Termination and License Agreement - Exchange Applications Inc. and Carreker Corp.
TERMINATION AND LICENSE AGREEMENT This Termination and License Agreement, dated as of December 27, 2001 (the "Agreement"), is made by and between Exchange Applications, Inc., a Delaware corporation ("Xchange"), and Carreker Corporation, a Delaware corporation ("Carreker") (Xchange and/or Carreker may be individually referred to herein as a "Party" or, collectively, the "Parties"). WHEREAS, the Parties entered into that certain Xchange Reseller Agreement dated March 31, 2001 (as amended, the "Xchange Reseller Agreement"), that certain Master Agreement for Professional Services dated June 13, 2001, and that certain Software License and Services Agreement dated March 31, 2001 (collectively the "Xchange/Carreker Agreements") wherein, among other things, Carreker was appointed as a reseller of Xchange's customer solution suite known as EnAct (as defined below); and WHEREAS, the Parties desire to terminate the Xchange/Carreker Agreements and to provide for certain other rights and obligations of the Parties, all as set forth herein. NOW THEREFORE, in consideration of the premises, the mutual covenants and obligations set forth in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: SECTION 1. 1.1 On or before December 31, 2001, Carreker shall make a non-refundable payment to Xchange of one million five hundred forty thousand dollars ($1,540,000) for the fees then due under the Xchange Reseller Agreement which shall represent final payment of all obligations due and owing under that agreement, except for any obligations that are, or may come to be, due and owing pursuant to Sections 3.4, 10.1 and/or 10.2 thereof. Such payment shall be made by wire transfer of immediately available funds and such payment shall be received by Xchange no later than 11:00 AM EST on December 31, 2001. Upon execution of this Agreement, Xchange shall pay to Carreker the total outstanding amounts listed in Schedule 1 hereto. 1.2 Subject to Xchange's receipt of the payment by Carreker set forth in Section 1.1, the Xchange/Carreker Agreements shall be hereby terminated as of December 31, 2001 in all respects and shall have no further force or effect, except as set forth in the last sentence of this Section 1.2. Effective as of December 31, 2001, the Parties hereby, except as set forth in the last sentence of this Section 1.2, mutually release, acquit and discharge each other and each of the other's officers, owners, directors, employees and agents and against any and all known or unknown, direct, indirect, special, incidental, consequential, exemplary, multiple, incidental, liquidated or unliquidated, actions, causes of action, chooses in action, suits, debts, dues, damages, liabilities, accounts, bonds, covenants, contracts, claims, demands or other obligations whatsoever, in law or in equity, which either Party ever had, now has or hereafter shall or may have by reason of or in any way arising out of any cause, matter or thing whatsoever with respect to the Xchange/Carreker Agreements. Except as set forth in the last sentence of this Section 1.2, each of the parties hereby irrevocably covenants to refrain from, directly or indirectly, asserting any claim or demand, or commencing, instituting or causing to be commenced, any action or proceeding of any kind against the other Party based on any matter which is the subject of the immediately preceding sentence. Upon the reasonable request of the other Party, each Party agrees to execute and deliver any and all additional documents and instruments that are or may be <Page> -2- necessary and/or desirable to effectuate the provisions of this Section 1.2. Notwithstanding the foregoing provisions of this Section 1.2, however, the provisions of Sections 3.4, 10.1 and 10.2 of the Xchange Reseller Agreement shall survive. 1.3 On or before December 31, 2001 Carreker shall, and hereby agrees to, voluntarily dismiss with prejudice that certain Plaintiff's Original Petition filed by Carreker against Xchange (and certain other parties) in District Court of Dallas County, Texas on November 13, 2001 (Case No. DL 9885). 1.4 Subject to Section 2.5, upon execution of this Agreement and until the License (as defined below) is terminated, Xchange agrees not to renew, revise, or extend any agreements, or enter into any new agreements, with customers for EnAct in the Financial Services Market (as defined below). 1.5 Subject to Xchange's receipt of the payment by Carreker set forth in Section 1.1, Xchange shall transfer to Carreker all of its right, title and interest in and to the equipment listed in Schedule 3 hereto (the "Equipment") on December 31, 2001. Xchange shall make all such Equipment available to Carreker at its current location(s) and Carreker shall be responsible for all delivery arrangements with respect thereto. The risk of loss with respect to all the Equipment shall pass to Carreker immediately upon the date hereof. From the execution of this Agreement until the delivery of the Equipment to Carreker (but in no event more than one month after the execution of this Agreement), Xchange shall take commercially reasonable efforts to ensure that the Equipment is not damaged or otherwise impaired. THE EQUIPMENT IS TRANSFERRED BY XCHANGE "AS IS" WITHOUT WARRANTY OF ANY KIND. XCHANGE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN WITH RESPECT TO THE EQUIPMENT INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL XCHANGE BE LIABLE FOR DIRECT SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, CONSEQUENTIAL, TORT OR OTHER DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES RESULTING FROM OR IN ANY WAY RELATED TO THE EQUIPMENT, EVEN IF XCHANGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE. SECTION 2. 