personnel providing
advice on Software functionality and debugging and
troubleshooting in accord with COGNOS current policies. OEM
customers will participate in this plan by paying the
Maintenance Fee set out in Schedule B.
Level 2 services shall be provided to OEM and its end user
customers free of charge for ninety (90) days from the date
of delivery of the OEM product to the end user customers.
Thereafter the fees for Level 2 services shall be as set
forth in Schedule B.
2. UPGRADES:
OEM may subscribe end users for upgrades to the Software. The service
will consist of the provision of new versions of the Software and Related
Documentation when issued. OEM shall pay the Upgrade Fee set out in
Schedule B for upgrade services to each end user. If OEM pays the
Upgrade Fee set out in Schedule B for upgrade services to each end user
customer, Impromptu 3.0 will be provided to OEM's end user customers at
no charge.
3. FUTURE RELEASES:
With respect to the Impromptu item of Software, (versions 2.0D and 3.0)
COGNOS agrees to include Gupta SQLBASE support within ninety (90) days of
the Effective Date of this Agreement. With respect to the Impromptu item
of Software (version 3.0), COGNOS agrees to include the following
functionality: crosstab support, frame-based reporting and OLE 2.0
support.
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<PAGE> 15
AMENDMENT TO
COGNOS DESKTOP OEM AGREEMENT
This Amendment (the "Amendment") is effective this 28th of November,
1995, (the "Effective Date") and is made a part of the Cognos Desktop OEM
Agreement between COGNOS CORPORATION ("Cognos") and DELTEK SYSTEMS, INC.
("OEM') dated February 28, 1994 (the "Agreement").
1. DEFINITIONS. All capitalized terms not otherwise defined in this
Amendment shall have the same meanings as set forth in the Agreement.
2. GRANT OF DISTRIBUTION RIGHTS. Notwithstanding anything to the
contrary in Section 2.1 of the Agreement, OEM may distribute the Software to
customers in the Territory for use by such customers' subsidiaries, affiliates
or joint ventures outside the Territory (but not in any country where
distribution of the Software is prohibited by U.S. laws or regulations). OEM
shall be responsible for complying with all applicable export laws and
regulations when transferring the Software outside the Territory.
3. NO OTHER CHANGES. Except as expressly modified by this Amendment, the
terms and conditions set forth in the Agreement shall remain in full force and
effect.
COGNOS INCORPORATED DELTEK SYSTEMS, INC.
By: /s/ John B. Thomas By: /s/ Alan R. Stewart
Name: John B. Thomas Name: Alan R. Stewart
Title: V.P. Partner Channels Title: Chief Financial Officer
<PAGE> 16
[COGNOS LETTERHEAD]
May 24, 1995
Mr. Alan Stewart
Chief Financial Officer
Deltek Systems, Inc.
8280 Greensboro Drive
McLean, VA 22101
Dear Mr. Stewart:
This letter is to confirm our agreement regarding the [*] payment by
Deltek Systems, Inc. ("Deltek") to Cognos Corporation ("Cognos") which Cognos
will invoice upon execution of this letter, payable net 60 days.
This [*] shall be a non-refundable payment against future license & support
fees due Cognos under the Cognos Desktop OEM Agreement between Cognos and
Deltek dated February 28th, 1994 ("Agreement"). The Agreement shall be further
amended upon execution of this letter in the following manner:
The license & support fees set forth in the Agreement will be further
discounted by [*] for the period commencing May 1st, 1995 and ending the
later of:
a) The date upon which Deltek net license & support fees due Cognos exceed
[*]; or
b) February 28, 1996
If you are in agreement with the foregoing, please sign the duplicate copy of
this letter in the space provided below and return one copy to me for our files
by May 30th, 1995. Thank-you.
Sincerely,
/s/ DANA HIGLEY
----------------------------
Dana Highley
OEM Partner Manager
Accepted and Agreed to:
/s/ ALAN STEWART Date: May 24, 1995
- --------------------------- -------------
Alan Stewart
Chief Financial Officer
Deltek Systems, Inc.
[*] IDENTIFIES REDACTED MATERIAL DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
<PAGE> 17
[COGNOS LETTERHEAD]
November 27, 1995
Mr. Alan Stewart
Chief Financial Officer
Deltek Systems, Inc.
8280 Greensboro Drive
McLean, VA 22101
Dear Mr. Stewart:
This letter is to confirm our agreement regarding the [*] payment by
Deltek Systems, Inc. ("Deltek") to Cognos Corporation ("Cognos") which Cognos
will invoice upon execution of this letter, payable [*] net 60 days and
[*] net 180 days.
The [*] shall be a non-refundable payment against future license &
support fees due Cognos under the Cognos Desktop OEM Agreement between Cognos
and Deltek dated February 28th, 1994 ("Agreement"). The Agreement shall be
further amended upon execution of this letter in the following manner:
The license & support fees set forth in the Agreement will be further
discounted by [*] for the period commencing [*] and ending the later of:
a) The date upon which Deltek net license & support fees due Cognos exceed
[*] or
b) [*]
and
The support and upgrade fees due Cognos, as set forth in the Agreement for the
period August 1994 through September 1995 shall be credited to Deltek Systems
for no additional charge.
If you are in agreement with the foregoing, please sign the duplicate copy of
this letter in the space provided below and return one copy to me for our files
by Nov. 30th, 1995. Thank you.
Sincerely,
/s/ Dana Higley
-------------------
Dana Higley
OEM Partner Manager
Accepted and Agreed to:
/s/ Alan M. Stewart Date: November 30, 1995
- --------------------------- ---------------------------
Alan Stewart
Chief Financial Officer
Deltek Systems, Inc.
