Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Cascade Systems, Inc. 86 498K
2: EX-3.1 Amended and Restated Certificate of Incorporation 33 88K
3: EX-3.2 Certificate of Amend. to Certificate of Incorp. 17 60K
4: EX-3.3 2nd Amend. and Restated Certificate of Inc. 12 45K
5: EX-3.4 Bylaws of the Registrant 17 56K
6: EX-3.5 Amended and Restated Bylaws of the Company 18 79K
7: EX-10.1 Second Amended 1994 Stock Option Plan 14 53K
8: EX-10.2 1997 Stock Incentive Plan 8 34K
9: EX-10.3 1997 Non-Employee Director Stock Option Plan 7 27K
10: EX-10.4 1997 Employee Stock Purchase Plan 7 29K
11: EX-10.5 License and Distribution Agreement 49 150K
12: EX-10.6 Source Code License Agreement 34 84K
13: EX-10.7 Lease, Dated February 27, 1996 59 177K
14: EX-10.8 Rights Agreement Dated July 25, 1994 33 122K
15: EX-10.9 Loan Agreement 36 131K
16: EX-11 Pro Forma Net Income Per Common Share 1 10K
17: EX-16 Letter, Dated September 16, 1997 2 10K
18: EX-21 Subsidiaries of the Registrant 1 7K
19: EX-23.2 Consent of Arthur Andersen LLP 1 7K
20: EX-27 Financial Data Schedule 1 10K
Exhibit 10.6
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
SOURCE CODE LICENCE AGREEMENT
between
The Licensor: MIDSYSTEMS TECHNOLOGY LIMITED
Unit 3, Vinces Road, Diss, Norfolk IP22 3HQ
and
The License: CASCADE SYSTEMS LIMITED
16 Maitland Road, Needham Market, Suffolk IP6 8SE
THIS AGREEMENT IS MADE THE 21ST DAY OF SEPTEMBER 1994 BETWEEN
(1) MidSystem Technology Limited whose registered office is at Unit 3,
Vinces Road, Diss, Norfolk ("the Licensor") and
(2) Cascade Systems International Inc. a Delaware Corporation, Cascade
Systems Ltd whose main place of business is at 16, Maitland Road,
Needham Market, Suffolk and Cascade Systems Inc whose main place of
business is at 1, Corporate Drive, Andover, Massachusetts, USA
(together known as "the Licensee").
WHEREAS:-
(a) The Licensor is engaged in creating developing and marketing production
tracking and management systems and associated software.
(b) The Licensee is engaged in the business of creating developing
licensing marketing distributing selling and supporting computer
systems.
(c) The Licensee wishes to receive a licence in perpetuity to use, develop
and distribute the System hereinafter defined and the Licensor has
agreed to grant such licence to the Licensee on the terms and
conditions of this Agreement.
IT IS AGREED AS FOLLOWS:-
1 DEFINITIONS AND INTERPRETATIONS
1.1 In this Agreement the following words and expressions shall have the
meanings set out alongside them.
"AGREEMENT" This Agreement and its Schedules.
"DISTRIBUTORS" All or any of the following appointed now or
in the future by the Licensee: OEMs,
Resellers, Value Added Resellers,
Distributors or any other form of selling or
marketing intermediary.
"INTELLECTUAL PROPERTY" All copyright patents design rights service
marks and trade marks relating to the
System.
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"LICENCE FEE" The licence fee payable under clause 4.1.
'MINIMUM SALES PERIOD" The eighteen months period from the date
when the first payment for Royalties is due
under clause 8.6.1.
"REVIEW DATE(S)" The last day of the Minimum Sales Period and
each subsequent anniversary thereof.
"ROYALTIES" The Royalties payable under clause 5 and
Schedule 2.
"RUN TIME SOFTWARE" The executable form of the MidSystem Command
Language Server and Macintosh Client
complied from the Source Code as the same
may be upgraded and amended from time to
time.
"SOURCE CODE" The Source Code for the MidSystem Command
Language Server as the same may be upgraded
and amended from time to time; and
The Source Code of the Macintosh Client.
"SYSTEM DOCUMENTATION" All manuals and other such documentation
produced by the Licensor relating to or for
use with the System, as the same may be
amended from time to time.
"THE SYSTEM" All the software collectively known as the
MidSystem Production Tracking and Management
System including Source Code Run Time
Software and Utilities as the same may be
upgraded and amended from time to time all
of which is described in Schedule 1.
"UTILITIES" The MidSystem Utilities for the installation
configuration and authorisation key
generation of the System as the same may be
upgraded and amended from time to time.
1.2 Clause headings are for convenience only and shall not affect the
construction of this Agreement.
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1.3 Words denoting the singular shall include the plural and vice versa,
and words importing a gender include every gender and reference to
persons include bodies corporate and unincorporate including
partnerships.
1.4 References to any clause, sub-clause or Schedule are (unless otherwise
stated) to a clause, sub-clause or Schedule of or to this Agreement.
2 DELIVERY
Immediately after the signing of this Agreement the Licensor shall
deliver to the Licensee the Source Code and all available supporting
documentation namely the MCL manual and installation guide.
3 GRANT OF RIGHTS
3.1 From the date hereof the Licensor grants to the Licensee on the terms
and conditions of this Agreement the worldwide non exclusive right to
use develop copy distribute and license the use of the System either as
a single produce or as an integral component of the Licensees own
products so long as such usage is limited to the supply to newspaper
publishers, commercial publishers, printers and any others whose
business is in the process of printing or publishing information.
3.2 The Licensor grants the right to the Licensee to use The MidSystem
Macintosh Client as amended from time to time free of charge.
3.3 Under no circumstances will the Licensee disclose or release to any
third party the Source Code without the prior written consent of the
Licensor.
