<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
-----------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): December 31, 1997
SPATIAL TECHNOLOGY INC.
DELAWARE 0-288-42 84-1035353
(State of Incorporation) (Commission File Number) (IRS Employer
Identification No.)
2425 55TH STREET, SUITE 100
BOULDER, COLORADO 80301
(303) 449-0649
(Address of Principal Executive Offices
and telephone number, including area code)
<PAGE> 2
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
(a) On December 31, 1997, pursuant to the terms of the Technology Purchase
Agreement, by and between Spatial Technology Inc. (the "Company") and
Three-Space Limited, a limited company organized under the laws of England
("TSL") (the "Purchase Agreement"), the Company acquired from TSL all right,
title and interest to all software, designs, copyrights, documentation, patents,
trade secrets and other technology or other intellectual property rights that
(i) are incorporated into the ACIS 3.0 software and its related husks (the
"Existing Assets") and (ii) were developed, or were in the process of being
developed, by TSL as of December 31, 1997 pursuant to the Development Agreement
(the "Prior Development Agreement"), by and between the Company and TSL, dated
June 26, 1987, as amended (the "In Process Research") (the Existing Assets and
the In Process Research being collectively referred to as the "Assets"). In
connection with the acquisition of the Assets pursuant to the Purchase
Agreement, the Company granted TSL certain registration rights (the
"Registration Rights") as set forth in the Registration Rights Agreement, by and
between the Company and TSL, dated as of December 31, 1997. Such Registration
Rights Agreement provides that if the Company proposes to register any of its
securities under the Securities Act of 1933, either for its own account or for
the account of other security holders, TSL, or its assignees, is entitled to
notice of the registration and is entitled to include, at the Company's expense,
shares of Common Stock held by it (as defined below).
The consideration provided by the Company in connection with the foregoing
transaction consisted of the following: (i) $850,625.00 in cash and (ii) the
issuance of an aggregate of 250,000 shares of common stock of the Company (the
"Common Stock"). The purchase price was determined through negotiations between
the Company and TSL. The Company funded the cash portion of the consideration
paid to TSL from general working capital.
In connection with the foregoing transaction, the parties forever released
and terminated in their entirety the Prior Development Agreement and the
Marketing Agreement, by and between the Company and TSL, dated May 31, 1989, and
entered into the Software Consulting Agreement, by and between the Company and
TSL, dated as of December 31, 1997 (the "Consulting Agreement"). Pursuant to the
terms of the Consulting Agreement, TSL will provide certain consulting services
to the Company in connection with the development of geometric modeling software
and components; the Company will own all right, title and interest to any
technology developed by TSL in connection therewith.
(b) Not applicable.
<PAGE> 3
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Not applicable.
(b) Not applicable.
(c) Exhibits.
Exhibit Description
Number of Document
------ -----------
10.21* Development Agreement, by and between the Company and
TSL, dated June 26, 1987, as amended.
10.22* Marketing Agreement, by and between the Company and
TSL, dated May 31, 1989, as amended.
10.30 Technology Purchase Agreement, by and between the
Company and TSL, dated as of December 31, 1997.
10.31 Registration Rights Agreement, by and between the
Company and TSL, dated as of December 31, 1997.
10.32 Software Consulting Agreement, by and between the
Company and TSL, dated December 31, 1997.
* Previously filed with the Securities and Exchange Commission as an
exhibit to the Company's Registration Statement on Form SB-2 (File No.
333-5416-D) and incorporated herein by reference thereto.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SPATIAL TECHNOLOGY INC.
Date: January 15, 1998 /s/ R. Bruce Morgan
--------------------------------------
R. Bruce Morgan
President, Chief Operating Officer and
Director
<PAGE> 4
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description
Number of Document
------ -----------
<S> <C>
10.21* Development Agreement, by and between the Company and
TSL, dated June 26, 1987, as amended.
10.22* Marketing Agreement, by and between the Company and
TSL, dated May 31, 1989, as amended.
10.30 Technology Purchase Agreement, by and between the
Company and TSL, dated as of December 31, 1997.
10.31 Registration Rights Agreement, by and between the
Company and TSL, dated as of December 31, 1997.
10.32 Software Consulting Agreement, by and between the
Company and TSL, dated December 31, 1997.
</TABLE>
* Previously filed with the Securities and Exchange Commission as an
exhibit to the Company's Registration Statement on Form SB-2 (File No.
333-5416-D) and incorporated herein by reference thereto.
<PAGE> 1
EXHIBIT 10.30
- --------------------------------------------------------------------------------
TECHNOLOGY PURCHASE AGREEMENT
DATED AS OF DECEMBER 31, 1997
BETWEEN
SPATIAL TECHNOLOGY INC.
AND
THREE-SPACE LIMITED
- --------------------------------------------------------------------------------
<PAGE> 2
TECHNOLOGY PURCHASE AGREEMENT
This TECHNOLOGY PURCHASE AGREEMENT (the "AGREEMENT"), is dated as of
December 31, 1997, by and between SPATIAL TECHNOLOGY INC., a Delaware
corporation (the "COMPANY") and THREE-SPACE LIMITED a limited Company organized
under the Laws of England ("THREE-SPACE").
WHEREAS, the Company has authorized the sale and issuance of an aggregate
of two hundred fifty thousand (250,000) shares of its Common Stock (the
"SHARES") for issuance pursuant to this Agreement;
WHEREAS, the Company and Three-Space are parties to a Development Agreement
dated June 26, 1987, as amended through the date hereof (the "Prior Development
Agreement"), and a Marketing Agreement dated May 26, 1989, as amended through
the date hereof (the "Marketing Agreement") pursuant to which Three-Space has
certain ownership rights to the Existing Assets (as defined in Section 1(a)
hereof) and the In-Process Research (as defined in Section 1(a) hereof) (the
Existing Assets and In-Process Research are hereafter referred to as the
"Transferable Assets"); and
WHEREAS, the Company and Three-Space desire to enter into a new Development
Agreement, transfer all rights of Three-Space to the Transferable Assets and to
terminate and forever release the Prior Development Agreement and Marketing
Agreement in consideration for the Company's issuance to Three-Space (or its
Directors, if requested by Three-Space) the Shares and the payment by the
Company to Three-Space of $850,625US Dollars.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
1. PURCHASE OF TECHNOLOGY.
(a) EXISTING TECHNOLOGY. In consideration for the Company's payment of
250,000 shares of its Common Stock and $850,625.00, US Dollars, THREE-SPACE
hereby assigns, sells, transfers and conveys to the Company all of its right,
title and interest, on a worldwide basis, in and to all software, designs,
copyrights, documentation, patents, trade secrets and any other technology or
intellectual property rights that: (i) are incorporated into the ACIS 3.0
software and its related husks (the " Existing Assets"), (ii) have been or are
in the process of being developed as of December 31, 1997 pursuant to the Prior
Development Agreement (the "In Process Research"). Five hundred thousand dollars
($500,000) of the cash consideration was paid on December 31, 1997 and the
2.