[*] IDENTIFIES REDACTED MATERIAL DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
<PAGE> 18
[DELTEK SYSTEMS LOGO]
November 30, 1995
Mr. Dana Higley
OEM Partner Manager
COGNOS CORPORATION
4770 Duke Drive, Suite 201
Mason, Ohio 45040
Subject: Amendment to OEM Agreement
This letter clarifies our agreement of the method and application for
recording the software maintenance, support and upgrade fees on a monthly
basis.
Cognos has agreed to apply a prepayment of [*] for the
contractual obligation of an additional [*] as specified in the letter of
November 27, 1995. Effective on January 1, 1996, Deltek will be obligated to
Cognos 90 days after a shipment for a maintenance, support, and upgrade fee
based on the royalty reported for that period, calculated as follows:
A) The monthly royalty fee less a [*] discount (with the fee due 90
days after that shipment)
B) Times a [*] fee for maintenance/support/upgrades
C) With this fee divided by one twelfth for that months additional fee,
thereby spreading any annual fee over the twelve months earned
D) Refer to the attached schedule for the computation and application
of this method for the maintenance/support/upgrade fees due for the
period ending December 31, 1995.
Based upon this agreement, Deltek will report a charge in the December
1995 royalty report due January 20, 1996 of [*], which represents [*]
for maintenance fees and [*] for upgrade fees for the period from August
1994 through December 31, 1995.
Please return a signed copy to my attention, my number is (703)
734-8606, 491.
Sincerely,
/s/ Alan R. Stewart
Alan R. Stewart
Chief Financial Officer
Deltek Systems, Inc.
Accepted and agreed to by COGNOS CORPORATION:
/s/ Dana Higley
- ---------------------
Date: 12-4-95
---------------
[*] IDENTIFIES REDACTED MATERIAL DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
<PAGE> 19
[COGNOS LETTERHEAD]
July 26, 1996
Mr. Alan Stewart
Chief Financial Officer
Deltek Systems, Inc.
8280 Greensboro Drive
McLean, Virginia 22102-3841
Dear Alan:
The purpose of this letter is to propose an amendment to our OEM agreement
dated February 28, 1994. Cognos would like to offer Deltek a standard per seat
rate for both CP Scope and CP Reports. The proposed royalty license fee due is:
- - [*] for PowerPlay (both Windows and Macintosh versions, as available)
- - [*] for Impromptu.
The above changes in royalty license fee is effective July 1, 1996.
Other changes to the contract would include the expansion of the territory
internationally with a specified [*] international uplift on the proposed
royalties above, the inclusion of future products (PowerPlay Server, Impromptu
Server, etc.) at a [*] discount on standard list price, and the extension
of the contract expiration date for an additional year.
As part of this proposal, Deltek would agree to a non-refundable payment
against future license & support fees due Cognos in the amount of [*]. This
pre-payment will be due in quarterly installments according to the following
schedule:
- - [*] due on or before [*]
- - [*] due on or before [*]
If you are in agreement with the foregoing, please sign the duplicate copy of
this letter in the space provided below and return one copy to me for our
files by July 31, 1996.
Sincerely,
/s/ Jeff Hilbert
Jeff Hilbert
OEM Deployment Representative
Accepted and Agreed to:
/s/ Kenneth E. deTaski Date: 7/29/96
----------------------- -------------
President
-----------------------
Deltek Systems, Inc.
[*] IDENTIFIES REDACTED MATERIAL DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
<PAGE> 1
EXHIBIT 10.7
MICRO FOCUS
OSX APPLICATION VENDOR LICENSE AGREEMENT
This OSX Application Vendor License Agreement ("Agreement") is entered into as
of June 10, 1993 by and between Micro Focus Incorporated ("Micro Focus") and
DELTEK ("Licensee").
Background
Micro Focus develops and distributes a line of COBOL programmer productivity
tools. Licensee has licensed such tools and used them for development and has
determined to distribute the Micro Focus Operating Systems Extensions ("OSX")
product in connection with Licensee's products. This Agreement sets forth the
terms on which Licensee may distribute the OSX product.
Agreement
NOW, THEREFORE, the parties agree as follows:
1. THE SOFTWARE
The software ("Software") consists of the Operating System Extensions
("OSX") for Micro Focus COBOL in object code form for the operating
environment in the single or multi-user systems specified below. Attached
as Exhibits C and D are the lists of files that make up the OSX under
DOS-OS/2 and UNIX respectively.
2. LICENSE FEES
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
Software Version Operating Current Single Copy
Environment License Fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
OSX DOS-OS/2 Single User 3.0 DOS-OS/2 [*]
- -----------------------------------------------------------------------------------------------------------------
OSX DOS-OS/2 per Server 3.0 DOS-OS/2 [*]
(Fileshare NLM)
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
The OSX Single User Single Copy License Fee permits i) one user license
on, a DOS-OS/2 single user system or ii) one user license on a DOS-OS/2
multi-user system. A DOS-OS/2 multi-user system consists of one server
and its clients. A Single User License Fee is payable for each user
licensed on a DOS-OS/2 multi-user system. The license fee for each
multi-user system in the DOS-OS/2 environment is computed by combining the
Server Fee plus the total Single User Fees for each user licensed on that
system. Additional users linked to a previously licensed Server require
payment of additional Single User Fees as users are added.
[*] IDENTIFIES REDACTED MATERIAL DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
<PAGE> 2
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
Software Version Operating Current Single Copy
Environment License Fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
UNIX OSX per Initial User 3.0 UNIX [*]
- -----------------------------------------------------------------------------------------------------------------
UNIX OSX per Additional 3.0 UNIX [*]
Concurrent User
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
The UNIX OSX Initial User Fee permits a single user license for each UNIX
OSX installation. An installation shall consist of a single UNIX computer
which may have one or more terminals. The OSX Initial User Fee shall
support only one user unless additional concurrent users are licensed.
