Exhibit 10.9
Confidential Treatment
Confidential Portions omitted and filed separately with
the Securities and Exchange Commission. Asterisks denote omissions.
SOFTWARE LICENSE AND MARKETING AND DISTRIBUTION AGREEMENT
This Software License and Marketing and Distribution Agreement (the "Agreement")
is entered into as of August 20, 1997 (the "Effective Date") by and between
BISYS, Inc. ("BISYS"), a Delaware corporation with its principal place of
business at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, and Open Solutions Inc.
("OSI"), a Delaware corporation with its principal place of business at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
RECITALS
A. BISYS, through its TOTALPLUS(R) Division, is a leading provider of
comprehensive data processing outsourcing solutions to financial institutions.
B. OSI is the developer and owner of The Complete Banking Solution(TM) system
and is a leading supplier of client/server software and information services to
financial institutions.
C. The parties wish to establish an alliance whereby (i) BISYS will be the
exclusive national Outsourcing Services provider and exclusive national
Facilities Manager of The Complete Banking Solution system to Financial
Institutions in the United States; (ii) OSI will license to BISYS the OSI
Proprietary and OSI Interface Software used in connection with such system;
(iii) the parties will engage in certain marketing and selling activities; and
(iv) BISYS will be a recommended preferred provider of certain related services.
Now, therefore, in consideration of the mutual obligations set forth herein, the
parties agree as follows.
1. DEFINITIONS
1.0 Change of Control - shall mean with respect to a particular entity (i) the
consummation of a merger or consolidation of that entity with another in which
the owners of interests (shares or otherwise) of the particular entity
immediately prior to the consummation of such transaction do not own at least
65% of the ownership interests of the surviving successor, acquiring or assuming
entity; (ii) the sale of all or substantially all the assets of such entity; or
(iii) the acquisition of beneficial ownership by any person (including a group
within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of
1934, as amended) of 35% or more of the outstanding ownership interests of such
entity. For the purposes of this agreement an initial public offering of OSI
shall not be deemed a change in control.
1.1 Conversion - shall mean the process of converting a new Customer's data to
the System.
1.2 Conversion Date - shall mean the date on which live production begins.
Live production shall mean the time when Customer uses the System or
portions thereof to execute transactions, produce reports or retrieve
information from the OSI Database Model on a regular basis in a production
non-test environment.
1.3 Customer - shall mean that Financial Institution for which BISYS
contractually provides either data processing Outsourcing Services using
the System or acts as Facilities Manager of the System. BISYS shall
provide a form copy of the BISYS Customer contract for Outsourcing or
Facilities Management to OSI prior to entering into the first Customer
contract.
1.4 Documentation - shall mean all user manuals, system guides and related
publications for the OSI Proprietary Software and OSI Interface Software.
1.5 Enhancements - shall mean all upgrades, improvements, modifications and
updates to the OSI Proprietary Software and OSI Interface Software made
available to OSI customers.
1.6 Excluded Licensees - shall mean the Named Competitors and any outsourcing
service providers shown on Schedule 1.6 hereto, which may be amended from
time to time by BISYS with the written consent of OSI, which shall not be
unreasonably withheld.
1.7 Facilities Manager; Facilities Management - shall mean the provider and
operator of the System for the benefit of a Financial Institution on site
at the Financial Institution's facilities; the activity of so providing
and operating the System.
1.8 Financial Institution - shall mean all classes of banks, including those
chartered under state or federal law, commercial banks, savings banks,
mutual savings banks, thrift institutions, savings and loan associations
and credit unions, and branches thereof.
1.9 Interface Software- shall mean that software, other than the OSI Interface
Software, used to interface between and among the various application
software included in the System and between and among peripherals for use
in connection with the System.
1.10 License - shall mean the restricted non-transferable, non-assignable right
to BISYS hereunder to use the OSI Proprietary Software and OSI Interface
Software within its own data processing facilities as an Outsourcing
Services Provider, and at the Customer's facilities as Facilities Manager,
to provide data processing services to its Customers during the term of
this Agreement. The license will be for use on the Designated Hardware and
Operating Systems as defined in Schedule 17(g), as amended from time to
time.
1.11 Named Competitors - Named competitors of BISYS shall mean Fiserv, EDS, M&I
Data Services, NCR, ▇▇▇▇ ▇▇▇▇▇, and ALLTEL/Systematics and successors
thereto, and other competitors named in Schedule 1.6 Named competitors of
OSI shall mean Phoenix International, Prologic, DCI, M&I Eastpoint, ITI
Premier 11 and NCR Autobank and others as may be amended from time to
time.
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1.12 License Fee - shall mean the list price of the OSI Proprietary Software
and OS Interface Software based on the price lists initially shown on the
attached Schedule 1.12 for a similarly situated Financial Institution,
except where OSI routinely discounts such list price in which case License
Fee shall mean such discounted list price. OSI shall have the right to
modify such License Fees annually at the beginning of each calendar year.
1.13 Master Copy - shall mean the object code form copy of the OSI Proprietary
Software and OSI Interface Software and the data base code for the OSI
Database Model to be delivered upon execution of this Agreement and
thereafter from time to time as such code is enhanced and revised by OSI
to reflect the most current versions made available by OSI for use with
the System.
1.14 OSI Database Model - shall mean the database code and resulting database
model developed by OSI and included in the System.
1.15 OSI Proprietary Software - means collectively, the version(s) of software
as set forth in object code format, and database code format with respect
to the OSI Database Model, together with the Documentation to be provided
to BISYS by OSI, for use in connection with the System, including
Enhancements to such software, database code and Documentation that may be
provided by OSI to BISYS from time to time. As listed in Schedule 1.15.
1.16 OSI Interface Software- shall mean that software developed and owned by
OSI, or licensed to OSI, used to interface between and among various
application software and between and among peripherals for use in
connection with the
System, initially identified on Schedule 1.16 hereto, as may be amended
from time to time by OSI by written notice to BISYS.
1.17 OSI Source Code - shall mean the source code in machine readable form for
the OSI Proprietary Software and the OSI Interface Software owned by OSI.
1.18 Outsourcing Services - shall mean the outsourcing by Financial
Institutions of data processing and other information processing services
from a third party that provides such services remotely from its data
center facilities.
1.19 System - shall mean OSI's The Complete Banking Solution client server,
Oracle relational data base, Microsoft Windows NT environment system
including the applicable OSI Proprietary Software, OSI Interface Software,
OSI Database Model and required Third Party Software (TPS), as it may
exist from time to time during the term of this Agreement for use on the
Designated Hardware and Operating Systems as defined in Schedule 17(g), as
amended from time to time. OSI shall provide a new Schedule 17(g) to BISYS
to reflect the authorized Designated Hardware and Operating Systems as in
effect from time to time.
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1.20 Third Party Software (TPS) - shall mean the software developed and owned
by an entity or person other than OSI used, or available for use, in
connection with the System, as initially shown on Schedule 1.19.
2. GRANT AND ACCEPTANCE OF SOFTWARE AND TRADEMARK LICENSE.
(a) Subject to the terms and conditions of this Agreement, OSI hereby grants
to BISYS and BISYS hereby accepts from OSI the License and the concurrent right
to copy and market the System during the term of this Agreement as the exclusive
national Outsourcing provider and exclusive national Facilities Manager of the
System to Financial Institutions in the United States, unmodified from the
version(s) provided by OSI from time to time, in object code form only. BISYS is
prohibited from sub-licensing any of its rights under this Agreement other than
to a direct or indirect wholly owned subsidiary of The BISYS Group, Inc., the
ultimate parent company of BISYS Title to and ownership of the OSI Proprietary
Software, the OSI Interface Software owned by OSI and the OSI Database Model and
all Enhancements other than specifically provided for in Section 13, shall at
all times remain with OSI.
