EXHIBIT 99.2
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT dated as of February 20, 2001 (this
"Agreement") between BLUE WAVE SYSTEMS INC., a Delaware corporation ("Issuer"),
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and MOTOROLA, INC., a Delaware corporation ("Grantee").
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WHEREAS, Issuer, Grantee, and a wholly-owned subsidiary of Grantee
(the "Merger Sub") propose to enter into an Agreement and Plan of Merger, to be
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dated as of this date (the "Merger Agreement"), pursuant to which Merger Sub is
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to merge with and into Issuer, with Issuer continuing as the surviving
corporation and a wholly-owned subsidiary of Grantee after such merger, and in
such merger, each share of common stock, par value $0.01 per share, of Issuer
("Common Stock") will be converted to a right to receive shares of common stock,
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par value $3.00 per share, of Grantee as provided in the Merger Agreement;
WHEREAS, as an inducement and condition to Grantee's willingness to
enter into the Merger Agreement and in consideration thereof, Issuer is granting
to Grantee, pursuant to the terms and subject to the conditions contained in
this Agreement, an option to purchase 19.9% of the outstanding shares of Common
Stock; and
WHEREAS, the Board of Directors of Issuer has approved the grant by
Issuer to Grantee of the Option (defined below) pursuant to this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth in this Agreement and in the Merger
Agreement, the parties agree as follows:
1. The Option. Issuer hereby grants to Grantee an unconditional,
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irrevocable option (the "Option") to purchase, pursuant to the terms and subject
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to the conditions hereof, up to 3,340,672.90 fully paid and nonassessable shares
of Common Stock, at a price of $8.00 per share (the "Option Price"); provided,
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however, that in no event shall the number of shares for which the Option is
exercisable exceed 19.9% of the shares of Common Stock issued and outstanding at
the time of exercise (without giving effect to the shares of Common Stock issued
or issuable under the Option). The number of shares of Common Stock purchasable
upon exercise of the Option and the Option Price are subject to adjustment as
set forth in this Agreement.
2. Exercise; Closing.
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(a) Conditions to Exercise; Termination. Grantee may exercise the
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Option, in whole or in part, from time to time, if but only if a Triggering
Event has occurred, and prior to the occurrence of an Exercise Termination Event
(as defined below). The right to exercise the Option shall terminate upon the
earlier of (i) the occurrence of the Effective Time (as defined in the Merger
Agreement) or (ii) if a Notice Date (as defined in Section 2(d)) has not
previously occurred, the close of business on the day that is twelve months
after the date of a Triggering
Event (the events described in clauses (i) and (ii) each being referred to as an
"Exercise Termination Event").
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(b) Triggering Event. A "Triggering Event" shall have occurred at
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such time at which Grantee becomes entitled to receive the Termination Fee from
Issuer pursuant to Section 8.5(b) of the Merger Agreement.
(c) Notice of Trigger Event by Issuer. Issuer shall notify Grantee
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promptly in writing of the occurrence of any Triggering Event (it being
understood that the giving of the notice by Issuer shall not be a condition to
the right of Grantee to exercise the option).
(d) Notice of Exercise. If Grantee shall be entitled to and desires
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to exercise the Option, in whole or in part, it shall send to Issuer a written
notice (any date on which this notice is given in accordance with Section 15 is
referred to as a "Notice Date") specifying (i) the total number of shares that
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Grantee will purchase pursuant to the exercise and (ii) a place and date (a
"Closing Date") not earlier than three business days nor later than 60 business
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days from the related Notice Date for the closing of the purchase (a "Closing");
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provided, that (A) if the Closing cannot be consummated by reason of any
applicable judgment, decree, order, law or regulation, the period of time
referred to in clause (ii) shall commence on the date on which such restriction
on consummation has expired or been terminated and (B) without limiting the
foregoing, if a filing or any approval is required under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), or prior
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notification to or prior approval from any regulatory authority is required
under any other law, statute, rule or regulation (including applicable rules and
regulations of national securities exchanges) in connection with this purchase,
Grantee or Issuer, as required, promptly after the Notice Date, shall file all
necessary notices and applications for approval and shall expeditiously process
the same and the period of time referred to in clause (ii) shall commence on the
date on which all required notification and waiting periods, if any, shall have
expired or been terminated and all required approvals, if any, shall have been
obtained. Any exercise of the Option shall be deemed to occur on the date of
the Notice Date relating thereto. Each of Grantee and Issuer agrees to use its
reasonable best efforts to cooperate with and provide information to the other,
for the purpose of any required notice or application for approval.
