EXHIBIT 10.2
Amendment to PCA Shell License Agreement
This amendment (the "Amendment") to the PCA Shell License
Agreement dated August 23, 2000, is itself dated January ___, 2002 (the
"Amendment Effective Date") and is by and between Merrill, Lynch, Xxxxxx, Xxxxxx
& Xxxxx Incorporated, a Delaware corporation having an office at 4 World
Financial Center, New York, New York 10080 ("Xxxxxxx Xxxxx"), Xxxxx 0 Systems,
Inc., a Delaware Corporation having an office at 0000 Xxxxxxx Xxxxxxx, Xxxx,
Xxxxx Xxxxxxxx 00000 ("Level 8") and Cicero Technologies, Inc. ("Cicero") a
Delaware corporation having an office at 0000 Xxxxx Xxxxxx, Xxxxxxxx, XX 00000.
W I T N E S S E T H
WHEREAS, Xxxxxxx Xxxxx and Level 8 entered into a PCA Shell
License Agreement on August 23, 2000;
WHEREAS, Xxxxxxx Xxxxx and Level 8 are entering into a
Purchase Agreement as of the Amendment Effective Date relating to their overall
relationship; and
WHEREAS, in connection with that Purchase Agreement, Xxxxxxx
Xxxxx, Level 8 and Cicero wish to amend the PCA Shell License Agreement as
further described herein;
NOW, THEREFORE, in consideration of the premises and mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, it
is agreed as follows:
ARTICLE I - DEFINITIONS
When used in this Amendment, the capitalized terms listed in
this Article I shall have the following meanings, and capitalized terms that are
not otherwise defined shall have the meaning specified in the PCA Shell License
Agreement (as defined below):
1.1 "Agreement" shall mean the PCA Shell License Agreement as amended by
this Amendment.
1.2 "Approved Person" shall mean any person whose name appears on Schedule
1.2 hereto; provided, however, that at the written request of Xxxxx 0, Xxxxxxx
Xxxxx may elect to add persons to Schedule 1.2 in its sole discretion.
1.3 "Change of Control" shall mean the occurrence of any of the following
during the first five years from the date hereof: (1) the sale, lease, transfer,
conveyance or other disposition, or by way of merger or consolidation, in one or
a series of related transactions, of all or substantially all of the assets of
Level 8, its subsidiaries, or its or their successors or assignees taken as a
whole to any "person" -- as such term is
used in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended,
other than an Approved Person; (2) the adoption of a plan relating to the
liquidation or dissolution of Xxxxx 0, its subsidiaries, or its or their
successors or assignees; (3) the consummation of any transaction, including,
without limitation, any merger or consolidation, the result of which is that any
"person," as defined above, other than an Approved Person, becomes the
beneficial owner, directly or indirectly, of more than 50% of the voting stock
of Xxxxx 0, its subsidiaries, or its or their successors or assignees; or (4)
the first day on which a majority of the members of the Board of Directors of
Xxxxx 0, its subsidiaries, or its or their successors or assignees are not
Continuing Directors.
1.4 "Continuing Directors" shall mean, as of any date of determination,
any member of the Board of Directors of Xxxxx 0, its subsidiaries, or its or
their successors or assignees who: (1) was a member of such Board of Directors
on the date of this Agreement; (2) was nominated for election or elected to such
Board of Directors with the approval of a majority of the Continuing Directors
who were members of such Board at the time of such nomination or election; or
(3) was nominated for election or elected to such Board of Directors with the
approval of an Approved Person in connection with (i) the sale, lease, transfer,
conveyance or other disposition, or by way of merger or consolidation, in one or
a series of related transactions, of all or substantially all of the assets of
Level 8, its subsidiaries, or its or their successors or assignees, taken as a
whole, to such Approved Person, or (ii) the consummation of any transaction,
including, without limitation, any merger or consolidation, the result of which
is that such Approved Person becomes the beneficial owner, directly or
indirectly, of more than 50% of the voting stock of Xxxxx 0, its subsidiaries,
or its or their successors or assignees. For purposes of this section, Xxxxxxx
Xxxxx'x Board representative shall be considered a Continuing Director,
regardless of the identity of the specific individual representing Xxxxxxx Xxxxx
on the Level 8 Board of Directors.
