exhibit10_1.htm


    EXHIBIT
10.1

      

      
  

      CERTAIN
INFORMATION (INDICATED BY ASTERISKS) IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.  

      CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.

       

       

      Transition
Agreement

      


      This
Transition Agreement (“Agreement”) is entered into as of October 24, 2008 (the
“Effective Date”), by and between Time Warner Cable Inc., a Delaware corporation
(“TWC”), and Primal Solutions, Inc., a Delaware corporation
(“Primal”).

      


      Recitals

      


      A.           TWC,
as assignee of Time Warner Cable Information Services (Maine), LLC, and Primal
are Parties to (i) that certain Master Software License Agreement, dated
December 11, 2002 (as amended, the “License Agreement”), and (ii) that certain
Professional Services Agreement, dated December 2002, for provision of Rating
and Mediation services in support TWC’s Digital Phone (as
amended, the “Services Agreement” and, together with the License Agreement, the
“2002 Agreements”);

      


      B.           In
addition to the 2002 Agreements, TWC and Primal have executed certain Work
Orders that authorize Primal to provide services for or on behalf of TWC
identified as Billing Authorization TWC126, Verizon OA/DA processing, Quotation
TWC143, Monthly Data Mart Support, TWCR 132, Hosting Charges in 2007/2008, and
TWCR116, Marketing Dashboard (collectively, “the Work Orders”);

      


      B.           As
permitted under the 2002 Agreements, TWC hereby gives notice of its desire to
terminate the 2002 Agreements and the Work Orders to Primal;

      


      C.           The
Parties desire to set forth in this Agreement certain terms and conditions with
respect to the transition assistance to be provided by Primal in connection with
the termination of the 2002 Agreements and the additional fees to be paid by TWC
in connection with the provision of those services.

      


      Agreements

      


      In consideration of the foregoing and
the covenants set forth below, the Parties agree as follows:

      


      1.           Definitions.  All
capitalized terms used in this Agreement and not expressly defined in this
Agreement shall have the respective meanings given to such terms in the License
Agreement or Services Agreement, as applicable.  Primal and TWC are
collectively referred to as the "Parties" and each, individually, as a
"Party".

      


      2.           Transition
Term.  The term of this Agreement (the “Transition Term”) will
commence upon execution by the Parties and will continue until February 28,
2009.  During the Transition Term, all of the terms and conditions of
the 2002 Agreements, including payment-related terms, will continue in full
force and effect.  Upon the expiration of the Transition Term, the
2002 Agreements and the Work Orders will terminate.

       

       

      
        
          
            
              CONFIDENTIAL                                           Page 1 of
9

            

             


          

          
            
            

            
              

            

          

          
             


          

        

      

      
 

      3.           Transition
Services.

      


      3.1.           Transition
Services.  During the Transition Term, Primal will use
commercially reasonable best efforts to provide to TWC services that are
reasonably requested by TWC in order for TWC to effect an orderly transition
from the Software to TWC’s alternative product and platform (the “Transition
Services”) in accordance with the transition schedule set forth in Schedule 1 to this
Agreement, as it may be modified from time to time by written agreement of TWC
and Primal (any such modification requested by one Party will be considered and
acted upon in good faith by the other Party). The Transition Services will
include (i) the services described in the 2002 Agreements, subject to the
limitations of hours set forth therein, (ii) the services described in
Authorization Letter #TWCR188, dated October 8, 2008 (the “Authorization
Letter”), and (iii) the services described in Schedule 2 to this
Agreement.

      


       

      3.2.           Charges
and  Payment.  During the Transition Term, TWC will
continue to pay to Primal all fees due and owing under the 2002 Agreements and
the Work Orders for the use of the Software and for services provided by
Primal.  In addition, TWC will pay an additional amount to Primal for
(i) the Transition Services described in the Authorization Letter in accordance
with the pricing and payment terms set forth in the Authorization Letter, and
(ii) to decommission the hardware infrastructure used in connection with the
Software and services, as described in Schedule 2 to this
Agreement, in accordance with the pricing and payment terms set forth in Schedule
2.  During the Transition Term, all invoices from Primal to TWC
shall be paid net ten days with a two percent (2%) discount of the invoice
amount.

