Amendment No. 2 to the
Software License Agreement
This Amendment
No. 2 (the “Amendment”) to the Software License
Agreement (Sun Legal Files Index No. 80613) as amended by
Amendment No. 1 (Sun LFI# 90457) and the Wireless Toolkit
Supplement to the Sun Community Source Licenses (Sun LFI# 107228),
the Software License Agreement, Amendment No. 1 and the WTK
Supplement are collectively referred to as the
“Agreement”), by and between Sun Microsystems,
Inc., a Delaware corporation with principal place of business
at 4150 Network Circle, Santa Clara, California 95054 and
Borland Software Corporation, located at 20450 Stevens Creek
Boulevard, Suite 800, Cupertino, California 95014-2265 100
Enterprise Way, Scotts Valley, California 95066
(“Borland” or “Customer”), is entered into
as of the 22nd day of December 2005.
WHEREAS, Sun and
Customer entered into the Agreement pursuant to which Customer
licenses certain Java Technologies, including J2SE, J2EE and J2ME
(now known as “JSE,” “JEE” and
“JME” respectively) from Sun for use with
Customer’s products;
WHEREAS, Customer
and Sun desire among other things to amend the Agreement to extend
the term of the Agreement, terminate the licenses for certain Sun
Technologies and license the Java Wireless Toolkit in binary
form.
NOW THEREFORE, for
and in consideration of the mutual promises, provisions and
covenants herein contained, and for other good and valuable
consideration, the sufficiency and receipt of which is hereby
acknowledged, the parties agree as follows:
1. The parties
agree to amend the expiration date of the current Renewal Term of
the Agreement from December 28, 2005 to 11:59 p.m. on
December 21, 2005. The parties further agree that, effective
December 22, 2005, the Agreement shall renew as amended herein
for subsequent term of three years continuing through and until
11:59 p.m. on December 21, 2008 (“Renewal
Term”). Customer may elect to extend the term of the
agreement for up to two additional one-year renewal terms at the
fees set forth in Section 2 herein by issuing purchase order
to Sun no less than 30 days prior to the expiration of the
Renewal Term or the then-current renewal term.
2. Renewal
Fees. (a) Customer shall make nonrefundable, non-transferable
payment in the sum of $1,225,000.00 (“Program Fees” or
“Brand Maintenance Fees”) on or before January 23,
2006. The payment by Customer of the Brand Maintenance Fees
pursuant to this Amendment shall be in lieu of any license fees,
royalties or support fees associated with the technology except for
the fees provided in Amendment No. 8 to the Master
Sup
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