Exhibit 10.1
**-Certain information omitted and filed separately with the Commission pursuant
to a confidential treatment request under Rule 24b-2 of the Commission.
SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT dated as of February 4, 1998, between LUCENT
TECHNOLOGIES INC., a Delaware corporation, having offices at 000 Xxxxxxxx
Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000 ("Lucent"), and BROADBAND TECHNOLOGIES,
INC., a Delaware corporation, having offices at 0000 Xxxxxxx Xxxxx Xxxxx,
Xxxxxx, Xxxxx Xxxxxxxx 00000-0000 ("BBT").
Recitals
WHEREAS on November 1, 1995 the Parties entered into the SDV Agreement
pertaining to the development, supply and marketing of SDBAS Products or
Services (as defined herein); and
WHEREAS the Parties hereto desire to settle and finally resolve certain
disputes relating to the SDV Agreement (as defined herein), to avoid the further
risks, burden, expense and inconvenience of continuing with dispute resolution
procedures, and to alter the contractual relationships between the Parties.
NOW, THEREFORE, in consideration of the covenants and other terms set forth
herein, each of the Parties hereto on behalf of itself and its Related Parties
(as defined
2
herein), without any admission of liability, does hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.1. Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
"Agreement" means this Settlement Agreement including all exhibits and
attachments hereto.
"BBT" is defined in the heading of this Agreement.
"Effective Date" means the date set forth in the first paragraph of this
Agreement.
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*******
"First Amendment" means the First Amendment to Agreement
LGC-A65-D (known herein as the SDV Agreement) dated July 12, 1996, including all
exhibits and attachments thereto.
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*******
3
"Lucent" is defined in the heading of this Agreement.
"Parties" means the parties to this Agreement.
"Party" means a party to this Agreement.
"Related Parties" means, in respect of any Party, such Party's wholly owned
subsidiaries, and the respective divisions, heirs, successors and assigns of
such Party and its wholly owned subsidiaries.
"SDBAS Products or Services" and "SDBAS Products and Services"
means the products and services listed on Exhibit C.
"SDV Agreement" means the agreement between BBT and Lucent known as
Contract No. LGC-A65-D dated November 1, 1995, as amended from time to time, and
includes the First Amendment and attachments thereto.
SECTION 1.2. Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the words "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise, (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or
4
other document as from time to time amended, supplemented or otherwise modified,
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, and (d)
all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement.
ARTICLE II
Contractual Relationships
SECTION 2.1. Termination of SDV Agreement. Subject to the terms, conditions
and exceptions set forth herein, the Parties agree that the SDV Agreement hereby
is terminated. The parties agree that Lucent is in complete control of the
marketing strategy for SDBAS or SDBAS Products or Services. The Parties also
agree that except as otherwise provided herein or in the agreements in the forms
attached as Exhibits C-E and to be executed simultaneously with this Agreement,
going forward, neither BBT nor any BBT Related Party has, unless it receives
written permission from Lucent, the right, authority or entitlement to supply,
5
market or promote SDBAS or SDBAS Products or Services. Nothing in this Agreement
shall prevent BBT from supplying, marketing or promoting its FLX product, as
long as it does not do so as part of an overall SDBAS system or SDBAS offer.
SECTION 2.2. Termination of Certain Continuing Obligations Under the SDV
Agreement. The parties agree to terminate BBT's obligations to refund and/or pay
any moneys to Lucent pursuant to Section 8.2 or Article 21 of the First
Amendment. This Section shall not terminate any other continuing obligations
either BBT or Lucent has pursuant to the SDV Agreement.
SECTION 2.3. SDBAS Customers. Lucent has certain goals with respect to the
marketing, supply and sales of SDBAS and SDBAS Products and Services to existing
customers. Lucent has no obligation to BBT not to change, alter or otherwise
modify these goals. BBT hereby agrees to use its reasonable best efforts to
assist Lucent in achieving these goals, to cooperate fully with Lucent in
Lucent's efforts to achieve these goals, to take no steps antagonistic to
Lucent's efforts to achieve these goals and to take positive steps to assist
Lucent in achieving these goals as requested to do so by Lucent (all hereinafter
referred to as "BBT Efforts"); provided that the obligations of the Parties
hereunder shall be limited to acts which are consistent with applicable law and
the rights of customers. BBT's
6
obligations in the preceding sentence apply to Lucent's current goals and to any
changes, alterations or modifications in those goals that Lucent communicates to
BBT.
