<DESCRIPTION>INTEL TERMINATION AGREEMENT
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EXHIBIT 10.28
AGREEMENT
This Agreement is entered into and made effective as of the 24th day of
December, 1997 (the "Effective Date"), by and between SystemSoft Corporation, a
Delaware corporation having its principal place of business at One Innovation
Drive, Natick, MA 01760 ("SystemSoft") and Intel Corporation, a Delaware
corporation having its principal place of business at 2200 Mission College
Blvd., Santa Clara, CA 95052 ("Intel"). Intel and SystemSoft may be sometimes
hereinafter be referred to as, the "Parties".
RECITALS
WHEREAS, Intel and SystemSoft entered into a Development and License
Agreement having an effective date of December 20th, 1993 and amendments thereto
dated March 30, 1994 and October 30, 1995 (collectively, the "Prior Agreement")
whereby Intel agreed to and did disclose certain technologies to SystemSoft
which were or were anticipated to be developed at Intel and which the parties
agreed that SystemSoft had the technical and market capability to proliferate in
a manner consistent with Intel's business goals, and
WHEREAS, the Parties agreed to memorialize each separate technology
license transaction by identifying the licensed technology, its specific source
and binary files, a specification for a licensed work that SystemSoft might
prepare, specific license terms and conditions applying to such licensed work,
development milestones, market penetration goals, financial terms relating to
development work and any such other terms as the Parties might deem appropriate,
and
WHEREAS, in consideration of SystemSoft's promises to develop,
distribute, pay royalties on and license to Intel certain works under the Prior
Agreement, Intel agreed to and did provide SystemSoft with NRE payments and
royalty credits amounting to Seven Million Six Hundred Thousand Dollars
($7,600,000), and
WHEREAS, SystemSoft and Intel agree and stipulate that the Prior
Agreement was subsequently amended by the parties by the execution of Eight (8)
separate license/development statements which comprise all such amendments to
the Prior Agreement as of the Effective Date of this Agreement and shall be
referred to hereinafter as the "Subsequent Amendments", and
WHEREAS, SystemSoft and Intel would now like to reach an accord with
regard to existing past due royalties amounts and future royalty obligations
owed Intel by SystemSoft under the Prior Agreement and its Subsequent Amendments
and provide satisfaction of such accord through payment to Intel of such
royalties as set forth herein.
NOW, THEREFORE, in consideration of the mutual representations,
covenants, and agreements of the parties hereinafter set forth, the parties do
hereby enter into the following accord, the complete and full satisfaction of
which shall relieve SystemSoft of any further royalty obligations to Intel with
respect to any and all royalties payable to Intel under the Prior Agreement and
its Subsequent Amendments. The Parties expressly agree that this Agreement of
accord and satisfaction shall not apply to any royalty bearing future amendment
entered into between the Parties under the terms and conditions of the Prior
Agreement.
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1. Stipulated Royalty. The Parties agree and stipulate that the total amount of
all royalties due Intel from SystemSoft under the Prior Agreement and Subsequent
Amendments shall be Four Million, Two Hundred Sixty Two Thousand, Eight Hundred
Sixteen Dollars ($4,262,816) in U.S. currency (the "Stipulated Royalty"). Upon
full and complete payment of the entire Stipulated Royalty SystemSoft shall have
no further royalty obligations to Intel of any nature under the Prior Agreement
and Subsequent Amendments, except to the extent that the Parties may enter into
any additional royalty bearing amendment under terms of the Prior Agreement
following the Effective Date of this Agreement.
2. Payment of Stipulated Royalty. SystemSoft agrees to pay Intel the Stipulated
Royalty by making the following installment payments:
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On or before December 24, 1997 SystemSoft shall pay Intel $ 1,022,400.*
On or before June 1, 1998 SystemSoft shall pay Intel $ 500,000.
On or before September 1, 1998 SystemSoft shall pay Intel $ 500,000.
On or before December 1, 1998 SystemSoft shall pay Intel $ 500,000.
On or before March 1, 1999 SystemSoft shall pay Intel $ 500,000.
On or before June 1, 1999 SystemSoft shall pay Intel $ 500,000.
On or before September 1, 1999 SystemSoft shall pay Intel $ 500,000.
On or before December 1, 1999 SystemSoft shall pay Intel $ 262,816
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$ 4,262,816.
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* $22,400 of this amount represents all royalties due for the period
November 1, 1997 through December 31, 1997 on products licensed under the
Prior Agreement and the Subsequent Amendments.
In the event that SystemSoft is more than 60 calendar days late on any of the
installment payments stipulated above Intel will have the option, at its sole
discretion and upon written notice to SystemSoft, to immediately terminate this
Agreement for cause. Upon any such termination, all payments received by Intel
hereunder shall be credited as royalty payments against SystemSoft's actual
royalties due Intel pursuant to the terms and conditions of the Prior Agreement
and the Subsequent Amendments had this Agreement never been executed and the
Parties shall thenceforth abide by the terms and conditions of the Prior
Agreement and Subsequent Amendments for the remaining term thereof. To give
effect to this potential remedy, SystemSoft shall continue to provide Intel with
quarterly royalty reports (within five business days following the end of the
quarter) as set forth under Section 5.5 of the Prior Agreement until such time
that the Stipulated Royalty has been fully paid to Intel.
All payments and reports shall be sent to:
Intel Corporation
2111 NE 25th Ave
Hillsboro, OR 97124
Mailstop: JF3-149
Attn: Post Contracts Management, Sheryl White
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