**Exhibit 10.13**

 

**License and****Distribution Agreement**

 

ThisLicense and Distribution Agreement is entered into by and between OPNETTechnologies, Inc., a Delaware corporation with principal offices locatedat 7255 Woodmont Avenue, Bethesda, Maryland 20814 (“OPNET”), and RadViewSoftware, Ltd., an Israeli corporation with corporate headquarters located at 7New England Executive Park, Burlington, Massachusetts 01803 (“RadView”),effective this 7th day of December 2005 (the “Effective Date”).

 

Inconsideration of the premises and mutual covenants contained herein, and othervaluable consideration, the receipt and adequacy of which is herebyacknowledged by each party, the parties hereby agree as follows:

 

**1.****            ****Scope of Agreement.**

 

This Agreement shall set forth the terms andconditions pursuant to which (a) RadView shall deliver, and OPNET shall belicensed to use and exploit, the RadView proprietary Source Materials to theSoftware, and (b) RadView shall provide certain professional services toOPNET in connection with and in support of OPNET’s license rights with respectto the Source Materials.

 

**2.****            ****Definitions.**

 

2.1           Derivative Product(s).   Theterm “Derivative Product(s)” shall refer to any and all (a) new softwareapplications or documentation, or (b) modifications, enhancements,improvements, updates, re-branding, and derivative works of the Software, ineither case developed by OPNET from the Source Materials.

 

2.2           Software.   The term “Software” shallrefer to the two RadView proprietary applications, WebLOAD and WebFT,identified in Exhibit A hereto.

 

2.3           Source Materials.   Theterm “Source Materials” shall mean:  (i) sourcecode, including related reference files, resource files, configuration files,and “include” files necessary to compile the source code intomachine-executable form used to run the Software or used in thepreparation of the Software or its enabling keys; (ii) any associatedfiles necessary to run and exercise all functions of the Software; (iii) alisting and description of all known product defects and bugs current and openas of the Effective Date, and all closed bugs associated with the source code; (iv) instructions,notes, references, programs and other materials (excluding any third partysoftware programs) required for the technical staff of OPNET, without anyadditional assistance from RadView, to make modifications and prepare anexecutable code copy of the Software from the source code of such Software, viathe procedures of assembly, compilation, linking and/or any other procedure, whichmaterials shall include all such materials (exclusive of third party materials) actually used by RadView to prepareexecutable code copies of such Software and access keys for such Software; (v) productdocumentation (source version and final form); (vi) installationprocedures and any installation or support utilities; (vii) any “back-office”applications necessary to allow end-users to exercise any function of thesource code, including but not limited to automatic updating or patching of theend-user’s installation; (viii) images and graphics (source version andfinal form); and (ix) design documents, source code overviews anddescriptions, API documents, and requirement documents for each of thefollowing: (a) the highest patch level of each Major Release of the Software generally distributed by RadViewduring the forty-eight (48) months preceding the Effective Date and includingthe optional (at OPNET’s election) additional portions of the SourceMaterial described in Section 5, (b) all“in progress” work related to the Software as of the Effective Date, and (c) all“in progress” work related to Java applet testing technology as of the paymentdate specified under Section 7.2 for the fourth installment payment of theInitial Services Fee. RadView shall deliver to OPNET, within two (2) businessdays following RadView’s receipt of the Source Code License Fee identified in Section 7below, thirty (30) FlexLM license keysfor running each of the Software, including thirty (30) “100 Virtual Users”licenses for WebLOAD for the in progress work and the Major Release usingFlexLM generally distributed by RadView in the 12 months immediately prior tothe effective date. Source Materials shall not include any source code orsource code documentation for third party products.

 

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2.4           Major Release.   Theterm “Major Release” shall mean Software version numbers that differ inthe number to the left of the first decimal place and/or differ in the numberimmediately to the right of the first decimal place. For example, versions 6.0,6.1, 6.2, and 7.1, and 7.2 are all considered Major Releases.

 

**3.****            ****Delivery of Source Materials.**

 

3.1           RadView shall deliver to OPNET, within two (2) businessdays following RadView’s receipt of the Source Code License Fee identified in Section 7below, one copy of the Source Materials, in electronic form. The deliverablesunder this Agreement shall include the complete “build environment”, includingfull test system and all existing test cases for API and UI testing, as well asthe source code for any custom developed build or test tools. This environmentshall be installed and working on equipment delivered to OPNET by RadView.Title to the build environment and equipment shall pass to OPNET immediatelyfollowing OPNET’s notice to RadView that OPNET has obtained all third partylicenses required for the build environment deliverable: (a) as a licenseeand/or (b) as an authorized sublicensee under a third party license(s)issued to RadView. The build environment and equipment shall be delivered asdirected by OPNET during the Knowledge Transfer Period.

 

3.2           RadView shall deliver to OPNET, within two (2) businessdays following RadView’s receipt of the fourth installment payment of theInitial Services Fee one copy in electronic form of all “in progress” workrelated to the Java applet testing technology described under Section 2.3(c).

 

**4.****            ****Source Code License Grant.**

 

4.1           License to Create, and Distribute andSublicense Derivative Products.   Subject to OPNET’s compliance with theterms and conditions of this Agreement, including the license terms andlimitations set forth in this Section, and contingent upon OPNET’s payment toRadView in full of the Source Code License Fee, RadView hereby grants to OPNETa non-exclusive, non-royalty-bearing, perpetual (subject to the terms set forthin Section 13 below) license to:

 

a)modify the Software and merge or combine the Software or any part thereofinto or with other computer programs to form a Derivative Product;

b)modify, prepare and enhance Derivative Products based on the Software and/orthe Source Materials;

c)use internally for its own business purposes or on behalf of any third partyany such Derivative Product; and

d)market, distribute (directly or through third parties), support and sublicenseany such Derivative Product in object code form;

 

provided,however, that any Derivative Product created by OPNET shall not diminish orotherwise affect RadView’s pre-existing rights in the Software and the SourceMaterials and any and all intellectual property embodied thereby or embeddedtherein; and provided further, however, that OPNET shall market, distribute,use, sublicense and support the Software and the Derivative Products solelyunder OPNET’s brands and using product names which shall not be similar to orlikely to be confused with the RadView names for the Software. To that end,OPNET shall re-brand the Software and/or Derivative Products, as applicable,including, without limitation, revising the splash screen, documentation andsimilar RadView-branded areas to reflect the OPNET branding; provided, however,that any Software and Derivative Products used, sublicensed, marketed,supported or distributed by OPNET shall retain the copyright and otherproprietary legends of RadView’s object code and source code in the form asdelivered under this Agreement unless such form is determined by OPNET tobe unreasonable.

