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EXHIBIT 10.4
MICROSOFT CORPORATION
1995/1996 AUTHORIZED GOVERNMENT
LARGE ACCOUNT RESELLER AGREEMENT
This Microsoft 1995/1996 Authorized Government Large Account Reseller Agreement
("Agreement") is entered into as of this 1st day of April, 1995, between
MICROSOFT CORPORATION ("MS") having its principal place of business at One
Microsoft Way, Redmond, WA 98052 and Software Spectrnm, Inc. ("CUSTOMER")
having its principal place of business at 2140 Merritt Drive, Garland, TX
75041.
1. PURPOSE
The purpose of this Agreement is to appoint CUSTOMER as an "Authorized
Government Large Account Reseller" for sales to the United States Government
and to set forth the framework under which CUSTOMER may solicit Master
Agreements with the United States Government and may acquire Microsoft Select
License Pak(s) and their associated rights from MS for distribution to the
United States Government as a Select Customer in the defined Territory.
2. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
2.1 "ENROLLMENT AGREEMENT" shall mean the Federal Select
Enrollment Agreement in the form provided by MS and completed by each Federal
Select Customer and accepted by CUSTOMER.
2.2 "SELECT AGREEMENT NUMBER" shall mean the number assigned by MS
to a given Master Agreement.
2.3 "SELECT CUSTOMER" shall mean the Lead Customer and/or any Lead
Customer Affiliate that has executed an Enrollment Agreement. Subject to the
terms of the applicable Master Agreement and Enrollment Agreement, a Select
Customer may purchase one or more Federal Select License Pak(s), become the
licensee of the Select Software Product(s) covered by the Select License Pak(s)
and, accordingly is responsible for complying with the reporting and payment
requirements of each such Select License Pak(s).
2.4 "SELECT LICENSE PAK(S)" shall mean the Microsoft License
Pak(s) and similar products which MS designates from time to time as available
through the Microsoft Select Program. The Select License Pak(s) available to a
given Select Customer are set forth in the applicable Master Agreement.
2.5 "SELECT PROGRAM ADMINISTRATOR" shall mean the individual
appointed by CUSTOMER to act as CUSTOMER's primary contact with respect to the
Microsoft Select Program.
2.6 "SELECT SOFTWARE PRODUCT" shall mean the software portion of a
MS product which may be made available under a Select License Pak as designated
from time to time by MS.
2.7 "LEAD CUSTOMER" shall mean the United States Government entity
which has executed a given Master Agreement.
2.8 "LEAD CUSTOMER AFFILIATE" shall mean an agency,
instrumentality, division, unit or other office which is supervised by or is
part of the Lead Customer.
Microsoft Confidential - Disclosure Prohibited
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2.9 "MASTER AGREEMENT" shall mean the Federal Select Master
Agreement, in the form provided by MS, entered into by and between CUSTOMER and
a given Lead Customer. The Master Agreement sets forth the terms and conditions
pursuant to which the lead Customer and its affiliates can become Select
Customers and thereby have the right to acquire Microsoft Select License Pak(s)
from CUSTOMERS
2.10 "MICROSOFT SELECT ACCOUNT MANAGER" shall mean the individual
appointed by MS to act as the primary MS contact for a given Select Customer
with respect to the Microsoft Select Program.
2.11 "TERRITORY" shall mean the geographic area consisting of the
United States.
3. TERM AND TERMINATION
3.1 TERM
This Agreement shall be effective as of the date indicated above, and shall
continue until March 31, 1996.
3.2 TERMINATION
Either MS or CUSTOMER may terminate this Agreement and/or any amendment hereto
at any time, with or without cause, upon thirty (30) days prior written notice.
Neither party shall be responsible to the other for any costs or damages
resulting from the termination of this Agreement. Rights to payment of money
which have accrued prior to termination shall survive termination.