Subject to a cap of **********, BBT is responsible for: (1) paying its own
costs associated with BBT Efforts; and (2) reimbursing Lucent for Lucent's costs
associated with achieving these goals (subsections 1 and 2 collectively
"Customer Costs"). Customer Costs do not include any costs associated with
continued supply of SDBAS or SDBAS Products or Services to Customers in the
ordinary course of business, including but not limited to fulfilling obligations
under the agreement simultaneously executed in the form attached as Exhibit C.
Customer Costs do not include any costs for management time, although costs for
craft time are included. Any amounts that BBT expends on non-BBT equipment after
the effective date to satisfy its obligations to supply Material associated with
upgrades for use for existing customs pursuant to the second sentence of Section
24.02 of the SDBAS Supply Agreement simultaneously executed in the form attached
as Exhibit C shall count towards the above-mentioned *************** cap. BBT's
obligations under this Section do not terminate when and if the ************ cap
is reached, except that, in the event that this cap is reached, BBT is entitled
to reimbursement from Lucent for Customer
7
Costs incurred by BBT (those costs described in (1) above) and BBT has no
obligation to reimburse Lucent for Customer Costs incurred by Lucent (those
costs described in (2) above).
BBT agrees to cooperate fully with Lucent in fulfilling any obligations
Lucent may have to any of the existing customers with respect to SDBAS or SDBAS
Products and Services, and to sell Lucent SDBAS Products and Services pursuant
to an agreement in the form attached as Exhibit C.
SECTION 2.4. ***************. BBT agrees to use reasonable
best efforts to: cooperate fully with Lucent, take no steps antagonistic to
Lucent, and assist Lucent in resolving any issues, disputes, disagreements,
claims, complaints, actions or the like that may arise between Lucent and
************** concerning the FSN Contract ("**** ********* Dispute"). BBT is
responsible for: (1) paying its own costs associated with providing such
assistance and cooperation with respect to any *************** Dispute; and (2)
reimbursing Lucent for Lucent's costs associated with resolving or attempting to
resolve any ************* Dispute (subsections (1) and (2) collectively
"********************* Costs"). ******************** Costs do not include any
costs associated with continued supply of SDBAS or SDBAS Products or Services to
******************* in the ordinary course of business, including but not
limited to fulfilling
8
obligations under the Agreement simultaneously executed in the form attached as
Exhibit C. ************** Costs do not include any costs for management time,
although costs for craft time are included. BBT's responsibilities as set forth
above in this paragraph relating to ****************** Disputes shall be capped
at ************. BBT's obligations under this Section do not terminate when and
if the ******** ******** cap is reached, except that, in the event that this cap
is reached, BBT is entitled to reimbursement from Lucent for
********************* Costs incurred by BBT (those costs described in (1) above)
and BBT has no obligation to reimburse Lucent for ************** Costs incurred
by Lucent (those costs described in (2) above). Any amounts that BBT expends on
non-BBT equipment after the Effective Date to satisfy its obligations to supply
Material associated with upgrades for use for **************** pursuant to the
second sentence of Section 24.02 of the SDBAS Supply Agreement simultaneously
executed in the form attached as Exhibit C shall count towards the
above-mentioned *************** cap. Any amounts of the ************ of
prepayments made by **** *********** to BBT to be applied to contract BA-14494,
dated July 12, 1996, between **************** and BBT, that BBT is obligated to
refund to ************* shall count towards the above-mentioned *************
cap. Any portion of this **** ********* prepayment that BBT is obligated to
refund to ****
9
********* that would exceed the cap in light of other moneys BBT has already
expended or paid to Lucent that count towards this cap will be either: (1) paid
directly to ****** ********** by Lucent, or (2) reimbursed to BBT by Lucent, at
Lucent's choice.
If ***************** makes Alternative Performance Payments to Lucent
pursuant to the FSN Agreement that result in a net gain to Lucent after
subtraction of all *********** ********** Costs (not limited for purposes of
this paragraph to the cap), Lucent will pay 33 1/3% of any such net gain to BBT.
SECTION 2.5. BBT Release. Simultaneously with and as a condition of
execution of this Agreement, BBT will deliver to Lucent a release executed by
BBT in the form attached as Exhibit A.
