Exhibit 10.1
AMENDMENT
TO GLOBAL PURCHASE AGREEMENT
This Amendment ("Amendment") dated as of December 20, 2001 ("Effective
Date") is made by and between HSBC Holdings plc, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, acting for and on behalf of all current and future
subsidiaries, associated and managed companies of HSBC Holdings plc
(collectively, "HSBC") and Uniview Softgen Corporation, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, acting for and on behalf of all
subsidiaries, associated and managed companies of Uniview Softgen
Corporation (collectively, "Uniview"), as successor in interest to SoftGen
(defined below).
WHEREAS, the parties hereto desire that this Amendment amend the Global
Purchase Agreement dated October 26, 1999 by and between HSBC and SoftGen
International, Inc. ("SoftGen"), as such may have been amended from time to
time (collectively, "Agreement").
NOW THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and in consideration of the promises, mutual
covenants and conditions contained herein, the parties hereto intending to
be legally bound, agree as follows:
1. CONSTRUCTION
In the event that the provisions of this Amendment and the Agreement
are inconsistent or conflicting, then the provisions of this Amendment shall
control. All capitalized terms not otherwise defined herein shall have the
same meanings assigned thereto in the Agreement. Except as modified herein,
the Agreement shall remain in full force and effect. The Agreement, as
amended by this Amendment, shall be referred to herein as the "Amended
Agreement".
2. DEFINITIONS
2.1. Definitions. As used herein, the following terms shall have the
following meanings:
(a) "Derivative Works" means (i) any and all software applications,
software products, APIs, interfaces, work product, services,
Improvements, modifications, additions, alterations, enhancements,
new versions, translations, adaptations, materials and
documentation, in any medium, format or form whatsoever that is
derived in any manner, directly or indirectly, from the Licensed
Software, or any part or aspect thereof; (ii) any and all
"derivative works" (as defined in ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code,
S101 et. Seq., as amended) of the Licensed Software; and (iii) any
and all materials and documentation related to each of the
foregoing.
(b) "Documentation" means any and all of the materials prepared
by or for Uniview for use in connection with the Licensed
Software, including user and technical manuals and operation
guides, whether in printed, electronic or other form, as such
materials may be updated from time to time.
(c) "Improvements" means any and all ideas, designs, concepts, know-
how, technology and discoveries, whether or not patented.
(d) "Intellectual Property Rights" means any and all rights and
registrations (including all renewals and extensions thereof)
existing from time to time under patent law, copyright law, trade-
secret law, trademark law, moral rights law, unfair competition
law, or similar rights in the United States of America and
elsewhere throughout the world.
(e) "Licensed Software" means the object code and Source code of the
software listed on Exhibit A attached hereto and made a part
hereof.
(f) "Uniview Personnel" means any and all (i) full-time, part-time
and/or temporary employees of Uniview, (ii) independent
contractors, consultants and/or agents performing services for or
on behalf of Uniview, (iii) any other person performing services
at any time for or on behalf of Uniview.
(g) "Source Code" means both machine readable and human readable
copies of the Licensed Software consisting of instructions to be
executed upon a computer in the language used by its programmers
(i.e., prior to compilation or assembly) in a form in which the
program logic of the software is deducible by a human being, fully
commented, and including but not limited to (i) all related flow
diagrams, specifications (including interface specifications),
(ii) all Documentation, manuals and other materials which Uniview
possesses or has access to, and (iii) all compilers, software
tools, and third-party software which Uniview may provide to HSBC
without paying anything in excess of a nominal fee, which are
necessary or useful to allow HSBC to properly effect modifications
and support for the Licensed Software.
3. LICENSE GRANT
3.1. License Grant. Uniview hereby grants, and HSBC hereby accepts, a
worldwide, perpetual, irrevocable, non-exclusive, non-transferable
(except as described in the Agreement), royalty-free, fully paid-
up license to use, execute, display, perform, modify, create
Derivative Works of, and internally distribute and reproduce the
Licensed Software in any medium in accordance with the terms of
the Amended Agreement.
