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Exhibit 99.01
SOFTWARE LICENSE AGREEMENT
This SOFTWARE LICENSE AGREEMENT is made and entered into as of December
6, 1999 (the "Effective Date") by and among SalesLogix Corporation, a Delaware
corporation, with its principal offices located at 8800 N. Gainey Center Drive,
Suite 200, Scottsdale, Arizona 85258 ("SalesLogix"), and Symantec Corporation, a
Delaware corporation, with its principal offices located at 20330 Stevens Creek
Blvd., Cupertino, California 95014 ("Parent"), and Symantec Limited, a
wholly-owned limited liability company organized under the laws of Ireland, with
its principal offices located at Ballycoolin Business park, Blanchardstown,
Dublin 15, Ireland ("Subsidiary"). Parent and Subsidiary are collectively
referred to herein as "Symantec".
RECITALS
A. Symantec owns or has sufficient rights to certain proprietary
software products (consisting of programs and related
documentation) that Symantec distributes and licenses under
the name "ACT!(R)".
B. SalesLogix is in the business of developing, marketing and
distributing proprietary software products consisting of
programs and related documentation and related services.
C. Symantec and SalesLogix wish to enter into an agreement
providing, among other things, for SalesLogix to license, on
an exclusive basis, Symantec's ACT! product line and certain
related rights and Intellectual Property, with an option to
purchase the product line.
WHEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. GLOSSARY
1.1 "Act" means the Copyright Act of 1976, as amended.
1.2 "ACT! 2000" means the ACT! 2000 for Windows 95/98/NT.
1.3 "ACT! CE" means the ACT! 1.01 for Windows CE.
1.4 "ACT! for Mac" means the ACT! 2.8 for Macintosh.
1.5 "ACT! Pilot" means the ACT! 1.01 for Palm Pilot Link.
1.6 "Affiliate" means, with respect to any person or entity, any
other person or entity that directly or indirectly controls, is controlled by,
or is under common control with such person or entity, except that the term
"Affiliate" shall not be deemed to apply to officers and directors of a party
hereto acting in their own personal individual capacity
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and not for the benefit of or on behalf of a party hereto or such party,
subsidiaries or entity affiliates. For purposes of this provision, "control"
means, with respect to an entity, the ownership, directly or indirectly, of more
than 50% of the equity interest of such entity.
1.7 "Ancillary Agreements" means, collectively, the Transition
Agreement, the Derivative Products Escrow Agreement, the Purchase Escrow
Agreement, the Registration Rights Agreement (or alternatively, the Alternate
Investor Rights Agreement), and the Stockholder Agreement (as such terms are
defined herein).
1.8 "Anniversary Date" means the fourth (4th) Anniversary of the
Closing Date (as defined below).
1.9 "Assumed Contracts" means all support and upgrade insurance
contracts for the Licensed Products in effect on the Closing Date as described
on EXHIBIT C, plus those additional contracts designated as Assumed Contracts on
EXHIBIT C.
1.10 "Symantec Disclosure Letter" means the disclosure letter dated as
of the Effective Date, which is being delivered by Symantec to SalesLogix
concurrently with the execution of this Agreement as provided in Section 11.
1.11 A "business day" means a day, other than Saturday, Sunday or a day
on which banks located in San Francisco, California are closed for business due
to a federal or state holiday. If the day on which an act or event is scheduled
to occur under this Agreement shall not be a business day, then the same shall
be timely if it occurs on the next following business day.
1.12 "Closing" means consummation of the transfers and activities
contemplated by Section 3.1 of this Agreement in accordance therewith.
1.13 "Closing Date" means the date upon which the Closing has occurred
pursuant to Section 3.
1.14 "Code" means the U.S. Internal Revenue Code of 1986, as amended,
and the Treasury regulations (final and temporary) promulgated thereunder and
the administrative pronouncements issued by the Internal Revenue Service
relating thereto.
1.15 "Confidential Information" of a party hereto means all
confidential and proprietary information of such party marked as such (if such
information is capable of being so marked) not generally known to the public
regarding such party's products and business that are disclosed by such party
(the "Disclosing Party") to the other party (the "Non-Disclosing Party") under
this Agreement including, but not limited to, the Licensed Programs and the
Licensed Materials (as defined below). Confidential Information does not include
information (i) in the public domain at the time of delivery, (ii) subsequently
published or otherwise made part of the public domain through no fault of the
Non-Disclosing Party or of its representatives, (iii) rightfully in the
Non-Disclosing Party's
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possession at the time of disclosure and not acquired by the Non-Disclosing
party directly or indirectly from such Disclosing Party or its representatives
on a confidential basis, or (iv) which becomes available to the Non-Disclosing
Party on a non-confidential basis from a source that, to the best of its
knowledge, is not under an obligation to the Disclosing Party.
1.16 "Consolidated Revenue" means the combined revenues of SalesLogix
and the SalesLogix Group determined in accordance with GAAP.
1.17 "Deliverables" means (i) the Source Code to be delivered to
Symantec as provided herein, (ii) such other items as are specified in EXHIBIT
I, and (iii) such other items as are specified in the Transition Agreement.
1.18 "Derivative Products Escrow Agreement" means that certain
agreement to be entered into by and among SalesLogix, Symantec and DSI
Technology Escrow Services, Inc. ("DSI") on DSI's standard terms and conditions
to implement the escrow contemplated by Section 9.7 hereof.
1.19 "Derivative Work" means a work based upon, recast, transformed or
adapted from any of the Licensed Programs or Licensed Materials and includes any
revisions, customizations, enhancements, interfaces, annotations, elaborations,
or other additions or modifications made to any of the Licensed Programs or
Licensed Materials.
1.20 "Designated Persons" means those persons set forth in EXHIBIT S.
1.21 "Encumbrance" means any title defect, lien, mortgage, security
interest, pledge, charge, adverse claim, encumbrance or any other right of
others or other adverse interest of any kind, including without limitation
licenses, sublicenses, leases, chattel mortgages, conditional sales contracts,
collateral security arrangements and other title or interest retention
arrangements.
1.22 "End Products" means any SalesLogix products, materials or
offerings which include all of, any portion of, or any Derivative Work based on,
a Licensed Product.
1.23 "End User" means any person or entity that is granted a license by
or through SalesLogix, its Providers, its licensees, sublicensees or their
respective agents, pursuant to the authority granted under this Agreement, to
use an End Product solely for such End User's internal purposes and not for
further licensing to others.
1.24 "ERISA" means the U.S. Employee Retirement Income Security Act of
1974, as amended, and the rulings and regulations promulgated thereunder.
1.25 "GAAP" means United States generally accepted accounting
principles, as in effect from time to time, consistently applied.
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1.26 "HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended, and the rules and regulations thereunder.
1.27 "Intellectual Property" means all patents, patent applications,
trademarks (registered or unregistered) and trademark applications, and all
trademark rights and related goodwill, including but not limited to service
names, service marks, trade names and design marks (and any applications or
registrations therefor), trade secrets, corporate names, copyrights, copyright
registrations (and any applications therefor), reports, utility models,
proprietary data and systems, customer lists, pricing policies, customer
information, customer contact information, marketing plans and strategies,
promotional materials, analyses, forecasts, studies, research and development
data, data bases, manuals, documents, records, computer files, software
programs, data, plans, information, schematics, codes, methods, processes,
routines, algorithms, formulae, ideas, concepts, innovations, inventions, new
discoveries (including new machines, manufacturing methods, apparatuses,
compositions of matter, designs and improvements), know-how, rights of privacy
or publicity, any licenses for use of any of the foregoing, and any and all
other intellectual property, proprietary information and proprietary rights
related thereto, whether or not subject to statutory registration or protection.
1.28 "Licenses" means the licenses granted to SalesLogix pursuant to
Sections 2.1, 2.2 and 2.6 of this Agreement.
1.29 "Licensed Materials" means all of the user manuals, handbooks and
other related written materials developed by or for Symantec for use by End
Users of the Licensed Programs in conjunction with any Licensed Program or a
Derivative Work based on a Licensed Program.
1.30 "Licensed Products" means the Licensed Materials, the Licensed
Programs and the Shared Technology.
1.31 "Licensed Programs" means the proprietary computer software
programs of Symantec licensed under this Agreement, as described on EXHIBIT A,
each further consisting of a series of instructions in Source Code form (as
defined below) and the underlying program logic and concepts, together with all
related proprietary technology, Intellectual Property and intangible rights and
Derivative Works thereof; provided, however, that only the Source Code for the
most current version, as of the Closing Date, of each of the Licensed Programs,
excluding Source Code for any Third Party Software (to the extent Symantec
cannot provide such Source Code under its license agreements) and the Source
Code for the Shared Technology, shall be a Deliverable hereunder.
1.32 "Marks" means the registered and unregistered trademarks listed on
EXHIBIT B.
1.33 "Material Adverse Effect" when used with reference to a party
means any event, change or effect that is (or will with the passage of time be)
materially adverse to
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such party's condition (financial or otherwise), properties, assets,
liabilities, business, operations or results of operations.
1.34 "Object Code" means code, including Java byte code and applets,
resulting from the translation or processing of Source Code by a computer into a
machine language, and thus is in a form that would not be convenient to human
understanding of the program logic, but which is appropriate for execution or
interpretation by a computer.
1.35 "Other Transferred Assets" means the rights described on EXHIBIT
C.
1.36 "Providers" means all original equipment manufacturers,
independent software vendors, system houses, system integrators, value added
relicensors, distributors, dealers, and other entities engaged in doing business
with SalesLogix for the purposes of ultimate distribution, directly or
indirectly, of End Products to End Users.
1.37 "Purchase Escrow Agreement" means that certain agreement to be
entered into by and among SalesLogix, Symantec and Harris Trust Company of
California (the "Escrow Agent") in substantially the form of EXHIBIT K hereto.
1.38 "Retained Assets" means all assets of Symantec not listed on
Exhibits A, B, C and D, including (by way of example) but not limited to: (i)
the marketing, advertising and distribution channel assets of Symantec, whether
or not related to the Licensed Products; (ii) all Symantec's cash, bank accounts
and securities; (iii) all Symantec's accounts receivable, unbilled receivables,
notes and other amounts receivable from third parties; (iv) all insurance
policies of Symantec and all rights of Symantec of every nature and description
under or arising out of such insurance policies; (v) claims for refunds of Taxes
(as defined below) actually paid by Symantec prior to the Closing Date; and (vi)
all assets of, or held by or with respect to, any employee benefit plan (whether
or not governed by ERISA) or any trust, fund or account that is related to any
such employee benefit plan or that is similar in purpose or function thereto.
Notwithstanding the foregoing, if an asset fits within any of the categories
described in clauses (i) through (vi) above, but is included on Exhibit A, B, C
or D, such asset shall nonetheless be transferred to SalesLogix hereunder.
1.39 "Royalty Term" means the period from the Closing Date through the
Anniversary Date.
1.40 "Shared Technology" means the LiveUpdate and LiveReg software
programs as well as the other programs and technology listed on EXHIBIT G
hereto.
1.41 "Source Code" means a computer software program in a form in which
the program logic can be deduced by a human being, such as a printed listing of
the program, or in an encoded machine-readable form, such as might be recorded
on magnetic tape or disk, from which a printed listing can be made by processing
it with a computer.
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1.42 "SalesLogix Disclosure Letter" means the disclosure letter dated
as of the Effective Date which is being delivered by SalesLogix to Symantec
concurrently with the execution of this Agreement as provided in Section 12.
1.43 "SalesLogix Group" means any and all corporations, firms,
partnerships or other entities, whether de jure or de facto, that directly or
indirect own, are owned by or are under common ownership with SalesLogix to the
extent of at least 50 percent of the equity having the power to vote on or
direct the affairs of such entity and any corporation, firm, partnership or
other entity actually controlled by, controlling or under common control with
SalesLogix.
1.44 "Sublicensed Contracts" means those contracts designated as such
on EXHIBIT C.
1.45 "Subsidiaries" means any corporation in which a party hereto owns,
directly or indirectly, more than fifty percent (50%) of its outstanding shares.
1.46 "Tangible Assets" means the tangible assets listed on EXHIBIT D,
which shall be deemed to have the aggregate purchase price indicated on Exhibit
D.
1.47 "Tax" or "Taxes" means all taxes or similar governmental charge,
impost or levy of any kind whatsoever (whether payable directly or by
withholding), including without limitation, income taxes, gross receipts taxes,
franchise taxes, transfer taxes or fees, stamp taxes, sales taxes, use taxes,
excise taxes, ad valorem taxes, value added taxes, documentary taxes, intangible
personal property taxes, withholding taxes, real or personal property taxes,
employee withholding taxes, worker's compensation, payroll taxes, unemployment
insurance, social security, minimum taxes or windfall profits taxes, together
with any related liabilities, penalties, fines, additions to tax or interest,
imposed by the United States or any state, county, provincial, local or foreign
government or any instrumentality, subdivision or agency thereof.
1.48 "Third Party Software" means proprietary computer software
programs or other Intellectual Property rights, owned by third parties, licensed
to Symantec and incorporated in the Licensed Products. Third Party Software is
identified in EXHIBIT T, with EXHIBIT T-1 listing the Third Party Software that
Symantec is sublicensing to SalesLogix pursuant to Section 2.1(c) hereof (which
licenses are also listed on Exhibit C as Sublicensed Contracts), EXHIBIT T-2
listing the Third Party Software licenses that are being assigned by Symantec to
SalesLogix, if any (which licenses are also listed on Exhibit C as Assumed
Contracts), and EXHIBIT T-3 listing Third Party Software which Symantec may not
sublicense or assign to SalesLogix and for which SalesLogix will need to obtain
its own license (which Third Party Software is also identified in the Symantec
Disclosure Letter).
1.49 "Transaction Fee" means the fee payable by SalesLogix to Symantec
pursuant to Section 6.1.
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1.50 "Transferred Liabilities" means the liabilities and obligations
described on EXHIBIT E.
1.51 "Transition Agreement" means the agreement between the parties for
organizing and effecting transition of the Licensed Products from Symantec to
SalesLogix, in substantially the form of EXHIBIT F.
1.52 "Transition Period" means the period from the Closing Date through
March 31, 2000, except as adjusted pursuant to Section 6.6.
1.53 "Year 2000 Compliant" means that the software:
(a) Will accurately process prior to, during and after the year
2000, all date-related data and dates before, on and after January 1, 2000,
including but not limited to accurately inputting, storing, manipulating,
comparing, calculating, updating, recording, displaying, outputting,
transferring and sequencing such dates and data;
(b) Will accurately interface with other software and hardware
that uses standard date format (4 digits) for representation of the year;
(c) Will correctly process calendar dates for leap year as defined
by the Gregorian calendar (note that year 2000 is a leap year);
(d) Will not incur any adverse performance degradation due to
changes added to support Year 2000 compliance;
(e) Will provide capability for users to readily identify and use
the century in any date fields without special processing; and
(f) Will accommodate date data century recognition (4 digit years)
in all date-related data fields and in all date-related functions.
2. LICENSES GRANTED
2.1 Licensed Products. Subject to the terms and conditions of this
Agreement and the Transition Agreement, as well as pre-existing licenses granted
by Symantec through the Closing Date which are described on SCHEDULE 2.1 hereto,
Symantec hereby grants SalesLogix, effective as of the Closing Date and
continuing for the duration of the Royalty Term:
(a) an exclusive, worldwide license under Symantec's Intellectual
Property rights:
2.1.1 to reproduce, distribute and display the Licensed Programs in
Object Code form, in whole or in part, including, the right to incorporate and
distribute such Licensed Programs in Object Code form in End Products to be
distributed by or for
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SalesLogix or its Providers and to license and sublicense Providers to
reproduce, distribute and display such Licensed Programs in Object Code form to
End Users;
2.1.2 to reproduce and to license Providers to reproduce the
Licensed Programs in Source Code form, in whole or in part, for purpose of
providing maintenance and support to End Users; and
2.1.3 to reproduce, distribute and display and to license Providers
to reproduce, distribute and display the Licensed Materials, in whole or in
part, in End Products to be distributed by or for SalesLogix or its Providers
and to license and sublicense Providers to distribute such Licensed Materials to
End Users;
(b) a non-exclusive worldwide license to exercise the rights described
in Subsections 2.1.1, 2.1.2 and 2.1.3 above with respect to the Shared
Technology; provided, however, that Symantec shall retain its rights in the
Shared Technology and the right to grant sublicenses to third parties with
respect thereto (and only the Object Code, and not the Source Code, for the
Shared Technology shall be a Deliverable hereunder); and
(c) a non-exclusive, worldwide license to reproduce, distribute and
display the Object Code of the sublicensed Third Party Software identified in
EXHIBIT T-1, subject to the terms and conditions of such third party contracts.
2.2 Derivative Works. Subject to the terms and conditions of this
Agreement and the Transition Agreement, Symantec hereby grants to SalesLogix,
effective as of the Closing Date and continuing for the duration of the Royalty
Term, an exclusive, worldwide license:
2.2.1 to prepare Derivative Works and compilations based on the
Licensed Programs and Licensed Materials and any Derivative Works or
compilations thereof, including the right to license Providers to prepare
Derivative Works and the right to reproduce and distribute Licensed Programs in
Source Code form and Licensed Materials to such licensee(s) for purposes of
preparing Derivative Works; provided, however, that such Derivative Works based
on the Licensed Programs are prepared solely for SalesLogix or, if prepared for
a specific Provider, involve only minor private labeling, interfacing or
translation changes that do not substantially change the overall functionality
of the underlying product when compared to the form of the Licensed Programs
that is offered by SalesLogix to other Providers. Notwithstanding the foregoing
restrictions, but subject to Section 2.8, SalesLogix may authorize up to a
maximum of ten (10) Providers to have Derivative Works containing significant
changes to functionality prepared for them, provided that SalesLogix provides
written notice thereof to Symantec, and provided that SalesLogix does not
authorize more than ten (10) Providers to have such Derivative Works prepared
for them without the prior written consent of Symantec. Any such agreements
entered into by SalesLogix with Providers shall provide that SalesLogix will be
the owner of any Derivative Works created and the Intellectual Property rights
therein.
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2.2.2 to reproduce, distribute and display such Derivative Works
and compilations based on Licensed Programs and Licensed Materials, in whole or
in part, provided that portions of such Derivative Works and compilations
containing Licensed Programs may be reproduced and distributed in Object Code
form only; and
2.2.3 to license and sublicense Providers to reproduce, distribute
and display such Derivative Works and compilations based on Licensed Programs
and Licensed Materials, provided that such portions of such Derivative Works and
compilations containing Licensed Programs may be reproduced and distributed in
Object Code form only.
2.3 Rights Retained by Symantec. In addition to the rights retained by
Symantec with respect to the Shared Technology as set forth in Section 2.1(b)
above and the Third Party Software identified in EXHIBITS T-1 AND T-3, Symantec
shall remain the owner of the Licensed Products and the Intellectual Property
rights associated with the Licensed Products in the form delivered at Closing.
Symantec (and its Affiliates) shall be entitled: (a) to internally use the
Licensed Products to support its business activities; and (b) to include
portions of the Licensed Products currently shared by other products currently
distributed, marketed or licensed by Symantec (as well as products currently
under development by Symantec as long as the portions of the Licensed Products
included in such products under development do not represent a material portion
of any Licensed Program) for use, promotion, marketing, licensing or
distribution of products to third parties (including future revisions or
versions of such products).
2.4 Grant Back of License to Derivative Works to Symantec. Any
Derivative Works of the Licensed Programs and Licensed Materials created,
developed, used, adapted, modified, reproduced, marketed, promoted, licensed or
sublicensed pursuant to Section 2.2 (the "Derivative Products") shall be owned
by SalesLogix. SalesLogix hereby grants Symantec a fully paid worldwide license,
with rights to sublicense (i) to use, adapt, modify and reproduce for all
purposes the Derivative Products, in whole or in part, (ii) to create and
develop Derivative Works and compilations based on the Derivative Products, in
whole or in part, and (iii) to license and sublicense others to use, adapt,
modify, reproduce, market, promote, license and sublicense the Derivative
Products, in whole or in part, which rights shall include, but not be limited
to, the right to license and sublicense to third parties the right to
incorporate and distribute such Derivative Products in End Products to be
distributed by such third parties. Such license shall become exclusive following
the Royalty Term (unless a conversion of the Licenses to perpetual occurs
pursuant to Section 9.1 or SalesLogix exercises the Purchase Option pursuant to
Section 9.2), and shall become exclusive upon a termination of this Agreement
during the Royalty Term. Symantec hereby covenants to forebear from exercise of
the rights granted to it pursuant to this Section 2.4 and, other than the
obligations to deliver Source Code and Derivative Products into the source code
escrow pursuant to the Derivative Products Escrow Agreement, as provided by
Section 9.7, SalesLogix shall have no delivery obligations under this Section
2.4, until the earlier of (a) the Anniversary Date, or (b) the date on which
this Agreement is terminated. In the
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event the Licenses are converted to perpetual pursuant to Section 9.1 or
SalesLogix exercises the Purchase Option pursuant to Section 9.2, then upon such
conversion, the license to Derivative Works granted to Symantec hereunder shall
terminate and expire.
