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EXHIBIT 10.2
PCA SHELL LICENSE AGREEMENT
dated as of August 23, 2000
by and between
LEVEL 8 SYSTEMS, INC.,
and
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
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PCA SHELL LICENSE AGREEMENT
This agreement ("Agreement"), dated as of August 23, 2000
("Effective Date"), is by and between Merrill, Lynch, Pierce, Fenner & Smith
Incorporated, a Delaware corporation having an office at Merrill Lynch World
Headquarters North Tower, World Financial Center, 250 Vesey Street, New York,
New York 10281 ("Merrill Lynch"), and Level 8 Systems, Inc., a Delaware
corporation having an office at 8000 Regency Parkway, Cary, North Carolina 27511
("Level 8").
WITNESSETH
WHEREAS, Merrill Lynch has developed and owns a software
product comprising a Seamless Application Interface Manager ("PCA Shell");
WHEREAS, Level 8 desires to license from Merrill Lynch and
Merrill Lynch desires to license to Level 8 upon the terms set out herein, the
PCA Shell; and
WHEREAS, Merrill Lynch and Level 8 are entering into a
Purchase Agreement of the same Effective Date as this Agreement relating to
their overall relationship;
NOW, THEREFORE, in consideration of the premises and mutual
covenants, agreements, representations and warranties contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, it is agreed as follows:
ARTICLE 1 - DEFINITIONS
When used in this Agreement, the capitalized terms listed in
this Article 1 shall have the following meanings:
1.1 "Affiliates" means, with respect to Merrill Lynch, (i) each
company that controls, is controlled by or is under common control with Merrill
Lynch or any Affiliate of Merrill Lynch, (ii) each company that Merrill Lynch,
directly or indirectly, owns or controls, whether beneficially, or as a trustee,
guardian or other fiduciary, 30% or more of the equity having ordinary voting
power either in the election of directors of such company or otherwise in the
selection of the management of such company, or (iii) any trust or beneficiary
of a trust of which Merrill Lynch is the sole trustee. For the purpose of this
definition, "control" of a company shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of its management or
policies, whether through the ownership of voting securities, by contract or
otherwise.
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1.2 "DOCUMENTATION" means logic diagrams, flow charts, working
papers, installation, instruction and operating manuals, and other written
materials relating to the PCA Shell and any component thereof, to the extent
reasonably required by each party to enable that party to perform its
obligations hereunder.
1.3 "INTELLECTUAL PROPERTY" means any rights available with
respect to the Technology under patent, copyright or trade secret law or any
other statutory provision or common law doctrine.
1.4 "PCA SHELL" means the so-called "PCA Shell" user
interface/infrastructure software developed by Merrill Lynch which incorporates
the inventions claimed in the Patent (as such term is hereafter defined in
Section 2.3(b)).
1.5 "SOFTWARE" means any computer software, including, but not
limited to, source code, object code, screens, user interfaces, report formats,
templates, menus, buttons and icons, and all user materials and manuals related
thereto.
1.6 "TECHNOLOGY" means, collectively, designs, formulas,
processes, algorithms, methods, techniques, ideas, know-how, research, Software,
programs, subroutines, tools, inventions, trade secrets, creations,
improvements, works of authorship and other similar materials, and all
recordings, graphs, drawings, reports, and other writings in any form whether or
not specifically listed herein, and all related technology, that are used in,
incorporated in, embodied in, or relate to the PCA Shell.
ARTICLE 2 - OWNERSHIP AND LICENSE
2.1 DELIVERY. Promptly after the Effective Date, Merrill Lynch
shall deliver to Level 8 the PCA Shell Software and Documentation.
2.2 OWNERSHIP.
(a) Merrill Lynch shall own all right, title and interest
in and to the Technology and Intellectual Property relating to the PCA Shell in
the form delivered to Level 8, and any improvements, enhancements or
modifications to the foregoing developed by Merrill Lynch. Merrill Lynch shall
also own all right, title and interest in and to the Technology and Intellectual
Property relating to the so-called "Distributed Computing Substrate"
architecture currently under development by Merrill Lynch as described in that
certain document referred to as the "Distributed Computing Substrate"
("Distributed Computing Substrate").
