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EXHIBIT 10.24
SOFTWARE DEVELOPMENT AGREEMENT
BETWEEN
TEIJIN LIMITED
AND MOLECULAR SIMULATIONS INCORPORATED
THIS AGREEMENT is made as of September 6, 1993 by and between Teijin
Limited, a corporation organized and existing under the laws of the country of
Japan with its principal offices at 6-7, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇▇▇▇▇, ▇▇▇▇-▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇ (hereinafter "Teijin") and Molecular Simulations Incorporated, a
corporation organized and existing under the laws of the State of Delaware, with
its principal place of business at ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇ (hereinafter "MSI").
WITNESSETH
WHEREAS, MSI and Teijin have entered into the following agreements:
Joint Venture Agreement, Common Stock Purchase Agreement and Corporate License
Agreement, all dated February 14, 1992, and Research and Development Agreement
dated February 23, 1993;
WHEREAS, pursuant to the Joint Venture Agreement, MSI and Teijin
Molecular Simulations Incorporated ("TMSI") have entered into a Distributorship
Agreement relating to the exclusive distribution of MSI's software products in
Japan; and
WHEREAS, MSI and Teijin wish to cooperate further, including Teijin's
funding of the development of MSI's computer software products;
NOW THEREFORE, in consideration of the foregoing, MSI and Teijin do
hereby mutually covenant and agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have
the meanings specified below:
1.1 NET SOFTWARE MARGIN. The proceeds that MSI actually recognizes when
MSI grants end-users the right to use MSI's Software Products or grants
distributors the right to sublicense MSI's Software Products, after deducting:
(a) amounts payable by MSI to its licensors and other parties with respect to
licenses of the Software Products; (b) trade or quantity discounts allowed and
taken, including advertising allowances and marketing fees or commissions paid
to third parties; (c) actual credits or refunds on account of any returns of the
Software Products; (d) any insurance, shipping or other out-of-pocket expense
that may be incurred in connection with delivery, to the extent such charges are
separately stated on contracts, invoices or other licensing documents; (e) any
excise, sales, value-added, property, use and foreign withholding taxes (but not
MSI's income taxes); and (f) import and export duties, taxes and surcharges. For
purposes of this Agreement, "Net Software Margin" expressly excludes proceeds
from: maintenance and support of Software Products; the provision of training,
contract research and consulting services; porting or other development of
Software Products; joint marketing activities; and other computer hardware or
software vendors for serving as an OEM or finder. For purposes of this
definition, the above calculations shall be determined on a consolidated basis
according to generally accepted accounting principles, consistently applied,
including for this purpose MSI
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and its subsidiaries which are at least majority-owned by MSI (for example, TMSI
would not be included).
1.2 NEW PRODUCTS. The following new computational chemistry and
molecular graphics software programs (including related user documentation) that
are being developed by MSI: Chemistry Backplane (including the Unified Materials
Product), and programs that will perform various applications in conjunction
with or as part of the Chemistry Backplane.
1.3 SOFTWARE PRODUCTS. All of the computational chemistry and molecular
graphics software programs (including related user documentation) that MSI
markets and distributes commercially, including the New Products after they are
commercially released. Software Products do not include computer hardware and
related software and peripherals (for example, operating system software and
compilers) sold by MSI.
2. SOFTWARE DEVELOPMENT
2.1 MSI's current product development plans, including plans for the
New Products, are described in the attached Appendix A. MSI agrees to use its
best efforts to develop the New Products in accordance with the plans set forth
in Appendix A. The staffing for the development of the New Products, including
the selection and use of MSI employees and third-party consultants, will be as
deemed commercially appropriate by MSI.
3. FUNDING OF DEVELOPMENT
3.1 Teijin agrees to fund MSI's development of the New Products in the
amount of three million U.S. Dollars ($3,000,000), to be paid as follows:
(a) Two million U.S. Dollars ($2,000,000) on the Effective Date (as
defined in Section 8.1) of this Agreement; and
(b) One million U.S. Dollars ($1,000,000) within three (3) weeks after
receipt by TMSI of MSI's first customer shipment of MSI's Unified
Materials Product. MSI estimates that its first customer shipment of
the Unified Materials Product will occur on or about December 31, 1993.
These amounts (hereinafter referred to as the "Development Funds") shall be paid
to MSI by wire transfer to an account designated by MSI. The Development Funds
will be expended by MSI as it deems appropriate to achieve substantially the
development objectives set forth in Appendix A.
