Exhibit 99.6
STOCKHOLDER AND VOTING AGREEMENT
This Stockholder and Voting Agreement ("AGREEMENT"), is made effective
as of September 25, 1998, by and among SCIENCE APPLICATIONS INTERNATIONAL
CORPORATION, a Delaware corporation ("SAIC"), ODS NETWORKS, INC., a Delaware
corporation ("ODS"), and the stockholders of ODS identified below
("STOCKHOLDERS"), who agree as follows:
1. BOARD OF DIRECTORS; OTHER. In consideration of SAIC's investment
in ODS pursuant to the Asset and Securities Purchase Agreement between SAIC
and ODS of even date herewith ("A&SPA"), so long as SAIC beneficially owns,
directly or indirectly, the lesser of (i) five percent (5%) or more of the
outstanding shares of the common stock of ODS ("COMMON STOCK")or (ii)
1,000,000 shares of the Common Stock (as appropriately adjusted for stock
splits, stock dividends or other similar transactions), Stockholders and ODS
agree to take such action as may be required to cause:
(a) the expansion of the number of members of the ODS Board of Directors
from five (5) to six (6) members contemporaneously with the closing of
the A&SPA and;
(b) said sixth director to be nominated by SAIC and the Stockholders to
affirmatively support the election of such SAIC nominee;
(c) the ODS Board of Directors to permit a non-voting SAIC designee to
attend and observe any meetings of the ODS Board of Directors or any
committee thereof, provided, however, that in the event that the ODS
Board of Directors is expanded to more than six (6) members and a
nominee of SAIC is elected as the seventh member of the Board of
Directors, then upon such election, SAIC's right to have a non-voting
designee attend the ODS Board of Directors meetings shall cease;
(d) SAIC to designate a nominee as the seventh director in the event the
ODS Board of Directors is expanded to more than six (6) directors and
the Stockholders to affirmatively support the election of such SAIC
nominee;
(e) SAIC to have the right to approve the nomination by any of the
Stockholders of additional members of the ODS Board of Directors in
the event the ODS Board of Directors is expanded up to nine (9)
members, which such approval shall not be unreasonably withheld or
delayed;
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(f) the Board of Directors to not be increased above nine (9) members
without the advance written consent of the members of the Board of
Directors nominated by SAIC;
(g) ODS to obtain the consent of SAIC to engage in a transaction
involving: (i) the sale of all or substantially all of the assets of
ODS or the merger of ODS, other than a merger into a wholly owned
subsidiary, in which ODS is not the surviving entity or the
consolidation of ODS with one or more other corporations where, in any
such event, the transaction proceeds consist, in whole or in part, of
unregistered securities or registered securities of a company that is
publicly traded and the average trading volume of said entity is less
than fifteen percent (15%), on a fully-diluted basis, of SAIC's
holdings of shares of Common Stock AND the shares of Common Stock to
be issued upon the exercise of any warrants held by SAIC from time to
time or (ii) any future issuance by ODS of shares of ODS stock
representing twenty percent (20%) or more of the then outstanding
voting stock of ODS whether in a single transaction or a series of
transactions between ODS and the same party or the affiliates of such
party (in which case SAIC may condition its consent upon SAIC
receiving preemptive rights); provided, however, that SAIC's approval
will not be required with respect to any ODS stock (i) to be issued
pursuant to an employee stock option plan, or (ii) to be offered to
the public pursuant to an underwritten public offering.
(h) preemptive rights to be provided to SAIC with respect to any future
offering of additional shares of ODS stock other than shares of ODS
stock (i) any transaction approved by SAIC pursuant to this Agreement,
(ii) to be issued pursuant to an employee stock option plan, (iii) to
be offered to the public pursuant to an underwritten public offering,
or (iv) issued as full or partial consideration in connection with a
merger or acquisition by or of ODS.
2. TRANSFER OF SHARES. Nothing in this Agreement shall restrict the
ability of the a Stockholder to sell, transfer, or otherwise dispose of any
of the shares of Common Stock owned by them (the "STOCKHOLDER SHARES");
provided, however that for as long as a Stockholder owns any Common Stock
such Stockholder shall be bound by this Agreement.
3. STANDSTILL. For a period of one (1) year from the date of this
Agreement and subject to the exceptions provided in this Agreement, unless
SAIC shall have obtained the written consent of ODS, SAIC agrees that it will
not purchase, directly or indirectly, any additional shares of Common Stock
(other than pursuant to the exercise of warrants issued to SAIC by ODS)
except to retain SAIC's relative percentage of ownership of ODS stock.
Notwithstanding the foregoing, in the event a Stockholder sells any
Stockholder Shares, SAIC may, at any time thereafter, and without the consent
of ODS, purchase an amount equal to the Stockholder Shares sold by the
Stockholder(s).
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4. HOLDING PERIOD. SAIC agrees that it will hold the Common Stock,
warrants to purchase Common Stock or other securities of ODS issued to or
held by SAIC pursuant to the A&SPA and any shares of Common Stock or other
securities issued upon the exercise of the warrants (collectively, the
"SHARES") for at least twelve (12) months from the date of this Agreement;
provided, however, that nothing in the foregoing will be deemed to preclude
SAIC from exercising any warrants during the twelve (12) month period
following the date of this Agreement or to purchase additional Common Stock
as provided for in Section 3 above.
