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EXHIBIT 10.22
DATED 20 AUGUST 1998
(1) OLIVETTI RESEARCH LIMITED
OLIVETTI TELEMEDIA S.p.A and ORACLE CORPORATION
and
(2) PITCOMP 174 LIMITED
(to be re-named ADAPTIVE BROADBAND LIMITED)
AGREEMENT
relating to the sale of certain assets and an activity of
Olivetti Research Limited
and certain intellectual property rights of Olivetti Telemedia S.p.a
and Oracle Corporation
10.22 Agreement, dated August 20, 1998, between (1) Olivetti Research Limited,
Olivetti Telemedia S.p.A. and Oracle Corporation and (2) Pitcomp 174 Limited (a
wholly-owned subsidiary of the Company), to be renamed Adaptive Broadband
Limited. (Schedules 2 and 3 omitted pursuant to Regulation S-K, Item 601(b)(2).
The Company agrees to furnish to the SEC, on a supplemental basis, a copy of any
omitted schedule upon request of the SEC.)
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THIS AGREEMENT is made the 1998
BETWEEN
(1) OLIVETTI RESEARCH LIMITED ("ORL") registered in England and Wales under
registered no 2025860 whose registered office is at 00X Xxxxxxxxxxx
Xxxxxx, Xxxxxxxxx XX0 0XX, OLIVETTI TELEMEDIA S.p.A ("Olivetti") an
Italian company whose registered office is at Xxx Xxxxxx 00, 00000 Xxxxx,
Xxxxx and ORACLE CORPORATION ("Oracle") a US Corporation whose registered
office is at 000 Xxxxxx Xxxx Xxx, Xxxxxxx Xxxxxx, Xxxxxxxxxx, 00000,
Xxxxxx Xxxxxx of America ("together the Vendor"); and
(2) PITCOMP 174 LIMITED (to be re-named ADAPTIVE BROADBAND LIMITED)
registered in England and Wales under registered no 3552746 whose
registered office is at 00 Xxxxxx Xxxxxx Xxxxxxx Xxxxxxxxx XX0 0XX ("the
Purchaser");
WHEREAS:-
(1) Among other activities ORL undertakes the supply and development of
technology and/or products which provide fixed or mobile broadband
wireless links and/or services embodying any such technology which use
the Intellectual Property. ("xxx Xxxxxxxx")
(2) The Vendor has agreed to sell and the Purchaser has agreed to purchase
the Activity and Intellectual Property (each according to its interest)
upon the terms and subject to the conditions hereinafter contained.
NOW IT IS HEREBY AGREED AS FOLLOWS:-
1. DEFINITIONS
1.1 IN this Agreement and its Schedules the expressions defined below shall
(except where the context otherwise requires) have the following
meanings:-
the "Activity" means the activity of ORL described in recital I.
the "Assets" The Equipment, the Intellectual Property, the
Stock and the Licences
the "Business" the business of supply and development of
technology and/or products which provide fixed or
mobile broadband wireless links and/or services
embodying any such technology together with any
enhancement thereof to be carried on by the
Purchaser of any affiliate of the Purchaser
"Companies Act" the Companies Act of 1985
"Completion" Completion of the sale and purchase of the
Activity and Assets in accordance with the terms
of this Agreement
the "Completion Date" the 20th of August 1998
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the "Customers" Airspan, AT & T, GTE, Lucent, MCI Worldcom,
Nortel, Naval Research Labs and Sprint
"Deferred Consideration" the sum referred to in Clause 3.3
"Directors" Xxxxxx Xxxxxx, Xxxxxx Xxxxxx and
Xxxxx Xx Xxxxxxxxx
the "Disclosure Letter" a letter of even date herewith signed by the
Vendor and addressed to the Purchaser
"Encumbrance" includes any option, right to acquire, rights
of pre-emption, mortgage, charge, pledge,
lien, hypothecation, title retention, right
of set off, counterclaim, trust arrangement,
or other security
the "Equipment" The plant furniture equipment and computers
which are specified in Schedule 1
"FRS" A financial reporting standard issued or
adopted by The Accounting Standards Board
Limited
"Initial Price" the sum of TEN MILLION US DOLLARS (US
$10,000,000)
the "Intellectual Property" the Intellectual Property set out in Schedule
2 of which that part specified in part 2 of
Schedule 2 shall be enjoyed by the Purchaser
under a non-exclusive licence
"Legal and Beneficial Title" full and unrestricted title with the benefit
of quiet possession and free from lawful
interruption and disturbance
"Licences" all contracts arrangements and licences not
ordinarily available in the open market
including but not limited to experimental
radio licences currently used by ORL in the
Activity
the "Purchase Price" the Initial Price and the Deferred
Consideration
the "Purchaser's Solicitors" Messrs Pitmans of 00 Xxxxxx Xxxxxx Xxxxxxx
XX0 0XX
"Revenue" gross total revenue derived from the total of
goods and services, including licenses or
other revenue items, invoiced, or during the
12 months prior to the Earn-Out Date all
before interest and taxes without deduction
of cost of sales and expenses
"SSAP" A statement of standard accounting practice
adopted by The Accounting Standards Board
Limited
the "Stock" The stock of completed and part completed
broadband wireless products and raw materials
for use in the manufacture
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of the same as at close of business on the
working day prior to the Completion Date
the "Transferring Employees" The persons specified in Schedule 3
"VAT" Value Added Tax or any similar tax from time
to time replacing it
the "Vendor's Solicitors" Messrs Taylor Vinters of Merlin Place
Xxxxxx Road Cambridge
the "Warranties" the representations and warranties given by
the Vendor to the Purchaser pursuant to
clause 7
"the 1996 Act" The Employment Rights Act 1996
"the 1981 Regulations" the Transfer of Undertakings (Protection of
Employment) Regulations 1981
1.2 References to statutory provisions shall be construed as references to
those provisions as respectively re-enacted from time to time (whether
before or after the date hereof) and shall include any provisions of
which they are re-enactments.
1.3 Any document expressed to be "in the agreed form" means in a form
approved and for the purpose of identification signed by or on behalf of
the parties thereto.
1.4 The masculine gender shall include the feminine and neuter and the
singular number shall include the plural and vice versa.
1.5 References to persons shall include trustees bodies corporate
unincorporated associations partnerships states and governmental and
administrative entities.
1.6 Save as herein expressly provided otherwise expressions defined in the
Companies Act shall where used herein have the meanings therein given to
them.
1.7 The captions to clauses and sub-clauses or to paragraphs are for the
purposes of information only and are not part of this Agreement and shall
not be used in the construction of any part or the whole of this
Agreement.