SECTION 2.6. Lucent Release. Simultaneously with and as a condition of
execution of this Agreement, Lucent will deliver to BBT a release executed by
Lucent in the form attached as Exhibit B.
SECTION 2.7. SDBAS Supply Agreement. Simultaneously with and as a condition
of execution of this Agreement, the Parties will execute an Agreement in the
Form attached as Exhibit C.
10
SECTION 2.8. BBT OEM Supply Agreement. Simultaneously with and as a
condition of execution of this Agreement, the Parties will execute an agreement
in the form attached as Exhibit D.
SECTION 2.9. Lucent OEM Supply Agreement. Simultaneously with and as a
condition of execution of this Agreement, the Parties will execute an agreement
in the form attached as Exhibit E.
SECTION 2.10. Research and Development Agreement. Simultaneously with and
as a condition of execution of this Agreement, the Parties will execute an
agreement in the form attached as Exhibit F.
SECTION 2.11. Technology Transfer Agreement. Simultaneously with and as a
condition of execution of this Agreement, the Parties will execute an agreement
in the form attached as Exhibit G.
SECTION 2.12. Manufacturing Agreement. Simultaneously with and as a
condition of execution of this Agreement, the Parties will execute an agreement
in the form attached as Exhibit H.
SECTION 2.13. Element Manager Software Side Letter Agreement.
Simultaneously with and as a condition of execution of this Agreement, the
Parties will execute a side letter agreement in the form attached as Exhibit I.
11
SECTION 2.14. ************************************************************.
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Notwithstanding anything in this Agreement to the contrary, Lucent may seek
relief from breach or anticipatory breach of this Section 2.14 in any court of
competent jurisdiction. In addition, BBT consents to the non-exclusive
jurisdiction of the courts of the State of New Jersey and the federal courts
located in the State of New Jersey for actions brought by Lucent arising out of
breach or anticipatory breach of this Section 2.14, and BBT agrees to waive any
defense of improper or inconvenient venue in connection with any such action by
Lucent.
12
ARTICLE III
Representations and Warranties
SECTION 3.1. Each Party hereby represents and warrants to the other Party
as follows:
(a) Such Party, on advice of counsel, has duly considered the settlement
contemplated by this Agreement. This Agreement and the Releases, documents and
instruments to be executed on behalf of such Party and its Related Parties
hereunder have been duly authorized by all necessary action, including approved
by the Party's Board of Directors if necessary. This Agreement and each Release,
document and instrument simultaneously executed or delivered on behalf of such
Party or any of its Related Parties pursuant to Article II has been duly
executed and delivered by or on behalf of such Party and its applicable Related
Parties and constitute a legal, valid and binding obligation of such Party and
each such Related Party, as the case may be, enforceable in accordance with its
terms.
(b) The execution, delivery and performance by such Party and its Related
Parties of this Agreement and the Releases, documents and instruments to be
executed by or on behalf of such Party and its Related Parties pursuant to
Article II (i) do not require any consent or approval of, or other action by any
governmental authority, except such as has already been obtained, and will be in
full force and
13
effect as of the Effective Date, and (ii) do not violate any applicable law or
regulation or the charter, bylaws or other organizational documents of such
Party or any of its Related Parties.
(c) The execution and delivery of this Agreement by such Party duly binds
and commits all its Related Parties.
ARTICLE IV
Miscellaneous
SECTION 4.1 Notices. Any notice or demand which under the terms of this
Agreement or under any statute must or may be given or made by BBT or Lucent
shall be in writing and shall be given or made by confirmed facsimile, or
similar communication or by commercial courier or by certified or registered
mail addressed to the respective Parties as follows:
To Lucent:
Lucent Technologies Inc.
00 Xxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Access Product Management Vice
President
with a copy to:
Lucent Technologies Inc.
000 Xxxx Xxxxxx Xxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Corporate Counsel-Switching
and Access
14
To BBT:
BroadBand Technologies, Inc.
X.X. Xxx 00000
0000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxx Xxxxxxxx 00000-0000
ATTN: Chief Financial Officer
with a copy to:
Xxxxx X. Xxxxxxxx, Esq.