Licenses for additional users on the same installation require the Per
Additional Concurrent User Single Copy License Fee be paid for each
additional concurrent user. License fees for each multi-user system are
computed by adding the UNIX OSX Per OSX Initial User Fee to the total Per
Additional Concurrent User Fees for that system.
Licensee agrees to pay Micro Focus for the right to make additional copies
of the OSX during the term of this Agreement based on the Cumulative
Discount Schedule shown below. The Cumulative Discount Schedule will only
apply for the term of this Agreement. Any subsequent renewal of this
Agreement pursuant to the terms herein may be subject to different
discount conditions at the sole discretion of Micro Focus and which will
be confirmed in writing by Micro Focus at the time of renewal. The
Current Single Copy License Fee for all the above products is subject to
change without notice.
3. CUMULATIVE DISCOUNT SCHEDULE
Licensee, for the duration of this Agreement, will have the right to
procure additional licenses for OSX according to the following discount
schedule:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Cumulative Number of Copies Licensed $ Discount Applicable to the
During the Term of the Agreement Most Recent Order
- --------------------------------------------------------------------------------------
<S> <C>
[*] [*]
- --------------------------------------------------------------------------------------
[*] [*]
- --------------------------------------------------------------------------------------
[*] [*]
- --------------------------------------------------------------------------------------
[*] [*]
- --------------------------------------------------------------------------------------
[*] [*]
- --------------------------------------------------------------------------------------
[*] [*]
- --------------------------------------------------------------------------------------
[*] [*]
- --------------------------------------------------------------------------------------
[*] [*]
- --------------------------------------------------------------------------------------
[*] [*]
- --------------------------------------------------------------------------------------
</TABLE>
[*] IDENTIFIES REDACTED MATERIAL DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
2
<PAGE> 3
<TABLE>
- --------------------------------------------------------------------------------------
<S> <C>
[*] [*]
- --------------------------------------------------------------------------------------
[*] [*]
- --------------------------------------------------------------------------------------
[*] [*]
- --------------------------------------------------------------------------------------
[*] [*]
- --------------------------------------------------------------------------------------
[*] [*]
- --------------------------------------------------------------------------------------
</TABLE>
4. INITIAL ORDER
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------
Software Single Copy License Fee Quantity Initial License Fee
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
OSX DOS-OS/2 Single User [*] 90 [*]
- --------------------------------------------------------------------------------------------------------
OSX DOS-OS/2 per Server [*]
- --------------------------------------------------------------------------------------------------------
UNIX OSX per Initial User [*] 1 [*]
- --------------------------------------------------------------------------------------------------------
UNIX OSX per Additional [*] 9 [*]
Concurrent User
- --------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<S> <C>
(All prices quoted in U.S. Dollars)
Total Initial License Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ [*]
Discount Applied (Per Paragraph . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [*]
Prepaid License Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 00
INITIAL ORDER FEE PAYABLE TO MICRO FOCUS (NOT LESS THAN $1,000.00) . . . . . . . . . . . . . . . $ [*]
</TABLE>
Licensee agrees that upon execution of this Agreement the above Initial
Order Fee shall be due and payable to Micro Focus, any prepaid license fee
shall be irrevocable and non-refundable.
The Initial Order will be paid upon submission of a signed copy of this
Agreement to Micro Focus by Licensee. License Fees for additional
quantities of the OSX must be paid within 30 days of the end of each month
during which the additional copies were made by Licensee.
5. SCOPE OF LICENSE
Licensee may (i) make and distribute the number of copies of OSX for which
License Fees have been paid to or will be paid Micro Focus for use solely
in combination with Licensee's own application software, only on the same
recording medium in object code form only, and (ii) sublicense the OSX to
end user customers only in such combination for use each on a single-user
or multi-user computer system for OSX subject to the following:
a. Licensee will make all reports and payments as provided in this
Agreement.
[*] IDENTIFIES REDACTED MATERIAL DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
3
<PAGE> 4
b. Copies of the OSX may be distributed to end users only if the OSX is
delivered together with a written end user license agreement which
provides the same protection to Micro Focus as the Micro Focus End
User Software License Agreement attached as Exhibit A, and which (i)
is signed by the end user or (ii) is an agreement which is
prominently displayed on the outside of the package containing
Licensee's product and contains terms to the effect that such end
user license agreement is accepted by the end user when the end user
removes the shrink-wrap packaging surrounding Licensee's product.
Licensee agrees to indemnify Micro Focus in the event that Micro
Focus sustains any loss due to Licensee's failure to comply with the
provisions in this clause (b).
c. Licensee will not authorize any third party to copy all or any part
of the OSX except as permitted in Exhibit A.
d. Licensee may not modify, reverse engineer, reverse compile, or
disassemble any object code for the OSX.
e. Licensee may not distribute, make copies of or prepare derivative
works of any Micro Focus documentation without the express written
permission of Micro Focus.
6. SERIALIZATION AND REPORTING
Licensee agrees to reference the copies it makes of the OSX by the same
serial or other identification number it gives to the copies of its own
applications which are co-resident with the OSX on the distribution
medium. Licensee agrees to report to Micro Focus the serial numbers,
registration numbers, or other identification numbers or codes which
Licensee uses to identify the copies it makes of its own applications
software and which are distributed in conjunction with the copies it takes
of the OSX. These numbers will be treated as the identifying numbers of
the copies of the OSX which Licensee is granted the right to make under
this Agreement. Licensee agrees to submit the OSX Report Form along with
Licensee fee payments due, if any, within fifteen (15) days of the last
day of each month; and the timely presentation of such reports and payment
to Micro Focus are a condition of the grant by Micro Focus to Licensee to
make further copies of the OSX.
7. RECORD KEEPING/AUDITS
Licensee agrees to make and keep for at least three years from the date of
the entry a record of the serial or other identification number of each
copy of the OSX made or delivered by Licensee to its customers, along with
a record of the name and address of each customer at the time of transfer
of the OSX.
