<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM 10-Q
(MARK ONE)
/X/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE
ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1997
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD TO
COMMISSION FILE NUMBER: 0-21010
---------------------
CENTURA SOFTWARE CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
CALIFORNIA 94-2874178
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1060 MARSH ROAD, MENLO PARK, 94025
CALIFORNIA
(Address of principal executive (Zip Code)
offices)
</TABLE>
Registrant's telephone number, including area code: (415) 321-9500
Securities registered pursuant to Section 12(b) of the Act:
NONE
Securities registered pursuant to section 12(g) of the Act:
COMMON STOCK, $.01 PAR VALUE PER SHARE
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes _X_ No ____
As of April 30, 1997, there were 15,293,066 shares of the Registrant's
Common Stock outstanding.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
CENTURA SOFTWARE CORPORATION
FORM 10-Q for the Quarter Ended March 31, 1997
INDEX
<TABLE>
<CAPTION>
PAGE NUMBER
-----------
<S> <C> <C>
PART I FINANCIAL INFORMATION
Item 1. Financial Statements and Supplementary Data
a) Condensed consolidated balance sheets at March 31, 1997 and December 31, 1996............ 1
b) Condensed consolidated statements of operations for the three months ended March 31, 1997
and 1996................................................................................. 2
c) Condensed consolidated statements of cash flows for the three months ended March 31, 1997
and 1996................................................................................. 3
d) Notes to condensed consolidated financial statements..................................... 4-5
Item 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations.......................................................................... 6-15
PART II OTHER INFORMATION
Item 1. Legal Proceedings................................................................... 16
Item 2. Changes in Securities............................................................... 16
Item 3. Defaults in Senior Securities....................................................... 16
Item 4. Submission of Matters to a Vote of Security Holders................................. 16
Item 5. Other Information................................................................... 16
Item 6. Exhibits and Reports on Form 8-K.................................................... 16
</TABLE>
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
CENTURA SOFTWARE CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
MARCH 31, DECEMBER
1997 31, 1996
----------- -----------
(UNAUDITED)
<S> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents.......................................... $ 4,263 $ 6,669
Short-term investments............................................. 1,565 2,065
Accounts receivable, less allowances of $2,780 and $2,826.......... 9,524 13,574
Inventories........................................................ 81 216
Other current assets............................................... 3,408 3,300
----------- -----------
Total current assets............................................. 18,841 25,824
Property and equipment, at cost, net of accumulated depreciation..... 3,374 3,622
Capitalized software, at cost, net of accumulated amortization....... 4,098 4,226
Long-term investments................................................ 1,070 1,221
Other assets......................................................... 1,748 1,812
----------- -----------
Total assets..................................................... $ 29,131 $ 36,705
----------- -----------
----------- -----------
LIABILITIES AND SHAREHOLDERS' DEFICIT
Current Liabilities:
Current portion of long-term debt.................................. $ 279 $ 336
Accounts payable................................................... 4,269 5,683
Accrued compensation and related expenses.......................... 3,895 2,484
Other accrued liabilities.......................................... 1,349 4,313
Accrued litigation expenses........................................ 209 6,733
Deferred revenue................................................... 19,061 21,891
----------- -----------
Total current liabilities........................................ 29,062 41,440
Long-term debt, less current portion................................. 10,000 10,032
Other long-term liabilities.......................................... 2,348 2,156
----------- -----------
Total liabilities................................................ 41,410 53,628
----------- -----------
Shareholders' Deficit:
Preferred stock, no par value; 2,000 shares authorized; none
issued........................................................... -- --
Common stock, par value $.01 per share; 60,000 shares authorized;
15,238 shares and 13,728 shares issued and outstanding........... 69,671 63,047
Cumulative translation adjustment.................................. (428) (513)
Accumulated deficit................................................ (81,522) (79,457)
----------- -----------
Total shareholders' deficit...................................... (12,279) (16,923)
----------- -----------
Total liabilities and shareholders' deficit...................... $ 29,131 $ 36,705
----------- -----------
----------- -----------
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE CONDENSED CONSOLIDATED
FINANCIAL STATEMENTS.
1
<PAGE>
CENTURA SOFTWARE CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
--------------------
1997 1996
--------- ---------
<S> <C> <C>
Net revenues:
Product................................................................................... $ 9,514 $ 10,931
Service................................................................................... 4,086 4,462
--------- ---------
Net revenues............................................................................ 13,600 15,393
--------- ---------
Cost of revenues:
Product................................................................................... 1,366 1,246
Service................................................................................... 2,119 2,195
--------- ---------
Cost of revenues........................................................................ 3,485 3,441
--------- ---------
Gross profit.......................................................................... 10,115 11,952
--------- ---------
Operating expenses:
Sales and marketing....................................................................... 6,623 6,753
Research and development.................................................................. 2,703 2,901
General and administrative................................................................ 1,693 1,641
Acquisition expense....................................................................... 261 --
--------- ---------
Total operating expenses................................................................ 11,280 11,295
--------- ---------
Operating income (loss)............................................................... (1,165) 657
Other income (expense):
Interest income........................................................................... 55 194
Interest expense.......................................................................... (214) (187)
Foreign currency loss..................................................................... (731) (181)
--------- ---------
Income (loss) before income taxes........................................................... (2,055) 483
Provision for income taxes.................................................................. 10 162
--------- ---------
Net income (loss)........................................................................... $ (2,065) $ 321
--------- ---------
--------- ---------
Net income (loss) per share................................................................. $ (.14) $ .03
--------- ---------
--------- ---------
Weighted average common shares and equivalents.............................................. 15,224 12,665
--------- ---------
--------- ---------
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE CONDENSED CONSOLIDATED
FINANCIAL STATEMENTS.
2
<PAGE>
CENTURA SOFTWARE CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
--------------------
1997 1996
--------- ---------
<S> <C> <C>
Cash flows from operating activities:
Net income (loss).......................................................................... $ (2,065) $ 321
Adjustments to reconcile net loss to net cash provided by (used in) operating activities:
Depreciation and amortization............................................................ 1,383 1,191
Provision for doubtful accounts.......................................................... 12 10
Provision for sales returns and allowances............................................... 94 474
Changes in assets and liabilities:
Accounts receivable.................................................................... 3,944 799
Inventories............................................................................ 135 114
Other current assets................................................................... (108) (1,216)
Other assets........................................................................... 2 14
Accounts payable and accrued liabilities............................................... (2,967) (3,489)
Deferred revenue....................................................................... (2,830) (656)
Accrued litigation expense............................................................. 9 --
Other long-term liabilities............................................................ 192 123
--------- ---------
Net cash used in operating activities................................................ (2,199) (2,315)
--------- ---------
Cash flows from investing activities:
Maturities of investments.................................................................. 652 4,046
Purchases of investments................................................................... (1) (180)
Proceeds from sale of property and equipment............................................... 69 52
Acquisitions of property and equipment..................................................... (511) (429)
Capitalization of software costs........................................................... (466) (827)
Capitalization of other intangibles........................................................ (37) (15)
--------- ---------
Net cash provided by (used in) investing activities.................................. (294) 2,647
--------- ---------
Cash flows from financing activities:
Repayment of note payable.................................................................. (89) (81)
Repayment of capital lease obligations..................................................... -- (12)
Proceeds from issuance of common stock, net................................................ 91 204
--------- ---------
Net cash provided by financing activities............................................ 2 111
--------- ---------
Effect of exchange rate changes on cash and cash equivalents................................. 85 18
--------- ---------
Net increase (decrease) in cash and cash equivalents......................................... (2,406) 461
Cash and cash equivalents at beginning of period............................................. 6,669 9,865
--------- ---------
Cash and cash equivalents at end of period................................................... $ 4,263 $ 10,326
--------- ---------
--------- ---------
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE CONDENSED CONSOLIDATED
FINANCIAL STATEMENTS.
3
<PAGE>
CENTURA SOFTWARE CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
METHOD OF PREPARATION. The condensed consolidated balance sheet as of March
31, 1997 and the condensed consolidated statements of operations and cash flows
for the three months ended March 31, 1997 and 1996 have been prepared by Centura
Software Corporation (the "Company") without audit. In the opinion of
management, all adjustments necessary for a fair statement of the financial
position, results of operations, and cash flows have been made for all periods
presented. The financial data should be reviewed in conjunction with the audited
financial statements and notes thereto included in the Company's Annual Report
on Form 10-K for the year ended December 31, 1996. The results of operations for
the three month period ended March 31, 1997, are not necessarily indicative of
the operating results to be expected for the full year.
The December 31, 1996 balance sheet was derived from audited financial
statements, but does not include all disclosures required by generally accepted
accounting principles.
COMPUTATION OF NET INCOME (LOSS) PER SHARE. Net income (loss) per share is
computed using the weighted average number of common and common equivalent
shares outstanding. Common stock equivalents (using the modified treasury stock
method) have been included in the computation when dilutive. Convertible
debentures, which are not common stock equivalents, are excluded in a fully
diluted calculation of earnings (loss) per share because their effect is
antidilutive.
RECENT ACCOUNTING PRONOUNCEMENT. Effective for both interim and annual
financial statements for the periods ending after December 15, 1997, the Company
will adopt Statement of Financial Accounting Standards No. 128 ("SFAS 128"),
"Earnings Per Share", which replaces primary and fully diluted earnings per
share computed in accordance with Accounting Principles Board Opinion No. 15
with a calculation called Basic Earnings Per Share and Diluted Earnings Per
Share. Basic Earnings Per Share will be calculated by dividing income available
to common shareholders by weighted average common shares outstanding. Diluted
Earnings Per Share is calculated by dividing income available to common
shareholders by the assumed conversion of all potentially dilutive securities
under the treasury stock method. Early adoption is prohibited. The adoption of
SFAS 128 would not have had a material impact on the Company's earnings per
share for the three months ended March 31, 1997.
RECLASSIFICATIONS. In order to conform to the condensed consolidated
statement of cash flows for the three months ended March 31, 1997, certain
reclassifications have been made to the condensed consolidated statement of cash
flows for the three months ended March 31, 1996.
2. LITIGATION
On May 2, 1994, a lawsuit was filed against the Company and certain of its
officers and directors, by a holder of the Company's common stock, on his own
behalf and purportedly on behalf of a class of others similarly situated. The
lawsuit was subsequently amended, and alleged that the Company made false and
misleading statements and failed to disclose material information relating to
existing business conditions and the Company's prospects and that officers and
directors violated the insider trading laws. The plaintiff was seeking damages
of an unstated amount.