(b) Subject to the terms and conditions of this Agreement, OSI hereby grants
to BISYS and BISYS hereby accepts from OSI a non-exclusive and non-transferable
right
to use the OSI trade names "OSI" or "Open Solutions Inc." and The Complete
Banking Solution trademark during the term of this Agreement for the sole
purpose of the promotion and marketing of the System. BISYS agrees to reproduce
OSI's trademarks and proprietary rights notices as necessary and appropriate on
the products and services provided by BISYS to the Customer that contain any OSI
trade secrets, trademarks or copyrights. Any and all OSI trademarks and trade
names which BISYS uses in connection with the rights granted hereunder are and
remain the exclusive property of OSI. Nothing herein shall prohibit or otherwise
limit BISYS from promoting and marketing the System as a product offered by its
TOTALPLUS(R) Division.
(c) Within 90 days of the Effective Date, and subject to any confidentiality
limitations, OSI shall deliver to BISYS a schedule (Schedule 2c)and copies of
the documentation set forth on such Schedule 2(c) hereto. OSI represents and
warrants that all agreements granting to OSI a license or other right to use
and/or sub-license the TPS, a schedule of OSI Interface Software, and all other
software or intellectual property included in the System shall be set forth on
Schedule 2(c).
3. DELIVERY OF CODE.
Upon execution of this Agreement, OSI shall deliver to BISYS a Master Copy of
the OSI Proprietary Software and OSI Interface Software in object code form, and
a Master Copy of the database code for the OSI Database Model, on disk. At all
times during the term of this Agreement, OSI shall deliver to BISYS within sixty
(60) days of a general software release to its customers new Master Copies of
the OSI Proprietary Software, OSI Interface Software and OSI Database Model as
designed for use on the Designated Hardware and
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Operating Systems as defined in Schedule 17(g), so that BISYS has available
to it. the most current version of the System, including any and all
Enhancements, offered by OSI to its customers generally or made available by
OSI to its customers generally. As part of the License granted hereunder,
BISYS shall have the right to copy such Master Copy(ies) and Documentation
for use in connection with its Outsourcing Services and Facilities Management
services to Customers and for other purposes contemplated hereunder,
including archival, testing, support backup, disaster recovery, and
demonstration.
4. EXCLUSIVITY.
(a) Subject to the limitations set forth below, BISYS shall have the
exclusive national (i.e., United States and its territories) License to use
the System to provide Outsourcing Services, and exclusive national License to
provide and operate the System as Facilities Manager, to Financial
Institutions. The foregoing notwithstanding, during the term of this
Agreement, OSI may grant and have outstanding licenses (A) to use the System
as an Outsourcing Services provider to up to ten [10] local/regional
providers (not to include BISYS) at any one time, excluding the Excluded
Licensees; provided in each case that such license (i) is limited to a single
local/regional provider, i.e., not a consortium or other arrangement whereby
a number of providers have entered into a joint venture or partnering
arrangement, (and for the first 24 months following the Effective Date for
the states of California, Oregon, Washington, Nevada and Arizona a provider
in existence as of the Effective Date) with (X) annual revenues from its
existing data processing services at the time of such license grant equal to
or less than $20 million (Y) no more than 50 clients, and (Z) the main office
of each of such clients within the same state or adjacent states as such
provider, (ii) limits such license during the first 36 months to use of the
System for such provider's then existing clients plus up to an additional ten
new clients but not more than 50 clients and after such 36-month period to
such additional licenses as mutually agreed between OSI and such provider,
and (iii) contains restrictions limiting the use of such license upon a
Change of Control of such licensee involving a Named Competitor of BISYS to
those Financial Institutions for which the licensee is providing Outsourcing
Services as of the date of the Change of Control; and (B) to use the System
as an Outsourcing provider solely to credit unions to up to an additional ten
[10] local/regional providers (not to include BISYS) at any one time,
excluding the Excluded Licensees, provided in each case that such license (i)
is limited to a single local/regional provider, i.e., not a consortium or
other arrangement whereby a number of providers have entered into a joint
venture or partnering arrangement, with annual revenues from its existing
data processing services at the time of such license grant equal to or less
than $20 million, and (ii) contains restrictions limiting the use of such
license upon a Change of Control of such licensee involving a Named
Competitor of BISYS to those credit unions for which the licensee is
providing Outsourcing Services as of the date of the Change of Control (such
providers, individually, a "Permitted Licensee" and, collectively, the
"Permitted Licensees"). The provisions of the immediately preceding sentences
shall terminate
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in the event that BISYS fails to reaffirm the Agreement within 180 days of a
Change of Control of BISYS. A breach of the terms of this subparagraph (a) by
OSI shall be deemed a material breach under the Agreement, subject to
provision for cure as provided in Section 21(b). OSI shall have the option to
convert the rights granted herein to nonexclusive in the event BISYS is
unable to achieve the following milestones for the periods indicated (or
cumulatively with prior periods) by written notice within 45 days of the end
of such period:
Year 1 Year 2 Year 3 Year 4 Year 5
Financial Institutions entering [**] [**] [**] [**] [**]
into New Outsourcing
Services or Facilities
Management Agreements with
BISYS
Conversions [**] [**] [**] - -
Minimum Required License & [**] [**] [**] - -
Maintenance Fees pursuant to
Sections 8(a) and (b)
Provided BISYS has satisfied the milestones for years 1 through 3 and that OSI
has satisfied its obligations pursuant to sections 7, 9, 10 and 11 hereof, then
BISYS agrees that the number of conversions for Year 4 and Year 5 shall be 22
and 25, respectively, and further agrees to a Minimum Required License &
Maintenance Fees pursuant to Sections 8(a) and (b) for Years 4 and 5 at amounts
to be mutually agreed that represent the retail sales rates and corresponding
fees of OSI in effect at such time. It is the intent of the parties to evaluate
the terms of this Agreement at the end of such five-year period, including the
extension thereof. The foregoing notwithstanding, OSI shall not have the right
to convert such rights to nonexclusive where BISYS has (i) entered into new
Outsourcing Services and/or Facilities Management agreements with Financial
Institutions representing at least [**] of the number required above for the
periods indicated and (ii) achieved or prepaid the above required minimum
License and Maintenance Fees within 30 days of the end of each annual period.
Provided OSI is not in breach of its obligations under this Agreement, BISYS
shall pay the minimum required fees for the periods indicated above to OSI
(i.e., a total of [**]) in consideration of the exclusivity agreement. Any
amounts paid by BISYS to OSI to satisfy the foregoing minimum obligations and
not otherwise due pursuant to Sections 8(a) and 8(b) hereof shall be treated as
prepaid License and Maintenance Fees under such Sections and shall be applied as
a credit against future amounts due and owing thereunder.
Confidential portions omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
6
(b) From the date hereof, BISYS shall be the preferred Facilities Manager for
a licensed System installed at a Financial Institution's facilities (i.e., where
the Financial Institution has been granted a license to use the System in-house
at its facilities and elects to seek a Facilities Manager to operate the
System). Notwithstanding the foregoing, no provision in this agreement shall be
construed as prohibiting a Financial Institution licensed to use the System from
independently retaining a Named Competitor or Excluded Licensee to serve as its
Facilities Manager.
