EXHIBIT 10.35
JOINT VENTURE AGREEMENT
February 14, 1992
between
POLYGEN CORPORATION
and
TEIJIN LIMITED
TABLE OF CONTENTS
Page
ARTICLE 1 - DEFINITIONS.................................................. 1
ARTICLE 2 - EFFECTIVE DATE AND TERM...................................... 2
ARTICLE 3 - SCHEDULE OF EVENTS........................................... 2
3.1 Closing.................................................... 2
3.2 Filing of Incorporation Documents.......................... 3
3.3 Distributorship Agreement.................................. 3
ARTICLE 4 - ESTABLISHMENT OF THE COMPANY................................. 3
4.1 Formation of the Company................................... 3
4.2 Articles of Incorporation.................................. 3
4.3 Name and Principal Office.................................. 3
4.4 Procedures Involving Japanese Government................... 4
ARTICLE 5 - PURPOSES OF THE COMPANY...................................... 4
5.1 Corporate Purposes......................................... 4
5.2 Cooperation................................................ 4
ARTICLE 6 - CAPITAL OF THE COMPANY; SHAREHOLDERS AND ASSETS.............. 4
6.1 Capital Stock.............................................. 4
6.2 Subscription of Capital Shares............................. 5
6.3 Rights; Restrictions....................................... 5
6.4 Working Capital Loans...................................... 5
6.5 Preemptive Rights.......................................... 5
6.6 Securities................................................. 6
ARTICLE 7 - BUSINESS YEAR AND ACCOUNTING................................. 6
7.1 Business Year.............................................. 6
7.2 Accountant and Financial Statements........................ 6
7.3 Access to Books, Records and Facilities.................... 7
7.4 Records and Books; Internal Reports........................ 7
7.5 Statutory Auditor.......................................... 7
ARTICLE 8 - OPERATION OF THE COMPANY; ASSISTANCE;
PRODUCT DEVELOPMENT COORDINATION;
RIGHTS OF FIRST REFUSAL TO PRODUCTS.......................... 7
8.1 Adoption and Implementation of Operating
Procedures................................................. 7
8.2 Assistance to the Company.................................. 7
-i-
8.3 Product Development Coordination............................................ 8
8.4 Rights of First Refusal to Teijin's Products................................ 8
8.5 Right of First Refusal to Teijin Systems
Technology................................................................. 9
8.6 Obligation to Proceed Diligently............................................ 9
8.7 Company as Exclusive Distributor............................................ 9
8.8 Duty of Management to Act Impartially....................................... 10
8.9 Employee Benefits........................................................... 10
ARTICLE 9 - SHAREHOLDERS' MEETINGS........................................................ 10
9.1 Shareholders' Meetings....................................................... 10
9.2 Shareholders' Resolutions.................................................... 10
ARTICLE 10 - MANAGEMENT OF THE COMPANY.................................................... 11
10.1 Board of Directors.......................................................... 11
10.2 Election of Directors....................................................... 12
10.3 Board of Directors' Meetings................................................ 12
10.4 Resolutions of Board of Directors Meetings.................................. 12
10.5 Mutual Consultation......................................................... 13
10.6 Management.................................................................. 13
ARTICLE 11 - RESTRICTION ON TRANSFER OF SHARES............................................ 13
ARTICLE 12 - RIGHT OF FIRST REFUSAL....................................................... 14
ARTICLE 13 - PROFITS AND DIVIDENDS POLICY................................................. 15
ARTICLE 14 - SECRECY...................................................................... 15
14.1 Obligation of Secrecy....................................................... 15
14.2 Obligation Not to Use....................................................... 16
14.3 Observance by Company....................................................... 16
14.4 Indemnity; Injunctive Relief................................................ 16
ARTICLE 15 - TERMINATION.................................................................. 17
15.1 Termination................................................................. 17
15.2 Effect of Termination....................................................... 18
ARTICLE 16 - DISSOLUTION.................................................................. 18
16.1 Events Triggering Dissolution............................................... 18
16.2 Management of Company During Winding Up..................................... 18
16.3 Distribution of Assets...................................................... 18
16.4 Documents and Records....................................................... 19
ARTICLE 17 - REPRESENTATIONS, WARRANTIES AND COVENANTS.................................... 19
17.1 Representations, Warranties and Covenants of PMSI........................... 19
-ii-
17.2 Representations, Warranties and Covenants of
Teijin........................................................... 20
ARTICLE 18 - GOVERNING LAW AND LANGUAGE; DISPUTE RESOLUTION...................... 21
18.1 Governing Law and Language........................................ 21
18.2 Dispute Resolution................................................ 21
ARTICLE 19 - ENFORCEMENT........................................................ 22
19.1 Severability...................................................... 22
19.2 Waiver of Obligation.............................................. 22
19.3 Specific Performance/Injunctive Relief............................ 22
19.4 Rights of Shareholders are Cumulative............................. 23
19.5 Third Parties..................................................... 23
ARTICLE 20 - GENERAL TERMS....................................................... 23
20.1 Assignment........................................................ 23
20.2 Amendment......................................................... 23
20.3 Notices........................................................... 23
20.4 Compliance by Company............................................. 24
20.5 Entire Agreement.................................................. 24
20.6 Force Majeure..................................................... 24
20.7 Headings.......................................................... 24
20.8 Counterparts...................................................... 24
20.9 Export Compliance................................................. 24
20.10 Parties Advised by Counsel - No Interpretation
Against Drafter.................................................. 25
EXHIBITS
Exhibit A: Distributorship Agreement
Exhibit B: Common Stock Purchase Agreement
Exhibit C: Corporate License Agreement
Exhibit D-1: Articles of Incorporation of the Company
(Japanese Original not included herein)
Exhibit D-2: English translation of Articles of
Incorporation
-iii-
JOINT VENTURE AGREEMENT
THIS JOINT VENTURE AGREEMENT ("Agreement") is made as of the 14th day
of February, 1992 by and between Polygen Corporation (doing business as Polygen
Molecular Simulations Incorporated), a Delaware corporation, having its
principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
(hereinafter "PMSI"), and Teijin Limited, a corporation organized under the laws
of Japan, having its principal office at 6-7, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇▇▇▇▇, ▇▇▇▇-▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ (hereinafter "Teijin"). PMSI and Teijin shall hereinafter be
collectively referred to as the "Shareholders" and individually as a
"Shareholder".
RECITALS
WHEREAS, the Shareholders desire to enter into a strategic partnership
through the formation of a joint venture corporation in Japan upon the terms and
conditions set forth below for the purposes of marketing, distributing,
licensing, selling and supporting PMSI's and its subsidiaries' computational
chemistry software products in the Territory and establishing a strong strategic
business in the Territory which has direct relationships with customers and a
strong technology base.
WHEREAS, the Shareholders desire to acquire the stock of such
corporation, and the Shareholders desire to provide for the consistent and
uniform management of such corporation.
AGREEMENT
NOW THEREFORE, in consideration of the premises and mutual covenants
herein contained, the Shareholders hereby agree as follows:
ARTICLE 1 - DEFINITIONS
For the purposes of this Agreement, the following terms shall, unless
the context otherwise requires, have the meanings set forth below:
1.1 "Company" means the corporation to be organized under the laws
of Japan pursuant to Article 4 hereof.
1.2 "Territory" means the entire country of Japan, which Territory
may be expanded from time to time by mutual agreement of the Shareholders to
include other countries in the Asian Pacific Rim such as Korea and Taiwan.
1.
1.3 "Products" mean those computational chemistry software products
marketed presently or in the future by PMSI or PMSI Subsidiaries as defined in
the Distributorship Agreement attached hereto as Exhibit A and as to which the
Company shall have the right to act as a distributor under the Distributorship
Agreement.
1.4 "Distributorship Agreement" means the distributorship agreement
by and between PMSI and the Company in the form attached hereto as Exhibit A.
1.5 "Stock Purchase Agreement" means the common stock purchase
agreement by and between PMSI and Teijin in the form attached hereto as Exhibit
B, pursuant to which Teijin shall make an equity investment in PMSI through the
purchase of newly issued PMSI common stock.
1.6 "Corporate License Agreement" means the corporate license
agreement by and between PMSI and Teijin in the form attached hereto as Exhibit
C, pursuant to which PMSI shall grant Teijin a non-exclusive corporate license
to use the Products.
1.7 "PMSI Subsidiaries" mean and include any corporation, company or
other corporate entity in the United States or any other country in the world
whose voting stock is, at any time during the term of this Agreement, fifty
percent (50%) or more directly owned by PMSI.
ARTICLE 2 - EFFECTIVE DATE AND TERM
This Agreement shall become effective on the later to occur of: (i) the
date of execution of this Agreement by the Shareholders, or (ii) the date on
which all 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, and shall continue until terminated as provided
in Article 15 hereof.
ARTICLE 3 - SCHEDULE OF EVENTS
3.1 Closing. The closing (the "Closing") of the transactions
contemplated by this Agreement shall take place on March 6, 1992 (the "Closing
Date"), or such other subsequent date as the Shareholders may agree. The Closing
shall be held at the offices of Teijin in Tokyo, Japan, or at such other place
as the Shareholders may agree. Prior to or at the Closing, the Shareholders
shall concurrently execute and enter into this Agreement, the Stock Purchase
Agreement, the Corporate License Agreement, and any other agreements and/or
document(s) as they or
2.
their legal counsel may mutually deem necessary or appropriate in the
circumstances.
3.2 Filing of Incorporation Documents. As soon as practicable
following the execution of this Agreement, the Shareholders shall file or
arrange for the filing of the incorporation documents for the Company.
3.3 Distributorship Agreement. As soon as practicable after the
incorporation of the Company, PMSI and the Company shall enter into the
Distributorship Agreement whereby the Company shall be appointed as PMSI's
exclusive distributor with respect to the marketing, distribution, licensing,
sale and support of the Products in the Territory.
ARTICLE 4 - ESTABLISHMENT OF THE COMPANY
4.1 Formation of the Company. As soon as practicable after the
execution of this Agreement, the Shareholders will cause the Company to be
organized and incorporated as a joint stock company (Kabushiki Kaisha) under the
laws of Japan. All reasonable costs incurred in connection with the
incorporation and qualification of the Company in Japan shall be borne by the
Company to the extent legally permitted under the laws of Japan. The remainder
of such costs shall be shared equally by the Shareholders.
4.2 Articles of Incorporation. The Articles of Incorporation of the
Company shall be in the form attached hereto as Exhibit D-1 (Japanese original);
the English translation of which is attached hereto as Exhibit D-2. In the event
of any conflict between this Agreement and the Articles of Incorporation, this
Agreement shall prevail and the Shareholders shall amend the Articles of
Incorporation of the Company as necessary, to the extent permitted by law, to
eliminate such conflict. Notwithstanding the foregoing, in the course of
incorporating the Company, the promoter(s) may revise the Japanese original
Articles of Incorporation as required or suggested by the Notary Public or
District Registry in charge to the extent that no conflict between the revised
Japanese Articles of Incorporation and this Agreement and/or the English
translation attached hereto as Exhibit D-2 is created as a result of such
revision.
4.3 Name and Principal Office. The corporate name of the Company
shall be Teijin Molecular Simulations Incorporated in English and [ Japanese
Translation] in Japanese or, if such name is not available, such other name as
is acceptable to the Shareholders. The principal place of business of the
Company shall initially be located at Chiyoda-ku, Tokyo, Japan.
3.
4.4 Procedures Involving Japanese Government. Teijin shall be
responsible for completing and/or assisting PMSI in completing any approval
and/or notification procedures required by law involving the Japanese government
(national and/or local) with respect to the formation of the Company, including
but not limited to assisting PMSI in filing with the relevant Japanese
governmental ministries all required notices under the Foreign Exchange and
Foreign Trade Control Law of Japan, as amended, concerning PMSI's purchase of
stock in the Company. The Company shall: (i) file any and all reports and
notices and take any and all other further action as necessary or appropriate to
establish and maintain its existence under the laws of Japan, and (ii) be
responsible for completing any approval procedures required by law involving the
Japanese government with respect to the importation, marketing, distribution,
licensing, sale and support of the Products in the Territory.
ARTICLE 5 - PURPOSES OF THE COMPANY
5.1 Corporate Purposes. The Company shall pursue the following
business purposes:
(a) the importation, marketing, distribution, licensing and sale
of the Products in the Territory through all legitimate channels, including
direct, through subdistributors and OEMS;
(b) the provision of technical support services for the Products
and contract services relating to the Products; and
(c) other business activities which the Board of Directors of
the Company may from time to time decide.
5.2 Cooperation. The Shareholders agree to cooperate with each other
in good faith in the fulfillment of the above purposes and activities and
otherwise in the implementation of the provisions of this Agreement, and shall
jointly develop a business plan for the Company.
ARTICLE 6 - CAPITAL OF THE COMPANY; SHAREHOLDERS AND ASSETS
6.1 Capital Stock. The Company shall have one class of shares
designated common stock, to which the rights more particularly defined in
Section 6.3 hereof shall attach. The total authorized capital of the Company
shall consist of sixteen thousand (16,000) shares of common stock, with a par
value of fifty thousand Japanese yen (Y50,000) each.
4.
6.2 Subscription of Capital Shares.
(a) The Company shall issue four thousand (4,000) shares of
common stock at the time of its incorporation. The Shareholders shall subscribe
for such initial shares to be issued by the Company as follows:
Shareholder Common Shares Percentage
----------- ------------- ----------
PMSI 2,000 (50%)
Teijin 2,000 (50%)
(b) In consideration for its shares, PMSI shall pay to the
Company, within forty-five (45) days after the date of execution of this
Agreement and as the Shareholders may agree, the sum of one hundred million
Japanese yen (Y100,000,000) in cash. In consideration for its shares, Teijin
shall pay to the Company, within forty-five (45) days after the date of
execution of this Agreement and as the Shareholders may agree, the sum of one
hundred million Japanese yen (Y100,000,000) in cash. The obligation of each
Shareholder to subscribe and pay for shares as above-stated shall be conditioned
upon a subscription and payment, within twenty-four (24) hours, by the other
Shareholder of its respective portion thereof.
6.3 Rights; Restrictions. All shares issued by the Company shall have
equal voting and other rights, preferences and restrictions as set forth in the
Company's Articles of Incorporation attached hereto as Exhibit D-1.
6.4 Working Capital Loans. To the extent that funds generated from
the operations of the Company are not sufficient to cover all proper operational
expenses thereof, loans to the Company for working capital purposes in such sums
reasonably determined by the Board of Directors of the Company to be necessary
to fund such operational expenses ("Operating Loans") shall be obtained and
shall be severally guaranteed (if necessary) by the Shareholders in proportion
to their then respective shareholdings in the Company. Use of any Operating
Loans or other lines of credit by the Company shall be in accordance with a
budget set by the Board of Directors of the Company.
6.5 Preemptive Rights. The Shareholders shall have preemptive rights
to subscribe and pay for any additional new shares of the Company that are
issued in the future, in proportion to their then existing respective
shareholdings in the Company. Each Shareholder shall exercise its preemptive
rights by sending written notice to the Company of its intent to subscribe for
the new shares of the Company, within fourteen (14) days of being notified by
the Company of such capital increase. In each case, the subscription of and
payment for such new shares
5.
shall be consummated within thirty (30) days following receipt by the Company of
the Shareholder's written notice.
If either Shareholder shall not wish to subscribe for the shares
covering any capital increase, such Shareholder shall immediately notify the
Company and the other Shareholder thereof in writing, whereupon the preemptive
right of the first Shareholder shall pass to the other Shareholder and the
latter shall have the right to subscribe for all or any part of the shares not
so subscribed, and shall exercise such right in the manner set forth in the
preceding paragraph.
6.6 Securities. Unless otherwise agreed to between the Shareholders
in writing, the Company shall not issue any equity, including convertible bonds,
bonds with warrants or any other type of security, holders of which can acquire
an equity interest in the Company, without the prior approval of the Board of
Directors of the Company.
ARTICLE 7 - BUSINESS YEAR AND ACCOUNTING
7.1 Business Year. The business and tax year of the Company shall be
from April 1 to March 31 of each calendar year, provided that the first business
and tax year of the Company shall begin on the date of its incorporation and end
on the next occurring March 31.
7.2 Accountant and Financial Statements. The Company, at its expense,
shall employ an independent certified public accountant, as agreed to by the
Board of Directors of the Company, to perform an annual audit of the books and
records of the Company and to prepare any and all tax returns of the Company
required under Japanese law. Within sixty (60) days after the close of each
business year of the Company, an audited balance sheet and profit and loss
statement of the Company prepared in accordance with generally accepted
accounting principles in Japan consistently applied, together with a report of
such accountant shall be prepared in the Japanese language, translated into the
English language, and sent to each Shareholder. Any services of such accountant
other than such audit, performed at the request of either Shareholder, shall be
at the cost of the requesting Shareholder. Within thirty (30) days after the
close of each month of the business year of the Company, an unaudited balance
sheet and profit and loss statement of the Company for such month, prepared in
accordance with generally accepted accounting principles in Japan consistently
applied and certified by the chief financial officer of the Company to be true,
correct and complete in all material respects, shall be prepared in the Japanese
language, translated into the English language, and sent to each Shareholder.
6.
7.3 Access to Books, Records and Facilities. Each of the
Shareholders, at its own expense, shall have full and complete access, through
an accountant or other agent of its choice, to the books, records and facilities
of the Company during normal business hours for the purpose of inspection,
making copies, auditing or any other purpose not inconsistent with the best
interests of the Company. The books and records of the Company will be in the
Japanese language with a summary of such records to be made available, upon
request, in the English language. The cost of preparing the English language
summary shall be borne by the Company.
7.4 Records and Books; Internal Reports. The types of records and
accounting books which the Company will maintain shall be established by the
Board of Directors of the Company in accordance with any applicable law and
shall reflect generally accepted accounting principles in Japan. Such records
and books shall be maintained at the Company's principal office or, to the
extent permitted by applicable law, at such other location as the Company's
Board of Directors shall determine. If either Shareholder shall desire any
additional information or operating reports to be generated by the Company, such
Shareholder may cause such reports to be prepared at its own expense.
7.5 Statutory Auditor. In addition to the independent certified
public accountant to be employed pursuant to Section 7.2 hereof, the Company
shall have one (1) statutory auditor to be nominated by Teijin and to be elected
by resolution of the General Shareholders' Meeting.
ARTICLE 8 - OPERATION OF THE COMPANY; ASSISTANCE;
PRODUCT DEVELOPMENT COORDINATION;
RIGHTS OF FIRST REFUSAL TO PRODUCTS
8.1 Adoption and Implementation of Operating Procedures. All
operating procedures, including, without limitation, pricing policies with
respect to the licensing/sale of the Products in the Territory, staffing and
hiring, compensation of employees, supervision of work and marketing of the
Products, shall be determined under guidelines established by action of the
Board of Directors of the Company.
8.2 Assistance to the Company. Teijin will assist the Company in the
development of its business by providing a highly qualified management, staff
and necessary facilities for the Company's operations, at a reasonable
compensation. The Company's sales and support staff shall be solely engaged in
marketing and providing services related to the Products in the Territory. PMSI
will technically assist and provide initial technical staffing to the Company.
The salaries, travel, overseas assignment (where applicable) and incidental
expenses of
7.
all staff shall be borne by the Company while they are attached to the Company.
8.3 Product Development Coordination. Teijin agrees that, during the
term of this Agreement, it will coordinate its product development activities in
the field of computational chemistry with PMSI such that:
(a) Teijin and its subsidiaries will not, during the term of
this Agreement, engage in the development, licensing, or sale of any product
(except for "SetPro" which is currently under development and "Materia" which is
currently being sold) that Competes (as such term is defined below) with the
Products or any other software product under development or planned to be
developed by PMSI and/or PMSI Subsidiaries which are disclosed to Teijin in
writing in sufficient detail to enable Teijin to comply with the provisions of
this Section 8.3(a). For the purposes of this Agreement, two products shall be
considered to "Compete" with one another if the sale of one product to a
customer would substantially substitute for the sale of the other product to
such customer. Without limiting the obligations of the parties hereunder, Teijin
and PMSI shall consult with each other on a yearly basis to determine which
products are competitive products; and
(b) In the event that Teijin and/or any of Teijin's subsidiaries
intends to develop or develops a computational chemistry product (including, if
appropriate, "SetPro") which could be reasonably interfaced, built upon or
otherwise combined with software platforms or products of PMSI or those of PMSI
Subsidiaries, Teijin and/or the Teijin subsidiary in question shall notify PMSI
in writing and shall develop such product, in consultation with PMSI, to
integrate or otherwise be compatible with PMSI's and PMSI Subsidiaries' software
platforms or products.
8.4 Rights of First Refusal to Teijin's Products.
(a) Teijin hereby grants the Company, during the term of this
Agreement, a right of first refusal to market, license, sell or otherwise
distribute computational chemistry software products developed by Teijin or any
Teijin subsidiary under the conditions described in Section 8.3(b) above in the
Territory on an exclusive basis, and upon other terms that are substantially
equivalent to the terms granted to the Company by PMSI under the Distributorship
Agreement; provided, however, that such right of first refusal shall not extend
to products that are, as of the date hereof, marketed by Teijin or a Teijin
subsidiary.
8.
(b) Teijin also hereby grants PMSI, during the term of this
Agreement, a right of first refusal to market, license, sell or otherwise
distribute computational chemistry products developed by Teijin or any Teijin
subsidiary in all parts of the world outside of the Territory reserved to the
Company, on an exclusive basis, and upon other terms that are substantially
equivalent to the terms of the Distributorship Agreement between PMSI and the
Company. Teijin agrees to promptly and fully disclose in good faith to PMSI all
computational chemistry products developed by Teijin or any Teijin subsidiary
and the parties shall mutually identify those products that are suitable for
distribution by PMSI pursuant to its right of first refusal hereunder.
8.5 Right of First Refusal to Teijin Systems Technology [*]
8.6 Obligation to Proceed Diligently. If the Company, PMSI, or TST
exercises its right of first refusal to market and distribute products as set
forth in Sections 8.4(a), 8.4(b) or 8.5 above, as the case may be, it shall
diligently pursue commercial distribution of such product(s). If the party
exercising such right of first refusal shall fail to diligently pursue the
commercial distribution of the product(s) for which it has acquired distribution
rights for a period of ninety (90) consecutive days in any twelve (12)-month
period after the exercise of such right of first refusal, following notice from
the other party of the same and a thirty (30)-day period to cure, the party
which developed or introduced the product(s) shall thereafter have the right to
market and distribute such product(s) in the territory in question.
8.7 Company as Exclusive Distributor. PMSI agrees that, during the
term of this Agreement, the Company shall be PMSI's sole vehicle in the
Territory for the distribution of the
9.
* CONFIDENTIAL TREATMENT REQUESTED
* CONFIDENTIAL TREATMENT REQUESTED
Products in the Territory as contemplated by the Distributorship Agreement.
8.8 Duty of Management to Act Impartially. Notwithstanding the
foregoing provisions, the management of the Company shall at all times act only
in the best interests of the Company. Each Shareholder hereby assures the other,
and further agrees to be responsible for ensuring, that any management or other
personnel nominated, appointed or otherwise supplied by it shall abide by the
terms of this Agreement and the Distributorship Agreement and act impartially
and in the best interests of the Company, including but not limited to
transacting on an arms'-length basis with any subdistributor, sub-agent or
value-added reseller who is directly or indirectly owned or controlled by either
Shareholder.
8.9 Employee Benefits. Employees of the Company shall receive
benefits under the benefit plans as determined under guidelines established by
action of the Board of Directors of the Company.
ARTICLE 9 - SHAREHOLDERS' MEETINGS
9.1 Shareholders' Meetings. Shareholders of the Company shall receive
notice in both the Japanese and English languages of each Shareholder's Meeting
at least fourteen (14) days before the scheduled date of such meeting. The
Company shall have at least one Ordinary General Meeting of Shareholders each
calendar year at a time and location determined by the Board of Directors of the
Company. Any Extraordinary or Special Meeting of Shareholders of the Company
shall be held from time to time at the request of a Shareholder of the Company
according to applicable law or as called for by a resolution of the Board of
Directors.
9.2 Shareholders' Resolutions. The quorum for Shareholders' Meetings
shall consist of a majority of the total outstanding shares of the Company.
Unless otherwise required by applicable law, all resolutions may be passed by an
affirmative vote of a majority of the shares present and entitled to vote;
provided that in the case of the matters listed below, unless otherwise agreed
by the Shareholders, such matters shall be submitted to the Shareholders for
approval by a special resolution of the Shareholders' Meeting, which special
resolution must be adopted by an affirmative vote of not less than two-thirds
(2/3) of the shares present and entitled to vote, unless otherwise set forth
herein:
(a) Modification or amendment of the Articles of Incorporation
of the Company;
10.
(b) Assignment or other transfer of all or an important part of
the business of the Company, or acquisition of all or an important part of the
business of others;
(c) Reduction in capital;
(d) Dissolution and/or liquidation except as provided in Article
16 below;
(e) Payment of dividends;
(f) Dismissal of Directors of the Company;
(g) Merger or consolidation of the Company, which shall be
adopted by an affirmative vote of not less than two-thirds (2/3) of the shares
outstanding;
(h) Change in the business purposes of the Company; and
(i) Such other matters as required by law or the Articles of
Incorporation of the Company to be determined by a special resolution of the
Shareholders' Meeting.
Notwithstanding the foregoing, if at any time after the third anniversary of the
Effective Date of this Agreement, either Shareholder proposes that any of the
actions set forth in Section 9.2(b), (d), (g) or (h) above be taken, such
Shareholder shall send written notice of its proposal (the "Proposal Notice") to
the other and if such action is not adopted by the required vote of the
Shareholders within thirty (30) days following the date of the Proposal Notice,
the proposing Shareholder shall have the right to require mutual consultation
between the senior management of the Shareholders by written notice to the other
in accordance with Section 10.5 hereof.
ARTICLE 10 - MANAGEMENT OF THE COMPANY
10.1 Board of Directors. The Company shall be managed by a Board of
Directors to be composed of six (6) individuals, three (3) to be nominated by
each of PMSI and Teijin, respectively; except, however, that, for such period as
shall be mutually agreed to by the Shareholders, the Board of Directors of the
Company shall consist of four (4) members, two (2) to be nominated by each of
PMSI and Teijin, respectively. The Company shall have two (2) representative
directors, one to be appointed from the Directors nominated by PMSI and the
other from the Directors nominated by Teijin, who shall serve for such period as
11.
shall be mutually agreed to by the Shareholders. The representative directors
shall have the authority to act severally on behalf of the Company.
10.2 Election of Directors. The Directors of the Company shall be
elected at the Shareholders' Meeting. Each party hereby agrees to vote its
shares for the candidates so nominated. The Shareholders hereby agree that if
any of the Directors dies, resigns or leaves office before the expiration of his
term, such vacancy shall be filled promptly and in any event prior to the Board
of Directors taking any major action and each Shareholder will vote its shares
so that a new Director, to be selected by the Shareholder who nominated the
departed Director, shall be elected as his successor. The Shareholders expressly
agree that the voting agreement contained in this Section 10.2 shall be
specifically enforceable. The maximum amount of compensation to be paid to the
Directors shall be determined by resolution of the Shareholders' Meeting.
10.3 Board of Directors' Meetings. Notice of Board of Directors'
meetings shall be given in both the Japanese and English languages to each
Director and the statutory auditor at least twenty (20) days before the
scheduled date of such meeting unless such notice is waived in writing by all of
the Directors and the statutory auditor. The Board of Directors shall meet at
least once every three (3) months at times and places to be mutually agreed.
10.4 Resolutions of Board of Directors Meetings. The quorum for
meetings of the Board of Directors of the Company shall be a majority of the
total number of Directors in office. The approval of a majority of the Board of
Directors present at any such meeting shall be required for any of the
following:
(a) adoption of the annual business plan (including financial
and operating plans) of the Company and any amendments thereto;
(b) changes in capital;
(c) appointment and dismissal of executive personnel, including
but not limited to a general manager and officers of the Company, and the
compensation of such officers;
(d) the entering into of any agreement between the Company and
either of Teijin and PMSI or an affiliate, director or employee of either of
them;
(e) the appointment and dismissal of any subdistributor, sub-
agent, value-added reseller or OEM under the Distributorship Agreement and the
terms of any agreement with any such subdistributor, sub-agent, value-added
reseller or OEM; and
12.
(f) the setting of guidelines and approval of any changes
relating to the use of Teijin's name, PMSI's name and/or the Company logo in
advertising, brochures and related materials.
As promptly as practicable following the formation of the Company, the
Board of Directors shall pass resolutions defining the extent of authority to be
given to the Company's management in relation to approval by said management of
(i) indebtedness for borrowed money by the Company (including the guarantee of
any indebtedness by the Company) and (ii) capital expenditures of the Company.
The approval authority of the Company's management shall, at a minimum, be
reviewed by the Board of Directors once a year and, if necessary, adjusted as
the Board of Directors may deem fit.
If agreement cannot be reached on any of the matters enumerated in this
Section 10.4 above, with the exception of Section 10.4(f) above, Teijin and PMSI
shall each have the right to give written notice to the other party and request
mutual consultation between senior management of the Shareholders relating to
such matter in accordance with Section 10.5 below.
10.5 Mutual Consultation. Within thirty (30) days after notice by
either Shareholder requesting mutual consultation in accordance with the terms
of this Agreement, the Shareholders, through their respective senior management,
shall commence negotiations and shall negotiate in good faith for a period of
not less than thirty (30) and not more than ninety (90) days to accomplish a
mutually agreeable resolution of the matter. Unless otherwise agreed, senior
management of the Shareholders shall meet at least three (3) times during such
ninety (90)-day negotiation period. In the event that such matter cannot be so
resolved, this Agreement shall be terminated and the Company shall be dissolved
and liquidated in accordance with the procedures set forth in Article 16 hereof
no later than two hundred and seventy (270) days from the date of the notice
requesting mutual consultation.
10.6 Management. Teijin shall provide the management personnel for the
Company and shall nominate the President of the Company for such period as shall
be mutually agreed to by the Shareholders for approval by the Board of Directors
of the Company.
ARTICLE 11 - RESTRICTION ON TRANSFER OF SHARES
Each of the Shareholders covenants and agrees that it shall not sell,
transfer, assign, convey, pledge, encumber or in any way dispose of or create
any interest whatsoever in, any or all of its shares in the Company without the
prior written consent of
13.
the other Shareholder, such consent not to be unreasonably withheld; provided,
however, that either Shareholder may freely transfer its shares in the Company
to an acquirer or successor-in-interest of all or substantially all its business
without the prior consent of the other Shareholder, subject to the condition
that the acquirer or transferee of such shares shall expressly agree in writing
to become bound by the terms of this Agreement, the Distributorship Agreement
and the Corporate License Agreement. Not less than twenty-two (22) days prior to
a Shareholder entering into a definitive and binding agreement providing for its
acquisition by, or the sale of substantially all its business to, a competitor
who is located in the territory of the other Shareholder, the Shareholder to be
acquired shall send written notice of the same to the other Shareholder. The
Shareholders shall then mutually consult at the senior management level
concerning the effect of such acquisition or sale on the Company. The purpose of
such consultation shall be to assure that the acquisition of the Shareholder in
question shall have as little impact on the conduct of the Company's business as
possible and to preserve as much as possible the conduct of the business of the
Company as it existed prior to such acquisition. The Shareholders shall cause
the Company to register with the Commercial Registry of Japan, and to have the
Articles of Incorporation of the Company contain, a statement to the effect that
any transfer of any shares of the Company is subject to the prior approval of
the Company's Board of Directors. Any transfer or attempted transfer in
violation of this Article 11 shall be null and void and of no effect.
ARTICLE 12 - RIGHT OF FIRST REFUSAL
Except where shares in the Company are to be sold or otherwise
transferred to an acquirer or successor-in-interest of all or substantially all
of either Teijin's or PMSI's business in accordance with the provisions of
Article 11 hereof, if either Teijin or PMSI desires to sell or transfer its
ownership in the Company, in whole or in part, the selling party shall first
notify the other party in writing (the "Transfer Notice") of the proposed sale
or transfer (including the price and proposed transferee). The Transfer Notice
shall be signed by both the selling party and by the proposed transferee and
shall set forth the number of shares in the Company which the selling party
proposes to transfer, together with all material terms and conditions of the
proposed transfer, and must constitute a binding commitment on both such parties
for the transfer of shares subject only to the Right of First Refusal (as
defined hereafter). The other party shall have a right of first refusal for
ninety (90) days after the date such notice is delivered to purchase the selling
party's shares in the Company at the proposed sale price (the "Right of First
Refusal"). The other party shall exercise its Right of First Refusal by giving
notice
14.
of acceptance in writing to the selling party within the 90-day period provided
above. If the other party does not exercise this Right of First Refusal within
the ninety (90)-day period provided, the selling party may conclude a transfer
of the shares to the proposed transferee on the terms and conditions and for the
price set forth in the Transfer Notice, subject to the prior written consent
requirement of Article 11 hereof. Any proposed transfer on terms and conditions
different from those described in the Transfer Notice or to an entity other than
the proposed transferee identified in the Transfer Notice, as well as any
subsequent proposed transfer by the selling party, shall again be subject to the
Right of First Refusal. The transfer of any stock elected to be acquired
pursuant to the Right of First Refusal shall be consummated within forty-five
(45) days following the receipt of the written acceptance of the selling party's
offer. Any sale or transfer of any shares of stock of the Company shall be void
unless the provisions of this Article have been complied with.
ARTICLE 13 - PROFITS AND DIVIDENDS POLICY
Unless otherwise agreed by the Shareholders, the whole of the profits
of the Company shall after such provisions and reserves as may be required and
considered appropriate by the Shareholders and subject to the availability of
tax credits, be retained by the Company in respect of each business year.
ARTICLE 14 - SECRECY
14.1 Obligation of Secrecy. Without the prior written consent of the
supplying Shareholder, no receiving Shareholder, its officers, directors, agents
or employees shall, in the case of Confidential Information (as defined
hereafter) of a business nature, both during the term of this Agreement and for
a period of three (3) years after termination of this Agreement, and in the case
of all Confidential Information of a technical nature, both during the term of
this Agreement and for a period of ten (10) years after termination of this
Agreement, in any manner whatsoever disclose or communicate such information to
a third party, except as legally required by any governmental or judicial
agency, and each Shareholder agrees to keep such Confidential Information
strictly confidential. For the purpose of this Agreement, the term "Confidential
Information" shall mean and include any and all financial and other information
relating to the Company, information concerning this Agreement and its terms and
conditions and the relationship of the Shareholders hereto, business and
financial information of either Shareholder, and technical information relating
to the Products (including, without limitation, design specifications,
instructions and know-how) acquired either directly or indirectly by either
Shareholder
15.
hereunder; provided, however, that all such Confidential Information shall be
clearly marked as "confidential" and the term "Confidential Information" shall
not include any information which:
(a) has become or entered the public domain through no fault of
the receiving party; or
(b) was in the demonstrable possession of the receiving party
prior to or at the time of receipt hereunder; or
(c) was or has been obtained lawfully from a third party; or
(d) has been independently developed by the receiving party
without violation of its obligations under this Agreement, and which independent
development is properly documented by such party.
This Section 14.1 shall in no way supersede the respective
confidentiality and non-use provisions of any of the agreements attached as
Exhibits to this Agreement, and the confidentiality and non-use provisions in
any such agreement shall prevail over the provisions of this Section 14.1 with
respect to that agreement.
14.2 Obligation Not to Use. Each Shareholder agrees that it shall not
use any Confidential Information obtained from the other Shareholder or from the
Company for any purpose whatsoever except in a manner expressly provided for in
this Agreement; provided, however, that in the event this Agreement is
terminated for any reason other than breach by a Shareholder, the Shareholders
may freely use Confidential Information relating to or of the Company but not of
either Shareholder; provided, further, however, that in the event this Agreement
is terminated for breach by either Shareholder, only the non-breaching
Shareholder shall be entitled to use Confidential Information relating to or of
the Company but not of either Shareholder.
14.3 Observance by Company. Each of the Shareholders agrees to cause
the Company to abide and be bound by the confidentiality and non-use obligations
of Sections 14.1 and 14.2 hereof for the periods specified in Section 14.1 and
subject to the exceptions set forth in Section 14.2 above.
14.4 Indemnity; Injunctive Relief. Each Shareholder shall indemnify
and hold the other harmless from any loss, liability and expenses suffered by
the other Shareholder as a result of any unauthorized disclosure, communication
or use of any Confidential Information by the receiving Shareholder, its
officers, directors, employees or agents. The Shareholders acknowledge that
irreparable injury will result to the other in the event of
16.
a breach or threatened breach of any of the provisions of this Article and agree
that in the event of a breach or threatened breach, the complaining Shareholder
shall be entitled, in addition to any other available remedy, to seek injunctive
and other equitable relief from a court of competent jurisdiction. The
obligations contained in Sections 14.1, 14.2, 14.3 and 14.4 of this Article
shall survive the termination of this Agreement.
ARTICLE 15 - TERMINATION
15.1 Termination. This Agreement may be terminated in writing by a
Shareholder in the event of the occurrence of any one or more of the following:
(a) the other Shareholder fails to perform any material
obligation of this Agreement or any of the agreements attached as an Exhibit to
this Agreement and such default is not cured within sixty (60) days after
written notice of the default made by the other Shareholder;
(b) the other Shareholder shall be dissolved or liquidated due
to adverse financial conditions, be declared bankrupt or insolvent, or becomes a
party for more than ninety (90) days to proceedings or arrangements involving
liquidation, receivership, reorganization or the settlement of its debts, except
for any action instituted by the other Shareholder, and the non-affected
Shareholder gives written notice to such Shareholder that it wishes to terminate
this Agreement. A Shareholder subject to any of the events described herein
shall promptly notify the other Shareholder of its occurrence in writing;
(c) mutual consultation between the Shareholders in accordance
with Section 10.5 hereof fails to resolve the matter(s) being negotiated within
the period specified therein;
(d) the acquisition by either Teijin or PMSI of all of the
shares of the Company;
(e) the Company is declared bankrupt by a court of competent
jurisdiction or is the subject of a final decision for the commencement of
corporate reorganization procedures;
(f) the Shareholders agree that, taking into account all
pertinent market conditions, the performance of the Company does not justify its
continued existence; and
(g) the accumulated deficit of the Company exceeds [*]
and mutual consultation between the Shareholders in the manner set forth in
17.
