<PAGE>
U.S. Securities and Exchange Commission
Washington, D.C. 20549
Form 10-QSB
(Mark One)
[X] QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended July 31, 1997
------------------------------------------
[_] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Commission file number 0-24454
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Wave Technologies International, Inc.
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(Exact name of small business issuer as specified in its charter)
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<S> <C>
Missouri 43-1481443
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(State or other jurisdiction of incorporation or organization) (IRS Employer ID No.)
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10845 Olive Boulevard, Suite 250, Saint Louis, Missouri 63141
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(Address of principal executive offices)
(314) 995-5767
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(Issuer's telephone number)
n/a
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(Former name, former address and former fiscal year, if changed since last
report)
Check whether the issuer (1) filed all the reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 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
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APPLICABLE ONLY TO CORPORATE ISSUERS
State the number of shares outstanding of each of the issuer's classes of common
equity, as of the latest practicable date: The issuer had 3,959,942 shares of
common stock, par value $.50,
outstanding as of September 8,
1997
-----------------------------------
Transitional Small Business Disclosure Format (check one): Yes No X
--- ---
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WAVE TECHNOLOGIES INTERNATIONAL, INC.
Table of Contents
Form 10-Q for the Quarterly Period
Ended July 31, 1997
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PART I FINANCIAL INFORMATION Page
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Item 1. Financial Statements (Unaudited)
Consolidated Balance Sheets at July 31, 1997,
and April 30, 1997 3
Consolidated Statements of Operations for the
three months ended July 31, 1997 and 1996 4
Consolidated Statements of Cash Flows for the
three months ended July 31, 1997 and 1996 5
Notes to Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis or Plan of Operation 7
PART II OTHER INFORMATION
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Item 6. Exhibits and Reports on Form 8-K 11
SIGNATURES
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WAVE TECHNOLOGIES INTERNATIONAL, INC.
CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
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<CAPTION>
April 30 July 31
1997 1997
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ASSETS
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Current assets:
Cash and cash equivalents $ 948,280 $ 993,177
Accounts receivable (less allowance of $446,000 and
$416,000, respectively) 7,107,651 5,321,605
Inventory 785,011 867,150
Prepaid expenses 475,949 665,604
Other current assets 169,305 169,305
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Total current assets 9,486,196 8,016,841
Property, plant & equipment - net 3,956,964 4,083,057
Prepaid direct mail cost 558,025 474,385
Deferred courseware 1,653,993 1,921,840
Other assets 839,348 1,066,401
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Total assets $16,494,526 $15,562,524
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LIABILITIES AND SHAREHOLDERS' EQUITY
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Current liabilities:
Accounts payable $ 2,489,814 $ 2,362,450
Accrued expenses 1,408,946 1,461,599
Deferred revenue 4,098,761 3,277,615
Bank line-of-credit - 445,000
Current portion of long-term debt and capital lease obligations
Related party 280,099 252,418
Other 76,451 72,445
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Total current liabilities 8,354,071 7,871,527
Long-term debt
Related party 147,020 114,980
Other 94,766 79,604
Accrued rent liability 297,987 233,584
Common shareholders' equity:
Common stock, $.50 par value, authorized 20,000,000 shares;
issued, 3,933,459 and 3,959,942 shares; outstanding, 3,926,102
and 3,952,585 shares 1,966,729 1,979,971
Additional paid-in capital 7,038,285 7,105,656
Accumulated deficit (1,468,461) (1,917,645)
Cumulative translation adjustment 78,827 109,545
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Total 7,615,380 7,277,527
Less treasury stock, at cost (7,357 shares) (14,698) (14,698)
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Total common shareholders' equity 7,600,682 7,262,829
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Total liabilities and shareholders' equity $16,494,526 $15,562,524
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WAVE TECHNOLOGIES INTERNATIONAL, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
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Three Months Ended
July 31
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1996 1997
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Revenues:
Publishing $ 2,794,175 $ 3,438,520
Instructor-led training 2,402,484 2,917,024
Custom Solutions 1,470,381 1,508,393
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Total revenues 6,667,040 7,863,937
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Cost and Expenses:
Cost of services, products and development 3,283,105 4,467,684
Sales and marketing 1,725,427 2,225,168
General and administrative 1,418,512 1,846,197
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Total costs and expenses 6,427,044 8,539,049
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Income/(loss) from Operations 239,996 (675,112)
Other income/(expenses) - net (22,351) (14,072)
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Income/(loss) before tax 217,645 (689,184)
Provision for income taxes - (240,000)
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Net Income/(loss) $ 217,645 $ (449,184)
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Net income/(loss) per common shares $ 0.06 $ (0.11)
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Weighted average common shares 3,951,559 3,946,700
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WAVE TECHNOLOGIES INTERNATIONAL, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
THREE MONTHS ENDED JULY 31
(UNAUDITED)
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1996 1997
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CASH FLOWS FROM OPERATING ACTIVITIES:
Net income/(loss) $ 217,645 $ (449,184)
Adjustments to reconcile net income/(loss) to net cash
used in operating activities
Depreciation and amortization 410,620 583,800
Barter activity (104,651) (68,488)
Deferred Tax Credit - -
Loss on disposal of capital assets 108 -
Other 17,617 30,716
Net changes in other assets and liabilities:
Accounts receivable 228,188 1,786,046
Inventory (31) (82,139)
Other current assets 12,655 (189,655)
Prepaid direct mail (35,082) 83,640
Deferred courseware 1,625 (267,847)
Other assets (4,246) (270,756)
Accounts payable (74,857) (127,363)
Accrued expenses 58,447 52,653
Deferred charges (241,400) (885,549)
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Net cash from (used) in operating activities 486,638 195,874
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CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (110,286) (597,703)
Disposal of capital equipment 1,712 -
Acquisition of ETI, Inc. - -
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Net cash used in investing activities (108,574) (597,703)
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CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of common stock - net - 80,613
Proceeds from borrowings under line of credit - net (228,000) 445,000
Proceeds from term loan - -
Repayments of notes payable (55,303) (59,719)
Payments of capital lease obligations (7,918) (19,168)
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Net cash provided by financing activities (291,221) 446,726
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NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 86,843 44,897
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 747,064 948,280
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CASH AND CASH EQUIVALENTS, END OF PERIOD $ 833,907 $ 993,177
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</TABLE>
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE I. - GENERAL
The financial information herein is unaudited. However, in the opinion of
management, such information reflects all adjustments (consisting only of normal
recurring accruals) necessary for a fair presentation of the results of
operation for the period being reported. Additionally, it should be noted that
the accompanying condensed consolidated financial statements do not purport to
contain complete disclosures in conformity with generally accepted accounting
principles.
The results of operations for the three months ended July 31, 1997, are not
necessarily indicative of the results of operations for the full year.
These condensed consolidated financial statements should be read in conjunction
with the Company's consolidated financial statements for the year ended April
30, 1997, and the notes thereto.
The Company has reclassified certain 1997 fiscal year accounts to conform to
current year presentation.
NOTE II. - DEBT
On January 5, 1996, the Company issued a three-year term note to a bank in the
amount of $600,000, bearing interest at 9.25% per year, secured by certain of
Wave's equipment. The Company's operating line of credit of is with the same
bank, and was increased from $2,000,000 to $2,500,000 effective September 1,
1997. It bears interest at the bank's prime rate and is secured by the
Company's accounts receivable, inventory and equipment. The Chairman of the
Board of the bank is a member of the Board of Directors of the Company.
NOTE III. - EARNINGS PER SHARE
Net income per common share is computed by dividing net income by the weighted
average number of shares of common stock and common share equivalents. The
earnings per share calculation for fiscal 1997 included dilutive stock options
along with the average number of common shares outstanding. For the first
quarter of fiscal 1998, such potentially dilutive securities have not been
included in the calculation as a result of their anti-dilutive effect.
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Item 2. Management's Discussion and Analysis or Plan of Operations.
Overview
The Company designs, develops and delivers technical training programs
addressing data communications, networking, Internet/Intranet and client/server
computing technologies. Wave provides both self-study and instructor-led
programs. By integrating these delivery formats and providing on-line distance
learning support, the Company believes it has a unique and highly effective
approach.
Three Months Ended July 31, 1997 Compared To
Three Months Ended July 31, 1996
Total revenues increased $1,197,000, or 18%, in the quarter ended July 31,
1997, to $7,864,000 from $6,667,000 in the same quarter in fiscal 1997.
International revenues accounted for approximately 23% of Wave's total revenues
in the quarter ended July 31, 1997, compared to 19% in the same quarter in
fiscal 1997.
Publishing revenues increased $644,000, or 23%, from $2,794,000 for the
fiscal 1997 quarter to $3,439,000, and increased slightly as a percentage of
total revenues to 44% from 42% in the same quarter in fiscal 1997. Although
publishing revenues increased compared to the comparable quarter in the prior
fiscal year, the Company's publishing revenues decreased from levels in the last
quarter of 1997, partially as the result of slower sales in anticipation of
Wave's release of new versions of its Microsoft products.
Instructor-led training ("ILT") revenues increased to $2,917,000 from
$2,402,000 in the same quarter in fiscal 1997, and increased slightly as a
percentage of total revenues to 37%, compared to 36% in the same quarter of the
prior year. Domestic ILT revenues increased $363,000, or 22%, and international
ILT revenues increased $152,000, or 20%, as Wave's London training center
operated at capacity. The Company opened a second London facility in September
of 1997, but has no current plans to open additional centers domestically or
internationally.