(c) OSI represents and warrants as of the Effective Date that it has not
granted any license for use of the System to provide Outsourcing Services or to
serve as Facilities Manager to any entity other than BISYS. Unless specifically
prohibited by contract, OSI will provide written notice to BISYS upon the grant
of any license permitted pursuant to the foregoing subparagraph (a). In
addition, OSI agrees to provide an annual certification from its independent
auditors on or before the date it files such financial statements with the
Securities and Exchange Commission and otherwise the 120th day following the end
of each of its fiscal years, in conjunction with issuance of its annual
financial statements, identifying all license grants made pursuant to
subparagraph (a) in effect as of the end of such fiscal year.
(d) MOST FAVORED CUSTOMER. OSI represents and warrants that all prices,
warranties, benefits and other terms being provided hereunder are equivalent to
or better than the terms being offered by OSI to other similarly situated
entities under similar circumstances. If, during the term of this Agreement,
OSI enters into a licensing agreement with a Permitted Licensee pursuant to and
in accordance with subparagraph (a) hereof providing such entity with more
favorable terms, then this Agreement will be deemed appropriately amended to
provide such terms to BISYS, and OSI shall promptly provide BISYS with any
refunds or credits thereby created; if applicable, calculated from the
affective date of such other agreement(s).
(e) EQUITY INVESTMENT. As a condition of the grant of exclusivity and as a
condition to any license grant by OSI to a Permitted Licensee hereunder, BISYS
and OSI shall complete the documentation necessary for BISYS to make, and BISYS
shall promptly thereupon make, the equity investment in OSI described in
Schedule 4(e) to this Agreement.
(f) REASONABLE COMMERCIAL EFFORTS & NON-COMPETE. BISYS shall use reasonable
commercial efforts in seeking agreements to provide Outsourcing Services and
services as Facilities Manager utilizing the System. Based on OSI's efforts
pursuant to Sections 7, 9, 10 and 11 hereunder, BISYS would expect to convert
an existing T0TALPLUS(TM) system host based client to the System within 12
months of the Effective Date. Successful achievement of this conversion
within the expected time frame is expected to facilitate the development and
refinement of related conversion programs, completion of required development
and the integration into the System of the BISYS provided "wrap-around"
products and services identified in the following Section 5. BISYS agrees to
provide an annual certification from its independent auditors, on or before
such time as it files its
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annual financial statements with the Securities and Exchange Commission,
certifying as to the BISYS Customers that entered into Outsourcing Services
or Facilities Management agreements with BISYS during the prior fiscal year.
BISYS recognizes that it is in the parties' best interest that the reputation
of the System be upheld and, accordingly, it shall make commercially
reasonable efforts to provide quality sales and service to its Customers.
Notwithstanding the above and without limiting BISYS right to provide its
host-based T0TALPLUS(R) system outsourcing solution, BISYS shall utilize OSI
as the exclusive provider of client/server core data processing for BISYS
during the term of this agreement. This includes development of a
client/server core processing system by BISYS or the purchase of another
product from an OSI Named Competitor as identified in Section 1.11. A breach
of the foregoing shall be deemed a material breach under the Agreement. BISYS
shall have the opportunity to cure any such breach upon notice as provided in
Section 21 herein.
5. PREFERRED PROVIDER.
OSI shall include BISYS, and its affiliates, as a recommended preferred provider
to deliver the following additional wrap-around services to OSI direct customers
of the System and as applicable to prospective customers:
(a) ATM/debit card processing.
(b) Imaging services (including check and remittance imaging) through
Document Solutions, Inc., as long as this company is owned by BISYS.
(c) Tele-services (e.g. loan and mortgage information and application
processes via telecommunication [phone/internet]) through BISYS
Creative Solutions, Inc. as long as this company is owned by BISYS.
(d) LAN/WAN services (e.g. design, implementation, consulting, program
services, server, workstation and network monitoring).
Unless inappropriate, OSI marketing and promotional material identifying
wrap-around services shall identify BISYS as a recommended preferred provider of
the foregoing services.
6. SALES AND MARKETING.
(a) TRAINING. OSI shall provide four weeks advance notice of its regularly
scheduled and periodic special internal sales training programs as well as any
other internal training programs for sales and product support, customer
service personnel and systems and software engineers. BISYS shall have the
right to include a reasonable number of its like employees in such training
programs, subject to class-size limitations, on a no-fee basis. BISYS shall be
responsible for the costs of all training materials and other out-of-pocket
costs and expenses directly or indirectly resulting from the participation of
its employees in such training programs as well as all travel and related
costs.
Confidential portions omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
8
(b) TRADE SHOWS. OSI and BISYS shall provide each other with advance notice of
their scheduled participation or intent to participate in a trade show so that
the parties may jointly participate if so desired.
(c) DEMONSTRATION. Upon execution of this Agreement, OSI shall provide to
BISYS a copy of OSI's demonstration program for sales and demonstration purposes
and shall provide BISYS with the most current version of such demonstration
program as it may exist from time to time. Unless inappropriate, OSI
demonstration systems demonstrating "wrap-around" services, as described in
Section 5 hereof, shall demonstrate the "wrap around" services offered by BISYS,
(d) MARKETING MATERIALS. BISYS and OSI shall, promptly following execution of
this Agreement, develop joint marketing material and standard disclosure
relating to each other, the alliance formed hereby and the products and services
to be offered hereunder, that may be used by both parties on an ongoing
unrestricted basis until otherwise agreed. Such material may also include a new
trademark or logo to reflect the alliance. Prior to the development of such
materials, neither party may publish and distribute any materials using the
trade marks or trade names of the other without the prior written consent of the
other, which shall not be unreasonably withheld. OSI will have final approval of
all marketing materials that represent the material functional aspects of the
System. The parties also expect to engage in certain joint sales and marketing
efforts as mutually agreed. Notwithstanding the foregoing, each party reserves
the right to continue to produce non-referencing marketing materials for their
independent use.
(e) SALES SUPPORT. OSI agrees to participate directly in any sales and
marketing presentations to potential Customers and to otherwise be actively
involved in providing sales support to BISYS through the period until BISYS has
entered into Outsourcing Services agreements or Facilities Management services
agreements for its first five Customers. Thereafter, upon BISYS' reasonable
request, and subject to availability OSI shall provide appropriate sales support
to assist BISYS in its efforts to execute additional Outsourcing Services
agreement employing the System with potential Customers. BISYS shall be
responsible for the reasonable out-of-pocket costs incurred by OSI for such
support.
(f) LEAD REGISTRATION AND REFERRAL. Where either BISYS or OSI determines
after a customer sales presentation or other qualification process that the
customer has a legitimate interest in the System being provided in the mode
offered by the other (i.e., in an Outsourcing Services or Facilities
Management mode by an OSI customer prospect or in an in-house mode by a BISYS
customer prospect), such party ("Referring Party") shall provide a written
lead registration and referral notice to the other identifying the potential
customer and contact person. The party receiving the notice shall have the
right to call upon that customer either separately or together with the
Referring Party to close the sale. The parties recognize that they may
continue in competition for such business opportunity. Where the party
receiving the notice (i) has not made a sales presentation to the identified
customer within the six-month period prior to receipt of such notice and (ii)
9
within six months after the notice enters into an agreement with such
customer to provide the System, the Referring Party shall be entitled to the
Referral Fee described in Section 8 hereof.
Other than the lead registration and referral process described in the foregoing
paragraph, neither party shall have an obligation to disclose to the other nor
shall either party be entitled to information relating to the potential
prospects of the other.
