Exhibit 99.7
STRATEGIC ALLIANCE AGREEMENT
This Strategic Alliance Agreement ("AGREEMENT"), is made effective as of
September 25, 1998, by and between SCIENCE APPLICATIONS INTERNATIONAL
CORPORATION, a Delaware corporation ("SAIC"), and ODS NETWORKS, INC. a
Delaware corporation ("ODS"), who agree as follows:
1. PREFERENTIAL TREATMENT. This Agreement is not an exclusive
dealings agreement and either party is free to do business with others with
respect to future discrete (i.e., software programs designed to be marketed
on an individual program basis and not as a component of another software
program) computer network security software programs ("COMPUTER NETWORK
SECURITY PROGRAM(S)") created by or for SAIC or ODS; provided, however, that
in the event the SAIC executive principally responsible for managing the
business activities of the SAIC Software and Systems Group ("SAIC-SSG")
determines, in such executive's sole discretion, that any SAIC Computer
Network Security Program(s) that have been created exclusively by SAIC
employees employed within the SAIC Software and Systems Group which are
freely transferable by SAIC to a third party (including ODS) ("SAIC-SSG
COMPUTER NETWORK SECURITY PROGRAM(S)") should be licensed, sold, transferred
and/or assigned to a third party on an exclusive basis solely for marketing,
licensing or otherwise distributing such SAIC-SSG Computer Network Security
Program(s) exclusively into the commercial marketplace by the acquiror (the
"CONTEMPLATED EXCLUSIVE TRANSFER"), SAIC shall submit the Contemplated
Exclusive Transfer to ODS in reasonable detail for its consideration before
presenting the Contemplated Exclusive Transfer to other parties.
If ODS is interested in consummating the proposed Contemplated Exclusive
Transfer with SAIC, the parties shall negotiate in good faith the terms,
conditions, prices and other matters related to consummation of such
Contemplated Exclusive Transfer. In the event the parties do not reach a
basic agreement summarized in a writing signed by both parties within thirty
(30) days of the date SAIC discloses the Contemplated Exclusive Transfer to
ODS and consummate a definitive agreement concerning the Contemplated
Exclusive Transfer within sixty (60) days of the date SAIC discloses the
Contemplated Exclusive Transfer to ODS, SAIC will be free to deal with other
parties with respect to the Contemplated Exclusive Transfer. All information
disclosed by SAIC with respect to the Contemplated Exclusive Transfer,
including the fact that SAIC is considering a Contemplated Exclusive
Transfer, constitutes Confidential Information subject to the provisions of
Article 3 of this Agreement. The provisions of this Section 1 shall apply
only to the SAIC-SSG and not to any other business units, groups, joint
ventures, subsidiaries or affiliates of SAIC.
2. EXPRESSION OF DESIRES. The parties hereby express their mutual
desire, but no legal obligation, to use their respective best efforts to
generate, within two (2) years of the date of this Agreement, at least $25
million in combined revenues from (i) sales of any ODS products and/or
services initiated by SAIC as well as from systems integration and consulting
projects conducted by SAIC or its subsidiaries and affiliates involving ODS
products and/or services whether
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such revenues arise from this Agreement, the PartnersPlus Agreement between
the parties of even date herewith or the respective contracts of the parties
and/or their resellers, and (ii) sales of the computer network security
programs presently known as the Computer Misuse and Detection System
("CMDS"), Vulnerability Assessment System ("VAS"), Audit Monitoring and
Intrusion Detection System ("AMIDS") and Malicious Code Detection and
Eradication System ("MCDES") initiated by ODS and its resellers (excluding
the sales of such products and/or services by SAIC which shall be accounted
for in clause (i) of this Section 2); provided, however, that neither party
shall be liable to the other nor shall there be any economic consequence if
the parties fail to achieve this goal or even if they fail to use their best
efforts in pursuit of this goal. THE PARTIES RECOGNIZE THAT THE
AFOREMENTIONED EXPRESSION OF DESIRE IS NOT LEGALLY ENFORCEABLE AND THAT
NEITHER PARTY SHALL MAKE A CLAIM, DIRECTLY OR INDIRECTLY, AGAINST THE OTHER
WITH RESPECT TO THE FOREGOING.
