1
EXHIBIT 2.1
MASTER SEPARATION AGREEMENT
BETWEEN
MRV COMMUNICATIONS, INC.
AND
OPTICAL ACCESS, INC.
EFFECTIVE AS OF
SEPTEMBER 29, 2000
2
TABLE OF CONTENTS
PAGE
----
ARTICLE I...................................................................................2
SEPARATION..............................................................................2
1.1 Separation Date...............................................................2
1.2 Closing of Transactions.......................................................2
1.3 Exchange of Secretary's Certificates..........................................2
ARTICLE II..................................................................................2
DOCUMENTS AND ITEMS TO BE DELIVERED ON THE SEPARATION DATE..............................2
2.1 Documents to Be Delivered by MRV..............................................2
2.2 Documents to Be Delivered by Optical Access...................................3
ARTICLE III.................................................................................3
THE IPO AND ACTIONS PENDING THE IPO.....................................................3
3.1 Transactions Prior to the IPO.................................................3
3.2 Cooperation...................................................................4
3.3 Conditions Precedent to Consummation of the IPO...............................4
ARTICLE IV..................................................................................5
COVENANTS AND OTHER MATTERS.............................................................5
4.1 Other Agreements..............................................................5
4.2 Further Instruments...........................................................5
4.3 Additional Transitional Services Agreements...................................5
4.4 Agreement for Exchange of Information.........................................6
4.5 Auditors and Audits; Annual and Quarterly Statements and Accounting...........7
4.6 Consistency with Past Practices...............................................9
4.7 Payment of Expenses...........................................................9
4.8 Foreign Subsidiaries..........................................................9
4.9 Dispute Resolution............................................................9
4.10 Governmental Approvals.......................................................10
4.11 No Representation or Warranty................................................10
3
4.12 Non-Solicitation of Employees................................................11
4.13 Employee Agreements. Definition.............................................11
4.14 Cooperation in Obtaining New Agreements......................................12
4.15 Property Damage to Optical Access Assets Prior to the Separation Date........13
4.16 Affiliate Committee..........................................................13
ARTICLE V..................................................................................13
MISCELLANEOUS..........................................................................13
5.1 LIMITATION OF LIABILITY......................................................13
5.2 Entire Agreement.............................................................13
5.3 Governing Law................................................................13
5.4 Termination..................................................................14
5.5 Notices......................................................................14
5.6 Counterparts.................................................................14
5.7 Binding Effect; Assignment...................................................15
5.8 Severability.................................................................15
5.9 Failure or Indulgence Not Waiver; Remedies Cumulative........................15
5.10 Amendment....................................................................15
5.11 Authority....................................................................15
5.12 Interpretation...............................................................15
5.13 Conflicting Agreements.......................................................16
ARTICLE VI.................................................................................16
DEFINITIONS............................................................................16
6.1 Affiliated Company...........................................................16
6.2 Governmental Approvals.......................................................16
6.3 Governmental Authority.......................................................16
6.4 Information..................................................................16
6.5 IPO Closing Date.............................................................16
6.6 Optical Access Assets........................................................16
6.7 Optical Access Group.........................................................16
6.8 Optical Access' Auditors.....................................................16
6.9 Person.......................................................................17
ii
4
6.10 Subsidiary...................................................................17
6.11 MRV Group....................................................................17
6.12 MRV's Auditors...............................................................17
EXHIBIT A...................................................................................20
CERTIFICATE OF SECRETARY OF MRV........................................................20
EXHIBIT B...................................................................................21
CERTIFICATE OF SECRETARY OF OPTICAL ACCESS.............................................21
EXHIBIT C...................................................................................22
GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT............................................22
EXHIBIT D-1.................................................................................23
MASTER TECHNOLOGY OWNERSHIP AND LICENSE AGREEMENT......................................23
EXHIBIT D-2.................................................................................24
MASTER PATENT OWNERSHIP AND LICENSE AGREEMENT..........................................24
EXHIBIT D-3.................................................................................25
MASTER TRADEMARK OWNERSHIP AND LICENSE AGREEMENT.......................................25
EXHIBIT E...................................................................................26
EMPLOYEE MATTERS AGREEMENT.............................................................26
EXHIBIT F...................................................................................27
TAX SHARING AGREEMENT..................................................................27
EXHIBIT G...................................................................................28
MASTER TRANSITIONAL SERVICES AGREEMENT.................................................28
EXHIBIT H...................................................................................29
REAL ESTATE MATTERS AGREEMENT..........................................................29
EXHIBIT I...................................................................................30
MASTER CONFIDENTIAL DISCLOSURE AGREEMENT...............................................30
EXHIBIT J...................................................................................31
iii
5
INDEMNIFICATION AND INSURANCE MATTERS AGREEMENT........................................31
iv
6
MASTER SEPARATION AGREEMENT
This Master Separation Agreement (this "Agreement") is entered into as
of September 29, 2000, between MRV Communications, Inc., ("MRV") a Delaware
corporation, and Optical Access, Inc. ("Optical Access"), a Delaware
corporation. Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to such terms in Article VI hereof.
RECITALS
WHEREAS, MRV currently owns all of the issued and outstanding common
stock of Optical Access;
WHEREAS, Optical Access is engaged in the design, manufacture and
marketing of optical wireless communications systems, as described in the IPO
Registration Statement (the "Optical Access Business");
WHEREAS, the Boards of Directors of MRV and Optical Access have each
determined that it would be appropriate and desirable for MRV to contribute and
transfer to Optical Access, and for Optical Access to receive and assume,
directly or indirectly, assets and liabilities currently held by MRV and
associated with the Optical Access Business (the "Separation");
WHEREAS, MRV and Optical Access currently contemplate that, following
the contribution and assumption of assets and liabilities, Optical Access will
make an initial public offering ("IPO") of an amount of its common stock
pursuant to a registration statement on Form S-1 pursuant to the Securities Act
of 1933, as amended (the "IPO Registration Statement"), that will reduce MRV's
ownership of Optical Access to not less than 80.1%; and
WHEREAS, the parties intend in this Agreement, including the Exhibits
hereto, to set forth the principal arrangements between them regarding the
separation of the Optical Access Business.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
1
7
ARTICLE I
SEPARATION
1.1 Separation Date. Unless otherwise provided in this Agreement, or in any
agreement to be executed in connection with this Agreement, the effective time
and date of each transfer of property, assumption of liability, license,
undertaking, or agreement in connection with the Separation shall be 12:01 a.m.,
Pacific Time, October 31, 2000 or such other date as may be fixed by the Board
of Directors of MRV (the "Separation Date").