2.5 Copyright Registrations. If SalesLogix shall register pursuant to
the Act a copyright in the End Products or Derivative Works or compilations
based upon or containing Licensed Products, SalesLogix shall identify in any
such registration the pre-existing Licensed Product(s) by Symantec which is
included in or upon which is based the End Product, Derivative Work or
compilation.
2.6 Trademarks. For the duration of the Royalty Term, Symantec hereby
grants to SalesLogix an exclusive worldwide license, subject to the preexisting
licenses granted by Symantec, to use the Marks in connection with the promotion
of the Licensed Products and Derivative Products. This trademark license shall
be subject to SalesLogix's compliance with Symantec's trademark usage guidelines
attached hereto as EXHIBIT H to which Symantec may make reasonable modifications
from time to time upon written notice to SalesLogix. SalesLogix hereby
acknowledges Symantec's ownership of the Marks, agrees that it will do nothing
inconsistent with such ownership, and agrees that all use of the Marks by
SalesLogix shall inure to the benefit of Symantec. SalesLogix agrees that
nothing in this Agreement shall give SalesLogix any right, title or interest in
the Marks other than the right to use the Marks in accordance with this
Agreement. SalesLogix agrees not to register or attempt to register the Marks as
a trademark, service mark, internet domain name, or trade name, or any similar
mark or name, with any domestic or foreign governmental or quasi governmental
authority, which would be likely to cause confusion with the Marks. SalesLogix
may not register or use the Marks or an abbreviation of the Marks as part of an
internet domain name, except with Symantec's prior written approval, which
approval shall not be unreasonably denied or delayed; provided however, that the
domain names listed on SCHEDULE 2.6 hereto are deemed approved by Symantec. Use
of any such internet domain name will be subject to the terms of this Agreement.
SalesLogix agrees to maintain a consistent level of quality in connection with
its use of the Marks equal to that found in SalesLogix's existing
technology-related publications. SalesLogix further agrees to maintain a level
of quality in connection with its use of the Marks that is consistent with
general industry standards. SalesLogix understands that Symantec has the right
to monitor SalesLogix's use of the Marks. If SalesLogix produces other than
on-line publications in connection with the Marks, SalesLogix shall provide
Symantec representative samples of each such publication at the time the
publication is first published. If Symantec determines that SalesLogix is using
the Marks improperly and/or on goods which do not meet the quality standards set
forth above, Symantec shall so notify SalesLogix, and SalesLogix shall remedy
the improper use within fifteen (15) business days following receipt of such
notice from Symantec, with respect to on-line use, and within thirty (30) days
following receipt of such notice from Symantec with respect to hard copy, CD-ROM
and other electronic publications. The title of any publication SalesLogix
publishes pursuant to this agreement shall bear subscript trademark notices
("(TM)" or (R), as appropriate) immediately following the Marks. SalesLogix
shall include with any publication with which the
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Marks is used a trademark legend indicating that the Marks are marks of
Symantec, used under license, and a disclaimer that SalesLogix and not Symantec
has produced the publication and is responsible for the content thereof.
2.7 Competing Products Permitted. During the Royalty Term SalesLogix
shall have the right to develop, use, adapt, modify, reproduce, market, promote,
sell, license and sublicense products competitive with or functionally similar
to the Licensed Products or the End Products which are independently developed
by SalesLogix or by a third party and no such product shall give rise to a
different or additional royalty or other payment obligation under this
Agreement.
2.8 Sublicenses. SalesLogix shall not grant exclusive licenses or
sublicenses relating to a Licensed Product unless: (a) SalesLogix obtains
Symantec's prior written consent, which consent shall not be unreasonably denied
or delayed; or (b) such exclusive license (i) is subject to Symantec's rights
under this Agreement (including Sections 2.3 and 2.4), (ii) shall terminate
immediately, by its terms, if and when the Licenses to SalesLogix terminate, and
(iii) does not have the effect of licensing to SalesLogix's licensee a
substantial portion of the material rights granted to SalesLogix under this
Agreement.
2.9 Termination of Licenses for Default. Without limiting Symantec's
other remedies hereunder, if SalesLogix fails to fulfill any payment obligation
when due under this Agreement, then, thirty (30) days after providing written
notice to SalesLogix specifying such default, Symantec may terminate the
Licenses, without liability, unless SalesLogix has cured the default within the
thirty (30) day period. Termination of the Licenses by Symantec under this
Section 2.9 shall give immediate rise to the rights and obligations of the
parties under Section 9.5.
3. CLOSING
The parties intend that, pursuant to the Licenses, SalesLogix shall
during the Royalty Term have sole and exclusive responsibility for the Licensed
Programs and the Licensed Materials, subject to the terms and conditions of this
Agreement. Accordingly, in order to permit SalesLogix to fully implement the
Licenses and conduct its business related to the Licensed Products during the
Royalty Term, Symantec and SalesLogix agree to the Section 3 provisions set
forth below.
3.1 Closing. The Closing of the transactions described in this
Agreement shall take place at 10:00 a.m., at the offices of Fenwick & West LLP
at Two Palo Alto Square, Palo Alto, California, on a date to be specified by the
parties, which will be no later than the fifth (5th) business day after
satisfaction or waiver of the conditions set forth in Sections 4 and 5, but in
no event before December 31, 1999.
3.2 Transfer of Tangible Assets and Other Transferred Assets;
Deliverables. Symantec shall sell, assign and transfer to SalesLogix, at the
Closing, all right, title and interest to the Tangible Assets. At the Closing
Symantec shall transfer to SalesLogix the
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rights indicated on EXHIBIT C hereto to the Other Transferred Assets. At the
Closing Symantec shall transfer to SalesLogix and SalesLogix shall assume the
Transferred Liabilities. In no event shall Symantec be deemed to have
transferred to SalesLogix any rights in the Retained Assets. Symantec shall
deliver to SalesLogix at the Closing the Deliverables described in EXHIBIT I.
3.3 Termination of Agreement Prior to Closing; Effect; Waivers. This
Agreement may be terminated prior to Closing: (i) by the mutual consent in
writing of Symantec and SalesLogix; (ii) by the Board of Directors of Symantec
if any condition provided in Section 5 has not been satisfied or waived on or
before March 30, 2000; (iii) by the Board of Directors of SalesLogix if any
condition provided in Section 4 has not been satisfied or waived on or before
March 30, 2000; or (iv) by the Board of Directors of either Symantec or
SalesLogix if the Closing Date has not occurred by March 30, 2000; provided,
however, that the right to terminate this Agreement under clause (iv) shall not
be available to any party whose failure to fulfill any obligation under this
Agreement shall have been the cause of, or shall have resulted in, the failure
of the Closing to occur prior to such date; or (v) by either party if there
shall have been instituted, pending or threatened (and not withdrawn) any action
or proceeding by any governmental authority or administrative agency before any
governmental authority, administrative agency or court of competent
jurisdiction, or there shall be in effect any judgment, decree or order of any
governmental authority, administrative agency or court of competent
jurisdiction, in either case, seeking to prevent consummation of any of the
transactions contemplated by this Agreement or the Ancillary Agreements.
3.3.1 Effect of Termination. In the event of termination of this
Agreement as provided in this Section 3.3, this Agreement shall forthwith become
void (excepting only those provisions hereof that by their terms survive the
termination of this Agreement), each party shall pay the costs and expenses
incurred by it in connection herewith, and there shall be no liability on the
part of any party hereto; provided that nothing herein shall relieve either
party from liability for any willful breach hereof.
3.3.2 Waiver. At any time prior to the Closing, any party hereto
may (a) extend the time for the performance of any of the obligations or other
acts of the other party hereto, (b) waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant hereto, or (c) waive compliance with any of the agreements or
conditions contained herein. Any such extension or waiver shall be valid if set
forth in an instrument in writing signed by the party to be bound thereby.
3.4 Other Negotiations. Between the Effective Date and either Closing
or termination of this Agreement pursuant to Section 3.3 (the "Expiration
Date"), Symantec will not, directly or indirectly, through any officer, director
(subject, however, to the fiduciary duty of the Board of Directors), employee,
Affiliate or agent or otherwise, take any action to solicit, initiate, seek,
entertain, encourage or support any inquiry, proposal or other offer from,
furnish any information to, or participate in any discussions or negotiations
with, any third party regarding any sale or licensing of the Licensed
13
Programs or Licensed Materials or associated business, other than nonexclusive
licenses in the ordinary course of business related to the distribution of the
Licensed Products.
4. CONDITIONS TO CLOSING BY SALESLOGIX
SalesLogix's obligation to Close the transactions described in this
Agreement is subject to the fulfillment on or prior to the Closing Date of each
of the following conditions:
4.1 Representations and Warranties Correct; Performance. The
representations made by Symantec pursuant to Section 11 shall be true and
correct in all material respects when made and shall be true and correct in all
material respects on the Closing Date with the same force and effect as if they
had been made on and as of the Closing Date other than such representations and
warranties as are made as of another date; and all covenants, agreements, and
conditions contained in this Agreement to be performed or complied with by
Symantec on or prior to the Closing shall have been performed or complied with
in all material respects.
4.2 Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated hereby and all documents and
instruments incident to such transactions shall be reasonably satisfactory in
substance and form to SalesLogix.
4.3 Officer's Certificates. SalesLogix shall have received a
certificate, dated as of the Closing Date, executed on behalf of Symantec by an
appropriate officer stating that the conditions to Closing set forth in Section
4.1 hereof have been complied with in all material respects.
4.4 Requisite Approvals. All requisite consents, authorizations, and
regulatory approvals of governmental bodies, and of those private entities
listed on EXHIBIT J shall have been received.
4.5 Escrow Agreements. The parties thereto shall have entered into and
delivered the Purchase Escrow Agreement and the Derivative Products Escrow
Agreement.
4.6 Opinion of Symantec's Counsel. SalesLogix shall have received an
opinion of counsel for Symantec in the form attached hereto as EXHIBIT L dated
as of the Closing Date.
4.7 Registration Rights Agreement. Symantec shall have entered into and
delivered a Registration Rights Agreement with Symantec, in the form of EXHIBIT
M hereto (the "Registration Rights Amendment"), or at Symantec's option, shall
have entered into and delivered an agreement which provides Symantec with the
registration and other rights granted under the Investors Rights Agreement
entered into by SalesLogix
14
with one or more of the new investors who provide financing to SalesLogix
between the date hereof and the Closing Date (the "Alternate Investor Rights
Agreement").
4.8 Stockholder Agreement. Symantec shall have entered into and
delivered the Stockholder Agreement in substantially the form of EXHIBIT N
hereto (the "Stockholder Agreement").
4.9 Transition Agreement. Symantec shall have entered into and
delivered the Transition Agreement.
4.10 HSR Act. All waiting periods, if any, under the HSR Act relating
to the transactions contemplated hereby will have expired or terminated early.
4.11 No Injunctions or Restraints. No statute, rule, regulation,
executive order, decree, temporary restraining order, preliminary or permanent
injunction, judgment or other order or ruling issued by any court of competent
jurisdiction or other governmental entity or other legal restraint or
prohibition will be in effect which would (i) make the Licenses illegal or
otherwise prevent the consummation of this Agreement, (ii) prohibit SalesLogix's
receipt, use or operation of, or compel SalesLogix or to dispose of or hold
separate, all or a material portion of the Licenses or Licensed Products, (iii)
compel SalesLogix to dispose of or hold separate all or a material portion of
the Licenses or Licensed Products or Tangible Assets, or (iv) impose material
limitations on the ability of SalesLogix effectively to exercise full ownership
and financial benefits of the Licenses and Tangible Assets, or impose any
condition to this Agreement or the Licenses which would be materially adverse to
SalesLogix.
4.12 No Litigation. No suit, claim, cause of action, arbitration,
mediation, investigation or other proceeding under which a third party or
governmental entity is contesting, challenging or seeking to alter, enjoin or
adversely affect the transfer of the Licensed Products or Licenses contemplated
by this Agreement or any other transaction contemplated by this Agreement, will
be pending or threatened.
4.13 Licensed Products. There shall have been no material adverse
change in the business that consists of Symantec's marketing, distribution and
sale of the Licensed Products from the Effective Date.
4.14 Bill of Sale and Assumption of Liabilities. The parties shall have
executed and delivered a Bill of Sale with respect to the Tangible Assets and an
Assignment and Assumption of Liabilities with respect to the Assumed Contracts
and the Transferred Liabilities, each in form and substance satisfactory to
SalesLogix.
5. CONDITIONS TO CLOSING BY SYMANTEC
Symantec's obligation to Close the transactions described in this
Agreement is subject to the fulfillment or prior to the Closing Date of each of
the following conditions:
15
5.1 Representations and Warranties Correct; Performance. The
representations and warranties made by SalesLogix in Section 12 shall be true
and correct in all material respects when made, and shall be true and correct in
all material respects on the Closing Date with the same force and effect as if
they had been made on and as of the Closing Date other than such representations
and warranties as are made as of another date; and all covenants, agreements,
and conditions contained in this Agreement to be performed or complied with by
SalesLogix on or prior to the Closing shall have been performed or complied with
in all material respects.
5.2 Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated hereby and all documents and
instruments incident to such transactions shall be reasonably satisfactory in
substance and form to Symantec.
5.3 Officer's Certificate. Symantec shall have received a certificate,
dated as of the Closing Date, executed on behalf of SalesLogix by an appropriate
officer stating that the conditions to closing set forth in Section 5.1 hereof
have been complied with in all material respects.
5.4 Requisite Approvals. All requisite consents, authorizations, and
regulatory approvals of governmental bodies, and of those private entities
listed on EXHIBIT J shall have been received.
5.5 Opinion of SalesLogix's Counsel. Symantec shall have received an
opinion of Osborn Maledon, P.A., counsel to SalesLogix, in the form attached
hereto as EXHIBIT O dated as of the Closing Date.
5.6 Registration Rights Agreement. SalesLogix and the requisite other
parties thereto shall have entered into and delivered the Registration Rights
Amendment, or at the option of Symantec, the Alternate Investor Rights
Agreement.
5.7 Transition Agreement. SalesLogix shall have entered into and
delivered the Transition Agreement.
5.8 HSR Act. All waiting periods, if any, under the HSR Act relating to
the transactions contemplated hereby will have expired or terminated early.
5.9 No Injunctions or Restraints. No statute, rule, regulation,
executive order, decree, temporary restraining order, preliminary or permanent
injunction, judgment or other order or ruling issued by any court of competent
jurisdiction or other governmental entity or other legal restraint or
prohibition will be in effect which would make the Licenses illegal or otherwise
prevent the consummation of this Agreement.
5.10 No Litigation. No suit, claim, cause of action, arbitration,
mediation, investigation or other proceeding under which a third party or
governmental entity is contesting, challenging or seeking to alter, enjoin or
adversely affect the transfer of the
16
Licensed Products or Licenses contemplated by this Agreement or any other
transaction contemplated by this Agreement, will be pending or threatened.
5.11 Issuance of Stock. SalesLogix shall have issued and delivered to
Parent a duly prepared and executed stock certificate representing the Shares
(as defined below) in the form of EXHIBIT P.
5.12 Escrow Agreements. The parties thereto shall have entered into and
delivered the Purchase Escrow Agreement and the Derivative Products Escrow
Agreement.
5.13 No Material Adverse Effect. Since the Effective Date there shall
have been no Material Adverse Effect with respect to SalesLogix.
5.14 Bill of Sale and Assumption of Liabilities. The parties shall have
executed and delivered a Bill of Sale with respect to the Tangible Assets and an
Assignment and Assumption of Liabilities with respect to the Assumed Contracts
and the Transferred Liabilities, each in form and substance satisfactory to
Symantec.
6. PAYMENTS TO SYMANTEC
6.1 Transaction Fee.
6.1.1 Transfer of Common Stock Consideration. In consideration
of the Licenses granted in Section 2 and the transfer of the Tangible Assets
pursuant to Section 3, and the Purchase Option granted in Section 9, SalesLogix
shall deliver to Symantec at Closing a Transaction Fee consisting of that number
of shares of fully paid and nonassessable Common Stock of SalesLogix (the
"Common Stock Consideration") equal to $20,000,000 divided by the average of the
bid and ask price for SalesLogix Common Stock for the twenty (20) trading days
immediately prior to the Effective Date, as such stock is traded on the NASDAQ
National Market System.
6.1.2 Investment Representations. In connection with the
receipt of the shares representing the Common Stock Consideration (the
"Shares"), Symantec has made the investment representations and warranties set
forth in Section 11.1.
6.1.3 Legends. The share certificate(s) evidencing the Shares
issued hereunder shall be endorsed with the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS. THEY MAY
NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT AND ANY
APPLICABLE STATE SECURITIES LAW OR AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED."
17
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN
ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE
SHAREHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE
COMPANY."
Symantec acknowledges that appropriate stop transfer orders may be noted on
SalesLogix's stock records with respect to all certificates so legended.
6.2 Royalty during Royalty Term. In further consideration of the
Licenses and the Purchase Option, SalesLogix agrees to make royalty payments
("Royalties") to Symantec during the Royalty Term, equal to:
- 40% of the Consolidated Revenue for each calendar quarter during the
period beginning on the Closing Date and ending on December 31, 2000;
- 35% of the Consolidated Revenue for each calendar quarter during the
period beginning on January 1, 2001 and ending on December 31, 2001;
- 30% of the Consolidated Revenue for each calendar quarter during the
period beginning on January 1, 2002 and ending on December 31, 2002; and
- 25% of the Consolidated Revenue for each calendar quarter during the
period beginning on January 1, 2003 and ending on December 31, 2003.
Notwithstanding the foregoing formula, SalesLogix shall not be required
to pay Royalties to Symantec hereunder in excess of the following aggregate
cumulative Royalties as of the relevant calendar quarter end dates:
Quarter Ending Max. Cum. Royalties Quarter Ending Max Cum. Royalties
-------------- ------------------- -------------- ------------------
March 31, 2000 $5,000,000 March 31, 2002 $39,750,000
June 30, 2000 $10,000,000 June 30, 2002 $42,500,000
September 30, 2000 $15,000,000 September 30, 2002 $45,250,000
December 31, 2000 $20,000,000 December 31, 2002 $48,000,000
March 31, 2001 $24,250,000 March 31,2003 $50,250,000
June 30, 2001 $28,500,000 June 30, 2003 $52,500,000
September 30, 2001 $32,750,000 September 30, 2003 $54,750,000
December 31, 2001 $37,000,000 December 31, 2003 $57,000,000
6.3 Payment of Royalties. SalesLogix shall provide Symantec with
quarterly reports of the Royalties due under Section 6.2 within three (3) to
five (5) business days after the end of Symantec's fiscal quarter (the ending
dates of each such fiscal quarter are indicated on SCHEDULE 6.3 hereto),
specifying the amount of Royalties based on revenues from United States
operations and the amount of Royalties based on revenues from international
18
operations. SalesLogix shall pay the Royalties for each calendar quarter to
Symantec or its designee, in U.S. Dollars, within fifteen (15) days after the
end of such calendar quarter. If there should be a discrepancy in the amount of
Consolidated Revenue reported to Symantec pursuant to this Section 6.3 with
respect to a particular calendar quarter and the amount of Consolidated Revenue
reported by SalesLogix on its Form 10-Q, resulting in a discrepancy between the
actual Royalties and reported Royalties (whether due to the difference between
Symantec's fiscal quarter and the calendar quarter or otherwise), then the
report and payment for the next successive calendar quarter shall include any
adjustment, whether an additional payment or a deduction, required to "true up"
the actual Royalties to the reported Royalties. The parties acknowledge that
with respect to the calendar quarter ending March 31, 2000, Consolidated Revenue
will include and Royalties will be payable with respect to revenue generated
under the Transition Agreement, but such revenue numbers will not be included in
the Consolidated Revenue reported by SalesLogix until such revenue numbers are
provided to SalesLogix by Symantec.