1.5 "Licensed Products" shall mean products incorporating or utilizing
the PCA Shell (or any component thereof) or the Distributed Computing Substrate
(or any component thereof) or covered by one or more claims of the Patent.
1.6 "Maintenance Services" as said term is used in Section 2.9 shall
mean the correction of any failure of the Licensed Product(s) to operate in
accordance with the applicable Documentation, specifications and warranties and
the provision of all revisions, updates, modifications, improvements,
corrections, releases, versions, fixes and enhancements to Licensed Products
("Updates") as soon as such Updates have been made generally available. All
other references to "Maintenance Services" in this Agreement shall mean those
services set forth in Article 2A hereof.
1.7 "PCA Shell License Agreement" shall mean that certain PCA Shell
License Agreement dated August 23, 2000 between Xxxxxxx Xxxxx and Level 8.
1.8 "Source Code Delivery Dates" shall mean the anniversary and
semi-anniversary of the Amendment Effective Date in each calendar year during
the term of the PCA Shell License Agreement as amended; provided that there has
been a new
2
maintenance release, new version or new release of the LicensedProducts since
the last Source Code Delivery Date.
1.9 The "Sales Price" of any particular Licensed Product or any
Maintenance Services shall mean the net price charged for the Licensed Products
or Maintenance Services less taxes, withholding, shipping, handling, returns and
insurance.
ARTICLE II - DISCLOSURE
2.1 The following shall be incorporated into the PCA Shell Agreement
after Section 2.2 (b) thereof:
"Without limiting the provisions of this Section 2.2 (b), within ten
(10) days of the Amendment Effective Date, Level 8 shall deliver to Xxxxxxx
Xxxxx a package containing any and all Technology discovered or developed by it
solely, or jointly with Xxxxxxx Xxxxx, any Updates made by Xxxxx 0 to the PCA
Shell, and all source code relating to such Technology. On the Source Code
Delivery Dates, Level 8 shall deliver to Xxxxxxx Xxxxx a package containing any
and all new generally available maintenance releases, new generally available
versions or new generally available releases and Updates of the Technology
discovered or developed by it solely, or jointly with Xxxxxxx Xxxxx, any Updates
made by Level 8 to the PCA Shell that has been released in a generally available
product, and all source code relating to such Technology, and Updates, except
such packages may exclude materials provided on previous Source Code Delivery
Dates. Notwithstanding this Section 2.2(b), Xxxxx 0 may withhold from disclosure
Technology, and Updates otherwise subject to disclosure if such disclosure would
violate a confidentiality agreement with a third party."
ARTICLE III - LICENSE
3.1 Section 2.3 (a) and (c) of the PCA Shell License Agreement are
amended to read as follows:
"(a) a license to copy, display, use, modify and reproduce the PCA
Shell, including any Updates thereto developed during the term of the Agreement
that Xxxxxxx Xxxxx, in its sole discretion, provides to Xxxxx 0, to distribute
the PCA Shell and any Updates made thereto in source code form (subject to the
provisions of Section 2.9 hereof) and object code form to channel partners and
end users pursuant to license agreements containing terms which are adequate to
protect the rights of Xxxxxxx Xxxxx in the PCA Shell;" and
"(c) a nonexclusive license to copy, display, use, modify and reproduce
the Distributed Computing Substrate, including any Updates made thereto
developed during the term of this Agreement that Xxxxxxx Xxxxx, in its sole
discretion, provides to Xxxxx 0, to distribute the Distributed Computing
Substrate in object code form and source code form (subject to the provisions of
Section 2.9 hereof), to channel partners and end users
3
pursuant to license agreements containing terms which are adequate to protect
the rights of Xxxxxxx Xxxxx in the Distributed Computing Substrate."