* CONFIDENTIAL TREATMENT REQUESTED
Section 10.5 fails to resolve the deficit issue within ninety (90) days of such
deficit being incurred.
15.2 Effect of Termination. Upon the termination of this Agreement for
any reason, the Distributorship Agreement shall terminate forthwith.
Notwithstanding the foregoing, PMSI agrees that if this Agreement is terminated
under Section 15.1(a) for a breach or default by PMSI in its obligations, PMSI
shall continue to provide technical support and updating services to customers
of the Company and TST for a minimum period of two (2) years following the date
of such termination.
ARTICLE 16 - DISSOLUTION
16.1 Events Triggering Dissolution. If an event described in Sections
15.1 (a), (b), (c), (e), (f) or (g) occurs, the Shareholders shall effect a
liquidation of the Company as promptly as possible and the Company shall
immediately commence to wind up its affairs. Nothing in this Article 16 shall
relieve a Shareholder who has breached this Agreement from its liability for
damages incurred by the other Shareholder due to such breach.
16.2 Management of Company During Winding Up. During the period of the
winding up of the affairs of the Company, the rights and obligations of the
Shareholders set forth herein with respect to the management of the Company
shall continue. For purposes of winding up, the Shareholders shall continue to
act as such and shall make all decisions relating to the conduct of any business
or operations during the winding up period and to the sale or other disposition
of the Company's assets; provided that if the termination of the Company results
from an event described in Sections 15.1(a) (material breach) or 15.1(b)
(bankruptcy) above (an "Event"), the Shareholder subject to such Event shall
have no further right to participate in the management or affairs of the Company
or to vote on shareholder decisions but shall nonetheless be bound by all
decisions made by the non-Event Shareholder. Each Shareholder hereby waives any
claim it may have against the non-Event Shareholder that may arise out of
management by such Shareholder of the Company, so long as such Shareholder acts
in good faith.
16.3 Distribution of Assets. The assets of the Company shall be
applied or distributed upon dissolution in the following order of priority:
(a) First, in payment of debts and obligations of the Company to
third parties which shall include Teijin and/or PMSI as the holder of any
secured loan;
(b) Second, in payment of debts and obligations of the Company
to Teijin and/or PMSI;
18.
(c) Last, the balance, if any, to the Shareholders in proportion
to their respective ownership percentages in the Company.
In the event that the liabilities of the Company exceed its assets at
the time of dissolution under this Article, the Shareholders shall contribute
such additional capital as necessary to cover any debts, expenses or other
liabilities of the Company in proportion to their then existing ownership
interests in the Company.
16.4 Documents and Records. All documents and records of the Company
including, without limitation, all financial records, vouchers, cancelled checks
and bank statements, shall be delivered to Teijin upon termination of the
Company unless the Company has been purchased by PMSI pursuant to Article 12
hereof, in which case such delivery shall be made to PMSI. Unless otherwise
agreed, the Shareholders, as appropriate, shall retain such documents and
records for a period of not less than ten (10) years and shall make such
documents and records available during normal business hours to the other for
inspection and copying at such other's cost and expense. In the event any
Shareholder ("Withdrawing Venturer") for any reason ceases as provided herein to
be a Shareholder at any time prior to termination of the Company, and the
Company is continued without the Withdrawing Venturer, the other Shareholder
("Surviving Venturer") agrees that said documents and records of the Company up
to the date of the termination of the Withdrawing Venturer's interest shall be
maintained by the Surviving Venturer, its successors and assigns, for a period
of not less than ten (10) years thereafter; provided, however, that if there is
an audit or threat of audit, such documents and records shall be retained until
the audit is completed and any tax liability finally determined. Said documents
and records shall be available for inspection, examination and copying by the
Withdrawing Venturer at its expense and upon reasonable written notice.
ARTICLE 17 - REPRESENTATIONS, WARRANTIES AND COVENANTS
17.1 Representations, Warranties and Covenants of PMSI. To induce
Teijin to enter into this Agreement, PMSI represents, warrants and covenants
to Teijin as follows:
(a) PMSI is a corporation duly organized, validly existing and
in good standing under the Laws of the State of Delaware, has the lawful power
to own its properties and to engage in the business it conducts, and is duly
qualified and in good standing as a foreign corporation in all jurisdictions
where failure to qualify would materially adversely affect PMSI in the
performance of this Agreement. PMSI will take all actions
19.
necessary to maintain this status throughout the term of this Agreement;
(b) The making and performance of this Agreement, the
Distributorship Agreement, and the Corporate License Agreement by PMSI will not
(with the passage of time, the giving of notice, or both) violate the Articles
of Incorporation or Bylaw provisions of PMSI, or result in a default under a
contract, agreement, or instrument to which PMSI is a party or by which PMSI or
its property is bound;
(c) PMSI has the corporate power and authority to enter into and
perform this Agreement, the Distributorship Agreement, and the Corporate License
Agreement, and to incur the obligations herein and therein provided for, and has
taken all corporate action necessary to authorize the execution, delivery, and
performance of this Agreement, the Distributorship Agreement, and the Corporate
License Agreement;
(d) This Agreement, the Distributorship Agreement, and the
Corporate License Agreement when delivered will be valid, binding and
enforceable in accordance with their respective terms, subject only to
bankruptcy, insolvency, or other similar laws affecting the enforcement of
creditor's rights; and
(e) PMSI is acquiring stock in the Company for investment
purposes only and not for distribution.
17.2 Representations, Warranties and Covenants of Teijin. To induce
PMSI to enter into this Agreement, Teijin represents, warrants and covenants to
PMSI as follows:
(a) Teijin is a corporation duly organized, validly existing and
in good standing under the laws of Japan, has the lawful power to own its
properties and to engage in the business it conducts and is duly qualified and
in good standing as a foreign corporation in all jurisdictions where failure to
qualify would materially adversely affect Teijin in the performance of this
Agreement. Teijin will take all actions necessary to maintain this status
throughout the term of this Agreement;
(b) The making and performance of this Agreement and the
Corporate License Agreement by Teijin will not (with the passage of time, the
giving of notice, or both) violate the Articles of Incorporation of Teijin, or
result in a default under a contract, agreement, or instrument to which Teijin
is a party or by which Teijin or its property is bound;
20.
(c) Teijin has the corporate power and authority to enter into
and perform this Agreement and the Corporate License Agreement, and to incur the
obligations herein and therein provided for, and has taken all corporate action
necessary to authorize the execution, delivery, and performance of this
Agreement and the Corporate License Agreement;
(d) This Agreement and the Corporate License Agreement when
delivered will be valid, binding and enforceable in accordance with their
respective terms, subject only to bankruptcy, insolvency, or other similar laws
affecting the enforcement of creditor's rights; and
(e) Teijin is acquiring stock in the Company for investment
purposes only and not for distribution.
ARTICLE 18 - GOVERNING LAW AND LANGUAGE; DISPUTE RESOLUTION
18.1 Governing Law and Language. This Agreement is made in accordance
with and shall be governed and construed under the laws of Japan; provided that
to the extent that any Exhibit hereto contains its own choice of law provision,
the terms of that choice of law provision shall govern and prevail over this
provision with respect to any dispute under the Exhibit in question. This
Agreement has been negotiated and executed in the English language, and the
rules of construction and definitions of the English language shall be applied
in interpreting this Agreement. Unless otherwise specifically required
hereunder, all notices and other communications required or permitted under this
Agreement shall be written in the English language.
18.2 Dispute Resolution. If a dispute arises between the Shareholders
arising out of or in relation to this Agreement, the Shareholders shall use all
reasonable efforts to resolve the dispute through good faith discussions. If a
dispute arises between the Company and PMSI arising out of or in relation to
this Agreement or the Distributorship Agreement, Teijin shall act on behalf of
the Company in the following dispute resolution process. The senior management
of each Shareholder commits itself to respond promptly to any and all such
disputes. In the event that the Shareholders are unable, after exerting all
reasonable efforts, to resolve the said dispute(s), the said dispute(s) shall be
finally settled through binding arbitration on the following basis:
(a) The arbitration shall be conducted by a panel of three (3)
arbitrators under the International Arbitration Rules of the American
Arbitration Association then in force, by which each Shareholder and the Company
agrees to be bound. Within thirty (30) days after notice of arbitration has been
given, each of the Shareholders shall appoint one (1) arbitrator. The
21.
arbitrators appointed by the Shareholders shall then appoint a third arbitrator,
who shall serve as the presiding arbitrator.
(b) If demand for arbitration is made by Teijin (either for
itself or on behalf of the Company), the place of arbitration shall be Boston,
Massachusetts, U.S.A, and if demand for arbitration is made by PMSI, the place
of arbitration shall be Tokyo, Japan.
(c) The language to be used in the arbitration shall be English.
(d) Any arbitrator may be of any nationality, and need not be a
lawyer or hold any other professional status or membership.
(e) The arbitral award shall be rendered in writing, shall state
the reasons for the award, and shall be final and binding upon the Shareholders
(and the Company, as the case may be). In no event shall the arbitral award
include a sum for punitive damages.
(f) Judgment upon any award may be entered by any court of
competent jurisdiction, or application may be made to such a court for judicial
acceptance of the award and any appropriate order including enforcement.
(g) Each of the Shareholders shall bear its own expenses and
attorneys' fees (and Teijin shall bear the Company's expenses and attorneys'
fees in the case where Teijin is acting on behalf of the Company) in connection
with the arbitration.
ARTICLE 19 - ENFORCEMENT
19.1 Severability. In the event that any provision of this Agreement,
or any portion thereof, shall be held invalid, illegal or unenforceable under
applicable law, the remainder of this Agreement shall remain valid and
enforceable.
19.2 Waiver of Obligation. Either Shareholder may waive or reduce in
writing any obligation of or restriction upon the other under this Agreement.
19.3 Specific Performance/Injunctive Relief. Nothing contained herein
shall bar a Shareholder's right to obtain specific performance of the provisions
of this Agreement and injunctive relief against threatened conduct that will
cause loss or damages, under customary equity rules, including applicable rules
for obtaining restraining orders and preliminary injunctions.
22.
19.4 Rights of Shareholders are Cumulative. The Shareholders' rights
hereunder are cumulative and no exercise or enforcement by a Shareholder of any
right or remedy hereunder shall preclude the exercise or enforcement by such
Shareholder of any other right or remedy, hereunder or otherwise, which such
Shareholder is entitled by law to enforce.
19.5 Third Parties. Nothing in this Agreement is intended, nor shall
be deemed, to confer any rights or remedies upon any person or legal entity not
a party hereto.
ARTICLE 20 - GENERAL TERMS
20.1 Assignment. The rights, duties and obligations under this
Agreement shall not be assignable by either Shareholder without the prior
written consent of the other Shareholder. This Agreement shall be binding upon
and inure to the benefit of the Shareholders and their respective legal
representatives, heirs, administrators, executors, successors and permitted
assigns.
20.2 Amendment. This Agreement may be amended only by a written
instrument signed by duly authorized representatives of each of the
Shareholders.
20.3 Notices. All notices and other communications required or
permitted to be given under this Agreement shall be in writing, in the English
language, and shall be effective when delivered personally, or three (3)
business days after being properly sent by commercial overnight carrier, or two
(2) business days after being transmitted by telex or facsimile transmission, or
ten (10) days after being mailed if sent by registered or certified airmail
postage prepaid and addressed to the Shareholder at its address set forth below,
unless by such notice a different person, address or number shall have been
designated for giving notice hereunder:
If to PMSI to:
Polygen Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
23.
If to Teijin, to:
Teijin Limited
Iino ▇▇▇▇▇▇▇▇
▇-▇, ▇▇▇▇▇▇▇▇▇▇-▇▇▇ ▇-▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Manager, Information System
Development Department
20.4 Compliance by Company. Each Shareholder agrees to cause the
Company to perform all acts which may be required of the Company under the
provisions of this Agreement, including but not limited to the provisions of
Section 8.5 (Right of First Refusal to TST) and Article 14 (Secrecy) hereof. A
copy of this Agreement shall be filed in the records of the Company and the
Shareholders shall cause the Company to be bound by all provisions applicable to
it.
20.5 Entire Agreement. This Agreement, together with all the Exhibits
attached hereto and incorporated herein by reference, constitutes the entire,
final, complete and exclusive agreement between the parties hereto and
supersedes all previous agreements, communications and/or representations,
written or oral, with respect to the subject matter hereof.
20.6 Force Majeure. Neither Shareholder shall be liable to the other
for its failure to perform any of its obligations under this Agreement during
any period in which such performance is delayed because rendered impractical or
impossible due to circumstances beyond its reasonable control, provided that the
party experiencing the delay promptly notifies the other of the delay.
20.7 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect any of the terms or
provisions of this Agreement.
20.8 Counterparts. This Agreement may be signed in counterparts, each
of which shall be deemed an original but all of which shall constitute one and
the same instrument.
20.9 Export Compliance. The Shareholders acknowledge that each must
comply with rules and laws of their respective governments relating to
restriction on exports and that their obligations hereunder are conditional upon
such compliance. Each Shareholder agrees to use its best efforts to obtain any
export license, letters of assurance or other documents necessary in the future
with respect to the transfer of technology covered by this Agreement and the
agreements which are Exhibits hereto.
24.
20.10 Parties Advised by Counsel - No Interpretation Against Drafter.
This Agreement has been negotiated between unrelated parties who are
sophisticated and knowledgeable in the matters contained in this Agreement and
who have acted in their own self interest. In addition, each Shareholder has
been represented by legal counsel. Accordingly, any rule of law, including
Section 1654 of the California Civil Code, as well as any other statute, law,
ordinance, or common law principles or other authority of any jurisdiction of
similar effect, or legal decision that would require interpretation of any
ambiguities in this Agreement against the party who has drafted it is not
applicable and is hereby waived. The provisions of this Agreement shall be
interpreted in a reasonable manner to effect the purpose of the Shareholders,
and this Agreement shall not be interpreted or construed against any party to
this Agreement because that party or any attorney or representative for that
party drafted this Agreement or participated in the drafting of this Agreement.
IN WITNESS WHEREOF, Teijin and PMSI have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
written above.
POLYGEN CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇.▇▇▇▇▇▇
Title: President
Teijan Limited
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President and
Chief Executive Officer
25.
LIST OF EXHIBITS
Exhibit A Distributorship Agreement
Exhibit B Common Stock Purchase Agreement
Exhibit C Corporate License Agreement
Exhibit D-2 English Translation of Articles of Incorporation
of the Company
26.
Exhibit A
DISTRIBUTORSHIP AGREEMENT
___________ , 1992
between
POLYGEN CORPORATION
and
TEIJIN MOLECULAR SIMULATIONS INCORPORATED
TABLE OF CONTENTS
Page
1. DEFINITIONS .................................................. 1
(a) "Agreement".......................................... 1
(b) "Customer" .......................................... 2
(c) "Documentation"...................................... 2
(d) "End User License Agreement" ........................ 2
(e) "PMSI Customers" .................................... 2
(f) "Software" .......................................... 2
(g) "Subdistributor...................................... 2
(h) "Sublicense" ........................................ 2
(i) "Territory".......................................... 2
(j) "Trademarks" ........................................ 2
2. APPOINTMENT AND GRANT OF LICENSE.............................. 2
(a) Distributor License.................................. 2
(b) Limited Demonstration/Training/Support License ...... 3
(c) Documentation License................................ 3
(d) Grant of Right to Sublicense ........................ 4
(e) General License Provisions .......................... 4
(f) Exclusivity.......................................... 5
3. ORDER PROCEDURE AND SHIPMENT AND DELIVERY TERMS .............. 6
(a) Orders .............................................. 6
(b) Shipping and Delivery................................ 6
(c) Cancellation of Orders .............................. 7
(d) Localization and Shipment from Japan ................ 7
4. PRICES (LICENSING FEES) AND PAYMENT TERMS .................... 7
(a) Licensing Fees ...................................... 7
(b) Taxes................................................ 8
(c) Payment Schedule .................................... 8
(d) Installation Fees.................................... 8
(e) Maintenance Fees .................................... 8
(f) Discounts to Subdistributors and Customers .......... 9
(g) Hardware ............................................ 9
5. OBLIGATIONS AND FUNCTIONS OF THE COMPANY...................... 9
(a) Management and Support of Distribution .............. 9
(b) Relationship with Subdistributors.................... 9
(c) Adequate Company Facilities and Customer Satisfac-
tion ................................................ 10
(d) Promotion and Marketing.............................. 10
(e) Contract Services.................................... 10
(f) Porting.............................................. 10
i.
(g) OEM Arrangements ....................................... 10
(h) Company's General Businesslike Conduct ................. 11
(i) Technical Support and Other Staff....................... 11
(j) Installation ........................................... 11
(k) Keeping PMSI Informed................................... 11
(l) Reports and Forecasts................................... 11
(m) Competing Representations............................... 11
6. OBLIGATIONS OF PMSI ............................................. 12
(a) Availability of Documentation........................... 12
(b) Training ............................................... 12
(c) Developments ........................................... 12
(d) Third Party OEM Arrangements ........................... 12
(e) Maintenance Upon Termination ........................... 12
(f) Bug Fixes............................................... 13
7. WARRANTIES, DISCLAIMERS AND LIMITATIONS OF LIABILITY............. 13
(a) PMSI's Warranty......................................... 13
(b) Warranty Disclaimers and Limitations ................... 13
(c) No Warranty Pass-Through ............................... 13
(d) Limitation of Liability................................. 13
8. INDEMNITY ....................................................... 14
(a) Proprietary Rights ..................................... 14
(b) Other Indemnity......................................... 15
9. PROPRIETARY RIGHTS............................................... 15
(a) Ownership of Proprietary Rights......................... 15
(b) No Modification......................................... 15
(c) Trademarks and Trade Names ............................. 15
(d) Nondisclosure and Non-Use............................... 16
10. COMPLIANCE WITH LAWS............................................. 17
(a) Export Law Compliance................................... 17
(b) Foreign Corrupt Practices Act........................... 18
(c) Licenses and Permits ................................... 18
11. EFFECTIVE DATE, TERM, TERMINATION AND EFFECT OF
TERMINATION ..................................................... 18
(a) Effective Date ......................................... 18
(b) Term ................................................... 18
(c) Termination by Either Party............................. 19
(d) Termination by PMSI..................................... 19
(e) No Other Rights Upon Termination ....................... 19
(f) Effect of Termination................................... 19
(g) The Company's Duties Upon Termination................... 20
ii.
12. GENERAL TERMS.................................................... 21
(a) Assignment.............................................. 21
(b) Benefits and Binding Nature of Agreement................ 21
(c) Entire Agreement........................................ 21
(d) Force Majeure .......................................... 21
(e) Notice.................................................. 21
(f) Governing Law and Official Language .................... 22
(g) Dispute Resolution...................................... 22
(h) Waiver.................................................. 23
(i) Severability............................................ 23
(j) Rights and Remedies Cumulative.......................... 23
(k) No Agency - Independent Contractors .................... 23
(l) Captions and Section References ........................ 23
(m) Counterparts............................................ 24
(n) No Limitation on Supplier PMSI.......................... 24
(o) Parties Advised by Counsel -- No Interpretation
Against Drafter ........................................ 24
(p) Authority to Enter Into and Execute Agreement .......... 24
APPENDICES
Appendix A: Software
Appendix B: Polygen (PMSI) Standard Software License
Agreement
Appendix C: Price List
Appendix D: Wire Transfer (Bank) Information
Appendix E: PMSI Trademarks
iii.
DISTRIBUTORSHIP AGREEMENT
This Distributorship Agreement is made and entered into as of the ___
day of _____, 1992, by and between Polygen Corporation (doing business as
Polygen Molecular Simulations Incorporated), a Delaware corporation, having its
principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇.▇.▇. ("PMSI") and Teijin Molecular Simulations Incorporated, a corporation
organized under the laws of Japan, with its principal place of business at ▇-▇,
▇▇▇▇▇▇▇▇▇▇-▇▇▇ ▇-▇▇▇▇▇, ▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ("the Company").
RECITALS
A. PMSI and Teijin Limited, a corporation organized under the laws of
Japan with its principal office at ▇-▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇▇▇▇▇, ▇▇▇▇-▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇ ("Teijin") have entered into a Joint Venture Agreement dated as of
February 14, 1992 (the "Joint Venture Agreement"), pursuant to which the Company
was organized as a joint venture corporation under the laws of Japan.
B. PMSI and its subsidiaries are engaged in the design, development and
licensing of proprietary computational chemistry software products and related
documentation.
C. It was contemplated by PMSI and Teijin under the Joint Venture
Agreement that the Company be appointed as PMSI's exclusive distributor in the
Territory (as defined below) of the Software (as defined below).
D. PMSI is willing to grant to the Company an exclusive right to market
and sublicense the Software and related documentation in the Territory,
subject to the terms and conditions set forth in this Agreement.
THEREFORE, in consideration of the premises and mutual covenants herein
contained, the parties hereto agree as follows:
AGREEMENT
1. DEFINITIONS.
For the purpose of this Agreement, the following terms shall have the
following meanings unless otherwise required by the context:
(a) "Agreement" shall mean this Distributorship Agreement as it may be
amended from time to time.
1.
(b) "Customer" shall mean any third party user to whom the Company has,
in accordance with the terms of this Agreement and the End User License
Agreement, granted the right to use the Software.
(c) "Documentation" shall mean the standard user documentation and
sales support materials which PMSI has published or may publish during the term
of this Agreement.
(d) "End User License Agreement" shall mean the Company's standard end
user license agreement, pursuant to which Customers are Sublicensed by the
Company the right to use the Software. Pursuant to Section 2(d)(ii) hereof, the
End User License Agreement shall contain terms that are substantially the same
as those found in PMSI's Standard Software License Agreement, a current copy of
which is attached hereto as Appendix B.
(e) "PMSI Customers" shall mean any third party user in the Territory
to whom PMSI or PMSI's agent has granted the right to use the Software prior to
the Effective Date hereof.
(f) "Software" shall mean the computational chemistry software products
marketed by PMSI or PMSI's subsidiaries and licensed hereunder, to be provided
in machine readable (object code) form, and set forth on Appendix A attached
hereto, as such Appendix A may be amended from time to time by PMSI and the
Company in accordance with Section 2(a) below.
(g) "Subdistributor" shall mean any subdistributor, agent or value-
added reseller authorized by the Company to distribute the Software.
(h) "Sublicense" shall mean the non-exclusive, non-transferable right
(unless otherwise stated) to sublicense (without the further right to
sublicense) Software pursuant to the End User License Agreement.
(i) "Territory" shall mean the entire country of Japan, which Territory
may be expanded from time to time by mutual agreement of PMSI and Teijin to
include other countries in the Asian Pacific Rim such as Korea and Taiwan.
(j) "Trademarks" shall mean any trademark which PMSI owns or has right
to use as may be designated by PMSI from time to time.
2. APPOINTMENT AND GRANT OF LICENSE.
(a) Distributor License. Subject to the terms and conditions
contained herein, PMSI hereby grants to the Company, and the Company hereby
accepts, the exclusive, non-transferable and indivisible right to market the
Software in the Territory during
2.
the term hereof solely for distribution to Customers located in the Territory.
The Company shall have no right to assign or otherwise transfer any or all of
its rights under this Agreement except as may be otherwise provided in Section
2(d) hereof with respect to the licensing and sublicensing of Customers. It is
the intention of the parties to amend Appendix A of this Agreement from time to
time to include within the definition of "Software" under this Agreement, all
computational chemistry software products that are developed or marketed by PMSI
or its subsidiaries in the future during the term of this Agreement, including
extensions of, replacements for, or improvements of the software products
presently enumerated on Appendix A; provided, however, that PMSI may at its
option exclude from "Software" and the scope of this Agreement, software
products for which it does not have distribution rights for the Territory due to
limitations or restrictions imposed by the licensor or party providing such
software products to PMSI. Notwithstanding the grant of exclusivity under this
Section 2(a), PMSI may, upon prior notice to the Company, license Software to
third parties outside the Territory who will bundle the Software with hardware
and distribute those bundled products in the Territory, provided that such
bundling shall be on an OEM basis.
(b) Limited Demonstration/Training/Support License. PMSI hereby grants
and the Company hereby accepts, subject to the terms and conditions specified
herein, an exclusive license, except for licenses to use the Software for
demonstration and support activities that have been or may be granted by PMSI to
OEM's or computer manufacturers, to use in the Territory, during the term
hereof, the Software for demonstration and technical support of the Software,
and for training of Company and Subdistributor personnel on the Software.
(c) Documentation License. PMSI hereby grants and the Company hereby
accepts, subject to the terms and conditions specified herein, an exclusive
license, except for licenses to use the Documentation for demonstration and
support activities that have been or may be granted by PMSI to OEM's or computer
manufacturers, to use the Documentation in the Territory during the term hereof
for the purpose of enabling the Company to carry out its sublicensing and
support obligations to PMSI Customers and Customers under this Agreement. The
Company may, at its expense, translate, copy and repackage the Documentation as
is necessary in connection with its Sublicensing of the Software pursuant to
Section 2(d) hereof. All translations of the Documentation shall, pursuant to
Section 2(e)(i) hereof, include PMSI copyright and other proprietary rights
notices. PMSI shall retain title to and ownership of any such translations of
the Documentation.
3.
(d) Grant of Right to Sublicense.
(i) The licenses granted under this Agreement are non-transferable,
except that the Company is hereby authorized to grant Sublicenses to Customers
of the Company or to Customers of Subdistributors for use of the Software on any
appropriate platform on the terms and conditions set forth below. Sub-licenses
of the Software may only be granted to Customers who represent that they shall
not use the Software to provide any service bureau or consulting service to any
third party, or to re-export the Software without first obtaining written
permission from PMSI. Software provided to Customers shall be in
machine-readable (object) code.
(ii) Until termination of this Agreement, the Company shall
Sublicense and provide the Software and Documentation to Customers pursuant only
to the terms of an End User License Agreement. Promptly following the execution
of this Agreement, the Company shall, at its expense, develop an End User
License Agreement in the Japanese language, together with an English language
translation of the same, which End User License Agreement shall contain terms
that are substantially equivalent to those set forth in PMSI's Standard Software
License Agreement (Appendix B hereto). Without prejudice to the generality of
the foregoing, and in addition to such terms, the End User License Agreement
shall expressly provide that: (x) the End User License Agreement (and any
related software maintenance agreement) between the Customer and the Company
shall be automatically assigned to PMSI or PMSI's designee in the event of
termination of this Agreement for any reason, and (y) the terms of the End User
License Agreement shall govern and control in the event of any inconsistency
between its terms and those of any purchase order between the Customer and the
Company. The Company shall provide PMSI with copies of its End User License
Agreement and the English translation thereof for PMSI's written approval. The
Company shall not transfer Software to a Customer unless and until the Company
shall have obtained a signed copy of the End User License Agreement from the
Customer, and the Company agrees to obtain prior written approval from PMSI to
any modifications or changes to the pre-approved End User License Agreement.
(iii) The Company agrees to use its reasonable commercial efforts
to ensure that each Customer sublicensed pursuant to this Agreement continues to
comply with the terms of the End User License Agreement. The Company shall
maintain adequate Customer records which may be inspected by PMSI during regular
business hours upon reasonable prior written notice.
(e) General License Provisions. All licenses granted herein shall be
further subject to the following:
4.
(i) The Software and Documentation and any copies thereof shall
in all cases remain the exclusive property of PMSI. The Company agrees to
reproduce and include any PMSI copyright notices and other legends both in and
on every copy of the Software or Documentation in every form, including partial
copies and modifications of the Software.
(ii) Except as expressly set forth in Sections 2(c) and 6(a)
hereof, the Company agrees not to copy, provide, or otherwise make available any
of the Software or Documentation, in whole or in part in any form, to any person
other than employees of the Company, Subdistributors and Customers as provided
for in this Section 2. The Company agrees to take appropriate action by
instruction, agreement, or otherwise with the Company's employees or other
persons permitted access hereunder to the Software or Documentation to satisfy
its obligations under this Agreement with respect to the use, copying,
modification, protection, and security of the Software and Documentation.
(iii) The Company agrees not to license or ship any Software to any
person in the Territory which the Company knows or has reason to know, based
upon information provided to it by the licensee at the time of grant of such
license, will cause or permit the Software ultimately to be shipped, licensed or
used outside of the Territory.
(f) Exclusivity. The grant by PMSI to the Company of certain
"exclusive" rights with respect to the Territory shall mean that, unless
otherwise expressly permitted herein, PMSI shall have no right to, directly or
indirectly, exercise, or permit third parties to exercise, those rights in the
Territory. This shall mean, without limitation, that, without the express
written consent of the Company, PMSI:
(i) shall not itself license or ship any Software to any person
in the Territory; and
(ii) shall not license or ship any Software to any person outside
of the Territory which PMSI knows or has reason to know, based upon information
provided to it by the licensee at the time of grant of such license, will cause
or permit the Software ultimately to be shipped, licensed or used in the
Territory;
(iii) provided, however, that PMSI may:
(x) grant licenses to OEM or computer manufacturers to use
the Software and Documentation for demonstration and support activities; and
(y) grant corporate licenses to third parties outside of the
Territory; provided, however, that in the event
5.
PMSI grants a corporate license to a third party located outside of the
Territory that has subsidiaries or facilities in the Territory, and if, at the
time of entering into such corporate license, PMSI has a reasonable belief that
a significant level (if any) of licenses will be shipped into the Territory as a
consequence of such corporate license, PMSI and the Company shall determine in
good faith the manner in which revenues arising from such third party corporate
license are to be divided between PMSI and the Company. Similarly, in the event
the Company grants a corporate license to a third party located in the Territory
that has subsidiaries or facilities outside of the Territory, and if, at the
time of entering into such corporate license, the Company has a reasonable
belief that a significant level (if any) of licenses will be shipped outside of
the Territory as a consequence of such corporate license, the Company and PMSI
shall determine in good faith the manner in which revenues arising from such
third party corporate license are to be divided between the Company and PMSI.
PMSI shall cause PMSI's subsidiaries to comply with the foregoing provisions and
limitations with respect to any Software which they have, directly or
indirectly, licensed to the Company hereunder.
3. ORDER PROCEDURE AND SHIPMENT AND DELIVERY TERMS.
(a) Orders. The Company shall submit written purchase orders for
Software in accordance with the then current order processing procedures of PMSI
as designated from time to time by PMSI. All purchase orders placed with PMSI
for Software shall be subject to acceptance by PMSI at its principal place of
business, such acceptance not to be unreasonably withheld. PMSI shall use
reasonable efforts to meet the resale requirements of the Company and to make
deliveries in accordance with the delivery date on orders so accepted, but PMSI
shall not be liable to the Company, any Subdistributor or Customer or to any
other party, for PMSI's delay in delivery or failure to deliver any products
that are under development by PMSI at the time an order is received. If the
Company manufactures and packages Software in Japan by replicating "master"
copies of the Software and Documentation provided by PMSI, instead of submitting
purchase orders for each copy of the Software and Documentation to PMSI, the
Company shall, within eight (8) business days of the end of each calendar month,
and in addition to the reports required under Section 5(l) hereof, report to
PMSI the date of shipment and quantity of such Software shipped during such
month and the fees for such Software received from PMSI Customers, Customers and
Subdistributors during such month.
(b) Shipping and Delivery. The following shipping and delivery
procedures shall apply to Software and Documentation ordered by the Company from
PMSI pursuant to Section 3(a) above,
6.
but shall not apply to Software and Documentation that is manufactured and
packaged by the Company in Japan for shipment directly to PMSI Customers,
Customers and Subdistributors in the Territory. In the absence of specific
instructions from the Company, the shipping and packaging method used will be at
the discretion of PMSI. Deliveries shall be made F.O.B. (as defined in Incoterms
1990, Publ. No. 460 of the International Chamber of Commerce) from PMSI's
warehouse or manufacturing facility, and shall be shipped to the Company's
address as first set forth in this Agreement. Unless the Company's order
specifies the name of a carrier, PMSI will select the carrier. PMSI shall bear
the risk of loss until such time as a shipment has been placed on board the
carrier, at which time the risk of loss shall be borne by the Company. Any
claims for damage or loss in transit shall be placed by the Company through the
carrier. All shipments will be shipped by PMSI freight collect, or if prepaid,
such freight will be subsequently billed to the Company, and the Company will
reimburse PMSI for such freight in accordance with Section 4 below. PMSI
reserves the right to deliver in advance of estimated delivery dates.
(c) Cancellation of Orders. The Company may cancel any order (or part
thereof) for Software by giving PMSI written notice of such cancellation.
(d) Localization and Shipment from Japan. The Company will as soon as
practical, at its expense, develop a Japanese language version of the
Documentation and/or manufacture, package and ship the Software to PMSI
Customers, Customers and Subdistributors from the Company's facilities in Japan
in accordance with procedures mutually agreed upon between PMSI and the Company.
Following the localization of the Software and Documentation pursuant to this
Section 3(d), the Company may manufacture and package the Software in Japan and
ship such Software directly to PMSI Customers, Customers and Subdistributors in
the Territory. In such case, the Company shall, within eight (8) business days
of the end of each calendar month, and in addition to the reports required under
Section 5(l) hereof, report to PMSI in English the date of shipment and quantity
of such Software shipped during such month and the fees for such Software
received from PMSI Customers, Customers and Subdistributors during such month.
4. PRICES (LICENSING FEES) AND PAYMENT TERMS.
(a) Licensing Fees. In consideration of the licenses and rights granted
to the Company under this Agreement, the Company agrees to pay PMSI the fees
specified in PMSI's price list attached to this Agreement as Appendix C (the
("Price List"), as in effect when each order is accepted by PMSI, less an
initial discount of [*] of such Price List for the period ending on [*]; such
discount to be re-negotiated
* CONFIDENTIAL TREATMENT REQUESTED
7.
annually in good faith by PMSI and the Company. Such fees are exclusive of, and
the Company shall pay, all shipping charges for each order. PMSI agrees to give
written notice to the Company at least sixty (60) days in advance of the
effective date of any change in its Price List. Such changes in PMSI's Price
List shall be made no more frequently than once during each calendar year, shall
be made only after consultation with the Company, and shall be commercially
reasonable.
(b) Taxes. Any and all fees and other amounts due to PMSI from the
Company under this Agreement are exclusive of, and the Company shall pay and
shall indemnify and hold PMSI harmless against (i) any liability for, any sales,
use, property, license, value added, withholding, import, excise or similar tax,
federal, state or local, U.S. and non-U.S., that may be imposed upon or with
respect to the Software products or their delivery, sale, licensing, use,
ownership or possession, and (ii) any duties, tariffs, customs, import and
related fees and charges, exclusive of taxes based on PMSI's net income.
Notwithstanding the foregoing, Japanese income tax may be withheld by the
Company from the license fees payable to PMSI pursuant to Section 4(a) hereof,
so long as such withholding is required by Japanese law. The Company shall
provide PMSI with copies of tax receipts or other documents evidencing that such
taxes withheld have been paid to the Japanese tax authorities. Such evidence
shall be forwarded to PMSI no later than thirty (30) days after such taxes have
been paid.
(c) Payment Schedule. PMSI shall invoice the Company each time Software
is shipped in accordance with the Price List attached hereto as Appendix C. The
Company will make payment to PMSI by the twentieth (20th) of each month for all
shipments made by the Company or by PMSI in the preceding month in U.S. dollars
by wire transfer of immediately available funds to such bank account as is
specified in Appendix D attached hereto, as may be revised from time to time by
PMSI. Invoices shall be considered paid when PMSI is in receipt of such funds or
upon confirmation of receipt by the bank. 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 two percent (2%) per month on such unpaid amounts, or at the
maximum rate permitted by Massachusetts law, if less.
(d) Installation Fees. The Company may not charge Customers
installation fees except as set forth in Appendix C or as otherwise approved in
writing by PMSI.
(e) Maintenance Fees. For each Software product, maintenance and
updates shall be provided by the Company, on behalf of PMSI, to PMSI Customers
and Customers. This maintenance service shall be provided to PMSI Customers and
Customers in accordance with PMSI's policies and the terms of the Company's
standard
8.
software maintenance agreement to be entered into between the Company and PMSI
Customers or Customers, which terms shall be mutually determined and approved by
PMSI and the Company (the "Software Maintenance Agreement"). Unless and until
the maintenance pricing shall be adjusted by PMSI in accordance with the terms
of this Agreement, the maintenance pricing to be paid to PMSI for a given
Software product shall conform to the maintenance pricing schedule shown in
attached Appendix C, less an initial discount of [*] to be retained by the
Company for the period ending on [*]; such discount to be re-negotiated annually
in good faith by PMSI and the Company. The fee for the annual maintenance
contracts and their renewals shall be paid in advance of the effective date or
renewal date thereof (as the case may be) by the Company to PMSI.
(f) Discounts to Subdistributors and Customers. Nothing contained
herein shall prevent or otherwise limit the Company's ability to grant
additional discounts to Subdistributors and/or Customers; provided, however,
that all such discounts are and shall be borne entirely by the Company or its
Subdistributor.
(g) Hardware. PMSI shall sell to the Company workstations manufactured
by Silicon Graphics Inc. ("SGI") at [*] of the Japanese list
price for the period ending on March 31, 1993. Thereafter, PMSI shall use
reasonable commercial efforts to extend or continue its existing relationships
with SGI and other value-added reseller hardware vendors in order to offer and
sell such hardware to the Company at a favorable price. The Company agrees to
purchase such hardware from PMSI as long as PMSI is able to offer such hardware
at prices equal to or more favorable than prices available to the Company from
other sources.
5. OBLIGATIONS AND FUNCTIONS OF THE COMPANY.
(a) Management and Support of Distribution. The Company shall be
responsible for managing and supporting the distribution of the Software in the
Territory, including the management of Subdistributors and value-added reseller
relationships.
(b) Relationship with Subdistributors. The Company may, in its
reasonable discretion, appoint and authorize Subdistributors to subdistribute
the Software in the Territory. In doing so, the Company shall enter into
agreements or arrangements with such Subdistributors that maximize, and shall
act to the best interests of, the distribution and support of the Software in
the Territory. The Company shall use reasonable commercial efforts to ensure
compliance by such Subdistributors with all of the Company's obligations under
this Agreement, and at all times transact with such Subdistributors on an
arms'-length basis.