The Company reached a binding settlement agreement with plaintiffs' counsel
in this lawsuit, and gained court approval on September 30, 1996. Under the
terms of the agreement, the Company would provide $3 million and 1,875,000
shares to a fund to be distributed among the members of the plaintiff
4
<PAGE>
CENTURA SOFTWARE CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
2. LITIGATION (CONTINUED)
class. The Company also agreed to supplement this payment with up to 625,000
additional shares in the event the value of its common stock was less than an
average price of $6.00 per share during certain twenty day trading periods
specified by the Court. The Company's directors and officers' liability insurer
paid approximately $2 million of the cash contribution to the settlement fund.
The Company paid the remaining cash settlement during 1996. The 1995 financial
statements include $15.3 million in litigation expense for the agreement and
associated legal expenses. As of March 31, 1997, the Company has distributed all
common stock shares as required by the settlement agreement.
As of March 31, 1997, to the best of the Company's knowledge there were no
other pending actions, potential actions, claims or proceedings against the
Company that were likely to result in potential damages that would have a
material adverse impact on the Company's financial statements. As noted in the
"Risk Factors" in Item 2, the Company exists in a volatile legal and regulatory
environment and it is not possible to anticipate or estimate the potential
adverse impact of unknown claims or liabilities against the Company, its
officers and directors, and as such no estimate is made in the Company's
financial statements for such unknown claims or liabilities.
3. TERMINATION OF MERGER AGREEMENT WITH INFOSPINNER INC.
On January 6, 1997, the Company entered into a definitive agreement (the
"Agreement") to acquire InfoSpinner, Inc. ("InfoSpinner") of Richardson, Texas.
The completion of the transaction was subject to the approval of both companies'
shareholders as well as other legal requirements. Additionally, under the terms
of the Agreement, either party had the right to terminate the transaction if the
merger had not been consummated by April 30, 1997. As of April 30, 1997, the
Company did not obtain the majority vote of the shareholders required for the
approval of the proposed merger, and as a result, the board of directors of
InfoSpinner elected to exercise its right to terminate the transaction.
In addition to the Agreement, the companies also entered into a
distributorship agreement (the "Distributorship Agreement") on January 6, 1997,
which grants the Company the right to distribute InfoSpinner's Foresite Web
Integration Server on a worldwide basis. The Distributorship Agreement remains
in full force and effect.
5
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
This Quarterly Report on Form 10-Q contains certain forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933 and
Section 21E of the Securities Exchange Act of 1934. Actual results could differ
materially from those projected in the forward-looking statements as a result of
certain of the risk factors set forth below and elsewhere in this Quarterly
Report on Form 10-Q. In evaluating the Company's business, prospective investors
should carefully consider the following factors in addition to the other
information presented in this report.
The following discussion should be read in conjunction with the unaudited
condensed consolidated financial statements and notes thereto included in Part
I-Item 1 of this Quarterly Report, and the audited consolidated financial
statements and notes thereto, and Management's Discussion and Analysis of
Financial Condition and Results of Operations included in the Company's Annual
Report on Form 10-K for the year ended December 31, 1996.
RESULTS OF OPERATIONS:
NET PRODUCT REVENUES. Net product revenues decreased 13% to $9.5 million
for the quarter ended March 31, 1997, from $10.9 million for the quarter ended
March 31, 1996. The decrease in net product revenues is primarily attributable
to decreased sales of SQLWINDOWS products, resulting from the introduction of
the CENTURA product line during May 1996, and decreased sales of SQLBASE
products partially offset by new revenues generated by sales of the Company's
CENTURA product and FORESITE the Internet integration products sold by the
Company pursuant to the Distributorship Agreement with InfoSpinner, Inc. Channel
sales provided 50% and 47% of net product revenues, and corporate sales provided
50% and 53% of net product revenues for the quarters ended March 31, 1997 and
1996, respectively. International sales accounted for $6.1 million or 63% and
$7.4 million or 67% of net product revenues for the quarters ended March 31,
1997 and 1996, respectively. The decrease in international sales of $1.3 is
primarily due to decreased sales in the Asia Pacific and Latin America areas,
caused in large part by distributor problems in Japan and Brazil which the
Company is currently addressing.
NET SERVICE REVENUES. Net service revenues decreased 8% to $4.1 million for
the quarter ended March 31, 1997, from $4.5 million for the quarter ended March
31, 1996, primarily due to the reduction in professional services and customer
training, which was handled by channel partners. International sales accounted
for 38% and 39% of total net service revenues for the quarters ended March 31,
1997 and 1996, respectively.
COST OF PRODUCT REVENUES. Cost of product revenues includes the cost of
subcontracted production and the amortization of capitalized software. Cost of
product revenues increased 10% to $1.4 million for the quarter ended March 31,
1997, from $1.2 million for the quarter ended March 31, 1996, primarily due to
the increased amortization of capitalized software related to the CENTURA
product line for the quarter ended March 31, 1997. Cost of product revenue as a
percentage of product revenues was 14% and 11% for the quarters ended March 31,
1997 and 1996.
In accordance with Statement of Financial Accounting Standards No. 86,
"Accounting for the Costs of Computer Software to be Sold, Leased or Otherwise
Marketed", the Company capitalizes internal development costs on a project when
the technological feasibility of such project has been determined. The Company
ceases capitalizing such expenses when the products derived from the project are
released for sale. The capitalized costs are then amortized ratably over the
useful life of the products, generally estimated to be two to three years.
Amortization of capitalized software costs, which include the software purchased
from third parties, increased to $594,000 for the three months ended March 31,
1997 from $316,000 for the three months ended March 31, 1996.
COST OF SERVICE REVENUES. Cost of service revenues consists primarily of
personnel costs related to maintenance, training and technical support. Cost of
service revenues remained constant at $2.1 million
6
<PAGE>
and $2.2 million for the quarters ended March 31, 1997 and 1996, respectively.
Cost of service revenues as a percentage of net service revenues was 52% and 49%
for the quarters ended March 31, 1997 and 1996, respectively. The increase in
percentage is a result of decreased net service revenue.
SALES AND MARKETING EXPENSES. For the quarter ended March 31, 1997, the
Company spent $6.6 million, or 49% of net revenues, in sales and marketing
activities, compared to $6.8 million, or 44% of net revenues, for the quarter
ended March 31, 1996. The reduction in sales and marketing expense reflects the
Company's commitment to control spending, while continuing its worldwide
marketing efforts.
RESEARCH AND DEVELOPMENT EXPENSES. The table below sets forth gross
research and development expenses, capitalized software development costs, and
net research and development expenses in dollar amounts and as a percentage of
net revenues for the periods indicated:
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
--------------------
1997 1996
--------- ---------
(IN THOUSANDS)
<S> <C> <C>
Gross research and development expenses............................... $ 3,019 $ 3,728
Capitalized internal software development costs....................... (316) (827)
--------- ---------
Net research and development expenses................................. $ 2,703 $ 2,901
--------- ---------
--------- ---------
As a Percentage of Net Revenues:
Gross research and development expenses............................. 22% 24%
Net research and development expenses............................... 20% 19%
</TABLE>
The decrease in gross research and development expenses, and capitalized
internal software development costs reflects the fact that the Company
accelerated development to have the CENTURA product line ready for sale during
the second quarter of 1996. Gross research and development costs have decreased
correspondingly since the initial release date of the CENTURA product.
GENERAL AND ADMINISTRATIVE EXPENSES. General and administrative expenses
remained relatively constant at $1.7 million for the first quarter of 1997 and
$1.6 million for the first quarter of 1996.
OTHER INCOME (EXPENSE), NET. Other income (expense), net is comprised of
interest income, interest expense, and gains or losses on foreign currency
transactions. For the quarter ended March 31, 1997 other income (expense), net
was $(0.9) million, compared to $(0.2) million for the quarter ended March 31,
1996. The net increase in expense is primarily attributable to a reduction in
interest income resulting from decreased cash, cash equivalents and investments
of $11.5 million between March 31, 1997 and 1996, and increased foreign currency
loss resulting primarily from the strengthening of the United States Dollar
against the British Pound and German Mark between December 31, 1996 and March
31, 1997.
PROVISION FOR INCOME TAXES. The provision for income taxes was
insignificant for the first quarter of 1997 and $0.2 million in the first
quarter of 1996. The provision primarily relates to foreign withholding taxes.
Due to the Company's existing net operating loss position with regard to prior
years, no tax provision was made for income in this quarter.
LIQUIDITY AND CAPITAL RESOURCES:
At March 31, 1997, the Company had a deficit working capital position of
$10.2 million due principally to deferred revenues of $19.1 million. Net cash
used in operating activities for the quarter ended March 31, 1997 was $2.2
million, which resulted primarily from the net loss, decrease in accounts
payable and accrued liabilities, and decrease in deferred revenues offset by the
decrease in accounts receivable, and depreciation and amortization expense for
the quarter. Cash used in investing activities totaled $0.3 million, which
7
<PAGE>
related primarily to the capitalization of software development costs of $0.5
million and the purchases of property and equipment of $0.5 million offset by
the maturities of short-term investments of $0.7 million.
During March 1995, the Company entered into an unsecured floating rate
convertible subordinated note and related agreement with Computer Associates
International, Inc. (the "CA Agreement") for $10.0 million. The note matures in
1998 and is convertible into common stock at the Company's option on the
maturity date for a number of shares based on the market price of the Company's
common stock at the time of conversion. Interest on the note is the one-month
LIBOR plus 1.25% and is payable quarterly. At the Company's option interest
payments may be deferred until the principal is due. Material covenants of the
Company under the CA Agreement include the Company's agreement to: pay and
discharge its material obligations and liabilities, including tax obligations;
continue to engage in business of the same general type currently conducted;
refrain from declaring any dividend or from repurchasing or redeeming its common
stock or indebtedness; refrain from consolidating or merging (except where the
Company is the surviving corporation and incurs no event of default under such
note); refrain from incurring senior or pari passu indebtedness or from creating
or incurring encumbrances or liens, other than certain permitted liens on its
properties. The agreement also requires the Company to maintain a minimum market
capitalization of $40.0 million commencing on (and including) November 1, 1997,
and continuing through the duration of the note (the "Minimum Market
Capitalization Requirement"). If the Company does not meet the Minimum Market
Capitalization Requirement, the Company will lose the option to convert the note
into common stock, and all outstanding principal and interest will be due and
payable on the conversion date, May 1, 1998.
