<PAGE>
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-KSB
as amended by Form 10-KSB/A-1
ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the Fiscal Year Ended December 31, 1995
Commission File Number 0-14692
GLOBAL MAINTECH CORPORATION
f/k/a MIRROR TECHNOLOGIES, INCORPORATED
MINNESOTA 41-1523657
State of Incorporation I.R.S. Employer Identification No.
6468 City West Parkway
Eden Prairie, MN 55344
(612) 944-0400
Securities registered under Section 12(g) of the Exchange Act:
COMMON STOCK, NO PAR VALUE
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months (or for such period
that the registrant was required to file such reports), and (2) has been subject
to such filing requirements for the past 90 days.
Yes X No
--- ---
Check if there is no disclosure of delinquent filers in response to Item 405 of
Regulations S-B is not contained in this form, and no disclosure will be
contained, to the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-KSB
or any amendment to this Form 10-KSB.
[x]
The Company's revenues for the Fiscal Year Ended December 31, 1995 totaled
$1,173,744.
The aggregate market value of voting stock held by non-affiliates of the
registrant as of March 1, 1996 was approximately $2,100,000 based upon the
closing bid price on the OTC Bulletin Board on that date. The number of shares
of the Company's no par value common stock outstanding as of March 1, 1996 was
45,185,139.
Transitional Small Business Disclosure Format (Check One):
Yes No X
--- ---
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Company's Proxy Statement for the Annual Meeting of Shareholders
for the year ended December 31, 1995 are incorporated by reference in part III
COPIES OF THE COMPANY'S FORMS 10-KSB, AS FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION, MAY BE OBTAINED FREE OF CHARGE FROM JAMES GEISER AT THE COMPANY,
6468 CITY WEST PARKWAY, EDEN PRAIRIE, MINNESOTA 55344, PHONE 612-944-0400
<PAGE>
Office and Warehouse Lease Agreement between 10.8
MAINTECH Resources, Inc. and David D. Heinen dated
December 20, 1994 (incorporated herein by reference
to the Registrant's Form 10-KSB for the year ended
December 31, 1994, (File No. 0-14692).
Exclusive Distributor and Licensing Agreement 10.9
between Yutaka Takagi and Circle Corporation and
MAINTECH Resources, Inc. and Global MAINTECH, Inc.
dated December 20, 1994 (incorporated herein by
reference to the Registrant's Form 10-KSB for the
year ended December 31, 1994, (File No. 0-14692).
Office Lease Agreement between the Company and 10.10
Charles and Sharron Mills dated December 12, 1995.
Brokerage Asset Purchase Agreement between Norcom 10.11
Resources, Inc. and Global MAINTECH, Inc. dated
December 31, 1995.
Amendment No. 3, dated May 15, 1995 to the 10.12
Company's 1989 Stock Option Plan.
*Sale contract between Burlington Northern Railroad 10.13
Company and Global MAINTECH, Inc. dated March 21,
1996.
Subsidiaries of the Registrant 21
Consent of KPMG Peat Marwick LLP 23
Financial data schedule 27
(b) Reports on Form 8-K
No Form 8-K was filed in the last quarter of the twelve month period ended
December 31, 1995.
*Pursuant to Rule 24b-2 of the Securities Exchange Act of 1934,
confidential portions of Exhibit 10.13 have been deleted and filed separately
with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
2
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Exhibit Index
<TABLE>
<CAPTION>
Exhibit Page
Description Number Number
- --------------------------------------------------------------------- ------- ------
<S> <C> <C>
Restated Articles of Incorporation of the Company, as amended in 3.3 27
May 15, 1995 annual meeting of common stockholders (corporate
name change and increase in authorized stock).
Form of Certificate of the Company's Common Stock 4.5 28
following change of corporate name change.
Office Lease Agreement between the Company and Charles and 10.10 30
Sharron Mills dated December 12, 1995.
Brokerage Asset Purchase Agreement between Norcom Resources, 10.11 46
Inc. and Global MAINTECH, Inc. dated December 31, 1995.
Amendment No. 3, dated May 15, 1995 to the Company's 1989 10.12 83
Stock Option Plan.
*Sale contract between Burlington Northern Railroad Company and 10.13 86
Global MAINTECH, Inc. dated March 21, 1996.
Consent of KPMG Peat Marwick LLP 23 84
Financial data schedule 27 85
</TABLE>
*Pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, confidential
portions of Exhibit 10.13 have been deleted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment.
<PAGE>
Exhibit 10.13
GLOBAL MAINTECH, INC.
SOFTWARE LICENSE AGREEMENT
MASTER AGREEMENT NUMBER: ICS009610000 EFFECTIVE DATE: February 1, 1996
LICENSEE: BURLINGTON NORTHERN RAILROAD COMPANY
ADDRESS: 176 E. 5TH STREET
ST. PAUL, MN 55101-2601
THIS AGREEMENT is made as of the date first written above, between the LICENSEE
set forth above ("LICENSEE") and Global MAINTECH, Inc. ("LICENSOR").
SECTION 1
DEFINITIONS
1.1: "Agreement" means this Agreement including all attachments hereto.
1.2: "LICENSEE" shall mean Burlington Northern Railroad Company and the
Atchison, Topeka & Santa Fe Railway Company, their successors and assigns.
1.3: "Licensed Program(s)" shall mean all software as defined below, in
any form, whether object or source code, developed or furnished by LICENSOR,
together with all documentation, including instruction manuals, for
implementing, installing or Using the software set forth in Schedule A, which
may be amended from time to time.
1.4: "Software" shall mean that portion of each Licensed Programs
consisting of (i) alterable or executable programs in object code form, or (ii)
source code files supplied to LICENSEE for Use with Licensed Programs.
1.5: "Use", "Using", or "Used" as related to software execution shall
include copying all or any portion of a Licensed Program into a computer or
transmitting it to a computer for processing of the instructions contained in
the Licensed Programs and/or displaying any portion of the Licensed Programs in
connection with the processing of such machine instructions.
1.6: "CPU" shall mean a central processing unit on which the Licensed
Programs may be executed.
1.7: "Designated Equipment" shall mean the specific CPU(s) which are
licensed to execute the Licensed Programs.
1.8: "Designated Site" shall mean all LICENSEE facilities at the LICENSEE
address (es) indicated on Schedule(s) A or within 2 miles of such address(es) or
such other LICENSEE facilit(ies) to which the Designated Equipment (or any
replacement equipment) may be relocated by LICENSEE(S).
1.9: "Confidential Information" includes all information that is embodied
in the Software, and any other portion of the Licensed Programs that is
expressly marked, labeled, referenced in writing by LICENSOR or its suppliers as
confidential.
SECTION 2
LICENSE GRANT
2.1: Subject to the terms and conditions set forth in this Agreement,
LICENSOR hereby grants to LICENSEE, and LICENSEE accepts from LICENSOR, a non-
exclusive license to Use the Licensed Programs, in accordance with the license
type set forth in Schedule A and the term set forth in Section 6, for LICENSEE's
internal use which may include servicing its customers. LICENSEE shall not lend,
lease, license or otherwise make the Licensed Programs available to third
parties for their Use. No right to the Licensed Programs is granted to LICENSEE
except that expressly set forth in this Agreement.
2.2: The License granted under this Agreement shall not be sold, leased,
assigned, sublicensed or otherwise transferred, in whole or in part, except as
provided in this Agreement. This Agreement binds LICENSEE and each of its
affiliates, employees, agents and representatives who will Use or have access to
the Licensed Programs.
2.3: LICENSEE may only Use the Licensed Programs in the object code or
source code form delivered under this Agreement.
2.4: LICENSEE shall not copy the Software, except that LICENSEE may make
and maintain one (1) copy of the Software for back-up or disaster recovery
purposes and one (1) copy for archival purposes.
2.5: LICENSEE shall not attempt to decompile, cross, compile, disassemble,
reverse engineer, or use any other means to decode the Licensed Programs.
