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Joint Product And Marketing Agreement

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EXHIBIT 10.9


Joint Product and Marketing Agreement dated September 27, 1999.


2
EXHIBIT 10.9


Note: Confidential treatment has been requested with respect to certain portions of this exhibit. Such portions are marked with a "[*]" in place of the redacted language. Omitted portions are filed separately with the Securities and Exchange Commission.


IBM AND VISION
JOINT PRODUCT AND MARKETING AGREEMENT


This Joint Product and Marketing Agreement is entered into this 27th day of September, 1999 ("EFFECTIVE DATE") between Vision Software Tools, Inc. ("Vision") located at 2101 Webster Street, Eighth Floor, Oakland, CA 94612, and International Business Machines Corporation ("IBM") located at New Orchard Road, Armonk, NY 10504. For purposes of this Agreement, all references to IBM shall mean IBM and its Subsidiaries.


In this Agreement the parties establish a strategic marketing and development relationship to create a single product offering that integrates Vision's Business Logic Server technology and Developer Studio development tools with IBM's WebSphere Application Server Advanced Edition and WebSphere Studio. The resulting product will be offered by both parties under their own brand names, terms conditions and prices.


SOW's and ATTACHMENTS (incorporated herein by reference)


1. JM-SOW 2. JP-SOW 3. Attachment 1: EFT Authorization Form


The parties hereby agree as follows:


1.0 DEFINITIONS


1.1 "AGREEMENT" means this Joint Product and Marketing Agreement and any
relevant Statements of Work and other agreements, attachments or
appendices specifically referenced in this Agreement.


1.2 "CODE" means computer programming code, including both "Object Code"
(computer programming code substantially in binary form that is directly
executable by a computer after processing, but without compilation or
assembly) and "Source Code" (computer programming code that may be
displayed in a form readable and understandable by a programmer of
ordinary skill, excluding Object Code).


1.3 "DELIVERABLE" means items that one party prepares for or provides to
another as described in a SOW. Deliverables include, as applicable, Code
and Documentation.


1.4 "DERIVATIVE WORK" means a work that is based on an underlying work and
that would be a copyright infringement if prepared without the
authorization of the copyright owner of the underlying work.


1.5 "DEVELOPMENT ENVIRONMENT" means the Tools, Documentation, Test Suites and
other items that are necessary to develop and maintain Integrated Code and
Derivative Works thereof.


1.6 "DOCUMENTATION" will be defined in the JP-SOW.


1.7 "ENHANCEMENTS" means all changes to Code and Documentation, including:
upgrades, new functions, Maintenance Modifications, new releases, and new
versions that the parties agree to include in future Releases, whether or
not constituting Derivative Works.


1.8 "HARMFUL CODE" is any computer Code, programming instructions, or set of
instructions that is constructed for the purpose of damaging, interfering
with, or otherwise adversely affecting computer programs, data files or
hardware, without the consent or intent of the computer user. This
definition includes, but is not limited to, self-replicating and
self-propagating programming instructions commonly called "viruses" and
"worms."


1.9 "IBM CODE" will consist of WebSphere Application Server-Advanced Edition
("WAS-AE") and WebSphere Studio ("WS") in Object Code form accompanied by
all associated Documentation as well as other Code that may be defined in
a SOW.


1.10 "INTEGRATED CODE" consists of Vision Code integrated with IBM Code in
Object Code form and accompanied by its associated Documentation.
Integrated Code will be further defined in a JP-SOW. The resulting
Integrated Code is expected to be the technology base of the parties'
strategic relationship.


Page 1 of 17 3


1.11 "INVENTION" means any idea, design, concept, technique, invention,
discovery or improvement, whether or not patentable, conceived or
reduced to practice by a party.


1.12 "JOINT INVENTION" means any Invention made jointly by IBM and Vision.


1.13 "MAINTENANCE MODIFICATIONS" means revisions in either party's Object
Code to correct errors and deficiencies.


1.14 "RELEASE(S)" is a version of Integrated Code that is further described
in a SOW. Specific Releases will be designated by a number in the
relevant SOW.