1.8 References to clauses sub-clauses paragraphs sub-paragraphs and schedules
relate to the relevant provisions of this Agreement.
2. SALE AND PURCHASE
SUBJECT to the terms of this Agreement ORL shall sell the Legal and
Beneficial Title to the Activity and Assets (other than the Intellectual
Property) and Olivetti and Oracle shall sell the Legal and Beneficial
Title to such of the Intellectual Property as is set out in Schedule 2
Part 1 and shall grant a non-exclusive royalty-free irrevocable perpetual
worldwide license in the Agreed Form to such of the Intellectual Property
as is set out in
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Schedule 2 Part 2 in each case with full title guarantee free from all
Encumbrances and the Purchaser shall purchase as a going concern as at
and from the Completion Date the Activity and Assets for the Purchase
Price and the Initial Price shall be apportioned between the Assets as
follows:
2.1 the Equipment, the Stock
and the Licenses US$500,000
2.2 the Intellectual Property US$9,500,000
TOTAL US$10,000,000
3. Completion
SUBJECT to the provisions of this Agreement the purchase of the Activity
and Assets shall be completed at the offices of the Purchaser's
Solicitors on the Completion Date when and where:
3.1 The Vendor shall deliver to the Purchaser:
(i) in relation to ORL:
(a) the Equipment and the Stock: and
(b) an assignment of the Licenses in the Agreed Form (to the extent it
is able to do so)
(ii) in relation to Olivetti and Oraclea assignment and/or license as the
case may be of the Intellectual Property such assignment and/or
license as the case may be to be in the agreed form and to be
executed by Olivetti and Oracle;
(iii) in relation to (*i) and (ii) above:
(a) the written consent of any mortgagee or other person whose consent
is necessary for the sale of the Activity or any of the Assets
together with a deed of release and a letter of non-crystallization
in the agreed form;
(b) such other documents as may be required to vest in the Purchaser
the entire legal and beneficial ownership of the Activity and
Assets;
3.2 The Purchaser shall pay the Initial Price to the Vendor's Solicitors on
behalf of the Vendor by telegraphic transfer (whose receipt shall be a
good and sufficient discharge to the Purchaser).
3.3 The Deferred Consideration (if any) shall be payable to the Vendor's
Solicitors on behalf of Olivetti and Oracle as a further payment for the
Intellectual Property and shall be either (at the option of Olivetti and
Oracle):
3.3.1 the sum of TWO MILLION FIVE HUNDRED THOUSAND US DOLLARS (US
$2,500,000) and shall be payable within 30 days of service
of a valid written notice
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demanding payment of the same served at any time on or after the
first anniversary of the Completion Date; or
3.3.2 a maximum sum of SEVEN MILLION US DOLLARS (US $7,000,000) calculated
in accordance with clause 3.5 below.
3.4 Olivetti and Oracle shall be entitled at any time after the Completion Date
to choose payment of Deferred Consideration under either clause 3.3.1 or
clause 3.3.2 above by serving written notice on the Purchaser signed by
them both referring to this clause 3.4 and specifying their choice. Once
given such notice cannot be revoked or varied except with the written
consent of the Purchaser which may be given subject to conditions or
refused as the Purchaser may in its absolute discretion think fit. PROVIDED
THAT if no notice has been served by Olivetti and Oracle prior to the
Earn-Out Date (as defined below) Olivetti and Oracle shall be entitled to
specify in the notice that they choose the greater of the sums referred to
in clause 3.3.
3.5 The Deferred Consideration referred to in clause 3.3.2 shall be
calculated as follows:
3.5.1 As soon as reasonably possible after 30 June 2001 (the "Earn-Out
Date") and in any event no later than sixty days thereafter, the
Purchaser will prepare and deliver to Olivetti and Oracle a statement
(calculated in accordance with United Kingdom generally accepted
accounting principles and all relevant SSAPs and FRSs applicable to
the Business) giving a fair view of the Revenue derived from the
Business.
3.5.2 Following receipt of such statement, Olivetti and Oracle will be
afforded a period of sixty days to review and to accept same or within such time
to deliver to the Purchaser a written notice and explanation of any matter of
dispute. Within a further period of thirty days from the end of the review
period, the parties will attempt to resolve in good faith any dispute. Failing
resolution, the unresolved dispute will be referred for a final binding
resolution to an independent accounting firm (being an accounting practice in
the United Kingdom with no less than 100 partners) to act as experts and not as
arbitrators in deciding such matter. Failing agreement between the parties as
to which independent accounting firms to refer to, the President for the time
being of the Institute of Chartered Accountants in England and Wales shall
nominate such firm on the application of either party. The decision of the
independent accounting firm shall (in the absence of manifest error) be final
and binding on the parties both as to the manner in which the determination is
made and as to the subject matter of the determination. The parties shall use
their respective reasonable endeavours to procure that the determination of the
independent accounting firm is made no later than ninety days from its
appointment. Olivetti and Oracle and the Purchaser will co-operate fully with
the independent accounting firm including giving all reasonable access to
records, information and to personnel with a view to enabling such independent
accounting firm to make any determination required by this clause and in
particular the Purchaser shall procure that the independent accounting firm has
access to and shall take copies of any relevant records or information relating
to the Revenue derived from the Business during the twelve months preceding the
Earn-Out Date. The fees of the independent accounting firm shall be borne in
such proportion as it shall in its absolute discretion determine taking into
account the efforts made by the parties to agree the matters in dispute.
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3.5.3 Olivetti and Oracle shall be entitled to Deferred Consideration
in the amount of ten percent (10%) of the Revenue derived from
the Business earned in the twelve months ending on the Earn-Out
Date.
3.5.4 For the avoidance of doubt, the total Deferred Consideration
pursuant to clause 3.3.2 is limited to US $7,000,000 regardless
of the actual amounts earned during the period of twelve months
preceding the Earn-Out Date.
3.5.5 The Purchaser shall pay to the Vendor's Solicitors on behalf of
Olivetti and Oracle by telegraphic transfer (whose receipt
shall be a good and sufficient discharge to the Purchaser) any
Deferred consideration due to them pursuant to clause 3.3.2
within twenty business days after agreement upon, or resolution
of any dispute or the determination of the independent accounting
firm appointed to resolve any dispute with respect to, the
statement of Revenue referred to above.