3.4 The Licensor will not release version 3 of the System or the Macintosh
Client to any other party whatsoever before 1st October 1994.
3.5 The Licensor undertakes and will procure that its employees undertake
not to compete either directly or indirectly with the Licensee in
offering the Licensee's customers support contracts or upgraded
versions of the System without the prior written consent of the
Licensee.
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Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
4 PAYMENT OF LICENCE FEE
4.1 The Licensee shall pay to the Licensor a Licence Fee of ******** in the
following tranches:-
4.1.1 On the 10th October 1994 *******
4.1.2 Two months from the first payment date *******
4.1.3 Six months from the first payment date *******
4.2 The Licence Fee and any other sums payable by the Licensee under this
Agreement are exclusive of Value Added Tax which shall be paid by the
Licensee at the prevailing rate at the time of payment.
5 ROYALTIES
In addition to the Licence Fee the Licensee shall pay to the Licensor
the Royalties for each copy of the System sold licensed or distributed
by the Licensee or its Distributors calculated in accordance with the
provisions set out in Schedule 2 provided that no Royalties shall be
payable for demonstration copies supplied temporarily (for a period no
longer than 90 days) and in good faith to customers for evaluation
purposes and provided further that Royalties shall only be paid once
for each copy of the System.
6 PROPRIETARY RIGHTS
6.1 Save as mentioned in clauses 6.5 and 6.6 the Intellectual Property
shall remain vested wholly in the Licensor and the Licensee
acknowledges that it has no rights whatsoever in respect of the System
save for those expressly granted to it by this Agreement.
6.2 The Licensee undertakes to the Licensor not to use the System in breach
of the Intellectual Property or in violation of any of the Licensors
trade secrets.
6.3 The Licensee will add the following statement in reasonably legible
letters on the banner screen only of the user interfaces of the
products that contain any of the System that the Licensee supplies:
"Using software licensed from MidSystem Technology Limited".
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6.4 The obligations set out in this clause shall remain in force at all
times during the continuance of this Agreement and after termination of
the Agreement (howsoever caused).
6.5 All intellectual property in any supplements to, enhancements of and
developments to the System developed by the Licensee shall vest
exclusively in the Licensee.
6.6 If the Licensor is placed into liquidation, receivership or
administration the Intellectual Property shall vest in the Licensee for
a consideration to be agreed between the Licensee and the liquidator,
receiver or administrator or failing agreement within 28 days of the
order for liquidation, receivership or administration by an arbitrator
acting as an expert. Such arbitrator shall be appointed by agreement by
the parties failing which on the application of either party by the
President for the time being of the Institute of Chartered Accountants.
Costs arising on the arbitration shall be at the discretion of the
arbitrator.
7 PROTECTION OF PROPRIETARY AND CONFIDENTIAL INFORMATION
7.1 Both the Licensor and the Licensee hereby acknowledge and agree that
the System and System Documentation ("Confidential Information") are
highly confidential and are to be used solely as authorised by this
Agreement and the Licensee undertakes that at all times during the
continuance of this Agreement and after its termination (howsoever
caused) it shall procure that its employees and agents shall keep all
Confidential Information secret and not disclose any of it to any third
party other than in accordance with this Agreement save that the
Licensee in the ordinary course of business may pass to Distributors
such part of the Confidential Information as may be necessary to enable
the Distributors to utilise the System provided that such Distributors
shall enter into an agreement to maintain the confidentiality on terms
no less onerous than this clause.
7.2 The Licensor hereby acknowledges and agrees that the programs relating
to the Licensees products and all information provided in connection
with them ("the Licensees Confidential Information") are highly
confidential and are to be used solely as authorised by this Agreement
and the Licensor undertakes that at all times during the continuance of
this Agreement and after its termination (howsoever caused) it shall
procure that its employees and agents shall keep all the Licensees
Confidential Information secret and not disclose any of it to any third
party other than in accordance with this Agreement.
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7.3 Both the Licensor and the Licensee shall effect and maintain all
reasonable security measures to safeguard all Confidential Information
and the Licensees Confidential Information and prevent access to or use
of it by any unauthorised source or for any purpose whatsoever other
than the fulfillment of this Agreement.
8 RECORDS REPORTING AND PAYMENT
8.1 The Licensee shall keep full and accurate records of all agreements
relating to copies of the System or part thereof and such records shall
include sufficient information to enable the Royalties to be determined
and to enable the identity of each end user thereof and the whereabouts
of all copies of the System to be established.
8.2
8.2.1 Subject to clause 8.3, the Licensee shall make such
records available for inspection by the Licensor or
its representatives at any reasonable time during
normal business hours so that the Licensor may verify
that the Licensee is fulfilling its obligations under
this Agreement.
8.2.2 Subject to clause 8.3 the Licensee hereby authorises
the Licensor entirely at the Licensor's expense to
obtain from the Licensee's auditor at the time of the
Licensee's annual audit confirmation that the
Licensee has complied with Clause 8.1 hereof provided
that the Licensee shall be entitled to any reports
prepared by the said auditors to the Licensor in this
respect.
8.2.3 Should any discrepancy in the records by found the
Licensee will provide to the Licensor copies of any
such discrepancy. The Licensee shall if reasonably
necessary amend its records so as to comply with this
Agreement.
8.3 The Licensor shall keep in strict confidence all confidential
information obtained from such reporting or inspections and under no
circumstances shall use such confidential information for any purpose
other than the verification and calculation of the Royalties due to the
Licensor.
8.4 By 30th September 1994 and thereafter by the last business day of each
subsequent calendar month the Licensee shall render to the Licensor a
statement ("Royalty Report") certified by an authorised representative
of the Licensee setting out in respect of the immediately preceding
calendar month the following information strictly upon the condition
that this information is kept confidential by the Licensor:-
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Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
8.4.1 The total number of installations of the System or
part thereof supplied by the Licensee directly to end
users.
