Exhibit 10.7
GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT
This GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT (this
"Agreement") is made and entered into as of May 27, 2000 by and between Methode
Electronics, Inc., a Delaware corporation ("Methode") and Stratos Lightwave,
LLC, a Delaware limited liability company ("Stratos LLC"). Capitalized terms
used and not otherwise defined herein are defined in Article 1 of this
Agreement.
RECITALS:
WHEREAS, the Methode Board of Directors has determined that it would be
appropriate and desirable for Methode to contribute and transfer to Stratos LLC,
and for Stratos LLC to receive and assume, directly or indirectly, substantially
all of the assets and liabilities currently associated with the Opto Business;
WHEREAS, the parties intend in this Agreement to set forth the
arrangements between them regarding the contribution and assumption of the
assets and liabilities associated with the Opto Business.
NOW, THEREFORE, in consideration of the foregoing, and the mutual
covenants and agreements set forth below, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings ascribed to them below:
"AFFILIATE" of a Person means any Person Controlling, Controlled by, or
under common Control with that Person; PROVIDED, HOWEVER, that for purposes of
this Agreement (i) Methode and its Subsidiaries (other than Stratos and its
Subsidiaries) shall not be considered Affiliates of Stratos and (ii) Stratos and
its Subsidiaries shall not be considered Affiliates of Methode.
"ANCILLARY AGREEMENTS" has the meaning set forth in the Master
Separation Agreement.
"ASSETS" means and includes all property and rights of every kind,
nature, character and description, tangible and intangible, real, personal or
mixed, wherever located, including, without limitation, the following:
(A) contracts and agreements (whether or not entered into in the
ordinary course of business), including, without limitation,
purchase orders issued or received;
(B) real property and the leasehold interests in real property;
(C) licenses, permits or franchises;
(D) Intellectual Property;
(E) Receivables;
(F) Equipment and all existing warranties and guarantees, if any,
express or implied, with respect to the Equipment for the benefit
of the owner thereof;
(G) Inventory;
(H) books and records, customer lists, vendor lists, catalogs,
research material, technical information, technology,
specifications, designs, drawings, processes, and quality control
data;
(I) sales promotion and selling literature and promotional and
advertising materials;
(J) security (including cash) deposited with third parties and
security bonds;
(K) goodwill and going concern value;
(L) prepaid expenses;
(M) claims against other parties; and
(N) Tax Returns (or copies thereof).
"ASSUMED LIABILITIES" has the meaning set forth in Section 2.2(a) of this
Agreement.
"BUSINESS DAY" means a day other than a Saturday, a Sunday or a day on
which banking institutions located in the State of Illinois are authorized or
obligated by law or executive order to close.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time, together with the rules and regulations promulgated thereunder.
"CONTROL" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or the policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
"Controlling" and "Controlled" have the corollary meanings ascribed thereto.
"DISPUTES" has the meaning set forth in Section 4.1 of this Agreement.
"EFFECTIVE DATE" means May 27, 2000, effective as of 11:59 p.m.,
Central Daylight Savings Time.
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"EQUIPMENT" means equipment, furniture, furnishings, fixtures,
machinery, vehicles, telephones and other tangible personal property.
"EXCLUDED ASSETS" has the meaning set forth in Section 2.1(c) of this
Agreement.
"EXCLUDED LIABILITIES" has the meaning set forth in Section 2.2(b) of
this Agreement.
"INDEBTEDNESS" means: (i) all indebtedness for borrowed money, other
than capitalized leases and similar purchase money obligations; (ii) any other
indebtedness evidenced by a note, bond, debenture or similar instrument; (iii)
all obligations in respect of banker's acceptances; and (iv) any guarantee or
other contingent obligation in respect of any of the foregoing.
