EXHIBIT 10.5 Summary Translation of Trademark Agreement between Intershop Holding AG ("IH") and lntershop Communications, Inc / lntershop Communications GmbH ("IC") May 8, 1998 Sect. 1. Actions to be taken by IC to avoid confusions 1.1 IC will not have a company registered in Switzerland or listed on a Swiss stock exchange with "Intershop" in its tradename. 1.2 IC does not use "Intershop" in a tradename without an element in addition which is comparable with "Communications". 1.3 In all advertisements and an all products IC uses its full tradename. 1.4 IC on its home page under "company" indicate immediately that IC is independent from IH, a company listed on the Swiss stock exchange SWX, 1.5 IC indicates its full tradename on each page of its web site. 1.6 In its advertisements and in other announcements addressed to the Swiss public, IC indicates clearly that it is independent from IH, a company listed on the Swiss stock exchange SWX. 1.7 Sect, 1.1 - 1.6 are valid as long a IH has "Intershop" in its tradename. 1.8 IC will not let out shopping malls and will not commercially deal with real estate in Switzerland, Liechtenstein, Germany, Austria, France, Tschekoslovakia and in the USA under a tradename which includes "Intershop". The same applies for countries in which I H will let out shopping malls or comrhercially deal with real estate prior to IC. This sed. applies only where and as long as IH has "Intershop" in its tradename. Sect. 2. Discontinuation of all litigation Within 1 0 days after closing, IH will discontinue all court and adminstrative proceedings against IC, The parties do not claim any compensation for their attorney's fees and split the court fees. Sect. 3. Mutual acceptance of the validity and of the use of trademarks, tradenames and domain names
3.1 IC and IH mutually accept the validity and the use of their trademarks, tradenames and domain names in connection with the products and services for which they are used today (IC-. development and commercialisation of computer programs for sale and resale on the Internet and other direct data carriers within class 9, telecommunication within 38 and developement of computer software within under 42, IH, business administration within class 35, financial and related services Within class 36, construction works within class 37, letting out of real estate within class 39, services in connection with buildings within class 42) in all countries. 3.2 IH explicitly accepts that IC will have its shares listed on a German stock exchange. Sect. 4. Swiss law applies Sect. 5. Warranty for related companies sect. 6. Joint guarantee Joint guarantee of IC for PESI for the Agreement signed between IH and PEBI on the same day Sect. 7. No other claims in connection with "Intershop" Attachment I (Goods and services of lntershop Communications) Development and utilization of computer and other direct media, in particular data storage devices in accordance with class 9, telecommunications in accordance with class 38, and creating computer programs in accordance with class 42.
EXHIBIT 10.6 SUMMARY Loan Agreement Between Wilfried Beeck and Intershop Communications AG
Parties Loan Amount Wilfried Beeck and Intershop Communications,AG Up to Euro 7,000,000 by Mr. Beeck to INTERSHOP Communications AG. Working capital credit ("Betriebsmittelkredit") in form of an overdraft credit without earmarking for a specific purpose. 6% per year. The amount has to be transferred in total or partly upon request by the borrower to its account at Commerzbank Jena (Germany) within five (5) business days (overdraft credit). Assignment of all current, open claims of Intershop Communications AG and all of its affiliated companies except Intershop Communications Inc. Three months' notice without cause, or immediately with cause (e.g., the delay of interest repayments, special breach of contract, making of false statements with respect to the granting or the continued granting of the loan, opening of certain proceedings related to the borrower's bankruptcy, or final suspension of payments) The loan is due in total on the day on which the agreement has been terminated. The borrower can repay the loan in total or in installments at any time.
Interest Rate Delivery of Funds
The laws of the Federal Republic of Germany.
EXHIBIT 10.7 SUMMARY Loan Agreement Between Stephan Schambach and Intershop Communications AG
Parties Loan Amount Stephan Schambach and Intershop Communications AG Up to Euro 5,000,000 by Mr. Schambach to INTERSHOP Communications AG. Working capital credit ("Betriebsmittelkredit") in form of an overdraft credit without earmarking for a specific purpose. 6% per year. The amount has to be transferred in total or partly upon request by the borrower to its account at Commerzbank Jena (Germany) within five (5) business days (overdraft credit). Assignment of all current, open claims of INTERSHOP Communications Inc. Three months' notice without cause, or immediately with cause (e.g., the delay of interest repayments, special breach of contract, making of false statements with respect to the granting or the continued granting of the loan, opening of certain proceedings related to the borrower's bankruptcy, or final suspension of payments) The loan is due in total on the day on which the agreement has been terminated. The borrower can repay the loan in total or in installments at any time.
Interest Rate Delivery of Funds
The laws of the Federal Republic of Germany.
EXHIBIT 10.8 Persistence Software License, Services, and Support Agreement CONFIDENTIAL Persistence Software License, Services, and Support Agreement 1. Definitions. 1.1. "Application" means any software application developed by Intershop using the Software or including any Objects. Intershop represents and warrants that the description of the Application set forth on the Cover Sheet is true and correct. 1.2. "Cover Sheet" means the cover page to this Agreement. 1.3. "End User(s)" means (a) if Intershop is a VAR, end user customers of VAR which acquire the Application for their business purposes and not for resale or for any other purpose, or (b) Intershop itself, if Intershop is licensing the Software for its own use as set forth on the Cover Sheet. 1.4. "Maintenance Services" means the provision of releases under Section 8, if purchased as set forth on the Cover Sheet. 1.5. "Objects" means objects generated by Intershop's use of the Software in accordance with its documentation, however Objects shall not be deemed to include any example or demonstration objects included with the Software. 1.6. "Object Code" means the machine executable version of a software program. 1.7. "PowerTier" means PSI's proprietary Object Server middleware application server which manages an object cache containing data from a database and all documentation thereto, as delivered to Intershop hereunder. 1.8. "Professional Services" means consulting services provided on a per- day basis as set forth on the Cover Sheet. 1.9. "Releases" means all revisions, updates, modifications or enhancements PSI may make to the Software under the Agreement. 1.10. "Services" means the Professional Services, the Support Services, and the Maintenance Services. 1.11. "Software" means the PSI software programs listed on the Cover Sheet. 1.12. "Support Services" means the Support Services as set forth in Section 8, if purchased as set forth on the Cover Sheet. 1.13. "VAR" means value-added applications integrators licensed under this Agreement to develop and license end-user applications integrating the Objects. 1.14. "Work Product" means any application developed in a Rapid Applications Development Lab and/or any code written by PSI personnel. 1
****CONFIDENTIAL TREATMENT REQUESTED 1.15. "Affiliates" means any corporation, partnership, joint venture or other entity or person controlled by Intershop Communications AG. For purposes of this definition, the term "control" shall mean the direct or indirect beneficial ownership of 50% or more of the voting interests (representing the right to vote for the election of directors or other managing authority) in an entity. 2. License. 2.1. VAR License. If Intershop is a VAR, the terms of this Section 2.1 shall apply. 2.1.1. Development and Deployment License. Subject to the terms and conditions of this Agreement, PSI hereby grants VAR a worldwide non-exclusive, nontransferable, limited, fee-bearing license to use the Software internally, only in Object Code and only in the environment(s) set forth on the Cover Sheet, solely for purposes of: (i) developing the Application(s) and creating Objects, (ii) demonstrating the Application(s) to potential customers, (iii) providing training in the use of the Application(s) to VAR's employees and End Users, and (iv) providing support for the Application(s) and Objects to End Users. 2.1.2. Limited Distribution License. Subject to the terms and conditions of this Agreement, and limited to the number of Licenses purchased as detailed on the Cover Page of this Agreement, PSI grants VAR a nonexclusive, royalty-bearing, non-transferable license to reproduce, translate into spoken languages, distribute (by any means known or hereafter developed, including electronic distribution), sublicense, market, promote and grant third parties such rights regarding the PowerTier Software, but solely (i) in Object Code, (ii) only when embedded in an Application or sold as part of or in connection with VAR's standard products. Intershop will distribute the Applications and documentation under terms not materially less protective of the rights of PSI than those Intershop uses for its other products or in accordance with a license agreement substantially similar to the end user license agreement terms attached hereto as Exhibit A (which may be amended from time to time in PSI's sole discretion). In addition, PSI grants VAR a non-exclusive, non-royalty-bearing, non-transferable license to prepare, use, reproduce, translate, sublicense, market, promote and distribute derivative works (such derivative works will be subject to PSI's prior approval) of the associated documentation to incorporate in Intershop's documentation for the Applications. Intershop may grant to its distribution channels (including original equipment manufacturers) the rights set forth above., give them approval rights of any derivative works 2.1.3. Limited Right to Reproduce. Subject to the terms and conditions of this Agreement, PSI hereby grants VAR a non-exclusive, non- transferable, limited license to make up to **** of the Software, in Object Code only, and only for archival or backup purposes. VAR shall not modify, translate or create derivative works of all or any part of the Software. VAR may not distribute such archived or backup copies and such must be kept on VAR's premises. 2.1.4. Trademark License. Intershop and its channels of distribution may but are not required to use PSI trademarks and logos set forth in Exhibit B applicable to the Software in connection with the activities contemplated under this 2
Agreement. On PSI's request, Intershop will furnish PSI with a sample of such trademark usage. Subject to the terms and conditions of this Agreement, PSI hereby grants VAR a non-exclusive, non-transferable license to use the PSI trademarks, trade names and logos set forth in Exhibit B (as amended from time to time by PSI in its sole discretion) (the "Marks"), solely in connection with the marketing of copies of the Application(s). Except for the right to use Marks as set forth in this Section, nothing contained in this Agreement shall be construed to grant VAR any right, title or interest in or to any trademarks, trade names or logos of PSI or any third party supplier to PSI. VAR shall not challenge PSI's ownership of the Marks. VAR will maintain a high quality standard in producing and marketing the Application(s). 2.1.5. Proprietary Rights Notice. VAR agrees to reproduce and include any copyright or other proprietary rights notices of PSI in all copies, in whole or in part, of the Software. VAR need not include a copyright notice on any Application(s), except on the inside front cover of any associated documentation. VAR will not in any case remove or alter any proprietary notices on or in the Software; however in no event will VAR be requited to include, or reproduce a copyright or other proprietary notice on the Application. 2.2. End User License. If Intershop is an End User, subject to the terms and conditions of this agreement, PSI grants Intershop a personal, non- exclusive, nontransferable, restricted right to use one or more copies of the Software, as set forth on the Cover Sheet or the applicable license certificates in the country in which Intershop acquired the software for Intershop's own internal business purposes. Such use shall consist of loading the software into the temporary memory (i.e., RAM) or installing the software on the permanent memory (e.g., hard disk, CD-ROM, or other storage device) of the number of computers set forth on the Cover Sheet. Intershop may not permit multiple users to use the software over a network or by other means unless so specified on the applicable license certificate. Intershop may either (i) make one (1) copy of the software solely for purposes of having a backup copy, provided that Intershop reproduce on that copy all copyright notices and any other confidentiality or proprietary legends that are on the original copy of the software, or (ii) transfer the software to a single hard disk provided Intershop keep the original solely as a backup copy. Intershop may transfer its permitted copies of the software to different computers only if Intershop removes the copy in its entirety from the prior computer and does not exceed the total allowable number of copies. Intershop understands that PSI may update the Software at any time and, except as set forth herein, in doing so incurs no obligation to furnish such updates to Intershop pursuant to this Agreement unless Intershop pays PSI separately for such updates and Intershop agrees that such updates, if any, shall be subject to this Agreement. All Software and any Releases will be delivered hereunder F.O.B. PSI facilities and will be deemed accepted upon delivery. 2.3. Reservation of Rights. PSI reserves all rights in the Software and in any intellectual property rights PSI may create or acquire by performing Services which are not expressly granted to Intershop in this Agreement. 3. No Reverse Engineering. Except as expressly permitted by applicable law, Intershop shall not decompile, reverse engineer or otherwise attempt to derive, obtain or modify the source code of the Software, or assist or encourage any third party to do so. If Intershop is a VAR Intershop further agrees that End Users shall not be provided with access 3
to any source code for the Software, and shall not be permitted to modify the functionality of the any Application in any way. 4. Ownership. PSI retains title to the Software. PSI Shall have no ownership interest in Intershop's products (including the Applications), other than the rights in the Software described in the preceding sentence. Customer acknowledges that the licenses granted pursuant to this Agreement do not provide Customer with any right, title or ownership of the Software or any PSI intellectual property right except the license rights expressly granted herein or as otherwise identified below. 5. Fees and Payment. 5.1. Software Use License Payment. Intershop shall pay PSI the fee set forth on the Cover Sheet in U.S. Dollars. Intershop agrees to pay the fee within thirty (30) days of the Effective Date of this Agreement. 5.2. PowerTier and Object Deployment Fees and Payment. Intershop shall pay PSI in full for all items specified on the Cover Sheet in U.S. Dollars within thirty (30) days of any invoice being raised (for royalty payments, such invoices will be raised quarterly) by PSI for said items. For each End User to which an Application has been delivered the Intershop shall maintain (but need only deliver to PSI only information reasonably needed by PSI to verify the calculation of quarterly royalties payable) the following detailed information: company name and location, technical support contact, phone/fax numbers, hardware and database platforms used, number of copies of the Application(s) licensed, and sales value of the Application(s) delivered to the enduser. Payment by Intershop shall include support for each End User as set forth herein. 5.3. Services Payments. 5.3.1. PSI will invoice Intershop upon the Effective Date for the initial year of this Agreement and thereafter within ninety (90) days prior to the end of each subsequent year of this Agreement for the applicable annual Support Services fees and Maintenance Services fees for the subsequent year. All payments shall be made by Intershop to PSI in U.S. Dollars within thirty (30) days of issuance of invoice. If Intershop does not pay PSI such amounts prior to the beginning of the next year of this Agreement, then PSI may elect to withhold from Intershop such Support Services. The withholding of Support Services by PSI does not release Intershop from any obligations arising from this Agreement nor does it release Intershop from the obligation to pay for Support Services contracted for in this Agreement nor does it constitute a breach of this Agreement. 5.3.2. PSI shall invoice Intershop monthly for any Professional Services All payments shall be made by Intershop to PSI in U.S. Dollars within thirty (30) days of issuance of invoice for Professional Services. 5.4. Incidental Expenses. Intershop shall reimburse PSI for all pre- approved and reasonable travel and living expenses incurred by PSI in conjunction with performing the 4
Professional Services if performance of such services include any visits to Intershop's facilities. All payments shall be made by Intershop to PSI in U.S. Dollars within thirty (30) days of issuance of invoice for Incidental Expenses. 5.5. Taxes and Interest. The fees set forth herein exclude all applicable sales, use and other taxes, and Intershop will be responsible for payment of all such taxes (except those based on PSI's income), fees, duties and charges, and any related penalties and interest arising from the payment of the fees. Any portion of the fees set forth above that is not paid when due will accrue interest at a rate of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. 5.6. Records and Audit. Intershop shall maintain complete, clear, accurate records of the number of units of Applications distributed, sold or otherwise transferred or deployed, returns and credits therefor, and payments received. Upon 10 days' prior notice, PSI shall have the right to have an inspection and audit of all the relevant accounting and sales books and records of Intershop conducted by an auditor reasonably acceptable to both parties. Any such audit shall be upon reasonable written notice and shall be conducted during normal business hours no more than twice per year. If any such audit should disclose any underreporting or underpayment of amounts due, Intershop shall promptly pay PSI such amounts, including applicable interest. If the underreporting exceeds five percent (5%) of the total amounts due, Intershop shall bear the cost of such audit. 6. Delivery. PSI shall deliver a License Certificate corresponding to the number of concurrent users and type of Software specified on the Cover Sheet to Intershop within fifteen (15) business days after execution of this Agreement. The Software shall be deemed accepted by Intershop upon delivery to Intershop. 7. ESCROW Concurrently with the execution of this Agreement, Intershop, PSI and an escrow agent mutually acceptable to the parties shall enter into a software escrow agreement upon terms and conditions mutually agreeable to the parties which shall provide for the release of the source code of the Software to Intershop for the purposes and upon the occurrence of the release conditions described in Exhibit D hereto. 8. Maintenance Services. 8.1 Support of Intershop. PSI agrees to provide Intershop with the technical support, error corrections, bug fixes, enhancements, ports to additional platforms, upgrades and updates with respect to the Software and Documentation as further described in Exhibit C. 8.2 End User Support. PSI shall provide back-end support to Intershop, as further described in Exhibit C, but shall not be required to provide front-line support to end users of the Applications ("End Users"). Intershop may, in its sole discretion, determine the terms and conditions of such support and charge End Users a fee in connection therewith. 8.3 Training of Intershop. PSI shall provide training to Intershop 5
employees, independent contractors and consultants in accordance with the provisions set forth in Exhibit C. 9. Professional Services. PSI will provide Professional Services to Intershop as defined in Section 1.8. 9.1 Fees. Professional Services are provided on a daily fee basis as detailed on the Cover Sheet of this agreement. Professional Services are additive to, and not included in, fees paid for Support and Maintenance Services. Payment for Professional Services by Intershop to PSI shall be made in U.S. Dollars within thirty (30) days of issuance of invoice for Professional Services. 9.2 Method of Performing Services. PSI will determine the method, details, and means of performing the work to be carried out for Intershop. Intershop shall have no right to and shall not, control the manner or determine the method of accomplishing such work. Intershop may, however, require PSI's personnel to observe at all times the security and safety policies of Intershop. In addition, Intershop shall be entitled to exercise a broad general power of supervision and control of the results of work performed by PSI personnel to ensure satisfactory performance including the right to inspect, stop work, make suggestions or recommendations as to the detail of the work. 9.3 Scheduling. PSI will attempt to accommodate work schedule requests of the Intershop to the extent possible. Should any personnel of PSI be unable to perform scheduled services because of illness, resignation, or other causes beyond PSI's reasonable control, PSI will attempt to replace such personnel immediately, but PSI shall not be liable for failure if it is unable to do so, giving due regard to its other commitments and priorities. 9.4 Reporting. Intershop will advise PSI of the individuals to whom PSI's personnel will report progress on dayto-day work. Intershop and PSI shall develop appropriate administrative procedures for the performance of work at Intershop's site. Intershop shall, at the Intershop's option, periodically prepare an evaluation of the work performed by PSI personnel for submission to PSI. 9.5 Expenses. Intershop shall be responsible for all travel and living expenses incident to the performance of the services for the Intershop. These expenses will be collected as incurred and invoiced to Intershop monthly. 9.6 Ownership. All copyrights, patents, trade secrets, or other intellectual property rights associated with any ideas, concepts, techniques, inventions, processes or works of authorship developed or created by PSI or its personnel prior to commencement of work hereunder or during the course of performing Customer's work and all Work Product shall belong exclusively to PSI. PSI hereby grants to Customer an unrestricted, irrevocable, non-exclusive, perpetual, worldwide license to use for its internal business purposes the Work Product within the scope of the services provided hereunder. Intershop will own all extensions, modifications, and derivative works to the Software (subject to PSI's underlying Software) developed by Intershop. PSI will not license ideas, concepts, techniques, inventions, processes or works of authorship developed or created by PSI or its personnel primarily for or on behalf Intershop to competitors of Intershop without Intershop's prior 6
