Exhibit 2.6
TERMINATION AGREEMENT
This Termination Agreement (this "Termination Agreement") is made as of
this 13th day of September, 1998, among Tellabs, Inc., a Delaware
corporation ("Parent") and CIENA Corporation, a Delaware corporation
(the "Company").
WHEREAS, Parent, White Oak Merger Corp., a Delaware corporation and a
direct wholly owned subsidiary of Parent ("Sub") and Company are parties
to that certain Agreement and Plan of Merger dated as of June 2, 1998,
as amended by the First Amendment to Agreement and Plan of Merger dated
as of August 27, 1998 (as so amended, the "Merger Agreement"); and
WHEREAS, the parties desire to terminate the Merger Agreement by mutual
consent as provided by Section 7.1 (a) of the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and agreements
contained herein and other good and valuable consideration, the receipt
and sufficiency of which the parties hereby acknowledge, the parties
hereto agree as follows:
1. Capitalized Terms. Except as otherwise defined or modified herein,
all capitalized terms used in this Termination Agreement shall have the
meanings set forth in the Merger Agreement.
2. Termination of Agreement. Effective immediately upon execution of
this Termination Agreement, the Merger Agreement is hereby terminated
pursuant to Section 7.1 (a) thereof, and the Stock Option Agreement is
hereby terminated pursuant to Section 19 thereof. All covenants,
undertakings, restrictions and limitations contained in all Company
Affiliate Letters, Parent Affiliate Letters, the Stockholder Agreement
dated as of August 27, 1998 between the Company and Xxxxxxx Xxxxx and
the Stockholder Agreements executed in connection with the Merger
Agreement (collectively with the Merger Agreement and the Stock Option
Agreement, the "Transaction Agreements") are also terminated and waived
and shall be of no further force and effect.
3. Survival of Confidentiality Agreement. Notwithstanding any
provisions of the Merger Agreement to the contrary, the provisions of
Sections 2.1, 2.4, 2.7 and 2.8 of the Confidentiality Agreement shall
survive the termination of the Merger Agreement, and each party will use
commercially reasonable efforts to promptly return all Evaluation
Material (as defined in the Confidentiality Agreement) relating to the
other party to the other party or destroy the same, as requested by the
other party, and will otherwise cooperate with the other party in taking
all reasonable steps necessary to carry out an orderly termination of
actions heretofore taken to carry out the transactions contemplated by
the Merger Agreement, provided, however, that if the Receiving Company
(as defined in the Confidentiality Agreement) reasonably determines that
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because of pending or threatened litigation or proceedings the return or
destruction of any such materials would not be appropriate, in lieu of
such return or destruction the Receiving Company may turn over any such
materials to its outside legal counsel (who shall maintain the
confidentiality thereof, use such materials only as reasonably necessary
in connection with such legal actions or proceedings and shall promptly
return or destroy such materials when the same are no longer reasonably
necessary for use in such legal action or proceedings).
4. Expenses. Except as otherwise provided in this Termination
Agreement, all costs and expenses incurred in connection with or
relating to this Termination Agreement, the Transaction Agreements or
the transactions contemplated hereby and thereby, including, without
limitation, the fees and disbursements of counsel, financial advisors
and accountants, shall be paid by the party incurring such costs and
expenses; provided, that all printing expenses and all filing fees
incurred by the parties prior to the date hereof in connection with the
Merger Agreement (including, without limitation, filing fees under the
Securities Act, the Exchange Act and the HSR Act) shall be divided
equally between Parent and the Company. Accordingly, all charges of
Xxxxx & Co. in connection with printing and distributing the
Registration Statement and the Joint Proxy Statement shall be borne 50%
by Parent and 50% by the Company.
