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EXHIBIT (C)(4)
CONFORMED COPY
RETENTION AGREEMENT dated as of April 27, 1998, among
LUCENT TECHNOLOGIES INC., a Delaware corporation ("Parent"),
REINDEER ACQUISITION, INC., a Delaware corporation and a
wholly owned subsidiary of Parent ("Sub"), YURIE SYSTEMS,
INC., a Delaware corporation (the "Company"), THE BANK OF NEW
YORK, a New York chartered banking corporation, as Escrow
Agent (the "Escrow Agent"), and XXXX X. XX (the "Consultant").
WHEREAS, Parent, Sub and the Company propose to enter into an
Agreement and Plan of Merger dated as of the date hereof (as the same may be
amended or supplemented, the "Merger Agreement") providing for (i) the making of
a cash tender offer (as such offer may be amended from time to time as permitted
under the Merger Agreement, the "Offer") by Sub for all the outstanding shares
of common stock, par value $.01 per share, of the Company ("Company Common
Stock") and (ii) the merger of Sub with and into the Company (the "Merger");
WHEREAS, the Consultant is the record and beneficial owner of the
Shares (as defined below);
WHEREAS, upon consummation of the Offer (the "Effectiveness Date"),
Parent desires that the Consultant become a consultant of Parent and the
Consultant has agreed to be a consultant of Parent for a period of three years
from and after the Effectiveness Date in accordance with this Agreement (the
"Term");
WHEREAS, pursuant to this Agreement, the Consultant agrees that, on
the Effectiveness Date, the Consultant will deposit a certain number of shares
of common stock, par value $.01 per share, of Parent ("Parent Common Stock")
into escrow with the Escrow Agent, as collateral to pay Liquidated Damages (as
defined below) to Parent as provided in this Agreement; and
WHEREAS, as a condition to their willingness to enter into the
Merger Agreement, Parent and Sub have requested that the Consultant enter into
this Agreement.
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NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein, the parties agree
as follows:
ARTICLE I
Certain Definitions
SECTION 1.01. Definitions. Capitalized terms used but not defined
herein shall have the meaning assigned to such terms in the Merger Agreement. In
addition, capitalized terms used herein shall have the following meanings set
forth in this Article I or elsewhere in this Agreement:
(a) The term "Affiliate" shall mean an "affiliate" of Parent,
including the Surviving Corporation, as such term is defined in Rule 12b-2
promulgated under the Securities Exchange Act of 1934, as amended.
(b) The term "Cause" shall mean:
(i) the Consultant wilfully fails to substantially perform his
duties with Parent or any Affiliate for a period of at least thirty (30)
days after receiving notice thereof from Parent in writing specifically
identifying the manner in which Parent believes the Consultant has
wilfully failed to substantially perform his duties; provided, however,
that, to the extent the Consultant within such 30-day period pursues a
cure to such wilful failure and continues pursuing such a cure, such
wilful failure shall not constitute "Cause" if it is cured within 60 days
following receipt of the original notice referred to above; provided
further that, such wilful failure shall not constitute "Cause" unless the
Consultant shall have been provided an opportunity to discuss such notice
and its contents with the immediate supervisor of the Consultant's
immediate supervisor within 15 days following the Consultant's receipt of
such notice;
(ii) the Consultant is convicted of a felony involving moral
turpitude that adversely affects his ability to perform his duties with
Parent or that would injure Parent or any Affiliate (including its
reputation); or
(iii) the Consultant commits a wilful, serious act intending to
enrich himself at the expense of Parent or any Affiliate.
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(c) "Disability" shall mean the Consultant's inability to render the
services required by his consultancy with Parent by reason of a physical or
mental disability for a period of six months.
(d) The term "Escrow Amount" shall mean an amount equal to 15% of
the product of (i) the aggregate number of Shares of the Consultant and his
affiliates outstanding at the time of the expiration of the Offer and (ii) the
Offer Price.
(e) The term "Escrowed Funds" shall mean (i) the dividends and
distributions to be distributed pursuant to Section 3.03 and (ii) any amounts to
be distributed pursuant to Section 4.03.
