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Exhibit 10.18
AGREEMENT
WHEREAS, Open Solutions Inc., a corporation formed under the laws of
the State of Delaware with its principal place of business at 000 Xxxxxxx Xxxxx
Xxxxx, Xxxxxxxxxxx, Xxxxxxxxxxx ("OSI"); and
WHEREAS, Banking Spectrum, Inc., along with its affiliated corporation
Banking Spectrum Services, Inc., are corporations formed under the laws of the
State of New York each having a principal place of business at 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, XX 00000, hereinafter jointly ("BS"); and
WHEREAS, OSI and BS entered into a Support & Services Agreement
originally dated January 21, 1994 and Amendment No. 1 dated August 29, 1995
(together the "SSA"); and
WHEREAS, pursuant to the SSA, BS was to provide OSI banking regulatory
information and services including The Gold Book in computerized format to be
offered with OSI's The Complete Banking Solution and related Add-On Banking
Modules; and
WHEREAS, pursuant to the SSA, OSI was to pay certain royalties and fees
to BS for consulting, licenses and support services; and
WHEREAS, certain issues have arisen regarding OSI's and BS's
respective rights and obligations under the SSA which issues OSI and BS have
mutually agreed to resolve by entering into this agreement (the "Agreement") and
the Distribution Agreement and Non-Statutory Stock Option Agreement attached
hereto; and
WHEREAS, the parties now desire that the SSA be terminated and that
this Agreement and the Distribution Agreement and the Non-Statutory Stock Option
Agreement, to be executed simultaneously herewith, shall govern the parties'
business relationship and dealings from the date of this Agreement forward.
NOW, THEREFORE, in consideration of the simultaneous, mutual and
reciprocal releases exchanged by the parties hereto, the mutual promises and
covenants of the parties hereto contained in this Agreement, and in resolving
the issues relating to the SSA, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Upon execution of this Agreement, OSI will pay BS the sum of One
Hundred Thousand Dollars ($100,000.00) as payment in full for any and all
consulting services provided by BS to OSI, at any time prior hereto, and any
royalties claimed to be due to BS pursuant to the SSA or for any other reason;
and
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2. OSI and BS will simultaneously with the execution of this
Agreement execute a Non-Statutory Stock Option Agreement in a form identical to
the Non-Statutory Stock Option Agreement attached hereto as Exhibit A; and
3. Simultaneously with the execution of this Agreement, BS will
execute a Distribution Agreement in a form identical to the Distribution
Agreement attached hereto as Exhibit B; and
4. Notwithstanding any provision in the SSA to the contrary,
including without limitation any provisions that survive termination or
cancellation of the SSA, except those provisions of the SSA regarding both OSI's
and BS's obligations to protect the confidentiality of OSI's and BS's
confidential, proprietary and/or trade secret information, the parties hereto
agree that the parties' rights, obligations and liabilities pursuant to the SSA
are hereby extinguished and the SSA is terminated by the execution of this
Agreement; and
5. The parties acknowledge and agree that the terms of this
Agreement and the Distribution Agreement and Non-Statutory Stock Option
Agreement shall govern the business dealings between the parties from the date
of this Agreement forward; and
6. Banking Spectrum, Inc. does hereby remise, release and forever
discharge and by these presents does for its parents, subsidiaries, affiliates,
divisions, subdivisions and any and all related entities, heirs, executors,
administrators, successors and assigns, remise, release and forever discharge,
OSI and any of its heirs, executives, administrators, predecessors, successors,
assigns, parents, subsidiaries, subdivisions, affiliated or related entities,
past, present or future officers, directors, shareholders, agents, servants,
employees, attorneys or representatives from any and all action or actions,
cause and causes of action, suits, debts, dues, sums of money, accounts
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims or demands whatsoever in law or in equity, under federal and
state constitutions, statutes, laws, ordinances or regulations, or under common
law, whether known or unknown, foreseen or unforeseen, which Banking Spectrum,
Inc. ever had, now has, or, with regard to the SSA shall hereafter have or
discover, including but not limited to any such claims in connection with or in
any way relating to or arising out of the SSA; and
7. Banking Spectrum Services, Inc. does hereby remise, release and
forever discharge and by these presents does for its parents, subsidiaries,
affiliates, divisions, subdivisions and any and all related entities, heirs,
executors, administrators, successors and assigns, remise, release and forever
discharge, OSI and any of its heirs, executives, administrators, predecessors,
successors, assigns, parents, subsidiaries, subdivisions, affiliated or related
entities, past, present or future officers,
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directors, shareholders, agents, servants, employees, attorneys or
representatives from any and all action or actions, cause and causes of action,
suits, debts, dues, sums of money, accounts reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions, claims or
demands whatsoever in law or in equity, under federal and state constitutions,
statutes, laws, ordinances or regulations, or under common law, whether known or
unknown, foreseen or unforeseen, which Banking Spectrum Services, Inc. ever had,
now has, or, with regard to the SSA shall hereafter have or discover, including
but not limited to any such claims in connection with or in any way relating to
or arising out of the SSA; and
8. OSI does hereby remise, release and forever discharge and by
these presents does for its heirs, executors, administrators, successors and
assigns, remise, release and forever discharge BS, and each of them, and any of
their heirs, executors, administrators, predecessors, successors, assigns,
parents, subsidiaries, subdivisions, affiliated or related entities, past,
present or future officers, directors, shareholders, agents, servants,
employees, attorneys or representatives, from any and all action or actions,
cause and causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims and demands whatsoever in law or in equity, under federal and
state constitutions, statutes, laws, ordinances or regulations, or under common
law, whether known or unknown, foreseen or unforeseen, which OSI ever had, now
has, or, with regard to the SSA shall hereafter have or discover, including but
not limited to any such claims in connection with or in any way relating to or
arising out of the SSA; and
9. The parties expressly acknowledge that this Agreement is being
made as a compromising settlement of disputed claims; that the execution of and
compliance with this Agreement including any consideration paid in furtherance
of the releases is not and shall not be construed to be an admission by any
party of any liability or obligation whatsoever; and that the parties to this
Agreement expressly deny any fault or liability on their part; that the parties
hereto shall not seek to utilize or assert this Agreement or any consideration
paid in furtherance of this Agreement as an admission in connection with any
proceeding, action or claim; and
10. The parties hereto enter into this Agreement solely to avoid the
time, burden and expense of a protracted dispute; and
11. The parties hereto affirmatively state that they have carefully
read this entire Agreement, including the Non-Statutory Stock Option Agreement
attached hereto as Exhibit A and the Distribution Agreement attached hereto as
Exhibit B, that their attorneys have reviewed this Agreement and the
Non-Statutory Stock Option Agreement and the Distribution Agreement with them
and have fully explained its contents to them; and that the parties hereto have
a full understanding of the
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contents of this Agreement and the Non-Statutory Stock Option Agreement and the
Distribution Agreement and the effects thereof and that they did not rely and
have not relied upon any written or oral representation or statement not set
forth herein by any of the parties hereto or by any of their agents, servants,
employees, representatives or attorneys with regard to the subject matter, basis
or effect of this Agreement and Distribution Agreement or otherwise; and that
they have executed this release voluntarily without coercion from anyone. This
Agreement and the enforceability therefore shall be governed by and construed in
accordance with the laws of the State of Connecticut.
