EXHIBIT 99.8
RELEASE AND AGREEMENT
THIS RELEASE AND AGREEMENT (this "Release") dated as of April 22, 1997 by
and among: CAI Wireless Systems, Inc., a Connecticut corporation ("CAI"), and
the subsidiaries of CAI listed on the signature pages hereto (collectively with
CAI, the "CAI Companies"); BANX Partnership, a Delaware general partnership
("BANX"); MMDS Holdings, Inc., a Delaware corporation ("MMDS Holdings"), and
MMDS Holdings II, Inc., a Delaware corporation ("MMDS Holdings II," and
together with MMDS Holdings, the "BAC Companies"); and NYNEX MMDS Company, a
Delaware corporation ("NYNEX MMDS"), and NYNEX MMDS Holding Company, a Delaware
corporation ("NYNEX MMDS Holding," and together with NYNEX MMDS, the "NYNEX
Companies").
RECITALS
A. The CAI Companies and BANX are parties to a Securities Purchase
Agreement dated as of March 28, 1995, as amended (the "Securities Purchase
Agreement"; capitalized terms defined therein and used but not defined herein
being used as therein defined), pursuant to which CAI issued and sold and BANX
purchased (i) CAI's Term Notes due 2005 (the "Notes") in an aggregate original
principal amount of $30,000,000, (ii) 7,000 shares of CAI's 14% Senior
Preferred Stock, par value $10,000 per share (the "Senior Preferred Stock"),
and (iii) warrants (the "Warrants") to purchase CAI's Series C Convertible
Preferred Stock. The Notes, the Senior Preferred Stock and the Warrants are
referred to herein collectively as the "Purchased Securities."
B. The CAI Companies, NYNEX MMDS and MMDS Holdings are parties to a
Business Relationship Agreement dated as of March 28, 1995, as amended (the "BR
Agreement"), pursuant to which the CAI Companies have, among other things,
granted to NYNEX MMDS and MMDS Holdings options, on a market by market basis,
to cause the CAI Companies to provide wireless cable transmission services to
NYNEX MMDS and MMDS Holdings using the CAI Companies' transmission systems in
specified markets in their respective service areas.
C. The parties are parties to a Modification Agreement dated as of
December 12, 1996 (the "Modification Agreement"), pursuant to which the parties
modified their contractual arrangements under the Securities Purchase Agreement
and the BR Agreement and with respect to the Purchased Securities.
D. The parties are also parties to Amendment No. 1 to the Modification
Agreement, dated as of the date hereof (the "Amendment"), pursuant to which the
parties have agreed to further modifications to their contractual arrangements.
E. The parties desire to enter into this Release in accordance with and
pursuant to the terms and conditions of the Amendment, to provide for the
mutual release of Claims (as defined below) by and between the CAI Companies,
on the one hand, and BANX, the BAC Companies and the NYNEX Companies, on the
other hand.
Accordingly, the parties intending to be legally bound hereby agree as
follows:
. RELEASE BY CAI COMPANIES. Subject to the provisions of Section 3
hereof, each CAI Company, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, does for itself and its
affiliates, successors and assigns, hereby remise, release and forever
discharge BANX and each affiliate thereof, and their respective partners,
shareholders, directors, officers, employees and agents (collectively, "BANX
Releasees"), each BAC Company and each affiliate thereof, and their respective
shareholders, directors, officers, employees and agents (collectively, "BAC
Releasees") and each NYNEX Company and each affiliate thereof, and their
respective shareholders,
directors, officers, employees and agents (collectively, "NYNEX Releasees") of
and from any and all claims, causes of action, suits, actions, proceedings,
debts, dues, sums of money, representations, warranties, covenants, contracts,
controversies, damages, losses, rights, expenses, indemnities, accounts,
reckonings, bonds, judgments, agreements, awards, contracts, promises,
liabilities, obligations, restrictions, executions and demands whatsoever, in
law or in equity or otherwise, whether accrued or contingent, liquidated or
unliquidated, known or unknown, foreseen or unforeseen, asserted or unasserted
(collectively, "Claims"), which such CAI Company or any such affiliate,
successor or assign ever had, now has or may have for, upon or by reason of any
matter, cause or thing whatsoever against any BANX Releasee, BAC Releasee or
NYNEX Releasee from the beginning of the world to the date of this Release, or
which such CAI Company or any such affiliate, successor or assign may hereafter
have against any of them by reason of any matter, act, or omission, cause or
event, which has occurred or which has been done or suffered to be done before
the date of this Release. Without limiting the generality of the foregoing,
but subject to Section 3 below, each CAI Company hereby:
a. releases and forever discharges the BANX Releasees, BAC
Releasees and NYNEX Releasees from any and all Claims, which such CAI Company
