MARKETING AGREEMENT
This Marketing Agreement is entered into this 30th day of June, 1995 by and
between Jack Henry & Associates, Inc. ("Jack Henry") and Broadway & Seymour,
Inc. ("BSI").
BACKGROUND STATEMENT
Contemporaneously herewith, Jack Henry and BSI are entering into a Stock
Purchase Agreement pursuant to which Jack Henry is purchasing all of the issued
and outstanding stock of Liberty Software, Inc. ( "LSI"). LSI is a wholly owned
subsidiary of BSI that has acquired a substantial portion of the assets of the
Community Financial Institution business unit of BSI. In connection with that
transaction, the parties have agreed to cooperate in connection with BSI
marketing certain other software to the combined customer base of Jack Henry and
LSI. This Agreement sets forth in more detail the rights and obligations of the
parties.
AGREEMENT
NOW, THEREFORE, the parties hereto agree for themselves, their successors
and assigns as follows:
1. DEFINITIONS. As used in this Agreement as defined terms, the
following terms shall have the meanings set forth below:
1.1 The term "BSI AUXILIARY SOFTWARE" means the BSI software products
described in Exhibit A hereto. The parties may enter into one or more Addenda
in the future providing that the term "BSI AUXILIARY SOFTWARE" shall also
include specific additional software products that are marketed by BSI to
Customers during the term of this Agreement for use with the Software to provide
functions and capabilities supplemental to the Software.
1.2 The term "CUSTOMERS" means the aggregation of (a) the existing
licensees of BSI's Liberty software, for so long as each such license is in
existence; (b) the existing licensees of Jack Henry's CIF 20/20 software, for so
long as each such license is in existence; (c) the existing licensees of Jack
Henry's Silverlake software, for so long as each such license is in existence;
(d) the existing licensees of Software owned by any other competitor of Jack
Henry at the time Jack Henry directly or indirectly acquires that competitor or
the assets thereof; and (e) those third parties who become licensees of Software
during the term of this Agreement, whether such licenses are granted by Jack
Henry or any direct or indirect subsidiary of Jack Henry, or any other entity
resulting from the combination or other reorganization of Jack Henry, for so
long as each such license is in existence.
1.3 The term "CUSTOMER LIST" means any list of Liberty Customers retained
by BSI and any list of Customers supplied by Jack Henry to BSI pursuant to
Section 3.2 hereof.
1.4 The term "SOFTWARE" means all of the following software products to
the extent they are being marketed, distributed, licensed or supported during
the term hereof by Jack Henry or any direct or indirect subsidiary of Jack
Henry, or any other entity resulting from the combination or other
reorganization of Jack Henry: (a) BSI's Liberty software; (b) Jack Henry's CIF
20/20 and Silverlake software; and (c) any modification, enhancement or
replacement thereof or any third party software that performs essentially the
same basic functions as any such software product.
2. BSI RIGHTS AND OBLIGATIONS.
2.1 Right to Market. BSI agrees that it will provide Jack Henry with
advance copies of any written materials that are to be mailed or otherwise
provided to Customers in connection with a marketing campaign that uses the
Customer List to market any software product to the Customer base. Except as
otherwise expressly provided above and in Section 6.7 hereof, BSI shall have and
retain the right to market BSI Auxiliary Software to Customers through whatever
means BSI determines to be appropriate. Except as otherwise expressly provided
in Section 6.7 hereof, BSI shall have and retain the right to enter into any
agreements with Customers with respect to the BSI Auxiliary Software that BSI
may determine to be appropriate, without any approval by or consent from Jack
Henry.
2.2 BSI Obligations. BSI shall have the sole responsibility for
developing any new products that are to be included within the scope of BSI
Auxiliary Software and for enhancing, marketing, installing and supporting all
BSI Auxiliary Software. BSI shall have the sole contractual relationship with
Customers with respect to BSI Auxiliary Software and shall be solely responsible
for all of its warranties and representations relating to BSI Auxiliary
Software.
