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EXHIBIT 10.17
ASSET PURCHASE AND LICENSE AGREEMENT
This Asset Purchase and License Agreement (this "AGREEMENT") is made
and entered into as of September 3, 1998, by and between Learning Company
Properties Inc. a Delaware corporation (the "BUYER") and Micrografx, Inc., a
Texas corporation (the "SELLER").
Preliminary Statement
The Buyer desires to acquire the rights to, and the Seller desires to
license and transfer, certain of the assets of the Seller related to Seller's
CreataCard product line, for the consideration set forth below, subject to the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereby agree as follows:
1. Sale and License of the Assets
1.1 Assets to be Licensed.
(a) Subject to and upon the terms and conditions of this Agreement at
the closing of the transactions contemplated by this Agreement (the "CLOSING"),
the Seller shall license the following properties to Buyer:
(i) License of Software Programs. Subject to the terms of this
Agreement, effective as of the Closing Date, Seller hereby grants to Buyer the
exclusive (other than existing OEM agreements), fully paid-up (when the Seller
receives the payment called for by Section 1.7(a)), perpetual right and license
to publish, use, reproduce, sublicense, translate and distribute the Software
Programs (defined below), including all documentation associated therewith.
Buyer shall have the exclusive (other than existing OEM agreements), fully
paid-up (when the Seller receives the payment called for by Section 1.7(a)),
perpetual right and license to publish, use, reproduce, sublicense, translate
and distribute the Software Programs in any media, for sale, resale and/or
license to end users, throughout the world, in all channels of trade unless
otherwise restricted under the Assumed Agreements (as hereinafter defined),
including, without limitation, (a) sales directly to end users, (b) sales
through resellers, dealers and distributors, (c) sales through arrangements with
original equipment manufacturers ("OEMS"), (d) sales through on-line services,
the Internet and other online channels and (e) sales in the educational channel.
Subject to the terms of this Agreement, the rights granted hereunder include all
marketing, production, retail, wholesale, television offer, direct mail and
telesales rights, and all other sales and distribution rights (other than
existing OEM
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* Denotes the omission of information pursuant to the request for confidential
treatment. The complete contract has been filed separately with the Securities
and Exchange Commission.
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agreements) for the Software Programs. The License granted is granted subject to
all the rights of American Greetings Corporation contained in the Assumed
Agreements and the obligations of the Seller thereunder are hereby assumed by
the Buyer. The "SOFTWARE PROGRAMS" shall mean Micrografx's rights in the one or
more software application programs now known as "CreataCard" and related family
of programs using the CreataCard name listed in Schedule 1.1 including the
Windows, MAC and all other platform and foreign language versions thereof
(including, without, limitation, the Carleton Cards product), and all related
documentation. The rights licensed herein shall expressly exclude the right to
prepare derivative works to the source code based on this license. Buyer shall
however have the right to prepare derivative works that do not require
modifications to the source code such as to create derivative versions based
upon modifications to screens, packaging, manuals, collateral materials,
modifications to the E-reg program, modifications to the "unlockables" programs,
and OEM and other similar derivative versions.
(ii) a non-exclusive, fully paid-up (when the Seller received
the payment called for by Section 1.7(a)), perpetual license to publish, use and
distribute any and all product content owned by Seller, demos, golden masters,
film, translation kits, and localized versions relating to the Software
Programs, any and all promotional and advertising materials, and a
non-exclusive, fully paid-up, perpetual license to use any confidential
information (to the extent owned by Seller) which has been reduced to writing
relating to the Software Programs;
(iii) a non-exclusive, perpetual, fully paid-up (when the
Seller receives the payment called for by Section 1.7(a)), license to publish,
use and distribute any and all web site materials relating to the Software
Programs to the extent owned by Seller; and
(iv) a non-exclusive, perpetual, fully paid-up (when the
Seller receives the payment called for by Section 1.7(a)) license to use in any
manner the list of all registered end users for each and every version of the
Software Program. For a period of * following the Closing Date, within 30 days
of the end of each calendar quarter, Seller shall provide Buyer with an updated
electronic list of new registered end users with the names and other information
described in Section 4(j) below.
1.2 Assets to be Purchased.
(a) Subject to and upon the terms and conditions of this Agreement, at
the Closing, the Seller shall transfer, convey, assign, deliver, and the Buyer
shall receive from the Seller, the following properties, assets and other
claims, rights and interests of the Seller:
(i) all executory contracts and agreements * attached hereto
including the * dated *, as amended * and *, as amended, entered into thereunder
as amended, and in their entirety (collectively, the "ASSUMED AGREEMENTS"),
which an affiliate of Buyer (Mindscape, Inc.) * by execution hereof; and
(ii) all rights in and to the gold master CD and film for each
version of the Software Programs (including any collateral materials required
for Buyer to manufacture the Software Programs), the packaging, manuals, CD ROM
inserts, other inserts, the "unlockable"
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collateral materials, and transkits for each version of the software and any
rights of the Seller in the trade dress to the Software Programs (collectively,
the "INTANGIBLE PROPERTY").
(b) The Software Programs, Intangible Property and other properties,
assets and business of the Seller described in paragraph (a) above shall be
referred to collectively as the "ASSETS."
(c) Buyer shall have the right to modify any of the Assets, to the
extent owned by Seller (except as provided in the last two sentences of Section
1.1(a)(i)).
1.3 Inventory, Purchase and Sale of Inventory by Buyer, and Returns.
(a) Effective as of September 1, 1998, Seller and its
distributors (other than under the existing OEM agreements) shall have ceased
fulfilling any and all unfulfilled purchase orders it receives for the Software
Programs and Seller shall forward to Buyer all such open purchase orders at the
Closing. On the Closing Date, Seller shall assign to Buyer any and all inventory
of the Software Programs identified on Schedule 2.5. Promptly following the
Closing Date, Seller shall ship, at Buyer's expense, such inventory to Buyer
pursuant to Buyer's written instructions. Buyer shall remove Seller's
"MICROGRAFX" logos from such inventory as soon as commercially practicable. It
is however expressly agreed that Buyer may market and sell such inventory and
sell sheets with the "MICROGRAFX" logo for a commercially practicable period of
time.
(b) The channel inventory as of the Closing Date and wholesale
costs are set forth by account on Schedule 2.5 attached hereto. Seller shall be
liable to Buyer for returns to the extent that channel inventory of the Software
Programs sold by Seller exceed a maximum of * as set forth in Schedule 2.5 as of
the Closing Date. Seller shall indemnify Buyer for any and all Software Program
channel inventory, but only if and to the extent that channel inventory is in
excess of the amounts described in Schedule 2.5. Any indemnification payments
under this Section 1.3(b) shall be made by Seller to Buyer within * days from
the date of such excess channel returns or, at Buyer's option, Buyer may take a
credit against any of the payments owing to Seller hereunder including those set
forth in Section 1.7 hereof, provided such sums are not in dispute.