"INTELLECTUAL PROPERTY" means the following types of property and all
rights to xxx for past infringement thereof:
(1) United States and foreign registered and unregistered trademarks
and service marks, trademark and service xxxx registrations,
trademark and service xxxx applications for registrations, trade
names, trade dress, logos, internet domain names, web sites and
the like, together with the goodwill associated with such marks,
names, registrations and applications for registration;
(2) United States and foreign patents, patent applications, and all
other patent rights (including any divisions, continuations,
continuations-in-part, reexaminations, extensions, renewals or
reissues thereof);
(3) registered and unregistered copyrights, including all applications
for copyright registrations;
(4) technology, information, know-how and trade secrets, including,
without limitation, recorded knowledge, surveys, engineering
reports, manuals, catalogues, research and development data,
proprietary information, photos, art work, editorial materials,
formats, business plans, market research data, customer lists,
sales data and other similar information; and
(5) licenses, sublicenses, covenants or agreements that relate in
whole or in part to any items of the categories mentioned above in
any of the foregoing clauses (1), (2), (3) and (4).
"INTENDED TRANSFEREE" has the meaning set forth in Section 2.4 of this
Agreement.
"INTENDED TRANSFEROR" has the meaning set forth in Section 2.4 of this
Agreement.
"INVENTORY" means inventories of raw materials, work in progress and
finished goods and other supplies on hand, in transit or on order, including,
without limitation, packaging material, stationery, forms, labels, directories
and promotional materials
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"IPO REGISTRATION STATEMENT" means the registration statement on Form
S-1, Registration No. 333-34864, filed by Stratos with the SEC in connection
with the initial public offering of Stratos Common Stock, as it may be amended.
"MASTER SEPARATION AGREEMENT" means the Master Separation Agreement
dated as of May 28, 2000, by and between Methode and Stratos.
"OPTO ASSETS" has the meaning set forth in Section 2.1(a) of this
Agreement.
"OPTO BUSINESS" means the optical subsystems and components businesses
conducted by Methode and/or the Opto Subsidiaries at any time on or before the
Effective Date, either directly or indirectly, including, without limitation,
all business operations whose financial performance is reflected in the Stratos
Financial Statements.
"OPTO SUBSIDIARIES" means (i) Bandwidth Semiconductor, LLC, a Delaware
limited liability company; (ii) Methode Communication Modules, Inc., a Delaware
corporation; (iii) MP Optical Communications, LLC, an Illinois limited liability
company; (iv) Stratos, Ltd., a corporation organized under the laws of the
United Kingdom; and (v) Stratos, LLC.
"PERSON" means an individual, partnership, limited liability company,
joint venture, corporation, trust, unincorporated association, any other entity,
or any government or any department or agency or other unit thereof.
"RECEIVABLES" means all accounts and notes receivable and other
receivables (whether or not billed).
"REPRESENTATIVE" has the meaning set forth in the Master Separation
Agreement.
"REQUIRED TRANSFER CONSENT" has the meaning set forth in Section 2.4 of
this Agreement.
"RETAINED DISREGARDED ENTITY" means any entity that (i) is disregarded
as an entity separate from its owner for U.S. federal income tax purposes, (ii)
the interests in which are owned by Methode, and (iii) the interests in which
will not be transferred to Stratos LLC pursuant to this Agreement.
"SEC" means the Securities and Exchange Commission.
"STRATOS" means Stratos Lightwave, Inc., a Delaware corporation.
"STRATOS FINANCIAL STATEMENTS" means the financial statements
(including the related notes) of Stratos for the period ended April 30, 2000, as
set forth in the IPO Registration Statement.
"SUBSIDIARY" means with respect to any specified Person, any
corporation or other legal entity of which such Person or any of its
Subsidiaries Controls or owns, directly or indirectly,
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more than fifty percent (50%) of the stock or other equity interest entitled to
vote with respect to the election of members to the board of directors or
similar governing body; PROVIDED, HOWEVER, that for the purposes of this
Agreement, neither Stratos nor any of the Subsidiaries of Stratos shall be
deemed to be Subsidiaries of Methode or of any of the Subsidiaries of Methode.
"TAX" or "TAXES" have the meaning set forth in the Tax Sharing
Agreement.
"TAX RETURN" or "TAX RETURNS" has the meaning set forth in the Tax
Sharing Agreement.
"TAX SHARING AGREEMENT" means the Tax Sharing and Indemnification
Agreement to be entered into by and between Methode and Stratos.
"TRANSFER OBSTACLE" has the meaning set forth on Section 2.4 of this
Agreement.