 

4.2           License to Copy.   Subjectto OPNET’s compliance with the terms and conditions of this Agreement,including the license terms set forth in this Section, and contingent uponOPNET’s payment to RadView in full of the Source Materials License Fee, RadViewhereby grants to OPNET a non-exclusive, non-royalty-bearing, perpetual (subjectto the terms set forth in Section 12.1 below),  license to

a)copy the Source Materials to the extent necessary to exercise the rights granted under this Agreement; and

b)copy the Derivative Products to the extent necessary to allow use anddistribution of the Derivative Products pursuant to the rights granted underthis Agreement;

provided,however, that each copy of the Source Materials and the Derivative Products, orany part thereof, shall reproduce the copyright and other proprietarylegends as described in Section 4.1 above.

 

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4.3           Source Code License for Derivative Products.   (a) Commencingon the first anniversary of the Effective Date, and subject in each instance toRadView’s rights as the owner of full right and title to the Source Materialsand the intellectual property embodied thereby or embedded therein, OPNET shallbe entitled to grant a source code license with respect to all or any portionof one or more Derivative Products subject to the conditions described herein; (b) anysource code license granted by OPNET under this Section 4.3 shall:  (i) require that the licensee include inall copies of the Derivative Product source code copyright and otherproprietary legends of RadView included in the source code or DerivativeProduct source code licensed, (ii) require that the third party licensee’suse of the Derivative Product source code shall be according to the terms of awritten license agreement issued by OPNET consistent with the terms of thisAgreement and, that includes an acknowledgement by the licensee of thepre-existing proprietary and intellectual property rights of RadView in theDerivative Product source code, (iii) requires the licensee to protect theconfidentiality of, and the proprietary rights of RadView in, the  Derivative Product source code using the samedegree of care it uses to protect its own confidential information but in nocase less than a reasonable degree of care, and (iv) shall irrevocablyrelease RadView of any liability to the licensee or to any third party claimthrough such licensee.

 

4.4           Non-Competition Agreement.   (a) Fora period of five (5) years after the Effective Date, and subject to theexceptions below OPNET shall not: (i) assign this Agreement, or (ii) directlymarket or license a source code license for any Derivative Product to anyentity listed on Exhibit B. Exhibit B may be amended upon themutual agreement of the parties. (b) For a period of two (2) yearsafter the Effective Date, and subject to the exceptions below, OPNET shall not:(i) assign this Agreement or (ii) directly market or license a sourcecode license for any Derivative Product to any entity listed on Exhibit C.(c) In the event that any court determines that the duration of Section 4.4(a) or4.4(b) is unreasonable, and to such extent is unenforceable, OPNET andRadView agree this section shall remain in effect for the greatest timeperiod that would not render it unenforceable but in no event beyond theduration specified herein. Either party however, shall have the right at anytime to assign or transfer this Agreement or any interest herein (includingrights and duties of performance), upon written notice to the other party, toany entity: (i) which acquires all or substantially all of such party’soperating assets, (ii) which acquires more than 50% of such party’s issuedand outstanding shares, (iii) which is under common ownership or controlwith a party to this Agreement, or (iv) into which a party to thisAgreement is merged or reorganized pursuant to any plan of merger orreorganization.

 

**5.****            ****Services to be Provided byRadView.**

 

5.1           Transfer of Knowledge.   Fora period of eight (8) consecutive weeks following the Effective Date (sucheight week period, the “Knowledge Transfer Period”), and provided that OPNETpays timely and in full the Initial Services Fee identified in Section 7below, RadView shall make available to OPNET the professional services of three(3) RadView employees, each of whom shall be knowledgeable in the sourcecode for the Software, and qualified to provide Services  to OPNET with respect to the Source Materials(the “Knowledge Transfer Consultants”) and each of whom shall be dedicated toOPNET on a full time basis (assuming an eight (8) hour workday, during theIsraeli or United States work week, as applicable based on the venue ofthe  Knowledge Transfer Consultants whenperforming the Services, and subject to the RadView paid holidays identified inExhibit D hereto) during the Knowledge Transfer Period. Each suchemployee, and any other RadView employee who may perform professionalservices for OPNET in connection with this Agreement, shall be hereinafterreferred to as a “Knowledge Transfer Consultant” or a “Training Consultant”. TheKnowledge Transfer Consultants shall provide Services on a time and materialbasis and work under the direction of OPNET to provide one or more of thefollowing services (collectively, the “Services”):  (i) knowledge transfer with respect tothe Source Materials, (ii) creation of the “build environment”, includingfull test system and all existing test cases for API and UI testing (as well asthe source code for any custom developed build or test tools), (iii) support OPNET’s use of the Source Materials, and general technical support toOPNET in its use of the Source Materials, (iv) development tasks and workrelated to Derivative Product(s) as directed by OPNET, and (v) such otherprofessional services permitted under this Agreement related to the SourceMaterials and/or the Derivative Product(s). During the KnowledgeTransfer period, OPNET may, at its sole discretion elect to use portions of theServices described in this Section 5: (a) to extract additionalportions of the Source Material revision control history, including but not limitedto any file versions in between the Major Releases of the Software generallydistributed by RadView, as well as any “check-in comments” and “change logs”associated with those file versions, limited to the 48 months prior to theEffective Date, and as late as the payment date