(c) Buyer shall be responsible for all product returns
associated with the Software Programs arising from and after the Closing Date,
including, stock balances, defective product returned pursuant to the published
warranty, price protection related returns. Seller shall remain liable for any
bad debt relating to the Software Programs shipped prior to the Closing Date.
Buyer shall be responsible for marketing development funds ("MDF") presently
existing for versions 1.0, 2.0 and 3.0 of the CreataCard Software Program not to
exceed * as set forth on Schedule 1.3(c), and all MDF commitments initiated by
the Seller arising after the Closing Date for CreataCard Software Programs
shipped prior to the Closing Date not to exceed * as set forth on Schedule
1.3(c). Seller shall be liable for MDF in excess of such respective * and *
amounts and shall indemnify Buyer for such amounts. Any such indemnification
payments under this Agreement shall be paid to Buyer within * days of demand.
(d) Seller shall retain all responsibility for redeeming
coupon rebates for the Software Programs in connection with the promotional
program being administered by Continental Promotions or any other party for
sales of the Software Programs into the retail channel prior to the Closing
Date.
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(e) Notwithstanding any other provision in any other
agreement, Seller hereby acknowledges and agrees that Buyer has full discretion
with respect to the marketing of the Software Programs, subject however to the
approval rights of American Greetings Corporation contained in separate
agreements which the Buyer hereby acknowledges, and that any approval or review
rights that Seller may have under any agreement are hereby waived and
terminated.
1.4 No Liabilities. Except as set forth in Sections 1.1(a)(i),
1.2(a)(i) and 1.3 above, the Buyer shall assume no liabilities, obligations or
agreements of the Seller whatsoever and the Seller shall remain responsible for,
and shall indemnify the Buyer against, all such liabilities, obligations and
agreements, as set forth in Section 6 hereof.
1.5 Excluded Assets. Notwithstanding anything in Section 1.1 or 1.2 to
the contrary, the Assets shall not include (i) any assets associated with
Seller's other software products or (ii) the assets identified on Schedule 1.5
attached hereto or (iii) ownership of source code and other code and
intellectual property rights in the underlying Software Programs not explicitly
licensed or transferred hereunder (the "EXCLUDED ASSETS").
1.6 Further Assurances. At any time and from time to time after the
Closing, at the Buyer's request and without further consideration, the Seller
promptly shall execute and deliver such instruments of sale, transfer,
conveyance, assignment and confirmation, and take such other action, as the
Buyer may reasonably request to more effectively transfer, convey and assign to
the Buyer, and to confirm the Buyer's rights herein granted to, all of the
Assets, to put the Buyer in actual possession and operating control thereof, to
assist the Buyer in exercising all rights with respect thereto and to carry out
the purpose and intent of this Agreement. Without limiting the foregoing, from
the date of execution of this Agreement until the Closing Date, the Buyer and
Seller shall each use reasonable best efforts to obtain all required consents
and approvals, including the consent of American Greetings Corporation, required
in order for Seller to consummate the transactions contemplated by this
Agreement.
1.7 Purchase Price.
(a) The purchase price for the Assets shall be * (the
"PURCHASE PRICE"). The Purchase Price shall be paid to Seller on January 5, 1999
in cash by wire transfer.
(b) Seller may assign its rights to receive payment of the
Purchase Price and the rights of enforcement to a third party without notice or
Buyer's consent. Buyer agrees to reasonably cooperate with Seller in order to
facilitate such a "factoring" transaction. Buyer and Seller agree to expressly
pay * of all discounts and transaction related costs associated with respect to
a factoring transaction with Sanwa Bank (or another mutually agreed upon
financial institution).
1.8 The Closing. The Closing shall take place at the offices of Buyer
on or before September 3, 1998 or at such other place, time or date (in person
or by fax) as may be mutually agreed upon in writing by the parties hereto. The
transfer of the Assets by the Seller to the Buyer shall be deemed to occur at
1:30 p.m., Boston time, on the date of the Closing (the "CLOSING DATE"). Except
as required by law, neither party shall make a public announcement of said asset
transfer until the other party approves in writing the timing and text of such
announcement.
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1.9 Press Releases. Either party may issue a press release relating to
the transactions contemplated under this Agreement, subject to the approval of
the other party which shall not be unreasonably withheld.
2. Representations and Warranties of the Seller
The Seller represents and warrants to the Buyer as follows:
2.1 Organization. The Seller is a corporation duly organized, validly
existing and in good standing under the laws of the state of its incorporation,
and has all requisite power and authority (corporate and other) to own its
properties, to carry on its business as now being conducted, to execute and
deliver this Agreement and the agreements contemplated herein, and to consummate
the transactions contemplated hereby. The Seller is qualified to do business and
is in good standing in all jurisdictions in which its ownership of property or
the character of its business requires such qualification.
2.2 Authorization.
(a) The execution and delivery of this Agreement by the Seller, and the
agreements provided for herein, and the consummation by the Seller of all
transactions contemplated hereby, have been duly authorized by all requisite
corporate action. This Agreement and all such other agreements and obligations
entered into and undertaken in connection with the transactions contemplated
hereby to which the Seller is a party constitute the valid and legally binding
obligations of the Seller, enforceable against the Seller in accordance with
their respective terms. The execution, delivery and performance by the Seller of
this Agreement and the agreements provided for herein, and the consummation by
the Seller of the transactions contemplated hereby and thereby, will not, with
or without the giving of notice or the passage of time or both, (a) violate the
provisions of any law, rule or regulation applicable to the Seller; (b) violate
the provisions of the Certificate of Incorporation or By-laws of the Seller; (c)
violate any judgment, decree, order or award of any court, governmental body or
arbitrator; or (d) conflict with or result in the breach or termination of any
term or provision of, or constitute a default under, or cause any acceleration
under, or cause the creation of any lien, charge or encumbrance upon the
properties or assets of the Seller pursuant to, any indenture, mortgage, deed of
trust or other instrument or agreement to which the Seller is a party or by
which the Seller or any of its properties is or may be bound; provided, however,
assignment of the Assumed Agreements with American Greetings Corporation to
Buyer requires the consent of American Greetings Corporation.
(b) Schedule 2.2(b)(i) attached hereto sets forth a true, correct and
complete list of (i) all material contracts which relate to the Software
Programs, (ii) all consents and approvals of third parties that are required in
connection with the consummation by the Seller of the transactions contemplated
by this Agreement (it being understood that Buyer shall not be bound from and
after the Closing by any agreements to which Seller is a party other than those
agreements listed on Schedule 1.2(a)(i)), and (iii) all royalties, advances
against royalties and other fees or amounts owed to third parties relating to
the Software Programs except amounts payable to American Greetings Corporation.