Xxxxxxxxxx Xxxxxxxx LLP
X.X. Xxx 000000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
The effective dates of such notice shall be (i) upon evidence of successful
facsimile transmission, or (ii) five days following the date mailed for
certified or registered letters or (iii) when delivered, if in person or by
commercial courier. The above addresses may be changed at any time by giving
prior written notice as above provided.
SECTION 4.2. No Admissions. This Agreement is a compromise and nothing
herein shall be deemed or construed to be an admission or concession of any
liability whatever on the part of any Party or Person.
SECTION 4.3. Waivers; Amendments. (a) No failure or delay by either Party
in exercising any right or power hereunder shall operate as a waiver thereof,
nor shall any single exercise of any such right or power or any discontinuance
of steps to enforce any such right or power preclude the further exercise
thereof.
15
(b) Neither this Agreement nor any provision hereof may be waived, modified
or amended except pursuant to an agreement or agreements in writing entered into
by (i) in the case of a waiver, the Party against whom such waiver is to apply,
or (ii) in the case of a modification or amendment, each Party.
SECTION 4.4. Remedies for Breach. In the event that any Party breaches any
of its obligations under this Agreement, the other Party is entitled to specific
performance, injunctive relief and any damages resulting from that breach.
SECTION 4.5. Parties Bound. The provisions of this Agreement and the
Releases executed and delivered hereunder shall be binding upon the Parties and
their respective Related Parties. Each Party agrees to take such action as shall
be necessary to bind each of its Related Parties intended to be bound as
provided in this Section 4.5. and to secure the observance of this Agreement and
such Releases by each such Related Party.
SECTION 4.6. Confidentiality. Each Party agrees that it will not disclose
the contents of this Agreement or any Release or other Exhibit hereto to any
other Person, and agrees that it will maintain in confidence the terms and
conditions of this Agreement and the Releases and other Exhibits hereto, except:
(a) to the extent necessary to
16
comply with law or the valid order of a court of competent jurisdiction or of a
state or federal regulatory authority; (b) to comply with governmental
disclosure requirements, including U.S. Securities and Exchange Commission
requirements (on written advice of counsel that such disclosure is necessary or
prudent to avoid liability); (c) to the extent necessary to comply with a civil
investigative demand issued by the United States Department of Justice or with
the Xxxx-Xxxxx-Xxxxxx Act or any second request thereunder; (d) to satisfy tax
authorities, including the U.S. Internal Revenue Service; (e) to the extent
necessary in connection with any action, suit or proceeding to enforce this
Agreement or any Release; or (f) to their respective subsidiaries and affiliated
companies, their banks, auditors, accountants, lawyers, or any other
representative of a Party who has a good faith need to know, provided that in
each case the Person to whom disclosure is made pursuant to this clause (f) is
advised of the confidentiality of the information disclosed and agrees to keep
such information confidential; (g) to the extent set forth in Section 4.7 below;
(h) by mutual agreement of the Parties; and (i) disclosure of the versions of
each of Exhibits C-I that are executed contracts shall be governed by the
disclosure provisions contained within that contract, although any relationship
of any of those contracts to this
1
17
Agreement or to each other can only be disclosed in accordance with the
requirements of this Agreement. In the event of proposed disclosure pursuant to
clause (a) or (c) above, the Party proposing to make such disclosure (i) shall
give the other Party as much notice as is practicable of the proposed
disclosure, (ii) shall cooperate (at its own expense) with any attempt by such
other Party to obtain a protective order or other confidential treatment for the
information so disclosed and (iii) shall only disclose such information as is
legally required to be disclosed. In the event of disclosure to clause (b)
above, subsection (i) and (ii) shall apply. BBT agrees that, prior to any filing
pursuant to SEC regulations, BBT will afford Lucent the opportunity to require
BBT to request confidential treatment of specific portions of such agreements
and BBT shall comply with such reasonable requests of Lucent. The Parties
understand that BBT does not guarantee that the SEC shall grant such
confidentiality requests.
SECTION 4.7. Publicity. Neither Party shall make a public announcement or
issue a press release concerning the subject matter of this Agreement without
obtaining the prior written consent of the other Party. As soon as practicable
following execution of this Agreement, the Parties shall make a joint press
release that is mutually acceptable to the Parties. Furthermore, neither
2
18
Party shall publish or use advertising, sales promotions or publicity material
wherein the other Party's name or marks are mentioned, or relating to the other
Party's products, without such other Party's prior written consent. Nothing in
this Section is meant to limit a Party's rights and obligations under Section
4.6.
