_AdHocReviewCycleID137578214_EmailSubjectAptus/Andre
revisions_AuthorEmailDBruce@SB-Texas.com_AuthorEmailDisplayNameDan Bruce
Purchase Agreement - Exhibit E
DISTRIBUTION AGREEMENT
THIS AGREEMENT, made and entered into between Aptus, Corp., a Delaware
corporation (hereafter called Aptus), and Mark Andre (hereafter called the
DEVELOPER),
WITNESSETH:
WHEREAS, Aptus's core business includes software solutions and proprietary
technology; and
WHEREAS, the DEVELOPER has executed an Asset Purchase Agreement selling to Aptus
his entire rights, title and interest in and to the development of the Source
Code of Appgen Run Time and related Software Products and any other products
that are hereafter developed which are in whole, or in part, derivatives of such
code and/or products (hereafter collectively called the "CODE"), and,
WHEREAS, Aptus and the DEVELOPER wish to enter into an agreement governing the
distribution of the income from the commercial exploitation of their mutual
product, the CODE.
NOW THEREFORE, in consideration of the mutual promises hereafter set forth, the
parties agree, as follows:
1. Definition
For the purposes of this Agreement, distributions shall be
defined as the gross proceeds from the sale, rental, use, licensing or other
commercial transactions or uses with respect to the CODE.
2. Distribution
Distributions shall be as follows:
A. From the Platinum VAR at $900 per month on 5.5% to the
DEVELOPER paid invoices.
B. From all other direct and indirect sources 5.5% to the
DEVELOPER: on paid invoices.
C. Reports: Within thirty (30) days after the end of the calendar
quarter annual period, Aptus shall make a written report to
DEVELOPER setting forth the gross sales of Licenses sold by Aptus
and fully paid on by sources. If there are no gross sales and/or
receipts, a statement to that effect will be made by Aptus. At
the time each report is made, Aptus shall pay to DEVELOPER the
distributions by such report.
D. Distribution statements and payments to DEVELOPER shall be
deemed to be final unless written notification by DEVELOPER to
Aptus is made within 120 days specifying the reasons such
statements and payments are unacceptable.
E. Upon such written notice by DEVELOPER to Aptus, the accounting
books of Aptus which involve the DEVELOPER'S distributions shall
be made available to a representative or representatives of
DEVELOPER to the extent necessary to verify the reports provided
for in paragraph C hereof. If the audit determines that DEVELOPER
was underpaid for the period in question, Aptus shall, within
thirty (30) days thereafter, pay to DEVELOPER the amount of
DEVELOPER's underpayment of Distributions, together with interest
from the time of such underpayment at the annual rate of eight
percent (8%). If the audit determines the amount of DEVELOPER's
underpayment was eight percent (8%) or more than the correct
amount for the period in question, Aptus shall pay the reasonable
costs of the audit(s), with such payment(s) to be made within
thirty (30) days of the final determination. If the audit
determines the amount of DEVELOPER's underpayment was less than
eight percent (8%) than the correct amount for the period in
question, DEVELOPER shall pay the reasonable costs of the
audit(s), with such payment(s) to be made within thirty (30) days
of the final determination.
F. Such distributions shall continue to an aggregate maximum of
$1,500,000.00. Notwithstanding the provisions contained above,
beginning the second calendar quarter of the year 2004, and
continuing every calendar quarter thereafter during the term of
this Agreement, a minimum distribution of $5,000.00 per quarter
shall be paid to DEVELOPER within thirty (30) days of the last
day of each calendar quarter. In the event that the Distribution,
as calculated in sections A and B above would exceed such minimum
distribution amount, the larger amount shall be paid to
DEVELOPER.
3. Promotion
A. Aptus agrees to use its best reasonable efforts to promote
the sale, distribution, licensing and any other use of the
CODE.
B. The DEVELOPER shall also have the right to promote the
sale, distribution, licensing and any other use of the
CODE; provided, however, that
i. No Aptus funds are required to be spent
without the prior approval of Aptus, and
ii. Aptus give its prior approval, which
approval shall not be unreasonably withheld,
to any promotion of the CODE; in addition,
such promotion must not conflict with any
promotional effort or other transaction on
the part of Aptus it must meet established
Aptus standards of professionalism.
4. Miscellaneous
A. This Agreement shall take effect upon the closing of the
Asset Purchase Agreement of which this Agreement is
attached as Exhibit E.
B. No amendment to this Agreement shall be effective unless
it is in writing and signed by all parties hereto.
C. This Agreement constitutes the entire understanding
between the parties concerning the CODE and supersedes all
negotiations, preliminary agreements or understandings,
either written or oral.
D. Submission to Jurisdiction. Each of the Parties submits to
the jurisdiction of any state or federal court sitting in
the State of New York in any action or proceeding arising
out of or relating to this Agreement and agrees that all
claims in respect of the action or proceeding may be heard
and determined in any such court.
E. Should any portion of this Agreement be found invalid by a
court of competent jurisdiction, the remaining terms and
conditions hereof shall continue in full force and effect.
F. This Agreement shall be binding upon and inure to the
benefit of the parties named herein and their respective
heirs, successors and permitted assigns. DEVELOPER may
assign either this Agreement or any of his rights,
interests, or obligations hereunder with or without the
approval of Aptus.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement on the dates
that appear below.
/s/ Mark Andre January 23, 2004
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Mark Andre, DEVELOPER Date
APTUS, CORP.
By /s/ John P. Gorst Date January 23, 2004
John P. Gorst, President