Additional financing may be required to meet NASDAQ minimum net worth
requirements, fund continuing operations, as well as, to pay the unsecured
floating rate convertible subordinated note and related outstanding interest
with CA. The Company believes that expected cash flows from operations and
existing cash balances, may not meet the Company's currently anticipated working
capital and capital expenditure requirements for the next 12 months. The Company
is exploring several options to raise cash for operational or other needs. There
can be no assurance that financing will be available on reasonable terms or at
all. Any additional equity financing will result in dilution to the Company's
shareholders.
The Company's capital requirements also may be affected by acquisitions of
businesses, products and technologies that are complementary to the Company's
business, which the Company considers from time to time. The Company regularly
evaluates such opportunities. Any such transaction, if consummated, may further
reduce the Company's working capital or require the issuance of equity.
FACTORS THAT MAY AFFECT FUTURE RESULTS
RECENT COMPANY LOSSES; FLUCTUATIONS IN QUARTERLY RESULTS. The Company has
experienced in the past and expects in the future to continue to experience
significant fluctuations in quarterly operating results. There can be no
assurance that the restructuring of the Company's business strategies and
tactics, commenced in early 1996, will be successful or that the Company will be
able to achieve or sustain any such profitability on a quarterly or annual
basis. The Company's product licensing arrangements are subject to sell-through
revenue recognition which makes estimation of revenue dependent on reporting by
the Company's resellers and distributors and extremely uncertain. In addition,
quarterly operating results of the Company will depend on a number of other
factors that are difficult to forecast, including, general market demand for the
Company's products; the size and timing of individual orders during a quarter;
the Company's ability to fulfill such orders; introduction, localization or
enhancement of products by the Company; delays in the introduction and/or
enhancement of products by the Company and its competitors; market acceptance of
new products; reviews in the industry press concerning the products of the
Company or its competitors; software "bugs" or other product quality problems;
competition and pricing in the software industry; sales mix among distribution
channels; customer order deferrals in anticipation of new products; reduction in
demand for existing products and shortening of product life cycles as a result
of new product introductions; changes in operating expenses; changes in the
Company's strategy; personnel
8
<PAGE>
changes; foreign currency exchange rates; mix of products sold; inventory
obsolescence; product returns and rotations; and general economic conditions.
Sales of the Company's products also may be negatively affected by delays in the
introduction or availability of new hardware and software products from third
parties. The Company's financial results also may vary as a result of seasonal
factors including year and quarter end purchasing and the timing of marketing
activities, such as industry conventions and tradeshows.
Although the Company has operated historically with little or no backlog of
traditional boxed product shipments, it has experienced a seasonal pattern of
product revenue decline between the fourth quarter and the succeeding first
quarter, contributing to lower worldwide product revenues and operating results
during such quarters. It has generally realized lower European product revenues
in the third quarter as compared to the rest of the year. The Company has also
experienced a pattern of recording a substantial portion of its revenues in the
third month of a quarter. As a result, product revenues in any quarter are
dependent on orders booked in the last month. Because the Company's staffing and
other operating expenses are based in part on anticipated net revenues, a
substantial portion of which may not be generated until the end of each quarter,
delays in the receipt or shipment of orders, including delays that may be
occasioned by failures of third party product fulfillment firms to produce and
ship products, or the actual loss of product orders can cause significant
variations in operating results from quarter to quarter. The Company may be
unable to adjust spending in a timely manner to compensate for any unexpected
revenue shortfall. Accordingly, any significant shortfall in sales of the
Company's products in relation to the Company's expectations could have an
immediate adverse impact on the Company's business, operating results and
financial condition. To the extent that the Company's expenses precede or are
not subsequently followed by increased revenues, its business, operating results
and financial condition could be materially and adversely affected. In addition,
the Company currently intends to increase its operating expenses to primarily
fund increases in its sales and marketing operations and expand distribution
channels. To the extent that such expenses precede or are not subsequently
followed by increased net revenues, the Company's business, operating results
and financial condition could be materially and adversely affected. Due to the
foregoing factors, it is likely that the Company's operating results for some
future quarter will fall below the expectations of securities analysts and
investors. In such event, the trading price of the Company's common stock could
be materially and adversely affected.
VOLATILITY OF THE COMPANY'S COMMON STOCK PRICE. The market for the
Company's common stock is highly volatile. The trading price of the Company's
common stock fluctuated widely in 1996 and the first three months in 1997 and
may continue to be subject to wide fluctuations in response to quarterly
variations in operating and financial results, announcements of new products or
customer contracts by the Company or its competitors, litigation and other
factors. Any shortfall in revenue or earnings from levels expected by securities
analysts or others could have an immediate and significant adverse effect on the
trading price of the Company's common stock in any given period. Additionally,
the Company may not learn of, or be able to confirm, revenue or earnings
shortfalls until late in the fiscal quarter or following the end of the quarter,
which could result in an even more immediate and adverse effect on the trading
of the Company's common stock. Finally, the Company participates in a highly
dynamic industry, which often results in significant volatility of its common
stock price.
NEED FOR ADDITIONAL EQUITY FINANCING. The Company may be required to seek
additional equity financing to meet NASDAQ minimum net worth requirements,
continuing operations, as well as, pay the unsecured floating rate convertible
subordinated note and related outstanding interest with CA. Furthermore, the
Company must achieve a reasonable operating performance to satisfy its current
and future financing needs. There can be no assurance that financing will be
available on reasonable terms or at all. Any additional equity financing will
result in dilution to the Company's shareholders.
NEW PRODUCT RISKS; RAPID TECHNOLOGICAL CHANGE. The markets for the
Company's software products and services are characterized by rapid
technological developments, evolving industry standards, swift
9
<PAGE>
changes in customer requirements and computer operating environments, and
frequent new product introductions and enhancements. As a result, the success of
the Company depends substantially upon its ability to continue to enhance its
existing products, develop and introduce in a timely manner new products
incorporating technological advances and meet increasing customer expectations,
all on a timely and cost-effective basis. To the extent one or more competitors
introduce products that better address customer needs, the Company's business
could be adversely affected. The Company currently markets the following primary
products: CENTURA, SQLWINDOWS, SQLBASE and SQLHOST, as well as FORESITE, the
Internet integration product, sold by the Company on a non-exclusive basis
pursuant to the Distributorship Agreement with InfoSpinner, Inc. Its strategy is
centered on the successful delivery and market acceptance of its CENTURA
products and FORESITE product. The release of the CENTURA line of products
occurred in May 1996. The Company's success will also depend on the ability of
its products to perform well with existing and future leading, industry-standard
application software products intended to be used in connection with RDBMS. Any
failure to deliver these products as scheduled or their failure to achieve early
market acceptance as a result of competition, technological change, failure of
the Company to timely release new versions or upgrades, the failure of such
upgrades to achieve market acceptance or otherwise, could have a material
adverse effect on the business, operating results and financial condition of the
Company. In addition, commercial acceptance of the Company's products and
services could be adversely affected by critical or negative statements or
reports by industry and financial analysts concerning the Company and its
products, or other factors such as the Company's financial performance. If the
Company is unable to develop and introduce new products or enhancements to
existing products in a timely manner in response to changing market conditions
or customer requirements, its business, operating results and financial
condition could be materially and adversely affected.
The Company depends substantially upon internal efforts for the development
of new products and product enhancements. The Company has in the past
experienced delays in the development of new products and product versions,
which resulted in loss or delays of product revenues, and there can be no
assurance that the Company will not experience further delays in connection with
its current product development or future development activities. Also, software
products as complex as those offered by the Company may contain undetected
errors when first introduced or as new versions are released. The Company has in
the past discovered software errors in certain of its new products and
enhancements, respectively, after their introduction. Although the Company has
not experienced material adverse effects resulting from any such errors to date,
there can be no assurance that errors will not be found in new products or
releases after commencement of commercial shipments, resulting in adverse
product reviews and a loss of or delay in market acceptance, which could have a
material adverse effect upon the Company's business, operating results and
financial condition.
From time to time, the Company or its competitors may announce new products,
product versions, capabilities or technologies that have the potential to
replace or shorten the life cycles of the Company's existing products. The
Company has historically experienced increased returns of a particular product
version following the announcement of a planned release of a new version of that
product. The Company provides allowances for anticipated returns, and believes
its existing policies result in the establishment of allowances that are
adequate, and have been adequate in the past, but there can be no assurance that
product returns will not exceed such allowances in the future. The announcement
of currently planned or other new products may cause customers to delay their
purchasing decisions in anticipation of such products, which could have a
material adverse effect on business, operating results and financial condition
of the Company.
HIGHLY COMPETITIVE MARKETS. The markets for software products such as the
Company's products are intensely competitive, subject to rapid change and
characterized by constant demand for new product features, pressure to
accelerate the release of new products and product enhancements and to reduce
prices. A number of companies currently offer products that compete directly or
indirectly with one or more of the Company's products. Competitors of the
Company include, among others, providers of
10
<PAGE>
sophisticated database software, originally designed and marketed primarily for
use with mainframes and minicomputers, including IBM, Informix Corporation,
Ingres, Oracle and Sybase. The Company also faces competition from providers of
PC-based software products, including Microsoft and Borland. These competitors
offer database server products and front-end tools designed for stand-alone PCs
but may currently or may in the future offer additional integrated PC
client/server software. In addition, the Company faces competition from
providers of software specifically developed for the PC client/server market,
including front-end tools offered by Sybase's Powersoft Division, Microsoft, and
Forte, and connectivity software competitors, such as IBI Systems, Inc. and
Sybase's Micro DecisionWare Division. The Company also faces potential
competition from vendors of applications development tools based on 4GLs or CASE
technologies. With the emergence of the World Wide Web as an important platform
for application development and deployment, additional competitors or potential
competitors have emerged.
