<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 29, 1999
REGISTRATION NO. 333-76893
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
CONTINUUS SOFTWARE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE
(State or jurisdiction 7371 43-1070080
of incorporation or (Primary Standard Industrial (I.R.S. Employer
organization) Classification Code Number) Identification Number)
</TABLE>
108 PACIFICA
IRVINE, CALIFORNIA 92618
(949) 453-2200
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
JOHN R. WARK
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CONTINUUS SOFTWARE CORPORATION
108 PACIFICA
IRVINE, CALIFORNIA 92618
(949) 453-2200
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
<S> <C>
D. BRADLEY PECK, ESQ. JEFFREY D. SAPER, ESQ.
MICAELA H. MARTIN, ESQ. MICHAEL J. DANAHER, ESQ.
PATRICK R. O'NEIL, ESQ. ANTONE F. JOHNSON, ESQ.
COOLEY GODWARD LLP WILSON SONSINI GOODRICH & ROSATI, P.C.
4365 EXECUTIVE DRIVE, SUITE 1100 650 PAGE MILL ROAD
SAN DIEGO, CA 92121 PALO ALTO, CA 94304
(619) 550-6000 (650) 493-9300
</TABLE>
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(A) EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- - ---------- -----------------------
<C> <S>
++10.33 Value Added Reseller License Agreement, dated September 24,
1992, as last amended March 31, 1995, among Registrant and
Informix Software, Inc.
</TABLE>
- - -------------------------
++ Confidential treatment has been requested with respect to certain portions of
this exhibit. Omitted portions will be filed separately with the Securities
and Exchange Commission.
II-1
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-1 and has duly caused this Post-effective
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Irvine, County of Orange,
State of California, on the 28th day of July 1999.
By: /s/ JOHN R. WARK
---------------------------------------
John R. Wark
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Post-effective
Amendment No. 1 to the Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ JOHN R. WARK President, Chief Executive and Director July 28, 1999
- - ------------------------------------------ (Principal Executive Officer)
John R. Wark
* Vice President, Finance and Chief July 28, 1999
- - ------------------------------------------ Financial Officer (Principal Financial
Steven L. Johnson and Accounting Officer)
* Director July 28, 1999
- - ------------------------------------------
Kevin G. Hall
* Director July 28, 1999
- - ------------------------------------------
Stewart A. Schuster
* Director July 28, 1999
- - ------------------------------------------
Fred B. Cox
* Director July 28, 1999
- - ------------------------------------------
Sol Zechter
* Director July 28, 1999
- - ------------------------------------------
A. Barry Patmore
*By: /s/ JOHN R. WARK
- - -----------------------------------------
John R. Wark
</TABLE>
II-2
<PAGE> 4
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
<C> <S>
++10.33 Value Added Reseller License Agreement, dated September 24,
1992, as last amended March 31, 1995, among Registrant and
Informix Software, Inc.
</TABLE>
- - -------------------------
++ Confidential treatment has been requested with respect to certain portions of
this exhibit. Omitted portions will be filed separately with the Securities
and Exchange Commission.
<PAGE> 1
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.80(b)(4)
200.83 AND 230.406
*** INDICATES TEXT OMITTED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT
WHICH HAS BEEN FILED SEPARATELY WITH
THE COMMISSION
EXHIBIT 10.33
Contact No. 6458-00
VALUE ADDED RESELLER LICENSE AGREEMENT
The parties to this Value Added Reseller License Agreement ("Agreement") are
Informix Software, Inc. ("Informix"), a Delaware corporation, and the party
identified on the signature block ("Licensee"), both having principal places of
business at the addresses specified in the signature block of this Agreement.
Capitalized terms used in this agreement shall have the meanings specified in
Section 9 of this Agreement.
IT IS HEREBY MUTUALLY AGREED AND UNDERSTOOD:
SECTION 1. LICENSE GRANT AND RESTRICTIONS.
1.1 NONEXCLUSIVE LICENSE GRANT. Informix hereby grants Licensee, subject to
Paragraph 1.2 of this Agreement, the following royalty-bearing,
nontransferable, nonexclusive licenses which may be exercised solely within
the Distribution Territory. Licensee may:
(a) obtain from Informix the finished "shrink-wrap" version of Products
for: (a) internal development purposes of the VAR Program; and (b)
distribution to Sublicensees and End Users in conjunction with the
Application Packages; and
(b) grant the right for one or more Distributors to distribute and
sublicense the Products, with or as part of the Application Packages,
to Resellers or End Users; and
(c) use the Informix trademarks and/or service marks solely to promote the
distribution of the Products with or as part of the Application
Packages, provided such use conforms to the Informix Trademark Use
Policy.
1.2 LICENSING RESTRICTIONS. The rights granted in Section 1.1 of this Agreement
are expressly limited to, and restricted by, the following:
(a) COPYING. No copies may be made of the Products except as explicitly
authorized by this Agreement or the End User License Agreement.
Licensee shall have no right to manufacture, modify or copy User
Documentation.
(b) COMPUTER SYSTEM. The Products shall be distributed only for use on, or
in conjunction with, the Computer Systems specified in Exhibit A,
Section 1, of this Agreement.
(c) SUBLICENSING.
(1) No Products may be distributed by or to a Sublicensee prior to
the execution of a written agreement between Licensee and the
Sublicensee, or between any Sublicensee and its further
Sublicensee, in accordance with this Section 1.2(c).
(2) Each agreement between Licensee and a Sublicensee or any of
Sublicensee's further Sublicensees shall include the provisions
of the Sections or subsections of this Agreement titled "License
Restrictions" "Licensee Representations and Obligations,"
"Limitation of Warranty and Liability," "Confidential and
Proprietary Information," "Term and Termination" and "General" in
substantially similar terms. Licensee shall make a good faith
effort to insure that all Sublicensees between Licensee and the
End User refrain from infringing upon Informix's proprietary
rights, do not make any unauthorized copies of the Products and
otherwise comply with the requirements of such agreements.
Licensee shall take such action as is necessary to enforce such
agreements and the End User License Agreement, including
termination of the Sublicensee's rights thereunder, if
1.
<PAGE> 2
any violations come to its attention.
(3) Upon Informix's written request, Licensee shall supply Informix
with a copy of any sublicense agreement, including an English
translation if the agreement is written in a language other than
English.
(4) All license and other fees charged by Licensee to a Sublicensee
shall be in Licensee's sole discretion.
(5) Licensee shall have no authority to grant any rights to a
Sublicensee other than those specified in Sections 1.1(b) and
1.1(c) of this Agreement.
(6) Licensee shall have no authority to grant to anyone a license to
copy, manufacture, adapt, create derivative works for, translate
or otherwise modify the Products, User Documentation or any other
property of Informix.
(d) EXPORTS AND RE-EXPORTS. If licensee is permitted by this Agreement to
distribute the Products outside the United States, Licensee and
Sublicensee shall comply with the export and re-export provisions in
Exhibit D.
(e) SIMILAR PRODUCTS. Licensee shall not, either directly or through a
third party, use the Products, or the Source Code, or a derivative
thereof, or any confidential or proprietary information to Informix,
to create any computer software programs or user documentation which
is functionally, visually or otherwise identical or substantially
similar to any Informix Product or product, whether or not listed in
Exhibit A of this Agreement.
(f) REVERSE ENGINEERING. Licensee shall not, either directly or through a
third party, reverse engineer, disassemble or decompile any of the
Products, or make any attempt in any fashion to obtain or derive the
Source Code from any Informix Product or product, whether or not
listed in Exhibit A of this Agreement.
(g) DERIVATIVE WORKS. Licensee shall have no right to create derivative
works of the Products, whether directly or through any third party,
including, but not limited to, translated or localized versions of the
Products. Use of the Products as described in the User Documentation,
including creation of Application Packages, shall not be considered
using the Products to create derivative works.
(h) TIME-SHARING, RENTAL OR LEASE. Licensee shall not time share, rent,
lease or make internal productive use of the Products.
SECTION 2. RESERVATION OF RIGHTS AND REMDIES.
In addition to any particular right or remedy provided for under this Agreement,
Informix reserves all other rights and remedies available under copyright,
patent, trademark, trade secret, and other applicable laws and administrative
regulations.
SECTION 3. LICENSEE REPRESENATIONS AND OBLIGATIONS.
