<PAGE>
As filed with the Securities and Exchange Commission on June 8, 1999
Registration No. 333-78195
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
----------------
Amendment No. 1
to
FORM S-1
REGISTRATION STATEMENT
Under the Securities Act of 1933
----------------
TIBCO SOFTWARE INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 7372 77-0449727
(State or other jurisdiction of (Primary Standard Industrial (I. R. S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
----------------
TIBCO Software Inc.
3165 Porter Drive
Palo Alto, CA 94304
(650) 846-5000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
----------------
VIVEK RANADIVE
President and Chief Executive Officer
TIBCO Software Inc.
3165 Porter Drive
Palo Alto, CA 94304
(650) 846-5000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------
Copies to:
<TABLE>
<S> <C> <C>
LARRY W. SONSINI, Esq. ALISON S. RESSLER, Esq. WILLIAM H. HINMAN, Jr., Esq.
BRIAN C. ERB, Esq. Sullivan & Cromwell Shearman & Sterling
Wilson Sonsini Goodrich & Rosati 1888 Century Park East 1550 El Camino Real
Professional Corporation Los Angeles, CA 90067 Menlo Park, CA 94025
650 Page Mill Road (310) 712-6600 (650) 330-2200
Palo Alto, CA 94304
(650) 493-9300
</TABLE>
----------------
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration Statement.
----------------
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [_]
----------------
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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- --------------------------------------------------------------------------------
<PAGE>
Explanatory Note
This Amendment is for the sole purpose of filing additional exhibits.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by the Registrant in connection
with the sale of common stock being registered. All amounts are estimates
except the SEC registration fee, the NASD filing fee and the Nasdaq National
Market listing fee.
<TABLE>
<CAPTION>
Amount To
Be Paid
------------
<S> <C>
SEC registration fee........................................... $ 16,680
NASD filing fee Nasdaq National Market listing fee............. 7,500
Printing and engraving expenses................................ *
Legal fees and expenses........................................ *
Accounting fees and expenses................................... *
Blue Sky qualification fees and expenses....................... *
Transfer agent and registrar fees.............................. *
Miscellaneous fees............................................. *
------------
Total........................................................ $ *
============
</TABLE>
- --------
* To be supplied by amendment
Item 14. Indemnification of Directors and Officers
Article of the Registrant's Certificate of Incorporation (Exhibit 3.1
hereto) and Article of the Registrant's Bylaws (Exhibit 3.2 hereto) provide
for mandatory indemnification of its directors and officers, and permissible
indemnification of employees and other agents, to the maximum extent permitted
by the Delaware General Corporation Law. In addition, the Registrant has
entered into Indemnification Agreements (Exhibit 10.1 hereto) with its officers
and directors. Reference is also made to Section of the Underwriting
Agreement contained in Exhibit 1.1 hereto, which provides for the
indemnification of officers and directors of the Registrant against certain
liabilities.
Item 15. Recent Sales of Unregistered Securities
From the Registrant's inception through February 28, 1999, the Registrant has
had issued and sold the following securities:
(a) On December 31, 1996, we issued and sold 38,000,000 shares of our
common stock and 40,000,000 shares of our Series A preferred stock to
Reuters Nederland B.V. in connection with the establishment by Reuters
of TIBCO Software Inc. as a separate entity from TIBCO Inc. The
consideration for the issuance of the shares consisted of $10,000,000
plus the book value of the assets transferred to us less the book value
of the assumed liabilities.
(b) On May 9, 1997, we issued and sold 8,730,000 shares of our Series B
preferred stock to Cisco Systems, Inc. for a purchase price of
approximately $15,714,000.
(c) On December 31, 1997, we issued and sold 5,722,632 shares of Series C
preferred stock to entities affiliated with Mayfield Fund LLP for a
purchase price of approximately $11,045,000.
(d) As of March 31, 1999, an aggregate of 8,032,282 shares of common stock
had been issued upon exercise of options under our Stock Option Plan.
II-1
<PAGE>
The issuances of the securities described in (a), (b) and (c) above were
deemed to be exempt from registration under the Securities Act in reliance on
Section 4(2) of such Act as transactions by an issuer not involving any public
offering. The issuances of the securities described in (d) above were deemed to
be exempt from registration under the Securities Act in reliance on Rule 701
under the Securities Act as transactions by an issuer in compensatory
circumstances. All of the securities were acquired by the recipients for
investment and with no view toward the resale or distribution thereof. In each
instance, the recipients were sophisticated investors or employees of ours, the
offer and sales were made without any public solicitation and the stock
certificates bear restrictive legends. No underwriter was involved in the
transactions and no commissions were paid. All recipients had adequate access,
through their relationships with the registrant, to information about the
registrant.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
1.1* Form of Underwriting Agreement.
3.1* Certificate of Incorporation of Registrant.
3.2* Bylaws of Registrant.
4.1* Form of Registrant's Common Stock certificate.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation,
regarding legality of the securities being issued.
10.1* Form of Indemnification Agreement.
10.2 First Amended and Restated License, Maintenance and Distribution
Agreement dated May 28, 1999, among Reuters Limited, TIBCO Finance
Technology, Inc. and Registrant.
10.3* Form of Third Amended and Restated Stockholders Agreement, among
Reuters Nederland B.V., Reuters Limited, Cisco Systems, Inc., Mayfield
IX, Mayfield Associates Fund III, Vivek Ranadive and Registrant.
10.4 1996 Stock Option Plan.
10.5 1998 Director Option Plan.
10.6* Form of Assignment and Assumption of Lease Agreement, between TIBCO
Finance Technology, Inc. and Registrant.
10.7* Form of Employment Agreement between Registrant and Vivek Y. Ranadive.
10.8* Form of Employment Agreement between Registrant and Robert P.
Stefanski.
10.9* Form of Employment Agreement between Registrant and Paul G. Hansen.
10.10* Form of Employment Agreement between Registrant and Richard M. Tavan.
10.11* Form of Master Services Agreement among Registrant, TIBCO Finance
Technology, Inc. and Reuters.
10.12 Software License and Development Agreement dated May 11, 1999 between
Cedel Global Services, societe anonyme and Registrant.
21.1 List of subsidiaries.
23.1* Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation
(included in Exhibit 5.1).
23.2** Consent of PricewaterhouseCoopers LLP, Independent Accountants.
24.1** Power of Attorney.
</TABLE>
- --------
* To be filed by amendment
** Previously filed
(b) Financial Statement Schedules
Included in Notes to Financial Statements.
II-2
<PAGE>
Item 17. Undertakings
The undersigned Registrant hereby undertakes to provide to the underwriters
at the closing specified in the underwriting agreement, certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant, the Registrant has had been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act, and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered
hereunder, the Registrant will, unless in the opinion of its counsel the matter
has had been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has had duly caused this Amended Registration Statement on Form S-1 to be
signed on its behalf by the undersigned, thereunto duly authorized, in Palo
Alto, California on this 8th day of June, 1999.
TIBCO SOFTWARE INC.
/s/ Paul G. Hansen
By: _________________________________
Paul G. Hansen
Executive Vice President, Finance
and Chief Financial Officer
(Principal Financial Officer)
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* President, Chief Executive June 8, 1999
____________________________________ Officer and Chairman of the
Vivek Y. Ranadive Board (Principal Executive
Officer)
/s/ Paul G. Hansen Executive Vice President, June 8, 1999
____________________________________ Finance and Chief Financial
Paul G. Hansen Officer (Principal
Financial Officer)
* Corporate Controller and June 8, 1999
____________________________________ Chief Accounting Officer
Ginger M. Kelly (Principal Accounting
Officer)
* Director June 8, 1999
____________________________________
Yogen K. Dalal
* Director June 8, 1999
____________________________________
Edward R. Kozel
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Director June 8, 1999
____________________________________
Donald J. Listwin
* Director June 8, 1999
____________________________________
Larry W. Sonsini
* Director June 8, 1999
____________________________________
David G. Ure
* Director June 8, 1999
____________________________________
Philip Wood
</TABLE>
/s/ Paul G. Hansen
*By: _____________________
Paul G. Hansen
Attorney-in-fact
II-5
<PAGE>
EXHIBITS INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
1.1* Form of Underwriting Agreement.
3.1* Certificate of Incorporation of Registrant.
3.2* Bylaws of Registrant.
4.1* Form of Registrant's Common Stock certificate.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation,
regarding legality of the securities being issued.
10.1* Form of Indemnification Agreement.
10.2 First Amended and Restated License, Maintenance and Distribution
Agreement dated May 28, 1999, among Reuters Limited, TIBCO Finance
Technology, Inc. and Registrant.
10.3* Form of Third Amended and Restated Stockholders Agreement, among
Reuters Nederland B.V., Reuters Limited, Cisco Systems, Inc., Mayfield
IX, Mayfield Associates Fund III, Vivek Ranadive and Registrant.
10.4 1996 Stock Option Plan.
10.5 1998 Director Option Plan.
10.6* Form of Assignment and Assumption of Lease Agreement, between TIBCO
Finance Technology, Inc. and Registrant.
10.7* Form of Employment Agreement between Registrant and Vivek Y. Ranadive.
10.8* Form of Employment Agreement between Registrant and Robert P.
Stefanski.
10.9* Form of Employment Agreement between Registrant and Paul G. Hansen.
10.10* Form of Employment Agreement between Registrant and Richard M. Tavan.
10.11* Form of Master Services Agreement among Registrant, TIBCO Finance
Technology, Inc. and Reuters.
10.12 Software License and Development Agreement dated May 11, 1999 between
Cedel Global Services, societe anonyme and Registrant.
21.1 List of subsidiaries.
23.1* Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation
(included in Exhibit 5.1).
23.2** Consent of PricewaterhouseCoopers LLP, Independent Accountants.
24.1** Power of Attorney.
</TABLE>
- --------
* To be filed by amendment
** Previously filed
<PAGE>
EXHIBIT 10.2
FIRST AMENDED AND RESTATED
LICENSE, MAINTENANCE AND DISTRIBUTION AGREEMENT
THIS FIRST AMENDED AND RESTATED LICENSE, MAINTENANCE AND DISTRIBUTION
AGREEMENT is entered as of this 28th day of May, 1999 ("Effective Date"), by and
between Reuters Limited, a company organized under the laws of England and
Wales, with offices at 85 Fleet Street, London EC4P 4AJ, United Kingdom
("Reuters") and TIBCO Finance Technology, Inc., a Delaware corporation, with
offices at 3375 Hillview Avenue, Palo Alto, California 94304 ("TFT"), on the one
hand, and TIBCO Software, Inc., a Delaware corporation, with offices at 3165
Porter Drive, Palo Alto, CA 94304 ("TSI"), on the other.
WITNESSETH:
WHEREAS, Reuters owns all right, title and interest in and to certain
software and related technology for the creation of infrastructure middleware
and devices for linking information, applications, and other software across
local, wide-area and intra/inter networks in an event-driven (publish and
subscribe) fashion;
WHEREAS, TFT is a subsidiary of Reuters that develops and markets products
and services based on such Reuters technology for various applications in the
financial services market and TSI is a majority-owned indirect subsidiary of
Reuters that was established by Reuters to, among other things, develop products
and services based on such Reuters technology for various applications not
related to financial services;
WHEREAS, Reuters, TFT and TSI entered into the License, Maintenance and
Distribution Agreement dated as of December 31, 1996 (the "Existing License
----------------
Agreement");
- ---------
WHEREAS, Reuters, TFT and TSI desire to amend and restate the Existing
License Agreement on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS
1.1 Construction. All references in this Agreement to "Articles,"
------------
"Sections," and "Schedules" refer to the articles, sections, exhibits and
schedules to this Agreement. As used in this Agreement, neutral pronouns and
any variations thereof shall be deemed to include the feminine and masculine and
all terms used in the singular shall be deemed to include the plural, and vice
versa, as the context may require. The words "hereof", "herein" and "hereunder"
------ ------ ---------
and other words of similar import refer to this Agreement as a whole, including
the exhibits and schedules hereto, as the same may from time to time be amended
or supplemented and not to any
[ * ] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
<PAGE>
subdivision contained in this Agreement. The word "including" when used herein
---------
is not intended to be exclusive and means "including without limitation."
-----------------------------
References in this Agreement to "sell" and "sale" and the like, when used with
respect to software, shall be deemed to refer to grant of a license of such
software and shall in no event imply the transfer of title to such software.
1.2 Capitalized Terms. The following capitalized terms will have the
-----------------
meanings provided below:
(a) "Acquiror's Products" means (i) products owned or Controlled by
-------------------
any Person that acquires in a bona fide transaction all or substantially all of
the business or assets of TSI (whether by merger, acquisition, asset sale or
similar transaction), as of immediately prior to the effectiveness of the
acquisition of such business or assets, and including products owned or
Controlled by such Person that are under development as of such acquisition date
and that are first made commercially available within six (6) months thereafter,
and (ii) products derived from or based upon the products described in (i) above
and that are made commercially available within six (6) months of such
acquisition date.
(b) "Affiliate(s)" of a Party means a Person that, but only for so
------------
long as such Person, directly or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with, such Party,
provided, however, that, for the purposes of this Agreement, (i) Reuters and TSI
and (ii) TFT and TSI, shall not be considered Affiliates of each other. For the
purposes of the foregoing, unless otherwise stated with respect to the use of
the term "Affiliate", "control" means the direct or indirect ownership by the
controlling entity of 40% or more of the voting stock of the controlled entity
or the right of the controlled entity to appoint more than 40% of the board of
directors of the controlled entity. The term "Affiliates" excludes Persons that
are under common ownership by a governmental or national entity.
(c) "Agreement" means this First Amended and Restated License,
---------
Maintenance and Distribution Agreement, including all exhibits and schedules
hereto.
(d) "Agreement of Organization" means that certain agreement dated as
-------------------------
of November 14, 1996 by and among Reuters, TFT, Reuters Nederland, B.V., TSI and
Vivek Ranadive.
(e) "Authorized License" means a license pursuant to which products
------------------
are licensed, or services are provided, by TSI to a Third-party or to an
Affiliate of TSI, or by the Reuters Parties to a Third-party, and which
contains, at a minimum, terms as protective of the Parties as the terms set
forth in Schedule 1.2(e), and which is consistent with such terms and the terms
of this Agreement.
(f) "Broker" means any Person engaged in the business of effecting
------
transactions in Securities for the account of others, including proprietary
trading systems, electronic brokers, and any such Person that is also a Dealer.
(g) "Commodity Product" means a Licensed Product or any other software
-----------------
product sold or licensed by TSI as an off-the-shelf, stand-alone product, sold
or licensed,
2
<PAGE>
pursuant to an industry standard shrink wrap or click wrap license, directly or
through normal software distribution channels, and which is intended by TSI or
an Affiliate of TSI to be used by the end-user without the requirement for
additional customization, or consulting services, excluding any such product
that constitutes a Financial Product.
(h) "Confidential Information" means any information disclosed by one
------------------------
Party to the other, which if in written, graphic, machine-readable or other
tangible form is marked as "Confidential" or "Proprietary", or which, if
disclosed orally or by demonstration, is identified at the time of initial
disclosure as confidential and reduced to writing and marked "Confidential"
within thirty (30) days of such disclosure.
(i) "Control" means, with reference to rights, software products or
-------
other Technology not owned by a referenced Party, the right of such Party to
grant rights and sublicenses with respect thereto to the other Party or Parties
without violating any obligation owing by such Party to a Third-party or an
Affiliate of such other Party; provided that, if a payment of royalties or other
consideration to such Third-party or such Affiliate is required in connection
with the exercise by such other Party or Parties or their Affiliates of such
rights, such software products and other Technology shall be deemed not to be
Controlled by such Party unless such other Party or Parties agrees in writing to
be responsible for all such royalties and consideration payable to such Third-
party or Affiliate.
(j) "Dealer" means any Person engaged in the business of buying and
------
selling Securities for his own account, through a Broker or otherwise.
(k) "Deliverable" means any tangible material, work or thing delivered
-----------
by one Party to the other hereunder, including, without limitation, the physical
media on which any Source Code or Object Code is stored and associated technical
documentation.
(l) "Derivative Works" has the meaning ascribed to it under the United
----------------
States Copyright Law, Title 17 U.S.C. Sec. 101 et seq.
(m) "Disclosing Party" means a Party that discloses Confidential
----------------
Information to the other Party.
(n) "Distribution License" has the meaning set forth in Section
--------------------
6.1(a).
(o) "Effective Date" has the meaning set forth in the preamble.
--------------
(p) "Embedded" means, with reference to a hardware or software product
--------
or component thereof, the incorporation or integration of such hardware or
software product or component thereof with another hardware or software product
or component thereof that contains significant additional functionality or
features, provided such first hardware or software product or component thereof
(including its application programming interfaces) cannot be accessed and used
by an end-user on a stand-alone basis. In the context of a service offering,
"Embedded" means the use of a hardware or software product or component thereof
in a value-added service offering containing significant additional
functionality or features (such as a Reuters information
3
<PAGE>
service or Personal Trader Workstation); provided that the end user of such
service offering is not able to access and use such product or component
(including its application programming interfaces) directly or on a stand-alone
basis. For the avoidance of doubt, "Embedded" use shall not include stand-alone
rental, service bureau or similar stand-alone use of such software product or
component thereof.
(q) "Enhancement" means any improvement, upgrade, enhancement, fix,
-----------
extension to, or add-on module compatible or interoperable with, or Derivative
Work of, any Technology, including any software or hardware.
(r) "Exclusivity Period" has the meaning set forth in Section 6.1(c).
------------------
(s) "Existing License Agreement" has the meaning set forth in the
--------------------------
Recitals.
(t) "ETX Software" means the TIB/Enterprise Transaction Express
------------
transaction-based messaging system that is based on the TIB Software.
(u) "Financial Product" means a software or hardware product
-----------------
specifically designed for use by a Financial Services Company, including such
products that are intended or designed primarily to operate as, or as part of,
financial trading or financial transactions products or systems, financial news,
financial information or financial data products or systems or market data
systems.
(v) "Financial Services Company" means any Person that is engaged in
--------------------------
or operates a financial services business including, without limitation, banks
(including savings, commercial, merchant, and investment banks and credit
unions), Securities Brokers, Dealers, investment managers, investment funds or
partnerships, insurers, reinsurers, clearing organizations, Securities trading
rooms and Securities exchanges. A Person shall be deemed to be engaged in or
operate a financial services business for purposes of the foregoing sentence if
such Person is a member of a group of related or affiliated companies where a
majority portion measured in terms of revenues or capitalization of such group
is attributable to activities constituting or relating to a financial services
business; provided, however, that any such member of such a group of related or
affiliated companies that itself is not engaged in or does not operate a
financial services business shall not be considered a Financial Services Company
if such member agrees in writing not to provide access to any Licensed Products
or Licensed Services to or for the benefit of any other member of such group
that is or is deemed to be a Financial Services Company. A Person that is
engaged in a financial services business that is merely incidental to the
operation of that Person or its Affiliates shall not by reason of such
incidental activity be considered a "Financial Services Company."
(w) "Intellectual Property Rights" means all rights owned or
----------------------------
Controlled by a Party hereto in, to, or arising out of: (i) any U.S. or foreign
patent or any application therefor and any and all reissues, divisions,
continuations, renewals, extensions and continuations-in-part thereof; (ii)
inventions (whether patentable or not in any country), invention disclosures,
improvements, trade secrets, proprietary information, know-how, technology and
technical data; (iii) copyrights, copyright registrations and, applications
therefor in the U.S. or any foreign
4
<PAGE>
country, and all other rights corresponding thereto throughout the world; and
(iv) any other proprietary or intellectual property rights, including any rights
in Technology, including software, arising anywhere in the world, but excluding
any trade names, trademarks, service marks and similar rights.
(x) "Licensed Products" means any software and/or hardware products,
-----------------
based on or incorporating any TIB Technology and Reuters Enhancements, excluding
any Financial Products, if such products are covered by one or more unexpired
and valid patents of the Reuters Parties, incorporate or comprise a work of
authorship (including without limitation any derivative work) that is protected
in whole or in part by any valid copyrights of the Reuters Parties, embody or
utilize any trade secrets of the Reuters Parties that remain protectible under
applicable law or otherwise are protected or covered by valid and subsisting
Intellectual Property Rights of the Reuters Parties. As of the Effective Date,
the Licensed Products include, without limitation, TIB Rendezvous, TIB/Hawk,
TIB/Energy, TIB/ETK and the ETX Software. Following the Effective Date, the
parties will negotiate in good faith appropriate procedures, including dispute
resolution mechanisms, for determining, in a manner binding on the Parties,
which TSI Products, including new TSI Products first released after the
Effective Date, constitute Licensed Products as defined herein.
(y) "Licensed Services" means services, including consulting, design,
-----------------
integration, customization, operation and development services, based on,
related to, or using the TIB Technology and Reuters Enhancements, provided by
TSI to Third-parties that are not a Financial Services Company (it being agreed
and acknowledged that any such services shall continue to constitute Licensed
Services only if such services are based on, relate to or use TIB Technology or
Reuters Enhancements that are covered by one or more unexpired and valid patents
of the Reuters Parties, incorporate or comprise a work of authorship (including
without limitation any derivative work) that is protected in whole or in part by
any valid copyrights of the Reuters Parties, embody or utilize any trade secrets
of the Reuters Parties that remain protectible under applicable law or otherwise
are protected or covered by valid and subsisting Intellectual Property Rights of
the Reuters Parties).
(z) "Maintenance Services" means the maintenance and support services
--------------------
to be provided by TSI to Reuters and TFT in accordance with Section 5.2.
(aa) "Object Code" means machine-executable computer software prepared
-----------
by compiling and linking Source Code or machine independent representations of
computer software intended for subsequent interpretation or just-in-time
compiling.
(bb) "OEM Sales" has the meaning set forth in Section 2.5(b).
---------
(cc) "Original Effective Date" means December 31, 1996, the effective
-----------------------
date of the Existing License Agreement.
(dd) "Party" means either or both of (i) Reuters and TFT; or (ii) TSI.
-----
5
<PAGE>
(ee) "Person" means any legal person or entity, including any
------
individual, corporation, partnership, joint venture, association, joint stock
company, trust, unincorporated association, limited liability corporation,
governmental entity, or other person or entity of similar nature.
(ff) "Quarterly Minimum License Fee Installments" has the meaning set
------------------------------------------
forth in Section 6.3(a).
(gg) "Receiving Party" means a party that receives Confidential
---------------
Information from the other Party.
(hh) "Reserved Field" means the use of TIB Technology or Reuters
--------------
Enhancements in the operation of a Financial Services Company, or the licensing
of the TIB Technology or Reuters Enhancements or any product or service based
thereon, directly or indirectly to (whether or not through the use of an
interposed Person or through or to consultants to or agents of) a Financial
Services Company, or the provision of any consulting, design, integration,
customization, operational, support or development services to any Financial
Services Company.
(ii) "Reuters Enhancements" shall have the meaning set forth in
--------------------
Section 2.3.
(jj) "Reuters Intellectual Property Rights" means all Intellectual
------------------------------------
Property Rights owned or Controlled by Reuters or TFT that cover, protect or are
embodied in any TIB Technology or any Reuters Enhancements or the manufacture or
use of TIB Technology or Reuters Enhancements.
(kk) "Reuters Parties" means Reuters and TFT.
---------------
(ll) "Revenue-Sharing Products" shall have the meaning set forth in
------------------------
Section 6.3(a).
(mm) "Security" means any note, stock, treasury stock, bond,
--------
debenture, certificate of interest or participation in any profit-sharing
agreement or in any oil, gas, or other mineral royalty or lease, any collateral-
trust certificate, preorganization certificate or subscription, transferable
share, investment contract, voting-trust certificate, certificate of deposit,
for a security; any put, call, straddle, option, or privilege on any security;
certificate of deposit, or group or index of securities (including any interest
therein or based on the value thereof), or any, swap, put, call, straddle,
option, or privilege entered into on a securities exchange relating to foreign
currency, or in general, any instrument commonly known as a "security"; or any
certificate of interest or participation in, temporary or interim certificate
for, receipt for, or warrant or right to subscribe to or purchase, any of the
foregoing, all contracts for the sale of any of the foregoing or of any
commodity for future delivery, options thereon, and commodity options (including
but not limited to cash currency options) as those terms are defined in the US
Commodity Exchange Act, that are traded on or subject to the rules of a formally
organized and regulated exchange.
6
<PAGE>
(nn) "Source Code" means computer software and any associated
-----------
documentation in human-readable form, including programmers' comments, and the
following items to the extent that they are confidential: data files and
structures, APIs, header and include files, macros, programming tools not
commercially available, technical specifications, flowcharts and logic diagrams.
(oo) "Special Purpose Joint Venture" means a joint venture or similar
-----------------------------
arrangement between Reuters and TSI for the purposes of undertaking a specific
development or consulting project for one or more Third-parties.
(pp) "Specified Companies" means the following: [ * ] and its
subsidiaries and any other principal competitor of Reuters.
(qq) "Technology" means all technology, including without limitation,
----------
all know-how, show-how, techniques, trade secrets, inventions (whether or not
patented or patentable), algorithms, routines, software (including firmware and
middleware) files, data-bases, processes, devices and hardware.
(rr) "TFT- Reuters License" means that certain Products Distribution
--------------------
Agreement dated as of August 3, 1995 by and between Reuters Limited and
Teknekron Software Systems, Inc.
(ss) "TFT Financial Products" means the TFT products listed on
----------------------
Schedule 1.2(ss) and any other Financial Products that were owned or Controlled
by TFT as of the Original Effective Date.
(tt) "Third-party" means any Person other than (i) a Party or (ii) an
-----------
Affiliate of a Party.
(uu) "Third Party Reseller" has the meaning set forth in Section
--------------------
2.5(a).
(vv) TIB-Derived Technology" means any Technology derived from or
----------------------
based on any TIB Technology or Reuters Enhancements, including any Derivative
Work created from any TIB Technology or Reuters Enhancements.
(ww) "TIB Software" means the infrastructure middleware, in Source
------------
Code and Object Code form, for linking information, applications, or other
software across local, wide area and intra/inter networks in an event-driven
(publish and subscribe) fashion, and its associated administrative components
owned by Reuters as of the Original Effective Date, licensed to TFT pursuant to
the TFT-Reuters License, and licensed to TSI hereunder, but excluding (and the
licenses contemplated hereby exclude): (i) any software applicable exclusively
to the Reserved Field, and also excluding any TFT Financial Products; and (ii)
any software created by TFT exclusively for Reuters pursuant to the Research and
Development Agreement between Teknekron Software Systems Inc. and Reuters, dated
as of August 3, 1995.
7
[ * ] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
<PAGE>
(xx) "TIB Technology" means all Technology, including the TIB
--------------
Software, related to the creation of infrastructure middleware or devices for
linking information, applications, and other software across local, wide-area
and intra/inter networks in an event-driven (publish and subscribe) fashion and
owned or Controlled by a Reuters Party. For the avoidance of doubt, TIB
Technology does not include any Technology independently developed by TSI after
the Original Effective Date.
(yy) "Transferred TIB-Related Marks" means the trademarks, service
-----------------------------
marks and other marks listed on Schedule 1.2(yy) and their derivatives.
(zz) "TSI Intellectual Property Rights" means all Intellectual
--------------------------------
Property Rights owned or Controlled by TSI.
(aaa) "TSI Products" means any software and/or hardware products that
------------
are owned or Controlled by TSI for so long as TSI owns or Controls such
products, but in all events excluding Acquiror's Products (it being agreed and
understood that any TSI software and/or hardware products, and any derivative or
successor products thereto, included in any Acquiror's Products immediately
prior to the time at which the Person in question acquires all or substantially
all of the business or assets of TSI, shall continue to constitute TSI Products
hereunder notwithstanding the foregoing exclusion of Acquiror's Products).
(bbb) "TSI Technology" means any Technology owned or Controlled by
--------------
TSI (including any first developed or acquired after the Effective Date),
including without limitation any Enhancements to the TIB Technology owned or
Controlled by TSI.
(ccc) "TSI Limited Distribution Rights" means those non-exclusive,
-------------------------------
worldwide, distribution rights of TSI to certain TFT products to be designated
in writing from time to time by TFT (but which shall include MarketSheet, value-
added servers such as TIC and GSM, and feed handlers) and distributed by TSI to
non-Financial Services Companies or to Financial Services Companies solely in
connection with TSI-provided TIBCO.net hosting services pursuant to Section
2.12, with (I) TFT providing or having provided second and third-level support
to TSI, (II) TSI paying to TFT a license and maintenance distribution fee of
[ * ]% of all revenue recognized in accordance with the allocation principles of
Section 6.4 and GAAP in respect of such products unless otherwise agreed and
(III) as to be specifically set forth in a standard distribution agreement
between TSI and TFT.
ARTICLE 2.
LICENSE GRANTS
2.1 Reuters- TIB Technology License.
-------------------------------
(a) Subject to the terms and conditions of this Agreement, including
Section 2.4, the Reuters Parties hereby grant to TSI a royalty-free, fully paid,
worldwide, perpetual, non-exclusive, non-assignable, non-sublicensable (except
as provided in
[ * ] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
8
<PAGE>
Sections 2.1(a)(2), 2.1(b) and 2.5 below) and irrevocable right and license
under the Reuters Intellectual Property Rights to:
(1) Make, have made, internally use, copy, modify, and create
Derivative Works from the TIB Software and otherwise internally use and exploit
the TIB Technology for the purposes of developing, creating and maintaining
Licensed Products;
(2) Perform, display, offer for sale, import, sell, sublicense and
distribute Licensed Products; provided that, except as set forth in Section
2.1(c) below, any TIB Software included in, or forming part of, such Licensed
Products is distributed only in Object Code form and only in accordance with an
Authorized License;
(3) Make, have made, internally use, copy, modify and create
Derivative Works from the TIB Software and otherwise internally use and exploit
the TIB Technology, for the purposes of providing Licensed Services in
accordance with an Authorized License;
(4) Make, have made, internally use, copy, modify and create
Derivative Works from the TIB Software and otherwise internally use and exploit
the TIB Technology, for the purpose of performing TSI's obligations as a
participant in a Special Purpose Joint Venture; and
(5) Make, have made, internally, use, copy, modify and create
Derivative Works from the TIB Software and otherwise internally use and exploit
the TIB Technology for the purpose of performing Maintenance Services.
(b) Subject to and without limiting Sections 2.5 and 6.1(a), (b), (c) and
(d), TSI shall have the right to distribute Licensed Products through Third-
party and Affiliate distributors, resellers and original equipment
manufacturers, provided that the terms and conditions of TSI's distribution
arrangements are consistent with and in compliance with the terms and conditions
of this Agreement.
(c) TSI shall not directly or indirectly license, disclose, or permit or
provide access to, TIB Software Source Code to any Third-party or any TSI
Affiliate except in the following circumstances and in accordance with the
following procedures:
(1) If TSI reasonably believes that it is necessary for it to license
such Source Code to a Third-party (other than a Financial Services Company or a
Specified Company) or any TSI Affiliate for the purposes of pursuing a strategic
relationship with such Third-party or TSI Affiliate necessary to increase the
marketability or value of the TIB Technology (for example, an arrangement
whereby the TIB Technology will be incorporated in a widely distributed Third-
party operating system), it shall so inform Reuters and provide Reuters with
such details of the proposed transaction as Reuters shall reasonably request.
Following Reuters' review of such materials, which shall occur promptly, Reuters
shall inform TSI whether Reuters consents to TSI granting the contemplated
Source Code license and any terms and conditions that Reuters reasonably
requires to be added to the Source Code license between TSI and such
9
<PAGE>
Third-party. Reuters may condition its approval of the Source Code license on
the incorporation of the terms reasonably suggested by Reuters.
(2) Reuters shall not unreasonably withhold or delay its approval
of TSI granting a Source Code license in accordance with the foregoing.
(3) Under no circumstances shall TSI license or provide Source
Code to any Third-party absent Reuters' express, prior written approval in
accordance with the foregoing.
(d) Notwithstanding the provisions of Section 2.3(c), following the
first to occur of December 31, 1999, or the consummation of an initial public
offering of the stock of TSI, TSI shall no longer have the obligation to obtain
Reuters' review or approval prior to, or in connection with, the licensing of
TIB Software Source Code to Third-parties pursuant to Section 2.3(c); provided
that any such licensing shall in all events remain subject to the terms and
conditions of this Agreement, including Section 2.4; and any terms and
conditions of an Authorized License which by nature are inconsistent with the
licensing of Source Code shall be subject to appropriate modification to reflect
such licensing of Source Code.
(e) In consideration of the grant of the foregoing license to TSI by
the Reuters Parties, TSI shall grant to Reuters the license under the TSI
Intellectual Property Rights set forth in Section 2.6.
2.2 Reservation of Rights. All rights in or to any Reuters Intellectual
---------------------
Property Rights not expressly granted toTSI hereunder are reserved to the
Reuters Parties.
2.3 Reuters Enhancements to TIB Technology.
--------------------------------------
(a) Either Reuters Party may, in its sole discretion, create or
acquire any Enhancement to the TIB Software ("Reuters Enhancements") following
--------------------
the Effective Date.
(b) In the event that: (i) either Reuters Party develops any Reuters
Enhancements prior to the fifteenth (15th) anniversary of the Original Effective
Date; and (ii) the incorporation of such Reuters Enhancements into Licensed
Products, or the use of such Reuters Enhancements by TSI, would facilitate
compatibility, interoperability or conformance to common standards between TSI
and Reuters or TFT products based on TIB Technology, then, subject to the terms
and conditions hereof, Reuters shall disclose such Reuters Enhancements to TSI
and shall, and hereby does, grant to TSI a royalty-free, fully-paid, worldwide,
non-exclusive, perpetual, non-sublicensable (except when Embedded in Licensed
Products as provided in Section 2.3(b)(2)), and irrevocable right and license
under all Intellectual Property Rights owned by Reuters at any time prior to the
fifteenth (15th) anniversary of the Original Effective Date, in such Reuters
Enhancements, to:
(1) Internally use, copy, modify and create Derivative Works from
such Reuters Enhancements, and otherwise internally use and exploit such Reuters
Enhancements, or any Technology derived from or based on such Enhancements, in
developing,
10
<PAGE>
making, having made, importing, creating, providing, maintaining and enhancing
Licensed Products or Licensed Services; and
(2) Distribute, perform, display, sell or license such Reuters
Enhancements, or any Technology derived from or based on such Enhancements, in
each case only if Embedded in Licensed Products, including as an integral part
of Licensed Products, or as a feature thereto.
(c) Following the fifteenth (15th) anniversary of the Original
Effective Date, the license granted pursuant to Section 2.3(b) shall continue in
perpetuity without payment of any kind to Reuters; provided, however, that such
license shall not apply to any Reuters Enhancements that come into existence
following such anniversary, except as may be agreed by Reuters and TSI. For the
purpose of the foregoing, any patent rights shall be deemed to have come into
existence as of the earliest priority date that may be claimed by the
application resulting in such patent and regardless of the issuance date of such
patent.
(d) The Parties agree that ETX Software constitutes TIB Software
licensed to TSI pursuant to the Existing License Agreement and that all
Enhancements to ETX Software created or developed by TFT after the Original
Effective Date constitute "Reuters Enhancements" hereunder. TSI shall,
accordingly, maintain ETX Software to the same extent as TSI maintains other
Licensed Products pursuant to Section 5.2. TFT shall retain all revenue it has
recognized or in the future may recognize, if any, with respect to the
licensing, sub-licensing, distribution, maintenance or support of ETX Software
(including its upgrades, Enhancements and subsequent versions). TSI shall
retain all revenue it has recognized with respect to the licensing, maintenance
or support of the ETX Software to or for customers who are not Financial
Services Companies. TFT will pay to TSI, the actual cost (fully burdened, but
not at intercompany charge rates) of TSI personnel who have developed, supported
and maintained, or shall in the future develop, support or maintain, the ETX
Software sold or licensed to TFT customers, effective from the date such
personnel became employees of TSI (as of July of 1998), excluding any costs
incurred in connection with the development of TSI's RVTX product. The actual
cost of such TSI personnel who have developed, supported and maintained the ETX
Software prior to the Effective Date shall be paid by TFT within thirty (30)
days after receipt of an invoice therefor from TSI, together with appropriate
substantiation. The actual cost of TSI personnel who in the future develop,
support or maintain the ETX Software shall be paid on a quarterly basis upon
receipt of an invoice from TSI therefor, together with appropriate
substantiation. TFT shall have the audit rights provided in Section 12.3 in
connection with amounts billed by TSI under this Section 2.3(d).
