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EXHIBIT 2.1
AMENDED AND RESTATED
ASSET PURCHASE AGREEMENT
BETWEEN
AIRSPAN COMMUNICATIONS CORPORATION
AND
DSC COMMUNICATIONS CORPORATION
January 22, 1998
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TABLE OF CONTENTS
1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. CONTRIBUTION OF INTANGIBLE RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. PURCHASE AND SALE OF ASSETS; ASSUMPTION OF LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(a) Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(b) Assumption of Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(c) Promissory Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4. THE CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(a) Time and Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(b) Deliveries at the Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. REPRESENTATIONS AND WARRANTIES OF SELLER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(a) Organization of DSC and Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(b) Authorization of Transaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(c) Noncontravention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(d) Brokers' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(e) Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(f) Proprietary Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(g) Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(h) Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(i) Compliance With Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(j) Accounts Receivable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(k) No Undisclosed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(l) Employee Benefit and Pension Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(m) Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(n) Inventory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(o) Absence of Certain Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(p) Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(q) Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6. REPRESENTATIONS AND WARRANTIES OF AIRSPAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(a) Organization of Airspan and Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(b) Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(c) Authorization of Transaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(d) Noncontravention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(e) Brokers' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(f) Shares to be Acquired by the Transferor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(g) Operations of Airspan and Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(h) Value Added Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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7. PRE-CLOSING COVENANTS OF DSC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(a) General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(b) Notices and Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(c) Operation of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(d) Full Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(e) Notice of Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(f) Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
8. PRE-CLOSING COVENANTS OF AIRSPAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(a) General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(b) Notices and Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(c) Notice of Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(d) Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(e) Contingent Stock Rights Adjustment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
9. POST-CLOSING COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(a) General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(b) Litigation Support . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(c) Transition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(d) No Solicitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(e) Transitions Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(f) Covenant Not to Compete . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(g) Stamp Duty and Registration Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(h) Value Added Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(i) Assignment of Existing Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(j) Derivative Works . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
10. CONDITIONS TO OBLIGATION TO CLOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(a) Conditions to Obligation of Airspan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(b) Conditions to Obligation of DSC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
11. REMEDIES FOR BREACHES OF THIS AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(a) Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(b) Indemnification Provisions for Benefit of Airspan . . . . . . . . . . . . . . . . . . . . . . . . . 20
(c) Indemnification Provision for Action by the Designated Party. . . . . . . . . . . . . . . . . . . . 21
(d) Indemnification Provisions for Benefit of DSC . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(e) Matters Involving Third Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(f) Determination of Adverse Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(g) Exclusive Remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(h) Other Limits on Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
12. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(a) Termination of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(b) Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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13. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(a) Press Releases and Public Announcements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(b) No Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(c) Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(d) Succession and Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(e) Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(f) Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(g) Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(h) Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(i) Attorneys Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(j) Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(k) Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(l) Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(m) Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(n) Incorporation of Exhibits and Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(o) Bulk Transfer Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Exhibit A Acquired Assets
Exhibit B Assumed Liabilities
Exhibit C Form of Promissory Note
Exhibit D-1 Form of U.K. Security Agreement
Exhibit D-2 Form of U.S. Security Agreement
Exhibit E Form of Contingent Stock Rights
Exhibit F Stock Purchase Agreement
Exhibit G Form of Assignment and Assumption Agreement
Exhibit H Form of Guaranty
Exhibit I Form of Intellectual Property Agreement
Exhibit J Form of Manufacturing Agreement
Exhibit K Form of First Refusal and Co-Sale Agreement
Exhibit L Form of Investor's Rights Agreement
Exhibit M Voting Agreement
Exhibit N Organizational Documents of Airspan, as amended to date
Exhibit O Organizational Documents of the Buyer, as amended to date
[IN ACCORDANCE WITH ITEM 601(B)(2) OF REGULATION S-K, THE EXHIBITS LISTED ABOVE
ARE OMITTED FROM THIS FILING AND WILL BE FURNISHED SUPPLEMENTALLY BY THE COMPANY
TO THE COMMISSION UPON REQUEST.]
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AMENDED AND RESTATED
ASSET PURCHASE AGREEMENT
This Agreement is entered effective as of January 22, 1998, by and
between Airspan Communications Corporation, a Delaware corporation ("Airspan"
or the "Transferee"), and DSC Communications Corporation, a Delaware
corporation ("DSC"). Airspan and DSC are referred to collectively herein as
the "Parties."
WHEREAS, DSC and Airspan have entered into that certain Asset Purchase
Agreement dated January 22, 1998 (the "Original Asset Purchase Agreement") and
the Parties desire to amend, restate and modify the Original Asset Purchase
Agreement in its entirety as set forth below;
WHEREAS, DSC, directly or indirectly through its Subsidiaries (as
hereinafter defined), operates a business in the United Kingdom concerning the
design and sale of certain fixed wireless local loop products, including the AS
60 and Vision ST products (the "Business");
WHEREAS, DSC Telecom L.P., a Texas limited partnership (the "Seller"
or "Transferor"), is the owner of all of the assets used in the Business;
WHEREAS, DSC desires to form Airspan with a group of investors
pursuant to which the investors will contribute cash to the capital of Airspan
and DSC will cause the Transferor to transfer the Intangible Rights (as defined
in Section 5(f)(iv)) used in the Business to the Transferee solely in exchange
for certain Series A Preferred Stock (as defined below) in a transfer
qualifying under Section 351 of the Internal Revenue Code of 1986, as amended;
WHEREAS, after the formation of Airspan and on the terms and subject
to the conditions contained in this Agreement, DSC will cause Seller to sell,
transfer, and assign to Airspan Communications Limited, a corporation
incorporated under the laws of England and Wales (the "Buyer"), and Airspan and
Buyer desire to acquire and purchase, all of the assets used in the Business;
and
WHEREAS, on the terms and subject to the conditions contained in this
Agreement, DSC and Seller wish to assign to Buyer, and Buyer is willing to
assume, all of the Assumed Liabilities (as hereinafter defined).
NOW THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows.
1. DEFINITIONS.
"ACQUIRED ASSETS" means the assets of the Business to be sold,
transferred, and assigned to the Transferee or Buyer listed on Exhibit A, and
such other assets of a similar nature to the assets listed on Exhibit A that
have been acquired by the Business since the date set forth on Exhibit A in the
Ordinary Course of Business, except for those assets disposed of in the
Ordinary Course of Business.
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"ADVERSE CONSEQUENCES" means all actions, suits, proceedings,
hearings, investigations, charges, complaints, claims, demands, injunctions,
judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs,
amounts paid in settlement, liabilities, obligations, taxes, liens, losses,
expenses, and fees, including court costs and attorneys' fees and expenses.
"ASSUMED LIABILITIES" means the liabilities to be assigned to and
assumed by Buyer listed on Exhibit B, and such other liabilities of a similar
nature to the liabilities listed on Exhibit B that have been incurred by the
Business since the date set forth on Exhibit B in the Ordinary Course of
Business.
"AIRSPAN" has the meaning set forth in the preface above.
"BUSINESS" has the meaning set forth in the recitals above.
"BUSINESS'S TECHNOLOGY" has the meaning set forth in Section 5(f)(v)
below.
"BUYER" has the meaning set forth in the recitals above.
"CLOSING" has the meaning set forth in Section 4(a) below.
"CLOSING DATE" has the meaning set forth in Section 4(a) below.
"COMMON STOCK" means the Transferee's common stock, par value $0.01
per share.
"CONTINGENT STOCK RIGHTS" has the meaning set forth in Section 2
below, in the form attached as Exhibit E.
"CONTRACT" has the meaning set forth in Section 5(g) below.
"CONFIDENTIAL INFORMATION" means any information concerning the
businesses and affairs of Seller and/or its Subsidiaries that is not already
generally available to the public.
"DESIGNATED PARTY" has the meaning set forth in Section 11(c) below.
Any Designated Parties will be agreed to in writing among the Parties.
"DESIGNATED PARTY CLAIM" has the meaning set forth in Section 11(c)
below.
"DESIGNATED PARTY PATENTS" has the meaning set forth in Section 11(c)
below.
"DESIGNATED PARTY CORRESPONDENCE" has the meaning set forth in Section
11(c) below. Such Designated Party Correspondence will be identified by DSC in
writing.
"DISCLOSURE SCHEDULE" has the meaning set forth in Section 5 below.
"DSC" has the meaning set forth in the preface above.
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"GUARANTY" has the meaning set forth in Section 3(c) below.
"INDEMNIFIED PARTY" has the meaning set forth in Section 11(e) below.
"INDEMNIFYING PARTY" has the meaning set forth in Section 11(e) below.
"INTANGIBLE RIGHTS" has the meaning set forth in Section 5(f)(iv)
below.
"ORDINARY COURSE OF BUSINESS" means the ordinary course of business
consistent with past custom and practice (including with respect to amount,
quantity and frequency).