<PAGE> 3
remaining cash consideration shall be paid on January 9, 1997. All stock
consideration shall be payable upon execution of this Agreement provided that,
the Company shall use its best efforts to have its transfer agent issue stock
certificate(s) as soon thereafter as reasonably practicable.
(b) FURTHER COVENANTS AND OBLIGATIONS OF THREE-SPACE FOR TRANSFER. Upon
each request by the Company, THREE-SPACE agrees to promptly execute documents,
testify and take other acts at the Company's expense and as reasonably requested
by the Company in order to apply for and obtain, in the Company's name and for
its benefit, utility and design patents, copyrights, mask works, trademarks,
trade secrets, and all other technology and intellectual property rights
throughout the world related to any of the Transferable Assets, and to transfer,
effect, confirm, perfect, record, preserve, protect and enforce all right, title
and interest transferred hereunder.
2. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to Three-Space as follows:
(i) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware. The
Company has the corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. This Agreement has been duly
executed and delivered by the Company and, assuming the due authorization,
execution and delivery thereof by the Three-Space, constitutes the legal, valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms;
(ii) The execution and delivery by the Company of this Agreement
will not (i) conflict with the Certificate of Incorporation or Bylaws of the
Company, (ii) result in any material breach of any terms or provisions of, or
constitute a material default under, any material contract, agreement or
instrument to which the Company is a party or by which the Company is bound or
(iii) violate in any material respect any law, rule or regulation applicable to
the Company;
3.
<PAGE> 4
(iii) The Common Stock issuable pursuant to this Agreement shall be of
the same class and denomination and shall (subject only to restrictions imposed
under relevant securities legislation) rank pari passu in all respects with
the Common Stock of the Company as listed as at the date hereof on the American
Stock Exchange.
(b) REPRESENTATIONS AND WARRANTIES OF THE THREE-SPACE. Three-Space hereby
represents and warrants to the Company as follows:
(i) Three-Space has the power and authority necessary to execute and
deliver this Agreement and to perform its obligations hereunder. The execution
and delivery by Three-Space of this Agreement and the performance by it of its
obligations hereunder have been duly authorized by all necessary action of
Three-Space. This Agreement has been duly executed and delivered by Three-Space
and, assuming the due authorization, execution and delivery thereof by the
Company, constitutes the legal, valid and binding obligation of Three-Space,
enforceable against Three-Space in accordance with its terms;
(ii) The execution and delivery by Three-Space of this Agreement will
not (i) conflict with the organizational documents of Three-Space, (ii) result
in any material breach of any terms or provisions of, or constitute a material
default under, any material contract, agreement or instrument to which the
Three-Space is a party or by which the Three-Space is bound or (iii) violate in
any material respect any English law, rule or regulation applicable to the
Three-Space;
(iii) Except for the rights of the Company in the Transferable Assets,
Three-Space owns the Transferable Assets and has the right to transfer and
assign such ownership rights to the Company free and clear of all liens and
encumbrances, including but not limited to any tax or similar liens.
(iv) To the best of the knowledge of Three-Space, the Transferable
Assets do not infringe any patent, copyright, trade secret or other proprietary
right of any third party.
(c) INVESTMENT REPRESENTATIONS OF THREE-SPACE. Three-Space represents as
follows:
(i) It is an "accredited investor" as that term is defined in Rule 501
of Regulation D under the Securities Act of 1933, as amended (the "SECURITIES
ACT"), and is acquiring the Shares for investment solely for its own account
and not with a view to or in connection with the distribution thereof
otherwise than any distribution to its Directors or their family members;
4.
<PAGE> 5
(ii) It (i) has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of its
investment in the Shares and has concluded that it is able to bear these risks,
and (ii) fully understands and acknowledges that its investment in the Shares is
a speculative investment which involves a high degree of risk of loss of its
investment;
(iii) It acknowledges that it has been informed by the Company
that the Shares have not been registered under the Securities Act of 1933, as
amended, (the "Act"). As a result, it has been informed that the Shares are
characterized as "restricted securities" under the Act and can be resold without
registration only under certain limited circumstances, such as complying with
the provisions of Rule 144 promulgated under the Act. It is aware that under
Rule 144 the Shares may be resold following the expiration of one year from the
date of issue if the provisions of Rule 144 are satisfied, including the
existence of a public market for the shares, the availability of current public
information about the Company, the sale being effected through a "broker's
transaction" or in a transaction directly with a "market maker" and the shares
being sold do not exceed the volume limitations of Rule 144.
3. MISCELLANEOUS.
(a) BINDING EFFECT; SUCCESSORS AND ASSIGNS. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and assigns. This Agreement may not be assigned by
either party hereto without the prior written consent of the other party
(provided that any sales or other transfers of Shares made in accordance
herewith shall not require such consent).
(b) AMENDMENT; WAIVER. This Agreement may be amended only by a
written instrument signed by the parties hereto. No waiver by either party
hereto of any provision hereof shall be effective unless set forth in a writing
executed by the party so waiving.
(c) GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of New York without
regard to the conflicts of laws provisions thereof.
(d) EXPENSES. Each of the parties hereto shall bear its own expenses.
(e) REGISTRATION RIGHTS. Concurrent with the execution of this
Agreement the Company and the Principals shall enter into a Piggy-Back
Registration Rights Agreement (the "Registration Rights Agreement")
substantially in the form attached hereto as EXHIBIT A.
(f) INTEGRATION; TERMINATION AND RELEASE OF PRIOR DEVELOPMENT
AGREEMENT AND MARKETING AGREEMENT. Except for the provisions of the Software
Consulting
5.
