EXHIBIT 11
PURCHASE AND ASSIGNMENT AGREEMENT
June 7, 2000
Lance Weller
Margaret Weller
3400 River Green Ct.
Duluth, Georgia 30096
Dear Sirs:
RE: DIGITAL TRANSMISSION SYSTEMS, INC.
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This letter sets forth the agreement between Wi-LAN Inc. ("WI-LAN") and Lance
Weller and Margaret Weller (collectively, the "SELLERS") with respect to the
purchase by Wi-LAN from the Sellers of the right, title and interest of the
Sellers in and to the Remaining Merger Consideration (as herein defined) payable
to the Sellers pursuant to the agreement and plan of merger ("ORIGINAL MERGER
AGREEMENT") dated as of the 29th day of February, 2000 entered into by and among
Digital Transmission Systems, Inc. ("DTS"), ICT Acquisition Corp. ("ICT"),
Telcor Communications, Inc. ("TELCOR") and the Sellers, as amended by amendment
no. 1 ("AMENDMENT NO. 1") to the agreement and plan of merger, dated as of March
31, 2000 entered into by and among DTS, ICT, Telcor and the Sellers and
amendment no. 2 ("AMENDMENT No. 2") to the agreement and plan of merger dated as
of June 7, 2000 entered into by and among DTS, ICT, Telcor and the Sellers
(collectively, the "MERGER AGREEMENT") to the extent relating to the Remaining
Merger Consideration. For these purposes, "REMAINING MERGER CONSIDERATION" means
an undivided thirty and one-half percent (30.5%) of the Merger Consideration, as
defined in the Original Merger Agreement as amended by Amendment No. 1, which as
of June 2, 2000 remained unpaid to the Sellers, being an undivided thirty and
one-half percent (30.5%) of those amounts described in paragraph II of Schedule
3.2 and Schedule 3.4 of the Original Merger Agreement as amended by Amendment
No. 1. All capitalized words and expressions used in this letter agreement and
not defined herein have the meanings ascribed to them in the Merger Agreement.
1. Subject to the terms and conditions of this agreement, the Sellers
agree to sell to Wi-LAN and Wi-LAN agrees to purchase from the Sellers,
all of the Sellers' right, title and interest in and to the Remaining
Merger Consideration and all of the Sellers' right, title, interest,
benefit and advantage to be derived from and under the Merger Agreement
to the extent relating to the Remaining Merger Consideration including,
without limitation, the benefit of any and all powers, covenants,
terms, agreements and provisions of and contained in the Merger
Agreement relating to the Remaining Merger Consideration with full
power and authority of Wi-LAN to use, in its sole discretion, the names
of the Sellers, their successors and assigns, to enforce the
performance and observance of DTS under the Merger Agreement to the
extent relating to the Remaining Merger Consideration pursuant to the
terms thereof. For greater certainty, Wi-LAN shall share pro rata to
its interest in the Remaining Merger Consideration in any registration
rights of the Sellers pursuant to the first amended and restated
registration rights agreement (the "FIRST AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT") dated June 7, 2000 among DTS and the
Sellers, as such agreement is amended from time to time, with respect
to the DTS Shares under the Remaining Merger Consideration.
The aggregate consideration payable, on the Closing Date (as herein
defined), by Wi-LAN for the Remaining Merger Consideration is U.S.$6.1
million payable (i) as to U.S.$500,000 in cash, and (ii) as to U.S.$5.6
million by the issue of the right (the "JULY
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RIGHT"), attached as SCHEDULE "A" hereto, to acquire the warrant (the
"JULY WARRANT") attached as Exhibit I thereto, and the right (the
"AUGUST RIGHT"), attached as SCHEDULE "B" hereto, to acquire the option
(the "AUGUST OPTION"), attached as Exhibit I thereto, to acquire the
warrant (the "OCTOBER WARRANT") attached as Exhibit II thereto. The
July Right and the August Right are collectively referred to herein as
the "RIGHTS" and the July Warrant and the October Warrant are
collectively referred to herein as the "WARRANTS". The Rights,
Warrants, August Option and Wi-LAN common shares issuable upon exercise
of the Warrants are collectively referred to herein as the "WI-LAN
SECURITIES".
It is acknowledged and agreed that neither the execution nor the
enforcement of this agreement shall make Wi-LAN liable or responsible,
in any manner whatsoever, for the observance or performance of any of
the Sellers' covenants or other obligations under the Merger Agreement
or for the payment of any monies payable by the Sellers, or either of
them, thereunder or of releasing the Sellers, or either of them, from
their obligations thereunder.
