TRANSITION AMENDMENT BETWEEN EMC CORPORATION AND ACXIOM CORPORATION

FINAL

 

Exhibit 10(t)

 

TRANSITION AMENDMENT

BETWEEN

▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ AND ACXIOM CORPORATION

 

This Transition Amendment (this “Amendment”) is made and entered into as of March 31, 2008 (the “Amendment Effective Date”), by and between Acxiom Corporation, a Delaware corporation, with a principal address of ▇▇▇ ▇▇▇▇ ▇^▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (“Acxiom”), and ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, a Massachusetts corporation with an office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and EMC (Benelux) B.V., S.à.▇.▇., a Luxembourg limited liability company (together “EMC”).

 

WHEREAS, EMC and Acxiom have entered into an Asset Purchase and License Agreement (the "Agreement") with an Effective Date of December 29, 2005;

 

WHEREAS, it is the intent of EMC and Acxiom with this Amendment to modify or delete certain terms of the Agreement, add new terms to the Agreement, while other terms of the Agreement shall remain the same;

 

Capitalized terms not otherwise defined herein shall have the meanings assigned to them in the Agreement. For any sections modified below, it is understood that the modification is only applicable to the specifically identified section, and not any header sections or sub-sections thereof, unless expressly set forth.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein the parties agree as follows:

 

ARTICLE ONE: LICENSES

 

1.1   EMC License to Acxiom. Subject to the limitations set forth herein, EMC hereby grants to Acxiom a perpetual, non-transferable, non-assignable, sub-licensable, and reproducible license to use code and technology contained in versions 1.0 and 2.0 of the Base Technology as identified in Exhibit 1 (the "Current Grid IP") to use, make, modify, distribute, create derivative works of and otherwise develop and commercialize the Current Grid IP but solely for use within or in addition to a whole or partial distribution of Acxiom Products. For purposes of this Amendment, “Acxiom Products” shall mean those products developed by Acxiom at Acxiom's facilities, which shall also include any products subsequently developed or obtained by Acxiom through acquisition by or merger of Acxiom with a third party and, for purposes of clarification, an Acxiom Product may include open source or other third party components, provided that 1) it also contains products developed by Acxiom at Acxiom's facilities or subsequently developed or obtained by Acxiom through acquisition or by merger or Acxiom with a third party; 2) the combination is packaged and distributed as a single Acxiom Product; and 3) the combination with such components does not create any additional licensing obligations with respect to the Current Grid IP under a license that requires, for example, that the Current Grid IP be disclosed or distributed in source code form or that EMC grant any rights or immunities under EMC’s intellectual property or proprietary rights with respect to the Current Grid IP ("copyleft license"). However, Acxiom may include or distribute any software in the Acxiom Products with any software that is not subject to a copyleft license as described above, or that contains open source but does not subject the Current Grid IP to the terms of such an open source license.

 

 

 

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Except in connection with a distribution of the Acxiom Products directly and indirectly (except as set forth below) and related maintenance and support activities for the Acxiom Products (e.g., a commercial distribution behind an Acxiom end user’s firewall), Acxiom's use of the Current Grid IP shall be limited to Acxiom employees and contractors.

 

1.1(a)   Acxiom's distribution right in Section 1.1 above (EMC License to Acxiom) shall be deemed to provide Acxiom only with the right to distribute the Current Grid IP as part of or in addition to Acxiom Products, where the Acxiom Products are embedded or integrated with, or in addition to, all or a portion of the Excluded Assets or other Acxiom assets subsequently developed or obtained by Acxiom through acquisition by or merger of Acxiom with a third party.

 

1.1(b)   Except as expressly stated in Section 1.1 (EMC License to Acxiom), Acxiom shall not be permitted to distribute the Current Grid IP: (i) embedded within other non-Acxiom product(s) or technology, (ii) with any branding other than that of Acxiom, or (iii) indirectly through or to those EMC competitors identified in Exhibit 2 ("EMC Competitors").