<PAGE> 6
Agreement and Registration Rights Agreement dated the same date hereof, this
Agreement and the documents referred to herein, contain the entire understanding
of the parties. There are no agreements, representations, warranties, covenants
or undertakings of either party other than those expressly set forth above. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to the subject matter hereof and thereof and specifically
terminates and fully releases any obligations of the parties pursuant to the
Marketing Agreement, the Letter Agreement dated December 31, 1997 and Prior
Development Agreement and any amendment, letter agreement or supplement thereto.
(g) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, and by different parties on separate counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the same
instrument.
6.
<PAGE> 7
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by persons duly authorized as of the date first above written.
SPATIAL TECHNOLOGY INC.
By:/s/ RICHARD SOWAR
--------------------------------------
Richard Sowar, Chief Executive Officer
THREE-SPACE LIMITED
By:/s/ CHARLES LANG
--------------------------------------
Charles Lang
7.
<PAGE> 8
EXHIBIT A - PIGGY-BACK
REGISTRATION RIGHTS AGREEMENT
8.
<PAGE> 1
EXHIBIT 10.31
- --------------------------------------------------------------------------------
SPATIAL TECHNOLOGY INC.
REGISTRATION RIGHTS AGREEMENT
DATED AS OF
DECEMBER 31, 1997
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . 1
2. RESTRICTIONS ON TRANSFER . . . . . . . . . . . . . . . . 2
3. REGISTRATION . . . . . . . . . . . . . . . . . . . . . . 3
3.1 Piggyback Registrations . . . . . . . . . . . . 3
3.2 Obligations of the Company . . . . . . . . . . . 4
3.3 Termination of Registration Rights . . . . . . . 5
3.4 Furnish Information. . . . . . . . . . . . . . 5
3.5 Delay of Registration . . . . . . . . . . . . . 5
3.6 Assignment of Registration Rights . . . . . . . 5
4. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . 5
4.1 Governing Law . . . . . . . . . . . . . . . . . 5
4.2 Successors and Assigns . . . . . . . . . . . . . 6
4.3 Addition of other Parties . . . . . . . . . . . 6
4.4 Severability . . . . . . . . . . . . . . . . . . 6
4.5 Amendment and Waiver . . . . . . . . . . . . . . 6
4.6 Notices, etc. . . . . . . . . . . . . . . . . . 6
4.7 Attorneys' Fees . . . . . . . . . . . . . . . . 6
4.8 Titles and Subtitles. . . . . . . . . . . . . . 6
4.9 Counterparts . . . . . . . . . . . . . . . . . . 6
</TABLE>
<PAGE> 3
SPATIAL TECHNOLOGY INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is entered into
as of the 31st day of December, 1997, by and between SPATIAL TECHNOLOGY INC., a
Delaware corporation (the "Company"), THREE SPACE LIMITED, a limited liability
company organized under the laws of the United Kingdom ("TSL"), and such other
parties that may be added to the Agreement by execution of an Additional Party
Signature Page as described in Section 5.3 below (collectively, the
"Investors").
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree that:
1. DEFINITIONS
1.1 The term "HOLDER" means any Investor owning of record Registrable
Securities that have not been sold to the public or any assignee of record of
such Registrable Securities in accordance with Section 2.1 hereof.
1.2 The terms "REGISTER," "REGISTERED," and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement or document.
1.3 The term "REGISTRABLE SECURITIES" means (a) Common Stock of the
Company by the Holders (the "Common stock") and (b) any Common Stock of the
Company issued as (or issuable upon the conversion or exercise of any warrant,
right or other security which is issued as) a dividend or other distribution
with respect to, or in exchange for or in replacement of, such above-described
securities. Notwithstanding the foregoing, Registrable Securities shall not
include any securities sold by a person to the public either pursuant to a
registration statement or Rule 144 or sold in a private transaction in which
the transferor's rights under Section 3 of this Agreement with respect to such
registration rights are not assigned.
1.4 The term "SEC" or "COMMISSION" shall mean the Securities and Exchange
Commission.
1.5 "AFFILIATE" as applied to any Person, means any other Person directly
or indirectly controlling, controlled by# "controlling," "controlled by" and
"under common control with"), as applied to any Person, means the possession,
directly or indirectly, of voting power with the ability to direct the
management and policies of that Person, whether through voting power, by
contract or otherwise. For purposes of this paragraph, "voting power" of any
Person means the total number of votes that may be cast by the holders of the
total number
1.
<PAGE> 4
of outstanding shares of stock of any class or classes of such Person in any
election of directors of such Person.
1.6 "PERSON" shall mean any individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature.
1.7 "FORM S-3" means such form under the Securities Act as in effect on
the date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other document filed by
the Company with the SEC.
1.8 "RULE 144" shall mean Rule 144 of the rules and regulations promulgated
under the Securities Act of 1933, as amended.
1.9 "SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
2. RESTRICTIONS ON TRANSFER
2.1 Each Investor agrees not to make any disposition of all or any portion
of the Registrable Securities unless and until the transferee has agreed in
writing for the benefit of the Company to be bound by this Section 2.1, provided
and to the extent such Section is then applicable and:
(a) There is then in effect a registration statement under
the Securities Act covering such proposed disposition and such disposition is
made in accordance with such registration statement; or
(b) (A) Such Investor shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (B) if
reasonably requested by the Company, such Investor shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company,
that such disposition will not require registration of such shares under the
Securities Act. It is agreed that the Company will not require opinions of
counsel for transactions made pursuant to Rule 144.
(c) Notwithstanding the provisions of paragraphs (i) and
(ii) above, no such registration statement or opinion of counsel shall be
necessary for a transfer by an Investor which is a partnership to its partners
in accordance with partnership interests provided the transferee will be
subject to the terms of this Section 2.1 to the same extent as if he were an
original Holder hereunder.
2.2 Each certificate representing Registrable Securities shall (unless
otherwise permitted by the provisions of the Agreement) be stamped or otherwise
imprinted with a legend substantially similar to the following (in addition to
any legend required under applicable state securities laws or as provided
elsewhere in the Agreement):
2.
<PAGE> 5
First Legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND
UNTIL REGISTERED UNDER THE ACT OR, IN THE
OPINION OF COUNSEL OR BASED ON OTHER WRITTEN EVIDENCE IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO THE ISSUER OF
THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR
HYPOTHECATION IS IN COMPLIANCE THEREWITH.
2.3 The Company shall reissue promptly unlegended certificates at the
request of any holder thereof if the holder shall have obtained an opinion of
counsel (which counsel may be counsel to the Company) reasonably acceptable to
the Company to the effect that the securities proposed to be disposed of may
lawfully be so disposed of without registration, qualification or legend.