written consent. 10. Confidentiality. 10.1 Confidentiality. Each party shall maintain in confidence all Confidential Information (as defined below) disclosed by the other party hereto. The receiving party (the "Recipient") agrees that it shall not use, disclose or grant use of such Confidential Information except as expressly authorized by the disclosing party hereunder. Recipient hereby agrees to use at least the same standard of care as it uses to protect its own confidential information of a similar nature, but not less than a reasonable degree of care, to ensure that its employees, agents or consultants do not disclose or make any unauthorized use of such Confidential Information. Recipient shall promptly notify the disclosing party (the "Discloser") upon discovery of any unauthorized use or disclosure of Discloser's Confidential Information. "Confidential Information" means any confidential or proprietary information, source code, plans or any other information relating to any research project, work in process, future development, scientific, engineering, manufacturing, marketing or business plan or financial or personnel matter relating to Discloser, its present or future products, sales, suppliers, customers, employees, investors or business, identified by Discloser as Confidential Information, whether in oral, written, graphic or electronic form. If disclosed in written, graphic or electronic form, the information must be marked as confidential. If disclosed in oral form, such Confidential Information must be reduced to writing and marked as Confidential Information within thirty (30) days following disclosure. The parties agree that the material financial terms of the Agreement will also be considered Confidential Information of both parties. 10.2 Exceptions. The obligations of confidentiality contained in Section 10.1 will not apply to Object Code if Intershop is a VAR, nor will the obligations apply the extent that it can be established by Recipient by competent, documented proof that such Confidential Information' (a) was already known to Recipient, other than under an obligation of confidentiality, at the time of disclosure by the Discloser; (b) was generally available to the public or otherwise part of the public domain at the time of its disclosure to Recipient; (c) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of Recipient in breach of this Agreement; (d) was disclosed to Recipient, other than under an obligation of confidentiality, by a third party who had no obligation not to disclose such information to others; or (c) was developed independently by Recipient without reference to or use of the Confidential Information of Discloser. 10.3 Return of Confidential Information. Each party shall promptly return all Confidential Information it receives to the other party (i) after any termination or expiration of this Agreement, or (ii) upon written notice from the Discloser requesting return of such Confidential Information. 11. Limited Warranties. 11.1 Title. PSI warrants that it has the right to grant the licenses as set forth in this Agreement, and that such licenses to the best of PSI's knowledge do not infringe on any third parties' proprietary or personal rights. PSI further warrants at the time of execution of this Agreement, PSI is unaware of any pending or 7
threatened lawsuits concerning any aspect of the Software. If PSI becomes aware of any pending or threatened lawsuit concerning any aspect of the Software, PSI shall notify Intershop and provide Intershop with all information reasonably related thereto. 11.2 Year 2000. PSI represents and warrants that the Software as delivered is Year 2000 Compliant. PSI agrees to provide Intershop with a copy of the compliance testing results promptly upon request by Intershop. For purposes of this section, "Year 2000 Compliant" means that the Software is designed to be used prior to, during, and after calendar year 1999 and 2000 and that it will operate during each such time period without error relating to date data, and specifically including any errors relating to, or the product of, date data which represents or references different centuries or more than one century. 11.3 Services Warranty. PSI warrants that the Services, if any, will be performed in a workmanlike and professional manner. 11.4 Non-Infringement. Without limiting Intershop's rights under Section 12, should the Software become, or in PSI's opinion be likely to become, the subject of any infringement claim or suit, PSI shall, at its option: A. procure for Intershop the right to continue distributing the Software, as well as the right for Intershop and its customers to continue use of the Software, while maintaining its functionality; or, B. modify the Software such that it no longer infringes the proprietary rights of any third party, while maintaining the functionality, look and feel of the Applications. If none of the foregoing is commercially reasonable and the use of the Software is enjoined, PSI may terminate the license and refund monies paid and Customer shall return the Software. 11.5 Performance. PSI warrants that (a) the media on which the Software is delivered will be free of defects in material and workmanship; (b) the Software will function in accordance with the specifications for the Software in applicable documentation; and (c) the Documentation shall be accurate in all material respects. In the case of a breach of the warranties in this Section 11.5 (and in addition to any rights Intershop may have), PSI shall repair or replace nonconforming, unsuitable or inaccurate Software or Documentation within a reasonable period of time (not to exceed ten (10) days) of notice of such condition. 11.6 DISCLAIMER. THE WARRANTIES PROVIDED BY PSI HEREIN ARE THE ONLY WARRANTIES PROVIDED BY PSI WITH RESPECT TO THE TECHNOLOGY AND DOCUMENTATION. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES BY PSI, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE TECHNOLOGY. 8
12. INDEMNITY. 12.1 Obligations of Each Party. Each party (the "Indemnifying Party") will indemnify, defend and hold harmless the other party (the "Indemnified Party") from all costs, damages, legal fees and settlement fees incurred by the Indemnified Party arising from third party claims arising from the manufacture, use, reproduction or distribution, as permitted under this Agreement, of any content, technology or other information provided by Indemnifying Party to Indemnified Party, including without limitation claims arising out of any alleged infringement or misappropriation of any copyright, trademark, trade secret, patent or other intellectual property right, or violation of any right of privacy or publicity. For the indemnification obligations above to be applicable, the Indemnified Party must (a) promptly notify the Indemnifying Party in writing of any such claim and grant the Indemnifying Party sole control of the defense and all related settlement negotiations, and (b) cooperate with the Indemnifying Party, at the Indemnifying Party's expense, in defending or settling such claim. 12.2 Exclusions from Indemnification. Notwithstanding the foregoing, PSI shall have no indemnity obligation under this Section 12 for any Claim relating to: (i) modifications of the Software made by any entity other than PSI, if such Claim would not have arisen or such infringement or misappropriation would not have occurred but for such modifications, (ii) combination or use of the Software with other products (including without limitation an Application) if such Claim would not have arisen or such infringement or misappropriation would not have occurred but for such combination or use, (iii) use of an outdated version of the Software after PSI has made available an updated version which does not infringe, or (vi) any functionality of the Software made at Intershop's request, if such Claim would not have arisen or such infringement or misappropriation would not have occurred but for such functionality. 12.3 Entire Liability. The foregoing states PSI's entire liability, and Intershop's sole and exclusive remedy with respect to any infringement or misappropriation of any patent, copyrights, trademarks, trade secrets or other intellectual property rights of any third party. 13. LIMITATION OF LIABILITY. EXCEPT FOR BREACHES OF SECTIONS 2, 3 AND 10, EACH PARTY AGREES THAT THE OTHER PARTY WILL NOT BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL. EITHER PARTY'S LIABILITY TO THE OTHER PARTY EXCEED THE PAYMENTS RECEIVED BY PSI FROM CUSTOMER WITHIN THE PRECEDING 12 MONTHS. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION 13 IS AN ESSENTIAL ELEMENT OF THE AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. THE LIMITATIONS IN THIS SECTION 13 SHALL NOT REDUCE THE LIABILITY OF EITHER PARTY UNDER SECTION 12. 9
14. Term and Termination. 14.1 Term. This Agreement shall be effective as of the Effective Date and shall continue in effect for until the Termination Date, unless terminated earlier in accordance with this Section 14. 14.2 Termination for Cause. Either party may terminate this Agreement if the other party breaches a material term or condition of this Agreement and fails to cure such breach following sixty (60) days written notice. 14.3 Survival of Certain Terms. Sections 1 "Definitions", 3 "No Reverse Engineering", 4 "Ownership", 5.2 "PowerTier and Object Deployment Fees and Payments", 5.6 "Records and Audit", 10 "Confidentiality", 11.5 "No Other Warranties", 13 "Limitation of Liability", 14.3 "Survival of Certain Terms" and 16 "General" shall survive any termination of this Agreement. Within thirty (30) days after termination of this Agreement, Intershop shall make no further use of and shall return to PSI, at Intershop's expense, any property, materials or other items (including without limitation all PSI Confidential Information) of PSI. If Intershop is a VAR, Each sublicense of PowerTier permitted hereunder which is in effect as of the termination or expiration of this Agreement may remain in effect under the same terms or others approved by PSI thereafter; provided, that the relevant End User (i) is not in breach of the terms of such sublicense, and (ii) shall thereafter owe all obligations pertaining to its licensee of PowerTier directly to PSI. 14.4 Other Remedies. Nothing contained herein shall limit any other remedies that PSI may have for the default of Intershop under this Agreement nor relieve Intershop of any of its obligations incurred prior to termination of this Agreement. 15. Marketing. PSI and Intershop agree that PSI may issue a press release at a time selected by Intershop but in no event later than the date of first customer shipment of the Application. Intershop shall have prior approval of press release, but agrees not to unreasonably withhold that approval. PSI and Intershop agree that they will hold discussions regarding the possibility of engaging in mutually beneficial marketing activities which may include customer success story, joint participation in media events from time to time, promotion of PowerTier as a core technology embedded in Intershop and various co-branding and co-marketing activities.. 16. General. 16.1 Independent Contractors. The relationship of PSI and Intershop established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to (i) give either party the power to direct and control the day-to-day activities of the other, (ii) constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking, or (iii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. 16.2 Governing Law; Jurisdiction. This Agreement shall be governed by and construed exclusively under the laws of the State of California as between California residents and without reference to conflict of laws principles. The United Nations Convention on the International Sale of Goods shall not apply to this Agreement or the subject matter hereof. Both parties agree to submit to the exclusive jurisdiction and venue of and agree that 10
any cause of action arising under this Agreement shall be brought in a court in San Mateo County, California. 16.3 Notices. Any notice required or permitted to be given under this Agreement shall be delivered (i) by hand, (ii) by registered or certified mail, postage prepaid, return receipt requested, to the address of the other party set forth on the cover page hereto, or to such other address as a party may designate by written notice in accordance with this Section 16.3, (iii) by overnight courier, or (iv) by fax with confirming letter mailed under the conditions described in (ii). Notice so given shall be deemed effective when received, or if not received by reason of fault of the addressee, when delivered. 16.4 Nonassignability and Binding Effect. Intershop agrees that its rights and obligations under this Agreement may not be transferred or assigned directly or indirectly without the prior written consent of PSI. PSI may assign this Agreement upon written notice to Intershop. Subject to the foregoing sentence, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. Any assignments in violation of this Section shall be null and void. 16.5 Export Control. Since this Software is subject to the export control laws of the United States, Intershop may not export or re-export the Software without the appropriate United States and foreign government licenses. Intershop shall otherwise comply with all applicable export control laws and shall defend, indemnify and hold PSI and all PSI suppliers harmless from any claims arising out of Intershop's violation of such export control laws. Intershop further agrees to comply with the United States Foreign Corrupt Practices Act, as amended. 16.6 Restricted Rights Notices. The Software is a "commercial item," as such term is defined at 48 C.F.R. (S) 2.101 (OCT 1995), consisting of "commercial software" and, along with the documentation thereto, "commercial computer software documentation" as such terms are used in 48 C.F.R. (S) 12.212 (SEPT 1995). Consistent with 48 C.F.R. (S) 12.212 and 48 C.F.R. (S)(S) 227.7202- 1 through 227.7202-4 (JUNE 1995), Intershop will provide PowerTier to U.S. Government End Users (i) only as a commercial item and (ii) with only those rights as are granted to all other End Users pursuant to the terms and conditions herein. In the event that Intershop receives a request from any agency of the U.S. Government to provide the Software and documentation thereto with rights beyond those set forth above, Intershop will notify PSI of the scope of rights requested and the agency making such request, and PSI may, in its sole discretion, accept or reject such request. 16.7 Severability. If any provision of this Agreement is found to be invalid, unlawful or unenforceable by a court of competent jurisdiction, such invalid term shall be severed from the remaining portion of this Agreement which will continue to be valid and enforceable to the fullest extent permitted by law. 16.8 Force Majeure. Except for payment obligations, nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the nonperforming party. 16.9 Entire Agreement. This Agreement including the Exhibits attached, the Cover Page and, if applicable, the Addenda set forth the entire agreement and understanding 11
of the parties relating to the subject matter of this Agreement and merge all prior discussions between them. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the party to be charged. Additional or inconsistent terms of any purchase order are expressly excluded and are hereby rejected. 12
Persistence Software License, Services, and Support Agreement CONFIDENTIAL EXHIBIT A END USER MINIMUM TERMS AND CONDITIONS END USER LICENSE AGREEMENT This End User License Agreement ("Agreement") is made as of the date the sealed media package containing this Agreement is opened (the "Effective Date") by and between Persistence Software, Inc., with principal offices at 1720 S. Amphlett Blvd., Suite 300, San Mateo, California, 94402 ("PSI") and the corporation or individual opening the sealed media package ("Licensee"). BY OPENING THE SEALED MEDIA PACKAGE, LICENSEE IS AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT OR OTHER AGREEMENT SPECIFICALLY SIGNED BY LICENSEE AND AGREED TO IN WRITING BY PSI. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSEE SHOULD RETURN THE UNOPENED MEDIA PACKAGE AND THE ACCOMPANYING ITEMS FOR A FULL REFUND. 1. Grant of License. The Persistence PowerTier software contained in the sealed media package comprises the PowerTier Developer Toolkit (incorporating the PowerTier Builder, DOCK and Link products), PowerTier server and ProActive Agents (collectively the "Software"). The PowerTier Developer Toolkit is licensed for the number Of developers specified on the invoice and/or license certificate issued by PSI. Any individual who interfaces with the PowerTier Development Server, who uses the PowerTier Builder, DOCK or Link products, who generates, modifies the files, or debugs the objects generated by the PowerTier Builder is considered a developer for licensing purposes. The PowerTier Server and ProActive Agent software contained in the sealed media package is licensed for the development and production application server(s) specified on the invoice and/or license certificate issued by PSI. Each application server connected to the PowerTier Server is considered a PowerTier Server for licensing purposes. For applications which access multiple application servers, licenses must be purchased for all such servers. Each concurrent user of an application deployed using the PowerTier server(s) also needs a PowerTier user license. The total number of concurrent users licensed to use the PowerTier server(s) is specified on the invoice and/or license certificate issued by PSI. Licensee may make one (1) object code copy of the Software solely for back-up purposes. Licensee may not modify or translate the Software, merge any portion of the Software with any other program, transfer, lease, sublicense, rent or resell the Software, or remove any proprietary notices from the Software. Licensee shall not export or re-export, directly or indirectly, the Software and Documentation, or any part thereof, in a manner prohibited by the U.S. Export Administration Act or the regulations thereunder. 2. Limited Warranty and Disclaimer. PSI warrants that, for a period of thirty (30) days from the date of delivery, the Software will substantially achieve the functionality described in the associated documentation provided by PSI (the "Documentation"). PSI also warrants that the media on which the Software is furnished will be free from defects in materials and workmanship for a period of thirty (30) days from the date of delivery to Licensee. PSI's entire liability and Licensee's exclusive remedy under this warranty will be - at PSI's option - to replace the media, to correct the Software, or to refund the purchase price and terminate this Agreement. PSI does not warrant that the Software will meet Licensee's requirements or that the operation of the Software will be uninterrupted or error free. EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 2, PSI MAKES AND LICENSEE RECEIVES NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED. PSI SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. 1
EXHIBIT A END USER MINIMUM TERMS AND CONDITIONS Page 2 3. Limitation of Liability. IN NO EVENT WILL PSI BE HELD LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF DATA, LOST OPPORTUNITY OR LOST PROFITS. THIS LIMITATION WILL APPLY EVEN IF PSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. LICENSEE ACKNOWLEDGES THAT THE LICENSE FEE REFLECTS THIS ALLOCATION OF RISK. 4. Ownership and Rights. This license is not a sale. Title and copyrights to the Software and Documentation remain with PSI, and PSI reserves all rights not expressly granted to Licensee herein. This license may not be assigned or transferred without the prior written consent of PSI. Licensee acknowledges that the Software source code remains a confidential trade secret of PSI and therefore agrees not to attempt to decipher, reverse engineer or decompile the Software, or otherwise attempt to gain access to the source code for the Software. Licensee also agrees not to develop passwords or codes to enable use by unauthorized users. 5. Term and Termination. This Agreement will begin on the Effective Date and will remain in effect until terminated as set forth in this Section 5. This Agreement will automatically terminate in the event that Licensee breaches any of its terms. In particular, unauthorized copying, or use by more than the authorized number of users of the Software, will result in automatic termination of this Agreement. Licensee may also terminate the license at any time by providing written notice and certification that all copies of the Software and Documentation have been destroyed. On any termination, all use of the Software and Documentation must stop. 6. U.S. Government Restricted Rights. The Software and Documentation are considered to be "commercial computer software" and "commercial computer software documentation", respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Use, duplication or disclosure of the Software and/or Documentation by the U.S. Government is subject to the restrictions set forth in DFAR Section 227.7202 for military agencies, and FAR Section 12.212 for civilian agencies. PSI reserves all rights not expressly granted herein. The contractor/manufacturer is Persistence Software, Inc., 1720 S. Amphlett Blvd., Suite 300, San Mateo, California 94402. 7. Governing Law. This agreement will be governed by the laws of the State of California, without reference to conflict of laws principles. 8. General. This Agreement constitutes the entire agreement between Licensee and PSI and supersedes any prior agreement concerning the Software and Documentation. PSI is not bound by any provision of any purchase order, receipt, acceptance, confirmation, correspondence, or otherwise, unless PSI specifically agrees to the provision in writing. 2
EXHIBIT B PSI TRADEMARKS, TRADE NAMES AND LOGOS Persistence Software, Inc. U.S. Federal Taxpayer I.D. 94-3138935 Incorporated in California May 31, 1991 as Fulcrum Innovations Name change to Persistence Software, Inc. 1992 Tradenames: Persistence Software, Inc. Persistence Software, Ltd. Registered Trademarks, Service Marks, & Copyrights: Persistence Persistence Software, Inc. Trans App Live Object Cache Persistence Object Builder Persistence Object Server Pro Active Agents PowerTier Power Tier Powertier Server Acceleratier Appcelerator Logos A) "Power Your Performance" B) "Powered b[LOGO]werTier" As above, but with [LOGO]rsistence Powertier" wording rather [LOGO]ur Performance" C) "Persistence" [LOGO] REQUIRED USAGE: Further to clause 2.1.4 of the Agreement, VAR is required to display the "Powered by Persistence PowerTier" Logo on all packaging for the Application(s) and as part of the start-up routine when the Application(s) are executed, such logo to be no less than 3cm diameter wherever used. 3
EXHIBIT C Maintenance and Technical Support 1. SUPPORT 1.1 PSI Back-End Support. During the term of this Agreement, and for a period of one (1) year thereafter PSI shall provide to Intershop back-end support services, consistent with the support obligations described on Exhibit C-1 hereto (which Exhibit may be supplemented or replaced, from time to time, by mutual agreement), with respect to the Applications including, without limitation, identification of defective Software source and object code and providing corrections, workarounds and/or patches to correct defects or errors in such source or object code. 2.2 Technical Support of Intershop. During the term of this Agreement, and for a period of one (1) year thereafter, in addition to the back-end support services described above, PSI shall provide to Intershop the following technical support services: A. PSI shall appoint a technical contact to whom Intershop may address all technical questions relating to PSI technologies. Upon execution of this Agreement, the parties shall determine a mutually agreeable procedure by which Intershop shall direct its technical questions to the appropriate PSI technical contact. B. PSI shall promptly answer all technical questions asked by Intershop relative to the Software. 2.3 Training of Intershop. [To be determined.] 2.4 Upgrades, Updates, Ports, Error Corrections and Enhancements. PSI will include Intershop in its alpha and beta programs for any upgrades, updates or ports to additional platforms to the Software released during the term of this Agreement, and will provide Intershop with the production version of such upgrades, updates or ports simultaneously with its earliest release of such upgrades, updates or ports to other customers. PSI shall also provide Intershop during the term hereof with any error corrections, bug fixes and enhancements to the Software simultaneously with its earliest release of such error corrections, bug fixes or enhancements to other customers. Intershop may, but is not required to, incorporate any such upgrade, update, port, error correction, bug fix or enhancement in a Application or Applications. 4
Persistence Software License, Services, and Support Agreement CONFIDENTIAL Exhibit C - Continued [LOGO] PowerTier/EJB Product Commitments for Intershop Persistence undertakes to enhance its PowerTier/EJB product for Intershop as detailed below. Where it is stated that an enhancement will be "in the Orca release" this means that the enhancement will be delivered as part of the PowerTier/EJB version which is code-named "Orca", and which is scheduled to be available as a beta version on December 4/th /1998. Where it is stated that an enhancement will be "in the Stingray release" this means that the enhancement will be delivered as part of the PowerTier/EJB version which is code-named "Stingray", and which is scheduled to be available as a beta version at the end of January 1999, with additional beta releases at the end of February and the end of March 1999. The enhancements are classified under 2 headings:. Acceptance Criteria": these are the features that must be in the Stingray release in order for PowerTier/EJB to be accepted by Intershop, which in turn will enable Persistence to invoice Intershop for the second agreed prepayment. . "Required"' these are enhancements that Persistence must provide to Intershop, although it is acceptable for them to be made available after the Stingray release. ACCEPTANCE CRITERIA 1. Unicode Support A mechanism will be put into PowerTier/EJB that automatically translates Unicode in the Java application layer into UTF8-encoded data for storing in the database. This mechanism will be completely transparent to the developer. When: by end of February 1999. 2. Cache Clearing The problem whereby EJB Beans are not cleared from the PowerTier/EJB Server will be fixed by the end Of February 1999. When: by end of February 1999. 3. Optimistic Failure Handling A mechanism will be provided whereby PowerTier/EJB can enable an application to automatically recover optimistic lock failures so that the object(s),that caused an optimistic lock failure can be automatically refreshed from the database. 12
