<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(Amendment No. 1)
[X] Annual report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the Fiscal Year ended December 31, 1996
or
[ ] Transition report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the transition period from______________to
_______________
COMMISSION FILE NUMBER: 0-20937
PHOENIX INTERNATIONAL LTD., INC.
(Exact name of Registrant as specified in its charter)
Florida 59-3171810
(State of other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
500 International Parkway, Heathrow, Florida 32746
(Address of principal executive offices) (Zip Code)
(Registrant's telephone number including area code): (407) 548-5100
Securities registered pursuant to Section 12(b) of the Act:
None None
(Title of each class) (Name of each exchange on which registered)
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, Par Value $0.01 Per Share
(Title of class)
Indicate by check mark whether the Registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports); and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
--- ---
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
The estimated aggregate market value of the voting stock held by non-affiliates
of the Registrant, based upon the closing sale price of Common Stock on March
18, 1997, as reported on the Nasdaq Stock Market's National Market, was
approximately $49,516,000. As of March 18, 1997, the Registrant had outstanding
3,862,721 shares of Common Stock.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the 1996 Annual Report to Shareholders of the Registrant are
incorporated by reference in Part II of this Form 10-K, and portions of the
Proxy Statement for the Registrant's 1997 Annual Meeting of Shareholders to be
held on May 16, 1997 are incorporated by reference in Part III of this Form
10-K.
<PAGE> 2
INDEX OF FORM 10-K/A
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PART IV
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Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K..............3
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<PAGE> 3
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
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(b) Exhibits
3.1 Amended and Restated Articles of Incorporation (incorporated by
reference to Exhibit 3.1 of the Company's Form 10-Q, dated August
14, 1996, File No. 0-2937 (the "Second Quarter 10-Q")).
3.2 Amended and Restated Bylaws (incorporated by reference to Exhibit
3.2 of the Second Quarter 10-Q).
4.1 See Exhibits 3.1 and 3.2 for provisions of the Amended and
Restated Articles of Incorporation and Amended and Restated Bylaws
defining the rights of the holders of Common Stock of the Company.
10.1 Phoenix International Ltd., Inc. 1995 Employee Stock Option Plan,
effective as of March 18, 1995 (incorporated by reference to Exhibit
10.12 of the Company's Registration Statement on Form S-1
(Registration No. 33-03355), as declared effective by the Securities
and Exchange Commission on July 1, 1996 (the "Registration
Statement").*
10.2 Amendment, dated May 24, 1996, to the Phoenix International Ltd.,
Inc. 1995 Employee Stock Option Plan, effective March 18, 1995
(incorporated by reference to Exhibit 10.43 of the Registration
Statement).*
10.3 Phoenix International Ltd., Inc. 1995 Employee Stock Option Plan,
effective as of October 21, 1995 (incorporated by reference to
Exhibit 10.13 of the Registration Statement).*
10.4 Amendment, dated May 24, 1996, to the Phoenix International Ltd.,
Inc. 1995 Employee Stock Option Plan, effective October 21, 1995
(incorporated by reference to Exhibit 10.44 of the Registration
Statement).*
10.5 Revised Form of Stock Option Agreement for the Phoenix International
Ltd., Inc. 1995 Employee Stock Option Plan, effective October 21,
1995 (incorporated by reference to Exhibit 10.45 of the
Registration Statement).*
10.6 Phoenix International Ltd., Inc. 1996 Director Stock Option Plan
(incorporated by reference to Exhibit 10.46 of the Registration
Statement).*
10.7 Form of Stock Option Agreement under the Phoenix International Ltd.,
Inc. 1996 Director Stock Option Plan (incorporated by reference to
Exhibit 4.7 of the Company's Registration Statement on Form S-8, as
declared effective by the Securities and Exchange Commission on
December 31, 1996).*
10.8 Form of the Company's Director Indemnity Agreement (incorporated by
reference to Exhibit 10.47 of the Registration Statement).
10.9 Employment Agreement by and between the Company and Bahram
Yusefzadeh, dated December 28, 1995 (incorporated by reference to
Exhibit 10.14 of the Registration Statement).*
10.10 First Amendment to Employment Agreement by and between the Company
and Bahram Yusefzadeh, dated May 22, 1996 (incorporated by reference
to Exhibit 10.15 of the Registration Statement).*
10.11 Employment Agreement by and between the Company and Ralph Reichard,
dated December 18, 1995 (incorporated by reference to Exhibit 10.16
of the Registration Statement).*
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<PAGE> 4
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10.12 First Amendment to Employment Agreement by and between the Company
and Ralph Reichard, dated May 22, 1996 (incorporated by reference to
Exhibit 10.17 of the Registration Statement).*
10.13 Employment Agreement by and between the Company and Clay E.
Scarborough, dated May 23, 1996 (incorporated by reference to
Exhibit 10.18 of the Registration Statement).*
10.14 Employment Agreement by and between the Company and Michael R.
Newes, dated April 12, 1996 (incorporated by reference to Exhibit
10.19 of the Registration Statement).*
10.15 Employment Agreement by and between the Company and Gerald P.
Nissen, dated April 12, 1996 (incorporated by reference to Exhibit
10.20 of the Registration Statement).*
10.16 Employment Agreement by and between the Company and Twanna C.
Soifer, dated April 12, 1996 (incorporated by reference to Exhibit
10.21 of the Registration Statement).*
10.17 Employment Agreement by and between the Company and Harold C.
Boughton, dated June 3, 1996 (incorporated by reference to Exhibit
10.1 of the Second Quarter 10-Q).*
10.18 Employment Agreement by and between the Company and Raju M.
Shivdasani, dated July 15, 1996 (incorporated by reference to
Exhibit 10.2 of the Second Quarter 10-Q).*
10.19 Form of Employee Confidentiality Agreement (incorporated by
reference to Exhibit 10.19 of the Company's Annual Report on
Form 10-K, dated March 25, 1997, File No: 0-20937 (the "1996
10-K")).
10.20 Form of Promissory Note for employee loans from the Company
(incorporated by reference to Exhibit 10.54 of the Registration
Statement).
10.21 Form of Stock Pledge and Security Agreement for employee loans from
the Company (incorporated by reference to Exhibit 10.55 of the
Registration Statement).
10.22 OEM Software License Agreement, dated June 30, 1995, between the
Company and Gupta Corporation (incorporated by reference to Exhibit
10.26 of the Registration Statement).+
10.23 Value Added Remarketer Agreement, dated October 13, 1993, between
the Company and Sybase, Inc. (incorporated by reference to Exhibit
10.27 of the Registration Statement).+
10.24 Software License Agreement between the Company and Unisys
Corporation, dated March 16, 1996 (incorporated by reference to
Exhibit 10.28 of the Registration Statement).+
10.25 First Amendment to Software License Agreement between the Company
and Unisys Corporation, dated December 27, 1996.++
10.26 General Agreement for Strategic Relationship between the Company and
Hewlett-Packard Company, dated April 30, 1993 (incorporated by
reference to Exhibit 10.29 of the Registration Statement).+
10.27 Form of Software License Agreement (incorporated by reference to
Exhibit 10.30 of the Registration Statement).+
10.28 Form of International Software License Agreement (incorporated by
reference to Exhibit 10.31 of the Registration Statement).+
10.29 Form of Disaster Recovery Service Agreement (incorporated by
reference to Exhibit 10.32 of the Registration Statement).+
10.30 Form of Software Deposit Agreement (incorporated by reference to
Exhibit 10.33 of the Registration Statement).+
10.31 Form of Confidentiality and Non-Disclosure Agreement (incorporated
by reference to Exhibit 10.34 of the Registration Statement).
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<PAGE> 5
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10.32 Form of Confidentiality Agreement (incorporated by reference to
Exhibit 10.35 of the Registration Statement).
10.33 Form of Mutual Non-Disclosure Agreement (incorporated by reference
to Exhibit 10.36 of the Registration Statement).
10.34 Form of Confidentiality/Non-Disclosure Agreement Remitting Access to
System Documentation and Data Files for Data Conversion
(incorporated by reference to Exhibit 10.37 of the Registration
Statement).
10.35 Form of Phoenix International Ltd., Inc. Confidentiality Agreement
(incorporated by reference to Exhibit 10.38 of the Registration
Statement).
10.36 Standard Commercial Lease, dated December 8, 1993, between the
Company and ABR Spectrum, Ltd. with respect to Suite 140, 900
Winderley Place, Maitland, Florida premises, as modified January 24,
1994 (incorporated by reference to Exhibit 10.39 of the Registration
Statement).
10.37 Lease Termination Agreement, dated February 12, 1997, between the
Company and ABR Spectrum, Ltd. (incorporated by reference to Exhibit
10.37 of the 1996 10-K).
10.38 Sublease Agreement, dated September 28, 1995, between the Company
and CCS Technology Group, Inc. with respect to Suite 120, 900
Winderley Place, Maitland, Florida premises (incorporated by
reference to Exhibit 10.40 of the Registration Statement).
10.39 The Principal Financial Group Prototype for Savings Plans (401k), as
amended, and the Group Annuity Contract for the Company
(incorporated by reference to Exhibit 10.41 of the Registration
Statement).*
10.40 Remarketing Agreement and Support Authorization, dated as of April
22, 1996, between the Company and Computer Systems Associates
(Nigeria) Limited (incorporated by reference to Exhibit 10.42 of the
Registration Statement) (the "CSA Agreement").+
10.41 Lease Agreement, dated September 11, 1996, between the Company and
500 International Parkway Development Company (incorporated by
reference to Exhibit 10.1 of the Company's Form 10-Q, dated November
5, 1996, File No. 0-2937).
10.42 Cooperative Marketing Agreement, dated September 5, 1996, between
the Company and The Netcomm Group, Inc.++
10.43 Cooperative Marketing Agreement, dated October 2, 1996, between the
Company and ISC Financial Systems, Inc.++
10.44 Stock Purchase Agreement, dated March 5, 1997, between the Company
and Dyad Corporation.++
10.45 License and Distribution Agreement, dated March 5, 1997, between the
Company and Dyad Corporation.++
10.46 License and Marketing Agreement, dated November 26, 1997, between
the Company and Integrated Financial Services, Inc.++
10.47 Form of Software License Agreement used in connection with the CSA
Agreement (incorporated by reference to Exhibit 10.47 of the 1996
10-K).
11.1 Statement re: Computation of Per Share Earnings (incorporated by
reference to Exhibit 11.1 of the 1996 10-K).
13.1 Registrant's 1996 Annual Report to Shareholders (incorporated by
reference to Exhibit 13.1 of the 1996 10-K).
21.1 Subsidiaries of the Company (incorporated by reference to Exhibit
21.1 of the 1996 10-K).
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<PAGE> 6
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23.1 Consent of Ernst & Young LLP (incorporated by reference to Exhibit
23.1 of the 1996 10-K).
24.1 Power of Attorney (incorporated by reference to Exhibit 24.1 of the
1996 10-K)
27.1 Financial Data Schedule (for Commission purposes only) (incorporated
by reference to Exhibit 27.1 of the 1996 10-K)
---------------
+ Confidential treatment previously granted.
++ Confidential treatment has been requested for certain confidential
portions of this exhibit. These confidential portions have been
omitted from this exhibit and filed separately with the Commission.
* This agreement is a compensatory plan or arrangement required to be
filed as an exhibit to this Form 10-K pursuant to Item 14(c).
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<PAGE> 7
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this Report to be signed on
its behalf by the undersigned, thereto duly authorized.
Phoenix International Ltd., Inc.
May 20, 1997 By: /s/ Bahram Yusefzadeh
- ---------------------------- ------------------------------------------------
Date Bahram Yusefzadeh
Chairman and Chief Executive Officer
<PAGE> 8
EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION PAGE
- ------ ----------- ----
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3.1 Amended and Restated Articles of Incorporation (incorporated by
reference to Exhibit 3.1 of the Company's Form 10-Q, dated August 14,
1996, File No. 0-2937 (the "Second Quarter 10-Q")).
3.2 Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2
of the Second Quarter 10-Q).
4.1 See Exhibits 3.1 and 3.2 for provisions of the Amended and Restated
Articles of Incorporation and Amended and Restated Bylaws defining
the rights of the holders of Common Stock of the Company.
10.1 Phoenix International Ltd., Inc. 1995 Employee Stock Option Plan,
effective as of March 18, 1995 (incorporated by reference to Exhibit
10.12 of the Company's Registration Statement on Form S-1
(Registration No. 33- 03355), as declared effective by the Securities
and Exchange Commission on July 1, 1996 (the "Registration
Statement").*
10.2 Amendment, dated May 24, 1996, to the Phoenix International Ltd., Inc.
1995 Employee Stock Option Plan, effective March 18, 1995
(incorporated by reference to Exhibit 10.43 of the Registration
Statement).*
10.3 Phoenix International Ltd., Inc. 1995 Employee Stock Option Plan,
effective as of October 21, 1995 (incorporated by reference to Exhibit
10.13 of the Registration Statement).*
10.4 Amendment, dated May 24, 1996, to the Phoenix International Ltd., Inc.
1995 Employee Stock Option Plan, effective October 21, 1995
(incorporated by reference to Exhibit 10.44 of the Registration
Statement).*
10.5 Revised Form of Stock Option Agreement for the Phoenix International
Ltd., Inc. 1995 Employee Stock Option Plan, effective October 21, 1995
(incorporated by reference to Exhibit 10.45 of the Registration
Statement).*
10.6 Phoenix International Ltd., Inc. 1996 Director Stock Option Plan
(incorporated by reference to Exhibit 10.46 of the Registration
Statement).*
10.7 Form of Stock Option Agreement under the Phoenix International Ltd.,
Inc. 1996 Director Stock Option Plan (incorporated by reference to
Exhibit 4.7 of the Company's Registration Statement on Form S-8, as
declared effective by the Securities and Exchange Commission on
December 31, 1996).*
10.8 Form of the Company's Director Indemnity Agreement (incorporated by
reference to Exhibit 10.47 of the Registration Statement).
10.9 Employment Agreement by and between the Company and Bahram Yusefzadeh,
dated December 28, 1995 (incorporated by reference to Exhibit 10.14 of
the Registration Statement).*
10.10 First Amendment to Employment Agreement by and between the Company and
Bahram Yusefzadeh, dated May 22, 1996 (incorporated by reference to
Exhibit 10.15 of the Registration Statement).*
10.11 Employment Agreement by and between the Company and Ralph Reichard,
dated December 18, 1995 (incorporated by reference to Exhibit 10.16 of
the Registration Statement).*
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EXHIBIT
NUMBER DESCRIPTION PAGE
- ------ ----------- ----
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10.12 First Amendment to Employment Agreement by and between the Company and
Ralph Reichard, dated May 22, 1996 (incorporated by reference to
Exhibit 10.17 of the Registration Statement).*
10.13 Employment Agreement by and between the Company and Clay E.
Scarborough, dated May 23, 1996 (incorporated by reference to Exhibit
10.18 of the Registration Statement).*
10.14 Employment Agreement by and between the Company and Michael R. Newes,
dated April 12, 1996 (incorporated by reference to Exhibit 10.19 of
the Registration Statement).*
10.15 Employment Agreement by and between the Company and Gerald P. Nissen,
dated April 12, 1996 (incorporated by reference to Exhibit 10.20 of
the Registration Statement).*
10.16 Employment Agreement by and between the Company and Twanna C. Soifer,
dated April 12, 1996 (incorporated by reference to Exhibit 10.21 of
the Registration Statement).*
10.17 Employment Agreement by and between the Company and Harold C.
Boughton, dated June 3, 1996 (incorporated by reference to Exhibit
10.1 of the Second Quarter 10-Q).*
10.18 Employment Agreement by and between the Company and Raju M.
Shivdasani, dated July 15, 1996 (incorporated by reference to Exhibit
10.2 of the Second Quarter 10-Q).*
10.19 Form of Employee Confidentiality Agreement (incorporated by reference
to Exhibit 10.19 of the Company's Annual Report on Form 10-K, dated
March 25, 1997, file No. 0-20937 (the "1996 10-K")).
10.20 Form of Promissory Note for employee loans from the Company
(incorporated by reference to Exhibit 10.54 of the Registration
Statement).
10.21 Form of Stock Pledge and Security Agreement for employee loans from
the Company (incorporated by reference to Exhibit 10.55 of the
Registration Statement).
10.22 OEM Software License Agreement, dated June 30, 1995, between the
Company and Gupta Corporation (incorporated by reference to Exhibit
10.26 of the Registration Statement).+
10.23 Value Added Remarketer Agreement, dated October 13, 1993, between the
Company and Sybase, Inc. (incorporated by reference to Exhibit 10.27
of the Registration Statement).+
10.24 Software License Agreement between the Company and Unisys Corporation,
dated March 16, 1996 (incorporated by reference to Exhibit 10.28 of
the Registration Statement).+
10.25 First Amendment to Software License Agreement between the Company and
Unisys Corporation, dated December 27, 1996.++
10.26 General Agreement for Strategic Relationship between the Company and
Hewlett-Packard Company, dated April 30, 1993 (incorporated by
reference to Exhibit 10.29 of the Registration Statement).+
10.27 Form of Software License Agreement (incorporated by reference to
Exhibit 10.30 of the Registration Statement).+
</TABLE>
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<TABLE>
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EXHIBIT
NUMBER DESCRIPTION PAGE
- ------ ----------- ----
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10.28 Form of International Software License Agreement (incorporated by
reference to Exhibit 10.31 of the Registration Statement).+
10.29 Form of Disaster Recovery Service Agreement (incorporated by reference
to Exhibit 10.32 of the Registration Statement).+
10.30 Form of Software Deposit Agreement (incorporated by reference to
Exhibit 10.33 of the Registration Statement).+
10.31 Form of Confidentiality and Non-Disclosure Agreement (incorporated by
reference to Exhibit 10.34 of the Registration Statement).
10.32 Form of Confidentiality Agreement (incorporated by reference to
Exhibit 10.35 of the Registration Statement).
10.33 Form of Mutual Non-Disclosure Agreement (incorporated by reference to
Exhibit 10.36 of the Registration Statement).
10.34 Form of Confidentiality/Non-Disclosure Agreement Remitting Access to
System Documentation and Data Files for Data Conversion (incorporated
by reference to Exhibit 10.37 of the Registration Statement).
10.35 Form of Phoenix International Ltd., Inc. Confidentiality Agreement
(incorporated by reference to Exhibit 10.38 of the Registration
Statement).
10.36 Standard Commercial Lease, dated December 8, 1993, between the Company
and ABR Spectrum, Ltd. with respect to Suite 140, 900 Winderley Place,
Maitland, Florida premises, as modified January 24, 1994 (incorporated
by reference to Exhibit 10.39 of the Registration Statement).
10.37 Lease Termination Agreement, dated February 12, 1997, between the
Company and ABR Spectrum, Ltd. (incorporated by reference to Exhibit
10.37 of the 1996 10-K).
10.38 Sublease Agreement, dated September 28, 1995, between the Company and
CCS Technology Group, Inc. with respect to Suite 120, 900 Winderley
Place, Maitland, Florida premises (incorporated by reference to
Exhibit 10.40 of the Registration Statement).
10.39 The Principal Financial Group Prototype for Savings Plans (401k), as
amended, and the Group Annuity Contract for the Company (incorporated
by reference to Exhibit 10.41 of the Registration Statement).*
10.40 Remarketing Agreement and Support Authorization, dated as of April 22,
1996, between the Company and Computer Systems Associates (Nigeria)
Limited (incorporated by reference to Exhibit 10.42 of the
Registration Statement) (the "CSA Agreement").+
10.41 Lease Agreement, dated September 11, 1996, between the Company and 500
International Parkway Development Company (incorporated by reference
to Exhibit 10.1 of the Company's Form 10-Q, dated November 5, 1996,
File No. 0-2937).
10.42 Cooperative Marketing Agreement, dated September 5, 1996, between the
Company and The Netcomm Group, Inc.++
10.43 Cooperative Marketing Agreement, dated October 2, 1996, between the
Company and ISC Financial Systems, Inc.++
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION PAGE
- ------ ----------- ----
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10.44 Stock Purchase Agreement, dated March 5, 1997, between the Company and
Dyad Corporation.++
10.45 License and Distribution Agreement, dated March 5, 1997, between the
Company and Dyad Corporation.++
10.46 License and Marketing Agreement, dated November 26, 1997, between the
Company and Integrated Financial Services, Inc.++
10.47 Form of Software License Agreement used in connection with the CSA
Agreement (incorporated by reference to Exhibit 10.47 of the 1996
10-K).
11.1 Statement re: Computation of Per Share Earnings (incorporated by
reference to Exhibit 11.1 of the 1996 10-K).
13.1 Registrant's 1996 Annual Report to Shareholders (incorporated by
reference to Exhibit 13.1 of the 1996 10-K).
21.1 Subsidiaries of the Company (incorporated by reference to Exhibit 21.1
of the 1996 10-K).
23.1 Consent of Ernst & Young LLP (incorporated by reference to Exhibit
23.1 of the 1996 10-K).
24.1 Power of Attorney (incorporated by reference to Exhibit 24.1 of the
1996 10-K).
27.1 Financial Data Schedule (for Commission purposes only) (incorporated
by reference to Exhibit 27.1 of the 1996 10-K).
</TABLE>
- ---------------
+ Confidential treatment previously granted.
++ Confidential treatment has been requested for certain confidential
portions of this exhibit. These confidential portions have been
omitted from this exhibit and filed separately with the Commission.
* This agreement is a compensatory plan or arrangement required to be
filed as an exhibit to this Form 10-K pursuant to Item 14(c).
<PAGE> 1
EXHIBIT 10.25
CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
FIRST AMENDMENT TO THE
SOFTWARE LICENSE AGREEMENT
BETWEEN
UNISYS CORPORATION
AND
PHOENIX INTERNATIONAL LTD, INC.
This First Amendment to the Software License Agreement (this
"Agreement") is entered into as of this 27th day of December, 1996 (the
"Effective Date") by and between Unisys Corporation ("Unisys"), with offices at
7000 West Palmetto Park Road, Suite 201, Boca Raton, Florida 33433; and Phoenix
International Ltd, Inc. ("Phoenix"), with offices at 900 Winderley Place, Suite
140, Maitland, Florida 32751.
WITNESSETH THAT:
WHEREAS, Phoenix and Unisys entered into that certain Software License
Agreement earlier in 1996 (the "Original Agreement"; the Original Agreement as
amended by this Amendment is referred to as the "Agreement"); and
WHEREAS, the parties wish to make certain changes to the Original
Agreement by this Amendment;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto, intending to be legally bound by the provisions
hereof, hereby agree as follows:
I. Section 2.1(2) shall be replaced in its entirety with the following,
so as to stipulate the license fee to be paid by each End User that is provided
with Source Code for the Package, and to enumerate the restrictions applicable
to such End User's use of the Source Code:
Grant End Users sublicenses to the Package and Documentation
pursuant to License Agreements. To the extent so provided in
the applicable License Agreements, such sublicenses may extend
after termination of this Agreement, notwithstanding the
limited term of this Agreement. License Agreements may
include a license for, or an option to license, Source Code
obtainable or exercisable upon payment of a Source Code
license fee in an
First Amendment to Software License Agreement
between Unisys Corporation and Phoenix International Ltd., Inc.
<PAGE> 2
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
amount XXXXXXXXXXXXXXXXXXXXXXXX (or, if the price or other
terms for the Source Code license prove to XXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX as the parties may
mutually agree on a case-by-case basis). Each Source Code
license must contain restrictions on use and disclosure,
provisions for ownership and protection of intellectual
property rights, and provisions for term and termination
before such Source Code license is granted or exercised. The
Source Code license fee shall be shared by the parties as
provided in Part I of Addendum B. Except as provided pursuant
to such a Source Code option or license, the End User shall
not be permitted to receive access to or delivery of Source
Code for the Package.
