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EXHIBIT 10.7
ACQUISITION AND LICENSE AGREEMENT
BETWEEN
INTERNATIONAL BUSINESS MACHINES CORPORATION
AND
TRITON NETWORK SYSTEMS, INC.
DATED AS OF
FEBRUARY 29, 2000
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TABLE OF CONTENTS
SECTION TITLE
SECTION 1 DEFINITIONS
SECTION 2 PURCHASE AND SALE
SECTION 3 PERSONNEL
SECTION 4 PAYMENT
SECTION 5 TAX MATTERS
SECTION 6 RESPONSIBILITIES OF IBM
SECTION 7 RESPONSIBILITIES OF TRITON
SECTION 8 LICENSES
SECTION 9 REPRESENTATIONS AND WARRANTIES OF IBM
SECTION 10 Reserved
SECTION 11 REPRESENTATIONS AND WARRANTIES OF TRITON
SECTION 12 RESTRICTIONS ON TRANSFERABILITY OF SHARES
SECTION 13 CONSENTS AND SUBROGATED WORK
SECTION 14 CONDITIONS OF EFFECTIVENESS OF SALE AND LICENSES;
POST CLOSING COVENANTS
SECTION 15 LIMITATION OF LIABILITY
SECTION 16 COMMUNICATIONS
SECTION 17 GENERAL PROVISIONS
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TABLE OF SCHEDULES AND EXHIBITS
SCHEDULE TITLE
SCHEDULE 1A Furniture, Fixtures and Equipment
SCHEDULE 1B Acquired Contracts
SCHEDULE 1C IBM Knowledge employees
SCHEDULE 1D Identified Employees
SCHEDULE 1E Identified Products
SCHEDULE 1F Disclosures
SCHEDULE 1G Patents
SCHEDULE 1H Inventory
SCHEDULE 1I IBM Licensed Software
SCHEDULE 1J IBM Workstation Software
SCHEDULE 1K Documentation
SCHEDULE 1L reserved
SCHEDULE 1M Vendor Agreements
SCHEDULE 1N Other Acquired Software Assets
SCHEDULE 1O Affected Employees
SCHEDULE 1P Third Party Workstation Software
SCHEDULE 1Q Acquired Software Assets
SCHEDULE 1R reserved
SCHEDULE 1S Masks
SCHEDULE 1T Holder Agreements
SCHEDULE 3.1 Summary of TRITON's Terms of Employment
SCHEDULE 3.3 Support Employees
SCHEDULE 4.5 Accounts Payable
SCHEDULE 5.1 Allocation of Purchase Price
SCHEDULE 8.2 IBM Workstation Software Licenses
SCHEDULE 9.17 Contract Status
SCHEDULE 9.27 Tangible Assets
SCHEDULE 9.28 Software
SCHEDULE 9.6 Claims
SCHEDULE 9.18 Contractual Commitments
SCHEDULE 14.3(c) Consents
SCHEDULE 17.4 Press Release
EXHIBIT TITLE
EXHIBIT I Reserved
EXHIBIT II Sublease Agreement
EXHIBIT III Reserved
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EXHIBIT IV Amended and Restated Certificate of Incorporation
EXHIBIT V Investor Rights Agreement
EXHIBIT VI ▇▇▇▇ of Sale
EXHIBIT VII Assignment and Assumption Agreement
EXHIBIT VIII EDA Program Agreement
EXHIBIT IX Letter Agreement
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Agreement Reference Number L003806
ACQUISITION AND LICENSE AGREEMENT
THIS ACQUISITION AND LICENSE AGREEMENT (this "Agreement") is dated as
of the 29th day of February, 2000, by and between International Business
Machines Corporation, a New York corporation, ("IBM"), and Triton Network
Systems, Inc., a corporation of Delaware ("TRITON") (each a "Party,"
collectively the "Parties").
WHEREAS, IBM possesses certain intellectual property rights and
tangible assets useful for the manufacture and sale of Broadband Products
(defined below); and
WHEREAS, TRITON now wishes to acquire and IBM wishes to sell, assign,
delegate or license, as the case may be, certain of such rights and assets, and
certain contracts and liabilities related thereto.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, IBM and TRITON agree as follows:
SECTION 1. DEFINITIONS
The following words shall have the following meanings when used in this
Agreement:
"Acquired Assets" shall mean the Acquired Contracts, the Acquired
Software Assets, the Other Acquired Software Assets, the Invention Disclosures,
the Vendor Contracts, Inventory, and the Furniture, Fixtures and Equipment, the
Masks, the Board Design, the Deliverable Documentation and the Holder
Agreements.
"Acquired Contracts" shall mean the contracts between IBM and its
customers to be transferred to TRITON as set forth on Schedule 1B hereto.
"Acquired Software Assets" shall mean the software in Source Code and
Object Code form that is identified in Schedule 1Q.
"Affected Employees" shall mean the individuals identified as such on
Schedule 10 hereto.
"Amended and Restated Certificate of Incorporation" shall mean the
instrument attached as Exhibit IV.
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"Assignment and Assumption Agreement" shall mean the agreement
attached as Exhibit VII.
"Assumed Liabilities" shall have the meaning set forth in Section
2.3(a).
"▇▇▇▇ of Sale" shall mean the agreement attached as Exhibit VI.
"Board Design" shall mean the schematics and other documentation for
the digital modem module card using CQT8010 as specifically set forth in
Schedule 1K, and IBM's non-patent intellectual property therein.
"Broadband Product" shall mean a product designed to provide
quadrature amplitude modulation and/or phase shift keying modulation for use in
point-to-point fixed wireless or point-to-multipoint fixed wireless
communications applications at a rate of 1.5 Mbps or greater.
"Closing" shall have the meaning set forth in Section 4.2.
"Closing Date" shall have the meaning set forth in Section 4.2.
"Code" shall mean computer programming code. If not otherwise
specified, Code shall include Object Code and Source Code as well as associated
procedural code (such as job control language and build scripts).
"Deliverable Documentation" shall mean the Documentation listed on
Schedule 1K hereto.
"Deliverables" shall mean the Acquired Assets, the Third Party
Workstation Software, the IBM Workstation Software, the IBM Licensed Software
and the Deliverable Documentation.
"Derivative Work" shall mean a work which is based on one or more
preexisting works, such as a revision, Enhancement, modification, translation,
abridgment, condensation, expansion or any other form in which such preexisting
work may be recast, transformed or adapted and which, if prepared without
authorization of the owner of the preexisting work, would constitute copyright
infringement or other infringement of proprietary rights of the owner thereof.
For purposes hereof, a Derivative Work shall also include any compilation that
incorporates such preexisting work.
"Documentation" shall mean manuals, specifications, module
descriptions, logic descriptions, flow charts, principles of operation and
other written materials or diagrams used in, or that relate to the design,
development, modification or use of software either in hard copy (paper form)
or stored or recorded on magnetic media as machine readable text or graphic
files subject to display or printout. "Documentation" includes "User
Documentation."
"EDA Program Agreement" shall mean the agreement attached as Exhibit
VIII.
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"Effective Date" shall mean the later of the third business day
following the date on which all of the conditions set forth in Section 14 have
been satisfied or waived, or such other date as may be agreed upon by IBM and
TRITON, when the Closing shall occur.
"Enhancement" shall mean any change of or addition to software,
including, but not limited to, translations, new releases and versions or
additional programs that improve functions, add new related functions or
improve performance by changes in system design or coding or by the addition of
new Code and Documentation.
"Furniture, Fixtures and Equipment" shall mean those tangible assets
listed on Schedule 1A hereto.
"Governmental Authority" shall mean any federal, state, or local court
of the United States or foreign court, or any governmental or administrative
agency or commission or other governmental authority, instrumentality or
regulatory body.
"Governmental Rule" shall mean any statute, law, treaty, rule, code,
ordinance, regulation or order of any Governmental Authority or any judgment,
decree, injunction, writ, order or like action of any federal, state, or local
court of the United States or foreign court, arbitrator or other judicial
tribunal of competent jurisdiction.
"Holder Agreements" shall mean those agreements listed in Schedule 1T
that restrain or restrict any person from directly or indirectly competing with
the manufacture and sale of the Identified Products or from disclosing
information relating to the intellectual property or other confidential
information relating primarily to the Acquired Contracts.
"HSR Act" shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act
of 1976, as amended.
"IBM Licensed Software" shall mean the items listed on Schedule 1I
hereto.
"IBM Workstation Software" shall mean the software listed on Schedule
1J hereto.
"Identified Employees" shall mean those employees of IBM identified as
such in Schedule 1D.
"Identified Products" shall mean the IBM products specified in
Schedule 1E.
"Invention Disclosures" shall mean those documents listed in Schedule
1F hereto.
"Inventory" shall mean those tangible assets listed in Schedule 1H
hereto.
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"Investor Rights Agreement" shall mean the agreement attached as
Exhibit V.
"Knowledge of IBM" means actual knowledge of the IBM employees listed
on Schedule 1C.
"Letter Agreement" shall mean the agreement attached as Exhibit IX.
"Licensed Patents" shall mean (i) those patents listed in Schedule 1G
hereto, patents issuing from the applications listed in Schedule 1G hereto and
foreign counterparts to such patents, and (ii) any patent licensable by IBM
(where such license would not require payment by IBM to any third party) that
would be infringed by the manufacture, use, sale, offer for sale, import, lease
or other transfer of the Identified Products as they exist on the Effective
Date.
"Masks" shall mean those items listed in Attachment 1S hereto and all
of IBM's mask work rights therein.