Persistence Software License, Services, and Support Agreement CONFIDENTIAL When: By the end of February 1999. 4. Solving Java Server Toolkit Integration Problem This has already been achieved. When: closed. 5. Controlling the Visibility of Beans over the Network Currently all EJB Beans register with RMI, which means they are all 'visible' to any user on the network. This is an unacceptable security exposure. Persistence will enhance PowerTier/EJB to: a) replace RMI registration with JNDI registration; and b) allow you to specify in the EJB Deployment Descriptor whether or not an EJB Bean is to register with JNI. Consequently, you will be able to completely control which beans are 'visible' over the network and which are 'hidden'. When: In the Stingray release. 6. Reflection-Based Generation for Session Beans Reflection-based-generation will enable Java Classes that you have already written to be automatically transformed into EJB Session Beans. When: In the Orca release. 7. Reflection-Based Generation for Entity Beans Reflection-based-generation will enable custom methods that you have written to be automatically incorporated into EJB Entity Beans along with the methods generated by the PowerTier/EJB toolset. When: In the Orca release. 8. EJB Lifecycle Hook Methods These will be provided in the Orca release. When: In the Orca release. 9. Support for Java Packages Packages will be supported in the PowerTier Server as part of the Orca release. When: In the Orca release 13
Persistence Software License, Services, and Support Agreement CONFIDENTIAL 10. "Lazy-Fetch" PowerTier/EJB will be enhanced to provide a "Lazy Fetch" mechanism, which provides is a cursor-like access for the results of find XXX()-methods. When: In the Stingray release 11. Additional 'Find' Mechanism A "multi-class fetch" mechanism will be provided that enables queries to include 'joins'. When: In the 'Stingray' release. 12. Oracle 8 Client Library Support This will be provided in the Orca release. When: In the Orca release. REQUIRED 13. Cache Synchronisation PowerTier will be enhanced to provide a mechanism that, in conjunction with a communications protocol, enables the same EJB Entity Beans contained in separate PowerTier Servers to be kept synchronised. When: In the Stingray release. 14. 2-phase commit across multiple databases from a single application server PowerTier/EJB will be enhanced to enable the co-ordination of 2-phase commits across multiple database from a single PowerTier/EJB application server. When: In the Stingray release. 15. Native Unicode Support In PowerTier native Unicode will be included as UCS2 in the Java/application Layer. This is a long term requirement. When: In a later release after Stingray. 14
Persistence Software License, Services, and Support Agreement CONFIDENTIAL EXHIBIT C-1 Support Obligations Persistence Technical Support Policies (Europe) Overview Persistence Technical Support enables you to make the most out of your software investment by providing timely, courteous and knowledgeable support. We have designed a Technical Support Centre to co-ordinate much of your day-to-day interaction with Persistence Software. These policies and procedures are the basis of our customer support commitment. They describe in detail our support services and the procedures for you to follow when using Technical Support. By defining clear guidelines, we aim to simplify communications, with the goal of resolving your product questions and problems as quickly as possible. This document also describes our policies for the duration of support for old releases and for building patches to supported releases. Persistence Technical Support Centre European customer technical support calls are handled by a local support centre based in London. This support centre liases directly with European customers and the Central Customer Support Centre based at our headquarters in North America. Contacting Technical Support You must have a valid maintenance contract in effect to use the Technical Support Centre. Please include your maintenance contract number when you contact the Technical Support Centre and indicate that you are based in Europe. You may contact our Technical Support Centre by phone, email or completing the form in the Tech Support area of the web site, using the following contact information:
Telephone: +44 171 588 4344 Email: email@example.com -----------------------www.persistence.com -------------------
Tracking System All Cases and errors are tracked through an automated problem resolution system. This is the central repository for all information about your technical contacts with us. Our on-line system allows us to: [_] Track all of our interactions with you [_] Track all of our efforts on your behalf as we resolve your issues [_] Keep detailed information on the problems you report and the questions you ask [_] Search for problem resolutions that have been documented in our Frequently Asked Questions (FAQ) database. 5
Persistence Software License, Services, and Support Agreement Confidential [_] Maintain a customer profile on your primary and alternate technical contacts [_] Communicate case status and escalate the most important cases to senior Persistence engineers. Other Sources of Information The Technical Support Centre is also a valuable source of information. The Support Centre will provide information on Persistence products including: [_] Frequently asked questions [_] Knowledge Base [_] Online User/Reference Manual [_] Known bugs [_] Release notes Support Centre Procedures Persistence Technical Support handles your requests using a prioritisation process for resolving the most critical problems quickly. A Technical Support Engineer opens your case, verifies your support contract, and records the preliminary information. The Engineer will then give you a Case ID that you can use for your future reference. All information related to the case is tracked using this Case ID. Through experience or reference material the Engineer may resolve your case during the initial contact. If this is not possible, the Engineer may ask you to send further information, and may involve other engineers to consult on the case. 3.1 Customer Contacts To maintain consistent communications with you, we allow one primary and two alternate technical contacts per development project. You assign these individuals and are the only ones authorised to contact the Persistence Support Centre. To change your contacts, please ask technical support for Contact Change Request Form (CCRF). If an individual who is not on the contact list calls, we will ask that they first call one of the assigned contacts, who will in turn contact us. In the case of an evaluation, we allow one client contact per evaluation. This is the person named in the Evaluation Request Form (ERF). 3.2 Required Information To speed handling of technical support issues, it is more efficient if you prepare some information beforehand. The checklist below presents information that is required before any problem resolution can begin. [_] Company name and contact information [_] Persistence Product [_] Persistence Product version number [_] Hardware platform and operating system [_] Database vendor and version number [_] Compiler vendor and version number [_] ORB vendor and version number (if appropriate)
[_] Statement of the problem or question. This may also include code-fragments 6
Persistence Software License, Services, and Support Agreement CONFIDENTIAL 3.3 Opening a Call All customer queries are initially recorded in our tracking system as a Call. A Call does not have a priority associated with it. Technical Support Centre's objective is to close all open calls as soon as possible. A call will be closed after answering the customer's questions/queries or by escalating Calls to Problems or Enhancement requests (see section 3.4 Opening a Problem). 3.4 Opening a Problem A Call will be escalated to Problem status after the Technical Support Centre has verified the problem with a supported Persistence product. The Technical Support Centre must have your minimal test case (see section 3.5 Minimal Test Case Information) to do this. Once a Problem is opened, the Technical Support Centre will assign a priority based on the prioritisation criteria documented in section 3.6 Case Priority Levels. 3.5 Minimal Test Case Information In order for work to begin on your problem, Persistence must be able to reproduce the condition in our own environment. In some situations, it may be possible to reproduce your problem based on your description alone. In other cases, we will require a minimal test case from you before we can begin work. The minimal test case represents the minimum application required to reproduce the problem:
--------------Object Model ----------------------------Test case code ----------------------------Makefile ----------------------------Modified Generated Code ----------------------------Client ---------------
Your persist file with a maximum of 5 classes
main.cpp program with no more than 50 lines which reproduces your problem
A simple Makefile to build your test case
If your problem involves methods added to Persistence generated code, include the relevant modified generated files
If your problem involves a three-tier architecture, be sure to include simplified client files
Figure 1 - Minimal test case Until we receive the necessary information to duplicate the reported problem in our Technical Support Centre, work cannot begin on problem resolution. In addition, cases which contain more than five classes or which involve significant amounts of code not related to the problem may be placed at a lower priority for resolution. 7
Persistence Software License, Services, and Support Agreement CONFIDENTIAL Once a minimal test case has been received by the Technical Support Centre and reproduced by the Technical Support Engineer, the Case ID will be assigned a priority (i.e. P1, P2, P3, and P4), which will determine when resources are assigned to fix the problem. 3.6 Case Priority Levels Persistence prioritises your case based on its severity. Cases with severity levels of P1, P2, or P3 are automatically escalated to more senior engineering resources if they are not resolved within the specified time period (See Table 1 - Problem resolution goals). In order for cases to be prioritised, they must be submitted along with a minimal test case. The following diagram illustrates the decision tree for determining case priorities: --Yes-- P1 Priority
Stop Work on production system?
--No-----------------Customer problem with -minimal test case -----------------
--Yes-- P2 Priority
Stops work on development system?
--No-- P3 Priority
Figure 2 - Priority levels 3.6.1 ----Case Priority P1 ----------------
When you have an emergency in a production system that stops work, the Technical Support Centre prioritises your case as P1. 'Stops work' means that production work has halted and cannot continue. This priority allows us to immediately direct your case to the Engineer with the correct expertise. When the appropriate Engineer is not immediately available, our goal is to have contacted you to begin problem resolution within one hour after we have received a minimal test case. P1 cases without resolution or work-around within one day of receiving a test case are immediately escalated to a Senior Engineer and management. 3.6.2 Case Priority P2 When you have a condition in a development system that stops work, the Technical Support Centre prioritises your case as P2. 'Stops work' means that further development work has halted and cannot continue. This priority allows us to immediately direct your case to the Engineer with the correct expertise. When the appropriate Engineer is not immediately available, our goal is to have contacted you to begin problem resolution within two hours after we have received a minimal test case. 8
Persistence Software License, Services, and Support Agreement CONFIDENTIAL P2 cases without resolution or work-around within two days of receiving a test case are escalated to a Senior Engineer and management. Note: During P1 and P2 problem resolution there will be ongoing communication providing status and information exchange to facilitate resolution of the problem. 3.6.3 Case Priority P3 When you have a condition in a development or production system that does not prohibit progress, for which there is no work-around, the Technical Support Centre, prioritises your case as P3. A 'work-around' is a known solution to resolve the condition. This priority--allows us to devote resources to identifying a work-around. Our goal is to have contacted you to begin problem resolution within four hours after we have received a minimal test case. P3 cases without resolution or work-around within 1 week of receiving a test case are escalated to a Senior Engineer and management. 3.6.4 Case Priority P4 When you encounter a known condition in a development or production system for which there is a robust workaround, the Technical Support Centre prioritises your case as P4. Our goal is to have contacted you regarding this issue within one day. This condition will be addressed in a scheduled release of Persistence. The following table summarises the response goals of the Technical Support Centre. Note that in all cases, a minimal test case is required.
------------------------------------------------------------------------------Case priority Initial Respond with Work-around or contact within commitment within ------------------------------------------------------------------------------P1 - stops production 1 hour 2 working days P2 - stops development P3 - no work-around P4 - work-around exists 2 hours 4 hours 1 day 3 working days 1 week N/A
Table 1 - Problem resolution goals 3.7 Patches to Resolve Problems Once the Technical Support Centre has verified a problem your Case ID will be given a priority. When requested, Persistence will endeavour to provide patches to P1, P2, and P3 priority problems on supported versions of Persistence products (see section 0, 'Duration of Support for Releases'). In some cases, patches may not be possible and you will be required to upgrade to a more recent version of the product. For P1 and P2 problems Persistence will create, build, and test a patch as quickly as possible, usually within 3 days of problem verification. P3 problems will be resolved in a subsequent product release. P4 problems may be resolved in conjunction with other product enhancements. The table below summarises the goals for the delivering patches. The time periods begin when the Technical Support Centre has verified the problem: Case priority Goal for delivering patch 9
Persistence Software License, Services, and Support Agreement CONFIDENTIAL -------------------------------------------------------------------------------P1 - stops production P2 - stops development P3 - no work-around P4 - work-around exists within 3 working days within 4 working days in subsequent release as part of other enhancement
Table 2 - Patch delivery goals 3.8 Escalation to a Manager Whenever the Persistence Technical Support Centre is not meeting your needs or expectations, you may escalate the case or any other issue to the Technical Support Centre Manager. You may also contact the Technical Support Centre Manager if the case becomes too complex or you become concerned that our Engineers are not able to resolve the case in a suitable manner. 3.9 Requesting an Enhancement Each enhancement request will be assigned a Case ID. This will allow us to track your request and to inform you when the enhancement is available. Duration of Support for Releases The Persistence Technical Support Centre will provide responses (as described above) for supported releases. The duration of support will vary depending on the type of release. Persistence defines three types of releases: General Availability (GA) A GA release will be sent to all customers who have current support contracts. A GA release will be supported for the longer of: [_] 18 months [_] One year after the next GA release. Beta Beta releases will be sent to customers who have been selected to participate in the beta program. Beta releases will not be supported beyond the shipment of the next GA, or Beta release. Therefore, Persistence recommends that Beta releases be not used for shipment of production systems. Alpha Alpha releases are sent in rare situations to satisfy urgent customer needs. Alpha releases will not be supported beyond the shipment of the next GA, Beta, or Alpha release. Therefore, Persistence recommends that Alpha releases be not used for shipment of production systems. Support for New Versions of Operating Systems, Databases, Compilers, ORBs, and Class Libraries Persistence intends to provide one or two GA releases per year. Persistence attempts to support any configuration that is commercially available (i.e. not in Beta) 60 days prior to the scheduled GA 10
Persistence Software License, Services, and Support Agreement CONFIDENTIAL release of Persistence Products. Persistence will support the important new features of the new operating system, database, compiler, ORB, and/or class library as they may apply to various Persistence products. Support for Old Versions of Operating Systems, Databases, Compilers, ORBs, and Class Libraries Persistence products interact with and depend on operating systems, databases, compilers, ORBs, and/or class libraries. As new versions of the products are available, Persistence will discontinue support for old version of these products. This section describes the policy for terminating our support of a particular release of an operating system, database, compiler, ORB and/or class library. Operating Systems New releases of Persistence products will continue to support an old version of an operating system for one year after a GA release of Persistence product is available that supports the new version of the operating system. Databases New releases of Persistence products will continue to support an old version of a database for one year after a GA release of Persistence product is available that supports the new version of the database. Compilers New releases of Persistence products will continue to support an old version of a compiler for six months after a GA release of Persistence product is available that supports the new version of the compiler. ORBs New releases of Persistence products will continue to support an old version of a ORB for six months after a GA release of Persistence product is available that supports the new version of the ORB. Class Libraries New releases of Persistence products will continue to support an old version of a class library for six months after a GA release of Persistence product is available that supports the new version of the class library. 14
Persistence Software License, Services, and Support Agreement Confidential Exhibit D Terms to be agreed upon subsequent to signing of Agreement 15
****CONFIDENTIAL TREATMENT REQUESTED [LOGO] Persistence Software License, Services, and Support Agreement This Customer Agreement and Attached License Addendum (the "Agreement") is entered into by and between the parties set forth immediately below as of December 31, 1998 (the "Effective Date") and shall remain in effect until terminated as set forth in this Agreement:
Persistence Software, Inc., 1720 South Amphlett Boulevard, Third Floor San Mateo, CA 94402 ("PSI") Intershop Communications GmbH and its Affiliates Leutragraben 2-4 07743 Jena Germany ("Intershop")
"Intershop" as defined in this agreement is a(n): VAR [X] End-User __ Application developed with Software: "Intershop 4" or "Intershop 2000" (code- named "Beehive"/1)/
--------------------------------------------------------------------------------------------------------Item Description Unit Price Net Pri ------------------------------------------------------------------------------------------------------------------------------------1. 12 x PowerTier Builder for EJB License $**** $**** (to be invoiced immediately) 2. 12 x PowerTier Link for Rational Rose License (to be invoiced immediately) 2 x PowerTier Server Development Runtime License (to be invoiced immediately) 12 months Maintenance Services on Items 1-3 @ ****% of license fee (to be invoiced immediately) Pre-payment for additional PowerTier Licenses, Maintenance Services and/or Royalties (as defined below) (to be invoiced immediately) 33 days of professional services (see Note 1 on this Cover Sheet for further details) (to be invoiced immediately) Pre-payment for additional PowerTier Licenses, Maintenance Services and/or Royalties (to be invoiced upon completion of certain tasks as specified in Note 2 on this Cover Sheet). $**** $**** $****
Royalties (as defined in Note 3 of this Cover Sheet) ****% *** (to be invoiced monthly) ---------------------------------------------------------------------------------------------------------
/1/ Beehive is a new architecture meets the needs of the both the marketplace (i.e. the new digital intermediary), and future models of electronic commerce by providing an object-oriented, extensible framework on which this application and future applications can be built and deployed. Not only does the Beehive architecture support new and evolving models of eCommerce, but it also supports existing models such as the Mall and Single Supplier/Store. A standardized framework provides consistent practices regarding customization, which enable quicker implementation and customization for Intershop's customers and Intershop's professional services group. Beehive and products that run on the Beehive platform and applications that incorporate the PowerTier runtime are expected to be Intershop's a primary revenue stream in 1999 and Intershop's principle revenue stream in 2000
****CONFIDENTIAL TREATMENT REQUESTED
--------------------------------------------------------------------------------------------------------9. Maintenance Services for Software sold subject to ****% ****% Royalty payments (to be invoiced at the same time as Royalties) 10. Option to reduce royalties by ****% (see Note 4 of this Cover Sheet) Charge for each copy of "PowerTier Developer Pack" (defined as 1 x PowerTier Object Builder + 1 x PowerTier Link for Rose) that is sold as part of an Intershop product. (see Note 5 of this Cover Sheet) Use of GUT (see Note 6 of this Cover Sheet) $**** $****
The parties acknowledge that license, service, and, support, are subject to the terms of the Agreement attached hereto and agree to the terms contained therein. NOTE 1: Each visit to Intershop's offices in Jena will involve maximum 1 day travelling time which shall be charged at the daily rate. All actual, pre- approved and reasonable expenses incurred in carrying out any professional services for Intershop will be re-charged to Intershop at cost. This will include, but is not limited to, all travel costs, hotel costs, car hire, and $60 per day for incidental expenses such as meals, telephone etc. NOTE 2: Attached to this Agreement as Exhibit C is a document describing the enhancements to PowerTier that Persistence will develop and deliver either before or as part of the release of PowerTier/EJB currently known as "Stingray". Once these enhancements have been delivered, Intershop will be invoiced for Item 7 above. NOTE 3: Royalties at the rate specified in Item 8 above shall be charged on all Intershop net revenues (net of any sales tax) generated by products containing the PowerTier Server Production Runtime, including net revenues received by Intershop resulting products developed and distributed by third parties and which contain the PowerTier Server Production Runtime. Royalties at the rate specified in Item 8 above shall also be charged on all Intershop revenues (net of any sales tax) generated by products containing the PowerTier Object Builder subject to the limitations defined in Note 5 of this Cover Sheet. For purposes of this Note 3, "net revenue" means gross revenues, less any applicable sales, use, or withholding taxes, or any applicable ad valorem taxes. NOTE 4: This option specified as Item 10 on the Cover Page of this Agreement can be exercised by Intershop at any time. The ****% reduction will come into effect **** months after Intershop pays to Persistence the sum specified in item 8 above $**** of this payment will be counted as a prepayment against future PowerTier Licenses, Maintenance Services and/or Royalties. NOTE 5: Intershop is entitled to resell only 2 copies of the PowerTier Developer Pack to each End User subject to the Royalty amount specified in Item 8 above. Any additional sales of PowerTier Developer Pack shall be subject to the charge specified in Item 11 above. In any event, all PowerTier Developer Packs resold to End Users shall require Intershop to contractually limit use of the PowerTier Developer Pack to work related to the End-User's use of Beehive. NOTE 6: Intershop agrees that any use of GUT will be entirely at their own risk and will be unsupported. Intershop will be responsible for the maintenance of any code generated by GUT, and support for any PowerTier generated code that contains GUT-generated code will only be provided if the problem can be reproduced with the GUT-generated code removed. Intershop also agrees that GUT and any documentation relating to GUT is entirely confidential and therefore specifically and especially covered by clauses 2.1.3, 3 and 10. Under no circumstances may GUT be used by anyone other than Intershop employees, and under no circumstances may GUT be used other than at Intershop premises. PSI will give good faith
consideration to allowing Intershop to sublicense GUT to Intershop's customers.