Many of the Company's competitors or potential competitors have longer
operating histories and significantly greater financial, managerial, technical,
and marketing resources, as well as greater name recognition and a larger
installed base, than the Company. A variety of potential actions by any of these
competitors, including a reduction of product prices, increased promotion,
announcement or accelerated introduction of new or enhanced products or
features, acquisitions of software applications or technologies from third
parties, the formation of strategic alliances, product giveaways or product
bundling could have a material adverse effect on the business, operating results
and financial condition of the Company. The Company's products experienced
increased competition in 1995, 1996 and the first quarter of 1997, resulting in
loss of market share. Present or future competitors may be able to develop
products comparable or superior to those offered by the Company or adapt more
quickly to new technologies or evolving customer requirements. Such competition
has in the past and may again in the future result in price reductions and/or
loss of market share and has in the past and may again in the future have a
material adverse effect on the Company's business, operating results and
financial condition. In particular, while the Company is currently developing
additional product enhancements that it believes address customer requirements,
there can be no assurance that the development or introduction of these
additional product enhancements will be successfully completed on a timely basis
or that these product enhancements will achieve market acceptance. Accordingly,
there can be no assurance that the Company will be able to continue to compete
effectively in its markets, that competition will not intensify or that future
competition will not have a material adverse effect on the Company's business,
operating results and financial condition.
MARKET ACCEPTANCE OF PC CLIENT/SERVER SYSTEMS. Substantially all of the
Company's revenues have been derived from the licensing of software products for
PC client/server systems. Licenses of such products are expected to continue to
account for substantially all of the Company's revenues for the foreseeable
future. With the increasing focus on enterprise-wide systems, some customers may
opt for solutions that favor mainframe or mini-computer solutions. Accordingly,
some companies may abandon use of PC client/server systems, which could have a
material adverse effect on the Company's future success.
COMPONENTIZED MARKETS. The advent of so-called componentized software may
alter the way in which customers buy software. As specific software
functionality can be bundled into smaller units or objects rather than in broad,
highly functional products such as the Company's development tools, customers
may be less willing to buy such broad, highly functional products. If such a
trend continues, there can be no assurance that the Company will be able to
repackage and efficiently distribute its products in such componentized
packages. The costs and efforts necessary to package and distribute such
components are largely unknown. Failure of the Company to introduce
componentized products successfully and cost-effectively could have a material
adverse effect on the Company's business, operating results and financial
condition.
11
<PAGE>
INTERNET SOFTWARE MARKET. The market for Internet software in general, and
the segments of such market addressed by the FORESITE products sold by the
Company on a non-exclusive basis pursuant to a Distributorship Agreement with
InfoSpinner, Inc. and the Company's other products are relatively new. The
future financial performance of the Company will depend in part on the continued
expansion of this market and these market segments and the growth in the demand
for FORESITE products and other products developed by the Company, as well as
increased acceptance of the Company's products by MIS professionals. There can
be no assurance that the Internet software market and the relevant segments of
the market will continue to grow, that the Company will be able to respond
effectively to the evolving requirements of the market and market segments, or
that MIS professionals will accept the Company's products. If the Company is not
successful in developing, marketing, localizing and selling applications that
gain commercial acceptance in these markets and market segments on a timely
basis, the Company's business, operating results and financial condition could
be materially and adversely affected.
DEPENDENCE UPON DISTRIBUTION CHANNELS. The Company relies on relationships
with value-added resellers and distributors for a substantial portion of its
sales and revenues. Some of the Company's resellers and distributors also offer
competing products. Most of the Company's resellers and distributors are not
subject to any minimum purchase requirements, can cease marketing the Company's
products at any time, and may from time to time be granted stock exchange or
rotation rights. The introduction of new and enhanced products may result in
higher product returns and exchanges. Any product returns or exchanges in excess
of recorded allowances could have a material adverse effect on the Company's
business, operating results and financial condition. The Company also maintains
strategic relationships with a number of vertical software vendors and other
technology companies for marketing or resale of the Company's products. Any
termination or significant disruption of the Company's relationship with any of
its resellers or distributors, or the failure by such parties to renew
agreements with the Company, could materially and adversely affect the Company's
business, operating results and financial condition. Since 1994 the Company has
reduced its resources devoted to North American corporate sales and also
decreased its expenditures on corporate and product marketing. The Company
expects to rely increasingly on third-party channels for sales of packaged
product while focusing its corporate sales efforts on larger opportunities.
Failure of the Company to successfully implement, support and manage the sales
strategies could have a material adverse effect on the Company.
The distribution channels through which client/server software products are
sold have been characterized by rapid change, including consolidations and
financial difficulties of distributors, resellers and other marketing partners
including certain of the Company's current distributors. The bankruptcy,
deterioration in financial condition or other business difficulties of a
distributor or retailer could render the Company's accounts receivable from such
entity uncollectible, which could result in a material adverse effect on the
Company's business, operating results and financial condition. There can be no
assurance that distributors will continue to purchase the Company's products or
provide the Company's products with adequate promotional support. Failure of
distributors to do so could have a material and adverse effect on the Company's
business, operating results and financial condition.
In a number of markets, including rapidly growing client/server markets such
as Japan, Korea, China/ Hong Kong and Brazil, the Company has entered into
quasi-exclusive multi-year agreements with independent companies that have also
licensed the use of the Company's name. These agreements are in place to
increase the Company's opportunities and penetration in such markets where the
rapid adoption of client/server technologies is anticipated. While the Company
believes that to date these agreements have increased the Company's penetration
in these markets, there can be no certainty that this performance will continue
nor that these relationships will remain in place. The Company's future cost of
maintaining its business in these markets could increase substantially if these
agreements are not renewed.
12
<PAGE>
DEPENDENCE ON THIRD PARTY ORGANIZATIONS. The Company is increasingly
dependent on the efforts of third party "partners", including consultants,
system houses and software developers to implement, service and support the
Company's products. These third parties increasingly have opportunities to
select from a very broad range of products from the Company's competitors, many
of whom have greater resources and market acceptance than the Company. In order
to succeed, the Company must actively recruit and sustain relationships with
these third parties. There can be no assurance that the Company will be
successful in recruiting new partners or in sustaining its relationships with
its existing partners.
INTERNATIONAL SALES AND OPERATIONS. A key component of the Company's
strategy is continued expansion into international markets, and the Company
currently anticipates that international sales, particularly in new and emerging
markets, will continue to account for a significant percentage of total
revenues. The Company will need to retain effective distributors, and hire,
retain and motivate qualified personnel internationally to maintain and/or
expand its international presence. There can be no assurance that the Company
will be able to successfully market, sell, localize and deliver its products in
these international markets. In addition to the uncertainty as to the Company's
ability to sustain or expand its international presence, there are certain risks
inherent in doing business on an international level, such as unexpected changes
in regulatory requirements and government controls, problems and delays in
collecting accounts receivable, tariffs, export license requirements and other
trade barriers, difficulties in staffing and managing foreign operations, longer
payment cycles, political and economic instability, fluctuations in currency
exchange rates, seasonal reductions in business activity during summer months in
Europe and certain other parts of the world, restrictions on the export of
critical technology, and potentially adverse tax consequences, which could
adversely impact the success of international operations. Sales of products by
the Company currently are denominated principally in U.S. dollars. Accordingly,
any increase in the value of the U.S. dollar as compared to currencies in
overseas markets would increase the foreign currency-denominated cost of the
Company's products, which may negatively affect the Company's sales in those
markets. In addition, effective copyright and trade secret protection may be
limited or unavailable under the laws of certain foreign jurisdictions. There
can be no assurance that one or more of such factors will not have a material
adverse effect on the Company's international operations and, consequently, on
the Company's business, operating results and financial condition.
DEPENDENCE ON KEY PERSONNEL. The Company's future performance is
substantially dependent on the performance of its executive officers and key
product development, technical, sales, marketing and management personnel. The
Company does not have employment or non-competition agreements with any of its
employees except Sam Inman, the Company's CEO and President. The loss of the
services of any executive officer or other key technical or management personnel
of the Company for any reason could have a material adverse effect on the
business, operating results and financial condition of the Company.
The future success of the Company also depends on its continuing ability to
identify, hire, train, motivate and retain other highly qualified technical and
managerial personnel. Competition for such personnel is intense and the Company
has experienced difficulty in identifying and hiring qualified engineering and
software development personnel. There can be no assurance that the Company will
be able to attract, assimilate or retain other highly qualified technical and
managerial personnel in the future. The inability to attract and retain the
necessary technical and managerial personnel could have a material and adverse
effect upon its business, operating results and financial condition.
PROPRIETARY RIGHTS. The success and ability of the Company to compete is
dependent in part upon the Company's proprietary technology. While the Company
relies on trademark, trade secret and copyright laws to protect its technology,
the Company believes that factors such as the technological and creative skills
of its personnel, new product developments, frequent product enhancements, name
recognition and customer support are more essential to establishing and
maintaining a technology leadership position. The Company has one patent with
respect to its SQLWINDOWS and CENTURA products. The Company believes that the
ownership of patents is not presently a significant factor in its business and
that its success does
13
<PAGE>
not depend on the ownership of patents, but primarily on the innovative skills,
technical competence and marketing abilities of its personnel. Also, there can
be no assurance that others will not develop technologies that are similar or
superior to the Company's technology. The source code for the Company's
proprietary software is protected both as a trade secret and as a copyrighted
work. Despite these precautions, it may be possible for a third party to copy or
otherwise obtain and use their products or technology without authorization, or
to develop similar technology independently. In addition, effective copyright
and trade secret protection may be unavailable or limited in certain foreign
countries.
The Company generally enters into confidentiality or license agreements with
its employees, consultants and vendors, and generally controls access to and
distribution of its software, documentation and other proprietary information.
Despite efforts to protect proprietary rights, unauthorized parties may attempt
to copy aspects of the Company's products or to obtain and use information that
is regarded as proprietary. Policing such unauthorized use is difficult. There
can be no assurance that the steps taken by the Company will prevent
misappropriation of the Company's technology or that such agreements will be
enforceable. In addition, litigation may be necessary in the future to enforce
intellectual property rights, to protect trade secrets or to determine the
validity and scope of the proprietary rights of others. Such litigation could
result in substantial costs and diversion of resources and could have a material
adverse effect on the Company's business, operating results and financial
condition.
There can be no assurance that third parties will not claim infringement by
the Company with respect to current or future products, and the Company expects
that it will increasingly be subject to such claims as the number of products
and competitors in the client/server and Internet connectivity software market
grows and the functionality of such products overlaps with other industry
segments. In the past, the Company has received notices alleging that its
products infringe trademarks of third parties. The Company has historically
dealt with and will in the future continue to deal with such claims in the
ordinary course of business, evaluating the merits of each claim on an
individual basis. There are currently no material pending legal proceedings
against the Company regarding trademark infringement. Any such third party
claims, whether or not they are meritorious, could result in costly litigation
or require the Company to enter into royalty or licensing agreements. Such
royalty or license agreements, if required, may not be available on terms
acceptable to the Company, or at all. If the Company was found to have infringed
upon the proprietary rights of third parties, it could be required to pay
damages, cease sales of the infringing products and redesign or discontinue such
products, any of which could have a material adverse effect on the Company's
business, operating results and financial condition.