Micro Focus will have the right, at least once per calendar year during
the term of the Agreement and for three (3) years thereafter to have
independent certified public accountants,
4
<PAGE> 5
reasonably acceptable to Licensee, audit all records that this Agreement
requires Licensee to make and keep. All audits will begin upon at least
forty-eight (48) hours prior notice. Micro Focus will pay for the audit
unless the audit shows a shortfall of more than 5% between the results of
the audit and the reports submitted for the period audited, then Licensee
will pay the auditor's fee.
8. ASSIGNMENT
Either party may assign this Agreement to the surviving entity in a merger
or consolidation in which it participates or to a purchaser of all or
substantially all of its assets. In addition, Micro Focus may assign this
Agreement to any person to whom Micro Focus transfers all or substantially
all of its rights in the OSX. Otherwise, neither party may assign any
rights or delegate any duties under this Agreement without the other's
prior written consent, and any attempt to do so without that consent will
be void. This Agreement will bind and inure to the benefit of the parties
and their respective successors and permitted assigns of the parties
hereto.
9. DISCLAIMER OF WARRANTY FOR OSX
THE OSX IS LICENSED ON AN "AS IS" BASIS. THIS MEANS THAT THE ENTIRE RISK
AS TO THE QUALITY AND PERFORMANCE OF THE OSX IS ON LICENSEE. SHOULD THE
OSX PROVE DEFECTIVE FOLLOWING ITS USE, LICENSEE, AND NOT MICRO FOCUS,
ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICE, REPAIR OR CORRECTION.
MICRO FOCUS DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MICRO FOCUS MAKES
NO REPRESENTATIONS CONCERNING THE QUALITY OF THE OSX AND DOES NOT PROMISE
THAT THE OSX WILL BE ERROR FREE OR WILL OPERATE WITHOUT INTERRUPTION.
10. EXPORT CONTROLS IN GENERAL
In exercising its rights under the Agreement, Licensee agrees to comply
strictly and fully with all export controls imposed on the OSX by any
country or organization of nations within whose jurisdiction Licensee
operates or does business. Examples of organizations of nations that may
have export controls pursuant to treaty or international agreement are:
the North Atlantic Treaty Organization, the European Economic Community,
the Asian Common Market and the Association of Southeast Asian Nations.
11. DUTIES, TAXES AND SIMILAR CHARGES
Licensee will pay or reimburse Micro Focus for all duties, sales and use
taxes, other taxes and other charges relating to the OSX, this Agreement
or payments hereunder, with the sole exception of taxes on Micro Focus'
income.
5
<PAGE> 6
12. OWNERSHIP OF THE OSX
Micro Focus and its suppliers have and will retain all ownership rights in
the OSX including all patent rights, copyrights, trade secrets,
trademarks, service marks, related goodwill and confidential and
proprietary information. Licensee will have no rights in the OSX except
as explicitly stated in this Agreement.
13. NOTICES
Licensee will include copies of a notice regarding proprietary rights
approved in writing by Micro Focus on all copies of the OSX that Licensee
distributes, as follows: (i) on the distribution diskette label and (ii)
prominently displayed on Licensee's packaging and/or documentation for his
application software (this may be on the copyright page, title page, outer
binder, cover, or elsewhere). Licensee's performance of this obligation
is a condition of Micro Focus' authorization of Licensee's distribution of
copies of the OSX. Object code provided by Micro Focus will have an
appropriate notice embedded in it, which Licensee will keep intact. An
acceptable notice would be as follows:
Copyright - [year of publication] [Licensee]; portions copyright 19xx
Micro Focus Ltd. All rights reserved. This program or documentation
contains confidential information and trade secrets of [Licensee] and its
suppliers. Reverse engineering of object code is prohibited. Use of
copyright notice is precautionary and does not imply publication.
Unless Micro Focus otherwise instructs, the year 19xx denotes the years
that the OSX or portions thereof have been copyrighted. If no year(s) is
(are) indicated in the documentation, Micro Focus will supply this
information upon request.
14. LIMITATION OF LIABILITY
IN NO EVENT WILL MICRO FOCUS BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES ARISING OUT OF THE USE OF THE
RECORDING MEDIUM OR THE OSX BY ANY PERSON, WHETHER OR NOT MICRO FOCUS IS
INFORMED OF THE POSSIBILITIES OF SUCH DAMAGES IN ADVANCE. MICRO FOCUS'
TOTAL LIABILITY WITH RESPECT TO ALL CAUSES OF ACTION TOGETHER WILL NOT
EXCEED AMOUNTS PAID BY LICENSEE TO MICRO FOCUS FOR USE OF THE OSX
HEREUNDER. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION, INCLUDING,
BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE,
STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS, AND CAUSES OF ACTION
BASED ON ANY OTHER LEGAL THEORY.
6
<PAGE> 7
15. TERMINATION
This Agreement will terminate:
a. End of Term. Upon the expiration of the Term of the Agreement. The
initial term shall be three (3) years from the Effective Date of this
Agreement.
b. Distribution of All Copies. Upon the distribution by Licensee of all
copies of the OSX permitted to be distributed by Licensee hereunder.
c. Breach. On the thirtieth (30th) day after either party gives the
other notice of a material breach by the other of any term or
condition of this Agreement, unless the breach is cured before that
day; or
d. Bankruptcy or Insolvency. When either party at its discretion gives
the other notice of termination after the other has been for more
than sixty (60) days the subject of any voluntary or involuntary
proceeding relating to bankruptcy, insolvency, liquidation,
receivership, composition of or assignment for the benefit of
creditors.