*CONFIDENTIAL TREATMENT REQUESTED
9.
(c) Adequate Company Facilities and Customer Satisfaction. The Company
will establish, staff, equip and maintain such place or places of business in
such location or locations in the Territory as may be necessary to provide good
customer service and support and marketing coverage in the Territory. The
Company shall use its best efforts to ensure customer satisfaction including
maintaining a qualified sales force to promote the sale/Sublicensing of the
Software.
(d) Promotion and Marketing. The Company agrees to use its best efforts
to market, distribute, Sublicense and support the Software throughout the
Territory and further agrees that its marketing and advertising efforts will be
of high quality, in good taste, and will preserve the professional image and
reputation of PMSI and the Software. The Company agrees to include in all
related advertising materials all applicable proprietary rights' notices and any
other notices of PMSI as they appear on or in the Software. PMSI may provide, at
its option, a reasonable amount of advertising material in English, as requested
by the Company, for use in the Company's efforts to market the Software. All
such material shall remain the property of PMSI and, upon request, the Company
agrees to return same to PMSI without cost to PMSI. If required by Customer
demand, the Company shall translate all such materials into the Japanese
language or other language necessary for proper marketing of the Software in the
Territory and provide such materials to PMSI for review. PMSI shall retain title
to and ownership of any such translations. The Company agrees to refrain from
making any claim or representation concerning the Software in excess of those
made by PMSI.
(e) Contract Services. The Company may enter into application contracts
with PMSI Customers or Customers whereby the Company will provide services to
address customer problems related to the use of the Software in the Territory.
The Company may also act as PMSI's agent with respect to the development or
establishment of strategic technology partner (STP) relationships with major
Customers and PMSI Customers in the Territory.
(f) Porting. The Company shall act as PMSI's agent with respect to
establishing and managing porting contracts with computer companies in the
Territory. PMSI agrees to use its best commercial efforts to supply information
necessary to complete porting that is reasonably requested by the Company.
(g) OEM Arrangements. The Company shall endeavour to establish OEM
arrangements with third parties in the Territory, and PMSI agrees to use its
best commercial efforts to supply information necessary to establish such
arrangements.
10.
(h) Company's General Businesslike Conduct. The Company shall at all
times conduct its business in a businesslike manner and will not engage in any
deceptive, misleading, illegal or unethical business practice or any practice
that will reflect unfavorably on PMSI or the Software.
(i) Technical Support and Other Staff. The Company agrees to develop,
maintain and train or otherwise provide a competent technical and scientific
support organization for the Software that will be responsible for the
installation and on-site servicing of the Software, the provision of remote
telephone support services, and the provision of training and application
development to PMSI Customers, Customers and Subdistributors. The Company shall
at all times have a sufficient number of competent office, sales, service and
other employees to carry out its obligations under this Agreement.
(j) Installation. The Company shall be responsible for the installation
of the Software at Customers' facilities, either directly or through
Subdistributors.
(k) Keeping PMSI Informed. The Company agrees to use its best efforts
to keep PMSI fully informed of all governmental, commercial and industrial
activities and plans which affect, or could affect, the Software in the
Territory. The Company shall consult with PMSI regarding any advertising or
trade practice which might affect the good name, trademarks, goodwill, or
reputation of PMSI or the Software.
(l) Reports and Forecasts. The Company shall furnish to PMSI in
English: (i) within eight (8) business days after the end of each calendar
month, a report on the monthly sales and Sublicensing of the Software in the
Territory for the preceding month, identifying the Software shipped by the
Company or Subdistributors to Customers and the respective locations and contact
persons of such Customers, and showing the price and national currency involved
in which the Software was sold/Sublicensed and for which services relating
thereto were provided, and (ii) a rolling six (6)-month forecast of sales on a
monthly basis. The Company shall also furnish PMSI with such other reports as
PMSI may reasonably require from time to time.
(m) Competing Representations. In consideration for the license granted
to the Company under Section 2 above, the Company agrees that during the term of
this Agreement, the Company shall not develop, contract to develop, manufacture,
sell, license, lease or otherwise distribute or exploit in any manner any
product that is directly competitive with the Software in the Territory. For the
purposes of this Agreement, a product shall be considered to be competitive with
the Software if the sale of that product could result in lower sales of the
Software.
11.
6. OBLIGATIONS OF PMSI.
(a) Availability of Documentation. PMSI shall provide the Company with
one (1) copy of all Documentation in the English language including sales
literature, training manuals, operator manuals, graphic materials, and other
documentation relating to the Software. The Company may translate, copy, and
repackage the Documentation as is necessary in accordance with the terms of
Section 2(c) above.
(b) Training. PMSI will provide intensive training for a reasonable
number of the Company's personnel at PMSI's facilities in the U.S.A., for a
reasonable number of days per year. The Company shall pay all travel, living and
incidental expenses of its personnel. PMSI shall also provide technical
instructors for seminars to be held in Japan on a periodic basis, subject to the
availability and reasonable schedules of such instructors. All travel, living
and incidental expenses of such instructors shall be borne by the Company.
(c) Developments. During the term of this Agreement, PMSI will use
reasonable commercial efforts to provide the Company with full and complete
information concerning all improvements, updates, enhancements, and
modifications to the Software and will provide the Company with such
improvements, updates, enhancements and modifications for distribution to
Customers at the same time as PMSI makes any such improvement, update,
enhancement or modification generally available to its other customers. In
addition, if there is any software product which is under development by PMSI
which may be added to the definition of "Software" pursuant to Section 2(a)
hereof, PMSI shall use its reasonable commercial efforts to provide the Company,
on a regular basis as it becomes available, with full and complete information
concerning such product, including, but not limited to, the projected
development and shipping schedule, beta release, documentation and other
information that would assist with pre-marketing preparation.
(d) Third Party OEM Arrangements. In the event that PMSI enters into an
OEM arrangement with a third party relating to the manufacture and distribution
of bundled PMSI software and third party hardware products (as contemplated
under Section 2(a) hereof), which arrangement includes distribution by such
third party in the Territory being served by the Company, PMSI agrees to
negotiate in good faith with the Company to have the Company provide technical
support for such bundled products in the Territory (if necessary). PMSI shall
give advance written notice to the Company of such OEM arrangements if support
by the Company is necessary.
(e) Maintenance Upon Termination. Upon the termination of this
Agreement and provided that the relevant End User License
12.
Agreements and Software Maintenance Agreements have been assigned to PMSI or its
designee in accordance with Section 11(f)(iii) hereof, PMSI shall use its best
efforts to arrange for the continued maintenance and support of PMSI Customers,
Customers and the Software in the Territory.
(f) Bug Fixes. PMSI will use its reasonable commercial efforts to
notify the Company in writing of any outstanding bugs or other defects in the
Software and will endeavour to correct such bugs and defects and supply such
corrections to the Company in accordance with PMSI's reasonable commercial
procedures.
7. WARRANTIES, DISCLAIMERS AND LIMITATIONS OF LIABILITY.
(a) PMSI's Warranty. All Software is warranted as provided in Section
10 of the current form of PMSI's Standard Software License Agreement attached
hereto as Appendix B, the provisions of which are made a part hereof by
reference.
(b) Warranty Disclaimers and Limitations. THE WARRANTIES DESCRIBED IN
7(a) ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. The
warranties shall apply only if PMSI's examination discloses to PMSI's
satisfaction that alleged defects actually exist and were not caused by misuse,
unauthorized modifications, neglect, improper installation or testing, attempts
to repair, or the like, or by accident, fire, power surge or failure, or other
hazard.
(c) No Warranty Pass-Through. The Company shall not pass through to its
Customers or any other third party the warranties made by PMSI under this
Section 7, shall make no other representations to its Customers or any other
third party on behalf of PMSI, and shall expressly indicate to its Customers
that they must look solely to the Company in connection with any problems,
warranty, claim or other matters concerning the Software. No warranty,
representation or agreement herein shall be deemed to be made for the benefit of
any Customer or any other third party. Notwithstanding the foregoing, the
Company may pass through only to Customers only those warranties specified in
Section 10 of the attached PMSI Standard Software License Agreement (Appendix B
hereto). Repair or replacement of code or other items does not extend the
warranty period beyond the initial warranty period which shall begin on the date
of installation of the Software at the Customer's facilities.
(d) Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE
FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS
OF PROFITS, REVENUE, DATA, OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY,
WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF THE
13.
OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. PMSI'S LIABILITY FOR ANY DAMAGES UNDER THIS AGREEMENT SHALL IN NO EVENT
EXCEED THE AMOUNTS ACTUALLY PAID BY THE COMPANY TO PMSI UNDER THIS AGREEMENT.
SOME STATES AND JURISDICTIONS OUTSIDE OF THE UNITED STATES DO NOT ALLOW THE
LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIABILITY FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY. THE
COMPANY ACKNOWLEDGES THAT THE ALLOCATION OF RISKS AND BENEFITS UNDER THIS
AGREEMENT ARE BASED ON, AND THE LICENSE FEES UNDER THIS AGREEMENT WOULD BE
GREATER IN THE ABSENCE OF, THE LIMITATIONS DESCRIBED ABOVE.
8. INDEMNITY.
(a) Proprietary Rights. PMSI will defend the Company against a claim
that the Software furnished and used within the scope of this Agreement
infringes any third party patent, copyright or other intellectual property right
("Claim"), and PMSI will indemnify the Company for any damages finally awarded
by a court of competent jurisdiction based upon a Claim, or any amount that is
paid to finally settle a Claim, so long as PMSI has approved the settlement in
writing, provided that: (i) the Company notifies PMSI in writing within thirty
(30) days of any Claim, (ii) PMSI has sole control of the defense and all
related settlement negotiations, and (iii) the Company provides PMSI with the
assistance, information and authority necessary to perform the above. Reasonable
out-of-pocket expenses incurred by the Company in providing such assistance will
be reimbursed by PMSI.
(i) Notwithstanding the foregoing, PMSI shall have no liability for any
claim of patent or copyright infringement based on: (A) a modification by the
Company of the Software or the use of a superseded or altered release of the
Software if such infringement would have been avoided by the use of current or
unaltered releases of the Software that PMSI provides to Distributor, or (B) the
combination, operation or use of the Software furnished under this Agreement
with products or data not furnished by PMSI if such infringement would have been
avoided by the use of the Software without such products or data.
(ii) In the event the Software is held or is believed by PMSI to
infringe, PMSI shall have the option, at its expense, to (A) modify the Software
to be non-infringing, (B) obtain for the Company the right to continue using and
distributing the Software, or (C) terminate this Agreement with respect to the
infringing Software and refund the fees paid for such Software, to the extent
each Customer, if any, requests a corresponding refund, but in any event the
amount of the refund shall equal [*].
14.
* CONFIDENTIAL TREATMENT REQUESTED
(iii) This Section 8(a) states the Company's exclusive remedy and
PMSI's entire liability for any infringement.
(b) Other Indemnity. The Company shall be responsible and shall
indemnify and hold PMSI harmless for any and all losses, liability or damages
arising out of or incurred in connection with (i) Company's, Subdistributors' or
Customers' marketing, distribution, use or Sublicensing of the Software, except
for valid warranty claims under Section 7 above and valid third party
infringement Claims under Section 8(a) above, and (ii) any unauthorized
representation, warranty or agreement, express or implied, made by Company, any
Subdistributor or Customer to or with any other Customers or any third party
with respect to the Software.
9. PROPRIETARY RIGHTS.
(a) Ownership of Proprietary Rights. PMSI shall retain all of its
rights, title and interest in and to and ownership of all copyrights,
trademarks, trade secrets, patents, mask works and all other industrial and
intellectual property embodied in the Software including any improvements,
updates, enhancements or modifications to the Software. Except as otherwise
expressly provided in this Agreement, the Company has no right, title or
interest in the Software or any industrial or intellectual property relating to
the Software and shall not copy, reproduce, reverse engineer, decompile,
disassemble, or otherwise use, in whole or in part, the Software. The Company
shall keep each and every item to which PMSI retains title free and clear of all
claims, liens, and encumbrances except those of PMSI, and any act of the
Company, voluntary or involuntary, purporting to create a claim, lien, or
encumbrance on such item shall be void.
(b) No Modification. Except as required under Section 3(d) hereof, the
Company shall distribute the Software only in the form shipped by PMSI, and the
Company shall not alter, modify, or change the Software or its package or use in
relation to any product or any trademark of the Company or any third parties
without the prior written consent of PMSI.
(c) Trademarks and Trade Names.
(i) In connection with the distribution or advertising of the Software,
the Company may use such trade names or Trademarks of PMSI listed in Appendix E,
as may be amended from time to time by PMSI. The Company acknowledges the
validity of such Trademarks and trade names and PMSI's ownership thereof. All
such marks and names and any additional marks of which PMSI may in the future be
the proprietor will bear the designation (TM) or the designation (R) as
specified by PMSI. The Company agrees to submit to PMSI any published material
not previously reviewed by
15.
PMSI containing references to the Software for PMSI's approval prior to the
publication or release of such published material, such approval shall not be
unreasonably withheld. The Company shall not challenge PMSI's rights to use the
Trademarks or trade names which PMSI may apply to or use in connection with the
Software. If the Company in the course of its business in the distribution of
the Software acquires any goodwill or reputation in any of the Trademarks or
trade names of PMSI applied thereto, then at the expiration or termination of
this Agreement all such goodwill or reputation automatically shall vest in PMSI
without any separate payment or other consideration of any kind to Distributor,
and the Company agrees to take all such actions necessary to effect such
vesting.
(ii) The Company shall, at the request and expense of PMSI, do such
acts or things as PMSI may reasonably require for the purpose of obtaining,
maintaining, enforcing and preserving any of the Trademarks, trade names or
other proprietary rights of PMSI in the Territory; provided, however, that the
Company agrees that only PMSI has the right to enjoin any infringement or
registration by a third party of the trademarks, trade names or similar rights.
In the event that any unlawful copying of the Software, infringement of PMSI's
rights in the Software, or infringement or registration by a third party of
the trademarks, trade names or other property rights of PMSI in the Territory
comes to the attention of the Company, the Company shall immediately inform PMSI
in writing, stating the full facts of the infringement or registration known to
it, including the identity of the suspected infringer or registrant, the place
of the asserted infringement or registration and evidence thereof. The Company
agrees to cooperate fully with PMSI at the expense of PMSI if PMSI sues to
enjoin such infringements or to oppose or invalidate any such registration.
Notwithstanding the foregoing, in the event that PMSI refuses in writing to
enjoin such infringements or to oppose or invalidate any such registration
following a written request by the Company to do so, the Company may, at its
expense, ▇▇▇ to enjoin or otherwise oppose any such infringement of PMSI's
proprietary rights.
(iii) Except as permitted herein, the Company shall not (nor shall it
attempt to) adopt, use, or register any acronym, Trademark, trade names or other
marketing name of PMSI or any confusingly similar work or symbol as part of the
Company's own name or the name of any of its affiliates or the names of the
products it markets.
(d) Nondisclosure and Non-Use.
(i) Without the prior written consent of the supplying party, no
receiving party, its officers, directors, agents or employees shall, in the case
of Confidential Information (as defined hereafter) of a business nature, both
during the term of
16.
this Agreement and for a period of three (3) years after termination of this
Agreement, and in the case of Confidential Information of a technical nature,
both during the term of this Agreement and for period of ten (10) years after
the termination of this Agreement, in any manner whatsoever disclose or
communicate such information to a third party, except as legally required by a
governmental or judicial agency, and each party agrees to keep such Confidential
Information strictly confidential. For the purpose of this Agreement, the term
"Confidential Information" shall mean and include any and all financial and
other information relating to PMSI's or the Company's business and their
respective relationships with Teijin, the Software, the Documentation,
information relating to the Software (including but not limited to technical
information such as design specifications, instructions, and know-how) acquired
either directly or indirectly by either party hereunder; provided, however, that
all such Confidential Information shall be clearly marked as "confidential" and
the term "Confidential Information" shall not include any information which:
(1) has become or entered the public domain through no fault
of the receiving party; or
(2) was in the demonstrable possession of the receiving party
prior to or at the time of receipt hereunder; or
(3) was or has been obtained lawfully from a third party; or
(4) has been independently developed by the receiving party
without violation of its obligations under this Agreement, and which independent
development is properly documented by such party.
(ii) Each party agrees, during the term of this Agreement, that it
shall not use any Confidential Information obtained from the other for any
purpose whatsoever except in a manner expressly provided for in this Agreement.
The provisions of this Section 9(d) shall survive the termination of this
Agreement.
10. COMPLIANCE WITH LAWS.
(a) Export Law Compliance. The Company understands and recognizes that
the Software and other materials made available to it hereunder may be subject
to the export administration regulations of the United States Department of
Commerce and other United States government regulations related to the export of
technical data and equipment and products produced therefrom. The Company
represents that it is familiar with and agrees to comply with all such
regulations, including any future modifications thereof, in connection with the
distribution of the Soft-
17.
▇▇▇▇. The Company agrees that it will not export or re-export outside the
Territory, directly or indirectly, any Software or technical data relating to
the Software without the prior written consent of PMSI and without complying
with all applicable regulations. The Company agrees to obtain the same agreement
from each of its Subdistributors and Customers. The Company hereby agrees to
indemnify and hold PMSI harmless from any breach of this Section 10(a) by it,
any Subdistributor and/or Customer.
(b) Foreign Corrupt Practices Act. The Company hereby agrees to refrain
from making any payments to third parties which could cause PMSI to violate the
U.S. Foreign Corrupt Practices Act. The Company hereby agrees to indemnify and
hold PMSI harmless from any breach of this Section 10(b).
(c) Licenses and Permits. The Company shall be responsible for
obtaining at its own expense, and shall use its best efforts to obtain, any and
all required non-U.S. governmental authorizations, including without limitation
any import licenses and foreign exchange permits. The Company shall provide
proof of compliance with required non-U.S. governmental authorization to PMSI
upon request. PMSI shall not be liable if any authorization is delayed, denied,
revoked, restricted or not renewed. The Company shall bear all such risks and
costs caused thereby. In addition, if this Agreement is terminated due to a
default of the Company, PMSI or its designee shall be exclusively entitled,
free-of-charge, to any rights the Company may have acquired as a result of, or
in, governmental approvals, authorizations or permits. If this Agreement is
terminated due to a default of PMSI, PMSI shall pay the Company a reasonable sum
to be mutually agreed upon for the exclusive transfer to PMSI or its designee of
any such rights the Company may have acquired as a result of, or in, said
governmental approvals, authorizations or permits. The Company agrees to use its
best efforts to effect the transfer of interest in the foregoing approvals,
authorizations or permits to PMSI or to any third party so identified by PMSI.
11. EFFECTIVE DATE, TERM, TERMINATION AND EFFECT OF TERMINATION.
(a) 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")
(b) Term. This Agreement shall commence on the Effective Date and shall
remain in full force and effect until the dissolution of the Company pursuant to
the terms of the Joint Venture Agreement or unless the parties otherwise agree.
18.
(c) Termination by Either Party. Notwithstanding anything in this
Agreement to the contrary, either party shall have the right, in addition and
without prejudice to any other rights or remedies, to 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 thirty (30) days
of the receipt by the party in default of notice specifying the breach and
requiring its remedy.
(d) Termination by PMSI. PMSI shall have the right, in addition and
without prejudice to any other rights or remedies, to terminate this Agreement:
(i) upon the termination of the Joint Venture Agreement for any
reason, unless otherwise mutually agreed between PMSI and Teijin where all the
shares of the Company are acquired by either Teijin or PMSI pursuant to Section
12 of the Joint Venture Agreement; or
(ii) upon written notice at any time for breach of Section 9
hereof (Proprietary Rights).
(e) No Other Rights Upon Termination. It is expressly understood and
agreed that the rights of termination as provided in this Agreement are absolute
and that both parties hereto have considered the making of expenditures in
preparing for performance as contemplated by this Agreement and possible losses
and damages incident and resulting to them that may result in the event of its
termination. Therefore, in agreeing to said terms of termination it is with the
full knowledge of such possibilities and except as provided herein neither party
hereto shall be responsible to the other for compensation, damages or otherwise
by reason of such termination of this Agreement at any time. Further, no
payments in the nature of severance payments shall be due either party upon
termination of this Agreement at any time. Without limiting the generality of
the foregoing, the Company understands and acknowledges that any contracts or
other arrangements it enters into with any third parties with respect to the
Software will be subject and subordinate to the rights of termination set forth
in this Agreement. The Company will indemnify and hold PMSI harmless from any
and all liability, loss, damages, costs or expenses incurred by PMSI in
connection with claims by any such third party made because of the termination
of this Agreement.
(f) Effect of Termination. Termination or expiration of this Agreement
shall not affect any other rights of either party which may have accrued up to
the date of such termination or expiration and the Company shall not be relieved
of any obligation for any sums due to PMSI for the Software or services covered
by purchase orders accepted prior to termination or expi-
19.
ration or any confidentiality obligations of the Company under Section 9(d) of
this Agreement. Upon termination:
(i) the due date of all outstanding invoices to the Company for
the Software shall automatically be accelerated to become due and payable by
immediate wire transfer on the effective date of termination, even if longer
terms have been previously agreed to;
(ii) all orders or portions thereof remaining unshipped as of the
effective date of termination shall automatically be cancelled; and
(iii) all executed End User License Agreements and Software
Maintenance Agreements between Customers and the Company then in effect, and all
rights and obligations thereunder, shall immediately be assigned by the Company
to PMSI or its designee.
(g) The Company's Duties Upon Termination. Upon the termination or
expiration of this Agreement, the Company agrees to do the following:
(i) refrain thereafter from representing itself as a distributor
of PMSI or using any trademarks or trade names of PMSI;
(ii) immediately return to PMSI or immediately destroy (A) all
Confidential Information of PMSI including but not limited to advertising matter
and (B) all other printed material in its possession or under its control
containing or bearing any trademark or trade names of PMSI;
(iii) take all appropriate steps to remove and cancel its listing in
telephone books, directories, public records or elsewhere, which state or
indicate that the Company is a distributor of PMSI;
(iv) make available to PMSI for a period of one (1) year for
inspection and copying all books and records of the Company that pertain to the
Company's performance of and compliance with its obligations, warranties and
representations under this Agreement; and
(v) immediately cease using the applicable Software, and certify
in writing to PMSI within thirty (30) days after such termination that the
Company has either destroyed, permanently erased or returned to PMSI the
Software, all related Documentation and all copies. This requirement applies to
copies in all forms, partial and complete, in all types of media and computer
memory and storage, and whether or not modified or merged into other programs or
materials.
20.
12. GENERAL TERMS.
(a) Assignment. Except in connection with the sale of all or
substantially all of PMSI's assets, or its business (by merger or otherwise), or
any similar transfer by PMSI, any attempted assignment of the rights or
delegation of the obligations under this Agreement shall be void without the
prior written consent of the non-assigning or non-delegating party.
(b) Benefits and Binding Nature of Agreement. 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 the
parties hereto.
(c) Entire Agreement. This Agreement, together with the Appendices
attached hereto and incorporated herein by reference, embodies the final,
complete and exclusive understanding between the parties, and replaces and
supersedes all previous agreements, understandings or arrangements between the
parties with respect to its subject matter. No modification or waiver of any
terms or conditions hereof, nor any representations or warranties shall be of
any force or effect unless such modification or waiver is in writing and signed
by an authorized officer of each party hereto. It is expressly agreed that any
of the terms and conditions of the Company's purchase order or the like shall be
superseded by the terms and conditions of this Agreement.
(d) Force Majeure. Neither party shall be liable to the other for its
failure to perform any of its obligations under this Agreement, 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,
explosion, acts of God, labor trouble or shortage, inability to obtain or
shortage of materials, equipment or transportation, insurrections, riots, war,
acts or requirements of the governments in any state, provided that the party
experiencing the delay promptly notifies the other of the delay. Any
installation, warranty, technical support, consulting services and other
services to be performed at the Company's facility may not be performed if PMSI
reasonably believes conditions at such facility represent a safety or health
hazard to any PMSI employee.
(e) Notice. All notices concerning this Agreement shall be written in
the English language and shall be deemed to have been received (i) ten (10) days
after being properly airmailed, postage prepaid, (ii) three (3) business days
after being properly sent by commercial overnight courier, or (iii) two (2)
business days after being transmitted by confirmed telecopy, in each case
addressed to the relevant party at its address first
21.
set forth in this Agreement to the attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President, in
the case of PMSI, and to the attention of ______________________________________
in the case of the Company.
(f) Governing Law and Official Language. This Agreement is made in
accordance with and shall be governed and construed under the laws of the State
of Massachusetts, U.S.A., as applied to agreements executed and performed
entirely in Massachusetts by Massachusetts residents and in no event shall this
Agreement be governed by the United Nations Convention on Contracts for the
International Sale of Goods; provided, however, that the provisions of this
Agreement relating to dispute resolution, as set forth in Section 12(g) below,
shall be governed exclusively by the United States Arbitration Act (9 U.S.C.
Section et. seq.) notwithstanding any different or contrary provision of state
law. The official text of this Agreement and any Appendix or any notice given or
accounts or statements required by this Agreement shall be in English. In the
event of any dispute concerning the construction or meaning of this Agreement,
reference shall be made only to this Agreement as written in English and not to
any other translation into any other language.
(g) Dispute Resolution. If a dispute arises between the parties arising
out of or in relation to this Agreement, the parties shall use all reasonable
efforts to resolve the dispute through good faith discussions. The senior
management of each of PMSI and the Company commits itself to respond promptly to
any such dispute. In the event that PMSI and the Company are unable, after
exerting all reasonable efforts, to resolve the said dispute, the said dispute
shall be finally settled through binding arbitration on the following basis:
(i) The arbitration shall be conducted by a panel of three (3)
arbitrators under the International Arbitration Rules of the American
Arbitration Association then in force, by which each of PMSI and the Company
agrees to be bound. Within thirty (30) days after notice of arbitration has been
given, each of PMSI and the Company shall appoint one (1) arbitrator. The
arbitrators appointed by the parties shall then appoint a third arbitrator, who
shall serve as the presiding arbitrator.
(ii) If demand for arbitration is made by the Company, the place of
arbitration shall be Boston, Massachusetts, U.S.A, and if demand for arbitration
is made by PMSI, the place of arbitration shall be Tokyo, Japan.
(iii) The language to be used in the arbitration shall be English.
22.
(iv) Any arbitrator may be of any nationality, and need not be a
lawyer or hold any other professional status or membership.
(v) The arbitral award shall be rendered in writing, shall state
the reasons for the award, and shall be final and binding upon the parties. In
no event shall the arbitral award include a sum for punitive damages.
(vi) Judgment upon any award may be entered by any court of
competent jurisdiction, or application may be made to such a court for judicial
acceptance of the award and any appropriate order including enforcement.
(vii) Each of PMSI and the Company shall bear its own expenses and
attorneys' fees in connection with the arbitration.
(h) Waiver. 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.
(i) Severability. In the event that any provision of this Agreement
shall be unenforceable or invalid under any applicable law or be so held by
applicable court decision, such unenforceability or invalidity shall not
render this Agreement unenforceable or invalid as a whole, and, in such event,
such provision shall be changed and interpreted so as to best accomplish the
objectives of such unenforceable or invalid provision within the limits of
applicable law or applicable court decisions.
(j) Rights and Remedies Cumulative. Except as expressly provided
herein, the rights and remedies provided in this Agreement shall be cumulative
and not exclusive of any other rights and remedies provided by law or otherwise.
(k) No Agency - Independent Contractors. The Company shall act as an
independent contractor under the terms of this Agreement. The Company is not,
and shall not be deemed to be, an employee, agent, partner or legal
representative of PMSI for any purpose. The Company shall not be entitled to
enter into any contracts in the name of, or on behalf of PMSI, nor shall the
Company be entitled to pledge the credit of PMSI in any way or hold itself out
as having authority to do so.
(l) Captions and Section References. The section headings appearing in
this Agreement are inserted only as a matter of convenience and in no way
define, limit, construe or describe the scope or extent of such section or in
any way affect such section.
23.
(m) 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.
(n) No Limitation on Supplier PMSI. Nothing in this Agreement shall be
construed so as to preclude PMSI from selling or otherwise marketing any of the
Software to (i) any Customer outside the Territory, (ii) any value added
reseller or original equipment manufacturers outside the Territory, or (iii) any
other distributors outside the Territory.
(o) Parties Advised by Counsel -- No Interpretation Against Drafter.
This Agreement has been negotiated between unrelated parties who are
sophisticated and knowledgeable in the matters contained in this Agreement and
who have acted in their own self interest. In addition, each party has been
represented by legal counsel. Accordingly, any rule of law, including Section
1654 of the California Civil Code, as well as any other statute, law, ordinance,
or common law principles or other authority of any jurisdiction of similar
effect, or legal decision that would require interpretation of any ambiguities
in this Agreement against the party who has drafted it is not applicable and is
hereby waived. The provisions of this Agreement shall be interpreted in a
reasonable manner to effect the purpose of the parties, and this Agreement shall
not be interpreted or construed against any party to this Agreement because that
party or any attorney or representative for that party drafted this Agreement or
participated in the drafting of this Agreement.
(p) 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 and that there
are no other outstanding agreements or obligations inconsistent with the terms
and provisions hereof.
24.
Appendix A
SOFTWARE
(attached)
26.
APPENDIX B
POLYGEN (PMSI) STANDARD SOFTWARE LICENSE AGREEMENT
(attached)
27.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement
to be signed and delivered by their duly authorized representatives as of the
date first set forth above.
POLYGEN CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
TEIJIN MOLECULAR SIMULATIONS INCORPORATED
By: ______________________
Name:
Title:
25.
Appendix A: Software
POLYGEN/MOLECULAR SIMULATIONS
MOLECULAR MODELING PRODUCTS PRICE LIST
PRICING SUMMARY
JAPAN END-USER BUNDLED PRICE LIST
EFFECTIVE JANUARY 01, 1992
--------------------------------------------------
PRICES ARE VALID ONLY WHEN PURCHASED WITH HARDWARE
--------------------------------------------------
Prices include software documentation, but do not include
hardware, installation, training, or continuing license fees.
SYSTEM SOFTWARE DESKTOP
-----------------------------------------------------------------------------------------------------------------------
PART NUMBER DESCRIPTION REVISION AVAILABILITY COMMERCIAL ACADEMIC ▇▇▇. SU
-----------------------------------------------------------------------------------------------------------------------
XGBEXX BIOGRAF (Indigo) 2.2 Now Yen 5,250,000 Yen 2,265,000 4320
XGNMEXX NMRgraf (Indigo) 2.2 Now Yen 3,500,000 Yen 1,750,000 2880
POLEXX Polaris (Indigo) 3.0 Now Yen 2,625,000 Yen 1,312,500 2160
XGPGEXX POLYGRAF (Indigo) 2.2 Now Yen 7,000,000 Yen 3,500,000 5760
QNTXX QUANTA (Indigo) 3.2 Now Yen 3,750,000 Yen 1,875,000 3600
QINORGXX Inorganic Solids Modeling 3.2 Now Yen 3,750,000 Yen 1,875,000 2550
QPOLYXX Polymer Dynamics 3.2 Now Yen 3,750,000 Yen 1,875,000 2550
QPROTXX Protein Modeling 3.2 Now Yen 3,750,000 Yen 1,875,000 2550
QSTARXX X-Ray Structure Analysis 3.2 Now Yen 3,750,000 Yen 1,875,000 2550
NOTE: If QUANTA is purchased, at least one copy of networked CHARMm
must be available for use.
SYSTEM SOFTWARE PERSONAL
-----------------------------------------------------------------------------------------------------------------------
PART NUMBER DESCRIPTION REVISION AVAILABILITY COMMERCIAL ACADEMIC ▇▇▇. SU
-----------------------------------------------------------------------------------------------------------------------
XGBEXX BIOGRAF (SGI/IBM) 2.2 Now Yen 7,000,000 Yen 3,500,000 5760
XGNMEXX NMRgraf (SGI/IBM) 2.2 Now Yen 5,250,000 Yen 2,625,000 4320
POLEXX Polaris (SGI) 3.0 Now Yen 4,375,000 Yen 2,187,500 3600
XGPGEXX POLYGRAF (SGI/IBM) 2.2 Now Yen 10,500,000 Yen 5,250,000 8640
QNTXX QUANTA (SGI/IBM) 3.2 Now Yen 6,240,000 Yen 3,120,000 6000
QINORGXX Inorganic Solids Modeling 3.2 Now Yen 4,992,000 Yen 2,496,000 3400
QPOLYXX Polymer Dynamics 3.2 Now Yen 4,992,000 Yen 2,496,000 3400
QPROTXX Protein Modeling 3.2 Now Yen 4,992,000 Yen 2,496,000 3400
QSTARXX X-Ray Structure Analysis 3.2 Now Yen 4,992,000 Yen 2,496,000 3400
NOTE: If QUANTA is purchased, at least one copy of networked CHARMm
must be available for use.
--------------------------------------
PRICE PER SERVICE UNIT (SU)
--------------------------------------
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇ 220 Yen 265
Academic Yen 35 Yen 105
--------------------------------------
Proprietary and Confidential Polygen/Molecular Simulations Japan Price List
January 30, 1992
System Software Professional/Power
________________________________________________________________________________
PART NUMBER DESCRIPTION REVISION AVAILABILITY COMMERCIAL ACADEMIC ▇▇▇. SU
_______________________________________________________________________________________________________________
XGBHXX BIOGRAF (SGI/IBM) 2.2 Now Yen10,500,000 Yen5,250,000 8640
XGNMHXX NMRgraf (SGI/IBM) 2.2 Now Yen 8,750,000 Yen4,375,000 7200
POLHXX Polaris (Stardent/SGI) 3.0 Now Yen 6,125,000 Yen3,062,500 5040
XGPGHXX POLYGRAF (SGI/IBM) 2.2 Now Yen15,750,000 Yen7,875,000 2960
QNTXX QUANTA (SGI/IBM) 3.2 Now Yen 6,240,000 Yen3,120,000 6000
QINORGXX Inorganic Solids Modeling 3.2 Now Yen 4,992,000 Yen2,496,000 3400
QPOLYXX Polymer Dynamics 3.2 Now Yen 4,992,000 Yen2,496,000 3400
QPROTXX Protein Modeling 3.2 Now Yen 4,992,000 Yen2,496,000 3400
QSTARXX X-Ray Structure Analysis 3.2 Now Yen 4,992,000 Yen2,496,000 3400
Note: If QUANTA is purchased, at least one copy of networked CHARMm must be available for use.
QUANTA Options SGI/IBM
_______________________________________________________________________________________________________________
PART NUMBER DESCRIPTION REVISION AVAILABILITY COMMERCIAL ACADEMIC ▇▇▇. SU
_______________________________________________________________________________________________________________
QBDSXX Brownian Dynamics Sim 3.2 Now Yen 2,500,000 Yen1,250,000 1705
Note: Purchase of Brownian Dynamics requires purchase of UHBD.
QCRYSTXX Crystal Modeling 3.2 Now Yen 2,125,000 Yen1,062,500 1450
QHELIXXX Helix Modeling 3.2 Now Yen 2,125,000 Yen1,062,500 1450
▇▇▇▇▇▇ ▇▇▇ Interface 3.2 Now Yen 1,250,000 Yen 625,000 850
QPBEXX Poisson-Boltzmann Electro 3.2 Now Yen 2,125,000 Yen1,062,500 1450
Note: Purchase of Poisson-Boltmann Electrostatics requires purchase of UHBD.
QOPINTXX QUANTA Open Interface 3.2 Now Yen 5,000,000 Yen2,500,000 3410
QQMIXX Quantum Mechanics Interface 3.2 Now Yen 2,500,000 Yen1,250,000 1705
QNMRSXX NMR Structure 3.2 Dec, 1991 Yen 4,992,000 Yen2,496,000 ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ Software SGI/IBM
_______________________________________________________________________________________________________________
PART NUMBER DESCRIPTION REVISION AVAILABILITY COMMERCIAL ACADEMIC ▇▇▇. SU
_______________________________________________________________________________________________________________
QMADXX MADNMR x Now Yen 3,750,000 Yen1,825,000 2555
QMADPXX MADNMR+ x Now Yen 6,250,000 Yen3,125,000 4260
QDISNOEXX DISCON/NOESYSIM x Now Yen 2,500,000 Yen1,250,000 1705
__________________________________
PRICE PER SERVICE UNIT(SU)
__________________________________
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇ 220 Yen 265
Academic Yen 35 Yen 105
__________________________________
Polygen/Molecular Simulations Japan Price List
January 30, 1992 Proprietary and Confidential
CERIUS SOFTWARE SGI/IBM
-------------------------------------------------------------------------------
Part Number Description Revision Availability Commercial Academic ▇▇▇.▇▇
--------------- ------------------------------ -------- ------------ ------------ ------------ ------
BUILDER MODULES
CSVSXX Visualizer (required for all) 2.3 Now Yen 437,500 Yen 218,750 400
CSCRXX Crystals 2.3 Now Yen1,312,500 Yen 656,250 1200
CSCLRXX Surfaces 2.3 Mar., 1992 Yen 437,500 Yen 218,750 400
CSINTXX Interfaces 3.0 Mar., 1992 Yen 437,500 Yen 218,750 400
CSPLXX Polymers 2.3 Now Yen 437,500 Yen 218,750 400
CALCULATION MODULES
CSOF1XX Open Force Field MM/MD(1) 3.0 Mar., 1992 Yen6,562,500 Yen3,281,500 6000
CSOF2XX Open Force Field MM/MD(2) 3.0 Mar., 1992 ▇▇▇ ▇▇▇ TBD
CSSRPXX Sorption 2.3 Now Yen2,187,500 Yen1,093,750 2000
CSPCKXX ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 2.3 Now Yen1,312,500 Yen 656,250 1200
CSMPXX MopacU1 2.3 Now Yen 875,000 Yen 437,500 800
CSSMXX Statmech 2.3 Now Yen2,625,000 Yen1,312,500 2400
CSDLSXX DLS-UI 2.3 Now Yen1,093,750 Yen 546,875 1000
CSDF1XX Diffraction I 2.3 Now Yen2,625,000 Yen1,312,500 2400
CSDF2XX Diffraction II 2.3 Now Yen1,750,000 Yen 875,000 1600
CSDF3XX Diffraction III 2.3 Now Yen1,093,750 Yen 546,875 1000
CSDF4XX Diffraction IV 2.3 Now Yen2,625,000 Yen1,312,500 2400
CSRTVXX Rietveld 3.0 Mar., 1992 Yen1,750,000 Yen 875,000 1600
CSHRXX HRTEM 2.3 Now Yen2,625,000 Yen1,312,500 2400
NOTE: PRICES INCLUDE FIRST YEAR MAINTENANCE
NOTE: DLS-UI, Sorption, Diffraction I, Diffraction III, HRTEM,
Surfaces, Interfaces, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and ▇▇▇▇▇▇▇▇ require CERIUS
Crystals.
