EXHIBIT 10.10
AMENDMENT NUMBER 1 TO
LICENSE AGREEMENT
This amendment Number 1 is entered into effective as of September 14, 1998 by
and between ShowCase Corporation and Hyperion Solutions Corporation (formerly
Hyperion Software Corporation) for the purpose of modifying the License
Agreement between the parties dated effective April 1, 1998 (the "Agreement").
1. The name of Hyperion Software Corporation has been changed to Hyperion
Solutions Corporation.
2. Unless otherwise defined in this Amendment 1, each capitalized term
used herein has the same meaning as that given to it in the Agreement.
3. Section 1.1 of the Agreement is replaced in its entirety with the
following:
"1.1 "Authorized Partner" is defined as (a) a software reseller with a
contractual relationship with Hyperion or ShowCase which adds value by
providing its own or third party applications in addition to the
Essbase Software or other Hyperion software products, or the ShowCase
AS/400 Port, respectively, or (b) a systems integrator (service
companies such EDS and Xxxxxxxx Consulting), OEM, or other entity
approved in writing by the other party. Under no circumstance may IBM
be a Hyperion Authorized Partner for the ShowCase AS/400 Port without
the written approval of ShowCase, while ShowCase retains exclusive
distribution rights to the ShowCase AS/400 Port in accordance with
section 2.1."
4. Section 1.2 of the Agreement is replaced in its entirety with the
following:
"l.2 "Essbase Software" is defined as the Essbase Server, the Essbase
Application Manager, the Spreadsheet Client, the Essbase Application
Tools, Wired for OLAP, and Wired for the Web, existing as of the
effective date of this Agreement, and any future releases of such
products developed or distributed by Hyperion. Hyperion agrees to
negotiate in good faith to expand the definition of Essbase Software to
include other software products not specified above that are either
developed or distributed by Hyperion after the effective date of this
agreement."
5. New Sections 1.6 through 1.8 are added to the Agreement as follow:
"1.6 "IBM AS/400 DB2/OLAP" is defined as a customized version of the
ShowCase AS/400 Port, which is intended for use by end users using
IBM's DB2 relational storage and/or IBM's direct successor to DB2 and
excludes Wired for OLAP and Wired for the
Web. Unless the context indicates otherwise, all references in this
Agreement to the ShowCase AS/400 Port include IBM AS/400 DB2/OLAP."
"1.7 "Moral Rights" is defined as personal rights associated with
authorship of a work under applicable law. These include the right to
approve modifications and to require authorship identification."
"1.8 "Harmful Code" is defined as any code, programming instruction or
set of instructions that is intentionally constructed with the ability
to damage, interfere with or otherwise adversely affect computer
programs, data files, or hardware without the consent or intent of the
computer user. It is expressly understood and agreed that license
management devices such as license keys, limitation of the number of
concurrent users to the maximum number authorized, and time-out devices
in evaluation versions of any software shall not be considered to be
Harmful Code."
6. Section 2.2 of the Agreement is replaced in its entirety with the
following:
"2.2 Grant of License to Distribute Essbase Software on Non-AS/400
Platforms. Hyperion hereby grants to ShowCase a non-exclusive,
worldwide license (subject to Sections 2.8 and 4.2) to distribute and
sublicense the Essbase Software (i.e., all Essbase Software not ported
to the AS/400 platform) to end users directly and through its
Authorized Partners, subject to the terms of this Agreement. ShowCase
may not use an Authorized Partner for the distribution of Essbase
Software not ported to the AS/400 platform, if such Authorized Partner
was an existing partner of Hyperion as of April 1, 1998, without the
prior written consent of Hyperion, which consent will not be
unreasonably withheld. Any distribution by systems integrators and
other independent software vendors must be approved in writing in
advance by Hyperion, which approval will not be unreasonably withheld.
The end user customer shall execute a software license agreement
containing terms no less restrictive than, and at least as protective
of Hyperion's intellectual property rights as, those contained in
Hyperion's Software License Agreement attached to this Agreement.