Wi-LAN will use its reasonable best efforts to qualify the distribution
of the July Warrant upon exercise of the July Right pursuant to a
prospectus filed in the Province of Alberta and, if required in order
to make the Wi-LAN common shares (the "WI-LAN SHARES") issuable upon
exercise of the July Warrant freely tradable on The Toronto Stock
Exchange (the "TSE"), in the Province of Ontario, on or before the
thirtieth (30th) day (the "QUALIFICATION DATE") following the Closing
Date (as hereinafter defined). In the event that, despite the
reasonable best efforts of Wi-LAN, it is unable to so qualify the
distribution of the July Warrant issuable upon exercise of the July
Right on or before the Qualification Date, then, in such event, Wi-LAN
shall issue to the Seller's an aggregate number of Wi-LAN Shares equal
to 10% of the number of Wi-LAN Shares issuable upon exercise of the
July Warrant as at the Qualification Date. In the event that despite
the reasonable best efforts of Wi-LAN, it is unable to qualify the
distribution of the July Warrant on or before August 15, 2000, then, in
such event, Wi-LAN shall issue to the Seller's an aggregate number of
Wi-LAN Shares equal to 10% of the number of Wi-LAN Shares issuable upon
exercise of the July Warrant as at August 15, 2000. In the event that,
despite the reasonable best efforts of Wi-LAN, it is unable to qualify
the distribution of the July Warrant on or before September 15, 2000,
then, in such event, Wi-LAN shall issue to the Seller's an aggregate
number of Wi-LAN Shares equal to 5% of the number of Wi-LAN Shares
issuable upon exercise of the July Warrant as at September 15, 2000.
Wi-LAN will use its reasonable best efforts to qualify the distribution
of the August Option upon exercise of the August Right pursuant to a
prospectus filed in the Province of Alberta and, if required in order
to make the Wi-LAN Shares issuable upon exercise of the October Warrant
freely tradable on the TSE, in the Province of Ontario, on or before
October 30, 2000. To the extent that, despite the reasonable best
efforts of Wi-LAN, it is unable to qualify the distribution of the
August Option on or before the foregoing qualification date, then,
thereafter, Wi-LAN shall continue to use its reasonable best efforts to
so qualify the distribution.
The July Warrant and the October Warrant are redeemable, in whole or in
part, at the sole option of Wi-LAN at any time, and from time to time,
prior to the full exercise thereof for a price equal to the U.S. dollar
stated value of the respective warrant remaining outstanding.
2. The closing of the transactions contemplated hereby will be completed
at the offices of Wi-LAN's counsel, Burnet, Duckworth & Palmer, 1400,
350 - 7th Avenue S.W., Calgary, Alberta, T2P 3N9, at 2:00 p.m. (Calgary
time), or such other time as the parties may agree (the "CLOSING
TIME"), on June 16, 2000, or such other date as the parties may agree
(the "CLOSING DATE").
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3. As an inducement to Wi-LAN to enter into this agreement and consummate
the transactions contemplated hereby, each of the Sellers jointly and
severally represents and warrants to Wi-LAN, as of the date of
execution of this agreement and again as of the Closing Time, as
follows:
a. Each of the Sellers has the power and authority to enter into this
agreement and the other agreements or documents contemplated hereby to
be executed and delivered in connection with the transactions
contemplated by this agreement at or before the Closing Time
(collectively, the "OTHER AGREEMENTS") to which he or she is to become
a party pursuant hereto and perform his or her obligations hereunder
and thereunder.
b. This agreement has been duly executed and delivered by and constitutes
the legal, valid and binding obligation of each of the Sellers,
enforceable against him or her in accordance with its terms. Each Other
Agreement to which any Seller is to become a party pursuant to the
provisions hereof, when executed and delivered by such Seller, will
constitute the legal, valid and binding obligation of the Seller,
enforceable against him or her in accordance with the terms of such
Other Agreement. All actions contemplated by this section and this
agreement have been duly and validly authorized by all necessary
proceedings by each of the Sellers.