"Object Code" shall mean machine readable forms of Code.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity
and frequency).
"Other Acquired Software Assets" shall mean the software in Source
Code and Object Code form that is identified in Schedule 1N.
"Other Technology" shall mean that IBM technical information, data,
formulas, knowledge, processes and/or trade secrets developed or acquired by IBM
which is described in the Acquired Software Assets, Other Acquired Software
Assets, Deliverable Documentation or the Invention Disclosures.
"Permitted Liens" shall mean: (i) liens for Taxes, assessments and
governmental charges due and being contested in good faith by IBM; (ii) any
liens upon any of the Acquired Assets, provided that the same are not of such a
nature that would individually or in the aggregate materially adversely affect
the value of the Acquired Assets; (iii) liens for Taxes either not due and
payable or due but for which notice of assessment has not been given, or which
may thereafter be paid without penalty; (iv) undetermined or inchoate liens,
charges and privileges incidental to current operations or the ordinary course
of business; (v) any statutory liens, charges, adverse claims, security
interests or encumbrances of any nature whatsoever claimed or held by any
Governmental Authority that have not at the time been filed or registered
against title to the Acquired Assets or that relate to obligations that are not
due or delinquent; (vi) security given in the ordinary course of business to
any public utility, Governmental Authority or to any statutory or public
authority in connection with the Acquired Assets; and (vii) other imperfections
of title or encumbrances, if any, which imperfections of title or other
encumbrances do not materially impair the use of the assets to which they
relate.
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"Person" shall mean any individual firm, corporation, partnership,
limited liability company, joint venture, association, trust, unincorporated
organization, government or agency (or subdivision thereof), or any other legal
entity.
"Purchase Price" shall mean the fair market value on the Effective
Date of the consideration referred to in Section 4.1.
"Security Interest" shall mean any mortgage, pledge, lien, encumbrance,
charge, or other security interest, other than (a) mechanics, materialmen's,
and similar liens, (b) liens for Taxes not yet due and payable, (c) purchase
money liens and liens securing rental payments under capital lease
arrangements, and (d) other liens arising in the Ordinary Course of Business
and not incurred in connection with the borrowing of money.
"Software" shall mean computer programs (instructions) that cause
computer hardware to do work.
"Source Code" shall mean human readable forms of Code and related
Documentation, including all comments and any procedural codes such as job
control language.
"Sublease Agreement" shall mean the agreement attached hereto as
Exhibit II.
"Subsidiary" of a party hereto or of a third party shall mean a
corporation, company or other entity:
(a) more than fifty percent (50%) of whose outstanding shares or
securities (representing the right to vote for the election of directors or
other managing authority) are now, or hereafter, owned or controlled, directly
or indirectly, by a Party hereto or such third party, but such corporation,
company or other entity shall be deemed to be a Subsidiary only so long as such
ownership or control exists; or
(b) which does not have outstanding shares or securities, as may be
the case in a partnership, joint venture or unincorporated association, but
more than fifty percent (50%) of the ownership interest representing the right
to make the decisions for such corporation, company or other entity is now or
hereafter, owned or controlled, directly or indirectly, by a party hereto or
such third party, but such corporation, company or other entity shall be deemed
to be a Subsidiary only so long as such ownership or control exists.
"Tax" or "Taxes" shall mean all taxes, imposts, duties, withholdings,
charges, fees, levies, or other assessments imposed by any governmental or
taxing authority, whether domestic or foreign, including but not limited to,
income, gross receipts, excise, property, sales, use, transfer, conveyance,
payroll or other employment related, license, ad valorem, value added,
withholding, social security, national insurance (or other similar
contributions or payments), franchise, estimated severance, stamp taxes, taxes
based upon capital stock or net worth and other taxes (including interest,
fines, penalties, or additions attributable to or imposed on or with
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respect to respect to such amounts and any obligations under any agreement or
arrangements with any Person with respect to such amounts).
"Tax Return" shall have the meaning set forth in Section 5.3.
"Third Party Workstation Software" shall mean that Software (and the
user documentation supplied by its vendor therefor) which is owned by entities
other than IBM, or its Subsidiaries, as listed on Schedule 1P hereto.
"Unassigned Third Party Software" shall mean that Software (and the
user documentation supplied by its vendor therefor) owned by entities other
than IBM, or its Subsidiaries.
"User Documentation" shall mean Documentation which consists of
manuals, brochures and machine readable instructional text or graphic files
subject to display or printout, provided to users of a computer program and
intended primarily to aid in productive use of such program rather than design,
development or modification thereof.
"Vendor Contracts" shall mean those contracts for vendors listed on
Schedule 1M.
SECTION 2. PURCHASE AND SALE
2.1 Upon the terms and subject to the conditions set forth in this Agreement,
IBM hereby sells, transfers, delegates and assigns to TRITON as of the
Effective Date and TRITON hereby purchases or otherwise acquires and accepts
full responsibility for, as of the Effective Date, all of IBM's rights, title
and interest in and to:
(a) the Acquired Contracts;
(b) the Vendor Contracts;
(c) the Inventory;
(d) to the extent they may be transferred, any express or implied
warranties from the suppliers of IBM, manufacturers or others with respect to
the Deliverables;
(e) the Acquired Software Assets and Other Acquired Software Assets;
(f) any rights and obligations of IBM accruing from and after the
Effective Date to any invoice, purchase or sales order, or service order issued
pursuant to the Acquired Contracts; provided, however, that IBM retains the
right to invoice, collect and retain for itself the proceeds from all sales
made and services performed by IBM prior to the Effective Date; and
(g) the Holder Agreements;
(h) the Masks;
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(i) [intentionally blank];
(j) to the extent it has the legal right to do so and subject to the
applicable license agreement with the licensors, its royalty-free usage rights
to the Third Party Workstation Software;
(k) the Furniture, Fixtures and Equipment;
(l) the Board Design; and
(m) the Invention Disclosures, subject to the provisions of Section 8.9.
2.2 TRITON shall be responsible for all accounts payable which accrue on or
after the Effective Date with respect to the Deliverables and that are either
(i) listed on Schedule 2.2 or (ii) that relate to goods and services purchased
prior to the Effective Date in the ordinary course of business and delivered or
performed after the Effective Date. IBM shall remain responsible for any other
accounts payable incurred by it prior to the Effective Date.
2.3 (a) TRITON shall not assume any liabilities or obligations of IBM except
for those liabilities which TRITON expressly assumes pursuant to this
Agreement. On the Effective Date, TRITON will assume the following rights,
obligations and liabilities of IBM (collectively, the "Assumed Liabilities")
and thereafter shall fully perform and discharge on a timely basis, and in
accordance with their respective terms: (i) all rights and obligations under
the Acquired Contracts, the Vendor Contracts, the Holder Agreements and the
Deliverables to the extent that such contracts are actually assigned to TRITON
and only with respect to obligations under those contracts to be performed
after the Effective Date, and (ii) accounts payable to the extent provided in
Section 2.2. Without limiting the generality of the foregoing, except for the
Assumed Liabilities, TRITON is not assuming any liability, obligation or
commitment of any nature of IBM related to IBM's operations prior to the
Effective Date. TRITON agrees to discharge its Assumed Liabilities in
accordance with their terms and conditions and TRITON agrees that IBM shall
have no liability for any failure of TRITON to discharge its Assumed
Liabilities in accordance with their terms and conditions.
(b) The Parties will each use reasonable efforts to obtain written
consents to the transfer and assignment of the Acquired Assets and Assumed
Liabilities to TRITON, and the novation of IBM, where the approval or other
consent of any other Person may be required for these actions. TRITON shall
cooperate with IBM (including, where necessary, entering into appropriate
instruments of assumption as shall be agreed upon) to have IBM released from
all liability to third parties with respect to the Assumed Liabilities, and the
Parties will each solicit such releases concurrently in a manner acceptable to
both Parties, with the solicitation of consents from third parties to the
transfer, assignment and novation of the Assumed Liabilities;
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provided, that, neither Party shall be required to grant any additional
consideration to any third party in order to obtain any such consent, novation,
assumption or release.
2.4 On the Effective Date, IBM shall deliver to TRITON one copy each of the
Deliverable Documentation.
2.5 On the Effective Date, IBM and TRITON shall enter into the Sublease
Agreement and the EDA Program Agreement.
2.6 Unless otherwise mutually agreed by the Parties, the Parties agree to enter
a foundry agreement no later than December 31, 2000, under which IBM will
manufacture products for TRITON under IBM's then-standard commercial terms and
conditions, including pricing.
2.7 For a period of 18 months following the Effective Date, IBM agrees to
provide to Triton, without charge and upon the receipt of appropriate orders,
SiGe services (prototype wafer runs and development services) having an
aggregate value of up to $1,850,000 (one million, eight hundred fifty thousand
dollars), based upon IBM's standard commercial terms and conditions, including
pricing and delivery. Any taxes on such services shall be the responsibility of
Triton. Any contracts entered into under this Section 2.7 may be completed
beyond the 18 month period.
