Exhibit 2.3
STOCK OPTION AGREEMENT, dated as of November 12, 2000 (the
"Agreement"), between Western Multiplex Corporation, a Delaware corporation
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("Grantee"), and Adaptive Broadband Corporation, a Delaware corporation
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("Issuer").
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RECITALS
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Grantee and Issuer are, concurrently with the execution and delivery
of this Agreement, entering into an Agreement and Plan of Merger, dated as of
the date hereof (the "Merger Agreement;" capitalized terms used without
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definition herein having the meanings assigned to them in the Merger Agreement),
pursuant to which the parties will engage in a business combination (the
"Merger"); and
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As a condition to its willingness to enter into the Merger Agreement,
Grantee has required that Issuer agree, and believing it to be in the best
interests of Issuer, Issuer has agreed, among other things, to grant to Grantee
the Option (as hereinafter defined) to purchase shares of common stock, par
value $.10 per share, of Issuer ("Issuer Common Stock") at a price per share
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equal to the Exercise Price (as hereinafter defined), and concurrently, Grantee
has granted a stock option to Issuer on substantially similar terms.
AGREEMENT
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NOW THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements herein contained, and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
OPTION TO PURCHASE SHARES
1.1 Grant of Option.
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(a) Issuer hereby grants to Grantee an irrevocable option to
purchase, in whole or in part, an aggregate of up to 7,502,021 duly authorized,
validly issued, fully paid and nonassessable shares of Issuer Common Stock
(representing 19.9% of the outstanding shares of Issuer Common Stock as of
October 31, 2000) on the terms and subject to the conditions set forth herein
(the "Option"); provided, however, that in no event shall the number of shares
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of Issuer Common Stock for which this Option is exercisable exceed 19.9% of the
issued and outstanding shares of Issuer Common Stock at the time of exercise
without giving effect to the issuance of any Option Shares (as hereinafter
defined). The number of shares of Issuer Common Stock that may be received upon
the exercise of the Option and the Exercise Price are subject to adjustment as
herein set forth.
(b) In the event that any additional shares of Issuer Common
Stock are issued or otherwise become outstanding after the date of this
Agreement (other than pursuant to this Agreement and other than pursuant to an
event described in Section 3.1 hereof), the number of shares of Issuer Common
Stock subject to the Option shall be increased so that, after such
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issuance, such number together with any shares of Issuer Common Stock previously
issued pursuant hereto, equals 19.9% of the number of shares of Issuer Common
Stock then issued and outstanding without giving effect to any shares subject or
issued pursuant to the Option. Nothing contained in this Section 1.1(b) or
elsewhere in this Agreement shall be deemed to authorize Issuer to breach or
fail to comply with any provision of the Merger Agreement. As used herein, the
term "Option Shares" means the shares of Issuer Common Stock issuable pursuant
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to the Option, as the number of such shares shall be adjusted pursuant to the
terms hereof.
1.2 Exercise of Option.
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(a) The Option may be exercised by Grantee, in whole or in part,
at any time, or from time to time, commencing upon the Exercise Date and prior
to the Expiration Date. As used herein, the term "Exercise Date" means the date
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on which Grantee becomes unconditionally entitled to receive a termination fee
pursuant to Section 7.2(b) of the Merger Agreement (the "Adaptive Termination
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Fee"). As used herein, the term "Expiration Date" means the first to occur
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prior to Grantee's exercise of the Option pursuant to Section 1.2(b) of:
(i) the Effective Time;
(ii) written notice of termination of this Agreement by
Grantee to Issuer;
(iii) 12 months after the first occurrence of an Exercise
Date; or
(iv) the date of termination of the Merger Agreement,
unless, in the case of this clause (iv), Grantee has the right to receive
the Adaptive Termination Fee either (x) upon or (y) following such
termination upon the occurrence of certain events, in which case the Option
will not terminate until the later of (x) 15 business days following the
time the Adaptive Termination Fee becomes unconditionally payable and (y)
the expiration of the period referred to in Section 7.2(b)(A)(III) of the
Merger Agreement.
Notwithstanding the termination of the Option, Grantee shall be entitled to
purchase those Option Shares with respect to which it may have exercised the
Option by delivery of an Option Notice (as defined below) prior to the
Expiration Date, and the termination of the Option will not affect any rights
hereunder which by their terms do not terminate or expire prior to or at the
Expiration Date.