"ORIGINAL ASSET PURCHASE AGREEMENT" has the meaning set forth in the
recitals above.
"PARTY" has the meaning set forth in the preface above.
"PERSON" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
"PROMISSORY NOTE" has the meaning set forth in Section 3(c) below, in
the form attached as Exhibit C hereto.
"SELLER" has the meaning set forth in the recitals above.
"SERIES A PREFERRED STOCK" has the meaning set forth in Section 2
below.
"SUBSIDIARY" of any Person means any corporation, limited liability
company, partnership, joint venture or other legal entity of which such Person
(either alone or through or together with any other Subsidiary), owns, directly
or indirectly, more than 50% of the stock or other equity interests the holders
of which are generally entitled to vote for the election of the board of
directors or other governing body of such corporation or other legal entity,
but such corporation, limited liability company, partnership, joint venture or
other legal entity shall be deemed to be a Subsidiary only so long as such
ownership or control exists.
"THIRD PARTY CLAIM" has the meaning set forth in Section 11(e) below.
"TRANSACTION AGREEMENTS" means the agreements to be entered into as of
the Closing Date between Airspan, Buyer and/or the stockholders of Airspan and
DSC and/or its Subsidiaries, forms of which are attached hereto as Exhibits C
through M.
"TRANSFEREE" has the meaning set forth in the preface above.
"TRANSFEROR" has the meaning set forth in the recitals above.
"U.K. SECURITY AGREEMENT" has the meaning set forth in Section 3(b)
below, in the form attached as Exhibit D-1 hereto.
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"U.S. SECURITY AGREEMENT" has the meaning set forth in Section 3(b)
below, in the form attached as Exhibit D-2 hereto.
2. CONTRIBUTION OF INTANGIBLE RIGHTS. The Transferor agrees to execute
and deliver to the Transferee that certain Series A Preferred Stock Purchase
Agreement in the form attached hereto as Exhibit F pursuant to which DSC shall
cause the Transferor at or prior to the Closing to transfer to the Transferee
the Intangible Rights described in Section 5(f) of the Disclosure Schedule
solely in exchange for (a) 7,500,000 shares of Series A Convertible Preferred
Stock, par value U.S. $0.01 per share (the "Series A Preferred Stock"), of the
Transferee and (b) contingent stock rights to acquire 2,500,000 shares of
Series A Preferred Stock in the form attached hereto as Exhibit E (the
"Contingent Stock Rights").
3. PURCHASE AND SALE OF ASSETS; ASSUMPTION OF LIABILITIES.
(a) Sale of Assets. On and subject to the terms and conditions of
this Agreement, Airspan agrees to cause Buyer to purchase from Seller, and DSC
agrees to, and will cause Seller to, sell, transfer, convey and deliver to
Buyer all of the Acquired Assets (other than the Intangible Rights described in
Section 5(f) of the Disclosure Schedule) at the Closing for the consideration
specified below in this Section 3(a).
(b) Assumption of Liabilities. On and subject to the terms and
conditions of this Agreement, Buyer agrees to assume and become responsible for
all of the Assumed Liabilities at the Closing pursuant to the terms of the form
of Assignment and Assumption agreement attached hereto as Exhibit G. Buyer will
not assume or have any responsibility, however, with respect to any other
obligation or liability of Seller not included within the definition of Assumed
Liabilities.
(c) Promissory Note. In consideration for the sale of the
Acquired Assets in Section 3(a), Airspan agrees to deliver to Seller a
promissory note of Buyer in an aggregate original principal amount of
U.S.$17,000,000, in the form attached hereto as Exhibit C (the "Promissory
Note"), in exchange for such Acquired Assets. The Promissory Note shall be
secured by a first priority lien or charge on all of the accounts receivable,
inventory and fixed assets of Airspan and Buyer, whether now or hereafter
acquired (including, without limitation, the Acquired Assets which constitute
accounts receivable, inventory and fixed assets) pursuant to a security
agreement, in the form attached hereto as Exhibit D-1 (the "U.K. Security
Agreement"). Airspan agrees to execute and deliver to Seller an unconditional
guaranty whereby Airspan will agree to guaranty the performance of Buyer's
obligation under the Promissory Note, in the form attached as Exhibit H (the
"Guaranty"). The Guaranty shall be secured by a first priority lien or charge
on all of the accounts receivable, inventory and fixed assets of Airspan,
whether now or hereafter acquired pursuant to a security agreement, in the form
attached hereto as Exhibit D-2 (the "U.S. Security Agreement," and collectively
with the U.K. Security Agreement, the "Security Agreements"). The Security
Agreements will provide that Seller will subordinate its liens and charges on
accounts receivable and fixed assets of Airspan and Buyer to a lien or charge
granted to any lender or lenders on terms reasonably acceptable Airspan. At
the request of DSC or its Subsidiaries and without further consideration,
Airspan agrees to execute such documents and instruments and do such further
acts as may be reasonably necessary or desirable to perfect and maintain DSC's
and its Subsidiaries' first priority (except as contemplated in the proviso set
forth in the immediately preceding sentence)
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security interest in the accounts receivable, fixed assets and inventory of
Airspan and Buyer. DSC and its Subsidiaries at the request of Airspan will,
without further consideration, execute such documents and instruments and do
such further acts as may be reasonably necessary or desirable to subordinate
Seller's liens and charges on the fixed assets and accounts receivable of
Airspan and Buyer as contemplated in the Security Agreements.
4. THE CLOSING.
(a) Time and Place. The closing of the transactions contemplated
by this Agreement (the "Closing") shall take place at the offices of ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ in Dallas, Texas, commencing at 9:00 a.m. local time on January 30,
1998, or such other date as Airspan and DSC may mutually determine (the
"Closing Date").
(b) Deliveries at the Closing. At the Closing, (i) DSC and it
Subsidiaries will deliver to Airspan and its Subsidiaries the various
certificates, instruments, and documents referred to in Section 10(a) below,
(ii) Airspan and its Subsidiaries will deliver to DSC and its Subsidiaries the
various certificates, instruments, and documents referred to in Section 10(b)
below, (iii) DSC will, and will cause its Subsidiaries to (as appropriate),
execute, acknowledge (if appropriate), and deliver to Airspan and its
Subsidiaries, and Airspan, its Subsidiaries and Airspan's stockholders (if
appropriate) shall execute, acknowledge (if appropriate), and deliver to DSC
and its Subsidiaries, the Transaction Agreements in the forms attached hereto
as Exhibits ▇-▇, ▇-▇ and F through M and such other instruments of sale,
transfer, conveyance, assignment, and assumption as Airspan or DSC and their
respective counsel reasonably may request; (iv) Buyer will deliver to Seller
the Promissory Note; (v) the Transferor will deliver to the Transferee a stock
certificate or certificates representing an aggregate of 7,500,000 shares of
Series A Preferred Stock, duly authorized, validly issued, fully paid and
nonassessable, and (vi) the Transferor will deliver to the Transferee the
Contingent Stock Rights.
5. REPRESENTATIONS AND WARRANTIES OF SELLER. DSC represents and warrants
to Airspan that the statements contained in this Section 5 are correct and
complete as of the date of this Agreement with respect to itself, except as set
forth in the disclosure schedule accompanying this Agreement and initialized by
the Parties (the "Disclosure Schedule"). The Disclosure Schedule will be
arranged in paragraphs corresponding to the lettered and numbered paragraphs
contained in this Section 5. As used in this Section 5, "to DSC's knowledge"
shall include the knowledge of DSC and its Subsidiaries.
(a) Organization of DSC and Seller. DSC and Seller are either a
corporation or limited partnership, organized, validly existing, and in good
standing under the laws of their respective jurisdictions of organization.
(b) Authorization of Transaction. DSC and Seller have full power
and authority (including full corporate or partnership power and authority) to
execute and deliver this Agreement and/or each of the Transaction Agreements to
which it is a party and to perform its obligations thereunder. Without
limiting the generality of the foregoing, the execution and delivery of this
Agreement and the Transaction Agreements and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by all
requisite actions of DSC and its Subsidiaries. This Agreement constitutes, and
the Transaction Agreements will constitute, when executed and delivered, the
valid and legally binding obligations of DSC and its Subsidiaries that are
parties
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thereto, enforceable in accordance with their respective terms and conditions,
except as may be limited by bankruptcy, insolvency, reorganization and similar
laws affecting creditors generally and the availability of equitable remedies.