NOTE: StatMech requires CERIUS Polymers.
NOTE: When quoting Open Force Field MM/MD, all Builder Modules should
be included in the quote.
NOTE: Open Force Field MM/MD) (1) is for Desktop and Personal/Entry
machines only. Open Force Field MM/MD (2) is for Professional and Power
machine only.
AVS CHEMISTRYVIEWER
-------------------------------------------------------------------------------
Part Number Description Revision Availability Commercial Academic ▇▇▇.▇▇
--------------- ------------------------------ -------- ------------ ------------ ------------ ------
Chemistry Viewer alone Yen1,312,500 Yen 656,250 720
Chemistry Viewer with AVS Yen1,750,000 Yen 875,000 1440
NOTE: First year maintenance is required with AVS and Chemistry Viewer
------------------------------
Price per Service Unit (SU)
------------------------------
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Academic Yen 35 Yen105
------------------------------
Proprietary Polygen/Molecular Simulations Japan Price List January 30, 1992
and
Confidential
CHARMm ALL PLATFORMS
----------------------------------------------------------------------------------------------------------------------
PART NUMBER DESCRIPTION REVISION AVAILABILITY COMMERCIAL ACADEMIC ▇▇▇. SU
----------------------------------------------------------------------------------------------------------------------
CDESKXX Desktop CHARMm 21.3 Now Yen 3,750,000* Yen 1,875,000* 2550
CPERSXX Personal CHARMm 21.3 Now Yen 5,990.000* Yen 2,995.000* 4085
CPROFXX Professional CHARMm 21.3 Now Yen10,500.000* Yen 5,250.000* 7160
CPARLXX Power CHARMm 21.3 Now Yen18,000.000* Yen 9,000.000* 12270
NOTE: At least one copy of networked CHARMm must be available for use.
Above prices (*) effective only at time of purchase with QUANTA
and include standard discounts. For individual CHARMm pricing,
see pricing below.
NOTE: Desktop CHARMm is only available for the SGI Indigo.
CPERSXX Personal Stand-alone CHARMm 21.3 Now Yen11,980,000 Yen 5,990,000 8165
CPROFXX Professional Stand-alone CHARMm 21.3 Now Yen15,000.000 Yen 7,500.000 10225
CPARLXX Power Batch stand-alone CHARMm 21.3 Now Yen22,500.000 Yen11,250.000 15340
CSUPRXX Super stand-alone CHARMm 21.3 Now Yen55,000.000 Yen27,500.000 37500
CSUPRLXX Ltd. License Super CHARMm 21.3 Now Yen33,000.000 Yen16,500.000 22500
CSRCXX CHARMm Source Code 21.3 Now Yen12,500.000 Yen 6,250.000 8520
NOTE: CHARMm source code may only be purchased in addition to a
standard CHARMm object license.
X-PLOR ALL PLATFORMS
----------------------------------------------------------------------------------------------------------------------
PART NUMBER DESCRIPTION REVISION AVAILABILITY COMMERCIAL ACADEMIC ▇▇▇. SU
----------------------------------------------------------------------------------------------------------------------
XPERSXX Personal X-PLOR 2.11 Now Yen 7,488,000 Yen 3,744,000 5105
XPROFXX Professional X-PLOR 2.11 Now Yen11,000.000 Yen 5,500.000 7500
XPARLXX Power X-PLOR 2.11 Now Yen16,000.000 Yen 8,000.000 10900
XSUPRXX Super X-PLOR 2.11 Now Yen33,500,000 Yen16,750,000 22840
XSUPRLXX Ltd. License Super X-PLOR 2.11 Now Yen19,500.000 Yen 9,750.000 13295
XSRCXX X-PLOR Source Code 2.11 Now Yen12,500.000 Yen 6,250.000 8250
NOTE: X-PLOR source code may only be purchased in addition to a
standard X-PLOR object license.
UHBD ALL PLATFORMS
----------------------------------------------------------------------------------------------------------------------
PART NUMBER DESCRIPTION REVISION AVAILABILITY COMMERCIAL ACADEMIC ▇▇▇. SU
----------------------------------------------------------------------------------------------------------------------
UPERSXX Personal UHBD 2.2 Now Yen10,000,000 Yen 5,000,000 6820
UPROFXX Professional UHBD 2.2 Now Yen11,250.000 Yen 5,625.000 7670
UPARLXX Power UHBD 2.2 Now Yen12,500.000 Yen 6,250.000 8250
▇▇▇▇ Batch ALL PLATFORMS
----------------------------------------------------------------------------------------------------------------------
PART NUMBER DESCRIPTION REVISION AVAILABILITY COMMERCIAL ACADEMIC ▇▇▇. SU
----------------------------------------------------------------------------------------------------------------------
GRAFBXX Alliant version Now Yen10,500,000 Yen 5,250,000 8640
GRAFBXX DEC version Now Yen 8,750.000 Yen 4,375.000 7200
GRAFBXX Convex version Now Yen14,000.000 Yen 7,000.000 11520
GRAFBXX Cray version Now Yen17,500.000 Yen 8,750.000 14400
Polygen/Molecular Simulations Japan Price List
January 30, 1992
Proprietary and Confidential
POLYGEN/MOLECULAR SIMULATIONS
MOLECULAR MODELING PRODUCTS PRICE LIST
HARDWARE CONFIGURATION SUMMARY
EFFECTIVE OCTOBER 01, 1991
----------------------------------------------------------
SILICON GRAPHICS IRIS 4D SERIES
-----------------------------------------------------------------------------------------------------------------------------------
MACHINE CATEGORY MFLOPS MIPS MEMORY DISK(1) TAPE O/S OTHER
-----------------------------------------------------------------------------------------------------------------------------------
Indigo Desktop xx xx 16 432/54 1/4" cartridge 4.0.0 Note 2
4D/25 G/TG Personal/Entry xx xx 16 380/54 1/4" cartridge 3.3.3 Note 2
4D/35 G/TG Personal/Entry xx xx 16 380/54 1/4" cartridge 3.3.3 Note 2
4D/310 GTX/VGX Professional/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/320 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/340 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/380 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/420 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/440 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/480 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
----------------------------------------------------------
IBM RISC SYSTEM/6000 SERIES
-----------------------------------------------------------------------------------------------------------------------------------
MACHINE CATEGORY MFLOPS MIPS MEMORY DISK(1) TAPE O/S OTHER
-----------------------------------------------------------------------------------------------------------------------------------
Series 320 Personal/Entry xx xx 16 320/54 1/4" cartridge 3.1.5 Notes 2.3
Series 520 Professional/Entry xx xx 16 320/54 1/4" cartridge 3.1.5 Notes 2.3
Series 530 Personal/Entry xx xx 16 320/54 1/4" cartridge 3.1.5 Notes 2.3
Series 540 Power/High-End xx xx 16 320/54 1/4" cartridge 3.1.5 Notes 2.3
Series 550 Power/High-End xx xx 16 320/54 1/4" cartridge 3.1.5 Notes 2.3
----------------------------------------------------------
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ ESV SERIES
-----------------------------------------------------------------------------------------------------------------------------------
MACHINE CATEGORY MFLOPS MIPS MEMORY DISK(1) TAPE O/S OTHER
-----------------------------------------------------------------------------------------------------------------------------------
ESV-5 Entry 4.0 xx xx/xx xx xx
All others High-End 4.0 xx xx/xx xx xx
Proprietary and Confidential Polygen/Molecular Simulations Japan Price List
January 30, 1992
--------------------------------------------------------------------------------
BATCH PROCESSORS
--------------------------------------------------------------------------------
Machine Category MFLOPS MIPS Memory Disk(1) Tape O/S Other
-------------------------------------------------------------------------------------------------------------
Alliant FX40,80 Power/Batch xx xx xx xx mm cartridge 2.1.02
Alliant FX2800 Power/Batch xx xx xx xx mm cartridge 2.1.02
Convex C-1 Power/Batch xx xx xx xx Reel-to-reel xx Note 4
Convex C-2 Power/Batch xx xx xx xx Reel-to-reel xx
Cray X,Y-MP Super/Batch xx xx xx xx Reel-to-reel 6.0
Cray 2 Super/Batch xx xx xx xx Reel-to-reel 6.0
DEC Batch xx xx xx xx Reel-to-reel xx Note 4
IBM 3090 MVS Super xx xx xx xx Reel-to-reel xx Note 5
IBM 3090 VM. Super xx xx xx xx Reel-to-reel xx Note 5
IBM 3090 AIX Super xx xx xx xx Reel-to-reel xx Note 5
-------------------------------------------------------------------------------
HARDWARE NOTES
-------------------------------------------------------------------------------
1. Under the Disk column, the first number is the minimum total disk space
required while the second number is the minimum swap space required.
2. FORTRAN is required for the QUANTA Open Interface.
3. The following IBM RS/6000 hardware configuration is required for
QUANTA/CHARMm software: 24-bit 3D graphics, 24-bit Z-buffer, Ethernet
LAN adaptor, and the FORTRAN 2.01 run-time libraries (xlfrte 02.01).
4. CHARMm, X-PLOR, and UHBD are not supported on the Convex C-1.
5. ▇▇▇▇ Batch is not supported on the IBM 3090.
------------------------------------------------------------------------------
PART NUMBERS
-------------------------------------------------------------------------------
Replace XX in all software part numbers with the following machine codes:
--------------------------------------------------------------------------------------------------------------
4D All SGI 4D series except Indigo DT SGI Indigo ST Stardent Titan
ES E&S ESV RS All IBM RS/6000 series
FX Alliant C1 Convex C-1 C2 Convex C-2
CX Cray X-MP ▇▇ ▇▇▇▇ Y-MP ▇▇ ▇▇▇▇ 2
MV IBM 3090 MVS VM IBM 3090 VM/CMS AX IBM 3090 AIX
VS DEC VMS
January 30, 1992 Polygen/Molecular Simulations Japan Price List
Proprietary and Confidential
CONTINUING LICENSE/MAINTENANCE
Part Number Description Academic Price/S.U. Commercial Price/S.U.
---------------------------------------------------------------------------------------------
SL1SS ▇▇▇▇▇ ▇ (▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇) ▇▇▇▇▇ ▇▇▇▇▇▇
Provides the following services:
Continuing license fee
Upgrade of existing software
Hotline support of products: Calls returned within 4 hours of receipt
SL2SS ▇▇▇▇▇ ▇ (▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇) . ▇▇▇▇▇▇ Yen265
Provides the following services:
Continuing license fee
Upgrade of existing software
Hotline support of products: Calls returned within 1 hour of receipt
Monthly status calls from senior scientific staff members
Monthly report of software problems
Scientific support for modeling problems
SCIENTIFIC PROGRAMS
Part Number Description Cost/Time Period
----------------------------------------------------------------
SSCON Scientific Consulting Yen175,000 per day
SPMDL Molecular Design Lab Yen700,000 per week
Seat in Introductory Molecular Modeling Course
Use of software on a dedicated machine
Access to Polygen and Harvard scientists
NOTE: A minimum of two weeks is required.
TRAINING PROGRAMS
Part Number Description Cost/Time Period
------------------------------------------------------------------------
Introductory Molecular Modeling Yen175,000/3 days
Advanced CHARMm Yen262,500/2 days
Advanced Protein Modeling Yen262,500/2 days
Advanced Polymer Modeling Yen262,500/2 days
Polygen/Molecular Simulations Japan Price List
Proprietary and Confidential January 30, 1992
POLYGEN/MOLECULAR SIMULATIONS
MOLECULAR MODELING SOFTWARE PRODUCTS
POLICIES AND PROCEDURES
EFFECTIVE JANUARY 01, 1992
TITLE
All right, title and interest in and to the software licensed and any related
documentation and any copies thereof which may be made by licensee are and shall
remain the exclusive property of licensor or licensor's licensor, as to software
sublicensed by licensor to licensee; licensor and its licensors are collected
referred to as the software owners. Any third party software designated in the
applicable price list as subject to a separate license agreement is subject to
the terms of the agreement accompanying such software. Each software owner shall
have the right to enforce this agreement against licensee as to such software
owner's software.
SOFTWARE LICENSE FEES
Use of the software by licensee shall be subject to the licensee signing the
Polygen/Molecular Simulations Standard Software License Agreement.
UNBUNDLED FEE
In the instance where software is not purchased with hardware, the software list
price shall be increased by an additional amount equal to twenty percent (20%)
of such software list price (the unbundled fee).
PAYMENT TERMS
Unless otherwise arranged, Polygen/Molecular Simulations will invoice purchaser
at the time of shipment of each installment on payment terms of each on
delivery, except where open account credit is established and maintained to
Polygen/Molecular Simulations' satisfaction, in which case payment terms shall
be net 30 days from date of shipment. Purchaser shall make all payments as
provided without regard to whether purchaser has made or may make any inspection
or use of any goods delivered. Any invoiced amount which is not paid when due
shall bear interest at the rate of 2% per month or the highest rate then
permitted by law, whichever is less.
WARRANTY
The software as delivered and installed on the designated system will conform
substantially to licensor's then current published program specifications.
Licensee acknowledges, however, that the software is of such complexity that it
may have inherent or latent defects and agrees that as licensee's sole remedy
licensor will exercise its best efforts to correct documented program errors
which licensors's analysis indicates are caused by a defect in the unaltered
version of the delivered software as installed on an unaltered designated
system. Licensor does not guarantee the results of any such services or
represent or warrant that any such error will be corrected. The foregoing
warranty extends only to licensee and is not applicable to any transferee of the
software license.
LICENSE TRANSFER POLICY
All computers and software are expected to be written off over four years.
Customers will be able to transfer their current software license to a faster
computer (at the same site) and receive a credit equal to 25% of the lower of
the price actually paid or the current price for the license for each year left
in the four years since shipment to the customer by Polygen/Molecular
Simulations. To receive this credit, the customer must be current on
maintenance.
TERMS AND CONDITIONS
Software orders must be accompanied by the software quotation with standard
quote terms and conditions and a standard software license agreement. Loaners
must be accompanied by a standard software loaner agreement. Any software
purchase or loaner which does include the above documents or which documents
deviate from standard terms must be approved in advance.
QUOTE VALIDITY
Software quotes are valid for 30 days only.
SOFTWARE LOANER PERIOD
Unless otherwise arranged; software to commercial organizations may only be
loaned for a period of 15 days: software to academic institutions may only be
loaned for a period of 30 days.
APPENDIX B
POLYGEN (PMSI) STANDARD SOFTWARE LICENSE AGREEMENT
This Software License Agreement (the "Agreement") is made and entered
into as of _________________, 19__ by and between Polygen Corporation having a
principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("LICENSOR")
and ______________________________________________ having a principal place of
business at _____________________________________________ ("LICENSEE").
1. DEFINITIONS.
A. "Software" shall mean each computer program, in machine readable
form, furnished by LICENSOR to LICENSEE hereunder, including related supporting
materials and all updates thereto, if any.
B. "Designated System" shall mean the computer hardware identified by
the serial number(s) and located at the address set forth below.
2. GRANT OF LICENSE.
Subject to the terms and conditions of this Agreement, LICENSOR hereby
grants to LICENSEE a non-exclusive, non-transferable license to use the Software
to operate and run solely on a Designated System for the term of this Agreement.
3. REPRODUCTION.
LICENSEE may make no more than three (3) copies of each Software
program for LICENSEE's own use on the Designated System for back-up purposes
only. Except as provided in this paragraph 3, LICENSEE shall make no additional
copies of, nor allow others to copy any of the Software without LICENSOR's prior
written consent. LICENSE shall duplicate the copyright notice and any
proprietary rights legend on all Software copies hereunder.
4. TITLE.
All right, title and interest in and to the Software licensed hereunder
and any related documentation, and any copies thereof which may be made by
LICENSEE are and shall remain the exclusive property of LICENSOR or LICENSOR's
licensor, as to Software sublicensed by LICENSOR to LICENSEE hereunder (LICENSOR
and its licensors are collectively referred to as the "Software Owners"). Any
third party Software designated in the applicable
1.
price list as subject to a separate license agreement is subject to the terms of
the agreement accompanying such Software. Each Software Owner shall have the
right to enforce this Agreement against Licensee as to such Software Owner's
Software.
5. PROTECTION OF LICENSED SOFTWARE.
The Software is acknowledged by LICENSEE to include confidential and
proprietary information and trade secrets of the Software Owners in which
LICENSEE has no rights other than as granted by this Agreement. LICENSEE
acknowledges that unauthorized copying or disclosure of the Software will cause
irreparable injury to the Software Owners and that the Software Owners shall be
entitled to, among other things, enjoin such activities. LICENSEE agrees not to
provide or otherwise make available any Software in any form without LICENSOR's
prior written consent. LICENSEE agrees that the Software is being licensed
hereunder for LICENSEE's internal use and that LICENSEE may not make the
Software available to third parties in connection with any form of time-sharing
service. LICENSEE agrees not to create source code for the Software nor to
translate the Software into any other computer or natural language, nor to
attempt to do so or provide assistance to others to do so. LICENSEE further
agrees to take appropriate action to satisfy its obligations hereunder with
respect to use, copying , modification and protection of the Software by
suitable instructions to its employees or other persons who are permitted access
to the Software, or to any documentation describing or disclosing the same.
LICENSEE shall have no liability under this paragraph 5 for disclosure
of information supplied by LICENSOR if and to the extent that: (a) LICENSEE
establishes that the information was already known to LICENSEE, without
obligation to keep it confidential, at the time of its receipt from LICENSOR, as
disclosure, (b) LICENSEE establishes that the information was received by
LICENSEE in good faith from a third party lawfully in possession thereof and
having no obligation to keep such information confidential, or (c) LICENSEE
establishes that the information was publicly known at the time of its receipt
by LICENSEE from LICENSOR or has become publicly known other than by a breach of
the Agreement or other action by LICENSEE.
6. SOFTWARE INSTALLATION/ACCEPTANCE.
Unless otherwise agreed in writing, Software installation shall take
place following execution of this Agreement upon Designated System(s) which
LICENSEE has notified LICENSOR in writing are operational and available for
installation during normal working hours on normal working days, excepting
LICENSEE or LICENSOR-observed holidays. LICENSEE shall pay to LICENSOR an
installation fee in the amount indicated in the Quotation of
2.
which this Agreement forms a part. LICENSEE shall allow LICENSOR full access to
the installation site during Software installation and shall provide reasonable
working facilities and scratch media as required in order to effect
installation, all without charge. LICENSOR installation personnel shall subject
the Software as installed on a Designated System to LICENSOR's then current
standard published software acceptance test procedure, and LICENSEE agrees to
provide written confirmation of successful completion of such test procedure on
demand. LICENSEE's use of the Software for any purpose other than testing or
training purposes shall be deemed to constitute acceptance.
7. SOFTWARE LICENSE FEES.
Use of the Software by LICENSEE shall be subject to the payment of
Initial and Quarterly License Fees for each Software product on each Designated
System in the amounts specified on the Quotation of which this Agreement forms a
part. Initial License Fees shall be due and payable as of the date on which
LICENSEE accepts or is deemed to accept the Software ("Acceptance Date"), and
Quarterly License fees shall be due and payable commencing on the first day of
the month which is the same as or first follows the Acceptance Date, inclusive
of a pro rata amount for the period between the Acceptance Date and the first
payment date, and on the first day of every third month thereafter. All license
fees shall be due and payable in United States Dollars.
Quarterly License Fee rates shall remain in effect for four (4)
consecutive quarters. Subject to the foregoing, LICENSOR shall have the right to
increase such rates prospectively on an annual basis in a uniform manner with
respect to all LICENSEEs upon three (3) months advance written notice to take
effect with the quarter which first commences following the expiration of such
notice period.
8. TERM AND TERMINATION.
A. This Agreement is effective from the date first written above
("Commencement Date") until termination as provided herein. Upon termination,
LICENSEE shall cease all use of the Software and shall return to LICENSOR the
original(s) and any and all copies of the Software made or furnished hereunder.
B. This Agreement may be terminated by LICENSEE by written notice to
LICENSOR given no later than sixty (60) days prior to any anniversary of the
Commencement Date, to take effect as of such anniversary date.
C. This Agreement may be terminated by LICENSOR sixty (60) days
following the giving of written notice to LICENSEE upon the occurrence of the
following:
3.
(a) Upon failure of LICENSEE to perform any of its existing or future
obligations hereunder if such breach shall continue for a period of fifteen (15)
days after receipt by LICENSEE of written notice from LICENSOR specifying such
breach;
(b) In the event (i) LICENSEE makes a general assignment for the
benefit of creditors, or transfers all or substantially all of its assets to a
receiver or a trustee in bankruptcy, (ii) a proceeding is commenced against
LICENSEE for relief under bankruptcy or similar laws and such proceeding is not
dismissed within thirty (30) days, or (iii) LICENSEE is adjudged insolvent or
bankrupt; or
(c) Upon any attempt by LICENSEE to assign this Agreement or any rights
or obligations hereunder without LICENSOR's prior written consent.
9. INDEMNITY.
LICENSOR will defend at its own expense any action against LICENSEE to
the extent it is based on a claim of direct infringement of a United States
patent, trademark or copyright by the LICENSOR Software licensed hereunder, and
pay those damages and costs finally awarded against LICENSEE in such action
which are attributable to such claim, provided LICENSEE notifies LICENSOR
promptly in writing of any such action and all prior related claims and gives
LICENSOR (at LICENSOR's expense) sole control of the defense of same and all
negotiations for its settlement or compromise. Should any such Software become,
or in LICENSOR's opinion be likely to become, the subject of a claim of
infringement, LICENSEE shall permit LICENSOR, at its option and expense, to
either: (a) procure for LICENSEE the right to continue using the Software, or
(b) replace or modify the Software to become noninfringing. Notwithstanding the
foregoing, LICENSOR shall have no liability for any claim of infringement based
upon (a) the operation or use of the Software in combination with any other
hardware or software not supplied by LICENSOR, or (b) LICENSEE's modification to
the Software if such claim could have been avoided by the absence of such
modification.
THE FOREGOING STATES THE ENTIRE LIABILITY OF LICENSOR WITH RESPECT TO
INFRINGEMENT OF ANY PROPERTY RIGHT OF A THIRD PARTY BY THE SOFTWARE OR ANY
PORTION THEREOF ALONE OR IN COMBINATION WITH ANY OTHER PRODUCT.
10. WARRANTY.
For each item of Software, LICENSOR warrants for thirty (30) days from
the date such Program is installed at LICENSEE's facilities (the "Installation
Date"), that such Software, unless modified by LICENSEE, will perform the
functions described in the
4.
documentation provided by LICENSOR to LICENSEE when properly operated on the
Designated System and LICENSOR will undertake to correct any reported,
reproducible and repeatable error condition in accordance with LICENSOR's
then-prevailing Software Support Policies. LICENSOR does not warrant that the
operation of the Software will be uninterrupted or error-free, that all Program
errors will be corrected, that the Software will satisfy LICENSEE's
requirements, or that the Software will operate in the combinations which
LICENSEE may select for use. For any breach of the above warranties, LICENSEE's
exclusive remedy, and LICENSOR's entire liability, shall be the exercise of best
efforts by LICENSOR to correct (including suitable workarounds) the Software
errors.
11. LIMITATION OF LIABILITY.
EXCEPT FOR THE EXPRESS WARRANTY IN PARAGRAPH 10 ABOVE, LICENSOR GRANTS
NO WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH REGARD TO THE SOFTWARE, EXCLUDING
HEREBY ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. THE STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR
OBLIGATIONS OF LICENSOR FOR DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE
DELIVERY, USE OR PERFORMANCE OF THE SOFTWARE.
LICENSEE agrees that LICENSOR's liability hereunder for damages,
including but not limited to liability for infringement, shall not exceed the
charges paid by LICENSEE for the particular Software involved. LICENSEE further
agrees that LICENSOR will not be liable for any lost profit, or for any claim or
demand against LICENSEE by any other party, except a claim for patent, trademark
or copyright infringement as provided herein.
IN NO EVENT WILL LICENSOR BE LIABLE FOR CONSEQUENTIAL DAMAGES EVEN IF
LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. ASSIGNMENT.
This Agreement, including all rights and obligations hereunder, is not
assignable without the prior written consent of LICENSOR. Notwithstanding the
foregoing, upon any sale of the Designated System by LICENSEE to a third party,
LICENSEE shall require such party to enter into a License Agreement with
LICENSOR on LICENSOR's then current standard terms.
13. TAXES.
All license fees and amounts payable to LICENSOR under the terms of
this Agreement and the Quotation of which it forms a part are not of and shall
not be reduced by any tax, including, but not by way of limitation, any use,
sales, property, import, duty, export, withholding, gross receipts, or
value-added tax or
5.
other tax or charge of similar nature imposed by any governmental authority upon
or with respect to LICENSOR or LICENSEE, this license, or the license fees
payable hereunder, excepting only a tax on LICENSOR's net business income.
LICENSEE agrees to indemnify and hold LICENSOR harmless from any such taxes and
to pay the same promptly on presentation of LICENSOR's invoice for the same.
14. GENERAL.
The provisions of the Agreement shall control over the terms of any
present or future agreement except to the extent such agreement expressly
provides otherwise.
This Agreement supersedes all prior agreements and understandings
between the parties related to the subject matter herein and is intended by the
parties as the complete and exclusive statement of the terms of this Agreement.
If any of the provisions of this Agreement are invalid under any applicable
statute or rule of law they are, to the extent they are invalid, deemed omitted,
and the remainder of this Agreement shall remain in full force and effect. This
Agreement is made in the Commonwealth of Massachusetts, and shall be construed,
and the legal relations between the parties hereto determined, in accordance
with the laws applicable to contracts made by Massachusetts residents in, and to
be performed in, Massachusetts. The parties hereto consent to personal
jurisdiction before and venue in any court of Boston, Massachusetts with respect
to any dispute arising under this Agreement. If either party fails to perform
any term of this Agreement and the other party does not enforce that term,
failure to enforce on that occasion shall not prevent enforcement on later
occasions.
15. MODIFICATION.
Any deviations from or additions to the terms of this Agreement must be
in writing and will not be valid unless confirmed in writing by duly authorized
officers of LICENSOR and LICENSEE.
16. NOTICES.
All notices, requests, and demands given to or made upon LICENSOR or
LICENSEE hereunder shall be in writing and delivered or mailed to the address
first indicated above, or to such other
6.
address as LICENSOR or LICENSEE shall designate in writing from time to time.
POLYGEN CORPORATION ("LICENSOR")
By:_____________________________
Name: __________________________
_________________________
LICENSEE
By:_____________________________
Name:___________________________
___________________________
7.
SERIAL NUMBERS AND LOCATION OF DESIGNATED SYSTEM(S)
Software________________________________ Software_________________________
System Type___________________0/S_______ System Type_____________0/S______
Serial No. _____________________________ Serial No. ______________________
________________________________________ _________________________________
________________________________________ _________________________________
Software________________________________ Software_________________________
System Type_______________ 0/S__________ System Type_________0/S__________
Serial No. _____________________________ Serial No. ______________________
________________________________________ _________________________________
________________________________________ _________________________________
8.
APPENDIX C
PRICE LIST
(attached)
28.
APPENDIX C: PRICE LIST
POLYGEN/MOLECULAR SIMULATIONS
MOLECULAR MODELING PRODUCTS PRICE LIST
PRICING SUMMARY
JAPAN END-USER BUNDLED PRICE LIST
EFFECTIVE JANUARY 01, 1992
--------------------------------------------------
PRICES ARE VALID ONLY WHEN PURCHASED WITH HARDWARE
--------------------------------------------------
PRICES INCLUDE SOFTWARE AND DOCUMENTATION, BUT DO NOT INCLUDE
HARDWARE, INSTALLATION, TRAINING, OR CONTINUING LICENSE FEES.
-------------------------------------------------------------
SYSTEM SOFTWARE Desktop
------------------------------------------------------------------------------------------------------------------------
Part Number Description Revision Availability Commercial Academic ▇▇▇.▇▇
------------------------------------------------------------------------------------------------------------------------
XGBEXX BIOGRAF (Indigo) 2.2 Now Yen5,250,000 Yen2,265,000 4320
XGNMEXX NMRgraf (INdigo) 2.2 Now Yen3,500,000 Yen1,750,000 2880
POLEXX Polaris (Indigo) 3.0 Now Yen2,625,000 Yen1,312,500 2160
XGPGEXX POLYGRAF (Indigo) 2.2 Now Yen7,000,000 Yen3,500,000 5760
QNTXX QUANTA (Indigo) 3.2 Now Yen3,750,000 Yen1,875,000 3600
QINORGXX Inorganic Solids Modeling 3.2 Now Yen3,750,000 Yen1,875,000 2550
QPOLYXX Polymer Dynamics 3.2 Now Yen3,750,000 Yen1,875,000 2550
QPROTXX Protein Modeling 3.2 Now Yen3,750,000 Yen1,875,000 2550
QSTARXX X-Ray Structure Analysis 3.2 Now Yen3,750,000 Yen1,875,000 2550
NOTE: IF QUANTA is purchased, at least one copy of
networked CHARMm must be available for use.
-------------------------------------------------------------
SYSTEM SOFTWARE Personal
-------------------------------------------------------------===========================================================
Part Number Description Revision Availability Commercial Academic ▇▇▇.▇▇
------------------------------------------------------------------------------------------------------------------------
XGBEXX BIOGRAF (SGI/IBM) 2.2 Now Yen7,000,000 Yen3,500,000 5760
XGNMEXX NMRgraf (SGI/IBM) 2.2 Now Yen5,250,000 Yen2,625,000 4320
POLEXX Polaris (SGI) 3.0 Now Yen4,375,000 Yen2,187,500 3600
XGPGEXX POLYGRAF (SGI/IBM) 2.2 Now Yen10,500,000 Yen5,250,000 8640
QNTXX QUANTA (SGI/IBM) 3.2 Now Yen6,240,000 Yen3,120,000 6000
QINORGXX Inorganic Solids Modeling 3.2 Now Yen4,992,000 Yen2,496,000 3400
QPOLYXX Polymer Dynamics 3.2 Now Yen4,992,000 Yen2,496,000 3400
QPROTXX Protein Modeling 3.2 Now Yen4,992,000 Yen2,496,000 3400
QSTARXX X-Ray Structure Analysis 3.2 Now Yen4,992,000 Yen2,496,000 3400
NOTE: IF QUANTA is purchased, at least one copy of
networked CHARMm must be available for use.
---------------------------------------------------------
Price per Service Unit (SU)
---------------------------------------------------------
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇
------- -------
Commercial Yen220 Yen265
Academic Yen 35 Yen105
---------------------------------------------------------
Polygen/Molecular Simulations Japan Price List
Proprietary and Confidential January 30, 1992
SYSTEM SOFTWARE PROFESSIONAL POWER
-------------------------------------------------------------------------------
PART NUMBER DESCRIPTION REVISION AVAILABILITY COMMERCIAL ACADEMIC ▇▇▇.▇▇
----------------------------------------------------------------------------------------------------------------------
XGBHXX BIOGRAF (SGI/IBM) 2.2 Now Yen10,500,000 Yen5,250,000 8640
XGNMHXX NMRgraf(SGI/IBM) 2.2 Now Yen 8,750,000 Yen4,375,000 7200
POLHXX Polaris(Stardent/SGI) 3.0 Now Yen 6,125,000 Yen3,062,500 5040
XGPGHXX POLYGRAF (SGI/IBM) 2.2 Now Yen15,750,000 Yen7,875,000 12960
QNTXX QUANTA (SGI/IBM) 3.2 Now Yen 6,240,000 Yen3,120,000 6000
QINORGXX Inorganic Solids Modeling 3.2 Now Yen 4,992,000 Yen2,496,000 3400
QPOLYXX Polymer Dynamics 3.2 Now Yen 4,992,000 Yen2,496,000 3400
QPROTXX Protein Modeling 3.2 Now Yen 4,992,000 Yen2,496,000 3400
QSTARXX X-Ray Structure Analysis 3.2 Now Yen 4,992,000 Yen2,496,000 3400
Note: If QUANTA is purchased, at least one copy of networked CHARMm must be available for use.
QUANTA OPTIONS SGI/IBM
-------------------------------------------------------------------------------
PART NUMBER DESCRIPTION REVISION AVAILABILITY COMMERCIAL ACADEMIC ▇▇▇.▇▇
----------------------------------------------------------------------------------------------------------------------
QBDSXX Brownian Dynamics Sim 3.2 Now Yen2,500,000 Yen1,250,000 1705
Note: Purchase of Brownian Dynamics requires purchase of UHBD
QCRYSTXX Crystal Modeling 3.2 Now Yen2,125,000 Yen1,062,500 1450
QHELIXXX Helix Modeling 3.2 Now Yen2,125,000 Yen1,062,500 1450
▇▇▇▇▇▇ ▇▇▇ Interface 3.2 Now Yen1,250,000 Yen 625,000 850
QPBEXX Poisson-Bolzmann Electro 3.2 Now Yen2,125,000 Yen1,062,500 1450
Note: Purchase of Poisson-Boltmann Electrostatics requires purchase of UHBD
QOPINTXX QUANTA Open Interface 3.2 Now Yen5,000,000 Yen2,500,000 3410
QQMIXX Quantum Mechanics Interface 3.2 Now Yen2,500,000 Yen1,250,000 1705
QNMRSXX NMR Structure 3.2 Dec, 1991 Yen4,992,000 Yen2,496,000 ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ SOFTWARE SGI/IBM
-------------------------------------------------------------------------------
PART NUMBER DESCRIPTION REVISION AVAILABILITY COMMERCIAL ACADEMIC ▇▇▇.▇▇
----------------------------------------------------------------------------------------------------------------------
QMADXX MADNMR x Now Yen3,750,000 Yen1,825,000 2555
QMADPXX MADNMR+ x Now Yen6,250,000 Yen3,125,000 4260
QDISNOEXX DISCON/NOESYSIM x Now Yen2,500,000 Yen1,250,000 1705
----------------------------------------------------------
PRICE PER SERVICE UNIT (SU)
----------------------------------------------------------
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Academic Yen 35 Yen105
----------------------------------------------------------
CERIUS SOFTWARE SGI/IBM
Part Number Description Revision Availability Commercial Academic ▇▇▇. SU
-----------------------------------------------------------------------------------------------------------------------
Builder Modules
CSVSXX Visualizer (required for all) 2.3 Now Yen 437,500 Yen 218,750 400
CSCRXX Crystals 2.3 Now Yen 1,312,500 Yen 656,250 1200
CSCLRXX Surfaces 2.3 Mar., 1992 Yen 437,500 Yen 218,750 400
CSINTXX Interfaces 3.0 Mar., 1992 Yen 437,500 Yen 218,750 400
CSPLXX Polymers 2.3 Now Yen 437,500 Yen 218,750 400
Calculation Modules
CSOF1XX Open Force Field MM/MD (1) 3.0 Mar., 1992 Yen 6,562,500 Yen3,281,500 6000
CSOF2XX Open Force Field MM/MD (2) 3.0 Mar., 1992 ▇▇▇ ▇▇▇ TBD
CSSRPXX Sorption 2.3 Now Yen 2,187,500 Yen1,093,750 2000
CSPCKXX ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 2.3 Now Yen 1,312,500 Yen 656,250 1200
CSMPXX MopacUI 2.3 Now Yen 875,000 Yen 437,500 .800
CSSMXX Statmech 2.3 Now Yen 2,625,000 Yen1,312,500 2400
CSDLSXX DLS-UI 2.3 Now Yen 1,093,750 Yen 546,875 1000
CSDF1XX Diffraction I 2.3 Now Yen 2,625,000 Yen1,312,500 2400
CSDF2XX Diffraction II 2.3 Now Yen 1,750,000 Yen 875,000 1600
CSDF3XX Diffraction III 2.3 Now Yen 1,093,750 Yen 546,875 1000
CSDF4XX Diffraction IV 2.3 Now Yen 2,625,000 Yen1,312,500 2400
CSRTVXX Rietveld 3.0 Mar., 1992 Yen 1,750,000 Yen 875,000 1600
CSHRXX HRTEM 2.3 Now Yen 2,625,000 Yen1,312,500 2400
NOTE: PRICES INCLUDE FIRST YEAR MAINTENANCE
NOTE: DLS-UI, Sorption, Diffraction I, Diffraction III, HRTEM, Surfaces,
Interfaces, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and ▇▇▇▇▇▇▇▇ require CERIUS Crystals.
NOTE: StatMech requires CERIUS Polymers.
NOTE: When quoting Open Force Field MM/MD, all Builder Modules should be
included in the quote.
NOTE: Open Force Field MM/MD (1) is for Desktop and Personal/Entry
machines only. Open Force Field MM/MD (2) is for Professional and
Power machine only.
AVS CHEMISTRYVIEWER ALL PLATFORMS
Part Number Description Revision Availability Commercial Academic ▇▇▇. SU
---------------------------------------------------------------------------------------------------------------
ChemistryViewer alone Y1,312,500 Y656,250 720
ChemistryViewer with AVS Y1,750,000 Y875,000 1440
NOTE: First year maintenance is required with AVS and ChemistryViewer
---------------------------------------
PRICE PER SERVICE UNIT (SU)
---------------------------------------
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇ 220 Yen 265
Academic Yen 35 Yen 105
Proprietary and Confidential Polygen/Molecular Simulations Japan Price List
January 30, 1992
CHARMm ALL PLATFORMS
Part Number Description Revision Availability Commercial Academic ▇▇▇. SU
--------------------------------------------------------------------------------------------------------------------------
CDESKXX Desktop CHARMm 21.3 Now Yen 3,750,000* Yen 1,875,000* 2550
CPERSXX Personal CHARMm 21.3 Now Yen 5,990,000* Yen 2,995,000* 4085
CPROFXX Professional CHARMm 21.3 Now Yen10,500,000* Yen 5,250,000* 7160
CPARLXX Power CHARMm 21.3 Now Yen18,000,000* Yen 9,000,000* 12270
NOTE: At least one copy of networked CHARMm must be available for use. Above prices(*) effective
only at time of purchase with QUANTA and include standard discounts. For individual CHARMm
pricing, see pricing below.