(f) The term "Good Reason" shall mean (i) an adverse change in the
Consultant's title or a significant adverse change in the Consultant's
responsibilities (including reporting responsibilities); (ii) a reduction in the
Consultant's consulting fee or any failure to pay the Consultant any
compensation to which he is entitled promptly following receipt by Parent of
written notice thereof from the Consultant; (iii) requiring the Consultant to be
based at any location outside a 30-mile radius from the Washington, D.C.
metropolitan area, except for reasonably required travel on Parent's business;
(iv) any material breach by Parent of any provision of this Agreement that has
not been cured within 30 days following receipt by Parent of written notice
thereof from the Consultant specifically identifying such material breach; (v)
any purported termination of the Consultant's consultancy for Cause which does
not comply with the terms of this Agreement; or (vi) the failure of Parent to
obtain an agreement from any successor or assign of Parent to assume and agree
to perform this Agreement.
(g) The term "Liquidated Damages" shall mean the agreed amount set
forth in Section 4.03 to compensate Parent for the damages it will suffer if,
prior to the end of the Term, (i) the Consultant terminates his consultancy with
Parent or an Affiliate other than for Good Reason or (ii) Parent terminates the
Consultant's consultancy for Cause.
(h) The term "Notice" shall mean (i) a written notice to the Escrow
Agent, signed by Parent and the Consultant or (ii) an order of any court of
competent jurisdiction.
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(i) The term "Shares" means such number of shares of Company Common
Stock set forth opposite the Consultant's name on Schedule A attached hereto, as
such shares may be adjusted by stock dividend, stock split, recapitalization,
combination or exchange of shares, merger, consolidation, reorganization or
other change or transaction of or by the Company, together with shares of
Company Common Stock that may be acquired after the date hereof by the
Consultant, including shares of Company Common Stock issuable upon the exercise
of options or warrants to purchase Company Common Stock.
(j) The term "Taxes" shall mean all Federal, state and local,
domestic and foreign, income, franchise, security, value-added, ad valorem,
transfer, withholding and other taxes, including taxes based on or measured by
gross receipts, profits, sales, use or occupation, tariffs, levies, impositions,
assessments or governmental charges of any nature whatsoever, including any
interest, penalties or additions with respect thereto.
(k) The term "Tax Return" shall mean all returns, reports or forms,
including information returns, with respect to Taxes.
ARTICLE II
Position and Term of Consultancy
Subject to earlier termination as contemplated in this Agreement,
the Term of the Consultant's consultancy with Parent shall be for a period of
three years commencing on the Effectiveness Date. The Consultant shall be a
consultant to Parent and shall report to Vice President--Carrier Networks
Products Group of the Data Networking Systems Division of Parent. The Consultant
shall receive a consulting fee at the rate of $150,000 per annum.
Parent, Sub and the Company acknowledge that the Consultant is
Chairman and, with Linsang Partners, LLC (of which he is majority owner),
majority stockholder of Splitrock Services, Inc. ("Splitrock"). Splitrock
provides communications services specifically configured to meet the needs of
large network users, and is building a major network to provide expanded service
to such network users, including Internet carriers. Linsang also has a minority
investment in Removable Media Solutions, Inc. ("RMSI"), of Rancho Cordova,
California, which manufactures and sells data storage products. Neither
Splitrock, RMSI or any other company in which Linsang may invest is or will be
in the
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business of design, development, production, manufacture or marketing of
multi-service access equipment. The above-described activities and investments
relating to Splitrock, Linsang and RMSI require the expenditure of very
substantial amounts of the time of the Consultant, and the Consultant's
obligations hereunder shall not obligate him to devote more than one-half of his
efforts to his obligations hereunder. The Consultant may perform his obligations
hereunder in whole or in part through Linsang, so long as he remains majority
owner and principal officer of Linsang.
ARTICLE III
Creation of Escrow;
The Escrowed Shares
SECTION 3.01. Creation of Escrow. Over the five business days on and
after the Effectiveness Date, the Consultant shall use the entire Escrow Amount
to purchase shares of Parent Common Stock in open market brokerage transactions.