 

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specified under Section 7.2 for the fourth installment payment ofthe Initial Services Fee. RadView shall deliver this additional material toOPNET at such times designated by OPNET prior to the expiration of theKnowledge Transfer period and/ or (b) to conduct training related to the SourceMaterials for OPNET’s field personnel and support personnel. Any suchtraining services shall be provided by an employee of RadView, other than aKnowledge Transfer Consultant, qualifiedto provide training services and whose place of employment for RadViewis in the United States (the “Training Consultant”). Training services underthis Agreement shall not exceed ten (10) staff days, whether usedconcurrently or not. The fee for each staff day of training services shall beat the rate stated in Section 7.3. TheKnowledge Transfer Consultants and the Training Consultant shall be chosen byRadView, in its sole discretion provided that each Consultant has thequalifications defined above. RadView further reserves the right, at any time,to replace any individual  KnowledgeTransfer Consultant or Training Consultant with a similarly qualified RadViewemployee provided that RadView shall take commercially reasonable measures toeffect any such replacement in a manner calculated to cause minimal disruptionto the provision of the Services. Upon RadView’s receipt of a good faithrequest by OPNET, RadView shall promptly replace any individual KnowledgeTransfer Consultant or Training Consultant with a similarly qualified RadViewemployee in a manner calculated to cause minimal disruption to the provision ofthe Services.

 

5.2           No Warranty on Services.   RadViewshall provide the Services under this Agreement on a time and materials basis. RadViewmakes no warranties or representations, express or implied, oral or written,with respect to the Services provided under this Agreement, whether to OPNET orto any other entity. RadView expressly disclaims any and all warranties withrespect to such Services, including, without limitation, any implied warrantiesor those arising out of usage of trade.

 

5.3           Venue for Services and Consultant’s Bonus.   TheServices to be performed by the Knowledge Transfer Consultants or the TrainingConsultant may, at the direction of OPNET, be performed on site at any of OPNET’soffices or from RadView’s offices; provided, however, that Israel basedKnowledge Transfer Consultants shall not be required to work on site at anOPNET site in the United States for more than three (3) consecutive weeksin any four (4) week period; each Knowledge Transfer Consultant who worksnot less than forty hours each week for three (3) or more consecutiveweeks on site at an OPNET site in the United States shall be paid a bonuscalculated at the rate of ONE THOUSAND DOLLARS ($1,000 ($US)) for eachconsecutive week of work. For example, if a Knowledge Transfer Consultant worksthree (3) consecutive weeks at an OPNET site in the United States, theKnowledge Transfer Consultant is entitled to a $3,000 bonus; if the KnowledgeTransfer Consultant works two consecutive weeks no bonus has been earned. Themaximum bonus payable to any Israel based Knowledge Transfer Consultant underthe terms of this section during any four consecutive week period shall beFOUR THOUSAND DOLLARS ($4,000 (US)). OPNET shall use its best effort toforecast travel requirements in advance and shall provide not less than five (5) daysadvance notice to a Consultant of any travel requirement and shall include therequired arrival date at the site designated by OPNET. RadView hereby confirmsthat the passports of the Consultants are and shall remain current and validduring the Knowledge Transfer Period. RadView further waives any rights it may haveto prevent the travel of a Consultant to an OPNET site in the United States.

 

5.4           Extension of Knowledge Transfer Period.   OPNETshall have the right, in its sole discretion, to elect a one-time extension tothe Knowledge Transfer Period for any one or more of the three (3) Consultants,upon written notice to RadView; provided that any such extension shall notcontinue the Knowledge Transfer Period beyond March 30, 2006. The noticeto RadView must be delivered at least seven (7) days prior to theexpiration of the original Knowledge Transfer Period and shall specify thelength of the extension elected by OPNET and the number of Consultant(s) towhom OPNET would like the extension to apply. The Additional Service feesapplicable to any such extension are as set forth in Section 7 below.

 

5.5           Insurance During Knowledge Transfer Period.   During theKnowledge Transfer Period when Consultants are providing services on OPNET’spremises (including extensions by OPNET pursuant to the terms of Section 5.4),OPNET shall maintain comprehensive general liability insurance, including broadform property damage coverage, with limits of at least one million U.S.Dollars each for personal injury and property damage for each occurrence.

 

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**6.****            ****ProprietaryRights.**

 

6.1           Derivative Products.   (a) Asbetween RadView and OPNET and excluding the Source Materials, OPNET shall bethe sole owner of all right, title and interest in and to, any DerivativeProduct developed by OPNET in accordance with this Agreement, and any othersoftware prepared by OPNET in connection with the Source Materials and/or OPNET’sexercise of its rights under this Agreement. RadView shall not acquire anyright, title, or interest in or to such Derivative Product(s); provided,however, that any Derivative Product or other materials created by OPNET shallnot diminish, qualify or otherwise affect RadView’s pre-existing rights in theSoftware and Source Materials. (b) Nothing in this Agreement shallbe construed as limiting the independent development of products and/orservices by the parties hereto. Each party hereto acknowledges that the othermay, as of the Effective Date or at any time thereafter, engage in or pursuethe independent development of products and/or services which are the same asor similar to actual or planned activities and/or products and services of theother party hereto. Each party acknowledges and agrees that the other party’sindependent development activities with respect to the Source Materials orsimilar products and/or services shall not in and of itself be determined toviolate the terms of this Agreement. Nothing in this Section 6.1 shall bedeemed to grant any ownership, distribution, license, sublicense or any otherrights to use a party’s intellectual property except as expressly providedherein; this section does not waive either party’s statutory intellectualproperty rights for patents, copyrights, trademarks, trade secrets or otherintellectual property.

 

6.2           Trademarks.   Nothing in this Agreementshall be construed as giving either party any right to use any trademark,service mark, trade name, logo, designation or other identifier of the otherparty at any time during or after the term of this Agreement. OPNET shallre-brand any Software or Derivative Products which it markets, makes availableto third parties or which it uses internally pursuant to the provisions ofSections 4.1, 4.2, and 4.3 above.