(e) Payment of Purchase Price; Delivery of Common Stock.
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(i) At each Closing, Grantee shall tender to Issuer payment of
the aggregate purchase price for the shares of Common Stock purchased
pursuant to the exercise of the Option in immediately available funds and
shall, upon designation of a bank account by Issuer, make payment of such
funds by a wire transfer to the bank account designated by Issuer;
provided, that failure or refusal of Issuer to designate a bank account
shall not preclude Grantee from exercising the Option, in whole or in part.
(ii) At each Closing, simultaneously with the payment of the
aggregate purchase price by Grantee, Issuer shall deliver to Grantee a
certificate or certificates representing the number of shares of Common
Stock purchased by Grantee and, if the Option shall be exercised in part
only, a new Agreement providing for an Option
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evidencing the rights of Grantee to purchase the balance (as adjusted
pursuant to the terms hereof) of the shares then purchasable hereunder.
(iii) Notwithstanding anything to the contrary contained in
paragraphs (i) and (ii) of this Section 2(e), Grantee shall have the right
(a "Cashless Exercise Right") to direct the Issuer, in the written notice
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of exercise referred to in Section 2(d), to reduce the number of shares of
Common Stock required to be delivered by Issuer to Grantee at any Closing
by such number of shares of Common Stock that have an aggregate
Market/Offer Price (as defined in Section 9(a)) equal to the aggregate
purchase price payable at such Closing (but for this paragraph (iii)), or
any portion thereof, in lieu of Grantee paying to the Issuer at such
Closing such aggregate purchase price or portion thereof, as the case may
be. Any exercise of the Option in which, and to the extent to which,
Grantee exercises its Cashless Exercise Right pursuant to this paragraph
(iii) shall be referred to as a "Cashless Exercise."
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(f) Restrictive Legend. Certificates for Common Stock delivered at a
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Closing may be endorsed with a restrictive legend that shall read substantially
as follows:
"The transfer of the shares represented by this certificate is
subject to certain provisions of an agreement between the
registered holder hereof and Issuer, a copy of which agreement is
on file at the principal office of Issuer, and to resale
restrictions arising under the Securities Act of 1933, as
amended. A copy of the aforementioned agreement will be mailed to
the holder without charge promptly after receipt by Issuer of a
written request therefor."
It is understood and agreed that: (i) the reference to the resale restrictions
of the Securities Act of 1933, as amended (the "Securities Act"), in the above
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legend shall be removed by delivery of substitute certificate(s) without this
reference if Grantee shall have delivered to Issuer a copy of a letter from the
staff of the Securities and Exchange Commission, or a written opinion of
counsel, in form and substance reasonably satisfactory to Issuer, to the effect
that this legend is not required for purposes of the Securities Act; (ii) the
reference to the provisions of this Agreement in the above legend shall be
removed by delivery of substitute certificate(s) without such reference if the
shares have been sold or transferred in compliance with the provisions of this
Agreement and under circumstances that do not require the retention of such
reference; and (iii) the legend shall be removed in its entirety if the
conditions in the preceding clauses (i) and (ii) both are satisfied. In
addition, the certificates shall bear any other legend as may be required by
applicable law.
(g) Ownership of Record; Tender of Purchase Price; Expenses. Upon
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the giving by Grantee to Issuer of the written notice of exercise referred to in
Section 2(d) and, except to the extent this notice relates to a Cashless
Exercise, the tender of the applicable purchase price in immediately available
funds, Grantee shall be deemed to be the holder of record of the shares of
Common Stock issuable upon the exercise, notwithstanding that the stock transfer
books of Issuer shall then be closed or that certificates representing the
shares of Common Stock shall not have been actually delivered to Grantee.