The Consultant hereby agrees to transfer to the Escrow Agent all such shares of
Parent Common Stock (the "Escrowed Shares") as they are purchased. The
Consultant has executed the attached irrevocable order to purchase the Escrowed
Shares as soon as practicable over the five business days on and after the
Effectiveness Date. The Escrow Agent hereby agrees to accept the Escrowed Shares
and hold the same in escrow pursuant to the terms of this Agreement.
SECTION 3.02. Escrowed Shares Generally. The Escrow Agent hereby
agrees that the Escrowed Shares held hereunder shall be held on behalf of and
for the account of the Consultant, to the extent not forfeited to Parent as
required hereunder.
SECTION 3.03. Dividends and Distributions. The Escrow Agent shall,
as promptly as practicable upon receipt of any cash dividends or distributions
on such Escrowed Shares, distribute such cash dividends or distributions to the
Consultant. Notwithstanding the foregoing, no distribution shall be made by the
Escrow Agent after Parent shall have informed the Escrow Agent in writing (with
a copy to the Consultant) of a Termination (as defined below).
SECTION 3.04. Voting Rights. The Consultant shall have right to vote
the Escrowed Shares on any matter upon which shares of Parent Common Stock are
entitled to vote.
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ARTICLE IV
Release of Escrow;
Forfeiture of Escrow
SECTION 4.01. Quarterly Distributions to the Consultant. The Escrow
Agent shall deliver one-twelfth of the Consultant's Escrowed Shares to the
Consultant, on the last day of each three month period with the first delivery
commencing on August 31, 1998, unless Parent shall have informed the Escrow
Agent in writing (with a copy to the Consultant) of a Termination.
SECTION 4.02. Release of Escrow to the Consultant. (a) If (i) the
Consultant terminates his consultancy for Good Reason or (ii) Parent terminates
the consultancy of Consultant other than for Cause, then in either case Parent
shall deliver a Notice to such effect to the Escrow Agent and to the Consultant
and the Escrow Agent shall forthwith release and deliver the Escrowed Shares
(and any other property then held in escrow) to the Consultant.
(b) If the Consultant dies or suffers a Disability, the Escrow Agent
shall, as promptly as practicable upon receipt of a Notice (signed only by
Parent) delivered by Parent to such effect (and Parent hereby agrees to deliver
such Notice to the Escrow Agent), deliver all the remaining Escrowed Shares (and
any other property then held in escrow) to the Consultant, the legal
representative of the Consultant's estate or other designee.
SECTION 4.03. Forfeiture of Escrow. (a) If either (i) the Consultant
elects to terminate his consultancy with Parent other than for Good Reason or
(ii) the Consultant is terminated by Parent for Cause (each, a "Termination"),
then Parent shall deliver a Notice to the Escrow Agent and to the Consultant
stating that a Termination has occurred. Upon such event, the Consultant shall
have no other rights under this Agreement.
(b) Upon receipt of a Notice set forth in subsection (a) of this
Section 4.03, the Escrow Agent shall as promptly as practicable sell the
Escrowed Shares then in escrow, on behalf of the Consultant, for cash in open
market brokerage transactions. The Escrow Agent shall then deliver the cash
proceeds so received (and any other property then held in escrow) to Parent.
Such cash proceeds shall constitute Liquidated Damages payable to Parent to
compensate Parent for its damages due to the Termination.
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ARTICLE V
Termination of Employment Arrangements
SECTION 5.01. The Consultant and Parent agree that, effective as of
the Effectiveness Date, the Employment Agreement between the Consultant and the
Company (the "Employment Agreement") shall be terminated and of no further force
and effect, and no termination or other amount otherwise payable or benefit
otherwise provided to the Consultant pursuant to the Employment Agreement shall
be payable in connection with the termination contemplated by this Section 5.01.