"TRANSFERRED DISREGARDED ENTITY" means any entity that (i) is
disregarded as an entity separate from its owner for U.S. federal income tax
purposes, (ii) all of the interests in which are owned by Methode, and (iii) all
of the interests in which will be transferred to Stratos LLC pursuant to this
Agreement.
"TREASURY REGULATIONS" means the regulations promulgated under the
Code, and any successor provisions thereof, as in effect for the relevant
taxable period.
ARTICLE 2
CONTRIBUTION AND ASSUMPTION
2.1. TRANSFER OF ASSETS.
(a) TRANSFER OF OPTO ASSETS. As of the Effective Date, Methode hereby
conveys, assigns, transfers and delivers to Stratos LLC all of its right, title
and interest in and to the Opto Assets.
For the purposes of this Agreement, the term "Opto Assets" shall mean,
except for the Excluded Assets set forth in Section 2.1(c), all Assets that are
(x) owned by Methode or with respect to which Methode has the right to transfer
after making all commercially reasonable efforts referred to in Section 2.4(a),
and (y) used primarily in, relate primarily to or arise directly from the Opto
Business. For avoidance of doubt, but not by way of limitation of the foregoing,
the following specifically enumerated assets are included within the Opto
Assets:
(i) contracts set forth on Schedule 2.1(a)(i);
(ii) real property listed on Schedule 2.1(a)(ii), including all
buildings, structures and other improvements situated thereon;
(iii) management information systems and software listed on Schedule
2.1(a)(iii);
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(iv) Intellectual Property listed on Schedule 2.1(a)(iv);
(v) all right, title and interest in and to all monetary and other
awards and judgments arising out of the litigation described on
Schedule 2.1(a)(v); and
(vi) the Tax Returns (or copies thereof) of Methode with respect to or
that include Taxes relating solely to, arising solely out of, or
incurred solely in connection with, the Opto Business as conducted
through the Effective Date.
(b) STRATOS LLC ACKNOWLEDGES AND AGREES THAT THE FOREGOING TRANSFERS
AND SALES ARE BEING MADE "AS IS" AND THAT NEITHER METHODE NOR ANY SUBSIDIARY OF
METHODE HAS MADE OR WILL MAKE ANY WARRANTY, EXPRESSED OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, WITH RESPECT TO ANY ASSET.
(c) EXCLUDED ASSETS. Notwithstanding anything to the contrary in
paragraph (a) above, it is expressly understood and agreed that the Opto Assets
shall not include the following assets (the "Excluded Assets"):
(i) Assets used (partially or entirely) or owned in connection with
any businesses and operations of Methode and its Affiliates (other
than the Opto Business), unless specifically enumerated in Section
2.1(a) and the related schedules;
(ii) management information systems and software listed on Schedule
2.1(c)(ii);
(iii) Methode's right, title and interest in and to the "Methode" name
and any Intellectual Property that is not related to the Opto
Business;
(iv) the Tax Returns, corporate minute books and stock ledgers of
Methode, except those specifically included in the definition of
Opto Assets;
(v) Methode's capital stock and/or other equity interests in Stratos
and the Opto Subsidiaries; and
(vi) all intercompany receivables from Methode and its Affiliates as of
the Effective Date.
(d) INSTRUMENTS OF CONVEYANCE AND TRANSFER. On or about the Effective
Date, Methode shall:
(i) deliver or cause to be delivered to Stratos LLC such deeds, bills
of sale, endorsements, consents, assignments, and other good and
sufficient instruments of conveyance and assignment, all in
recordable form, where applicable (including such notarizations
and/or acknowledgments as Stratos LLC shall
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reasonably request), as are required or advisable under local
custom and practice to vest in Stratos LLC all right, title and
interest of Methode in and to the Opto Assets; and
(ii) deliver or otherwise transfer to Stratos LLC all contracts,
agreements, commitments, books, records, files, certificates,
licenses, permits, plans and specifications and other data
included in the Opto Assets, including, without limitation,
computer tapes and computer-generated records.
Notwithstanding the foregoing clause (i), with respect to the
Intellectual Property, Methode shall deliver to Stratos LLC as of the Effective
Date documents for the transfer and assignment of the Intellectual Property
included in the Opto Assets and shall also deliver to Stratos LLC good and
sufficient instruments of conveyance and assignment, all in recordable form and
including such notarizations and/or acknowledgments as Stratos LLC shall
reasonably request, for all registered trademarks, patents, registered
copyrights and pending applications with respect to any of the foregoing.