NOTE: Desktop CHARMm is only available for the SGI Indigo.
CPERSXX Personal Stand-alone CHARMm 21.3 Now Yen11,980,000 Yen 5,990,000 8165
CPROFXX Professional Stand-alone CHARMm 21.3 Now Yen15,000,000 Yen 7,500,000 10225
CPARLXX Power Batch stand-alone CHARMm 21.3 Now Yen22,500,000 Yen11,250,000 15340
CSUPRXX Super Stand-alone CHARMm 21.3 Now Yen55,000,000 Yen27,500,000 37500
CSUPRLXX Ltd. License Super CHARMm 21.3 Now Yen33,000,000 Yen16,500,000 22500
CSRCXX CHARMm Source Code 21.3 Now Yen12,500,000 Yen 6,250,000 8520
NOTE: CHARMm source code may only be purchased in addition to a
standard CHARMm object license.
X-PLOR ALL PLATFORMS
Part Number Description Revision Availability Commercial Academic ▇▇▇. SU
--------------------------------------------------------------------------------------------------------------------------
XPERSXX Personal X-PLOR 2.11 Now Yen 7,488,000 Yen 3,744,000 5105
XPROFXX Professional X-PLOR 2.11 Now Yen11,000,000 Yen 5,500,000 7500
XPARLXX Power X-PLOR 2.11 Now Yen16,000,000 Yen 8,000,000 10900
XSUPRXX Super X-PLOR 2.11 Now Yen33,500,000 Yen16,750,000 22840
XSUPRLXX Ltd. License Super X-PLOR 2.11 Now Yen19,500,000 Yen 9,750,000 13295
XSRCXX X-PLOR Source Code 2.11 Now Yen12,500,000 Yen 6,250,000 8520
NOTE: X-PLOR source code may only be purchased in addition to a standard
X-PLOR object license.
UHBD ALL PLATFORMS
Part Number Description Revision Availability Commercial Academic ▇▇▇. SU
---------------------------------------------------------------------------------------------------------------------------
UPERSXX Personal UHBD 2.2 Now Yen10,000,000 Yen 5,000,000 6820
UPROFXX Professional UHBD 2.2 Now Yen11,250,000 Yen 5,625,000 7670
UPARLXX Power UHBD 2.2 Now Yen12,500,000 Yen 6,250,000 8520
▇▇▇▇ BATCH ALL PLATFORMS
Part Number Description Revision Availability Commercial Academic ▇▇▇. SU
-------------------------------------------------------------------------------------------------------------------------
GRAFBXX Alliant version Now Yen10,500,000 Yen 5,250,000 8640
GRAFBXX DEC version Now Yen 8,750,000 Yen 4,375,000 7200
GRAFBXX Convex version Now Yen14,000,000 Yen 7,000,000 11520
GRAFBXX Cray version Now Yen17,500,000 Yen 8,750,000 14400
January 30, 1992 Polygen/Molecular Simulations Japan Price List
Proprietary and Confidential
POLYGEN/MOLECULAR SIMULATIONS
MOLECULAR MODELING PRODUCTS PRICE LIST
HARDWARE CONFIGURATION SUMMARY
EFFECTIVE OCTOBER 01, 1991
SILICON GRAPHICS IRIS 4D SERIES
Machine Category MFLOPS MIPS Memory Disk(1) Tape O/S Other
---------------------------------------------------------------------------------------------------------------------
Indigo Desktop xx xx 16 432/54 1/4" cartridge 4.0.0 Note 2
4D/25 G/TG Personal/Entry xx xx 16 380/54 1/4" cartridge 3.3.3 Note 2
4D/35 G/TG Personal/Entry xx xx 16 380/54 1/4" cartridge 3.3.3 Note 2
4D/310 GTX/VGX Professional/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/320 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/340 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/380 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/420 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/440 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/480 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
IBM RISC SYSTEM/6000 SERIES
Machine Category MFLOPS MIPS Memory Disk(1) Tape O/S Other
------------------------------------------------------------------------------------------------------------------------
Series 320 Personal/Entry xx xx 16 320/54 1/4" cartridge 3.1.5 Notes 2.3
Series 520 Professional/Entry xx xx 16 320/54 1/4" cartridge 3.1.5 Notes 2.3
Series 530 Professional/Entry xx xx 16 320/54 1/4" cartridge 3.1.5 Notes 2.3
Series 540 Power/High-End xx xx 16 320/54 1/4" cartridge 3.1.5 Notes 2.3
Series 550 Power/High-End xx xx 16 320/54 1/4" cartridge 3.1.5 Notes 2.3
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ ESV SERIES
Machine Category MFLOPS MIPS Memory Disk(1) Tape O/S Other
------------------------------------------------------------------------------------------------------------------------
ESV-5 Entry 4.0 xx xx/xx xx xx
All others High-End 4.0 xx xx/xx xx xx
Polygen/Molecular Simulations Japan Price List
Proprietary and Confidential January 30, 1992
BATCH PROCESSORS
Machine Category MFLOPS MIPS Memory Disk(1) Tape O/S Other
---------------------------------------------------------------------------------------------------------------------
Alliant FX40,80 Power/Batch xx xx xx xx 8mm cartridge 2.1.02
Alliant FX2800 Power/Batch xx xx xx xx 8mm cartridge 2.1.02
Convex C-1 Power/Batch xx xx xx xx Reel-to-reel xx Note 4
Convex C-2 Power/Batch xx xx xx xx Reel-to-reel xx
Cray X,Y-MP Super/Batch xx xx xx xx Reel-to-reel 6.0
Cray 2 Super/Batch xx xx xx xx Reel-to-reel 6.0
DEC Batch xx xx xx xx Reel-to-reel xx Note 4
IBM 3090 MVS Super xx xx xx xx Reel-to-reel xx Note 5
IBM 3090 VM Super xx xx xx xx Reel-to-reel xx Note 5
IBM 3090 AIX Super xx xx xx xx Reel-to-reel xx Note 5
HARDWARE NOTES
1: Under the Disk column, the first number is the minimum total disk space
required while the second number is the minimum swap space required.
2: FORTRAN is required for the QUANTA Open Interface.
3: The following IBM RS/6000 hardware configuration is required for
QUANTA/CHARMm software: 24-bit 3D graphics, 24-bit Z-buffer, Ethernet LAN
adaptor, and the FORTRAN 2.01 run-time libraries (xlfrte 02.01).
4: CHARMm, X-PLOR, and UHBD are not supported on the Convex C-1.
5: ▇▇▇▇ Batch is not supported on the IBM 3090.
PART NUMBERS
Replace XX in all software part numbers with the following machine codes:
4D All SGI 4D sereis except Indigo DT SGI Indigo ST Stardent Titan
ES E&S ESV RS All IBM RS/6000 series
FX Alliant C1 Convex C-1 C2 Convex C-2
CX Cray X-MP ▇▇ ▇▇▇▇ Y-MP ▇▇ ▇▇▇▇ 2
MV IBM 3090 MVS VM IBM 3090 VM/CMS AX IBM 3090 AIX
VS DEC VMX
Polygen/Molecular Simulations Japan Price List
January 30, 1992 Proprietary and Confidential
Prices are valid only when purchased with hardware Page 7 of 9
CONTINUING LICENSE/MAINTENANCE
Part Number Description Academic Price/S.U. Commercial Price/S.U.
----------------------------------------------------------------------------------------------------
SL1SS ▇▇▇▇▇ ▇ (Standard Support) Y 35 Y220
Provides the following services:
Continuing license fee
Upgrade of existing software
Hotline support of products: Calls returned within 4 hours of receipt
SL2SS ▇▇▇▇▇ ▇ (Scientific Support) Y105 Y265
Provides the following services:
Continuing license fee
Upgrade of existing software
Hotline support of products: Calls returned within 1 hour of receipt
Monthly status calls from senior scientific staff members
Monthly report of software problems
Scientific support for modeling problems
SCIENTIFIC PROGRAMS
Part Number Description Cost/Time Period
----------------------------------------------------------------------------------------------------
SSCON Scientific Consulting Y175,000 per day
SPMDL Molecular Design Lab Y700,000 per week
Seat in Introductory Molecular Modeling Course
Use of software on a dedicated machine
Access to Polygen and Harvard scientists
NOTE: A minimum of two weeks is required.
TRAINING PROGRAMS
Part Number Description Cost/Time Period
----------------------------------------------------------------------------------------------------
Introductory Molecular Modeling Y175,000/3 days
Advanced CHARMm Y262,500/2 days
Advanced Protein Modeling Y262,500/2 days
Advanced Polymer Modeling Y262,500/2 days
Polygen/Molecular Simulations Japan Price List
Proprietary and Confidential January 30, 1992
POLYGEN/MOLECULAR SIMULATIONS
MOLECULAR MODELING SOFTWARE PRODUCTS
POLICIES AND PROCEDURES
EFFECTIVE JANUARY 01, 1992
TITLE
All right, title and interest in and to the software licensed and any related
documentation and any copies thereof which may be made by licensee are and shall
remain the exclusive property of licensor or licensor's licensor, as to software
sublicensed by licensor to licensee; licensor and its licensors are collected
referred to as the software owners. Any third party software designated in the
applicable price list as subject to a separate license agreement is subject to
the terms of the agreement accompanying such software. Each software owner shall
have the right to enforce this agreement against licensee as to such software
owner's software.
SOFTWARE LICENSE FEES
Use of the software by licensee shall be subject to the licensee signing the
Polygen/Molecular Simulations Standard Software License Agreement.
UNBUNDLED FEE
In the instance where software is not purchased with hardware, the software list
price shall be increased by an additional amount equal to twenty percent (20%)
of such software list price (the unbundled fee).
PAYMENT TERMS
Unless otherwise arranged, Polygen/Molecular Simulations will invoice purchaser
at the time of shipment of each installment on payment terms of each on
delivery, except where open account credit is established and maintained to
Polygen/Molecular Simulations' satisfaction, in which case payment terms shall
be net 30 days from date of shipment. Purchaser shall make all payments as
provided without regard to whether purchaser has made or may make any inspection
or use of any goods delivered. Any invoiced amount which is not paid when due
shall bear interest at the rate of 2% per month or the highest rate then
permitted by law, whichever is less.
WARRANTY
The software as delivered and installed on the designated system will conform
substantially to licensor's then current published program specifications.
Licensee acknowledges, however, that the software is of such complexity that
it may have inherent or latent defects and agrees that as licensee's sole remedy
licensor will exercise its best efforts to correct documented program errors
which licensors's analysis indicates are caused by a defect in the unaltered
version of the delivered software as installed on an unaltered designated
system. Licensor does not guarantee the results of any such services or
represent or warrant that any such error will be corrected. The foregoing
warranty extends only to licensee and is not applicable to any transferee of the
software license.
LICENSE TRANSFER POLICY
All computers and software are expected to be written off over four years.
Customers will be able to transfer their current software license to a faster
computer (at the same site) and receive a credit equal to 25% of the lower of
the price actually paid or the current price for the license for each year left
in the four years since shipment to the customer by Polygen/Molecular
Simulations. To receive this credit, the customer must be current on
maintenance.
TERMS AND CONDITIONS
Software orders must be accompanied by the software quotation with standard
quote terms and conditions and a standard software license agreement. Loaners
must be accompanied by a standard software loaner agreement. Any software
purchase or loaner which does include the above documents or which documents
deviate from standard terms must be approved in advance.
QUOTE VALIDITY
Software quotes are valid for 30 days only.
SOFTWARE LOANER PERIOD
Unless otherwise arranged, software to commercial organizations may only be
loaned for a period of 15 days: software to academic institutions may only be
loaned for a period of 30 days.
APPENDIX D
WIRE TRANSFER (BANK) INFORMATION
Bank: Shawmut Bank, NA
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Routing No.: ABA ▇▇▇▇▇▇▇▇▇
Account No.: 20-103-394-4
29.
APPENDIX E
PMSI TRADEMARKS
POLYGRAF
NMRgraf
BIOGRAF
CERIUS
X-PLOR
Polaris
MADNMR
UHBD
The Company may use the foregoing Trademarks which have not been registered in
Japan. PMSI intends to file applications for registration of these Trademarks
with the assistance of the Company.
Applications for the following Trademarks are pending before the Patent Office
of Japan, and upon the approval and registration of such Trademarks in Japan,
the Company may use such Trademarks in connection with the distribution and
advertising of the Software:
CHARMm
QUANTA
30.
Exhibit B
COMMON STOCK PURCHASE AGREEMENT
February 14, 1992
between
POLYGEN CORPORATION
and
TEIJIN LIMITED
TABLE OF CONTENTS
Page
----
1. AUTHORIZATION AND SALE; CLOSING........................... 1
1.1 Authorization and Sale ............................. 1
1.2 Closing and Delivery ............................... 1
2. REPRESENTATIONS AND WARRANTIES OF PMSI ................... 1
2.1 Organization..................................... 1
2.2 Subsidiaries..................................... 2
2.3 Capitalization................................... 2
2.4 Authority Relative to this Agreement............. 2
2.5 Shares........................................... 3
2.6 Compliance with Law ............................. 3
2.7 No Conflicts..................................... 3
2.8 Governmental Consents ........................... 3
2.9 Financial Statements............................. 3
2.10 Absence of Certain Changes....................... 4
2.11 Employee Plans................................... 5
2.12 Properties, Liens, etc. ......................... 5
2.13 Litigation....................................... 6
2.14 Major Contracts ................................. 6
2.15 Taxes ........................................... 7
2.16 Absence of Undisclosed Liabilities............... 7
2.17 Governmental Authorizations and Regulations ..... 7
2.18 Intellectual Property Rights..................... 7
2.19 Insurance ....................................... 7
2.20 Full Disclosure ................................. 8
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER........... 8
3.1 Organization; Authority Relative to this
Agreement ....................................... 8
3.2 No Conflicts..................................... 8
3.3 Governmental Consents ........................... 8
3.4 General Investment Representations............... 9
3.5 No Public Market................................. 9
4. ADDITIONAL AGREEMENTS..................................... 9
4.1 Cooperation; Information......................... 9
4.2 Legal Conditions................................. 10
4.3 Expenses......................................... 10
4.4 Additional Actions............................... 10
i.
5. CONDITIONS PRECEDENT ........................................ 10
5.1 Conditions of Obligations of PMSI .................. 10
5.2 Conditions of Obligations of the Purchaser.......... 11
6. TERMINATION.................................................. 11
6.1 Termination ........................................ 11
6.2 Effect of Termination .............................. 12
7. GENERAL PROVISIONS .......................................... 12
7.1 Survival of Representations, Warranties and
Agreements.......................................... 12
7.2 Notices ............................................ 12
7.3 Interpretation...................................... 12
7.4 Amendment .......................................... 12
7.5 Counterparts........................................ 13
7.6 Miscellaneous ...................................... 13
7.7 Governing Law ...................................... 13
7.8 Dispute Resolution.................................. 13
EXHIBITS
Exhibit A: PMSI Disclosure Schedule
Exhibit B: Certificate of Incorporation of PMSI
Exhibit C: Bylaws of PMSI
Exhibit D: Amendment to the Amended and Restated Investor
Rights Agreement
Exhibit E: Opinion of Counsel
ii.
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement ("Agreement") is made as of
February 14, 1992 between Polygen Corporation, a Delaware corporation, with its
principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("PMSI"), and Teijin
Limited, a corporation organized under the laws of Japan, with its principal
office at 6-7, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇▇▇▇▇, ▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ (the
"Purchaser").
1. AUTHORIZATION AND SALE; CLOSING.
1.1 Authorization and Sale. PMSI has authorized the issuance and sale
of an aggregate of Two Million Seven Hundred Sixty-Six Thousand Eight Hundred
and Twenty-Seven (2,766,827) shares (the "Shares") of its Common Stock pursuant
to this Agreement. Subject to the terms and conditions hereof, PMSI shall issue
and sell to the Purchaser, and the Purchaser shall purchase from PMSI, at the
Closing (defined below), the Shares at a purchase price of $0.8132059 per Share
for a total of ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars
(U.S.$2,250,000) (the "Purchase Price").
1.2 Closing and Delivery. The closing of the issuance and sale of the
Shares under this Agreement (the "Closing") shall be held at 10:00 a.m. on March
6, 1992 (the "Closing Date"), at the offices of ▇▇▇▇▇▇ Godward ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
& ▇▇▇▇▇, Palo Alto, California, U.S.A., or at such other time and place as PMSI
and the Purchaser may agree. At the Closing, subject to the terms and conditions
of this Agreement, PMSI shall deliver to the Purchaser a certificate
representing the Shares against payment of the Purchase Price by means of a
check drawn on a U.S. bank or a wire transfer to an account designated by PMSI.
2. REPRESENTATIONS AND WARRANTIES OF PMSI
Except as disclosed or excepted on the PMSI Disclosure Schedule
attached hereto as Exhibit A, PMSI represents and warrants to the Purchaser as
follows:
2.1 Organization. PMSI is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, has all
requisite corporate power and authority to own, operate or lease its properties
and assets and to carry on its business as it is now being conducted, and is
duly qualified to do business and is in good standing in each jurisdiction where
the failure to be so qualified would have a material adverse effect upon its
business as presently conducted. True and complete copies of PMSI's Certificate
of Incorporation and Bylaws as in effect on the date hereof are attached hereto
as Exhibits B and C, respectively.
1.
2.2 Subsidiaries. PMSI does not presently own or control, directly or
indirectly, any equity interest in any corporation, association or business
entity. PMSI is not, directly or indirectly, a participant in any joint venture
or partnership.
2.3 Capitalization. The authorized capital stock of PMSI consists of
Eighty Million (80,000,000) shares of Common Stock, par value $.0001, Forty-Two
Million Five Hundred Seventy Thousand Three Hundred and Fourteen (42,570,314)
shares of which are currently outstanding. There are Nine Million Six Hundred
Twenty-Six Thousand Nine Hundred and Forty-Seven (9,626,947) shares of Common
Stock currently reserved for issuance upon the exercise of stock options under
PMSI's employee stock option plan (the "PMSI Plan"). All of the outstanding
shares of the capital stock of PMSI were, and any shares of PMSI Common Stock
issued upon exercise of options under the PMSI Plan, and any securities issuable
upon the exercise of outstanding warrants to purchase PMSI securities, will be,
validly issued and are fully paid, nonassessable and not subject to preemptive
rights created by statute, the Certificate of Incorporation or the Bylaws of
PMSI or any agreement to which PMSI is a party or is bound, and such capital
stock, warrants and options have been issued in full compliance with all
applicable federal and state securities laws. Except for the shares identified
above as issuable pursuant to the PMSI Plan, except for Three Hundred
Seventy-Two Thousand Four Hundred and Thirty-Nine (372,439) shares of Common
Stock issuable upon exercise of outstanding warrants and except as contemplated
by this Agreement, there are no options, warrants, calls, rights, commitments or
agreements of any character to which PMSI is a party or by which it is bound
obligating PMSI to issue, deliver or sell additional shares of the capital stock
of PMSI or obligating PMSI to grant, extend or enter into any such option,
warrant, call, right, commitment or agreement.
2.4 Authority Relative to this Agreement. PMSI has all requisite
corporate power and authority to enter into, deliver and perform this Agreement
and to carry out its obligations under this Agreement. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereunder have been duly authorized by its Board of Directors and no other
corporate proceedings on the part of PMSI are necessary to authorize this
Agreement or the transactions contemplated hereunder. This Agreement is the
valid and binding obligation of PMSI enforceable against PMSI in accordance with
its terms, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application relating to or
affecting enforcement of creditor's rights and by rules of law governing
specific performance, injunctive relief or other equitable remedies.
2.
2.5 Shares. The Shares, when issued and delivered to the Purchaser in
accordance with this Agreement, will be duly and validly authorized and issued,
fully paid and nonassessable.
2.6 Compliance with Law. PMSI is in compliance in all material respects
with all laws and regulations applicable to its operations or with respect to
which compliance is a condition of engaging in its business, except for failures
to comply, which, in the aggregate, would not have a material adverse effect on
PMSI's business as presently conducted.
2.7 No Conflicts. Neither the execution, delivery and performance of
this Agreement by PMSI, the consummation of the transactions contemplated by
this Agreement, nor compliance by PMSI with any of the provisions of this
Agreement will (i) violate, conflict with or result in a breach of any terms,
conditions or provisions of the Certificate of Incorporation or the Bylaws of
PMSI or any material agreement, instrument or obligation to which PMSI is a
party or by which PMSI may be bound, or give rise to a right of termination,
cancellation or acceleration of any obligation or to loss of a material benefit
under, or result in the creation of a material lien or encumbrance on any of the
properties or assets of PMSI under any such material agreement, instrument or
obligation, except for such violations, breaches, terminations, accelerations,
losses or impositions of liens which would not, in the aggregate, have a
material adverse effect on PMSI's business as presently conducted, or (ii) to
the best of PMSI's knowledge, violate or threaten to violate any judgment,
ruling, order, writ, injunction, decree, statute, rule or regulation applicable
to PMSI or any of its properties or assets.
2.8 Governmental Consents. No consent, approval or authorization of, or
registration or filing with, any court, administrative agency or commission or
other governmental authority or instrumentality (a "Governmental Entity") is
required by or with respect to PMSI in connection with the execution and
delivery of this Agreement by PMSI or the consummation by PMSI of the
transactions contemplated hereby, except for such consents, approvals, orders,
authorizations, registrations, declarations and filings as shall have been made
or obtained prior to the Closing.
2.9 Financial Statements.
(a) PMSI has delivered to the Purchaser copies of its
unaudited balance sheet at December 31, 1991 and its unaudited income
statement for the year then ended (the financial statements referred to in this
Section 2.9(a) are hereinafter collectively referred to as the "PMSI Financial
Statements").
3.
(b) The PMSI Financial Statements have been prepared in accordance with
generally accepted accounting principles and applied on a consistent basis
throughout the periods indicated, except as otherwise set forth in such
financial statements and the notes thereto; provided, however, that the
unaudited financial statements are subject to normal, recurring year-end audit
adjustments which will not, individually or in the aggregate, be material,
except as may be indicated in the footnotes thereto. Such Financial Statements
present fairly the financial position of PMSI as of the date thereof and the
results of operations of PMSI for the period indicated therein (subject, in the
case of unaudited statements, to normal, recurring audit adjustments). Except as
and to the extent reflected or reserved against in such balance sheet (including
the notes thereto), PMSI does not have any liabilities or obligations (absolute
or contingent) of a nature required to be or customarily reflected in a balance
sheet (or the notes thereto) prepared in accordance with generally accepted
accounting principles consistently applied.
2.10 Absence of Certain Changes. Since December 31, 1991, there has not
occurred or arisen any of the following:
(a) any change in the nature of the business, prospects, financial
condition, or manner of conducting the business of PMSI, other than changes in
the ordinary course of business, none of which has had, or may reasonably be
expected to have, a material adverse effect on PMSI's business as presently
conducted; or
(b) any damage or casualty loss (including, without limitation, any
occurrence affecting the soil or groundwater condition of any real property
presently or formerly owned, operated or leased by PMSI), whether covered by
insurance or not, having a material adverse effect on PMSI's business as
presently conducted; or
(c) any declaration, setting aside or payment of a dividend (whether in
cash, stock or property) in respect of, or repurchase or redemption of, the
capital stock of PMSI; or
(d) any actual or, to the knowledge of PMSI, threatened strike (whether
asserted or unasserted) or other labor trouble or dispute involving employees of
PMSI that has had or is having a material adverse affect on PMSI's business as
presently conducted; or
(e) any borrowing or lending of money or guarantee of any obligation by
PMSI, except in the ordinary course of business not involving any employee or
director of PMSI; or
4.
(f) any disposition of any material properties or assets used in the
business of PMSI, except sales from inventory made in the ordinary course of
business; or
(g) any violation of or conflict with any applicable laws, statutes,
orders, rules or regulations promulgated or judgment entered by any court,
Government Entity or other competent authority which, individually or in the
aggregate, has had or could reasonably be expected to have a material adverse
effect on PMSI's business as presently conducted; or
(h) any notice of any violation, inquiry or investigation by any
Governmental Entity that has had or could reasonably be expected to have a
material adverse effect on PMSI's business as presently conducted; or
(i) any disposal or lapse of any patent, trademark, trade name or
service ▇▇▇▇ registration, copyright, copyright registration or any application
therefor; or
(j) any increase in the compensation of any of PMSI's employees,
officers or directors; or
(k) any agreement or arrangement by PMSI to do any of the things
described in this Section 2.10.
2.11 Employee Plans. PMSI does not maintain, administer or contribute
to or have any liability under any oral or written pension, profit sharing,
bonus, incentive, deferred compensation, stock purchase, stock option, group
insurance (or self-insured program) providing life, health, accident, disability
or other similar coverage, severance pay, retirement or other employee benefit
plan, agreement or arrangement other than the PMSI Plan.
2.12 Properties, Liens, etc. Except as reflected in the PMSI Financial
Statements or in the notes thereto and except for statutory mechanic's and
materialmen's liens, liens for current taxes not yet delinquent or liens or
encumbrances which do not confer upon the secured parties rights to property
which are material to PMSI, PMSI owns, free and clear of any liens, claims,
charges, options or other encumbrances, all of its tangible and intangible
property, real and personal, whether or not reflected in the PMSI Financial
Statements, except that sold or disposed of in the ordinary course of business
since December 31, 1991, and all such property acquired since such date, and
PMSI is not aware of any violation by it of any law, regulation or ordinance
(including without limitation, laws, regulations or ordinances relating to
zoning, environmental, city planning or similar matters) relating to PMSI's
properties or PMSI's business which may reasonably be expected to have a
material adverse effect on PMSI's business as presently conducted. There are no
proceedings affecting any of such properties pending or, to the best of
5.
PMSI's knowledge, overtly threatened which may reasonably be expected to
curtail, materially and adversely, the use of such property for the purpose for
which it was acquired or the purpose for which it is used.
2.13 Litigation. There is no private or governmental litigation or
proceeding or, to the best of PMSI's knowledge, investigation or claim against
PMSI pending or, to the knowledge of PMSI, threatened which, if determined
adversely, may reasonably be expected to have a material adverse effect on
PMSI's business as presently conducted, and there are no judgments, decrees or
orders enjoining PMSI in respect of, or the effect of which is to prohibit, any
business practice or the acquisition of any property or the conduct of business
in any area which is material to its business as presently conducted.
2.14 Major Contracts. PMSI is not a party to or bound by any:
(a) Union contract or any material employment contract or arrangement
providing for future compensation with any officer, consultant, director or
employee which is not terminable by it on thirty (30) days' notice or less
without penalty or obligation to make payments related to such termination;
(b) Joint venture contract or arrangement or any similar agreement
which involves a sharing of profits with other parties;
(c) Instrument evidencing indebtedness for borrowed money by way of
direct loan, sale of debt securities, purchase money obligation, conditional
sale, guarantee, or otherwise, except for trade indebtedness incurred in the
ordinary course of business and except as disclosed in the PMSI Financial
Statements;
(d) Contract containing covenants purporting to limit PMSI's freedom to
compete in any line of business in any geographic area;
(e) Material license agreement, either as licensor or licensee
(excluding non-exclusive software licenses granted to customers or end-users in
the ordinary course of business).
All agreements, instruments, etc. listed in the PMSI Disclosure
Schedule pursuant to this Section 2.14 are valid and in full force and effect
and PMSI has not, nor to the knowledge of PMSI has any other party thereto,
breached any material provision of, or is in default in any material respect
under the terms of, any such agreement, instrument, etc., which breach or
default may reasonably be expected to have a material adverse effect on
6.
PMSI's business as presently conducted. PMSI is not in default under any
material lease to which it is a party.
2.15 Taxes. PMSI has filed all federal, foreign and state tax returns
required to be filed, and has paid, or has made adequate provision or set up an
adequate accrual or reserve for the payment of, all taxes required to be paid in
respect of the periods for which returns are due (except in any case in an
amount not material), and in its opinion it has no material liability for taxes
in excess of the amount so paid or accruals or reserves so established. PMSI is
not delinquent in the payment of any material tax, assessment or governmental
charge and is not delinquent in the filing of any tax returns, and no material
deficiencies for any tax, assessment or governmental charge have been
threatened, claimed, proposed or assessed. PMSI's federal, foreign and state
income tax returns have never been audited by the Internal Revenue Service or
comparable state or foreign agencies. For purposes of this Agreement, the term
"tax" shall include all federal, state, local and foreign taxes and related
governmental charges.
2.16 Absence of Undisclosed Liabilities. PMSI has no material liability
or obligation, either accrued, absolute, contingent or otherwise which, either
singly or in the aggregate, exceeds ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars
(U.S.$100,000) except as reflected in the PMSI Financial Statements.
2.17 Governmental Authorizations and Regulations. All licenses,
franchises, permits and other governmental authorizations held by PMSI that are
material in connection with its business are valid and sufficient for its
business as presently conducted. PMSI's business is not being conducted in
violation of any law, ordinance or regulation of any Governmental Entity, except
for such violations that either singularly or in the aggregate do not and will
not have a material adverse effect on PMSI's business as presently conducted.
2.18 Intellectual Property Rights. PMSI has sufficient title and
ownership of, or rights as a licensee under, all patents, trademarks, service
marks, trade names, copyrights, trade secrets and information (collectively, the
"Proprietary Rights") necessary for its business as now conducted and as
proposed to be conducted without any conflict with or infringement of the rights
of others, and no other person has made any claim that PMSI is in violation of
or infringing any Proprietary Rights of any third party, which violation or
infringement could have a material adverse effect on PMSI's business as
presently conducted.
2.19 Insurance. PMSI maintains valid and enforceable insurance policies
for the assets and operations of PMSI in amounts deemed adequate by PMSI, in
each case issued by insurers
7.
of recognized national standing. The PMSI Disclosure Schedule lists all claims
outstanding under such policies, if any, with respect to which PMSI has notified
its respective insurance carriers.
2.20 Full Disclosure. No statement by PMSI contained in this Agreement
or any written statement or certificate furnished or to be furnished to the
Purchaser pursuant hereto or in connection with the transactions contemplated
hereby (when read together) contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances under
which they were made.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser hereby represents and warrants to PMSI as follows:
3.1 Organization; Authority Relative to this Agreement. The Purchaser
is a corporation duly organized, validly existing and in good standing under the
laws of Japan and has all requisite corporate power and authority to enter into,
deliver and perform this Agreement and to carry out its obligations under this
Agreement. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereunder have been duly authorized by Purchaser's
Board of Directors and no other corporate proceedings on the part of Purchaser
are necessary to authorize this Agreement or the transactions contemplated
hereunder. This Agreement is the valid and binding obligation of the Purchaser
enforceable in accordance with its terms, except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application relating to or affecting enforcement of creditor's rights and by
rules of law governing specific performance, injunctive relief or other
equitable remedies.
3.2 No Conflicts. Neither the execution, delivery and performance of
this Agreement by the Purchaser nor the consummation of the transactions
contemplated hereby will violate or result in a breach of any of the terms,
conditions or provisions of the Purchaser's Articles of Incorporation or any
material agreement, instrument or obligation to which the Purchaser is a party
or by which it is bound or violate any judgment, ruling, order, writ,
injunction, decree, statute, rule, or regulation applicable to the Purchaser.
3.3 Governmental Consents. No consent, approval or authorization of,
or registration or filing with any Governmental Entity is required by or with
respect to the Purchaser in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby, except
for
8.
such consents, approvals, orders, authorizations, registrations, declarations
and filings as shall have been made or obtained prior to the Closing.
3.4 General Investment Representations.
(a) The Purchaser is acquiring the Shares for its own account, not as
nominee or agent, for investment and not with a view to, or for
resale in connection with, any distribution or public offering
thereof within the meaning of the Securities Act of 1933, as
amended (the "1933 Act").
(b) The Purchaser understands that (i) the Shares have not been
registered under the 1933 Act by reason of a specific exemption
therefrom, that the Shares must be held by it indefinitely, and
that the Purchaser must, therefore, bear the economic risk of such
investment indefinitely, unless a subsequent disposition thereof is
registered under the 1933 Act or is exempt from such registration;
(ii) each certificate representing the Shares will be endorsed with
a legend in substantially the form specified in Section 2.3 of the
Amended and Restated Investor Rights Agreement (and may be endorsed
with any other legend that may be required by any applicable
securities law) and (iii) PMSI will instruct any transfer agent not
to register the transfer of any of the Shares unless the conditions
specified in such legend are satisfied.
(c) The Purchaser has been furnished with such materials and has been
given access to such information relating to PMSI as it and its
representatives have requested and it has been afforded the
opportunity to ask questions regarding PMSI and the Shares, all as
it has found necessary to make an informed investment decision.
(d) By reason of the Purchaser's business or financial experience, or
the business or financial experience of its advisors, it has the
capacity to protect its own interests in connection with this
transaction.
(e) The Purchaser was not formed for the specific purpose of acquiring
the Shares offered hereunder.
3.5 No Public Market. The Purchaser understands that no public market
now exists for any of the securities issued by PMSI and that there
is no assurance that a public market will ever exist for the
Shares.
4. ADDITIONAL AGREEMENTS.
4.1 Cooperation; Information. PMSI and the Purchaser shall cooperate
in good faith toward the end that the transactions con-
9.
templated in this Agreement shall be consummated in accordance with this
Agreement.
4.2 Legal Conditions. PMSI and the Purchaser will take all reasonable
actions necessary to comply promptly with all legal requirements which may be
imposed on it with respect to the transactions contemplated in this Agreement
and will promptly cooperate with and furnish information to the other party in
connection with any such requirements imposed upon the other party in connection
with the transactions contemplated in this Agreement. Each party to this
Agreement will take all reasonable actions to obtain (and to cooperate with the
other party in obtaining) any consent, authorization, order or approval of, or
any exemption by, any Governmental Entity, or other third party, required to be
obtained or made by such party or the other party in connection with the
transactions contemplated in this Agreement.
4.3 Expenses. Each party shall bear its own costs and expenses incurred
in connection with this Agreement and the transactions contemplated hereby
including, without limitation, legal and accounting fees.
4.4 Additional Actions. Subject to the terms and conditions of this
Agreement, each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all reasonable action and to do, or cause to be
done, all things reasonably necessary, proper or advisable under applicable laws
and regulations to consummate and make effective the transactions contemplated
by this Agreement.
5. CONDITIONS PRECEDENT.
5.1 Conditions of Obligations of PMSI. The obligations of PMSI under
this Agreement are subject to the satisfaction on or prior to the Closing Date
of the following conditions, unless waived by PMSI:
(a) Government Approvals. All authorizations, consents, orders
or approvals of, or declarations or filings with any Governmental Entity
necessary for the consummation of the transactions contemplated by this
Agreement shall have been filed, occurred or been obtained.
(b) Representations and Warranties. The representations and
warranties of the Purchaser set forth in this Agreement shall be true and
correct in all material respects as of the date of this Agreement and as of the
Closing Date as though made on and as of the Closing Date.
10.
(c) Performance of Obligations of the Purchaser. The Purchaser
shall have performed in all material respects all obligations required to be
performed by it under this Agreement prior to the Closing Date.
(d) Investor Rights Agreement. The Purchaser shall have
executed and delivered to PMSI the Amendment to the Amended and Restated
Investor Rights Agreement attached hereto as Exhibit D.
5.2 Conditions of Obligations of the Purchaser. The obligations of the
Purchaser pursuant to this Agreement are subject to the satisfaction on or prior
to the Closing Date of the following conditions, unless waived by the Purchaser:
(a) Government Approvals. All authorizations, consents, orders
or approvals of, or declarations or filings with any Governmental Entity
necessary for the consummation of the transactions contemplated by this
Agreement shall have been filed, occurred or been obtained.
(b) Representations and Warranties. The representations and
warranties of PMSI set forth in this Agreement shall be true and correct in all
material respects as of the date of this Agreement and as of the Closing Date as
though made on and as of the Closing Date.
(c) Performance of Obligations of PMSI. PMSI shall have
performed all obligations required to be performed by it under this Agreement
prior to the Closing Date.
(d) Investor Rights Agreement. PMSI and not less than sixty
percent (60%) of PMSI's stockholders who are parties to the Amended and Restated
Investor Rights Agreement shall have executed and delivered to the Purchaser the
Amendment to the Amended and Restated Investor Rights Agreement attached hereto
as Exhibit D.
(e) Opinion of Counsel. PMSI shall have delivered to the
Purchaser the written opinion of PMSI's counsel, ▇▇▇▇▇▇ Godward ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
& ▇▇▇▇▇, in the form attached hereto as Exhibit E, dated as of the Closing Date.
6. TERMINATION.
6.1 Termination. This Agreement may be terminated at any time prior to
the Closing Date:
(a) by mutual consent of the Purchaser and PMSI; or
(b) by either party if the Closing has not taken place by June
30, 1992.
11.
6.2 Effect of Termination. In the event of termination of this
Agreement as provided in Section 6.1, this Agreement shall forthwith become void
and there shall be no liability or obligation on the part of any party or their
respective officers or directors except that nothing set forth herein shall
relieve a party hereto from liability for its breach of this Agreement.
7. GENERAL PROVISIONS.
7.1 Survival of Representations, Warranties and Agreements. All
representations, warranties and agreements in this Agreement or in any related
instrument shall survive the Closing.
7.2 Notices. All notices and other communications hereunder shall be in
writing in the English language and shall be deemed to have been given (i) ten
(10) days after being sent by registered or certified airmail, postage prepaid,
(ii) three (3) business days after being sent by commercial overnight courier,
or (iii) two (2) business days after being transmitted by confirmed telecopy to
the parties at the addresses set forth below (or at such other address for a
party as shall be specified by like notice):
(a) if to PMSI, to:
Polygen Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
(b) if to the Purchaser, to:
Teijin Limited
Iino ▇▇▇▇▇▇▇▇
▇-▇, ▇▇▇▇▇▇▇▇▇▇-▇▇▇ ▇-▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Manager,
Information System Development
Department
7.3 Interpretation. The table of contents and headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
7.4 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
12.
7.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed and
delivered by each of the parties, it being understood that all parties need not
sign the same counterpart.
