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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 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): March 9, 1998
SVI Holdings, Inc.
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(Exact Name of Registrant as Specified in its Charter)
Nevada
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(State or Other Jurisdiction of Incorporation)
33-36125-D 84-1131608
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(Commission File Number) (IRS Employer Identification No.)
7979 Ivanhoe Avenue, Suite 500, La Jolla, California 92037
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(Address of Principal Executive Offices) (Zip Code)
(619) 551-2365
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(Registrant's telephone number, including area code)
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(Former Name or Former Address, if Changed Since Last Report)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On March 9, 1998, the Registrant's wholly-owned subsidiary, IBIS
Systems Limited ("IBIS"), entered into an agreement to acquire certain assets
(the "Assets") of Multisoft Financial Systems Limited ("Multisoft"), a wholly
owned subsidiary of The Sage Group Plc. The agreement became effective as of
March 2, 1998 (the "Transaction").
The purchase price for the Assets is 3,863,000 British pounds (or
$6,478,251 based upon the March 20, 1998 quoted exchange rate of 1 British pound
to $1.677). The source of funds for the acquisition was the working capital of
the Company. IBIS has for the past 4 1/2 years been a reseller of certain
financial software products offered by Multisoft under the terms of a Multisoft
Reseller Agreement.
Among many other services and products, Multisoft offers a service
called "Multisoft Direct" to its customers. The Multisoft Direct service
supplies certain financial software applications to businesses and provides
training and support for those applications. The Assets acquired in the
Transaction are limited to approximately 1,000 Multisoft Direct service
contracts and related information, the goodwill associated with the contracts,
certain prepayments in the amount of 863,000 British pounds (which amount has
been remitted to IBIS), the non-exclusive right to use certain training manuals
in the United Kingdom, and a relatively small amount of equipment valued at
96,966 British pounds. The contracts have already been substantially performed
by Multisoft and only the service and support component remains to be performed.
IBIS intends to use the opportunity to introduce its products to Multisoft
customers represented by the service contracts. IBIS presently intends
introducing such customers to its own products and those of the Company and its
affiliates.
IBIS also has the right to employ certain former Multisoft employees
who currently market the Multisoft Direct service. IBIS has not yet decided
which, if any, former Multisoft employees to hire and on what basis. Multisoft
is prohibited from soliciting its former Multisoft Direct customers for training
and software support services for a period of five years. The Assets do not
include any intellectual property or associated goodwill, books or records of
Multisoft, receivables, physical facilities or trademarks or trade names. IBIS
will have the right for a brief period to enter the Multisoft facilities in
order to assist the transition in servicing of the Multisoft Direct service
contracts.
The revenue stream from Multisoft Direct clients is currently
relatively small, and the Company intends to renegotiate many of the existing
service contracts and sell the customers new products of the Company and/or its
affiliates.
The purchase price for the Assets was determined in arm's length
negotiations between IBIS and Multisoft and took into account such factors as
the quality of the current Multisoft Direct customer base, the cash flows from
the service contracts the ability of IBIS to market the Company's other products
and services to the Multisoft Direct customers and the desirability of IBIS
products to Multisoft Direct customers.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial statements of business acquired.
The Assets acquired from Multisoft do not constitute a
"business" as that term is defined by the Securities Exchange Commission in
Regulation S-X, Section 11-01(d). The principal value to the Company of the
Assets is the ability of IBIS to market its existing products and services to
the Multisoft Direct customers. The Company expects the revenue base represented
by the Assets to change significantly after the acquisition. Financial
information concerning the Assets would not therefore be material to an
understanding of the value of the Assets on a going-forward basis. Accordingly,
financial statements concerning the Assets are not included with this report.
(b) Pro forma financial information.
Pro forma financial information relative to the acquisition of
the Assets will be filed by an amendment to this Form 8-K no later than May 25,
1998.
(c) Exhibits.
10.21 Agreement between Multisoft Financial Systems Limited and The
Sage Group Plc. and IBIS Systems Limited dated March 9, 1998.
10.22 Amendment Agreement between Multisoft Financial Systems Limited
and The Sage Group Plc. and IBIS Systems Limited dated March 9, 1998.
10.23 License to Occupy between Multisoft Financial Systems Limited
and IBIS Systems Limited dated March 9, 1998.
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SIGNATURE
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 hereto duly authorized.
Date: March 24, 1998
SVI HOLDINGS, INC.
(Registrant)
By: /s/ David Reese
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David Reese
Chief Financial Officer
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MULTISOFT RESELLER AGREEMENT
DATED _________
BETWEEN
MULTISOFT FINANCIAL SYSTEMS LIMITED
CROSS & PILLORY HOUSE
CROSS & PILLORY LANE
ALTON
HANTS GU34 1HL
AND
IBIS SYSTEMS LIMITED
2 TWYFORD PLACE, LINCOLN'S INN
CRESSEX INDUSTRIAL ESTATE
HIGH WYCOMBE
BUCKINGHAMSHIRE
HP12 3RE
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CONDITIONS OF CONTRACT
With effect from the date on the front of this agreement all dealings between
Multisoft and the Reseller for the supply of the Products to Direct Customers or
the provision of the service shall be made under the terms of this agreement
save as indicated herein.