16. EFFECT OF TERMINATION
After termination:
a. End of Licenses. Licensee will have no right to copy, market or
distribute the OSX and will promptly destroy or return to Micro Focus
all copies of the OSX in its possession or under its control.
b. End User's Rights. End users properly sublicensed prior to
termination may continue to use the OSX under the terms of their
written sublicense agreements, but all sublicense agreements will
inure to Micro Focus' benefit, and Licensee will execute documents
and provide assistance as reasonably requested by Micro Focus to
enable Micro Focus to enforce them.
c. No Damages for Termination: No Effect on Other Rights and Remedies.
Neither party will be liable for damages of any kind as a result of
exercising its right to terminate this Agreement according to these
Terms and Conditions, and termination will not affect any other right
or remedy of either party.
d. Continuing Obligations. Payment obligations arising prior to
termination will remain in force.
7
<PAGE> 8
17. MISCELLANEOUS
a. Choice of Law. This license will be governed by and construed
according to the laws of the State of California, applicable to
contracts entered into and wholly to be performed within the State of
California by California residents.
b. Entire Agreement. This Agreement represents the entire agreement
between the parties relating to OSX and supersedes all prior
representations, discussions, negotiations and agreements, whether
written or oral.
c. Amendment. This Agreement may be amended or supplemented only by a
writing signed on behalf of both parties. No purchase order, invoice
or similar document will affect this Agreement by the receiving
party.
d. Waiver. No waiver will be implied from conduct or failure to enforce
rights. No waiver will be effective unless in writing signed on
behalf of the party claimed to be waived.
e. Contingencies. Neither party will have the right to claim damages or
to terminate this Agreement as a result of the other's failure or
delay in performance due to circumstances beyond its reasonable
control, such as labor disputes, strikes, lockouts, shortages of or
inability to obtain labor, fuel, raw materials or supplies, war,
riot, insurrection, epidemic, act of God, or governmental action not
the fault of the nonperforming party.
f. Severability. If any part of this Agreement is found invalid or
unenforceable, it will be enforced to the maximum extent permitted by
law, and all other parts of this Agreement will remain in force.
g. Equitable Relief. Either party may have injunctive, preliminary or
other equitable relief to remedy any actual or threatened
unauthorized disclosure of confidential information or unauthorized
use, copying, marketing, distribution or sublicensing of the OSX.
h. Attorneys' Fees. In any suit to enforce this Agreement, the
prevailing party will have the right to recover its costs and
reasonable attorney's fees, including costs and fees upon appeal.
i. Relationship of Parties. The parties to this Agreement are
independent contractors. There is no relationship of principal to
agent, master to servant, employer to employee or franchisor to
franchisee between the parties. Neither party has the authority to
bind the other or incur any obligation on its behalf.
8
<PAGE> 9
MICRO FOCUS INCORPORATED DELTEK
("Micro Focus") ("Licensee")
/s/ ROBERT CONNORS /s/ ERIC BROWN
- --------------------------------- --------------------------------
Signature Signature
Robert Connors, CFO Eric Brown
- --------------------------------- --------------------------------
Printed Name and Title Printed Name and Title
2465 East Bayshore Road LICENSEE'S ADDRESS:
Palo Alto, CA 94303 8280 Greensboro Dr., #300
McLean, VA 22102
9
<PAGE> 10
EXHIBIT A
MICRO FOCUS END USER SOFTWARE LICENSE AGREEMENT
IMPORTANT. YOU SHOULD CAREFULLY READ THIS LEGAL AGREEMENT BEFORE OPENING THIS
PACKAGE. BY OPENING THIS PACKAGE, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF
THIS AGREEMENT AND AGREE TO ABIDE BY THEM. IF THESE TERMS AND CONDITIONS ARE
NOT ACCEPTABLE TO YOU, DO NOT OPEN THIS PACKAGE, BUT RETURN IT UNOPENED TO YOUR
DISTRIBUTOR AND YOUR MONEY WILL BE REFUNDED.
1. Scope of Agreement. This Agreement covers, and the "Software" includes,
the computer programs enclosed in this package, their accompanying user
documentation, and any related computer programs, documentation and
information subsequently provided by Micro Focus Incorporated ("Micro
Focus").
2. License. Micro Focus grants to you a nonexclusive, nontransferable
license to use the Software in object code form on one "Computer System",
in the United States, Canada, Mexico and Central America. The Computer
System must be a single-user computer. Any use of the Software on a local
area network or mufti-user system requires separate network or multi-user
licensing. Please contact your Micro Focus Account Representative for
details and charges.
You agree not to:
a. Copy. Make any copies of any computer program contained in the
Software, except as set forth in (3) below, and not to make any
copies of all or any part of the user documentation;
b. Disseminate. Provide or disseminate all or any part of the Software
to any other person; or
c. Modify or Reverse Engineer. Attempt to modify, reverse engineer,
reverse compile or disassemble the object code for the Software.
3. Run Time License; Operating System Extension. Micro Focus grants you a
royalty free right to reproduce and distribute executable files created
using the Software. In addition, Micro Focus grants you a royalty-free
right to reproduce and distribute the COBOL Run Time System files of the
Software, provided that you: (a) distribute the COBOL Run Time System
files only in conjunction with and as a part of your software product;
(b) do not use Micro Focus' name, logo, or trademarks to market your
software product; (c) include Micro Focus' copyright notice for the
Software on your product label and as a part of the sign-on message for
your software product: and (d)indemnity, hold harmless, and defend Micro
Focus from and against any claims or lawsuits, including attorney's fees,
that arise or result from the use
10
<PAGE> 11
or distribution of your software product. The COBOL Run Time System files
and Operating System Extension are further described in the "Read this
First" card that is packaged with your Micro Focus product. Please
contact your Micro Focus Account Representative for information on
licensing the Operating System Extension.
