EXHIBIT 10.5
AMENDMENT NO. 1
TO
LOAN AND LICENSE AGREEMENT
THIS EXHIBIT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. THE
CONFIDENTIAL INFORMATION HAS BEEN SO OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. IN PLACE OF SUCH OMITTED CONFIDENTIAL
INFORMATION, "****" HAS BEEN INSERTED.
This AMENDMENT NO. 1 TO LOAN AND LICENSE AGREEMENT ("Amendment") is made
and entered into this 8th day of May, 2002, by and between FISERV, INC.
("Fiserv"), a Wisconsin corporation, for and on behalf of itself and all of the
other Fiserv Companies as defined in the Loan and License Agreement dated May 9,
1997 (the "Original Agreement"), INFORMATION TECHNOLOGY, INC. ("ITI"), a
Nebraska corporation, and XXXXXX SOFTWARE, INC. ("Hyland"), an Ohio corporation.
RECITALS
A. The parties entered into the Original Agreement pursuant to the
terms of which Hyland has licensed to Fiserv, ITI and the other Fiserv Companies
(as defined in the Original Agreement) the Licensed Check Products (as defined
in the Original Agreement) with remarketing and sub-licensing rights.
B. The Original Agreement also contained certain amendments to the
Marketing Agreement dated January 18, 1994 between Hyland and ITI, as amended
(the "Original Marketing Agreement").
C. The parties now desire to amend the Original Agreement in accordance
with the requirements of Section 10.6 thereof.
NOW, THEREFORE, the parties hereby agree as follows:
1. CAPITALIZED TERMS USED IN THIS AMENDMENT AND NOT OTHERWISE DEFINED HEREIN
ARE USED HEREIN WITH THE MEANINGS ASCRIBED TO SUCH TERMS IN THE ORIGINAL
AGREEMENT.
2. SECTIONS 1, 2, 3, 6, 9.4 AND THE LAST PARAGRAPH OF 5.1 OF THE ORIGINAL
AGREEMENT ARE HEREBY DELETED IN THEIR ENTIRETY.
3. A NEW SECTION 4.8 SHALL BE ADDED TO THE ORIGINAL AGREEMENT THAT SHALL READ
IN ITS ENTIRETY AS FOLLOWS:
4.8 Licensees hereby grant to Hyland, as a master distributor
(reseller), the right to market and grant sub-licenses to financial institutions
located outside of the United States of the Licensed Check Products with the
right to retain brokers or sub-distributors (sub-resellers) notwithstanding the
provisions of Section 4.2.2 or any other provisions to the contrary. Except as
modified by the provisos below, the terms and conditions of this remarketing
relationship shall be substantially the same as the terms and conditions of the
Marketing Agreement, as amended, with the parties substituted appropriately, and
such unmodified terms and conditions are hereby incorporated into this Agreement
by this reference for these limited purposes; provided, that Licensees shall
make no warranties to Hyland with respect to the Licensed Check Products;
provided, further, that Hyland shall directly provide maintenance and support
for any customers that license the Licensed Check Products from Hyland under
this distribution relationship and Licensees shall have no obligation to provide
any maintenance and support services to any of such customers; provided,
further, that Hyland shall have the right to further distribute to such
Confidential Treatment Requested
customers any and all upgrades and enhancements of the Licensed Check Products
developed during the term of this distribution relationship; provided, further,
that Hyland shall be entitled to a discount of **** off of Licensees' published
list prices for the Licensed Check Products for all copies of the Licensed Check
Products sublicensed by Hyland hereunder; and provided, further, that Hyland
shall pay an additional fee per annum to Licensees in an amount equal to **** of
Licensees' list price Hyland actually receives from the involved customer for
each calendar year that Hyland provides maintenance and support services for the
Licensed Check Products to the involved customer.
4. SECTION 5.1 OF THE ORIGINAL AGREEMENT IS RENUMBERED AS SECTION 5.1A AND A
NEW SECTION 5.1B IS ADDED TO THE ORIGINAL AGREEMENT THAT SHALL READ IN ITS
ENTIRETY AS FOLLOWS:
5.1B Continuation of Maintenance and Support. From and after the last day
of the 5-year period covered by Section 5.1A, Hyland shall continue to provide
all reasonably required maintenance and support services for the Licensed Check
Products to the Licensees for an additional term of five (5) years. Such
maintenance and support services shall be provided under the following terms and
conditions:
(a) Hyland shall not be responsible to provide any direct
technical support or other services to Licensees' remarketers, dealers or
customers.