2.4 Limitations on Right of TSI to Exploit TIB Technology In Reserved
-----------------------------------------------------------------
Field.
-----
(a) TSI is not authorized to, and TSI agrees that it shall not, except
as expressly permitted herein, make available, license, sell, distribute or
otherwise commercially exploit any existing or future Licensed Products directly
to a Financial Services Company or a Specified Company by any means whatsoever,
whether now existing or hereafter devised, subject only to the right of TSI to
license or distribute Commodity Products to Financial Service
11
<PAGE>
Companies when and as provided in Section 6.3(a) and TSI's rights granted in
Section 2.12. Subject to TSI's rights under Section 6.3(a) and Section 2.12, TSI
(i) shall use all commercially reasonable efforts to prevent any licensing or
distribution by it or any of its Affiliates of Licensed Products over the
Internet directly to Financial Services Companies and (ii) shall neither
maintain any sales force to sell any Licensed Products nor provide any Licensed
Services directly to Financial Services Companies and shall neither sell and
distribute any Licensed Products nor provide any Licensed Services indirectly to
Financial Services Companies except through a Third Party Reseller to the extent
expressly permitted by Section 2.5. More specifically, subject to TSI's rights
under Sections 2.5, 2.12 and 6.3(a), the license to TIB Technology and Reuters
Enhancements granted by the Reuters Parties to TSI in Sections 2.1 and 2.3 shall
exclude any right under the Reuters Intellectual Property Rights to, and subject
to Sections 2.5, 2.12 and 6.3(a) under no circumstances shall TSI or any
Affiliate of TSI:
(1) use, copy, display, create Derivative Works from, or otherwise
exploit any TIB Technology, any TIB-Derived Technology or any Reuters
Enhancements for the purposes of developing, creating, enhancing, maintaining or
supplying any products (including without limitation any Financial Product) or
providing any services directly for or to any Financial Services Company (other
than Reuters or a Reuters Affiliate) or Specified Company;
(2) provide, disclose or license any TIB Technology, any TIB-Derived
Technology or any Reuters Enhancements directly to any Financial Services
Company or Specified Company;
(3) provide any design, consulting, integration, embedding, [A
operational support, partnering, co-sourcing, data processing, network
management, service provisioning, or other similar services that utilize in any
way any TIB Technology, or any Reuters Enhancement, or are provided with any TIB
Technology, or any Reuters Enhancements, in any case directly to any Financial
Services Company or Specified Company;
(4) make available, license, sell or otherwise distribute any Licensed
Product, whether stand-alone or on a packaged basis with a Financial Product,
directly to any Financial Services Company or Specified Company; and
(5) use, copy, display, develop, license, or support any Financial
Products that incorporate or are based on any TIB Technology, any TIB-Derived
Technology or any Reuters Enhancements, including any Licensed Products that
include or are packaged with a Financial Product, or any Licensed Product that
includes functionality or features that are specifically designed for use by a
Financial Services Company or a Third-party for the purpose of developing
products or services for Financial Services Companies.
(b) The limitations set forth in Section 2.4(a)(5) shall not prohibit TSI
from developing, supporting, maintaining, enhancing, providing services for,
selling, licensing or otherwise distributing Licensed Products to or for a
Third-party that is not a Financial Services Company or a Specified Company and
(1) that have applicability to Financial Services Companies so long as such
products are generally applicable to other fields and do not include
functionality or features specifically designed for use by a Financial Services
Company and are
12
<PAGE>
not specifically designed for use by a Third-party for the purpose of developing
products or services for Financial Services Companies or (2) that include
functionality or features requested by either of the Reuters Parties.
(c) TSI shall disclose to Reuters the identity of each Person with
whom TSI enters into an agreement or other arrangement to provide Licensed
Products or Licensed Services, or to otherwise disclose Confidential Information
pertaining to any TIB Technology or Reuters Enhancements. Such information
shall be reported to Reuters at least semi-annually. Reuters' receipt of any
report shall be without prejudice to Reuters' rights and remedies under this
Agreement and shall not be construed in any way as the acceptance by Reuters of
the compliance by TSI with any other of the terms of this Agreement. Such
reports shall be provided directly to Reuters and not to TFT and shall be used
by Reuters solely with respect to Reuters' review of TSI's compliance with this
Agreement and the enforcement of this Agreement.
2.5 Extent of Permitted Third-Party Distribution in Reserved Field.
--------------------------------------------------------------
(a) Notwithstanding anything to the contrary stated in this
Agreement, the Reuters Parties hereby grant to TSI a royalty-free (but subject
to the revenue sharing obligations expressly set forth in Section 2.5(b)), fully
paid up, worldwide, perpetual, non-exclusive, non-assignable right and license,
under the Reuters Intellectual Property Rights, to grant any and all systems
integrators, original equipment manufacturers, resellers, distributors or other
licensees other than any Financial Services Company or Specified Company (each a
"Third Party Reseller") of Licensed Products (whether in Object Code or Source
--------------------
Code form), without payment by the Third Party Reseller of any license fees or
other consideration to the Reuters Parties (but subject to the revenue sharing
obligations expressly set forth in Section 2.5(b)), non-exclusive, worldwide,
perpetual, rights and licenses to exercise any and all of the rights under the
license to TIB Technology granted by Reuters to TSI in Section 2.1 and to
Reuters Enhancements granted by Reuters to TSI in Section 2.3, whether inside or
outside the Reserved Field and in each case without subjecting the Third Party
Reseller to the limitations set forth in Section 2.4, but without relieving TSI
of its obligations to comply with the provisions of Section 2.4 and in all cases
subject to the following provisions of this Section 2.5.
(b) Notwithstanding anything to the contrary stated in this Agreement,
nothing herein shall require that the Third Party Reseller itself be subject to
contractual prohibitions on use or distribution of Licensed Products or using,
preparing or distributing any Derivative Work based on any Licensed Products in
the Reserved Field; provided that any revenue received from a Third Party
Reseller and recognized by TSI in accordance with GAAP, (less any discounts not
already deducted from revenues and less any withholding taxes included in such
revenues), that is attributable to sales or distribution of TSI Products that
are Licensed Products by such Third Party Reseller, or the provision of related
maintenance or support by such Third Party Reseller, in each case to Financial
Services Companies shall be [ * ] between Reuters and TSI on a [ * ] basis (with
TSI being obligated to pay Reuters its share of any such revenue within thirty
(30) days after the end of each fiscal quarter after receipt by TSI of any
related payments by such Third Party Reseller).
[ * ] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
13
<PAGE>
(1) The provisions of Section 6.4 hereof are applicable with respect
to allocating revenues attributable to sales of such TSI Products that are
Licensed Products (or the provision of related maintenance or support) relative
to revenues attributable to any other TSI products, services or any other item,
sold or provided in connection therewith.
(2) No such sharing of license and maintenance revenue shall be
applicable in respect of sales ("OEM Sales") by a Third Party Reseller (or its
---------
distributor) of any hardware or software products of such Third Party Reseller
into or with which any Licensed Product has been Embedded, integrated or
packaged and to which the Third Party Reseller has contributed substantial
value-added functionality and features in addition to such Licensed Product
(e.g., Cisco bundling TSI Products on a CD with its Active Directory network
applications), but excluding any sales by systems integrators and other
resellers of integrated or packaged products that include Licensed Products to a
customer in connection with a specific transaction rather than as a part of an
integrated or packaged product that is released for commercial sale to their
customers generally ("OEM Reseller").
------------
(3) Nothing in Sections 2.4(b) and 2.5 shall in any way be deemed to
permit TSI (or any TSI Affiliate), directly or indirectly, to assist in any way
in (a) the provision of Licensed Services by any such Third Party Reseller for
any Financial Services Company or Specified Companies, (b) the development by
any such Third Party Reseller of any Derivative Work of TIB Technology or
Reuters Enhancements that constitutes a Financial Product or is specifically
designed for use by a third party that has a purpose of developing a Financial
Product or (c) the provision of a service specifically designed for Financial
Services Companies or Specified Companies, including without limitation by
enhancing or modifying any Licensed Products for the purpose of creating or
facilitating the creation of any such Derivative Work. Furthermore, TSI shall
not, directly or indirectly, assist in any way in the development by any Third
Party Reseller of any products with finance functionality or features that
incorporate, embed or are derived from any TIB Technology, Reuters Enhancements
or TIB-Derived Technology. Notwithstanding the foregoing, nothing in Section
2.5 shall restrict TSI from (1) making available general purpose interfaces or
other integration tools not specifically designed for use with a Financial
Product or specifically designed for use by a Third-party for developing
products or services for Financial Services Companies or Specified Companies
when such interfaces or tools are provided for the purpose of (i) integrating
the Licensed Products with other products or components, including Financial
Products, and/or (ii) developing general purpose interfaces between the Licensed
Products and other products or components, including Financial Products or (2)
providing standard training, maintenance and support for Licensed Products to
Third Party Resellers in accordance with TSI's standard training, maintenance
and support practices.
(c) During such time as any Third Party Reseller (excluding OEM Resellers)
is a party to a reseller or other distribution agreement with TSI and
distributes products to Financial Services Companies in greater than de minimis
amounts, TSI shall exert all reasonable commercial efforts to assist Reuters in
making such Third Party Reseller a reseller or distributor also of Reuters, with
Reuters being the provider of all TSI Products to or for Financial Services
14
<PAGE>
Companies. TSI will notify Reuters promptly upon commencement of material
negotiations with respect to any such new reseller or other distribution
agreement.
(d) TSI shall include in each reseller or other distribution agreement
with a Third Party Reseller entered into after the Effective Date (i) a
requirement that the Third Party Reseller provide TSI with sufficient
information such that TSI can identify accurately the extent to which any
license fees or other payments made by such Third Party Reseller to TSI are
attributable to sales to Financial Services Companies (other than OEM Sales) and
(ii) adequate mechanisms for verifying the accuracy of the information reported
by such Third Party Reseller with respect to sales by Financial Services
Companies, provided that if the manner of resale utilized by such Third Party
Reseller makes infeasible the identification of the extent to which any license
fees or other payments made by such Third Party Reseller to TSI are attributable
to sales to Financial Services Companies (or TSI after diligent efforts is
otherwise unable to obtain the information), no such covenant shall be required
and the amount of sales by such Third Party Reseller that is deemed to be
attributable to sales to Financial Services Companies will be fixed at a good
faith mutually agreeable specified percentage that is designed to approximate
the actual percentage of such sales by such Third Party Reseller that are
attributable to sales to Financial Services Companies, which percentage shall be
subject to a negotiated adjustment at the request of either Party no more
frequently than annually if such Party believes that such percentage is not
fairly reflective of the actual percentage of such sales by such Third Party
Reseller that are attributable to sales to Financial Services Companies.
(e) The Reuters Parties shall have the right to engage its external
auditor to audit the books and records of TSI pursuant to Section 12.3 for
purposes of verifying the calculation of the amounts payable by TSI to Reuters
Parties in accordance with the foregoing provisions of this Section 2.5, subject
to reasonable confidentiality provisions and further provided that such right
shall be exercised no more frequently than once each calendar year. If any
adjustments are made to the amount of revenues related to Financial Services
Companies that were realized in a given quarter after the payment of the share
thereof that is due to the Reuters Parties in respect of such quarter,
corresponding adjustments will be made to the amount payable to Reuters Parties
in respect of such quarter.
(f) TSI hereby represents and warrants that as of the Effective Date
(i) TSI is not a party to any TSI reseller or other distribution agreement with
a Third Party Reseller (including OEM Resellers) except as disclosed on Schedule
2.5(f) hereto (each such disclosed agreement being referred to as a "Prior TSI
---------
Reseller Agreement"); and (ii) true and correct copies of each Prior TSI
- ------------------
Reseller Agreement have been provided to the Reuters Parties, except to the
extent prohibited by a confidentiality provision therein. If a copy of any
Prior TSI Reseller Agreement or any portion thereof has not been provided to
Reuters by reason of any such confidentiality provision, TSI hereby agrees and
covenants with the Reuters Parties to use reasonable efforts to obtain a waiver
thereof within a reasonable time after the Effective Date. As and when TSI
enters into any reseller or other distribution agreement with a Third Party
Reseller after the Effective Date, TSI shall give the Reuters Parties notice
thereof and shall provide therewith a true and complete copy of such agreement.
15
<PAGE>
2.6 TSI License.
-----------
(a) TSI hereby grants to Reuters a royalty-free, fully-paid,
worldwide, non-exclusive, perpetual, sublicensable, and irrevocable right and
license under all TSI Intellectual Property Rights at any time prior to the
fifteenth (15th) anniversary of the Original Effective Date, to:
(1) Internally use, make, have made, copy, modify and create
Derivative Works from any TSI Technology and otherwise internally use and
exploit the TSI Technology in developing, making, having made, importing,
creating, providing, maintaining and enhancing any Reuters' (or any of its
Affiliates') products or services; and
(2) Sub-license, distribute, perform, display, sell or license
any TSI Technology, or any Technology derived from or based on such Technology,
Embedded in Reuters' (or any of its Affiliates') products or services, including
as an integral part thereof, or as a feature thereto.
(b) Following the fifteenth (15th) anniversary of the Original
Effective Date, the license granted pursuant to Section 2.6(a) shall continue in
perpetuity without payment of any kind to TSI; provided, however, that such
license shall not apply to any TSI Technology that comes into existence
following such anniversary, except as may be agreed by Reuters and TSI. For the
purpose of the foregoing, any patent rights shall be deemed to have come into
existence as of the earliest priority date that may be claimed by the
application resulting in such patent and regardless of the issuance date of such
patent.
(c) TSI agrees that it will not avoid the acquisition or creation of
Intellectual Property Rights, or dispose of any of its Intellectual Property
Rights for the purposes of avoiding the grant to Reuters of the licenses set
forth in this Section 2.6.
(d) Notwithstanding the foregoing provisions of this Section 2.6, TSI
Technology and TSI Intellectual Property Rights shall exclude all (i) Technology
and/or intellectual property rights owned or Controlled by any Person that
acquires all or substantially all of the business or assets of TSI (whether by
merger, acquisition, asset sale or other similar transaction), immediately prior
to the date of the acquisition of such business or assets, and (ii) Technology
and/or intellectual property rights derived from or based upon the Technology
and/or intellectual property rights described in (i) above (it being agreed and
understood that any TSI software and/or hardware products, and any products
derived from such TSI software and/or hardware products, and the TSI
Intellectual Property Rights therein, that are incorporated or utilized in such
products immediately prior to the time at which such Person so acquires all or
substantially all of the business or assets of TSI shall in all events continue
to constitute TSI Technology and TSI Intellectual Property Rights hereunder).
(e) Reuters may sublicense to all of its Affiliates any and all of
the rights licensed by TSI to Reuters pursuant to the foregoing provisions of
this Section 2.6; provided that, unless TSI otherwise agrees in writing, TFT and
its successors and assigns (other than a successor or assign that is Reuters or
an Affiliate of Reuters) shall in no event be authorized to
16
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exercise any such rights for the purpose of (i) conducting, supporting,
participating or engaging in any business involving the provision of services
that are not related to a Financial Product to a Person that is not a Financial
Services Company, including providing design, consulting, integration,
embedding, operational support, partnering, co-sourcing, data processing,
network management, service provisioning, or similar services; or (ii) engaging
in the business of creating, licensing or selling a product that is not a
Financial Product to a Person that is not a Financial Services Company. This
Section 2.6(e) shall apply to TFT and its successors and assigns only (other
than a successor or assign that is Reuters or an Affiliate of Reuters), and,
subject to the foregoing, shall not in any way apply to or bind Reuters or any
other Affiliate of Reuters; provided, however, that this Section 2.6(e) shall in
no way limit TFT's ability to use third-party resellers as contemplated by
Section 6.1(m).
2.7 API Publication. Solely for standards-setting purposes or to promote
---------------
the widespread adoption of industry standards associated with the TIB
Technology, TSI may publish generally applicable APIs or technical
specifications related to the TIB Technology, provided that such publication is
designed to achieve broad dissemination, is generally consistent with the then
current TFT procedures with respect thereto and does not materially adversely
affect any Reuters Intellectual Property Rights.
2.8 Trademark License.
-----------------
(a) The Reuters Parties hereby assign and transfer to TSI all of
their respective right, title and interest in and to the Transferred TIB-Related
Marks and all goodwill associated therewith, subject to a perpetual, royalty-
free, irrevocable, worldwide right and license in favor of the Reuters Parties
and their Affiliates to use Transferred TIB-Related Marks in connection with the
marketing, use, sale and distribution of any of the Reuters Parties' and their
Affiliates' respective products or the provision by the Reuters Parties or their
Affiliates of any services. At TSI's sole expense, the Reuters Parties shall
perform such acts and execute such documents as are reasonably required to
perfect the foregoing assignment and obtain and enforce trademark, service mark
and other similar rights in the Transferred TIB-Related Marks. TFT shall be
permitted to continue to use indefinitely TIBCO or TIB as part of its corporate
name, provided that such corporate name is at least as distinctive from TIBCO
Software, Inc. as TFT's current corporate name. The Reuters Parties and their
Affiliates' right to use such Transferred TIB-Related Marks shall be only in
conformance with TSI's trademark usage guidelines delivered to the Reuters
Parties from time to time, which guidelines shall be reasonable and shall not be
inconsistent with the scope of the license herein granted and shall not become
effective prior to thirty (30) days after notice thereof has been given by TSI.
TSI shall maintain the right to substitute any alternative trademark to the
Transferred TIB-Related Marks in the event such Transferred TIB-Related Mark is
held to infringe any other mark; provided that, if TSI advises either or both of
the Reuters Parties in writing of an alleged infringement, Reuters will be
responsible for any and all losses, liabilities, damages, costs and expenses
assessed or incurred as a result of such actual or alleged infringement that
accrue on or after the date of such notice.
(b) The Reuters Parties hereby acknowledge and recognize TSI's
exclusive worldwide ownership of the Transferred TIB-Related Marks and agree not
to take any action
17
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inconsistent with such ownership. The Reuters Parties acknowledge that their use
and the use by Reuters Parties Affiliates of the Transferred TIB-Related Marks
pursuant to this Agreement and any goodwill established thereby shall inure to
the sole benefit of TSI (or its Affiliates).
(c) The Reuters Parties and their Affiliates shall support TSI in
policing the use of the Transferred TIB-Related Marks and shall cooperate with
TSI in protecting the Transferred TIB-Related Marks, including cooperating in
becoming a registered user immediately of the Transferred TIB-Related Marks.
Such cooperation by the Reuters Parties and their Affiliates shall be at the
sole expense of TSI. Each of the Reuters Parties and their Affiliates shall
notify TSI of any infringement of the Transferred TIB-Related Marks that comes
to its attention.
(d) Neither Reuters Parties nor their Affiliates will attempt to
register with any trademark office, anywhere in the world, any trademark: (i)
that is confusingly similar to any of the Transferred TIB-Related Marks; or (ii)
that otherwise infringes or dilutes in a significant way any of the Transferred
TIB-Related Marks.
(e) The Reuters Parties and their Affiliates shall maintain the
quality of products and services in connection with which any Transferred TIB-
Related Mark is used at a level at least as high as the quality of the Reuters
or Reuters Affiliate products and services bearing the Transferred TIB-Related
Marks prior to the date hereof. The Reuters Parties and their Affiliates shall
not knowingly take or permit to be taken any actions that would detract in a
significant way from the goodwill or reputation associated with the Transferred
TIB-Related Marks.
(f) If TSI reasonably believes that any Reuters Parties product or
service associated with or bearing any of the Transferred TIB-Related Marks
fails to conform to the quality standards set forth herein, TSI shall provide
the Reuters Parties and their Affiliates with written notice thereof and the
Reuters Parties and their Affiliates shall promptly remedy any such failure and
provide TSI with evidence thereof.
(g) Notwithstanding the foregoing provisions of this Section 2.8, TSI
shall consent to the Reuters Parties registering, at their own expense, product
and company names and related marks that include the word "TIB", which (except
for the "TIB" component) are not confusingly similar with any TSI mark in
existence or applied for at such time, and which are used by a Reuters Party
solely in connection with TFT's company name or the marketing, use, sale and
distribution of any of the Reuters Parties' respective products or the provision
by the Reuters Parties of any services; provided, however, that if consent to
such registration is prohibited in a jurisdiction, TSI shall, at the Reuters
Parties' expense, either apply to register or assist the Reuters Parties in
applying to register such name and/or mark and license it to the Reuters Parties
in such jurisdiction. TSI and the Reuters Parties shall enter into a customary
license agreement embodying such terms and limited usage rights by TSI
consistent with the other terms of this Agreement; provided that,
notwithstanding the foregoing provisions of this Section 2.8(g), TSI shall not
be required to take any action pursuant to this Section that would
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injure, harm or otherwise adversely affect the goodwill associated with the TIB
mark or TSI's rights in the mark.
2.9 Reuters Affiliates. All rights and licenses granted by TSI to Reuters
------------------
pursuant to this Agreement, including without limitation the license
granted by TSI to Reuters under Section 2.6 and the Distribution License granted
by TSI to Reuters under Section 6.1, may be assigned, transferred or sublicensed
to, or otherwise exercised and enjoyed by, any Affiliate of Reuters without
limitation; provided that Reuters remains responsible for such Affiliates'
performance under this Agreement.
2.10 Third-party License Grants by the Reuters Parties. Neither the
-------------------------------------------------
Reuters Parties nor their Affiliates shall grant to a Third-party that is not an
Affiliate of Reuters a license to: (i) the TIB Technology of substantially the
same scope or broader as the license to the TIB Technology granted to TSI
hereunder; or (ii) a substantial portion of the Source Code for the TIB Software
that grants such Third-party the right to use such Source Code for the purposes
of creating general purpose, nonapplication specific, middleware products.
Without in any way limiting or expanding the foregoing, nothing set forth in
this Section 2.10 shall in any way restrict the Reuters Parties from licensing
Source Code for the TIB Software or other TIB Technology to Financial Services
Companies or to a Third-party that is licensing TIB Technology for the purposes
of creating products or services for Financial Services Companies or from
granting a confidential license to Source Code in connection with any escrow or
similar arrangement required in the course of granting a license to Object Code
for the TIB Software.
2.11 Payment. Reuters acknowledges the receipt of a payment by TSI of the
-------
sum of $10,000,000.00 in connection with the licenses granted under the
Original License Agreement.
2.12 TIBCO.net. Notwithstanding the restrictions set forth in Article 2,
---------
TSI shall be permitted to make available TIBCO.net Inter/Intranet hosting
services to Financial Services Companies; provided that TSI shall not provide
any Financial Products or services that use Financial Products (either
internally or otherwise) as part of or in connection with such TIBCO.net
services, except that TSI may, as the sole exception to the foregoing, provide
as part of TIBCO.net, hosting services for the stock quote and other financial
market data products offered by Third-parties. Notwithstanding the foregoing,
nothing in this Section 2.12 shall limit or otherwise affect any distribution or
other rights of TSI with respect to TSI Products that are not Licensed Products
after the expiration of the Exclusivity Period. TSI shall pay to Reuters [ * ]
percent ([ * ]%) of the TIBCO.net Revenues within thirty (30) days after the end
of the fiscal quarter in which TSI recognizes such revenue. For purposes of this
Section 2.12, "TIBCO.net Revenues" shall mean the revenues recognized by TSI in
accordance with GAAP with respect to TSI's provision of TIBCO.net services to
Financial Services Companies, less hardware costs, Internet service provider
fees and third party software fees in each case to the extent separately
allocable to the customer. TSI will be permitted under the TSI Limited
Distribution Rights to make available TFT products (e.g., feed handlers) in
TIBCO.net hosting services provided directly by TSI subject to payment by TSI to
TFT of a license and maintenance fee of [ * ]% of all revenue (less hardware
costs, Internet service provider fees and third party software fees in each case
to the extent separately allocable to the customer) recognized in accordance
with GAAP and
[ * ] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
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allocable to such TFT products, with TFT providing all related third-level
support for such TFT products inclusive in such fee. To the extent that any TFT
products or TSI Products are licensed, and related services are provided,
directly to Financial Services Companies (rather than as part of TSI-provided
TIBCO.net hosting services), the TFT products and related services shall be
provided by TFT and the TSI Products and related services shall, during the
Exclusivity Period, be provided by TFT. Any TFT products and related services
that are licensed or provided directly to non-Financial Services Companies
(rather than provided as part of TIBCO.net hosting services) shall be licensed
or provided by TSI pursuant to the TSI Limited Distribution Rights. All
allocations in this Section 2.12 shall be made consistent with Section 6.4.
2.13 Distribution Rights. All rights and licenses granted to a Party
-------------------
hereunder to sell, sublicense or otherwise distribute any products or Technology
shall include the right to sell, sublicense or distribute such products or
Technology by any and all means whatsoever whether now known or hereafter
devised, subject to any limitations or other provisions applicable to
distribution over the Internet or other specified means that are expressly set
forth in this Agreement.
ARTICLE 3.
DELIVERABLES
3.1 Initial Delivery of Licensed Technology. Pursuant to Section 3.1 of
---------------------------------------
the Existing License Agreement, Reuters has delivered by electronic transfer to
TSI the Deliverables related to the TIB Technology contemplated to be delivered
by Reuters to TSI.
3.2 Delivery of TSI Technology. During the period beginning on the
--------------------------
Effective Date and ending on the fifteenth (15th) anniversary of the Original
Effective Date, TSI will disclose, and where reasonably necessary, deliver, or
cause to be disclosed or delivered to Reuters, or its designee, all TSI
Technology including, any TSI Source Code and other materials and information as
may reasonably be requested by Reuters, related to TSI Technology, hereafter
owned or Controlled by TSI. Such TSI Technology shall be so delivered promptly
upon the creation of such TSI Technology; provided that TSI shall deliver Source
Code (in the form of human-readable Source Code listing printouts, in machine-
readable electronic form) of all TSI Products, including Enhancements to
existing TSI Products promptly as each alpha, beta and general release version
(including any customizable TSI Products supported by TSI) is available and in
any event no less frequently than every 90 days. TSI represents and warrants
that all TSI Technology, including Source Code, existing on the Original
Effective Date has been disclosed or, if reasonably necessary, delivered to
Reuters or its designee as provided in Section 3.2 of the Existing License
Agreement. Through and until the fifteenth (15th) anniversary of the Original
Effective Date, the Parties will maintain in effect the "clean room" procedures
established pursuant to Paragraph 2 of the letter agreement entered into by the
Parties as of the Original Effective Date.
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ARTICLE 4.
OWNERSHIP
4.1 Ownership by Reuters. As between each of the Reuters Parties and TSI,
--------------------
such Reuters Party shall be the exclusive owner, subject to the rights granted
to TSI hereunder or to Third-parties, of: (i) all Technology independently
developed by such Reuters Party, including in the course of providing
maintenance services; and (ii), subject to any patent rights of TSI, all
Intellectual Property Rights that cover, protect or embody such Technology set
forth in (i) of this Section 4.1.
4.2 Ownership by TSI. As between the Reuters Parties and TSI, TSI shall
----------------
be the exclusive owner, subject to the rights granted to Reuters hereunder and
to Third-parties, of: (i) any Technology independently developed by TSI,
including in the course of providing Maintenance Services; and (ii), subject to
any patent rights of the Reuters Parties, all Intellectual Property Rights that
cover, protect or embody such Technology. To the extent that such Technology is
a Derivative Work with respect to, or based on any TIB Technology, TSI's
ownership of such Technology shall be subject to Reuters' ownership of the TIB
Technology on which such Derivative Work is based or that is incorporated in
such Derivative Work, and its Intellectual Property Rights therein.
4.3 Cooperation. Each Party shall, upon the other Party's request,
-----------
cooperate with the requesting Party in obtaining, perfecting or protecting such
Party's interests, including Intellectual Property Rights, in any Technology,
software or product, at the requesting Party's expense.
4.4 Jointly-Developed Technology. The allocation of Intellectual
----------------------------
Property Rights in any Technology that is jointly developed by the Parties shall
be determined by mutual agreement allocating ownership and related rights and
obligations with respect to such Technology on a case-by-case basis in
accordance with the principles of Section 5.10.
ARTICLE 5.
DEVELOPMENT AND MAINTENANCE SERVICES
5.1 Development of TIB Technology.
-----------------------------
(a) Reuters may, in its sole discretion, continue to improve and
enhance the TIB Technology including by creating Reuters Enhancements that are
licensed under Section 2.3 hereof.
(b) Subject to Section 5.4, TSI shall continue to enhance, update and
improve the TIB Technology as it relates to Licensed Products and Licensed
Services. All such Enhancements shall be licensed and disclosed to Reuters in
accordance with Sections 2.6 and 3.2, respectively.
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5.2 Maintenance Services.
--------------------
(a) TSI shall provide second and third level maintenance and support
for TSI Products to Reuters and its Affiliates with respect to all Reuters and
Reuters Affiliates' direct and indirect customers that acquire TSI Products
(whether or not such TSI Products are Embedded and including without limitation
customers that have entered into agreements with TFT after the Original
Effective Date). Such maintenance and support shall be in accordance with TSI's
then current normal maintenance and support practices, but in all events shall
be of no less quality and scope than the second and third level of maintenance
and support being provided by TSI on the Effective Date and in any event of not
less quality and scope than generally accepted industry standards. TSI shall
have no obligation to provide maintenance or support directly to any such
customers; provided that, notwithstanding the foregoing, the Reuters Parties
reserve the right to request any member of the TFT/Reuters dedicated staff
maintained pursuant to Section 5.2(b) to provide such direct support in cases
where such direct support is reasonably necessary, and TSI agrees to provide
such direct support when and as so requested.
(b) Without limiting the generality of any other provision of this
Agreement that relates to the maintenance and support obligations of TSI, TSI
shall maintain, at no additional charge to Reuters or its Affiliates during any
period that minimum annual license fees are payable pursuant to Section 6.3,
TFT/Reuters-dedicated staff of at least ten (10) full-time employees (subject to
semi-annual proportionate increase based on the extent to which license fees
paid to TSI in any semi-annual period are proportionately greater than the
license fees that were paid during the previous semi-annual period, without
regard to any minimum license fee payments) that are exclusively dedicated to
the performance of maintenance, technical, sales and administrative support for
and as directed by Reuters and TFT in connection with Reuters and TFT sales and
support of TSI Products and, as TSI and TFT shall mutually agree in order for
TSI to carry out such obligations, located in whole or in part at TFT's offices.
Additional TFT/Reuters-dedicated staff that may be necessary to provide adequate
support shall be provided by TSI as Reuters or TFT shall require; provided that
such additional staff shall be provided at support rates to be agreed by TSI and
the Reuters Parties. Additional dedicated maintenance and support for Embedded
TSI Products will be on a time and materials basis to the extent requested by
TFT.
(c) The Maintenance Services to be provided by TSI shall be equivalent
to or better than the normal level of maintenance provided by TSI to its
customers and shall, at a minimum, include the following:
(1) TSI shall promptly disclose to the Reuters Parties any bugs,
defects or errors in the operation of the TSI Products as the same become known
to TSI;
(2) TSI shall use its diligent efforts to remedy any bugs,
defects, or errors in the operation of the TSI Products known to it, including
as a result of any request from Reuters to remedy any bugs, errors or other
defects in such software in accordance with the severity level of such bugs,
defects or errors set forth in Schedule 5.2(a);
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(3) TSI shall promptly provide to the Reuters Parties any Enhancements
made by TSI, or available to TSI, to the TSI Products and any materials or
documentation related to the operation or use of such software, in each case in
sufficient number and form to provide to all end-users; and
(4) Qualified TSI personnel will be available during normal business
hours in each region where TSI normally provides maintenance and support
services and will respond in accordance with the standards set forth in Schedule
5.2(c) to calls from Reuters Parties regarding assistance with, or malfunctions
or errors in the operation of, the TSI Products.
5.3 Sharing of Maintenance Revenue. The payments owing in respect of
------------------------------
maintenance revenue shall be as provided in Section 6.3; provided that the
Parties shall allocate pursuant to Section 6.4 the portion of Reuters or TFT
maintenance revenues generated with respect to a Reuters or TFT product
containing an Embedded TSI Product that is attributable to such Embedded TSI
Product.
5.4 Maintenance of TIB Software Products. TSI shall be responsible for
------------------------------------
maintaining, enhancing, supporting and improving any TIB Software products
licensed to TSI hereunder. TSI shall use its reasonable efforts to assure that
such software products are, to the extent reasonably practicable, at all times
maintained as competitive and viable products in the relevant market place.
Notwithstanding the foregoing, TSI may, in its discretion, determine that it no
longer wishes to continue to maintain or support one or more TIB Software
products, and in such event, it shall provide Reuters with reasonable advance
notice thereof and, at Reuters' request, shall provide Reuters with reasonable
assistance, at no cost to Reuters, to permit Reuters to acquire the resources,
skills and expertise to continue to maintain and support such product upon the
discontinuance of maintenance and support thereof by TSI.
5.5 Other TSI Development Services. If Reuters requests that TSI
------------------------------
undertake other development or consulting services related to the TIB
Technology, the parties shall negotiate in good faith toward an agreement for
the provision of such services by TSI, on a most-favored-customer basis, to
Reuters.
5.6 Other TFT Consulting Services. If TSI requests the consulting or
-----------------------------
other services of TFT in connection with the provision by TSI of products or
services to a Third-party, it shall provide TFT written notice thereof. TFT or
Reuters shall have the option, but not the obligation, to provide such services
on terms to be reasonably negotiated.
5.7 TFT Support of TSI Products. TFT shall make available to TSI on
---------------------------
reasonable terms and conditions (including compensation to be agreed and
consistent with TFT's marketing of its own products and services), the services
of TFT's international sales and service offices which services shall be for the
purpose of enabling TSI to market, install and maintain Licensed Products or to
provide Licensed Services in the regions served by such TFT offices.
5.8 Builds and Flavoring, Etc. If requested by Reuters or any of its
-------------------------
Affiliates in connection with any license of TSI Products by Reuters, such
Affiliate or their distributors, TSI shall promptly and diligently generate
builds of such products to be delivered to such licensees
23
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and shall perform such flavoring and ticketing as reasonably requested by
Reuters or such Affiliate for such licensee in a manner designed to satisfy any
reasonable acceptance criteria or specifications relating to such products,
provided that all costs and expenses related to such builds or flavoring or
ticketing that are not normally done by TSI in the ordinary course of building
and releasing such TSI Products shall be paid by Reuters or the requesting
Affiliate on a time and materials basis.
5.9 Year 2000. TSI will ensure that as part of Maintenance Services it
---------
has available as and when reasonably required by the Reuters Parties a
proportionate share of its field and central support and technical staff of at
least the same scope as set forth in Section 5.2 during the period from December
30, 1999 through January 30, 2000 as may be required to address Year 2000 issues
with respect to the TSI Products previously licensed to end-users by Reuters,
its Affiliates and their distributors. The proportionate share shall be
determined by reference to revenues attributable to TSI Products sold by
Reuters, its Affiliates and their distributors as compared to all other TSI
Product revenue since December 31, 1996.
5.10 Certain Intellectual Property Ownership. In the event that TSI or a
---------------------------------------
Reuters Party provide consulting or development services, one to the other,
involving the development of software, the parties shall agree in writing as to
the respective ownership of intellectual property rights (including patents,
copyrights, trade secrets and similar rights) in and to any such software
("Developed Software") and their respective obligations with respect thereto.
Nothing in this Section 5.10 shall be deemed to constitute or create any
transfer of any intellectual property rights of either party that existed prior
to the provision of the particular consulting or development services and that
were used in the provision of such consulting or development services, and the
intellectual property ownership of such Developed Software shall be subject to
any such pre-existing rights.