1.1(c)   Acxiom hereby acknowledges that EMC has no obligation to provide any (i) Base Technology created after December 20, 2007, or (ii) any technical or other support for the Current Grid IP to Acxiom. In addition, EMC hereby acknowledges and agrees that Acxiom has no obligation to provide any derivative works of the Base Technology created after December 20, 2007 or pursuant to the provisions of Section 1(a), Section 12(e) or Section 12(f) of the Agreement.

 

1.1(d)   Notwithstanding this Section 1.1 (EMC License to Acxiom), Acxiom may deposit the source code for Current Grid IP as part of a comprehensive deposit of the source code for Acxiom Products with a third party escrow agent pursuant to a written escrow agreement (“Escrow Agreement"). The Escrow Agreement shall have only the following as release conditions (i) Acxiom files or has filed against it a proceeding under applicable bankruptcy laws for the purpose of liquidating the business and such proceedings are not dismissed within sixty (60) days of the commencement thereof, becomes insolvent, or discontinues business in the regular course; or (ii) Acxiom makes an assignment on behalf of creditors.

 

In the event the source code for the Current Grid IP is released along with source code for the Acxiom Products, in accordance with the release conditions above, to an existing Acxiom end user of the Acxiom Products, Acxiom will grant such end-user a written non-exclusive, non-transferable, non-sub-licensable license to internally use the Current Grid IP source code solely to support the end-users use of the Acxiom Products.

 

1.1(e)   Acxiom hereby acknowledges and agrees that the foregoing license is provided "AS-IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED BY EMC OR ITS AFFILIATES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED PURPOSE, COMPLETENESS, ACCURACY, AVAILABILITY, TITLE, NON-INFRINGEMENT, TRADE USEAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, THE ENTIRE RISK AS TO THE PEFORMANCE OF THE GRID IP AND ACXIOM PRODUCTS ARE WITH ACXIOM AND THERE IS NOT GUARANTEE THAT THE LICENSE PROVIDED UNDER THE TERMS OF THIS AMENDMENT WILL MEET THE MINIMUM REQUIREMENT OF ACXIOM, BE ERROR FREE OR OPERATE WITHOUT INTERRUPTUION.

 

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1.1(f)   Except as otherwise expressly provided in this Amendment with respect to Acxiom’s distribution rights, Section 12(c) of the Agreement remains in full force and effect as it relates to the Current Grid IP.

 

ARTICLE TWO- NONSOLICTATION AND NON-COMPETE

 

2.1       Nonsolicitation. Section 14 (Nonsolicitation) of the Agreement is hereby waived for up to fifteen (15) current employees of Acxiom.

 

2.2       Waiver of Non-Compete. (a) In the event that Acxiom has any non-compete, confidentiality or similar agreements with Acxiom employees who are subsequently hired directly or indirectly (e.g., as a contractor) by EMC (the “Former Associates”), Acxiom hereby expressly releases, waives and discharges the Former Associates who, Acxiom acknowledges and agrees, will be expressly allowed by this Section 2.2 to disclose to EMC the technical, proprietary and confidential information of Acxiom that is known by such employees with regard to how such information relates or interacts with the Current Grid IP. Further, and except with regard to a breach of this Section 2.2, Acxiom hereby expressly releases, waives and discharges EMC, its past, present and future directors, officers, stockholders, agents and employees, both individually and in their official capacities (hereafter individually or collectively the "releasees") from any and all claims, causes of action, arising directly and indirectly from Acxiom’s agreements with the Former Associates. Notwithstanding anything in this Article 2 to the contrary, in no event shall the Former Associates disclose, nor shall EMC request of such employees, the following Acxiom confidential information:

 

 

(b)      In addition, in no event shall the Former Associates or EMC be allowed to utilize or disclose any of Acxiom’s tangible intellectual property including, but not limited to, Acxiom-proprietary documentation, software code, marketing plans, manuals and equipment (“Acxiom Materials”).

 

(c)       Further, the parties agree that the exclusions set forth in Section 2 of that certain Confidentiality Agreement between the parties dated February 3, 2003, which agreement was incorporated into the Agreement by Section 27 of the Agreement (the “Confidentiality Agreement”) shall apply to Acxiom’s confidential information disclosed pursuant to this Article 2. The parties also agree that the Confidentiality Agreement should be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. Except as expressly modified in this Article 2, the parties affirm that the provisions of the Confidentiality Agreement shall remain in full force and effect.