1. DEFINITIONS
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(a) "the Products" means Sage Prestige, Sage Prestige Plus, Sage
Premier and Sage Premier Plus.
(b) "Multisoft" means Multisoft Financial Systems Limited and its
Holding, Subsidiary and associated companies from time to
time.
(c) "The Reseller" means that company identified on the front of
the agreement and its holding subsidiary or associated
companies from time to time.
(d) "Customer" means the individual, partnership or legal entity
to whom the Reseller either issues a sub-licence to use the
Products or to whom the Reseller provides a support service.
(e) "Malfunction" means a proven error in a mathematical
calculation within the Products or an error which causes the
system to substantially fail to operate. It does not include
any additions to or modifications of the Products to provide
additional or amended functionality.
(f) "Supported Platform" means one application type (e.g., Premier
Plus) running on one operating system type (e.g. SCO Unix).
2. SALES AND SUB-LICENSING
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2.1. Multisoft shall supply subject to the terms of this
agreement the Products which the Reseller has been accredited to sell.
2.2. Multisoft hereby authorizes the Reseller to issue a sub
licence to the End User for those Products properly purchased from Multisoft.
2.3. The Reseller shall properly register all sub licences
granted to customer with Multisoft and shall ensure that any changes in the
circumstances of the Customer relevant to the Products will be communicated to
Multisoft.
2.4. Multisoft shall issue the initial passcode to the
Reseller for all prpoerly registered customers. Such passcode will allow the
Customer access to the Products for a period of one year. Multisoft shall then
annually provide without charge a new passcode to all customers who have been
properly registered with it.
2.5. The Reseller shall ensure that each customer's details
are correct at each annual re-registration.
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2.6. The Reseller agrees to only sub-licence the Products on
the terms of Multisofts user licence contained in the manual and to draw the
customers attentionto the said licence prior to registering the customer with
Multisoft.
2.7. The Reseller agrees to only sell the Products on an
environment currently available for sale. Such schedule may be amended from time
to time by Multisoft by giving at least 30 days notice.
2.8. The Reseller agrees not to supply another site of the
Customer or to a holding subsidiary or associated company of the customer with a
version of the Products without paying the appropriate licence fee.
2.9. Multisoft shall charge the Reseller the amounts
identified in the Sale of Business Agreement to which this document is annexed.
Multisoft reserves the right to amend the RRP or discounts applicable by giving
30 days notice to the Reseller.
2.10. The Reseller agrees to pay for all the Products and
services acquired from Multisoft on cash with order unless Multisoft allows the
Reseller credit terms and hereby agrees to pay all sums due to Multisoft in
accordance with the terms granted by cheque or Direct Debit on the due day.
2.11. Intentionally deleted.
2.12. The Reseller shall inform Multisoft of any of the
Resellers supported Customers who go into receivership liquidation or bankruptcy
and thereby terminate their licence to use the Products. The Reseller is
reminded that the licence is individual to the company to whom it is licenced
and may not be transferred to any other organisation or company.
3. RESELLER OBLIGATIONS SALES AND MARKETING
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3.1. The Reseller shall maintain the capability facilities
and personnel necessary to perform its obligations under this agreement and to
maintain the standards set from time to time by Multisoft to be accredited to
sell the Products or any part thereof.
3.2. The Reseller shall always represent Multisoft and the
Products in the best light andin particular shall avoid deceptive misleading or
unethical practices or be involved in the publication or utilisation of any
misleading or deceptive advertising materials or make representations warranties
or guarantees with respect to Multisoft or the Products that are inconsistent
with those made by Multisoft and at all times conduct its business in such a way
that at no time will the reputation of Multisoft or the Products be damaged by
the Resellers words or actions.
3.3. Intentionally deleted.
3.4. The Reseller agrees not to alter, reverse engineer,
decompile, translate, reproduce, electronically distribute or market the
Products by any means without the express written permission of Multisoft. If
the Reseller wishes to achieve the interoperability of any independently created
computer program with the Products, Multisoft shall make the necessary
information available to the Seller subject to terms to be agreed.
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3.5. The Reseller agrees not to duplicate or copy the
Products or the Customers Products or supply a copy of the Products or the
Customers Products to any Customer.
3.6. The Reseller agrees not to distribute sell or make
vailable in any other way the Products or any part thereof to another Reseller
or another Resellers customers at the request of the other Reseller or the
customer save where the supplying Reseller has taken on the support of the
customer and has registered this with Multisoft. The Reseller further agrees not
to act in any manner or do anything that may be construed as acting as, or
purported to be, a distributor of the Products. If Multisoft receives a request
for the supply of the Products where the customer has not been registered as
supported by the Reseller and a valid purchase order received for the
re-registration fee, then Multisoft reserves the right to refuse supply the
Products.
3.7. Where Multisoft launches either new Products or major
enhancements then at least one individual from the Reseller must attend the
appropriate training courses.
3.8. The Reseller shall not approach any of Multisofts
employees with a view to offering them employment or Consultancy work and shall
not employ any persons employed by Multisoft within the previous six months
without the express written approval of a Director of Multisoft. Furthermore if
an employee of Multisoft shall approach the Reseller the Reseller shall inform a
Director of Multisoft immediately.
