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Exhibit 2.11
TAX SHARING AGREEMENT
This Tax Sharing Agreement, dated ___, 2000, is made by and between MRV
Communications, Inc. ("MRV"), a Delaware corporation, and Luminent, Inc.
("Luminent"), a Delaware corporation.
RECITALS
A. In December, 1999 Luminent was created as a wholly owned subsidiary of MRV
and became a member of the affiliated group of corporations of which MRV was the
common parent (the "MRV Group").
B. During the period that Luminent was a member of the MRV Group, it joined
other members of the group in filing consolidated federal income tax returns.
C. Under the tax laws of some states and foreign jurisdictions, Luminent has
joined other members of the MRV Group in filing consolidated, combined, or
unitary returns. Luminent has made no payments to other members in respect of
its share of the tax liability reported on those returns or to compensate other
members for the use of their losses, credits or similar tax attributes to reduce
Luminent's share of the aggregate tax liability. Similarly, Luminent has
received no payments from other members to compensate Luminent for the use of
its losses, credits, or similar tax attributes to reduce the aggregate tax
liability.
D. Luminent plans to issue new shares of its common stock through a public
offering. Thereafter, pursuant to a Master Separation and Distribution Agreement
dated ______, 2000 between MRV and Luminent, MRV will distribute all of its
stock in Luminent to its shareholders (the "Distribution"). The Distribution
will cause Luminent to leave the MRV Group (the "Separation").
E. In anticipation of Luminent's departure from the MRV Group, MRV and Luminent
would like to allocate responsibilities for certain tax matters. In particular,
the parties would like to provide for the payment by Luminent of its share of
tax liabilities determined on a consolidated, combined, or unitary basis and to
compensate affiliates for the use of their losses, credits, or other tax
attributes to reduce Luminent's share of the aggregate tax liability. Similarly,
the parties would like to provide for the compensation of Luminent for the use
of its losses, credits, or similar tax attributes to reduce the aggregate tax
liability. The parties would also like to provide for compensation or
reimbursement as appropriate to reflect redeterminations of the tax liability of
Luminent for periods during which it joined in the filing of consolidated,
combined, or unitary returns with MRV or other affiliates. Finally, the parties
would like to provide and fix the responsibilities for certain administrative
matters, such as (1) the preparation and filing of tax returns for periods
beginning before the date of the Distribution (the "Distribution Date"), (2) the
payment of taxes shown to be due and payable on those returns (as well as any
estimated or advance payments required before the filing of those returns), (3)
the retention, maintenance and provision of access to all records necessary to
prepare and file appropriate tax returns, and (4) the conduct of audits,
examinations, and proceedings that could
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F. result in a redetermination of tax liabilities of MRV, Luminent or other
subsidiaries of MRV for periods beginning before the Distribution Date.
AGREEMENT
To accomplish the purposes described above, MRV and Luminent agree as
follows:
1. Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
"Affiliate" means, with respect to a specified Person, any other Person that (i)
directly, or indirectly through one or more intermediaries, controls or is
controlled by or is under common control with such Person or (ii) to the extent
not already covered under clause (i), is a member of the same consolidated,
combined or unitary group as the specified Person for Tax purposes.
"Agreement" has the meaning set forth in the Recitals hereof.
"Ancillary Agreements" has the meaning set forth in the Master Separation
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, or any successor
thereto, as in effect for the taxable period in question.
"Contribution" means the transfer of assets and liabilities from MRV to Luminent
pursuant to the Master Separation Agreement.
"Contribution Date" means the date on which the Master Separation Agreement was
executed.
"Distribution" has the meaning set forth in the Recitals of this Agreement.
"Distribution Date" means the date as of which the Distribution will be
effected, as determined by the Board of Directors of Luminent.
"Federal Consolidated Return" means any Tax Return with respect to Federal
Income Taxes filed on a consolidated basis wherein both one or more members of
the MRV Group and one or more members of the Luminent Group join in the filing
of such Tax Return (for any taxable period or portion thereof).
"Federal Income Tax" means any tax imposed under Subtitle A of the Code
(including the taxes imposed by sections 11, 55, 59A, 1201(a) and 1502 of the
Code and the Treasury Regulations promulgated thereunder), and any other
income-based United States federal tax that is hereinafter imposed, plus any
interest, additions to tax or penalties applicable or related thereto.
"Final Determination" means the final resolution of liability of a Party or any
of its relevant Affiliates for any Tax for a taxable period (i) by Internal
Revenue Service Form 870 or 870-AD (or any successor forms thereto), on the date
of acceptance by or on behalf of the IRS, or by a comparable form under the laws
of other jurisdictions, on the date of acceptance by or on behalf
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of the Taxing Authority of such jurisdiction, except that a Form 870 or 870-AD
or comparable form that reserves (whether by its terms or by operation of law)
the right of the taxpayer to file a claim for refund and/or the right of the IRS
or other Taxing Authority to assert a further deficiency shall not constitute a
Final Determination; (ii) by a decision, judgment, decree, or other order by a
court of competent jurisdiction, which has become final and unappealable; (iii)
by a closing agreement or accepted offer in compromise under section 7121 or
7122 of the Code, or comparable agreements under the laws of other
jurisdictions; (iv) by any allowance of a refund or credit in respect of an
overpayment of Tax, but only after the expiration of all periods during which
such refund may be recovered (including by way of offset) by the jurisdiction
imposing the Tax; or (v) by any other final disposition, including by reason of
the expiration of the applicable statute of limitations.
"Indemnified Parties" has the meaning set forth in Section 13(b) of this
Agreement.
"Indemnifying Parties" has the meaning set forth in Section 13(b) of this
Agreement.
"Internal Restructuring" has the meaning set forth in the Recitals of this
Agreement.
"IRS" means the Internal Revenue Service.
"Letter Ruling" means the advance letter ruling expected to be issued by the IRS
to Luminent setting forth certain Federal Income Tax consequences of the
Separation, and any supplemental or additional letter rulings that may be issued
by the IRS to any of the Parties or their Affiliates with respect to the
Separation or any part thereof in response to a ruling request by Luminent or
MRV.
"Luminent Group" means, (i) with respect to any taxable period or portion
thereof ending on or prior to the Contribution Date, Luminent and its Affiliates
and (ii) with respect to any taxable period or portion thereof beginning after
the Contribution Date, Luminent and its Affiliates other than any member of the
MRV Group.