Custom solutions revenues increased only slightly, by 3%, from the same
period in fiscal 1997, and decreased as a percentage of total revenues to 19%,
compared to 22% in the first quarter of fiscal 1997. Custom solutions
revenues for the first quarter of fiscal 1997 included $551,000 of revenues from
GTE University, compared to only $400,000 of revenues from GTE University in the
first quarter of fiscal 1998. Custom solutions revenues in any particular
quarter can be significantly affected by the timing of such services.
Cost of services, products and development increased $1,185,000, or 36%, in
the quarter ended July 31, 1997, to $4,468,000, and increased as a percentage of
total revenues to 57% from 49% in the same quarter in fiscal 1997. Domestic
cost of services, products and development increased by $949,000, or 33%, while
cost of services for international operations increased $236,000 or 64%,
primarily to support continued growth in international operations and revenues.
Salaries, commissions, and related payroll costs represented the most
significant increase, of $522,000, including a $71,000 increase in international
payroll costs, for additional personnel to support continued growth. Temporary
labor costs also increased significantly, as Wave used outside contractors on
several Custom solutions projects. International production and shipping costs
increased 36% compared to the same period in the prior year, while total
production and shipping costs increased $313,000, or 52%, for increased product
sales and to purchase third-party products for use in an ILT curriculum.
Depreciation expense for the quarter increased $52,000, or 39%, reflecting
additional equipment purchases over the past year. Amortization of courseware
development expenses increased by $49,000, while the capitalization of
courseware development expenses, which reduces cost of services, increased by
$129,000.
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Total sales and marketing expenses for the quarter ended July 31, 1997,
increased $500,000, or 29%, to $2,225,000, from the same quarter in fiscal 1997,
and increased as a percentage of total revenues, to 28% from 26%. Supporting
continued growth in international sales, international sales and marketing
expenses increased by $126,000, or 33%. Total sales and marketing payroll
expenses increased by $200,000, including a $107,000 increase in international
sales and marketing payroll costs for increased sales staff to support
international growth and the opening of Wave's additional London training
facility in September of 1997. Direct mail expenses, which are capitalized and
amortized over six months, increased $137,000 over the same period last year,
and included a $34,000, or 89%, increase in international direct mail expense.
Advertising and promotional expenses also increased $110,000 or 110%, related to
promotions of Wave's Technical Solutions Workshop product offerings.
General and administrative expenses increased $428,000, or 30%, to
$1,846,000 for the first quarter of fiscal 1998, and increased as a percentage
of total revenues to 23% from 21%. Depreciation expense represented the largest
increase, $119,000, or 50%, as the result of the addition of new equipment.
Telephone expense increased $63,000, or 42%, primarily for expanded data
services to the Company's training centers. The Company also incurred an
additional $37,000, compared to the same period in fiscal 1997, for personnel
recruiting costs related to continued expansion of its direct sales force.
The Company recognized a net loss of $449,000, or $.11 per share, for the
first quarter of fiscal 1998, compared to net income of $218,000, or $.06 per
share for the quarter ended July 31, 1996. During the quarter, Wave incurred
expenses at budgeted levels, comparable to levels in the fourth quarter of
fiscal 1997. The shortfall in revenues from planned levels and from the prior
quarter, resulted in the loss. The revenue variance related solely to
publishing sales, primarily in Wave's Microsoft NT curriculum. Two factors
contributed to the shortfall. The Company was unable to recognize initial
licensing fees from a significant contract with IBM during the quarter ended
July 31, 1997. Wave is introducing a new version of its MCSE self-study
curriculum, its most significant product line, in September of 1997. As a
result, the Company reduced end of quarter sales of those products to its
distribution channel, and also significantly reduced advertising and marketing
of its Microsoft products from the last quarter of fiscal 1997.
Liquidity and Capital Resources
The Company's net cash balance at July 31, 1997, was $993,000, compared to
$948,000 at April 30, 1997. Total accounts receivable decreased significantly,
by $1,786,000, to $5,322,000 at July 31, 1997, as the Company collected amounts
billed in fiscal 1997, and those amounts were not entirely replaced by sales in
the first quarter of fiscal 1998. Wave also reduced accounts payable, by
$128,000, from $2,490,000 at April 30, 1997 to $2,362,000 at July 31, 1997.
Prepaid expenses increased $190,000, or 40%, at July 31, 1997, compared to the
end of fiscal 1997, as Wave paid federal alternative minimum tax with its fiscal
1997 tax return extension.
Prepaid direct mail decreased by $84,000, to $474,000 at July 31, 1997.
While prepaid advertising appears as an asset on the balance sheet, that amount
will be expensed over the following six months. Similarly, deferred revenue is
booked as a liability, but the $3,278,000 in deferred revenue at July 31, 1997,
will be recognized as revenues over the next twelve months. This amount
represents an $821,000 decrease in deferred revenue from the fiscal year end as
Wave recognized more deferred revenue during the quarter than it replaced.
In September of 1997, the Company increased its existing line of credit by
$500,000, to $2,500,000. See Note II of Notes to Consolidated Financial
Statements. Wave had drawn $445,000 on the line of credit at quarter end,
compared to no balance at the end of fiscal 1997. The Company had overnight
borrowing balances on the line 37 times during the first quarter of fiscal 1997,
compared to 11 times during the same quarter in fiscal 1997.
Wave believes that cash generated from operations, together with existing
cash balances, additional planned equipment leases and its available credit
line, should be sufficient to satisfy the Company's cash requirements for the
next several months.
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<PAGE>
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits:
3.1 Articles of Incorporation, as amended and restated (filed as
Exhibit 3.1 to Registrant's Registration Statement on Form SB-2
(File No. 33-80556) and incorporated herein by reference, as
amended)
3.2 Restated Bylaws (filed as Exhibit 3.2 to Registrant's Annual
Report on Form 10-KSB for the fiscal year ended April 30, 1997,
and incorporated herein by reference)
4.1 Specimen Stock Certificate (filed as Exhibit 4.1 to
Registrant's Registration Statement on Form SB-2 (File No.
33-80556) and incorporated herein by reference)
4.2 Warrant Agreement, including Form of Representatives' Warrant
(filed as Exhibit 4.2 to Registrant's Registration Statement on
Form SB-2 (File No. 33-80556) and incorporated herein by
reference)
10.1 Employment dated June 25, 1997, between the Company
and J. Michael Bowles (filed as Exhibit 10.1 to Registrant's
Annual Report on Form 10-KSB for the fiscal year ended April
30, 1997, and incorporated herein by reference)
10.2 Service Agreement dated June 1, 1994, by and between the
Company and John A. Kirkham (filed as Exhibit 10.2 to
Registrant's Registration Statement on Form SB-2 (File No.
33-80556) and incorporated herein by reference)
10.3 Amended and Restated 1993 Stock Option Plan (filed as Exhibit
10.3 to Registrant's Registration Statement on Form SB-2 (File
No. 33-80556) and incorporated herein by reference)
10.4 Wave Technologies International, Inc. Outside Directors Stock
Option Plan (filed as Exhibit 10.4 to Registrant's annual
report on Form 10-KSB for the fiscal year ended April 30, 1995,
and incorporated herein by reference)
10.5 Distribution Agreement between the Company and Ingram Micro,
Inc., dated April 19, 1996 (filed as Exhibit 10.8 to
Registrant's annual report on Form 10-KSB for the fiscal year
ended April 30, 1995, and incorporated herein by reference)
10.6 Stock Purchase Agreement between the Company and Radnor Venture
Partners, L.P. (filed as Exhibit 10.9 to Registrant's
Registration Statement on Form SB-2 (File No. 33-80556) and
incorporated herein by reference)
10.7 Agreement between the Company and Radnor Venture Partners,
L.P., dated April 30, 1994 (filed as Exhibit 10.10 to
Registrant's Registration Statement on Form SB-2 (File No.
33-80556) and incorporated herein by reference)
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10.8 Amendment Agreement between the Company and Radnor Venture Partners,
L.P., dated May 31, 1994 (filed as Exhibit 10.11 to Registrant's
Registration Statement on Form SB-2 (File No. 33-80556) and
incorporated herein by reference)
10.9 $2,000,000 Line of Credit Note to Commerce Bank, National Association,
dated September 1, 1996 (filed as Exhibit 10.9 to Registrant's
Quarterly Report on Form 10-QSB for the quarter ended October 31, 1996
and incorporated herein by reference)
10.10 General Loan and Security Agreement between Commerce Bank, National
Association, and the Company, dated as of August 31, 1995 (filed as
Exhibit 10.15 to Registrant's Quarterly Report on Form 10Q-SB for the
quarter ended October 31, 1995, and incorporated herein by reference)
10.11 First Amendment to General Loan and Security Agreement, dated as of
January 5, 1996, between the Company and Commerce Bank, National
Association (filed as Exhibit 10.13 to Registrant's Quarterly Report
on Form 10-QSB for the quarter ended January 31, 1996, and
incorporated herein by reference)
10.12 $600,000 Note dated January 5, 1996, to Commerce Bank, National
Association (filed as Exhibit 10.14 to Registrant's Quarterly Report
on Form 10Q-SB for the quarter ended January 31, 1996 and incorporated
herein by reference)
10.13 Wave Technologies International, Inc. 1995 Stock Option Plan (filed as
Exhibit 4.3 to Registrant's Registration Statement on Form S-8 (File
No. 33-98462) and incorporated herein by reference)
10.14 Second Amendment to General Loan and Security Agreement between the
Company and Commerce Bank, National Association, dated as of September
1, 1996 (filed as Exhibit 10.13 to Registrant's Quarterly Report on
Form 10-QSB for the quarter ended October 31, 1996, and incorporated
herein by reference)
10.16 Waveware License Agreement between the Company and SHL Systemhouse
Corp., dated as of January 30, 1996 (filed as Exhibit 10.19 to
Registrant's Quarterly Report on Form 10Q-SB for the quarter ended
January 31, 1996 and incorporated herein by reference)
10.17 Courseware License Agreement effective as of July 31, 1997, between
the Company and International Business Machines Corporation
(b) Reports on Form 8-K - The registrant did not file any reports on Form 8-K
during the fiscal quarter ended July 31, 1997.
