Exhibit 10.3
SETTLEMENT AGREEMENT AND MUTUAL RELEASES IN FULL
THIS SETTLEMENT AGREEMENT AND THESE MUTUAL RELEASES IN FULL ("Agreement")
is entered into as of the 28th day of June, 2002, by and between OAO Technology
Solutions, Inc. ("OAOT"), a Delaware corporation, and Siebel Systems, Inc.
("Siebel"), a Delaware corporation. Each of the aforesaid parties ("Parties"),
as defined, shall be deemed to include its respective former and present
parents, subsidiaries and affiliates and all of its and of their heirs,
predecessors, successors, assigns, officers, directors, employees, principals,
agents, legal and personal representatives, insurers, insurance adjusters,
executors, administrators, affiliates, privies, and all other related persons
and entities of any kind.
WHEREAS, in or with an effective date in 1999, OAOT and Siebel entered
into four commercial agreements: Siebel Alliance Program Master Agreement, Value
Added Industry Remarketer Agreement ("VAIR"), Software License and Services
Agreement ("SLSA"), Professional Services Addendum to the Software License and
Services Agreement and various amendments to the forgoing agreements
(collectively the "Siebel Agreements"); and
WHEREAS, disputes have arisen between OAOT and Siebel concerning each
Parties' performance under the Siebel Agreements; and
WHEREAS, OAOT has asserted claims against Siebel in an action pending in
the Circuit Court for Prince George's County, Maryland styled OAO Technology
Solutions, Inc. v. Siebel Systems, Inc., C.A. No. L01-20173 (the "Action"); and
WHEREAS, Siebel has asserted counterclaims against OAOT in the Action; and
WHEREAS, the Parties, without admitting any liability, desire to resolve
their differences and settle all claims, defenses, setoffs or any other matter,
whether asserted or unasserted, in or arising, directly or indirectly, from the
Action and the Siebel Agreements by making certain agreements and executing
mutual releases as provided below.
NOW, THEREFORE, for and in consideration of the agreements, releases and
representations contained in this Agreement, the Parties agree as follows:
A. Effective Date of Agreement
1. This Agreement will have an effective date of June 30, 2002.
B. Stipulation of Dismissals With Prejudice
2. Upon execution of this Agreement by both Parties, counsel for OAOT and
Siebel will execute and file a Stipulation of Dismissal with Prejudice
dismissing the Action, each side to bear its own fees and costs.
C. Termination of the Siebel Agreements
3. By execution of this Agreement, both Parties acknowledge that the
Siebel Agreements are terminated and that each Party is released from any
further performance under the Siebel Agreements, including, but not limited to,
payment of monies, transfer of stock, selection of software, and maintenance,
support and upgrades with the following exceptions: (i) any rights and
obligations set forth under that Siebel Agreements that are expressly stated
to survive termination; and (ii) any rights and obligations contained in the
Siebel Agreements that the parties agree herein shall survive termination and
more specifically set forth in Section D herein.
D. Reinstatement of Certain Provisions of the SLSA Relating to Internal
Use Software
4. Notwithstanding paragraph 3 above, the Parties agree to reinstate
certain provisions of the SLSA as of the date of this Agreement in order to
allow OAOT to use certain Siebel software products set forth in Exhibit A hereto
(the "Internal Use Software"). OAOT will have the limited right to use the
Internal Use Software up through and including January 1, 2004, and without any
additional cost to OAOT and/or Siebel. OAOT's use of the Internal Use Software
shall be in strict accordance with the terms and conditions of the SLSA and,
specifically, the Parties agree that Sections 1, 2, 3, 5, 6, 7 and 9 of the SLSA
shall survive execution of this Agreement and shall govern OAOT's use of the
Internal Use Software. Notwithstanding the provisions of Section 2.2 of the
SLSA, under no circumstances is OAOT permitted to sell or transfer any of the
Internal Use Software to any third-party without the express written consent of
Siebel and Siebel shall have no obligation to approve any request by OAOT to
sell or transfer any of the Internal Use Software. OAOT will execute all
necessary agreements, licenses, and other documents to protect Siebel's
intellectual property rights and to comply with applicable Siebel policies and
procedures regarding the Internal Use Software. Further, Siebel shall not be
required to provide any updates, maintenance and support services unless OAOT
separately agrees to pay for such updates, maintenance and support services.