SECTION 3. PERSONNEL
3.1 (a) TRITON agrees that it will make written offers of employment, subject
to the closing of this transaction, to all Affected Employees within four days
of the date of this agreement and employ, subject to the closing of this
transaction, those who accept employment within four days of receiving those
written offers. TRITON will employ such persons at the same salaries and
initially at the same or substantially similar positions as their current
positions, provided that TRITON's ability to reassign and redeploy employees
will not be limited. TRITON will provide all Affected Employees who accept
employment the benefits described in Schedule 3.1 and similar terms and
conditions, including a benefit plan as outlined in Schedule 3.1. Prior periods
of employment with IBM will be considered as employment with the TRITON for the
calculation of severance pay. During the first year after the Effective Date,
TRITON shall implement the following severance pay practice for the Affected
Employees: if an Affected Employee is involuntarily severed without cause from
full-time employment with TRITON, such Affected Employee shall receive one (1)
week of severance pay for each six (6) months of service fully or partially
completed with TRITON or with IBM, with a minimum of eight (8) weeks and a
maximum of twenty-six (26) weeks. Each week of severance pay will be an amount
equal to one week of such Affected Employee's total cash employment
compensation from TRITON for full-time employment. For one year from the
Effective Date, TRITON agrees that it will not change this severance pay
practice as applied to the Affected Employees.
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(b) TRITON shall offer the Affected Employees three weeks of paid
vacation per year. Upon separation from IBM, Affected Employees shall be paid
by IBM for vacation accrued, plus previously deferred vacation, less vacation
taken.
(c) As of the Effective Date, TRITON shall be responsible for all
employer obligations incurred by TRITON in accordance with Section 3.1(a) or
otherwise in accordance with law for the post-Effective Date period for all
Affected Employees who accept employment with TRITON. Such obligations include,
without limitation, COBRA obligations and damages or settlements arising out of
any claims of wrongful termination by TRITON. IBM will remain responsible for
all employer obligations for the Affected Employees incurred by IBM prior to
the Effective Date. IBM will remain responsible for the Affected Employees who
do not accept employment with TRITON.
3.2 In the event that IBM effects a reduction or cessation of the operations
or workforce that exists to service or support the Acquired Assets prior to the
Effective Date, IBM shall perform and undertake all acts as may be necessary to
comply with the applicable provisions of the WARN Act and any analogous state
laws. In the event that TRITON effects a reduction or cessation of the
operations or workforce that exist to service or support the Acquired Assets
subsequent to the Effective Date, TRITON shall perform and undertake all acts
as may be necessary to comply with the applicable provisions of the WARN Act
and analogous state laws.
3.3 IBM is a party to three (3) government-related contracts (the "Government
Contracts"), which are not being assigned or transferred to TRITON, but which
are being performed, in whole or in part, by the Affected Employees identified
in Schedule 3.3 (collectively, the "Support Employees"). In the event that any
Support Employee accepts employment with Triton on or after the Effective Date,
the Parties agree that IBM may, at any time thereafter, hire and use any such
Support Employee to work on the Government Contracts in accordance with the
terms and conditions set forth in the Letter Agreement, which will be signed by
the Parties at Closing.
SECTION 4. CLOSING
4.1 In consideration for the assets, licenses and other rights to be
transferred to TRITON, TRITON shall issue to IBM five million five hundred
thousand (5,500,000) shares of TRITON's Series C Preferred Stock (the
"Shares"), which will represent, after the issuance of these shares at Closing,
approximately 8.8% of the ownership of TRITON on a fully diluted basis, subject
to Section 11.23, and IBM shall become party to TRITON's existing Investor
Rights Agreement.
4.2 The closing of the transactions contemplated by this Agreement (the
Closing") shall be held at the offices of IBM, at 10:00 a.m. on the date which
is two business days following satisfaction or waiver of the last condition to
effectiveness of sale and license set forth in Section 14 hereof, or such other
time and place as the parties may agree (the "Closing Date").
4.3 At the Closing:
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(a) the Parties shall execute and deliver the ▇▇▇▇ of Sale;
(b) TRITON shall deliver a certificate for the Shares;
(c) The parties shall execute and deliver the Investor Rights Agreement;
(d) The Parties shall execute and deliver the Assignment and Assumption
Agreement; and
(e) The Parties shall execute and deliver the Letter Agreement.
SECTION 5. TAX MATTERS
5.1 TRITON and IBM hereby agree to the tax-basis allocation of the Purchase
Price set forth in Schedule 5.1 (the "Allocation Statement"), allocating the
total of the Purchase Price (and other payments properly treated as additional
Purchase Price for Tax purposes) to the different transferred assets pursuant
to Section 1060 of the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations promulgated thereunder.
5.2 TRITON and IBM shall each file all income, franchise and other Tax
Returns (as defined below) in a manner consistent with the Allocation
Statement. TRITON shall prepare Form 8594 under Section 1060 of the Internal
Revenue Code based on Schedule 5.1 and deliver such Form and all documentation
used in the preparation and support of such Form to IBM within 90 days after
the Effective Date.
5.3 IBM shall prepare and file, or cause to be prepared and filed, with the
appropriate authorities all Tax returns, reports and forms (herein "Tax
Returns") and shall pay, or cause to be paid, when due all Taxes relating to
the Deliverables and the ownership of the Acquired Assets attributable to any
taxable period which ends on or prior to the Effective Date (herein
"Pre-Closing Tax Period"). TRITON shall prepare and file, or cause to be
prepared and filed, with the appropriate authorities all Tax Returns, and shall
pay, or cause to be paid, when due all Taxes relating to the Deliverables
attributable to any taxable period which is not part of the Pre-Closing Tax
Period. If, in order to properly prepare its Tax Returns or other documents
required to be filed with Governmental Authorities or in connection with any
audit by any taxing authority or other examination by any taxing authority or
any judicial or administrative proceeding relating to any liability for Taxes,
it is necessary that a party be furnished with additional information,
documents or records relating to the Deliverables, both IBM and TRITON agree to
use reasonable efforts to furnish or make available such nonprivileged
information at the other's request, cost and expense; provided, however, that
neither party shall be entitled to review or examine the Tax Returns of the
other party.
For purposes of this Section 5.3, in the case of any taxable period that
includes (but does not end on) the Effective Date (a "Straddle Period"), the
Taxes for the portion of the Straddle Period prior to and including the
Effective Date (the "Pre-Effective Date Tax Period") shall be computed as if
the Pre-Effective Date Tax Period ended as of the close of business on the
Effective Date and the amount of Taxes for the portion of the Straddle Period
following the Effective Date shall be the excess, if any, of (x) the Taxes for
the Straddle Period over (y) the Taxes for the Pre-Effective Date Tax Period.
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5.4 Any refunds and credits attributable to the Pre-Closing Tax Period shall
be for the account of IBM and any refunds and credits attributable to the
period which is not part of the Pre-Closing Tax Period shall be for the account
of TRITON.
5.5 All transfer, documentary, sales, use, registration, value-added and any
other similar Taxes (including real estate transfer taxes, conveyance, capital
gains or similar taxes) and related fees incurred in connection with this
Agreement, the Sublease Agreement and the transaction contemplated hereby shall
be borne equally by the Parties. To the extent legally able to do so, TRITON
and IBM shall cooperate with each other to obtain exemptions from such Taxes,
provided that neither party shall be obligated to seek any exemption that would
require any audit by a Governmental Authority of its books and records.
SECTION 6. RESPONSIBILITIES OF IBM
6.1 Within ten (10) days after the Effective Date, IBM shall deliver to
TRITON one copy of the Object Code for the IBM Licensed Software.
6.2 IBM shall establish a single point of contact to facilitate the
assignment process set forth herein.
6.3 IBM shall take such additional actions as TRITON may reasonably request
to effect the delivery of the Acquired Assets. IBM shall execute such documents
and, at TRITON's expense, take such other actions as TRITON may reasonably be
requested to assist TRITON in preserving or perfecting its rights in the
Deliverables or to perfect or evidence the assignment or sale to TRITON of the
Acquired Assets.
6.4 IBM shall file any Notification and Report Forms and related material
that may be required to file with the Federal Trade Commission and the
Antitrust Division of the United States Department of Justice under the HSR
Act, will use all reasonable efforts to obtain an early termination of the
applicable waiting period, and will make any further filings pursuant thereto
that may be necessary, proper, or advisable in connection therewith.
SECTION 7. RESPONSIBILITIES OF TRITON
7.1 TRITON shall establish a single point of contact to facilitate the
assignment process set forth herein.
7.2 TRITON shall make offers of employment to the Identified Employees and
the Affected Employees within four days after the date of this Agreement under
the condition that such offers must be accepted, contingent upon the
satisfaction of the other conditions to effectiveness of the
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sale and license hereunder as set forth in Section 14, within four days after
such offer or be deemed rejected.
7.3 TRITON shall cause all IBM trademarks, service marks, trade names and
logos, including design variations thereof, to be removed promptly (and no
later than 30 days after the Effective Date) from all facilities and materials
provided to TRITON hereunder which TRITON provides to the public.
7.4 Except with respect to the Third Party Workstation Software, TRITON shall
be responsible for deleting any and all existing third party software from the
Acquired Assets or notifying the owners of the software or obtaining necessary
licenses for such software.
7.5 TRITON shall be responsible for obtaining necessary licenses from the
owners of Unassigned Third Party Software and for any fees associated
therewith.
7.6 TRITON shall file any Notification and Report Forms and related material
that may be required to file with the Federal Trade Commission and the
Antitrust Division of the United States Department of Justice under the HSR
Act, will use all reasonable efforts to obtain an early termination of the
applicable waiting period, and will make any further filings pursuant thereto
that may be necessary, proper, or advisable in connection therewith.