2.4 Any legend endorsed on an instrument pursuant to applicable state
securities laws and the stop-transfer instructions with respect to such
securities shall be removed upon receipt by the Company of an order of the
appropriate blue sky authority such removal.
3. REGISTRATION
3.1 PIGGYBACK REGISTRATIONS. The Company shall notify all Holders of
Registrable Securities in writing at least fifteen (15) days prior to the
effectiveness of any registration statement under the Securities Act for
purposes of a public offering of securities of the Company (including, but not
limited to, registration statements relating to secondary offerings of
securities of the Company, but excluding registration statements relating to
employee benefit plans and corporate reorganizations) and will afford each such
Holder an opportunity to include in such registration statement all or part of
such Registrable Securities held by such Holder. Each Holder desiring to
include in any such registration statement all or any part of the Registrable
Securities held by it shall, within twenty (20) days after receipt of the
above-described notice from the Company, so notify the Company in writing. If a
Holder decides not to include all of its Registrable Securities in the
registration statement thereafter declared effective, such Holder shall
nevertheless continue to have the right to include any Registrable Securities in
any subsequent registration statement or registration statements as may be filed
by the Company with respect to offerings of its securities, all upon the terms
and conditions set forth herein.
(a) If the registration statement under which the Company
gives notice under this Section 3.1 is for an underwritten offering, the
Company shall so advise the Holders of Registrable Securities. In such event,
the right of any such Holder to be included in a registration pursuant to#
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their Registrable Securities through such
underwriting shall enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for such underwriting.
3.
<PAGE> 6
If the underwriter determines in good faith that marketing
factors require a limitation of the number of shares to be underwritten, the
number of shares that may be included in the underwriting shall be allocated as
follows: (x) in cases initially involving the registration for sale of Common
Stock for the Company's own account, securities shall be registered in such
offering as follows: (i) first, the shares of Common Stock which the Company
proposes to register, (ii) second, the securities offered by investors pursuant
to the Investors' Rights Agreement dated February 4, 1993, (iii) third, the
Registrable Securities of Holders entitled to exercise "piggy-back"
registration rights pursuant to this Agreement (pro rata based on the amount of
shares of Common Stock sought to be registered by each such Person) and (iv)
fourth, any other shares of Common Stock requested to be included in such
registration; and (y) in cases not initially involving the registration for
sale of Common Stock for the Company's own account, the securities shall be
registered in such offering as follows: (i) first, the Common Stock of any
stockholder whose exercise of a "demand" registration right pursuant to a
contractual commitment of the Company is the basis for the registration, (ii)
second, the Registrable Securities which have been requested to be included in
such registration pursuant to this Agreement together with securities of other
stockholders entitled to exercise "piggy back" registration rights pursuant to
contractual commitments (pro rata based on the amount of Common Stock sought to
be registered by each such Person) (iii) third, the shares of Common Stock
which the Company proposes to register, and (iv) fourth, any other securities
requested to be included in such registration.
If any Holder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by written notice to the
Company and the underwriter, delivered at least five (5) days prior to the
effective date of the registration statement. Any Registrable Securities
excluded or withdrawn from such underwriting shall be withdrawn from the
registration.
(b) The Company shall bear all fees and expenses incurred in
connection with any registration under this Agreement, including without
limitation all registration, filing, qualification, printers" and accounting
fees, fees and disbursements of counsel to the Company, and the reasonable fees
and disbursements of a single counsel to the selling Holders, except that each
participating Holder shall bear its proportionate share of all amounts payable
to underwriters in connection with such offering for discounts and commissions.
3.2 OBLIGATIONS OF THE COMPANY. Whenever required to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder, keep
such registration statement effective for up to ninety (90) days.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
4.
<PAGE> 7
(c) Furnish to the Holders such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities
or Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter(s) of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
3.3 TERMINATION OF REGISTRATION RIGHTS. All registration rights granted
to the Holders under this Section 3 shall terminate and be of no further force
and effect after December 31, 2002.
3.4 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 3 that
the selling Holders shall furnish to the Company such information regarding
themselves, the Registrable Securities held by them, and the intended method of
disposition of such securities as shall be required to effect the registration
of their Registrable Securities.
3.5 DELAY OF REGISTRATION. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 3.
3.6 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company to
register Registrable Securities pursuant to this Section 3 may be assigned by a
Holder to a transferee or assignee of Registrable Securities; provided, however,
that no such transferee or assignee shall be entitled to registration rights
under this Agreement hereof unless it owns a minimum of 25,000 shares of
Registrable Securities (as presently constituted and subject to subsequent
adjustments for stock splits, stock dividends, reverse stock splits and similar
events), and the Company shall promptly be furnished with written notice of the
name and address of such transferee or assignee and the securities with respect
to which such registration rights are being assigned. Notwithstanding the
foregoing, rights to cause the Company to register securities may be assigned to
any subsidiary or parent of a Holder or any partner, member or shareholder of
any Holder.
4. MISCELLANEOUS
4.1 GOVERNING LAW. This Agreement shall be governed in all respects by the
laws of the State of Colorado.
5.
<PAGE> 8
4.2 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors, and administrators of the parties hereto
and shall inure to the benefit of and be enforceable by each person who shall be
a holder of Registrable Securities from time to time; provided, however, that
prior to the receipt by the Company of adequate written notice of the transfer
of any Registrable Securities specifying the full name and address of the
transferee, the Company may deem and treat the person listed as the holder of
such shares in its records as the absolute owner and holder of such shares for
all purposes, including the payment of dividends or any redemption price.
4.3 ADDITION OF OTHER PARTIES. After the date of this Agreement, the
Company may, without the prior consent of the Investors, make additional Persons
a party to this Agreement by executing an "Additional Party Signature Page" in
the form set forth as Exhibit A. Thereafter, the shares of Common Stock held by
such purchaser or issuable upon conversion of securities convertible into Common
Stock shall be deemed "Registrable Securities" and the stockholder holding such
securities shall be deemed a "Holder" for purposes hereof and both of such
definitions shall be deemed duly and properly amended.
4.4 SEVERABILITY. In case any provision of the Agreement shall be invalid,
illegal, or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
4.5 AMENDMENT AND WAIVER. This Agreement may be amended, modified or the
provisions waived only upon the written consent of the Company and the holders
of a majority of the Registrable Securities; provided that, no amendment,
modification or waiver of a right of a Holder that treats such Holder
differently and adversely from other Holders may be effected pursuant to this
section without the separate consent of such adversely treated Holder.
