EXHIBIT 10.1
SECOND AMENDMENT TO
AMENDED AND RESTATED
SUBSCRIPTION LICENSE AGREEMENT
This SECOND AMENDMENT TO THE AMENDED AND RESTATED SUBSCRIPTION LICENSE AGREEMENT
(this "Amendment") is entered into on this ___ day of October, 2002 and is
deemed effective as of October 1, 2002 ("Effective Date") by and between
VerticalNet, Inc. ("VNI") and VerticalNet Enterprises LLC, formerly known as
Tradeum, Inc. which d/b/a VerticalNet Solutions ("VNS"), on the one hand, and
Converge, Inc., a Delaware corporation ("Converge"), on the other hand.
RECITALS
WHEREAS, VNI, VNS and Converge entered into a Subscription License Agreement
dated December 19, 2000, and amended same pursuant to a First Amendment to
Subscription License Agreement dated as of January 31, 2001 (the "Original
SLA"); and
WHEREAS, VNI, VNS and Converge entered into an AMENDED AND RESTATED SUBSCRIPTION
LICENSE AGREEMENT dated as of October 9, 2001 and amended same pursuant to a
FIRST AMENDMENT TO AMENDED AND RESTATED SUBSCRIPTION LICENSE AGREEMENT dated as
of February 1, 2002 (the "Amended and Restated SLA"), which superseded the
Original SLA in its entirety; and
WHEREAS, as a financial accommodation in favor of VNI, VNI, VNS and Converge
desire to enter into this Amendment which, as of the Effective Date, will amend
the Amended and Restated SLA to terminate any obligation by Verticalnet to
deliver any Future Products to Converge and to extinguish any and all right of
Converge to receive such Future Products.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and obligations set
forth below, and intending to be legally bound, the parties agree as follows:
I. To the extent other obligations, rights, representations and warranties set
forth in the Amended and Restated SLA are in full effect, such other
obligations, rights, representations and warranties remain unchanged by this
Amendment, except as follows:
A. Pursuant to Section 14.14 of the Amended and Restated SLA, Section
1.2.18 of the Amended and Restated SLA shall be deleted in its entirety.
B. Pursuant to Section 14.14 of the Amended and Restated SLA, Section
1.2.30 of the Amended and Restated SLA shall be deleted in its entirety
and replaced with the following paragraph, which shall become part of the
Amended and Restated SLA:
1.2.30 "Products" means (a) all present software products and
tools, including separately identified modules contained
therein, that are owned by VNI or any VNI Subsidiary or
licensed by Vert with the right to grant the necessary
sublicense right to Converge, except where such sublicense
right has been granted to Vert solely for the purpose of
reselling the third party software on a stand-alone basis and
for which Vert customarily separately charges a substantial
additional license fee to its sublicensees, and that are made
generally available by VNI or any VNI Subsidiary, on either a
stand-alone basis or as part or component of a service or
another Product provided by or for VNI or any VNI Subsidiary,
during the Product Term (whether or not generally available,
in development or planned as of the Effective Date),
including, without limitation, the products, tools and
separately
identified modules on Exhibit A hereto; and (b) all
Vert-General Release Enhancements to such software products
and tools that are released by Vert during the Product Term,
and (c) all Maintenance Updates provided by Vert to Converge
under the Maintenance and Support Agreement; and (d) all
Converge-Requested Enhancements provided by Vert to Converge
under the Maintenance and Support Agreement; and (e) all
Vert-Owned Deliverables.
C. Pursuant to Section 14.14 of the Amended and Restated SLA, Section
1.2.39 of the Amended and Restated SLA shall be deleted in its entirety
and replaced with the following paragraph, which shall become part of the
Amended and Restated SLA:
1.2.39 "Trade Secret Module" means any functionally discrete,
separately compilable component of a Product, the design of
which is not generally known or easily discovered by
observation or examination, and with respect to which the
Source Code is treated by Vert with a degree of care
significantly above and beyond the level with which it
normally treats other Source Code, provided that such
component includes application program interface(s) sufficient
to allow Converge to enjoy benefits substantially similar to
those that Converge would have enjoyed if it had obtained
Source Code for such component. As of the Effective Date, such
Trade Secret Modules include: the Parametric Matching Engine,
C2SF engine, C2Hub, Business Publisher and Business Publisher
Agent.
D. Pursuant to Section 14.14 of the Amended and Restated SLA, Section 2.12
of the Amended and Restated SLA shall be deleted in its entirety and
replaced with the following paragraph, which shall become part of the
Amended and Restated SLA:
2.12 Delivery. During the Product Term, subject to the
provisions of Section 12, Vert shall offer to deliver to
Converge all any Vert-General Release Enhancements promptly
following the date on which Vert makes the same generally
available to its other customers, or, if Vert makes such items
available as beta or other early release versions, promptly
following the date on which Vert makes the same available in
such format to any of its other customers; provided, however,
that Vert shall not be obligated to provide Maintenance and
Support Services under the Maintenance and Support Agreement
for such pre-release versions, and such pre-release versions
shall not be used in a production environment without Vert's
consent). If Converge elects to implement and deploy any such
Vert-General Release Enhancement, Vert shall deliver same to
Converge pursuant to Section 2.13 From and after the
Prohibited Change in Control Remedy Election Date, until the
end of the Product Term, Vert shall only be obligated to
deliver to Converge Vert-General Release Enhancements to
Products that are Deployed Products as of the occurrence of
the Prohibited Change in Control.