       

      


      4.           Grant of Limited
License. Notwithstanding anything
to the contrary in the 2002 Agreements, including Section 2.6 of the License
Agreement, Primal hereby grants to TWC a limited, non-transferable,
non-sublicensable, non-exclusive license to the Software, and all Intellectual
Property Rights in and to the Software, for its use (including use by its
employees, agents and contractors solely on behalf of TWC) in connection with
the transition from the Software to TWC’s replacement product and
platform.  Without limiting the generality of the foregoing grant of
rights, TWC shall have the right to develop and use, during and after the
Transition Term, reports and reporting formats (including the “look and feel”
thereof) that are the same or similar to the reporting formats used by Primal in
providing its services under the 2002 Agreements and Work Orders; provided,
however, that TWC shall not have the right to develop, during and after the
Transition Term, widgets, graphics, reports or reporting formats (including the
“look and feel” thereof) that are the same or similar to the reporting formats
used by Primal in providing its services under TWCR116, Marketing
Dashboard.  Except as expressly granted in this Section 4, (i) TWC
receives no ownership, license, or other interest in any intellectual property
created or delivered by Primal, whether in connection with its performance of
this Agreement or otherwise, and (ii) Primal receives no ownership, license, or
other interest in any intellectual property created or delivered by TWC, whether
in connection with its performance of this Agreement or otherwise.

       

       

      
        
          
            
              CONFIDENTIAL                                                       Page 2 of
9

            

             


          

          
             


            
              

            

          

          
             


          

        



      5.           Confidentiality.  The
confidentiality terms set forth in Section 4 of the License Agreement are
incorporated into this Agreement by this reference and will apply to the Parties
performance of their respective obligations during the Transition
Term.

      


      6.           Entire
Agreement.  This Agreement (including Schedules 1 and 2)
and the Authorization Letter constitute the entire agreement between the Parties
with respect to the subject matter of this Agreement and the Authorization
Letter and supersede all other prior or contemporaneous understandings or
agreements with respect thereto.  In the event of a conflict between
this Agreement or the Authorization Letter and the 2002 Agreements, the terms of
this Agreement and the Authorization Letter, as applicable, shall
govern.  No amendment to this Agreement is valid unless in writing and
signed by both Parties.  Any requirement for a signature in this
Agreement or any amendment may be satisfied by facsimile transmission of an
original signature.

      


      7.           Limitation of
Liability.  Except for a Party’s willful misconduct, neither
Party will have any liability to the other Party under this Agreement for
indirect, consequential, exemplary, special, incidental or punitive
damages.

      


      8.           Survival of
Provisions.  Upon the expiration or earlier termination of the
Transition Term, the provisions in Sections 4, 5, 6 and 7 of this Agreement will
survive, in addition to the surviving provisions of the 2002 Agreements as set
forth therein.

      


      [Signature
Page Follows]

       

       

      
        
          
            
              CONFIDENTIAL                                                       Page 3 of
9

            

             


          

          
             


            
              

            

          

          
             


          

        

      



      The
Parties have each executed this Agreement as of the date set forth below the
signature of the Party’s authorized signatory.

       

      
      

       

      
        	
                AGREED:

                 

              	 	 	
                AGREED:

                 

              	 
	Time Warner Cable
      Inc.	 	Primal Solutions,
      Inc.
	
                 

                By:

              	
                 

                /s/ Frank
      Boncimino

              	 	
                 

                By:

              	
                 

                /s/ Joseph R. Simrell

              
	
                 

                Name:

              	
                 

                Frank Boncimino

              	 	
                 

                Name:

              	
                 

                Joseph R. Simrell

              
	
                 

                Title:

              	
                 

                Senior Vice President

              	 	
                 

                Title:

              	
                 

                CEO

              
	
                 

                Date:

              	
                 

                November 6, 2008

              	 	
                 

                Date:

              	
                 

                November 20, 2008

              


      

       

      


      
        
          
            
              CONFIDENTIAL                                                      Page 4 of
9

            

             


          

          
            
            

            
              

            

          

          
             


          

        



      


      Schedule
1

      to

      Transition
Agreement

      


      Transition
Schedule

      


      


      10/17/08
- [***]

       

      10/22/08
- Complete development for settlement and revenue assurance tools including
reports and optimized queries  (~35-40 reports).  3 months
(August, September and up to 10/22) of filtered data must also be online with
all aggregations/optimizations completed)

      


      10/22/08
- 11/7/08 - User acceptance of settlement and revenue assurance
tools

      


      11/7/08
-
[***]  This is a big component of invoice settlement, so this
1st settlement is more of an advanced test of the tools combined with the
data

      


      11/15/08
- [***]

      


      11/15/08
- 11/22/08 - User acceptance testing of first version of wholesale rating
functionality