7.6 Miscellaneous. This Agreement and the documents and instruments and
other agreements among the parties hereto (a) constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof; (b) are not intended to confer upon
any other person any rights or remedies hereunder; and (c) shall not be assigned
by operation of law or otherwise except as otherwise specifically provided
herein.
7.7 Governing Law. This Agreement shall be governed in all respects by
the laws of the State of Delaware as applied to contracts entered into and
performed entirely within Delaware; provided, however, that the provisions of
this Agreement relating to dispute resolution, as set forth in Section 7.8
below, shall be governed exclusively by the provisions of the United States
Arbitration Act (9 U.S.C. Section 1 et. seq.) notwithstanding any different or
contrary provision of state law.
7.8 Dispute Resolution. If a dispute arises between the parties hereto
arising out of or in relation to this Agreement, the parties shall use all
reasonable efforts to resolve the dispute through good faith discussions. The
senior management of each of the Purchaser and PMSI commits itself to respond
promptly to any such dispute. In the event that the Purchaser and PMSI are
unable, after exerting all reasonable efforts, to resolve the said dispute, the
said dispute shall be finally settled through binding arbitration on the
following basis:
(a) The arbitration shall be conducted by a panel of three (3)
arbitrators under the International Arbitration Rules of the American
Arbitration Association then in force, by which each of the Purchaser and PMSI
agrees to be bound. Within thirty (30) days after notice of arbitration has been
given, each of the Purchaser and PMSI shall appoint one (1) arbitrator. The
arbitrators appointed by the parties shall then appoint a third arbitrator who
shall serve as the presiding arbitrator.
(b) If demand for arbitration is made by the Purchaser, the
place of arbitration shall be Boston, Massachusetts, U.S.A., and if demand for
arbitration is made by PMSI, the place of arbitration shall be Tokyo, Japan.
(c) The language to be used in the arbitration shall be
English.
13.
(d) Any arbitrator may be of any nationality, and need not be a lawyer
or hold any other professional status or membership.
(e) The arbitral award shall be rendered in writing, shall state the
reasons for the award, and shall be final and binding upon the parties hereto.
In no event shall the arbitral award include a sum of punitive damages.
(f) Judgment upon any award may be entered by any court of competent
jurisdiction, or application may be made to such a court for judicial acceptance
of the award and any appropriate order including enforcement.
(g) Each of the Purchaser and PMSI shall bear its own expenses and
attorneys' fees in connection with the arbitration.
IN WITNESS WHEREOF, PMSI and the Purchaser have signed this Agreement
or caused this Agreement to be signed by their respective agents thereunto duly
authorized, all as of the date first written above.
POLYGEN CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
TEIJIN LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President and
Chief Executive Officer
14.
EXHIBIT B
Exhibit 1
to the Agreement
of Merger
CERTIFICATE OF INCORPORATION OF
POLYGEN CORPORATION
ARTICLE I
The name or this corporation is Polygen Corporation.
ARTICLE II
The address of the registered office of the corporation in the State of
Delaware is Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
ARTICLE III
The nature of the business or purposes to be conducted or promoted is
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
ARTICLE IV
This corporation is authorized to issue one class of stock to be
designated "Common Stock". The total number of shares which the corporation is
authorized to issue is eighty million (80,000,000) shares, par value $0.0001 per
share.
ARTICLE V
Except as otherwise provided in this Certificate of Incorporation, in
furtherance and not in limitation of the powers conferred by statute, the Board
of Directors is expressly authorized to make, repeal, alter, amend and rescind
any or all of the Bylaws of the corporation.
ARTICLE VI
The number of directors of the corporation shall be fixed from time to
time by a bylaw or amendment thereof duly adopted by the Board of Directors or
by the stockholders.
ARTICLE VII
Elections of directors need not be by written ballot unless the Bylaws
of the corporation shall so provide.
ARTICLE VIII
A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit. If the Delaware General Corporation Law is amended after
approval by the stockholders of this Article to authorize corporation action
further eliminating or limiting the personal liability of directors then the
liability of a director of the corporation shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law as so amended.
Any repeal or modification of the foregoing provisions of this Article
VIII by the stockholders of the corporation shall not adversely affect any right
or protection of a director of the corporation existing at the time of such
repeal or modification.
ARTICLE IX
The corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
ARTICLE X
The name and address of the sole incorporator of Polygen Merger
Corporation (now known as Polygen Corporation) is as follows:
▇▇▇▇▇ ▇. ▇▇▇▇▇
Cooley, Godward, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
Five ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
2.
EXHIBIT C
AMENDED BYLAWS OF
POLYGEN CORPORATION
(as amended as of January 22, 1992)
TABLE OF CONTENTS
Page
----
ARTICLE I Offices................................................... 1
Section 1. Registered Office ............................. 1
Section 2. Other Offices ................................. 1
ARTICLE II Corporate Seal........................................... 1
Section 3. Corporate Seal................................. 1
ARTICLE III Stockholders' Meetings ................................. 1
Section 4. Place of Meetings.............................. 1
Section 5. Annual Meeting ................................ 2
Section 6. Special Meetings .............................. 2
Section 7. Notice of Meetings ............................ 2
Section 8. Quorum ........................................ 2
Section 9. Adjournment and Notice of Adjourned
Meetings ..................................... 3
Section 10. Voting Rights.................................. 3
Section 11. Joint Owners of Stock.......................... 3
Section 12. List of Stockholders .......................... 4
Section 13. Action without Meeting ........................ 4
Section 14. Organization .................................. 5
ARTICLE IV Directors ............................................... 5
Section 15. Number and Term of Office ..................... 5
Section 16. Powers......................................... 5
Section 17. Vacancies ..................................... 6
Section 18. Resignation ................................... 6
Section 19. Removal ....................................... 6
Section 20. Meetings....................................... 6
(a) Annual Meetings ................................. 6
(b) Regular Meetings................................. 7
(c) Special Meetings................................. 7
(d) Telephone Meetings............................... 7
(e) Notice of Meetings............................... 7
(f) Waiver of Notice................................. 7
Section 21. Quorum and Voting.............................. 8
(a) Quorum........................................... 8
(b) Majority Vote ................................... 8
Section 22. Action without Meeting ........................ 8
Section 23. Fees and Compensation.......................... 8
i.
Section 24. Committees .................................... 8
(a) Executive Committee............................ 8
(b) Other Committees .............................. 9
(c) Term .......................................... 9
(d) Meetings ...................................... 9
Section 25. Organization .................................. 10
ARTICLE V Officers .................................................. 10
Section 26. Officers Designated............................ 10
Section 27. Tenure and Duties of Officers.................. 11
(a) General........................................ 11
(b) Duties of Chairman of the Board of Directors... 11
(c) Duties of President............................ 11
(d) Duties of Vice Presidents...................... 11
(e) Duties of Secretary............................ 12
(f) Duties of Treasurer............................ 12
Section 28. Resignations .................................. 12
Section 29. Removal........................................ 13
ARTICLE VI Execution of Corporate Instruments and Voting
of Securities Owned by the Corporation...................... 13
Section 30. Execution of Corporate Instruments ............ 13
Section 31. Voting of Securities Owned by the
Corporation .................................. 13
ARTICLE VII Shares of Stock.......................................... 14
Section 32. Form and Execution of Certificates ............ 14
Section 33. Lost Certificates.............................. 14
Section 34. Transfers...................................... 14
Section 35. Fixing Record Dates............................ 15
Section 36. Registered Stockholders........................ 15
ARTICLE VIII Other Securities of the Corporation .................... 15
Section 37. Execution of Other Securities.................. 15
ARTICLE IX Dividends ................................................ 16
Section 38. Declaration of Dividends ...................... 16
Section 39. Dividend Reserve .............................. 16
ARTICLE X Fiscal Year................................................ 17
Section 40. Fiscal Year.................................... 17
ARTICLE XI Indemnification of Officers,
Directors, Employees and Agents ............................ 17
Section 42. Indemnification in Derivative Actions ......... 17
Section 43. Indemnification upon Successful Defense ....... 18
Section 45. Authority to Advance Expenses ................. 18
Section 46. Provisions Nonexclusive ....................... 19
ii.
Section 47. Authority to Insure.................................... 19
Section 48. Definition of Corporation.............................. 19
Section 49. Severability .......................................... 19
ARTICLE XII Notices ................................................ 20
Section 50. Notices ...................................... 20
(a) Notice to Stockholders................................ 20
(b) Notice to Directors .................................. 20
(C) Address Unknown ...................................... 20
(d) Affidavit of Mailing.................................. 20
(e) Time Notices Deemed Given ............................ 20
(f) Methods of Notice.... ................................ 21
(g) Failure to Receive Notice ............................ 21
(h) Notice to Person with Whom Communication Is
Unlawful.............................................. 21
ARTICLE XIII Amendments ............................................ 21
Section 51. Amendments.................................... 21
iii.
BYLAWS
OF
POLYGEN CORPORATION
(a Delaware corporation)
(as amended as of January 22, 1992)
ARTICLE I
Offices
Section 1. Registered Office. The registered office of the corporation
in the State of Delaware is Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of New Castle. The name of its registered agent at
such address is The Corporation Trust Company.
Section 2. Other Offices. The corporation shall also have and maintain
an office or principal place of business in Waltham, Massachusetts, at such
place as may be fixed by the Board of Directors, and may also have offices at
such other places, both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the corporation may
require.
ARTICLE II
Corporate Seal
Section 3. Corporate Seal. The corporate seal shall consist of a die
bearing the name of the corporation and the inscription, "Corporate
Seal-Delaware." Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE III
Stockholders' Meetings
Section 4. Place of Meetings. Meetings of the stockholders of the
corporation shall be held at such place, either within or without the State of
Delaware, as may be designated from time to time by the Board of Directors, or,
if not so designated, then at the office of the corporation required to be
maintained pursuant to Section 2 hereof.
Section 5. Annual Meeting. The annual meeting of the stockholders of
the corporation for the purpose of election of Directors and for such other
business as may lawfully come before it shall be held on such date and at such
time as may be designated from time to time by the Board of Directors.
Section 6. Special Meetings. Special meetings of the stockholders of
the corporation may be called, for any purpose or purposes, by the President or
the Board of Directors at any time. Upon written request of any stockholder or
stockholders holding in the aggregate twenty percent (20%) of the voting power
of all stockholders delivered in person or sent by registered mail to the
President or Secretary, the Secretary shall call a special meeting of
stockholders to be held at the office of the corporation required to be
maintained pursuant to Section 2 hereof at such time as the Secretary may fix,
such meeting to be held not fewer than ten (10) nor more than sixty (60) days
after the receipt of such request, and if the Secretary shall neglect or refuse
to call such meeting, within seven (7) days after the receipt of such request,
the stockholder making such request may do so.
Section 7. Notice of Meetings. Except as otherwise provided by law or
the Certificate of Incorporation, written notice of each meeting of stockholders
shall be given not fewer than ten (10) nor more than sixty (60) days before the
date of the meeting to each stockholder entitled to vote at such meeting, such
notice to specify the place, date and hour and purpose or purposes of the
meeting. Notice of the time, place and purpose of any meeting of stockholders
may be waived in writing, signed by the person entitled to notice thereof,
either before or after such meeting, and will be waived by any stockholder by
his attendance thereat in person or by proxy, except when the stockholder
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened. Any stockholder so waiving notice of such meeting shall be
bound by the proceedings of any such meeting in all respects as if due notice
thereof had been given.
Section 8. Quorum. At all meetings of stockholders, except where
otherwise provided by statute or by the Certificate of Incorporation, or by
these Bylaws, the presence, in person or by proxy duly authorized, of the
holders of a majority of the outstanding shares of stock entitled to vote shall
constitute a quorum for the transaction of business. Any shares, the voting of
which at said meeting has been enjoined, or which for any reason cannot be
lawfully voted at such meeting, shall not be
2.
counted to determine a quorum at such meeting. In the absence of a quorum any
meeting of stockholders may be adjourned, from time to time, by vote of the
holders of a majority of the shares represented thereat, but no other business
shall be transacted at such meeting. The stockholders present at a duly called
or convened meeting, at which a quorum is present, may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum. Except as otherwise provided by law,
the Certificate of Incorporation or these Bylaws, all action taken by the
holders of a majority of the voting power represented at any meeting at which a
quorum is present shall be valid and binding upon the corporation.
Section 9. Adjournment and Notice of Adjourned Meetings. Any meeting of
stockholders, whether annual or special, may be adjourned from time to time by
the vote of a majority of the shares, the holders of which are present either in
person or by proxy. When a meeting is adjourned to another time or place, notice
need not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting, the corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than thirty
(30) days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 10. Voting Rights. For the purpose of determining those
stockholders entitled to vote at any meeting of the stockholders, except as
otherwise provided by law, only persons in whose names shares stand on the stock
records of the corporation on the record date, as provided in Section 12 of
these Bylaws, shall be entitled to vote at any meeting of stockholders. Every
person entitled to vote or execute consents shall have the right to do so either
in person or by an agent or agents authorized by a written proxy executed by
such person or his duly authorized agent, which proxy shall be filed with the
Secretary at or before the meeting at which it is to be used. An agent so
appointed need not be a stockholder. No proxy shall be voted on after three (3)
years from its date of creation unless the proxy provides for a longer period.
All elections of Directors shall be by written ballot, unless otherwise provided
in the Certificate of Incorporation.
Section 11. Joint Owners of Stock. If shares or other securities having
voting power stand of record in the names of
3.
two (2) or more persons, whether fiduciaries, members of a partnership, joint
tenants, tenants in common, tenants by the entirety, or otherwise, or if two (2)
or more persons have the same fiduciary relationship respecting the same shares,
unless the Secretary is given written notice to the contrary and is furnished
with a copy of the instrument or order appointing them or creating the
relationship wherein it is so provided, their acts with respect to voting shall
have the following effect: (a) if only one (1) votes, his act binds all; (b) if
more than one (1) votes, the act of the majority so voting binds all; (c) if
more than one (1) votes, but the vote is evenly split on any particular matter,
each faction may vote the securities in question proportionally, or may apply to
the Delaware Court of Chancery for relief as provided in Section 217(b) of the
General Corporation Law of Delaware. If the instrument filed with the Secretary
shows that any such tenancy is held in unequal interests, a majority or
even-split for the purpose of this subsection (c) shall be a majority or
even-split in interest.
Section 12. List of Stockholders. The Secretary shall prepare and make,
at least ten (10) days before every meeting of stockholders, a complete list of
the stockholders entitled to vote at said meeting, arranged in alphabetical
order, showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten (10) days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall be
produced and kept at the time and place of meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 13. Action without Meeting. Unless otherwise provided in the
Certificate of Incorporation, any action required by statute to be taken at any
annual or special meeting of the stockholders, or any action which may be taken
at any annual or special meeting of the stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written
4.
consent shall be given to those stockholders who have not consented in writing.
Section 14. Organization. At every meeting of stockholders, the
chairman of the Board of Directors, or, if a Chairman has not been appointed or
is absent, the President, or, if the President is absent, the most senior Vice
President present, or in the absence of any such officer, a chairman of the
meeting chosen by a majority in interest of the stockholders entitled to Vote,
present in person or by proxy, shall act as chairman. The Secretary, or, in his
absence, an Assistant Secretary directed to do so by the President, shall act as
secretary of the meeting.
ARTICLE IV
Directors
Section 15. Number and Term of Office. The number of Directors which
shall constitute the whole of the Board of Directors shall be not fewer than two
(2) nor more than ten (10). The precise number of Directors shall be fixed by
the Board of Directors and the Board may change such number from time to time
within the limits set forth in this Section 15; provided, however, that a
resolution of the Board reducing the number of Directors shall not affect the
tenure of any Director then in office, each of whom shall continue to serve
until the earliest of the expiration of his term, his resignation or his removal
in the manner provided in these Bylaws. Except as provided in Section 17, the
Directors shall be elected by the stockholders at their annual meeting in each
year and shall hold office until the next annual meeting and until their
successors shall be duly elected and qualified. Directors need not be
stockholders unless so required by the Certificate of Incorporation. If for any
cause, the Directors shall not have been elected at an annual meeting, they may
be elected as soon thereafter as convenient at a special meeting of the
stockholders called for that purpose in the manner provided in these Bylaws.
Section 16. Powers. The powers of the corporation shall be exercised,
its business conducted and its property controlled by the Board of Directors,
except as may be otherwise provided by statute or by the Certificate of
Incorporation. The Board of Directors may delegate the management of the
day-to-day operation of the business of the Corporation to a management company
or other person, provided that the business and affairs
5.
of the corporation shall be managed and all corporate powers shall be exercised
under the ultimate direction of the Board of Directors .
Section 17. Vacancies. Unless otherwise provided in the Certificate of
Incorporation, vacancies and newly created directorships resulting from any
increase in the authorized number of Directors may be filled by a majority of
the Directors then in office, although less than a quorum, or by a sole
remaining Director, and each Director so elected shall hold office for the
unexpired portion of the term of the Director whose place shall be vacant and
until his successor shall have been duly elected and qualified. A vacancy in the
Board of Directors shall be deemed to exist under this Section 17 in the case of
the death, removal or resignation of any Director, or if the stockholders fail
at any meeting of stockholders at which Directors are to be elected (including
any meeting referred to in Section 19 below) to elect the number of Directors
then constituting the whole Board of Directors.
Section 18. Resignation. Any Director may resign at any time by
delivering his written resignation to the Secretary, such resignation to specify
whether it will be effective at a particular time, upon receipt by the Secretary
or at the pleasure of the Board of Directors. If no such specification is made,
it shall be deemed effective at the pleasure of the Board of Directors. When one
or more Directors shall resign from the Board of Directors, effective at a
future date, a majority of the Directors then in office, including those who
have so resigned, shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, and each Director so chosen shall hold office for the unexpired
portion of the term of the Director whose place shall be vacated and until his
successor shall have been duly elected and qualified.
Section 19. Removal. At a special meeting of stockholders called for
the purpose in the manner hereinabove provided, the Board of Directors, or any
individual Director, may be removed from office, with or without cause, and a
new Director or Directors elected by a vote of stockholders holding a majority
of the outstanding shares entitled to vote at an election of Directors .
Section 20. Meetings.
(a) Annual Meetings. The annual meeting of the Board of
Directors shall be held immediately after the annual
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meeting of stockholders and at the place where such meeting is held. No notice
of an annual meeting of the Board of Directors shall be necessary and such
meeting shall be held for the purpose of electing officers and transacting such
other business as may lawfully come before it.
(b) Regular Meetings. Except as hereinafter otherwise provided, regular
meetings of the Board of Directors shall be held in the office of the
corporation required to be maintained pursuant to Section 2 hereof. Unless
otherwise restricted by the Certificate of Incorporation, regular meetings of
the Board of Directors may also be held at any place within or without the State
of Delaware which has been designated by resolution of the Board of Directors or
the written consent of all Directors.
(c) Special Meetings. Unless otherwise restricted by the Certificate of
Incorporation, special meetings of the Board of Directors may be held at any
time and place within or without the State of Delaware whenever called by the
President or a majority of the Directors.
(d) Telephone Meetings. Any member of the Board of Directors, or of any
committee thereof, may participate in a meeting by means of conference telephone
or similar communications equipment by means of which all persons participating
in the meeting can hear each other, and participation in a meeting by such means
shall constitute presence in person at such meeting.
(e) Notice of Meetings. Written notice of the time and place of all
regular and special meetings of the Board of Directors shall be given at least
one (1) day before the date of the meeting. Notice of any meeting may be waived
in writing at any time before or after the meeting and will be waived by any
Director by attendance thereat, except when the Director attends the meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
(f) Waiver of Notice. The transaction of all business at any meeting of
the Board of Directors, or any committee thereof, however called or noticed, or
wherever held, shall be as valid as though had at a meeting duly held after
regular call and notice, if a quorum be present and if, either before or after
the meeting, each of the Directors not present shall sign a written waiver of
notice, or a consent to holding such meeting, or an approval of the minutes
thereof. All such
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waivers, consents or approvals shall be filed with the corporate records or made
a part of the minutes of the meeting.
Section 21. Quorum and Voting.
(a) Quorum. Unless the Certificate of Incorporation requires a greater
number, a quorum of the Board of Directors shall consist of a majority of the
exact number of Directors fixed from time to time in accordance with Section 15
of these Bylaws, but not fewer than one (1); provided, however, at any meeting
whether a quorum be present or otherwise, a majority of the Directors present
may adjourn from time to time until the time fixed for the next regular meeting
of the Board of Directors, without notice other than by announcement at the
meeting.
(b) Majority Vote. At each meeting of the Board of Directors at which a
quorum is present all questions and business shall be determined by a vote of a
majority of the Directors present, unless a different vote be required by law,
the Certificate of Incorporation or these Bylaws.
Section 22. Action without Meeting. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and such writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee.
Section 23. Fees and Compensation. Directors shall not receive any
stated salary for their services as Directors, but by resolution of the Board of
Directors a fixed fee, with or without expense of attendance, may be allowed for
attendance at each meeting and at each meeting of any Committee of the Board of
Directors. Nothing herein contained shall be construed to preclude any Director
from serving the corporation in any other capacity as an officer, agent,
employee, or otherwise and receiving compensation therefor.
Section 24. Committees.
(a) Executive Committee. The Board of Directors may by
resolution passed by a majority of the whole Board of Directors, appoint an
Executive Committee to consist of one (1) or more members of the Board of
Directors. The Executive Committee, to the extent permitted by law and
specifically
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granted by the Board of Directors, shall have and may exercise when the Board of
Directors is not in session all powers of the Board of Directors in the
management of the business and affairs of the corporation, including, without
limitation, the power and authority to declare a dividend or to authorize the
issuance of stock, except such committee shall not have the power or authority
to amend the Certificate of Incorporation, to adopt an agreement of merger or
consolidation, to recommend to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets, to recommend
to the stockholders of the corporation a dissolution of the corporation or a
revocation of a dissolution or to amend these Bylaws.
(b) Other Committees. The Board of Directors may, by resolution passed
by a majority of the whole Board of Directors, from time to time appoint such
other committees as may be permitted by law. Such other committees appointed by
the Board of Directors shall consist of one (1) or more members of the Board of
Directors, and shall have such powers and perform such duties as may be
prescribed by the resolution or resolutions creating such committees, but in no
event shall such committees have the powers denied to the Executive Committee in
these Bylaws.
(c) Term. The members of all committees of the Board of Directors shall
serve a term coexistent with that of the Board of Directors which shall have
appointed such committee. The Board of Directors, subject to the provisions of
subsections (a) or (b) of this Section 24, may at any time increase or decrease
the number of members of a committee or terminate the existence of a committee.
The membership of a committee member shall terminate on the date of his death or
voluntary resignation. The Board of Directors may at any time for any reason
remove any individual committee member and the Board of Directors may fill any
committee vacancy created by death, resignation, removal or increase in the
number of members of the committee. The Board of Directors may designate one or
more Directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee, and, in addition, in the
absence or disqualification of any member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absent or
disqualified member.
(d) Meetings. Unless the Board of Directors shall otherwise provide,
regular meetings of the Executive
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Committee or any other committee appointed pursuant to this Section 24 shall be
held at such times and places as are determined by the Board of Directors, or by
any such committee, and when notice thereof has been given to each member of
such committee, no further notice of such regular meetings need be given
thereafter. Special meetings of any such committee may be held at the principal
office of the corporation required to be maintained pursuant to Section 2
hereof, or at any place which has been designated from time to time by
resolution of such committee or by written consent of all members thereof, and
may be called by any Director who is a member of such committee, upon written
notice to the members of such committee of the time and place of such special
meeting given in the manner provided for the giving of written notice to members
of the Board of Directors of the time and place of special meetings of the Board
of Directors. Notice of any special meeting of any committee may be waived in
writing at any time before or after the meeting and will be waived by any
Director by attendance thereat, except when the Director attends such special
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened. A majority of the authorized number of members of any such committee
shall constitute a quorum for the transaction of business, and the act of a
majority of those present at any meeting at which a quorum is present shall be
the act of such committee.
Section 25. Organization. At every meeting of the Directors, the
Chairman of the Board of Directors, or, if a Chairman has not been appointed or
is absent, the President, or if the President is absent, the most senior Vice
President, or, in the absence of any such officer, a chairman of the meeting
chosen by a majority of the Directors present, shall preside over the meeting.
The Secretary, or in his absence, an Assistant Secretary directed to do so by
the President, shall act as secretary of the meeting.
ARTICLE V
Officers
Section 26. Officers Designated. The officers of the corporation shall
be the Chairman of the Board of Directors, the President, one or more Vice
Presidents, the Secretary and the Treasurer, all of whom shall be elected at the
annual meeting of the Board of Directors. The order of the seniority of the Vice
Presidents shall be in the order of their nomination, unless otherwise
determined by the Board of Directors. The Board of
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Directors may also appoint one or more Assistant Secretaries, Assistant
Treasurers, and such other officers and agents with such powers and duties as it
shall deem necessary. The Board of Directors may assign such additional titles
to one or more of the officers as it shall deem appropriate. Any one person may
hold any number of offices of the corporation at any one time unless
specifically prohibited therefrom by law. The salaries and other compensation of
the officers of the corporation shall be fixed by or in the manner designated by
the Board of Directors.
Section 27. Tenure and Duties of Officers.
(a) General. All officers shall hold office at the pleasure of the
Board of Directors and until their successors shall have been duly elected and
qualified, unless sooner removed. Any officer elected or appointed by the Board
of Directors may be removed at any time by the Board of Directors. If the office
of any officer becomes vacant for any reason, the vacancy may be filled by the
Board of Directors.
(b) Duties of Chairman of the Board of Directors. The Chairman of the
Board of Directors, when present, shall preside at all meetings of the
stockholders and the Board of Directors. The Chairman of the Board of Directors
shall perform other duties commonly incident to his office and shall also
perform such other duties and have such other powers as the Board of Directors
shall designate from time to time.
(c) Duties of President. The President shall preside at all meetings of
the stockholders and at all meetings of the Board of Directors, unless the
Chairman of the Board of Directors has been appointed and is present. The
President shall be the chief executive officer of the corporation and shall,
subject to the control of the Board of Directors, have general supervision,
direction and control of the business and officers of the corporation. The
President shall perform other duties commonly incident to his office and shall
also perform such other duties and have such other powers as the Board of
Directors shall designate from time to time.
(d) Duties of Vice Presidents. The Vice Presidents, in the order of
their seniority, may assume and perform the duties of the President in the
absence or disability of the President or whenever the office of President is
vacant. The Vice Presidents shall perform other duties commonly incident to
their office and shall also perform such other duties and have such other powers
as the Board of Directors or the President shall designate from time to time.
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(e) Duties of Secretary. The Secretary shall extend all
meetings of the stockholders and of the Board of Directors, and shall record all
acts and proceedings thereof in the minute book of the corporation. The
Secretary shall give notice in conformity with these Bylaws of all meetings of
the stockholders, and of all meetings of the board of directors and any
committee thereof requiring notice. The secretary shall perform all other duties
given him in these Bylaws and other duties commonly incident to his office and
shall also perform such other duties and have such other powers as the Board of
Directors shall designate from time to time. The President may direct any
Assistant Secretary in the absence or disability of the Secretary, and each
Assistant Secretary shall perform the duties of the Secretary to assume and
perform other duties commonly incident to his office and shall also perform such
other duties and have such other powers as the Board of Directors or the
President shall designate from time to time.
(f) Duties of Treasurer. The Treasurer shall keep or cause to
be kept the books of account of the corporation in a thorough and proper manner,
and shall render statements of the financial affairs of the corporation in such
form and as often as required by the Board of Directors or the President. The
Treasurer, subject to the order of the Board of Directors, shall have the
custody of all funds and securities of the corporation. The Treasurer shall
perform other duties commonly incident to his office and shall also perform such
other duties and have such other powers as the Board of Directors or the
President shall designate from time to time. The President may direct any
Assistant Treasurer to assume and perform the duties of the Treasurer in the
absence or disability of the Treasurer, and each Assistant Treasurer shall
perform other duties commonly incident to his office and shall also perform such
other duties and have such other powers as the Board of Directors or the
President shall designate from time to time.
Section 28. Resignations. Any officer may resign at any time by giving
written notice to the Board of Directors or to the President or to the
Secretary. Any such resignation shall be effective when received by the person
or persons to whom such notice is given, unless a later time is specified
therein, in which event the resignation shall become effective at such later
time. Unless otherwise specified in such notice, the acceptance of any such
resignation shall not be necessary to make it effective.
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Section 29. Removal. Any officer may be removed from office at any
time, either with or without cause, by the vote or written consent of a majority
of the Directors in office at the time, or by any committee or superior officers
upon whom such power of removal may have been conferred by the Board of
Directors.
ARTICLE VI
Execution of Corporate Instruments and Voting
of Securities Owned by the Corporation
Section 30. Execution of Corporate Instruments. The Board of Directors
may, in its discretion, determine the method and designate the signatory officer
or officers, or other person or persons, to execute on behalf of the corporation
any corporate instrument or document, or to sign on behalf of the corporation
the corporate name without limitation, or to enter into contracts on behalf of
the corporation, except where otherwise provided by law or these Bylaws, and
such execution or signature shall be binding upon the corporation.
Unless otherwise specifically determined by the Board of Directors or
otherwise required by law, promissory notes, deeds of trust, mortgages and other
evidences of indebtedness of the corporation, and other corporate instruments or
documents requiring the corporate seal, and certificates of shares of stock
owned by the corporation, shall be executed, signed or endorsed by the Chairman
of the Board of Directors, or the President or any Vice President, and by the
Secretary or Treasurer or any Assistant Secretary or Assistant Treasurer. All
other instruments and documents requiring the corporate signature, but not
requiring the corporate seal, may be executed as aforesaid or in such other
manner as may be directed by the Board of Directors.
All checks and drafts drawn on banks or other depositories on funds to
the credit of the corporation or in special accounts of the corporation shall be
signed by such person or persons as the Board of Directors shall authorize so to
do.
Section 31. Voting of Securities Owned by the Corporation. All stock
and other securities of other corporations owned or held by the corporation for
itself, or for other parties in any capacity, shall be voted, and all proxies
with respect thereto shall be executed, by the person authorized so to do by
resolution of the Board of Directors, or, in the
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absence of such authorization, by the Chairman of the Board of Directors, the
President, or any Vice President.
ARTICLE VII
Shares of Stock
Section 32. Form and Execution of Certificates. Certificates for the
shares of stock of the corporation shall be in such form as is consistent with
the Certificate of Incorporation and applicable law. Every holder of stock in
the corporation shall be entitled to have a certificate signed by or in the name
of the corporation by the Chairman of the Board of Directors, or the President
or any Vice President and by the Treasurer or Assistant Treasurer or the
Secretary or Assistant Secretary, certifying the number of shares owned by him
in the corporation. Where such certificate is countersigned by a transfer agent
other than the corporation or its employee, or by a registrar other than the
corporation or its employee, any other signature on the certificate may be a
facsimile. In case any officer, transfer agent, or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent, or registrar before such certificate is
issued, it may be issued with the same effect as if he were such officer,
transfer agent, or registrar at the date of issue. Each certificate shall state
upon the face or back thereof, in full or in summary, all of the designations,
preferences, limitations, restrictions on transfer and relative rights of the
shares authorized to be issued.
Section 33. Lost Certificates. A new certificate or certificates shall
be issued in place of any certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen, or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen, or destroyed. The corporation may require, as a condition
precedent to the issuance of a new certificate or certificates, the owner of
such lost, stolen, or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require or to
give the corporation a surety bond in such form and amount as it may direct as
indemnity against any claim that may be made against the corporation with
respect to the certificate alleged to have been lost, stolen, or destroyed.
Section 34. Transfers. Transfer of record of shares of stock of the
corporation shall be made only upon its books by the holders thereof, in person
or by attorney duly authorized,
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and upon the surrender of a properly endorsed certificate or certificates for a
like number of shares.
Section 35. Fixing Record Dates. In order that the corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty (60) nor fewer than
ten (10) days before the date of such meeting, nor more than sixty (60) days
prior to any other action. If no record date is fixed: (a) the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held; (b) the record date
for determining stockholders entitled to express consent to corporate action in
writing without a meeting, when no prior action by the Board of Directors is
necessary, shall be the day on which the first written consent is expressed; and
(c) the record date for determining stockholders for any other purpose shall be
at the close of business on the day on which the Board of Directors adopts the
resolution relating thereto. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
Section 36. Registered Stockholders. The corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and shall not
be bound to recognize any equitable or other claim to or interest in such share
or shares on the part of any other person whether or not it shall have express
or other notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VIII
Other Securities of the Corporation
Section 37. Execution of Other Securities. All bonds, debentures and
other corporate securities of the corporation, other than stock certificates,
may be signed by the Chairman of
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the Board of Directors, the President or any Vice President, or such other
person as may be authorized by the Board of Directors, and the corporate seal
impressed thereon or a facsimile of such seal imprinted thereon and attested by
the signature of the Secretary or an Assistant Secretary, or the Treasurer or an
Assistant Treasurer; provided, however, that where any such bond, debenture or
other corporate security shall be authenticated by the manual signature of a
trustee under an indenture pursuant to which such bond, debenture or other
corporate security shall be issued, the signature of the persons signing and
attesting the corporate seal on such bond, debenture or other corporate security
may be the imprinted facsimile of the signatures of such persons. Interest
coupons appertaining to any such bond, debenture or other corporate security,
authenticated by a trustee as aforesaid, shall be signed by the Treasurer or an
Assistant Treasurer of the corporation or such other person as may be authorized
by the Board of Directors, or bear imprinted thereon the facsimile signature of
such person. In case any officer who shall have signed or attested any bond,
debenture or other corporate security, or whose facsimile signature shall appear
thereon or on any such interest coupon, shall have ceased to be such officer
before the bond, debenture or other corporate security so signed or attested
shall have been delivered, such bond, debenture or other corporate security
nevertheless may be adopted by the corporation and issued and delivered as
though the person who signed the same or whose facsimile signature shall have
been used thereon had not ceased to be such officer of the corporation.
ARTICLE IX
Dividends
Section 38. Declaration of Dividends. Dividends upon the capital stock
of the corporation, subject to the provisions of the Certificate of
Incorporation, if any, may be declared by the Board of Directors pursuant to law
at any regular or special meeting. Dividends may be paid in cash, in property,
or in shares of the capital stock, subject to the provisions of the Certificate
of Incorporation.
Section 39. Dividend Reserve. Before payment of any dividend, there may
be set aside out of any funds of the corporation available for dividends such
sum or sums as the Board of Directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other purpose as the
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Board of Directors shall think conducive to the interests of the corporation,
and the Board of Directors may modify or abolish any such reserve in the manner
in which it was created.
ARTICLE X
Fiscal Year
Section 40. Fiscal Year. The fiscal year of the corporation shall
be fixed by resolution of the Board of Directors.
ARTICLE XI
Indemnification of Officers,
Directors, Employees and Agents
Section 41. General Right to Indemnification. Any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a Director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation, or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, shall be indemnified by the corporation against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. Each such person shall be indemnified to the fullest
extent permitted by Delaware law. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
Section 42. Indemnification in Derivative Actions. Any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by
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or in the right of the corporation to procure a judgment in its favor by reason
of the fact that he is or was a Director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise shall be indemnified by the corporation
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the corporation unless and only to
the extent that the Delaware Court of Chancery or the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the Delaware Court of Chancery or such other court shall deem proper.
Section 43. Indemnification upon Successful Defense. To the extent that
a Director, officer, employee or agent of the corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
in Sections 41 and 42 above, or in the defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
Section 44. Determination of Right to Indemnification. Any
indemnification under Sections 41 and 42 (unless ordered by a court) shall be
made by the corporation only as authorized in the specific case upon a
determination that indemnification of the Director, officer, employee or agent
is proper in the circumstances because he has met the applicable standard of
conduct set forth in Sections 41 and 42. Such determination shall be made (a) by
the Board of Directors by a majority vote of a quorum consisting of Directors
who were not parties to such action, suit or proceeding, or (b) if such a quorum
is not obtainable, or even if obtainable a quorum of disinterested Directors so
directs, by independent legal counsel in a written opinion, or (c) by a majority
vote of a quorum of the stockholders.
Section 45. Authority to Advance Expenses. Expenses incurred in
defending a civil or criminal action, suit or proceeding may be paid by the
corporation in advance of the final
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disposition of such action, suit or proceeding as authorized by the Board of
Directors in the specific case upon receipt of any undertaking by or on behalf
of the Director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
corporation as authorized in this Article.
Section 46. Provisions Nonexclusive. The indemnification provided by
this Article shall not be deemed exclusive of any other rights to which a person
seeking indemnification may be entitled under any bylaw, agreement, vote of
stockholders or disinterested Directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such office
and shall continue as to a person who has ceased to be a Director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 47. Authority to Insure. The corporation is authorized to
purchase and maintain insurance on behalf of any person who is or was a
Director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would have the power to indemnify him against such liability under the
provisions of this Article.
Section 48. Definition of Corporation. For the purposes of this Article
XI, references to "the corporation" include any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had authority
to indemnify its directors, officers and employees or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation or is or was serving at the request of such constituent corporation,
partnership, joint venture, trust or other enterprise shall stand in the same
position under the provisions of this Article XI with respect to the resulting
or surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
Section 49. Severability. The invalidity or unenforceability of any
provision of this Article XI shall not
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affect the validity or enforceability of the remaining provisions of this
Article.
ARTICLE XII
Notices
Section 50. Notices.
(a) Notice to Stockholders. Whenever, under any provisions of
these Bylaws, notice is required to be given to any stockholder, it shall be
given in writing, timely and duly deposited in the United States mail, postage
prepaid, and addressed to his last known post office address as shown by the
stock record of the corporation or its transfer agent.
(b) Notice to Directors. Any notice required to be given to
any Director may be given by the method stated in subsection (a), or by
telegram, except that such notice other than one which is delivered personally
shall be sent to such address as such Director shall have filed in writing with
the Secretary, or, in the absence of such filing, to the last known post office
address of such Director.
(c) Address Unknown. If no address of a stockholder or
Director to be known, notice may be sent to the office of the corporation
required to be maintained pursuant to Section 2 hereof.