ARTICLE VI
The Escrow Agent
SECTION 6.01. General. (a) The Escrow Agent shall not deal with the
Escrowed Funds and/or the Escrowed Shares except in accordance with (i) this
Agreement, (ii) written instructions given in conformity with this Agreement or
(iii) instructions agreed to in writing by Parent and the Consultant. The Escrow
Agent shall not be bound in any way by the Merger Agreement or by any agreement
or contract between the Consultant and Parent (whether or not the Escrow Agent
has knowledge thereof), it being understood that the Escrow Agent's only duties
and responsibilities shall be to hold and distribute the Escrowed Funds and to
hold, distribute and/or sell the Escrowed Shares in accordance with the terms of
this Agreement. The Escrow Agent shall not be responsible for any loss resulting
from holding or selling the Escrowed Shares in accordance with the terms of this
Agreement. The Escrow Agent makes no representations and has no responsibility
as to the validity, genuineness or sufficiency of any of the documents or
instruments included in the subject matter of the escrow. The Escrow Agent may
rely and shall be protected in relying upon any Notice, resolution, certificate,
opinion, request, communication, demand, receipt or other paper or document in
good faith believed by it to be genuine and to have been signed or presented by
the proper party or parties.
(b) The Escrow Agent shall not be liable for any action taken or
omitted by it in good faith, except in those cases where the Escrow Agent has
been guilty of negligence or willful misconduct. In the administration of the
escrow account hereunder, the Escrow Agent may execute any of its powers and
perform its duties hereunder directly or through
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agents or attorneys and may consult with counsel, accountants and other skilled
persons to be selected and retained by it. The Escrow Agent shall not be liable
for anything done, suffered or omitted in good faith by it in accordance with
the advice or opinion of any such counsel, accountants or other skilled persons.
(c) Parent hereby agrees to indemnify the Escrow Agent for, and to
hold it harmless against, any loss, liability or expense arising out of or in
connection with this Agreement and the carrying out of its duties hereunder,
including the costs and expenses of defending itself against any claim of
liability, except in those cases where the Escrow Agent has been guilty of
negligence or willful misconduct.
(d) Schedule A hereto lists the Federal tax identification number
for the Consultant.
(e) In the event that the Escrow Agent shall be uncertain as to its
duties or rights hereunder or shall receive instructions, claims or demands from
any party hereto which, in its opinion, conflict with any of the provisions of
this Agreement, it shall be entitled to refrain from taking any action and its
sole obligation shall be to keep safely all property held in escrow until it
shall be directed otherwise in writing by all of the other parties hereto or by
a final order or judgment of a court of competent jurisdiction.
(f) Any corporation into which the Escrow Agent in its individual
capacity may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Escrow Agent in its individual capacity shall be a party, or any corporation to
which substantially all the corporate trust business of the Escrow Agent in its
individual capacity may be transferred, shall be the Escrow Agent under this
Agreement without further act.
SECTION 6.02. Fees. The Escrow Agent's fees and expenses in acting
hereunder (including the reasonable fees, expenses and disbursements of its
counsel), as set forth in writing between Parent and the Escrow Agent prior to
the Effectiveness Date, shall be paid by Parent.
SECTION 6.03. Resignation. The Escrow Agent or any successor Escrow
Agent hereunder may resign by giving 30 days' prior written notice of
resignation to Parent and the Consultant, and such resignation shall be
effective from the date specified in such notice. In case
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the office of Escrow Agent shall become vacant for any reason, and within 10
days after receiving any such notice of resignation, Parent shall appoint a bank
or trust company that is not an Affiliate having capital and undivided surplus
(as reflected in its latest publicly available certified financial statements)
of not less than $50 million and having an office in New York, New York, as
successor Escrow Agent hereunder (a "Successor Escrow Agent") by an instrument
or instruments in writing delivered to such Successor Escrow Agent, the retiring
Escrow Agent and the Consultant, whereupon such Successor Escrow Agent shall
succeed to all the rights and obligations of the retiring Escrow Agent as if
this Agreement were originally executed by such Successor Escrow Agent, and the
retiring Escrow Agent shall duly transfer and deliver to such Successor Escrow
Agent any Escrowed Funds and Escrowed Shares in the form held by it hereunder at
such time. If a Successor Escrow Agent has not been appointed or has not
accepted such appointment by the end of the 30-day period, the retiring Escrow
Agent may apply to a court of competent jurisdiction for the appointment of a
Successor Escrow Agent or other appropriate relief. The costs, expenses and
reasonable attorneys fees that the retiring Escrow Agent incurs in connection
with such a proceeding shall be paid by Parent.