2.1 Subject to the receipt of the payment by Xchange from Carreker pursuant to Section 1.1 and the other the provisions of this Agreement, Xchange hereby grants to Carreker an irrevocable, nonexclusive, royalty free, perpetual license (the "License") in and to all versions of EnAct (as defined below), including, without limitation, the right to use, develop, modify, enhance, copy, distribute, and sublicense EnAct, such License to take effect as of December 31, 2001. Subject to all end-user licenses and other end-user agreements currently in effect, to the HP Agreements (as defined below) and to Section 2.5, the grant of the License shall be exclusive in the Financial Services Market (as defined below). Carreker may, pursuant to the License, employ EnAct in the development of software programs and products, including, but not limited to, products having the same look, feel, and functionality as EnAct or products which may be competitive with EnAct and which would constitute infringement but for the license granted herein without accounting to or compensating Xchange in any way. Xchange hereby acknowledges and agrees that Carreker shall own all proprietary rights, including without limitation patent, copyright and trade secret rights in and to any derivative work created as a <Page> -3- result of this License and Xchange shall not acquire any rights, express or implied, to such derivative work. Carreker may, pursuant to the License, market, sell, license, sublicense or otherwise distribute EnAct without obligation to Xchange other than as set forth in this Agreement and may eliminate all reference to Xchange in any software or documentation of EnAct. The term "HP Agreements" means the following agreements: Action Systems Certification and Reseller Agreement by and between Action Systems Inc. and Hewlett-Packard Company dated September 30, 1998; Agreement dated October 1, 1999 by and between Action Systems, Inc., Hewlett-Packard and HP-Brazil; Agreement dated February 1, 2000 by and between Action Systems, Inc. and Hewlett-Packard Brazil; Letter Agreement dated February 2, 2000 by and between Hewlett Packard and Action Systems, Inc.; Master Agreement for Professional Services dated August 14, 2000 by and between Xchange and HSBC Bank Brasil S.A. 2.2 Xchange shall, on or before January 1, 2002, deliver to Carreker (a) one copy of the following materials (in machine readable form): source code, database scripts, object code and version control repositories for each version of EnAct, both generic and client specific (if and to the extent that client specific materials are reasonably available), that is currently in development or has been commercially released and (b) one electronic copy (or one written copy if only available in written form) of all EnAct documentation and/or courseware that has not previously been delivered to Carreker (if reasonably available). 2.3 Xchange may terminate the License immediately upon written notice if Carreker fails to meet its obligations set forth in Sections 1.1 or 1.3. 2.4 As long as the License is in effect, but subject to Section 2.5, Xchange agrees not to distribute any Restricted Products and Services (as defined below) to the Financial Services Market. The term "Restricted Products and Services" means (a) products or services created by Xchange after the date hereof into which Xchange incorporates any component of EnAct, (b) products or services of Xchange that exist, or are currently in development, on the date hereof, into which Xchange incorporates any component of Enact after the date hereof and (c) products or services of Xchange into which Xchange has incorporated substantially all of the components of EnAct. Notwithstanding the foregoing, the term "Restricted Products" shall not include any products or services into which Xchange incorporates or has incorporated any component of EnAct if such incorporated component was incorporated into or included within another Xchange product or service (other than EnAct) prior to the date hereof. For purposes hereof, the term "incorporates (or incorporated) any component of EnAct" means the inclusion of any component of the Software, Documentation or Methodologies of EnAct in a manner which would constitute copyright infringement of EnAct under Title 17 of the United States Code (the "Copyright Act"), provided that such term shall not include any such inclusion if (a) the component is, or is based upon or derived from, material, ideas or concepts in the public domain and therefore not protected under the Copyright Act, (b) the component in question is insubstantial in amount and/or value and/or (c) the inclusion of such component was not done knowingly. Notwithstanding the foregoing sentence, if any such inclusion was not done knowingly and the product or service in question is distributed to the Financial Services Market (and (a) and/or (b) of foregoing sentence do not apply), Xchange shall use reasonable commercial efforts to remove the component in question from the applicable product or service for the Financial Services Market but Xchange shall not otherwise be liable to Carreker therefor. 