(d) Affidavit of Mailing. An affidavit of mailing, executed by
a duly authorized and competent employee of the corporation or its transfer
agent appointed with respect to the class of stock affected, specifying the name
and address or the names and addresses of the stockholder or stockholders, or
Director or Directors, to whom any such notice or notices was or were given, and
the time and method of giving the same, shall be conclusive evidence of the
statements therein contained.
(e) Time Notices Deemed Given. All notices given by mail, as
above provided, shall be deemed to have been given as at the time of mailing and
all notices given by telegram shall be deemed to have been given as at the
sending time recorded by the telegraph company transmitting the notices.
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(f) Methods of Notice. It shall not be necessary that the same
method of giving notice be employed in respect of all Directors, but one
permissible method may be employed in respect of any one or more, and any other
permissible method or methods may be employed in respect of any other or others.
(g) Failure to Receive Notice. The period or limitation of
time within which any stockholder may exercise any option or right, or enjoy any
privilege or benefit, or be required to act, or within which any Director may
exercise any power or right, or enjoy any privilege, pursuant to any notice sent
to him in the manner above provided, shall not be affected or extended in any
manner by the failure of such stockholder or such Director to receive such
notice.
(h) Notice to Person with Whom Communication Is Unlawful.
Whenever notice is required to be given, under any provision of law or of the
Certificate of Incorporation or Bylaws of the corporation, to any person with
whom communication is unlawful, the giving of such notice to such person shall
not be required and there shall be no duty to apply to any governmental
authority or agency for a license or permit to give such notice to such person.
Any action or meeting which shall be taken or held without notice to any such
person with whom communication is unlawful shall have the same force and effect
as if such notice had been duly given. In the event that the action taken by the
corporation is such as to require the filing of a certificate under any
provision of the Delaware General Corporation Law, the certificate shall state,
if such is the fact and if notice is required, that notice was given to all
persons entitled to receive notice except such persons with whom communication
is unlawful.
ARTICLE XIII
Amendments
Section 51. Amendments. These Bylaws may be repealed, altered or
amended or new Bylaws adopted by the stockholders. The Board of Directors shall
also have the authority, if such authority is conferred upon the Board of
Directors by the Certificate of Incorporation, to repeal, alter or amend these
Bylaws or adopt new Bylaws (including, without limitation, the amendment of any
new Bylaw setting forth the number of Directors who shall constitute the whole
Board of Directors) subject to the power of the stockholders to change or repeal
such Bylaws and provided that the Board of Directors shall not make or alter any
21.
Bylaws fixing the qualifications, classifications, term of office or
compensation of Directors.
EXHIBIT D
AMENDMENT TO AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
This Amendment to Amended and Restated Investor Rights Agreement (the
"Amendment") is made pursuant to Paragraph 3.3 of the Amended and Restated
Investor Rights Agreement dated as of October 18, 1991 (the "Agreement") by and
among POLYGEN CORPORATION, a Delaware corporation (the "Company") and various
investors in the Company as listed on Exhibit A and B to the Agreement. All
terms capitalized herein shall have the meanings ascribed to them in the
Agreement. The undersigned securityholders hereby agree as of February ___, 1992
as follows:
RECITALS
WHEREAS, on October 18, 1991, certain of the securityholders listed
below (the "Securityholders") and the Company entered into the Agreement to
provide for certain registration, information and other rights set forth therein
for such Securityholders;
WHEREAS, Section 1.16 of the Agreement provides for an
agreement for the election of the Company's Board of Directors;
WHEREAS, recently the Board of Directors of the Company approved an
amendment to Section 1.16 of the Agreement to provide for an agreement with
respect to Board of Directors' representation;
WHEREAS, the Company and the undersigned Securityholders desire that
such Section 1.16 be amended as set forth herein;
WHEREAS, the Board of Directors also recently approved the sale of
certain shares of the Company's Common Stock to Teijin Limited pursuant to that
certain Common Stock Purchase Agreement dated on or about February ___, 1992
(the "Purchase Agreement") ;
WHEREAS, in connection with the issuance and sale of such shares, the
Company, Teijin Limited and the undersigned Securityholders desire that Teijin
Limited be granted the rights
as well as the obligations of a Securityholder as set forth in the Agreement;
WHEREAS, the Amendment to the Agreement requires the approval of the
Company and the Holders of at least 60% of the Registrable Securities.
NOW, THEREFORE, BE IT RESOLVED, for good and valuable consideration,
receipt of which is hereby acknowledged, the Company, Teijin Limited and the
undersigned Securityholders hereby agree that the Agreement shall be amended by
this Amendment as follows:
1. Section 1.16 of the Agreement shall be deleted in its entirety and
shall read as follows:
"1.16 Board of Directors. Each of the undersigned Investors
agrees until December 31, 1992 to vote its shares of capital stock in
favor of (a) each of the nine members of the Board of Directors of the
Company (as constituted immediately after the consummation of the
Merger, or any successor Director to any of such nine Directors, if
any, if such Director shall have been selected by the Board of
Directors to fill a vacancy on the Board of Directors after a
Director's death or resignation) and (b) the tenth member of the Board
of Directors elected by the Board of Directors to fill the newly
created vacancy as of January 22, 1992 (or any successor to such
Director, if such Director shall have been selected by the Board of
Directors to fill a vacancy on the Board after such Director's
resignation or death.)"
2. Upon the issuance of the shares of Common Stock of the Company to
Teijin Limited pursuant to the Purchase Agreement, Teijin Limited shall be
deemed to be a party to the Agreement as if an original signatory thereto and
shall be entitled to all of the rights and agrees to be bound by all of the
obligations of an "Investor," a "Holder," a "Holder of Registrable Securities"
and a "Holder of Restricted Securities," as each such term is defined in the
Agreement.
3. Notwithstanding the foregoing, Teijin Limited shall not be subject
in any way to the terms of the Merger Agreement and Section 2.1 of the Agreement
shall apply to Teijin Limited as if it read as follows:
2.
2.1 Restrictions on Transferability. The shares of Common
Stock of the Company held by the Holders (as hereinafter defined) shall
not be transferable, except upon the conditions specified in this
Section 2, which conditions are intended to ensure compliance with the
provisions of the Securities Act, or, in the case of Section 2.15
hereof, to assist in an orderly distribution, as the case may be. Each
holder will cause any proposed transferee of Restricted Securities (as
hereinafter defined) held by that holder to agree to take and hold
those securities subject to the provisions and upon the conditions
specified in this Section 2.
4. The paragraph entitled "Registrable Securities" of Section 2.2 of
the Agreement shall be deleted in its entirety and shall read as follows:
""Registrable Securities" shall mean (i) shares of the
Company's Common Stock issued upon the automatic conversion of shares
of each of the Series A, Series B, Series C and Series D Preferred
Stock of the Company pursuant to an amendment to the Company's
Certificate of Incorporation concurrently with the consummation of the
Merger; (ii) shares of the Company's Common Stock issued to MSI common
stockholders pursuant to the Merger Agreement; (iii) shares of the
Company's Common Stock issuable upon the exercise of the Company's
Common Stock purchase warrants issued to Technology Funding Secured
Investors II ("TFSI"); (iv) shares of the Company's Common Stock issued
to Teijin Limited pursuant to the Purchase Agreement; (v) shares of the
Company's Common Stock issuable upon the exercise of common stock
options and common stock purchase warrants issued by MSI to and held by
the former MSI optionholders and MSI warrantholders assumed by the
Company in connection with the Merger; and (vi) any shares of the
Company's Common Stock issued in respect of the Common Stock set forth
in clauses (i) - (v) immediately above pursuant to any stock split,
stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions
of the Agreement shall remain in full force and effect.
6. This Amendment may be executed in any number of counterparts, each
of which may be executed by less that all of
3.
the parties hereto and each of which shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment
as of the date first above written.
POLYGEN CORPORATION
By: ___________________
Name: ___________________
Title:___________________
SECURITYHOLDER
By: _____________________
Print Name: _____________
TEIJIN LIMITED
By: _____________________
Name: ________________
Title: __________________
4.
EXHIBIT E
(On ▇▇▇▇▇▇ Godward letterhead)
February __, 1992
[to be dated as of the Closing]
Teijin Limited
▇-▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇▇▇▇▇
▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇
Ladies and Gentlemen:
We have acted as counsel for Polygen Corporation, a Delaware corporation (the
"Company"), in connection with the issuance and sale of Two Million Seven
Hundred Sixty-Six Thousand Eight Hundred and Twenty-Seven (2,766,827) shares of
the Company's Common Stock ("Shares"), to Teijin Limited (the "Purchaser") under
the Common Stock Purchase Agreement dated as of February __, 1992 (the "Purchase
Agreement") and the Amendment to the Amended and Restated Investor Rights
Agreement attached thereto as Exhibit D (collectively, the "Agreements"). We are
rendering this opinion pursuant to Section 5.2(e) of the Purchase Agreement.
Except as otherwise defined herein, capitalized terms used but not defined
herein have the respective meanings given to them in the Purchase Agreement.
In connection with this opinion, we have examined and relied upon the
representations and warranties as to factual matters contained in and made
pursuant to the Purchase Agreement by the various parties and originals or
copies certified to our satisfaction, of such records, documents, certificates,
opinions, memoranda and other instruments as in our judgment are necessary or
appropriate to enable us to render the opinion expressed below. Where we render
an opinion "to the best of our knowledge" or concerning an item "known to us" or
our opinion otherwise refers to our knowledge, it is based solely upon (i) an
inquiry of attorneys within this firm who perform legal services for the
Company, (ii) receipt of a certificate executed by an officer of the Company
covering such matters, and (iii) such other investigation, if any, that we
specifically set forth herein.
In rendering this opinion, we have assumed: the genuineness and authenticity of
all signatures on original documents; the authenticity of all documents
submitted to us
Teijin Limited
Page 2
as originals; the conformity to originals of all documents submitted to us as
copies; the accuracy, completeness and authenticity of certificates of public
officials; and the due authorization, execution and delivery of all documents
(except the due authorization, execution and delivery by the Company of the
Agreements), where authorization, execution and delivery are prerequisites to
the effectiveness of such documents. We have also assumed: that all individuals
executing and delivering documents had the legal capacity to so execute and
deliver; that you have received all documents you were to receive under the
Agreements; that the Agreements are obligations binding upon you; if you are a
corporation or other entity, that you have filed any required California
franchise or income tax returns and have paid any required California franchise
or income taxes; and that there are no extrinsic agreements or understandings
among the parties to the Agreements that would modify or interpret the terms of
the Agreements or the respective rights or obligations of the parties
thereunder.
Our opinion is expressed only with respect to the federal laws of the United
States of America, the laws of the State of California and the General
Corporation Law of the State of Delaware. We express no opinion as to whether
the laws of any particular jurisdiction apply, and no opinion to the extent that
the laws of any jurisdiction other than those identified above are applicable to
the subject matter hereof. We are not rendering any opinion as to compliance
with any antifraud law, rule or regulation relating to securities, or to the
sale or issuance thereof.
With regard to our opinion in paragraph 3 below, we have relied on the opinion
of ▇▇▇▇▇▇▇, Phleger & ▇▇▇▇▇▇▇▇, dated October 18, 1991, as to capitalization of
the Company as of the closing of the Company's merger with Molecular Simulations
Incorporated effective as of October 18, 1991.
With regard to the second sentence of our opinion in paragraph 3 below, we have
examined and relied upon a certificate executed by an officer of the Company, to
the effect that the consideration for all outstanding shares of capital stock of
the Company was received by the Company in accordance with the provisions of the
applicable Board of Directors resolutions and any plan or agreement relating to
the issuance of such shares, and we have undertaken no independent verification
with respect thereto.
Teijin Limited
Page 3
On the basis of the foregoing, in reliance thereon and with the foregoing
qualifications, and subject to the exceptions set forth in the PMSI Disclosure
Schedule from the Company to the Purchaser dated February ___, 1992, we are of
the opinion that:
1. The Company has been duly incorporated and is a validly existing corporation
in good standing under the laws of the State of Delaware, has the requisite
corporate power to own, operate and lease its properties and assets and to
conduct its business as it is currently being conducted and, to the best of our
knowledge, is qualified as a foreign corporation to do business and is in good
standing in each jurisdiction in the United States in which the ownership of its
properties or the conduct of its business requires such qualification and where
any statutory fines or penalties or any corporate disability imposed for the
failure to qualify would materially and adversely affect the Company, its
assets, financial condition or operations.
2. The Agreements have been duly and validly authorized, executed and delivered
by the Company and constitute valid and binding obligations of the Company
enforceable against the Company in accordance with their respective terms,
except as rights to indemnity may be limited by applicable laws and except as
enforcement may be limited by applicable bankruptcy, insolvency, reorganization,
arrangement, moratorium or other similar laws affecting creditors' rights, and
subject to general equity principles and to limitations on availability of
equitable relief, including specific performance.
3. The Company's authorized capital stock consists of Eighty Million
(80,000,000) common shares of which (excluding the Shares to be issued at the
Closing) Forty-Two Million Five Hundred Seventy Thousand Three Hundred and
Fourteen (42,570,314) shares are issued and outstanding. The outstanding shares
have been duly authorized and validly issued and are fully paid and
nonassessable. The Shares have been duly authorized, and upon issuance and
delivery against payment therefor in accordance with the terms of the Purchase
Agreement, the Shares will be validly issued, outstanding, fully paid and
nonassessable. To the best of our knowledge, there are no options, warrants,
conversion privileges, preemptive rights or other rights presently
Teijin Limited
Page 4
outstanding to purchase any of the authorized but unissued capital stock of the
Company, other than rights created in connection with the transactions
contemplated by the Agreements, shares reserved for issuance under the PMSI
Plan, and up to an additional Three Hundred Seventy-Two Thousand Four Hundred
and Thirty-Nine (372,439) shares of common stock under reserve for issuance upon
exercise of outstanding warrants.
4. To the best of our knowledge, there is no action, proceeding or investigation
pending or overtly threatened against the Company before any court or
administrative agency that questions the validity of the Agreements or might
result, either individually or in the aggregate, in any material adverse change
in the assets, financial condition, or operations of the Company.
5. All consents, approvals, authorizations, or orders of, and filings,
registrations, and qualifications with any regulatory authority or governmental
body in the United States required for the consummation by the Company of the
transactions contemplated by the Agreements, have been made or obtained, except
for the filing of a Notice of Transaction Pursuant To Section 25102(f) of the
California Corporate Securities Law of 1968.
6. The offer and sale of the Shares is exempt from the registration requirements
of the Securities Act of 1933, as amended.
This opinion is intended solely for your benefit and is not to be made available
to or be relied upon by any other person, firm, or entity without our prior
written consent.
Very truly yours,
▇▇▇▇▇▇ GODWARD ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
By _____________________
▇▇▇▇▇ ▇. ▇▇▇▇▇
Exhibit C
CORPORATE LICENSE AGREEMENT
February 14, 1992
between
POLYGEN CORPORATION
and
TEIJIN LIMITED
TABLE OF CONTENTS
Page
1. PROGRAM LICENSE . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1. Rights Granted . . . . . . . . . . . . . . . . . . . . 1
1.2. Documentation. . . . . . . . . . . . . . . . . . . . . 2
1.3. Shipment of Existing Programs. . . . . . . . . . . . . 2
2. SUPPORT SERVICES. . . . . . . . . . . . . . . . . . . . . . . . 2
2.1. Technical Support Services . . . . . . . . . . . . . . 2
2.2. Maintenance Fees . . . . . . . . . . . . . . . . . . . 3
2.3. Incidental Expenses. . . . . . . . . . . . . . . . . . 3
3. EFFECTIVE DATE; TERM AND TERMINATION. . . . . . . . . . . . . . 3
3.1. Effective Date . . . . . . . . . . . . . . . . . . . . 3
3.2. Term . . . . . . . . . . . . . . . . . . . . . . 3
3.3. Termination . . . . . . . . . . . . . . . . . . . . 3
3.4. Return of Programs Upon Termination of License . . . . 4
3.5. Retention of Programs Upon Termination of Joint
Venture. . . . . . . . . . . . . . . . . . . . . . . . 4
4. WARRANTIES, REMEDIES, LIMITATION OF LIABILITY . . . . . . . . . 5
4.1. Infringement Indemnity . . . . . . . . . . . . . . . . 5
4.2. Warranties, Exclusive Remedies and Disclaimers . . . . 5
4.3. Limitation of Liability. . . . . . . . . . . . . . . . 6
5. PAYMENT PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . 7
5.1. License Fee. . . . . . . . . . . . . . . . . . . . . . 7
5.2. Invoicing and Payment of Technical Support and
Other Fees . . . . . . . . . . . . . . . . . . . . . . 7
5.3. Taxes . . . . . . . . . . . . . . . . . . . . . . . 7
6. STRATEGIC TECHNOLOGY PARTNERSHIP. . . . . . . . . . . . . . . . 8
6.1. Beta Releases. . . . . . . . . . . . . . . . . . . . . 8
6.2. Evaluation and Feedback. . . . . . . . . . . . . . . . 8
6.3. Product Development Coordination . . . . . . . . . . . 8
6.4. Independent Contractors. . . . . . . . . . . . . . . . 9
7. GENERAL TERMS . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.1. Nondisclosure and Non-Use. . . . . . . . . . . . . . . 9
7.2. Governing Law; Official Language . . . . . . . . . . . 10
7.3. Dispute Resolution . . . . . . . . . . . . . . . . . . 10
7.4. Notice . . . . . . . . . . . . . . . . . . . . . . . . 11
7.5. Severability and Waiver. . . . . . . . . . . . . . . . 12
i.
7.6. Export Administration . . . . . . . . . . . . . . . . 12
7.7. Entire Agreement. . . . . . . . . . . . . . . . . . . 12
7.8. Nonassignability and Binding Effect . . . . . . . . . 12
7.9. Force Majeure . . . . . . . . . . . . . . . . . . . . 13
7.10. Survival. . . . . . . . . . . . . . . . . . . . . . . 13
7.11. Parties Advised by Counsel - No Interpretation
Against Drafter . . . . . . . . . . . . . . . . . . . 13
Appendices
Appendix A PMSI Japanese Price List
ii.
CORPORATE LICENSE AGREEMENT
This CORPORATE LICENSE AGREEMENT ("Agreement") is made as of this 14th
day of February, 1992, by and between Polygen Corporation (doing business as
Polygen Molecular Simulations Incorporated), a Delaware corporation, having its
principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇.▇.▇. ("PMSI"), and Teijin Limited, a corporation organized under the laws of
Japan, having its principal place of business at ▇-▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇▇▇▇▇,
▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ("Teijin").
Under the following terms of this Agreement, Teijin will receive a
license from PMSI for all proprietary computational chemistry software programs
of PMSI, in object code form only, presently marketed by PMSI or PMSI's
subsidiaries that are described in PMSI's current Japanese price list (the
"Price List") attached hereto as Appendix A (the "Existing Programs") and any
new computational chemistry software programs that may be marketed by PMSI or
PMSI's subsidiaries and distributed in Japan by Teijin Molecular Simulations
Incorporated (the "JV Company") pursuant to that certain Distributorship
Agreement dated as of ______________, 1992 to be entered into by and between
PMSI and the JV Company, together with new versions, revisions, updates,
maintenance releases and the like to such programs as may be made available from
time to time by PMSI (the Existing Programs, new programs, new versions,
revisions, updates and maintenance releases are hereinafter collectively
referred to as the "Programs"). For the purposes of this Agreement, the term
"Subsidiary" or "Subsidiaries" shall mean any corporation, company or other
corporate entity in Japan or any other country in the world whose voting stock
is, at any time during the term of this Agreement, fifty percent (50%) or more
directly owned by Teijin, and the term "Authorized Subsidiary" or "Authorized
Subsidiaries" shall mean a Subsidiary that has been authorized by Teijin in
writing to use the Programs as specified in this Agreement.
1. PROGRAM LICENSE
1.1. Rights Granted.
(a) PMSI hereby grants to Teijin a non-exclusive and, except
as expressly permitted hereunder, non-transferable corporate license to use, and
to authorize each of its Subsidiaries to use, the Programs solely for Teijin's
and each Subsidiary's own respective internal operations. The parties
acknowledge and agree, however, that the grant of licenses to Subsidiaries
located outside of Japan is and shall be conditioned upon prior written notice
by Teijin to PMSI and the payment of maintenance
1.
fees for such Programs by Teijin or its Authorized Subsidiaries to PMSI or
PMSI's agents in such locations.
(b) As soon as practicable after the execution of this
Agreement, Teijin shall furnish PMSI with a list in the English language of all
its Authorized Subsidiaries, and Teijin agrees to provide PMSI with updates of
such list from time to time, upon PMSI's request. Teijin agrees to cause each of
its Authorized Subsidiaries to fully abide by all the terms, conditions,
obligations and agreements imposed on or undertaken by Teijin under this
Agreement which apply to its Authorized Subsidiaries, including but not limited
to those set forth in this Section 1, and Sections 3.4, 4.1, 5.2, 5.3, 6.3, 7.1,
7.2, 7.3, 7.6, and 7.8 hereof. Teijin hereby agrees to indemnify and hold PMSI
harmless from any breach by its Authorized Subsidiaries of the foregoing
Sections.
(c) Teijin agrees not to engage in, nor to cause or permit any
Subsidiary or any other party to engage in, the reverse engineering,
disassembly, decompilation or any similar manipulation of the Programs.
(d) By operation of and performance under this Agreement,
Teijin and its Authorized Subsidiaries acquire only the right to use the
Programs as specified herein and do not acquire any rights of ownership. All
rights, title and interest in the Programs shall at all times remain the
property of PMSI or PMSI's licensors .
1.2. Documentation. PMSI will provide Teijin with one (1) copy of the
applicable Program user's manual plus any documentation normally shipped to
customers of PMSI for each CPU on which the Program is installed.
1.3. Shipment of Existing Programs. PMSI shall use its best efforts to
ship to Teijin the "MSI Programs" identified on the Price List attached hereto
as Appendix A on or before April 15, 1992, and the "Polygen Programs" identified
on said Price List on or before July 15, 1992. PMSI shall invoice Teijin for
such Existing Programs upon shipment of the same, and Teijin agrees to pay PMSI
the license fee set forth in Section 5.1 hereof upon shipment and in the manner
set forth in Section 5.1 hereof.
2. SUPPORT SERVICES
2.1. Technical Support Services. The JV Company will, on behalf of
PMSI, provide Teijin and its Authorized Subsidiaries in Japan with technical
support services, subject to the payment to the JV Company of the maintenance
fees described in Section 2.2 below and otherwise in accordance with the terms
of the JV Company's standard form of software maintenance agreement then in
effect (the "Software Maintenance Agreement"). Technical support
2.
for Authorized Subsidiaries located outside of Japan shall be contracted
directly with PMSI or PMSI's local representative at the prevailing commercial
rate.
2.2. Maintenance Fees. For the technical support services to be
rendered in Japan by the JV Company to Teijin, Teijin agrees to pay the JV
Company such maintenance fees as would normally be charged under the JV
Company's Software Maintenance Agreement for a comparable usage of the Programs
in Japan, or such other amount as may be negotiated and agreed upon between
Teijin and the JV Company and approved by PMSI in writing.
2.3. Incidental Expenses. The JV Company shall be reimbursed by Teijin
for all reasonable travel, out-of-pocket and related expenses incurred by the JV
Company for all on-site services requested by Teijin or any Authorized
Subsidiary. All such amounts shall be invoiced and paid to the JV Company in
accordance with the terms of the applicable Software Maintenance Agreement in
effect between Teijin and the JV Company.
3. EFFECTIVE DATE; TERM AND TERMINATION
3.1. Effective Date. This Agreement shall become effective on the later
to occur of: (a) the date of first shipment of any of the Existing Programs by
PMSI, 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").
3.2. Term. The term of this Agreement and each license granted under
this Agreement shall commence on the Effective Date and be perpetual unless and
until terminated as provided in Section 3.3 hereof.
3.3. Termination.
(a) Either party may terminate this Agreement or any license
granted under this Agreement in writing for any material breach of this
Agreement by the other which is not cured within sixty (60) days following
notice from the non-breaching party to the breaching party specifying such
breach. Such termination shall be effective at the end of such sixty (60) days.
Except as expressly provided herein, the parties acknowledge and agree that
Teijin's failure to pay the maintenance fees specified in Section 2.2 above
shall not be deemed to be material breach of this Agreement. The parties further
agree that if Teijin fails to pay such maintenance fees (i) the JV Company shall
no longer be obligated to provide technical support services to Teijin, and (ii)
Teijin shall no longer be entitled to receive any new versions, revisions,
updates or maintenance releases of any Programs or any new programs marketed by
PMSI or PMSI's
3.
subsidiaries. The parties furthermore agree that in the event Teijin or an
Authorized Subsidiary fails to pay maintenance fees to PMSI or PMSI's agent with
respect to licenses granted outside of Japan to said Authorized Subsidiary, as
required under Section 1.1(a) above, and does not cure such failure within the
sixty (60)-day period set forth above, such license and Teijin's right to grant
any further licenses outside of Japan to said Authorized Subsidiary shall
terminate, but such termination shall have no effect upon licenses granted to
Teijin and its Authorized Subsidiaries in the Territory.
(b) Termination of this Agreement shall be without prejudice
to or limitation on any other remedies or any accrued obligations of either
party.
3.4. Return of Programs Upon Termination of License. If a license
granted under this Agreement is terminated, Teijin shall, and Teijin shall cause
each Authorized Subsidiary to, (a) immediately cease using the applicable
Programs, and (b) certify in writing to PMSI within sixty (60) days after such
termination that it has either destroyed, permanently erased or returned to PMSI
the Programs, all related documentation and all copies. This requirement applies
to copies in all forms, partial and complete, in all types of media and computer
memory and storage, and whether or not modified or merged into other programs or
materials.
3.5. Retention of Programs Upon Termination of Joint Venture.
Notwithstanding the provisions of Section 3.4 hereof, in the event that the
joint venture between PMSI and Teijin is terminated and the JV Company is
dissolved or otherwise ceases to be jointly owned by PMSI and Teijin, Teijin may
elect to retain the use of Programs on any or all of the CPUs on which the
Programs have been installed as of the date of termination of the joint venture.
Teijin shall notify PMSI of its election in writing, specifying the CPUs
involved, within thirty (30) days following the termination of the joint
venture. For the sake of clarification, the parties acknowledge and agree that
in the event Teijin elects not to retain PMSI or its designee to provide
technical support services for the retained Programs at PMSI's then-prevailing
standard commercial maintenance rate, Teijin shall no longer be entitled to
receive any new versions, revisions, updates or maintenance releases of any
Programs or any new programs marketed by PMSI or PMSI's subsidiaries.
4.
4. WARRANTIES, REMEDIES, LIMITATION OF LIABILITY
4.1. Infringement Indemnity.
(a) PMSI will defend Teijin and its Authorized Subsidiaries
against a claim that the Existing Programs furnished and used within the scope
of this Agreement infringe any third party patent or copyright or other
intellectual property right ("Claim"), and PMSI will indemnify Teijin and its
Authorized Subsidiaries for any damages finally awarded or any final settlement
amount paid based upon a Claim, provided that: (i) Teijin or an Authorized
Subsidiary notifies PMSI in writing of the details of a Claim within thirty (30)
days after its occurrence, (ii) PMSI has sole control of the defense and all
related settlement negotiations, and (iii) Teijin and its Authorized
Subsidiaries provide PMSI (at PMSI's expense for reasonable out-of-pocket-
expenses) with the assistance, information and authority necessary to perform
the above.
(b) Notwithstanding any other provision of this Agreement,
PMSI shall have no liability for any Claim based on: (i) a modification by
Teijin or any Authorized Subsidiary of the Existing Programs, (ii) use of a
superseded or altered release of the Existing Programs if such Claim would have
been avoided by use of current or unaltered releases of the Existing Programs
that PMSI provides hereunder, or (iii) the combination, operation or use of any
of the Existing Programs furnished under this Agreement with programs or data
not furnished by PMSI if such Claim would have been avoided by use of the
Existing Programs without such programs or data.
(c) In the event the Existing Programs are held or are
believed by PMSI to infringe, PMSI shall have the option, at its expense, to (i)
modify the Existing Programs to be non-infringing, (ii) obtain for Teijin a
license to continue using the Existing Programs, (iii) substitute the Existing
Programs with other software reasonably suitable to Teijin, or (iv) terminate
the license for the infringing Existing Programs and refund a pro-rata portion
of the license fees paid for those Existing Programs, determined by amortizing
the license fees set forth in the Price List and paid for such infringing
Existing Programs on a straight-line basis over a five-year period from the
Effective Date of this Agreement. This Section 4.1 states Teijin's and each
Authorized Subsidiary's exclusive remedy and PMSI's entire liability for any
infringement.
4.2. Warranties, Exclusive Remedies and Disclaimers.
(a) Warranties. For each Program, PMSI warrants for thirty
(30) days from the date such Program is installed at Teijin's or an Authorized
Subsidiary's facilities, as the case may be (the "Installation Date"), that such
Program, unless modi-
5.
fied by Teijin or an Authorized Subsidiary, will perform the functions described
in the documentation provided by PMSI under Section 1.2 when properly operated
on the designated hardware and operating system and PMSI will undertake to
correct any reported, reproducible and repeatable error condition in accordance
with PMSI's then-prevailing Software Support Policies. PMSI does not warrant
that the operation of the Programs will be uninterrupted or error-free, that all
Program errors will be corrected, that the Programs will satisfy Teijin's or any
Authorized Subsidiary's requirements, or that the Programs will operate in the
combinations which Teijin or any Authorized Subsidiary may select for use. For
any breach of the above warranties, Teijin's and each Authorized Subsidiary's
exclusive remedy, and PMSI's entire liability, shall be the exercise of best
efforts by PMSI to correct (including suitable workarounds) the Program errors.
(b) Limitations on Warranties. THE WARRANTIES ABOVE ARE
EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT. The warranties above shall apply only if PMSI's
examination discloses to PMSI's satisfaction that alleged defects actually exist
and were not caused by Teijin's or any Authorized Subsidiary's misuse,
unauthorized modifications, neglect, improper installation or testing, attempts
to repair, or the like, or by accident, fire, power surge or failure, or other
hazard. Repair or replacement of a part, code or other item does not extend the
warranty period beyond the initial warranty period which shall begin on the
respective Installation Date.
4.3. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE
FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES UNDER THIS
AGREEMENT, INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR USE, INCURRED BY EITHER
PARTY OR ANY SUBSIDIARY OR OTHER THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT
OR TORT OR BASED ON A WARRANTY, WHETHER OR NOT THE OTHER PARTY OR ANY OTHER
PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PMSI'S LIABILITY FOR
DAMAGES UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY
TEIJIN UNDER THIS AGREEMENT, AND IF SUCH DAMAGES RESULT FROM TEIJIN'S AND/OR ANY
AUTHORIZED SUBSIDIARY'S USE OF THE PROGRAMS, SUCH LIABILITY SHALL BE LIMITED TO
A REFUND OF A PRO-RATA PORTION OF THE LICENSE FEES PAID HEREUNDER, DETERMINED BY
AMORTIZING THE LICENSE FEES PAID HEREUNDER ON A STRAIGHT-LINE BASIS OVER A
FIVE-YEAR PERIOD FROM THE EFFECTIVE DATE OF THIS AGREEMENT. SOME STATES AND
JURISDICTIONS OUTSIDE OF THE UNITED STATES DO NOT ALLOW THE LIMITATION OR
EXCLUSION OF IMPLIED WARRANTIES, OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL
DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY. TEIJIN ACKNOWLEDGES
THAT THE ALLOCATION OF RISKS AND BENEFITS UNDER THIS AGREEMENT ARE BASED ON, AND
THE LICENSE FEES UNDER THIS AGREEMENT WOULD BE GREATER IN THE ABSENCE OF, THE
LIMITATIONS DESCRIBED ABOVE.
6.
5. PAYMENT PROVISIONS
5.1. License Fee. In consideration of the licenses and rights granted
to Teijin and its Authorized Subsidiaries under this Agreement, Teijin agrees to
pay PMSI the sum of [*] by wire transfer to the bank account designated by PMSI;
Teijin shall pay [*] of such amount upon the shipment of the "MSI Programs" to
Teijin pursuant to Section 1.3 hereof, and the balance [*] upon the shipment of
the "Polygen Programs" to Teijin pursuant to Section 1.3 hereof.
5.2. Invoicing and Payment of Technical Support and Other Fees. Except
as otherwise provided in the applicable Software Maintenance Agreement, invoices
for the payment of maintenance fees, technical support and all other applicable
charges, reimbursed expenses, and the like shall be payable in full in Japa-
nese yen to the JV Company within (30) days of Teijin's receipt of the invoice
for same. All amounts shall be paid to the JV Company at a place of its choosing
as specified on the invoice. All overdue amounts shall bear interest at the rate
of two percent (2%) per month or the maximum legal rate, if less; provided that
nothing herein shall limit PMSI's right to terminate this Agreement under
Section 3.3 hereof; provided, further, that, except as provided in Section
3.3(a) above, Teijin's failure to pay the maintenance fees specified in Section
2.2 shall not, in and of itself, entitle PMSI to terminate this Agreement or the
licenses hereunder.
5.3. Taxes. The fees and amounts described or listed in this Agreement
or the Price List do not include, and Teijin shall be responsible for, any
taxes, documentary stamps or duties, whether withholding or otherwise, or any
similar assessments that may be applicable under the laws of Japan or any other
applicable law. If PMSI is required to pay sales, use, property, transfer,
value-added, or other federal, state, national, local or foreign taxes or duties
based on the licenses granted under this Agreement, the services provided under
this Agreement, or on Teijin's or its Authorized Subsidiaries' use of the
Programs, then such taxes and duties shall be billed to and paid by Teijin. This
provision shall not apply to taxes based on PMSI's net income. Notwithstanding
the foregoing, Japanese income tax may be withheld by Teijin from the license
fee payable to PMSI pursuant to Section 5.1 hereof, so long as such withholding
is required by Japanese law. Teijin shall provide PMSI with copies of tax
receipts or other documents evidencing that such taxes withheld have been paid
to the Japanese tax authorities. Such evidence shall be forwarded to PMSI no
later than thirty (30) days after such taxes have been paid.
7.
* CONFIDENTIAL TREATMENT REQUESTED
6. STRATEGIC TECHNOLOGY PARTNERSHIP
6.1. Beta Releases. The parties acknowledge that this Agreement shall
serve as the basis of a strategic technology partnership between Teijin and
PMSI, for as long as the JV Company continues to be jointly owned by Teijin and
PMSI, whereby Teijin shall receive beta releases from PMSI regarding future
products of PMSI at the same time as such releases are made available to other
strategic technology partners of PMSI. PMSI agrees to provide such beta releases
to Teijin as described in the preceding sentence, and agrees that no end user in
Japan shall receive software products from PMSI earlier than the same is
received by Teijin (if Teijin so elects to receive such software products).
6.2. Evaluation and Feedback. In return for receipt of such beta
releases from PMSI, Teijin agrees to evaluate and provide written feedback to
PMSI on the performance and functionability of such beta releases. All beta
releases and other related information provided to Teijin pursuant to this
Section 6 shall be subject to the confidentiality provisions of Section 7.1
hereof.
6.3. Product Development Coordination. Teijin agrees that, for as long
as the JV Company continues to be jointly owned by Teijin and PMSI, it will
coordinate its product development activities in the field of computational
chemistry with PMSI such that:
(a) Teijin and its Subsidiaries will not, for as long as the
JV Company is in existence, engage in the development, licensing, or sale of any
product (except for "SetPro" which is currently under development and "Materia"
which is currently being sold) that Competes (as such term is defined below)
with the Programs or any other software product under development or planned to
be developed by PMSI and/or PMSI's subsidiaries which are disclosed to Teijin in
writing in sufficient detail to enable Teijin to comply with the provisions of
this Section 6.3(a). For the purposes of this Agreement, two products shall be
considered to "Compete" with one another if the sale of one product would
substantially substitute for the sale of the other product to such customer.
Without limiting the obligations of the parties hereunder, Teijin and PMSI shall
consult with each other on a yearly basis to determine which products are
competitive products; and
(b) In the event that Teijin and/or any of its Subsidiaries
intends to develop or develops a computational chemistry product (including, if
appropriate, "SetPro") which could be reasonably interfaced, built upon or
otherwise combined with software platforms or products of PMSI or those of
PMSI's subsidiaries, Teijin and/or the Subsidiary in question shall
8.
notify PMSI in writing and shall develop such product, in consultation with
PMSI, to integrate or otherwise be compatible with PMSI's and PMSI's
subsidiaries' software platforms or products .
(c) PMSI grants to Teijin the royalty-free right to use
chemistry backplane and other similar software platforms of PMSI for Teijin to
develop products in accordance with Section 6.3(b) above for sublicense and
distribution through the JV Company and PMSI, and PMSI further grants Teijin the
right to use, but not to sublicense or distribute, products of PMSI developed or
to be developed on chemistry backplane or other similar software platforms of
PMSI in connection therewith.
In the event that the joint venture between PMSI and Teijin is
terminated and the JV Company is dissolved or otherwise ceases to be jointly
owned by PMSI and Teijin, the respective obligations of PMSI and Teijin and
grant of rights to Teijin under Sections 6.1, 6.2 above and this Section 6.3
shall terminate.
6.4. Independent Contractors. Notwithstanding the foregoing, the
relationship of the parties hereto is that of independent contractors and
nothing contained in this Section or Agreement shall be deemed to create a
partnership or agency relationship between them.
7. GENERAL TERMS
7.1. Nondisclosure and Non-Use. Without the prior written consent of
the supplying party, no receiving party, its officers, agents or employees (and
in the case of Teijin, its Authorized Subsidiaries' officers, agents and
employees) shall, in the case of Confidential Information (as defined below) of
a business nature, both during the term of this Agreement and for a period of
three (3) years after termination of this Agreement and of all licenses granted
hereunder for any reason, and in the case of all Confidential Information of a
technical nature, both during the term of this Agreement and for a period of ten
(10) years after termination of this Agreement for any reason, in any manner
whatsoever disclose or communicate such information to a third party, except as
legally required by any governmental or judicial agency, and each party agrees
to keep such Confidential Information strictly confidential. For the purpose of
this Agreement, the term "Confidential Information" shall mean and include any
and all financial and other business information of either party, the Programs,
the documentation related to the Programs, information related to the Programs
(including but not limited to technical information such as design
specifications, instructions and know-how), acquired either directly or
indirectly by either party hereunder; provided, however, that all such
Confidential Information shall be clearly marked as
9.