 

# 6.3           Limited Transfer of Rights.   Exceptas expressly set forth in Section 3 above, the parties agree that nothingin this Agreement is intended or should be construed as transferring ownershiprights of any kind from one party to the other with respect to any intellectualproperty held or developed by either party.

#  

**7.****            ****Economic Terms.**

 

7.1           Source Code License Fee.   Inconsideration for the license rights granted under Section 4 above and anon-exclusive, non-royalty-bearing, perpetual (subject to the terms set forthin Section 13.1 and 13.2 below) license to all patents in the Software orthe Source Materials, OPNET shall remit to RadView a Source Code License Fee inthe amount of THREE HUNDRED TEN THOUSAND DOLLARS  ($310,000($US)). Such amount shall bepayable, in full, upon the Effective Date.

 

7.2           Initial Services Fee.   Inconsideration for the Services being made available to OPNET pursuant to Section 5.1above, OPNET shall remit to RadView an Initial Services Fee in the amount ofTWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000 ($US)). Such amounts shall be dueand payable in four installments as follows:

 

•                  FIFTY THOUSAND DOLLARS ($50,000($US)) shallbe due and payable on the Effective Date;

•                  FIFTY THOUSAND DOLLARS ($50,000($US)) shallbe due and payable on December 19, 2005;

•                  FIFTY THOUSAND DOLLARS ($50,000($US)) shallbe due and payable on January 2, 2006; and

•                  ONE HUNDRED THOUSAND DOLLARS ($100,000 ($US))shall be due and payable on January 16, 2006;

 

provided,however, that in the event the Consultants, or any one of them, (a) isunwilling to travel to the United States to perform the Services, (b) doesnot respond in a reasonable timeframe (as evaluated against the nature of therequest and taking into account the effect of potentially different timezones), or (c) is not qualified to provide any of the Services (it beingunderstood that each of the Consultants may be bringing different areas ofexpertise to bear in support of the Services), then in any such event, thepayment schedule for the installments due and payable on December 19,2005, January 2, 2006, and January 16, 2006 shall be revised asfollows:

 

•                  The second installment shall be due andpayable on January 2, 2006;

•                  The third installment payment shall be dueand payable on January 16, 2006; and

 

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•                  The fourth installment payment shall be dueand payable on January 30, 2006.

 

7.3           Additional Service Fees.   Inthe event that OPNET elects to extend the Knowledge Transfer Period pursuant tothe provisions of Section 5.3 above, OPNET shall remit to RadView anamount equal to ONE THOUSAND TWO HUNDRED DOLLARS ($1,200($US)) for eachadditional staff day included in the extension (e.g., an extension of tenbusiness days to the Knowledge Transfer Period with respect to two Consultantswould entail an additional Services fee of $24,000 (10 days x two consultants x$1,200)). The Service fees for the initial Knowledge Transfer Period and forany extension thereof are based on an eight (8) hour day. Service hours inexcess of eight (8) hours per day shall be invoiced at a rate of $175($US) per hour. The additional Service fee associated with the extension to theKnowledge Transfer Period shall be invoiced at the conclusion of each weekduring which additional services were completed after the expiration of theoriginal Knowledge Transfer Period (e.g., using the example above of a ten dayextension for two consultants, an additional Services fee of TWELVE THOUSANDDOLLARS ($12,000 ($US) would be invoiced at the conclusion of each successiveweek after the expiration of the original Knowledge Transfer Period, for atotal consideration of TWENTY-FOUR THOUSAND DOLLARS ($24,000 ($US)), payable asdescribed in Section 7.5). Additional Service hours (i.e., hours in excessof eight (8) hours for any staff day during the Knowledge Transfer Periodor any extension thereof) shall be performed only with the prior writtenconsent of OPNET.

 

7.4           Consultant’s Bonus and Travel Expenses.   OPNETshall be responsible for: (a) reimbursing RadView for Consultant Bonusamounts determined under Section 5.3 and actually paid by RadView toKnowledge Transfer Consultants, and (b) all reasonable travel-relatedexpenses incurred by RadView in connection with the performance of the Servicesprovided that (i) such expenses are consistent with  travel expense guidelines set forth in Exhibit Ehereto, and (ii) the travel has been pre-approved in writing by orscheduled with the written consent of OPNET. OPNET shall not be liable forreimbursing RadView for any international travel-related expenses incurred bythe Training Consultant.

 

7.5           Payment Terms.   (a) Exceptingpayments required under Sections 7.1 and 7.2, all invoices submitted by RadViewshall be due and payable within thirty (30) days following invoice receipt. Thefees set forth above do not include any applicable taxes or duties. OPNET andRadView shall each be responsible for such taxes to the extent required by law.All invoices, fees and payments shall be stated and paid in United Statesdollars. (b) All payments required by OPNET under Sections 7.1 and7.2 shall be by wire transfer of immediately available funds to an accountdesignated in writing by RadView.

 

**8.****            ****Protection of ConfidentialInformation.**

 

8.1           Definition ofConfidential Information.   Duringthe term of this Agreement, either party may disclose to the other certainproprietary or confidential information, including without limitationinformation relating to the disclosing party’s business, products, services,finances, customers or strategies (“Confidential Information”). ConfidentialInformation may include technical information and may be in tangibleor intangible form. All Confidential Information will be marked as confidentialor proprietary at the time of disclosure or, in the case of oral disclosure,will be designated as confidential at the time of disclosure and promptlyconfirmed in writing thereafter; provided, however, that the Source Materialsand any materials reflecting or incorporating the Source Materials (in whole orin part) shall be deemed Confidential Information whether or not expresslydesignated as such. In addition, information which by the nature of its contentand the circumstances of its disclosure would reasonably be understood to bethe confidential and/or proprietary information of the disclosing party shallbe treated as Confidential Information by the receiving party. The term “ConfidentialInformation” shall not include information that (a) is in the publicdomain or which enters the public domain other than through an action of thereceiving party, (b) is published or otherwise made known to the public bythe disclosing party, (c) is lawfully known to or in the possession of thereceiving party prior to its receipt hereunder, provided that the informationwas not received from the disclosing party or a third party with an obligationof confidentiality to the disclosing party.