"Master Separation Agreement" means the Master Separation Agreement entered into
by and between Luminent and MRV, dated as of __________, 2000.
"Master Transitional Services Agreement" means the Master Transitional Services
Agreement entered into by and between Luminent and MRV, dated as of __________,
2000.
"MRV" has the meaning set forth in the Preamble of this Agreement.
"MRV Group" means, with respect to any taxable period or portion thereof, MRV
and any Person that directly, or indirectly through one or more intermediaries,
is controlled by MRV.
"Non-Federal Combined Tax" means any tax, other than a Federal Income Tax, with
respect to which a combined, consolidated or unitary return is filed or required
to be filed wherein both one or more members of the MRV Group and one or more
members of the Method Group join in the filing of such Tax Return (for any
taxable period or portion thereof).
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"Non-Federal Combined Tax Return" means any Tax Return relating to any
Non-Federal Combined Tax.
"Opinion of Counsel" means an opinion of independent tax counsel of recognized
national standing and experienced in the issues to be addressed, which
independent tax counsel is acceptable to both MRV and Luminent.
"Original Ruling Request" means the ruling request submissions (together with
all exhibits and appendices thereto) that were submitted to the IRS on behalf of
Luminent.
"Person" means any natural person, corporation, business trust, joint venture,
association, company, partnership, limited liability company or other entity
(regardless of whether such entity is disregarded as an entity separate from its
owner for Federal Income Tax purposes).
"Post-Contribution Period" means a taxable period that begins after the
Contribution Date.
"Post-Distribution Period" means a taxable period that begins after the
Distribution Date.
"Pre-Contribution Period" means a taxable period that ends on or before the
Contribution Date.
"Pre-Distribution Period" means a taxable period that ends on or before the
Distribution Date.
"Public Offering" means the initial public offering by MRV of shares of MRV
common stock pursuant to the S-1.
"Pro Forma MRV Group Combined Return" means a pro forma Non-Federal Combined Tax
Return or other schedule prepared with respect to the MRV Group pursuant to this
Agreement.
"Pro Forma MRV Group Consolidated Return" means a pro forma consolidated Federal
Income Tax Return or other schedule prepared with respect to the MRV Group
pursuant to this Agreement.
"Registration Rights Agreement" means the Registration Rights Agreement entered
into by and between Luminent and MRV, dated as of ___________, 2000.
"Restricted Stock" means stock issued under the Luminent Electronics, Inc.
Incentive Stock Award Plan, including any shares of MRV stock distributed to
holders of Restricted Stock in connection with the Distribution.
"Representative" means with respect to any Person, any of such Person's
directors, officers, employees, agents, consultants, advisors, accountants,
attorneys, and representatives.
"Restricted Period" means the period beginning on the Distribution Date and
ending two years and one day thereafter.
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"Ruling Request" means the Original Ruling Request and any supplemental letter
ruling requests submitted to the IRS by Luminent or MRV (after obtaining MRV's
consent or Luminent's consent, as applicable), pursuant to which the Letter
Ruling is issued.
"S-1" means the registration statement on Form S-1, Registration No. 333-34864,
originally filed by MRV with the Securities and Exchange Commission on April 14,
2000 in connection with the initial public offering of MRV common stock, as it
has been or may be amended.
"Tainting Act" has the meaning set forth in Section 13(b)(i) of this Agreement.
"Tax" means any form of taxation imposed by a national, municipal, governmental,
administrative, judicial, state, federal, foreign, or other body (a "Taxing
Authority"), regardless of when such form of taxation was or is created or
imposed, including any net income, alternative or add-on minimum, gross income,
sales, use, ad valorem, escheat, gross receipts, value added, franchise,
profits, license, transfer, recording, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, property, windfall profit, custom duty,
or other tax, government fee or other like assessment or charge of any kind
whatsoever, together with any related interest, penalties, or other additions to
tax, or additional amount imposed by any such Taxing Authority.
"Tax Asset" means any Tax Item that has accrued for Tax purposes, but has not
been used during a taxable period, and that could reduce a Tax in another
taxable period, including a net operating loss, net capital loss, investment tax
credit, foreign tax credit, charitable deduction or credit related to
alternative minimum tax.
"Tax Benefit" means an amount by which the Tax liability of an Indemnified Party
is reduced (including by (i) deduction, (ii) reduction of income by virtue of
increased tax basis or otherwise, or (iii) entitlement to a Tax refund, credit
or otherwise).
"Tax Detriment" means an amount by which the Tax liability of an Indemnified
Party is increased (including by decreases in Tax refunds and credits).
"Tax Item" means any item of income, gain, loss, deduction, credit, recapture of
credit, or any other item that may have the effect of increasing or decreasing
Taxes paid or payable.
"Tax Return" means any return, filing, questionnaire or other document required
to be filed or that may be filed (including requests for extensions of time,
filings made with estimated Tax payments, claims for refund, elections or
amended returns) for any taxable period with any Taxing Authority in connection
with any Tax (whether or not a payment is required to be made with respect to
such return, filing, questionnaire or other document).
"Taxing Authority" has the meaning set forth in the definition of the term "Tax"
in this Section 1.01.
"Treasury Regulations" means the regulations promulgated under the Code, and any
successor provisions thereof, as in effect for the relevant taxable period.
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The definitions above shall apply equally to both the singular and plural forms
of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine or neuter form. The words
"include," "includes" and "including" when used in this Agreement shall be
deemed to be followed by the phrase "without limitation." The headings contained
in this Agreement are inserted for convenience only and shall not constitute a
part hereof. This Agreement shall be construed in accordance with its fair
meaning and shall not be construed strictly against the drafter.
For purposes of this Agreement, other capitalized terms not defined in this
Agreement shall have the meaning given those terms by the Master Separation and
Distribution Agreement entered into as of _________, 2000 between MRV and
Luminent.
2. COMPUTATION OF TAX LIABILITY.
The computation of Tax liability on any consolidated, combined or unitary return
that includes Luminent and at least one other corporation and covers a period
beginning before the Distribution (a "Pre-Distribution Group Return") shall, to
the extent permitted by law, be made in accordance with the methods used in
comparable returns filed before the date of this Agreement.
