<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTER ENDED MARCH 31, 2000 COMMISSION FILE NUMBER: 000-26273
PRIMUS KNOWLEDGE SOLUTIONS, INC.
(Exact name of Registrant as specified in its charter)
WASHINGTON 91-1350484
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1601 Fifth Avenue, Suite 1900
Seattle, Washington 98101
(Address of principal executive offices)
(206) 292-1000
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days:
Yes [X] No [ ]
As of May 9, 2000 there were 17,652,574 shares of the Registrant's Common Stock
outstanding.
<PAGE>
Primus Knowledge Solutions, Inc.
Form 10-Q
March 31, 2000
INDEX
<TABLE>
<CAPTION>
PART I. FINANCIAL INFORMATION PAGE
----
<S> <C> <C>
ITEM 1. Condensed Consolidated Financial Statements (Unaudited)
. Condensed Consolidated Balance Sheets as of March 31, 2000 and December 31, 1999..... 3
. Condensed Consolidated Statements of Operations for the three months
ended March 31, 2000 and March 31, 1999.............................................. 4
. Condensed Consolidated Statement of Shareholders' Equity for the three months
ended March 31, 2000................................................................. 5
. Condensed Consolidated Statements of Cash Flows for the three months
ended March 31, 2000 and March 31, 1999.............................................. 6
. Notes to Condensed Consolidated Financial Statements................................. 7
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of Operations... 11
ITEM 3. Quantitative and Qualitative Disclosures About Market Risk.............................. 24
PART II. OTHER INFORMATION
ITEM 2. Change in Securities and Use of Proceeds................................................ 25
ITEM 6. Exhibits and Reports on Form 8-K........................................................ 26
</TABLE>
Page 2 of 27
<PAGE>
PART I. FINANCIAL INFORMATION
Item 1. Condensed Consolidated Financial Statements
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands)
<TABLE>
<CAPTION>
March 31, 2000 December 31, 1999
-------------- -----------------
(unaudited)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 14,737 $ 17,602
Short-term investments 31,477 37,055
Accounts receivable, net 9,088 8,479
Note receivable 2,099 -
Prepaid expenses and other current assets 940 993
-------- --------
Total current assets 58,341 64,129
Property and equipment, net 3,257 2,853
Other assets 373 424
-------- --------
Total assets $ 61,971 $ 67,406
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 2,690 $ 1,415
Accrued and other liabilities 2,624 4,190
Compensation-related accruals 3,261 3,249
Current portion of long-term debt - 319
Deferred revenue, including related-party amounts of $572
and $1,516 at March 31, 2000 and December 31, 1999, respectively 9,544 10,418
-------- --------
Total current liabilities 18,119 19,591
-------- --------
Long-term debt, net of current portion - 60
Redeemable convertible preferred stock - 9,054
Shareholders' equity:
Common stock 441 404
Additional paid-in-capital 103,546 92,891
Deferred stock-based compensation (95) (114)
Accumulated other comprehensive loss (178) (110)
Accumulated deficit (59,862) (54,370)
-------- --------
Total shareholders' equity 43,852 38,701
-------- --------
Total liabilities and shareholders' equity $ 61,971 $ 67,406
======== ========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
Page 3 of 27
<PAGE>
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except share and per share data)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended March 31,
----------------------------
2000 1999
----------- --------------
<S> <C> <C>
Revenues:
License, including amounts from
related parties of $1,038 and $695
for the three months ended March 31,
2000 and 1999, respectively $ 7,180 $ 3,259
Services 3,278 1,319
----------- ----------
Total revenues 10,458 4,578
----------- ----------
Cost of revenues:
License 323 160
Services 2,608 1,335
----------- ----------
Total cost of revenues 2,931 1,495
----------- ----------
Gross profit 7,527 3,083
Operating expenses:
Sales and marketing 6,826 3,728
Research and development 4,011 2,065
General and administrative 2,300 1,320
Merger related costs 505 -
----------- ----------
Total operating expenses 13,642 7,113
----------- ----------
Loss from operations (6,115) (4,030)
Other income 786 34
Other expense (131) (7)
----------- ----------
Loss before income taxes (5,460) (4,003)
Income tax expense 32 27
----------- ----------
Net loss (5,492) (4,030)
Preferred stock accretion (43) (388)
----------- ----------
Net loss available to common
shareholders $ (5,535) $ (4,418)
=========== ==========
Basic and diluted net loss per common share $(0.32) $(0.88)
=========== ==========
Shares used in computing basic and diluted
net loss per common share 17,273,710 5,022,225
=========== ==========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
Page 4 of 27
<PAGE>
CONDENSED CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
(In thousands, except share data)
(Unaudited)
<TABLE>
<CAPTION>
Accumulated
Common stock Additional Deferred other Total
--------------------- paid-in stock-based comprehensive Accumulated shareholders'
Shares Par value capital compensation loss deficit equity
---------- --------- ----------- ------------- -------------- ------------ -------------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at December 31,
1999.............................. 16,180,886 $404 $ 92,891 $(114) $(110) $(54,370) $38,701
Preferred stock accretion........... -- -- (43) -- -- -- (43)
Exercise of stock options
and warrants...................... 515,497 14 1,446 -- -- -- 1,460
Stock options and warrants
issued in exchange
for services...................... -- -- 178 -- -- -- 178
Deferred stock-based
compensation...................... -- -- -- 19 -- -- 19
Conversion of 2order.com
redeemable convertible
preferred stock................... 916,918 23 9,074 -- -- -- 9,097
Comprehensive loss:
Foreign currency
translation loss................. -- -- -- -- (6) -- --
Unrealized loss on
short-term investments........... -- -- -- -- (62) -- --
Net loss........................... -- -- -- -- -- (5,492)
Total comprehensive
loss.......................... -- -- -- -- -- -- (5,560)
----------------------------------------------------------------------------------------------
Balance at March 31,
2000.............................. 17,613,301 $441 $103,546 $ (95) $(178) $(59,862) $43,852
==============================================================================================
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
Page 5 of 27
<PAGE>
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended March 31,
----------------------------
2000 1999
------------ ------------
<S> <C> <C>
Cash flows from operating activities:
Net loss $(5,492) $(4,030)
Adjustments to reconcile net loss to net cash used in
operating activities:
Option and warrant expense 197 -
Depreciation and amortization 1,110 235
Changes in assets and liabilities:
Accounts receivable (609) 914
Prepaid expenses and other current assets 53 56
Note receivable (2,099) -
Other assets 51 2
Accounts payable and accrued liabilities (291) (277)
Compensation-related accruals 12 (342)
Deferred revenue (874) (795)
------- -------
Net cash used in operating activities (7,942) (4,237)
------- -------
Cash flows from investing activities:
Purchases of short-term investments (5,080) (1,773)
Proceeds from maturity of short-term investments 10,596 2,833
Purchases of property and equipment (1,514) (220)
------- -------
Net cash provided by investing activities 4,002 840
------- -------
Cash flows from financing activities:
Proceeds from issuance of long-term debt 600
Repayments on long-term debt (379) (92)
Proceeds from the issuance of common stock, net 1,460 1,478
Repurchase of common stock (103)
Proceeds from issuance of preferred stock - 1,200
------- -------
Net cash provided by financing activities 1,081 3,083
Effect of exchange rate changes on cash (6) (4)
------- -------
Net decrease in cash and cash equivalents (2,865) (318)
Cash and cash equivalents at beginning of period 17,602 7,708
------- -------
Cash and cash equivalents at end of period $14,737 $ 7,390
======= =======
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
Page 6 of 27
<PAGE>
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
MARCH 31, 1999
(Unaudited)
NOTE 1. DESCRIPTION OF BUSINESS AND BASIS OF PRESENTATION
Description of the Company
Primus Knowledge Solutions, Inc. (Primus) is a leading provider of eCRM software
that enables companies to maximize the value of customer interactions across
multiple communication channels and business processes thereby enhancing
customer relationships. Our solution addresses the unique challenges faced by
companies implementing an e-business strategy. Sales are primarily generated
through a domestic and European field sales organization. Products sold
domestically and internationally are developed by us at our Seattle
headquarters. We were incorporated in the state of Washington in 1986.
Basis of Presentation
The condensed consolidated financial statements include the accounts of Primus
and our wholly-owned subsidiaries, including our foreign subsidiary, Primus UK
Ltd. All significant intercompany balances and transactions have been
eliminated.
In December 1999 and January 2000, Primus merged with Imparto Software
Corporation (Imparto) and 2order.com, Inc. (2order.com), respectively, in
combinations accounted for as pooling-of-interests. The condensed consolidated
financial statements and notes thereto for all periods prior to the combinations
are restated to include the accounts and results of operations of Imparto and
2order.com.
Unaudited Interim Financial Information
The accompanying unaudited consolidated financial statements have been prepared
in conformity with generally accepted accounting principles for interim
financial information and with the instructions for Form 10-Q and Article 10 of
Regulation S-X. Accordingly, certain information and footnote disclosures
normally included in financial statements prepared in accordance with generally
accepted accounting principles have been condensed, or omitted, pursuant to the
rules and regulations of the Securities and Exchange Commission (SEC). In our
opinion, the statements include all adjustments necessary (which are of a normal
and recurring nature) for the fair presentation of the results of the interim
periods presented. These financial statements should be read in conjunction
with our audited financial statements for the year ended December 31, 1999
included in our Annual Report on Form 10-K filed with the SEC. The results of
operations for any interim period are not necessarily indicative of the results
of operations for any other interim period or for a full fiscal year.
NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Revenue Recognition
We have recognized software license revenue in accordance with AICPA Statement
of Position 97-2, "Software Revenue Recognition," which provides specific
industry guidance and stipulates that revenue recognized from software
arrangements is to be allocated to each element of the arrangement based on the
relative fair value of the elements. The AICPA recently issued its Statement of
Position 98-9, which provides certain amendments to its Statement of Position
97-2 and is effective for transactions entered into beginning January 1, 2000.
The implementation of this latest AICPA pronouncement did not materially impact
our revenue recognition practices.
Page 7 of 27
<PAGE>
We currently recognize license revenue over the implementation period if
implementation services are included in the original license arrangement. As a
result, even where we have a signed license agreement for the purchase of our
software and have shipped the software, license revenue recognition depends on
whether we have begun implementation. For license agreements under which we have
no implementation responsibility, or where implementation is not considered to
be essential to the functionality of the software, we generally recognize
revenue from the agreement upon shipping the software.
In addition, there may be arrangements where we are contractually restricted
from invoicing a customer until a later date. In these cases, we will record
the accounts receivable and recognize the revenue when we invoice the customer,
which is generally 30-60 days prior to the due date.
Our services revenue consists of consulting, training and maintenance and
support fees. We provide consulting and training services relating to our
products on a time-and-materials basis under installation services agreements
with our customers. We provide maintenance and support services to our customers
under renewable one-year maintenance and support agreements, which we price as a
percentage of our license fees.
For new customers, we generally enter into services agreements to implement our
software. Most of our new customers begin implementation within 30 to 60 days of
signing a license agreement. Once commenced, implementation of our products
typically ranges from 30 to 45 days, an improvement from prior years when
installations took 60 to 90 days. Examples of situations under which we have no
implementation responsibility include additional license sales to existing
customers or customers who elect to use internal or third party resources to
implement the software.
NOTE 3. BUSINESS COMBINATION
On January 21, 2000, pursuant to an Agreement and Plan of Merger, dated as of
January 8, 2000, we merged with 2order.com, Inc., a Georgia corporation
(2order.com). As a result of the merger, we issued 1,506,127 shares of our
common stock, $.025 par value per share, in exchange for all issued and
outstanding capital stock of 2order.com and assumed all outstanding options and
warrants of 2order.com, which represents, on a converted basis, 150,378 shares
of our common stock. The Merger was accounted for as a pooling-of-interests
business combination, and accordingly, our historical consolidated financial
statements are presented in this report as restated to include the accounts and
results of operations of 2order.com. 2order.com had the same fiscal year-end as
Primus and there were no adjustments to conform accounting methods or eliminate
intercompany transactions. In connection with the merger, we incurred
approximately $505,000 in merger-related costs primarily for investment banking,
legal and other professional fees during the three months ended March 31, 2000.
Results of operations previously reported by the separate companies and the
combined amounts presented in the accompanying condensed consolidated financial
statements are as follows:
<TABLE>
<CAPTION>
Three Month Ended March 31,
--------------------------------
2000 1999
------- -------
(In thousands)
<S> <C> <C>
Revenues:
Primus $ 9,720 $ 3,973
2order 738 605
------- -------
$10,458 $ 4,578
======= =======
Net loss:
Primus $(4,402) $(3,037)
2order (1,090) (993)
------- -------
$(5,492) $(4,030)
======= =======
</TABLE>
Page 8 of 27
<PAGE>
NOTE 4. EARNINGS PER SHARE
In accordance with SFAS No. 128, "Earnings Per Share," we reported both basic
and diluted net loss per common share for each period presented. Basic net loss
per common share is computed on the basis of the weighted-average number of
common shares outstanding for the year. Diluted net loss per common share is
computed on the basis of the weighted-average number of common shares plus
dilutive potential common shares outstanding. Dilutive potential common shares
are calculated under the treasury stock method. Securities that could
potentially dilute basic income per share consist of outstanding stock options
and warrants and for certain periods, convertible preferred stock. Net loss
available to common shareholders includes net loss and preferred stock
accretion. As we had a net loss available to common shareholders in each of the
periods presented, basic and diluted net loss per common share are the same. All
outstanding warrants, stock options, and convertible preferred stock to acquire
common shares were excluded from the computation of diluted earnings per share
at March 31, 2000 and March 31, 1999 because the effect was anti-dilutive.
Potential common shares consisted of options and warrants to purchase 4,263,385
and 3,240,375, and preferred stock convertible into zero and 6,175,244 common
shares at March 31, 2000 and 1999, respectively.
NOTE 5. COMPREHENSIVE LOSS
The following table reconciles net loss as reported to total comprehensive loss
for the three months ended March 31, 2000 and 1999:
<TABLE>
<CAPTION>
Three Months Ended
March 31,
------------------
2000 1999
------- --------
(In thousands)
<S> <C> <C>
Net loss $(5,492) $(4,030)
Other comprehensive income:
Unrealized currency loss (6) (4)
Unrealized loss on securities
available-for-sale (62) --
------- -------
Total comprehensive loss $(5,560) $(4,034)
======= =======
</TABLE>
NOTE 6. BUSINESS SEGMENT INFORMATION
Primus and our subsidiaries are principally engaged in the design, development,
marketing and support of our eService family of eProducts: eSupport, eSales and
eMarketing. Substantially all revenues result from the licensing of our software
products and related consulting and customer support (maintenance) services.
Our chief operating decision-maker reviews financial information presented on a
consolidated basis, accompanied by disaggregated revenue information.
The majority of our revenues are derived from customers in the United States.
Our international sales are principally in Europe and Japan. The following
geographic information is presented for quarters ended March 31, 2000 and 1999:
Page 9 of 27
<PAGE>
<TABLE>
<CAPTION>
Three Months Ended March 31,
---------------------------------------
2000 1999
----------------- ----------------
(In thousands)
<S> <C> <C>
United States $ 8,703 $3,157
International 1,755 1,421
----------------- ----------------
Total revenues $10,458 $4,578
================= ================
</TABLE>
Page 10 of 27
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
FORWARD-LOOKING STATEMENTS
This document contains certain forward-looking statements within the meaning of
Section 21E of the Securities Exchange Act of 1934 and Section 27A of the
Securities Act of 1933. These forward-looking statements involve risks and
uncertainties, including, but not limited to, those identified in the section of
this Form 10-Q entitled "Factors That May Affect Results Of Operations and
Financial Condition," which may cause actual results to differ materially from
those discussed in such forward-looking statements. When used in this document,
the words "believes," "expects," "anticipates," "intends," "plans" and similar
expressions, are intended to identify certain of these forward-looking
statements. However, these words are not the exclusive means of identifying
such statements. In addition, any statements that refer to expectations,
projections or other characterizations of future events or circumstances are
forward-looking statements. The cautionary statements made in this document
should be read as being applicable to all related forward-looking statements
wherever they appear in this document. Factors that could cause or contribute
to such differences include those discussed below, as well as those discussed in
our Annual Report on Form 10-K, a copy of which is on file at the Securities and
Exchange Commission. We undertake no obligation to release publicly the results
of any revision to these forward-looking statements that may be made to reflect
events or circumstances occurring subsequent to the filing of this Form 10-Q
with the SEC. Readers are urged to review and carefully consider the various
disclosures made by us in this report and in our other reports filed with the
SEC that attempt to advise interested parties of the risk and factors that may
affect our business.
OVERVIEW
We are a leading provider of eCRM software that enables companies to maximize
the value of customer interactions across multiple communication channels and
business processes thereby enhancing customer relationships. Our solution
addresses the unique challenges faced by companies implementing an e-business
strategy. Our product suite is designed to be a comprehensive software solution
that enables companies to effectively manage all major points of customer
contact, from marketing to sales to customer support, and create value for both
Primus and the customer with every interaction. Our software solutions can be
deployed as a suite or as individual products, depending on our preference
and/or immediate need.
To remain competitive in today's business environment, companies are
implementing e-business initiatives to enable them to interact with their
customers using both traditional and e-business communication channels,
including the Internet, in a way that will maximize the value of each customer
interaction. More specifically, these initiatives allow companies to market
their products, transact sales, manage customer service, and interact and
communicate with customers, partners and suppliers using the Internet and other
electronic means. Ultimately, each customer interaction must be maximized for
purposes of customer retention, cross-sell and up-sell opportunities, and
customer satisfaction to enhance customer relationships.
RECENT DEVELOPMENTS
In April 2000, we announced the release of our latest product, Primus eServer
4.0. This is a significant upgrade to our software suite that provides
enhancements to our solution offerings in the areas of security, customization
and database support. The Primus eServer product supports the relational
database systems by Oracle and Microsoft SQL Server.
Page 11 of 27
<PAGE>
RESULTS OF OPERATIONS FOR THE THREE MONTHS ENDED MARCH 31, 2000 AND 1999
The following table sets forth certain financial data, derived from our
unaudited statements of operations, as a percentage of total revenues for the
periods indicated. The operating results for the three months ended March 31,
2000 and 1999 are not necessarily indicative of the results that may be expected
for any future period.
<TABLE>
<CAPTION>
Three Months Ended March 31,
----------------------------
2000 1999
-------- --------
<S> <C> <C>
Revenues:
License 68.7% 71.2%
Services 31.3 28.8
------ ------
Total revenues 100.0 100.0
------ ------
Cost of revenues:
License 3.1 3.5
Services 24.9 29.2
------ ------
Total cost of revenues 28.0 32.7
------ ------
Gross profit 72.0 67.3
------ ------
Operating expenses:
Sales and marketing 65.3 81.4
Research and development 38.4 45.1
General and administrative 22.0 28.8
Merger related costs 4.8 --
------ ------
Total operating expenses 130.5 155.3
------ ------
Loss from operations (58.5) (88.0)
Other income 7.5 .7
Other expense (1.3) (.1)
------ ------
Loss before income taxes (52.3) (87.4)
Income tax expense .3 .6
------ ------
Net loss (52.6)% (88.0)%
====== ======
</TABLE>
Revenues
We derive our revenue from the sale of software licenses and related services
including support and maintenance contracts. Revenue was approximately $10.5
million and $4.6 million for the three months ended March 31, 2000 and 1999,
respectively, representing an increase in the first quarter of 2000 of
approximately $5.9 million, or 128%, over the comparable quarter of the prior
year.
