Exhibit 10.4
THIRD AMENDMENT TO OEM LICENSE AGREEMENT
This Third Amendment to the OEM License Agreement (hereinafter referred to as the “Third Amendment”), effective as of December 1st, 2015, by and between THERMOANALYTICS, INC. (the “Company”) located at 23440 Airpark Boulevard, Calumet, Michigan 49913 and EXA CORPORATION, located at 55 Network Drive, Burlington, Massachusetts 01803 (the “Licensee”) (jointly referred to as the “Parties”; each separately as a “Party”), amends the OEM Licensee Agreement between the parties dated October 26th, 2006 (the “Agreement”) as previously amended on June 10, 2011 (the “First Amendment”) and February 1st, 2013 (the “Second Amendment”).
Except to the extent defined in this Third Amendment, the capitalized terms used herein are defined in the Agreement. Except as set forth in this Third Amendment, the Agreement as previously amended shall remain in full force and effect. In the event that there is a conflict between any provision of the Agreement and this Third Amendment, the conflicting terms set forth in this Third Amendment shall govern.
In consideration of the ongoing obligations set forth in the Agreement and the mutual covenants set forth in this Amendment, the Parties agree as follows:
| 1. | EXHIBIT C: The discount schedule table is replaced in its entirety as follows: |
Total Annual Revenues | Discount from List Price | |
Up to $** | **% | |
$** to $** | **% | |
Over $** | **% |
| 2. | EXHIBIT C1 is replaced in its entirety as follows: |
EXHIBIT C1
Nominal List Prices for PowerTHERM Products
Product | Nominal List Price | |
Annual Floating Client Application | $** | |
Annual Floating Client + Solver + Solids + Multigrid | $** | |
Annual Floating Parallel | $** | |
Annual Floating Unlimited Parallel | $** | |
Annual Floating Thermal Comfort | $** | |
Annual Floating Battery Cell | $** |
| ** | This material was omitted pursuant to a request for confidential treatment and was separately filed with the SEC on March 21, 2016. |
| 3. | EXHIBIT F is replaced in its entirety as follows: |
EXHIBIT F TO OEM LICENSE AGREEMENT
Company grants Licensee the right to market and sell Company’s Software Products and Product EUSS (Extended Update and Support Service) in the territories listed below:
Territory | Company Products | |
| Japan | TAITherm, TAIThermIR, Solids, Multigrid, Parallel, Human Thermal, Battery and other related Modules |
In Japan, Licensee is the exclusive distributor and may choose to market and sell the Derivative Product, PowerTHERM, instead of TAITherm.
If Licensee sells a multi-continent Company Product license, the standard discounted license fee may be reduced. Company will set the reduced percentage based on expected Software Product usage by customer location. Company and Licensee may review this percentage annually to adjust the percentage based on the prior year’s Company Product usage.
It is understood by the Parties that Section 2.3 of the agreement “Certain Restrictions on Commercial Sale of Licenses” does not apply to sales within territories covered by this Exhibit F.
Company may terminate the sales and marketing of Company Products covered by this Exhibit F in a territory with written notice to Licensee. Company will provide three (3) years written notice to Licensee before termination of a territory. During the termination period, Licensee may continue to sell Company Products and Product EUSS in the territory.
EACH OF COMPANY AND LICENSEE ACKNOWLEDGES HAVING READ THE TERMS AND CONDITIONS SET FORTH IN THIS THIRD AMENDMENT, UNDERSTANDS ALL TERMS AND CONDITIONS CONTAINED THEREIN, AND AGREES TO BE BOUND THEREBY.
| THERMOANALYTICS, INC. | EXA CORPORATION | |||
| BY: /s/ Craig Makens | BY: /s/ Richard F. Gilbody | |||
| NAME:Craig Makens | NAME:Richard F. Gilbody | |||
| TITLE:Vice President | TITLE:Chief Financial Officer | |||
| PHONE:906-482-9560 | PHONE:781-564-0220 | |||
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