THE CONFIDENTIALITY AGREEMENT CEASE TO BE OF ANY FURTHER FORCE OR EFFECT.
IN
CONNECTION WITH THE FOREGOING, IBM AND ACI EACH HEREBY IRREVOCABLY WAIVE THE
OBLIGATIONS OF THE OTHER PARTY PURSUANT TO (I) IN THE CASE OF THE EXISTING
ALLIANCE AGREEMENT, SECTION 1.4 THEREOF, (II) IN THE CASE OF THE EXISTING SALES
INCENTIVE AGREEMENT, SECTION 11 THEREOF,
AND (III) IN THE CASE OF THE
CONFIDENTIALITY AGREEMENT, THE FIFTH PARAGRAPH OF SECTION 7 THEREOF, IN EACH
CASE WITH RESPECT TO THE PROCEDURE FOR THE TERMINATION BY THE PARTIES OF SUCH
AGREEMENTS.
SECTION 6.07.
SERVICES AGREEMENT.
(A)
EACH PARTY AGREES TO NEGOTIATE IN GOOD FAITH, UNTIL THE EARLIER OF (X) THE
DATE ON WHICH A DEFINITIVE AGREEMENT WITH RESPECT THERETO IS ENTERED INTO BY THE
PARTIES AND (Y) MARCH 31, 2008, A SERVICES AGREEMENT BASED ON THE TERMS SET
FORTH IN EXHIBIT D HERETO.
(B)
THE PARTIES AGREE THAT, IN CONNECTION WITH THE NEGOTIATION OF THE SERVICES
AGREEMENT, IBM INTENDS TO CONDUCT A DETAILED DUE DILIGENCE REVIEW OF ACI'S
OPERATIONS.
SUCH DUE DILIGENCE PROCESS SHALL INCLUDE THE REVIEW OF TECHNICAL
DETAILS, PROCUREMENT, FINANCIAL PROJECTIONS AND OTHER RELEVANT TOPICS AS THE
PARTIES MAY MUTUALLY
19
AGREE.
ACI AGREES TO PROVIDE REPRESENTATIVES OF IBM WITH ACCESS, DURING NORMAL
BUSINESS HOURS AND UPON REASONABLE NOTICE, TO ACI'S INTERNAL INFORMATION
TECHNOLOGY OPERATIONS, CONTRACTS AND FINANCIAL STATEMENTS, AND SHALL MAKE
APPROPRIATE REPRESENTATIVES OF ACI AVAILABLE FOR THE DISCUSSION OF MATTERS
REGARDING SUCH OPERATIONS AND THE RELATED OUTSOURCING.
IBM AGREES TO RESPOND TO
ACI'S REASONABLE INQUIRIES REGARDING IBM'S OUTSOURCING OPERATIONS AND TO PROVIDE
TO ACI RELEVANT SUPPORTING INFORMATION REGARDING THE SERVICES TO BE PROVIDED
UNDER THE SERVICES AGREEMENT.
(C)
NOTWITHSTANDING THE FOREGOING, NEITHER PARTY SHALL HAVE ANY OBLIGATION WITH
RESPECT TO THE PROPOSED OUTSOURCING UNLESS AND UNTIL THE PARTIES HAVE ENTERED
INTO A DEFINITIVE AGREEMENT WITH RESPECT TO SUCH SERVICES.
20
ACI WORLDWIDE, INC. HAS REQUESTED THAT
THE PORTIONS OF THIS DOCUMENT DENOTED
BY BOXES AND ASTERISKS BE ACCORDED
CONFIDENTIAL TREATMENT PURSUANT TO
RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934.
SECTION 6.08.
PAYMENTS.
(A)
IBM AGREES TO PAY, IN THE FOLLOWING INSTALLMENTS AND, IN THE CASE OF
CLAUSES (II) AND (III) BELOW, UPON THE ACHIEVEMENT OF THE FOLLOWING MILESTONES,
UP TO $[_*_] TO ACI AS FOLLOWS:
(I) $33,333,334.00 FOLLOWING THE EXECUTION BY BOTH PARTIES OF THE ALLIANCE
AGREEMENTS ON THE DATE HEREOF IN CONSIDERATION FOR THE WARRANTS (THE "INITIAL
PAYMENT") TO BE PAID AS SOON AS PRACTICABLE ON DECEMBER 17, 2007;
(II)
[_*_]
(III)
[_*_]
(B)
[_*_]
SECTION 6.09.
TRANSITION OBLIGATIONS.
(A)
IN THE EVENT OF ANY TERMINATION OF THE BASE ALLIANCE AGREEMENTS IN
ACCORDANCE WITH ARTICLE VIII, THE AMC AND THE SENIOR ALLIANCE EXECUTIVES WILL
DISCUSS THE RESPECTIVE OBLIGATIONS OF THE PARTIES IN CONNECTION WITH ANY
CUSTOMER ENGAGEMENTS EXISTING ON THE EFFECTIVE DATE OF SUCH TERMINATION,
INCLUDING (A) THE COMMITMENTS OF THE PARTIES TO COOPERATE WITH EACH OTHER IN THE
PERFORMANCE OF SUCH OBLIGATIONS AND (B) THE RESPECTIVE SERVICES TO BE PROVIDED
BY THE PARTIES IN CONNECTION WITH SUCH CUSTOMER ENGAGEMENTS OF