License Revenue. License revenue was approximately $7.2 million and $3.3 million
for the three months ended March 31, 2000 and 1999, respectively, representing
an increase in the first quarter of 2000 of approximately $3.9 million, or 120%,
over the comparable quarter of the prior year. The increase was due to
increased sales of our eCRM products and increases in both the size and
productivity of our sales force. International license revenues were
approximately $1.4 million and $1.2 million for the three months ended March 31,
2000 and 1999, respectively. Sales personnel totaled 72 and 59 as of March 31,
2000 and 1999, respectively.
Services Revenue. Services revenue was approximately $3.3 million and $1.3
million for the three months ended March 31, 2000 and 1999, respectively,
representing an increase in the first quarter of 2000 of approximately $2.0
million, or 149%, over the comparable quarter of the prior year. Maintenance and
support contract revenues
Page 12 of 27
<PAGE>
increased approximately $1.1 million in the first quarter of 2000 over the
comparable quarter of the prior year. Consulting fees increased approximately
$891,000 in the first quarter of 2000 over the comparable quarter of the prior
year.
Services revenue represented 31.3% and 28.8% of our total revenue for the three
months ended March 31, 2000 and March 31, 1999, respectively. We expect the
proportion of services revenue to total revenue to fluctuate in the future,
depending in part on our customers' use of third-party consulting and
implementation services providers.
Cost of Revenue
Cost of License Revenue. Cost of license revenue includes royalties and fees
paid to third parties under license arrangements and costs related to media and
duplication of our products and manuals. Cost of license revenue was
approximately $323,000 and $160,000 for the three months ended March 31, 2000
and 1999, respectively. Cost of license revenue as a percentage of license
revenue was 4.5% and 4.9% for the three months ended March 31, 2000 and 1999,
respectively. We anticipate that our cost of license revenue will continue to
fluctuate in absolute dollars and as a percent of license revenue, which has
varied in the past due to the expected increase in the volume of software
product sales and the type of royalty agreements in place at the time.
Cost of Services Revenue. Cost of services revenue includes personnel and other
costs related to professional services and customer support. Cost of services
revenue was approximately $2.6 million and $1.3 million for the three months
ended March 31, 2000 and 1999, respectively. While cost of services revenue
increased approximately $1.3 million, or 95%, for the three months ended March
31, 2000 compared to the same period in 1999, cost of services as a percentage
of service revenues decreased from 101% to 80% for the same period. The decrease
in cost of services revenue as a percentage of services revenue was primarily
due to higher utilization of consulting-services personnel and growth of
maintenance revenue. Professional services and customer support personnel
totaled 61 and 45 for the three months ended March 31, 2000 and 1999,
respectively.
Operating Expenses
Sales and Marketing. Sales and marketing expenses consist primarily of salaries,
bonuses and commissions earned by sales and marketing personnel, travel and
costs associated with marketing programs, such as trade shows, public relations
and new product launches. Sales and marketing expenses were approximately $6.8
million and $3.7 million for the three months ended March 31, 2000 and 1999,
respectively. Sales and marketing expenses increased approximately $3.1 million,
or 83% for the three months ended March 31, 2000 as compared to the three months
ended March 31, 1999. This increase is primarily due to the continued growth in
the number of our sales and marketing personnel as well as an increase in
commissions as a result of revenue growth. Sales and marketing employees totaled
89 and 76 for the three months ended March 31, 2000 and 1999, respectively.
Sales and marketing expenses as a percentage of total revenue was 65.3% and
81.4% for the three months ended March 31, 2000 and 1999, respectively. We
believe that a significant increase in our sales and marketing efforts is
essential for us to maintain market position and further increase market
acceptance of our products. Accordingly, we anticipate that we will continue to
invest significantly in sales and marketing for the foreseeable future, and the
dollar amount of sales and marketing expenses will increase in future periods,
although they may decline as a percentage of total revenue.
Research and Development. Research and development expenses consist primarily of
salaries and benefits for software developers, program managers and quality
assurance personnel and payments to outside contractors. Research and
development expenses were approximately $4.0 million and $2.1 million for the
three months ended March 31, 2000 and 1999, respectively. Research and
development expenses increased approximately $1.9 million, or 94%, for the three
months ended March 31, 2000 compared to the three months ended March 31, 1999.
The increase was primarily due to increased hiring of software developers and
quality-assurance staff to support development of our new products, enhancements
to our existing products and an increase in
Page 13 of 27
<PAGE>
compensation levels for development and quality-assurance personnel. Research
and development personnel totaled 99 and 73 for the three months ended March 31,
2000 and 1999, respectively. Research and development expenses as a percentage
of total revenue was 38.4% and 45.1% for the three months ending March 31, 2000
and March 31, 1999, respectively. We believe that a significant increase in our
research and development investment is essential for us to maintain our market
position, to continue to expand our eCRM software and to develop additional
applications. Accordingly, we anticipate that we will continue to invest
significantly in product research and development for the foreseeable future,
and research and development expenses are likely to increase in future periods.
As such, we expect research and development costs as a percentage of total
revenue to fluctuate. In the development of our new products and enhancements of
existing products, the technological feasibility of our software was not
established until substantially all product development was complete.
Accordingly, software development costs eligible for capitalization were
insignificant, and all costs related to internal research and development have
been expensed as incurred.
General and Administrative. General and administrative expenses consist
primarily of salaries, benefits and related costs for executive, finance,
administrative and information services personnel. General and administrative
expenses were approximately $2.3 million and $1.3 million for the three months
ended March 31, 2000 and 1999, respectively. General and administrative
expenses increased approximately $980,000, or 74%, for the three months ended
March 31, 2000 compared to the three months ended March 31, 1999. The increase
in general and administrative expenses was primarily the result of our hiring
additional executive, finance, and administrative personnel to support the
growth of our business during these periods as well as an increase in legal and
professional fees associated with becoming a public company. General and
administrative employees totaled 33 and 28 for the three months ended March 31,
2000 and 1999. General and administrative expenses as a percentage of total
revenue were 22.0% and 28.8% for the three months ended March 31, 2000 and 1999,
respectively. The fluctuation of general and administrative expense as a
percentage of total revenue reflects the building of our infrastructure during
these periods. We believe that our general and administrative expenses will
continue to increase as a result of the continued expansion of our
administrative staff and the expenses associated with being a public company,
including, but not limited to, annual and other public-reporting costs,
directors' and officers' liability insurance, investor-relations programs and
professional-services fees.
Merger Related Costs. Merger related costs were approximately $505,000 for the
three months ended March 31, 2000. These costs were recorded in connection with
the January 2000 merger with 2order.com that was accounted for under the
pooling-of-interests method of accounting.
Other Income, Net. Other income (expense) was $655,000 and $27,000 for the three
months ended March 31, 2000 and 1999, respectively. The variances from period to
period were due to fluctuations in the average combined cash and cash
equivalents and short-term investment balances. We expect to continue to yield
investment income on our average balance of combined cash and cash equivalents
and short-term and long-term investments at an average rate comparable to that
experienced in 1999 and the first quarter of 2000.
Income Taxes. We have not recorded income tax benefits related to the net
operating losses in 1999 and the first quarter of 2000 as a result of the
uncertainties regarding the realization of the net operating losses. Tax
expense recorded in both the first quarter of 2000 and 1999 primarily relates to
tax expense from our foreign operations.
Liquidity and Capital Resources
As of March 31, 2000, we had cash and cash equivalents of approximately $14.7
million, a decrease from $17.6 million of cash and cash equivalents held as of
December 31, 1999. As of March 31, 2000, we had short-term investments of
approximately $31.5 million, representing a decrease of approximately $5.6
million from investments held as of December 31, 1999. As of March 31, 2000,
our working capital was approximately $40.2 million compared to approximately
$44.5 million at December 31, 1999.
Our accounts receivable was approximately $9.1 million and $8.5 million as of
March 31, 2000 and December
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<PAGE>
31, 1999, respectively, representing an increase of approximately $600,000, or
7.2%. This increase was principally a result of an increase in revenues during
the recent quarter, offset in part by cash collections during the three months
ended March 31, 2000. Days' sales outstanding ("DSO") in accounts receivable was
78 days and 85 days as of March 31, 2000 and December 31, 1999, respectively. We
expect that DSO will fluctuate significantly in future quarters.
Our total liabilities were approximately $18.1 million as of March 31, 2000 and
$28.7 million as of December 31, 1999, including our redeemable preferred stock,
representing a decrease of $10.6 million, or 37%. This decrease was principally
the result of the conversion of approximately $9.1 million in redeemable
convertible preferred stock to common stock in connection with the merger of
2order.com in the first quarter of 2000.
Our operating activities resulted in net cash outflows of approximately $7.9
million for the three months ended March 31, 2000. Adjustments to the $5.5
million net loss to reconcile to cash used in operating activities includes
approximately $1.1 million for depreciation and amortization, approximately $2.1
million related to the transfer of an accounts receivable balance to a note
receivable and approximately $900,000 for the decrease in deferred revenue. Net
cash used in operating activities was approximately $4.2 million for the three
months ended March 31, 1999.
Investing activities provided cash of approximately $4.0 million for the three
months ended March 31, 2000. Investing activities for this period consisted
primarily of approximately $10.6 million in proceeds from the maturity of short-
term investments offset by approximately $5.1 million in purchases of short-term
investments. Further activities included the purchase of approximately $1.5
million in capital equipment. Net cash provided by investing activities was
approximately $840,000 for the three months ended March 31, 1999.
Financing activities provided cash of approximately $1.1 million for the three
months ended March 31, 2000. Financing activities for this period included
approximately $1.5 million in proceeds from the exercise of stock options and
warrants offset by approximately $379,000 in repayments of debt obligations.
Net cash provided by financing activities was approximately $3.1 million for the
three months ended March 31, 1999.
We currently anticipate that we will continue to experience significant growth
in our operating expenses for the foreseeable future as we:
. enter new markets for our products and services
. increase research and development spending
. increase sales and marketing activities
. develop new distribution channels
. improve our operational and financial systems
. broaden our professional services capabilities
Such operating expenses will consume a material amount of our cash. We believe
that our existing cash and cash equivalents and available line of credit will be
sufficient to meet our anticipated cash needs for working capital and capital
expenditures for at least the next twelve months. Thereafter, we may require
additional funds to support our working capital requirements or for other
purposes and may seek to raise such additional funds through public or private
equity financing or from other sources. We may not be able to obtain adequate
or favorable financing at that time. Any financing we obtain may dilute our
current shareholders' ownership interest in Primus.
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<PAGE>
Recently Issued Accounting Pronouncements
In March 2000 the SEC issued Staff Accounting Bulletin No. 101A (SAB 101A). SAB
101A delays the effective date of Staff Accounting Bulletin No. 101 (SAB 101)
"Revenue Recognition in Financial Statements," to the second quarter for fiscal
years beginning between December 15, 1999 and March 16, 2000. SAB 101 provides
guidance on revenue recognition and the SEC staff's views on the application of
accounting principles to selected revenue recognition issues. We will adopt the
provisions of SAB 101 in the second quarter of 2000 and anticipate that such
adoptions will not have a material impact on our consolidated financial
statements.
In March 2000, the Financial Accounting Standards Board (FASB) issued
Interpretation No. 44, Accounting for Certain Transactions Involving Stock
Compensation, an interpretation of APB Opinion No. 25. Interpretation No. 44
clarifies the application of APB Opinion 25, Accounting for Stock Issued to
Employees, for issues, among others, regarding; (a) the definition of employees,
(b) defining non-compensatory plans, (c) modifications to previously fixed stock
option awards, and (d) accounting for an exchange of stock compensation awards
in a business combination. We will adopt Interpretation No. 44 in the third
quarter of 2000 and do not expect the adoption of the Interpretation to have a
material impact on the consolidated financial statements.
Factors Affecting Our Future Operating Results
You should carefully consider the risks and uncertainties described below and
the other information in this report. They are not the only ones we face.
Additional risks and uncertainties that we are not aware of or that we currently
deem immaterial also may impair our business. If any of the following risks
actually occur, our business, financial condition and operating results could be
materially adversely affected and the trading price of our common stock could
decline.
We have incurred operating losses and we may not be profitable in the future.
We have incurred net losses in each quarter since inception and we expect to
continue to incur net losses for the foreseeable future. As of March 31, 2000,
we had an accumulated deficit of $59.9 million. We expect to continue to devote
substantial resources to expand our product development, sales and marketing and
our customer support and professional service groups. As a result, we will need
to generate significant revenues to achieve and maintain profitability. We may
not be profitable in any future period.
Quarterly fluctuations in our operating results may adversely affect our stock
price.
Our license revenues have fluctuated substantially from quarter to quarter in
the past and are likely to continue to fluctuate substantially in the future. In
addition, the fiscal or quarterly budget cycles of our users can cause our
revenues to fluctuate from quarter to quarter and applicable accounting policies
may cause us to report new license agreements as deferred revenue until
implementation begins. As a result, we believe that period-to-period comparisons
of our operating results are not meaningful, and you should not rely on such
comparisons to predict our future performance. We will continue to base our
decisions regarding our operating expenses on anticipated revenue trends. To the
extent these expenses are not followed by increased revenues, our operating
results will suffer. Fluctuations in our operating results, particularly
compared to the expectations of market analysts or investors, could cause severe
volatility in the price of our common stock.
Our quarterly operating results depend on a small number of large orders.
We derive a significant portion of our product license revenues in each
quarter from a small number of relatively large orders. Our operating results
for a particular fiscal quarter could be materially adversely affected
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<PAGE>
if we are unable to complete one or more substantial license sales or
implementations planned for that quarter.
Factors outside our control may cause the timing of our license revenues to
vary from quarter-to-quarter, possibly adversely affecting our operating
results.
Under applicable accounting rules, we may experience further variability in
our license revenues from quarter to quarter due to factors outside our control,
including:
. whether we are providing implementation services
. whether implementation is delayed or takes longer than expected
. variability in the mix of new and existing customers
Where we are implementing the software, we will account for the agreement as
an item of deferred revenue and will recognize the revenue over the period of
implementation. Most of our new customers begin implementation within 30 to 60
days of signing a license agreement. Once commenced, implementation of our
products typically ranges from 30 to 45 days, an improvement from prior years
when installations took 60 to 90 days. We can't, however, guarantee that
customers will begin implementation or that we will always be able to implement
our software within those time periods. Thus, all of our deferred license
revenue may not be recognized within the originally expected time period.
Seasonality may adversely affect our quarterly operating results.
We expect to experience seasonality in our license revenue. To date, we
believe that seasonality has been masked by other factors, such as large orders
and the timing of personnel changes in our sales staff. Our customers' purchase
decisions are often affected by fiscal budgetary factors and by efforts of our
direct sales force to meet or exceed sales quotas. As a result, we expect new
business in the last quarter of a year to be greater than new business in the
first quarter of the following year. One effect of our revenue recognition
policy, however, is that revenue recognized in a quarter will typically not
reflect all of the new license agreements signed and shipped in that quarter.
Because revenue recognized in a given quarter may be primarily associated with
new business in prior quarters, revenue in the first quarter may be higher than
revenue recognized in the previous fourth quarter.
The limited sales history of our products makes it difficult to evaluate our
business and prospects.
We released our first eCRM product in August 1996. Accordingly, the basis
upon which you can evaluate our prospects in general, and market acceptance of
our products in particular, is limited. For our business to succeed, the market
for eCRM software will have to grow significantly, and we will have to achieve
broad market acceptance of our products.
If e-business sales and marketing solutions are not widely adopted, we may not
be successful.
We are broadening our current product suite to integrate with various aspects
of e-business solutions. These products address a new and emerging market for e-
business sales and marketing solutions. The failure of this market to develop,
or a delay in the development of this market, would seriously harm our business.
The success of e-business sales and marketing solutions depends substantially
upon the continued growth and the widespread adoption of the Internet as a
primary medium for commerce and business applications. The Internet
infrastructure
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<PAGE>
may not be able to support the demands placed on it by the continued growth upon
which our success depends. Moreover, reliability, cost, accessibility, security
and quality of service remain unresolved and may negatively affect the growth of
Internet use or the attractiveness of commerce and business communication over
the Internet.
We rely on sales of only one product family.
Product license revenues and related services from our Primus eServer and
Primus eSupport products accounted for over 90% of our total revenues through
March 31, 2000, and we expect these products to continue to account for a
substantial portion of our revenues for the remainder of 2000. As a result,
factors adversely affecting the demand for these products and our eCRM products
in general, such as competition, pricing or technological change, could
materially adversely affect our business, financial condition and operating
results. Our future financial performance will substantially depend on our
ability to sell current versions of our entire suite of eCRM products and our
ability to develop and sell enhanced versions of our eCRM products.
Factors outside our control may make our products less useful.
The effectiveness of our eCRM products depends in part on widespread adoption
and effective use of our software by an enterprise's personnel, partners and
customers and the value derived by each such usage. In addition, the
effectiveness of our knowledge-enabled approach is dependent upon a current
database. If customer-support personnel do not adopt and effectively use our
products, necessary solutions will not be added to the database, and the
database will be inadequate. If an enterprise deploying our software fails to
maintain a current database, the value of our eCRM products to our users will be
impaired. Thus, successful deployment and broad acceptance of our eCRM products
will depend in part on the quality of the users' existing database of solutions,
which is outside our control.
The high level of competition in our market may result in pricing pressures,
reduced margins or the failure of our products to achieve market acceptance.
The market for our products is new and rapidly evolving, and is expected to
become increasingly competitive as current competitors expand their product
offerings and new companies enter the market. Our suite of products competes
against various vendor software tools designed to address a specific or elements
of the complete set of eCRM processes, including Internet communications,
esupport, esales and emarketing. We also face competition from in-house designed
products and third-party custom development efforts.
In addition, companies providing e-commerce and traditional customer
relationship management solutions that may compete with us include Broadvision,
Clarify, Oracle, Peoplesoft, Siebel and Vignette.
The principal competitive factors in our industry include:
<TABLE>
<S> <C>
. vendor and product reputation . product ease-of-use
. customer referenceability . the quality of customer support services,
documentation and training
. measurable economic return . the quality, speed and effectiveness of
application development services
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
. product quality, performance and price . the effectiveness of sales and marketing efforts
. breadth of product functionality and features . product integration with other enterprise
applications
. product scalability
. the availability of products on the Internet and
multiple operating platforms
</TABLE>
As the market for eCRM software matures, it is possible that new and larger
companies will enter the market, existing competitors will form alliances or
current and potential competitors could acquire, be acquired by or establish
cooperative relationships with third parties. The resulting organizations could
have greater technical, marketing and other resources and improve their products
to address the needs of our existing and potential users, thereby increasing
their market share. Increased competition could result in pricing pressures,
reduced margins or the failure of our products to achieve or maintain market
acceptance.
If we do not integrate Imparto's and 2order.com's technology quickly and
effectively, many of the potential benefits of these acquisitions may not be
realized.
We intend to integrate Imparto's and 2order.com's technology into our own
products. We cannot assure you that we will be able to integrate Imparto's and
2order.com's technology quickly and effectively. In order to obtain the benefits
of these acquisitions, we must make Imparto's and 2order.com's technology,
products and services operate together with our technology, products and
services. We may be required to spend additional time or money on integration
which would otherwise be spent on developing our business and services or other
matters. If we do not integrate these technologies effectively or if management
and technical staff spend too much time on integration issues, it could harm our
business, financial condition and results of operations. In addition, the
success of these acquisitions will also depend on our ability to successfully
integrate and manage the acquired operations and retain or replace the key
employees of the companies we acquired.
The loss of access to, or a problem with, Versant's database could adversely
affect our business.
Historically, we incorporated a database licensed from Versant into our
products. Presently, our products support Microsoft SQL Server, Oracle and
Versant databases. Because the products we have shipped to date, however, rely
on Versant's database, we continue to depend on Versant's ability to support the
database in a timely and effective manner.
Failure to sufficiently expand our sales and marketing infrastructure would
adversely affect our sales.