Issuer shall pay all expenses, and any and all United States federal, state and
local taxes and other charges that may be payable
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in connection with the preparation, issuance and delivery of stock certificates
under this Section 2 in the name of Grantee or its assignee, transferee or
designee.
3. Covenants of Issuer. In addition to its other agreements and
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covenants, Issuer agrees:
(a) Shares Reserved for Issuance. To maintain, free from
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preemptive rights, sufficient authorized but unissued or treasury shares of
Common Stock so that the Option may be fully exercised without additional
authorization of Common Stock after giving effect to all other options,
warrants, convertible securities and other rights of third parties to purchase
shares of Common Stock;
(b) No Avoidance. Not to avoid or seek to avoid (whether by
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charter amendment or through reorganization, consolidation, merger, issuance of
rights, dissolution or sale of assets, or by any other voluntary act) the
observance or performance of any of the covenants, agreements or conditions to
be observed or performed hereunder by Issuer and not to take any action which
would cause any of its representations or warranties not to be true in any
material respect; and
(c) Registration. If shares of Common Stock or any other
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securities to be acquired upon exercise of the Option are then listed on the
Nasdaq or any other securities exchange or market, Issuer, upon the request of
Grantee, will promptly file an application to list the shares of Common Stock or
other securities to be acquired upon exercise of the Option on the Nasdaq or
such other securities exchange or market and will use its reasonable best
efforts to obtain approval of such listing as soon as practicable.
(d) Further Assurances. Promptly after this date to take all
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actions as may from time to time be required (including (i) complying with all
applicable premerger notification, reporting and waiting period requirements
under the HSR Act and (ii) in the event that any other prior approval of or
notice to any regulatory authority is necessary under any applicable federal,
state or local law before the Option may be exercised, cooperating fully with
Grantee in preparing and processing the required applications or notices) in
order to permit Grantee to exercise the Option and purchase shares of Common
Stock pursuant to such exercise.
4. Representations and Warranties of Issuer. Issuer hereby
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represents and warrants to Grantee that Issuer has all requisite corporate power
and authority and has taken all corporate action necessary to authorize,
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby; and that this Agreement has
been duly and validly authorized, executed and delivered by Issuer. Issuer
hereby further represents and warrants to Grantee that it has taken all
necessary corporate action to authorize and reserve for issuance upon exercise
of the Option the number of shares of Common Stock equal to the maximum number
of shares of Common Stock at any time or from time to time issuable upon
exercise of the Option and that all shares of Common Stock, upon issuance
pursuant to the Option, will be delivered free and clear of all claims, liens,
encumbrances, and security interests (other than those created by this Agreement
and the Securities Act) and not subject to any preemptive rights. Issuer has
taken all action necessary to make inapplicable to Grantee any state takeover,
business combination, control share or other similar statute and any charter
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provisions which would otherwise be applicable to Grantee or any transaction
involving Issuer and Grantee by reason of the grant of the Option, the
acquisition of beneficial ownership of shares of Common Stock as a result of the
grant of the Option, or the acquisition of shares of Common Stock upon exercise
of the Option.
5. Representations and Warranties of Grantee. Grantee hereby
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represents and warrants to Issuer that Grantee has all requisite corporate power
and authority and has taken all corporate action necessary in order to
authorize, execute, deliver and perform its obligations under this Agreement and
to consummate the transactions contemplated hereby. This Agreement has been
duly and validly authorized, executed and delivered by Grantee. Grantee
represents and warrants to Issuer that any shares of Common Stock acquired upon
exercise of the Option will be acquired for Grantee's own account, and will not
be, and the Option is not being, acquired by Grantee with a view to the
distribution thereof in violation of any applicable provision of the Securities
Act. Grantee has such knowledge and experience in business and financial
matters as to be capable of utilizing the information which is available to
Grantee to evaluate the merits and risks of an investment by Grantee in the
Common Stock and Grantee is able to bear the economic risks of any investment in
the shares of Common Stock which Grantee may acquire upon exercise of the
Option.