2.5 Notwithstanding anything in this Agreement that may be to the contrary, this Agreement is not intended to, and shall not, restrict or prevent Xchange from performing <Page> -4- maintenance, development, support and/or any other services pursuant to existing contracts for end users of EnAct. 2.6 The term "EnAct" means the Xchange EnAct customer relations management solution suite described in Schedule 2, but only as described on Schedule 2. The term "Financial Services Market" means institutions that provide Banking Services to businesses and/or individuals; provided, however, that if any such institution provides services and products other than Banking Services and Banking Services are not its primary business, the institution must have total Banking Services assets or Banking Services assets under management in excess of ten billion dollars ($10,000,000,000). Except as set forth in the immediate following sentence, in no event shall the Financial Services Market include institutions that only provide brokerage, investment banking or services other than Banking Services. In addition, the term Financial Services Market shall also include NRMA, Standard Bank-Insurance, Axa (fka Equitable), First National Bank Insurance, Liberty Life, NEDCOR Insurance, Scottish Widows, Royal & Sun Alliance, Thomas Cook, Cigna, Dreyfus, Farm Credit Corp., and Saskatchewan Wheat Pool. The term "Banking Services" means loans, checking, savings and other deposit account services or trust services. SECTION 3. 3.1 Carreker acknowledges that it may come into possession of Confidential Information (as defined below) of Xchange, and that such Confidential Information may be used by Carreker solely for the purposes permitted by this Agreement. All Confidential Information shall be received and held in confidence by Carreker, subject to the provisions of this Agreement. Carreker acknowledges that it will not obtain any rights of any sort in or to the Confidential Information as a result of such disclosure and that any such rights must be the subject of separate written agreement(s). Carreker shall take all reasonable steps, including at least steps fully commensurate with those employed by Carreker for the protection of its own Confidential Information of like importance, to protect the Confidential Information. Nothing herein shall prevent Carreker from disclosing all or part of the Confidential Information as necessary pursuant to the lawful requirement of a governmental agency or when disclosure is required by operation of law; provided, however, that prior to any such disclosure Carreker shall (i) promptly notify Xchange in writing of such requirement to disclose and (ii) cooperate fully with Xchange in protecting against any such disclosure or obtaining a protective order. Any information so disclosed shall continue to be treated as Confidential Information hereunder. 3.2 "Confidential Information" means all proprietary and confidential information of Xchange that has been designated as confidential, including without limitation trade secrets, technical information, business information, sales information, customer and potential customer lists, sales plans, inventions, developments, discoveries, software, know-how, methods, techniques, formulae, data, processes and other trade secrets and proprietary ideas or information, whether or not protectable under patent, trademark, copyright or other intellectual property laws except any portion thereof which Carreker can prove was: (a) known to Carreker, before receipt thereof under this Agreement or the Xchange Reseller Agreement; (b) disclosed to Carreker by a third person who is under no obligation of confidentiality with respect to such information and who otherwise has a right to make such disclosure; or (c) or becomes generally known through no fault of Carreker. Carreker hereby acknowledges that all software, documentation and other materials and components of EnAct, including without limitation the items identified in Schedule 2 that qualify as Confidential Information pursuant to the immediate preceding sentence, are hereby, or have been, designated by Xchange as confidential. <Page> -5- SECTION 4. 4.1 Each Party shall indemnify, defend and hold harmless the other Party (including such other Party's partners, officers, directors, employees, agents and affiliates) from and against any and all expenses (including but not limited to reasonable attorney's fees and costs of investigation and defense), judgments and settlements arising out of or related to any third party claims or actions of breach of contract, negligence or willful misconduct by the indemnifying Party. 