Exhibit 4.2
______________________________________________________
PURCHASE AGREEMENT
AMONG
ALACRITY COMMUNICATIONS, INC.,
TRIOPHY INVESTMENTS, LTD.,
CURRENT VENTURES II, LTD.
TRANSWITCH CORPORATION
AND
TXC ACQUISITION CORPORATION
Dated as of August 1, 2000
______________________________________________________
TABLE OF CONTENTS
PAGE
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ARTICLE I -- DEFINITIONS....................................................................................... 1
1.1. Definitions........................................................................................... 1
ARTICLE II -- PURCHASE AND SALE................................................................................ 3
2.1. Purchase and Sale..................................................................................... 3
2.2. Closing............................................................................................... 3
2.3. Exchange Agent........................................................................................ 3
2.4. No Fractional TranSwitch Common....................................................................... 3
2.5. Distribution of TranSwitch Stock...................................................................... 4
ARTICLE III -- REPRESENTATIONS AND WARRANTIES OF ALACRITY AND SELLERS.......................................... 5
ARTICLE IV -- ADDITIONAL REPRESENTATIONS AND WARRANTIES OF SELLERS............................................. 5
4.1. Title to and Validity of Notes........................................................................ 5
4.2. Authority............................................................................................. 6
4.3. Consent, Approvals.................................................................................... 6
4.4. Power To Act as Trustee or Executor................................................................... 6
4.5. Access to Information; Accredited Investor Representation............................................. 6
4.6. Purchase for Investment............................................................................... 7
ARTICLE V -- REPRESENTATIONS AND WARRANTIES OF TRANSWITCH AND MERGER SUB....................................... 7
ARTICLE VI -- COVENANTS OF THE SELLERS......................................................................... 7
6.1. Confidentiality....................................................................................... 7
ARTICLE VII -- COVENANTS OF TRANSWITCH......................................................................... 8
7.1. Confidentiality....................................................................................... 8
7.2. Resale Registration Statement......................................................................... 8
7.3. 1934 Act Reports...................................................................................... 9
ARTICLE VIII -- COVENANTS OF ALL PARTIES....................................................................... 9
8.1. Best Efforts.......................................................................................... 9
8.2. Certain Filings....................................................................................... 9
8.3. Public Announcements.................................................................................. 9
ARTICLE IX -- CONDITIONS TO CLOSING............................................................................ 9
9.1. Conditions to the Obligations of Each Party........................................................... 10
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9.2. Conditions to Obligation of TranSwitch.............................................................. 10
9.3. Conditions to Obligation of Sellers................................................................. 11
ARTICLE X -- RESERVED....................................................................................... 12
ARTICLE XI -- MISCELLANEOUS................................................................................. 13
11.1. Notices............................................................................................ 13
11.2. Entire Agreement................................................................................... 14
11.3. Governing Law; Consent to Jurisdiction............................................................. 14
Schedules
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Schedule 2.1 List of Sellers
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PURCHASE AGREEMENT
AGREEMENT dated as of August 1, 2000 among Alacrity Communications,
Inc., a California corporation ("Alacrity"); Triophy Investments, Ltd.
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("Triophy"), Current Ventures II, Ltd. ("CVII" and together with Triophy, the
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"Sellers"); TranSwitch Corporation, a Delaware corporation ("TranSwitch") and
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TXC Acquisition Corporation, a Delaware corporation and wholly-owned subsidiary
of TranSwitch ("Merger Sub").
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W I T N E S S E T H :
WHEREAS, TranSwitch, Merger Sub, Alacrity and the other parties
thereto have entered into an Agreement and Plan of Reorganization dated as of
July 25, 2000 (the "Merger Agreement"), whereby TranSwitch shall acquire all of
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the outstanding capital stock of Alacrity through the merger of Merger Sub with
and into Alacrity (the "Merger");
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WHEREAS, in connection with the Merger, TranSwitch desires to purchase
from Sellers all of the outstanding amount of convertible interest-bearing
promissory notes of Alacrity owned and held by the Sellers and set forth on
Schedule 2.01 (the "Notes");
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WHEREAS, each Seller desires to sell to TranSwitch all of the Notes
owned by such Seller;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions. (a) The following terms, as used herein, have the
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following meanings:
"Ancillary Agreements" means the Registration Rights
Agreement.