3.2 Section 2.4 of the PCA Shell License Agreement is amended to read
as follows:
"2.4. Xxxxx 0 License to Xxxxxxx Xxxxx. Level 8 hereby grants to
Xxxxxxx Xxxxx, and Xxxxxxx Xxxxx, hereby accepts, a royalty-free, perpetual,
worldwide license to copy, display, use, modify and reproduce any Technology
developed by Xxxxx 0 and any Updates made by Level 8 to the PCA Shell that are
incorporated in a generally available Licensed Product, including any Updates
thereto developed during the term of this Agreement, that are incorporated in a
generally available product for any and all business uses of Xxxxxxx Xxxxx and
its Affiliates and subsidiaries."
3.3 The following shall be added as Section 2.9 of the PCA Shell
License Agreement:
"2.9 Escrow. Level 8 may deposit the source code relating to the PCA
Shell and Distributed Computing Substrate in a source code escrow account for
the benefit of channel partners and end users pursuant to the terms of a source
code escrow agreement ("Level 8 Source Code Escrow Agreement"). The Level 8
Source Code Escrow Agreement shall state that in the event that Level 8 becomes
insolvent, makes a general assignment for the benefit of creditors, files a
voluntary petition of bankruptcy, suffers or permits the appointment of a
receiver for its business or assets, becomes subject to any proceeding under any
bankruptcy or insolvency law, whether domestic or foreign, or has wound up or
liquidated its business voluntarily or otherwise, prior to the release of source
code to an end user and/or reseller, the following procedure shall occur:
a. Level 8 will provide Xxxxxxx Xxxxx with a list of all end
users and resellers who have source code escrow rights;
x. Xxxxxxx Xxxxx will decide whether or not they want to assume
Level 8's obligation to provide Maintenance Services to each of its end users
and resellers;
c. In the event that Xxxxxxx Xxxxx determines that it will
assume Level 8's obligation to provide Maintenance Services to each of Level 8's
end users and/or resellers, and
(i) said end users and/or resellers accept Xxxxxxx Xxxxx as the
provider of said Maintenance Services, Level 8 shall assign its
4
Maintenance Service obligations to Xxxxxxx Xxxxx, in lieu of having the source
code released directly to the end users and resellers (and Xxxxxxx Xxxxx shall
not be liable for any set-offs or claims which said end users and/or resellers
may assert against Level 8), or
(ii) said end users and/or resellers reject Xxxxxxx Xxxxx as the
provider of said Maintenance Services, the end users and resellers shall each
pay Xxxxxxx Xxxxx a one time, lump sum payment of One Million Dollars
($1,000,000) to secure the release of the source code under the terms of the
Level 8 Source Code Escrow Agreement; and
d. In the event that Xxxxxxx Xxxxx decides not to assume Level
8's obligation to provide Maintenance Services to its end users or resellers,
then the source code will be delivered to said end users and resellers based on
the terms of the Level 8 Source Code Escrow Agreement."
ARTICLE IV - EXCLUSIVITY
4.1 Section 2.5 of the PCA Shell License Agreement is amended to read
as follows:
"2.5 Exclusivity Period. The foregoing licenses with respect
to the PCA Shell, and the Patent granted by Xxxxxxx Xxxxx
shall be exclusive in perpetuity, subject to Section 2.7
(Xxxxxxx Xxxxx'x Reservation of Rights) and Section 10.4.1
(Event Triggering Reversion to Non-Exclusive License) hereof.
Notwithstanding the foregoing, Xxxxxxx Xxxxx shall have the
rights: (i) to continue development of the PCA Shell Software
independently of Level 8's development efforts after the
Effective Date; (ii) to copy, display, use, modify and
reproduce the modifications and improvements that Xxxxxxx
Xxxxx independently develops; and (iii) subject to the
exclusivity with respect to the PCA Shell and the Patent
granted pursuant to this Section 2.5, to distribute such
modifications and improvements to the public; provided that
Level 8 is notified of such modifications and improvements."