II. Section 3.3 shall be replaced in its entirety with the following, so
as to amend the minimum sublicensing criteria that Unisys must satisfy in order
to maintain exclusivity otherwise provided in Section 3.1 hereof:
3.3 The exclusivity described in Section 3.1 applicable in the
Territory shall continue until December 31, 1998 and
thereafter shall automatically renew for additional periods of
one (1) year each so long as the term of this Agreement
continues and Unisys sublicenses XXXXXXXXXXXX:
XXXXXXXXXXXXXX by December 31, 1998
XXXXXXXXXXXXXX by December 31, 1999
The minimum number of copies of the Package required to be
sublicensed in order for Unisys to maintain exclusivity in
renewal years extending on or after January 1, 2000 shall be
determined in accordance with Section 5.2 hereof.
For purposes of this paragraph, a "sublicense" means the
execution by the End User of a License Agreement for the
Package that provides for payment to Unisys of license fees in
accordance with Section 6.2 hereof sufficient to meet the per
copy and branch minimum royalty requirements established for
the Package as set forth in Addendum B hereto.
Sublicenses granted to Off-Shore Banks or any other End User
that does not agree to pay license and branch fees sufficient
for Phoenix to receive at least the minimum royalties set
forth in Addendum B hereto shall not be counted as sublicenses
of a copy of the Package for purposes of the exclusivity
criteria set forth in this paragraph, unless otherwise agreed
by
First Amendment to Software License Agreement
between Unisys Corporation and Phoenix International Ltd., Inc.
2
<PAGE> 3
Phoenix in writing in advance.
If the Territory is hereafter expanded, the provisions under
which Unisys may obtain and maintain exclusivity (if
applicable) in additional areas shall be as agreed to by the
parties in the amendment providing for such expansion.
III. Section 4.2 shall be replaced in its entirety with the following, so
as to modify the conditions under which Unisys may market software products
which may be competitive with the Package:
4.2 Notwithstanding Section 4.1 hereof, the parties agree that
Unisys may market the SFB Product (or other software product
which may be competitive with the Package, with the
concurrence of Phoenix, such concurrence not to be withheld
absent compelling competitive reasons) under the following
circumstances:
(1) The customer requires a mainframe-based
application; or
(2) The customer is a current user of the SFB
Product (i.e., licensed to use the SFB
Product on the Effective Date) and desires to
continue to use and license the SFB Product
(including, for purposes of this Section
4.2(2) only, versions of the SFB Product
operating in a UNIX environment); or
(3) The customer indicates that the Package is
priced outside of the upper limits of the
customer's budgetary envelope (which the SFB
Product or another competitive software
product would otherwise satisfy); or
(4) The parties hereto mutually determine that
the Package cannot support the number of
branches requested by the End User (and for
such purpose, it is mutually acknowledged
that a single implementation of the Package
would not support more than 75 branches,
although the parties hereto may hereafter
determine that a greater or lesser number
should apply in view of practical experience
and plans, including Changes made or proposed
from time to time); or
First Amendment to Software License Agreement
between Unisys Corporation and Phoenix International Ltd., Inc.
3
<PAGE> 4
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
(5) The customer is one of up to 10 prospective
customers of Unisys for which Unisys has
already provided significant marketing
effort, as identified on a list to be
provided to Phoenix by March 22, 1996.
In no event, however, without Phoenix's prior written consent,
(a) may the Package or Documentation be provided to an End
User to be used concurrently with a competitive software
product, including the SFB Product, unless the package is
being used concurrently with a competitive software product on
a temporary basis while the Package is being implemented as a
replacement for such competitive software product or (b) may
the Package or Documentation be merged or integrated, in whole
or in part, with any competitive software product, including
the SFB Product or related SFB documentation.
IV. Sections 5.1 and 5.2 shall be replaced in their entirety with the
following, so as to modify the expiration date of the initial term and change
the minimum sublicensing criteria that Unisys must satisfy in order to maintain
exclusivity otherwise provided in Section 3.1 hereof:
5.1 The initial term of this Agreement shall commence on the
Effective Date and shall continue for an initial period ending
on December 31, 2000.
5.2 Beginning six (6) months before expiration of the initial term
and each applicable renewal term (which, unless otherwise
agreed, shall be for terms of three (3) years each), the
parties agree to commence discussion and negotiation of the
minimum number of sublicenses of the Package that have to be
generated during each year of the ensuing renewal term in
order for Unisys to maintain exclusivity (it being agreed that
Phoenix will not require such number to be greater than
XXXXXXXX per year), the minimum license fees set for each
sublicense, and other terms applicable for renewal of this
Agreement. Unless otherwise agreed, exclusivity criteria
shall be applied on a cumulative basis within each renewal
term, and Unisys shall receive credit in any renewal term for
exceeding the exclusivity criteria in any prior term. Subject
to agreement on such additional terms, and provided that each
party is otherwise in compliance with the terms of this
Agreement and that Unisys has continuously satisfied the
criteria necessary to maintain exclusivity otherwise provided
in Section 3.1 hereof, this Agreement shall automatically
renew for a further period of three (3) years upon expiration
of the initial term and each renewal term.
First Amendment to Software License Agreement
between Unisys Corporation and Phoenix International Ltd., Inc.
4
<PAGE> 5
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
V. Section 6.1 shall be replaced in its entirety with the following, so
as to modify the amount, terms of payment, and credit terms for the initial
royalties applicable for the Package and Documentation and certain other
deliverables:
1. For delivery of a copy of the Package and Documentation in its
then-existing form (Delivery #1) to Unisys upon execution of
the Agreement, and in consideration of the license granted to
Unisys in Section 2.1 with respect thereto, Unisys agrees to
pay Phoenix an initial royalty for the Package and
Documentation, in its existing form, XXXXXXXXXXXXXX, which the
parties acknowledge has been paid in full.
2. For delivery of Unisys Release 1.3.7 of the Package (Delivery
#2), scheduled to occur within fifteen (15) days after
execution of this Amendment, and in consideration of the
license granted to Unisys in Section 2.1 with respect thereto,
Unisys agrees to pay Phoenix the sum of XXXXXXXXXX.
3. For delivery of Unisys Release 2.0 of the Package, (Delivery
#3), scheduled to occur by March 15, 1997, and in
consideration of the license granted to Unisys in Section 2.1
with respect thereto, Unisys agrees to pay Phoenix the sum of
XXXXXX.
Payment of the foregoing amounts shall be made as follows:
<TABLE>
<CAPTION>
Amount Payment Date
------ ------------
<S> <C> <C>
Delivery 2 XXXXXXX XXXXXXXXXXXXXXXXXXXXX
XXXXXXX XXXXXXXXXXXXXXXXXXXXX
XXXXXXX XXXXXXXXXXXXXXXXXXXXX
XXXXXXX XXXXXXXXXXXXXXXXXXXXX
XXXXXXX XXXXXXXXXXXXXXXXXXXXX
XXXXXXX XXXXXXXXXXXXXXXXXXXXX
XXXXXXX XXXXXXXXXXXXXXXXXXXXX
XXXXXXX XXXXXXXXXXXXXXXXXXXXX
XXXXXXX XXXXXXXXXXXXXXXXXXXXX
XXXXXXX XXXXXXXXXXXXXXXXXXXXX
Delivery 3 XXXXXXX XXXXXXXXXXXXXXXXXXXXX
XXXXXXX XXXXXXXXXXXXXXXXXXXXX
XXXXXXX XXXXXXXXXXXXXXXXXXXXX
XXXXXXX XXXXXXXXXXXXXXXXXXXXX
XXXXXXX XXXXXXXXXXXXXXXXXXXXX
</TABLE>
First Amendment to Software License Agreement
between Unisys Corporation and Phoenix International Ltd., Inc.
5
<PAGE> 6
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
Upon delivery of each Delivery (#1 - #3), the corresponding payment
shall be fully earned, unconditionally payable on the schedule
provided above and nonrefundable; each Delivery (#1 - #3) is distinct
and executable without the necessity of subsequent Deliveries.
Such initial royalties, to the extent paid, shall be applied on
XXXXXXXXXXXXX basis as a credit for additional royalties payable under
Section 6.2 hereof, up to a limit of XXXXXXXX per sublicense, but may
not be applied to implementation, customization, or other service
charges.
To the extent royalties are actually paid by Unisys under Section 6.2
hereof (and not merely credited under Section 6.2 as provided in the
immediately preceding paragraph of this Section 6.1), then to the
extent of any outstanding balance of initial royalties payable under
this Section 6.1, the royalties paid under Section 6.2 shall be
applied on a XXXXXXXXXXXXXX basis as a credit against the outstanding
balance of initial royalties payable under this Section 6.1, up to a
limit of XXXXXXXX per sublicense, XXXXXXXXXXXXXXXXXXXXXXXXXX.
VI. New paragraphs 8.6 and 8.7 shall be added to the Agreement, to clarify
Phoenix's obligation to maintain the competitive position of the Package, as
follows:
8.6 No later than XXXXXXXXXXXXXXXXX, Phoenix shall demonstrate, to
the reasonable satisfaction of Unisys, that Changes have been
made to the Package such that it will be capable to support an
installation of at least XXXXXXXXXXXXXXXXXXXXXXX with
satisfactory performance, including such parameters as product
stability, response time, daily reconciliation, etc. If
Phoenix fails to achieve this objective by XXXXXXXXXXXXXXXXX,
Unisys shall be entitled to pay XXX XXXXXXXXXXXXXXX otherwise
payable to Phoenix in XXXX, up to an amount which does not
exceed the initial royalties paid under Section 6.1 offset by
any royalties paid to Phoenix under Section 6.2 as of
XXXXXXXXXXXXXXXXX, into an escrow account until Phoenix meets
the objective, at which time the balance will be paid to
Phoenix; provided, however, that if the objective is not met
by XXXXXXXXXXXXXXXXX, Unisys shall be entitled to retain the
proceeds of the escrow account without further obligation to
Phoenix hereunder.
8.7 No later than XXXXXXXXXXXXXXXXX, Phoenix shall demonstrate, to
the reasonable satisfaction of Unisys, that Changes have been
made to
First Amendment to Software License Agreement
between Unisys Corporation and Phoenix International Ltd., Inc.
6
<PAGE> 7
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
the Package such that it will be capable to support an
installation of at least XXXXXXXXXXXXXXXXXX with satisfactory
performance, including such parameters as product stability,
response time, daily reconciliation, etc. If Phoenix fails to
achieve this objective by XXXXXXXXXXXXXXXXX, there will be a
revision of Part I of Addendum B hereof, such that the Gross
Proceeds from license and branch fees on all License
Agreements entered into after XXXXXXX XXXX shall be paid
XXXXXXXXXX.
VII. Section 20.3 shall be replaced in its entirety with the following:
20.3 Each individual who Unisys permits to receive access to the
Source Code shall be prohibited from simultaneously
participating in any design, development or programming
activities relating to any software product or programming
that is competitive with the Package, with the sole exceptions
of (1) the SFB Product (to the extent allowed under Section
4.2 hereof), (2) such other software product or programming as
Phoenix may approve under Section 4.2 hereof, and (3) such
other product or programming as Phoenix may approve in the
future after receiving the notice required by Section 4.1
hereof.
VIII. The third and fourth paragraphs of Part I of Addendum B shall be
replaced with the following:
XXXXXXXXXXXXXXXXXXXXXXXXX from license and branch fees on all other
License Agreements.
XXXXXXXXXXXXXXXXXXXXXXXXX from the Source Code license fees paid by
End-Users prior to XXXXXXXXXXXXXX, and XXXXXXXXXXXXXXXXXXXX from the
Source Code license fees paid by End-Users after XXXXXXXXXXXXXX.
VI. The second, third and fourth paragraphs of Part II of Addendum B shall be
replaced in their entirety with the following:
XXXXXXXXXXXXXXXXXX from support and/or maintenance fees paid by all
End Users in connection with each sublicense of the Package -- for all
payments due or received from any or all End Users (regardless of when
the sublicense is executed) until 1 year after the First Conversion
Date. (For such purpose,
First Amendment to Software License Agreement
between Unisys Corporation and Phoenix International Ltd., Inc.
7
<PAGE> 8
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
the "First Conversion Date" shall mean the date on which Conversion
and implementation have been completed for the first End User
sublicensed by Unisys.)
XXXXXXXXXXXXXXXXXXXXXX from support and/or maintenance fees paid by
all End Users in connection with each sublicense of the Package -- for
all payments due or received for all payments due or received from any
or all End Users (regardless of when the sublicense is executed)
between 1 year and 2 years after the First Conversion Date.
XXXXXXXXXXXXXXXXXXXXX from support and/or maintenance fees paid by all
End User in connection with each sublicense of the Package -- for all
payments due or received for all payments due or received from any or
all End Users (regardless of when the sublicense is executed) after 2
years after the First Conversion Date.
IX. Parts II and III of Addendum E shall be replaced in their entirety
with the new Parts II and III of Addendum E attached to this Amendment, so as
to delete the list of Pre-Qualified End Users and revise the list of Hold-Out
Accounts.
X. Capitalized terms used herein and not otherwise defined shall have the
meaning provided in the Original Agreement. Except as expressly provided
otherwise in this Amendment, the provisions of the Original Agreement shall
remain in full force and effect.
First Amendment to Software License Agreement
between Unisys Corporation and Phoenix International Ltd., Inc.
8
<PAGE> 9
IN WITNESS WHEREOF, this Amendment has been duly executed by the parties
hereto, as of the date shown above.
Phoenix International Ltd, Inc. Unisys Corporation
By: /s/ Bahram Yusefzadeh By: /s/ Jack A Blaine
------------------------------- -------------------------------
Bahram Yusefzadeh Jack A. Blaine
- ----------------------------------- ------------------------------------
(Printed Name) (Printed Name)
Title: Chairman & CEO Title: President
--------------------------- ----------------------------
Date: 12-27-96 Date: 12-27-96
---------------------------- -----------------------------
First Amendment to Software License Agreement
between Unisys Corporation and Phoenix International Ltd., Inc.
9
<PAGE> 10
Parts II and III of Addendum E (New)
Part II: Pre-Qualified End Users
Deleted.
First Amendment to Software License Agreement
between Unisys Corporation and Phoenix International Ltd., Inc.
10
<PAGE> 11
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
Part III. Hold-Out Accounts
Existing End Users:
XXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXX
First Amendment to Software License Agreement
between Unisys Corporation and Phoenix International Ltd., Inc.
11
<PAGE> 1
EXHIBIT 10.42
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
PHOENIX INTERNATIONAL LTD., INC.
COOPERATIVE MARKETING AGREEMENT
Marketing Agent: The Netcomm Group, Inc. Date: Sept. 5, 1996
-------------------------------- -------------
(X) Corporation ( ) Partnership
( ) Limited Partnership ( ) Limited Liability Company
State of Organization: Indiana
---------------------------
Address: 15266 Herriman Blvd
----------------------------------
Noblesville, Indiana 46060
----------------------------------
----------------------------------
Attention: XXXX
----------------------
Fax: XXXXXX
----------------------------
This COOPERATIVE AGREEMENT (this "Agreement") is entered into as of
the date first set forth above by and between Phoenix International Ltd., Inc.,
a Florida corporation ("Phoenix"), and the party first identified above as the
Marketing Agent ("Marketing Agent"). The parties hereto, intending to be
legally bound, agree as follows:
1 APPOINTMENT
Subject to the terms and conditions of this Agreement, the Marketing Agent
hereby agrees to enter into a cooperative marketing relationship with Phoenix
as set forth in the relationship addendum(s) attached hereto and listed below
(the "Relationship Addendum(s)"):
SERVICES ADDENDUM
TRAINING AND IMPLEMENTATION ADDENDUM
RELATIONSHIP ADDENDUM
SERVICE BUREAU ADDENDUM
<PAGE> 2
2 DEFINITIONS
As used in this Agreement, capitalized terms shall have the following meanings:
2.1 Confidential Information means any business, technical or other
information furnished by Phoenix to the Marketing Agent or disclosed to the
Marketing Agent as a result of examination or inspection of Phoenix's
facilities or product prototypes. Confidential Information shall in all cases
include all source code, development level documentation, and similar technical
information regarding the Software and all marketing and product development
information provided by Phoenix. Information which is disclosed orally will
be deemed to be Confidential Information provided that it is identified as
confidential at the time of disclosure and that the disclosing party, within
twenty-one (21) days after such disclosure, provides such information to the
receiving party in writing designated as confidential.
2.2 Documentation means the documentation associated with the Software as
produced and provided by Phoenix to the Marketing Agent and its customers
generally.
2.3 Eligible Prospect means a retail bank organized and doing business
exclusively in the Territory, and as more particularly described in Exhibit B
attached hereto.
2.4 End Users means customers presented to Phoenix by the Marketing Agent
and approved by Phoenix in accordance with Section 5.1 hereof, who license the
Software under an End User License.
2.5 End User License means the form of agreement or agreements applicable
to the license of the Software as provided by Phoenix to the Marketing Agent
from time to time.
2.6 Intellectual Property Rights means all copyright, design rights,
whether registered or unregistered, patents or patent application, know-how,
trade secrets, and Confidential Information related to or arising in the
Software or Documentation, including all applicable architecture, designs,
modules, routines, programming, command structures, interfaces, and any
Modifications thereto.
2.7 Maintenance means making Modifications to the Software to correct
verifiable and reproducible errors reported to Phoenix and includes all error
correction, maintenance and emergency releases and other modifications required
as a result of changes made by Phoenix which directly affect any of the
Software.
2.8 Modification means a work which is based upon one or more preexisting
works, such as a revision, modification, translation, abridgment, condensation,
expansion, or any other form in which such preexisting works may be recast,
transformed, or adapted, and shall include any work that incorporates or is
combined with such a preexisting work or any portion thereof.
2
<PAGE> 3
2.9 Modify means, with respect to any of the Software, to make a
Modification.
2.10 New Release means a new release of any of the Software to introduce
changes or additions to the Software for purposes of error correction and minor
enhancement of functionality and features.
2.11 New Version means a new release of any of the Software which adds
significant new features or functions, or significant improvement in
performance and for which Phoenix may make extra charges to its customers
generally.
2.12 Prime Rate means the prime rate (or base rate) reported in the "Money
Rates" column or section of The Wall Street Journal as being the base rate on
corporate loans at larger U.S. Money Center banks on the first date on which
The Wall Street Journal is published in each month.
2.13 Trademarks means the trademarks, service marks and trade names used by
Phoenix in connection with its software, products and services, whether
registered or unregistered.
2.14 Support means the provision of relevant assistance in the form of
telephone assistance and consultation, personnel and materials for the
implementation and continued use of the Software, including any Modification
which Phoenix offers as an addition to, replacement for, or option with such
Software under this Agreement.
2.15 Software means the technology, software, documentation, equipment,
communications and other items as indicated on Exhibit A attached hereto, as
such Exhibit may be amended from time to time in writing.
2.16 Territory means the regions set forth on Exhibit B, as such regions
exist as of the date of this Agreement.
3 LICENSE
Subject to the terms of this Agreement, and only as appropriate under the
applicable Relationship Addendum(s), Phoenix hereby grants to the Marketing
Agent the following non-exclusive, revocable rights and licenses with respect
to the Software within the Territory:
3.1 To use the Software as reasonably required to fulfill its obligations
and exercise its rights under this Agreement and in accordance with the
Relationship Addendum(s). The Marketing Agent may not provide the Software to
any third party except pursuant to a fully executed End User License, and may
not use the Software in production for the benefit of any third party, except
as otherwise allowed in a Relationship Addendum attached hereto or as otherwise
provided by written agreement signed by both parties. The Marketing Agent may
not use, rely
3
<PAGE> 4
on, or refer to the Software for purposes of developing or supporting any other
software.
3.2 Subject to completion of sufficient training as applicable and as
required by Phoenix from time to time, to use the Software for back up,
demonstrations, and evaluations involving End Users.
3.3 To use the Trademarks relating to the Software, provided, however,
that such use shall be subject to reasonable advertising and promotion
guidelines which Phoenix may provide from time to time. Phoenix reserves the
right to disallow any use of the Trademarks which would in any way, in
Phoenix's opinion, harm the validity or value of the Trademarks.
3.4 The Marketing Agent shall not copy, adapt, modify or reproduce the
Software in any manner whatsoever except as reasonably necessary for
demonstration, marketing, backup and archival purposes. All copies of the
software to be provided to End Users shall be supplied to the Marketing Agent
by Phoenix.
4 TERM AND REVIEW
4.1 This Agreement shall become effective on the date first set forth
above and shall continue for an initial period of two (2) years. This
Agreement shall automatically renew thereafter from year to year, unless and
until terminated by either party, in its discretion, by at least thirty (30)
days' prior written notice to the other party. In addition, Phoenix reserves
the right to terminate this Agreement at any time on at least thirty (30) days'
prior written notice if the Marketing Agent defaults on its obligations, incurs
a conflict of interest of significant impact, or fails to devote reasonable
effort to the license of the Software to End Users.
4.2 Notwithstanding the termination of this Agreement, Phoenix shall
continue to be entitled to the fees earned under this Agreement after such
termination. So long as the Marketing Agent continues to satisfy its
obligations to End Users under this maintenance and support agreements,
notwithstanding a termination of this Agreement, the Marketing Agent may
continue to provide such maintenance and support.
4.3 Either party may request a review of this Agreement and the royalty
payments applicable to the Software, such review to take place in advance of
each anniversary of the commencement of this Agreement while the Agreement
remains in force.
4.4 Survival. Notwithstanding termination of this Agreement for any
reason (including, without limitation, by notice pursuant to Section 3.1),
Sections 10 (Title to Intellectual Property), 11 (Confidentiality) and 14
(General) shall continue to have effect as shall any other provisions which by
their nature or necessary implication ought or were intended to continue to
have effect, and End User Licenses of customers already granted prior to the
date of such termination shall continue to be valid.
4
<PAGE> 5
4.5 Actions Upon Termination. Upon termination the Marketing Agent shall:
a. promptly cease to use, license, market or promote the
Software;
b. return all copies of the Software in the possession of the
Marketing Agent to Phoenix and shall cease using the same for any
purpose whatsoever except to fulfill its obligations under maintenance
and support agreements;
c. for a period of six (6) months following termination, refer to
Phoenix all prospective customers and all inquiries received by it
relating to the Software;
d. return and deliver or cause to be returned and delivered to
Phoenix all memoranda, notes, reports, documents or media relating to
or containing Confidential Information, including any copies or
extracts thereof.
The Marketing Agent shall certify its compliance with this Section upon the
written request of Phoenix.
5 OBLIGATIONS OF THE MARKETING AGENT
5.1 End User Approval. The Marketing Agent shall notify Phoenix of
potential customers for the Software. Phoenix shall notify the Marketing Agent
of marketing conflicts with Phoenix's marketing efforts to such potential
customers. In case of conflict, the senior sales managers of Phoenix and the
Marketing Agent shall determine whose sales force shall market to the customer.
If no resolution can be reached, the decision of Phoenix as to such customer
shall be final.
5.2 Customer Contacts. During the term of this Agreement, the Marketing
Agent will work exclusively with Phoenix with respect to any business
opportunity presented to the Marketing Agent by Phoenix or obtained by the
Marketing Agent as a result of the working relationship of the Marketing Agent
with Phoenix.
5.3 Development of Competing Software. The Marketing Agent shall not use
the Software or Documentation or any Confidential Information (as defined
herein) that it may acquire in connection with this Agreement to develop, have
developed, or support or invest in, directly or indirectly, the development of
any product which has, entirely or partially, the same functions as any of the
Software or which would be in direct or indirect competition with any of the
Software, or to sell competing products or services.