 

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(d)       By enumerating categories of Acxiom confidential information in Section 2.2 of this Amendment, EMC does not acknowledge that such Acxiom confidential information exists in all cases, but only that if it exists, corresponding confidentiality obligations also exist in accordance with the Agreement.

(e)        Nothing contained in this Amendment shall restrict the Former Associates from the use of any general ideas, concepts, know-how, or techniques retained in their unaided mental impressions which either party, individually or jointly, has developed or disclosed under this Amendment, provided that in doing so such Former Associate does not breach its obligations under the Confidentiality Agreement or infringe the intellectual property rights of the other party or third parties who have licensed or provided materials to the other party.

ARTICLE THREE- MARKETING AND SERVICES

 

3.1       Acxiom Marketing Services. EMC will procure five hundred thousand dollars ($500,000) of marketing services from Acxiom over the next two (2) calendar years, beginning as of January 1, 2008, pursuant to mutually agreed upon terms.

 

3.2       Future Procurement of Acxiom Marketing Services. In addition to the amount set forth in Section 3.1 above, EMC intends to use commercially reasonable efforts procure an additional one million dollars ($1,000,000) of marketing services from Acxiom over the next three (3) years, beginning as of January 1, 2008.

 

ARTICLE FOUR- EMC CREDITS

 

4.1       EMC Credits. In anticipation of Acxiom procuring and remitting payment for twenty-four million dollars ($24,000,000) of EMC hardware and software products only (the "Products") (collectively the "Product Commitment") directly from EMC, pursuant to the terms and conditions of this Amendment and the Preferred Vendor Agreement between EMC and Acxiom with an effective date of April 1, 2006 (the "Preferred Vendor Agreement"), between the Amendment Effective Date and March 31, 2012, EMC will provide Acxiom up to eight-million dollars ($8,000,000) of credit (the "EMC Credit") per this Amendment and in accordance with Sections 4.1(a) through (e) below.

 

4.1(a)    Notwithstanding the foregoing Section 4.1 (EMC Credits), monies spent on the purchases of the following products shall not be applicable to the twenty-four million dollar Product Commitment or be considered as part of the calculation of the EMC Credit (and, therefore, Acxiom is not required to purchase the following products directly from EMC): (i) VMware products, (i) EMC products sold under the Connectrix brand, (iii) products sold through the EMC Select program, or (iv) any products sold in the future by EMC that are obtained by EMC through acquisition of or merger of EMC with a third party.

 

4.1(b)    Acxiom shall be eligible for the EMC Credit as set forth herein on or before the expiration of the Preferred Vendor Agreement.

 

4.1(c)    Acxiom will earn the EMC Credit on a pro-rata basis based on the amount of Acxiom purchases of EMC Products pursuant to this Amendment up to the maximum of eight million dollars ($8,000,000) as stated above. Acxiom will earn a credit of thirty-three cents ($0.33) for every dollar Acxiom spends with EMC in accordance with the terms and conditions of this

 

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Amendment. EMC shall apply the EMC Credit against the amounts of monies owed to EMC by Acxiom for purchases of the EMC Products, and Acxiom shall pay EMC the net amount.

 

4.1(c)(1) The following example, while not exhaustive of the application of the EMC Credit, is illustrative and is included for illustration only:

 

 

4.1(d)    EMC shall have no obligation to make the EMC Credit available, in whole or in part, if: (i) the Preferred Vendor Agreement is terminated, (ii) Acxiom fails to make a payment pursuant to the Preferred Vendor Agreement when due, or (iii) Acxiom breaches this Amendment. Acxiom acknowledges and agrees that if Acxiom fails to pay EMC for any EMC Products whose purchase amounts are used in the calculation of the EMC Credit, and EMC provides such EMC Credit to Acxiom, Acxiom shall pay back such EMC Credit(s) to EMC.

 

4.1(e)    Pricing for the EMC Products shall be as set forth in the Preferred Vendor Agreement.