(g) NOTICE OF AGREEMENTS WITH CUSTOMERS. BISYS shall provide written notice
of a new Financial Institution client using the System to OSI within 30 days of
the execution of an agreement with such new client.
(h) PRESS RELEASES. The parties expect to issue a mutually agreed upon joint
press release announcing the alliance formed under this Agreement at the
appropriate time. Prior to such public announcement, neither party shall make
any public disclosure of the existence or terms of this Agreement without the
prior written consent of the other.
7. CONVERSION AND PRODUCTION SUPPORT.
OSI shall provide the Conversion, programming, operations and training resources
necessary to convert the first three Outsourcing Services Customers in
cooperation with BISYS who shall retain control of the Customer interface. In
consideration of such support, BISYS shall reimburse OSI at cost for reasonable
expenses it incurs in connection therewith. OSI shall prepare the Conversion
plans and provide a copy to BISYS. BISYS shall participate in the Conversions as
a training mechanism and shall be responsible for all subsequent Conversions. At
BISYS' reasonable request, and subject to availability, OSI shall provide
assistance for subsequent Conversions and related production. BISYS shall pay
OSI for such subsequent support services based on OSI's time and materials [**].
In addition, OSI shall provide the technical and operations support required to
establish a production environment at BISYS' initial Outsourcing Services
production facility for the System. At a minimum, OSI shall provide the support
required to deliver production for the initial Conversion from the date of such
Conversion through the 30 days post-Conversion. BISYS shall reimburse OSI its
reasonable out-of-pocket costs for such initial production support. Thereafter,
upon BISYS' request, OSI shall provide additional production/technical support
following such 30-day period and for additional Conversions, and in
consideration thereof BISYS shall pay OSI its time and materials [**].
8. FEES.
(a) LICENSE FEES:
Confidential portions omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
10
i) OUTSOURCING. Upon successful completion of the Conversion of a Customer
to the System pursuant to an Outsourcing Services agreement, OSI shall be
entitled to a license fee equal to thirty percent (30%) of the OSI License
Fee payable by an OSI direct customer similarly situated as of the effective
date of such Outsourcing Services agreement. Such license fee shall be
payable in equal monthly installments over the initial term of the
Outsourcing Services agreement, not to exceed three years during the first
three years of this Agreement and, thereafter, not to exceed five years.
Payments shall commence on the first day of the month following the
Conversion Date and each month thereafter until paid in full unless the
Outsourcing Services agreement shall earlier terminate and BISYS is no longer
an Outsourcing Services provider or Facilities Manager to such Customer.
Where such agreement is renewed for an additional renewal term, OSI shall be
entitled to an additional license fee equal to thirty percent (30%) of the
difference, if any, between the License Fee payable by a similarly situated
Financial Institution as of the date of such renewal and the License Fee
payable by a similarly situated Financial Institution as of the date of the
agreement. Such additional license fee, if any, shall be payable by BISYS
over the renewal term of the agreement, not to exceed five years. Payments
shall commence on the first day of each month following the renewal date and
thereafter until paid in full unless the agreement shall earlier terminate
and BISYS is no longer an Outsourcing Services provider or Facilities Manager
to such Customer.
ii) FACILITIES MANAGEMENT. Upon successful completion of the Conversion to the
System pursuant to a Facilities Management agreement, OSI shall be entitled to
a license fee equal to [**] of the OSI License Fee payable by an OSI direct
customer similarly situated to such Customer as of the effective date of such
Facilities Management agreement. Such license fee shall be payable in equal
monthly installments over the initial term of the Facilities Management
agreement, not to exceed three years during the first three years of this
Agreement and, thereafter, not to exceed five years. Payments shall commence on
the first day of each month following the Conversion Date and thereafter until
paid in full unless the Facilities Management agreement shall earlier terminate
and BISYS is no longer an Outsourcing Services provider or Facilities Manager
to such Customer. Where such agreement is renewed for an additional renewal
term, OSI shall be entitled to an additional license fee equal to [**] of the
difference, if any, between the License Fee payable by a similarly situated
Financial Institution as of the date of such renewal and the License Fee
payable by a similarly situated Financial Institution as of the date of the
agreement. Such additional license fee, if any, shall be payable by BISYS over
the renewal term of the agreement, not to exceed five years. Payments shall
commence on the first day of each month following the renewal date and
thereafter until paid in full unless the agreement shall earlier terminate and
BISYS is no longer an Outsourcing Services provider or Facilities Manager to
such Customer.
iii) TERMINATION. In the event of termination of a Outsourcing Services
agreement or Facilities Management agreement prior to the expiration of its
initial or renewal term and the termination of the corresponding license fee,
BISYS shall pay OSI in addition to the normal ongoing fees due until
termination, a termination fee equal to the lesser of the
Confidential portions omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
11
amount representing (A) the number of monthly installments remaining and (B)
the number of monthly installments set forth below based on the number of
months remaining in the initial or renewal term of such Outsourcing Services
or Facilities Management agreement:
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Months Remaining in Term Monthly Installments Payable
--------------------------------------------------------------------------------
36+ 12
--------------------------------------------------------------------------------
24-35 6
--------------------------------------------------------------------------------
12-23 3
--------------------------------------------------------------------------------
No further payment obligations in respect of such license fee shall be due.
(b) MAINTENANCE FEE. Upon Conversion to the System, OSI shall be entitled to
an annual maintenance fee during the initial term of the BISYS agreement with a
Customer equal to a percentage of the OSI License Fee payable by an OSI direct
customer similarly situated as of the date of the agreement as follows:
--------------------------------------------------------------------------------
Year Percentage
--------------------------------------------------------------------------------
1 and 2 5%
--------------------------------------------------------------------------------
3 7%
--------------------------------------------------------------------------------
4+ 10%
--------------------------------------------------------------------------------
Such annual maintenance fee shall be payable in equal monthly installments
commencing on the first day of each month following the Conversion Date through
the initial term or earlier termination of the agreement between BISYS and such
Customer. During any renewal term of the BISYS agreement with a Customer OSI
shall be entitled to an annual maintenance fee equal to 10% of the License Fee
payable by a similarly situated Financial Institution as of the date of such
renewal Such annual maintenance fee shall be payable in equal monthly
installments commencing on the first day of each month following the renewal
date through the renewal term or earlier termination of such agreement.
(c) REFERRAL FEE. Upon the conversion of a System based on the lead
registration and referral process described in Section 6(f) hereof, the party
receiving the benefit of the referral shall pay the Referring Party a
one-time referral fee equal to [**] of the License Fee payable by a similarly
situated Financial Institution, payable within 30 days of the conversion date
of the System. To the extent the referral was provided by a sales
Confidential portions omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
12
representative customarily entitled to commissions, it is expected that the
Referring Party shall, subject to its internal commission policies with
respect to entitlement to commissions, pay such referral fee to such sales
representative.
(d) PREFERRED VENDOR FEES. Where through OSI's efforts BISYS secures an
agreement to provide the services set forth in Section 5 hereof to OSI direct
customers of the System, OSI shall be entitled to receive the following fees
based on such agreements during the period in which both this Agreement and such
agreement to provide such services are in effect:
[**] [**] of annual revenue
[**] [**] of initial license fee
[**] [**] of annual revenue
[**] [**] of annual revenue
Such fees, other than the fees related to [**], shall be payable monthly by the
end of the month based on the payment of the associated revenues by the customer
to BISYS in the preceding month. A summary report setting forth the calculation
of the fees shall accompany such monthly payment. The fees relating to imaging
services shall be paid within 30 days of receipt of the payment to BISYS of such
initial license fee.