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SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant caused
this report to be signed on its behalf by the undersigned thereunto duly
authorized.
Wave Technologies International, Inc.
Dated: September 12, 1997 By: J. Michael Bowles
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J. Michael Bowles, Chief Financial Officer
Principal Accounting and
Financial Officer and Duly Authorized Officer)
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Courseware License Agreement
Agreement Number: ET-970801-DF
**Indicates that a portion of the document is confidential and has been omitted
and filed separately with the Securities and Exchange Commission in connection
with a request for confidential treatment of such omitted material.
This Agreement effective as of July 31, 1997 ("Effective Date") is between Wave
Technologies International, Inc. ("WAVE") with an address at 10845 Olive
Boulevard, Suite 250, St. Louis, MO 63141, and International Business Machines
Corporation ("IBM") with an address at 1500 RiverEdge Parkway, Atlanta, GA
30328. Under this Agreement, IBM licenses from WAVE training course(s) known as
Microsoft Networking/MSCE (Microsoft Certified Systems Engineer) Self-Study
Program, Release 4.0 and Microsoft Networking/MSCE instructor led training
materials.
By signing below, the parties agree to the terms of this Agreement. The
complete Agreement between the parties regarding this transaction consists of
this License Agreement and the following Attachments:
1. "Description of Licensed Work(s);"
2. "Schedule;"
3. "Travel Expense Reimbursement;
4. "Maintenance and Product Support;" and
5. "Certificate of Originality."
The following are related agreements between the parties:
1. Courseware Remarketing Agreement No: T97262-00; and
2. IBM Agreement for Exchange of Confidential Information.
This Agreement replaces all prior oral or written communications between the
parties relating to the subject matter. Once signed, any reproduction of this
Agreement made by reliable means (for example, photocopy or facsimile) is
considered an original, unless prohibited by local law.
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
International Business Machines Wave Technologies International,
Corporation Inc.
By: /s/ T.W. Cook for John Farrell By: /s/ Kenneth W. Kousky
------------------------------- -------------------------------
Authorized Signature Authorized Signature
Name: T.W. Cook for John Farrell Name: Kenneth W. Kousky
----------------------------- -----------------------------
Type or Print Type or Print
<PAGE>
Title:________________________________ Title: CEO
---------------------------
Date: 9/3/97 Date: 9/3/97
-------------------------------- ----------------------------
1.0 DEFINITIONS
Capitalized terms in the Agreement have the following meanings.
1.1. Classroom Materials is that Licensed Work further defined in the
Attachment: Description of Licensed Works.
1.2. Code is computer programming code, including both Object Code and Source
Code.
a. Object Code is Code substantially in binary form, and includes header
files of the type necessary for use or interoperation with other
computer programs. It is directly executable by a computer after
processing or linking, but without compilation or assembly. Object
Code is all Code other than Source Code.
b. Source Code is Code in a form which when printed out or displayed is
readable and understandable by a programmer of ordinary skills. It
includes related source code level system documentation, comments and
procedural code. Source Code does not include Object Code.
1.3. Deliverable is any item that WAVE provides under this Agreement.
1.4. Derivative Work is a work that is based on an underlying work and that
would be a copyright infringement if prepared without the authorization of
the copyright owners of the underlying work. Derivative Works are subject
to the ownership rights and licenses of a party or of others in the
underlying work.
1.5. Enhancements are changes or additions, other than Error Corrections, to the
Licensed Work.
a. Basic Enhancements are all Enhancements, other than Major
Enhancements, including those that support new releases of operating
systems, devices, or other components of the operating environment.
b. Major Enhancements provide substantial additional value and are
provided to WAVE's existing customers for an additional charge.
1.6. Error Corrections are revisions that correct errors and deficiencies
(collectively referred to as "errors") in the Licensed Work.
1.7. Externals are (1) any pictorial, graphic, and audiovisual works (such as
icons, screens, sounds, and characters) generated by execution of Code
which are not part of
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the educational content of the Product, and (2) any programming
interfaces, languages or protocols implemented in Code to enable
interaction with other computer programs or the end user. Externals do not
include the Code that implements them.
1.8. IBM Internal Use is use by IBM's employees, contractors providing services
to IBM under contract, IBM Business Partners, or others providing IBM
assistance in its marketing or delivery channels. However, IBM or other
sublicensees may not charge such contractors, Business Partners, or others
for the Products. For the purposes of this paragraph, references to IBM
also include IBM Subsidiaries.
1.9. Licensed Work is (1) any material described in or that conforms to the
description in the Attachment: Description of Licensed Works, or that is
delivered to IBM as a Licensed Work, including (but not limited to) Code,
associated documentation, and Externals, (2) Error Corrections and
Enhancements, and 3) any non-English translations of the Licensed Works
owned or licensable at no cost to WAVE.
1.10. Moral Rights are personal rights associated with authorship of a work
under applicable law. They include the rights to approve modifications and
to require authorship identification.
1.11. Product is an offering to customers or other users, whether or not branded
by IBM or its Subsidiaries, that includes a Licensed Work or a Derivative
Work of a Licensed Work.
1.12. Self-Study Kit is that Licensed Work further defined in the Attachment:
Description of Licensed Works.
1.13. Source Materials are all materials reasonably necessary for IBM to
efficiently manufacture, produce, maintain and enhance the Licensed Works.
Examples of Source Materials include, but are not limited to, Source Code,
camera ready masters, data files created or used by Tools (for example **
or **).
1.14. Subsidiary is an entity during the time that more than 50% of its voting
stock is owned or controlled, directly or indirectly, by another entity.
If there is no voting stock, a Subsidiary is an entity during the time
that more than 50% of its decision-making power is controlled, directly or
indirectly, by another entity.
1.15. Tools include devices, compilers, programming, documentation, media and
other items required for the development, maintenance or implementation of
a Deliverable that are not commercially available.
2.0 RESPONSIBILITIES OF WAVE
2.1. WAVE will provide the following Deliverables to IBM:
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a. one complete set of each Licensed Work described in the Attachment:
Description of Licensed Works, and any Source Materials,
documentation, Code or Tools. All such source materials and Tools
will be deposited and delivered on CD-ROM. Such source materials will
also be delivered with each Enhancement;
b. Tools. The Tools for the Licensed Works are identified below.
<TABLE>
<CAPTION>
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Version/
Description Release Owner
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<S> <C> <C>
Challenge! Interactive:
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** WAVE
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** WAVE
================================================================================
</TABLE>
WAVE will deliver the Tools to IBM no later than sixty (60) days from
the Effective Date. WAVE will provide an updated written list to IBM
for all changes and promptly deliver updated Tools to IBM;
c. any updates to the following list. This list identifies any
commercially available devices, compilers, programming, documentation,
media and other items required for the development, maintenance or
implementation of a Deliverable:
<TABLE>
<CAPTION>
================================================================================
Version/
Description Release Owner
- --------------------------------------------------------------------------------
<S> <C> <C>
Challenge! Interactive:
- --------------------------------------------------------------------------------
** 4 & 5 **
- --------------------------------------------------------------------------------
** 4 **
- --------------------------------------------------------------------------------
** 3 **
- --------------------------------------------------------------------------------
** 5 **
- --------------------------------------------------------------------------------
** 4 **
- --------------------------------------------------------------------------------
** 2.0 **
- --------------------------------------------------------------------------------
</TABLE>
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<PAGE>
- -------------------------------------------------------------------------------
** 5 **
- -------------------------------------------------------------------------------
** 2.0 **
- -------------------------------------------------------------------------------
**
- -------------------------------------------------------------------------------
Simulation:
- -------------------------------------------------------------------------------
** **
- -------------------------------------------------------------------------------
** **
- -------------------------------------------------------------------------------
** 3.5 **
- -------------------------------------------------------------------------------
** **
- -------------------------------------------------------------------------------
** 4 **
- -------------------------------------------------------------------------------
** 5.0 **
- -------------------------------------------------------------------------------
** 7.0 **
- -------------------------------------------------------------------------------
** 4 **
- -------------------------------------------------------------------------------
** **
- -------------------------------------------------------------------------------
** **
- -------------------------------------------------------------------------------
** 5 **
- -------------------------------------------------------------------------------
** 2.0 **
- -------------------------------------------------------------------------------
Videos:
- -------------------------------------------------------------------------------
** 1.19 **
- -------------------------------------------------------------------------------
** 2.52 **
- -------------------------------------------------------------------------------
** 7.0 **
- -------------------------------------------------------------------------------
** 2.5 **
- -------------------------------------------------------------------------------
** **
- -------------------------------------------------------------------------------
Printed Books:
- -------------------------------------------------------------------------------
** 7.0 **
- ------------------------------------------------------------------------------
** 4 **
- -------------------------------------------------------------------------------
** 4 **
- -------------------------------------------------------------------------------
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<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
- --------------------------------------------------------------------------------
Chat Sessions:
** 2.0 **
- --------------------------------------------------------------------------------
** 2.0 **
================================================================================
</TABLE>
WAVE's delivery obligations for Tools does not apply to the items
listed in this chart;
d. a completed certificate of originality with the Licensed Works, and
with each Enhancement to a Licensed Work, in the form specified in the
Attachment: Certificate of Originality. IBM may suspend payments to
WAVE for the Licensed Work(s) if WAVE does not provide a properly
completed certificate. Payment will resume after IBM receives and
accepts the certificate.
