Xchange Reseller Agreement [Amendment No. 1] - Exchange Applications Inc. and Carreker Corp.
AMENDMENT NO. 1
TO THE
XCHANGE(R)
RESELLER AGREEMENT
This Amendment No. 1 to the XCHANGE Reseller Agreement, made as of the 31st day
of March, 2001, by and between Exchange Applications, Inc., a Delaware
corporation having a principal place of business at One Lincoln Plaza, 89 South
Street, Boston, Massachusetts 02111 ("Xchange"), and Carreker Corporation, a
Delaware corporation having a principal place of business at 4055 Valley View
Lane, Suite 1000, Dallas, Texas 75244 ("Carreker") is effective on the 30th day
of June 2001. Capitalized terms used but not defined herein are as defined in
the Agreement.
The parties agree as follows:
1. Section 1. DEFINITIONS is modified to replace the defined terms
"Initial Term" and "Revenue" with the following:
"Initial Term" means the time period from March 31, 2001 through
September 30, 2002.
"Revenues" means all income or fees of any kind generated by Carreker
(except income or fees generated as a result of work done for Xchange),
and recognized in accordance with generally accepted accounting
practices, arising out of, relating to, or in connection with EnAct, or
any of its components, including but not limited to all royalty fees,
service fees, consulting fees, revenues generated pursuant to any
Sublicense and Services Agreements and all other income, revenues and
fees related to the rights afforded to Carreker pursuant to this
Agreement (however denominated); provided, however, that Revenues shall
not include any Carreker Maintenance Fees that are separately stated
and do not exceed 20% of the license fee, and to the extent that
Carreker Maintenance Fees are bundled with the license fee for the
software and not separately stated, excluded only to the extent that
such Carreker Maintenance Fees when bundled with license fees, do not
exceed 16.66% of the total amount of the bundled license and
maintenance fees charged pursuant to such Sublicense and Services
Agreements.
2. Section 2.1 is replaced in its entirety with the following:
2.1 Provided that the appointment does not conflict with any existing
Xchange agreements, Xchange hereby appoints Carreker as a world-wide
reseller of EnAct and Carreker hereby accepts such appointment. This
appointment (i) is subject to the provisions and is only for the Term, (ii)
is personal to Carreker and (iii) may not be assigned or transferred in any
way, in whole or in part, nor may Carreker appoint sub-resellers of any
kind. Carreker agrees that, in acting as a reseller for Xchange, it will at
all times conduct itself in accordance with its warranties, duties and
obligations set forth in this Agreement. Provided that Carreker is in full
compliance with its obligations under this Agreement and has paid all
Guaranteed Royalties and Royalty Fees as required by Section 3, this
reseller appointment shall be exclusive for the Subject Field in the
Territory during the Initial Term and any Renewal Term provided that the
exclusivity does not conflict with any existing Xchange agreements. With
the exception of the joint marketing of Special Transactions and subject to
the provisions of Section 2.7, and provided that Carreker is not in breach
of this Agreement, Xchange will not market EnAct, or authorize any third
party to market or license EnAct, to any customers in the Subject Field
within the Territory during the Initial Term or any Renewal Term.
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3. Section 4.1 is replaced in its entirety with the following:
4.1 During the Initial Term and for so long as this Agreement is in
effect, Carreker shall have the option to renew this Agreement for
additional terms (each a "Renewal Term") beginning with the period from
October 1, 2002 to December 30, 2002, January 1, 2003 to March 31, 2003
and April 1, 2003 to June 20, 2003 by (a) providing written notice to
Xchange no later than (i) the first day of the month preceding the start
of the Renewal Term, and (b) making payment of the Guaranteed Royalties
for such Renewal Terms as set forth in Section 3. If Carreker renews
this Agreement through June 30, 2003 and has paid all Royalty Fees
through that date, then the term of this agreement shall be for 99 years
from June 30, 2003 and no further Guaranteed Royalties shall be due
hereunder.
4. The tables shown on Schedule D with the exception of the Royalty Fee
Rates table shall be replaced in their entirety with the following:
GUARANTEED ROYALTIES FOR INITIAL TERM
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GUARANTEED ROYALTIES DUE DATE
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ENACT MAINTENANCE
TOTAL ROYALTY ROYALTY
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$4,000,000 $3,636,363 $363,637 Upon Execution of Reseller Agreement
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$2,000,000 $1,818,000 $182,000 Upon Execution of Reseller Agreement
prepayment for Special Transactions
(defined below)
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$1,000,000 $ 909,000 $ 91,000 June 15, 2001
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$2,000,000 $1,818,000 $182,000 June 30, 2001
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$1,000,000 $ 909,000 $ 91,000 September 30, 2001
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$2,500,000 $2,272,727 $227,273 December 30, 2001
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GUARANTEED ROYALTIES FOR RENEWAL TERMS
--------------------------------------------------------------------------------------------------------
GUARANTEED ROYALTIES RENEWAL TERM
---------------------------------------------------
ENACT MAINTENANCE
TOTAL ROYALTY ROYALTY
--------------------------------------------------------------------------------------------------------
$2,500,000 $2,272,727 $227,273 October 1, 2002 through December 31, 2002
--------------------------------------------------------------------------------------------------------
$2,500,000 $2,272,727 $227,273 January 1, 2003 through March 31, 2003
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$2,500,000 $2,272,727 $227,273 April 1, 2003 through June 30, 2003
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SEE BELOW see below see below July 1, 2003 and thereafter
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o The Guaranteed Royalties shall, for all purposes under this Agreement, be
considered fully paid after June 30, 2003 and term of the agreement shall
be for 99 years from June 30, 2003.
o The Guaranteed Royalties for each Renewal Term shall be made in on the
first business day of each of the last Month of the applicable Renewal
Term.
5. Xchange agrees to use best efforts to obtain the assignment of its
agreement with Bank West to Carreker and allow Carreker to book any
revenue under the agreement after June 30, 2001. Carreker agrees to pay
royalties in accordance with the terms of the Agreement.
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6. Xchange agrees to provide a list of all agreements existing on the
effective date of this Agreement which agreements are referenced on
page 33 Schedule B, regarding HSBC.
7. Xchange agrees to specifically name, in writing, the 3 people specified
in the section "ENACT SENIOR PROGRAMMERS" of Schedule E.
8. Xchange and Carreker agree the Product Strategy Committee shall have
the authority to approve and prioritize the development efforts of the
EnAct software and shall be constituted of two Carreker resources and
one Xchange resource and shall meet on a monthly basis or as determined
by the Product Strategy Committee.
9. Pursuant to the requirements of Section 11 of the Agreement, Xchange
hereby consents to Carreker's recruiting and/or hiring the following
individuals:
o Rodrigo Silva
o Paul Mandeville
10. Carreker shall receive the net fees from the licensing of EnAct to HSBC
through the Hewlett-Packard relationship until such time the
relationship is transferred to Carreker.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers or representatives as of the date first
written above.
CARREKER CORPORATION EXCHANGE APPLICATIONS, INC.
Signature: /s/ Robert E. Hall Signature: /s/ George Abatjoglou
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Name: Robert E. Hall Name: George Abatjoglou
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Title: President, RevE Title: CFO
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Date: 06/29/01 Date: 06/29/01
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