6. Exchange; Replacement. This Agreement and the Option are
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exchangeable, without expense, at the option of Grantee, upon presentation and
surrender of this Agreement at the principal office of Issuer, for other
Agreements providing for Options of different denominations entitling the holder
thereof to purchase on the same terms and subject to the same conditions as set
forth in this Agreement in the aggregate the same number of shares of Common
Stock purchasable at such time hereunder, subject to corresponding adjustments
in the number of shares of Common Stock purchasable upon exercise so that the
aggregate number of such shares under all Agreements issued in respect of this
Agreement shall not exceed 19.9% of the outstanding shares of Common Stock of
the Issuer (without giving effect to shares of Common Stock issued or issuable
pursuant to the Option). Unless the context shall require otherwise, the terms
"Agreement" and "Option" as used in this Agreement include any Agreements and
related options for which this Agreement (and the Option granted hereby) may be
exchanged. Upon (i) receipt by Issuer of reasonably satisfactory evidence of
the loss, theft, destruction, or mutilation of this Agreement, (ii) receipt by
Issuer of reasonably satisfactory indemnification in the case of loss, theft or
destruction and (iii) surrender and cancellation of this Agreement in the case
of mutilation, Issuer will execute and deliver a new Agreement of like tenor and
date. Any new Agreement executed and delivered shall constitute an additional
contractual obligation on the part of Issuer, whether or not the Agreement so
lost, stolen, destroyed or mutilated shall at any time be enforceable by any
Person (as defined in the Merger Agreement) other than the holder of the new
Agreement.
7. Adjustments. The total number of shares of Common Stock
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purchasable upon the exercise of the Option and the Option Price shall be
subject to adjustment from time to time as follows: in the event of any change
in, or distribution in respect of, the outstanding shares of Common Stock by
reason of stock dividends, split-ups, mergers, recapitalizations, combinations,
subdivisions, conversions, exchanges of shares or the like, the type (including,
in the event of any Major Transaction described in Section 9(d) in which Issuer
is not the surviving or continuing corporation, to provide that the Option shall
be exercisable for shares of common
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stock of the surviving or continuing corporation in such Major Transaction) and
number of shares of Common Stock purchasable upon exercise of the Option and the
Option Price shall be appropriately adjusted in such manner as shall fully
preserve the economic benefits contemplated hereby, and proper provision shall
be made in the agreements governing any such transactions to provide for the
proper adjustment and the full satisfaction of Issuer's obligation hereunder.
8. Registration. At any time within two years of the first exercise
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of the Option, Issuer shall, at the request of Grantee, as promptly as
practicable, prepare, file and keep current a registration statement (including,
if appropriate, a shelf registration statement) under the Securities Act
covering any or all shares issued and issuable pursuant to the Option and shall
use its reasonable best efforts to cause this registration statement to become
effective and remain current in order to permit the sale or other disposition of
any shares of Common Stock issued upon total or partial exercise of the Option
("Option Shares") in accordance with any plan of disposition reasonably
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requested by Grantee. Issuer will use its reasonable best efforts to cause such
registration statement to remain effective for a period of 365 days or such
shorter time as is reasonably appropriate to effect such sales or other
dispositions. Grantee shall have the right to demand two such registrations.
To the extent reasonably requested by Grantee in connection with those demand
registrations, Issuer shall (x) become a party to any underwriting agreement
relating to the sale of such shares, but only to the extent of obligating Issuer
in respect of representations, warranties, indemnities, contribution and other
agreements (in each case reasonably acceptable to Issuer) customarily made by
issuers in these underwriting agreements, and (y) use its reasonable best
efforts to take all further actions which shall be reasonably necessary to
effect such registration and sale (including participating in road-show
presentations and causing to be delivered customary certificates, opinions of
counsel and "comfort letters"). The obligations of Issuer to file a
registration statement and to maintain its effectiveness may be suspended for
one or more periods of time not exceeding 90 calendar days in the aggregate with
respect to any registration statement if the Board of Directors of Issuer shall
have determined that the filing of such registration statement or the
maintenance of its effectiveness would require disclosure of nonpublic
information that would materially and adversely affect Issuer or would interfere
with a planned merger, sale of material assets, recapitalization or other
significant corporate action (other than the issuance of equity securities).