3. JACK HENRY RIGHTS AND OBLIGATIONS.
3.1 Endorsements and Marketing Assistance. Upon the execution of this
Agreement and from time to time during the term of this Agreement upon request
by BSI, Jack Henry shall endorse the BSI Auxiliary Software as the preferred
supplemental software for Customers. BSI and Jack Henry shall cooperate in good
faith in developing the text of each such written endorsement and distributing
the endorsement to Customers. Jack Henry shall identify BSI as a provider of
supplemental products in its advertising and direct mail solicitations whenever
it would be commercially appropriate to do so given the nature and other content
of the materials. The above notwithstanding, Jack Henry shall not be required
to endorse any unproven BSI Auxiliary Software until BSI has reasonably
demonstrated the adequacy of that software through successful implementation.
3.2 Customer Access. Upon the execution of the first Addendum to this
Agreement, Jack Henry shall provide BSI with a customer list, identifying each
Customer (other than customers of BSI's Liberty software) and including the
name, address and telephone number of Jack Henry's principal contact at each
such Customer. Upon request by BSI from time to time during the term of this
Agreement, Jack Henry shall update the customer list to assure that it is
complete and accurate (with the initial customer list and all updates thereto
cumulatively referred to in this Agreement as the "Customer List"). Upon
request by BSI from time to time during the term of this Agreement, Jack Henry
shall introduce representatives of BSI to its Customer contacts. Jack Henry
shall notify BSI in advance of all scheduled meetings of the Jack Henry users
group and other customer events and shall assist BSI in securing a visible and
prominent presence at such events, at BSI's sole expense. Upon the expiration
or earlier termination of this Agreement, BSI shall return to Jack Henry or
destroy all of BSI's copies of any Customer List in any tangible form, including
written documents and electronic storage.
3.3 Technical Support. Jack Henry shall cooperate with BSI to assure that
each Customer has access to appropriate interfaces allowing the Customer to use
the BSI Auxiliary Software with the Software. Jack Henry shall develop that
portion of each such interface that is typically developed by the licensor of
the underlying software in accordance with normal industry standards and shall
provide BSI with the specifications and information required for BSI to develop
the remainder of each such interface.
4. COMPENSATION.
4.1 Marketing Commission. In consideration of Jack Henry's performance of
its obligations as set forth hereunder, BSI shall pay Jack Henry with respect to
each BSI Auxiliary Software product, a reasonable and appropriate percentage of
the license fees actually received by BSI during the term of this Agreement from
Customers with respect to their licensing of that BSI Auxiliary Software
product. Subsequent to the execution of this Agreement, the parties shall
negotiate in good faith and execute an Addendum setting forth the marketing
commission rate for each specific BSI Auxiliary Software product; should the
parties be unable to negotiate any such Addendum, this Agreement shall be void.
Jack Henry shall not be entitled to a percentage of any fees or other amounts
charged by BSI for maintenance, custom product development or enhancement, the
provision of other services or the provision of third party hardware or
software. BSI agrees that it will not reallocate license fees to other products
or services for the purpose of avoiding or decreasing the payments due to Jack
Henry hereunder. In the event that BSI charges any Customer a single fee
representing a license fee for BSI Auxiliary Software and fees or charges for
other products or services, BSI shall be deemed to have charged the Customer a
license fee for the BSI Auxiliary Software equal to the amount that would have
been charged in like circumstances if each product and service had been billed
separately.
4.2 Payment of Marketing Commission. BSI shall calculate the marketing
commission payable to Jack Henry at the end of each calendar year quarter and
shall pay the marketing commission within thirty (30) days thereafter. At the
time it makes each payment, BSI shall provide Jack Henry with a report
describing in reasonable detail its basis for calculating the marketing
commission due.
4.3 Right of Audit. Upon reasonable advance request by Jack Henry during
the term of this Agreement (and for a period of one year thereafter), Jack Henry
shall have the right during BSI's normal business hours to audit those books and
records of BSI required to confirm the calculation of marketing commissions.
All such information shall be disclosed to Jack Henry in strict confidence and
Jack Henry may not disclose such information to any third party nor use any such
information for any purpose whatsoever other than the confirmation of the
marketing commission calculation.