4.2 Xchange shall indemnify, defend and hold harmless Carreker (including Carreker's partners, officers, directors, employees, agents and affiliates) from and against any and all expenses (including but not limited to reasonable attorney's fees and costs of investigation and defense), judgments and settlements arising out of or related to any third party claims or actions of infringement by EnAct, in the form delivered to Carreker under this Agreement, of any now currently existing or now pending patent, copyright or trade secret, except for any claim or action which is the subject of Section 4.3 below. 4.3 Carreker shall indemnify, defend and hold harmless Xchange (including Xchange's partners, officers, directors, employees, agents and affiliates) from and against any and all expenses (including but not limited to reasonable attorney's fees and costs of investigation and defense), judgments and settlements arising out of or related to any third party claim or action which arises out of or relates in any way to, in whole or in part: (i) any addition to or modification of EnAct by Carreker; (ii) the use by Carreker or its customers and/or licensees of a superseded or altered release of EnAct if such claim or action would have been avoided by the use of a current or unaltered release of EnAct; (iii) the combination, operation or use by Carreker or its customers and/or licensees of any component of EnAct furnished under this Agreement with software, hardware or other materials not furnished by Xchange; or (iv) use of EnAct by Carreker or its customers and/or licensees in any manner other than as EnAct is intended, by Xchange, to be used on the date hereof. 4.4 The rights of either Party (the "Indemnified Party") to the indemnification from the other Party (the "Indemnifying Party") set forth in Sections 4.1, 4.2 or 4.3 above are subject to the Indemnifying Party receiving from the Indemnified Party (a) prompt written notice of any such claim (but failure to give such prompt notice shall only be a disqualification to indemnification to the extent that such failure results in material and permanent prejudice to the defense of the claim), and (b) all reasonable requested assistance, in the defense or settlement of such claim or suit. The Indemnifying Party shall provide reimbursement for out of pocket expenses incurred by the Indemnified Party in providing requested assistance hereunder. The Indemnifying Party shall be given the full and complete authority and control of the defense or any negotiated settlement relative to the subject matter of this Section 4.4; provided that the (i) Indemnified Party shall be entitled to appear, at its own expense, at any hearing or proceeding related thereto and (ii) any settlement or resolution entered into by the Indemnifying Party must completely release the Indemnified Party from all liability related to the claim. In no event shall the Indemnifying Party be responsible for the settlement of any claim entered into by the Indemnified Party unless such Indemnifying Party (x) was given full notice of the terms and conditions of the settlement and (y) has expressed its approval to such settlement in writing. 4.5 The Parties' respective rights and remedies for the matters described in this Section 4 shall be limited to the indemnification set forth in this Section 4. If any action or claim <Page> -6- of the type described in Section 4.2 or 4.3 is commenced or threatened or, in the opinion either Party, is likely to be commenced or threatened, the Party that bears, or would bear, the obligation to provide indemnification pursuant to section 4.2 and 4.3 with respect to such action or claim shall take commercially reasonable efforts to provide and/or procure (but, except for the indemnification provided in Section 4.2 and 4.3, shall not have any liability to the other Party for any failure to so provide and/or procure) a license, right, modification, replacement or other solution to allow the continued use or other exploitation of the intellectual property in question or to otherwise settle, avoid or resolve the claim or action in question. Notwithstanding the foregoing, in the event that an injunction is issued which prevents the use of the intellectual property in question and neither Party is able, after commercially reasonable efforts, to produce a modification or replacement for the infringing intellectual property, the indemnifying Party agrees to use commercially reasonable efforts to obtain, or assist the other Party to obtain, a license on commercially reasonable terms for the infringing intellectual property. SECTION 5. 5.1 Each of the Parties hereby represents, warrants and covenants that it has full authority to enter into this Agreement and that the Agreement is its valid and binding obligation. 5.2 Xchange represents and warrants that it possesses all necessary rights to grant the License; provided, however, that Carreker's sole remedy for any breach of this warranty shall be the indemnification provided in Sections 4.2 and 4.5 above. 5.3 ENACT IS NOT ERROR-FREE AND IS BEING PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. XCHANGE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN WITH RESPECT TO ENACT INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, NON-INTERFERENCE WITH ENJOYMENT, ACCURACY, SECURITY, COMPATIBILITY, INTEGRATION, VALIDITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. CARREKER ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY PROVIDED HEREIN NO OTHER WARRANTIES WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT HAVE BEEN MADE TO CARREKER BY OR ON BEHALF OF XCHANGE OR OTHERWISE FORM THE BASIS FOR THE BARGAIN BETWEEN THE PARTIES. 