3. ALLOCATION OF TAX LIABILITY.
(a) Regular Federal Income Tax. If the consolidated federal income tax
liability of the MRV Group for any taxable year for which the group filed or
files a Pre-Distribution Group Return is determined on a regular tax basis, the
amount of federal income taxes allocable to Luminent shall be determined using
the method described in section 1.1502-32(b)(3)(iv)(D) of the Treasury
regulations. Thus, Luminent shall be required to pay for any reduction in its
separate company liability because of the absorption of losses, credits or other
tax attributes of other members. Conversely, Luminent shall be entitled to
compensation to the extent that the absorption of its losses, credits, or other
tax attributes reduces the group's consolidated federal income tax liability.
(b) Federal Alternative Minimum Tax.
(i) General Rule. If the MRV Group pays alternative minimum tax
(AMT) for any year for which it filed or files a Pre-Distribution Group Return,
Luminent's share of the group's consolidated federal income taxes shall equal
its share of the group's consolidated AMT, determined under Section 3(b)(ii),
with the adjustments provided in Section 3(b)(iii) to reflect the absorption of
losses, credits or other tax attributes.
(ii) Luminent's Share of Consolidated AMT. Luminent's share of
the group's consolidated AMT for any year shall equal the excess, if any, of (A)
the total consolidated AMT, over (B) the consolidated AMT for the year computed
by excluding Luminent's items of income, gain, deduction and loss, and
Luminent's credits.
(iii) Adjustments for Absorption of Tax Attributes. Luminent's
share of the group's consolidated AMT shall be adjusted to reflect the
absorption of losses, credits or other tax attributes, based on principles
similar to those underlying the method of allocating regular federal income
taxes described in section 1.1502-32(b)(3)(iv)(D) of the Treasury regulations.
If, for any taxable year, the regular tax attributes allocable to members other
than Luminent that can be carried forward to the succeeding taxable year are
less than those carryforwards would have been if Luminent had not been a member
of the group, then Luminent's share of the group's
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consolidated federal income tax liability shall be increased to reflect the
incremental absorption of the tax attributes of other members. Conversely, if
Luminent's regular tax attributes are used to offset taxable income of other
members, or tax liability attributable to such income, then Luminent's share of
the group's consolidated federal income tax liability shall be decreased to
reflect such use of Luminent's tax attributes. The amount of the adjustment for
absorbed credits shall equal the amount of those credits. The amount of the
adjustment for absorbed losses shall equal the product of the absorbed losses
and the highest marginal regular federal income tax rate in effect for the year
in which the losses are absorbed. If the adjustment described in this Section
3(b)(iii) exceeds the amount determined in Section 3(b)(ii), the excess shall be
credited against Luminent's liability for other taxable years or, in the case of
taxable years covered by returns filed after the public offering, Luminent shall
be entitled to receive the amount of such excess pursuant to Section 4(b).
(c) Other Taxes. Luminent's share of Taxes other than federal income
taxes that are determined on a consolidated, combined, or unitary basis shall be
determined by applying the principles underlying the allocation method described
in section 1.1502-32(b)(3)(iv)(D) of the Treasury regulations. Thus, Luminent's
share of the Taxes will generally equal the Tax liability that Luminent would
have had if it had filed a separate return for the relevant period. Luminent
shall be required to pay MRV to the extent that Luminent's separate company
liability is reduced by the absorption of losses, credits or other tax
attributes of other members. Conversely, MRV shall compensate Luminent to the
extent that the absorption of Luminent's losses, credits, or other tax
attributes reduces the combined tax liability.
4. PAYMENT OF ALLOCATED TAX.
(a) Returns Filed Before Public Offering. Within 30 days after
completion of the planned public offering of common shares of Luminent, Luminent
shall pay to MRV the net, cumulative amount of its share of the taxes assessed
pursuant to Pre-Distribution Group Returns filed prior to the public offering.
(b) Returns Filed After Public Offering. Luminent shall pay to MRV
Luminent's share of any Tax liability assessed pursuant to a Pre-Distribution
Group Return filed after the public offering referred to in Section 4(a) within
30 days after the filing of that return. Within that same period, MRV shall make
to Luminent any payments required as a result of benefits realized by MRV or
other members of the MRV Group from the use Luminent's tax attributes.
5. REFUNDS.
MRV shall be entitled to receive any overpayment of Taxes shown on any
Pre-Distribution Group Return, as originally filed.
6. ALLOCATION OF MINIMUM TAX CREDITS.
When Luminent leaves the MRV Group, the group shall allocate to Luminent a
portion of its consolidated minimum tax credit equal to the ratio that (a) the
cumulative amounts of consolidated AMT allocated to Luminent pursuant to Section
3(b)(ii) bears to (b) the total amounts of consolidated AMT paid by the MRV
Group for taxable years for which the group filed a Pre-Distribution Group
Return. If the Treasury Department issues regulations that require an allocation
of a different amount of consolidated minimum tax credit to Luminent, Luminent
shall be required to pay (or entitled to receive) the amount by which its share
of the consolidated
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minimum tax credit allocated pursuant to the regulations exceeds (or is less
than) the amount that would have been allocated to Luminent pursuant to this
Section 6.
7. CARRYBACK OF POST-DISTRIBUTION TAX ATTRIBUTES OF LUMINENT.
If, for any taxable period beginning on or after the Distribution Date, Luminent
recognizes a loss, credit, or similar tax attribute that, under applicable law,
can or must be carried back to a taxable period during which Luminent joined in
filing a Pre-Distribution Group Return, MRV shall, at Luminent's expense, file
appropriate refund claims within a reasonable period after being requested by
Luminent. MRV shall promptly remit to Luminent any refunds received with respect
to any tax attribute so carried back.
8. CONDUCT OF TAX CONTESTS.
(a) Separate Luminent Claims. Luminent shall have sole and complete
authority to contest any claim by a taxing authority arising from an examination
of a return that includes only Luminent (a "Separate Luminent Claim").