2.2 For the term of this Agreement, WAVE will, ** provide to IBM maintenance
and Product support for the Licensed Works and Products, as described the
Attachment: Maintenance and Product Support.
2.3. During the term of this Agreement, WAVE will:
a. provide to IBM, ** all Basic Enhancements and Error Corrections for
the Licensed Works;
b. at IBM's option, provide all Major Enhancements for the Classroom
Materials at the price specified in Section 4 of this Agreement; and
c. provide to IBM, ** all Major Enhancements for the Self-Study Kit.
Thereafter, and continuing for five (5) years, WAVE will offer to IBM,
within 30 days after general availability, all Major Enhancements to the
Classroom Materials that WAVE creates or authorizes others to create. Such
Major Enhancements will, at IBM's option, be provided at the price
specified in Section 4 of this Agreement. WAVE will make such Major
Enhancements available to IBM under terms and conditions no less favorable
than those WAVE offers anyone else.
2.4. WAVE will:
Page 6 of 22
<PAGE>
a. participate in progress reviews, as requested by IBM, to demonstrate
WAVE's performance of WAVE's obligations;
b. conduct three (3) skills transfer "Teach The Teacher" (T3) classes at
a dates and locations to be determined by IBM. These classes will
provide the information and instruction needed for IBM personnel to
conduct classes using the Classroom Materials. IBM will reimburse
WAVE's travel expenses pursuant to the Attachment: Travel Expense
Reimbursement;
c. at IBM's option, provide Additional Support Services for each
individual end-user registered by IBM with WAVE. WAVE is obligated to
provide additional Support Services only in English. WAVE provided
Additional Support Services include:
1) telephone, email, bulletin board, and other ongoing tutorial
services provided to address questions regarding the subject
matter covered in the Products;
2) chat sessions. WAVE will schedule one chat session for every two
Self-Study Kits registered by IBM for Additional Support
Services. Any required chat session software will be provided
with each Self-Study Kit. Chat sessions will be conducted live
as scheduled and last a maximum of two (2) hours. Chat sessions
can be canceled after 30 minutes of non-attendance by IBM
students and WAVE's obligation will be considered discharged.
Except for chat sessions canceled for non-attendance by IBM
students as provided in the paragraph above, WAVE will pay IBM a
penalty of ** for each chat session canceled or rescheduled by
WAVE. IBM may, at its option, require additional chat sessions;
and
3) initial welcome calls. WAVE will call each end-user within 24
hours of IBM's registration of such end-user for Additional
Support Services.
d. provide up to four half-day enhancements to the Licensed Works
addressing differentiating topics. These topics will be chosen by IBM
at a later date and may include OS/2 Integration, SNA Services (other
than Microsoft SNA Server) and other related topics. The four half-
day segments will correspond to approximately five hours of self-study
materials and will incorporate both WAVE's expertise as well as IBM
support. This work will consist of no more than 80 hours of
development time and all compensation for this effort is included the
payments specified in Section 4.0 of the Agreement entitled Payment.
If WAVE determines that the work specified by IBM cannot be completed
in 80 hours, it will immediately notify IBM and provide IBM with
Page 7 of 22
<PAGE>
the estimated hours and costs to complete such work. WAVE will not
exceed the 80 hours limit without IBM's written approval and a
supporting IBM purchase order. WAVE's hourly rate to complete such
work will not exceed ** per hour;
e. deliver to IBM a Major Enhancement to the Licensed Works within thirty
(30) days of the generally availability of a new release/version of
the Microsoft software products covered in the Licensed Works (for
example a new release/version of Windows NT). WAVE's failure to meet
this obligation is a material breach of this Agreement. In addition
to other remedies provided in this Agreement and at law, WAVE will pay
IBM a penalty ** per day until such Major Enhancement is delivered to
IBM;
f. notify IBM ninety (90) days in advance of any Enhancement which
changes the supported operating environment of the Licensed Works;
g. implement a process designed to help prevent contamination by harmful
code. WAVE will provide IBM notice if WAVE suspects contamination;
h. have agreements with WAVE's personnel and third parties to perform
obligations and to grant or assign rights to IBM as required by this
Agreement. On request, WAVE will provide IBM with evidence of these
agreements;
i. obtain a written agreement not to assert any Moral Rights from any
person or entity having Moral Rights in the Licensed Works. WAVE
agrees not to assert any Moral Rights in the Licensed Works;
j. obtain all necessary consents of individuals or entities required for
the use of names, likenesses, voices, and the like in the Licensed
Works;
k. maintain records to verify authorship of the Licensed Works for 4
years after the termination or expiration of this Agreement. On
request, WAVE will deliver or otherwise make available this
information in a form specified by IBM;
l. provide IBM with financial information about WAVE's business relevant
to WAVE's performance under this Agreement on request. So long as
WAVE is subject to the reporting requirements of the Security and
Exchange Commission, the financial information made available to the
public in connection with those reporting requirements shall be deemed
to satisfy this requirement. In addition, both parties will provide
the other with relevant information concerning transactions under this
Agreement;
Page 8 of 22
<PAGE>
m. except pursuant to a sale of substantially all of its assets, or a
merger or similar transaction, not assign or transfer this Agreement
or WAVE's rights under it, or delegate or subcontract WAVE's
obligations, without IBM's prior written consent. Any attempt to do
so is void;
n. except as required by law, not provide any information to the media,
or issue any press releases or other publicity, regarding this
Agreement or the parties' relationship under it, without IBM's prior
written consent; and
o. not disclose to any third party the terms of this Agreement (except
those terms which become public knowledge through no fault of WAVE),
without IBM's prior written consent. WAVE may, however, make such
disclosures (i) to its accountants, lawyers or other professional
advisors provided that any such advisor is under a confidentiality
obligation and (ii) as required by law provided WAVE obtains any
confidentiality treatment for it which is available.
2.5 WAVE acknowledges that if it does not deliver the Licensed Works, IBM will
suffer irreparable harm and will be entitled to all equitable remedies,
including specific performance for the delivery of such Licensed Works.
2.6 WAVE represents and warrants that 1) it will obtain ** within 120 days of
general availability of the relevant Enhancement, and 2) the Licensed Works
conform to WAVE's marketing materials and specifications including the
specified operating environments.
Derivative Works of the Self-Study Kit, other than those prepared by WAVE,
are not authorized to use any ** trademark under this Agreement.
3.0 LICENSE
3.1 Subject to the limitations specified in Subsection 3.8 below, WAVE grants
IBM a nonexclusive, worldwide, perpetual, irrevocable license to prepare
Derivative Works of the Licensed Works, and to use, execute, reproduce,
display, perform, transfer, distribute and sublicense the Licensed Works
and such Derivative Works, in any medium or distribution technology
whatsoever, whether known or unknown. Subject to the limitations specified
in Subsection 3.8 below, WAVE grants IBM the right to authorize or
sublicense others to exercise any of the rights granted to IBM in this
Section.
3.2 Subject to the limitations specified in Subsection 3.8 below, WAVE grants
IBM a nonexclusive, worldwide, perpetual, irrevocable, paid-up license to
prepare Derivative Works of the Tools, and to use, execute, reproduce,
display, perform, and distribute for IBM Internal Use the Tools and such
Derivative Works, in any medium or
Page 9 of 22
<PAGE>
distribution technology whatsoever, whether known or unknown. Subject to
the limitations specified in Subsection 3.8 below, the rights and licenses
granted by WAVE to IBM hereunder include the right of IBM to authorize or
sublicense its Subsidiaries, contractors, and consultants to exercise any
of the rights granted to IBM in this Section.
3.3 Subject to the limitations specified in Subsection 3.8 below, the grant of
rights and licenses to the Licensed Works and Tools includes a
nonexclusive, worldwide, perpetual, irrevocable, paid-up license under any
patents and patent applications that are owned or licensable by WAVE now or
in the future and are (1) required to make, have made, use and have used
the Licensed Works or its Derivative Works or (2) required to license or
transfer the Licensed Works or its Derivative Works. This license applies
to the Licensed Works and its Derivative Works operating alone or in
combination with equipment or Code. Subject to the limitations specified
in Subsection 3.8 below, the license scope is to make, have made, use, have
used, sell, license or transfer items, and to practice and have practiced
methods, to the extent required to exercise the rights granted hereunder to
the Licensed Works and Tools.