5.4 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, TORT OR OTHER DAMAGES (EXCEPT DIRECT DAMAGES), INCLUDING WITHOUT LIMITATION ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, CLAIMS BY THIRD PARTIES OR LOSS OF BUSINESS ARISING OUT OF, IN CONNECTION WITH OR IN ANY WAY RELATED TO ENACT OR THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE. EXCEPT FOR BREACHES OF SECTIONS 4.1, 4.2 AND 4.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR DIRECT DAMAGES IN EXCESS OF ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000). SECTION 6. <Page> -7- 6.1 This Agreement and the Schedules attached hereto set forth the entire agreement between the Parties concerning the subject matter hereof and supersede all other agreements or understandings, written or oral, relating thereto, except for that certain Work Order dated October 28, 2001. No representation, promise, inducement or statement of intention has been made by either Party which is not set forth in this Agreement and neither Party shall be bound by or liable for any alleged representation, promise, inducement or statement of intention not so set forth. No amendment or modification of this Agreement or any provision hereof shall be binding upon any Party hereto unless made in writing and signed by the Parties. 6.2 This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective successors, legal representatives, and permitted assigns; provided, however, that this Agreement is personal to both Carreker and Xchange. 6.3 This Agreement may not be assigned or otherwise transferred by either Party to any third party other than as provided herein without the prior written consent of the other Party; provided, however, that the consent of the other Party shall not be required in the event that this Agreement is assigned to a purchaser of all, or substantially all, the assigning Party's assets or equity. Any attempt by either Party to assign or transfer this Agreement, or any of the rights or duties contained herein other than as specifically set forth in this Section 6.3 shall be void. 6.4 This Agreement is not intended in any way to create the relationship of employer and employee, independent contractor or principal and agent between Xchange and Carreker and under no circumstances shall Carreker be considered an employee or agent of Xchange. Neither Party shall have the authority to vary, alter or enlarge any of the other Party's obligations hereunder or to make representations, warranties or guarantees on behalf of such other Party. 6.5 No waiver of any default hereunder shall operate as a waiver of any other default or of a similar default on a future occasion. No waiver of any term or condition hereof shall be effective unless the same shall be in writing and signed by an authorized representative of the Party waiving such term or condition. No remedy referred to in this Agreement is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to herein or otherwise available at law or in equity. 6.6 Neither Xchange nor Carreker shall be liable for any delays in their performance of any obligations hereunder due to causes beyond its reasonable control, including, but not limited to, fire, strike, war, riots, acts of any civil or military authority, acts of God, unavailability or shortages of materials or equipment, failures or delays in delivery of vendors and suppliers or delays in transportation. 6.7 Each Party hereto agrees that it will not make any public disclosure of the specific financial terms of this Agreement without the prior written consent of the other Party hereto and neither Party shall use the other Party's name in any marketing, promotional or other materials without the express prior written consent of such other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing provisions of this Section 6.7, consent shall not be required in any event if such disclosure is required by applicable law, rule or regulation; provided, however, that with respect to any press release required by any rules or regulations of the Securities and Exchange Commission, the disclosing Party shall provide the other Party with a copy of such release within a reasonable time prior to such disclosure. <Page> -8- 6.8 This Agreement shall be governed by, and construed and enforced with, the substantive law of the State of Delaware, without giving effect to choice of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any of the transactions contemplated by this agreement. 6.9 The Parties agree that this Agreement is entered into in connection with the compromise, resolution and settlement of the legal proceeding referenced in Section 1.3 above and that such compromise, resolution and settlement shall not be taken as an admission of liability by any Party, but rather, such liability is expressly denied; nor shall this Agreement be admissible in any proceeding or cause of action as an admission of liability against the Parties. 