4. REPAYMENT
4.1 RATE. MSI agrees to repay Teijin at the rate of four percent (4%)
of MSI's Net Software Margin (the "Repayment"). MSI's obligation to pay the
Repayment will continue to accrue until the first to occur of: (a) December 31,
1998, or (b) the date on which aggregate Repayments payable by MSI to Teijin
under this Agreement are sufficient to repay the Development Funds and provide
an internal rate of return (IRR) to Teijin equal to ten percent (10%) (i.e., the
discounted value of the Repayments equals the discounted value of the
Development Funds using a discount rate of 10%).
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4.2 MINIMUM PAYMENTS. Until MSI has paid Teijin aggregate Repayments
under this Agreement equal to at least the amount of Development Funds paid by
Teijin to MSI pursuant to Section 3.1 above, MSI agrees to pay Teijin cumulative
minimum Repayments as set forth below:
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Calendar Year Cumulative Minimum Repayments
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1994 $ 400,000
1995 $1,000,000
1996 $1,600,000
1997 $2,300,000
1998 $3,000,000
4.3 PAYMENT. The obligation to pay the Repayments will accrue with
respect to Net Software Margin recognized by MSI beginning on January 1, 1994.
MSI will pay the accrued Repayments to Teijin in annual installments within
ninety (90) days after the end of MSI's fiscal year during which the Repayments
were earned. The Repayments shall be made by wire transfer to an account
designated by Teijin and shall be paid in U.S Dollars. If paid and earned
Repayments through a given calendar year do not equal or exceed the minimum
required by Section 4.2, MSI shall include with its payment for such year the
balance of such minimum amount required. From and after the date of any default
of any payment due hereunder, until such default is cured, interest shall accrue
at the rate of 0.833% per month on such unpaid amounts.
4.4 TAXES. All taxes imposed upon or with respect to the Repayments
shall be the responsibility of Teijin. United States income tax may be withheld
by MSI from the Repayments if required by United States law. MSI shall promptly
provide Teijin with copies of tax receipts or other documents evidencing that
withheld taxes have been paid to the United States tax authorities.
4.5 REDUCTION OF REPAYMENTS. In the event MSI does not receive from
Teijin the amount set forth in Section 3.1(b), the 4% Repayment rate specified
in Section 4.1 and the minimum annual Repayment amounts specified in Section 4.2
shall automatically be reduced by multiplying such rate and all such amounts by
sixty-six and two-thirds percent (66-2/3%).
5. OWNERSHIP OF PROPRIETARY RIGHTS
5.1 MSI OWNERSHIP OF SOFTWARE PRODUCTS. As between Teijin and MSI, MSI
shall have and retain all rights, title, and interest in and to and ownership of
all copyrights, trademarks, trade secrets, patent rights, mask works and all
other industrial and intellectual property relating to the Software Products and
the New Products, including any improvements, updates, enhancements or
modifications to the Software Products or New Products, and including any and
all documentation, data and technical information created by or for MSI that
relates to the Software Products or New Products.
5.2 FURTHER ASSURANCES. Upon the request of MSI, Teijin agrees to
execute all documents and instruments reasonably required by MSI to give effect
to Section 5.1 above.
6. RECORDS; REPORTING
6.1 SOFTWARE DEVELOPMENT. MSI will keep adequate written records of its
development activities with respect to the New Products. Such records will be
available for inspection by Teijin at MSI's offices during normal business
hours, provided Teijin gives MSI reasonable advance notice of inspection. In
addition, MSI will provide Teijin with a monthly written report
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of MSI's development activities, which will make appropriate reference to
Appendix A, including MSI's progress in achieving its development objectives and
any modifications to the development plans made in MSI's reasonable commercial
judgment. MSI agrees to notify Teijin promptly of any material changes to MSI's
development plans.
6.2 REPAYMENTS. With each Repayment, MSI will submit to Teijin written
statements that are sufficient to determine the basis on which the Repayment
amount was calculated. In addition, within sixty (60) days after each of MSI's
first three fiscal quarters during each year in which Repayments are earned, MSI
will provide Teijin with a written statement that is sufficient to determine the
amount of Repayments earned for such fiscal quarter. All books of account and
records of MSI shall be kept available for at least three (3) years after the
applicable reporting period. Teijin shall have the right, at Teijin's expense,
to have an independent certified public accountant, selected by Teijin and
reasonably acceptable to MSI, examine such books and records for the purpose of
verifying the Repayments required under this Agreement; provided that any such
examination is made upon reasonable advance notice, during normal business hours
and not more than once per year. Such accountant shall enter into a
confidentiality agreement with MSI. If the examination of MSI's records
indicates an underpayment of five percent (5 %) or more of the amount that
should have been paid for any twelve month period examined, MSI shall pay Teijin
auditing fees and expenses for said audit in addition to any other payment due.