      


      12/1/08 -
cutover begins, Primal continues to receive all rated usage through December,
with billing files being sent for data prior to 12/1

      


      12/1/08 -
12/31/08 - [***]

      


      12/1/08 -
12/31/08 - Primal runs billing adjustment files for unrated records ([***])

      


      12/7/08 -
1st full, parallel Sprint invoice settlement

      


      12/10/08
- [***]

      


      12/15/08
- Primal runs invoice cycle for National

      


      12/15/08
- [***]

      


      12/15/08
- 12/22/08 - User acceptance testing of final version of wholesale rating
functionality

      


      1/1/09 -
1/31/09 - [***]

       

       

      
        
          

        

        [***]  Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.

         

      

       

      
        
          
            
              CONFIDENTIAL                                                       Page 5 of
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      1/1/09 -
1/31/09 - [***]

      


      1/9/08 -
[***]

      


      1/10/08 -
[***]

      


      1/15/08 -
[***]

       

       

        
          

        

      

      [***]  Confidential
portion omitted and filed separately with the Securities and Exchange
Commission.

       

       

      
        
          
            
              CONFIDENTIAL                                                       Page 6 of
9

            

             


          

          
             


            
              

            

          

          
             


          

        

      

      
 

      Schedule
2

      to

      Transition
Agreement

      


      Decommission of TWC
Hardware

      


      
        	
                A.  

              	
                Incorporation
      by reference of the Services
Agreement.

              


      

       

      The
services set forth in this Schedule 2 will be subject to the terms and
conditions of the Transition Agreement.

      


      
        	
                B.  

              	
                Description
      of Services:

              


      

      


      Primal
will perform the decommission and removal of the Sun hardware.  This
effort will begin no later than March 1st,
2009.  TWC will be responsible for coordinating the shutdown and
removal of the Hitachi hardware with Primal supervision / approval.

       

      The
summary activities for this project include but are not limited to:

       

      
        	
                ·  

              	
                Datacenter
      labor to decommission power, network,
etc.

              


      

      
        	
                ·  

              	
                Primal
      labor to wipe disks and restore hosts to factory
      specifications.

              


      

      
        	
                ·  

              	
                Primal
      labor to remove hardware from racks and pack for
  shipping.

              


      

      
        	
                ·  

              	
                Primal
      labor to decommission TWC and CLEC VPN hardware and network
      access.

              


      

      
        	
                ·  

              	
                Costs
      for packing materials, shipping and
  coordination.

              


      

      
        	
                ·  

              	
                Final
      month of the datacenter fees (one month after
  cut-over)

              


      

      
        	
                ·  

              	
                Project
      management fees.

              


      

      


      Requirements:

       

      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            
                                              
                                                
                                                  
                                                    
                                                      
                                                        
                                                          
                                                            
                                                              
                                                                
                                                                  
                                                                    
                                                                      
                                                                        
                                                                          
                                                                            
                                                                              
                                                                                
                                                                                  
                                                                                    
                                                                                      
                                                                                        
                                                                                          
                                                                                            
                                                                                              
                                                                                                
                                                                                                  
                                                                                                    
                                                                                                      
                                                                                                        
                                                                                                          
                                                                                                            
                                                                                                              
                                                                                                                
                                                                                                                  
                                                                                                                    
                                                                                                                      
                                                                                                                        
                                                                                                                          
                                                                                                                            
                                                                                                                              
                                                                                                                                
                                                                                                                                  
                                                                                                                                    
                                                                                                                                      
                                                                                                                                        
                                                                                                                                          	 	
                                                                                                                                                  Item

                                                                                                                                                	
                                                                                                                                                  Product

                                                                                                                                                	
                                                                                                                                                  LOE
      in Days

                                                                                                                                                	 
	 	
                                                                                                                                                  a.

                                                                                                                                                	
                                                                                                                                                  Datacenter
      staff labor for 3 days

                                                                                                                                                	
                                                                                                                                                  3
      days

                                                                                                                                                	 
	 	
                                                                                                                                                  b.

                                                                                                                                                	
                                                                                                                                                  Primal
      time to prepare/wipe hosts and storage

                                                                                                                                                	
                                                                                                                                                  12
      days

                                                                                                                                                	 
	 	
                                                                                                                                                  c.

                                                                                                                                                	
                                                                                                                                                  Primal
      time to remove TWC hardware from rack(s)

                                                                                                                                                	
                                                                                                                                                  5
      days

                                                                                                                                                	 
	 	
                                                                                                                                                  d.