6.10 Any notices required to be delivered by one Party or another under or in connection with this Agreement shall be deemed sufficiently given if actually received or if sent by certified mail, return receipt requested, to the applicable individual and address indicated below: If to Xchange: Exchange Applications, Inc. One Lincoln Plaza 89 South Street Boston, Massachusetts 02111 Attn: President If to Carreker: Carreker Corporation 4055 Valley View Lane, Suite 1000 Dallas, Texas 75244 Attn: General Counsel 6.11 In the event that any covenant, condition or other provision herein contained is held to be invalid, void, or illegal by any court of competent jurisdiction, the same shall be deemed to be severable from the remainder of this Agreement and shall in no way affect, impair, or invalidate any other covenant, condition, or other provision herein. 6.12 This Agreement may be executed in one or more counterparts each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Execution and delivery of this Agreement by facsimile transmission shall constitute execution and delivery of this Agreement for all purposes, with the same force and effect as execution and delivery of an original manually signed copy hereof. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] <Page> -9- IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement as of the date filed above written. CARREKER CORPORATION EXCHANGE APPLICATIONS, INC. By: John D. Carreker, Jr. By: F. Daniel Haley --------------------- --------------- John D. Carreker, Jr., CEO F. Daniel Haley, CFO (Name and Title) (Name and Title) <Page> SCHEDULE 1 INVOICE # AMOUNT 17275 $4,500.00 17272 $42,581.30 17271 $28,023.21 16588 $32,473.37 16587 $15,082.95 16586 $ 2,250.00 16585 $17,625.00 PS-1010 $10,673.65 PS-1017 $2,385.80 TOTAL $155,595.28 ======================= <Page> SCHEDULE 2 PRODUCT SCHEDULE EnAct is defined as the customer relations management product currently marketed by Xchange under that name and consists of (a) the Software ("Software") and Documentation ("Documentation") set forth below and (b) the methodologies (the "Methodologies") disclosed by Xchange to Carreker in the Documentation and Software which Xchange deems necessary for Carreker to deliver the local marketing "best practices" consulting services (the "Consulting Services") as described in the Documentation. EnAct is comprised of but not limited to the following: SOFTWARE -------- ENACT SOFTWARE VERSIONS - INCLUDING 1.2.x, 1.3.x, 2.2, 2.2.1, 2.2.2, 2.3, 2.3a, 3.0, 3.0.1, 3.1, 3.1.1, ALL POST-3.1 RELEASES, AND ALL DERIVATIVE WORKS ENACT SOFTWARE TUTORIAL - TUTORIAL GUIDE: VERSIONS 3.x, 2.x, 1.x DOCUMENTATION ------------- SOFTWARE DOCUMENTATION ---------------------- User Guides Administration Guides Installation Manuals Troubleshooting Guides EnAct Primers Release Notes Release Announcements (to the extent that such software documentation exists) BUILDING INVESTMENT SALES ------------------------- Admin Guide Facilitator Tool Kit Participant Text Spines ENACT ----- EnAct Consultant Certification Case Study Material for EnAct Certification Decoders EnAct Facilitator Certification EnAct Software Pre-work Practice Sets Fac Cert Agnd Tchbck Assignments Fac Cert Guide for ASI Bus Cons Fac Cert Prog Ldrs FG EnAct Software Pre-work Practice Sets Participant Materials Profiling for Success Software Manuals EnAct 2.2 User Training Materials <Page> -2- Participant's Guide Facilitator Certification Process Administrator Candidate Integration Kit Facilitator Materials Facilitator Guide, Binder 1 Facilitator Guide, Binder 2 Facilitator Presentation Facilitator's Notes Coach's Workshop Facilitator Guide Coaching Presentation Facilitator 1 Facilitator 2 Participant Materials Coaches Tool Kit 1 Coaches Tool Kit 2 Manager's Tool Kit Market Plan Presentation Tool Kit Playbook Profiling for Success Coach's Tool Kit Tool Kit Leading Market Competence Coach's Tool Kit Facilitator's Guide Handouts Participant Workbook REACTS Game Tool Kit Managing Local Markets Facilitator Materials Coach's Guide Coach Handouts Handouts Overheads Overheads Facilitator Guide Facilitator Handouts Handouts 1 Handouts 2 Overheads Overheads 1 Overheads 2 Overheads Sample MAC-IMP Kit MAC.IMP Kit MAC.IMP Technology Transfer Facilitator Tool Kit Wallcharts Facilitator Wallcharts <Page> -3- MLM Materials Other Call Center Session I Overheads Session II Session III Communication Tools Core Tactics Executive Constancy Tool Kit Implementation Guidelines Facilitator's Certification Handouts Session I Session II Quick Study Article Right Article Handouts and Articles Connecting Business Goals to SSE Market Plan Connecting Business Handout Customer Roundtable Handout (English) Customer Roundtable Handout Executive Summary Handout Local Market Tactics Handout In Store Copy of Facilitator's Guide In Store (English) EnAct In Store Facilitator's Guide In Store (English) Implementation Guide In Store (English) Implementation Guide for EnAct In Store Part Text In Store (English) Part Text for EnAct In Store MLM for Product Managers Admin Guide Implementation Guidelines Participant Text Pre-work MLM for Support Centers Admin Guide Implementation Guidelines Participant Text MLM for Telephone Banking Centers Admin Guide Implementation Guidelines Participant Text Pre-work Nuts and Bolts Quick-Start Managing Tactical Practices Coaches Tool Kit Participant Workbook EPS Files Participant Text Tools REACTS Game Small Units <Page> -4- Discarded Parts Handouts Streamlined