AGREEMENT TO EXTEND AND AMEND
DATA CENTER MANAGEMENT AGREEMENT AND
TO AMEND REGISTRATION RIGHTS AGREEMENT
This Agreement to Extend and Amend Data Center
Management Agreement (this "Amendment") is made and entered
into as of August 31, 1994, by and between Trans Union
Corporation ("Trans Union"), with a place of business at 000
Xxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, and Acxiom
Corporation ("Acxiom"), with a place of business at 000
Xxxxxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxx 00000.
In consideration of the mutual promises, undertakings,
relinquishments of rights, and other considerations set
forth below, the parties hereby amend that certain Data
Center Management Agreement between the parties dated July
27, 1992 (the "Agreement") and otherwise undertake and agree
as follows:
1. Pursuant to clause (ii) of Section 5.3 of the
Agreement, Trans Union hereby elects (and shall be deemed,
for purposes of the Warrant referred to in paragraph
5.1.3.1(f) of the Agreement, to have delivered to Acxiom a
notice of its election) to continue fully and extend its
relationship with Acxiom under the Agreement for the
"Extended Term" (as defined in said clause 5.3(ii)).
2. Acxiom hereby waives and releases its rights
under Section 5.1.3.6 of the Agreement, and the parties
mutually agree that the Agreement is hereby amended by
deleting therefrom the entirety of Section 5.1.3.6 of the
Agreement.
3. Acxiom hereby waives and releases its rights
under paragraph (b) of Section 5.1.3.7 of the Agreement,
Trans Union hereby waives and releases its rights under
paragraph (a) of Section 5.1.3.7 of the Agreement, and the
parties mutually agree that the Agreement is hereby amended
by deleting therefrom the entirety of Sections 5.1.3.7 and
5.1.3.7.1 of the Agreement (which Sections shall not, for
purposes of this Amendment, be deemed to include, and this
Amendment shall not delete, Sections 5.1.3.7.2, 5.1.3.7.3,
or 5.1.3.7.4).
4. The parties mutually agree that the Registration
Rights Agreement between the parties dated July 27, 1992, is
hereby amended as follows:
by adding to Section 3.0 thereof, at the end thereof,
an additional sentence which shall be and read as follows:
"The rights of Trans Union under this Section 3.0 may
be exercised by it twice -- i.e., they may be exercised
on two separate occasions, so as to require two (but
not more than two) separate registrations."
5. Each of the parties promises and agrees to
execute, by not later than August 31, 1994, a letter of
intent in the form attached hereto as Exhibit A regarding
arrangements for the performance by Acxiom of certain data
processing requirements and other functions of the Marketing
Services Division of Trans Union.
6. Each of the parties represents and warrants that
its execution and delivery of this Amendment have been duly
authorized by all necessary corporate action.
Acxiom Corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Trans Union Corporation
By: /s/ Xxxxx Xxxxxx
-------------------------
EXHIBIT A
August 31, 1994
Xx. Xxxxx X. Xxxxxx
Executive Vice President
Acxiom Corporation
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000-0000
Re: Marketing Services Division Agreement
Dear Xxx:
On July 27, 1992, Trans Union and Acxiom entered into a
Data Center Management Agreement ("DCMA"). Recently, Trans
Union and Acxiom have discussed a proposal ("Proposal") by
Acxiom to improve the efficiency of certain data processing
services used in the to-be-defined operation of the
Marketing Services Division (excluding, without limitation,
the List and Insurance divisions) of Trans Union ("MSD").
The parties mutually acknowledge and agree that this letter
is not intended to create any binding contractual or legal
obligations upon either party with respect to the subject
matter of the Proposal. The purpose of this letter is to
summarize a potential transaction. The parties agree to
negotiate in good faith a definitive and binding agreement
("Agreement"), but either party may terminate such
negotiations at any time for any or no reason.