c. Neither the execution and delivery of this agreement or any Other
Agreement to which any Seller is or is to become a party, the
consummation of the transactions contemplated hereby or thereby nor the
compliance with or fulfillment of the terms, conditions or provisions
hereof or thereof by the Sellers, or either of them, will: (i) conflict
with, result in a breach of, constitute a default or an event of
default (or an event that might, with the passage of time or the giving
of notice or both, constitute a default or event of default) under any
of the terms of, result in the termination of, result in the loss of
any right under, or give to any other person the right to cause such
termination of or loss under the Merger Agreement or the Remaining
Merger Consideration including, without limitation, any contract,
agreement or instrument to which any Seller is a party or by which any
of its assets may be bound or affected; (ii) violate any applicable
laws or violate any judgment or order of any governmental authority to
which either of the Sellers is subject or by which the Remaining Merger
Consideration or the Merger Agreement may be bound or affected; or
(iii) result in the creation or imposition of any liability, debt,
mortgage, deed of trust, pledge, security interest, encumbrance,
option, right of first refusal, agreement of sale, adverse claim,
easement, lien, assessment, restrictive covenant, encroachment, burden
or charge of any kind or nature whatsoever or any items similar or
related to the foregoing (collectively, "ENCUMBRANCE") upon the
Remaining Merger Consideration or the Merger Agreement or give to any
other person any interest or right therein.
d. Except for the Consent, Acknowledgment and Novation Agreement to be
executed by DTS, ICT, Telcor and the Sellers, no consent, approval, or
authorization of, or registration or filing with, any natural person,
corporation, association, partnership, limited liability company,
trust, joint venture, unincorporated organization, business, any other
legal entity or a Governmental Body (as herein defined) (collectively,
"PERSON") is required in connection with the execution or delivery by
the Sellers or either of them, of this agreement or any of the Other
Agreements to which either of them is or is to become a party pursuant
to the provisions hereof or in connection with the consummation by
Sellers, or, either of them, of the transactions contemplated hereby or
thereby.
e. Except for the threatened claim of David Straden against the Sellers
and Telcor to which the Sellers owe indemnification pursuant to Section
9.2(c) of the Merger Agreement, no action, suit, investigation, claim
or proceeding of any nature or kind whatsoever whether civil, criminal
or administrative, by or before any court, government (federal, state,
provincial, local or foreign), department, commission, board, bureau,
agency, official or other regulatory, administrative or governmental
authority or instrumentality
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("GOVERNMENTAL BODY") or arbitrator is pending or, to the knowledge of
the Sellers, threatened against or affecting the Sellers in connection
with the Remaining Merger Consideration or the Merger Agreement or any
of the transactions contemplated by this agreement and to the knowledge
of the Sellers, there is no basis for any such litigation. There is
presently no outstanding judgment, decree or order of any Governmental
Body against or affecting the Sellers in connection with the Remaining
Merger Consideration or the Merger Agreement or any other transactions
contemplated by this agreement or any Other Agreement.
f. Neither of the Sellers has employed any broker or finder or incurred
any liability for any brokerage fee, commission or finder's fee in
connection with any of the transactions contemplated hereby or by any
Other Agreement for which Wi-LAN or DTS may have any responsibility or
liability.
g. The Merger Agreement was duly executed and delivered by the Sellers,
and the Original Merger Agreement, Amendment No. 1 and Amendment No. 2
were duly executed and delivered by Telcor and constitutes their
respective legal, valid and binding obligations, enforceable in
accordance with its terms; and all material conditions precedent to the
consummation of the transactions contemplated by the Merger Agreement
have been satisfied or waived by that party for whom the conditions
existed and the transaction of merger contemplated thereby has been
completed subject only to the payment of the Merger Consideration, as
defined in the Merger Agreement, which as of the date hereof remains
unpaid to the Sellers, being those amounts described in paragraph II of
Schedule 3.2 and Schedule 3.4 of the Merger Agreement.
h. A true and correct copy of the Merger Agreement is attached as SCHEDULE
"C" hereto.
i. The Merger Agreement is in full force and effect and except for
Amendment No. 1 and Amendment No. 2 included in Schedule "C", the
Merger Agreement has in no way been modified, amended or altered.
j. The First Amended and Restated Registration Rights Agreement is in full
force and effect and has in no way been modified, amended or altered.
k. The Sellers are the absolute legal and beneficial owners of the
Remaining Merger Consideration and the Merger Agreement free and clear
of all Encumbrances and have good and sufficient power, authority and
right to transfer the legal and beneficial title to the Remaining
Merger Consideration and the Merger Agreement (to the extent provided
for herein) to Wi-LAN free and clear of all Encumbrances.
