AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
AMENDED
AND RESTATED AGREEMENT AND PLAN OF MERGER
This
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (hereinafter called this
"Agreement"),
dated
as of September 13, 2005, is entered into between Level 8 Systems, Inc.,
a
public company incorporated in the State of Delaware (the "Company")
and
Cicero, Inc., a Delaware corporation ("Cicero").
RECITALS
WHEREAS,
the board of directors of each of the Company and Cicero deems it advisable,
upon the terms and subject to the conditions herein stated, that the Company
be
merged with and into Cicero, and that Cicero be the surviving corporation
(the
"Merger");
and
WHEREAS,
the Company will submit this Agreement for approval by a vote of the holders
of
shares of the Company’s common stock, par value $0.001 per share (the
“Company
Common Stock”),
and
for approval by a vote by class of each currently issued and outstanding
series
of preferred stock of the Company.
WHEREAS,
the parties entered into an Agreement and Plan of Merger ("Original
Merger Agreement");
dated
as of December 31, 2004; and
WHEREAS,
the parties have agreed to amend and restate in its entirety the Original
Merger
Agreement as set forth herein;
NOW,
THEREFORE, in consideration of the premises and of the agreements of the
parties
hereto contained herein, the parties hereto agrees as follows:
ARTICLE
I
THE
MERGER; EFFECTIVE TIME
1.1.
The
Merger. Upon
the
terms and subject to the conditions set forth in this Agreement, at the
Effective Time (as defined in Section 1.2), the Company shall be merged
with and into Cicero whereupon the separate existence of the Company shall
cease. Cicero shall be the surviving corporation (sometimes hereinafter referred
to as the "Surviving
Corporation")
in the
Merger and shall continue to be governed by the laws of the State of Delaware.
The Merger shall have the effects specified in the General Corporation Law
of
the State of Delaware, as amended (the "DGCL"),
and
the Surviving Corporation shall succeed, without other transfer, to all of
the
assets and property (whether real, personal or mixed), rights, privileges,
franchises, immunities and powers of the Company, and shall assume and be
subject to all of the duties, liabilities, obligations and restrictions of
every
kind and description of the Company, including, without limitation, all
outstanding indebtedness of the Company.
1.2.
Effective Time.
Provided
that the conditions set forth in Section 6.1 have been fulfilled or waived
in accordance with this Agreement and that this Agreement has not been
terminated or abandoned pursuant to Section 7.1, as soon as practicable after
such conditions shall be fulfilled or waived as aforesaid, the Company and
Cicero shall cause a Certificate of Merger to be executed and filed with
the
Secretary of State of Delaware (the "Delaware
Certificate of Merger").
The
Merger shall become effective upon the date and time specified in the Delaware
Certificate of Merger (the "Effective
Time").
ARTICLE
II
CHARTER
AND BYLAWS OF THE SURVIVING CORPORATION
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2.1.
The
Certificate of Incorporation.
The
certificate of incorporation of Cicero in effect at the Effective Time shall
be
the certificate of incorporation of the Surviving Corporation, until amended
in
accordance with the provisions provided therein or applicable law.
2.2.
The
Bylaws. The
bylaws of Cicero in effect at the Effective Time shall be the bylaws of the
Surviving Corporation, until amended in accordance with the provisions provided
therein or applicable law.
ARTICLE
III
OFFICERS,
DIRECTORS AND EMPLOYEES OF THE SURVIVING CORPORATION
3.1.
Officers.
The
officers of the Company at the Effective Time shall, from and after the
Effective Time, be the officers of the Surviving Corporation, until their
successors have been duly elected or appointed and qualified or until their
earlier death, resignation or removal.
3.2.
Directors.
The
directors and the members of the various committees of the board of directors
of
the Company at the Effective Time shall, from and after the Effective Time,
be
the directors and members of such committees of the Surviving Corporation,
until
their successors have been duly elected or appointed and qualified or until
their earlier death, resignation or removal. At the Effective Time, the right
of
the holders of Cicero Series A-1 Preferred Stock, to elect a majority of
the
voting members of the board of directors as a result of the failure of Level
8
to achieve consolidated revenues of more than $1,500,000 as reflected on
its
financial statements for the six months ended December 31, 2004, shall be
waived.
