Development Agreement

CONFIDENTIAL TREATMENT REQUESTED Execution Copy EXHIBIT 10.2


MARKETING AND DEVELOPMENT AGREEMENT


This MARKETING AND DEVELOPMENT AGREEMENT (the "Agreement"), dated March 3, 2000 (the "Effective Date"), is entered into by and among America Online, Inc., a Delaware corporation with its principal place of business at 22000 AOL Way, Dulles, VA 20166 ("AOL"), AOL MovieFone, Inc., a Delaware corporation with its principal place of business at 335 Madison Avenue, 27th Floor, New York, NY 10017 ("MF"), and Radiant Systems, Inc., a Georgia corporation with its principal place of business at 1000 Alderman Drive, Suite A, Alpharetta, GA 30202 ("RS").


WHEREAS, as part of a strategic relationship among the Parties and to provide RS with additional resources to conduct its business, AOL and RS have executed and delivered a Securities Purchase Agreement of even date herewith (the "Securities Agreement");


WHEREAS, the Parties wish to set forth the terms and conditions of their strategic relationship involving the marketing of POS Systems and Remote Ticketing Services to the Entertainment Segment (including providing certain rights in favor of MF with respect to the Initial Enhanced POS System and the New API) and joint exploration of integrated POS and Interactive Service end-to- end solutions;


NOW, THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement, and intending to be legally bound hereby, the Parties agree as follows:


ARTICLE 1
DEFINITIONS


In addition to other terms defined elsewhere herein, the following terms will have the following meanings when used herein (any term defined in the singular will have the same meaning when used in the plural and vice versa, unless stated otherwise):


1.1 "Affiliate" of any specified Person means any other Person that
--------- directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the specified Person. For the purposes of this definition, control means the direct or indirect ownership or control of fifty percent (50%) or more of the stock or other equity interests of such Person entitled to vote for the election of members of the Board of Directors or similar governing body of such Person; provided, however, that such Person shall cease to be an Affiliate if and when such equity interest becomes less than fifty percent (50%) for any reason other than as a result of dilution, and provided, further, that if such equity interest becomes less than fifty percent (50%) as a result of dilution, such Person shall cease to be an Affiliate if and when such percentage equity interest is further reduced for any reason other than as a result of dilution.


1.2 "AOL Brand Service" means the U.S. version of the America
----------------- Online(R) brand commercial online service.


1.3 "AOL Indemnitee" has the meaning set forth in Section 11.1.
--------------


1.4 "AOL Equity" has the meaning set forth in Section 5.1.3.
----------


1.5 "API" means an application program interface containing all
--- information necessary to interface with an application program, including how initiation and termination are performed, what interface protocol is used, what information is being sent and received, timing requirements and other relevant attributes of the interface.


1.6 "ATMs" means automatic ticket machines for ticketing of Venues
---- and any other specialized hardware and associated software now or hereafter manufactured or distributed by or on behalf of RS or its Affiliates for use in connection with a POS System.


1.7 "Compuserve Brand Service" means the U.S. version of the
------------------------ Compuserve(R) brand commercial online service.


1.8 "Confidential Information" has the meaning set forth in Section
------------------------ 9.1.


1.9 "Consumer Interactive POS Systems" means RS POS Systems located
-------------------------------- on retail premises that permit consumers to access the products and services of Interactive Services, and the associated revenue opportunities (including customer acquisition commissions, information and coupon dispensing and advertising), except RS POS Systems that permit consumers to access solely Internet web pages owned and controlled by the retailer upon whose premises such RS POS System is located. The Parties acknowledge that excluded from this definition are, among other things, retail systems that do not permit consumers to access the products and services of Interactive Services, including RS POS Systems that use the Internet as a means of connectivity and are neither accessible to consumers nor used to provide data to consumers (i.e., POS Systems used by the employees of businesses to account for or facilitate the retail sale of goods and services).


1.10 "Customer" means a purchaser or lessee of an RS Entertainment
-------- POS System, Enhanced POS System or any component thereof (e.g., an ATM).


1.11 "DCI Brand Service" means the U.S. version of the Digital
----------------- City(R) brand commercial online service.