ARTICLE 6.
REUTERS DISTRIBUTION RIGHTS
6.1 Distribution of TSI Products.
----------------------------
(a) Subject to the terms and conditions of this Article 6, Reuters
(and its Affiliates) shall be the preferred distribution channel to Financial
Services Companies, for all existing and future TSI Products, and TSI hereby
agrees and covenants with Reuters not to take any action, the purpose or effect
of which is to circumvent the role of Reuters (and its Affiliates) as such
preferred distribution channel, including without limitation by appointing any
Third Party Reseller to sell TSI Products principally to Financial Services
Companies or appointing any Third Party Reseller that TSI is aware intends to
sell TSI Products principally to Financial Services Companies.
(b) TSI hereby grants to Reuters the right and license (the
"Distribution License") to copy, make, have made, perform, display, offer for
- ---------------------
sale, import, sell sublicense and otherwise distribute on the terms and
conditions set forth in this Article 6, any and all current or future TSI
Products (including hardware and/or software products) that TSI, either
24
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directly or through others, now or hereafter makes available, sells, licenses,
distributes or otherwise exploits.
(c) For the five (5)-year period commencing on the Effective Date (the
"Exclusivity Period"), the Distribution License, to the extent it authorizes
------------------
Reuters to sublicense, distribute and otherwise exploit TSI Products to or for
Financial Services Companies shall be sole and exclusive throughout the world
(including as to TSI), subject only to the provisions of Sections 6.1(d) and (e)
and the right of TSI to license, distribute or otherwise provide or exploit TSI
Products through Third Party Resellers to the same extent as TSI is permitted
to license, distribute or otherwise provide or exploit Licensed Products
pursuant to Section 2.5. As an adjunct to the exclusive rights of Reuters under
the Distribution License during the Exclusivity Period and to ensure that
Reuters (and its Affiliates) enjoy the full benefit of such exclusive rights,
TSI agrees that, during the Exclusivity Period, it shall not, and shall cause
its subsidiaries not to, directly or indirectly (whether or not through the use
of an interposed Person or through or to consultants or agents), conduct,
support, participate or engage in any business involving the provision of
services to a Financial Services Company, including providing consulting,
design, integration, customization, operation, support, development, partnering,
co-sourcing, data-processing, network management and similar services to a
Financial Services Company. Except as provided in the foregoing provisions of
this Section 6.1(c), the Distribution License shall be non-exclusive.
Notwithstanding the exclusive rights granted in this Section 6.1(c), TSI agrees
and acknowledges that Reuters and its Affiliates have no best efforts obligation
with respect to the exercise by Reuters of any such exclusive rights.
(d) Without limiting the generality of the foregoing, the distribution
rights of Reuters (and its Affiliates) set forth in Section 6.1(c) shall not
limit the right of TSI (at any time) to provide to a Third-party that is not a
Financial Services Company any TSI Products and related services: that (i) are
generally applicable to all fields, (ii) do not include functionality or
features specifically designed for use by a Financial Services Company, and
(iii) are not specifically designed for use by such Third-party or TSI Affiliate
for the purposes of creating products or services for Financial Services
Companies. In addition, commencing with the first year in respect of which
Reuters has elected not to pay a minimum annual license fee pursuant to Section
6.3(a) and continuing thereafter, the foregoing exclusive distribution rights
shall not limit TSI from selling, licensing, distributing or otherwise
exploiting Commodity Products to any third party; provided that, if TSI
materially breaches any of its obligations under this Agreement, and such breach
has not been cured within the period and in the manner specified in Section
6.6(a), solely with respect to Financial Services Companies, TSI thereafter
shall be prohibited from selling, licensing, distributing or otherwise
exploiting, (x) during the Exclusivity Period, any and all Commodity Products,
and (y) after the expiration of the Exclusivity Period, any and all Commodity
Products that are Licensed Products, in each case irrespective of whether
Reuters has continued to elect pursuant to Section 6.3(a) to pay a minimum
annual license fee to TSI at the time of any such breach. For the avoidance of
doubt, the Parties agree that nothing in this Section 6.1 creates any exceptions
or otherwise affects any rights or limitations set forth in Article 2 with
respect to the licensing or other exploitation of Licensed Products.
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(e) In addition, nothing in Section 6.1(a), (b) or (c) will prohibit
TSI from bona fide mergers, acquisitions, purchases of assets or other similar
transactions by TSI of or with going concerns that sell products or provide
services to Financial Services Companies. In the event of such transaction, TSI
shall be permitted to continue and expand the business of such acquired or
merged entity in all respects or the assets so acquired including with respect
to Financial Services Companies, notwithstanding any provision of this Agreement
to the contrary, except that the restrictions in Section 2.4 shall continue to
apply following any such transaction with respect to the products or services of
such going concerns that are sold or provided to Financial Services Companies to
the extent that TSI has Embedded or incorporated any TIB Technology, Reuters
Enhancements or TIB-Derived Technology into such product or services. TSI
Affiliates shall be subject to, and have the rights under, the terms of this
Agreement. Notwithstanding the foregoing provisions of this Section 6.1(e), and
subject to TSI's right to grant sublicenses as and to the extent provided in
Sections 2.1(a)(2), 2.1(b) and 2.5 above, TSI shall not, except with Reuters'
consent (in accordance with Section 12.6), directly or indirectly, assign its
rights under this Agreement.
(f) TSI shall cause, and shall cause its subsidiaries to cause, their
respective employees to comply with the exclusivity rights in favor of Reuters
for so long as they are employees of TSI or a subsidiary of TSI.
(g) TSI shall not, directly or indirectly, assign, transfer or dispose
of its rights under this Agreement (by change of control, through affiliate
action, takeover, reorganization, restructuring, spin-off or similar corporate
transactions or otherwise), for the purposes of circumventing, avoiding or
limiting the exclusivity rights of Reuters set forth in Section 6.1(c).
(h) During the Exclusivity Period, and provided that TSI is actively
in the business of supplying Licensed Products and Licensed Services in
accordance in all material respects with the rights granted to it hereunder,
except as otherwise agreed by TSI in writing, TFT, including any subsidiary of,
or successor (other than a successor that is Reuters or an Affiliate of Reuters)
to TFT, shall neither: (i) conduct, support, participate or engage in any
business involving the provision of services that are not related to a Financial
Product to a Person that is not a Financial Services Company, including
providing design, consulting, integration, embedding, operational support,
partnering, co-sourcing, data processing, network management, service
provisioning, or similar services; nor (ii) engage in the business of creating,
licensing or selling a product that is not a Financial Product to a Person that
is not a Financial Services Company. TSI agrees and acknowledges that TIB
Mercury and TIB Exchange each constitutes a Financial Product. This Section
6.1(h) shall apply to TFT only, and, without limiting the foregoing, shall not
in any way apply to or bind Reuters or any other Affiliate of Reuters.
(i) The exclusive rights of the parties contained in this Section 6.1
relate to matters which are of a special, unique and extraordinary character and
a violation of any of the terms of this Section 6.1 will cause irreparable
injury to the aggrieved party, the amount of which will be impossible to
estimate or determine and which cannot be adequately compensated. Therefore,
the aggrieved party shall be entitled to an injunction, restraining order or
other
26
<PAGE>
equitable relief from any court of competent jurisdiction in the event of any
breach of the exclusivity rights of such party under this Section 6.1. The
rights and remedies provided by this Section 6.1 are cumulative and in addition
to any other rights and remedies, including damages (including monetary,
punitive or enhanced damages), which the aggrieved party may have hereunder or
at law or in equity.
(j) The parties hereto agree that, if any court of competent
jurisdiction in a final nonappealable judgment determines that a specified time
period, a specified geographical area, a specified business limitation or any
other relevant feature of this Section 6.1 is unreasonable, arbitrary or against
public policy, then a lesser time period, geographical area, business limitation
or other relevant feature which is determined to be reasonable, not arbitrary
and not against public policy may be enforced against the applicable Party.
(k) Nothing set forth in this Section 6.1 is intended to or shall
otherwise grant TSI any rights or licenses with respect to the Reuters
Intellectual Property Rights.
(l) TSI Products shall be sublicensed and otherwise distributed under
this Section 6.1 pursuant to Authorized Licenses.
(m) Notwithstanding the foregoing provisions of this Section 6.1,
solely with respect to TFT and its successors and assigns (other than a
successor or assign that is Reuters or an Affiliate of Reuters), and except as
otherwise agreed by TSI in writing, the Distribution License exercisable by TFT
shall be limited to the sale, sublicense and distribution to Financial Services
Companies and the sale, sublicense and distribution of TSI Products on a
Embedded basis with Financial Products, provided that TFT shall not be
prohibited from providing TSI Products through a third party distributor or
reseller of TFT (each a "TFT Distributor") so long as the following conditions
are satisfied: (i) TFT cooperates with TSI to avoid channel conflict with TSI
in relation to any such provision of TSI Products or related services to non-
Financial Services Companies; and (ii) TFT makes the payments specified in
Section 6.3(b). In the event that any such TFT Distributor engages in more than
such de minimis sales of TSI Products to entities that are not Financial
Services Companies ("Non-FSC Sales"), (x) TFT shall use reasonable commercial
efforts to assist TSI in obtaining a distribution or resale relationship
directly with the TFT Distributor with TSI being the provider of all TSI
Products to or for non-Financial Services Companies; (y) if more than [ * ] (but
less than [ * ]) of the revenues received by TFT from any such TFT Distributor
are attributable to Non-FSC Sales, [ * ] of such revenues from Non-FSC Sales
shall be paid by TFT to TSI; and (z) if more than [ * ] of the revenues received
by TFT from any such TFT Distributor are attributable to Non-FSC Sales [ * ] of
such revenues from Non-FSC Sales shall be paid by TFT to TSI.
(n) If either Reuters or TSI wish to have TSI engage in an activity,
or to produce a product, otherwise prohibited to TSI pursuant to Section 6.1(c),
the Parties shall engage in good faith negotiations in relation to whether to
permit TSI, on such terms and conditions as may be agreed in writing, to engage
in such otherwise prohibited activities either on its own or jointly with
Reuters and/or TFT. If either TFT or TSI wish to have TFT engage in
[ * ] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
27
<PAGE>
an activity otherwise prohibited to TFT pursuant to this Section 6.1, the
Parties shall engage in good faith negotiations in relation to whether to permit
TFT, on such terms and conditions as may be agreed in writing, to engage in such
otherwise prohibited activities either on its own or jointly with TSI.
6.2 Supply of Products. In order to permit Reuters to distribute TSI
------------------
Products in accordance with Section 6.1, TSI shall promptly inform Reuters of
the existence of each new TSI Product that TSI intends generally to make
available, sell, embed, license, sublicense or distribute. At the same time
that TSI makes such TSI Product available for sale or license to any Third-
party, TSI shall also make such TSI Product, and true and correct copies of any
related documentation and release notes, available to Reuters for distribution
and sale by Reuters and Reuters Affiliates pursuant to Section 6.1. TSI shall
make TSI Products available to Reuters at least to the same extent such products
are made available for sale or license to Third-parties (e.g., as indicated on
TSI's "Product Availability" chart).
6.3 Distribution Fee.
----------------
(a) Reuters shall pay TSI minimum annual license fees in respect of
licensing and maintenance revenue recognized by the Reuters Parties in respect
of TSI Products other than ETX Software (collectively the "Revenue-Sharing
---------------
Products") of $16 million, $18 million and $20 million during 1999, 2000 and
- --------
2001, respectively. The minimum annual license fees will be payable in
quarterly installments on the last day of each calendar quarter ("Quarterly
---------
Minimum License Fee Installments"); provided that (x) a Quarterly Minimum
- --------------------------------
License Fee Installment shall be payable at such time only if Reuters reasonably
determines in good faith that TSI is not then in material breach of this
Agreement and (y) the $16 million minimum annual license fee for 1999 shall be
paid in three equal quarterly installments at the end of each quarter in 1999
beginning with the quarter ending June 30, 1999 (with the $16 million minimum
license fee payable over the last three quarters of 1999 being reduced by the
amount of any license fees paid previously by the Reuters Parties to TSI in
respect of sales of TSI Products during 1999). Any such Quarterly Minimum
License Fee Installment that is so withheld as provided in clause (x) above will
be payable by Reuters to TSI (without interest) promptly after TSI shall have
cured any and all such material breaches or if the breach is not capable of such
cure, TSI shall have taken remedial measures to substantially mitigate any
adverse impact on the Reuters Parties of such breach to Reuters' reasonable
satisfaction. In no event shall any Quarterly Minimum License Fee Installment
payable in respect of a given quarter exceed the difference between (i) the sum
of the scheduled Quarterly Minimum License Fee Installment payable in respect of
such quarter and any Quarterly Minimum License Fee Installments payable in
respect of any prior quarter during the year in question and (ii) the aggregate
amount of license fees (including Quarterly Minimum License Fee Installments)
paid in respect of any such prior quarters during such year.
Commencing with TSI's last fiscal quarter of 2001 and, so long as Reuters
shall have elected in accordance herewith to pay a minimum annual license fee in
respect of each intervening year, during TSI's last fiscal quarter of each
succeeding year thereafter (or, if TSI's fiscal year is hereafter changed, the
last calendar quarter of each such year), Reuters may elect at
28
<PAGE>
any time prior to the end of such quarter to pay, in the following year, a
minimum annual license fee, in the case of each of the year 2002 and the year
2003, equal to $20 million, and for each year thereafter 110% of the minimum
annual license fee payable by Reuters hereunder in such year in which the
election is made (with the minimum annual license fee for the year 2004
accordingly being set at $22 million); provided that if Reuters does not elect
to pay such minimum license fee in the following year the following arrangements
will be applicable:
(1) Reuters shall pay to TSI, on a quarterly basis, [ * ]% of the
licensing and maintenance revenue of the Reuters Parties and their Affiliates
that is attributable to Revenue-Sharing Products recognized in accordance with
GAAP or its foreign equivalent by the Reuters Parties and their Affiliates
during each quarter;
(2) notwithstanding any provision of this Agreement to the contrary,
but subject to Section 6.6, the provisions of Section 2.4 and in Section 6.1(c)
shall be deemed not to apply to Commodity Products, and TSI shall be permitted
to sell, license or otherwise distribute Commodity Products to Financial
Services Companies, with TSI permitted to provide standard maintenance,
including upgrades, enhancements and bug fixes to customers of Commodity
Products; and
(3) the provisions of Section 5.2(b) regarding TSI's dedicated support
obligations will be waived and TSI's maintenance obligation will consist of
third level only, with Reuters having a right to contract with TSI for second
level maintenance.
Once the arrangements in clauses (1), (2) and (3) above become effective
following Reuters opting not to elect in respect of any applicable year to pay a
minimum annual license fee in accordance with the foregoing provisions of this
Section 6.3(a), such arrangements shall continue in effect in perpetuity,
subject to the provisions of Section 6.6.
(b) At all times during which Reuters (or any Reuters Affiliate)
distributes any TSI Products pursuant to this Article 6, Reuters shall pay TSI,
on a quarterly basis, a license fee in respect of TSI Products equal to [*]%
(or such lower rate as is expressly provided in Section 6.3(a) or Section 6.6)
of the license and maintenance revenues attributable to Revenue-Sharing Products
recognized by the Reuters Parties or any of their Affiliates during the prior
quarter in accordance with GAAP or its foreign equivalents (less any discounts
not already deducted from revenues and less any withholding taxes included in
such revenues), excluding revenues attributable to TSI Products that are
Embedded in TFT or Reuters products, such as TFT's Market Data System product or
Reuters' Triarch product (including any successor products of Reuters or its
Affiliates that incorporates or combines such TFT Market Data System or Reuters
Triarch product, any and all such products being referred to as an "MDS") or
---
where TIB/Rendezvous is packaged with an MDS for use exclusively with such MDS,
such that the end user may utilize TIB/Rendezvous only in connection with such
MDS and with no other application, thereby requiring separate sale of
TIB/Rendezvous to the end user for use in connection with other applications.
However, if either of the Reuters Parties or any of their Affiliates sells or
distributes such Revenue-Sharing Products through a Third-party, such license
and maintenance fee shall be [*]% of the revenue recognized by such Reuters
Parties or Affiliates
[ * ] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
29
<PAGE>
in accordance with GAAP or its foreign equivalents (less any discounts not
already deducted from revenues and less any withholding taxes included in such
revenues). The foregoing license fee rate shall be effective as of January 1,
1998. License Fees in excess of the applicable Quarterly Minimum License Fee
Installment will be payable in respect of a particular calendar quarter only if
and to the extent the aggregate amount of license fees accrued in respect of
such quarter, together with the license fees accrued during all prior calendar
quarters during the year in question, exceed the sum of the Quarterly Minimum
License Fee Installment payable for such quarter and all such prior quarters in
such year.
(c) TSI shall have the right, at its sole expense, to engage its
external auditors to audit the books and records of the Reuters Parties or any
of their Affiliates relating to the maintenance and distribution of TSI Products
for purposes of verifying the calculation of the license fees payable to TSI,
subject to reasonable confidentiality provisions and further provided that such
right shall be exercised no more frequently than once each calendar year. If
any adjustments are made to the amount of licensing revenues that were
recognized in a given quarter after the payment of license fees in respect of
such quarter, corresponding adjustments will be made to the amount of license
fees payable in respect of such quarter. The Reuters Parties shall maintain
complete and accurate files and books and records of account with respect to the
revenues earned from maintenance and distribution of the TSI Products by the
Reuters Parties and their Affiliates. Records will be maintained for a period
of at least three (3) years after the creation of such records.
6.4 Allocation of Revenue. In order to allocate fairly revenues relating
---------------------
to licenses of TSI and Reuters Parties products, services or any other item and
the provision of related maintenance and support, such revenues shall be
determined in accordance with the following:
(i) The Reuters Parties shall allocate fees fairly as between the
TSI Product license and maintenance fees, on the one part, and
any Reuters or TFT products, services or any other item, sold in
connection with any customer transaction or series of related
transactions. Such fair allocation shall be based on a
presumption that TSI Product license or maintenance fees have
not been discounted at a greater rate (based on standard list
price) than any Reuters or TFT products, maintenance, services or
any other item, sold in connection with any customer transaction
or series of related transactions.
(ii) The Reuters Parties shall not structure any customer transaction
or series of transactions with the purpose of reducing the
pricing or allocation of TSI Product license or maintenance fees
in relation to any such Reuters or TFT products or services or
other items. For example, in a transaction that includes TSI
Products and Reuters or TFT services, Reuters and TFT shall
fairly allocate service fees only for services actually performed
and shall not, in connection with the determination of the amount
properly allocable to sales of products, deem TSI Product or
license fees to have been discounted in a proportionate amount
greater than the proportionate amount that such services have
been discounted.
30
<PAGE>
The provisions of this Section 6.4(i) and (ii) shall apply mutatis mutandis
to the allocation of revenues of TSI that are subject to a payment obligation
from TSI to any Reuters Party under this Agreement.
6.5 Reconciliation of 1998 License Fee Amounts. The amount payable by
------------------------------------------
TFT to TSI in respect of the licensing by the Reuters Parties of TSI Products
and the provision of related maintenance services during 1998 shall be
reconciled on the books of TFT and TSI (and an appropriate adjusting payment
shall be made) to reflect the actual amount owing to TSI under the Existing
License Agreement based on the [ * ]% license fee payable as described in
Section 6.3 above.
6.6 Effect of the Occurrence of Specified Events on License Fee
-----------------------------------------------------------
Obligations of Reuters.
- ----------------------
(a) In the event that (i) any of the material restrictions imposed on
TSI pursuant to Section 2.4 or the exclusivity rights of Reuters in Section
6.1(c) ceases to be legally and fully effective (in the case of the exclusivity
rights granted in Section 6.1(c), other than by reason of expiration of the
Exclusivity Period), or (ii) TSI shall have materially breached any of its
obligations under this Agreement, and such breach shall not have been cured
within a reasonable period not to exceed six months from the date written notice
of such breach is given by Reuters or, in the case of an incurable breach, TSI
shall not have taken remedial measures to substantially mitigate any material
adverse impact on Reuters (and its Affiliates) of such breach to Reuters'
reasonable satisfaction within a reasonable period not to exceed six months from
the date written notice of such breach is given by Reuters, then,
notwithstanding anything contained in this Agreement to the contrary,
(x) if and to the extent applicable, Reuters, at its election, may
cease immediately paying any further Quarterly Minimum License
Fee Installments owing by Reuters for the remainder of such year
or in any future year as to which Reuters otherwise would have an
obligation to pay any minimum annual license fees pursuant to
Section 6.3(a);
(y) only in the event of a material breach by TSI of any of its
obligations under this Agreement that is not cured when and as
provided above in clause (ii) of this Section 6.6(a), and
irrespective of whether Reuters is or is not then paying a
minimum annual license fee to TSI pursuant to Section 6.3(a), TSI
thereafter shall, solely with respect to Financial Services
Companies, be prohibited from selling, licensing, distributing or
otherwise exploiting, (I) during the Exclusivity Period, any and
all Commodity Products, and (II) after the expiration of the
Exclusivity Period, any and all Commodity Products that are
Licensed Products, with the effect that thereafter TSI shall be
prohibited from selling, licensing or distributing Commodity
Products (or, after the expiration of the Exclusivity Period,
Commodity Products that are Licensed Products) to Financial
Services Companies without regard to any election by Reuters to
31
[ * ] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
<PAGE>
pay, or any payment by Reuters of, any minimum annual license fee
pursuant to Section 6.3(a); and
(z) the license fee rates specified in Section 6.3 in respect of
licensing and maintenance revenue shall be reduced to [ * ]% (or,
if lower, the lowest equivalent distribution fee or license fee
received by TSI at such time for equivalent volumes from any
other distributor or reseller of TSI Products), in each case
effective as of the date on which such notice of breach has been
given by the Reuters Parties.
(b) If, after the expiration of the Exclusivity Period, TSI engages
in any activity of a kind that is defined to be within the exclusive rights of
Reuters under Section 6.1(c) (and thus such activity would have violated the
exclusive rights of Reuters but for the expiration of the Exclusivity Period),
and if such activity has not ceased in its entirety and the adverse impact of
such activity on Reuters (and its Affiliates) eliminated in its entirety
(including without limitation through the termination of all rights and licenses
granted by TSI in connection with such activity) within six (6) months after TSI
commenced such activity, or if TSI is incapable of causing such activity to
cease in its entirety and eliminating the adverse impact of such activity on
Reuters (and its Affiliates) in its entirety, TSI shall have failed to take
remedial measures to substantially mitigate any material adverse impact on the
Reuters Parties of such activity to Reuters' reasonable satisfaction within six
(6) months after TSI commenced such activity,
(i) if and to the extent applicable, Reuters, at its election, may
cease immediately paying any further Quarterly Minimum License
Fee Installments owing by Reuters for the remainder of such year
or in any future year as to which Reuters otherwise would have an
obligation to pay any minimum annual license fees pursuant to
Section 6.3(a) (it being understood that, upon any such election
by Reuters, TSI shall be permitted to sell, license or distribute
Commodity Products to any third party in perpetuity, subject to
Section 6.6(a)); and
(ii) the license fee rates specified in Section 6.3 in respect of
license and maintenance revenue attributable to Revenue-Sharing
Products shall be reduced to * percent (*%) (or, if lower, the
lowest equivalent distribution fee or royalty received by TSI at
such time for equivalent volumes from any other distributor or
reseller of TSI Products), effective as of the date on which TSI
commenced such activity.
ARTICLE 7.
CONFIDENTIAL INFORMATION
7.1 Treatment of Confidential Information.
-------------------------------------
(a) The Receiving Party shall treat as confidential all of the
Disclosing Party's Confidential Information (except to the extent that the
Receiving Party receives such
[ * ] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
32
<PAGE>
Confidential Information in connection with a transfer of ownership thereof
pursuant to this Agreement) and shall not use such Confidential Information
except as expressly permitted under this Agreement. Without limiting the
foregoing, the Receiving Party shall use at least the same degree of care which
it uses to prevent the disclosure of its own confidential information of like
importance, but in no event with less than reasonable care, to prevent the
disclosure of the Disclosing Party's Confidential Information.
(b) All Deliverables provided by Reuters to TSI, other than published
documents and materials, disclosing the TIB Technology shall be deemed
Confidential Information of Reuters notwithstanding any failure to mark such
documents or materials as "Confidential."
(c) TSI may disclose Reuters Confidential Information to a Third-party
only: (i) as may be permitted by this Agreement; (ii) subject to a written
Confidentiality Agreement that contains terms at least as protective of such
information as this Agreement; or (iii) with Reuters' express, prior written
approval.
7.2 Exclusions.
----------
(a) Confidential Information shall exclude information that the
Receiving Party can demonstrate: (i) was independently developed by the
Receiving Party; (ii) became known to the Receiving Party, without restriction,
from a Third-party or Affiliate who had a right to disclose it; (iii) was in the
public domain at the time it was disclosed or enters the public domain through
no act or omission of the Receiving Party; or (iv) was known to the Receiving
Party at the time of disclosure.
(b) The restrictions set forth in Section 7.1 shall not apply to
Confidential Information which is required to be disclosed by the Receiving
Party pursuant to an order or requirement of a court, administrative agency, or
other governmental body; provided, however, that the Receiving Party shall
provide prompt notice thereof to the Disclosing Party and shall use reasonable
efforts to obtain a protective order or otherwise prevent public disclosure of
such information.
7.3 Confidentiality of Agreement. Each Party agrees that the terms and
----------------------------
conditions of this Agreement, but not the existence of this Agreement, shall be
treated as Confidential Information and that no reference to the terms and
conditions of this Agreement or to activities pertaining thereto can be made in
any form of pubic or commercial advertising without the prior written consent of
the other Parties; provided, however, that each Party may disclose the terms and
conditions of this Agreement:
(a) as required by any court or other governmental body;
(b) as otherwise required by law;
(c) to legal counsel of the parties;
33
<PAGE>
(d) in connection with the requirements of any securities market
filing or public offering;
(e) in confidence, to accountants, banks, and financing sources and
their advisors; or
(f) in confidence, in connection with the enforcement of this
Agreement or rights under this Agreement.
7.4 Third-party Disclosure. Each Party agrees that, to the extent it is
----------------------
permitted to disclose Confidential Information to a Third-party or Affiliate
(other than a Party), it shall do so pursuant to a written non-disclosure
agreement containing terms at least as protective of Confidential Information as
those set forth in this Agreement.
7.5 Remedies. Unauthorized use by a Receiving Party of the Disclosing
--------
Party's Confidential Information will result in irreparable harm to the
Disclosing Party. Therefore, if a Party breaches any of its obligations with
respect to confidentiality and unauthorized use of Confidential Information
hereunder, the Disclosing Party, in addition to any rights and remedies it may
have, shall be entitled to seek equitable, including injunctive, relief to
protect its Confidential Information.
ARTICLE 8.
[INTENTIONALLY OMITTED]
ARTICLE 9.
TERM
9.1 Term. The term ("Term") of this Agreement shall commence on the
----
Effective Date and shall continue in perpetuity unless terminated by written
agreement of the Parties.
9.2 No Termination for Breach.
-------------------------
(a) This Agreement may not be terminated by any Party and, subject to
any modified terms that shall become applicable hereunder in the event of the
happening of specified events or actions, the rights granted, and obligations
imposed, under this Agreement shall continue in full force and effect,
notwithstanding any material breach of any term hereof by any party.
(b) In the event of a breach of any term of this Agreement by a Party
(the "Breaching Party"), the other Party (the "Non-Breaching Party") may bring
--------------- -------------------
any action against the Breaching Party and may seek any and all relief and
remedies, including damages (including monetary, punitive or enhanced damages),
injunctive relief and equitable relief against the
34
<PAGE>
Breaching Party. In the event of an adjudicated material breach by TSI of any
term of this Agreement, a court or other tribunal shall award, and TSI agrees to
pay, all costs, including court costs and attorneys' and expert fees, incurred
by Reuters in bringing and maintaining such action (including any appeals).
ARTICLE 10.
REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
10.1 Warranties and Representations of the Reuters Parties. The Reuters
-----------------------------------------------------
Parties represent and warrant to TSI that: (i) they have the right, power and
authority to enter into this Agreement and to fully perform their obligations
hereunder; and (ii) the making of this Agreement does not violate any agreement
existing between the Reuters Parties and any other Person.
10.2 Warranties and Representations of TSI. TSI represents and warrants
-------------------------------------
to the Reuters Parties that: (i) it has the right, power and authority to enter
into this Agreement and to fully perform its obligations hereunder; (ii) the
making of this Agreement does not violate any agreement existing between TSI and
any Person; (iii) to its knowledge, the TSI Products do not infringe or result
in a misappropriation or other violation of the Intellectual Property Rights of
any Third-party; (iv) the TSI Products provided by TSI to the Reuters Parties
and the exercise by the Reuters Parties of any right granted to it by TSI
hereunder with respect thereto will not infringe or result in a misappropriation
or other violation the Intellectual Property Rights of any Third-party (but
excluding the combination of TSI Products with third party hardware or software
or such infringement or misappropriation that results from any modification by a
Reuters Party to such TSI Product); (v) for ninety (90) days following delivery
of any TSI Product to TFT or Reuters, such TSI Product, under normal use and
service, will substantially conform in all material respects with the functional
descriptions described in the then current user documentation provided by TSI
for such product and will be free from viruses (provided that (1) TSI's
obligation under the foregoing warranty shall be limited solely to repair or
replacement of any such product defects and correction of functionality problems
of which TSI is notified during such ninety (90) day period, with the period
tolled after such notice; (2) a Reuters Party shall give TSI prompt notice of
any alleged defect and shall provide TSI with such reasonable information and
materials as such Reuters Party shall have available in order for TSI to
diagnose and replicate the problem; (3) TSI shall have reasonable time to
review such information and materials and to determine the necessary repair; and
(4) TSI's warranty shall not apply (x) to program defects which have been
previously identified by TSI to the Reuters Parties and for which program
corrections have been submitted to the Reuters Parties, (y) in the event there
has been an alteration or revision to the TSI Product that was not authorized by
TSI, or (z) where the latest TSI Product update or revision has been supplied
but not used); and (vi) will not contain any undisclosed timers, lock-outs,
backdoors or trapdoors or any other means of disabling the product (excluding
flavoring or ticketing mechanisms).
10.3 Year 2000 Warranties TSI represents and warrants to the Reuters
--------------------
Parties that, through July 31, 2000 and subject to the provisions set out below
in this Section 10.3, each TSI
35
<PAGE>
Product shall be Year 2000 Compliant (the "Year 2000 Warranty"). "Year 2000
------------------ ---------
Compliant" shall mean that there will not be a reduction in any material respect
- ---------
in the TSI Product's functionality, as a result of its inability to process date
information accurately before, on or after January 1, 2000 (including leap
years), which is solely attributable to the TSI Product. Where any Other
Materials are used in connection with any TSI Product, TSI will not be in breach
of the Year 2000 Warranty if the failure of the TSI Product to be Year 2000
Compliant is caused by any Other Materials being unable to process date
information accurately before, on or after January 1, 2000 (including leap
years). "Other Materials" means any hardware, firmware, software (including
---------------
databases and operating systems), and other materials, and any data or
information, which are used in connection with the TSI Products and are not part
of the TSI Products, including any other materials, software, data or
information provided by the Reuters Parties or a Third-party licensee or
distributor of the Reuters Parties and used in connection with the TSI Products.
Neither TSI nor any Affiliates, employees, officers or directors, nor any third
party supplier to TSI will be liable to the Reuters Parties or to any third
party for any loss or damage in connection with any breach of the Year 2000
Warranty, except as provided in this Section 10.3. If TSI is in breach of the
Year 2000 Warranty in relation to a TSI Product, the Reuters Parties' exclusive
remedies, and TSI's exclusive obligations are: (a) to require TSI, at TSI's
option, to either repair, replace or provide a workaround for the relevant
product; or (b) if TSI is unable to provide a repair, replacement or workaround
within a reasonable period of time, to release Reuters Parties from the
obligation to pay maintenance fee royalties in respect of that TSI Product
during the period from 1 January 2000 to the date on which the relevant product
becomes Year 2000 Compliant. The Year 2000 Warranty does not apply to any data
or other information provided to TSI by any information provider. Accordingly,
TSI shall not be liable for any loss or damage arising from the fact that any
such data or other information is not Year 2000 Compliant.
10.4 WARRANTY EXCLUSIONS. EXCEPT AS PROVIDED IN SECTIONS 10.2 AND 10.3
-------------------
ABOVE, ALL SOFTWARE, TECHNOLOGY AND INTELLECTUAL PROPERTY LICENSED OR PROVIDED
HEREUNDER, IS LICENSED AND PROVIDED, AS IS, AND WITHOUT WARRANTY OF ANY KIND.
ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WARRANTIES OF TITLE, NON-
INFRINGEMENT, MERCHANTABILITY, UNINTERRUPTED SERVICE OR FITNESS FOR A PARTICULAR
PURPOSE ARE EXPRESSLY DISCLAIMED.
10.5 Indemnification.
---------------
(a) TSI shall defend, indemnify and hold harmless the Reuters Parties
from and against any third-party claim, lawsuit or proceeding, and any debts,
liabilities, losses, cost or expenses relating thereto or arising therefrom,
including reasonable attorneys' fees, to the extent based on a claim that the
TSI Products infringe, result in a misappropriation of or otherwise violate the
Intellectual Property Rights of a Third-party (excluding any claim based on the
combination of the TSI Products with any third party hardware or software, where
the TSI Products would not so infringe, misappropriate or violate absent such
combination, or where such infringement or misappropriation is attributable to
any TIB Technology or Reuters Enhancement and would not have occurred but for
such TIB Technology or Reuters
36
<PAGE>
Enhancement); provided that TSI is promptly notified in writing of such claim
and provided further that TSI shall have the exclusive right to control such
defense and/or settlement, and the Reuters Parties provides reasonable
assistance (at TSI's expense and reasonable request) in the defense of same. In
no event shall the Reuters Parties settle any claim, lawsuit or proceeding
without TSI's prior written approval. The Reuters Parties may, at its own
expense, join in such defense if it so chooses.
(b) In the event of any such claim, lawsuit or proceeding, TSI, at its
sole option and expense, may (1) procure for the Reuters Parties the right to
continue to use the TSI Products that are the subject thereof to the full extent
provided in this Agreement or (2) replace or modify the TSI Products with
software that in all material respects is functionally equivalent. If neither
of the foregoing alternatives is reasonably practical in the reasonable opinion
of TSI, after giving due consideration to all factors including financial
expense, TSI may give notice to the Reuters Parties that all further use or
exploitation of such TSI Product shall be at the sole risk of the Reuters
Parties and the Reuters Parties thereafter will be responsible for any and all
losses, damages, costs and expenses assessed or incurred as a result of such
actual or alleged infringement that accrue on or after the date of such notice.
(c) The foregoing states the entire liability of TSI with respect to
the infringement of any Third-party Intellectual Property Rights.
ARTICLE 11.
LIMITATION OF LIABILITY
EXCEPT AS PROVIDED IN SECTION 6.1(f), IN NO EVENT SHALL A PARTY BE LIABLE
TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
INCLUDING LOST PROFITS, COST OF COVER OR LOST BUSINESS OPPORTUNITIES, ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY EVENTS OR TRANSACTIONS
ARISING BY VIRTUE OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY BREACH
HEREOF AND WHETHER THE CAUSE OF ACTION IS BASED IN CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE
PARTY AGAINST WHOM DAMAGES ARE SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
ARTICLE 12.
MISCELLANEOUS
12.1 Notices. Any notice or reports required or permitted to be given
-------
under this Agreement shall be given in writing and shall be delivered by
personal delivery, telegram, telex, telecopier, facsimile transmission or
registered mail, postage prepaid, return receipt requested, and shall be deemed
given upon personal delivery five (5) days after deposit in the mail or upon
acknowledgment of receipt of electronic transmission. Notices shall be sent to
the Parties as follows or to such other person and address that a Party may
specify in writing;
37
<PAGE>
If to Reuters: If to TSI:
- --------------- ---------
Reuters Limited TIBCO Software, Inc.