4.2 Section 2.7 of the PCA Shell License Agreement is hereby amended to
read as follows:
"2.7 Reservation of Rights. Notwithstanding any provision to
the contrary, Xxxxxxx Xxxxx hereby reserves the right (i) to
copy, display, modify, reproduce and use the PCA Shell for its
own business use and for the internal business use of its
Affiliates and subsidiaries, and (ii) to make, have made, and
use products incorporating inventions claimed in the Patent,
for its own business use and for the internal business use of
its Affiliates and subsidiaries. This right specifically
includes (i) providing
5
the PCA Shell to a third party service provider for
reproduction, display, use, modification and reproduction in
connection with services it is providing to Xxxxxxx Xxxxx and
other parties using Xxxxxxx Xxxxx trading, settlement
services, or other services provided by a Xxxxxxx Xxxxx
business unit, and (ii) granting such third-party service
provider (a) the right to provide services incorporating
inventions covered by the Patent to Xxxxxxx Xxxxx and other
parties using Xxxxxxx Xxxxx trading, settlement services, or
other services provided by a Xxxxxxx Xxxxx business unit, and
(b) the right to make and use products incorporating
inventions covered by the Patent in connection with services
it is providing to Xxxxxxx Xxxxx and other parties using
Xxxxxxx Xxxxx trading, settlement services, or other services
provided by a Xxxxxxx Xxxxx business unit. Neither such
third-party service provider nor any other party shall be
granted rights to use the PCA Shell or products or services
incorporating inventions covered by the Patent for their own
commercial benefit."
ARTICLE V - MAINTENANCE SERVICES
5.1 The following shall be incorporated into the PCA Shell Agreement as
"ARTICLE 2A - MAINTENANCE SERVICES":
"ARTICLE 2 (A) - MAINTENANCE SERVICES
2A.1 Within ninety (90) days following the execution of this Agreement,
Xxxxxxx Xxxxx shall have the right to purchase the following maintenance
services for the Licensed Products ("Maintenance Services") for a fee of One
Hundred Forty-four and 00/00 Dollars ($144.00) per seat for no less than 3000
seats and for up to 5000 seats. Payment for the Maintenance Services will be
payable in two equal installments and then on a recurring, annual basis. The
first installment payment shall be invoiced upon execution of a purchase order
by Xxxxxxx Xxxxx for the Maintenance Services and the second installment payment
shall be invoiced in the following quarter, and thereafter on each anniversary
of the purchase order, Level 8 shall invoice the total amount due for renewal of
support for the then number of seats contracted. All payments will be due within
thirty (30) days of Xxxxxxx Xxxxx'x receipt of an invoice. No fee will be due
for any seats in excess of 5000. For purposes of the initial installation of the
Licensed Product at Xxxxxxx Xxxxx, Level 8 agrees to provide up to 30 person
days of Professional Services to facilitate the adaptation of the Licensed
Product to Xxxxxxx Xxxxx at no cost. In the event that Xxxxxxx Xxxxx requires
additional consultation services at any time after the initial installation of
the Licensed Product, the parties hereto agree that Level 8 shall offer said
consultation services to Xxxxxxx Xxxxx at no more than it's then current
published rate, discounted at 20%.
2A.1.1 Level 8 shall correct any failure of the Licensed Products to
operate in accordance with the applicable Documentation, specifications and
warranties.
6
2A.1.2 Level 8 shall provide to Xxxxxxx Xxxxx all revisions, updates,
modifications, improvements, corrections, releases, versions and enhancements
(the "Updates") to the Licensed Products as soon as such Updates have been made
generally available. Such Updates shall not degrade the performance, functioning
or operation of the Licensed Products provided hereunder. If any such Updates
are acceptable to Xxxxxxx Xxxxx, Level 8 agrees to give Xxxxxxx Xxxxx all
necessary assistance to install same, at no cost to Xxxxxxx Xxxxx, excepting the
initial installation of Licensed Product, which shall be governed by the terms
of section 2A.1. If any such Update is not acceptable to Xxxxxxx Xxxxx, Xxxxxxx
Xxxxx may refuse to accept same, and, in such event, Xxxxx 0 agrees to maintain
the Licensed Products in the form in effect on the date Level 8 requested
Xxxxxxx Xxxxx to accept any such Update. For purposes of this Agreement, an
Update once incorporated into any Licensed Product hereunder shall be considered
a "Licensed Product" for all purposes hereunder.