SECTION 4.8. Use of Agreement. Neither this Agreement nor evidence of any
negotiations in connection with it shall be offered or received in evidence or
used in any way at any trial, arbitration or other action or proceeding between
or among the Parties except to enforce the terms and provisions hereof. The
Parties agree that this Agreement and evidence of any negotiations in connection
with it shall not be offered or received in evidence or used in any way at any
trial, arbitration or other action between or among the Parties relating to or
arising out of the agreements separately executed by the Parties in the forms
attached to this Agreement as Exhibits C, D, E, F, G, H and I. The parties also
agree that under no circumstances will a breach of or any dispute arising out of
or relating to any or all of the agreements separately executed by the Parties
in the forms attached to this Agreement as Exhibits C, D, E, F, G, H and I
invalidate or otherwise cause not to be effective the Releases separately
3
19
executed by the Parties in the forms attached as Exhibits A and B.
SECTION 4.9. Survival. All covenants, agreements, representations and
warranties made by each Party herein and in the Releases or other instruments
executed and delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other Party hereto and shall survive
the execution and delivery of this Agreement and the Releases and Exhibits
hereto.
SECTION 4.10. Counterparts; Integration; Effectiveness. This Agreement may
be executed in two or more counterparts, each of which shall be deemed an
original, but all of which when taken together shall constitute one and the same
instrument. Except as otherwise agreed in writing by the Parties hereto, this
Agreement and the Releases to be executed pursuant to this Agreement constitute
the entire contract between the Parties relating to the subject matter thereof
and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter thereof. This Agreement shall become
effective when counterparts hereof which, when taken together, bear the
signatures of each of the Parties, have been executed and delivered. Delivery of
an executed counterpart of a signature page of this Agreement by
20
telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 4.11. Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New Jersey without
regard to its conflicts of law principles and laws.
SECTION 4.12. Restriction of Benefit. This Agreement is only intended to
benefit the Parties and their respective successors and assigns and shall not be
construed to confer rights on any third parties, except that (1) the Releases
executed in the forms attached as Exhibits A and B are intended to benefit the
Releasees listed therein; and (2) the indemnification obligations in Sections
4.15 and 4.16 are intended to benefit the Indemnified Parties as defined in
those Sections.
SECTION 4.13. Dispute Resolution. (a) The following procedures shall apply
to any dispute or disagreement between the Parties or any of their Related
Parties arising out of this Agreement or either of the Releases executed
pursuant to this Agreement. Any disputes arising out of any of the agreements
executed simultaneously with this Agreement in the forms attached as Exhibits C,
D, E, F, G, H and I shall be governed by the dispute resolution provisions
contained in the particular agreement at issue.
21
(b) First:
(i) either Party may give written notification of such dispute or
disagreement to the other Party; and
(ii) the Parties shall communicate with each other promptly with a
view to resolving such dispute or disagreement within twenty-one (21) days
(or such extended period as the Parties agree is appropriate in any case)
after such written notification is given.
(c) The giving of any notice regarding any dispute or disagreement under
this Section 4.13 shall toll the running of all applicable statutes of
limitation until the later of (i) ninety (90) days following the giving of such
notice or (ii) thirty (30) days following the termination of discussions between
the Parties concerning such dispute or disagreement.
(d) Second, if at the end of the twenty-one (21) day period referenced in
Section 4.13(b) (as it may be extended) such dispute or disagreement has not
been resolved to the satisfaction of both parties, either Party may request in
writing that such dispute or disagreement be the subject of non-binding
mediation. Following such request, the Parties shall endeavor in good faith
promptly to identify a single person (who shall be a person with experience and
good reputation) who shall assist the Parties
22
in discussing such dispute or disagreement and in attempting to reach a mutually
acceptable business resolution. Such mediation process shall terminate not later
than thirty (30) days following the request therefor (or such extended or
shorter period as the Parties agree is appropriate). All applicable statutes of
limitation shall be tolled during the period of mediation.
