Exhibit 2.1
DATED November 2, 2001
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(1) ADAPTIVE BROADBAND LIMITED (IN ADMINISTRATION)
and
(2) ADAPTIVE BROADBAND CORPORATION
and
(3) XXXXXX XXXXXXX and XXX XXXXXX
-----------------------------------------
AGREEMENT FOR SALE OF BUSINESS
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Xxxxxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxxx Xxxx
Xxxxxxxxx XX0 0XX
Tel: 00000 000000
Fax: 00000 000000
Our Ref: JAA/RCE/44416.1
THIS AGREEMENT is made the 2nd day of November, 2001
BETWEEN:
1 ADAPTIVE BROADBAND LIMITED in administration a company incorporated in
England (registered number 3552746) whose registered office is at 000
Xxxxxx, Xxxxxx XX0X 0XX acting by one of its joint administrators XXXXXX
XXXXXXX and XXX XXXXXX of Xxxxxx Xxxxxxxx, XX Xxx 00, 000 Xxxxxx, Xxxxxx
XX0X 0XX ("the Vendor");
2 ADAPTIVE BROADBAND CORPORATION a company incorporated in Delaware, USA
having its principal place of business at 0000 Xxxxxxx Xxxxx, Xxxxx 000,
Xxx Xxxx, XX 00000 XXX ("the Purchaser"); and
3 XXXXXX XXXXXXX and XXX XXXXXX ("the Administrators") both of Xxxxxx
Xxxxxxxx, XX Xxx 00, 000 Xxxxxx, Xxxxxx XX0X 0XX.
RECITALS
1 The Administrators were on 23 August 2001 appointed administrators of the
Vendor by order of the High Court of Justice in England ("the
Administration Order") pursuant to a petition presented on 16 August 2001
(matter number 4998 of 2001).
2 The Vendor has agreed to sell to the Purchaser and the Purchaser has
agreed to purchase such right title and interest as the Vendor may have
in certain of its assets with the intent that its business shall be
transferred to the Purchaser as a going concern upon the terms and
subject to the conditions contained in this Agreement.
3 The Purchaser enters into this Agreement having made such inspection of
the assets of the Vendor as it thinks fit in full knowledge and
acceptance of the terms of this Agreement.
4 The Purchaser is to sell such assets as it purchases from the Vendor to
Xxxxxxx (as defined in clause 1.1 herein) on substantially the terms set
out in Schedule 6 hereto.
5 The Purchaser will not have any liabilities or obligations under this
Agreement to any other parties save that it will direct (in accordance
with clauses 3 and 5.2 herein) Xxxxxxx to pay the Vendor the sums
referred to in clause 3.
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NOW IT IS HEREBY AGREED as follows:
1 INTERPRETATION
1.1 In this Agreement the following terms shall have the following meanings:-
"the Assets" the assets of the Vendor agreed to be
sold pursuant to clause 2
"the Book Debts" all sums of money owing or which become
owing to the Vendor on or after the
Transfer Date in respect of goods sold
or services rendered on or before the
Transfer Date
"the Business" the business of the Vendor being
research and development of wireless
point to multipoint broadband
communications
"Employees" means the employees of the Vendor listed
in Schedule 4
"the Goodwill" the goodwill of the Vendor in relation
to the Business together with the
exclusive right (so far only as the
Vendor can confer it) for the Purchaser
to represent itself as carrying on the
Business in succession to the Vendor and
to trade under the name "Adaptive
Broadband"
"the Intellectual Property Rights"
all United States, foreign and
international patents and patent rights
(including all patents, patent
applications, and any and all divisions,
continuations, continuations-in-part,
reissues, re-examinations and extensions
thereof, and all invention registrations
and invention disclosures); all
trademarks and trademark rights, service
marks and service xxxx rights, trade
names and trade name rights, service
names and service name rights (including
all goodwill, common law rights and
governmental or other registrations or
applications for registration pertaining
thereto), designs, trade dress, brand
names, business and product names,
Internet domain names, logos and
slogans; all works of authorship,
copyrights and copyright rights
(including all
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common law rights and governmental or
other registrations or applications for
registration pertaining thereto, and
renewal rights therefor); all sui
generis database rights, ideas,
inventions, (whether patentable or not),
invention disclosures, improvements,
technology, know-how, show-how, trade
secrets, formulas, systems, processes,
designs, methodologies, industrial
models, databases, content, graphics,
technical drawings, statistical models,
algorithms, modules, computer
