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EXHIBIT 10.20
AGREEMENT
Agreement, dated as of February 27, 1998, by and among Northern Telecom
Inc. ("Nortel"), Antec Corporation ("Antec") and Arris Interactive L.L.C.
("Arris").
WHEREAS, Antec and Nortel are parties to a Limited Liability Company
Agreement, dated as of November 1, 1995 which established Arris ("LLC
Agreement");
WHEREAS, Nortel, Antec and Arris are parties to a Framework Agreement
dated as of November 1, 1995 ("Framework Agreement");
WHEREAS, Antec and Arris are parties to a License Agreement related to
Digital Video Technology, dated as of November 17, 1995 ("Antec License
Agreement");
WHEREAS, Nortel and Arris are parties to a License Agreement related to
Cornerstone Total Access, Voice and Data, dated as of November 17, 1997
("Nortel License Agreement");
WHEREAS, Nortel, Antec and Arris are parties to a Secured Loan Agreement,
dated as of November 17, 1995 ("Loan Agreement");
WHEREAS Nortel and Arris contemplate entering into an additional agreement
after the effective date of this Agreement, providing for the distribution by
Nortel of Arris' products outside North America ("International Distribution
Agreement"); and
WHEREAS, the applicable parties to the agreements described above wish to
amend such agreements.
NOW, THEREFORE, in consideration of the mutual promises of the parties,
and of good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, it is agreed as follows (capitalized terms used and
not defined in this Agreement have the meanings given to them in the referenced
agreement):
1. Each of Nortel and Antec represents and warrants to the other that:
(a) It has all requisite power and authority to own its property, to
conduct its business as currently conducted and to execute and deliver, and to
perform its obligations under this Agreement.
(b) This Agreement has been duly authorized, executed and delivered
by it and constitutes a legal, valid and binding obligation of it, enforceable
against it in accordance with its terms.
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(c) No permits, licenses, franchises, approvals, authorizations,
qualifications or consents of, or registrations or filings with, governmental
authorities are required in connection with the execution or delivery by it of,
or the performance by it of its obligations under this Agreement, except such
as have been obtained or made and are in full force and effect.
(d) The execution and delivery of, and the performance by it of its
obligations under this Agreement does not and will not result in a breach or
constitute a violation of, conflict with, or constitute a default under, its
certificate of incorporation or bylaws or any law, regulation, order or
judgment applicable to it or any agreement, course of dealing, obligation or
instrument to which it is a party or by which it or any of its property is
bound, which breach, violation, conflict or default could have an adverse
effect on the other parties to this Agreement or their affiliates or on the
ability of it or Arris to perform their obligations under this Agreement.
(e) No actions, proceedings or claims are pending or, to the
knowledge of it, threatened against it or any of its property that could affect
the validity or enforceability of this Agreement, or that could have a
materially adverse effect on the ability of it to perform its obligations under
this Agreement.
2. With respect to the Loan Agreement, Nortel, Antec and Arris agree:
(a) In the first WHEREAS clause, "$84 million" is changed to "$150
million."
(b) In Article I under Additional Loan, "$18 million" is changed to
"$84 million."
(c) In Article I under Availability Period, "third" is changed to
"fifth."
(d) In Article X, Section 10.02(a) is amended in its entirety to
read as follows:
Section 10.02. Payments. (a)(i) From and after the date of the
purchase of an Optional Participating Interest by Antec, whenever the
Lender receives or collects any payment of principal or interest or
any other payment made under this Agreement in respect of the Loans,
including by way of set-off, deduction or counterclaim, the Lender
shall pay over 50% of such amounts to Antec within two Banking Days of
the Lender's receipt thereof. (ii) Except as set forth in Section
10.02(a)(i), whenever the Lender receives or collects any payment of
principal or interest or any other payment made under this Agreement
in respect of the Loans and/or the Additional Loans, including by way
of set-off, deduction or counterclaim, the Lender shall pay over to
Antec within two Banking Days of the Lender's receipt thereof an
amount equal to the product of (x) the amount of such payment and (y)
a fraction, the numerator of which is the aggregate amount of
Mandatory Participating Interest paid by Antec to the Lender and the
aggregate
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accrued and unpaid interest on such amount, and the denominator of which
is aggregate amount of the Loans and the Additional Loans and the aggregate
accrued and unpaid interest on such amount.