4.6 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be sent by registered or
certified mail, return receipt requested, postage prepaid, and, if to an address
outside the United States of America, by telex or facsimile transmitted
substantially concurrently with the mailing of such written notice, addressed:
(a) if to a Holder, at such Holder's address as set forth on the Company's
records, or at such other address as such Holder shall have furnished to the
Company in writing or (b) if to the Company, at its address as set forth at the
end of this Agreement, or at such other address as the Company shall have
furnished to the Holders in writing.
4.7 ATTORNEYS' FEES. If legal action is brought to enforce or interpret
this Agreement, the prevailing party shall be entitled to recover its reasonable
attorney's fees and legal costs in connection therewith.
4.8 TITLES AND SUBTITLES. The titles of the paragraphs and subparagraphs
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
4.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
6.
<PAGE> 9
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
SPATIAL TECHNOLOGY INC. THREE SPACE LIMITED
2425 55th Street 70 Castle Street
Boulder, Colorado 80301 Cambridge, England
By: /s/ Richard Sowar By: /s/ Charles Lang
----------------------------- --------------------------
Richard Sowar Charles Lang
Chief Executive Officer
<PAGE> 10
EXHIBIT A
SPATIAL TECHNOLOGY INC.
REGISTRATION RIGHTS AGREEMENT, DATED AS OF DECEMBER 31, 1997
ADDITIONAL PARTY SIGNATURE PAGE
INVESTOR:
DATE: _________________, 199__
By:_______________________
Name:_____________________
Title:____________________
<PAGE> 1
EXHIBIT 10.32
SOFTWARE CONSULTING AGREEMENT dated
December 31, 1997 between Spatial
Technology Inc., a Delaware corporation
("STI") and Three-Space Limited, a
limited company organized under the laws
of England ("TSL").
WHEREAS, TSL is engaged in the business of designing, developing and
producing software;
WHEREAS, STI is engaged in the business of designing, developing and
producing software for geometric modeling for a variety of applications (the
"ACIS Software");
WHEREAS, STI and TSL are parties to that certain Development Agreement
dated June 26, 1987 pursuant to TSL developed software and technology for STI
and retained certain rights to such software and technology (the "Retained
Rights");
WHEREAS, STI and TSL are concurrently entering into a Technology
Purchase Agreement pursuant to which TSL is transferring all of its Retained
Rights to STI; and
WHEREAS, TSL has agreed to enter into this new development agreement
providing that STI is the sole owner of all software and technology developed by
TSL pursuant to the agreement.
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, STI and TSL agree as follows:
ARTICLE I
DEFINITIONS
As used herein:
1.1 ACIS SOFTWARE shall mean STI's proprietary 3D modeling engine and
software development tools, including proprietary husks and other components,
each in their most recent versions.
1.2 CODE shall mean the source code and the object code for the
Software and/or ACIS Software or any component thereof.
1.3 FORCE MAJEURE shall mean a strike, walk-out, other labor dispute,
act of God, failure of power, riot, insurrection, act of government or similar
event beyond the control of TSL, which prevents TSL from performing its
obligations under this Agreement or the disability or demise of Alan Grayer or
Ian Braid which prevents him from rendering services pursuant hereto.
1.
<PAGE> 2
1.4 TERM shall mean the period commencing with the date of this
Agreement and continuing perpetually through until termination pursuant to
Section 7.1.
1.5 INTELLECTUAL PROPERTY RIGHTS shall mean all patents, trademarks,
service marks, trade names, copyrights, inventions, trade secrets, proprietary
processes and formulae, applications for patents, trademarks and copyrights, and
other industrial and intellectual property rights.
1.6 PAYMENTS shall have the meaning ascribed to such term in Section
3.1 hereof.
1.7 SOFTWARE shall have the meaning set forth in Section 2.1 hereof.
ARTICLE II
DEVELOPMENT OF SOFTWARE
2.1 ENGAGEMENT. STI hereby engages TSL to provide the services of Alan
Grayer and Ian Braid ("Design Services") for the design, development,
production, enhancement and debugging of geometric modeling software and
components (the "Software") as the Company may from time to time request. In
addition, TSL will make Charles Lang available for the testing of the Software
and to assist STI or its subsidiaries in marketing and distributing ACIS
Software and its related components. Representatives of STI and TSL shall
conduct periodic meetings (in person or by teleconference) to establish the
specifications of the Software to be developed and to establish goals,
objectives and budgets, as appropriate.
2.2 REQUIRED MAN-MONTHS. TSL shall provide an aggregate of 1.8
Man-Months of services per calendar month pursuant to this Agreement, at least
1.4 Man-Months of which shall be Design Services. The parties will negotiate in
good faith from time to time modification to the number of Man-Months to be
provided pursuant to this Agreement.
2.3 OWNERSHIP; LIMITED-USE LICENSE GRANT
(a) STI will own all right, title and interest to and in the
Software and documentation, including but not limited to all Intellectual
Property Rights therein. TSL shall, at any time and from time to time following
execution and delivery of this Agreement, upon the request of STI, execute,
acknowledge, and deliver, and cause to be executed, acknowledged, or delivered,
all such further acts, deeds, endorsements, assignments, transactions,
conveyances or assurances as may be required to confirm or effectuate the
foregoing.
(b) ENFORCEMENT OF RIGHTS. Without limiting the generality of the
foregoing, TSL shall assist STI in every proper way to obtain and from time to
time enforce the Intellectual Property Rights in any and all jurisdictions
reasonably requested by STI and to that end will execute all documents for use
in applying for and obtaining such Intellectual Property Rights and enforcing
such Intellectual Property Rights, as STI may reasonably deem appropriate. STI
shall reimburse TSL for all costs incurred by TSL at STI's request in connection
with the enforcement of its rights under Sections 2.3(a) and 2.3(b).
2.
<PAGE> 3
(c) LICENSES FROM STI TO TSL.
(i) LIMITED LICENSE TO ACIS. During the term of this Agreement
and any extension hereof STI hereby grants to TSL, a non-exclusive,
royalty-free, worldwide, non-transferable license, without any right to
sub-license or distribute, to use and modify STI's ACIS Software for the sole
purpose of providing the Design Services described herein. This ACIS Software
license shall terminate upon termination of this Agreement.