OAOT shall have no obligation to purchase updated, maintenance and support
services from Siebel.
5. On or before January 1, 2004, OAOT will return any and all Internal Use
Software that is not installed and being currently used to Siebel and/or will
provide the certification called for under Section 5.5 of the SLSA.
E. Mutual Releases In Full
6. OAOT, intending to be legally bound, each do for itself, for its heirs,
beneficiaries, successors, assigns, divisions, affiliates, parents,
subsidiaries, directors, officers, shareholders, partners, employees, agents,
representatives, legal representatives, predecessors in interest, and for all
persons and entities in which they or any of them own a controlling interest,
hereby remise, release, acquit and forever discharge Siebel and each of its
respective heirs, beneficiaries, successors, assigns, divisions, affiliates,
parents, subsidiaries, directors, officers, shareholders, partners, employees,
agents, representatives, legal representatives, predecessors in interest, and
for all persons and entities in which they or any of them own a controlling
interest, of and from all manner of actions, causes of actions, suits, debts,
dues and sums of money, accounts, reckoning, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises, variances,
trespasses, damages, judgments, extents, executions, claims and demands
whatsoever, in law, in admiralty, or in equity, against Siebel which it ever
had, now have, or which they or their successors hereafter can, shall, or may
have for, upon, by reason of any manner, cause, or thing whatsoever from the
beginning of the world to the date of this Agreement relating to, referring to,
arising out of, or in connection with the facts, circumstances, or occurrences
set forth in the complaint, counterclaims, cross-claims, or other pleadings in
the Action, styled OAO Technology Solutions, Inc. v. Siebel Systems, Inc., C.A.
No. L01-20173 pending in the Circuit Court for Prince George's County Maryland,
or any other dealings between or among the Parties, or any other claims, demands
and liabilities arising under any federal or state law.
7. Siebel, intending to be legally bound, each do for itself, for its
heirs, beneficiaries, successors, assigns, divisions, affiliates, parents,
subsidiaries, directors, officers, shareholders, partners, employees, agents,
representatives, legal representatives, predecessors in interest, and for all
persons and entities in which they or any of them own a controlling interest,
hereby remise, release, acquit and forever discharge OAOT and each of its
respective heirs, beneficiaries, successors, assigns, divisions, affiliates,
parents, subsidiaries, directors, officers, shareholders, partners, employees,
agents, representatives, legal representatives, predecessors in interest, and
for all persons and entities in which they or any of them own a controlling
interest, of and from all manner of actions, causes of actions, suits, debts,
dues and sums of money, accounts, reckoning, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises, variances,
trespasses, damages, judgments, extents, executions, claims and demands
whatsoever, in law, in admiralty, or in equity, against OAOT which it ever had,
now have, or which they or their successors hereafter can, shall, or may have
for, upon, by reason of any manner, cause, or thing whatsoever from the
beginning of the world to the date of this Agreement relating to, referring to,
arising out of, or in connection with the facts, circumstances, or occurrences
set forth in the complaint, counterclaims, cross-claims, or other pleadings in
the Action, styled OAO Technology Solutions, Inc. v. Siebel Systems, Inc., C.A.
No. L01-
20173 pending in the Circuit Court for Prince George's County Maryland, or any
other dealings between or among the Parties, or any other claims, demands and
liabilities arising under any federal or state law.
F. Miscellaneous Provisions
8. This Agreement, its construction, interpretation and enforcement, shall
be governed by the laws of the State of New York, without regard to its
conflicts of law rules.