8.4.2 The total number of copies of the System or part
thereof supplied by each of the Licensees
Distributors to end users, with name and address of
each Distributor.
8.4.3 The name and address of each end user and
installation site supplied by the Licensee directly.
8.5 During the Minimum Sales Period services provided by the Licensor to
the Licensee in addition to those expressly included in this Agreement
shall be charged at the rate of ***** per day plus reasonable expenses
wholly and exclusively relating to the provision of such services.
8.6 The Licensee shall pay:-
8.6.1 All invoices relating to Royalties within ten days of
the date of invoice.
8.6.2 All other invoices within thirty days of the date of
invoice.
8.7 If any sum date under this Agreement is not paid on the due date or if
the Royalty Report for any month remains undelivered 2 working days
after notification of it being overdue the Licensor may (without
prejudice to any other rights and remedies available to it) charge
interest on any outstanding sums from the date payment became due to
the date of actual payment at an annual rate of 3% above the base rate
for the time being fixed by Lloyds Bank plc.
8.8 During the Minimum Sales Period the Licensee shall pay to the Licensor
each month in accordance with clause 8.4 not less than ***** in
Royalties and for services irrespective of the number of products
actually supplied by the Licensee ("Guaranteed Monthly Payments").
8.9 If the Royalties calculated on products actually sold by the Licensee
and the fees for the services actually rendered in any month ("Actual
Payments") total less than the Guaranteed Monthly Payments the balance
between the Actual Payments and the Guaranteed Monthly Payments shall
be carried forward as a
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credit against Actual Payments in excess of the Guaranteed Monthly
Payments payable in the succeeding months provided that if at the end
of the Minimum Sales Period the Licensee shall have accumulated any
credit under this clause the Licensee shall use the value of such
credit to purchase base licences or user licences in any proportion
that it chooses, at the prices set out in Schedule 2.
8.10
8.10.1 On each of the Review Dates the level of all fees and
prices payable from time to time thereafter under
this Agreement shall be reviewed taking into account
the then prevailing market conditions. Any such new
pricing will be operative from the day immediately
following the Review Date.
8.10.2 At any Review Date an increase in the pricing will be
limited to such sum as bears the same proportion to
the then existing fees and prices as is borne by the
figure shown in the General Index of Retail Prices
for the month of the Review Date to such figure in
the month of the previous Review Date (for the
avoidance of doubt the date hereof shall be deemed
for the purposes of this clause only to be the first
Review Date).
9 WARRANTIES AND LIMITATION ON LIABILITY
9.1 The Licensor and the Licensee hereby warrant to each other that they
have the power to enter into and perform this Agreement and that as the
date of this Agreement there are no outstanding encumbrances
obligations or agreements which relate to them which are inconsistent
with this Agreement.
9.2 The Licensor warrants that the title to all the Intellectual Property
is vested solely and exclusively in the Licensor and that the Licensor
is not subject to any claim by any third party in respect thereof and
that it has the unfettered right to grant the rights referred to in
clause 3.
9.3 The Licensor warrants that the System will operate efficiently in
accordance with the specifications provided to the Licensee as defined
in the First Schedule.
9.4 The Licensor warrants that it will provide its services with reasonable
care and skill to the Licensee or to the Licensees customer.
9.5 Save as provided by statute the Licensor shall in no circumstances be
liable to the Licensee or any end user for damages in respect of loss
of business loss of profits loss of data interruption of business or
any other consequential loss whether such liability would arise out of
alleged breach of warranty breach of
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this Agreement delay negligence or otherwise or from any representation
made to any end user or other person by the Licensee.
9.6 The Licensee hereby acknowledges that the System is a complex set of
computer programs and that inevitably there will be errors and
omissions in the System and/or the System Documentation. Accordingly
the System and the System Documentation are licensed on these terms and
save as expressly provided in this Agreement no warranty condition or
representation either express or implied (by statute or otherwise) is
given by the Licensor as to either the design quality merchantability
or fitness for a particular purpose of the System.
9.7 The Licensors liability for damages in respect of this Agreement and in
particular the warranties contained hereunder shall save as provided
otherwise by statute be limited to the total amount of Licence Fees and
Royalties actually paid by the Licensee to the Licensor under this
Agreement.
10 INTELLECTUAL PROPERTY INDEMNITY
10.1 The Licensor will indemnify and hold harmless the Licensee against all
damages (including costs) that may be awarded or agreed to be paid to
any third party in respect of any claim or action that the normal
operation process or use of the System and/or System Documentation by
the Licensee or the Licensee's customers represents an infringement
against any third party's Intellectual Property ("Intellectual Property
Infringement") provided that the Licensee:-
10.1.1 Gives notice to the Licensor of any Intellectual
Property Infringement forthwith upon becoming aware
of the same;
10.1.2 Gives the Licensor the sole conduct of the defence of
any claim or action in respect to the Intellectual
Property Infringement and does not at any time admit
liability or otherwise attempt to settle or
compromise the said claim or action except upon the
express instructions of the Licensor; and
10.1.3 Acts in accordance with the reasonable instructions
of the Licensor and gives to the Licensor such
assistance as it shall reasonably require in respect
of the conduct of the claim or action including
without prejudice to the generality of the foregoing
the filing of all pleadings and other court process
and the provision of all relevant documents.
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10.2 The Licensor shall reimburse the Licensee its reasonable costs incurred
in compliance with the provisions of clause 10.1.
10.3 The Licensor shall have no liability to the Licensee in respect of an
Intellectual Property Infringement if the same arises out of or in
connection with any breach of the Licensees obligations under this
Agreement.