Any registration statement prepared and filed under this Section, and any sale
covered thereby, shall be at Issuer's expense except for underwriting discounts
or commissions and brokers' fees, which shall be borne solely by Grantee.
Grantee shall provide in writing all information reasonably requested by Issuer
for inclusion in any registration statement to be filed hereunder. If, during
the time periods referred to in the first sentence of this Section, Issuer
effects a registration under the Securities Act of Issuer's equity securities
for its own account or for any other of its stockholders (other than on Form S-4
or Form S-8, or any successor form), it shall allow Grantee the right to
participate in such registration; provided that, if the managing underwriters of
such offering advise Issuer that in their opinion the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering on a commercially reasonable basis, priority shall be
given to the securities intended to be included therein by Issuer for its own
account and, thereafter, Issuer shall include the securities requested to be
included therein by Grantee pro rata with the securities intended to be included
therein by other stockholders of Issuer. In connection with any registration
pursuant to this Section, Issuer and Grantee shall provide each other with
representations, warranties, indemnities and other agreements customarily given
in connection with such registrations.
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9. Repurchase of Option and/or Shares.
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(a) Repurchase; Repurchase Price. Upon the occurrence of a
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Triggering Event and prior to an Exercise Termination Event, at the request of
Grantee, delivered in writing within twelve months of this occurrence (or such
later period as provided in Section 2(d) with respect to any required notice or
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application or in Section 10), Issuer shall repurchase the Option from Grantee,
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in whole or in part, at a price (the "Option Repurchase Price") equal to the
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number of shares of Common Stock then purchasable upon exercise of the Option
(or such lesser number of shares as may be designated in the Repurchase Notice
(as defined in Section 9(b)) multiplied by the amount by which the Market/Offer
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Price (as defined below) exceeds the Option Price. The term "Market/Offer
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Price" shall mean the highest of (x) the highest price per share of Common Stock
paid or proposed to be paid by any Third Party (as defined in the Merger
Agreement) for shares of Common Stock or the consideration per share of Common
Stock received or to be received by holders of shares of Common Stock, in each
case pursuant to any Acquisition Proposal (as defined in the Merger Agreement)
for or with Issuer made on or prior to such date or (y) the average closing
price for shares of Common Stock on the Nasdaq National Market System ("Nasdaq")
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(or, if the Common Stock is not then listed on the Nasdaq, any other national
securities exchange or automated quotation system on which the Common Stock is
then listed or quoted) for the ten consecutive trading days immediately
preceding the delivery of the Repurchase Notice. In the event that the
consideration to be offered, paid or received pursuant to the foregoing clause
(x) is other than cash, the value of such consideration shall be determined in
good faith by a nationally recognized investment banking firm selected by
Grantee, as the case may be.
(b) Method of Repurchase. Subject to the terms of Section 9(a),
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Grantee may exercise its right to require Issuer to repurchase the Option, in
whole or in part, pursuant to this Section 9 by surrendering for this purpose to
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Issuer, at its principal office, this Agreement accompanied by a written notice
or notices stating that Grantee elects to require Issuer to repurchase the
Option in accordance with the provisions of this Section 9 (each such notice, a
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"Repurchase Notice"). Within four business days after the surrender of the
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Agreement for the Option and the receipt of the Repurchase Notice, Issuer shall
deliver or cause to be delivered to Grantee the applicable Option Repurchase
Price or the portion that Issuer is not then prohibited under applicable law and
regulation from so delivering, in immediately available funds by a wire transfer
to a bank account designated by Grantee. In the event that the Repurchase
Notice shall request the repurchase of the Option in part, Issuer shall deliver
with the Option Repurchase Price a new Agreement evidencing the right of the
Grantee to purchase that number of shares of Common Stock purchasable pursuant
to the Option at the time of delivery of the Repurchase Notice minus the number
of shares of Common Stock represented by that portion of the Option then being
repurchased.
(c) Effect of Statutory or Regulatory Restraints on Repurchase.