5.4 Qualified Personnel. The Marketing Agent shall employ suitably
qualified and trained personnel in order to perform its obligations hereunder,
and under any End User License or other agreement with an End User related to
the implementation, use or support of the Software.
5
<PAGE> 6
5.5 End User Compliance. The Marketing Agent shall inform Phoenix of all
known breaches by End Users of their agreements with Phoenix.
5.6 Notices, Logos and Marks. The Marketing Agent shall not alter, erase
or obscure any notices, legends, or trademarks or alter any indications of
ownership such as copyright, serial number or any other designations or
security provisions featured on copies of the Software and Documentation, and
shall include all such features on all copies of the Software and Documentation
made by the Marketing Agent.
5.7 Copies of Materials. The Marketing Agent shall send to Phoenix copies
of all advertising, marketing and product material related to the Software
created or to be used by the Marketing Agent.
6 PHOENIX'S OBLIGATIONS
6.1 Copies of the Software. Phoenix shall provide the Marketing Agent
with a reasonable number of copies of the Software and Documentation as
necessary for the Marketing Agent to fulfill its obligations and exercise its
rights hereunder. All Documentation shall be provided in English.
6.2 Maintenance and Support. Phoenix shall provide a description of the
specific hardware and software environment required by the Software. Upon
request, Phoenix will review alternative hardware and software configurations
proposed by the Marketing Agent and may, in its sole discretion, approve such
configurations. Phoenix shall provide the following maintenance and support
for Software operating in approved hardware and software environments during
the term of this Agreement:
a. Support. Phoenix shall provide Support and Maintenance to the
Marketing Agent for the then-current version and the immediately
preceding version of the Software. In order to assist in the
provision of Maintenance, the Marketing Agent shall notify Phoenix
promptly following the discovery of any defect. Further, upon
discovery of a defect, if requested by Phoenix, the Marketing Agent
shall submit to Phoenix a listing of output and any other data that
Phoenix may require in order to reproduce the error and the operating
conditions under which the error occurred or was discovered.
b. Upgrades. Phoenix shall provide the Marketing Agent with a
copy of each New Release and each New Version of the Software as
Phoenix may from time to time issue to its customers generally.
Phoenix shall provide reasonable telephone support to assist in the
installation and operation of each New Release and New Version. For
any particular New Release or New Version to operate properly, the
Marketing Agent must have installed all prior New Releases and New
Versions.
Regulatory Compliance. Phoenix shall ensure the software
complies with minimum regulatory requirements of U.S. Federal Agencies
having jurisdiction over the
6
<PAGE> 7
operation of the End User.
d. Telephone Support. Phoenix shall maintain a telephone support
line during hours to be designated by Phoenix from time to time, which
in any case shall cover at least 8:30 a.m. to 5:30 p.m. Monday through
Friday, Orlando, Florida time. Support in response to questions which
are outside the intended scope of this Agreement may be subject to an
additional charge.
e. Exceptions. The following matters are not covered by
Maintenance or Support under this Agreement:
(1) Any problem resulting from the misuse, improper use,
alteration, or damage of any of the Software;
(2) Any problem caused by the Modifications of any
version of the Software not made or authorized by Phoenix; or
(3) Any problem resulting from the use of the Software
with other programming or with hardware configurations not
approved in writing by Phoenix.
6.3 Expenses for On-Site Support. The Marketing Agent shall pay Phoenix's
normal charges and expenses for time, materials, and other resources and
expenses, including Phoenix's travel costs, required to provide Maintenance or
Support hereunder. In addition, the Marketing Agent is responsible for
procuring, installing, and maintaining all computer and other equipment,
networks, telephone lines, communications interfaces, and other hardware
necessary to operate the Software and to obtain maintenance services from
Phoenix. Phoenix will not be responsible for delays caused by events or
circumstances beyond its reasonable control.
7 TRAINING.
7.1 Initial Training. Phoenix shall provide up to 4 instructor days of
initial training in the functionality, marketing and operation of the Software.
The Marketing Agent shall pay Phoenix's reasonable travel, living, facility and
equipment expenses for such training, but shall not be charged for instructor
time. Phoenix shall provide training materials including "The Value Added Path
Methodology," sales and marketing materials, and an initial stock of sales
collaterals. Additional materials will be provided upon request at a price
equal to Phoenix's cost for such materials.
7.2 Upgrade Training. Phoenix shall provide training on all New Releases
at times and locations determined by Phoenix. The Marketing Agent may send two
representatives to one scheduled training session for each New Release at no
cost. Additional representatives may attend such training for additional fees
as determined by Phoenix. The Marketing Agent shall pay all travel and living
expenses for its representatives.
7
<PAGE> 8
7.3 Additional Training. Phoenix shall provide additional technical
assistance and training to the Marketing Agent in excess of the initial
training as reasonably requested by the Marketing Agent; provided, however,
that the Marketing Agent shall reimburse Phoenix for all expenses incurred by
Phoenix in providing such assistance and training and shall pay all applicable
training and instructor fees related to such services at Phoenix's then current
rates, unless otherwise agreed in writing before such services are provided.
7.4 Classes. Subject to space availability, the Marketing Agent may
enroll its employees in additional or advanced training classes at Phoenix's
then current rates.
8 WARRANTY
8.1 Limited Warranty. Phoenix warrants to the Marketing Agent that the
Software will, for a period of one (1) year after receipt, perform
substantially in conformance with applicable specifications (the "Limited
Warranty"). Phoenix makes no warranty that all nonconformities or defects have
been or can be eliminated from the Software or that operation of the Software
will be uninterrupted or error free. This Limited Warranty shall not apply to
(i) Modifications made to the Software other than those described in the
applicable Documentation or expressly approved by Phoenix, or (ii) to Software
damaged due to accident, abuse or neglect.
8.2 Exclusive Remedy. The Marketing Agent's sole and exclusive remedy for
breach of the above Limited Warranty shall be, at the option of Phoenix, repair
or replacement of the relevant Software. Any replacement Software shall be
covered under the Limited Warranty for the remainder of the original warranty
period, or for thirty (30) days after receipt, whichever is longer.
8.3 DISCLAIMER. EXCEPT FOR THE WARRANTY SET FORTH ABOVE, THE SOFTWARE ARE
LICENSED TO THE MARKETING AGENT "AS IS," AND PHOENIX DISCLAIMS ANY AND ALL
OTHER REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR
IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
8.4 LIMITATION OF LIABILITY AND DAMAGES. PHOENIX'S LIABILITY FOR ANY AND
ALL DAMAGES SHALL BE LIMITED TO THE EXCLUSIVE REMEDY SET FORTH ABOVE. NEITHER
PARTY SHALL HAVE ANY LIABILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR
LOSS OF PROFITS, INTERRUPTION OF BUSINESS, OR ANY OTHER MONETARY LOSS, ARISING
OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, OR FOR MISSTATEMENTS, MISTAKES
OR OMISSIONS IN THE DOCUMENTATION, EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE
POSSIBILITY OF SUCH DAMAGES.
8.5 Limitation on Actions. No action, regardless of form, arising out of
this Agreement or
8
<PAGE> 9
the transactions contemplated hereunder may be brought more than two (2) years
after the cause of the action has accrued.
8.6 Independent responsibility. Neither party shall be responsible to any
customer or End User for the quality of service or performance of products
furnished by the other party. Each party is solely responsible for
establishing the prices of its own products, services and associated
deliverables.
8.7 Trademark Use. Neither party, without the express prior written
approval of the other shall use the trademarks, service marks, or proprietary
words or symbols of the other. Notwithstanding the foregoing, nothing
contained in this Agreement shall affect either party's rights to use any
trademarks, service marks, or proprietary words or symbols of the other to the
extent otherwise permitted by applicable law or by written agreement between
the parties.
9 INDEMNIFICATION BY PHOENIX.
9.1 Infringement of Intellectual Property Rights. If a third party claims
that the Software infringes any patent, copyright, trade secret, or similar
Intellectual Property Rights, Phoenix shall (as long as the Marketing Agent is
not in default under this Agreement or any other agreement with Phoenix)
indemnify and defend the Marketing Agent against such claim at Phoenix's
expense, provided that the Marketing Agent promptly notifies Phoenix in writing
of any such claim, allows Phoenix to control all negotiations and litigation
related thereto, and cooperates with Phoenix in the defense and disposition of
such claim, including any related settlement negotiations.
9.2 Limitations. If such a claim is made or appears possible, Phoenix
may, at its option, secure for the Marketing Agent the right to continue to use
the Software, or modify or replace the Software so it is non-infringing.
Phoenix has no obligation hereunder for any claim based on a modified version
of the Software which has not been approved by Phoenix, or for any combination,
operation or use of the Software with a non-approved operating environment or
with any program, product, data or apparatus not approved in writing by
Phoenix. Phoenix shall have no obligation hereunder for any claim based on
theories of law that are not substantially equivalent to laws, treaties and
conventions applicable to U.S. patents, copyrights, trade secrets, and similar
intellectual property rights. THIS SECTION 12 STATES PHOENIX'S ENTIRE
OBLIGATION TO THE Marketing Agent WITH RESPECT TO MATTERS OF TITLE OR ANY CLAIM
OF INFRINGEMENT THEREOF.
10 TITLE TO INTELLECTUAL PROPERTY
All right title and interest in and to all copies of the Software and
Documentation and all Intellectual Property Rights pertaining thereto shall
vest exclusively with Phoenix, including the
9
<PAGE> 10
Intellectual Property Rights in all Modifications and other related works
created by or for Phoenix, the Marketing Agent, or any End User, including
their personnel and permitted agents or contractors. To the extent rights in
Modifications and all Intellectual Property Rights therein do not automatically
and fully vest exclusively in Phoenix, the Marketing Agent agrees to and hereby
does assign to Phoenix all such rights, and shall execute all such other
agreements as Phoenix may require to effect such assignment. To the extent
Modifications are produced by or under the supervision of the Marketing Agent,
Phoenix hereby grants to the Marketing Agent a non-transferable, and royalty
free license to reproduce, license and distribute such Modifications, but only
to the extent they are marketed and licensed or sold to End Users for use
solely with duly licensed versions of the Software pursuant to End User
Licenses in effect with Phoenix.
11 CONFIDENTIALITY
11.1 Non-Disclosure. Except as otherwise provided herein or as allowed by
the prior written consent of Phoenix, for the term of this Agreement and for a
period of three (3) years following the termination of this Agreement, the
Marketing Agent (a) shall receive all Confidential Information in strict
confidence, (b) shall use the same degree of care which it uses to protect its
own confidential information to maintain the confidentiality and secrecy
thereof, (c) shall disclose the Confidential Information, and permit the
Confidential Information to be disclosed, only to employees of the Marketing
Agent who need access to the Confidential Information to carry out the terms
and intent of this Agreement, and (d) shall use the Confidential Information
only in furtherance of its rights and obligations set forth in this Agreement.
Both the parties shall keep confidential the terms and conditions of this
Agreement, but not its existence, and all other information which is designated
in writing as confidential by one party to the other. Notwithstanding the
foregoing, the Marketing Agent may make such disclosures as may be required by
order of a court of competent jurisdiction, administrative agency or other
government body, or by law rule or regulation, provided, however, that to the
extent possible, the Marketing Agent gives Phoenix prior written notice of such
requirement and assists Phoenix in its efforts to oppose such requirement.
11.2 Exclusions. Paragraph 9.2 hereof shall not apply to any Confidential
Information which (a) at the time of disclosure to the Marketing Agent is in
the public domain or thereafter enters the public domain for reasons not
attributable to any act or omission of the Marketing Agent in breach of its
obligations hereunder, (b) which the Marketing Agent can show was in the
possession of the Marketing Agent prior to the disclosure thereof to the
Marketing Agent by Phoenix, or (c) which the Marketing Agent can show is
acquired by the Marketing Agent from a third party who does not thereby breach
an obligation of confidence to Phoenix and who discloses it in good faith.
10
<PAGE> 11
12 EXPORTS
12.1 Territory. The Marketing Agent may not export the Software outside of
the Territory nor contact any prospective End User outside of the Territory
without Phoenix's prior written approval.
13 EMPLOYEES
During the term of this Agreement and for a period of twelve (12) months
thereafter, neither party will directly or indirectly solicit for employment or
employ any employee of the other without the prior written consent of the
other.
14 GENERAL
14.1 No Authority to Bind the Other Party. The parties to this Agreement
are independent contractors and, except as provided in this Agreement or
otherwise in a writing signed by both parties, neither party is authorized to
act on behalf of the other or to bind the other. This Agreement does not
establish any relationship of agency, partnership, or joint venture. Each
party shall bear responsibility for its own employees, including terms of
employment, wages, hours, tax withholding, required insurance, and daily
direction and control. Except as otherwise set forth in an Addendum, the
relationship created hereunder is non-exclusive as to each party.
14.2 Successors and Assigns. Except as otherwise provided in this
Agreement, neither party may assign this Agreement or any rights or obligations
hereunder without the prior written consent of the other party. Any such
attempted assignment without such prior written consent shall be void and of no
force and effect. This Agreement shall inure to the benefit of and shall be
binding upon the permitted successors and assigns of the parties hereto.
14.3 Governing Law. The construction and interpretation of, and the rights
and obligations of the parties pursuant to this Agreement shall be governed by
the laws of the State of Florida.
14.4 Force Majeure. Neither party shall be liable for any failure of or
delay in the performance of this Agreement for the period that such failure or
delay is due to acts of God, public enemy, civil war, strikes or labor
disputes, or any other cause beyond the parties' reasonable control. Each
party agrees to notify the other party promptly of the occurrence of any such
cause and to carry out this Agreement as promptly as practicable after such
cause has terminated.
14.5 Severability. In the event that any part of this Agreement is
declared by any court or other judicial or administrative body to be null, void
or unenforceable, said provision shall
11
<PAGE> 12
survive to the extent if is not so declared, and all of the other provisions of
this Agreement shall remain in full force and effect.
14.6 Notices. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given: (i) on the date of service if served personally on the party to whom
notice is to be given; (ii) on the day of transmission if sent via facsimile
transmission to the facsimile number given below, and telephonic confirmation
of receipt is obtained promptly after completion of transmission; (iii) on the
second day after delivery to Federal Express or similar overnight courier or
the Express Mail service maintained by the United States Postal Service; or
(iv) on the fifth day after mailing, if mailed to the party to whom notice is
to be given, by first class air mail, registered or certified, postage prepaid
and properly addressed, to the party as follows:
If to the Phoenix:
Phoenix International Ltd., Inc.
900 Winderley Place
Suite 140
Maitland, Florida 32751
Attention: Ralph Reichard
Facsimile: (407) 667-0133
If to the Marketing Agent, at the address first set forth above.
Any party may change its address for the purpose of this Section by
giving the other parties written notice of its new address in the manner set
forth above.
14.7 Amendments; Waivers. This Agreement may be amended or modified, and
any of the terms, covenants, representations, warranties or conditions hereof
may be waived, only by a written instrument executed by the parties hereto, or
in the case of a waiver, by the party waiving compliance. Any waiver by any
party of a condition, or of the breach of any provision, term, covenant,
representation or warranty contained in this Agreement, in any one or more
instances, shall not be deemed to be nor construed as furthering or continuing
waiver of any such condition, or of the breach of any other provision, term,
covenant, representation or warranty of this Agreement.
14.8 Public Announcements. Neither party shall make any press release or
public announcement concerning this transaction without the prior written
approval of the other party unless a press release or public amendment is
required by law or by regulations binding upon
12
<PAGE> 13
any of the parties of their affiliates, in which case, the disclosing party
agrees to give the non-disclosing party prior notice and an opportunity to
comment on the proposed disclosure.
14.9 Entire Agreement. This Agreement contains the entire understanding
between the parties hereto with respect to the transactions contemplated hereby
and supersedes and replaces all prior and contemporaneous agreements and
understandings, oral or written, with regard to such transactions. All
schedules and addenda hereto and any documents and instruments delivered
pursuant to any provision hereof are expressly made a part of this Agreement as
fully as though completely set forth herein. The rights of the parties are
only as set forth herein, and there are and shall be no implied rights or
obligations whatsoever.
14.10 Parties in Interest. Nothing in this Agreement is intended to confer
any rights or remedies under this Agreement on any persons other than Phoenix
and the Marketing Agent and their respective successors and permitted assigns.
Nothing in this Agreement is intended to relieve or discharge the obligations
or liability of any third persons to Phoenix or the Marketing Agent.
14.11 Section and Paragraph Headings. The section and paragraph headings in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
14.12 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but both of which shall constitute the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first set forth in the Agreement.
Phoenix International Ltd., Inc.: Marketing Agent:
By:/s/ Ralph Reichard By:/s/ Richard Leirer
-------------------------------- -----------------------------
Signature Signature
Ralph Reichard Richard Leirer
- ----------------------------------- --------------------------------
Name (Print) Name (Print)
President President
- ----------------------------------- --------------------------------
Title Title
13
<PAGE> 14
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
SERVICES ADDENDUM
This Addendum provides additional terms defining the relationship between the
Marketing Agent and Phoenix. The terms and conditions contained herein are in
addition to those contained in the applicable Cooperative Agreement. If any
terms contained herein are inconsistent with the terms of the Cooperative
Agreement, the Cooperative Agreement shall control.
Whereas Phoenix and the Marketing Agent may wish to procure the services of one
another for their own benefit and for the benefit of their customers; and
Whereas Phoenix and the Marketing Agent may prepare budgets and customer
quotations based on the cost of such services, Phoenix and the Marketing Agent
agree to provide services to one another and on each other's behalf on the
following terms:
1 Direct Services. From time to time, Phoenix and the Marketing Agent
may provide services to one another, including without limitation
implementation and integration services and assistance, custom software and
systems development, modification and enhancement, and customer support
assistance. Such services shall be provided at XXXXXXXXXXXXXXXXX for such
services (the "Discounted Rate").
2 Phoenix Customer Services. At the Marketing Agent's request, Phoenix
may provide services to customers of the Marketing Agent or to the Marketing
Agent on the customer's behalf that the Marketing Agent would normally be
obligated to provide under the terms of the relationship between Phoenix and
the Marketing Agent or between the Marketing Agent and its customers. For all
such services which Phoenix agrees to provide, the Marketing Agent shall pay to
Phoenix XXXXXXXXXXXXXX for such services plus XXXXXX by the Marketing Agent to
the customer for such services.
3 Marketing Agent Customer Services. For all services provided by the
Marketing Agent to customers of Phoenix or Phoenix's affiliates and business
and Marketing Agents, the Marketing Agent shall negotiate rates in good faith,
and in all cases such rates shall be at least as favorable as the Marketing
Agent's then current published rates for such services. Such services may be
provided by the Marketing Agent directly to customers or as a subcontractor to
Phoenix or other parties.
4 Most Favorable Terms. All rates referred to herein before shall be at
least as favorable as the rates provided by the applicable party to any of its
other customers, Marketing Agents or consultants.
5 Materials. Materials provided by on party to the other or to the
other's customers (other
14
<PAGE> 15
than the Software and other proprietary software and hardware of either party)
shall be billed at the applicable party's actual cost for such materials.
6 Disclaimer. Notwithstanding the foregoing, neither party shall be
obligated to provide services to the other or to any other party without prior
approval on a case by case basis (other than those services required to be
provided under the terms of this or any other agreement).
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first set forth in the Agreement.
Phoenix International Ltd., Inc.: Marketing Agent:
By:/s/ Ralph Reichard By:/s/ Richard Leirer
------------------------------- --------------------------------
Signature Signature
Ralph Reichard Richard Leirer
- ---------------------------------- -----------------------------------
Name (Print) Name (Print)
President President
- ---------------------------------- -----------------------------------
Title Title
15
<PAGE> 16
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
TRAINING AND IMPLEMENTATION ADDENDUM
This Addendum provides additional terms defining the relationship between the
Marketing Agent and Phoenix. The terms and conditions contained herein are in
addition to those contained in the applicable Cooperative Marketing Agreement.
If any terms contained herein are inconsistent with the terms of the
Cooperative Marketing Agreement, the Cooperative Marketing Agreement shall
control.
1 Training and Certification. Phoenix shall assist the Marketing Agent
in the first XXX installations of the Software for End Users and shall
concurrently train the Marketing Agent's personnel in the implementation of the
Software. Additionally, the Marketing Agent's personnel shall be entitled to
attend the training sessions for the first XXX End Users at no cost. Upon
completion of such training, Phoenix shall certify certain of the Marketing
Agent's personnel to implement the Software. The Marketing Agent shall pay
Phoenix's reasonable travel, living, facility and equipment expenses for such
training, but shall not be charged for instructor time. Up to the limit
established by Phoenix, Phoenix shall provide training materials. Additional
materials will be available for purchase at Phoenix's costs.
2 Right to Implement. Once the Marketing Agent's personnel have
completed the requisite training and have been certified for installation and
implementation of the software by Phoenix, the Marketing Agent may implement
the Software in accordance with this Agreement hereto, but only under the
direction and supervision of certified personnel. All implementations of the
Software shall follow Phoenix's methodology as taught in the training sessions.
3 Additional License. Once the training has been completed, the
Marketing Agent shall have the additional right and license to do the following
with respect to the Software:
3.1 To use the Software for the purpose of installing, maintaining and
marketing the Software for End Users as provided for hereunder.
3.2 To Maintain and Support the Software licensed to End Users, and to
train End Users in the use of the Software and for other educational purposes.
4 Maintenance and Support. Once training has been completed, the
Marketing Agent shall be responsible for all Maintenance and Support of End
Users. The Marketing Agent shall enter into a Maintenance and Support
Agreement with each End User who chooses to accept Maintenance and Support.
The Maintenance and Support Agreement shall be presented to Phoenix prior to
use with End Users, and shall be in a form and contain such terms as are
acceptable to Phoenix. If, at any time, the Marketing Agent materially fails
to provide
16
<PAGE> 17
Maintenance and Support under an agreement with an End User, Phoenix shall
assume the Marketing Agent's responsibilities under such agreement, the
Marketing Agent shall assign the agreement to Phoenix, and the Marketing Agent
shall forward to Phoenix all maintenance and support fees received from such
End User for the period for which Phoenix assumes maintenance and support
obligations, including fees received prior to the assignment for services
provided by Phoenix after the assignment.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first set forth in the Agreement.
Phoenix International Ltd., Inc. Marketing Agent:
By:/s/ Ralph Reichard By:/s/ Richard Leirer
------------------------------- ---------------------------------
Signature Signature
Ralph Reichard Richard Leirer
- ---------------------------------- ------------------------------------
Name (Print) Name (Print)
President President
- ---------------------------------- -------------------------------------
Title Title
17
<PAGE> 18
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
RELATIONSHIP ADDENDUM
MARKETING AGENT
This Addendum provides additional terms defining the relationship between the
Marketing Agent and Phoenix. The terms and conditions contained herein are in
addition to those contained in the applicable Cooperative Agreement. If any
terms contained herein are inconsistent with the terms of the Cooperative
Agreement, the Cooperative Agreement shall control.
1 Marketing. Phoenix and the Marketing Agent will identify and
introduce prospective customers to each other and will facilitate
communications and the development of business relationships with such parties.
2 End User Licenses. The Marketing Agent shall present an End User
License to each potential Customer and shall cause all customers to execute an
End User License prior to delivery or installation of the software. The
Marketing Agent shall forward each executed End User License to Phoenix for
acceptance and signature.
3 Prices. All License and Maintenance Fees for the Software shall
conform to Phoenix's standard pricing guides, except as expressly agreed in
writing by Phoenix and the Marketing Agent, and shall in all cases be at least
as favorable as the fees charged by Phoenix to its customers directly.