Licensee represents and warrants that as of the Effective Date and continuing
until termination of this Agreement:
(a) Licensee will use its best efforts to protect Informix's rights in its
trademarks, patents, logos, service marks, copyrights and trade
secrets.
(b) Licensee will make no representations, nor give any warranties, about
the Products to anyone, unless the representation or warranty is
contained in the End User License Agreement, the User Documentation,
or other materials relating to the Products which are provided by
Informix. Licensee expressly disclaims any ownership or other interest
in the intellectual property and proprietary rights
2.
<PAGE> 3
in the Products, including, but not limited to, all copyright,
trademark, patent, service mark, logo, confidential information or
trade secret rights. Unless specifically requested by Informix,
Licensee will not in any way identify itself as the owner of any
Informix copyright, patent trademark, service mark, logo or
confidential information, or register or attempt to register same in
Licensee's name or any other name, or request or assist anyone else in
doing so.
(c) The End User License Agreement will apply to the Products distributed
by Licensee and Sublicensees to End Users.
(d) Licensee will provide the first level of support and skilled
instruction including all maintenance, update, warranty and/or support
services for all Application Packages.
(e) If Licensee becomes aware of any actual or suspected unauthorized use
or disclosure of the Products, copyrights, patents, trademarks,
service marks, trade secrets or confidential information of Informix,
Licensee will promptly notify Informix and will assist Informix, at
Informix's request and expense, in the investigation and prosecution
of such unauthorized use or disclosure.
(f) Licensee warrants that there are no impediments known to Licensee
which would prevent Licensee's compliance with all of the terms of
this Agreement.
(g) All advertising, and all promotional and marketing materials,
particularly where an Informix logo, trademark, or service mark is
used, shall be of at least the same quality as similar advertising or
marketing or promotional materials provided or used by Informix. Upon
Informix's request, Licensee's advertising, marketing or promotional
materials in which an Informix logo, trademark or service mark is used
shall be submitted to Informix for its prior written approval, which
shall not be unreasonably withheld.
SECTION 4. PAYMENT, RECORDS AND AUDIT.
4.1 LICENSE FEES. Licensee shall pay all Product license fees and other charges
relating to either the Products or to services provided by Informix, as
specified in Exhibit B of this Agreement.
4.2 RECORDS AND ROYALTY REPORTS. Licensee shall keep complete and accurate
records of all copies of the Products. These records shall include (without
limitation) the Product name, Computer System (including Operating System
and model), the Informix machine class, the number of users per license,
the software serial numbers, the date of distribution, and the name and
address of the recipient of each copy including the zip or postal code
("Copy Records"). If requested by Informix, within twenty (20) days of
Informix's request, Licensee shall provide Informix with a copy of the Copy
Records for the previous month.
4.3 AUDITS. Informix shall have the right to audit all Licensee records
reasonably related to this Agreement. An audit may be conducted on five (5)
days' notice, during Licensee's normal business hours, no more than once
each calendar year, and at Informix's expense. However, if the audit
reveals either: (a) any material breach of the terms and conditions of this
Agreement; or (b) that there is a difference between the amount due to
Informix and the amount reported by Licensee, Licensee shall pay the
difference, and shall also pay all costs of the audits if the difference is
greater than five percent (5%) of the total due to Informix. If the amount
due is less than the amount reported, the difference shall be credited
toward future license fees due from Licensee.
4.4 LICENSEE EXPENSES. Licensee shall be solely responsible for payment of all
expenses incurred by Licensee in its performance of this Agreement,
including, but not limited to expenses relating to: local marketing and
promotion; support and warranty services; travel to or from Informix's
premises; bad debts; collection agency's fees; law suits between Licensee
and any third party; and all taxes, tariffs and transportation costs
identified in Exhibit B of this Agreement.
3.
<PAGE> 4
SECTION 5. LIMITATION OF WARRANT AND LIABILITY.
5.1 LIMITED WARRANTY.
(a) Informix warrants:
(1) that the use or distribution of unmodified Products, or the
exercise of the licensees granted hereunder, will not infringe
the intellectual property rights of any third party under
copyright, trademark or patent law of the United States;
(2) that it has full power and right to license the Products and
perform all other terms of this Agreement;
(3) that it will honor the terms and conditions of the End User
License Agreement;
(4) that the media on which Informix delivers the Products will
remain free from defects in materials and workmanship for a
period of ninety (90) days from the receipt by the End User; and
(5) that the Products will substantially conform to the User
Documentation.
(b) EXCEPT FOR THE LIMITED WARRANTIES STATED ABOVE, LICENSEE ACCEPTS THE
PRODUCTS PROVIDED UNDER THIS AGREEMENT "AS IS," WITH ALL FAULTS AND
WITHOUT OTHER WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
5.2 REMEDY FOR BREACH OF LIMITED WARRANTY.
(a) Licensee's sole remedy for Informix's breach of Sections 5.1(a)(1) or
5.1(a)(2) of this Agreement shall be that: Informix will indemnify and
hold Licensee harmless from and against any loss, cost, liability and
expense (including reasonable attorney fees), arising out of
Informix's breach of any of the warranties or representations of
Informix contained in those Sections, provided: (a) Licensee promptly
gives written notice of any claim to Informix; (b) Licensee provides
any assistance which Informix may reasonably request for the defense
of the claim; and (c) Informix has complete control of the defense.
(b) Licensee's sole remedy for Informix's breach of Sections 5.1(a)(3),
5.1(a)(4), and 5.1(a)(5) of this Agreement shall be: During the 90-day
warranty period and without charge to Licensee, a Sublicensee, or an
End User, Informix in its sole discretion will replace defective media
manufactured by Informix with new media, or either provide maintenance
or service to Licensee, but not on-site service, to keep the Products
in working order, or replace the Products, or refund the Object Code
license fee paid to Informix for the Products.
(c) the above remedies are subject to Sections 5.3 and 5.4 of this
Agreement.
5.3 LIMITATION OF LIABILITY. EXCEPT AS SPECIFIED IN SECTION 5.2 OF THIS
AGREEMENT: (A) INFORMIX'S LIABILITY TO LICENSEE OR ANY OTHER THIRD PARTY,
FOR A CLAIM OF ANY KIND ARISING AS A RESULT OF, OR RELATED TO ANY PRODUCT
OR USER DOCUMENTATION PROVIDED OR MANUFACTURED PURSUANT TO THIS AGREEMENT,
WHETHER IN CONTRACT, IN TORT
4.
<PAGE> 5
(INCLUDING NEGLIGENCE OR STRICT LIABILITY), UNDER ANY WARRANTY, OR
OTHERWISE, SHALL BE LIMITED TO MONETARY DAMAGES AND THE AGGREGATE AMOUNT
THEREOF FOR ALL CLAIMS RELATING TO ANY PARTICULAR PRODUCT OR USER
DOCUMENTATION SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE CUMULATIVE
OBJECT CODE LICENSE FEE PAID TO INFORMIX UNDER THIS AGREEMENT FOR THE
PRODUCTS, THE USE OR PERFORMANCE OF WHICH GIVES RISE TO THE CLAIM; AND (B)
UNDER NO CIRCUMSTANCES SHALL INFORMIX BE LIABLE TO LICENSEE OR ANY THIRD
PARTY FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST
PROFITS), EVEN IF INFORMIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, OR FOR WARRANTIES GRANTED BY LICENSEE OR ANY THIRD PARTY IN EXCESS
OF THOSE CONTAINED IN THE STANDARD INFORMIX END USER LICENSE AGREEMENT.
NO ACTION, REGARDLESS OF FORM, ARISING UNDER THIS AGREEMENT MAY BE BROUGHT
BY LICENSEE MORE THAN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENTS WHICH
GAVE RISE TO THE CAUSE OF ACTION.
5.4 LICENSEE'S INDEMNIFICATION. Licensee shall indemnify and hold harmless
Informix from all claims, losses, and damages which may arise from:
(a) representations or misrepresentations made by Licensee or
Sublicensees;
(b) any warranties granted in excess of those contained in the End User
License Agreement;
(c) inadequate installation, maintenance or support by Licensee or
Sublicensees;
(d) the marketing of the Products by Licensee or Sublicensees;
(e any other act, or failure to act, not in accordance with the terms and
conditions of this Agreement by Licensee or Sublicensees.
SECTION 6. CONFIDENTIAL AND PROPRIETARY INFORMATION.
