Agreement and Release - Pegasystems Inc. and Carreker Corp.
AGREEMENT AND RELEASE
This is an Agreement and Release, dated the 2nd day of November, 2001 (the
"Agreement"), made by and between Pegasystems Inc., a Massachusetts corporation
("Pega"), and Carreker Corporation, formerly Carreker-Antinori, Inc., a Delaware
corporation ("Carreker") (Pega and Carreker may be individually referred to as a
"Party" and collectively referred to as the "Parties").
WHEREAS, Pega filed suit against Carreker, which action is currently
pending in the Court of Chancery of the State of Delaware in and for New Castle
County under Civil Action Number 19043 (the "Litigation"), alleging various
causes of action relating to and arising from disputes concerning a Product
Development, Distribution and Sublicensing Agreement dated May 5, 1999 and
modified on June 27, 2000 and October 31, 2000 (the "Product Development
Agreement"); and
WHEREAS, Pega and Carreker seek to terminate the Product Development
Agreement; and
WHEREAS, Carreker initiated an arbitration before the American Arbitration
Association in Dallas, Texas of disputes arising under the Product Development
Agreement (the "Arbitration") (the Litigation and the Arbitration are
collectively referred to as the "Legal Proceedings"); and
WHEREAS, the claims and defenses, both legal and factual, advanced by
Carreker and Pega in the Legal Proceedings are disputed. Nevertheless, the
Parties wish to compromise and settle all matters raised by the Legal
Proceedings between Carreker and Pega, for the sole purpose of avoiding the
uncertainty and expense ofthe Legal Proceedings and,
WHEREAS, both Parties desire to bring the Legal Proceedings to an end
and to resolve all issues and monetary disputes;
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:
I. SUPERSEDED AGREEMENT
The Product Development Agreement is terminated on the Effective Date of
this Agreement by both Parties.
This Agreement shall supersede all prior agreements between the Parties
relating to the subject matter hereof.
II. DEFINITIONS
When used in this Agreement the capitalized terms listed in this section have
the following meanings:
"Carreker" means Carreker Corporation and any majority-owned affiliates or
subsidiaries of Carreker Corporation including but not limited to Carreker Check
Solutions LLC.
"Effective Date" means the execution date of this Agreement.
"Pega" means Pegasystems Inc. and any majority-owned affiliates or
subsidiaries of Pegasystems Inc.
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"CheckFLOW Product" is some or all combinations of the following: automated
check research (Check All Items), photo retrieval (Check Retrieval) and
adjustments solution (Adjust), together with a flexible workflow engine.
"Adjustments/Express" is a check adjustment product for banks. As errors are
found during the check capture and posting processes, offsetting adjustments are
created to both internal departments and downstream banks. Advice notices are
also received from sending banks that have found errors in their capture and
posting process. Adjustments/Express serves as a warehouse of these pending
adjustment items and presents operators with the necessary information to
resolve the adjustments and settle with the downstream or upstream banks,
including the retrieval of check images requested by the operators who are
assigned to resolve the adjustment item. The system makes the appropriate
internal accounting entries and creates the appropriate correspondence to the
banks and internal departments.
"All Transaction File (ATF)" is a database product that provides the banks'
installed applications with information needed to assist in the resolution of
adjustments, answer customer inquiries, and reconstruct lost or missing cash
letters/bundles. In addition, ATF can provide information to other applications
such as fraud, kiting or inbound returns. This database is created by interfaces
from the check capture and the DDA (Demand Deposit Accounting) posting systems.
"Inbound Returns/Express" is an inbound return items product for banks. As
inbound return items are received from other banks, the bank of first deposit
(receiving bank) has the job of deciding the final disposition of that item and
the proper manner of either charging back the item to the customer's account or
re-presenting the item. The system keeps track of the inbound cash letters,
gives the operator the customer specific information on how to handle the item,
and creates files for downstream processing of the physical items. Inbound
Returns/Express can retrieve check images to aid in the inbound return item
processing function.