85 Fleet Street 3165 Porter Drive
London, England Palo Alto, CA 94304
EC4P 4 AJ Attn: Chief Executive Officer
Attention: General Counsel Tel: (415) 846-5000
Tel: 011-44171-250-1122 Fax: (415) 846-5005
Fax: 011-44171-324-5406
If to TFT:
- ---------
TIBCO Finance Technology, Inc.
3375 Hillview Avenue
Palo Alto, CA 94304
Attn: Chief Executive Officer
Tel: (415) 846-5000
Fax: (415) 846-5005
12.2 Bankruptcy. All rights and licenses granted to a Party under or
----------
pursuant to this Agreement by the other (other than the trademark license
pursuant to Section 2.8) are, and shall otherwise be deemed to be, for purposes
of Section 365(n) of the U.S. Bankruptcy Code (11 U.S.C. 101, et seq.), licenses
to rights of "intellectual property" as defined thereunder. Notwithstanding any
provision contained herein to the contrary, if a party is under any proceeding
under the Bankruptcy Code and the trustee in bankruptcy of such party, or the
party, as a debtor in possession, rightfully elects to reject this Agreement,
the other party may, pursuant to 11 U.S.C. Section 365(n)(1) and (2), retain any
and all rights hereunder granted to it, to the maximum extent permitted by law,
subject to the payments, if any, specified herein.
12.3 Audit. Reuters shall have the right, subject to reasonable limits
-----
and reasonable confidentiality provisions, upon reasonable notice, to enter
TSI's premises during normal business hours provided that such rights be
exercised not more than once per calendar year for the purposes of (i)
inspecting TSI's operations and determining TSI's compliance with the terms of
this Agreement or (ii) auditing TSI's financial records for the sole purpose of
verifying the calculations of the amounts payable to the Reuters Parties
pursuant to Section 2.5. TSI shall cooperate with Reuters during such inspection
or audit and shall make available to Reuters such materials and information as
Reuters shall reasonably request. TSI shall maintain complete and accurate files
and books and records of account with respect to all of its activities hereunder
and all transactions relating to the Licensed Products and Licensed Services.
Records will be maintained for a period of at least three (3) years after the
creation of such records.
12.4 Export Regulation. Neither TSI nor any of its sublicensees or
-----------------
assignees shall export, directly or indirectly, any Technology or information
acquired or licensed under this Agreement or any products utilizing any such
Technology or information to any country for
38
<PAGE>
which the U.S. Government or any agency thereof at the time of export requires
an export license or other government approval without first obtaining such
license or approval.
12.5 Waiver or Delay. Any waiver of any kind or character by a Party of a
---------------
breach of this Agreement must be in writing, shall be effective only to the
extent set forth in such writing, and shall not operate or be construed as a
waiver of any subsequent breach of the other party. No failure of a Party to
insist upon strict compliance by the other with any obligation or provision
hereunder, and no custom or practice of the parties at variance with the terms
hereof, shall constitute a waiver of such Party's right to demand exact
compliance with the terms of this Agreement. Nor shall a Party's delay or
omission in exercising any right, power or remedy upon a breach or default by
the other Party impair any such right, power or remedy. The exercise of any
right or remedy provided by this Agreement shall be without prejudice to the
right to exercise any other right or remedy provided by law or equity.
12.6 Assignment.
----------
(a) TSI may not directly or indirectly assign or transfer this
Agreement or any of its rights, duties or obligations hereunder, except with the
express written consent of Reuters, which consent shall not unreasonably be
withheld. Reuters may, in its sole discretion, assign or transfer this
Agreement, assign its rights and benefits under this Agreement, or delegate its
duties hereunder to a Third-party, in whole or in part. Without limiting the
foregoing, the acquisition by, or the merger of TFT with, an Affiliate of
Reuters shall not in any way affect the rights or obligations of TFT hereunder
and such acquiring or surviving corporation shall succeed to all of TFT's rights
and be bound by the obligations under this Agreement.
(b) In the event of the sale of any Reuters Affiliate, or
substantially all of the assets of such Reuters Affiliate to a Third-party, all
of such Affiliate's rights hereunder shall be transferable to such Third-party
provided that such Third-party is bound by the provisions hereof and Reuters may
grant, or sublicense to such Third-party, a license to all TSI Intellectual
Property rights granted to Reuters hereunder as of the date of such acquisition,
and such grant shall not in any way affect or limit Reuters' rights to such
Intellectual Property Rights hereunder. In the event of any such transfer of a
Reuters Affiliate that is not a Reuters Party, such Third-party shall not be
entitled to any license to Enhancements created after the date of such transfer.
12.7 Sales Tax. The Parties shall reasonably cooperate with one another in
----------
order to minimize sales and use taxes applicable to each of them as a result of
the transactions contemplated hereby, provided that a Party shall not be
required to act in a manner that is disadvantageous to itself.
12.8 Force Majeure. If by reason of labor disputes, strikes, lockouts,
-------------
riots, war, inability to obtain labor or materials, earthquake, fire or other
action of the elements, accidents, governmental restrictions, appropriation or
other cause beyond the control of a Party hereto, either party is unable to
perform in whole or in part its obligations as set forth in this Agreement, then
such party shall be relieved of those obligations to the extent it is so unable
to perform and such inability to perform shall not make such Party liable to the
other Party. Neither Party shall
39
<PAGE>
be liable for any loss, injury, delay or damages suffered or incurred by the
other Party due to the above causes.
12.9 Severability. The provisions of this Agreement are severable and if
------------
any one or more such provisions shall be determined to be invalid, illegal or
unenforceable, in whole or in part, the validity, legality and enforceability of
any of the remaining provisions or portions thereof shall not in any way be
affected or impaired thereby and shall nevertheless be binding between the
parties hereto. Notwithstanding the foregoing, if any Section or provision
respecting limitations on the scope of any license grants to TSI with respect to
any Reuters Intellectual Property Rights is declared void or unenforceable, then
the corresponding grant of such license or rights to TSI shall also be void.
12.10 Headings. The Section and article headings and captions of this
--------
Agreement are included merely for convenience of reference. They are not to be
considered part of, or to be used in interpreting, this Agreement and in no way
limit or affect any of the contents of this Agreement or its provisions.
12.11 Governing Law. This Agreement shall be constructed in accordance
-------------
with, and all disputes hereunder shall be governed by, the laws of the State of
New York (without regard to that State's principles of choice of laws). The
parties exclude in its entirety the application to this Agreement of the United
Nations Convention on Contracts for the International Sale of Goods. Any
dispute arising out of this Agreement shall be brought in, and the parties
consent to personal and exclusive jurisdiction of a venue in, the State and
federal courts within New York City, New York.
12.12 Relationship of the Parties. Nothing contained in this Agreement,
---------------------------
as such, shall be construed as creating any agency, partnership, or other form
of joint enterprise between the Reuters Parties and TSI. The relationship
between the Reuters Parties and TSI shall at all times be that of independent
contractors with respect to the matters contemplated by this Agreement. Neither
the Reuters Parties nor TSI shall have authority to contract for or bind the
other in any manner whatsoever. This Agreement confers no rights upon a Party
except those expressly granted herein.
12.13 Entire Agreement. This Agreement is the complete, entire, final
----------------
and exclusive statement of the terms and conditions of the agreement between the
parties. This Agreement supersedes, and the terms of this Agreement govern, any
prior agreements, term sheets or letters of intent between the parties with
respect to the subject matter hereof, including without limitation the Existing
License Agreement, which the Parties hereby agree to terminate effective on the
Effective Date. This Agreement may not be modified except in a writing executed
by duly authorized representatives of the Parties. In the event of any conflict
between any terms of this Agreement and the Agreement of Organization, the terms
of this Agreement shall control.
12.14 Counterparts. This Agreement may be executed in counterparts, each
------------
of which shall be deemed an original, but all of which together shall constitute
one and the same instruments.
40
<PAGE>
12.15 Non-Solicitation. TSI and the Reuters Parties shall agree not to
----------------
solicit the employees of the other party or parties for the two-year period
commencing on the Effective Date.
12.16 Joint Marketing Activities. TSI and TFT may from time to time
--------------------------
agree on joint marketing activities. Neither party shall have any financial
obligation to the other in relation to marketing or advertising except as may be
agreed in writing in advance.
12.17 Publicity. The parties shall maintain the confidentiality of this
---------
Agreement and not disclose or discuss its contents or the matters contemplated
herein other than with affiliates and advisors that are subject to
confidentiality restrictions or duties without, in the case of the Reuters
Parties, the written consent of TSI and, in the case of TSI, the written consent
of Reuters, subject in either case to applicable law. No press release or
similar public communication regarding this Agreement or the matters
contemplated herein shall be made without the prior written consent of both
parties.
12.18 Cedel Contract. The assignment, effective January 1, 1998 of the
--------------
Software License and Development Agreement dated January 1, 1994, as amended
(the "Cedel Contract"), with Cedel Bank is hereby ratified by the Parties, and
TSI shall have the right in the future to continue such contractual relationship
with Cedel Bank, Cedel Global Services, or their Affiliates, or their successors
and assigns (the "Cedel Parties"), and to enter into amendments and additional
similar agreements with the Cedel Parties; provided, however, to the extent that
TSI is requested to provide products or services not related to Cedel's
"Strategic Businesses" (as defined in the agreement with Cedel Global Services
dated May 11, 1999) for Deutsche Borsa in connection with the merger of Cedel
and Deutsche Borsa, TSI shall, to the extent permitted by the terms of that
agreement, offer TFT the first right to provide such products or services.
12.19 Subcontractors. Any Party shall have the right to appoint and use
--------------
third party subcontractors with respect to performance of its obligations
hereunder, provided that such Party remains responsible for such subcontractors'
performance hereunder.
12.20 Authority. Notwithstanding that an obligation of TSI is expressly
---------
stated as being to either or both of Reuters of TFT, the satisfaction or
performance by TSI of any such obligation to either Reuters or TFT shall be
deemed to satisfy all such obligations of TSI to both Reuters and TFT and as
between Reuters and TFT, Reuters shall be deemed to have the authority to
provide all consents and approvals, and otherwise act on behalf of and bind, TFT
with respect to any issue or dispute arising out of or related to this Agreement
or the making or interpretation of this Agreement. In addition, Reuters and TFT
shall be jointly and severally liable to TSI for either of Reuters or TFT's
breach of any provision of this Agreement.
41
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their respective duly authorized officers or representatives as of the
date first above written.
REUTERS LIMITED TIBCO SOFTWARE, INC.
By:_____________________________ By:__________________________
Name:___________________________ Name:________________________
Title:__________________________ Title:_______________________
TIBCO FINANCE TECHNOLOGY, INC.
By:_____________________________
Name:___________________________
Title:__________________________
42
<PAGE>
EXHIBIT 10.4
------------
TIBCO SOFTWARE INC.
1996 STOCK OPTION PLAN
(as amended and restated effective as of the date
of obtaining stockholder approval in May 1999)
1. Purposes of the Plan. The purposes of this 1996 Stock Option Plan are:
--------------------
. to attract and retain the best available personnel for positions of
substantial responsibility,
. to provide additional incentive to Employees and Consultants, and
. to promote the success of the Company's business.
Options granted under the Plan may be Incentive Stock Options or
Nonstatutory Stock Options, as determined by the Administrator at the time of
grant. In addition, the Plan provides for the grant of Rights to all Eligible
Employees to participate in a salary deferral Employee Stock Purchase Program
intended to qualify as a plan under Section 423 of the Code.
2. Definitions. As used herein, the following definitions shall apply:
-----------
(a) "Administrator" means the Compensation Committee that shall be
-------------
administering the Plan, in accordance with Section 4 of the Plan.
(b) "Applicable Laws" means the requirements relating to the
---------------
administration of stock option plans under U. S. state corporate laws, U.S.
federal and state securities laws, the Code, any stock exchange or quotation
system on which the Common Stock is listed or quoted and the applicable laws
of any foreign country or jurisdiction where Options are, or will be, granted
under the Plan.
(c) "Board" means the Board of Directors of the Company.
-----
(d) "Code" means the Internal Revenue Code of 1986, as amended.
----
(e) "Common Stock" means the common stock of the Company.
------------
(f) "Company" means TIBCO Software Inc., a Delaware corporation, and for
-------
purposes of the Employee Stock Purchase Program shall also include any
Designated Subsidiary of the Company.
<PAGE>
(g) "Compensation" shall mean all base straight time gross earnings and
------------
commissions, but exclusive of payments for overtime, shift premium, incentive
compensation, incentive payments, bonuses and other compensation.
(h) "Compensation Committee" means a compensation committee appointed
----------------------
by the Board in accordance with Section 4 of the Plan.
(i) "Consultant" means any person, including an advisor, engaged by the
----------
Company or a Parent or Subsidiary to render services to such entity.
(j) "Designated Subsidiary" shall mean any Subsidiary which has been
---------------------
designated by the Compensation Committee from time to time in its sole
discretion as eligible to participate in the Employee Stock Purchase Program.
(k) "Director" means a member of the Board.
--------
(l) "Disability" means total and permanent disability as defined in
----------
Section 22(e)(3) of the Code.
(m) "Discretionary Options" means Incentive Stock Options and
---------------------
Nonstatutory Stock Options.
(n) "Eligible Employee" shall mean any individual who is an employee of
-----------------
the Company for tax purposes whose customary employment with the Company is at
least twenty (20) hours per week and more than five (5) months in any calendar
year. For purposes of the Employee Stock Purchase Program, the employment
relationship shall be treated as continuing intact while the individual is on
sick leave or other leave of absence approved by the Company. Where the period
of leave exceeds 90 days and the individual's right to reemployment is not
guaranteed either by statute or by contract, the employment relationship shall
be deemed to have terminated on the 91st day of such leave.
(o) "Employee" means any person, including Officers and Directors,
--------
employed by the Company or any Parent or Subsidiary of the Company. A Service
Provider shall not cease to be an Employee in the case of (i) any leave of
absence approved by the Company or (ii) transfers between locations of the
Company or between the Company, its Parent, any Subsidiary, or any successor.
For purposes of Incentive Stock Options, no such leave may exceed ninety days,
unless reemployment upon expiration of such leave is guaranteed by statute or
contract. If reemployment upon expiration of a leave of absence approved by
the Company is not so guaranteed, on the 181st day of such leave any Incentive
Stock Option held by the Optionee shall cease to be treated as an Incentive
Stock Option and shall be treated for tax purposes as a Nonstatutory Stock
Option. Neither service as a Director nor payment of a director's fee by the
Company shall be sufficient to constitute "employment" by the Company.
Notwithstanding the foregoing, for purposes of the Employee Stock
Purchase Program, "Employee" shall mean Eligible Employee.
2
<PAGE>
(p) "Employee Stock Purchase Program" means the wage deferral program to
-------------------------------
purchase Common Stock, intended to qualify under Section 423 of the Code, as
set forth in Section 11 of the Plan.
(q) "Enrollment Date" shall mean the first Trading Day of each Offering
---------------
Period.
(r) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
------------
(s) "Exercise Date" shall mean the last Trading Day of each Purchase
-------------
Period.
(t) "Fair Market Value" means, as of any date, the value of Common Stock
-----------------
determined as follows:
(i) If the Common Stock is listed on any established stock exchange
or a national market system, including without limitation the Nasdaq National
Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair
Market Value shall be the closing sales price for such stock (or the closing
bid, if no sales were reported) as quoted on such exchange or system on the
date of determination, as reported in The Wall Street Journal or such other
source as the Administrator deems reliable;
(ii) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, the Fair Market Value
of a Share of Common Stock shall be the mean between the high bid and low
asked prices for the Common Stock on the date of determination, as reported in
The Wall Street Journal or such other source as the Administrator deems
reliable;
(iii) In the absence of an established market for the Common Stock,
the Fair Market Value shall be determined in good faith by the Administrator;
or
(iv) For purposes of the Enrollment Date of the first Offering Period
under the Employee Stock Purchase Program, the Fair Market Value shall be the
initial price to the public as set forth in the final prospectus included within
the registration statement on Form S-1 filed with the Securities and Exchange
Commission for the initial public offering of the Company's Common Stock (the
"Registration Statement").
(u) "Incentive Stock Option" means an Option intended to qualify as an
----------------------
incentive stock option within the meaning of Section 422 of the Code and the
regulations promulgated thereunder.
(v) "IPO Effective Date" means the date upon which the Securities and
------------------
Exchange Commission declares the initial public offering of the Company's common
stock as effective.
(w) "Nonstatutory Stock Option" means an Option not intended to
-------------------------
qualify as an Incentive Stock Option.
3
<PAGE>
(x) "Notice of Grant" means a written or electronic notice
---------------
evidencing certain terms and conditions of an individual Option grant. The
Notice of Grant is part of the Option Agreement.
(y) "Offering Periods" shall mean the periods of approximately twenty-
----------------
four (24) months during which an option granted pursuant to the Employee Stock
Purchase Program may be exercised, commencing on the first Trading Day on or
after January 1 and July 1 of each year and terminating on the last Trading
Day in the periods ending twenty-four months later; provided, however, that
the first Offering Period under the Employee Stock Purchase Program shall
commence with the IPO Effective Date and end on the last Trading Day on or
before June 30, 2001. The duration and timing of Offering Periods may be
changed pursuant to the Employee Stock Purchase Program.
(z) "Offering Date" means the first day of each Offering Period of
-------------
the Employee Stock Purchase Program.
(aa) "Officer" means a person who is an officer of the Company within
-------
the meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
(bb) "Option" means a stock option granted pursuant to the Plan.
------
(cc) "Option Agreement" means an agreement between the Company and an
----------------
Optionee evidencing the terms and conditions of an individual Option grant.
The Option Agreement is subject to the terms and conditions of the Plan.
(dd) "Optioned Stock" means the Common Stock subject to an Option.
--------------
(ee) "Optionee" means the holder of an outstanding Option.
--------
(ff) "Parent" means a "parent corporation," whether now or hereafter
------
existing, as defined in Section 424(e) of the Code.
(gg) "Plan" means this 1996 Stock Option Plan.
----
(hh) "Program" means the Employee Stock Purchase Program.
-------
(ii) "Purchase Period" shall mean the approximately six month period
---------------
commencing after one Exercise Date and ending with the next Exercise Date,
except that the first Purchase Period of any Offering Period shall commence on
the Enrollment Date and end with the next Exercise Date. The first Purchase
Period under the Program shall commence on the IPO Effective Date and end on
the last Trading Day on or before December 31, 1999. The second Purchase
Period shall commence on the first Trading Day thereafter.
(jj) "Purchase Price" shall mean 85% of the Fair Market Value of a
--------------
share of Common Stock on the Enrollment Date or on the Exercise Date,
whichever is lower; provided
4
<PAGE>
however, that the Purchase Price may be adjusted by the Compensation Committee
pursuant to Section 13.
(kk) "Right" means the right to purchase Shares pursuant to the
-----
Employee Stock Purchase Program.
(ll) "Rule 16b-3" means Rule 16b-3 of the Exchange Act or any
----------
successor to Rule 16b-3, as in effect when discretion is being exercised with
respect to the Plan.
(mm) "Section 16(b) " means Section 16(b) of the Exchange Act.
-------------
(nn) "Service Provider" means an Employee or Consultant.
----------------
(oo) "Share" means a share of the Common Stock, as adjusted in
-----
accordance with Section 13 of the Plan.
(pp) "Subsidiary" means a "subsidiary corporation", whether now or
------------
hereafter existing, as defined in Section 424(f) of the Code.
(qq) " Trading Day" shall mean a day on which national stock
------------
exchanges and the Nasdaq System are open for trading.
3. Stock Subject to the Plan. Subject to the provisions of Section 13 of
-------------------------
the Plan, the maximum aggregate number of Shares which may be optioned and sold
under the Plan is 30,451,636 Shares, plus an annual increase to be added on the
first day of each fiscal year (beginning in 2000) equal to the lesser of (i)
10,000,000 Shares, (ii) 3.5% of the Company's outstanding Shares on such date or
(iii) a lesser amount determined by the Board. The Shares may be authorized,
but unissued, or reacquired Common Stock.
If an Option expires or becomes unexercisable without having been
exercised in full, or is surrendered pursuant to an Option Exchange Program, the
unpurchased Shares which were subject thereto shall become available for future
grant or sale under the Plan (unless the Plan has terminated); provided,
--------
however, that Shares that have actually been issued under the Plan, upon
exercise of an Option, shall not be returned to the Plan and shall not become
available for future distribution under the Plan, except that if unvested Shares
are repurchased by the Company at their original purchase price, such shares
shall become available for future grant under the Plan.
4. Administration of the Plan.
--------------------------
(a) Procedure.
---------
(i) Multiple Administrative Bodies. The Plan may be administered
------------------------------
by different Compensation Committees with respect to different groups of Service
Providers.
5
<PAGE>
(ii) Section 162(m). To the extent that the Administrator
--------------
determines it to be desirable to qualify Options granted hereunder as
"performance-based compensation" within the meaning of Section 162(m) of the
Code, the Plan shall be administered by a Compensation Committee of two or
more "outside directors" within the meaning of Section 162(m) of the Code.
(iii) Rule 16b-3. To the extent desirable to qualify transactions
----------
hereunder as exempt under Rule 16b-3, the transactions contemplated hereunder
shall be structured to satisfy the requirements for exemption under Rule 16b-
3.
(iv) Other Administration. Other than as provided above, the Plan
--------------------
shall be administered by the Compensation Committee, which shall be
constituted to satisfy Applicable Laws.
(b) Powers of the Administrator. Subject to the provisions of the Plan
---------------------------
the Administrator shall have the authority, in its discretion:
(i) to determine the Fair Market Value;
(ii) to select the Service Providers to whom Options may be granted
hereunder;
(iii) to determine the number of shares of Common Stock to be
covered by each Option granted hereunder;
(iv) to approve forms of agreement for use under the Plan;
(v) to determine the terms and conditions, not inconsistent with
the terms of the Plan, of any Option granted hereunder. Such terms and
conditions include, but are not limited to, the exercise price, the time or
times when Options may be exercised (which may be based on performance
criteria), any vesting acceleration or waiver of forfeiture restrictions, and
any restriction or limitation regarding any Option or the shares of Common
Stock relating thereto, based in each case on such factors as the
Administrator, in its sole discretion, shall determine;
(vi) to construe and interpret the terms of the Plan and awards
granted pursuant to the Plan;
(vii) to reduce the exercise price of any Option to the then
current Fair Market Value if the Fair Market Value of the Common Stock covered
by such Option has declined since the date the Option was granted;
(viii) to provide for the early exercise of Options for the
purchase of unvested Shares, subject to such terms and conditions as the
Administrator may determine;
6
<PAGE>
(ix) to prescribe, amend and rescind rules and regulations relating
to the Plan, including rules and regulations relating to sub-plans established
for the purpose of qualifying for preferred tax treatment under foreign tax
laws;
(x) to modify or amend each Option (subject to Section 15(c) of the
Plan), including the discretionary authority to extend the post-termination
exercisability period of Options longer than is otherwise provided for in the
Plan;
(xi) to allow Optionees to satisfy withholding tax obligations by
electing to have the Company withhold from the Shares to be issued upon
exercise of an Option that number of Shares having a Fair Market Value equal
to the amount required to be withheld. The Fair Market Value of the Shares to
be withheld shall be determined on the date that the amount of tax to be
withheld is to be determined. All elections by an Optionee to have Shares
withheld for this purpose shall be made in such form and under such conditions
as the Administrator may deem necessary or advisable;
(xii) to authorize any person to execute on behalf of the Company
any instrument required to effect the grant of an Option previously granted by
the Administrator;
(xiii) to make all other determinations deemed necessary or
advisable for administering the Plan;
(xv) with respect to the Employee Stock Purchase Program, to
construe, interpret and apply the terms of the Employee Stock Purchase
Program, to determine eligibility and to adjudicate all disputed claims filed
under the Employee Stock Purchase Program. Every finding, decision and
determination made by the Compensation Committee shall, to the full extent
permitted by law, be final and binding upon all parties.
(c) Effect of Administrator's Decision. The Administrator's decisions,
----------------------------------
determinations and interpretations shall be final and binding on all Optionees
and any other holders of Options.
5. Eligibility.
-----------
(a) Discretionary Stock Options. Nonstatutory Stock Options may be
---------------------------
granted to Service Providers. Incentive Stock Options may be granted only to
Employees.
(b) Employee Stock Purchase Program. Any Eligible Employee who
-------------------------------
shall be employed by the Company on or prior to an Offering Date shall be
eligible to participate in the Offering Period to which such Offering Date
relates, subject to the limitations imposed by Section 423(b) of the Code.
7
<PAGE>
6. Limitations.
-----------
(a) Each Option shall be designated in the Option Agreement as either
an Incentive Stock Option or a Nonstatutory Stock Option. However,
notwithstanding such designation, to the extent that the aggregate Fair Market
Value of the Shares with respect to which Incentive Stock Options are
exercisable for the first time by the Optionee during any calendar year (under
all plans of the Company and any Parent or Subsidiary) exceeds $100,000, such
Options shall be treated as Nonstatutory Stock Options. For purposes of this
Section 6(a), Incentive Stock Options shall be taken into account in the order
in which they were granted. The Fair Market Value of the Shares shall be
determined as of the time the Option with respect to such Shares is granted.
(b) Neither the Plan nor any Option shall confer upon an Optionee any
right with respect to continuing the Optionee's relationship as a Service
Provider with the Company, nor shall they interfere in any way with the
Optionee's right or the Company's right to terminate such relationship at any
time, with or without cause.
(c) The following limitations shall apply to grants of Options:
(i) No Service Provider shall be granted, in any fiscal year of
the Company, Options to purchase more than 1,500,000 Shares.
(ii) In connection with his or her initial service, a Service
Provider may be granted Options to purchase up to an additional 1,500,000
Shares which shall not count against the limit set forth in subsection (i)
above.
(iii) The foregoing limitations shall be adjusted proportionately
in connection with any change in the Company's capitalization as described in
Section 13.
(iv) If an Option is cancelled in the same fiscal year of the
Company in which it was granted (other than in connection with a transaction
described in Section 13), the cancelled Option will be counted against the
limits set forth in subsections (i) and (ii) above. For this purpose, if the
exercise price of an Option is reduced, the transaction will be treated as a
cancellation of the Option and the grant of a new Option.
7. Term of Plan. Subject to Section 19 of the Plan, the amendment and
------------
restatement of the Plan shall become effective upon the date of stockholder
approval of the Plan in May 1999; provided, however, that amendments that would
cause the Plan or Options granted hereunder to fail to comply with applicable
California "blue sky" securities laws shall not be effective until the IPO
Effective Date. It shall continue in effect for a term of ten (10) years from
the date of obtaining stockholder approval of the Plan in May, 1999, unless
terminated earlier under Section 15 of the Plan.
8. Term of Option. The term of each Option shall be stated in the Option
--------------
Agreement. In the case of an Incentive Stock Option, the term shall be ten (10)
years from the date of grant or such shorter term as may be provided in the
Option Agreement. Moreover, in the case of an
8
<PAGE>
Incentive Stock Option granted to an Optionee who, at the time the Incentive
Stock Option is granted, owns stock representing more than ten percent (10%)
of the total combined voting power of all classes of stock of the Company or
any Parent or Subsidiary, the term of the Incentive Stock Option shall be five
(5) years from the date of grant or such shorter term as may be provided in
the Option Agreement.
9. Option Exercise Price and Consideration.
---------------------------------------
(a) Exercise Price. The per share exercise price for the Shares to
--------------
be issued pursuant to exercise of an Option shall be determined by the
Administrator, subject to the following:
(i) In the case of an Incentive Stock Option
A. granted to an Employee who, at the time the Incentive
Stock Option is granted, owns stock representing more than ten percent (10%)
of the voting power of all classes of stock of the Company or any Parent or
Subsidiary, the per Share exercise price shall be no less than 110% of the
Fair Market Value per Share on the date of grant.
B. granted to any Employee other than an Employee
described in paragraph (A) immediately above, the per Share exercise price
shall be no less than 100% of the Fair Market Value per Share on the date of
grant.
(ii) In the case of a Nonstatutory Stock Option, the per Share
exercise price shall be no less than 100% of the Fair Market Value per Share on
the date of grant.
(iii) Notwithstanding the foregoing, Options may be granted with
a per Share exercise price of less than 100% of the Fair Market Value per Share
on the date of grant pursuant to a merger or other corporate transaction.
(b) Waiting Period and Exercise Dates. At the time an Option is
---------------------------------
granted, the Administrator shall fix the period within which the Option may be
exercised and shall determine any conditions which must be satisfied before the
Option may be exercised.
(c) Form of Consideration. The Administrator shall determine the
---------------------
acceptable form of consideration for exercising an Option, including the method
of payment. In the case of an Incentive Stock Option, the Administrator shall
determine the acceptable form of consideration at the time of grant. Such
consideration may consist entirely of:
(i) cash;
(ii) check;
(iii) promissory note;
9
<PAGE>
(iv) other Shares which (A) in the case of Shares acquired upon
exercise of an option, have been owned by the Optionee for more than six months
on the date of surrender, and (B) have a Fair Market Value on the date of
surrender equal to the aggregate exercise price of the Shares as to which said
Option shall be exercised;
(v) consideration received by the Company under a cashless
exercise program implemented by the Company in connection with the Plan;
(vi) any combination of the foregoing methods of payment; or
(vii) such other consideration and method of payment for the
issuance of Shares to the extent permitted by Applicable Laws.
10. Exercise of Option.
------------------
(a) Procedure for Exercise; Rights as a Shareholder. Any Option
-----------------------------------------------
granted hereunder shall be exercisable according to the terms of the Plan and at
such times and under such conditions as determined by the Administrator and set
forth in the Option Agreement. Unless the Administrator provides otherwise,
vesting of Options granted hereunder shall be tolled during any unpaid leave of
absence. An Option may not be exercised for a fraction of a Share.
An Option shall be deemed exercised when the Company receives: (i)
written or electronic notice of exercise (in accordance with the Option
Agreement) from the person entitled to exercise the Option, and (ii) full
payment for the Shares with respect to which the Option is exercised. Full
payment may consist of any consideration and method of payment authorized by the
Administrator and permitted by the Option Agreement and the Plan. Shares issued
upon exercise of an Option shall be issued in the name of the Optionee or, if
requested by the Optionee, in the name of the Optionee and his or her spouse.
Until the Shares are issued (as evidenced by the appropriate entry on the books
of the Company or of a duly authorized transfer agent of the Company), no right
to vote or receive dividends or any other rights as a shareholder shall exist
with respect to the Optioned Stock, notwithstanding the exercise of the Option.
The Company shall issue (or cause to be issued) such Shares promptly after the
Option is exercised. No adjustment will be made for a dividend or other right
for which the record date is prior to the date the Shares are issued, except as
provided in Section 13 of the Plan.
Exercising an Option in any manner shall decrease the number of Shares
thereafter available, both for purposes of the Plan and for sale under the
Option, by the number of Shares as to which the Option is exercised.
(b) Termination of Relationship as a Service Provider. If an
----------------------------------------------
Optionee ceases to be a Service Provider, other than upon the Optionee's death
or Disability, the Optionee may exercise his or her Option within such period of
time as is specified in the Option Agreement to the extent that the Option is
vested on the date of termination (but in no event later than the expiration of
the term of such Option as set forth in the Option Agreement). In the absence of
a specified time in the
10
<PAGE>
Option Agreement, the Option shall remain exercisable for three (3) months
following the Optionee's termination. In the case of an Incentive Stock Option,
such period of time for exercise shall not exceed three (3) months from the date
of termination. If, on the date of termination, the Optionee is not vested as to
his or her entire Option, the Shares covered by the unvested portion of the
Option shall revert to the Plan. If, after termination, the Optionee does not
exercise his or her Option within the time specified by the Administrator, the
Option shall terminate, and the Shares covered by such Option shall revert to
the Plan.
Notwithstanding the above, in the event of an Optionee's change in
status from Consultant to Employee or Employee to Consultant, an Optionee's
status as a Service Provider shall not automatically terminate solely as a
result of such change in status. However, in such event, an Incentive Stock
Option held by the Optionee shall cease to be treated as an Incentive Stock
Option and shall be treated for tax purposes as a Nonstatutory Stock Option
three months and one day following such change of status.
(c) Disability of Optionee. If an Optionee ceases to be a Service
----------------------
Provider as a result of the Optionee's Disability, the Optionee may exercise his
or her Option within such period of time as is specified in the Option Agreement
to the extent the Option is vested on the date of termination (but in no event
later than the expiration of the term of such Option as set forth in the Option
Agreement). In the absence of a specified time in the Option Agreement, the
Option shall remain exercisable for twelve (12) months following the Optionee's
termination. If, on the date of termination, the Optionee is not vested as to
his or her entire Option, the Shares covered by the unvested portion of the
Option shall revert to the Plan. If, after termination, the Optionee does not
exercise his or her Option within the time specified herein, the Option shall
terminate, and the Shares covered by such Option shall revert to the Plan.
(d) Death of Optionee. If an Optionee dies while a Service
-----------------
Provider, the Option may be exercised within such period of time as is specified
in the Option Agreement (but in no event later than the expiration of the term
of such Option as set forth in the Notice of Grant), by the Optionee's estate or
by a person who acquires the right to exercise the Option by bequest or
inheritance, but only to the extent that the Option is vested on the date of
death. In the absence of a specified time in the Option Agreement, the Option
shall remain exercisable for twelve (12) months following the Optionee's
termination. If, at the time of death, the Optionee is not vested as to his or
her entire Option, the Shares covered by the unvested portion of the Option
shall immediately revert to the Plan. The Option may be exercised by the
executor or administrator of the Optionee's estate or, if none, by the person(s)
entitled to exercise the Option under the Optionee's will or the laws of descent
or distribution. If the Option is not so exercised within the time specified
herein, the Option shall terminate, and the Shares covered by such Option shall
revert to the Plan.
(e) Buyout Provisions. The Administrator may at any time offer to
-----------------
buy out for a payment in cash or Shares an Option previously granted based on
such terms and conditions as the Administrator shall establish and communicate
to the Optionee at the time that such offer is made.
11
<PAGE>
11. Employee Stock Purchase Program.
-------------------------------
(a) Eligibility.
-----------
(i) Any Employee who shall be employed by the Company on a
given Enrollment Date shall be eligible to participate in the Program.
(ii) Any provisions of the Program to the contrary
notwithstanding, no Employee shall be granted an option under the Program (i) to
the extent that, immediately after the grant, such Employee (or any other person
whose stock would be attributed to such Employee pursuant to Section 424(d) of
the Code) would own capital stock of the Company and/or hold outstanding options
to purchase such stock possessing five percent (5%) or more of the total
combined voting power or value of all classes of the capital stock of the
Company or of any Subsidiary, or (ii) to the extent that his or her rights to
purchase stock under all employee stock purchase plans of the Company and its
subsidiaries accrues at a rate which exceeds Twenty-Five Thousand Dollars
($25,000) worth of stock (determined at the fair market value of the shares at
the time such option is granted) for each calendar year in which such option is
outstanding at any time.
(b) Offering Periods. The Program shall be implemented by
----------------
consecutive, overlapping Offering Periods with a new Offering Period commencing
on the first Trading Day on or after January 1 and July 1 each year, or on such
other date as the Compensation Committee shall determine, and continuing
thereafter until terminated in accordance with Section 20 hereof; provided,
however, that the first Offering Period under the Program shall commence on the
IPO Effective Date and end on the last Trading Day on or before June 30, 2001.
The Compensation Committee shall have the power to change the duration of
Offering Periods (including the commencement dates thereof) with respect to
future offerings without shareholder approval if such change is announced at
least five (5) days prior to the scheduled beginning of the first Offering
Period to be affected thereafter.
(c) Participation.
-------------
(i) An eligible Employee may become a participant in the
Program by completing a subscription agreement authorizing payroll deductions in
the form of Exhibit A to this Plan and filing it with the Company's payroll
office prior to the applicable Enrollment Date.