2.6: A. Escrow of Source Code. LICENSOR shall place in escrow all Source
Code for the Licensed Programs, including Source Code for all new releases and
updates to Licensed Programs, at LICENSOR'S cost. The escrow agent and terms of
the Escrow Agreement shall be approved by LICENSEE and shall require, at a
minimum, that the agent release all Source Code to LICENSEE, upon LICENSEE'S
written demand, in the event of (a) any rejection or termination of Software
License Agreement or Escrow Agreement by LICENSOR or its successors or
representatives in breach of the provisions of the Software License Agreement or
the Escrow Agreement, including in all events any rejection or termination of
the Software License Agreement or any proposal to do so under Title 11 of the
United States Code, as now constituted or hereafter amended (the "Bankruptcy
Code"), or any other federal or state bankruptcy, insolvency, receivership, or
similar law: (b) failure of a trustee, including LICENSOR as debtor in
possession, in any bankruptcy case hereafter filed by or against LICENSOR either
to assume the Software License Agreement and the Escrow Agreement within fifteen
(15) days after the filing of the initial bankruptcy petition or to perform the
Software License Agreement and the Escrow Agreement within the meaning of
section 365 (a)(4)(i) of the Bankruptcy Code; (c) the termination of
substantially all of LICENSOR'S ongoing business operations relating to the
subject to the Software License Agreement and the Escrow Agreement; and (d) any
liquidation of LICENSOR, or any sale, assignment, or foreclosure of or upon
assets that are necessary for the performance by LICENSOR of its
responsibilities under the Software License Agreement and the Escrow Agreement.
B. Equitable Relief. Should LICENSOR fail to place Source Code in escrow,
as provided herein, then upon the happening of any one or more of the above-
described events, LICENSOR hereby consents to entry of an order by a court of
competent jurisdiction, compelling LICENSOR or its successor (including any
trustee, receiver or third party assuming control of LICENSOR'S business) to
immediately release all Source Code for Licensed Programs to LICENSEE..
LICENSEE'S Use of any Source Code release pursuant to this Section 2.6 shall be
subject to all other terms and conditions of this Agreement.
SECTION 3
WARRANTY
3.1: LICENSOR warrants to LICENSEE that the Licensed Programs will perform
substantially in accordance with LICENSOR's published functional specifications.
LICENSOR will correct any Licensed Programs which do not perform in accordance
with LICENSOR'S published functional specifications, attached hereto as Exhibit
A and incorporated herein by reference, within thirty (30) days of receiving
written notification from LICENSEE, clearly identifying any area which does not
so perform in accordance with the LICENSOR's published functional
specifications. LICENSOR warrants to LICENSEE that the Licensed Programs will be
free from manufacturing defects, including but not limited to, defective media,
software configuration errors, and shipping damage for a period of thirty (30)
days from the date of shipment of the Licensed Programs. LICENSOR's entire
liability and LICENSEE's sole remedy for any manufacturing defects shall be the
replacement of such media containing the Licensed Programs provided that the
defective media is returned to LICENSOR within the period ending fourteen (14)
days after the end of the media warranty period. Licensed Program shall be
subject to maintenance and support commencing upon completion of acceptance
testing as provided herein.
3.2: THE WARRANTIES SET FORTH IN THIS SECTION 3 ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, WHICH ARE HEREBY DISCLAIMED AND EXCLUDED BY
LICENSOR, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR USE.
3.3: LICENSOR shall have no obligation under this Section 3 if:
(a) The Licensed Programs have not been properly Used or maintained in
accordance with this Agreement and with LICENSOR's user manuals;
OR
(b) The Licensed Programs have been Used or integrated with programs from a
third party not authorized, recommended or approved by LICENSOR and any improper
performance of the Licensed Program is due to such combinations.
SECTION 4
LIMITATION OF REMEDIES
4.1: LICENSOR SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DELAY
IN FURNISHED PRODUCTS AND SERVICES OR ANY OTHER PERFORMANCE UNDER THIS AGREEMENT
EXCEPT FOR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LICENSOR.
4.2: EXCEPT AS PROVIDED IN SECTION 3.1 WITH REGARD TO MANUFACTURING
DEFECTS, AND SECTION 7 WITH REGARD TO INDEMNIFICATION, LICENSEE'S SOLE REMEDY
FOR A MATERIAL BREACH OF ANY WARRANTY IN THIS AGREEMENT OR FOR ANY MATERIAL
FAILURE OF OR DEFECT IN THE LICENSED PROGRAMS SHALL BE LIMITED TO REFUND OF THE
LICENSE FEE AND THE MAINTENANCE AND SUPPORT FEES FOR THE PERIOD IN WHICH THE
BREACH OCCURS. IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE FOR THE COST OF
PROCURING REPLACEMENT SOFTWARE, LOSS OF PROFITS, INTERRUPTION OF BUSINESS, OR
ANY OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGE TO LICENSEE OR
LICENSEE'S CUSTOMERS, EVEN IF LICENSOR SHALL HAVE BEEN ADVISED OF THE
POSSIBILITY THEREOF.
SECTION 5
CONFIDENTIALITY
5.1: LICENSEE acknowledges that it is receiving Confidential Information.
Such Confidential Information is and shall remain the property of LICENSOR.
Confidential Information includes all information that is embodied in the
Licensed Program(s), or that is expressly marked, labeled, referenced in
writing, or otherwise designated by LICENSOR which is disclosed to LICENSEE by
LICENSOR, except (a) information which, before disclosure by LICENSOR to
LICENSEE, is in the public domain or which after disclosure becomes part of the
public domain through no action or fault of LICENSEE; (b) information which
LICENSEE can demonstrate was in its possession before disclosure by LICENSOR
<PAGE>
to LICENSEE and was not acquired directly or indirectly from LICENSOR; (c)
information which was received by LICENSEE from a third party having a legal
right to transmit the same; or (d) information which is disclosed as required by
law.
5.2: LICENSEE shall not (a) use any Confidential Information during the
term of this Agreement or thereafter for any purpose other than as permitted or
required hereunder, or (b) disclose Confidential Information to any third party.
LICENSEE shall take all reasonable measures to prevent any such disclosure by
its employees, agents, contractors or consultants.
5.3: At LICENSOR's request, LICENSEE shall render reasonable cooperation
to LICENSOR in any legal action taken by LICENSOR to protect its rights in the
Licensed Programs or other Confidential Information. LICENSOR shall bear all
costs and expenses reasonably incurred by LICENSEE in cooperating with LICENSOR
in such legal action.
5.4 LICENSOR will treat as confidential all LICENSEE information that
LICENSOR has access to as a direct or indirect result of the performance of this
Agreement or any Computer "Consulting Services Agreement between the parties,
including but not limited to the terms of this Agreement. Confidential
information shall not be used by LICENSOR or disclosed by LICENSOR without prior
written consent of LICENSEE. This obligation of LICENSOR shall not apply to any
knowledge or information of LICENSEE or any part thereof disclosed to LICENSOR
which (a) is now public knowledge or literature which becomes public knowledge
through no violation of this Agreement; (b) is lawfully within LICENSOR'S
possession prior to disclosure by LICENSEE, as evidenced by written record; or
(c) lawfully disclosed to LICENSOR by a third party not under an obligation of
confidentiality. The title to any confidential information of LICENSEE, provided
or disclosed to LICENSOR by LICENSEE shall be vested in LICENSEE. Furthermore,
LICENSOR agrees to return or deliver such confidential information held in
tangible form to LICENSEE at LICENSEE'S request within thirty (30) days after
such request by LICENSEE, provided that all such materials, whether or not
confidential, furnished by LICENSEE to LICENSOR shall be returned in any event
after they have served the purpose of the Agreement. LICENSOR agrees to advise
and inform its personnel and agents that such personnel and agents of the
obligations of MAINTECH under this Agreement in order that such personnel and
agents will have knowledge of the obligations of LICENSOR hereunder; and further
agrees to limit dissemination of confidential information of LICENSEE only to
those personnel and agents of the LICENSOR who need to know such information.
SECTION 6
TERM
6.1: This Agreement shall take effect as of the last date of execution by
a party hereto and shall remain in effect for a period of ninety-nine (99) years
unless earlier terminated in accordance with the terms of this Agreement.
6.2: This Agreement may be terminated by LICENSOR upon written notice to
LICENSEE if LICENSEE defaults in the payment of any monies due LICENSOR under
this Agreement.
6.3: Upon termination of this Agreement for any reason (a) LICENSEE shall
not Use, disclose, or dispose of Licensed Programs in any manner, and (b) within
ten (10) days after termination LICENSEE shall return to LICENSOR any copies in
its possession of (i) the Licensed Programs, (ii) any documentation, and (iii)
any other Confidential Information in tangible form. LICENSEE's obligations
pursuant to Section 5 hereof shall survive termination of this Agreement.