3.6 To enable Olivetti and Oracle to chose payment of the Deferred
Consideration under clause 3.3.1 or clause 3.3.2 above the Purchaser
agrees to maintain and to deliver to Oracle and Olivetti on a quarterly
basis up-to-date records in relation to the Business as are normally
kept by a business similar to the Business and of sufficient detail to
enable Olivetti and Oracle to assess likely Revenue earned during the
preceding quarter.
3.7 Olivetti and Oracle shall have the right at any reasonable times
during normal business hours upon giving not less than 14 days prior
written notice to the Purchaser but in any event not more than once in
any period of 12 calendar months to require an independent chartered
accountant appointed by them (and at their cost) to inspect all
relevant records relating to the Business (subject to such independent
accountant entering into any reasonable undertaking of confidentiality
required by the Purchaser) in order to verify and determine the Revenue
of the Business for the purpose only of assessing the Revenue for a
given period and the likely amount of Deferred Consideration.
3.8 The Purchaser agrees with Olivetti and Oracle that (save where Olivetti
and Oracle have chosen payment of Deferred Consideration pursuant to
clause 3.3.1) the Purchaser shall not during the period between the
Completion Date and 30 June 2001 (without Olivetti's and Oracle's prior
consent):
3.8.1 cease carrying on the Business;
3.8.2 reorganise or dispose of the Business such that a calculation of
Revenue cannot be properly carried out.
3.9 The Purchaser shall be relieved of its obligations set out in clause
3.8 if the Purchaser pays to the Vendor US$7,000,000 prior to taking
any action as described in 3.8.1 and 3.8.2 save that if the provisions
of clause 3.12.2 have been implemented and the Purchaser has made a
payment of Deferred Consideration to either Olivetti or Oracle pursuant
to clause 3.12.1 the Purchaser shall be relived of its obligations set
out in clause 3.8 if the Purchaser pays the other Vendor the sum of
US$3,500,000.
3.10 The Purchaser agrees that if it disposes of assets (including assigning
or licensing Intellectual Property) of the Business or makes sales from
the Business otherwise than at open market
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arm's length prices during the period between the Completion Date and
30 June 2001 an adjustment shall be made to the calculation of the
Deferred Consideration to properly reflect what the Deferred
Consideration would have been had such disposals or sales been on open
market arm's length prices.
3.11 In the event that the Purchaser may have a claim against the Vendor
pursuant to the Warranties the Purchaser shall be entitled to set off
against the whole or any part of the Deferred Consideration the amount
of any such claim provided that the claim is made as provided in clause
7.7 below. The Purchaser shall be entitled to withhold payment of any
Deferred Consideration due under clause 3.3.1 in the event that a claim
has been made against the Vendor pursuant to the warranties that
remains undischarged provided that the claim is made as provided in
clause 7.7 below. The Vendor shall not be entitled to any other remedy
for breach of Warranty. For the avoidance of doubt this clause is not
intended to limit the Purchaser's remedies in the event of a breach of
this Agreement other than pursuant to the Warranties.
3.12 The Purchaser agrees that Olivetti and Oracle may separately elect to
choose payment of Deferred Consideration under either clause 3.3.1 or
clause 3.3.2 in which event if one such Vendor chooses payment under
clause 3.3.1 and one such Vendor chooses payment under clause 3.3.2 the
Deferred Consideration payable to each Vendor shall be:
3.12.1 to the Vendor who has elected payment under clause 3.3.1 the sum
of ONE MILLION TWO HUNDRED AND FIFTY THOUSAND US DOLLARS (US
$1,250,000); and
3.12.2 to the Vendor who has elected payment under clause 3.3.2 five
percent (5%) of the Revenue earned in the twelve months ending
on the Earn-Out Date up to a maximum sum of THREE MILLION FIVE
HUNDRED THOUSAND US DOLLARS (US $3,500,000).
4. [this clause is left blank]
5. INDEMNITIES
5.1 THE Vendor hereby undertakes:
(a) to pay all debts and liabilities and to observe and perform all
obligations relating to the Activity and the Vendor prior to the
Completion Date; and
(b) to indemnify the Purchaser against:
(i) all losses, costs, claims, demands, and expenses arising in
respect of any breach or non-performance of the foregoing
covenant; and
(ii) any liability arising in respect of the Transferring Employees
in relation to the health and safety of or industrial injury to
the Transferring Employees to the extent that the liability
arises (whether under common law statute equity or otherwise)
from matters or circumstances occurring prior to the Completion
Date.
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5.2 Subject to Clause 5.1 the Purchase hereby undertakes:
(a) to pay all debts and liabilities of and to observe and perform all
obligations relating to the Activity and the Assets incurred by the
Purchaser after the Completions Date; and
(b) to indemnify the Vendor against all losses, costs, claims, demands and
expenses arising in respect of any breach or non-performance of the
foregoing covenant.
6. VALUE ADDED TAX
WHILST it is believed that the sale and purchase to be made hereunder is an
exempt transaction under the provisions of Section 49 of the Value Added
Tax Xxx 0000 and Article 5 of the Value Added Tax (Special Provisions)
Order 1995 it is hereby agreed that the consideration for the sale of the
Assets is stated exclusive of VAT and if for any reason VAT is payable such
VAT shall be paid by the Purchaser in addition against delivery by the
Vendor of a VAT invoice, plus all other documentation required by the
Purchaser to demonstrate the application and payment of such VAT.
7. WARRANTIES
7.1 SUBJECT to matters fully, fairly and accurately disclosed in the Disclosure
Letter (which matters the Vendor hereby warrants to be true) the Vendor
(meaning here each of the three companies comprising the Vendor) hereby
jointly and severally warrants and represents to the Purchaser that each of
the statements made in Schedule 4 is and will at Completion be true and
correct in every particular (and so that none of the paragraphs of Schedule
4 shall be limited or restricted by reference to or inference from the
terms of any other of those paragraphs) as terms and conditions of this
Agreement (and notwithstanding any information the Purchaser may have
received or been given or have had as actual, implied or constructive
notice prior to the signing hereof other than fully, fairly and accurately
disclosed in the Disclosure Letter) and so that insofar as any of the said
terms and conditions relate in whole or in part to present or past matters
of fact they shall be deemed to constitute representations upon the faith
of which the Purchaser has entered into this Agreement.