3.4 Subject to WAVE's ownership of the Licensed Works and Tools, IBM will own
any Derivative Works it creates.
3.5 WAVE grants IBM a nonexclusive, worldwide, perpetual, irrevocable, paid-up
license to use the names and trademarks WAVE uses to identify the Licensed
Works for IBM's marketing of the Licensed Works and its Derivative Works.
WAVE grants IBM the right to authorize or sublicense others to exercise any
of the rights granted to IBM in this Section. If IBM or IBM sublicensees
prepare or manufacture a Product which bears a WAVE trademark, IBM will
provide WAVE a representative sample of each such Product. If IBM's or
IBM's sublicensee's use of WAVE's names and trademarks is improper and WAVE
provides IBM notice that WAVE objects to it, IBM will take all reasonable
steps necessary to resolve WAVE's objections. WAVE may reasonably monitor
the quality of products bearing its trademark under this license.
3.6 Any goodwill attaching to IBM's trademarks, service marks, or trade names
belongs to IBM and this Agreement does not grant WAVE any right to use
them. IBM may state that WAVE has provided the Licensed Works.
3.7 Subject to the limitations specified in Subsection 3.8 below, the grant of
rights and licenses to the Licensed Works includes utilizing any
combination of one or more of the following media: Code and text,
interactive capability, video, film, graphics (including animation), still
pictures, audio materials, musical compositions (including arrangements and
lyrics) and specific master recordings, and other creative or technical
content. The license to the Licensed Works applies to any and all
languages (except as provided in Subsection 1.9 of this Agreement),
purposes, formats, and
Page 10 of 22
<PAGE>
computers, interactive and networked (for example, Internet and intranet)
media, whether known or unknown, and all music rights, including, but not
limited to, use of musical compositions of the Licensed Works in Products
and all mechanical synchronization, videogram, master use and "new media"
rights. In addition, IBM may use the Licensed Works to promote, advertise,
and market the Product only within the context of the Product in any and
all media whether known or unknown.
3.8 Notwithstanding anything to the contrary in this Section, except for
Externals:
a. IBM's use of the Licensed Works and their Derivative Works contained
in the Self-Study Kit, which are not otherwise contained in the
Classroom Materials, is limited to IBM's Internal Use;
b. following the expiration or early termination of this Agreement, IBM's
use of the Classroom Materials and their Derivative Works (other than
(i) the instructor guides, (ii) printed student materials, (iii)
presentation materials, and (iv) the Derivative Works of the
foregoing) is limited to IBM's Internal Use;
c. IBM further agrees that its use (other than IBM Internal Use) of the
Classroom Materials and their Derivative Works in the following
countries is limited to classes where IBM:
1. invoices the customer directly;
2. IBM is a subcontractor to deliver training; or
3. IBM delivers the class.
<TABLE>
<CAPTION>
==============================================
<S> <C> <C>
** ** **
----------------------------------------------
** ** **
----------------------------------------------
** ** **
----------------------------------------------
** ** **
----------------------------------------------
** ** **
==============================================
</TABLE>
; and
d. IBM also agrees that, for a period of ninety (90) days following the
Effective Date, IBM will only use the Classroom Materials (and their
Derivative Works) in ** only for IBM's Internal Use. This restriction
shall be void after such ninety (90) day period.
Page 11 of 22
<PAGE>
3.9 IBM may mark each Derivative Work it creates with IBM's copyright notice.
Each such Derivative Work which bears an IBM copyright notice will, at a
minimum, include an appropriate statement that portions of the work are
copyrighted by WAVE. The placement of such statement will be at IBM's
discretion. In the case of manuals, such statement will normally be placed
in the front matter on the same page as IBM's copyright statement.
4.0 PAYMENT
4.1 For the rights and licenses granted herein, IBM will pay WAVE the
following:
a. for the first nineteen (19) months of the term of this Agreement, IBM
will pay WAVE a royalty of ** After both parties have signed this
Agreement and IBM has issued WAVE a supporting IBM Purchase Order,
WAVE will invoice IBM the sum of ** WAVE will invoice the remaining **
on or after March 1, 1998; and
b. after the initial nineteen (19) months of this Agreement and subject
to the cumulative limitations specified in the table below, IBM will
pay WAVE a per copy royalty of ** for each Self-Study Kit or
Derivative Work, created pursuant to this Agreement, IBM ships to an
user under this Agreement.
Months Cumulative
Maximum
Royalty*
__________________________________________________
20-31 **
32-43 **
*Includes ** royalty specified in 4.1.a above.
4.2 All royalty obligations will be paid-up for the Licensed Works on the
earlier of (1) the expiration date of this Agreement or (2) when IBM has
paid WAVE a cumulative maximum royalty of **.
4.3 WAVE will invoice IBM, in accordance with the instructions on the IBM
Purchase Order, for any royalties due WAVE by IBM. IBM reserves the right
to reasonably change the method and timing of quarterly royalty payments to
accommodate its worldwide operations.
4.4 IBM has no royalty obligation for:
a. the Licensed Works or their Derivative Works used for:
Page 12 of 22
<PAGE>
(1) IBM's and IBM Subsidiaries' (including third parties under
contract) activities relating to development, maintenance, or
support of a Product;
(2) Demonstration Products, Product marketing demonstrations, Product
training or education; or
(3) backup and archival purposes;
b. a copy of the Product used by a licensed end user at home or on travel
when such Product is stored on both the user's primary machine as well
as another machine, provided that the end user is not authorized to
actively use the Product on both machines at the same time;
c. the Licensed Works (or a functionally equivalent work) that becomes
available generally to third parties without a payment obligation
through no fault of IBM;
d. documentation, other than course materials, provided with, contained
in, or derived from the Licensed Works;
e. Error Corrections or Enhancements;
f. warranty replacement copies of the Product; or
g. Externals.
4.5 WAVE will provide IBM with WAVE demonstration products (Demonstration
Products) which accurately represent the Licensed Works. IBM may freely
use, copy and distribute Demonstration Products.
4.6 If WAVE offers another party lower rates, prices or royalties than are
available to IBM under this Agreement, WAVE will promptly offer the same to
IBM. If IBM accepts WAVE's offer, IBM will also accept associated
differences in licensing terms.
4.7 Each party will be solely responsible for any taxes incurred by the party,
directly or indirectly, associated with its performance of this Agreement.
The charges specified in section 4.11 include any relevant sales or use
taxes payable to any state or local government in the United States, but do
not include any import duties payable for Products shipped outside the
United States. IBM agrees to pay any such import duties.
4.8 Following the delivery and acceptance by IBM of the Classroom Materials, in
the form specified in the Attachment: Description of Licensed Works, IBM
will pay
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<PAGE>
WAVE a fee of ** for each Major Enhancement of the Classroom Materials IBM
accepts pursuant to Subsection 2.3 of this Agreement. IBM will pay this fee
no more than once in any twelve (12) month period. Except as provided in
this paragraph, all other Enhancements will be provided ** during the term
of this Agreement.
4.9 IBM will pay WAVE a fee of ** for each IBM Internal Use Self-Study Kit user
which IBM registers for Additional Support Services as described in Section
2.4.c Responsibilities of WAVE.
4.10 If IBM requests that WAVE conduct chat sessions in addition to those
required in the Section 2.4.c Responsibilities of WAVE, IBM will pay WAVE
** for each additional chat session requested by IBM and conducted by WAVE.
4.11 If IBM elects to have WAVE manufacture Self-Study Kits for IBM, IBM will
pay WAVE the following per copy fee:
** per Self-Study Kit for order quantities of between 200 and 999 units;
** per Self-Study Kit for minimum order quantities of 1,000 or more
units; or
** per Self-Study Kit for orders of 100 or more units if shipped to
Mechanicsburg, PA or Winnipeg, Manitoba (Canada).
The fees specified above are inclusive of all charges (except royalties)
due WAVE including 1) all transportation charges to the five (5)
addressees) provided by IBM, 2) warehousing charges and 3) United States
state, local and federal taxes.
In addition, IBM may place orders in quantities of less than 100 units
which are not shipped to Mechanicsburg, PA or Winnipeg, Manitoba (Canada).
For such orders, IBM will pay WAVE a per copy fee of ** plus shipping
charges to the IBM designated destination.
From time to time IBM may send WAVE an order for Products or Licensed Works
authorized by an IBM Purchase Order. Upon receipt of such order, WAVE will
ship to the IBM designated locations(s), the Licensed Works or Products
specified, in quantities, on dates and via the preferred method(s) of
transportation, paid for by WAVE, specified by in such order. WAVE may, at
its discretion, elect an alternative carrier provided that the WAVE carrier
will deliver the Products (or Licensed Works) to the designated delivery
warehouse within fifteen (15) days.
IBM will provide WAVE with camera ready copy of bar code facsimile(s).