5. TERM. This Agreement shall commence upon the execution hereof and
shall continue for a term of five years. Either party may terminate this
Agreement during the term hereof should the other party breach a material term
of this Agreement and fail to cure that breach within sixty (60) days after
notice from the nonbreaching party identifying specifically the nature of the
breach and the steps that must be taken to cure the breach. In addition, Jack
Henry may terminate this Agreement during the term hereof should BSI (a) fail to
develop, market and maintain the BSI Auxiliary Software in a competent manner,
consistent with accepted norms in the computer industry or (b) fail to exert
reasonable commercial efforts to assure that no significant portion of those
Customers who are licensees thereof are unable to satisfactorily use the BSI
Auxiliary Software for its intended purpose and, in either case, fail to cure
that deficiency within sixty (60) days after notice from Jack Henry identifying
specifically the nature of the deficiency and the steps that must be taken to
cure the deficiency. BSI may terminate this Agreement by notice to Jack Henry
if, at any time, there is no BSI Auxiliary Software covered by this Agreement
and the parties are unable to reach agreement with respect to an Addendum adding
software to this Agreement within thirty (30) days subsequent to such notice.
6. MISCELLANEOUS TERMS.
6.1 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given when delivered by hand or by facsimile
transmission or three days after deposit in the U.S. mail if mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice, provided that notices of a change of address
shall be effective only upon receipt thereof):
If to BSI: Broadway & Seymour, Inc.
128 South Tryon Street
Suite 1000
Charlotte, North Carolina 28202
Attention: Mr. William W. Neal
Fax: (704) 344-3542
If to Jack Henry: Jack Henry & Associates, Inc.
663 Highway 60
Monett, Missouri 65708
Attention: Mike Henry
Fax: (417) 235-1765
6.2 Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, and shall not confer upon any other person
except the parties hereto any rights or remedies hereunder. Neither this
Agreement nor any of the rights, interests or obligations hereunder may be
assigned by either party without the prior written consent of the other.
6.3 Arbitration. Any dispute arising out of or relating to this
Agreement, specifically including any dispute with respect to the amount of
royalties payable to Jack Henry hereunder, shall be resolved through arbitration
in accordance with the rules of the American Arbitration Association. The
arbitration shall be conducted in Charlotte, North Carolina. The decision of
the arbitrators shall be final and binding upon the parties and may be enforced
in any court of competent jurisdiction.
6.4 Governing Law; Jurisdiction. The execution, interpretation and
performance of this Agreement shall be governed by the internal laws and
judicial decisions of the State of North Carolina.
6.5 Interpretation. The article and section headings contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not in any way affect the meaning or interpretation of
this Agreement. As used herein, the singular shall include the plural and the
plural the singular, and the use of any gender shall be applicable to all
genders.
6.6 Entire Agreement. This Agreement, including the Exhibit hereto,
embodies the entire agreement and understanding of the parties hereto in respect
of the subject matter hereof. This Agreement supersedes all prior agreements
and understandings between the parties with respect to the transactions
contemplated hereby and may not be modified except in a writing signed by both
of the parties hereto.
6.7 Noncompetition Agreement. During the term of this Agreement and for
so long thereafter as BSI retains any Customer List in any tangible form,
including written documents and electronic storage, BSI shall not use the
Customer List to market any software product to the Customer base except
pursuant to an Addendum to this Agreement or with the prior written consent of
Jack Henry. BSI acknowledges that the foregoing restriction shall apply to any
marketing effort that targets the Customers on the Customer List, whether
through written mailing or other solicitation or personal contact. Jack Henry
acknowledges that the foregoing restriction shall not preclude BSI from
marketing software products to any third party, including a Customer, unless the
marketing effort is part of a targeted effort using the Customer List to market
the software product to the Customer base.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
the day first written above.
BROADWAY & SEYMOUR, INC. JACK HENRY & ASSOCIATES, INC.
By: /s/ William W. Neal By: /s/ Michael E. Henry
Title : Chairman and Title: Chairman and
Chief Executive Officer Chief Executive Officer