"Exceptions/Express" is an outbound return items product for banks. Charged with
the task of deciding if an item should be paid or returned to the bank of first
deposit, operators in the returns department are presented with the necessary
data (including the retrieval of check images) on their workstation to process
these returns in a timely and informed manner. The system also creates files for
downstream processing to allow the return of the physical document when
necessary.
III. ASSIGNMENT OF CHECKFLOW PRODUCT
1. Except as necessary for Carreker to fulfill its obligations to KeyBank and
US Bank, Carreker hereby assigns to Pega all rights, title and interest it may
have in the CheckFLOW Product jointly developed under the Product Development
Agreement. Pega is free to market any and all Pega products or the CheckFLOW
Product without obligation to Carreker. Both Parties shall exercise reasonable
best efforts to return all confidential information provided by the other Party
including any intellectual property and any books, papers or records with
respect to such CheckFLOW Product, except for information needed solely for
fulfilling such Party's obligations under this Agreement or as necessary for
Carreker to fulfill its obligations to KeyBank and US Bank.
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IV. PAYMENT
2. In consideration of the following payments outlined herein in Paragraph 2
and Paragraph 3, Pega grants to Carreker a fully paid, non-exclusive, perpetual
development license to the CheckFLOW Product with no rights to sublicense such
CheckFLOW Product. This license is provided AS IS with no warranty, maintenance
or service obligations from Pega. Carreker shall cause to be paid to Pega the
total sum of THREE MILLION EIGHT HUNDRED AND FIFTY THOUSAND DOLLARS
($3,850,000.00) by wire transfer to the account number of Pegasystems Inc.,
which shall be provided to Carreker. Such payments shall be made in four
quarterly installments consisting of $900,000.00 due within three business days
of the Effective Date of this Agreement; $900,000.00 due on or before February
28, 2002; $900,000.00 due on or before May 31, 2002 and $1,150,000.00 due on or
before August 31, 2002.
3. In addition to the foregoing, Carreker shall cause to be paid to Pega the
sum of THREE HUNDRED SIXTY FIVE THOUSAND NINE HUNDRED AND TWENTY SIX DOLLARS
($365,926.00) in consideration of all outstanding Pega invoices. Such payment
shall be delivered to Pega by wire transfer within three business days of the
Effective Date of this Agreement to the account number of Pegasystems Inc.,
which shall be provided to Carreker.
The above payments shall be in full satisfaction of all the monies Carreker owes
or shall be obligated to pay Pega related to claims against Carreker in
connection with the Legal Proceedings or the Product Development Agreement,
other than the royalty payments specifically set forth below.
V. RIGHT TO MARKET PRODUCTS
4. Except for the royalty obligations set forth below for Adjustments/Express,
All Transaction File, Inbound Returns/Express and Exceptions/Express, Carreker
is free to market all of its products without obligation to Pega.
VI. ROYALTY
5. Carreker shall pay Pega a royalty based upon the percentage of the license
and maintenance fees, net of existing third party royalty obligations as of the
Effective Date of this Agreement as listed in Schedule A attached hereto, that
Carreker collects from customers who license Adjustments/Express, All
Transaction File, Exceptions/Express and Inbound Returns/Express, or any new
releases or versions of such products or successor products, with royalty
percentages as set forth in the following table. Successor products are any
products introduced by Carreker subsequent to the date of this Agreement that
are designed or otherwise intended to replace material functionality imbedded
in the products subject to royalty obligations such that the successor product
effectively eliminates or significantly reduces the market demand for those
products subject to royalty obligations. Carreker agrees that any licenses of
the above listed products are to be licensed at fair prices that will not
transfer value between elements of a multi-element agreement with a customer
and will not transfer value between the various products described herein so as
to avoid paying royalties to Pega. For purposes of the above sentence, any
pricing concessions Carreker is required to provide a customer in satisfaction
of product or performance issues directly related to any product license that
is not subject
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to Pega royalty obligations and for any concessions made to customers for
claims related to the Legal Proceedings shall be considered a separate
"element" of the contract in which such pricing concessions are made (i.e. -
the value of the concession shall be added back to the contract value when
computing royalty obligations due to Pega).