4. Term of License. Subject to termination for your breach of this
Agreement, this Agreement and your license will last indefinitely. If you
violate any term or condition of this Agreement, Micro Focus or its agents
may terminate this Agreement and your license immediately by giving you
written notice of termination. You may also terminate this Agreement and
your license voluntarily by giving notice of termination to Micro Focus
and destroying or returning to Micro Focus all copies of all or any part
of the Software in your possession or under your control. You will have no
right to keep or use any copy of the Software for any purpose after
termination.
5. Changes in Software. Micro Focus has a policy of continuous improvement
to the Software and reserves the right to make changes without notice in
new releases and versions of it. Specifications of the Software, including
the amount of memory or time required for execution of any program, may be
changed in new releases and versions.
6. Limited Warranty for Recording Medium. Micro Focus will repair or replace
free of charge any defective recording medium on which the Software is
recorded d the medium is returned to Micro Focus by you within ninety (90)
days after purchase. This warranty does not cover defects due to accident,
abuse, service or modification by any unauthorized person, or any cause
occurring after initial delivery of the medium to you. THIS WARRANTY GIVES
YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY
FROM STATE TO STATE. ALL IMPLIED WARRANTIES WITH RESPECT TO THE RECORDING
MEDIUM, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM
THE DATE OF RETAIL PURCHASE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS
ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT
APPLY TO YOU
7. Procedure for Returning Media. Defective media may be mailed to Micro
Focus, postage prepaid, or may be delivered in person and picked up when
repairs or replacement is completed. Your name, address, telephone number
and User Registration Number (on the registration card) must be attached
to the returned medium. The address for mailing media may be obtained by
telephoning Micro Focus at (415) 856-4161.
8. Disclaimer of Warranty for Software. MICRO FOCUS SOFTWARE IS LICENSED ON
AN "AS IS" BASIS. MICRO FOCUS DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MICRO
FOCUS MAKES NO REPRESENTATIONS CONCERNING THE QUALITY OF THE SOFTWARE AND
DOES NOT PROMISE
11
<PAGE> 12
THAT THE SOFTWARE WILL BE ERROR FREE OR WILL OPERATE WITHOUT INTERRUPTION.
9. Limitation of Liability. IN NO EVENT WILL MICRO FOCUS BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES ARISING OUT
OF THE USE OF THE RECORDING MEDIUM OR THE SOFTWARE BY ANY PERSON, WHETHER
OR NOT INFORMED OF THE POSSIBILITIES OF DAMAGES IN ADVANCE. MICRO FOCUS'
TOTAL LIABILITY WITH RESPECT TO ALL CAUSES OF ACTION TOGETHER WILL NOT
EXCEED AMOUNTS PAID BY YOU FOR THE SOFTWARE. THESE LIMITATIONS APPLY TO
ALL CAUSES OF ACTION, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY,
NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY
TO YOU.
10. Ownership of Software. Micro Focus and its suppliers have and will retain
all ownership rights to the Software, including all patent rights,
copyrights, trademarks, service marks, related goodwill and confidential
and proprietary information. You have no rights in the Software except as
explicitly stated in this Agreement.
11. Use by Government. Use, duplication or disclosure by the Government is
subject to restrictions as set forth in subparagraph (c)(1)(ii) of the
Rights in Technical Data and Computer Software cause at DFARS 52.227-7013
or subparagraphs (c)(1) and (2) of Commercial Computer Software -
Restricted Rights at 48 CFR 52.227-19, as applicable. Contact Micro
Focus, 2465 East Bayshore Road, Palo Alto, California 94303.
12. Assignment and Delegation. You may not assign this Agreement or any
rights under it and may not delegate any duties under this Agreement
without Micro Focus' prior written consent. Any attempt to assign or
delegate without that consent will be void.
13. Exclusive Agreement. THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL PROPOSALS,
COMMUNICATIONS, PURCHASE ORDERS AND PRIOR AGREEMENTS, VERBAL OR WRITTEN,
BETWEEN THE PARTIES. THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE
OF CALIFORNIA.
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<PAGE> 13
EXHIBIT B
OSX V3.0 MONTHLY REPORT
To: MICRO FOCUS INCORPORATED
2465 East Bayshore Road
Palo Alto, CA 94303
From:
Report Date:
Month/Year:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------
Name/No. of Equipment Model and Operating System Serial # Date Issued # of
Users
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
</TABLE>
Balance of Prepaid License Fees . . . . . . . . . . . . . $
-------
TOTAL LICENSE FEES FOR MONTH . . . . . . . . . . . . . . $
-------
LICENSE FEES DUE (if any) . . . . . . . . . . . . . . . . $
-------
Signature
Date
13
<PAGE> 14
EXHIBIT C
MICRO FOCUS COBOL V3.0 FOR DOS-OS/2
MICRO FOCUS COBOL RTS AND OSX FILES LISTING FOR DOS-OS/2
IMPORTANT: CREATING, DISTRIBUTING AND LICENSING YOUR APPLICATIONS
FOR INTERNAL USE AND RESALE
The files listed below under the headings COBOL Run Time System and Operating
System Extensions which are supplied by Micro Focus as part of the product may
be distributed by you for use with your application programs. COBOL Run Time
System files may be distributed free of additional charge. However, a charge
is payable to Micro Focus for distribution of Operating System Extension files.
Please contact your Micro Focus Account Representative for details of these
charges.
Files which are supplied by Micro Focus as part of the product other than those
listed below may not be reproduced or distributed.
COBOL RUN TIME SYSTEM
The files listed directly below constitute the COBOL Run Time System, which is
part of the Micro Focus COBOL product. You do not need to pay a license fee to
distribute these.