(b) Level 8 shall immediately and fully disclose to
Merrill Lynch any and all Technology discovered or developed by it solely, or
jointly with Merrill Lynch, and any modifications or enhancements made by Level
8 to the PCA Shell. Subject to Merrill
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Lynch's ownership rights set out in Section 2.2(a), Level 8 shall own all right,
title and interest in and to the Technology and Intellectual Property relating
to the PCA Shell discovered or developed by it solely, and any modifications or
enhancements made by Level 8 to the PCA Shell. Subject to Merrill Lynch's
ownership rights set out in Section 2.2(a), Merrill Lynch and Level 8 shall each
own an undivided one-half interest in and to the Technology and Intellectual
Property relating to the Technology discovered or developed jointly by Level 8
and Merrill Lynch, except that any patent rights relating to the Technology that
are jointly developed by Merrill Lynch and Level 8 shall be solely owned by
Merrill Lynch and Level 8 shall execute any assignments needed to give effect to
such ownership by Merrill Lynch.
2.3 MERRILL LYNCH LICENSES TO LEVEL 8. Merrill Lynch hereby grants
to Level 8, and Level 8 hereby accepts, the following royalty-free, fully paid,
nontransferable, worldwide, licenses, with the right to sublicense:
(a) a license to copy, display, use, modify and reproduce
the PCA Shell, including any improvements, enhancements or modifications thereto
developed during the term of this Agreement that Merrill Lynch, in its sole
discretion, provides to Level 8, and to distribute the PCA Shell to the public
pursuant to license agreements containing terms which are adequate to protect
the rights of Merrill Lynch in the PCA Shell; and
(b) a license to make, use, sell and offer to sell
products incorporating inventions claimed in U.S. Patent No. 5,878,258, entitled
"Seamless Application Interface Manager" (the "Patent"); and
(c) a nonexclusive license to copy, display, use, modify
and reproduce the Distributed Computing Substrate, including any improvements,
enhancements or modifications thereto developed during the term of this
Agreement that Merrill Lynch, in its sole discretion, provides to Level 8, and
to distribute the Distributed Computing Substrate to the public pursuant to
license agreements containing terms which are adequate to protect the rights of
Merrill Lynch in the Distributed Computing Substrate.
2.4 LEVEL 8 LICENSE TO MERRILL LYNCH. Level 8 hereby grants to
Merrill Lynch, and Merrill Lynch hereby accepts, a royalty-free, perpetual,
worldwide license to copy, display, use, modify and reproduce any Technology
developed by Level 8 and any modifications or enhancements made by Level 8 to
the PCA Shell, including any improvements, enhancements or modifications thereto
developed during or after the term of this Agreement, for any and all business
uses of Merrill Lynch and its Affiliates and subsidiaries.
2.5 EXCLUSIVITY PERIOD. The foregoing licenses with respect to the
PCA Shell, and the Patent granted by Merrill Lynch shall be exclusive, subject
to Section 2.7, for two years from the Effective Date (the "Exclusivity
Period"), after which such licenses shall be non-exclusive unless the average,
split-adjusted closing price of the common stock of Level 8 over a period of 60
consecutive trading days during the Exclusivity Period is greater than or equal
to $120 per share (the "Target Price").
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Notwithstanding the aforementioned provision, if during the Exclusivity Period
(i) the Target Price is not achieved for the requisite time period but (ii) the
average closing price of the Dow Jones Industrial Average over a period of 60
consecutive trading days during the Exclusivity Period is less than 5,000, then
the Exclusivity Period shall be extended for one additional year, for a maximum
total Exclusivity Period of three years subject to further extensions as may be
agreed upon in writing by the parties. If Level 8 common stock achieves the
above mentioned Target Price, the PCA Shell and Patent licenses shall become
exclusive in perpetuity. For avoidance of doubt, the lapse of exclusivity shall
apply only to the PCA Shell as delivered pursuant to Section 2.1.
Notwithstanding the foregoing, Merrill Lynch shall have the rights: (i) to
continue development of the PCA Shell Software independently of Level 8's
development efforts after the Effective Date; (ii) to copy, display, use, modify
and reproduce the modifications and improvements that Merrill Lynch
independently develops; and (iii) subject to the exclusivity with respect to the
PCA Shell and the Patent granted pursuant to this Section 2.5, to distribute
such modifications and improvements to the public.