(ii) LIMITED LICENSE TO DEVELOPED SOFTWARE. STI hereby grants
to TSL a perpetual, non-exclusive, royalty-free, worldwide, non-transferable
license, without any right to sub-license or distribute, to use and modify, for
non-commercial purposes only, the Code that was specifically and exclusively
developed by TSL pursuant to this Agreement or the Prior Development Agreement.
ARTICLE III
PAYMENTS
3.1 CONSULTING SERVICES.
(a) CONSULTING FEE. As consideration for the services hereunder,
STI shall pay to TSL, subject to the conditions hereinafter set forth,
10,625 British pounds per Man-Month of services for each month commencing with
January 1, 1998, no later than fifteen (15) days after the beginning of each
month.
(b) CPI ADJUSTMENT. On May 1, 1998 and each anniversary thereafter,
the consulting fee base rate of 10,625 (pound sterling) shall be amended as
follows:
(i) Base index for the United Kingdom, Retail Price Index as
of January 1997 shall be B(O).
(ii) Annual reference rate of the United Kingdom, Retail Price
Index for subsequent years using the January index for each year shall be B(T).
(iii) The rate of increase in the monthly consulting man rate
becomes:
B(T) = R
------
B(O)
(iv) The new consulting man month rate = Base Rate
(10,625) X R
(v) However, for each year R shall not be less than zero
percent nor exceed 7.5% in any one year; provided that in the event the R is
greater than 7.5% per year, then the parties shall mutually agree on the rate of
increase.
3.
<PAGE> 4
3.2 TRAVEL EXPENSES. STI shall reimburse the reasonable travel expenses
of TSL upon presentation of proper documentation in accordance with STI standard
reimbursement policies; provided that, STI shall not be required to reimburse
travel expenses in excess of $1,000 in the aggregate for any trip not approved
by STI in advance.
3.3 FORM, MANNER OF PAYMENT. Each Payment hereunder shall be made in
British Sterling, by delivery of a check payable to the order of TSL or wire
transfer of funds to an account designated by TSL prior to the date such payment
is due or reimbursement is made.
3.4 PURCHASE OF EQUIPMENT AND/OR SOFTWARE. Upon request by TSL, STI
shall purchase for use by TSL such equipment and/or software as STI, in its sole
and exclusive discretion, determines is necessary for the performance of the
services hereunder. Such equipment will remain the property of STI.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF TSL
TSL hereby represents and warrants to STI as follows:
4.1 AUTHORITY. TSL is a limited company duly incorporated and validly
existing under the laws of England and has all requisite power and authority to
enter into this Agreement and to carry out the transactions contemplated hereby.
4.2 NO CONFLICT. The performance by TSL of this Agreement, and the
employment by TSL of any person for purposes set forth herein, does not and will
not violate any agreement of TSL or the employees and other persons engaged by
TSL to provide services hereunder with any third party or infringe upon the
rights (including, but not limited to, any patent, copyright, trade secret or
other proprietary rights) of any other person.
4.3 RESOURCES. TSL possesses (or will possess) financial and
organizational capabilities and resources to perform its other obligations
hereunder and there exists no condition, fact or circumstance known to TSL which
could reasonably be expected to impair the ability of TSL to perform its
obligations hereunder.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF STI
STI hereby represents and warrants to TSL as follows:
5.1 AUTHORITY. STI is a corporation duly incorporated and validly
existing under the laws of the State of Delaware and has all requisite power and
authority to enter into this Agreement and to carry out the transactions
contemplated hereby.
5.2 NO CONFLICT. The performance by STI of this Agreement does not and
will not violate any agreement of STI with any third party, or, to the best
knowledge of STI, infringe upon the rights of any other person.
4.
<PAGE> 5
ARTICLE VI
ADDITIONAL COVENANTS OF TSL
6.1 ACCESS. During the term of this Agreement, including renewals
thereof, TSL will (i) afford to STI, its employees and authorized
representatives, at all reasonable times, reasonable access to, and the right to
inspect and copy, books, records, worksheets and other documentation relating to
the Software and reasonable access to all employees of TSL, and reasonable
access to the properties of TSL for all reasonable purposes (including, but not
limited to, verification of actual expenses, staffing and progress reports and
monitoring, reviewing and inspecting the progress of the development efforts);
(ii) cause each of its employees engaged in the development of the Software to
be available during reasonable business hours for telephones and in-person
conferences at the reasonable request of STI.
6.2 CONFIDENTIALITY. TSL agrees as follows:
(a) during the term of this Agreement, and at all times thereafter,
it shall, and shall take all such steps as may be reasonably necessary to ensure
that at all times all employees or consultants of TSL shall, safeguard and
strictly maintain the secrecy and confidentiality of and the proprietary rights
to the proprietary information of STI, including, but not limited to the
proprietary rights contained in the Software. This obligation shall survive the
expiration or termination of this Agreement under any and all circumstances.
(b) during the term of this agreement, and at all times thereafter,
it shall safeguard and strictly maintain the secrecy and confidentiality of the
Code and any other software or technology provided by STI or its vendors to TSL.
TSL shall take all such steps as may reasonably be necessary to ensure that all
employees or consultants of TSL shall safeguard and strictly maintain the
secrecy and confidentiality of the Code provided, however, that:
(i) without limiting the generality of the foregoing
Information referred to in clause (a) and (b) above (collectively, the
"Confidential Information") shall include, but not be limited to, the sequence
of developments specified by STI; and
(ii) nothing in this Section 6.2 shall be construed to restrict
the disclosure of information which (aa) is publicly known through no fault of
such party, (bb) is lawfully received by a party from a third party not bound in
a confidential relationship to STI, or (cc) is required by law to be disclosed
by such party.
The obligations of confidentiality of TSL set forth in this
Section 6.2 shall survive the expiration or termination of this Agreement under
any and all circumstances.
6.3 NON-COMPETITION.
(a) COVENANT. During the Term TSL will not, and will use its best
efforts to ensure that no employee or consultant of TSL will, sell, license or
market any software product with geometric modeling applications, any software
which is substantially similar in functionality to, or which is substantially a
subset of or superset containing, the Software or the ACIS Software, or (ii)
documentation for such software.
5.
