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NYCLA

CLE

I

N

S

TI

TU

T

E

D

RAFTING

J

OINT

V

ENTURE

A

GREEMENTS

Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY

scheduled for April 21, 2015

Faculty:

Program co-sponsors: NYCLA’s Construction Law Committee and Entertainment Intellectual property & Sports Section

Program Chair: Joel Sciascia, Pavanni McGovern

Faculty: George Meyer, Carlton Fields/Jorden Burt; Jose Pienknagura, AECOM; Richard Raysman, Holland & Knight; Carolyn Vardi, White & Case

This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 2 Transitional and Non-Transitional credit hours: 2 Skills.

This program has been approved by the Board of Continuing Legal education of the Supreme Court of New Jersey for 2 hours of total CLE credits. Of these, 0 qualify as hours of credit for ethics/professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law.

ACCREDITED PROVIDER STATUS: NYCLA’s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the States of New York and New Jersey.

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Information Regarding CLE Credits and Certification

Drafting Joint Venture Agreements

April 21, 2015; 6:00 PM to 8:00 PM

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

i. You must sign-in and note the time of arrival to receive your course materials and receive MCLE credit. The time will be verified by the Program Assistant.

ii. You will receive your MCLE certificate as you exit the room at the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.

iv. Please note: We can only certify MCLE credit for the actual time

you are in attendance. If you leave before the end of the course,

you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been

determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week.

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New York County Lawyers’ Association

Continuing Legal Education Institute

14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Drafting Joint Venture Agreements

Tuesday, April 21, 2015 6:00 PM to 8:00 PM

Program Co-sponsors: NYCLA’s Construction Law Committee and

Entertainment Intellectual Property & Sports Section

Program Chair: Joel Sciascia, Pavanni McGovern

Faculty: George Meyer, Carlton Fields/Jorden Burt; Jose Pienknagura,

AECOM; Richard Raysman, Holland & Knight; Carolyn Vardi, White &

Case

AGENDA

5:30 PM – 6:00 PM

Registration

6:00 PM – 6:10 PM

Introductions and Announcements.

6:10 PM – 8:00 PM

Presentation and Discussion

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Drafting Joint Venture Agreements Tuesday, April 21, 2015 6:00pm-8:00pm

2 NY MCLE Credits: 2 Skills; Transitional and Non-transitional 2 NJ Credits: 2 General

14 Vesey Street

New York County Lawyers’ Association

Panel

Joel Sciascia, Pavarini McGovern

George Meyer, Carlton Fields/Jorden Burt Jose Pienknagura, AECOM

Richard Raysman, Holland & Knight Carolyn Vardi, White & Case

Title Author Type

Drafting Joint Venture Agreements Carolyn J. Vardi PowerPoint Construction Joint Venture Agreements George J. Meyer, Jose

Pienknagura, and Carlton Fields Jorden Burt , P.A.

PowerPoint

Technology and Joint Venture Agreements Richard Raysman PowerPoint Negotiating Joint-Venture Management Provisions: A

Primer Rashida La Lande Article The Key Benefits Of Forming A Joint Venture Rashida La Lande Article Business Divorces – Plan Ahead - Article Mark Rosencrantz Article Recent Disputes between Parties to Joint Ventures Richard Raysman and Peter

Brown Article AIA-C101 - 1993 Joint Ventures AIA Sample Agreement Strategic Alliance Software Development And

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Drafting Joint Venture Agreements

New York County Lawyers’ Association- April 21, 2015

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White & Case 1

Why a Joint Venture?

Strategic Joint Ventures

Sharing costs and risks

Accessing new markets and/or new technology

Pooling resources

Financial Investors Joint Ventures

Sponsor/Lead investor

Minority financial investors

Management

(11)

White & Case

Initial Considerations

Due Diligence

Business Issues

Capital Contributions

Ownership/Governance (i.e., Control)

Opportunities/Non-Compete Agreements

Going-Forward Support

Monetization/Liquidity Events

Minority Protections

Information rights/board observer

Corporate governance protection

Veto rights over significant transactions

Legal Issues

Tax Planning and Type of Entity (Inc./LLC/LP)

IP Considerations (protecting a partner’s IP and how to deal with jointly developed IP)

Antitrust concerns

Jurisdiction of Formation

(12)

White & Case

Who Has the Control?-Corporate Governance

Board of Directors

Equityholders agree to allocate Board seats – usually based on ownership

percentage

When there is a Sponsor/Lead Investor, equityholders generally agree to elect a

majority of directors nominated by the Sponsor/Lead Investor

Minority financial investors may be entitled to nominate a director

Equityholders often agree to elect the chief executive officer of the operating

company to the Board

In lieu of a Board seat, some minority investors may seek Board observer

Receives same meeting materials as Board members

The Company is permitted to exclude information which may raise a conflict or

jeopardize attorney/client privilege

(13)

White & Case

Who Has the Control-Corporate Governance (Cont’d)

Veto Rights

On some occasions, minority investors may be entitled to veto certain major

transactions

Major acquisitions or dispositions

The Company’s initial public offering

Declaring bankruptcy

Declaring dividends

Incurring debt above a pre-approved limit

Amendment of material agreements

Amendment of the Company’s organizational documents

Other “material” actions or transactions

(14)

White & Case

Who Has the Control-Corporate Governance (Cont’d)

Affiliate Transactions

The Company is prohibited from entering into transactions with Affiliates (e.g., the

Sponsor/Lead Investor) without the approval of the disinterested directors or a

majority of disinterested stockholders

Information Rights

Equityholders entitled to receive quarterly and annual financial statements

Certain VCOC investors may require additional rights (e.g., right to consult with

management)

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White & Case 6

Keeping Partners Locked In - Transfer Restrictions

Transfer Restrictions

Strategic JV Approach

Right of First Refusal

Right of First Offer

Limited Permitted Transfers

Financial Investor/Lead Investor Approach

Control of the Investor Group is Key

No transfer permitted other than “Permitted Transfers” such as:

Basic wills and trusts transfers—allows estate planning for management

Transfers to affiliates (other than competitors)

Transfers expressly permitted by the Equityholders Agreement

Drag-Along rights

Tag-Along rights

Registration rights

Transfers in connection with transfers of related debt

(16)