 

8.2           Obligations to Protect ConfidentialInformation.   Each party agrees to protect the ConfidentialInformation it receives from the other party with the same degree of care ituses to protect its own Confidential Information but in no case less than areasonable degree of care. OPNET shall treat all RadView source code receivedunder this Agreement with the same degree of care as OPNET uses to protect itsown source code but in

 

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nocase less than a reasonable degree of care; OPNET may disclose source codereceived under this Agreement on a need to know basis to any person or entityfor legitimate business reasons, as determined by OPNET, provided the partyreceiving access to the source code has entered into a written nondisclosureagreement with OPNET containing terms as least as restrictive as thenondisclosure obligations in this Agreement. Each party further agrees to hold inconfidence and not to disclose or reveal to any person or entity anyConfidential Information disclosed by the other party hereunder without theclear and express prior written consent of a duly authorized representative ofthe disclosing party provided, however, that any party may make any publicdisclosure it believes in good faith is required by applicable law, regulationor stock market rule. The receiving party further agrees not to use or discloseany of the Confidential Information of the disclosing party for any purpose atany time, other than for the limited purpose(s) for which the disclosure wasmade as contemplated by this Agreement. Except as provided in Sections 8.3 and8.4 below, each party agrees that disclosure of the other party’s ConfidentialInformation shall be strictly limited to disclosure to employees or independentcontractors with a need to know the information for the purposes of thisAgreement, and each party agrees that each such employee or independentcontractor will be informed of the confidential and/or proprietary nature ofthe information and will be bound, prior to disclosure, by a written agreementcontaining substantially the same confidentiality terms as those in this Section 8.Nothing in this Section 8 shall be construed to prohibit the disclosure ofthe Software, Source Materials, Derivative Products or Derivative Productsource code by OPNET to an escrow agent or other third party who is subject toa written agreement containing substantially the same confidentiality terms asthose in this Section 8.

 

8.3           Required Disclosure.   Inthe event that either party is required to disclose any portion of anyConfidential Information of the other party or any other materials proprietaryto the other party in conjunction with a judicial or administrative proceeding,the party so directed shall immediately notify the other party both orally andin writing. Each party agrees to provide the other with reasonable cooperationand assistance in obtaining a suitable protective order and in taking any othersteps to preserve confidentiality of the Confidential Information which isrequired to be disclosed.

 

8.4           No Publicity.   Unlessand until the terms of the Agreement are publicly disclosed by either party ina filing made with the United States Securities Exchange Commission,information relating to the substance and/or terms of this Agreement shall bedeemed Confidential Information, and neither party shall disclose suchinformation to third parties without the prior written consent of the other;provided, however, that each party shall be entitled to disclose, on a limitedbasis as possible in any discussions with analysts, current customers,prospective clients or government regulators or to comparable parties, thenature and scope of the relationship, the respective roles of the parties, thedeliverables, services to be provided, and the fees payable to RadView.

 

8.5           Pre-Existing Non-Disclosure Agreement.   Nothingset forth herein shall be construed to diminish or qualify the obligationsundertaken by the parties pursuant to the mutual non-disclosure agreementpreviously executed between the parties but rather, such agreement shall remainin full force and effect.

 

**9.****            ****Representations and Warranties.**

 

9.1           Authority to Enter into Agreement.   Byits execution of this Agreement, each party represents and warrants that it hasthe full right and authority to enter into this Agreement and that it iscapable, prepared and intent on meeting its obligations and responsibilitieshereunder.

 

9.2           Intellectual Property Warranty.   RadViewwarrants that it holds full right and title to the Source Materials, with theexception of any third party source materials which may be included withinthe Source Materials and which shall be disclosed in writing to OPNET asdescribed in Section 12.4. RadView further warrants that, to RadView’sknowledge and subject to OPNET’s obtaining any required third party licensesthere is no third party right which would interfere with or burden OPNET’sexercise of its rights hereunder. OPNET agrees that its sole and exclusiveremedy for any breach of the foregoing warranties shall be as set forth in Section 10.1below. OPNET further acknowledges and agrees that the foregoing warranties byRadView do not apply to any third party intellectual property issue arising outof any modification or extension of or to the Source Materials or the Softwarecaused by OPNET or by any third party contractor of OPNET and which would notexist but for such modification(s) and/or extension(s).

 

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9.3           No Warranty on Source Materials.   Subjectto the limited warranties set forth in Section 9.2 above, OPNETacknowledges and agrees that RadView is delivering the Source Materials “AS IS”without warranty of any kind, whether express or implied. RadView expresslydisclaims any and all warranties with respect to such Source Materials,including, without limitation, any implied warranties or those arising out ofusage of trade. OPNET furtheracknowledges and agrees that, except as otherwise expressly set forth withrespect to the Services identified in Section 5 above, RadView’sobligations under Sections 8 and 10, and the additional undertakings of RadViewset forth in Section 12 below, RadView shall have no further obligation toOPNET with respect to the Software or the Source Materials.

 

9.4           No Warranty on Services.   RadViewmakes no warranties or representations, express or implied, oral or written,with respect to the Services provided under this Agreement, whether to OPNET orto any other entity. RadView expressly disclaims any and all warranties withrespect to such Services, including, without limitation, any implied warrantiesor those arising out of usage of trade.