10.4 In the event of an Intellectual Property Infringement the Licensor
shall be entitled at its own expense and option either to:-
10.4.1 Procure the right for the Licensee and/or the
Licensee's customer to continue using the System
and/or the System Documentation; or
10.4.2 Make such alterations modifications or adjustments to
the System and/or the System Documentation so that
they become non-infringing without incurring a
material diminution in the performance or function
thereof; or
10.4.3 Replace the System and/or Documentation with
non-infringing substitutes provided that such
substitutes do not entail material diminution in
performance or function thereof.
10.5 If the Licensor in its reasonable judgment is not able to exercise any
of the options set out above within 90 days of the date it received
notice of the Intellectual Property Infringement the Licensee shall
without prejudice to any other rights or remedies it may have hereunder
or at law be entitled to terminate this Agreement whereupon all
payments made by the Licensee to the Licensor for the Licence Fees and
Royalties shall become immediately repayable by the Licensor to the
Licensee.
11 UPDATES AND MAINTENANCE
11.1 The Licensor shall use its best endeavors to:
11.1.1 continue as before actively to correct errors develop
and upgrade the System (not including the Macintosh
Client) in order to maintain a competitive level of
performance and functionally during the Minimum Sales
Period; and
11.1.2 continue as before actively to correct errors develop
and upgrade the System (not including the Macintosh
Client) in order to maintain a competitive level of
performance and functionality after the Minimum Sales
Period for which a separate support fee
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Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
will be agreed by the Licensor and the Licensee at
the end of the Minimum Sales Period using ***** per
month as a guide.
11.1.3 continue as before actively to correct errors in the
Macintosh Client and when they are so corrected to
send this Licensee as soon as available the further
copy of the source code of the Macintosh Client so
corrected.
11.2 During the Minimum Sales Period the Licensor shall supply regularly to
the Licensee updates of the System in source code form (not including
the Macintosh Client) and any appropriate training, support and
documentation as soon as reasonably practicable free of charge.
11.3 During the Minimum Sales Period the Licensor shall provide to the
Licensee:-
11.3.1 on the telephone error correction services support
and advice (but excluding development support) in
respect of the System (not including the Macintosh
Client) at a monthly support fee of *****; and
11.3.2 internal development schedules and planned delivery
and release dates.
11.4 During the Minimum Sales Period the Licensor shall provide to the
Licensee all updates of the Macintosh Client Run Time Software
including a native Power Macintosh version if and when developed.
12 TRAINING AND TRADESHOW SUPPORT
12.1 The Licensor will at the reasonable request of the Licensee provide
training and/or tradeshow support at the agreed level of expertise
directly to the Licensee's customers on behalf of the Licensee and will
invoice the Licensee therefor in accordance with the terms of this
Agreement or as otherwise agreed between the parties.
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Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
12.2 The Licensor will provide free of charge to the Licensee eight working
man days training and support at the agreed level of expertise during
the first three months after the date hereof. Thereafter all further
training and support services other than those contained in clause 11.2
hereto shall be provided on the terms set out in this Agreement.
13 LICENSORS OTHER PRODUCTS
The Licensor undertakes to supply to the Licensee during the Minimum
Sales Period the following products at the following prices:-
13.1 MidSystem Spooler ***** per Spooler
13.2 MidSystem Autosize Quark Extension ***** per installation
13.3 SyClone ***** per installation
14 TERMINATION
14.1 If either party is in material breach of any term or condition of this
Agreement the non-breaching party may at its discretion at any time
whilst such breach is continuing serve written on the other party
specifying the breach. The breaching party shall then have 30 days
within which to remedy the breach and if at the expiry of such 30 day
period the breach has not been remedied the non-breaching party may
terminate this Agreement by notice served on the other party.
14.2 Should the Licensee directly install or supply copies of the system, or
having been fully notified by any Distributor fail to include such
copies in the Royalty Report within 90 days of supply or installation,
then payment for all royalties becomes due within 10 working days of
notice of the breach detailing the unreported system, failing which
this Agreement may be terminated by the Licensor by notice. Should more
than 3 such failures to report occur in any 12 month period then the
Licensor will be entitled to terminate this Agreement by notice.
14.3 Either party may terminate this Agreement forthwith by notice served on
the other if the other is placed into liquidation, receivership or
administration.
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14.4 Termination for any reason shall be without prejudice to any other
rights and remedies available to the parties and to any payments
accrued due.
15 FORCE MAJEURE
15.1 Neither party shall be liable for non-performance or delays caused by
acts of God, wars, riots, strikes, fires, shortages of labour or
materials, labour disputes, governmental restrictions or other
circumstances beyond its reasonable control. The affected party shall
notify the other in writing of such circumstances promptly after their
occurrence and shall use its reasonable endeavors to cure or remedy
such circumstances.
16 NOTICES
16.1 Any notices given pursuant to this Agreement shall be in writing and
shall be given by the person giving notice or by its duly authorised
representative and may be served by leaving it at or sending it by
facsimile or pre-paid recorded delivery or third party courier service
to the following address (or such other place in the United Kingdom as
either of the parties from time to time may notify to the other) as
follows:-
To the Licensor at 14 Prebendal Court, Oxford, Aylesbury HB19 3EY
marked for the attention of Chris Hodges.
To the Licensee at 16 Maitland Road, Needham Market, Suffolk IP6 8SE
marked for the attention of Paul Baker.
Any such notice so served shall be deemed to have been received at the
following times (if such is a business day in the place of receipt, if
such is not the case the next business day):-
16.1.1 In the case of facsimile - 12 hours after receipt of
answerback
16.1.2 In the case of third party courier service or in the
case of note or reference of the address on signature
for receipt
16.1.3 In the case of recorded delivery on the date of
delivery.
17 LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with
the English law and each of the parties hereto agrees to submit to the
exclusive jurisdiction of the English Courts.