1.2 Closing of Transactions. Unless otherwise provided herein, the closing of
the transactions contemplated in Article II shall occur by the lodging of each
of the executed instruments of transfer, assumptions of liability, undertakings,
agreements, instruments or other documents executed or to be executed with
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP ("K&L"), ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ to be held in escrow for delivery as provided in Section
1.3.
1.3 Exchange of Secretary's Certificates. Upon receipt of a certificate of the
Secretary or an Assistant Secretary of MRV in the form attached to this
Agreement as Exhibit A, K&L shall deliver to Optical Access on behalf of MRV all
of the items required to be delivered by MRV hereunder pursuant to Section 2.1
and each such item shall be deemed to be delivered to Optical Access as of the
Separation Date upon delivery of such certificate. Upon receipt of a certificate
of the Secretary or an Assistant Secretary of Optical Access in the form
attached to this Agreement as Exhibit B, K&L shall deliver to MRV on behalf of
Optical Access all of the items required to be delivered by Optical Access
pursuant to Section 2.2 hereunder and each such item shall be deemed to be
delivered to MRV as of the Separation Date upon receipt of such certificate.
ARTICLE II
DOCUMENTS AND ITEMS TO BE DELIVERED ON THE SEPARATION DATE
2.1 Documents to Be Delivered by MRV. On the Separation Date, MRV will deliver,
or will cause its appropriate Subsidiaries to deliver, to Optical Access all of
the following items and agreements (collectively, together with all agreements
and documents contemplated by such agreements, the "Ancillary Agreements"):
(a) A duly executed General Assignment and Assumption Agreement (the
"Assignment Agreement") substantially in the form attached hereto as Exhibit C;
(b) A duly executed Master Technology Ownership and License Agreement
substantially in the form attached hereto as Exhibit D-1, a duly executed Master
Patent Ownership and License Agreement substantially in the form attached hereto
as Exhibit D-2 and a duly executed Master Trademark Ownership and License
Agreement substantially in the form attached as Exhibit D-3;
(c) A duly executed Employee Matters Agreement substantially in the form
attached hereto as Exhibit E;
2
8
(d) A duly executed Tax Sharing Agreement substantially in the form
attached hereto as Exhibit F;
(e) A duly executed Master Transitional Services Agreement substantially
in the form attached hereto as Exhibit G;
(f) A duly executed Real Estate Matters Agreement substantially in the
form attached hereto as Exhibit H;
(g) A duly executed Master Confidential Disclosure Agreement
substantially in the form attached hereto as Exhibit I;
(h) A duly executed Indemnification and Insurance Matters Agreement
substantially in the form attached hereto as Exhibit J;
(i) Resignations of each person who is an officer or director of MRV or
its Subsidiaries, immediately prior to the Separation Date, and who will be
employees of Optical Access from and after the Separation Date; and
(j) Such other agreements, documents or instruments as the parties may
agree are necessary or desirable in order to achieve the purposes hereof.
2.2 Documents to Be Delivered by Optical Access. As of the Separation Date,
Optical Access will deliver to MRV all of the following:
(a) In each case where Optical Access is a party to any agreement or
instrument referred to in Section 2.1, a duly executed counterpart of such
agreement or instrument; and
(b) Resignations of each person who is an officer or director of Optical
Access, immediately prior to the Separation Date, and who will be an employee of
MRV from and after the Separation Date.
ARTICLE III
THE IPO AND ACTIONS PENDING THE IPO
3.1 Transactions Prior to the IPO. Subject to the conditions specified in
Section 3.3, MRV and Optical Access shall use their reasonable commercial
efforts to consummate the IPO. Such efforts shall include, but not necessarily
be limited to, those specified in this Section 3.1
(a) Registration Statement. Optical Access shall file the IPO
Registration Statement, and such amendments or supplements thereto as may be
necessary in order to cause the same to become and remain effective as required
by law or by the managing underwriters for the IPO (the "Underwriters"),
including, but not limited to, filing such amendments to the IPO Registration
Statement as may be required by the underwriting agreement to be entered into
between Optical Access and the Underwriters (the "Underwriting Agreement"), the
Securities and Exchange Commission (the "Commission") or federal, state or
foreign securities laws. MRV and Optical Access shall also cooperate in
preparing, filing with the Securities and Exchange Commission and causing to
become effective a registration statement registering the common stock of
Optical Access under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and any registration statements or amendments thereof which are
required to reflect the establishment of, or amendments to, any employee benefit
and other plans
3
9
necessary or appropriate in connection with the IPO, the Separation or the other
transactions contemplated by this Agreement.
(b) Underwriting Agreement. Optical Access shall enter into the
Underwriting Agreement, in form and substance reasonably satisfactory to Optical
Access, and shall comply with its obligations thereunder.
(c) Nasdaq Listing. Optical Access shall prepare, file and use
reasonable commercial efforts to seek to make effective, an application for
listing of the common stock of Optical Access issued in the IPO on the Nasdaq
National Market ("Nasdaq"), subject to official notice of issuance.
3.2 Cooperation. Optical Access shall consult with, and cooperate in all
respects with, MRV in connection with the pricing of the common stock of Optical
Access to be offered in the IPO and shall, at MRV's direction, promptly take any
and all actions necessary or desirable to consummate the IPO as contemplated by
the IPO Registration Statement and the Underwriting Agreement.
3.3 Conditions Precedent to Consummation of the IPO. The IPO closing is
currently scheduled to occur on or before December 31, 2000 (the "IPO Closing
Date"). The obligations of the parties to use their reasonable commercial
efforts to consummate the IPO shall be conditioned on the satisfaction of the
following conditions:
(a) Registration Statement. The IPO Registration Statement shall have
been filed and declared effective by the Commission, and there shall be no
stop-order in effect with respect thereto.
(b) Blue Sky. The actions and filings with regard to state securities
and blue sky laws of the United States (and any comparable laws under any
foreign jurisdictions) shall have been taken and, where applicable, have become
effective or been accepted.
(c) Nasdaq Listing. The common stock of Optical Access to be issued in
the IPO shall have been accepted for listing on the Nasdaq, on official notice
of issuance.