 

**10.****         ****Indemnification Obligations.**

 

10.1         Indemnification of OPNET by RadView for ThirdParty Claims.   Subject to the Limitations of Section 11,RadView shall indemnify and hold OPNET (and all of its officers, employees,directors, consultants, contractors and agents) harmless from and with respectto any loss, expense, costs, damages (including reasonable attorneys’ fees andcosts) or other liability, arising out of or relating to any claim, demand,suit or proceeding brought by a third party (individually and collectively, a “Claim”)against OPNET (or any of its officers, employees, directors, consultants,contractors and agents) insofar as such Claim, shall be based upon or arise outof (a) a breach by RadView of its obligations under this Agreement, or (b) analleged or actual violation of third party intellectual property rights by theSource Materials (in the form provided by RadView to OPNET and exclusiveof any third party source materials which may be included therewith). OPNETshall give RadView prompt written notice of any such Claim and control over thedefense and settlement of such claim (provided that RadView will not enter intoany settlement which imposes any obligations or constraints on OPNET withoutthe prior written consent of OPNET), and shall provide at RadView’s expensereasonable cooperation and assistance as RadView may request from time totime in the defense thereof. OPNET shall have the right, but not theobligation, to participate in such litigation or proceeding at its sole expensethrough counsel of its own choosing.

 

10.2         Indemnification of RadView by OPNET for ThirdParty Claims.   Subject to the limitations of Section 11,OPNET shall indemnify and hold RadView (and all of its officers, employees,directors, consultants, contractors and agents) harmless from and with respectto any loss, expense, costs, damages (including reasonable attorneys’ fees andcosts) or other liability, arising out of or relating to any claim, demand,suit or proceeding brought by a third party (individually and collectively, a “Claim”)against RadView (or any of its officers, employees, directors, consultants,contractors and agents) insofar as such Claim, shall be based upon or arise outof (a) a breach by OPNET of its obligations under this Agreement, or (b) thecreation, use, modification, support or distribution of a Derivative Product byOPNET or a third party to whom OPNET has provided access or authority to usethe Source  Materials, to the extent suchClaim is not covered by clause (b) of Section 10.1 above. RadViewshall give OPNET prompt written notice of any such Claim and control over thedefense and settlement of such claim (provided that OPNET will not enter intoany settlement which imposes any obligations or constraints on RadView withoutthe prior written consent of RadView), and shall provide at OPNET’s expensesuch reasonable cooperation and assistance as OPNET may request from timeto time in the defense thereof. RadView shall have the right, but not theobligation, to participate in such litigation or proceeding at its sole expensethrough counsel of its own choosing.

 

10.3         Indemnification of Employment Claims.   OPNETshall indemnify and hold RadView harmless against any and all claims which may bebrought against RadView (and/or any of its officers, employees, directors,consultants, contractors and agents) by one or more Consultants based onactions or failures to act by OPNET with respect to such Consultant’s provisionof the Services, including, without limitation, claims by a Consultant ofsexual harassment or sexual or other prohibited discrimination by OPNET;provided, however, that OPNET shall have no obligation under the terms of thisparagraph in the event the Consultant’s claim is based on the action or failureto act by RadView.

 

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**11.****         ****Limitation of Liability andExclusion of Consequential Damages.**

 

NOTWITHSTANDINGANYTHING STATED IN THIS AGREEMENT TO THE CONTRARY IN NO EVENT SHALL RADVIEW BELIABLE TO OPNET OR TO ANY THIRD PARTY CLAIMING DIRECTLY OR THROUGH OPNET FORANY DAMAGES OF ANY KIND, OR UNDER ANY CIRCUMSTANCES, INCLUDING WITHOUTLIMITATION, (A) ANY INCIDENTAL INDIRECT, PUNITIVE, OR SPECIAL DAMAGES, OR (B) ANYDAMAGES WHATSOVER RESULTING FROM LOSS OF USE, DATA, REVENUES, BUSINESS ORPROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, IN EITHEREVENT ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR THE SOURCEMATERIALS AND/OR THE SOFTWARE, EVEN IF RADVIEW HAD BEEN APPRISED OF THELIKELIHOOD OF SUCH DAMAGES OCCURRING.

 

NOTWITHSTANDINGANYTHING STATED IN THIS AGREEMENT TO THE CONTRARY IN NO EVENT SHALL OPNET BELIABLE TO RADVIEW OR TO ANY THIRD PARTY CLAIMING DIRECTLY OR THROUGH RADVIEWFOR ANY DAMAGES OF ANY KIND, OR UNDER ANY CIRCUMSTANCES, INCLUDING WITHOUTLIMITATION, (A) ANY INCIDENTAL INDIRECT, PUNITIVE, OR SPECIAL DAMAGES, OR (B) ANYDAMAGES WHATSOVER RESULTING FROM LOSS OF USE, DATA, REVENUES, BUSINESS ORPROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, IN EITHEREVENT ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR THE SOURCEMATERIALS AND/OR THE SOFTWARE, EVEN IF OPNET HAD BEEN APPRISED OF THELIKELIHOOD OF SUCH DAMAGES OCCURRING.

 

**12.****         ****Additional Obligations ofRadView.**

 

12.1         Export Control Information.   Promptlyfollowing RadView’s receipt of the Source Code License Fee, RadView shallprovide to OPNET any existing export control certificates, productclassification documents, export review applications for the Software issued bythe Israeli or United States governments.

 

12.2         RadView Employees.   Promptly following RadView’s receipt of theSource Code License Fee, RadView shall provide to OPNET a list of the names andtitles of employees who have left the employment of RadView during the twelve(12) month period preceding the Effective Date. For any former or currentRadView employee hired by OPNET under conditions that do not violate Section 12.3,RadView shall waive any post-employment noncompete restrictions or otherrestrictions that would prohibit the former employees from working for OPNET oron the Source Materials or OPNET’s Derivative Product(s). For purposes of this Section 12.2,employees will be deemed to have left the employment of RadView if they are nolonger employed by RadView or a RadView affiliate.