(c) Noncontravention. Neither the execution and the delivery of
this Agreement nor the Transaction Agreements, nor the consummation of the
transactions contemplated hereby (including the assignments and assumptions
referred to in Section 2 and Section 3 above), will (i) violate any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any government, governmental agency, or
court to which DSC or one of its Subsidiaries is subject or any provision of
the charter or bylaws of DSC or its Subsidiaries, (ii) except as contemplated
by this Agreement or the Transaction Agreements, require DSC or one of its
Subsidiaries to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental agency in
order for the Parties to consummate the transactions contemplated by this
Agreement (including the assignments and assumptions referenced to in Section 2
and Section 3) or (iii) except as set forth in Section 5(c) of the Disclosure
Schedule, violate any provision of, or require the consent of any party to, any
agreement or instrument to which DSC or one of its Subsidiaries is a party; in
each case, except where such violation or the failure to give notice, to file,
or to obtain any authorization, consent, or approval would not have a material
adverse effect on the Business and Airspan.
(d) Brokers' Fees. DSC has no liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which Airspan could become
liable or obligated.
(e) Properties.
(i) DSC or its Subsidiaries will transfer to Buyer good
title to the tangible assets included in the Acquired Assets free and
clear of all liens and encumbrances other than those relating to the
Assumed Liabilities and the liens or charges in favor of Seller
contemplated hereby and other than those created by Airspan or its
affiliates.
(ii) There has not occurred, since December 31, 1997, any
transfer of title, any abandonment, any pilferage or any loss, with
respect to any property, plant, or equipment of the Business, any of
which, individually or in the aggregate, would have had a material
adverse effect on the Business.
(f) Proprietary Rights.
(i) Section 5(f) of the Disclosure Schedule contains a
true, correct and complete list and brief description of (A) all
patents and patent applications, trademark registrations, service ▇▇▇▇
registrations and applications therefor, trademarks and service marks,
trade names, and copyright registrations and applications therefor,
which are owned by DSC or its Subsidiaries and which are being
transferred and/or licensed to the Transferee pursuant to that certain
Intellectual Property Agreement, a form of which is attached hereto as
Exhibit I, and (B) all material agreements that directly relate to the
Business under which DSC or any of its Subsidiaries is licensed or
authorized to use Intangible Rights (as defined below) of others,
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or under which others are licensed or authorized to use Intangible
Rights of DSC or any of its Subsidiaries, except for standard,
commercially available computer software programs.
(ii) (A) All maintenance fees for patents identified in
Section 5(f) of the Disclosure Schedule have been timely paid and all
affidavits described in Sections 8 and 15 of the ▇▇▇▇▇▇ Trademark Act
and all renewals relating to registered trademarks and service marks
identified in Section 5(f) of the Disclosure Schedule have been timely
and properly filed; (B) all registrations of trademarks and copyrights
identified in Section 5(f) of the Disclosure Schedule and grants of
patents identified in Section 5(f) of the Disclosure Schedule remain
in full force and effect; (C) to Seller's knowledge, the Business has
the right to use all Intangible Rights referenced in Section
5(f)(i)(A) above and has the right to use all Intangible Rights
referenced in Section 5(f)(i)(B) above in accordance with the
respective agreements under which such rights are granted; (D) no
Person is infringing upon the Intangible Rights referenced in Section
5(f)(i) above; (E) no claims or litigation are asserted, pending or,
to DSC's knowledge, threatened by any Person contesting the validity
or effectiveness of or title to, the Intangible Rights referenced in
Section 5(f)(i) above or challenging or questioning the validity or
effectiveness of any license or agreement pertaining thereto or
asserting the misuse thereof; (F) to DSC's knowledge, neither use of
the Intangible Rights referenced in Section 5(f)(i) above by the
Business nor the conduct of the Business as now conducted or as
presently proposed to be conducted infringes on the Intangible Rights
of any Person or violates any license or other agreement applicable
thereto such that a Person would reasonably determine that such
infringement constitutes a risk of a material adverse effect on the
Business further, any instance(s) of claim(s) of potential
infringement by the Business of the Intangible Rights of third parties
are set forth in Section 5(f)(ii)(F) of the Disclosure Schedule; (G)
all of the licenses and other agreements referenced in Section
5(f)(i)(B) above are in full force and effect and constitute legal,
valid and binding obligations of the respective parties thereto,
except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, or other laws affecting the enforcement of
creditors' rights generally and the application of general principles
of equity; (H) there currently are not any defaults by DSC or its
Subsidiaries under all of the licenses and other agreements referenced
in Section 5(f)(i)(B) above, and to DSC's knowledge, no event has
occurred which (whether with or without notice, lapse of time, or the
happening or occurrence of any other event) would constitute a default
thereunder by DSC or any of its Subsidiaries; and (I) the validity and
effectiveness of all of the licenses and other agreements referenced
in Section 5(f)(i)(B) above and the current terms thereof will not be
adversely affected by the transactions contemplated by this Agreement.
(iii) DSC or its Subsidiaries have taken reasonable
measures to protect the Business's Technology (hereinafter defined)
from use by any other Person, including without limitation, reasonable
measures to ensure the secrecy of trade secrets and written agreements
with key employees with respect to confidentiality and rights to
inventions.
(iv) "Intangible Rights" shall mean, collectively, (A)
patents, registered and unregistered trademark and service marks (and
all rights and goodwill related thereto), logos, trade names, and
registered and unregistered copyrights including all registrations,
applications, reissues, renewals, continuations, and extensions
pertaining to any of the foregoing; and (B) all trade secrets,
including, without limitation, those trade secrets relating
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to designs, plans, specifications, know-how, technology, processes,
techniques, methods, developments, inventions, computer software,
product and manufacturing drawings, technical data, engineering
notebooks, formulae, product specifications and literature, operating
and maintenance procedures, product plans and quality control, and
sales records and other proprietary rights.
(v) "Business's Technology" shall mean all Intangible
Rights referenced in Section 5(f)(iv)(B) above which are necessary for
the conduct of the Business as now conducted or presently proposed to
be conducted.
(vi) To DSC's knowledge, DSC and its Subsidiaries have
assigned, transferred or licensed to Airspan and its Subsidiaries the
Intangible Rights owned or controlled by DSC or one of its
Subsidiaries that are necessary for the conduct, in all material
respects, of the Business as now conducted or presently proposed to be
conducted. To DSC's knowledge, the use and sale of the products of
the Business does not require the use of any third party technology
that is not sublicenseable by DSC or one of its Subsidiaries or that
cannot be licensed by Airspan or its Subsidiaries from a third party
on substantially the same terms and conditions as licensed by DSC or
its Subsidiaries or on other commercially reasonable terms and
conditions.
(g) Contracts.
(i) Set forth in Section 5(g) of the Disclosure Schedule
is a list of each agreement, commitment, and arrangement (whether oral
or written) (individually, a "Contract" and collectively "Contracts")
to which DSC or one of its Subsidiaries is a party and which relates
to the Business, including, without limitation, all leases; employment
agreements; consulting agreements; collective bargaining agreements;
distribution, sales, advertising, agency, license, manufacturer's
representative, or similar agreements; agreements concerning future
purchases of materials, supplies, equipment or services; and profit
sharing, bonus, incentive, stock option, pension, retirement, stock
purchase, hospitalization, insurance, severance or similar plans,
agreements, or arrangements providing benefits to any employee; but
excluding any agreement, arrangement or commitment which (A) may be
canceled upon 60 days notice or less by DSC or one of its Subsidiaries
without incurring a material liability or obligation on its part for
such cancellation; or (B) is not otherwise material to the Business.
(ii) Neither DSC nor any of its Subsidiaries has received
notice of any default, and neither DSC nor any of its Subsidiaries is
in default, under any agreement, arrangement, or commitment described
in Section 5(g) of the Disclosure Schedule, which default could
reasonably be expected to have a material adverse effect on the
Business. Each such Contract is a legal, valid and binding obligation
of the respective parties thereto, enforceable in accordance with its
terms, except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, or other laws affecting the enforcement of
creditors' rights generally and the application of general principles
of equity, and no defenses, off-sets or counterclaims thereto have
been asserted or, to DSC's knowledge, threatened by any party thereto
other than DSC or its Subsidiaries, nor has DSC or its Subsidiaries
waived any substantial rights thereunder.
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(iii) Set forth in Section 5(g)(iii) of the Disclosure
Schedule are validly existing customer purchase orders of the Business
as of December 31, 1997 with an aggregate original value equal to or
in excess of U.S.$15,000,000 and except for any amounts that are not
material to the Business as a whole, all of which has yet to be
shipped as of December 31, 1997.
(h) Litigation. Except as set forth on Section 5(h) of the
Disclosure Schedule there is no action, proceeding or investigation pending or,
to DSC's knowledge, threatened against or affecting the Business or any of its
properties or rights, at law or in equity before or by any court, tribunal, or
federal, state, municipal, or other governmental department, commission, board,
bureau, agency, or other instrumentality, domestic or foreign, which could, if
adversely determined, reasonably be expected to result in any material adverse
effect on the Business. To DSC's knowledge, there has not occurred any event
and there are no facts or conditions which would provide a substantial basis
for any action, proceeding, or investigation which could reasonably be expected
to have a material adverse effect on the Business. There are no actions,
suits, or proceedings pending or, to DSC's knowledge, threatened which seek to
prevent, challenge, or restrict in any manner the transactions contemplated
hereby.