3.3.
Employees.
The
employees of the Company at the Effective Time shall, from and after the
Effective Time, be employees of the Surviving Corporation, under the same
terms
and conditions as their employment with the Company at the Effective Time.
All
employee benefit plans applicable to any Company employee at the Effective
Time
shall, from and after the Effective Time, be applicable to such employee
as an
employee of the Surviving Corporation. The Surviving Corporation shall assume
all liabilities of the Company existing at the Effective Time with respect
to
any employee benefit plans.
ARTICLE
IV
EFFECT
OF
MERGER ON CAPITAL STOCK
4.1.
Effect of Merger on Capital Stock.
At the
Effective Time, as a result of the Merger and without any action on the part
of
the Company, Cicero or the shareholders of the Company:
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a.
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Each
share of Company Common Stock issued and outstanding immediately
prior to
the Effective Time shall be converted (without the surrender of
stock
certificates or any other action) into one-twentieth (.05) of a
share of
fully paid and non-assessable share of common stock, par value
$0.001, of
Cicero (“Cicero
Common Stock"),
with the same rights, powers and privileges as the shares so converted
and
all shares of Company Common Stock shall be cancelled and retired
and
shall cease to exist.
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b.
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Notwithstanding
any other provision of this Agreement, no fraction of a share of
Cicero
Common Stock will be issued. Instead, Cicero shall pay to each
holder of
Company Common Stock who would otherwise be entitled to a fraction
of a
share of Cicero Common Stock an amount in cash equal to (i) the
fraction
of a share of Cicero Common Stock to which such holder would otherwise
be
entitled, multiplied by (ii) the actual market value of Cicero
Common
Stock, which shall be deemed to be the average of the closing bid
prices
of the Company’s Common Stock as reported to OTCBB during each of the five
(5) trading days preceding the Effective Date of the Merger.
Following consummation of the Merger, no holder of Company Common
Stock
shall be entitled to dividends or any other rights in respect of
any such
fraction.
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c.
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Each
share of the Company’s Series A3 Preferred Stock, par value $0.001 per
share (the “Series
A3 Preferred Stock”),
issued and outstanding immediately prior to the Effective Time
(other than
shares to which appraisal rights are duly exercised) shall be converted
(without the surrender of stock certificates or any other action)
into
.0142857 shares of fully paid and non-assessable shares of Series
A-1
Preferred Stock, par value $0.001, of Cicero ("Cicero
A-1 Preferred Stock").
Each share of Cicero A-1 Preferred Stock will convert into 1,000
shares of
the Company Common Stock with the rights, powers and privileges,
set forth
in the Cicero A-1 Preferred Stock certificate of designation and
all
shares of the Company’s Series A3 Preferred Stock shall be cancelled and
retired and shall cease to exist.
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d.
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Each
share of the Company’s Series B3 Preferred Stock, par value $0.001 per
share (the “Series
B3 Preferred Stock”),
issued and outstanding immediately prior to the Effective Time
(other than
shares to which appraisal rights are duly exercised) shall be converted
(without the surrender of stock certificates or any other action)
into
.0125 shares of fully paid and non-assessable shares of Cicero
A-1
Preferred Stock, Each share of Cicero A-1 Preferred Stock will
convert
into 1,000 shares of the Company Common Stock with the rights,
powers and
privileges, set forth in the Cicero A-1 Preferred Stock certificate
of
designation and all shares of the Company’s Series B3 Preferred Stock
shall be cancelled and retired and shall cease to
exist.
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e.