 

ARTICLE FIVE – PREFERRED VENDOR AGREEMENT AMENDMENT

 

5.1(a) EMC and Acxiom agree that the Preferred Vendor Agreement is hereby extended until March 31, 2012; provided, however, that in the event BUYER satisfies the Product Commitment (as defined in the Transition Amendment dated March 31, 2008 (the “Transition Amendment”) prior to March 31, 2012, BUYER shall have the option of immediately terminating the Preferred Vendor Agreement upon notice to SELLER. In addition, EMC and Acxiom shall amend the Preferred Vendor Agreement contemporaneously with the Amendment Effective Date as follows:

 

5(a) (1)             Section 1(a) of the Preferred Vendor Agreement shall be deleted and replaced with the following:

 

"Exclusive Rights to Supply" shall mean that SELLER shall be BUYER's exclusive vendor to provide EMC products and services in support of both (i) BUYER's internal requirements and (ii) services to Buyer’s customers, including Outsourcing Services Agreements (as defined herein) BUYER has with its customers ("End-Users)."

 

5(a) (2) Section 2(a) of the Preferred Agreement is hereby amended to read as follows:

 

"BUYER grants SELLER the Exclusive Rights to Supply EMC products and services on EMC's current and future price list to BUYER for a term to expire on March 31, 2012. Provided however, that SELLER is not BUYER'S exclusive

 

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vendor and BUYER shall have no obligation to purchase from SELLER products and services where:

 

 

5(a) (3) Section 2. e) of the Preferred Vendor Agreement is hereby stricken in its entirety and replaced with “[Intentionally Omitted].”

 

5(a) (4) Section 3 (Hardware Pricing and Warranty) of the Preferred Vendor Agreement shall be deleted and replaced with the following:

 

"a) Hardware products will be offered to BUYER at the then current list price less the discounts reflected in the chart below. List price and discount will be provided on all quotations. New hardware products may be added by EMC to the Purchase Discount Schedule every calendar quarter. New hardware products that are similar to the products listed in the Purchase Discount Schedule will have discount levels as favorable to Acxiom as those for the similar products.

 

b)         All hardware pricing, including future pricing, applicable under the Agreement will apply to the then current generation of SELLER hardware products. Current generation will be defined as SELLER's newest technology within 90 days of general availability.

 

c)         Hardware warranty on storage purchased under this Agreement will be for thirty-six (36) months. Post warranty Hardware Maintenance will be discounted at a rate of forty-percent (40%) from the list price in effect at the time this Agreement is executed."

 

5(b) (1)            Section 4 (Software Pricing and Warranty) of the Preferred Vendor Agreement shall be deleted and replaced with the following:

 

"a)       SELLER third party software products will be offered to BUYER at the then current list price less thirty-eight percent (38%) discount.

 

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The current SELLER storage software offerings will be offered to BUYER at the then current list price less the discount reflected in the chart below. List price and discount will be provided on all quotations. New software products may be added by EMC to the Purchase Discount Schedule every calendar quarter. New software products that are similar to the products listed in the Purchase Discount Schedule will have discount levels as favorable to Acxiom as those for the similar products.

 

 

b)         Software Warranty on software purchased under this Agreement will be for three (3) months. Post warranty maintenance will be at forty-five percent (45%) discount off of the then current list price.

 

c)         This section 4 applies to all SELLER software offerings with the exception of software sold under the following categories or brand names: Content Management and Archiving, SMARTS, Legato, VMware, and/or any software offerings that EMC may acquire through acquisition or merger."

 

5(b)(2)             Section 8. a) of the Preferred Vendor Agreement shall be deleted and replaced with the following:

 

"a) Order of precedence. In the event of a conflict in terms between this Agreement, and the Basic Ordering Agreement and the Transition Amendment, the order of precedence shall be the Transition Amendment, this Agreement and the Basic Ordering Agreement."

 

ARTICLE SIX- PAYMENT

 

6.1       EMC Payment. EMC shall pay Acxiom the sum of two million dollars ($2,000,000) within thirty (30) days of the Amendment Effective Date.