7. SOURCE CODE ESCROW
7.1 Escrow Agreement. Within thirty (30) days after the execution of
this Agreement, MSI and Teijin shall enter into a Source Code Escrow Agreement,
substantially in the form of Appendix B (the "Escrow Agreement"), with Data
Securities International, Inc. or other mutually acceptable escrow agent.
7.2 Restriction on Use of Source Materials by Teijin; Title to Source
Materials. All right, title and interest in and ownership of the Source
Materials (as defined in the Escrow Agreement) shall remain with MSI. Teijin
agrees to protect and maintain the Source Materials in the strictest confidence
and will not distribute, disclose or otherwise make available the Source
Materials directly or indirectly to any third party, and will not use the Source
Materials, except as permitted by this Agreement. MSI hereby grants to Teijin,
upon release of a copy of the Source Materials to Teijin in accordance with the
terms of the Escrow Agreement, the non-exclusive, non-transferable right to use
the Source Materials solely for purposes of (a) completing development of the
New Products, and (b) permitting Teijin to exercise the same marketing and
distribution rights with respect to the New Products as TMSI has pursuant to the
terms of that certain Distributorship Agreement dated April 1, 1992 between MSI
and TMSI, as such Distributorship Agreement is then in effect. Teijin and MSI
agree that such exercise of marketing and distribution rights by Teijin with
respect to the New Products will be subject to: (i) the written consent of TMSI
to assignment of its rights under the Distributorship Agreement in the
circumstances described in the Escrow Agreement, which consent Teijin and MSI
agree to use their respective best efforts to obtain as soon as possible after
execution of the Escrow Agreement, and (ii) Teijin being bound by and fulfilling
the same obligations as TMSI under the Distributorship Agreement. The parties
acknowledge and agree that the rights granted hereunder constitute a license of
intellectual property within the meaning of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Section
365(n).
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8. EFFECTIVE DATE; TERM AND TERMINATION
8.1 EFFECTIVE DATE. This Agreement shall become effective on the later
to occur of: (i) the date of execution of this Agreement by the parties, or (ii)
the date on which Japanese governmental clearance (whether in the form of an
approval, notification or otherwise) is obtained with respect to Japanese
foreign exchange and trade control regulations (the "Effective Date"). Teijin
will use its best efforts to obtain any required Japanese governmental clearance
and will provide MSI with prompt written notice of the receipt thereof.
8.2 TERM. This Agreement shall commence on the Effective Date and shall
remain in full force and effect until the date of completion of repayment
required by Section 4 of this Agreement.
8.3 TERMINATION OF AGREEMENT. Either party may, in addition and without
prejudice to any other rights or remedies, terminate this Agreement immediately
upon written notice to the other party if the other party commits any material
breach of any of the terms of this Agreement which, in the case of a breach
capable of remedy, shall not have been remedied within sixty (60) days of the
receipt by the party in default of notice specifying the breach and requiring
its remedy.
8.4 EFFECT OF TERMINATION. Except as provided in this Section 8.4 or in
Section 10.7 below, upon termination or expiration of this Agreement all
obligations of the parties shall cease. Termination or expiration of this
Agreement shall not affect any other rights or obligations of either party that
may have accrued up to the date of such termination or expiration, including
MSI's obligation to Teijin to make Repayments that have accrued through the date
of such termination or expiration.
9. WARRANTY; LIMITATIONS
9.1 MSI represents that it will use its best efforts to develop the New
Products in accordance with its development plans. MSI makes no representations
or warranties, express or implied, as to whether MSI will be successful in
completing development of the New Products according to its plans. In no event
shall MSI be liable for any special, incidental, or consequential damages,
including, but not limited to, lost profits, loss of goodwill, or business
disruption.
10. GENERAL TERMS
10.1 PROVISIONS INCORPORATED BY REFERENCE. MSI and Teijin hereby
incorporate by reference into this Agreement the provisions of Section 7.1
(Nondisclosure and Non-Use), 7.2 (Governing Law; Official Language) and 7.3
(Dispute Resolution) of the Corporate License Agreement dated February 14, 1992
between MSI and Teijin, with the intent that such provisions shall apply in and
to this Agreement (a) with the same effect that they apply in and to such
Corporate License Agreement, and (b) regardless of whether such Corporate
License Agreement terminates prior to this Agreement.