MLM.BGuide Session I Session II Session III Admin Guide Support Revisions Overheads.Handouts PC Word Docs Integration Handouts Session I Session II Integration Market Plan Year 3 and Beyond Facilitator Guide Participant Text Overheads Participant Materials Coach's Tool Kit Coach's Tool Kit Roadmap Implementation Guide Implement Handout 1 Implement Handout 2 Implement Session 1 Implement Session 2 Implement Session 3 Kick-Off Meeting Guide Evaluation Handout Manual Mining Local Markets PPT Mining Nuts and Bolts Nuts and Bolts Managing Tactical Performance Handouts Playbook Tool Kit District Manager Tool Kit Market Management Routines Facilitator's Guide Tool Kit Relationship Banking Program 1 Building Commercial Business Administrator Handouts Participants Product Skills Skill Card Skill Practice A Skill Practice B <Page> -5- Wall Charts Program 2 Building Retail Business Administrator Participants Product Profiles Skill Guide Skill Practice A Skill Practice B Wall Charts Program 3 Managing Business Program 3A Managing Commercial Business Administrator Participant Skill Card Wall Charts Program 3B Managing Retail Business Administrator Participant Skill Card Wall Charts Program 4 Building Client Relationships Program 4A Making Joint Calls Administrator Participant Sample Memo Skill Card Skill Practice A Skill Practice B Skill Practice C Wall Charts Program 4B Maturing the Relationship Administrator Participant Skill Card Skill Practice A Skill Practice B Wall Charts Program 4C Negotiating With Clients Administrator Participant Skill Card Skill Practice A Skill Practice B Wall Charts Program 5 Enhancing Client Relationships Facilitator Participant Service Profile Skill Card Wall Charts Barriers Clarify Needs Client Compliants Enhancing Product Skills <Page> -6- Relationship Teller Relationship Transactions Special Explanation Program 6 Building Independent Business Program 6A Understanding Business Lending (BIB) Facilitator 1 Participant 1 Program 6B Talking Business with Business (BIB) Facilitator 2 Participant 2 Program 6C Business Markets and Products (BIB) Evaluation Facilitator 3 Participant 3 Program 7 Building Trust Business Program 7A Institutional Trust Administration (BTB) Overview Administrator Materials Administrator Overhead Wall Charts Participant Materials Evaluation Extra Form Participant Skill Card Program 7B Building Trust Sales (BTB) Administrator Materials Administrator Wall Charts Participant Materials Evaluation Extra Forms Participant Skill Cards Program 7C Personal Trust Administration Summary Administrator Materials Administrator Wall Charts Participant Materials Evaluation Extra Forms Participant Prework Skill Cards A Skill Cards B Program 7D Personal Trust Sales (BTB) Administrator Materials Administrator Participant Materials Evaluation Extra Forms Participant Skill Card <Page> -7- Program 8 Market-Driven Sales Management Program 8A Market-Driven Sales Management Facilitator Handouts Sales Meeting Kit Sales Management Assessment Survey Tool Kit Wall Charts Program 8B Account Management Sales and Service Classroom Leader's Overheads Tool Kit Program 8C Proactive Sales and Service Classroom Handouts Leader's Overheads Tool Kit Wall Charts Program 8D Responsive Sales and Service Classroom Handouts Leader's Overheads Tool Kit Program 8E Responsive Customer Service Classroom Program 8F Meeting Client Needs Classroom Handouts Leader's Overheads Program 8G Leading Market Management Leading Market Management Handouts Leading Words Sales Management Assessment Survey Sales Management Assessment Survey Program 9 Strategic Selling Program 9A Coaching Sales Performance Overview Participant Pre-session Program 9B Making Effective Presentations Overview Participant Pre-session Program 9C Strategic Prospecting Administrator Manager's Prep Packet Participant Preparation Packet Telephone Script <Page> -8- Sales and Sales Management Modules Coaches Tool Kit Implementation Guide Handouts Mac-Imp Transparencies Users Guide Sales and Service Skills for Office Assistants Facilitator Materials Participant Tool Kit Small Business Banking Admin Guide Handouts Overheads Wall Charts Art of Telecontact Coach's Tool Kit Tool Kit Winning Referrals Coach's Tool Kit Participant's Tool Kit Videos Managing Retail Business Building Retail Business Building Commercial Business Maturing the Relationship-Commercial Making Joint Calls Negotiating with Clients Enhancing Client Relationships EnAct-Step by Step Tom Brown Market Competence MDSM Real People Speak Out Delivering on the Promise CD's The Art of TeleContact with Participant's Tool Kit Winning Referrals with Participant's Tool Kit Profiling for Success with Participant's Tool Kit & Coaches Tool Kit 1+1 Executive Constancy Putting the R Back in CRM Delivering on the Promise MLM-Franchise at Risk The Organizational Impact of Managing Local Markets Quarterly review Value Assessment Tom Carnes Article "Quick Study: PDQ Printing" article <Page> -9- "How To Be Right 95% of The Time" article Decision Document (Wells) MLM Coaches Facilitator Guide MLM Market Guide MLM Launch Kit (or Guide) Mini Tool Kit-Bancomer Team Leader's Tool Kit-Westpac MLM Organizational Alignment Tool Kit MLM Technology Transfer Candidate Guide-Standard Bank Core Issues Business Banking Sales Training Participant