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EXHIBIT 99.2
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of February 22, 2000 (the
"Agreement"), between ADC Telecommunications, Inc., a Minnesota corporation
("Optionee"), and PairGain Technologies, Inc., a Delaware Corporation (the
"Company"). Capitalized terms which are used but not defined herein shall have
the meanings ascribed to them in the Merger Agreement (as defined below).
WITNESSETH:
WHEREAS, simultaneously with the execution and delivery of this
Agreement, Optionee and the Company are entering into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), which provides for
a wholly owned subsidiary of Optionee to be merged with and into the Company in
accordance with the General Corporation Law of the State of Delaware and the
terms of the Merger Agreement, as a result of which the Company will be the
surviving corporation and a wholly owned subsidiary of Optionee;
WHEREAS, as a condition to Optionee's willingness to enter into the
Merger Agreement, Optionee has requested that the Company grant to Optionee an
option to purchase up to 14,489,951 authorized but unissued shares of the
Company's common stock, upon the terms and subject to the conditions hereof; and
WHEREAS, in order to induce Optionee to enter into the Merger
Agreement, the Company has agreed to grant Optionee the requested option.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein and in the Merger Agreement, the
parties hereto agree as follows:
1. The Option; Exercise; Adjustments.
(a) The Company hereby grants to Optionee an irrevocable option (the
"Option") to purchase from time to time up to 14,489,951 authorized but unissued
shares of common stock, par value $.0005 per share, of the Company (the "Company
Common Stock") upon the terms and subject to the conditions set forth herein
(the "Optioned Shares," which represent 19.9% of the issued and outstanding
shares of Company Common Stock as of the date hereof); provided, however, that
in no event shall the number of shares of Company Common Stock for which the
Option is exercisable exceed 19.9% of the issued and outstanding shares of
Company Common Stock at the time of exercise (excluding any such shares issued
or issuable under the Option).
(b) Subject to the terms and conditions set forth in this Agreement,
the Option may be exercised by Optionee in whole or, from time to time, in part,
at any time within 270
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days after the date hereof that the conditions in Section 2(a) hereof are
satisfied and prior to the termination of the Option in accordance with Section
11 hereof. In the event Optionee wishes to exercise the Option, Optionee shall
send a written notice to the Company (the "Stock Exercise Notice") specifying
the total number of Optioned Shares it wishes to purchase and a date for the
closing of such purchase, which date shall be not less than five days or more
than 60 days after the Company's receipt of the Stock Exercise Notice (the
"Closing Date"). Optionee may revoke an exercise of the Option at any time prior
to the Closing Date by written notice to the Company. At any Closing Date, the
Company will deliver to Optionee a certificate or certificates representing the
Optioned Shares (which shall be endorsed with appropriate restrictive legends)
in the denominations designated by Optionee in its Stock Exercise Notice, free
and clear of all liens and encumbrances and subject to no preemptive rights, as
well as an executed new agreement with the same terms as this Agreement
evidencing the right to purchase the balance of the Optioned Shares purchasable
hereunder, if any. After payment of the Exercise Price for the Optioned Shares
covered by the Stock Exercise Notice, the Option shall be deemed exercised to
the extent of the Optioned Shares specified in the Stock Exercise Notice as of
the date such Stock Exercise Notice is given to the Company.
(c) In the event of any change in the number of issued and outstanding
shares of Company Common Stock by reason of any share dividend,
reclassification, consolidation, division, subdivision or cancellation or other
similar change in the corporate or capital structure of the Company, the number
of Optioned Shares subject to the Option and the Exercise Price (as hereinafter
defined) per Optioned Share shall be appropriately adjusted. In the event that
any additional shares of Company Common Stock are issued after the date of this
Agreement (other than pursuant to an event described in the preceding sentence
or pursuant to this Agreement), the number of Optioned Shares subject to the
Option shall be adjusted so that, after such issuance, it equals at least 19.9%
of the number of shares of Company Common Stock then issued and outstanding
(without considering any shares subject to or issued pursuant to the Option).