2.6 ENFORCEMENT DURING THE EXCLUSIVITY PERIOD. During the
Exclusivity Period, Merrill Lynch shall have the initial right, but not the
obligation, for a period of 60 days commencing upon the discovery of an alleged
infringer of the Patent to enforce the Patent against the alleged infringer. The
discovery of an alleged infringer of the Patent shall mean the receipt of a
written legal opinion from counsel of Merrill Lynch's choice, in its sole
discretion, that the Patent has been infringed. If Merrill Lynch decides, in its
sole discretion, not to enforce the Patent against such alleged infringer, the
right to enforce the patent against the alleged infringer shall be transferred
to Level 8, except to the extent that the activities of the alleged infringer
are on behalf of Merrill Lynch in support of its business activities relating to
the PCA Shell.
2.7 RESERVATION OF RIGHTS. Notwithstanding any provision to the
contrary, Merrill Lynch hereby reserves the right (i) to copy, display, use,
modify and reproduce the PCA Shell, and (ii) to make, have made and use products
incorporating inventions claimed in the Patent, for its own business uses and
the business uses of its Affiliates and subsidiaries.
2.8 MARKING. Level 8 shall mark any product containing the PCA
Shell or any inventions covered by the Patent with a notice containing
reasonable text which shall be provided by Merrill Lynch.
ARTICLE 3 - PROPRIETARY INFORMATION
3.1 DURATION. The provisions of this Article 3 shall survive the
termination of this Agreement for a period of five years thereafter.
3.2 APPLICATION OF MUTUAL NON-DISCLOSURE AGREEMENT. Except where
expressly and specifically stated to the contrary in this Agreement or in the
Master
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License Agreement between Merrill Lynch and Seer Technologies, Inc.,
predecessor in interest to Level 8, dated October 24, 1996, the terms and
conditions set forth in paragraphs 1, 2, 3, 4 (first paragraph only), 5 and 7 of
the Mutual Non-Disclosure Agreement dated July 1, 1999 between Merrill Lynch and
Level 8 shall apply to any and all information disclosed pursuant to the terms
of this Agreement.
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES. Each party hereby represents,
warrants and covenants to the other party that it has full corporate power and
authority to enter into this Agreement, and the execution by it of this
Agreement and the consummation by it of the transactions contemplated by this
Agreement have been duly authorized by all necessary corporate actions; the
execution and delivery of this Agreement, and the consummation of the
transactions contemplated by this Agreement, do not conflict with or violate:
(i) its charter documents or by-laws; (ii) any contract or agreement to which it
is a party, by which it or any of its affiliates is bound, or to which any of
its assets are subject; or (iii) any applicable law or the order of any court or
governmental authority. Merrill Lynch hereby represents and warrants that it has
sufficient rights in the PCA Shell Software to grant the rights described herein
and has not previously and will not grant any rights in the PCA Shell Software
to any third party that are inconsistent with the rights granted to Level 8
herein. Merrill Lynch further represents and warrants that to its knowledge the
PCA Shell Software does not infringe any patents, copyrights, trade secret
rights, trademarks or other proprietary rights held by any third party.
4.2 LIMITATIONS; DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH IN
THE MASTER LICENSE AGREEMENT, THE FOLLOWING LIMITATIONS AND DISCLAIMERS SHALL
APPLY:
(a) IN NO EVENT SHALL MERRILL LYNCH OR ITS AFFILIATES OR SUPPLIERS BE
LIABLE FOR PROSPECTIVE PROFITS, OR ANY SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF (i) THE USE OR DISTRIBUTION OF ANY
PCA SHELL SOFTWARE, THE DISTRIBUTED COMPUTING SUBSTRATE OR
DOCUMENTATION PROVIDED BY MERRILL LYNCH, IN WHOLE OR IN PART, OR ANY
EXECUTABLE SOFTWARE OR LEVEL 8 SOFTWARE, BY LEVEL 8 OR ANY THIRD PARTY,
(ii) THE MANUFACTURING OF PRODUCTS BY LEVEL 8 WHICH INCLUDE THE PCA
SHELL SOFTWARE AND/OR THE DISTRIBUTED COMPUTING SUBSTRATE, IN WHOLE OR
IN PART, OR ANY OF THE INTELLECTUAL PROPERTY RIGHTS LICENSED UNDER THIS
AGREEMENT, OR (iii) THE USE OF SUCH PRODUCTS BY LEVEL 8 OR ANY END
USER, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE),
INDEMNITY, PRODUCT LIABILITY OR OTHERWISE. IN NO EVENT SHALL MERRILL
LYNCH'S LIABILITY
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ARISING UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY
LIABILITY FOR DIRECT DAMAGES, EXCEED THE FAIR MARKET VALUE ON THE
EFFECTIVE DATE, OF THE SECURITIES RECEIVED BY MERRILL LYNCH PURSUANT TO
SUCH PURCHASE AGREEMENT.