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Each
share of the Company’s Series C Preferred Stock, par value $0.001 per
share (the “Series
C Preferred Stock”),
issued and outstanding immediately prior to the Effective Time
(other than
shares to which appraisal rights are duly exercised) shall be converted
(without the surrender of stock certificates or any other action)
into .20
shares of fully paid and non-assessable shares of Cicero A-1 Preferred
Stock, Each share of Cicero A-1 Preferred Stock will convert into
1,000
shares of the Company Common Stock with the rights, powers and
privileges,
set forth in the Cicero A-1 Preferred Stock certificate of designation
and
all shares of the Company’s Series C Preferred Stock shall be cancelled
and retired and shall cease to
exist.
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f.
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Each
share of the Company’s Series D Preferred Stock, par value $0.001 per
share (the “Series
D Preferred Stock”),
issued and outstanding immediately prior to the Effective Time
(other than
shares to which appraisal rights are duly exercised) shall be converted
(without the surrender of stock certificates or any other action)
into .25
shares of fully paid and non-assessable shares of Cicero A-1 Preferred
Stock, Each share of Cicero A-1 Preferred Stock will convert into
1,000
shares of the Company Common Stock with the rights, powers and
privileges,
set forth in the Cicero A-1 Preferred Stock certificate of designation
and
all shares of the Company’s Series D Preferred Stock shall be cancelled
and retired and shall cease to
exist.
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g.
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Certain
Promissory Notes of the Company (the “Convertible
Promissory Notes”)
shall, at the option of the holder thereof, be converted into such
number
of fully paid and non-assessable shares of Cicero A-1 Preferred
Stock that
would convert into the same number of shares of the Company Common
Stock
that the Convertible Promissory Notes would convert into immediately
prior
to the Effective Time, at conversion prices ranging from $0.026
to $0.007
and all of the Company’s Convertible Promissory Notes, if so elected by
the Noteholders, shall be cancelled and retired and shall cease
to
exist.
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h.
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The
senior secured notes of Xxxxx 0 (“Senior
Reorganization Notes”)
issued in the aggregate principal amount of $2,559,000 to holders
of
warrants of Level 8 who loaned to Xxxxx 0 the exercise price of
their
warrants and other investors who lent funds to Xxxxx 0 (“Senior
Reorganization Noteholders”)
in exchange for Senior Reorganization Notes and additional warrants,
pursuant to note and warrant offerings in December 2004 ($1,615,000)
and
March 2005 ($944,000) (the “Note
and Warrant Offerings”),
will be cancelled and the existing warrants in respect of which
the
exercise price was loaned to Xxxxx 0, as evidenced by the Senior
Reorganization Notes, will be deemed exercised.
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i.
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The
warrants of Level 8 (“Additional
Warrants”)
issued to Senior Reorganization Noteholders in connection with
their loans
to Xxxxx 0, exercisable at $.002 per share in the event of the
consummation of the merger, to acquire shares of Level 8 common
stock,
will automatically be deemed exercised, by applying the accrued
interest
on the holder’s Senior Reorganization Notes and by cashless exercise to
the extent of the balance of the exercise
price.
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j.
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The
convertible bridge notes (the “Convertible
Bridge Notes”)
held by convertible bridge noteholders (the “Convertible Bridge
Noteholders”) who had loaned money to Level 8 as part of the September
2005 consortium note offering (the “Consortium
Note Offering”)
will be automatically converted into shares of Cicero common stock
at a
conversion price determined as follows:
Effective
Date Conversion
Price
After
December 31, 2005 $0.025
After
October 31, 2005 $0.0314
Before
October 31, 2005 $0.037
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k.