ALL INBOUND
ADJUSTMENTS TRANSACTION RETURNS/ EXCEPTIONS/
/EXPRESS FILE EXPRESS EXPRESS
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Royalties as a Percentage of License Fees
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Bank of America & Wells 50% 50% 20% 20%
Fargo
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Lloyds (for Credit R&A) 50% 50% 20% 20%
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Certain Pega 80% 80% 20% 20%
Customers as
detailed on
Schedule C
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Certain CANI 20% 20% 20% 20%
Customers as
detailed on
Schedule D
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All other customers 25% 25% 20% 20%
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Royalties as a Percentage of Maintenance Fees
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Maintenance earned on 20% 20% 20% 20%
customers signed from
3/20/01 through 10/31/06
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No royalties shall be due on Carreker's eRM product or any other current or
future products, including Research/Express, other than as expressly provided
for in this Agreement.
6. Royalties for applicable license and maintenance fees collected by Carreker
between March 20, 2001 and the Effective Date of this Agreement shall be paid
to Pegasystems Inc. by December 1, 2001
7. The foregoing royalties apply only to product licenses, including
amendments, granted during the period from March 20, 2001 through October 31,
2006. Royalties, net of any adjustments for cancellations or terminations,
shall be paid prior to the end of the month following the month such license
or maintenance fees are collected by Carreker and shall be accompanied by a
royalty statement. Any applicable maintenance fee collected for a period that
begins prior to October 31, 2006 but that expires subsequent to October 31,
2006 shall be prorated for purposes of computing royalties due. The Parties
further agree that Pega shall not receive any royalties for product licenses
for Adjustments/Express or All Transaction File granted to First Union Bank,
PNC Bank, Banc One
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Services, or Global Processing Services (Bank Development Partners) or for any
licenses granted prior to March 20, 2001 which are listed in Schedule B
attached hereto.
8. The foregoing royalties shall not be subject to offset against the advance
paid by Carreker pursuant to the June 27, 2000 modification to the Product
Development Agreement, but shall instead be paid in full as set forth above.
9. During the period Carreker is obligated to pay royalties hereunder and for
a period of 6 months thereafter, Pega, at its option, twice during the initial
year, through a mutually agreeable third party representative, shall have the
right to examine and audit, at Pega's sole expense and during Carreker's
normal business hours, all of Carreker's books and records which may
reasonably pertain to Carreker's royalty obligations under this Agreement at
Carreker's place of business as set forth in the notice paragraph to this
Agreement or as otherwise designated by Carreker. In years 2-5 the audit
frequency will be reduced to once per year unless material discrepancies are
found in the preceding audit. During such audits Carreker will use reasonable
best efforts to make their external auditors available to answer questions
directly related to Pega's audit upon Pega's request. Any such audit shall be
limited to no more than the immediately preceding 24 month period and shall
not include any periods previously audited.
VII. MUTUAL RELEASES
10. RELEASE OF ALL CLAIMS BY PEGA. Except for the obligations under this
Agreement, in consideration for the payment, covenants and obligations referred
to above, release set forth below and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Pega hereby releases
and forever discharges Carreker and its insurers, agents, officers, directors,
employees, trustees, shareholders, administrators, partners, attorneys,
successors, predecessors, parent companies, affiliates, subsidiaries,
representatives and assigns, including without limitation Carreker Check
Solutions LLC (the "Carreker Released Parties"), from any and all demands,
claims and causes of action of whatever kind or nature (whether constitutional,
statutory, common-law, administrative, equitable or otherwise), whether
presently known or unknown, that Pega has, may have or believes it may have, in
any way related to the Product Development Agreement, the business relationship
between the Parties, or arising out of the facts and claims asserted or that
could have been asserted in the Legal Proceedings.