MANAGEMENT OF POTENTIAL GROWTH; INTEGRATION OF POTENTIAL ACQUISITIONS. In
recent years, the Company has experienced both expansion and contraction of its
operations each of which has placed significant demands on the Company's
administrative, operational and financial resources. To manage future growth, if
any, the Company must continue to improve its financial and management controls,
reporting systems and procedures on a timely basis and expand, train and manage
its work force. There can be no assurance that the Company will be able to
perform such actions successfully. The Company intends to continue to invest in
improving its financial systems and controls in connection with higher levels of
operations. Although the Company believes that its systems and controls are
adequate for the current level of operations, the Company anticipates that it
may need to add additional personnel and expand and upgrade its financial
systems to manage any future growth. The Company's failure to do so could have a
material adverse effect upon the Company's business, operating results and
financial condition. In the future, the Company may make acquisitions of
complementary companies, products or technologies. Managing acquired businesses
entails numerous operational and financial risks, including difficulties in
assimilating acquired operations, diversion of management's attention to other
business concerns, amortization of acquired intangible assets and potential loss
of key employees or customers of acquired operations. There can be no assurance
that the Company will be able to effectively achieve growth, or manage any such
growth, and failure to do so could have a material adverse effect on the
Company's operating results.
14
<PAGE>
LEGAL PROCEEDINGS. There are currently no material pending legal
proceedings against the Company or any of its subsidiaries, other than ordinary
routine litigation incidental to the business of the Company. The Company
operates, however, in a complex and volatile industry in which disputes,
litigation, regulatory proceedings and other actions are a necessary risk of
doing business. There can be no assurance that the Company will not participate
in such legal proceedings and that the costs and charges will not have a
material adverse impact on the Company's future success.
15
<PAGE>
PART II -- OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
On May 2, 1994, a lawsuit was filed against the Company and certain of its
officers and directors, by a holder of the Company's common stock, on his own
behalf and purportedly on behalf of a class of others similarly situated. The
lawsuit was subsequently amended, and alleged that the Company made false and
misleading statements and failed to disclose material information relating to
existing business conditions and the Company's prospects and that officers and
directors violated the insider trading laws. The plaintiff was seeking damages
of an unstated amount.
The Company reached a binding settlement agreement with plaintiffs' counsel
in this lawsuit, and gained court approval on September 30, 1996. Under the
terms of the agreement, the Company would provide $3 million and 1,875,000
shares to a fund to be distributed among the members of the plaintiff class. The
Company also agreed to supplement this payment with up to 625,000 additional
shares in the event the value of its common stock was less than an average price
of $6.00 per share during certain twenty day trading periods specified by the
Court. The Company's directors and officers' liability insurer paid
approximately $2 million of the cash contribution to the settlement fund. The
Company paid the remaining cash settlement during 1996. The 1995 financial
statements include $15.3 million in litigation expense for the agreement and
associated legal expenses. As of March 31, 1997, the Company has distributed all
common stock shares as required by the settlement agreement.
ITEM 2. CHANGES IN SECURITIES -- NOT APPLICABLE
ITEM 3. DEFAULTS IN SENIOR SECURITIES -- NOT APPLICABLE
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS -- NOT APPLICABLE
ITEM 5. OTHER INFORMATION -- NOT APPLICABLE
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits (numbered in accordance with Item 601 of Regulation S-K)
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ----------- ---------------------------------------------------------------------------------------------------
<C> <S>
10.21* Distributorship Agreement dated January 6, 1997 between Centura Software Corporation and
InfoSpinner, Inc.
</TABLE>
- ------------------------
* Indicates that portions have been omitted for which confidential treatment was
granted by the Securities and Exchange Commission pursuant to an order dated
April 2, 1997.
(b) Reports on Form 8-K -- Not Applicable
16
<PAGE>
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 thereunto duly authorized.
CENTURA SOFTWARE CORPORATION
Date: May 15, 1997 By: /s/ RICHARD A. GELHAUS
-----------------------------------------
Richard A. Gelhaus, SENIOR VICE PRESIDENT
OF FINANCE AND OPERATIONS, CHIEF FINANCIAL
OFFICER (PRINCIPAL FINANCIAL AND
ACCOUNTING OFFICER)
17
<PAGE>
AN "XXX" INDICATES THAT CONFIDENTIAL MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY IN A REQUEST FOR CONFIDENTIAL TREATMENT WITH THE SECURITIES AND
EXCHANGE COMMISSION
EXHIBIT 10.21
DISTRIBUTORSHIP AGREEMENT
THIS DISTRIBUTORSHIP AGREEMENT (this "Agreement") is made this 6th day of
January, 1997 (the "Effective Date"), by and between Centura Software
Corporation, a California corporation, having its principal office at 1060 Marsh
Road, Menlo Park, California 94025 ("Distributor"), and InfoSpinner, Inc., a
Delaware corporation, having its principal office at 1702 Drake Drive,
Richardson, Texas 75081, U.S.A. ("INFO").
ARTICLE 1. GRANT OF DISTRIBUTORSHIP.
1.01 LICENSE GRANT. Subject to the terms and conditions of this
Agreement, INFO grants and Distributor accepts during the Term of this Agreement
an nonexclusive, nontransferable right to reproduce, market and license use of
the INFO products listed on Exhibit A (the "Products") but only to Customers (as
defined below) located in the territory set forth on the signature page hereto
(the "Territory"). For the avoidance of doubt, "Products" as used herein shall
not include any Kanji or other non-English language or localized version of any
INFO product. Distributor may appoint subdistributors provided that any such
subdistributor shall be bound by an enforceable writing for INFO's benefit to
all the limitations, disclaimers and restrictions of this Agreement. Except as
provided in Section 3.01, Distributor is not entitled to receive any source code
or source documentation with respect to the Products. "Customer" means any third
party which is granted a license by Distributor or a subdistributor to use (and
not to redistribute) internally on a single designated hardware and software
system any Product(s). A Customer's location shall be where the Product(s) are
installed.
1.02 OWNERSHIP.
Notwithstanding anything else, as between the parties, INFO retains (i) all
title to, and, except as expressly and unambiguously licensed herein, all rights
in and to the Products, all copies and derivative works therefore (by whomever
produced) and all related documentation and materials, (ii) all of their service
marks, trademarks, tradenames or any other designations (and notwithstanding
anything else herein, Distributor may not use any name, mark or designation used
by INFO, except for use in advertising or marketing the Products in accordance
with the terms and conditions contained herein) and (iii) all copyrights, patent
rights trade secret rights and other proprietary rights in the Products.
1.03 DISTRIBUTOR USE OF PRODUCTS. Distributor may use the Products solely
to fulfill its marketing, support, and maintenance responsibilities under this
Agreement.
1.04 STANDARD LICENSE AGREEMENT. Distributor shall license the Products
pursuant to Distributor's standard terms and conditions, which will be, and
shall whenever revised, be approved in writing by INFO, which approval shall not
be unreasonably withheld. Distributor shall assure that its standard License
Agreement with subdistributors and its standard End-User License Agreement with
Customers (the "License Agreements") conform to all requirements of this
Agreement. Specifically, but without limitation, the License Agreements shall
incorporate in substance the provisions herein regarding confidentiality,
limited warranty, limitation of liability/damages, and all restrictions upon
disclosure, reproduction, or duplication of the Products. In addition, if the
Product is distributed to Customers via the Internet or by other electronic
means, the Customer shall be required to affirmatively acknowledge acceptance of
the license by "clicking" on an acceptance button or other similar means.
Distributor shall not modify the substantive content of its License Agreements,
as approved by INFO without the further prior written approval of INFO.
Distributor and its subdistributors authorized hereunder may execute License
Agreements written in other than the English language. In the event of any
discrepancy between the non-English
1
<PAGE>
and the English versions, the latter shall control. Distributor shall represent
to INFO that such non-English version is an accurate translation of the English
version, and Distributor shall be responsible for compliance of its
distributors, affiliates, agents and customers with the terms and conditions
herein regarding confidentiality, limited warranty, limitation of liability,
damages, and all restrictions upon disclosure, reproduction, or duplication of
the Products.
1.05 PRODUCT ENHANCEMENTS.
(a) During the Term of this Agreement, INFO shall provide Distributor
with modifications, upgrades, or improvements to the Products, or any part
thereof, that INFO may from time to time make available that: (i) is
identified as a new release of a Product, (ii) contains a modification,
upgrade or improvement to the Product, (iii) is not a separately priced
software component (and does not include any software that INFO distributes
as a separate product) and (iv) is made commercially generally available by
INFO (a "Product Enhancement"). Each such Product Enhancement will be deemed
a "Product" for purposes of this Agreement, including royalty calculations.
(b) INFO shall in good faith (but with no further obligation) consider
any functionality changes or modifications to the Products specifically
requested by Distributor to facilitate integration with Distributor products
and/or exploitation of the Products in the Territory. Any such modifications
which INFO commits to undertake shall be the subject of a separate agreement
between the parties and shall not be deemed "Product Enhancements" for
purposes of this Agreement.
1.06 DELIVERY OF PRODUCT AND DOCUMENTATION.
INFO will provide Distributor with two production masters of each Product
and any Product Enhancement, and will provide two copies of the documentation
for each Product and any Product Enhancement. Distributor is responsible for
duplicating Products, any Product Enhancements and all documentation for
distribution to Customers.
ARTICLE 2. TERM AND RENEWAL.
2.01 TERM. This Agreement shall commence on the above date and shall
continue for three (3) years unless earlier terminated pursuant to Section
11.01.
2.02 RENEWAL. This Agreement shall automatically renew for an unlimited
number of successive one-year periods, unless terminated as provided in Section
11.01 or either party notifies the other party thirty (30) days prior to renewal
that it wishes to negotiate a change to this Agreement. In case of
renegotiation, renewal will not be effective unless the negotiated changes are
mutually agreed to in writing by the parties.
ARTICLE 3. ESCROW & SUPPORT.