"TranSwitch Stock" means the number of shares of common
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stock, $.001 par value per share ("TranSwitch Common Stock"), of TranSwitch as
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is determined by dividing $1,271,000 by the average of the last reported sale
price of the common stock of the TranSwitch on the Nasdaq National Average for
the 20 trading days ending the fifth day immediately preceding the Closing Date
(subject to appropriate adjustment in the event of a stock split or reverse
stock split) (the "Average Price"). On the Closing Date, the Average Price, as
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calculated pursuant to this paragraph, will be $83.91.
"Closing Date" means the date of the Closing.
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"Effective Time" shall have the meaning assigned in the
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Merger Agreement.
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"Material Adverse Effect" means a material adverse effect on the
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business, assets, condition (financial or otherwise), results of operations or
prospects of the Alacrity.
"1934 Act" means the Securities Exchange Act of 1934, as amended, and
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the rules and regulations promulgated thereunder.
"Person" means an individual, corporation, partnership, association,
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trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Registration Rights Agreement" means the Registration Rights
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Agreement between Sellers, TranSwitch and the other parties thereto in the form
of Exhibit 8.2 to the Merger Agreement.
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"Subsidiary" means any entity of which securities or other ownership
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interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are owned directly or
indirectly by the Alacrity.
"Total TranSwitch Common Stock" shall have the meaning assigned to it
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in the Merger Agreement.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
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Alacrity recitals
Closing 2.2
Commission 4.5(f)
Alacrity Securities 3.5
Notes recitals
Purchase Price 2.1
TranSwitch recitals
Merger Sub recitals
Registrable Shares 7.2
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ARTICLE II
PURCHASE AND SALE
2.1. Purchase and Sale. Upon the terms and subject to the conditions
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of this Agreement, each Seller, severally but not jointly, shall sell to
TranSwitch, and TranSwitch shall purchase from each such Seller, at the Closing,
that amount of Notes as is set forth opposite such Seller's name on Schedule
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2.1. The aggregate purchase price for each Seller with respect to their Notes,
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to be paid in shares of TranSwitch Stock, shall be equal to the amount of Notes,
including outstanding principal and interest as of the Closing Date, held by
such Seller, divided by the Average Price, rounded down to the nearest whole
share (in each instance, such shares of TranSwitch Stock being referred to as
the "Purchase Price"). Sellers shall acknowledge that the sale by Sellers of
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Notes held by them, and the payment to Sellers hereunder shall release Alacrity
from any and all obligations of Alacrity to the Sellers under the Notes, which
obligations shall now run to TranSwitch. Such payment shall also constitute
full payment, satisfaction and discharge of the obligations of TranSwitch to the
Sellers under this Agreement. The Purchase Price shall be paid as provided in
Section 2.2.
2.2. Closing. The closing (the "Closing") of the purchase and sale of
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the Notes hereunder shall take place at the offices of TranSwitch's Counsel in
Boston, Massachusetts or such other location as the parties may mutually agree
upon, but in no event later than the Closing Date set forth in the Agreement and
Plan of Reorganization ("Merger Agreement") by and among Alacrity, TranSwitch,
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TXC Acquisition Corporation and the other parties thereto (the "Merger Closing
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Date") or at such other time or place as TranSwitch, Alacrity and Sellers may
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agree in writing. At the Closing,
(a) The number of shares of TranSwitch Common Stock to be
received for each Note shall be as provided in Section 2.1 hereof.
(b) The appropriate parties shall enter into the Ancillary
Agreements.
(c) The parties shall execute and deliver any other instruments,
documents and certificates that are required to be delivered pursuant to this
Agreement or as may be reasonably requested by any party in order to consummate
the transactions contemplated by this Agreement.
(d) Each of the Sellers shall have executed a Form W-8 attached
as Exhibit 2.2 hereto.
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2.3. Exchange Agent. Boston EquiServe LP, or such other national or
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state bank as is selected by TranSwitch, shall act as the agent for TranSwitch
for purposes of mailing and receiving transmittal letters and distributing
consideration to the Sellers (the "Exchange Agent").
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2.4. No Fractional TranSwitch Common. Notwithstanding any other
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provision of this Agreement, neither certificates nor script for fractional
shares of TranSwitch Common Stock shall be issued to any Seller and the holder
thereof shall not be entitled to any voting or other
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rights of a holder of shares or a fractional share interest. Each Seller who
otherwise would have been entitled to receive a fraction of a share of
TranSwitch Common Stock shall receive in lieu thereof cash, without interest, in
an amount determined by multiplying such seller's fractional interest by the
Average Price. All amounts of cash in respect of fractional interests which have
not been claimed at the end of three years from the Effective Time by surrender
of Notes shall be repaid to the Surviving Corporation, subject to the provisions
of applicable escheat or similar laws, for the account of the holders entitled
thereto.
