Exhibit
10.1







LICENSE
AGREEMENT




This
Agreement is entered into on April 30, 2008, by and between Sybase Inc., a
Delaware corporation, with offices at 1 Sybase Drive, Dublin, CA 94568,
(“Sybase”), and ANTs software inc., a Delaware corporation, with offices at 700
Airport Blvd., Suite 300, Burlingame, CA 94010, (“Ants”). Sybase and Ants are
referred to collectively herein as the “Parties.”




WHEREAS,
Sybase desires for Ants to grant to Sybase a non-exclusive license to certain
Ants proprietary software and a sublicense to certain third party
software;




WHEREAS,
Ants desires to grant such licenses to Sybase in return for the consideration
described herein.




NOW,
THEREFORE, in consideration of the premises and the mutual promises herein made,
and in consideration of the representations, warranties, and covenants herein
contained, the Parties agree as follows.




1.           Definitions.




1.1          “Ants Software” means
the proprietary Ants software described in Exhibit A
(Software), in object code and source code form (in all versions, languages and
platforms), that is licensed to Sybase under the terms of this Agreement;
however such term does not include any customer specific code that is identified
in Exhibit A
(Software) as “Excluded Software”.




1.2          “Basis” means any past
or present fact, situation, circumstance, status, condition, activity, practice,
plan, occurrence, event, incident, action, failure to act, or transaction that
forms or could form the basis for any specified consequence.




1.3          “Delivery” has the
meaning set forth in Section 5 (Delivery).




1.4          “Disclosure Schedule”
has the meaning set forth in Section 3 (Representations and Warranties of
Ants).




1.5           “Documentation” means
any technical, engineering, development, support and end use documents, manuals
and materials relating to the Software as described in Exhibit A
(Software).




1.6           “Intellectual
Property” means any present or future right to exclude, granted under
federal, state or foreign law, which right is currently available to Ants by
ownership, license or otherwise or that becomes available to Ants by ownership,
license or otherwise in the future, including but not limited to:  (a)
all inventions (whether patentable or unpatentable, whether or not a patent
application has been filed prior to the execution of this Agreement, and whether
or not reduced to practice), all improvements thereto, and all patents,
published or unpublished non-provisional and provisional patent applications,
and invention disclosures or other records of invention, together with all
reissuances, revivals, continuations, continuations-in-part, revisions,
extensions, and reexaminations thereof regardless of country or formal name, (b)
all copyrights and all applications, registrations, and renewals in connection
therewith including all rights of authorship, use, publication, reproduction,
distribution, performance, display, transformation, moral rights and rights of
ownership of copyrightable works, (c) all mask work rights and semiconductor
topography, and all applications, registrations, and renewals in connection
therewith, (d) all trade secrets and confidential business information
(including ideas, research and development, know-how, formulas, compositions,
manufacturing and production processes and techniques, technical data, designs,
drawings, specifications and processes), and (e) all other intangible
proprietary rights (whether or not appropriate steps have been taken to protect
such rights under applicable law).


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1.7           “Knowledge” means
actual knowledge or knowledge which is obtainable by the exercise of
commercially reasonable care.




1.8           “Liability” means any
liability (whether known or unknown, whether asserted or unasserted, whether
absolute or contingent, whether accrued or unaccrued, whether liquidated or
unliquidated, and whether due or to become due).




1.9           “License Fee” has the
meaning set forth in Section 2.7 (Consideration).




1.10           “Party” has the
meaning set forth in the preface above.




1.11           “Person” means an
individual, a partnership, a corporation, an association, a joint stock company,
a trust, a joint venture, an unincorporated organization, or a governmental
entity (or any department, agency, or political subdivision
thereof).




1.12           “Software” means the
collective term for the Ants Software, Third Party Software and
Documentation.




1.13           “Security Interest”
means any mortgage, pledge, lien, encumbrance, charge, or other security
interest.