SECTION 7
PATENT AND COPYRIGHT INDEMNIFICATION
7.1: LICENSOR shall, at its own expense, defend any suit, instituted
against LICENSEE which is based in an allegation that the Licensed Programs
infringes or violates any United States copyright, patent, trademark, trade
secret or other proprietary right of any third party, and shall indemnify and
hold harmless LICENSEE against any award of damages and costs made against
LICENSEE by a final judgment of any court of competent jurisdiction if it is
determined therein that the Licensed Programs infringe any United States
copyright, patent, trademark, trade secret or other proprietary right of any
other third party.
7.2: The above indemnification shall apply if and only if LICENSEE gives
LICENSOR prompt notice of any claims of infringement and permits LICENSOR and
its counsel to defend the same and gives LICENSOR all available information,
assistance and authority to enable LICENSOR to assume such defense, LICENSOR
shall have control of the defense of any such suit, including appeals from any
judgment therein and any negotiations for the settlement or compromise thereof,
with full authority to enter into binding settlement or compromise. In the event
that any Licensed Program is held to infringe and its Use is enjoined, LICENSOR
shall, at its option and expense, (a) procure for LICENSEE the right to continue
Using such Licensed Program or (b) replace or modify such Licensed Program so
that it no longer infringes.
7.3: Notwithstanding the provisions of Section 7.1 hereof, LICENSOR shall
have no liability whatsoever to LICENSEE with respect to any copyright or patent
infringement, or claim thereof, which is based upon or arises out of (a) the Use
of any Licensed Program in combination with any product not authorized,
recommended, approved or supplied by LICENSOR, if such combination causes or
contributes to the infringement, or (b) any modification of any Licensed Program
by LICENSEE or a third party which causes the Licensed Program to become
infringing.
SECTION 8
DISPUTE RESOLUTION
The parties agree to submit themselves to the non-exclusive jurisdiction of
the courts of the State of Minnesota, U.S.A. for the resolution of any dispute,
claim or controversy arising out of or relating to this Agreement.
SECTION 9
ORDERS, PAYMENT TERMS AND DELIVERY
9.1: Each License granted shall be evidenced by a Schedule A to this
Agreement. The terms and conditions contained in this Agreement shall apply to
all Licensed Programs furnished under this Agreement. The stated Licensed
Programs, billing and shipping information, delivery dates, and other matter not
provided for in this Agreement shall be governed by the terms and conditions in
Schedule A. Notwithstanding any provisions to the contrary that might be set
forth on Schedule A, in the event of a variance or conflict between the terms of
this Agreement and those appearing on or with Schedule A, the terms and
conditions of this Agreement shall prevail, unless the term or condition of the
Master Agreement intended to be modified by the term or condition contained on
or with Schedule A specifically states that it superseded a specific provision
of this Agreement. In consideration for the rights herein granted, LICENSEE
agrees to pay LICENSOR according to the price and payment schedule described in
Schedule A for the License(s) granted by this Agreement.
9.2: The license fees specified in Schedule A. All taxes due on the
license, delivery or Use of the Licensed Programs shall be paid by LICENSEE.
9.3: LICENSOR shall arrange for delivery of Licensed Programs for all
orders specified in Schedule A at no charge to LICENSEE.
SECTION 10
INSTALLATION AND ACCEPTANCE TESTING
10.1: Unless otherwise arranged, LICENSEE shall install the Software for
acceptance testing of the initial copy thereof.
10.2: LICENSEE shall have ten (10) business days following receipt of the
Software to install and test the Software. The purpose of the testing period is
solely to permit LICENSEE to determine whether the Licensed Programs selected by
LICENSEE are suitable for LICENSEE's commercial Use.
10.3: LICENSEE may discontinue the Licensed Program(s), upon written notice
effectively immediately, at any time during the testing period and return all
Licensed Programs to LICENSOR in which event no license fees will be due and all
monies paid shall be returned. Unless such notice of discontinuance is given,
LICENSEE will be deemed at the end of the testing period to have accepted the
Licensed Programs under the provisions of this Agreement. LICENSEE is obligated
to the Confidentiality terms of this Agreement, even if the Licensed Programs
are returned.
SECTION 11
MAINTENANCE AND SUPPORT
11.1: LICENSOR, or the alternative maintenance company specified in
Schedule A, shall offer, and LICENSEE may obtain upon payment of a separate
annual fee specified in Schedule A, maintenance and support services for the
Licensed Program(s). Such maintenance and support services (collectively,
"Maintenance and Support") shall include, at a minimum: (i) telephone, FAX or E-
Mail support to cause the Software to perform substantially in accordance with
the specifications set forth in the applicable user's manual; (ii) new releases
to be shipped to support point (i) of this paragraph; and (iii) updates to the
Licensed Programs, at LICENSOR's sole discretion, to provide performance and
feature enhancements so long as such updates are made generally available to
LICENSOR's other customers. Shipping charges for new releases are included in
the annual maintenance fee. LICENSOR shall not use an alternative maintenance
company or subcontract any portion of the maintenance or support services to be
provided hereunder without the express written consent of LICENSEE, which
consent shall not be withheld unreasonably. LICENSEE'S consent to the use of any
alternative maintenance company or subcontractor shall not relieve LICENSOR of
its obligations hereunder.
11.2: For annual Maintenance and Support, the annual time period begins the
day acceptance of any Software is complete. The Maintenance and Support will be
automatically renewed each subsequent year unless LICENSEE notifies LICENSOR at
least forty-five (45) days prior to the end of the previous year that it elects
to cancel such service.
11.3: If, at any time after the first year, LICENSEE elects not to purchase
Maintenance and Support and then subsequently desires to reinitiate such
service, the fees to do so will be computed by applying the maintenance rate
currently in effect for the elapsed time, in addition to the annual rate for the
upcoming year.
11.4: Any updates, bug fixes or new releases of the Software provided as
part of the Maintenance and Support shall be Used by LICENSEE upon the same
terms and conditions as the original Software.
11.5: Annual Maintenance and Support Fees for the first year of this
Agreement shall be as stated in Schedule(s) A. Annual Maintenance and Support
Fees for the second year of this Agreement shall be seventy-five percent (75%)
of the amount stated for the first year in Schedule(s) A. LICENSOR may increase
such fees beginning with the third year of this Agreement, provided that no such
increase shall exceed the last reported annual increase in the Consumer Price
Index as applied to the Annual Maintenance and Support Fees payable in the year
preceding such increase.
<PAGE>
11.6: Telephone, fax or E-mail support shall be provided on a 24 x 7 basis,
with a guaranteed maximum one (1) hour call-back.
SECTION 12
GENERAL
12.1: Neither party shall have the right to assign or otherwise transfer
its rights or obligations under this Agreement except with the prior written
consent of the other party, which consent shall not be unreasonably withheld;
provided, however, that a successor in interest by merger, by operation of law,
assignment, purchase or otherwise of the business of LICENSOR or LICENSEE may
acquire all the interest of LICENSOR or LICENSEE hereunder.
12.2: Notices permitted or required to be given hereunder shall be deemed
sufficient if given in writing by registered or certified mail, postage prepaid,
return receipt requested, or by delivery of private courier with return receipt
requested, addressed to the respective addresses of the parties as first above
written or at such other addresses as the respective parties may designate by
like notice from time to time. Notices shall be effective upon receipt by the
party to which notice is given, or on the fifth (5th) day following the date
such notice was posted, whichever occurs first.
12.3: No failure by either party to take any action or assert any right
hereunder shall be deemed to be a waiver of such right in the event of the
continuation or repetition of the circumstances giving rise to such right.
12.4: This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof, and supersedes all previous agreements by
and between LICENSOR and LICENSEE as well as all proposals, oral or written, and
all negotiations, conversations, or discussions heretofore had between the
parties related to this Agreement. No modification of this Agreement shall be
binding on either party unless it is in writing and signed by both parties.
12.5: This Agreement will be governed by the procedural and substantive
laws of the State of Minnesota excluding its choice of law rules.
12.6: If any supplement, statement or term thereof is held invalid, this
Agreement and the remaining supplements, statements and terms thereof will not
be affected thereby.
12.7: This Agreement and any supplements to it shall be binding on the
parties only after acceptance at LICENSOR's offices by an officer of LICENSOR.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives.
GLOBAL MAINTECH, INC.
