<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 10, 1997
OSICOM TECHNOLOGIES, INC.
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(Exact name of Registrant as specified in charter)
New Jersey 0-15810 22-2367234
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State or other juris- (Commission (IRS Employer
diction of incorporation File Number) Identification No.)
2800 28th Street, Suite 100, Santa Monica, CA 90405
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (310) 581-4030
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Item 5. Other events
Effective March 20, 1997, Osicom Technologies, Inc. ("Osicom") and
Asia Broadcasting Communications Network, Ltd. ("ABCN"), established a
strategic alliance. ABCN, a privately-held media and communications company
based in Bangkok, Thailand, is constructing a satellite communications system
for the purpose of providing Direct-to-Home television and high-speed Internet
access satellite services to Asia. Osicom develops and manufactures devices
and associated software that would assist ABCN to provide high-speed Internet
access satellite services.
ABCN was established to create the first Asia-wide broadband
distribution platform for Direct Broadcasting Services, multi-media and
high-speed Internet access and online services. Initial plans call for two
high-powered, geosyncronys satellites currently being constructed, with the
first scheduled for launch during the fourth quarter of 1997 and the second
during the third quarter of 1998. Each satellite will provide 400 to 450
channels of digital DBS television, plus 45 megabits per second of data
transmission rates for high-speed access. The satellites are being constructed
by Space Systems/Loral. ABCN's system will be the first of its kind in Asia.
The satellite footprint will cover three billion people, including 280 million
television households and 30 million personal computer users.
Under the terms of the alliance, ABCN agrees that Osicom shall be the
designated supplier of ABCN's network equipment and technology and of its
customers' terminal devices subject to the satisfaction of certain conditions.
As part of the strategic alliance, pursuant to the terms of a share purchase
agreement dated march 20, 1997, Osicom acquired 5,000,000 common shares of
ABCN, par value U.S. $0.35, at a purchase price of U.S. $1.45, in exchange for
674,419 shares of Osicom Common Stock. Upon issuance of such shares, ABCN
became the beneficial owner of 674,419 shares of Osicom Common Stock.
Item 7. Exhibits
99.1 Share Purchase Agreement, dated March 20, 1997 by and
among Asia Broadcasting and Communications Network,
Ltd. and Osicom Technologies, Inc.
99.2 Cooperation and Supply Agreement, dated as of March
21, 1997, by and among Osicom Technologies, Inc. and
Asia Broadcasting and Communications Network, Ltd.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Osicom Technologies, Inc.
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(Registrant)
Dated: April 10, 1997 By: /s/Christopher E. Sue
------------------------
Christopher E. Sue,
Chief Financial Officer
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EXHIBIT 99.1
SHARE PURCHASE AGREEMENT
DATED AS OF MARCH 20, 1996
BY AND AMONG
ASIA BROADCASTING AND COMMUNICATIONS NETWORK, LTD.
AND
OSICOM TECHNOLOGIES, INC.
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SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (the "Agreement") is entered into as of,
March 20, 1997 (the "Closing Date"), by and between Asia Broadcasting and
Communications Network Ltd., a Bermuda corporation ("ABCN"), and Osicom
Technologies, Inc., a New Jersey corporation ("Osicom").
WHEREAS, ABCN is constructing a satellite communications system for the purpose
of providing Direct-to-Home television and high-speed Internet access
satellite services to Asia and seeks strategic partners with access to
technologies and manufacturing capabilities that can assist ABCN to
provide these services in a competitive and cost effective manner; and
WHEREAS, Osicom has demonstrated the capability to develop and manufacture
devices and associated software that would assist ABCN to provide
high-speed Internet access satellite services and desires to become a
strategic partner of ABCN;
WHEREAS, ABCN desires to issue, and OSICOM desires to purchase, 5,000,000
shares par value $0.35 per share, of ABCN for the consideration and
upon the terms and conditions hereinafter set forth; and
WHEREAS, ABCN and Osicom entered in to a Memorandum of Agreement dated March 7,
1997, pursuant to which they agreed to enter into this Agreement, and
pursuant to which Osicom further agreed to advance to ABCN the sum of
$2,000,000 in contemplation of the execution of this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and the mutual
covenants and agreements hereinafter set forth, the parties hereby agree as
follows:
1. Sale and Purchase of Shares.
1.1 Purchase of ABCN Shares. Subject to the terms and conditions
hereof, ABCN hereby agrees to issue, and OSICOM hereby agrees to
purchase, on the Closing Date 5 million common shares of ABCN of U.S.
$0.35 par value ("ABCN Shares") at a purchase price of $1.45 per share
for an aggregate purchase price of $7,250,000 U.S.Dollars (Seven
Million Two Hundred Fifty Thousand U.S. Dollars) (the "Purchase
Price"). On the Closing Date, OSICOM will deliver to ABCN the Purchase
Price in the form of that number of shares of Osicom's common stock
(the "Osicom Shares"), as adjusted pursuant to Section 1.4 of this
Agreement, whose aggregate value, as of the Closing Date, equals
$7,250,000 and ABCN will issue and deliver to OSICOM a certificate
representing such number of ABCN Shares, as adjusted pursuant to this
Agreement, registered in the name of OSICOM.