(e) In Article XI, Section 11.01, 11.02(b) and 11.03(a) are amended in
their entirety to read as follows:
Section 11.01. Additional Commitment to Lend. On the terms and subject
to the conditions set forth under this Article XI, the Lender shall, upon
the Products Venture's request made in accordance with Section 11.02, make
additional loans, to the Products Venture during the Availability Period
(each such additional loan an "Additional Loan"). The aggregate principal
amount of the Additional Loans made by the Lender hereunder shall not,
in the aggregate (excluding any interest accrued on Additional Loans made
hereunder), exceed $84 million. Each Additional Loan made hereunder shall
be in multiples of $500,000; provided, that (i) the Lender shall not be
required to make more than four Additional Loans during any Fiscal quarter
and (ii) the Members Committee shall approve any Additional Loan, the
principal amount of which is in excess of $2,000,000.
Section 11.02(b). The obligation of the Lender to make an Additional
Loan is subject to the satisfaction of the following conditions:
(1) (i) receipt by the Lender of a Notice of Additional Borrowing as
required by Section 11.02(a);
(ii) the Security Agreement shall be in full force and effect; and
(iii) The Pledge Agreement shall be in full force and effect.
(2) Provided the aggregate principal amount of the Additional Loans
made by the Lender hereunder is either (i) less than $34 million or (ii)(A)
$34 million or more, (B) the condition set forth in Section 11.02(b)(3) is
satisfied and (C) Antec has elected to make a Mandatory Participating
Interest pursuant to Section 11.03, which election may be reversed (with
respect to Additional Loans not then made) at any time at the sole
discretion of Antec:
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(A) receipt by the Lender from Antec of its agreement to
participate in the Additional Loan in the form attached as Exhibit D hereto
("Antec's Participation Commitment"); and
(B) receipt by the Lender from Antec of payment in cash of an
amount equal to 25% of the principal amount of the Additional Loan.
(3) Provided the aggregate principal amount of the Additional Loans
made by the Lender is $34 million or more, election by the Lender to make
Additional Loans, which election may be reversed (with respect to Additional
Loans not then made) at any time at the sole discretion of the Lender.
(4) Each of the Lender and Antec shall be deemed to have made an
affirmative election to make Additional Loans, in the case of the Lender, and a
Mandatory Participating Interest, in the case of Antec, during the period
between (i) when the aggregate principal amount of the Additional Loans made by
the Lender is $34 million or more and (ii) provided a request for a
determination of the Fair Market Price (as defined in, and in accordance with,
Section 6.04 of the Products LLC Agreement) has been made, the date of
completion of such determination.
Section 11.03. Mandatory Participation by Antec.
(a) Unless a negative election has been made by Antec pursuant to
Section 11.02(b)(2)(ii)(C), Antec shall purchase from the Lender an undivided
25% participating interest in and to such Additional Loan (a "Mandatory
Participating Interest") for payment in cash to the Lender of an amount equal to
25% of the principal amount of such Additional Loan, within two Banking Days of
receipt by Antec of a Notice of Additional Borrowing from the Products Venture.
3. With respect to the LLC Agreement, Antec and Nortel agree:
(a) The third WHEREAS clause is amended in its entirety to read as
follows:
WHEREAS, it is intended that the Company shall, for multiple services
operators and telephone company network operators develop, manufacture and have
manufactured, sell directly and distribute, digital broadband access networking
products and applications for the delivery of narrow band and broadband services
over a Hybrid Fiber Coaxial Cable Network consisting of network elements for
headend and premises deployment ("Cornerstone Products") ("the Business Scope");
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(b) In Article I, under Section 1.01, Interest is amended in its
entirety to read as follows:
"Interest" means, in the case of Nortel, Nortel's initial 75%
interest in the Company or any other percentage interest in the
Company held by Nortel as a result of either a Transfer of a portion
of its percentage interest pursuant to Section 2.05(c) or an
adjustment of its percentage interest made pursuant to Section 2.05(e)
or (f) and, in the case of Antec, Antec's 25% interest in the Company
or any other percentage interest in the Company held by Antec as a
result of an adjustment of its percentage interest made pursuant to
Section 2.05(e) or (f).