5. Release and Waiver. Each of the parties hereto, for itself and its
subsidiaries, predecessors, successors and assigns, and for each of its
and their respective directors, officers, employees, agents and
attorneys acting as such (collectively, the "Releasing Persons"), does
hereby forever and unconditionally release, acquit and discharge each of
the other parties hereto, and each of their respective parents,
subsidiaries, stockholders, directors, officers, employees, agents,
attorneys and consultants, and the predecessors, successors and assigns
of each of them (collectively, the "Released Persons"), with all
Released Persons who are natural persons being so released, acquitted
and discharged in both their individual as well as their official
capacities, from any and all claims, controversies, covenants,
representations, warranties, demands, promises, contracts, agreements,
causes of action, suits, liabilities, obligations, debts or other
responsibility of whatever kind or nature, whether known or unknown,
whether in law or in equity, which the Releasing Persons ever had, now
have or may have against any Released Person for any matter, thing,
event, action or omission which in any way, directly or indirectly,
relates to or arises out of or is connected to the Transaction
Agreements, any of the transactions contemplated thereby, including,
without limitation by reason of or in connection with the termination of
the Transaction Agreements, or any other acts, facts, omissions,
transactions, occurrences or other subject matters relating thereto,
arising therefrom or in connection therewith; provided, however, that
nothing contained herein shall release any obligation under this
Termination Agreement or claim to enforce it.
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6. Amendments. This Agreement can be modified or amended only by a
writing signed by the parties hereto.
7. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, regardless of the
laws that might otherwise govern under applicable principles of
conflicts of laws thereof.
8. Enforcement. The parties hereto agree that irreparable damage would
occur in the event that any provisions of Section 3 of this Termination
Agreement were not performed in accordance with their specific wording
or were otherwise breached. It is accordingly agreed that the parties
hereto shall be entitled to an injunction or injunctions to prevent
breaches of Section 3 of this Termination Agreement and to enforce
specifically the terms and provisions of such Section 3 in any court of
the United States or any state having jurisdiction, such remedy being in
addition to any other remedy to which any party is entitled at law or in
equity.
9. Disclosure. Promptly following the execution hereof, Parent and the
Company shall issue the press releases in the forms attached hereto as
Exhibits A and B, respectively, or as otherwise agreed between the
parties prior to release.
10. Representations and Warranties. Each of the parties hereto
represents and warrants to the other that (a) it has all requisite power
and authority to enter into this Termination Agreement and (b) this
Termination Agreement constitutes the legal, valid and binding
obligation of such party and (assuming that this Termination Agreement
is the valid, binding and enforceable obligation of the other party) is
enforceable against it in accordance with its terms.
11. Execution in Counterparts. To facilitate execution, this Agreement
may be executed in as many counterparts as may be required; and it shall
not be necessary that the signatures of, or on behalf of, each party, or
that the signatures of all persons required to bind any party, appear on
each counterpart; but it shall be sufficient that the signature of, or
on behalf of, each party, or that the signatures of the persons required
to bind any party, appear on one or more of the counterparts. All
counterparts shall collectively constitute a single agreement. It shall
not be necessary in making proof of this Agreement to produce or account
for more than a number of counterparts containing the respective
signatures of, or on behalf of, all of the parties hereto.
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12. Entire Agreement. Except as set forth in Section 3 hereof with
respect to certain provisions of the Confidentiality Agreement, this
Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements
and understandings between the parties with respect thereto; including
without limitation, Section 7.2 of the Merger Agreement, the other
provisions of the Merger Agreement, all other Transaction Agreements and
the Confidentiality Agreement. Except for the provisions of Section 5
hereof, this Termination Agreement is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
IN WITNESS WHEREOF, the undersigned have executed this Termination
Agreement as of the date first above written.
TELLABS, INC.
By: s\ Xxxxxxx X. Xxxxx
--------------------
Xxxxxxx X. Xxxxx
President and Chief
Executive Officer
CIENA CORPORATION
By: s\ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx
President and Chief
Executive Officer
ACKNOWLEDGED AND AGREED:
WHITE OAK MERGER CORP.
