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.
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
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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.
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.
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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
------------------------------------
Name: X. Xxxx Xxxxxx
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Title: Chief Executive Officer
---------------------------------
STOCKHOLDERS OF ODS NETWORKS, INC.
/s/ T. Xxx Head
---------------------------------------
T. Xxx Head
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(spouse)
Address: 0000 X. Xxxxxxx Xxxx
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Xxxxxxxxxx, XX 00000
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/s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxxx
-----------------------------
(spouse)
Address: 000 Xxxxxxxx Xxxx
-------------------------------
Xxxxx, XX 00000
-------------------------------
/s/ X. Xxxx Xxxxxx
---------------------------------------
X. Xxxx Xxxxxx
/s/ Xxx Xxxxxx
-----------------------------
(spouse)
Address: P. O. Xxx 000
-------------------------------
Xxxxx, XX 00000
-------------------------------
/s/ Xxxx X. Xxxxxx
---------------------------------------
Xxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
-----------------------------
(spouse)
Address: P. O. Xxx 000
-------------------------------
Xxxxx, XX 00000
-------------------------------
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx Xxxxxx
-----------------------------
(spouse)
Address: 0000 Xxxxx Xxxx Xxxx
-------------------------------
XxXxxxxx, XX 00000
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/s/ Xxxxx Xxxxxx Xxxxxxx
---------------------------------------
Xxxxx Xxxxxx Xxxxxxx
-----------------------------
(spouse)
Address: 0 Xxxxx Xxxx Xxxxx
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Xxxxx, XX 00000
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