WARRANT ASSUMPTION AGREEMENT
EXHIBIT
10.8
THIS
WARRANT ASSUMPTION AGREEMENT (the “Assumption
Agreement”) dated as of January 26, 2007, by and between XXXXXX STRATEX NETWORKS, INC., a corporation incorporated in the State of
Delaware (“Newco”), and STRATEX NETWORKS, INC., a corporation incorporated in the State of
Delaware (“Stratex”), is made and delivered pursuant to Section 6 of those certain
Warrants to Purchase Common Stock of Stratex (the “Warrants”) issued in connection with the
Purchase Agreement dated as of September 21, 2004 by and between Stratex and certain Investors
listed in Schedule I attached thereto. All capitalized terms used in this Assumption
Agreement and not otherwise defined herein shall have the meanings assigned to them in the
Warrants.
Pursuant
to an Amended and Restated Formation, Contribution and Merger
Agreement, dated December 18, 2006, among Xxxxxx Corporation,
Stratex, Newco and Stratex Merger Corp., as amended by that certain
letter agreement, dated January 26, 2007 (the
“Combination Agreement”), among the parties thereto, Stratex will merge into a
wholly-owned subsidiary of Newco (the “Merger”). In the Merger, each outstanding share,
par value $0.01 per share, of Stratex Common Stock (the “Stratex Common Stock”) will be
converted into one-fourth of a share, par value $0.01 per share, of Class A Common Stock of Newco
(the “Class A Common Stock”). Under the terms of the Combination Agreement, Newco has
agreed to enter into this Assumption Agreement pursuant to which it will assume Stratex’s
obligations under the Warrants.
Effective upon the effective time of the Merger,
(i) Stratex shall be released from its obligations under the Warrants.
(ii) Newco hereby assumes the obligations of Stratex under the Warrants and agrees that it
shall be the “Company” for all purposes of the Warrants. Without limiting the foregoing, the
undersigned hereby agrees to perform all of the obligations of the Company under, and to be bound
in all respects by the terms of, the Warrants, to the same extent and with the same force and
effect as if the undersigned were an original signatory thereto. At the effective time of the
Merger, pursuant to the terms and subject to the conditions contained in the Warrants, each Warrant
shall automatically become exercisable for that number of shares of Class A Common Stock equal to
one-fourth of the number of shares of Stratex Common Stock issuable upon exercise of such Warrant
immediately prior to the effective time of the Merger at an exercise price per share of Class A
Common Stock equal to four (4) times the exercise price of such Warrant per share of Stratex Common
Stock immediately prior to the effective time of the Merger, or $11.80 per share of Class A Common
Stock.
Upon the execution and delivery of this Assumption Agreement by Stratex and Newco, the terms
of the Warrants shall be supplemented in accordance herewith, and this Assumption Agreement shall
form a part of the terms of the Warrants for all purposes, and every Registered Holder of a Warrant
heretofore countersigned and delivered shall be bound hereby.
Except as expressly amended and supplemented hereby, the terms of the Warrants are in all
respects ratified and confirmed and all terms, conditions and provisions of the Warrants shall
remain in full force and effect.
This Assumption Agreement is an agreement supplemental to and in implementation of the terms
of the Warrants, and the terms of the Warrants, and this Assumption Agreement shall be read and
construed together.
Any notice or demand authorized or permitted by the terms of the Warrants to be given or made
by the Registered Holder of any Warrants to or on Newco shall be sufficiently given or made when
and if deposited in the mail, first class or registered, postage prepaid, addressed (until another
address is provided to the Registered Holders in writing by Newco), as follows:
Xxxxxx Stratex Networks, Inc.
Research Triangle Park
000 Xxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attn: General Counsel
fax: (000) 000-0000
Research Triangle Park
000 Xxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attn: General Counsel
fax: (000) 000-0000
All covenants and agreements in this Assumption Agreement by Newco shall bind and incur to the
benefit of its successors and assigns, whether so expressed or not.
This Assumption Agreement shall be deemed to be a contract made under the laws of the State of
New York and for all purposes shall be governed by and construed in accordance with the internal
laws of said state. The parties hereto irrevocably consent to the jurisdiction of the courts of
the state of New York and any federal court located in such state in connection with any action,
suit or proceeding arising out of or relating to this Assumption Agreement.
Nothing in this Assumption Agreement shall be construed to give to any person other than
Newco, Stratex and the Registered Holders of the Warrants any legal or equitable right, remedy or
claim under this Assumption Agreement; but this Assumption Agreement shall be for the sole and
exclusive benefit of Newco, Stratex and the Registered Holders of the Warrants.
This Assumption Agreement may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument.
-2-
IN WITNESS WHEREOF, the undersigned have executed this Assumption Agreement, as of the date
first above written.
| XXXXXX STRATEX NETWORKS, INC. |
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| By: | /s/ Xxx X. Xxxxxxxx | |||
| Name: | Xxx X. Xxxxxxxx | |||
| Title: | Chief Executive Officer and President | |||
| STRATEX NETWORKS, INC. |
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| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Senior Vice President and Chief Financial Officer | |||