2A.1.3 Level 8 shall provide remote technical assistance and
consultation to Customer through its Level 8 Support Team telephone support
services on a 7x24 availability basis. Xxxxxxx Xxxxx may submit error reports by
telephone or electronically. Xxxxx 0 will supply telephone numbers and e-mail
addresses. Xxxxxxx Xxxxx may also request electronic status reports on reported
errors by telephone, fax or e-mail. The Level 8 Support Team representatives
will record all error reports and coordinate all responses in the following
manner:
For all reported errors, Level 8 will assign a Call Tracking Number. Calls will
be returned according to the Severity Levels indicated in Tables I - III below.
Xxxxx 0 and Xxxxxxx Xxxxx will cooperate in efforts to resolve reported errors.
Xxxxx 0 may request that the Xxxxxxx Xxxxx duplicate the error, instruct Xxxxx 0
how to duplicate the error, or provide problem log dumps, diagnostic tests or
other investigative support. Xxxxxxx Xxxxx will provide all reasonably requested
information to assist in arriving at a problem solution.
Level 8 may provide repairs by furnishing Maintenance Releases (MNT's) or
Corrective Service Disks (CSD's) for Xxxxxxx Xxxxx installation. Table I:
Severity Level Definitions:
Severity Level Definition
-------------------- -------------------------------------------------------
Severity Xxxxx 0 All environments. A critical condition affecting
Xxxxxxx Xxxxx'x production environment with no
acceptable workaround. Requires constant dedicated
Xxxxxxx Xxxxx and Level 8 resources.
-------------------- -------------------------------------------------------
Severity Xxxxx 0 All environments. A severe restriction, but not a
complete obstacle, to Xxxxxxx Xxxxx'x ability to use
the Licensed Products. No acceptable workaround.
Level 8 may request Xxxxxxx Xxxxx resources as
necessary.
-------------------- -------------------------------------------------------
Severity Xxxxx 0 All environments. A limitation on Xxxxxxx Xxxxx'x use
of the Licensed Products, but an acceptable workaround
exists.
-------------------- -------------------------------------------------------
Table II: Response Times
7
------------ ------------------ ---------------- ------------ -----------------
Severity Initial Response Temporary Schedule Permanent
Level Resolution Date Resolution
------------ ------------------ ---------------- ------------ -----------------
1 1 hour 1 day ASAP Emergency fix
------------ ------------------ ---------------- ------------ -----------------
2 1 day 7 days 30 days CSD
------------ ------------------ ---------------- ------------ -----------------
3 2 days 30 days 60 days MNT
------------ ------------------ ---------------- ------------ -----------------
- Initial Response: The time to return a call to begin error investigation.
- Temporary Resolution: The offer of a temporary fix or workaround, if
available, for acceptance by Xxxxxxx Xxxxx.
- Scheduling Date: The date on which Level 8 will schedule the availability
date of a permanent fix.
- Permanent Resolution: The mechanism for providing the final fix.
2A.2 Level 8 shall correct any malfunction, defect or nonconformity in
each Licensed Product provided hereunder following telephonic notification by
Xxxxxxx Xxxxx to Level 8 of any such malfunction, defect or nonconformity which
prevents the Licensed Product from performing in accordance with the
documentation provided hereunder and such other warranties, descriptions and
specifications. If in the determination of Xxxxxxx Xxxxx, any malfunctions,
defect or nonconformity cannot be satisfactorily corrected through such
telephone communication, Level 8 agrees to respond by having at least one (1)
maintenance person trained in the Licensed Products at the Xxxxxxx Xxxxx'x site
within twenty-four (24) hours of Xxxxxxx Xxxxx'x initial request. If such
problem is the result of Xxxxxxx Xxxxx'x misuse of the Licensed Product or
unrelated to the Licensed Product, Xxxxxxx Xxxxx shall reimburse Level 8 at
Level 8's then current published standard rates for such services.