To date, we have licensed our products primarily through our direct sales
force. Our future revenue growth will depend in large part on our ability to
recruit, train and manage additional sales and marketing personnel and to expand
our indirect distribution channels. We have experienced and continue to
experience difficulty in recruiting qualified sales and marketing personnel and
in establishing third-party relationships. We may not be able to successfully
expand our direct sales force or other distribution channels and any such
expansion may not result in increased revenues. Our business, financial
condition and operating results will be materially adversely affected if we fail
to expand our sales and marketing resources.
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<PAGE>
Our inability to expand sufficiently our implementation and consulting
capabilities would limit our ability to grow.
If sales of new licenses increased rapidly or if we were to sign a license
agreement for a particularly large or complex implementation, our customer
support and professional services personnel may be unable to meet the demand for
implementation services. In that case, if we were unable to retain or hire
highly trained consulting personnel or establish relationships with third-party
systems-integrators and consultants to implement our products, we would be
unable to meet customer demands for implementation and educational services
related to our products.
Our failure to attract and retain skilled technical personnel in a tight labor
market may adversely affect our product development, sales and customer
satisfaction.
Qualified technical personnel are in great demand throughout the software
industry. The demand for qualified technical personnel is particularly acute in
the Pacific Northwest, due to the large number of software companies and the low
unemployment in the region. Our success depends in large part upon our continued
ability to attract and retain highly skilled technical employees, particularly
software architects and engineers. Our failure to attract and retain the highly-
trained technical personnel that are integral to our direct sales, product
development and customer support teams may limit the rate at which we can
generate sales and develop new products or product enhancements. This could have
a material adverse effect on our business, financial condition and operating
results.
The market price of our common stock has been volatile since our initial
public offering in July 1999. Consequently, potential employees may perceive our
equity incentives such as stock options as less attractive. In that case, our
ability to attract and retain employees will be adversely affected.
Acquisitions could disrupt our business and harm our financial condition.
In order to remain competitive, we may find it necessary to acquire additional
businesses, products and technologies. In the event that we do complete an
acquisition, we could be required to do one or more of the following:
. issue equity securities, which would dilute current shareholders'
percentage ownership
. assume contingent liabilities
. incur a one-time charge
. amortize goodwill and other intangible assets
We may not be able to successfully integrate any technologies, products,
personnel or operations of companies that we acquire. These difficulties could
disrupt our ongoing business, divert management resources and increase our
expenses.
Failure to properly integrate our management team would adversely affect our
business.
In the last year we added three new members to our senior management team,
none of whom worked together prior to joining Primus. Our success depends on the
performance of our senior management and their
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<PAGE>
ability to work together. Failure to properly integrate them would harm our
business. Much of our success also depends on Michael A. Brochu, our president
and chief executive officer. The loss of Mr. Brochu's services would harm our
business.
Our international operations are subject to additional risks.
Revenues from customers outside the United States represented approximately
$1.8 million in the 3 months ended March 31, 2000, or 17% of our total revenue
for the same period. We currently customize our products for the Japanese
market. In the future, we plan to develop additional localized versions of our
products. Localization of our products will create additional costs and would
cause delays in new product introductions. In addition, our international
operations will continue to be subject to a number of other risks, including:
. costs of customizing products for foreign countries
. laws and business practices favoring local competition
. compliance with multiple, conflicting and changing laws and regulations
. longer sales cycles
. greater difficulty or delay in accounts receivable collection
. import and export restrictions and tariffs
. difficulties in staffing and managing foreign operations
. political and economic instability
Our international operations also face foreign-currency-related risks. To
date, substantially all of our revenues have been denominated in U.S. dollars,
but we believe that in the future, an increasing portion of our revenues will be
denominated in foreign currencies, including the Euro. The Euro is an untested
currency and may be subject to economic risks that are not currently
contemplated. Fluctuations in the value of the Euro or other foreign currencies
may have a material adverse effect on our business, operating results and
financial condition.
Our failure to adapt to technology trends and evolving industry standards would
hinder our competitiveness.
Our market is susceptible to rapid changes due to technology innovation,
evolving industry standards, and frequent new service and product introductions.
New services and products based on new technologies or new industry standards
expose us to risks of technical or product obsolescence. We will need to use
leading technologies effectively, continue to develop our technical expertise
and enhance our existing products on a timely basis to compete successfully in
this industry. We cannot be certain that we will be successful in using new
technologies effectively, developing new products or enhancing existing products
on a timely basis or that any new technologies or enhancements used by us or
offered to our customers will achieve market acceptance.
Our inability to continue integration of our products with other third-party
software could adversely affect market acceptance of our products.
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<PAGE>
Our ability to compete successfully also depends on the continued
compatibility and interoperability of our products with products and systems
sold by various third parties, including traditional CRM software sold by
Clarify, Onyx, Remedy, Siebel and Peoplesoft. Currently, these vendors have open
applications program interfaces, which facilitate our ability to integrate with
their systems. If any one of them should close their programs' interface or if
they should acquire one of our competitors, our ability to provide a close
integration of our products could become more difficult and could delay or
prevent our products' integration with future systems.
Our stock price has been volatile and could fluctuate in the future.
The market price of our common stock has been highly volatile and is subject
to wide fluctuations. We expect our stock price to continue to fluctuate:
. in response to quarterly variations in operating results
. in response to announcements of technological innovations or new
products by us or our competitors
. because of market conditions in the enterprise software industry
. in reaction to changes in financial estimates by securities analysts,
and our failure to meet or exceed the expectations of analysts or
investors
. in response to our announcements of significant acquisitions, strategic
relationships or joint ventures
. in response to sales of our common stock
Our efforts to protect our proprietary rights may be inadequate.
Our success depends in part on our ability to protect our proprietary rights.
To protect our proprietary rights, we rely primarily on a combination of
copyright, trade secret and trademark laws, confidentiality agreements with
employees and third parties, and protective contractual provisions such as those
contained in license agreements with consultants, vendors and customers. We have
not signed such agreements in every case. Despite our efforts to protect our
proprietary rights, unauthorized parties may copy aspects of our products and
obtain and use information that we regard as proprietary. Other parties may
breach confidentiality agreements and other protective contracts we have entered
into. We may not become aware of, or have adequate remedies in the event of,
such breaches.
We pursue the registration of some of our trademarks and service marks in the
United States and in certain other countries, but we have not secured
registration of all our marks. A significant portion of our marks include the
word "Primus." Other companies use "Primus" in their marks alone or in
combination with other words, and we cannot prevent all third-party uses of the
word "Primus." We license certain trademark rights to third parties. Such
licensees may not abide by compliance and quality control guidelines with
respect to such trademark rights and may take actions that would adversely
affect our trademarks.
Other companies may claim that we infringe their intellectual property or
proprietary rights.
If any of our products violate third party proprietary rights, we may be
required to reengineer our products or seek to obtain licenses from third
parties, and such efforts may not be successful. We do not conduct
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<PAGE>
comprehensive patent searches to determine whether the technology used in our
products infringes patents held by third parties. Product development is
inherently uncertain in a rapidly evolving technological environment in which
there may be numerous patent applications pending, which are confidential when
filed, with regard to similar technologies. In addition, other companies have
filed trademark applications for marks similar to the names of our products.
Although we believe that our products do not infringe the proprietary rights of
any third parties, third parties could assert infringement claims against us in
the future. The defense of any such claims would require us to incur substantial
costs and would divert management's attention and resources to defend against
any claims relating to proprietary rights, which could materially and adversely
affect our financial condition and operations. Parties making such claims could
secure a judgment awarding them substantial damages, as well as injunctive or
equitable relief that could effectively block our ability to sell our products
and services. Any such outcome could have a material adverse effect on our
business, financial condition and operating results.
Control by inside shareholders of a large percentage of our voting stock may
permit them to influence us in a way that adversely affects our stock price.
Our officers, directors and affiliated entities together beneficially own
approximately one-third of the outstanding shares of our common stock. As a
result, these shareholders are able to influence all matters requiring
shareholder approval and, thereby, our management and affairs. Some matters that
typically require shareholder approval include:
. election of directors
. certain amendments to our articles of incorporation
. merger or consolidation
. sale of all or substantially all our assets
This concentration of ownership may delay, deter or prevent acts that would
result in a change of control, which in turn could reduce the market price of
our common stock.
Our articles of incorporation and bylaws and Washington law contain provisions
that could discourage a takeover.
Specific provisions of our articles of incorporation and bylaws and Washington
law could make it more difficult for a third party to acquire us, even if doing
so would be beneficial to our shareholders.
Our articles of incorporation and bylaws establish a classified board of
directors, eliminate the ability of shareholders to call special meetings,
eliminate cumulative voting for directors and establish procedures for advance
notification of shareholder proposals. The presence of a classified board and
the elimination of cumulative voting may make it more difficult for an acquirer
to replace our board of directors. Further, the elimination of cumulative voting
substantially reduces the ability of minority shareholders to obtain
representation on the board of directors.
Our board of directors has the authority to issue up to 5,000,000 shares of
preferred stock and to determine the price, rights, preferences, privileges and
restrictions, including voting rights, of those shares without any further vote
or action by our shareholders. The issuance of preferred stock could have the
effect of delaying, deferring or preventing a change of control of Primus and
may adversely affect the market price of the common
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<PAGE>
stock and the voting and other rights of the holders of common stock.
Washington law imposes restrictions on some transactions between a corporation
and significant shareholders. Chapter 23B.19 of the Washington Business
Corporation Act prohibits a target corporation, with some exceptions, from
engaging in particular significant business transactions with an acquiring
person, which is defined as a person or group of persons that beneficially owns
10% or more of the voting securities of the target corporation, for a period of
five years after the acquisition, unless the transaction or acquisition of
shares is approved by a majority of the members of the target corporation's
board of directors prior to the acquisition. Prohibited transactions include,
among other things:
. a merger or consolidation with, disposition of assets to, or issuance or
redemption of stock to or from, the acquiring person
. termination of 5% or more of the employees of the target corporation
. allowing the acquiring person to receive any disproportionate benefit as
a shareholder
A corporation may not opt out of this statute. This provision may have the
effect of delaying, deterring or preventing a change in control of Primus.
The foregoing provisions of our charter documents and Washington law could
have the effect of making it more difficult or more expensive for a third party
to acquire, or could discourage a third party from attempting to acquire Primus.
These provisions may therefore have the effect of limiting the price that
investors might be willing to pay in the future of our common stock.
Changes in accounting standards could affect the calculation of our future
operating results.
In October 1997, the American Institute of Certified Public Accountants issued
its Statement of Position 97-2, "Software Revenue Recognition," and later
amended its position by its Statement of Position 98-4. We adopted Statement of
Position 97-2 effective January 1, 1998. Based on our interpretation of the
AICPA's position, we believe our current revenue recognition policies and
practices are consistent with Statement of Position 97-2 and Statement of
Position 98-4. The AICPA has also issued Statement of Position 98-9, which is
effective for transactions we enter into beginning January 1, 2000 and the SEC
issued SAB No. 101 "Revenue Recognition in Financial Statements", which is
effective after June 15, 2000. Full implementation guidelines for these
standards have not yet been issued. Once available, such implementation
guidelines could lead to unanticipated changes in our current revenue accounting
practices which could materially adversely affect our business, financial
condition and operating results. Additionally, the accounting standard setters,
including the SEC and the FASB, have been reviewing the accounting standards
related to stock-based compensation and in March 2000 the FASB issued Financial
Accounting Standard Interpretation No. 44 "Accounting for Certain Transactions
Involving Stock Compensation", an interpretation of APB Opinion No. 25. This
interpretation is effective July 1, 2000. We do not believe the implementation
of Interpretation No. 44 will have an effect on our employee stock-based
compensation transactions entered into already, however, the impact on future
employee stock based awards may have a significant adverse impact on us.
Any changes to these standards or any other accounting standards could
materially adversely affect our business, financial condition and operating
results.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
We are exposed to the impact of interest rate changes and change in the market
values of our investments.
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Interest Rate Risk. We are exposed to the impact of short-term changes in
interest rates. Our exposure primarily relates to our investment portfolio. We
invest our excess cash in high quality corporate and municipal debt instruments.
Investments in both fixed rate and floating rate interest earning instruments
carries a degree of interest rate risk. Fixed rate securities may have their
fair market value adversely impacted by a rise in interest rates, while floating
rate securities may produce less income than expected if interest rates fall. As
a result, changes in interest rates may cause usto suffer losses in principal if
forced to sell securities that have declined in market value or may cause our
future investment income to fall short of expectations. Our investment portfolio
is designated as available-for-sale, and accordingly is presented at fair value
in the consolidated balance sheet.
We protect and preserve our invested funds with investment policies and
procedures that limit default, market and reinvestment risk. We have not
utilized derivative financial instruments in our investment portfolio.
During the three months ended March 31, 2000, the effects of changes in interest
rates on the fair market value of our marketable investment securities and our
earnings were insignificant. At March 31, 2000, our investment portfolio
included approximately $4.5 million in variable rate investments, primarily all
of which are due during 2000. Fixed rate investments at March 31, 2000 of
approximately $27.0 million had a weighted average interest rate of 6.29% and
are primarily due in 2000. We believe that the impact on the fair market value
of our securities and our earnings for the remainder of 2000 from a hypothetical
10% increase in interest rates would be insignificant.
Foreign Currency Exchange Risk. We develop products in the United States and
sell them in North America, Asia and Europe. As a result, our financial results
could be affected by factors such as changes in foreign currency exchange rates
or weak economic conditions in foreign markets. Since our sales are currently
priced in U.S. dollars and translated to local currency amounts, a strengthening
of the dollar could make our products less competitive in foreign markets. We
have one foreign subsidiary whose expenses are incurred in its local currency.
As exchange rates vary, its expenses, when translated, may vary from
expectations and adversely impact overall expected profitability. Our operating
results have not been significantly affected by exchange rate fluctuations in
1999. If, in 2000, the US dollar uniformly decreases in strength by 10% relative
to the currency of our foreign sales subsidiary, our operating results for the
remainder of 2000 would likely not be significantly effected.
PART II -- OTHER INFORMATION
Item 2. Change in Securities and Use of Proceeds
(c) Recent Sales of Unregistered Securities
During the period covered by this report on Form 10-Q, we issued and sold
unregistered securities as follows:
On January 7, 2000, we issued 1,000 shares of our common stock, valued at
$3.00 per share, pursuant to an exercise of a warrant.
On January 7, 2000, we issued 5,000 shares of our common stock, valued at
$9.00 per share, pursuant to an exercise of a warrant.
On January 21, 2000, we issued an aggregate of 1,506,127 shares of our
common stock for all of the issued and outstanding capital stock of 2order.com.
In addition, options and warrants to acquire capital stock of 2order.com were
converted into options and warrants to acquire 150,378 shares of our common
stock.
On March 6, 2000, we issued a total of 2,040 shares of our common stock,
valued at $13.03 per share, pursuant to exercises of warrants.
Page 25 of 27
<PAGE>
The sales and issuances of these shares were exempt from registration under
the Securities Act pursuant to Rule 701 promulgated thereunder on the basis that
these options and warrants were offered and sold either pursuant to a written
compensatory benefit plan or pursuant to written contracts relating to
consideration, as provided by Rule 701, or pursuant to Section 4(2) of the
Securities Act on the basis that the transactions did not involve a public
offering.
(d) Use of Proceeds
On June 30, 1999, the SEC declared effective our Registration Statement on
Form S-1 (Registration No. 333-77477) as filed with the SEC in connection with
our Initial Public Offering. The offering consisted of 4,772,500 shares of
Primus common stock, including 622,500 shares of common stock offered pursuant
to the exercise of the underwriters' over-allotment option and 150,000 shares
offered by selling shareholders. The aggregate price of the shares offered and
sold by Primus was approximately $50.8 million. Proceeds to Primus, after
accounting for $3.6 million in underwriting discounts and commissions and
approximately $1.0 million in other expenses were $46.2 million.
We are using the net proceeds raised in the initial public offering for
additional working capital, repayment of short-term indebtedness, and general
corporate purposes, including increased domestic and international sales and
marketing expenditures, increased research and development expenditures and
capital expenditures made in the ordinary course of business. Pending such uses,
the net proceeds will be invested in investment-grade, interest-bearing
instruments, the majority of which are short-term.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
10.17 Amended and Restated Software Marketing and Distribution
Agreement, dated March 31, 2000, by and between registrant and
Primus Knowledge Solutions KK.
10.18 Lease Amendment II, dated February 11, 2000, by and between the
registrant and Westlake Center Associates Limited Partnership.
27.1 Financial Data Schedule.
(b) Reports on Form 8-K.
We filed the following reports on Form 8-K during the quarter covered by
this Form 10-Q:
On January 21, 2000, we filed a Form 8-K reporting the engagement of KPMG
LLP as our certified public accountants.
On February 4, 2000, we filed a Form 8-K reporting the acquisition of
2order.com, Inc.
On February 24, 2000, we filed a Form 8-K/A, amending a current report that
we filed on February 4, 2000, reporting certain financial information
pursuant to Item 7.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PRIMUS KNOWLEDGE SOLUTIONS, INC.
Date: May 11, 2000 By: /s/ Elizabeth J. Huebner
-------------------------------------
Elizabeth J. Huebner
Executive Vice President, Chief Financial
Officer, Secretary and Treasurer
(Principal financial and chief accounting
officer)
Page 26 of 27
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------------
<C> <S>
10.17 Amended and Restated Software Marketing and Distribution
Agreement, dated March 31, 2000, by and between registrant and
Primus Knowledge Solutions KK.
10.18 Lease Amendment II, dated February 11, 2000, by and between the
registrant and Westlake Center Associates Limited Partnership.
27.1 Financial Data Schedule.
</TABLE>
Page 27 of 27
<PAGE>
EXHIBIT 10.17
PRIMUS KNOWLEDGE SOLUTIONS, INC.
Amended and Restated Software Marketing and Distribution Agreement
Primus Contract ID: SMDA4783
This Agreement ("Agreement") is made between Primus Knowledge Solutions, Inc.
("Primus"), 1601 Fifth Avenue, Suite 1900, Seattle, Washington 98101, U.S.A.
(fax: +1 (206) 292-1825) and
Distributor Name: Primus Knowledge Solutions, KK,
a Japanese corporation ("Distributor")
Distributor Address: Ebisu Prime Sq. Tower
1-1-39 Hiroo, Shibuya-ku
Tokyo, JAPAN 150
Fax No.: +81 3-5469-3005
Primus is the owner and licensor of the Software (defined below). Primus wishes
to market and distribute the Software in the Territory (defined below).
Distributor has know-how and experience in marketing and distributing software
in the Territory, and in providing related services, and wishes to assist
Primus. Primus is willing to appoint Distributor to market and distribute the
Software in the Territory, and Distributor is willing to accept such
appointment, all on the terms and conditions specified below. Therefore, for
good and valuable consideration, the receipt and sufficiency of which they each
acknowledge, Primus and Distributor agree to be bound by such terms and
conditions. This Agreement supercedes any and all prior agreements between
Primus and Distributor.