1.14           “Third Party Software”
means software licensed by Ants from third parties and described in Exhibit A
(Software) that is sublicensed to Sybase under the terms of this
Agreement.  Third Party Software shall not include any software
licensed by Ants from third parties which is listed on the Disclosure Schedule
(Exhibit C).  The software listed is all third party software and
related materials necessary for Sybase to be able to exercise its rights under
this Agreement, including but not limited to the ability to modify, build,
develop, compile, install and use the Ants Software.




2.           Transaction.




2.1          License
Grant.  Ants hereby grants to Sybase, for the consideration
specified in Section 2.7 (Consideration), a fully-transferable, perpetual,
irrevocable, worldwide, paid-up, royalty-free, non-exclusive license under Ants’
Intellectual Property (i) to reproduce, modify, distribute, perform,
display, make, have made, use, sell, offer to sell, import, export, lease or
otherwise make use of or exploit the Ants Software through any means or medium
or in any way currently known or unknown, for any purpose, and (ii) the
further right to sublicense some or all of the foregoing rights through multiple
tiers of sublicenses.


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2.2          Sublicense to Third Party
Software.  In addition, Ants hereby grants to Sybase, for the
consideration specified in Section 2.7 (Consideration), a
fully-transferable, perpetual, irrevocable, worldwide, paid-up, royalty-free,
non-exclusive license under Ants’ Intellectual Property (i) to reproduce,
modify, distribute, perform, display, make, have made, use, sell, offer to sell,
import, export, lease or otherwise make use of or exploit the Third Party
Software through any means or medium or in any way currently known or unknown,
for any purpose, and (ii) the further right to sublicense some or all of
the foregoing rights through multiple tiers of sublicenses.




2.3          No
Actions.  Except as to claims under Section 2.9 (Restrictions),
Ants covenants that at no time will Ants, and will insure that at no time will
Ants’ successors or assigns, or their respective successors and assigns,
directly or indirectly make any claim or commence, maintain, prosecute or
otherwise pursue any suit, action or proceeding of any kind anywhere in the
world against Sybase or its direct or indirect suppliers, vendors, customers or
distributors (of any kind), or the respective shareholders, officers, directors,
employees, agents, successors, assigns, representatives (of any kind) of the
foregoing entities, that is based upon, relates to or involves the Software, or
any Ants’ Intellectual Property related to the Software.




2.4          Ownership of
Modifications.




(a)           As
between Ants and Sybase, Sybase will be the sole and exclusive owner of any
modifications Sybase, or any third party directly or indirectly authorized by
Sybase, makes to the Software and of any product, service, system, method,
process, apparatus, improvement, device or activity that Sybase, or any third
party directly or indirectly authorized by Sybase, develops in whole or in part
based on or related to the Software (the “Sybase-Developed
Technology”).  For avoidance of doubt, Ants hereby grants Sybase a
fully-transferable, perpetual, irrevocable, worldwide, paid-up, royalty-free,
non-exclusive license under Ants’ Intellectual Property, (i) to reproduce,
modify, distribute, perform, display, make, have made, use, sell, offer to sell,
import, export, lease or otherwise make use of or exploit the Sybase-Developed
Technology through any means or medium or in any way currently known or unknown,
or for any purpose, and (ii) the further right to sublicense some or all of
the foregoing rights through multiple tiers of sublicenses.




(b)           As
between Ants and Sybase, Ants will be the sole and exclusive owner of any
modifications Ants, or any third party (other than Sybase) directly or
indirectly authorized by Ants, makes to the Software after the date of this
Agreement, and of any product, service, system, method, process, apparatus,
improvement, device or activity that Ants, or any third party (other than
Sybase) directly or indirectly authorized by Ants, develops in whole or in part
based on or related to the Software after the date of this Agreement (the
“Ants-Developed Technology”).  For avoidance of doubt, Sybase receives
no right or license hereunder concerning or relating to any Ants-Developed
Technology, and the provisions of Sections 2.1, 2.2, and 2.5 hereof do not apply
to any Ants-Developed Technology.