12. If any party to this Agreement shall waive any breach of any
provision of this Agreement, no party shall be deemed to have waived any
preceding or succeeding breach of the same or any other provisions of the
Agreement. If any party to this Agreement breaches any terms of this Agreement,
then that party shall pay to the non-defaulting party all of the non-defaulting
party's costs and expenses including attorneys' fees incurred by that party in
enforcing the terms of this Agreement.
13. This Agreement may be executed in counterparts, each of which,
when so executed and delivered, shall constitute a complete and original
instrument, but all of which together shall constitute one and the same
Agreement, and it shall not be necessary when making proof of this Agreement or
any counterpart thereof to account for any other counterpart.
14. OSI and BS acknowledge and agree that by virtue of having entered
into the SSA, they have had access to confidential, proprietary and trade secret
information of each other. OSI and BS agree not to in any way use, reveal or
disclose any confidential, proprietary or trade secret information belonging to
the other without written authority from the party to whom such information
belongs. In addition, OSI and BS agree to take all necessary and reasonable
steps to protect the confidentiality of all such information.
15. (a) Any controversy or claim arising out of or relating to this
Agreement or the breach thereof will be settled by arbitration, before one
arbitrator, in accordance with the rules of the American Arbitration Association
then in effect, or by the American Arbitration Association in the event the
parties are unable to agree upon a selection of an arbitrator. Judgment upon the
award rendered by the arbitrator may be entered in any court having
jurisdiction. The arbitrator will be selected by the parties from a panel of
arbitrators/attorneys having experience with the data processing business. The
parties agree that any arbitration shall be held in Hartford, Connecticut. The
arbitrator will have no authority to award damages not measured by the
prevailing party's actual damages and may not, in any event, make any relief,
finding or award that does not conform to the terms and conditions of this
Agreement. Neither party, nor the arbitrator, may disclose the existence or
results of
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any arbitration hereunder without the express prior written consent of both
parties. Prior to initiation of arbitration, the aggrieved party will give the
other party written notice, in accordance with this Agreement, describing the
claim and amount as to which it intends to initiate arbitration.
(b) Notwithstanding the foregoing agreement regarding arbitration,
if either party, individually or in concert with any other person, breaches, or
threatens to commit a breach of any of the provisions of this Agreement, the
other party shall have the right and remedy to have this Agreement specifically
enforced by any court of competent jurisdiction by seeking and receiving
temporary and/or preliminary injunctive relief, specific performance or other
appropriate relief. The parties agree that any court granting any equitable
relief shall maintain jurisdiction to modify or enforce any equitable issued by
the court.
IN WITNESS WHEREOF, the parties have signed this instrument dated as of
this 26th day of March, 1998.
BANKING SPECTRUM, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this the 26th day of March, 1998, before me personally appeared
Xxxxxx X. Xxxxxx, the President of BANKING SPECTRUM, INC., Signer of the
foregoing instrument and acknowledged the same to be his/her free act and deed,
before me.
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Notary Public
My Commission Expires: June 30, 1999
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BANKING SPECTRUM SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this the 26th day of March, 1998, before me personally appeared
Xxxxxx X. Xxxxxx, the President of BANKING SPECTRUM SERVICES, INC., Signer of
the foregoing instrument and acknowledged the same to be his/her free act and
deed, before me.
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Notary Public
My Commission Expires: June 30, 1999
OPEN SOLUTIONS INC.
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chairman/CEO
STATE OF CONNECTICUT )
) ss.:
COUNTY OF HARTFORD )
On this the 30th day of March, 1998, before me personally appeared
Xxxxxxx Xxxxxxxx, the Chairman and CEO of BANKING SPECTRUM, INC., Signer of the
foregoing instrument and acknowledged the same to be his/her free act and deed,
before me.
/s/ Xxxxx X. Xxxxxxxx
------------------------------------
Notary Public
My Commission Expires: Sep. 30, 2001
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EXHIBIT A
OPEN SOLUTIONS INC.
NON-STATUTORY STOCK OPTION AGREEMENT
------------------------------------
1. GRANT OF OPTION. OPEN SOLUTIONS INC., a Delaware corporation (the
"Company"), hereby grants to _____________________ (the "Optionee") an option,
pursuant to the Company's 1994 Stock Option Plan (the "Plan"), to purchase an
aggregate of _______ shares of Common Stock ("Common Stock") of the Company at a
price of $0.45 per share, purchasable as set forth in and subject to the terms
and conditions of this option and the Plan. Except where the context otherwise
requires, the term "Company" shall include the parent and all present and future
subsidiaries of the Company as defined in Sections 424(e) and 424(f) of the
Internal Revenue Code of 1986, as amended or replaced from time to time (the
"Code").
2. NON-STATUTORY STOCK OPTION. This option is not intended to qualify
as an incentive stock option within the meaning of Section 422 of the Code.
3. EXERCISE OF OPTION AND PROVISIONS FOR TERMINATION.
(a) VESTING SCHEDULE. Except as otherwise provided in this
Agreement, this option may be exercised prior to the 10th anniversary of the
date of grant (hereinafter the "Expiration Date") as to an aggregate of _______
shares of Common Stock of the Company. The option shall be exercisable, in whole
or in part, with respect to all shares covered by this option not yet purchased
at any time prior to the Expiration Date or the earlier termination of this
option. This option may not be exercised at any time on or after the Expiration
Date.
(b) EXERCISE PROCEDURE. Subject to the conditions set forth in this
Agreement, this option shall be exercised by the Optionee's delivery of written
notice of exercise to the Treasurer of the Company, specifying the number of
shares to be purchased and the purchase price to be paid therefor and
accompanied by payment in full in accordance with Section 4. Such exercise shall
be effective upon receipt by the Treasurer of the Company of such written notice
together with the required payment. The Optionee may purchase less than the
number of shares covered hereby, provided that no partial exercise of this
option may be for any fractional share or for fewer than 10 whole shares.