EXECUTED as of the date set forth below Primus' signature:
Primus Knowledge Solutions, Inc. Distributor
By: /s/ Michael A. Brochu By: /s/ Masahiro Sasaki
Michael A. Brochu Masahiro Sasaki
Its: President and Chief Executive Officer Its: President
Dated: 3/31/00 Dated: March 31, 2000
Terms and Conditions
Table A - Distributor's Rights
<TABLE>
<CAPTION>
====================================================================================================================================
Product Language Exclusivity Territory Term
------------------------------- ------------- ---------------------------------------
Exclusive Non-Exclusive Start Date End Date
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Primus Products Third anniversary of
- -------------------------------------------- Effective Date Effective Date or any
Primus(R) eServer/1/ Japanese and Yes No Japan Renewal Effective Date
English
- ----------------------------
Primus(R) eSupport/2/
- ------------------------------------------------------------------------------------------------------------------------------------
Primus(R) eServer/1/ Japanese and China Third anniversary of
English Korea Effective Date Effective Date or any
No Yes Hong Kong Renewal Effective Date
- ----------------------------
Primus(R) eSupport/2/
- ------------------------------------------------------------------------------------------------------------------------------------
Upstream Supplier Products
- ------------------------------------------------------------------------------------------------------------------------------------
On the termination or
Seagate Crystal Info v.6/3/ English and No Yes Japan and Effective Date last effective date of
Japanese Korea the authorizing
agreement between
Seagate and Primus
- ------------------------------------------------------------------------------------------------------------------------------------
KBI Total Product Support English No Yes Japan and Effective Date On the termination or
Suite Korea last effective date of
the authorizing
agreement between KBI
and Primus
====================================================================================================================================
Note 1: Primus(R) eServer is formerly known as SolutionSeries(TM) Server, SolutionBuilder(R) and SolutionExplorer(R)
Note 2: Primus(R) eSupport is formerly known as SolutionPublisher(R)
Note 3: Limited to Client License and Report/Query license (no OLAP license) and subject to the licensing and other restrictions
set forth in Schedule 7
</TABLE>
Page 1 of 27
<PAGE>
Table B - Software Distribution Fees and Support and Maintenance Fees
<TABLE>
<CAPTION>
====================================================================================================================================
Product Language DISTRIBUTOR'S DISCOUNT FROM APPLICABLE LIST PRICE (%)
-------------------------------------------------------------------------------------
Aggregate Sales to a Specific Distributor's Discount from Support and
End User During an Annual Sales Applicable List Price For Orders Maintenance
Period by the Specific End User During Fees
(US $) the Annual Sales Period (%)
=================================================-----------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Primus Products Up to $99,999 37%
- ---------------------------- ---------------------------------------------------------------------
Primus(R) eServer/1/ $100,000 - $199,999 40%
and ---------------------------------------------------------------------
Primus(R) eSupport/2/ $200,000 - $299,999 43%
---------------------------------------------------------------------
$300,000 - $399,999 46%
---------------------------------------------------------------------
Japanese and $400,000 - $499,999 49% 50%
English ---------------------------------------------------------------------
$500,000 - $599,999 53%
---------------------------------------------------------------------
$600,000 - $699,999 56%
---------------------------------------------------------------------
$700,000 - $799,999 59%
---------------------------------------------------------------------
$800,000 - $899,999 62%
---------------------------------------------------------------------
$900,000 - $999,999 65%
---------------------------------------------------------------------
$1,000,000 and over 68%
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Upstream Supplier Products Price Per Unit Support and Maintenance Fees
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Seagate Crystal Info Set Japanese $1,400 per set 18%
- ------------------------------------------------------------------------------------------------------------------------------------
KBI Total Product Support English Intranet Web Server - $18,000/500 Concurrent User Pack 40%
Suite Client/Server - $800/Personal ID User
====================================================================================================================================
</TABLE>
Note 1: Primus(R) eServer is formerly known as SolutionSeries(TM)Server,
SolutionBuilder(R) and SolutionExplorer(R)
Note 2: Primus(R) eSupport is formerly known as SolutionPublisher(R)
Note 3: Seagate Crystal Info Set refers to a set of Seagate products that
include Five (5) licenses of Tool Crystal Info. and One (1) License of
the Query Tool.
Table C - Services Fees
<TABLE>
<CAPTION>
====================================================================================================================================
Service Description Location Fee per Labor Day (US $) Distributor's Discount Effective Period
From Applicable -------------------------
List Price Start Date End Date
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Primus Services
- ------------------------------------------------------------------------------------------------------------------------------------
Sales Training Seattle Applicable List Price TBD Effective Third
- -------------------------------------------------------------------------------------------------------- Date Anniversary
Certification - Client Services Seattle Applicable List Price TBD of Effective
- -------------------------------------------------------------------------------------------------------- Date or any
Certification - Technical Support Seattle Applicable List Price TBD Renewal
- -------------------------------------------------------------------------------------------------------- Effective
Client Services United States Applicable List Price TBD Date
====================================================================================================================================
</TABLE>
Table D - Distributor's Performance
<TABLE>
<CAPTION>
====================================================================================================================================
Products Year of Net Annual Qualified Qualified Qualified Qualified Effective Period
Contract Revenues Sales Consultants Support Marketing ----------------------------
From (US $) Persons Engineers Staff Start Date End Date
Effective
Date
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Primus(R) eServer/1/ 1 4% of Primus
and Recognized
Primus(R) Revenue Effective Third
eSupport/2/ ------------------------------ 3 3 3 2 Date Anniversary
4% of Primus Of Effective
Recognized Date or any
2 and Revenue for Renewal
thereunder the respective Effective
year Date
====================================================================================================================================
</TABLE>
Table E - Credit For Unsold TCI Inventory
<TABLE>
<CAPTION>
====================================================================================================================================
Product Number of Unsold Units Credit per Unsold Unit Total Credit
as of Effective Date (US $) (US $)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Primus SolutionBuilder 1,751 $770 $1,348,270
====================================================================================================================================
</TABLE>
Page 2 of 27
<PAGE>
Section 1. Definitions
For purposes of this Agreement, the following capitalized phrases shall be
ascribed the following meanings:
1.1 "Affiliate" means a Person in which another Person (i) owns equity
possessing at least fifty percent (50%) of the equity interest, or (ii) controls
equity possessing at least twenty percent (20%) of the total combined voting
power of all classes of equity entitled to vote.
1.2 "Applicable List Price" means Primus' then current list prices, as notified
by Primus to Distributor from time to time, for: (i) the Software; (ii) the
provision of technical support services and Updates; and (iii) any sales
training, certification or client services provided by Primus (except to the
extent specified otherwise in Table C).
1.3 "Confidential Information Agreement" means Primus' standard form Bilateral
Non-Disclosure Agreement, a copy of which is attached to this Agreement as
Schedule 1. "Confidential Information" shall have the meaning ascribed to it in
such agreement.
1.4 "Documentation" means the Software user, system administrator and technical
manuals and other documentation, including additional, updated or revised
documentation, if any, that Primus provides to Distributor.
1.5 "Effective Date" means January 1, 2000.
1.6 "End User" means any Person that acquires a license to use the Software for
production end user purposes, and not for redistribution, and that has executed
a License Agreement with Distributor or a Sub-Distributor.
1.7 "End User Maintenance" means the provision to End Users of technical
support services with respect to the Software, and the distribution of Updates
to End Users by Distributor or any sub-distributors, all in accordance with the
provisions of the Support and Maintenance Agreement. "End User Maintenance
fees" means the fees payable to Distributor by End Users for End User
Maintenance.
1.8 "Evaluation Agreement" means a form of software evaluation agreement that
is identical in all material respects to Primus' then current standard
evaluation license agreement for the Territory, the current form of which is
attached to this Agreement in Schedule 2. Primus may change the current form of
evaluation license agreement from time to time and at any time, upon prior
written notice to Distributor.
1.9 "Evaluator" means any Person that acquires a license to evaluate the
Software and that has executed an Evaluation Agreement.
1.10 "Exclusive Software" means the Software specified in Table A as being
subject to Distributor's exclusive distribution rights in the specified
Territory.
1.11 "Exclusive Territory" means the Japanese archipelago.
1.12 "Initial Software" means the first version of each Software product that
Primus delivers to Distributor pursuant to this Agreement, together with any
modifications thereof delivered to remedy any non-compliance with the warranties
under Sections 9.3.1-9.3.3.
1.13 "License Agreement" means a form of software license agreement that is
identical in all material respects to Primus' then current standard end user
license agreement for the Territory, the current form of which is attached to
this Agreement in Schedule 2. Primus may change the current form of end user
license agreement from time to time and at any time, upon prior written notice
to Distributor.
1.14 "Net Annual Revenue" means the amount of Software license and Primus
Maintenance fees actually paid by Distributor to Primus under this Agreement and
recognized by Primus as revenue for the respective year in accordance with
United States "Generally Accepted Accounting Principles", exclusive of shipping
charges, customs, import and export duties, value added taxes and other sales
taxes, and duties.
1.15 "New Software" means any versions of the Software delivered to Distributor
by Primus other than the Initial Software.
1.16 "Non-Exclusive Software" means the Software specified in Table A as being
subject to Distributor's non-exclusive distribution rights.
1.17 "Performance Goals" means the Performance Goals set forth in Table D and
Section 3.1.1.
1.18 "Person" means any individual, partnership, company, corporation, trust,
association or other entity or organization whatsoever.
1.19 'Primus Maintenance" means Primus' provision of support and maintenance to
Distributor, namely Secondline Support and Updates. Primus Maintenance fees
means the fees payable to Primus by Distributor for Primus Maintenance.
1.20 "Primus Software" means the object code version of Primus' computer
software programs (including any third party products licensed by Primus and
embedded in
Page 3 of 27
<PAGE>
Primus' computer programs) identified in Table A as Primus products.
1.21 "Qualified Consultant" means a client services consultant employed by
Distributor who has completed a Primus client services certification course
within the past twelve (12) months.
1.22 "Qualified Sales Person" means a sales person employed by Distributor who
has completed a Primus sales training course within the past twelve (12) months.
1.23 "Qualified Marketing Staff" means Marketing professionals employed by the
Distributor experienced and competent in the development and implementation of
core marketing strategies and practices including competitive and market
research, direct marketing activities, corporate marketing activities, PR and
awareness activities, event planning and implementation, marketing collateral
creation, branding and messaging, and strategic planning and positioning.
1.24 "Qualified Support Engineer" means a technical support analyst employed by
Distributor who has completed a Primus technical support certification course
within the past twelve (12) months.
1.25 "Secondline Support" means Primus' obligations to provide technical
support to Distributor's technical support organization, as more particularly
described in Schedule 3.
1.26 "Software" means all or any portion of (i) the Primus Software, (ii) the
Upstream Supplier Software, and (iii) any Updates.
1.27 "Sub-Distributor" means any Person that distributes computer hardware or
software, or that provides related services, and that has executed a Sub-
Distribution Agreement with Distributor either (i) to make the Software and
Documentation available to End Users in conjunction with such Person's other
products or services, or (ii) to distribute the Primus Software and the Upstream
Supplier Software and Documentation on a stand-alone basis.
1.28 "Sub-Distribution Agreement" means a written agreement between Distributor
and each Sub-Distributor that provides the Sub-Distributor with certain sub-
licensing rights to the Software and Documentation, which rights shall not
exceed those granted to Distributor by Primus under this Agreement.
1.29 "Support and Maintenance Agreement" means a form of end user support and
maintenance agreement that is identical in all material respects to Primus' then
current standard end user support and maintenance agreement for the Territory,
the current form of which is attached to this Agreement in Schedule 2. Primus
may change the current form of end user support and maintenance agreement from
time to time and at any time, upon prior written notice to Distributor.
1.30 "Term" means the term of this Agreement, as more fully described in
Section 10.
1.31 "Territory" means the geographic areas of Japan, Korea, China and Hong
Kong specified in Table A.
1.32 "Trademarks" means: (i) Primus' trademarks Primus, Primus(R) eServer,
Primus(R) eSupport, Primus(R) Interchange, SolutionSeries, SolutionBuilder,
SolutionExplorer, SolutionPublisher and their associated logos; (ii) any
applicable Upstream Supplier Trademarks; and (iii) and any and all other
trademarks and/or service marks that Primus may use and approve in writing for
use by Distributor in connection with the Software.
1.33 "Updates" means new releases, major releases and maintenance releases of
the Software which Primus or the applicable Upstream Supplier does not designate
as different products for which it charges separately
1.34 "Upstream Supplier" means a third party that has granted Primus a license
to distribute and sub-license products developed by the third party (or its
licensors).
1.35 "Upstream Supplier Software" means the object code version of any Upstream
Supplier's computer software programs (including any third party products
licensed by the Upstream Supplier and embedded in such computer programs)
identified in Table A as Upstream Supplier products.
1.36 "Web Access Customers" means the end user customers of any End User who
access the server portions of the Software via the World Wide Web using a
browser interface, to retrieve information from (but not contribute information
to) the End User's database.
1.37 "Tables" means references to Tables include any subsequent Tables
(numbered A-1, A-2 and so forth) to which both of the parties agree in writing.
1.38 "Primus Recognized Revenue" means the annual budget for total recognized
revenue for Primus, on a worldwide basis, for the respective fiscal year as
approved by the Primus Board of Directors.
1.39 "Renewal Effective Date" means January 1, 2002 or two years subsequent to
the Effective Date for each automatic renewal of the Term as provided for and
more fully described in Section 10.
Section 2. Appointment as Distributor
2.1 Appointment. Subject to the provisions of this Agreement, Primus hereby
appoints Distributor, for the
Page 4 of 27
<PAGE>
duration of the Term and throughout the world, as a distributor for the
marketing, distribution and sub-licensing of the Software to Persons whose head
offices are located in the Territory. The appointment shall be exclusive with
respect to the Exclusive Software, and non-exclusive with respect to the Non-
Exclusive Software. Distributor hereby accepts such appointment.
2.2 License Grants. Subject to the provisions of this Agreement, Primus hereby
grants to Distributor, and Distributor hereby accepts:
2.2.1 Marketing and Distribution: A limited, worldwide, non-transferable
license, with limited right to sub-license to Sub-Distributors, throughout the
Distribution Term, to (i) promote, market and demonstrate the Software and
Documentation to Persons located in the Territory, and (ii) distribute the
Software and Documentation throughout the Territory to End-Users and Evaluators
whose head offices are located in the Territory. The foregoing license shall be
an exclusive license with respect to the Exclusive Software and related
Documentation (subject to Section 2.2.4 below), and a non-exclusive license with
respect to the Non-Exclusive Software and related Documentation.
2.2.2 Right To Sub-License To End-Users and Evaluators: A limited,
worldwide, non-transferable license, with limited right to sub-license to Sub-
Distributors, throughout the Term, to sub-license the Software and Documentation
to End-Users and Evaluators whose head offices are located in the Territory. The
foregoing license shall be an exclusive license with respect to the Exclusive
Software and related Documentation (subject to Section 2.2.4 below), and a non-
exclusive license with respect to the Non-Exclusive Software.
2.2.3 Internal Use: A limited, worldwide, non-exclusive, non-transferable
license to reproduce, distribute and use the Software and Documentation for
Distributor's internal, non-production purposes during the Term, solely to the
extent reasonably necessary to enable Distributor to (i) promote, market and
demonstrate the Software, (ii) become familiar with the Software for purposes of
providing End User Maintenance to End Users and Evaluators, and (iii) make back-
up and archival copies.
2.2.4 Limitations on Exclusivity. Notwithstanding any provision of this
Agreement to the contrary, the grants from Primus to Distributor contained in
Section 2.1 and this Section 2.2 shall not be deemed to prohibit:
(i) the sub-licensing of the Software to an end user located within the
Territory by a Person located outside the Territory, provided that: (a) such
Person is authorized by Primus to license Software to its own Affiliates, and
the End User located in the Territory is an Affiliate of such Person, (b) such
Person is offering Software in combination with other products on an OEM or VAR
basis as an authorized distributor of Primus, or (c) the end user is a Web
Access Customer;
(ii) an End User's providing a Person located outside the Territory with
access to the server portions of the Software, provided that: (a) the server on
which the server portions of the Software are installed is under the custody and
control of the End User, and (b) such Person is either (x) an Affiliate of the
End User and is bound by the terms of the End User's License Agreement, or (y)
is a Web Access Customer of the End User;
(iii) the promotion and marketing of the Software via the Internet and on
the World Wide Web by Primus or any licensor, licensee or sub-licensee of
Primus; or
(iv) entering into a split transaction as contemplated by Sections 2.4
and 7.3.
2.3 Reservation. Primus reserves all rights to the Software, Documentation and
Confidential Information of Primus not expressly included in the scope of the
grant of rights to Distributor in this Agreement. Without limiting the
generality of the foregoing, Distributor shall use the Software only for the
purposes specified in Section 2.2 and in accordance with the following:
2.3.1 Modifications, Combinations and Translations. Without Primus'
specific, prior written consent, which Primus may provide or withhold in its
sole and absolute discretion, Distributor may not: (i) modify or create
derivatives of the Software or the Documentation; (ii) incorporate the Software
into any other computer software program; or (iii) translate any of the Software
or the Documentation. Primus may condition its consent upon Distributor's
written agreement to such commercial terms respecting (a) Distributor's
compensation for its efforts, and (b) technical specifications, as are mutually
acceptable to each of Primus and Distributor.
2.3.2 Ownership of Derivatives. Any modifications, translations or other
derivative works made to or derived from the Software or Documentation by
Distributor or any Person given access to the Software by Distributor, and all
related intellectual property rights (collectively, "Derivatives"), shall be
deemed to be work
Page 5 of 27
<PAGE>
made for hire on behalf of Primus, and Primus shall be the sole owner of all
right, title and interest in and to such Derivatives. To the extent that
ownership of any Derivative does not vest in Primus by operation of law,
Distributor hereby assigns, and shall ensure assignment of all right, title and
interest in and to such Derivative to Primus. Upon request by Primus, and at
Primus' reasonable expense, Distributor shall execute all such written
agreements and instruments, and take all such other action as may be necessary
to perfect Primus' title in and to any Derivative. Nothing in this Section 2.3.2
shall be deemed to provide Primus with ownership rights in (i) products owned by
Distributor or its other licensors, and which Distributor combines with the
Software or the Documentation, or (ii) any know-how of Distributor that
Distributor uses to create any Derivative, except to the extent that such know-
how relates solely to the Software or Documentation.
2.3.3 Media. Unless Distributor first obtains Primus' prior written
consent, not to be unreasonably withheld, Distributor may only distribute the
Software to End-Users and Evaluators on CD-ROM or magnetic disk.
2.3.4 Appointment of Sub-Distributors. Before appointing any Sub-
Distributor, Distributor shall obtain Primus' written approval (not to be
unreasonably withheld) to an accurate English translation of Distributor's
proposed model Sub-Distribution Agreement (the "Model Agreement"). Subject to
Distributor's obtaining such approval, the initial Sub-Distributors shall be the
Persons listed in Schedule 4. Distributor may not appoint any other Sub-
Distributors without obtaining Primus' prior written approval (not to be
unreasonably withheld). Distributor's request for approval shall contain, at a
minimum: (a) the name and a description of the proposed Sub-Distributor; and (b)
an accurate English translation of the proposed Sub-Distribution Agreement,
marked to show changes from the Model Agreement. Distributor shall ensure that:
(i) Distributor may unilaterally terminate all Sub-Distributor appointments and
associated license rights upon termination of the Distribution Term, in each
case without any liability on the part of Primus; (ii) Sub-Distributors shall
have no right to appoint sub-distributors; (iii) the relevant Sub-Distribution
Agreement permits Distributor's assignment of the Sub-Distribution Agreement to
Primus or its nominee; (iv) each Sub-Distributor complies with the obligations
of Distributor under this Agreement, as though such obligations applied directly
to the Sub-Distributor; and (v) Primus is a third-party beneficiary of
Distributor's rights with respect to each of its Sub-Distributors.
2.3.5 No Conveyance of Ownership; Trade Secrets. This Agreement does not
convey any ownership of the Software or Documentation or any media on which the
Software or Documentation is stored, but only the right to transfer possession.
Title to copies of the Software and the Documentation distributed under this
Agreement shall remain with Primus at all times. Distributor acknowledges that
the Software, the Documentation and Primus' Confidential Information constitute
trade secrets and are the valuable property of Primus and its licensors, and
that the Software and Documentation are protected by copyright and trademark
rights.
