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EXHBIT 10.27
CONFIDENTIAL TREATMENT REQUESTED
SECOND AMENDMENT TO THE
SOFTWARE LICENSE AGREEMENT
BETWEEN
XXXXXX XXXXXXXXXXX
AND
PHOENIX INTERNATIONAL LTD., INC.
This Second Amendment to the Software License Agreement (this
"Amendment") is entered into as of June 30, 1997 (the "Effective Date") by and
between Xxxxxx Xxxxxxxxxxx ("Unisys"), with offices at 0000 Xxxxxxxx Xxxx Xxxx,
Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000; and Phoenix International Ltd., Inc.
("Phoenix"), with offices at 000 Xxxxxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx
00000.
WITNESSETH THAT:
WHEREAS, Phoenix and Unisys entered into that certain Software License
Agreement executed on March 16, 1996, as amended on December 27, 1996 (the
"License Agreement"); and
WHEREAS, the parties wish to amend the terms of the License Agreement
as more particularly set forth herein (the License Agreement, as amended by
this Amendment, being hereinafter referred to as the "Agreement");
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto, intending to be legally bound by the provisions
hereof, hereby agree as follows:
I. A new Section 2.4 shall be added to the Agreement as follows:
2.4 The right and license granted to Unisys pursuant to Section 2.1 of the
Agreement, subject to Sections 2.2 and 2.3 of the Agreement, shall
hereafter extend to the following new products which are complementary
to the Package: the Phoenix ATM Module (the "ATM Module") and the
Phoenix TradeFinance Module (the "TradeFinance Module"; collectively,
the "New Products"), including related technical and operating
documentation. The right and license granted to Unisys with respect to
the New Products shall be non-exclusive (and not exclusive) and shall
apply in the Territory, The Republic of South Africa, and the
Asia-Pacific region as mutually understood by the parties. References
in the Agreement to "Territory" shall be construed to include such
additional territories, but with respect to the New Products only.
Except as otherwise provided in this Amendment (including the
foregoing clarifications), references to the "Package" and related
"Documentation" in the Agreement shall be construed to include the New
Products.
II. A new Section 6.11 shall be added to the Agreement as follows:
1) In consideration for the right and license granted in Section 2.4
above with respect to the TradeFinance Module, Unisys shall pay
Phoenix an initial royalty fee of ***. Such amount shall be fully
earned and non-refundable upon execution of this Amendment and shall
be due and payable as provided in Schedule A to this Amendment.
Delivery by Phoenix of the TradeFinance Module shall occur on June 30,
1997. Such amount shall be credited toward (a) *** of all
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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amounts otherwise due under paragraph (2) of this Section 6.11 up to a
maximum of *** per sublicense of the TradeFinance Module.
2) For each sublicense hereafter granted by Unisys to each End User
with respect to the TradeFinance Module, Unisys shall pay Phoenix ***
for the TradeFinance Module which shall be *** in base license fees
plus *** per workstation greater than *** operating the TradeFinance
Module for such End User. A workstation is intended to mean an access
device such as a operating terminal or similar I/O unit that accesses
the TradeFinance Module for productive use.
3) Phoenix and Unisys shall split *** all maintenance fees for the
TradeFinance Module, subject to Phoenix receiving a minimum of *** in
annual maintenance fees per End User licensed to use the TradeFinance
Module, and a minimum of *** in annual maintenance fees for each
workstation operating the TradeFinance Module in excess of *** for
any given End User.
III. A new Section 6.12 shall be added to the Agreement as follows:
1) In consideration for the right and license granted in Section 2.4
above with respect to the ATM Module, Unisys shall pay Phoenix an
initial royalty fee of ***. Such amount shall be fully earned and
non-refundable upon execution of this Amendment and shall be due and
payable as provided in Schedule A to this Amendment. Delivery by
Phoenix of the ATM Module shall occur on June 30, 1997. Such amount
shall be credited toward *** of all amounts otherwise due under
paragraph (2) of this Section 6.12, up to a maximum of *** per
sublicense of the ATM Module.