2.5. Distribution of TranSwitch Stock in Exchange for the Notes.
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(a) As soon as practicable after the Effective Time, the
Exchange Agent shall distribute the TranSwitch Stock as provided in this Section
2.5. TranSwitch shall deliver to the Exchange Agent one or more certificates
representing in the aggregate the number of shares of TranSwitch Stock issuable
pursuant to this Agreement in sufficient time for the Exchange Agent to make
such distribution. The Exchange Agent shall not be entitled to vote or exercise
any rights of ownership with respect to any shares of TranSwitch Stock held by
it from time to time hereunder, except that it shall receive and hold all
dividends or other distributions paid or distributed with respect to such shares
for the account of the persons entitled thereto.
(b) Within five business days after the Effective Time,
TranSwitch shall cause to be mailed to Seller, (i) a letter of transmittal
(which shall specify that delivery shall be effected, and risk of loss and title
to the Notes shall pass, only upon receipt of the Notes by the Exchange Agent,
and shall be in such form and have such other provisions as TranSwitch may
reasonably specify) and (ii) instructions for use in effecting the transfer of
the Notes to TranSwitch in exchange for certificates representing shares of
TranSwitch Stock and cash (if any). Upon exchange of a Note to the Exchange
Agent or to such other agent or agents as may be appointed by TranSwitch, with
such letter of transmittal, duly completed and validly executed in accordance
with the instructions thereto, the Seller shall be entitled to receive in
exchange for the Notes a certificate representing the number of whole shares of
TranSwitch Stock and payment in lieu of fractional shares which such Seller has
the right to receive (if any), and the Note so exchanged shall thereafter be
transferred to TranSwitch. Until so exchanged, each outstanding Note that, prior
to the Effective Time, represented an indebtedness of Alacrity will be deemed
from and after the Effective Time, for all corporate purposes, to evidence only
the ownership of the number of full shares of TranSwitch Stock into which such
Notes shall have been so converted and the right to receive an amount in cash in
lieu of the issuance of any fractional shares (if any). All other rights of each
Seller as a holder of a Note, including the right to interest payable after the
Effective Time, shall cease as of the Effective Time. Unless and until any such
outstanding Notes shall be so exchanged, no dividend (cash or stock) payable to
holders of record of shares of TranSwitch Stock as of any date subsequent to the
Effective Time shall be paid to the holder of any such outstanding Note and all
other rights as a shareholder of TranSwitch shall be suspended, but upon such
exchange of such outstanding Note there shall be paid to the record holder of
the Note the certificate of shares of TranSwitch Stock in exchange therefor, the
amount of dividends, if any, without interest and less any taxes which may have
been imposed thereon, that have therefore become payable with respect to the
number of those shares of TranSwitch Stock represented by such certificate
issued upon such transfer and exchange, and all other rights as shareholder of
TranSwitch shall thereafter be restored.
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2.6. Withholding Taxes. TranSwitch, Alacrity or the Exchange Agent
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shall be entitled to deduct and withhold from the consideration otherwise
payable pursuant to this Agreement to any Person such amounts as TranSwitch or
the Exchange Agent determine they are required to deduct and withhold with
respect to the making of such payment under the Internal Revenue Code of 1986,
as amended, or any provision of state, local, or foreign Tax law. To the extent
that amounts are so withheld, such withheld amounts shall be treated for all
purposes hereof as having been paid to such Person in respect of which such
deduction and withholding was made. To the extent that the amount so required to
be deducted or withheld from any payment exceeds the cash portion of the
consideration otherwise payable to such Person, TranSwitch, Alacrity and the
Exchange Agent are hereby authorized to sell or otherwise dispose of at fair
market value such portion of consideration as is necessary to provide sufficient
funds to TranSwitch, Alacrity and the Exchange Agent, as the case may be, in
order to enable it to comply with such deduction or withholding requirement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
ALACRITY AND SELLERS
Alacrity and each of the Sellers hereby incorporate the representations
and warranties contained in Article III of the Merger Agreement and restate such
representations and warranties as though fully set forth herein. Alacrity and
each of the Sellers, to the knowledge of each Seller, jointly and severally,
represent and warrant to TranSwitch and Merger Sub such representations and
warranties.