(b) Group Claims. MRV shall be entitled to control the contest of any
claim by a taxing authority arising from an examination of a Pre-Distribution
Group Return (a "Group Claim"). MRV shall notify Luminent of the commencement of
any such examination and shall keep Luminent apprised of the status of the
examination. Luminent shall be entitled to advise MRV regarding the handling of
claims that could affect Luminent's allocable share of the consolidated,
combined or unitary Tax liability, and MRV shall not unreasonably reject
Luminent's advice. If a claim affects only Luminent's share of the consolidated,
combined or unitary Tax liability, and not that of any other member of the MRV
Group, Luminent shall be entitled to prepare any written materials submitted to
the taxing authority in defense against the claim. Neither Luminent nor its
representatives shall be entitled to attend meetings with representatives of the
taxing authority without MRV's consent. MRV shall have sole authority to make
decisions regarding the settlement of Group Claims. Luminent shall bear any
expenses it incurs in participating in the contest of a Group Claim.
(c) Cooperation. MRV and Luminent shall each provide the assistance
reasonably requested by the other in conducting any tax contest, including
execution of any powers of attorney or other appropriate documentation,
attendance of administrative or judicial proceedings as requested, performance
of necessary computations, and, subject to the confidentiality provisions of
Section 14, provision of access to or furnishing books, records, tax returns,
and supporting work papers.
9. REDETERMINED TAX LIABILITIES.
(a) Separate Luminent Claims. If a redetermination of Taxes results from
a Separate Luminent Claim, Luminent shall pay any resulting increases in Tax
liability and shall be entitled to receive any refunds related to a decrease in
Tax liability attributable to the claim.
(b) Group Claims. Any Tax deficiency arising from a Group Claim shall be
paid to the relevant taxing authority by MRV, and MRV shall be entitled to
receive any tax refund arising from the contest of the Group Claim. Within 30
days after the final determination of the Group Claim, MRV shall allocate the
Tax liabilities for the affected periods, as redetermined, among the members of
the MRV Group that joined in filing the relevant Pre-Distribution Group Returns.
In allocating the redetermined Tax liabilities, MRV shall apply the allocation
method prescribed by Section 3. If the amount of redetermined Tax liability
allocated to Luminent for
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any period exceeds the amounts previously paid by Luminent to MRV in respect of
Luminent's allocated Tax liability for that period, Luminent shall pay such
excess to MRV within 10 days of receiving notice from MRV of the amount due. If
the amounts previously paid by Luminent to MRV in respect of Luminent's
allocated Tax liability for any period exceed the amount of redetermined Tax
liability allocated to Luminent for that period, MRV shall pay such excess to
Luminent within 40 days after the final determination of the Group Claim that
led to the redetermination of Tax liability.
(c) Interest. If applicable law provides for interest on any Tax
deficiency or refund to which Section 9(b) applies, then any payments made
between Luminent and MRV pursuant to that Section as a result of the deficiency
or refund shall also bear interest, computed at the same rate or rates and for
the same period as the deficiency or refund bears interest.
10. RETENTION OF AND ACCESS TO RECORDS; COOPERATION AND ASSISTANCE.
(a) Retention of and Access to Records. Each party shall retain all tax
returns for periods beginning before the Distribution Date, together with all
related reports, work papers, schedules or other documents or computer files,
and, subject to the confidentiality provisions of Section 14, shall make these
documents or files available to the other upon request. Neither party shall
dispose of any of these documents or files without the other's permission.
(b) Cooperation and Assistance. Subject to the confidentiality
provisions of Section 14, MRV and Luminent shall provide each other with such
cooperation, assistance, and information as either of them may reasonably
request of the other with respect to the filing with any taxing authority of any
tax return, amended return, claim for refund, or other document. With respect to
any Pre-Distribution Group Return, such assistance shall include the timely
submission by Luminent to MRV of pro forma tax returns for Luminent, including a
pro forma return for the tax period of Luminent that will end on the
Distribution Date.
11. PREPARATION OF TAX RETURNS; ESTIMATED PAYMENTS.
(a) Filing of Returns. MRV shall prepare and timely file all
Pre-Distribution Group Returns. Within 75 days after the close of each taxable
period (including, if applicable, the period that ends on the Distribution
Date), Luminent shall, subject to the confidentiality provisions of Section 14:
(1) furnish to MRV draft tax returns for Luminent and all supporting information
and documentation useful in preparing the relevant Pre-Distribution Group
Return; (2) allow MRV access at any reasonable time after the Distribution Date
to all tax returns of Luminent and supporting papers for those returns; and (3)
furnish to MRV such additional tax information and documents as MRV may
reasonably request. Luminent shall cooperate in connection with the preparation
of any Pre-Distribution Group Returns. MRV shall be responsible for any payments
to the applicable taxing authorities required in connection with those returns.
(b) Amended Returns. MRV shall not amend any Pre-Distribution Group
Return in a respect that would affect Luminent's allocable share of the Tax
liability for the period covered by the return without providing Luminent an
opportunity to review and comment on the proposed amended return. MRV shall not
unreasonably reject any comments provided by Luminent on the proposed amended
return.
(c) Estimated Payments. MRV shall make all estimated payments to any
taxing authorities required in connection with Pre-Distribution Group Returns,
and all payments
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required in connection with requests for extensions of time to file those
returns. After making such a payment, MRV shall promptly notify Luminent of any
portion of the payment that MRV believes in good faith to be attributable to
Luminent's share of the aggregate Tax liability, as determined under Section 3.
Within 10 days after its receipt of such notice, Luminent shall pay such amount
to MRV or advise MRV of the basis for its disagreement.
12. REPRESENTATIONS AND COVENANTS.
(a) MRV Representations.
(i) MRV has reviewed the Original Ruling Request and, to the best
of MRV's knowledge, these materials, including any representations and
statements concerning MRV, its business operations, capital structure and/or
organization, are true, complete and accurate in all material respects. MRV
shall, and shall cause each member of the MRV Group to, comply in all material
respects with each representation and statement concerning MRV and/or the MRV
Group made in the Ruling Request and in the Letter Ruling. Without limiting the
generality of the foregoing, with respect to any representation or statement
made by, on behalf of, or with respect to MRV or the MRV Group in connection
with the Ruling Request or the Letter Ruling, and to the extent such
representation or statement relates to future actions or events under their
control, neither MRV nor any member of the MRV Group will take (or fail to take)
any action during the Restricted Period that would have caused such
representation or statement to be untrue if MRV or any member of the MRV Group
had planned or intended to take (or fail to take) such action at the time such
representation or statement was made by or on behalf of MRV or the MRV Group.
