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EXHIBIT 99.3
AGREEMENT AMONG MOLEX, LUMENON AND
CERTAIN STOCKHOLDERS OF LUMENON
This Agreement among Molex, Lumenon and Certain Stockholders of Lumenon
("AGREEMENT") is made this fifth day of April, 2001.
RECITALS
A. Molex Incorporated, a Delaware corporation ("MOLEX INC."), its
subsidiary, Molex, Fiber Optics, Inc., an Illinois corporation
("MOLEX FIBER", and together with Molex Inc., "MOLEX") that was
merged with and into Molex Inc., Lumenon Innovative Lightwave
Technology, Inc., a Delaware corporation ("LUMENON PARENT") and its
subsidiary, Lilt Canada Inc., a Canadian corporation ("LILT", and
together with Lumenon Parent, "LUMENON") entered into a Teaming
Agreement effective as of May 19, 1999 (as amended from time to
time, the "TEAMING AGREEMENT").
B. Molex Inc., Lumenon, Andrewma Holding, Inc., a Nevada corporation
("AHI"), and Najafi Holding, Inc., a Nevada corporation ("NHI")
entered into a Stock Restriction Agreement effective as of June 21,
1999 (as amended from time to time, the "STOCK RESTRICTION
AGREEMENT").
C. Each of Xxxx Xxxxxxx ("XXXXXXX"), Xxxx Xxxxxx ("XXXXXX"), Molex,
Lumenon, AHI and NHI (all of the foregoing collectively, the
"PARTIES") has independently determined that it is in its best
interest to terminate the Teaming Agreement and Stock Restriction
Agreement.
AGREEMENT
Now, therefore, in consideration of the foregoing Recitals (which are
hereby incorporated by reference), the agreements hereafter set forth and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each of the Parties hereby agrees as follows:
1. CAPITALIZED TERMS. Capitalized terms that are used in this Agreement
(including the Exhibits hereto) but not otherwise defined herein shall have the
meanings ascribed to such terms in the Teaming Agreement.
2. AGREEMENT TO TERMINATE THE TEAMING AGREEMENT. On the terms and
conditions set forth herein the Parties (i) mutually agree to terminate the
Teaming Agreement and (ii) acknowledge that the Stock Restriction Agreement
terminates in accordance with its terms; provided, however, that notwithstanding
anything to the contrary in this Agreement, in the Teaming Agreement or in any
other agreement, the following Sections of the Teaming Agreement, and only the
following Sections of the Teaming Agreement, shall survive and
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remain in full force and effect: Sections 1 (to the extent necessary to
interpret the other Surviving Obligations), Subsections 7.1, 8.1 (a)(ii) through
(a)(iv), 8.1(b), 8.2(a)(ii) through (a)(iv), 8.2(b), 8.6 and 8.7 (to the extent
necessary to enforce other Surviving Obligations), and Section 10 (collectively,
the "SURVIVING OBLIGATIONS").
3. OWNERSHIP OF INTELLECTUAL PROPERTY.
A. PROPERTY OF MOLEX. Each of the Parties acknowledges and agrees
that, as among the Parties, Molex has and will have all right, title
and interest in the Intellectual Property or technology listed on
EXHIBIT A. Each of Lumenon, Andrews, Najafi, AHI and NHI
acknowledges that it has no right and will have no right, title or
interest in the Intellectual Property or technology listed on
EXHIBIT A and that it will not seek to obtain any patents,
copyrights, trademark rights, or other proprietary rights with
respect thereto, unless it first obtains Molex's written consent.
B. PROPERTY OF LUMENON. Each of the Parties acknowledges and
agrees that, as among the Parties, Lumenon has and will have all
right, title and interest in the Intellectual Property or technology
listed on EXHIBIT B. Molex acknowledges that it has no right and
will have no right, title or interest in the Intellectual Property
or technology listed on EXHIBIT B and that it will not seek to
obtain any patents, copyrights, trademark rights, or other
proprietary rights with respect thereto, unless it first obtains
Lumenon's written consent.
C. RIGHTS TO JOINT PROPERTY. Except as covered by the disclosures
on EXHIBIT A or EXHIBIT B each of the Parties acknowledges and
agrees that there is no "Agreement Intellectual Property," as such
term was defined in Section 8.5(a) of the Teaming Agreement.