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2.5          Owner Equivalent
Rights.  The parties understand and agree that the intent of
the foregoing provisions in this Section 2 (Transaction) is to allow Sybase
to fully exploit the Software, (except as set forth in Section 2.9
(“Restrictions”)) and Sybase-Developed Technology in any manner and for any
purpose, as if Sybase were the owner of such Software (and in acknowledgement
that Sybase is the owner of the Sybase-Developed Technology) and all related
intellectual property rights, without limitation of any kind.




2.6          Assumption of
Liabilities.  Based on the licenses granted hereunder, neither
party to the Agreement will assume or have any responsibility with respect to
any obligations or Liability of the other.




2.7          Consideration.  Sybase
agrees to pay to Ants, upon Delivery, one million four hundred thousand dollars
($1,400,000) (the “License Fee”) by delivery of cash payable by wire transfer or
delivery of other immediately available funds.




[ redacted
]




3.           Representations and
Warranties of Ants.  Ants represents and warrants to Sybase
that the statements contained in this Section 3 are correct and complete as
of the date of this Agreement, except as set forth in the disclosure schedule
accompanying this Agreement and marked as Exhibit C and initialed by the Parties
(the “Disclosure Schedule”). The Disclosure Schedule will be arranged in
paragraphs corresponding to the numbered paragraphs contained in this
Section 3.




3.1          Software.  Ants
represents and warrants that the Software conforms in all material respects with
any specification, documentation, written performance standard, representation
or statement provided with respect thereto by or on behalf of Ants.




3.2          Organization of
Ants.  Ants is a corporation duly organized, validly existing,
and in good standing under the laws of the jurisdiction of its
incorporation.




3.3          Authorization of
Transaction.  Ants has full power and authority (including full
corporate power and authority) to execute and deliver this Agreement and to
perform its obligations hereunder. Without limiting the generality of the
foregoing, the CEO and board of directors of Ants have duly authorized the
execution, delivery, and performance of this Agreement by Ants. This Agreement
constitutes the valid and legally binding obligation of Ants, enforceable in
accordance with its terms and conditions.


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3.4          Noncontravention.  Neither
the execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby (including the grant of the licenses described
in Section 2 (Transaction)), will (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which Ants is
subject or any provision of the charter or bylaws of any of Ants or (ii)
conflict with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which Ants is a party or by which it is
bound or to which the Ants Software or Third Party Software is subject (or
result in the imposition of any Security Interest upon the Ants Software or
Third Party Software).  Ants does not need to give any notice to, make
any filing with, or obtain any authorization, consent, or approval of any
government or governmental agency in order for the Parties to consummate the
transactions contemplated by this Agreement.




3.5          Good Title and/or Valid
License to Software.  Ants has good and marketable title to all
of the Ants Software and related Intellectual Property, free and clear of any
Security Interest or restriction on licensing and has valid licenses to all
Third Party Software such that Ants is permitted to grant the sublicenses
granted by Ants to Sybase under the terms of this Agreement.  No
current or former officer, director, stockholder, employee, consultant or
independent contractor has any right, claim or interest in or with respect to
the Ants Software or any Intellectual Property therein.




3.6          Undisclosed
Liabilities.  Ants does not have any Liability (and there is no
Basis for any present or future action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand against any of them giving
rise to any Liability), that affects the ownership of the Ants
Software.




3.7          Intellectual
Property.




(i)           Ants
owns or has the right to use pursuant to license, sublicense, agreement, or
permission all Intellectual Property necessary for Ants to grant the licenses
granted to Sybase under the terms of this Agreement with respect to the
Software.  Ants has taken all actions necessary to maintain and
protect each element of Intellectual Property related to the Ants
Software.  All maintenance and annual fees have been fully paid and
all fees paid during prosecution and after issuance of any patent comprising or
relating to such item have been paid in the correct entity status
amounts.