SECTION 8. LICENSES
8.1 Subject to IBM's receipt of the consideration set forth in Section 4, and
as of the Effective Date, IBM agrees to grant and hereby grants to TRITON a
fully paid-up, worldwide, irrevocable and nonexclusive license to the IBM
Licensed Software to use, reproduce, execute, display, or perform the IBM
Licensed Software, to prepare Derivative Works of the IBM Licensed Software
(subject to IBM's patent rights) and to distribute internally the IBM Licensed
Software and Derivative Works thereof (subject to IBM's patent rights). The
foregoing license does not grant TRITON the right to sublicense the IBM
Licensed Software. Any such Derivative Works shall be owned by TRITON.
8.2 Subject to IBM's receipt of the consideration set forth in Section 4, IBM
agrees to grant and hereby grants to TRITON a fully paid-up and nonexclusive
end-user license to the IBM Workstation Software under IBM's standard terms and
conditions for such Software. Such standard terms and conditions are attached
here as Exhibit 8.2.
8.3 Subject to IBM's receipt of the consideration set forth in Section 4, and
as of the Effective Date, IBM agrees to grant and hereby grants to TRITON a
fully paid-up, worldwide, irrevocable and nonexclusive license, with right of
sublicense (but without any express or implied license under any IBM patent),
to the Other Technology for the purpose of making, using, selling, and
otherwise transferring Broadband Products.
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8.4 IBM hereby reserves, for itself and its Subsidiaries, the right to use the
Residuals of information included in the Deliverable Documentation for any
purpose. The "Residuals" of the information in the Deliverable Documentation
means information of general application or nature, in non-tangible form,
retained in the memories of persons who have had access to it, without further
reference to any material that is written, stored in magnetic, electronic or
physical form, or that is otherwise fixed.
8.5 Subject to IBM's receipt of the consideration set forth in Section 4, and
as of the Effective Date, IBM agrees to grant and hereby grants to TRITON a
fully paid-up, worldwide, irrevocable and non-exclusive license under the
Licensed Patents to make, have made (subject to Section 8.7) for sale by
TRITON, use, sell, offer for sale, import, lease, and otherwise transfer
Broadband Products, provided, however, that no license, express or implied, is
granted to TRITON under the Licensed Patents or any other patent licensable by
IBM, to practice any manufacturing process, including but not limited to
semiconductor manufacturing processes. The license granted under this Section
8.5 does not include the right to sublicense third parties.
8.6 Except as expressly set forth in this Agreement, nothing contained herein
shall be construed as conferring either directly or by implication, estoppel,
or otherwise upon either Party hereunder any license or other right with
respect to any patents or patent applications, trademarks, copyrights, trade
secrets, mask works or other similar intellectual property rights of the other
Party.
8.7 The license granted in Section 8.5 to TRITON to have Broadband Products
made by another manufacturer:
(a) shall only apply when the specifications for such products (other than
the Identified Products) were created by TRITON, either solely or jointly with
one or more third parties; and
(b) shall only be under claims of the Licensed Patents, the infringement of
which would be necessitated by compliance with such specifications.
8.8 In the event that TRITON engages in or suffers any of the following
events:
(a) becomes insolvent, is dissolved or liquidated, files or has filed
against it a petition in bankruptcy, reorganization, dissolution or liquidation
or similar action filed by or against it, is adjudicated as bankrupt, or a
receiver is appointed for its business; or
(b) has all or a substantial portion of its capital stock or assets
expropriated or attached by any government entity;
then TRITON shall offer, on a right of first offer basis, to sell to IBM all
TRITON's ownership interest in and to TRITON's statutory patent rights acquired
from IBM in the patent applications and any issued patents, resulting from the
Invention Disclosures.
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8.9 IBM reserves for itself and its Subsidiaries, a license under the
Invention Disclosures, and all patent applications filed thereon, and patents
issuing therefrom, in any country of the world, a nonexclusive, fully paid-up,
worldwide license to make, have made, use, sell, offer for sale, import, lease,
and otherwise transfer any information handling system product, and to
sublicense those licensees of IBM as of the Effective Date that would have been
required to be licensed under patent applications (and patents issuing
therefrom) filed on the Invention Disclosures if such applications had been
filed by IBM or its Subsidiaries on or before the Effective Date.
8.10 The licenses granted to TRITON hereunder shall be assignable to a
successor in interest to TRITON's Broadband modem business. In such event:
(a) TRITON shall promptly give notice of such acquisition to IBM; and
(b) the license granted to TRITON under Section 8.5 shall not apply to
any products manufactured or sold by such third party following its acquisition
of TRITON that are substantially similar to products it manufactured and sold
prior to acquiring TRITON.
8.11 (a) IBM hereby reserves, for itself and its Subsidiaries, a worldwide,
irrevocable, nonexclusive, and fully paid-up right and license to use,
reproduce, execute, display, perform, create Derivative Works of (subject to
TRITON's patent rights), and distribute the Acquired Software Assets for any
purpose other than the manufacture and sale of Broadband Products.
(b) IBM hereby reserves, for itself and its Subsidiaries, a worldwide,
irrevocable, nonexclusive, and fully paid-up right and license, including the
right to sublicense others, to use, reproduce, execute, display, perform,
create Derivative Works of (subject to TRITON's patent rights), and distribute
the Other Acquired Software Assets for any purpose other than the manufacture
and sale of Broadband Products.
SECTION 9. REPRESENTATIONS AND WARRANTIES OF IBM
Except as otherwise set forth on the Schedule of Disclosures and Exceptions
attached hereto:
9.1 IBM represents and warrants that it has the full right, power, legal
capacity and authority to enter into this Agreement, to perform the
transactions contemplated hereunder and to grant the rights and licenses
granted hereunder and all such actions have been duly authorized by all
necessary corporate proceedings on its part. This Agreement has been duly and
validly executed and delivered by IBM and constitutes the legal, valid and
binding obligation of it and is enforceable against IBM in accordance with its
terms and conditions.
9.2 IBM is a duly incorporated and validly existing corporation in good
standing under the laws of the State of New York, with all requisite corporate
power and authority to own its properties and conduct its business.
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9.3 The execution and delivery by IBM of this Agreement does not, and the
performance by IBM of its obligations hereunder will not:
(a) conflict with, or result in a breach of, any of the provisions of
IBM's Articles of Incorporation or By-laws;
(b) on IBM's part, breach, violate or contravene any Governmental
Rule, or create any right of termination or acceleration or encumbrance against
IBM, that, singly or in the aggregate, would have a material adverse effect on
IBM's authority or ability to perform its obligations under this Agreement; and
(c) on IBM's part, conflict in any respect with, or result in a breach
of or default under, any contract, license, franchise, permit or any other
agreement or instrument to which IBM is a party or by which IBM or any of the
Deliverables may be bound that, singly or in the aggregate, would have a
material adverse effect on the Deliverables or IBM's authority or ability to
perform its obligations under this Agreement (except for agreements and
instruments that require the consent or approval of a third party for the
transactions contemplated by this Agreement).
9.4 Other than compliance with the HSR Act pre-notification requirements, no
material consent, approval or authorization of, or designation, declaration or
filing with, any Governmental Authority on the part of IBM is required in
connection with the execution or delivery by IBM of this Agreement or the
consummation by IBM of the transactions contemplated herein.
9.5 IBM has and will convey good and marketable title to all Acquired
Assets, free and clear of any liens and encumbrances other than Permitted Liens
and other than the Assumed Liabilities, provided however that IBM will remain
responsible for costs associated with Permitted Liens that are not otherwise
included within the Assumed Liabilities. Provided, however, that IBM is not
currently the owner of the Teradyne Tester that appears on the schedules to
this Agreement. This tester is currently owned by a third party and leased to
IBM. Immediately prior to closing, IBM will buy out the remaining period of
that lease and obtain title to that tester.
9.6 Except as set forth on Schedule 9.6, there are no actions, suits,
proceedings or investigations pending or, to the Knowledge of IBM, threatened
in a writing to IBM against or directly affecting the Acquired Assets, at law
or in equity, including any administrative proceedings or condemnation actions
with any Governmental Authority. IBM has not received any written claim made by
a third party prior to the date of this Agreement that IBM's marketing and sale
of the Identified Products infringed any patent, copyright, trade secret, or
trademark of such third party, except as identified in Section 9.6. The
manufacture, use and sale of the Identified Products by TRITON after the
closing, in substantially the same manner as conducted by IBM prior to the
closing, does not violate any third party non-patent intellectual property
right (but not including any third party non-patent intellectual property right
in the Unassigned Third
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Party Software) and, to the Knowledge of IBM, does not violate any third party
patent rights, except as identified in Schedule 9.6.
9.7 IBM has performed or is performing all material obligations required to
be performed by it under the Acquired Contracts and is not, (with or without
notice, lapse of time or both) in breach or default in any material respect
thereunder.
9.8 To the Knowledge of IBM, no representation petition has been filed with
the National Labor Relations Board and, to the Knowledge of IBM, no union card
signing campaign is in progress at any IBM facility concerning the Affected
Employees. There is not any, and during the past 12 months there has not been
any, labor strike, work stoppage or lockout with respect to the Affected
Employees.
9.9 IBM has provided Triton with an accurate statement of IBM's book value of
the Inventory, Furniture, Fixtures and Equipment that existed on IBM's books,
as of January 31, 2000, of the Inventory, Furniture, Fixtures and Equipment.
9.10 Except for the express representations and warranties made by IBM in
this Section 9, the Deliverables are sold, licensed or otherwise transferred
hereunder "as is" without warranty of any kind, express or implied, including,
but not limited to the implied warranties of merchantability and fitness for a
particular purpose, and IBM shall not have any liability in respect of any
infringement of any intellectual property rights of third parties due to
TRITON's use of the Acquired Contracts, Identified Products, Acquired Software
Assets, Other Acquired Software Assets, Invention Disclosures or the IBM
Technology or operation under the rights and licenses herein granted. Without
limiting the foregoing, IBM makes no representations or warranties concerning
the ability of the IBM Licensed Software, IBM Workstation Software, Acquired
Software Assets, Other Acquired Software Assets, or Third Party Workstation
Software to process, provide or represent date data in and between the
twentieth and twenty-first centuries.