(c) EFFECT OF TERMINATION OF RELATIONSHIP WITH THE COMPANY. In the
event that the Optionee ceases to be a consultant or advisor to the Company
prior to the Expiration Date, this option may be exercised at any time prior to
the Expiration Date, subject to the terms and conditions set forth in this
Agreement.
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4. PAYMENT OF PURCHASE PRICE.
(a) METHOD OF PAYMENT. Payment of the purchase price for shares
purchased upon exercise of this option shall be made (i) by delivery to the
Company of cash or a check to the order of the Company in an amount equal to the
purchase price of such shares, (ii) subject to the consent of the Company, by
delivery to the Company of shares of Common Stock of the Company then owned by
the Optionee having a fair market value equal in amount to the purchase price of
such shares, (iii) by any other means which the Board of Directors determines
are consistent with the purpose of the Plan and with applicable laws and
regulations (including, without limitation, the provisions of Rule 16b-3 under
the Securities Exchange Act of 1934 and Regulation T promulgated by the Federal
Reserve Board), or (iv) by any combination of such methods of payment.
(b) VALUATION OF SHARES OR OTHER NON-CASH CONSIDERATION TENDERED IN
PAYMENT OF PURCHASE PRICE. For the purposes hereof, the fair market value of any
share of the Company's Common Stock or other non-cash consideration which may be
delivered to the Company in exercise of this option shall be determined in good
faith by the Board of Directors of the Company.
(c) DELIVERY OF SHARES TENDERED IN PAYMENT OF PURCHASE PRICE. If
the Optionee exercises this option by delivery of shares of Common Stock of the
Company, the certificate or certificates representing the shares of Common Stock
of the Company to be delivered shall be duly executed in blank by the Optionee
or shall be accompanied by a stock power duly executed in blank suitable for
purposes of transferring such shares to the Company. Fractional shares of Common
Stock of the Company will not be accepted in payment of the purchase price of
shares acquired upon exercise of this option.
(d) RESTRICTIONS ON USE OF OPTION STOCK. Notwithstanding the
foregoing, no shares of Common Stock of the Company may be tendered in payment
of the purchase price of shares purchased upon exercise of this option if the
shares to be so tendered were acquired within twelve (12) months before the date
of such tender, through the exercise of an option granted under the Plan or any
other stock option or restricted stock plan of the Company.
5. DELIVERY OF SHARES; COMPLIANCE WITH SECURITIES LAWS, ETC.
(a) GENERAL. Subject to the Company's right of first refusal under
Section 12, the Company shall, upon payment of the option price for the number
of shares purchased and paid for, make prompt delivery of such shares to the
Optionee, provided that if any law or regulation requires the Company to take
any action with respect to such shares before the issuance thereof, then the
date of delivery of such shares shall be extended for the period necessary to
complete such action.
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(b) LISTING, QUALIFICATION, ETC. This option shall be subject to
the requirement that if, at any time, counsel to the Company shall determine
that the listing, registration or qualification of the shares subject hereto
upon any securities exchange or under any state or federal law, or the consent
or approval of any governmental or regulatory body, or that the disclosure of
non-public information or the satisfaction of any other condition is necessary
as a condition of, or in connection with, the issuance or purchase of shares
hereunder, this option may not be exercised, in whole or in part, unless such
listing, registration, qualification, consent or approval, disclosure or
satisfaction of such other condition shall have been effected or obtained on
terms acceptable to the Board of Directors. Nothing herein shall be deemed to
require the Company to apply for, effect or obtain such listing, registration,
qualification or disclosure, or to satisfy such other condition.
6. NONTRANSFERABILITY OF OPTION. This option is personal and no rights
granted hereunder may be transferred, assigned, pledged or hypothecated in any
way (whether by operation of law or otherwise) nor shall any such rights be
subject to execution, attachment or similar process, except that this option may
be transferred (i) by will or the laws of descent and distribution or (ii)
pursuant to a qualified domestic relations order as defined in Section 414(p) of
the Code. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise
dispose of this option or of such rights contrary to the provisions hereof, or
upon the levy of any attachment or similar process upon this option or such
rights, this option and such rights shall, at the election of the Company,
become null and void.
7. NO SPECIAL EMPLOYMENT OR SIMILAR RIGHTS. Nothing contained in the
Plan or this option shall be construed or deemed by any person under any
circumstances to bind the Company to continue the employment or other
relationship of the Optionee with the Company for the period within which this
option may be exercised.
8. RIGHTS AS A SHAREHOLDER. The Optionee shall have no rights as a
shareholder with respect to any shares which may be purchased by exercise of
this option (including, without limitation, any rights to receive dividends or
non-cash distributions with respect to such shares) unless and until a
certificate representing such shares is duly issued and delivered to the
Optionee. No adjustment shall be made for dividends or other rights for which
the record date is prior to the date such stock certificate is issued.
9. ADJUSTMENT PROVISIONS.
(a) GENERAL. If, through or as a result of any merger,
consolidation, sale of all or substantially all of the assets of the Company,
reorganization, recapitalization, reclassification, stock dividend, stock split,
reverse stock split or other similar transaction, (i) the outstanding shares of
Common Stock are increased
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or decreased or are exchanged for a different number or kind of shares or other
securities of the Company, or (ii) additional shares or new or different shares
or other securities of the Company or other non-cash assets are distributed with
respect to such shares of Common Stock or other securities, the Optionee shall,
with respect to this option or any unexercised portion hereof, be entitled to
the rights and benefits, and be subject to the limitations, set forth in
Section 16(a) of the Plan.
(b) BOARD AUTHORITY TO MAKE ADJUSTMENTS. Any adjustments under
this Section 9 will be made by the Board of Directors, whose determination as to
what adjustments, if any, will be made and the extent thereof will be final,
binding and conclusive. No fractional shares will be issued pursuant to this
option on account of any such adjustments.
10. MERGERS, CONSOLIDATION, DISTRIBUTIONS, LIQUIDATIONS, ETC. In the
event of a merger or consolidation or sale of all or substantially all of the
assets of the Company in which outstanding shares of Common Stock are exchanged
for securities, cash or other property of any other corporation or business
entity, or in the event of a liquidation of the Company, prior to the Expiration
Date or termination of this option, the Optionee shall, with respect to this
option or any unexercised portion hereof, be entitled to the rights and
benefits, and be subject to the limitations, set forth in Section 17(a) of the
Plan.