9. SYSTEM SUPPORT.
Irrespective of the termination of this Agreement, so long as any Outsourcing
Services or Facilities Management agreement between BISYS and a Customer
employing the System shall be in effect, OSI shall be obligated to provide
ongoing maintenance support to BISYS for the OSI Proprietary Software and the
OSI Interface Software as provided in Attachment 1 hereto
Notwithstanding OSI's support provided under Attachment 1, BISYS agrees that it
shall provide the first line of product and technical help desk support to its
Customers. This shall include all of the day to day issues of functionality,
error correction and customer service. In no instance shall OSI provide direct
support to BISYS Customers. Said OSI services shall be provided seven (7) days
per week, twenty four (24) hours per day for Priority A errors and during normal
working hours for other errors. OSI shall furnish the names and telephone
numbers of its personnel for both normal working hours and other times (e.g.,
holidays, weekends, etc.). BISYS shall provide the names and telephone numbers
of the designated BISYS personnel assigned to work with OSI.
BISYS agrees to use its best efforts to minimize the number of support contacts
that it makes with OSI after the first five (5) outsourcing Services or
Facilities Management Services installations made under this Agreement.
10. PRODUCT DEVELOPMENT.
Confidential portions omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
13
OSI shall use reasonable commercial efforts to maintain the System competitive
in its marketplace. A breach of the foregoing shall be deemed a material breach
under the Agreement. OSI shall have the opportunity to cure any such breach
upon notice as provided in Section 21 herein. Appropriate representatives of
OSI and BISYS shall meet at least semi-annually to discuss and review OSI
product development plans and for BISYS to provide input based on competitive
feature and function requirements. At any time during the term of this
Agreement, BISYS shall have the right to request certain development efforts
related to the System. To the extent it is mutually agreed that such
development efforts enhance the overall value, marketability or competitive
position of the system, such efforts shall be funded by OSI. BISYS shall be
given the opportunity to contribute to such efforts either through funding
and/or contribution of application specifications and/or certain technology to
expedite delivery or to address certain customer requirements that may not be
considered to significantly enhance the overall value, marketability or
competitive value of the system. In the event that BISYS develops and offers to
OSI an application mutually agreed to have value to the System, BISYS shall
contribute such application to OSI in consideration of a payment equal to the
lesser of 25% of the development costs of BISYS and $250,000. Payment to BISYS
for any such development shall be made quarterly over a three year period. All
products, derivative works or other intellectual property resulting from such
development efforts and incorporated into the System shall, as incorporated, be
the property of OSI regardless of the manner of funding and regardless of
whether made by OSI or BISYS. As the developer of the System, OSI acknowledges
that it will from time to time engage in certain software and hardware
benchmarking activities. OSI shall provide BISYS with written copies of the
results of all such benchmarking activities within 30 days of any such
benchmarking.
The parties recognize that BISYS has an interest in evaluating the technical
feasibility of integrating certain OSI System modules as replacements and/or
upgrades to its existing mainframe modules or otherwise developing linkages
between the OSI System modules and its mainframe modules. OSI agrees to support
and participate in any such feasibility evaluations which are expected to
include an evaluation of the integration of OSI's client server module to the
BISYS mainframe environment and/or use of the OSI System application code at the
BISYS mainframe level.
OSI, recognizing that modifications to the System designed to enhance its
performance in a multi Financial Institution processing environment will be
beneficial I to BISYS and to the Permitted Licensees and are fundamental to
such persons serving as Outsourcing providers, shall modify the System
accordingly to attain the anticipated benefits within a mutually agreeable
time-frame provided that BISYS pays for 75% of the required investment. BISYS
shall recover from OSI up to one-third of such investment(s) (i.e., 25% of the
total investment such that if fully recovered OSI and BISYS shall have each
invested 50% of the required investment) in the following manner:
(a) upon the grant of a license to a Permitted Licensee, a credit toward
License and Maintenance Fees payable pursuant to Sections 8(a) and (b) hereof
equal to the total investment made by BISYS multiplied by a fraction the
numerator of which is the number
14
of clients for which the Permitted Licensee provides outsourcing services and
the denominator is the number of clients for which BISYS provides outsourcing
services; and
(b) a credit of 50% toward any License and Maintenance Fees payable in excess
of the minimum required License and Maintenance Fees pursuant to Sections 8(a)
and (b) hereof as set forth in the table in Section 4(a) hereof.
OSI reserves all right to determine the scope and nature of any and all
development activities that will be performed to the System regardless of the
source of funding.
11. CUSTOMER REQUIREMENTS.
OSI recognizes that BISYS may from time to time be requested to provide
additional features, functionality or interfaces with respect to the System in
order to secure a new, or retain an existing, Customer. OSI agrees to use
reasonable commercial efforts to deliver a feasibility assessment with respect
to such additional features, functionality or interfaces in writing within 30
days of receipt of a written request, including but not limited to an assessment
of the time period and resources necessary for, and remuneration to OSI to
satisfy such requirements. Based on such assessment, OSI and BISYS by mutual
agreement shall determine the appropriate course of action to address the
Customer requirements and, if appropriate, to set forth the specifications,
deliverables and costs in a writing mutually agreed and signed by OSI and BISYS.
OSI shall use commercially reasonable efforts to satisfy the requirements set
forth in such written agreement within the agreed time periods. BISYS shall not
make any contractual obligations with respect to such Customer requirements
except as specifically approved in writing by OSI.
12. THIRD PARTY PRODUCTS.
Subject to limitations with the agreements between OSI and third parties and
applicable law, OS shall split with BISYS on a 50/50 basis all net profit from
the sale of certain third party products, including but not limited to the TPS,
licensed or sold in conjunction with the System to support outsourcing Services
and Facilities Management services provided by BISYS.
13. SOURCE CODE. As a condition to the effectiveness of the Agreement, OSI
agrees to enter into the standard escrow agreement providing BISYS with certain
rights to the source code for the OSI Proprietary Software and the OSI Interface
Software owned by OSI as set forth as Attachment 2 hereto, and to provide
current versions of such Software to the Escrow Agent as provided in such Escrow
Agreement, with the following additional release conditions:
(a) OSI's failure to take reasonable commercial efforts to cure its material
breach within ninety (90) days of receipt of written notice of such breach;
15
(b) OSI (i) becomes or is declared insolvent or bankrupt, (ii) becomes the
subject of, and fails to cause its dismissal within 180 days, any proceedings
relating to its liquidation, insolvency or for the appointment of a receiver or
similar officer for it, (iii) makes an assignment for the benefit of all or
substantially all of its creditors, or (iv) enters into an agreement for the
composition, extension, or readjustment of all or substantially all of its
obligations; or
(c) written notice of BISYS at any time during the 180 day period following a
Change of Control of OSI.
Emergency Access to Source Code: BISYS shall have immediate, temporary access to
the OSI Source Code upon written request to OSI in the event that a Customer
Emergency occurs. Such access shall last until the condition(s) requiring such
access have ceased and thereupon BISYS shall promptly return the deposit
materials to the Escrow Agent, together with a notification of the actions taken
and due documentation of all modifications, if any, made to the OSI Source Code.
Definitions: For purposes of this Section, the following definitions shall
apply:
Customer Emergency: BISYS has received notification from a Customer clearly and
convincingly demonstrating that, unless immediate, emergency corrective
modifications are made to the OSI Proprietary Software or to the OSI Interface
Software, and OSI is either incapable or refuses to make such corrective
modification, the Customer will be unable to operate in a commercially
reasonable capacity (which capacity shall include temporary off-line operations)
and material damages will be incurred by the Customer as a result thereof.
