SOFTWARE LICENSE AGREEMENT
--------------------------
This Software License Agreement (hereinafter the "Agreement"),
is hereby
executed on this 26th day of January, 2005, by and between VSUS
Technologies,
Inc., a Delaware corporation ("Licensor") having its principal
executive offices
at 444 Madison Avenue, 24th floor, New York, NY 10022, c/o Great
Court Capital,
and ViVaVu Systems, Ltd., an Israeli corporation ("Licensee")
founded by Mr.
Amiram Ofir, an individual residing in Israel ("Amiram") who, prior
to today,
was the founder and Chief Executive Officer of Licensor.
WHEREAS, Licensor is the owner of software and related
intellectual
property originally developed by an affiliate of Licensee, and
obtained by
Licensor when it acquired certain assets from Licensee and as
further developed
through January 25, 2005 (the "Original IP"); and
WHEREAS, a dispute has arisen between Licensor and Amiram, who
was the
original developer of the Original IP, involving, among other
things, the rights
to the Original IP;
WHEREAS, in settlement of that dispute between the Licensor
and Licensee,
among other consideration, Licensee is now leaving the employ of
Licensor, and
the parties are executing, simultaneously herewith, a Software
Escrow Agreement
(the "Escrow Agreement") placing into escrow the source code for
the Original IP
(the "Source Code");
WHEREAS, Licensee desires to use the Original IP for purposes
of
specialized secure E-mail applications and other applications; and
WHEREAS, Licensor expects in the very near future to acquire
1stAlerts
Inc., a Delaware corporation ("First Alerts") and wishes to provide
incentive
for Licensee to assist it (for compensation) in developing certain
applications
of the Original IP that may be useful in that business;
NOW, THEREFORE, in consideration of the mutual promises
hereinafter set
forth, the parties, intending to be legally bound, hereby covenant
and agree as
follows:
1. Grant. (a) Licensor hereby irrevocably grants to Licensee, in
consideration
of the royalty payments described in Section 3 hereof and for other
good and
valuable consideration, and Licensee hereby accepts, a worldwide,
perpetual
license (a) to use the Original IP internally in its own
operations, or those of
any affiliates, which may include providing services to third
parties, among
other things; and (b) to incorporate the Original IP, in object
code format
only, in larger programs and systems of Licensee (the "Licensee
Programs") which
Licensee then may commercially market, license and sell copies of
in object code
form only for its own profit; all in accordance and subject to the
limitations,
terms and conditions set forth below. Such license shall be
exclusive from the
date hereof through December 31, 2006, except for the rights of
Licensor as set
forth in Section 4 below (as to which it shall be non-exclusive);
thereafter,
the entire license granted to Licensee hereunder shall be
non-exclusive.
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(b) Licensee may freely sublicense its rights hereunder,
provided that
Licensee remains the owner of the "master" license hereunder.
Licensee shall not
transfer or assign the "master" license hereunder (except to
Amiram, or to an
entity majority owned or controlled by Amiram) other than in
connection with an
Acquisition (defined below), in which case Licensor shall be
entitled to
receive, as and when the Licensee receives the consideration
therefor, five
percent (5%) of the Net Proceeds of the Acquisition, in kind
(meaning in the
same proportion of cash and other items as constitutes the Net
Proceeds). As
used herein, "Net Proceeds" shall mean the gross proceeds of the
Acquisition,
less any commissions or brokerage fees and professional fees
(attorneys,
accountants, appraisers, etc.) payable by Licensee in connection
therewith. As
used herein, "Acquisition" shall mean the acquisition by a third
party or
parties unaffiliated with Licensee of either (i) all or a
substantial portion of
the Original IP as currently existing or as modified hereafter, not
in the
ordinary course of business, and in connection with the agreement
of Amiram to
cease his involvement in the business of Licensee to any extent;
(ii) a majority
of Licensee's operating assets; or (iii) a majority of Licensee's
voting stock
(or the equivalent thereof). "Acquisition" shall also include a
transaction in
which Licensee merges with a third party or parties unaffiliated
with Licensee
including any other transaction similar thereto. This contingent
right to
receive said five percent of any Acquisition shall be
non-transferable and shall
not (except as exists as of the date hereof) be assigned,
encumbered or
hypothecated, and shall be permanently canceled and shall become
null and void
in the event of a Bankruptcy Event (as defined in Section 2 hereof)
on the part
of Licensor.
2. Term and Termination; Bankruptcy. (a) The term of this Agreement
shall be
perpetual, except that the license set forth in Section 1 hereof
shall become
non-exclusive on January 1, 2007, and thereafter may be freely
licensed by
Licensor to any third party without restriction or limitation,
subject only to
Licensee's then non-exclusive license hereunder.
(b) The parties acknowledge and agree that Licensee should
enjoy, in the
event of any bankruptcy of the Licensor, the full benefit of
Section 365(n) of
Title 11, United States Code (the "Bankruptcy Code"). The parties
are entering
into this agreement and the Escrow Agreement in reliance upon said
statutory
provision. Licensor acknowledges that if Licensor or its trustee in
bankruptcy
rejects the Escrow Agreement or this Agreement under the provisions
of the
Bankruptcy Code, Licensee may elect to retain its rights under the
Escrow
Agreement and this Agreement as provided in Section 365(n) of the
Bankruptcy
Code. Neither Licensor nor such trustee in bankruptcy shall
interfere with the
rights of Licensee as provided in the Escrow Agreement and this
Agreement,
including the right to obtain the Source Code from the Escrow Agent
(as defined
in the Escrow Agreement). Correspondingly, in the event of any
Bankruptcy Event
on the part of Licensee this license shall terminate (unless this
license shall
have been assigned to a permitted assignee under Section 1(b)
hereunder, and
that assignee at that time shall not have incurred a
then-continuing Bankruptcy
Event).
(c) As used herein, the term "Bankruptcy Event" shall mean
that a party has
filed for
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protection under the bankruptcy laws of any jurisdiction, or is
involuntarily
subjected to such laws or otherwise has been adjudicated a
bankrupt, or makes an
assignment for the benefit of creditors, or voluntarily or
involuntarily becomes
the subject of any similar laws, or has a trustee or receiver
appoin
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