 

ARTICLE SEVEN- MARKETING

 

7.1       EMC and Acxiom agree to use commercially reasonable efforts to gain market share for their respective products and services by proposing customer solutions that may be deployed as part of a customer solution on an opportunistic basis.

 

7.1(a)    When EMC recognizes a customer opportunity in which Acxiom products and services may be part of a service engagement by EMC's Business Edge practice unit (the "Opportunity"), EMC will engage Acxiom to determine the feasibility of pursuing the Opportunity with Acxiom, where Acxiom may be a subcontractor to EMC.

 

7.1(b)   Acxiom will work with EMC to prepare proposals for such Opportunities, including providing EMC with preferred pricing and business terms.

 

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7.1(c) In the event EMC has brought Acxiom into an Opportunity, Acxiom will not propose or provide Acxiom products and services, directly or indirectly, to the customer identified in the Opportunity.

 

7.1(d)    EMC and Acxiom will agree on a process within ninety (90) days of the Amendment Effective Date, to document the procedure for handling said Opportunities.

 

ARTICLE EIGHT – PENTAHO

 

8.1        Acxiom hereby grants to EMC the license rights set forth in Exhibit 3 (the "Pentaho Services").

 

8.2        EMC hereby acknowledges and agrees that the license granted to EMC in Exhibit 3 is provided "AS-IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED BY ACXIOM OR ITS AFFILIATES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED PURPOSE, COMPLETENESS, ACCURACY, AVAILABILITY, TITLE, NON-INFRINGEMENT, TRADE USEAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, THE ENTIRE RISK AS TO THE PEFORMANCE OF THE PENTAHO SERVICES ARE WITH EMC AND THERE IS NOT A GUARANTEE THAT THE LICENSE PROVIDED UNDER THE TERMS OF THIS AMENDMENT WILL MEET THE MINIMUM REQUIREMENT OF EMC, BE ERROR FREE OR OPERATE WITHOUT INTERRUPTUION.

 

ARTICLE NINE- RELEASES

 

9.1.      Except for the rights and obligations expressly created or reserved by this Amendment and except for a breach of the confidentiality or intellectual property terms of the Agreement (including this Amendment), EMC and Acxiom hereby release, acquit and forever discharge Acxiom and EMC respectively from any and all Claims solely arising from, based on or related to the Agreement, from the beginning of time to the Amendment Effective Date. As used herein, “Claims” means any and all actions, causes of action, claims, costs, damages, debts, demands, expenses, liabilities, losses, obligations, proceedings and suits of every kind and nature, liquidated or unliquidated, fixed or contingent, in law, equity or otherwise, and whether presently known or unknown, accrued or not accrued.

ARTICLE TEN- GENERAL

 

10.1     All other terms and provisions of the Agreement shall remain in full force and effect, if unchanged by this Amendment.

 

10.2     This Amendment may be executed in counterpart copies, each of which, when executed and delivered, shall be an original, but such counterparts shall together constitute one and the same instrument.

 

10.3     This Amendment may be amended only by an instrument in writing signed by all parties hereto.

 

10.4     No press release or other public disclosure, whether written, electronic or oral, of the terms and existence of this Amendment and the transactions contemplated hereby shall be made by either party or any of their respective affiliates or representatives without the express written consent of the other party.

 

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10.5     Acxiom may assign or transfer its rights or obligations under this Amendment, unless such assignment or transfer is due to a change of control of Acxiom to a third party that is listed as an EMC Competitor on Exhibit 2. For purposes of this Amendment, a “change of control” shall mean (i) a transaction or series of related transactions in which a person or entity acquires, directly or indirectly, or acquires the right to acquire, directly or indirectly, (a) a majority of the voting securities of Acxiom, (b) the right to control the appointment or voting into office of a majority of the members of Acxiom’s board of directors, or (c) all or substantially all of the assets of Acxiom, or (ii) a transaction or series of related transactions which result in Acxiom’s stockholders immediately subsequent to such transaction or series of transactions owning less than a majority of the voting securities of Acxiom or any successor thereto. With regard to the effect of Exhibit 2 upon this Section 10.5, the parties acknowledge and agree that only the listing of up to ten (10) entities is applicable to this Section 10.5, and that the remainder of Exhibit 2 has no effect upon this Section 10.5. With regard to any changes in the listing as it pertains to this Section 10.5 and absent mutual agreement of the parties, EMC shall have the right to unilaterally revise the list in January of each year that this Section 10.5 is in effect by giving written notice to Acxiom of any modifications to the listing by January 31 of such year; provided, however, that in the event of a public announcement that Acxiom has combined, or will be combining, with a third party who is not then currently on the listing of EMC Competitors, such third party shall not be a candidate to be added to the listing by EMC. In addition, the parties acknowledge and agree that this specific Section 10.5 shall expire and have no further force or effect upon the parties as of March 31, 2010.