11. WITHHOLDING TAXES. The Company's obligation to deliver shares upon
the exercise of this option shall be subject to the Optionee's satisfaction of
all applicable federal, state and local income and employment tax withholding
requirements.
12. RIGHT OF FIRST REFUSAL.
(a) GRANT. The Company is hereby granted the right of first refusal
(the "Right of First Refusal"), exercisable in connection with any proposed
transfer of any Shares purchased in accordance with this Agreement. For purposes
of this Section 12, the term "transfer" shall include any sale, assignment,
pledge, encumbrance or other disposition for value of the Shares intended to be
made by the Optionee, but shall not include any of the permitted transfers under
paragraph (e) of Section 3 and the term "Optionee" includes any successor in
interest by reason of purchase, gift or other transfer.
(b) NOTICE OF INTENDED DISPOSITION. In the event the Optionee
desires to accept a bona fide third-party offer for the transfer of any or all
of the Shares (the shares subject to such offer to be hereinafter called the
"Target Shares"), the Optionee shall promptly (i) deliver to the Company written
notice as specified in Section 14 (the "Disposition Notice") of the terms and
conditions of the offer, including the purchase price and the identity of the
third-party offeror, and (ii) provide satisfactory
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proof that the disposition of Target Shares to such third-party offeror would
not be in contravention of any other provision set forth in this Agreement.
(c) EXERCISE OF RIGHT. The Company (or its assignees) shall, for a
period of twenty-five (25) days following receipt of the Disposition Notice,
have the right to repurchase any or all of the Target Shares specified in the
Disposition Notice upon the same terms and conditions specified therein, subject
to the immediately following paragraph. Such right shall be exercisable by
delivery of written notice (the "Exercise Notice") to the Optionee prior to the
expiration of the twenty-five (25)-day exercise period. If such right is
exercised with respect to all the Target Shares specified in the Disposition
Notice, then the Company (or its assignees) shall effect the repurchase of the
Target Shares, including payment of the purchase price, not more than five (5)
business days after delivery of the Exercise Notice; and at such time the
Optionee shall deliver to the Company the certificates representing the Target
Shares to be repurchased, each certificate to be properly endorsed for transfer.
Should the purchase price specified in the Disposition Notice be
payable in property other than cash or evidences of indebtedness, the Company
(or its assignees) shall have the right to pay the purchase price in the form of
cash equal in amount to the value of such property. If the Optionee and the
Company (or its assignees) cannot agree on such cash value within ten (10) days
after the Company's receipt of the Disposition Notice, the valuation shall be
made by an appraiser of recognized standing selected by the Optionee and the
Company (or its assignees) or, if they cannot agree on an appraiser within
twenty (20) days after the Company's receipt of the Disposition Notice, each
shall select an appraiser of recognized standing and the two appraisers shall
designate a third appraiser of recognized standing, whose appraisal shall be
determinative of such value. The cost of such appraisal shall be shared equally
by the Optionee and the Company. The closing shall then be held on the LATER of
(i) the fifth business day following delivery of the Exercise Notice or (ii) the
fifth business day after such cash valuation shall have been made.
(d) NON-EXERCISE OF RIGHT. In the event the Exercise Notice is not
given to the Optionee within twenty-five (25) days following the date of the
Company's receipt of the Disposition Notice, the Optionee shall have a period of
thirty (30) days thereafter in which to sell or otherwise dispose of the Target
Shares to the third-party offeror identified in the Disposition Notice upon
terms and conditions (including the purchase price) no more favorable to such
third-party offeror than those specified in the Disposition Notice; PROVIDED,
however, that any such sale or disposition must not be effected in contravention
of the other provisions of this Agreement. The third-party offeror shall acquire
the Target Shares free and clear of the Company's Right of First Refusal
hereunder, but the acquired shares shall remain subject to the securities law
restrictions of this Agreement. In the event Optionee does not effect such sale
or disposition of the Target Shares within the specified thirty (30)-day period,
the Company's Right of First Refusal shall continue
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to be applicable to any subsequent disposition of the Target Shares by Optionee
until such right lapses in accordance with paragraph (f) below.
(e) PARTIAL EXERCISE OF RIGHT. In the event the Company (or its
assignees) makes a timely exercise of the Right of First Refusal with respect to
a portion, but not all, of the Target Shares specified in the Disposition
Notice, Optionee shall have the option, exercisable by written notice to the
Company delivered within thirty (30) days after the date of the Disposition
Notice, to effect the sale of the Target Shares pursuant to one of the following
alternatives:
(i) sale or other disposition of all the Target
Shares to the third-party offeror identified in the Disposition
Notice, but in full compliance with the requirements of
paragraph (d), as if the Company did not exercise the Right of
First Refusal hereunder; or
(ii) sale to the Company (or its assignees) of the
portion of the Target Shares which the Company (or its
assignees) has elected to purchase, such sale to be effected in
substantial conformity with the provisions of paragraph (c)
above.
Failure of Optionee to deliver timely notification to the
Company under this paragraph (e) shall be deemed to be an election by Optionee
to sell the Target Shares pursuant to alternative (i) above.
(f) LAPSE. The Right of First Refusal under this
Section 12 shall lapse and cease to have effect upon the sale of securities
pursuant to a registration statement filed by the Company under the Securities
Act in connection with the firm commitment underwritten offering of its
securities to the general public is consummated or when the Company is subject
to the requirements of Sections 12(g) or 15(d) of the Securities and Exchange
Act of 1934, whichever event shall first occur.
13. INVESTMENT REPRESENTATIONS; LEGENDS.
(a) REPRESENTATIONS. The Optionee represents, warrants
and covenants that:
(i) Any shares purchased upon exercise of this
option shall be acquired for the Optionee's account for
investment only, and not with a view to, or for sale in
connection with, any distribution of the shares in violation of
the Securities Act of 1933 (the "Securities Act"), or any rule
or regulation under the Securities Act.
(ii) The Optionee has had such opportunity as he, she
or it has deemed adequate to obtain from representatives of the
Company such
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information as is necessary to permit the Optionee to evaluate
the merits and risks of his or her investment in the Company.
(iii) The Optionee is able to bear the economic risk
of holding such shares acquired pursuant to the exercise of
this option for an indefinite period.