ShowCase's right to distribute and sublicense Essbase Software on
non-AS/400 Platforms, both directly and through its Authorized
Partners, shall be subject to the following conditions:
"a. The end users must also license the ShowCase Warehouse
Manager and Warehouse Builder products or replacement versions
of such products and data must reside on or originate from an
IBM AS/400; or
"b. The end users must license a ShowCase business application
built upon the Essbase Software and that adds significant
value to the Essbase Software."
7. Section 3.1 of the Agreement is replaced in its entirety with the
following:
"3.1 Grant of License to Distribute ShowCase AS/400 Port.
Notwithstanding the grant to ShowCase of the exclusive license set
forth in Section 2.1, Hyperion hereby reserves to
itself the right to distribute and sublicense the ShowCase AS/400 Port
directly and through Hyperion's Authorized Partners. Hyperion may not
use an Authorized Partner for the distribution of the ShowCase AS/400
Port, if such Authorized Partner was an existing partner of ShowCase as
of April 1, 1998, without the prior written consent of ShowCase, which
consent will not be unreasonably withheld. Any distribution by systems
integrators and other independent software vendors must be approved in
writing in advance by ShowCase, which approval will not be unreasonably
withheld. The end user customer shall execute a software license
agreement containing terms no less restrictive than, and at least as
protective of ShowCase's intellectual property rights as, those
contained in ShowCase's Software License Agreement attached to this
Agreement. ShowCase acknowledges that Hyperion's Software License
Agreement attached to this Agreement satisfies the foregoing
requirement. ShowCase shall be responsible for the delivery of the
ShowCase AS/400 Port to such end users. For sales of full use licenses
of the ShowCase AS/400 Port by Authorized Partners, any additional
sales to that particular end user (whether to a different department,
division or location of the end user) shall be made by the Authorized
Partner or ShowCase, and not Hyperion or its Authorized Partners.
Hyperion's right to distribute and sublicense the ShowCase AS/400 Port
in a given transaction through its own direct field sales force shall
be subject to the following conditions (which conditions shall not
apply to Authorized Partners):
"a. Limited to end user sales in countries where Hyperion has
direct sales; and
"b. Hyperion's total revenue from the transaction must exceed
$ (*) and at least (*) percent of the established gross
revenue before royalties and discounts of the Essbase Software
must be on platforms other than the AS/400 or its direct
successor; or
"c. The end user must be an Hyperion substantial customer. An
Hyperion substantial customer is an existing Hyperion customer
who has purchased software licenses and services from Hyperion
totaling at least $ (*) during the 12 months immediately
preceding the transaction in question; or
"d. ShowCase declines to participate in the transaction after
being notified of it in writing."
8. The second sentence of Section 5.1 of the Agreement is deleted in its
entirety and replaced by the following:
"ShowCase will pay Hyperion (*) percent of Hyperion's then-current
local country list price for the ShowCase AS/400 Port (excluding the
ported Wired for OLAP and Wired for the Web products) and (*) percent
of Hyperion's then-current local country list price for the non-ported
Essbase Software (including the Wired for OLAP and Wired for the
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
Web products), whether the sale is directly by ShowCase or by a
ShowCase Authorized Partner. In addition, for any sales recorded after
January 31, 1999, ShowCase will pay Hyperion (*) percent of Hyperion's
then-current local country list price for the ported Wired for OLAP and
Wired for the Web products (with both the client and server portions
being distributed together to a particular customer), whether the sale
is directly by ShowCase or by a ShowCase Authorized Partner. ShowCase's
rights and obligations with respect to Wired for OLAP and Wired for the
Web products prior to January 31, 1999 are governed by that certain
agreement between ShowCase and AppSource Corporation (a wholly-owned
subsidiary of Hyperion)."
9. The third sentence of Section 5.2 of the License Agreement is deleted
in its entirety and replaced by the following:
"For restricted use license sales of the ShowCase AS/400 Port
(excluding the Wired for OLAP and Wired for the Web products) made by
ShowCase's Authorized Partners, ShowCase shall pay Hyperion a royalty
of (*) percent of Hyperion's then-current local country list price."