(b) In the event Grantee wishes to exercise the Option, Grantee
shall send a written notice to Issuer of its intention to so exercise the Option
(an "Option Notice"), specifying the number of Option Shares to be purchased
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(and the denominations of the certificates, if more than one), whether the
aggregate Exercise Price will be paid in cash or by surrendering a portion of
the Option in accordance with Section 1.3(b) or a combination thereof, and the
place in the United States, time and date of the closing of such purchase (the
"Option Closing" and the date of such Closing, the "Option Closing Date"),
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which date shall not be less than two Business Days nor more than ten Business
the date on which an Option Notice is delivered; provided that the Option
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Closing shall be held only if (i) such purchase
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would not otherwise violate or cause the violation of, any applicable material
law, statute, ordinance, rule or regulation (collectively, "Laws") (including
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the HSR Act and the Communications Act), and (ii) no material judgment, order,
writ, injunction, ruling or decree of any Governmental Entity (collectively,
"Orders") shall have been promulgated, enacted, entered into, or enforced
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by any Governmental Entity which prohibits delivery of the Option Shares,
whether temporary, preliminary or permanent; provided, however, that the parties
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hereto shall use their reasonable best efforts to (x) promptly make and process
all necessary filings and applications and obtain all consents, approvals,
Orders, authorizations, registrations and declarations or expiration or
termination of any required waiting periods (collectively, "Approvals") and to
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comply with any such applicable Laws and (y) have any such Order vacated or
reversed. In the event the Option Closing is delayed pursuant to clause (i) or
(ii) above, the Option Closing shall be within ten Business Days following the
cessation of such restriction, violation, Law or Order or the receipt of any
necessary Approval, as the case may be (so long as the Option Notice was
delivered prior to the Expiration Date); provided further that, notwithstanding
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any prior Option Notice, Grantee shall be entitled to rescind such Option Notice
and shall not be obligated to purchase any Option Shares in connection with such
exercise upon written notice to such effect to Issuer.
(c) At any Option Closing, (i) Issuer shall deliver to Grantee all of
the Option Shares to be purchased by delivery of a certificate or certificates
evidencing such Option Shares in the denominations designated by Grantee in the
Option Notice, and (ii) if the Option is exercised in part and/or surrendered in
part to pay the aggregate Exercise Price pursuant to Section 1.3(b), Issuer and
Grantee shall execute and deliver an amendment to this Agreement reflecting the
Option Shares for which the Option has not been exercised and/or surrendered.
If at the time of issuance of any Option Shares pursuant to an exercise of all
or part of the Option hereunder, Issuer shall have issued any rights or other
securities which are attached to or otherwise associated with the Issuer Common
Stock, then each Option Share issued pursuant to such exercise shall also
represent such rights or other securities with terms substantially the same as
and at least as favorable to Grantee as are provided under any shareholder
rights agreement or similar agreement of Issuer then in effect. At the Option
Closing, Grantee shall pay to Issuer by wire transfer of immediately available
funds to an account specified by Issuer to Grantee in writing at least two
Business Days prior to the Option Closing an amount equal to the Exercise Price
multiplied by the number of Option Shares to be purchased for cash pursuant to
this Article I; provided that the failure or refusal of Issuer to specify an
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account shall not affect Issuer's obligation to issue the Option Shares.
(d) Upon the delivery by Grantee to Issuer of the Option Notice and
the tender of the applicable aggregate Exercise Price in immediately available
funds or the requisite portion of the Option in accordance with Section 1.3,
Grantee shall be deemed to be the holder of record of the Option Shares issuable
upon such exercise, notwithstanding that the stock transfer books of Issuer may
then be closed, that certificates representing such Option Shares may not then
have been actually delivered to Grantee, or Issuer may have failed or refused to
take any action required of it hereunder. Issuer shall pay all expenses that
may be payable in connection with the preparation, issuance and delivery of
stock certificates or an amendment to this Agreement under this Section 1.2 and
any filing fees and other expenses arising from the performance of the
transactions contemplated hereby.
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1.3 Payments.
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(a) The purchase and sale of the Option Shares pursuant to
Section 1.2 of this Agreement shall be at a purchase price equal to $17.15 per
share (as such amount may be adjusted pursuant to the terms hereof, the
"Exercise Price"), payable at Grantee's option in cash, by surrender of a
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portion of the Option in accordance with Section 1.3(b), or a combination
thereof.
(b) Grantee may elect to purchase Option Shares issuable, and
pay some or all of the aggregate Exercise Price payable, upon an exercise of the
Option by surrendering a portion of the Option with respect to such number of
Option Shares as is determined by dividing (i) the aggregate Exercise Price
payable in respect of the number of Option Shares being purchased in such manner
by (ii) the excess of the Fair Market Value (as defined below) per share of
Issuer Common Stock as of the last trading day preceding the date Grantee
delivers its Option Notice (such date, the "Option Exercise Date") over the per
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share Exercise Price. The "Fair Market Value" per share of Issuer Common Stock
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shall be (i) if the Issuer Common Stock is listed on the NASDAQ National Market
System or any other nationally recognized exchange or trading system as of the
Option Exercise Date, the average of last reported sale prices per share of
Issuer Common Stock thereon for the 10 trading days commencing on the 12/th/
trading day immediately preceding the Option Exercise Date, or (ii) if the
Issuer Common Stock is not listed on the NASDAQ National Market System or any
other nationally recognized exchange or trading system as of the Option Exercise
Date, the amount determined by a mutually acceptable independent investment
banking firm as the value per share the Issuer Common Stock would have if
publicly traded on a nationally recognized exchange or trading system (assuming
no discount for minority interest, illiquidity or restrictions on transfer).