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(c) Schedule 2.2(c) attached hereto sets forth a true, correct and
complete list of all OEM, license and distribution agreements or other similar
agreements of any kind with respect to the Software Programs. Seller has not
entered into any OEM, license or distribution agreement or other similar
agreements of any kind with respect to the Software Programs except as
specifically identified on Schedule 2.2(c) attached hereto. Seller has not
entered into any OEM, license or distribution agreement that grants a third
party any exclusive or worldwide distribution rights in any channel to the
Software Programs other than (i) the rights of American Greetings Corporation
under the Assumed Agreements, (ii) a distribution agreement with Cendant
Corporation which Seller agrees to terminate on or before the Closing date, and
(iii) the OEM Agreements listed on Schedule 2.2(c).
2.3 Ownership of the Assets. Schedule 2.3 attached hereto sets forth a
true, correct and complete list of all claims, liabilities, liens, pledges,
charges, encumbrances and equities of any kind affecting the Assets
(collectively, the "ENCUMBRANCES"). The Seller is, and at the Closing will be,
the true and lawful owner of the Assets, and will have the right to sell and
transfer to the Buyer good, clear, record and marketable title to the Assets,
free and clear of all Encumbrances of any kind. The delivery to the Buyer of the
instruments of transfer of ownership contemplated by this Agreement will vest
good and marketable title to the Assets in the Buyer, free and clear of all
liens, mortgages, pledges, security interests, restrictions, prior assignments,
encumbrances and claims of any kind or nature whatsoever.
2.4 Litigation and Claims. Except as disclosed on Schedule 2.4 attached
hereto, the Seller is not a party to, or to the Seller's best knowledge
threatened with, and none of the Assets are subject to, any litigation, suit,
action, investigation, proceeding or controversy before any court,
administrative agency or other governmental authority relating to or affecting
the Assets. The Seller is not in violation of or in default with respect to any
judgment, order, writ, injunction, decree or rule of any court, administrative
agency or governmental authority or any regulation of any administrative agency
or governmental authority relating to the Assets.
2.5 Inventory. Schedule 2.5 attached hereto sets forth a true, correct
and complete list of the inventory of the Software Programs (including
quantities of each SKU thereof) as of the Closing Date, separated into one list
for Seller's inventory on hand and a another list for field inventory, by
customer and SKU.
2.6 Trade Names and Other Intangible Property.
(a) Schedule 2.6 attached hereto sets forth a true, correct
and complete list and, where appropriate, a description of, all Intangible
Property. True, correct and complete copies of all licenses and other agreements
relating to the Intangible Property have been previously delivered by the Seller
to the Buyer.
(b) Except for material licensed to Seller under the Assumed
Agreements and the Excluded Assets, the Seller is the sole and exclusive owner
of the Software Programs and the Intangible Property and all designs, permits,
labels and packages used on or in connection therewith, and no third party has,
or has asserted, any rights to the Software Programs or the Intangible Property
(except to the extent the underlying technology has been licensed to others) or
which may
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adversely affect the rights of the Buyer. To the best of Seller's knowledge, the
Software Programs and the Intangible Property do not infringe on any United
States trademark, trade name, copyright or other proprietary right of any third
party. The Seller has no disputes with or claims against any third party for
infringement by such third party of any trade name or other Intangible Property
of the Seller included in the Assets. The Seller has taken all steps reasonably
necessary to protect its right, title and interest in and to the Intangible
Property.
2.7 Regulatory Approvals. All consents, approvals, authorizations and
other requirements prescribed by any law, rule or regulation which must be
obtained or satisfied by the Seller and which are necessary for the execution
and delivery by the Seller of this Agreement and the documents to be executed
and delivered by the Seller in connection herewith have been obtained and
satisfied.
2.8 Version 3.0 of CreataCard Gold and CreataCard Plus. Seller
represents and warrants to Buyer that Version 3 of CreataCard Gold and Version 3
of CreataCard Plus Programs have been delivered to American Greetings and that
such programs will perform according to the attached specifications.
3. Representations and Warranties of the Buyer
The Buyer represents and warrants to the Seller as follows:
3.1 Organization. The Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the state of its corporation,
and has the requisite power and authority (corporate and other) to own its
properties and to carry on its business as now being conducted.
3.2 Authorization. The Buyer has full corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this Agreement by
the Buyer, and the agreements provided for herein, and the consummation by the
Buyer of all transactions contemplated hereby, have been duly authorized by all
requisite corporate action. This Agreement and all such other agreements and
written obligations entered into and undertaken in connection with the
transactions contemplated hereby constitute the valid and legally binding
obligations of the Buyer, enforceable against the Buyer in accordance with their
respective terms. The execution, delivery and performance of this Agreement and
the agreements provided for herein, and the consummation by the Buyer of the
transactions contemplated hereby and thereby, will not, with or without the
giving of notice or the passage of time or both, (a) violate the provisions of
any law, rule or regulation applicable to such party; (b) violate the provisions
of the Certificate of Incorporation or By-laws of Buyer; (c) violate any
judgment, decree, order or award of any court, governmental body or arbitrator;
or (d) conflict with or result in the breach or termination of any term or
provision of, or constitute a default under, or cause any acceleration under, or
cause the creation of any lien, charge or encumbrance upon the properties or
assets of the Buyer pursuant to, any indenture, mortgage, deed of trust or other
agreement or instrument to which it or its properties is a party or by which the
Buyer is or may be bound.
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3.5 Regulatory Approvals. All consents, approvals, authorizations and
other requirements prescribed by any law, rule or regulation which must be
obtained or satisfied by the Buyer and The Learning Company and which are
necessary for the consummation of the transactions contemplated by this
Agreement have been obtained and satisfied.
3.6 Disclosure. No representation or warranty by the Buyer in this
Agreement contains or will contain any untrue statement of a material fact known
by Buyer on the Closing Date or omits or will omit any material fact known by
Buyer on the Closing Date necessary in order to make the statements contained
therein and herein not misleading.
4. Conditions to Obligations of the Buyer
The obligations of the Buyer under this Agreement are subject to the
fulfillment, at the Closing Date, of the following conditions precedent, each of
which may be waived in writing in the sole discretion of the Buyer:
4.1 Continued Truth of Representations and Warranties of the Seller;
Compliance with Covenants and Obligations. The representations and warranties of
the Seller shall be true on and as of the Closing Date as though such
representations and warranties were made on and as of such date, except for any
changes permitted by the terms hereof or consented to in writing by the Buyer.
The Seller shall have performed and complied with all terms, conditions,
covenants, obligations, agreements and restrictions required by this Agreement
to be performed or complied with by it prior to or at the Closing Date.
4.2 Corporate Proceedings. All corporate and other proceedings required
to be taken on the part of the Seller to authorize or carry out this Agreement
and to convey, assign, transfer and deliver the Assets shall have been taken.
4.3 Governmental Approvals. All governmental agencies, departments,
bureaus, commissions and similar bodies, the consent, authorization or approval
of which is necessary under any applicable law, rule, order or regulation for
the consummation by the Seller of the transactions contemplated by this
Agreement and the operation of the Seller's business as it relates to the Assets
by the Buyer shall have consented to, authorized, permitted or approved such
transactions.
