EXHIBIT 10.8
CORDEXA NETWORKS CORP.
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Manager, e-business Solutions
IBM Canada Ltd.
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October 25, 2003
Dear ▇▇▇,
RE: CORDEXA / IBM CANADA MEMORANDUM OF UNDERSTANDING
Cordexa Networks Corporation ("Cordexa") and IBM Canada Ltd.("IBM Canada"),
(jointly, the "Parties") hereby express their joint intent to enter into a
mutually beneficial strategic relationship. The Parties desire to execute this
non-binding Memorandum of Understanding (this "MOU") outlining the Parties'
understanding of such relationship.
The Parties agree that execution of a copy of this MOU is acceptance of an
understanding in principle between the Parties as set forth herein.
NON-BINDING
This MOU is not binding on the Parties and no Party will have any legal
obligation, whether arising out of this MOU or otherwise, to the other Party or
to any other person or entity by reason of this MOU or any other matter
contemplated hereby or giving rise hereto, unless and until the Parties execute
one or more definitive agreements with respect to the subject matter hereof and
then only to the extent set forth in such definitive agreements. Such
definitive agreements, if so executed, will supersede any terms and conditions
expressed in this MOU or any other communication between the Parties and will
contain such terms, conditions, covenants, representations and warranties as are
appropriate for transactions of that type. With exceptions noted above, nothing
contained herein will obligate the Parties despite the use herein of the terms
"shall," "will," or other obligatory words or phrases.
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I. UNDERSTANDING IN PRINCIPLE
SCOPE
The Parties will work together to develop specific business opportunities and
mutual commitments that contribute to the execution of both Cordexa and IBM
Canada's business plans, including:
The introduction of Cordexa's niche hosting services, thought leadership
and consulting to IBM Canada's customers;
The application of Cordexa's "Fast-Path" Microsoft development methodology
to IBM Global Services Microsoft Consulting Practice;
The introduction of IBM Canada's e-business hardware, including the new
e-server platforms to Cordexa's customers;
joint publicity of the above efforts.
MUTUAL RESPONSIBILITIES
The Parties agree to use reasonable commercial efforts in support of the Guiding
Principles set forth in Article II below and to accomplish the tasks set forth
in the Joint Action Plan attached hereto as Schedule "B" within the time frame
agreed upon.
Each Party will assign the appropriate personnel within their own organizations
to accomplish the tasks outlined.
Neither Party shall commit to expend capital on behalf of the other without the
express written consent and the appropriate approval of the relevant operating
entities of that Party and the other Party to this agreement.
II. GUIDING PRINCIPLES
1. The Parties will primarily focus on, but not be limited to, the creation
of mutual business opportunities.
2. For greater certainty, but without limiting any other provisions in this
MOU:
a. IBM Canada will select Cordexa as a preferred but non-exclusive
supplier of niche and application services;
b. Cordexa will select IBM Canada as a preferred but non-exclusive
supplier of commodity and value hosting services;
c. Cordexa will provide services to IBM Canada on a project-by-project
basis;
d. Cordexa and IBM Canada will identify and develop joint opportunities
to provide customer solutions to each other's customers and prospects;
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e. Cordexa and IBM Canada will participate in joint press releases and
other promotional activities on a mutually agreed basis, including
event sponsorships, promotions, trades shows, and other joint
activities; and,
3. Opportunities not addressed in this MOU ("Additional Opportunities") will
be defined by scope, time, individual competencies, and management
responsibility in a separate document.
4. Participation in each Additional Opportunity will be determined by the
respective competencies and value contributed by the Parties.
5. The Parties may pursue this and Additional Opportunities through, but not
limited to Joint Ventures, Formal and Informal Alliances, Third Party
Agreements, Vendor/Customer Relationships, and Investment Financing.
6. This relationship shall at all times be subject to commercial
reasonableness, common sense, and practicality.
7. Each Party will appoint a person(s) to represent their respective
interests. Such representatives will hold discussions not less than once per
quarter for the purpose of reviewing and discussing opportunities relevant to
this MOU.
III. CONSENTS/APPROVALS/LEGAL REQUIREMENTS
This MOU and the consummation of any material transactions contemplated herein
shall be subject to approval by the board of Directors of Cordexa and the
Management of IBM Canada, and will be subject to any applicable legal or
regulatory requirements or restrictions. If any aspect of a transaction
requires consent from the Securities and Exchange Commission, or its Canadian
counterpart, state or provincial public utility commission or similar regulatory
body, the Parties will use their combined reasonable efforts (at their own
expense) to obtain any such consent and other required consents. Either Party
shall have the right to refuse to close any such transactions and/or terminate
any definitive agreements in the event that the required consents and approvals
are conditional or inadequate in any way.
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IV. EXPENSES
Each Party is responsible for its own expenses expended in achieving the goals
of this MOU.
V. CONFIDENTIALITY/PUBLICITY
The fact and existence of this MOU, the terms and conditions contained herein,
as well as the substance of any negotiations between the Parties with respect to
the matters contemplated herein are deemed confidential and are subject to the
terms of an Agreement for Exchange of Confidential Information signed between
the parties, and attached as Schedule A.