3.01 ESCROW. Within 60 days after the Effective Date, INFO and
Distributor shall enter into a Software Source Code Escrow Agreement with a
reputable third party escrow agent that is reasonably acceptable to the parties
(the "Escrow Agreement"), which Escrow Agreement shall provide for the release
of the source code of the Products to Distributor in the event that INFO becomes
insolvent, whether voluntary or involuntary, or if any process or judicial
proceeding is instituted against INFO by attachment or levy or execution, in
insolvency or bankruptcy, or in receivership (and such process or proceeding is
not resolved within 120 days thereafter), or if any general assignment is made
or attempted to be made for the benefit of creditors by such party.
2
<PAGE>
AN "XXX" INDICATES THAT CONFIDENTIAL MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY IN A REQUEST FOR CONFIDENTIAL TREATMENT WITH THE SECURITIES AND
EXCHANGE COMMISSION
3.02 BACKLINE SUPPORT AND MAINTENANCE FEE. Distributor shall be
responsible for all Customer support for the Products. During the term of this
Agreement, INFO shall provide 20 hours of backline support (I.E., support that
requires access and manipulation of the Product source code) per month directly
to Distributor's designated INFO product support manager in exchange for an
annual backline support fee of $XXXXX. INFO's sole obligation with respect to
any Product or documentation errors will be to use all diligent efforts to
correct, at its expense, any reproducible error about which it receives written
notice within a reasonable period of time after discovery. INFO's support
obligations contained in this Section 3.03 are contingent upon proper use of the
Product(s) and shall not apply if a Product (i) is modified by Distributor or by
any other party without INFO's prior written approval; (ii) is otherwise
tampered with; or (iii) if it is used on or with a version of a hardware or
software product which INFO does not support at the time of such use.
ARTICLE 4. MARKETING AND ADVERTISING.
4.01 DISTRIBUTOR MARKETING EFFORTS AND SALES TARGETS.
(a) Distributor shall, during the Term of this Agreement, use its best
efforts to market, advertise, distribute and otherwise promote the
distribution, licensing and use of Products in the Territory on a continuing
basis.
(b) Distributor will provide nonbinding forecasts of monthly sales for
the upcoming six (6) months on a rolling basis, prior to the start of the
month. Such forecasts and updates shall include such information with
respect to future sales of the Products as INFO shall reasonably request.
4.02 DISTRIBUTOR STAFF COMMITMENT. Unless INFO agrees otherwise in
writing, all Distributor Customer support activities regarding the Product(s)
shall be performed by Distributor's employees. Distributor shall commit a
sufficient number of trained and qualified personnel to market and promote the
Product(s) and agrees to maintain at least an adequate number of trained staff
personnel.
4.03 USE OF INFO TRADEMARKS AND/OR TRADE NAMES. Distributor shall, at its
option and without separate charge, use INFO's service marks, trademarks and/or
trade names identified in Exhibit C hereto (to which INFO may add or delete from
time to time upon 60 days prior written notice to Distributor) in any
advertising, marketing, technical, or other materials produced or distributed by
Distributor pursuant to this Agreement. In using such service marks, trademarks
and/or trade names, Distributor shall clearly indicate INFO's ownership rights
to such service marks, trademarks and/or trade names. Distributor shall not
acquire any rights in or to such service marks, trademarks or trade names by
virtue of use, and shall immediately cease use upon termination of this
Agreement. Distributor shall promptly notify INFO of any third party use of the
same or similar service marks, trademarks or trade names which may infringe upon
INFO proprietary rights; and shall cooperate with INFO in prosecution of any
such infringement(s). Distributor will not contest the use by or authorized by
INFO of any trademark or application or registration therefor, whether during or
after the term of this Agreement. In connection with its use of INFO's service
marks, trademarks and/or trade names, Distributor will comply with INFO's
quality control standards then in effect. Upon notice from INFO that Distributor
has materially failed to comply with such standards, Distributor shall use its
best efforts to cure such non-compliance. In the event that Distributor does not
cure such noncompliance within a reasonable period of time (not to exceed 30
days) after first receipt of notice from INFO, INFO shall have the right to
suspend Distributor's use of the applicable service mark, trademark and/or trade
name until non-compliance has been cured to INFO's reasonable satisfaction.
3
<PAGE>
ARTICLE 5. INSTALLATION, PRODUCT SUPPORT, TECHNICAL SERVICES.
Distributor shall be solely responsible for, and shall use its best efforts
to ensure, proper installation of the Product(s). Distributor shall be the sole
Customer contact regarding, and shall be responsible for, promptly providing
Customers with installation, technical services (i.e., maintenance), correction
of errors, current Product documentation (including appropriate translations
prepared at its expense), Product related training, and Product Enhancements
(including documentation appropriately translated at its expense). Distributor
may request INFO assistance if Distributor is reasonably unable to meet Customer
requests relating to the Product(s) as long as the Product(s) are installed on
hardware and software environments which INFO supports, and upon terms that are
mutually agreed upon by the parties.
ARTICLE 6. FEES/ROYALTIES; TAXES.
6.01 RECOMMENDED LICENSE AND MAINTENANCE FEES.
(a) All royalties and maintenance fees due INFO hereunder shall be based
upon the then current U.S. Dollar Product License and Maintenance Fees
Schedule attached as Exhibit A (the "Fees Schedule"). INFO will advise
Distributor in writing of changes in the Fees Schedule at least thirty (30)
days prior to the effective date of such changes.
(b) Distributor shall have the right to determine the pricing of the
Products in the Territory (which may differ from the prices suggested on the
Fees Schedule), however, License Fee Royalties to be paid to INFO by
Distributor shall be based on the U.S. Dollar prices set forth in the Fees
Schedule.
6.02 PAYMENT OF ROYALTIES.
(a) Distributor shall pay to INFO the non-refundable (except as set
forth on Exhibit B) Advance Payment (the "Advance") in the amount and
according to the payment schedule set forth in Exhibit B. In addition,
Distributor will pay INFO royalties on each (i) copy of a Product
distributed and (ii) Product maintenance agreement in effect in accordance
with Exhibit B.
(b) Distributor shall report within forty-five days after the end of
each calendar quarter all Royalties due to INFO for Product licenses or
maintenance agreements for which Distributor directly or indirectly receives
payment pursuant to such Product license or maintenance agreement. Along
with such report, Distributor will pay the Royalties due to INFO, with an
offset for advance Royalty payments in accordance with the schedule set
forth in Exhibit B, if any are outstanding at such time.
6.03 DELINQUENT PAYMENT. If any payment provided in Section 6.02 shall
remain unpaid following the time prescribed therefor, Distributor shall pay
INFO, in addition to the payment then owing, interest thereon at 18% per annum,
or at the maximum interest rate allowed by law, if such rate is lower, for the
period such payment is delinquent.
6.04 TAXES AND DUTIES. In addition to all license and maintenance fees
due hereunder, Distributor shall pay all taxes, duties, import, customs and
export fees (including, but not limited to any withholding taxes imposed by any
government entity), and any other charges or assessments established by any
governmental agency, except taxes imposed on INFO based on its net income.
ARTICLE 7. CONFIDENTIALITY.
7.01 CONFIDENTIALITY OF PRODUCT(S). Unless expressly provided otherwise
herein, the Product(s), together with all Product Enhancements, materials and
knowledge related thereto and any other items identified by INFO as
"confidential", are provided to Distributor and any Customer, and their
respective employees, agents and representatives, in confidence and shall not be
duplicated or disclosed by any of them in any form for the use or benefit of any
other person or entity. Neither Distributor nor any Customer shall reproduce,
transcribe, imitate, reverse engineer, or decompile the Products. Provided that
the recipient has executed a confidentiality agreement that restricts his right
to use or disclose the Product
4
<PAGE>
or other confidential information that is at least as restrictive as
Distributor's obligation under this Section 7.01, Distributor or any Customer
may disclose relevant aspects of the Product(s) to each other and to their
respective employees, agents or representatives to the extent that such
disclosure is reasonably necessary to Distributor's use of the Product(s)
pursuant to this Agreement, or to Customer's use pursuant to the applicable
License Agreement, provided that Distributor shall take all reasonable steps to
ensure that the Product(s) are not disclosed or duplicated in contravention of
this Agreement including, but not limited to, execution of written
confidentiality agreements by appropriate persons.
7.02 CONFIDENTIALITY OF AGREEMENT. Distributor and INFO shall not
disclose the terms and conditions of this Agreement to anyone other than: (i)
its employees who reasonably acquire such knowledge in the ordinary course and
scope of their employment; (ii) its agents or representatives whose assigned
duties reasonably require that such disclosure be made, or to the extent that
such disclosure is reasonably necessary for use of the Products; (iii)
Customers, to the extent reasonably necessary to license the Product(s) or to
comply with the provisions hereof; and (iv) third parties in connection with a
potential financial transaction or similar arrangement.
7.03 DUTY TO ASSIST. In the event of any violation or suspected violation
of any provision of this Article 8, Distributor shall immediately notify INFO
and shall, at its expense, assist INFO in the enforcement of such provision
against any employee, agent or representative of Distributor or Customer.
7.04 DISCLOSURE REQUIRED BY LAW. Nothing in this Article 8 shall in any
way restrict disclosure by either party pursuant to any law, the order of any
court or governmental agency, or the rules or regulations of any governmental
agency having jurisdiction governing the installation location. However,
Distributor shall immediately notify INFO in writing of any attempt of
attachment, levy, or execution upon or against the Product(s) and provide INFO
with all reasonable assistance and cooperation to limit or suppress such
disclosure.
7.05 SURVIVAL. Provisions of this Article 8 shall survive termination of
this Agreement in accordance with Article 12.
ARTICLE 8. LIMITED WARRANTIES.
8.01 EXPRESS WARRANTIES. INFO warrants that it has the right to enter
into this Agreement and to grant Distributor the right to license or use the
Product(s) in accordance with this Agreement.
8.02 DISCLAIMER OF WARRANTIES. DISTRIBUTOR HEREBY EXPRESSLY AGREES AND
ACKNOWLEDGES THAT THE FOREGOING WARRANTIES CONTAINED IN SECTION 8.01 ARE IN LIEU
OF ANY AND ALL OTHER WARRANTIES. INFO DISCLAIMS ANY AND ALL OTHER
REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE REGARDING DISTRIBUTOR'S OR CUSTOMER'S
APPLICATION OR USE OF THE PRODUCTS, AND NONINFRINGEMENT.