programmes, technical documentation,
business methods, work product,
intellectual and industrial property
licenses, proprietary information,
customer lists, and documentation
relating to any of the foregoing; all
mask works, mask work registrations and
applications therefor; all industrial
designs and any registrations and
applications therefor throughout the
world; all computer software including
all source code, object code, firmware,
development tools, files, records and
data, and all media on which any of the
foregoing is recorded; all similar,
corresponding or equivalent rights to
any of the foregoing; and all
documentation related to any of the
foregoing, including without limitation
those listed on Schedule 1 hereto
"Xxxxxxx" means Xxxxxxx Associates Inc or any
of its subsidiaries such other party as
the United States Bankruptcy Court for
the Northern District of California may
impose as the purchaser pursuant to the
agreement referred to in clause 4.2.1 of
this Agreement
"the Plant and Equipment" all fixed assets, machinery, equipment,
development equipment, test equipment,
tools, furniture, tenant's fixtures,
computers, printers, computer disks and
other computer storage devices, computer
software, supplies, spare and
replacement parts used in prototype
development, works in progress and
prototypes of the Vendor including,
without limitation, those fixed assets
listed in Schedule 2
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"the Transfer Date" the day upon which the last of the
Condition precedents listed in clause 4
to be met is met
"the Vendor Records" originals or copies of all books and
records, correspondence, files, manuals,
drawings, diagrams, computer programs,
data and other documentation directly
relating to the Business, reasonably
required by the Purchaser (other than
solicitor-client privileged materials
and files of Employees and other books
and records not directly related to the
assets being sold to the Purchaser)
1.2 The headings to the clauses of this Agreement are for convenience only
and shall not affect the construction of this Agreement.
1.3 In this Agreement unless the context otherwise requires:
1.3.1 references to this Agreement include the Schedules and appendices
(if any);
1.3.2 references to clauses and Schedules are to be construed as
references to the clauses of and Schedules to this Agreement;
1.3.3 references to the singular shall include the plural and vice
versa;
1.3.4 all references to a statutory provision shall be construed as
including references to any statutory modification, consolidation
or re-enactment (whether before or after today's date) for the
time being in force, all statutory instruments or orders made
pursuant to it and any statutory provisions of which it is a
consolidation re-enactment or modification.
2 SALE OF ASSETS
2.1 Subject as provided in this Agreement the Vendor shall sell and the
Purchaser shall purchase with effect from close of business on the
Transfer Date such right title and interest as the Vendor may have in and
to:-
2.1.1 the Goodwill;
2.1.2 the Intellectual Property Rights of the Vendor;
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2.1.3 the Plant and Equipment; and
2.1.4 the Vendor Records
to the intent that with effect from the close of business on the Transfer
Date the Purchaser shall be enabled to carry on and continue the Business
as a going concern in succession to and to the exclusion of the Vendor.
2.2 There shall be excluded from the sale and purchase under this Agreement
all other assets of the Vendor not expressly referred to in clause 2
including without limitation those listed in Schedule 3.
2.3 The parties hereto acknowledge and agree that the Purchaser's obligation
to proceed with the sale contemplated by this Agreement is subject to the
approval of the Court (as defined in clause 4.2).
3 PRICE AND VALUE ADDED TAX
3.1 The price for the sale and purchase of the Assets is US$1,000,000 (or, if
higher, 9.8% of the Closing Date Payment (as defined in clause 2.2(a) of
the agreement of even date between the Purchaser and Xxxxxxx, provided
that any break-up fee, expense reimbursement or other obligations which
must be paid by the Purchaser shall be deducted from such Closing Date
Cash Payment) (exclusive of any applicable Value Added Tax) and shall be
apportioned as follows:-
3.1.1 for the Goodwill the sum of US$59,999;
3.1.2 for the Intellectual Property Rights the sum of US$200,000;
3.1.3 for the Plant and Equipment the sum of US$740,000;
3.1.4 for the Vendor Records the sum of US$1.