(ii) Payroll deductions for a participant shall commence on
the first payroll following the Enrollment Date and shall end on the last
payroll in the Offering Period to which such authorization is applicable, unless
sooner terminated by the participant as provided herein.
(d) Payroll Deductions.
------------------
(i) At the time a participant files his or her subscription
agreement, he or she shall elect to have payroll deductions made on each pay day
during the Offering Period in an amount not exceeding ten-percent (10%) of the
Compensation which he or she receives on each pay day during the Offering
Period.
12
<PAGE>
(ii) All payroll deductions made for a participant shall be
credited to his or her account under the Program and shall be withheld in whole
percentages only. A participant may not make any additional payments into such
account.
(iii) A participant may discontinue his or her participation in
the Program as provided herein, or may increase or decrease the rate of his or
her payroll deductions during the Offering Period by completing or filing with
the Company a new subscription agreement authorizing a change in payroll
deduction rate. The Compensation Committee may, in its discretion, limit the
number of participation rate changes during any Offering Period. The change in
rate shall be effective with the first full payroll period following five (5)
business days after the Company's receipt of the new subscription agreement
unless the Company elects to process a given change in participation more
quickly. A participant's subscription agreement shall remain in effect for
successive Offering Periods unless terminated as provided herein.
(iv) Notwithstanding the foregoing, to the extent necessary to
comply with Section 423(b)(8) of the Code and Section 11(a)(ii) hereof, a
participant's payroll deductions may be decreased to zero percent (0%) at any
time during a Purchase Period. Payroll deductions shall recommence at the rate
provided in such participant's subscription agreement at the beginning of the
first Purchase Period which is scheduled to end in the following calendar year,
unless terminated by the participant as provided herein.
(v) At the time the option is exercised, in whole or in part,
or at the time some or all of the Company's Common Stock issued under the
Program is disposed of, the participant must make adequate provision for the
Company's federal, state, or other tax withholding obligations, if any, which
arise upon the exercise of the option or the disposition of the Common Stock. At
any time, the Company may, but shall not be obligated to, withhold from the
participant's compensation the amount necessary for the Company to meet
applicable withholding obligations, including any withholding required to make
available to the Company any tax deductions or benefits attributable to sale or
early disposition of Common Stock by the Employee.
(e) Grant of Right. On the Enrollment Date of each Offering Period,
--------------
each eligible Employee participating in such Offering Period shall be granted an
option to purchase on each Exercise Date during such Offering Period (at the
applicable Purchase Price) up to a number of shares of the Company's Common
Stock determined by dividing such Employee's payroll deductions accumulated
prior to such Exercise Date and retained in the Participant's account as of the
Exercise Date by the applicable Purchase Price; provided that in no event shall
an Employee be permitted to purchase during each Purchase Period more than 2,000
shares of the Company's Common Stock (subject to any adjustment pursuant to
Section 13), and provided further that such purchase shall be subject to the
limitations set forth herein. The Compensation Committee may, for future
Offering Periods, increase or decrease, in its absolute discretion, the maximum
number of shares of the Company's Common Stock an Employee may purchase during
each Purchase Period of such Offering Period. Exercise of the option shall occur
as provided herein, unless the participant has withdrawn as provided herein. The
option shall expire on the last day of the Offering Period.
13
<PAGE>
(f) Exercise of Right.
-----------------
(i) Unless a participant withdraws from the Program as
provided in herein, his or her option for the purchase of shares shall be
exercised automatically on the Exercise Date, and the maximum number of full
shares subject to option shall be purchased for such participant at the
applicable Purchase Price with the accumulated payroll deductions in his or her
account. No fractional shares shall be purchased; any payroll deductions
accumulated in a participant's account which are not sufficient to purchase a
full share shall be retained in the participant's account for the subsequent
Purchase Period or Offering Period, subject to earlier withdrawal by the
participant as provided herein. Any other monies left over in a participant's
account after the Exercise Date shall be returned to the participant. During a
participant's lifetime, a participant's option to purchase shares hereunder is
exercisable only by him or her.
(ii) If the Compensation Committee determines that, on a given
Exercise Date, the number of shares with respect to which options are to be
exercised may exceed (i) the number of shares of Common Stock that were
available for sale under the Plan on the Enrollment Date of the applicable
Offering Period, or (ii) the number of shares available for sale under the Plan
on such Exercise Date, the Compensation Committee may in its sole discretion (x)
provide that the Company shall make a pro rata allocation of the shares of
Common Stock available for purchase on such Enrollment Date or Exercise Date, as
applicable, in as uniform a manner as shall be practicable and as it shall
determine in its sole discretion to be equitable among all participants
exercising options to purchase Common Stock on such Exercise Date, and continue
all Offering Periods then in effect, or (y) provide that the Company shall make
a pro rata allocation of the shares available for purchase on such Enrollment
Date or Exercise Date, as applicable, in as uniform a manner as shall be
practicable and as it shall determine in its sole discretion to be equitable
among all participants exercising options to purchase Common Stock on such
Exercise Date, and terminate any or all Offering Periods then in effect as
provided herein. The Company may make pro rata allocation of the shares
available on the Enrollment Date of any applicable Offering Period pursuant to
the preceding sentence, notwithstanding any authorization of additional shares
for issuance under the Program by the Company's shareholders subsequent to such
Enrollment Date.
(g) Delivery. As promptly as practicable after each Exercise Date
--------
on which a purchase of shares occurs, the Company shall arrange the delivery to
each participant, as appropriate, of a certificate representing the shares
purchased upon exercise of his or her option.
(h) Automatic Transfer to Low Price Offering Period. To the extent
-----------------------------------------------
permitted by any applicable laws, regulations, or stock exchange rules if the
Fair Market Value of the Common Stock on any Exercise Date in an Offering Period
is lower than the Fair Market Value of the Common Stock on the Enrollment Date
of such Offering Period, then all participants in such Offering Period shall be
automatically withdrawn from such Offering Period immediately after the exercise
of their Right on such Exercise Date and automatically re-enrolled in the
immediately following Offering Period as of the first day thereof.
(i) Withdrawal.
----------
14
<PAGE>
(i) A participant may withdraw all but not less than all the
payroll deductions credited to his or her account and not yet used to exercise
his or her Right under the Program at any time by giving written notice to the
Company in the form of Exhibit B to this Program. All of the participant's
payroll deductions credited to his or her account shall be paid to such
participant promptly after receipt of notice of withdrawal and such
participant's Right for the Offering Period shall be automatically terminated,
and no further payroll deductions for the purchase of shares shall be made for
such Offering Period. If a participant withdraws from an Offering Period,
payroll deductions shall not resume at the beginning of the succeeding Offering
Period unless the participant delivers to the Company a new subscription
agreement.
(ii) A participant's withdrawal from an Offering Period shall
not have any effect upon his or her eligibility to participate in other
provisions of the Plan, any similar Program which may hereafter be adopted by
the Company or in succeeding Offering Periods which commence after the
termination of the Offering Period from which the participant withdraws.
(j) Termination of Employment.
-------------------------
Upon a participant's ceasing to be an Employee, for any reason, he or
she shall be deemed to have elected to withdraw from the Program and the payroll
deductions credited to such participant's account during the Offering Period but
not yet used to exercise the Right shall be returned to such participant or, in
the case of his or her death, to the person or persons entitled thereto under
Section 11(l) hereof, and such participant's Right shall be automatically
terminated. The preceding sentence notwithstanding, a participant who receives
payment in lieu of notice of termination of employment shall be treated as
continuing to be an Employee for the participant's customary number of hours per
week of employment during the period in which the participant is subject to such
payment in lieu of notice.
(k) Interest. No interest shall accrue on the payroll deductions
--------
of a participant in the Program.
(l) Designation of Beneficiary.
--------------------------
(i) A participant may file a written designation of a
beneficiary who is to receive any shares and cash, if any, from the
participant's account under the Program in the event of such participant's death
subsequent to an Exercise Date on which the Right is exercised but prior to
delivery to such participant of such shares and cash. In addition, a participant
may file a written designation of a beneficiary who is to receive any cash from
the participant's account under the Program in the event of such participant's
death prior to exercise of the Right. If a participant is married and the
designated beneficiary is not the spouse, spousal consent shall be required for
such designation to be effective.
(ii) Such designation of beneficiary may be changed by the
participant at any time by written notice. In the event of the death of a
participant and in the absence of a beneficiary validly designated under the
Program who is living at the time of such participant's
15
<PAGE>
death, the Company shall deliver such shares and/or cash to the executor or
administrator of the estate of the participant, or if no such executor or
administrator has been appointed (to the knowledge of the Company), the Company,
in its discretion, may deliver such shares and/or cash to the spouse or to any
one or more dependents or relatives of the participant, or if no spouse,
dependent or relative is known to the Company, then to such other person as the
Company may designate.
(m) Transferability. Neither payroll deductions credited to a
---------------
participant's account nor any rights with regard to the exercise of a Right or
to receive shares under the Program may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of descent and
distribution or as provided herein) by the participant. Any such attempt at
assignment, transfer, pledge or other disposition shall be without effect,
except that the Company may treat such act as an election to withdraw funds from
an Offering Period in accordance with subsection 11(h) hereof.
(n) Use of Funds. All payroll deductions received or held by the
------------
Company under the Program may be used by the Company for any corporate purpose,
and the Company shall not be obligated to segregate such payroll deductions.
(o) Reports. Individual accounts shall be maintained for each
-------
participant in the Program. Statements of account shall be given to
participating Employees at least annually, which statements shall set forth the
amounts of payroll deductions, the Purchase Price, the number of shares
purchased and the remaining cash balance, if any.
(p) Amendment or Termination of the Program.
---------------------------------------
(i) The Compensation Committee may at any time and for any
reason terminate or amend the Program. Except as provided herein, no such
termination can affect options previously granted, provided that an Offering
Period may be terminated by the Compensation Committee on any Exercise Date if
the Compensation Committee determines that the termination of the Offering
Period or the Program is in the best interests of the Company and its
shareholders. Except as otherwise provided herein, no amendment may make any
change in any option theretofore granted which adversely affects the rights of
any participant. To the extent necessary to comply with Section 423 of the Code
(or any successor rule or provision or any other applicable law, regulation or
stock exchange rule), the Company shall obtain shareholder approval in such a
manner and to such a degree as required.
(ii) Without shareholder consent and without regard to whether
any participant rights may be considered to have been "adversely affected," the
Compensation Committee shall be entitled to change the Offering Periods, limit
the frequency and/or number of changes in the amount withheld during an Offering
Period, establish the exchange ratio applicable to amounts withheld in a
currency other than U.S. dollars, permit payroll withholding in excess of the
amount designated by a participant in order to adjust for delays or mistakes in
the Company's processing of properly completed withholding elections, establish
reasonable waiting and adjustment
16
<PAGE>
periods and/or accounting and crediting procedures to ensure that amounts
applied toward the purchase of Common Stock for each participant properly
correspond with amounts withheld from the participant's Compensation, and
establish such other limitations or procedures as the Compensation Committee)
determines in its sole discretion advisable which are consistent with the
Program.
(iii) In the event the Compensation Committee determines that
the ongoing operation of the Program may result in unfavorable financial
accounting consequences, the Compensation Committee may, in its discretion and,
to the extent necessary or desirable, modify or amend the Program to reduce or
eliminate such accounting consequence including, but not limited to:
A. altering the Purchase Price for any Offering Period
including an Offering Period underway at the time of the change in Purchase
Price;
B. shortening any Offering Period so that Offering
Period ends on a new Exercise Date, including an Offering Period underway at the
time of the Compensation Committee action; and
C. allocating shares.
Such modifications or amendments shall not require stockholder approval or the
consent of any Plan or Program participants.
(q) Notices. All notices or other communications by a
-------
participant to the Company under or in connection with the Program shall be
deemed to have been duly given when received in the form specified by the
Company at the location, or by the person, designated by the Company for the
receipt thereof.
12. Non-Transferability of Options and Rights. Unless determined
-----------------------------------------
otherwise by the Administrator, an Option or Right may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent or distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee. The Administrator may, in a
manner established by the Administrator, provide for the transfer, without
payment of consideration, of an Option by the Optionee to any member of the
Optionee's immediate family or to a trust or partnership whose beneficiaries are
members of the Optionee's immediate family. In such a case, the Option shall be
exercisable only by such transferee. Following transfer, any such Options shall
continue to be subject to the same terms and conditions as were applicable
immediately prior to the transfer. For purposes of this Section 12, an
Optionee's "immediate family" shall mean the Optionee's spouse, lineal
descendants, father, mother, brothers and sisters.
13. Adjustments Upon Changes in Capitalization, Dissolution, Merger or
------------------------------------------------------------------
Asset Sale.
- ----------
(a) Changes in Capitalization. Subject to any required action by the
-------------------------
shareholders of the Company, the number of shares of Common Stock covered by
each outstanding Option and
17
<PAGE>
Right, the number of shares of Common Stock which have been authorized for
issuance under the Plan but as to which no Options or Rights have yet been
granted or which have been returned to the Plan upon cancellation or expiration
of an Option or Right, as well as the price per share of Common Stock covered by
each such outstanding Option or Right, the 10,000,000 share number in the
automatic replenishment formula of Section 3 and the 2000 share ESPP Purchase
Period share purchase limit in Section 11 shall be proportionately adjusted for
any increase or decrease in the number of issued shares of Common Stock
resulting from a stock split, reverse stock split, stock dividend, combination
or reclassification of the Common Stock, or any other increase or decrease in
the number of issued shares of Common Stock effected without receipt of
consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the
Compensation Committee, whose determination in that respect shall be final,
binding and conclusive. Except as expressly provided herein, no issuance by the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, shall affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares of Common Stock subject
to an Option or Right.
(b) Dissolution or Liquidation.
--------------------------
(i) Discretionary Options. In the event of the proposed
---------------------
dissolution or liquidation of the Company, the Administrator shall notify each
Optionee as soon as practicable prior to the effective date of such proposed
transaction. The Administrator in its discretion may provide for an Optionee to
have the right to exercise his or her Option until ten (10) days prior to such
transaction as to all of the Optioned Stock covered thereby, including Shares as
to which the Option would not otherwise be vested or exercisable. In addition,
the Administrator may provide that any Company repurchase option applicable to
any Shares purchased upon exercise of an Option shall lapse as to all such
Shares, provided the proposed dissolution or liquidation takes place at the time
and in the manner contemplated. To the extent it has not been previously
exercised, an Option will terminate immediately prior to the consummation of
such proposed action.
(ii) Employee Stock Purchase Program. In the event of the
-------------------------------
proposed dissolution or liquidation of the Company, the Offering Period then in
progress shall be shortened by setting a new Exercise Date (the "New Exercise
Date"), and shall terminate immediately prior to the consummation of such
proposed dissolution or liquidation, unless provided otherwise by the
Administrator. The New Exercise Date shall be before the date of the Company's
proposed dissolution or liquidation. The Administrator shall notify each
participant in writing, at least ten (10) business days prior to the New
Exercise Date, that the Exercise Date for the participant's Right has been
changed to the New Exercise Date and that the participant's Right shall be
exercised automatically on the New Exercise Date, unless prior to such date the
participant has withdrawn from the Offering Period as provided in Section 11
hereof.
(c) Merger or Asset Sale.
--------------------
18
<PAGE>
(i) Discretionary Options. In the event of a merger of the
---------------------
Company with or into another corporation, or the sale of substantially all of
the assets of the Company, each outstanding Option shall be assumed or an
equivalent option substituted by the successor corporation or a Parent or
Subsidiary of the successor corporation. In the event that the successor
corporation refuses to assume or substitute for the Option, the Optionee shall
fully vest in and have the right to exercise the Option as to all of the
Optioned Stock, including Shares as to which it would not otherwise be vested or
exercisable. If an Option becomes fully vested and exercisable in lieu of
assumption or substitution in the event of a merger or sale of assets, the
Administrator shall notify the Optionee in writing or electronically that the
Option shall be fully vested and exercisable for a period of fifteen (15) days
from the date of such notice, and the Option shall terminate upon the expiration
of such period. For the purposes of this paragraph, the Option shall be
considered assumed if, following the merger or sale of assets, the option
confers the right to purchase or receive, for each Share of Optioned Stock
subject to the Option immediately prior to the merger or sale of assets, the
consideration (whether stock, cash, or other securities or property) received in
the merger or sale of assets by holders of Common Stock for each Share held on
the effective date of the transaction (and if holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of
the outstanding Shares); provided, however, that if such consideration received
in the merger or sale of assets is not solely common stock of the successor
corporation or its Parent, the Administrator may, with the consent of the
successor corporation, provide for the consideration to be received upon the
exercise of the Option, for each Share of Optioned Stock subject to the Option,
to be solely common stock of the successor corporation or its Parent equal in
fair market value to the per share consideration received by holders of Common
Stock in the merger or sale of assets.
(ii) Employee Stock Purchase Program. In the event of a
-------------------------------
proposed sale of all or substantially all of the assets of the Company, or the
merger of the Company with or into another corporation, each outstanding Right
shall be assumed or an equivalent option substituted by the successor
corporation or a Parent or Subsidiary of the successor corporation. In the event
that the successor corporation refuses to assume or substitute for the option,
any Purchase Periods then in progress shall be shortened by setting a new
Exercise Date (the "New Exercise Date") and any Offering Periods then in
progress shall end on the New Exercise Date. The New Exercise Date shall be
before the date of the Company's proposed sale or merger. The Compensation
Committee shall notify each participant in writing, at least ten (10) business
days prior to the New Exercise Date, that the Exercise Date for the
participant's Right has been changed to the New Exercise Date and that the
participant's Right shall be exercised automatically on the New Exercise Date,
unless prior to such date the participant has withdrawn from the Offering Period
as provided in Section 11 hereof.
14. Option Date of Grant. The date of grant of an Option shall be, for
--------------------
all purposes, the date on which the Administrator makes the determination
granting such Option, or such other later date as is determined by the
Administrator. Notice of the determination shall be provided to each Optionee
within a reasonable time after the date of such grant.
19
<PAGE>
15. Amendment and Termination of the Plan.
-------------------------------------
(a) Amendment and Termination. The Compensation Committee may at
-------------------------
any time amend, alter, suspend or terminate the Plan.
(b) Shareholder Approval. The Company shall obtain shareholder
--------------------
approval of any Plan amendment to the extent necessary and desirable to comply
with Applicable Laws.
(c) Effect of Amendment or Termination. No amendment, alteration,
----------------------------------
suspension or termination of the Plan shall impair the rights of any Optionee,
unless mutually agreed otherwise between the Optionee and the Administrator,
which agreement must be in writing and signed by the Optionee and the Company.
Termination of the Plan shall not affect the Administrator's ability to exercise
the powers granted to it hereunder with respect to Options granted under the
Plan prior to the date of such termination.
16. Conditions Upon Issuance of Shares.
----------------------------------
(a) Legal Compliance. Shares shall not be issued pursuant to the
----------------
exercise of an Option unless the exercise of such Option and the issuance and
delivery of such Shares shall comply with Applicable Laws and shall be further
subject to the approval of counsel for the Company with respect to such
compliance.
(b) Investment Representations. As a condition to the exercise of
--------------------------
an Option, the Company may require the person exercising such Option to
represent and warrant at the time of any such exercise that the Shares are being
purchased only for investment and without any present intention to sell or
distribute such Shares if, in the opinion of counsel for the Company, such a
representation is required.
17. Inability to Obtain Authority. The inability of the Company to
-----------------------------
obtain authority from any regulatory body having jurisdiction, which authority
is deemed by the Company's counsel to be necessary to the lawful issuance and
sale of any Shares hereunder, shall relieve the Company of any liability in
respect of the failure to issue or sell such Shares as to which such requisite
authority shall not have been obtained.
18. Reservation of Shares. The Company, during the term of this Plan,
---------------------
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
19. Shareholder Approval. The Plan shall be subject to approval by the
--------------------
shareholders of the Company within twelve (12) months after the date the Plan is
adopted. Such shareholder approval shall be obtained in the manner and to the
degree required under Applicable Laws.
20
<PAGE>
EXHIBIT A
---------
TIBCO SOFTWARE INC.
1999 EMPLOYEE STOCK PURCHASE PROGRAM
SUBSCRIPTION AGREEMENT
_____ Original Application Enrollment Date: ___________
_____ Change in Payroll Deduction Rate
_____ Change of Beneficiary(ies)
1. ____________________ hereby elects to participate in the TIBCO Software
Inc. Employee Stock Purchase Program (the "Employee Stock Purchase
Program") and subscribes to purchase shares of the Company's Common Stock
in accordance with this Subscription Agreement, the Employee Stock Purchase
Program and the TIBCO Software Inc. 1996 Stock Option Plan (the "1996 Stock
Plan").
2. I hereby authorize payroll deductions from each paycheck in the amount of
____% of my Compensation on each payday (from 1 to 10%) during the Offering
Period in accordance with the Employee Stock Purchase Program. (Please
note that no fractional percentages are permitted.)
3. I understand that said payroll deductions shall be accumulated for the
purchase of shares of Common Stock at the applicable Purchase Price
determined in accordance with the Employee Stock Purchase Program. I
understand that if I do not withdraw from an Offering Period, any
accumulated payroll deductions will be used to automatically exercise my
option.
4. I have received a copy of the complete 1996 Stock Plan. I understand that
my participation in the Employee Stock Purchase Program is in all respects
subject to the terms of the 1996 Stock Plan. I understand that my ability
to exercise the option under this Subscription Agreement is subject to
shareholder approval of the 1996 Stock Plan.
5. Shares purchased for me under the Employee Stock Purchase Program should be
issued in the name(s) of (Employee or Employee and Spouse only):.
6. I understand that if I dispose of any shares received by me pursuant to the
Employee Stock Purchase Program within 2 years after the Enrollment Date
(the first day of the Offering Period during which I purchased such shares)
or one year after the Exercise Date, I will be treated for federal income
tax purposes as having received ordinary income at the time of such
disposition in an amount equal to the excess of the fair market value of
the shares at the time such shares were purchased by me over the price
which I paid for the shares. I hereby agree to notify the Company in
---------------------------------------
writing within 30 days after the date of any disposition of my
---------------------------------------------------------------
21
<PAGE>
shares and I will make adequate provision for Federal, state or other tax
-------------------------------------------------------------------------
withholding obligations, if any, which arise upon the disposition of the
-------------------------------------------------------------------------
Common Stock. The Company may, but will not be obligated to, withhold from
------------
my compensation the amount necessary to meet any applicable withholding
obligation including any withholding necessary to make available to the
Company any tax deductions or benefits attributable to sale or early
disposition of Common Stock by me. If I dispose of such shares at any time
after the expiration of the 2-year and 1-year holding periods, I understand
that I will be treated for federal income tax purposes as having received
income only at the time of such disposition, and that such income will be
taxed as ordinary income only to the extent of an amount equal to the
lesser of (1) the excess of the fair market value of the shares at the time
of such disposition over the purchase price which I paid for the shares, or
(2) 15% of the fair market value of the shares on the first day of the
Offering Period. The remainder of the gain, if any, recognized on such
disposition will be taxed as capital gain.
7. I hereby agree to be bound by the terms of the Employee Stock Purchase
Program. The effectiveness of this Subscription Agreement is dependent
upon my eligibility to participate in the Employee Stock Purchase Program.
8. In the event of my death, I hereby designate the following as my
beneficiary(ies) to receive all payments and shares due me under the
Employee Stock Purchase Program:
NAME: (Please print)_____________________________________________________
(First) (Middle) (Last)
__________________________________ ____________________________________
Relationship
____________________________________
(Address)
22
<PAGE>
Employee's Social
Security Number: ____________________________________
Employee's Address: ____________________________________
____________________________________
____________________________________
I UNDERSTAND THAT THIS SUBSCRIPTION AGREEMENT SHALL REMAIN IN EFFECT THROUGHOUT
SUCCESSIVE OFFERING PERIODS UNLESS TERMINATED BY ME.
Dated:_________________________ ____________________________________
Signature of Employee
____________________________________
Spouse's Signature (If beneficiary
other than spouse)
23
<PAGE>
EXHIBIT B
---------
TIBCO SOFTWARE INC.
1999 EMPLOYEE STOCK PURCHASE PROGRAM
NOTICE OF WITHDRAWAL
The undersigned participant in the Offering Period of the Employee Stock
Purchase Program which began on ____________, ______ (the "Enrollment Date")
hereby notifies the Company that he or she hereby withdraws from the Offering
Period. He or she hereby directs the Company to pay to the undersigned as
promptly as practicable all the payroll deductions credited to his or her
account with respect to such Offering Period. The undersigned understands and
agrees that his or her option for such Offering Period will be automatically
terminated. The undersigned understands further that no further payroll
deductions will be made for the purchase of shares in the current Offering
Period and the undersigned shall be eligible to participate in succeeding
Offering Periods only by delivering to the Company a new Subscription Agreement.
Name and Address of Participant:
________________________________
________________________________
________________________________
Signature:
________________________________
Date:____________________________
24
<PAGE>
EHXIBIT 10.5
------------
TIBCO SOFTWARE INC.
1998 DIRECTOR OPTION PLAN
(as amended and restated effective as of the date
of obtaining stockholder approval in May 1999)
1. Purposes of the Plan. The purposes of this 1998 Director Option Plan
--------------------
are to attract and retain the best available personnel for service as Directors
(as defined herein) of the Company, to provide additional incentive to Directors
of the Company to serve as Directors, and to encourage their continued service
on the Board.
2. Definitions. As used herein, the following definitions shall apply:
-----------
(a) "Administrator" means the Compensation Committee that shall be
-------------
administering the Plan in accordance with Section 4 hereof.
(b) "Applicable Laws" means the requirements relating to the
---------------
administration of stock option plans under U.S. state corporate laws, U.S.
federal and state securities laws, the Code, any stock exchange or quotation
system on which the Common Stock is listed or quoted and the applicable laws of
any foreign country or jurisdiction where Options are granted under the Plan.
(c) "Board" means the Board of Directors of the Company.
-----
(d) "Code" means the Internal Revenue Code of 1986, as amended.
----
(e) "Common Stock" means the common stock of the Company.
------------
(f) "Company" means TIBCO Software Inc., a Delaware corporation.
-------
(g) "Compensation Committee" means a compensation committee appointed
----------------------
by the Board.
(h) "Director" means a member of the Board.
--------
(i) "Disability" means total and permanent disability as defined in
----------
Section 22(e)(3) of the Code.
(j) "Employee" means any person, including Directors, employed by the
--------
Company or Subsidiary of the Company. Neither service as a Director nor payment
of a director's fee by the Company shall be sufficient to constitute
"employment" by the Company.
<PAGE>
(k) "Exchange Act" means the Securities Exchange Act of 1934, as
------------
amended.
(l) "Fair Market Value" means, as of any date, the value of Common
-----------------
Stock determined as follows:
(i) If the Common Stock is listed on any established stock
exchange or a national market system, including without limitation the Nasdaq
National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its
Fair Market Value shall be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such exchange or system
for the last market trading day prior to the time of determination, as
reported in The Wall Street Journal or such other source as the Administrator
deems reliable;
(ii) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, its Fair Market Value
shall be the mean between the high bid and low asked prices for the Common Stock
on the last market trading day prior to the day of determination; or
(iii) In the absence of an established market for the Common
Stock, the Fair Market Value thereof shall be determined in good faith by the
Administrator.
(m) "FASB Rule Change Effective Date" means the date of issuance of the
-------------------------------
Financial Accounting Standards Board's interpretation of APB Opinion No. 25,
based on the proposed interpretation issued on March 31, 1999.
(n) "Inside Director" means a Director who is an Employee.
---------------
(o) "Option" means a stock option granted pursuant to the Plan.
------
(p) "Option Agreement" means a written or electronic agreement between
----------------
the Company and an Optionee evidencing the terms and conditions of an
individual Option grant. The Option Agreement is subject to the terms and
conditions of the Plan.
(q) "Optioned Stock" means the Common Stock subject to an Option.
--------------
(r) "Optionee" means a Director who holds an Option granted under the
--------
Plan.
(s) "Outside Director" means a Director who is not an Employee.
----------------
(t) "Parent" means a "parent corporation," whether now or hereafter
------
existing, as defined in Section 424(e) of the Code.
(u) "Plan" means this 1998 Director Option Plan.
----
-2-
<PAGE>
(v) "Share" means a share of the Common Stock, as adjusted in
-----
accordance with Section 11 below.
(w) "Subsidiary" means a "subsidiary corporation," whether now or
----------
hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of Section 11 of
-------------------------
the Plan, the maximum aggregate number of Shares which may be subject to option
and sold under the Plan is 1,650,000 Shares (the "Pool"). The Shares may be
authorized but unissued, or reacquired Common Stock.
If an Option expires or becomes unexercisable without having been
exercised in full, the unpurchased Shares which were subject thereto shall
become available for future grant or sale under the Plan (unless the Plan has
terminated). However, Shares that have actually been issued under the Plan,
shall not be returned to the Plan and shall not become available for future
distribution under the Plan.
4. Administration of the Plan.
--------------------------
(a) The Plan shall be administered by the Compensation Committee, which
shall be constituted to comply with Applicable Laws.
(b) Powers of the Administrator. Subject to the provisions of the Plan
---------------------------
and subject to the approval of any relevant authorities, the Administrator shall
have the authority in its discretion:
(i) to determine the Fair Market Value;
(ii) to select the Directors to whom Options may from time to
time be granted hereunder;
(iii) to determine the number of Shares to be covered by an
Option granted to a Director;
(iv) to approve forms of agreement for use under the Plan;
(v) to determine the terms and conditions, of any Option
granted to a Director. Such terms and conditions include, but are not limited
to, the exercise price, the time or times when Options may be exercised (which
may be based on performance criteria), any vesting acceleration or waiver of
forfeiture restrictions, and any restriction or limitation regarding any
Option or the Common Stock relating thereto, based in each case on such
factors as the Administrator, in its sole discretion, shall determine;
-3-
<PAGE>
(vi) to determine whether and under what circumstances an Option
may be settled in cash under subsection 9(e) instead of Common Stock;
(vii) to prescribe, amend and rescind rules and regulations
relating to the Plan, including rules and regulations relating to sub-plans
established for the purpose of qualifying for preferred tax treatment under
foreign tax laws;
(viii) to allow Optionees to satisfy withholding tax obligations
by electing to have the Company withhold from the Shares to be issued upon
exercise of an Option that number of Shares having a Fair Market Value equal
to the amount required to be withheld. The Fair Market Value of the Shares to
be withheld shall be determined on the date that the amount of tax to be
withheld is to be determined. All elections by Optionees to have Shares
withheld for this purpose shall be made in such form and under such conditions
as the Administrator may deem necessary or advisable; and
(ix) to construe and interpret the terms of the Plan and Options.
(c) Effect of Administrator's Decision. All decisions, determinations
----------------------------------
and interpretations of the Administrator shall be final and binding on all
Optionees.
(d) Procedure for Grants to Outside Directors. Except as otherwise
-----------------------------------------
provided in Section 4, all grants of Options to Outside Directors under this
Plan shall be automatic and nondiscretionary and shall be made strictly in
accordance with the following provisions:
(i) No person shall have any discretion to select which Outside
Directors shall be granted Options or to determine the number of Shares to be
covered by Options granted to Outside Directors; provided, however that any
Outside Director may decline to receive an automatic Option grant hereunder by
providing written notice to the Administrator prior to such automatic Option
grant.
(ii) On or after the FASB Rule Change Effective Date, each
Outside Director shall be automatically granted an Option to purchase 10,000
Shares on January 1, April 1, July 1 and October 1 of each year provided he or
she is then an Outside Director; provided, however, Outside Directors who
received an automatic Option grant in February 1999, pursuant to the Plan,
shall not be eligible to receive automatic grants until January 1, 2000.
(iii) Each of the three (3) representatives of Reuters Group PLC
or any of its wholly owned subsidiaries who are also Outside Directors shall
be automatically granted an Option to purchase 100,000 Shares upon the date of
obtaining stockholder approval of the Plan in May, 1999 (the "Reuters Initial
Grants"), or a greater number of Shares as determined by the Administrator.
-4-
<PAGE>
(iv) Representatives of Reuters Group PLC or any of its wholly
owned subsidiaries who are also Outside Directors may assign or transfer their
Options to Reuters Group PLC or any of its wholly owned subsidiaries.
(v) The terms of each Option granted hereunder shall be as
follows:
(A) the term of the Option shall be ten (10) years.
(B) the Option shall be exercisable only while the Outside
Director remains a Director of the Company, except as set forth in Sections 9
and 11 hereof.
(C) unless otherwise determined by the Administrator, the
exercise price per Share shall be 100% of the Fair Market Value per Share on
the date of grant of the Option.
(D) the Option shall be fully vested and exercisable on the
date of grant.
(vi) Notwithstanding any provision to the contrary, in the
event that it is determined by the Administrator that automatic annual grants
subject to vesting will not result in unfavorable accounting consequences to
the Company, the Administrator shall amend the Plan to provide automatic
annual grants subject to vesting in substantially the same form as provided by
this Plan prior to its May 1999 amendment and restatement.
(vii) In the event that any Option granted under the Plan would
cause the number of Shares subject to outstanding Options plus the number of
Shares previously purchased under Options to exceed the Pool, then the
remaining Shares available for Option grant shall be granted under Options to
the Outside Directors on a pro rata basis. No further grants shall be made
until such time, if any, as additional Shares become available for grant under
the Plan through action of the Compensation Committee or the stockholders to
increase the number of Shares which may be issued under the Plan or through
cancellation or expiration of Options previously granted hereunder.
5. Eligibility.
-----------
(a) Options may be granted only to Directors.
(b) Neither the Plan nor any Option shall confer upon any Optionee any
right with respect to continuation of service as a Director or nomination to
serve as a Director, nor shall it interfere in any way with any rights which the
Director or the Company may have to terminate the Director's relationship with
the Company at any time.
-5-
<PAGE>
6. Term of Plan. The amendment and restatement of the Plan shall become
------------
effective upon the date of stockholder approval of the Plan in May 1999;
provided, however, that amendments that would cause the Plan or Options granted
hereunder to fail to comply with applicable California "blue sky" securities
laws shall not be effective until the IPO Effective Date. It shall continue in
effect for a term of ten (10) years from the date of obtaining stockholder
approval of the Plan in May, 1999, unless terminated earlier under Section 13 of
the Plan.
7. Term of Option. The term of each Option granted to an Inside Director
--------------
shall be stated in the Option Agreement; provided, however, that the term shall
be no more than ten (10) years from the date of grant thereof.
8. Consideration. The consideration to be paid for the Shares to be
-------------
issued upon exercise of an Option, including the method of payment, shall be
determined by the Administrator. Such consideration may consist of (1) cash,
(2) check, (3) promissory note, (4) other Shares which (x) in the case of
Shares acquired upon exercise of an Option, have been owned by the Optionee
for more than six months on the date of surrender, and (y) have a Fair Market
Value on the date of surrender equal to the aggregate exercise price of the
Shares as to which such Option shall be exercised, (5) consideration received
by the Company under a cashless exercise program implemented by the Company in
connection with the Plan, or (6) any combination of the foregoing methods of
payment. In making its determination as to the type of consideration to
accept, the Administrator shall consider if acceptance of such consideration
may be reasonably expected to benefit the Company.
9. Exercise of Option.
------------------
(a) Procedure for Exercise; Rights as a Stockholder. Any Option granted
-----------------------------------------------
hereunder shall be exercisable according to the terms hereof at such times and
under such conditions as determined by the Administrator and set forth in the
Option Agreement. Unless the Administrator provides otherwise, vesting of
Options granted hereunder shall be tolled during any unpaid leave of absence.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed exercised when the Company receives: (i)
written or electronic notice of exercise (in accordance with the Option
Agreement) from the person entitled to exercise the Option, and (ii) full
payment for the Shares with respect to which the Option is exercised. Full
payment may consist of any consideration and method of payment authorized by the
Administrator and permitted by the Option Agreement and the Plan. Shares issued
upon exercise of an Option shall be issued in the name of the Optionee or, if
requested by the Optionee, in the name of the Optionee and his or her spouse.