(e) Third, if at the end of the thirty (30) day period referenced in
Section 4.13(d) (as it may be extended or shortened) such dispute or
disagreement has not been resolved to the satisfaction of both parties, either
Party (the "complainant") may commence binding arbitration by giving the other
Party (the "respondent") notice in writing (the "initiating notice") setting
forth in reasonable detail the nature of its claim and the relief requested
stating that the complainant is invoking the procedures set forth in this
Section 4.13(e) and (f) and naming the complainant's representative on the
Arbitration Panel (as defined below). Within 21 days of receipt of an initiating
notice, the respondent shall give the complainant notice in writing (the
"response") setting forth in reasonable detail: (1) the basis of its response to
the claim; (2) the nature of any counterclaim it has against the complainant
arising from the same set of facts and circumstances that gave rise to the
original claim; (3) any other counterclaim that Party wishes
23
to bring at that time (although the Party has no obligation to bring such
counterclaims at that time); (4) the relief requested; and (5) naming the
respondent's representative on the Arbitration Panel. The two representatives
shall select a third person who is mutually acceptable to them. If the
representatives fail to make such selection within twenty-one (21) days, the
complainant and the respondent shall each replace its representative with a new
representative and the new representatives shall be subject to the preceding
sentence and this sentence. Once a third person is selected, such person
together with the representatives of the complainant and the respondent shall
form the Arbitration Panel. The date upon which the Arbitration Panel is formed
shall be the "Commencement Date".
(f) The Arbitration Panel shall conduct proceedings to determine the merits
under applicable law of the claims set forth in the initiating notice and the
response. The proceedings shall be administered by JAMS/Endispute in accordance
with its Comprehensive Arbitration Rules and Procedures in effect as of the
Effective Date, subject to the following additional rules:
(i) the proceedings shall take place in New York City;
(ii) the Arbitration Panel (including, if necessary, any
replacement(s) to the Arbitration Panel)
24
shall be selected as set forth in Section 4.13(e);
(iii) the available relief shall include damages, injunctive relief
and equitable relief to the extent allowed under the applicable law, this
Agreement and any other agreement between the parties;
(iv) the parties shall attempt in good faith promptly to agree on the
nature and extent of any discovery in connection with the arbitration,
provided that, in the absence of such agreement, discovery shall be
governed by JAMS/Endispute's Comprehensive Arbitration Rules and
Procedures. In addition, the applicable law with respect to privilege and
other protections from disclosure, including the work product doctrine
shall apply;
(v) the final decision of the Arbitration Panel (the "Award") shall be
issued within six months of the Commencement Date (the date of issuance of
the Award being the "Award Date") and must be joined by at least two
members of the Arbitration Panel;
(vi) each party to the proceedings shall pay its own costs in
connection with the proceedings, including the costs and expenses of its
representative on the Arbitration Panel, and the parties shall share
equally the other costs of the proceedings, including the fees of the third
member of the Arbitration Panel, except
25
that the prevailing party shall be entitled to recover its attorneys' fees
incurred in prosecution thereof.
(g) In accordance with the Federal Arbitration Act, 9 U.S.C. ss. 1 et seq.,
the Award shall be final and binding and judgment thereon may be entered by any
state or federal court having jurisdiction thereof.
(h) Nothing in this Section 4.13 shall be construed to preclude either
party from seeking injunctive declaratory or other provisional relief in a court
of competent jurisdiction to prevent imminent irreparable harm. The dispute
resolution procedures set forth herein shall be stayed pending disposition of
any application for such relief. The Parties agree that a court of competent
jurisdiction may consider the merits of any claim that is subject to the dispute
resolution procedures set forth herein to the extent necessary to resolve any
permissible application for injunctive declaratory or other provisional relief.
SECTION 4.14. Compliance with Law. Nothing in this Agreement shall obligate
a Party to act in violation of any applicable legal requirement or prohibition.
To the extent that any provision of this Agreement may be construed at any time
to impose such an obligation upon a Party, that provision shall be deemed
modified insofar as necessary (but only to the least extent necessary) to
relieve the Party of
26
such obligation and to allow the Party to comply in full with all applicable
legal requirements or prohibitions.