SECTION 6.04 Dispute Resolution. In the event of any dispute between
or conflicting claims by or among the Parent and the Consultant and/or any other
person or entity with respect to the Escrowed Funds or the Escrowed Shares, the
Escrow Agent shall be entitled, in its reasonable discretion, to refuse to
comply with any and all claims, demands or instructions with respect to such
Escrowed Funds or Escrowed Shares so long as such dispute or conflict shall
continue, and the Escrow Agent shall not be or become liable in any way to
Parent or the Consultant for the Escrow Agent's failure or refusal to comply
with such conflicting claims, demands or instructions, except to the extent
under the circumstances such failure would constitute negligence or willful
misconduct on the part of the Escrow Agent. The Escrow Agent shall be entitled
to refuse to act until, at its reasonable discretion, either such conflicting or
adverse claims or demands shall have been finally determined in a court of
competent jurisdiction or settled between the conflicting parties as evidenced
in writing, reasonably satisfactory to the Escrow Agent, or the Escrow Agent
shall have received security or an indemnity satisfactory to the Escrow Agent
sufficient to save the Escrow Agent harmless from and against any and all loss,
liability or expense which the Escrow Agent may incur by reason of the Escrow
Agent's acting. The Escrow Agent may in addition elect to
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commence an interpleader action or seek other judicial relief or orders as the
Escrow Agent may deem necessary.
ARTICLE VII
Representations and Warranties
SECTION 7.01. Representations and Warranties of the Consultant. The
Consultant hereby represents and warrants to Parent as follows:
(a) Authority. The Consultant has all requisite power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by the Consultant. This Agreement has been duly executed and
delivered by the Consultant and, assuming this Agreement constitutes a valid and
binding obligation of Parent, constitutes a valid and binding obligation of the
Consultant enforceable against the Consultant in accordance with its terms
(except insofar as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally, or by principles governing the availability of equitable
remedies). Neither the execution, delivery or performance of this Agreement by
the Consultant nor the consummation by the Consultant of the transactions
contemplated hereby will (i) require any filing with, or permit, authorization,
consent or approval of, any Governmental Entity, (ii) result in a violation or
breach of, or constitute (with or without due notice or lapse of time or both) a
default under, or give rise to any right of termination, amendment, cancelation
or acceleration under, or result in the creation of any Lien upon any of the
properties or assets of the Consultant under, any of the terms, conditions or
provisions of any Contract to which the Consultant is a party or by which the
Consultant or any of the Consultant's properties or assets, including the
Consultant's Shares, may be bound or (iii) violate any judgment, order, writ,
preliminary or permanent injunction or decree or any statute, law, ordinance,
rule or regulation of any Governmental Entity applicable to the Consultant or
any of the Consultant's properties or assets, including the Consultant's Shares.
(b) Brokers. No broker, investment banker, financial advisor or
other person is entitled to any broker's, finder's, financial advisor's or other
similar fee or commission in connection with the transactions contem-
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plated by this Agreement based upon arrangements made by or on behalf of the
Consultant.
SECTION 7.02. Representation and Warranty of Parent. Parent hereby
represents and warrants to the Consultant as follows:
(a) Authority. Parent has all requisite power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by Parent. This Agreement has been duly executed and delivered by
Parent and, assuming this Agreement constitutes a valid and binding obligation
of the Consultant, constitutes a valid and binding obligation of Parent
enforceable against Parent in accordance with its terms (except insofar as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, or by principles governing the availability of equitable remedies).
ARTICLE VIII
Miscellaneous
SECTION 8.01. Expenses. Each of Parent and the Consultant shall pay
its or his own costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby.
SECTION 8.02. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been given if
delivered personally or sent by registered or certified mail (return receipt
requested), postage prepaid, to the parties to this Agreement at the following
addresses or at such other address for a party as shall be specified by like
notice:
To the Consultant:
Xxxx X. Xx
00000 Xxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
To Parent and Sub:
Lucent Technologies Inc.