9.15 IBM has good and marketable title to the Acquired Assets, free and clear
of all Security Interests or restriction on transfer.
9.16 To the Knowledge of IBM, IBM and its Subsidiaries have complied with all
applicable laws in connection with the Acquired Assets.
9.17 IBM has delivered to TRITON a correct and complete copy of each written
agreement, including any amendments, modifications or extensions, listed in
Schedule 1B and Schedule 1M. With respect to each such agreement, to the
Knowledge of IBM: (a) the agreement is legal, valid, binding, enforceable, and
in full force and effect; (b) no party is in breach or default, and no event
has occurred which with notice or lapse of time would constitute a breach or
default, or permit termination, modification, or acceleration, under the
agreement; and (c) no party has repudiated any provision of the agreement.
9.18 To the Knowledge of IBM, each Identified Product has been in conformity
with all applicable contractual commitments and all express and implied
warranties, except as set forth in
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Schedule 9.18, there are no pending or, to the Knowledge of IBM, threatened
claims for the breach of any express or implied warranty made with respect to
the Identified Products.
9.19 IBM has provided to TRITON the names and location of employment of all
employees employed in connection with the Identified Products as of the date of
this Agreement (the "Affected Employees"), including all Affected Employees on
leave for any reason, and their current annual compensation, including variable
elements such as long term incentive plans, stock option (including vesting
schedules and exercise prices); date of birth; sex; date of employment;
positions and rate of vacation accrual as of the date of this Agreement; and
accrued vacation as of the payroll date immediately preceding the date of this
Agreement.
9.20 IBM does not have any Employee Benefit Plan as that term is defined in
the Employee Retirement Income Security Act of 1974, that will result in any
liability to TRITON for such Employee Benefit Plan.
9.21 To the Knowledge of IBM, IBM is not a party to or bound by any
collective bargaining agreement, nor has any of them experienced any strikes,
grievances, claims of unfair labor practices, or other collective bargaining
disputes relating to the Affected Employees. To the Knowledge of IBM, there is
no organizational effort presently being made by or on behalf of any labor
union with respect to the Affected Employees.
9.22 The tangible assets included within the Acquired Assets have been
maintained in accordance with IBM's normal maintenance procedures and, as a
whole, are substantially in good working order and condition, subject to normal
wear and tear. The Teradyne Catalyst tester identified in Schedule 1A is in
good working order and condition, subject to normal wear and tear, and has been
maintained in accordance with the manufacturer's warranty requirements.
9.23 The intellectual property rights included within the Deliverables and
the licenses set forth in this Agreement and the EDA Program Agreement include
all intellectual property rights owned by IBM that would be infringed by the
design, manufacture, use or sale of the Identified Products as they exist on
the Effective Date other than integrated circuit manufacturing processes.
9.24 Binding Obligation. The Investors Rights Agreement, when executed and
delivered by IBM, will constitute a valid and legally binding obligation of
IBM, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium, or other laws of general
application relating to or affecting enforcement of creditors' rights and to
the availability of the remedy of specific performance.
9.25 Investment Intent. IBM is acquiring the Shares and the Common Stock
issuable on conversion of the Shares (the "Conversion Shares") for investment
for its own account, not as a nominee or agent, and not with the view to, or
for resale in connection with, any distribution thereof. IBM understands that
the Shares and the Conversion Shares have not been, and will not be, registered
under the Act by reason of a specific exemption from the registration
provisions of
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the Securities Act of 1933, the availability of which depends upon, among other
things, the bona fide nature of the investment intent and the accuracy of the
IBM's representations.
9.26 Discussion. IBM has had an opportunity to discuss TRITON's business,
management and financial affairs with TRITON's management and has also had an
opportunity to ask questions of TRITON's officers, which questions were
answered to IBM's satisfaction.
9.27 Assets. To the Knowledge of IBM, the Acquired Assets transferred under
this Agreement include all of the material tangible assets that IBM currently
uses to carry on the operations acquired from IBM under this Agreement, other
than foundry and other services covered in separate agreements.
9.28 To the Knowledge of IBM, the software being transferred or licensed to
Triton includes the material software that IBM currently uses directly in the
development and manufacturing of the Identified Products, other than the
Unassigned Third Party Software.
9.29 To the Knowledge of IBM, the Comquest Confidential Information and
Invention Assignment Agreement or the IBM Agreement Regarding Confidential
Information, Intellectual Property, and Other Matters has been signed by all
IBM employees who developed IBM's intellectual property in the Invention
Disclosures, Acquired Software Assets, Other Acquired Software Assets, Board
Design, Deliverable Documentation, and the Masks, and IBM has provided copies
of such agreements for Triton's review.
9.30 Schedule 1H includes an accurate list of the inventory owned by IBM and
used in the operations being acquired by TRITON, as of January 31, 2000. Since
January 31, 2000, items have been added to and withdrawn from Inventory only in
the ordinary course of business.
SECTION 10 Reserved
SECTION 11 REPRESENTATIONS AND WARRANTIES OF TRITON
11.1 Organization and Standing; Certificate and Bylaws. TRITON is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware. TRITON has all requisite corporate power and
authority to own and operate its properties and assets and to carry on its
business as presently conducted and as proposed to be conducted. TRITON is
qualified to do business and is in good standing as a foreign corporation in
every jurisdiction in which the failure to be so qualified would have a
material adverse effect on TRITON's business as now conducted or as proposed to
be conducted.
11.2 Corporate Power; Conflict. TRITON has all requisite legal and corporate
power to execute and deliver this Agreement and the Investors Rights Agreement,
to sell and issue the Shares hereunder, to issue the Common Stock and other
securities issuable upon conversion of the Shares, and to carry out and perform
its obligations under the terms of this Agreement and
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the Investors Rights Agreement. The execution and delivery by TRITON of this
Agreement does not, and the performance by TRITON of its obligations hereunder
will not: (i) conflict with, or result in a breach of, any of the provisions of
its Amended and Restated Certificate of Incorporation or By-laws; (ii) breach,
violate or contravene any Governmental Rule, or create any right of termination
or acceleration or encumbrance, that, singly or in the aggregate, would have a
material adverse effect on its authority or ability to perform its obligations
under this Agreement; or (iii) conflict in any respect with, or result in a
breach of or default under, any contract, license, franchise, permit or any
other agreement or instrument to which it is a party or by which it or any of
its properties may be affected or bound that, singly or in the aggregate, would
have a material adverse effect on its authority or ability to perform its
obligations under this Agreement
11.3 Capitalization. As of February 28, 2000, the authorized capital stock of
TRITON consists of 66,500,000 shares of Common Stock and 43,205,000 shares of
Preferred Stock, 14,400,000 which are designated as Series A Preferred Stock,
13,200,000 of which are designated Series B Preferred Stock and 15,605,000 of
which are designated Series C Preferred Stock. Triton is currently soliciting a
consent from its' shareholders approving the increase in Triton's authorized
shares of Common and Preferred Stock by 53,500,000 and 10,000,000 shares,
respectively. Triton's audited financial statements for the year ended December
31, 1999 accurately state Triton's capitalization, including shares, options
and warrants, as of December 31, 1999.
11.4 Subsidiaries. Other than a wholly-owned subsidiary incorporated in
Nevada, TRITON has no subsidiaries or affiliated companies and does not
otherwise own or control, directly or indirectly, any equity interest in any
corporation, association or business entity. TRITON is not a participant in any
joint venture, partnership or similar arrangement.
11.5 Authorization. All corporate action on the part of TRITON, its officers,
directors and stockholders necessary for the authorization, execution, delivery
and performance by TRITON of this Agreement and the Investors Rights Agreement,
the authorization, issuance, sale and delivery of the Shares and the Common
Stock issuable on conversion of the Shares , and the performance of all of
TRITON's obligations under this Agreement and the Investors Rights Agreement
has been taken or will be taken prior to the Closing. This Agreement and the
Investors Rights Agreement, when executed and delivered by TRITON, shall
constitute valid and legally binding obligations of TRITON enforceable in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, or other laws of general application
relating to or affecting enforcement of creditors' rights and to the
availability of the remedy of specific performance. The Shares, when issued in
compliance with the provisions of this Agreement, and the Common Stock issuable
on conversion of the Shares will be validly issued, fully paid and
nonassessable, and will have the rights, preferences and privileges described
in the Restated Certificate; and the Shares and the Conversion Stock will be
free of any restrictions on transfer, liens or encumbrances, other than any
liens or encumbrances created by or imposed upon the holders; provided,
however, that the Shares and the Conversion Stock may be subject to
restrictions on transfer under applicable securities laws as set forth
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herein. The Shares are not subject to any preemptive rights or rights of first
refusal that have not been duly waived.
11.7 Title to Properties and Assets. TRITON owns its properties and assets,
and has good title to all its leasehold interests, in each case subject to no
mortgage, pledge, lien, lease (or sublease), loan, encumbrance or charge,
except (i) the lien of current taxes not yet due and payable, and (ii) possible
minor liens and encumbrances which do not in any case or in the aggregate
materially detract from the value of the property subject thereto or materially
impair TRITON's operations, and which have not arisen otherwise than in the
ordinary course of business. Substantially all of TRITON's fixed assets are
subject to equipment lease arrangements. With respect to property it leases,
TRITON is in compliance with such leases, and, holds a valid leasehold
interest, free of any liens, claims or encumbrances, subject to (i) and (ii)
above.