1.12 "Deliverables" means reports, designs, computer software (in
------------ source code and object code form), documentation, drawings, inventions, discoveries, works of authorship, know-how, other technology and other work products developed, created or delivered by or on behalf of RS or its Affiliates in connection with the provision of Services.


1.13 "Disclosing Party" has the meaning set forth in Section 9.1.
----------------


1.14 "DSI" means DSI Technology Escrow Services, Inc.
---


1.15 "Enhanced POS System" means the Initial Enhanced POS System and
------------------- all POS Systems thereafter modified, marketed or distributed by or on behalf of RS or its Affiliates for the Entertainment Segment.


2


1.16 "Entertainment Segment" means Venues (excluding (i) restaurants
--------------------- and other establishments that primarily offer food, drink or beverage service to persons not attending an entertainment event and (ii) gasoline stations and other convenience stores).


1.17 "Exhibitor" means an entity that owns or operates a Venue where
--------- as an ordinary business activity motion pictures are exhibited or presented for consumers.


1.18 "Incentive Plan" means Exhibit E attached hereto.
--------------


1.19 "Indemnitee" has the meaning set forth in Section 11.3.
----------


1.20 "Initial Enhanced POS System" has the meaning set forth in
--------------------------- Section 2.1.


1.21 "***" means the provision of an interactive experience to
--- consumers via a software application associated with a *** business, and the associated revenue opportunities (including customer acquisition commissions, information and coupon dispensing and advertising).


1.22 "***" means the provision of computer systems consisting of
--- hardware and/or software, or of an interactive experience, that provides consumers the ability ***, and the associated revenue opportunities (including customer acquisition commissions, information and coupon dispensing and advertising).


1.23 "Interactive Service" means any entity that as a material part
------------------- of its business offers one or more of the following: (i) online or Internet connectivity services (e.g., an Internet service provider); (ii) a broad selection of aggregated third party interactive content, including entities that solely aggregate information related to Venues or sell tickets for Venues (or navigation thereto); or (iii) communications software capable of serving as the principal means through which a user creates, sends and receives electronic mail or real time online messages.


1.24 "IVR Systems" means interactive voice system.
-----------


1.25 "Losses" means losses, liabilities, suits, claims, costs,
------ expenses (including reasonable attorneys' fees actually incurred), penalties, fines, judgments and/or damages.


1.26 "Marketing Plan" means Exhibit D attached hereto.
--------------


1.27 "Mars" means the software known as "Mars" as distributed by MF
---- as of September 30, 1999.


1.28 "Mars Sequel" means the software known as "Mars Sequel" as
----------- distributed by MF as of September 30, 1999.


------------------------------- *** Denotes information that has been omitted from this Exhibit pursuant to a
confidential treatment request filed with the Commission.


3


1.29 "MF Features" has the meaning set forth in Section 3.3.
-----------


1.30 "MF System" means the network, hardware, software, and
--------- networking and telephone equipment, but excluding the POS System, used by MF now or hereafter to provide Remote Ticketing Services.


1.31 "Module" has the meaning set forth in Section 2.1.
------


1.32 "New API" means the API developed in accordance with Article 2
------- that serves as an interface between Remote Ticketing Services and the Enhanced POS System generally, and the MF System and the Enhanced POS System specifically, including any modifications thereafter agreed by the parties.


1.33 "Other RS POS Systems" means all RS POS Systems other than the
-------------------- RS Entertainment POS System and the Enhanced POS System.


1.34 "Original Specifications" means the initial specifications
----------------------- agreed to by the parties comprising substantially all of the features and functionality of *** and *** with respect to the New API and the Initial Enhanced POS System.


1.35 "Party" means AOL, MF or RS, and "Parties" means AOL, MF
----- ------- and RS.
1.36 "Person" means a natural person, a corporation, a partnership, a
------ trust, a joint venture, any governmental authority, or any other entity or organization.


1.37 "POS System" means a computer system consisting of hardware
---------- and/or software (including associated APIs) that provides the ability to sell, or account for the sale of, goods or services in a retail environment, including an ATM.