White & Case

Keeping Partners Locked In - Transfer Restrictions (cont’d)

Right of First Refusal

Equityholder may sell to Third Party if the other Equityholders refuse to exercise right

to repurchase

Selling Equityholder Must Identify Third Party and Terms of Proposed Sale to the

Company and Other Equityholders (“chills” Third Party sale)

The other Equityholders have the right to purchase some or all of the shares on

the terms offered to the Third Party

If the other Equityholders fail to purchase all the shares proposed for sale, the

Selling Equityholder may sell all shares to the Third Party

Right of First Offer

Selling Equityholder offers shares to the other Equityholders first, then finds a

third-party Buyer

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White & Case

Keeping Partners Locked In - Transfer Restrictions (cont’d)

Tag-Along Rights

Minority Investors right to participate in sales by sponsor/lead Investor

Does not apply to transfers to affiliates

Sponsor/Lead Investor May Request “Cushion” —Some Sales Allowed Before

Tag-Along Rights Triggered

Minority Investors May Elect to Participate Up to Their Pro Rata Portion

Minority Investors Must Sell on Same Terms as Sponsor/Lead Investor

(Representations/Warranties/Indemnification)–Sometimes minority investors are

not willing to give full Reps and Warranties

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White & Case

Keeping Partners Locked In -Transfer Restrictions (cont’d)

Drag-Along Rights

Sponsor/Lead Investor right to sell whole Company

In Connection with a Sale of the Business, Sponsor/Lead Investor may require all

Equityholders to Participate

Minority Investors grant Irrevocable Proxy to Sponsor/Lead Investor to

consummate Sale of the Business

Minority Investors may only be required to give limited Reps (Ownership of Equity,

Authority to consummate Transaction)

Minority Investors may be permitted to limit Indemnification exposure

(Indemnification granted on a several, not joint and several, basis; exposure

limited to gross proceeds from the transactions

Recently, in Halpin v. Riverstone National, the Delaware Chancery Court held that

failure to properly exercise drag-along rights allowed minority holders to pursue

their statutory appraisal rights

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White & Case

10

Structuring Profit Sharing-An LLC Example

An LLC Agreement can establish different classes of LLC interests

Voting or Non-Voting

Capital or Profits Interests

If a member would be entitled to a share of the proceeds on a deemed

liquidation of the LLC at the time the interest is received, that member

has a “capital interest”

Most members who contribute cash or other property receive capital interests

If a member would not be entitled to a share of the proceeds on a

deemed liquidation of the LLC at the time the interest is received, that

member has a “profits interest”

Profits interests only share in future appreciation of the LLC

Under certain circumstances, profits interests can be granted to management on a

tax-free basis, and proceeds upon exit will be treated as capital gains

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White & Case

Handling Disputes

Mechanisms to help avoid disputes

Agree one party to have clear control over a particular area

Limit matters subject to equityholder approval

But sometimes disputes cannot be avoided

Dispute should persist for some period of time and be material before deadlock is

declared

Typical deadlock provisions preceded by negotiating period among senior officers of

equityholders

If no negotiated solution, either (i) status quo or (ii) dispute resolution mechanism

applied

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White & Case

Handling Disputes (cont’d)

Potential Dispute Resolution Mechanisms

Mediation

Mostly used for legal or specialist disputes

Parties agree to mediator solution or move on to more severe deadlock resolution

provision

Russian Roulette

Triggering party must offer to sell its shares or buy the non-triggering party’s

shares at price determined by triggering party

Partner may either buy the triggering party’s shares or sell its shares at the price

determined by the triggering party

Texas Shoot Out

Triggering party offers to buy the non-triggering party’s shares at specific price

The non-triggering party may accept triggering party’s offer, or may offer to buy

shares at higher price

If the non-triggering party makes higher offer and the triggering party does not

accept offer, then both parties submit sealed bids and highest bidder wins.

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White & Case

Handling Disputes (cont’d)

Potential Dispute Resolution Mechanisms

Auction Sale

Deadlock triggers commitment to sell the company through an auction process at

best obtainable price

Process often run by an investment bank

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White & Case

Worldwide. For Our Clients.

whitecase.com

White & Case means the international legal practice comprising White & Case LLP, a New York State registered limited liability partnership, White & Case LLP, a limited liability partnership incorporated under English law and all other affiliated partnerships, companies and entities. The partners of our German offices are partners of the New York State registered limited liability partnership. According to the laws of the State of New York, the personal liability of the individual partners is limited.

In this presentation, White & Case means the international legal practice comprising White & Case LLP, a New York State registered limited liability partnership, White & Case LLP, a limited liability partnership incorporated under English law and all other affiliated partnerships, companies and entities.

White & Case LLP

1155 Avenue of the Americas New York, NY 10036

United States

Tel: + 1 212 819 8200 Fax: + 1 212 354 8113

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CONSTRUCTION

JOINT VENTURE AGREEMENTS

Presented by:

George J. Meyer

Jose Pienknagura

Carlton Fields Jorden Burt , P.A.

Hunt Construction Group, Inc.

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A. Types of Joint Ventures

1.

Traditional or Integrated Joint Ventures

2.

Line Item or Non-Integrated Joint Ventures.

3.

Combined Approach

B. Threshold (Pre-Joint Venture) Considerations

1.

When do you enter into the JV Agreement?

2.

Entity Selection

3.

Jurisdiction Selection

4.

Who is in Control: Project Management vs.

Profit Participation

5.

Qualifying the Joint Venture

6.

Parent Guarantees

7.

Bonding

C. Key Provisions in the JV Agreement

1.

Capital Requirements

2.

Profit Participation

3.

Minority Member Protections

4.

Reimbursement of Costs

5.

Management.

6.

Exit Strategies

7.

Insurance

(27)

Types of Joint Ventures

Traditional or Integrated Joint Ventures

- “integrated” agreement

- shared resources

- shared profits and losses

- centralized approach

Line Item or Non-Integrated Joint Ventures

- “non-integrated” approach

- contractual allocation of rights and obligations

- not a true partnership

- no shared resources or shared total profits and losses

- Teaming and Alliance Agreements

Combined Approach

Centralized approach to some aspects of the project & carve out specialized areas

where one or more parties is solely responsible for the work and resulting profit or loss

relating to that work

(28)

When do you enter into the JV Agreement?