6.1 CONFIDENTIALITY. Neither party shall use or disclose to any person, either
during the term or after the termination of this Agreement, any Object
Code, technical data or correspondence owned by the other party, or
provided to the other party hereunder, nor disclose any other information
which has been identified as confidential or proprietary by the other
party, nor disclose any information concerning the contents of this
Agreement, except for purposes consistent with the administration and
performance of a party's obligations hereunder, or as required by law. Both
parties shall use the highest degree of care to avoid disclosure of any
confidential or proprietary information of the other party. The obligation
of the parties not to disclose information shall not apply to information
which was already in the public domain, or in the rightful possession of
the other party, at the time of its disclosure, or which is disclosed as a
matter of right by a third party after the execution of this Agreement, or
which passes into the public domain by acts other than the unauthorized
acts of the other party.
6.2 AUTHORIZED DISCLOSURE. Either party may disclose the existence of this
Agreement without the prior consent of the other party.
6.3 INJUNCTIVE RELIEF. In the event of a breach of this Section 6, money or
damages will not be an adequate remedy, and therefore, in addition to any
other legal or equitable remedies, either party shall be entitled to seek
an injunction or other equitable relief against such breach.
SECTION 7. TERM AND TERMINATION
7.1 TERM. The term of this Agreement is specified in Exhibit A, Section 3, of
this Agreement.
7.2 TERMINATION. The Agreement will terminate automatically for just cause:
(a) Immediately upon written notice if the material breach specified
constitutes a
5.
<PAGE> 6
violation of Sections of this Agreement titled, "License Grant and
Restrictions," and "Confidential and Proprietary Information";
(b) Subject to Section 7.2(a) of this Agreement, at the end of thirty (30)
days after written notice specifying a material breach, if the
breaching party fails to cure the breach within that time;
(c) Upon written notice if either party becomes insolvent or bankrupt, or
is unable to meet its obligations when they become due;
(d) Immediately and without notice if a receiver or other liquidating
officer is appointed for substantially all of the assets or business
of either party, or if either party makes an assignment for the
benefit of creditors, or if the rights or interest of either party
under this Agreement becomes an asset under any bankruptcy, insolvency
or reorganization proceeding.
7.3 RESULTS OF TERMINATION.
(a) All licenses and other rights granted by Informix shall become null
and void upon the termination of this Agreement, regardless of the
reason for termination, except: (a) for the End User licenses for
Products previously distributed by Licensee or a Sublicensee, or (b)
for a limited license to Licensee to use the Products for the sole
purpose of fulfilling any contractual obligations for maintenance and
support services to End Users.
(b) The rights to distribute Products already in Licensee's inventory or
in transit as of the effective date of the termination, shall cease on
the earlier of: (a) ninety (90) days after the effective date of
termination, or (b) distribution by Licensee of the last Product to a
Sublicensee. All Products remaining in Licensee's inventory after such
ninety (90) day period shall be returned to Informix. Alternatively,
upon Informix's written request, Licensee shall destroy the remaining
Products and certify in writing to Informix that the Products have
been destroyed.
(c) Within thirty (30) days of termination of this Agreement for any
reason, Licensee shall return to Informix all materials related to the
Products, except that Licensee may retain the minimum number of copies
reasonably necessary to fulfill its contractual obligations for
maintenance and support services. Licensee shall continue to make any
payments due to Informix in connection with Licensee's fulfillment of
such contractual obligations. Within said thirty (30) days, Licensee
shall deliver to Informix a notarized certification signed by an
officer of Licensee that Licensee has complied with the requirements
of this Section 7.3.(c).
(d) Upon termination of this Agreement, all outstanding obligations or
commitments to pay nonrefundable amounts to Informix, if any, shall
become immediately due and payable.
(e) Upon termination of this Agreement, Licensee shall have no right to
receive any compensation, reimbursement or other amounts from
Informix, and shall have no ownership or other right whatsoever in or
to (a) the Products, (b) the User Documentation, (c) any copyrighted
materials relating to the Products, (d) any trademarks, service marks,
trade secrets or other proprietary rights relating to the Products, or
(e) any goodwill that may have developed during the term of this
Agreement.
7.4 SURVIVAL. Regardless of the reason for any termination of this Agreement,
Sections or subsections of this Agreement titled "License Restrictions,"
"Payment, Records and Audit," "Limitation of Warranty and Liability,"
"Confidential and Proprietary Information," "Results of Termination,"
"Governing Law and Venue," and "Effect of Invalid Section" shall survive.
6.
<PAGE> 7
SECTION 8. GENERAL
8.1 INDEPENDENT CONTRACTORS. Informix and Licensee are strictly independent
contractors and shall so represent themselves to all third parties. Neither
party has the right to bind the other in any manner whatsoever and nothing
in this Agreement shall be interpreted to make either party the agent or
legal representative of the other or to make the parties joint venturers.
Licensee specifically agrees that it is not being appointed as a commercial
agent of Informix, and that Licensee shall not register this Agreement, or
itself, under any commercial agency laws. Licensee shall not appoint any
Sublicensees or other representatives to perform, or assist in the
performance of, any services under this Agreement, without the prior
written consent of Informix, except for the performance of sublicensing
agreements authorized in Section 1 of this Agreement.
8.2 ASSIGNMENT. This Agreement shall not be assigned by either party without
the prior written consent of the other party, which shall not be
unreasonably withheld. However, either party may assign this Agreement in
connection with a merger, consolidation, reorganization or sale of
substantially all of the assigning party's assets, provided that the
surviving entity has a net worth equal to or greater than that of the
assigning party prior to such event. Any attempted assignment in
contravention of this Section 8.2, by operation of law or otherwise, shall
be null and void. This Agreement shall bind and inure to the benefit of
successors and assigns. Anything to the contrary notwithstanding, if any
rights to Informix Source Code are granted to Licensee hereunder, or if
Source Code is escrowed under this Agreement, Informix's consent to any
proposed assignment shall be required, and shall be in Informix's sole and
absolute discretion.
8.3 FORCE MAJEURE. Neither party shall be responsible for failure of
performance due to causes beyond its control, including, but not limited to
acts of God or nature, labor disputes, actions of any Government agency and
shortage of materials.
8.4 NOTICES. Any notice shall be delivered by hand, by courier service, or by
registered or certified mail, return receipt requested, postage prepaid.
Notices shall be addressed to the other party at the address given on the
signature block of this Agreement, or to another address which may
subsequently be specified in writing by a party. Notices shall be effective
as of the date personally delivered, by hand or courier service, or for
notices sent by mail, the earlier of the date of receipt, or five (5)
business days after the postmark date.
8.5 ENTIRE AGREEMENT. This Agreement is the complete and exclusive statement of
the understandings of the parties, and supersedes and merges all prior
proposals and understandings, whether oral or written, relating to the
subject matter of this Agreement. This Agreement may not be modified except
in writing, signed by an officer of Informix and a duly authorized
representative of Licensee, and expressly referring to this Agreement.
8.6 PURCHASE ORDERS. Any purchase order or other document issued by Licensee is
for administrative convenience only. In the event of any conflict between
this Agreement and any purchase order, this Agreement shall prevail.
8.7 WAIVER. The waiver of one breach or default shall not constitute the waiver
of any subsequent breach or default, and shall not act to amend or negate
the rights of the parties.
8.8 DEFINITIONS AND SECTION HEADINGS. Singular terms shall be construed as
plural, and vice versa, where the context requires. Section headings are
for purposes of convenience and shall not be considered part of this
Agreement.
8.9 GOVERNING LAW AND VENUE. This Agreement shall be governed by and construed
in accordance with the laws of California, U.S.A. The United Nations
Convention on Contracts for the International Sale of Goods shall not apply
to any transactions under this Agreement, whether between Informix and
Licensee, or between Licensee and any Sublicensee. Licensee hereby submits
to the jurisdiction of the appropriate state or federal courts in
California. Informix at its option may seek to enforce, or prevent a breach
of, any term of this Agreement in the appropriate courts of any state or
country in which the Products are distributed by Licensee or a
7.
<PAGE> 8
Sublicensee, or in which Licensee maintains an office. The prevailing party
in any suit instituted under this Agreement will be entitled to recover all
costs, expenses and reasonable attorneys' fees incurred in such action.