6.4 Audit Rights. SalesLogix shall keep all appropriate records and
books of account, in accordance with generally accepted accounting principles,
with respect to its distribution of products, revenues and the amount of
Royalties due pursuant to this Section 6. During the Royalty Term (and for one
year thereafter if less than $57,000,000 in Royalties are received by Symantec
during the Royalty Term) Symantec may cause a third party auditor hired by
Symantec, after reasonable prior written notice and during normal business
hours, to enter SalesLogix's premises where such books and records are normally
kept, at reasonable intervals but no more frequently than on an annual basis,
for purposes of auditing or inspecting all such records and books of account for
the period(s) requested in such notice. The cost of any such audit or inspection
shall be paid and borne by Symantec; provided, however, that in the event
Symantec initiates an audit or inspection under this Section 6.4 and it is
finally determined that the Royalties reported and paid by SalesLogix pursuant
to this Section 6 for the period(s) audited or inspected is, in the aggregate,
less than ninety-five percent (95%) of the aggregate Royalties actually payable
for said period(s), then SalesLogix shall pay to Symantec on demand the
reasonable costs and expenses of such audit or inspection. If any such audit or
inspection reveals that an overpayment or underpayment of Royalties may have
occurred, then (i) in the case of an underpayment, the necessary correcting
payment shall be made within fifteen (15) days after the amount of the
discrepancy is determined or (ii) in the case of an overpayment, the amount
overpaid, at Symantec's option, shall be paid in cash or credited against future
Royalties otherwise payable (any unpaid balance remaining when this Agreement
terminates or the Royalty Term ends shall then be paid in cash by Symantec to
SalesLogix), in either case with interest on the amount outstanding until paid
or credited (as applicable) in full, at the then "prime rate" as published in
the Wall Street Journal.
6.5 Adjustment to Royalty Calculations. The parties acknowledge that
both the percentages of Consolidated Revenue specified in Section 6.2 above as
Royalties and the use of a percentage of Consolidated Revenue as the method of
calculating Royalties
19
payable hereunder assume that SalesLogix and the SalesLogix Group will continue
to conduct that portion of their businesses in existence as of the Effective
Date (the "Core Business") in a manner consistent with the conduct of such
businesses as of the Effective Date, including with respect to revenue
recognition policies. Should SalesLogix and/or the SalesLogix Group make a
change in their revenue recognition policies or business models applicable to
the Core Business that result in revenue recognition not occurring immediately
upon the sale, license or other disposition or distribution of the products
and/or services constituting the Core Business and such change would result in a
decrease of twenty percent (20%) or more of the Consolidated Revenue for any
quarter specified in Section 6.2, Symantec shall have the right to require an
adjustment in the royalty provisions of this Agreement, which shall be
negotiated in good faith by the Chief Financial Officers of the parties as
promptly as possible, which new royalty provisions shall have the effect of
providing Symantec with Royalties comparable in amount to the Royalties it would
have received if SalesLogix and/or the SalesLogix Group had not made any changes
in their revenue recognition policies or business models applicable to the Core
Business.
6.6 Additional Payment Adjustment. If the Closing Date occurs after the
expiration of the normal HSR waiting period (the "Measurement Date"), SalesLogix
shall pay Symantec, within five (5) business days of the actual Closing Date, an
amount equal to the number of business days after December 31, 1999 that the
Closing occurs multiplied by $14,500; provided, however, that the foregoing
shall not apply in the event all conditions to Closing have been met (including
the required HSR approval or expiration) but Symantec fails to close on such
date or delays the closing through no fault of SalesLogix. If the Closing Date
has not occurred on or before the first business day following the Measurement
Date, the Chief Financial Officers of Symantec and SalesLogix shall meet and
renegotiate in good faith the allocation and recognition of costs and revenues
related to the Licensed Products and the term and pricing of the Transition
Agreement.
7. ADDITIONAL AGREEMENTS OF THE PARTIES
7.1 Taxes, etc. SalesLogix shall be exclusively responsible for the
payment of all taxes, tariffs and duties (including without limitation sales,
use, value added, transfer, withholding and excise taxes and customs duties of
all types) arising from amounts payable to Symantec hereunder, excluding any
income taxes on amounts received by Symantec. SalesLogix hereby waives
compliance by Symantec with any bulk sale or similar laws or statutes in
connection with the transactions contemplated hereby.
7.2 Standard of Performance. Each party shall perform its obligations
under this Agreement using a standard of performance that is equal to or greater
than the standard of performance used by such party to perform its general
business obligations and in any event shall use its diligent good faith efforts
and devote sufficient resources to perform its obligations under this Agreement.
20
7.3 Government Authorizations; Hart Scott Rodino.
7.3.1 Efforts. Each party hereto will use its reasonable best efforts
to obtain all authorizations, consents, orders and approvals of all United
States and other non-U.S., federal, state and local regulatory bodies and
officials that may be or become necessary for the execution and delivery of, and
the performance of its obligations pursuant to, this Agreement and the Ancillary
Agreements and will cooperate fully with the other party in promptly seeking to
obtain all such authorizations, consents, orders and approvals. Each party
hereto agrees to make an appropriate filing of a Notification and Report Form
pursuant to the HSR Act with respect to the transactions contemplated hereby as
promptly as is practicable after the date hereof and to supply promptly any
additional information and documentary material that may be requested by any
governmental authority pursuant to the HSR Act. The parties hereto will not take
any action that will have the effect of delaying, impairing or impeding the
receipt of any required approvals. Without limiting the generality of the
parties' undertakings pursuant to this Section, the parties shall use their
reasonable best efforts to prevent the entry in a judicial or administrative
proceeding brought under any antitrust law by any government antitrust authority
or any other party of any permanent or preliminary injunction or other order
that would make consummation of the transactions contemplated by this Agreement
unlawful or that would prevent or delay such consummation.
7.3.2 Communications. Each party hereto shall promptly inform the other
of any material communication between such party and the Federal Trade
Commission, the Department of Justice or any other United States federal or
state, or non-U.S. government or governmental authority regarding any of the
transactions contemplated hereby. If any party or any affiliate of such party
receives a request for additional information or for documents or any material
from any such government or governmental authority with respect to the
transactions contemplated hereby, then such party shall endeavor in good faith
to make or cause to be made, as soon as reasonably practicable and after
consultation with the other party, an appropriate response in compliance with
such request. Further, no written materials shall be submitted by any party to
the Federal Trade Commission, the Department of Justice or any other United
States federal or state, or non-U.S. governmental agency in connection with HSR
Act compliance or the merger control or competition regulations of any other
country, nor shall any oral communications be initiated with such governmental
entities by any party, without prior disclosure to and coordination with the
other parties and their counsel. Each party hereto will cooperate in connection
with reaching any understandings, undertakings or agreements (oral or written)
involving the Federal Trade Commission, the Department of Justice or any other
United States federal or state, or non-U.S. governmental authority in connection
with the transactions contemplated hereby.
7.4 Assumption of Liabilities by SalesLogix. SalesLogix shall assume
and be responsible for the Transferred Liabilities as of the Closing Date.
21
7.5 Transition Teams. SalesLogix and Symantec shall each promptly
appoint representatives from their product development, marketing, sales,
finance and human resources departments to form counterpart transition teams for
the period from the Effective Date through the end of the Transition Period.
Such departmental transition teams shall use reasonable good faith efforts to
cooperate and coordinate activities to facilitate SalesLogix's preparations
prior to the Closing for the transition, and to facilitate after the Closing a
smooth implementation of the Transition Agreement and a smooth transition of the
Licensed Products from Symantec to SalesLogix.
8. POST-CLOSING COVENANTS
8.1 Export Compliance. SalesLogix will comply with all laws applicable
to distribution of the Licensed Products, including but not limited to the U.S.
Export Administration Act and regulations promulgated thereunder and all other
laws, regulations, rules, orders, writs, injunctions, judgments and decrees
applicable to the export or re-export of controlled commodities or technical
data. Symantec shall provide any necessary or reasonable cooperation and
assistance, to the extent requested by SalesLogix, in connection with
SalesLogix's processing of any export applications and licenses for the Licensed
Products, provided that SalesLogix reimburses Symantec for any out-of-pocket
expenses reasonably incurred in connection with providing such assistance.
8.2 Non-Competition by Symantec. Symantec agrees that, during the
Royalty Term, Symantec will not, and will cause its Subsidiaries not to, engage
or participate in the conduct or management of, or own (legally or beneficially)
any entity which as a material portion of its business (a portion shall be
deemed to be material if it represents more than 20% of the revenue of such
entity) engages in the development, marketing, licensing or sale of (i) a stand
alone software product or hosted or online offering that has as its principal
functionality contact management, sales automation, or customer relationship
management, or (ii) a stand alone software product or hosted or online offering
that competes with any of the products listed on EXHIBIT A. The foregoing
covenant shall not prohibit the ownership, or right or option to acquire, any
passive investment in any business provided that such investment constitutes not
more than twenty percent (20%) of the aggregate equity interests in such
business. Symantec acknowledges that the foregoing covenant is supported by
adequate consideration and waives the claim or defense of inadequate
consideration. By executing this Agreement, Symantec specifically acknowledges
that the foregoing restrictions were bargained for by the parties, that such
restrictions are reasonable and necessary to protect the legitimate interests of
SalesLogix and that monetary damages would be inadequate compensation for a
breach of this provision.
8.3 Non-Competition by SalesLogix. SalesLogix agrees that, during the
Royalty Term, SalesLogix will not, and will cause its Subsidiaries not to, use
the Licensed Products, the Source Code or Intellectual Property to engage or
participate in the conduct or management of, or own (legally or beneficially)
any business which
22
engages in the development, marketing, licensing or sale of software products
that compete with the other product offerings of Symantec as of the Effective
Date that are listed on EXHIBIT Q. The foregoing covenant shall not prohibit the
ownership, or right or option to acquire, any passive investment in any business
provided that such investment constitutes not more than twenty percent (20%) of
the aggregate equity interests in such business. SalesLogix acknowledges that
the foregoing covenant is supported by adequate consideration and waives the
claim or defense of inadequate consideration. By executing this Agreement,
SalesLogix specifically acknowledges that the foregoing restrictions were
bargained for by the parties, that such restrictions are reasonable and
necessary to protect the legitimate interests of Symantec and that monetary
damages would be inadequate compensation for a breach of this provision.
8.4 Symantec's Status. Based solely on the Common Stock Consideration
issuable to Symantec hereunder, SalesLogix will not classify or subject Symantec
to treatment as a "control person," "affiliate" or "insider" and will not take
the position that Symantec is subject to SalesLogix's insider trading policy or
the restrictions applicable to affiliates under Rule 144 promulgated under the
Securities Act of 1933, as amended (the "Securities Act"), or restrict Symantec
to selling the Shares only during SalesLogix's trading window.
8.5 S-3 Availability. SalesLogix will use its best efforts to become
eligible to use Form S-3 as soon as possible under applicable law, which is
presently expected to be approximately May 27, 2000.
8.6 Further Assurances. From time to time after the Closing Date,
Symantec will at SalesLogix' expense, execute and deliver, or cause to be
executed and delivered, such documents to SalesLogix as SalesLogix may
reasonably request, and from time to time after the Closing Date, SalesLogix
will, at Symantec's expense, execute and deliver such documents to Symantec as
Symantec may reasonably request, in order to more effectively consummate the
transactions and transfers contemplated by this Agreement.
8.7 Assistance. Upon five (5) business days notice, Symantec will
cooperate with and provide to SalesLogix's auditors reasonable access during
Symantec normal business hours to the necessary Symantec business records to
permit such auditors to audit the books and records relating to the ACT! product
line to satisfy SalesLogix's disclosure obligations under law, including but not
limited to preparation of a Form 8-K and other related documents. Any such audit
shall be conducted and access shall be provided in a manner to cause the least
interference possible with the conduct of Symantec's business. SalesLogix shall
reimburse Symantec for its out-of-pocket expenses incurred for preparation or
production of records, reports or information requested by SalesLogix or its
auditors that are outside Symantec's ordinary financial reporting procedures.
23
8.8 Third Party Consents. Symantec and SalesLogix shall each use
reasonable commercial efforts and shall cooperate together to obtain the Third
Party Consents prior to the Closing Date, as specified in EXHIBIT J.
8.9 ACT!4.0. Because the parties have agreed that the ACT!4.0 for
Windows 95/98/NT ("ACT!4.0") product should be obsoleted and because making the
Source Code for ACT!4.0 a Deliverable under this Agreement would be burdensome
given the need to cull out Third Party Software, the parties have agreed to
exclude ACT!4.0 as a Deliverable under this Agreement. If after the Effective
Date the parties discover that it will be necessary for SalesLogix to support
existing copies of ACT!4.0 for Windows products in use by end user customers or
otherwise to assume liabilities with respect to ACT!4.0, the parties shall work
together in good faith to provide SalesLogix with access to the Source Code for
ACT!4.0 or otherwise enable SalesLogix to fulfill such obligations. Any revenue
generated by ACT!4.0 after the Closing Date shall accrue to the benefit of
SalesLogix. Symantec covenants and agrees to archive the Source Code for ACT!4.0
or on before the Closing Date. Other than for the purpose of fulfilling existing
licensing commitments, and subject to Symantec's retained rights to the Shared
Technology and its rights under Sections 2.3 and 2.4, Symantec shall not
directly or indirectly license, reproduce, distribute or prepare Derivative
Works from ACT!4.0 following the Closing Date without SalesLogix's prior written
consent, which shall not be unreasonably denied or delayed.
9. CONVERSION OF LICENSES TO PERPETUAL; GRANT OF PURCHASE AND QUIT CLAIM
OPTIONS
9.1 Conversion of Licenses. If on or prior to the Anniversary Date,
SalesLogix shall have paid Royalties to Symantec aggregating $60,000,000 over
the Royalty Term without regard to the time value of money, then upon such
Anniversary Date: (i) the Licenses granted pursuant to Sections 2.1(a), 2.2,
and 2.6 shall be automatically converted to exclusive, perpetual, paid-up, and
irrevocable Licenses and the Licenses granted pursuant to Section 2.1(b) shall
be automatically converted to non-exclusive, perpetual and paid-up Licenses;
(ii) the rights and licenses of Symantec under Section 2.4 shall terminate;
(iii) the restriction in Sections 2.1, 2.2 and 2.8 on SalesLogix's ability to
grant exclusive licenses or licenses of Source Code shall terminate; (iv) the
restriction in Section 2.6 on SalesLogix's use of the Marks shall terminate; (v)
SalesLogix shall have the right thereafter, at its sole discretion, to exercise
the Purchase Option described in Section 9.2; and (vi) if SalesLogix does not
exercise the Purchase Option described in Section 9.2; Symantec shall have the
right thereafter, at its sole discretion, to exercise the Quit Claim Option
described in Section 9.3.
9.2 Grant of Purchase Option. If on or prior to the Anniversary Date,
SalesLogix shall have paid Royalties to Symantec aggregating $60,000,000 over
the Royalty Term without regard to the time value of money, then upon such
Anniversary Date SalesLogix shall have the option, exercisable at any time
within 30 days after the Anniversary Date, to purchase all of Symantec's right,
title and interest to the Licensed
24
Programs, subject to the rights retained pursuant to Section 2.3, and the
Derivative Products thereof (the "Purchase Option"), by delivery to Symantec and
the Escrow Agent named in the Purchase Escrow Agreement of written notice of
exercise of the Purchase Option.
9.3 Grant of Quit Claim Option. If the Purchase Option described in
Section 9.2 is triggered but not exercised by SalesLogix within the time period
provided, Symantec shall thereafter have the option, exercisable at any time
thereafter, to deliver to SalesLogix a quit claim transferring ownership of all
of Symantec's right, title and interest to the Licensed Programs, subject to the
rights retained pursuant to Section 2.3, and the Derivative Products thereof to
SalesLogix (the "Quit Claim Option"), which quit claim shall be accepted by
SalesLogix without reservation.
9.4 Implementation of Purchase Option Exercise. Promptly following the
exercise of the Purchase Option and the delivery of notice of exercise by
SalesLogix to Symantec and the Escrow Agent, the parties shall execute and
deliver to Escrow Agent appropriate instructions for release of the Purchase
Option documents from the escrow.
9.5 Effect of Non-Conversion of Licenses. If on or prior to the
Anniversary Date, SalesLogix shall have paid Royalties to Symantec aggregating
less than $60,000,000 over the Royalty Term without regard to the time value of
money, then upon such Anniversary Date: (i) the Licenses shall automatically
terminate and cease to exist, (ii) Symantec shall be released of its obligation
to forebear exercise of its license to Derivative Works of Licensed Products
pursuant to Section 2.4; and (iii) SalesLogix shall deliver to Symantec within
fifteen (15) days of such Anniversary Date copies of all Licensed Products and
Derivative Products, including electronic copies of Source Code and Object Code
of Derivative Works of Licensed Products and physical copies and electronic
copies of Derivative Works of Licensed Materials.
9.6 Additional Payments of Royalties. SalesLogix may, but shall not be
required to, make additional payments of Royalties during the thirty (30) day
period prior to the Anniversary Date to bring the total amount of Royalties paid
to Symantec to $60,000,000 in the aggregate.
9.7 Derivative Works Escrow. From time to time as Derivative Products
are developed and marketed to third parties (but no more frequently than
semi-annually), SalesLogix shall deposit a copy of all such Derivative Products
(but only for new versions denominated by changes in version number to the left
of the decimal point or similar changes in designation indicative in the
software industry as denominating a new version), including electronic copies of
Source Code and Object Code, as well as physical copies and electronic copies of
Derivative Works of Licensed Materials, with DSI under the Derivative Products
Escrow Agreement, in a form to be agreed upon by the parties prior to Closing.
Such copies of Derivative Products shall be released by DSI to Symantec upon
written demand by Symantec after the Anniversary Date if SalesLogix
25
has not exercised the Purchase Option within the time provided in accordance
with this Section 9 or the earlier termination of this Agreement.
10. CONFIDENTIAL INFORMATION
10.1 Symantec's Obligations. Symantec shall safeguard and keep
confidential all Confidential Information of SalesLogix delivered to Symantec in
connection with the transactions contemplated by this Agreement and shall return
all Confidential Information to SalesLogix promptly upon request and in any
event within fifteen (15) days of the termination of this Agreement. Symantec
agrees to safeguard any such Confidential Information received from SalesLogix
using measures that are equal to the standard of performance used by Symantec to
safeguard its own Confidential Information of comparable value, but in no event
less than reasonable care. Symantec will keep confidential and safeguard the
Licensed Products using measures that are equal to the standard of performance
used by Symantec to safeguard its other Confidential Information of comparable
value, but in no event less than reasonable care. Symantec will maintain in full
force and effect any and all existing Intellectual Property rights in the
Licensed Products, subject to the Licenses, provided that SalesLogix reimburses
Symantec for any out-of-pocket expenses incurred by Symantec to do so.
SalesLogix shall have the right to require Symantec, at SalesLogix's expense, to
take such additional actions as SalesLogix reasonably believes appropriate to
obtain, maintain and enforce other forms of proprietary protection (including
without limitation patent and copyright registration) that are not inconsistent
with the confidential treatment required by this Agreement.
10.2 SalesLogix's Obligations. SalesLogix shall safeguard and keep
confidential all Confidential Information of Symantec delivered to SalesLogix in
connection with the transactions contemplated by this Agreement and shall return
all Confidential Information of Symantec to Symantec promptly upon request and
in any event within fifteen (15) days of termination of this Agreement.
SalesLogix agrees that the Licensed Products are Confidential Information and
valuable trade secrets of Symantec and agrees that except as expressly provided
in this Agreement, all ownership rights therein remain in Symantec and that
SalesLogix will safeguard such Confidential Information using measures that are
equal to the standard of performance used by SalesLogix to safeguard its own
Confidential Information of comparable value, but in no event less than
reasonable care. Prior to exercise of the Purchase Option, SalesLogix will
include Symantec copyright notices in all copies made of any of the Licensed
Products, Derivative Products or substantial portions thereof.
10.3 Joint Obligations. Neither party shall, without the prior written
consent of the other party:
10.3.1 disclose any Confidential Information of the other party to
any person other than an employee or an independent contractor with a need to
know who
26
agrees to be bound by confidentiality agreements containing provisions no less
protective than this Section or as expressly contemplated by this Agreement;
10.3.2 make any unauthorized copies of Confidential Information;
or
10.3.3 use any Confidential Information of the other party for any
purpose except to implement its rights and obligations under this Agreement and
as otherwise expressly contemplated by this Agreement;
provided, however, that if any party or its representatives is requested or
required to disclose any Confidential Information by a governmental entity or
court order, that party will promptly notify the other party of such request or
requirement in writing so that the other party may seek an appropriate
protective order or other appropriate relief and/or waive compliance with the
provisions of this Agreement, and if, in the absence of such relief or waiver,
any party or its representatives are, in the opinion of such party's counsel,
legally compelled to disclose Confidential Information, then that party may
disclose such of the Confidential Information to the entity compelling
disclosure as is, according to such opinion, required, without liability
hereunder.
10.4 Unauthorized Use or Disclosure. If either party learns of any use
or disclosure of Confidential Information of the other party which is not
permitted under this Agreement, it shall promptly notify the party whose
Confidential Information was used or disclosed, stating in reasonable detail all
facts known to it with respect to such unauthorized use or disclosure and shall
cooperate in all respects reasonably requested by the party whose Confidential
Information was used or disclosed or its counsel, at such requesting party's
expense, in such requesting party's pursuit of available remedies against the
person or persons responsible for such unauthorized use or disclosure.
10.5 Injunctive Relief. Each party acknowledges that breach of the
foregoing obligations may cause irreparable injury to the party whose
Confidential Information is disclosed and that such party may seek and obtain
injunctive relief against such breach or threatened breach without prejudice to
any other remedies which may be available to it.