2.3.6 Reverse Engineering. Except to the extent (if any) permitted by
applicable law, Distributor shall not decompile, or create or attempt to create,
by reverse engineering or otherwise, the source code from the object code
supplied under this Agreement.
2.3.7 Future Rights to Acquire Software. Distributor shall not grant to
any Person any option to sub-license the Software that can be exercised after
expiration of the Distribution Term.
2.3.8 Service Bureau. Distributor shall not rent or lease the Software,
and shall not use or distribute the Software to operate a service bureau or
similar service.
2.4 Licenses for Subsidiaries and Branch Offices of Parent Company Purchasers.
Notwithstanding any provision in this Agreement to the contrary and subject to
the provisions of Section 7.3: Primus may license Software to an End User
located within the Exclusive Territory that is a subsidiary or branch office of
a Parent Company which is a licensed End User located outside the Exclusive
Territory if such Software is sold to and paid for by the Parent Company located
outside the Exclusive Territory and subsequently delivered to the subsidiary or
branch office by the Parent Company. Similarly, Distributor or its Sub-
Distributors may sub-license Software to an End User outside the Exclusive
Territory that is a subsidiary or branch office of a Parent Company which is a
licensed End User located within the Exclusive Territory if such Software is
sold to and paid for by the Parent Company located within the Exclusive
Territory and subsequently delivered to the subsidiary or branch office by the
Parent Company. For purposes of this section, a branch office or subsidiary of
a Parent Company means an office or business entity that is majority owned
(greater than 50% owned) by the Parent Company
Section 3. Distributor's Obligations
Page 6 of 27
<PAGE>
3.1 Sales Efforts. Throughout the Distribution Term, Distributor shall use its
best efforts to solicit orders from responsible and credit-worthy End Users
located in the Territory, for the licensing of the Software and the provision of
End User Maintenance. Without limiting the generality of the foregoing,
throughout the Distribution Term:
3.1.1 Performance Goals. Distributor shall use all commercially reasonable
efforts to: (i) generate Net Revenues in excess of those specified in Table D;
and (ii) ensure that sufficient employees of Distributor have attended Primus'
sales training, consulting and technical support certification courses, such
that Distributor employs no fewer than the number of Qualified Sales Persons,
Qualified Marketing Staff, Qualified Consultants and Qualified Support Engineers
specified in Table D throughout the Initial Term (collectively, the "Performance
Goals"). Without limiting Primus' other remedies, if Distributor fails to meet
any of the Performance Goals, then Primus may, after consultation with
Distributor, but in Primus' sole and absolute discretion, change any exclusive
appointment or license grant to a non-exclusive appointment or license grant.
3.1.2 Marketing Activities. Distributor shall: (i) engage in market
research for the purpose of identifying optimum marketing and distribution
strategies in the Territory; (ii) engage in a variety of marketing activities
including direct marketing activities, awareness and public relations
activities, event planning, strategic planning and marketing collateral
creation; (iii) advise Primus of all such measures as are necessary for the
localization of the Software; (iv) market and promote the Software in the
Territory, using the Trademarks; (v) coordinate sales, services and technical
support training programs with Primus; (vi) establish, train and maintain a
sales and services network with respect to the Software and (vii) ensure that
only Qualified Consultants and Qualified Technicians provide deployment,
technical support and other consulting services related to Primus' products.
3.1.3 Marketing Practices. Distributor shall avoid deceptive, misleading
or unethical practices that are or might be detrimental to Primus, its
licensors, or the Software, and shall conduct all activities under the Agreement
so as to maintain and support the reputation of Primus and Primus' products and
services.
3.1.4 Warranties. Distributor shall not make any representations or
warranties to any Person on behalf of Primus or Primus' licensors, nor assign
any representations or warranties that Primus makes to Distributor under this
Agreement to any Person. Distributor may provide its own warranties to End
Users with respect to the Software, but shall ensure that such warranties (and
any related remedies) do not exceed those provided by Primus to Distributor
under this Agreement.
3.2 End User Maintenance. Throughout the Distribution Term, Distributor or
Distributor's qualified sub-contractor, at Distributor's sole expense, shall
provide End Users with End User Maintenance.
3.3 Client Services. Throughout the Distribution Term, Distributor or
Distributor's qualified sub-contractor, at Distributor's sole expense, shall
provide End Users and Evaluators with such Software installation, implementation
and training services as are reasonably necessary to enable the End User or
Evaluator to use the Software successfully. Distributor shall use its
commercially reasonable efforts to obtain metrics from each End User regarding
the End User's use of, and success with the Software, and shall provide such
metrics to Primus. Primus shall provide Distributor with recommendations as to
the scope and nature of such metrics.
3.4 Agreements with Third Parties.
3.4.1 License, Support and Maintenance, and Evaluation Agreements.
Distributor shall not (i) distribute any Software or Documentation to End Users,
nor (ii) provide any End User with End User Maintenance, except under a valid
License Agreement and Support and Maintenance Agreement, respectively, executed
by the End User. Distributor shall comply with its obligations under all such
Agreements. Distributor shall ensure that all End Users comply with their
obligations under all such Agreements.
3.4.2 Evaluation Agreements. Distributor may order a reasonable number of
copies of the Software and Documentation from Primus, for supervised
demonstration and customer evaluation purposes. Distributor shall not distribute
any Software or Documentation to Evaluators except under a valid Evaluation
Agreement executed by the Evaluator. Distributor shall not be required to pay
Software license fees or Primus Maintenance fees for Software distributed
pursuant to an Evaluation Agreement; provided always that Distributor does not
permit any evaluation to extend beyond thirty (30) days without Primus' prior
written consent, not to be unreasonably withheld. Distributor shall ensure that
all Evaluators comply with their obligations under all such Agreements.
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3.4.3 Execution of Agreements. Distributor shall execute agreements with
Sub-Distributors, End Users and Evaluators only in its own name (and not that of
Primus). Distributor shall provide Primus with a copy of all License Agreements,
Support and Maintenance Agreements and Sub-Distribution Agreements executed by
End Users or Sub-Distributors promptly after their execution, containing at a
minimum the information required to be entered in each table of the License
Agreement and the Support and Maintenance Agreement.
3.4.4 Modifications to Agreements. Distributor may not modify the License
Agreement or the Support and Maintenance Agreement except as specified in this
Section 3.4.4.
(i) Material Changes. Distributor may make material changes to the License
Agreement or the Support and Maintenance Agreement, with Primus' prior written
approval, not to be unreasonably withheld or delayed. To obtain such approval,
Distributor shall submit an accurate English translation of the proposed changes
to Primus.
(ii) Immaterial Changes. Distributor may make immaterial changes to the
License Agreement and the Support and Maintenance Agreement at any time without
any obligation to obtain Primus' prior approval; provided always, however, that
Distributor shall defend, indemnify and hold Primus harmless from and against
any and all claims, loss, liability, damages and expense (including attorneys
and other expert's fees) incurred by Primus in consequence of such changes.
Distributor shall notify Primus of such changes when made.
3.5 Transactions Outside the Territory. If Distributor becomes aware that a
customer may require any Software outside the Territory, and if the exception to
territorial restriction specified in Section 2.2.4(ii) does not apply, then
Distributor shall promptly notify Primus.
3.6 Reports. Throughout the Term, Distributor shall: (i) provide Primus with
the plans, forecasts and reports, in English (collectively, "Reports"),
specified in this Section 3.6; (ii) ensure that each Report contains the minimum
information reasonably requested by Primus; and (iii) use all commercially
reasonable efforts to ensure the accuracy of each Report.
3.6.1 Business Plans. On or before October 15 of each year of the Term,
Distributor shall provide Primus with an annual business plan (based on a
December 31 year end) for the distribution of the Software and the provision of
End User Maintenance by Distributor and Sub-Distributors in the Territory.
Distributor shall also provide Primus with a business plan for any new business
initiative that the Distributor wishes to undertake that requires the assistance
of Primus.
3.6.2 Monthly Forecasts. On or before the fifth (5th) day of each calendar
month, Distributor shall provide Primus with a quarterly forecast for the
current month and subsequent two (2) months, for the sub-licensing of the
Software and provision of End User Maintenance in the Territory.
3.6.3 Monthly Reports. On or before the fifteenth (15th) day of each
calendar month, Distributor shall provide Primus with a report specifying: (i)
the sub-licensing of the Software and provision of End User Maintenance to End
Users in the Territory for the calendar month last ended: (ii) the status of all
Evaluation Agreements in effect in the Territory for the calendar month last
ended, and the related evaluations by potential customers; and (iii) metrics
regarding use of the Software by End Users.
3.7 Accounting. Throughout the Term and until the sixth (6th) anniversary of
its termination, Distributor shall keep complete and accurate records clearly
showing: (i) in accordance with Japanese generally accepted accounting
principles and on a consistent basis, all revenues arising out of the
distribution of the Software and the provision of End User Maintenance by
Distributor and the Sub-Distributors; (ii) all amounts payable to Primus under
this Agreement; and (iii) the location, model name, and serial number of all
servers on which the Software distributed by Distributor or any Sub-Distributor
is installed. Such records, and those specified below, are collectively referred
to in this section as "Distribution Records".
3.7.1 Records. For each License Agreement, Support and Maintenance
Agreement and Sub-Distribution Agreement executed, the Distribution Records
shall include at a minimum: (i) the name and address of the End User or Sub-
Distributor; (ii) the dates of shipment; (iii) a copy of each such Agreement,
and each purchase order and invoice, including all amendments and exhibits; (iv)
records of revenues received and receivable in respect of End User Maintenance
and the period to which such End User Maintenance revenues apply; and (v) in the
case of Sub-Distributors only, a copy of each monthly Sub-Distributors' revenue
report to Distributor.
3.7.2 Audit Rights. Within ten (10) days of Primus' written request,
Distributor shall provide accurate copies of the requested Distribution
Records or any
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requested information contained in the Distribution Records to Primus in
English; provided, however, that Primus may request such information no more
frequently than once per quarter. Upon ten (10) days prior written notice,
Primus may inspect, audit, and copy the Distribution Records and access the
servers on which the Software is installed, at any time during the regular
business hours of the user thereof, but only for the purposes of determining
that (i) Primus has been properly paid all fees to which it is entitled under
this Agreement, and (ii) no infringement of Primus' intellectual property rights
with respect to the Software, the Documentation or the Trademarks has occurred.
Unless an audit discloses a material discrepancy in favor of Distributor or any
of its sub-distributors, Primus may exercise such audit rights no more than once
during any twelve (12) month period. In the event of any understatement of any
Software license fees or Primus Maintenance fees due to Primus, Distributor
shall promptly pay such fees at the Applicable List Price. This remedy and
Primus' acceptance of any payment shall be without prejudice to any additional
rights or remedies of Primus under this Agreement or applicable law.
3.7.3 Log Files. Upon written request by Primus, Distributor shall
transmit to Primus a current, complete and correct copy of the log file for each
server on which the Software is installed; provided, however, that unless review
of a log file has indicated additional fees are due to Primus, Primus may not
request a copy of any one log file more frequently than once a year.
3.8 Governmental Compliance.
3.8.1 Regulatory Approvals. Distributor shall obtain and maintain all
licenses, permits, certificates and authorizations required to perform its
obligations under this Agreement, including without limitation those required
for: (i) Distributor's appointment and performance as distributor and licensee
of Primus, and that of any Sub-Distributors; and (ii) the import of the Software
and Documentation into the Territory. All regulatory and other approvals which
are obtained for the Software by Distributor shall be obtained on behalf of
Primus and for Primus' sole benefit. Distributor represents that no regulatory
approvals which have not already been obtained by Primus and/or Distributor are
presently required for licensing and distribution of the Software in the
Territory.
3.8.2 US Export Control. Distributor shall comply with all then applicable
US export control laws and regulations in connection with its distribution of
the Software and Documentation, and the disclosure of any technical information
related thereto.
3.8.3 U.S. Foreign Corrupt Practices Act. Distributor shall comply with
the requirements of the U.S. Foreign Corrupt Practices Act ("FCPA"), and shall
not take nor omit to take, directly or indirectly, any action that might cause
Primus to be in violation of the FCPA.
3.8.4 Foreign Exchange Controls. Distributor shall be solely responsible
for compliance with any foreign exchange controls affecting the Territory.
3.9 Primus' Intellectual Property Rights.
3.9.1 Primus' Ownership. Distributor shall not represent to any Person
that it has any ownership interest in the Software, Documentation, Trademarks or
Primus' Confidential Information. Distributor acknowledges that no action by it
or on its behalf shall create in Distributor's favor any right, title or
interest in or to the Software, Documentation, Trademarks, and/or Primus'
Confidential Information, or in any registrations, filings, renewal or
enforcement rights of Primus pertaining to them.
3.9.2 Notice of Third Party Infringement. Distributor shall promptly
advise Primus of any suspected or actual infringements of Primus' intellectual
property rights of which Distributor becomes aware. Distributor shall cooperate
with and assist Primus, at Primus' reasonable expense, in any action undertaken
by Primus against any suspected infringement by third parties.
3.9.3 Notice by Primus. Distributor shall not market, display, reproduce,
distribute, sub-license or use the Software or Documentation for a period of
three (3) months commencing on Primus' notice to Distributor that Distributor
should cease use or distribution of the Software due to an infringement claim.
3.9.4 Intellectual Property Rights Registration. Distributor shall, at
Primus' reasonable expense, provide Primus with all assistance reasonably
required by Primus to register Primus throughout the Territory as the owner of
Primus' intellectual property rights with respect to the Software and the
Documentation, including without limitation the Trademarks.
3.10 Costs and Expenses. Distributor shall bear and be liable for all costs and
expenses that it initiates or incurs in fulfilling its obligations under this
Agreement, except as otherwise expressly specified in a written agreement
executed by both parties.
Section 4. Primus' Obligations
4.1 Training. Following execution of this Agreement, and at such other times
during the Term as Primus reasonably determines (for example, upon Primus'
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release of a significant Update), Primus shall provide the training to
Distributor and Sub-Distributors as specified below, at Primus' then current
rates for such services at locations mutually acceptable to both parties, or, to
the extent indicated in Table C, at the rates, discounts and locations specified
in Table C. To the extent Table C provides for a rate or discount to be
determined (TBD) the parties will work in good faith to determine a mutually
agreeable arrangement.
4.1.1 Sales Training. Primus shall provide such sales and pre-sales
information and training as Primus reasonably determines necessary, after
consultation with Distributor, for the promotion, marketing and demonstration of
the Software by Distributor.
4.1.2 Certification Training. Primus shall provide such product
certification training (covering client services and technical support skills
for the Software) as Primus reasonably determines necessary, after consultation
with Distributor.
4.2 Updates. During the Distribution Term, Primus shall (i) provide Distributor
with reasonable prior notice concerning the release of all Updates, and (ii)
provide Distributor with Updates if and when they are generally available for
commercial release in the Territory. Distributor shall not entitle any End User
to any Updates until the Update is generally available for commercial release.
4.3 Secondline Support. During the Term, Primus shall provide Distributor with
Secondline Support. Primus shall have no obligation to directly support End
Users or Sub-Distributors. Primus need not provide any other technical support
except on a basis acceptable to Primus.
4.4 Marketing Materials. During the Term, Primus shall provide Distributor with
initial copies of Primus' marketing materials and price lists applicable to the
promotion, marketing and distribution of the Software in the Territory, together
with any updates created by Primus. Distributor shall be responsible for the
costs of reproducing any such materials.
4.5 Referrals. During the Term, to the extent that Distributor has exclusive
rights as Primus' distributor of the Software, Primus shall forward to
Distributor any inquiry or order with respect to the Software that Primus has
received, and that originates from the Territory.
Section 5. Other Obligations Of The Parties
5.1 Tax Structuring. Throughout the Term, Primus and Distributor shall consult
and work together to determine the most mutually tax-efficient structure for
distribution of the Software within the Territory, and for payment of all fees
to Primus. To the extent there is any Japanese withholding tax liability for
transactions between Primus and Distributor in connection with this Agreement,
Primus and Distributor will split such liability equally.
5.2 No Authority. Neither of the parties shall have any authority to bind or
act for, or assume any obligation or responsibility on behalf of, the other
party, except as such authority may be specifically and expressly delegated in
this Agreement. The parties hereto do not intend, and this Agreement shall not
be deemed to create a partnership, joint venture, franchise, employment or other
relationship between them.
5.3 Confidential Information. Each of the parties shall comply with the
provisions of the Confidential Information Agreement.
5.4 Future Primus Products. In the event Primus introduces into the Exclusive
Territory, products other than the Primus Products for which Distributor has
been granted an Exclusive License pursuant to this Agreement, Primus intends to
grant Distributor an exclusive license to market and distribute such products in
the Exclusive Territory provided that Distributor has met all Performance Goals
established pursuant to this Agreement and provided further that Distributor and
Primus reach an Agreement as to the terms of a Marketing and Distribution
Agreement for such other products.
Section 6. Ordering and Shipment
6.1 Order Submission. Distributor shall order Software and Documentation from
Primus by delivering to Primus: (i) a Distributor purchase order, substantially
in the form attached as Exhibit A; and (ii) a copy of a valid End User purchase
order issued to Distributor or any Sub-Distributor; (iii) if applicable, any
Sub-Distributor purchase order; and (iv) the License Agreement and Maintenance
Agreement executed by the End-User. Sub-Distributors and End Users may not order
Software or Documentation directly from Primus.
6.2 Order Acceptance. Primus shall accept all reasonable orders from
Distributor for Software and Documentation that are in accordance with the terms
of this Agreement. Distributor may not cancel or amend an order once it has been
received by Primus without Primus' prior written consent.
6.3 Delivery. Primus shall deliver orders of Software and Documentation
accepted by Primus to Distributor FCA Seattle. The trade term "FCA" shall be
interpreted in
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accordance with "Incoterms 1990", as promulgated by the International Chamber of
Commerce.
6.4 Customs and Taxes. Distributor shall be responsible for clearing Software
and Documentation through all customs, and shall pay any and all taxes or duties
imposed by any governmental authority on (i) the export or import of the
Software or Documentation, and (ii) the licensing of the Software within the
Territory.
Section 7. Fees and Payments
Except to the extent expressly stated otherwise in this Agreement, Distributor
shall pay Primus at the Applicable List Price, less Distributor's Discount, for:
(i) all Software and Documentation distributed under this Agreement; (ii) all
Primus Maintenance provided under this Agreement; and (iii) all client services
provided by Primus to Distributor (including, for example, but without
limitation, consulting and educational services).
7.1 Software and Primus Maintenance Fees Payable to Primus. Distributor shall
pay Primus Software license fees and Primus Maintenance fees on Software sub-
licensed to End Users and End User Maintenance purchased by End Users in
accordance with the payment terms of Section 7.7. Distributor shall pay Primus
(i) the Software license fees and Primus Maintenance fees for such order at the
Applicable List Price, less Distributor's Discount in accordance with Table B,
and (ii) all related shipping charges, taxes and duties.
7.1.1 Distributor's Discount Applicable to Volume Sales to Specific End
User In the event sales of Primus Products by Distributor to a specific End User
equal or exceed $100,000 (based on Applicable List Price) during an Annual Sales
Period for that End User, the Distributor's Discount applicable to orders for
that End User during that Annual Sales Period shall be determined in accordance
with Table B. Solely for purposes of determining distributor's discount in
accordance with this section, a sub-distributor of Distributor shall be deemed
as an End User provided that Distributor has no ownership interest in such sub-
distributor. The Distributor shall determine the aggregate sales made to an End
User during the Annual Sales Period, including the value of the then current
order, and shall apply the Distributor's Discount from Table B associated with
that aggregate sales amount, to the then current order for that End User. The
initial Annual Sales Period is defined as the calendar period beginning on the
date, after the Effective Date, of the first sale to that End User and ending
twelve months later. Thereafter, for the duration of this Agreement, subsequent
Annual Sales Periods will commence upon the expiration of the previous Annual
Sales Period and end twelve months later. With respect to customers who have
placed orders prior to the Effective Date, Primus agrees to the retroactive
application of the terms described in this section 7.1, such that the Annual
Sales Period for such customers shall be deemed to have begun on the date that
is nine months prior to the date of that customer's first order after the
Effective Date.