9. It is understood and agreed that the Parties to this Agreement do
hereby declare, represent, agree and warrant that:
a. In executing this Agreement, the Parties rely upon their own
judgment, belief and knowledge as to the nature, extent and effect of the
potential liability of the Parties and of the liabilities, whether potential or
otherwise, mutually released hereby;
b. The Parties to this Agreement have had the benefit of independent
counsel in connection with the Action and in connection with this Agreement and
each represents and warrants that it has read and understands the terms,
conditions, obligations and consequences of entering into this Agreement and is
entering into same voluntarily and knowingly;
c. The Parties agree that: (1) each Party and counsel for each Party
participated in the preparation and drafting of this Agreement and, accordingly,
the normal rule of construction (to the effect that any ambiguities are to be
resolved against the drafting party) will not be employed in any interpretation
of this Agreement; (2) if any part, term, or provision of the Agreement shall to
any extent be declared unenforceable or illegal by court of competent
jurisdiction, the remainder of this agreement shall not be affected thereby, and
each part, term, or provision of this Agreement (including, but not limited to,
any enforceable and legal portion of the challenged part, term, or provision)
shall be valid and enforceable to the fullest extent permitted by law; and (3)
to the extent that a court of competent jurisdiction determines that one or more
provisions of the Agreement are vague, ambiguous, or conflict, the Parties agree
that the court shall construe or apply the provisions so that the Parties'
intent of resolving disputes and liabilities (except as otherwise set forth or
reserve herein) related to the Siebel Agreements and the Action is effectuated.
d. This Agreement is made without reliance upon any statement,
representation, promise, inducement, understanding or agreement that is not
expressed in the Agreement;
e. This Agreement contains the entire agreement between the Parties
with regard to the matters set forth in it and supersedes all prior or
contemporaneous oral or written understandings, statements, representations, or
promises. This Agreement may be amended or modified only by an agreement in
writing executed in the same manner as this Agreement;
f. The parties represent and warrant that they have full authority
to enter into this Agreement and that they have not assigned, encumbered,
transferred, or otherwise disposed of all or any portion of, or interest in, any
of their rights arising out of the Action or any of the matters hereinbefore
referred to in this Agreement to any person, corporation or assignee of any sort
whatsoever.
10. The Parties acknowledge and agree that this Agreement shall be, and
is, binding upon their respective heirs, predecessors, successors, and assigns.
11. Nothing in this Agreement shall operate to release or discharge any
Parties to this Agreement or their successors or assigns from any rights,
claims, or causes of action arising out of, relating to, or connected with a
breach of any obligation of any Party under this Agreement.
12. It is agreed by and among each of the Parties that nothing herein
shall be deemed to be evidence or an admission or concession on the part of any
Party of any liability or wrongdoing whatsoever.
13. The persons executing this Agreement on behalf of OAOT and Siebel,
respectively, represent and warrant that they have the express and actual
authority of OAOT and Siebel, respectively, to enter into this Agreement on
behalf of OAOT and Siebel, and to bind such party and recognize that the other
Parties to this Agreement are relying on said representation as an inducement to
enter into this Agreement. OAOT and Siebel represent and warrant that this
Agreement has been duly authorized by all necessary corporate action and
constitute valid and binding obligations of OAOT and Siebel.
14. The Parties acknowledge that the terms of this Agreement shall survive
the execution of the mutual releases contained in this Agreement and that this
Agreement shall continue in full force and effect after execution.
15. This Agreement may be executed simultaneously in counterparts with the
Parties signing separate but identical signature pages that, when taken
together, shall constitute one and the same Agreement. Facsimile signatures are
effective to bind a Party to this Agreement, with the understanding that the
original signature will be forwarded to the other Party within a reasonable
period of time.
OAO TECHNOLOGY SOLUTIONS, INC. SIEBEL SYSTEMS, INC.
By: By:
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J. Xxxxxxx Xxx Xxxxxxx X. Xxxxx
Title: Chief Financial Officer Title: Vice President and General Counsel
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Date: Date:
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