D. RETURN OF INFORMATION. Each of the Parties acknowledges and
agrees that it will take commercially reasonable efforts to return
or destroy any memoranda, notes, lists, records, engineering
drawings, technical specifications and related documents and other
documents or papers (and all copies thereof) relating to any other
party which it has not previously returned or destroyed, including
purging any and all copies of the data from any computer storage
medium.
4. MUTUAL RELEASE.
A. RELEASE. Each of AHI, NHI, Lumenon, their respective officers,
directors, employees, attorneys, agents, Affiliates, successors and
assigns, and as well as Xxxxxxx and Xxxxxx and their respective
heirs, executors, administrators and assigns (all of the foregoing
collectively, the "LUMENON PARTIES"), hereby absolutely, fully and
forever release, waive, relinquish and discharge any and all Claims
(defined below) whatsoever which any of the Lumenon Parties may have
had, may presently have, or in the future may have against each of
Molex and its respective officers, directors, employees, attorneys,
agents, Affiliates, successors and assigns (collectively, the "MOLEX
PARTIES"),which arise, have arisen or may in
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the future arise in whole or in part out of or on account of any
matter or thing whatsoever occurring on or before the date hereof
relating to (i) the Teaming Agreement and/or the Stock Restriction
Agreement or any act or omission of any of the Molex Parties
relating to the Teaming Agreement and/or the Stock Restriction
Agreement, or (ii) any act or omission relating to service on or for
the Board of Directors of Lumenon Parent or LILT. In furtherance of
the foregoing, the Lumenon Parties agree not to xxx or prosecute any
action against any of the Molex Parties with respect to any of the
matters within the scope hereof and agrees to hold each of the Molex
Parties harmless with respect to any such suit or prosecution in
contravention of this section.
The Molex Parties hereby absolutely, fully and forever
release, waive, relinquish and discharge any and all Claims (defined
below) whatsoever which any of the Molex Parties may have had, may
presently have, or in the future may have against each of the
Lumenon Parties, which arise, have arisen or may in the future arise
in whole or in part out of or on account of any matter or thing
whatsoever occurring on or before the date hereof relating to the
Teaming Agreement and/or the Stock Restriction Agreement or any act
or omission of any of the Lumenon Parties relating to the Teaming
Agreement and/or the Stock Restriction Agreement. In furtherance of
the foregoing, the Molex Parties agree not to xxx or prosecute any
action against any of the Lumenon Parties with respect to any of the
matters within the scope hereof and agrees to hold each of the
Lumenon Parties harmless with respect to any such suit or
prosecution in contravention of this section.
B. SURVIVAL OF CERTAIN OBLIGATIONS AND CLAIMS. Notwithstanding
anything that may be construed to the contrary herein, (i) Lumenon
shall remain obligated to Molex and Molex shall remain obligated to
Lumenon with respect to any past, present or future claims that
arise under the Surviving Obligations, (ii) Lumenon shall remain
obligated to indemnify any Person who served on its Board of
Directors to the fullest extent permitted by the Delaware General
Corporate Law, (iii) nothing herein shall be construed to constitute
a waiver of Molex's rights under any insurance policies of Lumenon
for which it was named as an additional insured, and (iv) nothing
herein shall be construed to release any of the Parties from its
express obligations under this Agreement or with respect to Molex
Inc.'s rights to cause Lumenon to register stock of Lumenon.
C. DEFINITION OF CLAIM AND AFFILIATE. As used herein, the terms
"CLAIM" and "CLAIMS" shall mean any and all manner of claims,
contracts, undertakings, demands, damages, liabilities, obligations,
actions, causes, causes of action, suits, debts, sums of money,
accounts, reckonings, bonds, liens, indemnities, bills, specialties,
trespasses, judgments and executions whatsoever in law or in equity
of any kind, nature or description whatever, whether known or
unknown (and if unknown, regardless of whether knowledge of the same
may have affected the decision to make this release), liquidated or
unliquidated, disputed or undisputed, fixed or contingent, mature or
unmatured or based on contract, tort, state or federal statute,
foreign, civil or common law or other legal or equitable theory of
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recovery, which now exist or which may hereafter arise based on any
fact or circumstance arising or occurring on or at any time prior to
the date hereof. As used herein, the term "AFFILIATE" and
"AFFILIATES" shall have the meaning set forth in the Stock Purchase
Agreement.