(ii) MRV hereby represents and warrants that it has no intention
to undertake any of the transactions set forth in Section 12(d)(i)(1), below,
nor does MRV or any member of the MRV Group have any intention to cease to
engage directly in the active conduct of its trade or business (within the
meaning of section 355(b)(2) of the Code).
(b) MRV Covenants.
(i) MRV covenants and agrees on behalf of itself and each other
member of the MRV Group that during the Restricted Period:
(1) MRV and the members of the MRV Group will continue to
engage in the optical products business (including the design and manufacture of
fiber optic products and optical subsystems) and will continue to maintain a
substantial portion of their respective assets and business operations as they
existed immediately prior to the Distribution.
(2) Except as provided in Section 12(b)(iv), below,
neither MRV nor any of its Affiliates nor any of its or their respective
Representatives will undertake, authorize, approve, recommend, permit,
facilitate, enter into negotiations or any contract, or consummate, any
transaction or series of related or unrelated transactions with respect to:
a. the issuance of stock, or any instrument that
could constitute equity for Federal Income Tax purposes, of MRV or any Affiliate
thereof (or any instrument or contract with respect to either, including
options, warrants, rights or securities exercisable for, or convertible into,
stock, or any instrument that could constitute equity for Federal Income Tax
purposes, of MRV or an Affiliate of MRV) other than (x) in the Public Offering
and (y) options and restricted and unrestricted stock (A) issued pursuant to
[_________________], in an amount not to exceed, in the aggregate,
______________ shares or
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options to acquire shares of MRV common stock or (B) the issuance (or in the
case of an option or other right to acquire stock, issuance and exercise) of
which is not treated, pursuant to the Letter Ruling, as an "acquisition" of
stock for purposes of section 355(e) of the Code;
b. the capital stock of, or other equity interest
in, MRV or any of its Affiliates, including any redemptions, repurchases, stock
acquisitions or stock dispositions or the dissolution, merger, consolidation or
complete or partial liquidation of MRV or any of its Affiliates (or any
announcement of any such action), other than (A) stock acquisitions permitted
under Section 12(b)(1)a., above, and (B) normal market trading;
c. the transfer of assets to any Person in which
MRV or any of its Affiliates holds, directly or indirectly, any stock, option,
debt or other interest;
d. any disposition of assets that is outside the
ordinary course of business;
e. the effectuation of any recapitalization of MRV
or any of its Affiliates, including any stock split, reverse stock split, stock
dividend or other change in capital structure (other than the repayment of any
indebtedness outstanding immediately after the Distribution); and
f. the making of any election under Treasury
Regulations promulgated under Code Section 7701, or any successor regulation or
provision, or the taking of any action or the failure to take any action that
could cause an entity disregarded as an entity separate from its owner for
Federal Income Tax purposes not to be disregarded.
(ii) MRV covenants and agrees, on behalf of itself and each other
member of the MRV Group, that neither MRV nor any other member of the MRV Group
will take any position (on a Tax Return, in a Tax proceeding or audit, or
otherwise) that is inconsistent with the Ruling Request or the Letter Ruling.
(iii) MRV covenants and agrees, on behalf of itself and each
other member of the MRV Group, that, in addition to the other representations,
warranties, covenants and agreements set forth in this Agreement, MRV and each
member of the MRV Group will take, or refrain from taking, as the case may be,
such actions as Luminent may require as necessary to ensure that the Separation
qualifies for the intended Tax treatment, including such actions as Luminent
determines may be necessary to preserve the Tax treatment set forth in the
Letter Ruling. Without limiting the generality of the foregoing, MRV covenants
and agrees, on behalf of itself and each other member of the MRV Group, that MRV
and each member of the MRV Group shall cooperate with Luminent if Luminent
determines to obtain additional IRS rulings with respect to the Separation or
any portion thereof, including rulings pertaining to whether any actual or
proposed change in facts and circumstances affects the Tax treatment of the
Separation or any portion thereof, and Luminent shall reimburse MRV for
reasonable third-party costs and expenses directly related to requests for
additional IRS rulings that are initiated by Luminent.
(iv) Following the Distribution Date, MRV and its Affiliates may
take any action or engage in conduct otherwise prohibited by this Section 12(b)
so long as prior to such action or conduct, as the case may be, MRV obtains
Luminent's consent and, if Luminent so requires, Luminent or MRV receives (A) a
ruling from the IRS in form and substance satisfactory to Luminent, in its sole
and absolute discretion, and upon which Luminent can rely, to the effect that
the proposed action or conduct, as the case may be, will not cause the
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Separation or any portion thereof to fail to qualify for the Tax treatment
stated in the Letter Ruling, or (B) an Opinion of Counsel that is in form and
substance satisfactory to Luminent, in its sole and absolute discretion, and
upon which Luminent can rely (which ruling or Opinion of Counsel, as the case
may be, shall be obtained at the sole cost and expense of MRV), to the effect
that the proposed action or conduct, as the case may be, will not cause the
Separation or any portion thereof to fail to qualify for the Tax treatment
stated in the Letter Ruling.
(v) MRV covenants, on behalf of itself and each other member of
the MRV Group, that neither MRV nor any member of the MRV Group will apply for
any additional IRS ruling pertaining to the Separation or any portion thereof
unless, prior to so applying, MRV obtains Luminent's consent. Luminent shall be
entitled to review and approve any request for, or document relating to, any
such ruling prior to its submission to the IRS.
(vi) MRV recognizes that any failure by it or any of its
Affiliates to comply with their obligations under this Section 12(b) may result
in additional Taxes which could cause irreparable harm to Luminent, the Luminent
Affiliates and their stockholders, and that such Persons may be inadequately
compensated by monetary damages for such failure. Accordingly, if MRV or any MRV
Affiliate shall fail to comply with any obligation under this Section 12(b),
then the Parties agree that Luminent and each Luminent Affiliate shall be
entitled to specific performance by MRV or any MRV Affiliate, as the case may
be, of their obligations set forth in this Section 12(b) and/or injunctive
relief in addition to any other remedies.
(c) Luminent Representations.
(i) Luminent has reviewed the Original Ruling Request and, to the
best of Luminent's knowledge, these materials, including any representations and
statements concerning Luminent, its business operations, capital structure
and/or organization, are complete and accurate in all material respects.