2. Conditions to Exercise of Option and Delivery of Optioned Shares.
(a) Optionee's right to exercise the Option is subject to the
following conditions:
(i) No preliminary or permanent injunction or other order having
been issued by any federal or state court of competent jurisdiction in
the United States invalidating the grant or prohibiting the exercise of
the Option shall be in effect; and
(ii) One or more of the following events shall have occurred on
or after the date hereof or Optionee shall have become aware on or
after the date hereof of the occurrence of any of the following: (A)
any individual, corporation, limited liability company, limited or
general partnership, joint venture, association, joint stock company,
trust, unincorporated organization or other entity or group (referred
to hereinafter, singularly or collectively, as a "Person"), other than
Optionee or its "affiliates" (as defined in Rule 12b-2 promulgated
under the Securities Exchange Act of 1934, as
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amended (the "Exchange Act")), acquires or becomes the beneficial owner
of 20% or more of the outstanding shares of Company Common Stock; (B)
any new group is formed which beneficially owns 20% or more of the
outstanding shares of Company Common Stock (other than a group which
includes or may reasonably be deemed to include Optionee or any of its
affiliates); (C) any Person (other than Optionee or its affiliates)
shall have commenced a tender or exchange offer for 20% or more of the
then outstanding shares of Company Common Stock or publicly proposed
any bona fide merger, consolidation or acquisition of all or
substantially all the assets of the Company, or other similar business
combination involving the Company; (D) any Person (other than Optionee
or its affiliates) is granted any option or right, conditional or
otherwise, to acquire or otherwise become the beneficial owner of
shares of Company Common Stock which, together with all shares of
Company Common Stock beneficially owned by such Person, results or
would result in such Person being the beneficial owner of 20% or more
of the outstanding shares of Company Common Stock; or (E) any event or
circumstance occurs that would entitle Optionee to receive the
Termination Fee provided for in Section 7.3(c) of the Merger Agreement.
For purposes of this subparagraph (iii), the terms "group" and
"beneficial owner" shall be defined by reference to Section 13(d) of
the Exchange Act.
(b) Optionee's obligation to purchase the Optioned Shares following
the exercise of the Option, and the Company's obligation to deliver the Optioned
Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued
by any federal or state court of competent jurisdiction in the United
States prohibiting the delivery of the Optioned Shares shall be in
effect;
(ii) The purchase of the Optioned Shares will not violate Rule
14e-5 promulgated under the Exchange Act; and
(iii) All applicable waiting periods under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), shall
have expired or been terminated.
3. Exercise Price for Optioned Shares. Optionee will purchase the
Optioned Shares from the Company at a price per Optioned Share equal to $18.03
(the "Exercise Price"), payable in cash. Any payment made by Optionee to the
Company pursuant to this Agreement shall be made by wire transfer of federal
funds to a bank account designated by the Company or a check payable in
immediately available funds.
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4. Representations and Warranties of the Company. The Company
represents and warrants to Optionee as follows:
(a) Corporate Authority. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by the Company and the consummation
by it of the transactions contemplated hereby have been duly authorized by the
Company's Board of Directors and no other corporate proceedings on the part of
the Company are necessary to authorize this Agreement or to consummate the
transactions so contemplated. This Agreement has been duly executed and
delivered by the Company and constitutes a valid and binding obligation of the
Company enforceable against the Company in accordance with its terms except to
the extent that its enforceability may be limited to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other laws
affecting creditors rights generally and to general equitable principles.
(b) Shares Reserved for Issuance. The Company has taken all
necessary corporate action to authorize and reserve and permit it to issue, and
at all times from the date hereof through the termination of this Agreement in
accordance with its terms, will have reserved for issuance upon exercise of this
Option, that number of Optioned Shares equal to the maximum number of shares of
Company Common Stock at any time and from time to time purchasable upon exercise
of the Option, and the Optioned Shares, when issued and delivered by the Company
to Optionee upon exercise of the Option, will be duly authorized, validly
issued, fully paid and nonassessable, free and clear of all liens or
encumbrances, free of preemptive rights, and the Optioned Shares shall be listed
on the Nasdaq National Market.
(c) Consents; No Violations. Except as otherwise required by the HSR
Act, except for routine filings and subject to Section 7, the execution and
delivery of this Agreement by the Company and the consummation by it of the
transactions contemplated hereby do not and will not require the consent,
approval or authorization of, or filing with, any Person or public authority and
(i) will not violate, breach or conflict with the Company's Charter Documents or
Governing Documents, or (ii) result in the acceleration or termination of, or
constitute a default under, any agreement, lease, contract, note, indenture,
license, approval, permit, understanding or other instrument, or any statute,
rule, regulation, judgment, order or other restriction binding upon or
applicable to the Company or any of its subsidiaries or any of their respective
properties or assets, except for any such acceleration, termination or default
which could not reasonably be expected to have a Company Material Adverse
Effect.