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To the extent that, upon or following the delivery of a Repurchase Notice,
Issuer is prohibited under applicable law or regulation from repurchasing the
Option (or a portion thereof) subject to such Repurchase Notice (and Issuer
hereby undertakes to use its reasonable best efforts to obtain all required
regulatory and legal approvals and to file any required notices as promptly as
practicable in order to accomplish this repurchase), Issuer shall promptly so
notify Grantee in writing and thereafter deliver or cause to be delivered, from
time to time, to Grantee the portion of the Option
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Repurchase Price that Issuer is no longer prohibited from delivering, within
four business days after the date on which it is no longer so prohibited;
provided, however, that upon notification by Issuer in writing of this
prohibition, Grantee may, within 5 days of receipt of this notification from
Issuer, revoke in writing its Repurchase Notice, whether in whole or to the
extent of the prohibition, whereupon, in the latter case, Issuer shall promptly
(i) deliver to Grantee that portion of the Option Repurchase Price that Issuer
is not prohibited from delivering; and (ii) deliver to Grantee with respect to
the Option, a new Agreement evidencing the right of Grantee to purchase that
number of shares of Common Stock for which the surrendered Agreement was
exercisable at the time of delivery of the Repurchase Notice less the number of
shares as to which the Option Repurchase Price has theretofore been delivered to
Grantee. Notwithstanding anything to the contrary in this Agreement, including,
without limitation, the time limitations on the exercise of the Option, Grantee
may exercise the Option at least until six months after the date upon which
Issuer is no longer prohibited from delivering all of the Option Repurchase
Price.
(d) Major Transactions. Issuer hereby agrees that, prior to the
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occurrence of an Exercise Termination Event, Issuer shall not enter into or
agree to enter into any agreement for a Major Transaction (defined below) unless
the other party or parties thereto agree to assume in writing Issuer's
obligations under this Agreement. "Major Transaction" shall mean any merger or
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consolidation involving the Issuer and any transaction involving a sale,
transfer or other disposition of a majority of the assets or shares of capital
stock of the Issuer.
10. Extension of Exercise Periods. The twelve month periods for
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exercise of certain rights under Sections 2 and 9 shall be extended in each such
case at the request of Grantee to the extent necessary to avoid liability by
Grantee under Section 16(b) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), by reason of this exercise.
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11. Limitation on Profit.
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(a) Notwithstanding any other provision of this Agreement, in no
event shall the Total Profit (as defined below) plus any Termination Fee (as
defined in the Merger Agreement) exceed in the aggregate the Termination Fee (as
defined in the Merger Agreement) and, if it otherwise would exceed this amount,
the Grantee, at its sole election, shall either (i) reduce the number of shares
of Common Stock subject to this Option, (ii) upon return of the purchase price
paid by Grantee for such Option Shares, deliver to the Issuer for cancellation
Option Shares previously purchased by Grantee, (iii) pay to the Issuer cash or
refund in cash all or a portion, as appropriate, of the Termination Fee
previously paid or reduce or waive the amount of any Termination Fee payable
pursuant to Section 8.5(b) of the Merger Agreement, or (iv) any combination
thereof, so that Grantee's realized Total Profit, when aggregated with the
Termination Fee so paid or payable to Grantee, shall not exceed the Termination
Fee (as defined in the Merger Agreement) after taking into account the foregoing
actions.
(b) Notwithstanding any other provision of this Agreement, the
Option may not be exercised for a number of shares as would, as of the date of
exercise, result in a Notional Total Profit (as defined below) which, together
with the Termination Fee theretofore paid or then payable to Grantee (and not
repaid or refunded to the Issuer pursuant to Section 11 or otherwise), would
exceed the Termination Fee (as defined in the Merger Agreement) provided, that
nothing in this sentence shall restrict any exercise of the Option permitted
hereby on any subsequent date.
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(c) As used in this Agreement, the term "Total Profit" shall mean the
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aggregate amount (before taxes) of the following: (i) the amount received by
Grantee pursuant to Issuer's repurchase of the Option (or any portion thereof)
pursuant to Section 9, and (ii) (x) the net cash amounts (and the fair market
value of any other consideration) received by Grantee pursuant to the sale of
Option Shares (or any other securities into which such Option Shares are
converted or exchanged) to any unaffiliated party, less (y) the Grantee's
purchase price of such Option Shares. In the case of clause (ii)(x) above, the
Grantee agrees to furnish as promptly as reasonably practicable after any
disposition of all or a portion of the Option Shares a complete and correct
statement, certified by a responsible executive officer of Grantee of the net
cash amounts (and the fair market value of any other consideration) received in
connection with any sale or transfer of the Option Shares.