That portion of the Option so surrendered under this Section 1.3(b) shall be
canceled and shall thereafter be of no further force and effect.
(c) Certificates for the Option Shares delivered at an Option
Closing will have typed or printed thereon a restrictive legend which will read
substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE REOFFERED OR SOLD
ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE. SUCH SECURITIES ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON
TRANSFER AS SET FORTH IN THE STOCK OPTION AGREEMENT DATED AS OF NOVEMBER
12, 2000, A COPY OF WHICH MAY BE OBTAINED FROM THE SECRETARY OF ADAPTIVE
BROADBAND CORPORATION AT ITS PRINCIPAL EXECUTIVE OFFICES."
It is understood and agreed that (i) the reference to restrictions arising under
the Securities Act in the above legend will be removed by delivery of substitute
certificate(s) without such reference if such Option Shares have been registered
pursuant to the Securities Act, such Option Shares have been sold in reliance on
and in accordance with Rule 144 under the Securities Act or Grantee has
delivered to Issuer a copy of a letter from the staff of the SEC, or an opinion
of counsel in form
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and substance reasonably satisfactory to Issuer and its counsel, to the effect
that such legend is not required for purposes of the Securities Act and (ii) the
reference to restrictions pursuant to this Agreement in the above legend will be
removed by delivery of substitute certificate(s) without such reference if the
Option Shares evidenced by certificate(s) containing such reference have been
sold or transferred in compliance with the provisions of this Agreement under
circumstances that do not require the retention of such reference.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of Grantee. Grantee hereby
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represents and warrants to Issuer that any Option Shares or other securities
acquired by Grantee upon exercise of the Option will not be taken with a view to
the public distribution thereof and will not be transferred or otherwise
disposed of except in a transaction registered or exempt from registration under
the Securities Act.
2.2 Representations and Warranties of Issuer. Issuer hereby
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represents and warrants to Grantee as follows:
(a) Option Shares. Issuer has taken all necessary corporate and
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other action to authorize and reserve for issuance, and, subject to receipt of
any Approvals, to permit it to issue, the Option Shares and all additional
shares or other securities which may be issued pursuant to Section 3.1 upon
exercise of the Option, and, at all times from the date hereof until such time
as the obligation to deliver Option Shares hereunder terminates, will have
reserved for issuance upon exercise of the Option the Option Shares and such
other additional shares or securities, if any. All of the Option Shares and all
additional shares or other securities or property which may be issuable pursuant
to Section 3.1, upon exercise of the Option and issuance pursuant hereto, shall
be duly authorized, validly issued, fully paid and nonassessable, shall be
delivered free and clear of all Liens of any nature whatsoever, and shall not be
subject to any preemptive or similar right of any Person.
(b) No Restrictions. No Delaware law or other takeover statute
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or similar Law and no provision of the Restated Certificate of Incorporation or
Bylaws of Issuer or any agreement to which Issuer is a party (a) would or would
purport to impose restrictions which might adversely affect or delay the
consummation of the transactions contemplated by this Agreement, or (b) as a
result of the consummation of the transactions contemplated by this Agreement,
(i) would or would purport to restrict or impair the ability of Grantee to vote
or otherwise exercise the rights of a shareholder with respect to securities of
Issuer or any of its Subsidiaries that may be acquired or controlled by Grantee
or (ii) would or would purport to entitle any Person to acquire securities of
Issuer.
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ARTICLE III
ADJUSTMENT UPON CHANGES IN CAPITALIZATION
3.1 Adjustment Upon Changes in Capitalization. In addition to the
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adjustment in the number of shares of Issuer Common Stock that may be purchased
upon exercise of the Option pursuant to Section 1.1 of this Agreement, the
number of shares of Issuer Common Stock that may be purchased upon the exercise
of the Option and the Exercise Price shall be subject to adjustment from time to
time as provided in this Section 3.1. In the event of any change in the number
of issued and outstanding shares of Issuer Common Stock by reason of any stock
dividend, split-up, merger, recapitalization, combination, conversion, exchange
of shares, spin-off or other change in the corporate or capital structure of
Issuer which would have the effect of diluting or otherwise diminishing
Grantee's rights hereunder, the number and kind of Option Shares or other
securities subject to the Option and the Exercise Price therefor shall be
appropriately adjusted so that Grantee shall receive upon exercise of the Option
(or, if such a change occurs between exercise and the Option Closing, upon the
Option Closing) the number and kind of shares or other securities or property
that Grantee would have received in respect of the Option Shares that Grantee is
entitled to purchase upon exercise of the Option if the Option had been
exercised (or the purchase thereunder had been consummated, as the case may be)
immediately prior to such event or the record date for such event, as
applicable. The rights of Grantee under this Section shall be in addition to,
and shall in no way limit, its rights against Issuer for breach of or the
failure to perform any provision of the Merger Agreement.