(LICENSOR)
BY: David H. McCaffrey
SIGNATURE: /s/ David McCaffrey
---------------------------------------------
TITLE: Chief Executive Officer
LICENSEE: BURLINGTON NORTHERN RAILROAD COMPANY
BY: Douglas J. Babb
----------------------------------------------------
(type or print)
SIGNATURE: /s/ Douglas J. Babb
---------------------------------------------
TITLE: SVP & Chief of Staff
-------------------------------------------------
<PAGE>
SOFTWARE LICENSE AGREEMENT
EXHIBIT A
Functional Specifications of the Global MAINTECH, Inc. Intelligent Console
System
Each ICS unit shall:
- - Contain CPU with a minimum of 1M cache and 233 Mhz, 128 M of RAM, 2G hard
disk, 4MM DAT
- - Handle ten (10) LPARs plus up to an additional 20 consoles
- - support four (4) simultaneous users
- - Provide remote usage of ICS user interface to an ICS unit via an X terminal
<PAGE>
HARDWARE MAINTENANCE AGREEMENT
BETWEEN
GLOBAL MAINTECH, INC.
&
BURLINGTON NORTHERN RAILROAD COMPANY
This Maintenance Agreement is made as of the date set forth below, between
Global MAINTECH, Inc. ("MAINTECH") and Burlington Northern Railroad Company
("Customer").
SECTION 1
DEFINITIONS
"Maintenance Agreement" means this Hardware Maintenance Agreement including all
exhibits and schedules attached hereto and incorporated herein by reference.
"Customer" shall mean Burlington Northern Railroad Company, The Atchison, Topeka
& Santa Fe Railway Company and their successors and assigns, the purchasers of
Equipment from MAINTECH.
"Equipment" shall mean all hardware purchased by Customer from MAINTECH and
identified on Schedule(s) A, attached hereto and incorporated herein by
reference.
"Designated Site" shall mean all Customer facilities at the Customer Address(es)
indicated on Schedule(s) A or within two miles of such address(es) or such other
Customer facility(ies) to which the Equipment may be relocated by Customer.
"MAINTECH" shall mean Global MAINTECH, Inc.
"Fees" means any monies due MAINTECH as defined hereunder.
SECTION 2
MAINTENANCE PERIOD
The term of the Agreement shall be two (2) years, beginning on the Commencement
Date as defined on Schedule A, unless terminate or extended as hereinafter
provided. MAINTECH shall advise Customer of any proposed renewal of this
Agreement, and proposed fees, not later than ninety (90) days prior to the
expiration of the two year term. MAINTECH and Customer shall negotiate in good
faith with respect to any extension or renewal of the term of this Agreement,
including proposed fees. If the parties are unable to reach agreement as to any
extension or renewal, this Agreement shall terminate at the expiration of the
two year term.
1
<PAGE>
SECTION 3
DESCRIPTION OF SERVICE
During the maintenance period, MAINTECH shall provide maintenance for the
equipment described on Schedule(s) A to this Maintenance Agreement, on a best
efforts basis, so as to assure that the equipment will at all times perform in
accordance with the requirements contained in the published specifications for
the Equipment in effect at the time of execution of this Agreement. Such
maintenance shall include the following: Maintenance service to correct reported
malfunctions of the equipment.
Maintenance service shall be provided on a 24 x 7 basis. MAINTECH agrees to
provide one (1) hour call-back on all requests for maintenance and to provide
on-site service as specified on Schedule(s) A. MAINTECH agrees that any reported
malfunction shall be corrected in not more that 24 hours from receipt of
Customer's report of the malfunction. All services provided shall be at or above
industry standards for services of the type provided.
Replacement parts will be furnished on an exchange basis when installed. At the
time of incorporation into the equipment, all such parts which are replaced
shall become the property of MAINTECH and all replacement parts shall become the
property of Customer. All replacement parts will be new or equivalent to new in
performance.
SECTION 4
CHARGES AND PAYMENTS
(a) For the first year of this Agreement, Customer shall pay MAINTECH the Fees
set forth on Schedule(s) A attached hereto and incorporated herein by reference.
For the second year of this Agreement, Fees shall be seventy-five percent (75%)
of the Fees stated for the first year. The parties acknowledge and agree that
the Fees stated on Schedule(s) A are "lump sum" Fees, which include Customer's
payment for Hardware Maintenance Services under this Agreement and Annual
Software Maintenance and Support Fees under a Separate Software License
Agreement between the parties hereto. No allocation of these Fees has been made
by MAINTECH at this time. MAINTECH agrees to provide Customer with a written
allocation of such Fees, and all documentation supporting such allocation, upon
Customer's written request. Said Fees include all parts, labor, travel and
freight expenses incurred by MAINTECH or its designated agent in the performance
of this Agreement. For services outside of the above, Customer agrees to pay
MAINTECH for the services in the amount set forth in Exhibit A, attached hereto
and incorporated herein by reference. Payment is due thirty (30) days from
invoice. The Fees set forth in Schedule(s) A will be calculated on a calendar
month basis and shall not include any sales, use, duty or similar taxes, which
shall be billed as a separate line item on MAINTECH invoices, if applicable.
Charges for services rendered for less than any full calendar month shall be
prorated.
(b) MAINTECH shall be entitled to payment of additional charges for the
following services, which are not included in the maintenance contract: (i)
repair service on equipment that has been damaged due to improper use,
management or supervision of the equipment, failure to provide a suitable
installation
2
<PAGE>
environment, including, but not limited to, the failure to provide adequate
electrical power, air conditioning or humidity control; causes external to the
equipment, which shall include but not be limited to fire, flood, water, wind,
lightening and electrical malfunctions; (ii) modifications, alterations or
changes made by Customer or by parties other than MAINTECH, provided that such
modifications, alterations or changes have not been authorized or approved by
MAINTECH; (iii) repairs or conditions caused by Customer's use of non-original
parts or services performed by persons other than MAINTECH or its designated
agent, provided that such parts or services have not been authorized by
MAINTECH; (iv) equipment relocation services, including labor, materials and
shipping charges; (v) the first service call after equipment has been moved to a
different location (including a move between rooms) if MAINTECH's approval was
not obtained prior to the actual move. All parts and labor for such services
shall be paid for by Customer at MAINTECH's published standard prices and hourly
rates then in effect.
SECTION 5
CUSTOMER REPRESENTATIVE
At all times during the terms of this Agreement, Customer shall designate one or
more Representatives, for each Designated Site, who shall be responsible for
reacting to all equipment problems and notifying MAINTECH of the need for
service.
SECTION 6
SYSTEM LOCATION
MAINTECH shall have the right to refuse to provide maintenance service under
this Agreement with respect to any equipment or part thereof removed to a
location deemed by MAINTECH to be outside the area of serviceability. In that
event, this Agreement shall be deemed canceled with respect to Equipment at such
location as of the date of MAINTECH's notice of refusal to provide service.
Cancellation charges shall not apply to any cancellation under this section. If
service at a new location causes MAINTECH increased travel time or cost,
Customer agrees to pay reasonable increased charges in connection therewith.
SECTION 7
SYSTEM ADD-ONS
In the event Customer purchases additional Equipment from MAINTECH, Customer
may, at its option, add such additional Equipment to this Maintenance Agreement
by means of execution of an additional Schedule A. The additional charge to
Customer for these services shall be negotiated between MAINTECH and Customer
prior to execution of any supplemental Schedule A.
SECTION 8
INCIDENTAL OR CONSEQUENTIAL DAMAGES
MAINTECH shall not be liable for any consequential damages or loss of profit
resulting from equipment failures at the Customer's site caused by breach of
this Agreement by MAINTECH.
3
<PAGE>
SECTION 9
ASSIGNMENT
MAINTECH shall have the right to designate competent agents in the local area to
act on its behalf in the performance of maintenance services, subject to
Customer's approval, which approval shall not be withheld unreasonably.
Customer's consent to MAINTECH's use of any designated agent shall not relieve
MAINTECH of any obligation hereunder.
SECTION 10
TERMINATION
Customer may terminate maintenance services under this Agreement by giving sixty
(60) days written notice to MAINTECH, at any time after the first full year. In
the event of cancellation by Customer, Customer shall pay a cancellation charge
equal to the lesser of two (2) months charges at the rate prevailing at the time
of cancellation or the remaining portion of the initial two (2) year maintenance
period. MAINTECH shall have the right to terminate this Agreement upon sixty
(60) days written notice to Customer following (i) any alleged breach or default
by Customer of any Agreement with MAINTECH, provided that MAINTECH has given
Customer written notice thereof and the Customer failed to cure or undertake
diligent efforts to cure the alleged breach within thirty (30) days of such
notice, or (ii) any failure by Customer to promptly make payments due and
payable hereunder.