Any additional sum payable will be apportioned to Plant and Equipment
3.2 The price referred to in clause 3.1 above may be adjusted if agreed
between the parties to this Agreement if not all the Assets are to be
sold at completion. However, this clause shall only be effective if the
ultimate purchaser is not Xxxxxxx Associates
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Inc and any price adjustment is at the reasonable discretion of the
Vendor (acting by the Administrators). If the Purchaser and the Vendor
cannot agree a suitable variation to the terms of this Agreement then the
Purchaser shall be under no obligation to complete the transaction
contemplated by this Agreement.
3.3 In addition the Purchaser shall pay Value Added Tax of US$175,000 (or, if
higher, 17.5% of the amount as may need to be paid pursuant to clause
3.1) at Completion on production by the Vendor of a proper Value Added
Tax invoice.
3.4 In addition the Purchaser shall pay a contribution of 50% of the amount
necessary, (up to a maximum of US$150,000), towards the compromise of the
phantom share option scheme claims of those employees of the Vendor who
enter into compromise agreements in substantially the form set out in
Schedule 5 at Completion.
3.5 The Purchaser's sole obligation hereunder shall be to direct that the
payments referred to in this clause 3 are paid by Xxxxxxx out of the
consideration payable by Xxxxxxx to the Purchaser under the terms of the
sale referred to in Recital 4 above.
4 CONDITIONS PRECEDENT
The sale of the Assets by the Vendor to the Purchaser shall be subject to
satisfaction of the following conditions precedent:
4.1 Each of the Employees (except in relation to any who have voluntarily
ceased to be Employees) shall enter into a compromise agreement in
substantially the form set out in Schedule 5 with the Vendor, the
Purchaser, the Administrators, Xxxxxxx, Axxcelera Broadband Wireless, Inc
and Axxcelera Broadband Wireless UK Limited, and shall enter into
employment agreements with Axxcelera Broadband Wireless UK Limited in a
form satisfactory to Xxxxxxx.
4.2 Evidence shall have been produced to the Vendor and the Purchaser that
the United States Bankruptcy Court for the Northern District of
California ("the Court") has consented to the following:
4.2.1 The sale by the Purchaser on substantially the terms of the draft
agreement set out in Schedule 6 of certain assets to Xxxxxxx; and
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4.2.2 The purchase by the Purchaser (on substantially the terms of this
Agreement) of the Assets referred to herein.
4.3 The production to the Vendor of a deed of indemnity in substantially the
form set out in Schedule 7 duly executed by all the parties to it.
4.4 The production to the Vendor of a duly executed deed of subordination by
the Purchaser in substantially the form set out in Schedule 8.
4.5 As considered appropriate by the Administrators (who shall provide a copy
of the same to Xxxxxxx) the approval by a meeting of creditors convened
under section 23 of the Insolvency Xxx 0000 and/or from a Creditors'
Committee formed under section 26 of the Insolvency Xxx 0000 and/or from
the High Court of England and Wales consenting to the sale of the Assets
of the Vendor on substantially the terms of this Agreement.
4.6 The Purchaser shall deposit with either the Administrator or the Vendor's
solicitors (Taylor Vinters) such amount (in cleared funds) as is required
to satisfy the loyalty bonus payments of those employees of the Vendor
who enter into compromise agreements in substantially the form set out in
Schedule 5 at Completion.
5 COMPLETION
5.1 Completion of the sale and purchase of the Assets shall take place on the
Transfer Date at the offices of the Vendor's solicitors or otherwise as
the parties shall agree when the Vendor shall deliver to the Purchaser;
5.1.1 possession of those of the Assets title to which is capable of
passing by delivery including the Vendor Records;
5.1.2 a release by the Purchaser of the Assets from the charges
contained in the debenture dated 25 July 2001 granted by the
Vendor to the Purchaser;
5.1.3 an assignment of the Intellectual Property Rights in the form
contained in Schedule 9 duly executed by the Vendor; and
5.1.4 all documents comprising or relating to the Intellectual Property
Rights in the possession of or under the control of the Vendor or
the Administrators.