D. DEFENSE. Each of the Parties agrees that this Agreement may be
pleaded as a full and complete defense to, and may be used as the
basis for any injunction against, any Claim that may be instituted,
prosecuted or attempted in breach of this Paragraph 4; provided,
however, that nothing herein shall operate as a bar to any suit
brought to enforce the terms of this Agreement.
E. WAIVER OF STATUTES, LAWS, ETC. Each of the Parties hereby
waives the terms of any foreign, civil or common law, state or
federal statute, rule, regulation or doctrine of common law which
either
(i) narrowly construes releases or covenants not to xxx that
purport to release or bar the prosecution of claims in whole
or in part based upon, arising from or relating to such act,
omission, causes or thing; or
(ii) prohibits the releasing or barring of the prosecution of
claims.
The agreements and covenants of the Parties contained in this
Agreement are contractual and are not mere recitals and the Parties
acknowledge and agree that no liability whatsoever is admitted on
the part of any of the Parties.
5. REPRESENTATIONS AND WARRANTIES. Each of the Parties represent and
warrant to the other Parties (a) that (i) it has received all necessary consents
to enter into this Agreement, (ii) has full authority to enter into this
Agreement and (iii) has caused this Agreement to be duly executed and delivered;
(b) that this Agreement is binding upon it in accordance with the Agreement's
terms; (c) that execution and performance by such Party of this Agreement will
not (i) violate any provision of law, any order of any court or other agency of
government applicable to such Party or (ii) violate or be in conflict with any
indenture, contract, agreement or other instrument to which each such Party is a
party, or by which any of its respective property is bound; and (d) that it has
not assigned or transferred, or purported to assign or transfer, to any Person
any claim intended to be released herein. Lumenon, Andrews, Najafi, NHI and AHI
represent and warrant that, to the best of their knowledge, no stockholder
agreement among any stockholders of Lumenon Parent exists other than the Stock
Restriction Agreement. The Parties represent and warrant that each of them is
represented by legal counsel of their choice; that each of them has consulted
with counsel regarding this Agreement; that each of them is fully aware of the
terms contained herein; and that each of them has voluntarily and without
coercion or duress of any kind entered into this Agreement. Each and every
provision of this Agreement shall be construed as though the Parties hereto
participated equally in the drafting of the same, and any rule of construction
that a document is to be construed against the drafting party shall not be
applicable to this Agreement.
6. JOINT MEDIA RELEASE. Any of the Parties may issue to the media a
prepared written statement in the form of EXHIBIT C attached hereto. The Parties
agree that other than
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the information expressly contained in EXHIBIT C the Parties shall maintain the
terms of this Agreement confidential as more particularly described in paragraph
8 below.
7. PROHIBITION ON NEGATIVE STATEMENTS. For the twelve month period
immediately following the date of this Agreement, no communications, whether
written or oral, which reference the Parties shall include any disparaging
remarks with respect to the other Parties or to their respective businesses.
Each of the Parties agrees to direct its officers, directors, employees and
agents of their respective businesses to refrain from making any disparaging
remarks regarding any of the other Parties.
8. CONFIDENTIALITY. The Parties agree that they shall maintain
confidential the terms of this Agreement except as expressly permitted in this
Agreement. Each of the Parties shall take commercially reasonable efforts to
ensure that their respective officers, directors, employees, attorneys, agents,
stockholders and Affiliates maintain the confidentiality of this Agreement.
Notwithstanding the foregoing, nothing contained herein shall prohibit any of
the Parties from disclosing the terms of this Agreement to such Party's
officers, key management, employees, attorneys, accountants or other
professional consultants, provided that such persons are also advised of and
agree to be bound by the confidentiality provisions stated herein.
Notwithstanding the provisions of this paragraph 8, any Party may, to the extent
required by law or the regulations of any agency or self-regulatory agency, file
this Agreement with any governmental authority, agency or self-regulatory
agency, provided that prior to disclosing the terms of this Agreement, a Party
shall give the other Parties notice prior to such disclosure as far in advance
as reasonably possible (but in any event not less than 5 days prior to such
disclosure) and the Party seeking to disclose information shall reasonably
cooperate with the other Parties in seeking confidential treatment of any
provision or provisions of this Agreement requested to be kept confidential by
such other Parties.