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18 ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit of both
of the parties and their respective successors and permitted assigns,
and this Agreement shall be assignable by either party in whole or in
part at its sole discretion upon giving written notice to the other
party and provided that the other party shall have given prior written
consent which consent shall not be unreasonably refused (for the
avoidance of doubt the Licensor shall be deemed to have consented to
the assignment by the Licensee to any subsidiary of the Licensee as
defined under Section 736 of the Companies Act 1985 or any statutory
amendment thereof).
19 COMPLETE AGREEMENT
This Agreement constitutes the entire Agreement between the parties in
respect of the System. No modification in this Agreement shall be
effective unless it is in writing and executed by both the parties.
Save as mentioned in Schedule 2 Clause 4 this Agreement supersedes any
and all other agreements between the parties whether written or oral
with respect to the System.
20 MISCELLANEOUS
20.1 In the event that any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or
unenforceable, such unenforceability shall not affect any other
provisions thereof and this Agreement shall be construed as if such
invalid illegal or unenforceable provisions had never been contained
herein.
20.2 No relaxation, forbearance, delay or indulgence by either party in
enforcing any of the terms and conditions of this Agreement against the
other or the granting of time by either party to the other shall
prejudice affect or restrict the rights and powers of the parties
hereunder nor shall any waiver by either party of any breach of this
Agreement operate as a waiver of any subsequent or continuing breach of
it.
20.3 In consideration of the presents the Licensor hereby undertakes to the
Licensee that whilst this Agreement remains in force between them the
Licensor has not entered nor shall enter into any contractual
relationship with a third party in relation to the use, development
and/or distribution of the System or any substantial elements of the
System upon terms which are more favourable to such third party than
those contained herein. Should the Licensor wish to enter into any such
agreement it may do so with the prior written agreement of the Licensee
who shall then have the right to incorporate those more favourable
terms in this Agreement and in such circumstances those more
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favourable terms shall be deemed to have been incorporated from the
date hereof.
20.4 No restrictions in this Agreement by virtue of which registration under
the Restrictive Trade Practices Act 1976 is required shall take effect
until the day after that on which relevant particulars have been
furnished to the Director General of Fair Trading pursuant to that Act.
As witness the hands of duly authorised representatives of the parties the day
and year first before written.
Signed for and on behalf of Licensor:
Name: /s/ Martin Collis
-------------------------------------
Title: Director
------------------------------------
Signed for and on behalf of Licensee:
Name: /s/ Paul Baker
-------------------------------------
Title: Managing Director
-----------------------------------
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SCHEDULE 1 - THE SYSTEM
20/8/94 MidSystem Functional OverView
MIDSYSTEM
Production Tracking and Control System
Functional Overview
MidSystem is a production control and management system for electronic
composition. By means of industry standard components and an open systems
architecture, MidSystem enables the full integration of all aspects of
electronic document production. Utilising a powerful database, MidSystem tracks
all of the elements of a publication from creation to completion and allows the
user to ensure that work is completed accurately and to the necessary deadlines.
Storage, archival and retrieval functions make it possible to easily and quickly
find and modify previous work, while production monitoring facilities enable the
necessary control to maintain the maximum efficiency within the composition
process.
Text and graphics integration are managed by MidSystem to optimise system
performance and control output. Electronic composition and graphics manipulation
are carried out on any standard hardware platforms using the majority of
suitable text and graphics packages. Output is available in either proof or
final form to any Postscript Laserprinters and Imagesetters. In addition,
MidSystem may be linked to page dummy and layout applications to automate parts
of the composition tasks.
The open systems philosophy adopted by MidSystem means that interfacing to new
or existing equipment is relatively simple and is "seamless". In particular,
data and control information can be accepted from Front Systems (Ad booking,
Planning and Editorial) or other production applications to link the composition
process to the commercial and management aspects of production. The problems of
file management on a composition system are removed by MidSystem and double
keying of text and information can be eliminated.
BASE PLATFORM
The MidSystem database and main application software currently support the full
range of Sun SparcServer and SparcStation computers. In the future, MidSystem
will be available for a wider range of Unix platforms. Redundancy in case of
hardware failure may be achieved by disk mirroring or adding a second Sun
SparcStation to shadow the main unit.
20/8/94 MidSystem Functional OverView
DISK STORAGE
Disk Storage is also determined by the type and volume of work. The workflow is
important when deciding disk capacities as the length of time that the data must
remain available online will considerably affect the disk storage needs. The Sun
range support SCSI, SMD and IPI disk technology. Online storage may be increased
as required (subject to the model on Sun SparcServer) Midsystem provides for
storage of files across various NFS fileservers on a network (subject to
suitable network connections). This allows storage of the data files on
different platforms and new or existing fileservers.
OFFLINE STORAGE
Offline storage for Archive will normally be to HP or IDEoptical Jukebox. A
K-Par Jukebox driver is required to interface the Jukebox to the MidSystem
Server.
WORKSTATIONS
The user interface for Midsystem is presented on each workstation to allow the
operator access to all necessary functions and information from a single seat.
This user interface may be replaced by a vendor's own interface where
appropriate. MidSystem currently supports the Apple Macintosh workstation.
Support of IBM compatible PCs and Unix-based Clients is available. A MidSystem
application is run on each workstation to enable data transfer to and from
MidSystem and to provide the local user interface.
NETWORKING
Connection of MidSystem with workstations is normally via TCPIP Ethernet.
Depending upon the size and geography of the system, this may be thinwire or
thickwire. Where a lower data rate is tolerable, LocalTalk cabling may be used
and "bridged" onto the Ethernet with a Kienetics Fastpath or similar.
Connection to other external systems, for example a front end system, is
dependent upon the interfaces supported by that system. This may be Ethernet or
serial line.