Timing issues include:

- negotiating specific deal terms and joint venture agreement language before the 11

th

hour

- confirming the parties are able to agree on specific joint venture deal terms prior to

being awarded the contract

- setting the terms for sharing pre-award costs

- investing significant time and energy (and legal fees) in negotiating an agreement when

the joint venture may not be awarded the contract

Compromise: parties agree to form joint venture in accordance with a detailed term

sheet (MOU) with the form of joint venture agreement attached

Entity Selection

General Partnership

Limited Liability Company

Threshold (Pre-Joint Venture)

Considerations

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Jurisdiction Selection

-Each state (and, potentially, foreign country) has its own peculiar statutes governing

partnerships and LLC’s, which may vary in terms of default management provisions,

fiduciary duties, rights to capital, etc.

-Based on project site or location of JV members

Who is in Control:

Project Management vs. Profit Participation

Contracts allow parties to vary their profit participation, right to capital, capital

contributions, and management percentages.

Profit participation can increase or decrease while the liability for losses can remain

constant.

Run through hypothetical scenarios and craft the relationship you want from an

economic and governance perspective, both in good times and bad.

Threshold (Pre-Joint Venture)

Considerations

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Qualifying the Joint Venture

A joint venture that is a party to a construction contract must be the qualified entity to

perform the work under the contract. Failure to do so can be catastrophic.

Parent Guarantees

Common practice to get a guarantee from the party’s parent with a more formidable

balance sheet to stand behind the obligations of the joint venture party.

Bonding

If performance and payment bonds will be required for project, whose bonding capacity is

used? How are bond premiums paid?

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Capital Requirements

Set out clearly the expectations for capital requirements of the joint venture, both initially and

throughout the life of the project.

Clearly state the parties’ initial capital contribution amounts.

Determine how additional capital contributions will be required or requested, as applicable, e.g.,

minimum contributions based on a set schedule or a projected budget or capital calls as needed.

Capital calls must be carefully drafted (and reviewed) to take into account who has the ability to

make the calls, when calls can be made, and if there are any limits to the calls.

Clearly contemplate remedies for failure of a party to make any required capital contribution.

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Profit Participation

Set out very clearly each party’s share of profits and losses generated from the project.

May, but need not be, the same as each party’s “ownership” percentage or “voting”

percentage.

Do the profit-sharing percentages change over time or are they different based on certain

elements of the project or self-performed work?

“Profit” means different things to different people. Any terms relating to distributions of

cash or property from the joint venture, in particular, should be very clearly defined in the

agreement itself:

- How and when is “profit” determined and distributed?

- Is it all available cash?

- Does it permit for reserves?

- Is “profit” also used in the agreement to refer to tax allocations, and, if so, are they

computed in the same way (probably not)?

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Minority Member Protections

Unanimous Votes on:

-Membership

-Capital Calls

-Contract with Owner (including changes and amendments)

-Adjustments to profit/loss/expense percentages

-Settle claims and disputes

-Purchase and sale of assets

Reimbursement of Costs

Set forth general guidelines for reimbursement of expenses incurred by each party, prior

to and during the bid process, if appropriate, and after the contract is awarded to the

joint venture.

Reimbursement by the joint venture only in the event the owner reimburses the joint

venture.

(34)

Management

Often the most confused provisions of a joint venture agreement.

Establish a clear and unambiguous management plan that allows for timely and final

decisions in the field

Clearly delineated change order authority

Common problems include:

- too many levels of management

- not delineating between party decisions and management committee decisions

- not making it clear when the project manager can act without the management

committee

- not making it clear when the lead venture/managing venture/sponsor can act without

the management committee

- not providing for resolution of deadlocks

(35)

Exit Strategies

Contemplate worst case scenarios

Build in exit strategies to help avoid disputes, and, potentially, litigation

Areas to address include:

- right to withdraw and pursue project on own

- remedies for a party’s breach, default, or insolvency

- deadlock among the parties and/or management committee

- permissible/prohibited transfers to third parties and affiliates

- causes and effects of liquidation of the joint venture

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Insurance

Cover insurance briefly or in depth, as the parties determine.

Key considerations include:

-Does the joint venture purchase project specific insurance or use the JV

members corporate policies?

- When there is a claim who pays the deductible and in what proportion?

- Who chooses legal counsel?

- Who determines whether the joint venture itself makes a claim, settles a

claim, etc?

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Copyright © 2015 Holland & Knight LLP. All Rights Reserved

Technology and Joint Venture Agreements

NYCLA Joint Venture Seminar

Richard Raysman ● New York, NY ● April 21, 2015

(40)

Ownership of Intellectual Property

• Contribution to venture

• Enhancements to existing IP

• Development of new IP

• Termination of joint venture

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Expectations of the Parties

• Business plan

• Expected revenues

• Capital requirements

• Responsibilities

(42)

Software Development

• Responsibility

• Compensation

• Licensing

• Third-parties

4

(43)

Marketing Responsibilities

• Introduction of clients

• Ownership of clients

• Obligation to bring clients to joint venture

• Sales channels

(44)

Compensation Structure

• License fees from clients of the joint venture

• Opportunity to perform consulting services

• Distribution of profits

(45)

Other Considerations

• Hosting responsibilities

• Staffing

7

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Cases

Instep Software, LLC v. Instep (Beijing) Software Co., Ltd., No. 11-cv-3947,

2013 WL 1343874 (N.D. Ill. Apr. 2, 2013), vacated on other grounds, 577 Fed.

Appx. 612 (7th Cir. 2014).

Joint venture between engineering software companies that permitted Instep Beijing to sell

the software in China.

Companies entered into corresponding license agreement. Instep Beijing later rejected the

royalty and pricing schedule in the license. Instep Software then terminated the license.

Instep Beijing claimed this termination was invalid, thus Instep Software was in violation of

JV Agreement.

JV Agreement never mentioned license. License had an integration clause and it’s

irrelevant that both agreements were consummated contemporaneously.

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Cases

Brownstein v. Lindsay, 742 F.3d 55 (3d Cir. 2014).