(e) FURTHER ASSURANCES. From time to time after the Effective Date,
Methode and its Affiliates shall execute, acknowledge and deliver, or cause to
be executed, acknowledged and delivered, such other instruments of conveyance,
assignment, transfer and delivery and will take or cause to be taken such other
actions as Stratos LLC may reasonably request in order more effectively to sell,
convey, assign, transfer, and deliver to Stratos LLC any of the Opto Assets, or
to enable Stratos LLC to protect, exercise and enjoy all rights and benefits of
Methode with respect thereto, and as otherwise may be appropriate to carry out
the transactions herein contemplated.
2.2. ASSUMPTION OF LIABILITIES.
(a) ASSUMED LIABILITIES.
(i) Subject to subsection 2.2(a)(ii) below, as of the Effective Date,
Stratos LLC shall assume and agree to pay, perform and discharge when due, all
liabilities and obligations of Methode (other than the Excluded Liabilities)
relating to or arising out of the Opto Business, whether direct or indirect,
absolute or contingent, contractual, tortious or otherwise, known or unknown,
including, without limitation, all liabilities relating to or arising out of the
Opto Business as conducted through the Effective Date that are unknown to
Methode and/or unrealized as of the Effective Date and that become known to
Methode or are realized or otherwise arise after the Effective Date. For
purposes of this subsection 2.2(a)(i), any liabilities reflected on the books
and records of Methode between Methode and any unincorporated branch or division
of Methode or between two unincorporated branches or divisions of Methode shall
not be treated as liabilities. No new or additional liabilities of the type
described in the immediately preceding sentence shall be created or reflected on
the books and records of Methode during any period (or portion thereof)
beginning on or after the Effective Date and ending on or before the execution
of the Master Separation Agreement. The liabilities and
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obligations assumed by Stratos LLC in accordance with this Section 2.2 (other
than the Excluded Liabilities described below) are sometimes hereinafter
referred to as the "Assumed Liabilities."
(ii) Prior to the Effective Date, Methode shall cancel, or cause to be
cancelled, any intercompany account owing from any Transferred Disregarded
Entity to Methode or to any Retained Disregarded Entity. As a result of such
cancellation, Stratos LLC shall not assume pursuant to the transactions
contemplated hereunder any liability for any intercompany account of the type
described in the immediately preceding sentence. In addition, prior to the
Effective Date, each Transferred Disregarded Entity shall cancel, or cause to be
cancelled, any intercompany account owing from Methode or any Retained
Disregarded Entity to such Transferred Disregarded Entity.
(b) EXCLUDED LIABILITIES. Notwithstanding the foregoing, Stratos LLC
shall not assume any of the following liabilities or obligations (the "Excluded
Liabilities"):
(i) any liability or obligation in respect of any Indebtedness of
Methode and its Affiliates;
(ii) any liability for or obligation in respect of Taxes, except as
otherwise provided in the Tax Sharing Agreement;
(iii) except as specifically provided in the Ancillary Agreements or
related to accrued reimbursement, welfare, vacation and similar
benefit obligations incurred in the ordinary course of business
and reflected in the Stratos Financial Statements, any
liabilities or obligations relating to or arising under any
employee or retirement benefit plan, program, arrangement or
agreement maintained or contributed to by Methode or its
Affiliates;
(iv) any liabilities or obligations of Methode that are not
incidental to or do not arise out of or were not incurred with
respect to the Opto Business; and
(v) any other liabilities listed on Schedule 2.2(b).
2.3. METHODS OF TRANSFER AND ASSUMPTION.
(a) Pursuant to Section 2.1, the transfer and assumption of all of the
Opto Assets and Assumed Liabilities shall be made effective as of the Effective
Date; PROVIDED, HOWEVER, that circumstances may require the transfer of certain
Opto Assets and the assumption of certain Assumed Liabilities to occur in such
other manner and at such other time as the parties shall agree.