11. RELEASE OF ALL CLAIMS BY CARREKER. Except for the obligations under this
Agreement, in consideration for the payment, covenants and obligations referred
to above, release set forth below and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Carreker hereby
releases and forever discharges Pega and its insurers, agents, officers,
directors, employees, trustees, shareholders, administrators, partners,
attorneys, successors, predecessors, parent companies, affiliates, subsidiaries,
representatives and assigns (the "Pega Released Parties"), from any and all
demands, claims and causes of action of whatever kind or nature (whether
constitutional, statutory, common-law, administrative, equitable or otherwise),
whether presently known or unknown, that Carreker has, may have or believes it
may have, in any way related to the Product Development Agreement, the business
relationship between the Parties, or arising out of the facts and claims
asserted or that could have been asserted in the Legal Proceedings.
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VIII. DISMISSAL OF LEGAL PROCEEDINGS
12. Upon Pega's receipt of the initial payment of $900,000 due pursuant to
Paragraph 2 and $365,926 due pursuant to Paragraph 3 of this Agreement, Pega
shall apply to the court with a request that the preliminary injunction entered
in the Litigation be vacated and that the Litigation be dismissed with
prejudice.
13. Upon Pega's application to the court with a request that the preliminary
injunction be vacated, Carreker shall promptly withdraw its Demand for
Arbitration and file whatever papers are necessary to insure the dismissal of
the Arbitration with prejudice.
14. Each Party shall bear its own costs, attorney's fees and any other expenses
related to the Product Development Agreement or the Legal Proceedings.
IX. POST TERMINATION RIGHTS AND SURVIVAL PROVISIONS
15. Notwithstanding any provisions of the Product Development Agreement, all
post termination rights as set forth in Paragraph 14.3 of the Product
Development Agreement are hereby terminated.
Furthermore, notwithstanding the termination of the Product Development
Agreement, the following is the only provision which shall survive termination
of such agreement:
- Section 9 - Confidential Information
X. RIGHT TO PAYMENTS
16. Carreker shall have the right to receive all license fees and other payments
from any of its customers for Products sold under the Product Development
Agreement or for any Carreker products. Notwithstanding the above, nothing in
this paragraph is intended to relieve Carreker of its royalty obligations under
Section VI of this Agreement.
XI. FUTURE DEVELOPMENT
17. Carreker will consider, but will not be obligated to pursue, opportunities
for jointly developed products using a PegaRules platform under mutually
agreeable terms and conditions.
XII. RESOLUTION OF CUSTOMER DISPUTES AND INDEMNIFICATION
18. Carreker shall be responsible for resolving any claims of KeyBank or US Bank
related to Carreker's sale or license of any Product as defined under the
Product Development Agreement. Further, Carreker shall indemnify, defend and
hold harmless Pega and its successors and assigns from and against any and all
claims made or threatened by KeyBank or US Bank for losses, expenses, damages,
costs and liabilities (including reasonable attorneys' fees and expenses)
arising from KeyBank's or US Bank's license or use of any such Product. Further,
Carreker shall not be obligated to make any future royalty payments for
Adjustments/Express or All Transaction File should either of these banks license
either of these products.
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In addition Carreker shall indemnify, defend and hold harmless Pega and its
successors and assigns from and against any and all claims made or threatened by
a third party licensee of Adjustments/Express, All Transaction File, Inbound
Returns Express, and Exceptions Express arising from such third party's license
or use of Adjustments Express, All Transaction File, Inbound Returns Express, or
Exceptions Express or that may arise solely due to the royalty obligations of
Carreker to Pega.
XIII. MISCELLANEOUS
19. INUREMENT. This Agreement shall be binding upon and inure to the benefit
of the Parties hereto and their respective predecessors, successors and
assigns.
20. ENTIRE AGREEMENT. This Agreement contains the entire agreement between the
Parties and supersedes any and all prior agreements, arrangements or
understandings, whether oral or written, between the Parties hereto relating to
the subject matter contained herein. No prior or contemporaneous statements,
promises, or inducements exist. This Agreement may not be orally amended or
terminated.