Luminent shall, and shall cause each member of the Luminent Group to, comply in
all material respects with each such representation and statement concerning
Luminent and/or the Luminent Group made in the Ruling Request and in the Letter
Ruling. Without limiting the generality of the foregoing, with respect to any
representation or statement made by, or on behalf of, Luminent or the Luminent
Group in connection with the Ruling Request or the Letter Ruling, and to the
extent such representation or statement relates to future actions or events
under their control, neither Luminent nor any member of the Luminent Group will
take (or fail to take) any action during the Restricted Period that would have
caused such representation or statement to be untrue if Luminent or any member
of the Luminent Group had planned or intended to take (or fail to take) such
action at the time such representation or statement was made by or on behalf of
Luminent or the Luminent Group.
(ii) Luminent hereby represents and warrants that it has no
intention to undertake any of the transactions set forth in Section 12(d)(i)(1),
below, nor does Luminent or any member of the Luminent Group have any intention
to cease to engage directly in the active conduct of its trade or business
(within the meaning of section 355(b)(2) of the Code).
(d) Luminent Covenants.
(i) Luminent covenants and agrees on behalf of itself and each
other member of the Luminent Group that during the Restricted Period:
(1) Luminent and the members of the Luminent Group will
continue to engage in the fiber optics products business and will continue to
maintain a substantial portion of
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their respective assets and business operations as they existed immediately
prior to the Distribution;
(2) Except as provided in Section 12(d)(iv), below,
neither Luminent nor any of its Affiliates nor any of its or their respective
Representatives will undertake, authorize, approve, recommend, permit,
facilitate, or enter into negotiations or any contract, or consummate, any
transaction or series of related or unrelated transactions with respect to:
a. the issuance of stock, or any instrument that
could constitute equity for Federal Income Tax purposes, of Luminent or any
Affiliate thereof (or any instrument or contract with respect thereto, including
options, warrants, rights or securities exercisable for, or convertible into,
stock, or any instrument that could constitute equity for Federal Income Tax
purposes, of Luminent or an Affiliate of Luminent) in a single transaction or in
a series of related or unrelated transactions other than options and stock (A)
issued pursuant to the Luminent Stock Option Plan, as approved by the Board of
Directors of Luminent on _________, 2000 (without regard to subsequent
amendments thereto), or (B) the issuance (or in the case of an option or other
right to acquire stock, issuance and exercise) of which is not treated, pursuant
to the Letter Ruling, as an "acquisition" of stock for purposes of section
355(e) of the Code;
b. the capital stock of, or other equity interest
in, Luminent or any of its Affiliates, including any redemptions, repurchases,
stock acquisitions or stock dispositions or the dissolution, merger,
consolidation or complete or partial liquidation of Luminent or any of its
Affiliates (or any announcement of any such action), other than (A) stock
acquisitions permitted under Section 12(d)(i)(1)a., above, and (B) normal market
trading;
c. the transfer of assets to any Person in which
Luminent or any of its Affiliates holds, directly or indirectly, any stock,
option, debt or other interest;
d. any disposition of assets that is outside the
ordinary course of business;
e. the effectuation of any recapitalization of
Luminent or any of its Affiliates, including any stock split, reverse stock
split, stock dividend or other change in capital structure (other than the
repayment of any indebtedness outstanding immediately after the Distribution);
and
f. the making of any election under Treasury
Regulations promulgated under Code Section 7701, or any successor regulation or
provision, or the taking of any action or the failure to take any action that
could cause an entity disregarded as an entity separate from its owner for
Federal Income Tax purposes not to be disregarded.
(ii) Luminent covenants and agrees, on behalf of itself and each
other member of the Luminent Group, that neither Luminent nor any other member
of the Luminent Group will take any position (on a Tax Return, in a Tax
proceeding or audit, or otherwise) that is inconsistent with the Ruling Request
or the Letter Ruling.
(iii) Luminent covenants and agrees, on behalf of itself and each
other member of the Luminent Group, in addition to the other representations,
warranties, covenants and agreements set forth in this Agreement, Luminent and
each member of the Luminent Group will take, or refrain from taking, as the case
may be, such actions as Luminent may require as necessary to ensure that the
Separation qualifies for the intended Tax treatment, including such
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actions as Luminent determines may be necessary to preserve the Tax treatment
set forth in the Letter Ruling. Without limiting the generality of the
foregoing, Luminent covenants and agrees, on behalf of itself and each other
member of the Luminent Group, that Luminent and each member of the Luminent
Group shall cooperate with MRV if MRV determines to obtain additional IRS
rulings with respect to the Separation or any portion thereof, including rulings
pertaining to whether any actual or proposed change in facts and circumstances
affects the Tax treatment of the Separation or any portion thereof, and MRV
shall reimburse Luminent for reasonable third-party costs and expenses directly
related to requests for additional IRS rulings that are initiated by MRV.
(iv) Following the Distribution Date, Luminent and its Affiliates
may take any action or engage in conduct otherwise prohibited by this Section
12(d) so long as prior to such action or conduct, as the case may be, Luminent
obtains MRV's consent and, if MRV so requires, Luminent or MRV receives (A) a
ruling from the IRS in form and substance satisfactory to MRV, in its sole and
absolute discretion, and upon which MRV can rely, to the effect that the
proposed action or conduct, as the case may be, will not cause the Separation or
any portion thereof to fail to qualify for the Tax treatment stated in the
Letter Ruling, or (B) an Opinion of Counsel that is in form and substance
satisfactory to MRV, in its sole and absolute discretion, and upon which MRV can
rely (which ruling or Opinion of Counsel, as the case may be, shall be obtained
at the sole cost and expense of Luminent), to the effect that the proposed
action or conduct, as the case may be, will not cause the Separation or any
portion thereof to fail to qualify for the Tax treatment stated in the Letter
Ruling.
(v) Luminent covenants, on behalf of itself and each other member
of the Luminent Group, that neither Luminent nor any member of the Luminent
Group will apply for any additional IRS ruling pertaining to the Separation or
any portion thereof unless, prior to applying, Luminent obtains MRV's consent.
MRV shall be entitled to review and approve any request for, or document
relating to, any such ruling prior to its submission to the IRS.