1.38 "Receiving Party" has the meaning set forth in Section 9.1.
---------------


1.39 "Remote Ticketing Services" means the provision of information
------------------------- (including event time listings), electronic ticketing and other commerce services in the Entertainment Segment other than in person (such in person services may include (i) kiosks, so long the sale features offered at the kiosk are no greater than the services offered at the relevant Venue's box office, and (ii) same day purchase of advance concessions) at the Venue of the event.


1.40 "RS API" means RS' application program interface for the RS
------ Entertainment POS System as it existed on the Term Sheet Effective Date.


1.41 "RS Covenant" has the meaning set forth in Section 4.9.
-----------


1.42 "RS Indemnitee" has the meaning set forth in Section 11.2.
-------------


------------------------------ ***
Denotes information that has been omitted from this Exhibit pursuant
to a confidential treatment request filed with the Commission.


4


1.43 "RS Entertainment POS System" means the POS System (including
--------------------------- all versions and configurations thereof) for the Entertainment Segment developed, manufactured, marketed, distributed, sold or leased by or on behalf of RS or its Affiliates, as such POS System exists on the Effective Date.


1.44 "RS POS Systems" means all POS Systems (including all versions
-------------- and configurations thereof) developed, manufactured, marketed, distributed, sold or leased by or on behalf of RS or its Affiliates.


1.45 "Schedule" has the meaning set forth in Section 2.2.
--------


1.46 "Services" means any services to be performed or provided by RS
-------- or its Affiliates pursuant to this Agreement.


1.47 "Statement of Work" has the meaning set forth in Section 3.4.1.
-----------------


1.48 "Term" has the meaning set forth in Section 13.1.
----


1.49 "Term Sheet Effective Date" means August 1, 1999.
-------------------------


1.50 "Venture Sub" has the meaning set forth in Section 5.1.
-----------


1.51 "Venue" means a theater, stadium, performing arts center,
----- concert venue, arena or any other establishment that as an ordinary and regular business activity exhibits or presents motion pictures, plays, concerts, dance, sports or any other live entertainment event.


ARTICLE 2
INITIAL DEVELOPMENT


2.1 Initial Enhanced POS System. RS shall, at its expense, design
--------------------------- and develop a POS System that incorporates into the RS Entertainment POS System substantially the same functionality as is presently available in *** and *** ("Initial Enhanced POS System") in accordance with the Original Specifications. Additionally and concurrently, RS shall, at its expense and in collaboration with MF, design and develop the New API in accordance with the Original Specifications, which shall enable and optimize all the features of *** and the features developed for the ***. The New API shall be seamlessly integrated into the Initial Enhanced POS System. Additionally, RS shall design and develop a software module (the "Module") that will not provide such seamless integration but can be used in connection with the RS Entertainment POS System with minimal effort by its users to enable such users to enjoy the New API as an interface between the RS Entertainment POS System and MF System.


--------------------------- ***
Denotes information that has been omitted from this Exhibit pursuant to a
confidential treatment request filed with the Commission.


5


2.2 Development of Initial Enhanced POS System. RS shall design
------------------------------------------ and develop the Initial Enhanced POS System and New API in accordance with the Statement of Work set forth in Exhibit A attached hereto. The Initial Enhanced POS System, New API and Module shall be designed, developed and delivered to MF in accordance with the schedule set forth in such Statement of Work (the "Schedule"). The Initial Enhanced POS System and New API as designed and developed shall comply with the specifications set forth in such Statement of Work and the performance standards set forth in Exhibit B attached hereto. RS shall provide MF quarterly reports of RS' performance relative to such performance standards, in sufficient detail to allow MF reasonably to monitor such performance. The Initial Enhanced POS System, New API and Module shall be tested in accordance with Section 3.8 and RS agrees that the Initial Enhanced POS System, New API, and Module shall have completed successfully all such testing and be commercially available no later than the date set forth in the Schedule for delivery to MF of the completed and successfully tested Initial Enhanced POS System, New API and Module. RS agrees that all future versions of the Enhanced POS System shall include (i) the features designed and developed as a part of the Initial Enhanced POS System, and (ii) the New API. Additionally, RS agrees to notify MF prior to modifying the New API, and agrees not to modify the New API in a manner that impairs or degrades any functionality then available in the New API.