7.2 No Charge for Internal Use and Evaluations. Distributor shall not be
required to pay Primus Software license fees or support and maintenance fees
with respect to: (i) Software that Distributor uses internally pursuant to the
internal use license granted under Section 2.2.4; and (ii) Software used by
Evaluators; provided always, however, that Distributor does not permit any
evaluation to extend beyond thirty (30) days without Primus' prior written
consent, not to be unreasonably withheld.
7.3 Splits. In the event Primus licenses any Software to an End User in
accordance with Section 2.4, which Software will be located and supported in the
Exclusive Territory, or if Distributor sub-licenses any Software to an End User
in accordance with Section 2.4, which Software will be located and supported
outside the Exclusive Territory, then Primus and Distributor shall split equally
between them the Software license fees and support and maintenance fees payable
by the End User with respect to such Software. In the event of any multiple-
territory transaction where there is a conflict between Distributor and Primus'
other distributors, agents or representatives which cannot be mutually resolved,
then Primus may, in its sole and absolute discretion, allocate the Software
license fees, End User Maintenance fees, and the responsibility for providing
End User Maintenance among them (less, in the case of Distributor, any
compensation payable to Primus under this Agreement).
7.4 Distributor's Own Software Use. Distributor shall be entitled to the
benefit of its Distributor's Discount for any Software that it acquires during
the Distribution Term for its own production use.
7.5 Client Services. Distributor may request Primus to provide pre-sales,
installation, implementation, training and integration services to any
Distributor or any End User. If Primus, in its sole discretion, accepts such
request, then Distributor shall pay Primus the Applicable List Price for such
services, less the Distributor's Discount, together with travel and living
expenses reasonably incurred by Primus in providing such services.
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7.6 Applicable List Price; Distributor's Discount. The Applicable List Price
contains a list of Software license and End User Maintenance fees recommended by
Primus for use by Distributor in distributing the Software and providing End
User Maintenance in the Territory. If Distributor wishes to sub-license Software
or provide End User Maintenance at less than the Applicable List Price, or if
Distributor wants to provide any Person with an option to acquire rights to the
Software or End User Maintenance at less than the Applicable List Price, then
Distributor shall first provide Primus with not less than five (5) business days
prior written notice. Notwithstanding any of the foregoing, Distributor shall be
under no obligation to sub-license the Software or provide End User Maintenance
to End Users at the Applicable List Price, but may price the Software and End
User Maintenance in its reasonable discretion.
7.7 Payment Terms. Unless another date is specified in this Agreement, all
payments by Distributor to Primus shall be due within thirty (30) days of the
date of Primus' invoice. Distributor shall make all payments in United States
currency, in readily available funds. Overdue payments shall accrue interest at
the lesser of US prime rate on the date of the invoice plus five percent (5%)
per annum, or the maximum rate permitted by applicable law. If any sums require
conversion into US currency, then the conversion rate shall be that published in
the Wall Street Journal for the fifteenth day of the month in which Primus
delivers its invoice to Distributor or, if no rate is published for the
fifteenth day, the next day on which the rate is published.
7.8 Taxes. As between Distributor and Primus, Distributor shall be solely
responsible for any applicable sales, use, or any value added or similar taxes
(collectively, "Sales Taxes") payable under, or arising out of or in connection
with this Agreement, other than taxes imposed in the United States based upon
Primus' income. Any prices, fee schedules or invoices provided by Primus are
exclusive of any Sales Taxes, unless specifically stated otherwise. If
Distributor has tax-exempt status, Distributors shall provide written evidence
of such status with its purchase orders, in form and content reasonably
satisfactory to Primus. Upon request by Primus, Distributor shall promptly
furnish Primus with copies of tax receipts and other documents evidencing the
withholding and payment of any local taxes applicable to Primus, so that Primus
may file for a tax credit. Distributor shall cooperate with Primus in taking all
such steps and filing all such documents as Primus reasonably requests to
minimize any such withholding.
7.9 Unsold TCI Inventory. License fees payable by Distributor to Primus
pursuant to this Section 7 will be offset by the Credit For Unsold TCI Inventory
indicated on Table E, subject to the limitations of this Section 7.9. Any
amounts payable by Distributor to Primus, for orders of Primus Products during
the period beginning on the Effective Date and ending seven months thereafter,
up to the amount of the Total Credit indicated on Table E, shall be offset by
the Credit for Unsold TCI Inventory. The Credit for Unsold TCI Inventory shall
expire and not apply to any license fees payable for sales of Primus Products
which are made later than seven months after the Effective Date. Distributor
shall have no rights to take any credit for such Unsold TCI Inventory after the
date which is seven months after the Effective Date, or to acquire or sell any
Unsold TCI Inventory.
Section 8. Trademark Matters
8.1 License to Use Trademarks. Primus hereby grants Distributor a non-exclusive
license, with right to sub-license to Sub-Distributors, to use the Trademarks in
the Territory during the Term, solely in connection with: (i) the promotion,
marketing, licensing, and distribution of the Software; and (ii) the provision
of End User Maintenance and of implementation and training services related to
the Software. Primus reserves all other rights to the Trademarks.
8.2 Proprietary Notices; Use of Trademarks; Approval of Promotional Materials.
Distributor shall not remove, obscure or alter any notice of copyright, trade
secret, trademark or other proprietary right appearing in or on any Software or
Documentation or any related packaging and shall ensure that each copy of all or
any portion of the Software or Documentation made by Distributor includes such
notices. Distributor shall clearly indicate the ownership of the Trademarks by
Primus whenever it uses the Trademarks. Distributor shall comply with the
trademark usage guidelines and procedures established by Primus from time to
time. Upon request by Primus, Distributor shall provide Primus with an
opportunity to inspect and approve any packaging, descriptive or promotional
materials pertaining to the Software and Documentation or otherwise containing
references to the Trademarks. Distributor may appropriately use its own
trademarks and trade names in connection with distributing the Software, subject
to Primus' prior written approval. Any goodwill arising out of use of the
Trademarks by Distributor or any Sub-Distributor shall inure solely to the
benefit of Primus.
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8.3 No Infringement. Distributor shall not at any time adopt, use or register
any identical or similar mark or symbol or combination thereof which infringes
any of the Trademarks. If Distributor has already done or attempted to do so,
directly or indirectly, Distributor shall immediately assign all rights to such
mark or symbol to Primus. In no event shall Distributor use the name "Primus" or
any of the Trademarks (whether or not registered) except as expressly permitted
under this Agreement.
Section 9. Warranties
9.1 Distributor's Warranties. Distributor represents and warrants to Primus as
follows:
9.1.1 Authority. The execution and delivery of this Agreement by
Distributor and the performance of the obligations contemplated hereby have been
duly and validly authorized by all necessary legal action on its part, and this
Agreement is legal, valid and binding against Distributor in accordance with its
terms.
9.1.2 No Default. The execution, delivery and performance of this
Agreement by Distributor does not and shall not conflict with any obligation of
Distributor under any agreement or instrument to which Distributor is a party or
by which it is bound.
9.1.3 Adequate Resources. Distributor has sufficient resources and
experience to properly perform its obligations under this Agreement, and shall
commit such resources to its obligations throughout the Term. None of
Distributor's executive officers have any actual knowledge of any existing or
forthcoming event that may materially adversely affect Distributor's ability or
willingness to comply with its obligations under this Agreement.
9.2 Primus' Warranties. Primus represents and warrants to Distributor as
follows:
9.2.1 Organization and Authority. The execution and delivery of this
Agreement by Primus and the performance of the obligations of Primus
contemplated hereby have been duly and validly authorized by all necessary legal
action on its part, and this Agreement is legal, valid and binding against
Primus in accordance with its terms.
9.2.2 No Default. The execution, delivery and performance of this
Agreement by Primus does not and shall not conflict with any obligation of
Primus under any agreement or instrument to which Primus is a party or by which
it is bound.
9.3 Primus Software Warranties.
9.3.1 Media. Primus warrants to Distributor that the media on which the
Primus Software is delivered by Primus will be free from defects in materials
and workmanship for a period of ninety (90) days beginning on the date of
shipment by Primus.
9.3.2 Performance; Year 2000. Primus warrants to Distributor that the
Primus Software as delivered by Primus: (i) will perform in all material
respects in accordance with the applicable specifications set forth in the
applicable Documentation for a period of ninety (90) days beginning on the date
of shipment by Primus; and (ii) is "Year 2000 Compliant." Year 2000 Compliant
for the purposes of this Section 9.3.2 means that the Primus Software, when used
with accurate date data and in accordance with its associated documentation, is
capable of properly processing date data from, into and between the twentieth
and twenty-first centuries, including the years 1999, 2000 and leap years,
provided that all other products (e.g., hardware, software and firm-ware) used
with it properly exchange date data with the Primus Soft-ware.
9.3.3 Infringement. Primus warrants to Distributor that use in accordance
with this Agreement of the Primus Software as delivered by does not infringe:
(i) to the best of Primus' knowledge, any valid copyright in any country in the
Territory, or (ii) to Primus' actual knowledge, any patent or trademark existing
under the laws of any country in the Territory.
9.3.4 Upstream Supplier Software Warranties. Primus warrants to
Distributor that the Upstream Supplier Software, as delivered by Primus to
Distributor, will conform to the warranties specified in Schedule 5.
9.3.5 Bugs and Abatement. Without limiting the foregoing, Primus does not
warrant that the Software is free from all bugs, errors, or omissions. The
warranties in this Section 9.3 shall automatically abate to the extent that the
Software has been damaged, abused, modified, or combined with other software by
Persons other than Primus' authorized employees or representatives, or other
than at Primus' express direction.
9.3.6 Performance Remedy. If any Software fails to comply with the
warranties set forth in Sections 9.3.1 and 9.3.2, and paragraphs A.1, A.2 , B.1
and B.2 of Schedule 5, and if Distributor provides written notice of the non-
compliance to Primus within five (5) business days of expiration of the warranty
period then, except as otherwise specified in Schedule 5, Primus will either
repair or, at its option, replace any non-complying media or Software. If Primus
is unable to correct the
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<PAGE>
noncompliance within sixty (60) days of receipt of such written notice from
Distributor then, except as otherwise specified in Schedule 5, Primus shall, as
Distributor's sole remedy, (i), with respect to non-compliant Initial Software,
promptly refund all of the Software license fees paid by Distributor for such
Software and terminate the Distribution Term with respect to the non-compliant
Software, and (ii), with respect to non-compliant New Software, promptly refund
all of the most recent annual support and maintenance fees paid by Distributor
to Primus and attributable to the development of such New Software, in each case
(i) and (ii) in full and final satisfaction of all and any of Distributor's
claims arising out of media or Software failure.
9.3.7 Infringement Remedy. Primus shall defend and indemnify Distributor
against any proceeding based upon any failure to satisfy the warranties set
forth in Section 9.3.3 and paragraphs A.3 and B.3 of Schedule 5, as
Distributor's sole remedy, provided that: (i) Distributor shall notify Primus in
writing of any claim of infringement promptly after it has been made; (ii)
Primus or its licensors shall have exclusive control over the defense and
settlement of the proceeding; (iii) Distributor shall make no admission of
liability nor enter into any settlement without the prior written agreement of
Primus; (iv) Distributor shall provide such assistance in defense of the
proceeding as Primus or its licensors may reasonably request, at Primus'
reasonable expense; and (v) Distributor shall comply with any court order or
settlement made in connection with the proceeding. If use of the Software is, or
in Primus' reasonable opinion is likely to become, the subject of a claim of
infringement of any intellectual property right of any third party, then Primus
may: (a) procure the continuing right of Distributor to use the Software; (b)
replace or modify the Software in a functionally equivalent manner so that it no
longer infringes; or (c) except as otherwise specified in Schedule 5, terminate
the Distribution Term with respect to the Software subject to the infringement
claim and refund to Distributor an amount equal to the depreciated license fees
paid by Distributor for such Software (calculated on a straight line basis over
a five (5) year life).
9.3.8 Warranties Repeated For Replacements and New Software. The
warranties and other provisions of this Section 9.3 shall be automatically
repeated for any modifications of the Software delivered to remedy any non-
compliance with the warranties under Sections 9.3.1 and 9.3.2 and for any New
Software, in each case upon shipment of the same by Primus to Distributor.
9.3.9 Disclaimer Of Implied Warranties. Primus makes no representation or
warranty in connection with the Software, except as set forth in Sections 9.3.1
- - 9.3.4. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 9.3, AND EXCEPT FOR
DEATH OR BODILY INJURY THAT RESULTS FROM PRIMUS' PROVEN WILLFUL MISCONDUCT OR
NEGLIGENCE, PRIMUS DISCLAIMS AND DISTRIBUTOR WAIVES AND RELEASES ALL RIGHTS AND
REMEDIES OF DISTRIBUTOR, AND ALL WARRANTIES, OBLIGATIONS, AND LIABILITIES OF
PRIMUS, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY
BUG, ERROR, OMISSION, DEFECT, DEFICIENCY, OR NONCONFORMITY IN ANY SOFTWARE OR
OTHER ITEMS FURNISHED UNDER THIS AGREEMENT OR THE SUPPORT AND MAINTENANCE
AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY: (A) IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) IMPLIED WARRANTY
ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; (C)
CLAIM OF INFRINGEMENT; AND (D) STATUTORY REMEDIES.
Section 10. Term and Termination
10.1 Term and Automatic Renewal. Unless sooner terminated pursuant to Sections
10.1.1 and 10.1.2 below, or as provided elsewhere in this Agreement, the Term of
this Agreement shall expire as specified in Table A. Expiration of the Term
shall not, in and of itself, cause the termination of License Agreements with
End-Users. The expiring Term shall automatically renew for a period of two
succeeding calendar years if Distributor has met or exceeded its Performance
Goals for both year 1 and year 2 from the Effective Date of this Agreement, and
in such event, a Renewal Effective Date shall be established. The Renewal
Effective Date will be substituted for the Effective Date in the preceding
sentence and the same methodology will be used to assess Distributor's
achievement of Performance Goals for subsequent years and further extension(s)
of the Term. In the event Distributor does not achieve Performance Goals for any
year subsequent to the Renewal Effective Date, the Agreement shall expire at the
end of its then current Term, unless Primus elects at its sole discretion to
extend the Term. Distributor's achievement of Performance Goals only for year 2
and year 3 from Effective Date of this Agreement will not result in automatic
renewal, but will given significant consideration by Primus as part of its
evaluation process for discretionary renewal.
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<PAGE>
10.1.1 Earlier Termination by Either Party. Either party may immediately
terminate the Term at any time if: (i) any proceedings are commenced by, for or
against the other party under any bankruptcy, insolvency or debtor relief law
and are not dismissed within thirty (30) days; or (ii) the other party has
materially breached its obligations under this Agreement and has not cured such
failure within thirty (30) days of notification of the breach by the non-
breaching party.
10.1.2 Earlier Termination by Primus. Primus may immediately terminate the
Term at any time if: (i) Distributor has engaged in the development or
distribution of any product which competes with the Software; (ii) Distributor
has challenged the validity or exclusivity of any of the intellectual property
rights of Primus or its licensors (including without limitation the Trademarks
and/or Primus' Confidential Information); or (iii) Distributor has failed to
make a payment when due under Section 7 above, and has not cured such failure
within ten (10) business days following written notice from Primus; or (iv) the
ownership of fifty percent (50%) or more of the Distributor is sold or otherwise
transferred.
10.2 Local Termination Liabilities. Primus shall have no liability for early
termination of the Term in accordance with the provisions of this Agreement,
including without limitation any liability for goodwill that has been
established, or for any damages on account of prospective profits or anticipated
sales. Distributor waives, and shall ensure that each Sub-Distributor waives any
and all rights, claims and causes of action against Primus arising out of any
such termination.
Section 11. Post Termination Obligations
Upon any termination of the Term:
11.1 Distributorship. Distributor shall immediately: (i) pay Primus any sums
that are outstanding under this Agreement, the due dates of which shall be
automatically accelerated to the date of termination; (ii) discontinue any
representations that it is an authorized distributor of the Software or of
Primus; and (iii) except to the extent required by Distributor to provide End
User Maintenance to End Users, permanently delete all copies of any of the
Software from the hard drives of all computers in Distributor's possession or
under its control, destroy all other media in Distributor's possession or under
its control on which any of the Software is stored, certify the same in writing
to Primus, and return to Primus all copies of the Documentation and Primus'
Confidential Information then in Distributor's possession or under its control.
11.2 Inventory. Primus shall refund to Distributor the fees paid by Distributor
for any Documentation and any related packaging that Distributor returns to
Primus within thirty (30) days of termination of the Term or this Agreement, but
only to the extent that (i) the Documentation and related packaging is in the
same condition as it was when shipped to Distributor, and (ii) the Documentation
and related packaging is for the then current versions of the applicable
Software.
11.3 Interim Orders. Primus may (i) reject all or part of any orders received
from Distributor after notice but prior to the effective date of termination, or
(ii) require Distributor's performance of any outstanding orders,
notwithstanding the fact that delivery dates for such orders may extend beyond
the effective date of termination.
11.4 Ongoing Installation Programs. With Primus' prior written consent, not to
be unreasonably withheld or delayed, Distributor shall complete all
implementation and training programs which, prior to receiving notice of
termination, it had agreed to provide to End Users.
11.5 Assignment of Agreements. Distributor shall offer to assign to Primus or
Primus' designee all License Agreements, Evaluation Agreements, Support and
Maintenance Agreements and Sub-Distribution Agreements entered into by
Distributor or any Sub-Distributor. To the extent that Primus or its designee
accept such assignment:
11.5.1 Primus' Assumption of Obligations. Primus or its designee shall
assume Distributor's obligations: (i) to End Users under License Agreements and
Support and Maintenance Agreements, (ii) to Evaluators under Evaluation
Agreements, and (iii) to Sub-Distributors under Sub-Distributor Agreements.
11.5.2 End User Installment Payments. Primus shall pay to Distributor all
fees paid to Primus under the assigned agreements by the End User, Evaluator or
Sub-Distributor (the "Pre-Assignment Fees"), but only to the extent that
Distributor has already paid Primus the fees due under this Agreement for the
Software or support and maintenance to which the Pre-Assignment Fees relate.
11.5.3 End User Prepayments. Distributor shall pay to Primus or Primus'
designee the amount representing the unused portion of all End User Maintenance
fees that have been prepaid by End Users as of the assignment date, less Primus
Maintenance fees for such unused portions that Distributor has already paid to
Primus. Unused portions of support and maintenance fees shall be determined by
multiplying the total fees for
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<PAGE>
the relevant term (the "Relevant Term") by a fraction, the numerator of which is
the number of days of the Relevant Term remaining, and the denominator of which
is the total number of days of the Relevant Term.
Section 12. Indemnification
Distributor shall defend, indemnify and hold Primus harmless from and against
any loss, liability, damages or expense (including attorneys' and other experts'
fees) incurred by Primus and arising out of: (i) any warranty, representation,
indemnity, guarantee or similar assurance, and any related remedy, provided by
Distributor or any Sub-Distributor with respect to the Software, the
Documentation or the End User Maintenance to the extent that any of them exceed
the warranties and remedies provided by Primus to Distributor under Section 9.3
of this Agreement; (ii) any omission or inaccuracy in Distributor's or Sub-
Distributor's verbal or written statements, advertisements and promotional
materials that relate to Primus, the Software, the Documentation or the End User
Maintenance; or (iii) any failure by Distributor or any Sub-Distributor to
comply promptly with their obligations under the provisions of this Agreement
headed "Governmental Compliance" (Section 3.8) and "Taxes; Withholding."