Text (NRMA) EnAct Manager's Tool Kit In-Store (SunTrust) EnAct Manager's Tool Kit Non In-Store (Sun Trust) EnAct Market Plan Presentation Tool Kit In-Store (Sun Trust) EnAct Performance Banking Playbook (Sun Trust) EnAct Performance Banking Wall Charts (SunTrust) EnAct Playbooks In-Store (Sun Trust) EnAct Coaches Tool Kit In-Store (Sun Trust) EnAct Regional President's Tool Kit (Sun Trust) Managing Tactical Performance Coaches Tool Kit (Sun Trust) Managing Tactical Performance Playbook (F&M) Managing Tactical Performance District Manager's Tool Kit (F&M) Managing Tactical Performance Tool Kit (F&M) Facilitator Certification Process Candidate Guide (Wells) Market President and Market Area Manager's Tool Kit Store Manager's Tool Kit (Wells) District Manager's Tool Kit (Wells) EnAct Integration Tool Kit (Wells) Sales Management Process Participant Manual (FCC, Fidelity Investments) Sales Process Training Participant Manual (FCC) Sales and Service Training for Office Assistants Participant Tool Kit (FCC) Sales and Service Training for Office Assistants Facilitator Guide (FCC) EnAct Quarterly Market Plan Presentation Guides (F&M) MLM Management Guide (Firstar) MLM Special Session Overview Booklet (Firstar) MLM Special Session Overview Sample Data Kit Meeting Client Needs Tool Kit (Firstar) Meeting Client Needs Classroom Guide (Firstar) Market Driven Sales Tool Kit (Firstar) Market Driven Sales Classroom Guide (Firstar) MLM Management Guide (Firstar) MLM Integrated Market Plan (Firstar) MLM Branch Guides (Firstar) MLM Subscriber Services (sold to Standard Bank) MLM Refresher-Year 3 and Beyond Participant Text MLM Communication Tools MLM for Telephone Call Centers Participant Text MLM for In-Store Branches Participant Text MLM for Smaller Units/Satellites REAC Card Game Facilitator's Certification MLM Refresher-Year 2 MLM Refresher-Year 3 and Beyond Facilitator Guide MLM for Telephone Call Centers Implementation Guidelines Facilitator Guide <Page> -10- MLM for In-Store Branches Implementation Guidelines Facilitator Guide Internal Documents MLM Executive Constancy Tool Kit Handouts Sun Trust Wells ExTraCo Farm Credit Farmers and Mechanics Fidelity Investments Firstar Summit Support Documents Equity Tactic Oarpt.1-20-00. OA Report Wells at Work Sarah Morgan Sylvester VA SPRA Cover Letter SPRA Branch Manager SPRA Marketing Data Manager SPRA Marketing Manager SPRA Retail Banking Executive SPRA Bank Chief Executive Officer WA Value Assessment Meeting Agenda Best Practices Bank Leumi Le BankWest VA Final Business Consulting Cost Estimate Worksheet Integration Meetings with Critical Questions Resource Allocation Tactic_bp VA 6.23.00 VA letter 2 Valueassessment ValueAssessMtgAgendas Wells Fargo Minimums WF planning action items 2_19_2000 Business Consultant Facilitator Criteria of Measurements for Success Customer Value draft for Wells Napa rev EnAct 30 Technical Requirements EnAct Circle details ver JC EnAct data fields example one year old F&M article_long version Facilitator Candidate How to present the license pricing Job descriptions.short Old results Process overview Results report FINAL Sales Service Delivery Sr Business Consultant 031501 Subset of overview Chicago <Page> -11- SunTrust second installation phase SunTrusts opportunity cost of waiting Westpac Business Case 6-17-99 Liddy <Page> -12- SCHEDULE 3 ---------- EQUIPMENT ENACT DEVELOPMENT, MAINTENANCE AND SUPPORT EQUIPMENT 1- Dell PowerEdge 6100/200 1- Sun Enterprise 250 Server w/Monitor & Keyboard 14- Dell XPS R400 PCs 3- PCs (Unknown Type) 1- Compaq Monitor V500 1- Viewsonic Monitor P810 1- Compaq 35/70 GB DLT 1- HP 5Si Printer 1- Nokia VPN-1 Appliance - Firewall 1- Nortel/Bay Accelar 1100R-B Switch 1- Cisco 2600 Router 9-Dell Monitors 1- Compaq Rack (w/shelves) 1- Dell PowerVault 205 1- Box Marked w/Misc. Items 12- Boxes Marked- Judith Semper 10- Dell Keyboards 1- Box w/power supplies & floppies 8- Boxes Marked - Telephone System 3- Boxes w/Cables & Books 2- Black Server Racks 2- Battery UPS Units (1 - APC & 1-Matrix 5000) 12- Pairs of Altec PC Speakers 1 - Dell PowerEdge 1300 (dalinfo1) 1 - IBM Infinity 500 (devbase1) ENACT PRODUCTION EQUIPMENT FOR TRAINING MATERIALS 1 HP Laser Jet 8000N Printer 1 Box of toner for HP Laser Jet 8000N Printer 1 HP Scan Jet ADF Scanner 1 Tektronix Phaser 850 1 box of Black Wax for Tektronix Phaser 850 1 box of Magenta Wax for Tektronix Phaser 850 1 box of Cyan Wax for Tektronix Phaser 850 1 box of Yellow Wax for Tektronix Phaser 850 2 Dell Optiplex GX 110 Computers 2 Dell Monitors 2 Dell Keyboards 2 Mouse 1 GBC Model Magna Punch w/two hole punch cartridges 1 GBC Model 110EB-2 Comb inserter 1 GBC Modular Series CC2700 Coil inserter <Page> -13- 1 Crystal-Vision Series 3000S Shrink Wrap System 1 Franklin Electric Paper Drill Model JO 2 APC Battery Back-UPS 6 HON Filing Cabinets 1 Licenses of Adobe Page Maker 5.0 1 Licenses of Adobe Page Maker 6.5 5 Licenses of Page Maker 6.5 1 Licenses of Page Maker 6.0 7 Licenses of Adobe PhotoShop LE 1 Licenses of Adobe PhotoShop Upgrade 4.0 1 Licenses of Adobe PhotoShop 5.5 1 Macromedia Fireworks 2 1 Adobe Acrobat 3.0 1 Adobe Acrobat Reader 1 Win-NT 4.0 Workstation 1 Freehand Accessory 1 Freehand 7 1 Freehand 5 - All boxes of Courseware & Training materials in Dallas Materials Control (MC) center