3. CONFIDENTIAL INFORMATION.
3.1 The parties anticipate that under this Agreement it may be
necessary for either party to transfer to the other information of a
confidential and/or proprietary nature concerning the contemplated
exclusive transfer ("CONFIDENTIAL INFORMATION"). The disclosing party
shall clearly identify Confidential Information at the time of disclosure
by being either marked with a legend clearly indicating that it is
confidential or proprietary and all oral information that they reduce to
writing and is identified as confidential or proprietary and such writing
is given to the recipient within fifteen (15) days of the date of the oral
disclosure. Any information otherwise provided shall be deemed to not be
confidential or proprietary.
3.2 Each of the parties agree that it shall use the same efforts to
protect such Confidential Information as are used to protect its own
Confidential Information. Disclosures of such Confidential Information
shall be restricted to those individuals who are directly participating in
the proposal and contracting efforts hereunder.
3.3 Neither party shall make any reproductions, disclosure or use of
such Confidential Information except in performing its obligations under
this Agreement.
3.4 The limitations on reproduction, disclosure or use of
Confidential Information shall not apply to, and neither party shall be
liable for reproduction, disclosure or use of Confidential Information with
respect to which any of the following conditions exist:
(a) If, prior to the receipt thereof under this Agreement, it
has been developed independently by the party receiving it, or was
lawfully known to the party receiving it, or has been lawfully
received from other sources, including the Customer, provided such
other source did not receive it due to a breach of this Agreement;
(b) If, subsequent to the receipt thereof under this Agreement,
(i) it is published by the party furnishing it or is disclosed by the
party furnishing it to others, including the Customer, without
restriction, or (ii) it has been lawfully obtained by the party
receiving it from other sources, provided such other source did not
receive
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it due to a breach of this Agreement, or (iii) if such information
otherwise comes within the public knowledge or becomes generally
known to the public; or
(c) If any part of the Confidential Information has been or
hereafter shall be disclosed in a United States patent issued to the
party furnishing the Confidential Information hereunder, then, after
the issuance of said patent, the limitations on such Confidential
Information as disclosed in the patent shall be only that afforded by
the United States Patent Laws.
3.5 Neither the execution and delivery of this Agreement, nor the
furnishing of any Confidential Information by either party shall be
construed as granting to the other party either expressly, by implication,
estoppel, or otherwise, any license under any invention, patent, trademark,
or copyright now or hereafter owned or controlled by the party furnishing
same.
3.6 Each of the parties shall identify a person responsible for
receipt of Confidential Information subject to this Article.
4. INDEPENDENT CONTRACTORS. The parties hereto intend that the
relationship between them created by this Agreement shall be that of
independent contractors and that the relationship shall continue as such as
long as this Agreement remains in effect. Nothing contained in this Agreement
shall be construed to constitute either party as a partner, employee or agent
of the other, and no employee or agent of either party shall be or be deemed
to be the employee or agent of the other.
5. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE
TO ONE ANOTHER OR TO ANY THIRD PARTY IN CONTRACT, TORT OR OTHERWISE FOR
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES, INCLUDING WITHOUT
LIMITATION, LOST BUSINESS PROFITS OR LOSS, DAMAGE OR DESTRUCTION OF DATA.
6. TERMINATION. This Agreement shall have an initial term of two (2)
years. Thereafter either party shall have the right to terminate this
Agreement at any time, with or without cause, effective upon thirty (30)
day's written notice to the other party. The termination of this Agreement
shall not terminate the obligations under Section 3 hereof or impact any
transactions entered by the parties previous thereto which shall continue
according to the provisions established by the parties for same.
7. 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 between 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
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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.
8. 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).
9. ASSIGNMENT. No portion of this Agreement or any right or
obligation hereunder can be assigned, in whole or in part, by either party
hereto without the prior written consent of the other party.
10. WAIVER. No waiver of, no delay in the exercise of, and no omission
to exercise any rights or remedies by either party shall be construed as a
waiver by such party of any other rights or remedies that such party may have
under this Agreement.
11. 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
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Chairman, President and Chief Executive Officer
ODS Networks, Inc.
0000 X. Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx 00000
FAX: 000-000-0000
The foregoing addresses and individuals may be changed by either party by
giving to the other party prior written notice of any such change.
12. 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.
13. 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 shall 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.
14. 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 two (2) or more 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 nor ODS 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.
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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