Co-authors devised computer program and the copyrights embedded therein. They later

formed a joint venture with their former employer to monetize the program.

One author (Brownstein) did not sign the joint venture agreement.

This same author later left the joint venture on bad terms. He then signed a settlement

agreement foregoing any claims to the technology created by the joint venture.

However, the settlement agreement did not transfer Brownstein’s copyrights in the

program to the joint venture.

Therefore, co-author could not register the computer program as a sole owner within the

Copyright Act.

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Cases

GE Oil & Gas, Inc. v. Turbine Generation Services, L.L.C., No.

6:14-00760, 2015 WL 588834 (W.D. La. Feb. 11, 2015).

GE and TGS signed a term sheet memorializing a future joint venture agreement.

Following the funding of a $25 million loan to TGS, GE would make its own

contribution to the joint venture.

TGS never paid back the loan and GE sued. TGS counterclaimed for breach of

joint venture duties and breach of agreement by GE to form a joint venture.

Joint venture could not exist because the term sheet by its terms was not to be

considered final. Therefore, breach of duties by GE could not occur.

However, GE lost motion to dismiss TGS’ claim that no preliminary agreement to

form a joint venture had been created.

Context and intent showed that GE and TGS had agreed to negotiate in good faith

to form some sort of partnership or joint venture.

GE may have not acted in good faith because it had not pursued its obligations

under the term sheet, even after TGS had taken out the $25 million loan.

(49)

H&K DRAFT NYCLA Joint Venture Seminar 4/21/15

STRATEGIC ALLIANCE SOFTWARE DEVELOPMENT AND DISTRIBUTION MASTER AGREEMENT

by and between PARTNERA LLP

and

(50)

TABLE OF CONTENTS

Page

1. OVERVIEW OF AGREEMENT ...1

1.1 Purpose ...1

1.2 Scope of Activity ...1

1.3 Objectives ... Error! Bookmark not defined.

1.4 Relationship of Parties ...2

1.5 Awareness of Product ...2

1.6 Relationship with Client ...2

1.7 Master Subcontractor Agreement ...2

1.8 Contemplated Scope of Activities ...2

1.9 Core Business of the Parties ...2

2. DEFINITIONS ...2

3. JOINT DEVELOPMENT RESPONSIBILITIES ...5

3.1 Development Plan ...5

3.2 PartnerB Development Responsibilities ...6

3.3 PARTNERA Development Responsibilities ...6

3.4 Development Milestones ...6

3.5 Vendor Relationships ...6

3.6 Joint Development ...7

3.7 Information Exchange ...7

4. JOINT MARKETING AND SALES RESPONSIBILITIES ...7

4.1 Joint Business Plan ...7

4.2 Marketing and Sales ...7

4.3 Joint Business Plan Activities ...7

4.4 Sales Channels ...7

4.5 No Other Marketing Activities ...7

4.6 PARTNERA Professional Independence Standards.Error! Bookmark not defined.

4.7 Access to Systems and Assets...8

4.8 Marketing Materials ...8

4.9 Business Opportunities ...8

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ii

4.11 Ownership Rights in Marketing Materials ...9

4.12 PartnerB Deployment... Error! Bookmark not defined.

4.13 Use of Third Parties ...9

5. RELATIONSHIP OF PARTIES...9

5.1 Non-Exclusivity ...9

5.2 Provision of Services: Right of First Refusal ...9

5.3 Investment ...10

5.4 Representation...10

5.5 Staffing ...10

5.6 Sponsors ...10

5.7 Affiliates ...10

5.8 Publicity and News Releases ...10

5.9 Hosting and Access to Solution ...10

6. INTELLECTUAL PROPERTY ...11

6.1 IP General. ...11

6.2 Ownership and License Rights. ...11

6.3 No Right of Ownership ...13

6.4 Restrictions and Licenses. ...13

6.5 Proprietary Filings ...13

6.6 Further Licenses ...14

6.7 Trademarks and Tradenames ...14

6.8 No Assignment...14

6.9 Right of First Refusal in Event of Sale ...14

6.10 Joint Access to Technology Platform ...15

6.11 Residuals ...15

7. PRICING AND LEVEL OF VALUE...15

7.1 Share of License Fees. ...15

7.2 Obligation to Share Revenue ...16

7.3 Jointly Established Sales Targets and Anticipated Revenues ...16

7.4 Collections and Revenue Sharing. ...16

8. COSTS ...16

9. MANAGEMENT COMMITTEE ...16

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iii

9.2 Change Management ...17

9.3 Disclosure of New Management or Ownership ...17

9.4 Dispute Resolution ...17

10. CONFIDENTIAL INFORMATION ...17

10.1 Use and Disclosure ...17

10.2 Non-Disclosure ...18

10.3 Legal Disclosure ...18

10.4 Sole Purpose...18

10.5 Confidential Information of PARTNERA Clients and PartnerB Clients ...18

11. TERM AND TERMINATION ...19

11.1 Term ...19 11.2 Termination. ...19 12. INDEMNIFICATION...20 12.1 Indemnification by PartnerB ...20 12.2 Indemnification by PARTNERA ...21 13. LIMITATION OF LIABILITY ...21 13.1 NO CONSEQUENTIAL DAMAGES ...21 13.2 LIMITATION OF LIABILITY ...21

13.3 ACT OF OTHER PARTY ...22

13.4 WARRANTY DISCLAIMER ...22

14. REPRESENTATIONS, WARRANTEES AND COVENANTS ...22

14.1 Corporate Representations ...22 14.2 Inducement ...23 15. MISCELLANEOUS ...23 15.1 Non-Solicitation ...23 15.2 Bankruptcy ...23 15.3 Section Headings ...23 15.4 Binding ...24 15.5 No waiver ...24 15.6 Invalid ...24 15.7 Execute Documents ...24 15.8 Notices ...24 15.9 Force Majeure ...24