ARTICLE IV
REGISTRATION RIGHTS
4.1 Registration of Option Shares Under the Securities Act.
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(a) If requested by Grantee at any time and from time to time
within two years after receipt by Grantee of Option Shares (the "Registration
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Period"), Issuer shall use its reasonable best efforts, as promptly as
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practicable, to effect the registration under the Securities Act and any
applicable state law (a "Demand Registration") of such number of Option Shares
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or such other Issuer securities owned by or issuable to Grantee in accordance
with the method of sale or other disposition contemplated by Grantee, including
a "shelf" registration statement under Rule 415 of the Securities Act or any
successor provision, and to obtain all consents or waivers of other parties that
are required therefor. Grantee agrees to use reasonable best efforts to cause,
and to use reasonable best efforts to cause any underwriters of any sale or
other disposition to cause, any sale or other disposition pursuant to such
registration statement to be effected on a widely distributed basis so that upon
consummation thereof no purchaser or transferee will own beneficially more than
5% of the then-outstanding voting power of Issuer. Except with respect to such a
"shelf" registration, Issuer shall keep such Demand Registration effective for a
period of not less than 150 days, unless, in the written opinion of counsel to
Issuer, which opinion shall be delivered to Grantee and which shall be
reasonably satisfactory in form and substance to Grantee and its counsel, such
registration under the Securities Act is not
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required in order to lawfully sell and distribute such Option Shares or other
Issuer securities in the manner contemplated by Grantee. Issuer shall only have
the obligation to effect three Demand Registrations pursuant to this Section
4.1; provided that only requests relating to a registration statement that
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has become effective under the Securities Act shall be counted for purposes of
determining the number of Demand Registrations made. Issuer shall be entitled to
postpone for up to 90 days from receipt of Grantee's request for a Demand
Registration the filing of any registration statement in connection therewith if
the Board of Directors of Issuer determines in its good faith reasonable
judgment that such registration would materially interfere with any material
event involving the Issuer or require premature disclosure of any material non-
public information the disclosure of which would materially and adversely affect
the Issuer; and provided further that Issuer shall not have postponed any Demand
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Registration pursuant to this sentence during the twelve month period
immediately preceding the date of delivery of Grantee's request for a Demand
Registration.
(b) If Issuer effects a registration under the Securities Act of
Issuer Common Stock for its own account or for any other stockholders of Issuer
(other than on Form S-4 or Form S-8, or any successor form), Grantee shall have
the right to participate in such registration and include in such registration
the number of shares of Issuer Common Stock or such other Issuer securities as
Grantee shall designate by notice to Issuer (an "Incidental Registration" and,
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together with a Demand Registration, a "Registration"); provided, however, that,
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if the managing underwriters of such offering advise Issuer in writing that in
their opinion the number of shares of Issuer Common Stock or other securities
requested to be included in such Incidental Registration exceeds the number
which can be sold in such offering, Issuer shall include therein (i) first, all
shares proposed to be included therein by Issuer, (ii) second, subject to the
rights of any other holders of registration rights in effect as of the date
hereof, the shares requested to be included therein by Grantee and (iii) third,
shares proposed to be included therein by any other stockholder of Issuer.
Participation by Grantee in any Incidental Registration shall not affect the
obligation of Issuer to effect Demand Registrations under this Section 4.1.
Issuer may withdraw any registration under the Securities Act that gives rise to
an Incidental Registration without the consent of Grantee.
(c) In connection with any Registration pursuant to this Section
4.1, (i) Issuer and Grantee shall provide each other and any underwriter of the
offering with customary representations, warranties, covenants, indemnification
and contribution obligations in connection with such Registration, (ii) Issuer
shall use reasonable best efforts to cause any Option Shares included in such
Registration to be approved for listing on the NASDAQ National Market System or
any other nationally recognized exchange or trading system upon which Issuer's
securities are then listed, subject to official notice of issuance, which notice
shall be given by Issuer upon issuance and (iii) Grantee shall provide all
information reasonably requested by Issuer that is required for inclusion in any
registration statement covering the Option Shares. Grantee will provide all
information reasonably requested by Issuer for inclusion in any registration
statement to be filed hereunder. The costs and expenses incurred by Issuer in
connection with any Registration pursuant to this Section 4.1 (including any
fees related to qualifications under Blue Sky Laws and SEC filing fees) (the
"Registration Expenses") shall be borne by Issuer, excluding legal fees of
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Grantee's counsel and underwriting discounts or commissions with respect to
Option Shares to be sold by Grantee included in a Registration.