(iv) The Optionee understands that (A) the shares
acquired pursuant to the exercise of this option will not be
registered under the Securities Act and are "restricted
securities" within the meaning of Rule 144 under the Securities
Act; (B) such shares cannot be sold, transferred or otherwise
disposed of unless they are subsequently registered under the
Securities Act or an exemption from registration is then
available; (C) in any event, an exemption from registration
under Rule 144 or otherwise under the Securities Act not be
available for at least two years and even then will not be
available unless a public market then exists for the Common
Stock, adequate information concerning the Company is then
available to the public, and other terms and conditions of
Rule 144 are complied with; and (D) there is now no
registration statement on file with the Securities and
Exchange Commission with respect to any stock of the Company
and the Company has no obligation or current intention to
register any shares acquired pursuant to the exercise of this
option under the Securities Act.
(v) The Optionee agrees that, if the Company offers
any of its Common Stock for sale pursuant to a registration
statement under the Securities Act, the Optionee will not,
without the prior written consent of the Company, offer, sell,
contract to sell or otherwise dispose of, directly or
indirectly (a "Disposition"), any shares purchased upon
exercise of this option for a period of 90 days after the
effective date of such registration statement.
By making payment upon exercise of this option, the Optionee shall be deemed to
have reaffirmed, as of the date of such payment, the representations made in
this Section 13.
(b) LEGENDS ON STOCK CERTIFICATE. All stock certificates
representing shares of Common Stock issued to the Optionee upon exercise of this
option shall have affixed thereto legends substantially in the following forms,
in addition to any other legends required by applicable state law:
"The shares of stock represented by this certificate have not
been registered under the Securities Act of 1933 and may not be
transferred, sold or otherwise disposed of in the absence of an
-7-
14
effective registration statement with respect to the shares
evidenced by this certificate, filed and made effective under
the Securities Act of 1933, or an opinion of counsel
satisfactory to the Company to the effect that registration
under such Act is not required."
"The shares of stock represented by this certificate are
subject to certain restrictions on transfer and a right of
first refusal contained in an Option Agreement, a copy of which
will be furnished upon request by the issuer."
14. MISCELLANEOUS.
(a) Except as provided herein, this option may not be amended
or otherwise modified unless evidenced in writing and signed by the Company and
the Optionee.
(b) All notices under this option shall be mailed or delivered
by hand to the parties at their respective addresses set forth beneath their
names below or at such other address as may be designated in writing by either
of the parties to one another.
(c) This option shall be governed by and construed in
accordance with the laws of the State of Connecticut.
Date of Grant: OPEN SOLUTIONS INC.
____________, 19__ By:
_________________________
Title:
_________________________
Address:
-8-
15
OPTIONEE'S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the
terms and conditions thereof. The undersigned hereby acknowledges receipt of a
copy of the Company's 1994 Stock Option Plan.
[ ]
______________________________________
ADDRESS:
______________________________
______________________________
-9-
16
EXHIBIT B
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT (the "Distribution Agreement"), dated
March __, 1998 ("Effective Date"), is by and between Banking Spectrum, Inc.
("Banking Spectrum"), a New York corporation, with principal offices at
00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and Open Solutions Inc.
("OSI"), a Delaware corporation with principal offices at 000 Xxxxxxx Xxxxx
Xxxxx, Xxxxxxxxxxx, Xxxxxxxxxxx 00000.
RECITALS
A. This Distribution Agreement implements elements of that certain
Agreement, dated March ___, 1998 (the "Agreement"), between the parties in
connection with the termination of various matters in dispute that arose under
that certain Support and Services Agreement between the parties, dated
January 21, 1994.
B. This Distribution Agreement establishes a structure and process by
which OSI, upon request, will obtain certain digitized data and information, and
associated software, all as described herein, from Banking Spectrum, enabling
OSI to fulfill certain of its current contractual commitments with up to twenty
(20) Client Banks.
C. In satisfying its obligations to the Client Banks, OSI will function
only as an initial provider of the Banking Spectrum product, with Banking
Spectrum assuming any licensing, product delivery and any post-delivery product
support obligations under direct contractual relationships between Banking
Spectrum and those Client Banks.
NOW, THEREFORE, in consideration of the premises and mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound, hereby agree as follows:
SECTION 1
DEFINITIONS
As used herein, the following words and phrases shall have the
following meanings:
-1-
17
1.1 "CLIENT BANKS OR CLIENT BANK." The financial institutions listed on
EXHIBIT A that, upon request to OSI, have the right to receive an initial copy
of the Product under existing agreements between OSI and the Client Banks.
1.2 "DIRECT END-USER SUPPORT." Telephone hotline consultation service
provided to End-Users by Banking Spectrum in accordance with the terms and
conditions of the agreement between an End-User and Banking Spectrum.
1.3 "END-USERS OR END-USER." Client Banks that, upon request to OSI,
receive the Product from Banking Spectrum, at OSI's direction.
1.4 "END-USER LICENSE." A software license by which Banking Spectrum
grants its customers certain rights to use the Gold Book, which license shall be
substantially the same as the form of license that is Exhibit B.
1.5 "GOLD BOOK." The Banking Spectrum product known as "The Electronic
Gold Book: The Manual of Bank Operations", which is the standard, off-the-shelf
machine readable version of the text files and accompanying software programs,
in object code only, that, at the time of any OSI request hereunder, is
routinely offered by Banking Spectrum to financial institutions in accordance
with its normal business practices, as such product is further described in
EXHIBIT C.
1.6 "PRODUCT." The Banking Spectrum deliverable to an End-User, which
is a package comprised of (i) the Gold Book, which resides on diskettes, (ii)
the instruction booklets and other information prepared for End-Users concerning
the use of the Gold Book; and (iii) a fully executed copy of End-User License.
As used in this Distribution Agreement, unless the content requires otherwise,
the term "Product" will be used interchangeably with the term "Gold Book".
1.7 "UPDATES." Periodic information updates to the Gold Book as
described in any documentation and marketing literature relating to the Product,
which Updates, if any, shall be provided directly to the End-Users by Banking
Spectrum pursuant to the End-User License and at such cost to each End-User as
therein provided.
SECTION 2
DISTRIBUTION APPOINTMENT; BANKING SPECTRUM SUPPORT
2.1 Banking Spectrum grants to OSI the nonexclusive right to market and
distribute an initial copy of the Product to End-Users in accordance with this
Distribution Agreement. As further described in SECTION 3, during the term of
this Distribution Agreement, Banking Spectrum agrees to promptly provide one (1)
initial copy of the Product to each Client Bank designated by OSI, which number
of initial
-2-
18
copies of the Product in the aggregate shall not exceed twenty (20), or one (1)
copy per Client Bank. The version of the Gold Book to be supplied to each Client
Bank in response to any such request shall be the latest version or release of
the Gold Book that is being offered by Banking Spectrum to its customers
(including Updates to existing customers that have installed the latest version
or release of the Gold Book) at the time of the OSI request.