ARTICLE IV
ADDITIONAL REPRESENTATIONS
AND WARRANTIES OF SELLERS
Each Seller, severally but not jointly, represents and warrants to, and
agrees with, TranSwitch and Merger Sub as follows:
4.1. Title to and Validity of Notes. Subject to applicable community
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property laws, such Seller is the lawful owner of the Notes to be exchanged for
the TranSwitch Stock pursuant to this Agreement and has, and on the Closing Date
will have, good and clear title to such Notes, free of all Liens.
4.2. Authority. Such Seller has, and on the Closing Date will have,
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full legal right, power and authority to enter into this Agreement and to sell
and deliver the Notes owned by him, her or it in the manner provided herein.
Such Seller has duly and validly executed this Agreement and has, or prior to
the Closing, will have duly and validly executed and delivered all other
agreements contemplated hereby, and each of this Agreement and such other
agreements
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constitutes a valid, binding and enforceable obligation of such Seller in
accordance with its terms.
4.3. Consent, Approvals. The execution, delivery and performance of
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this Agreement and the other agreements contemplated hereby by such Seller, and
the consummation of the transactions contemplated hereby or thereby, will not
require, on the part of such Seller, any consent, approval, authorization or
other order of, or any filing with, any Governmental Entity, or under any
contract, agreement or commitment to which such Seller is a party or by which
such Seller or property of such Seller is bound, and will not constitute a
violation on the part of such Seller of any law, administrative regulation or
ruling or court decree, or any contract, agreement or commitment, applicable to
such Seller or property of such Seller.
4.4. Power To Act as Trustee or Executor. If such Seller is serving
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as trustee or executor with respect to its Notes, such Seller is duly authorized
and empowered by the instruments creating such trust or trusts or by the will of
which such Seller is acting as executor and under applicable law to enter into
this Agreement with respect to the Notes held by such Seller and to consummate
the transactions contemplated herein.
4.5. Access to Information; Accredited Investor Representation.
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(a) Each Seller acknowledges that all documents, records and
books pertaining to the investment in the TranSwitch Stock have been made
available for inspection by him, his attorney, accountant, purchaser
representative and tax advisor (collectively, the "Advisors") and that the
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Seller has carefully reviewed and understands the information contained therein;
(b) Each Seller and the Advisors have had a reasonable
opportunity to ask questions of and receive answers from a person or persons
acting on behalf of TranSwitch concerning the offer and sale of the TranSwitch
Common Stock and all such questions have been answered to the full satisfaction
of the Seller and his Advisors;
(c) In evaluating the suitability of an investment in
TranSwitch, each Seller has not relied upon any representation or other
information (oral or written) other than as contained in documents or answers to
questions so furnished to the Seller or his Advisors by TranSwitch;
(d) Each Seller, together with the Advisors, has such knowledge
and experience in financial, tax and business matters so as to enable him to
utilize the information made available to him in connection with the purchase of
the TranSwitch Common Stock to evaluate the merits and risks of an investment in
the TranSwitch Common Stock and to make an informed investment decision with
respect thereto;
(e) Each Seller has adequate means of providing for his current
needs and foreseeable contingencies and has no need for his investment in the
TranSwitch Common Stock to be liquid;
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(f) Each Seller acknowledges that he or she has previously
received each SEC Report (as hereinafter defined) filed with the Securities and
Exchange Commission (the "Commission") and has had a reasonable opportunity to
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ask questions of and receive answers from a person or persons acting on behalf
of TranSwitch concerning such documents, and all such questions have been
answered to the full satisfaction of the Seller and his Advisors.
4.6. Purchase for Investment. Each Seller is acquiring the shares of
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TranSwitch Common Stock for investment for his own account and not with a view
to, or for sale in connection with, any distribution thereof. Each Seller
agrees that the shares of TranSwitch Stock acquired by such Seller may not be
sold, transferred or otherwise disposed of unless such shares are registered
with the SEC and the securities regulatory authorities of certain states or
unless an exemption from such registration is available.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF TRANSWITCH AND MERGER SUB
TranSwitch and Merger Sub hereby incorporate and adopt the
representations and warranties contained in Article V of the Merger Agreement
and restate such representations and warranties as though fully set forth
herein.