3.9. The Reseller acknowledges that in the course of
performing its obligations hereunder it will receive information that is
confidential and proprietary to Multisoft. The Reseller agrees not to use such
information except in the performance of this agreement and not to disclose such
information to a third party.
3.10. The Reseller hereby undertakes at its own expense to
ensure that its employees are aware of the confidential nature of the Products
and that they will be bound by employment agreements the provisions of which
substantially match those of this agreement.
3.11. The Reseller may use the Multisoft Trade marks after
receiving approval in writing from a Director of Multisoft. The Reseller further
agrees that on all matters relating to the use of Multisofts trade name, logo
and trademarks shall clearly identify that the same belong to Multisoft. The
Reseller shall not use the trademarks, which it admits are Multisofts sole and
exclusive property, in any manner which is liable to invalidate the registration
thereof. Multisoft only allows the right to use the trademarks to the extent
that it is able to do so without endangering the validity of the registration.
All uses of the trademark must be accmpanied by the designation "TM".
3.12. The Reseller shall indemnify Multisoft (including
reasonable legal fees and cost of litigation) against and hold Multisoft
harmless from any and all claims by any other party resulting from the Resellers
acts (other than the mere marketing of the Products) omissions or
misrepresentations regardless of the form of the action.
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3.13. Whenever a customer is referred to the Reseller by
Multisoft the Reseller shall not to sell to that customer any computer product
which is substantially competitive to the Products.
SUPPORT SERVICES
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3.14. The Reseller agrees to maintain at least two full time
employees who are fully trained to be able to support the Products.
3.15. The Reseller will register all customers taken on
support by the Reseller where the original Product was not supplied by the
Reseller within 30 days of the earlier of the signing the Support Contract or
the invoicing for the support fee or the provision of a support service. This
agreement automatically terminates should the Reseller fail to register with
Multisoft any customer taken on in this manner within the prescribed time scale.
3.16. The Reseller agrees to employ members of staff
conversant with and proficient in the support of the Products and the current
operating systems environments which work in conjunction with the Products. The
Reseller shall conduct or provide such training of its personnel as is necessary
to impart such knowledge.
3.17. The Reseller agrees to thoroughly investigate identify
and document the conditions that will consistently cause a possible malfunction
of the Products and then to notify Multisoft.
3.18. The Reseller agrees to provide written descriptions of
the problems as requested from time to time by Multisoft.
3.19. The Reseller agrees to perform such system tests on
customers programs data and hardware that are requested by Multisoft.
3.20. The Reseller agrees the Reseller shall upgrade
Customers, using unmodified Products, on to the most recent realse of the
Products as soon as pracicable and no later than 60 days after receipt of the
new release of the Products from Multisoft save where the Customer has Products
modified by Multisoft.
3.21. The Reseller agrees to adequately test as correct any
new releases or fixes to individual malfunctions prior to installing on a
Customer's site. To report any problems or possible malfunctions which have been
throoughly investigated within any new release or fix to an individual
malfunction.
3.22. The Reseller agrees to ensure that no modifications are
made to the Products other than at the direction of Multisofts personnel.
3.23. The Reseller shall not supply any updates, new versions
of the Products or parts thereof to any other Reseller or to a customer of
another Reseller save where the Reseller has registered the customer as being
supported by the Reseller and has provided a valid purchase order for the
re-registration fee.
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3.24. The Reseller shall not approach any of Multisofts
directly supported Customers without the specific written permission of a
Director of Multisoft.
4. MULTISOFT OBLIGATIONS
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4.1. Whilst this agreement subsists Multisift shall not
establish a direct business relationship with the Resellers Customers except at
the request of the Reseller.
4.2. Multisoft shall provide a training service at commercial
rates to train the Resellers staff in the operation of the Products.
4.3. Multisoft shall supply the Products on the terms stated
herein.
4.4. Multisoft shall continue to provide the Products for
sale on the supported environments subject to 30 days notice in writing of the
removal of the Products from an environment.
5. SUPPORT SERVICE
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5.1. Multisoft shall proride the service for the Resellers
Customers whom the Reseller has registered as being supported by the Reseller
and subject to the Reseller paying the monthly charges and on the terms provided
herein.
5.2. Multisoft shall ensure that appropriately qualified
members of staff shall be available between the hours of 9am to 5pm Monday to
Friday (except Public Holidays) to deal with, process, advise and act upon
telephone or facsimile or written enquiries regarding the operation or possible
or actual malfunction of the Products.
5.3. All written or faxed notifications must be made on the
Multisofts standard Software Report Form (SRF).
5.4. Subject to the maintenance charges payments being up to
date Multisoft shall use its reasonable endeavours to respond within 30 minutes
in 90% of notifications to any notification it receives pursuant to clause 5.2
from the Reseller that the software has or is believed to have malfunctioned.
5.5. To provide an investigation service to diagnose possible
Malfunctions of the Products. Should such investigation prove that the
malfunction is related to the Products then such service is free. If the
malfunction should relate to date corruption or other faults not related to the
operation of the Products then the service will be charged for at Multisoft's
then current daily rates.
5.6. Multisoft shall use its reasonable endeavours to fix
such malfunctions as are confirmed by Multisoft, for Customers supported by the
Reseller and logged with Multisoft as supported by the Reseller, and despatch
such fixes as may be necessary to the Reseller.