4.4 Consents of Lenders, Lessors, Licensors and Other Third Parties.
The Seller shall have received all requisite consents and approvals of American
Greetings Corporation, all lenders, lessors, Licensors and other third parties
whose consent or approval is required in order for the Seller to consummate the
transactions contemplated by this Agreement, including, without limitation,
those set forth on Schedule 2.2(b)(ii) attached hereto.
4.5 Adverse Proceedings. No action or proceeding by or before any court
or other governmental body shall have been instituted or threatened by any
governmental body or person whatsoever which shall seek to restrain, prohibit or
invalidate the transactions contemplated by this Agreement or which might affect
the right of the Buyer to own or use the Assets after the Closing.
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4.6 The Assets. At the Closing the Buyer shall receive good, clear,
record and marketable title to the Intangible Property, free and clear of all
liens, liabilities, security interests and encumbrances of any nature whatsoever
other than as contemplated by the Assumed Agreements.
4.7 Closing Deliveries. The Buyer shall receive within five (5)
business days of the Closing Date each of the following:
(a) the assignments of the Assumed Agreements identified on
Schedule 1.2(a)(i), in form reasonably satisfactory to the Buyer;
(b) technical data, product literature and other documentation
relating to the Seller's greeting card software business as it relates to the
Assets;
(c) such contracts, files and other data and documents
pertaining to the Assets as the Buyer may reasonably request;
(d) a certificate of the Secretary of the Seller attesting to
the incumbency of the Seller's officers, respectively, and the authenticity of
the resolutions authorizing the transactions contemplated by the Agreement;
(e) required consents from those parties identified on
Schedules 2.2;
(f) masters of the Software Programs and related collateral
materials including artwork for packaging and marketing materials, film,
translation kits, website materials via an electronic media transfer; and
(g) a list of "frequently asked questions" to technical
support and customer support relating to the Software Programs;
(h) a list on electronic tape of all registered end users for
each and every version of the Software Programs, including all
biographical, product and credit card related information; and
(i) such other documents, instruments or certificates as the
Buyer may reasonably request.
5. Conditions to Obligations of the Seller
The obligations of the Seller under this Agreement are subject to the
fulfillment, at the Closing Date, of the following conditions precedent, each of
which may be waived in writing at the sole discretion of the Seller:
5.1 Continued Truth of Representations and Warranties of the Buyer;
Compliance with Covenants and Obligations. The representations and warranties of
the Buyer in this Agreement shall be true on and as of the Closing Date as
though such representations and warranties were made on and as of such date,
except for any changes consented to in writing by the Seller. The Buyer shall
have performed and complied with all terms, conditions, obligations, agreements
and restrictions required by this Agreement to be performed or complied with by
it prior to or at the Closing Date.
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5.2 Corporate Proceedings. All corporate and other proceedings required
to be taken on the part of the Buyer to authorize or carry out this Agreement
shall have been taken.
5.3 Governmental Approvals; Consents. All governmental agencies,
departments, bureaus, commissions and similar bodies, the consent, authorization
or approval of which is necessary under any applicable law, rule, order or
regulation for the consummation by the Buyer of the transactions contemplated by
this Agreement shall have consented to, authorized, permitted or approved such
transactions. All consents from those parties listed on Schedule 2.2 shall have
been obtained. The parties listed on Schedule 1.2(a)(i) shall have released
Seller from all obligations under the Assumed Agreements, including without
limitation, American Greetings Corporation shall have terminated Seller's
obligations to it under all Assumed Agreements.
5.4 Adverse Proceedings. No action or proceeding by or before any court
or other governmental body shall have been instituted or threatened by any
governmental body or person whatsoever which shall seek to restrain, prohibit or
invalidate the transactions contemplated by this Agreement or which might affect
the rights of Seller contemplated by this Agreement.
5.5 Adverse Proceedings. No action or proceeding by or before any court
or other governmental body shall have been instituted or threatened by any
governmental body or person whatsoever which shall seek to restrain, prohibit or
invalidate the transactions contemplated by this Agreement or which might affect
the right of the Seller to transfer the Assets.
5.6 Closing Deliveries. The Seller shall have received at the Closing
each of the following documents:
(a) such documents, instruments or certificates as
the Seller may reasonably request; and
(b) the payment from Buyer of the Purchase Price
shall have been received by Seller.
6. Indemnification
6.1 Scope. For a period of five (5) years from the Closing Date, Seller
hereby indemnifies and holds harmless Buyer against all claims, damages, losses,
liabilities, costs and expenses (including, without limitation, settlement costs
and any reasonable legal, accounting or other expenses for defending any actions
or threatened actions) reasonably incurred by Buyer in connection with each and
all of the following:
(a) Any breach by the Seller of any representation or warranty
in this Agreement;
(b) Any breach of any covenant, agreement or obligation of the
Seller contained in this Agreement or any other agreement, instrument or
document contemplated by this Agreement;
(c) Any liabilities or obligations of the Seller or relating
to the Assets not disclosed herein;
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(d) The failure of the Buyer to obtain the protections
afforded by compliance with the notification and other requirements of the bulk
sales laws in force in the jurisdictions in which such laws may be applicable to
either the Seller or the transactions contemplated by this Agreement;
(e) Any intellectual property or other proprietary claim
relating to Software Programs;
(f) Any tax liabilities or obligations of the Seller; and
(g) any claim brought by Cendant Corporation or any of its
affiliates or successors relating to the Software Programs or the distribution
rights thereto.
6.2 Claims for Indemnification. Whenever any claim shall arise for
indemnification hereunder the Buyer (the "INDEMNIFIED PARTY"), shall promptly
notify the Seller (the "INDEMNIFYING PARTY") of the claim and, when known, the
facts constituting the basis for such claim. In the event of any such claim for
indemnification hereunder resulting from or in connection with any claim or
legal proceedings by a third party, the notice to the Indemnifying Party shall
specify, if known, the amount or an estimate of the amount of the liability
arising therefrom. The Indemnified Party shall not settle or compromise any
claim by a third party for which it is entitled to indemnification hereunder
without the prior written consent of the Indemnifying Party, which shall not be
unreasonably withheld.
6.3 Defense by Indemnifying Party. In connection with any claim giving
rise to indemnity hereunder resulting from or arising out of any claim or legal
proceeding by a person who is not a party to this Agreement, the Indemnifying
Party at its sole cost and expense may, upon written notice to the Indemnified
Party, assume and control the defense of any such claim or legal proceeding. The
Indemnified Party shall be entitled to participate in (but not control) the
defense of any such action, with its counsel and at its own expense. If the
Indemnifying Party does not assume the defense of any such claim or litigation
resulting therefrom within 30 days after the date such claim is made, (a) the
Indemnified Party may defend against such claim or litigation, in such manner as
it may deem appropriate, including, but not limited to, settling such claim or
litigation, after giving notice of the same to the Indemnifying Party, on such
terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying
Party shall be entitled to participate in (but not control) the defense of such
action, with its counsel and at its own expense.