SECTION 4.15. Lucent Indemnification. At BBT's request, Lucent agrees to
indemnify, defend and hold harmless BBT, its wholly owned subsidiaries, their
respective officers, directors, employees, shareholders, agents and attorneys
and the respective heirs, executors, administrators, successors or assigns of
each of the foregoing (separately and collectively for the purposes of this
Section an "Indemnified Party") from and against any losses, damages, claims,
fines, penalties and expenses (including but not limited to attorney and expert
fees) that arise out of or result from any actions, complaints, causes of
action, demands, suits or claims, in law or in equity, brought against an
Indemnified Party by any officer, director or employee or former officer,
director or employee of Lucent or any of its subsidiaries or divisions relating
to or arising out of the relationship between Lucent and BBT prior to the
Effective Date.
SECTION 4.16. BBT Indemnification. At Lucent's request, BBT agrees to
indemnify, defend and hold harmless Lucent, its wholly owned subsidiaries, their
respective officers, directors, employees, shareholders, agents and attorneys
and the respective heirs, executors, administrators, successors or assigns of
each of the
27
foregoing (separately and collectively for the purposes of this Section an
"Indemnified Party") from and against any losses, damages, claims, fines,
penalties and expenses (including but not limited to attorney and expert fees)
that arise out of or result from any actions, complaints, causes of action,
demands, suits or claims, in law or in equity, brought against an Indemnified
Party by any officer, director or employee or former officer, director or
employee of BBT or any of its subsidiaries or divisions relating to or arising
out of the relationship between Lucent and BBT prior to the Effective Date.
IN WITNESS WHEREOF, LUCENT and BBT have caused this Agreement to be
executed by their duly authorized officers.
LUCENT TECHNOLOGIES INC.,
By
Date:_____________________________ ____________________________________
BROADBAND TECHNOLOGIES, INC.
By
Date:_____________________________ ____________________________________
28
EXHIBIT A
BROADBAND TECHNOLOGIES, INC.
RELEASE AND COVENANT NOT TO XXX
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT
BROADBAND TECHNOLOGIES, INC., a Delaware corporation ("BBT"), on behalf of
itself, its divisions, heirs, successors and assigns, its wholly owned
subsidiaries and their respective divisions, heirs, successors and assigns, and
all other persons that BBT has the power and authority to bind through its
execution of this Release and Covenant Not to Xxx (herein, separately and
collectively, the "Releasors"), in consideration of good and valuable
consideration received from Lucent Technologies Inc., a Delaware corporation
("Lucent"), the receipt and sufficiency of which is hereby acknowledged, hereby
release, acquit and forever discharge Lucent, Lucent's predecessor AT&T (to the
extent Lucent has assumed any liabilities or obligations of AT&T), each of
Lucent's wholly owned subsidiaries, each of the above's respective officers,
directors, employees, shareholders, agents and attorneys and the respective
heirs, executors, administrators, successors and assigns of each of the
foregoing (herein, separately and collectively, the
29
"Releasees"), from any and all actions, complaints, causes of action, demands,
damages, costs and expenses, liabilities, suits and claims, in law or in equity,
whether now known or unknown, whether asserted or unasserted (collectively
"Claims") which the Releasors ever had, now have, or hereinafter can, shall or
may have from the beginning of the world to the date of this Release
(hereinafter collectively referred to as the "Released Claims").
BBT represents and warrants that it has duly considered, approved and
authorized this Release and Covenant Not To Xxx, has taken all necessary actions
for this Release and Covenant Not To Xxx to be valid and binding and warrants
that the execution of this Release and Covenant Not To Xxx by the undersigned on
behalf of BBT duly binds and commits all Releasors.
Releasors covenant and agree that they will forever refrain from
instituting, reinstating, maintaining or prosecuting any action or proceeding
against Releasees upon any Claims, whether or not now or hereafter known,
suspected or claimed which Releasors ever had, now have or hereafter can, shall
or may have or allege against Releasees on account of any of the Released
Claims.
30
Notwithstanding Section 1542 of the California Civil Code, which provides:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with the
debtor,"
this Release and Covenant Not to Xxx shall constitute a full release in
accordance with its terms. BBT knowingly and voluntarily waives the provisions
of Section 1542, if applicable, and any provisions of similar effect in the law
of the State of Minnesota or federal law or statutes, if applicable, and
acknowledges and agrees that this waiver is an essential part of this Release
and Covenant Not To Xxx. BBT further acknowledges that this Release and Covenant
Not To Xxx has been negotiated and agreed to in light of such possible damages,
losses, fees, costs or expenses and that BBT took that into account in agreeing
to execute this Release and Covenant Not To Xxx.