10.6 Survival. The provisions of this Section 10 shall take effect upon
execution of this Agreement and shall survive any termination of this Agreement.
11. REPRESENTATIONS AND WARRANTIES OF SYMANTEC
11.1 General. Except as disclosed in the Symantec Disclosure Letter,
Symantec hereby represents, warrants and covenants to SalesLogix, as follows:
11.1.1 Authority; Enforceability. Symantec has the right, power,
legal capacity and authority to enter into, execute, deliver and perform its
obligations under this Agreement and the Ancillary Agreements and Symantec has
all requisite corporate power and authority to consummate all of the
transactions contemplated by this Agreement and by the Ancillary Agreements. The
execution, delivery and performance
27
of this Agreement and each of the Ancillary Agreements by Symantec have been
duly and validly approved and authorized by all necessary corporate action on
the part of Parent's Board of Directors and shareholders. This Agreement and the
Ancillary Agreements are, or when executed by Symantec will be, valid and
binding obligations of Symantec enforceable in accordance with their respective
terms, subject to the effect, if any, of (a) applicable bankruptcy and other
similar laws affecting the rights of creditors generally and (b) rules of law
governing specific performance, injunctive relief and other equitable remedies.
11.1.2 Brokers and Finders. Other than the firm of Donaldson,
Lufkin & Jenrette, no person or firm has, or will have, any right, interest or
valid claim against Symantec for any commission, fee or other compensation in
connection with the Licenses or exercise of the Purchase Option as a finder or
broker or in any similar capacity as a result of any act or omission by
Symantec, or anyone acting on behalf of Symantec. Symantec hereby agrees to
indemnify and hold SalesLogix harmless in connection with the payment of any
such fees.
11.1.3 Governmental Consents No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any governmental entity on the part of Symantec is required in
connection with the consummation of the transactions contemplated by this
Agreement, except for compliance with the HSR Act.
11.1.4 Litigation. There is no action, suit, proceeding or
investigation pending or currently threatened against Symantec that questions
the validity of this Agreement or the Ancillary Agreements, or the right of
Symantec to enter into this Agreement or the Ancillary Agreements or to
consummate the transactions contemplated hereby or thereby.
11.1.5 Access to Business Records. Parent: (a) has been furnished
access to the business records of SalesLogix and such additional information and
documents as it may have requested, has been given the opportunity to meet with
SalesLogix officials and to have such persons answer questions regarding
SalesLogix's affairs and condition, and is, on the basis of such access,
opportunity and information, able to make an informed investment decision
regarding its investment in the Shares, and (b) is acquiring the Shares being
purchased: (i) for the account of Symantec, and (ii) for investment and not with
a view to, or for sale in connection with, any distribution of said Shares or
with any present intention of distributing or selling said Shares. No
information or knowledge obtained in any investigation pursuant to this Section
shall affect or be deemed to modify any representation or warranty of SalesLogix
contained herein or the conditions to Symantec's obligations to consummate the
acquisition of the Shares.
11.1.6 Compliance with Other Instruments and Laws. The execution,
delivery and performance of this Agreement and the Ancillary Agreements by
Symantec and the consummation of the transactions contemplated hereby and
thereby do not and
28
will not result in a violation or default in any material respect of: (a) any
provision of the charter documents of Symantec or (b) any judgment, order, writ,
or decree applicable to the assets of Symantec, or (c) or constitute a default
(or event which with the giving of notice or lapse of time, or both, would
become a breach, violation or default) under any material contract to which it
is a party which would have a Material Adverse Effect on Symantec. Symantec is
not in violation or default in any material respect of any provision of its
charter documents, or of any instrument, judgment, order, writ, decree or
contract to which it is a party or by which it is bound that could reasonably be
expected to have a Material Adverse Effect on the Licensed Products, or, to the
best of its knowledge, of any provision of any federal or state statute, rule or
regulation applicable to it that could reasonably be expected to have a Material
Adverse Effect on it or the Licensed Products.
11.1.7 Investment Purpose. Parent is acquiring the Shares for
investment for its own account only and not with a view to, or for resale in
connection with, any "distribution" thereof within the meaning of the Securities
Act and applicable state securities laws. Symantec further acknowledges and
understands that the Shares have not been registered under the Securities Act by
reason of a specific exemption therefrom, which exemption depends upon, among
other things, the bona fide nature of its investment intent as expressed herein.
11.1.8 Investment Risk. Parent acknowledges that it is aware that
it will not be entitled to make any offer or sale of any of the Shares for an
indefinite period unless the offering of those Shares are then registered under
the Securities Act or an exemption from such registration is available. Although
it may be possible in the future to make limited public sales of the Shares
without registration in reliance on Rule 144 under the Securities Act, Parent is
aware that there is no assurance that it will remain available for this purpose.
Accordingly, Parent understands that it must bear the economic risk of its
investment in the Shares for an indefinite period.
11.1.9 Accredited Investor. Parent is an "Accredited Investor"
within the meaning of Regulation D promulgated under the Securities Act.
11.1.10 Selected Financial. True and complete copies of certain
financial data statements for the Licensed Products operations, as listed in
SCHEDULE 11.1.10, have been delivered by Symantec to SalesLogix. These
statements: (1) are in accordance with the books and records of Symantec, and
(2) present fairly in all material respects the financial data and cash flows
disclosed therein for the periods indicated in such statements. Symantec makes
no representations whatsoever regarding any projections that may be contained in
any of the aforementioned documents.
11.2 Intellectual Property. Except as disclosed in the Symantec
Disclosure Letter, Symantec hereby represents, warrants and covenants to
SalesLogix as follows (the following representations and warranties apply only
to the most current version, as of the Closing Date, of ACT! 2000 unless
otherwise specifically indicated):
29
11.2.1 Ownership. Except for Third Party Software (for which, in
each case, Symantec warrants it has sufficient rights therein, without the
consent or approval of any third party, to grant the Licenses and fulfill its
obligations under this Agreement, except as disclosed in the Symantec Disclosure
Letter), Symantec owns exclusively, free and clear of all Encumbrances, all
right, title and interest in the current version, as of the Effective Date, of
ACT! 2000, including without limitation all Intellectual Property embodied
therein, with all rights to use and to make, license and sell products and other
property based on, or embodied or described in ACT! 2000. All other versions of
the Licensed Products are provided "as is". Except with respect to Third Party
Software, the Source Code deliverable hereunder shall contain only material that
Symantec is legally entitled to deliver to SalesLogix.
11.2.2 Infringement. To the best of Symantec's knowledge, the use
of the current version, as of the Effective Date, of ACT! 2000 and the
manufacture, licensing and sale thereof does not conflict with, infringe upon or
violate any patent, patent license, patent application, or any pending
application relating thereto, or any copyright or any other Intellectual
Property right of any third person, entity or corporation.
11.2.3 Asserted Claims. There are no pending, or to the best of
Symantec's knowledge, threatened governmental, judicial or adversary
proceedings, hearings, arbitrations, disputes or other claims relating to, and
no notice of infringement has been served upon or otherwise come to the
knowledge of Symantec with respect to, ACT! 2000. The Designated Persons have no
actual knowledge of any infringement by others of the current version of ACT!
2000. There are no pending, or to the actual knowledge of the Designated
Persons, threatened governmental, judicial or adversary proceedings, hearings,
arbitrations, disputes or other claims relating to, and no notice of
infringement has been served upon or otherwise come to the knowledge of
Designated Persons with respect to the current versions of ACT! CE, ACT! for Mac
or ACT! Pilot.
11.2.4 Litigation. There is no action, claim, investigation or
proceeding before any court or governmental agency pending, or to the best of
Symantec's knowledge, threatened against or involving Symantec related to the
current version of ACT! 2000, Other Transferred Assets or Tangible Assets. To
the actual knowledge of the Designated Persons, there is no action, claim,
investigation or proceeding before any court or governmental agency pending or
threatened against or involving Symantec related to current versions of ACT! CE,
ACT! for Mac or ACT! Pilot.
11.2.5 No Encumbrances. Symantec has not and shall not prior to
the Closing Date grant to any third party any rights, including Encumbrances,
that are inconsistent with this Agreement. Notwithstanding the foregoing,
Symantec has granted and may continue to grant licenses for the Licensed
Products in the ordinary course of business.
30
11.2.6 Year 2000 Statements. The Licensed Programs are Year 2000
Compliant provided that all products (e.g. hardware, software, firmware) used in
combination with the Licensed Programs properly exchange date data with it.
11.2.7 Source Code. To the best knowledge of Symantec, the Source
Code of ACT! 2000 has not been disclosed to any person or entity other than
employees and consultants of Symantec, and each of such employees and
consultants is a party to a valid and enforceable agreement containing
confidentiality provisions customary for public companies engaged in the
business of licensing software.
11.2.8 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN
THIS SECTION 11, ALL LICENSED PROGRAMS, LICENSED MATERIALS, SHARED TECHNOLOGY,
THIRD PARTY SOFTWARE, TANGIBLE ASSETS, OTHER TRANSFERRED ASSETS, AND OTHER
DELIVERABLES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND AND ALL IMPLIED
WARRANTIES WITH RESPECT TO THE FOREGOING, INCLUDING BUT NOT LIMITED TO IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY
EXCLUDED.
11.3 Export Compliance. With respect to the Licensed Products, Symantec
has complied, is in full compliance, and will comply through the Closing Date
with the Export Administration Act and regulations promulgated thereunder and
all other laws, regulations, rules, orders, writs, injunctions, judgments and
decrees applicable to the export or re-export of controlled commodities or
technical data.
12. REPRESENTATIONS AND WARRANTIES OF SALESLOGIX
Except as disclosed in the SalesLogix Disclosure Letter, SalesLogix
hereby represents, warrants and covenants to Symantec as follows:
12.1 Organization and Standing: Certificate of Incorporation and
Bylaws. SalesLogix is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. The copies of SalesLogix's
Certificate of Incorporation, as amended, and Bylaws delivered to Symantec are
true, correct and complete copies of the originals, each of which remains in
full force and effect and has not been repealed or amended. SalesLogix is duly
qualified as a foreign corporation in good standing in each jurisdiction in
which the conduct of its business makes such qualification necessary and
appropriate and the failure to so qualify will not materially and adversely
affect SalesLogix, and such qualification remains in effect and has not been
revoked. Except as set forth in the SalesLogix Disclosure Letter, SalesLogix has
no subsidiaries and no equity interest, direct or indirect, in any corporation,
partnership, limited liability company, joint venture or other business entity.
12.2 Corporate Power and Government Consents. SalesLogix has all
requisite corporate power to enter into this Agreement, to transfer the Shares,
to carry out and perform its obligations under the terms of this Agreement, and
to carry out its business
31
both as presently conducted and as presently contemplated. Assuming the accuracy
of Symantec's representations in Section 12.1, no consent, authorization,
approval, permit or order of, or declaration to or filing with any governmental
or regulatory authority (except for the HSR Filing) is required in connection
with: (i) the execution, delivery and performance of this Agreement, or (ii) the
offer, issuance, sale or delivery of the Shares.
12.3 Capitalization. Immediately prior to the Closing, SalesLogix's
authorized, issued and outstanding stock of all classes and all options, rights,
and warrants with respect to such stock shall be as described on SCHEDULE 12.3
attached hereto. All outstanding shares of each class have been duly and validly
issued, and are fully paid and nonassessable and were issued in compliance with
all applicable securities laws.
12.4 Authority; Enforceability; Reservation of Shares. SalesLogix has
the right, power, legal capacity and authority to enter into, execute, deliver
and perform its obligations under this Agreement and the Ancillary Agreements
and SalesLogix has all requisite corporate power and authority to consummate all
of the transactions contemplated by this Agreement and by the Ancillary
Agreements. The execution, delivery and performance of this Agreement and each
of the Ancillary Agreements by SalesLogix have been duly and validly approved
and authorized by all necessary corporate action on the part of its Board of
Directors and shareholders. including without limitation the authorization,
issuance and delivery of the Shares. The resolution of the Board of Directors
authorizing the issuance and sale of the Shares to be sold pursuant to this
Agreement remains in full force and effect and has not been amended or revoked.
This Agreement and the Ancillary Agreements are, or when executed by SalesLogix
will be, valid and binding obligations of SalesLogix enforceable in accordance
with their respective terms, subject to the effect, if any, of (a) applicable
bankruptcy and other similar laws affecting the rights of creditors generally
and (b) rules of law governing specific performance, injunctive relief and other
equitable remedies.
12.5 Issuance of the Shares. The Shares, when issued and transferred to
Symantec in accordance with the terms of this Agreement, will be validly issued,
fully paid and nonassessable and will be free and clear of any lien, claim or
Encumbrance created or suffered by SalesLogix, excepting only restrictions on
transfer described in this Agreement. The shares constitute part of the class of
securities that has been registered under the 1934 Act and has been listed on
the Nasdaq National Stock Market. The issuance of the Shares will not be in
violation of any preemptive right of any security holder of SalesLogix.
SalesLogix shall, at the time of Closing, have paid any issuance, transfer or
stamp tax connected with the sale of the Shares. There are no voting agreements,
voting trusts, rights of repurchase, rights of first refusal or other
restrictions (other than normal restrictions on transfer under applicable
securities laws) applicable to any of SalesLogix's outstanding securities or to
the issuance of the Shares to Symantec hereunder. Except as described in the
SalesLogix Disclosure Letter or the Amended and Restated Investors Rights
Agreement dated June 4, 1998, as amended as of April 22, 1999, SalesLogix is not
under any obligation to register under the Securities Act or under
32
any other securities law, any of its presently outstanding securities or any
securities that may be subsequently issued.
12.6 Financial Statements. True and complete copies of the current
financial statements of SalesLogix, as listed in SCHEDULE 12.6, have been
delivered by SalesLogix to Symantec. Those financial statements: (1) are in
accordance with the books and records of SalesLogix, (2) are prepared in
accordance with generally accepted accounting principles consistently applied,
subject in the case of unaudited interim statements to changes resulting from
year end adjustments, and (3) present fairly in all material respects the
financial position of SalesLogix at the dates, and the results of its operations
and cash flows for the periods, indicated in those statements. As of the date of
the most recent balance sheet listed in SCHEDULE 12.6, SalesLogix did not have
any material debts, liabilities or obligations, whether absolute, accrued,
contingent or otherwise, which are not fully reflected in such balance sheet or
otherwise listed in the financial statements listed on SCHEDULE 12.6, nor has
SalesLogix suffered any Material Adverse Effect since the date of such balance
sheet. All reserves established by SalesLogix and set forth in the such balance
sheet are reasonably adequate. At the date of such balance sheet, there were no
material loss contingencies (as such term is used in United States Statement of
Financial Accounting Standards No. 5 issued by the Financial Accounting
Standards Board in March 1975) which are not adequately provided for in such
balance sheet as required by said Statement No. 5.
12.7 Litigation. There are no legal actions, suits, arbitrations or
other legal, administrative or governmental proceedings pending or, to
SalesLogix's knowledge, threatened against SalesLogix which would have a
Material Adverse Effect on it. There is no action, suit, proceeding or
investigation pending or currently threatened against SalesLogix that questions
the validity of this Agreement or the Ancillary Agreements, or the right of
SalesLogix to enter into this Agreement or the Ancillary Agreements or to
consummate the transactions contemplated hereby or thereby.
12.8 Taxes. SalesLogix has: (a) timely filed all national, state, local
and foreign tax returns required to be filed by it; (b) timely paid all taxes
required to be paid by it in respect of all periods for which returns have been
filed; (c) has timely withheld and paid to the appropriate taxing authorities
all taxes and other payments required to be withheld by SalesLogix from salaries
and other compensatory payments paid or payable by SalesLogix to employees or
other service providers paid or payable by SalesLogix; (d) established an
adequate accrual or reserve for the payment of all taxes payable in respect of
the periods subsequent to the periods covered by the most recent applicable tax
returns; (e) timely made all necessary estimated tax payments; and (f) no
material liability for taxes in excess of the amount so paid or accruals or
reserves so established. SalesLogix is not delinquent in the payment of any tax
or in the filing of any tax returns, and no deficiencies for any tax or any
penalties or interest charges have been threatened, claimed, proposed or
assessed against SalesLogix. SalesLogix has not received any notification that
any issues have been raised (and are currently pending) by any taxing authority
(including but not limited to any income, franchise, sales or use tax authority)
33
regarding SalesLogix and no tax return of SalesLogix has ever been audited by
any national, state, local or foreign taxing agency or authority. To
SalesLogix's knowledge, no tax liens have been filed against any assets of
SalesLogix. SalesLogix has not agreed to any extension or waiver of any statute
of limitations governing when any taxing authority may seek to: (a) recover any
payments for taxes from SalesLogix; or (b) audit any tax return or tax filing
made by SalesLogix.
12.9 Compliance with Laws and Other Instruments. To SalesLogix's best
knowledge, the business and operations of SalesLogix have been and are being
conducted in accordance with all applicable laws, rules, regulations, judgments
and decrees in all material respects. Subject to the accuracy of Symantec's
representations contained in Section 11.1 hereof, the offer, sale and issuance
of the Shares pursuant to the terms of this Agreement are exempt from
registration under Section 5 of the Securities Act and any applicable state
securities law. The execution, delivery and performance of this Agreement and
the Ancillary Agreements by SalesLogix and the consummation of the transactions
contemplated hereby and thereby do not and will not result in a violation or
default in any material respect of: (a) any provision of the charter documents
of SalesLogix or (b) any judgment, order, writ, or decree applicable to the
assets of SalesLogix, or (c) or constitute a default (or event which with the
giving of notice or lapse of time, or both, would become a breach, violation or
default) under any material contract to which it is a party which would have a
Material Adverse Effect on SalesLogix. SalesLogix is not in violation or default
in any material respect of any provision of its charter documents, or of any
instrument, judgment, order, writ, decree or contract to which it is a party or
by which it is bound that could reasonably be expected to have a Material
Adverse Effect on it. Neither the execution, delivery or performance of this
Agreement, nor the offer, issuance, sale or delivery of the Shares, with or
without the giving of notice or passage of time, or both, will (i) violate, or
result in any breach of, or constitute a default under, or result in the
imposition of any Encumbrance upon any asset of SalesLogix pursuant to, any
provision of any corporate charter, bylaws, contract, judgment, decree or other
document or instrument or (ii) will cause SalesLogix to lose the benefit of any
right or privilege it presently enjoys or, to the best of SalesLogix's
knowledge, cause any person who normally does business with SalesLogix to
discontinue to do so on the same basis.
12.10 Permits, Patents, Trademarks, and Trade Secrets. SalesLogix has
all franchises, permits, licenses and other similar authority necessary for the
conduct of its business as now being conducted and as planned to be conducted,
and it is not in material default under any of them. SalesLogix owns or
possesses or has applied for all patents, patent rights, trademarks, trademark
rights, trade names, trade name rights, rights to Intellectual Property and
copyrights necessary to conduct its business as now being conducted and as
planned to be conducted without conflict with or infringement upon any valid
rights of others. Except as disclosed in the SalesLogix Disclosure Letter,
SalesLogix has not received any notice of infringement upon or conflict with the
asserted rights of others.
34
12.11 No Defaults; Insurance. In all material respects, SalesLogix has
performed all obligations required to be performed by it, and is not in default
under, any contract, commitment or instrument, and no event or condition has
occurred which, with the giving of notice or passage of time, or both, would
constitute such a default. SalesLogix has insurance coverage in such amounts and
covering such risks as is usually carried by public companies engaged in similar
businesses and is adequate for the business being conducted, and the properties
owned or leased, by SalesLogix.
12.12 Brokers and Finders. Other than David M. Stastny (Osprey
Ventures, L.P.) and the firm of Hambrecht & Quist, LLC, no person or firm has,
or will have, any right, interest or valid claim against SalesLogix for any
commission, fee or other compensation in connection with the sale of the Shares
as a finder or broker or in any similar capacity as a result of any act or
omission by SalesLogix, or anyone acting on behalf of SalesLogix. SalesLogix
hereby agrees to indemnify and hold Symantec harmless in connection with the
payment of such fees.
12.13 SEC Reporting. SalesLogix has filed all reports, registration
statements, proxy statements, and other materials required to be filed with the
Securities and Exchange Commission (the "Commission") pursuant to the federal
securities laws and rules and regulations thereunder (the "Federal Securities
Laws"). Such reports, registration statements, proxy statements, and other
materials were prepared in all material respects in accordance with the
requirements of the Federal Securities Laws, and none of such materials contains
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. For so long as Symantec owns any of the Shares, SalesLogix shall
file with the Commission all periodic reports, proxy statements, registration
statements and other materials required to be so filed pursuant to the Federal
Securities Laws. The benefits of Rule 144 are currently available with respect
to the common stock of SalesLogix.