10.2 NOTICE. All notices concerning this Agreement shall be written in
the English language and shall be deemed to have been received (a) ten (10) days
after being properly airmailed, postage prepaid, (b) three (3) business days
after being properly sent by commercial
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overnight courier, or (c) two (2) business days after being transmitted by
confirmed telecopy, in each case addressed to the parties at the addresses set
forth below (or at such other address for a party as shall be specified by like
notice):
if to MSI, to: if to Teijin, to:
Molecular Simulations Incorporated Teijin Limited
16 New England Executive Park Information Systems Development
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Department
U.S.A. Iino Building
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇▇▇▇▇-▇▇▇, ▇-▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
10.3 SEVERABILITY AND WAIVER. In the event any provision of this
Agreement is held to be invalid or unenforceable, the valid or enforceable
portion thereof and the remaining provisions of this Agreement will remain in
full force and effect. Any waiver (express or implied) by either party of any
default or breach of this Agreement shall not constitute a waiver of any other
or subsequent default or breach.
10.4 ENTIRE AGREEMENT. This Agreement, together with the Appendices
attached hereto and the provisions of the Corporate License Agreement
incorporated by reference herein, constitutes the entire, final, complete and
exclusive agreement between the parties hereto and supersedes all previous
agreements or representations, written or oral, with respect to the subject
matter of this Agreement. This Agreement may not be modified or amended except
in a writing signed by a duly authorized representative of each party hereto.
10.5 NONASSIGNABILITY AND BINDING EFFECT. Except (a) as expressly
permitted in this Agreement, and (b) in connection with the sale of all or
substantially all of MSI's assets, or its business (by merger or otherwise), or
any similar transfer by MSI, any attempted assignment of the rights or
delegation of the obligations of either party under this Agreement shall be void
without the prior written consent of the non-assigning or non-delegating party.
In the case of any permitted assignment or transfer of or under this Agreement,
this Agreement or the relevant provisions shall be binding upon, and inure to
the benefit of, the successors, executors, heirs, representatives,
administrators and assigns of each of the parties hereto.
10.6 FORCE MAJEURE. Neither party shall be liable to the other for its
failure to perform any of its obligations under this Agreement or any Appendix,
except for payment obligations, during any period in which such performance is
delayed because rendered impracticable or impossible due to circumstances beyond
its reasonable control, including but not limited to fire, flood, earthquake,
acts of God, labor or materials trouble or shortage, riots, war, acts or
requirements of the government in any state or applicable jurisdiction, provided
that the party experiencing the delay promptly notifies the other of the delay.
10.7 SURVIVAL. The provisions of Sections 5, 6.2 and 10.1 shall survive
the termination of this Agreement. In the event this Agreement is terminated by
Teijin because of MSI's material breach as provided in Section 8.3, Section 7.2
shall survive such termination.
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10.8 COUNTERPARTS. This Agreement may be executed in counterparts with
the same force and effect as if each of the signatories had executed the same
instrument.
10.9 AUTHORITY TO ENTER INTO AND EXECUTE AGREEMENT. Both parties
represent and warrant to each other that they have the right and lawful
authority to enter into this Agreement for the purposes herein; that they have
taken all corporate action necessary to authorize the execution, delivery and
performance of this Agreement; and that this Agreement does not conflict with
any agreement, instrument or other obligation by which they are bound.
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10.10 INDEPENDENT CONTRACTOR STATUS. For purposes of this Agreement,
MSI shall be deemed to be an independent contractor and not Teijin's agent or
employee. No employer-employee or agency relationship shall be created between
Teijin and any individual associated with MSI by reason of this Agreement.
Neither party shall have any authority to make any statements, representations
or commitments of any kind, or to take any action, that shall be binding on the
other party, except as otherwise mutually agreed in writing by authorized
representatives of the parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the date and year first
set forth above.
TEIJIN LIMITED MOLECULAR SIMULATIONS INC.
By: /s/ [signature illegible] By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------- -------------------------------
Title: Managing Director Title: President and CEO
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APPENDIX A
MOLECULAR SIMULATIONS R&D PLANS
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SOURCE CODE ESCROW AGREEMENT
This Source Code Escrow Agreement is effective this _____ day of __________
1993, by and among Data Securities International, Inc. ("DSII"), a Delaware
corporation, Molecular Simulations Incorporated ("MSI"), a Delaware corporation,
and Teijin Limited ("Teijin"), a corporation organized under the laws of Japan.