BISYS RIGHTS TO OSI SOURCE CODE UPON CHANGE OF CONTROL OF OSI. OSI shall
promptly deliver to BISYS a machine readable copy of the then current version of
the OSI Source Code upon a Change of Control of OSI. Thereafter OSI shall
deliver a new machine readable copy of the OSI Source Code within ninety (90)
days following a general release to OSI customers of any Enhancements or new
versions of the OSI Proprietary Software or OSI Interface Software developed by
OSI unless and until BISYS elects not to terminate this Agreement pursuant to
Section 21 (b)(iv) hereof, in which case BISYS shall return all copies of the
OSI Source Code to OSI or its successor and continue with the Agreement as
originally determined. In the event that BISYS chooses to terminate this
Agreement as provided in Section 21 (b)(iv) due to a Change of Control of OSI,
BISYS shall have the right to use the OSI Source Code to provide Outsourcing
Services and Facilities Management services to BISYS Customers and to maintain
and support such services, shall be free to develop additional Enhancements to
such OSI Source Code for use by BISYS Customers. It is understood that any
Enhancements, modifications or changes made by BISYS to the OSI Source Code
under this section shall be used solely for the purposes described in the
previous sentence. BISYS shall have ownership rights to only the Enhancements
made by BISYS allowable under this Section 13. OSI shall have no obligation to
16
support and maintain any Enhancements made by BISYS under the conditions set
forth in Section 21(b)(iv).
14. BOARD SEAT.
During the term of this Agreement, BISYS shall be entitled to nominate a
candidate to the Board of Directors of OSI, or any parent or holding company
that may hereafter exist and OSI agrees to take steps necessary to cause the
nomination of the person so nominated.
15. EMPLOYEES.
During the term of this Agreement, each party will refrain from seeking to hire
the employees of the other and, for the one year following termination of
employment, terminated employees of the other without the prior written consent
of the other.
16. CONFIDENTIALITY.
OSI represents that the System contains trade secrets and BISYS agrees to treat
the OSI Proprietary Software, OSI Database model and OSI Interface Software as
OSI's confidential information and will not disassemble, de-compile or reverse
engineer the System. Any breach or attempted breach of the foregoing sentence
shall be considered a material breach and subject to cure as provided in Section
21 herein.
The parties further acknowledge that in the course of performing their
respective responsibilities under this Agreement, each may be exposed to or
acquire information which is proprietary to or confidential to the other party
or its clients, including computer programs, software tools, protocols, system
benchmarks, business and marketing plans, product descriptions, development
schedules, product positioning, choices of product names and financial data. All
such confidential and proprietary information, in whatever form, are hereinafter
collectively referred to as "Confidential Information".
Except as otherwise permitted hereunder, the parties agree to hold such
information in strict confidence and not to copy, reproduce, sell, assign,
license, market, transfer, give or otherwise disclose such information to third
parties or to use such information for any purposes whatsoever, without the
express written permission of the other party and to advise each of their
employees, agents and representatives of their obligations to keep such
information confidential.
The parties shall use their reasonable efforts to assist each other in
identifying and preventing any unauthorized use or disclosure of any
Confidential Information. Without limitation of the foregoing, the parties
shall use reasonable efforts to advise each other immediately in the event
that either learns or has reason to believe that any person who has had
access to Confidential Information has violated or intends to violate the
terms of
17
this provision, and will reasonably cooperate in seeking injunctive relief
against any such person.
"Confidential Information" shall not include information that: (i) is, as of the
time of its disclosure, or thereafter becomes part of the public domain through
a source other than the receiving party; (ii) was known to the receiving party
as of the time of its disclosure; (iii) is independently developed by the
receiving party; (iv) is subsequently learned from a third party not under a
confidentiality obligation to the providing party; or (v) is required to be
disclosed pursuant to court order or government authority, whereupon the
receiving party shall provide notice to the other party prior to such
disclosure.
17. WARRANTIES.
(a) OWNERSHIP. OSI represents and warrants that it has the sole ownership of
and/or the right to license and sub-license the OSI Proprietary Software and the
OSI Interface Software as contemplated by this Agreement and has the full power
to grant the rights granted herein without the consent of any other person or
entity.
(b) PERFORMANCE. OSI represents, warrants and covenants that the media on
which the OSI Proprietary Software and OSI Interface Software is recorded and
delivered to BISYS hereunder is free from defects in material and workmanship
under normal use and service for a period of ninety (90) days from delivery. OSI
agrees to replace any
defective media upon return to OSI. OSI represents and warrants that it has
taken all steps necessary to test the OSI Proprietary Software and the OSI
Interface Software for Disabling Code (as defined herein) and to eliminate
Disabling Code from the OSI Proprietary Software and the OSI Interface Software.
OSI warrants that the OSI Proprietary Software and the OSI Interface Software
will be free of Disabling Code as of the date of delivery by OSI to BISYS.
OSI will continue to take such steps with respect to all Enhancements made by
OSI to keep the same and the OSI Proprietary Software and OSI Interface Software
free of Disabling Code. Disabling Code shall mean computer instructions that:
a. Alter, destroy or inhibit the OSI Proprietary Software, OSI Interface
Software or BISYS' processing environment, including without limitation, other
programs, data storage, computer libraries, and computer and communications
equipment;
b. without functional purpose, self-replicate without manual intervention; or
c. purport to perform a meaningful function but which actually perform either
a destructive or harmful function, or perform no meaningful function.
OSI agrees that it will maintain a master copy of the OSI Proprietary Software
and the OSI Interface Software and all Enhancements made by OSI thereto, and
will take such steps as are necessary to keep the same free of Disabling Code.
18
(c) DISCLAIMER. THESE EXPRESS WARRANTIES TAKE THE PLACE OF AND SUPERSEDE ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED AND WHETHER OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE OR OTHERWISE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, OSI DOES NOT WARRANT, GUARANTEE, OR MAKE
ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE OSI
PROPRIETARY SOFTWARE, OSI INTERFACE SOFTWARE OR DOCUMENTATION. OSI DOES NOT
WARRANT THAT THE OPERATIONS OF THE OSI PROPRIETARY SOFTWARE OR OSI INTERFACE
SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
BISYS understands that OSI is not responsible for and will have no liability for
and does not warrant hardware, software, or other items or any services provided
by any persons other than OSI. BISYS will also indemnify and hold OSI harmless
from any misrepresentations made by BISYS or its representatives as to the
features, functions and capabilities of the System. Failure of BISYS to
indemnify or hold OSI harmless from any such misrepresentation shall be
considered a material breach of this Agreement.