12.14 Disclosures. Neither this Agreement (including the Exhibits and
Schedules) nor any writing furnished to Symantec pursuant to or in connection
with this Agreement by SalesLogix or anyone acting on its behalf, including, but
not limited to, the financial statements, contains any untrue statement of a
material fact. Together they do not omit to state any material fact required to
make the statements herein or therein not misleading in the light of the
circumstances under which those statements were made. Any projections contained
in any of the aforementioned documents have been prepared in good faith by
SalesLogix on the basis of assumptions which SalesLogix believes to be
reasonable, but SalesLogix makes no representation that its actual operating
results will conform to any such projections.
12.15 Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any governmental entity on the part of SalesLogix is required in
connection with the consummation of the transactions contemplated by this
Agreement, except for compliance with the HSR Act.
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12.16 Compliance with Other Instruments and Laws. The execution,
delivery and performance of this Agreement and the Ancillary Agreements by
SalesLogix and the consummation of the transactions contemplated hereby and
thereby do not and will not result in a violation or default in any material
respect of: (a) any provision of the charter documents of SalesLogix or (b) any
judgment, order, writ, or decree applicable to the assets of SalesLogix, or (c)
or constitute a default (or event which with the giving of notice or lapse of
time, or both, would become a breach, violation or default) under any material
contract to which it is a party. SalesLogix is not in violation or default in
any material respect of any provision of its charter documents, or of any
instrument, judgment, order, writ, decree or contract to which it is a party or
by which it is bound that could reasonably be expected to have a material
adverse effect on its business, or, to the best of its knowledge, of any
provision of any federal or state statute, rule or regulation applicable to it
that could reasonably be expected to have a material adverse effect on it.
12.17 Export Compliance. SalesLogix has complied, is in full
compliance, and will comply with the Export Administration Act and regulations
promulgated thereunder and all other laws, regulations, rules, orders, writs,
injunctions, judgments and decrees applicable to the export or re-export of
controlled commodities or technical data.
12.18 No Exercise of Registration Rights. No investor under any
existing agreement with SalesLogix that grants such investor the right to have
SalesLogix register such investor's shares of SalesLogix for public resale has
exercised any such rights.
13. EMPLOYEE MATTERS
13.1 Right to Offer Employment. Prior to the Closing, SalesLogix shall
have the right to contact the employees of Symantec listed on EXHIBIT R hereto
(the "Employees") at reasonable times agreed upon by SalesLogix and Symantec for
the purpose of making offers of employment with SalesLogix (in each case such
offers of employment shall be contingent on consummation of the transactions
contemplated by this Agreement). Offers made to Product Group Employees (as
defined on Exhibit R) shall be effective as of the Closing Date, while offers
made to Support Group Employees (as defined on Exhibit R) shall be effective as
of the end of the Transition Period. Symantec shall notify SalesLogix promptly
if the employment of any Employee is terminated after the Effective Date but
prior to the Closing Date in the case of those Employees designated in EXHIBIT R
as Product Group Employees or prior to the end of the Transition Period in the
case of those employees designated in EXHIBIT R as Support Group Employees. Each
such Employee who is employed by Symantec on the Closing Date and who actually
accepts an offer of employment with SalesLogix (or any affiliate designated by
SalesLogix) effective as of or promptly following the Closing Date or at the end
of the Transition Period as a result of an offer of employment made by
SalesLogix is hereafter referred to as a "New Hire". Symantec hereby consents to
the hiring of each New Hire by SalesLogix and waives, with respect to the
employment by SalesLogix of such New Hire, any claims or rights Symantec may
have against SalesLogix with respect thereto and against any such New Hire under
any non-
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competition, non-solicitation, confidentiality or employment agreement with
respect to the Licensed Products. SalesLogix shall not, however, be obligated to
offer employment to any Employee. Such offers of employment as may be extended
by SalesLogix to Employees who are on a workers' compensation-related or
disability leave or a Family Medical Leave Act leave or other statutory leave
shall be conditioned upon their return from such leave in accordance with
Symantec's leave of absence policy. SalesLogix and Symantec shall cooperate with
one another to encourage the Employees to whom SalesLogix makes offers of
employment to accept such offers and transition from one employer to the other
in a smooth and orderly fashion.
13.2 COBRA Coverage. Symantec shall be responsible for any COBRA
coverage continuation notices or similar employee benefit type notices required
to be provided with respect to any New Hires or Excess Employees (as defined
below) or their qualified beneficiaries under applicable laws.
13.3 Employee Benefit Plans. As of the Closing Date with respect to
Product Group Employees and as of the last day of the Transition Period with
respect to Support Group Employees, the New Hires shall cease to be participants
in Symantec's employee benefit plans and shall be treated as terminated
employees under all such plans subject to the vesting, distribution and all
other rights and obligations available to employees who have voluntarily
resigned. SalesLogix shall designate a defined contribution plan that will
accept a direct rollover, within the meaning of Section 401(a)(31) of the Code,
of the account balances of the New Hires in Symantec's 401(k) plan, including
any loan obligation that a New Hire may have in his or her account in the 401(k)
plan. To the extent a New Hire transfers a loan obligation to SalesLogix's plan,
SalesLogix shall accept repayments of such loan amounts and shall otherwise
administer such loans in accordance with their terms and ERISA until such loan
amounts are repaid or are foreclosed upon.
13.4 WARN Compliant. In the event Symantec affects a reduction or
cessation of the operations or workforce that exists to service or support the
Licensed Products prior to or subsequent to the Closing Date that would be
subject to the Workers' Adjustment and Retraining Act ("WARN"), Symantec shall
provide notice to SalesLogix and perform and undertake all acts as may be
necessary to comply with the applicable provisions, if any, of WARN. In the
event that SalesLogix effects a reduction or cessation of the operations or
workforce that exists to service the Licensed Products subsequent to the Closing
Date that would be subject to WARN, SalesLogix shall perform and undertake all
acts as may be necessary to comply with the applicable provisions of WARN.
13.5 Immigration, Visas. SalesLogix shall be responsible for obtaining
any required visas or other immigration approvals to allow New Hires to become
employed by SalesLogix at whatever location is specified by SalesLogix. Symantec
shall cooperate with and provide information reasonably requested with respect
to such efforts.
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13.6 Future Claims. (a) SalesLogix shall be liable for and obligated to
pay and indemnify, and hold Symantec and its Affiliates harmless from, any and
all expenses, contracts, agreements, commitments, obligations, claims, suits,
and other liabilities of any nature whatsoever, whether known or unknown,
accrued or not accrued, fixed or contingent, or arising hereafter, directly or
indirectly, with respect to (i) the employment by SalesLogix or termination of
employment by SalesLogix of any New Hire after the Closing Date, whether in
connection with the transactions contemplated hereby or otherwise; (ii) any
claims of discrimination under state or federal law provided such claims arise
from the New Hire's employment or service with or termination by SalesLogix
after the Closing Date; (iii) any other claims or obligations arising out of the
terms and conditions of employment of any New Hire by SalesLogix whether for
salary, wages, bonuses, profit sharing, commissions, severance, vacation pay,
sick pay or otherwise; or (iv) any duties or obligations of SalesLogix or
administrators under any existing or future employee benefit plans or
arrangements maintained by SalesLogix with respect to its employees; (b)
Symantec shall be liable for and obligated to pay and indemnify, and hold
SalesLogix and its Affiliates harmless from, any and all expenses, contracts,
agreements, commitments, obligations, claims, suits, and other liabilities of
any nature whatsoever, whether known or unknown, accrued or not accrued, fixed
or contingent, or arising hereafter, directly or indirectly, with respect to (i)
the employment by Symantec or termination of employment by Symantec of any
current or future employee or consultant of Symantec or any of its Affiliates,
whether in connection with the transactions contemplated hereby or otherwise
(except as to 50% of the severance payments to Excess Employees as provided in
Section 13.8); (ii) any claims of discrimination under state or federal law
provided such claims arise from the New Hire's employment or service with or
termination by Symantec prior to the Closing Date; (iii) any other claims or
obligations arising out of the terms and conditions of employment of any Excess
Employee (as defined below) by Symantec whether for salary, wages, bonuses,
profit sharing, commissions, severance (subject to Section 13.8), vacation pay,
sick pay or otherwise; (iv) any duties or obligations of Symantec or
administrators under any existing or future employee benefit plans or
arrangements maintained by Symantec with respect to its employees; or (v) any
present or future obligations or liabilities of Symantec to prior, existing or
future employees of Symantec (subject to Section 13.8).
13.7 Employment Taxes. Symantec and SalesLogix shall each be
responsible for any withholding or employment Taxes with respect to any New
Hires which accrue or become payable during the period of such New Hire's
employment or service with such party or arise out of the termination of such
person's employment with such party. Symantec and SalesLogix shall each be
responsible for filing all United States and non-U.S. federal, state and local
employment Tax returns with respect to New Hires attributable to periods of
employment or service with such party.
13.8 Termination of Employment; Responsibility for Severance. The
parties acknowledge that (i) those Employees not offered employment by
SalesLogix on terms comparable (including compensation and benefits) to the
terms upon which such
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Employees are employed by Symantec as of the Effective Date and whom Symantec
does not reassign to another position within Symantec's organization and (ii)
those Employees who are offered employment by SalesLogix who do not accept such
offers and whom Symantec does not reassign to another position within Symantec's
organization (collectively the "Excess Employees") may be terminated by
Symantec. SalesLogix hereby covenants and agrees with Symantec to reimburse
Symantec for one-half of the following payments made by Symantec with respect to
Excess Employees: (x) severance payments pursuant to Symantec's severance
policy, a copy of which has been provided to SalesLogix (provided, however, that
SalesLogix shall not be required to pay any portion of paid time off provided to
such Excess Employees), (y) COBRA benefit expenses and (z) outplacement
expenses, if any. Symantec shall issue an invoice to SalesLogix within
forty-five (45) days of the Closing Date specifying the amount, if any, owed to
Symantec by SalesLogix under this Section 13.8 with respect to Product Group
Employees, which invoice shall be due and payable within ten (10) days of
receipt by SalesLogix. Symantec shall issue an invoice to SalesLogix within
forty-five (45) days of the last day of the Transition Period specifying the
amount, if any, owed to Symantec by SalesLogix under this Section 13.8 with
respect to Support Group Employees, which invoice shall be due and payable
within ten (10) days of receipt by SalesLogix.
13.9 No Solicitation. Except as provided by law, for a period of
eighteen (18) months after the Closing Date, SalesLogix shall not actively
solicit any employee of Symantec to terminate his or her employment with
Symantec or to become an employee of SalesLogix. For purposes of this Section,
the term "actively solicit" shall not mean or include the placement of general
advertisements, participation in career days, or responding to unsolicited
inquiries, applications or resumes.
13.10 No Rights Conferred Upon Employees. Nothing in this Section 13 or
any other provision of this Agreement shall confer any rights or remedies on any
employee (including without limitation any Employee, New Hire or Excess
Employee) of Symantec and no employee of Symantec (including without limitation
any Employee, New Hire or Excess Employee) shall be a third party beneficiary
with respect to any covenant, representation or agreement in this Agreement.
13.11 Survivability. Each of the agreements and covenants set forth in
this Section 13 shall survive the Closing.
13.12 Other Employee Related Matters. Certain other employee related
matters shall be handled as provided in the Transition Agreement.
14. INDEMNIFICATION
14.1 Loss Defined; Indemnitees. For purposes of this Section 14, the
term "LOSS" will mean and include any and all Liability, loss, damage, claim,
expense, cost, fine, fee, penalty, obligation, injury or amounts paid in
settlement, including, without limitation, those resulting from any and all
claims, actions, suits, demands, assessments, investigations, judgments, orders,
awards, arbitrations, settlements or other proceedings,
39
together with reasonable costs and expenses, including the reasonable attorneys'
and experts' fees, court costs, arbitration costs, filing fees and other legal
costs and expenses relating thereto. As used in this Section 14, the term
"SalesLogix Indemnitees" means and includes SalesLogix, any present or future
officer, director, employee, affiliate, stockholder or agent of SalesLogix and
its or their respective successors and assigns. As used in this Section 14, the
term "Symantec Indemnitees" means and includes Symantec and any present or
future officer, director, employee, affiliate, stockholder or agent of Symantec
and its respective successors and assigns.
14.2 Indemnification by Symantec. Symantec agrees, subject to the other
terms, conditions and limitations of this Agreement (including the provisions of
Section 14.5 hereof), to indemnify SalesLogix and each of the other SalesLogix
Indemnitees against, and to hold SalesLogix and each of the other SalesLogix
Indemnitees harmless from, all Loss arising out of, resulting from, caused by or
attributable to:
(a) the failure of any representation or warranty of Symantec
contained in this Agreement (including any schedule or exhibit hereto), to be
true and correct as of the Closing Date, and even though disclosed, the Simple
Sophistication Claim disclosed in the Symantec Disclosure Letter;
(b) the breach or violation by Symantec of any covenant or
agreement of Symantec contained in this Agreement (including any schedule or
exhibit hereto) or the Ancillary Agreements required to be performed after the
Closing Date; and
(c) the operation of the business of exploiting the Licensed
Products prior to the Closing Date and all liabilities associated therewith
other than the Transferred Liabilities.
14.3 Indemnification by SalesLogix. SalesLogix agrees, subject to the
other terms, conditions and limitations of this Agreement (including the
provisions of Section 14.5 hereof), to indemnify Symantec and each of the other
Symantec Indemnitees against, and to hold Symantec and each of the other
Symantec Indemnitees harmless from, all Loss arising out of, resulting from,
caused by or attributable to:
(a) the failure of any representation or warranty of SalesLogix
contained in this Agreement (including any schedule or exhibit hereto), to be
true and correct as of the Closing Date;
(b) the breach or violation by SalesLogix of any covenant or
agreement of SalesLogix contained in this Agreement (including any schedule or
exhibit hereto), the Ancillary Agreements required to be performed after the
Closing Date;
(c) the operation of the business of exploiting the Licensed
Products and Derivative Products after the Closing Date; and
(d) the Transferred Liabilities.
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14.4 Procedures for Indemnification.
(a) As used herein, an "Indemnified Party" means a SalesLogix
Indemnitee seeking indemnification pursuant to Section 14.2 or a Symantec
Indemnitee seeking indemnification pursuant to Section 14.3 hereof. The
Indemnified Party agrees to give the other party ("Indemnitor") prompt written
notice of any event, or any claim, action, suit, demand, assessment,
investigation, arbitration or other proceeding by or in respect of a third party
(a "Third Party Claim") of which it has knowledge, for which such Indemnified
Party is entitled to indemnification under this Section 14 (including in any
case copies of any summons, complaint or other pleading which may have been
served on it and any written claim, demand, invoice, billing or other document
evidencing or asserting the same). No delay on the part of an Indemnified Party
in giving the Indemnitor notice of a Third Party Claim shall relieve the
Indemnitor from any obligation hereunder unless (and then solely to the extent)
that the Indemnitor is prejudiced thereby.
(b) The Indemnitor will have the right, at its sole cost and
expense, to defend the Indemnified Party against the Third Party Claim with
counsel of the Indemnitor's choice that is reasonably satisfactory to the
Indemnified Party so long as (i) the Indemnitor notifies the Indemnified Party
in writing within ten (10) days after the Indemnified Party has given notice of
the Third Party Claim that the Indemnitor intends to undertake such defense,
(ii) the Indemnitor provides each Indemnified Party with evidence reasonably
acceptable to the Indemnified Party that the Indemnitor will have the financial
resources to defend against the Third Party Claim and fulfill its
Indemnification obligations hereunder, (iii) the Third Party Claim involves only
money damages and does not seek an injunction or other equitable relief, (iv)
settlement of, or an adverse judgment with respect to, the Third Party Claim is
not, in the good faith judgment of the Indemnified Party, likely to establish a
precedential custom or practice materially adverse to the continuing business
interests of the Indemnified Party, (v) the Indemnitor conducts the defense of
the Third Party Claim actively and diligently; and (vi) the counsel chosen by
the Indemnitor does not have any conflict of interest in representing the
interests of the Indemnified Party.
(c) So long as the Indemnitor is conducting the defense of the
Third Party Claim in accordance with Section 14.3 (b) above, (i) the Indemnified
Party may retain separate co-counsel and participate in the defense of the Third
Party Claim at its own cost and expense (except as provided below) and shall
have the right to receive copies of all pleadings, notices and communications
with respect to the Third Party Claim to the extent no privilege is thereby
waived, (ii) the Indemnified Party may participate in settlement negotiations
with respect to the Third Party Claim, and (iii) the Indemnitor will not consent
to the entry of any judgment or enter into any settlement with respect to the
Third Party Claim unless (A) each affected Indemnified Party consents thereto in
writing (which consent will not unreasonably be withheld) or (B) the settlement,
compromise or consent includes an unconditional release from all Liability with
respect to the claim in favor of each affected Indemnified Party.
Notwithstanding the foregoing,
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if an Indemnified Party is offered a written settlement proposal by a third
party that has as its sole component the payment of money by the Indemnified
Party and the Indemnitor recommends to the Indemnified Parties in writing that
they accept such settlement proposal (the "Sanctioned Settlement") and the
Indemnified Parties refuse to accept such settlement proposal, in such event if
the ultimate settlement terms agreed to by the Indemnified Party with such third
party or the final monetary damages award against the Indemnified Parties after
exhaustion of all appeals either referred to as (the "Final Settlement Amount"),
is greater than the amount of the Sanctioned Settlement, the Indemnified Party
shall be responsible for the differential between the Final Settlement Amount
and the Sanctioned Settlement and the Indemnitor's liability shall be limited to
the amount specified in the Sanctioned Settlement.
(d) If the Indemnitor does not elect to assume control of or
otherwise participate in the defense or settlement of any Third Party Claim, or
if the Indemnitor does so elect but any of the conditions in Section 14.3 (b)
above is or becomes unsatisfied, or if the Indemnitor ceases to any time to
actively defend the Third Party Claim, then, (i) the Indemnified Party may
defend against and consent to the entry of any judgment or enter into any
settlement with respect to the Third Party Claim, provided, however, that the
Indemnitor (A) shall have the right to receive copies of all pleadings, notices
and communications with respect to the Third Party Claim so long as the receipt
of such documents by the Indemnitor does not affect any attorney-client
privilege relating to the Indemnified Party, and (B) may participate in
settlement negotiations with respect to the Third Party Claim and the
Indemnified Party shall not enter into any settlement without the prior written
consent of the Indemnitor (which consent shall not be unreasonably withheld),
(ii) the Indemnitor will reimburse the Indemnified Party promptly and
periodically for all costs and expenses incurred in defending against the Third
Party Claim (including without limitation reasonable attorneys' and experts'
fees and expenses and court and arbitration costs), and (iii) the Indemnitor
will remain responsible for any Loss the Indemnified Party may suffer resulting
from, arising out of, relating to or caused by the Third Party Claim to the
fullest extent provided in this Section 14.
14.5 Limitations on Indemnification.
(a) Limits on Symantec Indemnification. Symantec shall not be
required to provide indemnification under this Section 14 unless and until the
aggregate Loss for which one or more SalesLogix Indemnitees seeks
indemnification hereunder exceeds an aggregate of Two Hundred Thousand Dollars
($200,000) (the "Symantec Basket"), in which event Symantec shall be liable to
indemnify the SalesLogix Indemnitees for all Loss in excess of the Symantec
Basket. The maximum aggregate Loss recoverable by SalesLogix Indemnitees
(considered together as a group) against Symantec under this Section 14 shall
not exceed Twelve Million Dollars ($12,000,000) (the "Symantec Cap").
Notwithstanding the foregoing, (i) the Symantec Basket and the Symantec Cap
shall not apply to that certain potential infringement matter disclosed in the
Symantec Disclosure Letter and (ii) SalesLogix and any other Indemnified Party
shall
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be entitled to recover any Loss arising from fraud or willful misconduct on the
part of Symantec.
(b) Limits on SalesLogix Indemnification. SalesLogix shall not be
required to provide indemnification under this Section 14 unless and until the
aggregate Loss for which one or more SalesLogix Indemnitees seeks
indemnification hereunder exceeds an aggregate of Two Hundred Thousand Dollars
($200,000) (the "SalesLogix Basket"), in which event SalesLogix shall be liable
to indemnify the Symantec Indemnitees for all Loss in excess of the SalesLogix
Basket. The maximum aggregate Loss recoverable by Symantec Indemnitees
(considered together as a group) against SalesLogix under this Section 14 shall
not exceed Twelve Million Dollars ($12,000,000) (the "SalesLogix Cap").
Notwithstanding the foregoing, (i) Symantec and any other Indemnified Party
shall be entitled to recover any Loss arising from fraud or willful misconduct
on the part of Symantec, and (ii) the SalesLogix Cap and the SalesLogix Basket
shall not be applicable to the payment of Royalties due hereunder which must be
paid to and may be recovered by Symantec irrespective of any other claims made
or recoveries received pursuant to the provisions of this Section 14.