8.03 LIMITATION OF LIABILITY/DAMAGES. Distributor agrees that
notwithstanding anything else in this agreement, INFO will not be liable with
respect to any subject matter of this Agreement under any contract, negligence,
strict liability or other legal or equitable theory (i) for any damages arising
out of use of Product, except those arising from patent or copyright
infringement as provided in Article 10, and including, but not limited to,
breach of any warranty, (ii) for any amount in excess of the lesser of actual
direct damages to Distributor or the total amount of payments paid by
Distributor to INFO pursuant to Section 6.02 during the twelve (12) months
preceding the events or occurrences giving rise to the damage, (iii) for the
cost of procurement of substitute goods, services or technology; and (iv) in any
event, for any damages incurred by Distributor, Customer, or by any other
person, organization or entity as a result of Distributor's, or its Customer's,
misuse of the Product(s), even if INFO had been advised of the possibility
5
<PAGE>
of such damages. INFO shall not be liable for any consequential, special, or
incidental damages, lost proceeds, or for any claim or demand against
Distributor by any other person, organization, or entity, except for patent or
copyright infringement as provided in Article 10.
8.04 TIME LIMITATION. Any legal proceeding based upon or arising out of
this Agreement must be instituted within one (1) year from the date of
occurrence of the events upon which such legal proceeding is based.
ARTICLE 9. PATENT OR COPYRIGHT INFRINGEMENT.
If any alleged infringement of patent or copyright is asserted against
Distributor based upon its use or license of the Product(s), INFO will indemnify
Distributor in investigation of such claims, in preparation and defense against
such claims, or in settlement thereof, provided that INFO shall have received
from Distributor notice of said claim within fifteen (15) days of the assertion
thereof; and further provided that INFO shall have the exclusive right, if it so
chooses, to control and direct the investigation, defense, or settlement of such
claims; and further provided that INFO shall receive the complete cooperation
and assistance of Distributor. In the event an infringement is determined or, if
required by settlement, INFO may substitute for the Product and documentation
substantially equivalent programs and documentation, or, alternatively, INFO may
procure for Distributor the right to continue distributing the Product. If the
claim is based on the fact that Distributor or any third party has modified the
Product without INFO authorization, Distributor shall reimburse INFO for any and
all costs associated with its investigation and defense of said claim(s). The
foregoing obligation of INFO does not apply with respect to the Products or
portions or components thereof (i) made in whole or in part in accordance to
Distributor's specifications, (ii) which are modified after shipment by any
party other INFO, if the alleged infringement relates to such modification,
(iii) combined with other non-INFO products, processes or materials where the
alleged infringement relates to such combination, (iv) where Distributor
continues allegedly infringing activity after being notified thereof or after
being informed of modifications that would have avoided the alleged
infringement, or (v) where Distributor's use of the Products is incident to an
infringement not resulting primarily from the Product.
ARTICLE 10. RECORDS, REPORTS AND AUDITS.
10.01 REQUIRED RECORDS. Distributor shall prepare and maintain, at its
expense, complete and accurate books and records documenting its reproduction
and licensing of Product(s) and rendering of support and maintenance pursuant to
this Agreement; and its receipt of all fees in or relating thereto. Distributor
shall maintain such books and records for a minimum of three (3) years from the
later of the date of the last time of license granted hereunder or provision of
services, respectively.
10.02 REPORTS TO INFO. Distributor shall, at its expense, provide INFO a
quarterly written report of Distributor's marketing, licensing and support
activities pursuant to this Agreement. Such reports shall include, all fees due
INFO and confirm Distributor's receipt of fees from Customers upon which fees
are calculated; all taxes paid by Distributor applicable to the Product(s);
License Agreement terminations; a summary of Product support activities and
Product operational problems. Reports are due within a reasonable time after the
quarter end to which such report relates. In addition, Distributor shall
promptly provide INFO with such other reports and in such manner as INFO may
reasonably request from time to time. AUDIT. During the Term of this Agreement
and for one (1) year thereafter, INFO shall have the right, at its expense and
upon reasonable written notice to Distributor to have the relevant records of
Distributor reviewed by INFO's outside certified public accountant to verify
Distributor's performance hereunder. Provided, however, that such examination
shall take place at a place and time mutually convenient to Distributor and INFO
and no more than once per calendar year.
6
<PAGE>
ARTICLE 11. TERMINATION AND REMEDIES.
11.01 TERMINATION. This Agreement may be terminated:
(a) upon 10 days notice, if Distributor fails to make any payments
required by this Agreement when due;
(b) in the event either party fails materially to fulfill its
obligations hereunder, the other party shall notify the non-complying party
in writing of the breach and the reasons therefor. If the non-complying
party fails to remedy the breach within thirty (30) days from the date of
receipt of such notice, or, in the event such breach cannot be remedied
within thirty (30) days, the breaching party has not undertaken substantial
efforts to cure the breach (and in any event, cured such breach within 60
days of first notice thereof), the other party may immediately terminate
this Agreement by giving written notice of termination to the non-complying
party; notwithstanding the foregoing, however, INFO may terminate this
Agreement immediately upon notice if Distributor violates any provision of
Article 8; or if either party becomes insolvent, whether voluntary or
involuntary, or if any process or judicial proceeding is instituted against
such party by attachment or levy or execution, in insolvency or bankruptcy,
or in receivership, or if any general assignment is made or attempted to be
made for the benefit of creditors by such party, this Agreement may be
terminated by the other party immediately upon written notice.
11.02 EFFECT OF TERMINATION. Neither the right to terminate nor the actual
termination of this Agreement as provided in this Article 12 shall limit the
non-breaching party from pursuing whatever relief it deems appropriate for such
breach in accordance with the provisions of this Agreement. Termination of this
Agreement for any reason shall not relieve Distributor of its obligation to make
full payment to INFO for any amounts due hereunder, as well as payment of taxes
then due or which shall become due hereunder subsequent to termination hereof,
pertaining to any License Agreement which is outstanding after termination.
Within a reasonable time of termination, which shall not occur prior to
Distributor's completion of its existing maintenance obligations to Customers
(and in no event, later than one year after the date of termination of this
Agreement), Distributor shall, at its expense, return to INFO all copies of the
Product(s) and related materials, and of other materials developed by or
belonging to INFO which are in Distributor's possession or control.
Concurrently, a duly authorized officer of Distributor shall certify in writing
to INFO that all such materials have been returned to INFO.
11.03 REMEDIES.
(a) Distributor acknowledges that, except for damages resulting from
breach of its monetary obligations to INFO hereunder, it would be difficult
for INFO to measure damages arising from Distributor's breach of any
provision of this Agreement; that injury to INFO from such breach would be
incalculable and irremediable; and that money damages would, therefore, be
an inadequate remedy for such breach. Accordingly, INFO shall have, in
addition to any other remedies available, the right to preliminary or
permanent injunctive relief enjoining such breach, or attempted breach, by
Distributor.
(b) Distributor shall indemnify and hold INFO harmless from any and all
claims, losses, liabilities and costs (including reasonable attorneys' fees)
resulting from Distributor's or its subdistributors, resellers, employees,
affiliates or other agents of any kind marketing, licensing, or servicing
the Product(s), including, but not limited to, inadequate installations,
maintenance, or Customer assistance, or breach of Distributor's other
obligations hereunder or under any License Agreement.
ARTICLE 12. GENERAL PROVISIONS.
12.01 RELATIONSHIP OF PARTIES. Neither party shall represent that it is an
agent of or for the other party. Both parties acknowledge that the relationship
of Distributor to INFO hereunder shall be, and at all times shall remain, that
of independent contractor. Except as otherwise provided herein, Distributor
shall
7
<PAGE>
have no right or authority to assume, create or enlarge any obligation or
commitment on behalf of INFO and shall not represent itself as having the
authority to bind INFO in any manner whatsoever.
12.02 ASSIGNMENT. Except as otherwise expressly provided herein, neither
party shall assign nor otherwise transfer its rights or obligations under this
Agreement without the prior written consent of the other party. However, (i)
either may assign and delegate this Agreement to a third party in connection
with a merger or sale of substantially all of its assets without the other
party's prior consent and (ii) this Agreement shall be binding on any successor
in interest to all or substantially all of INFO's assets or business or any
purchaser of the ownership rights of any of the Products.
12.03 GOVERNMENT APPROVAL AND REPORTS. Upon execution of this Agreement
and continuing while this Agreement is in effect, Distributor shall make all
required reports to and obtain all requisite approvals from governments in the
countries where Product(s) are licensed. INFO reserves the right to participate
fully in the preparation of such reports or in obtaining such approvals,
including the examination of any and all documents prior to submission to
appropriate authorities. If the laws of any country require registration of this
Agreement, Distributor agrees to register or cause to be registered, at its sole
expense, this Agreement and any such agreements whereby licenses or other rights
are granted by Distributor to any of its Customers.
12.04 FORCE MAJEURE. Except for Distributor payments due to INFO pursuant
to this Agreement, neither party shall be liable for delays in its performance
hereunder due to causes beyond its reasonable control, including, but not
limited to, delays occasioned by acts of God, acts of public enemy, civil war,
insurrection or riots, fires, floods, explosions, earthquakes or other
casualties, or litigation initiated by third parties enjoining, modifying or in
any way restricting the performance under this Agreement by one or both of the
parties.
12.05 NOTICE. All notices or communications given or sent to either party,
except requests for routine technical support services and quarterly reports,
shall be by facsimile with confirming hardcopy by certified mail, postage
prepaid, and addressed as follows:
FOR DISTRIBUTOR: Centura Software Corporation
1060 Marsh Road
Menlo Park, CA 94025
FAX: (415) 617-4681
FOR INFO: InfoSpinner, Inc.
1702 Drake Drive
Richardson, Texas 75081, U.S.A.
FAX: (214) 231-4635
12.06 PROPRIETARY NOTICES. Distributor agrees not to delete, alter, add to
or fail to reproduce in and on any copy of the Products and media the name of
the Product and any copyright or other proprietary notices appearing in or on
any copy, media or master or package materials provided by INFO or which may be
reasonably required by INFO in the future. In addition, at the request of INFO,
INFO will receive reasonable credit in the initial display within the Product,
and all documentation and packaging for Products distributed hereunder.
12.07 PUBLICITY. The parties agrees that they will jointly develop and
announce through a press release the relationship established hereunder. The
information contained in the press release (or otherwise approved by a party
hereto) may be disseminated without regard to Section 7.02 above.
12.08 ENTIRE AGREEMENT. This Agreement, including Exhibits and Schedules
attached hereto, constitutes the entire agreement between the parties and
supersedes all previous communications, representations or agreements, either
written or oral, with respect to the subject matter hereof.