AGREED AND ACCEPTED:
Persistence Software, Inc. By: /s/ Martin McCure ----------------------Name: Martin McCure --------------------Title: CONTROLLER --------------------Date: 12/31/98 --------------------Intershop Communications Gmbh By: /s/ Stephan Schambach --------------------------Name: STEPHAN SCHAMBACH ------------------------
EXHIBIT 10.9 ASSET PURCHASE AGREEMENT dated as of February 26, 1999 by and among INTERSHOP COMMUNICATIONS, INC., A Delaware corporation FOUNTAINHEAD MANAGEMENT, INC., A New York corporation and AARON KAUFMAN, an individual
TABLE OF CONTENTS
Page 1 1 1 1 2 3 3 3 3 3
SECTION 1. 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 SECTION 2.
Purchase And Sale Of Assets................................... Sale of Assets................................................ Excluded Assets; No Assumption of Liabilities................. Initial Purchase Price and Payment............................ Earn-Out Payment.............................................. Time and Place of Closing..................................... Transfer of the Assets........................................ Assignment of the Leases...................................... Possession; Delivery of Records............................... Further Assurances............................................ Representations And Warranties Of Fountainhead And The Selling Stockholder Organization and Qualification............................... Authority.................................................... Subsidiaries................................................. Financial Statements......................................... Title to Properties; Liens; Condition of Properties.......... Taxes........................................................ Absence of Undisclosed Liabilities........................... Absence of Certain Changes................................... Patents, Trade Names and Trademarks.......................... Contracts.................................................... Litigation................................................... Compliance with Laws......................................... Warranty or Other Claims..................................... Disclosure of Material Information........................... Labor Relations; Employees................................... Creditors.................................................... Representations And Warranties Of Intershop.................. Organization and Qualification............................... Authority....................................................
3 4 4 4 4 5 5 5 5 6 6 7 7 7 7 7 8 8 8 8
2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 2.9 2.10 2.11 2.12 2.13 2.14 2.15 2.16 SECTION 3. 3.1 3.2
TABLE OF CONTENTS (continued)
Page 9 9 9 9 10 10 10 11 11 11 11 11 11 12 13 13 13 13 13 14 14 15 15 15 15 15 15
SECTION 4. 4.1 4.2 4.3 4.4 SECTION 5. 5.1 5.2 SECTION 6. 6.1 6.2 SECTION 7. 7.1 7.2 7.3 SECTION 8. SECTION 9. 9.1 9.2 9.3 9.4 9.5 9.6 9.7 9.8 9.9 9.10
Covenants.................................................... Covenants of Fountainhead and the Selling Stockholder........ Selling Stockholder's Covenant Not to Compete................ Affirmative Covenants of INTERSHOP........................... Mutual Covenant.............................................. Conditions................................................... Conditions to the Obligations of INTERSHOP................... Conditions to Obligations of Fountainhead.................... Rights And Obligations Subsequent To Closing................. Survival of Warranties....................................... Sales Taxes.................................................. Indemnification.............................................. Indemnification by Fountainhead and the Selling Stockholder.. Indemnification by INTERSHOP................................. Notice; Defense of Claims.................................... Confidentiality.............................................. Miscellaneous................................................ Fees and Expenses............................................ Notices...................................................... Entire Agreement............................................. Governing Law; Venue......................................... Broker's Fees................................................ Assignability................................................ Publicity and Disclosures.................................... Waivers; Severability........................................ Headings..................................................... Counterparts.................................................
SCHEDULES AND EXHIBITS
Schedule I: Schedule II: Exhibit A: Exhibit B: Exhibit C: Exhibit D: Exhibit E: Acquired Assets Excluded Assets Leases Disclosure Schedule Landlord's Estoppel Certificate Assignment of Leases Employment Offer Letter: Aaron Kaufman iii
****CONFIDENTIAL TREATMENT REQUESTED
ASSET PURCHASE AGREEMENT This Asset Purchase Agreement (the "Agreement") is made effective as of February 26, 1999, by and among INTERSHOP Communications, Inc., a Delaware corporation ("INTERSHOP"), Fountainhead Management, Inc., a New York corporation ("Fountainhead"), and Aaron Kaufman, the sole stockholder of Fountainhead (the "Selling Stockholder"). Whereas, INTERSHOP desires to purchase and Fountainhead desires to sell to INTERSHOP certain properties and assets of Fountainhead for the consideration specified herein without the assumption by INTERSHOP of any liabilities or obligations of Fountainhead other than as specifically set forth below, all on the terms and subject to the conditions hereof. Now, Therefore, in consideration of the mutual agreements herein contained, the parties hereto agree as follows: SECTION 1. Purchase and Sale of Assets. 1.1 Sale of Assets. Subject to the provisions of this Agreement, Fountainhead hereby agrees to sell and INTERSHOP hereby agrees to purchase all of the properties, assets, rights and business of Fountainhead (other than cash) including, without limitation, Fountainhead's accounts receivable, notes receivable, inventories, real estate, properties, plants, equipment, leases, proprietary rights on intellectual property rights, patents, trademarks, trade names, trade secrets, service marks, routes, customer lists, covenants not to compete with Fountainhead and all computer hardware and software associated with Fountainhead (the "Assets"). Certain of the Assets are listed on Schedule I attached hereto. INTERSHOP also agrees to assume the lease of real property between Fountainhead and BDG 115 Broadhollow, L.P. for the offices located at 115 Broadhollow Road, Melville, New York (the "Office"), a copy of which is attached hereto as Exhibit A, and two equipment leases between Fountainhead and Norwest Financial Leasing, Inc. and Eastern Funding LLC (the "Leases"). Fountainhead and the Selling Stockholder hereby covenant and agree to use their best reasonable efforts obtain the consent of the landlord and/or any other required party to enable Fountainhead to assign or transfer the Leases to INTERSHOP. 1.2 Excluded Assets; No Assumption of Liabilities. INTERSHOP shall not purchase the excluded asset set forth on Schedule II attached hereto. INTERSHOP shall not assume any liabilities of Fountainhead, including without limitation the principal and interest owed by Fountainhead to the Werner and Linda Schmitt Trust Account, Werner Schmitt and Dru Doshi under three (3) separately executed promissory notes (the "Notes"), whether accrued or contingent, except for (i) obligations arising under the Leases, and (ii) any amounts remaining unpaid on general business accounts payable and obligations included in deferred revenue. Fountainhead acknowledges that it and Robert Kaufman remain solely liable for the principal and interest owed under the Notes. 1.3 Initial Purchase Price and Payment. In consideration of the sale by Fountainhead to INTERSHOP of the Assets, at the Closing, INTERSHOP shall pay to Fountainhead the aggregate amount of **** to be paid in **** 1.
****CONFIDENTIAL TREATMENT REQUESTED installments as follows (the payments after April 1, 1999 to be reflected in the promissory note attached hereto as Exhibit F): (i) ****, (ii) ****, (iii) ****, (iv) ****. 1.4 Earn-Out Payment. (a) During ****, up to an additional **** will be payable by INTERSHOP to the Selling Stockholder (the "Earn-Out Payment"), contingent upon the Gross Revenues and Net Income/Loss of the Intershop Professional Services U.S. (East) (that professional services entity located in Melville, New York) recognized in fiscal year 1999 and calculated in accordance with the following procedures: (i) The Earn-Out Payment will be calculated by multiplying ****% by the 1999 Gross Revenues of the Intershop Professional Services U.S. (East), provided however, that (a) such Earn-Out Payment be no more than **** and (ii) the Earn-Out Payment will be Zero Dollars ($0) if the Intershop Professional Services U.S. (East) runs a Net Loss for fiscal year 1999; (ii) Not later than March 1, 2000, INTERSHOP shall prepare and deliver to the Selling Stockholder a statement certified by the Chief Financial Officer of INTERSHOP, setting forth the amount of Gross Revenues and the Net Income/Loss of the Intershop Professional Services U.S. (East) for the fiscal year ending December 31, 1999, the Earn-Out Payment amount, if any, and a reasonably detailed description of the relevant calculations (the "Earn-Out Statement). "Gross Revenue" and "Net Income/Loss" calculations will be for recognized revenue for services (excluding software license, maintenance, and technical support fees) and performed in accordance with generally accepted accounting principles; and (iii) If the Selling Stockholder has any objections to the Earn-Out Statement, he shall deliver a reasonably detailed statement describing his objections to INTERSHOP within thirty (30) days after receiving the Earn-Out Statement. The Selling Stockholder and INTERSHOP shall use reasonable efforts to resolve any objections to the calculations of Gross Revenues and Net Income/Loss. If the parties do not obtain a final resolution within thirty (30) days after INTERSHOP's receipt of a statement of objections, the Selling Stockholder and INTERSHOP shall, within five (5) business days, select an accounting firm mutually acceptable to them to resolve any remaining objections. If the Selling Stockholder and INTERSHOP are unable to agree on a choice of an accounting firm, such accounting firm will be selected by lot from a list of the New York offices of the nationally recognized 2.
accounting firms (at the time) after excluding the regular outside accounting firm of INTERSHOP. Such accounting firm shall render its determination within thirty (30) days of being engaged. The determination of any accounting firm so selected will be set forth in writing and will be conclusive and binding upon the parties. If such accounting firm determines that the Selling Stockholder is entitled to an additional portion of the Earn-Out Payment from INTERSHOP, INTERSHOP shall, within ten (10) days, pay such amount with interest from March 31, 2000 to the date such amount is actually paid at the simple rate of ten percent (10%) per annum. If such accounting firm determines that INTERSHOP overpaid the Selling Stockholder, the Selling Stockholder shall, within ten (10) days, remit such overpayment to INTERSHOP, with interest thereon at the simple rate of ten percent (10%) per annum, from the date previously paid by INTERSHOP, to the date the overpayment is actually repaid. The fees and expenses of the accounting firm shall be borne by the Selling Stockholder if there is no change in the calculation or the Selling Stockholder has been overpaid and by INTERSHOP if the Selling Stockholder has been underpaid. (b) For purposes of Section 1.4(a), the Intershop Professional Services U.S. (East) is defined as the existing market and industry segments to which Fountainhead provides professional services, as of the Closing Date. 1.5 Time and Place of Closing. The closing of the purchase and sale provided for in this Agreement (the "Closing") shall be held at the offices of Cooley Godward LLP, Five Palo Alto Square, 3000 El Camino Real, Palo Alto, California, at 10:00 a.m. on February 26, 1999 immediately following the execution of this Agreement (the "Closing Date"). 1.6 Transfer of the Assets. At the Closing, Fountainhead shall deliver to INTERSHOP good and sufficient instruments of transfer transferring to INTERSHOP all right, title and interest in and to all of the Assets. Such instruments of transfer (i) shall be in the form and shall contain the warranties, covenants and other provisions (not inconsistent with the provisions hereof) that are usual and customary for transferring the type of property involved under the laws of the jurisdictions applicable to such transfers, (ii) shall be in form and substance satisfactory to counsel for INTERSHOP, and (iii) shall effectively vest in INTERSHOP, good title to the Assets free and clear of all liens, restrictions and encumbrances. 1.7 Assignment of the Leases. At the Closing, Fountainhead shall use its best efforts to deliver or cause to be delivered to INTERSHOP an effective assignment of the Leases, with such assignment thereof and consents to assignments as are necessary to assure INTERSHOP of the full benefit of the same. To the extent that the assignment of the Leases shall require the consent of any other parties thereto, this Agreement shall not constitute an assignment thereof; provided however, that before the Closing, Fountainhead shall have obtained any necessary consents or waivers to assure INTERSHOP of the benefits of the Leases. 1.8 Possession; Delivery of Records. At the Closing, Fountainhead shall take all reasonable steps to put INTERSHOP in actual possession and operating control of the Assets and the Office, and Fountainhead shall have vacated the Office. After the Closing, Fountainhead shall afford to INTERSHOP and its accountants and attorneys reasonable access to the books and records of Fountainhead and shall permit INTERSHOP to make extracts and copies therefrom 3.
for the purpose of preparing such tax returns of INTERSHOP as may be required after the Closing and for other proper purposes reasonably requested by INTERSHOP. 1.9 Further Assurances. After the Closing, Fountainhead shall from time to time upon the request of INTERSHOP, execute and deliver further instruments of transfer and assignment (in addition to those delivered under this Section 1) and take such other actions as INTERSHOP may reasonably require to transfer, assign to and/or vest in INTERSHOP any of the Assets and the Leases. Nothing herein shall be deemed a waiver by INTERSHOP of its right to receive at the Closing an effective transfer of the Assets and assignment of the Leases. SECTION 2. Representations and Warranties of Fountainhead and the Selling Stockholder Except as set forth on the Disclosure Schedule attached hereto as Exhibit B, Fountainhead and the Selling Stockholder jointly and severally represent and warrant to INTERSHOP as follows: 2.1 Organization and Qualification. Fountainhead is a corporation duly organized, validly existing and in good standing under the laws of the State of New York and has full corporate power and authority to own or lease its properties as such properties are owned or leased and to conduct its business as such business is currently being conducted. Fountainhead is qualified to do business as a foreign corporation in each jurisdiction in which the ownership of its property or the conduct of its business makes such qualification necessary, except where the failure to so qualify would not have a material adverse effect on the business or the financial condition of Fountainhead. 2.2 Authority. Each of Fountainhead and the Selling Stockholder has the full power and authority to enter into this Agreement and the other documents and agreements contemplated hereby and to carry out the transactions contemplated hereby and thereby. The execution, delivery and performance by Fountainhead and the Selling Stockholder of this Agreement and the other documents and agreements contemplated hereby have been duly and validly authorized and approved by all necessary action on the part of Fountainhead, and each of this Agreement and the other documents and agreements contemplated hereby is a legal, valid and binding obligation of Fountainhead and the Selling Stockholder, enforceable against Fountainhead and the Selling Stockholder in accordance with its terms, subject to laws of general application from time to time in effect affecting creditors' rights and to the exercise of judicial discretion in accordance with general equitable principles. There are no requirements applicable to Fountainhead to make any filing with, or give any notice to, or to obtain any permit, authorization, consent or approval of, any governmental or regulatory authority or any other person as a material condition to the lawful consummation by Fountainhead of the transactions contemplated by this Agreement, except as set forth on the Disclosure Schedule. Neither the execution and delivery of this Agreement by Fountainhead nor the consummation by Fountainhead of the transactions contemplated by this Agreement shall (a) conflict with or result in any material breach of any provision of the Certificate of Incorporation or Bylaws of Fountainhead, (b) result in a default (or give rise to any right of termination, cancellation or acceleration) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, license agreement, lease or any contract, instrument or obligation to which 4.
Fountainhead is a party or by which Fountainhead, or any of the Assets or the Leases may be bound, (c) violate in any material respects any statute, rule, regulation, order, writ, injunction or decree applicable to Fountainhead, any of the Assets or the Leases, or (d) result in the creation of any (individually or in the aggregate) liens, charges or encumbrances on any of the Assets or the Leases. 2.3 Subsidiaries. Fountainhead does not own, directly or indirectly, any securities issued by any business organization or governmental authority. 2.4 Financial Statements. Fountainhead has delivered to INTERSHOP unaudited balance sheets and statements of operations of Fountainhead as of and for the year ended December 31, 1998 and for the two months ended February 28, 1999. Fountainhead's balance sheet as of February 28, 1999 is hereinafter referred to as the "Base Balance Sheet." All of the aforementioned financial statements have been prepared in accordance with generally accepted accounting principles established by the American Institute of Certified Public Accountants applied consistently during the periods covered thereby and to the best of Fountainhead's and the Selling Stockholder's knowledge, present fairly the financial condition of Fountainhead at the dates of such statements and the results of its operations for the periods covered thereby. 2.5 Title to Properties; Liens; Condition of Properties. (a) Fountainhead owns no real property and leases no real property other than the Office as of the date hereof, and Fountainhead is not a party to any leases for personal property [other than the Leases]. Fountainhead has good and marketable title to the Assets, and the Leases are valid and subsisting. No default by Fountainhead exists under the Leases, and none of the Assets or the Leases are subject to any mortgage, pledge, lien, conditional sale agreement, security interest, encumbrance or other charge, or license, except as reflected in the Base Balance Sheet, and except for statutory liens for real property taxes not yet delinquent or payable. (b) All of the Assets are in good working order and all the Assets that are machinery or equipment have been properly maintained and conform with all applicable ordinances, regulations and zoning or other laws. 2.6 Taxes. Fountainhead has filed all federal, state and local income, excise, franchise, real estate and sales and use tax returns required to be filed by it and has paid all taxes owing by it except taxes, which have not yet accrued or otherwise become due, for which adequate provision has been made in the pertinent financial statements referred to in Section 2.4 above. The provisions for taxes reflected in the Base Balance Sheet are adequate to cover any and all tax liabilities of Fountainhead in respect of its business, properties and operations during the periods covered by such financial statements. No extensions of time for the assessment of deficiencies for any year are in effect. Neither the Internal Revenue Service nor any other taxing authority is now asserting or threatening to assert against Fountainhead any deficiency or claim for additional taxes, interest thereon or penalties in connection therewith. 2.7 Absence of Undisclosed Liabilities. As of the date of the Base Balance Sheet, Fountainhead had no liabilities of any nature, whether accrued, absolute, contingent or otherwise 5.