(d) LIMITATION OF LIABILITY. EXCEPT FOR OSI'S INDEMNITY OBLIGATIONS UNDER
SECTION 19 (RELATING TO INTELLECTUAL PROPERTY INFRINGEMENTS), A BREACH OF ITS
CONFIDENTIALITY OBLIGATIONS UNDER SECTION 16, ANY LIABILITY OSI MAY HAVE FOR
PERSONAL INJURY OR DAMAGE OR DESTRUCTION OF REAL OR TANGIBLE PERSONAL
PROPERTY, OR LIABILITY RESULTING FROM OSI'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT, OSI SHALL NOT BE LIABLE TO BISYS FOR ANY INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OR LOST PROFITS OR REVENUES OUT
OF THIS AGREEMENT OR IN ANY WAY RELATED TO THIS AGREEMENT, EVEN IF OSI KNOWS,
SHOULD HAVE KNOWN, OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT FOR A BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 16, OR
LIABILITY RESULTING FROM ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BISYS SHALL
NOT BE LIABLE TO OSI FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES OR LOST PROFITS OR REVENUES ARISING OUT OF THIS AGREEMENT OR IN ANY WAY
RELATED TO THIS AGREEMENT, EVEN IF BISYS KNOWS, SHOULD HAVE KNOWN, OR HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(e) COMPLIANCE WITH LAWS AND REGULATIONS. OSI represents that for a period of
ninety (90) days after the date of execution of this Agreement and during any
period during which BISYS is receiving support in accordance with the terms and
conditions hereof, the OSI Proprietary Software and the OSI Interface Software
shall:
a. Function and perform substantially in accordance with the Documentation
and specifications.
b. Operate on the Designated Hardware consistent with the specifications
and Documentation.
19
c. Process BISYS' Customer's data in accordance with the minimum data
processing standards promulgated by federal banking agencies which regulate
BISYS' Customers. If BISYS discovers that either the OSI Proprietary Software or
OSI Interface Software does not meet the criteria set forth above, BISYS shall
notify OSI and OSI shall promptly take commercially reasonable steps in
accordance with support terms and conditions to bring the OSI Proprietary
Software or OSI Interface Software into compliance with the criteria set forth
above.
(f) YEAR 2000 COMPLIANCE. OSI represents that the OSI Proprietary Software and
the OSI Interface Software to be utilized by BISYS and its Customers corresponds
with standards set forth in Attachment 3 to this Agreement, taking into
consideration the appropriate governmental regulatory agencies' requirements
regarding the year 2000. Upon BISYS' written request given after October 1,
1998, BISYS, at its own cost, may retain the services of a third party auditor
to review and evaluate, at a time mutually agreed, the System for the sole
purpose of determining whether the System is able to perform Year 2000
processing.
(g) COMPATIBILITY WITH DESIGNATED HARDWARE. The System, and each module and
function thereof, will be capable of operating in a commercially reasonable
manner on the Designated Hardware and operating environment specified in
Schedule 17(g).
18. [THERE IS NO SECTION 18.]
19. INDEMNIFICATION.
(a) INDEMNIFICATION BY OSI. OSI shall defend, indemnify and hold BISYS and its
officers, directors, agents and employees harmless from and against any and all
claims, suits, damages, liabilities, costs and expenses (including reasonable
attorney's fees) arising out of or resulting from any claim that BISYS' use of
the OSI Proprietary Software or OSI Interface Software infringes a presently
existing United States patent, copyright, or trademark or misappropriates a
trade secret of any third party, provided OSI is:
i) promptly notified of any and all threats, claims and proceedings related
thereto,
ii) given reasonable assistance (at OSI's sole cost and expense), and
iii) given the opportunity to assume sole control over the defense and all
negotiations for a settlement or compromise.
OSI shall not, however, enter into any settlement without BISYS' prior written
consent, which shall not be unreasonably withheld, if such settlement impairs
any material right of BISYS under the Agreement.
Notwithstanding anything to the contrary contained herein, BISYS shall have the
right to defend and settle, at OSI's expense, against any such infringement or
misappropriation claim in the event that OSI fails to assume or reasonably
pursue such defense.
In the event that the OSI Proprietary Software or OSI Interface Software, or any
portion thereof becomes the subject of a claim of infringement or
misappropriation, OSI may, at
20
its option and its expense, take any of the following steps so that BISYS'
use is not subject to any claim of infringement or misappropriation and BISYS
is provided with functionally equivalent software to the reasonable
satisfaction of BISYS, provided that BISYS' use of the OSI Proprietary
Software or OSI Interface Software conforms with the provisions of the
Agreement:
i) procure for BISYS the right to continue using the OSI Proprietary Software
or OSI Interface Software; or
ii) replace or modify the infringing portion of the OSI Proprietary Software
or OSI Interface Software.
The foregoing obligations of OSI do not apply with respect to software and any
other products or portions or components thereof.
i) which are not the latest available release supplied by OSI to BISYS,
ii) which are modified by BISYS after shipment by OSI, if the alleged
infringement relates to such modification, unless OSI has consented to the
modification in writing, or such modifications is otherwise authorized,
permitted or provided for under this Agreement, or
iii) which are combined with other products, processes, hardware or materials
where the alleged infringement relates to such combination, unless OSI has
consented in writing to such combination or such combination is otherwise
authorized, permitted or provided for under this Agreement.
THE FOREGOING STATES THE ENTIRE LIABILITY OF OSI WITH RESPECT TO INFRINGEMENT OF
ANY PATENTS, COPYRIGHTS, TRADEMARKS OR MISAPPROPRIATION OF TRADE SECRETS BY THE
OSI PROPRIETARY SOFTWARE OR OSI INTERFACE SOFTWARE OR ANY PARTS THEREOF. NO
COSTS OR EXPENSES SHALL BE INCURRED FOR THE ACCOUNT OF OSI BY BISYS OR ITS
AGENTS WITHOUT THE PRIOR WRITTEN CONSENT OF OSI.
The provisions of this Section 19 do not apply to any TPS or any OSI Interface
Software licensed by OSI from a third party.
INDEMNIFICATION PROCEDURES. The OSI indemnification obligation under the
foregoing subparagraph (a) shall not apply (I) to the extent that BISYS was
responsible for giving rise to the matter upon which the claim for
indemnification is based, and (ii) unless BISYS promptly notifies OSI of any
matters in respect of which the indemnity may apply and of which BISYS has
knowledge and gives OSI the full opportunity to control the response thereto and
the defense thereof, including without limitation any agreement relating to the
settlement thereof. BISYS' failure to promptly give notice shall affect OSI's
indemnification obligation only to the extent OSI's rights are materially
prejudiced by such failure. BISYS may participate, at its own expense, in such
defense and in any settlement discussions directly or through counsel of its
choice.
21
20. RIGHT TO MAKE AN OFFER UPON THIRD PARTY OFFER.
BISYS shall have the right to offer to acquire all the outstanding shares or
substantially all the assets of OSI in the event of any bona fide written Third
Party Offer to acquire all of the outstanding shares or substantially all the
assets of OSI acceptable to the Board of Directors of OSI. OSI shall notify
BISYS of such offer and
Confidential Materials omitted and filed separately
with the Securities and Exchange Commission. Asterisks denote omissions.
all material terms thereof. For purposes of this Section, a "Third Party Offer"
means a written offer from any person or entity with the demonstrated financial
means to purchase all the outstanding shares or substantially all the assets of
OSI. Once BISYS receives notice of such bona fide offer and OSI's notice of
intention to duly consider such offer, BISYS shall have [**] in which to notify
OSI of its intent either to offer to acquire all of the outstanding ownership
interests in or substantially all the assets of OSI or to decline the
opportunity to make an offer. If BISYS intends to make an offer it shall do so
within [**] of its notice to OSI. Thereafter, OSI shall consider the BISYS offer
prior to acceptance of any offer. The OSI Board of Directors at its discretion
and in accordance with its fiduciary duty will consider and accept the offer
that best benefits OSI's shareholders. BISYS' right to notice shall terminate
upon completion of an initial public offering.
21. TERMINATION.
(a) TERM. This Agreement shall commence as of the Effective Date and continue
indefinitely unless terminated in accordance with provisions under this Section.