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5.2 Subject to the performance of the Vendor's obligations under clause 5.1,
the Purchaser shall arrange for the consideration and Value Added Tax
(payable by Xxxxxxx) and the sum referred to in clause 3.4 (or such
higher amount as may be determined under clause 3) to be remitted by way
of telegraphic transfer direct to the following bank account:
Bank: Lloyds TSB Bank plc
Xxxxxx Xxxxxx
Xxxxxxxxx
XX0 0XX
Sort Code: 30-91-56
Account Name: Taylor Vinters Client Call Account
Account Number: 00000000
5.3 Each party to this Agreement agrees to release any and all claims it may
have against Adaptive Broadband Company Limited, a Republic of Ireland
private limited company having its principal place of business at Xxxxx
0, Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxxxx, Xxxxxx 0, Xxxxxxx.
5.4 The Vendor agrees to use its reasonable endeavours (without incurring any
additional liabilities) to terminate any and all inter-company agreements
relating to any Intellectual Property Rights if requested to do so by the
Purchaser or Xxxxxxx.
5.5 The Administrators, acting as agents for the Vendor, shall pay all sums
due to the employees of the Vendor who enter into compromise agreements
at Completion.
6 TITLE AND RISK
6.1 Title in the Assets to be sold pursuant to this Agreement shall not pass
until the Vendor's solicitors have received the consideration and Value
Added Tax and the sum referred to in clause 3.4 (or such higher amount as
may be determined under clause 3) in cleared funds.
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6.2 Risk shall pass on completion and neither the Vendor nor the
Administrators will have any liability as regards storage, security or
any liability or obligation towards the Assets arising after the Transfer
Date.
7 BOOK DEBTS
7.1 The Vendor shall continue to collect the Book Debts but may not take
legal proceedings for recovering such debts and money during the period
of three months from the Transfer Date.
7.2 Subject to the terms of clause 12, if the Purchaser shall receive any
sums in respect of the Book Debts it shall forthwith pay to the
Administrators such sums received by the Purchaser. Where a debtor owes
money both to the Vendor and the Purchaser it shall be assumed that,
unless the debtor makes a specific appropriation to the contrary or it is
apparent from such payment that it is in respect of a debt due to the
Purchaser, any monies received by either the Vendor or the Purchaser from
such debtor are paid first in respect of the debts due to the Vendor and
secondly in respect of debts due to the Purchaser.
7.3 The Vendor confirms that it is not owed any money from the Purchaser
(except under the terms of this Agreement).
8 ASSETS ON THIRD PARTY SITES
The Purchaser hereby acknowledges that it is acquiring those of the
Assets which are situate as at the Transfer Date on third party sites as
and where they lie and subject to any rights of or claims by any third
parties over such Assets.
9 NO OBLIGATION ON THE VENDOR TO DISCHARGE UNSECURED LIABILITY
Nothing in this Agreement shall require the Vendor (acting by the
Administrators) to discharge any unsecured liability of the Vendor to a
third party.
10 SET-OFF
10.1 Any payments to be made by the Purchaser to the Vendor or to the
Administrators shall be made in full without any set-off, deduction,
counterclaim or claim to a lien whether any such set-off, deduction,
counterclaim or lien arises under this Agreement or otherwise (except
that, for the avoidance of doubt, the debenture in favour of the
Purchaser dated 25 July 2001 shall remain in full force and effect as to
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the proceeds of this sale although it will be released in accordance with
clause 5.1.2 of this Agreement).
10.2 The Vendor agrees that the Purchaser may retain out of the sums due to
Vendor from the Purchaser under this Agreement the sum of US294,000
dollars in the full and final satisfaction of the obligation to repay the
loan provided by the Purchaser to the Vendor under the terms of an
agreement dated 25 July 2001.
11 BOOKS AND RECORDS
11.1 All minute books relating to meetings of the directors or shareholders of
the Vendor and all statutory books shall remain the property of the
Vendor and shall be retained by it.