2A.3 Level 8 will repair any damage caused by its employees, agents, or
contractors while performing the Maintenance Services and Level 8 will hold
Xxxxxxx Xxxxx harmless from any and all claims, losses, or expenses (including
reasonable attorneys' fees) arising from such Maintenance Services.
2A.4 Level 8 warrants that all Maintenance Services provided by Xxxxx 0
under this Agreement will be performed in a professional manner by qualified
personnel.
ARTICLE VI - ROYALTY PAYMENTS
6.1 The following shall be incorporated into the PCA Shell Agreement as
"ARTICLE 2B - ROYALTIES":
"ARTICLE 2B - ROYALTIES
2B.1. Within forty-five (45) days following the end of each calendar
quarter, Xxxxx 0, its successors or assignees will pay Xxxxxxx Xxxxx royalties
equal to three percent (3%) of the Sales Price for each Licensed Product or
Maintenance Services that Xxxxx 0, its successors or assignees sold, licensed or
otherwise transferred within such calendar quarter. Such payment shall be made
in United States Dollars and sent by wire
8
transfer to the bank and account number that will be provided to Xxxxx 0, its
successors or assignees by Xxxxxxx Xxxxx. Late payments will bear interest as
set forth in Section 2B.3 of this Agreement. In no event shall Level 8 be
obligated to make royalty payments in excess of twenty million dollars
($20,000,000).
2B.2. Reports. Within forty-five (45) days following the end of each
calendar quarter, Level 8 will send to Xxxxxxx Xxxxx a complete and accurate
report (a "Royalty Report"), certified by Level 8's Chief Financial Officer or
Comptroller, detailing the number, type and Sales Price of all Licensed Products
or Services sold, licensed, or otherwise transferred during the preceding
calendar quarter, and a calculation of the royalties due thereon, and containing
such other information as Xxxxxxx Xxxxx may reasonably request. If no royalties
are due, then that fact will be shown on such statement. Level 8 will retain for
at least five years from the date on which a royalty is due all records
reasonably required for the verification of the correctness of royalties
hereunder.
2B.3. Audit. Xxxxxxx Xxxxx may, at its own expense and with ten (10)
days advance notice to Xxxxx 0, use an independent outside auditor to audit the
accuracy of Level 8's royalty payments hereunder. If any such examination
discloses that Level 8 has not paid the full amount of the royalties or other
payments that it is required to pay hereunder, Level 8 will pay the amount of
any shortfall plus accrued interest thereon from the date that such amounts
became due through the date of payment, at a rate that is the lesser of one and
one-half percent (1 1/2%) per month and the maximum rate allowed by law.
Notwithstanding the foregoing, such specified rate of interest will not excuse
or be construed as a waiver of Level 8's obligation to timely provide any
payments owed to Xxxxxxx Xxxxx. If such examination reveals an underpayment of
five percent (5%) or more with respect to the period that is the subject of such
examination, Level 8 will pay or reimburse Xxxxxxx Xxxxx for the reasonable
auditing expenses incurred in connection with such examination. Such independent
auditor will maintain as confidential all information obtained in connection
with any such examination, in accordance with such auditor's legal and
professional obligations; provided that such auditor may: (i) provide to Xxxxxxx
Xxxxx a report on amounts due to Xxxxxxx Xxxxx and the basis for determination
thereof in accordance with the ordinary professional standards applicable to
such auditor; and (ii) use the results of such examination as reasonably
necessary to assist Xxxxxxx Xxxxx in making and/or pursuing any claims regarding
such amounts or the payment thereof.
2B.4. Taxes. The amounts payable hereunder do not include any sales,
use, excise, value-added or similar taxes that may be imposed as a result of the
existence or operation of this Agreement. Level 8 will pay when due any
applicable federal, state, municipal or other governmental taxes, duties, excise
taxes, tariffs or other taxes imposed on payments hereunder."