                                                                                                                                                	
                                                                                                                                                  Primal
      decommission of Vendors & VPN(s)

                                                                                                                                                	
                                                                                                                                                  5
      days

                                                                                                                                                	 
	 	
                                                                                                                                                  e.

                                                                                                                                                	
                                                                                                                                                  Packing
      labor, materials, services and shipping (not including
SAN)

                                                                                                                                                	
                                                                                                                                                  5
      days + material / fees

                                                                                                                                                	 
	 	
                                                                                                                                                  f.

                                                                                                                                                	
                                                                                                                                                  Primal
      Support for SAN decommission

                                                                                                                                                	
                                                                                                                                                  3
      days

                                                                                                                                                	 
	 	
                                                                                                                                                  g.

                                                                                                                                                	
                                                                                                                                                  Final
      Month datacenter fees (1 month following final cut-over)

                                                                                                                                                	
                                                                                                                                                  One
      Month

                                                                                                                                                	 
	 	
                                                                                                                                                  h.

                                                                                                                                                	
                                                                                                                                                  Primal
      project management fees

                                                                                                                                                	
                                                                                                                                                  6
      days

                                                                                                                                                	 
	 	 
      	 
      	 
      	 
	 	 
      	
                                                                                                                                                  Total
      One-Time Fees

                                                                                                                                                	
                                                                                                                                                  $[***]

                                                                                                                                                	 


                                                                                                                                        

                                                                                                                                      

                                                                                                                                    

                                                                                                                                  

                                                                                                                                

                                                                                                                              

                                                                                                                            

                                                                                                                          

                                                                                                                        

                                                                                                                      

                                                                                                                    

                                                                                                                  

                                                                                                                

                                                                                                              

                                                                                                            

                                                                                                          

                                                                                                        

                                                                                                      

                                                                                                    

                                                                                                  

                                                                                                

                                                                                              

                                                                                            

                                                                                          

                                                                                        

                                                                                      

                                                                                    

                                                                                  

                                                                                

                                                                              

                                                                            

                                                                          

                                                                        

                                                                      

                                                                    

                                                                  

                                                                

                                                              

                                                            

                                                          

                                                        

                                                      

                                                    

                                                  

                                                

                                              

                                            

                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

      


      
        
          
            
              CONFIDENTIAL                                                       Page 7 of
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                  C.  

                	
                  Daily
      or hourly rate and skill classification of personnel to be
      provided:

                


        

         

        Blended rate
for hardware engineers, network technicians, software engineers, database
administrators, operations staff and management.

        
          


          
            	
                    D.  

                  	
                    Travel
      and Living Expenses:

                  


          

           

          
            No travel
will be necessary.  All work will be done remotely or from Primal
offices in Irvine, CA.

             

            
              
                
                  	
                          E.  

                        	
                          Total
      fees for services performed in section B.
above:

                        


                

                The total fees of the services/products to be provided by Primal under this
Schedule 2 are:

              

              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            
                                              
                                                
                                                  
                                                    
                                                      
                                                        
                                                          
                                                            
                                                              
                                                                
                                                                  
                                                                    
                                                                      
                                                                        
                                                                          
                                                                            
                                                                              
                                                                                
                                                                                  
                                                                                    
                                                                                      
                                                                                        
                                                                                          
                                                                                            
                                                                                              
                                                                                                
                                                                                                  
                                                                                                    
                                                                                                      
                                                                                                        
                                                                                                          
                                                                                                            
                                                                                                              
                                                                                                                
                                                                                                                  
                                                                                                                    
                                                                                                                      
                                                                                                                        
                                                                                                                          
                                                                                                                            
                                                                                                                              
                                                                                                                                
                                                                                                                                  
                                                                                                                                    
                                                                                                                                      
                                                                                                                                        
                                                                                                                                          
                                                                                                                                            
                                                                                                                                              
                                                                                                                                                
                                                                                                                                                  
                                                                                                                                                    
                                                                                                                                                      
                                                                                                                                                        	 	
                                                                                                                                                                Item

                                                                                                                                                              	
                                                                                                                                                                Task

                                                                                                                                                              	
                                                                                                                                                                LOE
      in Days

                                                                                                                                                              	Price 	 
	 	
                                                                                                                                                                a.

                                                                                                                                                              	
                                                                                                                                                                Datacenter
      staff labor for 3 days

                                                                                                                                                              	
                                                                                                                                                                3

                                                                                                                                                              	$[***]	 
	 	
                                                                                                                                                                b.