5. Representations and Warranties of Optionee. Optionee represents and
warrants to the Company as follows:
(a) Corporate Authority. The execution and delivery of this
Agreement by Optionee and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Optionee and this Agreement has been duly executed and delivered
by Optionee and constitutes a valid and binding agreement of Optionee, except to
the extent that its enforceability may be limited to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other laws
affecting creditors rights generally and to general equitable principles.
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(b) Investment Representations. Optionee is acquiring the Option
and, if and when it exercises the Option, will be acquiring the Optioned Shares
issuable upon the exercise thereof, for its own account and not with a view to
distribution or resale in any manner which would be in violation of the
Securities Act of 1933, as amended (the "Securities Act"), or any rule or
regulation under the Securities Act, and will not sell or otherwise dispose of
the Optioned Shares except pursuant to an effective registration statement under
the Securities Act or a valid exemption from registration under the Securities
Act.
6. The Closing. Any closing hereunder shall take place on the Closing
Date specified by Optionee in its Stock Exercise Notice pursuant to Section 1 at
10:00 a.m., U.S. Pacific Time, or the first business day thereafter on which all
of the conditions in Section 2 are met, at the executive office of the Company
located in Tustin, California, or at such other time and place as the parties
hereto may agree.
7. Filings Related to Optioned Shares. The Company will make such
filings with the SEC as are required by the Exchange Act, and will make all
necessary filings by the Company under the HSR Act and to list the Optioned
Shares on the Nasdaq National Market.
8. Registration Rights.
(a) Demand Registration Rights. After the date the Option becomes
exercisable pursuant to Section 1(b), the Company shall, subject to the
conditions of Section 8(c) below, if requested by Optionee within 12 months
following such date, as expeditiously as possible prepare and file a
registration statement under the Securities Act if such registration is
necessary in order to permit the sale or other disposition of any or all shares
of Company Common Stock or other securities that have been acquired by or are
issuable to the Selling Shareholder upon exercise of the Option in accordance,
subject to the terms and conditions of this Section 8, with the intended method
of sale or other disposition stated by the Optionee in such request, including
without limitation a "shelf" registration statement under Rule 415 under the
Securities Act or any successor provision ("Rule 415"), and the Company shall
use its best efforts to qualify such shares or other securities for sale under
any applicable state securities laws; provided, however, that the Company shall
not be required to consent to general jurisdiction or qualify to do business in
any state where it is not otherwise required to so consent to such jurisdiction
or to so qualify to do business.
(b) Additional Registration Rights. If the Company, at any time
after the exercise of the Option, proposes to register any securities of the
Company or rights representing securities of the Company under the Securities
Act, the Company will promptly give written notice to the Optionee of its
intention to do so and, upon the written request of any Optionee given within
thirty (30) days after receipt of any such notice (which request shall specify
the number of Shares of Company Common Stock intended to be included in such
public offering by
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the Optionee), the Company will cause all such shares for which a Optionee
requests participation in such registration, to be so registered and included in
such public offering; provided, however, that the Company may elect not to cause
any such shares to be so registered (i) if such public offering is to be
underwritten and the underwriters in good faith object for valid business
reasons, or (ii) in the case of a registration solely to implement an employee
benefit plan or a registration filed on Form S-4 of the Securities Act or any
successor form; provided, further, however, that such election pursuant to (i)
may only be made twice. If some but not all of the shares of Company Common
Stock with respect to which the Company shall have received requests for
registration pursuant to this Section 8(b) shall be excluded from such
registration, the Company shall make appropriate allocation of shares to be
registered among the selling shareholders desiring to register their shares pro
rata in the proportion that the number of shares requested to be registered by
each such selling shareholder bears to the total number of shares requested to
be registered by all such selling shareholders then desiring to have shares of
Company Common Stock registered for sale.
(c) Conditions to Required Registration. The Company shall use all
reasonable efforts to cause each registration statement referred to in Section
8(a) above to become effective and to obtain all consents or waivers of other
parties which are required therefor and to keep such registration effective;
provided, however, that the Company may delay any registration of Optioned
Shares required pursuant to Section 8(a) above for a period not exceeding 90
days provided the Company shall in good faith determine that any such
registration would adversely affect the Company (provided that this right may
not be exercised more than once during any twelve (12) month period), and the
Company shall not be required to register Optioned Shares under the Securities
Act pursuant to Section 8(a) above:
(i) on more than one occasion during any calendar year;
(ii) on more than two occasions in total;
(iii) within ninety (90) days after the effective date of a
registration referred to in Section 8(b) above pursuant to which the
Optionee was afforded the opportunity to register such shares under the
Securities Act and such shares were registered as requested; or
(iv) if all the Optioned Shares proposed to be registered could
be sold by the Optionee in a ninety (90) day period in accordance with
Rule 144.