(d) Underwriting Agreement. Optical Access shall have entered into the
Underwriting Agreement and all conditions to the obligations of Optical Access
and the Underwriters shall have been satisfied or waived.
(e) Common Stock Ownership. MRV shall be satisfied in its sole
discretion that it will own at least 80.1% of the outstanding common stock of
Optical Access following the IPO.
(f) No Legal Restraints. No order, injunction or decree issued by any
court or agency of competent jurisdiction or other legal restraint or
prohibition preventing the consummation of the Separation or the IPO or any of
the other transactions contemplated by this Agreement shall be in effect.
(g) Separation. The Separation shall have become effective in accordance
with the terms of this Agreement and the Ancillary Agreements.
(h) Other Actions. Such other actions as the parties hereto may, based
upon the advice of counsel, reasonably request to be taken prior to the IPO in
order to assure the successful completion of the IPO shall have been taken.
4
10
(i) No Termination. This Agreement shall not have been terminated.
ARTICLE IV
COVENANTS AND OTHER MATTERS
4.1 Other Agreements. MRV and Optical Access agree to execute or cause to be
executed by the appropriate parties and deliver, as appropriate, such other
agreements, instruments and other documents as may be necessary or desirable in
order to effect the purposes of this Agreement and the Ancillary Agreements.
4.2 Further Instruments. At the request of Optical Access, and without further
consideration, MRV will execute and deliver, and will cause its applicable
Subsidiaries to execute and deliver, to Optical Access and its Subsidiaries such
other instruments of transfer, conveyance, assignment, substitution and
confirmation and take such action as Optical Access may reasonably deem
necessary or desirable in order to more effectively transfer, convey and assign
to Optical Access and its Subsidiaries and confirm Optical Access' and its
Subsidiaries' title to all of the assets, rights and other things of value
contemplated to be transferred to Optical Access and its Subsidiaries pursuant
to this Agreement, the Ancillary Agreements, and any documents referred to
therein, to put Optical Access and its Subsidiaries in actual possession and
operating control thereof and to permit Optical Access and its Subsidiaries to
exercise all rights with respect thereto (including, without limitation, rights
under contracts and other arrangements as to which the consent of any third
party to the transfer thereof shall not have previously been obtained). At the
request of MRV and without further consideration, Optical Access will execute
and deliver, and will cause its applicable Subsidiaries to execute and deliver,
to MRV and its Subsidiaries all instruments, assumptions, novations,
undertakings, substitutions or other documents and take such other action as MRV
may reasonably deem necessary or desirable in order to have Optical Access fully
and unconditionally assume and discharge the liabilities contemplated to be
assumed by Optical Access under this Agreement or any document in connection
herewith and to relieve the MRV Group of any liability or obligation with
respect thereto and evidence the same to third parties. Neither MRV nor Optical
Access shall be obligated, in connection with the foregoing, to expend money
other than reasonable out-of-pocket expenses, attorneys' fees and recording or
similar fees. Furthermore, each party, at the request of the other party hereto,
shall execute and deliver such other instruments and do and perform such other
acts and things as may be necessary or desirable for effecting completely the
consummation of the transactions contemplated hereby.
4.3 Additional Transitional Services Agreements. MRV and its Subsidiaries and
Optical Access and its Subsidiaries will enter into transitional services
agreements covering the provision of various transitional services, including
financial, accounting, real estate and site services, sales, customer support,
sales and marketing, human resources, supply chain services and information
technology services by MRV (and its Subsidiaries) to Optical Access (and its
Subsidiaries) or, in certain circumstances, vice versa. Such services will
generally be provided for a fee equal to the direct costs and indirect costs of
providing such services plus five percent (5%). The transitional services
agreements will generally provide for a term of one (1) year or less. However,
some
5
11
transitional services agreements may be extended beyond the initial one (1) year
term, in which case the fee for such services shall, generally, remain as the
direct costs and indirect costs of providing such services plus ten percent
(10%).
4.4 Agreement for Exchange of Information. (a) Each of MRV and Optical Access
agrees to provide, or cause to be provided, to each other, as soon as reasonably
practicable after written request therefor, any Information in the possession or
under the control of such party that the requesting party reasonably needs (i)
to comply with reporting, disclosure, filing or other requirements imposed on
the requesting party (including under applicable securities laws) by a
Governmental Authority having jurisdiction over the requesting party, (ii) for
use in any other judicial, regulatory, administrative or other proceeding or in
order to satisfy audit, accounting, claims, regulatory, litigation or other
similar requirements, (iii) to comply with its obligations under this Agreement
or any Ancillary Agreement or (iv) in connection with the ongoing businesses of
MRV or Optical Access, as the case may be; provided, however, that in the event
that any party determines that any such provision of Information could be
commercially detrimental, violate any law or agreement, or waive any
attorney-client privilege, the parties shall take all reasonable measures to
permit the compliance with such obligations in a manner that avoids any such
harm or consequence.
(b) Internal Accounting Controls; Financial Information. After the
Separation Date, (i) each party shall maintain in effect at its own cost and
expense adequate systems and controls for its business to the extent necessary
to enable the other party to satisfy its reporting, accounting, audit and other
obligations, and (ii) each party shall provide, or cause to be provided, to the
other party and its Subsidiaries in such form as such requesting party shall
request, at no charge to the requesting party, all financial and other data and
information as the requesting party determines necessary or advisable in order
to prepare its financial statements and reports or filings with any Governmental
Authority.
(c) Ownership of Information. Any Information owned by a party that is
provided to a requesting party pursuant to this Section 4.4 shall be deemed to
remain the property of the providing party. Unless specifically set forth
herein, nothing contained in this Agreement shall be construed as granting or
conferring rights of license or otherwise in any such Information.
(d) Record Retention. To facilitate the possible exchange of Information
pursuant to this Section 4.4 and other provisions of this Agreement after the
Separation Date, each party agrees to use its reasonable commercial efforts to
retain all Information in its respective possession or control on the Separation
Date substantially in accordance with the policies of MRV as in effect on the
Separation Date. However, except as set forth in the Tax Sharing Agreement, at
any time after the Separation Date, each party may amend its respective record
retention policies at such party's discretion; provided, however, that if a
party desires to effect the amendment within three (3) years after the
Separation Date, the amending party must give thirty (30) days prior written
notice of such change in the policy to the other party to this Agreement.