l. The obligations of DTS in respect of the Remaining Merger Consideration
have not been extinguished, compromised or settled in whole or in part
and the entire Remaining Merger Consideration remains outstanding and
is payable to the Sellers in accordance with the terms of the Merger
Agreement.
m. Neither the Remaining Merger Consideration nor the Merger Agreement or
any of the Sellers' rights or interests therein (except for certain DTS
shares, representing Merger Consideration issued pursuant to Paragraph
I of the Merger Agreement, which were pledged by the Sellers to PNC
Bank) have been previously assigned or transferred to any other Person
and no Person has any agreement, option, right or privilege (including,
without limitation, whether by law, pre-emptive right, contract or
otherwise) to acquire any rights or interests therein nor any
agreement, option, right or privilege capable of becoming any such
agreement, option, right or privilege.
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n. The Sellers will not resell the Wi-LAN Securities received hereunder
except in accordance with the provisions of applicable securities
legislation and the rules of the TSE.
o. The Sellers have executed this agreement in the United States, and have
concurrently executed and delivered the representation letter attached
as SCHEDULE "D" to this agreement.
p. If required by applicable securities legislation, policy or order or by
any securities commission, stock exchange or other regulatory
authority, the Sellers, at the sole cost and expense of Wi-LAN
(including the payment of reasonable attorney's fees of counsel for the
Sellers), will execute, deliver, file and otherwise assist Wi-LAN in
filing, such reports, undertakings and other documents with respect to
the issue of the Wi-LAN Securities to the Sellers.
q. The obligation of DTS to pay the Remaining Merger Consideration is not
subject to any defense, counterclaim or set-off, whether at law or in
equity.
4. As an inducement to the Sellers to enter into this agreement and
consummate the transactions contemplated hereby, Wi-LAN represents and
warrants to the Sellers, as of the date of execution of this agreement
and again as of the Closing Time, as follows:
a. Wi-LAN has the power and authority to enter into this agreement and the
Other Agreements to which it is to become a party pursuant hereto and
perform its obligations hereunder and thereunder.
b. This agreement has been duly executed and delivered by and constitutes
the legal, valid and binding obligation of Wi-LAN, enforceable against
it in accordance with its terms. Each Other Agreement to which Wi-LAN
is to become a party pursuant to the provisions hereof, when executed
and delivered by Wi-LAN, will constitute the legal, valid and binding
obligation of Wi-LAN, enforceable against it in accordance with the
terms of such Other Agreement. All actions contemplated by this section
and this agreement have been duly and validly authorized by all
necessary proceedings by Wi-LAN.
c. Neither the execution and delivery of this agreement or any Other
Agreement to which Wi-LAN is or is to become a party, the consummation
of the transactions contemplated hereby or thereby nor the compliance
with or fulfillment of the terms, conditions or provisions hereof or
thereof by Wi-LAN, will: (i) conflict with, result in a breach of,
constitute a default or an event of default (or an event that might,
with the passage of time or the giving of notice or both, constitute a
default or event of default) under any of the terms of, result in the
termination of, result in the loss of any right under, or give to any
other person the right to cause such termination of or loss under any
contract, agreement or instrument to which Wi-LAN is a party or by
which any of its assets may be bound or affected; (ii) violate any
applicable laws or violate any judgment or order of any governmental
authority to which Wi-LAN is subject or by which the Wi-LAN Securities
may be bound or affected; (iii) result in the creation or imposition of
any Encumbrance upon the Wi-LAN Securities or give to any other person
any interest or right therein.
d. Except for the TSE and filings under applicable securities laws, no
consent, approval, or authorization of, or registration or filing with,
any person is required in connection with the execution or delivery by
Wi-LAN of this agreement or any of the Other Agreements to which it is
or is to become a party pursuant to the provisions hereof or in
connection with the consummation by Wi-LAN of the transactions
contemplated hereby or thereby.