5.7. Intentionally deleted.
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5.8. Multisoft shall use its reasonable endeavours to provide
new versions of the current supported Products hereto that are required by
changes to government legislation. Multisoft however reserves the right to
charge the Reseller for such new versions of the Product and for the media on
which they are supplied.
5.9. At the Resellers request and subject to Multisoft having
the resources available Multisoft will provide site visits to the Resellers
customers to fix malfunctions of the Products, such visits to be charged at
Multisofts then current daily charge out rate.
5.10. Intentionally deleted.
5.11. Intentionally deleted.
5.12. Intentionally deleted.
5.13. Multisoft shall support a version of the Products for
up to 6 months after it is released.
5.14. Intentionally deleted.
5.15. The following are not included in the service:
5.15.1. Support of other software, accessories,
attachments, machines systems or other software other than the Products or which
the Reseller is not accredited to support.
5.15.2. Rectification of lost or corrupt date or
programs arising for any reason.
5.15.3. Support of any Products modified or altered
by any person other than Multisoft. Support for Products modified by Multisoft
shall be provided under a separate agreement.
5.15.4. Support for any Product used outside its
design or specification or outside the provisions laid down in any manual
supplied with the Products.
5.15.5. Diagnosis and/or rectification of potential
or actual malfunctions not associated with the operation of the Products.
5.15.6. Corrections or date corruptions caused by
third party software or software written by the Reseller.
5.15.7. The magnetic media for the provision of the
service. Such media will be charged for unless returned.
5.15.8. Any Products installed on operating
environments that are not supported by Multisoft.
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5.15.9. User Manuals.
6. SUPPORT FEES
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6.1. Multisoft shall charge the Reseller for the support
service in accordance with clause 2.9 hereof which may be amended from time to
time by Multisoft by giving at least 30 days notice in writing.
6.2. The Reseller shall make payment of the support fee
(inclusive of VAT) within 30 days of the date of Multisoft invoice.
6.3. Intentionally deleted.
6.4. Multisoft shall charge the Reseller a registration fee
for any additional supported customer taken on by the Reseller whose Multisoft
Products were not originally sold by the Reseller.
7. MULTISOFT RIGHTS
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7.1. Without prejudice to any other rights which Multisoft
has expressly or by implication it may:
7.1.1. Withdraw all or any Products without formal
notice to the Reseller.
7.1.2. Include or exclude new computer Products
within the definition of the Products.
7.1.3. Release new versions of the Products without
formal notice to the Reseller.
7.1.4. Withdraw a version of the Products specific
to a particular computer environment or operating system within 30 days notice
in writing to the Reseller.
7.1.5. Alter its price list discount terms after
giving at least 30 days notice in writing.
7.1.6. Appoint additional Resellers.
7.1.7. Limit the number of Products available to the
Reseller.
8. TERMINATION
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8.1. This agreement shall be for an initial period of 5 years
from the Effective Time as defined in the Sale of Business Agreement to which
this document is annexed and thereafter and may be terminated by either party
giving the other 3 months notice in writing.
8.2. This agreement automatically terminates should the
Reseller be unable to pay its debts in normal course of business or have any
debts more than 30 days overdue for payment against the agreed terms of trade.
Multisoft may at its discretion suspend the service until any overdue amounts
are paid in full. Such suspension does not absolve the Reseller from continuing
to pay the support fees as they fall due.
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8.3. Intentionally deleted.
8.4. Multisoft may terminate the agreement forthwith should
the Reseller commit any breach of this agreement which is capable of being
remedied and fails to remedy such breach within 30 days after written notice to
the Reseller by Multisoft specifying the nature of the breach.
8.5. Multisoft may terminate the agreement forthwith should
the Reseller commit a breach of this agreement not capable of being remedied.
8.6. Either party may terminate this agreement should the
other go into receivership liquidation or enter into a composition or
arrangement with its creditors, other than voluntarily for the purposes of
amalgamation or reconstruction.
9. LIMITATION OF LIABILITY
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9.1. The following clause specifies the extent to which
Multisoft will be liable to Reseller for negligence, breach of contract or
otherwise under this agreement. Its principal terms are a financial limit on
Multisoft's liability (except for death or personal injury), the liability of
Multisoft only for certain defined losses and a time limit applicable to both
parties for the enforcement of claims. Multisoft's entire liability and
Reseller's sole remedies, whether in contract, tort or otherwise, shall be as
set out in this clause 9.
9.2. Reseller accepts that it is its responsibility to select
how the Products and Support Services meet its specific requirements and those
of its Customer and that Products cannot be tested in every possible combination
or operating environment. In particular Multisoft expressly does not warrant:
9.2.1. that the Products will operate in all
selected combinations;
9.2.2. that operation of the Products will be
uninterrupted or error free or that all Product errors will be corrected;
9.2.3. that operation of the Products will meet
requirements of Reseller or its Customer.
Multisoft warrants for a period of ninety (90) days, from the date that
Multisoft issues the initial passcode,that the Products, unless modified, will
perform the functions described in the relevant documentation provided by
Multisoft when operated on the Supported Environment. Multisoft will undertake
to correct any reported Malfunction in accordance with its technical support
policies.
9.3. Except as expressly provided in this clause, all
conditions, representations and warranties (express or implied, statutory or
otherwise) are excluded to the extent permitted by law including without
limitation any implied warranties or conditions as to quality or fitness for
purpose.