7.2 If there shall be any breach of any of the said warranties or
representations the Purchaser shall (without prejudice to any other rights
it may have) be entitled to compensations in respect of any loss resulting
from such breach. If at any time after Completions any matter the subject
of a warranty hereinafter set out was not as warranted and the Vendor is in
breach of warranty in respect thereof and the effect of such breach is that
either:
(a) the value of an asset of the Business is less than its value would
have been had there been no such breach of warranty;
(b) the Purchaser has incurred or incurs any liability or contingent
liability which would not have been incurred had there been no such
breach of warranty;
then the Vendor will make good to the Purchaser the amount of the diminution in
the value of the asset(s) or the loss occasioned by such liability by payment
in cash to the Purchaser together with all costs (including reasonable legal
costs on an indemnity basis) and charges and expenses incurred or payable by
the Purchaser either before or after the
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commencement of any action in connection therewith.
7.3 The benefit of the said warranties and representations contained in this
Clause 7 shall be assignable in whole or in part to a Holding Company of
the Purchaser or a Subsidiary of the Purchaser or of such Holding Company
(other than the Purchaser) as those terms are defined in section 736
Companies Act 1985 who shall accordingly be entitled to enforce them
against the Vendor as if he were named in this Agreement as the Purchaser.
7.4 The representations and warranties contained in this Clause 7 and Schedule
4 shall continue in full force and effect after Completion and the
Purchaser shall be entitled to take action in respect of any breach of any
of the representations and warranties given by the Vendor known to or
discoverable by the Purchaser before Completion and the rights of the
Purchaser shall not be affected by Completion, by any investigations made
by or on behalf of the Purchaser into the Activity, by the Purchaser
failing to exercise or delaying in exercising any right or remedy or by
anything else except a specific authorised written waiver or release and no
single or partial exercise of a right shall preclude a further or other
exercise.
7.5 Reference in any Warranty to the knowledge, information or belief of the
Vendor or the awareness of the Vendor or similar means that the Vendor has
made full and proper enquiry into the subject of the Warranty of:
(i) the Directors of ORL;
(ii) the Transferring Employees;
(iii) any other employees of ORL who have a job function material to the
subject matter of the Warranty in question; and
(iv) they have consulted relevant books and records of ORL in relation to
the subject matter of the warranties
7.6 Notwithstanding the provisions of this clause 7, other than in cases of
fraud or wilful misrepresentation, the Vendor's liability under the
Warranties shall be limited as follows:
7.6.1 The Vendor shall not be liable for any claim for breach of Warranty
unless and until the aggregate amount of all such claims exceeds the
sum of ONE HUNDRED THOUSAND US DOLLARS (US$100,000) but if such
aggregate liability shall exceed that sum the Vendor shall be liable
for the whole amount of such claims and not merely the excess;
7.6.2 the maximum aggregate liability of the Vendor for all claims for
breach of Warranty (excluding costs and expenses incurred by or on
behalf of the Purchaser in making and pursuing such claims) shall not
exceed in relation to Olivetti and Oracle together the sum of THREE
MILLION US DOLLARS (US$3,000,000);
7.6.3 the liability of the Vendor under the Warranties shall determine 18
months after Completion other than in relation to a claim in relation
to taxation which shall determine 3 years after Completion except in
each case in respect of a claim of which the Purchaser has given
written notice to the Vendor prior to the relevant date.
7.7 The Purchaser shall as soon as reasonably practicable give notice in
writing of any claim for breach of warrant to the Vendor (specifying in
reasonable detail the event, matter or default
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which gives rise to the claim and so far as practicable an estimate of
the amount claimed). Any such claim that may have been made shall (if it
has not been previous satisfied, settled or withdrawn) be deemed to have
been waived or withdrawn on the expiry of 6 months after the date it was
made unless court proceedings in respect of it shall then have been both
issued and served on the Vendor (or any one or more of them).
8. RESTRICTIVE COVENANTS
8.1 EACH Vendor undertakes to the Purchaser to assure to the Purchaser the
full benefit of the Business and by way of further consideration for the
obligations of the Purchaser under this Agreement that it will neither
on its own account nor in conjunction with, nor on behalf of any person,
firm or company and in any capacity whatsoever, directly or indirectly:
(a) for a period of four years after the Completion Date, solicit or
entice away or endeavor to solicit or entice away from the
Business any of the Transferring Employees; or
(b) for a period of one year after the Completion Date knowingly
offer or procure the offer of employment to any of the
Transferring Employees whether or not such person would commit
any breach of contract by reason of leaving; or
(c) for a period of one year after the Completion Date engage or
employ or offer to engage or employ in connection with the
business of supplying technology and/or products which provide
fixed or mobile broadband wireless links any person who shall be
at Completion an agent of or independent contractor for the
Activity;
8.2 ORL further undertakes to the Purchaser to assure to the Purchaser the
full benefit of the Business and by way of further consideration for the
obligations of the Purchaser under this Agreement that if ORL within a
period of four years from the Completion Date carries on or is engaged,
concerned or interested in carrying on the business of supplying systems
which provide fixed broadband radio wireless links then before offering
such systems to any third party it shall give the Purchaser the right to
acquire (under sale or licence) the systems on an arm's length basis but
on terms no less advantageous than would have been offered to such third
party.
8.3 The Vendor undertakes henceforth not to divulge or use other than for
the benefit of the Business any confidential information of the Activity
contained in the Intellectual Property set out in Schedule 2 Part 1 or
the Licences for a period of five years from the date of acquiring such
confidential information otherwise than to the professional advisers,
officers and employees of the purchaser whose province it is to know the
same and undertakes to use its reasonable endeavours to prevent the
publication or disclosure of any such confidential information save that
this clause shall not prevent any disclosure of confidential information
required by law or by any governmental or other authority or regulatory
body.]
8.4 The restrictions contained in the preceding sub-clauses are considered
reasonable by the Vendor (having taken independent legal advice) and are
considered to be reasonable and necessary for the protection of the
Business.
8.5 The Vendor and the Purchaser agree that in the event that the Vendor
inadvertently breaches its obligations set out in paragraph 8.1 (b) the
Vendor will, upon receipt from the Purchaser
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of a valid notice of such breach, terminate the offer of employment made to
or the employment of any of the Transferring Employees which gives rise to
the breach. Subject to compliance with this sub-clause the Purchaser shall
have no other remedy for such inadvertent breach of paragraph 8.1(b).
9. FURTHER ASSISTANCE
9.1 THE Vendor undertakes to do, execute and perform all such further acts,
deeds, documents or things as the Purchaser may require effectively to vest
legal and beneficial ownership of the Assets in the Purchaser free from all
Encumbrances whatsoever and to give full effect to the terms of this
Agreement.
9.2 Failing compliance by the Vendor with clause 9.1 the Vendor irrevocably
appoints any director of the Purchaser as its attorney with full power and
authority in its name and on its behalf to do everything and to execute all
documents which such attorney in his absolute discretion considers
necessary or desirable to give effect to the provisions of clause 9.1. The
Purchaser agrees to notify the Vendor of any documents executed by it
pursuant to this sub-clause.