(b) The parties intend to complete the assignment and transfer of all
Opto Assets and the transfer and assumption of all Assumed Liabilities effective
as of the Effective Date. Notwithstanding the foregoing, if any Opto Asset
cannot be assigned or transferred by Methode or any Assumed Liability cannot be
transferred by Methode or assumed by Stratos LLC on or
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prior to the Effective Date for a reason set forth in Section 2.4, Section 2.4
shall govern the parties rights and obligations with respect to such Opto Asset
or such Assumed Liability. In addition to those transfers and assumptions
accurately identified and designated by the parties to take place but which the
parties are not able to effect prior to the Effective Date, there may exist (i)
assets (including Assets) that the parties discover were, contrary to the
agreements between the parties, by mistake or omission, transferred to Stratos
LLC (in which Stratos LLC never obtained any beneficial interest) or retained by
Methode or (ii) liabilities (including Assumed Liabilities) that the parties
discover were, contrary to the agreements between the parties, by mistake or
omission, assumed by Stratos LLC or not assumed by Stratos LLC. The parties
shall cooperate in good faith to effect the transfer or re-transfer of such
assets, and/or the assumption or re-assumption of such liabilities, in any case
as soon as reasonably practicable, to or by the appropriate party and shall not
use the determination of remedial actions contemplated herein to alter the
original intent of the parties hereto with respect to the Opto Assets to be
transferred to or Assumed Liabilities to be assumed by Stratos LLC. Each party
shall reimburse the other or make other financial or other adjustments to remedy
the effect of any mistakes or omissions relating to any of the Assets
transferred hereby or any of the Assumed Liabilities assumed hereby.
(c) Each party hereto shall execute and deliver to each other party all
such documents, instruments, certificates and agreements in appropriate form,
and shall make all filings and recordings and take all such other actions, as
shall be necessary or reasonably requested by such other party, whether before
or after the Effective Date, in order to give full effect to and to evidence and
perfect the transfer and contribution of the Opto Assets and the assumption of
the Assumed Liabilities as contemplated hereby. However, Stratos LLC
acknowledges and agrees that neither Methode nor any of its Subsidiaries will
comply with the provisions of any bulk transfer law or similar laws of any
jurisdiction giving creditors of a transferor rights against the transferee in
connection with the transfer of any Opto Asset.
2.4. NONASSIGNABLE ASSETS AND ASSUMED LIABILITIES. Notwithstanding
anything contained herein to the contrary, this Agreement shall not constitute
an agreement to assign or transfer any Opto Asset or to transfer and assume any
Assumed Liability if an assignment or attempted assignment or transfer or
attempted transfer and assumption of the same without the consent of another
Person would constitute a breach of any contract or agreement or in any way
impair the rights of a party thereunder or give to any third party any rights
with respect thereto. If any such consent (a "Required Transfer Consent") is not
obtained and/or if for any other reason outside the control of the parties or
their Affiliates (a "Transfer Obstacle") an attempted assignment or attempted
transfer and assumption would otherwise be ineffective or would impair the
rights of the party attempting to make such assignment or transfer (the
"Intended Transferor") under any such contract or agreement so that the party
entitled to the benefits and responsibilities of such attempted assignment or
attempted transfer and assumption (the "Intended Transferee") would not receive
all such rights and responsibilities, then:
(a) the Intended Transferor shall use all commercially reasonable
efforts to obtain the Required Transfer Consent and/or eliminate the Transfer
Obstacle.
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(b) until the Required Transfer Consent is obtained and/or the
Transfer Obstacle is eliminated in accordance with subsection (a) above and
the assignment and transfer of the applicable Opto Asset or the transfer and
assumption of the Assumed Liability has been effected in accordance with
subsection (c) below and the other provisions of this Agreement:
(i) the Intended Transferor shall use all commercially reasonable
efforts to provide or cause to be provided to the Intended
Transferee, to the extent permitted by law, the benefits or
liabilities of any such Opto Asset or Assumed Liability and the
Intended Transferor shall promptly pay or cause to be paid to
the Intended Transferee when received all moneys received by the
Intended Transferor with respect to any such Opto Asset.