 

12.3         Restrictive Covenant Pertaining to RadViewEmployees.   (a) OPNET shall not directly orindirectly solicit or permit any organization on its behalf to directly orindirectly solicit for employment (or for work as an independent contractor)any employee of RadView. Provided there is no violation of Section 12.3(a) above,OPNET is allowed to hire up to three (3) RadView current employees. Allprohibitions and restrictions applicable to OPNET under this Section 12.3shall terminate upon the earlier of three (3) months after the completionof the Knowledge Transfer Period including any extensions thereto permittedunder this Agreement, or the date RadView files for bankruptcy or is thesubject of an involuntary bankruptcy or has all assets assigned for the benefitof creditors.

 

12.4         Third Party Vendors for Software.   Attachedhereto as Exhibit F is a list of the third party components and technologyused by RadView to create, support and distribute the Software, including,without limitation, the third party tools used for key generation anddistribution. RadView warrants that Exhibit F attached hereto is true andcorrect as of the Effective Date, and that it contains a comprehensive listingof third party components and technology for the Software as distributed byRadView on the Effective Date. Exhibit F shall list the third partycomponents and technology according to the following categories:  Used for WebFT or Used for WebLOAD. On orbefore January 6, 2006, and using its “best effort”, RadView shall deliverto OPNET a revised Exhibit F that shall also include a listing of thirdparty components and technology used by RadView to create, support anddistribute the Software during the 48 months immediately preceding theEffective Date.

 

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Uponreceipt by OPNET the revised Exhibit F shall amend this Agreement andshall be incorporated herein by this reference.

 

12.5         OEM Agreement Amendment and Termination.   As amaterial condition of this Agreement, RadView and OPNET shall amend the OEMAgreement dated June 30, 2003 by and between Altaworks Corporation andRadView substantially in the form of the amendment attached hereto as Exhibit G.

 

**13.****         ****Termination.**

 

13.1         Termination Prior to Delivery of Deliverables andExpiration of Knowledge Transfer Period.   Atany time prior to the latter of: (a) delivery of all Source Materialsdescribed in Section 3 or (b) the expiration of the KnowledgeTransfer Period, either party may terminate this Agreement upon writtennotice in the event one party breaches a material term in this Agreement andfails to cure the breach(es) identified in a written notice to the breachingparty within twenty (20) days (the “20-day Cure Period”) following the date ofsuch written notice, and further provided that the breach(es) remain ongoing asof the end of the 20-day Cure Period. Termination of this Agreement by RadViewunder this Section 13.1 shall not relieve OPNET of its obligation to payto RadView the fees identified in Section 7.

 

13.2         Termination by RadView or OPNET.   Upon expiration of the termination rightsunder Section 13.1, either party may terminate this Agreement uponwritten notice in the event one party breaches a material term in thisAgreement and fails to cure the breach(es) identified in a written notice tothe breaching party within forty-five (45) days (the “45-day Cure Period”)following the date of such written notice, and further provided that thebreach(es) remain ongoing as of the end of the 45-day Cure Period.

 

13.3         Damagesand Limitation of Damages.   If abreach of this Agreement occurs that cannot be cured within the cure periodunder Section 13.1 or 13.2 the breaching party shall be liable for theactual damages of the nonbreaching party but not to exceed ONE MILLION DOLLARS($US). Excepting breaches of this Agreement that are the direct result of badfaith conduct the nonbreaching party’s sole remedy under this section shallbe the recovery of actual damages subject to the limitations herein. TheLimitation of Damages under this Section shall not apply to a materialbreach of this Agreement that is the direct result of bad faith conduct by thebreaching party.

 

13.4         Survival of Terms.   Those terms which, by their nature, would bereasonably understood to survive any expiration or termination of thisAgreement shall so survive, including Sections 2, 6, 7-11, 13.4, and 14.

 

**14.****         ****Miscellaneous.**

 

14.1         Entire Agreement.   ThisAgreement constitutes the entire understanding and agreement between theparties hereto and supersedes any and all prior or contemporaneousrepresentations, understandings and agreements between OPNET and RadView withrespect to the subject matter hereof, all of which are merged herein. Notwithstandingthe foregoing, the parties understand and agree that any confidentiality agreementsbetween the parties are separate from this Agreement, and, except as may beexpressly stated herein, nothing contained in this Agreement shall be construedas affecting the rights or obligations of either party set forth in any suchagreement. It is expressly understood and agreed that no employee, agent orother representative of either party has any authority to bind such party withregard to any statement, representation, warranty, or other expression unlessthe same is specifically set forth or incorporated by reference herein. It isexpressly understood and agreed that, there being no expectation of thecontrary between the parties hereto, no usage of trade or custom and practicewithin the industry, and no regular practice or method of dealing between theparties hereto, shall be used to modify, supplement or alter in any manner theterms of this Agreement or any part hereof. This Agreement shall not bemodified, amended or in any way altered except by an instrument in writingsigned by an officer of RadView and an officer of OPNET.

 

14.2         Independent Parties. Nothing contained herein shall be deemed tocreate or construed as creating a joint venture or partnership between OPNETand RadView. Neither party is, by virtue of this Agreement or otherwise,authorized as an agent or legal representative of the other party. Neitherparty is granted any right or authority to assume or to create any obligationor responsibility, express or implied, on behalf of or in the name

 

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ofthe other party or to bind such other party in any manner. Further, it is notthe intention of this Agreement or of the parties hereto to confer a thirdparty beneficiary right of action upon any third party or entity whatsoever, andnothing hereinbefore or hereinafter set forth shall be construed so as toconfer upon any third party or entity other than the parties hereto a right ofaction under or in connection with this Agreement.

 

14.3         Waiver.   No waiver of any provision ofthis Agreement or any rights or obligations of either party hereunder shall beeffective, except pursuant to a written instrument signed by the party orparties waiving compliance, and any such waiver shall be effective only in thespecific instance and for the specific purpose stated in such writing.

 

14.4         Amendments.   All amendments ormodifications of this Agreement shall be binding upon the parties despite anylack of consideration so long as the same shall be in writing and executed bythe parties hereto in accordance with the other terms of this Agreementregarding modifications.

 

14.5.        Severability of Provisions.   Inthe event that any provision hereof is found invalid or unenforceable pursuantto judicial decree or decision, the remainder of this Agreement shall remainvalid and enforceable according to its terms.