1.15 "STATEMENT OF WORK" or "SOW" means any document attached to or included
in this Agreement which describes the parties responsibilities,
including, without limitation, any requirements, specifications,
Deliverables or schedules. Initially, the Agreement will include the
following SOW's:


1.15.1 "JOINT MARKETING SOW" or "JM-SOW" describes the parties' joint
marketing activities and responsibilities and is incorporated
herein by reference.


1.15.2 "JOINT PRODUCT SOW" or "JP-SOW" describes the parties'
responsibilities with respect to product development and support
and is incorporated herein by reference.


1.16 "SUBSIDIARY" means an entity that is owned or controlled directly or
indirectly (by more than 50% of its voting stock, or if not voting
stock, decision-making power) by Vision or IBM. An entity is considered
to be a Subsidiary only so long as such ownership or control exists.


1.17 "TERMINATION LEVEL CODE" is the most recent version of IBM Code or
Vision Code that exists as of the date of termination.


1.18 "TOOLS" means non-commercially available software required for the
development, maintenance or implementation of a software deliverable.


1.19 "VISION CODE" will consist of Business Logic Server ("BLS") and
Developer Studio in Object Code form accompanied by all associated
Documentation as well as other Code that may be defined in a SOW.


2.0 RESPONSIBILITIES OF THE PARTIES


2.1 IBM RESPONSIBILITIES.


2.1.1 Deliverables. IBM will provide to Vision all Deliverables as
specified in the JP-SOW.


2.1.2 Development and Support Responsibilities. IBM shall be
responsible to complete the obligations specified in the JM-SOW.


2.1.3 Marketing Responsibilities. IBM shall be responsible to complete
the obligations specified in the JM-SOW.


2.2 VISION RESPONSIBILITIES.


2.2.1 Deliverables. Vision will provide to IBM all Deliverables as
specified in the JP-SOW.


2.2.2 Development and Support Responsibilities. Vision shall be
responsible to complete the obligations specified in the JP-SOW.


2.2.3 Marketing Responsibilities. Vision shall be responsible to
complete the obligations specified in the JM-SOW.


2.3 JOINT RESPONSIBILITIES. Vision and IBM will each create a project office
to coordinate activity related to the overall success of the
relationship. This office will be staffed as follows:


2.3.1 Sponsoring Executive -- A senior executive from each party will
be assigned to provide oversight to the relationship. These
individuals will meet quarterly to review the progress, status
and plans for the relationship.


Page 2 of 17 4
2.3.2 Marketing Program Manager -- Each party will assign a manager who
will be responsible for the marketing aspects of the relationship.
These individuals will monitor the execution of joint marketing
programs, facilitate agreement on "special bid" situations, and
build joint marketing plans for future use.


2.3.3 Development Manager -- Each party will assign a development manager
to oversee product definition and release scheduling. This team
will be responsible for creating the requirements and reaching
agreement for the new/changed content of each release. This team
will recommend changes potentially to both BLS/Developer Studio and
WAS-AE. The intent is to ensure that neither product introduces any
enhancements that regress the functionality of the other or
introduce any migration compatibility problems for IBM or Vision's
respective customers. In addition, meetings will be held as needed
with the product groups to discuss any new initiatives that IBM or
Vision may want to integrate into a future release.


2.3.4 Contract Coordinators -- Each party will assign a contact
coordinator who will be responsible to receive all notices and
administer the Agreement.


2.3.5 The assigned members of the project office are identified in
Section 12.0, "Project Office Staff" and will be available to
participate in the resolution of disputes per Section 9.0 "Dispute
Resolution Process."


3.0 LICENSE GRANTS


3.1. BY IBM. Subject to the terms and conditions of this Agreement:


3.1.1 For Integration. IBM grants Vision a nonexclusive, worldwide
license to use, have used, execute, reproduce, transmit, display,
test, and perform the IBM Code in Object Code form only for
integration of the IBM Code as part of the US English language
version of Release 1, the International version of Release 1, and
for distribution to IBM for the purpose of allowing IBM to perform
its proposed obligations under the JP-SOW.