(Section 7.8).
Section 13. Dispute Resolution and Other Provisions; Schedules
13.1 Dispute Resolution and Other Provisions. Dispute resolution and other
provisions are contained in Schedule 6.
13.2 Schedules. Each of the Schedules and Exhibits listed below shall be
incorporated into and shall for all purposes be deemed a part of this Agreement:
Schedule 1 - Confidential Information Agreement
Schedule 2 - End User Agreement Forms
Schedule 3 - Secondline Support
Schedule 4 - Initial Sub-Distributors
Schedule 5 - Upstream Supplier Warranties
Schedule 6 - Dispute Resolution and Other Provisions
Schedule 7 - Seagate Products License Restrictions
Exhibit A - Distributor's Form of Purchase Order
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PRIMUS KNOWLEDGE SOLUTIONS, INC.
Software Marketing and Distribution Agreement
Schedule 1
Confidential Information Agreement
Page 17 of 27
<PAGE>
PRIMUS KNOWLEDGE SOLUTIONS, INC.
Software Marketing and Distribution Agreement
Schedule 2
End User Agreement Forms
Page 18 of 27
<PAGE>
PRIMUS KNOWLEDGE SOLUTIONS, INC.
Software Marketing and Distribution Agreement
Schedule 3
Secondline Support
Section 1. Definitions.
For the purposes of this Schedule, the following capitalized words and phrases
shall be ascribed the following meanings:
1.1 "Error" means the failure of any Software program to conform in any
material respect to its published Documentation.
1.2 "Fix" shall mean a modification or an addition to a Software program or its
Documentation that overcomes an Error when made or added to such program or
Documentation.
1.3 "Workaround" means a set of procedures that Distributor may follow to
circumvent or mitigate the impact of an Error, notwithstanding that the Error
still exists. Primus may provide a Workaround in lieu of a Fix in Primus' sole
discretion.
1.4 Other Defined Terms. Other capitalized words and phrases shall have the
meanings ascribed to them in Section 1 of the Software Marketing and
Distribution Agreement of which this Schedule is part.
Section 2. Primus' Provision of Secondline Support.
2.1 Technical Support. Primus shall provide telephone, fax and electronic
support to Distributor from its Seattle office regarding use of the Software and
resolution of Errors Monday through Friday from 6.30 a.m. to 5:30 p.m. local
time at such office. In addition, Primus shall make on-call technical support
staff available for High Priority situations (as defined in Section 2.2.1 below)
twenty-four (24) hours a day, seven (7) days a week. Primus shall provide such
support to one (1) support contact designated by Distributor who shall be
knowledgeable in all aspects of Distributor's and End Users' operating
environments.
2.2 Support Response. Primus will assign all Distributor requests for Error
support one of three response priorities. The priorities will dictate the timing
and nature of the response as follows:
2.2.1 High Priority. A major feature/function of the Software is not
working or the system integrity is at risk.
Response Goal: Primus shall use all commercially reasonable efforts to
provide a Fix or Workaround to Distributor within forty eight (48) hours of
Distributor's report of the problem. If Primus cannot provide the Fix or
Workaround within the forty-eight (48) hours Primus will dedicate resources to
the problem resolution and will inform Distributor on a daily basis of the
resolution status.
2.2.2 Medium Priority. An End User's work flow is inhibited or a non-major
feature/function of the Software is not working.
Response Goal: Primus shall use all commercially reasonable efforts to
provide a Fix or Workaround to Distributor within four (4) business days of the
Distributor's report of the problem. If Primus cannot resolve the problem within
the four (4) business days, Primus will inform Distributor on a weekly basis of
the resolution status.
2.2.3 Low Priority. An End User has a problem which is not seriously
impacting Distributor's workflow.
Response Goal: Primus shall use all commercially reasonable efforts to
provide a Fix or a Workaround to Distributor within seven (7) business days of
Distributor's report of the problem. If Primus cannot resolve the problem within
the seven (7) business days, Primus will provide Distributor with a status
evaluation regarding the ultimate resolution.
2.3 On-Site Visits. If Primus and Distributor mutually determine that Primus
may more effectively resolve a High Priority Error with an on-site visit to
Distributor's or the End User's relevant location, then Distributor shall be
responsible for Primus' reasonable travel and living expenses incurred in
conducting such visit. If Distributor requests Primus to attend on-site for any
other purpose, and Primus agrees, then Distributor shall pay Primus for Primus'
services on a time and materials basis, at Primus' then current daily rates for
the Territory, and shall reimburse Primus for Primus' reasonable travel and
living expenses.
2.4 Access to Primus' Knowledgebase. To the extent reasonably determined
necessary by Primus, Primus shall provide Distributor with access to Primus'
knowledgebase of solutions to Software Errors. Distributor shall comply with
Primus' reasonable security precautions related to such access, and shall treat
all knowledgebase information as Confidential Information of Primus; provided,
however, that Distributor may disclose Error solutions to End Users as part of
its End User Maintenance obligations, but only as confidential
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<PAGE>
information under an effective non-disclosure agreement between Distributor and
the End User.
2.5 Distributor Cooperation. Distributor acknowledges that Primus may not be
able to resolve an Error if Distributor and any affected End User do not use all
commercially reasonable efforts to cooperate with and assist Primus in resolving
the Error (including, without limitation, in replicating the Error, in
retrieving workstation, server and log file data relating to the Error, and in
providing Primus with remote access to Distributor's or the End User's
installation for support purposes).
2.6 Scope of Secondline Support Services. Primus shall have no obligation to
correct Errors or support queries arising from any misuse or alteration of the
Software by any Person other than Primus, failure or fluctuation of electrical
power, maintenance of the Software by anyone other than Primus or Primus'
authorized representatives, or the combination or merging of the Software by any
Person other than Primus with any hardware or software not identified as
compatible by Primus. Primus shall have no obligation to correct Errors or
support Software programs except with respect to the then current and next last
current "Major Releases." "Major Releases" means a new release of a Software
program with a change in the YY component of that Software program's X.YY.ZZ
version number. It shall be a condition to Primus' provision of Secondline
Support that Distributor shall be current on its Support and Maintenance fee
payments for all of the Software.
Page 20 of 27
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PRIMUS KNOWLEDGE SOLUTIONS, INC.
Software Marketing and Distribution Agreement
Schedule 4
Initial Sub-Distributors
Initial Sub-Distributors
Fujitsu Chubu Systems, Toshiba Information Systems, Hitachi Seisakusho, NTT
Software, NEC Software, Canon Hanbai, Kyowa Technologies, IBM Japan and NEC.
Page 21 of 27
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PRIMUS KNOWLEDGE SOLUTIONS, INC.
Software Marketing And Distribution Agreement
Schedule 5
Upstream Supplier Software Warranties
A. Knowledge Broker Solution ("KBI") Support Suite Warranties
1. Media. The media on which the KBI Software is delivered by Primus will be
free from defects in materials and workmanship for a period of ninety (90) days
beginning on the date of shipment by Primus.
2. Performance; Year 2000. The KBI Software as delivered by Primus: (i) will
perform in all material respects in accordance with the applicable
specifications set forth in the applicable Documentation for a period of ninety
(90) days beginning on the date of shipment by Primus; and (ii) is "Year 2000
Compliant." Year 2000 Compliant means, for the purposes of this paragraph A.2,
that the KBI Software, when used with accurate date data and in accordance with
its associated documentation, is capable of properly processing date data from,
into and between the twentieth and twenty-first centuries, including the years
1999, 2000 and leap years, provided that all other products (e.g., hardware,
software and firm-ware) used with it properly exchange date data with the KBI
Software.
3. Infringement. To Primus' knowledge, use in accordance with this Agreement of
the KBI Software as delivered by Primus to Distributor does not infringe any
valid copyright, patent or trademark existing under the laws of the Territory.
- --------------------------------------------------------------------------------
B. Seagate Crystal Info v.6 Warranties
1. Media. The media on which the Seagate Software is delivered by Primus will
be free from defects in materials and workmanship for a period of ninety (90)
days beginning on the date of shipment by Primus.
2. Performance; Year 2000. The Seagate Software as delivered by Primus: (i)
will perform substantially in accordance with the applicable specifications set
forth in the applicable Documentation in all material respects for a period of
ninety (90) days beginning on the date of shipment by Primus; and (ii) is "Year
2000 Compliant." Year 2000 Compliant means, for the purposes of this paragraph
B.2, that the Seagate Software will (i) under normal use and service, record,
store, process, and present calendar dates falling on or after January 1, 2000,
in the same manner, and with the same functionality, as such Seagate Software do
with dates falling on or before December 31, 1999; and (ii) lose no
functionality with respect to the introduction of records containing dates
falling on or after January 1, 2000. Notwithstanding the foregoing, if the date
related functionality of the Seagate Software relies upon the operating system
on which it is running or the software to which it interfaces, then the above
limited warranty applies only to the extent that such operating system and other
software properly exchanges date data with the Seagate Software.
3. Infringement. To the best of Primus' knowledge, use in accordance with this
Agreement of the Seagate Software as delivered by Primus does not infringe any
valid patent or copyright in the Territory, nor any trademark rights of a third
party based on the laws of the United States, Canada, Japan, New Zealand,
Australia, South Africa, or any country in Europe or South America.
Page 22 of 27
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PRIMUS KNOWLEDGE SOLUTIONS, INC.
Software Marketing and Distribution Agreement
Schedule 6
Dispute Resolution And Other Provisions
Dispute Resolution
1.1 Governing Law. This Agreement shall be governed by and interpreted in
accordance with the internal laws of the State of Washington, and, where such
laws are preempted by the laws of the United States, by the internal laws of the
United States, in each case without regard to (a) conflicts of laws principles,
and (b) the applicability, if any, of the United Nations Convention on Contracts
for the International Sale of Goods. The governing language for this Agreement,
for the transactions contemplated hereby, for any notices, instruments or other
documents or media transmitted or delivered hereunder, and for the negotiation
and/or resolution of any dispute or other matter between the parties, shall be
the English language. In the event of any conflict between the provisions of any
document and an English version thereof, the provisions of the English version
shall prevail. Distributor hereby waives all and any rights it may have under
any law in any country or portion thereof to have the Agreement written in any
language other than English. In transactions between the parties, a decimal
point shall be indicated by a period, and not by a comma. Notice periods shall
be determined by reference to the local time of the notice recipient.
1.2 Mediation. In the event of any controversy or claim arising out of or
relating to this Agreement or the breach or interpretation thereof, the parties
shall, upon five days notice from either one to the other, submit themselves and
the subject-matter of the dispute to mediation before an independent mediator to
be appointed by the head office of the American Arbitration Association. Costs
of mediation shall be borne equally between the parties.
1.3 Arbitration. If the parties remain in dispute following the mediation, then
the controversy or claim shall be determined by arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration Association by a
single, disinterested arbitrator appointed in accordance with such Rules. The
determination of the arbitrator shall be final, conclusive and binding. Judgment
upon the award rendered may be entered in any court of any state or country
having jurisdiction.
1.4 Conduct. Each party shall ensure that any mediation and arbitration are
conducted as speedily as is reasonably possible, and that all and any
information disclosed during or in connection with the arbitration is treated by
each party with the strictest confidence.
1.5 Interim and Permanent Relief. Upon the application of either party to this
Agreement, and whether or not an arbitration or mediation has yet been
initiated, all courts having jurisdiction over one or more of the parties are
authorized to: (i) issue and enforce in any lawful manner such temporary
restraining orders, preliminary injunctions and other interim measures of relief
as may be necessary to prevent harm to a party's interests or as otherwise may
be appropriate pending the conclusion of arbitration proceedings pursuant to
this Agreement; and (ii) enter and enforce in any lawful manner such judgments
for permanent equitable relief as may be necessary to prevent harm to a party's
interests or as otherwise may be appropriate following the issuance of arbitral
awards pursuant to this Agreement.
1.6 Venue. Any mediation or arbitration conducted under or in connection with
this Agreement shall take place in Seattle, Washington, at a time to be
determined by the mediator or arbitrator, as the case may be.
1.7 Legal Expenses. If any proceeding is brought by either party to enforce or
interpret any term or provision of this Agreement, the substantially prevailing
party in such proceeding (as determined by the arbitrator in its sole
discretion) shall be entitled to recover, in addition to all other relief
arising out of this Agreement, such party's reasonable attorneys' and other
experts' (including without limitation accountants) fees and expenses (as
determined by the arbitrator in its sole discretion.
2. Excused Performance; Force Majeure. If the performance of this Agreement is
adversely restricted by reason of any circumstances beyond the reason-able
control and without the fault or negligence of the party affected, then the
party affected, upon giving prompt written notice to the other party, shall be
excused from such performance on a day-to-day basis to the extent of such
restriction (and the other party shall likewise be excused from performance of
its obligations on a day-to-day basis to the extent such party's obligations
relate to the performance so restricted); provided, however, that the party so
affected shall use all commercially reasonable efforts to avoid or remove such
causes of non-performance and both parties shall proceed whenever such causes
are removed or cease.
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3. Exclusion of Certain Claims. IN NO EVENT SHALL PRIMUS BE LIABLE (WHETHER IN
TORT OR CONTRACT, UNDER STATUTE OR OTHERWISE) FOR ANY INDIRECT, SPECIAL,
CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR
LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION AND THE LIKE,
ARISING OUT OF ITS PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT OR THE USE,
INABILITY TO USE OR RESULTS OF USE OF THE SOFTWARE, EVEN IF PRIMUS HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4. Limitation of Liability. Primus' liability arising out of this agreement
shall in no event exceed the fees paid by Distributor to Primus under this
Agreement.
5. Equitable Relief. Each of Distributor and Primus acknowledges that damages
will be an inadequate remedy if the other violates the terms of this Agreement,
or otherwise fails to perform its obligations hereunder. Accordingly, subject to
Section 1 of this Schedule, each of them shall have the right, in addition to
any other rights each of them may have, to obtain in any court of competent
jurisdiction, temporary, preliminary and permanent injunctive relief to restrain
any breach, threatened breach, or otherwise to specifically enforce any of the
obligations in this Agreement.
6. Waiver. No waiver of or with respect to any provision of this Agreement, nor
consent by a party to the breach of or departure from any provision of this
Agreement, shall in any event be binding on or effective against such party
unless it be in writing and signed by such party, and then such waiver shall be
effective only in the specific instance and for the purpose for which given.
7. Captions and Headings. The captions and headings are inserted in this
Agreement for convenience only, and shall not be deemed to limit or describe the
scope or intent of any provision of this Agreement.
8. Severability; Invalidity. If any provision of this Agreement is held to be
invalid, such invalidity shall not render invalid the remainder of this
Agreement or the remainder of which such invalid provision is a part. If any
provision of this Agreement is so broad as to be held unenforceable, such
provision shall be interpreted to be only so broad as is enforceable.
9. Assignment. Distributor shall not assign any of its rights this Agreement
without the prior written consent of Primus, which shall not be unreasonably
withheld. Subject to the foregoing restriction on assignment by Distributor,
this Agreement shall be binding upon, inure to the benefit of and be enforceable
by the parties and their respective successors and assigns. Primus may assign
all or any of its rights to enforce this Agreement to any licensor of Primus.
10. Notices. Any notice or other communication under this Agreement given by
either party to the other party shall be deemed to be properly given if given in
writing and delivered: (i) by facsimile transmission (receipt confirmed); or
(ii) by internationally recognized private courier, (e.g., Federal Express)
properly addressed and prepaid, to the recipient at the address identified on
the first page of this Agreement. Either party may from time to time change its
address by giving the other party notice of the change in accordance with this
Section.
11. Entire Agreement; Amendments. This Agreement constitutes and embodies the
entire agreement and understanding between the parties with respect to the
subject matter hereof and supersedes all prior or contemporaneous written,
electronic or oral communications, representations, agreements or understandings
between the parties with respect thereto. This Agreement may not be modified or
amended except by a written instrument executed by both parties. Only executive
officers of Primus shall have authority to amend this Agreement on behalf of
Primus. In the event of any conflict between the provisions of this Agreement
and the terms of any form of purchase order or invoice (including without
limitation any attached as a schedule or exhibit to this Agreement), the
provisions of this Agreement shall prevail. Distributor's standard terms of
purchase, if any, are inapplicable.
12. Counterparts. This Agreement and any amendments hereto may be executed in
one or more counterparts, which taken together shall constitute a single
agreement between the parties.
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PRIMUS KNOWLEDGE SOLUTIONS, INC.
Software Marketing and Distribution Agreement
Schedule 7
Seagate Licensing Restrictions
- --------------------------------------------------------------------------------
SEAGATE'S MINIMUM TERMS OF END USER LICENSE
- --------------------------------------------------------------------------------
To the extent that the Seagate products are not shipped by Primus subject to a
shrink-wrap or click-wrap license agreement, each End User License must contain
the following minimum (or substantially similar), terms and conditions
applicable to Seagate Products (sometimes for purposes of this Exhibit D, the
"Software"), modified as necessary for multi-copy packages:
APPLICABLE TO ALL SEAGATE PRODUCTS:
1. GRANT OF LICENSE. The End User is granted a personal, nonexclusive license
to use a single copy of the software program, including any updates,
additional modules, or additional software provided by Seagate in
connection therewith (the "Software") solely for End User's own use in
conjunction with the OEM Product or System, and solely in accordance with
the terms and conditions of this license agreement. End User may copy the
Software into the memory of any computer, solely as necessary to use the
Software in accordance with this license agreement.
2. OEM PRODUCT ACCESS. The license granted is qualified, in that the End
User's licensed copy of the Seagate Software may only be used with the
third party (OEM) product with which it was provided. Accessing data that
is not created by, or used by, the third party (OEM) product is in
violation of the End User's license.
3. THIRD PARTY BENEFICIARY. End User is notified that Seagate Software
Information Management Group, Inc., ("Seagate") is a third-party
beneficiary to the End User License to the extent it relates to use of the
Seagate Software. Such provisions are made expressly for the benefit of
Seagate and are enforceable by both OEM and Seagate.
4. COPYRIGHT AND COPIES. The Software (including any copy thereof), is owned
by Seagate or its suppliers and is protected by United States copyright and
patent laws and international treaty provisions. The Software copy is
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10. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software and accompanying
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"commercial computer software documentation," respectively, pursuant to
DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use,
modification, reproduction release, performance, display or disclosure of
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license agreement.
Page 25 of 27
<PAGE>
End User must affix the following legend to each copy of the Software:
Use, duplication, reproduction, or transfer of this commercial Software and
accompanying documentation is restricted in accordance with FAR 12.212 and DFARS
227.7202 and by a license agreement. Contact Legal Department, Seagate
Software, P.O. Box 67427, Scotts Valley, California, 95067 U.S.A.
SPECIFIC SEAGATE PRODUCT USE RESTRICTIONS:
A. CRYSTAL INFO:
INSTALLATION AND USE. Seagate Crystal Info 6.0 is licensed to End User in
a combination of three potential Modules: (1) Client License (2) OLAP
Add-In License and (3) Report/Query Add-In License. Each licensed version
of the Software includes one Administrator ID, which shall correspond to a
single, designated individual (the "Administrator"). The Administrator may
install and use the components as set forth in the Client License, OLAP
Add-In License and Report/Query Add-In License; solely to facilitate
licensed use of the applicable Module(s). The End User must possess an
individual license and accompanying authorized Unique User ID ("UUID")
permitting access to and use of the Module(s) licensed. End User may
install and use (in the manner provided) only the Module(s) (including
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(1) Client License. Provided the total number of copies used or installed
at any one time does not exceed the number of licenses purchased or
UUIDs authorized(as set forth in End User's Client License pack) End
User may use the Client License (including the stated components) to
view, schedule and analyze existing reports as follows: (a) End User
may install Info Server, Info Administrator, Info Views, Info APS,
Sentinel, Info Analyzer, Info OLAP Server and Info Desktop (except
that End User may not schedule cubes) on one or more computers under
End User's control, and (b) End User may install the Info WebAccess
Server on one or more web servers to provide access by authorized End
Users via web browser; except that any End User who is not licensed to
use the OLAP Add-In License may not access or use the Info Worksheet
for Java component. Web browser access may be used in addition to
access via Info Desktop client software. Provided one copy of "client"
(but not "server") components of Crystal Info 6.0 is installed only on
the permanent memory of a single desktop computer, and that computer
is used by one authorized End User at least 80% of the time the
computer is in use, that same end user may make one copy of such
client components to use on a portable or home computer primarily used
by such authorized End User.