Initially, the license fees for customers of the Marketing Agent shall be as
follows:
<TABLE>
<CAPTION>
Customer Assets Initial License Fee
--------------- -------------------
<S> <C>
DeNovo XXXX
XXX XXXX
XXX XXXX
XXX XXXX
XXX XXXX
XXX XXXX
XXX XXXX
XXX XXXX
</TABLE>
The above license fees may be XXXXXXXXXXXXX for those financial institutions
currently using software of the Marketing Agent who switch to the Phoenix
Software.
18
<PAGE> 19
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
Annual Maintenance Fees shall be XXXXXXXXX.
4 Fees. The Marketing Agent shall be responsible for the invoice and
collecting all license, implementation, maintenance and other fees paid by End
Users purchasing the Software due to the marketing efforts of the Marketing
Agent.
4.1 License Fees. The Marketing Agent shall forward the following
percentages of all license fees to Phoenix within 30 days of the
execution of the applicable End User License:
1st XXX End Users: XXX
All other End Users: XXX
4.2 Implementation Fees. The Marketing Agent shall forward
XXXXXXX for the first XXXXX End Users to Phoenix within 15 days of
receipt of such fees. Thereafter, the Marketing Agent shall keep
XXXXXXXX for services provided to End Users by the Marketing Agent and
shall forward to Phoenix XXX received for services provided by Phoenix
to End Users.
4.3 Maintenance Fees. The Marketing Agent shall forward to
Phoenix the following percentage of all Maintenance Fees collected
from End Users within 15 days of receipt of such fees by the Marketing
Agent.
Year 1 maintenance fees
for each End User: XXX
Year 2 through 5 maintenance
fees for each End User: XXX
4.4 Other Fees. The Marketing Agent shall keep XXXXXXXXX services
provided to End Users other than as set forth above.
5 Expenses. The Marketing Agent will be responsible for the marketing
expenses of its personnel hereunder and Phoenix shall be responsible for the
expenses of Phoenix personnel.
6 Complementary Products and Services. The Marketing Agent may provide
to End Users complementary products and services as certified by Phoenix for
provision to End Users as such may be approved by Phoenix from time to time.
Such products and services shall be provided pursuant to an agreement between
the End User and the Marketing Agent. Phoenix shall have
19
<PAGE> 20
the right and opportunity to approve all such agreements, which approval shall
not be unreasonably withheld. The Marketing Agent may request that such
products and services be included in the End User License. Phoenix will use
its best efforts to include such products and services in End User Licenses.
Such products and services shall be provided on reasonable terms and conditions
no less favorable than the terms and conditions under which the Marketing Agent
offers similar products and services to its other customers.
7 Implementation. If the Marketing Agent has executed an Implementation
Addendum and complied with the terms therein, then the Marketing Agent may
implement the software sold as a result of the Marketing Agent's efforts. All
Software not implemented by the Marketing Agent shall be implemented by or at
the direction of Phoenix. Phoenix shall supply the Marketing Agent with one
copy of the Software and Documentation on the appropriate electronic media for
implementation for each fully executed End User License presented to Phoenix
along with Phoenix's percentage of the license fees for such End User.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first set forth in the Agreement.
Phoenix International Ltd., Inc. Marketing Agent:
By:/s/ Ralph Reichard By:/s/ Richard Leirer
---------------------------- ---------------------------
Signature Signature
Ralph Reichard Richard Leirer
- ------------------------------- ------------------------------
Name (Print) Name (Print)
President President
- ------------------------------- ------------------------------
Title Title
20
<PAGE> 21
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
This Addendum provides additional terms defining the relationship between the
Marketing Agent and Phoenix. The terms and conditions contained herein are in
addition to those contained in the applicable Cooperative Agreement. If any
terms contained herein are inconsistent with the terms of the Cooperative
Agreement, the Cooperative Agreement shall control.
1 Service Bureau Arrangement. The Marketing Agent may use the Software
for outsourcing data services to Eligible Prospects within the Territory.
2 Fees. The Marketing Agent shall forward to Phoenix a percentage of
all revenue received from outsourcing activities. The percentages shall be
based on the XXXXXXXXX received by the Marketing Agent from XXXXXXXXXXXXXXXXX
involving the use other Phoenix Software as follows:
<TABLE>
<CAPTION>
Monthly Revenues % Paid to Phoenix
---------------- -----------------
<S> <C>
Less than XXXX XX
XXX to XXXX XX
XXX to XXXX XX
Greater than XXXX XX
</TABLE>
All amounts due Phoenix shall be forwarded to Phoenix within 30 days of the end
of the month in which they are earned by the Marketing Agent. The Marketing
Agent shall be responsible for the collection of all outsourcing revenue due to
its activities. Monthly revenues for each outsourcing client of the Marketing
Agent attributable to use of the Software shall in no case be XXXXXXXXXXXXXXX
of all revenue collected from each client in each month.
21
<PAGE> 22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first set forth in the Agreement.
Phoenix International Ltd., Inc. Marketing Agent:
By:/s/ Ralph Reichard By:/s/ Richard Leirer
------------------------------- -------------------------------------
Signature Signature
Ralph Reichard Richard Leirer
- ---------------------------------- ----------------------------------------
Name (Print) Name (Print)
President President
- ---------------------------------- ----------------------------------------
Title Title
22
<PAGE> 23
EXHIBIT A
SOFTWARE
Means the software generally referred to as the Phoenix Retail Banking System
23
<PAGE> 24
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
EXHIBIT B
TERRITORY
The Territory shall be as follows:
1) Indiana
2) Michigan
The Marketing Agent's territory includes only those financial institution,
including commercial banks, savings banks, thrifts with their primary
operations based in the above territory, and with assets less than $200
Million. The Territory is non-exclusive (except as provided below). Phoenix
may approve, in its sole discretion, marketing to institutions in the Territory
with assets in excess of $200 Million upon a showing by the Marketing Agent of
a prior business relationship.
The Territory may be modified at any time by mutual written agreement of the
parties.
Indiana shall be the exclusive territory of the Marketing Agent for Eligible
Prospects with less than $200 Million in assets as long as the following
minimum sales are met by the Marketing Agent:
Sale of the Software to XX End User within Indiana within XX months of the date
of this Agreement Sale of the Software to XX End User within Indiana within XX
months of the date of this Agreement Sale of the Software to XX End User within
Indiana by the end of calendar year XXX
If the Marketing Agent misses any of the above sales minimums, Indiana shall
remain in the Territory, but shall become automatically non-exclusive.
24
<PAGE> 1
EXHIBIT 10.43
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION.
PHOENIX INTERNATIONAL LTD., INC.
COOPERATIVE MARKETING AGREEMENT
Marketing Agent: ISC Financial Systems, Inc. Date: Oct. 2, 1996
---------------------------------- ------------
(X) Corporation ( ) Partnership
( ) Limited Partnership ( ) Limited Liability Company
State of Organization: Ohio
----------------------------------------------
Address: 1480 West Lane Avenue
---------------------------------------------------
Columbus, Ohio 43221
---------------------------------------------------
---------------------------------------------------
Attention: XXXXXX
---------------------------------
Fax: XXXXXX
---------------------------------------
This COOPERATIVE AGREEMENT (this "Agreement") is entered into as of
the date first set forth above by and between Phoenix International Ltd., Inc.,
a Florida corporation ("Phoenix"), and the party first identified above as the
Marketing Agent ("Marketing Agent"). The parties hereto, intending to be
legally bound, agree as follows:
1 APPOINTMENT
Subject to the terms and conditions of this Agreement, the Marketing Agent
hereby agrees to enter into a cooperative marketing relationship with Phoenix
as set forth in the relationship addendum(s) attached hereto and listed below
(the "Relationship Addendum(s)"):
SERVICES ADDENDUM
TRAINING, IMPLEMENTATION, AND SUPPORT ADDENDUM
RELATIONSHIP ADDENDUM
SERVICE BUREAU ADDENDUM
<PAGE> 2
2 DEFINITIONS
As used in this Agreement, capitalized terms shall have the following meanings:
2.1 Confidential Information means any business, technical or other
information furnished by one party hereto to the other or disclosed by one
party to the other as a result of examination or inspection of facilities or
product prototypes. Confidential Information shall in all cases include all
source code, development level documentation, and similar technical information
regarding all software and all marketing and product development information.
Information which is disclosed orally will be deemed to be Confidential
Information provided that it is identified as confidential at the time of
disclosure and that the disclosing party, within twenty-one (21) days after
such disclosure, provides such information to the receiving party in writing
designated as confidential.
2.2 Documentation means the documentation associated with the Software as
produced and provided by Phoenix to the Marketing Agent and its customers
generally.
2.3 Eligible Prospect means a retail bank organized and doing business
exclusively in the Territory, and as more particularly described in Exhibit B
attached hereto.
2.4 End Users means customers presented to Phoenix by the Marketing Agent
and approved by Phoenix in accordance with Section 5.1 hereof, who license the
Software under an End User License.
2.5 End User License means the form of agreement or agreements applicable
to the license of the Software as provided by Phoenix to the Marketing Agent
from time to time.
2.6 Intellectual Property Rights means all copyright, design rights,
whether registered or unregistered, patents or patent application, know-how,
trade secrets, and Confidential Information related to or arising in the
software or documentation of either party, including all applicable
architecture, designs, modules, routines, programming, command structures,
interfaces, and any Modifications thereto.
2.7 Maintenance means making Modifications to the Software to correct
verifiable and reproducible errors reported to Phoenix and includes all error
correction, maintenance and emergency releases and other modifications required
as a result of changes made by Phoenix which directly affect any of the
Software.
2.8 Modification means a work which is based upon one or more preexisting
works, such as a revision, modification, translation, abridgment, condensation,
expansion, or any other form in which such preexisting works may be recast,
transformed, or adapted, and shall include any work that incorporates or is
combined with such a preexisting work or any portion thereof.
2.9 Modify means, with respect to any of the Software, to make a
Modification.
2.10 New Release means a new release of any of the Software to introduce
changes or additions to the Software for purposes of error correction and minor
enhancement of functionality and features.
<PAGE> 3
2.11 New Version means a new release of any of the Software which adds
significant new features or functions, or significant improvement in
performance and for which Phoenix may make extra charges to its customers
generally.
2.12 Prime Rate means the prime rate (or base rate) reported in the "Money
Rates" column or section of The Wall Street Journal as being the base rate on
corporate loans at larger U.S. Money Center banks on the first date on which
The Wall Street Journal is published in each month.
2.13 Trademarks means the trademarks, service marks and trade names used by
Phoenix in connection with its software, products and services, whether
registered or unregistered.
2.14 Support means the provision of relevant assistance in the form of
telephone assistance and consultation, personnel and materials for the
implementation and continued use of the Software, including any Modification
which Phoenix offers as an addition to, replacement for, or option with such
Software under this Agreement.
2.15 Software means the technology, software, documentation, equipment,
communications and other items as indicated on Exhibit A attached hereto, as
such Exhibit may be amended from time to time in writing.
2.16 Territory means the regions set forth on Exhibit B, as such regions
exist as of the date of this Agreement.
3 LICENSE
Subject to the terms of this Agreement, and only as appropriate under the
applicable Relationship Addendum(s), Phoenix hereby grants to the Marketing
Agent the following non-exclusive, revocable rights and licenses with respect
to the Software within the Territory:
3.1 To use the Software as reasonably required to fulfill its obligations
and exercise its rights under this Agreement and in accordance with the
Relationship Addendum(s). The Marketing Agent may not provide the Software to
any third party except pursuant to a fully executed End User License, and may
not use the Software in production for the benefit of any third party, except
as otherwise allowed in a Relationship Addendum attached hereto or as otherwise
provided by written agreement signed by both parties. The Marketing Agent may
not use, rely on, or refer to the Software for purposes of developing or
supporting any other software except in support of End Users or as otherwise
allowed in a Relationship Addendum attached hereto or as otherwise provided by
written agreement signed by both parties.
3.2 Subject to completion of sufficient training as applicable and as
required by Phoenix from time to time, to use the Software for back up,
demonstrations, and evaluations involving End Users.
3.3 To use the Trademarks relating to the Software, provided, however,
that such use shall
3
<PAGE> 4
be subject to reasonable advertising and promotion guidelines which Phoenix may
provide from time to time. Phoenix reserves the right to disallow any use of
the Trademarks which would in any way, in Phoenix's opinion, harm the validity
or value of the Trademarks.
3.4 The Marketing Agent shall not copy, adapt, modify or reproduce the
Software in any manner whatsoever except as reasonably necessary for
demonstration, marketing, backup and archival purposes. All copies of the
software to be provided to End Users shall be supplied to the Marketing Agent
by Phoenix.
4 TERM AND REVIEW
4.1 This Agreement shall become effective on the date first set forth
above and shall continue for an initial term of three (3) years. This
Agreement shall automatically renew thereafter for two (2) year periods, unless
and until terminated by either party, in its discretion, by written notice to
the other party at least ninety (90) days prior to the end of the initial term
or any renewal term. In addition, Phoenix reserves the right to terminate this
Agreement at any time on at least ninety (90) days prior written notice if the
Marketing Agent defaults on its obligations, incurs a conflict of interest of
significant impact, or fails to devote reasonable effort to the license of the
Software to End Users and Marketing Agent does not cure such default, conflict
or effort within such 90 day period. Marketing Agent reserves the right to
terminate this Agreement on 90 days prior written notice if Phoenix defaults on
its obligations hereunder and does not cure such default within such 90 day
period.
4.2 Notwithstanding the termination of this Agreement, Phoenix shall
continue to be entitled to the fees earned under this Agreement after such
termination. So long as the Marketing Agent continues to satisfy its
obligations to End Users under this maintenance and support agreements,
notwithstanding a termination of this Agreement, the Marketing Agent may
continue to provide such maintenance and support.
4.3 Either party may request a review of this Agreement and the royalty
payments applicable to the Software, such review to take place in advance of
each anniversary of the commencement of this Agreement while the Agreement
remains in force.
4.4 Survival. Notwithstanding termination of this Agreement for any
reason (including, without limitation, by notice pursuant to Section 4.1),
Sections 10 (Title to Intellectual Property), 11 (Confidentiality) and 14
(General) shall continue to have effect as shall any other provisions which by
their nature or necessary implication ought or were intended to continue to
have effect, and End User Licenses of customers already granted prior to the
date of such termination shall continue to be valid.
4.5 Actions Upon Termination. Upon termination, except as necessary to
fulfill its obligations under maintenance, servicing and support agreements
with End Users, the Marketing Agent shall:
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a. promptly cease to use, license, market or promote the Software;
b. return all copies of the Software in the possession of the
Marketing Agent to Phoenix and shall cease using the same for any
purpose whatsoever;
return and deliver or cause to be returned and delivered to Phoenix
all memoranda, notes, reports, documents or media relating to or
containing Confidential Information, including any copies or
extracts thereof.
The Marketing Agent shall certify its compliance with this Section upon the
written request of Phoenix.
5 OBLIGATIONS OF THE MARKETING AGENT
5.1 End User Approval. The Marketing Agent shall notify Phoenix of
potential customers for the Software. Phoenix shall notify the Marketing Agent
of marketing conflicts with Phoenix's marketing efforts to such potential
customers. In case of conflict, the senior sales managers of Phoenix and the
Marketing Agent shall determine whose sales force shall market to the customer.
If no resolution can be reached, the decision of Phoenix as to such customer
shall be final. The foregoing provision concerning marketing conflicts shall
be interpreted and applied consistent with the grant of territory and
exclusivity in Exhibit B.
5.2 Customer Contacts. During the term of this Agreement, the Marketing
Agent will work exclusively with Phoenix with respect to any business
opportunity presented to the Marketing Agent by Phoenix or obtained by the
Marketing Agent as a result of the working relationship of the Marketing Agent
with Phoenix.
5.3 Development of Competing Software. The Marketing Agent shall not use
the Software or Documentation or any Confidential Information (as defined
herein) that it may acquire in connection with this Agreement to develop, have
developed, or support or invest in, directly or indirectly, the development of
any product which has, entirely or partially, the same functions as any of the
Software or which would be in direct or indirect competition with any of the
Software, or to sell competing products or services.
Nothing in this agreement shall limit the rights of Marketing Agent to develop,
sell and support Trust and Investment Management Software.
5.4 Qualified Personnel. The Marketing Agent shall employ suitably
qualified and trained personnel in order to perform its obligations hereunder,
and under any End User License or other agreement with an End User related to
the implementation, use or support of the Software.
5.5 End User Compliance. The Marketing Agent shall inform Phoenix of all
known breaches by End Users of their agreements with Phoenix.
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5.6 Notices, Logos and Marks. The Marketing Agent shall not alter, erase
or obscure any notices, legends, or trademarks or alter any indications of
ownership such as copyright, serial number or any other designations or
security provisions featured on copies of the Software and Documentation, and
shall include all such features on all copies of the Software and Documentation
made by the Marketing Agent.
5.7 Copies of Materials. The Marketing Agent shall send to Phoenix copies
of all advertising, marketing and product material related to the Software
created or to be used by the Marketing Agent.
6 PHOENIX'S OBLIGATIONS
6.1 Copies of the Software. Phoenix shall provide the Marketing Agent
with a reasonable number of copies of the Software and Documentation as
necessary for the Marketing Agent to fulfill its obligations and exercise its
rights hereunder. All Documentation shall be provided in English.
6.2 Maintenance and Support. Phoenix shall provide a description of the
specific hardware and software environment required by the Software. Upon
request, Phoenix will review alternative hardware and software configurations
proposed by the Marketing Agent and may, in its sole discretion, approve such
configurations. Phoenix shall provide the following maintenance and support
for Software operating in approved hardware and software environments during
the term of this Agreement:
a. Support. Phoenix shall provide Support and Maintenance to the
Marketing Agent for the then-current version and the immediately
preceding version of the Software. In order to assist in the
provision of Maintenance, the Marketing Agent shall notify Phoenix
promptly following the discovery of any defect. Further, upon
discovery of a defect, if requested by Phoenix, the Marketing Agent
shall submit to Phoenix a listing of output and any other data that
Phoenix may require in order to reproduce the error and the operating
conditions under which the error occurred or was discovered.
b. Upgrades. Phoenix shall provide the Marketing Agent with a
copy of each New Release and each New Version of the Software as
Phoenix may from time to time issue to its customers generally.
Phoenix shall provide reasonable telephone support to assist in the
installation and operation of each New Release and New Version. For
any particular New Release or New Version to operate properly, the
Marketing Agent must have installed all prior New Releases and New
Versions.
c. Telephone Support. Phoenix shall maintain a telephone support
line during hours to be designated by Phoenix from time to time, which
in any case shall cover at least 8:30 a.m. to 5:30 p.m. Monday through
Friday, Orlando, Florida time. Phoenix will assign a n experienced
support person as the primary contact of Marketing Agent for
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support questions. Support in response to questions which are outside
the intended scope of this Agreement may be subject to an additional
charge.
d. Exceptions. The following matters are not covered by
Maintenance or Support under this Agreement:
(1) Any problem resulting from the misuse, improper use,
alteration, or damage of any of the Software;
(2) Any problem caused by the Modifications of any
version of the Software not made or authorized by Phoenix; or
(3) Any problem resulting from the use of the Software
with other programming or with hardware configurations not
approved in writing by Phoenix.
6.3 Expenses for On-Site Support The Marketing Agent shall pay Phoenix
75% of Phoenix's standard fee for time and 100% for materials and expenses,
including Phoenix's travel costs, required to provide on-site Maintenance or
Support hereunder. In addition, the Marketing Agent is responsible for
procuring, installing, and maintaining all computer and other equipment,
networks, telephone lines, communications interfaces, and other hardware
necessary to operate the Software and to obtain maintenance services from
Phoenix. Phoenix will not be responsible for delays caused by events or
circumstances beyond its reasonable control.
7 TRAINING.
7.1 Initial Training. Phoenix shall provide up to 4 instructor days of
initial training in the functionality, marketing and operation of the Software.
The Marketing Agent shall pay Phoenix's reasonable travel, living, facility and
equipment expenses for such training, but shall not be charged for instructor
time. Phoenix shall provide training materials including: sales and marketing
materials, and an initial stock of sales collaterals. Additional materials
will be provided upon request at a price equal to Phoenix's cost for such
materials.
7.2 Upgrade Training. Phoenix shall provide training on all New Releases
at times and locations determined by Phoenix. The Marketing Agent may send two
representatives to one scheduled training session for each New Release at no
cost. Additional representatives may attend such training for additional fees
as determined by Phoenix. The Marketing Agent shall pay all travel and living
expenses for its representatives.
7.3 Additional Training. Phoenix shall provide additional technical
assistance and training to the Marketing Agent in excess of the initial
training as reasonably requested by the Marketing Agent; provided, however,
that the Marketing Agent shall reimburse Phoenix for all expenses incurred by
Phoenix in providing such assistance and training and shall pay 75% of the
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applicable training and instructor fees related to such services at Phoenix's
then current rates, unless otherwise agreed in writing before such services are
provided.
7.4 Classes. Subject to space availability, the Marketing Agent may
enroll its employees in additional or advanced training classes at no cost.
7.5 Observation. Subject to scheduling by Phoenix, Marketing Agent may
send members of its technical or support staff to observe Phoenix employees
performing similar jobs for a combined maximum of 4 days at no cost. The
Marketing Agent shall pay all travel and living expenses for its
representatives.
8 WARRANTY
8.1 Limited Warranty. Phoenix warrants to the Marketing Agent that the
Software will, for a period of one (1) year after receipt, perform
substantially in conformance with applicable specifications (the "Limited
Warranty"). Phoenix makes no warranty that all nonconformities or defects have
been or can be eliminated from the Software or that operation of the Software
will be uninterrupted or error free. This Limited Warranty shall not apply to
(i) Modifications made to the Software other than those described in the
applicable Documentation or expressly approved by Phoenix, or (ii) to Software
damaged due to accident, abuse or neglect.
8.2 Exclusive Remedy. The Marketing Agent's sole and exclusive remedy for
breach of the above Limited Warranty shall be, at the option of Phoenix, repair
or replacement of the relevant Software. Any replacement Software shall be
covered under the Limited Warranty for the remainder of the original warranty
period, or for thirty (30) days after receipt, whichever is longer.
8.3 DISCLAIMER. EXCEPT FOR THE WARRANTY SET FORTH ABOVE, THE SOFTWARE ARE
LICENSED TO THE MARKETING AGENT "AS IS," AND PHOENIX DISCLAIMS ANY AND ALL
OTHER REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR
IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
8.4 LIMITATION OF LIABILITY AND DAMAGES. PHOENIX'S LIABILITY FOR ANY AND
ALL DAMAGES SHALL BE LIMITED TO THE EXCLUSIVE REMEDY SET FORTH ABOVE. NEITHER
PARTY SHALL HAVE ANY LIABILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR
LOSS OF PROFITS, INTERRUPTION OF BUSINESS, OR ANY OTHER MONETARY LOSS, ARISING
OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, OR FOR MISSTATEMENTS, MISTAKES
OR OMISSIONS IN THE DOCUMENTATION, EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE
POSSIBILITY OF SUCH DAMAGES.
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8.5 Limitation on Actions. No action, regardless of form, arising out of
this Agreement or the transactions contemplated hereunder may be brought more
than two (2) years after the cause of the action has accrued.
8.6 Independent responsibility. Neither party shall be responsible to any
customer or End User for the quality of service or performance of products
furnished by the other party. Each party is solely responsible for
establishing the prices of its own products, services and associated
deliverables.