(ii)           The
Ants Software does not interfere with and has not interfered with, infringed
upon, misappropriated, or otherwise come into conflict with any intellectual
property rights of third parties, and Ants has not ever received any charge,
complaint, claim, demand, or notice alleging any such interference,
infringement, misappropriation, or violation based on or related to the Ants
Software (including any claim that Ants must license or refrain from using any
intellectual property rights of any third party). With respect to the Ants
Software, (a) the Ants Software is not subject to any outstanding injunction,
judgment, order, decree, ruling or charge and (b) no action, suit, proceeding,
hearing, investigation, charge, complaint, claim or demand is pending or is
threatened which challenges the legality, validity, enforceability, use or
ownership of the Ants Software. There is no proceeding pending or threatened,
nor has any claim or demand been made that challenges the legality, validity,
enforceability or ownership of any item of Ants’ Intellectual Property related
to the Ants Software or alleges a claim of infringement of any patents,
copyrights or violation of any trade secret or other proprietary right of any
third party. To the Knowledge of Ants and the Ants directors and officers (and
employees with responsibility for Intellectual Property matters) of Ants, no
third party has disclosed, interfered with, infringed upon, made unauthorized
use, misappropriated, or otherwise come into conflict with any Intellectual
Property rights of Ants with respect to the Ants Software. Ants has not brought
a proceeding alleging infringement of any Ants’ Intellectual Property related to
the Ants Software or breach of any license or agreement involving Ants’
Intellectual Property related to the Ants Software against any third
party.  Ants represents and warrants that the software code referenced
in Section 3.7(ii) of the Disclosure Schedule, which is the subject of the
dispute between Ants and its former employee, is not included in the current
generally available version of the the Ants Data Server product and will not be
delivered to Sybase as part of the Software.


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(iii)           Section 3.7(iii)
of the Disclosure Schedule identifies each patent or copyright registration
which has been issued to Ants with respect to the Ants Software and identifies
each pending patent application or application for copyright registration which
Ants has made with respect to the Ants Software. Ants has delivered to Sybase
correct and complete copies of all such patents, copyright registrations, and
applications.  With respect to each item of Intellectual Property
required to be identified in Section 3.7(iii) of the Disclosure Schedule,
Ants  possesses all right, title, and interest in and to the item,
free and clear of any Security Interest, license, or other
restriction.




(iv)           Section 3.7(iv)
of the Disclosure Schedule identifies each third party software program and
related intellectual property applicable to the Ants Software or necessary for
modification, building, development, compilation, installation or use of the
Ants Software that any third party owns and that Ants uses pursuant to license,
sublicense, agreement, or permission. Ants has delivered to Sybase correct and
complete copies of all such licenses, sublicenses, agreements, and permissions
(as amended to date). With respect to each software program and related
intellectual property required to be identified in Section 3.7(iv) of the
Disclosure Schedule:




(A)           the
license, sublicense, agreement, or permission covering the software program and
related intellectual property is legal, valid, binding, enforceable, and in full
force and effect;




(B)           the
license, sublicense, agreement, or permission will continue to be legal, valid,
binding, enforceable, and in full force and effect on identical terms following
the consummation of the transactions contemplated hereby and is irrevocable and
perpetual and will remain in effect for the duration of Sybase’s exercise of the
sublicenses granted by Ants to Sybase hereunder with respect to all Third Party
Software;




(C)           to
the Knowledge of Ants, the directors, officers and employees of Ants, no party
to the license, sublicense, agreement, or permission is in breach or default,
and no event has occurred which with notice or lapse of time would constitute a
breach or default or permit termination, modification, or acceleration
thereunder;


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(D)           in
the case of any termination by the third party of Ants’ rights under such
license, sublicense, agreement or permission, the sublicenses granted by Ants to
Sybase hereunder will remain in full force and effect in accordance with the
terms of such license, sublicense, agreement or permission;




(E)           to
the Knowledge of Ants, the directors, officers and employees of Ants, no party
to the license, sublicense, agreement, or permission has repudiated any
provision thereof;