(c) In Article II, the following is added to Section 2.05 as
subparagraphs (e), (f) and (g):
(e) Provided (1)(i) the aggregate principal amount of the
Additional Loans (as defined in the Product Loan Agreement) then made
is $34 million or more and (ii) Antec has elected not to make a
Mandatory Participating Interest (as defined in the Product Loan
Agreement) for the then requested Additional Loan to which such
Mandatory Participating Interest relates and the determination of the
Fair Market Price in connection with such election has been made and
(2) Nortel has not exercised its right under Section 6.04(a)(y), and
subject to Section 2.05(g), Nortel shall have the option, at its sole
discretion, to increase its Capital Contribution by contributing to
the Products Venture the amount of the Mandatory Participating
Interest in connection with such Additional Loan, and after such
contribution has been made, Nortel's and Antec's Interest shall be
adjusted based upon the then current Fair Market Price determined in
accordance with Section 6.04.
(f) Provided (1)(i) the aggregate principal amount of the
Additional Loans then made is $34 million or more and (ii) Nortel has
elected not to make the Additional Loan then requested and the
determination of the Fair Market Price in connection with such
election has been made and (2) Antec has not exercised its right
under Section 6.04(a)(y), and subject to Section 2.05(g), Antec shall
have the option, at its sole discretion, to increase its Capital
Contribution by contributing to the Products Venture 100% the
principal amount of such Additional Loan, and after such contribution
has been made, Nortel's and Antec's Interest shall be adjusted based
upon the then current Fair Market Price determined in accordance with
Section 6.04.
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(g) If the Fair Market Price is a negative amount, then the Member
which has elected not to make an Additional Loan or a Mandatory
Participating Interest, as the case may be, shall have the right to reverse
its election within 10 days of the date of the determination of such Fair
Market Price.
(d) In Article III, Sections 3.02(a) and (b) are amended in their
entirety to read as follows:
SECTION 3.02. OFFICERS.
(a) PRESIDENT. The president of the Company (the "President") shall
initially be appointed by Nortel. Each President shall be appointed for an
initial term of two years and may be reappointed. Nortel shall have
the right, after consultation with Antec (provided that such consultation
shall not be required if Antec's Interest is less than 20%), to dismiss any
incumbent President and appoint any successor or replacement President.
(b) VICE PRESIDENT-FINANCE. The Vice President-Finance of the Company
(the "Vice President-Finance") shall initially be appointed by Nortel.
Each Vice President-Finance shall be appointed for an initial term of two
years and may be reappointed. So long as any amount is outstanding under
the Products Loan Agreement, Nortel shall have the right, after
consultation with Antec (provided that such consultation shall not be
required if Antec's Interest is less than 20%), to dismiss any incumbent
Vice President-Finance and appoint any successor or replacement Vice
President-Finance and, thereafter, provided (1) Antec's Interest is 20% or
more and (2) no amount is outstanding under the Products Loan Agreement,
Antec shall have the right, after consultation with Nortel, to dismiss any
incumbent Vice President-Finance and appoint any successor or replacement
Vice President-Finance.
(c) In Article III at the end of Section 3.04, the following is added:
, provided, however, if pursuant to Section 2.05(e) of this
Agreement, the Interest of Antec is reduced to less than (1) 15% then
subparagraphs (b), (e), (f), (g), (i), (k), (l), (o) and (r), and (2) 10%
then subparagraphs (j), (n), (p), (q), (s) and (t), of this Section 3.04
shall be deleted and such subparagraphs shall be added to Section 3.03 of
this Agreement, and the affirmative vote of a majority of the
Representatives of the Members Committee shall be required to approve or
disapprove any matter set forth in any
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such subparagraph without regard to whether or not any such matter has been
specifically provided for in an approved Budget or Business Plan.