Until the Shares are issued (as evidenced by the appropriate entry on the books
of the Company or of a duly authorized transfer agent of the Company), no right
to vote or receive dividends or any other rights as a stockholder shall exist
with respect to the Shares, notwithstanding the exercise of the Option. The
Company shall issue (or cause to be issued) such Shares promptly after the
Option is exercised. No adjustment will be made for a dividend or other
-6-
<PAGE>
right for which the record date is prior to the date the Shares are issued,
except as provided in Section 11 of the Plan.
Exercise of an Option in any manner shall result in a decrease in
the number of Shares thereafter available, both for purposes of the Plan and
for sale under the Option, by the number of Shares as to which the Option is
exercised.
(b) Termination of Continuous Status as a Director. Subject to Section
----------------------------------------------
11 hereof, in the event an Optionee's status as a Director terminates (other
than upon the Optionee's death or Disability, the Optionee may exercise his or
her Option, but only within three (3) months following the date of such
termination, and only to the extent that the Optionee was entitled to exercise
it on the date of such termination (but in no event later than the expiration of
its ten (10) year term). To the extent that the Optionee was not entitled to
exercise an Option on the date of such termination, and to the extent that the
Optionee does not exercise such Option (to the extent otherwise so entitled)
within the time specified herein, the Option shall terminate.
(c) Disability of Optionee. In the event Optionee's status as a
----------------------
Director terminates as a result of Disability, the Optionee may exercise his or
her Option, but only within twelve (12) months following the date of such
termination, and only to the extent that the Optionee was entitled to exercise
it on the date of such termination (but in no event later than the expiration of
its ten (10) year term). To the extent that the Optionee was not entitled to
exercise an Option on the date of termination, or if he or she does not exercise
such Option (to the extent otherwise so entitled) within the time specified
herein, the Option shall terminate.
(d) Death of Optionee. In the event of an Optionee's death, the
-----------------
Optionee's estate or a person who acquired the right to exercise the Option by
bequest or inheritance may exercise the Option, but only within twelve (12)
months following the date of death, and only to the extent that the Optionee was
entitled to exercise it on the date of death (but in no event later than the
expiration of its ten (10) year term). To the extent that the Optionee was not
entitled to exercise an Option on the date of death, and to the extent that the
Optionee's estate or a person who acquired the right to exercise such Option
does not exercise such Option (to the extent otherwise so entitled) within the
time specified herein, the Option shall terminate.
(e) Buyout Provisions. The Administrator may at any time offer to buy
-----------------
out for a payment in cash or Shares, an Option previously granted, based on such
terms and conditions as the Administrator shall establish and communicate to the
Optionee at the time that such offer is made.
10. Non-Transferability of Options. Unless determined otherwise by the
------------------------------
Administrator, Options may not be sold, pledged, assigned, hypothecated,
transferred, or disposed of in any manner other than by will or by the laws of
descent or distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee. If the Administrator makes an Option
transferable, such Option shall contain such additional terms and conditions as
the Administrator deems appropriate.
-7-
<PAGE>
11. Adjustments Upon Changes in Capitalization, Merger or Asset Sale.
----------------------------------------------------------------
(a) Changes in Capitalization. Subject to any required action by the
-------------------------
stockholders of the Company, the number of shares of Common Stock covered by
each outstanding Option, and the number of shares of Common Stock which have
been authorized for issuance under the Plan but as to which no Options have yet
been granted or which have been returned to the Plan upon cancellation or
expiration of an Option, as well as the price per share of Common Stock covered
by each such outstanding Option, shall be proportionately adjusted for any
increase or decrease in the number of issued shares of Common Stock resulting
from a stock split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other increase or decrease in the
number of issued shares of Common Stock effected without receipt of
consideration by the Company. The conversion of any convertible securities of
the Company shall not be deemed to have been "effected without receipt of
consideration." Such adjustment shall be made by the Compensation Committee,
whose determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Company of shares of
stock of any class, or securities convertible into shares of stock of any class,
shall affect, and no adjustment by reason thereof shall be made with respect to,
the number or price of shares of Common Stock subject to an Option.
(b) Dissolution or Liquidation. In the event of the proposed
--------------------------
dissolution or liquidation of the Company, the Administrator shall notify each
Optionee as soon as practicable prior to the effective date of such proposed
transaction. The Administrator in its discretion may provide for an Optionee to
have the right to exercise his or her Option until fifteen (15) days prior to
such transaction as to all of the Optioned Stock covered thereby, including
Shares as to which the Option would not otherwise be exercisable. To the extent
it has not been previously exercised, an Option will terminate immediately prior
to the consummation of such proposed action.
(c) Merger or Asset Sale. In the event of a merger of the Company with
--------------------
or into another corporation or the sale of substantially all of the assets of
the Company, outstanding Options may be assumed or equivalent options may be
substituted by the successor corporation or a Parent or Subsidiary thereof (the
"Successor Corporation"). If an Option is assumed or substituted for, the
Option or equivalent option shall continue to be exercisable as provided in
Section 4 hereof for so long as the Optionee serves as a Director or a director
of the Successor Corporation. Following such assumption or substitution, if the
Optionee's status as a Director or director of the Successor Corporation, as
applicable, is terminated other than upon a voluntary resignation by the
Optionee, the Option or option shall become fully exercisable, including as to
Shares for which it would not otherwise be exercisable. Thereafter, the Option
or option shall remain exercisable in accordance with Sections 9(b) through (d)
above.
If the Successor Corporation does not assume an outstanding Option or
substitute for it an equivalent option, the Option shall become fully vested and
exercisable, including as to Shares for
-8-
<PAGE>
which it would not otherwise be exercisable. In such event the Compensation
Committee shall notify the Optionee that the Option shall be fully exercisable
for a period of thirty (30) days from the date of such notice, and upon the
expiration of such period the Option shall terminate.
For the purposes of this Section 11(c), an Option shall be considered
assumed if, following the merger or sale of assets, the Option confers the right
to purchase or receive, for each Share of Optioned Stock subject to the Option
immediately prior to the merger or sale of assets, the consideration (whether
stock, cash, or other securities or property) received in the merger or sale of
assets by holders of Common Stock for each Share held on the effective date of
the transaction (and if holders were offered a choice of consideration, the type
of consideration chosen by the holders of a majority of the outstanding Shares).
If such consideration received in the merger or sale of assets is not solely
common stock of the successor corporation or its Parent, the Administrator may,
with the consent of the successor corporation, provide for the consideration to
be received upon the exercise of the Option, for each Share of Optioned Stock
subject to the Option, to be solely common stock of the successor corporation or
its Parent equal in fair market value to the per share consideration received by
holders of Common Stock in the merger or sale of assets.
12. Time of Granting Options. The date of grant of an Option shall, for
------------------------
all purposes, be the date on which the Administrator makes the determination
granting such Option, or such other date as is determined by the Administrator.
Notice of the determination shall be given to each Director to whom an Option is
so granted within a reasonable time after the date of such grant.
13. Amendment and Termination of the Plan.
-------------------------------------
(a) Amendment and Termination. The Compensation Committee may at any
-------------------------
time amend, alter, suspend or terminate the Plan.
(b) Stockholder Approval. The Compensation Committee shall obtain
--------------------
stockholder approval of any Plan amendment to the extent necessary and desirable
to comply with Applicable Laws.
(c) Effect of Amendment or Termination. No amendment, alteration,
----------------------------------
suspension or termination of the Plan shall impair the rights of any Optionee,
unless mutually agreed otherwise between the Optionee and the Administrator,
which agreement must be in writing and signed by the Optionee and the Company.
Termination of the Plan shall not affect the Administrator's ability to exercise
the powers granted to it hereunder with respect to Options granted under the
Plan prior to the date of such termination.
14. Conditions Upon Issuance of Shares.
----------------------------------
(a) Legal Compliance. Shares shall not be issued pursuant to the
----------------
exercise of an Option unless the exercise of such Option and the issuance and
delivery of such Shares shall comply
-9-
<PAGE>
with Applicable Laws and shall be further subject to the approval of counsel
for the Company with respect to such compliance.
(b) Investment Representations. As a condition to the exercise of an
--------------------------
Option, the Administrator may require the person exercising such Option to
represent and warrant at the time of any such exercise that the Shares are being
purchased only for investment and without any present intention to sell or
distribute such Shares if, in the opinion of counsel for the Company, such a
representation is required.
15. Inability to Obtain Authority. The inability of the Company to obtain
-----------------------------
authority from any regulatory body having jurisdiction, which authority is
deemed by the Company's counsel to be necessary to the lawful issuance and sale
of any Shares hereunder, shall relieve the Company of any liability in respect
of the failure to issue or sell such Shares as to which such requisite authority
shall not have been obtained.
16. Reservation of Shares. The Company, during the term of this Plan,
---------------------
shall at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
-10-
<PAGE>
Exhibit 10.12
SOFTWARE LICENSE AND DEVELOPMENT AGREEMENT
Cedel Global Services, societe anonyme
and
TIBCO Software Inc.
[ * ] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
<PAGE>
Table of Contents
<TABLE>
<S> <C>
I. Definitions.................................................... 5
II. Scope of Services.............................................. 7
III. Taxes.......................................................... 8
IV. Title.......................................................... 8
A. CGS Applications:........................................... 8
B. Generic Business Applications:.............................. 9
C. Generic Technical Applications:............................. 9
V. License........................................................ 9
VI. Marketing of Products and Royalties............................ 10
VII. Termination.................................................... 11
VIII. Warranties..................................................... 13
IX. Non-Solicitation of Employees and Non-Competition.............. 14
X. Compliance With Law............................................ 15
XI. Applicable Law................................................. 16
XII. Dispute Resolution............................................. 16
XIII. Proprietary Rights Indemnity................................... 17
XIV. General Indemnity.............................................. 18
XV. Insurance...................................................... 18
XVI. Limitation of Liability........................................ 18
XVII. Force Majeure.................................................. 18
XVIII. Confidentiality................................................ 19
XIX. Notices........................................................ 20
XX. Assignment..................................................... 20
XXI. General........................................................ 20
Exhibit A: Existing Software.... ......................................... 24
Exhibit B: Capital Market Services
of Cedel International and its subsidiaries.................... 25
Exhibit C: TIBCO Standard Provisions for Maintenance and Support.......... 26
I. Coverage....................................................... 26
II. Description of Software Maintenance............................ 26
A. Access to TIBCO Support Centers in London and Palo Alto..... 26
B. Remedial Maintenance........................................ 26
C. Software Updates and Enhancements........................... 27
III. On-Site Support................................................ 28
IV. Per Call Support............................................... 29
V. Time and Materials Services.................................... 29
A. For Non-TIBCO Problems...................................... 29
B. For Non-TIBCO Software...................................... 29
VI. Access......................................................... 29
VII. Problem Reporting and Tracking Procedures...................... 30
VIII. Payment........................................................ 30
IX. Support Agreement Number....................................... 30
Exhibit D: Contract Coordination Procedures............................... 31
1. Organization................................................... 31
1.1 CGS Contract Representatives.............................. 31
</TABLE>
2
<PAGE>
<TABLE>
<S> <C>
1.2 TIBCO Contract Representatives.............................. 31
1.3 Work Order Managers......................................... 31
1.4 Production and Maintenance Managers......................... 32
1.5 Management Arbitration Board................................ 32
1.6 Work Order Organization..................................... 32
2. Correspondence.................................................... 33
2.1 General Procedures......................................... 33
2.2 Addresses.................................................. 33
3. Meetings.......................................................... 34
3.1 Progress Meetings.......................................... 34
3.2 Contract Commitments....................................... 34
3.3 Work Order Progress/Technical Review Meetings.............. 34
4. Reporting......................................................... 34
4.1 Methodologies and Reporting................................ 34
5. Travel............................................................ 34
5.1 Visits to Europe by TIBCO Personnel........................ 34
5.2 Visits to Palo Alto by CGS Personnel....................... 35
5.3 Long Term Assignments...................................... 35
6. Work Order Proposals.............................................. 35
6.1 Origination................................................ 35
6.2 Request for Work Order Proposal............................ 35
6.3 Submission of Work Order Proposals......................... 36
6.4 Approval of Work Order Proposals.......................... 37
7. Work Order Management............................................. 37
7.1 Initiation................................................. 37
7.2 Quality Management......................................... 37
7.3 Work Order Change Management............................... 38
7.4 Work Order Acceptance...................................... 38
7.5 Training................................................... 39
7.6 Documentation.............................................. 39
8. Invoicing......................................................... 40
8.1 General.................................................... 40
8.2 License Fees and Maintenance............................... 40
8.3 Work Order Invoices........................................ 40
9.0 Administrative Charges................................................. 41
Exhibit E: Contract Price............................................. 42
Schedule 1: License Fees............................................... 42
Schedule 2: Maintenance Fees........................................... 42
2.1 Base Fees.................................................. 42
2.2 Maintenance Fee Escalation................................. 43
Schedule 3. CGS Funded Development Projects............................ 43
3.1 Work Orders................................................ 43
3.2 Time & Materials [T&M]..................................... 44
3.3 Charges Plus a Fixed Profit Work Orders [CPFP]............. 45
3.4 Adjusted Charges Work Orders [AC].......................... 45
3.5 Total Estimated Charge..................................... 45
</TABLE>
3
<PAGE>
<TABLE>
<S> <C>
3.6 Fixed Price Work Orders [FP].............................. 46
3.7 Rate Escalation............................................ 46
3.8 Equipment Purchase Through Work Orders..................... 46
3.9 Expense Policy............................................. 47
Schedule 4. Payment.................................................... 48
Exhibit F: Work Order Procedures...................................... 49
Exhibit G: Protected Jurisdictions.................................... 50
Exhibit H: TIBCO Shrink Wrap End User License Agreement............... 51
Exhibit I: Year 2000 Warranty......................................... 52
Exhibit J: Individual Confidentiality Agreement....................... 55
</TABLE>
4
<PAGE>
SOFTWARE LICENSE AND DEVELOPMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into by and between TIBCO
Software Inc., a Delaware corporation, (hereinafter called "TIBCO") and Cedel
Global Services, societe anonyme, (hereinafter, together with its Affiliates,
called "CGS") and made effective as of the last date signed below (the
"Effective Date").
WHEREAS, Cedel, societe anonyme and Teknekron Software Systems, Inc.
entered into a Software License and Development Agreement effective July 11,
1994, as amended via letters dated December 11, 1995 and March 6, 1998 (the
"Prior Agreement"), which Prior Agreement the parties desire to be replaced and
superseded by this Agreement, exclusive of all outstanding work orders and
payment obligations under the Prior Agreement which will remain in effect;
WHEREAS, this Agreement provides for CGS's payment of additional fees in
consideration for the right to use the Licensed Software, as defined below,
throughout the term of the Agreement for: (i) CGS's internal use, (ii)
distribution as an embedded component in CGS's applications and (iii) in
connection with Outsourcing, as defined in Article V below, all as more fully
described below;
WHEREAS, CGS has established itself as a technology and services provider
in securities clearing and settlement, banking, and the financial community and
desires to develop and market new technology solutions to its core business
areas;
WHEREAS, CGS and TIBCO desire to continue their strategic relationship,
the purpose of which is to migrate CGS' technology infrastructure from its
existing proprietary platforms to open systems, provide CGS' management a look-
ahead at new technologies and techniques, and improve CGS' business and market
position through technology; and
WHEREAS, TIBCO has the technical and professional capability,
qualifications and existing technology required to design, develop and install
an integrated system and desires to work with CGS to develop and market new
technology solutions.
NOW THEREFORE, in consideration of the mutual covenants contained in this
Agreement, the parties hereby agree to adjust their long-term strategic
relationship as follows:
I. Definitions
A. "Affiliate": An entity which conducts as its principal businesses the
Strategic Businesses and which now or in the future directly or indirectly
owns or controls fifty percent (50%) or more, or is fifty percent (50%) or
more owned or controlled by, or is under common control with Cedel
International, or an entity in the clearing and settlement industry which
is at least 20% owned and controlled by Cedel International.
B. "Agreement": This Software License and Development Agreement between TIBCO
and CGS, including all Exhibits hereto which are incorporated herein for
all purposes.
5
<PAGE>
C. "Cedelbank": Cedel s.a. which changed its name and status with effect on 1
January 1995 and which is an Affiliate.
D. "Cedel International": A Luxembourg company that owns or controls fifty
percent (50%) or more of CGS.
E. "Cedel International and its Subsidiaries": Cedel International and its
Affiliates, including CGS.
F. "Existing Software": Existing TIBCO products which are licensed to the
general public and are listed on Exhibit A.
G. "Future Products": All future software products developed or acquired by
TIBCO during the term of this Agreement which are offered for licensing to
the public and not developed pursuant to this Agreement.
H. "Generic Applications": Generic Business Applications, and Generic
Technical Applications, as defined below in Article IV of this Agreement.
I. "Licensed Software": Existing Software, Future Products, Generic
Applications, and Third Party Materials.
J. "Productized Software": Generic Applications which are offered for sale or
license by TIBCO to a third party.
K. "Software": Licensed Software and CGS Applications.
L. "Strategic Businesses": The Capital Market Services of Cedel International
and its subsidiaries as outlined in the chart attached as Exhibit B, plus
Collateral Services and Information Dissemination within the context of the
Capital Market Services. It is understood that Cedel International and its
subsidiaries may add additional services from time to time. CGS's license
rights under this Agreement with respect to those additional services shall
be subject to separate discussions and mutual agreement at the time.
M. "Third Party Materials": Software obtained by TIBCO from third parties which
is included in its Existing Software and/or Future Products.
N. "Work Order": Documentation of the services to be performed and Software to
be delivered by TIBCO for CGS under the terms of this Agreement as more
specifically set forth in Exhibit D hereof.
6
<PAGE>
II. Scope of Services
TIBCO will perform all services under this Agreement pursuant to Work Orders
established in accordance with the procedures and provisions set forth in
Exhibit D. All such Work Orders will be performed on one of the following
contractual forms:
A. "Fixed Price": Tasks specified with sufficient certainty to enable the
establishment of a fixed price for performance.
B. "Time and Materials": Tasks which require development which, by its
nature, contains uncertainties which preclude establishing a fixed price.
Charges for performance are charged at the TIBCO standard billing rate as
set forth in Exhibit E.
C. "Charges Plus a Fixed Profit": Tasks which contain some uncertainty.
This form will provide for the recovery of all charges for performance
(TIBCO standard billing rates minus a predetermined profit percentage) as
specifically set forth in Exhibit E and the payment of a pre-established
fixed sum for profit ("Fixed Profit") which is not dependent upon the
amount of actual charges incurred.
D. "Adjusted Charges": Tasks which contain some uncertainty. This form
provides for TIBCO standard billing rates minus a specified percent for
corporate allocation plus a Fixed Profit plus a fixed amount for corporate
allocation. The terms of this form are the same as for the Charges Plus a
Fixed Profit contract form.
For all Fixed Price Work Orders, TIBCO will perform the services, deliver on
the scheduled dates, and install the Software as set forth therein, and time
shall be of the essence, unless otherwise stated in the Work Order. For all
other Work Orders such services, deliveries and installation will be
performed on a "best commercially reasonable efforts" basis, unless otherwise
stated on the Work Order.
In the event the parties are unable to agree on which of the four contract
forms are applicable to any particular Work Order, the issue shall be
resolved by the Management Arbitration Board. The parties will endeavor in
such instance to establish specifications for each Work Order that will
enable TIBCO to use Fixed Price, Adjusted Charges or Charges Plus a Fixed
Profit Work Orders.
CGS agrees to timely complete all CGS tasks identified in Work Orders.
Except for employment of its affiliates, TIBCO shall not employ any
subcontractors for the performance of this Agreement or any Work Order
without the prior written consent of CGS; excluding, however, individual
consultants working under the control and management of TIBCO.
All Work Orders shall be delivered by CGS to TIBCO and shall be effective
only upon and at the time of written acceptance of the Work Order by each
party as indicated by the signature of the authorized officer of each party.
7
<PAGE>
Maintenance and support of the Existing Software and Future Products shall be
performed by TIBCO pursuant to the Maintenance and Support provisions
attached hereto as Exhibit C.
Maintenance of all Productized Software shall be covered by the fee specified
in Exhibit C. Upon delivery of source code to CGS, TIBCO shall have no
maintenance obligations for such software, including version compatibility,
unless such obligation is established in a Work Order.
III. Taxes
Except as specified below in this paragraph, CGS agrees to indemnify and hold
TIBCO harmless from any taxes including, but not limited to, sales tax, use
tax, withholding, value-added or similar tax, and property taxes that may be
assessed or levied by any jurisdiction arising out of the performance of this
Agreement but excluding any taxes based upon or determined by reference to
TIBCO's income or level of business activity ("Taxes"). TIBCO shall identify
in the Work Order all taxes that will be incurred with regard to delivery of
the products into the United States, the United Kingdom and Luxembourg, which
identified Taxes shall be the obligation of CGS. All taxes incurred in
excess of such identified Taxes with regard to delivery of the products into
the United States, the United Kingdom or Luxembourg shall be paid by TIBCO.
Notwithstanding the foregoing, TIBCO agrees that its invoices will be all
inclusive. No additional Taxes (except VAT) shall be borne by CGS.
IV. Title
TIBCO shall retain right, title and interest to and all intellectual property
rights embodied in its Existing Software and Future Products, systems design
and documentation and all modifications, extensions and improvements thereto
(provided however that the parties acknowledge that CGS Applications as
defined below shall not be deemed to be modifications, extensions and
improvements to the Existing Software and Future Software).
During the course of performance, new software applications will be developed
either by TIBCO solely or jointly with CGS. Each Work Order shall identify
each component of the software to be developed in accordance with the
following descriptions, and the rights thereto as set forth herein shall
apply.
A. CGS Applications:
Those applications and other system software which are designed for CGS's
specific approach to its business operations. An example of such an
application is the algorithm for Cedelbank's securities loan operation.
All right, title and interest to and all intellectual property rights in
CGS Applications and all modifications, upgrades, improvements, and
derivative products shall be assigned and conveyed exclusively to CGS.
TIBCO will at CGS's cost do all things reasonably necessary to assist CGS
in perfecting such rights. TIBCO will deliver the source
8
<PAGE>
code to such software and CGS will be responsible for maintenance at the
completion of the warranty period.
B. Generic Business Applications:
Those applications which embody functions or logic which pertain to business
operations that are not specific to CGS's approach to its business
operations. An example of such an application is one which calculates yield
to maturity for a corporate bond. Except as provided for specifically in
the Work Order originating the application, all right, title and interest to
and all intellectual property rights in Generic Business Applications shall
be assigned and conveyed exclusively to TIBCO. CGS will at TIBCO's cost do
all things reasonably necessary to assist TIBCO in perfecting such rights.
TIBCO will deliver the source code to Generic Business Applications and CGS
will be responsible for maintenance at the completion of the warranty
period.
C. Generic Technical Applications:
Those applications which embody functions or logic which do not pertain to
business operations. An example of a Generic Technical Application is an
algorithm which traverses in representation in memory of a directed graph
or, for another example, the VSAM-TIB Adapter. All right, title and
interest to and all intellectual property rights in Generic Technical
Applications shall be assigned and conveyed exclusively to TIBCO. CGS will
at TIBCO's cost do all things reasonably necessary to assist TIBCO in
perfecting such rights. CGS shall have the right at time of award of any
Work Order to request source code to Generic Technical Applications
developed thereunder. If TIBCO agrees to such request then CGS's source
code rights shall be documented in the Work Order. Where such documentation
is not contained in the Work Order TIBCO shall be responsible for
maintenance (at no additional charge to CGS) and CGS shall not have the
right to receive source code.
Subject to the provisions of this Article IV, the parties agree as outlined
below regarding intellectual property ownership rights of the following
components of the Stargate project:
[ * ]
V. License
TIBCO hereby grants, and CGS hereby accepts, subject to the terms and
conditions of this Agreement, a perpetual, non-exclusive and non-transferable
license to use the: [ * ] Subject to the provisions of the following
paragraph, CGS shall not permit any third party to use the Licensed Software.
Authorized agents or contractors of CGS acting for CGS shall not be
considered "third parties" for purposes of such limitation provided, however
that disclosure of TIBCO confidential information to such agents or
contractors will be subject to the provisions of Article XVIII
"Confidentiality." Except for source code provided to CGS pursuant to the
terms of this Agreement, CGS shall not, either directly, or through a third
party, reverse engineer,
[ * ] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
9
<PAGE>
disassemble or decompile any software provided by TIBCO, or make any attempt
in any fashion to obtain the source code to any Licensed Software.
In addition to the foregoing internal use license and the internal use
licenses granted pursuant to the Prior Agreement, CGS shall have the right to
[ * ] For purposes of this Agreement, "Outsourcing" is a service in which CGS
provides business processes and/or automation services of securities clearing
and settlement of financial transactions for its customers. The Solutions
shall only be provided to CGS's customers in object code versions. CGS is not
permitted to distribute the Existing Software and Future Products on a stand
alone basis and shall ensure that such Existing Software and Future Products
are embedded such that the APIs in such products are not exposed to
customers. CGS will distribute the Solutions only to customers who have
agreed to be bound by provisions substantially similar to those contained
within TIBCO's shrink-wrap end user license agreement attached to this
Agreement as Exhibit H. In no event will the license granted under this
Article V extend to third party products resold by TIBCO.
In connection with the foregoing distribution right of CGS's Solutions, CGS
agrees:
(i) to indemnify TIBCO and hold TIBCO harmless from and defend any claim,
suit or proceeding, and pay any settlement amounts or damages awarded by a
court of final jurisdiction arising out of third party claims resulting from
CGS's distribution of its Solutions, and
(ii) to be responsible for providing first line and second line technical
support and maintenance to its customers. First and second line technical
support second line technical support and maintenance shall include the
manufacture and distribution of all enhancements, bug fixes, updates, new
versions or any other modifications made for the Licensed Software as well as
responding to requests for technical assistance from customers. CGS's
customers may not seek support directly from TIBCO. Provided CGS purchases
maintenance and support from TIBCO, as set forth on Exhibit C, TIBCO shall
provide third line technical support to two (2) individuals named by CGS
through TIBCO's technical support center. CGS shall use best commercially
reasonable efforts to isolate the problem and create a reproducible test case
before contacting TIBCO.
VI. Marketing of Products and Royalties
Except as otherwise provided herein, and subject to the Confidentiality
provisions of this Agreement, TIBCO shall have the exclusive right to market
Generic Applications. TIBCO shall, upon completion of a sale or licensing of
such Generic Applications, (which definition shall at all times exclude
Existing Software and Future Software and enhancements, modifications,
extensions or improvements thereto) and full payment therefor, grant to CGS a
royalty in the amount of [ * ] percent ([ *] %) of the sale price or license
fee received (exclusive of taxes, reimbursable costs, Third Party Materials
and any development charges to the customer associated with such sale or
license). Amounts due to CGS as royalties shall be offset as a credit against
labor to be performed by TIBCO pursuant to future Work Orders. At the
completion of the contract term, and any extensions thereof, if there remain
any royalties due CGS which have
[ * ] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
10
<PAGE>
not been offset as set forth, such royalties shall be offset against any
residual incentives earned by TIBCO which have not been paid. If after such
offset there remain royalties due CGS, entitlement thereto shall be deemed
discharged. Notwithstanding anything contained herein to the contrary, the
amount of the royalty payable by TIBCO to CGS shall not exceed the cost paid
to TIBCO to develop each such new technology component involved, exclusive of
payments to third parties and expenses. The development cost thereof shall be
equitably determined by the parties and allocated to each and every Work
Order under which such component was developed. When CGS's contribution is
less than one hundred percent (100%) of the development cost, the royalty
shall be prorated accordingly.
CGS shall have the right with respect to any Generic Applications developed
pursuant to this Agreement which TIBCO does not desire to become Productized
Software to market and sell such software to third parties one year following
acceptance thereof (and in such event CGS shall have the right to receive the
source code for all such Generic Technical Applications). TIBCO has the
right to determine whether any such software shall become Productized
Software until the conclusion of the aforesaid one year period following
acceptance of each such software component.
To the extent that TIBCO desires to market to third parties any software
developed hereunder which contains proprietary business methods or concepts
of CGS including CGS Applications, TIBCO shall first obtain the written
consent of CGS, which consent may be withheld at CGS's discretion.
VII. Termination
A. TIBCO shall have the right to terminate this Agreement or any specific
Work Order and license(s) granted herein:
(a). Upon written notice in the event that CGS, its officers or employees
violate any material provision of this Agreement or any Work Order
including, but not limited to, confidentiality and payment, provided
that TIBCO is in compliance in all material respects with the terms
of this Agreement. TIBCO shall first give a written notice of
default by certified mail ("Default Notice") to CGS. The Default
Notice must be clearly identified as such, and be referenced to this
Article VII and specify in detail the basis for the alleged material
breach(es). Except with regard to breaches of confidentiality, CGS
shall have thirty (30) days from receipt of such Default Notice to
correct such breach;
(b). In the event CGS (i) terminates or suspends its business, (ii)
becomes subject to any bankruptcy or insolvency proceedings (which
is not discharged within ninety (90) days), or (iii) becomes
insolvent or becomes subject to direct control by a trustee,
receiver or similar authority.
In the event of termination by reason of CGS's failure to substantially
comply with any material part of this Agreement or a Work Order, or upon
any act which shall give rise to TIBCO's termination right, TIBCO shall
have the right to terminate the license(s) and take
11
<PAGE>
immediate possession of the Future Products and Upgrades to Existing
Software licensed pursuant to this Agreement and documentation and all
copies wherever located, without additional demand or notice. Within five
(5) days after termination of the license(s) as provided above, CGS will
return to TIBCO the Licensed Software in the form provided by TIBCO or as
modified by CGS at CGS's cost, or upon request by TIBCO destroy the
Licensed Software and all copies, and certify in writing that they have
been destroyed. Termination under this Article shall not relieve CGS of
obligations regarding confidentiality of the Licensed Software or
otherwise.
Without limiting any of the above provisions, in the event of termination
as a result of CGS's failure to substantially comply with any of its
obligations under this Agreement, CGS shall continue to be obligated for
any payments, including reasonable termination costs, then due, but shall
not be obligated for any future payments due under the schedules in
Exhibit E. Termination of the license(s) shall be in addition to and not
in lieu of any equitable or other remedies available to TIBCO.
B. Upon a breach by TIBCO of a material obligation under a particular Work
Order, or, in the event of such breach of a material obligation of this
Agreement, CGS shall have the right, in addition to any other remedy it
may have with regard to such breach, to terminate this Agreement, or any
particular Work Order pursuant to the procedures of this sub-article B.
CGS shall first give a written notice of default by certified mail
("Default Notice") to TIBCO. The Default Notice must be clearly
identified as such, and be referenced to this Article VII and specify in
detail the basis for the alleged material breach(es) and the specific
Work Order involved. TIBCO shall cure such breach within thirty (30)
days of receipt of such Default Notice, provided however that if such
breach is not cured within thirty (30) days despite TIBCO's best
commercially reasonable efforts then TIBCO shall have one hundred and
eighty (180) days from receipt of the Default Notice to cure such breach,
which cure shall be effected diligently. If TIBCO does not cure such
breach(es) within the allotted time, CGS may terminate the applicable
Work Order or the Agreement as the case may be for cause by giving a
written notice of termination by certified mail ("Notice of Termination")
to TIBCO, which may include a termination date corresponding to the date
of the Notice of Termination. The notice and cure provisions set forth
herein constitute a condition precedent to the exercise of any legal
rights and remedies alternative to termination.
In the event of termination of the Agreement (as distinguished from Work
Orders), CGS shall have the option of retaining its rights under this
Agreement to the Software delivered up to the effective date of
termination with no further payment of license fees due past the
effective date of termination. However, no additional Software will be
licensed. In the event that CGS elects to retain use of the licenses,
the Maintenance Fee Schedule in Exhibit E (Schedule 2) shall survive such
termination in the event CGS elects to continue purchasing such services
for the Software.
In the event of such termination of a Work Order, TIBCO shall refund any
fees paid applicable to the Work Order(s) then terminated (subject to
Article XVI "Limitation of
12
<PAGE>
Liability"). Upon such termination and repayment, the parties hereto
shall be discharged of all further liabilities under such Work Order(s).
C. CGS shall have the right to terminate this Agreement and all current Work
Orders in the event TIBCO (i) terminates or suspends its business; (ii)
becomes subject to any bankruptcy or insolvency proceeding under federal
or state statute (which is not discharged within ninety (90) days); or
(iii) becomes insolvent or becomes subject to direct control by a
trustee, receiver or similar authority. In such event, CGS shall retain
the license to the Licensed Software then delivered.
VIII. Warranties
A. TIBCO warrants that for thirty (30) days following acceptance, all
deliverables, exclusive of any Third Party Materials, will conform in all
material respects to the level of performance as accepted on the date of
acceptance ("Warranty"). TIBCO's sole obligation under the Warranty is
to use its best commercially reasonable efforts to correct in a timely
manner any defect. The warranty period for non-productized software
which is not released to production upon acceptance will commence upon
release to production. TIBCO maintenance obligations for Exhibit A
items, or subsequent revisions thereof, commence upon delivery to CGS.
All generally commercially available Existing Software is accepted upon
delivery to CGS.
If a defect occurs in regard to Software or other deliverables which have
been charged on other than a Fixed Price basis, then CGS shall pay the
cost of any warranty work on a Adjusted Charges basis. If the Software
or other deliverables were charged on a Fixed Price basis, then such
warranty work is included in the fixed price. Notwithstanding the
foregoing, in the event that TIBCO determines that the Software or other
deliverables are not defective in such respect, CGS shall reimburse TIBCO
for its services at the T&M rates set forth in Exhibit E.
To the extent its agreement with a supplier of Third Party Materials
permits, TIBCO shall pass through to CGS any performance warranty
relative to such Third Party Materials; provided, however, that TIBCO
makes no additional or supplemental warranty with respect thereto.
B. TIBCO warrants that it is the exclusive owner of all right, title and
interest in the Software, and, with respect to Third Party Materials
incorporated in the Software, it has the necessary rights to license such
software to CGS. TIBCO warrants that the Software does not infringe the
proprietary rights of any third party; provided, however, the parties
agree that the sole and exclusive remedy for any such infringement shall
be the proprietary rights indemnification as contained in article XIII
below.
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<PAGE>
C. TIBCO warrants that TIBCO's technical and consulting services will be of
a professional quality conforming to the highest industry standards and
practices and that TIBCO has the necessary capability, including
developmental tools, to perform the services required under this
Agreement or any Work Order.
D. The Warranty does not cover defects or nonperformance due to causes and
products external to the Software, and is not valid with respect to such
defects or nonperformance. However, TIBCO warrants that the Software
will perform to the accepted level of performance when utilized with the
specified or agreed operating system and operating environment.
E. If the deliverables are not in substantial compliance with the Warranty
at the end of the Warranty Period, TIBCO shall extend the Warranty Period
until the deliverables are brought into such compliance.
F. If, before the end of the warranty period, CGS modifies the Licensed
Software, without consultation and agreement with TIBCO, or the operating
system is changed or other conditions of the operating environment are
changed which impact the Licensed Software, this Warranty shall
immediately be terminated. Correction for difficulties or defects
traceable to CGS's unauthorized modifications or unauthorized systems
changes shall be billed to CGS at TIBCO's standard Time and Materials
charges.
G. TIBCO makes no warranties with regard to Third Party Materials. Along
with the transfer of title, TIBCO agrees to transfer and assign to CGS
all of TIBCO's rights and interests in and with respect to all purchase
agreements for Third Party Materials being supplied under this Agreement
between TIBCO and other manufacturers and distributors, subject to any
limitations set forth in such agreements relating to such transfers.
TIBCO will execute any documents or instruments reasonably necessary to
effect the transfer and assignment of TIBCO's rights and interests
thereunder. TIBCO makes no representation as to the effectiveness,
adequacy or enforceability of such transferred rights.