No party will destroy, or permit any of its Subsidiaries to destroy, any
Information that exists on the Separation Date (other than Information that is
permitted to be destroyed under the current record retention policies of MRV)
and that falls under the categories listed in Section 4.4(a), without first
using its reasonable commercial efforts to notify the other party of the
proposed destruction and giving the other party the opportunity to take
possession of such Information prior to such destruction.
6
12
(e) Limitation of Liability. No party shall have any liability to any
other party in the event that any Information exchanged or provided pursuant to
this Section 4.4 is found to be inaccurate, in the absence of gross negligence
or willful misconduct by the party providing such Information. No party shall
have any liability to any other party if any Information is destroyed or lost
after reasonable commercial efforts by such party to comply with the provisions
of Section 4.4(d).
(f) Other Agreements Providing for Exchange of Information. The rights
and obligations granted under this Section 4.4 are subject to any specific
limitations, qualifications or additional provisions on the sharing, exchange or
confidential treatment of Information set forth in this Agreement and any
Ancillary Agreement.
(g) Production of Witnesses; Records; Cooperation. After the Separation
Date, except in the case of a legal or other proceeding by one party against
another party (which shall be governed by such discovery rules as may be
applicable under Section 4.9 or otherwise), each party hereto shall use its
reasonable commercial efforts to make available to each other party, upon
written request, the former, current and future directors, officers, employees,
other personnel and agents of such party as witnesses and any books, records or
other documents within its control or which it otherwise has the ability to make
available, to the extent that any such person (giving consideration to business
demands of such directors, officers, employees, other personnel and agents) or
books, records or other documents may reasonably be required in connection with
any legal, administrative or other proceeding in which the requesting party may
from time to time be involved, regardless of whether such legal, administrative
or other proceeding is a matter with respect to which indemnification may be
sought hereunder. The requesting party shall bear all costs and expenses in
connection therewith.
4.5 Auditors and Audits; Annual and Quarterly Statements and Accounting. Each
party agrees that, for so long as MRV is required in accordance with United
States generally accepted accounting principles to consolidate Optical Access'
results of operations and financial position:
(a) Selection of Auditors. Optical Access shall not select a different
accounting firm from that used by MRV to serve as its (and its Subsidiaries')
independent certified public accountants ("Optical Access' Auditors") for
purposes of providing an opinion on its consolidated financial statements
without MRV's prior written consent (which shall not be unreasonably withheld).
(b) Date of Auditors' Opinion and Quarterly Reviews. Optical Access
shall use its reasonable commercial efforts to enable the Optical Access
Auditors to complete their audit such that they will date their opinion on
Optical Access' audited annual financial statements on the same date that MRV's
independent certified public accountants ("MRV's Auditors") date their opinion
on MRV's audited annual financial statements, and to enable MRV to meet its
timetable for the printing, filing and public dissemination of MRV's annual
financial statements. Optical Access shall use its reasonable commercial efforts
to enable the Optical Access Auditors to complete their quarterly review
procedures such that they will provide clearance on Optical Access' quarterly
financial statements on the same date that MRV's Auditors provide clearance on
MRV's quarterly financial statements.
(c) Annual and Quarterly Financial Statements. Optical Access shall
provide to MRV on a timely basis all Information that MRV reasonably requires to
meet its schedule for the
7
13
preparation, printing, filing, and public dissemination of MRV's annual and
quarterly financial statements. Without limiting the generality of the
foregoing, Optical Access will provide all required financial Information with
respect to Optical Access and its Subsidiaries to Optical Access' Auditors in a
sufficient and reasonable time and in sufficient detail to permit Optical
Access' Auditors to take all steps and perform all reviews necessary to provide
sufficient assistance to MRV's Auditors with respect to financial Information to
be included or contained in MRV's annual and quarterly financial statements.
Similarly, MRV shall provide to Optical Access on a timely basis all financial
Information that Optical Access reasonably requires to meet its schedule for the
preparation, printing, filing, and public dissemination of Optical Access'
annual and quarterly financial statements. Without limiting the generality of
the foregoing, MRV will provide all required financial Information with respect
to MRV and its Subsidiaries to MRV's Auditors in a sufficient and reasonable
time and in sufficient detail to permit MRV's Auditors to take all steps and
perform all reviews necessary to provide sufficient assistance to Optical
Access' Auditors with respect to Information to be included or contained in
Optical Access' annual and quarterly financial statements.
(d) Identity of Personnel Performing the Annual Audit and Quarterly
Reviews. Optical Access shall authorize Optical Access' Auditors to make
available to MRV's Auditors both the personnel who performed or will perform the
annual audits and quarterly reviews of Optical Access and work papers related to
the annual audits and quarterly reviews of Optical Access, in all cases within a
reasonable time prior to Optical Access' Auditors' opinion date, so that MRV's
Auditors are able to perform the procedures they consider necessary to take
responsibility for the work of Optical Access' Auditors as it relates to MRV's
Auditors' report on MRV's financial statements, all within sufficient time to
enable MRV to meet its timetable for the printing, filing and public
dissemination of MRV's annual and quarterly statements. Similarly, MRV shall
authorize MRV's Auditors to make available to Optical Access' Auditors both the
personnel who performed or will perform the annual audits and quarterly reviews
of MRV and work papers related to the annual audits and quarterly reviews of
MRV, in all cases within a reasonable time prior to MRV's Auditors' opinion
date, so that Optical Access' Auditors are able to perform the procedures they
consider necessary to take responsibility for the work of MRV's Auditors as it
relates to Optical Access' Auditors' report on Optical Access' statements, all
within sufficient time to enable Optical Access to meet its timetable for the
printing, filing and public dissemination of Optical Access' annual and
quarterly financial statements.