(F)           to
the Knowledge of Ants, the directors, officers and employees of Ants, the
underlying software program and related intellectual property is not subject to
any outstanding injunction, judgment, order, decree, ruling, or
charge;




(G)           to
the Knowledge of Ants, the directors, officers and employees of Ants, no action,
suit, proceeding, hearing, investigation, charge, complaint, claim, or demand is
pending or is threatened which challenges the legality, validity, or
enforceability of the underlying software program and related intellectual
property; and




(H)           Ants
understands and agrees that Sybase is relying on the specific terms of the Third
Party Software licenses that Ants has in place as of the date of this Agreement
and that Ants has made representations and warranties to Sybase in this Section
3 based on such terms and therefore Ants agrees not to amend, terminate or waive
any rights under such licenses without Sybase’s prior written
consent.




(v)           To
the Knowledge of Ants and the directors and officers (and employees with
responsibility for Intellectual Property matters) of Ants, the Software will not
interfere with, infringe upon, misappropriate, or otherwise come into conflict
with, any intellectual property rights of third parties as a result of the
licenses granted to Sybase by Ants under the terms of this
Agreement.




(vi)           All
current and former employees of Ants who developed any portion of the Ants
Software have executed and delivered to Ants an agreement (containing no
exceptions or exclusions from the scope of its coverage) regarding the
protection of proprietary information and the assignment to Ants of any
Intellectual Property arising from services performed for Ants by such persons,
the form of which has been supplied to Sybase. All current and former
consultants and independent contractors to Ants involved in the development,
modification of the Ants Software and/or related Intellectual Property have
executed and delivered to Ants an agreement in the form provided to Sybase
(containing no exceptions or exclusions from the scope of its coverage)
regarding the protection of proprietary information and the assignment to Ants
of any Intellectual Property arising from services performed for Ants by such
persons. Copies of the agreements between Ants and each employee or consultant
who developed any portion of the Ants Software have been provided by Ants to
Sybase.


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(vii)           Ants
has taken all commercially reasonable and customary measures and precautions
necessary to protect and maintain the confidentiality of the source code to the
Ants Software.




(viii)          A
complete list of the files for the Ants Software, together with a brief
description, is set forth in Section 3.7(viii) of the Disclosure
Schedule.




(ix)           No
Public Software (as defined below) forms part of the Software or related
Intellectual Property, and no Public Software was or is used in connection with
the development of the Software or related Intellectual Property or is
incorporated into, in whole or in part, or has been distributed with, in whole
or in part, any Software or related Intellectual Property. As used in this
Agreement, “Public Software” means any software that contains, or is derived in
any manner (in whole or in part) from, any software that is distributed as free
software (as defined by the Free Software Foundation), open source software
(e.g., Linux or software distributed under any license approved by the Open
Source Initiative as set forth www.opensource.org) or similar licensing or
distribution models which requires the distribution of source code to licensees,
including software licensed or distributed under any of the following licenses
or distribution models, or licenses or distribution models similar to any of the
following: (i) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL);
(ii) the Artistic License (e.g., PERL); (iii) the Mozilla Public License; (iv)
the Netscape Public License; (v) the Sun Community Source License (SCSL); (vi)
the Sun Industry Standards License (SISL); (vii) the BSD License; or (viii) the
Apache License.








3.10           Ants
Nonsolicitation.  Ants agrees that for a one (1) year period
from the date of this Agreement, Ants will not solicit for employment any
then-current employees of Sybase, Inc. or its Affiliates (defined below). [
redacted ] Personnel hired in response to Ants’ usual and customary public
advertising procedures will not be deemed to be a solicitation for employment
otherwise prohibited hereunder.


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3.11           Disclosure.  The
representations and warranties contained in this Section 3 do not contain
any untrue statement of any fact or omit to state any fact necessary in order to
make the statements and information contained in this Section 3 not
misleading.