3.3 OBLIGATIONS ON TERMINATION OR EXPIRATION
Promptly following termination or expiration of this Agreement, MS shall inform
each of CUSTOMER's Select Customers that CUSTOMER is no longer an Authorized
Government Large Account Reseller and while any existing Master Agreement(s)
and Enrollment Agreement(s) shall remain in full force and effect for the
remainder of their terms, CUSTOMER shall not have the authority to enter into
any new Master Agreement(s) or Enrollment Agreement(s) or to extend any such
existing agreements. During the remaining term of the existing Master
Agreement(s), each Select Customer shall be obligated to file its reports, as
required by the applicable Select License Pak and to pay CUSTOMER any and all
amounts due for such reports as agreed to between CUSTOMER and the Select
Customer. CUSTOMER shall in turn be obligated to pay to MS in accordance with
the terms of Section 4 below any and all amounts due MS as a result of the
Select Customer's above-referenced reports. Upon termination or expiration, MS
shall have the right, but not the obligation, to repurchase from CUSTOMER all
or part of CUSTOMER's inventory of documentation SKU's at the prices paid by
CUSTOMER. MS shall exercise the foregoing right by giving CUSTOMER written
notice of its intent to repurchase such documentation SKU inventory, such
notice being given within thirty (30) days of termination or expiration.
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4. APPOINTMENT AS A U.S. GOVERNMENT LARGE ACCOUNT RESELLER/SOLICITATION
OF MASTER AGREEMENTS/ACCEPTANCE OF ENROLLMENT AGREEMENTS
4.1 APPOINTMENT
MS hereby appoints CUSTOMER as a non-exclusive Authorized Government Large
Account Reseller in the Territory with the right to acquire Select License
Pak(s) from MS and to resell those Select License Pak(s) and their associated
license rights to Select Customers. CUSTOMER may only sell Select License
Pak(s) to Select Customers acquiring the Select License Pak(s) in the
Territory, when the entire Federal Government is treated as a single customer
by the acquiring agency (i.e. the acquiring agency signs a Master Agreement
under which all federal buying offices may place orders and there is a single
volume commitment for all federal agencies). Select Customers are entitled to
distribute the rights associated with their Select License Pak(s) outside of
the Territory if they so elect. Notwithstanding the foregoing, in the event a
Select Customer wants to acquire a Select License Pak(s) in a country outside
of the Territory, CUSTOMER may distribute the Select License Pak(s) to those
U.S. Government customers properly authorized to purchase off of the Select
contract
4.2 LIMITATION ON AUTHORIZATION.
MS' authorization of the Authorized Government Large Account Reseller to resell
or otherwise transfer Select Products as set forth herein shall not include the
authorization for the Authorized Government Large Account Reseller to use
Select Products internally or to resell or otherwise transfer Select Products
to any entity which owns, controls, is owned or controlled by, or under common
ownership or control with the Authorized Government Large Account Reseller
("Authorized Government Large Account Reseller Affiliates"). The foregoing
limitation shall not, however, prevent the use of Select Products by employees
of the Authorized Government Large Account Reseller or Authorized Government
Large Account Reseller Affiliates who are directly or indirectly involved with
the sale or marketing of software or other information technology related
products or services to companies other than the Authorized Government Large
Account Reseller or Authorized Government Large Account Reseller Affiliates
subject to the terms of properly executed Select Master Agreement and
Enrollment Agreement(s), or other written authorization by MS or MS affiliate.
For the purposes of this Agreement, an entity is "controlled" by another if
that other company or legal entity, either directly or through its control of
another company or legal entity: (i) holds the majority of voting rights in it;
(ii) is a member of it and has the right to appoint or remove a majority of its
board of directors; or (iii) is a member of it and controls alone, under an
agreement with other shareholders or members, the majority of the voting rights
in it.
4.3 SOLICITATION OF MASTER AGREEMENTS
CUSTOMER is hereby authorized on a nonexclusive basis to solicit a Master
Agreement from any qualifying United States Government agency, division, unit
or other office, provided any such Master Agreement is in the form pre-approved
by MS. CUSTOMER shall inform its customers that the product is a license only,
and does not include any disks or documentation. In the event any changes are
made to the pre-approved form Master Agreement, CUSTOMER shall provide MS with
a red-lined copy of such amended agreement prior to execution of such Master
Agreement. CUSTOMER agrees that it shall not execute any such amended Master
Agreement until it has received MS's prior written approval of such amendments.