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Each
option, warrant, purchase right, unit or other security of the
Company
issued and outstanding immediately prior to the Effective Time,
not
including
the Convertible Promissory Notes, the Convertible Bridge Notes,
the Series
A3 Preferred Stock, the Series B3 Preferred Stock, the Series C
Preferred
Stock and the Series D Preferred Stock (the “Convertible
Securities”),
but including stock options of Level 8 issued pursuant to its stock
option
plan and warrants of Level 8 (“Early Adopter Warrants”) issued to Senior
Reorganization Noteholders who loaned Level 8 the first $1,000,000
in
respect of the exercise price of their warrants, shall be
(i) converted into and shall be an identical security of Cicero,
however the number of shares of Cicero Common Stock underlying
such
Convertible Securities shall be one-twentieth (.05) of the number
of
shares Company Common Stock into which the Convertible Securities
were
convertible into immediately prior to the Effective Time, and the
conversion price shall increase by twenty times in accordance with
the
terms of such Convertible Securities. Cicero shall cause to be
reserved
for purposes of the exercise of such options, warrants, purchase
rights,
units or other securities, such number of shares of Cicero Common
Stock as
is sufficient to underly such Convertible Securities.
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l.
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Each
share of Cicero Common Stock owned by the Company or any other
person
immediately prior to the Effective Time shall no longer be outstanding
and
shall be cancelled and retired and shall cease to exist.
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4.2. Notwithstanding
any provision of this Agreement to the contrary, any shares of preferred
stock
of the Company with respect to which appraisal rights shall have been properly
perfected in accordance with the DGCL (“Dissenters’ Shares”) shall not be
converted into or represent a right to receive any of the consideration provided
in Section 4.1, but the holder shall only be entitled to such rights as are
granted by the DGCL. If a holder of shares of Company preferred stock who
demands appraisal of such shares under the DGCL shall effectively withdraw
or
otherwise lose (through failure to perfect or otherwise) the right to appraisal,
then, as of the Effective Time or the occurrence of such event, whichever
last
occurs, such shares of Company preferred stock shall be
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converted
into and represent only the right to receive the consideration provided in
Section 4.1(c), in the case of Company Series A3 Preferred Stock, the
consideration provided in Section 4.1(d), in the case of Company Series B3
Preferred Stock, the consideration provided in Section 4.1(e), in the case
of
Company Series C Preferred Stock, and the consideration provided in Section
4.1(f), in the case of Company Series D Preferred Stock, in each case without
interest, upon the surrender of the certificate or certificates representing
such shares of Company preferred stock.
4.3. Certificates.
At and
after the Effective Time, all of the outstanding certificates and other
evidences which immediately prior thereto represented shares of Company Common
Stock, or Convertible Securities of the Company (collectively, “Certificates”)
shall be deemed for all purposes to evidence ownership of and to represent
the
shares of the respective Cicero Common Stock, Cicero A-1 Preferred Stock,
or
options, warrants, purchase rights, units or other securities of Cicero,
as the
case may be, into which the shares of Company Common Stock, Convertible
Securities, or options, warrants, purchase rights, units or other securities
of
the Company represented by such certificates or other evidences have been
converted as herein provided and shall be so registered on the books and
records
of the Surviving Corporation or its transfer agent.
ARTICLE
V
EXCHANGE
OF CERTIFICATES
5.1. Exchange
Agent.
Prior to
the Effective Time, the Company may, in its discretion, appoint a commercial
bank or trust company to act as exchange agent hereunder for the purpose
of
exchanging Certificates for the applicable merger consolidation (the “Exchange
Agent”). If the Company shall so appoint an Exchange Agent, the Company shall
deposit with the Exchange Agent, in trust for the benefit of holders of Company
Common Stock and Convertible Securities, certificates representing the
applicable Cicero capital stock issuable pursuant to Section 4.1 in exchange
for
outstanding shares of Company Common Stock and Convertible Securities in
the
Merger pursuant to Section 4.1, and the Company agrees to pay or make available
to the Exchange Agent from time to time as needed cash sufficient to pay
cash in
lieu of fractional shares pursuant to Section 4.1(b) and any dividends and
other
distributions pursuant to Section 5.3.
5.2. Exchange
Procedures.