9. GOVERNING LAW AND ENFORCEMENT. This Agreement shall be governed by
and construed in accordance with the laws of the State of Illinois, U.S.A. and,
subject to Paragraph 10, below, enforcement of this Agreement or any action
taken or held with respect to this Agreement may be taken in state or federal
courts of appropriate jurisdiction located in or serving DuPage county,
Illinois. Each of the Parties agrees that if, at the commencement of or during
such action, a Party does not then reside within the jurisdiction of that court
before which the action is brought, that Party will submit to the jurisdiction
of that court and will accept service of process and any other papers, orders or
judgments; by any method permitted by the rules of that court, by mail, by
private process server or by any other method ordered by the court.
10. DISPUTE RESOLUTION. In the event of any dispute, claim, question, or
disagreement arising from or relating to this Agreement or the breach hereof,
the Parties hereto shall attempt to settle the dispute, claim, question, or
disagreement. To this end, they shall consult and negotiate with each other in
good faith and attempt to reach a just and equitable solution satisfactory to
its Parties. If they do not reach such solution within thirty days, then, upon
notice to the other Parties, dispute claims, questions, or difference shall be
settled by binding arbitration under the Commercial Rules of Arbitration of the
American Arbitration Association by open arbitrator appointed in accordance with
said rules. The arbitration shall be held in Chicago, Illinois and the
arbitrator shall apply Illinois law to the merits of any dispute or claim,
without reference to rules
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of conflict of law. The arbitrator's award shall be in writing and shall specify
the factual and legal bases for the award. The arbitrator will have no authority
to issue an injunction or to award punitive or other damages not measured by the
prevailing party's actual damages and may not, in any event, make any ruling,
finding, or award that does not conform to the terms and conditions of this
Agreement. Judgment on the award rendered by the arbitrator may be entered in
any court having jurisdiction hereof. The arbitral proceedings and all pleadings
and written evidence shall be in English language. Any written evidence
originally in language other than English shall be submitted in English
translation, certified as a true and accurate translation and accompanied by the
original or a true copy thereof. None of the Parties nor an arbitrator may
disclose the existence, contest, or results of any arbitration hereunder without
the prior written consent of all of the Parties. Notwithstanding the foregoing,
the Parties may apply to any court of competent jurisdiction for injunctive
relief without breach of this arbitration provision. Each of the Parties shall
bear its own expenses in connection with the preparation and negotiation of this
Agreement and the consummation of the transactions contemplated hereby.
11. ENTIRE AGREEMENT. This Agreement contains the entire agreement among
the Parties with respect to the subject matter contained herein and supersedes
all prior discussions and agreements, written or oral, with respect thereto. To
the extent that there are any inconsistencies between this Agreement and any
other agreement among any or all of the Parties, this Agreement shall govern.
12. SEVERABILITY. This Agreement shall be deemed severable and the
invalidity or unenforceability of any term or provision shall not affect the
validity or enforceability of this Agreement or of any other term or provision
hereof.
13. HEADINGS. The headings in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
14. EFFECTIVE DATE COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement. This Agreement shall
become effective as of April 5, 2001 upon execution by Molex, Lumenon, NHI,
Najafi, AHI and Xxxxxxx; and the rights and obligations with respect to the
Parties shall become binding upon such execution.
15. PARTIES IN INTEREST. Except as expressly contemplated hereby, this
Agreement shall be binding upon and inure solely to the benefit of each of the
Lumenon Parties and the Molex Parties, and nothing in this Agreement is intended
to confer upon any other Person any rights or remedies of any nature whatsoever
under or by reason of this Agreement. Affiliates, successors and assigns of
Molex, Lumenon, AHI and NHI as well as the heirs, executors, administrators and
assigns of Xxxxxxx and Xxxxxx are expressly entitled to the benefits inuring to
them under this Agreement.
16. FACSIMILE SIGNATURES. A facsimile signature shall be acceptable to
all Parties in lieu of a manually-signed hardcopy signature and any such
facsimile signature shall have the same force and effect, and shall be as
equally binding, as that of a manually-signed hardcopy signature.
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17. LANGUAGE. The Parties have requested that this Agreement and all
documents, notices, consents or other communications contemplated thereby or
relating thereto be drawn up in the English language. Les Parties ont requis que
cette Convention ainsi que tous les documents, avis, consentements ou autres
communications qui y sont envisages ou qui s'y rapportent soient rediges en
langue anglaise.