CUSTOMER agrees to deliver to MS a copy of each Master Agreement no later than
ten (10) days following CUSTOMER's execution of the same.
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4.4 ACCEPTANCE OF ENROLLMENT AGREEMENTS
In order to be entitled to purchase Select License Pak(s) from MS for resale to
a given Select Customer and to sell documentation SKUs to that Select Customer,
an authorized representative of CUSTOMER must have signed the Federal Select
Customer's Enrollment Agreement. Such Enrollment Agreement must be in the form
pre-approved by MS. In the event any changes are made to the pre-approved form
Enrollment Agreement, CUSTOMER shall provide MS with a red-lined copy of such
amended agreement prior to execution of such Enrollment Agreement. CUSTOMER
agrees that it shall not execute any such amended Enrollment Agreement until it
has received MS's prior written approval of such amendments. CUSTOMER's
signature on the approved Enrollment Agreement shall constitute CUSTOMER's
order for the Federal Select License Pak(s) listed in the Enrollment Agreement
and shall further constitute CUSTOMER's agreement to pay MS as set forth in
Section 4 for all copies of Federal Select Software Products made by the
Federal Select Customer pursuant to the Federal Select License Pak(s).
5. DELIVERY OF AND PAYMENT FOR SELECT LICENSE PAK(S)
5.1 DELIVERY OF SELECT LICENSE PAK(S) AND SELECT CD-ROMS
Within fifteen (15) days of MS's receipt of a fully executed Enrollment
Agreement (for which an underlying Master Agreement has been received by MS),
MS agrees to deliver to CUSTOMER the Federal Select License Pak(s) identified
on the Enrollment Agreement. Each Federal Select License Pak delivered to
CUSTOMER will be a custom package specific to the named Federal Select Customer
and will set forth the Customer's Federal Select Agreement Number and any
special conditions relevant to the named Federal Select Customer. Federal
Select License Pak(s) are provided in order that CUSTOMER may provide the
Federal Select License Pak(s) and their associated license rights to the named
Federal Select Customer on such pricing and payment terms and conditions as
CUSTOMER and the Federal Select Customer agree. CUSTOMER agrees to pay MS for
Federal Select License Pak(s) as set forth in paragraph 5.2 below. From time to
time during the term of this Agreement, MS will provide CUSTOMER, free of
charge, with CD-ROMs containing upgraded copies of the Federal Select Software
Products covered by an Federal Select Customer's Federal Select License Pak(s).
CUSTOMER agrees to promptly deliver the Federal Select CD-ROM and any
additional MS supplied program information and materials to the named Federal
Select Customer.
In addition to the delivery of the Select License Pak(s) to CUSTOMER's Select
Customers, CUSTOMER farther agrees to distribute a Notice of Software Purchase
in a format substantially similar to the attached Schedule B. Any amendments or
changes to such format must receive MS' prior written approval.
5.2 CUSTOMER'S PAYMENTS TO MS
(a) PAYMENTS
Each Federal Select Customer is obligated by the terms of the Microsoft Federal
Select Program to deliver to CUSTOMER within fifteen (15) days of the end of
each calendar quarter, a written verified report for each Federal Select
License Pak received from CUSTOMER pursuant to the terms of this Agreement.