SECTION 11
INSURANCE
MAINTECH shall obtain and maintain in force during the term of this Agreement
the following insurance:
A. Commercial General Liability Insurance, including contractual liability and
products completed/operations, against claims arising out of bodily injury,
illness and death and from damage to or destruction of property of others,
including loss of use thereof, and including liability of Customer, with
minimum limits for bodily injury and property damage of One Million Dollars
($1,000,000) for each occurrence. This policy shall contain a "Waiver of
Transfer Rights/Waiver of Subrogation" endorsement, waiving any right of
recovery that the insurance company may have against Customer because of
payments made for bodily injury and/or property damage.
B. Business Automobile Policy Insurance, including owned, non-owned and hired
vehicles with minimum limits for bodily injury and property damage of One
Million Dollars ($1,000,000) per occurrence, on all vehicles that MAINTECH or
any of its agents, employees or subcontractors may use at any time in
connection with the performance of this Agreement on Customer's property.
C. Worker's Compensation Insurance or coverage as required under the Worker's
Compensation Act of the applicable state. The policy should include
occupational disease to required statutory limits,
4
<PAGE>
employer's liability of One Million Dollars ($1,000,000) (to include FELA, if
appropriate) and an "all states" endorsement. This policy shall contain a
"Waiver of Transfer Rights/Waiver of Subrogation" endorsement to waive any
right of recovery that the insurance company may have against Customer
because of payments made for bodily injuries and/or property damage.
D. Customer shall be named insured under the Commercial General Liability Policy
to be obtained and maintained hereunder. MAINTECH shall provide Customer,
upon Customer's request, a Certificate of Insurance or other document(s)
satisfactory to Customer, evidencing the existence of the insurance required
to be obtained and maintained hereunder.
E. All insurance provided under this section shall be issued by a company
licensed to issue insurance in the state in which the work is to be performed
and carrying a Best's rating of B and Class X or better.
SECTION 12
SECURITY
MAINTECH, its employees, representatives and subcontractors shall comply with
all of Customer's safety and security procedures while on or about Customer's
premises, as MAINTECH, its employees, representatives and subcontractors may be
advised of such procedures from time to time.
SECTION 13
NOTICES
Except for service calls, which shall be made by telephone, notices, requests
and other communications hereunder shall be in writing and delivered personally,
by facsimile transmission or by certified mail, return receipt requested, to
MAINTECH and Customer at the addresses shown on Schedule A. Any notice, request
or other communication shall be effective when received by the addressee
thereof, regardless of any other date that may appear thereon. Either party
hereto may change its address by giving notice thereof to the other party, in
conformity with this section.
SECTION 14
HEADINGS
The paragraph headings used in this Agreement are merely descriptive and form no
part if the Agreement between the parties and are in no way intended to alter
the Agreement contained herein.
SECTION 15
GOVERNING LAW
The existence, validity and construction of this Maintenance Agreement shall be
governed in all respects by the substantive laws of the State of Minnesota.
5
<PAGE>
SECTION 16
SEVERABILITY
Any term or provision of this Agreement which shall prove to be invalid or
illegal shall in no way affect, impair or invalidate any other term or provision
hereof, and such remaining terms and provisions shall remain in full force and
effect.
SECTION 17
FORCE MAJEURE
Except with respect to the obligation to pay money, neither party will be
responsible for delays of failures in performance resulting from acts beyond the
control of each party. Such acts shall include, but not be limited to: acts of
God, strikes, supply or delay, lockouts, riots, acts of war, epidemics,
governmental regulations superimposed after the fact, fire, communication line
failures, power failures, earthquakes or other disasters.
SECTION 18
ENTIRE AGREEMENT
This Agreement together with the schedules and exhibits attached hereto and
incorporated herein by reference, constitutes the entire Agreement between
MAINTECH and Customer with respect to the maintenance of the equipment described
herein, is separate from and independent of the Software License Agreement
between the parties, and it shall not be amended, altered or changed except by a
written agreement signed by the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives as of the date last written below.
Global MAINTECH, Inc.
By: David McCaffrey
-------------------------------------
Signature: /s/ David McCaffrey
-------------------------------------
Title: CEO
Date: February 1, 1996
Burlington Northern Railroad Company
By: Douglas J. Babb
-------------------------------------
Signature: /s/ Douglas J. Babb
-------------------------------------
Title: S.V.P. Chief of Staff
-------------------------------------
Date: 3/21/96
-------------------------------------
6
<PAGE>
HARDWARE MAINTENANCE AGREEMENT
Exhibit A
MAINTECH Time and Materials charges
Labor Charges
Labor (minimum 2 Hours) $125.00 per hour
Travel Charges
Airfare Actual Costs
Car Rental Actual Costs
Personal Vehicle $0.30 per mile
Meal Charges
Partial Day Actual Costs
Full Day Actual Costs or Per Diem
whichever is less
Hotel Charges Actual Costs
Parts Costs List Price**
Shipping Costs
** Non-contract customer can pay list price less 40% with the return of
defective reuseable part to Global MAINTECH. PO must be for full part cost and
they will receive credit once we receive the defective part.
<PAGE>
Schedule A
Software License Agreement and Dated February 21, 1996
Hardware Maintenance Agreement Number ICS009612588
(Collectively referred to on this Schedule A as Agreements)
(pursuant to Master Agreement # ICS 009610000)
BY and BETWEEN Global MAINTECH, Inc. (LICENSOR/MAINTECH) and Burlington Northern
Railroad Company and The Atchison, Topeka & Santa Fe Railway Company, their
successors and assigns, "LICENSEE/CUSTOMER."
LICENSED PROGRAMS: ICS
Intelligent Console System version 2.5
LICENSE COSTS: $(***)
Fee amount to be paid for license of Software, CPU, and
Designated Equipment and maintenance of hardware Equipment
as follows: $(***) as down payment, prior to shipment,
installation and training. The Commencement Date of these
Agreements shall be the date of installation or acceptance
or 30 days after delivery, whichever comes first.
$(***) on the Commencement Date.
MAINTENANCE AND
SUPPORT COSTS: $(***) paid monthly on the first of each month beginning the
first month after the Commencement Date and continuing for
one year and $(***) each month thereafter until terminated
as provided in Section 6 of the Software License Agreement
and in Section 10 of the Hardware Maintenance Agreement, as
applicable.
CPU SERIAL NUMBER: (***)
DESIGNATED SITE: Burlington Northern Railroad, 176 E. 5th Street,
St. Paul, MN 55101-2601
All support and updates are part of the License Agreement as stipulated herein.
Support, service and updates will be made as part of the License Agreement.
Equipment repair or replacement (exclusive of Equipment upgrades) will be made
or performed as part of the Hardware Maintenance Agreement.
DESCRIPTION OF SERVICE: In addition to the description in the Hardware
Maintenance Agreement, MAINTECH agrees to provide one (1) hour call-back on all
requests for maintenance and to provide on-site service within two (2) hours of
any reasonable requests for service.
PAYMENT SCHEDULE:
LICENSEE/CUSTOMER shall pay to LICENSOR/MAINTECH or its Assignee all payments
designated in License Costs and Maintenance Support Costs above.
LICENSEE/CUSTOMER shall pay, on demand, to the extent permitted by applicable
law, interest at the Overdue Rate of 18% annually on any payment due hereunder
which is not received by LICENSOR/MAINTECH or its Assignee on the applicable due
date. Interest shall accrue from the due date until the amount is received.
Assignment by LICENSOR/MAINTECH. LICENSOR/MAINTECH may sell, transfer, grant a
security interest in or assign part or all of its right, title and interest in
and to the payments hereunder, the Software, the Payments or any other sums due
or to become due by LICENSEE/CUSTOMER hereunder, to third parties; and such
third parties may also make such sales, transfers, grants and assignments to
other third parties (all third parties referred to herein being called an
"Assignee" or the "Assignees"). In the event of an assignment of the payments,
(a) such assignment (unless otherwise expressly set forth therein) will not
relieve the original LICENSOR/MAINTECH from its duties and obligations hereunder
and shall not be construed to be an assumption by the Assignee of such
obligation; (b) upon notice from LICENSOR/MAINTECH, LICENSEE/CUSTOMER shall make
all payments for License Costs and other amounts as identified above due under
the assigned payments directly to the Assignee identified in such notice or its
designee; and (c) LICENSEE/CUSTOMER will not, after obtaining knowledge of any
such assignment, consent to any modification of the assigned Agreement without
the consent of any Assignee throughout this Master Agreement shall be deemed to
include any Assignees; provided, however, that the Assignees shall have no
duties and obligations hereunder, except the obligation, so long as no Event of
Default has occurred and the Assignee continues to receive all sums assigned
hereunder, to permit LICENSEE/CUSTOMER to possess, use, and quietly enjoy the
Software according to the terms hereof.