7. Post-Closing Agreements
7.1 Non-Competition Agreement.
(a) Following the Closing Date neither the Seller nor any
affiliate thereof shall develop, market or sell any product containing any
content from American Greetings or under the American Greetings trademark and
brand, the CreataCard trademark, the ▇▇▇▇ ▇▇▇▇▇ trademark or any confusingly
similar brand or name that competes with the Software Programs. Buyer agrees
that (i) the development, licensing, marketing or selling, or (ii) the licensing
of any of Seller's technology to a third party for use in connection with the
12
development, marketing or selling, of a greeting card or social expression
product that does not violate the foregoing will not be a violation of this
Section 7.1.
(b) The parties hereto agree that the duration and geographic
scope of the non-competition provision set forth in this Section 7.1 are
reasonable. In the event that any court determines that the duration or the
geographic scope, or both, are unreasonable and that such provision is to that
extent unenforceable, the parties hereto agree that the provision shall remain
in full force and effect for the greatest time period and in the greatest area
that would not render it unenforceable. The parties intend that this
non-competition provision shall be deemed to be a series of separate covenants,
one for each and every county of each and every state of the United States of
America and each and every political subdivision of each and every country
outside the United States of America where this provision is intended to be
effective. The Seller agrees that damages are an inadequate remedy for any
breach of this provision and that the Buyer shall, whether or not it is pursuing
any potential remedies at law, be entitled to equitable relief in the form of
preliminary and permanent injunctions without bond or other security upon any
actual or threatened breach of this non-competition provision.
7.2 Sharing of Data.
(a) The Buyer shall have the right for a period of four (4)
years following the Closing Date to have reasonable access, at Buyer's expense
and during normal business hours, to those books, records and accounts,
including financial and tax information, correspondence, production records, and
other records which are retained by the Seller pursuant to the terms of this
Agreement to the extent that any of the foregoing relates to the Assets of the
Seller transferred to the Buyer hereunder or is otherwise needed by the Buyer in
order to comply with its obligations under applicable securities, tax, or other
laws and regulations.
(b) The Seller and the Buyer agree that from and after the
Closing Date they shall cooperate fully with each other to facilitate the
transfer of the Assets from the Seller to the Buyer and the operation thereof by
the Buyer.
7.3 Use of Names and Trade Dress. The Seller agrees not to use the
names "CREATACARD" and "AMERICAN GREETINGS" or any confusingly similar
derivation thereof or any confusingly similar trade dress from any of the
Software Programs after the Closing Date in connection with any business related
to, or competitive with the greeting card software application business
conducted by the Seller on the date hereof. Except as specifically permitted by
this Agreement, the Buyer agrees not to use the name "MICROGRAFX" after the
Closing Date in connection with any business related to, competitive with, or an
outgrowth of, the business conducted by the Seller on the date hereof.
7.4 Training. The Seller shall provide * of training and transition
engineering to Buyer at no charge prior to *. Any training in excess of * hours
will be at the mutual agreement of the parties and shall be at an hourly rate to
be determined by dividing the employee's documented annual salary and benefits
by the documented number of hours that such employee works on the project. If
Buyer desires to have the training identified in this Section 7.6 performed at
Buyer's site, Buyer shall be responsible for all reasonable transportation,
lodging and meal costs for Seller's employees, except that Seller agrees that
Buyer shall not be obligated
13
to pay any such costs if such training occurs within fifty (50) miles of
Seller's location. At Buyer's request, Seller shall perform modifications to any
of the versions of the source code of the Software Programs, including, without
limitation, an OEM v2.3 version, and modifications to the "unlockables" in the
Software Programs or other reasonable requests up to *.
7.5 End User Support. The Seller shall provide all technical support
and customer service support to the end Users of the Software Programs until *
irrespective of whether Buyer or Seller sold such Software Programs. Commencing
*, Buyer shall provide all technical support and customer service support to the
end Users of the Software Programs. Seller shall provide at least five (5) days
of training to the Buyer in the areas of such support. In the event that Buyer
desires to have the training identified in this Section 7.5 be performed at
Buyer's site, then Buyer shall be responsible for reasonable transportation
costs and allocable out-of-pocket portion of the salary of its technical support
personnel providing the training contemplated under this Section 7.5. After *,
Seller agrees to forward all such technical and customer support calls to Buyer
pursuant to Buyer's written instructions.
7.6 Non-Solicitation. For a period of * from the Closing Date, neither
Buyer nor Seller (including such parties' affiliates or partners) shall not
solicit for employment or employ any employee of the other party.
7.7 Management of ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Web Site. The Seller shall continue to
manage the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ web site until * at which ▇▇▇▇ ▇▇▇▇▇▇ transfer
management of this web site to Buyer and Buyer shall commence management of the
site. At Buyer's request, Seller shall establish one or more links from such
▇▇▇▇▇▇▇▇▇▇.▇▇▇ site to site(s) designated by Buyer.
7.8 "Unlockable" Revenue. All revenue received by Seller from the
content "unlockables" shall be paid to Buyer within 30 days of the quarter in
which such amounts are received (other than any such revenue from the existing
OEM agreements which shall belong to Seller.)
8. Transfer and Sales Tax
Notwithstanding any provisions of law imposing the burden of such taxes
on the Seller or the Buyer, as the case may be, the Seller shall be responsible
for and shall pay (a) all sales, use and transfer taxes, and (b) all
governmental charges, if any, upon the transfer of any of the Assets hereunder.
9. Brokers
9.1 For the Seller. The Seller represents and warrants that it has not
engaged any broker or finder or incurred any liability for brokerage fees,
commissions or finder's fees in connection with the transactions contemplated by
this Agreement. The Seller agrees to indemnify and hold harmless the Buyer
against any claims or liabilities asserted against it by any person acting or
claiming to act as a broker or finder on behalf of the Seller.
14
9.2 For the Buyer. The Buyer agrees to pay all fees, expenses and
compensation owed to any person, firm or corporation who has acted in the
capacity of broker or finder on its behalf in connection with the transactions
contemplated by this Agreement. The Buyer agrees to indemnify and hold harmless
the Seller against any claims or liabilities asserted against it by any person
acting or claiming to act as a broker or finder on behalf of the Buyer.
10. Miscellaneous.
10.1 Notices
Any notices or other communications required or permitted hereunder
shall be sufficiently given if delivered personally or sent by telex, federal
express, registered or certified mail, postage prepaid, addressed as follows or
to such other address of which the parties may have given notice:
If to Seller: If to Buyer:
Attention: ▇▇▇▇ ▇▇▇▇▇, Chief Executive
Officer
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mindscape, Inc.
Chief Executive Officer
Micrografx, Inc. ▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Copy of Notices to: Copy of Notices to:
Legal Department Legal Department
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ The Learning Company
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Unless otherwise specified herein, such notices or other communications
shall be deemed received (a) on the date delivered, if delivered personally; or
(b) five business days after being sent, if sent by registered or certified
mail.