Immediately following receipt of a report from a given Federal Select Customer,
CUSTOMER shall provide MS a copy of such report. MS shall invoice CUSTOMER, and
CUSTOMER shall be obligated to pay MS the fees set forth on Attachment A for
each unit (e.g. copy of software, copy of upgrade, or personal computer as the
case may be) reported by the Federal Select Customer. All amounts are due and
owing net thirty (30) days of date of invoice. All payments not received by MS
from CUSTOMER within the required time frame may be assessed a finance charge
of the then-current prime rate plus two percent (2%) per month or the legal
maximum, whichever is less. CUSTOMER shall be obligated to pay MS regardless of
whether CUSTOMER has received payment from the Federal Select Customer. All
payments and reports shall be forwarded to:
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Microsoft Corporation
P.O. Box 84808
Seattle, Washington 98124-6108
(b) FAILURE TO RECEIVE FEDERAL SELECT CUSTOMER'S REPORT
In the event MS fails to receive a copy of a given Federal Select Customer's
report within 20 days of the end of a given calendar quarter, then MS shall be
entitled to invoice CUSTOMER based upon a prorata share of the number of
Federal Select Software Products forecasted to be acquired by the given Federal
Select Customer. Such prorata share shall be determined by dividing the given
Federal Select Customer's total forecast(s) by the number of calendar quarters
originally encompassed under its Master Agreement, and shall be the minimum
amount for which CUSTOMER shall be obligated to pay MS. CUSTOMER shall be
obligated to pay such invoice regardless of whether CUSTOMER receives payment
or a report for the same quarter from its Federal Select Customer. If a report
is subsequently received from the Federal Select Customer in question and such
report indicates a number different than the prorata amount described above,
then MS and CUSTOMER shall reconcile such difference and CUSTOMER shall timely
pay the difference to MS if an additional amount is owed or shall offset such
reconciled amount against the amount(s) next owed by CUSTOMER to MS under this
Agreement.
(c) CONSEQUENCES OF FAILURE OF FEDERAL SELECT CUSTOMER TO MEET
FORECASTS
If at the end of the second (2nd) full calendar quarter of a Select Customer's
Master Agreement, the Select Customer has failed to acquire at least * of the
minimum level of Select Software Products forecasted to be acquired under that
Select Customer's Master Agreement (i.e., level A, B or C as the case may be),
then CUSTOMER's purchase price for all further acquisitions related to that
given Select Customer shall be adjusted accordingly to be calculated based upon
a lower level consistent with the given Select Customer's consumption rate to
the end of the second full calendar quarter (e.g. from level "B" to level "A").
In no case shall the Select Customer's commitment level be less than level A.
5.3 TAXES
(a) SALES TAX
CUSTOMER shall either provide MS with a bona fide resale certificate for all
Federal Select License Pak(s) delivered to CUSTOMER by MS pursuant to the terms
of this Agreement, or shall pay to MS all applicable sales, use or other excise
taxes due on such Federal Select License Pak(s).
(b) WITHHOLDING TAXES
In the event taxes are required to be withheld by any government on payments
required hereunder, CUSTOMER may deduct such taxes from the amount owed and pay
such taxes to the appropriate tax authority; provided, however, that CUSTOMER
shall promptly secure and deliver to MS an official receipt for any such taxes
withheld or other documents necessary to enable MS to claim a foreign tax
credit. CUSTOMER shall make certain that any taxes withheld are minimized to
the extent possible under the applicable law.
(c) EXPORT TAXES
CUSTOMER shall be liable for all taxes of any nature whatsoever associated with
the distribution of the Federal Select License Pak(s) outside of the Territory
and shall indemnity and hold MS harmless from any such taxes.
*CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC.
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5.4 CUSTOMER'S REPORTING REQUIREMENTS
CUSTOMER shall electronically report to MS as part of CUSTOMER's standard
Electronic Data Interchange ("EDI") Reporting, all sales of copies of Federal
Select Software Products to CUSTOMER's Federal Select Customers. In addition,
Field 25 of the CUSTOMER's AMS Reporting must be populated with the number "7"
for all sales of Federal Select reported. Sales of copies of Federal Select
Software Products shall be reported for the month in which payment is
collected.
6. AGREEMENTS BETWEEN CUSTOMER AND ITS FEDERAL SELECT CUSTOMERS
With the exception of the terms contained in this Agreement, the Master
Agreement, the Enrollment Agreement and the terms relating to the exercise of
the intellectual property rights set forth in the applicable Federal Select
License Pak(s) and Master Agreement, CUSTOMER shall have complete discretion to
establish with each Federal Select Customer the pricing and all other terms and
conditions regarding CUSTOMER's provision of Federal Select License Pak(s) and
their associated license rights to CUSTOMER's Federal Select Customers. The
negotiation of these terms between CUSTOMER and its Federal Select Customers
shall not be subject to approval or review by MS in any way.