(f) In Article VI, Section 6.02(f) is amended in its entirety to read as
follows:
(f)(i) The failure of the Company, which for these purposes means the
occurrence of an Event of Default under the Products Loan Agreement, and (ii)
the failure of the Members to exercise their rights under Section 6.03(a).
(g) In Article VI, the following is added to Section 6.02 as
subparagraph (g):
(g) The election by both Nortel (as Lender) not to make Additional
Loans and Antec not to make a Mandatory Participating Interest (as such terms
are defined in and pursuant to Article XI of the Products Loan Agreement) after
the aggregate principal amount of the Additional Loans then made is $34 million
or more and the Fair Market Price in connection with such elections has been
determined.
(h) In Article VI, Section 6.03 is amended in its entirety to read as
follows:
Section 6.03. Procedure in case of Certain Events of Dissolution.
(a) Upon the occurrence and continuance of either of the events
referred to in Section 6.02(a)(i) or 6.02(f)(i), first Nortel, and then Antec
shall have the right, subject to the conditions specified in Sections
6.03(b)-(d), to purchase the other Member's Interest.
(b) Upon the occurrence and continuance of an Event of Dissolution
referred to in Section 6.02(a) or 6.02(f), Nortel may exercise its right under
Section 6.03(a) by Notice to Antec, indicating its interest in purchasing
Antec's Interest. If the Members are unable to agree on an amount for which
Nortel is willing to buy from Antec, and Antec is willing to sell to Nortel,
Antec's Interest, free and clear of all pledges, liens, security interest or
other encumbrances, Antec's Interest shall be determined pursuant to the second
sentence of Section 6.04(c).
(c) Upon the occurrence and continuance of an Event of Dissolution
referred to in Section 6.02(a) or 6.02(f), provided, Nortel has not given
Notice to Antec that it will exercise its right under Section 6.03(a), Antec
may exercise its right under Section 6.03(a) by Notice to Nortel, indicating
its interest in purchasing Nortel's Interest. If the Members are unable to
agree on an amount for which Antec is willing to buy from Nortel, and Nortel is
willing to sell Antec,
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Nortel's Interest, free and clear of all pledges, liens, security
interests or other encumbrances, Nortel's Interest shall be determined
pursuant to the second sentence of Section 6.04(c).
(d) The closing of the purchase and sale of a Member's Interest under
this Section 6.03 shall be held on a business day designated by the
purchasing Member upon not less than 10 business days' prior written
Notice given on or after the date on which there is a determination of
the purchase price pursuant to Section 6.03(b) or 6.03(c), as the case may
be, but not later than 60 days after such date.
(i) In Article VI, Section 6.04 is amended in its entirety to read as
follows:
Section 6.04. Procedure in Case of Certain Other Events.
(a) Upon the occurrence of the following events or conditions
(the "Triggering Events"):
(i) a material breach of this Agreement that is not
capable of being cured or a material breach of this Agreement by a
Member that is capable of being cured and is not cured within
30 days after Notice thereof (the failure of Antec (I) under the
Products Loan Agreement to satisfy the condition set forth in
either Section 11.02(b)(2)(A) or (B) (provided the aggregate
principal amount of the Additional Loans made by Nortel hereunder
is either (i) less than $34 million or (ii)(A) $34 million or more
and (B) Antec has elected not to make a Mandatory Participating
Interest and a determination of the Fair Market Price in
connection with such election has not then been completed or (II)
to pay the Company $1,000,000 or more for 180 days or more for
amounts due the Company pursuant to any distribution agreements
between Antec and Arris or any other contractual relationship
between Antec and the Company, including any accrued interest for
past due amounts arising therefrom, shall be deemed to constitute
a material breach of this Agreement by Antec that is not capable
of being cured);
(ii) a change of control of a Member;
(iii) the bankruptcy of a Member; or
(iv) the election by either Nortel not to make an
Additional Loan or Antec not to make a Mandatory
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Participating Interest, after the aggregate principal amount
of the Additional Loans then made is $34 million or more;
provided such election is not withdrawn within 15 days from
the date the Fair Market Price has been agreed upon or Notice
has been given to the Members of the determination thereof.
the other Member (the "Non-Affected Member") shall have the right
(x) to request a determination of the Fair Market Price of its
Interest and the other Member's Interest and (y) to purchase, at
the Fair Market Price, all of the other Member's Interest in the
Company, subject, in the case of (i) above, to an adjustment of
minus 30%.