2.3 RS Responsibility for Development. Notwithstanding AOL's and/or
--------------------------------- MF's participation in developing the Statement of Work and specifications described in this Article 2 and the New API, RS shall be solely responsible for the Services necessary to design and develop the Initial Enhanced POS System and Module in accordance with the Original Specifications, schedules and other requirements of this Agreement and the Statement of Work.


ARTICLE 3
ONGOING DEVELOPMENT, MAINTENANCE AND SUPPORT


3.1 Support and Maintenance. RS shall make available and provide
----------------------- training, support and maintenance for the RS Entertainment POS System and Module or Enhanced POS System to each Customer pursuant to a written agreement between the Customer and RS. RS agrees to make such training, support and maintenance available at commercially reasonable prices and to provide at least the minimum levels of training, support and maintenance set forth in Exhibit C attached hereto.


3.2 Ongoing Development of Enhanced POS System. RS shall throughout
------------------------------------------ the Term add to the Enhanced POS System features useful to or desired by Customers as necessary to acquire Customers in accordance with the Marketing Plan, as agreed from time to time among the Parties pursuant to Section 4.4(a) of this Agreement. Additionally, RS shall cause the Enhanced POS System to conform to the performance standards set forth in Exhibit B. Without limiting the foregoing, the Parties agree that throughout the Term RS shall use commercially reasonable efforts to ensure that the then-current version of the Enhanced POS System contains features that are competitive with the ***. If the Parties are not able to agree on the features of


--------------------------------- ***
Denotes information that has been omitted from this Exhibit pursuant to a
confidential treatment request filed with the Commission.
6


the Enhanced POS System pursuant to Section 4.4(a) of this Agreement and MF reasonably believes that (i) the Enhanced POS System is no longer competitive with *** and (ii) RS has not made adequate plans to correct such lack of competitiveness, and MF so notifies RS in writing, RS shall enhance the existing features of, or develop new features for, the Enhanced POS System so as to make the Enhanced POS System competitive within the earliest commercially reasonable period of time, which period of time shall in no event shall exceed *** from the day MF so notifies RS in writing. If the Enhanced POS System is not competitive as required by this Section 3.2 within the *** time period set forth in the preceding sentence, or if RS fails to provide to MF and AOL the prices for the Enhanced POS System set forth in Exhibit D, then MF and AOL thereafter shall be excused from all of their obligations set forth in Article 4 (except Section 4.4(b)).


3.3 MF Requested Development. MF may, from time to time,
------------------------ request that RS design and develop additional or enhanced features for the Enhanced POS System, including modifications or enhancements to the New API (the "MF Features") that are in addition to the features that RS is obligated to provide pursuant to Sections 2.1, 2.2, 3.1 and 3.2. If so, RS and MF shall prepare and agree upon a Statement of Work pursuant to Section 3.4.1 for the development of such features. MF shall pay to RS for the Services performed to design and develop the MF Features the lower of (i) cost plus *** percent (***%) or (ii) ***, in accordance with Article 6.


3.4 Services.
--------


3.4.1 Statements of Work. When required by this Agreement, RS
------------------ and MF shall prepare, negotiate and agree upon a "Statement of Work." At a minimum a Statement of Work shall include: (i) a description of and detailed specifications for all Deliverables that are to be designed and developed under the Statement of Work; (ii) a detailed schedule setting forth the time period within which RS shall design, develop and deliver such Deliverables to MF, including development milestones against which RS' performance and timeliness may be measured; (iii) if appropriate, any acceptance criteria that will be used to judge the conformance of such Deliverables to their specifications; (iv) if appropriate, a not-to-exceed budget within which RS shall design, develop and deliver such Deliverables; and (v) the rates, as governed by Section 6.1.1, MF may be billed for the Services required to design and develop such Deliverables.


3.4.2 Provision of Services. Upon the execution of a Statement
--------------------- of Work (and upon execution of this Agreement in the case of the Statement of Work attached hereto as Exhibit A), RS shall provide the Services specified in the Statement of Work, in accordance with directions provided by MF, through employees having a skill level appropriate for providing such Services. RS shall use its best efforts to provide Services in as efficient a manner as reasonably possible. RS represents and warrants that any independent contractor who provides Services has executed an agreement providing protection for MF's and AOL's Confidential


---------------------------------- ***
Denotes information that has been omitted from this Exhibit pursuant to a
confidential treatment request filed with the Commission.