 

14.6.        Assignment.   Except as otherwise permittedunder this Agreement neither party shall have the right to, and each partycovenants that it will not, assign or transfer this Agreement or any of itsrights, duties or obligations hereunder for a period of one (1) yearfollowing the Effective Date of the Agreement. Either party however, shall havethe right at any time after the Effective Date to assign or transfer thisAgreement or any interest herein (including rights and duties of performance),upon written notice to the other party, to any entity: (i) which acquiresall or substantially all of such party’s operating assets, (ii) whichacquires more than 50% of such party’s issued and outstanding shares, (iii) whichis under common ownership or control with a party to this Agreement, or (iv) intowhich a party to this Agreement is merged or reorganized pursuant to any planof merger or reorganization.

 

14.7         Choice of Law; Forum and Jurisdiction.   ThisAgreement was entered into in the Commonwealth of Massachusetts, and itsvalidity, construction, interpretation and legal effect shall be governed bythe laws and judicial decisions of the Commonwealth of Massachusetts applicableto contracts entered into and performed entirely within Massachusetts. Theparties expressly agree that any action arising out of or relating to thisAgreement shall be filed and maintained only in the courts of the State ofMassachusetts for the County of Middlesex, or the United States District Courtfor Middlesex County. The parties hereby consent and submit to the personaljurisdiction of such courts for the purposes of litigating any such action.

 

14.8         Attorneys’ Fees.   Inthe event any litigation or other proceeding is brought by either party arisingout of or relating to this Agreement, the prevailing party in such litigationor other proceeding shall be entitled to recover from the other party allcosts, attorneys’ fees and other expenses incurred by such prevailing party insuch litigation or proceeding.

 

14.9         Force Majeure.   Neitherparty shall be deemed in default if its performance or obligations hereunderare delayed or become impossible or impractical by reason of any act of God,war, fire, earthquake, labor dispute, accident, civil commotion, epidemic, actof government or government agency or officers, or any other cause beyond suchparty’s control.

 

14.10       Counterparts.   ThisAgreement may be executed in counterparts, each of which shall be deemedan original and all of which together shall constitute one and the sameinstrument. The signature on any counterpart which is transmittedby facsimile to the other party shall be deemed the same as an originalsignature.

 

14.11       Notices.   Notice to either party to thisAgreement shall be deemed received on the day of delivery if delivered, withconfirmation of receipt, by electronic facsimile, by courier or by hand duringnormal business hours, and the following day if delivered after normal businesshours. Delivery of all notices shall be made to the following persons at therespective addresses of the parties first set forth above: for RadView, to theattention of its Chief Financial Officer (fax number (781) 238-8875); forOPNET, to the attention of Marc A. Cohen,

 

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Chairmanand CEO (fax number (240) 497-1060 with a copy to:  Corporate Counsel (fax number (301)497-1062).

 

EACHPARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY ANDREMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL BARGAINED FOR BASES OF THISAGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED INDETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENTAND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.

 

INWITNESS WHEREOF, the parties have executed this Agreement as of the date firstset forth above.

 

 
| OPNET  TECHNOLOGIES, INC. | RADVIEW  SOFTWARE, LTD.      |
|--------------------------------|------------------------------|
|                           |                         |
| By:                            | /s/  ALAIN COHEN             |   | By: | /s/  ILAN KINREICH |   |
| Name:  Alain Cohen             | Name:  Ilan Kinreich         |
| Title:  President and CTO      | Title:  President and CEO    |
| Date:  December 7, 2005   | Date:  December 7, 2005 |
|                                |                              |  |  |  |  |

 

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Exhibits:

 

#### A.Software

#### B.RadView Entity List – 5 Year  Prohibition

#### C.RadView Entity List – 2 Year Prohibition

#### D.RadView Paid Holidays 

#### E.OPNET’s Travel Expense Guidelines

#### F.Third Party Components and Technology

G. Amendment to OEM Agreement

 

###### **EXHIBIT A: SOFTWARE**

 

WebLOAD

 

AllUtility Programs associated with or distributed with WebLOAD

 

WebFT

 

AllUtility Programs associated with or distributed with WebFT

 

###### **EXHIBIT B: RADVIEW ENTITY LIST – 5-YEAR PROHIBITION**

 

**Compuware Corporation**and any subsidiary or affiliated company

 

The Rational Division of **International BusinessMachines Corporation (“IBM”)**

 

**Empirix Inc.**and anysubsidiary or affiliated company

 

**Mercury Interactive Corporation**and any subsidiary or affiliated company

 

**Segue Software, Inc.**andany subsidiary or affiliated company

 

**Wily Technology, Inc.**andany subsidiary or affiliated company

 

###### **EXHIBIT C: RADVIEW ENTITY LIST – 2-YEAR PROHIBITION**

 

**APPLABS Technologies Pvt. Ltd**

 

**Identify Software Ltd**.

 

**Radware Ltd**.

 

**Shunra Software Ltd**.

 

**Symantec Corporation/VERITAS SoftwareCorporation**

 

**EXHIBIT D: RADVIEW PAID HOLIDAYSDURING KNOWLEDGE TRANSFER PERIOD**

 
| **Date**                      | ** ** | **Name**                                             |
|-------------------------------|------------|------------------------------------------------------|
|                          |       |                                                 |
| Monday, January 2, 2006  |       | New Year’s Day (Observed)                       |
|                          |       |                                                 |
| Monday, January 16, 2006 |       | Dr. Martin Luther King, Jr. Day (Observed) |

 

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###### **EXHIBIT E: OPNET’S TRAVEL EXPENSEGUIDELINES**

 

TOBE PROVIDED 

 

**EXHIBIT F: THIRD PARTY COMPONENTS ANDTECHNOLOGY**

 

TOBE PROVIDED

 

###### **EXHIBIT G: OEM AGREEMENT AMENDMENT**

 

TOBE PROVIDED

 

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