21. NO ADMISSION OF LIABILITY. The Parties agree that this Agreement is
entered into in connection with the compromise, resolution and settlement of
the Legal Proceedings referenced herein 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.
22. NO THIRD PARTY BENEFICIARIES. This Agreement is for the sole benefit of
the Parties hereto and the Parties specifically identified herein. Except as
set forth herein, this Agreement is not intended to benefit any third parties.
23. GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS (EXCLUSIVE OF CONFLICTS OF LAW
PRINCIPLES). THE PARTIES CONSENT TO THE EXCLUSIVE JURISDICTION OF THE
DELAWARE COURT OF CHANCERY FOR ALL CLAIMS OR DISPUTES ARISING OUT OF THIS
AGREEMENT.
24. NON-SOLICITATION. For a period ending one year from the Effective Date of
this Agreement, neither Party shall, without the written consent of the other
Party, directly or indirectly, solicit for employment or hire any employee of
the other Party or otherwise induce any such employee to terminate his or her
employment with such Party.
25. SEVERABILITY AND REFORMATION. The Parties hereto intend all provisions of
this Agreement to be enforced to the fullest extent permitted by law. If,
however, any provision of this Agreement is held to be illegal, invalid, or
unenforceable under any present or future law, such provision shall be fully
severable, and this Agreement shall be construed and enforced as if such
illegal, invalid, or unenforceable provision were never a part hereof, and the
remaining provisions shall remain in full force and effect and shall not be
affected by the illegal, invalid, or unenforceable provision or by its
severance. Further, the illegal, invalid, or unenforceable provision shall be
limited so that it will remain in effect to the fullest extent permitted by law.
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26. HEADINGS. The descriptive headings of the Sections and Paragraphs hereof
are inserted for convenience only and do not constitute a part of this
Agreement.
27. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and such counterparts together shall constitute one instrument. Each
Party shall receive a duplicate original of the counterpart copy or copies
executed by it and the other Party.
28. NO ASSIGNMENT OF CLAIMS. The Parties expressly warrant that no claims,
demands, controversies, actions, causes of action, liabilities, damages,
injuries, losses, or other rights released or waived herein are owned by any
other person, entity or third party or have been previously conveyed, assigned,
or transferred by the Parties in any manner, whether in whole or in part, to any
person, entity, or third party. The Parties expressly represent that they are
competent to release and/or waive the claims each has released and/or waived
herein.
29. WARRANTY OF AUTHORITY. The individuals signing this Agreement execute it
on behalf of the respective Parties, and represent and warrant that said
individual is authorized to enter into and execute this Agreement on behalf of
such Party.
30. REPRESENTATIONS AND WARRANTIES WITH RESPECT TO SCHEDULES A AND B. Carreker
represents and warrants that the attached list in Schedule A of third party
royalty obligations is a complete list for such obligations as of the Effective
Date of this Agreement.
Carreker represents and warrants that the attached list in Schedule B is a
complete list of all licenses of Adjustments/Express, All Transaction File,
Inbound Returns/Express, and Exceptions/Express granted prior to March 20, 2001.
31. ADVICE OF COUNSEL. Each Party acknowledges and agrees that it has given
mature and careful thought to this Agreement and that it has been given the
opportunity to review this Agreement independently with legal counsel. Each
Party represents and warrants that it entered into and executed this Agreement
of its own choice and free will and in accordance with its own judgment.
32. ADEQUATE OPPORTUNITY TO REVIEW. EACH PARTY HEREBY FURTHER REPRESENTS AND
WARRANTS THAT IT HAS READ AND HAD EXPLAINED TO IT ALL PROVISIONS OF THIS
AGREEMENT AND THAT IT HAS HAD A SUFFICIENT OPPORTUNITY TO DISCUSS THOROUGHLY
THIS AGREEMENT WITH COUNSEL PRIOR TO SIGNING BELOW.