(ii) in consideration thereof the Intended Transferee shall pay,
perform and discharge on behalf of the Intended Transferor all
of the Intended Transferor's liabilities thereunder in a timely
manner and in accordance with the terms thereof which it may do
without breach; and
(iii) the Intended Transferor shall take such other actions as may
reasonably be requested by the Intended Transferee in order to
place the Intended Transferee, insofar as reasonably possible,
in the same position as if such Opto Asset or Assumed
Liability had been assigned or transferred as contemplated
hereby and so all the benefits and burdens relating thereto,
including possession, use, risk of loss, potential for gain
and dominion, control and command, shall inure to the Intended
Transferee.
(c) If and when any Required Transfer Consent is obtained or any
Transfer Obstacle is eliminated, the assignment of the applicable Opto Asset or
the transfer and assumption of the Assumed Liability shall be effected as soon
as practicable in accordance with the terms of this Agreement.
2.5. TRANSFER COSTS. Stratos LLC shall bear all costs related to the
transfer of the Opto Assets from Methode to Stratos LLC and the assumption by
Stratos LLC of all Assumed Liabilities, including, without limitation, any and
all: (i) moving expenses; (ii) transfer taxes; (iii) expenses incurred in
connection with any notices to customers, suppliers or other third parties
regarding such transfer of Opto Assets or such assumption of Assumed
Liabilities; (iv) fees incurred in connection with the transfer of any licenses,
permits or franchises from Methode to Stratos LLC or the obtaining of any new
(or the re-issuance of any existing) licenses, permits or franchises in the name
of Stratos LLC; (v) fees and expenses incurred in connection with the assignment
or transfer of any contracts, agreements or Intellectual Property from Methode
to Stratos LLC; (vi) any recording or other fees, Taxes, charges or assessments
incurred in connection with the transfer of any real property from Methode to
Stratos LLC; and (vii) the transfer of any employee of Methode to Stratos LLC.
Stratos LLC hereby agrees to reimburse Methode promptly upon request, for any
cost, including, without limitation, any of the foregoing costs (including any
applicable Taxes, fees and penalties assessed in connection with any of the
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foregoing), incurred by Methode in connection with the transfer of Opto Assets
from Methode to Stratos LLC or the assumption by Stratos LLC of any Assumed
Liability.
ARTICLE 3
LITIGATION
3.1. TRANSFER OF EXISTING LITIGATION. As of the Effective Date, all
liabilities and legal responsibilities for the litigation matters identified on
Schedule 2.1(a)(vi) shall be transferred from Methode to Stratos LLC. As of the
Effective Date, Stratos LLC will assume the management of such litigation
matters and Stratos will indemnify Methode with respect to such litigation
matters as provided in Section 5.2 of the Master Separation Agreement.
3.2. COOPERATION. Methode and Stratos LLC agree to cooperate with each
other in connection with the litigation covered by Section 3.1. Such cooperation
shall include, without limitation, providing each other with access to
information and personnel and making its personnel available as witnesses in
connection with such litigation, all as provided in Article 6 of the Master
Separation Agreement.
ARTICLE 4
MISCELLANEOUS
4.1. DISPUTE RESOLUTION. Except as otherwise set forth in the Ancillary
Agreements, resolution of any and all disputes arising from or in connection
with this Agreement, whether based on contract, tort, or otherwise
(collectively, "Disputes"), shall be exclusively governed by and settled in
accordance with the provisions of this Section 4.1. The parties hereto shall use
all commercially reasonable efforts to settle all Disputes without resorting to
mediation, arbitration, litigation or other third party dispute resolution
mechanisms. If any Dispute remains unsettled, the parties hereby agree to
mediate such Dispute using a mediator reasonably acceptable to all parties
involved in such Dispute. If the parties are unable to resolve such dispute
through mediation, each party will be free to commence proceedings for the
resolution thereof. No party shall be entitled to consequential, special,
exemplary or punitive damages.
4.2. ENTIRE AGREEMENT. Except as otherwise set forth in this Agreement,
this Agreement and the Ancillary Agreements shall constitute the entire
agreement between the parties hereto with respect to the subject matter hereof
and shall supersede all prior agreements and understandings, whether written or
oral, between the parties with respect to such subject matter.
4.3. AUTHORITY. Each of the parties hereto represents to the other
that: (a) it has the corporate power and authority to execute, deliver and
perform this Agreement; (b) the execution, delivery and performance of this
Agreement by it has been duly authorized by all necessary corporate action; (c)
it has duly and validly executed and delivered this Agreement; and (d) this
Agreement is a legal, valid and binding obligation, enforceable against it in
accordance with its terms subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and general equity principles.