11.8 Patents, Trademarks. To the knowledge of TRITON, TRITON owns or
possesses all legal right, title to, and ownership of all patents, patent
applications, licenses, trademarks, service marks, trade names, inventions,
franchises, copyrights, trade secrets, information and other proprietary rights
necessary for the operation of its business as now conducted and that, after
reasonable investigation, it believes are necessary for the operation of its
business as proposed to be conducted. Triton's business, as currently
conducted, does not infringe or conflict with the non-patent rights of others
and, to Triton's knowledge, there is no infringement or conflict with the
patent rights of others. TRITON has not violated, or by conducting its business
as proposed, would not violate any of the trademarks, service marks, trade
names, copyrights, trade secrets or other proprietary rights or processes of
any other person or entity. TRITON has disclosed, as an exception to the
representations in this paragraph and paragraph 11.10, the existing dispute
over trademark rights to the TRITON trademark.
11.9 Compliance with Other Instruments, None Burdensome. TRITON is not in
violation or default of any term of (i) its Certificate of Incorporation or
Bylaws, (ii) in any material respect of any material contract, agreement,
mortgage, indebtedness, indenture or instrument of TRITON or (iii) any
judgment, decree, order or, to the best of TRITON's knowledge, after reasonable
investigation, any statute, rule or regulation applicable to TRITON.
11.10 Litigation. There is no action, suit, proceeding or investigation
pending or currently threatened against TRITON that questions the validity of
this Agreement or the Investors Rights Agreement or the right of TRITON to
enter into such agreements, or to consummate the transactions contemplated
hereby or thereby, or that might result, either individually or in the
aggregate, in any material adverse change in the assets, business, properties,
prospects, or financial condition of TRITON, or in any change in the current
equity ownership of TRITON. The foregoing includes, without limitation, any
action, suit, proceeding, or investigation pending or currently threatened
involving the prior employment any of TRITON's employees, their use in
connection with TRITON's business of any information or techniques allegedly
proprietary to any of their former employees, their obligations under any
agreements with prior employers, or negotiations by TRITON with potential
backers of, or investors in, TRITON or its proposed business. TRITON is not a
party to or named in or subject to any order, writ, injunction, judgment, or
decree of any court, government agency, or instrumentality. There is no action,
suit,
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proceeding or investigation by TRITON currently pending or that TRITON
currently intends to initiate.
11.11 Tax Returns. As of the date hereof, TRITON has accurately and timely
filed or obtained extensions for all federal, state and other tax returns and
reports (federal, state and local) which are required to be filed and has paid
all taxes and assessments which have become due and payable in connection
therewith. These returns and reports are true and correct in all material
respects. None of its returns, federal, state or other, have been or are being
audited as of the date thereof. TRITON has never had any tax deficiency
proposed or assessed against it and has not executed any waiver of any statute
of limitations on the assessment or collection of any tax or governmental
charge. Since the date of the Financial Statements (as defined below), TRITON
has made adequate provisions on its books of account for all taxes,
assessments, and governmental charges with respect to its business, properties,
and operations for such period. TRITON has withheld or collected from each
payment made to each of its employees, the amount of all taxes, including but
not limited to, federal income taxes, Federal Insurance Contribution Act taxes
and Federal Unemployment Tax Act taxes required to be withheld or collected
therefrom, and has paid the same to the proper tax receiving officers or
authorized depositories.
11.12 Employees. TRITON has no collective bargaining agreements with any of
its employees and there is no labor union organizing activity pending or
threatened with respect to TRITON. None of TRITON's employees belongs to any
union or collective bargaining unit. Triton does have an incentive compensation
plan for officers and certain other key employees, and has a sales commission
plan for sales personnel. Triton has an employee 401(k) plan. TRITON has
complied with all applicable state and federal equal opportunity and, to the
best of TRITON's knowledge, other laws related to employment. To TRITON's
knowledge, no employee of TRITON is or will be in violation of any judgment,
decree, or order, or any term of any employment contract, patent disclosure
agreement or other contract or agreement relating to the relationship of any
such employee with TRITON or any other party because of the nature of the
business conducted or to be conducted by TRITON or to the use by the employee
of his best efforts with respect to such business. TRITON is not aware that any
officer or key employee, or that any group of key employees, intends to
terminate their employment with TRITON. Triton's Vice President of Operations
has resigned and will be leaving Triton in the near future. Subject to general
principles related to wrongful termination of employees, the employment of each
officer and employee of TRITON is terminable at the will of TRITON. All
employees and consultants of TRITON have entered into a standard employee
proprietary information agreement with TRITON, and TRITON is not aware that any
of such employees is in violation thereof.
11.13 Employee Benefit Plans. TRITON does not have any Employee Benefit Plan
as defined in the Employee Retirement Income Security Act of 1974.
11.14 Securities Law Exemption. Subject to the accuracy of IBM's
representations in this Agreement, the offer, sale and issuance of the Shares
and the issuance of the Conversion Stock constitute transactions exempt from
registration under the Securities Act of 1933, as amended
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(the "Act"), and have been registered or qualified (or are exempt from
registration and qualification) under the registration, permit or qualification
requirements of all applicable state securities laws and neither TRITON nor any
authorized agent acting on its behalf will take any action hereafter that would
cause the loss of such exemption.
11.15 Brokers or Finders. TRITON has not incurred, and will not incur, directly
or indirectly, as a result of any action taken by or on behalf of TRITON, any
liability for brokerage or finders' fees or agents' commissions or any similar
charges in connection with this Agreement or the Investors Rights Agreement or
the transactions contemplated herein or therein.
11.16 Disclosure. To TRITON's knowledge, there are no facts which (individually
or in the aggregate) materially adversely affect the business, assets,
liabilities, financial condition, prospects or operations of TRITON that have
not been set forth in this Agreement, the Exhibits hereto or the Investors
Rights Agreement or in the other documents delivered to IBM or its attorneys or
agents in connection herewith.
11.17 Financial Statements. TRITON has delivered to IBM its audited financial
statements as of December 31, 1999 and the twelve months then ended (the
"Financial Statements"). The Financial Statements have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis throughout the periods indicated and with each other The
Financial Statements fairly present the financial condition and operating
results of TRITON as of the dates, and for the periods, indicated therein.
11.18 Permits. TRITON has all franchises, permits, licenses, and any similar
authority necessary for the conduct of its business as now being conducted by
it, and TRITON believes it can obtain, without undue burden or expense, any
similar authority for the conduct of its business as planned to be conducted.
TRITON is not in default under any such franchises, permits, licenses or other
similar authority.
11.19 Environmental Compliance. TRITON's business as currently conducted and as
proposed to be conducted does not violate, and will not result in any violation
of, any applicable statute, law, or regulation relating to the environment or
occupational health and safety. To its knowledge, no material expenditures are
or will be required in order to comply with such existing statute, law or
regulation.
11.20 Insurance. TRITON has in full force and effect fire and casualty
insurance policies, with extended coverage, sufficient in amount (subject to
reasonable deductibles) to allow it to replace any of its properties that might
be damaged or destroyed.
11.21 Changes. Since December 31, 1999, there has not been any event or
condition of any type that has had or is expected to have a material adverse
effect on the business, properties, prospects, or financial conditions of
TRITON.
11.22 Other than compliance with the HSR Act pre-notification requirements, no
material consent, approval or authorization of, or designation, declaration or
filing with, any
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Governmental Authority on the part of TRITON is required in connection with the
execution or delivery by TRITON of this Agreement or the consummation by TRITON
of the transactions contemplated herein.
11.23 Triton represents and warrants that it is not engaged in any discussions
regarding a possible private equity financing (including convertible debt) or
acquisition or other issuance of its equity, other than the issuance of stock
options to employees in the ordinary course of business and other than the
possibility of a potential initial public stock offering. Except for the
acquisition of assets from IBM and as stated above, Triton has no current plans
to issue more of its equity prior to the Closing of this transaction. If,
however, circumstances change and, prior to the Effective Date of this
Agreement, Triton does enter into an agreement providing for an equity
financing or an acquisition in which Triton issues shares of its common stock
or securities exercisable for or convertible into common stock, or otherwise
issues such securities, and if the purchase price of such securities is less
than $12 (twelve dollars) per common stock equivalent, then Triton will, at the
Closing, issue without additional consideration from IBM an additional number
of shares to IBM equal to approximately 8.8% of the "Dilutive Shares" issued or
issuable in such event (excluding stock options to employees in the ordinary
course of business). For this purpose, "Dilutive Shares" will equal the amount
by which the total number of common stock equivalents issued or issuable in
such events exceed a number equal to the total consideration paid or payable
for such shares by the receiving parties to such events, divided by $12 (twelve
dollars); if no consideration is paid or payable then all of such common stock
equivalents will be considered to be "Dilutive Shares". In the event of a stock
split or a reverse stock split of Triton's Series C preferred stock prior to
Closing, there will be a proportional adjustment in the number of shares issued
to IBM.
SECTION 12 RESTRICTIONS ON TRANSFERABILITY OF SHARES
12.1 Restrictions on Transferability. The Shares and the Conversion Shares
shall not be sold, assigned, transferred or pledged except upon the conditions
specified in this Section 12, which conditions are intended to ensure
compliance with the provisions of the Securities Act of 1933.