2.2 As requested by an End-User, Banking Spectrum shall make available
the Direct End-User Support at such fees and in accordance with such terms and
conditions as Banking Spectrum and each End-User shall mutually agree.
SECTION 3
PRODUCT ORDERS AND SHIPMENT
3.1 (A) From time to time, OSI shall prepare and submit to Banking
Spectrum purchase orders stating the number of Client Banks that are to receive
initial copies of the Product, along with shipping instructions, with shipment
by Banking Spectrum to each designated Client Bank expected to occur no later
than thirty (30) days thereafter.
(B) If at the time of OSI's request for a copy of the Product, the Gold
Book no longer is commercially offered, Banking Spectrum shall provide the
designated Client Bank with a copy of the last version of the Gold Book that was
made available in accordance with Banking Spectrum's then-existing commercial
practices.
3.2 Banking Spectrum shall use all reasonable efforts to ship the
Product to each Client Bank within ten (10) days of receipt of orders for the
Product. Packaging and means of shipment of Product shall be determined by
Banking Spectrum unless otherwise agreed. Risk of loss with respect to Product
shall pass from Banking Spectrum at the time Product is delivered to the
designated Client Bank. Product damaged in transit promptly shall be returned to
Banking Spectrum, accompanied by such documentation as may reasonably be
required to assert any claims that may lie against the carrier causing such
damage.
3.3 Banking Spectrum agrees that its failure to ship the Product to an
End-User in accordance with this Section 3 shall be deemed to be a material
default under this Distribution Agreement, subject to the procedures stated in
SECTION 9.2
-3-
19
SECTION 4
PAYMENT
4.1 The per-copy compensation for up to twenty (20) initial copies of
the Gold Book, including up to twenty (20) End-User Licenses, has been paid in
advance to Banking Spectrum in accordance with the Agreement. The license fee
for the End-User's use of the initial copies of the Product shall be deemed to
be fully paid for the remaining term of the contract between OSI and each of the
Client Banks, not to exceed a period of five (5) years from the Effective Date.
4.2 To the extent that any fees other than the license fees for use of
the initial copy of the Gold Book are incurred by an End-User, E.G., fees for
Updates and the Direct End-User Support, those fees shall be paid to Banking
Spectrum under an agreement between Banking Spectrum and the End-User.
SECTION 5
PROPRIETARY PROTECTION OF PROGRAM
5.1 OSI is authorized to engage in the marketing and distribution of
the initial copies of the Product, in the form and packaging as delivered by
Banking Spectrum, in accordance with the terms of this Distribution Agreement.
This Distribution Agreement shall not be construed to grant to OSI any other
right, title, or interest in any intellectual property rights embodied in or
associated with the Product, or any right to copy, modify, loan, or lease any or
all portions of the Gold Book. All other OSI rights in respect of the Product
shall be subject to the terms and conditions of its own separately negotiated
End-User License with Banking Spectrum. Under no circumstances shall OSI
decompile the object code portion of the Gold Book to a source code version.
5.2 Except as provided in this Distribution Agreement, OSI agrees not
to loan, rent, sublicense or provide access to the Gold Book, for a fee or
otherwise, to any third party for the purpose of any execution, use, or copying
of the Gold Book not authorized by the End-User License included with each
Product.
SECTION 6
WARRANTIES AND LIMITATIONS OF LIABILITY
6.1 Banking Spectrum warrants to and for the benefit of OSI that
Banking Spectrum owns or has rights to the Gold Book and any associated
documentation, including any intellectual property rights associated therewith,
that are adequate to enable Banking Spectrum (i) to perform its obligations,
(ii) to authorize the
-4-
20
distribution of the Product by OSI, and (iii) to authorize the use of the Gold
Book by the End-Users in accordance with the terms and conditions of the
End-User License.
6.2 Banking Spectrum warrants to and for the benefit of OSI that the
Product and the distribution thereof do not infringe the trademarks, patents,
copyrights, or other proprietary rights of any third party.
6.3 Banking Spectrum warrants to and for the benefit of OSI and the
End-Users that the Gold Book will operate in substantial compliance with the
applicable functional description of the Gold Book provided to End-Users from
time to time.
6.4 Banking Spectrum agrees to copy the "Returns Form" attached hereto
as EXHIBIT D and to provide adequate quantities of such Returns Forms to all
End-Users. The End-Users may return unopened or opened packages of Product to
Banking Spectrum only when a Returns Form has been duly filled out and signed by
an End-User indicating one of the approved reasons for return.
6.5 OSI acknowledges that Banking Spectrum does not warrant to an
End-User that the content of the Gold Book is an accurate representation of, or
in compliance with, the applicable state and/or Federal laws and regulations.
SECTION 7
DISCLAIMER AND LIMITATIONS OF LIABILITY
7.1 THE WARRANTIES SET FORTH IN SECTION 6 ARE IN LIEU OF ALL OTHER
WARRANTIES, AND BANKING SPECTRUM DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS
OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7.2 Subject to SECTION 8.1, the liability of Banking Spectrum to OSI
for any claim whatsoever related to the Product or this Distribution Agreement,
including any cause of action sounding in contract, tort, or strict liability,
for each of the affected Client Banks that has obtained (or has requested and
not obtained) an initial copy of the Product shall not exceed the full costs
incurred by OSI with respect to any such Client Bank in replacing the Gold Book
with a third party product that OSI in its sole discretion deems to be a
reasonable and comparable equivalent of the Gold Book; PROVIDED further that
notwithstanding the foregoing, Banking Spectrum's liability under this
SECTION 7.2 (but excluding SECTION 8.1) shall not in the aggregate exceed the
sum of One Hundred Thousand Dollars ($100,000.00).
-5-
21
7.3 Neither party shall be liable to the other party (or any customer
of such other party) for any loss-of-profit, loss of data, down-time, indirect,
incidental, special or consequential damages arising out of or relating to its
performance or lack thereof under this Distribution Agreement or the use of the
Gold Book, whether or not such party has been advised of the possibility of such
claim, demand or action.
7.4 The foregoing limitations of liability shall not apply to damages
arising out of claims alleging infringement of any third-party proprietary
rights for which indemnification is made pursuant to SECTION 8.1 hereof.