(vi) Luminent recognizes that any failure by it or any of its
Affiliates to comply with their obligations under this Section 12(d) may result
in additional Taxes which could cause irreparable harm to MRV, the MRV
Affiliates and their stockholders, and that such Persons may be inadequately
compensated by monetary damages for such failure. Accordingly, if Luminent or
any Luminent Affiliate shall fail to comply with any obligation under this
Section 12(d), then the Parties agree that MRV and each MRV Affiliate shall be
entitled to specific performance by Luminent or any Luminent Affiliate, as the
case may be, of their obligations set forth in this Section 12(d) and/or
injunctive relief in addition to any other remedies.
(e) Redetermination.
If, after the date hereof, the IRS issues Treasury Regulations under, or other
guidance regarding, Section 355(e) of the Code, the Parties hereby agree to meet
to review the conditions, requirements and covenants set forth in this Article
12, and to consider making appropriate revisions to this Article 12 as well as
seeking any additional rulings as may be appropriate in light of such
regulations or other guidance.
13. INDEMNITY OBLIGATIONS.
(a) Breach. Luminent and MRV shall each indemnify and hold harmless the
other Party and its Affiliates from and against the breach by any member of the
Luminent Group or the
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MRV Group, as the case may be, of any representation, covenant, statement,
promise or obligation under this Agreement.
(b) Tax Indemnification. Notwithstanding any other provision of this
Agreement to the contrary:
(i) If either of MRV or any of its Affiliates or Luminent or any
of its Affiliates (collectively, jointly and severally, the "Indemnifying
Parties") takes any action prohibited by Article 12, above, or violates a
representation or covenant contained in Article 12, above, or takes or fails to
take any other action (any such action, failure to act or violation, a "Tainting
Act") and the Separation or any portion thereof fails to qualify for the Tax
treatment stated in the Letter Ruling in whole or in part as a result of such
Tainting Act, then the Indemnifying Parties shall (jointly and severally)
indemnify and hold harmless the other party and its Affiliates (collectively,
the "Indemnified Parties") against any and all Taxes and any other costs and
liabilities imposed upon or incurred by the Indemnified Parties as a result of
the Tainting Act, including any liability of the Indemnified Parties arising
from Taxes imposed on shareholders of a party to the extent (1) any shareholder
or the IRS or other Taxing Authority successfully seeks recourse against the
Indemnified Parties on account of any such Tainting Act, or (2) the Indemnified
Parties assume or otherwise incur any liability for such Taxes or other costs or
liabilities of such shareholders;
(ii) MRV and its Affiliates shall (jointly and severally)
indemnify and hold harmless Luminent and its Affiliates for any Tax imposed upon
or incurred by Luminent and its Affiliates as a direct or indirect result of any
action taken after the Distribution by MRV or any of its Affiliates. In
addition, if the Distribution is ultimately determined to be taxable to Luminent
and/or Luminent's shareholders (other than in connection with cash in lieu of
fractional shares) and MRV or its Affiliates are not otherwise required to
indemnify and hold Luminent and its Affiliates harmless with respect to that
determination under the other provisions of this Agreement, then MRV and its
Affiliates will indemnify and hold Luminent and its Affiliates harmless for 50%
(fifty percent) of any such Tax or other liability payable by Luminent and its
Affiliates as a result of that determination.
(iii) Luminent and its Affiliates shall (jointly and severally)
indemnify and hold harmless MRV and its Affiliates for any Tax imposed upon or
incurred by MRV and its Affiliates as a direct or indirect result of any action
taken after the Distribution by Luminent or any of its Affiliates. In addition,
if the Distribution is ultimately determined to be taxable to MRV and/or MRV's
shareholders (other than in connection with cash in lieu of fractional shares)
and Luminent or its Affiliates are not otherwise required to indemnify and hold
MRV and its Affiliates harmless with respect to that determination under the
other provisions of this Agreement, then Luminent and its Affiliates will
indemnify and hold MRV and its Affiliates harmless for 50% (fifty percent) of
any such Tax or other liability payable by MRV and its Affiliates as a result of
that determination.
(c) Tender Offer or Purchase Offer. Notwithstanding anything to the
contrary set forth in this Agreement, if, during the Restricted Period, any
Person or group of Persons acquires beneficial ownership of MRV or Luminent
common stock (or any other class of outstanding MRV or Luminent stock) or
commences a tender or other purchase offer for the capital stock of MRV or
Luminent or initiates any other form of transaction to acquire directly or
indirectly MRV or Luminent stock, upon
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consummation of which such Person or group of Persons would acquire beneficial
ownership of MRV or Luminent common stock (or any other class of outstanding MRV
or Luminent stock) such that the Separation or any portion thereof shall fail to
qualify for the Tax treatment stated in the Letter Ruling as a result of such
acquisition, tender or other purchase offer, or other form of transaction, then
the Indemnifying Parties shall indemnify and hold harmless the Indemnified
Parties against any and all Taxes and any other costs and liabilities imposed
upon or incurred by the Indemnified Parties and/or their shareholders as a
result of the failure of the Separation or any portion thereof to so qualify.
(d) Tax Indemnity Payments. An Indemnifying Party shall make any payment
or indemnity required by this Article V no later than 30 days after receipt of
written notice from the Indemnified Parties of such payment or indemnity
obligation, which notice shall be accompanied by a computation of the amounts
due.
14. GROSS-UP FOR TAXES ON REQUIRED PAYMENTS.
If the receipt or accrual of any payment required by this Agreement is subject
to any Tax, the payor shall pay an additional amount so that the total amount
received by the payee, net of any applicable Taxes, equals the amount of the
required payment.
15. CONFIDENTIALITY OF DOCUMENTS AND INFORMATION.
Any documents or information provided pursuant to this Agreement in connection
with a tax contest or filing with a tax authority shall be provided or disclosed
by the recipient only to those of its employees responsible for the tax contest
or filing or to attorneys or accountants advising the recipient on these
matters. Any wider dissemination of these documents or this information shall be
allowed only if required by law or authorized by the party providing the
documents or information.