11.2 All bought and sales ledgers, purchases and sales day books and purchases
and sales invoices and other books and records of the Vendor used in the
carrying on of the Business which are not Vendor Records shall remain the
property of and be retained by the Vendor PROVIDED THAT they shall for a
period of two months from the Transfer Date at all reasonable times
during usual business hours and upon the giving of reasonable notice be
open to the inspection and use of the Purchaser and Xxxxxxx and their
respective servants and agents who may (at the Purchaser's or Xxxxxxx'x
expense, as appropriate) take such copies and extracts from them as the
Purchaser or Xxxxxxx may reasonably require.
11.3 All Vendor Records, customer records, files and business documents of the
Vendors (excluding those referred to in clauses 11.1 and 11.2) and all
lists of suppliers, price lists, catalogues, sales literature and
publicity materials of the Vendor shall be transferred to the Purchaser.
12 LIABILITY OF THE PURCHASER
Notwithstanding any other provision in this Agreement the Purchaser shall
have no liability whatsoever without limitation to any other party save
for its obligation to direct Xxxxxxx to pay to the Vendor the sums which
have been agreed to be paid in respect of clause 3 of this Agreement.
This exclusion of liability shall operate to the maximum extent permitted
by English Law. The parties agree that this exclusion of liability is
reasonable in all circumstances.
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13 TERMINATION OF THIS AGREEMENT
13.1 This Agreement may be terminated at any time prior to Completion as
follows:
13.1.1 by the mutual written consent of both parties;
13.1.2 by the Vendor if Completion does not happen by 30 October 2001;
13.1.3 by the Purchaser if the asset sale agreement of even date made
between the Purchaser and Xxxxxxx is terminated.
14 THIRD PARTY CLAIMS
14.1 Subject to the terms of clause 12, if any of the Assets shall be found to
be subject to a charge lien or other encumbrance or reservation of title
claim or if the Vendor shall otherwise be unable to make title thereto
the Vendor shall at its option be entitled to remove any such assets from
this Agreement which are still in the possession or control of the
Purchaser but the Purchaser shall raise no objection and have no right to
a reduction in the purchase price paid or to be paid or to withhold any
part of the purchase price or to rescind this Agreement or any other
claim as a result thereof.
14.2 Subject to the terms of clause 12, in relation to chattels used in the
carrying on of the Business which are the subject matter of credit sale,
hire, leasing or hire purchase agreements the Vendor shall not object to
nor hinder any arrangements which the Purchaser may wish to make with the
owner of such chattels and shall until discharge of the Administration
Order (at no cost to the Vendor) give reasonable assistance to the
Purchaser to enable the Purchaser to acquire title to or otherwise
continue to use such chattels provided always that if the owner of any
such chattels refuses to sell or otherwise make available any such
chattels to the Purchaser then the Purchaser shall forthwith deliver up
such chattels for collection by the owner thereof.
15 EXCLUSION CLAUSES
15.1 Subject to the terms of clause 12, save as expressly otherwise provided
in this Agreement all representations, warranties and conditions express
or implied statutory or otherwise in respect of the Assets sold hereunder
are expressly excluded including without limitation, warranties and
conditions as to quiet possession, merchantable quality, fitness for
purpose, and description and (subject to Section
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12(3) to 12 (5A) of the Sale of Goods Xxx 0000 and the Sale of Goods
(Amendment) Act 1995) title.
15.2 The Purchaser acknowledges and agrees that it takes the Assets in their
present condition and subject to all faults.
15.3 Without prejudice to the generality of clause 15.1 the Purchaser
acknowledges that it has made such inspection of the Assets as it thinks
fit and on this basis is prepared to enter into this transaction further
acknowledging that save as expressly otherwise provided in this Agreement
the Vendor makes no warranty as to the title to (subject to Section 12(3)
to 12 (5A) of the Sale of Goods Xxx 0000 and the Sale of Goods
(Amendment) Act 1995) or description or condition of the Assets and that
it shall be deemed to purchase with full knowledge thereof including the
whereabouts and state and conditions of the Assets.
