DRIV » Topics » RECITALS

This excerpt taken from the DRIV 10-Q filed Aug 9, 2005.
RECITALS

 

A.           Symantec and Digital River are parties to the Agreement, which provides, among other things, for Digital River to resell Symantec Products to end users through Symantec’s Storefront, in accordance with the terms and conditions set forth in the Agreement.

 

B.             Symantec and Digital River desire to make several adjustments to the terms and conditions of the Agreement.

 

NOW, THEREFORE, in consideration of the foregoing, and of the mutual covenants and agreements hereinafter set forth, Symantec and Digital River agree as follows:

 

1.               Capitalized terms used herein and not otherwise defined below shall have the meanings set forth in the Agreement.

 

2.               Selling Veritas Product on the Storefront.  Section 3 “Obligations of Digital River” is hereby amended to include the following at the end of the section:

 

Selling Veritas Products on the Storefront Post Closing.

 

a.               Background.  While Symantec currently anticipates completing its acquisition of all the assets of Veritas Software Corporation (“Veritas”), which will result in Veritas becoming a wholly owned subsidiary of Symantec (the “Closing”), by June 30, 2005, this date is subject to change.  As a result, the effective date of the Closing for purposes of this Amendment Eleven is the date upon which Digital River receives written notice that the Closing has occurred (the “Closing Date”) from *, Director, Global Online Sales.  Symantec, immediately following the Closing, desires to sell the Veritas computer software products, as listed in Exhibit Y hereto, as it may be amended from time to time (“Veritas Products”), on the Storefront in North America (the “VP Territory”).  Symantec will not offer downloadable versions of the Veritas Products on the Storefront.

 


*CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

 

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b.              Pre-Closing Work.  Symantec, and Digital River at Symantec’s reasonable request, will perform, prior to the Closing, the work Symantec deems reasonably necessary in order be prepared to sell the Veritas Products on the Storefront immediately following the Closing.  Such work includes, but is not limited to: creating SKUs, developing and creating web pages and online links, providing Veritas Products to Digital River to fulfill post-Closing sales, and creating internal processes and procedures to address the selling and fulfilling of Veritas Product on the Storefront (the “Pre-Closing Work”).

 

c.               Purchase Orders for, and Stocking of, Veritas Product.  Symantec personnel will coordinate with Digital River, and Digital River will reasonably cooperate with Symantec, regarding Digital River obtaining Veritas Products from Symantec, prior to the Closing, in order that Digital River will be prepared to fulfill the initial post-Closing sales of Veritas Products on the Storefront.

 

d.              Limitations.  Prior to the Closing Date, under no circumstances: (a) will the Storefront display or refer to the Veritas Product; (b) will the Storefront enable a user to purchase the Veritas Product; (c) will orders for Veritas Product be accepted or fulfilled on the Storefront.  Under no circumstances will the Veritas Products be sold on the Storefront outside the VP Territory.

 

e.               Pricing.  The Veritas Products will be treated as Consumer Symantec Products, as that term is used in the Agreement, for purposes of selling the Veritas Products on the Storefront, and for purposes of calculating the actual final price Digital River pays Symantec for the Veritas Products, which is based upon the Partner Efficiency Sharing Model.

 

3.               Partner Efficiency Model.  Section 11(c)(i), as amended by Amendment Four, is hereby deleted in its entirety and replaced with the following.

 

c.               Payments by Digital River to Symantec.

 

i.                  Symantec Pricing to Digital River.  From time to time, Symantec shall provide Digital River with price lists setting forth the * prices from Symantec to Digital River for the Symantec Products (

This excerpt taken from the DRIV 8-K filed Jan 20, 2005.

Recitals

 

1. DR GmbH is the sole shareholder of element 5, and DR Inc. is the sole shareholder of DR GmbH. The Managers are members of the management board of element 5.

 

2. Under a certain Stock Purchase Agreement dated as of April 17, 2004, (the “SPA”) among DR Inc., DR GmbH (formerly known as the Blitz F03-1424 GmbH), and the Sellers, DR GmbH acquired all of the issued and outstanding shares of capital stock of element 5 from the Sellers as the former shareholders of element 5. The SPA was closed, and the shares of capital stock of element 5 were assigned and transferred to DR GmbH, on April 19, 2004.

 

3. The total consideration paid by DR GmbH under the SPA for the shares of element 5 was split, in accordance with the SPA, in certain cash payments payable immediately upon Closing, and a total amount of US$ 13,500,000 deposited in escrow in accordance with a certain Escrow Agreement dated as of April 17, 2004 (the “Escrow Agreement”) by and among DR GmbH, the Shareholders’ Agent as representative of the Sellers as former shareholders of element 5, and Hypovereinsbank AG as Escrow Agent.

 

4. In accordance with the Escrow Agreement, cash in the amount of US$1.5 million was released on the Management Release Date (as defined in the Escrow Agreement). The remainder of the Escrow Funds, equal to US$12 million, shall, under the Escrow Agreement, be distributed to the Sellers within five business days following the 18-month-anniversary of the Closing Date (the Escrow Termination Date).

 

5. The SPA provides inter alia for a representation and warranty by the Selling Managers with respect to the financial statements of element 5 as per December 31, 2003 and December 31, 2002.

 

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The financial statements of element 5 as of December 31, 2003 were adopted prior to the closing, in January 2004.

 

6. The parties wish to resolve all claims against the escrow funds, including the claim filed with the escrow agent on July 16, 2004.

 

7. Each of the Managers has entered into a service agreement with the company dated as of April 16, 2004 (each a “Service Agreement”).

 

8. The Parties wish to comprehensively and conclusively settle their legal relationship under the SPA, including but not limited to the escrow, and any representation and warranty claims.  The Parties also agree that the Managers shall resign as members of the management board of element 5, whilst continuing to render their services to the company for a transitional period, under the existing Service Agreements and without terminating these agreements. The Parties therefore have agreed to amend the Service Agreements accordingly as set forth herein.

 

EXCERPTS ON THIS PAGE:

10-Q
Aug 9, 2005
8-K
Jan 20, 2005
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