(c) Time Limits. Notwithstanding anything herein to the contrary,
no claim for indemnification under this Section 14 may be brought after the
first (1st) anniversary of the Closing Date; provided, however, that with
respect to the representations and warranties regarding Taxes a claim for
indemnification under this Section 14 may be brought until the end of the
statutory period. To preserve a claim for indemnification under this Section 14,
an Indemnified Party need only provide written notice in reasonable detail of
such claim to the Indemnitor prior to the expiration of the applicable time
limit described in the preceding sentence; and if an Indemnified Party provides
such notice prior to the expiration of such time limit, such Indemnified Party
may pursue such claim for indemnification after the expiration of such time
limit. Notwithstanding the foregoing, SalesLogix shall indemnity Symantec and
each of the other Symantec Indemnitees against, and hold Symantec and each of
the other Symantec Indemnitees harmless from, all Loss arising out of, resulting
from, caused by or attributable (i) to the operation by SalesLogix of the
business of exploiting the Licensed Products and Derivative Products after the
Anniversary Date and (ii) the Transferred Liabilities; provided, however, that
such obligations shall cease as of the date the Purchase Option or Quit Claim
Option is exercised.
14.6 Indemnity After the Royalty Term. If the Licenses convert to
perpetual Licenses under Section 9.1 and neither the Purchase Option nor the
Quit Claim Option is exercised, then the indemnity obligations imposed by this
Section 14 upon SalesLogix shall be without any time limits whatsoever and
thereafter shall not be subject to the SalesLogix Basket or the SalesLogix Cap.
14.7 No Setoff against Royalties. SalesLogix shall not be entitled to
set off against the Royalties payable to Symantec hereunder any claims for Loss
or other claims for indemnity.
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14.8 Remedy Limitations. Except with respect to the payment obligations
under Section 6.6 and 13.8 of this Agreement and the payment obligations under
the Transition Agreement, the foregoing provisions of this Section 14 shall be
the sole remedy of an indemnified party for: (a) any failure of a representation
or warranty as described in Section 14.2(a) or Section 14.3(a); (b) the matters
described in Section 14.2(c), Section 14.3(c) or Section 14.3(d); or (c) any
breach or violation of any covenant or agreement contained in this Agreement or
the Ancillary Agreements required to be performed after the Closing Date under
Section 14.2(b) or Section 14.3(b). Notwithstanding the foregoing, if a
post-Closing breach or violation as described in Section 14.2(b) or Section
14.3(b) does not give rise to an indemnification right because of the passage of
the applicable time limit set forth in Section 14.5(c), then the party against
whom such breach is committed shall retain the right to bring a breach of
contract claim for appropriate damages and/or equitable relief; provided,
however, that such claim shall be subject to the Symantec Basket and Symantec
Cap or the SalesLogix Basket and SalesLogix Cap, as the case may be, to the same
extent as if such claim had been brought as a claim for indemnification under
Section 14.2(b) or Section 14.3(b). Nothing contained in this Section 14.8 shall
be deemed to restrict (i) a party's ability to seek and obtain injunctive
relief, (ii) a party's ability to terminate this Agreement in accordance with
its terms, or (iii) Symantec's ability to recover unpaid Royalties.
15. ASSIGNMENT AND SUBLICENSE
15.1 Successors and Assigns. This Agreement is binding on the
successors and assigns of the parties; provided, that this Agreement may not be
assigned (by operation of law or otherwise) by either party without the prior
written consent of the other party, except as provided in this Section 15.
15.2 Assignment by Symantec. Notwithstanding Section 15.1, the rights
and obligations of Symantec under this Agreement may be assigned, in whole or in
part, without the consent of SalesLogix, by Symantec to any corporation which is
a direct or indirect wholly-owned subsidiary of Symantec, any corporation that
is the parent of Symantec, any entity which is the surviving entity of a merger,
consolidation or reorganization in which Symantec participates, or any
corporation or other person or business entity which acquires all or
substantially all of the Licensed Products from Symantec. In the event that
Symantec transfers all or substantially all of the Licensed Products to a third
party outside the context of a merger, consolidation, reorganization or sale of
substantially all of its assets, the Purchase Option granted to SalesLogix in
Section 9.2 shall, at the option of SalesLogix, accelerate and become
exercisable during the thirty (30) period following the date of such transfer of
the Licensed Products. In addition, Symantec may assign, in whole or in part,
without the consent of SalesLogix, its right to receive Royalties hereunder.
15.3 Assignment by SalesLogix. Notwithstanding Section 15.1, the rights
and obligations of SalesLogix under this Agreement may be assigned, in whole or
in part, without the consent of Symantec, by SalesLogix to any corporation which
is a direct or
44
indirect wholly-owned subsidiary of SalesLogix, any corporation that is the
parent of SalesLogix, any entity which is the surviving entity of a merger,
consolidation or reorganization in which SalesLogix participates, or any
corporation or other person or business entity which acquires all or
substantially all of assets of SalesLogix; provided, however, that such
surviving entity or acquirer agrees in writing to assume all of the obligations
of SalesLogix under this Agreement, the Purchase Escrow Agreement, the
Derivative Products Escrow Agreement and, if such assignment occurs during the
Transition Period, the Transition Agreement.
16. DISPUTE RESOLUTION
16.1 Management Negotiation. SalesLogix and Symantec shall attempt to
resolve disputes between SalesLogix and Symantec arising out of or in connection
with this Agreement and/or the Ancillary Agreements through good faith
negotiations as provided herein. The parties agree that disputes shall be fully
discussed by the functional representatives of SalesLogix and Symantec involved
in the dispute in an attempt to achieve a prompt resolution of such dispute. In
the event that such dispute shall not be promptly resolved by the mutual
agreement of the functional representatives of SalesLogix and Symantec, the
dispute shall be submitted to the Chief Financial Officers of each of SalesLogix
and Symantec. Such officers shall meet and fully discuss such dispute in an
attempt to achieve a prompt resolution of the dispute. If such dispute is not
promptly resolved by the mutual agreement of the Chief Financial Officers of the
parties, each of SalesLogix and Symantec shall be free to exercise any of the
remedies available to it (i) pursuant to the terms of this Agreement or (ii)
otherwise at law or in equity, subject to the terms of this Agreement.
16.2 Good Faith. Each of SalesLogix and Symantec agrees to act
reasonably and in good faith in connection with all matters arising out of or in
connection with this Agreement or the Ancillary Agreements that are submitted to
the dispute resolution process set forth in this Section.
16.3 Injunctive Relief. Nothing contained herein shall be deemed to
prohibit, restrict or in any way hinder one party from seeking and obtaining
injunctive or equitable relief, whether temporary, preliminary or permanent,
against the other.
16.4 Waiver of Jury Trial. The parties hereby waive trial by jury in
any litigation in any court with respect to, in connection with, or arising out
of this Agreement or the Ancillary Agreements or the transactions contemplated
thereby.
17. GENERAL TERMS AND CONDITIONS
17.1 Time of the Essence. Time is of the essence of this Agreement.
17.2 Governing Law; Jurisdiction and Venue. The validity and
performance of this Agreement shall be governed by and construed in accordance
with the laws of the State of California, excluding that body of law applicable
to choice of law. The parties
45
consent and submit and agree not to object to the jurisdiction and venue of the
state and federal courts located in San Francisco and Santa Clara Counties,
California and in Maricopa County, Arizona for proceedings relating to
enforcement of, or any other remedy under, this Agreement and the Ancillary
Agreements.
17.3 Headings. Headings included in this Agreement are for convenience
only and are not to be used to interpret this Agreement.
17.4 Waiver. The failure of either party to enforce at any time any of
the provisions hereof or exercise any right or option hereunder shall not be
construed to be a waiver of the right of such party thereafter to enforce any
such provisions or exercise such right or option.
17.5 No Joint Venture. This is a license agreement. No agency,
partnership, joint venture or other joint relationship is created hereby.
SalesLogix does not extend to Symantec or Symantec's agents or distributors any
authority of any kind to bind SalesLogix in any respect whatsoever. Symantec
does not extend to SalesLogix, its agents or distributors, or sublicensees any
authority of any kind to bind Symantec in any respect whatsoever.
17.6 Attorneys' Fees. In any litigation or other action between
parties, the prevailing party shall be entitled to reasonable attorneys' fees
and all costs of proceedings, experts, investigations and related expenses,
incurred in enforcing, or pursuing other remedies with respect to, this
Agreement.
17.7 Expenses. All costs and expenses, including, without limitation,
fees and disbursements of counsel, financial advisors and accountants, incurred
in connection with this Agreement and the transactions contemplated hereby shall
be paid by the party incurring such costs and expenses, whether or not the
Closing shall have occurred.
17.8 Public Announcement. Upon execution of this Agreement, Symantec
and SalesLogix will issue a press release approved by such parties announcing
the transaction. Thereafter, each party may issue such press releases, and make
such other disclosures regarding the transactions contemplated hereby, as it
determines are required under applicable securities laws or regulatory rules,
but shall first, when practicable, consult with the other and provide the other
party with an opportunity to comment on any such press release. Prior to the
publication of the press release issued upon execution of this Agreement,
neither party shall make any public announcement relating to this Agreement or
the transactions contemplated hereby (except as may be required by applicable
securities laws and the rules of any securities exchange on which the shares of
such party are listed).
17.9 Consents by Symantec. Whenever under this Agreement the consent of
Symantec is not to be unreasonably withheld or delayed, Symantec shall respond
promptly and shall use its good faith efforts to respond as soon as practicable.
To expedite Symantec's review and response to any such request for consent, the
request for
46
consent shall be directed by SalesLogix to the Legal Department of Symantec,
addressed to the attention of its General Counsel.
17.10 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated hereby be consummated as originally
contemplated to the greatest extent possible.
17.11 Entire Agreement; Modification. This Agreement, together with the
Exhibits, Schedules and Disclosure Letters hereto and the Ancillary Agreements,
constitutes the entire agreement between the parties with respect to the
transactions contemplated herein, and supersedes all proposals, oral or written,
all negotiations, conversations or discussions between the parties relating to
this Agreement including but not limited to the September 13, 1999 letter
agreement and the non-binding Term Sheet between the parties and that certain
Nondisclosure Agreement between the parties dated July 7, 1999, and all past
course of dealing or industry custom, and no representations, warranties,
inducements or oral agreements have been made by any party except as expressly
set forth herein or in the Ancillary Agreements. This Agreement may not be
changed, modified or rescinded, except in writing, signed by both parties
hereto, and any attempt at oral modification of this Agreement shall be void and
of no effect.
17.12 Specific Performance. SalesLogix and Symantec each acknowledges
and agrees that the parties' respective remedies at law for a breach or
threatened breach of any of the provisions of this Agreement would be inadequate
and, in recognition of that fact, agrees that, in the event of a breach or
threatened breach by SalesLogix or Symantec of the provisions of this Agreement,
in addition to any remedies at law, Symantec and SalesLogix, respectively,
without posting any bond, shall be entitled to obtain equitable relief in the
form of specific performance, a temporary restraining order, a temporary or
permanent injunction or any other equitable remedy which may then be available.
17.13 Notices. All notices required or permitted under this Agreement
shall be in writing and shall be effective only upon the third (3rd) day after
mailing, if mailed by registered mail, return receipt requested, upon the next
day after mailing, if mailed by express courier service (such as FedEx or UPS
Overnight), or upon delivery, if personally delivered and receipted for or
delivered by facsimile as follows: SalesLogix Corporation, at its address set
forth in the first paragraph of this Agreement, Attention: Chief Financial
Officer, Fax: (480) 368-3797, with a copy to Osborn Maledon, P.A. 2929 North
Central, Suite 2100, Phoenix, Arizona 85012, Attention: Thomas H. Curzon, Fax:
(602) 640-6067 or as follows: Symantec Corporation at its address set forth in
the first
47
paragraph of this Agreement, Attention: General Counsel, Fax: (408) 446-8121,
with a copy to Fenwick & West LLP, Two Palo Alto Square, Palo Alto, California
94306, Attention: Gordon K. Davidson, Fax: (650) 494-1417. Either party may
change its address for service of written notice to the other.
17.14 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
48
IN WITNESS WHEREOF, SalesLogix, Parent and Subsidiary have executed
this Agreement as of the Effective Date.
SALESLOGIX CORPORATION SYMANTEC CORPORATION
By /s/ Patrick M. Sullivan By /s/ Gregory Myers
-------------------------------- -----------------------------------
Name Patrick M. Sullivan Name
------------------------------- ----------------------------------
Title CEO Title
------------------------------ ---------------------------------
SYMANTEC LIMITED
By /s/ Derek Witte
------------------------------------
Name
----------------------------------
Title
---------------------------------
49
List of Attached Exhibits:
- --------------------------
Exhibit A: Licensed Programs
Exhibit B: Marks
Exhibit C: Other Transferred Assets (including Assumed Contracts and
Sublicensed Contracts)
Exhibit D: Tangible Assets
Exhibit E: Transferred Liabilities
Exhibit F: Transition Agreement
Exhibit G: Shared Technology
Exhibit H: Symantec Trademark Guidelines
Exhibit I: Deliverables
Exhibit J: Third Party Consents
Exhibit K: Purchase Escrow Agreement
Exhibit L: Opinion of Symantec's Counsel
Exhibit M: Registration Rights Agreement
Exhibit N: Stockholder Agreement
Exhibit O: Opinion of SalesLogix's Counsel
Exhibit P: Form of Stock Certificate
Exhibit Q: Symantec Product Offerings
Exhibit R: Employees (including Product Group Employees and Support
Group Employees)
Exhibit S: Designated Persons
Exhibit T: Third Party Software
List of Attached Schedules:
Schedule 2.1: Licenses Granted
Schedule 2.6: Domain Names
Schedule 6.3: Symantec Fiscal Quarter End Dates
Schedule 11.1.10: List of Symantec Financial Schedules Provided to
SalesLogix
Schedule 12.3 SalesLogix Capitalization
Schedule 12.6 List of SalesLogix Financial Statements Provided to
Symantec
50
EXHIBIT A
LICENSED PRODUCTS
- - ACT! 2000 for Windows 95/98/NT
- - ACT! 2.8 for Macintosh
- - ACT! 1.01 for Windows CE
- - ACT! Palm Pilot Link 1.01
51
EXHIBIT C
OTHER TRANSFERRED ASSETS
- - All rights under Assumed Contracts arising on and after the Closing Date
- - All prepaid royalties relating to periods on or after the Closing Date
under any Sublicensed Contract
Assumed Contracts
- - All support contracts for the Licensed Products with the terms and
conditions attached as Exhibit C-1, or with terms and conditions that are
not materially different thereto
- - All upgrade insurance contracts for the Licensed Products with the terms
and conditions attached as Exhibit C-2, or with terms and conditions that
are not materially different thereto
- - Software Agreement dated 11/21/97 between Symantec and Ergo Training, Inc.
- - Letter Agreement dated 1/2/97 between Symantec and iMarket, Inc.
- - Letter of Understanding dated 6/21/99 between Symantec and InstallShield
Software Corporation
- - Software License and Marketing Agreement dated 6/20/99 between Symantec and
Paragon Software
- - MyProspects Co-Branding Agreement dated 5/27/99 between Symantec and My
Software Company
SUBLICENSED CONTRACTS
- - Letter Agreement dated 7/13/95 between Symantec and ACT Networks Inc.
- - Letter Agreement dated 1/6/98 between Symantec and Archer Software Inc.
- - License and Marketing Agreement dated 6/18/99 between Symantec and Dale
Carnegie & Associates, Inc.
- - Software License Agreement dated 5/31/95 between Symantec and Streetwise
Software
- - Directory Distribution Agreement dated 12/__/97, and amendment thereto
dated 6/4/99, between Symantec and Yahoo, Inc.
- - License Agreement dated 7/25/91 between Symantec and Houghton Mifflin
Company and Contact Software International (as amended pursuant to
Amendment I dated as of January 1, 1994, Amendment II dated as of February
24, 1994 and Amendment III dated as of March 22, 1999)
- - Software License and Distribution Agreement dated 6/15/99 between Symantec
and AT&T
- - EarthLink Network TotalAccess Distribution Agreement dated 6/11/99 between
Symantec and EarthLink Network, Inc.
- - Software License Agreement dated 11/__/97 between Symantec and ViaGrafix
Corporation
- - Software License Agreement dated 7/16/99 between Symantec and On the Go
Software, Inc.
- - Symantec Web Site Access Agreement dated 10/8/97 between Symantec and
Bigfoot Partners, L.P.
- - Symantec Web Site Access Agreement between Symantec and HotData, Inc.
- - Symantec Web Site Access Agreement Symantec and OneLook Dictionary
- - Royalty Agreement dated 2/1/92 between Eshani Corporation and Contact
Software International, Inc.
52
EXHIBIT E
TRANSFERRED LIABILITIES
- - All obligations under the Assumed Contracts and the Sublicensed Contracts
arising on or after the Closing Date
- - All obligations relating to the ACT Certified Consultant Program arising on
or after the Closing Date
- - All obligations relating to the ACT Add-On Catalog arising on or after the
Closing Date
- - All obligations relating to the ACT Authorized Training Center Program
arising on or after the Closing Date
- - All end user rebates or other promotions with respect to the Licensed
Products and any related out-of-pocket fulfillment charges other than those
which become payable by Symantec before the end of the Transition Period
- - All obligations relating to returns of the Licensed Products arising on or
after the Closing Date, other than (i) returns of obsolete versions of the
Licensed Products, (ii) returns designated by Symantec's distributors and
resellers as "stockbalancing" returns during the Transition Period to the
extent that they exceed Symantec's net channel inventory deferrals for the
Licensed Products as stated on Symantec's balance sheet as of the Closing
Date, and (iii) returns for any other reason within the 60-day period after
the Closing Date
- - All Licensed Product support obligations to end users with the following
terms and conditions: Free support for all registered users of the Licensed
Products for 90 days from the date of their first call. Lines are open
Monday through Friday, 7 a.m. to 4 p.m., Pacific Standard
- - All Licensed Product support obligations to end users with the following
terms and conditions: Complimentary sixty- (60-) day standard Silver
support is provided with the Licensed Products to help end users install
and run the Licensed Products. Technical Support can answer questions
relating to installation, configuration, compatibility and general usage.
With Silver support, customers go to the head of the queue when calling
Technical Support. Silver support gives customers extended access to the
support team for a further 6 months. Silver support telephone lines are
open from Monday to Friday (excluding public holidays) between 9am and 5pm
GMT (9am and 5pm CET) to enable customers to reach a Symantec support
representative quickly and easily.
53
EXHIBIT F
TRANSITION AGREEMENT
This TRANSITION AGREEMENT (this "AGREEMENT") is made as of
___________________, by and between Symantec Corporation, a Delaware corporation
with its principal offices located at 20330 Stevens Creek Boulevard, Cupertino,
California 95014 ("SYMANTEC"), Symantec Limited, a wholly-owned limited
liability company organized under the laws of Ireland, with its principal
offices located at Ballycoolin Business Park, Blanchardstown, Dublin 15,
Ireland, and SalesLogix Corporation, a Delaware corporation with its principal
offices located at 8800 North Gainey Center Drive, Suite 200, Scottsdale,
Arizona 85258 (the "COMPANY").
R E C I T A L S
A. Pursuant to a Software License Agreement (the "SOFTWARE LICENSE
AGREEMENT") dated as of December 6, 1999 by and between Symantec and the
Company, Symantec shall license to Company the Licensed Products, as defined in
the Software License Agreement;
B. In accordance with Section 4.9 of the Software License Agreement,
Symantec and the Company have agreed to enter into a Transition Agreement, which
agreement shall specify certain administrative services which Symantec shall
provide to the Company (including facilities, information services, sales,
accounting, manufacturing, marketing and customer support) during the Term (as
set forth in Section 5 hereof).
C. Terms used herein and not otherwise defined have the respective
meanings set forth in the Software License Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Services.
(a) Symantec agrees to provide to the Company, during the term
specified in Section 5 herein (the "TERM"), the services specified in Exhibit A
hereto (the "SERVICES").
(b) The Services shall be provided by Symantec to the Company on
the same terms and consistent with Symantec's current practice as they have been
performed by Symantec in relation to the Licensed Products during the calendar
quarter immediately prior to the date of this Agreement.
(c) The parties acknowledge the transitional nature of the
Services and that Symantec may make changes from time to time in the manner of
performing the Services if it is making similar changes in performing similar
services for itself.
(d) The parties shall use good faith efforts to cooperate with
each other in all matters relating to the provision and receipt of the Services.
Such cooperation shall include exchanging information, providing necessary
access to people, equipment and systems, and obtaining all consents,
54
licenses, sublicenses or approvals necessary to permit each party to perform its
obligations hereunder. The parties shall also cooperate in making information
available as needed in the event of a tax audit, whether in the United States or
any other country; provided, however, that the party being audited shall
reimburse the other party for any of its out of pocket costs incurred in
connection with providing such information. The obligation pursuant to this
paragraph to cooperate in making information available as needed in the event of
a tax audit shall survive the expiration of this Agreement.