(i) Compliance With Laws.
(i) The Business is not subject to the terms or
provisions of any judgment, decree, order, writ, or injunction. The
Business has not previously violated and is not presently in violation
of any terms or provisions of any statute, law, rule, ordinance, or
regulation of any state, commonwealth, nation, territory, possession,
county, parish, municipality, or other political subdivision or of any
department, commission, board, bureau, agency, court, tribunal, or
other instrumentality of any of the foregoing, including, but not
limited to, laws and regulations pertaining to pollution and
protection of the environment, anticompetitive practices,
discrimination, employment, health, and safety, which, if enforced
against the Business, could reasonably be expected to have a material
adverse effect on the Business.
(ii) Section 5(i) of the Disclosure Schedule sets forth
all material licenses, franchises, permits, and other governmental
authorizations held by DSC on the date hereof which are applicable to
the operation of the Business.
(j) Accounts Receivable. The accounts receivable of the Business
as of December 31, 1997 are reflected on Section 5(j) of the Disclosure
Schedule. Such accounts receivable are not subject to any setoffs or
counterclaims, and are valid and existing, subject only to the reserve for bad
debts set forth on Section 5(j) of the Disclosure Schedule.
(k) No Undisclosed Liabilities. The Business does not have any
material liability (whether known or unknown, whether asserted or unasserted,
whether absolute or contingent, whether accrued or unaccrued, whether
liquidated or unliquidated, and whether due or to become due, including any
liability for taxes), except for (i) the Assumed Liabilities (including the
amounts set forth on Exhibit B in respect thereof), (ii) liabilities retained
by Seller, or (iii) liabilities incurred in the Ordinary Course of Business
that would not have a material adverse effect on the Business.
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(l) Employee Benefit and Pension Plans. Except as set forth on
Section 5(l) of the Disclosure Schedule, (i) there are no pension, stock option
or stock incentive, life insurance, disability or similar plans, arrangements
or obligations of DSC or its Subsidiaries for the employees listed on Section
7(f) of the Disclosure Schedule and neither DSC nor its Subsidiaries has an
obligation (whether legally binding or established by custom) to pay any
pension or make any other payment after retirement or death or otherwise to
provide "relevant benefits" within the meaning of Section 612 of the Income and
Corporation Taxes Act of 1988, as amended, to or in respect of any such
employee; (ii) DSC has supplied to Airspan copies of all material standard form
literature issued to such employees about the items listed on Section 5(l) of
the Disclosure Schedule; and (iii) all amounts due to any insurance company in
connection with the items listed on Section 5(l) of the Disclosure Schedule
have been paid or are included in the Assumed Liabilities.
(m) Insurance. Section 5(m) of the Disclosure Schedule sets forth
the following information with respect to each material insurance policy to
which DSC or one of its Subsidiaries (including policies providing property,
casualty, liability, and bond and surety arrangements) is a party, a named
insured, or otherwise the beneficiary of coverage that relates to the Acquired
Assets or the Business:
(i) the name of the insurer, the name of the
policyholder, and the name of each covered insured;
(ii) the policy number and the period of coverage; and
(iii) the scope (including an indication of whether the
coverage is on a claims made, occurrence, or other basis) and amount
of coverage.
With respect to each such insurance policy: (i) neither any of DSC and its
Subsidiaries is in material breach or default (including with respect to the
payment of premiums or the giving of notices), and no event has occurred to
DSC's knowledge which, with notice or the lapse of time, would constitute such
a material breach or default, or permit termination, modification, or
acceleration, under the policy; and (ii) to DSC's knowledge, no party to the
policy has repudiated any material provision thereof. Section 5(m) of the
Disclosure Schedule describes any material self-insurance arrangements
affecting any of DSC and its Subsidiaries which relates to the Acquired Assets
or the Business.
(n) Inventory. The inventories of the Business reflected on
Section 5(n) of the Disclosure Schedule consists of the quantities reflected
thereon and are useable for the products currently being shipped by the
Business, subject only to the reserves for inventory write down set forth on
Section 5(n) of the Disclosure Schedule or inventory required to support
customer warranties in the Ordinary Course of Business.
(o) Absence of Certain Changes. Since December 31, 1997, DSC has
not (i) suffered any material adverse effect on the Business or the Acquired
Assets; (ii) made any capital expenditure or any investment (whether by means
of a loan, equity investment or otherwise) in any other Person other than
capital expenditures other than the ordinary Course of Business; (iii)
assigned, canceled, released or waived any material right or claim; (iv)
increased in any manner the compensation of directors, officers or employees
except in the Ordinary Course of Business; (v) liquidated, dissolved or
otherwise reorganized or sought protection from creditors; (vi) made any
contribution to any
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employee benefit plan except a contribution to an employee benefit plan in the
Ordinary Course of Business; (vii) made any loans or advances to any Person in
respect of the Business other than extensions of trade credits and travel,
entertainment, relocation and other similar employee advances in the Ordinary
Course of Business; or (viii) discharged any material liability in respect of
the Business other than in the Ordinary Course of Business.
(p) Real Property. DSC has no interests in real property in
respect of the Business other than leasehold interests. Section 5(p) of the
Disclosure Schedule identifies all real property leased by DSC in respect of
the Business and the leases governing such properties constitute legal, valid
and binding obligations of the parties thereto, enforceable against such
parties in accordance with their terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization or other laws affecting the
enforcement of creditors' rights generally and the application of general
principles of equity. To DSC's knowledge, the facilities of DSC in respect of
the Business do not encroach on the property of others and all real property
used in the operations of DSC in respect of the Business is in good repair and
conforms in all material respects with all applicable ordinances, regulations
and zoning laws.
(q) Environmental Matters. Neither DSC nor its Subsidiaries has
caused or permitted the facilities occupied by the Business, located at ▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, to be contaminated with any
hazardous substance which would require a clean up under any environmental law.
To DSC's knowledge, there are no threatened or pending civil or criminal
actions, notices of violations, investigations or administrative proceedings
from any regulatory authority under any environmental law relating to such
facilities against DSC or its Subsidiaries.
6. REPRESENTATIONS AND WARRANTIES OF AIRSPAN. Airspan represents and
warrants to DSC that the statements contained in this Section 6 are correct and
complete as of the date of this Agreement with respect to itself, except as set
forth in the Disclosure Schedule. The Disclosure Schedule will be arranged in
paragraphs corresponding to the lettered and numbered paragraphs contained in
this Section 6.
(a) Organization of Airspan and Buyer. Airspan and Buyer are
corporations duly organized, validly existing, and in good standing under the
laws of their respective jurisdictions of organization. Copies of Airspan's
and Buyer's organizational documents (as amended to date) are attached as
Exhibits N and O, respectively. The minute books (containing the records of
meetings of the stockholders, the board of directors, and any committees of the
board of directors), the stock certificate books, and the stock record books of
Airspan and Buyer are correct and complete. Airspan and Buyer are not in
default under or in violation of any provision of their respective
organizational documents.
(b) Capitalization. The entire authorized capital stock of Buyer
consists of 50,000,000 shares of Common Stock and 40,000,000 shares of Series A
Preferred Stock, of which 1,625,000 shares of Common Stock and 30,000,000
shares of Series A Preferred Stock are issued and outstanding and no shares of
Common Stock and no shares of Series A Preferred Stock are held in treasury.
All of the issued and outstanding shares of Common Stock and Series A Preferred
Stock have been duly authorized, are validly issued, fully paid, and
nonassessable, and are held of record by the respective Persons as set forth in
Section 6(b) of the Disclosure Schedule. There are no outstanding or authorized
options, warrants, purchase rights, subscription rights, conversion rights,
exchange
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rights, or other contracts or commitments that could require Airspan to issue,
sell, or otherwise cause to become outstanding any of its capital stock. There
are no outstanding or authorized stock appreciation, phantom stock, profit
participation, or similar rights with respect to Airspan, and there are no
voting trusts, proxies, or other agreements or understandings with respect to
the voting of the capital stock of Airspan.
(c) Authorization of Transaction. Airspan and Buyer have the power
and authority to execute and deliver this Agreement and each of the Transaction
Agreements to which it is a party and to perform its obligations hereunder and
thereunder. Without limiting the generality of the foregoing, the execution and
delivery of this Agreement and the Transaction Agreements and the consummation
of the transactions contemplated hereby and thereby have been duly authorized
by all requisite actions of Airspan and Buyer. This Agreement constitutes, and
the Transaction Agreements will constitute, when executed and delivered, the
valid and legally binding obligations of Airspan and Buyer (as appropriate),
enforceable in accordance with their respective terms and conditions, except as
may be limited by bankruptcy, insolvency, reorganization, and similar laws
affecting creditors generally and the availability of equitable remedies.