8.7 Trademark Use. Neither party, without the express prior written
approval of the other shall use the trademarks, service marks, or proprietary
words or symbols of the other. Notwithstanding the foregoing, nothing
contained in this Agreement shall affect either party's rights to use any
trademarks, service marks, or proprietary words or symbols of the other to the
extent otherwise permitted by applicable law or by written agreement between
the parties.
9 INDEMNIFICATION BY PHOENIX.
9.1 Infringement of Intellectual Property Rights. If a third party claims
that the Software infringes any patent, copyright, trade secret, or similar
Intellectual Property Rights, Phoenix shall (as long as the Marketing Agent is
not in default under this Agreement or any other agreement with Phoenix)
indemnify and defend the Marketing Agent against such claim at Phoenix's
expense, provided that the Marketing Agent promptly notifies Phoenix in writing
of any such claim, allows Phoenix to control all negotiations and litigation
related thereto, and cooperates with Phoenix in the defense and disposition of
such claim, including any related settlement negotiations.
9.2 Limitations. If such a claim is made or appears possible, Phoenix
may, at its option, secure for the Marketing Agent the right to continue to use
the Software, or modify or replace the Software so it is non-infringing.
Phoenix has no obligation hereunder for any claim based on a modified version
of the Software which has not been approved by Phoenix, or for any combination,
operation or use of the Software with a non-approved operating environment or
with any program, product, data or apparatus not approved in writing by
Phoenix. Phoenix shall have no obligation hereunder for any claim based on
theories of law that are not substantially equivalent to laws, treaties and
conventions applicable to U.S. patents, copyrights, trade secrets, and similar
intellectual property rights. THIS SECTION 9 STATES PHOENIX'S ENTIRE
OBLIGATION TO THE MARKETING AGENT WITH RESPECT TO MATTERS OF TITLE OR ANY CLAIM
OF INFRINGEMENT THEREOF.
10 TITLE TO INTELLECTUAL PROPERTY
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10.1 All right title and interest in and to all copies of the Software and
Documentation and all Intellectual Property Rights pertaining thereto shall
vest exclusively with Phoenix, including the Intellectual Property Rights in
all Modifications created by or for Phoenix, the Marketing Agent, or any End
User, including their personnel and permitted agents or contractors. To the
extent rights in Modifications and all Intellectual Property Rights therein do
not automatically and fully vest exclusively in Phoenix, the Marketing Agent
agrees to and hereby does assign to Phoenix all such rights, and shall execute
all such other agreements as Phoenix may require to effect such assignment. To
the extent Modifications are produced by or under the supervision of the
Marketing Agent, Phoenix hereby grants to the Marketing Agent a
non-transferable, and royalty free license to reproduce, license and distribute
such Modifications, but only to the extent they are marketed and licensed or
sold to End Users for use solely with duly licensed versions of the Software
pursuant to End User Licenses in effect with Phoenix.
10.2 All right title and interest in and to all software and documentation
and all Intellectual Property Rights therein developed or owned by the
Marketing Agent shall remain the exclusive property of the Marketing Agent, and
Phoenix shall have no rights therein except as otherwise agreed between the
parties.
11 CONFIDENTIALITY
11.1 Non-Disclosure. Except as otherwise provided herein or as allowed by
the prior written consent of the party disclosing any Confidential Information
(the "Disclosing Party"), for the term of this Agreement and for a period of
three (3) years following the termination of this Agreement, the party
receiving Confidential Information (the "Receiving Party") (a) shall receive
all Confidential Information in strict confidence, (b) shall use the same
degree of care which it uses to protect its own confidential information to
maintain the confidentiality and secrecy thereof, (c) shall disclose the
Confidential Information, and permit the Confidential Information to be
disclosed, only to its employees who need access to the Confidential
Information to carry out the terms and intent of this Agreement, and (d) shall
use the Confidential Information only in furtherance of its rights and
obligations set forth in this Agreement or any other Agreement between the
parties. Both parties shall keep confidential the terms and conditions of this
Agreement, but not its existence, and all other information which is designated
in writing as confidential by one party to the other. Notwithstanding the
foregoing, each party may make such disclosures as may be required by order of
a court of competent jurisdiction, administrative agency or other government
body, or by law rule or regulation, provided, however, that to the extent
possible, the Receiving Party required to disclose the information shall give
the Disclosing Party prior written notice of such requirement and shall assist
in its efforts to oppose such requirement. Neither party shall use the
Confidential Information of the other to develop or have developed any product
which has the same functions as the software of the other party or which would
be in direct or indirect competition with the software of the other party,
without express prior written
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consent.
11.2 Exclusions. Paragraph 9.2 hereof shall not apply to any Confidential
Information which (a) at the time of disclosure is in the public domain or
thereafter enters the public domain for reasons not attributable to any act or
omission of the Receiving Party in breach of its obligations hereunder, (b)
which the Receiving Party can show was in its possession prior to the
disclosure thereof by the Disclosing Party, or (c) which the Receiving Party
can show was acquired by the Receiving Party from a third party who discloses
it in good faith and does not thereby breach an obligation of confidence to the
Disclosing Party.
12 EXPORTS
12.1 Territory. The Marketing Agent may not market or export the Software
outside of the Territory without Phoenix's prior written approval.
13 EMPLOYEES
During the term of this Agreement and for a period of twelve (12) months
thereafter, neither party will directly or indirectly solicit for employment or
employ any employee of the other without the prior written consent of the
other.
14 GENERAL
14.1 No Authority to Bind the Other Party. The parties to this Agreement
are independent contractors and, except as provided in this Agreement or
otherwise in a writing signed by both parties, neither party is authorized to
act on behalf of the other or to bind the other. This Agreement does not
establish any relationship of agency, partnership, or joint venture. Each
party shall bear responsibility for its own employees, including terms of
employment, wages, hours, tax withholding, required insurance, and daily
direction and control. Except as otherwise set forth in an Addendum, the
relationship created hereunder is non-exclusive as to each party.
14.2 Successors and Assigns. Except as otherwise provided in this
Agreement, neither party may assign this Agreement or any rights or obligations
hereunder without the prior written consent of the other party which consent
shall not be unreasonably withheld. Any such attempted assignment without
such prior written consent shall be void and of no force and effect.
Notwithstanding the foregoing, Phoenix may assign this agreement to any
successor to all or substantially all of its business. This Agreement shall
inure to the benefit of and shall be binding upon the permitted successors and
assigns of the parties hereto.
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14.3 Governing Law; Jurisdiction. The construction and interpretation of,
and the rights and obligations of the parties pursuant to this Agreement shall
be governed by the laws of the State of Florida.
14.4 Force Majeure. Neither party shall be liable for any failure of or
delay in the performance of this Agreement for the period that such failure or
delay is due to acts of God, public enemy, civil war, strikes or labor
disputes, or any other cause beyond the parties' reasonable control. Each
party agrees to notify the other party promptly of the occurrence of any such
cause and to carry out this Agreement as promptly as practicable after such
cause has terminated.
14.5 Severability. In the event that any part of this Agreement is
declared by any court or other judicial or administrative body to be null, void
or unenforceable, said provision shall survive to the extent if is not so
declared, and all of the other provisions of this Agreement shall remain in
full force and effect.
14.6 Notices. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given: (i) on the date of service if served personally on the party to whom
notice is to be given; (ii) on the day of transmission if sent via facsimile
transmission to the facsimile number given below, and telephonic confirmation
of receipt is obtained promptly after completion of transmission; (iii) on the
second day after delivery to Federal Express or similar overnight courier or
the Express Mail service maintained by the United States Postal Service; or
(iv) on the fifth day after mailing, if mailed to the party to whom notice is
to be given, by first class air mail, registered or certified, postage prepaid
and properly addressed, to the party as follows:
If to the Phoenix:
Phoenix International Ltd., Inc.
900 Winderley Place
Suite 140
Maitland, Florida 32751
Attention: Ralph Reichard
Facsimile: (407) 667-0133
If to the Marketing Agent, at the address first set forth above.
Any party may change its address for the purpose of this Section by
giving the other parties written notice of its new address in the manner set
forth above.
14.7 Amendments; Waivers. This Agreement may be amended or modified, and
any of the terms, covenants, representations, warranties or conditions hereof
may be waived, only by a
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written instrument executed by the parties hereto, or in the case of a waiver,
by the party waiving compliance. Any waiver by any party of a condition, or of
the breach of any provision, term, covenant, representation or warranty
contained in this Agreement, in any one or more instances, shall not be deemed
to be nor construed as furthering or continuing waiver of any such condition,
or of the breach of any other provision, term, covenant, representation or
warranty of this Agreement.
14.8 Public Announcements. Neither party shall make any press release or
public announcement concerning this transaction without the prior written
approval of the other party unless a press release or public announcement is
required by law or by regulations binding upon any of the parties or their
affiliates, in which case, the disclosing party agrees to give the
non-disclosing party prior notice and an opportunity to comment on the proposed
disclosure.
14.9 Entire Agreement. This Agreement contains the entire understanding
between the parties hereto with respect to the transactions contemplated hereby
and supersedes and replaces all prior and contemporaneous agreements and
understandings, oral or written, with regard to such transactions. All
schedules and addenda hereto and any documents and instruments delivered
pursuant to any provision hereof are expressly made a part of this Agreement as
fully as though completely set forth herein. The rights of the parties are
only as set forth herein, and there are and shall be no implied rights or
obligations whatsoever.
14.10 Parties in Interest. Nothing in this Agreement is intended to confer
any rights or remedies under this Agreement on any persons other than Phoenix
and the Marketing Agent and their respective successors and permitted assigns.
Nothing in this Agreement is intended to relieve or discharge the obligations
or liability of any third persons to Phoenix or the Marketing Agent.
14.11 Section and Paragraph Headings. The section and paragraph headings in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
14.12 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but both of which shall constitute the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
Phoenix International Ltd., Inc.: Marketing Agent:
ISC Financial systems, Inc.
By: /s/ Ralph Reichard By:/s/ David Reckseit
------------------------------- ------------------------------------
Signature Signature
Ralph Reichard David Reckseit
- ---------------------------------- ---------------------------------------
Name (Print) Name (Print)
President & COO President
- ---------------------------------- ---------------------------------------
Title Title
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XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
SERVICES ADDENDUM
This Addendum provides additional terms defining the relationship between the
Marketing Agent and Phoenix. The terms and conditions contained herein are in
addition to those contained in the applicable Cooperative Agreement. If any
terms contained herein are inconsistent with the terms of the Cooperative
Agreement, the Cooperative Agreement shall control.
Whereas Phoenix and the Marketing Agent may wish to procure the services of one
another for their own benefit and for the benefit of their customers; and
Whereas Phoenix and the Marketing Agent may prepare budgets and customer
quotations based on the cost of such services, Phoenix and the Marketing Agent
agree to provide services to one another and on each other's behalf on the
following terms:
1 Direct Services. From time to time, Phoenix and the Marketing Agent
may provide services to one another, including without limitation
implementation and integration services and assistance, custom software and
systems development, modification and enhancement, and customer support
assistance. Such services shall be provided at XXXXXXXXXXXXXX for such
services (the "Discounted Rate").
2 Phoenix Customer Services. At the Marketing Agent's request, Phoenix
may provide services to customers of the Marketing Agent or to the Marketing
Agent on the customer's behalf that the Marketing Agent would normally be
obligated to provide under the terms of the relationship between Phoenix and
the Marketing Agent or between the Marketing Agent and its customers. For all
such services which Phoenix agrees to provide, the Marketing Agent shall pay to
Phoenix XXXXXXX for such services or XXXXXXX by the Marketing Agent to the End
User for such services, whichever is greater.
3 Marketing Agent Customer Services. For all services provided by the
Marketing Agent to customers of Phoenix or Phoenix's affiliates and business
and Marketing Agents, the Marketing Agent shall negotiate rates in good faith,
and in all cases such rates shall be at least as favorable as the Marketing
Agent's then current published rates for such services. Such services may be
provided by the Marketing Agent directly to customers or as a subcontractor to
Phoenix or other parties.
4 Most Favorable Terms. All rates referred to herein before shall be at
least as favorable as the rates provided by the applicable party to any of its
other customers, Marketing Agents or consultants.
5 Materials. Materials provided by one party to the other or to the
other's customers (other than the Software and other proprietary software and
hardware of either party) shall be billed
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at the applicable party's actual cost for such materials.
6 Disclaimer. Notwithstanding the foregoing, neither party shall be
obligated to provide services to the other or to any other party without prior
approval on a case by case basis (other than those services required to be
provided under the terms of this or any other agreement).
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
Phoenix International Ltd., Inc.: Marketing Agent:
ISC Financial systems, Inc.
By: /s/ Ralph Reichard By:/s/ David Reckseit
---------------------------------- ---------------------------------
Signature Signature
Ralph Reichard David Reckseit
- ------------------------------------- ------------------------------------
Name (Print) Name (Print)
President & COO President
- ------------------------------------- ------------------------------------
Title Title
16
<PAGE> 17
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
TRAINING, IMPLEMENTATION, AND SUPPORT ADDENDUM
This Addendum provides additional terms defining the relationship between the
Marketing Agent and Phoenix. The terms and conditions contained herein are in
addition to those contained in the applicable Cooperative Marketing Agreement.
If any terms contained herein are inconsistent with the terms of the
Cooperative Marketing Agreement, the Cooperative Marketing Agreement shall
control.
1 Training and Certification. Phoenix shall assist the Marketing Agent
in the first XXXX installations of the Software for End Users and shall
concurrently train the Marketing Agent's personnel in the implementation of the
Software. Additionally, the Marketing Agent's personnel shall be entitled to
attend the training sessions for the first XXXX End Users at no cost. In the
event that the first Xx installations are current users of Marketing Agent's
software, the XXX assisted installation will be deferred to the first customer
that is not a current user of Marketing Agent's software. Upon completion of
such training, Phoenix shall certify certain of the Marketing Agent's personnel
to implement the Software. The Marketing Agent shall pay Phoenix's reasonable
travel, living, facility and equipment expenses for such training, but shall
not be charged for instructor time. Up to the limit established by Phoenix,
Phoenix shall provide training materials. Additional materials will be
available for purchase at Phoenix's cost.
2 Right to Implement. Once the Marketing Agent's personnel have
completed the requisite training and have been certified for installation and
implementation of the software by Phoenix, the Marketing Agent may implement
the Software in accordance with this Agreement hereto, but only under the
direction and supervision of certified personnel. All implementations of the
Software shall follow Phoenix's methodology as taught in the training sessions.
Phoenix shall provide written documentation of the implementation methodology
along with training materials and instructors aids.
3 Additional License. Once the training has been completed, the
Marketing Agent shall have the additional right and license to do the following
with respect to the Software:
3.1 To use the Software for the purpose of installing, maintaining and
marketing the Software for End Users as provided for hereunder.
3.2 To Maintain and Support the Software licensed to End Users, and to
train End Users in the use of the Software and for other educational purposes.
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3.3 To use any conversion programs and methods that Phoenix may posses
that are applicable to Marketing Agents End Users at no cost.
4 Maintenance and Support. Once training has been completed, the
Marketing Agent shall be responsible for all Maintenance and Support of End
Users. The Marketing Agent shall enter into a Maintenance and Support
Agreement with each End User who chooses to accept Maintenance and Support.
The Maintenance and Support Agreement shall be presented to Phoenix prior to
use with End Users, and shall be in a form and contain such terms as are
acceptable to Phoenix. If, at any time, the Marketing Agent materially fails
to provide Maintenance and Support under an agreement with an End User, Phoenix
shall assume the Marketing Agent's responsibilities under such agreement, the
Marketing Agent shall assign the agreement to Phoenix, and the Marketing Agent
shall forward to Phoenix all maintenance and support fees received from such
End User for the period for which Phoenix assumes maintenance and support
obligations, including fees received prior to the assignment for services
provided by Phoenix after the assignment.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
Phoenix Internatinal Ltd., Inc.: Marketing Agent:
ISC Financial systems, Inc.
By: /s/ Ralph Reichard By:/s/ David Reckseit
--------------------------------- --------------------------------
Signature Signature
Ralph Reichard David Reckseit
- ------------------------------------ -----------------------------------
Name (Print) Name (Print)
President & COO President
- ------------------------------------ -----------------------------------
Title Title
18
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XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
RELATIONSHIP ADDENDUM
MARKETING AGENT
This Addendum provides additional terms defining the relationship between the
Marketing Agent and Phoenix. The terms and conditions contained herein are in
addition to those contained in the applicable Cooperative Agreement. If any
terms contained herein are inconsistent with the terms of the Cooperative
Agreement, the Cooperative Agreement shall control.
1 Marketing. Phoenix and the Marketing Agent will identify and
introduce prospective customers to each other and will facilitate
communications and the development of business relationships with such parties.
2 End User Licenses. The Marketing Agent shall present an End User
License to each potential Customer and shall cause all customers to execute an
End User License prior to delivery or installation of the Software. The
Marketing Agent shall forward each executed End User License to Phoenix for
acceptance and signature.
3 Prices. All License and Maintenance Fees for the Software shall
conform to Phoenix's standard pricing guides, except as expressly agreed in
writing by Phoenix and the Marketing Agent, and shall in all cases be at least
as favorable as the fees charged by Phoenix to its customers directly.
Initially, the license fees for customers of the Marketing Agent shall be as
follows:
<TABLE>
<CAPTION>
Customer Assets Initial License Fee
--------------- -------------------
<S> <C>
DeNovo XXXX
XXX XXXX
XXX XXXX
XXX XXXX
XXX XXXX
XXX XXXX
XXX XXXX
</TABLE>
Phoenix's fees for those financial institutions currently using the banking
software of the Marketing Agent who switch to the Phoenix Software shall be
based upon the actual fees charged by the Marketing Agent, or XXXXXXXX set
forth above, whichever is greater.
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XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
Annual Maintenance Fees shall be XXXXXX.
4 Fees. The Marketing Agent shall be responsible for the invoice and
collecting all license, implementation, maintenance and other fees paid by End
Users purchasing the Software due to the marketing efforts of the Marketing
Agent.
4.1 License Fees. The Marketing Agent shall forward the
following percentages of all license fees to Phoenix:
1st XXXX End Users: XX
All other End Users: XX
All amounts due Phoenix shall be paid within 15 days after receipt of
such fees by the Marketing Agent, but in all cases, whether or not fees have
actually been collected by the Marketing Agent, XXXXXXXX to Phoenix for each
End User shall be paid to Phoenix no later than 30 days following execution of
the End User License, XXXXXXX Phoenix for each End User shall be paid to
Phoenix no later than 30 days following the completion of Implementation of the
Software for each End User, and all amounts due Phoenix shall be paid to
Phoenix no later than 90 days following the completion of Implementation for
each End User.
4.2 Implementation Fees. The Marketing Agent shall forward
XXXXXXXXX for the first XXXX End Users to Phoenix within 15 days of
receipt of such fees. Thereafter, the Marketing Agent shall keep all
implementation and training fees for services provided to End Users by
the Marketing Agent and shall forward to Phoenix XXXXXXXXXXXXXX
provided by Phoenix to End Users.
4.3 Maintenance Fees. The Marketing Agent shall forward to
Phoenix the following percentage of all Maintenance Fees collected
from End Users within 15 days of receipt of such fees by the Marketing
Agent.
Year 1 maintenance fees
for each End User: XXX
After Year 1, maintenance
fees for each End User: XXX
4.4 Other Fees. The Marketing Agent shall keep XXXXXXXXXXXX
services provided to End Users other than as set forth above.
20
<PAGE> 21
5 Expenses. The Marketing Agent will be responsible for the marketing
expenses of its personnel hereunder and Phoenix shall be responsible for the
expenses of Phoenix personnel.
6 Complementary Products and Services. The Marketing Agent may provide
to End Users complementary products and services as certified by Phoenix for
provision to End Users as such may be approved by Phoenix from time to time.
Such products and services shall be provided pursuant to an agreement between
the End User and the Marketing Agent. Phoenix shall have the right and
opportunity to approve all such agreements, which approval shall not be
unreasonably withheld. The Marketing Agent may request that such products and
services be included in the End User License. Phoenix will use its best
efforts to include such products and services in End User Licenses. Such
products and services shall be provided on reasonable terms and conditions no
less favorable than the terms and conditions under which the Marketing Agent
offers similar products and services to its other customers.
Any complementary products or services provided to End Users that are not
certified by Phoenix are the sole responsibility of Marketing Agent.
7 Implementation. If the Marketing Agent has executed a Training,
Implementation, and Support Addendum and complied with the terms therein, then
the Marketing Agent may implement the software sold as a result of the
Marketing Agent's efforts. All Software not implemented by the Marketing Agent
shall be implemented by or at the direction of Phoenix. Phoenix shall supply
the Marketing Agent with one copy of the Software and Documentation on the
appropriate electronic media for implementation for each fully executed End
User License presented to Phoenix along with Phoenix's percentage of the
license fees for such End User.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
Phoenix Internatinal Ltd., Inc.: Marketing Agent:
ISC Financial systems, Inc.
By: /s/ Ralph Reichard By:/s/ David Reckseit
------------------------------- ------------------------------------
Signature Signature
Ralph Reichard David Reckseit
- ---------------------------------- ---------------------------------------
Name (Print) Name (Print)
President & COO President
- ---------------------------------- ---------------------------------------
Title Title
21
<PAGE> 22
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
SERVICE BUREAU ADDENDUM
This Addendum provides additional terms defining the relationship between the
Marketing Agent and Phoenix. The terms and conditions contained herein are in
addition to those contained in the applicable Cooperative Agreement. If any
terms contained herein are inconsistent with the terms of the Cooperative
Agreement, the Cooperative Agreement shall control.
1 Service Bureau Arrangement. The Marketing Agent may use the Software
for outsourcing data services to Eligible Prospects within the Territory.
2 Fees. The Marketing Agent shall forward to Phoenix a percentage of
all revenue (except for direct pass-through) received from outsourcing
activities. The percentages shall be based on the XXXXXXXXXXXXXXXXXXXX
received by the Marketing Agent from XXXXXXXXX involving the use of the Phoenix
Software as follows:
<TABLE>
<CAPTION>
Monthly Revenues % Paid to Phoenix
---------------- -----------------
<S> <C>
Less than XXXX XX
XXX to XXX XX
XXX to XXX XX
Greater thanXXX XX
</TABLE>
All amounts due Phoenix shall be forwarded to Phoenix within 30 days of the end
of the month in which they are earned by the Marketing Agent. The Marketing
Agent shall be responsible for the collection of all outsourcing revenue due to
its activities. For each outsourcing client of Marketing Agent who uses the
Software, the amount of revenue attributable to the Software shall be
XXXXXXXXXXXXXXXXX (excluding direct pass-through) received from the client each
month.
22
<PAGE> 23
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
Phoenix Internatinal Ltd., Inc.: Marketing Agent:
ISC Financial systems, Inc.
By: /s/ Ralph Reichard By:/s/ David Reckseit
-------------------------------- -----------------------------------
Signature Signature
Ralph Reichard David Reckseit
- ----------------------------------- --------------------------------------
Name (Print) Name (Print)
President & COO President
- ----------------------------------- --------------------------------------
Title Title
23
<PAGE> 24
EXHIBIT A
SOFTWARE
Means the software generally referred to as the Phoenix Retail Banking System
24
<PAGE> 25
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
EXHIBIT B
TERRITORY
The Territory shall be as follows:
1) Ohio
2) Kentucky
Pennsylvania (as far East as Harrisburg)
West Virginia
The Marketing Agent's territory includes only those financial institutions,
including commercial banks, savings banks, thrifts, and credit unions with
their primary operations based in the above territory, and with assets less
than $150 Million. The Territory is non-exclusive (except as provided below).
Phoenix may approve, in its sole discretion, marketing to institutions outside
the Territory or institutions in the Territory with assets in excess of $150
Million upon written request by the Marketing Agent.