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4.2 Transfers of Option Shares. The Option Shares may not be sold,
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assigned, transferred, or otherwise disposed of except (i) in an underwritten
public offering as provided in Section 4.1 or (ii) to any purchaser of
transferee who would not, to the knowledge of the Grantee after reasonable
inquiry, immediately following such sale, assignment, transfer or disposal
beneficially own more than 5% of the then-outstanding voting power of the
Issuer; provided, however, that Grantee shall be permitted to sell any Option
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Shares if such sale is made pursuant to a tender or exchange offer that has been
approved or recommended by a majority of the members of the Board of Directors
of Issuer (which majority shall include a majority of directors who were
directors as of the date hereof).
ARTICLE V
REPURCHASE RIGHTS; SUBSTITUTE OPTIONS; RIGHT OF FIRST REFUSAL
5.1 Repurchase Rights.
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(a) Subject to Section 6.1, at any time on or after the Exercise
Date and prior to the Expiration Date, Grantee shall have the right (the
"Repurchase Right") to require Issuer to repurchase from Grantee (i) the Option
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(i) the Option or any part thereof as Grantee shall designate at a price (the
"Option Repurchase Price") equal to the amount, subject to reduction at the sole
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discretion of Grantee pursuant to clause (iii) of Section 6.1(a), by which (A)
the Market/Offer Price (as defined below) exceeds (B) the Exercise Price,
multiplied by the number of Option Shares as to which the Option is to be
repurchased and (ii) such number of Option Shares as Grantee shall designate at
a price (the "Option Share Repurchase Price") equal to the Market/Offer Price
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multiplied by the number of Option Shares so designated. The term "Market/Offer
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Price" shall mean the highest of (i) the highest price per share of Issuer
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Common Stock offered or paid in any Acquisition Proposal, or (ii) the highest
closing price for shares of Issuer Common Stock during the six-month period
immediately preceding the date Grantee gives the Repurchase Notice (as
hereinafter defined). In determining the Market/Offer Price, the value of
consideration other than cash shall be determined by a nationally recognized
investment banking firm selected by Grantee and reasonably acceptable to Issuer,
which determination, absent manifest error, shall be conclusive for all purposes
of this Agreement.
(b) Grantee shall exercise its Repurchase Right by delivering to
Issuer written notice (a "Repurchase Notice") stating that Grantee elects to
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require Issuer to repurchase all or a portion of the Option and/or the Option
Shares as specified therein. The closing of the Repurchase Right (the
"Repurchase Closing") shall take place in the United States at the place, time
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and date specified in the Repurchase Notice, which date shall not be less than
two Business Days nor more than ten Business Days from the date on which the
Repurchase Notice is delivered. At the Repurchase Closing, subject to the
receipt of a writing evidencing the surrender of the Option and/or certificates
representing Option Shares, as the case may be, Issuer shall deliver to Grantee
the Option Repurchase Price therefor or the Option Share Repurchase Price
therefor, as the case may be, or the portion thereof that Issuer is not then
prohibited under applicable Law from so delivering. At the Repurchase Closing,
(i) Issuer shall pay to Grantee the Option Repurchase Price for the portion of
the Option which is to be repurchased or the Option Shares Repurchase Price for
the number of Option Shares to be repurchased, as the case may be, by wire
transfer of immediately available funds to an account specified by Grantee at
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least 24 hours prior to the Repurchase Closing and (ii) if the Option is
repurchased only in part, Issuer and Grantee shall execute and deliver an
amendment to this Agreement reflecting the Option Shares for which the Option is
not being repurchased.
(c) To the extent that Issuer is prohibited under applicable Law
from repurchasing the portion of the Option or the Option Shares designated in
such Repurchase Notice, Issuer shall immediately so notify Grantee and
thereafter deliver, from time to time, to Grantee the portion of the Option
Repurchase Price and the Option Share Repurchase Price, respectively, that it is
no longer prohibited from delivering, within five Business Days after the date
on which Issuer is no longer so prohibited; provided, however, that if Issuer at
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any time after delivery of a Repurchase Notice is prohibited under applicable
Law from delivering to Grantee the full amount of the Option Repurchase Price
and the Option Share Repurchase Price for the Option or Option Shares to be
repurchased, respectively, Grantee may rescind the exercise of the Repurchase
Right, whether in whole, in part or to the extent of the prohibition, and, to
the extent rescinded, no part of the amounts, terms or the rights with respect
to the Option or Repurchase Right shall be changed or affected as if such
Repurchase Right were not exercised. Issuer shall use its reasonable best
efforts to obtain all required regulatory and legal approvals and to file any
required notices to permit Grantee to exercise its Repurchase Right and shall
use its reasonable best efforts to avoid or cause to be rescinded or rendered
inapplicable any prohibition on Issuer's repurchase of the Option or the Option
Shares.