(b) NEITHER MERRILL LYNCH, NOR ANY AFFILIATE, NOR ANY OF THEIR RESPECTIVE
DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, SHALL BEAR ANY RISK, OR HAVE
ANY RESPONSIBILITY OR LIABILITY, OF ANY KIND TO LEVEL 8 OR TO ANY THIRD
PARTIES WITH RESPECT TO (i) THE QUALITY AND/OR PERFORMANCE OF ANY
PORTION OF THE PCA SHELL SOFTWARE, THE DISTRIBUTED COMPUTING SUBSTRATE
AND DOCUMENTATION, (ii) THE INTELLECTUAL PROPERTIES RIGHTS LICENSED BY
MERRILL LYNCH HEREUNDER, OR (iii) ANY PRODUCTS INCORPORATING ANY OF THE
FOREGOING, IN WHOLE OR IN PART, INCLUDING, WITHOUT LIMITATION, THE
OPERATION OR PERFORMANCE OF ANY OF SUCH PRODUCTS.
(c) NEITHER DOES MERRILL LYNCH NOR ITS AFFILIATES AND SUPPLIERS MAKE, NOR
DOES LEVEL 8 RECEIVE, ANY WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED OR
STATUTORY REGARDING THE PCA SHELL SOFTWARE, THE DISTRIBUTED COMPUTING
SUBSTRATE AND/OR THE INTELLECTUAL PROPERTY RIGHTS LICENSED BY MERRILL
LYNCH HEREUNDER EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MERRILL LYNCH AND ITS
AFFILIATES AND SUPPLIERS EXPRESSLY DISCLAIM THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THEIR
EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION, REGARDING THE PCA SHELL
SOFTWARE, THE DISTRIBUTED COMPUTING SUBSTRATE AND DOCUMENTATION. ANY
WARRANTY AGAINST INFRINGEMENT THAT MAY BE PROVIDED IN SECTION 2-312(3)
OF THE UNIFORM COMMERCIAL CODE AND/OR IN ANY OTHER COMPARABLE STATE
STATUTE IS EXPRESSLY DISCLAIMED.
ARTICLE 5 - TERMINATION
5.1 TERMINATION BY EITHER PARTY. Either party may terminate this
Agreement, effective immediately upon receipt of notice of termination by the
other party, in the event that the other party defaults on the performance or
observance of any of the material terms or material conditions of this Agreement
(including without limitation, a breach of warranty or of an obligation with
respect to the maintenance of
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confidentiality), which default is not remedied within thirty (30) days after
written notice specifying the nature of the default is received.
ARTICLE 6 - EFFECTS OF TERMINATION
6.1 LICENSES. Upon the termination of this Agreement, (i) all
licenses granted by one party to the other (and permitted sublicenses granted to
third parties) shall survive, but neither party shall have any further rights to
grant sublicenses under the other party's Technology or Intellectual Property to
third parties or to distribute the other party's Software to any third party,
and (ii) notwithstanding any provision of this Agreement to the contrary, any
exclusive licenses granted to Level 8 under this Agreement by Merrill Lynch
shall immediately become non-exclusive.
