TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT, made and entered into as of the 30th day of
June, 1997, by and between PAYSYS INTERNATIONAL, INC., a Florida corporation,
("PAYSYS"), and FERNTREE COMPUTER CORPORATION PTY., LIMITED, an Australian
company number 006 995 893 ("FERNTREE").
W I T N E S S E T H:
WHEREAS, predecessors in interest of the parties hereto have entered
into an Agency Agreement dated March 2, 1989, (the "Agency Agreement"), which
by its terms has expired, but which the parties hereto have continued to
operate under in marketing certain software products; and
WHEREAS, the parties now desire to terminate the Agency Agreement and to
make provision for the continuation of maintenance and support services to
licensees who have obtained licenses pursuant to the Agency Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and intending to be legally bound,
the parties hereto hereby agree as follows:
1. Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Agency Agreement.
2. The Agency Agreement is hereby terminated. As a result of such
termination, (i) FERNTREE shall have no further right whatsoever to grant any
User Licenses for the Products or to grant any licenses or market or
otherwise distribute and PAYSYS product whatsoever or to use any PAYSYS
trademark or service xxxx, (ii) each Distributor License Agreement, if any,
shall terminate and be of no further force and effect whatsoever and no
Distributor shall have any right to market any of the Products or to grant
any User Licenses, (iii) User Licenses presently in effect shall remain in
effect until terminated in accordance with their respective terms, (iv) any
amounts due to PAYSYS from FERNTREE as a result of the Agency Agreement
accruing prior to the date hereof shall be paid by FERNTREE promptly, and (v)
FERNTREE shall have no further obligation with respect to Maintenance, the
same being assumed by PAYSYS pursuant to Paragraph 3 below, Section 4 (except
as modified pursuant to the preceding sentence). 12, 15, 16 and 17.2 of the
Agency Agreement shall survive the termination of the Agency Agreement along
with such other provisions thereof which by their nature are intended to
survive such termination.
3. All existing maintenance and support agreements pursuant to which
FERNTREE is currently providing maintenance and support for PAYSYS products
are listed
on Schedule A attached hereto (the "Maintenance Agreements"). FERNTREE
hereby transfers and assigns the Maintenance Agreements to PAYSYS free and
clear of any liens, security interests, and other encumbrances and free of
any claims or rights of any third party, except rights of the other party to
such agreement set forth therein, to PAYSYS, including, but not limited to,
the right to receive all future payments under the Maintenance Agreements.
FERNTREE has the right to retain all payments made prior to the date hereof
pursuant to the Maintenance Agreements (less amounts payable to PAYSYS
pursuant to the Agency Agreement) notwithstanding that such payments may
relate to periods following the date hereof. Schedule A indicates the
prepayments received pursuant to the Maintenance Agreements and the periods
covered thereby. PAYSYS hereby assumes the obligations of FERNTREE to
provide maintenance and support for PAYSYS products pursuant to the
Maintenance Agreements. PAYSYS does not assume, and FERNTREE retains (i) any
liabilities and other obligations of any nature arising under the Maintenance
Agreements with respect to all periods prior to the date hereof (to the
extent that such liabilities and obligations do not arise out of PAYSYS'
responsibilities in relation to such Maintenance Agreements) and (ii) any
obligation to provide maintenance and support for any non-PaySys software.
4. PAYSYS shall pay to FERNTREE 30% of all future fees received by
PAYSYS for licenses of VisionPlus Products in the Territory until FERNTREE
has received a maximum of U.S. $1 million. These payments shall be based
only on licenses of existing VisionPlus modules and not on any new modules or
any successor products.
5. FERNTREE shall indemnify PAYSYS from, and hold PAYSYS harmless with
respect to, any and all liabilities, claims, damages, obligations, and
expenses of any nature whatsoever arising with respect to the actions of
FERNTREE under the Agency Agreement or arising under the Maintenance
Agreements with respect to actions or omissions of FERNTREE prior to the date
hereof or (i) obligations not assumed hereunder. PAYSYS shall indemnify
FERNTREE from, and hold FERNTREE harmless with respect to, any and all
liabilities, claims, damages, obligations, and expenses of any nature
whatsoever arising under the Maintenance Agreements with respect to
obligations assumed hereunder by PAYSYS and relating to the period beginning
on the date hereof and (ii) obligations of PAYSYS under the Agency Agreement
and any obligations of PaySys for maintenance and support in relation to the
Maintenance Agreement prior to the assignment thereof.
6. Each of PAYSYS and FERNTREE shall bear its own expenses, including
but not limited to, legal fees, incurred in connection with the negotiation,
execution and consummation of this Agreement.
7. PAYSYS is not assuming any obligations or liabilities with respect
to any FERNTREE employees and has not agreed to hire any FERNTREE employee.
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8. (a) This Agreement may be executed in one or more copies, all of
which shall constitute one and the same Agreement. Execution of this
Agreement may occur via telecopy with original signature pages to follow.
(b) This Agreement shall be governed by and construed in accordance
with the internal Laws of the State of Florida.
(c) This Agreement is solely between the parties hereto and no
person not a party to this Agreement shall have any rights hereunder or as a
third party beneficiary or otherwise.
(d) If it should ever become necessary to interpret or construe
this Agreement, it shall be done without giving any effect or weight to
whichever party may have prepared or drafted this Agreement, the parties
having agreed that each party have participated in the preparation,
negotiation, and drafting of this Agreement.
(c) This Agreement constitutes the complete agreement between the
parties with respect to the termination of the Agency Agreement and the
assignment and assumption of certain rights and responsibilities with respect to
the Maintenance Agreements. This Agreement may not be amended, modified, or
changed except by a writing signed by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day first written and the said date shall be deemed the effective date of
this Agreement.
PAYSYS INTERNATIONAL, INC.
By:
___________________________________
FERNTREE COMPUTER CORPORATION PTY, LTD.
By: /s/.
___________________________________
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SCHEDULE A
Maintenance Agreements
Customer License Maintenance Term Payments Through
Adelaide Bank CDM $19,500 March 14, 1998 March 14, 1998
ANZ Bank CDM $27,500 June 30, 1997 June 30, 1997
ANZ Bank CP $109,800 Sept 30, 1997 Sept 30, 1997
ANZ Bank CTA June 30, 1997 Unassigned and Unpaid
ANZ Fiji CP400 $30,821 Nov 17, 1997 Nov 17, 1997
AVCO CDM $24,000 Sept 30, 1997 Sept 30, 1997
Bank West MTS $8,100 Xxxxx 00, 0000 Xxxxx 26, 0000
Xxxx Xxxx XXX Rel 5 $47,671 March 26, 1998 March 26, 1998
CSB CMP Rel 5 $67,940 Oct 15, 1997 Oct 15, 1997
Xxxxx Xxxxx Vision 21 $138,712 Dec 31, 1997 Dec 31, 1997
NAB CMP Rel $77,000 April 30, 1997 April 30, 1997
5/CSM
Telstra CDM $45,000 Dec 31, 1997 Dec 31, 1997
Westpac NZ CMP $96,025 June 2, 1997 June 2, 1998
Westpac NZ CSM $18,750 August 9, 1997 August 1, 1997
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