WAVE will reproduce bar code labels and affixing such labels to the
packaging of all Products or Licensed Works to be delivered to IBM,
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<PAGE>
Orders will be shipped on the date(s) specified by IBM unless such date is
less than 15 days from the date WAVE received the order. If WAVE is unable
to meet IBM's specified ship date, WAVE will notify the IBM Technical
Coordinator within twenty-four hours of after receipt of the order and
propose alternate ship date(s). Within five (5) work days, IBM will accept
such alternative ship dates or cancel the order, in each case in whole or
in part, without liability.
IBM may open, inspect and test any number of Products/Licensed Works to
determine whether each shipment meets required quality levels, including
100% defect-free conformity of all materials and media. If any shipment
contains defects IBM may return some or all of the Products in the shipment
at WAVE's expense, or, at WAVE's written instruction, destroy such
defective Products/Licensed Works, and at IBM's option, require WAVE to
replace such Products/Licensed Works.
Following the first nineteen (19) months of the Agreement, upon written
notice to WAVE, IBM may destroy any obsolete Products/Licensed Works in its
inventory and request a credit for any royalties paid for such obsolete
inventory. IBM may offset the amount of any credit due IBM against any
future payments due WAVE.
IBM order quantities for Products may consist of both Products or resale
(pursuant to the terms and conditions of related Courseware Remarketing
Agreement N. T97262-00) and Products for IBM's Internal Use (pursuant to
the terms and conditions of this Agreement), which for purposes of this
Agreement shall be considered as IBM's single order quantity being
purchased.
All prices and order quantities specified in the Section are for orders
shipped to a single address.
4.12 All invoices will include the following information:
. this Courseware License Agreement number;
. WAVE's company and remit to address;
. a short description of the milestone or PO Item for which payment is due;
and
. IBM's Purchase Order/Agreement number, WAVE's invoice number and its
date.
4.13 All invoices will be addressed to IBM Corporation and sent (with a copy to
the IBM Technical Coordinator) to the address specified in IBM's Purchase
Order. IBM will pay WAVE's invoices within thirty (30) days of receipt of
an invoice meeting the criteria specified in this Section.
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<PAGE>
4.14 The payments defined in this Section fully compensate WAVE for its
performance under, and for the rights and licenses granted in, this
Agreement.
IBM may, at its option, reduced or offset any payment due WAVE for penalty
fees due IBM in Agreement.
4.15 TESTING
5.1 Upon receipt of the Licensed Works by IBM, IBM may evaluate the Licensed
Works for a period of 30 days and perform such tests as IBM deems
appropriate to determine if:
a. the Licensed Works meets the specifications described this Agreement
and in the Attachment: Description of Licensed Works;
b. the Licensed Works execute repetitively within the system environment
described in the Attachment: Description of Licensed Works; and
c. IBM can successfully execute to completion all functional and system
test scenarios developed by IBM.
IBM's testing does not relieve WAVE of its obligations under this
Agreement. IBM has no obligation to identify errors.
6.0 REPRESENTATIONS AND WARRANTIES
6.1 WAVE makes the following ongoing representations and warranties:
a. WAVE has full legal rights to grant the rights granted herein;
b. WAVE is not under, and will not assume, any contractual obligation
that prevents WAVE from performing its obligations or conflicts with
the rights and licenses granted in this Agreement;
c. there are no liens, encumbrances or claims pending or threatened
against WAVE, or to WAVE's knowledge, anyone else, that relate to the
rights and licenses granted in this Agreement;
d. neither the Licensed Works nor the Tools contain libelous matters nor
do they directly or indirectly infringe any publicity, privacy or
intellectual property rights of a third party including, to WAVE's
knowledge, any patents or patent applications;
Page 16 of 22
<PAGE>
e. the Licensed Works and the Tools will perform in accordance with the
requirements set forth in this Agreement, including the Attachment:
Description of Licensed Works, and will conform to WAVE's user
documentation, and any sales and marketing materials provided by WAVE;
f. the fully commented Source Code, Source Materials and documentation
that WAVE provides corresponds to the current release or version of
the Licensed Works provided by WAVE under this Agreement;
g. the Licensed Works supports the Year 2000; it is capable of correctly
processing, providing and receiving date data, as well as properly
exchanging accurate date data with all products (for example,
hardware, software and firmware) with which the Licensed Works is
designed to be used;
h. neither the Licensed Works nor the Tools are contaminated by harmful
code; and
i. authors have waived their Moral Rights in the Licensed Works to the
extent permitted by law.
WAVE will immediately provide IBM written notice of any change that may
affect its representations and warranties.
6.2 Except as provided above, anything either party provides to the other
related to this Agreement is "AS IS", without warranty of any kind.
7.0 INDEMNIFICATION AND LIABILITY
7.1 WAVE will defend and indemnify IBM and IBM's Subsidiaries if a third party
makes a claim against IBM or its Subsidiaries based on an actual or
alleged:
a. failure by WAVE, to the extent not caused by IBM, to perform WAVE's
obligations under this Agreement;
b. breach of WAVE's representations and warranties;
c. failure by WAVE to comply with government laws and regulations; or
d. infringement by WAVE, the Licensed Works or Tools of patents,
copyrights, trademarks, trade secrets, and other intellectual property
rights.
7.2 IBM will defend and indemnify WAVE if a third party makes a claim against
WAVE based on an actual or alleged:
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<PAGE>
a. failure by IBM, to the extent not caused by WAVE, to perform IBM's
obligations under this Agreement; and
b. failure by IBM to comply with government laws and regulations.
7.3 The party seeking indemnification will:
a. promptly provide the indemnifying party notice of any such claim; and
b. allow the indemnifying party to control, and cooperate with the
indemnifying party in the defense of, the claim and settlement
negotiations.
The indemnified party may participate in the proceedings at its option and
expense.
7.4 In addition, if an infringement claim appears likely or is made, WAVE will:
a. obtain the necessary rights for IBM, IBM Subsidiaries and Distributors
and their respective customers to continue to distribute, license,
otherwise transfer and use the Licensed Works on an uninterrupted
basis and exercise all rights granted in the Licensed Works and Tools;
or
b. modify the Licensed Works and Tools at WAVE's expense to resolve the
claim. This modified Licensed Work will comply with the Attachment:
Description of Licensed Work.
If WAVE is not able to do either within a reasonable period of time, IBM
may terminate this Agreement for WAVE's breach.
7.5 In addition to any remedies specified in this Agreement, each party may
pursue any other remedy it may have in law or in equity.
7.6 Regardless of the type of claim, neither party is liable to the other for
indirect, incidental, special, or consequential damages including, but not
limited to, lost profits or revenues, under any part of this Agreement,
even if informed that they may occur. This limitation does not apply to
(a) WAVE's liabilities for indemnity above or (b) any obligations of either
party to make a payment which is due under this Agreement.
8.0 TERM AND TERMINATION
8.1 This Agreement begins on the Effective Date and continues thereafter for an
additional forty-three (43) calendar months. The Agreement expires on the
last day of the 43rd calendar month unless terminated sooner under the
terms of this Agreement.
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<PAGE>
8.2 Either party may terminate this Agreement for the other's material breach
by providing the breaching party with a written notice that describes the
breach. The termination will become effective forty-five (45) days after
receipt of the notice unless the breach is cured within that forty-five
(45) day period. However, if the breach (other than a breach for failure
to deliver the Licensed Works) by its nature, cannot be remedied in forty-
five (45) days, but can be remedied in a reasonable time thereafter, the
breaching party will take reasonable and diligent steps to remedy it,
notify the other party of the action plan, progress towards completion, and
complete such remedial action promptly. In such event, the notice period
will be suspended while the breaching party takes these actions.
8.3 IBM may terminate this Agreement without cause on 30 days' notice to WAVE.
However, IBM's obligation to pay the ** royalty for the first nineteen (19)
months of the Agreement (pursuant to Subsection 4.1) shall survive the
early termination of this Agreement by IBM.
8.4 Expiration of this Agreement does not affect any licenses granted in this
Agreement for the Licensed Works or Tools. Termination of this Agreement
does not affect any licenses granted in this Agreement for the Licensed
Works or Tools delivered or due to IBM prior to the effective date of
termination. In the event of termination by IBM for breach by WAVE, IBM
will not be obligated to make any payments that would have become due under
this Agreement on or after the effective date of termination, except for
IBM's obligation to pay the ** royalty for the first nineteen (19) months
of the Agreement (pursuant to Subsection 4. 1). IBM's payment obligations
are also subject to Subsection 2.5.
8.5 Subject to Subsection 8.4, any provisions of this Agreement that by their
nature extend beyond termination or expiration will survive in accordance
with their terms. These include License, Representations and Warranties,
Indemnification and Liability, and General. These terms will apply to
either party's successors and assigns.
9.0 COORDINATORS
9.1 Any notice required or permitted to be made by either party to this
Agreement must be in writing. Notices are effective when received by the
appropriate coordinator as demonstrated by reliable written confirmation
(for example, certified mail receipt or facsimile receipt confirmation
sheet).
9.2 The Contract Coordinators responsible to receive all notices and administer
this Agreement are:
For For
IBM: WAVE:
Name: Laura Spence Name: Mr. Jim Fitzgerald
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<TABLE>
<S> <C>
Title: Title: VP Corporate Administration
Address: 1500 RiverEdge Parkway Address: 10845 Olive Blvd.