3.1.2 For Distribution. IBM grants Vision a nonexclusive, worldwide
license to use, reproduce, transfer, distribute, market and
sublicense the IBM Code in Object Code form and any modifications
made to the Vision Code made by IBM solely contained as part of the
Integrated Code as part of the US English language version of
Release 1, the International version of Release 1, or any follow on
Releases as agreed to by the parties.


3.1.3 For Documentation. IBM grants Vision a nonexclusive, worldwide
license to use, have used, execute, reproduce, transmit, display,
perform, modify, prepare or have prepared Derivative Works,
transfer, distribute, market, and sublicense the IBM-modified BLS
and Developer Studio Documentation Source Code for use with the US
English language version of Release 1, the International version of
Release 1, or any follow on Releases as agreed to by the parties.


3.2 BY VISION. Subject to the terms and conditions of this Agreement.


3.2.1 For Documentation. Vision grants IBM a nonexclusive, worldwide
license to use, have used, execute, reproduce, transmit, display,
modify, prepare or have prepared Derivative Works and perform the
BLS and Developer Studio Documentation Source Code in order to
conform to IBM documentation standards and for translation and
internationalization purposes. Further Vision grants IBM the right
to distribute the resulting work to Vision for the purpose of
integration of such work into the US English language version of
Release 1, the International version of Release 1, or any follow on
Releases as agreed to by the parties.


3.2.2 For Translation and Testing. Vision grants IBM a nonexclusive,
worldwide license to use, have used, execute, reproduce, transmit,
display, prepare or have prepared Derivative Works, perform, and
test the Vision Code and other materials to be translated and
internationalized and to provide the resulting work to Vision for
integration into the US English version of Release 1, International
version of Release 1 and follow on Releases as agreed to by the
parties.


Page 3 of 17


5
3.2.3 For Distribution. Vision grants IBM a nonexclusive,
worldwide license to use, reproduce, transfer, distribute,
market, prepare or have prepared Derivative Works and
sublicensed for distribution the Vision Code solely as
contained in the Integrated Code (including but not limited
to the International version of the Integrated Code), and
Documentation as modified by IBM (including but not limited
to any internationalization changes) in Object Code form
only, for use with the US English language version of
Release 1, the International version of Release 1, or any
follow on Releases as agreed to by the parties.


3.2.4 For Developer Studio. Vision grants IBM a nonexclusive,
worldwide license to use, reproduce, market, prepare or have
prepared Derivative Works of the Developer Studio code,
Documentation as may be modified by IBM (including but not
limited to any internationalization changes), and any
enhancements thereof, and to distribute, transfer and
sublicense such code and Documentation in Object Code form
only, to customers who have licensed the US English language
version of Release 1, the International version of Release
1, or any follow on Releases as agreed to by the parties.


3.1 FOLLOW-ON RELEASES. The Parties anticipate that follow-on releases of
the Integrated Code (beyond Release 1) will be mutually agreed upon
during the term of this Agreement. At such time, the appropriate SOW
and license terms will be added to this Agreement by written
Amendment.


3.2 EXERCISE OF SECTION 10.6.3 OPTION. Should IBM elect the option
specified in Section 10.6.3, and subject to the terms and conditions
of this Agreement, the following licensing terms apply to such an
engagement.


3.2.1 By IBM for Integration of Future Releases of WAS-AE with the
Termination Level Code. IBM grants Vision a nonexclusive,
worldwide license to use, execute, reproduce, transmit,
display, and perform the IBM Code in Object Code form only
for the purpose of integrating the selected level of the IBM
Code (provided by IBM to Vision pursuant IBM's exercise of
the option defined in Section 10.6.3 of this Agreement) with
the latest version or release of the Vision Code distributed
as part of the Integrated Code at the time of termination or
expiration of this Agreement.


3.2.2 By Vision for the Derivative Work of the Vision Code that
Results From the Integration. Vision grants IBM an
exclusive, worldwide, irrevocable, royalty-free license to
transfer, distribute market, prepare or have prepared
Derivative Works and sublicense the Derivative Works of the
Vision Code as part of the Integrated Code created by Vision
pursuant to IBM's exercise of the option defined in Section
10.6.3, in Object Code form only solely for distribution to
existing users of the Integrated Code at the time of
termination or expiration of this Agreement.