2) For each sublicense hereafter granted by Unisys to each End User
with respect to the ATM Module, Unisys shall pay Phoenix *** for the
ATM Module which shall be deemed to be *** in base license fees plus
*** per switch interface greater than *** employing the ATM Module
for such End User. A switch interface is intended to mean each
communications interface to each switch network, separately counted
for VISA, MasterCard, CIRRUS, etc.
3) Phoenix and Unisys shall split *** all maintenance fees for the
TradeFinance Module, subject to Phoenix receiving a minimum of *** in
annual maintenance fees per End User licensed to use the ATM Module,
and a minimum of *** in annual maintenance fees for each switch
interface operating the ATM Module in excess of *** for any given End
User.
IV. A new Section 6.13 shall be added to the Agreement as follows:
Phoenix will receive *** of the base license fees for the ***
sublicenses entered into by Unisys with respect to the Package (not
including the New Products). (Such arrangement has no effect on the
fees due Phoenix for New Products and other matters, including,
without limitation, branch fees, workstation fees, or switch interface
fees.)
V. A new Section 8.6 shall be added to the Agreement as follows:
Phoenix and Unisys anticipate that (1) Changes may be created by
Unisys for distribution solely within the Territory comprising
translations, localizations, and customization designed for End
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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Users in connection with their sublicense of the Package and the New
Products ("Localization Changes"), and (2) Unisys may develop yet
other software products for use by End Users within the Territory in
conjunction with the Package and the New Products, such as additional
new modules, plug-ins, and objects ("Further Products"). The
Localization Changes and the Further Products are intended to include
only that work which is *** and which is not ***. Such
Localization Changes and Further Products are together referred to as
"Unisys Works."
To the extent that the Unisys Works are based on, derive from, include
in whole or in part, or require use of the Package, the new Products,
or any other intellectual property rights of Phoenix (the "Underlying
Interests"), *** the Underlying Interests shall accordingly depend on
other provisions of this Agreement or other agreements reached between
the parties with respect thereto, and *** Underlying Interests by
virtue of ***.
Subject to the foregoing, Xxxxxxx agrees that *** associated
therewith. Phoenix shall not, by virtue of ***, be construed to have
any obligation to market, support, or refrain from ***. Unisys agrees
to deliver to Phoenix copies of all of the Unisys Works periodically.
Upon Phoenix's request, Unisys shall *** upon terms and conditions
mutually acceptable to both Phoenix and Unisys, but in any event ***
than the *** upon which Phoenix has licensed the Package to Unisys
hereunder, including *** terms.
For the foregoing ***, Unisys shall pay Phoenix the sum of *** in
accordance with Schedule A to this Amendment. Such amount shall be
considered fully earned and non-refundable upon execution of this
Agreement.
This Section 8.6 shall constitute a limited exception to the terms of
Section 8.5 above.
VI. Section 9.1 shall be replaced in its entirety with the following:
Training and technical assistance will be provided by Xxxxxxx to
Unisys on a basis to be mutually determined. Such training and
technical assistance will be in the form of a combination of formal
classroom training and on-the-job training during actual
implementation of sublicensed End Users.
Training objectives are described in Addendum F hereto.
VII. Section 9.7 shall be replaced in its entirety with the following:
Except for the assignment of *** (or replacement personnel) as
provided in Section 9.4 hereof, it is acknowledged that Phoenix shall
not be required to travel to the Territory except when Xxxxxxx agrees
to do so. Travel and living expenses for *** and any other on-site
assistance shall be paid or (in the case of End User reimbursement)
provided for by Unisys in accordance with Addendum H.