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1.2 Option to Purchase Shares. Subject to the terms and conditions
hereof, ABCN grants to OSICOM an option (the "Option") to purchase
5,000,000 common shares of ABCN of U.S. $0.35 par value. The exercise
price of the Option shall be $1.45 per share, for an aggregate purchase
price of $7,250,000 U.S.Dollars (Seven Million Two Hundred Fifty
Thousand U.S. Dollars) (the "Option Purchase Price"), which shall be
payable in U.S. Dollars. The Option shall be exercisable from and
after completion of the First Phase of the Asia Access network (as
defined in the Cooperation and License Agreement, dated as of this
date, between ABCN and Osicom), and until the ABCN Shares are publicly
traded shall be exercisable by OSICOM, to the extent not exercised, in
whole or in part with respect to not less than 20% of the Shares
subject thereto (or such lesser amount as is equal to the remaining
number of Shares subject to the Option), at any time and from time to
time, after becoming exercisable and prior to the termination of the
Option. After the ABCN Shares become publicly traded, the Option shall
be exercisable by OSICOM, to the extent not exercised, in whole or in
part with respect to any number of Shares subject thereto at any time
and from time to time prior to the termination of the Option. The
Option shall terminate twelve (12) months after the date on which
ABCN's shares initially become publicly traded.
1.3 Adjustment in Number of ABCN Shares. For the benefit of OSICOM,
the number of ABCN Shares to be issued to OSICOM shall be equitably
adjusted from time to time after the date hereof to take account of any
of the following events: (i) if ABCN shall pay a dividend or make any
other distribution with respect to any Shares of ABCN which is payable
in the form of Shares of ABCN, (ii) if ABCN shall subdivide its
outstanding shares, (iii) if ABCN shall combine its outstanding shares
into any shares of its capital stock in a reclassification of the
shares (including any such reclassification in connection with a
merger, consolidation or other business combination involving ABCN), or
(iv) if ABCN shall engage in any other similar transaction affecting
Shares of ABCN.
1.4 Adjustment in the Number of OSICOM Shares. For the benefit of
ABCN, the number of OSICOM Shares issued to ABCN shall be equitably
adjusted as of the date such OSICOM Shares become freely tradable, such
that the aggregate value of such OSICOM Shares as of such date shall
not be less than $5,000,000.
2. Further Agreements.
2.1 Right to Receive Additional Shares. If, after OSICOM has
purchased the ABCN Shares but prior to April 15, 1998, (the "Adjustment
Period"), ABCN issues or ABCN sells common stock or any security
convertible into or exchangeable for common stock of ABCN (a "ABCN
Share Offering or
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Sale") for a price (the "Lower Offering Price") less than the purchase
price per share for the ABCN Shares purchased by OSICOM under Sections
1.1, 1.2, or 1.3 of this Agreement, such purchase price under Sections
1.1, 1.2, or 1.3 of this Agreement will be reduced retroactively to the
Lower Offering Price and ABCN will issue to OSICOM (an "Adjustment")
the number of additional shares of common stock that OSICOM would have
received if its investment had been at a per share purchase price equal
to the Lower Offering Price. If, subsequent to an Adjustment, one or
more ABCN Share Offerings or Sales occur during the Adjustment Period,
for a price less than the Lower Offering Price (or such lower purchase
price to which OSICOM's purchase price for the OSICOM Shares has been
adjusted), a further Adjustment to the purchase price of such ABCN
Shares will be made in the same manner as the initial Adjustment and
ABCN will issue to OSICOM the appropriate number of additional common
shares.
2.2 Registration Rights. If at any time or times ABCN proposes to
make a registered public offering of any of its securities, whether to
be sold by it or by one or more third parties, ABCN shall have given
written notice to OSICOM of the proposed registered public offering not
less than 30 days prior to the proposed filing date of the registration
form. With respect to any such registration, ABCN will provide OSICOM
with registration rights including, but not limited to, "piggyback"
registration rights no less favorable than those granted, if any, to
any other shareholder of ABCN. If the "piggyback registration" is an
underwritten primary registration on behalf of ABCN or an underwritten
secondary offering on behalf of selling shareholders, the right to
include shares in a registration is subject to the managing
underwriters advising ABCN that such Shares can be included in such
registration without adversely affecting the marketability of the
offering after taking into account other Shares to be included in such
registration and the priority rights of the shareholders requesting
inclusion. In addition, ABCN hereby agrees that if at any time or times
it grants registration rights, including, but not limited to, "demand"
and/or "piggyback" registration rights, with respect to Shares of ABCN
to any party it will grant OSICOM registration rights no less favorable
than those granted to such other party.
2.3 Registration and Disposition of OSICOM Shares. Upon demand by
ABCN at any time after the Closing Date, Osicom shall file a Form S-3
registration to register the Osicom Shares with the Securities and
Exchange Commission. ABCN shall have the right to sell or otherwise
dispose of the OSICOM Shares, in its sole discretion, at any time after
such registration becomes effective.
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2.4 Indemnification.