(d) Noncontravention. Neither the execution and the delivery of
this Agreement or the Transaction Agreements, nor the consummation of the
transactions contemplated hereby, will (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which Airspan
or Buyer is subject or any provision of their respective organizational
documents, (ii) except as contemplated by this Agreement or the Transaction
Agreements, require Airspan or Buyer to give any notice to, make any filing
with, or obtain any authorization, consent, or approval of any government or
governmental agency in order for the Parties to consummate the transactions
contemplated by this Agreement (including the assignments and assumptions
referenced to in Section 3) or (iii) violate any provision of, or require the
consent of any party to, any agreement or instrument to which Airspan or Buyer
is a party; in each case, except where such violation or the failure to give
notice, to file, or to obtain any authorization, consent, or approval would not
have a material adverse effect on Airspan or Buyer.
(e) Brokers' Fees. Neither Airspan nor Buyer has any liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement except as set forth
in Section 6(e) of the Disclosure Schedule.
(f) Shares to be Acquired by the Transferor. The 10,000,000
shares of Series A Preferred Stock to be acquired by the Transferor pursuant to
this Agreement or the Contingent Stock Rights, when issued, be duly authorized,
validly issued, fully paid, nonassessable, and free and clear of all liens and
encumbrances.
(g) Operations of Airspan and Buyer. Since their organization,
neither Airspan nor Buyer have (i) engaged in any business, (ii) entered into
any agreements, commitments, or arrangements (whether oral or written), or
(iii) incurred any liabilities, other than the business, agreements,
commitments, arrangements, and liabilities contemplated hereby.
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(h) Value Added Tax Matters. Airspan and Buyer covenant to DSC
that Buyer will use all reasonable efforts to promptly register as a taxable
person effective as of the Closing Date within the meaning of Section 3 of the
Value Added Tax Act of 1994, and that Buyer shall use the Acquired Assets in
carrying on the same kind of business from and after the Closing Date as that
carried on by DSC and its Subsidiaries before the Closing Date.
7. PRE-CLOSING COVENANTS OF DSC. DSC agrees as follows with respect to
the period between the execution of this Agreement and the Closing.
(a) General. DSC will use reasonable efforts to take all action
and to do all things necessary, proper, or advisable in order to consummate and
make effective the transactions contemplated by this Agreement (including
satisfaction, but not waiver, of the closing conditions set forth in Section 10
below) by January 30, 1998.
(b) Notices and Consents. DSC will give (and will cause its
Subsidiaries to give) any notices to third parties, and will (and will cause
its Subsidiaries to) use reasonable efforts to obtain any third party consents,
that Airspan reasonably may request in connection with the matters referred to
in Section 5(c) above.
(c) Operation of Business. DSC will not cause or permit the
Business to engage in any practice, take any action, or enter into any
transaction outside the Ordinary Course of Business.
(d) Full Access. DSC will permit, and will cause its Subsidiaries
to permit, representatives of Airspan to have full access at all reasonable
times, and in a manner so as not to interfere with the normal business
operations of the Business, to all premises, properties, personnel, books,
records, contracts, and documents of or pertaining to the Business. Airspan
will treat and hold as such any Confidential Information it receives from DSC
or its Subsidiaries in the course of the reviews contemplated by this Section
7(d), will not use any Confidential Information except in connection with this
Agreement, and, if this Agreement is terminated for any reason whatsoever, will
return to DSC and its Subsidiaries all tangible embodiments (and all copies) of
Confidential Information which are in its possession.
(e) Notice of Developments. DSC will give prompt written notice
to Airspan of any material adverse development causing a breach of any of its
own representations and warranties in Section 5 above. No disclosure by DSC
pursuant to this Section 7(e), however, shall be deemed to amend or supplement
the Disclosure Schedule or to prevent or cure any misrepresentation or breach
of warranty.
(f) Employees. DSC will use reasonable efforts to assist Airspan
and Buyer in its efforts to persuade the current employees of the Business
listed in Section 7(f) of the Disclosure Schedule, to accept employment with
Airspan or Buyer. DSC shall be responsible for and agrees and undertakes to
indemnify Airspan and Buyer at all times from and against any amounts that
become due to any of its employees not listed on Section 7(f) of the Disclosure
Schedule whose employment relationship is terminated by Airspan, Buyer, DSC or
one of its Subsidiaries or the employee (together with any cash and expenses
incurred) or that become due to any person or entity in respect of any of DSC's
employees not listed on Section 7(f) of the Disclosure Schedules (together with
any costs and expenses
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incurred) including, but not limited to any breach of the obligations to inform
and/or consult under the Transfer Regulations (as defined below).
8. PRE-CLOSING COVENANTS OF AIRSPAN. Airspan agrees as follows with
respect to the period between the execution of this Agreement and the Closing.
(a) General. Airspan will use reasonable efforts to take all
action and to do all things necessary, proper, or advisable in order to
consummate and make effective the transactions contemplated by this Agreement
(including satisfaction, but not waiver, of the closing conditions set forth in
Section 10 below) by January 30, 1998.
(b) Notices and Consents. Airspan will give (and will cause its
Subsidiaries to give) any notices to, make any filings with, and will (and will
cause its Subsidiaries to) use reasonable efforts to obtain any authorizations,
consents, and approvals of governments and governmental agencies in connection
with the matters referred to in Section 6(d) above.
(c) Notice of Developments. Airspan will give prompt written
notice to DSC of any material adverse development causing a breach of any of
its own representations and warranties in Section 6 above. No disclosure by
Airspan pursuant to this Section 8(c), however, shall be deemed to amend or
supplement the Disclosure Schedule or to prevent or cure any misrepresentation
or breach of warranty.
(d) Employees. Airspan will use its reasonable efforts to
persuade the employees listed on Section 7(f) of the Disclosure Schedule to
accept employment with Airspan or Buyer. Airspan shall be responsible for and
agrees and undertakes to indemnify DSC and its Subsidiaries at all times from
and against any amounts that become due to any person listed on Section 7(f) of
the Disclosure Schedule or that become due to any other person or entity in
respect of any person listed on Section 7(f) of the Disclosure Schedule
(together with any costs and expenses incurred) (i) as a result of the
termination of the employment relationship whether by Airspan, Buyer, DSC or
one of its Subsidiaries or the employee or (ii) under applicable law,
including, but not limited to any breach of the obligations to inform and/or
consult under The Transfer of Undertakings (Protection of Employment)
Regulations 1981 of the United Kingdom (the "Transfer Regulations"). The
Parties acknowledge that in the Transfer Regulations will apply. By virtue of
the Transfer Regulations all DSC's and its Subsidiaries' rights, duties,
powers, liabilities and obligations in respect in any contract of employment
with any employee listed on Section 7(f) in the Disclosure Schedule shall be
transferred to Airspan or Buyer.
(e) Contingent Stock Rights Adjustment. In the event that as of
the Closing Date and upon issuance of the Series A Preferred Stock to
Transferor under Section 2, the amount of Series A Preferred Stock owned by
Transferor would equal or exceed twenty per cent (20%) of the outstanding
capital stock of Airspan, then the number of shares of Series A Preferred Stock
issued to Transferor under Section 2(a) shall be decreased by such amount that
is necessary such that after such adjustment Transferor would not own a number
of shares of Series A Preferred Stock than would equal or exceed twenty per
cent (20%) of the outstanding capital stock of Airspan and the number of shares
of Series A Preferred Stock subject to the Contingent Stock Rights shall be
increased by the same amount.
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9. POST-CLOSING COVENANTS. The Parties agree as follows with respect to
the period following the Closing.
(a) General. In case at anytime after the Closing any further
action is necessary or desirable to carry out the purposes of this Agreement,
each of the Parties will take such further action (including the execution and
delivery of such further instruments and documents) as the other Party
reasonably may request, all at the sole cost and expense of the requesting
Party (unless the requesting Party is entitled to indemnification therefor
under Section 11 below).
(b) Litigation Support. In the event and for so long as any Party
actively is contesting or defending against any action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand in connection with
(i) any transaction contemplated under this Agreement or the Transaction
Agreements or (ii) any fact, situation, circumstance, status, condition,
activity, practice, plan, occurrence, event, incident, action, failure to act,
or transaction on or prior to the Closing Date involving the Business, the
other Party will cooperate with the contesting or defending Party and its
counsel in the contest, make available its personnel, and provide such
testimony and access to its books and records as shall be necessary in
connection with the defense or contest, all at the sole cost and expense of the
contesting or defending Party (unless the contesting or defending Party is
entitled to indemnification therefor under Section 11 below).