10.1 Successors and Assigns
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, except that the
Buyer and the Seller may not assign any or all their respective rights or
obligations hereunder without the prior written consent of the other party;
provided, however, that the Buyer may assign this Agreement, and its rights and
obligations hereunder, to a subsidiary or affiliate provided, the Buyer should
remain liable for the payment obligations under Section 1.7(a), or by either
Buyer or Seller upon the merger of the party or the sale of all or substantially
all of Buyer's business, all without the consent of Seller, upon providing
notice to Seller. Any assignment in contravention of this provision shall be
void.
15
10.2 Entire Agreement; Amendments; Attachments
(a) This Agreement, all Schedules and Exhibits hereto, and all
agreements and instruments to be delivered by the parties pursuant hereto
represent the entire understanding and agreement between the parties hereto with
respect to the subject matter hereof and supersede all prior oral and written
and all contemporaneous oral negotiations, commitments and understandings
between such parties. The Buyer and the Seller, by the consent of their
respective Boards of Directors, or officers authorized by such Boards, may amend
or modify this Agreement, in such manner as may be agreed upon, by a written
instrument executed by the Buyer and the Seller.
(b) If the provisions of any Schedule or Exhibit to this Agreement are
inconsistent with the provisions of this Agreement, the provision of the
Agreement shall prevail. The Exhibits and Schedules attached hereto or to be
attached hereafter are hereby incorporated as integral parts of this Agreement.
10.3 Expenses
Except as otherwise expressly provided herein, the Buyer and the Seller
shall each pay their own expenses in connection with this Agreement and the
transactions contemplated hereby.
10.4 Governing Law
This Agreement shall be governed by and construed in accordance with
the laws of Delaware.
10.5 Section Headings
The section headings are for the convenience of the parties and in no
way alter, modify, amend, limit, or restrict the contractual obligations of the
parties.
10.6 Severability
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement.
10.7 Counterparts
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which shall be one and the
same document.
10.8 Confidentiality of Agreement
The terms of this Agreement shall be kept confidential and shall not be
disclosed to any third party (except for the Press Release contemplated above or
unless such disclosure is required by law).
16
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
signed under seal as of the date first set forth above.
LEARNING COMPANY PROPERTIES INC. MICROGRAFX, INC.
By: /s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------- ------------------------------
R. ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Executive Vice President and Title: Chief Executive Officer
Chief Financial Officer
As to Section 1.2(a)(i)
MINDSCAPE, INC.
By: /s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
R. ▇▇▇▇▇ ▇▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
17
SCHEDULE 1.1
CREATACARD PRODUCT LIST
The Software Programs shall include the entire CreataCard software
product line consisting of each and every version and derivative of the software
programs now known as CreataCard, including, without limitation, the attached
list of programs.
18
CREATACARD PRODUCT LISTING
------------------------------------------------------------------------------------------------------------------------------------
PRODUCT SHIP DATE PRIMARY DISTRIBUTION COUNTRY NOTES UNLOCK PACKS
------------------------------------------------------------------------------------------------------------------------------------
AG CreataCard Plus Version 1.0 International Sep-96 Retail Outside US/Canada None
AG CreataCard Gold Version 1.0 English ▇▇▇-▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ None
AG CreataCard Gold Version 1.0 International Mar-97 Retail Outside US/Canada None
AG CreataCard Plus Version 2.0 English Sep-97 Retail US, Canada 16 packs
AG CreataCard Gold Version 2.0 English Sep-97 Retail US, Canada 16 packs
Carlton CreataCard Gold Version 2.0 Sep-97 Retail UK 7 packs
International
AG CreataCard Gold Version 2.0 International Sep-97 Retail Outside US/Canada 7 packs
AG CreataCard Gold Version 2.0 Walmart ▇▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ Box Change Only 16 packs
AG CreataCard Plus Version 2.0 Walmart ▇▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ Box Change Only 16 packs
AG CreataCard Plus Version 2.1 English ▇▇▇-▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ 22 packs
AG CreataCard Gold Version 2.1 English ▇▇▇-▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ 22 packs
Carlton CreataCard Gold Version 2.1 Mar-98 Retail UK 11 packs
International
AG CreataCard Gold Version 2.1 International Mar-98 Retail Outside US/Canada 11 packs
AG CreataCard Gold Version 2.1 Walmart ▇▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ Box Change Only 22 packs
AG CreataCard Plus Version 2.1 Walmart ▇▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ Box Change Only 22 packs
AG CreataCard Plus 2.1 Upgrade Mar-98 Current 2.0 Customers US, Canada 22 packs
AG CreataCard Gold 2.1 Upgrade Mar-98 Current 2.0 Customers US, Canada 22 packs
AG CreataCard Internet Edition Version 1.0 Jan-97 Internet - Free 0 packs
AG CreataCard Internet Edition Version 2.0 Oct-97 Internet - Free Spring/Fall 0 packs
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
PROPOSED PRODUCT SHIP DATE PRIMARY DISTRIBUTION COUNTRY NOTES UNLOCK PACKS
------------------------------------------------------------------------------------------------------------------------------------
AG CreataCard Plus Version 3.0 English Sep-98 Retail US, Canada 31 packs
AG CreataCard Gold Version 3.0 English Sep-98 Retail US, Canada 30 packs
Carlton CreataCard Gold Version 3.0 International Sep-98 Retail UK 18 packs
AG CreataCard Gold Version 3.0 International Sep-98 Retail Outside US/Canada 18 packs
AG CreataCard Gold Version 3.0 Walmart ▇▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ Box Change Only 30 packs
AG CreataCard Plus Version 3.0 Walmart ▇▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ Box Change Only 30 packs
------------------------------------------------------------------------------------------------------------------------------------
Note: Seller shall only be required to deliver the version 3.0 Golden Master at
the closing. Seller shall deliver any other versions upon request of Buyer.
19
SCHEDULE 1.2(A)(I)
ASSUMED AGREEMENTS
1. Master Agreement between American Greetings Corporation ("AG") and
Seller, dated February 9, 1996, as amended April 1, 1997.
2. Centerpiece Product, Subagreement A, between American Greetings
Corporation ("AG") and Seller, dated February 9, 1996, as amended April
1, 1997.
3. Design Packs, Subagreement B, between American Greetings Corporation
("AG") and Seller, dated February 9, 1996, as amended April 1, 1997.
4. Micrografx Remote Fulfillment Software, Subagreement D, between
American Greetings Corporation ("AG") and Seller, dated April 1, 1997.
5. Centerpiece Japan Product, Subagreement E, between American Greetings
Corporation ("AG") and Seller, dated April 1, 1997.
20
SCHEDULE 1.2(C)
MDF COMMITMENTS
To be provided by Seller.