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9.4. Reseller shall notify Multisoft as soon as practicable
in the event that the media embodying the Products is defective. Multisoft shall
provide Reseller with a replacement Product on new media at no extra charge.
Reseller acknowledges that the foregoing shall be its sole remedy in relation to
defective media embodying the Products. Multisoft's liability in respect of
defective media in accordance with this clause shall cease 30 days after the
date on which the Customer first uses the relevant Product.
9.5. Reseller shall always inform Multisoft of any claim and
afford it a reasonable opportunity of correcting that claim including, without
limitation, the option of replacing the Product or correcting any deficiency in
the same.
9.6. Reseller will notify Multisoft promptly in writing of:
9.6.1. any claim or proceeding involving the
Products that comes to its attention; and
9.6.2. all claimed or suspected defects in the
Products; and
9.6.3. any material change in the management or
control of Reseller.
9.7. Multisoft shall not be liable for any loss, damage,
costs or expense incurred by Reseller:
9.7.1. after the date it corrects the claim;
9.7.2. after the date on which Reseller terminates
this agreement;
9.7.3. to the extent that Multisoft affords Reseller
a reasonable opportunity to mitigate its losses, damage, liabilities or expenses
by providing alternative or additional Products.
9.8. Multisoft will accept:
9.8.1. unlimited liability for fraud or for death or
personal injury caused by its wilful default or negligence.
9.8.2. liability for direct physical damage to
tangible property of Reseller caused by Multisoft's wilful default or
negligence.
9.9. Subject to clause 9.8.1, Multisoft will not be liable
for the following loss or damage however caused and even if foreseeable by
Multisoft save loss or damage from wrongful termination of this agreement:
9.9.1. economic loss, which term shall include but
not restricted to loss of profits, loss of use of profits, loss of business,
loss of revenue, loss of goodwill or loss of anticipated savings;
9.9.2. loss of or damage to Reseller's or a
Customer's or a third party's data;
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9.9.3. special, indirect or consequential loss
(other than direct physical damage to tangible property under clause 9 9 2);
9.9.4. loss arising from any claim made against
Reseller ray a Customer or third party; or
9.9.5. loss or damage arising from Reseller's
failure to fulfil its responsibilities or any matter under the control of
Reseller or a third party;
9.9.6. loss or damage arising from Multisoft acting
in accordance with the instructions of Reseller, its officers, employees, agents
or third parties engaged by Reseller, or
9.9.7. loss or damage arising from any claim made
against Reseller based on any representation made by Reseller, even if Reseller
made that representation after talking to, or on the advice of, Multisoft or
Multisoft's suppliers and Reseller.
9.10. Multisoft's entire liability (save in respect of
wrongful termination of this agreement):
9.10.1. for any claim except as provided in clauses
9.8 and 9.9 shall not exceed the greater of:
9.10.1.1 [British Pound] 50,000; or
9.10.1.2 100% of the amount paid for the
Products and Support Services which are directly
related to the Claim; and
9.10.2. in any event Multisoft's total aggregate
liability under this agreement shall not exceed [British Pound] 250,000.
9.11. Except in respect of payments due under this agreement
and claims under clause 9.8 and 9.9 no action may be brought by either party
against the other more than one year after the date on which the cause of action
accrued.
9.12. Reseller agrees to enforce the terms of its sub-Licences
and inform Multisoft of any known breach of such terms. Reseller shall defend
and indemnify Multisoft against and hold Multisoft harmless from any and all,
claims, losses, damages (reasonable) costs and expenses resulting from or
arising directly or indirectly from disputes, claims or actions by any party
other than Reseller in connection with this agreement and/or in connection with
any Products or services supplied or promoted by Reseller. Without limiting the
foregoing, Reseller will defend and indemnify Multisoft against:
(a) all claims and damages to Multisoft arising from
any use by Reseller or its Customers of any product not
provided by Multisoft but used in combination with the
Products if such claim would have been avoided by the
exclusive use of the Products;
(b) all damages to Multisoft caused by Reseller's
failure to include the required contractual terms set forth in
each sub-licence agreement;
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(c) all damages to Multisoft caused by Customer's
breach of any of the applicable provisions required in a
sub-licence. This indemnity shall survive any termination of
this agreement without limit in time.
9.13. Reseller acknowledges that it is not possible to foresee
and provide in the agreement (in particular by way of adjustments to the price
of the Products or support services) for all contingencies which may give rise
to loss, damage or liability.
9.14. Each of the limitations and exclusions set out in this
clause 9 is to be construed as a separate limitation or exclusion, applying and
surviving even if for any reason one or other of the limitations or exclusions
is held inapplicable or unreasonable in any circumstances, and shall remain in
force despite termination of this contract.
10. GENERAL
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10.1. It is expressly agreed by the Reseller that is is the
Resellers responsibility to ensure that the Products are fit for the purpose for
which they are licenced, Multisoft gives no warranties either expressed or
implied with regard go the Products their quality performance or
merchantability.
10.2. Multisoft does not warrant that the Products will be
error free and in relation to any errors in the Products Multisofts sole
obligation to the Reseller is to replace or correct the Products.