(c) Transition. DSC will not take any action that is designed or
intended to have the effect of discouraging any lessor, licensor, customer,
supplier, or other business associate of the Business from maintaining the same
business relationships with the Business after the Closing as it maintained
with the Business prior to the Closing.
(d) No Solicitation.
(i) For a period of (A) three years from the Closing
Date or (B) as long as DSC or one of its Subsidiaries is a stockholder
of Airspan and for a period of one year thereafter, whichever is
longer, neither DSC nor its Subsidiaries will solicit for employment
or hire, employ or otherwise retain any person that was employed by
Airspan or Buyer any time during the six month period prior to the
date DSC or any of its Subsidiaries hires, employs or retains such
person, without the consent of Airspan which shall not be unreasonably
withheld. The provisions of this Section 9(d)(i) shall not apply to
any employee that was terminated by Airspan or one of its
Subsidiaries.
(ii) For a period of (A) three years from the Closing Date
or (B) as long as DSC or one of its Subsidiaries is a stockholder of
Airspan and for a period of one year thereafter, whichever is longer,
neither Airspan nor its Subsidiaries will solicit for employment or
hire, employ or otherwise retain any person, provided that such person
was not listed on Section 7(f) of the Disclosure Schedule, that was
employed by DSC or any of its Subsidiaries at any time during the six
month period prior to the date Airspan or any of its Subsidiaries,
hires employees or retains such person, without the consent of DSC
which shall not be unreasonably withheld. The provisions of this
Section 9(d)(ii) shall not apply to any employee that was terminated
by DSC or one of its Subsidiaries, nor shall it apply to ▇▇▇▇▇▇▇
▇▇▇▇▇▇, as
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it is Airspan's stated intention to offer employment to ▇▇. ▇▇▇▇▇▇,
following a transition period of approximately 90 days.
(e) Transitions Services. After the Closing, DSC or its
Subsidiaries will provide certain services to Airspan and its Subsidiaries
outlined herein for a period of up to nine months after the Closing Date (the
"Transition Services") at DSC's or its Subsidiaries' cost of such services.
Following the Closing, the Parties will negotiate in good faith an agreement
(the "Transition Services Agreement")for the provision of the Transition
Services. Airspan and its Subsidiaries shall use their best efforts to
implement alternative sources of the Transition Services as expeditiously as
possible after the Closing Date. The Transition Services shall include:
(i) data processing services at a level of service and
availability substantially similar to that provided to the Business
prior to the Closing Date;
(ii) payroll, order entry, accounts payable, ledger,
accounting, and treasury services at a level of service and
availability substantially similar to that provided to the Business
prior to the Closing Date;
(iii) office services, such as mail, copying,
telecommunications, and other general office administrative services
at the office space currently used by the Business and at a level of
service and availability substantially similar to that provided to the
Business prior to the Closing Date;
(iv) the services of the employees of DSC and its
Subsidiaries set forth on Section 9(e)(iv) of the Disclosure Schedule,
provided that any such person at such time is an employee of DSC or
any of its Subsidiaries, will be available to Airspan or its
Subsidiaries at 122% of such person's actual salary. Airspan or its
Subsidiaries may pay as additional compensation and at their sole
expense, performance based bonuses, indirectly though DSC or one of
its Subsidiaries, to any salesman or technician set forth on Section
9(e)(iv) of the Disclosure Schedule;
(v) any other or additional services as the Parties
mutually agree.
The Parties shall use commercially reasonable efforts to execute the Transition
Services Agreement prior to February 15, 1998. Notwithstanding this Section
9(e), at the request of Airspan, DSC or its Subsidiaries will continue to
provide services to the Business after the Closing Date that are within the
scope generally described above and are reasonably required by Airspan at a
level of service and availability substantially similar to that provided by DSC
or its Subsidiaries prior to the Closing Date until the execution of the
Transition Services Agreement. Such services will be provided at a cost to
Airspan and its Subsidiaries equal to DSC's or its Subsidiaries cost of such
services. DSC will invoice Airspan or one of its Subsidiaries for the cost of
the services pursuant to this Section 9(e) and Airspan or such Subsidiary shall
pay the invoiced amounts within 30 days of receipt thereof.
(f) Covenant Not to Compete. DSC, on behalf of itself and its
Subsidiaries, covenants not to compete for three years (or one year after DSC
and its Subsidiaries no longer own any capital stock of Airspan, whichever is
later) directly or indirectly in a Restricted Business. Restricted
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Business shall mean the development, manufacture, marketing or sale of FWLL-B
Products (as defined in the Intellectual Property Agreement); provided,
however, nothing in this Section 9(f) shall restrict DSC or any of its
Subsidiaries from (i) the design, manufacture, marketing or sale of products
for local access switching applications and associated equipment on the
non-subscriber side of a switch, or (ii) the marketing and sale of mobile base
station equipment, and related subscriber equipment, on the subscriber side of
a switch.
(g) Stamp Duty and Registration Fees. Airspan agrees with DSC
that Airspan or Buyer shall bear and procure payment within the applicable time
limit of any stamp duty and registration fees which may be or become payable
pursuant to applicable law in respect of or in connection with this Agreement
or any document executed or transaction entered into under or in connection
with this Agreement, including the Transaction Documents.
(h) Value Added Tax Matters. The Parties shall use all reasonable
efforts to ensure that the provisions of Section 49 of the Value Added Tax Act
of 1994 and Article 5 of the Value Added Tax Act (Special Provisions) Order
1995 applies to the sale and purchase of the Acquired Assets, to the extent
applicable, under this Agreement and that no value added tax shall be
chargeable in respect thereof.
(i) Assignment of Existing Contracts. Subject to Section
11(b)(iv)(B), DSC and Airspan will use their collective commercially reasonable
efforts to cause the assignment to Buyer of the contracts and purchase orders
set forth on Section 9(i) of the Disclosure Schedule. To the extent that any
such contract or purchase order is not assigned within one hundred eighty (180)
days after the Closing Date, DSC will indemnify Buyer in an amount equal to the
profit margin per product of such contracts and purchase orders as indicated on
Section 9(i) of the Disclosure Schedule times the amount of products which have
not been delivered pursuant to such contracts or purchase orders.
(j) Derivative Works. DSC covenants to Airspan that neither DSC
nor its Subsidiaries will make, reproduce, make or develop derivative works
based on, use, sell, offer to sell, market, promote, loan, import, export,
distribute, transfer, or otherwise dispose of FWLL-B Products under any
Transferred IP (as defined in the Intellectual Property Agreement).
10. CONDITIONS TO OBLIGATION TO CLOSE.
(a) Conditions to Obligation of Airspan. The obligation of
Airspan to consummate the transactions to be performed by it in connection with
the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in
Section 5 above shall be true and correct in all material respects at
and as of the Closing Date;
(ii) DSC shall have performed and complied with all its
covenants hereunder in all material respects through the Closing;
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(iii) there shall not be any injunction, judgment, order,
decree, ruling, or charge in effect preventing consummation of any of
the transactions contemplated by this Agreement;
(iv) DSC shall have delivered to Airspan a certificate to
the effect that each of the conditions specified above in Section
10(a)(i)-(iii) is satisfied in all respects;
(v) DSC and its Subsidiaries shall have received all
authorizations, consents, and approvals of governments and
governmental agencies referred to in Section 5(c) above;
(vi) DSC and each of its Subsidiaries (as appropriate)
shall have entered into the Transaction Agreements to which it is a
party, each of form and substance as set forth in Exhibits ▇-▇, ▇-▇
and F through M, and each shall be in full force and effect; and
(vii) all actions to be taken by DSC in connection with
consummation of the transactions contemplated hereby and all
certificates, instruments, and other documents required to effect the
transactions contemplated hereby will be reasonably satisfactory in
form and substance to Airspan.
Airspan may waive any condition specified in this Section 10(a) if it executes
a writing so stating at or prior to the Closing.
(b) Conditions to Obligation of DSC. The obligation of DSC to
consummate the transactions to be performed by it in connection with the
Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in
Section 6 above shall be true and correct in all material respects at
and as of the Closing Date;
(ii) Airspan shall have performed and complied with all of
its covenants hereunder in all material respects through the Closing;
(iii) there shall not be any injunction, judgment, order,
decree, ruling, or charge in effect preventing consummation of any of
the transactions contemplated by this Agreement;
(iv) Airspan shall have delivered to DSC a certificate to
the effect that each of the conditions specified above in Section
10(b)(i)-(iii) is satisfied in all respects;
(v) Airspan shall have received all authorizations,
consents, and approvals of governments and governmental agencies
referred to in Section 6(d) above;
(vi) Airspan, its Subsidiaries and the stockholders of
Airspan (as appropriate) shall have entered into the Transaction
Agreements to which it is a party, each of form and substance as set
forth in Exhibits C through M, respectively, and each shall be in full
force and effect; and
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(vii) all actions to be taken by Airspan in connection with
consummation of the transactions contemplated hereby and all
certificates, instruments, and other documents required to effect the
transactions contemplated hereby will be reasonably satisfactory in
form and substance to DSC.