3.2. Scope of License. HSBC may (i) use the Licensed Software
enterprise-wide at any site in any country where HSBC operates;
(ii) use the Licensed Software on all equipment, workstations and
networks of HSBC; (iii) use the Licensed Software on any computer
or platform (without regard to processing power) on which Uniview
offers the Licensed Software; (iv) install and operate the
Licensed Software; (v) maintain and backup the Licensed Software
and establish and maintain a disaster recovery site in accordance
with HSBC's policies therefor; (vi) integrate the Licensed
Software with other software, interfaces, networks and pipelines
used by HSBC as of the Effective Date hereof or in the future; and
(vii) authorize a third party contractor, consultant, outsourcer,
vendor or agent of HSBC to perform any of the foregoing on behalf
of HSBC, provided that such third parties agree to be bound by
confidentiality obligations substantially similar to those set
forth in the Amended Agreement. There are no limits or
restrictions on the number or identity of individuals who are
assigned as users, the number or location of servers or
workstations, and/or HSBC's ability to assign, de-assign, change,
add or substitute, as the case may be, users, servers,
workstations and/or locations. Any of the actions in the
preceding sentence may be taken by HSBC at any time without notice
to Uniview. HSBC may reverse-engineer all or any portion of the
Licensed Software. Notwithstanding anything to the contrary
contained in the Amended Agreement, HSBC's use of the Licensed
Software (including HSBC Derivative Works) shall be limited to its
own internal use and shall not include any transfer of the
Licensed Software (including HSBC Derivative Works) or any part
thereof to any party outside of HSBC.
3.3. Copies. In addition to its rights under the Agreement, HSBC
shall have the right to make an unlimited number of copies of the
Licensed Software, at no additional charge, for use, archival,
testing, development, maintenance, backup, training, disaster
recovery and any other business purposes.
3.4. Perpetual License. Notwithstanding anything to the contrary
contained in the Agreement, and except as otherwise provided in
this Amendment, it is specifically understood and agreed by
Uniview that under no circumstances shall the license granted
under this Amendment be impaired, revoked or restricted by Uniview
in any manner or at any time, except if the license fee set forth
in Section 5.2 below has not been paid in full by HSBC in
accordance with this Amendment. This Section 3.4 shall not,
however, affect Uniview's right to seek other injunctive relief to
prevent an initial or continuing material breach of the Amended
Agreement, but not affecting HSBC's continuing use of the Licensed
Software as contemplated by this Amendment.
4. DELIVERY OF LICENSED SOFTWARE AND VERIFICATION
4.1. Delivery. Uniview shall deliver the Licensed Software to HSBC
in CD-ROM and disk form, or such other format requested by
HSBC, by January 7, 2001 ("Delivery Date") in accordance with
the delivery instructions provided to Uniview by HSBC. If at
any time, including but not limited to, after HSBC makes the
Final Payment (as defined below) to Uniview, it is discovered
that any portion of the Licensed Software was not delivered
to HSBC, HSBC shall so notify Uniview and Uniview shall
promptly deliver such undelivered portion of the Licensed
Software to HSBC.
4.2. Verification. From the Delivery Date to and including
January 31, 2002 ("Verification Period"), HSBC shall have the
right to verify that all of the Licensed Software required to
be delivered hereunder has been delivered to HSBC
("Verification"). Uniview shall provide all reasonable
assistance to HSBC in connection with such Verification,
including but not limited to, delivery to HSBC of such
indexes of the items of Licensed Software as may be
reasonably requested by HSBC and assistance from ▇▇▇▇▇▇▇
▇▇▇▇▇ or such other Uniview Personnel designated by HSBC at a
location designated by HSBC for a period of time not to
exceed fourteen (14) days.
5. INTELLECTUAL PROPERTY RIGHTS
5.1. Ownership of Programs. Subject to the other provisions of this
Article 5, HSBC acknowledges and agrees that ownership of the
object code and Source Code of (i) the Operating Programs and
Further Operating Programs, (ii) the Licensed Software, and (iii)
all Customized Software Developments, Further Customized Software
Developments and Derivative Works developed by Uniview (x) prior
to the Effective Date (whether created solely by Uniview or
jointly with HSBC) and/or (y) without the assistance of HSBC after
the Effective Date, shall remain with Uniview.