10. PUBLICITY
SAVE as may be required by law or by any governmental or other authority or
regulatory body no party shall issue any information or statement to the
press relating to the transaction herein agreed to be effected or any part
of it without the prior written consent of the other parties.
11. SERVICE
THE Vendor hereby irrevocably appoints the Vendor's Solicitors (or the firm
which shall for the time being carry on its practice) to accept service of
notices hereunder.
12. GOVERNING LAW
12.1 THIS Agreement shall be governed by and construed in accordance with
English law and the parties irrevocably agree for the exclusive benefit of
the Vendor that the Courts of England are to have jurisdiction to settle
any disputes which may arise out of or in connection with this Agreement
and that accordingly any suit action or proceeding arising out of or in
connection with this Agreement ("Proceedings") may be brought in such
Courts.
12.2 Without prejudice to clause 12.1 above each of the parties further
irrevocably agrees that any Proceedings may be brought in the Courts of any
country or state other than a Contracting State as defined in Section 1(3)
of the Civil Jurisdiction and Judgements Xxx 0000 in which any party has a
business presence and submits to the non-exclusive jurisdiction of each of
such Courts.
12.3 Nothing contained in this Clause shall limit the right of either party to
take Proceedings against the other party in any other Court of competent
jurisdiction nor shall the taking of proceedings in one or more
jurisdictions preclude the taking of Proceedings in any other jurisdiction
whether concurrently or not.
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12.4 Each of the parties irrevocably waives (and irrevocably agrees not to
raise) any objection which it may have now or subsequently to the
laying of the venue of any Proceedings in any such Court as is referred
to in this Clause and any claim that any such Proceedings have been
brought in an inconvenient forum and further irrevocably agrees that a
judgement in any Proceedings brought in any such Court as is referred
to in this Clause shall be conclusive and binding upon the relevant
party and may be enforced in the Courts of any other jurisdiction.
13. ASSIGNABILITY
EXCEPT as expressly referred to in this Agreement none of the rights of
the parties under this Agreement shall be assigned by either party
without the prior written consent of the other party.
14. NOTICES
14.1 ANY notice or communication to be given under this Agreement shall be
in writing and shall be delivered personally or sent by first class
pre-paid or registered or recorded delivery post (to an address inland)
or by airmail post (to an address overseas) or by facsimile
transmission to the registered office for the time being or the
relevant facsimile number of the party to receive the notice.
14.2 Communications shall be marked for the urgent attention of the
following individuals (or such other individuals as may be subsequently
notified by the appropriate party):-
14.2.1 in the case of the Vendor -- to Xxxxx Xx Xxxxxxxxx and Xxxxx Xxxxxxxx
of Olivetti and to Xxxxxxx Xxxx of Oracle Corporation;
14.2.2 in the case of the Purchaser -- to the Chief Executive Officer for
the time being of the Purchaser and copied to the Chief Financial
Officer for the time being of California Microwave Inc. at 0000
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000 (facsimile number 408
732-4244).
14.3 The notice shall be deemed to be given:-
14.3.1 if delivered personally at the time of delivery; or
14.3.2 if sent by inland post 2 working days after the notice shall have
been posted; or
14.3.3 if sent by overseas airmail post 4 working days after the notice
shall have been posted; or
14.3.4 if sent by facsimile at the time of completion of transmission by
the sender, if received at least two hours before the close of
working hours on a working day and otherwise on the next working day.
14.4 In proving service it shall be sufficient to prove that personal
delivery was made or that the envelope containing the notice was
properly addressed and delivered into the custody of the postal
authorities as a first class pre-paid or registered or recorded
delivery letter or airmail letter or that the facsimile was dispatched
and a confirmatory transmission report received.
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14.5 For the purpose of this clause 14 "working day" means a day on which the
clearing banks in the City of London are open for business and "working
hours" means between the hours of 9:00 am and 5:00 pm inclusive (at the
local time of the recipient of the notice).
15. WAIVER
NO failure to exercise nor any delay in exercising any right or remedy
hereunder by either party shall operate as a waiver thereof nor shall any
single or partial exercise or any right or remedy prevent any further or
other exercise thereof or the exercise of any other right or remedy. The
rights and remedies herein provided are cumulative and not exclusive of
any rights or remedies herein provided by law. In the event that any
matter falls within the scope of more than one of the provisions of this
Agreement nothing shall prevent the Purchaser from enforcing against the
Vendor the more (or most) stringent requirement.
16. SEVERABILITY
EACH of the obligations contained in the clauses and sub-clauses of this
Agreement shall be construed as separate and severable obligations but if
at any time any one or more of the obligations is or becomes invalid
illegal or unenforceable in any respect under law but would be valid if
some part thereof were deleted or the period or area of application
reduced such obligation shall apply with such modification as may be
necessary to make it valid and effective and in any event the validity
legality and enforceability of the remaining clauses and sub-clauses
hereof shall not in any way be affected or impaired thereby.
17. VARIATION
NO alteration, amendment or variation of this Agreement shall be of any
force or effect unless it is in writing and signed (or by some personal
duly authorised by) each of the parties.
18. ENTIRE AGREEMENT
18.1 IT is acknowledged and agreed that this Agreement (including the documents
and instruments referred to herein) shall supersede all prior
representations, arrangements, understandings and agreements between the
parties relating to the subject matter hereof and shall constitute the
entire, complete and exclusive agreement and understanding between the
parties hereto
18.2 The parties irrevocably and unconditionally waive any right they may have
to claim damages for any misrepresentation, arrangement, understanding or
agreement not contained in this Agreement or for any breach of any
representation nor contained in this Agreement (unless such
misrepresentation or representation was made fraudulently);
18.3 It is further acknowledged and agreed that no representations,
arrangements, understandings or agreements (whether written or oral) made
by or on behalf of any of the other parties have been relied upon other
than those expressly set out or referred to in this Agreement.
19. COSTS
EACH party shall pay its own costs and expenses (including the fees of
agents,
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representatives, solicitors, accountants and actuaries engaged by them) in
connection with the negotiation preparation and completion of this
Agreement and all incidental documents.