16. DISPUTE RESOLUTION.
(a) If a dispute, controversy or claim ("Dispute") arises between the
parties relating to the interpretation or performance of this Agreement, or the
grounds for the termination hereof, appropriate senior executives (e.g. director
or V.P. level) of each party who shall have the authority to resolve the matter
shall meet to attempt in good faith to negotiate a resolution of the Dispute
prior to pursuing other available remedies. The initial meeting between the
appropriate senior executives shall be referred to herein as the "Dispute
Resolution Commencement Date." Discussions and correspondence relating to trying
to resolve such Dispute shall be treated as confidential information developed
for the purpose of settlement and shall be exempt from discovery or production
and shall not be admissible. If the senior executives are unable to resolve the
Dispute within thirty (30) days from the Dispute Resolution Commencement Date,
and either party wishes to pursue its rights relating to such Dispute, then the
Dispute will be mediated by a mutually acceptable mediator appointed pursuant to
the mediation rules of JAMS/Endispute within thirty (30) days after written
notice by one party to the other demanding non-binding mediation. Neither party
may unreasonably withhold consent to the selection of a mediator or the location
of the mediation. Both parties will share the costs of the mediation equally,
except that each party shall bear its own costs and expenses, including
attorney's fees, witness fees, travel expenses, and preparation costs. The
parties may also agree to replace mediation with some other form of non-binding
or binding ADR.
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(b) Any Dispute which the parties cannot resolve through mediation
within ninety (90) days of the Dispute Resolution Commencement Date, unless
otherwise mutually agreed, shall be submitted to final and binding arbitration
under the then current Commercial Arbitration Rules of the American Arbitration
Association ("AAA"), by three (3) arbitrators in Los Angeles County, California.
Such arbitrators shall be selected by the mutual agreement of the parties or,
failing such agreement, shall be selected according to the aforesaid AAA rules.
The arbitrators will be instructed to prepare and deliver a written, reasoned
opinion stating their decision within thirty (30) days of the completion of the
arbitration. The prevailing party in such arbitration shall be entitled to
expenses, including costs and attorneys' and other professional fees, incurred
in connection with the arbitration (but excluding any costs and fees associated
with prior negotiation or mediation). The decision of the arbitrator shall be
final and non-appealable and may be enforced in any court of competent
jurisdiction. The use of any ADR procedures will not be construed under the
doctrine of laches, waiver or estoppel to adversely affect the rights of either
party.
(c) Any Dispute regarding the following is not required to be
negotiated, mediated or arbitrated prior to seeking relief from a court of
competent jurisdiction: breach of any obligation of confidentiality; any claim
where interim relief from the court is sought to prevent serious and irreparable
injury to one of the parties or to others.
(d) Unless otherwise agreed in writing, the parties will continue to
honor all commitments under this Agreement during the course of dispute
resolution pursuant to the provisions of this Section 16 with respect to all
matters not subject to such dispute, controversy, or claim.
17. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties with respect
to the subject matter hereof and shall supersede all prior written and oral and
all contemporaneous oral agreements and understandings with respect to the
subject matter hereof.
18. GOVERNING LAW.
This Agreement shall be construed in accordance with and all Disputes hereunder
shall be governed by the laws of the State of California, excluding its conflict
of law rules and the United Nations Convention on Contracts for the
International Sales of Goods. The Superior Court of Los Angeles County and/or
the United States District Court for the Southern District of California shall
have jurisdiction and venue over all Disputes between the parties that are
permitted to be brought in a court of law pursuant to Section 16.
19. NOTICES.
Notices, Demands, offers, requests or other communications required or permitted
to be given by either party pursuant to the terms of this Agreement shall be
given in writing to the respective parties to the following addresses:
if to MRV:
MRV Communications, Inc.
00000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
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Attention: Xxxx Xxxxx, Chief Executive Officer
Fax: (000)-000-0000
if to Luminent:
Luminent, Inc.
00000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Chief Executive Officer
Fax: (000) 000-0000
Or to such other address as the party to whom notice is given may have
previously furnished to the other in writing as provided herein. Any notice
involving non-performance, termination, or renewal shall be sent by hand
delivery, recognized overnight courier or, within the United States, may also be
sent via certified mail, return receipt requested. All other notices may also be
sent by fax, confirmed by first class mail. All notices shall be deemed to have
been given and received on the earlier of actual delivery or three (3) days from
the date of postmark.
20. COUNTERPARTS.
This Agreement may be executed in counterparts, each of which shall be deemed to
be an original but all of which shall constitute one and the same agreement.
21. BINDING EFFECT; ASSIGNMENT.
This Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective legal representatives and successors, and nothing in
this Agreement, express or implied, is intended to confer upon any other Person
any rights or remedies of any nature whatsoever under or by reason of this
Agreement. This Agreement may be enforced separately by each member of the MRV
Group (defined, for this purpose, as provided in section 7.14 of the Master
Separation and Distribution Agreement) and each member of the Luminent Group.
Neither party may assign this Agreement or any rights or obligations hereunder,
without the prior written consent of the other party, and any such assignment
shall be void; provided, however, either party may assign this Agreement to a
successor entity in conjunction with such party's reincorporation.
22. SEVERABILITY.
If any term or any other provision of this Agreement is determined by a court,
administrative agency or arbitrator to be invalid, illegal or incapable of being
enforced by any rule of law or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to either party. Upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that transactions
contemplated hereby are fulfilled to the fullest extent possible.
23. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of any party hereto in the exercise of any right
hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any agreement herein, nor shall any single or
partial exercise of any such right preclude other or
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further exercise thereof or of any other right. All rights and remedies existing
under this Agreement are cumulative to, and not exclusive of, any rights or
remedies otherwise available.
24. AMENDMENT.
No change or amendment will be made to this Agreement except by an instrument in
writing signed on behalf of each of the parties to such agreement.
25. AUTHORITY.
Each of the parties hereto represents to the other that (a) it has the corporate
or other requisite power and authority to execute, deliver, and perform this
Agreement, (b) the execution, delivery and performance of this Agreement by it
have been duly authorized by all necessary corporate or other actions, (c) it
has duly and validly executed and delivered this Agreement, and (d) this
Agreement is a legal, valid and binding obligation, enforceable against it in
accordance with its terms subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and general equity principles.
26. INTERPRETATION.
The headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.
When a reference is made in this Agreement to a Section, such reference shall be
to a Section of this Agreement unless otherwise indicated.
[ Rest of Page Intentionally Left Blank ]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first set forth above.
MRV COMMUNICATIONS, INC.,
a Delaware corporation
By:
-------------------------------------
Xxxx Xxxxx, Chief Executive Officer
LUMINENT, INC.,
a Delaware corporation
By:
-------------------------------------
Xxxxxxx X. Xxxxxx, Chief Executive Officer
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