5. MISCELLANEOUS. SAIC agrees to make appropriate personnel available
for comment to industry analysts from time to time.
6. ARBITRATION OF DISPUTES. The parties agree that any controversy or
claim (whether such controversy or claim is based upon or sounds in statute,
contract, tort or otherwise) arising out of or relating to this Agreement,
any performance or dealings among the parties, or any dispute arising out of
the interpretation or application of this Agreement, which the parties are
not able to resolve, shall be settled exclusively by arbitration in Dallas,
Texas by a single arbitrator pursuant to the American Arbitration
Association's Commercial Arbitration Rules then in effect and judgment upon
the award rendered by the arbitrator shall be entered in any court having
jurisdiction thereof and such arbitrator shall have the authority to grant
injunctive relief in a form similar to that which a court of law would
otherwise grant. The arbitrator shall be chosen from a panel of licensed
attorneys having at least fifteen (15) years of professional experience who
are familiar with the subject matter of this Agreement. The arbitrator shall
be appointed within thirty (30) days of the date the demand for arbitration
was sent to the other party. Discovery shall be permitted in accordance with
the Federal Rules of Civil Procedure. If an arbitration proceeding is brought
pursuant to this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees, costs and necessary disbursements incurred in
addition to any other relief to which such party may be entitled.
7. CHOICE OF LAW. The Agreement and the performance or breach thereof
shall be governed by and interpreted as to substantive matters in accordance
with the applicable laws of the State of Delaware (excluding its choice of
law rules).
8. ASSIGNMENT. No portion of this Agreement or any right or
obligation hereunder can be assigned, in whole or in part, by any Stockholder
hereto without the prior written consent of SAIC unless the assignee executes
a document substantially similar to this Agreement, intending to be legally
bound thereby, and delivers same to SAIC. SAIC may not assign this Agreement
and any attempt to do so will be void and of no effect.
9. WAIVER. No waiver of, no delay in the exercise of, and no omission
to exercise any rights or remedies by any party shall be construed as a
waiver by such party of any other rights or remedies that such party may have
under this Agreement.
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10. NOTICE. Unless otherwise specified herein, any notice required or
permitted to be given under this Agreement shall be sufficient, if in
writing, and shall be deemed to be fully given if personally delivered, if
sent by registered mail, by facsimile with an original copy by regular mail,
or by telex with receipt acknowledged, to the following addresses:
(a) If to SAIC, to:
Xxxxxxx X. Xxxxxxx, Senior Vice President
Science Applications International Corporation
00000 Xxxxxx Xxxxx Xxxxx, X/X X0-X
Xxx Xxxxx XX 00000
FAX: 000-000-0000
With a copy to:
Xxxxx X. Xxxxxx, Esq.
Associate General Counsel
Science Applications International Corporation
00000 Xxxxxx Xxxxx Xxxxx, X/X X0
Xxx Xxxxx XX 00000
FAX: 000-000-0000
(b) If to ODS, to:
X. Xxxx Xxxxxx
Chairman, President and Chief Executive Officer
ODS Networks, Inc.
0000 X. Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx 00000
FAX: 000-000-0000
(c) If to Stockholders, to the address immediately below such
Stockholder's name.
The foregoing addresses and individuals may be changed by either party by
giving to the other party prior written notice of any such change.
11. THIRD PARTIES. Nothing herein expressed or implied is intended or
shall be construed to confer upon or give to any person or corporation other
than the parties hereto and their successors or assigns, any rights or
remedies under or by reason of this Agreement.
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12. FURTHER ASSURANCES. Each of the parties hereto agrees that from
time to time, at the request of any of the other parties hereto and without
further consideration, it will execute and deliver such other documents and
take such other action as such other party may reasonably request in order to
consummate more effectively the transactions contemplated hereby.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties concerning the subject matter hereof and may only be
modified by a written instrument executed by an authorized officer of both
parties. All proposals, negotiations and representations (if any) made
prior, and with reference to the subject matter of this Agreement, are merged
herein. This Agreement may be executed in multiple counterparts and each
counterpart will be deemed an original, but all counterparts together will
constitute a single instrument. This Agreement has been negotiated by the
parties and their respective counsel and will be interpreted fairly in
accordance with its terms and without any strict construction in favor of or
against either party. Neither SAIC, ODS nor any Stockholder shall be bound by
any oral agreement or representation, irrespective of when made.
IN WITNESS WHEREOF, as of the day first above written, SAIC and ODS have
caused this Agreement to be signed by their respective duly authorized
officers and each Stockholder and spouse, if any, have caused this Agreement
to be signed.
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Senior Vice President
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ODS NETWORKS, INC.,
a Delaware corporation
By: /s/ X. Xxxx Xxxxxx
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Name: X. Xxxx Xxxxxx
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Title: President
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STOCKHOLDERS OF ODS NETWORKS, INC.
/s/ T. Xxx Head
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T. Xxx Head
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(spouse)
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxxx
---------------------------------
(spouse)
/s/ X. Xxxx Xxxxxx
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X. Xxxx Xxxxxx
/s/ Xxx Xxxxxx
---------------------------------
(spouse)
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
(spouse)
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx Xxxxxx
---------------------------------
(spouse)
/s/ Xxxxx Xxxxxx Xxxxxxx
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Xxxxx Xxxxxx Xxxxxxx
---------------------------------
(spouse)
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