EXHIBIT 10.4.10
AMENDMENT NO. 10 TO NETOBJECTS LICENSE AGREEMENT
THIS AMENDMENT NO. 10 TO NETOBJECTS LICENSE AGREEMENT ("Amendment"),
dated as of February 4, 1999, by and between International Business Machines
Corporation ("IBM"), and NetObjects, Inc. (the "NetObjects") further amends
the NetObjects License Agreement dated as of March 18, 1997, as amended to
date ("Agreement").
WHEREAS, Exhibit C to the Agreement, the IBM Source Code Custody
Agreement ("SCCA") (sometimes referred to as the Source Code Escrow
Agreement), including its attachments, provides for the escrow of source code
and other materials relating to NetObjects products; and
WHEREAS, NetObjects and IBM desire to amend the Agreement and SCCA with
respect to IBM's rights to use escrowed materials of NetObjects products upon
their release from escrow under the terms of the SCCA.
NOW, THEREFORE, in consideration of the mutual covenants and Agreements
contained herein, the parties hereto hereby agree as follows:
1. Capitalized terms not otherwise defined herein shall have the same
as meaning as provided by the Agreement or the SCCA, as the case may be.
2. The following amendments are made effective as of the closing date
of the Initial Public Offering of the common stock of NetObjects as such term
is defined in the Restated Certificate of Incorporation of NetObjects:
a. Section 4.2 of the Agreement is deleted in its entirety and
the following is substituted herefor:
4.2. NETOBJECTS hereby grants IBM a nonexclusive, worldwide,
irrevocable license during the Term to use, execute, reproduce and
have reproduced, and to prepare and have prepared Derivative Works
of the Licensed Works and Tools in Source Code form for use in
connection with the purposes and subject to the Release Events set
forth in Exhibit C, the Escrow Agreement; PROVIDED, HOWEVER, THAT
IF THE SPECIFIED RELEASE EVENT IS FAILURE TO PROVIDE MAINTENANCE
AND SUPPORT AS PROVIDED IN SECTION 1.11(e) ANY SUCH DERIVATIVE
WORK MAY BE PREPARED ONLY FOR THE PURPOSE OF EFFECTING ERROR
CORRECTIONS, MAINTENANCE, REPAIR, SUPPORT AND CREATING APPLICATION
PROTOCOL INTERFACES FOR ANY LICENSED WORKS DELIVERED TO IBM PRIOR
TO THE DATE OF THE SUCH RELEASE EVENT. The rights and
licenses granted by NETOBJECTS to IBM under this Section 4.2
include the right of IBM to authorize or sublicense its
Subsidiaries and subcontractors to exercise any of the rights
granted to IBM hereunder.
b. Section 1.11(c) of the SCCA, is hereby amended toread as
follows: "NetObjects is unable to pay its debts as they become due."
c. Section 1.11(f) of the SCCA, which provides for a Release
Event if NetObjects fails to comply with its obligation to improve and
enhance FUSION, is deleted in its entirety.
d. The SCCA shall be, and hereby is, amended effective as of
this date to delete the present Section 4.3(b) in its entirety and
substitute therefor the following:
4.3 IBM will:
---
(b) own any Derivative Works of Escrowed Works which IBM
creates IN ACCORDANCE WITH SECTION 4.2 OF THE AGREEMENT, subject to
NetObjects' rights in the underlying work;
3. This Amendment contains the entire Agreement between the parties
hereto with respect to the subject matter of this Amendment. The terms of
this Amendment shall be binding on and shall inure to the benefit of each of
the parties hereto and their respective successors and assigns.
4. This Amendment may be executed in any number of counterparts and
by the exchange of facsimile signatures, each of which shall be deemed to be
an original and all of which together shall be deemed to be a single
instrument.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective duly authorized representatives as of the date
first written above.
INTERNATIONAL BUSINESS NETOBJECTS, INC.
MACHINES CORPORATION
By: /s/ X.X. Xxxxxxxx By: /s/ Xxxxx Xxxxx
-------------------------------- --------------------------------
Its: Vice President & Assistant Its: CEO
General Counsel
------------------------------- -------------------------------
2