8.10 EFFECT OF INVALID SECTION. If any provision of this Agreement is declared
invalid by any tribunal, then such provision shall automatically be revised
to the minimum extent necessary to the requirements for validity as
declared at such time and, as so adjusted, shall be deemed a provision of
this Agreement as though originally included herein. In the event that the
provision invalidated is of such a nature that it cannot be so revised, the
provision shall be deemed deleted from this Agreement. In either case, the
remaining provisions of this Agreement shall remain in effect.
SECTION 9. DEFINITIONS
"APPLICATION PACKAGE" means the Object Code form of the VAR Program distributed
in conjunction with a Product.
"COMPUTER SYSTEM" means the computer, operating system, peripheral devices and
related software specified in Exhibit A, Section 1, of this Agreement, on which
Licensee has the right to distribute the Application Package.
"DISTRIBUTION TERRITORY" means the geographical region specified in Exhibit A,
Section 2, of this Agreement, in which Licensee is authorized to exercise the
licenses granted under this Agreement.
"DISTRIBUTOR" means a third party appointed by Licensee pursuant to this
Agreement, which is a full-time operator of one or more locations from which
computers, related equipment and/or computer software are distributed to
Resellers.
"EFFECTIVE DATE" means the date of execution of this Agreement by Informix, as
indicated on the signature page.
"END USER" means any third party individual, business or governmental customer
of Licensee of Sublicensee, which acquires one or more copies of the Products
for use in conjunction with the Application Package for personal or internal
business use in accordance with the End User License Agreement, and not for
transfer to others.
"END USER LICENSE AGREEMENT" means the standard Informix agreement accompanying
each copy of the Product, which specifies the terms and conditions of the
license granted by Informix to the End User to use the Product.
"NEW PRODUCT" means the Object Code form of a computer software program,
including all User Documentation: (a) which Informix in its sole discretion
designates as a New Product; (b) which is made generally commercially available
by Informix; and (c) which is marketed by Informix as a separate and distinct
computer program, even if the New Product is in any manner derived from, or is
capable of being integrated or used with, any other Informix product.
"NEW VERSION" means any modification of a Product for which Informix, in its
sole discretion, changes the number to the left of the first decimal point in
the Product version number, e.g., a change from version 3.10.01 to 4.0.
"OBJECT CODE" means the machine-readable computer code which enables the
computer to execute the programs that comprise the Products, which is derived
from the Source Code to the Products by a process generally referred to as
compilation, and which may be stored in a variety of magnetic media or other
formats.
"OPERATING SYSTEM" means a computer program which directs the basic functions of
a computer.
"PRICE LIST" means the Informix suggested retail price list in effect at the
time Licensee orders Products from Informix, and in the country where Licensee
distributes the Products. The Price Lists which shall apply to this Agreement
are as listed in Exhibit B, Section 3, of this Agreement. By its execution of
this Agreement, Licensee acknowledges receipt of a copy of the Price List(s) in
effect on the Effective Date of this Agreement. Informix reserves the right to
change the Price List at any time on ninety (90) days' notice to Licensee.
"PRODUCTS" means the standard proprietary Informix software program packages
listed in Exhibit A, Section 1, of this Agreement, each of which includes: (a)
the Object Code form of the computer programs on magnetic media; (b) User
Documentation; and (c) the End User License Agreement. User Documentation is not
included with the runtime versions of Products.
8.
<PAGE> 9
"RESELLER" means a third party appointed by Licensee pursuant to this Agreement,
which is a full-time operator of one or more retail locations from which
computers, related equipment and/or computer software, including the Application
Package, are distributed solely to End Users.
"SOURCE CODE" means the underlying computer programs: (a) which comprise the
Products; (b) which are readable by human beings when displayed on a monitor or
printed on paper, regardless of the media on which the programs are stored; and
(c) which must be translated, by a process generally known as compilation into
Object Code before the Products can be executed by a computer.
"SUBLICENSEE" means, as the context requires, a Distributor or Reseller which is
granted sublicensing rights under this Agreement.
"TRADEMARK USE POLICY" means the legal guideline manual, as amended from time to
time, which contains the Informix policies and procedures describing the proper
usage of Informix trademarks, service marks, and logos for the purposes
authorized under this Agreement. By its execution of this Agreement, Licensee
acknowledges receipt of a copy of the Trademark Use Policy.
"UPDATE" means any modification of a Product for which Informix, in its sole
discretion, changes a number to the right of the first decimal point in the
Product version number, e.g., a change from version 3.10 to 3.30.
"USER DOCUMENTATION" means the Informix user manual(s) and other related written
materials regarding the proper installation and use of the Products, which are
normally distributed to End Users with the Products.
"VAR PROGRAM" means an application computer program which is developed by
Licensee and is proprietary to Licensee.
SECTION 10. EXHIBITS
Exhibits included and made a part of this Agreement are:
Exhibit A: PRODUCTS & COMPUTER SYSTEMS DISTRIBUTION TERRITORY TERM
Exhibit B: FEES, DISCOUNTS AND PAYMENTS PRICE LISTS
Exhibit C: STANDARD MAINTENANCE SERVICES AND FEES
Exhibit D: EXPORT PROVISIONS
The parties have executed duplicate originals of this Agreement, by their duly
authorized representatives.
LICENSEE:
Caseware, Inc.
- - ------------------------------------------
(Name)
3530 Hyland Ave.
- - ------------------------------------------
(Address)
Costa Mesa, CA 92626
- - ------------------------------------------
(714) 754-0308
- - ------------------------------------------
(Telephone Number)
/s/ Fred B. Cox
- - ------------------------------------------
(Signature)
Fred B. Cox
- - ------------------------------------------
(Printed Name/Title)
9-24-92
- - ------------------------------------------
(Date)
INFORMIX SOFTWARE, INC.
4100 Bohannon Drive
Menlo Park, California 94025
Attn: General Counsel
(415) 926-8300
/s/ David H. Stanley
- - ------------------------------------------
(Signature)
David H. Stanley, Vice President Legal
and General Counsel
- - ------------------------------------------
(Printed Name/Title)
9-24-92
- - ------------------------------------------
(Date)
9.
<PAGE> 10
EXHIBIT A
SECTION 1. PRODUCTS AND COMPUTER SYSTEMS LICENSED.
1.1 AUTHORIZED PRODUCTS. The following Products are licensed for the uses
specified in this Agreement and as described in the User Documentation. The
Products shall be licensed for the U.S. English language only.
C-ISAM
INFORMIX-SQL
RUNTIME INFORMIX-SQL
INFORMIX-ESQL/C
RUNTIME INFORMIX-ESQL/C
INFORMIX-ESQL/COBOL
INFORMIX-ESQL/FORTRAN
INFORMIX-4GL
RUNTIME INFORMIX-4GL
INFORMIX-4GL Rapid Development System
RUNTIME INFORMIX-4GL Rapid Development System
INFORMIX-4GL Interactive Debugger
INFORMIX-NET PC
INFOMRIX-NET TCP/IP
RUNTIME INFORMIX-NET TCP/IP
INFORMIX-NET TURBO TCP/IP
INFORMIX-NET StarLAN
INFORMIX-NET StarGroup
RUNTIME INFORMIX-NET StarGroup
INFORMIX-NET TURBO StarLAN
INFORMIX-STAR TCP/IP
RUNTIME INFORMIX-STAR TCP/IP
INFORMIX-STAR StarGroup
RUNTIME INFORMIX-STAR StarGroup
INFORMIX-QuickStep
INFORMIX Standard Engine
RUNTIME INFORMIX Standard Engine
INFORMIX-TURBO
INFORMIX-OnLine
RUNTIME INFORMIX-OnLine
<PAGE> 11
1.2 AUTHORIZED COMPUTER SYSTEMS. The Products are authorized only for use on
the following Computer Systems: As generally available on the Informix
Product Availability List published from time to time by Informix.
SECTION 2. DISTRIBUTION TERRITORY.
Licensee's Distribution Territory shall be: UNITED STATES AND CANADA
SECTION 3. TERM
The initial term of this Agreement shall be one (1) year from the Effective Date
of this Agreement, unless terminated earlier under the provisions of Section 7
of this Agreement. This Agreement will automatically renew for additional one
(1) year terms unless terminated under the provisions of Section 7 or upon
ninety (90) days' prior written notice by either party.
<PAGE> 12
EXHIBIT B
FEES, DISCOUNTS AND PAYMENTS
SECTION 1. DISCOUNTS/FEES.
BASE DISCOUNTS: Licensee shall receive a [***] discount off the then current
Informix Price List for Products licensed under this Agreement. (Discounts shall
not apply to User Documentation ordered separately, marketing collateral
materials or maintenance.)