8
<PAGE>
12.09 AMENDMENTS AND WAIVER. The provisions of this Agreement may be
waived, altered, amended or repealed, in whole or in part, only upon the written
consent of both parties. No waiver of a breach of any covenant shall be
construed as a waiver of any other or subsequent breach of the same or any other
covenant of this Agreement.
12.10 VALIDITY OF AGREEMENT. In the event any provision of this Agreement,
or portion thereof, is held by a court having proper jurisdiction to be for any
reason unenforceable or invalid, the remaining provisions, or portions thereof
shall continue to exist and shall remain in full force and effect.
12.11 APPLICABLE LAW. By adoption of the parties, the State of Texas,
U.S.A. is deemed to be the place of contracting and, by agreement of the
parties, any claim or controversy relating to this Agreement, its
interpretation, performance or validity shall be construed and adjusted in
accordance with the law of said State; (except for actions in equity or
injunctive relief), the sole jurisdiction and venue for actions related to the
subject matter hereof shall be the state and U.S. federal courts having within
their jurisdiction the city of Dallas, Texas. Both parties consent to the
jurisdiction of such courts and agree that process may be served in the manner
provided herein for giving of notices or otherwise as allowed by Texas state or
U.S. federal law.
IN WITNESS WHEREOF, the parties have executed this Agreement to be effective
on the date first written above.
INFOSPINNER, INC.
<TABLE>
<S> <C>
By: ---------------------------------
Name: ---------------------------------
Title: ---------------------------------
Date: ---------------------------------
DISTRIBUTOR:
- ----------------------------------------
By: ---------------------------------
Name: ---------------------------------
Title: ---------------------------------
Date: ---------------------------------
</TABLE>
DISTRIBUTOR'S TERRITORY: Worldwide
9
<PAGE>
AN "XXX" INDICATES THAT CONFIDENTIAL MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY IN A REQUEST FOR CONFIDENTIAL TREATMENT WITH THE SECURITIES AND
EXCHANGE COMMISSION
EXHIBIT A
INFO PRODUCT LICENSE AND MAINTENANCE FEE SCHEDULE
<TABLE>
<CAPTION>
SUGGESTED
PRODUCT SUGGESTED LICENSE FEE MAINTENANCE FEE
-------------------------------- -----------------------
SINGLE CPU LIST MULTI-CPU LIST DISTRIBUTOR'S LIST
PACKAGES PRICE PRICE PRICES
- -------------------------------------------------------- --------------- --------------- -----------------------
<S> <C> <C> <C>
FORESITE................................................ $ XXX $ XXX
One PageBuilder
One PageDispatcher
One PageServer
Software Development Kit (SDK)
FORESITE ENTERPRISE..................................... $ XXX $ XXX
Two PageBuilders
Two PageDispatchers
Two PageServers
Software Development Kit (SDK)
</TABLE>
<TABLE>
<CAPTION>
SUGGESTED
PRODUCT SUGGESTED LICENSE FEE MAINTENANCE FEE
-------------------------------- -----------------------
SINGLE CPU LIST MULTI-CPU LIST DISTRIBUTOR'S LIST
OPTIONAL MODULES PRICE PRICE PRICES
- -------------------------------------------------------- --------------- --------------- -----------------------
<S> <C> <C> <C>
INTEGRATION MODULE
PageBuilder........................................... $ XXX $ XXX
EXTENSIBILITY MODULES (PRICED PER PAGESERVER)
Client/Server Extension............................... $ XXX $ XXX
3270 Extension........................................ $ XXX $ XXX
SQL Database Extension................................ $ XXX $ XXX
DEPLOYMENT MODULES
PageDispatcher........................................ $ XXX $ XXX
PageServer............................................ $ XXX $ XXX
APPLICATION MODULE
Discussion Forum...................................... $ XXX $ XXX
</TABLE>
EXAMPLE:
A customer implements a Web Commerce site that requires one Webmaster and two
end users to administer. The customer anticipates traffic that requires four
PageServers with support for SQL databases and client/server application data
sources and a spare PageDispatcher for availability.
<TABLE>
<CAPTION>
QUANTITY
---------------------------------------
SINGLE
CPU LIST MULTI- CPU
ITEM QUANTITY PRICE LIST PRICE
- ------------------------------------------------------------------------------- --------------- --------- -----------
<S> <C> <C> <C>
ForeSite Enterprise............................................................ 1 $ XXXX $ XXXX
Additional PageBuilders........................................................ 1 $ XXXX $ XXXX
Additional PageServers......................................................... 2 $ XXXX $ XXXX
SLQ Database Extension......................................................... 4 $ XXXX $ XXXX
Client/Server Extension........................................................ 4 $ XXXX $ XXXX
Total $ XXXX $ XXXX
</TABLE>
E-1
<PAGE>
AN "XXX" INDICATES THAT CONFIDENTIAL MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY IN A REQUEST FOR CONFIDENTIAL TREATMENT WITH THE SECURITIES AND
EXCHANGE COMMISSION
EXHIBIT B
ROYALTY AND MAINTENANCE FEE AND
ADVANCE RECOVERY SCHEDULE
<TABLE>
<CAPTION>
CUMULATIVE PRODUCT AND
MAINTENANCE LICENSE FEES: PRODUCT ROYALTY RATE MAINTENANCE ROYALTY RATE
- ------------------------------------------------------------------- ----------------------- ---------------------------
<S> <C> <C>
$0 and above....................................................... XX% XX%
</TABLE>
CALCULATION:
ADVANCE PAYMENT. The total amount of the Advance Payment shall be One
Million Five Hundred Thousand Dollars ($1,500,000) which shall be paid according
to the following schedule:
<TABLE>
<CAPTION>
DATE: PAYMENT AMOUNT:
- ---------------------------------------------------------------------------- ----------------
<S> <C>
Effective Date.............................................................. $ XXXXX
March 31, 1997.............................................................. $ XXXXX
June 1, 1997................................................................ $ XXXXX
September 1, 1997........................................................... $ XXXXX
December 1, 1997............................................................ $ XXXXX
March 1, 1998............................................................... $ XXXXX
</TABLE>
provided, however, Distributor shall have the right to terminate this Agreement
in addition to its termination rights under Section 11.01 if Merger as set forth
in the Agreement and Plan of Reorganization entered into between the parties as
of the Effective Date (the "Reorganization Agreement") is not consummated solely
as a result of:
i) INFO not obtaining the approval of its stockholders required under
Sections 6.1(a) or 6.3(f) of the Reorganization Agreement,
ii) INFO not delivering fully executed agreements and/or certificates
required to be executed and delivered by INFO or its officers, directors,
affiliates or employees under Sections 6.1(c) (Employment Agreements),
6.1(e) (Affiliate Agreements), 6.1(f) (Escrow Agreement), 6.3(c) (Third
Party Consents), the certificate required under Section 6.3(b) of the
Reorganization Agreement, or the legal opinion required under Section 6.3(d)
of the Reorganization Agreement; or
iii) the termination of the current employment relationship between INFO
and Keith Lowery, Andrew Levine, or Ronald Howell,
iv) any claim of infringement of patent, copyright or other intellectual
property right of a third party is asserted in writing or filed (and not
dismissed within 30 days thereafter) in a state or federal court or other
court of competent jurisdiction anywhere in the world against Distributor or
INFO with respect to the Products and which claim, in the reasonable opinion
of Distributor's counsel, has a reasonable legal basis and is based on
determinable facts, or
v) Keith Lowery has not delivered a fully executed Non-Competition
Agreement as referenced in Section 6.3 (g) of the Reorganization Agreement.
E-2
<PAGE>
AN "XXX" INDICATES THAT CONFIDENTIAL MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY IN A REQUEST FOR CONFIDENTIAL TREATMENT WITH THE SECURITIES AND
EXCHANGE COMMISSION
If Distributor exercises its right to terminate this Agreement as set forth
above, INFO shall refund all unused royalty advances to Distributor and
Distributor shall have no obligation to make additional royalty advance payments
to INFO.
ROYALTY. The royalty ("Royalty") with respect to each Product copy
distributed or maintenance agreement with Distributor initiated or renewed is
calculated by multiplying the Royalty Rate by the Suggested License Fee or
Suggested Maintenance Fee for the Product or maintenance agreement as shown on
Exhibit A.
The Advance Payment Balance is $XXXX as of the Effective Date. The Advance
Payment Balance shall be increased by the amount of each additional installment
of the Advance Payment paid to INFO and decreased by the amount of the Advance
Payment Balance credited against Distributor's Royalty payments to INFO.
Distributor's quarterly Royalty payments to INFO shall be reduced by the then
current Advance Payment Balance until such time as the current Advance Payment
Balance equals zero. When the current Advance Payment Balance equals zero, there
shall be no further reduction of any Royalty payments to INFO. Future Advance
Payments owing under this Agreement shall be reduced by any Royalty payments
paid and not credited against an available Advance Payment Balance.
E-3
<PAGE>
EXHIBIT C
TRADEMARKS
INFO has applications for trademarks pending with the United States Patent
and Trademark Office ("PTO") on the following, all of which have been
acknowledged as received by the PTO. The PTO has not yet examined the
applications or taken action thereon.
1. PAGEBUILDER
2. PAGESERVER
3. PAGEMONITOR
4. PAGETESTER
5. FORESITE
6. DYNABOT
7. PAGEDISPATCHER
8. PAGEADAPTOR
E-4
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> MAR-31-1997
<CASH> 4,263
<SECURITIES> 1,565
<RECEIVABLES> 12,304
<ALLOWANCES> 2,780
<INVENTORY> 81
<CURRENT-ASSETS> 18,841
<PP&E> 19,055
<DEPRECIATION> 15,681
<TOTAL-ASSETS> 29,131
<CURRENT-LIABILITIES> 29,062
<BONDS> 10,000
0
0
<COMMON> 69,671
<OTHER-SE> (81,950)
<TOTAL-LIABILITY-AND-EQUITY> 29,131
<SALES> 9,514
<TOTAL-REVENUES> 13,600
<CGS> 1,366
<TOTAL-COSTS> 3,485
<OTHER-EXPENSES> 11,280
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 214
<INCOME-PRETAX> (2,055)
<INCOME-TAX> 10
<INCOME-CONTINUING> (2,065)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (2,065)
<EPS-PRIMARY> (.14)
<EPS-DILUTED> (.14)
</TABLE>