(including, without limitation, liabilities as guarantor or otherwise with respect to obligations of others, or liabilities for taxes due or then accrued or to become due), except for the Leases and those certain liabilities reflected in the Base Balance Sheet. As of the date hereof, Fountainhead has no liabilities of any nature, whether accrued, contingent or otherwise (including, without limitation, liabilities as guarantor or otherwise with respect to obligations of others), except for the Leases and those certain liabilities reflected on the Base Balance Sheet. 2.8 Absence of Certain Changes. Except as disclosed on the Disclosure Schedule and as otherwise provided in this Agreement, from the date of the Base Balance Sheet to the date hereof, there has not been: (a) any change in the financial condition, properties, Assets, Leases, liabilities, or business operations of Fountainhead, which change, by itself or in conjunction with all other such changes, whether or not arising in the ordinary course of business, has been or is likely to be materially adverse with respect to the Assets, the Office or the Leases; (b) any contingent liabilities incurred by Fountainhead (as guarantor or otherwise) with respect to the obligations of others that could have a material adverse effect on the Assets, the Office or the Leases; (c) any mortgage, encumbrance or lien placed on any of the Assets or the Leases which remains in existence on the date hereof; (d) any obligation or liability incurred by Fountainhead (not included in the Base Balance Sheet) in excess of $1,000 individually provided that the aggregate of such undisclosed individual items does not exceed $15,000; (e) any purchase, sale or other disposition, or any agreement (other than this Agreement) or other arrangement for the purchase, sale or other disposition, of any part of the Assets, the Office or the Leases in excess of $1,000 individually provided that the aggregate of such undisclosed individual items does not exceed $15,000; (f) any other transaction entered into by Fountainhead that could have a material adverse effect on the Assets, the Office or the Leases; (g) any contracts entered into by Fountainhead; (h) any payments to, or contracts entered into with, any director, officer, member or affiliate of Fountainhead or any loans or advances; (i) any write-down or write-up of the value of any of the Assets; and/or (j) any agreement or understanding, whether in writing or otherwise, for Fountainhead or the Selling Stockholder to take any of the actions specified in paragraphs (a) through (i) above. 2.9 Patents, Trade Names and Trademarks. All patents, patent applications, registered copyrights, trade names, registered trademarks and trademark applications that are 6.
owned by or licensed to Fountainhead are listed on the Disclosure Schedule hereto, which Schedule indicates with respect to each, the nature of Fountainhead's interest therein and the expiration date thereof or the date on which Fountainhead's interest therein terminates. To the best of its knowledge, Fountainhead is not in any way making an unlawful or wrongful use of any confidential information, know-how or trade secrets of any third party, including, without limitation, any former employer of any present or past employee of Fountainhead. 2.10 Contracts. Except as set forth on the Disclosure Schedule, Fountainhead is not a party to or subject to: (a) any employment contract or contract for services not terminable within 30 days by and without penalty or further liability to Fountainhead; (b) any contract or agreement for the sale of any commodity, material, equipment or service material to the Assets, the Office or the Leases; (c) any contract or agreement material to the Assets, the Office or the Leases; other than contracts for the purchase or sale of commodities, material, equipment or services utilized in the ordinary course of business, entered into after the date of the Base Balance Sheet; (d) any contract or agreement with any present or former officer, director or member of Fountainhead or with any persons or organizations controlled by or affiliated with any of them; or (e) other than the Leases, any lease or other agreement under which Fountainhead is lessee of or holds or operates any items of tangible personal property owned by any third party. Any copy of such contract, commitment, plan, agreement or license that has been provided by Fountainhead to INTERSHOP or its counsel prior to the execution of this Agreement is tree, correct and complete, has been subject to no amendment, extension or other modification as of the date hereof and is described on the Disclosure Schedule. Fountainhead is not in default under any such contract, commitment, plan, agreement or license described on the Disclosure Schedule (a "default" being defined for purposes hereof as an actual default or any set of facts which would, upon receipt of notice or passage of time, or both, constitute a default under any such instrument). 2.11 Litigation. There is no litigation pending or threatened against Fountainhead or the Selling Stockholder. Fountainhead is not engaged as a plaintiff to any litigation. 2.12 Compliance with Laws. To the best of Fountainhead's knowledge, Fountainhead is not in violation of any laws or regulations, the violation of which would have a material adverse effect upon the Assets, the Office or the Leases, including, without limitation, laws and regulations relating to employment, occupational safety and environmental matters. Fountainhead has not received notice of, and, to the best of Fountainhead's knowledge, there has never been any citation, fine or penalty imposed upon or asserted against Fountainhead under any federal, state or local law or regulation relating to employment, occupational safety, zoning or environmental matters. 7.
2.13 Warranty or Other Claims. There are no material existing or threatened claims against Fountainhead and no claims asserted against Fountainhead for renegotiation or price redetermination of any business transaction, and there are no facts upon which any such claim could be based. 2.14 Disclosure of Material Information. Neither this Agreement nor the Disclosure Schedule set forth any untrue statement of a material fact relating to Fountainhead or the Selling Stockholder, or omit to state a material fact necessary to make the statements herein or therein relating to Fountainhead not misleading. 2.15 Labor Relations; Employees. Upon consummation of the transactions contemplated by this Agreement, INTERSHOP shall not by reason of anything done prior to the Closing be liable to any Fountainhead employee for so-called "severance pay" or any other payments arising from or in connection with the employment of such employees by Fountainhead or the termination thereof. Fountainhead is in compliance with all applicable laws arid regulations respecting labor, employment and employment practices, terms and conditions of employment and wages and hours. None of Fountainhead's employees belongs to any labor union. 2.16 Creditors. Each of Fountainhead's creditors (collectively, the "Creditors") are listed in the Disclosure Schedule, and the amount owed each such Creditor by Fountainhead as of the date hereof is set forth opposite such Creditor's name. SECTION 3. Representations and Warranties of Intershop. INTERSHOP represents and warrants as follows: 3.1 Organization and Qualification. INTERSHOP is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has full corporate power and authority to own or lease its properties as such properties are owned or leased and to conduct its business as such business is conducted. INTERSHOP is qualified to do business as a foreign corporation in each jurisdiction in which the ownership of its property or the conduct of its business makes such qualification necessary, except where the failure to so qualify would not have a material adverse effect on the business or the financial condition of INTERSHOP. 3.2 Authority. INTERSHOP has full power and authority to enter into this Agreement and the other documents and agreements contemplated hereby and to carry out the transactions contemplated hereby and thereby. Subject to approval by the Intershop Communications AG Vorstand of the 1998 Intershop Communications AG Stock Option Plan, the execution, delivery and performance by INTERSHOP of this Agreement and the other documents and agreements contemplated hereby have been duly and validly authorized and approved by all necessary action on the part of INTERSHOP, and each of this Agreement and the other documents and agreements contemplated hereby executed by INTERSHOP is a legal, valid and binding obligation of INTERSHOP enforceable against INTERSHOP in accordance with its terms, subject to laws of general application from time to time in effect affecting creditors' rights and to the exercise of judicial discretion in accordance with general equitable 8.
****CONFIDENTIAL TREATMENT REQUESTED principles. Neither the execution and delivery of this Agreement by INTERSHOP nor the consummation by INTERSHOP of the transactions contemplated by this Agreement shall (a) conflict with or result in any breach of any material provisions of the Certificate of Incorporation or Bylaws of INTERSHOP, (b)result in a default (or give rise to any right of termination, cancellation or acceleration) under any of the terms, conditions or provisions of any material note, bond, mortgage, indenture, license agreement, lease or other material contract, instrument or obligation to which INTERSHOP is a party or by which INTERSHOP or any of its assets may be bound, (c) violate in any material respects any statute, role, regulation, order, writ, injunction or decree applicable to INTERSHOP or any of its assets where the consequences of any such violations would, in the aggregate, have a material and adverse effect on INTERSHOP, or (d)result in the creation of any material (individually or in the aggregate) liens, charges or encumbrances on any of the assets of INTERSHOP. SECTION 4. Covenants. 4.1 Covenants of Fountainhead and the Selling Stockholder. Each of Fountainhead and the Selling Stockholder hereby covenants and agrees to do each of the following: (a) Perform and fulfill all conditions and obligations on their part to be performed and fulfilled under this Agreement, to the end that the transactions contemplated by this Agreement shall be fully carried out; (b) Use its best reasonable efforts to obtain all authorizations, consents and permits of others required to permit the consummation of the transactions contemplated by this Agreement; (c) File with any governmental agencies or departments or give persons all notices, reports and other documents required by law with respect to this Agreement and promptly submit any additional information or documentary material properly requested by any such governmental agency or department; and (d) Deliver to INTERSHOP and cause their counsel to deliver to INTERSHOP, the closing documents referenced in this Agreement. 4.2 Selling Stockholder's Covenant Not to Compete. The Selling Stockholder hereby covenants and agrees that he will not, without INTERSHOP's express written consent: (a) For **** following the Closing Date, engage in any employment or business activity which is competitive with INTERSHOP in the United States in electronic commerce consulting or management; and (b) For **** after the date of termination of his employment with INTERSHOP, directly or through others, either for himself or any other person: (i)induce or attempt to induce any employee, independent contractor or consultant of INTERSHOP to leave the employ of INTERSHOP; or (ii) induce or attempt to induce any customer, supplier, licensee, or business relation of INTERSHOP to cease doing business with INTERSHOP. 9.
If any provision of Section 4.2 shall be held by a court of competent jurisdiction to be excessively broad as to duration, activity or subject, it shall be deemed to extend only over the maximum duration, activity or subject as to which such provision shall be valid and enforceable under applicable law. 4.3 Affirmative Covenants of INTERSHOP. INTERSHOP hereby covenants and agrees that it shall do each of the following: (a) Assist Fountainhead in its efforts to obtain all authorizations, consents and permits required to permit the consummation of the transactions contemplated by this Agreement and the continuation of Fountainhead's business after consummation of this transaction, including the moving of Fountainhead's assets that are not being acquired by INTERSHOP; and (b) Deliver to Fountainhead and cause its counsel to deliver to Fountainhead, the closing documents referred to in this Agreement. 4.4 Mutual Covenant. Fountainhead, the Selling Stockholder and INTERSHOP each agree that, for tax and other purposes, the fair market value of the Assets and the Leases shall be as set forth in the Disclosure Schedule. SECTION 5. Conditions. 5.1 Conditions to the Obligations of INTERSHOP. The obligations of INTERSHOP to consummate this Agreement and the transactions contemplated hereby are subject to the fulfillment by Fountainhead and the Selling Stockholder, prior to or at the Closing, of the following conditions precedent: (a) Representations; Warranties; Covenants. (i) Each of the representations and warranties of Fountainhead and the Selling Stockholder set forth in Section 2 shall be true and correct in all material respects on and as of the Closing Date. (ii) Fountainhead and the Selling Stockholder shall have performed, on or before the Closing Date, all of their obligations hereunder which by the terms hereof are to be performed on or before the Closing Date. (iii) All action necessary to authorize the execution, delivery and performance of this Agreement by Fountainhead and the Selling Stockholder and the consummation of the transactions contemplated herein shall have been duly and validly taken by Fountainhead and the Selling Stockholder. (iv) Fountainhead and the Selling Stockholder shall have obtained all authorizations, consents and permits of others required to permit the consummation of the transactions contemplated herein. 10.
****CONFIDENTIAL TREATMENT REQUESTED (v) Fountainhead shall have delivered to INTERSHOP a certificate of Fountainhead's President, dated as of the Closing Date, attesting to the effectiveness and validity of Section 5.1(a)(i) through (iv) hereof. (b) Delivery of Certain Documents. Fountainhead and the Selling Stockholder shall have delivered to INTERSHOP copies of all contracts, commitments, leases and other documents required to be delivered as set forth herein. (c) Landlord's Estoppel Certificate. Fountainhead shall have delivered to INTERSHOP an executed Landlord's Estoppel Certificate in the form attached hereto as Exhibit C. (d) Assignment of Leases. Fountainhead shall have delivered to INTERSHOP an executed Assignment of Lease and Assumption of Lease Obligations in the form attached hereto as Exhibit D for each of the Leases. (e) Employment Offer Letter. The Selling Stockholder shall have executed the Employment Offer Letter in the form attached hereto as Exhibit E. 5.2 Conditions to Obligations of Fountainhead. Fountainhead's obligations to consummate this Agreement and the transactions contemplated hereby are subject to the fulfillment by INTERSHOP, or the written waiver by Fountainhead, prior to or at the Closing Date of the following conditions precedent: (a) Representations; Warranties; Covenants. (i) Each of the representations and warranties of INTERSHOP contained in Section 3 shall be true and correct in all material respects on and as of the Closing Date. (ii) INTERSHOP shall, on or before the Closing Date, have performed all of its obligations hereunder which by the terms hereof are to be performed on or before the Closing Date. (iii) All action necessary to authorize the execution, delivery and performance of this Agreement and the Employment Letter by INTERSHOP and the consummation of the transactions contemplated herein shall have been duly and validly taken. (iv) INTERSHOP shall have delivered to Fountainhead a certificate of INTERSHOP's President, dated as of the Closing Date, attesting to the effectiveness and validity of this Section 5.2(a)(i) through (iii) hereof. (b) Employment Offer Letter. INTERSHOP shall have executed the Employment Offer Letter in the form attached hereto as Exhibit E. Pursuant to such Employment Offer Letter, INTERSHOP has agreed to issue to the Selling Stockholder two Incentive Stock Options to purchase up to an aggregate **** shares of INTERSHOP Communications AG common stock, subject to the vesting terms as stated therein. 11.
SECTION 6. Rights and Obligations Subsequent to Closing. 6.1 Survival of Warranties. All representations, warranties, agreements, covenants and obligations herein or in any scheduled certificate or financial statement delivered by any party to another party incident to the transactions contemplated hereby are material, shall be deemed to have been relied upon by the other party and shall survive until the second anniversary of the Closing regardless of any investigation and shall not merge into the performance of any obligation by any party hereto. 6.2 Sales Taxes. Fountainhead shall pay all taxes due with respect to the sale of the Assets and the assignment to INTERSHOP of the Leases. SECTION 7. Indemnification. 7.1 Indemnification by Fountainhead and the Selling Stockholder. Each of Fountainhead and the Selling Stockholder agrees to defend, indemnify and hold INTERSHOP and its officers, directors, employees and agents harmless from and against any damages, liabilities, losses and expenses (including, without limitation, reasonable counsel fees and disbursements and expenses) of any kind or nature whatsoever which may be sustained or suffered by INTERSHOP based upon (a) a breach of any representation, warranty or covenant made by Fountainhead in this Agreement, or in any Schedule or Exhibit hereto or any certificate or financial statement delivered hereunder; (b) by reason of any claim, action or proceeding asserted or instituted arising out of any matter or thing covered by such representations, warranties or covenants, including, without limitation, any tax liabilities of Fountainhead for periods prior to or ending on the Closing Date, any liabilities of Fountainhead not disclosed to INTERSHOP in the Disclosure Schedule or any liabilities arising from any breach of such representations, warranties or covenants; (c) any claims, action or proceeding arising or asserted on or before the Closing Date; (d) any claim, action or proceeding (for severance pay or otherwise) arising in connection with the termination of any employee of Fountainhead, whether or not such termination occurs in connection with the transactions contemplated hereby; or (e) any claims of creditors with respect to the Assets or the Leases ("INTERSHOP Indemnifiable Claims"). INTERSHOP may proceed against Fountainhead or the Selling Stockholder at any time or times for recovery of INTERSHOP Indemnifiable Claims. Notwithstanding any contrary provision of this Section 7.1, Fountainhead and the Selling Stockholder shall have no liability pursuant to this Section 7.1 for INTERSHOP Indemnifiable Claims arising after the date two (2) years from the date of the Closing, other than those arising from or in connection with (i) state, local and federal income and other taxes and penalties and interest thereon or (ii) claims, actions or proceedings (whether arising or asserted before or after the date hereof) asserted or instituted by persons or entities not parties to this Agreement. Neither Fountainhead nor the Selling Stockholder shall be required to make any indemnification payment pursuant to this Section 7.1 until such time as the total amount of all damages that have been directly or indirectly suffered or incurred by INTERSHOP exceeds $10,000 in the aggregate. At such times as the total amount of such damages exceeds $10,000 in the aggregate, INTERSHOP shall be entitled to be indemnified only against the portion of such damages exceeding $10,000. 7.2 Indemnification by INTERSHOP. INTERSHOP agrees to defend, indemnify and hold Fountainhead and the Selling Stockholder harmless from and against any damages, 12.
liabilities, losses and expenses (including, without limitation, reasonable counsel fees and disbursements and expenses) of any kind or nature whatsoever that may be sustained or suffered by Fountainhead or the Selling Stockholder based upon (a) a breach of any representation, warranty or covenant made by INTERSHOP in this Agreement or in any Schedule or Exhibit hereto or any certificate or financial statement delivered hereunder or (b) by reason of any claim, action or proceeding asserted or instituted arising out of any matter or thing covered by such representations, warranties or covenants ("Fountainhead Indemnifiable Claims"). Notwithstanding any contrary provision of this Section 7.2, INTERSHOP shall have no liability pursuant to this Section 7.2 for Fountainhead Indemnifiable Claims arising after the date two (2) years from the date of the Closing. INTERSHOP shall not be required to make any indemnification payment pursuant to this Section 7.2 until such time as the total amount of all damages that have been directly or indirectly suffered or incurred by Fountainhead and the Selling Stockholder exceeds $10,000 in the aggregate. At such times as the total amount of such damages exceeds $10,000 in the aggregate, Fountainhead and the Selling Stockholder shall be entitled to be indemnified only against the portion of such damages exceeding $10,000. 7.3 Notice; Defense of Claims. (a) A party claiming indemnification under Section 7 or Section 8 hereunder (the "Indemnified Party") shall give prompt written notice to the party obligated to indemnify of each claim for indemnification hereunder (the "Indemnifying Party"), specifying the amount and nature of the claims and of any matter which in the opinion of the Indemnified Party is likely to give rise to an indemnification claim. Failure to give notice of a matter which may give rise to an indemnified claim shall not affect the rights of the Indemnified Party to collect such claim from the Indemnifying Party or any transferee in liquidation, except to the extent the Indemnifying Party is prejudiced thereby. (b) The Indemnifying Party shall have the right to control the defense of any third-party claim, action or proceeding giving rise to a claim for indemnification at its own expense in the defense of any such matter or its settlement. The Indemnified Party and the Indemnifying Party agree to render to each other assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such claims, action or proceeding. In connection with any such claims, action or proceeding, no Indemnifying Party shall consent to entry of any judgment or enter into any settlement without the prior written consent of the Indemnified Party. SECTION 8. Confidentiality. Except for the use of such information and documents in connection with the transactions contemplated by this Agreement or as otherwise required by and law or regulation (including the rules of the United States Securities and Exchange Commission, Deutsche Borse and Germany), each of Fountainhead and the Selling Stockholder agree to keep in strict confidence any non-public information obtained by them from INTERSHOP in connection with their investigations or otherwise in connection with the transactions. 13.