Notwithstanding the foregoing, the Marketing Agent shall have the exclusive
right to market the Software to the following financial institutions:
XXXXXXX
XXXXXXX
XXXXXXX
XXXXXXX
XXXXXXX
XXXXXXX
XXXXXXX
XXXXXXX
XXXXXXX
Ohio shall be the exclusive territory of the Marketing Agent for Eligible
Prospects with less than $150 Milion in assets as long as the following
minimum sales are met by the Marketing Agent:
Sale of the Software to XX End User within Ohio within XX months of the date
of this Agreement Sale of the Software to XX End Users within Ohio within XX
months of the date of this Agreement
25
<PAGE> 1
EXHIBIT 10.44
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
DYAD CORPORATION
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is entered into as of
March 5, 1997, by and among Dyad Corporation, a Georgia corporation ("Dyad"),
and Phoenix International Ltd., Inc., a Florida corporation ("Phoenix").
W I T N E S S E T H
WHEREAS, Dyad was founded for the purpose and is in the process of
developing automated loan and mortgage products (including associated software,
hardware and documentation);
WHEREAS, Phoenix is in the business of developing and licensing
client/server core banking software to the banking industry;
WHEREAS, Phoenix wishes, pursuant to the terms of this Agreement, to
make a capital investment in Dyad and obtain an option to make a further
capital investment in Dyad; and
WHEREAS, Phoenix wishes to market and license Dyad's products to its
current and future customers domestically and to have the exclusive right to
market Dyad's products internationally pursuant to the terms of that certain
License and Distribution Agreement between Dyad and Phoenix of even date
herewith (the "License Agreement");
NOW THEREFORE, in consideration of the premises and the mutual
promises contained in this Agreement, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
SECTION 1.
PURCHASE OF COMMON STOCK
1.1 Sale of Shares. Dyad will issue and sell to Phoenix and
Phoenix will purchase from Dyad XXX newly issued shares (the "Shares") of
Dyad's common stock, no par value per share (the "Common Stock"), at a purchase
price of XXX per share, for a total purchase price of XXXXX (the "Purchase
Price").
1.2 Closing. Contemporaneously with the execution and delivery of
this Agreement by both parties, the following shall occur:
<PAGE> 2
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
(a) Phoenix shall deliver the Purchase Price to Dyad
either by wire transfer, cashier's check, or in such other form of immediately
available funds as may be agreed by the parties;
(b) Dyad shall deliver to Phoenix a stock certificate
made out in the name of Phoenix International Ltd., Inc. for the Shares; and
(c) Each party shall execute and deliver to the other the
License Agreement in such form as previously agreed by the parties.
SECTION 2.
GRANT OF OPTION
2.1 Option Grant. Subject to the terms and conditions set forth
herein, Dyad hereby grants to Phoenix an irrevocable, non-transferrable and
immediately exercisable option to purchase up to an additional XXXX shares (as
adjusted as set forth herein) of Common Stock (the "Option Shares"), at a
purchase price of XXXX (the "Option Purchase Price") per Option Share (the
"Option"). At any time after April 15, 1997, Dyad may call the Option by
delivering written notice thereof to Phoenix. The Option shall expire and
terminate 90 days after delivery of such notice to Phoenix as to any shares for
which an Exercise Notice has been not delivered prior to the end of such 90 day
period. If no such call notice is delivered by Dyad, the Option shall
automatically and without notice expire and terminate on March 7, 1998 (the
"Expiration Date") as to any Option Shares for which an Exercise Notice has not
been delivered to Dyad prior to the Expiration Date.
2.2 Exercise of Option. Provided that Phoenix is not in material
breach of its obligations or covenants hereunder or under the License
Agreement, Phoenix may exercise the Option as to any or all of the Option
Shares (provided that each exercise of the Option must be for a minimum of 100
Option Shares) at any time and from time to time prior to the Expiration Date
by delivering written notice thereof (an "Exercise Notice") to Dyad specifying
the number of Option Shares as to which Phoenix is exercising the Option.
Following receipt of a proper Exercise Notice, Phoenix and Dyad shall agree
upon a date and place for the closing of the purchase specified in the Exercise
Notice, which date shall be no later than 15 business days following receipt of
the Exercise Notice by Dyad (the "Option Closing Date").
2.3 Closing of Option Exercise. Upon each Option Closing Date the
following shall occur:
(a) Phoenix shall deliver to Dyad an amount equal to the
Option Purchase Price times the number of Option Shares set forth in the
Exercise Notice either by wire transfer, by cashier's check made out to Dyad,
or in such other form of immediately available funds as the parties may agree;
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<PAGE> 3
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
(b) Phoenix shall surrender this Agreement to Dyad and
the parties shall amend the Agreement to reflect the exercise of the Option for
the number of Option Shares purchased by Phoenix on such Option Closing Date;
(c) Phoenix shall exercise and deliver to Dyad a letter
containing such representations, covenants, and restrictions on transfer of the
Option Shares as may be required by Dyad with the advice of counsel for
compliance with federal and state laws;
(d) Dyad shall deliver to Phoenix a stock certificate
made out in the name of Phoenix International Ltd., Inc. for the number of
Option Shares set forth in the Exercise Notice; and
(e) Dyad shall deliver to Phoenix a certificate signed by
a duly authorized officer to the effect that all of the representations and
warranties of Dyad contained herein are and remain true in all material
respects as of the Option Closing Date.
2.4 Adjustment Upon Changes in Capitalization, etc.
In the event of any change in the number of outstanding shares
of Common Stock by reason of a stock dividend, stock split, split-up, merger,
recapitalization, combination, exchange of shares or similar transaction, the
type and number of shares or securities subject to the Option, and the Option
Purchase Price therefor, shall be adjusted appropriately, and proper provision
shall be made in the agreements governing such transaction so that Phoenix
shall receive upon exercise of the Option the number and class of shares or
other securities or property that Phoenix would have received in respect of
Common Stock if the Option had been exercised immediately prior to such event,
or the record date therefor, as applicable. If any additional shares of Common
Stock are issued after the date of this Agreement for cash or other
consideration with a fair market value less than the Option Purchase Price
(other than pursuant to an event described in the first sentence of this
Section 2.4), the number of shares of Common Stock subject to the Option shall
be increased by XX of the number of additional shares issued multiplied by (the
Option Purchase Price minus the issuance price per share) divided by the
Purchase Price, and the Option Purchase Price shall be adjusted so that the new
Option Purchase Price is equal to the then current Option Purchase Price
multiplied by XXX and divided by the aggregate of (i) the new number of shares
subject to the Option and (ii) the number of shares already purchased by
Phoenix pursuant to the Option (the effect of which should be for the total
price paid or to be paid by Phoenix for all shares under the Option to remain
at XXXXX. The foregoing sentence shall not apply to shares of Common Stock
issued in connection with any acquisition of the stock or assets of another
company, which is approved by Dyad's Board of Directors.
SECTION 3.
REPRESENTATIONS AND WARRANTIES OF DYAD
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<PAGE> 4
Except as set forth in the schedules of exceptions to representations
and warranties attached hereto (the "Disclosure Schedules"), which information
shall be deemed to be representations and warranties as if made hereunder, Dyad
represents and warrants to Phoenix as follows (Dyad refers to both Dyad and its
wholly-owned subsidiary Money Pro Inc.):
3.1 Organization and Standing. Dyad is a corporation duly
organized and existing under, and by virtue of, the laws of the State of
Georgia and is in good standing under such laws. Dyad has requisite corporate
power to own and operate its properties and assets, and to carry on its
business as currently conducted and as proposed to be conducted.
3.2 Corporate Power. Dyad has all requisite legal and corporate
power to execute and deliver this Agreement and the other agreements and
instruments referred to herein (collectively the "Transaction Documents"), to
sell and issue the Shares and to grant the Option hereunder, and to carry out
and perform all of its obligations under this Agreement.
3.3 Subsidiaries. Other than MPAcquisition Corp., a wholly-owned
subsidiary of Dyad, Dyad has no subsidiaries and does not otherwise own or
control, directly or indirectly, any equity interest in any other corporation,
association or business entity.
3.4 Capitalization. The authorized capital stock of Dyad consists
of 1,000,000 shares of Common Stock, of which 9,500 shares are issued and
outstanding (assuming the closing of the merger of MoneyPro, Inc. with and into
MPAcquisition Corp). All issued and outstanding shares of Common Stock have
been duly authorized and validly issued, are fully paid and nonassessable, and
were issued in compliance with all applicable federal and state securities
laws. Other than the Option, there are no outstanding warrants, options, or
other rights to purchase or acquire any shares of Common Stock or other equity
securities of Dyad.
3.5 Authorization. All corporate action on the part of Dyad, its
directors, and its shareholders necessary for the authorization, execution,
delivery and performance of the Transaction Documents by Dyad, the
authorization, sale, issuance and delivery of the Shares, the grant of the
Option and performance thereunder, and the performance of all of Dyad's
obligations hereunder and thereunder has been taken. The Transaction Documents
have been duly executed and delivered by Dyad and constitute the valid and
binding obligations of Dyad enforceable in accordance with their terms, except
as may be limited by principles of public policy, and subject to rules of law
governing specific performance, injunctive relief or other equitable remedies.
The Shares and the Option Shares, when issued in compliance with the provisions
of this Agreement, will be validly issued, will be fully paid and nonassessable
and will be free of any liens or encumbrances.
3.6 Title to Properties and Assets; Liens, etc. Dyad has good and
marketable title to its properties and assets, and has good title to all its
leasehold interests, in each case subject to no mortgage, pledge, lien, lease,
encumbrance or charge, other than possible minor liens and encumbrances which
do not in any case materially detract from the value of the property subject
thereto or materially impair the operations of Dyad, and which have not arisen
otherwise than in the ordinary course of business. The Disclosure Schedules
contain a list of all patents, computer programs, technologies, and related
documentation, trademarks, trade names, brand
-4-
<PAGE> 5
names and copyrights (in each case, whether or not registration has been
applied for or issued), and all licenses or rights with respect to any of the
foregoing, owned or possessed by Dyad, all of which, to the best knowledge of
Dyad, are in good standing and are 100% owned by Dyad free and clear of all
liens and encumbrances of any nature. To the best knowledge of Dyad, Dyad's
products and technologies do not infringe any patent, copyright, trademark or
the intellectual property rights of any other person. To the best knowledge of
Dyad, all trade secrets, know how, technical processes and procedures developed
and belonging to Dyad which are material to the business of Dyad and which have
not been patented have been kept confidential. To the best knowledge of Dyad,
Dyad has the right to use, free and clear of claims or rights of others, all
trade secrets, customer lists, processes, computer software, patents,
copyrights and trademarks required for, incident to or included in its products
and is not using and has not used any confidential information, trade secrets,
or computer software required for its products of any former employer of any of
its past or present employees.
3.7 Compliance With Other Instruments. Dyad is not in violation
in any material respect of, and the execution, delivery, and performance under
the Transaction Documents will not result in any violation or breach of, any
term of its Articles of Incorporation or Bylaws, as amended and restated to
date, or in any material respect of any term or provision of any indebtedness,
agreement, instrument, judgment, order, statute, or regulation applicable to
Dyad or by which Dyad is bound. The execution, delivery and performance of and
compliance with the Transaction Documents, and the issuance of the Shares and
the Option, have not resulted and will not result in any material violation of,
or conflict with, or constitute a material default under, any indebtedness,
agreement, instrument, judgment, order, statute, or regulation applicable to
Dyad or by which Dyad is bound, or result in the creation of any encumbrance
upon any of the properties or assets of Dyad, and there is no such violation or
default which materially and adversely affects the business of Dyad, or any of
Dyad's properties or assets.
3.8 Undisclosed Liabilities. Except as set forth in the
Disclosure Schedules, at January 1, 1997, Dyad had no material liabilities or
obligations of any nature, whether absolute, accrued, contingent or otherwise,
and whether due or to become due. Since January 1, 1997, Dyad has incurred no
material liabilities other than in the ordinary course of its business.
3.9 Absence of Certain Changes or Events. Except as disclosed in
the Disclosure Schedules, Dyad has not incurred any liability (fixed or
contingent), except trade or business obligations incurred in the ordinary
course of business, none of which are materially adverse; subjected any of its
assets or properties to any lien or other encumbrance; transferred any of its
assets or properties or transferred or granted any rights under or with
respect to any license, agreement, trademark, trade name, copyright, know-how
or technical assistance; made or entered into any contract or commitment; or
declared any dividend or made any payment or distribution to Dyad's
shareholders.
3.10 Books and Records. Except as disclosed in the Disclosure
Schedules, the stock books, minute books, books of account, ledgers of account,
computer data and other financial and corporate records of Dyad are in all
material respects complete and correct and are maintained in accordance with
good business practices. Dyad has not made any questionable, improper or
illegal corporate payments, guarantees or commitments. Except as disclosed in
the
-5-
<PAGE> 6
Disclosure Schedules, the minute books of Dyad contain accurate records of all
meetings and accurately reflect all corporate actions of the shareholders and
directors of Dyad. Dyad's officers, directors, and shareholders are listed in
the Disclosure Schedules.
3.11 Contracts. All contracts to which Dyad is a party or to which
its assets are bound are listed on the Disclosure Schedules.
3.12 Litigation. Dyad has not instituted, and is not a party to,
any proceeding or investigation against any party. Except as disclosed in the
Disclosure Schedules, there are no proceedings or investigations pending
against Dyad or its properties before any court or governmental agency (nor, to
the best of Dyad's and knowledge, is there any reasonable basis therefor or
threat thereof), which, either in any case or in the aggregate, might result in
any material adverse change in the business or financial condition of Dyad or
any of its properties or assets, or in any material impairment of the right or
ability of Dyad to carry on its business, or in any material liability on the
part of Dyad, and none of which questions the validity of this Agreement or any
action taken or to be taken in connection herewith and therewith.
3.13 Employees. To the best of Dyad's knowledge, after reasonable
investigation, no employee or consultant of Dyad is in violation of any term of
any employment contract, intellectual property disclosure agreement, or any
other contract or agreement relating to the relationship of any such person
with Dyad or any other party because of the nature of the business conducted or
proposed to be conducted by Dyad. Dyad does not have any collective bargaining
agreements covering any of its employees. Dyad is not aware of any key
employee of Dyad who has any plans to terminate his or her employment with
Dyad.
3.14 Governmental Consent, Etc. No consent, approval or
authorization of or designation, declaration or filing with any governmental
authority on the part of Dyad is required in connection with the valid
execution and delivery of this Agreement, or the offer, sale or issuance of the
Shares, or the consummation of any other transaction contemplated hereby.
3.15 Offering. Subject to the accuracy of Phoenix' representations
in Section 4 hereof, the offer, sale and issuance of the Shares to be issued in
conformity with the terms of this Agreement constitute transactions exempt from
the registration requirements of the Securities Act of 1933 (the "Securities
Act").
3.16 Relationship with Affiliates; No Conflict of Interest. All of
the statements in this Agreement, together with the statements in the
Disclosure Schedules, are true and contain a complete description of Dyad's
relationship with any firm or corporation with which Dyad is affiliated or with
which Dyad has a business relationship, or any firm or corporation which
competes with Dyad. None of Dyad's officers, directors, or shareholders, or
any members of their immediate families are indebted to Dyad or, except as
disclosed in the Disclosure Schedules, have any direct or indirect ownership
interest in any firm or corporation with which Dyad is affiliated or with which
Dyad has a business relationship, or any firm or corporation which competes
with Dyad. None of Dyad's officers, directors or shareholders, or any member
of their immediate families, has any direct or indirect interest in any
material contract with
-6-
<PAGE> 7
Dyad. Dyad is not a guarantor or indemnitor of any indebtedness of any other
person, firm or corporation.
3.17 Material Facts. This Agreement, the Disclosure Schedules, and
each other agreement, document, certificate or written statement furnished, or
to be furnished, through the Closing by or on behalf of Dyad in connection with
the transactions contemplated hereby, taken as a whole, does not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements contained therein or herein in light of the
circumstances in which they were made not misleading. To the best knowledge of
Dyad, there is no fact which has not been disclosed herein or in the Disclosure
Schedules hereto to Phoenix which may materially adversely affect the business,
properties, assets or condition, financial or otherwise, of Dyad, except for
facts relating to general economic and regulatory conditions which may affect
all companies which are in a similar industry in the same manner.
SECTION 4.
REPRESENTATIONS AND WARRANTIES OF PHOENIX
Phoenix hereby represents and warrants to Dyad as follows:
4.1 Experience. Phoenix is a corporation with total assets as of
the date of this Agreement in excess of $5,000,000, and has experience in
evaluating and investing in private placement transactions and is capable of
evaluating the merits and risks of its investment in Dyad. Furthermore,
Phoenix has evaluated such merits and risks, and on the basis of such
evaluation desires to enter into the transactions contemplated herein. Phoenix
acknowledges that all documents, records, and books pertaining to Dyad have
been made available for inspection by Phoenix and Phoenix understands that the
books and records of Dyad will continue to be made available to Phoenix for
inspection upon reasonable notice, during reasonable business hours, at the
principal place of business of Dyad. Phoenix and its adviser or advisers have
had a reasonable opportunity to ask questions of and receive answers from the
officers of Dyad, or a person or persons acting on their behalf, concerning the
terms and conditions of the offering of the Shares and Option Shares, and to
obtain additional information, to the extent possessed or obtainable without
unreasonable effort or expense by the officers of Dyad. all such questions
have been answered to the full satisfaction of Phoenix.
4.2 Investment. Phoenix is acquiring the Shares for its own
individual account, not as a nominee or agent, and not with the view to, or for
resale in connection with, any distribution thereof. Phoenix understands that
the Shares have not been, and will not be, registered under the Securities Act
or any state securities laws by reason of a specific exemption from the
registration provisions of the Securities Act and the applicable state's
securities laws which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of such Purchaser's representations as
expressed herein.
4.3 Power. Phoenix has all requisite legal power to execute and
deliver this Agreement, to purchase the Shares hereunder, and to carry out and
perform its obligations under the terms of the Transaction Documents.
-7-
<PAGE> 8
4.4 Authorization. This Agreement, when executed and delivered by
Phoenix, shall constitute the valid and binding obligation of Phoenix
enforceable in accordance with its terms, except as may be limited by
principles of public policy, and subject to rules of law governing specific
performance, injunctive relief or other equitable remedies.
SECTION 5.
MISCELLANEOUS
5.1 Restrictive Legends. All certificates for shares of Common
Stock delivered to Phoenix hereunder shall contain the following restrictive
legend and such other restrictive legends as may be required under state or
federal law:
THE SALE OF THE SHARES REPRESENTED BY THIS CERTIFICATE HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR THE
SECURITIES LAWS OF ANY STATE. THE SHARES HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO OR FOR RESALE IN CONNECTION WITH THE
DISTRIBUTION THEREOF. NO DISPOSITION OF THE SHARES MAY BE MADE IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND
COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF
COUNSEL TO THIS CORPORATION TO THE EFFECT THAT SUCH DISPOSITION IS IN
COMPLIANCE WITH THE ACT AND APPLICABLE STATE SECURITIES LAWS.
Such legend shall be removed by delivery of a substitute certificate(s) without
such a legend upon delivery to Dyad of a letter from the staff of the SEC or an
opinion of counsel in form and substance satisfactory to Dyad and its counsel
to the effect that such legend is no longer required under applicable law.
5.2 Termination. Dyad may terminate the Option upon written
notice to Phoenix at any time upon the material breach by Phoenix of its
representations and warranties hereunder or of its obligations or covenants
under this Agreement, the Shareholder Agreement or the License Agreement, which
breach is not cured within 15 days following notice thereof to Phoenix from
Dyad.
5.3 Survival. The representations, warranties, covenants and
agreements made herein shall survive the closing of the transactions
contemplated hereby.
5.4 Entire Agreement; Amendment. This Agreement and the other
documents delivered pursuant hereto constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof, and no party shall be liable or bound to any other party in
any manner by any warranties, representations or covenants except as
specifically set forth herein or therein. Except as expressly provided herein,
neither this Agreement nor any term hereof may be amended, waived, discharged
or terminated other than
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<PAGE> 9
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
by a written instrument signed by the party against whom enforcement of any
such amendment, waiver, discharge or termination is sought.
5.5 Notices, Etc. All notices and other communications required
or permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand, messenger or
telecopy, addressed as follows:
if to Phoenix: Phoenix International Ltd., Inc.
500 International Parkway
Heathrow, Florida 32746
Attn: Bahram Yusefzadeh
if to Dyad: Dyad Corporation
3150 Holcomb Bridge Road
Suite 200
Norcross, GA 30071
Attn: xxx
or at such other address as a party shall have properly notified to the other
parties. Each such notice or other communication shall for all purposes of
this Agreement be effective when delivered or received if delivered personally,
by facsimile, by U.S. mail return receipt requested, or by overnight courier
service such as United Parcel Service or FedEx.
5.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
5.7 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement.
5.8 Severability. The agreements and undertaking of parties
contained in this agreement shall each be construed as an agreement and
undertaking independent of any other provision of this agreement. The parties
hereby expressly agree that it is not the intention of any party to violate any
public policy, statutory or common law, and that if any sentence, paragraph,
clause or combination of the same is in violation of applicable law, such
sentence, paragraph, clause or combination of the same alone shall be void in
the jurisdiction where it is unlawful, and the remainder of such clause and
this agreement shall remain binding upon the parties hereto. In the event that
any provision hereof is determined to be overly broad or unenforceable, the
parties hereto agree to the modification of such provisions to the minimum
extent required to make them valid and enforceable.
5.9 Parties Bound by Agreement; Successors and Assigns. The
terms, conditions and obligations of this Agreement shall inure to the benefit
of and be binding upon the parties hereto and the respective successors and
assigns thereof. Without the prior written consent of the other
-9-
<PAGE> 1
EXHIBIT 10.45
CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION.
DYAD CORPORATION
LICENSE AND DISTRIBUTION AGREEMENT
This License and Distribution Agreement (this "Agreement") is entered
into as of March 5, 1997 by and between Phoenix International Ltd., Inc., a
Florida corporation ("Phoenix"), and Dyad Corporation, a Georgia corporation
("Dyad").
RECITALS
Dyad is in the process of developing certain automated loan, mortgage
and financial services delivery machines for use in the financial services
industry. Phoenix has made a capital investment in Dyad pursuant to the Stock
Purchase Agreement between them of even date herewith, and wishes to promote
and sell Dyad's products domestically in conjunction with its own products and
to have an exclusive right to promote and sell Dyad's products internationally.
NOW, THEREFORE, in consideration and furtherance of the foregoing, the
parties hereto, intending to be legally bound, agree as follows:
1. DEFINITIONS
As used in this Agreement, capitalized terms shall have the following
meanings:
1.1. Confidential Information means any business, technical or
other information furnished by one party hereto to the other
or disclosed to the other as a result of examination or
inspection of the other party's facilities or products,
whether such information is disclosed in writing or orally.
Confidential Information shall in all cases include all source
and object code, development level documentation, and similar
technical information regarding the Products and Phoenix
Software and all marketing, business and product development
information. Confidential Information shall not include
information which (a) at the time of disclosure is in the
public domain or thereafter enters the public domain for
reasons not attributable to any act or omission of the
receiving party in breach of its obligations hereunder, (b)
which the receiving party can show was in its possession prior
to the disclosure thereof by the disclosing party, or (c)
which the receiving party can show it acquired from a third
party who does not thereby breach an obligation of confidence
to the disclosing party and who discloses it in good faith.
1.2. Documentation means the documentation associated with the
Products as produced and provided by Dyad to Phoenix.
<PAGE> 2
1.3. End User means a customer who purchases the Products and/or
licenses the Software from Phoenix.