By: s\ Xxxxxxx X. Xxxxx
--------------------
Xxxxxxx X. Xxxxx
President and Chief
Executive Officer
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EXHIBIT A
NEWS RELEASE
FOR IMMEDIATE RELEASE CONTACT: Xxxxxx X. Xxxxxxxx
09/14/98 (000) 000-0000
TELLABS AND CIENA AGREE TO TERMINATE MERGER
Lisle, Ill. -- Tellabs, Inc., and CIENA Corporation have announced they
will not proceed with their proposed merger. The companies mutually
agreed to terminate the merger and have entered into a termination
agreement approved by their respective Boards of Directors. Under terms
of the agreement, neither party will owe a break-up fee to the other.
Tellabs President and CEO Xxxxxxx X. Xxxxx said, "We continue to believe
that CIENA's products and technology would have provided a good fit with
Tellabs' business. However, in light of the changes in CIENA's
financial outlook and since required approval of the transaction by
Tellabs' shareholders is unlikely, we have therefore mutually agreed to
terminate the merger agreement. This decision does not change our
interest in optical-networking technology and markets as part of our
long-term strategy."
Tellabs designs, manufactures, markets and services voice and data
transport and access systems. The company's products are used worldwide
by the providers of communications services. Tellabs, Inc., stock is
listed on the Nasdaq Stock Market (TLAB).
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EXHIBIT B
FOR IMMEDIATE RELEASE
Press Contact: Xxxxx Xxxxxx
CIENA Corporation
(000) 000-0000
Investor Contact: Xxxxxxx XxXxxx
CIENA Corporation
(000) 000-0000
xx@xxxxx.xxx
CIENA Announces Mutual Termination of Proposed Merger With Tellabs
LINTHICUM, MD - September 14, 1998 - CIENA Corporation (NASDAQ: CIEN)
today announced that it has agreed to a mutual termination of its
planned merger with Tellabs.
The companies believe that investor reaction to events of the last
several weeks raised serious questions about the ultimate ability to
obtain shareholder approval for the merger and made it difficult to move
forward with the kind of momentum needed to realize shareholder value.
Therefore, the companies have agreed to part ways amicably. The terms
of the merger termination do not trigger break-up fees for either
company.
"While we are disappointed that our plans with Tellabs will not come to
fruition, we remain excited about our future as an independent entity,"
said Xxxxxxx Xxxxxxx, CIENA's President and Chief Executive Officer.
Xxxxxxx continued: "Over the short-term, CIENA will continue to face the
challenges associated with expanding our customer base, but the core
elements of our business remain strong:
1. Our market opportunity is large and growing as more carriers
turn to the economies and network scalability offered by DWDM and
as we identify and pursue new applications beyond long-distance
transport;
2. CIENA's technology leadership is evident - we are the only DWDM
vendor commercially shipping a 40-channel system with more than one
million channel kilometers installed for customers on three
continents - and we will work aggressively to leverage and expand
on that leadership position;
3. Our team's spirit is indomitable;
4. The balance sheet is strong with over $200 million in cash,
and:
5. We continue to grow our base of satisfied customers."
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NOTE TO INVESTORS:
Forward-looking statements in this release, including statements
regarding the anticipated dates to achieve different capacities on a
single strand of fiber optic cable and the limited availability of the
OC-192 interface in early 1999 are based on information available to the
Company as of the date hereof. The Company's actual results could
differ materially from those stated or implied by such forward-looking
statements, due to risks and uncertainties associated with the Company's
business. The forward-looking statements should be considered in the
context of risk factors disclosed in the Company's Quarterly Report on
Form 10-Q, as filed with the Securities and Exchange Commission on
September 14, 1998.
ABOUT CIENA
Based in Linthicum, Maryland, CIENA Corporation is a worldwide market
leader of open architecture, dense wavelength division multiplexing
(DWDM) systems for long-distance and local exchange carriers. Through
its Alta subsidiary, based in Norcross, GA, CIENA provides a range of
engineering, furnishing and installation (EF&I) services for
telecommunications service providers in the areas of transport,
switching and wireless communications.
Additional information about CIENA can be found on its World Wide
Website: xxx.xxxxx.xxx.
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