Exhibit 10.8
AMENDMENT NO. 1 TO
DATABASE ACCESS AND CONTENT LICENSE,
HOSTING AND SUPPORT AGREEMENT
This agreement No. 1 ("Amendment") amends the Database Access and Content
License Agreement ("Agreement") made and entered into as of March 17, 2005 (the
"Effective Date") by and between FIIC Research and Development LLC, an Ohio
Limited Liability Company, with its principal place of business located at 0000
Xxxxxx Xxxx, Xxxxxxxx, Xxxx 00000 ("Licensor"), and FIIC, Inc., an Delaware
corporation, with its principal place of business located at 0000 Xxxxxx Xxxx,
Xxxxxxxx, Xxxx 00000 ("Licensee"). All capitalized terms used in this Amendment
and not otherwise defined herein shall have the meanings ascribed to them in the
Agreement.
RECITALS
1. Licensor and Licensee remain committed to the performance of each
party's respective obligations under the Agreement.
2. Licensee has entered into an Agreement and Plan of Merger with
Xxxxxxxxx.xxx, Inc., a publicly traded Colorado corporation ("NBYS"), Nicklebys
Acquisition Corp., a Nevada corporation and wholly owned subsidiary of NBYS
("Merger Sub"), and five individual stockholders of NBYS, to merge Merger Sub
with and into Licensee (the "Merger").
3. In order to timely complete the pending Merger with NBYS and launch its
operations, for which the Database Content and Technology licensed under the
Agreement is integral, Licensor is entering a financing arrangement with Oceanus
Value Fund, L.P. ("Oceanus"), pursuant to which the parties now seek to amend
certain terms of the Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and in reliance upon the representations and warranties
hereinafter set forth, the parties, intending to be legally bound, amend the
Agreement as follows:
1. Subsection 2.1 is hereby deleted in its entirety and replaced with the
following:
2.1 Access and Use License. Licensor hereby grants to Licensee an
exclusive, non-transferable (subject to the limited assignment exception of
Section 11.3(b)), worldwide, perpetual right and license to access the Database,
to perform, display and use the Database Technology to interact with the
Database and to use the Database Content, with the rights to sublicense
described in Section 2.2.
2. Section 10 is hereby deleted in its entirety and replaced with the
following:
Section 10. Termination.
10.1 Termination for Default. Subject to the limitations of Section
10.5, the non-defaulting party shall be entitled to terminate this Agreement
upon written notice to the defaulting party if the defaulting party materially
breaches any obligation hereunder, which breach continues or remains uncured for
a period of sixty (60) days after receipt of written notice from the
non-defaulting party, unless such breach cannot by its nature be cured, in which
event the defaulting party shall be deemed in default hereof upon the occurrence
of such breach.
10.2 Licensor's Termination Rights. Subject to the limitations of
Section 10.5, Licensor shall have the right to terminate this Agreement if
Licensee (a) enters into any voluntary or involuntary receivership or bankruptcy
arrangement, makes a general assignment for the benefit of creditors, or
commences any case, proceeding, or other action seeking to have an order for
relief entered on its behalf as a debtor or to adjudicate it bankrupt or
insolvent; (b) seeks a reorganization, liquidation, dissolution or composition
of it or its debts under any law relating to bankruptcy, insolvency, or relief
of debtors, or appointment of a receiver, trustee, custodian, or similar
official for it or for all or any substantial part of its property; (c) has
entered against it a final order by a court of competent jurisdiction (i)
finding Licensee to be bankrupt or insolvent, (ii) ordering or approving
Licensee's liquidation, reorganization, or any modification or alteration of the
rights of its general creditors, or (iii) assuming custody of or appointing a
receiver or other custodian for all or a substantial part of Licensee's
property; or (d) ceases to do business in the ordinary course.
10.3 Licensee's Termination Rights. Subject to the limitations of
Section 10.5, Licensee shall have the right to terminate this Agreement without
cause; provided, however, that prior to such termination date, Licensee provides
Licensor with written notice of its intent to terminate this Agreement at least
ninety (90) days prior to such termination date.
10.4 Consequences of Termination. Upon termination of this Agreement
under this Section 10, Licensee's right to access the Hosted Database or
otherwise exercise any of Licensee's rights under Section 2 shall terminate, and
Licensee and Licensor each shall immediately destroy or permanently delete all
copies of any of the other party's Confidential Information then in its
possession. An officer of Licensee shall, upon completion by Licensee of such
destruction, certify in writing to Licensor that Licensee has in fact fulfilled
its obligations under this Section 10.4. An officer of Licensor likewise shall,
upon completion by Licensor of such destruction, certify in writing to Licensee
that Licensor has in fact fulfilled its obligations under this Section 10.4.
10.5 Restriction on Acts to Terminate. Notwithstanding either
party's right to take action to terminate the Agreement pursuant to Sections
10.1, 10.2, or 10.3 above, neither Licensor nor Licensee shall take any action
to terminate the Agreement and the Licensee's rights thereunder while the debt
evidenced by the Promissory Note from Licensee to Oceanus or the debt evidenced
by the 12% Senior Secured Convertible Promissory Note from NBYS to Oceanus (each
an "Oceanus Note", collectively the "Oceanus Notes") remains outstanding
pursuant to the terms and conditions of the Oceanus Notes, unless the party with
the right to terminate obtains prior written consent to such termination from
Oceanus.
3. Subsection 11.3 is hereby deleted in its entirety and replaced with the
following:
11.3 Assignment.
(a) Other than as expressly provided in Section 11.3(b), Licensee
shall neither assign any of its rights under this Agreement nor delegate its
duties hereunder to another person or legal entity without the prior written
consent of Licensor, which consent may be withheld for any reason, except
Licensee may assign any of its rights or delegate its duties under this
Agreement without prior consent of the Licensor pursuant to or in conjunction
with a merger with or acquisition of or by another entity.
(b) Notwithstanding the limitations of Section 11.3(a), Licensor
hereby consents to assignment of the Licensee's rights under the Agreement to
Oceanus upon a default by the Licensee of its obligations under its Oceanus Note
or its subsequent Corporate Guaranty to Oceanus.
(c) This Agreement shall inure to the benefit of and be binding upon
the parties hereto, their respective trustees, successors, permitted assigns,
and legal representatives, including all ongoing payment and reporting
obligations.
4. Subsection 11.5 is hereby deleted in its entirety and replaced with the
following:
11.5 Amendment. The parties may amend this Agreement only by
mutually executing a written amendment specifying the intended changes in terms
and conditions and the effective date of such amendment; provided, however, that
neither party shall take any action to amend the Agreement or the Licensee's
rights thereunder while the debt evidenced by the Oceanus Notes remains
outstanding pursuant to the terms and conditions of the Oceanus Notes, unless
the Licensor and Licensee obtain prior written consent to such amendment from
Oceanus.
5. The following information is hereby added to Subsection 11.8 (Notices) for
use in providing notice or seeking any required written consent(s):
Oceanus Value Fund, L.P.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and effective as of November 7, 2005.
FIIC Research and Development, LLC ("Licensor")
/s/ Xxxxx X. France
-------------------------
By: Xxxxx X. France
Its: Manager
FIIC, Inc. ("Licensee")
/s/ Xxxxx Xxxxxx
-------------------------
By: Xxxxx Xxxxxx
Its: Chief Operating Officer and Executive Vice President