5.2. Ownership and Assignment of Derivative Works. Notwithstanding
any provision to the contrary contained in the Agreement, Uniview
acknowledges and agrees that all Derivative Works of the Licensed
Software developed by or on behalf of HSBC (whether created solely
by HSBC or jointly with Uniview Personnel) after the Effective
Date (individually and collectively, "HSBC Derivative Works")
shall be exclusively owned by HSBC Holdings plc, and all
Intellectual Property Rights and other legal and equitable rights
embodied therein or pertaining thereto, are and shall be the
exclusive and confidential property of HSBC Holdings plc. To the
extent that any of the HSBC Derivative Works are not so
considered, Uniview hereby irrevocably assigns, transfers,
releases and conveys to HSBC Holdings plc in perpetuity, from the
moment of creation, any and all of its right, title and interest
in and to such HSBC Derivative Works, including all Intellectual
Property Rights and other legal and equitable rights embodied
therein or pertaining thereto, free and clear of any and all
rights and claims by Uniview, the Uniview Personnel or any other
third party, without further consideration or action of either
party.
5.3. Assignment by Uniview Personnel. Uniview shall use its best
efforts to cause any and all Uniview Personnel who participated in
any way in the development of any of the HSBC Derivative Works to
similarly irrevocably assign, transfer, release and convey to HSBC
Holdings plc in perpetuity, from the moment of creation, all of
their right, title and interest in and to such HSBC Derivative
Works, including all Intellectual Property Rights and other legal
and equitable rights embodied therein or pertaining thereto, free
and clear of any and all rights and claims by the Uniview
Personnel or any third party, without further consideration or
action of either party or the Uniview Personnel.
5.4. Moral Rights. If Uniview or the persons included among the
Uniview Personnel has any rights to such HSBC Derivative Works
that cannot be assigned as described above, Uniview and each
person included among the Uniview Personnel (by execution of
appropriate documentation obtained by Uniview from such Uniview
Personnel) unconditionally and irrevocably (i) waives the
enforcement of such rights, and all claims and causes of action of
any kind against HSBC with respect to such rights, and agrees, at
HSBC's request and expense, to consent to join in any action to
enforce such rights, or (ii) in the case where such rights cannot
be assigned or waived, hereby grants to HSBC, during the term of
such rights, an exclusive, perpetual, irrevocable, worldwide,
intra-HSBC group transferable (but not otherwise transferable)and
royalty-free license to use, execute, display, perform, modify,
create Derivative Works of, and internally distribute and
reproduce such HSBC Derivative Works in any medium.
5.5. Assistance. Uniview shall and shall use its best efforts to
cause the Uniview Personnel to give to HSBC and any person
designated by HSBC all reasonable assistance to effectuate the
purposes of this Article 5, including executing all necessary
documents to assist and/or to enable HSBC Holdings plc to perfect,
preserve, register and/or record its rights in such HSBC
Derivative Works as contemplated by this Article 5.
6. PAYMENT TERMS
6.1. Fees Paid Under Agreement. Uniview acknowledges and agrees that
all license fees due for the Licensed Software previously licensed
under the Agreement have been paid in full by HSBC save in respect
of purchase orders dated or received by Uniview prior to the date
of this Amended Agreement and listed on Exhibit C attached hereto
and made a part hereof.
6.2. One-Time License Fee. The license fee for the Licensed Software
licensed under this Amendment (and which was not previously
licensed under the Agreement) is a one-time license fee of One
Million Three Hundred Thousand Dollars (US$1,300,000).
6.3. Payment. HSBC shall pay to Uniview the license fee set forth in
Section 6.2 above as follows: (a) Seventy (70%) Percent
(US$910,000) upon execution of this Amendment by both parties and
(b) Thirty (30%) Percent (US$390,000) ("Final Payment") at the
earlier of (i) completion of Verification to HSBC's satisfaction
(i.e. that the Verification has revealed that all of the Licensed
Software has been fully delivered to HSBC) or (ii) upon the
expiration of the Verification Period; provided, however, that the
Verification reveals that all of the Licensed Software has been
fully delivered to HSBC. In the event that the Verification
reveals that any portion of the Licensed Software has not been
delivered to HSBC, HSBC shall so notify Uniview and Uniview shall
promptly deliver such portion of the Licensed Software to HSBC.
HSBC shall not be required to make the Final Payment to Uniview
until such undelivered portion of the Licensed Software is
delivered to HSBC.
7. PERSONNEL
7.1. Hiring By HSBC. Uniview acknowledges and agrees that HSBC may,
at any time, directly or indirectly, solicit, offer employment,
employ, or engage any of the Uniview personnel listed on Exhibit B
attached hereto and made a part hereof ("Employees"). Uniview
hereby unconditionally and irrevocably waives, and shall cause its
affiliates, subsidiaries, divisions, and/or business units
(individually and collectively, "Uniview Affiliates") to
unconditionally and irrevocably waive, all claims and causes of
action of any kind against HSBC for HSBC's taking any of the
actions described in the preceding sentence
7.2. Non-Solicitation. Uniview agrees that in the event any of
the Employees are employed or engaged to perform services by
HSBC after the Effective Date, Uniview will not at any time
within two (2) years after the Effective Date, directly or
indirectly, solicit, offer employment, employ, or engage any
of such Employees.