 

10.6     The provisions of Section 7 of the Agreement (Rights of Buyer) are deleted in their entirety and replaced with “[Intentionally Omitted].”

 

10.7     This Amendment shall be deemed to be Confidential Information of both EMC and Acxiom.

 

 

10.9     All notices, requests, demands, consents and communications necessary or required under this Amendment or the Agreement shall be delivered by hand or sent by registered or certified mail, return receipt requested, or by overnight courier, or by facsimile (receipt confirmed) to Acxiom at the following address:

 

Counsel

 

 

[Signature Page to Follow]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the Amendment Effective Date first written above.

 

 

 

 

 

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EXHIBIT 1

 

VERSIONS 1.0 AND 2.0 OF THE BASE TECHNOLOGY- AS OF DECEMBER 28, 2007

 

 

Base Technology

 

The following list of technology components is indexed and corresponds with the attached Customer Information Infrastructure Grid Component Descriptions document dated December 20, 2005 (the “Technology Detail”) which includes the detailed information on each component, including (i) a general description of the component; (ii) Features/Functions; (iii) Benefits; (iv) Competition; (v) Advantages; (vi) Future Plans; (vii) Languages and Dependencies; and (viii) Glossary terms.

 

The Technology Detail includes a Technology List Document which sets for those components which are Base Technology and those which are Other Technology as such terms are defined in the Agreement and cross-references with the contents section of the Technology Detail. Assets identified as Other Technology in the Technology List Document are Excluded Assets.

 

 

 

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License Agreements

 

All of the Licenses identified in the Third Party Software Spread Sheet below (and the code that they cover ) except the licenses identified as Excluded Licenses (and the code they cover):

 

THIRD PARTY SOFTWARE SPREADSHEET

 

 

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And, all of the Licenses identified in the Development Tool Spread Sheet below (and the code that they cover) except the licenses identified as Excluded Licenses (and the code they cover):

 

DEVELOPMENT TOOL SPREAD SHEET

 

 

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And, all of the Licenses identified in the Second Development Tool Spread Sheet below (and the code that they cover) except the licenses identified as Excluded Licenses (and the code they cover):

 

SECOND DEVELOPMENT TOOL SPREAD SHEET

 

 

 

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Excluded License Agreements

 

 

Development Agreements

 

 

 

 

 

 

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dEXHIBIT 2

 

EMC Competitors

 

 

 

EMC reserves the right to modify the companies this list upon ten (10) days written notice to Acxiom, provided that there will not be more then (10) companies identified on this list at any one time.

 

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EXHIBIT 3

 

Pentaho Services

 

Acxiom hereby grants to EMC a perpetual, unlimited, non-exclusive, world-wide fully paid up license and right to use exclusively within the Current Grid IP the Pentaho Management Services (Group C) below.

 

Acxiom hereby grants to EMC a fully paid, irrevocable, unrestricted, perpetual, non-exclusive, assignable, transferable, sub-licensable and reproducible license to use the Acxiom Proprietary Components (Group B below) for all corporate purposes, including but not limited to right to use, make, modify, distribute, create derivative works of and otherwise develop and commercialize the Acxiom Proprietary Components. EMC shall own all right, title and interest in any derivative works created by or on EMC's behalf.

 

The Pentaho Open Source Components (Group A below) are licensed in accordance with their respective open source licenses.

 

 

 

 

 

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