SECTION 8
INDEMNIFICATION
8.1 Banking Spectrum hereby indemnifies and agrees to defend and hold
OSI harmless from and against any and all claims, demands or actions and costs,
liabilities, or losses arising out of any actual or alleged infringement of any
patent, trademark, or copyright or violation of any trade secret or other
intellectual property rights by any component of the Product furnished
hereunder, including, but not limited to, claims that arise from the End-User's
use of the Gold Book. Further, to the extent that a Client Bank makes a claim,
demand or brings an action against Banking Spectrum and/or OSI arising out of
any breach by Banking Spectrum of its obligations to that Client Bank under the
End-User License, Banking Spectrum hereby indemnifies and agrees to hold OSI
harmless from any and all such claims, demands or actions and costs, liabilities
or losses that arise therefrom. This duty to indemnify OSI shall be in addition
to the warranty obligations of Banking Spectrum.
8.2 OSI hereby indemnifies and agrees to hold Banking Spectrum harmless
from and against any and all claims, demands, or actions and any cost,
liabilities, or losses arising out of any statements or representations made by
OSI, employees, or agents with respect to the Gold Book, except for statements
that are direct quotations of the documentation and marketing materials provided
by Banking Spectrum to OSI for use in connection with the distribution of the
Product.
8.3 The foregoing indemnities are in addition to any rights otherwise
under this Distribution Agreement, but shall be expressly contingent on the
party seeking indemnity (i) notifying the indemnifying party in writing of any
such claim, demand, action, or liability; (ii) cooperating in the defense or
settlement thereof; and (iii) allowing the indemnifying party to control the
defense or settlement of the same.
-6-
22
SECTION 9
TERM AND TERMINATION
9.1 The term of this Distribution Agreement shall be five (5) years
from the Effective Date, or the date that initial copy number twenty (20) of the
Product is delivered to an End-User, whichever first occurs.
9.2 Either party may terminate this Distribution Agreement if the other
party commits a material breach of any of the terms hereof and such breach
remains uncured thirty (30) days after written notice of such breach has been
furnished to the party in breach by the other party.
SECTION 10
MISCELLANEOUS
10.1 OSI is an independent contractor under this Distribution
Agreement, and nothing herein shall be construed to create a partnership, joint
venture, or agency relationship between the parties hereto.
10.2 Each party represents and warrants that it has full power and
authority to undertake the obligations set forth in this Distribution Agreement
and that it has not entered into any other agreement nor will it enter into any
other agreements that would render it incapable of satisfactorily performing its
obligations hereunder. This Distribution Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
representatives, successors and permitted assigns.
10.3 Each party agrees that it will comply with the material
requirements of all applicable laws and regulations of governmental bodies or
agencies in its performance with respect to the distribution and licensing of
the Product under this Distribution Agreement.
10.4 Each party represents that it is acting on its own behalf and is
not acting as an agent for or on behalf of any third party. Neither party may
assign its rights or obligations under this Distribution Agreement without the
prior written consent of the other party.
10.5 All notices and other communications required or permitted to be
given under this Distribution Agreement shall be in writing and shall be
considered effective when deposited in the U.S. mail, postage prepaid, and
addressed to the appropriate party at the address first stated above, unless by
such notice a different address shall have been designated.
-7-
23
10.6 (A) All questions concerning the validity, operation,
interpretation, and construction of this Distribution Agreement will be governed
by and determined in accordance with the laws of the State of Connecticut, not
including the law of conflicts of laws.
(B) Any controversy or claim arising out of or relating to this
Distribution Agreement or the breach thereof, will be settled by arbitration,
before one arbitrator, in accordance with the rules of the American Arbitration
Association then in effect, or by the American Arbitration Association in the
event the parties are unable to agree upon a selection of an arbitrator.
Judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction. The arbitrator will be selected by the parties from a panel
of arbitrators/attorneys having experience with the data processing business.
The parties agree that any arbitration shall be held in Hartford, Connecticut.
The arbitrator will have no authority to award damages not measured by the
prevailing party's actual damages and may not, in any event, make any relief,
finding or award that does not conform to the terms and conditions of this
Distribution Agreement. Neither party, nor the arbitrator, may disclose the
existence or results of any arbitration hereunder without the express prior
written consent of both parties. Prior to initiation of arbitration, the
aggrieved party will give the other party written notice, in accordance with
this Distribution Agreement, describing the claim and amount as to which it
intends to initiate arbitration.
(C) Notwithstanding the foregoing agreement regarding arbitration,
if either party, individually or in concert with any other person, breaches, or
threatens to commit a breach of any of the provisions of this Distribution
Agreement, the other party shall have the right and remedy to have this
Distribution Agreement specifically enforced by any court of competent
jurisdiction by seeking and receiving temporary and/or preliminary injunctive
relief, specific performance or other appropriate relief. The parties agree that
any court granting any equitable relief shall maintain jurisdiction to modify or
enforce any equitable relief issued by the court.
10.7 If any action in arbitration or at law or in equity is necessary
to enforce or interpret the terms of this Distribution Agreement, the prevailing
party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements, in addition to any other relief to which such party may be
entitled.
10.8 Neither party shall by mere lapse of time, without giving notice
or taking other action hereunder, be deemed to have waived any breach by the
other party of any of the provisions of this Distribution Agreement. Further,
the waiver by either party of a particular breach of this Distribution Agreement
by the other shall not be construed as or constitute a continuing waiver of such
breach or of other breaches of the same or other provisions of this Distribution
Agreement.
-8-
24
10.9 Except for the Agreement, the parties hereto acknowledge that this
Distribution Agreement is the complete and exclusive statement of agreement
respecting the subject matter hereto and supersedes all proposals (oral or
written), understandings, representations, conditions, and other communications
between the parties relating hereto. This Distribution Agreement may be amended
only by a subsequent writing that specifically refers to this Distribution
Agreement and is signed by both parties, and no other act, document, usage, or
custom shall be deemed to amend this Distribution Agreement.
WHEREBY, the parties hereto have caused this Distribution Agreement to
be executed in duplicate copies by their duly authorized representatives.
OPEN SOLUTIONS INC.
By:
_____________________________
Title:
_____________________________
Date: March __, 1998
BANKING SPECTRUM, INC.