H. THE WARRANTIES IN THIS ARTICLE VIII ARE LIMITED WARRANTIES AND ARE THE
ONLY WARRANTIES MADE BY TIBCO. TIBCO MAKES AND CLIENT RECEIVES NO
ADDITIONAL EXPRESS, IMPLIED, OR STATUTORY WARRANTY, INCLUDING, BUT NOT
LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. NEITHER PARTY SHALL HAVE ANY LIABILITY WITH RESPECT TO ITS
OBLIGATIONS UNDER THIS AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY, OR
INCIDENTAL DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
IX. Non-Solicitation of Employees and Non-Competition
A. Each party agrees that, during the period of performance of this
Agreement, and for a period of one year following completion of the
period of performance or termination for
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any reason, it will not solicit for employment or hire the employees of
the other party without such other party's prior written consent thereto.
B. In connection with the Stargate project, TIBCO (exclusive of Reuters
Limited and/or its affiliates/subsidiaries) agrees not to enter into a
substantially similar project with MGT/EOC, Deutsche Borse Clearing or
Sicovam ("Noncompete Commitment") contingent upon the following:
. CGS agrees to promote with TIBCO the success of the Stargate project and
to allow TIBCO to use the Stargate project as a reference and success
story in TIBCO selling, marketing and promotional efforts.
. TIBCO's Noncompete Commitment extends for one year from the planned
implementation date of the Stargate project (whether or not CGS actually
implements on this day). Such planned implementation date will be
mutually agreed in writing by the end of 1999.
. In the event (i) TIBCO terminates this Agreement for any reason or (ii)
CGS terminates this Agreement for cause, TIBCO's Noncompete Commitment
will continue for an eighteen (18) month period following the termination
date of this Agreement.
C. TIBCO's Noncompete Commitment does not extend as a restriction on any of
TIBCO's resellers which are able to resell commercially available
Existing Software on a stand alone basis or as part of any solution the
reseller may develop.
X. Compliance With Law
This Agreement is made subject to any laws, regulations, orders or other
restrictions on the export of the Software, or information about the
Software, which may be imposed at any time or from time to time by the United
States Government. Both parties (i) shall comply with all such laws,
regulations, permits, orders and other restrictions to the extent that they
are applicable; and (ii) CGS shall not, directly or indirectly, export or re-
export (as defined in the United States Export Administration Regulations)
the Software or any information about the Software to any country for which
the United States Government, or any agency thereof, requires an export
license or other governmental approval without first obtaining the same.
In performance of this Agreement, neither party shall knowingly do anything
that will cause the other party to violate any applicable United States law,
rule, regulation or policy and, to the extent not inconsistent therewith, any
other applicable law, rule, regulation and policy. Neither party shall make
any offer, payment, promise or gift, nor shall either party authorize the
same, of any money or any other thing of value, to any person in connection
with the performance of this Agreement while knowing, or having reason to
know, that any portion of such money or value will, either directly or
indirectly, be offered or promised to, or received by, any (i) officer,
employee or other person acting in an official capacity for or on behalf of
any government or any department, agency or instrumentality of such
government; or (ii) any political party or official of such party, or any
candidate for political office. Each party shall indemnify the other
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party and hold it harmless from and against any and all damages, losses,
costs or expenses (including attorney's fees) that such party may suffer or
incur by reason of any unauthorized act by the party, its agents or employees
as set forth in this Article X. Each party shall promptly, upon request,
furnish the other party with such documents and additional assurances as may
be necessary to establish compliance with the terms of this Article X.
TIBCO shall comply with all applicable statutes with respect to labor
employed, and shall protect and indemnify CGS against any payroll taxes or
contributions imposed with respect to employees of TIBCO or any subcontractor
by any applicable law dealing with old age benefits, FICA, unemployment
compensation, health insurance and related subjects. TIBCO and CGS agree
that TIBCO is an independent contractor. TIBCO shall be liable for and
hereby represents and warrants to CGS that all payments and obligations to
subcontractors and suppliers will be timely made and satisfied at all times
during the term of this Agreement, and agrees to indemnify CGS for any loss
to CGS relating to TIBCO's violation of the warranties of this Article,
provided, however, TIBCO is given prompt written notice of any claim or
action and control, authority, information, and reasonable assistance for
defense or settlement thereof; and provided further that CGS shall not settle
such claim, suit or proceeding without the written consent of TIBCO.
XI. Applicable Law
Except for dealings exclusively between TIBCO and any United States
Affiliate, the law of the sovereign country of Luxembourg applies to this
Agreement and the rights, duties and obligations of the parties hereto.
Subject, however, to the provisions of Article XXII of this Agreement, the
courts of Luxembourg shall have jurisdiction of any action arising out of or
relating to this Agreement and each of the parties further irrevocably agrees
to waive any objection to the venue of any such suit or proceeding in
Luxembourg or to in personam jurisdiction, provided that service is
effective. As to dealings exclusively between TIBCO and any United States
Affiliate, subject to the provisions of Article XII, the law of the State of
New York shall apply to this Agreement and the rights, duties and obligations
of such parties and the courts of the State of New York shall have
jurisdiction over such parties and venue shall be deemed proper only in the
courts of the City of New York.
XII. Dispute Resolution
A. To expedite the resolution of legal disputes, either party may as its
sole and exclusive remedy elect to have any dispute arising in connection
with this Agreement resolved under the Rules of Conciliation and
Arbitration of the International Chamber of Commerce then in effect, by
one or more arbitrators appointed in accordance with said Rules, whose
decision shall be binding on the parties. The parties agree to arbitrate
such disputes in Paris, France. Any final arbitration decision may be
enforced in any court of competent jurisdiction.
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B. Notwithstanding the terms of this Article XII to the contrary, in the
event of a breach of confidentiality, the parties may elect in their sole
discretion to proceed with all available equitable relief in any court of
competent jurisdiction.
XIII. Proprietary Rights Indemnity
A. TIBCO shall defend, indemnify and hold harmless CGS with respect to any
claim, CGS demand, cause of action, debt, or liability, including
attorneys' fees, to the extent that such is based upon a claim that the
Software, exclusive of any Third Party Materials, used by CGS within the
scope of the licenses granted hereunder, infringes any Protected
Jurisdiction's patent issued as of the effective date of this Agreement,
any Protected Jurisdiction's copyright, or any trade secret; provided
that TIBCO is promptly notified in writing of such claim and provided
further that TIBCO shall have the exclusive right to control such
defense. The term "Protected Jurisdiction" means any country listed in
Exhibit G, as such Exhibit is amended from time to time at the reasonable
request of CGS. In no event shall CGS settle any claim, lawsuit or
proceeding without TIBCO's prior written approval. In the event of any
such claim, litigation or threat thereof, TIBCO, at its sole option and
expense, may procure for CGS the right to continue to use the Software
or, at its sole option and expense, may replace or modify the Software
with a functionally-compatible, non-infringing system. If such
settlement or such modification is not reasonably practical, after giving
due consideration to all factors including financial expense, TIBCO may
cancel the applicable Work Order and the licenses granted thereunder upon
fifteen (15) days' written notice to CGS and shall refund to CGS the
portion of the License Fee paid to TIBCO by CGS applicable to that
portion of the Software subject to such claim. CGS may, at its own
expense, assist in such defense if it so chooses. Notwithstanding
anything to the contrary contained herein, TIBCO shall have no obligation
under this section XIII.A to the extent any claim of infringement results
from (i) use of the Software in combination with any other product, end
item, or subassembly not intended by TIBCO, (ii) use or incorporation in
the Software of any design, technique or specification which TIBCO can
show was furnished by CGS, if the infringement would not have occurred
but for such combination, incorporation or use, (iii) continued use of
Software by CGS after the later of the date CGS is advised that such use
may constitute infringement or misappropriation, or (iv) any modification
or enhancement to the Software by or on behalf of CGS wherein such
claimed infringement or misappropriation would not have occurred but for
such modification or enhancement.
B. To the extent its agreement with a vendor of Third Party Materials
permits, TIBCO will pass through to CGS any proprietary rights indemnity
relating to such Third Party Materials; provided, however, that TIBCO
gives no additional or supplemental indemnity with respect thereto.
C. The foregoing states the entire liability of TIBCO with respect to the
infringement of any proprietary rights by the Software or any parts
thereof.
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XIV. General Indemnity
The parties acknowledge that it may be necessary for the employees of each to
be present at the facilities of the other for extended periods of time. CGS
agrees to provide the employees of TIBCO with all reasonable facilities and
services to assure that their services may be properly performed. Each party
will instruct its employees to conform with the internal regulations and
procedures of the other party while on such party's premises.
Additionally, each party agrees to indemnify, defend, and save harmless the
other party, its officers, agents and employees from any and all claims and
losses accruing or resulting to any person, firm, or corporation for personal
injury or tangible property damage by reason of the negligence of the first
party in performance of this Agreement.
XV. Insurance
TIBCO certifies, and will provide evidence thereof at CGS's request, that
TIBCO maintains:
A. A standard policy covering the obligations of TIBCO for worker's
compensation insurance pursuant to the laws of California, or such
other jurisdiction as applicable.
B. Liability and property damage insurance covering:
1. Bodily injury liability in the amount of $10,000,000 for each
occurrence and $10,000,000 aggregate.
2. Property injury liability in amount of $10,000,000 for each
occurrence and $10,000,000 aggregate.
XVI. Limitation of Liability
Neither party shall be liable to the other party for cumulative damages for
breaches of this Agreement or of any one or more Work Orders greater than Two
Million Dollars (US$2,000,000.00), provided, however, that the limitation of
this sentence shall not apply to any liability of a party pursuant to Article
XIII "Proprietary Rights Indemnity" and XVIII "Confidentiality" of this
Agreement and for such liabilities covered by the insurance defined in
Article XV in which case the limits of such coverage will govern.
XVII. Force Majeure
Neither party shall be liable for default or delay caused by any occurrence
beyond its reasonable control, including but not limited to fires, strikes,
accidents, acts of God. In the event TIBCO
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should be delayed in the completion of any portion of the work by reason of
any such occurrence, the time within which the portion of work is to be
completed shall be extended by the period of such delay, but no such
extension shall be made unless a notice thereof is presented by TIBCO to CGS
in writing within ten (10) working days after the occurrence of such delay
and no payment shall be made by CGS to TIBCO for any expenses incurred by
TIBCO by reason of any such default or delay.
XVIII. Confidentiality
All information concerning TIBCO and Cedel International and its subsidiaries
or any affiliate or subsidiary thereof or of the Software, designated as
"Confidential" and/or "Proprietary" at the time of disclosure ("Confidential
Information") and any financial models developed or used by CGS which TIBCO
may acquire in connection with the performance of services under this
Agreement, shall at all times and for all purposes be regarded as
confidential and held in trust solely for the benefit and use of TIBCO or
CGS, as appropriate for purposes of this Agreement; and neither TIBCO nor CGS
shall disclose, directly or indirectly, any such information to any other
person, firm or corporation, except the authorized agents of each party
without the prior written consent of the other party. All employees, agents
and contractors of each party shall enter into confidentiality agreements
with such party that protect the Confidential Information of the other party
from being disclosed. CGS may require TIBCO to directly furnish its agents
or contractors with Confidential Information. As additional consideration
for TIBCO's approval of disclosure to CGS's agents or contractors, either
directly by CGS, or by TIBCO at the direction of CGS, CGS promises and agrees
to indemnify TIBCO for any and all damages TIBCO may sustain resulting from
unauthorized use and or disclosure of Confidential Information by CGS's
agents and contractors. Such damages shall include all of TIBCO's reasonable
expenses incurred in seeking both legal and equitable remedies. TIBCO agrees
to notify CGS of any claim hereunder and to cooperate with CGS in pursuing
any actions against the agent or contractor involved. If Confidential
Information is communicated orally, such communication shall be confirmed as
Confidential Information in writing within thirty (30) days of such
disclosure. TIBCO and CGS shall cause their officers, employees, agents
and/or representatives to take such action which may be necessary and/or
advisable to preserve and protect the confidentiality of information obtained
by TIBCO or CGS in connection with this Agreement. No actions taken in
reference to acceptance or payment will relieve either party of its
obligations regarding confidentiality. Notwithstanding the above, nothing
herein shall be construed as Confidential Information which, at the time of
its disclosure (a) was known to the party to whom disclosed, or after such
disclosure becomes generally known or published without any violations of any
provisions hereof, (b) is lawfully disclosed by a third party, (c) is
independently developed by a party, or (d) is released pursuant to the order
of a court of competent jurisdiction or governmental agency. In the event
that TIBCO conducts any business with an entity that conducts as its
principal business the clearing and settlement of securities, TIBCO shall
notify CGS prior to disclosing to such entity any information derived from
its conduct of this Agreement concerning CGS or its business or software
systems and CGS shall determine in its sole discretion whether such
information is "Confidential Information". TIBCO employees working at CGS'
premises with access to Confidential Information will be required to sign an
individual confidentiality agreement in the form and substance attached to
this Agreement as Exhibit J.
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Notwithstanding the restrictions of this Article XVIII, TIBCO or CGS may
announce the parties' relationship in a press release subject to the
reasonable approval of the other party.
XIX. Notices
All notices, approvals, consents, requests, demands, or other communication
to be given to either party shall be given in accordance with Exhibit D.
XX. Assignment
This Agreement shall be binding upon and inure to the benefit of the parties'
respective successors and permitted assigns. Neither party may assign this
Agreement and/or any of its rights and/or obligations hereunder without the
prior written consent of the other party and any such attempted assignment
shall be void. Notwithstanding the prior sentence, (i) TIBCO may assign this
Agreement and/or any of its rights and/or obligations hereunder, upon written
notice to the other party to an affiliate (which may be its parent company)
in the event of TIBCO's merger or consolidation with such affiliate and (ii)
CGS may assign this Agreement and/or any of its rights and/or obligations
hereunder to any of its Affiliates in the event of CGS's merger or
consolidation with such other Affiliate, each without the consent of the
other party, provided that the assignee is capable of fulfilling and intends
to fulfill the obligations of the assigning party under this Agreement.
TIBCO acknowledges and agrees that the rights granted to CGS hereunder shall
extend to all Affiliates of Cedel International
XXI. General
A. This Agreement constitutes the complete and exclusive statement of the
agreement between the parties as relates to the subject matter and
supersedes all proposals, oral or written, and all other representations,
statements, negotiations and undertakings relating to the subject matter,
hereof.
B. No change in, addition to, or waiver of any of the provisions of this
Agreement shall be binding upon either party unless in writing signed by
an authorized representative of such party. No waiver by either party of
any breach by the other party of any of the provisions of this Agreement
shall be construed as a waiver of that or any other provision on any
other occasion.
C. In the event any one or more of the provisions of this Agreement shall be
held by a court of competent jurisdiction to be invalid, illegal or
unenforceable, the remaining provisions of this Agreement shall remain in
effect and the Agreement shall be read as though the offending provision
had not been written or as the provision shall be determined by such
court to be read.
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D. If, at any time, the provisions of this Agreement are found to be in
conflict with the terms of a Work Order, the terms of the Work Order
shall prevail.
E. The United Nations Convention on Contracts for the International Sale of
Goods is excluded from application hereto.
F. The captions used in this Agreement are inserted for the convenient
reference of the parties and in no way define, limit or describe the
scope or intent of this Agreement or any part hereof.
G. Neither CGS nor TIBCO shall disclose the contents of this Agreement to
third parties, except Reuters Ltd, unless required to do so by legal
proceedings.
H. This document, its contents, Exhibits, Attachments, and Amendments, and
any and all correspondence and deliverables related thereto shall be
considered and treated as Confidential Information in the sense of
Article XVIII.
I. Dates or times by which TIBCO is required to make performance under this
Agreement shall be postponed automatically for so long as TIBCO is
prevented from meeting them by causes which are CGS's responsibility.
J. The prevailing party in a controversy or claim shall have the right to
collect its reasonable expenses incurred in enforcing this Agreement,
including reasonable attorney's fees.
K. This Agreement may be executed in two original counterparts, which
together shall constitute the same Agreement, but only one of which need
be produced to evidence the Agreement.
L. The parties further agree that the rights and obligations set forth in
the above referenced Articles III, IV, V, VI, VIII, IX, X, XI, XII,
XIII, XIV, XVI, XVIII, XIX, XX and sub-sections A, B, C, D, E, G, H, J,
M, N, O, and this sub-section L of this Article XXI shall survive the
completion or termination of this Agreement for any reason and
enforcement thereof pursuant to this article shall not be subject to any
conditions precedent.
M. The parties agree to execute a three party agreement with Data
Securities, Inc. by which TIBCO will deposit and update the source code
to Licensed Software (excluding Third Party Materials) in escrow with
Data Securities, Inc. for the benefit of CGS. Updates to the escrowed
software will be maintained as long as CGS is under a software
maintenance program with TIBCO.
N. The term of this Agreement shall commence on the Effective Date and end
on December 31, 2000. As stated in the recitals above, this Agreement
supersedes and replaces the Prior Agreement; provided, however, all
outstanding work orders and payment obligations under the Prior Agreement
remain in effect. Nothing in this Agreement shall terminate or impair
any license rights, limitations or obligations in Existing Software
granted under the Prior Agreement that would otherwise survive
termination of the Prior Agreement; except
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for the right to provide input into TIBCO's product priorities, which
right becomes null and void as of the Effective Date of this Agreement.
O. CGS shall be liable for any breach of this agreement by its Affiliates.
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IN WITNESS WHEREOF, each party has caused counterpart original of this Agreement
to be executed, by its authorized representative, as of the last date below
written.
ACCEPTED BY:
Cedel Global Services, societe anonyme TIBCO SOFTWARE INC.
By ____________________________ By:___________________________
Signature Signature
Print Name:____________________ Print Name:___________________
Title:_________________________ Title:________________________
Date:__________________________ Date:_________________________
By ____________________________
Signature
Print Name:____________________
Title:_________________________
Date:__________________________
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Exhibit A: Existing Software
[ * ]
[ * ] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
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Exhibit B: Capital Market Services of Cedel International and its subsidiaries
The "Capital Market Services" of Cedel International and its subsidiaries are
illustrated on the following chart, such services performed directly or as an
Outsourcing service subject to the provisions of Article V:
[ * ]
[ * ] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
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Exhibit C: TIBCO Standard Provisions for Maintenance and Support
I. Coverage
This Exhibit covers the Licensed Software listed on Exhibit A, or subsequent
revisions thereof, plus other Software delivered under this Agreement where
the source code has not been released to CGS. For the purposes of this
Exhibit, the term "Licensed Software" shall be limited to the software
described above. All such Licensed Software is only covered when utilized
with the specified or agreed operating system and operating environment.
Licensed Software does not include hardware vendor operating systems and
other system software, client-developed software, or third-party software
unless supplied by TIBCO.
II. Description of Software Maintenance
Software maintenance supported under this Agreement ("Software Maintenance")
consists of the following:
A. Access to TIBCO Support Centers in London and Palo Alto.
The Support Centers HOTLINES operate during the following hours, 7:00 a.m.,
GMT (or GMT plus one hour for European Summer Time) to 7:00 p.m., Pacific
Time, Monday through Friday, excluding legal holidays. Extended coverage is
available for an additional fee unless such coverage is generally provided
to other TIBCO customers at no fee for such extended coverage. The HOTLINES
can be used to notify TIBCO of problems associated with the Licensed
Software and related documentation. on contacting the support center(s),
authorized CGS staff will be connected directly to knowledgeable support
engineers by telephone. The TIBCO Support Center HOTLINES can be used for
questions regarding the use and operation of the Licensed Software.
B. Remedial Maintenance.
Upon receipt by TIBCO of notice from CGS through the Support Center HOTLINE,
or a designated on-site support contact, of an error, defect, malfunction or
nonconformity in the Licensed Software, TIBCO shall respond as provided
below:
Severity 1: Produces an emergency situation in which the Licensed
Software is inoperable, produces incorrect results, or fails
catastrophically.
RESPONSE: TIBCO will provide a response by a qualified member of its
staff to begin to diagnose and to correct a Severity 1 problem as
soon as reasonably possible, but in any event a response via
telephone will be provided within one (1) hour with the aim of
providing a work-around to reinstate production operations within two
(2) hours. TIBCO will continue to provide best efforts to resolve
Severity 1 problems in less than forty-eight (48) hours. The
resolution will be delivered to CGS as a work-
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around and/or as an emergency software fix. If TIBCO delivers an
acceptable work-around, the severity classification will drop to a
Severity 2.
Severity 2: Produces a detrimental situation in which performance
(throughput or response) of the Licensed Software degrades substantially
under reasonable loads, such that there is a severe impact on use; the
Licensed Software is usable, but materially incomplete; one or more
mainline functions or commands is inoperable; or the use is otherwise
significantly impacted.
RESPONSE: TIBCO will provide a response by a qualified member of its
staff to begin to diagnose and to correct a Severity 2 problem as
soon as reasonable possible, but in any event a response via
telephone will be provided with four (4) hours. TIBCO will exercise
best commercially reasonable efforts to resolve Severity 2 problems
within five (5) days. The resolution will be delivered to CGS in the
same format as Severity 1 problems. If TIBCO delivers an acceptable
work-around for a Severity 2 problem, the severity classification
will drop to a Severity 3.
Severity 3: Produces an inconvenient situation in which the Licensed
Software is usable, but does not provide a function in the most
convenient or expeditious manner, and the user suffers little or no
significant impact.
RESPONSE: TIBCO will exercise reasonable commercial efforts to resolve
Severity 3 problems in the next maintenance release.
Severity 4: Produces a noticeable situation in which the use is affected
in some way which is reasonably correctable by a documentation change or
by a future, regular release from TIBCO.
RESPONSE: TIBCO will provide, as agreed by the parties, a fix or fixes
for Severity 4 problems in future maintenance releases.
C. Software Updates and Enhancements.
Software updates and enhancements are provided for the Licensed Software
listed in Exhibit A, or subsequent revisions thereof. Software updates and
enhancements will be provided on an as-available basis and include the items
listed below:
(1) Bug fixes;
(2) Enhancements to market data service software provided by TIBCO to keep
current with changes in market data services or as TIBCO makes
enhancements;
(3) Enhancements to keep current with the current hardware vendor's OS
releases, as available from TIBCO, provided that the current hardware
vendor's OS release is both binary and source-compatible with the OS
release currently supported by TIBCO; and
(4) Performance enhancements to Licensed Software.
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(5) Unless and until software becomes an Exhibit A, software enhancements
do not include:
------
(a) Platform extensions including product extensions to (i) different
-------------------
hardware platforms; (ii) different windowing system platforms;
(iii) different operating system platforms; and
(b) New functions such as (i) new functionality in the TIB or market
-------------
data delivery infra-structure; (ii) new market data feeds; (iii)
new applications; and (iv) new presentation tools.
Software updates and enhancements will be provided in machine-readable
format and updates to related documentation will be provided in hard copy
form. All such deliveries shall be made by a single communication to a
single CGS-designated distribution point specified. Duplication,
distribution and installation of software updates is the responsibility of
CGS. If requested, TIBCO will provide on-site assistance in the
installation of software updates in accordance with sub-section 3.2 of
Exhibit E.
TIBCO will support previous releases for a minimum period of nine (9) months
following the general availability of a new release or software update.
After this time, TIBCO shall have no further responsibility for supporting
and maintaining the prior releases.
TIBCO assumes no responsibility for the correctness of, performance of, or
any resulting incompatibilities with, current or future releases of the
Licensed Software if CGS has made changes to the system hardware/software
configuration or modifications to any supplied source code which changes
effect the performance of the Licensed Software and were made without prior
notification and written agreement with TIBCO. TIBCO assumes no
responsibility for the operation or performance of any CGS Application or
third-party application not provided by TIBCO.
III. On-Site Support
As requested by CGS, and upon reasonable notice and agreement with TIBCO,
TIBCO shall maintain personnel at any of the Covered Sites in accordance with
the terms of sub-section 3.2 of Exhibit E. On-site personnel will perform
ongoing system administration, monitoring, reconfiguration and tuning,
problem diagnosis, and resolution, and interfacing with CGS personnel on
production system issues, to the extent possible during normal business
hours. These personnel shall also be responsible for the installation of new
TIBCO software releases on the production system and the distribution of
documentation updates. In addition, on-site personnel will provide training
to CGS personnel on the operation and administration of the Licensed Software
as time permits.
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IV. Per Call Support
A. TIBCO shall provide emergency contact numbers that may be used by CGS to
call TIBCO support staff during hours not supported by the HOTLINES
described above. Additionally, TIBCO shall provide CGS with current
remote communication contact numbers to assist out-of-hours contact to
TIBCO support personnel. Out-of-hours calls made to these contact
numbers shall be subject to a call charge consistent with the rates in
sub-section 3.2 of Exhibit E.
B. Visits by TIBCO engineers to the Covered Sites can be provided for non-
maintenance related activities to supplement the services provided under
this Agreement. Tasks performed under Per Call Support include, but are
not limited to, installation of additional hardware, training, and
consulting for non-TIBCO applications. At any time, CGS may request Per
Call Support. All requests will be covered by a Work Order and response
by TIBCO will be on a best commercially reasonable efforts basis. The
minimum call duration is two (2) hours
V. Time and Materials Services
A. For Non-TIBCO Problems.
In the event that CGS notifies TIBCO of a problem experienced by CGS in
connection with the operation of the Licensed Software, TIBCO shall respond
as provided in Section II.B., above. If the cause of such problem is not an
error, defect or nonconformity in the Licensed Software, CGS shall
compensate TIBCO for all work performed by TIBCO in connection therewith, on
a Time and Materials basis in accordance with Exhibit E.
B. For Non-TIBCO Software.
Upon request and reasonable notice from CGS, TIBCO will provide assistance
in the installation of non-TIBCO software as provided for in a Work Order
covering this service. Non-TIBCO software includes the following:
1. New releases and updates to hardware vendor operating systems and other
system software;
2. CGS-developed software; and
3. Third-party software.
VI. Access
Software Maintenance is conditioned upon provision by CGS to TIBCO of
appropriate access to the system(s) running the Licensed Software, including,
but not limited to, passwords, system
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data, file transfer capabilities, and remote log-in-capabilities. TIBCO will
maintain security of the system and use such access only for the purposes of
this Agreement and will comply with CGS's standard security procedures.
CGS shall also provide an active voice telephone line at each site which is
available continuously when required for support access.
VII. Problem Reporting and Tracking Procedures
CGS may use the services described herein only by making reference to the
authorized support Agreement number. All such reports and requests will be
made through the authorized individuals (up to two [2] per site), designated
by the CGS Production Manager. These individuals may be changed by CGS from
time to time by written notice to TIBCO.
VIII. Payment
Fees for all supplemental support options will be invoiced in accordance with
Exhibit D.
IX. Support Agreement Number
TIBCO shall issue to CGS a Maintenance Agreement Number for the purposes of
problem notification.
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Exhibit D: Contract Coordination Procedures
1. Organization
1.1 CGS Contract Representatives
The following representatives are appointed by CGS with responsibility for
this contract:
Technical Manager: Mr. Yves Baguet
Contract Manager: Mr. Steve Quinn
The Technical Manager is responsible for the technical direction of the
work, development of work orders and their acceptance and the resolution of
technical issues relating to the work.
The Contract Manager is responsible for the administration of the contract,
approvals of payments, maintenance of contract files and the resolution of
contract issues relating to the work.
Further responsibilities of the contract representatives are stated in the
Agreement and Exhibits. CGS may change these appointments from time to time
by written notice.
1.2 TIBCO Contract Representatives
Technical Manager (except Stargate): Mr. Malcolm Windsor
Technical Manager (Stargate): Mr. Paul Nordin
Contract Manager: Mr. Murray Rode
European Relationship Manager: To be mutually determined
Contract Administrator: Ms. Pebbie Lee
1.3 Work Order Managers
Both CGS and TIBCO shall appoint, for each Work Order, a Work Order Manager
responsible for the day-to-day technical direction and progress of the work.
The responsibilities of the Work Order Managers are further stated in the
Agreement and the Exhibits.
Once the Work Order is approved, the TIBCO Work Order Manager shall not be
re-assigned or removed from the work, until the acceptance note is issued,
without prior approval from CGS. In all events at least one month's notice
shall be given in the request for approval to change the Work Order Manager.
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1.4 Production and Maintenance Managers
Following acceptance of any software into production, TIBCO shall appoint a
Maintenance Manager to co-ordinate the support services provided under
Exhibit C. Additionally, CGS shall appoint a Production Manager to act as
the point of contact for all maintenance support services. The
responsibilities of these two managers is further stated in the Agreement
and the Exhibits.
1.5 Management Arbitration Board
Both parties shall appoint two members of their management team to act
jointly as a board for escalation and arbitration in the event of dispute
between the parties ("Management Arbitration Board"). The Management
Arbitration Board shall only meet when necessary to resolve a dispute. The
call to convene the Board may be made by either party. Matters that cannot
be resolved by the Board will follow the course laid down in the Agreement
for dispute resolution.
The Management Arbitration Board shall consist of:
For CGS: Mr. Andre Lussi
Mr. Graham Prosser
For TIBCO: Mr. Vivek Ranadive
Mr. Raj Mashruwala
1.6 Work Order Organization
TIBCO shall nominate the key individuals who will be assigned to each Work
Order. Key individuals shall be defined as those individuals of
significance to the work who will be assigned either full time, or the
majority of their time, to the Work Order. TIBCO will not remove any key
individuals from the work without prior written approval from CGS which will
not be unreasonably withheld and a suitable hand-over period to their
replacement. On T&M and other cost reimbursable work orders, CGS will not
pay for any time related to such hand-over.
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2. Correspondence
2.1 General Procedures
Letters may be forwarded by fax for expediency but in this case the fax
shall be a cover only, not the body of the letter. Faxed correspondence
shall also be mailed for record purposes.
Both parties shall maintain a subject log of all correspondence, by number.
Contractual commitments and requests for contractual commitments, including
technical discussions leading to instructions that have any contractual
implications, must be forwarded in writing under cover of letter. Each
letter shall only deal with a single subject.
Email messages that are used to agree contractual issues must be confirmed
by letter before the commitment is deemed to be agreed.
2.2 Addresses
All correspondence addressed to CGS shall be sent to:
The TIBCO Contract Manager
Cedel Global Services
5 Rue Hoehenhof
SenningerbergL--2963 Luxembourg
All correspondence addressed to TIBCO will be sent to:
Mr. Paul Nordin
TIBCO Software Inc.
3165 Porter Drive
Palo Alto, California 94304
All correspondence to TIBCO which addresses legal matters, including
required notices, shall additionally be sent to:
TIBCO Software Inc.
3165 Porter Drive
Palo Alto, California 94304
Attn: General Counsel
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3. Meetings
3.1 Progress Meetings
Progress meetings shall be held throughout the course of performance of each
work order. In general these shall be monthly but other periods may be
agreed upon depending on the nature of the ongoing work.
TIBCO shall be responsible for preparing brief minutes of these meetings
noting action items for both parties. The minutes shall be prepared within
five (5) working days of the meeting and faxed to CGS for agreement. The
progress meetings shall be numbered for reference and separate numbering
systems will be maintained CGS system work.
3.2 Contract Commitments
Contract commitments will not be made at progress meetings. Any agreements
reached at the meeting shall be documented by letter and subject to the
usual approvals. Such agreements will not be contractually binding until
confirmed in writing. Similarly, meetings will not be used to formally
accept products or release progress payments or in any way to circumvent the
written approval process.
3.3 Work Order Progress/Technical Review Meetings
Work Order progress/technical review meetings shall be held as necessary to
review the work. These meetings will only require minutes if documentation
is needed to clarify the results of the meeting. Contractual commitments
cannot be made at Work Order Progress Meetings.
4. Reporting
4.1 Methodologies and Reporting
TIBCO commits to use the AMS time and reporting system where available, and
the use of CGS project and programme management methodologies. CGS will
provide necessary documentation and training for TIBCO to be able to use the
project and programme management methodologies.
5. Travel
5.1 Visits to Europe by TIBCO Personnel
CGS recognizes that the geographic separation of the parties will
necessitate a large degree of travel. Except in response to an emergency
callout, and for local travel, all TIBCO travel, that is to be reimbursed by
CGS must be approved in advance. Travel not so approved will not be
reimbursed. Requests for such travel authorization must be addressed to the
Contract
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Manager, by Email, stating the reason for the visit, its timing and
duration, any facilities required to be arranged (hotel bookings, conference
rooms etc.), CGS staff required to participate in the meetings and the
persons attending from TIBCO. Wherever possible, at least five working days
notice should be given of all visits to allow time for approval. Approval
will be given by Email to the requester, copied to the TIBCO contract
administrator. This Email reference must be used against the expenses claim
when invoicing for travel. Travel expenses must follow the TIBCO's standard
policies and procedures. CGS has the right to audit TIBCO records of
approved travel expenses for the purpose of verifying compliance with these
policies.
5.2 Visits to Palo Alto by CGS Personnel
As required to further the work, CGS personnel will visit TIBCO offices in
Palo Alto. TIBCO shall give CGS personnel every assistance necessary during
their visit and provide reasonable accommodation services at no additional
cost the CGS.
CGS will give five working days notice of visits including a detailed
itinerary and requirements for conference facilities and TIBCO personnel to
attend meetings during the visit.
5.3 Long Term Assignments
For TIBCO personnel required by the nature of the work to spend extended
periods in Europe, CGS will agree an all-inclusive day-rate as set forth in
Schedule 3, section 3.9 below to cover all such travel, living and
disturbance charges for that work period plus extraordinary expenditures
which may include air travel, with CGS's prior approval.
TIBCO shall be responsible, at all times, for complying with legal, tax and
work permit requirements for such work periods. CGS will give TIBCO whatever
assistance it can to achieve this compliance.
TIBCO shall, wherever possible and practical, utilize personnel from its
nearest office to provide candidates for long term assignments.
6. Work Order Proposals
6.1 Origination
Either party may originate an idea for a Work Order. Where the originator
is CGS this will be a "Request for Work Order Proposal". Where the
originator is TIBCO this will be an unsolicited "Work Order Proposal".
6.2 Request for Work Order Proposal
At any time during the course of the Agreement, CGS may issue a Request for
a Work Order Proposal. These requests will be issued under cover of a
letter by the Contract Manager and
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countersigned by the Technical Manager. All Requests for Work Orders will be
issued with a sequential Work Order number for ease of reference.
The Request for Work Order Proposal shall include; the objectives of the
Work Order; the scope and deliverables; the expected development and
implementation schedule; supporting documentation, specifications, and the
like; the suggested location where the services will be performed; the
suggested rate basis for the work, the suggested acceptance test
requirements; and any other information required to clarify the work. Upon
receipt of such Request, TIBCO shall inform the Contract Manager promptly,
via Email, of a date by which it will reply with its offer of services and
any additional information required to prepare its proposal for the work.
TIBCO is encouraged to hold whatever discussions are necessary to clarify
the work and arrive at a firm proposal. TIBCO shall co-ordinate all
discussions with the Technical Manager for CGS system work.
6.3 Submission of Work Order Proposals
TIBCO shall submit all Work Order Proposals to the CGS Contract Manager for
agreement and approval. Proposals that are in response to a CGS request
shall reference that request. Proposals shall include the contract format
as specified in Article II, a statement of the work to be performed and the
schedule for the deliverables; a listing of the productised components (pre-
existing) that will be included in the deliverables; a listing of any Third
Party license restrictions applying to the deliverables; the schedule for
delivery of the output of the Work Order; nomination of the Work Order
Manager and other key individuals that will be used to perform the work;
input requirements from CGS together with schedule dates; infrastructure
requirements to be supplied by CGS together with dates; a proposed
Acceptance Test Plan; proposed warranty criteria and duration, the key tasks
that will be performed in bar chart format together with progress % attached
to the completion of each task; and a schedule, justified by earned
progress, for payment of any fixed price component of the price; and
details, supported by separate quotations, of any exceptional or unique
system components required to complete the work. The price or estimated
charge shall also include an estimate of the travel budget for the work.
