Exhibit 10.1
***Portions marked with asterisks within
brackets have been omitted pursuant to a request for confidential
treatment, and have been filed separately in connection with such
request.
Amendment #1
This Amendment 1 (“Amendment
1”) to the Second Amended And Restated License, Maintenance
And Distribution Agreement, effective as of the 1st day of October,
2003 (the “Distribution Agreement”), is made by and
between Reuters Limited, a company organized under the laws of
England and Wales, with offices at 85 Fleet Street, London EC4P
4AJ, United Kingdom (“Reuters”) and TIBCO Software,
Inc., a Delaware corporation, with offices at 3303 Hillview Avenue,
Palo Alto, CA 94304 (“TSI”). This Amendment 1 shall be
effective as of the last date signed below (the “AM1
Effective Date”). All capitalized Terms used herein and not
otherwise defined are defined in the Distribution
Agreement.
1. Distribution
License . The following
new section 6.7 is hereby added to Article 6 of the Distribution
Agreement:
6.7 Distribution License
.
(a) Without prejudice to the
provisions of Article 2, TSI hereby grants to Reuters the
additional right and license (the “ Distribution
License ”) during the first AM1 Term (as defined below)
to sublicense and otherwise distribute on the terms and conditions
set forth in Amendment 1 to this Agreement (“Amendment
1”), the TSI products (the “AM1 Products”) listed
on Exhibit A to Amendment 1 (“Exhibit AM1A”) solely in
conjunction with the sale by Reuters of its market data delivery
solutions to end users solely for the internal use of those end
users. The grant of rights under this section 6.7 does not convey
any right of internal use upon Reuters other than as set out in
Article 2 of the Distribution Agreement. Reuters may notify TSI of
its opportunities relating to the sale of the AM1 Products,
including the name of the end user, the anticipated value of the
transaction and the anticipated date the transaction will
close.
(b) (i) Reuters shall pay TSI
minimum annual license fees in respect of licensing revenue
recognized by Reuters in respect of the AM1 Products of $11 million
(the “Annual Minimum”). The Annual Minimum will be due
on the AM 1 Effective Date (as defined in Amendment 1) and payable
within 30 days of that date. Included within the Annual Minimum is
Updates Only maintenance in accordance with Exhibit B of this
Agreement.
(ii) At all times during which
Reuters distributes any AM1 Products pursuant to this Amendment 1,
Reuters shall calculate, on a quarterly basis, a license fee
(“License Fee”) in respect of TSI Products equal to [*
* *]% (or such lower rate as is mutually agreed by Reuters and TSI
from time to time in writing) of the license revenues attributable
to the AM1 Products recognized by Reuters in the prior quarter in
accordance with GAAP or its foreign equivalents (less any discounts
not already deducted from revenues and less any withholding taxes
included in such revenues), excluding revenues attributable to TSI
Products that are Embedded in Reuters products pursuant to clause
2.6(a)(2) of the Distribution Agreement. At the point in time
during the AM1 Term that the cumulative License Fees exceed the
Annual Minimum, Reuters shall pay such excess (the “Excess
License Fees”) within 30 days of the end of the first
calendar quarter in which the cumulative License Fees exceeded the
Annual Minimum. Thereafter, Reuters shall pay to TSI the Excess
License Fees due for sales in a calendar quarter during the AM1
Term within 30 days of the end of the applicable calendar
quarter.
(c) (i) Once Reuters begins to pay
Excess License Fees, Reuters shall also purchase Updates Only
maintenance in association with those Excess License Fees at a rate
of 0.83% of the relevant License Fees (the “Excess
Maintenance Fee”) for each month that remains in the AM1
Term.
(ii) TSI shall provide all
maintenance and support directly to end users of the AM1 Products
in accordance with the provisions of the Distribution Agreement.
Reuters shall refer the end users to TSI who will attempt to enter
into maintenance agreements with the end users in
accordance
CONFIDENTIAL
Amendment #1
with TSI’s standard maintenance and
support offerings. On a case by case basis, Reuters and TSI shall
mutually and reasonably agree the terms under which Reuters shall
provide first level support to an end user under this section 6.7.
Reuters will then provide first level support in accordance with
its standard provisions for maintenance and support and TSI shall
provide back-up, second and third level support in accordance with
its standard maintenance and support offerings, unless otherwise
agreed between Reuters and TSI in writing. In the event Reuters
sells maintenance and support to an end user and provides first
level support to that end user, Reuters and TSI anticipate that 70%
of the maintenance and support charged by Reuters will be paid to
TSI in exchange for TSI providing second and third level support.
In mutually agreeing what the terms of direct maintenance and
support to an end user by Reuters is, the parties acknowledge that
TSI’s standard practice is to attempt charge VSOE.
(d) The audit rights contained in
section 5.3(a) of this Agreement shall apply to the AM1 Products
and associated License Fees.
(e) In order to allocate fairly
revenues relating to the AM1 Products and Reuters products,
services or any other item and the provision of related support,
unless otherwise mutually and reasonably agreed between the
parties, such revenues shall be determined in accordance with the
following:
(i) Reuters shall allocate fees
fairly as between the AM1 Product license and support fees,
on