Atlanta, GA 30328 St. Louis, Missouri 63141
Phone: 770-644-4687 Phone: 314-692-1811
Fax: 770-644-4868 Fax: 314-995-3894
</TABLE>
9.3 The Technical Coordinators responsible to accept all Deliverables,
coordinate all exchanges of confidential information, and administer and
coordinate the technical matters associated with this Agreement are:
<TABLE>
<S> <C>
For For
IBM: WAVE:
Name: Mr. Gabe Buckler Name: Mr. Jim Fitzgerald
Title: Title: VP Corporate Administration
Address: 1500 RiverEdge Parkway Address: 10845 Olive Blvd.
Atlanta, GA 30328 St. Louis, Missouri 63141
Phone: 770-644-4717 Phone: 314-692-1811
Fax: 770-644-4868 Fax: 314-995-3894
</TABLE>
Technical Coordinators may propose, accept (by signature or initial), and
implement technical changes to this Agreement that do not change dollar
amounts or materially change Deliverables or the schedules of this
Agreement.
9.4 A party will provide written notice to the other when its coordinators
change.
10.0 GENERAL
10.1 Independent Contractor. Each party is an independent contractor. Neither
party is, nor will claim to be, a legal representative, partner,
franchisee, agent or employee of the other except as specifically stated in
the Subsection entitled "Copyright" below. Neither party will assume or
create obligations for the other. Each party is responsible for the
direction and compensation of its employees.
10.2 Freedom of Action. Each party may have similar agreements with others.
Each party may design, develop, manufacture, acquire or market competitive
products and services, and conduct its business in whatever way it chooses.
IBM is not obligated to announce or market any products or services. IBM
does not guarantee the success of its marketing efforts. IBM will
independently establish prices for its products and services.
10.3 Reliance. Neither party relies on any promises, inducements or
representations made by the other or expectations of more business
dealings, except as expressly provided in this Agreement. This Agreement
accurately states the parties' agreement.
Page 20 of 22
<PAGE>
10.4 Compliance With Applicable Laws. Each party will comply with all
applicable laws and regulations at its expense including, to the extent
applicable, Executive Order 11246 on Equal Employment Opportunity, as
amended, the Occupational Safety and Health Act of 1970, as amended, and
the Americans With Disabilities Act of 1990, as amended. This also
includes all applicable government export and import laws and regulations.
10.5 Confidential Information. The parties agree that information exchanged
under this Agreement that is considered by either party to be confidential
information will be subject to the terms of the AECI referenced on the
first page of this Agreement and its Supplements. In addition, WAVE will
not provide IBM with any information which may be considered confidential
information of any third party unless provided under the AECI. The
obligations set forth in the AECI with regard to confidential information
will not limit or preclude the exercise of the licenses granted in this
Agreement.
10.6 Copyright. Any publication by IBM of the Licensed Works or a Derivative
Work thereof may contain an appropriate copyright notice, pursuant to
Section 3.
WAVE will enforce and maintain its copyright protection in the Licensed
Works. IBM is not responsible for enforcing and maintaining such
copyright protection. However, WAVE authorizes IBM to act as WAVE's agent
in the copyright registration of the Licensed Works. At IBM's request,
WAVE agrees to provide IBM reasonable assistance in registering any
Product.
10.7 Order of Precedence. If there is a conflict among the terms of this base
License Agreement and its Attachments, the terms of this base License
Agreement prevail over those of the Attachments, unless the parties
expressly indicate in the Attachments that particular terms within the
Attachments prevail. Terms in IBM's purchase orders and WAVE's invoices or
acknowledgments, if any, are void.
10.8 Headings. The headings of this Agreement are for reference only. They
will not affect the meaning or interpretation of this Agreement.
10.9 Counterparts. This Agreement may be signed in one or more counterparts,
each of which will be considered an original, but all of which together
form one and the same instrument.
10.10 Amendment and Waivers. For a change to this Agreement to be valid, both
parties must sign it. No approval, consent or waiver will be enforceable
unless signed by the granting party. Failure to insist on strict
performance or to exercise a right when entitled does not prevent a party
from doing so later for that breach or a future one.
Page 21 of 22
<PAGE>
10.11 Actions. Neither party will bring a legal action relating to the subject
matter of this Agreement, against the other more than 2 years after the
cause of action arose, except in the case of indemnification for
infringement, in which case this period runs for 2 years after the award
or settlement was made.
10.12 Dispute Resolution. Both parties will act in good faith to resolve
disputes prior to instituting litigation. Each party waives its rights to
a jury trial in any resulting litigation. Litigation will only be
commenced in the State of New York.
10.13 Governing Law. This Agreement will be governed by the substantive law of
the State of New York applicable to contracts executed in and performed
entirely within that State. The United Nations Convention on Contracts for
the International Sale of Goods does not apply. WAVE will, upon written
notice from IBM, submit to personal jurisdiction in any forum where IBM is
sued for claims related to this Agreement.
Page 22 of 22
<PAGE>
Attachment: Description of Licensed Works
1.0 General description of Licensed Works:
The Licensed Works are WAVE's Microsoft Networking/MSCE Self-Study Program
Release 4.0 (Self-Study Kit) and instructor led training materials (Classroom
Materials). The operating environments for the Licensed Works include but not
limited to, Microsoft Windows 3.1, Windows 95, Windows NT 3.5 and 4.0, and
WinOS2 in IBM OS/2 Warp 3.0 and 4 0.
1.1 Self-Study Kit is all materials delivered to IBM by WAVE as part of the
Self-Study Kit. These materials include, but are not limited to, the
following:
a. Manuals
. MCSE Study Guide
. Guide to Getting Started (IBM OEM version)
. Windows 95 Administration
. Windows 95 Administration Exercise Manual
. Windows NT V4 0 Server & Enterprise Implementation
. Windows NT V4.0 Server Administration
. Windows NT V4 0 Workstation Administration
. Microsoft Networking Essentials
. Microsoft Implementations of TCP/IP on Windows NT Study Guide
. Microsoft implementations of TCPI1P on Windows NT V4 0
. Challenge! Interactive User's Guide (for TCP and MMIS)
. Managing the Microsoft Internet Information Server
. Managing the Microsoft Internet Information Server Study Guide,
b. CD-ROM
. MCSE Study GuideJChallenge! Interactive Companion CD
. Microsoft Interactive Networking Simulation
. MCSE Self-Study Video
. Microsoft TCP/IP for Windows NT V4.0 Study Guide/Challenge CD
. Managing the Microsoft lnternet Information Study Guide/Challenge
CD;
c. Video's (NTSC and PAL formats)
. Guide to Getting Started
. Windows NT V4.0 Server
. Windows NT V4.0 Server & Enterprise Implementation
. Windows NT V4.0 Workstation
. Microsoft Networking, Essentials
. IP Naming Conventions
. Windows 95 Administration
. Managing the Microsoft lnternet Information Server Student Video;
and
<PAGE>
d. Various
. 3.5 inch diskette(s)
. OEM Shipping Carton
. OEM MCSE Self-Study Box;
1.2 Classroom Materials are all those instructor and student materials
delivered by WAVE as part of the instructor led materials including, but
not limited to' the following:
a. Windows NT 4.0 Administration
. Windows NT V4.0 Core Technologies & Administration - Instructor
. materials and lab setup instructions
. Windows NT V4.0 Core Technologies & Administration - Manual
. Windows NT V4.0 Core Technologies & Administration - CO-ROM
. Learning Windows NT V4.0 Workstation & Server - Video;
b. Windows NT 4.0 Enterprise
. Windows AT V4.0 Server & Enterprise Implementation - Instructor
. materials and lab setup instructions
. Windows NT V4.0 Server Enterprise Implementation - Manual
. Windows NT V4.0 Server Enterprise Implementation - CD-ROM
. Learning Windows NT V4.0 Server & Enterprise Implementation -
Video.
c. Windows 95 Administration
. Windows 95 Administration - Instructor materials and lab setup
instructions
. Windows 95 Administration - Student Manual
. Windows 95 Administration - Student CD-ROM
. Windows 95 Administration - Student Video;
d. Microsoft Networking Essentials
. MS Networking Essentials - Instructor materials and lab setup
instructions
. MS Networking Essentials - Student Manual
. MS Networking Essentials - Student CD-ROM
. MS Networking Essentials - Student Video;
e. Managing the Microsoft Internet Information Server
. Managing the MS Internet Information Server - Instructor materials
and lab setup instructions
. Managing the MS Internet: Information Server - Student Manual
. Managing the MS Internet Information Server - Student CD-ROM
. Managing the MS Internet Information Server - Student Video;
f. Microsoft Implementations of TCP/IP for Windows NT v4.0
<PAGE>
. Microsoft Implementations of TCP/IP Windows NT 4.0 - Instructor
. materials and lab setup instructions
. Microsoft Implementations of TCP/IP Windows NT 4.0 - Student Manual
. Microsoft Implementations of TCP/IP Windows NT 4.0 - Student CD-ROM
. IP Naming Conventions - Video;
g. Instructor materials for teaching a seven (7) day lab with the Self-
Study Kit. These materials include instructor guide, lab setup
requirements and lab setup instructions; and
h. Electronic masters and Source Materials for all of the above Classroom
Materials on CD-ROM. Instructor overhead transparencies will be
provided in Lotus Freelance Graphics 97 format and other Source
Materials will he provided in WordPro '97 format. Beta masters of each
video will be provided in both NTSC and PAL format. A golden or glass
master of each CD-ROM will be provided by WAVE. Major Enhancements for
each component of the Classroom Materials will be provided in the
format specified by IBM in writing. Such format(s) are limited to
those format(s) used by common commercially available publishing and
graphics Tools.