(e) Symantec shall be required to provide services hereunder only
to the extent and only at the locations such services are being provided by
Symantec in connection with the Licensed Products during the calendar quarter
immediately prior to the date hereof. The Services will be available only for
the purposes of conducting business in connection with the Licensed Products in
a manner similar to which it was conducted prior to the date hereof.
(f) In performing the Services hereunder, Symantec shall not be
obligated to (i) hire any additional employees; (ii) maintain the employment of
any specific employee; (iii) purchase, lease or license any additional equipment
or software or (iv) pay any costs related to any conversion requested by Company
of Symantec's data to Company's, or any alternate service supplier's, systems.
(g) Symantec shall provide the Services as an independent
contractor, and the employees or agents of Symantec providing such Services
shall remain employees or agents of Symantec. Symantec shall use its discretion
in performing the Services, subject to the general and reasonable direction of
the Company and subject further to compliance with applicable law. Symantec
shall determine its work location, hours and rules.
2. Payments to Symantec. As consideration for Symantec's performance of
the Services, the Company agrees to pay Symantec the fees set forth on Schedule
1 to Exhibit A. The Company shall additionally reimburse Symantec for the costs
described in Paragraphs 5(b), 6(b) and 8 of Exhibit A. Such amounts due Symantec
shall be satisfied by the Company as set forth in Section 4 hereof.
3. Payments to Company.
(a) Within twenty (20) business days after the end of each fiscal month
during the Term, Symantec shall make a payment to the Company in an amount equal
to actual cash receipts collected by Symantec during such fiscal month in
connection with accounts receivable for any Licensed Products, and any upgrade
insurance and technical support contracts relating to the Licensed Products,
sold by Symantec on behalf of the Company hereunder.
(b) Following the end of the Term, Symantec shall be obligated to pay
the Company an amount (the "END OF TERM PAYMENT") equal to (i) Symantec's net
channel inventory deferrals for the Licensed Products as stated on Symantec's
balance sheet as of the Closing Date plus (ii) Symantec's deferred revenues
relating to upgrade insurance and technical support obligations for the Licensed
Products, as stated on Symantec's balance sheet as of the Closing Date, less
(iii) an allocated percentage of Symantec's volume incentive rebate liability
during the Term, which allocation percentage shall be calculated as follows: net
sell-through of the Licensed Products during the Term, as reported by Symantec's
distributors ("Net Sell-Through"), divided by the sum of (x) Symantec net
revenues, excluding revenues relating to the Licensed Products, during the Term
and (y) Net Sell-Through, and further less (iv) Product Returns. "Product
Returns" shall mean (x) all stockbalancing returns (designated as such by the
distributor or reseller making the return) of the Licensed Products during the
Term, up to the amount set forth in (i) above, plus (y) all non-stockbalancing
and non-obsolete returns of
55
Licensed Products received later than sixty (60) days after the Closing Date (as
defined in the Software License Agreement). The End of Term Payment shall be
satisfied by Symantec as set forth in Section 4 hereof.
4. Payment Terms. The amounts due each party by the other party
pursuant to Sections 2 and 3(b) hereof shall be satisfied as set forth in this
section. Within twenty (20) business days following the end of the fiscal month
in which the Term ends, Symantec shall send an invoice to the Company for an
amount equal to (i) all amounts payable by the Company to Symantec pursuant to
Section 2, less (ii) all amounts payable by Symantec to the Company pursuant to
Section 3(b). If such calculation results in a positive amount, the Company
shall make a payment to Symantec for such amount due no later than seven (7)
days after the date of such invoice. If such calculation results in a negative
amount, Symantec shall make a payment to the Company for such amount due no
later than seven (7) days after the date of such invoice.
5. Term. The Term of this Agreement shall commence on the Closing Date
and shall continue in effect until March 31, 2000.
6. End of Transition Deliverables. Within eleven (11) business days
following the end of the Term, Symantec shall deliver to Company the
deliverables described in Exhibit B hereto (the "Deliverables").
7. Proprietary and Confidential Information. The parties agree to
comply with the provisions regarding confidential information set forth in
Section 10 of the Software License Agreement.
8. Notices. All notices, requests, demands, waivers, consents or other
communications required or permitted hereunder shall be in writing and be deemed
to have been duly given when given in the manner and to the address set forth in
Section 17.13 of the Software License Agreement. Either party may change its
address for notice purposes by providing a notice in accordance with that
section.
9. Limitation on Liability. Symantec and its affiliates' aggregate
liability to the Company and its affiliates relating to this Agreement and the
Services shall in no event exceed the aggregate amount of fees paid by the
Company to Symantec pursuant to this Agreement.
10. Miscellaneous.
(a) Neither party hereto shall be liable for any failure of or delay in
the performance of this Agreement for the period that such failure or delay is
due to any act of God, public enemy, civil war, strikes or labor disputes, or
any similar cause beyond the parties' reasonable control; provided that in the
event of any such failure or delay in the performance of any Service hereunder,
the Company may terminate this Agreement immediately upon written notice to
Symantec, but such termination shall not affect Symantec's right to receive
payment for such Services rendered prior to the date of termination. Each party
hereto agrees to notify the other party promptly of the occurrence of any such
cause and to carry out this Agreement as promptly as practicable after such
cause is terminated.
(b) This Agreement may be amended or modified only by a written
instrument executed by the parties hereto.
(c) This Agreement contains the entire understanding between the
parties hereto with respect to the subject matter hereof and supersedes and
replaces all prior and contemporaneous agreements and understanding, oral or
written, with regard to corporate services or transition matters. All exhibits
hereto
56
are expressly made a part of this Agreement as fully as though completely set
forth herein.
(d) In the event that any provision of this Agreement is declared by
any court or other judicial or administrative body to be null, void or
unenforceable, such provision shall survive to the extent it is not so declared,
and all of the other provisions of this Agreement shall remain in full force and
effect.
(e) Nothing in this Agreement is intended to confer any rights or
remedies under or by reason of this Agreement on any persons other than Symantec
or the Company and their respective successors and permitted assigns; provided,
however, the Company may not assign its rights hereunder. Nothing in this
Agreement is intended to relieve or discharge the obligations or liability of
any third persons to Symantec or the Company. No provision of this Agreement
shall give any third persons any right of subrogation or action over or against
Symantec or the Company.
(f) The provisions regarding governing law, jurisdiction and venue set
forth in Section 17.2 of the Software License Agreement shall apply to this
Agreement in all respects.
(g) The section headings in this Agreement are for reference purposes
only and shall not affect the meaning or interpretation of this Agreement.
(h) This Agreement may be executed in counterparts, each of which shall
be deemed an original, but together which shall constitute the same instrument.
57
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SYMANTEC CORPORATION SALESLOGIX CORPORATION
By By
--------------------------------- ----------------------------------
Name Name
------------------------------- --------------------------------
Title Title
------------------------------ -------------------------------
SYMANTEC LIMITED
By
---------------------------------
Name
-------------------------------
Title
------------------------------
58
EXHIBIT M
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is entered into as
of the __th day of _______________, ________, by and between SALESLOGIX
CORPORATION, a Delaware corporation ("SalesLogix"), and Symantec Corporation, a
Delaware corporation ("Symantec").
RECITALS
A. SalesLogix and Symantec have entered into a Software License
Agreement dated December 6, 1999 (the "License Agreement"), pursuant to which
Symantec shall license certain rights in a software product line to SalesLogix
and receive, as a component of consideration for such transfer, _______ shares
of fully paid and nonassessable Common Stock issued by SalesLogix (the
"Shares").
B. SalesLogix has previously granted certain registration rights to
certain investors in SalesLogix as described in that Amended and Restated
Investors' Rights Agreement dated June 4, 1998, as amended as of April 22, 1999,
and has granted certain additional limited rights to certain shareholders of
Enact Incorporated, a corporation which was acquired by SalesLogix effective
April 30, 1999 and to certain shareholders of Opis Corporation, effective as of
December 30, 1997 (all such agreements collectively, the "Existing Rights
Agreements").
C. SalesLogix and Symantec desire that Symantec receive the
registration rights set forth in this Agreement and that the Shares be subject
to certain restrictions as set forth in this Agreement.
D. Execution of this Agreement is a condition precedent to the
consummation of the transactions contemplated by the License Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties agree as follows:
SECTION 1
Restrictions on Transferability
Registration Rights
1.1 Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Act" shall mean the Securities Act of 1933, as amended, or any
similar or successor federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Commission" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Act.
"Holder" shall mean any person owning of record Registrable
Securities, including without limitation, Symantec.
59
The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Act, and the declaration or ordering of the effectiveness of
such registration statement.
"Registration Expenses" shall mean all expenses incurred by
SalesLogix in complying with Section 1.5 hereof, including, without limitation,
all registration, qualification and filing fees, printing expenses, escrow fees,
fees and disbursements of counsel for SalesLogix, blue sky fees and expenses,
and the expense of any special audits incident to or required by any such
registration (but excluding the compensation of regular employees of SalesLogix
which shall be paid in any event by SalesLogix).
"Registrable Securities" means (a) the Shares and any other shares
of Common Stock that are now owned or may hereafter be acquired by Symantec or
any of Symantec's permitted successors and assigns; (b) any SalesLogix Common
Stock issued or issuable in respect of other securities issued or issuable with
respect to the Shares upon any stock split, stock dividend, recapitalization, or
similar event, or any SalesLogix Common Stock otherwise issued or issuable with
respect to the Shares; (c) any SalesLogix Common Stock with respect to which
SalesLogix has granted registration rights under the Existing Rights Agreements;
and any SalesLogix Common Stock with respect to which SalesLogix hereafter
grants registration rights in compliance with Section 1.18 hereof; provided,
however, that shares of SalesLogix Common Stock or other securities shall only
be treated as Registrable Securities if and so long as they have not been (x)
sold to or through a broker or dealer or underwriter in a public distribution or
a public securities transaction, or (y) sold in a transaction exempt from the
registration and prospectus delivery requirements of the Act under Section 4(l)
thereof so that all transfer restrictions and restrictive legends with respect
thereto are removed upon the consummation of such sale. "1934 Act" shall mean
the Securities Exchange Act of 1934, as amended.
"Form S-3" shall mean such form under the Act as is in effect on
the date hereof or any successor registration form under the Act subsequently
adopted by the Commission which permits inclusion or incorporation of
substantial information by reference to other documents filed by SalesLogix with
the Commission.
1.2 Restrictions. The Shares shall not be sold, assigned, hypothecated
or otherwise transferred except upon the conditions specified in this Agreement,
which conditions are intended to ensure compliance with the provisions of the
Act. Symantec will cause any proposed purchaser, assignee or transferee of the
Shares to agree to take and hold such securities subject to the provisions and
upon the conditions specified in this Agreement, unless such purchaser, assignee
or transferee acquires such securities pursuant to a registration or pursuant to
Rule 144 of the General Regulations promulgated under the Act.
1.3 Restrictive Legend. Each certificate representing (a) the Shares
and (b) any other securities issued in respect of the Shares upon any stock
split, stock dividend, recapitalization, merger, consolidation or similar event,
shall (unless otherwise permitted by the provisions of this Agreement) be
stamped or otherwise imprinted with a legend in the form described in the
License Agreement. Symantec consents to SalesLogix making a notation on its
records and giving instructions to any transfer agent in order to implement the
restrictions on transfer established in this Section 1.
1.4 Notice of Proposed Transfers. Prior to any proposed sale,
assignment or transfer of any Shares, unless the Shares are to be transferred
pursuant to Rule 144 or there is in effect a registration statement under the
Act covering the proposed transfer, Symantec shall give written notice to
SalesLogix of Symantec's intention to effect such transfer, sale or assignment.
Each such notice shall describe the
60
manner and circumstances of the proposed transfer, sale or assignment in
sufficient detail, and shall be accompanied at Symantec's expense by either (a)
an unqualified written opinion of legal counsel who shall, and whose legal
opinion shall be, reasonably satisfactory to SalesLogix, addressed to
SalesLogix, to the effect that the proposed transfer of the Shares may be
effected without registration or qualification under the Act and applicable
state "blue sky" statutes, rules and regulations ("Blue Sky Laws"), or (b) a "no
action" letter from the Commission and applicable state "blue sky" regulators
(the "Regulators") to the effect that the transfer of such securities without
registration will not result in a recommendation by the staff of the Commission
or the Regulators that action be taken with respect thereto, or (c) any other
evidence reasonably satisfactory to counsel to SalesLogix, whereupon Symantec
shall be entitled to transfer such Shares in accordance with the terms of the
notice delivered by Symantec to SalesLogix. Each certificate evidencing the
Shares transferred as above provided shall bear, except if such transfer is made
pursuant to Rule 144 or pursuant to a registration, the appropriate restrictive
legends referred to in this Section 1, except that such certificate shall not
bear such restrictive legend if, in the opinion of counsel for Symantec and
SalesLogix, such legend is not required in order to establish compliance with
any provisions of the Act.
1.5 Symantec Request for Registration.
(a) If at any time after June 1, 2000 at a time when Form S-3 is
not available, for whatever reason, for the registration of the Registrable
Securities owned by Symantec, SalesLogix shall receive a written request from
Symantec that SalesLogix file a registration Statement under the Act covering
the registration of at least 20% of the Registrable Securities owned by Symantec
and Registrable Securities having an anticipated aggregate offering price
(before any underwriting discounts and commissions) of at least $5,000,000, then
SalesLogix shall:
(i) within ten (10) days of the receipt thereof given
written notice of such request to all other Holders; and
(ii) effect as soon as practicable, and in any event within
sixty (60) days of such request, the registration under the Act of all
Registrable Securities which Symantec and the other Holders request, within
twenty (20) days of the mailing of such notice by SalesLogix in accordance with
Section 3.5, to be registered subject to the limitations of Section 1.5(b).
(b) If Symantec intends to distribute the Registrable Securities
covered by its request by means of an underwriting, it shall so advise
SalesLogix as a part of its request made pursuant to Section 1.5(a) and
SalesLogix shall include such information in the written notice referred to in
Section 1.5(a)(i). The underwriter will be selected by SalesLogix and shall be
reasonably acceptable to Symantec. In such event, the right of any Holder to
include his Registrable Securities in such registration shall be conditioned
upon such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting (unless otherwise mutually
agreed by Symantec and such Holder) to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with SalesLogix as provided in Section 1.6(e)) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting. Notwithstanding any other provision of this
Section 1.5, if the underwriter advises Symantec or SalesLogix in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then upon notice of such from Symantec or the underwriter,
SalesLogix shall so advise all Holders that would otherwise be underwritten
pursuant hereto, and the number of shares of Registrable Securities that may be
included in the underwriting shall be allocated first to Symantec and then
second to the other Holders of Registrable Securities in proportion (as nearly
as practicable) to the
61
amount of Registrable Securities of the Company owned by each such Holder;
provided, however, that the number of shares of Registrable Securities to be
included in such underwriting shall not be reduced unless all securities not
holding registration rights are first entirely excluded from the underwriting.
(c) Notwithstanding the foregoing, if SalesLogix shall furnish to
Symantec a certificate signed by the Chief Executive Officer of SalesLogix
stating that in the good faith judgment of the Board of Directors of SalesLogix,
it would be seriously detrimental to SalesLogix and its stockholders for such
registration statement to be filed and it is therefore essential to defer the
filing of such registration statement, SalesLogix shall have the right to defer
taking action with respect to such filing for a period of not more than 90 days
after receipt of the request; provided, however, that SalesLogix may not utilize
this right more than once in any twelve-month period.
(d) In addition, SalesLogix shall not be obligated to effect, or to
take any action to effect, any registration pursuant to this Section 1.5;
(i) After SalesLogix has effected two registrations
pursuant to this Section 1.5 and such registrations has been declared or ordered
effective;
(ii) During the period starting with the date thirty (30)
days prior to SalesLogix's good faith estimate of the date of filing of and
ending on a date sixty (60) days after the effective date of a registration
subject to Section 1.6 hereof; provided that SalesLogix is actively employing in
good faith all reasonable efforts to cause such registration statement to become
effective and the number of Registrable Securities owned by Symantec included in
such registration is equal to or greater than the number of shares that Symantec
requested registration for under this Section 1.5;
(iii) if Symantec proposes to dispose of shares of
Registrable Securities that may be immediately registered on Form S-3 pursuant
to a request made pursuant to Section 1.14 below.
1.6 Company Registration. If (but without any obligation to do so)
SalesLogix proposes, after the date of this Agreement, to register (including
for this purpose a registration effected by SalesLogix for stockholders other
than Symantec) any of its stock or other securities under the Act in connection
with the public offering of such securities solely for cash (other than (i) a
registration relating solely to the sale of securities to participants in a
SalesLogix stock plan; (ii) a registration on any form which does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of the Registrable Securities; or (iii)
a registration in which the only Common Stock being registered is Common Stock
issuable upon conversion of debt securities which are also being registered);
including (but not limited to) any registration made pursuant to Section 1.2(a)
of the Amended and Restated Investors' Rights Agreement dated June 4, 1998, as
amended as of April 22, 1999 (the "Restated Existing Agreement"), SalesLogix
shall at such time promptly give Symantec written notice of such registration.
Upon the written request of Symantec given within twenty (20) days after mailing
of such notice by SalesLogix in accordance with Section 3.5, SalesLogix shall,
subject to the provisions of Sections 1.8 and 1.10, cause to be registered under
the Act all of the Registrable Securities that Symantec has requested to be
registered. If Symantec decides not to include all of its Registrable Securities
in any registration statement thereafter filed by SalesLogix, Symantec shall
nevertheless continue to have the right to include any Registrable Securities in
any subsequent registration statement or statements as may be filed by
SalesLogix with respect to offerings of its securities (whether for itself or
secondary offerings for the benefit of other stockholders), all upon the terms
and conditions set forth herein.
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1.7 Obligations of SalesLogix. Whenever required under this Section 1
to effect the registration of any Registrable Securities, SalesLogix shall as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for a period of up to one hundred twenty (120)
days or until the distribution contemplated in the Registration Statement has
been completed; provided, however, that (i) such 120 day period shall be
extended for a period of time equal to the period Symantec refrains from selling
any securities included in such registration at the request of an underwriter of
Common Stock (or other securities) of SalesLogix; and (ii) in the case of any
registration of Registrable Securities on Form S-3 which are intended to be
offered on a continuous or delayed basis, such 120-day period shall be extended,
if necessary, to keep the registration statement effective until all such
Registrable Securities are sold; provided that Rule 415, or any successor rule
under the Act, permits an offering on a continuous or delayed basis, and
provided further that applicable rules under the Act governing the obligation to
file a post-effective amendment permit, in lieu of filing a post-effective
amendment which (I) includes any prospectus required by Section 10(a)(3) of the
Act or (II) reflects facts or events representing a material or fundamental
change in the information set forth in the registration statement, the
incorporation by reference of information required to be included in (I) and
(II) above to be contained in periodic reports filed pursuant to Section 13 or
15(d) of the 1934 Act in the registration statement.
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to Symantec such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as it may reasonably request in order to
facilitate the disposition of Registrable Securities owned by it.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by Symantec;
provided that SalesLogix shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions, unless SalesLogix is
already subject to service in such jurisdiction and except as may be required by
the Act.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Symantec and
each other Holder participating in such underwriting shall also enter into and
perform its obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
63
(g) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar securities
issued by SalesLogix are then listed.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
(i) Furnish, at the request of any Holder requesting registration
of Registrable Securities, on the date that such Registrable Securities are
delivered to the underwriters for sale in connection with a registration
pursuant, if such securities are being sold through underwriters, or, if such
securities are not being sold through underwriters, on the date that the
registration statement with respect to such securities becomes effective, (i) an
opinion, dated as of such date, of the counsel representing SalesLogix for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering and reasonably satisfactory to
Symantec, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated as of such date,
from the independent certified public accountants of SalesLogix, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering and reasonably satisfactory to
Symantec, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities.
1.8 Furnish Information. It shall be a condition precedent to the
obligations of SalesLogix to take any action pursuant to this Section 1 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to SalesLogix such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
1.9 Expenses of Registration. SalesLogix shall bear and pay all
expenses incurred in connection with any registration, filing or qualification
of Registrable Securities with respect to the registrations pursuant to this
Section 1 for Symantec, including (without limitation) all federal and "blue
sky" registration, filing, and qualification fees, printers and accounting fees
relating or apportionable thereto, the fees and disbursements of counsel for
SalesLogix and the fees and disbursements of one counsel for the selling Holders
selected by them, but excluding underwriting discounts and commissions relating
to Registrable Securities.