Further Assurances. Upon request of LICENSOR/MAINTECH, LICENSEE/CUSTOMER shall
at any time and from time to time after the execution and delivery of the
Agreement execute and deliver such further documents (including but not limited
to opinions of counsel, acknowledgment, waivers, certificates, and UCC-1
financing statements) and do such further acts and things as LICENSOR/MAINTECH
may reasonably request in order fully to effect the purposes of the Agreement,
and any assignment hereof. LICENSEE/CUSTOMER hereby appoints LICENSOR/MAINTECH,
with full power of substitution, as its agent and attorney-in-fact, which
appointment is irrevocable and coupled with an interest, to execute any
financing statements in LICENSEE/CUSTOMER's name and to perform all other acts
which LICENSOR/MAINTECH deems appropriate and necessary to perfect
LICENSOR/MAINTECH's interest in the Software and payment stream.
In Witness Whereof, LICENSOR/MAINTECH and LICENSEE/CUSTOMER have caused this
Software License Agreement and Hardware Maintenance Agreement and Schedule A
thereto to be executed as of the date first written above.
Global MAINTECH, Inc. Burlington Northern Railroad Company
(LICENSOR/MAINTECH) (LICENSEE/CUSTOMER)
BY: /s/ David McCaffrey BY: /s/ Douglas J. Babb
------------------------ ------------------------
Date: 3/21/96
------------------------
Name: David McCaffrey Name: Douglas J. Babb
------------------------
Title: CEO Title: S.V.P. & Chief of Staff
------------------------
(***) Denotes confidential information that has been omitted from the exhibit
and filed separately, accompanied by a confidential treatment request, with the
Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934.
<PAGE>
BILL OF SALE -2588
For good and valuable consideration in the sum of $(***), Global MAINTECH,
Inc. ("Seller") does hereby sell, transfer and convey to Burlington Northern
Railroad Company, its successors and assigns ("Buyer") its entire right, title
and interest in and to the Equipment, as defined, pursuant to the terms of that
certain Invoice #2588 issued by Buyer to Seller dated February 21, 1996 and
described below:
All hardware listed on the Invoice #2588 and any attachments
thereto. ("Equipment").
Seller makes no warranty or representation, either express or implied, as
to title to, as to the design or condition of, or as to quality of the material,
equipment or workmanship in, the Equipment except as provided in the Hardware
Maintenance Agreement Number ICS009612588 ("Maintenance Agreement"), and beyond
such Maintenance Agreement Seller makes no further warranty of merchantability
or fitness of the Equipment for any particular purpose or any component thereof,
or any other representation or warranty, express or implied, with respect to any
item of Equipment, either upon delivery thereof to Buyer, or otherwise, except
that Seller warrants that it has conveyed to Buyer all of its right, title and
interest in and to the Equipment and that the Equipment is free and clear of
encumbrances created by Seller unrelated to the Schedule A to the Maintenance
Agreement.
Seller agrees to perform, upon the request and at the expense of Buyer,
such further acts and to execute such additional documents as may be necessary
to give effect to the transfer of the Equipment to Buyer in accordance with the
terms of this Bill of Sale.
Global MAINTECH, Inc.
By: /s/ David McCaffrey
-----------------------
Its: CEO
----------------------
Dated: February 21, 1996
(***) Denotes confidential information that has been omitted from the exhibit
and filed separately, accompanied by a confidential treatment request, with the
Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934.
<PAGE>
Schedule A
Software License Agreement and Dated February 28, 1996
Hardware Maintenance Agreement Number ICS009612590
(Collectively referred to on this Schedule A as Agreements)
(pursuant to Master Agreement # ICS 009610000)
BY and BETWEEN Global MAINTECH, Inc. (LICENSOR/MAINTECH) and Burlington Northern
Railroad Company and The Atchison, Topeka & Santa Fe Railway Company, their
successors and assigns, "LICENSEE/CUSTOMER."
LICENSED PROGRAMS: ICS
Intelligent Console System version 2.5
LICENSE COSTS: $(***)
Fee amount to be paid for license of Software, CPU, and
Designated Equipment and maintenance of hardware Equipment
as follows: $(***) as down payment, prior to shipment,
installation and training. The Commencement Date of these
Agreements shall be the date of installation or acceptance
or 30 days after delivery, whichever comes first.
$(***) on the Commencement Date.
MAINTENANCE AND
SUPPORT COSTS: $(***) paid monthly on the first of each month beginning the
first month after the Commencement Date and continuing for
one year and $(***) each month thereafter until terminated
as provided in Section 6 of the Software License Agreement
and in Section 10 of the Hardware Maintenance Agreement, as
applicable.
CPU SERIAL NUMBER:
------------
DESIGNATED SITE: Burlington Northern Railroad, 176 E. 5th Street,
St. Paul, MN 55101-2601
All support and updates are part of the License Agreement as stipulated herein.
Support, service and updates will be made as part of the License Agreement.
Equipment repair or replacement (exclusive of Equipment upgrades) will be made
or performed as part of the Hardware Maintenance Agreement.
DESCRIPTION OF SERVICE: In addition to the description in the Hardware
Maintenance Agreement, MAINTECH agrees to provide one (1) hour call-back on all
requests for maintenance and to provide on-site service within two (2) hours of
any reasonable requests for service.
PAYMENT SCHEDULE:
LICENSEE/CUSTOMER shall pay to LICENSOR/MAINTECH or its Assignee all payments
designated in License Costs and Maintenance Support Costs above.
LICENSEE/CUSTOMER shall pay, on demand, to the extent permitted by applicable
law, interest at the Overdue Rate of 18% annually on any payment due hereunder
which is not received by LICENSOR/MAINTECH or its Assignee on the applicable due
date. Interest shall accrue from the due date until the amount is received.
Assignment by LICENSOR/MAINTECH. LICENSOR/MAINTECH may sell, transfer, grant a
security interest in or assign part or all of its right, title and interest in
and to the payments hereunder, the Software, the Payments or any other sums due
or to become due by LICENSEE/CUSTOMER hereunder, to third parties; and such
third parties may also make such sales, transfers, grants and assignments to
other third parties (all third parties referred to herein being called an
"Assignee" or the "Assignees"). In the event of an assignment of the payments,
(a) such assignment (unless otherwise expressly set forth therein) will not
relieve the original LICENSOR/MAINTECH from its duties and obligations hereunder
and shall not be construed to be an assumption by the Assignee of such
obligation; (b) upon notice from LICENSOR/MAINTECH, LICENSEE/CUSTOMER shall make
all payments for License Costs and other amounts as identified above due under
the assigned payments directly to the Assignee identified in such notice or its
designee; and (c) LICENSEE/CUSTOMER will not, after obtaining knowledge of any
such assignment, consent to any modification of the assigned Agreement without
the consent of any Assignee throughout this Master Agreement shall be deemed to
include any Assignees; provided, however, that the Assignees shall have no
duties and obligations hereunder, except the obligation, so long as no Event of
Default has occurred and the Assignee continues to receive all sums assigned
hereunder, to permit LICENSEE/CUSTOMER to possess, use, and quietly enjoy the
Software according to the terms hereof.
Further Assurances. Upon request of LICENSOR/MAINTECH, LICENSEE/CUSTOMER shall
at any time and from time to time after the execution and delivery of the
Agreement execute and deliver such further documents (including but not limited
to opinions of counsel, acknowledgment, waivers, certificates, and UCC-1
financing statements) and do such further acts and things as LICENSOR/MAINTECH
may reasonably request in order fully to effect the purposes of the Agreement,
and any assignment hereof. LICENSEE/CUSTOMER hereby appoints LICENSOR/MAINTECH,
with full power of substitution, as its agent and attorney-in-fact, which
appointment is irrevocable and coupled with an interest, to execute any
financing statements in LICENSEE/CUSTOMER's name and to perform all other acts
which LICENSOR/MAINTECH deems appropriate and necessary to perfect
LICENSOR/MAINTECH's interest in the Software and payment stream.