2.0 Other Materials
The License Works also include any other related written materials delivered to
IBM by WAVE such as installation instructions labels, covers, etc.
<PAGE>
Attachment: Schedule
<TABLE>
<CAPTION>
Deliverable Milestones Delivery Date
---------------------- -------------
<S> <C> <C>
a. Current WAVE Classroom Materials in the form Within 10 business days
WAVE currently uses in its business including all following the signing of
this Agreement
b. Delivery of Tools Within 60 days the
Effective Date; and within
30 days of availability of
any change to the Tools
c. All Source Materials to the Licensed Works Within 90 days following
(including Code) in the form(s) specified in the the Effective Date of the
Attachment: Description of Licensed Works Agreement and within 60
days of availability of any
Enhancement
d. Receipt of the completed Certificate of Originality Within 7 days following
for the Licensed Works or Enhancements delivery of a Licensed
Works or an Enhancement
</TABLE>
<PAGE>
Attachment: Travel Expense Reimbursement
The terms of the IBM Courseware License Agreement (or any equivalent agreement
signed by both of us) ("CLA") apply. The following terms apply when IBM
authorizes and reimburses your travel expenses associated with the CLA. You
accept them by signing the CLA that references this Attachment.
IBM will reimburse you for reasonable and actual travel and living expenses
incurred while performing services under the CLA according to this Attachment
provided you have obtained IBM's prior written approval and submitted acceptable
invoices to IBM with supporting documentation.
1. REIMBURSABLE EXPENSES
1.1 IBM will reimburse you for:
a) tolls, parking fees, taxis, buses or auto rentals. For auto
rentals, you will obtain prior instructions from IBM regarding
the rental company and rates to be used. If you use your personal
automobile for travel, IBM will reimburse you under the
applicable automobile allowance plan for the most direct,
practical route. IBM will not reimburse expenses of normal
commutation;
b) air transportation at the economy, tourist or coach class rate
for the most direct route of a scheduled airline,
c) lodging charges commensurate with the average rates charged for
the immediate area. You will obtain prior instructions from IBM
regarding its negotiated rates that may extend to your travel;
d) reasonable and actual meal expenses up to $25.00 per day;
e) necessary business calls made on IBM's behalf;
f) reasonable tipping; and
g) reasonable valet and laundry charges if a trip extends beyond
four days.
1.2 IBM will not reimburse you for personal expenses such as hotel shop
purchases, alcoholic beverages and sundry items. IBM will not
reimburse you for charges associated with any personal side trips. If
such expenses appear on receipts, you will deduct them from your
invoice.
Page 1 of 2
<PAGE>
2. REQUIRED DOCUMENTATION
2.1 The following information must be included with all invoices:
a) IBM Courseware License Agreement number;
b) expenses incurred;
c) receipts for lodging costs, airline travel, rental cars and all
other expenditures of $25 or, more;
d) name of your company and "remit to" address;
e) the name of the IBM representative who authorized the expense;
and
f) IBM's purchase order number (if applicable), your invoice number
and its date.
2.2 You will address all invoices for expenses to the IBM Corporation as
identified in the Transaction Document. You will send a copy of your
invoice to the IBM representative that authorized the expense. IBM
will pay you 30 days after IBM receives an acceptable invoice.
Page 2 of 2
<PAGE>
Attachment: Maintenance and Product Support
1.0 Error Correction
In addition to the maintenance and support obligations stated in this Agreement,
WAVE will, during the term of this Agreement, use its best efforts to correct
all errors or defects identified by IBM in the Licensed Works.
2.0 Product Support
Product Support is phone, email and other direct end-user contact to answer
questions and address issues pertaining to the physical presentation, Error
Corrections, performance, or media of the Products. Product Support does not
include addressing issues or questions pertaining to the subject matters
addressed by the training materials. Product Support includes resolving issues
regarding loading of the software components of Product(s), defective Product
components or using elements of the Self-Study Kit. WAVE is obligated to provide
Product Support only in English.
Product Support provided to IBM end-users will be at least as favorable as the
support you generally offer to your own customers for the Products. However,
such Product Support does not include Additional Support Services (as described
in Subsection 2.4.c). WAVE will provide Product Support to IBM end-users during
the term of this Agreement and for one (1) year following the expiration of this
Agreement.
WAVE will provide toll free phone access for Product Support where WAVE offers
it.
If a Licensed Work or Product does not comply with its warranties or
specifications, WAVE will correct the problem without charge using WAVE's best
efforts.
3.0 Priority Support
Priority Support is technical support provided to IBM support personnel and IBM
instructors. WAVE will a) provide Priority Support from 8:00am CST until 6:00pm
CST, Monday through Friday, and b) respond to IBM Priority Support requests
within four (4) hours via email or, where available, by telephone.
<PAGE>
Form of
Certificate of Originality
You may use this questionnaire to cover one complete product, even if that
product includes multiple modules.
Please leave no questions blank. Write "not applicable" or "N/A" if a question
is not relevant to the furnished software material. If you need additional
space to complete any question, please attach a separate sheet of paper that
identifies the question number. Depending on your responses, IBM may require
additional information.
1. Please identify the software material including version, release, and
modification numbers for programs and any documentation:
_____________________________________________________
2. Was any portion of the software material written by anyone other than you or
your employees within the scope of their employment? YES _____ NO _____.
If YES, provide, as an attachment, the following information:
A) Indicate if the whole software material or only a portion thereof was
written by such party, and identify such portion:
i. Specify for each involved party the name, address, and
citizenship:
ii. If the party is a company, how did it acquire title to the
software material (e.g., software material was written by company's
employees within the scope of their employment)?
iii. If the party is an individual, did he/she create the software
material while employed by or under contractual relationship with
another party? YES _____ NO ______
If YES, provide name and address of the other party and explain the
nature of the contractual relationship:
B) How did you acquire title to the software material written by the
other party?
________________________________________________________________
3. Are any copyright, confidentiality, or proprietary notice(s) present on the
software material(s)? YES _____ NO ______ If YES, please describe such
notice(s).
____________________________________________________________________
Page 1 of 2
<PAGE>
4. Was any portion of the software material (e.g., Code, associated
documentation or any pictorial, graphic and audiovisual works (e.g., icons,
screens, sounds, and characters) derived from preexisting works (either yours or
a third party's), including any code from freeware, shareware, electronic
bulletin boards, or the Internet? YES _____ NO ______ If YES, please
identify the material, author, owner and copyright notice, if any, for each of
the preexisting materials.
______________________________________________________________________
5. Do any of the software materials (e.g., Code, associated documentation or
any pictorial, graphic and audiovisual works {e.g., icons, screens, sounds, and
characters}) include recognizable voices, pictures or other likenesses?
YES ____ NO ______ If YES, how did you acquire rights to use such recognizable
voices, pictures or other likenesses?
________________________________________________________________________
6. Provide, as an attachment, an explanation of any other circumstance which
might affect IBM's ability to reproduce, distribute and market this software
material, including whether your software material was prepared from any
preexisting materials which have any: a) confidentiality or trade secret
restrictions to others; b) known or possible royalty obligations to others; or
c) other preexisting materials developed for another party or customer
(including any governmental entity) where you may not have retained full rights
to such other preexisting materials.
________________________________________________________________________
7. You recognize that, for copyright registration or enforcement of legal
rights relating to the furnished software material, IBM may need you to produce
additional information related to the software material. You hereby agree to
cooperate with IBM and provide such information to IBM at IBM's request.
As an authorized representative of __________________________________, I hereby
certify the above to be true and accurate.
By: __________________________________________
Authorized Signature
Name: ________________________________________
(Type or Print) Date
Title: _______________________________________
Page 2 of 2
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND> This schedule contains summary financial information extracted from
the registrant's financial statements as of and for the period ended July 31,
1997 and is qualified in its entirety by reference to such financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> APR-30-1998
<PERIOD-START> MAY-01-1997
<PERIOD-END> JUL-31-1997
<CASH> 993,177
<SECURITIES> 0
<RECEIVABLES> 5,737,605
<ALLOWANCES> 416,000
<INVENTORY> 867,150
<CURRENT-ASSETS> 8,016,841
<PP&E> 9,548,047
<DEPRECIATION> 5,464,990
<TOTAL-ASSETS> 15,562,524
<CURRENT-LIABILITIES> 7,871,527
<BONDS> 0
0
0
<COMMON> 1,979,971
<OTHER-SE> 5,282,858
<TOTAL-LIABILITY-AND-EQUITY> 15,562,524
<SALES> 3,438,520
<TOTAL-REVENUES> 7,863,937
<CGS> 656,112
<TOTAL-COSTS> 4,467,684
<OTHER-EXPENSES> 4,071,365
<LOSS-PROVISION> 14,768
<INTEREST-EXPENSE> 16,312
<INCOME-PRETAX> (689,184)
<INCOME-TAX> (240,000)
<INCOME-CONTINUING> (449,184)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (449,184)
<EPS-PRIMARY> (0.11)
<EPS-DILUTED> (0.11)
</TABLE>