ADISCF.EXE COBLIB.DLL MFEXTMAP.DLE
ADISCF.LBR COBLIB.DLW MFEXTMAP.DLL
ADISCFW.EXE COBNLS.DLL MFEXTMAP.DLW
ADISCTRL COBNLS.DLW PAN2PM.DLL
CBLSSEG.DLL COBNLS.ERR PCINST.DLL
CBLWIN.DLL DWPM.DLL REBUILD.EXE
CBLWIN31.DLW GENATT.DLE _BTRV.DLL
COBFP87.DLE GENATT.DLL _BTRV.DLW
COBFP87.DLL GENATT.DLW _BTRV.EXE
COBFP87.DLW HELPADCF.LBR _SQLPRI.DLL
COBIFN.DLL KEYBCF.EXE _SQLPRE.DLL
COBIFN.DLW KEYBCFW.EXE _SQLPRM.DLL
COBLIB.DLE MCSETUP.EXE
OPERATING SYSTEM EXTENSIONS
The files listed directly below constitute the Operating System Extensions. To
distribute any of these you must obtain OSX licenses from Micro Focus.
14
<PAGE> 15
The following files are from Micro Focus COBOL:
ADDPROG.EXE CCINETB.DLL MSHELP.DLL
ADDWPROG.EXE CCINETB.DLW MSHIF.DLL
CCIAPPC.DLL CCINETB.EXE MSHIF.EXE
CCIIPX.DLL HELPNAME.LBR NAME.HNF
CCIIPX.DLW HYHELP.EXE NAME.LBR
CCIIPX.EXE HYHELP.HNF UTILS.LBR
CCIIPX2.EXE HYHELP.ICO _SORT.DLL
CCINAMP.DLL HYHELP.LBR _SORT.DLW
CCINAMP2.DLL HYHELPW.EXE
The following files are from Micro Focus COBOL Toolset:
APPCAPI.DLL CWRX.DLE ON-LINE.LBR
CALLRB.LBR CWRX.DLL PAN2CHR.LBR
CCITCP.DLL CWRX.DLW PAN2WIN.DLL
CCITCP2.EXE FS.EXE PANELS2.GNT
CMENU.LBR FSW.EXE PARMPASS.LBR
COBOLAPI.DLL FS.LBR REPORTER.LBR
COBTHRED.DLE HYH-INTF.GNT SETPPTR.DLL
COBTHRED.DLL LBRMAN.GNT SETUP.EXE
COBTHRED.DLW MFDIR2.HNF TOOLS.LBR
CWRCLI.CFG MFDIR2.LBR XFHFB.DLE
CWRCLI.EXE MFICONS.DLL XFHFB.DLL
CWRCLI.GNT MFICONS.SF XFHFB.DLW
CWRCLIW.EXE MFICONSW.DLL XM.EXE
CWRMSGS.REL ON-LINE.HNF XM.SYS
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<PAGE> 16
MICRO FOCUS COBOL V3.1 FOR DOS, OS/2 AND WINDOWS
MICRO FOCUS COBOL RTS AND OSX FILES LISTING
IMPORTANT-CREATING, DISTRIBUTING AND LICENSING YOUR
APPLICATIONS FOR INTERNAL USE AND RESALE
The files listed below under the headings COBOL Run Time System and Operating
System Extensions which are supplied by Micro Focus as part of the product may
be distributed by you for use with your application programs. COBOL Run Time
System files may be distributed free of additional charge. However, a charge
is payable to Micro Focus for distribution of Operating System Extension files.
Please contact your Micro Focus Account Representative for details of these
charges.
Files which are supplied by Micro Focus as part of the product other than those
listed below may not be reproduced or distributed.
COBOL RUN TIME SYSTEM
The files listed directly below constitute the COBOL Run Time System, which is
part of the Micro Focus COBOL product. You do not need to pay a license fee to
distribute these.
ADISCF.EXE COBNLS.ERR XFHFB.DLL
ADISCF.LBR DWPM.DLL XFHFB.DLW
ADISCFW.EXE GENATT.DLE XM.EXE
ADISCTRL GENATT.DLL XM.SYS
CBLSSEG.DLL GENATT.DLW _BTRV.DLL
CBLWIN.DLL HELPADCF.LBR _BTRV.DLW
CBLWIN31.DLW KEYBCF.EXE _BTRV.EXE
COBFP87.DLE KEYBCFW.EXE _SORT.DLL
COBFP87.DLL MCSETUP.EXE _SORT.DLW
COBFP87.DLW MFEXTMAP.DLE _SQLEEN.DLL
COBIFN.DLL MFEXTMAP.DLL _SQLEEX.DLL
COBIFN.DLW MFEXTMAP.DLW _SQLEIN.DLL
COBLIB.DLE PAN2PM.DLL _SQLEIX.DLL
COBLIB.DLL PCINST.DLL _SQLPRI.DLL
COBLIB.DLW REBUILD.EXE _SQLPRE.DLL
COBNLS.DLL SYSRUNG.LBR _SQLPRM.DLL
COBNLS.DLW XFHFB.DLE
OPERATING SYSTEM EXTENSIONS
The files listed directly below constitute the Operating System Extensions. To
distribute any of these you must obtain OSX licenses from Micro Focus.