or any such affiliate, successor or assign ever had, now has or may have
against any of them from the beginning of the world to the date of this
Release, or which such CAI Company or any such affiliate, successor or assign
may hereafter have against any of them by reason of any matter, act, or
omission, cause or event, which has occurred or which has been done or suffered
to be done before the date of this Release, arising out of, resulting from,
relating to, pursuant to or in connection with the Securities Purchase
Agreement, the Purchased Securities, or the BR Agreement; and
b. releases and forever discharges the BANX Releasees, BAC
Releasees and NYNEX Releasees from any and all Claims associated with any
copyright, patent or other intellectual property rights of each CAI Company,
which such CAI Company or any such affiliate, successor or assign ever had, now
has or may have against any of them from the beginning of the world to the date
of this Release, or which such CAI Company or any such affiliate, successor or
assign may hereafter have against any of them by reason of any matter, act, or
omission, cause or event, which has occurred or which has been done or suffered
to be done before the date of this Release, arising out of, resulting from,
relating to, pursuant to or in connection with the design, engineering,
construction or operation of the transmission systems of the CAI Companies for
the provision of telecommunications services, including without limitation
subscription video programming, Internet access, telephony, two-way voice, and
multimedia data services, whether such systems are currently being designed,
constructed, demonstrated or operated by the CAI Companies.
2. RELEASE BY BANX, BAC COMPANIES AND NYNEX COMPANIES. Subject
to the provisions of Section 3 hereof, BANX, each BAC Company and each
NYNEX Company, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, does for itself and its
affiliates, successors and assigns, hereby remise, release and forever
discharge each CAI Company, and each affiliate thereof, and their
respective shareholders, directors, officers, employees and agents
(collectively, "CAI Releasees") from any and all Claims, which BANX,
such BAC Company or NYNEX Company or any such affiliate, successor
or assign ever had, now has or may have against any of them from the
beginning of the world to the date of this Release, or which BANX,
such BAC Company or NYNEX Company or any such affiliate, successor
or assign may hereafter have against any of them by reason of any matter,
act, or omission, cause or event, which has occurred or which has been
done or suffered to be done before the date of this Release. Without
limiting the generality of the foregoing, but subject to Section 3 below,
BANX, each BAC Company and each NYNEX Company hereby:
a. releases and forever discharges the CAI Releasees from any
and all Claims, which BANX, such BAC Company or NYNEX Company or any such
affiliate, successor or assign ever had, now has or may have against any of
them from the beginning of the world to the date of this Release, or which
BANX, such BAC Company or NYNEX Company or any such affiliate, successor or
assign may hereafter have against any of them by reason of any matter, act, or
omission, cause or event, which has occurred or which has been done or suffered
to be done before the date of this Release, arising out of, resulting from,
relating to, pursuant to or in connection with the Securities Purchase
Agreement, the Purchased Securities, the BR Agreement; and
b. releases and forever discharges the CAI Releasees from any
and all Claims associated with any copyright, patent, including without
limitation U.S. Patent No. 5,559,808, without regard to the enforceability of
any such patent, or other intellectual property rights of BANX, each BAC
Company or NYNEX Company, which BANX, such BAC Company or NYNEX
Company or any such affiliate, successor or assign ever had, now has or may
have against any of them from the beginning of the world to the date of this
Release, or which BANX, such BAC Company or NYNEX Company or any
such affiliate, successor or assign may hereafter have against any of them
in connection with the transmission systems of the CAI Companies located
in Boston, MA and Virginia Beach, VA or by reason of any matter, act, or
omission, cause or event, which has occurred or which has been done or
suffered to be done before the date of this Release, arising out of,
resulting from, relating to, pursuant to or in connection with the
design, engineering, construction or operation of the transmission
systems of the CAI Companies, including without limitation such systems
located in Boston, MA and Virginia Beach, VA, for the provision of
telecommunications services, including without limitation subscription
video programming, Internet access, telephony, two-way voice, and
multimedia data services, whether such systems are currently being
designed, constructed, demonstrated or operated by the CAI Companies.