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Information substantially similar to the protection afforded by Article 9 and has agreed in writing to assign all right, title and interest it may possess in and to any Deliverables to MF or RS, as appropriate.


3.5 Changes. MF may from time to time request changes to a Statement of
------- Work, including the specifications, schedules, Deliverables and acceptance criteria therein. Upon such a request, RS shall evaluate the impact of the proposed change on the Statement of Work and, no later than ten business days after receipt of such proposed change, shall prepare and deliver a written estimate of the effect such proposed change has upon the Statement of Work. RS shall use reasonable efforts to accommodate proposed changes within the existing schedule and shall not unreasonably refuse to perform proposed changes. If MF accepts the written estimate prepared by RS then the Statement of Work shall be amended accordingly and all Services thereafter shall be in accordance with the Statement of Work as so amended.


3.6 Delivery.
--------


3.6.1 Deliverables. RS shall deliver to MF all Deliverables to be
------------ delivered pursuant to each Statement of Work, including the Initial Enhanced POS System (together with the New API) and the MF Features, on or before the delivery date set forth in the applicable Statement of Work for such Deliverables. All such Deliverables shall be delivered in the format agreed by MF and RS. For all computer software RS shall provide the applicable executable code and, unless otherwise requested by AOL and MF, provide such internally prepared documentation concerning such software as is reasonably necessary to enable AOL and MF personnel to operate such software.


3.6.2 Enhanced POS System. RS shall deliver to MF all versions of
------------------- the Enhanced POS System and any new releases and updates or of the foregoing, at least *** business days prior to any release or delivery to Customers or any other third party. MF may test such Enhanced POS System, and RS promptly shall correct any errors and nonconformities brought to its attention by MF.


3.6.3 New API. RS shall deliver to MF the New API and any
------- modifications to the New API, which shall be compatible with the New API and embody the New API, in a format agreed by MF and RS at least *** business days prior to any release or delivery of any software or hardware that utilizes such changes or revisions to any third party. MF may test such New API and any such revisions or changes, and RS shall promptly correct any errors and nonconformities brought to its attention by MF.


3.6.4 Module. RS shall deliver to MF the Module in a format agreed
------ by MF and RS on or before the date set forth in the Schedule for such delivery. MF may test the Module, and RS shall promptly correct any errors and nonconformities brought to its attention by MF.


----------------------------- ***
Denotes information that has been omitted from this Exhibit pursuant to a
confidential treatment request filed with the Commission.


8


3.7 Acceptance Testing. All Deliverables delivered by RS to MF shall be
------------------ subject to acceptance or rejection by MF based on the requirements of this Agreement and the applicable Statement of Work, including any acceptance criteria set forth therein. Unless otherwise specified in a Statement of Work, MF shall have 30 days after receipt of Deliverables to test and accept such Deliverables or to reject such Deliverables as nonconforming by written notice identifying the reason(s) for nonconformance. If MF rejects Deliverables as nonconforming, RS shall at its expense correct such nonconformity and redeliver such Deliverables to MF and MF shall again have the number of days set forth above or in the Statement of Work to test and accept or reject the redelivered Deliverables. This Section 3.7 shall not limit RS's ability to distribute Deliverables after the ten day period set forth in Section 3.6.


3.8 Training, Support and Maintenance of Mars and Mars Sequel. MF may
--------------------------------------------------------- from time to time elect to have RS provide some or all installation, training, support and maintenance for the Mars POS System and Mars Sequel POS System. RS shall perform the installation, training, support and maintenance pursuant to contracts between MF and Customer (and shall receive ***% of the payments received by MF under such contracts for installation, training, support and maintenance as complete and total satisfaction for such performance), unless MF elects to have RS enter into contracts directly with some or all relevant Customers. In either event, RS shall perform such installation, training, support and maintenance in compliance with any relevant obligations set forth in such contracts. RS only shall be obligated to perform installation, training, support and maintenance under contracts for a term greater than one (1) year that provide for payments by Customer that are at least equal to RS' standard non-discounted maintenance fees for comparable services with respect to a comparable RS POS System or Enhanced POS System and for which AO ...