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EXHIBIT 10.33
THIRD AMENDMENT TO LICENSE AGREEMENT
This THIRD AMENDMENT to License Agreement ("Third Amendment") is entered into as
of the 11th day of September, 1998 by and between HYPERION SOLUTIONS
CORPORATION, a Delaware corporation ("Hyperion") and COMSHARE, INCORPORATED, a
Michigan corporation ("Comshare").
RECITALS
Arbor Software Corporation, a Delaware Corporation ("Arbor") and Comshare
entered into a License Agreement dated as of December 23, 1993 (the "License
Agreement").
Arbor and Comshare entered into the First Amendment to License Agreement
effective as of March 1, 1994.
Arbor and Comshare entered into the Second Amendment to License Agreement dated
as of December 12, 1997 (the "Second Amendment").
Arbor changed its name to Hyperion Solutions Corporation effective August 24,
1998 pursuant to a merger with Hyperion Software Corporation.
Hyperion and Comshare wish to further amend the License Agreement (i) to provide
terms under which Comshare may relicense the Hyperion software product known as
the Hyperion Integration Server ("HIS") and (ii) to provide terms under which
the term of the License Agreement may be extended.
NOW THEREFORE, in consideration of the mutual promises contained herein and for
other good and valuable consideration the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. Clause (ii) in the definition of "Software" as set forth in Section 2(a)
of the Second Amendment is hereby deleted and is replaced with the
following:
(ii) the Hyperion software products known as the "Essbase Web Gateway"
and the "Hyperion Integration Server";
2. Section I.A.1.a. of Exhibit D to the Second Amendment ("Exhibit D") is
amended by replacing subsections (4) and (5) as follows and by adding a
new sub-section (6):
* Indicates that material has been omitted and confidential
treatment has been requested therefore. All such omitted
material has been filed separately with the SEC pursuant
to Rule 24b-2.
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(4) Essbase Adjustment Module;
(5) Essbase Web Gateway; or
(6) Hyperion Integration Server.
The purpose of this change to Exhibit D is to provide that HIS may not
be delivered by Comshare to a customer as part of a "Limited Use"
sublicense (as described in Sections I.A of Exhibit D) nor for use with
an Essbase Data Analysis Server licensed under a "Limited Use"
sublicense.
3. In the event that a Comshare customer that has licensed any Software
under a "Limited Use" sublicense wishes to sublicense HIS, the customer
must purchase an upgrade for all of such customer's existing "Limited
Use" sublicenses to "Full Use" sublicenses in the manner prescribed in
Section I.C.5 of Exhibit D at or prior to the time the customer is
provided HIS. For Comshare customers that in connection with their
sublicense of HIS upgrade all of their "Limited Use" licenses to "Full
Use" during the period beginning on the effective date of this Third
Amendment and ending on August 31, 1999, the upgrade fee shall be:
(i) for direct customers, equal to the greater of (x) * of
current CUR or (y) * of the sublicense fees invoiced by
Comshare for the upgrade; and
(ii) for customers of Comshare's agents, resellers and
distributors outside the United States that satisfy the
criteria of Section I.C.3 of Exhibit D, equal to the
greater of (x) * of current CUR or (y) * of the
sublicense fees due to Comshare for the upgrade.
4. Notwithstanding the provisions of Sections I.B.4 and 1.C.5 of Exhibit D,
the upgrade fee payable for any upgrade of a sublicense shall be
computed using the sublicense fees paid for all of the Software licensed
under the sublicense to be upgraded, not just the sublicense fees paid
for the Essbase Data Analysis Server.
5. The parties agree that any sublicense of HIS for use with an Essbase
Data Analysis Server provided under an "Application Specific Use"
sublicense shall be limited to the creation and maintenance of Essbase
multi-dimensional data structures (i.e., "cubes") for use solely with
the pre-packaged Comshare application for which it is licensed and
Comshare shall notify the customer in a written document manually
executed by the customer of such restriction. Such restriction is not
intended to limit the customer's use of HIS to "drill through" from a
multi-dimensional cube to relational data.
6. Notwithstanding the provision of Section I.C.1 of Exhibit D, the
applicable sublicense fee for Comshare's distribution of HIS shall be *
of Hyperion's CUR; provided that the fee of * of CUR shall apply to
sublicenses of HIS distributed by Comshare through its agents, resellers
and distributors located outside the United States in accordance with
Section
* Indicates that material has been omitted and confidential
treatment has been requested therefore. All such omitted
material has been filed separately with the SEC pursuant
to Rule 24b-2. 2
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I.C.3 of Exhibit D. Sublicense fees payable by Comshare to Hyperion for
sublicenses of HIS shall be included in the sublicense fees used to
calculate any applicable reductions of Section I(A), I(B) and I(C) Rates
under Section I.D of Exhibit D, provided that the sublicense fee rate
payable by Comshare for the distribution of HIS shall not be subject to
any volume discounts.