SECTION 2. OTHER PRODUCTS, GOODS OR SERVICES.
Any products, goods or services provided by Informix to Licensee for which no
fee or other charge is specified in this Agreement shall be provided at full
retail price, unless Informix, in its sole discretion, elects to offer a lower
price to Licensee.
SECTION 3. PRICE LIST.
The Price List which shall apply to Products licensed under this Agreement is:
[***]
SECTION 4. GENERAL PAYMENT PROVISIONS.
4.1 Licensee shall pay Informix the amounts shown pursuant to this Agreement on
or before the dates such payments become due or within thirty (30) days of
the date of Informix's invoice therefor. In the event Informix determines,
in its sole discretion, that Licensee does not have a sufficient credit
rating to support "net-30" terms, Licensee agrees that until such credit
rating is supported, it shall prepay for Informix Products and/or services.
Unless otherwise expressly provided in this Agreement, all amounts due to
Informix hereunder shall be paid by Licensee to the address specified on
the invoice. Anything to the contrary notwithstanding, Informix may invoice
Licensee thirty (30) or more days prior to the due date of any specified
payment under this Agreement, without the necessity of a purchase order or
other document being issued by Licensee. Issuance of such an invoice shall
not accelerate the due date of the payment, unless the acceleration is
otherwise expressly provided for in this Agreement. In the event Licensee
is overdue in making payments to Informix, Informix may suspend performance
until Licensee has made the required payments.
4.2 CURRENCY AND INTEREST. All payments shall be in United States currency, and
any amount not paid when due shall bear interest at one and one-half
percent (1.5%) per month, or the maximum rate allowed by the governing law
under this Agreement. Costs of conversion, collection and related bank
charges shall be paid by Licensee.
4.3 TAXES, TARIFFS AND TRANSPORTATION COSTS. All present or future domestic or
foreign sales, use, value-added, personal property, withholding, excise or
other similar taxes, all export or import taxes, duties, tariffs or
charges, and all transportation expenses related to the shipment of any
Product or other material to Licensee, or which become due based on any
transaction under this Agreement, shall be paid directly by Licensee or
Licensee shall reimburse Informix following receipt of Informix's invoice
for any such amount paid by Informix. If Licensee supplies Informix with
tax exemption certificates issued by the appropriate taxing authorities
which result in abatement of the tax and refund of previously paid taxes,
then Licensee shall be similarly relieved of liability for such tax, and
shall receive a refund of any amounts previously paid to Informix on
account thereof. Any such refund shall be paid within thirty (30) days of
Informix's receipt of the refund from the appropriate taxing authority. If
an audit of either party by a governmental authority results in an
assessment of any such taxes, tariffs or other charges, Licensee shall pay
the amount due, plus any applicable interest, penalties and other costs, on
demand by Informix.
*Confidential Treatment Requested
<PAGE> 13
EXHIBIT C
STANDARD MAINTENANCE SERVICES AND FEES
SECTION 5. MAINTENANCE SERVICES.
5.1 Licensee agrees to:
(a) purchase maintenance from Informix on the then standard applicable
Informix business terms in effect at the time, for each initial copy
of each Product acquired by Licensee from Informix for internal
development use of the VAR Program;
(b) provide the first level of support and skilled instruction to End
Users regarding the use and installation of the Application Package;
(c) provide, using skilled support technicians experienced in the computer
industry, post delivery technical support and assistance to the End
Users of Licensee and Licensee's Sublicensees which acquire the
Application Package, in order to answer their questions regarding the
use and operation of the Application Package and any technical
problems encountered.
5.2 LATE PAYMENT. If Licensee fails to make any maintenance fee payment when
due, Informix shall have no obligation to provide any further maintenance
coverage until Informix receives payment in full for each payment missed.
<PAGE> 14
EXHIBIT D
EXPORT PROVISIONS
EXPORTS AND RE-EXPORTS. The following export and re-export restrictions apply if
Licensee is authorized to distribute Products under this Agreement outside of
the United States:
(1) Unless explicitly permitted by the Export Administration Regulations (EAR)
of the United States Department of Commerce, or prior written authorization
is given by the Office of Export Licensing:
(a) Licensee and Sublicensees will not export or re-export, either
directly or indirectly, either the Products or any direct product
thereof, to Country Groups Q, S, W, Y, or Z, as identified in the EAR,
or to the People's Republic of China, or to Afghanistan;
(b) Neither Licensee nor Sublicensees will distribute or otherwise make
available either the Products, or any direct product thereof, to, or
for use by or for, any military or police entities of the Republic of
South Africa as identified in the EAR;
(2) Licensee and Sublicensees shall comply with all requirements of the EAR,
the International Traffic in Arms Regulations of the U.S. Department of
State, or any other applicable law or administrative regulation of the
United States Government, as those laws, regulations, and rules are changed
from time to time.
(3) The obligations of this Exhibit D shall survive the termination of this
Agreement, regardless of the reason for termination.
(4) WORLDWIDE DISTRIBUTION RESTRICTION. Informix reserves the right to identify
in writing to Licensee one or more countries where copyright, trademark and
other intellectual property and proprietary rights laws are insufficient to
fully protect Informix's rights therein. In any country so identified by
Informix, Licensee shall not, directly or indirectly, distribute any
Products or exercise any of the rights granted under this Agreement.
Licensee agrees to take all actions and execute all documents reasonably
requested by Informix to ensure: (a) protection, within any country in
which the Products are distributed by Licensee or a Sublicensee, of
Informix's intellectual property rights, proprietary right, trade secrets
and confidential information provided to Licensee hereunder; and (b) the
enforceability of all terms and conditions of this Agreement within each
such country. All such actions shall be at Licensee's and/or Sublicensee's
sole expense.
<PAGE> 15
Contact No. 6458-01
PREMIER VAR TERMS AND CONDITIONS
AMENDMENT #1 TO THE VALUE ADDED RESELLER AGREEMENT
The parties to this Amendment #1 to the Value Added Reseller Agreement effective
September 24, 1992 (the "Agreement") are Informix Software, Inc. ("Informix")
and the party identified in the signature block ("Licensee"), both having
principal places of business at the addresses specified in the signature block
below. This Amendment #1 is made as of the Effective Date hereinafter set forth.
This Amendment #1 is made with reference to Paragraph 8.5 of the Agreement which
provides that modifications of any of the provisions of the Agreement are
binding provided they are contained in a writing signed by an officer of
Informix and a duly authorized representative of Licensee which expressly refers
to the Agreement. All unmodified and remaining terms and conditions of the
Agreement shall remain in full force and effect.
IT IS HEREBY MUTUALLY AGREED AND UNDERSTOOD:
SECTION 6. Paragraph 1.1(a) is hereby restated as follows:
"a. obtain from Informix either the finished "shrink-wrap" version of
Products or serial numbers and keys with distribution masters in order for
Licensee to manufacture Products for: (a) internal development purposes of
the VAR Program; and (b) distribution to Sublicensee and End User in
conjunction with the Application Package. Each complete or partial copy of
the Product manufactured by Licensee shall bear both a written serial
number assigned by Informix in Informix's standard format and Informix's
standard copyright and proprietary data legends, as specified on the
original copy delivered to Licensee by Informix; Licensee may also copy
portions of the Informix installation documentation for inclusion in
Licensee's manuals, provided that (1) Licensee shall preserve any and all
intellectual or proprietary rights notices within such documentation; and
(2) the same shall be produced and/or reproduced by means of quality
consistent with that produced by Informix, using such camera-ready artwork
as Informix may provide."
SECTION 7. Section 3.c of the Agreement is revised to read as follows:
"Licensee shall indemnify and hold harmless Informix from and against any
loss, claim, or damage ensuing to Informix arising from Licensee's failure
or refusal to secure, in the end user license agreement to be employed by
Licensee for licensing to end users, the same protections of Informix's
rights under the Informix End User License Agreement."
SECTION 8. The third sentence of Paragraph 4.2 of the Agreement is hereby
restated as follows:
"Within twenty (20) days of the end of each month, Licensee shall provide
Informix with a copy of the Copy Records for the previous month."
SECTION 9. The words "five percent (5%)" in the tenth line of Section 4.3 of
the Agreement are revised to read [***].