(d) If the Grantee has acquired Option Shares pursuant to the
exercise of the Option, then, at any time during the period beginning six months
from the Exercise Date and ending 12 months from the Exercise Date (the "Issuer
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Purchase Period"), the Issuer may require the Grantee, upon delivery to the
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Grantee of a notice stating that the Issuer is exercising its rights under this
Section 5.1(d), to sell to the Issuer all, but not less than all, of the Option
Shares held by the Grantee. (The date on which the Issuer delivers such notice
to the Grantee is referred to as the "Issuer Request Date.") Such repurchase
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shall be at an aggregate price (the "Issuer Repurchase Consideration") equal to
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the sum the aggregate number of Option Shares held by the Grantee multiplied by
the Market/Offer Price. The closing of any repurchase of Option Shares pursuant
to this Section 5.1(d) shall take place on the date designated by the Issuer in
the notice delivered pursuant to this Section 5.1(d), which date shall be no
more than 20 and no less than three business days from the Issuer Request Date.
On the closing date, the Issuer shall pay the Issuer Repurchase Consideration to
the Grantee in immediately available funds, and the Grantee shall thereupon
surrender to the Issuer the certificate or certificates evidencing the shares of
Issuer Common Stock repurchased by the Issuer pursuant to this Section 5.1(d).
5.2 Substitute Option.
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(a) In the event that Issuer enters into an agreement (i) to
consolidate with or merge into any Person, other than Grantee or any Subsidiary
of Grantee (each an "Excluded Person"), and Issuer is not the continuing or
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surviving corporation of such consolidation or merger, (ii) to permit any
Person, other than an Excluded Person, to merge into Issuer and Issuer shall be
the continuing or surviving or acquiring corporation, but, in connection with
such merger, the then outstanding shares of Issuer Common Stock shall be changed
into or exchanged for stock or other securities of any other Person or cash or
any other property or the then outstanding shares of Issuer Common Stock shall
after such merger represent less than 50%
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of the outstanding voting securities of the merged or acquiring company, or
(iii) to sell or otherwise transfer all or substantially all of its assets to
any Person, other than an Excluded Person, then, and in each such case, the
agreement governing such transaction shall make proper provision so that, unless
earlier exercised by Grantee, the Option shall, upon the consummation of any
such transaction and upon the terms and conditions set forth herein, be
converted into, or exchanged for, an option with identical terms appropriately
adjusted to acquire the number and class of shares or other securities or
property that Grantee would have received in respect of Issuer Common Stock if
the Option had been exercised immediately prior to such consolidation, merger,
sale, or transfer, or the record date therefor, as applicable and make any other
necessary adjustments; provided, however, that if such a conversion or exchange
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cannot, because of applicable Law be the same as the Option, such terms shall be
as similar as possible and in no event less advantageous to Grantee than the
Option.
(b) In addition to any other restrictions or covenants, Issuer
agrees that it shall not enter or agree to enter into any transaction described
in Section 5.2(a) unless the Acquiring Corporation (as hereinafter defined) and
any Person that controls the Acquiring Corporation assume in writing all the
obligations of Issuer hereunder and agree for the benefit of Grantee to comply
with this Article V.
(c) For purposes of this Section 5.2, the term "Acquiring
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Corporation" shall mean (i) the continuing or surviving Person of a
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consolidation or merger with Issuer (if other than Issuer), (ii) Issuer in a
consolidation or merger in which Issuer is the continuing or surviving or
acquiring Person, and (iii) the transferee of all or substantially all of
Issuer's assets.
5.3 First Refusal.
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(a) If the Grantee desires to sell, assign, transfer or
otherwise dispose of all or any of the shares of Issuer Common Stock or other
securities acquired by it pursuant to the exercise of the Option, it will give
the Issuer written notice of the proposed transaction (the "Offeror's Notice"),
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identifying the proposed transferee, the proposed purchase price and the terms
of such proposed transaction. For 10 business days following receipt of such
notice, the Issuer shall have the option to elect by written notice to purchase
all, but not less than all, of the shares specified in Offeror's Notice at the
price and upon the terms set forth in such notice.
(b) The closing of any repurchase of Option Shares pursuant to
this Section 5.3 shall take place within 10 business days of the Issuer's
election to purchase such shares. On the closing date, the Issuer shall pay the
purchase price to the Grantee in immediately available funds, and the Grantee
shall thereupon surrender to the Issuer the certificate or certificates
evidencing the shares of Issuer Common Stock repurchased by the Issuer pursuant
to this Section 5.3.
(c) If the Issuer does not elect to purchase the shares of
Issuer Common Stock or other securities designated in the Offeror's Notice, the
Grantee may, within 60 days from the date of the Offeror's Notice sell such
shares of Issuer Common Stock or other securities to the proposed transferee at
no less than the price specified and on terms not more favorable to the
transferee than those set forth in the Offeror's Notice, provided, however, that
11
the provisions of this Section 5.3(c) will not limit the rights the Grantee may
otherwise have if the Issuer has elected to purchase such shares of Issuer
Common Stock or other securities and wrongfully refuses to complete such
purchase.