(b) TERMINATION CONDITIONS. This Agreement shall terminate upon:
(i) written agreement of the parties to terminate this Agreement;
(ii) a party failing to cure its material breach within ninety (90) days of
receipt of notice of such breach, and notice from the non-breaching party to the
breaching party of its intent to terminate this Agreement as of the date set
forth in such notice;
(iii) a party (A) becoming or being declared insolvent or bankrupt, (B) becoming
the subject of, and failing to cause its dismissal within 180 days, any
proceedings relating to its liquidation, insolvency or for the appointment of a
receiver or similar officer for it, (C) making an assignment for the benefit of
all or substantially all of its creditors, or (D) entering into an agreement for
the composition, extension, or readjustment of all or substantially all of its
obligations, and notice from the other party of its intent to terminate this
Agreement as of the date set forth in such notice; or
(iv) written notice of BISYS at any time during the 180 day period following a
Change of Control of OSI on not less than 30 days written notice; provided that
such termination date is a date not later than the last day of such 180 day
period.
22
(c) DUTIES UPON TERMINATION. Upon termination of this Agreement, the
parties shall continue to perform their respective payment and support
obligations under Sections 8 and 9 hereof which obligations shall survive the
termination of this Agreement. The foregoing notwithstanding, in the event of
a termination pursuant to clause (b)(iv) above, BISYS and OSI shall have the
following rights and obligations so long as any Outsourcing Services or
Facilities Management agreement remains in effect:
i) OSI shall continue to provide all Enhancements to, and any and all new
versions of, the OSI Source Code to BISYS within 90 days following general
release to OSI customers;
ii) BISYS shall have the right to convert an unlimited number of additional
BISYS Customers to the System and in consideration thereof shall pay OSI the
License Fees as provided in Section 8(a) hereof;
iii) For the 12 month period commencing with the first full month following the
termination date, BISYS shall pay the Maintenance Fees provided in Section 8(b)
hereof for both then existing and new BISYS Customers and OSI shall provide the
support services as set forth in Attachment 1 hereto. After such 12 month
period, (Y) OSI shall no longer be obligated to provide such support services,
and (Z) in consideration of OSI's obligation in clause i) above, BISYS shall pay
OSI a maintenance fee of 3% (5% commencing with the quarter following the
date on which the number of BISYS Customers exceeds 100) of the License Fee
applicable to each BISYS Customer. The applicable License Fee for existing BISYS
Customers as of the end of such 12 month period shall be the License Fee then
being used for such Customer for the calculation of maintenance fees under
Section 8(b) hereof. The applicable License Fee for new BISYS Customers after
such 12 month period shall be the License Fee used to determine the license fee
payable by BISYS pursuant to the foregoing clause ii).
22. DISPUTE RESOLUTION.
(a) Any controversy or claim arising out of or relating to this Agreement or
the breach thereof shall be settled by arbitration before three (3) arbitrators
in accordance with the Rules of the American Arbitration Association ("AAA")
then in effect, and judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction. Any such arbitration shall be
conducted in the city nearest OSI's office having an AAA regional office. The
arbitrators shall be selected from a panel of persons having experience with and
knowledge of electronic computers and the computer business, and at least one of
the arbitrators selected shall be an attorney.
(b) The arbitrators shall have no authority to award punitive damages and may
not, in any event, make any ruling, finding or award that does not conform to
the terms and conditions of this Agreement.
23
(c) Either party, before or during any arbitration, may apply to a court
having jurisdiction for a temporary restraining order or preliminary or
permanent injunction where such relief is necessary to protect its interests.
(d) Neither party nor the arbitrators may disclose the existence or results
of any arbitration hereunder without the prior written consent of both Parties.
(e) Prior to initiation of arbitration or any form of legal or equitable
proceeding permitted by this agreement, the aggrieved party shall give the other
party at least thirty (30) days prior written notice describing the claim and
amount as to which it intends to initiate action, provided that nothing
contained herein shall prohibit either party from immediately seeking equitable
relief to enforce any provision of this agreement from a court of competent
jurisdiction under such circumstances as that party's interests hereunder and
its property will be otherwise comprised.
23. ASSIGNMENT. Except as specifically stated in this Agreement with regards
to Change in Control, neither this Agreement nor any of the rights, interests or
obligations of any party hereunder shall be assigned or delegated by either
party hereto without the prior written consent of the other. Such consent shall
not be withheld unreasonably. Any unauthorized assignment or delegation shall be
null and void.
24. GENERAL.
(a) NOTICES. Any notice provided pursuant to this Agreement shall be in
writing and shall be deemed given (i) if by hand delivery, upon receipt thereof;
(ii) if mailed, three (3) days after deposit in the United States mails, postage
prepaid, certified mail return receipt requested, or (iii) if sent via overnight
courier upon receipt.
If to BISYS:
▇▇▇▇ ▇. ▇▇▇▇▇▇, President
BISYS, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
With copies to:
General Counsel
The BISYS Group, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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If to OSI:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
Open Solutions, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
With copies to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(b) BINDING AGREEMENT. This Agreement shall be binding upon and inure to the
benefit of the parties, their successors and permitted assigns.
(c) GOVERNING LAW AND VENUE. This Agreement and performance hereunder shall be
governed by the laws of the State of New York without regard to conflicts of
law.
(d) FORCE MAJEURE. Neither party shall be liable for delay or failure to
perform any of its obligations hereunder to the extent that such delay or
failure arises times shall be considered extended for a period of time equal to
the time lost because of such delay or failure.
(e) SEVERABILITY. If any provision of this Agreement shall be held to be
invalid, illegal or unenforceable by a court of competent jurisdiction, the
validity, legality and enforceability of the remaining provisions shall in no
way be affected or impaired thereby.
(f) REMEDIES. The rights and remedies of the parties set forth in this
Agreement are not exclusive and are in addition to any other rights and remedies
available to them in law or in equity.
(g) NO WAIVER. The waiver or failure of any party to exercise any right
provided for herein shall not be deemed a waiver of any further right hereunder.
(h) INDEPENDENT CONTRACTORS. The parties shall at all times be independent
contractors with respect to each other in carrying out this Agreement.
(i) HEADINGS. Headings used in this Agreement are for reference only and shall
not be deemed a part of this Agreement.
(j) SURVIVAL. In addition to OSI's obligations under Section 9, and BISYS'
payment obligations under section 8 and rights to obtain the source code from
escrow under Section 13, the provisions of this Agreement relating to
warranties, limitations of
25
liability, indemnification, confidentiality, choice of law and dispute
resolution shall survive the termination of this Agreement.
(k) CONDUCT. Notwithstanding that OSI and BISYS may at times be in competition
for the same Customer, each party agrees to refrain from conduct intended to
disadvantage the other. Repeated violations of this section during any twelve
(12) month period after notice of such violation shall be considered a material
breach not subject to cure.
(l) TAXES. The System licensed hereunder to BISYS is basically for sublicense
to Customers and therefore should be exempt from sales, use and other similar
taxes. However, if such tax should be imposed on OSI, BISYS shall either bear
such tax by a direct payment to the taxing authority or shall reimburse OSI for
such tax. BISYS shall be responsible for any applicable customs and duties
related to its sublicensing of the System.
(m) ENTIRE AGREEMENT. This Agreement constitutes the complete understanding
and agreement of the parties with respect to the subject matter hereof and
supersedes and merges any prior understandings, statements, negotiations between
the parties, whether oral or otherwise. This Agreement may not be modified
except by a writing subscribed to by both parties.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives as of the date first set forth above.
OPEN SOLUTIONS INC. BISYS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------- ---------------------------------
Name/title: Name/title:
26