(2) OLAP Add-In License. End User may install and use the components as
set forth in the Client License. Subject to the same use conditions
placed on components of the Client License, End User may install and
use the Info Cube Designer to design OLAP cubes; Info Desktop to
schedule OLAP cubes; and Info Worksheet or Info Worksheet for Java (as
provided in the Info WebAccess Server and Info OLAP Server), to view
and manipulate OLAP cube information. End User may not design reports
unless End User is licensed to use the Report/Query Add-In License.
(3) Report/Query Add-In License. End User may install and use the
components as set forth in the Client License. Subject to the same use
conditions placed on components of the Client License, End User may
install and use Info Report Designer and Info Query Designer to design
reports and queries from relational or multidimensional databases. End
User may use the reports to populate Info Folders of other authorized
End Users.
Page 26 of 27
<PAGE>
PRIMUS KNOWLEDGE SOLUTIONS, INC.
Software Marketing and Distribution Agreement
Exhibit A
Distributor's Form of Purchase Order
Page 27 of 27
<PAGE>
EXHIBIT 10.18
LEASE AMENDMENT II
The parties to this Amendment are Westlake Center Associates Limited
Partnership, a Washington limited partnership, hereinafter called "Lessor", and
PRIMUS KNOWLEDGE SOLUTIONS, INC. formerly doing business as PRIMUS
COMMUNICATIONS, formerly known as SYMBOLOGIC CORPORATION hereinafter called
"Lessee."
Whereas the parties hereto have heretofore entered into a Lease executed
under the date of July 28, 1995, in and to 8,065 square feet on the Eighteenth
Floor and 16,660 square feet on the Nineteenth Floor, for a combined total of
24,725 square feet, known as Suite 1900, and further amended by a Lease
Amendment executed under the date of January 27, 1999 in and to 11,686 square
feet on the Eighteenth Floor and 16,660 square feet on the Nineteenth Floor, for
a combined total of 28,346 square feet, known as Suite 1900 the following
described premises in the City of Seattle, County of King, State of Washington,
to wit:
Lots 1, 2, 3, 7, 8, 9, 10, 11 and 12, Block 1, ADDITION TO
THE TOWN OF SEATTLE as laid off by the Heirs of SARAH A.
BELL, deceased (commonly known as Heirs of SARAH A. BELL'S
ADDITION TO THE CITY OF SEATTLE) according to the plat
recorded in Volume 1 of Plats, page 103, in King County, Washington;
EXCEPT the Southwesterly 12 feet of said Lots 1, 2 and 3
condemned by the City of Seattle in King County Superior
Court Cause No. 52280, for the widening of Fourth Avenue, as
provided by Ordinance 13776 of said City; and
EXCEPT the Southeasterly 7 feet of said Lots 1 and 12
condemned by the City of Seattle, in King County Superior
Court Cause No. 57057 for the widening of Pine Street as
provided by Ordinance 14500 of said City;
TOGETHER WITH all of the vacated alley lying within said
Block 1. The Property is generally bounded by Fifth Street
on the east, Pine Street on the south, Fourth Avenue on the
west, and Olive Way on the north.
Whereas the parties desire to renew the Lease and expand the Premises by an
additional 4,974 square feet of Net Rentable Area on the 18th Floor and 16,430
square feet of Net Rentable Area on the 10th Floor for a total expansion of
21,404 square feet of Net Rentable Area of said Lease. Now, therefore, for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties agree to amend the Lease, effective June 1, 2000, as
follows:
1. Section 1(b), Premises, is amended to show that the square footage of
the Premises has been revised from 28,346 S.F. to 49,750 S.F.
Therefore, Section 1(b), Premises, is amended to read as follows:
"Premises: Consisting of 16,660 square feet of net rentable area on
the 19th floor 16,660 square feet of net rentable area on the 18th
floor and 16,430 square feet of net rentable area on the 10th floor
for a combined total of 49,750 square feet of net rentable area of the
building, as outlined on the floor plan attached hereto as Exhibit C-
2, including tenant improvements, if any, as described in Exhibit A-
2."
Section 1(b), Premises, is further amended to allow Lessor to re-
measure the Premises during the term of this Amendment using the
current the BOMA standard for measurement provided, however, that said
measurement shall not alter Lessee's Basic Monthly Rent as stipulated
in this Lease Amendment II.
2. Section 1(c), Floor Areas, is amended to show that the agreed rentable
area of the Premises has been revised from 28,346 square feet to
49,750 square feet. Therefore, Section 1(c) is amended to read as
follows:
"The agreed net rentable area of the Premises is 49,750 square feet
and of the building is 335,850 square feet."
1
<PAGE>
3. Section 1(e), Commencement Date, is amended to show the terms for the
Lease Renewal and Lease Expansion spaces commence- as follows:
<TABLE>
<CAPTION>
Suite Square Footage Commencement Date Renewal/Expansion
- ----- -------------- ----------------- -----------------
<S> <C> <C> <C>
1815 1,475 June 1, 2000 Expansion
1000 16,430 September 1, 2000 Expansion
1800 3,499 November 1, 2000 Expansion
1801 11,686 November 1, 2000 Renewal
1900 16,660 November 1, 2000 Renewal
------
TOTAL 49,750
</TABLE>
4. Section 1(f), Expiration Date, for the existing 28,346 square feet is
amended by deleting October 31, 2000 and inserting October 31, 2005 as
the new Lease expiration date. The expiration date for the 21,404
square feet of expansion space shall be co-terminus with the 28,346
square feet. Therefore, the expiration date for the 49,750 square feet
shall be October 31, 2005.
5. Section 1(j), Exhibits, is amended to include the attached Exhibit A-
2, Tenant Improvements for Expansion and Existing Space, replacing the
existing Exhibits A and A-1.
6. Section 1(j), Exhibits, is amended to include the attached Exhibit C-
2, The Premises - Existing and Expansion, replacing the existing
Exhibits C and C-1.
7. Attachment II, Special Provision #2, Monthly Rent, shall be amended to
include an additional 21,404 net rentable square feet and include a
rental rate structure for the Renewal Term. Therefore, the rental
rate structure in Attachment II, Special Provision #2, of the Lease
Agreement, shall be adjusted to reflect increases to the Net Rentable
Area, Term Extension and Monthly Rent upon substantial completion of
the tenant improvements as outlined in the attached Exhibit A-2 as
follows:
<TABLE>
<CAPTION>
Square Basic Basic
Feet of Annual Monthly
Period NRA Floor Rental Rate Rent
- ---------------------------------- ------ ------- ----------- -----------
<S> <C> <C> <C> <C>
06/01/00 - 10/31/02 1,475 18th $33.00 $ 4,056.25
09/01/00 - 10/31/02 16,430 10th $30.00 $ 41,075.00
11/01/00 - 10/31/02 15,185 18th $33.00 $ 41,758.75
11/01/00 - 10/31/02 16,660 19th $33.00 $ 45,815.00
------ -----------
TOTAL: 49,750 $132,705.00
Square Basic Basic
Feet of Annual Monthly
Period NRA Floor Rental Rate Rent
- ---------------------------------- ------ ------- ----------- -----------
11/01/02 - 10/31/03 16,430 10th $31.00 $ 42,444.17
11/01/02 - 10/31/03 16,660 18th $34.00 $ 47,203.33
11/01/02 - 10/31/03 16,660 19th $34.00 $ 47,203.33
------ -----------
TOTAL: 49,750 $136,850.83
Square Basic Basic
Feet of Annual Monthly
Period NRA Floor Rental Rate Rent
- ---------------------------------- ------ ------- ----------- -----------
11/01/03 - 10/31/05 16,430 10th $32.00 $ 43,813.33
11/01/03 - 10/31/05 16,660 18th $35.00 $ 48,591.67
11/01/03 - 10/31/05 16,660 19th $35.00 $ 48,591.67
------ -----------
TOTAL: 49,750 $140,996.67
</TABLE>
2
<PAGE>
8. Attachment I, Special Provision #23, Brokers, is deleted in its
entirety and replaced with a new Special Provision #23, Brokerage
Fees, as follows:
"Lessor shall pay Colliers Macaulay Nicolls International a brokerage
fee as follows:
Brokerage Fee Brokerage
Suite Square Footage Per Square Foot Commission
----- -------------- --------------- -----------
1815 1,475 $3.50 $ 5,162.50
1000 16,430 $3.50 $ 57,505.00
1800 3,499 $3.50 $ 12,246.50
1801 11,686 $1.75 $ 20,450.50
1900 16,660 $1.75 $ 29,155.00
TOTAL: 49,750 $124,519.50
Lessee warrants that it has had no dealings with any real estate
broker or agent in connection with the negotiation of this Lease
Amendment II excepting only Colliers Macaulay Nicolls International
and it knows of no other real estate broker or agent who is entitled
to a commission in connection with this Lease Amendment II."
9. Attachment II, Special Provision #6, Parking, is hereby amended to
show that Lessee shall have the option to enter into parking contracts
for up to seventeen (17) additional parking contracts for a total of
forty (40) parking contracts. Said contracts shall be available upon
commencement of expansion spaces as follows:
Commencement Date of Expansion Parking Contracts Available
------------------------------ ---------------------------
June 1, 2000 One (1)
September 1, 2000 Thirteen (13)
November 1, 2000 Three (3)
Tenants may use these parking contracts throughout the term of this
Agreement at the prevailing rate charged by the operator of the garage
plus all applicable Washington State and local taxes. Additional
parking may be taken with any future expansion in the building at a
ratio of 1/1,200 square feet of Net Rentable Area at the prevailing
rate charged by the operator of the garage plus all applicable
Washington State and local taxes.
10. Attachment II, Special Provisions, Number 3, Lease Renewal Options is
hereby deleted in its entirety.
11. Attachment II, Special Provisions, Number 4, Expansion Option/Right of
First Offer is hereby deleted in its entirety and replaced with the
following:
"Subject to the rights of existing tenants as stated below, Lessee
shall have a one (1) time Right of First Offer to lease the following
spaces as summarized immediately following:
Net Current Lease Pre-Existing
Suite Rentable Area Expiration Date Tenant Options
----- ------------- --------------- --------------------------
610 12,301 01/31/01 Existing tenant has one
renewal right for three
additional years
1100 5,242 12/31/02 Right of First Refusal To
Expand into Suite 1102
During Current Term.
Tenant has no Renewal
Rights.
1101 9,903 10/31/02 None.
1102 1,285 03/31/00 None.
3
<PAGE>
Lessee shall exercise its Right of First Offer by written notice to
Lessor within ten (10) days following receipt of written notice from
Lessor stating that the Additional Premises is available for lease and
the market rental rate and terms under which the space is available.
Lessor may issue its written notice up to nine (9) months in advance
of the date said space is due to come available.
In the event that Lessee exercises the right granted herein, Lessor
and Lessee shall enter into an amendment to the Lease to incorporate
the Additional Premises and to make necessary adjustments to the
Annual Basic Rent and similarly affected provisions of the Lease. In
the event Lessee declines to exercise its right as above provided for,
or fails to deliver notice thereof within the time period stipulated
above, or fails to execute the requisite amendment to this Lease, this
right of first offer shall lapse and be of no further force and
effect.
The foregoing right of first offer shall not be severed from the Lease
or separately sold, assigned, or transferred and shall be subject to
the following additional conditions, namely: (a) that, at the time
that Lessee exercises this right of first offer for any additional
space, Lessee shall not be in default of any term, covenant, or
obligation of this Lease; (b) that, at the time Lessee exercises this
right of first offer, Lessee shall be in occupancy and possession of
the Premises; and (c) the pre-existing rights of any other tenant to
the Additional Premises have not been exercised."
12. Section 9(a.9.) "Base Year" is amended such that, upon the
Commencement Dates of the spaces identified in paragraph #3 above, the
Base Year shall be converted from calendar year 1996 to a new base
year of 2000. Therefore, Section 9 (a.9.) shall read as follows:
" 'Base Year' shall mean calendar year 2000 upon the Commencement
Dates as stated in paragraph #3 above."
13. Section 6, Security Deposit is hereby amended by adding the following:
"Upon execution of this Amendment II, Lessee shall deposit with Lessor
either (a) a cash amount required to bring its total security deposit
to a sum of $140,996.67 or (b), a Letter of Credit, in a form as
mutually agreed, in the amount of Two Hundred and Fifty Thousand
Dollars ($250,000.00). Said funds shall be considered as an
additional Security Deposit toward the performance of Lessee's
obligations under the Lease Agreement and as further amended under
this agreement, Lease Amendment II."
Except as herein amended, said Lease shall remain in full force and effect
in accordance with all of its terms and provisions.
IN WITNESS HEREOF, the parties have hereinto set their hands and seals this
11th day of February, 2000.
LESSOR: LESSEE:
WESTLAKE CENTER ASSOCIATES PRIMUS KNOWLEDGE SOLUTIONS,
LIMITED PARTNERSHIP INC.
By: /s/ J. Patrick Done By: /s/ Elizabeth J. Huebner
Its: VP/Grp Dir. Its: EVP-CFO
4
<PAGE>
ACKNOWLEDGMENT OF LESSOR
STATE OF Nevada )
) ss.
COUNTY OF Clark )
On this 11th day of February, 2000, before me, the undersigned, a Notary
Public in and for the State of Nevada, duly commissioned and sworn, personally
appeared J. Patrick Done, to me known to be the VP/Group Director, that executed
the within and foregoing instrument, and acknowledged said instrument to be the
free and voluntary act and deed of said partnership, for the uses and purposes
therein mentioned and on oath stated that he/she was authorized to execute said
instrument.
WITNESS my hand and official seal hereto affixed the day and year in this
certificate above written.
/s/ Gail M. Denney McGowan
[Notary Seal Notary Public in and for the
affixed here] State of Nevada residing at
Las Vegas
My commission expires 11/12/2001
Print Name Gail M. Denney McGowan
ACKNOWLEDGMENT OF LESSEE
(Corporate)
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 9th day of February, 2000, before me personally appeared Elizabeth
J. Huebner to me known to be the Exec. VP & CFO of the corporation that executed
the within and foregoing lease, and acknowledged the said instrument to be the
free and voluntary act and deed of said corporation, for the uses and purposes
therein mentioned, and on oath stated that they were authorized to execute said
instrument and that the seal affixed is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
/s/ Mary Robertson
Notary Public in and for the State of
[Notary Seal Washington residing at Bothell
affixed here] My commission expires 12/25/2000
Print Name Mary Robertson
5
<PAGE>
EXHIBIT A-2
TENANT IMPROVEMENTS FOR EXPANSION
AND
EXISTING SPACE
Effective upon the execution of this Lease Amendment II by Lessor and
Lessee, Lessor shall make available to Lessee, under terms as stipulated
below, a Tenant Improvement Allowance for physical improvements to the
entire existing and expanded Premises of up to, but not to exceed three
hundred thirty thousand nine hundred dollars ($330,900).
Said Tenant Improvement Allowance is to be used by December 31, 2001 at
which time all remaining sums, if any, not used by Lessee shall revert back
to Lessor. All sums for work done in the Premises over the Tenant
Improvement Allowances as stated above shall be the sole responsibility of
Lessee.
Tenant Improvements shall mean only physical improvements made to the
Premises and shall exclude trade fixtures, furniture, movable furniture
partitions, storage shelving, installing telephones, telephone and cables,
computer/data cable, fine finish items such as wall coverings, etc., and
similar items.
Lessee shall use Lessor or other Lessor approved contractor for its tenant
improvement work. Lessee understands it will be required to use Lessor's
sub-contractors for any, and all, HVAC, Mechanical and electrical work to
be completed in the Premises.
In the event that Lessee contracts with an approved third party contractor
for Tenant Improvements, Lessee may submit a request for reimbursement of
said expenses based on actual invoices from Lessee's contractors and or
vendors along with lien releases for the work performed in the Premises.
Lessor shall reimburse Lessee within thirty (30) days after receipt of the
reimbursement request, but not prior to the commencement of the renewal and
expansion of the Premises or the date that the Tenant Improvement Allowance
has been made available as stated above. In the event that Lessee employs
a third party contractor to provide construction services for tenant
improvements, Lessee shall pay to Lessor a fee equal to ten percent (10%)
of the total tenant improvement allowance to compensate Lessor for costs
associated with the coordination, review and monitoring of Lessee's
contractor during the construction period.
All improvements made to the Premises are subject to Section 11,
Alterations by Lessee, of the Lease Agreement and must be approved in
writing by Lessor prior to the commencement of any improvements.
6
<PAGE>
EXHIBIT C-2
THE PREMISES - EXISTING AND EXPANSION
Page 1 of 3
[Primus Suite 1000
16,430 NRA
Expansion Period: 01-Sep-00 - 31-Oct-05
DIAGRAM HERE]
WESTLAKE CENTER OFFICE TOWER
TENTH FLOOR
KOEHLER McFADYEN & Co.
206-682-2680
STEVE KOEHLER
7
<PAGE>
EXHIBIT C-2
THE PREMISES - EXISTING AND EXPANSION
Page 2 of 3
[Primus Suite 1801
11,686 NRA
Existing Lease Expires: 31-Oct-00
Renewal Period: 01-Nov-00 - 31-Oct-05
Primus Suite 1800
3,499 NRA
Expansion Period: 01-Nov-00 - 31-Oct-05
Primus Suite 1815
1,475 NRA
Expansion Period: 01-Jun-00 - 31-Oct-05
DIAGRAM HERE]
WESTLAKE CENTER OFFICE TOWER
EIGHTEENTH FLOOR
KOEHLER McFADYEN & Co.
206-682-2680
STEVE KOEHLER
8
<PAGE>
EXHIBIT C-2
THE PREMISES - EXISTING AND EXPANSION
Page 3 of 3
[Primus Suite 1900
16,660 NRA
EXISTING LEASE EXPIRES: 31-OCT-00
Renewal Period: 01-Nov-00 - 31-Oct-05
DIAGRAM HERE]
WESTLAKE CENTER OFFICE TOWER
NINETEENTH FLOOR
KOEHLER McFADYEN & Co.
206-682-2680
STEVE KOEHLER
9
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-2000
<PERIOD-END> MAR-31-2000
<CASH> 14,737
<SECURITIES> 31,477
<RECEIVABLES> 9,872
<ALLOWANCES> (784)
<INVENTORY> 0
<CURRENT-ASSETS> 58,341
<PP&E> 7,048
<DEPRECIATION> (3,791)
<TOTAL-ASSETS> 61,971
<CURRENT-LIABILITIES> 18,119
<BONDS> 0
0
0
<COMMON> 441
<OTHER-SE> 43,411
<TOTAL-LIABILITY-AND-EQUITY> 61,971
<SALES> 10,458
<TOTAL-REVENUES> 10,458
<CGS> 2,931
<TOTAL-COSTS> 13,642
<OTHER-EXPENSES> (710)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 55
<INCOME-PRETAX> (5,460)
<INCOME-TAX> 32
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (5,492)
<EPS-BASIC> (.32)
<EPS-DILUTED> (.32)
</TABLE>