As soon
as reasonably practicable after the Effective Time, the Surviving Corporation
shall mail or cause the Exchange Agent to mail to each holder of Company
Common
Stock and Convertible Securities (i) a letter of transmittal which shall
specify
that delivery shall be effected, and risk of loss and title to the Certificates
shall pass, only upon delivery of the Certificates as provided in the letter
of
transmittal, and which letter shall be in such form and have such other
provisions as the Surviving Corporation may reasonably specify and (ii)
instructions for effecting the surrender of such Certificates in exchange
for
the applicable Merger consideration. Upon surrender of a Certificate as provided
in the letter of transmittal together with such letter of transmittal, duly
executed and completed in accordance with the instructions thereto, and such
other documents as may reasonably be required by the Surviving Corporation
or
the Exchange Agent (if any), the holder of such Certificate, shall be entitled
to receive in exchange therefore (A) one or more shares of applicable Cicero
capital stock representing, in the aggregate, the whole number of shares
of the
series or class that such holder has the right to receive pursuant to Section
4.1, and (B) a check in the amount equal to the cash that such holder has
the
right to receive pursuant to the provisions of Section 4.1(b) in respect
of any
fractional shares and any dividends or other distributions pursuant to Section
5.3, and in each case the Certificate so surrendered shall forthwith be
canceled. No interest will be paid or will accrue on any cash payable pursuant
to Section 4.1(b) or 5.3. In the event of a transfer of ownership of Company
Common Stock or Convertible Securities which is not registered in the transfer
records of the Company, one or more shares of applicable Cicero capital stock
evidencing, in the aggregate, the proper number of shares of applicable Cicero
capital stock and a check in the proper amount of cash in lieu of any fractional
shares of applicable capital stock pursuant to Section 4.1(b) and any dividends
or other distributions of which such holder is entitled pursuant to Section
5.3,
may be issued with respect to such Cicero capital stock to such a transferee
if
the Certificate representing such shares of Cicero capital stock is presented
to
the Surviving Corporation or the Exchange Agent (if any), accompanied by
all
documents required to evidence and effect such transfer and to evidence that
any
applicable stock transfer taxes have been paid.
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5.3. Unexchanged
Certificates.
No
dividends or other distributions declared or made with respect to shares
of
Cicero capital stock with a record date after the Effective Date shall be
paid
to the holder of any unsurrendered Certificate with respect to the shares
of
Cicero capital stock that such holder would be entitled to receive upon
surrender of such Certificate and no cash payment in lieu of fractional shares
of Company Common Stock or Convertible Securities shall be paid to any holder
pursuant to Section 4.1(b) until such holder shall surrender such Certificate
in
accordance with Section 5.2. Subject to the effect of applicable laws, following
surrender of any such Certificate, there shall be paid to such holder of
shares
Cicero capital stock issuable in exchange therefore, without interest, (a)
promptly after the time of such surrender, the amount of any cash payable
in
lieu of fractional shares of Cicero capital stock to which such holder is
entitled pursuant to Section 4.1(b) and the amount of dividends or other
distributions with a record date after the Effective Time theretofore paid
with
respect to such whole shares of Cicero capital stock and (b) at the appropriate
payment date, the amount of dividends or other distributions with a record
date
after the Effective Time but prior to such surrender and a payment date
subsequent to such surrender payable with respect to such shares of Cicero
capital stock. The registered owner of any such outstanding Certificate
representing voting securities of the Company shall, until such certificate
or
other evidences shall have been surrendered for transfer or otherwise accounted
for to the Surviving Corporation or the Exchange Agent (if any), have and
be
entitled to exercise any voting and other rights with respect to the shares
of
Cicero Common Stock, Cicero A-1 Preferred Stock or options, warrants, purchase
rights, units or other securities of Cicero, as the case may be, evidenced
by
such outstanding Certificate, as above provided.
5.4. No
Further Ownership Rights in Company Securities.
