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EXHIBIT 10.21
FIRST AMENDMENT TO LICENSE AGREEMENT
THIS FIRST AMENDMENT TO LICENSE AGREEMENT is made the 14th day of
December, 1994, by and between Arbor Software Corporation, a Delaware
corporation ("Arbor") and Comshare, Incorporated, a Michigan corporation
("Comshare").
The parties hereby amend the License Agreement between them dated
December 23, 1993 (the "License Agreement"), as follows, effective March 1,
1994:
In Exhibit D, Pricing, add the following as Subsection I.B.7:
7. Notwithstanding the above, however, Comshare shall pay
Arbor * of the applicable Commonly Used Retail Price for all
full use sublicenses granted by Comshare's agents,
resellers and distributors (provided the agent's, reseller's or
distributor's fee is at least * ) located outside the United
States ("International Distributors"), but not by Comshare's or
its subsidiaries' direct sales force. This sublicense fee is
further subject to the volume discounts described in Section
I.C. and to the following qualifications:
a. If an International Distributor grants a sublicense that
includes use of the Software in a country outside that
International Distributor's territory and Comshare employs
a direct sales force (i.e., employees of Comshare or a
Comshare subsidiary) for that product in that country,
then the sublicense fee and the corresponding percentage
due to Arbor shall be prorated between the International
Distributor's territory and the direct sales force country
in accordance with Comshare's customary international
revenue allocation practices.
b. If an International Distributor grants * or more licenses
for a Competing Product in its territory, then all
sublicenses of the Software granted by that International
Distributor from and after the date on which the * license
of the Competing Product
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
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was granted shall not benefit from the special
sublicense fee under this Subsection I.B.7. Comshare shall
inform Arbor at the time such sales of Competing Products
are first authorized and at the times when * sales have been
made in each International Distributor's territory.
c. As used in this Subsection I.B.7, a "Competing Product"
is defined as a stand-alone on line analytical processing
(OLAP) engine that (i) competes directly with the Essbase
Software product, (ii) is sold on a platform on which
Essbase is commercially available and installed, (iii) has
data capacity, local language support, and features that are
similar to those in Essbase, (iv) is licensed by the
International Distributor by authority of its distribution
agreement with Comshare, and (v) is not a Comshare product
existing on the date of this Amendment, the direct evolution
of such a product, or a compatible descendant of an existing
Comshare product on any platform. It is understood that a
packaged application (i.e., an application that does not
require substantial customization) that has embedded
capabilities similar to those of Essbase is not a
"stand-alone" engine for purposes of this provision.
d. Comshare and Arbor shall mutually agree about whether a
particular product qualifies as a Competing Product. By
way of illustration, the parties would expect that products
developed by *
would qualify
as Competing Products, but such products must
nevertheless meet the definition in Subsection c above in
order to be classed as Competing Products. If Comshare and
Arbor cannot, after good faith negotiation, agree on whether
a particular product is a Competing Product, they shall
submit the dispute to arbitration in accordance with the
procedures of Section 15 of the License Agreement,
substituting for the auditor as arbitrator a person familiar
with the computer software industry.
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* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
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e. Total full-use sublicense fees payble to Arbor with
respect to sublicenses granted by International Distributors
must be at least * in calendar year 1995, * in 1996,
and * in 1997 for the special rate granted in this
Subsection I.B.7 to apply. For any year in which the
minimum amount is not ultimately achieved, the full-use
sublicense fees shall be recalculated in accordance with the
rates that would otherwise apply under Section I.B, and any
difference shall be paid to Arbor.
In Exhibit D, Pricing, amend the first paragraph of Section I.C to read:
C. The sublicense prices described in Section I.A, Section I.B.7,
and in the table in Section I.B shall be further reduced in each contract Year
as follows in the event the amounts payable by Comshare to Arbor under all
sections of this Agreement reach the following levels in that Year:
ARBOR SOFTWARE CORPORATION COMSHARE, INCORPORATED
BY: Signature BY: Signature
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Its: Vice President Its: President - CEO
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Date: 12-16-94 Date: 12-14-94
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* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
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