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iv

15.10 Export Control ...25

15.11 Entire Agreement ...25

15.12 Relationship of the Parties ...25

15.13 Publicity ...25

15.14 No Third Party Beneficiaries ...25

15.15 Survival ...25

15.16 Authority ...26

15.17 No Reliance ...26

15.18 Counterparts ...26

15.19 Jointly Drafted ...26

15.20 Law and Venue ...26

15.21 Cooperation ...26

15.22 Severability ...26

15.23 Assignment ...26

(54)

v

Table of Schedules

Schedule Number Description Initial Section Reference

1.6 Master Subcontractor Agreement 1.7

3.1 Development Plan 3.1

4.2 Joint Business Plan 4.2

6.1.1 PARTNERA Existing IP 6.1.1

6.1.1 PartnerB Existing IP 6.1.1

6.2.3 Security Agreement for PARTNERA (security interest in the Covered Products)

6.2.3

6.2.4 Iron Mountain Escrow Agreement 6.2.4

6.4.1 Competitors 6.4.1

7.3 Jointly Established Sales Targets and Anticipated Revenues

7.3 15.24 PARTNERA Trademark and Web Linking

Agreement

(55)

STRATEGIC ALLIANCE MASTER AGREEMENT

This Strategic Alliance Master Agreement (“Agreement”) is made and entered into this ___ day of ____________, 2012 (“Effective Date”) by and between PARTNERA LLP

(“PARTNERA”) , a Registered Limited Liability Partnership formed under the laws of Delaware, having an office at 757 Third Avenue, New York, NY 10017 and PartnerB, Inc. (“PartnerB ”), a _________corporation, having a place of business at

_________________________.

W I T N E S S E T H:

WHEREAS, PARTNERA has a premier reputation, capability and expertise for Private Funding Reporting Requirements;

WHEREAS, PartnerB has software experience and resources to develop and deploy Private Funding Reporting solutions that will be developed with PARTNERA;

WHEREAS, PARTNERA and PartnerB desire to enter into a mutually beneficial relationship that may result in the development of joint products and/or intellectual property, collaboration in marketing and selling jointly defined solutions, and collaborative delivery of those solutions;

NOW, THEREFORE, for and in consideration of the foregoing and of the mutual representations, promises, terms, and conditions contained herein, receipt of which is hereby acknowledged, and intending to be bound, PARTNERA and PartnerB agree as follows:

1. Overview of Agreement

1.1 Purpose. The primary purpose of the Alliance is to develop the “PartnerB Strategic Product” for utilization in conjunction with the PartnerB software platform and PartnerB ’s pre-existing “PartnerB Product”, by each Party agreeing to perform certain tasks and responsibilities itself as well as agreeing to collaborate with the other Party in the

performance of other identified tasks and responsibilities, in accordance with the terms and conditions of this Agreement.

1.2 Scope of Activity. PARTNERA and PartnerB will collaborate on configuring and testing collections of objects for use within the PartnerB “Strategic Product” to be marketed for utilization in conjunction with the PartnerB software platform and PartnerB’s pre-existing Product, (a) with PartnerB being responsible for configuring, customizing, and enhancing the PartnerB Strategic Product (as a baseline Strategic solution as well as for specific client needs), at least in part utilizing applicable business requirements provided by PARTNERA, and (b) with PARTNERA being responsible (i) for providing applicable business requirements to PartnerB, and (ii) for conducting business-level (i.e., not related to software development or programming) testing of the PartnerB Strategic Product business rules functionality and output results. In addition, the Parties will work to coordinate their respective services with the intent of addressing the strategic needs of joint clients in a more complete and seamless manner.

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1.3 Relationship of Parties. The relationship between PARTNERA and PartnerB will not be principal and agent, partners, joint venturers, or any other form of legal association. Each Party will conduct its business in its own name and will be responsible for the acts and conduct of its employees and agents. Neither Party will have authority to act for or bind the other or make any representation or warranty on behalf of the other.

1.4 Awareness of Product. The product is PartnerB Product. PARTNERA will help PartnerB design and develop the product. Awareness of the product will be created through directly engaging the leaders within target clients. Leads may be identified by either Party, but will be discussed and agreed upon by both firms before the client is approached.

1.5 Relationship with Client. For each customer in the target market where the Alliance is proposing the PartnerB Products, the prime and subcontractor model will be jointly agreed between PARTNERA and PartnerB before initiating the engagement, with the decision for prime and subcontractor to be finalized by the Management Committee. PartnerB will be the licensor of the PartnerB Products regardless of which Party is the prime with the customer.

1.6 Master Subcontractor Agreement. For any relationship with an Alliance client requiring a subcontract agreement between the Parties, the Parties will sign the Master

Subcontractor Agreement in substantially the form attached as Schedule 1.6 which will apply to the client relationship. Depending on the relationship with the client, one of the Parties will be the prime contractor and the other Party will be the subcontractor under the Master Subcontractor Agreement.

1.7 Contemplated Scope of Activities. It is anticipated that each Party shall have certain defined roles and responsibilities based upon each Party’s knowledge, experience and expertise.

1.8 Core Business of the Parties. Except for the exclusive commitments set forth in this Agreement, each Party is free to conduct its business (including with competitors of the other Party) without the involvement of the other Party. For example, with respect to PARTNERA, consulting is a core business of PARTNERA. PARTNERA must be able to continue to operate its core business in an unencumbered fashion. The Alliance cannot restrict PARTNERA’s current method of performing its core business. It is PARTNERA’s intent to marshal all of PARTNERA’s capabilities to jointly market the PartnerB Solution and services enumerated under the Alliance governance model. For all other consulting, (e.g., the way PARTNERA currently conducts its professional business), PARTNERA must be able to go to market by itself without PartnerB . For example, PartnerB can pursue IT business that is not a PartnerB Solution without the involvement of PARTNERA.

2. Definitions

“Affiliate” with respect to a Party shall mean any person or entity directly or indirectly controlling, controlled by, or under common control with a Party, and for this purpose, “control,” “controlling” and “controlled by” shall mean the ownership and control of more than fifty

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entity, or the right to direct or control the management or affairs of any person or entity by contract or similar arrangement.

“Agreement” shall have the meaning set forth in the Preamble.

“Alliance” shall mean the alliance of PARTNERA and PartnerB to develop, license and sell PartnerB Solutions in accordance with the terms of this Agreement.

“Anticipated Revenues” shall have the meaning set forth in Schedule 7.3

“PartnerB Existing IP” shall mean any Intellectual Property brought to the relationship by PARTNERB and set forth in Schedule 6.1.1.