ARTICLE VI
COVENANTS OF THE SELLERS
Each Seller agrees that:
6.1. Confidentiality. Sellers and their Affiliates will hold, and
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will use their best efforts to cause their respective officers, directors,
employees, accountants, counsel, consultants, advisors and agents to hold, in
confidence, unless compelled to disclose by judicial or administrative process
or by other requirements of law, all confidential documents and information
concerning TranSwitch furnished to Sellers or their Affiliates in connection
with the transactions contemplated by this Agreement, and (after the Closing
Date) all confidential documents and information concerning Alacrity, except to
the extent that such information can be shown to have been (i) previously known
on a nonconfidential basis by Sellers, (ii) in the public domain through no
fault of Sellers or (iii) later lawfully acquired by Sellers from sources other
than Alacrity or TranSwitch; provided that Sellers may disclose such information
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to their respective officers, directors, employees, accountants, counsel,
consultants, advisors and agents in connection with the transactions
contemplated by this Agreement so long as such persons are informed by Sellers
of the confidential nature of such information and are directed by Sellers to
treat such information confidentially. The obligation of Sellers and their
Affiliates to hold any such information in confidence shall be satisfied if they
exercise the same care with respect to such information as they would take to
preserve the confidentiality of their own similar information.
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ARTICLE VII
COVENANTS OF TRANSWITCH
TranSwitch agrees that:
7.1. Confidentiality. Prior to the Closing Date and after any
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termination of this Agreement, TranSwitch will hold, and will use its best
efforts to cause its respective officers, directors, employees, accountants,
counsel, consultants, advisors and agents to hold, in confidence, unless
compelled to disclose by judicial or administrative process or by other
requirements of law, all confidential documents and information concerning
Alacrity furnished to TranSwitch in connection with the transactions
contemplated by this Agreement, except to the extent that such information can
be shown to have been (i) previously known on a nonconfidential basis by
TranSwitch, (ii) in the public domain through no fault of TranSwitch or (iii)
later lawfully acquired by TranSwitch from sources other than Alacrity; provided
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that TranSwitch may disclose such information to its officers, directors,
employees, accountants, counsel, consultants, advisors and agents in connection
with the transactions contemplated by this Agreement so long as such Persons are
informed by TranSwitch of the confidential nature of such information and are
directed by TranSwitch to treat such information confidentially. The obligation
of TranSwitch to hold any such information in confidence shall be satisfied if
they exercise the same care with respect to such information as they would take
to preserve the confidentiality of their own similar information. If this
Agreement is terminated, TranSwitch will, and will use its best efforts to cause
their respective officers, directors, employees, accountants, counsel,
consultants, advisors and agents to, destroy or deliver to Seller, upon request,
all documents and other materials, and all copies thereof, obtained by
TranSwitch or on its behalf from a Seller, Alacrity in connection with this
Agreement that are subject to such confidence.
7.2. Resale Registration Statement. TranSwitch agrees to cause a
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registration statement on Form S-3 under the Securities Act relating to the
resale of the TranSwitch Stock (the "Registrable Shares") to be filed pursuant
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to the Registration Rights Agreement no later than fifteen (15) days after the
Effective Time (the "Initial Filing Date"), and agrees to use commercially
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reasonable efforts to (i) have such registration statement declared effective no
later than six weeks after the Initial Filing Date and (ii) maintain the
effectiveness of such registration statement until the earlier of one (1) year
from the Effective Time and the date on which all Registrable Shares have been
sold by Sellers .
7.3. 1934 Act Reports. TranSwitch agrees to file in a timely manner
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all reports and other documents required of Alacrity under the 1934 Act.
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ARTICLE VIII
COVENANTS OF ALL PARTIES
The parties hereto agree that:
8.1. Best Efforts. Subject to the terms and conditions of this
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Agreement, each party will use its best efforts to take, or cause to be taken,
all actions and to do, or cause to be done, all things necessary or desirable
under applicable laws and regulations to consummate the transactions
contemplated by this Agreement. Sellers, TranSwitch, Alacrity and Merger Sub
each agree to execute and deliver such other documents, certificates, agreements
and other writings and to take such other actions as may be necessary or
desirable in order to consummate or implement expeditiously the transactions
contemplated by this Agreement.
