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Exhibit 10.22
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT NO. 1 TO
LICENSE AND AMENDMENT TO OEM AGREEMENT
AMENDMENT NO. 1 TO SOURCE CODE LICENSE AND AMENDMENT TO AGREEMENT
(this "Amendment") between CDP Communications Inc., a corporation incorporated
under the laws of the Province of Ontario ("CDP") and Mobius Management Systems,
Inc., a corporation incorporated under the laws of the State of Delaware
("Mobius").
WHEREAS:
(a) CDP and Mobius entered into an OEM Agreement dated as of October
15, 1993, as amended on July 18, 1995, pursuant to which (the OEM "Agreement")
granted Mobius certain rights to the object code of CDP's * .
(b) On August 12, 1997, CDP and Mobius entered into a Source Code
License Amendment to OEM Agreement (the "Agreement") pursuant to which, among
other things, the OEM Agreement was amended and CDP granted Mobius certain
rights with respect to the CDP Source Code (as such term and any other
capitalized term used herein not otherwise defined is defined in the Agreement).
(c) CDP and Mobius have agreed to modify the License Fees and
certain other provisions of the Agreement.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein and in the Agreement and the payment by each of the parties to
the other of the sum of ten dollars($10.00) and other good and valuable
consideration (the adequacy and the amount of which as to each of the parties
hereto is hereby mutually acknowledged), the parties hereto covenant and agree,
is appropriate, to amend the Agreement as follows:
1. Section 1.1(h) of the Agreement shall be amended to provide that
the term " License Fee Period" shall mean the period ending on the date of this
Amendment.
2. Schedule B, paragraph (3) to the Agreement shall be amended to
provide that upon the date of this Agreement, Mobius shall pay CDP the sum * in
full satisfaction of its License Fees obligations from the Agreement and the OEM
Agreement. Such payment shall be made by Mobius via wire transfer to the trust
account * of XxXxxxxx Xxxxxxxx, Toronto, Ontario, counsel to CDP, at the
Toronto-Dominion Bank, and upon such payment, the License Fees shall be payable
by Mobius.
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* The Redacted Material Has Been Separately Filed With The Commission.
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3. In the event there is any conflict or inconsistency between the
terms of the Agreement and this Amendment, the terms of this Amendment shall
govern.
4. CDP and Mobius confirm that except as specifically amended by
this Amendment, the Agreement shall remain in full force and effect.
5. This Amendment may be executed in any number of counterparts
which may be delivered by facsimile transmission, each of which shall be deemed
to be an original and all of which taken together shall constitute one and the
same instrument, and it shall not be necessary in establishing proof of this
Amendment to produce or account for more than one such counterpart.
IN WITNESS WHEREOF the parties have executed this Amendment on this
day 21st of November, 1997.
CDP COMMUNICATIONS INC.
By:/s/ X. Xxxxxxxxx
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Name: X. Xxxxxxxxx
Title:President
MOBIUS MANAGEMENT SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