The terms and conditions of this MOU and all efforts arising therefrom will not
be disclosed to third parties by either Party, including without limitation, by
means of a press release, without the prior consent of the other Party,
provided, however, that the foregoing shall not preclude the Parties from making
any information available to their respective agents, representatives,
attorneys, consultants, investors, lenders or prospective partners.
VII. AGREEMENT DURATION
This MOU shall have a planned duration of 1 year following the agreement date,
with annual renewals to be confirmed at the end of each year of the agreement.
VIII. GOVERNING LAW
This MOU and all attachments hereto shall be governed and construed in
accordance with the laws of the Province of British Columbia, without regard to
conflict of laws or principles.
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IN WITNESS THEREOF, the Parties have duly executed this Agreement, as of the
effective date.
Agreed to : Agreed to:
IBM Canada Ltd. Cordexa Networks Corp.
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▇▇▇▇▇▇ Canada
By: /s/ ▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Manager e-business Solutions Title Business Developer
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Date: Date:
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SCHEDULE A
AGREEMENTS FOR EXCHANGE OF CONFIDENTIAL INFORMATION
CONFIDENTIALITY AGREEMENT
This Agreement is entered into and is effective as of_________________ by and
between IBM Canada and Cordexa.
DEFINITION OF CONFIDENTIAL INFORMATION:
Each party agrees that all information and materials disclosed IBM Canada and
Cordexa regarding a proposed business deal between the parties, including the
terms and conditions of this Agreement and the existence of the discussion
between the parties, will be considered and referred to collectively in this
Agreement as "Confidential Information". Confidential Information does not
include information that is now or subsequently becomes generally available to
the public through no fault or breach on the part of either party; either party
can demonstrate to have had rightfully in its possession prior to disclosure to
the receiving party; is independently developed by either party without the use
of any Confidential Information; or either party rightfully obtains from a third
party who has the right to transfer or disclose it.
NONDISCLOSURE AND NONUSE OF CONFIDENTIAL INFORMATION:
The parties shall not disclose, publish, or otherwise disseminate Confidential
Information to anyone other than those of its employees and trusted
subcontractors with a need to know, and each party shall take reasonable
precautions to prevent any unauthorized use, disclosure, publication, or
dissemination of Confidential Information. The parties accept the Confidential
Information for the sole purpose of evaluation in connection with either party's
business discussions with each other. Each party shall not use Confidential
Information otherwise for its own or any third party's benefit without the prior
written approval of an authorized representative of the disclosing party in each
instance. The foregoing restrictions on Confidential Information shall not apply
to Confidential Information that is required to be disclosed in connection with
any suit, action or other dispute related to the Confidential Information, or
otherwise required to be disclosed as a matter of law.
MISCELLANEOUS:
All Confidential Information remains the property of the disclosing party and no
license or other rights to Confidential Information is granted or implied
hereby. All Confidential Information is provided "AS IS" and without any
warranty, whether express or implied, as to its accuracy or completeness. Each
party hereby acknowledges that unauthorized disclosure or use of Confidential
Information could cause irreparable harm and significant injury to the
disclosing party that may be difficult to ascertain. Accordingly, each party
agrees that the disclosing party will have the right to seek and obtain
immediate injunctive relief to enforce obligations under this Agreement, in
addition to any other rights and remedies each party may have.
ENTIRE AGREEMENT AND GOVERNING LAW:
This Agreement constitutes the entire agreement with respect to the Confidential
Information disclosed herein and supersedes all prior or contemporaneous oral or
written agreements concerning such Confidential Information. This Agreement may
not be amended except by the written agreement signed by authorized
representatives of both parties. This agreement will be governed by and
construed in accordance with the laws of the Province of British Columbia,
excluding that body of British Columbia law concerning conflicts of law.
▇▇▇▇▇▇▇▇▇▇ and agreed to by the duly authorized representative of the parties:
Cordexa
Signature _________________________________ Date:
IBM Canada Ltd.
Signature: _________________________________ Date
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SCHEDULE B
MOU ACTION PLANS
RECURRING ACTIONS
Monthly - IBM Canada and Cordexa MOU management team meets to:
- review progress and results from the previous month;
- develop action plans for the next month;
- identify and discuss Additional Opportunities as appropriate;
- recommend additions and modifications to the MOU.
This meeting may be combined with other MOU management team activities, such as
a site visit, planning session, or other activity.
Yearly - IBM Canada and Cordexa sponsoring executives meet to:
- review progress and results from the previous year;
- discuss and approve major changes to the MOU as appropriate;
- determine if the MOU should be continued into the year.
CURRENT ACTION PLAN - THE NEXT STEP
PROPOSED ACTION ITEMS
- Cordexa to develop appropriate go-forward strategy
- IBM Canada stakeholders to participate in day workshop with Cordexa
development leads to better understand each company's offerings.
- Resource Cordexa skills in support of skills needed and timeline to be met.
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