License Agreement

Exhibit 10.5


Portions of this exhibit have been omitted pursuant to a request for confidential treatment. The omitted portions, marked "[ *** ]", have been
--- separately filed with the Securities and Exchange Commission.


LICENSE AGREEMENT # 1020-0320-6-0001


LICENSE AGREEMENT
-----------------
THIS AGREEMENT made and executed this 19th day of November, 1997 between JACK HENRY & ASSOCIATES, INC. ("JHA") P. O. Box 807, 663 Highway 60, Monett, MO 65708 and COLORADO BUSINESS BANK, N.A. ("LICENSEE") having its principal office at 821 17th Street, Denver, CO 80202.


WITNESSETH:


WHEREAS, JHA is engaged in the business of providing various services relating to the design of computer software programming for use by financial institutions; and


WHEREAS, Licensee is a financial institution engaged in providing various financial services; and


WHEREAS, Licensee agrees to obtain from JHA, and JHA by its execution of this Agreement, agrees to furnish to Licensee on the terms and conditions contained herein all of the computer software and services detailed in Exhibit A which is specifically made part of this Agreement.


NOW, THEREFORE, in consideration of the premises and in further consideration of the performance of the terms and provisions herein contained, JHA and Licensee do hereby contract and agree as follows:


1. Software Definition. In this Agreement Software shall mean only the
-------------------- computer application programs, manuals, specifications, other documentation or services itemized in Exhibit A,


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Portions of this exhibit have been omitted pursuant to a request for confidential treatment. The omitted portions, marked "[ *** ]", have been
--- separately filed with the Securities and Exchange Commission.


together with all future releases, modifications and customization furnished or performed by JHA; in any printed, machine readable or other form including but not limited to listings, manuals, and magnetic media.


2. Fees. Licensee agrees to pay to JHA the fees, payments and expenses
----- set out in attached Exhibit A, for the licensed use of computer Software programs and services described in said Exhibit A.


In addition to fees and payments provided for in this Agreement, Licensee will promptly reimburse JHA for all actual, out-of-pocket expenses including but not limited to travel, lodging, meals, telephone, postage and shipping costs together with any taxes related to this Agreement that might be levied by any governmental body against JHA, other than personal property taxes or income taxes.


Licensee will pay JHA [ *** ] interest per month [ *** ]
--- --- all attorney fees and expenses actually incurred by JHA in collecting any delinquent or past due fees, payments or reimbursements of any kind due JHA by Licensee.


3. License. JHA hereby grants and Licensee accepts a non-transferable
-------- and non-exclusive license (the "License") to use the Software described in Exhibit A for the original term and all renewals of this Agreement.


The License granted herein is restricted as follows:


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The Software will be used only to process data of those financial institutions listed in Exhibit B hereto, on IBM AS/400 equipment operated only by Licensee employees or the employees of such financial institutions.


Additional license fees for processing data for additional financial institutions, other than those listed on Exhibit B, and for processing acquisitions by any of the financial institutions listed on Exhibit B, on JHA Software as described in Exhibit A, will be determined by an addendum to this Agreement.


The License and the Software may not be assigned, sublicensed, or otherwise transferred or copied in any manner by Licensee without prior written consent from JHA. Licensee agrees not to remove or alter proprietary notices of JHA on any of the materials associated with the Software.


Licensee shall use the Software only at the site locations of Licensee or the financial institutions that are described in Exhibit B hereto. However off- site testing and/or disaster processing is permitted provided the owner/operator of the off-site facility has signed JHA's Confidentiality Agreement, and JHA is promptly notified by Licensee.


Licensee also covenants and warrants to JHA that all other financial institutions being processed and off-site test/disaster facilities will conform to, abide by and be governed and bound by this License Agreement the same as though they were a signing Licensee. Licensee accepts full responsibility and liability to JHA for any violation or breach of this License Agreement by any other financial institution being processed by Licensee and an off-site test/disaster facility used by Licensee. If Licensee or any other financial institution being processed by Licensee or off-site test/disaster facility violates or breaches this or any other written agreement it has with JHA or any of its subsidiaries, and such violation or breach is not corrected within thirty days after Licensee receives written notice thereof from JHA, then JHA may terminate Licensee's license to use the Software, and Licensee will cease using the Software and will return all of same to JHA. Licensee further covenants and warrants


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to JHA that neither Licensee, nor any of its affiliated companies, nor any financial institutions processed by Licensee, will employ, in any capacity, any personnel of JHA or any of its affiliated companies within one year of their employment termination from JHA or any of its affiliated companies, unless JHA consents in writing.


4. Warranties. JHA warrants that unmodified Software will operate in
----------- accordance with the then current documentation provided by JHA. This warranty is valid for sixty (60) days from the date of last initial installation of all of said Software. Under this warranty, JHA will correct any program errors in the unmodified Software at no extra charge to Licensee. THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, OR ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL JHA BE LIABLE FOR INDIRECT, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES.