1. Development. On a mutually agreed upon schedule of
milestones and benchmarks (with completion on or before
July, 1996), Acxiom will develop certain computer software
and related technical materials and processes and undergo
certain conversions for MSD (the "MSD Software"), so as to
enable Acxiom to provide, pursuant to the Agreement, all
data processing services and software systems necessary for
MSD's operations from Acxiom's data center in Conway,
Arkansas from and after an agreed cutover date. Acxiom will
contribute leadership and product knowledge by dedicating a
business unit executive and all required programming,
customer service and support personnel to the development
and operations, and Acxiom will provide appropriate training
and consulting services to Trans Union to enable Trans Union
to utilize the MSD Software and related new systems. The
foregoing will be at Acxiom's sole cost, expense and
responsibility. Trans Union will retain all rights, title,
and ownership in and to the MSD Software and its components
(whether tangible or intangible) developed in connection
with this Proposal, including without limitation all
copyright, patent, trade secrets and other proprietary
rights pertaining thereto.
2. Efforts by Trans Union. Trans Union will at
cost: (i) provide facilities and resources, and (ii) furnish
technical personnel (including programming, customer
service, support personnel, and personnel with market
knowledge) to assist in Acxiom's efforts.
3. Standards. Service levels and acceptance
standards will be established. An executive committee
comprised of officers of each party will be established to
have general oversight over the development and operations
effort. The establishment and operation of such executive
committee will not diminish Acxiom's duty to develop the MSD
Software as described in paragraph 1 herein.
4. Pricing and Payments:
4.1 Payments by Acxiom. In consideration for
the services to be provided by Trans Union in paragraph 2
herein, Acxiom will pay Trans Union on terms and conditions
to be agreed upon. Acxiom will reimburse Trans Union for
all expenses incurred by Trans Union in connection with such
services.
4.2 Payments by Trans Union. In consideration
for the development and other services of Acxiom, for each
twelve month period of September 1 through August 31
("Applicable Year") beginning with the first full Applicable
Year throughout which the MSD Software is fully implemented,
and until the year ending on August 31, 2002 (unless the
DCMA is earlier terminated), Trans Union will pay Acxiom an
amount calculated on the basis of terms, conditions and
formulas which are yet undetermined but which are
contemplated by the parties to include a portion of a to-be-
defined improvement in MSD profit margin.
4.3 Cost Savings. Notwithstanding anything to
the contrary stated herein or in the DCMA, the Data Center
Management fee as defined by the DCMA would be reduced by
100% of the net reduction in Acxiom's Data Center cost
(including without limitation reduction in processing costs
and personnel costs resulting from the development and
operations) ("Cost Reduction"). The Cost Reduction includes
without limitation reduction in cost due to the use of the
MSD Software and reduction in cost due to the transfer of
systems and services to Conway, Arkansas. For any
Applicable Year in which the Cost Reduction is less than a
to-be-determined "Guarantee" (contemplated by the parties to
be at least ten percent (10%) of a to-be-determined base MSD
cost level), Acxiom will pay Trans Union the difference
between the Guarantee and the Cost Reduction. Trans Union
will have the right immediately to apply and set off any and
all such amounts against, and in payment of, any and all
amounts then or thereafter payable by Trans Union to Acxiom
under any provision of the DCMA.
5. The Data Center Management Agreement. The
Agreement would not amend or modify any terms or provisions
of the DCMA, nor would the provision of services under the
Agreement have any effect on Acxiom's obligations arising
under the DCMA, except as specifically provided herein. In
particular, and in accordance with Section 5.8 of the DCMA,
Acxiom would remain obligated to pay Trans Union the stated
portion (approximately 50%) of the Savings not subject to
paragraph 4.3 herein.
If the above sets forth your understanding of the
status of our discussions with respect to the Proposal,
please execute one copy of this letter in the space provided
below and return a fully executed copy to me.
Very Truly Yours,
TRANS UNION CORPORATION
/s/ Xxxxx Xxxxxx
Accepted and agreed to this
31st day of August, 1994
ACXIOM CORPORATION
/s/ Xxxxx X. Xxxxxx
Executive Vice President
RS/ls