All
shares of Cicero capital stock issued and cash paid upon conversion of shares
of
Company Common Stock and Convertible Securities in accordance with the terms
of
Article IV and this Article V (including any cash paid pursuant to Sections
4.1(b) and 5.3) shall be deemed to have been issued or paid in full satisfaction
of all rights pertaining to the shares of Company Common Stock and Convertible
Securities, subject, however, to the Surviving Corporation’s obligations to pay
any dividends or make any other distributions with a record date prior to
the
Effective Time which may have been declared or made by the Company on such
shares of Company Common Stock and Convertible Securities which remain unpaid
at
the Effective Time, and there shall be no further registration of transfers
on
the stock transfer books of the Surviving Corporation of the shares of Company
Common Stock and Convertible Securities which were outstanding immediately
prior
to the Effective Time. If, after the Effective Time, Certificates are presented
to the Surviving Corporation or the Exchange Agent for any reason, they shall
be
canceled and exchanged as provided in this Article V.
5.5. No
Liability.
None of
the Company, Cicero, the Surviving Corporation or the Exchange Agent shall
be
liable to any Person in respect of any Merger consideration, any dividends
or
distributions with respect thereto or any cash in lieu of fractional shares
of
applicable Cicero capital stock, in each case delivered to a public official
pursuant to any applicable abandoned property, escheat or similar law. If
any
Certificate shall not have been surrendered prior to three years after the
Effective Time (or immediately prior to such earlier date on which any Merger
consideration, any dividends or distributions payable to the holder of such
Certificate or any cash payable in lieu of fractional shares of Cicero capital
stock pursuant to this Article V, would otherwise escheat to or become the
property of any governmental entity), any such Merger consideration, dividends
or distribution in respect thereof or such cash shall, to the extent permitted
by applicable law, be delivered to Cicero, upon demand, and any holders of
Company Common Stock and Convertible Securities who have not therefore complied
with the provisions of this Article V shall thereafter look only to Cicero
for
satisfaction of their claims for such Merger consideration, dividends or
distributions in respect thereof or such cash.
5.6. Lost
Certificates. If
any
Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the
Person
claiming such Certificate to be lost, stolen or destroyed and, if required
by
the Surviving Corporation, the posting by such Person of a bond in such
reasonable amount as the Surviving Corporation may direct as indemnity against
any claim that may be made against it with respect to such Certificate, the
Surviving Corporation or the Exchange Agent (if any) will deliver in exchange
for such lost, stolen or destroyed Certificate the applicable Merger
consideration with respect to the shares of Company Common Stock
and
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Convertible
Securities formerly represented thereby, and cash in lieu of fractional shares
of Cicero capital stock, and unpaid dividends and distributions on shares
of
Cicero capital stock deliverable in respect thereof, pursuant to this
Agreement.
5.7. Withholding
Rights.
The
Surviving Corporation shall be entitled to deduct and withhold from the
consideration otherwise payable pursuant to this Agreement to any holder
of
shares of Company Common Stock and Convertible Securities such amounts as
it is
required to deduct and withhold with respect to the making of such payment
under
the Internal Revenue Code and the rules and regulations promulgated thereunder,
or any provision of state, local or foreign tax law. To the extent that amounts
are so withheld by the Surviving Corporation such withheld amounts shall
be
treated for all purposes of this Agreement as having been paid to the hold
of
the shares of Company Common Stock and Convertible Securities in respect
of
which such deduction and withholding was made by the Surviving
Corporation.
5.8. Stock
Transfer Books.
At the
close of business, New York City time, on the day the Effective Time occurs,
the
stock transfer books of the Company shall be closed and there shall be no
further registration of transfers of shares of Company Common Stock and
Convertible Securities thereafter on the records of the Company. From and
after
the Effective Time, the holders of Certificates shall cease to have any rights
with respect to such shares of Company Common Stock and Convertible Securities
formerly represented thereby, except as otherwise provided herein or by law.
On
or after the Effective Time, any Certificates presented to the Exchange Agent
or
Cicero for any reason shall be converted into the Merger consideration with
respect to the shares of Company Common Stock and Convertible Securities
formerly represented thereby, any cash in lieu of fractional shares of Cicero
capital stock to which the holders thereof are entitled pursuant to Section
4.1(b) and any dividends or other distributions to which the holders thereof
are
entitled pursuant to Section 5.3.