5. Proprietary Product. All Software, customization, modification,
-------------------- releases and optional modules furnished now or hereafter by JHA to Licensee, shall be and remain the property of JHA, subject to the rights of the Licensee as defined in this Agreement.


6. Term. This Agreement grants the Licensee a non-exclusive, paid-up
----- license to use the Software described in Exhibit A, in the manner provided in paragraph 3 above, for twenty-five (25) years immediately subsequent to the date of this Agreement, except as modified by conditions described in paragraph 9 of this Agreement.


7. Trade Secret. Licensee hereby acknowledges that the Software provided
------------- by JHA under this Agreement is a trade secret of JHA, and as such is protected by civil and criminal law, is very valuable to JHA, and that its use must be carefully and continuously controlled. In accordance with the aforesaid, Licensee agrees to use the highest standard of diligence to ensure the confidentiality of the


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Software, and will prohibit the unauthorized access to, use or duplication of any of the Software. Licensee agrees to keep all machine-readable Software in a secure place which is as secure as Licensee provides for its most confidential materials. Licensee will not cause, permit nor allow the Software or materials provided by JHA to be copied, duplicated transcribed, reverse engineered, sold to, revealed to, or used by any other person, firm or company without prior written consent of JHA. Licensee agrees to notify JHA immediately of the unauthorized possession, use or knowledge of any item supplied under this Agreement by any person or organization not authorized by this Agreement to have such possession, use or knowledge. Licensee will promptly furnish JHA full details of such possession, use or knowledge, and will cooperate fully with JHA in any litigation against third parties deemed necessary by JHA to protect its proprietary rights. Licensee's compliance with the above shall not be construed in any way as a waiver of JHA's right to recover damages or obtain other relief against Licensee for its negligent or intentional harm to JHA's proprietary rights or for breach of contractual rights. If Licensee attempts or allows others to attempt to use, copy, duplicate, transcribe or convey the items supplied by JHA pursuant to this Agreement, in a manner contrary to the terms of this Agreement or in derogation of JHA's proprietary rights, whether these rights are explicitly herein stated, determined by law, or otherwise, JHA shall have, in addition to any other remedies available to it at law or equity, the right to injunctive relief enjoining such actions, Licensee hereby acknowledging that irreparable harm will occur to JHA and that other remedies are inadequate. This paragraph will survive expiration or termination of this Agreement.


8. Compliance with Laws. Licensee assumes all responsibility in assuring
--------------------- compliance with all regulations relating to Licensee's use of the Software.


9. Business Termination. At JHA's option, all of Licensee's rights under
--------------------- this Agreement shall terminate, and the Software shall be returned to JHA if the ownership or management of Licensee


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or any of its subsidiaries changes by reason of voluntary or involuntary bankruptcy, receivership, conservatorship, custodianship, assignment for benefit of creditors, seizure of assets, liquidation, dissolution, ceasing to do business, or action by FDIC, RTC or other State or Federal authorities which would divest control from present ownership and management of Licensee.


In the event JHA ceases to do business, the successor to JHA's assets will be bound by this Agreement the same as JHA, and Licensee may continue to use the Software under all the terms and conditions of this Agreement. If there is no successor to JHA's assets, then the Software shall become the non-exclusive proprietary product of Licensee subject to all of the confidentiality restrictions described in paragraph 7 above, except that Licensee may reveal Software and/or materials to third parties for the sole purpose of maintenance and customization of the Software for the sole use of Licensee, provided said third parties have signed similar written confidentiality restrictions.


10. Confidentiality. JHA and Licensee each agree that all information
---------------- communicated to it by the other, including the terms and conditions of this Agreement, whether before the effective date or during the term of this Agreement, shall be received in strict confidence, shall be used only for the purposes of this Agreement, and that no such information shall be disclosed by the recipient party, its agents or employees without prior written consent of the other party, unless such information is publicly available from other than a breach of this provision. Each party agrees to take all reasonable precautions to prevent the disclosure to outside parties of such information, including without limitation, the terms of this Agreement except as may be necessary by reason of legal, accounting or regulatory requirements beyond the reasonable control of JHA or Licensee, as the case may be.


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11. Delivery. Delivery of said Software shall be at a time mutually
--------- agreed upon by JHA and Licensee, but in no instance shall such date be longer than ninety (90) days following the execution of this Agreement.


12. Modification. Licensee may modify source code or procedures, but
------------- shall notify JHA in writing of any modifications so made.


13. Statute of Limitations. No action arising out of this Agreement may be
----------------------- brought by Licensee or JHA more than two years after the cause of action has accrued and the injured party has actual knowledge of the accrual.


14. Complete Agreement. This document contains the entire agreement
------------------- between the parties with respect to the transactions contained herein, and it may be modified or altered only by a written instrument signed by all parties hereto. Attached Exhibits A and B are part of this Agreement.


15. Headings. The headings of each paragraph contained herein are
--------- provided only for convenience and shall not he deemed controlling.


16. Binding. This Agreement shall be binding upon and inure to the
-------- benefit of the parties hereto and their respective assigns and successors.


17. Assignability. This Agreement shall not be transferable or assignable
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