In Witness Whereof, LICENSOR/MAINTECH and LICENSEE/CUSTOMER have caused this
Software License Agreement and Hardware Maintenance Agreement and Schedule A
thereto to be executed as of the date first written above.
Global MAINTECH, Inc. Burlington Northern Railroad Company
(LICENSOR/MAINTECH) (LICENSEE/CUSTOMER)
BY: /s/ David McCaffrey BY: /s/ Douglas J. Babb
------------------------ ------------------------
Date: 3/21/96
------------------------
Name: David McCaffrey Name: Douglas J. Babb
------------------------
Title: CEO Title: S.V.P. & Chief of Staff
------------------------
(***) Denotes confidential information that has been omitted from the exhibit
and filed separately, accompanied by a confidential treatment request, with the
Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934.
<PAGE>
BILL OF SALE -2590
For good and valuable consideration in the sum of $(***), Global MAINTECH,
Inc. ("Seller") does hereby sell, transfer and convey to Burlington Northern
Railroad Company, its successors and assigns ("Buyer") its entire right, title
and interest in and to the Equipment, as defined, pursuant to the terms of that
certain Invoice #2590 issued by Buyer to Seller dated February 21, 1996 and
described below:
All hardware listed on the Invoice #2590 and any attachments
thereto. ("Equipment").
Seller makes no warranty or representation, either express or implied, as
to title to, as to the design or condition of, or as to quality of the material,
equipment or workmanship in, the Equipment except as provided in the Hardware
Maintenance Agreement Number ICS009612588 ("Maintenance Agreement"), and beyond
such Maintenance Agreement Seller makes no further warranty of merchantability
or fitness of the Equipment for any particular purpose or any component thereof,
or any other representation or warranty, express or implied, with respect to any
item of Equipment, either upon delivery thereof to Buyer, or otherwise, except
that Seller warrants that it has conveyed to Buyer all of its right, title and
interest in and to the Equipment and that the Equipment is free and clear of
encumbrances created by Seller unrelated to the Schedule A to the Maintenance
Agreement.
Seller agrees to perform, upon the request and at the expense of Buyer,
such further acts and to execute such additional documents as may be necessary
to give effect to the transfer of the Equipment to Buyer in accordance with the
terms of this Bill of Sale.
Global MAINTECH, Inc.
By: /s/ David McCaffrey
----------------------
Its: CEO
----------------------
Dated: February 21, 1996
(***) Denotes confidential information that has been omitted from the exhibit
and filed separately, accompanied by a confidential treatment request, with the
Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934.
<PAGE>
Schedule A
Software License Agreement and Dated February 28, 1996
Hardware Maintenance Agreement Number ICS009612591
(Collectively referred to on this Schedule A as Agreements)
(pursuant to Master Agreement # ICS 009610000)
BY and BETWEEN Global MAINTECH, Inc. (LICENSOR/MAINTECH) and Burlington Northern
Railroad Company and The Atchison, Topeka & Santa Fe Railway Company, their
successors and assigns, "LICENSEE/CUSTOMER."
LICENSED PROGRAMS: ICS
Intelligent Console System version 2.5
LICENSE COSTS: $(***)
Fee amount to be paid for license of Software, CPU, and
Designated Equipment and maintenance of hardware Equipment
as follows: $(***) as down payment, prior to shipment,
installation and training. The Commencement Date of these
Agreements shall be the date of installation or acceptance
or 30 days after delivery, whichever comes first.
$(***) on the Commencement Date.
MAINTENANCE AND
SUPPORT COSTS: $(***) paid monthly on the first of each month beginning the
first month after the Commencement Date and continuing for
one year and $(***) each month thereafter until terminated
as provided in Section 6 of the Software License Agreement
and in Section 10 of the Hardware Maintenance Agreement, as
applicable.
CPU SERIAL NUMBER:
------------------------
DESIGNATED SITE: The Atchison, Topeka and Santa Fe Railway Company, One Santa Fe
Plaza, 920 SE Quincy, Topeka, KS 66612-116
All support and updates are part of the License Agreement as stipulated herein.
Support, service and updates will be made as part of the License Agreement.
Equipment repair or replacement (exclusive of Equipment upgrades) will be made
or performed as part of the Hardware Maintenance Agreement.
DESCRIPTION OF SERVICE: In addition to the description in the Hardware
Maintenance Agreement, MAINTECH agrees to provide one (1) hour call-back on all
requests for maintenance and to provide on-site service within 5 hours of any
reasonable requests for service.
PAYMENT SCHEDULE:
LICENSEE/CUSTOMER shall pay to LICENSOR/MAINTECH or its Assignee all payments
designated in License Costs and Maintenance Support Costs above.
LICENSEE/CUSTOMER shall pay, on demand, to the extent permitted by applicable
law, interest at the Overdue Rate of 18% annually on any payment due hereunder
which is not received by LICENSOR/MAINTECH or its Assignee on the applicable due
date. Interest shall accrue from the due date until the amount is received.
Assignment by LICENSOR/MAINTECH. LICENSOR/MAINTECH may sell, transfer, grant a
security interest in or assign part or all of its right, title and interest in
and to the payments hereunder, the Software, the Payments or any other sums due
or to become due by LICENSEE/CUSTOMER hereunder, to third parties; and such
third parties may also make such sales, transfers, grants and assignments to
other third parties (all third parties referred to herein being called an
"Assignee" or the "Assignees"). In the event of an assignment of the payments,
(a) such assignment (unless otherwise expressly set forth therein) will not
relieve the original LICENSOR/MAINTECH from its duties and obligations hereunder
and shall not be construed to be an assumption by the Assignee of such
obligation; (b) upon notice from LICENSOR/MAINTECH, LICENSEE/CUSTOMER shall make
all payments for License Costs and other amounts as identified above due under
the assigned payments directly to the Assignee identified in such notice or its
designee; and (c) LICENSEE/CUSTOMER will not, after obtaining knowledge of any
such assignment, consent to any modification of the assigned Agreement without
the consent of any Assignee throughout this Master Agreement shall be deemed to
include any Assignees; provided, however, that the Assignees shall have no
duties and obligations hereunder, except the obligation, so long as no Event of
Default has occurred and the Assignee continues to receive all sums assigned
hereunder, to permit LICENSEE/CUSTOMER to possess, use, and quietly enjoy the
Software according to the terms hereof.
Further Assurances. Upon request of LICENSOR/MAINTECH, LICENSEE/CUSTOMER shall
at any time and from time to time after the execution and delivery of the
Agreement execute and deliver such further documents (including but not limited
to opinions of counsel, acknowledgment, waivers, certificates, and UCC-1
financing statements) and do such further acts and things as LICENSOR/MAINTECH
may reasonably request in order fully to effect the purposes of the Agreement,
and any assignment hereof. LICENSEE/CUSTOMER hereby appoints LICENSOR/MAINTECH,
with full power of substitution, as its agent and attorney-in-fact, which
appointment is irrevocable and coupled with an interest, to execute any
financing statements in LICENSEE/CUSTOMER's name and to perform all other acts
which LICENSOR/MAINTECH deems appropriate and necessary to perfect
LICENSOR/MAINTECH's interest in the Software and payment stream.
In Witness Whereof, LICENSOR/MAINTECH and LICENSEE/CUSTOMER have caused this
Software License Agreement and Hardware Maintenance Agreement and Schedule A
thereto to be executed as of the date first written above.
Global MAINTECH, Inc. Burlington Northern Railroad Company
(LICENSOR/MAINTECH) (LICENSEE/CUSTOMER)
BY: /s/ David McCaffrey BY: /s/ Douglas J. Babb
------------------------ ------------------------
Date: 3/21/96
------------------------
Name: David McCaffrey Name: Douglas J. Babb
------------------------
Title: CEO Title: S.V.P. & Chief of Staff
------------------------
(***) Denotes confidential information that has been omitted from the exhibit
and filed separately, accompanied by a confidential treatment request, with the
Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934.
<PAGE>
BILL OF SALE -2591
For good and valuable consideration in the sum of $(***), Global MAINTECH,
Inc. ("Seller") does hereby sell, transfer and convey to Burlington Northern
Railroad Company, its successors and assigns ("Buyer") its entire right, title
and interest in and to the Equipment, as defined, pursuant to the terms of that
certain Invoice #2591 issued by Buyer to Seller dated February 21, 1996 and
described below:
All hardware listed on the Invoice #2591 and any attachments
thereto. ("Equipment").