WHEREAS, MSI has deposited or will deposit with DSII certain proprietary data of
MSI for retention and controlled access under the conditions specified in this
Agreement;
WHEREAS, this Agreement is being entered into pursuant to a Software Development
Agreement dated September ___, 1993 between MSI and Teijin (the "Software
Development Agreement"), and MSI and Teijin desire this Agreement to be
supplementary to the licensed rights under Section 7.2 of the Software
Development Agreement pursuant to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Section 365(n);
NOW THEREFORE, in consideration of the foregoing, the parties agree as follows:
1. Deposit Account. Promptly after the execution and delivery of this Agreement
and the payment of the first year escrow fee to DSII by MSI, DSII shall open a
deposit account ("Deposit Account") for the benefit of MSI and Teijin, and MSI
shall make an initial deposit of Source Materials to DSII for retention and
administration in the Deposit Account. From time to time as development work
proceeds under the Software Development Agreement, MSI shall deposit additional
Source Materials with DSII. With each deposit of Source Materials, MSI will
submit a completed, signed document to DSII and Teijin describing the Source
Materials being deposited.
2. DSII Obligations of Confidentiality. DSII agrees to establish a locked
receptacle in which it shall place the Source Materials and shall put the
receptacle under the administration of one or more of its officers, selected by
DSII, whose identity shall be available to MSI at all times. DSII shall exercise
a professional level of care in carrying out the terms of this Agreement. DSII
acknowledges MSI's assertion that the Source Materials shall contain proprietary
data and that DSII has an obligation to preserve and protect the confidentiality
of the Source Materials. Except as provided for in the Agreement, DSII agrees
that DSII shall not divulge, disclose, make available to third parties, or make
any use whatsoever of the Source Materials.
3. Filing for Release of Source Materials by Teijin. Upon written notice to DSII
by Teijin of the occurrence of any Release Condition (as defined in Section 5)
and payment of the release request fee, DSII shall notify MSI by certified mail
or commercial express mail service with a copy of the notice from Teijin. If MSI
provides DSII with a Contrary Instruction (as defined below) within thirty (30)
days, DSII shall not deliver a copy of the Source Materials to Teijin.
"Contrary Instruction" is a notice to DSII stating that MSI disputes the
occurrence of a Release Condition. DSII shall send a copy of any Contrary
Instruction to Teijin by certified mail or commercial express mail service, and
DSII shall notify both MSI and Teijin that there is a
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dispute to be resolved. Any dispute between MSI and Teijin will be resolved as
provided in Section 7.3 (Dispute Resolution) of the Corporate License Agreement
dated February 14, 1992 between MSI and Teijin.
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4. Release of Deposit Copy Upon No Contrary Instruction. In the event DSII does
not receive a Contrary Instruction within the thirty (30) day period described
in Section 3 above, DSII shall deliver one copy of the Source Materials to
Teijin, provided that Teijin has submitted to DSII all of the following: (a)
written demand that one copy of the Source Materials be released and delivered
to Teijin; (b) written undertaking that the copy of the Source Materials being
released to Teijin will be used only as permitted under the Software Development
Agreement; and (c) specific delivery instructions along with payment for
required copying and delivery charges.
5. Release Conditions. The Release Conditions are (i) that Teijin has terminated
the Software Development Agreement because of MSI's material breach as provided
in Section 8.3 of the Software Development Agreement; or (ii) that MSI has
ceased operation of its business, as evidenced by one or more of the following:
(a) the filing by MSI of a petition under Chapter VII of the United States
Bankruptcy Code; (b) the filing of an involuntary petition under Chapter VII of
the United States Bankruptcy Code against MSI, which petition is not dismissed
within sixty (60) days after filing; (c) the making of an assignment for the
benefit of MSI's creditors; or (d) the liquidation or dissolution of MSI;
provided, however, that a merger or consolidation of MSI with or into another
entity, or the sale of all or any part of MSI's assets, shall not be deemed to
be a liquidation or dissolution of MSI if such other entity or the purchaser of
MSI's assets agrees to assume and fully perform all of MSI's obligations under
the Software Development Agreement and this Agreement. MSI agrees to provide
Teijin with prompt notice of any occurrence of the events described in this
Section 5(ii).