By:
_____________________________
Title:
_____________________________
Date: March __, 1998
-9-
25
EXHIBIT A
LIST OF CLIENT BANKS
The Simsbury Bank
Seneca Falls Savings Bank
Gloversville Federal
American Federal Bank
First Federal Savings of Xxxxxx
Patriot Bank
Xxxx Co-operative Bank
The Waldoboro Bank
Canadaiqua National Bank
First National of Ipswich
Claremont Savings Bank
American Bank of Lehigh Valley
First National of Suffield
South Valley State Bank
Albion Savings & Loan
Fairport Savings & Loan
Savings Bank of Utica
Savings Bank of Manchester
Savings Bank of The Finger Lakes
Middlesboro Federal Bank, FSB
26
EXHIBIT B
FORM OF END-USER LICENSE
THIS LICENSE ("License") is by and between Banking Spectrum, Inc., with
an office at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Banking Spectrum")
and __________________ a _____________________ corporation with an office at____
______________________________________,_________________________________________
("You or "Your").
A. LICENSE
--------------------------------------------------------------------------------
In consideration of the payment of the license fee stated in associated
documentation, You receive an unrestricted and nonexclusive License to use "The
Electronic Gold Book" for Your own internal business purposes, but not for
resale, relicensing, or other redistribution, subject to the terms and
conditions in this License. No terms, conditions or stipulations written on a
purchase order or similar document issued by You will affect these License
terms. The copyright and all other right, title and interest in The Electronic
Gold Book shall at all times remain with Banking Spectrum.
B. PERMITTED USES
--------------------------------------------------------------------------------
YOU MAY:
- Use The Electronic Gold Book on single workstations up to the number of
licenses purchased for that purpose or on a Local Area Network ("LAN")
server pursuant to payment of the applicable network fee. Separate fees
apply if You wish to install The Electronic Gold Book on more than one
network server.
- Make one additional copy of The Electronic Gold Book in machine
readable form for backup purposes only.
- Install the periodic updates (supplements) to The Electronic Gold Book
as provided by Banking Spectrum pursuant to payment of the appropriate
annual maintenance fee.
YOU MAY NOT:
- Transfer Your rights to use The Electronic Gold Book to a third party
without the express written permission of Banking Spectrum.
- Sublease, lease, sell, distribute, rent, permit concurrent use of, or
grant other rights in The Electronic Gold Book or its contents.
- Make copies of The Electronic Gold Book or any part of its contents,
whether printed or in electronic format, or of any materials provided
except as permitted above.
27
- Translate, reverse engineer, decompile or disassemble any part of The
Electronic Gold Book.
- Modify, adapt or create derivative works based on any part of the
Electronic Gold Book.
C. DISCLAIMERS AND LIMITATIONS OF LIABILITY
--------------------------------------------------------------------------------
The Electronic Gold Book is a publication provided in electronic means. As such:
This publication is designed to provide accurate and
authoritative information in regard to the subject matter
covered. It is sold with the understanding that the publisher
is not engaged in rendering legal, accounting or other
professional service. If legal advice or other expert
assistance is required, the services of a competent
professional person should be sought. -- From a Declaration of
Principles jointly adopted by a Committee of the American Bar
Association and a Committee of Publishers and Associations.
EXCEPT AS OTHERWISE PROVIDED HEREIN, BANKING SPECTRUM DISCLAIMS ALL WARRANTIES
AS TO THE ELECTRONIC GOLD BOOK, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, OR (ii) ANY WARRANTIES OF FUNCTIONALITY, COMPLIANCE WITH
FEDERAL, STATE OR LOCAL LAWS AND REGULATIONS, OR DATA INTEGRITY OR PROTECTION.
THE WARRANTIES SET FORTH BELOW ARE IN LIEU OF ALL OTHER WARRANTIES.
For a period of thirty (30) days from the date of purchase, Banking Spectrum
solely warrants that:
- The media on which Banking Spectrum has supplied The Electronic Gold
Book is not defective and The Electronic Gold Book is properly recorded
on such media.
- The Electronic Gold Book functions substantially as described in this
documentation.
Your sole remedy under this limited warranty is to return any defective media
for replacement within the 30-day warranty period. If the defect persists
following the replacement, You shall be entitled to a full refund of the license
fees provided that You return to Banking Spectrum all copies of The Electronic
Gold Book and accompanying materials.
BANKING SPECTRUM SHALL NOT BE LIABLE TO YOU OR ANY OTHER PARTY
FOR ANY LOSS-OF-PROFIT, LOSS OF DATA, INDIRECT, INCIDENTAL, SPECIAL
28
OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE USE OF THE ELECTRONIC
GOLD BOOK.
D. TERM
--------------------------------------------------------------------------------
The license granted under this License shall remain in effect until terminated
or expired. To receive updates (supplements) to The Electronic Gold Book, You
must pay the applicable annual maintenance fee.
E. MISCELLANEOUS
--------------------------------------------------------------------------------
You understand and agree that The Gold Book is being provided by Banking
Spectrum via this License in lieu of, and in satisfaction of, an obligation of
Open Solutions Inc., if any, to provide The Electronic Gold Book to You under an
existing contract with You.
The provisions herein constitute the entire agreement between the parties with
respect to the subject matter hereof and supersede all prior agreements, oral or
written, and all other communications relating to the subject matter hereof. No
amendment or modification of any provision of this License shall be effective
unless set forth in a document that purports to amend this License and is
executed by both parties hereto.
IN WITNESS WHEREOF, the duly authorized representatives of parties have caused
this License to be executed in duplicate copies, effective as of the Effective
Date.
BANKING SPECTRUM, INC.
By:
____________________________
Name:
____________________________
(Print)
Title:
____________________________
Date:
____________________________
___________________________________
By:
____________________________
Name:
____________________________
(Print)
Title:
____________________________
Date:
____________________________
29
EXHIBIT C
DESCRIPTION OF THE GOLD BOOK
The Gold Book's text incorporates current statutes, regulations and
court decisions and offers a compilation of the most efficient practices and
policies of banks. It is a functional guide to daily banking operations that is
organized to facilitate quick and easy reference, and the content also embraces
the needs of the depositor from a public relations standpoint.
30
EXHIBIT D
PRODUCT RETURNS FORM
End-User's name: ____________________
Date of acquisition: _______________________
Product name: ________________________
Reason for return by End-User:
_____ License terms unacceptable (unopened packages only)
_____ Product will not operate on designated hardware and operating system
configuration
_____ Media defective
_____ Documentation defective in that (specify defect)__________________________
__________________________________________________________________________
_____ Product defective in that (specify failure to conform to specifications)
__________________________________________________________________________
_____ Other (specify): _________________________________________________________
Return accounted by: __________________________
Date: ___________________