1. *Confidential Treatment Requested
<PAGE> 16
SECTION 10. Paragraph 5.1.b of the Agreement is amended to include, "INFORMIX
MAKES NO WARRANTIES OF ANY TYPE WITH REGARD TO THE MEDIA FOR
PRODUCTS MANUFACTURED BY LICENSEE."
SECTION 11. Paragraph 5.4.d of the Agreement is restated in its entirety to
read, "the manufacturing or marketing of the Products by Licensee or
Sublicensees."
SECTION 12. Exhibit A is amended to the extent that manufacturing rights shall
extend only to the following Products: INFORMIX-SQL; Runtime
INFORMIX-SQL; Runtime INFORMIX-NET TCP/IP; Runtime INFORMIX-NET
StarGroup; Runtime INFORMIX-STAR TCP/IP; Runtime INFORMIX-STAR
StarGroup; Runtime INFORMIX-OnLine;
SECTION 13. Exhibit A, Section 2, is amended to provide that the Licensee's
Distribution Territory is worldwide.
SECTION 14. The words "one (1) year" and "ninety (90) days" in the first and
third lines, respectively, of Exhibit A, Section 3, are revised to
read "three (3) years" and "one hundred and eighty (180) days,"
respectively.
SECTION 15. Exhibit B, Section 1, "Base Discounts" shall be restated as follows:
Nonrefundable Prepayment. Licensee and Informix expressly agree that
Licensee has made a guaranteed, nonrefundable commitment to pay one hundred
and fifteen thousand dollars (US$115,000.00) in fees pertaining to object
code license fees and initial standard support, in accordance with the
schedule below ("Nonrefundable Prepayment").
<TABLE>
<CAPTION>
PAYMENT DUE DATE (ON OR BEFORE) APPLICABLE TO:
------- ---------------------- -------------
<S> <C> <C>
[***] Effective Date Product licenses
[***] Effective Date Initial maintenance
[***] January 15, 1993 Product licenses
[***] April 15, 1993 Product licenses
[***] July 15, 1993 Product licenses
</TABLE>
Any payment below which falls due on a weekend or public holiday shall be
due on the business day immediately preceding the weekend day or public
holiday. In the event Licensee orders Products exceeds the contract
payments actually paid to Informix as specified below, Licensee shall be
liable for payment to Informix of any excess amount. Such amount shall be
immediately due and payable in accordance with Informix's invoice for same
and shall be applied to the next payment due in the payment schedule, if
any. Any payment made beyond the amount due on any of the above-referenced
due dates shall operate to reduce the next due payment dollar for dollar,
but will otherwise not affect due dates.
Contract Maintenance: [***] of the Nonrefundable Prepayment shall be
attributable to initial (first year) maintenance for only Runtime version
Products licensed by Licensee pursuant to this Agreement. The initial
maintenance effective period shall be the
2. *Confidential Treatment Requested
<PAGE> 17
Effective Date of this Agreement through the first anniversary of this
Agreement. Renewal maintenance may not be deducted from any prepayments
made by Licensee.
Discounts. Licensee shall receive pricing on Products licensed under this
Agreement according to the following, until the first anniversary of the
Effective Date of Amendment #1:
(a) a. Licensee shall receive a discount of [***] off of the then-current
Informix Americas Price List for all Development version Products, with
reference to the applicable machine class and user band pricing set forth
therein;
(b) b. For each server platform, Licensee shall pay to Informix a fee to
acquire one (1) license to each of INFORMIX-OnLine and INFORMIX-STAR TCP/IP
(collectively, "Server Software"), respectively, according to the following:
<TABLE>
<CAPTION>
MANUFACTURER/MODEL TOTAL SERVER SOFTWARE PRICE
------------------ ---------------------------
<S> <C>
HP 9000/370, 375, 400 [***]
HP 9000/720, 808 [***]
Sun Sparc (370, 2) [***]
Sun 4/280 [***]
Sun Sparc 4/470, 4/490 [***]
All C platforms not listed above [***]
All D platforms not listed above [***]
All E, F platforms not listed above [***]
</TABLE>
(c) c. For each client platform, Licensee shall acquire at least one (1)
license to each of INFORMIX ESQL/C and INFORMIX-NET TCP/IP (collectively,
"Client Software"), respectively. For each single combination of INFORMIX-ESQL/C
and INFORMIX-NET TCP/IP, Licensee shall pay to Informix a total license fee of
[***].
Any discounts reflected by the above shall not apply to User Documentation
ordered separately, marketing collateral materials or maintenance.
SECTION 16. The following is added to Exhibit B, Section 3:
"It is provided, however, that the applicable price for Products for
delivery in or to the regions of Europe and Africa shall be [***] that of
the [***] Price List, and Licensee shall provide to Informix, as part of
the regular reporting requirements as referenced in Section 4.2 of the
Agreement, detailed reports of sales of licenses to Products within Europe
and Africa, including without limitation the names and complete addresses
of the recipients of such licenses."
3. *Confidential Treatment Requested
<PAGE> 18
Contact No. 6458-01
SECTION 17. Exhibit C, Section 1, "Maintenance Services" is modified to add a
new Paragraph 1.3 as follows:
"If Licensee does not resell its own support services to End Users for the
Products, Licensee may purchase the initial Informix standard maintenance
services for resale to End Users under Informix's then current terms and
conditions."
SECTION 18. This Amendment #1 shall be effective as of the last date signed
below ("Effective Date").
The parties have executed duplicate originals of this Agreement, by their duly
authorized representative.
LICENSEE: INFORMIX:
CASEWARE, INC. INFORMIX SOFTWARE, INC.
3530 Hyland Avenue 4100 Bohannon Dr.
Costa Mesa, California 92626 Menlo Park, California 94025
Attn: Fred Cox Attn: General Counsel
(714) 754-0308 (415) 926-6300
/s/ Fred B. Cox /s/ David H. Stanley
- - ------------------------------------- --------------------------------------
(Signature) (Signature)
Fred B. Cox David H. Stanley, Vice President Legal
- - ------------------------------------- and General Counsel
(Printed Name/Title) --------------------------------------
(Printed Name/Title)
September 24, 1992 9-24-92
- - ------------------------------------- --------------------------------------
(Date) (Date)
4.
<PAGE> 19
Contact No. 6458-02
AMENDMENT #2
This Amendment #2 ("Amendment #2) to the Value Added Reseller License
Agreement effective September 24, 1992 between Informix Software, Inc.
("Informix") and Caseware, Inc. ("Licensee"), as amended by Amendment #1
effective September 24, 1992 ("Amendment #1") ("Agreement"), having respective
principal places of business as set forth in the signature block below, is made
as of the Effective Date hereinafter set forth.
This Amendment #2 is made with reference to Section 8.5 of the Agreement
which provides that modifications of any of the provisions of the Agreement are
binding provided they are contained in a writing signed by a duly authorized
representative of Informix and Licensee which expressly refers to the Agreement.
All unmodified and remaining terms and conditions of the Agreement shall remain
in full force and effect.
IT IS HEREBY MUTUALLY AGREED AND UNDERSTOOD:
SECTION 19. Section 1.1 of the Agreement is hereby restated as follows:
19.1 NONEXCLUSIVE LICENSE GRANT. Informix hereby grants to Licensee,
subject to Paragraph 1.2 of this Agreement, the following
non-transferable, royalty-bearing, nonexclusive licenses which may be
exercised solely within the Distribution Territory. Licensee is hereby
designated as an "Industrial Manufacturer", and is given the right to
use internally and so embed one or more Products in a machine other
than a traditional computer system that the user of the machine is
unable to discern at any time that the Products are in use. For
purposes of this Agreement, as amended by Amendment #2, all references
to "Value Added Reseller" and "VAR", as applicable to Licensee, are
hereby deleted and replaced with "Industrial Manufacturer" Licensee
may:
(a) obtain from Informix either the finished "shrink-wrap" version of
Products or serial numbers and keys with distribution masters in
order for Licensee to manufacture Products for: (a) internal
development purposes of the Industrial Manufacturer program; and
(b) distribution to Sublicensee and End User only as part of the
Application Package. Each complete or partial copy of the Product
manufactured by Licensee shall bear both a written serial number
assigned by Informix in Informix's standard format and Informix's
standard copyright and proprietary data legends, as specified on
the original copy delivered to Licensee by Informix; Licensee may
also copy portions of the Informix installation documentation for
inclusion in Licensee's manuals, provided that (1) Licensee shall
preserve any and all intellectual and/or proprietary rights
notices within such documentation; and (2) the same shall be
produced and/or reproduced by means of quality consistent with
that produced by Informix, using such camera-ready artwork as
Informix may provide.