“PartnerB Products” shall mean PartnerB Strategic Product and PartnerB Product. “PartnerB Indemnitees” shall have the meaning set forth in Section 12.2.

“PartnerB Strategic Product” is a comprehensive strategic solution, comprising a collection of objects that include various business rules, calculation components, and related features, configured and tested in conjunction with PARTNERA, that are operable to process applicable and relevant base client data in accordance with the Rules and client requirements, and to provide the processed output results to PartnerB’s Component (having equivalent functionality to the PartnerB Product described below), for populating applicable Template Forms, preparing the Template Forms for electronic submission to the regulators, and for thereafter electronically submitting and validating the prepared Template Forms.

“PartnerB Product” is a limited functionality solution, that leverages PartnerB’s existing software platform to capture and format pre-processed client data that has been previously prepared by the client in accordance with the Rules, and to then populate the applicable Template Forms, prepare the Template Forms for electronic submission to the regulators, and to thereafter electronically submit and validate the prepared Template Forms. For the avoidance of any doubt, the PartnerB Product does not comprise any business rules or related data processing functionality, and is solely intended for enabling clients, who use an external strategic solution or manual processes to generate the processed data necessary for reporting requirements, to automatically populate, electronically submit, and validate the applicable Forms. For further avoidance of any doubt, PartnerB Product has been developed, configured and tested without any involvement of, or contribution from, PARTNERA.

“Background Intellectual Property” or “Background IP” of a Party shall mean all its IP which such Party conceives, creates, develops or actually reduces to practice, owns or controls independent of any joint development activity performed hereunder and which is necessary, useful or applicable to the purposes of this Agreement. PartnerB Existing IP and PARTNERA Existing IP are Background IP.

“Calendar Year” shall mean the period from January 1 to December 31.

“Confidential Information” shall mean shall mean any and all non-public technical and/or commercial information in tangible or non-tangible form which is disclosed or made

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available by one Party to the other Party for the purposes of this Agreement. Confidential Information shall include information, in any form and regardless of whether it was developed by a Party or acquired through a license, agreement or otherwise, which is not generally known to the public, including without limitation any data, know-how, formulations, techniques, equipment, methods, results, information regarding sources of supply, business plans, partners, clients, potential agreements and the existence, scope and activities of any research,

development, manufacturing, marketing, or other projects, patent applications, trade secrets and other similar information with like characteristics. Confidential Information also includes, but is not limited to, formulae, compositions, specifications, designs, ideas, software, algorithms, methodologies, machine readable data, production and quality control methods, processes, techniques, customer lists, sales leads, sales plans, market information, roadmaps, business policies or practices, and other technical and/or commercial information and data, as well as product samples. Confidential Information does not include information that can be established by the other Party by competent proof that such information: (a) is generally available to the public through no fault of such Party; (b) was known by such Party prior to receipt thereof as evidenced by prior written documents in the possession of such Party; (c) is subsequently disclosed to such Party in good faith by a third party who is not under an obligation of

confidentiality as to the information disclosed; or (d) was or is independently developed by such Party without reliance upon any Confidential Information of the disclosing Party.

“Covered Products” shall have the meaning set forth in Section 6.1.2. “Development Plan” shall have the meaning set forth in Section 3.1.

“Development Responsibilities” shall have the meaning set forth in Section 3.1. “Dispute” shall have the meaning set forth in Section 9.4.

“Effective Date” shall have the meaning set forth in the first paragraph of this Agreement “External Contractor” shall have the meaning set forth in Section 4.13.

“Force Majeure” shall have the meaning set forth in Section 15.9.

“Intellectual Property” shall mean any and all patents and patent applications,

copyrights, author’s rights, works of authorship, moral rights, trademarks, service marks, mask works, trade secrets, ideas, inventions, know-how, processes, methods, formulations, concepts, inventions, discoveries, proprietary information, software, processes, improvements,

developments, results, discoveries, designs, patterns, devices, diagrams, charts, drawings, specifications, documentation, data, plans, reports and/or other like information or items, along with any and all patent applications, registrations, renewals, divisionals, continuations, reissues and extensions therefor in the United States and foreign countries and any other intellectual property rights of a Party.

“IP Claim” shall have the meaning set forth in Section 12.

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“Jointly Established Sales Targets” shall mean the targets set forth in Schedule 7.3 “Joint Marketing Material” shall have the meaning set forth in Section 4.11. “PARTNERA Existing IP” shall mean any Intellectual Property brought to the relationship by PARTNERA and set forth in Schedule 6.1.1.

“PARTNERA Indemnitees” shall have the meaning set forth in Section 12.1. “PARTNERA Member Firms” shall mean the global network of professional firms which are members of PARTNERA International.

“Management Committee” shall have the meaning set forth in Section 9.

“New Solely-Owned IP” shall mean any Program Developed IP, whether patentable or not, regardless of which Party created, conceived or developed it, that is solely a derivative or improvement of a single Party’s Background IP or product(s), for purposes other than integrating the products or Background IP of more than one Party.

“Party” shall mean PARTNERA or PartnerB . When used in the plural form, the term shall mean PARTNERA and PartnerB collectively. For the purposes of this agreement, an Affiliate of any Party which that Party utilizes to carry out its obligations pursuant to this Agreement, shall be considered that Party.

“Program Developed Intellectual Property” or “Program Developed IP” shall mean all Intellectual Property any Party, conceives, creates or develops in the performance of the Development Plan.

“Residuals” shall have the meaning set forth in Section 6.11. “Royalty Payment” shall have the meaning set forth in Section 7.1. “Rules” shall have the meaning set forth in Section 1.3.

“Task” shall have the meaning set forth in Section 3.1. “Term” shall have the meaning set forth in Section 11.1. “Vendor” shall have the meaning set forth in Section 3.5.

3. Joint Development Responsibilities

Each Party agrees to assume the respective responsibility for overseeing and performing specific development activities in connection with a “Development Plan” to be further defined and attached as Schedule 3.1 as set forth in this Section.