10. Section 5.3 of the License Agreement is hereby deleted in its entirety
and replaced by the following:
"For sales made by IBM or its channels of the ShowCase AS/400 Port
(excluding the ported Wired for OLAP and Wired for the Web product),
ShowCase shall pay Hyperion a royalty of (*) percent of Hyperion's
then-current local list price. In addition, ShowCase will pay
Hyperion (*) percent of the net royalty from IBM or its channels
(with a floor of (*)% of Hyperion's local country list price in
effect as of the effective date of this Agreement) for the Wired for
OLAP and Wired for the Web products (with both the client and server
portions being distributed together to a particular customer)."
11. A new Section 11.0 is added to the Agreement as follows:
"1.0 Hyperion Warranties
"(a) Hyperion warrants that it has full legal rights to grant
the rights granted to ShowCase herein. Hyperion's sole
obligation in the event of a breach of this warranty is stated
in Sections 11.3 and 11.4 of the Agreement.
"(b) Hyperion warrants that it is not under, and will not
assume, any obligation that conflicts with Hyperion's
obligations or the rights and licenses granted in this
Agreement.
(*) Denotes confidential information that has been omitted and filed
separately, accompanied by a confidential treatment request, with the Securities
and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
"(c) Hyperion warrants that there are no proceedings or claims
pending or threatened against Hyperion that relate to the
Essbase Software or the Technical Information.
"(d) Hyperion warrants that neither the Essbase Software nor
the Technical Information infringes any patent, copyright,
trademark or other intellectual property rights of a third
party. Further, Hyperion warrants that the Essbase Software
and Technical Information have not been the basis of a claim
of infringement threatened or asserted against Hyperion or, to
the best of Hyperion's knowledge, anyone else.
"(e) Hyperion warrants that it has the right to modify the
Essbase Software and the Technical Information, and that no
attribution other than to Hyperion is required in connection
therewith.
"(f) Hyperion warrants that the source code that Hyperion
delivers as part of the Technical Information under this
Agreement corresponds to the current release or version of the
Essbase Software on the date of such delivery, Hyperion's sole
obligation in the event of a breach of this warranty is to
deliver the appropriate version of the source code.
"(g) Hyperion warrants that the Essbase Software and
applicable Technical Information delivered to Licensee
hereunder will record, store, process and present calendar
dates falling on or after January 1, 2000, in the same manner,
and with substantially similar functionality, as such Software
records, stores, process and presents calendar dates on or
before December 31, 1999. Hyperion's sole obligation in the
event of a breach of this warranty is to repair or replace the
non conforming Essbase Software or Technical Information.
"(h) Hyperion warrants that any person or entity having Moral
Rights with respect to any materials assigned, delivered or
licensed by Hyperion to ShowCase hereunder shall not assert
any Moral Rights with respect to those materials. Hyperion
acknowledges that ShowCase's exercise of rights and licenses
hereunder shall not violate any Moral Rights of Hyperion, and
Hyperion agrees not to assert any Moral Rights Hyperion has or
may have in the Essbase Software against ShowCase in its
exercise of rights and licenses hereunder.
"(i) Hyperion warrants that, to the best of its knowledge, the
Essbase Software and Technical Information, as delivered by
Hyperion to ShowCase hereunder, is not contaminated by Harmful
Code, and that Hyperion has implemented a process designed to
help prevent any such contamination by Harmful Code. Hyperion
will promptly provide ShowCase notice if Hyperion suspects any
contamination."
12. The first sentence in Section 11.1 of the Agreement is hereby deleted
in its entirety and replaced by the following:
"EXCEPT FOR THE EXPRESS WARRANTIES STATED IN SECTION 11.0, THE
TECHNICAL INFORMATION AND SERVICES PROVIDED TO SHOWCASE HEREUNDER ARE
PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT
LIMITATION, ANY WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR NONINFRINGEMENT."
13. Hyperion acknowledges and agrees that ShowCase and International
Business Machines Corporation ("IBM") will be entering into certain
development and license agreements (collectively, the "IBM Agreements")
to develop and license for distribution by IBM and its agents certain
ShowCase software products that include the ShowCase AS/400 Port.