<PAGE> 6
(b) ENFORCEMENT. The provisions set forth in this Section 6.3 are
considered by the parties hereto to be reasonable for the purpose of protecting
the business of STI. However, if such restrictions are found by any court having
jurisdiction to be unreasonable because they are too broad, then such
restrictions shall nevertheless remain effective, but shall be considered
amended as to such protected business, time or area (or any one of them, as the
case may be) as may be considered reasonable by such court, and as so amended
shall be enforced.
6.4 AGREEMENTS FOR EMPLOYEES. Each person performing services hereunder
shall execute a competition, proprietary rights and assignment of inventions
agreement with TSL incorporating the terms relating to non-competition,
confidentiality, proprietary rights and ownership provided in this Agreement, in
form reasonably satisfactory to STI. TSL further agrees that, during the term of
this Agreement, including any renewals thereof, it shall at no time approach or
solicit any of the employees of STI to attempt to induce any such employee to
terminate his employment with STI and begin employment by TSL or any affiliate
of TSL.
STI agrees that, during the term of this Agreement, including any
renewals thereof, it shall at no time approach or solicit any of the employees
of TSL to attempt to induce any such employee to terminate his employment with
TSL and begin employment by STI or any affiliate of STI.
6.5 DELIVERY OF DOCUMENTATION UPON EXPIRATION OF AGREEMENT. In the
event of the expiration or termination of this Agreement for any reason, TSL
will deliver to STI copies of all documents, notes, drawings, specifications,
computer programs, data and other materials of any nature pertaining to the Code
or any confidential information of STI.
6.6 INDEMNIFICATION OF STI FOR INFRINGEMENT OF INTELLECTUAL PROPERTY
RIGHTS OF THIRD PARTIES.
(a) INDEMNIFICATION. TSL agrees to hold STI harmless from and
against any claim or liability for infringement of any Intellectual Property
Rights of any third party whatsoever associated with the use of those components
of the Software developed by TSL under the terms of this Agreement or of any
product embodying or derived from those components of the Software developed by
TSL under the terms of this Agreement except to the extent that such liability
arises as a direct result of infringement by STI of the rights of third parties
in connection with the development by STI of components of the Software or ACIS
Software. In the event of any action, suit, proceeding or claim relating to the
foregoing, TSL shall give STI prompt written notice thereof, and TSL shall have
the right and option to control the defense thereof; provided however, that TSL
shall not agree to the terms of any settlement of any such action, suit,
proceeding or claim without the prior written consent of STI which consent will
not be unreasonably withheld.
(b) LIMITATION OF LIABILITY.
(i) TSL does not warrant that the Software is suitable for the
purposes of any third party utilizing the Software and STI hereby covenants to
indemnify TSL against all or any claim, loss, damages or costs made against or
incurred by TSL in connection with any
6.
<PAGE> 7
claim by any third party arising from the use or sale of any product or
equipment incorporating the Software, save to the extent that such claim arises
from the gross negligence of TSL or by reason of any material breach by TSL of
the warranty contained in Section 4.1 or 4.2.
(ii) Save as expressly provided in this Agreement, TSL shall be
under no liability whatsoever to STI (including without prejudice to the
generality of the foregoing any liability in tort or for consequential damage or
loss of any kind) for any defect in failure of or unsuitability for any purpose
of the Software or any parts thereof and STI hereby accepts the rights conferred
on it by this Agreement in lieu of any other warranty, condition or liability
imposed by common law statute or otherwise relating to the quality or
performance of the Software, with respect to such third party claims; provided,
however, that nothing contained in this Agreement shall exclude or limit or
purport to exclude or limit the liability of TSL in respect of any death or
personal injury caused by the gross negligence of TSL.
ARTICLE VII
TERMINATION OF THE AGREEMENT
7.1 TERMINATION.
(a) BY STI. This Agreement may be terminated by STI, by written
notification from STI to TSL, in any of the following events:
(i) TSL materially breaches any of its obligations under this
Agreement and, if such breach is curable, TSL has not cured such breach within
thirty (30) days following written notice thereof by STI;
(ii) a condition of Force Majeure shall continue to exist for
a period in excess of 60 days;
(iii) an order, judgment or decree is entered adjudicating TSL
bankrupt or insolvent; or TSL shall commence any case, proceeding or other
action relating to it in bankruptcy or seeking reorganization, liquidation,
dissolution, winding-up, arrangement, composition or readjustment of its debts,
or for any other relief, under any bankruptcy, insolvency, reorganization,
liquidation, dissolution, arrangement, composition, readjustment of debt or
other similar act or law of any Jurisdiction, domestic or foreign, now or
hereafter existing or TSL shall apply for a reorganization custodian or trustee
of it or for all or a significant part of its property (save in the case of a
solvent reorganization or reconstruction); or TSL shall make an assignment for
the benefit of creditors; or shall be unable to, or shall admit in writing the
inability to, pay its debts as they become due; or TSL shall take any action
indicating its consent to, approval of, o. acquiescence in, or in furtherance
of, any of the foregoing; or
(iv) any case, proceeding or other action against TSL shall be
commenced in bankruptcy or seeking reorganization, liquidation, dissolution,
winding-up, arrangement, composition or readjustment of its debts, or any other
relief, under any bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement, composition, readjustment of debt or other similar act
or law of any jurisdiction, domestic or foreign, now or hereafter existing; or a
receiver, custodian or trustee of TSL or for all or a substantial part of their
7.
<PAGE> 8
respective properties shall be appointed; or a warrant of attachment, execution
or distraint, or similar process, shall be issued against any substantial part
of the property of TSL; and in each such case such condition shall continue for
a period of 60 days undismissed, undischarged or unbonded.
(v) The occurrence of any condition, event or act which, with
or without notice or lapse of time or both, could constitute a material breach
of the representations and warranties set forth in Article IV hereof or Ian
Braid, Charles Lang or Alan Grayer shall no longer remain employed by TSL
otherwise than by reason of their disability or demise and rendering services in
connection with the services being performed by TSL for STI hereunder.