12.2 Restrictive Legend. Each certificate representing (i) the Shares, (ii) the
Conversion Shares and (iii) any other securities issued in respect of the
Shares or the Conversion Shares upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event (hereinafter
collectively referred to as the "Restricted Securities"), shall (unless
otherwise permitted by the provisions of Section 12.3 below) be stamped or
otherwise imprinted with a legend in the following form (in addition to any
legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR QUALIFIED
UNDER THE LAWS OF ANY STATE. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR SUCH
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QUALIFICATION UNLESS THE TRANSFER IS IN ACCORDANCE WITH RULE 144 OR SIMILAR
RULE OR UNLESS TRITON RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO
IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT AND ANY APPLICABLE STATE
SECURITIES LAWS. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE SHARES
AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST
MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE
CORPORATION AT THE PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION.
IBM and each subsequent transferee (hereinafter collectively referred to as a
"Holder") consents to TRITON making a notation on its records and giving
instructions to any transfer agent of the Shares or the Conversion Shares in
order to implement the restrictions on transfer established in this Section 12.
12.3 Notice of Proposed Transfers. Each Holder of a certificate representing
Restricted Securities by acceptance thereof agrees to comply in all respects
with the provisions of this Section 12.3. Prior to any proposed sale,
assignment, transfer or pledge of any Restricted Securities (other than (i) a
transfer not involving a change in beneficial ownership, (ii) in transactions
involving the distribution without consideration of Restricted Securities by a
Holder to any of its partners, or retired partners, or to the estate of any of
its partners or retired partners, (iii) a transfer to an affiliated fund,
partnership or TRITON, subject to compliance with applicable securities laws or
(iv) transfers in compliance with Rule 144, so long as TRITON is furnished with
reasonably satisfactory evidence of compliance with such Rule), unless there is
in effect a registration statement under the Act covering the proposed
transfer, the Holder thereof shall give written notice to TRITON of such
Holder's intention to effect such transfer, sale, assignment or pledge. Each
such notice shall describe the manner and circumstances of the proposed
transfer, sale, assignment or pledge in sufficient detail, and shall be
accompanied, at the reasonable request of TRITON at such Holder's expense by
either (i) an opinion of counsel (who shall, and whose opinion shall be,
addressed to TRITON and reasonably satisfactory to TRITON) to the effect that
the proposed transfer of the Restricted Securities may be effected without
registration under the Act or (ii) a "no action" letter from the Securities and
Exchange Commission to the effect that the transfer of such securities without
registration will not result in a recommendation by the staff of the Commission
that action be taken with respect thereto, whereupon the Holder of such
Restricted Securities shall be entitled to transfer such Restricted Securities
in accordance with the terms of the notice delivered by such Holder to TRITON.
Each certificate evidencing the Restricted Securities transferred as above
provided shall bear, except if such transfer is made pursuant to Rule 144, the
appropriate restrictive legend set forth in Section 12.2 above, except that
such certificate shall not bear such restrictive legend if in the opinion of
counsel for such Holder and in the opinion of counsel for TRITON such legend is
not required in order to establish compliance with any provision of the Act.
12.4 Removal of Restrictions on Transfer of Securities. Any legend referred to
in Section 12.2 hereof stamped on a certificate evidencing (i) the Shares, (ii)
the Conversion Shares or (iii) any other securities issued in respect of the
Shares or the Conversion Shares upon any stock split,
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stock dividend, recapitalization, merger, consolidation or similar event and
the stock transfer instructions and record notations with respect to such
security shall be removed and TRITON shall issue a certificate without such
legend to the Holder of such security if such security is registered under the
Act, or if such Holder provides TRITON with an opinion of counsel (which may be
counsel for TRITON) reasonably satisfactory to TRITON to the effect that a
public sale or transfer of such security may be made without registration under
the Act or such Holder provides TRITON with reasonable assurances, which may,
at the option of TRITON, include an opinion of counsel (which may be counsel
for TRITON) reasonably satisfactory to TRITON, that such security can be sold
pursuant to Rule 144(k) (or any successor provision) under the Act.
SECTION 13 CONSENTS AND SUBROGATED WORK
TRITON and IBM shall use reasonable efforts to obtain, between the date of
signing of this Agreement and the Effective Date, all requisite consents to
assignments of all of the Assumed Liabilities. For any Assumed Liabilities for
which IBM has any secondary liability to third parties, TRITON shall provide
IBM reasonable access and information in order for IBM to ascertain continuing
compliance by TRITON with all such contract terms and conditions. If any such
required consents cannot be secured without the incurring of any significant
additional costs, where additional action is deemed necessary by either Party,
the Parties agree to enter into such other arrangements with respect to the
underlying rights and obligations as shall permit TRITON to perform the
obligations of IBM thereunder, as a subcontractor or otherwise, and TRITON to
obtain the benefit thereof (the "Subrogated Work"); and until the requisite
consents are obtained, such obligations will not be deemed to be included in
the Assumed Liabilities and nothing contained herein will be deemed to create
an obligation or relationship that would constitute a breach of the contract
underlying such rights and obligations. TRITON agrees to diligently perform and
discharge the obligations of IBM in connection with the Subrogated Work
directly, or indirectly through IBM, as applicable; and to the extent that
consents to assignment are obtained after the Effective Date, the Parties agree
that such obligations will no longer be considered to be Subrogated Work at
such time, but will instead be deemed to be Assumed Liabilities for all
purposes of this Agreement.
SECTION 14. CONDITIONS TO EFFECTIVENESS OF SALE AND LICENSES; POST CLOSING
COVENANTS
14.1 The respective obligation of each Party to consummate the transactions
contemplated hereby shall be subject to the fulfillment on or prior to the
Effective Date of the following conditions:
(a) all applicable HSR Act waiting periods shall have expired or been
terminated or appropriate approval granted;
(b) all other consents or approvals, orders, licenses, permits and
authorizations of, and registrations, declarations and filings with, any
Governmental Authority, if any, that are required
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by applicable law to be obtained by the parties prior to consummation of the
transactions contemplated hereby shall have been obtained and be in full force
and effect; and
(c) neither of the parties hereto shall be subject to any order or
injunction of a Governmental Authority which prohibits the consummation of the
transactions contemplated by this Agreement.
14.2 The obligations of IBM to consummate the transactions contemplated hereby
shall be subject to the fulfillment on or prior to the Effective Date of the
following additional conditions:
(a) the payment by TRITON of the consideration referred to in Section
4.1;
(b) TRITON shall have performed in all material respects its agreements
and covenants contained in this Agreement required to be performed on or prior
to the Effective Date; and
(c) the representations and warranties of TRITON contained in this
Agreement shall be true and correct in all material respects as of the date
made and (unless made as of specified date) as of the Effective Date.
(d) the consents set forth on Schedule 14.3(c) shall have been
obtained;
14.3 The obligations of TRITON to consummate the transactions contemplated
hereby shall be subject to the fulfillment on or prior to the Effective Date of
the following additional conditions:
(a) IBM shall have performed in all material respects its agreements
and covenants contained in this Agreement required to be performed on or prior
to the Effective Date;
(b) the representations and warranties of IBM contained in this
Agreement shall be true and correct in all material respects as of the date
made and (unless made as of specified date) as of the Effective Date; and
(c) the consents set forth on Schedule 14.3(c) shall have been
obtained;
14.4 The required number of the Identified Employees, as set forth on Schedule
1D, shall have continued to be IBM employees and shall have accepted Triton's
offer of employment made pursuant to Section 7, and eighty percent (80%) of the
Affected Employees shall have continued to be IBM employees and shall have
accepted Triton's offer of employment made pursuant to Section 7.
14.5 During the period between signing of the Agreement and the Effective
Date, (i) IBM will not, and will not cause or permit any director or officer
to, engage in any practice, take any action, or enter into any transaction with
respect to the Acquired Assets that is outside the Ordinary Course of Business,
(ii) IBM will make commercially reasonable efforts to preserve intact the base
of Affected Employees and the Acquired Assets, and (iii) IBM will continue
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performing the Acquired Contracts and, including the building of products and
the replenishing of inventory in the ordinary course of business for such
Acquired Contracts.
14.6 IBM agrees to execute documents, render such assistance, and take such
other actions as TRITON may reasonably request, to assist TRITON to apply for,
register, perfect, confirm and protect TRITON's rights in the intellectual
property rights acquired by TRITON under this Agreement.
14.7 During the period extending for two (2) years from the date of this
Agreement, neither party shall solicit for employment purposes those employees
of the other Party who have been associated with the discussions relating to
this Agreement or the Affected Employees. This Agreement does not in any manner
restrict general solicitations for employment or hiring as a result thereof,
nor the right of any employee of either Party on his or her own initiative or
in response to general solicitations to seek employment from the other Party.
SECTION 15. LIMITATION OF LIABILITY
15.1 IBM shall not be liable for any amounts with respect to the breach of a
representation or warranty hereunder unless and until such amounts shall exceed
in the aggregate one hundred thousand dollars ($100,000) (the "Limitation
Amount") (in which case IBM shall only be liable with respect to the excess
over the Limitation Amount). There shall be no IBM liability with respect to
any such matter for individual amounts of less than seven thousand five hundred
dollars ($7,500) and such amounts shall not be taken into account in
determining whether the Limitation Amount has been exceeded. In no event shall
IBM's liability with respect to the breach of representations, warranties and
covenants hereunder exceed ten million ($10,000,000) dollars in the aggregate.