10.3. Multisoft shall not be liable for any consequential
incidental or special damage of any kind (including therein but not by way of
limitation damages for any loss of use of profit by the Reseller or other
similar collateral or consequential damage) which may result from or in
connection with the Products or performance of this agreement by Multisoft.
10.4. Multisoft retains title to the copy of the Products
supplied to the Reseller including title to the magnetic media on which it is
supplied.
10.5. The Resellers appointment does not create a patnership
or joint venture with Multisoft and the Reseller has no right or authority
whatsoever to bind Multisoft in respect of any other agreement obligation or
undertaking and should not represent itself to any third parties as being the
agent of Multisoft.
10.6. The risk of the Products supplied by Multisoft passes to
the Reseller on delivery.
10.7.1. Each provision of this agreement shall be read and
construed independently of the other provisions herein contained so that if one
or more shall be invalid as an unreasonable restraint of trade or for any other
reason whatsoever then the remaining provisions shall be valid to the extent
that they are not so invalid.
10.7.2. While the provisions in this agreement are considered
by the parties to be reasonable in all the circumstances if one or more shall be
invalid as an unreasonable restraint of trade or for any other reason whatsoever
but would be held valid if part of the wording thereof had been deleted or the
period thereof had been changed or the range of activities or area dealt with
thereby reduced in scope the said provisions shall apply with such modification
as may be necessary to make them valid and effective.
12
<PAGE>
10.8. All notices to be given under this agreement may be made
by facsimile transmission or by recorded delivery post to the address stated
herein. In the case of facsimile transmission it shall be sufficient to show the
report produced by the machine showing the number dialled and the correct
transmission. Postal notice shall be deemed to be received 2 days after posting.
10.9. This agreement is subject to the laws of England and the
Reseller irrevocably submits to the non-exclusive jurisdiction of the English
Courts.
SIGNED FOR AND ON BEHALF OF
IBIS SERVICE LIMITED
NAME: F.A. BOURGEOIS /s/F.A. BOURGEOIS
TITLE: DIRECTOR
DATE: 17/6/1993
SIGNED FOR AND ON BEHALF OF
MULTISOFT FINANCIAL SYSTEMS LIMITED
NAME: A.L. NICHOLLS /s/A.L. NICHOLLS
TITLE: MANAGING DIRECTOR
DATE: 26/6/1993
MAY 1, 1993
13
<PAGE>
DATED March 9, 1998
MULTISOFT FINANCIAL SYSTEM LIMITED
and
THE SAGE GROUP PLC
and
IBIS SYSTEMS LIMITED
AMENDMENT AGREEMENT
<PAGE>
THIS AGREEMENT is made on March 9, 1998.
BETWEEN:
1. MULTISOFT FINANCIAL SYSTEMS LIMITED (registered number 2488578)
whose registered office is at Cross & Pillory House, Cross & Pillory Lane,
Alton, Hants GU34 1HL (the "Seller");
2. THE SAGE GROUP PLC (registered number 2231246) whose registered
office is at Sage House, Benton Park Road, Newcastle-upon-Tyne NE7 7LZ (the
"Guarantor"); and
3. IBIS SYSTEMS LIMITED (registered number 3410598) whose registered
office is at 2 Twyford Place, Lincoln's Inn, Cressex, High Wycombe,
Buckinghamshire HP12 3RE (the "Purchaser").
WHEREAS:
The Seller, the Guarantor and the Purchaser have today entered into an agreement
(the "Agreement") for the sale of the Business (as defined in the Agreement) and
have agreed to make certain amendments to the terms of the Agreement.
IT IS AGREED as follows:
1. All words and expressions defined in this Agreement shall have the
same meaning in this agreement unless the context otherwise requires.
2. In consideration of the payment of (pound)1 [British pound] the
Purchaser to the Seller, receipt of which is acknowledged by execution of this
agreement, the parties agree that the Agreement shall be amended as follows:
2.1. the definition of "Contracts" in the Agreement shall be
deleted and the following definition shall be substituted:
""Contracts" means all contracts and engagements entered into
or orders made before the Effective Time by or on behalf of
the Seller with customers in connection with the Business
relating to software support (but not sale or supply) and to
bespoke modifications (other than as provided under clause
2(5)) which remain (in whole or in part) to be performed at or
after the Effective Time;"
2.2. the word "Completion" in the definition of "Debts" shall
be deleted and substituted by the words "the Effective Time."
2.3. the words "an irrevocable royalty-free" shall be added
after the word "Purchaser" in clause 2(4) of the Agreement.
2.4. additional sub-clauses (9) and (10) to be added to clause
5 of the Agreement in the following terms:
2
<PAGE>
"5(9) Save for such liabilities as the Purchaser agrees
expressly to assume under this agreement, the
Purchaser shall not assume any liability of or
relating to the Business in existence at the
Effective Time and the Seller agrees to indemnify the
Purchaser in respect to any such liability.
5(10) The Purchaser agrees to indemnify the Seller in
respect of any liability of or relating to the
Business which the Purchaser assumes under this
Agreement or which arises after the Effective Time."
2.5. an additional sentence to be added to clause 7(2) as
follows:
"For the avoidance of doubt the Purchaser shall not be
precluded from providing services to customers and selling
software supplied by parties other than the Seller's Group."