1.4. End User License means the agreement to be entered into
between Phoenix and each End User pursuant to Section 9.1
granting the End User a license to use the Products and/or the
Software.
1.5. Intellectual Property Rights means all copyrights and design
rights, whether registered or unregistered, patents or patent
applications, know-how, trade secrets, and Confidential
Information related to or arising in the Products, Software or
Documentation, including all applicable architecture, designs,
modules, routines, programming, command structures,
interfaces, and any Modifications thereto.
1.6. Modification means a work which is based upon one or more
preexisting works, such as a revision, modification,
translation, abridgement, condensation, expansion, or any
other form in which such preexisting works may be recast,
transformed, or adapted, and shall include any work that
incorporates or is combined with such a preexisting work or
any portion thereof.
1.7. Modify means to make a Modification.
1.8. Phoenix Customer means a U.S. customer of Phoenix who has
purchased a license for and is using the Phoenix Software.
1.9. Phoenix Marketing Agents means those persons who have been
authorized by Phoenix to sell, market and/or distribute the
Phoenix Software.
1.10. Phoenix Software means the software of Phoenix known as the
Phoenix Retail Banking System.
1.11. Prime Rate means the prime rate (or base rate) reported in the
"Money Rates" column or section of The Wall Street Journal as
being the base rate on corporate loans at larger U.S. money
center banks on the first date on which The Wall Street
Journal is published in each month.
1.12. Products means the current and future versions of the Dyad
products currently referred to by Dyad as the Automatic Loan
Machine and the MoneyPro Video Conferencing Kiosk System, and
the associated Software and Documentation. Additional
products may be added by agreement of the parties as they are
developed or acquired by Dyad.
1.13. Trademarks means the trademarks, service marks and trade names
used by Dyad in connection with the Products, whether
registered or unregistered.
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<PAGE> 3
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
1.14. Software means the Software developed and owned by Dyad and
required for operation of the Products, including all
interfaces, additions, and Modifications thereto and new
releases thereof delivered to Phoenix under this Agreement.
2. MARKETING APPOINTMENT
2.1. Domestic
Dyad hereby grants Phoenix the exclusive right to market, sell
and license the Products to Phoenix Customers, and the
non-exclusive right to market the Products to potential
Phoenix Customers and to market, license and sell the Products
to persons who originate loans or mortgages on behalf of
Phoenix' Customers, including by way of example car dealers,
furniture retailers, and real estate agents. Dyad shall not,
and shall not allow any of its other marketing or distribution
persons to market the Products to Phoenix' potential customers
who are actively considering and working with Phoenix
regarding a license for the Phoenix Software. Phoenix shall
provide a list of such potential customers to Dyad from time
to time.
2.2. International
Dyad hereby grants Phoenix the exclusive right to market, sell
and license the Products worldwide outside of the U.S. The
exclusivity of such international marketing right shall be
contingent upon Phoenix meeting the following minimum Net
Revenue (as defined in Section 5.3) from sale or license of
the Products and Software outside of the U.S.:
XXX by XXXXXXXXXXXX
If such target is not met by Phoenix, Phoenix' rights under
this Section 2.2 shall become immediately and automatically
non-exclusive. Additionally, such exclusivity may terminate
as set forth in Section 10.1 below.
2.3. Marketing Agents
Phoenix may sublicense the rights granted in this Section 2 to
any of its subsidiaries or Marketing Agents subject to the
following terms and restrictions: (a) Phoenix may not provide
any Product, or sublicense any rights hereunder, to any
competitor of Dyad or any person developing, marketing or
selling a competitive product; (b) such party is authorized to
and is actively marketing, licensing or distributing the
Phoenix Software; (c) Phoenix shall be responsible for
ensuring compliance by each such party with all applicable
terms and conditions of this Agreement respecting the use and
protection of the Confidential Information and Intellectual
Property Rights of Dyad; and (d) Phoenix shall use
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<PAGE> 4
the same amount of care and protection in dealing with
each such party with respect to the Products as it provides
and uses with respect to the Phoenix Software.
3. LICENSE
3.1. License Grant
Subject to the terms and conditions of this Agreement, and in
support of the other rights granted hereunder, Dyad hereby
grants Phoenix the following rights and licenses with respect
to the Products:
(a) To make copies of the Software in object code form
only and copies of the Documentation for distribution
to End Users as authorized by paragraph 3.1(b) below
and for use by Phoenix as authorized by paragraphs
3.1(c) and 3.1(d) below;
(b) To distribute copies of the Software to End Users who
have duly executed End User License Agreements
concerning the Products or the Software.
(c) To install and use the Software on Phoenix' own
computer systems and to use the Documentation for
demonstration, training and support of End Users.
(d) To make Modifications to the Software in conjunction
with Dyad as authorized by Section 4 below.
(e) To use the Trademarks relating to the Products,
provided, however, that such use shall be subject to
reasonable advertising and promotion guidelines which
Dyad may provide from time to time. Dyad reserves
the right to disallow any use of the Trademarks which
would in any way, in Dyad's opinion, harm the
validity or value of the Trademarks.
3.2. Restrictions
(a) Phoenix shall not copy, adapt, modify or reproduce
the Software in any manner whatsoever other than as
expressly provided in this Agreement without the
prior written consent of Dyad.
(b) Phoenix may not provide the Software to any third
party except pursuant to a fully executed End User
License or to Phoenix Marketing Agents pursuant to
Section 2.3.
(c) Phoenix may not use the Products in production for
the benefit of any third party, except as otherwise
allowed by written agreement between Dyad and
Phoenix.
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<PAGE> 5
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
(d) During the term of this Agreement for the two years
thereafter, Phoenix may not use, rely on, or refer to
the Products, the Software, or any Confidential
Information of Dyad to develop, have developed,
support or invest in, directly or indirectly, the
development of any product which has, entirely or
partially, the same functions as any of the Products
or Software or which would be in direct or indirect
competition with any of the Products, or to sell
competing products or services.
4. MODIFICATIONS
4.1. Product Interface
Dyad and Phoenix shall work in conjunction with one another to
develop an interface between the Products and the Phoenix
Software. Each party shall pay its own costs associated with
the development of such interface. Upon completion, those
parts of the interface which are separable from the Software
and the Phoenix Software shall be jointly owned by Phoenix and
Dyad.
4.2. Localization Modifications
From time to time, Phoenix may request that the Software be
Modified for use in other countries, which Modifications may
include translations into other languages and Modifications
required for compliance by the Products with local rules and
regulations governing financial institutions. Phoenix and
Dyad shall jointly develop the parameters for such
Modifications and a reasonable schedule for completion.
Unless otherwise agreed by the parties, such Modifications
shall be produced by Dyad, and Phoenix shall pay Dyad for such
Modifications at its then current time and material rates plus
travel and lodging expenses related to such Modifications.
5. REPORTING, FEES AND PAYMENT
5.1. Initial License Fee
Contemporaneously with the execution of this Agreement,
Phoenix shall pay Dyad a License Fee in the amount of XXXX for
the license of the Software to XXX of its customers. Such
amount shall be paid by delivering XXX to Dyad in immediately
available funds by either wire transfer or cashier's check, as
agreed by the parties, and by delivering a promissory note in
the amount of XXX, payable on or before XXXXX. No additional
license fee in excess of the continuing royalties below shall
be due for customers in excess of XXX.
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<PAGE> 6
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
5.2. Continuing Royalties
For payment of the initial license fee above, Phoenix may keep
the first XXX in Net Revenue (as defined below) from the sale,
license and maintenance of the Products. In addition to the
initial license fee, after the first XXXX in NetRevenue,
Phoenix shall pay to Dyad a percentage of its Net Revenues as
follows: (i) XX of the Net Revenue received by Phoenix from
the XXXXXX of the Products including, without limitation,
XXXXXXXXXXXXX; (ii) XXX of its Net Revenue from XXXXXXXX of
the Products; and (iii) Phoenix and Dyad shall XXXXXXXXX based
on XXXXXXXXXX. It is anticipated that Dyad will assist with
initial implementations and that Phoenix will eventually
handle implementations on its own. Amounts due Dyad hereunder
shall be paid to Dyad by the tenth business day following the
receipt of such revenue by Phoenix, and shall be accompanied
by the name of the End User, their address, and the number of
locations where each End User is using the Products.
5.3. Pricing and Determination of Net Revenue
(a) Phoenix and Dyad shall work together and use their
best efforts to jointly develop pricing terms for the
Products to be offered to End Users (the "Price
List"). Phoenix shall adhere to the Price List in
all sales and licenses of the Products and Software,
or any components thereof. The Price List shall be
reviewed by the parties periodically and revised to
reflect customer requirements, changes in the market,
products costs, and other relevant factors. Dyad
shall not offer pricing for the Products which are
materially better than those contained in the Price
List. Phoenix shall be responsible for the invoice
and collection of all fees owed by End Users.
(b) For purposes of this Agreement, Net Revenues shall be
defined as gross revenue received by Phoenix, minus
hardware and other out-of-pocket expenses reasonably
incurred by Phoenix associated with such revenue.
For the purpose of determining gross revenue, fees
collected by Phoenix shall be deemed to be the higher
of (i) the fees actually collected by Phoenix or (ii)
the fees set forth in the Price List. If the amount
of a particular fee cannot be determined because it
is included in the bulk fees for the Phoenix Software
or otherwise, the Price List fee shall be used to
determine gross revenue.
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<PAGE> 7
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
5.4. Other Fees
From time to time Dyad may provide additional programming or
consulting services to Phoenix not otherwise covered by this
Agreement. Such services shall be detailed in a work order
agreed to by both parties setting forth the services to be
provided and the estimated schedule for completion of such
services. Dyad shall bill Phoenix for such services
XXXXXXXXXXXXXXXXXXXXXXXX, plus reimbursement for reasonable
related travel, lodging, meals, and other out-of-pocket
expenses. Phoenix shall pay Dyad all properly invoiced
amounts therefore within ten business days following receipt
of such invoice.
5.5. Expenses
Except as otherwise expressly set forth herein, Phoenix shall
be responsible for all of its own marketing and other expenses
related to the subject matter of this Agreement.
5.6. Taxes
Phoenix shall be responsible for paying all U.S. and foreign
taxes that are imposed due to the transactions contemplated by
this Agreement, including all applicable excise, property,
VAT, sales and use, or similar taxes, any income taxes or
withholding requirement in addition to or in lieu thereof
(exclusive only of United States Federal, state or local taxes
based upon the net income of Dyad), and any customs, import,
export or other duties, levies, tariffs, taxes, or other
similar charges. Phoenix shall indemnify and hold Dyad
harmless from any and all expenses related to Phoenix failure
to pay such taxes, and if Dyad is required to pay any taxes
for which Phoenix is responsible hereunder, Phoenix shall
promptly reimburse Dyad therefore.
6. HARDWARE
Phoenix shall purchase, and shall cause all End Users to purchase, all
hardware required for the Products from Dyad (including the automatic
loan machines and the video kiosks for the mortgage system). Dyad
shall sell such hardware to Phoenix at cost. Upon request, Dyad will
review alternative hardware and software configurations proposed by
Phoenix and may, in its sole discretion, approve such configurations.
7. SOFTWARE INTEGRATION
Certain portions of the Software may be appropriate for use with the
Phoenix Software apart from their applicability to the functionality
of the Products. Dyad and Phoenix shall work together to identify
such components of the Software, and to formulate a plan for
integration of such software components with and into the Phoenix
Software. Phoenix and/or Dyad shall Modify such software components
as may be necessary to
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<PAGE> 8
enable them to work independently of the Products and in conjunction
with the Phoenix Software. Phoenix and Dyad shall work together to
enter into an agreement setting forth pricing, ownership, license, and
revenue sharing terms for the license of such Software products to
Phoenix' Customers. Such terms shall be no less favorable to Phoenix
than the terms of this Agreement. Phoenix shall bear and/or shall
reimburse Dyad for all costs associated with such Modifications.
8. OBLIGATIONS OF DYAD
8.1. Copies of the Software
Dyad shall provide Phoenix with a reasonable number of copies
of the Software and Documentation as necessary for Phoenix to
fulfill its obligations and exercise its rights hereunder.
All Software and Documentation shall be provided in English
unless otherwise translated as provided in Section 4.2 above.
8.2. Maintenance and Support
Dyad shall provide the following maintenance and support to
Phoenix for the Products:
(a) Dyad shall deliver all future Modifications and new
versions and releases of the Software to Phoenix
which Dyad has prepared for license to its customers.
Such Modifications and new releases shall become part
of the Products and subject to this Agreement upon
delivery.
(b) Dyad shall use its reasonable commercial efforts to
correct or provide work around solutions for material
reproducible errors in the Products reported to Dyad
by Phoenix. Phoenix shall provide all information
required by Dyad to reproduce and correct such
errors. Material errors are those which cause the
Products to operate other than in conformity with
their documentation or which interfere with an End
User's proper use of the Products or Software.
(c) Dyad shall provide telephone support to Phoenix for
the Products and Software to assist Phoenix in the
provision of maintenance and support of the Products
and Software to End Users as required under Section
10.3 below.
8.3. Exceptions
The following matters are not covered by maintenance or
support under this Agreement:
(a) Any problem resulting from the misuse, improper use,
alteration, or damage of any of the Software;
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<PAGE> 9
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
(b) Any problem caused by the Modifications of any
version of the Software not made or authorized by
Dyad; or
(c) Any problem resulting from the use of the Software
with other programming or with hardware
configurations not approved in writing by Dyad.
8.4. Training
Dyad shall provide technical assistance and training to
Phoenix as reasonably requested by Phoenix for its own
personnel at no charge; provided, however, that Phoenix shall
reimburse Dyad for all expenses incurred by Dyad (including
travel and lodging expenses) in providing such assistance and
training. Additionally, Dyad personnel shall assist and work
with Phoenix' personnel in the first XXX installations of
Products for End Users.
9. OBLIGATIONS OF PHOENIX
9.1. End User Agreements
Phoenix shall require each End User to enter into an End User
License with Phoenix prior to delivery of any Product to such
End User. Phoenix shall furnish each form of End User License
Phoenix proposes to use to Dyad for its approval. End User
License shall contain appropriate terms regarding ownership of
intellectual property, licensing terms, protection of
confidential information and other terms as may be reasonably
requested by Dyad. Phoenix shall use all reasonable efforts
to enforce the terms of End User Licenses and to ensure
compliance by End Users. Phoenix shall inform Dyad of all
known breaches of End User Licenses.
9.2. End Users
Phoenix shall notify Dyad of potential customers for the
Products. Dyad shall notify Phoenix of marketing conflicts
with Dyad's marketing efforts to such potential customers. In
case of conflict, the senior sales managers of Phoenix and
Dyad shall determine whose sales force shall market to the
customer. If no resolution can be reached, the decision of
Dyad as to such customer shall be final.
9.3. End User Support
Phoenix shall provide all maintenance and support to End
Users. Dyad shall not be responsible for support of any End
User, but shall only provide such assistance to Phoenix'
support staff as they may require from time to time to resolve
End User problems. Phoenix shall maintain a qualified support
staff capable of
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<PAGE> 10
providing such support and maintenance and shall
maintain a telephone support line during Phoenix regular
business hours for provision of telephone support to End
Users.
9.4. Customer Contacts
Phoenix will work exclusively with Dyad with respect to any
business opportunity presented to Phoenix by Dyad or obtained
by Phoenix as a result of its working relationship with Dyad.
9.5. Notices, Logos and Marks.
Phoenix shall not alter, erase or obscure any notices,
legends, or trademarks or alter any indications of ownership
such as copyright, serial number or any other designations or
security provisions featured on copies of the Software and
Documentation, and shall include all such features on all
copies of the Software and Documentation made by Phoenix.
9.6. Copies of Materials
Prior to use, Phoenix shall send to Dyad for review and
approval copies of all advertising, marketing and product
materials related to the Products or Software proposed to be
used by Phoenix. Such approval by Dyad shall not be
unreasonably withheld.
9.7. Compliance with Laws
(a) Phoenix shall, at its own expense, be responsible for
insuring compliance with all laws relating to the
export and license of the Products by Phoenix
hereunder, and shall procure all licenses and pay all
fees and other charges required thereby.
(b) Phoenix may not ship, export or re-export the
Products or any other information, process, product
or service obtained directly or indirectly from Dyad
to any country or entity which is the subject of any
prohibition imposed by the U.S. Export Administration
Act of 1979, U.S. Executive Orders, the U.S.
Department of Commerce, the North Atlantic Treaty
Organization, or any other U.S. or foreign law.
(c) Phoenix hereby agrees that it and its directors,
officers, employees, and agents will comply with the
Foreign Corrupt Practices Act of 1977, as amended.
10. TERM AND REVIEW
10.1. Term
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<PAGE> 11
This Agreement shall become effective on the date first set
forth above and shall continue for an initial term of 5 years.
This Agreement shall automatically renew for successive terms
of two years thereafter. After the initial 5 year term,
either party may terminate this Agreement upon 180 days' prior
written notice. Phoenix' exclusivity with respect to the
rights granted under Section 2.2 shall expire at the end of 3
years following the date of this Agreement, unless extended by
mutual agreement of the parties.
10.2. Termination
Either party may terminate this Agreement at any time on at
least thirty (30) days' prior written notice following a
material breach of the terms of this Agreement by the other
party which is not cured within such notice period. Dyad may
terminate this Agreement upon thirty (30) days' prior written
notice if Phoenix either (i) incurs a conflict of interest of
significant impact, or (ii) fails to devote reasonable effort
to the license of the Software to End Users, which failure is
not cured within the notice period. Phoenix may terminate
this Agreement upon 60 days' prior written notice to Dyad.
10.3. Effect of Termination
Notwithstanding the termination of this Agreement, Dyad shall
continue to be entitled to the fees earned under this
Agreement.
10.4. Survival
Notwithstanding termination of this Agreement for any reason
(including, without limitation, by notice pursuant to Section
10.2), Sections 3.2(d), 5.2, 12, (Indemnification by Phoenix),
13 (Title to Intellectual Property), 14 (Confidentiality) and
16 (General) shall continue to have effect as shall any other
provisions which by their nature or necessary implication
ought or were intended to continue to have effect, and End
User Licenses of customers already granted prior to the date
of such termination shall continue to be valid.
10.5. Actions Upon Termination
Upon termination Phoenix shall:
(a) promptly cease to use, license, market or promote
the Products;
(b) return all copies of the Products in the possession
of Phoenix to Dyad and shall cease using the same for
any purpose whatsoever;
(c) for a period of six (6) months following termination,
refer to Dyad all prospective customers and all
inquiries received by it relating to the Products;
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<PAGE> 12
(d) return and deliver or cause to be returned and
delivered to Dyad all memoranda, notes, reports,
documents or media relating to or containing
Confidential Information, including any copies or
extracts thereof.
(e) if termination is by Dyad due to breach by Phoenix,
and Phoenix fails to provide continuing support to
End Users pursuant to its obligations under End User
License or other maintenance agreements, Phoenix
shall assign all End User Licenses and other such
agreements to Dyad to the extent required for Dyad to
provide support of the Products to End Users.
Phoenix shall certify its compliance with this Section upon
the written request of Dyad. Notwithstanding the foregoing or
the termination of this Agreement, provided Phoenix is current
and continues to make all payments due Dyad hereunder, has not
breached any material term of this Agreement, and continues to
provide maintenance and support to End Users in accordance
with the terms of the agreements Phoenix may have with such
End Users, Phoenix may continue to use the Products solely for
the purposes of providing maintenance and support of the
Products to End Users under continuing End User Licenses,
maintenance agreements, or other written agreement.
11. WARRANTY
11.1. No Warranty
Dyad's maintenance obligations to Phoenix under Section 8.2
above are in lieu of any warranty with respect to the Products
or the Software. DYAD DISCLAIMS ANY AND ALL OTHER
REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN,
EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS INCLUDING
(WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
11.2. Limitation of Liability and Damages
DYAD'S LIABILITY FOR ANY AND ALL DAMAGES SHALL BE LIMITED TO
THE REMEDIES PROVIDED HEREIN. NEITHER PARTY SHALL HAVE ANY
LIABILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF PROFITS, INTERRUPTION OF
BUSINESS, OR ANY OTHER MONETARY LOSS, ARISING OUT OF THE USE
OR INABILITY TO USE THE PRODUCTS OR THE SOFTWARE, OR FOR
MISSTATEMENTS, MISTAKES OR OMISSIONS IN THE DOCUMENTATION,
EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE POSSIBILITY OF
SUCH DAMAGES. Neither party shall be responsible to any
customer or End User for the quality of service or performance
of
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products furnished by the other party. Each party is
solely responsible for establishing the prices of its own
products, services and associated deliverables.
12. INDEMNIFICATION BY PHOENIX.
12.1. Infringement of Intellectual Property Rights.
If a third party claims that the Products infringe any patent,
copyright, trade secret, or similar Intellectual Property
Rights, Dyad shall (as long as Phoenix is not in default under
this Agreement or any other agreement with Phoenix) indemnify
and defend Phoenix against such claim at Dyad's expense,
provided that Phoenix promptly notifies Dyad in writing of any
such claim, allows Dyad to control all negotiations and
litigation related thereto, and cooperates with Dyad in the
defense and disposition of such claim, including any related
settlement negotiations.
12.2. Limitations.
If such a claim is made or appears possible, Dyad may, at its
option, secure for Phoenix the right to continue to use the
Products, or modify or replace the infringing Product so it is
non-infringing. Dyad has no obligation hereunder for any
claim based on a modified version of a Product which has not
been approved by Dyad, or for any combination, operation or
use of the Products with a non-approved operating environment
or with any program, product, data or apparatus not approved
in writing by Dyad. Dyad shall have no obligation hereunder
for any claim based on theories of law that are not
substantially equivalent to laws, treaties and conventions
applicable to U.S. patents, copyrights, trade secrets, and
similar intellectual property rights. THIS SECTION 12 STATES
DYAD'S ENTIRE OBLIGATION TO PHOENIX WITH RESPECT TO MATTERS OF
TITLE OR ANY CLAIM OF INFRINGEMENT THEREOF.
13. TITLE TO INTELLECTUAL PROPERTY
All right title and interest in and to all copies of the Products,
Software and Documentation and all Intellectual Property Rights
pertaining thereto shall vest exclusively with Dyad, including the
Intellectual Property Rights in all Modifications and other related
works created by or for Dyad, Phoenix, or any End User, including
their personnel and permitted agents or contractors (except as
otherwise expressly stated herein). To the extent rights in
Modifications and all Intellectual Property Rights therein do not
automatically and fully vest exclusively in Dyad, Phoenix agrees to
and hereby does assign to Dyad all such rights, and shall execute all
such other agreements as Dyad may require to effect such assignment.
To the extent Modifications are produced by or under the supervision
of Dyad, Dyad hereby grants to Phoenix a non-transferrable, and
royalty free license to reproduce, license and distribute such
Modifications, but only to the extent they are marketed and licensed
or sold to End Users for use solely with duly licensed versions of the
Software pursuant to End User Licenses in effect with Phoenix.
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<PAGE> 14
Neither party, without the express prior written approval of the other
shall use the trademarks, service marks, or proprietary words or
symbols of the other. Notwithstanding the foregoing, nothing
contained in this Agreement shall affect either party's rights to use
any trademarks, service marks, or proprietary words or symbols of the
other to the extent otherwise permitted by applicable law or by
written agreement between the parties.
