Software License Agreement

EXHIBIT 10.28







UNISYS CORPORATION



SOFTWARE LICENSE AGREEMENT





PHOENIX INTERNATIONAL LTD, INC.

SOFTWARE LICENSE AGREEMENT



TABLE OF CONTENTS



SECTION 1 - DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SECTION 2 - GRANT OF LICENSE; UNDERTAKING TO

PROMOTE AND MARKET . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

SECTION 3 - EXCLUSIVITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

SECTION 4 - NO COMPETING PRODUCTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

SECTION 5 - TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

SECTION 6 - PAYMENT/INVOICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

SECTION 7 - DELIVERABLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

SECTION 8 - CHANGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

SECTION 9 - SERVICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

SECTION 10 - NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

SECTION 11 - TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17



11.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

11.2 Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

11.3 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20



SECTION 12 - TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

SECTION 13 - CONFIDENTIAL INFORMATION AND DISCLOSURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

SECTION 14 - POWER AND AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

SECTION 15 - LIMITED WARRANTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

SECTION 16 - DISCLAIMER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

SECTION 17 - LIMITATION OF LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

SECTION 18 - TITLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

SECTION 19 - OTHER INTELLECTUAL PROPERTY MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

SECTION 20 - SOURCE CODE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

SECTION 21 - FORCE MAJEURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

SECTION 22 - ASSIGNMENT, ETC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

SECTION 23 - GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29



23.1 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

23.2 Captions/Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

23.3 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

23.4 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

23.5 Independent Contractors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

23.6 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

23.7 Publicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

23.8 Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

23.9 Entire Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

23.10 Notice of Delay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

23.11 Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

23.12 Access to Books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31



SECTION 24 - ADDENDA/ATTACHMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

SECTION 25 - SURVIVAL OF PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

SECTION 26 - ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32













ADDENDUM A PACKAGE AND DOCUMENTATION



ADDENDUM B SCHEDULE FOR ROYALTIES AND PARTICIPATION FEES



ADDENDUM C TERRITORY



ADDENDUM D THIRD-PARTY MATERIALS



ADDENDUM E EXCEPTIONS TO EXCLUSIVITY



ADDENDUM F TRAINING OBJECTIVES



ADDENDUM G DESCRIPTION OF SUPPORT/MAINTENANCE















SOFTWARE LICENSE AGREEMENT





This Agreement is entered into as of this _________ day of _____________, 19__ (hereinafter the "Effective Date") by and between Unisys Corporation (hereinafter referred to as "Unisys"), with offices at 7700 West Camino Real, Boca Raton, Florida 33433-5543; and Phoenix International Ltd, Inc. (hereinafter referred to as "Phoenix"), with offices at 900 Winderley Place, Suite 140, Maitland, Florida 32751.





WITNESSETH THAT:





WHEREAS, Phoenix owns or (subject to Section 18.1 below) has the right to license computer software programs and the documentation related thereto; and



WHEREAS, Unisys desires to obtain certain rights, as hereinafter described, in said programs and their related documentation; and



WHEREAS, Phoenix is willing to grant said rights to said programs and their related documentation to Unisys;



NOW THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto, intending to be legally bound by the provisions hereof, hereby agree as follows:





SECTION 1 - DEFINITIONS



Words shall have their normally accepted meanings as employed in this Agreement. The terms "herein" and "hereof", unless specifically limited, shall have reference to the entire Agreement. The word "shall" is mandatory, the word "may" is permissive, and the words "includes" and "including" are not limiting. The following terms shall have the described meaning:



1.1 "Affiliate" shall mean any corporation, partnership or other entity

that is in or under the direct or indirect control of or with a party

(but only so long as it remains under the direct or indirect control

of such party), and "control" shall exist whenever there is an

ownership, profits, voting or similar interest representing at least

50% of the total interests of the pertinent entity then outstanding.



1.2 "Changes" shall mean (1) localizations, translations (including

Portuguese translations, if and when produced), nationalizations for

foreign countries with respect to a referenced work (i.e., Package or

Documentation, as applicable), (2) revisions to a referenced work

(i.e., Package













or Documentation, as applicable), including Corrections, Enhancements,

Improvements, Updates or Upgrades, and (3) any other derivative work

or collective work which, in whole or in part, is based upon or

contains the referenced work (i.e., Package or Documentation, as

applicable).