6.2 SURVIVAL PROVISIONS OF AGREEMENT. In the event of any
termination of this Agreement, the provisions of Articles 2 (OWNERSHIP AND
LICENSE), 3 (PROPRIETARY INFORMATION AND RIGHTS), 4 (REPRESENTATIONS AND
WARRANTIES), 6 (EFFECTS OF TERMINATION), 8 (INDEMNIFICATION BY MERRILL LYNCH)
AND 9 (DISPUTE RESOLUTION) shall survive and continue in effect as set forth
therein and shall inure to the benefit of and be binding upon the parties and
their legal representatives, heirs, successors, and permitted assigns.
ARTICLE 7 - FORCE MAJEURE
7.1 LIMITATION ON LIABILITY. Neither party shall be liable to the
other party for any failure or delay in performance under this Agreement, and
such failure or delay shall not constitute a default under or breach of this
Agreement, for any period and to the extent that the failure or delay is due in
whole or in part to any cause beyond its reasonable control, including but not
limited to, action or inaction of governmental, civil or military authority,
changes in federal, state or local statutes, rules or regulations, delays in
transportation, sources of supply, material shortages, third party labor
difficulties, accidents, acts of God, fire, flood, war, riot, earthquake or any
other force majeure.
ARTICLE 8 - INDEMNIFICATION BY MERRILL LYNCH
8.1 INDEMNIFICATION BY MERRILL LYNCH. Subject to Section 8.3,
Merrill Lynch (the "Indemnifying Party") shall indemnify Level 8 (the
"Indemnified Party") and its affiliates against, and hold them harmless from,
any and all claims, losses, deficiencies, damages, liabilities, costs, and
expenses (including without limitation reasonable attorneys' fees and all
related costs and expenses) ("Losses") incurred by the
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Indemnified Party as a result of any third party claim, judgment or adjudication
against them arising from a breach by Merrill Lynch of its representations and
warranties contained herein.
8.2 LIMITATION. The indemnities in Sections 8.1 shall not apply:
(a) if the Indemnified Party fails to give the Indemnifying Party prompt notice
of any claim it receives and such failure materially prejudices the Indemnifying
Party, (b) if the Indemnified Party fails to provide reasonable information and
cooperation to the Indemnifying Party in connection with the litigation or
settlement of a third party claim; or (c) unless the Indemnifying Party is given
the opportunity to approve any settlement, which approval shall not be
unreasonably withheld; provided, however, that if the Indemnifying Party
unreasonably withholds such approval, it shall, at the option of the Indemnified
Party, be required to assume the defense of such claim at its own expense.
8.3 LIMITATION ON DAMAGES. MERRILL LYNCH SHALL HAVE NO
INDEMNIFICATION OBLIGATIONS RELATING TO THIS AGREEMENT OTHER THAN THOSE SET
FORTH IN SECTION 8.1, AND IN NO EVENT SHALL MERRILL LYNCH BE LIABLE UNDER THIS
AGREEMENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
ARTICLE 9 - DISPUTE RESOLUTION
9.1 The parties shall attempt to resolve in good faith any claim,
controversy or other dispute arising out of or relating to this Agreement. Any
such dispute which cannot be resolved informally shall be submitted in writing
to the Merrill Lynch Project Manger (as of the Effective Date, Elizabeth Lerner)
and the Level 8 Project Manager (as of the Effective Date, Ted Venema), who
shall attempt to resolve the dispute within seven calendar days of such
submission. Neither party may take any other action to resolve the dispute
during such seven calendar days.
ARTICLE 10 - MISCELLANEOUS
10.1 NOTICES. Whenever it is provided herein that any notice,
demand, request, consent, approval, declaration or other communication shall or
may be given to or served upon any of the parties by another, or whenever any of
the parties desires to give or serve upon another any such communication with
respect to this Agreement, each such notice, demand, request, consent, approval,
declaration or other communication shall be in writing and either shall be
delivered in person with receipt acknowledged or by registered or certified
mail, return receipt requested, postage prepaid, or by telecopy and confirmed by
telecopy answerback addressed as follows:
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If to Level 8:
Level 8 Systems, Inc.
8000 Regency Parkway
Cary, North Carolina 27511
Attn: Dennis McKinnie
Telecopy Number: (919) 380-5005
with a copy to:
Scott Smith
Powell Goldstein Frazer & Murphy
191 Peachtree Street, 16th Floor
Atlanta, Georgia 30303
Telecopy Number: (404) 572-6875
If to Merrill Lynch:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
222 Broadway
17th Floor
New York, New York 10038
Attn: Patrick Romain
Telecopy Number: (212) 670-4517
with copies to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attn: Howard Chatzinoff, Esq.