(e) Access to Books and Records. Optical Access shall provide MRV's
internal auditors and their designees access to Optical Access' and its
Subsidiaries' books and records so that MRV may conduct reasonable audits
relating to the financial statements provided by Optical Access pursuant hereto
as well as to the internal accounting controls and operations of Optical Access
and its Subsidiaries. Similarly, MRV shall provide Optical Access' internal
auditors and their designees access to MRV's and its Subsidiaries' books and
records so that Optical Access may conduct reasonable audits relating to the
financial statements provided by MRV pursuant hereto as well as to the internal
accounting controls and operations of MRV and its Subsidiaries
(f) Notice of Change in Accounting Principles. Optical Access shall give
MRV as much prior notice as reasonably practical of any proposed determination
of, or any significant changes in, its accounting estimates or accounting
principles from those in effect on the Separation Date. Optical Access will
consult with MRV and, if requested by MRV, Optical Access will consult with
MRV's independent public accountants with respect thereto. MRV shall give
Optical
8
14
Access as much prior notice as reasonably practical of any proposed
determination of, or any significant changes in, its accounting estimates or
accounting principles from those in effect on the Separation Date.
(g) Conflict with Third-Party Agreements. Nothing in Sections 4.4 and
4.5 shall require Optical Access to violate any agreement with any third party
regarding the confidentiality of confidential and proprietary information
relating to that third party or its business; provided, however, that in the
event that Optical Access is required under Sections 4.4 and 4.5 to disclose any
such Information, Optical Access shall use all commercially reasonable efforts
to seek to obtain such third party's consent to the disclosure of such
information.
4.6 Consistency with Past Practices. At all times, MRV and Optical Access will
conduct the Optical Access Business before the Separation Date in the ordinary
course, consistent with past practices.
4.7 Payment of Expenses. Except as otherwise provided in this Agreement, the
Ancillary Agreements or any other agreement between the parties relating to the
Separation or the IPO, all costs and expenses of the parties hereto in
connection with the Separation and the IPO (including underwriting discounts and
commissions) and costs and expenses of the parties hereto in connection with the
Separation shall be allocated between Optical Access and MRV. Optical Access and
MRV shall each be responsible for their own internal fees, costs and expenses
incurred in connection with the Separation and the IPO.
4.8 Foreign Subsidiaries. MRV and Optical Access shall cause each of their
foreign subsidiaries to execute such local transfer agreements, assignments,
assumptions, novations and other documents as shall be necessary to effect the
purposes of this Agreement with respect to their respective operations outside
the United States.
4.9 Dispute Resolution. (a) If a dispute, controversy or claim ("Dispute")
arises between the parties relating to the interpretation or performance of this
Agreement or the Ancillary Agreements, or the grounds for the termination
hereof, appropriate senior executives of each party who shall have the authority
to resolve the matter shall meet to attempt in good faith to negotiate a
resolution of the Dispute prior to pursuing other available remedies. The
initial meeting between the appropriate senior executives shall be referred to
herein as the "Dispute Resolution Commencement Date." Discussions and
correspondence relating to trying to resolve such Dispute shall be treated as
confidential information developed for the purpose of settlement and shall be
exempt from discovery or production and shall not be admissible. If the senior
executives are unable to resolve the Dispute within thirty (30) days from the
Dispute Resolution Commencement Date, and either party wishes to pursue its
rights relating to such Dispute, then the Dispute will be mediated by a mutually
acceptable mediator appointed pursuant to the mediation rules of JAMS/Endispute
within thirty (30) days after written notice by one party to the other demanding
non-binding mediation. Neither party may unreasonably withhold consent to the
selection of a mediator or the location of the mediation. Both parties will
share the costs of the mediation equally, except that each party shall bear its
own costs and expenses, including attorney's fees, witness fees, travel
expenses, and preparation costs. The parties may also agree to replace mediation
with some other form of non-binding or binding alternative dispute resolution
("ADR").
9
15
(b) Any Dispute which the parties cannot resolve through mediation
within ninety (90) days of the Dispute Resolution Commencement Date, unless
otherwise mutually agreed, shall be submitted to final and binding arbitration
under the then current Commercial Arbitration Rules of the American Arbitration
Association ("AAA"), by three (3) arbitrators in Los Angeles County, California.
Such arbitrators shall be selected by the mutual agreement of the parties or,
failing such agreement, shall be selected according to the aforesaid AAA rules.
The arbitrators will be instructed to prepare and deliver a written, reasoned
opinion stating their decision within thirty (30) days of the completion of the
arbitration. The prevailing party in such arbitration shall be entitled to
expenses, including costs and reasonable attorneys' and other professional fees,
incurred in connection with the arbitration (but excluding any costs and fees
associated with prior negotiation or mediation). The decision of the arbitrator
shall be final and non-appealable and may be enforced in any court of competent
jurisdiction. The doctrine of laches, waiver or estoppel shall not be applied in
any ADR procedure to adversely affect the rights of either party.
(c) Any Dispute regarding the following is not required to be
negotiated, mediated or arbitrated prior to seeking relief from a court of
competent jurisdiction: breach of any obligation of confidentiality;
infringement, misappropriation, or misuse of any intellectual property right;
any other claim where interim relief from the court is sought to prevent serious
and irreparable injury to one of the parties or to others. However, the parties
to the Dispute shall make a good faith effort to negotiate and mediate such
Dispute, according to the above procedures, while such court action is pending.
(d) Continuity of Service and Performance. Unless otherwise agreed in
writing, the parties will continue to provide service and honor all other
commitments under this Agreement and each Ancillary Agreement during the course
of dispute resolution pursuant to the provisions of this Section 4.9 with
respect to all matters not subject to such dispute, controversy or claim.
4.10 Governmental Approvals. To the extent that the Separation requires any
Governmental Approvals, the parties will use their reasonable commercial efforts
to obtain any such Governmental Approvals.
4.11 No Representation or Warranty. MRV does not, in this Agreement or any other
agreement, instrument or document contemplated by this Agreement, make any
representation as to, warranty of or covenant with respect to:
(a) the value of any asset or thing of value to be transferred to
Optical Access;
(b) the freedom from encumbrance of any asset or thing of value to be
transferred to Optical Access;
(c) the absence of defenses or freedom from counterclaims with respect
to any claim to be transferred to Optical Access; or
(d) the legal sufficiency of any assignment, document or instrument
delivered hereunder to convey title to any asset or thing of value upon its
execution, delivery and filing.
Except as may expressly be set forth herein or in any Ancillary
Agreement, all assets to be transferred to Optical Access shall be transferred
"AS IS, WHERE IS" and to the extent that any assignment, document or instrument
of conveyance is legally insufficient to vest in Optical Access the title of MRV
to the assets to be transferred, MRV shall take such action as is necessary to
effectuate the transfer of its title to such assets to Optical Access.