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e. Wi-LAN has not employed any broker or finder or incurred any liability
for any brokerage fee, commission or finder's fee in connection with
any of the transactions contemplated hereby or by any Other Agreement
for which the Sellers may have any responsibility or liability.
f. The information and statements set forth in the documents and
information filed by Wi-LAN with the securities commissions or similar
regulatory authorities in Canada (the "PUBLIC RECORD"), as it relates
to Wi-LAN, were true, correct and complete in all material respects and
did not contain any material misrepresentation, as of the respective
dates of such information or statements and no material change has
occurred in relation to Wi-LAN which is not disclosed in the Public
Record.
g. The Wi-LAN Shares issuable upon exercise of the Warrants which in turn
are issuable upon exercise of the Rights issuable pursuant hereto, when
issued, will be issued as fully paid and non-assessable common shares
in the capital of Wi-LAN.
h. Wi-LAN is a reporting issuer in good standing in the provinces of
Alberta and Ontario and is a "qualifying issuer" within the meaning of
that term under the AIberta Securities Commission Rule 45-501. Wi-LAN
covenants unto the Sellers that it will remain a reporting issuer in
said provinces and in good standing so long as the Warrants are
outstanding.
i. Wi-LAN is an "accredited investor" within the meaning of Rule 501 of
Regulation D under the Securities Act of 1933, as amended.
5. The obligation of the Sellers to complete the transactions contemplated
hereby shall be subject to:
a. All representations and warranties of Wi-LAN made in this agreement
being true and correct in all material respects at the Closing Time and
with the same effect as if made at and as of the Closing Time, and
Wi-LAN having performed or complied with, in all material respects, all
of its obligations, covenants and agreements hereunder.
b. Receipt of all requisite regulatory approvals and third party consents
and DTS board of directors' approval.
c. The Sellers shall have received the opinion of Burnet, Duckworth &
Palmer, counsel for Wi-LAN, dated the Closing Date, addressed to the
Sellers, in form and substance satisfactory to the Sellers' counsel,
acting reasonably, but including, without limitation, an opinion on the
applicable holding period on the Wi-LAN Securities.
d. The Wi-LAN Shares issuable to the Sellers upon exercise of the Warrants
shall have been conditionally approved for listing on the TSE, subject
only to the filing of customary documents with the TSE.
e. The Sellers shall have received a Consent, Acknowledgment and Novation
Agreement executed by DTS, ICT, Telcor and the Sellers, in form and
substance reasonably satisfactory to the Sellers' counsel.
f. Amendment No. 2 shall be executed and delivered by DTS, ICT and Telcor.
g. Such conditions are for the sole benefit of the Sellers and may be
waived by the Sellers in whole or in part.
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6. The obligation of Wi-LAN to complete the purchase of the Remaining
Merger Consideration hereunder shall be subject to:
a. All representations and warranties of the Sellers made in this
agreement being true and correct in all material respects at the
Closing Time and with the same effect as if made at and as of the
Closing Time, and the Sellers having performed or complied with, in all
material respects, all of their obligations, covenants and agreements
hereunder.
b. Receipt of all requisite regulatory approvals and third party consents
(including, without limitation, the TSE) and DTS board of directors'
approval.
c. Wi-LAN shall have received the opinion of Schweber, Izenson & Anderson,
LLP, counsel for the Sellers dated the Closing Date, addressed to
Wi-LAN, in form and substance satisfactory to Wi-LAN's counsel, acting
reasonably.
d. Wi-LAN shall have received a Consent, Acknowledgment and Novation
Agreement executed by DTS, ICT, Telcor and the Sellers, in form and
substance reasonably satisfactory to Wi-LAN's counsel.
e. Wi-LAN shall have received Amendment No. 2 executed by DTS, ICT, Telcor
and the Sellers, in form and substance reasonably satisfactory to
Wi-LAN's counsel.
f. Wi-LAN shall have received the First Amended and Restated Registration
Rights Agreement executed by DTS and the Sellers, in form and substance
reasonably Satisfactory to Wi-LAN's counsel.
g. All reasonably necessary steps and proceedings shall have been taken to
allow the Remaining Merger Consideration to be duly transferred from
the Sellers to Wi-LAN, subject to applicable securities laws, and to
vest in Wi-LAN good and marketable title to the Remaining Merger
Consideration free and clear of any Encumbrances, voting trusts,
unanimous or other shareholder agreements, proxies and other interests,
claims or demands of every kind or nature whatsoever other than the
First Amended and Restated Registration Rights Agreement referenced in
subparagraph 3(j) above.
Such conditions are for the sole benefit of Wi-LAN and may be waived by
Wi-LAN in whole or in part.
