Novell Confidential
AMENDMENT 2
TO
PRODUCT LICENSE AGREEMENT
Amendment 2 Effective Date: December 18, 1998
This Amendment ("Amendment 2") amends and supplements the Product
License Agreement, effective May 16, 1995, between Novell, Inc. and FileNet
Corporation (the "Agreement"), as amended by Amendment 1 to the Agreement,
effective June 27, 1996 ("Amendment 1"). In the event of a conflict between the
Agreement and this Amendment 2, the provisions of this Amendment 2 shall
control. Except as expressly amended and supplemented by this Amendment 2, the
terms and conditions of the Agreement will remain in effect unchanged.
1. CONSIDERATION. Novell shall pay FileNet One Million ($1,000,000) Dollars
within ten (10) days of the Amendment 2.Effective Date and receipt of
invoice from FileNet.
2. Section 1 of the Agreement is hereby modified as follows. The licenses
granted to Novell with respect to Visual WorkFlo are hereby terminated.
Commencing on the Amendment 2 Effective Date, the licenses granted to
Novell with respect to Ensemble Lite are converted to fully-paid-up and
royalty-free licenses and shall be limited to use with Novell's GroupWise
5.5x product and prior versions that include Ensemble Lite as of the
Amendment 2 Effective Date. Novell shall have no obligation to pay
Royalties or minimum Royalties in connection with the licensing of Ensemble
Lite as set forth herein.
3. Sections II, III, IV, V and VIII of the Agreement are hereby deleted.
4. Section VI.A of the Agreement is hereby deleted and replaced with the
following provision:
Beginning upon the date of shipment of Ensemble to a customer of
Novell for revenue (the "Ensemble Effective Date") and until such time
as Novell has paid an additional two million dollars ($2,000,000) in
Ensemble Royalties to FileNet, Novell shall pay FileNet an initial
Royalty of five percent (5%) of Novell's standalone Ensemble suggested
list price for standalone Ensemble and two percent (2%) of Novell's
standalone Ensemble suggested list price for bundled Ensemble, or
fifty percent (50%) of the minimum per copy Royalty amounts set forth
in Exhibit E, whichever is higher. Thereafter, Novell shall pay
FileNet a Royalty of ten percent (10%) of Novell's standalone Ensemble
suggested list price for standalone Ensemble and four percent (4%) of
Novell's standalone Ensemble suggested list price for bundled
Ensemble, or the minimum per copy Royalty amounts set forth in Exhibit
E, whichever is higher. In the case of products sold as upgrades (i.e.
customers purchasing (i) a new version of standalone Ensemble for
which they own a previous version of such product, or (ii) in the case
of bundles, a Novell product which contains a new version of Ensemble
for which they own a previous version of such Novell product), the
Royalty shall be reduced to twenty percent (20%) of the Royalty
applicable to Ensemble as set forth in Exhibit E.
5. Sections VI.B and VII of the Agreement shall be applicable only to
Ensemble. The last sentence of Section VII.A of the Agreement is hereby
deleted.
6. Section XVIII of the Agreement is hereby modified as follows. The last
sentence of Section XVIII.B of the Agreement is deleted. The last sentence
of Section XVIII.C of the Agreement is deleted. Section XVIII.E of the
Agreement is deleted and replaced with the following:
E. Without Cause. This Agreement may be terminated by either party
without cause or penalty at any time after November 24, 1999 upon 90
days prior written notice.
7. Section XIX of the Agreement is hereby deleted and replaced in its entirety
with the following:
XIX. EFFECT OF TERMINATION. Upon termination of this Agreement, Novell
shall remove the standalone and bundled Ensemble Products from its
price lists. Termination of this Agreement shall not affect the
licenses granted to Novell prior to termination. Upon termination of
this Agreement, FileNet agrees to promptly make available and deliver
at no additional charge a fully-paid-up, perpetual license to the
source code for Ensemble for maintenance purposes only.
8. Section 4 of Amendment 1 is hereby deleted.
9. The parties acknowledge and agree that the rights and obligations under
Section XI of the Agreement shall survive termination or expiration of the
Agreement for a period of ninety (90) days.
10. Ensemble Lite Source Code and Technical Assistance. Upon FileNet's receipt
of the payment specified in Section 1 of this Amendment 2, FileNet agrees
to promptly make available and deliver at no additional charge a
fully-paid-up, perpetual license to the source code for Ensemble Lite for
maintenance purposes only. Upon delivery of such source code for Ensemble
Lite to Novell, FileNet's obligations under Section XI of the Agreement
shall terminate in connection with all Ensemble Products other than
Ensemble.
11. General Release. Upon receipt of the payment specified in Section 1 of this
Amendment 2 to FileNet by Novell of the invoice from FileNet dated December
18, 1998, the Amendment 2 Effective Date, and for other good and valuable
consideration, each of Novell and FileNet releases and forever discharges,
and by these presents does for itself and its successors and assigns,
remise, release, and forever discharge the other party, its respective
predecessors and successors and present and former officers, directors,
employees, and agents and their respective heirs, administrators,
executors, successors, and assigns (hereinafter collectively referred to as
"Releasees") of and from all manner of actions, causes of action, suits,
debts, covenants, contracts, controversies, damages, judgments, claims, and
demands whatsoever in law or in equity, whether or not well founded in fact
or in law and whether or not presently known to Novell and/or FileNet,
which against each of the Releasees or any of them it ever had, or has as
of the Amendment 2 Effective Date, including without limitation any claims
arising out of or related to oral or written discussions, commitments or
agreements between Novell and FileNet in connection with the Agreement,
Amendment 1, and this Amendment 2, thereto except for the mutually
acknowledged continuing obligations under the aforementioned Agreement,
Amendment 1, and this Amendment 2.
12. SIGNATURES. When executed by both parties, this Amendment 2 shall become
effective on the Amendment 2 Effective Date.
Novell, Inc. FileNet Corporation
Signature: /s/ Signature: /s/
______________________________ ____________________________
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇ ▇. Carringotn
______________________________ ____________________________
Title: Senior Vice President Title: Senior Vice President
General Counsel
______________________________ ____________________________
Date: December 20, 1998 Date: December 17, 1998