Neither IBM nor TRITON shall be responsible for any indirect, incidental,
punitive, special or consequential damages whatsoever, including loss of
profits or goodwill, even if advised of the possibility of such damages.
Notwithstanding the foregoing, nothing shall limit IBM's liability for breaches
of Section 5 hereof.
15.2 Indemnification. (a) IBM shall indemnify and hold TRITON harmless from and
against all losses, liabilities, claims and damages (including reasonable
attorney's fees) (collectively "Damages") resulting from the ownership or
conduct prior to the Closing of the Acquired Assets or the operations being
acquired by Triton, including warranty obligations for products shipped prior
to the Closing, but excluding the Assumed Liabilities.
(b) Triton shall indemnify and hold IBM harmless from and against all
Damages resulting from (i) the ownership or conduct after the Closing of the
Acquired Assets or the operations being acquired by Triton or (ii) the Assumed
Liabilities.
(c) In the event of a third party claim, the party seeking
indemnification under this Section (the "Indemnitee") shall give prompt written
notice to the party from whom indemnification is sought (the "Indemnitor") but
no later than thirty days after service of process in the event of litigation
or sixty days after written assertion of a claim is received by the Indemnitee.
The Indemnitor shall (with, if necessary, reservation of rights) defend such
action or proceeding at its
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own expense with counsel of its choosing. The Indemnitor shall keep the
Indemnitee fully appraised at all times of the status of the defense, shall
consult with the Indemnitee prior to settlement of any indemnified matter, and
shall not, without the Indemnitee's consent, which shall not be unreasonably
withheld, enter any settlement of the indemnified matter that does not include
a full release of the Indemnitee.
SECTION 16. COMMUNICATIONS
16.1 Notices and other communications shall be sent by receipted facsimile or
by registered or certified mail to the following addresses and shall be
effective (i) on the third day after mailing, by United States mail, first
class, postage prepaid, by certified or registered mail, return receipt
requested, addressed in each case as follows (or to such other address as may
be specified by like notice) or (ii) if and when received by facsimile at the
phone number listed below (or to such other phone number as may be specified by
like notice):
For IBM: For TRITON:
Director of Licensing Senior VP and CFO
IBM Corporation Triton Network Systems, Inc.
North Castle Drive ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
16.2 All correspondence shall reference the Agreement Reference No. set forth
above.
SECTION 17. GENERAL PROVISIONS
17.1 All representations, warranties or covenants made by the Parties in this
Agreement or in any schedule, document, certificate or other instrument
delivered by or on behalf of the Parties pursuant to this Agreement shall
survive for a period of twelve (12) months following the Effective Date, other
than Section 9.6, which shall survive for a period of twenty four months (24),
and other than Section 9.23, which shall survive as long as the intellectual
property rights referred in Section 9.23 remain enforceable.
17.2 Neither Party will provide to the other Party any confidential
information of any third party unless authorized by the third party.
17.3 Nothing in this Agreement shall be construed as conferring any right to
use in advertising, publicity or promotional or other external activities any
name, trade name, trademark or other designation of either Party hereto
(including any contraction, abbreviation or simulation of any of the
foregoing).
17.4 TRITON and IBM agree to issue the press release attached as Schedule
17.4 as soon as practicable after execution of the this Agreement announcing
this transaction. No other public announcement, press releases or similar
publicity or advertising of any nature relating to this
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Agreement or the transactions hereunder shall be issued by either Party without
the prior written consent of both Parties, except as required by law such as
any filings required by the Securities and Exchange Commission, provided that
the other Party is provided with prior notice of and a right to object to the
content of such public announcement, press release or similar publicity or
advertising.
17.5 Nothing in this Agreement shall be construed to limit the right of
either Party, alone or with others, to design, develop, make, procure, market,
maintain or otherwise deal in products or services, now or in the future, which
may constitute competitive alternatives to the technology and products
contemplated by this Agreement.
17.6 Each Party is an independent contractor. Neither Party is, nor shall
claim to be, a legal representative, partner, franchisee, joint venturer, agent
or employee of the other. Neither Party will assume or create obligations for
the other. Each Party is responsible for the direction and compensation of its
employees.
17.7 This Agreement shall in all respects be governed by and construed
exclusively in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such State without regard
to any conflict of laws principles of such State. The United Nations'
Convention on International Sale of Goods shall not apply to this Agreement.
17.8 Each Party waives, to the fullest extent permitted by applicable law,
any right it may have to a trial by jury in respect of any action, suit or
proceeding arising out of or relating to this Agreement.
17.9 Each Party hereby irrevocably and unconditionally, in any action, suit,
or proceeding:
(a) submits, for itself and its property, to the exclusive jurisdiction
of any Delaware State court sitting in the State of Delaware or any
federal court of the United States of America sitting in the State of
Delaware and any appellate court from any such court, in any suit,
action or proceeding arising out of or relating to this Agreement, or
for recognition or enforcement of any judgment, and each Party hereby
irrevocably and unconditionally agrees that all claims in respect of any
such suit, action or proceeding may be heard and determined in such
Delaware State court or, to the extent permitted by law, in such federal
court.
(b) waives, to the fullest extent it may legally and effectively do so,
any objection which it may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to this
Agreement in any Delaware court sitting in the State of Delaware or any
federal court sitting in the State of Delaware.
(c) waives, to the fullest extent permitted by law, the defense of any
inconvenient forum to the maintenance of such suit, action or proceeding
in any such court and further waives
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the right to object, with respect to such suit, action or proceeding,
that such court does not have jurisdiction over such Party.
(d) consents to service of process in the manner provided for the giving
of notices pursuant to this Agreement. Nothing in this Agreement shall
affect the right of any Party to this Agreement to serve process in any
other manner permitted by law.
17.10 Neither Party will bring a legal action relating to the subject matter
of this Agreement more than two (2) years after the cause of action
arose.
17.11 Any failure or delay on the part of either Party in the exercise of any
right or privilege hereunder shall not operate as a waiver thereof, nor
shall any single or partial exercise of any such right or privilege
preclude other or further exercise thereof or of any other right or
privilege. All waivers and consents, if any, given hereunder shall be in
writing.
17.12 Except as expressly provided herein, neither Party shall assign this
Agreement nor any of its rights, interests, privileges, licenses or
obligations hereunder without the other Party's prior written
permission. TRITON may assign this Agreement to a successor in interest
to its Broadband Products modem business subject to the limitations set
forth in Section 8.10. Any act in derogation of the foregoing shall be
null and void.
17.13 The headings of Sections in this Agreement are inserted for convenience
of reference only and are not intended to be a part of, or to affect the
meaning or interpretation of, this Agreement.
17.14 In the event that any provision of this Agreement is found to be
invalid, voidable or unenforceable by any court of law with competent
jurisdiction, the Parties agree that unless it materially affects the
entire intent and purpose of this Agreement, such invalidity,
voidability or unenforceability shall not affect either the validity of
this Agreement or the remaining provisions herein, and the provision in
question shall be deemed to be replaced with a valid and enforceable
provision most closely reflecting the intent and purpose of the original
provision.
17.15 This Agreement shall not be binding upon the Parties until it has been
signed hereinbelow by an authorized representative of each Party, in
which event it shall be effective according to its terms. No amendment
or modification of this Agreement shall be valid or binding upon the
Parties unless made in writing and signed by an authorized
representative of each Party.
17.16 Each Party shall, at its own expense, comply with any Governmental Rule
relating to its duties, obligations and performance under this Agreement
and shall procure all licenses and pay all fees and other charges
required thereby. Each Party agrees to comply with all applicable
federal, state and local laws, regulations and ordinances, including the
Regulations of the U.S. Department of Commerce or the U.S. State
Department in respect of the export of technical data and commodities.
TRITON hereby gives written assurance that, unless authorized by
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appropriate U.S. Government license or regulations, neither software nor
technical data provided by IBM under this Agreement, nor the direct
product thereof, shall be exported, directly or indirectly, to
prohibited countries or nationals thereof. TRITON agrees that it is
responsible for obtaining required government documents and approvals
prior to export of any commodity, machine, software or technical data.
17.17 TRITON and IBM hereby waive compliance with any applicable bulk sales or
similar laws in the United States or other jurisdictions.
17.18 As promptly as practicable after the execution of this Agreement, each
party shall, in cooperation with the other, file any reports or
notifications that may be required to be filed by it regarding this
transaction under applicable law. IBM and TRITON will cooperate to
obtain any consents or approvals or assist in any filings required in
connection with the transactions contemplated hereby and that have not
been previously obtained or made.
17.19 This Agreement may be signed in one or more counterparts, each of which
will be considered an original, but all of which together form one and
the same instrument. Once signed, both Parties agree any reproduction of
this Agreement made by reliable means (for example, photocopy or
facsimile) shall be considered an original unless prohibited by law.
17.20 Neither Party relies on any promises, inducements or representations
made by the other or expectations of more business dealings in addition
to this transaction. This Agreement accurately expresses the business
agreement of the Parties.
17.21 TRITON and IBM shall pay their own respective expenses, including the
fees and disbursements of their respective counsel in connection with
the negotiation, preparation and execution of this Agreement and the
consummation of the transactions contemplated herein.
This Agreement, including its Schedules and Exhibits, embodies the
entire understanding of the Parties with respect to the subject matter
hereof and merges all prior oral or written understandings, discussions
or communications between them.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their respective authorized representatives.
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ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
INTERNATIONAL BUSINESS MACHINES TRITON NETWORK SYSTEMS, INC.
CORPORATION
BY: BY:
------------------------------- --------------------------
NAME: NAME:
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TITLE: TITLE:
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