4.           Representations and
Warranties of Sybase.  Sybase represents and warrants to Ants
that the statements contained in this Section 4 are correct and complete as
of the date of this Agreement, except as set forth in the Disclosure Schedule.
The Disclosure Schedule will be arranged in paragraphs corresponding to the
numbered paragraphs contained in this Section 4.




4.1          Organization of
Sybase.  Sybase is a corporation duly organized, validly
existing, and in good standing under the laws of the jurisdiction of its
incorporation.




4.2          Authorization of
Transaction.  Sybase has full power and authority (including
full corporate power and authority) to execute and deliver this Agreement and to
perform its obligations hereunder. This Agreement constitutes the valid and
legally binding obligation of Sybase, enforceable in accordance with its terms
and conditions.




4.3          Noncontravention.  Neither
the execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby will violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which Sybase is
subject or any provision of its charter or bylaws. Sybase does not need to give
any notice to, make any filing with, or obtain any authorization, consent, or
approval of any government or governmental agency in order for the Parties to
consummate the transactions contemplated by this Agreement.




4.4          Sybase
Nonsolicitation.  [ redacted ] Sybase agrees that for a one (1) year
period from the date of this Agreement, Sybase will not solicit for employment
any then-current employees of Ants or those consultants of Ants that will be
listed in Exhibit C, Section 3.7 (vi), at the time this Agreement is executed.
Personnel hired in response to Sybase’s usual and customary public advertising
procedures will not be deemed to be a solicitation for employment otherwise
prohibited hereunder.




5.           Delivery.
Within five (5) business days after execution of this Agreement, Ants shall
deliver the Software to Sybase as specified in Exhibit A
(Delivery).  Sybase shall have thirty (30) calendar days following
Delivery in which to confirm complete delivery of the Software.  If
Sybase determines that any portion(s) of the Software are incomplete or missing,
it will so notify Ants within such thirty (30) calendar day
period.  Ants shall promptly, but within no more than five (5)
business days after receipt of notice, deliver the incomplete or missing
portions of the Software to Sybase.  If Ants fails to deliver any
missing or incomplete Software to Sybase in accordance with this Section 5,
Sybase may return the Software to Ants and terminate this
Agreement.  Upon termination, Ants shall return to Sybase any amounts
paid in accordance with Section 2.7 (Consideration).


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6.           Confidentiality.  The
parties have previously entered into a Mutual Non-Disclosure Agreement,
effective August 30, 2007 (“NDA”).  Such NDA will govern the
Parties with respect to the activities covered by this Agreement and will
survive any termination of this Agreement in accordance with its
terms.




7.           Indemnification.




7.1          Ants
shall defend, indemnify and hold harmless Sybase, its Affiliates (defined
below),  its distributors, and end users, and the officers, directors,
agents, employees of the foregoing (the “Indemnified Parties”) from and against
any suit, claim, loss, damage or cost arising from any claim that the Software
infringes, misappropriates or violates any intellectual property rights of a
third party.  The following procedures shall apply:  (a)
Ants shall have sole control of the defense and/or settlement (except that no
judgment may be entered against an Indemnified Party, or any affirmative
obligation imposed on or admission of wrongdoing made as to an Indemnified
Party, as part of a settlement without the Indemnified Party’s prior written
consent); (b) the Indemnified Party must notify Ants promptly in writing of such
claim or suit and give Ants all information known to it relating thereto, and
(c) the Indemnified Party must reasonably cooperate with Ants in the settlement
and/or defense.  The Indemnified Party shall be reimbursed for all
reasonable out-of-pocket expenses incurred in providing any cooperation
requested by Ants.  The Indemnified Party may participate in the
defense at its own expense.  If all or any part of the Software is, or
in the opinion of Ants may become, the subject of any claim or suit for
infringement of any intellectual property rights of a third party, Ants may, and
in the event of any adjudication that any Software or any part thereof does
infringe or if the use of the Software or any part thereof is enjoined, Ants
shall, at its expense, do one of the following:  (1) procure for the
Indemnified Parties the right to use and distribute the Software or the affected
part thereof; (2) replace the Software or affected part with a non-infringing
Software; (3) modify the Software or affected part to make it non-infringing; or
(4) if none of the foregoing remedies are commercially feasible within three (3)
months of the assertion of the claim of infringement, refund the aggregate
payments paid by Sybase for the Software.