1.3 "Confidential Information" shall mean any competitively sensitive or

secret business, marketing or technical information of a Disclosing

Party. (References to the "Disclosing Party" and the "Recipient" are

defined in Section 13). The Disclosing Party shall take reasonable

steps to call the Recipient's attention to the confidentiality of its

Confidential Information at the time of disclosure, including by

legending as "Confidential" documentation and media containing

Confidential Information, and summarizing in writing oral disclosures

of Confidential Information so the summaries are provided following

disclosure as evidence of the Confidential Information that has been

imparted. In all cases, however, Phoenix's Confidential Information

shall include the Package (in Object Code and Source Code form) and

Documentation, including all Changes. Confidential Information shall

not include, however, information which (i) is generally known to the

public or readily ascertainable from public sources (other than as a

result of a breach of confidentiality by the Recipient or any person

or entity associated with the Recipient), (ii) is independently

developed without reference to or reliance on any Confidential

Information of the Disclosing Party, as demonstrated by written

records in the Recipient's possession (which shall be provided to the

Disclosing Party at the Disclosing Party's request), or (iii) is

obtained from an independent third party who created or acquired such

information without reference to or reliance on Confidential

Information of the Disclosing Party, as demonstrated by written

records in the Recipient's possession (which shall be provided to the

Disclosing Party at the Disclosing Party's request).



1.4 "Conversion" shall mean conversion and formatting of an End User's

existing data for use with the Package.



1.5 "Correction" shall mean a change made in the Package to correct errors

or defects in the Package or to make the Package conform to Phoenix's

then current technical specifications.



1.6 "Documentation" shall mean the technical and operating documentation

relating to the Package provided to Unisys by Phoenix for purposes of

this Agreement. References to the Documentation include all Changes

provided to Unisys by Phoenix or provided to End Users by Unisys or

otherwise made or obtained by or for Unisys or any End Users.













1.7 "End User" shall mean a banking, lending or finance company organized

and doing business primarily in the Territory who has executed a

License Agreement.



1.8 "Equipment" shall mean equipment (as will be mutually identified, but

initially to be 4 personal computers) required by Phoenix to support

Unisys' designated platform (exclusive of Hewlett-Packard equipment),

plus any further components or devices reasonably requested by Phoenix

in the future to support Upgrades.



1.9 "Enhancement" shall mean a new function or feature for any portion of

the Package which provides a new capability which the previous

releases or versions of the Package did not have and which may be

incorporated into the Package by modification to the then existing

programs or by development of new programs.



1.10 "Foreign Branches" shall mean banking, lending or finance companies

which operate in the Territory but are owned or controlled by banks

which have headquarters or principal operations outside the Territory.



1.11 "Gross Proceeds" shall mean all payments made by an End User in the

nature of license or branch fees, and support or maintenance fees

(regardless of whether so denominated). For purposes of calculating

royalties and participations due Phoenix based on Gross Proceeds from

any source, such payments shall be reduced by (a) excise, property,

VAT, sales, use and other similar taxes collected from an End User and

paid by Unisys (or, as applicable, an Affiliate, subcontractor, agent

or distributor acting under Unisys' authority to the extent permitted

under Section 22 hereof), and (b) customs, import or export, duties,

levies, tariffs, or other similar charges imposed by any jurisdiction

outside the United States of America incurred by Unisys (or, as

applicable, an Affiliate, subcontractor, agent or distributor acting

under Unisys' authority to the extent permitted under Section 22

hereof) for the licenses, deliveries or services to which such fees

relate, all of which shall be the sole responsibility of Unisys or the

applicable End User.



1.12 "Hold-Out Accounts" shall mean the existing and prospective customers

listed in Part III of Appendix E hereto. If a Hold-Out Account is

referred by Phoenix to Unisys in accordance with Section 3.2 hereof,

then the Hold-Out Account shall become a Pre-Qualified End User.



1.13 "Improvement" shall mean an addition or change to any portion of the

Package which is intended to or which does improve the performance of

the Package or any portion thereof or which is a replacement for any

such portion.