7. SELLERS' INDEMNITY
a. The Sellers' shall jointly and severally covenant and agree to
indemnify and save Wi-LAN harmless against and from all liabilities,
claims, demands, losses, costs (including, without limitation, legal
fees and disbursements on a full indemnity basis), damages and expenses
to which Wi-LAN may be subject or which Wi-LAN may suffer or incur,
whether under the provisions of any Statute or otherwise, in any way
caused by, or arising directly or indirectly from or in consequence of
any breach of, default under or non-compliance by the Sellers with any
representation, warranty, term, covenant or condition of this agreement
or in any certificate or other document delivered by or on behalf of
the Sellers hereunder or pursuant hereto.
b. The rights and remedies of Wi-LAN set forth in subparagraph 7(a) are to
the fullest extent possible in law cumulative and not alternative and
the election by Wi-LAN to exercise any such right or remedy shall not
be, and shall not be deemed to be, a waiver of any other rights and
remedies. Wi-LAN shall not be obligated to pursue any claim or remedy
against any third party including, without limitation, DTS, ICT or
Telcor before being entitled to obtain full indemnification from the
Sellers pursuant to subparagraph 7(a).
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Provided, however, that the indemnification given hereunder shall be
limited to no more than the consideration actually received by the
Sellers from Wi-LAN.
8. WI-LAN INDEMNITY
a. Wi-LAN shall indemnify and save the Sellers harmless against and from
all liabilities, claims, demands, losses, costs (including, without
limitation, legal fees and disbursements on a full indemnity basis),
damages and expenses to which the Sellers may be subject or which the
Sellers may suffer or incur, whether under the provisions of any
statute or otherwise, in any way caused by, or arising directly or
indirectly from or in consequence of any breach of, default under or
non-compliance by Wi-LAN with any representation, warranty, term,
covenant or condition of this agreement or in any certificate or other
document delivered by or on behalf of Wi-LAN hereunder or pursuant
hereto.
b. The rights and remedies of the Sellers set forth in subparagraph 8(a)
are to the fullest extent possible in law cumulative and not
alternative and the election by the Sellers to exercise any such right
or remedy shall not be, and shall not be deemed to be, a waiver of any
other rights and remedies. The Sellers shall not be obligated to pursue
any claim or remedy against any third party before being entitled to
obtain full indemnification from Wi-LAN pursuant to subparagraph 8(a).
Provided, however, that the indemnification given hereunder shall be
limited to no more than the consideration actually received by Wi-LAN
from the Sellers.
9. The parties will advise each other and obtain the other party's
approval in advance of any public statements which they propose to make
in respect of the transaction contemplated hereby, provided that no
party shall be prevented from making any disclosure or statement which
it is required to make by law or regulation or any rule of any stock
exchange or similar organization by which it is bound.
10. Whether or not the transactions contemplated hereby are consummated,
each of the parties will pay its own costs and expenses incurred in
connection with the preparation and negotiation of this definitive
agreement and any due diligence investigation.
11. Time shall be of the essence of this agreement.
12. Any notice or other communication to be given in connection with this
agreement shall be given in writing and shall be given by personal
delivery or sent by facsimile transmission or other means of electronic
communication that produces a written record and confirms receipt
("electronic transmission") addressed to the recipient as follows:
a. to Wi-LAN:
300, 801 Manning Road S.E.
Calgary, Alberta T2E 8J5
Attention: Dr. Hatim Zaghloul (Strictly Confidential)
Fax: (403) 273-5100
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with a copy to:
Burnet, Duckworth & Palmer
1400, 350 - 7th Avenue S.W.
Calgary, Alberta T2P 3N9
Attention: Bill Maslechko (Strictly Confidential)
Fax: (403) 260-0337
b. to the Sellers:
3400 River Green Ct.
Duluth, Georgia 30096
Attention: Lance Weller and Margaret Weller (Strictly Confidential)
Fax: (770) 622-1223
with a copy to:
Schweber, Izenson, Anderson, LLP
Suite 275, Lenox Plaza
3384 Peachtree Rd. N.E.
Atlanta, Georgia 30326
Attention: Mark Izenson (Strictly Confidential)
Fax: (404) 812-5801
or to such other address as may be designated by notice given by either
party to the other. Any notice or other communication given by personal
delivery shall be conclusively deemed to have been given the day of
actual delivery and if given by electronic transmission on the day of
sending if sent during normal business hours of the addressee on a
business day and, If not, on the first business day thereafter.