8. SOFTWARE MAINTENANCE
8.1. Software Maintenance. From the Effective Date to the earlier of
(i) the date on which all of the Employees have either accepted or
rejected employment offers from HSBC or (ii) 31st March, 2002
("Maintenance Termination Date"), Uniview shall continue to
perform its Software Maintenance obligations under the Agreement,
which for the sake of clarity shall cover all of the Licensed
Software licensed under this Amendment. After the Maintenance
Termination Date, Uniview shall have no further obligation to
perform Software Maintenance except as provided in the remainder
of this Section. HSBC acknowledges and agrees that in no event
will HSBC be entitled to any refund of fees paid by HSBC to
Uniview for Maintenance Services for the period following the
Maintenance Termination Date. In the event HSBC requires software
maintenance and support services following the Maintenance
Termination Date, HSBC shall so notify Uniview and Uniview shall
promptly, but no later than fourteen (14) days after the request
from HSBC, respond to HSBC in writing with a price quotation for
the particular services requested, estimated time to complete the
services, and any travel or other charges that HSBC will incur in
connection with such services. If HSBC accepts such written
quote, HSBC shall sign the quote and such signed quote shall be an
"Order" for such services.
8.2. Other Services. Notwithstanding Section 8.1 of this Amendment,
Uniview shall continue to provide HSBC with any Technical
Assistance, Project Management, software development and any other
consultancy or professional services in accordance with the terms
of the Agreement at the fees set forth in Schedule 4 attached to
the Agreement, except as may otherwise be agreed by the parties in
writing.
9. GENERAL
9.1. Code. The parties specifically agree that they and any
trustee in bankruptcy shall abide by the terms of ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Code, Section 365(n).
9.2. Uniview hereby represents and warrants that prior to and upon
the Effective Date of the Amendment: (i) Uniview is solvent;
(ii) Uniview is adequately capitalized in light of its
anticipated business operations; and (iii)Uniview is paying
its debts as they become due (and currently has no reason to
believe that it will cease being able to do so).
9.3. Governing Law; Jurisdiction. The Amended Agreement will
be construed and enforced in accordance with the laws of the
State of New York, without giving effect to principles of
conflict of laws. Any litigation arising out of or connected
in any way with the Amended Agreement shall take place in a
State or Federal court of competent jurisdiction in New York
County, State of New York. The parties hereby agree that the
service of process or other papers upon either of them in
accordance with law at their respective addresses set forth
herein shall be deemed good, proper and effective service and
hereby expressly waive any defense based upon venue lack of
personal jurisdiction or forum non conveniens.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their authorized representatives as of the date set forth
above.
HSBC Holdings plc Uniview Softgen Corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------- ---------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Group IT Director Title: Chief Executive Officer
Date: December 20, 2001 Date: December 20, 2001
EXHIBIT A
LICENSED SOFTWARE
All object code and Source Code for the following:
1. All Operating Programs, Customized Software Developments, Further
Operating Programs and Further Customized Software Developments licensed
by and/or developed for HSBC under the Agreement (excluding HSBC
Derivative Works).
2. The following software, including but not limited to, all Customized
Software Developments, Further Customized Software Developments,
application libraries and Derivative Works developed by or on behalf of
Uniview relating to any of the following (excluding the HSBC Derivative
Works):
(a) CIMPhony Server
(b) ADRM
(c) Transaction Server 1 and 2
(d) Campaign Manager
(e) CIMPhony Select
(f) CIMWeb
(g) Screen Pop
(h) ACD Status Display
(i) Total Call Experience
(j) GUI Desktop
(k) CIMPhony System Monitor
(l) CIMPhony Agent Manager
(m) CTI Toolbar
(n) Tickerstats
(o) MeridienLink Support
(p) MLOIA Server
3. All Documentation relating to the foregoing
EXHIBIT B
UNIVIEW PERSONNEL
CTO, VP Operations, four engineers.
A
EXHIBIT C
SECTION 6.1 UNPAID FEES
$296,458.49