20. JOINT AND SEVERAL OBLIGATIONS
Where this Agreement is executed by or on behalf of two or more parties
together:-
20.1 those parties' obligations shall take effect as a joint and several
obligations and all references to those parties shall take effect as
references to either of them;
20.2 this Agreement shall not be revoked or impaired as to either of such
parties by the incapacity or insolvency of the other; and
20.3 the Purchaser may release or discharge either party from its obligations
under this Agreement or accept any composition form or make any other
arrangements with either party without releasing or discharging the other
or otherwise prejudicing or affecting the rights and remedies of the
Purchaser against the other.
21. SURVIVAL OF CERTAIN PROVISIONS
THIS Agreement shall remain in full force and effect after Completions in
respect of any matters which shall not have been done observed or performed
prior thereto and all representations, warranties, undertakings and
obligations of the parties shall (except for any obligations fully
performed on Completion) continue in full force and effect notwithstanding
Completion.
22. EXECUTION
22.1 THIS Agreement may be executed in any number of counterparts and by
the parties on different counterparts, but shall not be effective until
each party has executed at least one counterpart and shall be effective
upon delivery by the Purchaser of its duly executed counterpart in
Sunnyvale California.
22.2 Each counterpart shall constitute an original of this Agreement but all the
counterparts shall together constitute one and the same Agreement.
22.3 Delivery by facsimile by any party of a duly executed counterpart shall be
deemed to constitute delivery of any original counterpart of this Agreement
and such facsimile copy shall be capable of being produced in evidence in
court or for registration at any appropriate Registry or otherwise as an
original document by the party or parties to this Agreement to whom such
facsimile is transmitted.
IN WITNESS whereof this Agreement has been executed as a Deed the date first
above written.
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SCHEDULE 1
The Equipment
(Including details of any finance leases hire or hire purchase agreements under
which the Equipment is held)
See Attached Schedule
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SCHEDULE 2
The Intellectual Property
PART 1
Assigned Intellectual Property
See Attached Schedule
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PART 2.
Licensed Intellectual Property
See Attached Schedule
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SCHEDULE 3
The Employees
[Schedule 3 containing a list of employees is omitted pursuant to Regulation
S-K, Item 601(b)(2)]
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SCHEDULE 4
The Warranties
1. ASSETS
1.1 Encumbrances
(a) None of the Assets is subject to and the Vendor has not disposed
of or agreed to dispose of or granted or agreed to grant or
create any Encumbrance in respect of any of the Assets
(b) None of the Assets has been purchased on terms that property does
not pass to the Vendor until full payment is made by it to the
supplier
(c) There has been no exercise purported exercise or claim for any
Encumbrance over any of the Assets and there is no dispute
directly or indirectly relating to any of the Assets
1.2 Equipment
The plant, machinery, vehicles and other equipment comprised in the
Equipment:-
(i) are in a proper state of repair and condition and satisfactory
working order and
(ii) have been regularly and properly maintained and
(iii) would not be expected (if the sale of the Activity did not take
place) to require replacements or additions at a cost in excess
of L2,500 within a period of six months after Completion
(iv) do not contravene any requirement or restriction having the force
of law
(v) (where relevant) are roadworthy and duly licensed for the
purposes for which they are being used
1.3 Stock
The Stock is of merchantable quality and saleable at normal selling
prices
1.4 Title
All documents which in any way affect the right, title or interest of
the Vendor in or to any of the Assets is in the ownership and possession
of the Vendor and all such documents which attract stamp duty have been
duly stamped within the requisite period for stamping
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2. TRADING
2.1 Applicable Laws
ORL and its officers, agents or employees (during the course of their
duties in relation to the Activity) have conducted the Activity in all
respects in accordance with all laws, orders, statutes, all regulations
made under statutes and all regulations or directives of the European
Communities applicable in the United Kingdom (including those made or
issued pursuant to the Treaties of Rome and Paris) and any relevant
foreign country ("Applicable Laws") and have not committed or omitted to
do any act or thing the commission or omission of which is or could be in
contravention of any Applicable Laws and there is no order, decree or
judgment of any court or any governmental agency of the United Kingdom
the European Communities or any foreign country outstanding against the
Vendor or which may have an adverse effect on the Activity or Assets
2.2 Licenses
All necessary permissions licences and consents from any person authority
or body for the proper carrying on of the Activity:-
(a) have been obtained are valid subsisting and are held in the name of
ORL;
(b) have been complied with in all material respects by ORL; and
(c) there are no circumstances (including the sale and purchase
hereunder) which might cause any of the foregoing to become revoked
and no factors that might in any way prejudice the continuance or
renewal of any of those licences or consents
2.3 Guarantees
There is not now outstanding in respect of the Activity any guarantee or
agreement for indemnity or for suretyship given by or for the
accommodation of the Activity
2.4 Relationships with third parties
ORL:-
(a) is not and has not been a party to any joint venture or consortium
or any partnership arrangement or agreement or to any agreement or
arrangement for sharing commissions or other income relating to the
Activity
(b) does not conduct and has not conducted any part of the Activity
through a branch agency or permanent establishment outside the
United Kingdom
(c) is not a member of any partnership, industrial, trade or
professional organisation, association, society or other group
whether formal or informal and whether or not having a separate
legal identity in connection with the Activity and no such body is
relevant to or has any material influence over the Activity as now
carried on
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2.5 Litigation
(a) The Vendor is not now engaged in any litigation arbitration
tribunal inquiry or other proceedings ("Proceedings") as
plaintiff or defendant affecting the Activity or Assets.
(b) To the best of the Vendor's knowledge:-
(i) there are no lawsuits or Proceedings pending or threatened
either by or against the Vendor affecting the Activity or
Assets:
(ii) there are no claims, complaints or disputes affecting the
Activity or Assets;
(iii) no injunction has been granted against the Vendor
affecting the Activity or Assets;
(iv) the Vendor has given no undertaking to any court or to any
third party arising out of any Proceedings affecting the
Activity or Assets; and
(v) there is no matter or fact in existence which might give
rise to the above or form the basis of any criminal
prosecution against the Vendor
(c) No investigations or enquiries by or on behalf of any
governmental or other body in respect of the Vendor the Activity
or any of the Assets are pending or in existence
2.6 Power to contract
(a) The Vendor is entitled to enter into and carry out the provisions
of this Agreement and has full power and authority to sell and/or
licence the Assets to the Purchaser without obtaining the consent
of any third party
(b) Compliance with the terms of this Agreement and any document
entered into by the Vendor in accordance with it does not and
will not conflict with or result in a breach of any of the
provisions of the Vendor's Memorandum or Articles of Association
(c) ORL has at all times carried on the Activity in all respects in
accordance with its Memorandum and Articles of Association for
the time being in force and any other documents to which it is or
has been a party
2.7 Competing Interests
ORL has no interest directly or indirectly in any company or business
other than the Activity which is or is likely to be or become
competitive with the Business
2.8 Contracts
The Vendors have not entered into any contracts agreements or
arrangements (whether formal or informal) in relation to the Activity
(other than contracts of employment)
3. TAXATION
3.1 ORL has disclosed to the Inland Revenue and all other relevant
authorities all payments (in respect of which they owe a duty of
disclosure to the Inland Revenue) in respect of which any PAYE tax and
National Insurance may be due. Without limitation all P11D returns have
been duly completed and returned in relation to the Employees and any
other employees of ORL.