3.2.3 Except as otherwise provided herein, Vision shall have no
right to distribute or otherwise use and distribute the
Integrated Code created pursuant to Sections 10.6.3 and 3.4
or any Derivative Work of the Vision Code created pursuant
to IBM's exercise of the option defined in Section 10.6.3 of
the Agreement.


3.3 OWNERSHIP RIGHTS.


3.3.1 Except as otherwise provided herein, IBM shall retain
exclusive ownership of all right, title and interest,
including all intellectual property rights, in all of its
preexisting material, including, but not limited to, the IBM
Code and any IBM Documentation. IBM will also exclusively
own all right, title and interest, including all
intellectual property rights, in any Code (other than
Joint Inventions) that it creates that becomes a part of the
Integrated Code.


3.3.2 Except as otherwise provided herein, Vision shall retain
exclusive ownership of all right, title and interest,
including all intellectual property rights, in all of its
preexisting material, including, but not limited to, the
Vision Code and any Vision Documentation. Vision will also
exclusively own all right, title and interest, including all
intellectual property rights, in any Code (other than Joint
Inventions) that it creates that becomes a part of the
Integrated Code.


3.4 The parties agree that IBM may package and distribute the Vision Code
incorporated into the Integrated Code pursuant to the terms of Section
3.2.3 with other IBM or third party products subject to mutual
agreement on the appropriate royalty payments due to Vision.


Page 4 of 17 6 3.5 Except as provided herein, nothing contained in this Agreement shall be
construed to grant either party any other licenses, whether express or
implied, by estoppel or otherwise, in or to any trademarks, copyrights,
patents, or other intellectual property rights of the other party.


4.0 ROYALTIES


4.1 VISION ROYALTY PAYMENTS. Subject to the terms and conditions of this
Agreement, Vision will pay IBM a percentage of all product license fees,
product upgrade fees (including fees for additional development seats) and
monthly usage fees recorded by Vision (less any applicable taxes,
shipping costs and returns) for each authorized copy of the Integrated
Code licensed and distributed by Vision pursuant to the terms of this
Agreement according to the following table:


[*]


4.2 IBM ROYALTY PAYMENTS. Subject to the terms and conditions of this
Agreement, IBM will pay Vision a percentage of all product license fees,
product upgrade fees (including fees for additional development seats)
and monthly usage fees recorded by IBM (less any applicable taxes,
shipping costs and returns) for each authorized copy of the Integrated
Code licensed and distributed by IBM pursuant to the terms of this
Agreement according to the following table:


[*]


4.3 The parties recognize that IBM does not currently have a process which
can accurately track the number of IBM employees that may use the Vision
Code for productive (non-development) purposes: However, IBM agrees to
establish a process to reduce the likelihood that the Vision Code is used
for productive internal use, and in the event that it comes to the
attention of the Contract Coordinators that IBM employees are using the
Vision Code for productive (non-development) purposes, IBM will subject to
Section 4.8, "Exceptions to Royalty Payment Obligations," pay Vision the
appropriate Minimum Royalty for each identified authorized copy of the
Vision Code used by IBM for such purposes as specified in Section 4.6. The
parties also agree that this Section 4.3 shall not be subject to any audit
conducted by Vision, provided that the foregoing shall not be deemed to
constitute a waiver of Vision's right to seek any remedies it may have at
law or in equity relating to such unauthorized use.


4.4 In the event that the content of the Integrated Code is modified by the
addition of more than an insignificant amount of IBM Code or Vision Code
not previously a part of the Integrated Code, and which materially alters
the relative value of contribution of either party, Vision and IBM agree
to, in good faith, renegotiate the royalty percentages to reflect the
value of the added Code.