10
16
4.12 Non-Solicitation of Employees. MRV and Optical Access each agree not to
solicit or recruit, without the other party's express written consent, the other
party's employees for a period of two (2) years following the Separation Date.
To the extent this prohibition is waived, any recruitment efforts by either MRV
or Optical Access during the period of one (1) year after the Separation Date
shall be coordinated with each party's senior officer of Human Resources or his
or her designee and appropriate management. Notwithstanding the foregoing, this
prohibition on solicitation does not apply to actions taken by a party either:
(a) solely as a result of an employee's affirmative response to a general
recruitment effort carried out through a public solicitation or general
solicitation, or (b) as a result of an employee's initiative.
4.13 Employee Agreements. Definition. As used in this Section 4.13, "Employee
Agreement" means the Invention and Nondisclosure Agreement, the Non-Competition
and Non-Solicitation Agreement and corresponding agreements in foreign countries
executed by each MRV employee.
(a) Survival of MRV Employee Agreement Obligations and MRV's Common Law
Rights. The MRV Employee Agreements of all former MRV employees transferred to
Optical Access as of the Separation Date shall remain in full force and effect
according to their terms; provided, however, that none of the following acts
committed by former MRV employees within the scope of their Optical Access
employment shall constitute a breach of such MRV Employee Agreements: (i) the
use or disclosure of Confidential Information (as that term is defined in the
former MRV employee's MRV Employee Agreement) for or on behalf of Optical
Access, if such disclosure is consistent with the rights granted to Optical
Access and restrictions imposed on Optical Access under this Agreement, any
Ancillary Agreement or any other agreement between the parties; (ii) the
disclosure and assignment to Optical Access of rights in proprietary
developments authored or conceived by the former MRV employee after the
Separation Date and resulting from the use of, or based upon intellectual
property (whether patented or not) which is retained by MRV; provided, however,
that in no event shall such disclosure and assignment be regarded as assigning
the underlying intellectual property to Optical Access; (iii) the rendering of
any services, directly or indirectly, to Optical Access to the extent such
services are consistent with the assignment or license of rights granted to
Optical Access and the restrictions imposed on Optical Access under this
Agreement, any Ancillary Agreement or any other agreement between the parties;
and (iv) solicitation of the employees of one party by the other party prior to
the Separation Date (so long as such solicitation does not violate Section 4.12
hereof). Further, MRV retains any rights it has under statute or common law with
respect to actions by its former employees to the extent such actions are
inconsistent with the rights granted to Optical Access and restrictions imposed
on Optical Access under this Agreement, any Ancillary Agreement or any other
agreement between the parties.
(b) Assignment, Cooperation for Compliance and Enforcement.
(i) MRV retains all rights under the MRV Employee Agreements of
all former MRV employees necessary to permit MRV to protect the rights and
interests of MRV, but hereby transfers and assigns to Optical Access its rights
under the MRV Employee Agreements of all former MRV employees to the extent
required to permit Optical Access to enjoin, restrain, recover damages from or
obtain specific performance of the MRV Employee Agreements or obtain other
remedies against any employee who breaches his/her MRV Employee Agreement.
11
17
(ii) MRV and Optical Access agree, at their own respective cost
and expense, to use their reasonable efforts to cooperate as follows: (A)
Optical Access shall advise MRV of: (1) any violation(s) of the MRV Employee
Agreement by former MRV employees, and (2) any violation(s) of the Optical
Access Employee Agreement which affect MRV's rights; and (B) MRV shall advise
Optical Access of any violations of the MRV Employee Agreement by current or
former MRV employees which affect Optical Access' rights.
(iii) MRV and Optical Access each may separately enforce the MRV
Employee Agreements of former MRV employees to the extent necessary to
reasonably protect their respective interests, provided, however, that (i)
Optical Access shall not commence any legal action relating thereto without
first consulting with MRV's General Counsel or his/her designee or, if no such
office exists, the Chief Financial Officer or his or her designee and (ii) MRV
shall not commence any legal action relating thereto against any former MRV
employee who is at the time an Optical Access employee without first consulting
with Optical Access' General Counsel or his/her designee or if no such officer
exists, the Chief Financial Officer or his or her designee. If either party, in
seeking to enforce any MRV Employee Agreement, notifies the other party that it
requires, or desires, such party to join in such action, then the other party
shall do so. In addition, if either party commences or becomes a party to any
action to enforce a MRV Employee Agreement of a former MRV employee, the other
party shall, whether or not it becomes a party to the action, cooperate with the
other party by making available its files and employees who have information or
knowledge relevant to the dispute, subject to appropriate measures to protect
the confidentiality of any proprietary or confidential information that may be
disclosed in the course of such cooperation or action and subject to any
relevant privacy laws and regulations. Any such action shall be conducted at the
expense of the party bringing the action and the parties shall agree on a case
by case basis on compensation, if any, of the other party for the value of the
time of such other party's employees as reasonably required in connection with
the action.
(iv) MRV and Optical Access understand and acknowledge that
matters relating to the making, performance, enforcement, assignment and
termination of employee agreements are typically governed by the laws and
regulations of the national, federal, state or local governmental unit where an
employee resides, or where an employee's services are rendered, and that such
laws and regulations may supersede or limit the applicability or enforceability
of this Section 4.13. In such circumstances, MRV and Optical Access agree to
take action with respect to the employee agreements that best accomplishes the
parties' objectives as set forth in this Section 4.13 and that is consistent
with applicable law.
4.14 Cooperation in Obtaining New Agreements. MRV understands that, prior to the
Separation Date, Optical Access has derived benefits under certain agreements
and relationships between MRV and third parties, which agreements and
relationships are not being assigned or transferred to Optical Access in
connection with the Separation. Upon the request of Optical Access, MRV agrees
to make introductions of appropriate Optical Access personnel to MRV's contacts
at such third parties, and agrees to provide reasonable assistance to Optical
Access, at MRV's own expense, so that Optical Access may enter into agreements
or relationships with such third parties under substantially equivalent terms
and conditions, including financial terms and conditions, that apply to MRV.
Such assistance may include, but is not limited to, (a) requesting and
encouraging such third parties to enter into such agreements or relationships
with Optical Access, (b) attending meetings and negotiating sessions with
Optical Access and such third parties, and (c) participating in buying
consortiums with Optical Access. MRV also
12
18
understands that certain agreements between MRV and third parties which are
being assigned to Optical Access in connection with the Separation may require
the consent of the applicable third party. MRV shall assist Optical Access in
seeking and obtaining the consent of such third parties to such assignment. In
no event will MRV have any obligations hereunder after the first anniversary of
the Separation Date.