14. CONFIDENTIALITY
Except as otherwise provided herein or as allowed by the prior written
consent of the other party, for the term of this Agreement and for a
period of three (3) years following the termination of this Agreement
(and for ten (10) years with respect to source code for any Software),
each party hereto (a) shall receive all Confidential Information of
the other in strict confidence, (b) shall use the same degree of care
which it uses to protect its own Confidential information to maintain
the confidentiality and secrecy thereof, (c) shall disclose the
Confidential Information, and permit the Confidential Information to
be disclosed, only to its employees who need access to the
Confidential Information to carry out the terms and intent of this
Agreement, and (d) shall use the Confidential Information only in
furtherance of its rights and obligations set forth in this Agreement.
Both the parties shall keep confidential the terms and conditions of
this Agreement, but not its existence, and all other information which
is designated in writing as confidential by one party to the other.
Notwithstanding the foregoing, a party may make such disclosures as
may be required by order of a court of competent jurisdiction,
administrative agency or other government body, or by law rule or
regulation, provided, however, that to the extent possible, it gives
the other party prior written notice of such requirement and assists
the other party in its efforts to oppose such requirement.
15. EMPLOYEES
During the term of this Agreement and for a period of twelve (12)
months thereafter, neither party will directly or indirectly solicit
for employment or employ any employee of the other without the prior
written consent of the other.
16. GENERAL
16.1. No Authority to Bind the Other Party
The parties to this Agreement are independent contractors and,
except as provided in this Agreement or otherwise in a writing
signed by both parties, neither party is authorized to act on
behalf of the other or to bind the other. This Agreement does
not establish any relationship of agency, partnership, or
joint venture. Each party shall bear responsibility for its
own employees, including terms of employment, wages, hours,
tax withholding, required insurance, and daily direction and
control. Except as otherwise set forth in an Addendum, the
relationship created hereunder is non-exclusive as to each
party.
14
<PAGE> 15
16.2. Successors and Assigns
Except as otherwise provided in this Agreement, neither party
may assign this Agreement or any rights or obligations
hereunder without the prior written consent of the other
party. Any such attempted assignment without such prior
written consent shall be void and of no force and effect.
This Agreement shall inure to the benefit of and shall be
binding upon the permitted successors and assigns of the
parties hereto.
16.3. Governing Law; Jurisdiction
The construction and interpretation of, and the rights and
obligations of the parties pursuant to this Agreement shall be
governed by the laws of the State of Georgia.
16.4. Force Majeure
Neither party shall be liable for any failure of or delay in
the performance of this Agreement for the period that such
failure or delay is due to acts of God, public enemy, civil
war, strikes or labor disputes, or any other cause beyond the
parties' reasonable control. Each party agrees to notify the
other party promptly of the occurrence of any such cause and
to carry out this Agreement as promptly as practicable after
such cause has terminated.
16.5. Severability
In the event that any part of this Agreement is declared by
any court or other judicial or administrative body to be null,
void or unenforceable, said provision shall survive to the
extent if is not so declared, and all of the other provisions
of this Agreement shall remain in full force and effect.
16.6. Notices
All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have
been duly given: (i) on the date of service if served
personally on the party to whom notice is to be given; (ii) on
the day of transmission if sent via facsimile transmission to
the facsimile number given below, and telephonic confirmation
of receipt is obtained promptly after completion of
transmission; (iii) on the second day after delivery to
Federal Express or similar overnight courier or the Express
Mail service maintained by the United States Postal Service;
or (iv) on the fifth day after mailing, if mailed to the party
to whom notice is to be given, by first class air mail,
registered or certified, postage prepaid and properly
addressed, to the party as follows:
15
<PAGE> 16
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
If to Phoenix: Phoenix International Ltd., Inc.
500 International Parkway
Heathrow, Florida 32746
Attention: Ralph Reichard
If to Dyad : Dyad Corporation
3150 Holcomb Bridge Road
Suite 200
Norcross, Georgia 30071
Attention: XXX
Either party may change its address for the purpose of this
Section by giving the other parties written notice of its new
address in the manner set forth above.
16.7. Amendments; Waivers
This Agreement may be amended or modified, and any of the
terms, covenants, representations, warranties or conditions
hereof may be waived, only by a written instrument executed by
the parties hereto, or in the case of a waiver, by the party
waiving compliance. Any waiver by any party of a condition,
or of the breach of any provision, term, covenant,
representation or warranty contained in this Agreement, in any
one or more instances, shall not be deemed to be nor construed
as furthering or continuing waiver of any such condition, or
of the breach of any other provision, term, covenant,
representation or warranty of this Agreement.
16.8. Entire Agreement
This Agreement contains the entire understanding between the
parties hereto with respect to the transactions contemplated
hereby and supersedes and replaces all prior and
contemporaneous agreements and understandings, oral or
written, with regard to such transactions. All schedules and
addenda hereto and any documents and instruments delivered
pursuant to any provision hereof are expressly made a part of
this Agreement as fully as though completely set forth herein.
The rights of the parties are only as set forth herein, and
there are and shall be no implied rights or obligations
whatsoever.
16.9. Parties in Interest
Nothing in this Agreement is intended to confer any rights or
remedies under this Agreement on any persons other than
Phoenix and Dyad and their respective successors and permitted
assigns. Nothing in this Agreement is intended to
16
<PAGE> 1
EXHIBIT 10.46
CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
LICENSE AND MARKETING AGREEMENT
BETWEEN
INTEGRATED FINANCIAL SERVICES, INC.
AND
PHOENIX INTERNATIONAL LTD., INC.
This is a License and Marketing Agreement (the "License Agreement")
dated as of November 26, 1996, between Phoenix International Ltd., Inc.
("Phoenix") and Integrated Financial Services, Inc.("IFS").
IFS is the owner of certain computer programs and related
documentation, including the intellectual property rights pertaining thereto,
for the following six products: CreditPak, ConsumerPak, MortgagePak, BranchPak,
FeePak, and A&LPak (collectively, the "Pak Products"). Phoenix desires to
obtain from IFS a right and license to the Pak Products in order to re-market
the Pak Products to certain of its customers. IFS is willing to grant such
rights and licenses under the terms and conditions of this License Agreement.
Certain capitalized terms used in this License Agreement are defined in Section
9.7.
Phoenix and IFS, intending to be legally bound, agree as follows:
1. LICENSE
1.1. GRANT. In consideration for the payments described in Section
3.1, IFS hereby grants to Phoenix a worldwide, irrevocable, nonexclusive,
perpetual right and license to make, use, reproduce, and display, for purposes
of modification in connection with the interface of such Pak Products with
Phoenix's products; to make derivative works of the Pak Products for use as
part of or in connection with Phoenix's products and consistent with the
marketing rights granted herein; and, subject to compliance with Section 1.2,
sublicense, re-market, and distribute copies of each of the Pak Products to
XXXX of its customers or prospective customers. The rights and licenses
granted hereunder shall include the right and license to copy and display all
pictorial, graphic, or audiovisual works created as a result of the execution
of the Pak Products, even if such pictorial, graphic, or audiovisual works are
created by or with other programming or through other means. Title to all Pak
Programs, including an enhancements or modifications, shall at all times remain
solely with IFS.
<PAGE> 2
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
1.2. SUBLICENSE RESTRICTIONS. The Code portion of the Pak Products
may be sublicensed and distributed only in object code form. Phoenix shall
require each recipient of any product that contains the Pak Products, in whole
or in part, to be subject to the restrictions set forth in this Section 1.2.
Such restrictions shall be set forth in a written agreement signed by the
recipient prior to or upon receipt of the product.
1.2.1. The recipient may (a) make XXXXXXXXXXX portion of the
Pak Products in machine-readable form for nonproductive backup purposes only
and (b) use the Pak Products only for internal purposes and not for service
bureau work, multiple-user licenses, or time-sharing arrangements.
1.2.2. The recipient may not use, copy, modify, or transfer
the Pak Products, or any copy, adaptation, transcription, or merged portion
thereof, except as expressly permitted by IFS and Phoenix. The recipient's
rights are nonexclusive and nonassignable. If the recipient attempts to
transfer possession of any copy, adaptation, transcription, or merged portion
of the Pak Products to any other party (except with the prior written consent
of Phoenix and IFS), the recipient's rights in the Pak Products are
automatically terminated.
1.2.3. IFS shall have the sole and exclusive ownership of
all right, title, and interest in and to the Pak Products, including ownership
of all trade secrets and copyrights pertaining thereto, subject only to the
rights and privileges expressly granted by IFS hereunder.
1.2.4. The recipient is not entitled to receive source code,
and under no circumstances may the recipient reverse-compile or
reverse-assemble the object code.
1.2.5. The recipient must reproduce and include in all
copies of the Pak Products prepared by the recipient, and in all adaptations
thereof, any copyright notices and proprietary legends of IFS and, as
applicable, Phoenix, as they appear in the Pak Products and on the media
containing the Pak Products supplied to the recipient by IFS or Phoenix.
1.2.6. The recipient's obligations shall remain in effect
for as long as the recipient continues to possess or use any of the Pak
Products, and such obligations shall be for the benefit of IFS and shall be
enforceable by IFS.
1.3. SUBSIDIARIES OF PHOENIX. Phoenix may transfer, assign, or
sublicense the rights and licenses granted hereunder to one or more direct or
indirect subsidiaries of Phoenix, and each such subsidiary may correspondingly
transfer, assign, or sublicense such rights and licenses to any other
subsidiaries of Phoenix, provided that no such transfer shall operate to expand
the licenses granted hereunder and provided that in each case such subsidiaries
agree to be bound by the obligations of Phoenix and Phoenix remains bound by
the obligations it assumes under this License Agreement. For purposes hereof,
a subsidiary shall consist of any corporation,
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<PAGE> 3
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
partnership, joint venture, or other entity in which Phoenix has at least 50%
of the profits or voting rights.
1.4. PATENT RIGHTS. IFS further grants to Phoenix, its successors
and assigns, and any sublicensees and customers a worldwide, perpetual,
royalty-free, irrevocable, and nonexclusive immunity from suit under any
patents owned or licensable by IFS at any time during the term of this License
Agreement, as necessary for Phoenix to exercise any other rights and licenses
granted under this License Agreement.
2. MARKETING RIGHTS AND OBLIGATIONS OF PHOENIX
2.1. LEVEL OF EFFORT. Phoenix hereby undertakes to use its
reasonable commercial efforts to promote the sale, distribution, lease, and/or
sublicensing of the Pak Products to its customers and prospective customers.
2.2. MARKETING, INSTALLATION, AND TRAINING. IFS hereby grants to
Phoenix, for the term of this License Agreement, and Phoenix hereby accepts,
the exclusive right to market and distribute the Pak Products to XXXX of
Phoenix's current or prospective customers. Phoenix will provide IFS with a
list of such customers, updated from time to time and at least quarterly. IFS
agrees to keep such list confidential and not to pursue business development
efforts or enter into other marketing or licensing or sublicensing arrangements
with any entity on this list during the terms of this Agreement. Although
Phoenix will have the option to market the Pak Products and provide training to
its customers using Phoenix personnel, Phoenix and IFS agree to negotiate in
good faith to enter into a separate agreement on terms satisfactory to each
party under which IFS personnel will assist in such marketing and training.
2.3. RIGHT TO OBTAIN ADDITIONAL LICENSE RIGHTS. IFS agrees to
extend this Agreement from time to time or to enter into additional license
agreements with Phoenix providing Phoenix with the right to sublicense the Pak
Products beyond the XX customer limitation herein. Each such extension or new
agreement shall be on terms and conditions acceptable to both parties, except
that IFS also agrees that each such extension or new agreement will be on terms
and conditions no less favorable to Phoenix than IFS has offered or provided to
any other third party.
2.4. BACK-UP LICENSE. Simultaneously with the execution of this
License Agreement, IFS and Phoenix shall enter into a back-up license in form
and substance satisfactory to Phoenix.
3. PAYMENTS
3.1. INITIAL FEE. Phoenix shall pay IFS a one-time initial royalty
fee of XXXXX as follows: (i) upon execution of this Agreement, XXXXX in cash
(to be offset against the expenses payable by IFS under Section 9.6 below), and
(ii) XXXXX no later than XXXX, which may be paid in cash or by cancellation of
indebtedness.
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<PAGE> 4
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
3.2. RECURRING LICENSE FEES. Subject to compliance with Section
1.2, Phoenix may market and sublicense the Pak Products on terms, including
price, which Phoenix determines to be appropriate, provided that Phoenix agrees
to consult with IFS from time to time regarding such terms. Phoenix shall be
entitled to XXX of the first XXXXXX generated by the marketing and sublicensing
of the Pak Products pursuant to this Agreement. Thereafter, Phoenix shall be
entitled XXXXXXX, and IFS shall be entitled to XXX, of such XXXXXXX. Phoenix
agrees to provide an accounting to IFS quarterly, and at such other times as
may reasonably be requested by IFS, of the revenues it generates and the
sublicense agreements it enters into. Phoenix shall make all payments owing to
IFS pursuant to Section this 3.2 promptly after receipt by Phoenix of such
amounts.
4. MAINTENANCE AND SUPPORT OF PAK PRODUCTS
4.1. MAINTENANCE AND SUPPORT. Upon execution of this License
Agreement, IFS shall modify, at its own expense, the Pak Products as requested
by Phoenix in order to ensure that the Pak Products adequately interface with
the Phoenix system and also to include the enhancements which have been
requested by Phoenix's customers in connection with IFS's demonstrations of the
Pak Products prior to the date of this Agreement. IFS also agrees to provide
maintenance and support for the Pak Products for the term of this License
Agreement.
4.2. DELIVERY OF MAINTENANCE MODIFICATIONS AND BASIC ENHANCEMENTS.
IFS shall deliver to Phoenix, when and as prepared by IFS in the course of its
business, all basic enhancements and maintenance modifications to the Pak
Products arising from time to time, for inclusion in the Code and/or
documentation for the Pak Products. IFS agrees to consider and discuss with
Phoenix any proposal of Phoenix with respect to the preparation of possible
further basic enhancements and maintenance modifications.
5. PROPRIETARY PROTECTION
5.1. ACKNOWLEDGMENT OF CONFIDENTIALITY. Phoenix acknowledges that
the source code (the "Confidential Materials") consists of confidential
information of IFS. Phoenix shall treat the Confidential Materials in
confidence and shall not use, copy, or disclose them, nor permit any of its
personnel to use, copy, or disclose them, for any purpose that is not
specifically contemplated by this License Agreement.
5.2. PROPRIETARY LEGENDS. All Code and documentation shall be
marked with IFS's copyright notice. All products using the Pak Products
offered by Phoenix shall display IFS's copyright notice. However, Phoenix may
mark with its own copyright notice and register any Derivative Works of the
Code and documentation prepared by Phoenix. The parties agree to cooperate in
any such registration and to provide necessary information and prepare and
deliver duly executed documents reasonably required in such regard. In
addition, Phoenix agrees to notify IFS in advance of sublicensing or marketing
the Pak Products to any entity outside the
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<PAGE> 5
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
United States, so that IFS may take appropriate steps to obtain copyright
protection in such other countries.
6. REPRESENTATIONS AND WARRANTIES
6.1. RIGHT AND AUTHORITY. IFS represents and warrants that (a) it
is the owner of the Pak Products, including the Code and related documentation
and including all intellectual property rights therein under copyright, patent,
trademark, trade secret, and other applicable law; (b) it has the full and
sufficient right and authority to grant the rights and licenses granted herein;
(c) the Code and documentation have not been published under circumstances that
have caused loss of any U.S. copyright therein; and (d) the Code and
documentation, to the best of IFS's knowledge, do not infringe any copyright or
other intellectual property right of any third party.
6.2. WARRANTY. IFS warrants that the Pak Products will perform in
the manner specified in the system user manual, and will properly interface
with Phoenix's system, for a period of 90 days after each delivery of the Pak
Products pursuant to a sublicense in compliance with Section 1.2. IFS will
correct as soon as reasonably possible any Product which is non-conforming
during the term of the warranty period.
7. LIMITATION OF LIABILITY
7.1. EXCLUSION OF CONSEQUENTIAL DAMAGES, ETC. In no event shall
either party be liable to the other for any consequential, indirect, special,
or incidental damages, even if such party has been advised of the possibility
of such potential loss or damage. The foregoing limitations shall not be
construed to diminish the obligations of indemnity set forth in Section 8
hereof.
7.2. LIMITATION OF LIABILITY. In no event shall IFS be liable for
amounts in excess of the direct damages for breach of this License Agreement up
to the total amount actually paid by Phoenix hereunder. In no event shall
Phoenix be liable for amounts in excess of the direct damages for breach of
this License Agreement up to XXXXXXXXXXXXXXXXX exclusive of amounts payable in
accordance with the terms of this License Agreement.
8. INDEMNIFICATION
8.1. SCOPE OF INDEMNIFICATION. IFS hereby indemnifies and holds
harmless Phoenix, its successors, and its assigns, including any customers,
from any loss, liability, claim, or damage regarding the Code or any
documentation supplied hereunder, based on any actual or alleged infringement
of a patent, copyright, trade secret, or other intellectual proprietary right
of any third party. If such a claim arises, or if in IFS's judgment is likely
to arise, Phoenix agrees to allow IFS, at IFS's option, to procure the right
for Phoenix to continue to exercise its
-5-
<PAGE> 6
rights and licenses granted herein or to replace or modify them in a
functionally equivalent manner so they become non-infringing.
8.2. LIMITATIONS. IFS shall have no obligation under Section 8.1
hereof with respect to any claim of infringement of copyright, trade secret, or
other intellectual proprietary right based upon Phoenix's modification of the
Code or documentation or their combination, operation, or use with programs or
equipment not specified by IFS.
8.3. INDEMNIFICATION BY PHOENIX. Except for the matters addressed
in Section 8.1 hereof, Phoenix indemnifies and holds harmless IFS from any and
all loss, liability, claims, and damages based upon or relating to Phoenix's
products or any services offered by Phoenix involving the use of the Code and
related documentation, based on the performance or nonperformance of such
services, or based upon representations or commitments made by Phoenix or its
agents.
8.4. CONDITIONS. The foregoing indemnity obligations shall be
contingent upon the party seeking indemnity (a) giving prompt written notice to
the other party of any claim, demand, or action for which indemnity is sought;
(b) fully cooperating in the defense or settlement of any such claim, demand,
or action; and (c) obtaining the prior written agreement of the indemnifying
party to any settlement or proposal of settlement, which agreement shall not
unreasonably be withheld.
9. MISCELLANEOUS
9.1. TERMS CONFIDENTIAL. IFS and Phoenix shall hold in confidence
the terms of compensation set forth herein, and neither party hereto shall
disclose such terms to any other person or entity without the prior consent of
the other, or as may be required to comply with the Securities and Exchange
Commission reporting requirements.
9.2. FREEDOM OF ACTION. This License Agreement shall not be
construed to limit Phoenix's right to obtain services or software programs from
other sources, nor shall this License Agreement be construed to limit IFS's
right, except as provided in Section 2, to grant others any further
nonexclusive right or license in the Code and documentation. This License
Agreement alone establishes the rights, duties, and obligations of Phoenix and
IFS with respect to the subject matter hereof. Phoenix shall have no right or
interest whatsoever in any product of IFS other than the rights and licenses in
the Code or documentation granted herein, whether such product is conceived or
developed by IFS before, during, or after the course of IFS's performance of
this License Agreement. Nothing in this License Agreement shall be construed
to obligate Phoenix to a specified level of effort in its promotion and
marketing of the Pak Products and/or Phoenix's products incorporating the Pak
Products.
9.3. INDEPENDENT CONTRACTOR. Phoenix shall hold itself out only as
an independent contractor of IFS. or permitted to be given hereunder shall be
made in writing and shall be deemed effective when
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<PAGE> 7
XXX-CONFIDENTIAL TREATMENT REQUESTED
AND CONFIDENTIAL PORTIONS FILED
SEPARATELY WITH THE COMMISSION
9.4. NOTICES. All notices, authorizations, consents, or other
communications required delivered in person, one day after being sent by
overnight carrier, or three days after being sent by certified mail, as
follows:
IF TO PHOENIX: Phoenix International Ltd., Inc.
900 Winderly Place, Suite 140
Maitland, Florida 32751
IF TO IFS: Integrated Financial Services, Inc.
4025 Pleasantdale Road
Building 100, Suite 120
Atlanta, Georgia 30340
Any party hereto may change its address for purposes hereof by so
notifying the other party.
9.5. MERGER, ETC. This License Agreement contains the whole
understanding of the parties with respect to the subject matter hereof and
supersedes all prior oral or written representations and agreements between the
parties relating thereto. This License Agreement may not be varied except by a
writing duly executed by both parties.
9.6. ATTORNEYS' FEES. IFS shall pay the attorneys' fees and
expenses incurred by Phoenix in connection with the negotiation, preparation,
and execution of this License Agreement and the stock purchase agreement
entered into between Phoenix and IFS concurrently with this License Agreement,
and the related agreements and documents in connection with these transactions.
The parties agree that these fees and expenses will total XXXXX. In addition,
in the event suit is brought or arbitration commenced to enforce or interpret
any part of this License Agreement, the prevailing party shall be entitled to
recover as an element of its cost of suit or arbitration, and not as damages,
reasonable attorneys' fees to be fixed by the court or arbitrator. The
"prevailing party" shall be the party, if any, who is entitled to recover its
costs of suit or arbitration, whether or not the suit or arbitration proceeds
to final judgment. The party not entitled to recover its costs of suit or
arbitration shall not recover attorneys' fees.
9.7. CERTAIN DEFINITIONS. When used in this License Agreement, the
capitalized terms listed below shall have the following meanings:
"CODE" shall mean computer programming code. If not otherwise
specified, Code shall include both object code and source code. Code shall
include maintenance modifications and enhancements thereto if, when, and to the
extent they are delivered to Phoenix by IFS under this License Agreement or
under any other agreement or arrangement between the parties.
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<PAGE> 8
9.8. SUCCESSORS AND ASSIGNS. This License Agreement shall bind and
inure to the benefit of the parties hereto and their respective successors and
assigns. Neither party may assign its obligations hereunder to any other
party.
9.9. COUNTERPARTS. This License Agreement may be executed in one
or more counterparts, all of which shall be considered one and the same License
Agreement, and shall become effective when one or more such counterparts have
been signed by each of the parties and delivered to the other party.
10. TERMINATION
10.1. TERMINATION. IFS may, at its option, terminate this License
Agreement in the event of a failure of Phoenix to pay the fees required
hereunder. Phoenix may, at its option, terminate this License Agreement in the
event of a material breach by IFS. In each case, such termination may be
effected only through a written notice, specifically identifying the breach on
which termination is based. Following receipt of such notice, the party in
breach shall have 90 days to cure such breach, and this License Agreement shall
terminate in the event that such cure is not effected by the end of such
period.
10.2. SURVIVAL. In the event of the termination of this License
Agreement, in whole or in part, the provisions of Sections 5 through 10, as
well as such other provisions of this License Agreement as are addressed in
Section 10.3 hereof, shall survive and continue in effect.
10.3. RIGHTS NOT AFFECTED. The termination of this License
Agreement shall not affect any paid-up right or license theretofore attained by
Phoenix or any sublicensee of Phoenix, nor shall it impair the right or license
of any third party in Pak Products that have been or may yet be sublicensed in
accordance with this License Agreement. Notwithstanding the termination of
this License Agreement, Phoenix may continue to exercise the rights and
licenses granted hereunder as necessary to provide maintenance and support for
existing Pak Products sublicensed in accordance with Section 1.2.
IN WITNESS WHEREOF, the parties hereto have executed this License
Agreement upon the date first written above.
PHOENIX INTERNATIONAL LTD., INC. INTEGRATED FINANCIAL SERVICES, INC.
By: /s/ Bahram Yusefzadeh By: /s/ B. Shane Jones
------------------------------ ---------------------------------
Name: B. Yusefzadeh Name: B. Shane Jones
Title: Chairman & CEO Title: President & CEO
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