In addition to the foregoing, the Company shall not be required to
maintain the effectiveness of any registration statement, other than a
registration statement filed under Rule 415, after the expiration of six (6)
months from the effective date of such registration statement. The Company shall
use all reasonable efforts to make any filings, and take all steps, under all
applicable state securities laws to the extent necessary to permit the sale or
other disposition of the Optioned Shares so registered in accordance with the
intended method of distribution for such shares; provided, however, that the
Company shall not be required to consent to general
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jurisdiction or qualify to do business in any state where it is not otherwise
required to so consent to such jurisdiction or to so qualify to do business. The
Optionee shall provide the Company with all information reasonably requested by
the Company that is necessary for inclusion in any registration statement
required to be filed hereunder.
(d) Expenses. Except where applicable state law prohibits such
payments, the Company will pay all expenses (including without limitation
registration fees, qualification fees, blue sky fees and expenses (including the
fees and expenses of counsel), legal expenses, including the reasonable fees and
expenses of one counsel to the holders whose Optioned Shares are being
registered, printing expenses and the costs of special audits or "cold comfort"
letters, expenses of underwriters, excluding discounts and commissions but
including liability insurance if the Company so desires or the underwriters so
require, and the reasonable fees and expenses of any necessary special experts)
in connection with each registration pursuant to Section 8(a) or 8(b) above
(including the related offerings and sales by holders of Optioned Shares) and
all other qualifications, notifications or exemptions pursuant to Section 8(a)
or 8(b) above.
(e) Indemnification. In connection with any registration under
Section 8(a) or 8(b) above, the Company hereby indemnifies the Optionee, and
each underwriter thereof, including each person, if any, who controls such
Optionee or underwriter within the meaning of Section 15 of the Securities Act,
against all expenses, losses, claims, damages and liabilities caused by any
untrue, or alleged untrue, statement of a material fact contained in any
registration statement or prospectus or notification or offering circular
(including any amendments or supplements thereto) or any preliminary prospectus,
or caused by any omission, or alleged omission, to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such expenses, losses, claims, damages or
liabilities of such indemnified party are caused by any untrue statement or
prospectus or notification or offering circular (including any amendments or
supplements thereto) in reliance upon and in conformity with, information
furnished in writing to the Company by such indemnified party expressly for use
therein, and the Company and each officer, director and controlling person of
the Company shall be indemnified by Optionee, or by such underwriter, as the
case may be, for all such expenses, losses, claims, damages and liabilities
caused by any untrue, or alleged untrue, statement, that was included by the
Company in any such registration statement or prospectus or notification or
offering circular (including any amendments or supplements thereto) in reliance
upon, and in conformity with, information furnished in writing to the Company by
or on behalf of Optionee or such underwriter, as the case may be, expressly for
such use.
Promptly upon receipt by a party indemnified under this Section 8(e) of
notice of the commencement of any action against such indemnified party in
respect of which indemnity or reimbursement may be sought against any
indemnifying party under this Section 8(e), such indemnified party shall notify
the indemnifying party in writing of the commencement of such action, but the
failure so to notify the indemnifying party shall not relieve it or any
liability which it may otherwise have to any indemnified party under this
Section 8(e) except to the extent the indemnified party is materially prejudiced
thereby. In case notice of commencement of any
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such action shall be given to the indemnifying party as above provided, the
indemnifying party shall be entitled to participate in and, to the extent it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense of such action at its own expense, with counsel chosen by it and
reasonably satisfactory to such indemnified party. The indemnified party shall
have the right to employ separate counsel (other than reasonable costs of
investigation) shall be paid by the indemnified party unless (i) the indemnified
party either agrees to pay the same, (ii) the indemnifying party fails to assume
the defense of such action with counsel reasonably satisfactory to the
indemnified party, or (iii) the indemnified party has been advised by counsel
that one or more legal defenses may be available to the indemnifying party that
may be contrary to the interest of the indemnified party, in which case the
indemnifying party shall be entitled to assume the defense of such action
notwithstanding its obligation to bear fees and expenses of such counsel. No
indemnifying party shall be liable for any settlement entered into without its
consent, which consent may not be unreasonably withheld.