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000 Xxxxxxxx Xxxxxx
Room 6A 000
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Vice President--Law
To the Escrow Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx
00 Xxxx
Insurance Trust and Escrow Unit
New York, NY 10286
Attention: Sharia Xxxxx-Xxx
All such notices and communications shall be deemed to have been received on the
date of delivery if personally delivered or on the third business day after the
mailing thereof except with respect to the Escrow Agent such date will be the
date of actual receipt.
SECTION 8.03. Assignability. The right of the Consultant to receive
distributions of the Escrowed Shares shall not be assignable, except that, in
the event of the death of the Consultant, such rights may be assigned by bequest
or to the executor or administrator of his estate. This Agreement shall inure to
the benefit of and shall be binding upon the parties hereto and their respective
successors, but shall not be assignable by any party without the prior written
consent of the other parties.
SECTION 8.04. Liquidated Damages. Parent and the Consultant
acknowledge that it will be difficult, and that it may be time-consuming or
impossible, to estimate damages resulting from a Termination prior to the end of
the Term. Accordingly, Parent and the Consultant agree that, in connection with
any such event, any amount of cash from the sale of the Escrowed Shares upon a
Termination shall be liquidated damages resulting from such Termination, and
Parent shall be entitled to receive such amount.
SECTION 8.05. Taxes. (a) The parties hereto agree that (i) unless
and until distributed to Parent, the Escrowed Funds and the Escrowed Shares
shall be treated for all Tax purposes as property of the Consultant and (ii) all
income in respect of the Escrowed Funds and the Escrowed Shares shall be treated
for all Tax purposes as income of the Consultant. The Consultant hereby agrees,
to the extent
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permitted by law, to report for all Tax purposes (including in connection with
any Tax Return) the Escrowed Funds, the Escrowed Shares and any income in
respect thereof in a manner that is consistent with the foregoing.
(b) The Consultant and Parent believe that the delivery to the
Consultant of any Escrowed Shares pursuant to Article IV will not cause the
Consultant to realize income for Federal and state income Tax purposes, and the
Consultant and Parent agree to prepare all Tax Returns in a manner consistent
with this belief.
SECTION 8.06. No Mitigation. The Consultant shall not be required to
mitigate the amount of any payment or distribution provided for in this
Agreement by seeking other employment or consultancies or otherwise, and no such
payment or distribution shall be offset or reduced by the amount of any
compensation or benefits provided to the Consultant in any subsequent employment
or consultancy.
SECTION 8.07. Effectiveness; Termination. Notwithstanding anything
to the contrary contained herein, this Agreement shall become effective only
upon the Effectiveness Date and shall be null and void and of no further force
and effect at any time the Merger Agreement is terminated in accordance with its
terms prior to the Effectiveness Date. Except for Sections 6.01 and 6.02 hereof
which shall survive the termination of this Agreement, this Agreement will
terminate and be of no further force and effect once all of the Escrowed Shares
and all Escrowed Funds have been distributed shall have been paid in accordance
with the terms hereof.
SECTION 8.08. Entire Agreement. With respect to the Escrow Agent,
this Agreement constitutes, and, with respect to the other parties hereto, this
Agreement and the Merger Agreement (and the other agreements contemplated
therein) constitute, the entire agreement between the parties with respect to
the subject matter hereof and supersede all prior agreements and undertakings,
written and oral.
SECTION 8.09. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York without
regard to any applicable conflicts of law principles.
SECTION 8.10. Article and Section Headings. The article, section and
other headings contained in this Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this Agreement.
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SECTION 8.11. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which together shall be deemed to be a single agreement.
SECTION 8.12. Amendment; No Waivers. This Agreement may not be
amended or modified except (a) by an instrument in writing signed by the
Consultant, Parent and the Escrow Agent or (b) by a waiver in accordance with
the following sentence. Any party hereto may (i) extend the time for the
performance of any obligation or other act of any other parties hereto or (ii)
waive compliance with any agreement or condition contained herein. Any such
extension or waiver shall be valid if set forth in an instrument in writing
signed by the party or parties to be bound thereby. Any waiver of any term or
condition shall not be construed as a waiver of any subsequent breach or a
subsequent waiver of the same term or condition, or a waiver of any other term
or condition, of this Agreement. The failure of any party at any time to require
performance of any provision hereof shall in no manner affect its right at a
later time to enforce the same. No waiver by any party of any breach of any term
contained in this Agreement shall be deemed to be or construed as a further or
continuing waiver of any such breach in any subsequent instance or waiver of any
breach of any other term contained in this Agreement.