OPERATING SYSTEM
MidSystem runs under Unix (currently SunOS 4.1.3/Solaris 1.1) and is designed to
be easily ported to other implementations of Unix on various hardware platforms.
Solaris 2 support is available from October 1994.
DATABASE
The database employed by MidSystem is Sybase. This is a new generation of
relational database which was originally chosen for it's advanced client/server
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
20/8/94 MidSystem Functional OverView
architecture (providing the tools to achieve a high level of systems
integration) and high performance characteristics for this type of application.
Sybase supports the Standard Query Language. SQL.
Two Sybase components are used by MidSystem:
SQL Server
Open Client
These are software modules that provide the management and access for the
MidSystem database. The database carries all of the information regarding the
documents that are necessary for production. This includes composition details
such as borders, dimensions, colours etc., production data such as publications
and run dates plus commercial information like customer details and
classification of ads or origin and revision of stores. In addition, the
database records the location and status of all of the actual elements of the
publication. This enables MidSystem to track online and archive offline high
volumes of graphics and text, removing the problems associated with finding
missing artwork and text files or reworking expired Ads. Summaries of production
status may be called to the screen of a workstation to view the progress of a
publication at any time.
FUNCTIONALITY
MidSystem version three provides the following functions:
***
*** **************** from MidSystem. The files are ***********
****************** . The appropriate ************************
*************************************************************
********* to start. ******** may be any *********************
************************************************.
*** **************** from MidSystem. The file *******************
**************************************. The *****************
*************to start. The file may be **********************
**************.
*** **************** from MidSystem. MidSystem ******************
*************************************************************
**********.
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
20/8/94 MidSystem Functional OverView
*** ***************** to MidSystem. When finished with a file, ****
***************************************************************
**************************************************************.
*** Print ********************************************************
**************************************************************
the proof cycle. Provided only when **************************
************.
*** ************** from the *******************************.
*** ************** from the *****************************.
*** *********************** to MidSystem. ***********************
concerning the ***************** may be *********************
********. Used when *****************************************
**** of an **************************************************
******** at time of ************** must be ******************
*************************************************************
******** are always ***********************.
*** ********************************* from the system. **********
*************************************************************
*************.
*** *****************************************.
*** ************************************************ file types.
*** *************************************************************
******* of them. *******************************.
*** ******************* to protect ******************************.
*** *****************************************************.
***
*** Provides ******************************************** which
**************************************** of their work.
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
20/8/94 MidSystem Functional Overview
*** *************************************** in the system and the
*************************************************************
*** *************************************************************
*** *************************************************************
(not supplied as standard). As the **************************
is available *****************************.
***
*** ***************************** and to ************************
Examples are, ***********************************************
*** *************************************************************
*** ****************************** to the ********************* on
a Page *** of the selected Page.
*** ***************************** within the ************* Used to
************************ Ads, Customers,*********************
May be used in a *********************************************
*** ***************************************** or details of a Page.
*** ****************************** from MidSystem. May be used in a
****************** Can be ************************************
*** ********************************************** when appropriate.
*** ************************************************* when necessary.
*** ****************************************************************
*** ****************************************************************
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
20/8/94 MidSystem Functional OverView
*** ******************************************************
may be found.
*** ******************************************************
********** includes ****************
*
*** ******************************************************
that gave occurred *****************
*** ************************************************** and
related data.
*** ************************** that are used by ***********
*** *********************************** from a user defined
query. ************************************************
***
*** ****************************************** that is to be
presented in *******************************************
*** ***************************** to be applied to any field
********************************************************
*** All MidSystem functions ********************************
managers can allocate a ********************************
*** ************************************************** in the
database to provide ********************** to ***********
This is used as an **************************************
*** *********************************************************
*** *********************************************************
*** ************************************* is available to all
users of the MidSystem client.
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
20/8/94 MidSystem Functional OverView
*** *************************************************************
*** *************************************************************
*** ******************************************* within the system.
***
Each MidSystem installation is configured by the installer to match the users
needs. All aspects of the system are *** the users existing on desired
workflow. The *** set of tables within MidSystem. These define the
data *** the types *** will be known. *** loaded, the menus can be
customised. *** within MidSystem is *** it's format. This *** is a
simple to ***
*The MidSystem *** by MidSystem must be ***
*** ******************************************* within the system.
*** *************************************************************
*** ************************ that is ****************************
*** ************************* such as ***************************
*** ************************* such as ***************************
SYSTEMS INTEGRATION
MidSystem is a component of a total installation, it links to other components
of the installation to form an integrated system. MidSystem will operate with
all of the
20/8/94 MidSystem Functional OverView
popular Mac applications such as MultiAd Creator, Quark Express, Adobe
Illustrator and Adobe Photoshop.
The level of integration of each application depends upon the Macintosh system 7
support within the application. Most applications will operate with the
MidSystem as though they are one. In all cases user operations are kept to a
minimum by presenting the user with the data and information rather than waiting
for requests. The MidSystem Notification Manager and Mail facilities may be
utilised to alert users of significant events.
Much of the data and control input required by MidSystem already exists within
Front End and Commercial systems. Where this is the case, MidSystem provides a
Server (the External Systems Link or ESL) to connect the two systems and
receive/send data. MidSystem operates internally on a set of commands called the
MidSystem Command Language (MCL). These commands may also be sent via the ESL
from an external system to further automate the production control and
management process. This language allows the integration of a vendor's own
products and of customer's existing front end systems. Connections of this type
are subject to individual specification and pricing.
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
SCHEDULE 2
CALCULATION OF THE ROYALTIES
1.1 Any Production Management Product sold by the Licensee will attract
Royalties for the Licensor so long as the Licensor continues actively
as before to develop and release the Source Code to the Licensee. After
the Minimum Sales Period should the Licensor not continue actively as
before to develop and release the Source Code Royalties will not be due
if the Production Management Product sold by the Licensee includes
******* of the Source Code of the MidSystem Command Language Server.
1.2 During the Minimum Sales Period Royalty payments shall be payable in
respect of all products sold by the Licensee for Production Management
or Library Systems.