VIII. Section I.1.C. of Addendum B shall be replaced in its entirety with
the following:
C. Adjustments
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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Unisys may, if it so desires, authorize its country managers (or
equivalent) to *** the foregoing base fees on a case-by-case basis by
*** (as calculated and determined by type of fee by individual End
User). With that sole exception, and unless otherwise agreed in
writing by Phoenix, if the Gross Proceeds from license fees or branch
fees (or, in the case of the New Products, workstation fees or switch
interface fees) due from an End User are less than the amounts set
forth by applying the appropriate rates in accordance with Section A
or B above, then Phoenix shall receive at a minimum an amount equal to
*** based on the above minimum license and branch fees (and, in the
case of the New Products, workstation fees and switch interface fees),
as determined on a per sublicense basis for each category of fees. If
the Gross Proceeds from base license fees and branch fees (and, in the
case of New Products, workstation fees and switch interface fees) due
from an End User exceed the amounts set forth by applying the
appropriate rates in accordance with Section A or B above, then Unisys
shall be entitled to keep ***.
IX. The second, third, and fourth paragraphs of Part II of Addendum B
shall be replaced in their entirety with the following:
*** from support and/or maintenance fees due from all End
Users in connection with the sublicense of the Package.
X. Section III. of Addendum B shall be deleted in its entirety.
XI. Section IV.3 of Addendum B shall be replaced in its entirety with the
following:
Implementation Assistance
- Project Manager $ ***(2) $***(2)
- Other $ ***(2) $***(2)
XII. A new Addendum H shall be added to the Agreement as set forth in
Schedule B.
XIII. If Unisys fails, after using its good faith efforts, to enter into
sublicenses for the ATM Module and the TradeFinance Module sufficient
for Unisys to apply (toward satisfaction of minimum or actual amounts due
Phoenix hereunder which are eligible for the applicable credit(s) as provided
above) the credits provided in Sections 6.11(1) above [***] and Section
6.12(1) above [***] within *** from the Effective Date herein, and only after
Unisys has completely applied all other credits to which it is entitled under
Section 6.1 of the Agreement, Unisys shall be entitled to apply its remaining
credit(s) under this Amendment toward *** otherwise due Phoenix for the
Package under the Agreement (but no more than *** in aggregate base and branch
license fees per sublicense of an End User).
XIV. Capitalized terms used herein and not otherwise defined shall have the
meaning provided in the License Agreement. Except as expressly provided
otherwise in this Amendment, the provisions of the License Agreement shall
remain in full force and effect.
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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IN WITNESS WHEREOF, this Amendment has been duly executed by the parties
hereto, as of the Effective Date shown above.
Phoenix International Ltd., Inc. Xxxxxx Xxxxxxxxxxx
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxx X. Xxxxxx
------------------------------ -------------------------------
Xxxxx Xxxxxxxx Xxxx X. Xxxxxx
--------------------------------- ----------------------------------
Print Name Print Name
President President
--------------------------------- ----------------------------------
Print Title Print title
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Schedule A
September 1, 1997 $***
January 1, 1998 $***
May 1, 1998 $***
August 1, 1998 $***
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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Schedule B
SOFTWARE LICENSE AGREEMENT
ADDENDUM H
TRAVEL POLICY
LODGING: Accommodations shall be selected in accordance with the hotels and
the corresponding rates indicated in the Unisys Hotel Directory,
whenever possible.
The itemized hotel bill must be submitted as a receipt.
MEALS: The cost of all meals will be reimbursed on an actual/reasonable
basis, except meals provided free of charge on airlines, at hotels,
at Unisys facilities, at Unisys sponsored meetings, etc. Meals
provided free of charge shall be itemized as such. Any meal cost of
*** or greater must be supported with a charge card or otherwise
valid receipt.
CAR RENTAL: The rental of an automobile at a rate in excess of major
rental agency rates for standard automobiles is prohibited. The
itemized car rental agreement form must be submitted as a receipt.
TRAVEL: All personnel must travel *** for air and rail travel. Unisys
authorized travel of personnel by private auto shall be compensated
at the rate of *** per mile, plus tolls and parking fees. The
ticket form for air or rail travel must be submitted as a receipt.
The above information is provided as a guideline and shall be adhered to
whenever possible. However, all reasonable, actual expenses incurred which are
submitted and supported by appropriate receipts (any expense of *** or greater
must be supported with a charge card or otherwise valid receipt) shall be
reimbursed.
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