The following files are from Micro Focus COBOL:
CCIAPPC.DLL CCINETB.DLW MSHELP.DLL
CCIIPX.DLL CCINETB.EXE MSHIF.DLL
CCIIPX.DLW HELPNAME.LBR MSHIF.DLW
CCIIPX.EXE HYHELP.CFX MSHIF.EXE
CCIIPX2.EXE HYHELP.EXE NAME.LBR
CCINAMP.DLL HYHELP.HNF UTILS.LBR
CCINAMP2.DLL HYHELP.LBR
CCINETB.DLL HYHELPW.EXE
16
<PAGE> 17
The following files are from Micro Focus COBOL Toolset:
APPC_DOS.CFG CCITCPW.LIB MNETONE.EXE
APPCAPI.DLL CMENU.CFG MNOVLWP.DLL
CALLRB.LBR CMENU.LBR MPATHWAY.DLL
CALLRB.OBJ CMENU.MNT MPCNFS.EXE
CCI.H CMENU.MNU MPCNFS2.EXE
CCI.INI COBENV.DLE MPCNFS4.DLL
CCIAPPC.DLW COBENV.DLL MSCVSUB.OBJ
CCIAPPC.EXE COBENV.DLW MSOCKLIB.DLL
CCIAPPC.LIB COBOLAPI.DLL MSOCKLIB.RC
CCIAPPC2.EXE COBTHRED.DLE MWINSOCK.DLL
CCIAPPCD.LIB COBTHRED.DLL MWINTCP.EXE
CCIAPPCW.EXE COBTHRED.DLW NAME.HNF
CCIAPPCW.LIB CWRCLI.CFG NETCONF
CCIIPX.LIB CWRCLI.EXE ON-LINE.CFX
CCIIPXD.LIB CWRCLI.GNT ON-LINE.LBR
CCIIPXW.LIB CWRCLIW.EXE ON-LINE.HNF
CCILU2.DLL CWRMSGS.REL PAN2CHO1.OBJ
CCILU2.DLW CWRX.DLE PAN2CHO2.OBJ
CCILU2.EXE CWRX.DLL PAN2CHR.LBR
CCILU2.LIB CWRX.DLW PAN2CHR.LNK
CCILU2D.LIB FS.EXE PAN2CHR.OBJ
CCILU2W.LIB FS.LBR PAN2NULL.OBJ
CCINAMP.LIB FSMGR.LBR PAN2PM.LIB
CCINETB.LIB FSMGR.OBJ PAN2VIO.LIB
CCINETBD.LIB FSVIEW.CFG PAN2WIN.DLL
CCINETBW.LIB FSVIEW.EXE PANELS2.GNT
CCITCP.DLL FSVIEW.HNF PANELS2.OBJ
CCITCP.DLW FSVIEW.LBR PARMPASS.LBR
CCITCP.EXE FSVIEWPM.EXE PCMEFIN.OBJ
CCITCP.INI FSVIEWW.EXE PCMINIT.OBJ
CCITCP.LIB FSW.EXE RBLDMAIN.OBJ
CCITCP2.EXE HYHINTF.GNT RBLDSUB.OBJ
CCITCP2.FTP INSTALL.NFS REPORTER.LBR
CCITCP2.IBM LBRMAN.GNT RNMFILE.EXE
CCITCP2W.EXE LSOCKLIB.LIB RNMNIS.EXE
CCITCP2W.FTP LU2LOGON.C RNMREM.EXE
CCITCP2W.JSB LU2LOGON.CD RTM.EXE
CCITCPD.FTP LU2LOGON.CW RTMREM.EXE
CCITCPD.IBM LU2LOGON.DLL RUN.CFG
CCITCPD.LIB LU2LOGON.DLW RUN.EXE
CCITCPDW.FTP M3OPEN.DLL RUNPM.EXE
CCITCPDW.JSB M3OPEN.EXE RUNW.EXE
CCITCPE.FTP MBW.EXE SETPPTR.DLL
CCITCPE.JSB MFDIR2.HNF SETUP.EXE
17
<PAGE> 18
CCITCPL.FTP MFDIR2.LBR SHELL.LBR
CCITCPL.IBM MFICONS.DLL TOOLS.LBR
CCITCPLD.FTP MFICONS.SF VSL.INI
CCITCPLD.JSB MFICONSW.DLL
CCITCPLW.FTP MLOCUS2.EXE
CCITCPLW.JSB MFTP.EXE
CCITCPW.DLW MHPARPA.DLL
18
<PAGE> 19
EXHIBIT D
MICRO FOCUS COBOL V3.0 FOR UNIX OSX FILES LISTING
The files listed below constitute the OSX for UNIX, and a charge is payable to
Micro Focus for the distribution of the OSX files.
Files which are supplied by Micro Focus as part of the product other than those
listed below may not be reproduced or distributed.
ADIS.gnt fhxscomp.gnt
ADISCF.gnt fs
ADISCTRL help.gnt
ADISDYNA.gnt help.lbr
ADISINT.gnt helpadcf.lbr
ADISKEY.gnt helpname.lbr
ADISKEY2.gnt hyh-intf.gnt
BTR2XFH.gnt hyhelp.lbr
CBLDC001.gnt install
DISPCONV.gnt Im.err
FHREDIR.gnt Imbin
KEYBCF.gnt lmgrd
MFTOOLS.CFG mFFH.gnt
PANELS.gnt mfconfig.gnt
banner.gnt mfocusd
bin name.gnt
ccitcp2 osxver
cob.msg reporter.lbr
cobintfn.gnt rgb.txt
coblib rts.err
cobver rts.msg
commi.gnt rts32
comms.gnt rtstype
cpylib src
cwrcli.gnt terminfo
cwrmsgs.rel tools.lbr
docs utils.lbr
fhrdrpwd.gnt
19
<PAGE> 20
FIRST AMENDMENT TO
THE OSX APPLICATION VENDOR
LICENSE AGREEMENT
The OSX Application Vendor License Agreement between Micro Focus Incorporated
and Deltek effective as of June 10, 1991 ("the Agreement") is hereby amended as
follows.
The term of the Agreement is extended to March 31, 1998.
All terms and conditions including the discount schedule and payment terms
apply.
Except as modified herein, the terms and conditions remain in full force and
effect. Terms not defined in this First Amendment have the same meaning as in
the Agreement.
Effective date: December 12, 1996
AGREED AND ACCEPTED:
MICRO FOCUS INCORPORATED DELTEK
Signature: /s/ Loren E. Hillberg Signature: /s/ Alan Stewart
Name: Loren E. Hillberg Name: Alan Stewart
Title: Vice President Title: Chief Financial Officer
Date: December 12, 1996 Date: December 12, 1996