1.3 During the Minimum Sales Period Royalty payments shall be payable in
respect of all products sold by the Licensee (other than Production
Management and Library Systems) only if the products include ******* of
the Source Code of the MidSystem Command Language Server.
1.4 Subject to Clause 1.1 of Schedule 2 after the Minimum Sales Period
Royalties will only be payable in respect of products if they include
******* of the Source Code of the MidSystem Command Language Server.
2. Subject to clause 3 of Schedule 2 in all other cases where the System
or part thereof is copied the Royalties in respect thereof shall be
calculated as follows:-
2.1 For Production Management Systems
2.1.1 Base Licence fee per MCL Server *******
2.1.2 Cost per user (per installation)
1 -16 *****
17-32 *****
33-64 *****
65 and over *****
2.2 For Library Systems
2.2.1 Base Licence per MCL Server user *******
2.2.2 Cost per use (per installation)
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
1 -16 *****
17-32 *****
33-64 *****
65 and over *****
3 All Royalties payable for the sale of the System or part thereof by the
Licensee's Distributors shall be discounted by ***** and the Licensor's
invoice in respect thereof shall be adjusted accordingly.
4 Royalties due to the Licensor in respect of the current supply by the
Licensor to the Licensee of products in respect of the Licensee's
contract with National Magazines Ltd shall be calculated under the
previous agreement between the Licensor and the Licensee and not under
the terms of this Agreement. All other orders placed upon the Licensor
by the Licensee from the 1st August 1994 shall be calculated under this
Agreement as shall all future supplies by the Licensor to the Licensee
in respect of National Magazines Ltd.
5 The Parties agree that any dispute arising out of this Schedule 2 which
they cannot resolve between them shall be referred to the arbitration
of two persons (one to be nominated by each of the Parties) or their
mutually agreed umpire in accordance with the provisions of the
Arbitration Acts of 1950 to 1979 or any statutory amendment thereof.
ADDENDUM TO THE SOURCE CODE LICENCE AGREEMENT DATED 21ST SEPTEMBER 1994.
The following terms are agreed between MidSystem Technology Limited
("MidSystems") and Cascade Systems Limited ("Cascade") in respect of the
Software Licence Agreement between Cascade and Linotype-Hell Aktiengesellschaft
("Linotype-Hell").
- MidSystems and Cascade agree to deposit the Source Code for Cascade
products licensed under the above named agreement to Linotype-Hell,
which incorporate MidSystem Source Code, into Escrow under the National
Computer Centre standard Escrow Agreement.
- Royalties for systems sold to Linotype-Hell under the agreement will be
reported by Cascade to MidSystems on a QUARTERLY basis in accordance
with the terms set out in Clause 8 of the Source Code Licence Agreement
dated 21st September 1994.
- MidSystems agrees to the provision by Cascade of ten (10) free of
charge demonstration copies of the software products to Linotype-Hell.
Signed for and on behalf of Cascade Systems Limited
Name: /s/ Paul Baker
------------------------------
Title: Managing Director
-----------------------------
Date: 17 January 1995
------------------------------
Signed for and on behalf of MidSystem Technology Limited
Name: /s/ C. R. Hodges
------------------------------
Title: Managing Director
-----------------------------
Date: 18 January 1995
------------------------------
Dated 1st February, 1996
(1) MIDSYSTEM TECHNOLOGY LIMITED
(2) CASCADE SYSTEMS LIMITED
----------------------------------------------
SECOND ADDENDUM TO A SOURCE CODE LICENCE
AND DISTRIBUTION AGREEMENT
DATED 24TH SEPTEMBER 1994
----------------------------------------------
THIS SECOND ADDENDUM is made the 1st day of February 1996
BETWEEN:-
(1) MIDSYSTEM TECHNOLOGY LIMITED whose registered office is at Unit 3,
Vinces Road, Diss, Norfolk ("the Licensor"); and
(2) CASCADE SYSTEMS INTERNATIONAL INC. a Delaware Corporation, Cascade
Systems Limited whose main place of business is at 16 Maitland Road,
Needham Market, Suffolk and Cascade Systems Inc. whose main place of
business is at 1 Corporate Drive, Andover, Massachusetts, USA (together
known as "the Licensee").
WHEREAS:-
(A) The Licensor and the Licensee ("the Parties") entered into a Source
Code Licence and Distribution Agreement on 21st September 1994 ("the
Agreement").
(B) The Parties hereby wish to amend and extend certain terms of the Agreement.
NOW IT IS HEREBY AGREED as follows:-
1 This Second Addendum is supplementary to and forms part of the
Agreement.
2 Clause 1 of the Agreement ("Definitions") shall be amended as follows:-
"INSTALLATION" Installation shall be deemed complete when The System
has been delivered to the customer the software keys (temporary or
permanent) have been issued and the customer agrees that training on
The System can commence. Should any component which is NOT provided by
the Licensor cause The System to be incapable of being ready for
training to commence then Installation shall be deemed complete.
"SOURCE CODE" shall have added to it: "The Source Code of the MEAM
Software".
"THE SYSTEM" shall have added to it, at the end ". . . together with
the MEAM Software.
3 Clause 3.2 of the Agreement ("Grant of Rights") is amended as follows:-
"3.2 The Licensor grants the right to the Licensee to use, develop,
copy, distribute, license and sub-license the MidSystem
Macintosh Client as amended from time to time free of charge."
4 Clause 4 shall have a new clause 4.3 as follows:-
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
4.3 The Source Code Licence Fee for the MEAM software will be
***** (pounds sterling), already paid by the Licensee. On
signing this Addendum the Licensor will issue a credit note
against the balance due on the invoice relating the MEAM
software already issued by the Licensor to the Licensee.