6. Source Materials. As used in this Agreement, "Source Materials" means all
human- readable source code and support documentation owned by MSI, including
programmer's notes, flow charts, diagrams, instructional manuals, program
listings and engineering data, which are necessary or useful for understanding,
operation and reproduction of the New Products (as defined in the Software
Development Agreement).
7. Title to Source Materials. All right, title and interest in and ownership of
the Source Materials shall remain with MSI.
8. Disposition of Source Materials after Termination of Agreement. Upon
termination of this Agreement, if MSI requests the return of the Source
Materials, DSII shall return the Source Materials to MSI after all outstanding
invoices and any applicable return fees are paid. If the fees are not received
by the expiration date of this Agreement, DSII may destroy the Source Materials.
9. Term of Agreement. Subject to DSII's termination rights under Section 13
below, this Agreement will remain in effect until MSI has made Repayments to
Teijin under Section 4 of the Software Development Agreement. This Agreement
will also automatically terminate upon a proper release of a copy of the Source
Materials pursuant to Section 4 above or upon termination of the Software
Development Agreement by MSI because of Teijin's material breach as provided in
Section 8.3 of the Software Development Agreement. This Agreement may also be
terminated by delivery to DSII of written notice of termination signed by MSI
and Teijin.
10. Notices of Deposits to Teijin. DSII shall notify Teijin in writing of DSII's
receipt of MSI's initial deposit of Source Materials and any subsequent deposit
of Source Materials.
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11. Account History. DSII agrees to keep records of the activities undertaken
pursuant to this Agreement. DSII shall issue an account history to MSI or Teijin
upon such party's written request, but not more than once per year.
12. Indemnification. MSI and Teijin agree to defend and indemnify DSII and hold
DSII harmless from and against any and all claims, actions and suits, whether in
contract or in tort, and from and against any and all liabilities, losses,
damages, costs, charges, penalties, reasonable attorneys' fees, and other
expenses of any nature (including, without limitation, settlement costs)
incurred by DSII as a result of performance of this Agreement, except in the
event of a judgment which specifies that DSII acted with gross negligence or
willful misconduct.
13. Fees. MSI shall pay all fees required by DSII pursuant to this Agreement as
set forth in the attached fee schedule. In the event such fees are not paid
within thirty (30) days after written notice from DSII to MSI that such payments
are due, DSII shall provide written notice of MSI's non-payment to Teijin, who
may pay such fees on MSI's behalf. If invoiced fees are not paid by MSI or
Teijin within sixty (60) days of the date of invoice, DSII may terminate this
Agreement.
14. Notices and Communications. Notices and invoices (if appropriate) shall be
sent to the parties at the address set forth below:
if to MSI, to: if to Teijin, to: if to DSII, to:
Molecular Simulations Incorporated Teijin Limited Data Securities International, Inc.
16 New England Executive Park Information Systems ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Development Department ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Iino Building Attention:__________________________
▇-▇, ▇▇▇▇▇▇▇▇▇▇-▇▇▇, ▇-▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇. Nonassignability and Binding Effect. Except in connection with the sale of
all or substantially all of MSI's assets, or its business (by merger or
otherwise), or any similar transfer by MSI, any attempted assignment of the
rights or delegation of the obligations of the parties under this Agreement
shall be void without the prior written consent of the non-assigning or
non-delegating parties. In the case of any permitted assignment or transfer of
or under this Agreement, this Agreement or the relevant provisions shall be
binding upon, and inure to the benefit of, the successors, executors, heirs,
representatives, administrators and assigns of each of the parties hereto.
16. General. DSII may act in reliance upon any instruction, instrument, or
signature believed to be genuine and may assume that any employee giving any
written notice, request, advice or instruction in connection with or relating to
this Agreement has apparent authority and has been duly authorized to do so.
DSII is not responsible for failure to fulfill its obligations under this
Agreement due to causes beyond DSII's reasonable control. This Agreement is to
be governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts. This Agreement constitutes the entire agreement between the
parties concerning the subject matter hereof, and supersedes all previous
communications, representations, understandings, and
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agreements, either oral or written, between the parties. If any provision of
this Agreement is held by any court to be invalid or unenforceable, that
provision will be severed from this Agreement and any remaining provisions will
continue in full force.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the date and year first set forth
above.
MOLECULAR SIMULATIONS INC. TEIJIN LIMITED
By:__________________________________ By:_________________________________
Name:________________________________ Name:_______________________________
Title:_______________________________ Title:______________________________
DATA SECURITIES INTERNATIONAL, INC.
By:__________________________________
Name:________________________________
Title:_______________________________