"confidential" and the term "Confidential Information" shall not include any
information which:
(a) has become or entered the public domain through no fault
of the receiving party; or
(b) was in the demonstrable possession of the receiving party
prior to or at the time of receipt hereunder; or
(c) was or has been obtained lawfully from a third party; or
(d) has been independently developed by the receiving party
without violation of its obligations under this Agreement, and which independent
development is properly documented by such party.
Each party agrees that it shall not use any Confidential Information obtained
from the other for any purpose whatsoever except in a manner expressly provided
for in this Agreement. Teijin agrees to cause each of its Authorized
Subsidiaries to perform the acts required under and to otherwise abide by the
terms and conditions of this Section 7.1.
7.2. Governing Law; Official Language. This Agreement is made in
accordance with and shall be governed and construed under the laws of the State
of Massachusetts, U.S.A., as applied to agreements executed and performed
entirely in Massachusetts by Massachusetts residents and in no event shall this
Agreement be governed by the United Nations Convention on Contracts for the
International Sale of Goods; provided, however, that the provisions of this
Agreement relating to dispute resolution, as set forth in Section 7.3 below,
shall be governed exclusively by the provisions of the United States Arbitration
Act (9 U.S.C. Section 1 et. seq.) notwithstanding any different or contrary
provision of state law. The official text of this Agreement and any Appendix or
any notice given or accounts or statements required by this Agreement shall be
in English. In the event of any dispute concerning the construction or meaning
of this Agreement, reference shall be made only to this Agreement as written in
English and not to any other translation into any other language.
7.3. Dispute Resolution. If a dispute arises between the parties hereto
arising out of or in relation to this Agreement, the parties shall use all
reasonable efforts to resolve the dispute through good faith discussions. The
senior management of each of PMSI and Teijin commits itself to respond promptly
to any such dispute. In the event that PMSI and Teijin are unable, after
exerting all reasonable efforts, to resolve the said dispute, the said dispute
shall be finally settled through binding arbitration on the following basis:
10.
(a) The arbitration shall be conducted by a panel of three (3)
arbitrators under the International Arbitration Rules of the American
Arbitration Association then in force, by which each of PMSI and Teijin agrees
to be bound. Within thirty (30) days after notice of arbitration has been given,
each of PMSI and Teijin shall appoint one (1) arbitrator. The arbitrators
appointed by the parties shall then appoint a third arbitrator, who shall serve
as the presiding arbitrator.
(b) If demand for arbitration is made by Teijin, the place of
arbitration shall be Boston, Massachusetts, U.S.A., and if demand for
arbitration is made by PMSI, the place of arbitration shall be Tokyo, Japan.
(C) The language to be used in the arbitration shall be
English.
(d) Any arbitrator may be of any nationality, and need not be
a lawyer or hold any other professional status or membership .
(e) The arbitral award shall be rendered in writing, shall
state the reasons for the award, and shall be final and binding upon the parties
hereto. In no event shall the arbitral award include a sum of punitive damages.
(f) Judgment upon any award may be entered by any court of
competent jurisdiction, or application may be made to such a court for judicial
acceptance of the award and any appropriate order including enforcement.
(g) Each of PMSI and Teijin shall bear its own expenses and
attorneys' fees in connection with the arbitration.
7.4. 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 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 PMSI, to:
Polygen Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇.▇.
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
11.
if to Teijin, to:
Teijin Limited
Iino ▇▇▇▇▇▇▇▇
▇-▇, ▇▇▇▇▇▇▇▇▇▇-▇▇▇ ▇-▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Manager
Information System Development Department
7.5. 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.
7.6. Export Administration. Teijin hereby acknowledges and agrees that
it will not export or permit or cause the export of any of the Programs, related
documentation or technical data (which includes, among other things, any
technical information relating to the Programs, written or otherwise), or any
product incorporating any Program, related documentation or PMSI technical data,
except to its Authorized Subsidiaries as expressly permitted under Section 1.1
of this Agreement, and will otherwise comply with applicable export
administration regulations of the U.S. Department of Commerce and other United
States government regulations pertaining to the export of technical data and
equipment and products produced therefrom. Teijin agrees to notify each of its
Authorized Subsidiaries of all export administration regulations applicable to
the Programs, related documentation and technical data, and to cause each such
Authorized Subsidiary to comply with such regulations.
7.7. Entire Agreement. This Agreement, together with the Appendix
attached hereto, 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 Programs, the services
specified herein, and the licensing and providing of same under this Agreement.
This Agreement may not be modified or amended except in a writing signed by a
duly authorized representative of each party hereto.
7.8. 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 PMSI's assets, or its business (by merger or otherwise), or
any similar transfer by PMSI, 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-
12.
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.
7.9. 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.
7.10. Survival. The provisions of Sections 3.4, 3.5 and 7.1 shall
survive the termination of this Agreement.
7.11. Parties Advised by Counsel - No Interpretation Against Drafter.
This Agreement has been negotiated between unrelated parties who are
sophisticated and knowledgeable in the matters contained in this Agreement and
who have acted in their own self interest. In addition, each party has been
represented by legal counsel. Accordingly, any rule of law, including Section
1654 of the California Civil Code, as well as any other statute, law, ordinance,
or common law principles or other authority of any jurisdiction of similar
effect, or legal decision that would require interpretation of any ambiguities
in this Agreement against the party who has drafted it is not applicable and is
hereby waived. The provisions of this Agreement shall be interpreted in a
reasonable manner to effect the purpose of the parties, and this Agreement shall
not be interpreted or construed against the party to this Agreement because that
party or any attorney or representative for that party drafted this Agreement or
participated in the drafting of this Agreement.
13.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement
to be signed and delivered by its duly authorized representative as of the date
first set forth above.
POLYGEN CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
TEIJIN LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Title: President and
------------------------
Chief Executive Officer
------------------------
14.
APPENDIX A
PMSI JAPANESE PRICE LIST
A. MSI PROGRAMS:
License Fee:
Y428,241,000
B. POLYGEN PROGRAMS:
License Fee:
Y170,625,000
TOTAL AMOUNT: Y598,866,000
15.
APPENDIX A: PMSI JAPANESE PRICE LIST
Prices are valid only when purchased with hardware Page 1 of 9
POLYGEN/MOLECULAR SIMULATIONS
MOLECULAR MODELING PRODUCTS PRICE LIST
PRICING SUMMARY
JAPAN END-USER BUNDLED PRICE LIST
EFFECTIVE JANUARY 01, 1992
PRICES ARE VALID ONLY WHEN PURCHASED WITH HARDWARE
Prices include software and documentation, but do not include
hardware, installation, training, or continuing license fees.
SYSTEM SOFTWARE DESKTOP
Part Number Description Revision Availability Commercial Academic ▇▇▇. SU
-----------------------------------------------------------------------------------------------------------------------
XGBEXX BIOGRAF (Indigo) 2.2 Now Y 5,250,000 Y2,265,000 4320
XGNMEXX NMRgraf (Indigo) 2.2 Now Y 3,500,000 Y1,750,000 2880
POLEXX Polaris (Indigo) 3.0 Now Y 2,625,000 Y1,312,500 2160
XGPGEXX POLYGRAF (Indigo) 2.2 Now Y 7,000,000 Y3,500,000 5760
QNTXX QUANTA (Indigo) 3.2 Now Y 3,750,000 Y1,875,000 3600 P
QINORGXX Inorganic Solids Modeling 3.2 Now Y 3,750,000 Y1,875,000 2550 P
QPOLYXX Polymer Dynamics 3.2 Now Y 3,750,000 Y1,875,000 2550 P
QPROTXX Protein Modeling 3.2 Now Y 3,750,000 Y1,875,000 2550 P
QSTARXX X-Ray Structure Analysis 3.2 Now Y 3,750,000 Y1,875,000 2550 P
NOTE: If QUANTA is purchased, at least one copy of networked CHARMm
must be available for use.
SYSTEM SOFTWARE PERSONAL
Part Number Description Revision Availability Commercial Academic ▇▇▇. SU
-----------------------------------------------------------------------------------------------------------------------
XGBEXX BIOGRAF (SGI/IBM) 2.2 Now Y 7,000,000 Y3,500,000 5760
XGNMEXX NMRgraf (SGI/IBM) 2.2 Now Y 5,250,000 Y2,625,000 4320
POLEXX Polaris (SGI) 3.0 Now Y 4,375,000 Y2,187,500 3600
XGPGEXX POLYGRAF (SGI/IBM) 2.2 Now Y10,500,000 Y5,250,000 8640
QNTXX QUANTA (SGI/IBM) 3.2 Now Y 6,240,000 Y3,120,000 6000 P
QINORGXX Inorganic Solids Modeling 3.2 Now Y 4,992,000 Y2,496,000 3400 P
QPOLYXX Polymer Dynamics 3.2 Now Y 4,992,000 Y2,496,000 3400 P
QPROTXX Protein Modeling 3.2 Now Y 4,992,000 Y2,496,000 3400 P
QSTARXX X-Ray Structure Analysis 3.2 Now Y 4,992,000 Y2,496,000 3400 P
NOTE: If QUANTA is purchased, at least one copy of networked CHARMm must
be available for use.
NOTE: Items marked with a "P" are Polygen products; all others are
MSI products.
--------------------------------------
PRICE PER SERVICE UNIT (SU)
--------------------------------------
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇
Commercial Y220 Y265
Academic Y 35 Y105
Proprietary and Confidential Polygen/Molecular Simulations Japan Price List
January 27, 1992
Page 2 of 9 Prices are valid only when purchased with hardware
SYSTEM SOFTWARE PROFESSIONAL/POWER
Part Number Description Revision Availability Commercial Academic ▇▇▇. SU
---------------------------------------------------------------------------------------------------------------
XGBHXX BIOGRAF(SGI/IBM) 2.2 Now Yen10,500,000 Yen5,250,000 8640
XGNMHXX NMRgraf(SGI/IBM) 2.2 Now Yen 8,750,000 Yen4,375,000 7200
POLHXX. Polaris (Stardent/SGI) 3.0 Now Yen 6,125,000 Yen3,062,500 5040
XGPGHXX POLYGRAF(SGI/IBM) 2.2 Now Yen15,750,000 Yen7,875,000 12960
QNTXX QUANTA(SGI/IBM) 3.2 Now Yen 6,240,000 Yen3,120,000 6000P
QINORGXX Inorganic Solids Modeling 3.2 Now Yen 4,992,000 Yen2,496,000 3400P
QPOLYXX. Polymer Dynamics 3.2 Now Yen 4,992,000 Yen2,496,000 3400P
QPROTXX. Protein Modeling 3.2 Now Yen 4,992,000 Yen2,496,000 3400P
QSTARXX. X-Ray Structure Analysis 3.2 Now Yen 4,992,000 Yen2,496,000 3400P
Note: If QUANTA is purchased, at least one copy of networked CHARMm must be
available for use.
QUANTA OPTIONS SGI/IBM
Part Number Description Revision Availability Commercial Academic ▇▇▇. SU
---------------------------------------------------------------------------------------------------------------
QBDSXX Brownian Dynamics Sim 3.2 Now Yen2,500,000 Yen1,250,000 1705P
NOTE: Purchase of Brownian
Dynamics requires purchase
of UHBD.
QCRYSTXX Crystal Modeling 3.2 Now 2,125,000 Yen1,062,500 1450P
QHELIXXX Helix Modeling 3.2 Now 2,125,000 Yen1,062,500 1450P
▇▇▇▇▇▇ ▇▇▇ Interface 3.2 Now 1,250,000 Yen 625,000 850P
QPBEXX Poisson-Boltzmann Electro 3.2 Now 2,125,000 Yen1,062,500 1450P
Note: Purchase of ▇▇▇▇▇▇▇-
▇▇▇▇▇▇▇ Electrostatics
requires purchase of UHBD
QOPINTXX QUANTA Open Interface 3.2 Now Yen5,000,000 Yen2,500,000 3410P
QQMIXX Quantum Mechanics Interface 3.2 Now Yen2,500,000 Yen1,250,000 1705P
QNMRSXX NMR Structure 3.2 Dec, 1991 Yen4,992,000 Yen2,496,000 2400P
QUANTA NMR SOFTWARE SGI/IBM
Part Number Description Revision Availability Commercial Academic ▇▇▇. SU
---------------------------------------------------------------------------------------------------------------
QMADXX MADNMR x Now Yen3,750,000 Yen1,825,000 2555P
QMADPXX MADNMR+ x Now Yen6,250,000 Yen3,125,000 4260P
QDISNOEXX DISCON/NOESYSIM x Now Yen2,500,000 Yen1,250,000 1705P
------------------------------------
PRICE PER SERVICE UNIT (SU)
------------------------------------
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Academic Yen 35 Yen105
Polygen/Molecular Simulations Japan Price List
January 27, 1992 Proprietary and Confidential
Prices are valid only when purchased with hardware Page 3 of 9
CERIUS SOFTWARE SGI/IBM
Part Number Description Revision Availability Commercial Academic ▇▇▇. SU
-----------------------------------------------------------------------------------------------------------------------
Builder Modules
CSVSXX Visualizer (required for all) 2.3 Now Y 437,500 Y 218,750 400
CSCRXX Crystals 2.3 Now Y1,312,500 Y 656,250 1200
CSCLRXX Surfaces 2.3 Mar., 1992 Y 437,500 Y 218,750 400
CSINTXX Interfaces 3.0 Mar., 1992 Y 437,500 Y 218,750 400
CSPLXX Polymers 2.3 Now Y 437,500 Y 218,750 400
Calculation Modules
CSOF1XX Open Force Field MM/MD (1) 3.0 Mar., 1992 Y6,562,500 Y3,281,500 6000
CSOF2XX Open Force Field MM/MD (2) 3.0 Mar., 1992 ▇▇▇ ▇▇▇ TBD
CSSRPXX Sorption 2.3 Now Y2,187,500 Y1,093,750 2000
CSPCKXX ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 2.3 Now Y1,312,500 Y 656,250 1200
CSMPXX MopacUI 2.3 Now Y 875,000 Y 437,500 800
CSSMXX Statmech 2.3 Now Y2,625,000 Y1,312,500 2400
CSDLSXX DLS-UI 2.3 Now Y1,093,750 Y 546,875 1000
CSDF1XX Diffraction I 2.3 Now Y2,625,000 Y1,312,500 2400
CSDF2XX Diffraction II 2.3 Now Y1,750,000 Y 875,000 1600
CSDF3XX Diffraction III 2.3 Now Y1,093,750 Y 546,875 1000
CSDF4XX Diffraction IV 2.3 Now Y2,625,000 Y1,312,500 2400
CSRTVXX Rietveld 3.0 Mar., 1992 Y1,750,000 Y 875,000 1600
CSHRXX. HRTEM 2.3 Now Y2,625,000 Y1,312,500 2400
NOTE: PRICES INCLUDE FIRST YEAR MAINTENANCE
NOTE: DLS-UI, Sorption, Diffraction I, Diffraction III, HRTEM, Surfaces,
Interfaces, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and ▇▇▇▇▇▇▇▇ require CERIUS Crystals.
NOTE: StatMech requires CERIUS Polymers.
NOTE: When quoting Open Force Field MM/MD, all Builder Modules should be
included in the quote.
NOTE: Open Force Field MM/MD (1) is for Desktop and Personal/Entry
machines only. Open Force Field MM/MD (2) is for Professional
and Power machine only.
AVS CHEMISTRYVIEWER ALL PLATFORMS
Part Number Description Revision Availability Commercial Academic ▇▇▇. SU
-----------------------------------------------------------------------------------------------------------------------
ChemistryViewer alone Y1,312,500 Y656,250 720
ChemistryViewer with AVS Y1,750,000 Y875,000 1440
NOTE: First year maintenance is required with AVS and ChemistryViewer
-------------------------------------
PRICE PER SERVICE UNIT (SU)
-------------------------------------
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇
Commercial Y220 Y265
Academic Y 35 Y105
Proprietary and Confidential Polygen/Molecular Simulations Japan Price List
January 27, 1992
Page 4 of 9 Prices are valid only when purchase with hardware
CHARMm ALL PLATFORMS
Part Number Description Revision Availability Commercial Academic ▇▇▇. SU
-------------------------------------------------------------------------------------------------------------------------------
CDESKXX Desktop CHARMm 21.3 Now Yen 3,750,000* Yen1,875,000* 2550P
CPERSXX Personal CHARMm 21.3 Now Yen 5,990,000* Yen2,995,000* 4085P
CPROFXX Professional CHARMm 21.3 Now Yen10,500,000* Yen5,250,000* 7160P
CPARLXX Power CHARMm 21.3 Now Yen18,000,000* Yen9,000,000* 12270P
NOTE: At least one copy of networked CHARMm
must be available for use. Above prices (*)
effective only at time of purchase with QUANTA
and include standard discounts. For individual
CHARMm pricing, see pricing below.
NOTE: Desktop CHARMm is only available for the
SGI Indigo.
CPERSXX Personal Stand-alone CHARMm 21.3 Now Yen11,980,000 Yen 5,990,000 8165P
CPROFXX Professional Stand-alone CHARMm 21.3 Now Yen15,000,000 Yen 7,500,000 10225P
CPARLXX Power Batch stand-alone CHARMm 21.3 Now Yen22,500,000 Yen11,250,000 15340P
CSUPRXX Super Stand-alone CHARMm 21.3 Now Yen55,000,000 Yen27,500,000 37500P
CSUPRLXX Ltd. License Super CHARMm 21.3 Now Yen33,000,000 Yen16,500,000 22500P
CSRCXX CHARMm Source Code 21.3 Now Yen12,500,000 Yen 6,250,000 8520P
NOTE: CHARMm source code may only be purchased in addition to a
standard CHARMm object license.
X-PLOR ALL PLATFORMS
Part Number Description Revision Availability Commercial Academic ▇▇▇. SU
--------------------------------------------------------------------------------------------------------------------------
XPERSXX Personal X-PLOR 2.11 Now Yen 7,488,000 Yen 3,744,000 5105P
XPROFXX Professional X-PLOR 2.11 Now Yen11,000,000 Yen 5,500,000 7500P
XPARLXX Power X-PLOR 2.11 Now Yen16,000,000 Yen 8,000,000 10900P
XSUPRXX Super X-PLOR 2.11 Now Yen33,500,000 Yen16,750,000 22840P
XSUPRLXX Ltd. License Super X-PLOR 2.11 Now Yen19,500,000 Yen 9,750,000 13295P
XSRCXX X-PLOR Source code 2.11 Now Yen12,500,000 Yen 6,250,000 8520P
NOTE: X-PLOR source code may only be purchased
in addition to a standard X-PLOR object license.
UHBD ALL PLATFORMS
Part Number Description Revision Availability Commercial Academic ▇▇▇. SU
---------------------------------------------------------------------------------------------------------------
UPERSXX Personal UHBD 2.2 Now Yen10,000,000 Yen5,000,000 6820P
UPROFXX Professional UHBD 2.2 Now Yen11,250,000 Yen5,625,000 7670P
UPARLXX Power UHBD 2.2 Now Yen12,500,000 Yen6,250,000 8520P
▇▇▇▇ BATCH ALL PLATFORMS
Part Number Description Revision Availability Commercial Academic ▇▇▇. SU
---------------------------------------------------------------------------------------------------------------
GRAFBXX Alliant version Now Yen10,500,000 Yen5,250,000 8640
GRAFBXX DEC version Now Yen 8,750,000 Yen4,375,000 7200
GRAFBXX Convex version Now Yen14,000,000 Yen7,000,000 11520
GRAFBXX Cray version Now Yen17,500,000 Yen8,750,000 14400
Polygen/Molecular Simulations Japan Price List
January 27, 1992 Proprietary and Confidential
Prices are valid only when purchased with hardware Page 5 of 9
POLYGEN/MOLECULAR SIMULATIONS
MOLECULAR MODELING PRODUCTS PRICE LIST
HARDWARE CONFIGURATION SUMMARY
EFFECTIVE OCTOBER 01, 1991
SILICON GRAPHICS IRIS 4D SERIES
Machine Category MFLOPS MIPS Memory Disk(1) Tape 0/S Other
-----------------------------------------------------------------------------------------------------------------------------
Indigo Desktop xx xx 16 432/54 1/4" cartridge 4.0.0 Note 2
4D/25 G/TG Personal/Entry xx xx 16 380/54 1/4" cartridge 3.3.3 Note 2
4D/35 G/TG Personal/Entry xx xx 16 380/54 1/4" cartridge 3.3.3 Note 2
4D/310 GTX/VGX Professional/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/320 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/340 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/380 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/420 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/440 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/480 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
IBM RISC SYSTEM/6000 SERIES
Machine Category MFLOPS MIPS Memory Disk (1) Tape O/S Other
-----------------------------------------------------------------------------------------------------------------------------
Series 320 Personal/Entry xx xx 16 320/54 1/4" cartridge .3.1.5 Notes 2,3
Series 520 Professional/Entry xx xx 16 320/54 1/4" cartridge .3.1.5 Notes 2,3
Series 530 Professional/Entry xx xx 16 320/54 1/4" cartridge .3.1.5 Notes 2,3
Series 540 Power/High-End xx xx 16 320/54 1/4" cartridge .3.1.5 Notes 2,3
Series 550 Power/High-End xx xx 16 320/54 1/4" cartridge .3.1.5 Notes 2,3
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ ESV SERIES
Machine Category MFLOPS MIPS Memory Disk (1) Tape O/S Other
-----------------------------------------------------------------------------------------------------------------------------
ESV-5 Entry 4.0 xx xx/xx xx xx
All others High-End 4.0 xx xx/xx xx xx
Proprietary and Confidential Polygen/Molecular Simulations Japan Price List
January 27, 1992
Page 6 of 9 Prices are valid only when purchased with hardware
BATCH PROCESSORS
Machine Category MFLOPS MIPS Memory Disk (1) Tape O/S Other
-------------------------------------------------------------------------------------------------------------
Alliant FX40,80 Power/Batch xx xx xx xx 8 mm cartridge 2.1.02
Alliant FX2800 Power/Batch xx xx xx xx 8 mm cartridge 2.1.02
Convex C-1 Power/Batch xx xx xx xx Reel-to-reel xx Note 4
Convex C-2 Power/Batch xx xx xx xx Reel-to-reel xx
Cray X, Y-MP Super/Batch xx xx xx xx Reel-to-reel .6.0
Cray 2 Super/Batch xx xx xx xx Reel-to-reel .6.0
DEC Batch xx xx xx xx Reel-to-reel xx Note 4
IBM 3090 MVS Super xx xx xx xx Reel-to-reel xx Note 5
IBM 3090 VM Super xx xx xx xx Reel-to-reel xx Note 5
IBM 3090 AIX Super xx xx xx xx Reel-to-reel xx Note 5
HARDWARE NOTES
1. Under the Disk column, the first number is the minimum total disk space
required while the second number is the minimum swap space required.
2. FORTRAN is required for the QUANTA Open Interface.
3. The following IBM RS/6000 hardware configuration is required for
QUANTA/CHARMm software: 24-bit 3D graphics, 24-bit Z-buffer, Ethernet
LAN adaptor, and the FORTRAN 2.01 run-time libraries (xlfrte 02.01).
4. CHARMm, X-PLOR, and UHBD are not supported on the Convex C-1.
5. ▇▇▇▇ Batch is not supported on the IBM 3090.
PART NUMBERS
Replace XX in all software part numbers with the following machine codes:
4D All SGI 4D series except Indigo DT SGI Indigo ST Stardent Titan
ES E&S ESV RS All IBM RS/6000 series
FX Alliant C1 Convex C-1 C2 Convex C-2
CX Cray X-MP ▇▇ ▇▇▇▇ Y-MP ▇▇ ▇▇▇▇ 2
MV IBM 3090 MVS VM IBM 3090 VM/CMS AX IBM 3090 AIX
VS DEC VMS
January 27, 1992 Polygen/Molecular Simulations Japan Price List
Proprietary and Confidential
Prices are valid only when purchased with hardware Page 7 of 9
CONTINUING LICENSE/MAINTENANCE
Part Number Description Academic Price/S.U. COMMERCIAL PRICE/S.U.
---------------------------------------------------------------------------------------------------------------
SL1SS ▇▇▇▇▇ ▇ (Standard Support Y35 Y220
Provides the following services:
Continuing license fee
Upgrade of existing software
Hotline support of products: Calls returned
within 4 hours of receipt
SL2SS ▇▇▇▇▇ ▇ (Scientific Support) Y105 Y265
Provides the following services:
Continuing license fee
Upgrade of existing software
Hotline support of products: Calls returned
within 1 hour of receipt
Monthly status calls from senior scientific
staff members
Monthly report of software problems
Scientific support for modeling problems
SCIENTIFIC PROGRAMS
Part Number Description Cost/Time Period
---------------------------------------------------------------------------------------------------------------
SSCON Scientific Consulting Y175,000 per day
SPMDL Molecular Design Lab Y700,000 per week
Seat in Introductory Molecular Modeling Course
Use of software on a dedicated machine
Access to Polygen and Harvard scientists
NOTE: A minimum of two weeks is required.
TRAINING PROGRAMS
Part Number Description Cost/Time Period
---------------------------------------------------------------------------------------------------------------
Introductory Molecular Modeling Y175,000/3 days
Advanced CHARMm Y262,500/2 days
Advanced Protein Modeling Y262,500/2 days
Advanced Polymer Modeling Y262,500/2 days
Polygen/Molecular Simulations Japan Price List
Proprietary and Confidential January 27, 1992
Page 8 of 9 Prices are valid only when purchased with hardware
POLYGEN/MOLECULAR SIMULATIONS
MOLECULAR MODELING SOFTWARE PRODUCTS
POLICIES AND PROCEDURES
EFFECTIVE JANUARY 01, 1992
TITLE
All right, title and interest in and to the software licensed and any related
documentation and any copies thereof which may be made by licensee are and shall
remain the exclusive property of licensor or licensor's licensor, as to software
sublicensed by licensor to licensee; licensor and its licensors are collected
referred to as the software owners. Any third party software designated in the
applicable price list as subject to a separate license agreement is subject to
the terms of the agreement accompanying such software. Each software owner shall
have the right to enforce this agreement against licensee as to such software
owner's software.
SOFTWARE LICENSE FEES
Use of the software by licensee shall be subject to the licensee signing the
Polygen/Molecular Simulations Standard Software License Agreement.
UNBUNDLED FEE
In the instance where software is not purchased with hardware, the software list
price shall be increased by an additional amount equal to twenty percent (20%)
of such software list price (the unbundled fee).
PAYMENT TERMS
Unless otherwise arranged, Polygen/Molecular Simulations will invoice purchaser
at the time of shipment of each installment on payment terms of each on
delivery, except where open account credit is established and maintained to
Polygen/Molecular Simulations' satisfaction, in which case payment terms shall
be net 30 days from date of shipment. Purchaser shall make all payments as
provided without regard to whether purchaser has made or may make any inspection
or use of any goods delivered. Any invoiced amount which is not paid when due
shall bear interest at the rate of 2% per month or the highest rate then
permitted by law, whichever is less.
WARRANTY
The software as delivered and installed on the designated system will conform
substantially to licensor's then current published program specifications.
Licensee acknowledges, however, that the software is of such complexity that it
may have inherent or latent defects and agrees that as licensee's sole remedy
licensor will exercise its best efforts to correct documented program errors
which licensors's analysis indicates are caused by a defect in the unaltered
version of the delivered software as installed on an unaltered designated
system. Licensor does not guarantee the results of any such services or
represent or warrant that any such error will be corrected. The foregoing
warranty extends only to licensee and is not applicable to any transferee of the
software license.
LICENSE TRANSFER POLICY
All computers and software are expected to be written off over four years.
Customers will be able to transfer their current software license to a faster
computer (at the same site) and receive a credit equal to 25% of the lower of
the price actually paid or the current price for the license for each year left
in the four years since shipment to the customer by Polygen/Molecular
Simulations. To receive this credit, the customer must be cur-
Prices are valid only when purchased with hardware Page 9 of 9
rent on maintenance.
TERMS AND CONDITIONS
Software orders must be accompanied by the software quotation with standard
quote terms and conditions and a standard software license agreement. Loaners
must be accompanied by a standard software loaner agreement. Any software
purchase or loaner which does include the above documents or which documents
deviate from standard terms must be approved in advance.
QUOTE VALIDITY
Software quotes are valid for 30 days only.
SOFTWARE LOANER PERIOD
Unless otherwise arranged, software to commercial organizations may only be
loaned for a period of 15 days; software to academic institutions may only be
loaned for a period of 30 days.
Exhibit D-2
English Translation of Articles of Incorporation
CHAPTER I
GENERAL
Article 1 - Corporate Name
The name of the company shall be [Japanese Translation of Company Name]
("Company"). In English, the Company shall be called Teijin Molecular
Simulations Incorporated.
Article 2 - Purpose
The objects and purposes of the Company shall be as follows:
(1) to market, distribute, license, and sell software products;
(2) to sell computer hardware; and
(3) to engage in any other business related to or connected with
the activities described above.
Article 3 - Location of Principal Office
The Company shall have its principal office in Chiyoda-ku, Tokyo.
Article 4 - Method of Public Notice
All public notices by the Company shall be published in the Japanese
Official Gazette.
CHAPTER II
SHARES
Article 5 - Number of Shares Authorized to be Issued and Their Par Value
The total number of shares authorized to be issued by the Company is
sixteen thousand (16,000) shares, having a par value of fifty thousand yen
(Y50,000) per share.
Article 6 - Types of Shares
The Company may issue one type of shares, Common Shares.
Article 7 - Preemptive Rights
Upon issuance by the Company of any of its unissued authorized shares,
the holders of the existing Common Shares
1
shall have the preemptive right to acquire such number of the newly issued
shares as shall be consistent with their respective proportionate ownership
interest in the Company.
Article 8 - Voting Rights
Except as otherwise provided by law, each Common Share issued and
outstanding shall have one vote.
Article 9 - Types of Share Certificates
All share certificates shall be issued in denominations of one (1), ten
(10), one hundred (100), and one thousand (1,000) shares.
Article 10 - Restriction on Transfer of Shares
Any transfer of Common Shares is subject to consent of the Company's
Board of Directors.
Article 11 - Registration of Shareholders
1. Shareholders (including trustees) and holders of pledges of shares,
or their legal representatives, shall register their names, addresses and seal
impressions on forms provided by the Company.
2. Any changes or alterations of any of the foregoing shall likewise be
registered.
3. Foreign nationals who are not accustomed to impressing their seals
may use their signatures for the above purpose.
Article 12 - Suspension of Shareholders' Registration
1. Entries in the Shareholders' Register will be suspended from the day
following the last day of each business year until the close of the ordinary
general meeting of shareholders pertaining to said business year.
2. In addition to the case provided for in the preceding paragraph,
temporary suspension of any new entry in the Shareholders' Register may be
effected by a resolution of the Board of Directors, when necessary, for a period
not exceeding three (3) months by giving not less than two (2) weeks prior
public notice thereof.
CHAPTER III
GENERAL MEETINGS OF SHAREHOLDERS
Article 13 - Convening of General Meetings of Shareholders
2
1. An ordinary general meeting of shareholders shall be convened within
three (3) months after the close of each business year.
2. An extraordinary general meeting of shareholders may be convened
whenever necessary.
Article 14 - Authority to Convene General Meetings of
Shareholders
Except as otherwise provided by law, general meetings of shareholders
shall be convened by the President of the Company in accordance with a
resolution of the Board of Directors; and if the President is unable to convene
a general meeting of shareholders; another director of the Company, according to
the order previously determined by the Board of Directors, may convene the
meeting.
Article 15 - Location of General Meetings of Shareholders
General meetings of shareholders of the Company shall be held at the
place where principal office of the Company is located.
Article 16 - Notice of General Meetings of Shareholders
1. Notice of the convening of a general meeting of shareholders shall
be dispatched to each shareholder listed in the Shareholders' Register not less
than two (2) weeks prior to the date of such meeting.
2. The period of notice may be shortened or dispensed with for a
particular meeting by the unanimous consent of the shareholders listed in the
Shareholders' Register if all of the shareholders listed in the Shareholders'
Register are present at the meeting and waive the notice requirement.
3. The notice shall set forth the agenda of the meeting.
4. Any such notice shall be in both English and Japanese.
Article 17 - Person to Preside at General Meetings of
Shareholders
The President of the Company shall preside as chairman at all general
meetings of shareholders; and if the President is unable to preside at a general
meeting, a director, according to the order previously determined by the Board
of Directors, may preside at the general meeting.
Article 18 - Resolutions of General Meetings of Shareholders
Except as otherwise provided by law or these Articles of
Incorporation, resolutions of general meetings of shareholders
3
shall be adopted by the affirmative vote of a majority of the voting shares
which are present or represented at general meetings of shareholders at which
shareholders owning a majority of all the issued and outstanding shares entitled
to vote are present or are represented by proxy.
Article 19 - Proxy Voting
1. A shareholder may exercise his vote by proxy.
2. The proxyholder need not be a shareholder, but he shall present to
the Company for each general meeting attended a document of proxy evidencing his
appointment as proxy.
Article 20 - Minutes of General Meetings of Shareholders
Minutes of all general meetings of shareholders of the
Company shall be prepared and shall be verified by the printed names and seals
or the signatures of the chairman and all the directors present, and all such
minutes shall be preserved for ten (10) years at the principal office of the
Company and a copy thereof for five (5) years at each branch office of the
Company.
Article 21 - Compensation of Directors and Statutory Auditors
Compensation, if any, of directors and statutory auditors shall be
separately determined by a resolution of a general meeting of shareholders.
CHAPTER IV
DIRECTORS AND BOARD OF DIRECTORS
Article 22 - Number of Directors
The Company shall have three (3) or more directors.
Article 23 - Election of Directors; No Cumulative Voting
All directors shall be elected by a general meeting of shareholders at
which a quorum of shareholders is present as described in Article 18 hereof.
Cumulative voting shall not apply in the election of directors.
Article 24 - Terms of Office of Directors
1. The term of office of a director shall be until the close of the
ordinary general meeting of shareholders concerning the last settlement of
accounts occurring within two (2) years after his assumption of office.
2. The term of office of a director elected to fill a vacancy or
elected due to an increase in the number of directors shall be concurrent with
the term of office of the directors in office at that time.
4
Article 25 - Board of Directors
The Board of Directors shall decide such matters as are required by law
or by these Articles of Incorporation.
Article 26 - Authority to Convene Meetings of the Board of Directors
Meetings of the Board of Directors shall be convened by the President
of the Company; and if the President is unable or unwilling to convene a
meeting of the Board of Directors, another director of the Company, according to
the order previously determined by the Board of Directors, may convene the
meeting.
Article 27 - Notice of Meetings of the Board of Directors
1. A notice in Japanese and English convening a meeting of the Board of
Directors shall be dispatched to each director and statutory auditor at least
twenty (20) days prior to the date of such meeting.
2. Notice may be shortened or dispensed with by the unanimous written
consent of all the directors and the statutory auditors.
Article 28 - Person to Preside at Meetings of the Board of Directors
The Chairman of the Board of Directors shall preside at all meetings of
the Board of Directors, and if the Chairman is unable to preside at a meeting,
another director, according to the order previously determined by the Board of
Directors, may preside at the meeting.
Article 29 - Representative Directors
1. The Board of Directors shall elect one (1) or more representative
directors from among the members of the Board of Directors.
2. The Board of Directors shall elect a President, who shall be a
representative director, from among its members.
Article 30 - Resolutions of Meetings of the Board of Directors
Except as otherwise provided by law or by these Articles of
Incorporation, resolutions of the Board of Directors shall be adopted by the
affirmative vote of a majority of all the directors present at the meeting, who
shall constitute in number a majority of the directors.
Article 31 - Minutes of Meetings of the Board of Directors
Minutes of all meetings of the Board of Directors shall be prepared and
shall be verified by the printed names and
5
seals or by the signatures of the chairman and all the directors present and the
statutory auditors, if present, and all such minutes shall be preserved at the
principal office of the Company for ten (10) years.
CHAPTER V
STATUTORY AUDITOR
Article 32 - Number of Statutory Auditors and Method of Election
1. The Company shall have one (1) statutory auditor.
2. The statutory auditor shall be elected at a general meeting of
shareholders at which a quorum of shareholders is present as described in
Article 18 hereof.
Article 33 - Term of Office of the Statutory Auditor
The term of office of the statutory auditor shall be until the close of
the ordinary general meeting of shareholders concerning the last settlement of
accounts occurring within two (2) years after his assumption of office.
CHAPTER VI
ACCOUNTING
Article 34 - Business Year
The business year of the Company shall commence on the first day of
April of each year and end on the last day of March of the next year.
Article 35 - Pavement of Dividends
1. Dividends shall be paid to shareholders of record (including
registered pledgees) as of the last day of the business year for which the
dividends are declared. Dividends shall not yield interest.
2. If three (3) full years have passed without a dividend having been
received by a particular shareholder after a particular dividend payment date,
the Company shall be released from its obligation to effect such payment.
CHAPTER VII
SUPPLEMENTARY PROVISIONS
Article 36 - Number of Shares to be Issued at Time of Incorporation
The total number of shares to be issued at the time of incorporation of
the Company shall be four thousand (4,000)
6
Common Shares having a par value of fifty thousand yen (Y50,000) per share and
an issue price of fifty thousand Yen (Y50,000) per share.
Article 37 - Initial Term of Office
Notwithstanding the provisions of Article 24 and 33, the term of office
of the initial directors and statutory auditor shall be until the close of the
ordinary general meeting of shareholders concerning the last settlement of
accounts occurring within one (1) year after their assumption of office.
Article 38 - First Business Year
The first business year of the Company shall be from the date of
incorporation of the Company to the last day of March, 1992.
Article 39 - Names and Addresses of the Promoter and Number of Shares to be
Subscribed
The names and addresses of the promoters of the Company and the number
of shares subscribed are as follows:
Name Address Number of Shares
---- ------- ----------------
Teijin Limited 6-7, Minamihommachi 1-chome, 2,000
▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇
Representative Director
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
In order to establish [Japanese Translation of Company Name]
(Teijin Molecular Simulations Incorporated) and in witness whereof, the
above-named promoter has executed these Articles of Incorporation.
Dated: February 14, 1992
Promoter: Teijin Limited
Representative Director
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
7