E. Pursuant to Section 14.14 of the Amended and Restated SLA, Section 11
of the Amended and Restated SLA shall be deleted in its entirety and
replaced with the following paragraph, which shall become part of the
Amended and Restated SLA:
11. Effect of Remedy Election. Upon the occurrence of a Vert
Remedy Election or a Converge Remedy Election, the Product
Term shall end effective on the Vert Remedy Election Date or
the Converge Remedy Election Date, as applicable, and each
party shall erase, destroy or return to the other party all
copies of the Confidential Information of or provided by such
party, and, upon such other party's written request, shall
certify its compliance with this Section 11 to the other party
in writing. Notwithstanding the foregoing provisions of this
Section 11, (a) with respect to and for so long as any
licenses granted to Converge respecting Products survive a
Vert Remedy Election or a Converge Remedy Election, as
applicable, Converge shall not be required to erase, destroy
or return such Products or any Confidential Information of VNI
or any of the VNI Subsidiaries respecting such Products, and
(b) with respect to and for so long as any licenses granted to
Converge respecting Source Code survive a Converge Remedy
Election, Converge shall not be required to erase, destroy or
return such Source Code or any Confidential Information of VNI
or any of the VNI Subsidiaries respecting such Source Code.
With respect to the payment obligations of Converge relating
to the effect or lack of effect of a Converge Remedy Election
or Vert Remedy Election, respectively, the provisions of
Section 3.1.2 and/or Section 3.1.3 shall apply.
F. Pursuant to Section 14.14 of the Amended and Restated SLA, Section 12
of the Amended and Restated SLA shall be deleted in its entirety and
replaced with the following paragraph, which shall become part of the
Amended and Restated SLA:
12. Prohibited Change in Control of Converge. If a Prohibited
Change in Control of Converge shall occur at any time during
the term of this Agreement, Vert shall have the right, but not
the obligation, to make a "Prohibited Change in Control Remedy
Election," exercisable by delivering written notice thereof to
Converge within 10 Business Days after Vert receives written
notice of the occurrence of the Prohibited Change in Control
of Converge, or the Prohibited Change in Control of Converge
is publicly announced. Upon the occurrence of a Prohibited
Change in Control Remedy Election, the Product Term shall not
end. From and after the Prohibited Change in Control Remedy
Election Date, until the end of the Product Term, Vert shall
only be obligated to deliver to Converge Vert-General Release
Enhancements to Products that are Deployed Products as of the
occurrence of the Prohibited Change in Control. With respect
to the payment obligations of Converge relating to the lack of
effect of a Prohibited Change in Control Remedy Election the
provisions of Section 3.1.3 shall apply.
G. Each of Verticalnet and Customer agree that nothing set forth herein
will relieve either Verticalnet or Customer from those provisions of the
Amended and Restated SLA that by the provisions of the Amended and
Restated SLA are to survive termination of the Amended and
Restated SLA and that each will comply with its obligations that are to
survive upon termination the Amended and Restated SLA.
H. Neither Verticalnet nor Customer shall publicly disclose the fact that
they have entered into this Amendment, or any of the terms, conditions or
provisions of this Amendment, except as may be required by any applicable
law, rule or regulation.
II. GENERAL
A. Capitalized Terms. All capitalized terms not defined herein shall have
the meaning ascribed to them in the Amended and Restated SLA.
B. Titles. The headings appearing at the beginning of the sections
contained herein have been inserted for identification and reference
purposes only and shall not be used to determine the construction or
interpretation of this Amendment. The nomenclature of the defined terms
used herein shall only be used for the construction of this Amendment, and
are not to be used for any other purpose, including, but not limited to,
interpretation for accounting purposes.
C. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument. This Amendment
shall become binding when any one or more counterparts hereof,
individually or taken together, bear the signatures of both Parties. For
the purposes hereof, a facsimile copy of this Amendment, including the
signature pages hereto, shall be deemed an original.
IN WITNESS WHEREOF, the parties have had their duly authorized representatives
execute this SECOND AMENDMENT TO THE AMENDED AND RESTATED SUBSCRIPTION LICENSE
AGREEMENT as of the Effective Date.
CONVERGE VNI
Converge, Inc. Verticalnet, Inc.
By: ____________________________ By: ____________________________
Name: ____________________________ Name: ____________________________
Title: ____________________________ Title: ____________________________
Date ____________________________ Date ____________________________
VNS
Verticalnetenterprises LLC
By: ____________________________
Name: ____________________________
Title: ____________________________
Date ____________________________