21
------------------------------------------------------------------------------------------------------------------------------------
CAC PHASE OUT COMMITMENTS
------------------------------------------------------------------------------------------------------------------------------------
* * * Promo Date Activity Products Agreement Comments Add'l Comments
------------------------------------------------------------------------------------------------------------------------------------
* * * 8/1/98 End Cap AG CAC Plus V2.0 AG CAC Yes Phase Out/Signed Agreed to per contract
Gold V2.0
------------------------------------------------------------------------------------------------------------------------------------
TOTAL * *
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
* * 8/1/98 End Cap AG CAC Plus V2.0 Yes Phase Out/Signed *
------------------------------------------------------------------------------------------------------------------------------------
* * 8/1/98 Instant AG CAC Plus V2.0 Yes *
Rebate
------------------------------------------------------------------------------------------------------------------------------------
TOTAL *
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
* * * 8/1/98 Insert AG CAC Plus V2.0 AG Yes Phase Out/Signed Agreed to per contract
CAC Gold V2.0 AG CAC
Budget
------------------------------------------------------------------------------------------------------------------------------------
TOTAL * *
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
* * * 7/1/98 AD CAC Plus Yes Signed Agreed to per contract
------------------------------------------------------------------------------------------------------------------------------------
TOTAL * *
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
* * * 7/1/98 Insert AG CAC Plus V2.0 Yes Phase Out/Signed Agreed to per contract
------------------------------------------------------------------------------------------------------------------------------------
* * * 8/1/98 Insert AG CAC Plus V2.1 Yes Phase Out/Signed Agreed to per contract
------------------------------------------------------------------------------------------------------------------------------------
* * * 9/1/98 Insert All new product Yes Signed
------------------------------------------------------------------------------------------------------------------------------------
TOTAL * *
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
* * * 7/1/98 Endcap Carlton Cards Yes Phase Out
------------------------------------------------------------------------------------------------------------------------------------
TOTAL *
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
* * * 7/1/98 Insert AG CAC Plus V2.0 Yes Signed
------------------------------------------------------------------------------------------------------------------------------------
* * * 7/1/98 Rebates AG CAC Plus V2.1 Yes Signed
------------------------------------------------------------------------------------------------------------------------------------
TOTAL * *
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
* *
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Schedule 1.2 (c)
------------------------------------------------------------------------------------------------------------------------------------
22
CAC 3 LAUNCH COMMITMENTS
----------------------------------------------------------------------------------------------------------
* * Promo Date Activity Products Agreement Comments
----------------------------------------------------------------------------------------------------------
* * * End Cap AG CAC Plus V3.0 AG Yes
CAC Gold V3.0
TOTAL *
* * * EC W/Radio AG CAC Gold V3 Yes
* * * Insert AG CAC Gold V3 Yes
* * * Insert AG CAC Plus V3 Yes
* * * Insert All Products Yes
* * * Insert AG CAC Plus V3 Yes
* * * Insert AG CAC Plus V3 Yes
* * * Insert AG CAC Gold V3 Yes
* * * Insert AG CAC Plus V3 Yes
TOTAL *
* * * End Cap AG CAC Plus V3.0 AG Yes
AG CAC Gold V3.0
* * * Insert AG CAC Plus V3.0 AG Yes Signed
AG CAC Gold V3.0
* * * Insert AG CAC Plus V3.0 AG Yes
AG CAC Gold V3.0
* * * Insert AG CAC Plus V3.0 AG Yes
AG CAC Gold V3.0
* * * Insert AG CAC Plus V3.0 AG Yes
AG CAC Gold V3.0
TOTAL *
* * * Insert AG CAC Plus V3 Yes
* * * Insert AG CAC Gold V3 Yes
* * * End Cap/Red Rack AG CAC Plus V3.0 AG Yes
AG CAC Gold V3.0
TOTAL *
* * * Pop Display All new product Yes
* * * Insert All new product Yes Signed
* * * Insert AG CAC Plus V3 Yes
TOTAL *
* * * Ad/Display AG CAC Plus V3.0 AG Yes Signed
AG CAC Gold V3.0
TOTAL *
* * * Display AG CAC Gold V3 Yes
TOTAL *
* *
----------------------------------------------------------------------------------------------------------
23
SCHEDULE 1.5
EXCLUDED ASSETS
1. CreataCard J-Version based on Micrografx Windows Draw
2. Standard OEM License Agreement between ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Corporation
("Distributor") and Seller, dated March 15, 1997.
3. Standard OEM License Agreement between ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ UK Limited
("Distributor") and Seller, dated August 5, 1997.
4. Amended and Restated License Agreement between Canon Computer Systems,
Inc. ("Distributor") and Seller, dated March 31, 1997, as further
amended May ___, 1998.
5. Promotional Program Software Distribution Agreement between Canon
Computer Systems, Inc. ("CCSI") and Seller, dated May 22, 1998.
6. Standard OEM License Agreement between Epson America, Inc.
("Distributor") and Seller, dated April 15, 1998.
7. License to Incorporate Copyrighted Works between Lexmark International,
Inc. ("Lexmark") and Seller, dated March 31, 1998.
8. Standard OEM License Agreement between Mindscape, Inc. ("Distributor")
and Seller, dated July 31, 1997.
9. All Micrografx trade names, logos, service marks and trade dress.
10. The agreements listed as items #8-12 on Schedule 2.2(c).
24
SCHEDULE 2.2(B)(I)
AGREEMENTS AND CONSENTS
(i) All contracts which relate to the Software Programs (Section 2.2(b)
(i):
1. Master Agreement between American Greetings Corporation ("AG") and
Seller, dated February 9, 1996, as amended April 1, 1997.
2. Centerpiece Product, Subagreement A, between American Greetings
Corporation ("AG") and Seller, dated February 9, 1996, as amended April
1, 1997.
3. Design Packs, Subagreement B, between American Greetings Corporation
("AG") and Seller, dated February 9, 1996, as amended April 1, 1997.
4. On-Line and Internet Special Products, Subagreement C, between American
Greetings Corporation ("AG") and Seller, dated February 9, 1996.
5. Micrografx Remote Fulfillment Software, Subagreement D, between
American Greetings Corporation ("AG") and Seller, dated April 1, 1997.
6. Centerpiece Japan Product, Subagreement E, between American Greetings
Corporation ("AG") and Seller, dated April 1, 1997.
7. Bitstream Inc. License Agreement between Bitstream Inc. ("Bitstream")
and Seller, dated December 17, 1992, as amended. For licensed fonts.
8. Bitstream Inc. TrueDoc(R) License Agreement between Bitstream Inc.
("Bitstream") and Seller, dated May 30, 1997. For licensed fonts.
9. Leadtools Windows Based Products License Agreement between Lead
Technologies, Inc. ("Licensor") and Seller, dated June 8, 1995, as
amended. For licensed filters.
10. Pretty Simple Master OEM Agreement between Pretty Good Privacy, Inc.
("PGP") and Seller, dated June 30, 1997. Licensed encryption.
11. LZW Software Patent License Agreement between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
("Unisys") and Seller, dated December 14, 1995. License of LZW
technology.
12. Standard OEM License Agreement between ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Corporation
("Distributor") and Seller, dated March 15, 1997.
13. Standard OEM License Agreement between ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ UK Limited
("Distributor") and Seller, dated August 5, 1997.