4.15 Property Damage to Optical Access Assets Prior to the Separation Date. In
the event of any property damage, other than ordinary wear and tear, to any
Optical Access Assets held by MRV which occurs prior to the Separation Date, MRV
shall repair or otherwise address such damage in the ordinary course of business
consistent with past practices; provided, however, that nothing in this clause
shall restrict MRV from disposing of any Assets in the ordinary course of
business consistent with past practices.
4.16 Affiliate Committee A committee of the Board of Directors of Optical Access
consisting of outside independent board members shall be formed to approve the
terms of any arrangement or agreement outside of the ordinary course of business
(as defined by such independent board committee) between Optical Access and MRV
or any of its affiliates.
ARTICLE V
MISCELLANEOUS
5.1 LIMITATION OF LIABILITY. IN NO EVENT SHALL ANY MEMBER OF THE MRV GROUP OR
OPTICAL ACCESS GROUP BE LIABLE TO ANY OTHER MEMBER OF THE MRV GROUP OR OPTICAL
ACCESS GROUP FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE
DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY
(INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED,
HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT EACH PARTY'S
INDEMNIFICATION OBLIGATIONS FOR LIABILITIES AS SET FORTH IN THE INDEMNIFICATION
AND INSURANCE MATTERS AGREEMENT.
5.2 Entire Agreement. This Agreement, the Ancillary Agreements and the Exhibits
and Schedules referenced or attached hereto and thereto, constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and shall supersede all prior written and oral and all contemporaneous
oral agreements and understandings with respect to the subject matter hereof and
thereof.
5.3 Governing Law. This Agreement shall be construed in accordance with and all
Disputes hereunder shall be governed by the laws of the State of California,
excluding its conflict of law rules and the United Nations Convention on
Contracts for the International Sale of Goods. The Superior Court of Los Angeles
County and/or the United States District Court for the Southern District of
California shall have jurisdiction and venue over all Disputes between the
parties that are permitted to be brought in a court of law pursuant to Section
4.9 above.
13
19
5.4 Termination. This Agreement and all Ancillary Agreements may be terminated
at any time prior to the IPO Closing Date by and in the sole discretion of MRV
without the approval of Optical Access. This Agreement may be terminated at any
time after the IPO Closing Date by mutual consent of MRV and Optical Access. In
the event of termination pursuant to this Section 5.4, no party shall have any
liability of any kind to the other party.
5.5 Notices. Notices, offers, requests or other communications required or
permitted to be given by either party pursuant to the terms of this Agreement
shall be given in writing to the respective parties to the following addresses:
if to MRV :
MRV Communications, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇, Chief
Executive Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to Optical Access:
Optical Access, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇, Chief
Executive Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the party to whom notice is given may have
previously furnished to the other in writing as provided herein. Any notice
involving non-performance, termination, or renewal shall be sent by hand
delivery, recognized overnight courier or, within the United States, may also be
sent via certified mail, return receipt requested. All other notices may also be
sent by fax, confirmed by first class mail. All notices shall be deemed to have
been given and received on the earlier of actual delivery or three (3) days from
the date of postmark. With respect to notice sent by fax, confirmation during
normal business hours, as evidenced by the sender's fax machine, shall
constitute delivery; if such notification is not during normal business hours,
delivery by such fax will be deemed to be made on the next business day.
5.6 Counterparts. This Agreement, including the Ancillary Agreement and the
Exhibits and Schedules hereto and thereto and the other documents referred to
herein or therein, may be executed in counterparts, each of which shall be
deemed to be an original but all of which shall constitute one and the same
agreement.
14
20
5.7 Binding Effect; Assignment. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective legal representatives
and successors, and nothing in this Agreement, express or implied, is intended
to confer upon any other Person any rights or remedies of any nature whatsoever
under or by reason of this Agreement. This Agreement may be enforced separately
by each member of the MRV Group and each member of the Optical Access Group.
Neither party may assign this Agreement or any rights or obligations hereunder,
without the prior written consent of the other party, and any such assignment
shall be void; provided, however, either party may assign this Agreement to a
successor entity in conjunction with such party's reincorporation.
5.8 Severability. If any term or other provision of this Agreement or the
Exhibits or Schedules attached hereto is determined by a court, administrative
agency or arbitrator to be invalid, illegal or incapable of being enforced by
any rule of law or public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to either party. Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner to the end that transactions contemplated
hereby are fulfilled to the fullest extent possible.
5.9 Failure or Indulgence Not Waiver; Remedies Cumulative. No failure or delay
on the part of either party hereto in the exercise of any right hereunder shall
impair such right or be construed to be a waiver of, or acquiescence in, any
breach of any representation, warranty or agreement herein, nor shall any single
or partial exercise of any such right preclude other or further exercise thereof
or of any other right. All rights and remedies existing under this Agreement or
the Exhibits or Schedules attached hereto are cumulative to, and not exclusive
of, any rights or remedies otherwise available.
5.10 Amendment. No change or amendment will be made to this Agreement or the
Exhibits or Schedules attached hereto except by an instrument in writing signed
on behalf of each of the parties to such agreement.
5.11 Authority. Each of the parties hereto represents to the other that (a) it
has the corporate or other requisite power and authority to execute, deliver and
perform this Agreement, (b) the execution, delivery and performance of this
Agreement by it have been duly authorized by all necessary corporate or other
actions, (c) it has duly and validly executed and delivered this Agreement, and
(d) this Agreement is a legal, valid and binding obligation, enforceable against
it in accordance with its terms subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and general equity principles.
5.12 Interpretation. The headings contained in this Agreement, in any Exhibit or
Schedule hereto and in the table of contents to this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Any capitalized term used in any Exhibit or Schedule but not
otherwise defined therein, shall have the meaning assigned to such term in this
Agreement. When a reference is made in this Agreement to an Article or a
15
21
Section, Exhibit or Schedule, such reference shall be to an Article or Section
of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated.
5.13 Conflicting Agreements. In the event of conflict between this Agreement and
any Ancillary Agreement or other agreement executed in connection herewith, the
provisions of such other agreement shall prevail.