(b) A Member may exercise its rights under Section
6.04(a)(y) by Notice to the other Member between the 16th and the
30th day from the date on which the Fair Market Price has been
agreed upon or Notice has been given to the Members of the
determination thereof.
(c) If the Triggering Event is (i), (ii) or (iii) above, the
fair market price of any Member's Interest (the "Fair Market
Price") shall be the amount obtained by multiplying the total fair
market value of the Company and its subsidiaries, as agreed by the
Members within 30 days of the giving of the Notice referred to in
Section 6.04(b) or, failing such agreement, a determination shall
be made by a nationally recognized investment banking firm
selected by the Non-Affected Member, by such Member's percentage
Interest in the Company. If the Triggering Event is (iv) above,
or Nortel or Antec has availed itself of the right provided to it
under Section 6.03(b) or (c), as the case may be, (I) such
determination shall be made by the banking firm of Xxxxxxxxx,
Lufkin and Xxxxxxxx or other firm mutually agreed to by the
Members; (II) in making the determination such firm, shall assume
that the Company has an indefinite term rather than a finite term
as specified in this Article VI; (III) the determination shall be
made on an "equity" rather than an "enterprise" valuation basis;
(IV) the Fair Market Price of a Member's Interest shall be, if the
difference between the equity value and the amount outstanding
under the Products Loan Agreement ("Balance") is a negative
number, the product of (1) the Balance and (2) a fraction, the
numerator of which, in the case of Antec, shall be the aggregate
amount of Mandatory Participating Interest paid by Antec to the
Lender and the aggregate accrued and unpaid interest on such
amount ("Antec Amount"), and, in the case of Nortel, shall be the
difference between the Balance and the
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Antec Amount ("Member Repayment Amount") and the denominator of
which shall be the Balance, and, if the difference between the
equity value and the Balance is a positive number, the sum of the
(A) Member Repayment Amount and (B) the product of (i) such
difference and (ii) the amount of the Member's Interest (expressed
as a percentage); and (V) the Fair Market Price so determined
shall be valid for one year from the date of its completion unless
a Fair Market Price is required in connection with Section
6.04(a)(y) in which event a new Fair Market Price shall be
determined unless the prior one was completed within the
immediately preceding 90 days. The fees and expenses of such
investment banking firm will be paid by the breaching Member, in
the case of a determination resulting from an event described in
Section 6.04(a)(i) and otherwise such fees and expenses shall be
borne by the Company. For purposes of this Section 6.04, a change
of control shall be deemed to occur upon the direct or indirect
acquisition by any Person (other than an Affiliate of Nortel or
BCE Inc., in the case of Nortel and other than an Affiliate of
Anixter International Inc. or Tele-Communication, Inc. in the
case of Antec) who is a Competitor of the other Member of
Securities representing 20% or more of the voting rights
attached to voting securities of such other Member and of the
power to direct the management of a Member, whether by
ownership of voting securities, by contract or otherwise (a
"Change of Control").
4. With respect to the Antec License Agreement, Arris and Antec
agree that the License Agreement is terminated, and Antec and Nortel agree that
Articles VII and VIII of the Framework Agreement are deleted, as of August 1,
1997, and that all obligations thereunder by each party have been performed,
provided, however, that any rights or obligations intended to survive
termination shall remain in effect.