4.5 ROYALTY CALCULATIONS. Royalties, if any, are paid against revenue
recorded by the party licensing to the end-user for a calendar royalty
payment quarter Payment will be made by the last day of the first
calendar month following the close of the royalty payment quarter. All
payments will be made in U.S. Dollars. Payments based on foreign revenue
will be converted to U.S. dollars on a monthly basis at the rate of
exchange published by Reuters Financial Service on approximately the same
day each month.


4.6 MINIMUM AVERAGE PER RUNTIME CPU ROYALTY. For the period beginning with the
execution of the Agreement and ending 12/31/2000, IBM will calculate the
average revenue recorded per each runtime CPU license granted during the
period (runtime CPU revenue divided by the number of runtime CPU unit
sales recorded). If the average revenue recorded per each runtime CPU
license granted is less than [*] ("Minimum Royalty" for 2000), IBM will
pay to Vision the difference multiplied by the number of runtime CPU units
sales recorded. For the period beginning 1/1/2001 and ending 12/31/2001,
IBM will calculate the average revenue recorded per each runtime CPU
license granted during that period (runtime CPU revenue divided by the
number of runtime CPU unit sales recorded). If the average CPU revenue
recorded per each runtime CPU license granted is less than [*] ("Minimum
Royalty" for 2001), IBM will pay to Vision the difference multiplied by
the number of runtime CPU units sales recorded. For subsequent years the
Minimum Royalty will be negotiated between the parties. IBM will pay such
amounts to Vision within thirty (30) days after the end of the applicable
period.


* Confidential treatment requested for redacted portion.


Page 5 of 17 7 4.7 SPECIAL BIDS. The following shall not be included in the average per
runtime CPU revenue recorded calculation: (i) special bids jointly
agreed to by IBM and Vision; and (ii) royalties received from OEM
agreements or from agreements with Federal, State, Local and foreign
governments.


4.8 EXCEPTIONS TO ROYALTY PAYMENT OBLIGATIONS. Neither party has any
royalty obligation for:


4.8.1 the Integrated Code or its Derivative Works used for: (i)
development, testing, maintenance or support activities conducted
by such party or its distributors or agents; (ii) marketing
demonstrations, customer testing or trial periods (including
early support, prerelease, encrypted, locked sampler
distributions not resulting in a license for full productive use,
a reasonable number of evaluation and demonstration "not for
resale" copies provided without charge under the terms of a
party's partner programs, a reasonable number of licenses
provided to ISV's without charge under a party's standard partner
support or sales agreements without a royalty obligation, or
other similar programs), Integrated Code training or education;
or (iii) backup and archival purposes;


4.8.2 a copy of the Integrated Code installed by a licensed end user
on an alternate work station (e.g., home terminal or laptop),
provided the end user may not use the Integrated Code on both
work stations at the same time;


4.8.3 the other party's Code (or a functionally equivalent work) that
becomes available generally to third parties without a payment
obligation;


4.8.4 Documentation provided with, contained in, or derived from the
Integrated Code;


4.8.5 Maintenance Modifications; and


4.8.6 warranty replacement copies of the Integrated Code.


5.0 SOURCE CODE ESCROW


5.1 The parties will enter into a separate, written escrow agreement, at
IBM's expense, with a recognized third-party escrow agent to maintain
at least one (1) copy, for each version and release of the Vision Code,
of the following escrowed materials ("ESCROWED MATERIALS"):


5.1.1 the Vision Code in a machine-readable format, including both
Source Code and Object Code;


5.1.2 a complete set of Vision's existing user and development
documentation in both hard copy and machine-readable (as
available) formats (including design specifications, flowcharts,
etc.);


5.1.3 a complete list of all items and software required for the
development, maintenance or implementation of the Vision Code;


5.1.4 the Tools in a machine-readable format, including both Source
Code and Object Code;


5.1.5 any other not commercially available tools, instructions or
material used by Vision in the development of the Integrated
Code; and


5.1.6 a detailed, comprehensive list of all items and Source Code
(indicating module names and dates) in the Escrowed Materials.


Page 6 of 17 8
Vision will update the Escrowed Materials whenever it issues a
modification to the Vision Code or Documentation to incorporate any
Maintenance Modifications and Enhancements, and to account for new
relea
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