Releasors represent and warrant that Releasors have not sold, assigned,
transferred, conveyed or otherwise disposed of any claim, demand or cause of
action or any part thereof relating to any matter covered by this Release and
Covenant Not To Xxx and agree to indemnify Releasees against any and all claims
by third persons resulting from any such sale, assignment, transfer, conveyance
or other disposition.
31
This Release and Covenant Not To Xxx shall not be altered or modified in
any way except by written consent of authorized representatives of Releasors and
Releasees.
This Release and Covenant Not To Xxx shall be governed by the laws of the
State of New Jersey.
IN WITNESS WHEREOF, RELEASORS have caused this Release to be executed by
their duly authorized agent as of February 4, 1998.
BROADBAND TECHNOLOGIES, INC.
------------------------------------
Xxxxx X. Xxx
President
32
EXHIBIT B
LUCENT TECHNOLOGIES INC.
RELEASE AND COVENANT NOT TO XXX
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT LUCENT
TECHNOLOGIES INC., a Delaware corporation ("Lucent"), on behalf of itself, its
divisions, heirs, successors and assigns, its wholly owned subsidiaries and
their respective divisions, heirs, successors and assigns and all other persons
that Lucent has the power and authority to bind through its execution of this
Release and Covenant Not to Xxx (herein separately and collectively the
"Releasors"), in consideration of good and valuable consideration received from
BroadBand Technologies, Inc., a Delaware corporation ("BBT"), the receipt and
sufficiency of which is hereby acknowledged, hereby release, acquit and forever
discharge BBT, each of BBT's wholly owned subsidiaries, each of the above's
respective officers, directors, employees, shareholders, agents and attorneys
and the respective heirs, executors, administrators, successors and assigns of
each of the foregoing (herein, separately and collectively, the "Releasees"),
from any and all actions, complaints, causes of action, demands, damages, costs
and expenses, liabilities, suits and claims, in law or in equity, whether now
known or unknown, whether asserted or
33
unasserted (collectively "Claims") which the Releasors ever had, now have, or
hereinafter can, shall or may have from the beginning of the world to the date
of this Release (hereinafter collectively referred to as the "Released Claims").
Lucent represents and warrants that it has duly considered, approved and
authorized this Release and Covenant Not To Xxx, has taken all necessary actions
for this Release and Covenant Not To Xxx to be valid and binding and warrants
that the execution of this Release and Covenant Not To Xxx by the undersigned on
behalf of Lucent duly binds and commits all Releasors.
Releasors covenant and agree that they will forever refrain from
instituting, reinstating, maintaining or prosecuting any action or proceeding
against Releasees upon any Claims, whether or not now or hereafter known,
suspected or claimed which Releasors ever had, now have or hereafter can, shall
or may have or allege against Releasees on account of any of the Released
Claims.
Notwithstanding Section 1542 of the California Civil Code, which provides:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with the
debtor,"
34
this Release and Covenant Not to Xxx shall constitute a full release in
accordance with its terms. Lucent knowingly and voluntarily waives the
provisions of Section 1542, if applicable, and any provisions of similar effect
in the law of the State of Minnesota or federal law or statutes, if applicable,
and acknowledges and agrees that this waiver is an essential part of this
Release and Covenant Not To Xxx. Lucent further acknowledges that this Release
and Covenant Not To Xxx has been negotiated and agreed to in light of such
possible damages, losses, fees, costs or expenses and that Lucent took that into
account in agreeing to execute this Release and Covenant Not To Xxx.
Releasors represent and warrant that Releasors have not sold, assigned,
transferred, conveyed or otherwise disposed of any claim, demand or cause of
action or any part thereof relating to any matter covered by this Release and
Covenant Not To Xxx and agree to indemnify Releasees against any and all claims
by third persons resulting from any such sale, assignment, transfer, conveyance
or other disposition.
This Release and Covenant Not To Xxx shall not be altered or modified in
any way except by written consent of authorized representatives of Releasors and
Releasees.
This Release and Covenant Not To Xxx shall be governed by the laws of the
State of New Jersey.
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IN WITNESS WHEREOF, RELEASORS have caused this Release to be executed by
their duly authorized agent as of February 4, 1998.
LUCENT TECHNOLOGIES INC.
-----------------------------
Xxxxx X. Xxxxxxxx
Product Marketing &
Management Vice President
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