13. Each of the Sellers and Wi-LAN shall from time to time and at all times
hereafter at the request of the other but without further
consideration, do and perform all such further acts, matters and things
and execute and deliver all such further documents, deeds, assignments,
agreements, notices and writings and give such further assurances as
shall be reasonably required for the purpose of vesting in Wi-LAN the
Remaining Merger Consideration. Without limitation of the foregoing, if
all or any part of the Remaining Merger Consideration shall not be
assignable, or shall only be assignable with the consent or approval of
any third party, the Sellers shall use their reasonable efforts to
obtain such consent or approval and pending receipt thereof shall hold
all rights or entitlements that the Sellers have thereto in trust for
the exclusive benefit of Wi-LAN
14. This agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, administrators,
successors and assigns.
15. This agreement may be executed in as many counterparts as are necessary
and, when a counterpart has been executed by each party, all
counterparts together shall constitute one agreement. Delivery of
counterparts may be effected by facsimile transmission.
16. Each of the Sellers covenants and agrees with Wi-LAN that:
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a. The Sellers shall promptly and expeditiously deliver to Wi-LAN true
copies of any and all notices, statements and other writings forwarded
to the Sellers pertaining to the Remaining Merger Consideration.
b. Neither of the Sellers shall in any manner whatsoever modify, after or
amend the Merger Agreement in any manner which adversely affects
Wi-LAN's receipt or enforcement of the Remaining Merger Consideration
without first obtaining the prior written approval of Wi-LAN. The
Sellers shall promptly inform Wi-LAN of any other proposed
modifications, alterations or amendments to the Merger Agreement.
17. This agreement and the obligations of the parties hereunder shall be
interpreted in accordance with the laws of the Province of Alberta and
the federal laws of Canada applicable therein.
18. This agreement, together with the Other Documents, constitutes the
entire agreement between the parties hereto, and cancels and supersedes
all prior agreements and understandings between the parties hereto,
with respect to the subject matter hereof, including, without
limitation, the letter agreement among Wi-LAN and the Sellers dated
June 2, 2000.
19. The representations, warranties, covenants and agreements herein and in
any Other Document delivered pursuant hereto shall survive the closing
and remain in full force and effect provided that no party hereto shall
be liable in respect of any representation or warranty unless the party
seeking to rely upon such representation or warranty shall have given
notice to the party who made such representation or warranty of its
intention to make such claim on or before the date 24 months following
the Closing Date.
20. This agreement may only be amended by a written instrument signed by
the parties hereto.
21. No waiver by any party hereto shall be effective unless in writing and
any waiver shall affect only the matter, and the occurrence thereof,
specifically identified and shall not extend to any other matter or
occurrence.
22. If any one or more of the provisions or parts thereof contained in this
agreement become invalid, illegal or unenforceable, in any respect in
any jurisdiction, the remaining provisions or parts thereof contained
herein shall be and shall be conclusively deemed to be, as to such
jurisdiction, severable therefrom and:
a. the validity, legality or enforceability of such remaining provisions
or parts thereof shall not in any way be affected or impaired by the
severance of the provisions or parts thereof severed; and
b. the invalidity, illegality or unenforceability of any provision or part
thereof contained in this agreement in any jurisdiction shall not
affect or impair such provision or part thereof or any other provision
of this agreement in any other jurisdiction.
23. Provided that the Sellers are not in default under this agreement which
adversely affects Wi-LAN's receipt or enforcement of the Remaining
Merger Consideration, Wi-LAN shall issue the consideration payable to
the Sellers pursuant to this agreement even if DTS defaults in its
payment of the Remaining Merger Consideration to Wi-LAN, provided that
the DTS default is not due to the Sellers default under or breach of
the Merger Agreement or other action on the part of the Sellers or any
one of them.
<PAGE>
11
If the foregoing offer is acceptable to you, please indicate your acceptance in
the space provided below, whereupon this letter and your acceptance will
constitute a binding agreement between Wi-LAN and the Sellers.
Yours truly,
Wi-LAN INC.
/s/ Hatim Zaghloul
------------------------------------
Hatim Zaghloul
Chairman and Chief Executive Officer
AGREED AND ACCEPTED THIS 7TH DAY OF JUNE, 2000
/s/ Lance Weller
--------------------------------- ----------------------------------
Lance Weller WITNESS as to the signature of
Lance Weller
AGREED AND ACCEPTED THIS 7TH DAY OF JUNE, 2000
/s/ Margaret Weller
--------------------------------- ----------------------------------
Margaret Weller WITNESS as to the signature of
Margaret Weller