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3.2 ORL has paid to the Inland Revenue and any other appropriate authorities
all taxes, National Insurance contributions and other levies due in respect
of the Employees in respect of their employment by ORL up to the Completion
Date.
4. EMPLOYMENT
4.1 Employment Terms
(a) Schedule 3 comprises a complete list of all employees of ORL who may
transfer to the Purchaser subject to agreement between the Purchaser
and themselves.
(b) No Transferring Employee has given notice terminating his contract of
employment or is under notice of dismissal or will be entitled or so
far as the Vendors are aware intends or is likely to give notice as a
result of the provisions of this Agreement or will become redundant
and be entitled to a redundancy payment as a result of any provision
of this Agreement
(c) There are no arrears of remuneration due to any Transferring Employee.
(d) There is no agreement or understanding (contractual or otherwise)
between ORL and any Transferring Employee with respect to his
employment, his ceasing to be employed or his retirement which is not
included in the written terms of his employment
(e) The copy Service Agreements for the Transferring Employees provided to
the Purchaser are complete and there are no amendments or variations
to them (whether written or oral) which would make the same misleading
or inaccurate
4.2 Loans to Employees
ORL has not made any outstanding loans or advances to any of the
Transferring Employees or ex-employees and is not in the practice of giving
any such loans or advances.
4.3 Compliance with Legislation etc.
4.3.1 ORL has in relation to each of the Transferring Employees
(a) complied with all obligations imposed on it by all statutes and
regulations and codes of conduct and practice relating to employment;
(b) maintained adequate and proper records (including as to any
disciplinary action taken);
(c) complied with all collective agreements for the time being having
effect as regards relations with or the conditions of service of its
employees or the trade unions representing them;
(d) complied with its obligations with respect to the PAYE system National
Insurance and Social Security legislation including making all
payments due thereunder and
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deducting and accounting for all payments or contributions due
from any other person; and
(e) complied with its obligations with respect to statutory sick pay
as defined in the Social Security and Housing Benefits Xxx 0000.
4.3.2 There are no enquiries or investigations existing pending or
threatened into ORL or the Activity by the Equal Opportunities
Commission or the Commission for Racial Equality or other similar
authorities.
4.4 Payments on Termination
Save to the extent (if any) set out in the Disclosure Letter:
(a) no gratuitous payment has been or will at Completion have been
made or promised by ORL (whether or not pursuant to any legally
binding obligation) in connection with the actual or proposed
termination or suspension of employment or variation of any
contract of employment of any Transferring Employee;
(b) ORL has not and will not at Completion have made or agreed to
make any payment to or provided or agreed to provide any benefit
for any Transferring Employee or any dependent of any
Transferring Employee.
4.5 Training
There are no training schemes, arrangements or proposals in existence
at the date of this Agreement.
4.6 Variations of Terms
ORL has not entered into, agreed to or undertaken any obligation
(whether or not legally binding) to alter the rates of remuneration of
or to make any bonus or incentive payments or any benefits in kind or
any payments under a profit sharing scheme or pension arrangement to
or on behalf of any of any Transferring Employees at any future date.
4.7 Outstanding Claims
There is no outstanding claim for breach of any contract of service
or for services or for compensation for unfair or wrongful dismissal
or redundancy or for failure to comply with any order for the
re-engagement or reinstatement of any former employee or for any other
liability accruing from the termination of any contract of employment
or for services by any former employee.
4.8 Attachment of Earnings
ORL has not received notice of an attachment of earnings order made
against any Transferring Employee.
4.9 Profit Related Pay
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ORL has not established or agreed to establish any bonus, commission,
profit sharing scheme, share option scheme, share incentive scheme or
any other scheme or arrangement of any sort (whether in writing, oral or
by custom and practice) under which all or any of the Transferring
Employees are or would be entitled to participate in the profits of the
Activity or which is calculated by reference to the whole or part of the
turnover profits or sales of the Activity and ORL is not a party to any
arrangements or promise to make or in the habit of making ex gratia or
voluntary payments by way of bonus or commission or the like
4.10 Unions
No employee of ORL is a member of a trade union or works council or is
an employee representative and ORL does not have any agreements or
arrangements with any trade unions or other body representing employees
4.11 Employee Disputes
None of the Transferring Employees is involved in any industrial action
or dispute and there are no circumstances which may result in any
industrial action or dispute involving any Transferring Employees and
none of the provisions of this Agreement including the identity of the
Purchaser may lead to any industrial dispute
4.12 Former Employees
4.12.1 So far as the Vendor is aware no former employee of whose employment
with ORL was terminated for whatever reason during the period of two
years preceding the date of this Agreement ("the Relevant Period") has
since the termination of his employment whether on his own account or as
an employee, agent or partner of any other person, firm or company:
(a) rendered any services competing or likely to compete with those
of the Activity
(b) rendered any services competing or likely to compete with those
of the Activity
4.12.2 There is no person previously employed by ORL in the Activity who now
has or may in the future have a right to return to work (whether for
reasons connected with maternity leave or absence by reason of illness
or incapacity or otherwise) or a right to be reinstated or re-engaged in
the Activity or to any other compensation.
5. PENSIONS
5.1 ORL is not under any legal or moral liability (whether actual or
contingent) or obligation or ex-gratia arrangement or promise to pay
pensions, gratuities, superannuation allowances, lump sum payments or
the like to any of the Transferring Employees or any other person nor is
it a party to any arrangements or promise to make or in the habit of
making ex gratia or voluntary payments by way of pension, gratuity,
superannuation allowance, lump sum payment or the like to any such
persons
5.2 There are no schemes or arrangements (whether legally enforceable or not)
for payments of retirement pension disability or death benefit or
similar schemes or arrangements in operation or contemplated in respect
of any of the Transferring Employees or their dependents or persons
formerly employed or engaged in the Activity or their dependents
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under which the Purchaser or any of the owners for the time being of the
Business or Assets or any part thereof may become liable to make payments
or to provide equivalent benefits.