15.4 The parties agree that the provisions of this Agreement are fair and
reasonable in all the circumstances of a sale by a company in
administration in light of the following matters:
15.4.1 the Purchaser agrees that it is entering into this Agreement on
the basis of its own judgment and is placing no reliance on any
warranty representation or silence on the part of the Vendor or
the Administrators or by any of its or their staff employees
agents or advisers.
15.4.2 The Purchaser is satisfied that it and its professional advisers
have had a full opportunity for investigation, inspection and
analysis of the Assets and the Business and that it has satisfied
itself that it has made all appropriate investigations as at the
date of this Agreement.
15.4.3 The intervention of insolvency and the constraints on selling
necessarily imposed on the Vendor in such circumstances.
15.5 For the avoidance of doubt the Purchaser agrees that in the event that it
does not receive title or unencumbered title to all or any of the Assets
the Purchaser shall not be entitled to rescind or avoid this Agreement in
any way nor shall the Purchaser have any other rights of claims against
the Vendor or the Administrators or either of them.
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15.6 This exclusion of liability shall:
15.6.1 be in addition to and not in substitution for any right of
indemnity or relief or remedy otherwise available and shall
continue notwithstanding completion of this Agreement;
16.6.2 arise and continue notwithstanding the termination of any agency
before or after the signing of this Agreement and shall operate as
a waiver of any claims in tort as well as under or in relation to
this Agreement.
16.6.3 The Purchaser acknowledges and declares that it has satisfied
itself or has had the opportunity to satisfy itself as to the
accuracy of the Schedules of this Agreement and will make no claim
against the Vendor or the Administrators if any of the items
referred to in such Schedules are found to be missing or found to
be incorrectly described whether in terms of quality quantity
physical appearance or otherwise.
16 ADMINISTRATORS TO HAVE NO LIABILITY
16.1 Save in respect of the Administrators' obligation to procure that the
Vendor complies with the obligation contained in clause 5.5 above, the
Purchaser acknowledges to and agrees with the Administrators that the
Administrators are a party to this Agreement and are executing it only
for the purpose of taking the benefit of the acknowledgements given by
the Purchaser in this clause 16.
16.2 The parties agree that the Administrators are acting as agents of the
Vendor and that, save in respect of the Administrators' obligation
contained in clause 5.5 above neither the Administrators nor their firm
shall incur any personal liability under this Agreement or in respect of
anything arising directly or indirectly in connection with it and
accordingly their personal liability is excluded.
16.3 It is agreed between the parties that Xxx Xxxxxxx is signing the
Agreement as the "responsible" party under the Court order and as such
accepts no personal liability under this Agreement.
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17 FURTHER ASSURANCE
Until discharge of the Administration Order the Vendor shall (at the cost
of the Purchaser which shall include the fees and legal costs of the
Vendor or the Administrators in approving the terms of any such deeds or
documents) do and execute all such lawful and necessary acts, deeds,
documents and things, within its powers as the Purchaser may reasonably
require for effectively vesting the Assets in the Purchaser and pending
the doing and executing of such acts, deeds, documents and things the
Vendor shall hold the legal estate in the Assets in trust for the
Purchaser.
18 FACSIMILES AND COUNTERPARTS
18.1 For the purpose of this Agreement, any copy, facsimile telecommunication
or other reliable reproduction of a writing transmission or signature may
be substituted for or used in lieu of the original writing transmission
or signature for any and all purposes for which the original writing,
transmission or signature could be used provided that such copy,
facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing, transmission or signature as
the case may be.
18.2 This Agreement may be executed in any number of counterparts with the
same effect as if all signatory parties had signed the same document. All
counterparts shall be construed together and shall constitute one and the
same instrument.
19 ENFORCEMENT BY THIRD PARTIES
Save in relation to Xxxxxxx and its servants and agents by virtue of
Clause 11.2, the parties to this Agreement do not intend that any of its
terms will be enforceable by virtue of the Contracts (Rights of Third
Parties Act) 1999 by any person not a party to it.