8.2. Certain Filings. Sellers, Alacrity and TranSwitch shall
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cooperate with each other (a) in determining whether any action by or in respect
of, or filing with, any governmental body, agency, official or authority is
required, or any actions, consents, approvals or waivers are required to be
obtained from parties to any material contracts, in connection with the
consummation of the transactions contemplated by this Agreement and (b) in
taking such actions or making any such filings, furnishing information required
in connection therewith and seeking timely to obtain any such actions, consents,
approvals or waivers.
8.3. Public Announcements. The parties agree to consult with each
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other before issuing any press release or making any public statement with
respect to this Agreement or the transactions contemplated hereby and, except as
may be required by applicable law or any listing agreement with any national
securities exchange, will not issue any such press release or make any such
public statement prior to such consultation.
ARTICLE IX
CONDITIONS TO CLOSING
9.1. Conditions to the Obligations of Each Party. The obligations of
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TranSwitch and Sellers to consummate the Closing are subject to the satisfaction
of the following conditions:
(a) No proceeding challenging this Agreement or the Merger
Agreement or the Merger or the transactions contemplated hereby or thereby or
seeking to prohibit, alter, prevent or materially delay the Closing shall have
been instituted by any Person before any court, arbitrator or governmental body,
agency or official and be pending.
(b) Each other party shall have executed and delivered the
Ancillary Agreement to be entered into by it at Closing, in each case
substantially in the form attached as an exhibit to this Agreement.
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(c) Each of the conditions to closing specified in Article IX
of the Merger Agreement shall have been satisfied or waived.
(d) All actions by or in respect of or filings with any
governmental body, agency, official or authority required to permit the
consummation of the Closing shall have been obtained.
9.2. Conditions to Obligation of TranSwitch. The obligation of
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TranSwitch to consummate the Closing is subject to the satisfaction of the
following further conditions:
(a) The Merger shall have become effective.
(b)(i) The representations and warranties of Alacrity and the
Sellers set forth in this Agreement will be true and correct in all material
respects as of the date of this Agreement and as of the Closing Date as though
made on and as of the Closing Date, except (i) as otherwise contemplated by this
Agreement, (ii) as a result of actions taken or not taken at the direction of or
after consultation with and written concurrence of TranSwitch and (iii) for
representations and warranties specifically limited to an earlier date(s).
TranSwitch will have received a certificate signed by or on behalf of each of
the Sellers and by the Chief Executive Officer, Chief Technology Officer, Senior
Director of Technical Development and Director of Operations of Alacrity to such
effect on the Closing Date.
(c) Alacrity and the Sellers will have performed in all
material respects all agreements and covenants required to be performed by them
under this Agreement prior to the Closing Date except (i) as otherwise
contemplated or permitted by this Agreement and (ii) as a result of actions
taken or not taken at the direction of or after consultation with and written
concurrence of TranSwitch, and TranSwitch will have received a certificate
signed by each holder of Alacrity Common Stock or Preferred Stock, each director
of Alacrity, and each officer of Alacrity to such effect on the Closing Date.
(d) No court, arbitrator or governmental body, agency or
official shall have issued any order, and there shall not be any statute, rule
or regulation, restraining the effective operation by TranSwitch of the business
of Alacrity after the Closing Date, and no proceeding challenging this Agreement
or the transactions contemplated hereby or seeking to prohibit, alter, prevent
or materially delay the Closing shall have been instituted by any Person before
any court, arbitrator or governmental body, agency or official and be pending.
(e) Each of the Sellers and Alacrity shall have executed and
delivered the Ancillary Agreement to be entered into by them or it at the
Closing, in each case substantially in the form attached as an exhibit to the
Merger Agreement.
(f) TranSwitch shall have received all other closing
documents specified in Section 2.2 of this Agreement, Section 9.2 of the Merger
Agreement and
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all other closing documents that it may reasonably request, all in form and
substance reasonably satisfactory to TranSwitch.
9.3. Conditions to Obligation of Sellers. The obligation of Sellers
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to consummate the Closing is subject to the satisfaction of the following
further conditions:
(a) The representations and warranties of TranSwitch and Merger
Sub set forth in this Agreement will be true and correct in all material
respects as of the date of this Agreement and as of the Closing Date as though
made on and as of the Closing Date, except as otherwise contemplated by this
Agreement, and Alacrity will have received a certificate signed on behalf of
TranSwitch by a duly authorized officer of TranSwitch to such effect.