SECTION 9. Miscellaneous. 9.1 Fees and Expenses. Each of the parties shall bear such party's own expenses in connection with the negotiation and the consummation of the transactions contemplated by this Agreement, and no expenses of Fountainhead or the Selling Stockholder relating in any way to the purchase and sale of the Assets and assumption of the Leases hereunder shall be charged to or paid by INTERSHOP. 9.2 Notices. All notices, requests, demands and other communications hereunder shall be deemed to have been duly given if delivered or mailed by registered mail:
To: INTERSHOP Communications, Inc. 600 Townsend St., Top Floor West San Francisco, CA 94103 Attention: Craig W. Harding, Esq. Thomas Grohnert INTERSHOP Communications AG Amsinckstr. 57 D-20097 Hamburg Germany Fountainhead Management, Inc. 115 Broadhollow Road, Suite 275 Melville, NY 11747 Attention: President Aaron Kaufman 21 Branwood Road Dix Hills, NY 11747 With a copy to: Mathew O'Connell, Esq. Crest Media Com Capital 320 Park Ave., /17th/ Floor New York, NY 10022
With a copy to:
or to such other address of which either party may by registered mail notify the other party. 9.3 Entire Agreement. This Agreement, including the Schedules and Exhibits referred to herein, is complete; and all communications, promises, representations, understandings, warranties and agreements with reference to the subject matter hereof, and all inducements to the making to this Agreement relied upon by any party hereto, have been expressed herein or in such Schedules or Exhibits. 9.4 Governing Law. This Agreement, and the rights of the parties hereto, shall be governed by and construed in accordance with the laws of the State of California as such laws apply to agreements among California residents made and to be performed entirely within the laws of the State of California. 14.
9.5 Broker's Fees. Each party hereto represents and warrants that no agent, broker, investment banker, person or firm acting on behalf of or under the authority of such party hereto is or will be entitled to any broker's or finder's fee or any other commission directly or indirectly in connection with the transactions contemplated herein. Each party hereto further agrees to indemnify each other party for any claims, losses or expenses incurred by such other party as a result of the representation in this Section 6.14 being untrue. 9.6 Assignability. This Agreement shall be assignable by INTERSHOP to an affiliate of INTERSHOP or otherwise upon written notice to Fountainhead and the Selling Stockholder, although no such assignment shall relieve INTERSHOP of any liabilities or obligations under this Agreement. This Agreement may not be assigned by Fountainhead or the Selling Stockholder without the prior written consent of INTERSHOP. This Agreement shall be enforceable by, and shall inure to the benefit of, the parties hereto and their permitted successors and assigns, and no others. 9.7 Publicity and Disclosures. No press releases or general public announcements, either written or oral, of the transactions contemplated by this Agreement, shall be made without the prior knowledge and written consent of the parties. 9.8 Waivers; Severability. The failure of any of the parties to this Agreement to require the performance of a term or obligation under this Agreement or the waiver by any of the parties to this Agreement of any breach hereunder shall not prevent subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach hereunder. In case any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision or part of a provision of this Agreement but this Agreement shall be construed as if such invalid or illegal or unenforceable provision or part of a provision had never been contained herein. 9.9 Headings. The headings of the Sections and paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction hereof. 9.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall constitute one agreement. 15.
IN WITNESS WHEREOF, the parties hereto have caused this ASSET PURCHASE AGREEMENT to be executed as of the date set forth above by their duly authorized representatives. INTERSHOP Communications, Inc.
By: /s/ Stephan Schambach ------------------------------------Stephan Schambach President and CEO
Fountainhead Management, Inc.
By: /s/ Aaron Kaufman ------------------------------------Aaron Kaufman President and CEO
By: /s/ Aaron Kaufman ------------------------------------Aaron Kaufman
****CONFIDENTIAL TREATMENT REQUESTED SCHEDULE I
Acquired Assets 1) RECEIVABLES, NET 2) SECURITY DEPOSITS 3) FIXED ASSETS, NET $**** **** ****
SCHEDULE II Excluded Assets 1. Cash in Fountainhead's bank account at Citibank as of the effective date of the Agreement.
EXHIBIT A Leases
EXHIBIT B DISCLOSURE SCHEDULE This Disclosure Schedule sets forth all the disclosures comprising exceptions to the representations and warranties of Fountainhead Management, Inc. in connection with that certain Asset Purchase Agreement, dated as of February 26, 1999: Section 2.2: None Section 2.8a: None Section 2.8b: None Section 2.8c: None Section 2.8d: None Section 2.8e: None Section 2.8f: None Section 2.8g: Sub Contractor Agreement with SysGen Section 2.8h: None, other than normal recurring payroll. Section 2.8i: None Section 2.8j: None Section 2.9: None Section 2.10: None Section 2.14: None Section 2.16: None, except as for the holders of the Notes described on the attached.
****CONFIDENTIAL TREATMENT REQUESTED NON-BANK FINANCING 3/4/99 1. Promissory Note (Unsecured) Parties: Fountainhead Management, Inc. and Werner Schmitt Date: 9/28/97 Term: 9/28/98 (no notice of default or claim by lendor) Amount: $**** Interest: 15% 2. Promissory Note (Unsecured) Parties: Fountainhead Management, Inc. and Werner Schmitt Date: 5/6/98 Term: 12 months (?) Amount: $**** Interest: 15% 3. Promissory Note (Unsecured) Parties: Fountainhead Management, Inc. and Dru Doshi Date: 8/5/97 Term: 7/15/98 (no notice of default or claim by lendor) Amount: $**** Interest: 15%
EXHIBIT C Landlord's Estoppel Certificate
EXHIBIT D Assignment of Leases
****CONFIDENTIAL TREATMENT REQUESTED EXHIBIT E EMPLOYMENT OFFER LETTER: AARON KAUFMAN February 26, 1999 Aaron Kaufman 21 Branwood Road Dix Hills, NY 11747 RE: Employment Terms Dear Aaron: Intershop Communications, Inc. is pleased to offer you the position of Director of Professional Services - East Coast on the following terms: 1. You initially will report to the Senior Vice President of Sales and Marketing. You will work out of our office in Melville, New York. Intershop may change your position, duties, and work location from time to time due to business necessity provided that any material diminution of your position or duties or a change in your work location which requires you to relocate your home will be considered a termination without cause. 2. Commencing on March 26, 1999, your compensation will be $**** per semi-monthly pay period (annualized at $****), less payroll deductions and all required withholdings. 3. You will be eligible for the standard Company benefits on the first of the month following the your first 60 days of employment at Intershop. Details about these benefits are provided in the Summary Plan Description available for your review. 4. You will receive incentive stock options (the "Initial Options") to purchase up to **** shares of the Intershop Communications AG common stock at the average closing price for Intershop Communications AG common stock for the 10 business days prior to your date of hire (**** euros). The Initial Options will be subject to the terms and conditions of the Intershop Communications AG 1998 Stock Option Plan, except with regard to vesting, pursuant to a stock option agreement in a form acceptable to both you and Intershop Communications AG. The vesting will commence on March 26, 1999. If your employment is terminated (a) by your death or (b) by Intershop without "cause" then 100% of the shares subject to purchase under the Initial Options will vest upon the date of termination. However, if (a) you voluntarily terminate your employment with Intershop or (b) Intershop terminates your employment with "cause" then the Initial Options shall vest pursuant to the terms and conditions of the Intershop Communications AG 1998 Stock Option Plan.
****CONFIDENTIAL TREATMENT REQUESTED For purposes of this Section 4, unless otherwise agreed to by the parties "cause" will be determined by an independent panel of arbitrators (one selected by each party, and a third appointed by the two selected arbitrators) in accordance with the Commercial Rules of the American Arbitration Association (the "Rules"); provided, however, that in the event of conflict between the Rules and the terms of this Agreement, the terms of this Agreement shall govern. The place of arbitration shall be San Francisco, California, and the law applicable to the arbitration procedure shall be California Labor Code, applicable California judicial decisions, and the Federal Arbitration Act (9 USC (S) 2). To commence arbitration of any such dispute, the party desiring arbitration shall notify the other party in writing in accordance with the Rules. On the thirtieth business day following the appointment of the arbitrator, each party shall submit to the arbitrator a form of final decision specifying the relief to which such party in good faith believes it is entitled. Such form of final decision shall not be subject to further modification by the party making such submission after it is received by the arbitrator. Within thirty (30) days after the submission of such proposed forms of decision, or as soon thereafter as may be reasonably possible, the arbitrator shall adopt as its decision one of the two alternative submissions made by the respective parties. The alternative chosen by the arbitrator shall be chosen in its entirety and shall not be subject to modification by the arbitrator. The arbitrator shall choose the form of final decision that, in its judgment, is most consistent with the terms of this Agreement and the intent of the parties, as supported by evidence presented by the parties in the arbitration proceedings or, if the subject matter of the dispute is not clearly addressed in or determinable under this Agreement, that, in its opinion, is legally correct under the circumstances. The arbitrator shall not be required to provide the reasons for its decision. The parties agree that the award of the arbitrator shall (1) be the sole and exclusive remedy between them regarding any claims, counterclaims, or issues presented to the arbitrator; and (2) be final and subject to no judicial review. The parties hereto agree that judgment on the arbitration award may be entered and enforced in any court having jurisdiction over the parties or their assets. Each party shall, except as otherwise provided herein, be responsible for its own expenses, including legal fees, incurred in the course of any arbitration proceedings. The fees of the arbitrator shall be divided evenly between the parties. 5. You will also receive incentive stock options to purchase up to **** shares of the Intershop Communications AG common stock on March 26, 1999 at the average closing price for the ten (10) business days prior to the date of grant. The options shall vest pursuant to and be subject to the Intershop Communications AG 1998 Stock Option Plan. 6. As an Intershop employee, you will be expected to sign and comply with a Proprietary Information and Inventions Agreement which prohibits unauthorized use or disclosure of Intershop proprietary information. 7. Your employment relationship with Intershop is at-will. You may terminate your employment with Intershop at any time and for any reason whatsoever simply by notifying Intershop. Likewise, Intershop may terminate your employment at any time and for any reason whatsoever, with or without cause or advance notice. This at-will employment relationship cannot be changed except in writing signed by a Company officer.
8. The employment terms in this letter supersede any other agreements or promises made to you by anyone, whether oral or written. As required by law, this offer is subject to satisfactory proof of your right to work in the United States. 9. Your employment will start as of February 26, 1999. For the period through March 26, 1999, you will be entitled to "wind down" the Fountainhead business. We look forward to your favorable reply and to a productive and enjoyable work relationship. Sincerely yours,
/s/ Stephan Schambach INTERSHOP COMMUNICATIONS, INC. Stephan Schambach President and CEO
/s/ Aaron Kaufman ----------------------------------Aaron Kaufman 2/26/99 ----------------------------------Date
****CONFIDENTIAL TREATMENT REQUESTED EXHIBIT F PROMISSORY NOTE FOR VALUE RECEIVED, the undersigned hereby jointly and severally promise to pay to the order of Fountainhead Management Inc., the sum of ****, together with interest thereon at the rate of 8 1/4% per annum on the unpaid balance, as follows: (i) ****, (ii) ****, (iii) ****, (iv) ****. All payments shall be first applied to interest and the balance to principal. This Note may be prepaid, at any time, in whole or in part, without penalty. This Note shall at the option of the holder hereof be immediately due and payable upon failure to make any payment due hereunder or for breach of any condition of any security interest, mortgage, pledge agreement or guaranty granted as collateral security for this Note or breach of any condition of any security agreement or mortgage, if any, having a priority over any security agreement or mortgage on collateral granted, in whole or in part, as collateral security for this Note or upon the filing by any of the undersigned of an assignment for the benefit of creditors, bankruptcy, or for relief under any provisions of the Bankruptcy Code; or by suffering an involuntary petition in bankruptcy or receivership not vacated within thirty days. In the event this Note shall be in default, and placed with an attorney for collection, then the undersigned agree to pay all reasonable attorney fees and costs of collection. Jurisdiction and venue for any such collection proceedings will be the State of New York. Payments not made within 10 business days of written notice by the holder (which notice can be provided at any time following due date). All payments hereunder shall be made to such address as may from time to time be designated by any holder hereof. The undersigned and all other parties to this Note, whether as endorsers, guarantors or sureties waive demand, presentment and protest and all notices thereto and further agree to remain bound, notwithstanding any extension, modification, waiver, or other indulgence by any holder or upon the discharge or release of any obligor hereunder or to this Note, or upon the exchange, substitution, or release of any collateral granted as security for this Note. Signed and sealed under pains and penalties of perjury this 26 day of February, 1999.
/s/ Philip Oreste Philip Oreste Vice President, Finance INTERSHOP Communications, Inc.
EXHIBIT 10.10 Cooperation Agreement between Intershop Communications GmbH Leutagraben 2-4 07743 Jena and Deutsche Telekom AG - Zentrale [Central Office] Friedrich Ebert Allee 140 53133 Bonn Preamble Intershop Communications GmbH (referred to herein as IS) and Deutsche Telekom AG (referred to hereinafter as DT) intend to enter into a partnership in the area of electronic commerce (Internet) as described below. This cooperation should make it possible for DT to develop new fields of business and new sales markets with the utilization of IS technology. IS will support DT in utilizing the best technology currently available. DT will use its own resources and distribution channels to implement and market IS technology. Both parties will work closely to develop new markets throughout the world and to implement business models. IS will actively support DT in construction of the DT Technology Center in Palo Alto, USA. This contract shall not establish grounds for exclusivity for either party. Section 1: Object of the agreement IS shall supply DT with the current version of INTERSHOP Mall software for UNIX and Windows NT. The scope of the delivery shall include a version which is currently in the planning stage and will support Oracle and Informix, the source text, technical documentation, all handbooks in printed and digital form and training sessions to be conducted. INTERSHOP Mall software and end user documentation shall be supplied in German, English and French. DT shall also be supplied with translations planned for the future. Translations into more complicated languages (such Chinese and Arabic) shall be delivered to DT against a
****CONFIDENTIAL TREATMENT REQUESTED corresponding cost contribution. The scope of the service rendered shall also include the Japanese translation of the software and documentation planned for the third quarter of 1998. The scope of the services rendered shall also include the cost of the Sybase licenses needed for the operation of INTERSHOP Mall. Licenses for Oracle or Informix databases shall not be covered by this agreement. DT shall provide suitable protection for the source text to prevent access by any unauthorized third parties (e.g., by depositing it with a notary or an attorney). Section 2: Scope of the license IS shall grant DT a license to INTERSHOP Mall software without quantity restrictions for a period of **** years after the signing of this agreement. The License shall be granted only for DT's own use. DT's own use shall also include use by 100% subsidiaries of DT and subsidiaries whose majority interest and whose operative control lie with DT upon signing of this agreement and shall continue to lie with DT in the future. Should DT decide in the future to disincorporate and legally divest itself of the TMS department, then the TMS department shall also be entitled to DT's own use. In case of doubt, the parties shall reach an agreement by mutual consent. In the event DT wants to sell sublicenses to third parties, a separate distribution agreement shall be concluded. The list prices in effect shall be appended to this agreement as Addendum 1. The authorization to prepare copies of the master version or to circulate previously prepared copies without the consent of IS shall expire on expiration of the license. However, DT shall have the right to supply copies and to complete all business relationships planned and/or in the bidding phase during the term of the agreement with a binding bid time of half a year. DT shall have the option of claiming maintenance service after expiration of the term of the agreement. The cost of such maintenance service shall amount to US $**** p.a. Of this amount,. US $**** shall be due at the start of the accessory maintenance service agreement, and US $**** shall be due **** after the accessory agreement goes into effect. The maintenance service shall be optional and must be requested at least six months before expiration of this cooperation agreement. It shall run for **** with the option of a final extension of ****. The maintenance service agreement shall include the following services: - supplying technical papers, documentation, marketing materials in an electronic file format, - **** max days of engineering support for each year of the extension, - elimination of any software mistakes and delivery of minor updates (patches) within a suitable period of time.
****CONFIDENTIAL TREATMENT REQUESTED During the term of the maintenance service agreement, IS shall grant DT the same conditions for claiming additional services as described in the cooperation
agreement (in particular (S) 5, (S) 6). Delivery of new software releases shall be excluded from this agreement.