3.1 Development Plan. To effectively cooperate and collaborate in the development of the Alliance, the Parties seek to perform pursuant to a Development Plan (to be attached as a Schedule), identifying the following: (1) specific tasks, including without limitation,

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development of software or hardware and testing of such software or hardware each Party is to complete in performing its Development Responsibilities (“Task”); (2) requirements, if any, for the satisfactory completion of a Task; (3) development milestones for the completion of certain Tasks; (4) procedures for each Party to test, review or otherwise approve, at its option, of Tasks completed by the other Party; (5) the start date for the Development Plan; (6) prototype

development and production rollout schedule; (7) requisite regulatory submissions and

approvals; (8) necessary agreements in place; and (9) flexibility for delays not the responsibility of the parties) (“Development Plan”). Each Party agrees to use its best efforts to negotiate and prepare, on or before the [third month] anniversary of the Effective Date, a mutually agreeable Development Plan. If the Parties are not able to enter into a mutually agreeable Development Plan on or before such anniversary, the Parties may mutually agree to extend such deadline if they believe that a mutually agreeable Development Plan can be agreed to.

3.2 PartnerB Development Responsibilities. PartnerB agrees to configure,

customize, parametrize, and enhance (as needed) the PartnerB Products as well as for specific client needs. PartnerB will make available all resources necessary to support PARTNERA’s efforts in connection with the PartnerB Strategic Product. In addition, PartnerB will provide both sales and end-to-end training on its system to PARTNERA. In the case where the PartnerB solution is deployed on third-party hosted or Cloud provider environments, PartnerB is fully responsible for the reasonable supervision and oversight of the application and associated customer data with the solutions described in this contract. PartnerB is also responsible for ensuring that the appropriate contracts are in place with the client to represent the known

technology, data, security, and availability risks inherent in third-party hosted or Cloud provider environments.

3.3 PARTNERA Development Responsibilities. PARTNERA agrees to make available professionals with knowledge and experience most applicable to addressing client needs for complying with the Rules. PARTNERA will provide the rule’s business requirements analysis, report specifications, user acceptance testing, and QA / business-level (i.e., not related to software development or programming) testing and QA of the business rules functionality of, and the results provided by, the PartnerB Strategic Product, and will consult with PartnerB on the PartnerB Strategic Product configuration / parameters (including advising on dashboard / support testing, and on provision of report specifications suitable to each client’s configuration).

3.4 Development Milestones. The Parties understand and agree that the completion of their respective responsibilities in the Development Plan shall be pursued in accordance with Development Plan’s milestones. The Development Plan’s milestones will have been determined and agreed upon between the Parties based on information available at the Effective Date of this Agreement, and the Parties agree that the Development Plan’s milestones are commercially reasonable. Notwithstanding the foregoing, the Parties acknowledge that information not known upon the Effective Date may affect the reasonableness of one or more Development Plan’s milestones, and that a Party may seek an extension or other modification of one or more Development Plan milestones by obtaining consent of the Management Committee.

3.5 Vendor Relationships. Each Party agrees that it will permit the other Party to have access to, and develop working relationships with, existing vendors of such Party

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(“Vendor”) for the purpose of allowing the other Party to perform its Development

Responsibilities; provided, however, that no Party may act or attempt to act to disrupt, terminate or materially change any relationship of the other Party with a Vendor.

3.6 Joint Development. The Parties shall work together jointly and collaboratively to develop PartnerB Strategic Product.

3.7 Information Exchange. The Parties will use commercially reasonable efforts to jointly facilitate information exchange among the Parties in connection with the development, expansion, growth and promotion of the Alliance.

4. Joint Marketing and Sales Responsibilities

4.1 Joint Business Plan. The relationship sponsors from PARTNERA and PartnerB will create a Joint Business Plan and meet as frequently as necessary, but not less than once per quarter to review the performance of the relationship. If performance is not meeting

expectations, a new Joint Business Plan will be developed or the relationship will be terminated. The Joint Business Plan (to be attached as Schedule 4.1) will describe the responsibilities of each party in promoting and selling the PartnerB Strategic Product and provide milestones for key marketing activities.

4.2 Marketing and Sales. Both Parties will establish and maintain a target client list and actively participate in marketing and selling efforts as mutually agreed.

4.3 Joint Business Plan Activities. The Parties agree to use to use their best efforts to negotiate and prepare, on or before the three (3) month anniversary of the Effective Date, a mutually agreeable Joint Business Plan for the marketing and commercialization of PartnerB Strategic Product. The Joint Business Plan shall include, among other things: (1) primary responsibilities of each Party in performing the Joint Business Plan; (2) allocation of costs associated with performing the Joint Business Plan; (3) standard terms and conditions for sublicensing the Intellectual Property to third parties; (4) procedures for approving proposed sublicenses of the Covered Products. Upon completion of the Joint Business Plan, each Party agrees to use commercially reasonable efforts to satisfy its respective responsibilities. Each Party shall prepare and submit to the Management Committee on a monthly basis a status report summarizing the status of its responsibilities during the preceding month and any issues

concerning its responsibilities.

4.4 Sales Channels. PARTNERA and PartnerB agree to utilize their considerable marketing and sales channels to promote and assist each other in securing new clients for PartnerB Products. This assistance includes, but is not limited to, training each other’s sales personnel on the offering, presenting the services to each other’s clients during independent sales calls and other independent sales efforts, and conducting joint sales calls, efforts, and events with each other’s sales personnel The Joint Business Plan sets forth the specific roles and

responsibilities of each Party and a list of deliverables.

4.5 No Other Marketing Activities. Neither party will engage in marketing activities with respect to the Alliance beyond those agreed to in the Joint Business Plan without the express agreement of the other Party.

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4.6 Access to Systems and Assets. PartnerB will provide whatever system access is necessary for PARTNERA on PartnerB’s computer system to support customer demonstrations and proofs of concept.

4.7 Marketing Materials. All marketing materials will be reviewed by both parties and agreed to in a timely manner before being presented to any client or potential client.

4.9 Business Opportunities. Each Party shall keep the other Party continuouy

informed about business opportunities and related marketing activities. Each Party shall describe its progress in periodic reports submitted to and approved by the Management Committee.