8.           Termination.




8.1           Termination of
Agreement.  Sybase may terminate this Agreement in accordance
with the terms of Section 5 (Delivery) [ redacted ]




8.2           Effect of
Termination.  If Sybase terminates this Agreement pursuant to
Section 8.1 (Termination of Agreement), all rights and obligations of the
Parties hereunder shall terminate without any Liability of any Party to any
other Party (except for any liability of any Party then in breach; provided that Ants’
liability  in the event of termination for failure to deliver shall
not exceed the License Fee), subject to the survival of any terms specified
herein to survive.


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9.           Miscellaneous.




9.1           Survival of Representations
and Warranties.  All of the representations and warranties of
the Parties contained in this Agreement shall survive after the date of this
Agreement.








9.4           No Third-Party
Beneficiaries.  This Agreement shall not confer any rights or
remedies upon any Person other than the Parties and their respective successors
and permitted assigns.




9.5           Entire
Agreement.  This Agreement (including the documents referred to
herein) constitutes the entire agreement between the Parties and supersedes any
prior understandings, agreements, or representations by or between the Parties,
written or oral, to the extent they related in any way to the subject matter
hereof.




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9.6           Succession and
Assignment.  This Agreement shall be binding upon and inure to
the benefit of the Parties named herein and their respective successors and
permitted assigns. No Party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other Party; provided, however,
that either party may (i) assign this Agreement or any or all of its rights and
interests hereunder to one or more of its Affiliates, (ii) designate one or
more of its Affiliates to perform its obligations hereunder (in any or all of
which cases such party nonetheless shall remain responsible for the performance
of all of its obligations hereunder) or (iii) assign this Agreement in the case
of a merger, acquisition or sale of assets.  “Affiliate” means an
entity that directly or indirectly controls, is controlled by, or is under
common control with such party.  For purposes of this definition,
"control" means ownership, directly or indirectly, of more than fifty percent
(50%) of the voting shares or other equity interest in an entity, or otherwise
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of an entity, whether through the
ownership of voting securities, by contract, or otherwise.




9.7           Counterparts.  This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original but all of which together will constitute one and the same
instrument.




9.8           Headings.  The
section headings contained in this Agreement are inserted for convenience only
and shall not affect in any way the meaning or interpretation of this
Agreement.




9.9           Notices.  All
notices, requests, demands, claims, and other communications hereunder will be
in writing. Any notice, request, demand, claim, or other communication hereunder
shall be deemed duly given if (and then two business days after) it is sent by
registered or certified mail, return receipt requested, postage prepaid, and
addressed to the intended recipient as set forth below:




If to
Ants:




Ants
Software Inc.


700
Airport Blvd., Suite 300


Burlingame,
CA 94010




Copy to:




The
Corporate Law Group


500
Airport Boulevard, Suite 120


Burlingame,
CA 94010


Attn:  Paul
David Marotta




If to
Sybase:




Sybase
Inc.


Attn:
CEO


1 Sybase
Drive


Dublin, CA
94568


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Copy to:




Sybase,
Inc.


Attn:
General Counsel


1 Sybase
Drive


Dublin, CA
94568





Any Party
may send any notice, request, demand, claim, or other communication hereunder to
the intended recipient at the address set forth above using any other means
(including personal delivery, expedited courier, messenger service, telecopy,
telex, ordinary mail, or electronic mail), but no such notice, request, demand,
claim, or other communication shall be deemed to have been duly given unless and
until it actually is received by the intended recipient. Any Party may change
the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other Party notice in
the manner herein set forth.




9.10           Governing
Law.  This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of California without giving
effect to any choice or conflict of law provision or rule (whether of the State
of California or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of California.