S. Wade Angus, Esq.
Telecopy Number: (212) 310-8007
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly given or served on the date on which personally delivered,
with receipt acknowledged, telecopied and confirmed by telecopy answerback, or
three (3) business days after the same shall have been deposited with the United
States mail.
10.2 Binding Effect; Benefits. Except as otherwise provided herein,
this Agreement shall be binding upon and inure to the benefit of the parties to
this Agreement and their respective successors and permitted assigns. Nothing in
this Agreement,
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express or implied, is intended or shall be construed to give any person other
than the parties to this Agreement or their respective successors or assigns any
legal or equitable right, remedy or claim under or in respect of any agreement
or any provision contained herein.
10.3 Complete Agreement; Amendment. This Agreement constitutes the
complete agreement and understanding of the parties with respect to the subject
matter hereof and thereof and supersedes any previous agreement or understanding
between them relating thereto. No amendment or waiver of any provision of this
Agreement nor consent to any departure by a party therefrom, shall in any event
be effective unless the same shall be in writing and signed by a party hereto,
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. No action taken pursuant to this
Agreement, including, without limitation, any investigation by or on behalf of
any party, shall be deemed to constitute a waiver by the party taking such
action, of compliance with any representations, warranties, covenants or
agreements contained herein. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
preceding or succeeding breach and no failure by either party to exercise any
right or privilege hereunder shall be deemed a waiver of such party's rights or
privileges hereunder or shall be deemed a waiver of such party's rights to
exercise the same at any subsequent time or times hereunder.
10.4 Assignability. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by Level 8 without Merrill Lynch's prior written approval.
10.5 Section and Other Headings. The section and other headings
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
10.6 Written Approval. All approvals and/or consents required by a
party to this Agreement must be requested by such party in writing to the other
party, and all approvals or consents shall not be effective unless in writing.
10.7 Severability. In the event that any one or more of the
provisions contained in this Agreement shall be determined to be invalid,
illegal or unenforceable in any respect for any reason, the validity, legality
and enforceability of any such provision or provisions in every other respect
and the remaining provisions of this Agreement shall not be in any way impaired.
10.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
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10.9 Publicity. Neither party shall issue any press release or make
any public disclosure regarding the transactions contemplated hereby unless such
press release or public disclosure is approved by the other party in advance.
10.10 Governing Law; Waiver of Jury Trial. This Agreement shall be
governed by, construed and enforced in accordance with, the laws of the State of
New York without regard to the principles thereof relating to conflict of laws.
Each of the parties hereby submits to personal jurisdiction and waives any
objection as to venue in the federal or state courts located in the County of
New York, State of New York. Service of process on the parties in any action
arising out of or relating to this Agreement shall be effective if mailed to the
parties in accordance with Section 10.1 hereof. The parties hereto waive all
right to trial by jury in any action or proceeding to enforce or defend any
rights under this Agreement.
10.11 No Partnership or Joint Venture. The relationship between
Merrill Lynch and Level 8 is that of licensor and licensee. Level 8 is an
independent contractor and is not the legal representative, agent, joint
venturer, partner or employee of Merrill Lynch for any purpose whatsoever.
Neither party has any right or authority to assume or create any obligations of
any kind or to make any representation or warranty on behalf of the other party,
whether express or implied, or to bind the other party in any respect
whatsoever.
10.12 Construction. This Agreement shall be fairly interpreted in
accordance with its terms and without any strict construction in favor of or
against either of the parties.
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IN WITNESS WHEREOF, Merrill Lynch and Level 8 have executed this Agreement as of
the day and year first above written.
LEVEL 8 SYSTEMS, INC.
By: /s/ Dennis McKinnie
------------------------------------------
Name: Dennis McKinnie
Title: Senior Vice President, Chief Legal
and Administrative Officer and
Corporate Secretary
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ E. Stanley O'Neal
------------------------------------------
Name: E. Stanley O'Neal
Title: Executive Vice President
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