ARTICLE VII - LIMITATION OF LIABILITY
7.1 The following provision supersedes the last sentence of Section 4.2
(a) of the PCA Shell License Agreement:
9
"EXCEPT WITH RESPECT TO EACH PARTY'S OBLIGATIONS UNDER ARTICLE
3 OF THE PCA SHELL LICENSE AGREEMENT AND EXCEPT FOR XXXXXXX
XXXXX'X INDEMNIFICATION OBLIGATIONS UNDER SECTION 8.1, IN NO
EVENT SHALL EITHER PARTY'S LIABILITY TO THE OTHER PARTY
RELATING TO THE PCA SHELL LICENSE AGREEMENT AS AMENDED HEREBY,
WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE),
INDEMNITY, PRODUCT LIABILITY OR OTHERWISE, INCLUDING WITHOUT
LIMITATION ANY LIABILITY FOR DIRECT DAMAGES EXCEED FIVE
MILLION DOLLARS ($5,000,000)."
ARTICLE VIII - TERMINATION
8.1 The following provision shall be added as Section 5.2 of the PCA
Shell License Agreement:
"5.2 Termination by Xxxxxxx Xxxxx. Xxxxxxx Xxxxx may terminate
this Agreement, effective immediately upon receipt by Xxxxx 0
of notice of termination in the event that: (i) Level 8
becomes insolvent, makes a general assignment for the benefit
of creditors, files a voluntary petition of bankruptcy,
suffers or permits the appointment of a receiver for its
business or assets, becomes subject to any proceeding under
bankruptcy or insolvency law, whether domestic or foreign, or
has wound up or liquidated its business voluntarily or
otherwise; (ii) there is a Change of Control; or (iii) Xxxxx 0
notifies Xxxxxxx Xxxxx of any pending merger or acquisition to
which it is a party."
8.2 Level 8 shall notify Xxxxxxx Xxxxx in writing of all pending
mergers or acquisitions to which it is a party within ten (10) days of the
effective date thereof.
ARTICLE IX - MISCELLANEOUS
9.1 Section 10.4 of the PCA Shell License Agreement is amended to read
as follows:
"10.4 Assignability. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by Level 8 without Xxxxxxx Xxxxx'x prior written approval.
Any assignment or transfer of any right, remedy, obligation or
liability under this Agreement without such consent shall be null and
void. A Change of Control shall be deemed to constitute an assignment
for which written approval is required under this section 10.4.
9.2 The following shall be added as Section 10.13 of the PCA Shell
License Agreement:
10
"10.13 Assignment. Xxxxx 0 hereby assigns all of its rights and
obligations under the Agreement to Cicero and Cicero hereby accepts the
assignment. Xxxxxxx Xxxxx hereby grants its consent solely to the
assignment from Level 8 to Cicero, so long as Level 8 shall remain
liable under the terms of this Agreement. This provision shall not be
deemed to be a consent by Xxxxxxx Xxxxx to any further assignments of
this Agreement by Cicero or any other successor or assignee of Level 8.
All proposed further assignments shall be subject to the provisions of
Section 10.4 above."
ARTICLE X - GENERAL
10.1 This Amendment is an integral part of the PCA Shell License
Agreement and the term of this Amendment shall be coterminous with that of the
PCA Shell License Agreement. In the event of any termination of the PCA Shell
License Agreement, this Amendment shall automatically terminate.
10.2 The provisions of Article 10 of the PCA Shell License Agreement
are hereby incorporated by reference as though set forth herein in full (except
that Section 10.3 shall also apply to this Amendment and that Section 10.4 is
amended as provided herein).
11
IN WITNESS WHEREOF, Xxxxxxx Xxxxx, Level 8 and Cicero have
executed this Amendment as of the day and year first above written.
LEVEL 8 SYSTEMS, INC.
By:
-----------------------------------
Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By:
-----------------------------------
Name:
Title:
CICERO TECHNOLOGIES, INC.
By:
-----------------------------------
Name:
Title:
12
SCHEDULE 1.2
APPROVED PERSONS
IBM
BEA Systems
Microsoft
Oracle
Cisco
Genesys
Siebel
HP
Amdocs
SOPRA
Liraz
13