Section 3: Remuneration DT shall pay IS the amount of US $**** plus the statutory value-added tax. Payment of the agreed remuneration shall be made within thirty (30) days after signing of the cooperation agreement. All prices shall be considered as price plus statutory value-added tax. Section 4: Update package The scope of the agreement shall include the update package described below. This shall grant DT and its subsidiaries and affiliates described in (S) 2 worldwide use of INTERSHOP Mall software with the following services: During the term of the cooperation agreement, IS shall - deliver the latest software version (planned updates at least once a year), - supply technical documents, documentation and marketing materials in an electronic file format (for reproduction), - conduct an initial training session for each software release for a study group to be appointed by DT (maximum 20 people), - provide **** days of engineering support in the first year of the agreement **** days of engineering support in the second year of the agreement and **** days of engineering support in the third year of the agreement for a study group within DT to be appointed on a permanent basis (no end user support!), - eliminate any software errors and provide minor updates (patches) within a suitable period of time, - provide DT with the improved plug-ins (modules) that are also to be made available to other customers at no cost; more far-reaching developments and those containing third party technologies shall be supplied against appropriate remuneration and shall not be included in the update package. IS shall to the best of their ability take into account suggestions by DT for special features in all new software versions. DT shall pay the following additional remuneration for the update package:
****CONFIDENTIAL TREATMENT REQUESTED
Start of agreement January 1, 1998 January 1, 1999 January 1, 2000 December 31, 1997 December 31, 1998 December 31, 1999 end of agreement US US US US $**** $**** $**** $****
The additional remuneration shall be payable in quarterly portions in advance. The support and training bids included in this service shall not be applicable in this form for the subsidiaries and affiliated companies of DT as described in (S) 2 or for departments outside the specified study group or for customer of DT. Agreements for service, maintenance, programming and support can be concluded by all other departments and subsidiaries of DT at the respective prevailing hourly and daily rates. Section 5: Professional services Subsequent to the initial support services to be rendered by IS to DT and contained in the update package, the following terms shall be in effect with regard to professional services: IS shall provide DT with resources from their Professional Service Team for planning services and reference installations (e.g., in planning and construction of a data center). IS shall offer DT reduced daily rates for this purpose for services as listed below:
Project management Engineering Prototyping Web design Quality assurance Support **** **** **** **** **** **** DM DM DM DM DM DM per per per per per per man man man man man man day day day day day day
On request, IS shall assist DT in establishing its own end user hotline. In view of the personnel resources and accommodations available at DT, an additional source of revenue shall be created for DT in this regard. For support in establishing its own DT hotline department (merchant and distribution partners' hotline and training sessions) the parties shall count on a time expenditure of **** weeks ****. The goal shall be to establish a scalable hotline and training concept with which the size of the hotline and training department can be individualized to conform to the given customer requirements. IS shall make available to DT at no cost the internal database as cased-based [sic; case-based?] reasoning or similar technologies as part of the support provided in establishing the end user hotline. Section 6: Technical support
****CONFIDENTIAL TREATMENT REQUESTED The following terms shall apply to technical support services that are not covered by the remuneration for the update package: IS shall offer technical support to DT at a reduced hourly rate. The technical support shall include all technical services not covered by the remuneration for the update package. Regular support shall be offered at the rate of DM **** weekdays from 9 a.m. to 5 p.m. as well as 24-hour support including weekends at the rate of ****. Section 7: Contract hierarchy For the contract services regulated in the preceding (S) 1 through (S) 6, the following shall be in effect in the order listed: a. this agreement: The specific terms of this agreement for the transfer of data processing programs (BVB transfer); the contractual terms of Deutsche Telekom AG for consulting and support services in the data processing field (on a contractual basis) (Addendum 2) and the contractual terms for consulting and support services of Deutsche Telekom AG in the data processing field (based on a shop agreement) (Addendum 3); b. the General Terms of Business for Acquisitions by Deutsche Telekom AG (AGBE) (Addendum 4). Section 8: Obligations of IS In view of the proposed activities, IS shall render the following services that shall be paid for by the remuneration for the update package specified in Section 4:
1. Technical obligations: a. Providing, on demand, the specific OEM adaptation of the user interfaces for DT with respect to the DT corporate identity; b. Supplying project directors and developers at the reduced daily rates given in the addendum to implement DT projects,
c. d. Providing the engineering support days listed in (S) 4; Informing DT regularly regarding the release status and planned new version features as well as the general stares of projects related to DT,
e. Preparing special documentation as part of DT projects; f. Supplying Intershop Mall software updates as part of the service described above; g. Supplying alpha and beta versions of Intershop Mall software to DT; h. Supplying all current Intershop products to DT for internal evaluation; i. Provide initial training for DT developer teams with each software release. The parties shall reach a separate agreement regarding remuneration for other technical obligations. 2. Marketing activities: The following marketing activities represent a mutual declaration of intent: a. The presentation of DT as a partner of IS on its web site with a link to the DT web site; b. Inclusion of DT in all IS marketing and sales materials; c. Participation in joint marketing, distribution, press and PR activities; d. Inclusion of DT in IS training programs. 3. PR obligations: a. Use of worldwide IS PR activities for disclosure of the partnership with DT; b. Preparation of press reports for important joint projects; c. Participation in the press conference organized by DT for presentation of the partnership with IS;
d. Participation in press conferences and conventions; e. Joint appearances at fairs and exhibitions. Section 9: Obligations of DT In view of the proposed activities, DT shall render the following services: 1. Technical obligations: a. Supplying a special project manager and a suitable developer team; b. Participation of DT in training sessions organized by IS; c. Holding training sessions by DT for DT's own customers. 2. Marketing activities: The following marketing activities represent a mutual declaration of intent: a. Presenting IS as the partner of DT at its TMS web site with a link to the IS web site; b. Inclusion of IS in all electronic commerce, marketing and sales materials; c. Participation in joint marketing, distribution, press and PR activities; d. Inclusion of IS in the DT training program; e. Transfer of text and graphic elements to IS for use in IS branding. 3. PR obligations: a. Use of worldwide DT PR activities for disclosure of the partnership with IS; b. Preparation of press releases for important joint projects; c. Participation in press conferences and conventions; d. Joint appearances at fairs and exhibitions; e. DT and IS shall disclose their partnership at a joint press conference immediately after the signing of the agreement. The main thematic point shall be the influence of the two partners on the economic future of
worldwide electronic commerce. Section 10: Mutual declaration of consent further regarding areas of cooperation IS and DT intend to collaborate in the following fields and enter into negotiations regarding corresponding agreements: a. Development of a worldwide marketing and sales plan to identify and safeguard joint distribution potentials; b. Joint preparation of marketing materials and brochures; for joint marketing activities, a median value shall be determined to permit establishment of mutual compensation services and advertising cost allowances; c. Developing a joint worldwide PR strategy; d. Joint participation in fairs, exhibitions, road shows and seminars; e. Joint development and promotion of reference installations; f. Establishing contact with the respective technology partners; g. Corporate participation of DT in Intershop Communications Inc. in the amount of 7.84% of the joint capital by stipulation of a corresponding option for DT which shall be limited to a term of March 31, 1998. Section 11: Antitrust clause The parties are aware of the fact that the cooperation agreements based on the declarations of intent as per (S) 8 through (S) 10 of this agreement, in particular the option agreement intended as per (S) 10 g of this agreement regarding the acquisition of shares in Intershop Communications Inc. by DT, shall be reviewed from the standpoint of antitrust laws before the signing of this agreement and may possibly require legalization by antitrust authorities.
Section 12: Confidentiality The parties agree to the strictest mutual confidentiality regarding all business and industrial secrets of which the other party becomes aware as part of this cooperation. This confidentiality requirement shall remain in effect even after the duration of this agreement. The parties are aware of the fact that violation of this confidentiality obligation would incur liability for damages. Each party shall admonish his own employees to take the greatest possible care in handling the other party's confidential information. Section 13: Guarantee IS shall provide a guarantee within the framework of statutory provisions. Liability for indirect losses or consequential damages for deficiencies shall be precluded in any case. The guarantee shall expire as soon as there is any interference by DT or any other third party in the products transferred by IS. In the event that IS is obligated to correct errors, eliminate shortcomings and provide support and fails to comply with this obligation, DT shall grant IS a suitable grace period to comply with said obligation. If IS again fails to comply with such a demand, DT shall grant IS a final grace period and then shall be entitled to eliminate said shortcomings itself at the expense of IS or to commission a third party to eliminate said shortcomings or to perform file required service.
EXHIBIT 10.11 ****CONFIDENTIAL TREATMENT REQUESTED Sybase / Intershop Reseller Agreement Summary of Principle Terms
Parties: Sybase GmbH Intershop Communications GmbH March 1996 Allows Intershop to develop e-commerce solutions that utilize embedded runtime versions of Sybase database technology, and to sublicense derivatives of the Sybase product through its distributors. Sybase agrees to pay Intershop commissions under certain circumstances if a user upgrades to a full Sybase database license. Intershop to receive front line support from Sybase. Intershop agrees to pay Sybase the fees for runtime versions, runtime support and transaction fees 30 days after the end of the month during which Intershop has sent out the copy of the Sybase derivative. Following July 1, 1996, Intershop paid Sybase nine installments for the bulk purchase of runtime licenses, a total of DM **** Sybase can audit Intershop only once a year to determine the correct usage and the number of sublicensed copies of Sybase programs. The original contract was scheduled to expire on March 28 1998, but was extended and amended on March 20 1998. The extension acknowledged the relocation of Intershop's headquarters to San Francisco and extended the account status to global. License fees for the entire year of 1998 were increased to DM **** payable in four installments. If Sybase desires, the parties will determine the wording of the announcement of their cooperation. Both parties have permission that Intershop participates in the Sybase VAR program and that Intershop develops and offers solutions that include Sybase programs.
The Sybase warranty is good for one year starting with the date of delivery to Intershop and assures that the program was developed according to the current state of technology, thoroughly tested and is in compliance to the functionality described in the documentation. The warranty includes only Sybase product. Sybase does not warrant the product developed and distributed by Intershop. In this contract extension, Sybase offered Intershop the annual option to purchase licenses at the same pricing for the following
EXHIBIT 10.12 ****CONFIDENTIAL TREATMENT REQUESTED Oracle / Intershop Reseller Agreement Summary of Principal Terms
Parties: Oracle Deutschland GmbH Intershop Communications GmbH October 15, 1998; extended through **** Alliance Member (Reseller) Oracle run time products sold as application specific full use licenses. An application-specific full use license is a restricted type of license sold by a Solution Provider in conjunction with its Application Package. Application Specific Full Use licenses may only be used by the end-user to execute the Alliance Member's application program. ****. Intershop or its Distributor will pay ****% of the list price (without a discount) to Oracle. Intershop will give 90 days' notice to Oracle of any change in the Intershop price list. Intershop will provide quarterly sales and royalty reports to Oracle. The use of the Oracle product is currently restricted to **** CPUs (but can be any machine, not just workgroup servers) The Oracle programs may be used in conjunction with an Intershop application that has been modified or customized provided the customizations and modifications remain within the scope of the Intershop application. For example, if the Alliance Member's application is defined as a financial application, which manages accounts payable, accounts receivable, and generates invoices, the application could not be modified to include a customized order entry module, or
Date: Type of Agreement Products:
Intershop Applications: Royalty payable
a shipping and receiving module.
EXHIBIT 10.13 TECHNOLOGY LICENSE AND DISTRIBUTION AGREEMENT This Technology License and Distribution Agreement (the "Agreement") is entered into this 2nd day of December 1998 (the "Effective Date") between Sun Microsystems, Inc. ("Sun"), with a place of business at 901 San Antonio Road, Palo Alto, California 94303 and Intershop Communications GmbH and its Affiliates, a German corporation with a place of business at 600 Townsend Street, San Francisco, CA 94103 ("Licensee"). RECITALS WHEREAS Sun wishes to license its Java/TM /technology, while maintaining compatibility among Java language based products; and WHEREAS Sun wishes to protect and promote certain trademarks used in connection with Java technology; and WHEREAS Licensee wishes to develop and distribute products based upon Sun's Java technology; NOW THEREFORE, Sun and Licensee enter into this Agreement on the following terms. 1.0 DEFINITIONS 1.1 "Application Programming Interfaces" or "APIs" means the names of class library calls and the number and types of arguments they take in invoking the functionality of such class libraries. 1.2 "Applet" means a Java application which (i) runs on the Java Environments and (ii) consists of Java byte codes executable by the Java Runtime Interpreter (but does not include or incorporate the Java Runtime Interpreter or the Java class libraries). 1.3 "Bug Fixes" means correction of errors in either the Shared Part or Platform Dependent Part of the Technology. 1.4 "Documentation" means the materials which Sun provides for use with the Technology, as more particularly identified in Exhibit C, as may be revised by Sun during the Term. 1.5 "Derivative Work(s)" means any work which is based upon the Technology, such as a revision, modification, translation, abridgement, condensation, expansion, collection, compilation or any other form in which the Technology may be recast, transformed or adapted, any new material, information or data relating to and derived from the Technology, the preparation, use and/or distribution of which, in the absence of this Agreement or other authorization from the owner, would constitute infringement under applicable law. 1.6 "Distributors" means distribution channels designated by Licensee for distribution of Products, including OEMs, distributors, resellers, dealers and sales representatives. 1.7 "Exhibit C" means collectively Exhibits C-1 through C-n which incorporate into the Agreement the specific terms and conditions for each Technology licensed hereunder. 1.8 "FCS" means first commercial shipment of a production version of a software or hardware product or technology. 1.9 "Field of Use" means the relevant market segments and/or product areas for each Technology specified in Exhibit C. 1.10 Java Classes" means the specific class libraries associated with each Technology defined in Exhibit C, as may be revised by Sun during the Term.
1.11 "Java Environment(s)" means each or all the Java Application Environment ("JAE"), Personal Java Environment ("pJava"), Embedded Java Environment ("eJava"), JavaCard Application 1
Environment ("JCAE"), and future Java Environments, described in specifications from Sun, as may be introduced or revised by Sun during the Term. 1.12 "Java Runtime Interpreter" means the program(s) which implement the Java virtual machine for a particular Java Environment as specified in the Java Virtual Machine Specification from Sun, as may be revised by Sun during the Term. 1.13 "Java Test Suites" means the applicable test suites associated with each Technology, as may be revised by Sun during the Term. 1.14 "Licensee Open Class(es)" means an additional Java class and associated API(s) developed by or for Licensee which: (i) extends the functionality of a Java Environment; and (ii) is exposed to third party Software developers for the purpose of developing additional software which invokes such additional Java class. 1.15 "OEM" means an original equipment manufacturer of hardware and/or software, who integrates Products into its own valued added products or technologies which represent a significant functional and value enhancement to the Products, and which are distributed through its established distribution channels. 1.16 "Platform Dependent Part" means those Source Code files (and corresponding binary code) of the Technology which are not in a "share" directory or subdirectory thereof. 1.17 "Product(s)" means a Licensee Product into which the Technology is implemented or integrated. A Product must: (i) have a principal purpose which is substantially different from that of the stand-alone Technology; (ii) represent a significant functional and value enhancement to the Technology; (iii) operate in conjunction with the Technology; and (iv) not be marketed as a technology which replaces or substitutes for the Technology. A list of Products current as of the Effective Date is included in Exhibit C for each Technology. Licensee may add Products within the designated Field of Use for such Products by written notification to Sun. 1.18 "Shared Pan" means those Source Code files (and corresponding binary code) of the Technology which are identified as "shared" (or words of similar meaning) or which are in any "share" directory or subdirectory thereof. 1.19 "Source Code" means the human readable version, in whole or in part, of the Technology supplied to Licensee and any corresponding comments and annotations. 1.20 "Standard Extensions" means the additional classes and associated APIs specified in Exhibit C. 1.21 "Technology" means each specific Java technology (excluding Tools) licensed by Sun hereunder as more fully described in Exhibit C, as may be revised by Sun during the Term, and Upgrades thereto to the extent Licensee is authorized to receive them. 1.22 "Term" means the term of the Agreement as specified in Section 9.1. 1.23 "Tools" means any Java Test Suites, and other development tools, in source or binary code form specified in Exhibit C, as may be revised by Sun during the Term. 1.24 "Upgrades" means bug fixes, modifications, variations, and enhancements, to the extent included in a patch or release of the Technology unless otherwise specified in Exhibit C, which Sun generally licenses as part of the Technology. 1.25 "Affiliate" means the parent corporation (Intershop Communications AG) of Intershop Communications GmbH, as well as any corporation or other legal entity in which Intershop Communications AG directly or indirectly owns or controls, and continues to own or control, fifty percent (50%) or more of the voting interests (representing the right to vote for the election of directors or other managing authority) in an entity. 2.0 LICENSE GRANTS 2.1 Source Code Product Development License.