(d) The requirements of this Section 5.3 will not apply to (i)
any sale, assignment, transfer or disposition to an affiliate of the Grantee;
provided that such affiliate agrees to be bound by the terms hereof, (ii) any
sale, assignment, transfer or disposition as a result of which the proposed
transferee would own beneficially not more than 5% of the outstanding voting
power of the Issuer or (iii) any sales or transfers by the Grantee in a
registered underwritten offering.
ARTICLE VI
MISCELLANEOUS
6.1 Total Profit.
------------
(a) Notwithstanding any other provision of this Agreement, in
no event shall Grantee's Total Profit (as hereinafter defined) plus any
termination fees paid by the Issuer pursuant to Sections 7.2(b) and 7.2(d) of
the Merger Agreement (such fees, collectively, the "Total Issuer Fees") exceed
-----------------
in the aggregate an amount (the "Limitation Amount") equal to $27,500,000, and,
-----------------
if the total amount that would otherwise be received by Grantee otherwise would
exceed such amount, Grantee, at its sole election, shall either (i) reduce the
number of shares of Issuer Common Stock subject to this Option, (ii) deliver to
Issuer for cancellation Option Shares previously purchased by Grantee, (iii)
reduce the amount of the Option Repurchase Price or the Option Share Repurchase
Price, (iv) pay cash to Issuer, or (v) any combination thereof, so that
Grantee's actually realized Total Profit, when aggregated with the Total Issuer
Fees so paid to Grantee, shall not exceed the Limitation Amount after taking
into account the foregoing actions.
(b) Notwithstanding any other provision of this Agreement, the
Option may not be exercised for a number of Option Shares as would, as of the
date of exercise, result in a Notional Total Profit (as defined below) which,
together with the Total Issuer Fees theretofore paid to Grantee, would exceed
the Limitation Amount; provided, that nothing in this sentence shall restrict
--------
any exercise of the Option permitted hereby on any subsequent date.
(c) As used herein, the term "Total Profit" shall mean the
------------
aggregate amount (before taxes) of the following: (i) the amount received by
Grantee pursuant to Issuer's repurchase of the Option (or any portion thereof)
pursuant to Section 5.1, (ii) (x) the amount received by Grantee pursuant to
Issuer's repurchase of Option Shares pursuant to Section 5.1, less (y) Grantee's
purchase price for such Option Shares and (iii) (x) the net cash amounts or the
fair market value of any property received by Grantee pursuant to any
consummated arm's-length sales of Option Shares (or any other securities into
which such Option Shares are converted or exchanged) to any unaffiliated party,
less (y) Grantee's purchase price of such Option Shares.
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(d) As used herein, the term "Notional Total Profit" with
---------------------
respect to any number of Option Shares as to which Grantee may propose to
exercise the Option shall be the Total Profit determined as of the date of such
proposal assuming that the Option was exercised on such date for such number of
Option Shares and assuming that such Option Shares, together with all other
Option Shares held by Grantee and its affiliates as of such date, were sold for
cash at the closing market price (less customary brokerage commissions) for
shares of Issuer Common Stock on the preceding trading day on the NASDAQ
National Market System (or on any other nationally recognized exchange or
trading system on which shares of Issuer Common Stock are then so listed or
traded).
6.2 Further Assurances; Listing.
---------------------------
(a) From time to time, at the other party's request and without
further consideration, each party hereto shall execute and deliver such
additional documents and take all such further action as may be necessary or
desirable to consummate the transactions contemplated by this Agreement,
including, without limitation, to vest in Grantee good and marketable title,
free and clear of all Liens, to any Option Shares purchased hereunder. Issuer
agrees not to avoid or seek to avoid (whether by charter amendment or through
reorganization, consolidation, merger, issuance of rights or securities, the
Adaptive Rights Agreement or similar agreement, dissolution or sale of assets,
or by any other voluntary act) the observance or performance of any of the
covenants, agreements or conditions to be observed or performed hereunder by it.
(b) If the Issuer Common Stock or any other securities to be
acquired upon exercise of the Option are then listed on the NASDAQ National
Market System (or any other national securities exchange or trading system),
Issuer, upon the request of Grantee, will promptly file an application to list
the shares of Issuer Common Stock or such other securities to be acquired upon
exercise of the Option on the NASDAQ National Market System (and any other
national securities exchange or trading system) and will use reasonable best
efforts to obtain approval of such listing as promptly as practicable.
6.3 Division of Option; Lost Options. The Agreement (and the
--------------------------------
Option granted hereby) are exchangeable, without expense, at the option of
Grantee, upon presentation and surrender of this Agreement at the principal
office of Issuer, for other agreements providing for Options of different
denominations entitling Grantee to purchase, on the same terms and subject to
the same conditions as are set forth herein, in the aggregate the same number of
Option Shares purchasable hereunder. Upon receipt by Issuer of evidence
reasonably satisfactory to it of the loss, theft or destruction or mutilation of
this Agreement, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Agreement, if mutilated, Issuer will execute and deliver a new agreement of like
tenor and date.