(b) BY TSL. This Agreement may be terminated by TSL, by written
notification from TSL to STI, in any of the following events:
(i) STI materially breaches any of its obligations under
Article III of this Agreement and, if such breach is curable, STI has not cured
such breach within thirty (30) days following written notice thereof by TSL;
(ii) an order, judgment or decree is entered adjudicating STI
bankrupt or insolvent; or STI shall commence any case, proceeding or other
action relating to it in bankruptcy or seeking reorganization, liquidation,
dissolution, winding-up, arrangement, composition or readjustment of its debts,
or for any other relief, under any bankruptcy, insolvency, reorganization,
liquidation, dissolution, arrangement, composition, readjustment of debt or
other similar act or law of any Jurisdiction, domestic or foreign, now or
hereafter existing (save in the case of a solvent reorganization or
reconstruction); or STI shall apply for a receiver, custodian or trustee of it
or for all or a substantial part of its property; or STI shall make an
assignment for the benefit of creditors; or STI shall be unable to, or shall
admit in writing the inability to, pay its debts as they become due; or STI
shall take any action indicating its consent to, approval of, or acquiescence
in, or in furtherance of, any of the foregoing; or
(iii) any case, proceeding or other action against STI shall be
commenced in bankruptcy or seeking reorganization, liquidation, dissolution,
winding-up, arrangement, composition or readjustment of its debts, or any other
relief, under any bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement, composition, readjustment of debt or other similar act
or law of any jurisdiction, domestic or foreign, now or hereafter existing; or a
receiver, custodian or trustee of TSL or for all or a substantial part of their
respective properties shall be appointed; or a warrant of attachment, execution
or distraint, or similar process, shall be issued against any substantial part
of the property of STI; and in each such case such condition shall continue for
a period of 60 days undismissed, undischarged or unbonded.
(iv) STI shall sell all or substantially all of its assets or
all right, title and interest to the ACIS Software to a third party, or STI
shall enter into a merger, consolidation or reorganization pursuant to which the
stockholders immediately before the transaction own less than 50% of the
outstanding common stock immediately following such transaction; provided that,
TSL shall provide STI with one year's advanced written notice prior to such
termination.
8.
<PAGE> 9
(c) BY TSL OR STI. Either party may terminate this agreement for
convenience, with or without cause, by providing the other party advanced
written notice not less than two years prior to termination.
7.2 SUSPENSION. Notwithstanding anything in this Article VIII to the
contrary, in the event of a condition of Force Majeure, TSL may suspend the
development of the Software and STI may suspend any scheduled Payments, for any
period during which the condition of Force Majeure shall continue to exist. TSL
shall use its best efforts to reduce or eliminate the effects of such Force
Majeure. Immediately upon the termination of the condition of such Force
Majeure, the development of the Software shall recommence.
7.3 EFFECT OF TERMINATION. In the event of termination pursuant to
Section 7.1(a) or (b) or upon the expiry of notice under Section 7.1(c), the
development of the Software shall forthwith cease and terminate and, the
obligations of STI hereunder shall immediately cease and terminate; provided,
however, that STI shall continue to remain responsible for any accrued unpaid
Payments pursuant to Article III hereof, and that Sections 6.2, 6.3, 6.6 and
Article 8 hereof shall in any event survive such termination. All other
agreements and covenants of the parties hereto contained herein shall survive or
terminate (as the case may be) in accordance with their respective terms.
Termination pursuant to Section 7 hereof shall not prejudice the rights of the
parties in respect of a breach of this Agreement prior to such termination. The
rights and remedies of the parties hereto under this Agreement are cumulative
and not exclusive of any rights or remedies which such parties would otherwise
have.
ARTICLE VIII
MISCELLANEOUS
8.1 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
8.2 JURISDICTION. Each of TSL and STI hereby irrevocably submit to the
non-exclusive jurisdiction of the United States District Court for the Southern
District of New York and any court of the State of New York located in the City
of New York, in any action, suit or proceeding arising in connection with this
Agreement, and irrevocably waives any objection which it may now or hereafter
have to the laying of venue or to the jurisdiction of any such court in any such
action, suit or proceeding.
8.3 NO WAIVER. A failure of either party to require performance by the
other party of any obligation hereunder shall not affect its right to require
such performance thereafter. The waiver by either party of a breach by the other
party of any provision hereof shall not be construed as a waiver of any
succeeding breach of such provision or of the provision itself.
8.4 SUCCESSORS AND ASSIGNS. Subject to the provisions of this Section
8.4, this Agreement shall bind and inure to the benefit of TSL and STI, and the
successors of STI by reorganization, merger, consolidation or otherwise, and any
assignee of all or substantially all of the business and properties of STI.
Neither this Agreement nor any rights or benefits hereunder
9.
<PAGE> 10
may be assigned by TSL without the prior written consent of STI (which consent
shall not be unreasonably withheld).
8.5 ENTIRE AGREEMENT. This Agreement and the other writings referred to
herein or delivered pursuant hereto which form a part hereof contain the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous arrangements or understandings with
respect thereto, including, without limitation the Development Agreement dated
June 26, 1987 between TSL and STI and the letter agreement dated December 31,
1997.
8.6 NOTICES. All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument delivered in person, duly sent by first class mail, or
international courier service, postage prepaid, or transmittal by international
telecopy or fax transmission addressed to such party at the address set forth
below or such other address as may hereafter be designated in writing by the
addressee to the addressor listing all parties:
If to STI, to:
Spatial Technology Inc.
2425 55th Street, Suite 100
Boulder, Colorado 80301
Attention: President
Telecopy/Fax: 303-449-0926
If to TSL, to:
Three-Space Limited
70 Castle Street
Cambridge CB3 0AJ
England
Attention: Charles Lang
FAX: 011-44-1223-460268
All such notices, advices and communications shall be deemed to have been
received on the date of confirmation thereof by the addressee, or,
alternatively, (a) in the case of mailing, on the third business day following
the date of such mailing; (b) in the case of delivery by international courier
service, on the second business day following the date of delivery to such
service, and (d) in the case of telecopy/fax transmission, on the business day
next following such transmission.
8.7 CHANGES. The terms and provisions of this Agreement may not be
modified or amended, or any of the provisions hereof waived, temporarily or
permanently, except pursuant to the written consent of TSL and STI.
8.8 COUNTERPARTS. This Agreement may be executed any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
10.
<PAGE> 11
8.9 HEADINGS. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be a part of this Agreement.
8.10 NOUNS AND PRONOUNS. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter forms,
and the singular form of names and pronouns shall include the plural and
vice-versa.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
11.
<PAGE> 12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized representatives as of the date first
above written.
THREE-SPACE LIMITED
By: /s/ CHARLES LANG
------------------------------------
Name: Charles Lang
SPATIAL TECHNOLOGY INC.
By: /s/ RICHARD SOWAR
------------------------------------
Name: Richard Sowar, Chief Executive
Officer
12.