5 Clause 5 of the Agreement shall be amended as follows:-
"In addition to the Licence Fee the Licensee shall pay to the Licensor
the Royalties for each copy of the System sold licensed or distributed
as part of an Installation by the Licensee or its Distributors...."
6 Clause 8.4 of the Agreement shall be deleted and replaced as follows:-
8.4 By the last business day of each calendar month the Licensee
shall render to the Licensor a statement ("Royalty Report")
certified by an authorised representative of the Licensee
setting out in respect of the immediately preceding calendar
month's INSTALLATIONS the following information strictly upon
the condition that this information is kept confidential by
the Licensor:-
8.4.1 The total number of INSTALLATIONS of the System or
part thereof supplied by the Licensee directly to end
users.
8.4.2 The total number of copies of the System or part
thereof supplied by each of the Licensees
Distributors to end users, with name and address of
each Distributor.
8.4.3 The name and address of the end user for each
INSTALLATION supplied by the Licensee directly.
8.4.4 The name and address of each end user where the
System has been delivered by the Licensee and a
software key issued but Installation is not yet
complete. These will be marked as "Pending" meaning
they will be reported for the Royalty purposes as
soon as the INSTALLATION is complete.
7 Clause 8 shall have new clauses 8.11 and 8.12 added as follows:-
8.11 Any System where the Installation has been complete for ninety
days or more will be considered nonrefundable unless it is
agreed in writing between the Licensor and the Licensee to
extend this period.
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
8.12 Full credits will be issued by the Licensor against Royalties
paid for any System previously installed but subsequently
removed if claimed by the Licensee within ninety days of the
Installation date. Extensions to this period may be agreed in
writing between the Licensor and the Licensee.
8 Clause 13 shall have a new clause 13.4 added as follows:-
13.4 The fee for MidSystem Advance Archive Module (MEAM) software
will be as follows:
For a system supplied with a CD Jukebox component *****
For a system supplied with no CED Jukebox component
in the sale *****
9 Schedule 2 of the Agreement shall have a new clause 3.1 added as
follows:-
"3.1 For Production Management Systems and Library Systems that are
sold (in whole or in part) purely as back-up for an already
existing (or as part of a current sale) Production Management
System or Library System all Royalties will be calculated as
per clauses 2.1.1, 2.2.1 and 3 above and then *******."
10 All other terms of the Agreement remain unaffected by this Second
Addendum.
AS WITNESS the parties hereto have caused this Second Addendum to be signed the
date first above written by their respective duly authorised signatories
THE LICENSOR: THE LICENSEE:
SIGNED: /s/ C.R. Hodges SIGNED: /s/ G. Frankland
------------------------- ---------------------------
Name: C.R. Hodges Name: G. Frankland
--------------------------- -----------------------------
Title: Director Title: Managing Director
-------------------------- ----------------------------
Dated 1st August, 1996
(1) MIDSYSTEM TECHNOLOGY LIMITED
(2) CASCADE SYSTEMS LIMITED
-----------------------------------------------
THIRD ADDENDUM TO A SOURCE CODE LICENCE
AND DISTRIBUTION AGREEMENT
DATED 24TH SEPTEMBER 1994
-----------------------------------------------
THIS THIRD ADDENDUM is made the 1st day of August 1996
BETWEEN:-
(1) MIDSYSTEM TECHNOLOGY LIMITED whose registered office is at Unit 3,
Vinces Road, Diss, Norfolk ("the Licensor"); and
(2) CASCADE SYSTEMS INTERNATIONAL INC. a Delaware Corporation, Cascade
Systems Limited whose main place of business is at 16 Maitland Road,
Needham Market, Suffolk and Cascade Systems Inc. whose main place of
business is at 1 Corporate Drive, Andover, Massachusetts, USA (together
known as "the Licensee").
WHEREAS:-
(A) The Licensor and the Licensee ("the Parties") entered into a Source
Code Licence and Distribution Agreement on 21st September 1994 ("the
Agreement").
(B) The Parties hereby wish to amend and extend certain terms of the
Agreement.
NOW IT IS HEREBY AGREED as follows:-
1 This THIRD Addendum is supplementary to and forms part of the
Agreement.
2 Clause 1 of the Agreement ("Definitions") shall be amended as follows:-
"SOURCE CODE" shall have added to it: "The Source Code of the SYCLONE
Software".
"THE SYSTEM" shall be amended as follows from Addendum 2 to state "...
together with the MEAM and SYCLONE Software.
3 Clause 4 shall have a new clause 4.4 as follows:-
Confidential materials omitted and filed separately
with the Securities and Exchange Commission.
Asterisks denote omissions.
4.4 The Source Code Licence Fee for the Syclone software will be
***** (pounds sterling), to be paid by the Licensee' and will
include one day "hand over" training at the Licensors'
offices.
4 Clause 13 shall have an amended clause 13.3 as follows:-
13.3 Syclone ***** per installation
The additional royalty of ***** per installation will be paid from the
effective date of this Third Addendum until such time as the Licensee
has paid to the Licensor ***** in additional fees under this clause
13.3. Thereafter the fee will be ***** per installation.
10. All other terms of the Agreement remain unaffected by this Third
Addendum.
AS WITNESS the parties hereto have caused this Third Addendum to be signed the
date first above written by their respective duly authorised signatories
THE LICENSOR: THE LICENSEE:
SIGNED: /s/ C. R. Hodges SIGNED: /s/ G. Franland
------------------------- ---------------------------
Name: C. R. Hodges Name: G. Frankland
--------------------------- -----------------------------
Title: Managing Director Title: Managing Director
-------------------------- ----------------------------
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