SECTION 8.13. Jurisdiction; Consent to Service of Process. (a) Each
of the parties to this Agreement hereby irrevocably and unconditionally submits,
for itself and its property, to the jurisdiction and venue of any New York State
court sitting in the County of New York, or any Federal court of the United
States of America sitting in the Southern District of New York and any appellate
court from any such court, in any suit, action or proceeding arising out of or
relating to this Agreement, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such suit, action
or proceeding may be heard and determined in such New York State court, or, to
the extent permitted by law, by removal or otherwise, in such Federal court. It
shall be a condition precedent to each party's right to bring any such suit,
action or proceeding that such suit, action or proceeding, in the first
instance, be brought in such New York State court or, to the extent permitted by
law, by removal or otherwise, in such Federal court. If such New York State
court or such Federal court refuses to accept jurisdiction with respect thereto,
such suit, action or proceeding may be brought in any other court with
jurisdiction. No party to this Agreement may move to (i) transfer any such suit,
action or proceeding from such
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New York State court (other than to remove to such Federal court), or from any
Federal court sitting in the Southern District of New York to another
jurisdiction or district, (ii) consolidate any such suit, action or proceeding
brought in such New York State court or such Federal court with a suit, action
or proceeding in another jurisdiction or district or (iii) dismiss any such
suit, action or proceeding brought in such New York State court or such Federal
court for the purpose of bringing the same in another jurisdiction. Each party
agrees that a final judgment in any such suit, action or proceeding shall be
conclusive and may be enforced in any other jurisdiction by suit on the judgment
or in any other manner provided by law.
(b) Each party to this Agreement hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any New York State court sitting in the County of New York, or any Federal court
sitting in the Southern District of New York. Each party hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such suit, action or proceeding in any such court
and further waives the right to object, with respect to such suit, action or
proceeding, that such court does not have jurisdiction over such party.
SECTION 8.14. Severability. If any term or provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nonetheless remain in full force and effect so long as the economic and legal
substance of the transactions contem plated by this Agreement is not affected in
any manner materially adverse to any party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the transactions contemplated by this Agreement
be consummated as originally contemplated to the fullest extent possible.
SECTION 8.15. Further Assurances. Each of the Consultant and Parent
agree to execute and deliver, upon the written request of any party hereto, any
and all such further instruments and documents as reasonably appropriate
16
16
for the purpose of obtaining the full benefits of this Agreement.
17
17
IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be duly executed as of the date first written above.
LUCENT TECHNOLOGIES INC.
by
/s/ Xxxxxxx X. X'Xxxx
------------------------------
Name: Xxxxxxx X. X'Xxxx
Title: Vice President
REINDEER ACQUISITION, INC.
by
/s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
THE BANK OF NEW YORK,
as Escrow Agent,
by
/s/ Sharia Xxxxx-Xxx
------------------------------
Name: Sharia Xxxxx-Xxx
Title: Assistant Treasurer
XXXX X. XX
/s/ Xxxx X. Xx
------------------------------
Name: Xxxx X. Xx
18
18
YURIE SYSTEMS, INC.
by
/s/ Xxxxx X. Xxx
------------------------------
Name: Xxxxx X. Xxx
Title: Chairman & CEO
19
19
Consented and agreed to as of the date hereof:
LINSANG PARTNERS LLC
by
/s/ Xxxx X. Xx
-------------------------
Name: Xxxx X. Xx
Title: Chairman
20
Schedule A
Name, Address and TIN Number of Shares of
of the Consultant Company Common Stock
Xxxx X. Xx 20,000 1/
00000 Xxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000 950,000 2/
2,200,000 3/
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1. Held jointly by Xxxx X. Xx and Xxxxxx Xx.
2. Held by Xxxxxx Xx.
3. Held through Linsang Partners LLC.