20 NOTICES
Any notice or other communication required or permitted to be delivered
to any party under this Agreement shall be in writing and shall be deemed
properly delivered, given and received when delivered (by hand, by
courier or express delivery service or by telecopier) to the address or
telecopier number set forth beneath the name of such party below (or to
such other address or telecopier number as such party shall have
specified in a written notice given to the other parties hereto) provided
that in
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case of communication by telecopier a hard copy of the communication is
forwarded to the addressee by courier or express delivery service:
the Vendor Adaptive Broadband Limited
c/o Xxxxxx Xxxxxxxx, XX Xxx 00, 000 Xxxxxx,
Xxxxxx XX0X 0XX for the attention of
Xxxxxx Xxxxxxx
if to Purchaser: Adaptive Broadband Corporation
0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxx,
XX 00000 XXX with a copy to Xxxxxxx
Associates Inc of 000 Xxxxxxxxx Xxxxx,
Xxxxx Xxxxxxx, XX 00000, XXX, for the
attention of Xxxxx Xxxxxxx
21 MISCELLANEOUS
21.1 The terms and conditions of this Agreement and the Schedules and the
appendices (if any) and the documents referred to in it represent the
entire agreement between the parties relating to the sale and purchase of
the Assets.
21.2 Subject to clause 12 no waiver by the Vendor or the Administrators of any
of the requirements of this Agreement or of any of the Vendor's rights
under it shall release the Purchaser from full performance of the
remaining obligations stated.
21.3 Subject to clause 12 notwithstanding the completion of the sale and
purchase of the Assets this Agreement shall remain in full force and
effect with regard to anything remaining to be done or performed or
observed under it.
22 CERTIFICATE OF VALUE
IT IS HEREBY CERTIFIED that the transaction effected under this Agreement
does not form part of a larger transaction or a series of transactions in
respect of which the amount or the aggregate amount or value of the
stampable assets exceeds (pound)60,000.
23 GOVERNING LAW AND JURISDICTION
In relation to any issues raised or commenced by the Purchaser this
Agreement shall be governed by and construed in accordance with English
Law and the parties irrevocably agree that the Courts of England and
Wales shall have jurisdiction in respect of any such dispute suit
arbitration or proceedings. In relation to any issues raised or commenced
by the Vendor this Agreement shall be governed by and
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construed in accordance with the laws of California and the parties
irrevocably agree that the Court shall have jurisdiction in respect of
any such dispute suit arbitration or proceedings.
24 ASSIGNMENT
The Purchaser shall be entitled to assign this Agreement but only with
the prior written consent of the Administrators (such consent not to be
unreasonably withheld) (save that the obligation to direct payment of the
sums set out in clauses 3 and 5.2 may not be assigned) to any subsequent
Purchaser of the Assets on the basis that the subsequent purchaser
becomes responsible for all obligations of the Purchaser under this
Agreement.
AS WITNESS the hand of one of the Administrators acting on behalf of the Vendor
and the duly authorised representative of the Purchaser and the hand of one of
the Administrators
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AS WITNESS the hand of one of the Administrators acting on behalf of the
Assignor and the duly authorised representative of the Assignee and the hand of
one of the Administrators
EXECUTED AS A DEED by )
ADAPTIVE BROADBAND LIMITED ) /s/ Xxxxxx Xxxxxxx
Acting by one of its Administrators )
in the presence of )
/s/ Xxxxxx Xxxxx
EXECUTED AS A DEED by )
ADAPTIVE BROADBAND CORPORATION ) /s/ Xxxxxx X. Xxxxxxx
acting by ) Responsible Individual Appointed
/s/ Xxxxx Xxxxx
Secretary
SIGNED AS A DEED )
by XXXXXX XXXXXXX ) /s/ Xxxxxx Xxxxxxx
in the presence of )
/s/ Xxxxxx Xxxxx
SIGNED AS A DEED by XXXXXX XXXXXXX)
who is duly authorised to sign )
for and on behalf of ) /s/ Xxxxxx Xxxxxxx
XXX XXXXXX )
in the presence of )
/s/ Xxxxxx Xxxxx
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The Registrant shall furnish a copy of any of the schedules referred to hereof
to the Commission upon request.
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