                                                                                                                                                              	
                                                                                                                                                                Primal
      time to prepare/wipe hosts and storage

                                                                                                                                                              	
                                                                                                                                                                12

                                                                                                                                                              	$[***]	 
	 	
                                                                                                                                                                c.

                                                                                                                                                              	
                                                                                                                                                                Primal
      time to remove TWC hardware from rack(s)

                                                                                                                                                              	
                                                                                                                                                                5

                                                                                                                                                              	$[***]	 
	 	
                                                                                                                                                                d.

                                                                                                                                                              	
                                                                                                                                                                Primal
      decommission of Vendors & VPN(s)

                                                                                                                                                              	
                                                                                                                                                                5

                                                                                                                                                              	 $[***]	 
	 	
                                                                                                                                                                e.

                                                                                                                                                              	
                                                                                                                                                                Packing
      labor, materials, services and shipping (not including
SAN)

                                                                                                                                                              	
                                                                                                                                                                5
      days+material / fees

                                                                                                                                                              	 $[***]	 
	 	
                                                                                                                                                                f.

                                                                                                                                                              	
                                                                                                                                                                Primal
      Support for SAN decommission

                                                                                                                                                              	
                                                                                                                                                                3

                                                                                                                                                              	 $[***]	 
	 	
                                                                                                                                                                g.

                                                                                                                                                              	
                                                                                                                                                                Final
      Month datacenter fees (1 month following final cut-over)

                                                                                                                                                              	
                                                                                                                                                                N/A

                                                                                                                                                              	 $[***]	 
	 	
                                                                                                                                                                h.

                                                                                                                                                              	
                                                                                                                                                                Primal
      project management fees

                                                                                                                                                              	
                                                                                                                                                                6

                                                                                                                                                              	 $[***]	 
	 	 
      	 
      	 
      	 	 
	 	 
      	
                                                                                                                                                                Total
      One-Time Fees

                                                                                                                                                              	
                                                                                                                                                                 

                                                                                                                                                              	 $[***]	 


                                                                                                                                                      

                                                                                                                                                    

                                                                                                                                                  

                                                                                                                                                

                                                                                                                                              

                                                                                                                                            

                                                                                                                                          

                                                                                                                                        

                                                                                                                                      

                                                                                                                                    

                                                                                                                                  

                                                                                                                                

                                                                                                                              

                                                                                                                            

                                                                                                                          

                                                                                                                        

                                                                                                                      

                                                                                                                    

                                                                                                                  

                                                                                                                

                                                                                                              

                                                                                                            

                                                                                                          

                                                                                                        

                                                                                                      

                                                                                                    

                                                                                                  

                                                                                                

                                                                                              

                                                                                            

                                                                                          

                                                                                        

                                                                                      

                                                                                    

                                                                                  

                                                                                

                                                                              

                                                                            

                                                                          

                                                                        

                                                                      

                                                                    

                                                                  

                                                                

                                                              

                                                            

                                                          

                                                        

                                                      

                                                    

                                                  

                                                

                                              

                                            

                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

             

            One-hundred
percent (100%) of the total Fees are to be paid to Primal by March 1st,
2009.

             

            
              
                
                  
                    CONFIDENTIAL                                                       Page 8 of
9

                  

                   


                

                
                  
                  

                  
                    

                  

                

                
                   


                

              

            

          

        

      

         


      
        


        
          	
                  F.  

                	
                  Key
      Project Assumptions:

                


        

        
          


          
            
              	
                      ·

                    	
                       

                    	TWC
      will be responsible for planning and execution of the SAN decommission,
      only after the Primal data mart is confirmed for decommission. 
	·	 	TWC
      will coordinate with Hitachi or other 3rd
      party to properly decommission the SAN from the datacenter.
	·	 	TWC
      will assume all costs related to removal of the Hitachi SAN from the
      datacenter including materials and transportation.
	 ·	 	TWC
      will coordinate all datacenter activities only through the Primal
      representative.
	 ·	 	TWC
      will NOT contact the datacenter directly regarding any aspect of this
      project.
	 ·	 	TWC
      will reimburse Primal for any reasonable incidental material costs or
      expenses that may be incurred for this
project.


            

          

        

      

       

      Any work
to be performed by Primal not covered in this Schedule 2 will require a written
modification to this Schedule 2 as set forth in the Transition
Agreement.

       

      
      

       

      
 

      
        
          
            
              CONFIDENTIAL                                                       Page 9 of
9