2.6. an additional sub-clause (9) be added to clause 7 of the
Agreement in the following terms:
"7(9) The Seller undertakes that, so far as it is aware
(other than John Jackman, a former employee of the
Seller), it has not, and undertakes that it will not
in the future, disclose to any third party the list
or any part thereof) of Direct Customers and that it
will keep confidential such information as the Seller
maintains concerning the Direct Customers (save as
required by law or regulation or for the purposes of
any form of audit or disclosure to any authority)."
2.7. an additional sub-clause (10) be added to clause 7 of the
Agreement in the following terms:
"The RRP used to calculate the amount payable by the Purchaser
to the Seller in respect of the Computer Software and Products
under this Agreement shall not include any amount payable in
respect to NRG report writing software and, for the avoidance
of doubt, sub-clause 7(3) shall not apply to the NRG report
writing software."
2.8. an additional paragraph 7.2 be added to section 7 of
Schedule 5 to the Agreement:
"7.2 Litigation
The Seller is not engaged in any litigation or
arbitration proceedings as plaintiff or defendant and
no such proceedings have been threatened in the past
12 months in writing against Seller, in each case,
relating to the Business and which would be material
in the context of the Business taken as a whole."
3
<PAGE>
3. the provisions of clauses 18 and 19 of the Agreement shall be deemed
to apply MUTATIS MUTANDIS to this agreement as if set out in full in this
agreement.
(4.) This agreement shall be construed in accordance with English law.
The parties submit to the jurisdiction of the English courts for all purposes
relating to this agreement.
AS WITNESS the hands of the duly authorized representatives of the parties on
the date which first appears on page one.
SIGNED BY )
for and on behalf of )
MULTISOFT FINANCIAL ) /s/ Unreadable
SYSTEMS LIMITED )
in the presence of: )
SIGNED BY )
for and on behalf of )
IBIS SYSTEMS LIMITED ) /s/ Peter B. Nagle
in the presence of: )
SIGNED BY )
for and on behalf of ) /s/ Unreadable
THE SAGE GROUP PLC )
in the presence of: )
4
<PAGE>
DATED 9TH MARCH, 1998
MULTISOFT FINANCIAL SYSTEMS LIMITED
and
IBIS SYSTEMS LIMITED
--------------------------------------------
LICENCE TO OCCUPY
premises at Cross & Pillory House,
Cross & Pillory Lane, Alton, Hants, GU34 1HL
--------------------------------------------
ALLEN & OVERY
London
PY2:475617.2
<PAGE>
THIS AGREEMENT is made on 9th March, 1998
BETWEEN:
(1) MULTISOFT FINANCIAL SYSTEMS LIMITED (registered number 2488578) whose
registered office is at Cross & Pillory House, Cross & Pillory Lane,
Alton, Hants, GU34 1HL (the "LICENSOR"); and
(2) IBIS SYSTEMS LIMITED (registered number 3410598) whose registered
office is at 2 Twyford Place, Lincoln's Inn, Cressex, High Wycombe,
Buckinghamshire, HP12 3RE (the "LICENSEE").
IT IS AGREED as follows:
1. INTERPRETATION
(1) In this agreement:
"ACCESS WAYS" means the roads, paths, entrances, halls and corridors of
the Property the use of which is necessary for getting to and from the
designated Space;
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are generally open in London for normal business;
"EFFECTS" means office equipment and chattels;
"LICENCE FEE" means for the period from and including the date of this
agreement until expiry of the Licence Period a fee of (pound)1.;
"LICENCE PERIOD" means the period from the date of this agreement until
the date on which the Licensee's rights under clause 2 are determined
in accordance with clause 4(1);
"PROPERTY" means the freehold premises currently occupied by the
Licensor at Cross & Pillory House, Cross & Pillory Lane, Alton, Hants,
GU34 1HL;
"SALE OF BUSINESS AGREEMENT" means the agreement for the sale and
purchase of part of the business of the Licensor made the same date as
this Agreement and made between the Licensor and the Licensee;
"SPACE" means the area used by the Licensor within the Property for the
Business immediately prior to the Effective Time or a space of similar
size within the Property notified to the Licensee, in the Licensor's
absolute discretion;
"VAT" means value added tax or any tax replacing it.
<PAGE>
2
(2) In this agreement:
(a) references to a person include a body corporate and an
unincorporated association of persons;
(b) references to a natural person include his estate and personal
representatives;
(c) references to "LOSSES" means and includes all losses, claims,
demands, actions, proceedings, damages, costs or expenses or
other liability; and
(d) any prohibition against doing anything includes a prohibition
against permitting or suffering that thing to happen.
(3) The headings in this agreement do not affect its interpretation.
(4) Except to the extent defined in this Agreement, the definitions used in
the Sale of Business Agreement shall apply to this Agreement.
2. LICENCE
The Licensor gives the Licensee the right (in common with the Licensor
and all others authorised by the Licensor) to use for the Licence
Period:
(1) the Space only for the purpose of continuing to run the
business sold pursuant to the Sale of Business Agreement;
(2) the Access Ways for the purpose of getting to and from and
around the Space;
(3) electricity, gas, water, heating, lighting, toilets,
telephones and other telecommunication services used at the
Property by the Business immediately prior to the Effective
Time;
(4) security and access codes and other services permitting free
entry to and exit from the Property and car parking spaces at
the Property in such number as have been used for Employees of
and visitors to the Business immediately prior to the
Effective Time.