IN WITNESS WHEREOF, the Parties have executed and approved this Agreement
in all respects as to form and substance and make it fully effective as of the
day set forth on the first page hereof.
MOLEX INCORPORATED LILT CANADA INC.
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Its: President and CEO
By: /s/ Xxxxxx X. Xxx
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Name: Xxxxxx X. Xxx
Its: V.P. New Ventures &
Acquisitions
LUMENON INNOVATIVE LIGHTWAVE NAJAFI HOLDING, INC.
TECHNOLOGY, INC.
By: /s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxx Xxxxxx
----------------------------- ----------------------------
Name: Xxxxxxx Xxxxxxxx Name: Xxxx Xxxxxx
Its: VP Finance and CFO Its: President
ANDREWMA HOLDING, INC.
/s/ Xxxx Xxxxxxx By: /s/ Xxxx Xxxxxxx
--------------------------------- ----------------------------
Xxxx Xxxxxxx Name: Xxxx Xxxxxxx
Its: President
/s/ Xxxx Xxxxxx
---------------------------------
Xxxx Xxxxxx
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EXHIBIT A
Molex Intellectual Property:
- All Initial Molex Intellectual Property
- All passive alignment systems developed by Molex for packaging
optical components, the system utilizing connector parts that
align to optical transmission media. The connector parts
utilize a precision interface that accounts for the spacing
and positioning of the transmission media.
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EXHIBIT B
Lumenon Intellectual Property:
- All Initial Lumenon Intellectual Property (IP)
- Materials - All the IP related to materials and their
processing, developed by Lumenon for planar lightwave circuit
(PLC) devices including, but not limited to, buffer materials,
guiding materials, cladding materials and associated adhesives
and solvents.
- Manufacturing - All the IP related to the manufacturing of
PLCs developed by Lumenon.
- Designs - All the IP in Lumenon's device designs and the
related IP required in generating the designs.
- Packaging - All the IP involved in Lumenon's hermetic active
alignment packaging approach developed by Lumenon.
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EXHIBIT C
LUMENON AND MOLEX MUTUALLY AGREE
TO TERMINATE TEAMING AGREEMENT
Lumenon Innovative Lightwave Technology, Inc. (NASDQ NMS: XXXX) announced
today that it mutually agreed with Molex Incorporated (NASDAQ: MOLX, MOLXA) to
terminate the Teaming Agreement between Lumenon and Molex. The term of the
Teaming Agreement, as amended, ended on December 19, 2000. Under the Teaming
Agreement, Molex and Lumenon agreed to jointly develop products for the
photonics industry. As a result of the termination of the Teaming Agreement, the
Stock Restriction Agreement among Lumenon, Molex and certain stockholders of
Lumenon will also terminate in accordance with its terms.
In addition, Molex and Lumenon have engaged in discussions regarding a
potential agreement under which Molex would have the opportunity to purchase
certain products from Lumenon on mutually agreeable terms and conditions.
Molex and Lumenon have agreed that Xx. Xxxx Xxxxxxx of Molex will remain
on the Lumenon Board of Directors for the remainder of his term.
Molex, based in Lisle, Illinois, USA, is a 63-year-old global manufacturer
of electronic, electrical and fiber optic interconnection products and systems;
switches; value-added assemblies; and application tooling. Molex operates 52
plants in 21 countries and offers approximately 100,000 products through a
network of direct salespeople and authorized distributors. For more information
about Molex visit the company's web site at xxx.xxxxx.xxx.
Lumenon designs, develops and builds integrated optics devices in the form
of compact hybrid glass circuits on silicon chips. These photonic devices -
based upon Lumenon's hybrid glass technology and patented PHASIC(TM) process -
offer communications providers the ability to boost bandwidth in fiber optic
cabling. More information on Lumenon is available at xxx.xxxxxxx.xxx.
This press release contains certain "forward-looking" statements, as
defined in the United States Private Securities Litigation Reform Act of 1995,
that involve a number of risks and uncertainties. There can be no assurance that
such statements will prove to be accurate and the actual results and future
events could differ materially from management's current expectations. Such
factors are detailed from time to time in the Company's filings with the
regulatory authorities having jurisdiction.