6.4 Amendment. This Agreement may not be amended except by
---------
an instrument in writing signed on behalf of each of the parties hereto.
6.5 Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed duly given (a) on the date of delivery
if delivered personally, or
13
by telecopy or telefacsimile, upon confirmation of receipt, (b) on the first
Business Day following the date of dispatch if delivered by a recognized next-
day courier service, or (c) on the tenth Business Day following the date of
mailing if delivered by registered or certified mail, return receipt requested,
postage prepaid. All notices hereunder shall be delivered as set forth below, or
pursuant to such other instructions as may be designated in writing by the party
to receive such notice:
(a) if to Grantee to:
Western Multiplex Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
00 Xxxxxxxxx Xxxx Xxxxx, Xxxxx 0000
Xxxxxxxxx Xxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx, Esq.
(b) if to Issuer to:
Adaptive Broadband Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
with a copy to:
Xxxxxx Godward LLP
Xxx Xxxxxxxx Xxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000
Attention: Xxxx Xxxxxxxx, Esq.
6.6 Interpretation. When a reference is made in this
--------------
Agreement to Articles, Sections, Exhibits or Schedules, such reference shall be
to an Article or Section of or Exhibit or Schedule to this Agreement unless
otherwise indicated. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Whenever the words "include," "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation."
14
6.7 Counterparts. This Agreement may be executed in one or
------------
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other party, it being understood that
both parties need not sign the same counterpart.
6.8 Entire Agreement; No Third Party Beneficiaries.
----------------------------------------------
(a) This Agreement and the other agreements of the parties
referred to herein constitute the entire agreement and supersede all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof.
(b) This Agreement shall be binding upon and inure solely to the
benefit of each party hereto, and nothing in this Agreement, express or implied,
is intended to or shall confer upon any other Person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
6.9 Governing Law. This Agreement shall be governed and
-------------
construed in accordance with the laws of the State of Delaware applicable to
contracts executed and to be performed entirely within that State.
6.10 Severability. If any term or other provision of this
------------
Agreement is invalid, illegal or incapable of being enforced by any law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner in
order that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
6.11 Assignment. Neither this Agreement nor any of the rights,
----------
interests or obligations hereunder shall be assigned by any of the parties
hereto, in whole or in part (whether by operation of law or otherwise), without
the prior written consent of the other party, and any attempt to make any such
assignment without such consent shall be null and void. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit of
and be enforceable by the parties and their respective successors and assigns.
6.12 Submission to Jurisdiction; Waivers. Each of Grantee and
-----------------------------------
Issuer irrevocably agrees that any legal action or proceeding with respect to
this Agreement or for recognition and enforcement of any judgment in respect
hereof brought by the other party hereto or its successors or assigns may be
brought and determined in the Chancery or other Courts of the State of Delaware,
and each of Grantee and Issuer hereby irrevocably submits with regard to any
such action or proceeding for itself and in respect to its property, generally
and unconditionally, to the nonexclusive jurisdiction of the aforesaid courts.
Each of Grantee and Issuer hereby irrevocably waives, and agrees not to assert,
by way of motion, as a defense, counterclaim or otherwise, in any action or
proceeding with respect to this Agreement, (a) any claim that it is not
personally subject to the jurisdiction of the above-named courts for any reason
15
other than the failure to lawfully serve process (b) that it or its property is
exempt or immune from jurisdiction of any such court or from any legal process
commenced in such courts (whether through service of notice, attachment prior to
judgment, attachment in aid of execution of judgment, execution of judgment or
otherwise), (c) to the fullest extent permitted by applicable law, that (i) the
suit, action or proceeding in any such court is brought in an inconvenient
forum, (ii) the venue of such suit, action or proceeding is improper and (iii)
this Agreement, or the subject matter hereof, may not be enforced in or by such
courts and (d) any right to a trial by jury.
6.13 Enforcement. The parties 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. It is accordingly agreed
that the parties shall be entitled to specific performance of the terms hereof,
this being in addition to any other remedy to which they are entitled at law or
in equity.
6.14 Failure or Indulgence Not Waiver; Remedies Cumulative.
-----------------------------------------------------
No failure or delay on the part of any party hereto in the exercise of any right
hereunder will impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty or agreement herein,
nor will any single or partial exercise of any such right preclude other or
further exercise thereof or of any other right. All rights and remedies
existing under this Agreement are cumulative to, and not exclusive to, and not
exclusive of, any rights or remedies otherwise available.
16
IN WITNESS WHEREOF, Grantee and Issuer have caused this Stock Option
Agreement to be duly executed as of the date first above written.
GRANTEE: WESTERN MULTIPLEX CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx
__________________________________________________
Name: Xxxxxxxx X. Xxxxx
Title: Chairman and Chief Executive Officer
ISSUER: ADAPTIVE BROADBAND CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxxxxx
_________________________________________________
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Chairman and Chief Executive Officer