14. Amended and Restated License Agreement between Canon Computer Systems,
Inc. ("Distributor") and Seller, dated March 31, 1997, as further
amended May ___, 1998.
25
15. Promotional Program Software Distribution Agreement between Canon
Computer Systems, Inc. ("CCSI") and Seller, dated May 22, 1998.
16. Standard OEM License Agreement between Epson America, Inc.
("Distributor") and Seller, dated April 15, 1998.
17. License to Incorporate Copyrighted Works between Lexmark International,
Inc. ("Lexmark") and Seller, dated March 31, 1998.
18. Standard OEM License Agreement between Mindscape, Inc. ("Distributor")
and Seller, dated July 31, 1997.
(ii) Consents and approvals.
BANK BOSTON - REVOLVING CREDIT AGREEMENT
AMERICAN GREETINGS CORPORATION - ASSUMED AGREEMENTS
(iii) All Royalties, Advances and other Fees relating to the Software
Programs (Section 2.2(b)(iii): None except for those due American
Greetings Corporation pursuant to the various Assumed Agreements.
26
SCHEDULE 2.2(C)
OEM AND LICENSING AGREEMENTS
(a) OEM Agreements:
1. Standard OEM License Agreement between ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Corporation
("Distributor") and Seller, dated March 15, 1997.
2. Standard OEM License Agreement between ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ UK Limited
("Distributor") and Seller, dated August 5, 1997.
3. Second Amended and Restated License Agreement between Canon Computer
Systems, Inc. ("Distributor") and Seller, dated May 29, 1998.
4. Promotional Program Software Distribution Agreement between Canon
Computer Systems, Inc. ("CCSI") and Seller, dated May 22, 1998.
5. Standard OEM License Agreement between Epson America, Inc.
("Distributor") and Seller, dated April 15, 1998.
6. License to Incorporate Copyrighted Works between Lexmark International,
Inc. ("Lexmark") and Seller, dated March 31, 1998.
7. Standard OEM License Agreement between Mindscape, Inc. ("Distributor")
and Seller, dated July 31, 1997.
(B) License Agreements:
8. Bitstream Inc. License Agreement between Bitstream Inc. ("Bitstream")
and Seller, dated December 17, 1992, as amended.
9. Bitstream Inc. TrueDoc(R) License Agreement between Bitstream Inc.
("Bitstream") and Seller, dated May 30, 1997.
10. Leadtools Windows Based Products License Agreement between Lead
Technologies, Inc. ("Licensor") and Seller, dated June 8, 1995, as
amended.
11. Pretty Simple Master OEM Agreement between Pretty Good Privacy, Inc.
("PGP") and Seller, dated June 30, 1997.
12. LZW Software Patent License Agreement between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
("Unisys") and Seller, dated December 14, 1995.
27
SCHEDULE 2.3
ENCUMBRANCES
None
28
SCHEDULE 2.4
LITIGATION AND CLAIMS
Micrografx, Inc. v. Corel Corporation, Corel Corporation and ▇▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇▇, in the United States District Court for the Northern District of
Texas, Dallas Division, Case No. 3-98CV0050-R
American Greetings has asserted claims against Micrografx for violation of the
Assumed Agreements. Seller shall obtain a release of Buyer and Seller from any
such claims.
29
SCHEDULE 2.5
INVENTORY
See Attached
The attached list represents all of the existing inventory.
o (3 pages omitted pursuant to the request for confidential treatment)
30
Inventory at MGX ▇▇▇▇▇▇▇▇▇▇
Part Number Description Quantity
-----------------------------------------------------------------------------------------------------
AD1L10ENG AM CREATE-A-CARD GOLD CDROM LIVE 1.0 ENG *
AM1A10ENG AM CREATACARD UK CDROM LIVE 1.0 ENG *
AM1C10ENG AM CREATACARD INT'L CDROM LIVE 1.0 ENG *
AM1W20ENG CAC PLUS CD 2.0 ENG WALMART *
AM20CDOEM AM 1.0 CREATACARD 20 "OEM" CD DISPLAY *
Part Number Description Quantity
-----------------------------------------------------------------------------------------------------
AD1A20ENG CAC GOLD UK LIVE 2.0 ENG *
Inventory at Softbank
Part Number Description Quantity
-----------------------------------------------------------------------------------------------------
AD1FU21ENG CAC GOLD CD Upgrade Pack 2.1 ENG *
AD1L10ENG AM CREATE-A-CARD GOLD CDROM LIVE 1.0 ENG *
AD1L20ENG CAC GOLD CD LIVE 2.0 ENG *
AD1W20ENG CAC GOLD CD 2.0 ENG WALMART *
AM1L20ENG CAC PLUS CD LIVE 2.0 ENG *
AM1W20ENG CAC PLUS CD 2.0 ENG WALMART *
INVENTORY AT MGX VENLO
Part Number Description Quantity
-----------------------------------------------------------------------------------------------------
AD1A20ENG CAC GOLD UK LIVE 2.0 ENG *
AD1C20ENG CAC GOLD CD INT'L LIVE 2.0 ENG *
AM1A10ENG AM CREATACARD UK CDROM LIVE 1.0 ENG *
AM1C10ENG AM CREATACARD INT'L CDROM LIVE 1.0 ENG *
31
SCHEDULE 2.6
INTANGIBLE PROPERTY
1. Trademarks: None (all owned by American Greetings)
2. Registered Trademarks or Pending Applications: None
3. Registered Copyrights:
Program/Version Registration # Date
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CREATACARD GOLD 1.0 TX4-574-621 10/20/1997
CreataCard Gold 2.0 TX4-574-620 10/20/1997
CreataCard Gold 2.1 TXu-814-555 02/10/1998
CreataCard Plus 1.0 TX4-574-623 10/20/1997
CreataCard Plus 2.0 TX4-574-622 10/20/1997
CreataCard Plus 2.1 TXu-814-556 02/10/1998
CreataCard Japanese version 1.0 TX-576-71 01/20/1996
CreataCard Studio Source Code TX4-321-216 08/23/1996
1. Unregistered Copyrights:
Program/Version Date
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CreataCard Gold 3.0
CreataCard Plus 3.0
Note: Buyer's rights to registered and unregistered copyrights relate
only to packaging, trade dress and other collateral materials identified in
Section 1.2(a)(ii).
32
SPECIFICATIONS
CreataCard Program Features
o Card Rack Browsing
o Find-A-Card Browsing
o ForgetMeNot Address Book & Calendar
o Greeting Card Generation
o Print
o E-mail
o Personal Delivery
o Creative Workshop
o Art Book
o Message Book
o Drawing Tools
o All project templates
o Themed Projects
o Multi-media Greetings
o Add-A-Photo Greetings
Content Project Types
o Greeting Cards
o Invitations
o Announcements
o Add-A-Photo Cards
o Signs/Certificates and Stationery
o Postcards
o Business Cards
o Envelopes
o Labels & Gift Tags
o Stickers
o Banners
o Calendar
o Labels
o Multimedia Greeting Cards (e-mail only)