7. RESERVATION OF RIGHTS
In the event the Federal Select Customer fails to comply with the terms of
either the Master Agreement, the Enrollment Agreement or the Federal Select
License Pak(s), CUSTOMER agrees, at the request of MS, to use CUSTOMER's best
efforts, including without limitation undertaking any necessary litigation, to
enforce the Master Agreement or the Enrollment Agreement in order to compel the
Select Customer to comply with such Agreements. If MS requests CUSTOMER to
enforce its rights against a given Federal Select Customer, CUSTOMER shall not
have any claim against MS or the Federal Select Customer for damages or lost
profits resulting from such enforcement action.
8. ROLE OF THE FEDERAL SELECT PROGRAM ADMINISTRATOR
CUSTOMER agrees to notify MS in writing within ten (10) days of the date first
set forth above, of the name, address and telephone number of the individual
assigned to serve as CUSTOMER's Federal Select Program Administrator. CUSTOMER
agrees to promptly make that individual as well as CUSTOMER's other sales
employees available for training on the Federal Select License Pak(s) and on
the licensing policies related to such products at such times and places as MS
reasonably requests. The individual appointed by CUSTOMER as its Federal Select
Program Administrator shall be an individual generally knowledgeable on MS
products and in regard to Microsoft's Federal Select Program. The Federal
Select Program Administrator shall be responsible for administering all of
CUSTOMER's Federal Select Customer billings, for general administration of
CUSTOMER's Federal Select Customers and for working with the Microsoft Federal
Select Account Manager (or local MS contact) in regard to any problems relevant
to a given Federal Select Customer. CUSTOMER shall provide MS with at least ten
(10) days advance written notice of any change in the individual serving as its
Federal Select Program Administrator.
9. CUSTOMER'S REPRESENTATIONS AND WARRANTIES
CUSTOMER hereby represents and warrants that:
9.1 It will use its best effort to service and support its Federal
Select Customers and will promptly inform the appropriate Microsoft Federal
Select contact of any difficulties it encounters in servicing its Federal
Select Customers:
9.2 It will not alter in any way or form the Federal Select
License Pak(s) or their packaging;
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9.3 It will only deliver the Federal Select License Pak(s) to the
Federal Select Customer specified on the outside of the Federal Select Product
packaging and will only deliver Federal Select CD-ROMs and program materials and
information to the Federal Select Customer named on each such CD-ROM or
materials;
9.4 It will promptly inform MS of any known or suspected
violations by a Federal Select Customer of the terms and conditions of the
Master Agreement, Enrollment Agreement and/or its Federal Select License
Pak(s); and
9.5 It will have an internal technical staff which will provide
primary telephone support to its Federal Select Customers in regard to the use
and support of MS software products.
10. AUDIT RIGHTS
CUSTOMER shall keep all usual and proper records and books of account relating
to its performance of this Agreement, including complete records pertaining to
Federal Select End User information. MS reserves the right to audit CUSTOMER's
books and records of account during the term of this Agreement and for a period
of two (2) years thereafter, provided that such audit(s) shall be conducted
during normal business hours in such a manner as not to unreasonably interfere
with the operations of CUSTOMER. MS' right to audit pursuant to this Agreement
shall be strictly limited to those records and books resulting from this
Agreement.
11. MISCELLANEOUS
11.1 LIMITATION OF LIABILITY
NEITHER MS NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION,
OR DELIVERY OF THE PRODUCTS WHICH ARE THE SUBJECT OF THIS AGREEMENT SHALL BE
LIABLE FOR ANY INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING DAMAGES
FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS
INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE
PRODUCTS EVEN IF MS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 ENTIRE AGREEMENT
This Agreement, together with all attachments hereto, comprises the entire
agreement of the parties on the subject matter hereof. This Agreement shall not
be amended except in a written document signed by authorized representatives of
MS and CUSTOMER.