DSC may waive any condition specified in this Section 10(b) if it executes a
writing so stating at or prior to the Closing.
11. REMEDIES FOR BREACHES OF THIS AGREEMENT.
(a) Survival of Representations and Warranties. The
representations and warranties of the Parties contained in Section 5 and
Section 6 above), shall survive the Closing hereunder (unless the damaged Party
knew or had reason to know of any misrepresentation or breach of warranty at
the time of Closing) for a period of one year except for the representations
and warranties contained in Section 5(f), which shall survive for two years.
(b) Indemnification Provisions for Benefit of Airspan.
(i) In the event DSC breaches any of its representations,
warranties, and covenants contained herein, and, if there is an
applicable survival period pursuant to Section 11(a) above, provided
that Airspan makes a written claim for indemnification against DSC
pursuant to Section 13(g) below within such survival period, then DSC
agrees to indemnify Airspan from and against any Adverse Consequences
as provided in paragraph (iv) below that Airspan shall suffer through
and after the date of the claim for indemnification (but excluding
incidental and consequential damages and any Adverse Consequences
Airspan shall suffer after the end of any applicable survival period)
caused proximately by the breach.
(ii) DSC agrees to indemnify Airspan from and against any
Adverse Consequences, as provided in paragraph (iv) below, that
Airspan shall suffer caused proximately by any liability of DSC which
is not an Assumed Liability (including any liability of DSC that
becomes a liability of Airspan under any bulk transfer law of any
jurisdiction, under any common law doctrine of de facto merger or
successor liability, or otherwise by operation of law.
(iii) In the event that Airspan is presented with any claim
of infringement of or other challenges to Airspan's right to use the
Business's Technology, provided that Airspan makes a written claim for
indemnification against DSC describing such claim pursuant to Section
13(g) below within two years of the Closing Date, then DSC agrees to
indemnify Airspan from and against any Adverse Consequences, as
provided in paragraph (iv) below, that Airspan shall suffer through
and after the date of the claim for indemnification (but excluding
incidental and consequential damages).
(iv) Notwithstanding the foregoing provisions of this
Section 11(b) hereof:
(A) DSC agrees to indemnify Airspan from and
against any Adverse Consequences that Airspan or one of its
Subsidiaries shall suffer from (1) any taxes
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resulting from the conduct of the Business prior to the
Closing date, other than taxes included in the Assumed
Liabilities, (2) subject to Section 6(h) and Section 11(i),
any value added tax that is not recoverable by Buyer in
respect of the sale of any of the Acquired Assets from Seller
to Buyer pursuant to the terms of this Agreement, or (3) any
amounts in respect of Section 7(f) above; and
(B) DSC agrees to indemnify Airspan for any and
all other Adverse Consequences, other than those set forth in
Section 11(b)(iv)(A) above or provided for in Section 11(c)
below, as follows: (1) Airspan shall be solely responsible for
the first U.S. $500,000 in Adverse Consequences suffered by
Airspan subject to indemnification hereunder; (2) DSC shall be
responsible for the next U.S. $8,500,000 in Adverse
Consequences suffered by Airspan subject to indemnification
hereunder and (3) Airspan shall be solely responsible for any
Adverse Consequences suffered by Airspan subject to
indemnification hereunder in excess of U.S. $9,000,000.
(v) (A) DSC shall pay Airspan for any Adverse
Consequences entitled to indemnification pursuant to Section
11(b)(iv)(A) above in cash; and
(B) other than those Adverse Consequences
entitled to be paid in cash pursuant to Section 11(b)(v)(A)
above, the sole recourse for any Adverse Consequences payable
by DSC to Airspan under this Section 11, will be to offset
against any amounts due Seller under the Promissory Note,
provided however, if any Adverse Consequences arising from
uncollectible Accounts Receivable in excess of the reserve for
bad debts are offset against the Promissory Note, Airspan will
assign all rights in and to such receivable or receivables to
Seller.
(c) Indemnification Provision for Action by the Designated Party.
(i) For a period of three (3) years from the Closing
Date, should a claim of infringement of any of the patents, including
any continuations-in-part, divisionals, reissues, reexaminations,
foreign or international counterparts or equivalents thereof (the
"Designated Party Patents") cited certain letters received by DSC (the
"Designated Party Correspondence") be pursued by the Designated Party
against Airspan or one of its Subsidiaries (a "Designated Party
Claim"), DSC or one of its Subsidiaries will indemnify Airspan and its
Subsidiaries, as provided in this Section 11(c). Except as provided in
this Section 11(c), the indemnification procedures of Section 11(b) and
Section 11(e) shall apply to the Designated Party Claim.
(ii) Neither Airspan nor any of its Subsidiaries will
initiate contact with the Designated Party concerning the Designated
Party Patents. Airspan and its Subsidiaries will supply DSC with any
correspondence received from Designated Party, and the supply of such
correspondence shall constitute notice under Section 11(e)(i). Airspan
and its Subsidiaries will supply all correspondence received from
Designated Party thereafter on a timely basis for DSC's use in its
defense of the Designated Party Claim, and Airspan and its Subsidiaries
shall instruct the Designated Party to correspond directly with DSC.
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(iii) The Parties covenant to make available licenses under
reasonable terms for any Intangible Rights that they or their
Subsidiaries hold, for the purpose of negotiating cross-licensing
agreements with the Designated Party in settlement or partial
settlement of the Designated Party Claim. The Parties agree to assert
any of their respective applicable Intangible Rights that are
reasonably believed to be infringed by the Designated Party.
(iv) DSC and its Subsidiaries shall be solely responsible
for the first U.S.$2,000,000 of legal expenses (including any necessary
separate counsel) incurred by the Parties in defense of the Designated
Party Claim. The Parties agree that Airspan and its Subsidiaries will
pay 60% of any additional legal expenses incurred by the Parties in
respect of the Designated Party Claim and DSC and its Subsidiaries will
pay 40% of such additional legal expenses until the Parties have paid
equal amounts. The Parties shall share equally in the remaining legal
expenses incurred thereafter. If the Designated Party Claim is settled
or successfully concluded so that (A) no royalty or payment is required
to be paid by Airspan or its Subsidiaries and (B) the claims of the
Designated Party Patent(s) that are asserted by the Designated Party
are determined to be not infringed or invalid or such asserted claims
are licensed to Airspan through the expiration of such Designated Party
Patent(s), then the Parties shall share equally all legal expenses
incurred in defense of the Designated Party Claim.
(v) Neither of the Parties shall compromise the
Designated Party Claim (in whole or part) without the consent of the
other, such consent shall not be unreasonably withheld; provided,
however, that DSC may enter into any compromise that provides Airspan
and its Subsidiaries a license with respect to the claims of the
Designated Party Patent(s) that are asserted by the Designated Party
through the expiration of such Designated Party Patent(s), without any
payment by Airspan or any of its Subsidiaries.
(vi) Should a settlement or judgment be reached on the
Designated Party Claim that includes payment of an up-front payment
and/or royalties, DSC and its Subsidiaries will pay one-half of such
up-front license fee and will pay a percentage of the royalties paid by
Airspan or its Subsidiaries to the Designated Party resulting from
settlement of the Designated Party Claim following such settlement as
follows:
Fifty percent (50%) of the first year's royalty;
Forty percent (40%) of the second year's royalty;
Thirty percent (30%) of the third year's royalty; and
Twenty percent (20%) of subsequent royalties;
provided, however, that the total of DSC's and its Subsidiaries'
payments under Section 11(c)(vi) shall not exceed U.S.$3,000,000.
(vii) All amounts to be paid to Airspan and its
Subsidiaries pursuant to this Section 11(c) shall be paid in cash, and
not offset any amounts due Seller under the Promissory Note, and the
limits of Section 11(b)(iv)(B) shall not apply.
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(d) Indemnification Provisions for Benefit of DSC.
(i) In the event Airspan breaches any of its
representations, warranties, and covenants contained herein, and, if
there is an applicable survival period pursuant to Section 11(a)
above, provided that DSC makes a written claim for indemnification
against Airspan pursuant to Section 13(g) below within such survival
period, then Airspan agrees to indemnify DSC from and against any
Adverse Consequences that DSC shall suffer through and after the date
of the claim for indemnification (but excluding incidental and
consequential damages and any Adverse Consequences DSC shall suffer
after the end of any applicable survival period) caused proximately by
the breach.