9.11           Amendments and
Waivers.  No amendment of any provision of this Agreement shall
be valid unless the same shall be in writing and signed by Sybase and Ants. No
waiver by any Party of any default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, shall be deemed to extend to any
prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of any
prior or subsequent such occurrence.




9.12           Severability.  Any
term or provision of this Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity or enforceability of
the remaining terms and provisions hereof or the validity or enforceability of
the offending term or provision in any other situation or in any other
jurisdiction.




9.13           Expenses.  Each
of Sybase and Ants will bear its own costs and expenses (including legal fees
and expenses) incurred in connection with this Agreement and the transactions
contemplated hereby.




9.14           Construction.  The
Parties have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the Parties
and no presumption or burden of proof shall arise favoring or disfavoring any
Party by virtue of the authorship of any of the provisions of this Agreement.
Any reference to any federal, state, local, or foreign statute or law shall be
deemed also to refer to all rules and regulations promulgated thereunder, unless
the context requires otherwise. The word “including” shall mean including
without limitation. Nothing in the Disclosure Schedule shall be deemed adequate
to disclose an exception to a representation or warranty made herein unless the
Disclosure Schedule identifies the exception with particularity and describes
the relevant facts in detail. Without limiting the generality of the foregoing,
the mere listing (or inclusion of a copy) of a document or other item shall not
be deemed adequate to disclose an exception to a representation or warranty made
herein (unless the representation or warranty has to do with the existence of
the document or other item itself). The Parties intend that each representation,
warranty, and covenant contained herein shall have independent significance. If
any Party has breached any representation, warranty, or covenant contained
herein in any respect, the fact that there exists another representation,
warranty, or covenant relating to the same subject matter (regardless of the
relative levels of specificity) which the Party has not breached shall not
detract from or mitigate the fact that the Party is in breach of the first
representation, warranty, or covenant.


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9.15           Incorporation of Exhibits
and Schedules.  The Exhibits identified in this Agreement are
incorporated herein by reference and made a part hereof.




9.16           Specific
Performance.  Each of the Parties acknowledges and agrees that
the other Party would be damaged irreparably in the event any of the provisions
of this Agreement are not performed in accordance with their specific terms or
otherwise are breached. Accordingly, each of the Parties agrees that the other
Party shall be entitled to an injunction or injunctions to prevent breaches of
the provisions of this Agreement and to enforce specifically this Agreement and
the terms and provisions hereof in any action instituted in any court of the
United States or any state thereof having jurisdiction over the Parties and the
matter, in addition to any other remedy to which it may be entitled, at law or
in equity.




IN WITNESS
WHEREOF, the authorized representatives of the Parties hereto have executed this
Agreement as of the date first above written.




Sybase:     /s/
            
            Ants:    /s/By:
            
            By:Print
      Name:
            
            Print
      Name:Title:
            
            Title:Date:
            
            Date:












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Exhibit
A


Software











1.
Software





The Software is comprised
of the complete Source Code version of the most recent, generally-available
release of the Ants software product known as Ants Data Server (ADS), and any
associated Documentation.  For the avoidance of doubt, and except as
otherwise set forth on the Disclosure Schedule (Exhibit C), the Software
includes all Ants Software and Third Party Software included in the ADS product
and any related software and tools required to successfully develop,
compile/build and test the Software. [ redacted ] Notwithstanding
the above, the Software does not include features found in ADS related to Oracle
PL/SQL, Informix ISQL and Microsoft Transact-SQL (also known as Microsoft T-SQL)
compatibility.







2. Format for Delivery:Immediately following execution of this Agreement, Ants will provide a
reasonable number of Sybase employees with access to Ants’ premises for the
purpose of taking possession of the Software.  The Sybase employees
may bring Sybase hardware to Ants’ premises for the purpose of installing the
Software on Sybase hardware.  Ants will provide Sybase with all access
and resources needed by the Sybase employees to enable Sybase to take possession
of the Software.







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