(b) TranSwitch and Merger Sub will have performed in all
material respects all agreements and covenants required to be performed by them
under this Agreement prior to the Closing Date, and Alacrity will have received
a certificate signed on behalf of TranSwitch by officers of TranSwitch to such
effect.
(c) No proceeding challenging this Agreement or the transactions
contemplated hereby or seeking to prohibit, alter, prevent or materially delay
the Closing shall have been instituted by any Person before any court,
arbitrator or governmental body, agency or official and be pending.
(d) TranSwitch shall have executed and delivered each of the
Ancillary Agreements to be entered into by it at the Closing, in each case
substantially in the form attached as an exhibit to the Merger Agreement.
(e) Sellers shall have received all items specified in Section
2.2 of this Agreement and all other closing documents that they may reasonably
request, all in form and substance reasonably satisfactory to them.
ARTICLE X
RESERVED
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ARTICLE XI
MISCELLANEOUS
11.1. Notices. All notices, requests, demands or other communications
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which are required or may be given pursuant to the terms of this Agreement will
be in writing and will be deemed to have been duly given: (i) on the date of
delivery if personally delivered by hand, (ii) upon the third day after such
notice is deposited in the United States mail, if mailed by registered or
certified mail, postage prepaid, return receipt requested, (iii) upon the date
scheduled for delivery after such notice is sent by a nationally recognized
overnight express courier or (iv) by fax upon written confirmation (including
the automatic confirmation that is received from the recipient's fax machine) of
receipt by the recipient of such notice:
If to TranSwitch:
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TranSwitch Corporation
Xxxxx Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Chief Financial Officer
with a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
High Street Tower
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
if to Alacrity, to:
Alacrity Communications, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
with a copy to:
Xxxx X. Xxxxxx, Esq.
Wilson, Sonsini, Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Telecopy: (000) 000-0000
if to a Seller:
-13-
at his or her address shown in
Schedule 2.01
-------------
11.2. Entire Agreement. This Agreement, including the exhibits,
----------------
schedules and other agreements delivered pursuant to this Agreement contain all
of the terms and conditions agreed upon by the parties relating to the subject
matter of this Agreement and supersede all prior agreements, negotiations,
correspondence, undertakings and communications of the parties, whether oral or
written, respecting that subject matter.
11.3. Governing Law; Consent to Jurisdiction. This Agreement will be
--------------------------------------
governed by the internal laws of the State of California. Legal proceedings
relating to this Agreement, the agreements executed in connection with this
Agreement or the transactions contemplated hereby or thereby that are commenced
against TranSwitch, Merger Sub or the Surviving Corporation may be commenced
only in the state or federal courts in or for Shelton, Connecticut. Any such
legal proceedings that are commenced against Alacrity or against any Seller may
be commenced only in the state or federal courts in or for Milpitas, California.
Each of the parties hereby consents to the exclusive jurisdiction of such courts
(and of the appropriate appellate courts) in any such action or proceeding and
waives any objection to venue laid therein. The foregoing provisions will not be
construed to preclude any party from bringing a counter-claim in any action or
proceeding properly commenced in accordance with the foregoing provisions.
Process in any such action or proceeding may be served on any party anywhere in
the world.
-14-
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the day and year first above written.
TRANSWITCH CORPORATION
By: s/s Xxxxxx X.Xxxx
--------------------
Title: Vice-President
TXC ACQUISITION CORPORATION
By: s/s Xxxxxx X. Xxxx
-------------------
Title: Vice President
ALACRITY COMMUNICATIONS INC.
By: s/s Xxx Xxxxx
---------------
Title: President
TRIOPHY INVESTMENTS LTD.
By: s/s K.S. Chay
--------------
Title: Investment Advisor
CURRENT VENTURES II, LTD.
By: s/s Xxxxxx X.Xxxxxxxx
----------------------
Title: Senior Vice President
KLM Capital Management, Inc.
-15-
Schedule 2.1
------------
TranSwitch
Principal and Shares to be
Name and Address of Seller Interest of Notes Received
-------------------------- ----------------- --------
Triophy Investments, Ltd. $709,667.69 8,457.5781032
x/x 00 Xxxx Xxxxx Xxxxxxxx
#00-00 Xxxx Xxxxx Xxxxxxxxxx
Xxxxxx Singapore 139964
Current Ventures II, Ltd. $561,473.78 6,691.4535019
00 Xxxxxxx Xxxx. Xxx. 000
Xxx Xxxx XX 00000
