Exhibit 10.2
08/08/94
ADDENDUM TO MARKETING AGREEMENT
THIS EXHIBIT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. THE
CONFIDENTIAL INFORMATION HAS BEEN SO OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. IN PLACE OF SUCH OMITTED CONFIDENTIAL
INFORMATION, "****" HAS BEEN INSERTED.
Addendum executed this 9th day of August, 1994, between Information
Technology, Inc., a Nebraska corporation ("ITI"), and Xxxxxx Software, Inc., an
Ohio corporation ("HYLAND").
RECITALS
A. ITI and HYLAND are the parties to that certain Marketing Agreement,
dated January 18, 1994 (the "Agreement"), pursuant to which ITI has obtained
from HYLAND certain exclusive marketing rights to the OnBase(TM) Information
Management System software products; and
B. The parties desire to modify the Agreement in certain respects and
to provide for certain funding to occur in the form of prepayments to be made by
ITI to HYLAND.
NOW, THEREFORE, in consideration of the foregoing Recitals and of the
covenants and promises herein and in the Agreement contained, the parties
hereto agree as follows:
TERMS
1. Effect. Except as herein specifically amended, the Agreement remains
in full force and effect. Terms defined in the Agreement are used herein as
therein defined unless the context clearly otherwise requires.
2. Effective Date. Except as otherwise herein expressly stated, this
Addendum shall be deemed to be effective for all purposes at and as of July 1,
1994 (the "Effective Date").
3. License Fees. Section 3.1 of the Agreement is hereby amended by
reducing the license fee payable by ITI from **** of the Remarketer Price of
the licensed Products to **** thereof.
4. Prepayments. Commencing on the Effective Date and continuing on the
first day of each succeeding month, ITI shall make a prepayment to HYLAND of
the license fees payable under Section 3.1 of the Agreement, as herein amended,
in the amount of **** to a maximum of seven (7) such prepayments totaling ****.
Inasmuch as this Addendum is executed subsequent to the Effective Date, ITI
shall immediately upon execution make the prepayment required to have been made
on the Effective Date and any subsequent monthly prepayment which was to have
occurred prior to execution of this Addendum.
Confidential Treatment Requested
08/08/94
5. Recoupment of Prepayment. From and after the Effective Date all
license fees payable by ITI to HYLAND pursuant to the Agreement as herein
amended shall instead be retained by ITI and credited against the amounts
prepaid hereunder until the entire amount of such prepayments has been recouped
by ITI. Thereafter, ITI shall once again remit the license fee payments to
HYLAND as in the Agreement, as amended, provided. If subsequent to any
recoupment in full ITI again makes a prepayment pursuant to this Addendum,
recoupment in the manner described in this paragraph 5 shall once again apply.
6. Security. As security for its obligations hereunder and to insure
ITI's ability to recoup all prepayments made hereunder, HYLAND agrees that if,
by the first anniversary of the Effective Date, ITI has not recouped the
entirety of the prepayments made hereunder, then and in that event, ITI shall be
entitled to receive the source code version of the Products for its own use and
benefit in any manner it desires, including the right to license the Products to
any third party without restriction, provided, however, ITI shall have first
given HYLAND notice of non-recoupment, specifying the amount required to make it
whole. HYLAND shall, thereafter, have a period of thirty (30) days within which
to pay said amount to ITI. If such repayment is not made and recoupment does not
otherwise occur within said thirty (30) day period, then ITI shall be entitled
to the source code. To further acknowledge the security herein given, HYLAND
hereby grants ITI a security interest in the source code version of the
Products, agrees to voluntarily provide the source code to ITI if ITI becomes
entitled thereto pursuant to this Addendum and agrees, upon request by ITI, to
execute any UCC-1 Financing Statement necessary to perfect such security
interest and any mutually agreed upon amendment of the Escrow Agreement
currently applicable to source code for the Products, as contemplated by Section
7.5 of the Agreement.
IN WITNESS WHEREOF, the parties have executed this Addendum the date
and year first above written but effective for all purposes at and as of July 1,
1994.
INFORMATION TECHNOLOGY, INC. XXXXXX SOFTWARE, INC.
BY: /s/ Xxxxxx X. Xxxxxx BY: /s/ Xxxx X. Xxxxxx
----------------------------------- ----------------------------
Xxxxxx X. Xxxxxx, President Xxxx X. Xxxxxx, President
Address: 0000 Xxx Xxxxxx Xxxx Address: 0000 Xxxx 000 Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxxx Xxxx XX 00000
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