(b) Such support and maintenance services shall in any event be
available by telephone during the hours of 8:00 a.m. to 8:00 p.m., Eastern time,
Monday through Friday, excluding holidays, and shall consist of at least the
following:
(1) the terms of Sections 5.1.1, 5.1.2, 5.1.3, 5.1.5, 5.1.6
and 5.1.7 of Section 5.1A are incorporated into this Section 5.1B by this
reference as if fully rewritten herein (reference therein to 5.1.4 being
construed instead as a reference to Section 5.1B (b)(2), as set forth below);
and
(2) THE PROVISIONS OF SECTION 5.1.4 ARE EXPRESSLY NOT
INCORPORATED INTO THIS SECTION 5.1B BUT INSTEAD ARE REPLACED IN THEIR ENTIRETY
BY THE FOLLOWING:
Customized development services, including customer features, customer API
extensions and API integration support, subject to the following:
(A) all of such customized development services shall
be provided on a time and materials basis upon such pricing and payment terms as
the parties shall mutually agree upon in connection with each requested
engagement;
(B) the Fiserv Companies shall submit purchase orders
to Hyland for all requested customer development services; and Hyland shall not
be obligated to commence the provision of any such services until a purchase
order has been submitted hereunder and the parties have mutually agreed upon the
terms of the requested engagement under paragraph (A);
(C) any unused customer development hours offered by
Hyland under Section 5.1.4 of Section 5.1A shall carry forward for a period of
up to twelve (12) months under this Section 5.1B and any services that Hyland
performs under this Section 5.1B(b)(2)
-2-
Confidential Treatment Requested
during such 12-month period shall be first applied to such unused hours until
such time as all such unused hours have been used or such 12-month period has
expired; provided that any remaining unused hours at the end of such 12-month
period shall be waived by Licensees and shall not be carried forward thereafter
for any purposes; and
(D) Hyland shall assign senior programmers familiar
with the structure, sequence, and source code for the Licensed Check Products to
provide the services itemized in this Section 5.1B(b)(2).
(c) On May 9, 2002, and thereafter annually on each May 9 during
the term of this Agreement, Fiserv shall make a non-refundable payment to Hyland
of **** per year for each of the five (5) years of obligated support and
maintenance services hereunder other than customized development services under
Section 5.1B(b)(2) above. Any other provision of this Section 5.1B(c)
notwithstanding, in the event Fiserv gains those additional rights to the use of
the source code pursuant to Section 8.6 hereof, Fiserv may, at its option,
discontinue payment to Hyland of the annual payments required under this Section
5.1B(c) for ongoing support, in which event Hyland shall no longer be required
to provide such support.
(d) At the end of the five (5) year term of obligated support and
maintenance services hereunder, Hyland and Fiserv may renegotiate in good faith
the terms of ongoing development, support and maintenance relating to the
Licensed Check Products.
5. ALL REFERENCES IN THE ORIGINAL AGREEMENT TO SECTION 5.1, AND CONTAINED IN
ANY PROVISIONS OTHER THAN SECTION 5.1, SHALL BE DEEMED FOR ALL PURPOSES TO REFER
TO BOTH OF SECTIONS 5.1A AND 5.1B.
6. SECTION 5.2 IS AMENDED BY ADDING THE FOLLOWING AT THE END THEREOF:
The Fiserv Companies shall pay for all training services provided hereunder in
accordance with Xxxxxx'x training fee schedule in effect from time to time and
applicable to its dealers and end users generally. Hyland shall have the right
to change the training fee schedule in effect hereunder whenever it changes its
training fee schedule for its dealers and end users generally, effective upon
not less than ninety (90) days advance written notice to ITI (it being the
responsibility of ITI to notify the other Fiserv Companies) of such change,
which notice shall be accompanied by Xxxxxx'x new training fee schedule.
7. SECTION 10.6 IS AMENDED BY DELETING THE WORD "HEREIN" IN THE SECOND
SENTENCE AND BY SUBSTITUTING THE WORDS "ALL (WHICH, IN THE CASE OF THE FISERV
COMPANIES, SHALL MEAN AND REFER TO ITI AND FISERV, FOR ITSELF AND FOR ALL OF THE
OTHER FISERV COMPANIES)" FOR THE WORD "BOTH" IN THE LAST SENTENCE THEREOF.
8. IN ALL OTHER RESPECTS, THE ORIGINAL AGREEMENT REMAINS IN FULL FORCE AND
EFFECT.
-3-
Confidential Treatment Requested
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by their duly authorized representatives as of the date first written above.
FISERV, INC. (for itself and the XXXXXX SOFTWARE, INC.
"Fiserv Companies" other than ITI)
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxxxxxxxx
--------------------------- ----------------------------------
Name : Xxxxxx X. Xxxxxx Name: Xxxxxx Xxxxxxxxxxx
Title Chairman Title : Exec. V.P.
INFORMATION TECHNOLOGY, INC.
By: /s/ Xxxxxxx Xxxxx
---------------------------
Name : Xxxxxxx Xxxxx
Title: President
-4-