7. In the event (i) of a Corporate Transaction, as described in Section
I.C.6 of Exhibit D, or (ii) that Comshare assigns to a third party its
rights under the License Agreement with respect to the distribution of
HIS as provided in Section I.C.7 of Exhibit D, the applicable royalty
rate for the distribution of HIS shall increase to * of Hyperion's then
current list price for HIS established by Hyperion for the applicable
territory or region.
8. Section 2 of the License Agreement is hereby deleted and replaced with
the following:
2. Term.
(a) This Agreement, as amended, shall be effective as of December 23,
1993, (The "Effective Date") and shall continue in effect until
December 31, 2002, provided that the term may be extended, as
provided in Section 2(b) below. In all events, this Agreement may
be terminated whether or not extended, as provided in Section
8(a). As used herein, "Year 1" means the period from the
Effective Date through December 31, 1994; "Year 2" means the
period from January 1, 1995 through December 31, 1995; and "Year
3" and succeeding Years mean the succeeding calendar years.
(b) If the cumulative amount of sublicense fees and maintenance
royalties payable and paid by Comshare to Hyperion under the
Agreement with respect to a calendar year indicated below equal
or exceeds the target amount indicated next to such year (the
"Target Amount"), the term of this Agreement shall be extended
beyond December 31, 2002 by one (1) additional period of twelve
(12) months. In the event that the sublicense fees and
maintenance royalties payable by Comshare with respect to a given
fiscal year do not equal or exceed the amount indicated, Comshare
may not, without Hyperion's written consent, extend the term of
the Agreement by voluntarily paying the amount otherwise required
to extend the term of the Agreement. In all events the term of
the Agreement will terminate no later than December 31, 2004,
unless the parties otherwise agree in writing. As used herein,
the "Base Amount" equals * times the total license and
maintenance fees payable and paid by Comshare to Hyperion under
the Agreement with respect to sublicenses granted and services
provided during the fiscal quarters ended September 30, and
December 31, 1998.
* Indicates that material has been omitted and confidential
treatment has been requested therefore. All such omitted material
has been filed separately with the SEC pursuant to Rule 24b-2.
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Year ended Cumulative Sublicense Fees &
December 31, Maintenance Fees ("Target Amount")
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1999 * times the Base Amount
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2000 * times the Target Amount for the 1999
calendar year
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9. Comshare hereby consents, notwithstanding the restrictions of Section
6(c) of the License Agreement (as amended by Section 15 of the Second
Amendment), to the distribution by Hyperion, directly or indirectly, of
the Software or of any other Hyperion products or services, through JDA
Software, Inc., an Arizona corporation ("JDA Software"), provided that
Hyperion shall not authorize JDA Software to sublicense a "stand-alone"
version of the Essbase Data Analysis Server in any distribution
territory in which JDA Software distributes its products through an
entity that is also then a Comshare Distributor. Nothing herein,
however, shall limit JDA Software's right in any distribution territory
to upgrade to a "full use" license any Software previously licensed to a
JDA Software customer or sublicense the Software under terms that limit
its use to the application software product with which it is sold, and
any such sublicense or upgrade shall not constitute the sublicense a
"stand-alone" version of the Essbase Data Analysis Server.
10. The following are the addresses for sending notices as provided in
Section 16(c) of the License Agreement:
If to Hyperion, to:
Hyperion Solutions Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Sr. Vice President, Worldwide Sales
With a copy to: General Counsel
Telecopy: (000) 000-0000
If to Comshare, to:
Comshare Incorporated
000 Xxxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attn: President
With a copy to: General Counsel
Telecopy: (000) 000-0000
* Indicates that material has been omitted and confidential
treatment has been requested therefore. All such omitted
material has been filed separately with the SEC pursuant
to Rule 24b-2. 4
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11. Unless otherwise defined herein, capitalized words used in this Third
Amendment shall have the meanings set forth in the License Agreement. To
the extent any provision of this Third Amendment conflicts with the
License Agreement or any prior amendment thereto, the terms of this
Third Amendment shall prevail. Unless expressly modified herein, all
provisions of the License Agreement, as previously amended, remain in
full force and effect.
IN WITNESS WHEREOF, the parties have caused this Third Amendment to be executed
by their duly authorized representatives as of the date first written above.
HYPERION SOLUTIONS CORPORATION COMSHARE, INCORPORATED
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxx Xxxxxx Name: Xxxxxxx X. Xxxxx
Title: President & CEO Title: Senior Vice President &
CFO
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