(ii) Airspan agrees to indemnify DSC from and against any
Adverse Consequences DSC shall suffer caused by any Assumed Liability.
(iii) In the event DSC is required to make any severance
payments, required by law or otherwise, to any employee listed in
Section 7(f) of the Disclosure Schedule, provided that DSC makes a
written claim for indemnification pursuant to Section 13(g) below,
then Airspan agrees to indemnify DSC from and against the entirety of
all such payments.
(e) Matters Involving Third Parties.
(i) If any third party shall notify any Party (the
"Indemnified Party") with respect to any matter (a "Third Party
Claim") which may give rise to a claim for indemnification against the
Party (the "Indemnifying Party") under this Section 11, then the
Indemnified Party shall promptly (and in any event within five
business days after receiving notice of the Third Party Claim) notify
the Indemnifying Party thereof in writing.
(ii) The Indemnifying Party will have the right at any
time to assume and thereafter conduct the defense of the Third Party
Claim with counsel of its choice reasonably satisfactory to the
Indemnified Party; provided, however, that the Indemnifying Party will
not consent to the entry of any judgment or enter into any settlement
with respect to the Third Party Claim without the prior written
consent of the Indemnified Party (not to be unreasonably withheld)
unless the judgment or proposed settlement involves only the payment
of money damages and does not impose an injunction or other equitable
relief upon the Indemnified Party.
(iii) Unless and until an Indemnifying Party assumes the
defense of the Third Party Claim as provided in Section 11(e)(ii)
above, however, the Indemnified Party may defend against the Third
Party Claim in any manner it reasonably may deem appropriate.
(iv) In no event will the Indemnified Party consent to the
entry of any judgment or enter into any settlement with respect to the
Third Party Claim without the prior written consent of the
Indemnifying Party (not to be unreasonably withheld).
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(f) Determination of Adverse Consequences. The Parties shall make
appropriate adjustments for tax benefits and insurance coverage and
take into account the time cost of money (using the prime rate of
interest as the discount rate) in determining Adverse Consequences for
purposes of this Section 11. All indemnification payments under this
Section 11 shall be deemed adjustments to the purchase price of the
Business.
(g) Exclusive Remedy. Airspan and DSC acknowledge and agree that
the foregoing indemnification provisions in this Section 11 shall be
the exclusive remedy of Airspan and DSC with respect to the Business
and the transactions contemplated by this Agreement.
(h) Other Limits on Indemnification. Notwithstanding anything to
the contrary contained herein, the time and monetary limitations on
claims for indemnification set forth in this Section 11 shall not apply
to any Adverse Consequences suffered by an Indemnified Party which
arise out of any fraud on the part of the Indemnifying Party or its
employees.
(i) Value Added Taxes. Airspan and Buyer agree that it
shall provide copies of all reports and tax returns in respect of value
added taxes arising from the sale of any of the Acquired Assets from
Seller to Buyer pursuant to the terms of this Agreement in a reasonable
period of time prior to the submission of any reports or tax returns.
Airspan and Buyer agree to consult with DSC, or DSC's designated
representative at Ernst & Young in the United Kingdom, prior to
submission of any such reports or tax returns and to provide reasonable
access to their respective books and records for DSC or its tax
advisors to review materials relating to the preparation of such
reports or tax returns. Airspan and Buyer agree to make such changes
to such reports and tax returns as are reasonably requested by DSC,
subject to compliance with applicable law.
12. TERMINATION.
(a) Termination of Agreement. The Parties may terminate this
Agreement as provided below:
(i) Airspan and DSC may terminate this Agreement by
mutual written consent at any time prior to the Closing;
(ii) Airspan may terminate this Agreement by giving
written notice to DSC at any time prior to the Closing (A) in the
event DSC has breached any material representation, warranty, or
covenant contained in this Agreement in any material respect, Airspan
has notified DSC of the breach, and the breach has continued without
cure for a period of 5 days after the notice of breach or (B) if the
Closing shall not have occurred on or before January 31, 1998, by
reason of the failure of any condition precedent under Section 10(a)
hereof (unless the failure results primarily from Airspan itself
breaching any representation, warranty, or covenant contained in this
Agreement); and
(iii) DSC may terminate this Agreement by giving written
notice to Airspan at any time prior to the Closing (A) in the event
Airspan has breached any material representation, warranty, or
covenant contained in this Agreement in any material respect, DSC has
notified
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Airspan of the breach, and the breach has continued without cure for a
period of 5 days after the notice of breach or (B) if the Closing
shall not have occurred on or before January 31, 1998, by reason of
the failure of any condition precedent under Section 10(b) hereof
(unless the failure results primarily from DSC itself breaching any
representation, warranty, or covenant contained in this Agreement).
(b) Effect of Termination. If any Party terminates this Agreement
pursuant to Section 12(a) above, all rights and obligations of the
Parties hereunder shall terminate without any liability of any Party
to the other Party (except for any liability of any Party then in
breach); provided, however, that the provisions contained in Section
7(d) and Section 13 below shall survive termination.
13. MISCELLANEOUS.
(a) Press Releases and Public Announcements. No Party shall issue
any press release or make any public announcement relating to the
subject matter of this Agreement without the prior written approval of
the other; provided, however, that any Party may make any public
disclosure it believes in good faith and on the advice of counsel is
required by applicable law or any listing or trading agreement
concerning its publicly-traded securities (in which case the
disclosing Party will use its reasonable efforts to advise the other
Party prior to making the disclosure).
(b) No Third Party Beneficiaries. This Agreement shall not confer
any rights or remedies upon any Person other than the Parties and
their respective successors and permitted assigns.
(c) Entire Agreement. This Agreement (including the documents
referred to herein) and that certain nondisclosure agreements between
DSC and certain stockholders of Airspan constitute the entire
agreement between the Parties and supersede any prior understandings,
agreements, or representations by or between the Parties, written or
oral, to the extent they have related in any way to the subject matter
hereof, including without limitation that certain letter dated
December 17, 1997 from certain stockholders of Airspan to DSC.
(d) Succession and Assignment. This Agreement shall be binding
upon and inure to the benefit of the Parties named herein and their
respective successors and permitted assigns. No Party may assign
either this Agreement or any of its rights, interests, or obligations
hereunder without the prior written approval of the other.
(e) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of
which together will constitute one and the same instrument.
(f) Headings. The section headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
(g) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request,
demand, claim, or other communication
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hereunder shall be deemed duly given if (and then two business days
after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as
set forth below:
If to DSC: Copy to:
DSC Communications Corporation ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
If to Airspan: Copy to:
Airspan Communications Corporation ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP
c/o Airspan Communications Limited ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
England
Attn: President/Managing Director
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set
forth above using any other means (including personal delivery,
expedited courier, messenger service, telecopy, telex, ordinary mail,
or electronic mail), but no such notice, request, demand, claim, or
other communication shall be deemed to have been duly given unless and
until it actually is received by the intended recipient. Any Party may
change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other
Party notice in the manner herein set forth.
(h) Governing Law. This Agreement and matters connected with the
performance thereof shall be construed, interpreted, applied and
governed in all respects in accordance with the laws of the State of
Delaware, without giving effect to any choice or conflict of law
provision or rule (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware. Any suit or action
under this Agreement commenced by either party shall be brought before
a court of competent jurisdiction in the State of Delaware and each
party hereby consents to the jurisdiction and venue of such court
under such circumstances.
(i) Attorneys Fees. The successful party in any suit or action
brought by one party against the other party concerning this Note or
the performance thereof shall be entitled to recover its reasonable
attorney fees and out of pocket expenses from the other party.
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(j) Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed
by Airspan and DSC. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or
subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of
any prior or subsequent such occurrence.
(k) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and
provisions hereof or the validity or enforceability of the offending
term or provision in any other situation or in any other jurisdiction.
(l) Expenses. Each of the Parties will bear its own costs and
expenses (including legal fees and expenses) incurred in connection
with this Agreement and the transactions contemplated hereby, provided
Airspan's shall not exceed U.S.$60,000.
(m) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity
or question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the Parties and no presumption or
burden of proof shall arise favoring or disfavoring any Party by virtue
of the authorship of any of the provisions of this Agreement. Any
reference to any federal, state, local, or foreign statute or law shall
be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. The word "including"
shall mean including without limitation.
(n) Incorporation of Exhibits and Schedules. The Exhibits and
Schedules identified in this Agreement are incorporated herein by
reference and made a part hereof.
(o) Bulk Transfer Laws. Airspan acknowledges that DSC will not
comply with the provisions of any bulk transfer laws of any
jurisdiction in connection with the transactions contemplated by this
Agreement.
*****
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
AIRSPAN COMMUNICATIONS CORPORATION
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President, Secretary and Treasurer
DSC COMMUNICATIONS CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Finance
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