ARTICLE VI
DEFINITIONS
6.1 Affiliated Company. "Affiliated Company" of any Person means any entity that
controls, is controlled by, or is under common control with such Person. As used
herein, "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such entity,
whether through ownership of voting securities or other interests, by contract
or otherwise.
6.2 Governmental Approvals. "Governmental Approvals" means any notices, reports
or other filings to be made, or any consents, registrations, approvals, permits
or authorizations to be obtained from, any Governmental Authority.
6.3 Governmental Authority. "Governmental Authority" shall mean any federal,
state, local, foreign or international court, government, department,
commission, board, bureau, agency, official or other regulatory, administrative
or governmental authority.
6.4 Information. "Information" means information, whether or not patentable or
copyrightable, in written, oral, electronic or other tangible or intangible
forms, stored in any medium, including studies, reports, records, books,
contracts, instruments, surveys, discoveries, ideas, concepts, know-how,
techniques, designs, specifications, drawings, blueprints, diagrams, models,
prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes,
computer programs or other software, marketing plans, customer names,
communications by or to attorneys (including attorney-client privileged
communications), memos and other materials prepared by attorneys or under their
direction (including attorney work product), and other technical, financial,
employee or business information or data.
6.5 IPO Closing Date. "IPO Closing Date" has the meaning set forth in the
Section 3.3 hereof.
6.6 Optical Access Assets. "Optical Access Assets" has the meaning set forth in
Section 1.2 of the Assignment Agreement.
6.7 Optical Access Group. "Optical Access Group" means Optical Access, each
Subsidiary and Affiliated Company of Optical Access immediately after the
Separation Date or that is contemplated to be a Subsidiary or Affiliated Company
of Optical Access and each Person that becomes a Subsidiary or Affiliate Company
of Optical Access after the Separation Date.
6.8 Optical Access' Auditors. "Optical Access' Auditors" means Optical Access'
independent certified public accountants.
16
22
6.9 Person. "Person" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
6.10 Subsidiary. "Subsidiary" of any Person means a corporation or other
organization whether incorporated or unincorporated of which at least a majority
of the securities or interests having by the terms thereof ordinary voting power
to elect at least a majority of the board of directors or others performing
similar functions with respect to such corporation or other organization, is
directly or indirectly owned or controlled by such Person or by any one or more
of its Subsidiaries, or by such Person and one or more of its Subsidiaries;
provided, however, that no Person that is not directly or indirectly
wholly-owned by any other Person shall be a Subsidiary of such other Person
unless such other Person controls, or has the right, power or ability to
control, that Person.
6.11 MRV Group. "MRV Group" means MRV, each Subsidiary and Affiliated Company of
MRV (other than any member of the Optical Access Group) immediately after the
Separation Date, and each Person that becomes a Subsidiary or Affiliate Company
of MRV after the Separation Date.
6.12 MRV's Auditors. "MRV's Auditors" means MRV's independent certified public
accountants.
[REST OF PAGE INTENTIONALLY LEFT BLANK.]
17
23
WHEREFORE, the parties have signed this Master Separation Agreement effective as
of the date first set forth above.
MRV COMMUNICATIONS, INC.,
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chairman
and
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
▇▇▇▇ ▇▇▇▇▇, Chief Executive
Officer
OPTICAL ACCESS, INC.,
By: /s/ ▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇, Chief Executive Officer
------------------------------------
and
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇, Vice President of
------------------------------------
Finance and Chief Financial Officer
18
24
EXHIBITS
Exhibit A Certificate of Secretary of MRV
Exhibit B Certificate of Secretary of Optical Access
Exhibit C General Assignment and Assumption Agreement
Exhibit D-1 Master Technology Ownership and License Agreement
Exhibit D-2 Master Patent Ownership and License Agreement
Exhibit D-3 Master Trademark Ownership and License Agreement
Exhibit E Employee Matters Agreement
Exhibit F Tax Sharing Agreement
Exhibit G Master Transitional Services Agreement
Exhibit H Real Estate Matters Agreement
Exhibit I Master Confidential Disclosure Agreement
Exhibit J Indemnification and Insurance Matters Agreement
19
25
EXHIBIT A
CERTIFICATE OF SECRETARY OF MRV
I, ____________________, Secretary of MRV Communications, Inc., a
corporation organized and existing under the laws of the State of Delaware (the
"Company"), DO HEREBY CERTIFY that attached hereto are true and correct copies
of certain resolutions adopted in a Unanimous Written Consent of the MRV
Communications, Inc. Board of Directors on September 29, 2000, which resolutions
have not been amended, modified, rescinded and remain in full force and effect
on the date hereof.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed the seal of
MRV Communications, Inc. this __________________ day of ___________, 2000.
-----------------------------------
, Secretary
----------------
20
26
EXHIBIT B
CERTIFICATE OF SECRETARY OF OPTICAL ACCESS
I, ____________________, Secretary of Optical Access, Inc., a
corporation organized and existing under the laws of the State of California
(the "Company"), DO HEREBY CERTIFY that attached hereto are true and correct
copies of certain resolutions adopted in a Unanimous Written Consent of the
Optical Access, Inc. Board of Directors on __________, 2000, which resolutions
have not been amended, modified, rescinded and remain in full force and effect
on the date hereof.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed the seal of
Optical Access, Inc. this __________________ day of ___________, 2000.
-----------------------------------
, Secretary
----------------
21
27
EXHIBIT C
GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT
22
28
EXHIBIT D-1
MASTER TECHNOLOGY OWNERSHIP AND LICENSE AGREEMENT
23
29
EXHIBIT D-2
MASTER PATENT OWNERSHIP AND LICENSE AGREEMENT
24
30
EXHIBIT D-3
MASTER TRADEMARK OWNERSHIP AND LICENSE AGREEMENT
25
31
EXHIBIT E
EMPLOYEE MATTERS AGREEMENT
26
32
EXHIBIT F
TAX SHARING AGREEMENT
27
33
EXHIBIT G
MASTER TRANSITIONAL SERVICES AGREEMENT
28
34
EXHIBIT H
REAL ESTATE MATTERS AGREEMENT
29
35
EXHIBIT I
MASTER CONFIDENTIAL DISCLOSURE AGREEMENT
30
36
EXHIBIT J
INDEMNIFICATION AND INSURANCE MATTERS AGREEMENT
31