Seller makes no warranty or representation, either express or implied, as
to title to, as to the design or condition of, or as to quality of the material,
equipment or workmanship in, the Equipment except as provided in the Hardware
Maintenance Agreement Number ICS009612588 ("Maintenance Agreement"), and beyond
such Maintenance Agreement Seller makes no further warranty of merchantability
or fitness of the Equipment for any particular purpose or any component thereof,
or any other representation or warranty, express or implied, with respect to any
item of Equipment, either upon delivery thereof to Buyer, or otherwise, except
that Seller warrants that it has conveyed to Buyer all of its right, title and
interest in and to the Equipment and that the Equipment is free and clear of
encumbrances created by Seller unrelated to the Schedule A to the Maintenance
Agreement.
Seller agrees to perform, upon the request and at the expense of Buyer,
such further acts and to execute such additional documents as may be necessary
to give effect to the transfer of the Equipment to Buyer in accordance with the
terms of this Bill of Sale.
Global MAINTECH, Inc.
By: /s/ David McCaffrey
----------------------------
Its: CEO
----------------------------
Dated: February 21, 1996
(***) Denotes confidential information that has been omitted from the exhibit
and filed separately, accompanied by a confidential treatment request, with the
Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934.
<PAGE>
Schedule A
Software License Agreement and Dated February 28, 1996
Hardware Maintenance Agreement Number ICS009612592
(Collectively referred to on this Schedule A as Agreements)
(pursuant to Master Agreement # ICS 009610000)
BY and BETWEEN Global MAINTECH, Inc. (LICENSOR/MAINTECH) and Burlington Northern
Railroad Company and The Atchison, Topeka & Santa Fe Railway Company, their
successors and assigns, "LICENSEE/CUSTOMER."
LICENSED PROGRAMS: ICS
Intelligent Console System version 2.5
LICENSE COSTS: $(***)
Fee amount to be paid for license of Software, CPU, and
Designated Equipment and maintenance of hardware Equipment
as follows: $(***) as down payment, prior to shipment,
installation and training. The Commencement Date of these
Agreements shall be the date of installation or acceptance
or 30 days after delivery, whichever comes first.
$(***) on the Commencement Date.
MAINTENANCE AND
SUPPORT COSTS: $(***) paid monthly on the first of each month beginning the
first month after the Commencement Date and continuing for
one year and $(***) each month thereafter until terminated
as provided in Section 6 of the Software License Agreement
and in Section 10 of the Hardware Maintenance Agreement, as
applicable.
CPU SERIAL NUMBER:
------------------------
DESIGNATED SITE: The Atchison, Topeka and Santa Fe Railway Company,
One Santa Fe Plaza, 920 SE Quincy, Topeka, KS 66612-116
All support and updates are part of the License Agreement as stipulated herein.
Support, service and updates will be made as part of the License Agreement.
Equipment repair or replacement (exclusive of Equipment upgrades) will be made
or performed as part of the Hardware Maintenance Agreement.
DESCRIPTION OF SERVICE: In addition to the description in the Hardware
Maintenance Agreement, MAINTECH agrees to provide one (1) hour call-back on all
requests for maintenance and to provide on-site service within 5 hours of any
reasonable requests for service.
PAYMENT SCHEDULE:
LICENSEE/CUSTOMER shall pay to LICENSOR/MAINTECH or its Assignee all payments
designated in License Costs and Maintenance Support Costs above.
LICENSEE/CUSTOMER shall pay, on demand, to the extent permitted by applicable
law, interest at the Overdue Rate of 18% annually on any payment due hereunder
which is not received by LICENSOR/MAINTECH or its Assignee on the applicable due
date. Interest shall accrue from the due date until the amount is received.
Assignment by LICENSOR/MAINTECH. LICENSOR/MAINTECH may sell, transfer, grant a
security interest in or assign part or all of its right, title and interest in
and to the payments hereunder, the Software, the Payments or any other sums due
or to become due by LICENSEE/CUSTOMER hereunder, to third parties; and such
third parties may also make such sales, transfers, grants and assignments to
other third parties (all third parties referred to herein being called an
"Assignee" or the "Assignees"). In the event of an assignment of the payments,
(a) such assignment (unless otherwise expressly set forth therein) will not
relieve the original LICENSOR/MAINTECH from its duties and obligations hereunder
and shall not be construed to be an assumption by the Assignee of such
obligation; (b) upon notice from LICENSOR/MAINTECH, LICENSEE/CUSTOMER shall make
all payments for License Costs and other amounts as identified above due under
the assigned payments directly to the Assignee identified in such notice or its
designee; and (c) LICENSEE/CUSTOMER will not, after obtaining knowledge of any
such assignment, consent to any modification of the assigned Agreement without
the consent of any Assignee throughout this Master Agreement shall be deemed to
include any Assignees; provided, however, that the Assignees shall have no
duties and obligations hereunder, except the obligation, so long as no Event of
Default has occurred and the Assignee continues to receive all sums assigned
hereunder, to permit LICENSEE/CUSTOMER to possess, use, and quietly enjoy the
Software according to the terms hereof.
Further Assurances. Upon request of LICENSOR/MAINTECH, LICENSEE/CUSTOMER shall
at any time and from time to time after the execution and delivery of the
Agreement execute and deliver such further documents (including but not limited
to opinions of counsel, acknowledgment, waivers, certificates, and UCC-1
financing statements) and do such further acts and things as LICENSOR/MAINTECH
may reasonably request in order fully to effect the purposes of the Agreement,
and any assignment hereof. LICENSEE/CUSTOMER hereby appoints LICENSOR/MAINTECH,
with full power of substitution, as its agent and attorney-in-fact, which
appointment is irrevocable and coupled with an interest, to execute any
financing statements in LICENSEE/CUSTOMER's name and to perform all other acts
which LICENSOR/MAINTECH deems appropriate and necessary to perfect
LICENSOR/MAINTECH's interest in the Software and payment stream.
In Witness Whereof, LICENSOR/MAINTECH and LICENSEE/CUSTOMER have caused this
Software License Agreement and Hardware Maintenance Agreement and Schedule A
thereto to be executed as of the date first written above.
Global MAINTECH, Inc. Burlington Northern Railroad Company
(LICENSOR/MAINTECH) (LICENSEE/CUSTOMER)
BY: /s/ David McCaffrey BY: /s/ Douglas J. Babb
------------------------ ------------------------
Date: 3/21/96
------------------------
Name: David McCaffrey Name: Douglas J. Babb
------------------------
Title: CEO Title: S.V.P. & Chief of Staff
------------------------
(***) Denotes confidential information that has been omitted from the exhibit
and filed separately, accompanied by a confidential treatment request, with the
Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934.
<PAGE>
BILL OF SALE -2592
For good and valuable consideration in the sum of $(***), Global MAINTECH,
Inc. ("Seller") does hereby sell, transfer and convey to Burlington Northern
Railroad Company, its successors and assigns ("Buyer") its entire right, title
and interest in and to the Equipment, as defined, pursuant to the terms of that
certain Invoice #2592 issued by Buyer to Seller dated February 21, 1996 and
described below:
All hardware listed on the Invoice #2592 and any attachments
thereto. ("Equipment").
Seller makes no warranty or representation, either express or implied, as
to title to, as to the design or condition of, or as to quality of the material,
equipment or workmanship in, the Equipment except as provided in the Hardware
Maintenance Agreement Number ICS009612588 ("Maintenance Agreement"), and beyond
such Maintenance Agreement Seller makes no further warranty of merchantability
or fitness of the Equipment for any particular purpose or any component thereof,
or any other representation or warranty, express or implied, with respect to any
item of Equipment, either upon delivery thereof to Buyer, or otherwise, except
that Seller warrants that it has conveyed to Buyer all of its right, title and
interest in and to the Equipment and that the Equipment is free and clear of
encumbrances created by Seller unrelated to the Schedule A to the Maintenance
Agreement.
Seller agrees to perform, upon the request and at the expense of Buyer,
such further acts and to execute such additional documents as may be necessary
to give effect to the transfer of the Equipment to Buyer in accordance with the
terms of this Bill of Sale.
Global MAINTECH, Inc.
By: /s/ David McCaffrey
------------------------
Its: CEO
-----------------------
Dated: February 21, 1996
(***) Denotes confidential information that has been omitted from the exhibit
and filed separately, accompanied by a confidential treatment request, with the
Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934.