3. LICENSEE'S OBLIGATIONS
The Licensee agrees:
(1) to pay the Licensor the Licence Fee;
(2) not to bring any Effects onto the Property without the consent
of the Licensor (not to be unreasonably withheld);
(3) not to damage the Space or the Access Ways or any of the
Licensor's Effects in or on them and to repair any damage
caused and replace any Licensor's Effects which are damaged
beyond repair immediately;
<PAGE>
3
(4) to vacate the Space on termination of this licence and to keep
and leave at the end of the Licence Period the Space clean and
tidy and clear of rubbish;
(5) subject to clause 4, to remove all the Licensee's Effects (if
any) and any Computer Equipment and Transferred Equipment sold
to the Licensee pursuant to the Sale of Business Agreement
from the Space, before the end of the Licence Period, and to
make good immediately any damage caused to the Property in
doing so;
(6) not to obstruct the Access Ways or leave any rubbish on them;
(7) not to cause any damage or disturbance to the Licensor or the
owners, occupiers or users of the Property or any adjoining or
neighbouring property;
(8) not to do anything which would or might be a breach of any
statutory requirement affecting the Property or which would or
might vitiate in whole or in part any insurance effected in
respect of the Property from time to time;
(9) to pay the Licensor, on demand, the cost of any additional
rates and taxes charged on the Property or on the owner or
occupier of it, as a result of the Licensor granting this
licence to the Licensee beyond those rates and taxes which
would have been payable in any event had the Licensor occupied
the Property for the purpose of its business;
(10) to indemnify the Licensor and keep the Licensor indemnified
against all losses arising in any way from this licence, any
breach of any of the Licensee's undertakings contained in this
clause or the exercise or purported exercise of any of the
rights given in clause 2;
(11) to observe any reasonable rules and regulations made by the
Licensor and notified to the Licensee from time to time
governing the Licensee's use of the Space or the Access Ways;
(12) not to impede the Licensor or its employees or agents in the
exercise of the Licensor's rights of possession and control of
the Property;
(13) to pay or reimburse the Licensor, on demand, for the cost of
all telephone charges and calls incurred by the Licensor
during the Licence Period.
4. GENERAL
(1) The rights granted in clause 2 will determine (without prejudice to the
Licensor's rights in respect of any breach of the obligations contained
in clause 3) on the earliest of :
(a) the expiry of two weeks' written notice given by the Licensee
to the Licensor; or
(b) on the date three months after the date of completion of this
licence.
(2) The benefit of this licence is personal to the Licensee and not
assignable. The rights given in clause 2 may only be exercised by the
Licensee and its employees.
<PAGE>
4
(3) This licence does not grant exclusive possession of the whole or any
part of the Property, nor does it create any landlord and tenant
relationship.
(4) The Licensor gives no warranty that the Property is legally or
physically fit for the purposes specified in clause 2.
(5) The Licensor is not liable for the death of or injury to the Licensee
or its employees on the Property or using the Access Ways or for damage
to any property of theirs or for any losses, claims, demands, actions,
proceedings, damages, costs or expenses incurred by the Licensee or its
employees in the exercise or purported exercise of the rights granted
by clause 2.
(6) Any obligation to pay money refers to a sum exclusive of VAT and any
VAT charged on it is payable in addition.
(7) This licence may be executed in any number of counterparts, all of
which, taken together, shall constitute one and the same licence and
any party may enter into this licence by executing a counterpart.
5. NOTICES
(1) Any notice or other document to be served under this agreement may be
delivered or sent by prepaid first class post or telex or facsimile
process to the party to be served as follows:
(a) to Licensor at:
The Sage Group plc
Sage House
Benton Park Road
Newcastle-upon-Tyne
NE7 7LZ
Fax No. 0191 255 0306
marked for the attention of Steve Nelson and Rupert Wyndham;
(b) to the Licensee at:
[Ibis Systems Limited
2 Twyford Place
Lincoln's Inn
Cressex
High Wycombe
Buckingham HP12 3RE]
Fax No. 01494 443333
marked for the attention of [Peter Nagle]
<PAGE>
5
or at such other address as it may have notified to the other parties
in accordance with this clause.
(2) Any notice or document shall be deemed to have been served:
(a) if delivered, at the time of delivery; or
(b) if posted, at 10.00 am (local time at the place of
destination) on the second Business Day after it was put into
the post; or
(c) if sent by facsimile process, at the expiration of 2 hours
after the time of despatch, if despatched before 3.00 p.m.
(local time at the place of destination) on any Business Day,
and in any other case at 10.00 a.m. (local time at the place
of destination) on the next Business Day after the date of
despatch.
(3) In proving service of a notice or document it shall be sufficient to
prove that delivery was made or that the envelope containing the notice
or document was properly addressed and posted as a prepaid first class
letter or that the facsimile message was properly addressed and
despatched as the case may be.
IN WITNESS of which the parties have signed this Licence on the date inserted at
the top of page 1.
SIGNED by )
duly ) /s/ Unreadable
authorised on behalf of the )
Licensor )
SIGNED by )
duly ) /s/ Peter Nagle
authorised on behalf of the )
Licensee )