6. INSOLVENCY
(a) No receiver or administrative receiver has been appointed in respect
of the Vendor or over the business or any of the Assets or undertaking
of the Vendor
(b) No administration order has been made and no petition has been
presented for such an order in respect of the Vendor
(c) No meeting has been convened at which a resolution will be proposed,
no resolution has been passed, no petition has been presented and no
order has been made for the winding-up of the Vendor
(d) The Vendor has not stopped or suspended payment of its debts, become
unable to pay its debts (within the meaning of Section 123 of the
Insolvency Act 1986) or otherwise become insolvent.
(e) No unsatisfied judgment, order or award is outstanding against the
Vendor.
(f) No written demand under Section 123(1)(a) of the Insolvency Act 1986
has been made against the Vendor.
(g) No distress or execution has been levied on, or other process
commenced against, the Activity or any of the Assets.
(h) No voluntary arrangement has been proposed under Section 1 of the
Insolvency Xxx 0000 in respect of the Vendor.
(i) No circumstances have arisen which entitle any person to take any
action, appoint any person, commence proceedings or obtain any order
of the type mentioned in this warranty 8
7. INTELLECTUAL PROPERTY
7.1 Ownership of Intellectual Property
So far as the Vendor is aware:-
(a) the Intellectual Property is in the sole absolute legal and beneficial
ownership of Olivetti and Oracle
(b) No person has the right to call for the assignment or grant of a
licence to it of any of the Intellectual Property
(c) None of Olivetti's and Oracle's rights in the Intellectual Property
are being violated, challenged or infringed by any person
(d) The application, registration and renewal fees in respect of the
Intellectual Property
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due up to the Completion Date have been paid in full
7.2 INVENTIONS
As far as the Vendor is aware the manufacture and sale by ORL of products
in connection with the Activity does not infringe the patents, trade
marks, designs, copyright or any similar or other rights of any other
party and is not carried on with the consent of any other party
7.3 LICENCES
All Intellectual Property of Olivetti and Oracle is valid and subsisting
and Olivetti and Oracle have not granted to any third party (other than
ORL) any licence or registered user or other rights of interest over or in
respect of any Intellectual Property
7.4 Creation by third parties
(a) To the extent that any work, invention or material has been developed
or created by a third party for Olivetti and Oracle (including without
limitation any director consultant or employee of Olivetti or Oracle),
Olivetti and Oracle have a written agreement with such third party
with respect thereto and Olivetti and Oracle thereby have obtained
ownership of, and are the exclusive owner of, all Intellectual
Property in such work, material or invention by operation of law or
by valid assignment.
(b) Neither Olivetti nor Oracle have any liability to pay compensation
under sections 40 and 41 of the Patents Xxx 0000.
8. SECRET OR CONFIDENTIAL INFORMATION
8.1 The Vendor has not at any time disclosed to any person other than the
Purchaser:
(a) any of the Intellectual Property or other confidential information
or property (including, without limitation, secret processes,
financial and technical information, designs, drawings, plans, models,
prototypes, statistics, documents, files, records and papers); nor
(b) any other information relating to the Activity, the disclosure of
which might or could cause loss or damage to or adversely affect the
Activity
(c) any secret or confidential information relating to manufacturers,
suppliers, customers, clients and agents of the Activity
9. GENERAL
9.1 Compliance with this Agreement
Compliance with the terms of this Agreement:-
(a) does not and will not conflict with or result in the breach of or
constitute a default under any of the terms, conditions or provisions
of any agreement or instrument to
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which the Vendor is now a party or any loan to or mortgage created
by the Vendor;
(b) will not relieve any other party to a contract with the Vendor of
its obligations thereunder or enable it to determine its obligations
thereunder;
(c) does not require the consent or agreement of any person who is not a
party to it;
(d) so far as the Vendor is aware will not cause the Activity to lose the
benefit of any asset, right, licence or privilege it presently owns
or enjoys;
(e) so far as the Vendor is aware will not result in any officer or senior
employee of the Activity to leave its employment and to the best of
the knowledge information and belief of the Vendor the attitude or
actions of employees and other persons will not be prejudicially
affected thereby.
9.2 ACCURACY OF INFORMATION
(a) The facts and information given in the Recitals, the Schedules to
this Agreement and in the Disclosure Letter are true and accurate
in all material respects, are fairly presented and are not misleading
because of any omission or ambiguity or for any other reason.
(b) All information supplied to the Purchaser, its directors or any of
its professional advisers by or on behalf of the Vendor, the
directors of the Vendor, or their professional advisers in the
course of the negotiations leading to the execution of this
Agreement was when given and is now true and accurate in all respects
and there is no fact or matter not disclosed in such written
documents or communication which renders any such information untrue,
inaccurate, misleading, false or deceptive because of any omissions
or ambiguity or for any other reason.
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EXECUTED (but not delivered )
until the date hereof) as a DEED )
by OLIVETTI RESEARCH )
LIMITED acting by )
Director /s/ XXXX XXXXXX
Secretary /s/ TAYLOR VINTERS
EXECUTED (but not delivered )
until the date hereof) as a DEED )
by PITCOM 174 )
LIMITED acting by )
Director /s/ XXXXXXXXX XXXXXXXX
Secretary /s/ XXXXXX X. XXXXXXX
EXECUTED (but not delivered )
until the date hereof) as a DEED )
by OLIVETTI TELEMEDA )
S p.A. acting by )
/s/ XXXXX XX XXXXXXXXX
--------------------------
Authorised Signatory and
Chief Executive Officer
EXECUTED (but not delivered )
until the date hereof) as a DEED )
by ORACLE CORPORATION )
acting by )
/s/ XXXXX XXXX
--------------------------
Authorised Signatory and
Executive Vice President
Of Corporate Development
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EXECUTED (but not delivered )
until the date hereof) as a DEED )
by ORACLE RESEARCH )
LIMITED acting by )
Director
Director/Secretary
EXECUTED (but not delivered )
until the date hereof) as a DEED )
by PITCOMP 174 )
LIMITED acting by )
Director /s/ XXXXXXXXX XXXXXXXX
Director /s/ XXXXXX X. XXXXXXX
EXECUTED (but not delivered )
until the date hereof) as a DEED )
by OLIVETTI TELEMEDIA )
S.p.A. acting by )
------------------------------
Authorised Signatory and
Chief Executive Officer
EXECUTED (but not delivered )
until the date hereof) as a DEED )
by ORACLE CORPORATION )
acting by )
------------------------------
Authorised Signatory and
Chief Executive Vice President
Of Corporate Development
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