a. Product Development. Subject to the terms and conditions contained in this Agreement, Sun hereby grants to Licensee, solely for the Field(s) of Use, a worldwide, non2
exclusive, non-transferable license to use and modify the Source Code to create Derivative Works including: (i) porting of the Platform Dependent Part to platforms other than those offered by Sun and specified in Exhibit C; (ii) development of Bug Fixes; (iii) integration of the Source Code, Bug fixes and Derivative Works with other source code of Licensee; and (iv) compiling all of the foregoing to create Products. b. Product Development Restrictions. In the exercise of the rights granted in Section 2.1a. above, Licensee: (i) must include the Shared Part, complete and unmodified in the Product; (ii) may not modify the functional behavior of the Java Runtime Interpreter or the Java Classes; (iii) may not modify or subset the interfaces of the Java Runtime Interpreter or the Java Classes; (iv) may not subset the Java Classes; (v) may not modify or extend the public class or interface declarations whose names begin with "java", "sun.hotjava", "COM.sun" or their equivalents in any subsequent naming convention; and (vi) may not sublicense or distribute the Source Code or Derivative Works thereof, to third parties, except as provided in Section 2.4. c. Bug Fixes. Licensee will inform Sun promptly, and no later than it informs any third party, of any bugs identified in the Technology, and to the extent that Licensee elects to correct such bugs, Licensee will make such Bug Fixes promptly available to Sun free of all restrictions as they are implemented. d. Proprietary Rights Notices. Licensee shall not remove any copyright notices, trademark notices or other proprietary legends of Sun or its suppliers contained on or in the Technology or Documentation, and shall incorporate such notices in all Products and related documentation as applicable;. Licensee shall comply with all reasonable requests by Sun to include additional copyright or other proprietary rights notices of Sun or third parties from time to time; provided, however, that in no event will Intershop be required to add a "based on Java" mark or associated logo to product packaging or to the splash screen for the Product. e. Applet Tags. Any Product that reads or writes hypertext markup language (HTML) or standard generalized markup language (SGML) shall use the Document Type Definition ("DTD") as specified in Exhibit A when referencing the Applet tag, unless another DTD is defined for the Applet tag by an industry standard. 2.2. Source Code Research License. a. Subject to the terms and conditions contained in this Agreement, Sun hereby grants to Licensee, without the right to sublicense, a worldwide, non-exclusive, non-transferable license to use and modify the Source Code for internal research and development, to facilitate the development of Products. This research license is not subject to the restrictions set forth in Section 2.1b above, provided that Licensee may not incorporate any of the Source Code or Derivative Works created pursuant to this research license into Products or any other products. 3
****CONFIDENTIAL TREATMENT REQUESTED b. If Licensee identifies any changes which are necessary to the Shared Part to enable porting to other platforms, Sun will make reasonable efforts to evaluate the feasibility of implementing such changes or reclassifying the necessary code as Platform Dependent. 2.3. Documentation License. Subject to the terms and conditions contained in this Agreement, Sun hereby grants to Licensee, solely for the Field(s) of Use, a worldwide, non-exclusive, non-transferable license to use, modify, translate and subset the Documentation to create technically accurate Licensee documentation associated with the Products. 2.4 Sublicensing of Source Code. Licensee may deliver and sublicense the Source Code to third parties (excluding customers of Licensee) located in the United States, the European Union (as constituted as of the Effective Date), Canada and Japan for the sole purpose of furnishing services to Licensee in connection with the rights granted in Section 2.1 above; provided that all such third parties shall execute appropriate documents acknowledging their work-made- for-hire status and/or effecting assignments of all intellectual property rights with respect to such work to Licensee or Sun, as appropriate, and undertaking obligations of confidentiality and nonuse with respect to such work. Sun may, upon its request, review and approve or reject any documents proposed for use by Licensee prior to any use of such contractors. 2.5 **** 2.6 Tools License Grant. Subject to the terms and conditions contained in this Agreement, Sun hereby grants to Licensee, a worldwide, non-exclusive, non- transferable license to use the Tools solely for the purpose of developing and testing Products. Licensee may not sublicense the Tools unless specifically provided in Exhibit C. 4
****CONFIDENTIAL TREATMENT REQUESTED 2.7 **** 2.8 **** 5
****CONFIDENTIAL TREATMENT REQUESTED 2.9 **** 2.10 No Other Grant. Each party agrees that this Agreement does not grant any right or license, under any intellectual property rights of the other party, or otherwise, except as expressly provided in this Agreement, and no other right or license is to be implied by or inferred from any provision of this Agreement or by the conduct of the parties. 3.0 SUPPORT AND UPGRADES 3.1 Licensee Support and Upgrades. Sun shall provide support and Upgrades to Licensee under the terms and conditions specified in Exhibit C, and payment terms specified in Section 4.1. The frequency of Upgrades shall be at Sun's sole discretion provided that any Upgrades will be made available to Licensee at the same time as Sun makes such Upgrades generally available to commercial licensees of the applicable Technology. 3.2 End User Support. Licensee is not authorized to make any representation or warranty on behalf of Sun to Licensee's end users or third parties. Licensee shall provide technical and maintenance support service for its Distributors and end user customers in accordance with Licensee's standard support practices. Sun shall not be responsible for providing any support to Licensee's Distributors or customers for the Technology or the Product (s). 4.0 PAYMENT 4.1 License and Support Fees. Licensee shall pay to Sun the fees set forth in Exhibit C within thirty (30) days from the Effective Date of this Agreement. Thereafter, and for the term of the Agreement, Licensee shall pay the annual support and Upgrade Fees on or before the anniversary of the Effective Date. 4.2 Royalty Payments. Payment of royalties shall be made quarterly, shall be due thirty (30) days following the end of the calendar quarter to which they relate and shall be submitted with a written statement documenting the basis for the royalty calculation. 4.3 Taxes. All payments required by this Agreement shall be made in United States dollars, are exclusive of taxes, and Licensee agrees to bear and be responsible for the payment of all such taxes, including, but not limited to, all sales, use, rental receipt, personal property or other taxes and their equivalents which may be levied or assessed in connection with this Agreement (excluding only taxes based on Sun's net income). To the extent Licensee is required to withhold taxes based upon Sun's income in any country, Licensee shall provide Sun with written evidence of such withholding, suitable for Sun to obtain a tax credit in the United States. 4.4 Records. Licensee shall maintain account books and records consistent with Generally Accepted Accounting Principles appropriate to Licensee's domicile, as may be in effect from time to time, sufficient to allow the correctness of the royalties required to be paid pursuant to this Agreement to be determined. 4.5 Audit Rights. Sun shall have the right to audit such accounts upon reasonable prior notice using an independent auditor of Sun's .choice (the "Auditor"). The Auditor shall be bound to keep confidential the details of the business affairs of Licensee and to limit disclosure of the results of any audit to the sufficiency of the accounts and the amount, if any, of a payment adjustment that should be made. Such audits shall not occur more than once each year (unless discrepancies are discovered in excess of the five percent (5%) threshold set forth in Section 4.6, in which case two consecutive quarters per year may be audited). Except as set forth in Section 4.6 below, Sun shall bear all costs and expenses associated with the exercise of its rights to audit. 4.6 Payment Errors. In the event that any errors in payments shall be determined, such errors shall be corrected by appropriate adjustment in payment for the quarterly period during which the error is discovered. In the event of an underpayment of more than five percent (5%) of the proper amount owed, upon such underpayment being properly determined by the Auditor, Licensee shall 6
reimburse Sun the amount of said underpayment and all reasonable costs and expenses associated with the exercise of its rights to audit, and interest on the overdue amount at the maximum allowable interest rate from the date of accrual of such obligation. 7
****CONFIDENTIAL TREATMENT REQUESTED 5.0 ADDITIONAL AGREEMENT OF PARTIES 5.1 Notice of Breach or Infringement. Each party shall notify the other immediately in writing when it becomes aware of any breach or violation of the terms of this Agreement, or when Licensee becomes aware of any potential or actual infringement by a third party of the Technology or Sun's intellectual property rights therein. 6.0 **** 7.0 CONFIDENTIAL INFORMATION 7.1 Confidential Information. For the purposes of this Agreement, "Confidential Information" means the Technology, Tools, Documentation and that information which relates to (i) either party's hardware or software, (ii) the customer lists, business plans and related information of either party, and (iii) any other technical or business information of the parties, including the terms and conditions of this Agreement and the Trademark License. In all cases, information which a party wishes to be treated as "Confidential Information" shall be marked as "confidential" or "proprietary" (or with words of similar import) in writing by the disclosing party on any tangible manifestation of the information transmitted in connection with the disclosure, or, if disclosed orally, designated as "confidential" or "proprietary" (or with words of similar import) at the time of disclosure. Sun has no obligation of confidentiality to Licensee with respect to Bug Fixes, modifications to the Shared part, or the specifications for any Licensee Open Class. 7.2 Preservation of Confidentiality. The parties agree that all disclosures of Confidential Information (as defined under Section 7.1 above) shall be governed by and treated in accordance with the terms of the Confidential Disclosure Agreement (the "CDA") attached hereto as Exhibit B and incorporated herein by reference, modified as follows: (a) the definition of "Confidential Information" shall be as set forth in Section 7.1 above notwithstanding any definition provided in the CDA; (b) the use of Confidential Information shall be limited to the scope of this Agreement; (c) the obligations of confidentiality expressed in the CDA shall extend three (3) years from the date of disclosure, except with respect to Sun Source Code which shall be held confidential in perpetuity; and (d) the CDA shall remain in effect for the term of this Agreement. 8.0 **** 8
****CONFIDENTIAL TREATMENT REQUESTED 8.2 **** 8.3 **** 8.4 **** 8.5 **** 9.0 **** 9
10.0 TERM AND TERMINATION 10.1 Term. The Term of this Agreement shall begin on the Effective Date and shall continue for a period of five (5) years, or until terminated as provided below. Each year for five (5) consecutive years following expiration of the initial five (5) year term, at Licensee's sole option, Licensee may extend the Term of this Agreement for one (1) additional year. Licensee shall indicate its intent to extend the Agreement by written notice to Sun at least thirty (30) days prior to the expiration of the preceding Term. Termination is permitted either for breach of this Agreement, upon thirty (30) days written notice to the other party and an opportunity to cure within such thirty (30) day period, or upon any action by Licensee alleging that use or distribution of the Technology by Sun or any of Sun's licensees of the Technology, infringes a patent of Licensee. 10.2 Effect of Expiration. Upon expiration of this Agreement, Sun shall retain use, under the terms of this Agreement, of the rights received hereunder, and Licensee shall be authorized to: (i) distribute Product(s) containing the version of the Technology incorporated therein at the time of expiration, subject to Licensee's continued compliance with this Agreement including the Java Test Suites current at the time of expiration, and payment of royalties, and (ii) retain one (1) copy of the Source Code to support customers having copies of Product(s) distributed by Licensee prior to the expiration hereof. All other rights of Licensee shall terminate upon such expiration. 10.3 Effect of Termination. In the event of termination of this Agreement by Sun in accordance with Section 10.1 above, Licensee shall promptly: (i) return to Sun all copies of the Technology, Documentation, and other Confidential Information of Sun (collectively "Sun Property") in Licensee's possession or control; or (ii) permanently destroy or disable all copies of the Sun Property in Licensee's possession or control, except as specifically permitted in writing by Sun; and (iii) provide Sun with a written statement certifying that Licensee has complied with the foregoing obligations. All rights and licenses granted to Licensee shall terminate upon such termination. 10.4 No Liability for Expiration or Lawful Termination. Neither party shall have the right to recover damages or to indemnification of any nature, whether by way of lost profits, expenditures for promotion, payment for goodwill or otherwise made in connection with the business contemplated by this Agreement, due to the expiration or permitted or lawful termination of this Agreement. EACH PARTY WAIVES AND RELEASES THE OTHER FROM ANY CLAIM TO COMPENSATION OR INDEMNITY FOR TERMINATION OF THE BUSINESS RELATIONSHIP UNLESS TERMINATION IS IN MATERIAL BREACH OF THIS AGREEMENT. 10.5 No Waiver. The failure of either party to enforce any provision of this Agreement shall not be deemed a waiver of that provision. The rights of Sun under this Section 10.0 are in addition to any other rights and remedies permitted by law or under this Agreement. 10.6 Survival. The parties' rights and obligations under Sections 2.0, 4.0, 5.2, 7.0, 8.0, 9.0, 10.0, and 11.0 shall survive expiration or termination of this Agreement, except in the event of termination by Sun under Section 10.1, in which case Licensee's rights under Section 2.0 shall not survive. 10.7 Irreparable Harm. The parties acknowledge that breach of Sections 2.0, 5.2, 7.0, 9.2, 11.4 and 11.7 would cause irreparable harm, the extent of which would be difficult to ascertain. Accordingly, they agree that, in addition to any other legal remedies to which a non-breaching party might be entitled, such party shall be entitled to obtain immediate injunctive relief in the event of a breach of the provisions of such Sections. 11.0 MISCELLANEOUS 11.1 Notices. All written notices required by this Agreement must be delivered in person or by means evidenced by a delivery receipt and will be effective upon receipt by the persons at the addresses specified below. 10
Sun Licensee Sun Microsystems, Inc. 901 San Antonio Road Palo Alto, California 94303 Attn.: Java Software Division Vice President, Sales cc: Java Software Division Legal Department 11.2 Marketing and Press Announcements. Licensee's initial press announcement concerning execution of this Agreement must be reviewed by Sun prior to its release. Following release by Licensee of the initial press release, Licensee hereby authorizes Sun to include Licensee in a published list of licensees of the Technology. Similarly, following release by Licensee of the initial press release Sun shall also be authorized to use Licensee's name in advertising, marketing collateral, and customer success stories prepared by or on behalf of Sun for the Technology, subject to prior approval by Licensee, such approval not to be unreasonably withheld or delayed. 11.3 Partial Invalidity. If any of the above provisions are held to be in violation of applicable law, void, or unenforceable in any jurisdiction, then such provisions are herewith waived or amended to the extent necessary for the License to be otherwise enforceable in such jurisdiction. However, if in Sun's opinion deletion or amendment of any provisions of the License by operation of this paragraph unreasonably compromises the rights or increase the liabilities of Sun or its licensors, Sun reserves the right to terminate the License. 11.4 U.S. Government Restricted Rights. If Licensee is licensing Product or accompanying documentation to or on behalf of the U.S. Government, it shall be made subject to "Restricted Rights", as that term is defined in the Federal Acquisition Regulations ("FARs") in paragraph 52.227-19(c)(2), or its equivalent paragraph in the DOD Supplement to the FARs. Contractor/Manufacturer is: Sun Microsystems Inc., 901 San Antonio Road, Palo Alto, California 94303. 11.5 Language. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions of this Agreement in any other language shall be for accommodation only and shall not be binding on the parties to this Agreement. All communications and notices made or given pursuant to this Agreement, and all documentation and support to be provided, unless otherwise noted, shall be in the English language. 11.6 Governing Law. This Agreement is made under and shall be governed by and construed under the laws of the State of California, regardless of its choice of laws provisions. 11.7 Compliance with Laws. The Technology and Documentation, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain such licenses to export, re-export or import the Technology, Documentation or Product(s) as may be required after delivery to Licensee. Licensee shall make reasonable efforts to notify and inform its employees having access to the Technology of Licensee's obligation to comply with the requirements stated in this Section. 11.8 Disclaimer of Agency. The relationship created hereby is that of licensor and licensee and the parties hereby acknowledge and agree that nothing herein shall be deemed to constitute Licensee as a franchisee of Sun. Licensee hereby waives the benefit of any state or federal statutes dealing with the establishment and regulation of franchises. 11.9 Delivery. As soon as practicable after the Effective Date, Sun shall deliver to Licensee one (1) copy of each of the deliverables set forth in Exhibit C. Licensee acknowledges that certain of the deliverables are in various stages of completion and agrees to accept the deliverables as and to the extent completed as of the date of delivery and "AS IS." In the event any deliverable is already in the possession or custody of Licensee, such item (s) shall, to the extent used in connection with 11
the rights granted in Section 2.0 above, be subject to the terms of this Agreement, notwithstanding any preexisting agreement or understanding between Licensee and Sun with respect to such items. 11.10 Assignment and Change in Control. This Agreement may not be assigned or transferred by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed, except that Sun may assign or transfer this Agreement to a majority-owned subsidiary. 11.11 Construction. This Agreement has been negotiated by Sun and Licensee and by their respective counsel. This Agreement will be fairly interpreted in accordance with its terms and without any strict construction in favor of or against either party. 11.12 Force Majeure. Except for the obligation to pay money, neither party shall be liable to the other party for non-performance of this Agreement, if the non-performance is caused by events or conditions beyond that party's control and the party gives prompt notice under Section 11.1 and makes all reasonable efforts to perform. 11.3 Exhibits. The following are included herein by reference as integral parts of this Agreement:
. . . . Exhibit Exhibit Exhibit Exhibit A B C D Document Type Definition Confidential Disclosure Agreement Technology Specific Terms and Conditions Trademark License
To the extent the terms and conditions of Exhibit C are contrary to the terms and conditions of this Agreement, the terms and conditions of the Exhibit C shall govern. 11.14 Section References. Any reference contained herein to a section of this Agreement shall be meant to refer to all subsections of the section. 11.15 No Competitive Restrictions. The parties agree that nothing in this Agreement is intended to prohibit Licensee from independently developing or acquiring technology that is the same as or similar to the Technology, provided that Licensee does not do so in breach of Exhibit B to this Agreement. 11.16 Complete Understanding. This Agreement and the Exhibits hereto constitute and express the final, complete and exclusive agreement and understanding between the parties with respect to its subject matter and supersede all previous communications, representations or agreements, whether written or oral, with respect to the subject matter hereof. No terms of any purchase order or similar document issued by Licensee shall be deemed to add to, delete or modify the terms and conditions of this Agreement. This Agreement may not be modified, amended, rescinded, canceled or waived, in whole or part, except by a written instrument signed by the parties. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives.
By: /s/ Alan Baratz -------------------------------Name: Alan Baratz -----------------------------(Print or Type) Title: President, Java Software ----------------------------Date: 12/11/98 ------------------------------
By: /s/ Stephan Schambach ------------------------Name: STEPHAN SCHAMBACH ----------------------(Print or Type) Title: GESCH A FTSFUHRER ---------------------Date: December 2 1998 -----------------------
EXHIBIT A DOCUMENT TYPE DEFINITION In order to ensure interoperability between all Java compliant browsers, Sun needs to define the exact notation of applets in HTML documents. The format of the APPLET tag shall be implementation language independent and SGML compliant. SGML compliance is important if the APPLET tag is to be accepted as part of the HTML standard in the future. Example: [applet codebase="http://java.sun.com/people/avh/classes" code="Bounceltem.java" width=400 height=300] [/applet] The applet tag has the following attributes: CODEBASE The base url of the applet. The applet's code is located relative to this URL. If this attribute is not specified, it defaults to the document's URL. CODE The file in which the applet is located. This file is relative to base url of the applet, It cannot be absolute. ALT Alternate text which can be displayed by text only browsers. NAME The symbolic name of the applet. This name can be used by applets in the same page to locate each other.
WIDTH pixels. HEIGHT in pixels. ALIGN VSPACE HSPACE Required attribute which specifies the initial width of the applet in Required attribute which specifies the initial height of the applet The alignment of the applet, similar to the img tag. The vertical space around the applet, similar to the img tag. The horizontal space around the applet, similar to the img tag.
Note that the position of the applet in the page is determined by the width, height, align, vspace and hspace attributes just like the img tag. Applets can access the above attributes using the getParameter() method call defined in the Applet class. All attribute/parameter names are automatically folded to lower case. Applets that require parameters in addition to the predefined ones need to use the param tag. It is unfortunately not legal in SGML for a tag to have an arbitrary list of attributes. That is why additional applet parameters explicitly using the PARAM tag have to be named. For example: [applet code="DateItem.class" alt="The Date" width=200 height=40] [param name="speaker" value="avh"] [param name="translator" value="DutchTime"] [/applet] In addition to the ALT tag, Licensee can include additional text and markup before the applet end tag. Java compliant browsers will ignore this text, but browsers that do not understand the applet tag will display it instead of the applet. For example: [applet codebase-classes code=lmageLoop.class width=100 height=100] [param name=imgs value="images/duke"] 13
If Licensee were using a Java enabled browser, Licensee would see an animation instead of this static image. [p] [img src=images/duke/T1.gif"] [/applet] Below is the formal SGML DTD for the APPLET and PARAM tags. [!ELEMENT APPLET - - (PARAM*, (%text;)*)] [!ATTLIST APPLET CODEBASE CDATA #IMPLIED-- code base -CODE CDATA #REQUIRED-- code file -- ALT CDATA #IMPLIED-- alternative string -- NAME CDATA #IMPLIED-- the applet name -HEIGHT NUMBER #REQUIRED ALIGN (leftlrightltopltexttoplmiddlel absmiddlelbaselinelbottomlabsbottom) baseline VSPACE NUMBER #IMPLIED HSPACE NUMBER #IMPLIED ] [!ELEMENT PARAM - O EMPTY] [!ATTLIST PARAM NAME NAME #REQUIRED-- The name of the parameter-- VALUE CDATA #IMPLIED-- The value of the parameter-- ] 14
EXHIBIT B CONFIDENTIAL DISCLOSURE AGREEMENT (to be attached) 15
****CONFIDENTIAL TREATMENT REQUESTED EXHIBIT C TECHNOLOGY SPECIFIC TERMS AND CONDITIONS The technologies licensed hereunder are those initialled by both parties below: **** 16
****CONFIDENTIAL TREATMENT REQUESTED EXHIBIT C-12 I. **** II. **** III. **** IV. **** V. **** VI. **** VII. **** VIII. **** 17
****CONFIDENTIAL TREATMENT REQUESTED 18
****CONFIDENTIAL TREATMENT REQUESTED 19
****CONFIDENTIAL TREATMENT REQUESTED IX. End User License Terms Licensee shall include the following terms and conditions, provided that Licensee shall substitute Licensee's name in place of Sun as appropriate. 1. Restrictions. Software is confidential copyrighted information of Sun and title to all copies is retained by Sun and/or its licensors. Customer shall not modify, decompile, disassemble, decrypt, extract, or otherwise reverse engineer Software. Software may not be leased, assigned, or sublicensed, in whole or in part. Software is not designed or intended for use in on-line control of aircraft, air traffic, aircraft navigation or aircraft communications; or in the design, construction, operation or maintenance of any nuclear facility. 2. Export Regulations. Software, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import Software. Software may not be downloaded, or otherwise exported or re-exported (i) into, or to a national or resident of, Cuba, Iraq, Irwin, North Korea, Libya, Sudan, Syria or any country to which the U.S. has embargoed goods; or (ii) to anyone on the US. Treasury Department's list of Specially Designated Nations or the U.S. Commerce Department's Table of Denial Orders. 3. Restricted Rights. Use, duplication or disclosure by the United States government is subject to the restrictions as set forth in the Rights in Technical Data and Computer Software Clauses in DFARS 252.227-7013(c) (1) (ii) and FAR 52.227-19(c) (2) as applicable. 4. Microline Key Classes. Include the Microline Key Classes provisions specified in Section Viii. above. 20
EXHIBIT 21.1 List of Subsidiaries
Legal Name ---------INTERSHOP Communications Ventures GmbH INTERSHOP Software Entwicklungs GmbH INTERSHOP Communications AB INTERSHOP Communications S.a.r.l. INTERSHOP Communications, Inc. INTERSHOP Communications GmbH INTERSHOP Communications (UK), Ltd. Jurisdiction of Incorporation Doing Business As (/1/) ----------------------------- ----------------------Germany Germany Sweden France United States Germany England NA NA NA NA NA NA NA
(1) Other than legal name.
EXHIBIT 23.1 Consent of Independent Public Accountants As independent public accountants, we hereby consent to the use of our reports (and to all references to our Firm) included in or made a part of this registration statement. ARTHUR ANDERSEN
Wirtshaftsprufungsgesellschaft Steuerberatungsgesellschaft mbH Nendza Wirtshaftsprufer Hamburg, Germany Bolash Certified Public Accountant
March 8, 2000