If the indemnification provided for in this Section 8(e) is unavailable
to a party otherwise entitled to be indemnified in respect of any expenses,
losses, claims, damages or liabilities referred to herein, then the indemnifying
party, in lieu of indemnifying such party otherwise entitled to be indemnified,
shall contribute to the amount paid or payable by such party to be indemnified
as a result of such expenses, losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative benefits received by the
Company, the Optionee and the underwriters from the offering of the securities
and also the relative fault of the Company, the Optionee and the underwriters in
connection with the statements or omissions which resulted in such expenses,
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The amount paid or payable by a party as a result of the
expenses, losses, claims, damages and liabilities referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any action or claim;
provided, however, that in no case shall Optionee be responsible, in the
aggregate, for any amount in excess of the net offering proceeds attributable to
its Optioned Shares included in the offering. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Any obligation by Optionee to contribute shall be
several and not joint with other holders.
In the event of an underwritten public offering pursuant to Section
8(b), the Company and the Optionee shall enter into an underwriting agreement
containing customary terms and provisions; provided that the contribution
provisions as they relate to Optionee shall contain substantially the same
limitations as the provisions set forth herein.
(f) Miscellaneous Reporting. The Company shall comply with all
reporting requirements and will do all other such things as may be necessary to
permit the expeditious sale at any time of any Optioned Shares by the Optionee
in accordance with and to the extent permitted by any rule or regulation
promulgated by the SEC from time to time, including, without limitation, Rule
144. The Company shall provide the Optionee with any information necessary in
connection with the completion and filing of any reports or forms required to be
filed by them under the Securities Act or the Exchange Act, or required pursuant
to any state securities laws or the rules of any stock exchange.
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(g) Issue Taxes. The Company will pay all stamp taxes in connection
with the issuance and the sale of Optioned Shares and in connection with the
exercise of the Option, and will hold the Optionee harmless, without limitation
as to time, against any and all liabilities, with respect to all such taxes.
9. Optional Put. Prior to the termination of the Option in accordance
with Section 11 hereof, if the Option has become exercisable pursuant to Section
1(b) hereof and pursuant to the second sentence of this Section 9, Optionee
shall have the right, upon three (3) business days' prior written notice to the
Company, to require the Company to purchase the Option from Optionee (the "Put
Right") at a cash purchase price (the "Put Price") equal to the product
determined by multiplying (A) the number of Optioned Shares as to which the
Option has not yet been exercised by (B) the Spread (as defined below). As used
herein, the term "Spread" shall mean the excess, if any, of (i) the greater of
(x) the highest price (in cash or fair market value of securities or other
property) per share of Company Common stock paid or to be paid within twelve
(12) months preceding the date of exercise of the Put Right for any Company
Common Stock beneficially owned by any Person who shall have acquired or become
the beneficial owner of 20% or more of the outstanding shares of Company Common
Stock after the date hereof or (y) the weighted (by volume of shares traded each
day during the measurement period described herein) average closing price of the
Company Common Stock during the 15-day period ending on the trading day
immediately preceding the written notice of exercise of the Put Right over (ii)
the Exercise Price. This Put Right shall become exercisable with respect to the
events described in clauses (A), (B), (C) and (D) of Section 2(a)(ii) hereof
only if the beneficial ownership by the Person or group referenced in such
clauses equals or exceeds 30% of the outstanding Company Common Stock. Upon
exercise of Optionee's right to receive cash pursuant to this Section 9, the
obligation of the Company to deliver Optioned Shares pursuant to this Agreement
shall terminate with respect to such number of Optioned Shares for which
Optionee shall have elected to be paid in cash under this Section 9.
10. Profit Limitation.
(a) Notwithstanding any other provision of this Agreement, in no
event shall Optionee's Total Profit (as hereinafter defined) exceed $43,000,000
and, if it otherwise would exceed such amount, Optionee, at its sole election,
shall either (i) deliver to the Company for cancellation Optioned Shares
previously acquired by Optionee pursuant to this Agreement, (ii) pay cash or
other consideration to the Company, or (iii) undertake any combination thereof,
in each case, so that Optionee's Total Profit shall not exceed $43,000,000 after
taking into account the foregoing actions.