11.3 NO ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, provided that neither party
may not assign its rights or obligations under this Addendum in any way without
the prior written consent of the other party.
11.4 EXPORT RESTRICTIONS
CUSTOMER confirms that it will not export or re-export, directly or indirectly,
any of the Federal Select License Pak(s), Federal Select Software Products or
documentation SKUs to countries or companies which are subject to export
restrictions for sensitive product, provided for by applicable law and
regulations, without the prior written consent of the competent authorities
having jurisdiction to grant any required approval. CUSTOMER acknowledges that
the Federal Select Software Products and the documentation SKUs may include
technical data subject to export and re-export restrictions imposed by United
States law.
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11.5 ESSENTIAL ELEMENT
CUSTOMER acknowledges that this Addendum is essential to any agreement it
enters into with a Federal Select Customer. Except as is specifically provided
in Section 3.3 related to CUSTOMER's right to collect any outstanding payment
following termination of this Agreement, CUSTOMER's rights to supply Federal
Select License Paks, Federal Select CD-ROMs and/or any additional program
information and materials, and to collect payment from its Federal Select
Customers are conditional upon this Addendum being in full force and effect.
CUSTOMER acknowledges further that, if and when it is the subject of a
bankruptcy filing (under any Chapter of 11 United States Code Section 101 et
seq. including any further amendments), then assumption of any contract with a
Federal Select Customer is conditional upon the assumption of this Agreement.
11.6 U.S. GOVERNMENT RESTRICTED RIGHTS
Any Product which CUSTOMER distributes or licenses to or on behalf of the United
States of America, its agencies and/or instrumentalities (the "Government"), are
provided to CUSTOMER with RESTRICTED RIGHTS. Use, duplication or disclosure by
the Government is subject to restriction as set forth in subparagraph (c)(1)(ii)
of the rights in Technical Data and Computer Software clause at DFAR
252.227-7013, or as set forth in the particular department or agency regulations
or rules which provide MS protection equivalent to or greater than the
above-cited clause. CUSTOMER shall comply with any requirements of the
Government to obtain such RESTRICTED RIGHTS protection, including without
limitation, the placement of any restrictive legends on the Product software,
Product documentation, and any license agreement used in connection with the
distribution of the Product. Manufacturer is Microsoft Corporation, One
Microsoft Way, Redmond, Washington 98052-6399. Under no circumstances shall MS
be obligated to comply with any Governmental requirements regarding the
submission of or the request for exemption from submission of cost or pricing
data or cost accounting requirements. For any distribution or license of the
Product that would require compliance by MS with Governmental requirements
relating to cost or pricing data or cost accounting requirements, CUSTOMER must
obtain an appropriate waiver or exemption from such requirements for the benefit
of MS from the appropriate Governmental authority before the distribution and/or
license of the Product to the Government.
11.7 CONFIDENTIALITY
CUSTOMER expressly undertakes to retain in confidence the terms and conditions
of this Agreement, and all information and know-how transmitted to it by MS and
make no use of such information and know-how except under the terms and during
the existence of this Agreement. CUSTOMER shall guarantee and ensure its
employees' compliance with this paragraph. CUSTOMER's obligations under this
paragraph shall survive any termination of this Agreement and shall extend to
the earlier of such time as the information is public domain or five (5) years
following the termination of this Agreement.
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IN WITNESS WHEREOF, the parties have signed this Agreement on the date
indicated below. This Agreement is not binding until executed by MS.
AGREED AND ACCEPTED TO BY AGREED AND ACCEPTED TO BY
MICROSOFT CORPORATION ("MS"): SOFTWARE SPECTRUM, INC.
("CUSTOMER")
/s/ JOHAN LIEDGREN /s/ KEITH R. COOGAN
- - -------------------------------- -----------------------------------
By By
Johan Liedgreen Keith R. Coogan
- - -------------------------------- -----------------------------------
Name Name
Director, Channel Policies Vice President of Operations
- - -------------------------------- -----------------------------------
Title Title
March 6, 1995 February 27, 1995
- - -------------------------------- -----------------------------------
Date Date
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