ARTICLE
VI
CONDITION
6.1.
Condition to Each Party's Obligation to Effect the Merger.
The
respective obligation of each party hereto to effect the Merger is subject
to
receipt prior to the Effective Time of the requisite approval of this Agreement
and the transactions contemplated hereby by (i) the holders of a majority
of
voting power of the issued and outstanding shares of Level 8 common stock
and
Series A3, B3, C and D preferred stock (each voting on an as-converted basis)
entitled to vote thereon, voting together as a single class, (ii) the holders
of
at least two-thirds of the issued and outstanding shares of Series D preferred
stock entitled to vote thereon, voting as a single class and (iii) the holders
of at least 85% of the issued and outstanding shares of Series X-0, X-0 and
C
preferred stock entitled to vote thereon.
ARTICLE
VII
TERMINATION
7.1.
Termination. This
Agreement may be terminated, and the Merger may be abandoned, at any time
prior
to the Effective Time, whether before or after approval of this Agreement
by the
shareholders of the Company, if the board of directors of the Company determines
for any reason, in its sole judgment and discretion, that the consummation
of
the Merger would be inadvisable or not in the best interests of the Company
and
its shareholders. In the event of the termination and abandonment of this
Agreement, this Agreement shall become null and void and have no effect,
without
any liability on the part of either the Company or Cicero, or any of their
respective shareholders, directors or officers.
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ARTICLE
VIII
MISCELLANEOUS
AND GENERAL
8.1. Modification
or Amendment. Subject
to the provisions of applicable law, at any time prior to the Effective Time,
the parties hereto may modify or amend this Agreement; provided, however,
that
an amendment made subsequent to the approval of this Agreement by the holders
of
Company Common Stock, Series A3 Preferred Stock, Series B3 Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock and holders of Convertible
Notes, shall not (i) alter or change the amount or kind of shares and/or
rights to be received in exchange for or on conversion of all or any of the
shares or any class or series thereof of such corporation, (ii) alter or
change any provision of the certificate of incorporation of the Surviving
Corporation to be effected by the Merger, or (iii) alter or change any of
the terms or conditions of this Agreement it such alteration or change would
adversely affect the holders of any class or series of capital stock of any
of
the parties hereto.
8.2. Counterparts. This
Agreement may be executed in any number of counterparts, each such counterpart
being deemed to be an original instrument, and all such counterparts shall
together constitute the same agreement.
8.3. Governing
Law. This
Agreement shall be deemed to be made in and in all respects shall be
interpreted, construed and governed by and in accordance with the law of
the
State of Delaware without regard to the conflict of law principles thereof.
8.4. Entire
Agreement. This
Agreement constitutes the entire agreement and supercedes all other prior
agreements, understandings, representations and warranties both written and
oral, among the parties, with respect to the subject matter hereof.
8.5. No
Third Party Beneficiaries. This
Agreement is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
8.6. Severability. The
provisions of this Agreement shall be deemed severable and the invalidity
or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. If any provision of this
Agreement, or the application thereof to any person or any circumstance,
is
determined by any court or other authority of competent jurisdiction to be
invalid or unenforceable, (a) a suitable and equitable provision shall be
substituted therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable provision
and (b) the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
8.7. Headings. The
headings therein are for convenience of reference only, do not constitute
part
of this Agreement and shall not be deemed to limit or otherwise affect any
of
the provisions hereof.
[SIGNATURE
PAGE FOLLOWS]
A
-
8
IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
duly
authorized officers of the parties hereto as of the date first written above.
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LEVEL
8 SYSTEMS, INC.
a
Delaware corporation
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By
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/s/Xxxx
X. Xxxxxxxxx
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Name:
Xxxx X. Xxxxxxxxx
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Title:
Chief Executive Officer
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CICERO,
INC.
a
Delaware corporation
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By
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/s/Xxxx
X. Xxxxxxxxx
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Name:
Xxxx X. Xxxxxxxxx
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Title:
Chief Executive Officer
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