3. ENFORCEMENT OF RIGHTS/BR AGREEMENT REINSTATEMENT/EQUIPMENT.
a. Nothing in this Release shall preclude any party from
enforcing the performance of any obligations under this Release or under the
Modification Agreement as amended by the Amendment.
b. Nothing in this Release shall preclude any party from
asserting Claims one against the other under the Purchased Securities or the BR
Agreement but only insofar as such claims relate to: (i) in the case of the
Purchased Securities, the obligations of the CAI Companies to make payments of
all amounts due thereunder in accordance with their respective terms; and
(ii) in the case of the BR Agreement and the Purchased Securities all other
obligations thereunder, but only with respect to acts or omissions which arise
after the date of this release. No act, omission, misrepresentation, course of
dealings, breach of promise or failure to act which occurred prior to the date
of this Release shall be asserted by either party as the basis for any Claim.
c. Nothing in this Release shall release any party hereto from
any obligation it may have to return to any other party equipment or other
property of such other party that it may have in its possession or control.
4. INTELLECTUAL PROPERTY RIGHTS.
a. BANX, the BAC Companies, and the NYNEX Companies and each of
them, for good and valuable consideration, hereby grant and agree to grant a
personal, nontransferable, nonexclusive royalty-free license to CAI Wireless
Systems, Inc. and the other CAI Companies, without right of further sublicense
(except to an entity in which one of them is in sole control, directly or
through one or more controlled subsidiaries), under U.S. Patent No. 5,559,808
and any reissue or reexamination thereof and under any patent issuing from any
divisional, continuation, continuation-in-part, or other application deriving
benefit of priority therefrom ("the >808 Series Patents"), to practice methods
and make and use products claimed in any of the >808 Series Patents within the
geographic areas for which CAI Wireless Systems, Inc. and the CAI Companies, as
of the date hereof, hold, or have rights to acquire, leases or licenses for
MMDS, MDS or ITFS spectrum for so long as and to the extent such leases,
licenses and rights to acquire continue in effect (including any renewals
thereof) but not beyond the last to expire of the >808 Series Patents. The
entire right of the CAI Companies to practice methods and make or use products
claimed in any of the >808 Series Patents shall be effective only for so long
as such entities are majority owned by and are under the sole control of CAI
Wireless Systems, Inc.
b. Each CAI Company, for good and valuable consideration, hereby
grants and agrees to grant a personal, nontransferable, nonexclusive royalty-
free license to BANX, the BAC Companies, and the NYNEX Companies and each of
them, without right of further sublicense (except to an entity in which one of
them is in sole control, directly or through one or more controlled
subsidiaries), under any and all patents that are or may be owned, controlled
or acquired by any CAI Company for improvements to any of the inventions
claimed in any of the >808 Series Patents that specifically refer to such >808
Series Patents ("CAI Improvement Patents") to make, use offer for sale, sell
and import products and to practice methods claimed in any such CAI Improvement
Patents within the geographic areas for which CAI Wireless Systems, Inc. and
the CAI Companies, as of the date hereof, hold, or have rights to acquire,
leases or licenses for MMDS, MDS or ITFS spectrum for so long as and to the
extent such leases, licenses and rights to acquire continue in effect
(including any renewals thereof) but not beyond the last to expire of the >808
Series Patents. The entire right of BANX, the BAC Companies and the NYNEX
Companies to practice methods and make or use products claimed in any of the
>808 Series Patents shall be effective only for so long as such entities are
majority owned by and are under the sole control of the BAC Companies or the
NYNEX Companies.
c. No express or implied licenses are granted for subject matter
claimed in any other patents or under or to any other intellectual property
rights owned, held, controlled or acquired by the parties to this agreement,
subsidiaries thereof, or by third parties. Further, no party makes any claim,
representation or warranty concerning (i) the enforceability of any such
patents or suitability thereof for any purpose whatsoever or (ii) infringement
or non-infringement of any other patents or other intellectual property rights
that may result from, or be based on or incident to a party=s exercise of the
rights hereinabove granted to such party.
d. The CAI Companies, on the one hand, and BANX, the BAC
Companies and the NYNEX Companies, on the other hand, each acknowledge and
agree that nothing in this release shall be deemed to release the claim by any
party that it is the joint creator and owner of any intellectual property
jointly created during the term of the BR Agreement, and the parties hereby
acknowledge, confirm and agree that any such jointly created intellectual
property shall continue to be jointly owned.
e. Notwithstanding the foregoing, no party hereto shall be
obligated to provide to, and no party hereto shall have the right to demand
from, any other party hereto, any information or materials of any kind or
nature whatsoever with respect to the subject matter of this Section 4.