1.14 "License Agreement" shall mean an agreement directly between an End

User and Unisys (or an Affiliate, subcontractor, agent or distributor

acting under Unisys' authority to the extent permitted under Section

22 hereof) containing terms and conditions acceptable to Phoenix for

the sublicense and use of the Package by such End User. Phoenix and

Unisys shall periodically agree on the standard form of the License

Agreement. The License Agreement shall provide that Unisys has sole

authority for establishing and collecting fees and charges thereunder

and shall provide that Unisys has sole responsibility for providing

Support Services, except for those limited functions for which Phoenix

agrees to be responsible hereunder. The License Agreement shall in

all cases contain provisions acceptable to Phoenix regarding

confidentiality, ownership by Phoenix and protection of all applicable

intellectual property rights, limitation of liability, and provisions

permitting the End User to use the Package only for its own internal

banking, lending and finance operations (the "Essential Provisions").

The License Agreement shall also specify, as a further Essential

Provision, unless Unisys concludes on a case-by-case basis that such

provision is not permitted by laws governing the License Agreement

(and it so advises Phoenix prior to executing the applicable License

Agreement), that the End User's right to possess and use the Package

and Documentation shall automatically cease if the End User ceases to

obtain or pay for Support Services from a provider thereof authorized

by Phoenix. The License Agreement may provide for a sale, lease, or

other transaction between Unisys and each applicable End User, so long

as the Essential Provisions are applicable and effective. References

herein to the sale, lease, or sublicense of the Package or

Documentation shall be collectively construed to mean the transaction

effected by the License Agreement, including such Essential

Provisions. Unisys shall obtain Phoenix's written consent before

including terms in the License Agreement which permit use of the

Package and Documentation by branches and affiliates of an End User

located outside the Territory.



1.15 "Object Code" shall mean the machine executable form of the Package

which results from the compilation and/or assembly of Source Code.



1.16 "Offshore Banks" shall mean banking, lending or finance companies

doing business primarily in English and U.S. dollars, typically

chartered under the laws of a country different from the country where

accounts originate, and having a general purpose of permitting

deposits to be held or invested outside the country where the accounts



1.17 "Package" shall mean the most current version of Phoenix's Retail

Banking System, as described more specifically in Addendum A hereto.

Except for provisions regarding title, confidentiality, ownership

rights, or protection of applicable











XXX = Confidential Treatment Requested



intellectual property, and unless otherwise expressly stated herein,

references to the Package shall include only the Object Code (machine

readable) version of the Package. References to the Package include

all Changes provided by Phoenix to Unisys pursuant to Sections 8 or 9

hereof (subject to the fees or other charges that apply for such

Changes, as stated in such provisions), or provided by Unisys to End

Users, or otherwise made or obtained by or for Unisys or any End



1.18 "Personnel" shall mean individuals who are employees of the referenced

party or its Affiliates or are under contract to provide services

under the direction and control of the referenced party or its

Affiliates which services are of a kind which are generally performed

by employees of the referenced party or its Affiliates. Professional

consultants and individuals engaged to perform design or development

services for the benefit of any person or entity other than the

referenced party and its Affiliates (including services performed for

such individuals' own account) are not included as Personnel.



1.19 "Pre-Qualified End Users" shall mean the prospective End Users

identified in Part II of Addendum E hereto.



1.20 "SFB Product" means (1) the mainframe-based software owned by Unisys

and licensed by Unisys in the Territory on the Effective Date,

including any future version of that software so long as it continues

to be specifically mainframe-based (as opposed to a distributed

application system, or client-server system) and contains

substantially the code and provides substantially the features present

in the SFB Product as it exists on the Effective Date, and (2) with

respect to Section 4.2(2) only, which applies in cases where XXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXX may be provided by Unisys to XXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX, and Section 4.2(5) only, which applies to certain

excepted customers where significant prior marketing efforts are

already completed, XXXXXXXXXXXXXXX of such software owned and licensed

by Unisys.



1.21 "Source Code" shall mean the version of the Package in symbolic

programming language(s) employed by Phoenix to develop the Package

which when compiled and/or assembled is transformed into an Object

Code form of the Package.