(b) As used herein, the term "Total Profit" shall mean the sum
(before taxes) of the following: (i) the amount of cash received by Optionee
pursuant to Section 9 hereof, (ii)(A) the net cash amounts received by Optionee
pursuant to the sale of Optioned Shares (or any other securities into which such
Optioned Shares are converted or exchanged) to any unaffiliated party, less (B)
the aggregate Exercise Price paid for all Optioned Shares acquired by Optionee
hereunder, and (iii) any Termination Fee received pursuant to the Merger
Agreement.
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00. Termination. This Agreement and the Option shall terminate upon the
earlier of (i) the Effective Time (as defined in the Merger Agreement) and (ii)
the termination of the Merger Agreement in accordance with its terms; provided,
however, the Option shall terminate pursuant to clause (ii) nine (9) months
following termination of the Merger Agreement if (A) the Merger Agreement is
terminated by Optionee pursuant to Section 7.1(d)(i) or (d)(ii) thereof or (B)
the Merger Agreement is terminated by Optionee or the Company pursuant to
Section 7.1(b)(ii) or (b)(iv) thereof and, in each such case, the Company has
not paid to Optionee the Termination Fee which the Company is then obligated to
pay.
12. Expenses. Each party hereto shall pay its own expenses incurred in
connection with this Agreement, except as otherwise provided in Section 8 hereof
or as specified in the Merger Agreement.
13. Specific Performance. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement, without the
necessity of proving damages or posting any bond, and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
thereof having jurisdiction, this being in addition to any other remedy to which
they are entitled at law or in equity.
14. Notice. All notices, requests, demands and other communications
hereunder shall be deemed to have been duly given and made if in writing and if
served by personal delivery upon the party for whom it is intended or if sent by
telex or facsimile (with receipt electronically confirmed) to the person at the
address set forth below, or such other address as may be designated in writing
hereafter, in the same manner, by such person:
(a) if to Optionee:
ADC Telecommunications, Inc.
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx LLP
Pillsbury Center South
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
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(b) if to the Company:
PairGain Technologies, Inc.
00000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention:
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
15. Parties in Interest. This Agreement shall inure to the benefit of
and be binding upon the parties named herein and their respective successors and
permitted assigns. Nothing in this Agreement, expressed or implied, is intended
to confer upon any Person other than Optionee or the Company, or their permitted
successors or assigns any rights or remedies under or by reason of this
Agreement.
16. Entire Agreement; Amendments. This Agreement, together with the
Merger Agreement and the other documents referred to therein, constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous agreements and understandings, both
written or oral, between the parties with respect to the subject matter hereof.
This Agreement may not be changed, amended or modified orally, but only by an
agreement in writing signed by the party against whom any waiver, change,
amendment, modification or discharge may be sought.
17. Assignment. No party to this Agreement may assign any of its rights
or delegate any of its obligations under this Agreement (whether by operation of
law or otherwise) without the prior written consent of the other party hereto,
except that Optionee may, without a written consent and without affecting its
obligations hereunder, assign its rights and delegate its obligations hereunder
in whole or in part to one or more of its direct or indirect wholly owned
subsidiaries.
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00. Interpretation. The language used in this Agreement shall be deemed
to be the language chosen by the parties to express their mutual intent, and no
rule of strict construction shall be applied against any party. The headings of
articles and sections herein are for convenience of reference, do not constitute
a part of this Agreement, and shall not be deemed to limit or affect any of the
provisions hereof.
19. Counterparts. This Agreement may be executed via facsimile in two
or more counterparts, each of which, when executed, shall be deemed to be an
original and all of which together shall constitute one and the same document.
20. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of laws thereof.
21. Validity. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect. Upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties 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 extent possible.
22. Defined Terms. Capitalized terms which are used but not defined
herein shall have the meanings ascribed to them in the Merger Agreement.
* * * * *
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IN WITNESS WHEREOF, Optionee and the Company have caused this Stock
Option Agreement to be duly executed and delivered on the day and year first
above written.
PAIRGAIN TECHNOLOGIES, INC.
By: /s/ XXXXXXX X. XXXXXXX
----------------------------------
Xxxxxxx X. Xxxxxxx
Chairman of the Board of Directors
ADC TELECOMMUNICATIONS, INC.
By: /s/ XXXX XXXXX
----------------------------------
Xxxx Xxxxx
Senior Vice President,
President Broadband Access and
Transport Group
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