1.10 Underwriting Requirements. In connection with any offering
involving an underwriting of Shares of SalesLogix's capital stock, SalesLogix
shall not be required under Section 1.6 to include any of the Holder's
securities in such underwriting unless the Holder accepts the terms of the
underwriting as agreed upon between SalesLogix and the underwriters selected by
it (or by other persons entitled to select the underwriters), and then only in
such quantity as the underwriters determine in their sole discretion will not,
jeopardize the success of the offering by SalesLogix. If the total amount of
securities, including Registrable Securities, requested by stockholders to be
included in such offering exceeds the amount of securities sold other than by
SalesLogix that the underwriters determine in their sole discretion is
compatible with the success of the offering, then SalesLogix shall be required
to include in the offering only that number of such securities, including
Registrable Securities, which the underwriters determine in their sole
discretion will not jeopardize the success of the offering (the securities so
included to be apportioned pro rata among the Holders according to the total
amount of securities requested to be included therein owned by each selling
Holder or in such other proportions as shall mutually be agreed to by such
selling Holders, but in no event shall (i) the amount of securities of the
selling Holders included in the offering be reduced below thirty percent (30%)
of the total amount of
64
securities included in such offering, (ii) notwithstanding (i) above, any shares
being sold by Symantec pursuant to exercise of a demand registration right under
Section 1.5 or by holders pursuant to exercise of a demand right under Section
1.2(a) of the Restated Existing Agreement be excluded from such offering. For
purposes of the preceding parenthetical concerning apportionment, for any
selling stockholder which is a Holder of Registrable Securities and which is a
partnership or corporation, the partners, retired partners and stockholders of
such Holder, or the estates and family members of any such partners and retired
partners and any trusts for the benefit of any of the foregoing persons shall be
deemed to be a single "selling stockholder," and any pro-rata reduction with
respect to such "selling stockholder" shall be based upon the aggregate amount
of Shares carrying registration rights owned by all entities and individuals
included in such "selling stockholder," as defined in this sentence.
1.11 Delay of Registration. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 1.
1.12 Indemnification. In the event any Registrable Securities are
included in a registration statement pursuant to this Section 1:
(a) To the extent permitted by law, SalesLogix will indemnify and
hold harmless Symantec and each other Holder, the officers and directors of each
Holder, any underwriter (as defined in the Act) for such Holder and each person,
if any, who controls such Holder or underwriter within the meaning of the Act or
the 1934 Act, against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the Act, the 1934 Act or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (individually and collectively a
"Violation"): (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading, or (iii) any violation or alleged violation by
SalesLogix of the Act, the 1934 Act, any federal or state securities law or any
rule or regulation promulgated under the Act, the 1934 Act or any federal or
state securities law; and SalesLogix will pay to each such Holder, officer or
director, underwriter or controlling person, as incurred, any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this Section 1.12(a) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability, or
action if such settlement is effected without the consent of SalesLogix (which
consent shall not be unreasonably withheld), nor shall SalesLogix be liable in
any such case for any such loss, claim, damage, liability, or action to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by any such Holder, officer or
director, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless SalesLogix, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls SalesLogix within the meaning of the Act, any underwriter, any other
Holder selling securities in such registration statement or any of such Holder's
officers and directors, and any person who controls such underwriter or other
Holder within the meaning of the Act of 1934 Act, against any losses, claims,
damages, or liabilities (joint or several) to which SalesLogix or any such
director, officer, controlling person, underwriter or other such Holder,
director, officer or controlling person of such other Holder may become subject,
under the Act, the 1934 Act or other federal or state
65
law, insofar as such losses, claims, damages, or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by such Holder expressly
for use in connection with such registration; and each such Holder will pay, as
incurred, any legal or other expenses reasonably incurred by SalesLogix or any
such director, officer, controlling person, underwriter or other Holder,
officer, director or controlling person of such Holder, in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this Section
1.12(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Holder, which consent shall not be unreasonably withheld; provided, that,
in no event shall the total amounts payable in indemnity by a Holder under this
Section 1.12(b) exceed the net proceeds received by such Holder in the
registered offering out of which such Violation arises.
(c) Promptly after receipt by an indemnified party under this
Section 1.12 of notice of the commencement of any action (including any
governmental action), such indemnified party will if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.12, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain its own separate counsel
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.12, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.12.
(d) Defect Eliminated in Final Prospectus. The foregoing indemnity
agreements of SalesLogix and Holders are subject to the condition that, insofar
as they relate to any Violation made in a preliminary prospectus but eliminated
or remedied in the amended prospectus on file with the SEC at the time the
registration statement in question becomes effective or the amended prospectus
filed with the SEC pursuant to SEC Rule 424(b) (the "Final Prospectus"), such
indemnity agreement shall not inure to the benefit of any person if a copy of
the Final Prospectus was furnished to the indemnified party and was not
furnished to the person asserting the loss, liability, claim or damage at or
prior to the time such action is required by the Act.
(e) Contribution. In order to provide for just and equitable
contribution to joint liability under the Act in any case in which either (1)
any Holder exercising rights under this Agreement, or any controlling person of
any such Holder, makes a claim for indemnification pursuant to this Section 1.12
but it is judicially determined (by the entry of a final judgment or decree by a
court of competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 1.12 provides
for indemnification in such case, or (2) contribution under the Act may be
required on the part of any such selling Holder or any such controlling person
in circumstances for which indemnification is provided under this Section 1.12,
then, and in each such case, SalesLogix and such Holder will contribute to the
aggregate losses, claims, damages or liabilities to which they may be subject
(after contribution
66
from others) in such proportion so that such Holder is responsible for the
portion represented by the percentage that the public offering price of its
Registrable Securities offered by and sold under the registration statement
bears to the public offering price of all securities offered by and sold under
such registration statement, and SalesLogix and other selling Holders are
responsible for the remaining portion; provided, however, that, in any such
case, (A) no such Holder will be required to contribute any amount in excess of
the public offering price of all such Registrable Securities offered and sold by
such Holder pursuant to such registration statement; and (B) no person or entity
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) will be entitled to contribution from any person or entity who was not
guilty of such fraudulent misrepresentation.
(f) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(g) The obligations of SalesLogix and Holders under this Section
1.12 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
1.13 Reports Under Securities Exchange Act of 1934. With a view to
making available to Symantec the benefits of Rule 144 promulgated under the Act
and any other rule or regulation of the SEC that may at any time permit a Holder
to sell securities of SalesLogix to the public without registration, SalesLogix
agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times;
(b) file with the SEC in a timely manner all reports and other
documents required of SalesLogix under the Act and the 1934 Act; and
(c) furnish to Symantec, so long as Symantec owns any Registrable
Securities, forthwith upon request (i) a written statement by SalesLogix that it
has complied with the reporting requirements of SEC Rule 144, the Act and the
1934 Act (at any time after it has become subject to such reporting
requirements), (ii) a copy of the most recent annual or quarterly report of
SalesLogix and such other reports and documents so filed by SalesLogix, and
(iii) such other information as may be reasonably requested in availing any
Holder of any rule or regulation of the SEC which permits the selling of any
such securities without registration or pursuant to such form.
1.14 Form S-3 Registration. In case the Company shall receive from
Symantec or any other Holder or Holders a written request or requests that the
Company effect a registration on Form S-3 and any related qualification or
compliance with respect to all or a part of the Registrable Securities owned by
such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Holder's or
Holders' Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any other Holder or Holders
joining in such
67
request as are specified in a written request given within fifteen (15) days
after receipt of such written notice from the Company; provided, however, that
the Company shall not be obligated to effect any such registration,
qualification or compliance, pursuant to this Section 1.14: (1) if Form S-3 is
not available for such offering by the Holders; (2) if the Holders, together
with the holders of any other securities of the Company entitled to inclusion in
such registration, propose to sell Registrable Securities and such other
securities (if any) at an aggregate price to the public (net of any
underwriters' discounts or commissions) of less than $1,000,000; (3) if the
Company shall furnish to the Holders a certificate signed by the President of
the Company stating that in the good faith judgment of the Board of Directors of
the Company, it would be seriously detrimental to the Company and its
stockholders for such Form S-3 Registration to be effected at such time, in
which event the Company shall have the right to defer the filing of the Form S-3
Registration statement for a period of not more than sixty (60) days after
receipt of the request of the Holder or Holders under this Section 1.14;
provided, however, that the Company shall not utilize this right more than once
in any twelve (12) month period; (4) if the Company has, within the twelve (12)
month period preceding the date of such request, already effected two
registrations on Form S-3 for Symantec pursuant to this Section 1.14; or (5) in
any particular jurisdiction in which the Company would be required to qualify to
do business or to execute a general consent to service of process in effecting
such registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. All expenses incurred in connection with a
registration requested pursuant to Section 1.14, including (without limitation)
all registration, filing, qualification, printer's and accounting fees and the
reasonable fees and disbursements of counsel for the selling Holder or Holders
and counsel for the Company, but excluding any underwriters' discounts or
commissions associated with Registrable Securities, shall be borne by the
Company; provided, however, that the Company shall not be obligated to bear such
expenses in connection with more than one such Form S-3 Registration that
includes shares on behalf of Symantec within any twelve (12) month period.
1.15 Assignment of Registration Rights. The rights to cause SalesLogix
to register Registrable Securities pursuant to Section 1.5, Section 1.6 and
Section 1.14 may not be assigned by Symantec, without the prior written consent
of SalesLogix, which may be granted or withheld in its discretion; except that
such rights may be assigned by the Holder without SalesLogix's prior written
consent (but only with all related obligations) in connection with a transfer
made pursuant to Section 1.4 provided that the transferee or assignee of such
securities will, after such assignment or transfer, hold at least 100,000 shares
of Registrable Securities (subject to appropriate adjustment for stock splits,
stock dividends, combinations and other recapitalizations); and further provided
that: (a) SalesLogix is, within a reasonable time after such transfer and
assignment, furnished with written notice of the name and address of such
transferee and assignee and the securities with respect to which such
registration rights are being assigned; (b) such transferee and assignee agrees
in writing to be bound by and subject to the terms and conditions of this
Agreement, including without limitation the provisions of Section 1.16 below;
and (c) such assignment shall be effective only if immediately following such
transfer and assignment the further disposition of such securities by the
transferee or assignee is restricted under the Act. Any such transferee and
assignee shall be deemed a Holder for the purposes of this Agreement.
1.16 Termination of Registration Rights.
(1) No Holder shall be entitled to exercise any right provided for
in this Section 1 after the sixth (6th) anniversary of the date hereof.
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(2) In addition, the right of any Holder to request inclusion in
any registration pursuant to Section 1 shall terminate on the second (2nd)
anniversary of the date hereof if all Shares of Registrable Securities held by
such Holder may immediately be sold under Rule 144 during any 90 day period, or
on such date after such second anniversary as all Shares of Registrable
Securities held by such Holder may immediately be sold under Rule 144 during any
90 day period; provided, however, that the provisions of this Section 1.16(b)
shall not apply to Symantec or any other Holder who owns more than two percent
(2%) of SalesLogix's outstanding stock until such time as Symantec or such
Holder owns less than two percent (2%) of the outstanding stock of SalesLogix.
1.17 Acknowledgment of Previous Grants of Registration Rights. Symantec
acknowledges that SalesLogix has previously granted registration rights relating
to Common Stock of SalesLogix, pursuant to the Existing Rights Agreements and
that Symantec's rights under Section 1.6 (subject to Section 1.10) hereof shall
be pari passu with the piggyback rights of the Holders under such agreements,
and that Symantec's rights under this Agreement are subject to the rights of the
holders under the Existing Rights Agreements.
1.18 Limitations on Subsequent Registration Rights. From and after the
date of this Agreement, SalesLogix shall not, without the prior written consent
of Symantec, enter into any agreement with any holder or prospective holder of
any securities of SalesLogix which would allow such holder or prospective holder
to include such securities in any registration filed under Section 1.5 or 1.14
hereof , unless under the terms of such agreement, such holder or prospective
holder may include such securities in any such registration only to the extent
that the inclusion of its securities will not reduce the amount of the
Registrable Securities of Symantec which is included. Notwithstanding the
foregoing, SalesLogix may grant piggyback registration rights pursuant to which
such holder or prospective holder may include such securities in any
registration under Section 1.6 if the inclusion of its securities are subject to
reduction on a pro rata basis with the Registrable Securities of Symantec on the
basis set forth in Section 1.10.
1.19 Rule 144A Information; PORTAL. If in the future SalesLogix is
neither subject to the reporting requirements of Section 13 or 15(d) of the 1934
Act, nor exempt from reporting pursuant to Rule 12g3-2(b) under the 1934 Act,
SalesLogix shall during such time provide in written form, upon the written
request of Symantec, or a prospective purchaser of securities of SalesLogix from
Symantec, all information required by Rule 144A(d)(4)(i) of the General
Regulations promulgated under the Act ("144A Information"); SalesLogix further
agrees, upon written request, to cooperate with and assist Symantec or any
member of the National Association of Securities Dealers, Inc. system for
Private Offerings Resales and Trading through Automated Linkages ("PORTAL") in
applying to designate and thereafter maintaining the eligibility of the
SalesLogix's securities for trading through PORTAL. With respect to each,
SalesLogix's obligations under this Section shall at all times be contingent
upon Symantec obtaining from a prospective purchaser an agreement to take all
reasonable precautions to safeguard the 144A Information from disclosure to
anyone other than employees of the prospective purchaser who require access to
the 144A Information for the sole purpose of evaluating its purchase of
SalesLogix's securities.
SECTION 2
Miscellaneous
2.1 Assignment. Except as otherwise provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and permitted assigns of the parties hereto.
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2.2 Third Parties. Nothing in this Agreement, express or implied, is
intended to confer upon any person or entity, other than the parties hereto, and
their respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
herein. "Holder" who are not parties to this Agreement, or successors or assigns
of such parties, are not third party beneficiaries of this Agreement and may not
enforce this Agreement without the prior written consent of SalesLogix in its
discretion. SalesLogix hereby represents and warrants that any consents or
approvals of third parties, including (but not limited to) Holders and parties
to the Existing Rights Agreements that may be required as a condition precedent,
or otherwise, to SalesLogix entering into this Agreement have been obtained.
2.3 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of California as applied to agreements entered into
and performed in the State of California solely by residents thereof.
2.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
2.5 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or receipt
if sent by telecopy, nationally recognized overnight courier or first class or
by registered or certified mail postage prepaid and addressed to the party to be
notified at the address indicated for such party on the signature page hereof or
at such other address as such party may designate by ten (10) days' advance
written notice to the other parties.
2.6 Expenses. If any action at law or in equity is necessary to enforce
or interpret the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorneys' fees, costs and necessary disbursements in addition to
any other relief to which such party may be entitled.
2.7 Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, portions of such provisions, or such
provisions in their entirety, to the extent necessary, shall be severed from
this Agreement, and the balance of this Agreement shall be enforceable in
accordance with its terms.
2.8 Amendment and Waiver. Any provision of this Agreement may be
amended with the written consent of SalesLogix and Symantec. The failure of
either party to enforce at any time any of the provisions hereof or exercise any
right hereunder shall not be construed to be a waiver of the right of such party
thereafter to enforce any such provision or exercise such right. Any waiver
hereunder must be in writing and must be signed by the party whose waiver is
sought.
2.9 Adjustments for Stock Splits, Etc. Wherever in this Agreement there
is a reference to a specific number of shares of Common Stock of SalesLogix or
of any class or series, then, upon the occurrence of any subdivision,
combination or stock dividend of such class or series of stock, the specific
number of shares so referenced in this Agreement shall automatically be
proportionally adjusted to reflect the affect on the outstanding shares of such
class or series of stock by such subdivision, combination or stock dividend.
2.10 Aggregation of Stock. All shares held or acquired by affiliated
entities or persons shall be aggregated together for the purpose of determining
the availability of any rights under this Agreement.
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2.11 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to either party to this Agreement, upon any breach or
default of the other party, shall impair any such right, power or remedy of such
non-breaching party nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of either party of any breach or default under this
Agreement, or any waiver on the part of either party of any provisions or
conditions of this Agreement, must be made in writing and shall be effective
only to the extent specifically set forth in such writing. All remedies, either
under this Agreement, or by law or otherwise afforded to any Holder, shall be
cumulative and not alternative.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
SALESLOGIX CORPORATION
By:
---------------------------------------
Title:
------------------------------------
8800 N. Gainey Center Drive, Suite 200
Scottsdale, AZ 85258
SYMANTEC CORPORATION
By:
---------------------------------------
Title:
------------------------------------
20330 Stevens Creek Boulevard
Cupertino, CA 95014
71
EXHIBIT N
STOCKHOLDER AGREEMENT
THIS STOCKHOLDER AGREEMENT (the "Agreement") is entered into as of the
__th day of ___________, _______, by and between SALESLOGIX CORPORATION, a
Delaware corporation ("SalesLogix"), and SYMANTEC CORPORATION, a Delaware
corporation ("Symantec").
RECITALS
A. SalesLogix and Symantec have entered into a Software License
Agreement dated December 6, 1999 (the "License Agreement"), pursuant to which
Symantec shall license certain rights in a software product line to SalesLogix
and receive, as a component of consideration for such transfer, _______ shares
of fully paid and nonassessable Common Stock issued by SalesLogix (the
"Shares").
B. SalesLogix is concurrently granting certain registration rights to
Symantec pursuant to a separate agreement.
C. As a condition precedent to issuance of the Shares SalesLogix has
required Symantec to agree to certain restrictions set forth in this Agreement.
D. Execution of this Agreement is a condition precedent to the
consummation of the transactions contemplated by the License Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties agree as follows:
SECTION 1
Standstill Provisions
1.1 Standstill. Beginning on the date of this Agreement and continuing
until the earlier of (i) four (4) years after the date of this Agreement or (ii)
the date on which Symantec holds less then two percent (2%) of the outstanding
voting securities of SalesLogix (the "Standstill Period"), Symantec will not:
(a) without providing five (5) business days written notice to
SalesLogix, acquire or agree, offer, seek or propose to acquire, or cause to be
acquired, ownership (including, but not limited to, beneficial ownership as
defined in Rule 13d-3 under the 1934 Act) of any of SalesLogix's assets or
businesses or in excess of fifteen percent (15%) of the then outstanding voting
securities of SalesLogix (except by stock split, stock dividend or other similar
recapitalization event approved by SalesLogix's Board of Directors), or any
rights or options to acquire such ownership, including from a third party;
(b) make, or in any way participate, in any hostile or third party
solicitation (which solicitation has not been approved or authorized by
SalesLogix's Board of Directors) of proxies or consents with respect to any
securities of SalesLogix which are, or may be, entitled to vote in the election
of SalesLogix's directors ("Voting Securities"), or become a "participant" in
any "election contest" (as
72
such terms are defined or used in Rule 14a-11 under the 1934 Act) with respect
to SalesLogix, except as recommended by SalesLogix's Board of Directors; or
(c) form, join, or in any way participate, directly or indirectly,
in a "group" within the meaning of Section 13(d)(3) of the Exchange Act with
respect to any securities of SalesLogix for purposes of conducting a hostile
takeover of SalesLogix.
1.2 Voting. Symantec covenants and agrees not to vote in favor of any
hostile takeover of SalesLogix during the Standstill Period.
SECTION 2
Miscellaneous
2.1 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of California as applied to agreements entered into
and performed in the State of California solely by residents thereof.
2.2 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
2.3 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or receipt
if sent by telecopy, nationally recognized overnight courier or first class or
by registered or certified mail postage prepaid and addressed to the party to be
notified at the address indicated for such party on the signature page hereof or
at such other address as such party may designate by ten (10) days' advance
written notice to the other parties.
2.4 Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, portions of such provisions, or such
provisions in their entirety, to the extent necessary, shall be severed from
this Agreement, and the balance of this Agreement shall be enforceable in
accordance with its terms.
2.5 Amendment and Waiver. Any provision of this Agreement may be
amended with the written consent of SalesLogix and Symantec. The failure of
either party to enforce at any time any of the provisions hereof or exercise any
right hereunder shall not be construed to be a waiver of the right of such party
thereafter to enforce any such provision or exercise such right. Any waiver
hereunder must be in writing and must be signed by the party whose waiver is
sought.
2.6 Aggregation of Stock. All shares held or acquired by affiliated
entities or persons shall be aggregated together for the purpose of determining
the availability of any rights or the applicability of any restrictions under
this Agreement.
2.7 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to either party to this Agreement, upon any breach or
default of the other party, shall impair any such right, power or remedy of such
non-breaching party nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
73
character on the part of either party of any breach or default under this
Agreement, or any waiver on the part of either party of any provisions or
conditions of this Agreement, must be made in writing and shall be effective
only to the extent specifically set forth in such writing. All remedies, either
under this Agreement, or by law or otherwise, shall be cumulative and not
alternative.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
SALESLOGIX CORPORATION
By:
---------------------------------------
Title:
------------------------------------
8800 N. Gainey Center Drive, Suite 200
Scottsdale, Arizona 85258
SYMANTEC CORPORATION
By:
---------------------------------------
Title:
------------------------------------
20330 Stevens Creek Blvd.
Cupertino, California 95014