1.22 "Support Agreement" shall mean each agreement between Unisys (or any

Affiliate, subcontractor, agent or distributor acting under Unisys'

authority to the extent permitted under Section 22 hereof) and an End

User providing for the delivery of Support Services.



1.23 "Support Services" shall mean the services that Unisys (or an

Affiliate, subcontractor, agent or distributor acting under Unisys'

authority to the extent permitted under Section 22













hereof) is authorized to provide in support of an End User's use of

the Package and Documentation under the terms of a License Agreement

-- for example, installation, conversion, training, hotline support,

troubleshooting, and production of customized "Changes." The Support

Services may be provided pursuant to a License Agreement, one or more

Support Agreements, or a combination thereof.



1.24 "Territory" shall mean the countries situated in Latin America and the

Caribbean, as identified in Addendum C.



1.25 "Update" shall mean a release of the Package subsequent to the initial

delivery in which Phoenix has incorporated (i) accumulated

Corrections, (ii) Upgrades, (iii) Improvements, or (iv) Enhancements,

together with new or revised Documentation which properly describes

the updated Package.



1.26 "Upgrade" shall mean changes (if any) made in the Package to permit

the Package to be used and to operate properly with versions of

operating system that are marketed by Unisys and supported by Phoenix.





SECTION 2 - GRANT OF LICENSE; UNDERTAKING TO PROMOTE AND MARKET



2.1 Phoenix hereby grants to Unisys, and Unisys accepts from Phoenix,

under all of Phoenix's USA and foreign patents and copyrights, as well

as any know-how or trade secrets related to the Package and

Documentation, a right and license within the Territory to:



1. Demonstrate and promote the Package to prospective End Users

pursuant to the terms herein. The Package and Documentation

may not be provided to any prospective End User except

pursuant to a License Agreement, provided that limited copies

of the Package and Documentation may, as necessary, be

provided to prospective End Users for evaluation or trial use

pursuant to a form of agreement containing provisions for

confidentiality, ownership and protection of intellectual

property rights, limitation of liability, restrictions on use,

and provisions for term and termination which are acceptable

to Phoenix. Unisys may engage and use subcontractors, agents

or distributors to assist with promotion and marketing of the

Package to prospective End Users, subject to Section 22.2



2. Grant End Users sublicenses to the Package and Documentation

pursuant to License Agreements. To the extent so provided in

the applicable License Agreements, such sublicenses may extend

after termination of this Agreement, notwithstanding the

limited term of this Agreement. The License Agreement may

include a Source Code option only on the terms and for the

fees which may be separately agreed to by Phoenix; except as













pursuant to such a Source Code option, the End User shall not

be permitted to receive access to or delivery of Source Code

for the Package.



3. Make Changes to the Package and Documentation, including by

use of the Source Code version of the Package provided subject

to Section 22 hereof, for the sole purpose of providing such

Changes as part of the Package and Documentation to End Users

pursuant to a License Agreement.



4. Contract with End Users for Support Services to be provided by

Unisys to the extent so provided herein.



5. Make copies of the Package and Documentation as necessary to

give effect to the foregoing Items (1) through (4).



6. Authorize one or more Affiliates (so long as they remain

Affiliates) to do one or more of the foregoing Items (1)

through (5), subject to Section 20.3 hereof.



2.2 Except as otherwise expressly stated in this Agreement, the right and

license granted to Unisys is limited to the term and shall cease upon

termination of this Agreement.



2.3 Unisys agrees to devote its reasonable efforts to promote and market

the Package to End Users in the Territory during the term of this

Agreement, and to devote a reasonable level of management and

resources to the promotion, marketing and support of the Package.

Unisys agrees to provide Phoenix at least once each year with

information regarding its marketing plans and forecasts; such plans

and forecasts shall be non-binding and subject to change, and may be

delivered formally or informally, and orally or in writing, but shall

be sufficient to demonstrate that the effort and resources being

devoted by Unisys.





SECTION 3 - EXCLUSIVITY



3.1 Subject to Section 3.2, the right and license granted to Unisys

pursuant to Section 2 to market and sublicense the Package to End

Users and to provide Support Services to End Users shall be exclusive

in all countries in the Territory during the term of this Agreement.

Such exclusivity is contin ...