(b) grant the right for one or more Distributors to distribute and
sublicense the Products, as part of the Application Packages, to
Resellers or End Users.
(c) use the Informix trademarks and/or service marks solely to
promote the distribution of the Products with or as part of the
Application Packages, provided such use conforms to the Informix
Trademark Use Policy.
1.
<PAGE> 20
SECTION 20. The definition of "Application Package" in Section 9 of the
Agreement is hereby restated in its entirety as follows:
"APPLICATION PACKAGE" means the combination of Industrial Manufacturer
hardware, Industrial Manufacturer program and one or more Products.
SECTION 21. Exhibit A, Section 1.1 of the Agreement is hereby restated as
follows:
21.1 AUTHORIZED PRODUCTS. The following Products are licensed for the uses
specified in this Agreement and as described in the User
Documentation. The Products shall be licensed for the U.S. English
language only. Licensee's manufacturing rights shall extend only to
the Products listed hereinbelow.
<TABLE>
<CAPTION>
<S> <C>
PRODUCTS
--------------------------------------
INFORMIX-SQL INFORMIX-NET PC
INFORMIX-SQL Runtime INFORMIX-NET TCP/IP
INFORMIX-NET TCP/IP Runtime
INFORMIX-ESQL/C INFORMIX-NET StarGroup
INFORMIX-ESQL Runtime INFORMIX-NET StarGroup
Runtime
INFORMIX-4GL
INFORMIX-4GL Runtime INFORMIX-STAR TCP/IP
INFORMIX-4GL Rapid Development System INFORMIX-STAR TCP/IP Runtime
INFORMIX-4GL Rapid Development System INFORMIX-STAR StarGroup
Runtime
INFORMIX-4GL Interactive Debugger INFORMIX-STAR StarGroup Runtime
Wingz 1.1
INFORMIX -OnLine
INFORMIX- OnLine Runtime
INFORMIX-SE
INFORMIX-SE Runtime
</TABLE>
MANUFACTURING RIGHTS
--------------------
INFORMIX-SQL Runtime
INFORMIX-ESQL Runtime
INFORMIX-NET TCP-IP Runtime
INFORMIX-NET StarGroup Runtime
INFORMIX-STAR TCP/IP Runtime
INFORMIX-STAR StarGroup Runtime
INFORMIX-OnLine Runtime
2.
<PAGE> 21
Contact No. 6458-02
SECTION 22. Exhibit A, Section 2 of the Agreement is hereby restated in its
entirety as follows:
SECTION 2. DISTRIBUTION TERRITORY. Licensee's Distribution Territory shall
be worldwide for the runtime version only of the Products and United States
and Canada only for the development version of the Products.
SECTION 23. Exhibit B, Section 1, "Base Discounts" is hereby restated in its
entirety as follows:
1. NONREFUNDABLE PREPAYMENT. Licensee and Informix expressly agree that
Licensee has made a guaranteed, nonrefundable commitment to pay [***]
in fees pertaining to object code license fees and initial standard
support, in accordance with the schedule below ("Nonrefundable
Prepayment").
<TABLE>
<CAPTION>
PAYMENT DUE DATE APPLICABLE
------- --------------------------------------- -------------------
<S> <C> <C>
[***] Upon the Effective Date of Amendment #1 Product licenses
[***] Upon the Effective Date of Amendment #1 Initial maintenance
[***] On or before January 15, 1993 Product licenses
[***] On or before April 15, 1993 Product licenses
[***] On or before July 15, 1993 Product licenses
[***] TOTAL
</TABLE>
2. Any payment above which falls due on a weekend or public holiday shall
be due on the business day immediately preceding the weekend day or
public holiday. In the event Licensee orders Products exceeds the
contract payments actually paid to Informix as specified above,
Licensee shall be liable for payment to Informix of any excess amount.
Such amount shall be immediately due and payable in accordance with
Informax's invoice for same and shall be applied to the next payment
due in the payment schedule, if any. Any payment made beyond the
amount due on any of the above-referenced due dates shall operate to
reduce the next due payment dollar for dollar, but will otherwise not
affect due dates.
3. CONTRACT MAINTENANCE. [***] of the Nonrefundable Prepayment shall be
attributable to initial (first year) maintenance for only the runtime
version of the Products licensed by Licensee pursuant to this
Agreement. The initial maintenance effective period shall be the
Effective Date of this Effective Date of this Agreement through the
first anniversary of this Agreement. Renewal maintenance may not be
deducted from any prepayments made by Licensee.
4. DISCOUNTS. Licensee shall receive pricing on Products licensed under
this Agreement according to the following, until September 24, 1993.
(a) Licensee shall receive a discount of [***] off the then-current
Price List for all Products, except as set forth in paragraphs b
and c hereinafter.
(b) For each server platform, Licensee shall pay to Informix a fee to
acquire one (1) license to each of INFORMIX-OnLine Runtime and
INFORMIX-STAR TCP/IP Runtime (collectively, "Server Software"),
respectively, according to the following:
3. *Confidential Treatment Requested
<PAGE> 22
<TABLE>
<CAPTION>
MANUFACTURER /MODEL TOTAL SERVER SOFTWARE PRICE
----------------------------------- ---------------------------
<S> <C>
HP 9000/370, 375, 400 [***]
HP 9000/720, 808 [***]
Sun Sparc (370, 2) [***]
Sun 4/280 [***]
Sun Sparc 4/470, 4/490 [***]
All C platforms not listed above [***]
All D platforms not listed above [***]
All E, F platforms not listed above [***]
</TABLE>
(c) For each client platform, Licensee shall acquire at least one (1)
license to each of INFORMIX-ESQL Runtime, INFORMIX-OnLine
Runtime, and INFORMIX-NET TCP/IP Runtime (collectively, "Client
Software"), respectively. For each single combination of
INFORMIX-ESQL Runtime and INFORMIX-NET TCP/IP Runtime, Licensee
shall pay to Informix a total license fee of [***]
SECTION 24. Exhibit B, Section 3 of the Agreement is hereby restated in its
entirety as follows:
SECTION 3. PRICE LIST.
The price list which shall apply to Products licensed under this Agreement
is: [***]
SECTION 25. Exhibit C, Section 1.3 of the Agreement is hereby deleted in its
entirety.
SECTION 26. This Amendment #2 shall be effective as of the last date signed
below ("Effective Date").
The parties have executed duplicate originals of this Agreement, by their
duly authorized representatives.
4. *Confidential Treatment Requested
<PAGE> 23
LICENSEE: INFORMIX
CASEWARE, INC. INFORMIX SOFTWARE, INC
108 Pacifica 4100 Bohannon Drive
Irvine, California 92718 Menlo Park, California 34025
Attn: Fred Cox Attn: General Counsel
(714) 754-0308 (415) 926-6300
/s/ Fred B. Cox /s/ David H. Stanley
- - ------------------------------------- --------------------------------------
Signature Signature
Fred B. Cox David H. Stanley, Vice President Legal
- - ------------------------------------- and General Counsel
Printed Name/Title -------------------------------------
Printed Name/Title
3/5/93 3-5-93
- - ------------------------------------- --------------------------------------
Date Date
5.
<PAGE> 24
Contact No. 6458-03
AMENDMENT #3
This Amendment #3 ("Amendment #3") to the Value Added Reseller License
Agreement effective September 24, 1992 between Informix Software, Inc.
("Informix") and Caseware, Inc. ("Licensee"), as amended by Amendment #1
effective September 24, 1992 ("Amendment #1") and Amendment #2 effective March
5, 1993 ("Amendment #2") ("Agreement"), having respective principal places of
business as set forth in the signature block below, is made as of the Effective
Date hereinafter set forth.
This Amendment #3 is made with reference to Section 8.5 of the Agreement
which provides that modifications of any of the provisions of the Agreement are
binding provided they are contained in a writing signed by a duly authorized
representative of Informix and Licensee which expressly refers to the Agreement.
All unmodified and remaining terms and conditions of the Agreement shall remain
in full force and effect.