Hyperion hereby consents to ShowCase's disclosure of information
related to the License Agreement including the Hyperion test suite,
solely to the extent required for ShowCase to perform its obligations
under the IBM Agreements, provided that any such disclosures are
subject to an appropriate nondisclosure agreement between IBM and
ShowCase, which contains terms that are as protective of Hyperion's
confidential information as those set forth in Section 9 of the
Agreement. Hyperion further agrees that, subject to the same
confidentiality provisions stated above, including Section 9 of the
Agreement, Hyperion will make available to ShowCase for delivery to
IBM, if required by IBM, a copy of the Certificate of Originality that
Hyperion submitted to IBM in connection with IBM Developer Agreement
Number STL 96204 (the "Santa Xxxxxx Agreement") in effect between IBM
and Hyperion.
14. Hyperion consents to ShowCase establishing an escrow account with an
independent third party escrow agent in order to place into escrow the
source code for the ShowCase products licensed to IBM under the IBM
Agreements which will include the source code for the ShowCase AS/400
Port, provided however, that the terms governing release of the source
code and subsequent use by IBM thereof shall be materially the same as
those set forth in IBM Source Code Xxxxxxx Xxxxxxxxx XXX ("XXX 00000")
dated September 27, 1996 by and between Hyperion and IBM. Hyperion
understands that IBM will have the right to obtain this source code for
certain ShowCase software products (including, for example, the IBM
AS/400 DB2/OLAP product) then- currently escrowed with such escrow
agent if one of certain stated release conditions occurs; provided,
however, that prior to any such release of the source code for the
ShowCase AS/400 Port, IBM shall inform Hyperion in writing of such
impending release and Hyperion shall have 30 days after its receipt of
a copy of the IBM Agreements and of notice from IBM to elect in writing
one of the following options:
(a) Hyperion may modify the Santa Xxxxxx Agreement in order to
add the ShowCase AS/400 Port as a licensed work under the
Santa Xxxxxx Agreement, provided that IBM also assumes the
obligation to support any IBM-owned code or products included
in the ShowCase AS/400 Port products, and provided further
that with respect to the ShowCase AS/400 Port, any reference
in the Santa Xxxxxx Agreement to list price or a similar term
with respect to the calculation of royalties, shall refer to
ShowCase's applicable list price; or
(b) Hyperion may have assigned to it, and assume on behalf of
ShowCase, all royalties, and all obligations of ShowCase under
the IBM Agreements related only to the ShowCase AS/400 Port
product.
Upon Hyperion's election of either of the above options, ShowCase, IBM
and Hyperion will all cooperate in good faith to transfer all source
code and other information reasonably needed in order for Hyperion to
assume such obligations. ShowCase shall have no obligation under the
License Agreement to pay any royalties to Hyperion for any copies of
the ShowCase AS/400 Port product subsequently distributed by IBM and
ShowCase shall not be entitled to any royalties for any copies of the
ShowCase AS/400 Port product subsequently distributed by IBM.
15. Hyperion grants to ShowCase a non-exclusive license to market,
distribute, and sublicense Wired subject to the terms and conditions
contained in this Amendment and in the Agreement. ShowCase may change
the name of Wired, add functionality to Wired, and change the
appearance of Wired packaging and display screens. However, ShowCase
shall preserve Hyperion's copyright notices and other proprietary
markings on the Wired software media, documentation, and display
screens.
16. Notwithstanding Section 2.5(a) of the License Agreement, Hyperion
acknowledges and agrees that except for copyright and patent
information displayed in the "About Box"; the IBM AS/400 DB2/OLAP
product will not include an attribution to Hyperion.
17. Except as expressly modified herein, all terms and conditions of the
Agreement remain unaltered and in full force and effect.
18. This Amendment I may be executed in counterparts, each of which shall
be considered an original, and all of which taken together shall
constitute one instrument.
Executed as of the effective date by the authorized representatives of the
parties
SHOWCASE CORPORATION HYPERION SOLUTIONS CORPORATION
By /s/ Xxx Xxxxx By /s/ Xxxxxxx X. Xxxxx
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Name Xxx Xxxxx Name Xxxxxxx X. Xxxxx
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Title President and CEO Title SVP
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