5. With respect to the Framework Agreement, and as of the effective
date of the International Distribution Agreement, Antec, Nortel, and Arris
agree:
(a) In Article I the following is added under Section 1.01;
"International Distribution Agreement" shall mean the agreement between Nortel
and Product Venture providing for the distribution by Nortel of Product Venture
Products outside North America.
(b) In Article I the definitions of "Related Agreements" and the
"Distribution Agreements" are amended to add the International Distribution
Agreement.
(c) In Article IV, Section 4.02(a) is amended in its entirety to read
as follows:
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Products Venture. (a) The Parents will serve as the exclusive
distributors for all Products Venture Products that are the subject of
Distribution Agreements in the respective territories in the United States and
Canada and to the respective customers as specified in the applicable
Distribution Agreements and in Article VI hereof. Except as provided in the
International Distribution Agreement, the Products Venture may sell directly the
Products worldwide outside North America. Except as specified in the
Distribution Agreements, in Article VI hereof or the Products Manufacturing
Agreement, neither the Parents nor their respective Affiliates shall have the
right to distribute for another Person, sell for their own account, develop or
manufacture (or license the underlying technology for purposes of manufacturing
or sale) any products for use in a Hybrid Fiber Coaxial Cable Network that are
directly competitive with the Products Venture Products in the United States or
Canada. For purposes of this Agreement, the term "directly competitive" shall
not include wireless products, personal communications systems products,
switching products, asynchronous transfer mode products, DPN products or the
product line identified as Cornerstone Multimedia.
(d) Article VI is amended in its entirety to read as follows:
Subject to the Distribution Agreements, the scope of this Agreement and
the Related Agreements for the development, sale and distribution of the
Products Venture Product shall be worldwide. The parties agree that in the
future they will meet and negotiate in good faith with a view to granting, on a
case-by case basis, distribution rights not granted to Nortel under the
International Distribution Agreement to Antec outside the United States and
Canada in cases where Antec can demonstrate a competitive advantage in
distributing the Products Venture Products.
6. With respect to the Nortel License Agreement, and as of the
effective date of the International Distribution Agreement, Arris and Nortel
agree:
(a) The third WHEREAS clause, Article II, Section 2.2(b) and Article
IV, Section 4-1(b) are amended to delete "in the United States of America".
(b) In Article II, Section 2.1 is amended in its entirety to read as
follows:
Nortel, to the extent of its legal right so to do, hereby grants to
PJV, subject to the terms and conditions of this Agreement, a personal),
non-transferable, non-assignable, indivisible, non-exclusive right to use and
modify Hardware Technical Information supplied hereunder solely to manufacture
or have manufactured Hardware for use in Hybrid Fiber-Coax Networks solely for
the sale as permitted in the Framework Agreement, provided:
(a) the right to modify shall be restricted to the development
and implementation of modifications having application in Hybrid
Fiber-Coax Networks; and
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(b) the right to manufacture shall not of itself include the
right to manufacture parts, components, sub-assemblies and
assemblies, except for incorporation into, or for spare and/or
replacement parts for repair of, Hardware.
(c) In Article II, the following is added as a new Section 2.5 and the
existing Section 2.5 is renumbered as Section 2.6.
2.5 Prior to an agreement, between Nortel and PJV providing for the
distribution by Nortel of Licensed Products outside North America, becoming
effective and subsequent to the termination or expiration of such agreement, and
notwithstanding Section 2.4 to the contrary, Nortel shall not use the Hardware
Technical Information and the Operating Software for the purpose of
manufacturing or selling products directly competitive with the Licensed
Products, provided, however, such restriction shall not prevent Nortel from
manufacturing or selling products obtained or licensed from a third party or
developed independently of the Hardware Technical Information and Operating
Software.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
NORTHERN TELECOM INC.
By: /s/ X. X. Xxxxx
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Name: X. X. XXXXX
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Title: President Broadband Network
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ANTEC CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxxx
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Name: XXXXXXXX X. XXXXXXXX
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Title: Exec. Vice President
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ARRIS INTERACTIVE L.L.C.
By: /s/ Xxxxx X. Xxxxx
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Name: XXXXX X. XXXXX
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Title: Vice President Finance
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