The charges for generating the Work Order proposals will be paid by CGS
under a Work Order issued for that purpose. CGS is not bound to accept any
proposals submitted by TIBCO. To the extent that a Work Order designates
specific individuals as "key" individuals, TIBCO will not assign such
individuals to other duties or projects without the approval of CGS. In the
event that such a replacement becomes necessary, then TIBCO will replace
such individual with a person of appropriate qualifications. TIBCO further
agrees that it will maintain the availability of key personnel for a period
of three months following completion of the Work Order and shall assign such
personnel to Work Orders issued within such three-month period as required
by CGS. In consideration thereof, CGS agrees to pay TIBCO for such
personnel during such three-month period when such personnel are not
assigned to a Work Order at the billing rates for such individuals.
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6.4 Approval of Work Order Proposals
Upon receipt of any Work Order proposal, CGS will proceed to reach agreement
to issue approval or clarifications required for approval. CGS will prepare
the final version of the Work Order, incorporating any clarifications and
issue it to TIBCO for agreement. Such issue for agreement shall be
considered an instruction to begin work, if acceptable to TIBCO. No work
shall be performed prior to receipt of this instruction. The Work Order
will be approved for CGS by both the Contract Manager and the Technical
Manager.
Once approved, TIBCO shall include the Work Order on its progress reports.
7. Work Order Management
7.1 Initiation
Upon agreement to proceed with the Work Order, CGS shall appoint a Work
Order Manager to act as the day-to-day co-ordinator on technical issues
relating to the work. The CGS Work Order Manager cannot instruct TIBCO to
change the work or make any contractual commitments outside the terms of the
approved Work Order.
The respective Work Order Managers shall meet to agree upon the detailed
schedule for the Work Order and ensure that their are no open issues without
agreed dates for closure. Open issues or potential problems shall be
brought to the attention of the Technical Manager immediately who will
decide whether the Work Order can commence or should be placed on hold
awaiting resolution of these issues.
7.2 Quality Management
The subject work will, in production, support mission-critical applications
of strategic importance to the world's financial community. Accordingly,
TIBCO is responsible for producing work of the highest quality and ensuring
that this happens through the application of a Quality Management programme
to the output of each Work Order. At the start of each Work Order, TIBCO
shall prepare a Quality Plan for the work, following the procedures
established within TIBCO for such plans, which procedures shall be subject
to review and approval by CGS. As a minimum the Quality Plan shall
identify; organizational roles and responsibilities; working practices to be
used on the work; test plans for the work; and definition of quality
hold/check/inspection points that will be supported by documentation and
approvals. The adherence to the Quality Plan shall be independently
verifiable.
The Quality Plan shall be subject to approval by the CGS Technical Manager,
and audit by CGS's Quality Assurance Manager. The results of such audits and
specific non-compliance's shall be presented to TIBCO for action. Serious
non-compliance may result in suspension of the work pending resolution.
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7.3 Work Order Change Management
In the event that either party believes that a change in the scope of work
of any work order is required, it shall detail such proposed change to the
other party. The parties shall endeavor, in good faith, to amend the work
order to incorporate necessary changes to all the terms and conditions.
Additionally, CGS shall have the unilateral right to issue changes within
the scope of work. No such change can alter the terms of the Agreement,
provide for the assignment of specific named individuals, or determine title
to software components. Such unilateral change orders must be in writing,
signed by a person authorized to contractually obligate CGS, and set forth
all the necessary details, terms, conditions and specifications required for
implementation. Upon receipt of such change order, TIBCO shall acknowledge
and promptly implement same.
In consideration thereof, TIBCO shall be entitled to an equitable adjustment
of all terms and conditions including, as applicable, modification of
specifications or acceptance criteria, delivery schedule, fixed priced,
fixed profit and/or total Estimated Charge for performance. The fixed
profit in CPFP (Charges Plus Fixed Profit) and Adjusted Charges work orders
will not be changed unless there is a fundamental change in the scope of
work. TIBCO shall submit its proposal for equitable adjustment within
thirty days of receipt of such change order and the parties shall endeavor
to negotiate and incorporate such equitable adjustment in a work order
modification as soon as possible. In all cases, TIBCO' obligation to
perform the change is not subject to, or affected by, resolution of TIBCO'
claim for equitable adjustment.
Where possible, the parties shall endeavor to establish such equitable
adjustment modification prior to commencement of performance of the change
order.
7.4 Work Order Acceptance
Following proper installation of the Licensed Software by TIBCO, the parties
will perform the acceptance tests pursuant to the Acceptance Test Plan as
set forth in the applicable Work Order. If the Licensed Software
substantially meets the acceptance tests in all material respects as set
forth in the Acceptance Test Plan, CGS shall notify TIBCO within five (5)
days, and the date of notification shall be the Acceptance Date.
In principle, Acceptance will only be given following successful completion,
by CGS, of the Acceptance Test Plan. If, during the execution of the
Acceptance Test Plan, CGS identifies a substantive reason to alter the
schedule of the Acceptance Test Plan then, upon agreement with TIBCO, the
Acceptance Test Plan shall be extended to cover the additional testing.
Such agreement to extend the Test Plan shall not be unreasonably withheld by
TIBCO. If CGS fails to notify TIBCO of any material defect, or issue an
Acceptance Notice within thirty (30) days of the scheduled end of the
Acceptance Test Plan, or subsequent agreed revisions thereof, the Licensed
Software shall be deemed accepted by CGS.
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If CGS notifies TIBCO in writing and describes in detail to TIBCO that the
Licensed Software does not materially meet the Acceptance Test criteria,
TIBCO shall make corrections and modifications thereto. The charges for
corrections and modifications to components which are included in a Fixed
Price Work Order are included in such Fixed Price. The charges for
corrections and modifications to components included in a T&M Work Order
will be charged on a T&M basis subject to the Total Estimated Charge
therefor set forth in the applicable Work Order. The charges for correction
of components included in other than Fixed Price and T&M Work Orders will be
charged at the adjusted billing rates established for such Work Orders and
subject to the Total Estimated Charge set forth in each such Work Order.
The foregoing will be accomplished on a timely basis to make it ready for
retesting by the parties. The parties shall repeat the Acceptance Test as
soon as reasonably requested by TIBCO and CGS shall notify TIBCO within five
(5) days of such request if and when the Licensed Software is accepted. The
date of notification shall be the Acceptance Date.
In the event the Licensed Software (or parts thereof) does not pass the
Acceptance Test, but is utilized by CGS in a production environment for a
period of thirty (30) days, it shall be deemed accepted for all purposes as
if it had successfully passed the Acceptance Test.
In the event the parties are unable to agree on an acceptance test plan, the
Work Order shall be deemed converted to a unilateral Work Order as provided
in Section 6.5 of this Exhibit.
The issuance of an Acceptance Notice is also contingent on acceptance of
documentation as called out in the Work Order and agreement to the final
form of any Warranty Support that may be provided for in the Work Order.
7.5 Training
TIBCO has an obligation to provide CGS with structured training in
technology and applications, for development, maintenance, and production
administration tasks; the requirements and pricing for specific training as
required shall be stated on a Work Order
7.6 Documentation
TIBCO shall deliver, with the output of the Work Orders, system
documentation, as specified, in a reproducible form and electronically. Two
paper copies will be issued, one bound for record purposes and one unbound
for CGS's copying and internal distribution subject to any third party
copyright restrictions which shall be clearly marked on the documentation.
The system documentation shall include as a minimum, user documentation,
system administration documentation and other documentation needed for CGS
to carryout its operation, support and maintenance responsibilities. All
documentation shall clearly indicate release or revision numbers for cross-
reference to CGS's library management systems.
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8. Invoicing
8.1 General
As set out below, TIBCO shall issue invoices for payment of the services
covered by this Agreement. The invoices shall contain all supporting
documentation, Acceptance Certificates, travel authorizations etc. needed
for CGS to approve promptly the validity of the amounts invoiced and wire
the funds to TIBCO's account (directions for payment should be clearly
stated on the invoice). Where items on any invoice are disputed by CGS, CGS
shall promptly notify TIBCO of the area of the dispute and its value.
Notwithstanding this, CGS shall pay the undisputed portions of all invoices
within 30 days. Invoices should be sent, single copy only, to:
Cedel Global Services
5 Rue Hoehenhof
Senningerberg L-2963 Luxembourg
8.2 License Fees and Maintenance
TIBCO shall, at the beginning of each year for the term of the Agreement,
raise an invoice for the stage payment of the license fees and the yearly
maintenance as set out in Exhibit E.
8.3 Work Order Invoices
8.3.1 Fixed Price and Fixed Fee Work Orders
For fixed price Work Orders and the fixed fee portions of AC and CPFP
Work Orders, the fixed components are invoiced on a stage payment basis
against agreed deliverables. The invoices for these portions shall be
issued, accompanied by proof of deliverable acceptance by CGS, i.e.
acceptance notes, letters, Acceptance Certificates and the like, as and
when such acceptance is agreed. Invoices shall make reference to the
Work Order number and state the details of the stage payment claimed.
8.3.2 Man-hour Charges
T&M Work Orders and the man-hour rate component of AC and CPFP Work
Orders shall be covered by a single invoice issued on a monthly basis.
This invoice shall be broken down by Work Order and shall include the
following information:
1. Name of individual charging and charge category;
2. Number of hours worked in the month of the referenced Work Order;
3. Summary of travel expenses, by name;
4. Details of any other reimbursable schedule items;
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5. Total charge in month and to date.
Details of backup and support documentation will be subject to CGS's
agreement.
8.3.3 Discount from Third Party Sales
Third party sales of new products developed, either wholly or partially,
out of this Agreement are, on an agreed percentage of the sale basis,
allowable as a discount against Work Order charges. TIBCO shall report
these sales quarterly and allow the full value, if any, of the credit
balance so arising against any future labor Work Order specified by CGS
until the balance is cleared. Such discounts shall be applied before
calculation of taxes.
9.0 Administrative Charges
The charges for administrative services and support, including contract
administration, will be established in a work order.
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Exhibit E: Contract Price
Schedule 1: License Fees
The annual consideration for the license for expanded use of Existing
Software and Future Products as stated in Article V of the Agreement is
US$[ * ] due to TIBCO according to the following schedule: US$[ * ]on or
before the first day of each calendar quarter with the first such payment due
on or before April 1, 1999 (CGS has paid its first quarterly installment
payment of US$[ * ] for 1999 prior to the execution date of this Agreement,
which amount included additional sums not subject to refund or credit), and
the last such payment due on or before October 1, 2000.
All the above figures are exclusive of taxes due for delivery of the software
into Luxembourg or London as declared on the invoice supporting the claim for
payment.
As of December 31, 2000, CGS will cease further deployment of the Future
Products pursuant to Article V of this Agreement but will retain its
perpetual right and license to use Future Products in production as of such
date.
Notwithstanding the foregoing, CGS will have the option to extend the term of
this Agreement and its rights under Article V for Future Products through
December 31, 2002, by making annual payments of US$[ * ] for license fees and
maintenance fees in equal quarterly payments as specified in Schedule 1 and
Schedule 2 throughout 2001 and 2002, subject to the provisions of section 2.2
below. CGS will exercise such option upon written notice to TIBCO no later
than December 1, 2000.
Schedule 2: Maintenance Fees
2.1 Base Fees
In addition to the amounts described in Schedule 1 above, CGS will pay to
TIBCO equal annual amounts of US$[ * ] due to TIBCO according to the
following schedule: US$[ * ] on or before the first day of each calendar
quarter with the first such payment due on or before April 1, 1999 (CGS has
paid its first quarterly installment payment of US$[ * ] for 1999 prior to
the execution date of this Agreement), and the last such payment due on or
before October 1, 2000. Such fees will be applied toward TIBCO's provision
of maintenance services, software new releases and Existing Software and
Future Products upgrades, until 31st December 2000, as more fully described
in Exhibit C. Additionally, TIBCO must provide documentation for CGS to
maintain any non-productized software which is not included in Exhibit A.
Such documentation shall conform to generally accepted industry standards.
Whether or not CGS elects to extend the term of this Agreement regarding the
licensing of Future Products beyond December 31, 2000, following expiration
of this Agreement on December 31, 2000 CGS will continue making annual
maintenance payments to TIBCO of at least US$[ * ] in equal quarterly
[ * ] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
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installments of at least US$[ * ] on or before the first day of each
calendar quarter with the first payment due on or before January 1, 2001 and
the last payment due on or before October 1, 2002, for which TIBCO will
provide maintenance and support services for the Existing Software and
Future Products deployed as of December 31, 2000. Such rates are subject to
escalation pursuant to the provisions of Schedule 2, Section 2.2 below. In
such event, the provisions of Exhibit C will survive expiration of the term
of this Agreement through December 31, 2002.
2.2 Maintenance Fee Escalation. Commencing in calendar year 2000, CGS will
calculate its internal use of the Existing Software and Future Products
semi-annually (in June and December) by counting the number of machines
(e.g. mainframe, server, PC) on which any Existing Software and/or Future
Product is running ("Machine Count"). Such Machine Count calculation may
exclude temporary increased use of the Existing Software and Future Products
in connection with development projects. In the event that CGS's cumulative
Machine Count in any semi-annual calculation is thirty percent (30%) or more
above the total Machine Count at the end of the previous calendar year,
CGS's annual maintenance fees will increase commencing in the next calendar
quarter by XX of the percentage increase which would otherwise be paid due
to such percentage increase in the Machine Count.
By way of example, if CGS's Machine Count increases by thirty percent (30%)
during the first semi-annual review period of any given year after calendar
year 2000, CGS's maintenance fees would increase by [ * ] of thirty percent
(30%), commencing in the third quarter. Thereafter, if CGS's Machine Count
increases by an additional ten percent (10%) during the second semi-annual
review period of such given year, CGS's maintenance fees would further
increase by [ * ] of ten percent (10%), commencing in the first quarter of
the following year.
CGS will submit verification of its Machine Count calculation to TIBCO, and
CGS hereby grants to TIBCO the right to conduct an inspection of CGS's
records relative to such calculation at TIBCO's expense and upon ten (10)
days' prior written notice in order to verify CGS's Machine Count
calculation. The provisions of this Schedule 2, Section 2.2 will survive
expiration of this Agreement through December 31, 2002 for purposes of
calculation of annual maintenance fees in the event CGS does not elect to
extend the term beyond December 31, 2000. The parties agree to negotiate
maintenance terms in good faith beyond calendar year 2002.
Schedule 3. CGS Funded Development Projects
3.1 Work Orders
All development work will be documented on Work Orders issued under the
terms of this Agreement. No payment will be made for any development work
not covered by a correctly executed Work Order. Work Orders will be issued
in one of the contractual forms set forth in Article II.
[ * ] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
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3.2 Time & Materials [T&M]
For T&M Work Orders the following rate schedule shall apply throughout the
term of this Agreement, subject to the provisions of Schedule 3, section 3.7
below. TIBCO agrees that such rates will be applicable to a five (5) day
work week, not to exceed forty (40) hours per week:
Resource Classification Daily Rate
Management $[ * ]
Team Leader/Arch $[ * ]
Senior Technical $[ * ]
Technical $[ * ]
Junior Technical $[ * ]
Project Control $[ * ]
Admin. Support $[ * ]
TIBCO agrees to provide CGS with a discount on monthly invoices for T&M
charges in accordance with the table below:
<TABLE>
<CAPTION>
Monthly
Invoice Incremental CGS
Amount Discount Pays
<S> <C> <C>
$[ * ] 0% $[ * ] No discount up to this amount.
$[ * ] 10% $[ * ] 10% discount on incremental amount over
$[ * ] and up to $[ * ].
$[ * ] 20% $[ * ] 20% discount on incremental amount over
$[ * ].
</TABLE>
These rates are inclusive of all payroll, social and medical charges; office
overheads and secretarial costs; computing equipment required to carry-out
and test the work; communications charges including telephone, telex,
facsimile, Email, postage, marketing, internal research and development and
management overheads; financing costs; taxes not declared on invoices;
documentation printing costs; general working consumables including computer
disks, tapes, print costs, machine costs and the like; and profit.
Charging using these rates shall be up to a maximum of forty (40) hours per
working week unless specifically agreed to in advance.
In addition to the rates quoted above, TIBCO shall invoice for approved
travel and living expenses required to perform the work. All international
travel must be approved by CGS. Travel and living expenses shall be
invoiced at cost.
[ * ] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
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Estimates of these items shall be included in the "Total Estimated Charge"
assigned to the Work Order.
All other charges that many be agreed for the purposes of the work shall be
invoiced at cost.
3.3 Charges Plus a Fixed Profit Work Orders [CPFP]
For CPFP Work Orders TIBCO will be paid a fixed profit for performing the
work. This profit shall be calculated by multiplying the man-hour cost
estimate using the rate table in 3.2 above by [*] percent ([*]%). This
profit shall be invoiced as follows:
On award of the Work Order 20%;
through agreed, deliverable based stage payments 60%;
on issue of the Acceptance Certificate 20%.
3.4 Adjusted Charges Work Orders [AC]
For AC Work Orders TIBCO will be paid a fixed profit for performing the
work. This profit shall be calculated by multiplying the man-hour cost
estimate using the rate table in 3.2 above by [ * ] percent ([ * ]%). This
profit shall be invoiced as follows:
On award of the Work Order 20%;
through agreed, deliverable based stage payments 60%;
on issue of the Acceptance Certificate 20%.
3.5 Total Estimated Charge
Each reimbursable Work Order shall establish the estimated charges required
for performance (the "Total Estimated Charge").
No liability shall be incurred by CGS for any charges, including those set
forth in Article VII(D), in excess of the Total Estimated Charge unless and
until the applicable Work Order is so amended in a written amendment signed
by both parties. If and when TIBCO reasonably expects that the Total
Estimated Charge of a Work Order will be equaled or exceeded, TIBCO shall
notify CGS and provide its best estimate of revised charges for performance
and the reasons justifying such revised charges.
TIBCO is not required to continue performance beyond the Total Estimated
Charge set forth in each Work Order, as may be modified by amendment, unless
and until CGS shall have notified TIBCO in writing that such Total Estimated
Charge has been increased and shall have specified in such notice a revised
Total Estimated Charge. When and to the extent that the Total Estimated
Charge set forth has been increased, any charges incurred by TIBCO in excess
of the Total Estimated Charge prior to the increase shall be allowable, due
and payable to the same extent as if such charges were incurred after such
increase in the Total Estimated
[ * ] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
45
<PAGE>
Charge. In the event that CGS does not notify TIBCO within fifteen (15)
working days from the date the costs of performance equaled or exceeded the
Total Estimated Charge, the Work Order shall be deemed terminated pursuant
to Article VII(D) except however the termination charges provided for in
Article VII(D) shall, in that event, not apply to the extent that the Total
Estimated Charge would thereby be exceeded.
For CPFP and AC based Work Orders, in the event that TIBCO advises CGS that
the proposed increase to the Total Estimated Charge exceeds 20% of the
original Total Estimated Charge, then CGS shall have the right to terminate
the Work Order without payment of the termination costs as set forth in
Article VII(D).
3.6 Fixed Price Work Orders [FP]
For FP Work Orders TIBCO agrees to provide a total fixed price for
performing the work. This price shall be established in the Work Order.
The price shall be invoiced as follows:
On award of the Work Order 20%;
through agreed, deliverable based stage payments 60%;
on issue of the Acceptance Certificate 20%.
In addition to the fixed price, TIBCO shall invoice and be paid for approved
travel and living expenses required to perform the work. All international
travel must be approved by CGS. Travel and living expenses shall be
invoiced at cost. No other charges will be allowed on Fixed Price Work
Orders.
3.7 Rate Escalation
All the man-hour rates listed above shall be subject to escalation from the
1st January for each year of this Agreement in accordance with the ECI, and
any government-caused increases which are not generally reflected in such
index, which may include mandated health insurance. "ECI" means the US
Labor Department Bureau of Statistics Employment Cost Index for white collar
occupations.
All other rates shall remain fixed for the term of the Agreement.
3.8 Equipment Purchase Through Work Orders
In general, Work Orders are not to be used for the purchase of equipment.
Where the requirements of the Work Order necessitate the purchase of
extraordinary equipment, such equipment must be itemized on the Work Order.
CGS shall own all equipment purchased through Work Orders and such equipment
shall be delivered to CGS, at CGS's cost, in good condition, before the
issuance of the Acceptance Certificate.
46
<PAGE>
3.9 Expense Policy.
<TABLE>
<CAPTION>
CGS
Project
Location Luxembourg Luxembourg London London
- -----------------------------------------------------------------------------------------------------------------------
Employee Short Term (0- Long Term Short Term Long Term
Home 6Mths) (greater than 6Mths) (0-6Mths) (greater than 6Mths)
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Hotel, $200 flat rate per 365 Hotel, $200 flat rate per 365
days a year days a year
US IRS set Per Diem TIBCO manages the IRS set Per Diem TIBCO manages the
expense policy and expense policy and
Flights home compensation package Flights home Compensation package
Compliance with Compliance with TIBCO
TIBCO travel policy travel policy
- -----------------------------------------------------------------------------------------------------------------------
London Hotel,
IRS set Per Diem
Flights home $0
Compliance with TIBCO
travel policy
- -----------------------------------------------------------------------------------------------------------------------
Continental Hotel, Hotel,
Europe IRS set Per Diem IRS set Per Diem
Flights home $0 Flights home $0
Compliance with TIBCO Compliance with
TIBCO
travel policy travel policy
- -----------------------------------------------------------------------------------------------------------------------
CGS
Project
Location US US
- ------------------------------------------------------
Employee Short Term Long Term
Home (0-6Mths)* (greater than 6Mths)
- ------------------------------------------------------
<S> <C> <C>
US
- ------------------------------------------------------
London Hotel, $38 per diem
IRS set Per Auto Rental
Diem
Flights home $40 day house
Compliance
with TIBCO
travel policy
- ------------------------------------------------------
Continental Hotel, $38 per diem
Europe IRS set Per Auto Rental
Diem
Flights home $40 day house
Compliance
with TIBCO
travel policy
- ------------------------------------------------------
</TABLE>
*Short term is valid until a long term house is found
47
<PAGE>
Schedule 4. Payment
CGS shall pay the undisputed portions of all invoices, drawn up in accordance
with clause 8 of Exhibit D, within thirty (30) days by wire transfer in US
dollars. A service charge of the London Interbank Offered Rate plus one and
one-half percent (1.5%) will be applied to all undisputed invoices which are
not paid on time.
48
<PAGE>
Exhibit F: Work Order Procedures
CGS shall request the performance of TIBCO services as more fully described
in Exhibit D, Section 6.3, and licensing of Licensed Software by execution
and delivery of a Work Order which shall contain, at a minimum, the following
terms:
(a) Statement of the scope of services to be performed, implementation and
schedule.
(b) The specific product or products which will be acquired by CGS;
(c) Third Party Materials, if any;
(d) The price for fixed price items or tasks ("Fixed Price") and/or
currently estimated charges for performance of tasks on other than a
Fixed Price basis. Currently estimated charges on a particular Work
Order shall be referred to hereinafter as the "Total Estimated Charge";
(e) Designation of whether services are to be performed on a Fixed Price or
other basis as the parties may establish, and the schedule on which
payment shall be made for such services;
Each Work Order shall establish an Acceptance Test Plan which will
demonstrate that the Licensed Software conforms, in all material respects to
the TIBCO specifications therefor.
Each Work Order shall set forth CGS Tasks which shall define and describe the
environmental site requirements and specify the time by which the site will
be ready for installation of equipment. CGS will be responsible for meeting
the environmental site requirements in a timely manner and at CGS's cost.
49
<PAGE>
Exhibit G: Protected Jurisdictions
Pursuant to the provisions of Article XIII "Proprietary Rights Indemnity" the
following countries constitute Protected Jurisdictions subject to such
article:
United States of America
Canada
Member Countries of the European Economic Area
Switzerland
United Arab Emirates
Brazil
Japan
50
<PAGE>
EXHIBIT H
TIBCO Shrink Wrap End User License Agreement
READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE YOU
OPEN THE PACKAGE CONTAINING THE MEDIA, THE COMPUTER SOFTWARE THEREON AND THE
ACCOMPANYING DOCUMENTATION (THE "PROGRAM"), OR IF YOU ARE DOWNLOADING THE
SOFTWARE ELECTRONICALLY, BEFORE YOU INDICATE YOUR ACCEPTANCE TO THE TERMS OF
THIS AGREEMENT. THE PROGRAM IS COPYRIGHTED AND LICENSED (NOT SOLD). BY
BREAKING THE SEAL ON THE PACKAGE CONTAINING THE PROGRAM, YOU AGREE TO THE
PROVISIONS SET FORTH IN THIS LICENSE AGREEMENT. IF YOU ARE NOT WILLING TO BE
BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, YOU SHOULD
IMMEDIATELY RETURN THE UNOPENED PACKAGE AND YOU WILL RECEIVE A REFUND OF YOUR
MONEY.
License Agreement. TIBCO Software Inc. ("TIBCO") hereby grants to you and you
accept a non-transferable and non-exclusive license to use the media and the
proprietary computer software product contained thereon in machine-readable,
object code form only ("Software") under the following terms and conditions.
The term of this license commences upon your opening this package and shall
continue until terminated. The license fees paid by you are paid in
consideration of the licenses granted under his License Agreement and correspond
to the number of permitted users. If you desire to increase the number of
permitted users, you may do so by notifying TIBCO and paying any additional fee
therefor. TIBCO will then provide you with a password(s) or registration number
which will enable the requested number of additional users to use the Software
in accordance with the terms and conditions of this License Agreement.
Notwithstanding the foregoing, if the Program is being provided for
demonstration or evaluation purposes only, then your license to use the Software
shall automatically terminate at the time designated by TIBCO.
In addition to automatic termination, TIBCO may terminate this License Agreement
upon breach by you of any term hereof. In the event of termination for any
reason, you will immediately cease using the Program and all copies and portions
thereof shall be returned or destroyed. Your obligation to pay accrued charges
and fees shall survive any termination of this Agreement.
You agree that you will not assign, sublicense, transfer, pledge, lease, rent or
share your rights under this License Agreement. Also, you will not reverse
assemble, reverse compile or otherwise translate the Software. You may make one
copy of the Software for the purpose of backup in the event the Program media is
damaged or destroyed. Any copies of the Software shall include TIBCO's
copyright or other proprietary notices. Except as authorized by this paragraph,
no copies of the Program or any portions thereof may be made by you or any
person under your authority or control.
The acceptance of a purchase order from you for the Program is conditional on
your agreeing to the provisions of this License Agreement and TIBCO will furnish
the Program only on the terms and conditions set forth herein, not those in your
Purchase Order. In the event of any conflict, the terms of this License
Agreement shall apply.
Limited Warranty. TIBCO warrants for your sole benefit for a period of thirty
(30) days from the date of commencement of this License Agreement (the "Warranty
Period") that the Software will substantially achieve the functionality
described in the Documentation, provided it is used on the computer hardware and
with the operating system for which it was designed, and that the media
containing the Software, if provided by TIBCO, is free from defects in material
and workmanship. If, during the Warranty, Period, a defect in the Software or
the media appears, you may return the media containing the Software to TIBCO for
either replacement or, if so elected by TIBCO, refund of amounts paid by you
under this License Agreement. The foregoing constitutes your sole and exclusive
remedy for breach by TIBCO of any warranties made under this Agreement.
EXCEPT AS SPECIFICALLY PROVIDED ABOVE, TIBCO MAKES NO WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PROGRAM,
INCLUDING ITS QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. NO TIBCO DEALER, DISTRIBUTOR, AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE
ANY MODIFICATIONS, EXTENSIONS OR ADDITIONS TO THIS WARRANTY.
Limitation of Liability. In no event will TIBCO be liable for indirect,
incidental, consequential, special or exemplary damages or lost profits arising
out of the use or the inability to use the Program even if advised of the
possibility of such damages. In no case shall TIBCO's liability exceed the
amount of the license fee paid by you.
General. You may not export or otherwise transfer this Software outside the
United States unless you do so in full compliance with the U.S. Export
Administration Act and any other laws or regulations governing the export of
materials of this nature.
This License Agreement shall be construed and governed in accordance with the
laws of the State of California.
U.S. Government Restricted Rights. The enclosed Program is provided with
restricted and limited rights. Use, duplication or disclosure by the Government
is subject to restrictions as set forth in FAR (S) 52.227-14 (June 1987)
Alternate III(g)(3) (June 1987), FAR (S) 52.227-19 (June 1987), or DFARS (S)
252.227-7013(c)(1)(ii) (June 1988) as applicable. Contractor/Manufacturer is
Teknekron Software Systems, Inc., 530 Lytton Avenue, Palo Alto, California
94301.
Costs of Litigation. If any action is brought by either party to this License
Agreement against the other party regarding the subject matter hereof, the
prevailing party shall be entitled to recover, in addition to any other relief
granted, reasonable attorney fees and expenses of litigation.
(C) 1998 TIBCO Software, Inc.
All rights reserved.
51
<PAGE>
EXHIBIT I
Year 2000 Warranty
As used in this Exhibit, capitalized terms shall have the same meaning as set
forth in the Agreement unless otherwise specified. Terms and provisions of this
Exhibit shall control over any conflicting terms in the Agreement, including
without limitation, provisions relating to warranties and limitations of
liability.
1. Year 2000 Warranty
TIBCO warrants to CGS that, subject to the provisions set out below, the
Licensed Software will be Year 2000 Compliant on and from the date on which it
is confirmed on TIBCO's Web Site to be Year 2000 Compliant.
2. Other materials
Where any Other Materials are used in connection with any Licensed Software,
TIBCO will not be in breach of the Year 2000 Warranty if the failure of the
Licensed Software to be Year 2000 Compliant is caused by any Other Materials not
being Year 2000 Compliant.
3. Cooperation
CGS shall provide TIBCO with such assistance as TIBCO reasonably requires and
complying with such directions as TIBCO may give including but not limited to,
providing access to any location to which the Services are supplied upon TIBCO
giving CGS notice and co-operating in any installation of new releases of
software.
4. Duration of Warranty
The Year 2000 Warranty will remain in effect throughout the term of the
Agreement.
5. Liability
5.1 Neither TIBCO nor any Affiliates, employees, officers or directors, nor any
third party supplier to TIBCO will be liable to CGS or to any third party
for any loss or damage in connection with any breach of the Year 2000
Warranty, except as provided in this paragraph 5.
5.2 If TIBCO is in breach of the Year 2000 Warranty in relation to any Licensed
Software, CGS's sole remedy, and TIBCO's sole obligation, is to require
TIBCO to either repair, replace or provide a workaround for the relevant
Licensed Software if and to the extent that it is proven not to be Year
2000 Compliant, provided that the Licensed Software is at such time subject
to a maintenance agreement with TIBCO.
5.3 Except as expressly set forth in this Schedule, all express or implied
conditions, warranties or undertakings, whether oral or in writing, in law
or equity, including without limitation warranties as to satisfactory
quality, merchantability and fitness for a particular purpose, are
excluded.
52
<PAGE>
5.4 NEITHER TIBCO NOR ANY AFFILIATE, EMPLOYEE, OFFICER OR DIRECTOR, NOR ANY
THIRD PARTY SUPPLIER TO TIBCO WILL BE LIABLE TO CGS OR TO ANY THIRD PARTY
FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR ANY SIMILAR TYPE OF LOSS OR
DAMAGE ARISING OUT OF OR IN ANY WAY RELATED TO A BREACH OF THE YEAR 2000
WARRANTY, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS OR LOST DATA.
5.5 The Year 2000 Warranty does not apply to any data or other information
provided to TIBCO by any information provider. Accordingly, neither TIBCO
nor its Affiliates, employees, officers or directors will be liable for any
loss or damage arising from the fact that any such data or other
information is not Year 2000 Compliant. It is TIBCO's practice to use
reasonable efforts to obtain Year 2000 warranties from its third party
suppliers.
5.6 This paragraph 5 is enforceable by and to the benefit of TIBCO and third
party suppliers to TIBCO.
6. Definitions
For purposes of this Year 2000 Warranty, the following terms have the following
meanings:
6.1 Licensed Software means a TIBCO software product as described on TIBCO's
Web Site which is confirmed on the Web Site to be Year 2000 Compliant, but
does not include any Other Materials;
6.2 Year 2000 Compliant means:
(a) in relation to any Licensed Software, there will not be a reduction in
any material respect in its functionality, as a result of its
inability to process date information accurately before, on or after
January 1, 2000 (including leap years), which is solely attributable
to that piece of Licensed Software; and
(b) in relation to any Other Materials, there will not be a reduction in
any material respect in their functionality, as a result of their
inability to process date information accurately before, on or after
January 1, 2000 (including leap years).
"Year 2000 Compliance" shall be construed accordingly;
6.3 Year 2000 Warranty means the warranty set out in paragraph 1 above;
6.4 Other Materials means any hardware, firmware, software, (including
databases and operating systems), and other materials which are used in
connection with the Licensed Software and any data or information provided
to us by any third party which is used in connection with the Licensed
Software;
6.5 Affiliates means TIBCO's direct and indirect parents and subsidiaries
(being a company in which another company owns, directly or indirectly, 50%
or more of the issued share capital and over which it exercises effective
control);
53
<PAGE>
6.6 Web Site means the portion of the Internet-accessible site at www.tibco.com
that is specifically designated by TIBCO to describe TIBCO's Year 2000 Program.
54
<PAGE>
EXHIBIT J
Individual Confidentiality Agreement
I have read and understand the confidentiality provisions of Section XVIII of
the Software License and Development Agreement between TIBCO and CGS,
specifically:
All information concerning TIBCO and CGS or any affiliate or subsidiary
thereof or of the Software, designated as "Confidential" and/or "Proprietary"
at the time of disclosure ("Confidential Information") and any financial
models developed or used by CGS which TIBCO may acquire in connection with
the performance of services under this Agreement, shall at all times and for
all purposes be regarded as confidential and held in trust solely for the
benefit and use of TIBCO or CGS, as appropriate for purposes of this
Agreement; and neither TIBCO nor CGS shall disclose, directly or indirectly,
any such information to any other person, firm or corporation, except the
authorized agents of each party without the prior written consent of the
other party. All employees, agents and contractors of each party shall enter
into confidentiality agreements with such party that protect the Confidential
Information of the other party from being disclosed. CGS may require TIBCO
to directly furnish its agents or contractors with Confidential Information.
If Confidential Information is communicated orally, such communication shall
be confirmed as Confidential Information in writing within thirty (30) days
of such disclosure. TIBCO and CGS shall cause their officers, employees,
agents and/or representatives to take such action which may be necessary
and/or advisable to preserve and protect the confidentiality of information
obtained by TIBCO or CGS in connection with this Agreement. No actions taken
in reference to acceptance or payment will relieve either party of its
obligations regarding confidentiality. Notwithstanding the above, nothing
herein shall be construed as Confidential Information which, at the time of
its disclosure (a) was known to the party to whom disclosed, or after such
disclosure becomes generally known or published without any violations of any
provisions hereof, (b) is lawfully disclosed by a third party, (c) is
independently developed by a party, or (d) is released pursuant to the order
of a court of competent jurisdiction or governmental agency. In the event
that TIBCO conducts any business with an entity that conducts as its
principal business the clearing and settlement of securities, TIBCO shall
notify CGS prior to disclosing to such entity any information derived from
its conduct of this Agreement concerning CGS or its business or software
systems and CGS shall determine in its sole discretion whether such
information is "Confidential Information". In the latter case, the
information shall be Confidential Information which shall not be disclosed.
I am also aware that the disclosure of any information protected under the
legislation regarding banking secrecy Law of 5 April 1993 relating to the
Financial Sector, as amended, might constitute a criminal offence which can
be punished according to Article 458 of the Penal Code. Specifically, such
information includes all information confided to me in the course of my
professional activity with CGS.
Full Name: .....................................................
(Capitals)
Signature: .......................................................
Date: .................................................
55
<PAGE>
Exhibit 21.1
------------
TIBCO Software Inc. Subsidiaries
--------------------------------
TIBCO Software France SARL
TIBCO Software GmbH (Germany)