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4.4. NOTICES. All notices and other communications hereunder shall be
in writing and shall be delivered in person, by telecopy, by express or
overnight mail delivered by a nationally recognized air courier (delivery
charges prepaid), or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties as follows:
If to Methode: Methode Electronics, Inc.
0000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
If to Stratos LLC: Stratos Lightwave, LLC
0000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Telecopy No.: (000) 000-0000
or to such other address as the party to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
Any notice or communication delivered in person shall be deemed effective on
delivery or when delivery is refused. Any notice or communication sent by
telecopy or by air courier shall be deemed effective on the first Business
Day at the place at which such notice or communication is received following
the day on which such notice or communication was sent.
4.5. AMENDMENT AND MODIFICATION. This Agreement or the Ancillary
Agreements may not be amended or modified in any respect except by a written
agreement signed by both of the parties hereto.
4.6. BINDING EFFECT; ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon the parties hereto and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. Except with respect to a merger of either party with another Person,
neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by either party hereto without the prior written consent of
the other party, which consent shall not be unreasonably withheld or delayed.
4.7. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same agreement. The Agreement may be
delivered by facsimile transmission of a signed copy thereof.
4.8. WAIVER. The observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) by the party entitled to enforce such term, but such waiver shall
be effective only if it is in writing signed by the party against which such
waiver is to be asserted. Unless otherwise expressly provided in this Agreement,
no delay or omission on the part of any party in exercising any right under this
Agreement shall operate as a waiver thereof, nor shall any waiver on the part of
any party of any
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right under this Agreement operate as a waiver of any other right under this
Agreement nor shall any single or partial exercise of any right preclude any
other or further exercise thereof or the exercise of any other right under this
Agreement. No failure by either party to take any action or assert any right
hereunder shall be deemed to be a waiver of such right in the event of the
continuation or repetition of the circumstances giving rise to such right unless
expressly waived in writing by the party against whom the existence of such
waiver is asserted.
4.9. SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
4.10. HEADINGS. The headings of the sections and subsections of this
Agreement are inserted for convenience of reference only and shall not
constitute a part hereof.
4.11. GOVERNING LAW. This Agreement shall be governed, construed and
enforced in accordance with the internal laws of the State of Illinois,
excluding any choice of law rules which may direct the application of the laws
of another jurisdiction.
4.12. CONSENT TO EXCLUSIVE JURISDICTION. Any action, suit or proceeding
arising out of any claim that the parties cannot settle through good faith
negotiations shall be heard and determined in any Illinois state or federal
court sitting in Chicago. Each of the parties hereto hereby irrevocably and
unconditionally: (i) submits to the exclusive jurisdiction of any Illinois state
or federal court sitting in Chicago for any such action, suit or proceeding;
(ii) waives, and agrees not to plead or to make, any objection to the venue of
any such action, suit or proceeding in the above-named courts; (iii) waives, and
agrees not to plead or to make, any claim that any such action, suit or
proceeding brought in the above-named courts has been brought in an improper or
otherwise inconvenient forum; and (iv) waives, and agrees not to plead or to
make, any claim that its is not subject personally to the jurisdiction of the
above-named courts.
4.13. NO TAX ELECTION. None of Methode or any of its Affiliates
(including, without limitation, Stratos LLC), Stratos or any of its Affiliates
or any of their respective Representatives shall make any election under
Treasury Regulations promulgated under Section 7701 of the Code (or any
successor regulation or provision), or otherwise take any action, or fail to
take any action, that could cause Stratos LLC not to be disregarded as an entity
separate from its owner for U.S.
federal income tax purposes.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed and delivered as of the day and date first written above.
METHODE ELECTRONICS, INC.
By: /s/ Xxxxxxx X. XxXxxxxx
--------------------------------
Xxxxxxx X. XxXxxxxx
Chairman
STRATOS LIGHTWAVE, LLC
By: /s/ Xxxxx X. XxXxxxxx
--------------------------------
Xxxxx X. XxXxxxxx
President and Chief Executive Officer
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