4.10 Marketing Responsibilities. PARTNERA and PartnerB shall at all times during the term of this Agreement:

(a) Develop and maintain an annual Joint Business Plan, and cooperate with each other in promotional efforts, including developing and maintaining marketing tools and literature;

(b) Prepare and share quarterly marketing and product intelligence reviews covering all joint business activity including pricing strategies on an ongoing basis;

(c) Provide dedicated promotion and sales personnel of appropriate

experience and implement appropriate sales management resources and tools to deliver against targets;

(d) Actively and diligently undertake best commercial efforts to promote the sale of PartnerB Strategic Products by solicitation of inquiries and calls on customers and prospective customers to obtain inquiries, and by rendering such services as may be required to present and sell Products;

(e) Facilitate communications by and between each other and customers or prospective customers regarding PartnerB Strategic Products inquiries, orders, delivery

schedules, administrative, or other matters, and maintain records and summary reports regarding such communications with customers and prospective customers with such items to be provided promptly upon reasonable request;

(f) Provide service for existing and potential customers on a regular basis consistent with best business practices, including prompt response to customer needs;

(g) Perform administrative support functions, including but not limited to placing and managing periodic purchase orders, maintaining a database of customers and sales leads, as well as complete and accurate books and records of all transactions and activities regarding the PartnerB Strategic Products;

(h) Immediately notify each other in writing of any claim that any of the PartnerB Strategic Products infringes any patent, trademark, copyright, trade secret or similar intellectual property right;

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(i) Use only technical and promotional literature and other documentation used in connection with the marketing of the PartnerB Strategic Products which have been furnished or expressly approved by each other;

(j) Offer only warranty terms expressly approved by each for all PartnerB Strategic Products provided to customers;

(k) Take all prudent and necessary steps to develop and protect the goodwill and reputation each other;

(l) Assure compliance with all applicable laws and regulations; and

(m) Maintain customary third-party general liability and automobile liability insurance in commercially reasonable amounts at the sole cost and expense of each Party.

4.11 Ownership Rights in Marketing Materials. Each Party will retain full right, title and interest and ownership of marketing and sales materials developed solely by that Party. New jointly developed marketing and sales materials will be jointly owned by the both parties. Any publication or disclosures of marketing and/or sales materials are subject to the publicity

provisions of the Agreement. Upon termination or expiration of this Agreement, all Parties may use the Joint Marketing Material separately for the benefit of their individual businesses.

4.12 Use of Third Parties. PartnerB and PARTNERA may use any of their affiliated companies worldwide (each PartnerB-branded or PARTNERA-branded) in furtherance of the joint business relationship and to support its sales, product delivery, and product support efforts. If either Party decides to use a non-affiliated third party subcontractor, consultant, agent, or other intermediary (“External Contractor”) in connection with selling and/or delivering products and services under this agreement, the Parties shall mutually agree on the process for receiving advance approval from the other Party prior to engagement thereof.

5. Relationship of Parties

5.1 Non-Exclusivity. Unless formally agreed to elsewhere (e.g., in an addendum covering a specific initiative or a teaming agreement for a specific joint sale), the relationship is non-exclusive, but both Parties will consider the other as a preferred alliance partner when selling products and services to address their clients’ needs.

5.2 Provision of Services: Right of First Refusal. In particular, PARTNERA will have the first right of refusal to provide services associated with addressing PartnerB ’s clients’ needs. This right of first refusal will apply to all PartnerB clients approached with a solution, whether the client is an existing PartnerB client, approached only by PartnerB or jointly by PARTNERA and PartnerB. Both parties agree to alert the other of any new opportunities of which they become aware and collaboratively pursue it unless the other party is unable or

unwilling, or if the client expresses a conviction that it prefers a different vendor. Sales to clients of PartnerB solution may take place as a “Joint Pursuit” with both PartnerB and PARTNERA participating, or as an “PartnerB Pursuit” with just PartnerB participating (if PARTNERA is unable or unwilling to be involved in a Joint Pursuit).

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5.3 Investment. Unless agreed elsewhere, each Party will independently determine the amount, nature and timing of any and all investments made into this relationship, however a Quarterly Plan has to be agreed upon in advance by the Management Committee and both Parties need to adhere to the investments planned as per the Quarterly plan. Unless specified otherwise in an addendum, each Party will invest its own resources in the relationship with the expectation of profit from sales of its products and/or services. Unless specified otherwise in an addendum, neither Party will be obliged to make the other whole or provide compensation for the other Party’s investment.

5.4 Representation. Neither party will promote this relationship, use the other Party’s name or logo or represent the relationship or other Party, without the express agreement of the other Party.

5.5 Staffing. Both Parties will staff positions necessary for the implementation of this Agreement, including all addenda, in a timely manner and with individuals of appropriate

experience, skills, character, and comport. If either Party believes that the other Party has staffed a position with someone lacking the requisite qualifications, that Party can request a joint review. If both Parties are not satisfied with the individual’s qualifications, he or she will be replaced. Each party will be responsible for managing and staffing its own resources for this program. If either Party believes that the other party has staffed a position with someone lacking the requisite qualifications and ability to work as a part of an integrated team by promoting trust and

confidence in the joint relationship, it will be handled through an Executive review process by the Management Committee and he or she will be replaced.

5.6 Sponsors. This Agreement will specify the senior-level Sponsors for the relationship and how succession will occur.

5.7 Affiliates. Each Party shall be responsible for ensuring that its Affiliates who receive information pursuant to this Agreement or carry out any tasks pursuant to this Agreement have a copy of this Agreement and that the Affiliates adhere to the terms of the Agreement. Each Party shall be responsible for any obligations that its Affiliate agrees to perform pursuant to this Agreement.

5.8 Publicity and News Releases. Any news release, public announcement,

advertisement or publicity concerning this Agreement, released by either Party shall provide the proper and equal credit to the other as a separate and independent corporate entity. No news release, public announcement, advertisement or publicity concerning this Agreement, any proposals, any resulting contracts, or any subcontracts to be carried out hereunder, shall be released by either Party without the prior written approval of both parties, except to the extent required by law. Either Party may describe this Agreement in and append it to regulatory filings made with U. S. and other governmental agencies, provided that the other Party has received prior written notice of any such required regulatory disclosure.

5.9 Hosting and Access to Solution. PartnerB will host the PartnerB Products during the initial development of each successive upgrade and/or addition. At all times, PARTNERA will have access rights to review, demo, use or otherwise access the

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