5. MISCELLANEOUS.
a. ENTIRE AGREEMENT. This Release constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes any and all previous agreements, representations and understandings
between the parties hereto with respect to such matters whether oral or in
writing.
b. GOVERNING LAW. This Release shall be governed by and
construed in accordance with the law of the State of New York.
c. SEVERABILITY. The invalidity or unenforceability of any
provision of this Release shall not affect the validity or enforceability of
any other provisions of this Release, each of which shall remain in full force
and effect.
d. NO THIRD PARTY BENEFICIARIES. This Release shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Nothing in this Release shall create or be deemed to
create any third party beneficiary rights in any person not party to this
Release.
e . AMENDMENTS. This Release may be amended, supplemented or
modified, and any provision hereof may be waived, only pursuant to a written
instrument making specific reference to this Release signed by each of the
parties hereto.
f. COUNTERPARTS. This Release may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
g. BRING DOWN. The parties agree to re-execute this Release as
of the date of any termination of the BR Agreement in connection with a closing
of a transaction in respect of the CAI Securities as contemplated in the
Amendment.
h. NON-OPPOSITION TO BA-NYNEX MERGER. Simultaneously
with the execution of this Release, CAI agrees to send notices,
substantially in form and substance as the letter attached hereto, to
each and every governmental agency or authority before which CAI has
filed any objection or opposition to the merger of Xxxx Atlantic
Corporation and NYNEX Corporation, withdrawing its opposition, objection
or any request that such governmental agency or authority impose any
conditions upon the merger. CAI agrees that it shall not intervene in,
object to, or seek to condition, any authorization, permit, license,
grant of authority, agreement or undertaking, sought, engaged in, or
conducted by the BAC Companies or the NYNEX Companies, based upon the BAC
Companies= and/or the NYNEX Companies= ownership and exercise of rights
under the Purchased Securities and/or the BR Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Release through
their duly authorized representatives on the day and year first above
written.
CAI WIRELESS SYSTEMS, INC.
By:/S/
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and CEO
ROCHESTER CHOICE TELEVISION, INC.
By:/S/
Name: Xxxx X. Xxxxxx
Title: President
HAMPTON ROADS WIRELESS, INC.
By:/S/
Name: Xxxx X. Xxxxxx
Title: President
EASTERN NEW ENGLAND TV, INC.
By:/S/
Name: Xxxx X. Xxxxxx
Title: President
CONNECTICUT CHOICE TELEVISION, INC.
By:/S/
Name: Xxxx X. Xxxxxx
Title: President
COMMONWEALTH CHOICE TELEVISION, INC.
By:/S/
Name: Xxxx X. Xxxxxx
Title: President
ATLANTIC MICROSYSTEMS, INC.
By:/S/
Name: Xxxx X. Xxxxxx
Title: President
HOUSATONIC WIRELESS, INC. SYSTEMS, INC.
d/b/a CAPITAL CHOICE TELEVISION
By:/S/
Name: Xxxx X. Xxxxxx
Title: President
NISKAYUNA ASSOCIATES, INC.
By:/S/
Name: Xxxx X. Xxxxxx
Title: President
ONTEO ASSOCIATES, INC.
By:/S/
Name: Xxxx X. Xxxxxx
Title: President
NEW YORK CHOICE TELEVISION, INC.
By:/S/
Name: Xxxx X. Xxxxxx
Title: President
CAI TRANSACTIONS P, INC.
By:/S/
Name: Xxxx X. Xxxxxx
Title: President
CAI TRANSACTIONS W, INC.
By:/S/
Name: Xxxx X. Xxxxxx
Title: President
CAI VA TRANSACTIONS, INC.
By:/S/
Name: Xxxx X. Xxxxxx
Title: President
CAI CT HOLDINGS CORP.
By:/S/
Name: Xxxx X. Xxxxxx
Title: President
BANX PARTNERSHIP
By: MMDS Holdings Inc.
By:/S/
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary
By: NYNEX MMDS Company
By:/S/
Name: Xxxxxx Xxxxxx
Title: President
MMDS HOLDINGS INC.
By:/S/
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary
MMDS HOLDINGS II INC.
By:/S/
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary
NYNEX MMDS COMPANY
By:/S/
Name: Xxxxxx Xxxxxx
Title: President
NYNEX MMDS HOLDING COMPANY
By:/S/
Name: Xxxxxx Xxxxxx
Title: President