(d) As used in this Agreement, the term "Notional Total Profit" with
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respect to any number of shares as to which Grantee may propose to exercise the
Option shall be the Total Profit determined as of the date of such proposal
(taking into account the provision of Section 11(a)) assuming that the Option
were exercised on such date for such number of shares and assuming that such
shares, together with all other Option Shares held by Grantee as of such date
were sold for cash at the closing market price for the Common Stock on the
Nasdaq Composite Transaction Tape as of the close of business on the preceding
trading day (less customary brokerage commissions).
12. Assignment. Grantee may not, without the prior written consent
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of Issuer (which shall not be unreasonably withheld), assign this Agreement or
the Option to any other Person, except that Grantee may assign its rights and
obligations hereunder to an affiliate of Grantee, provided that the affiliate
becomes a party to this Agreement. This Agreement shall not be assignable by
Issuer except by operation of law. Subject to the foregoing, this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
13. Filings; Other Actions. Each party will use its reasonable best
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efforts to make all filings with, and to obtain consents of, all third parties
and governmental authorities necessary for the consummation of the transactions
contemplated by this Agreement.
14. Specific Performance. The parties acknowledge that damages would
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be an inadequate remedy for a breach of this Agreement by either party and that
the obligations of the parties shall be specifically enforceable through
injunctive or other equitable relief.
15. Severability; Etc. If any term, provision, covenant, or
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restriction contained in this Agreement is held by a court or a federal or state
regulatory agency of competent jurisdiction to be invalid, void, or
unenforceable, the remainder of the terms, provisions, covenants, and
restrictions contained in this Agreement shall remain in full force and effect,
and shall in no way be affected, impaired, or invalidated. If for any reason a
court or regulatory agency determines that Grantee is not permitted to acquire,
or Issuer is not permitted to repurchase pursuant to Section 9, any portion of
the Option or the full number of shares of Common Stock provided in Section 1
(as adjusted pursuant Section 1 and 7), it is the express intention of the
parties to allow Grantee to acquire or to require Issuer to repurchase such
lesser portion of the Option or number of shares as may be permissible, without
any amendment or modification of this Agreement.
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16. Notices. All notices, requests, instructions, or other documents
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to be given hereunder shall be furnished in accordance with Section 9.7 of the
Merger Agreement.
17. Expenses. Except as otherwise expressly provided in this Agreement
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or in the Merger Agreement, all costs and expenses incurred in connection with
this Agreement and the transactions contemplated by this Agreement shall be paid
by the party incurring the expense, including fees and expenses of its own
financial consultants, investment bankers, accountants, and counsel.
18. Entire Agreement, Etc. This Agreement and Merger Agreement constitute
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the entire agreement, and supersede all other prior agreements, understandings,
representations and warranties, both written and oral, between the parties, with
respect to the subject matter of this Agreement. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted assigns. Nothing in this
Agreement, expressed or implied, is intended to confer upon any party, other
than the parties, and their respective successors and permitted assigns, any
rights, remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
19. Captions. The section, paragraph and other captions in this
--------
Agreement are for convenience of reference only, do not constitute part of this
Agreement and shall not be deemed to limit or otherwise affect any of the
provisions of this Agreement.
20. Counterparts. This Agreement may be executed in one or more
------------
counterparts, and by both parties in separate counterparts, each of which when
exercised shall be deemed to be an original, but all of which shall constitute
one and the same agreement.
21. Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of Delaware without giving effect to
the principles of conflicts of law thereof.
22. Waiver and Amendment. Any provision of this Agreement may be
--------------------
waived at any time by the party that is entitled to the benefits of such
provision. This Agreement may not be modified, amended, altered or supplemented
except upon the execution and delivery of a written agreement executed by the
parties hereto.
[signature page follows]
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the parties hereto as of the date
first written above.
MOTOROLA, INC.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
BLUE WAVE SYSTEMS INC.
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
11