IT IS HEREBY MUTUALLY AGREED AND UNDERSTOOD:
SECTION 27. Exhibit B, Section 1(4) is hereby restated in its entirety as
follows:
"4. DISCOUNTS. Licensee shall receive pricing on Products licensed under
this Agreement according to the following, until September 24, 1995.
a. Licensee shall receive a discount of [***] off the then-current
Price List for all Products, except as set forth in paragraph b
hereinafter.
b. For bundles of INFORMIX-ESQL Runtime Version 5.xx,
INFORMIX-OnLine Runtime Version 5.xx, INFORMIX-STAR TCP/IP
Runtime Version 5.xx and INFORMIX-NET TCP/IP Runtime Version 5.xx
manufactured by Licensee as provided in this Agreement, Licensee
shall pay to Informix a total license fee of [***] per user."
SECTION 28. This Amendment #3 shall be effective as of the last date signed
below ("Effective Date").
The parties have executed duplicate originals of this Agreement, by their
duly authorized representatives.
*Confidential Treatment Requested
1.
<PAGE> 25
Contact No. 6458-03
LICENSEE: INFORMIX:
CASEWARE, INC. INFORMIX SOFTWARE, INC.
108 North Pacifica, 2nd Floor 4100 Bohannon Drive
Irvine, California 92718 Menlo Park, California 34025
Attn: Fred Cox Attn: General Counsel
(714) 453-2200 (415) 926-6300
/s/ Fred B. Cox /s/ David H. Stanley
- - ------------------------------------- --------------------------------------
(Signature) (Signature)
Fred B. Cox David H. Stanley, Vice President Legal
- - ------------------------------------- and General Counsel
(Printed Name/Title) --------------------------------------
(Printed Name/Title)
8-26-93 8-26-93
- - ------------------------------------- --------------------------------------
(Date) (Date)
2.
<PAGE> 26
Contact No. 6458-04
AMENDMENT #4
This Amendment #4 ("Amendment #4") to the Value Added Reseller License
Agreement effective September 24, 1992 between Informix Software, Inc.
("Informix") and Caseware, Inc. ("Licensee"), as amended by Amendment #1
effective September 24, 1992 ("Amendment #1"), Amendment #2 effective March 5,
1993 ("Amendment #2") and Amendment #3 effective August 26, 1993 ("Amendment
#3") ("Agreement"), having respective principal places of business as set forth
in the signature block below, is made as of the Effective Date hereinafter set
forth.
This Amendment #4 is made with reference to Section 8.5 of the Agreement
which provides that modifications of any of the provisions of the Agreement are
binding provided they are contained in a writing signed by a duly authorized
representative of Informix and Licensee which expressly refers to the Agreement.
All unmodified and remaining terms and conditions of the Agreement shall remain
in full force and effect.
IT IS HEREBY MUTUALLY AGREED AND UNDERSTOOD:
SECTION 29. Exhibit B, Section 1.4. is hereby restated in its entirety as
follows:
"4. DISCOUNTS. Licensee shall receive pricing on Products licensed under
this Agreement according to the following, until September 24, 1995.
a. Licensee shall receive a discount of [***] off the then-current
Price List for all Products, except as set forth in paragraph b
hereof.
b. For bundles of INFORMIX-ESQL Runtime Version 5.xx or 6.xx,
INFORMIX-OnLine Runtime Version 5.xx or 6.xx, INFORMIX-STAR
TCP/IP Runtime Version 5.xx or 6.xx and INFORMIX-NET TCP/IP
Runtime Version 5.xx or 6.xx manufactured by Licensee as provided
in this Agreement, Licensee shall pay to Informix a total license
fee of [***] per user."
SECTION 30. This Amendment #4 shall be effective as of the last date signed
below ("Effective Date").
The parties have executed duplicate originals of this Agreement, by their
duly authorized representatives.
1. *Confidential Treatment Requested
<PAGE> 27
Contact No. 6458-04
LICENSEE: INFORMIX:
CASEWARE, INC. INFORMIX SOFTWARE, INC.
108 North Pacifica, 2nd Floor 4100 Bohannon Drive
Irvine, California 92718 Menlo Park, California 34025
Attn: Fred Cox Attn: General Counsel
(714) 453-2200 (415) 926-6300
/s/ Fred B. Cox /s/ John Wolfe
- - ------------------------------------- --------------------------------------
(Signature) (Signature)
Fred B. Cox, President John Wolfe, Corporate Counsel
- - ------------------------------------- --------------------------------------
(Printed Name/Title) (Printed Name/Title)
Aug. 2, 1994 8-2-94
- - ------------------------------------- --------------------------------------
(Date) (Date)
2.
<PAGE> 28
Contact No. 6458-05
AMENDMENT #5
This Amendment #5 ("Amendment #5") to the Value Added Reseller License
Agreement effective September 24, 1992 between Informix Software, Inc.
("Informix") and Continuous Software, previously known as Caseware, Inc.
("Licensee"), as amended by Amendment #1 effective September 24, 1992
("Amendment #1"), Amendment #2 effective March 5, 1993 ("Amendment #2"),
Amendment #3 effective August 26, 1993 ("Amendment #3") and Amendment #4
effective August 2, 1994 ("Amendment #4") (collectively, the "Agreement"),
having respective principal places of business as set forth in the signature
block below, is made as of the Amendment #5 Effective Date hereinafter set
forth.
This Amendment #5 is made with reference to Section 8.5 of the Agreement
which provides that modifications of any of the provisions of the Agreement are
binding provided they are contained in a writing signed by a duly authorized
representative of Informix and Licensee which expressly refers to the Agreement.
All unmodified and remaining terms and conditions of the Agreement shall remain
in full force and effect.
IT IS HEREBY MUTUALLY AGREED AND UNDERSTOOD:
SECTION 31. This Agreement is hereby amended by adding the following Exhibit E.
EXHIBIT E
UNLIMITED USE LICENSE
1. UNLIMITED USE LICENSE. Licensee shall pay to Informix the irrevocable,
nonrefundable amount of $1,800,000 (the "Payment") for the right to
manufacture, embed and distribute an unlimited number of copies of
INFORMIX-OnLine Runtime, INFORMIX-STAR TCP/IP Runtime, INFORMIX-ESQL
Runtime and INFORMIX-NET TCP/IP Runtime ("Unlimited Use Products"), or
their successors, within Licensee's configuration management product
until the fifth anniversary of the Amendment #5 Effective Date
("Unlimited Use License"). Licensee shall pay installments of the
Payment to Informix in accordance with the following schedule:
<TABLE>
<CAPTION>
PAYMENT DUE DATE
---------------- ------------------------------
<S> <C>
$1,200,000.00 Upon execution of Amendment #5
$ 200,000.00 On or before June 15, 1995
$ 200,000.00 On or before September 15, 1995
$ 200,000.00 On or before December 15, 1995
----------------
$1,800,000.00
</TABLE>
The Payment is not inclusive of fees for INFORMIX-Assurance (formerly
"Basic Maintenance") services for the Unlimited Use Products. The
Payment price set forth above is not subject to any Discounts set
forth in the Agreement.
1.
<PAGE> 29
2. ROYALTY PAYMENTS. In the event Licensee's total gross revenues for its
configuration management product during any period up to twelve (12)
months in duration exceed [***] at any time during the term of the
Unlimited Use License, Licensee shall, within ten (10) days of the end
of each month thereafter until the firth anniversary of the Amendment
#5 Effective Date, pay to Informix monthly [***] of the prior month's
revenues for such product ("Royalty Payments"). In addition, Licensee
shall concurrently submit to Informix reasonable documentation to
permit Informix to verify the amount of all such Royalty Payments.
SECTION 32. This Amendment #5 shall be effective as January 4, 1995
("Amendment #5 Effective Date").
The parties have executed duplicate originals of this Agreement, by their
duly authorized representatives.
LICENSEE: INFORMIX:
CONTINUOUS SOFTWARE INFORMIX SOFTWARE, INC.
108 North Pacifica, 2nd Floor 4100 Bohannon Drive
Irvine, California 92718 Menlo Park, California 34025
Attn: John Wark, President Attn: General Counsel
(714) 453-2200 (415) 926-6300
/s/ John Wark /s/ David H. Stanley
- - ------------------------------------- --------------------------------------
Signature (Signature)
John Wark, President and CEO David H. Stanley, Vice President Legal
- - ------------------------------------- and General Counsel
Printed Name/Title --------------------------------------
(Printed Name/Title)
March 30, 1995 3-31-95
- - ------------------------------------- --------------------------------------
Date Date
2. *Confidential Treatment Requested