33. NO RELIANCE. FURTHER, IN SIGNING THIS AGREEMENT, NO PARTY HAS RELIED ON OR
BEEN INDUCED TO EXECUTE THIS AGREEMENT BY ANY STATEMENTS, REPRESENTATIONS,
AGREEMENTS OR PROMISES, ORAL OR WRITTEN, MADE BY ANY OTHER PARTY, THEIR AGENTS,
EMPLOYEES, SERVANTS OR ATTORNEYS, OR ANYONE ELSE, OTHER THAN THE STATEMENTS
EXPRESSLY WRITTEN IN THIS AGREEMENT.
34. NOTICE. All notices, certifications and other required communications
hereunder (a "Notice") shall be in writing and shall be given to the receiving
Party: (i) by hand delivery; (ii) by sending such Notice by U.S. first class,
certified mail, postage prepaid, return receipt requested; or (iii) by overnight
courier service, charges prepaid, to the receiving Party's address set forth
below or such other address as the receiving Party may modify from time to time
by giving notice as provided in this section. A Notice shall become effective on
the earlier of receipt or: (i) five (5) days after
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deposit in the United States mail if such notice is properly addressed as set
forth below and sent as provided above; (ii) one (1) business day after
deposit with a courier service if such Notice is properly addressed as set
forth below and sent as provided above.
To Pega:
Pegasystems Inc.
101 Main Street
Cambridge, Massachusetts 02142
Attention: Vice President and General Counsel
To Carreker:
Carreker Corporation
4055 Valley View Lane
Suite 1000
Dallas, Texas 75244
Attention: General Counsel
35. NON-DISPARAGEMENT. At no time will either Party defame the other with
respect to this Agreement or the business relationship between the Parties.
36. PRODUCT DEMONSTRATION. Within thirty (30) days from the execution date of
this Agreement, Carreker shall provide a demonstration of Adjustments/Express
and All Transaction File at a time and place to be mutually agreed between the
Parties.
37. CONFIDENTIALITY. Except in a confidential communication with such Party's
attorneys, such Party's accountants, or its officers, directors, and affiliates,
or as otherwise required by applicable law or by a court of competent
jurisdiction, no Party hereto nor any of such Party's agents (including such
Party's attorneys) will at any time publish, disseminate, or communicate to any
third Party, directly or indirectly, any information relating to the terms and
conditions of this Agreement (including but not limited to any payments to be
made pursuant to this Agreement), except that any Party hereto may communicate
that the Legal Proceedings have been settled and the Parties have reached
agreement on terms allowing the Parties to develop, market, license, advertise,
lease, sell, install or implement any products previously enjoined.
38. PRESS RELEASES. After execution of this Agreement, Pega and Carreker shall
agree in writing to coordinate with and approve the other Parties Press
Release with respect to the Agreement prior to the publishing thereof.
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IN WITNESS WHEREOF, Pega and Carreker have executed this Agreement as of
the date first written above.
CARREKER CORPORATION PEGASYSTEMS INC.
By: Michael D. Hansen By: Joseph J. Friscia
------------------------------ --------------------------------
Michael D. Hansen Joseph J. Friscia
Executive Vice President Executive Vice President
Sales and Service
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The Schedules to this Agreement, as defined below, have been omitted, but the
Company undertakes to furnish supplementally a copy of such Schedules to the
Commission upon request.
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SCHEDULE A
THIRD PARTY ROYALTY OBLIGATIONS
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SCHEDULE B
PRODUCT LICENSES ENTERED INTO
BY
CHECK SOLUTIONS COMPANY PRIOR TO MARCH 20, 2001
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SCHEDULE C
The following list represents Pega customers who have licensed Pega Exception
Management Application-specific Components (as defined in the Product
Development Agreement) on or before May 5, 1999.
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SCHEDULE D
The following list represents Carreker customers who have licensed CANI
Exception Management Application-specific Components (as defined in the
Product Development Agreement) on or before May 5, 1999.
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