2.4.1 Indemnification of OSICOM. ABCN agrees to indemnify and
hold harmless OSICOM and its affiliates, directors,
officers and duly authorized agents against any loss,
claim, liability, cost, expense or damage (including,
without limitation, reasonable legal fees and disbursements
and court or arbitration fees and costs including the fees,
disbursements and costs arising from any action for
indemnification pursuant to this Section 2.4.1 if the
indemnified party prevails) accruing from or resulting by
reason of the breach or incorrectness of any of the
representations or warranties made by ABCN in this
Agreement or by reason of the breach by ABCN of any of its
agreements or covenants hereunder.
2.4.2 Indemnification of ABCN. OSICOM agrees to indemnify and
hold harmless ABCN and its affiliates, directors, officers
and duly authorized agents against any loss, claim,
liability, cost, expense or damage (including, without
limitation, reasonable legal fees and disbursements and
court or arbitration fees and costs including the fees,
disbursements and costs arising from any action for
indemnification pursuant to this Section 2.4.2 if the
indemnified party prevails) accruing from or resulting by
reason of the breach or incorrectness of any of the
representations or warranties made by OSICOM in this
Agreement or by reason of the breach by OSICOM any of its
agreements or covenants hereunder.
2.5 Preemptive Rights. Prior to the initial public offering by
ABCN, ABCN shall not issue any additional common shares to two or more
of the existing shareholders (as listed on Schedule A) without also
offering to Osicom the right to purchase, at a price equal to the price
that would be paid by such existing shareholders, that number of common
shares needed to maintain Osicom's percentage ownership of ABCN Shares
at 1.8% as shown on Schedule A, provided that percentage ownership
shall be calculated without regard to any issues of common shares as to
which these preemptive rights do not apply. Notwithstanding the
foregoing, such preemptive right shall not apply in the event that ABCN
sells more than twenty-five percent (25%) of the fully-diluted equity
of the Company to any existing investor or group of existing investors
of ABCN and has received the approval of a majority of the
disinterested directors of ABCN for such sale provided, however, that
in any case in which (i) ABCN sells Shares for less than the purchase
price per share for the ABCN Shares purchased by OSICOM under Sections
1.1, 1.2, or 1.3 of this Agreement (the "Lower Offering Price" as
defined in Section 2.1), and (ii) after giving effect to any Adjustment
pursuant to Section 2.1 of this Agreement OSICOM's percentage ownership
of ABCN Shares is less than 1.8%, OSICOM shall have the right to
purchase at the Lower Offering Price that
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number of additional shares required to maintain its ownership of ABCN
shares at 1.8%.
3. Representations and Warranties of ABCN. ABCN hereby represents, warrants
and agrees, as of the date hereof, as follows:
3.1 Organization and Standing. ABCN is a corporation duly
organized, validly existing and in good standing under the laws of
Bermuda, and has the full corporate power and corporate authority to
carry on its business as it is now being conducted, to execute and
deliver this Agreement and any related documents called for herein and
to consummate the transaction contemplated hereby.
3.2 Authorization; Enforceability; Consents. ABCN's Board of
Directors has approved this Agreement and the transaction contemplated
hereby in the manner prescribed by law and has authorized the
execution, delivery and performance of this Agreement. This Agreement,
when executed, will constitute a valid and binding obligation of ABCN,
enforceable in accordance with its terms. Neither the execution and
delivery of this Agreement, nor the consummation of the transactions
contemplated herein, will violate any law, rule, regulation, judgment,
injunction, decree, determination, award or order of any court or
governmental agency or instrumentality, domestic or foreign, or
conflict with or result in any breach of any of the terms of or
constitute a default under or result in the termination of or the
creation or imposition of any mortgage, lien, security interest or
other charge or encumbrance of any nature under ABCN's Memorandum of
Association or Bye-Laws or the terms of any contract or agreement to
which ABCN is a party or by which ABCN or any of the assets and
properties of ABCN is bound. Neither the execution and delivery by
ABCN of this Agreement, nor the consummation by ABCN of any of the
transactions contemplated herein, requires any consent, approval, order
or authorization of, or registration with, or the giving of notice to,
any governmental or public body or authority or any other person,
except for (i) registering OSICOM as a shareholder of ABCN, which ABCN
agrees to do as of the date of receipt of the Purchase Price, and (ii)
any necessary filings with governmental agencies in Bermuda, which ABCN
agrees to do immediately thereafter.
3.3 Share Issuance. Upon closing, the ABCN Shares will be duly and
validly issued, fully paid and nonassessable and no personal liability
will attach to the ownership thereof, and OSICOM will acquire the
legal, valid and marketable title to the ABCN Shares, free and clear of
all mortgages, liens, pledges, charges, claims, security interests,
encumbrances and equities whatsoever.
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3.4 Compliance With Laws. ABCN has complied fully and is in full
compliance in all material respects with all laws, ordinances,
regulations, rules and orders applicable to its businesses and assets.
3.5 Existing Shareholders. The shareholders of ABCN as of the date
of this Agreement and their respective shareholdings and option rights
are listed in Schedule A.
3.6 No Registration under the Securities Act. ABCN understands that
the Osicom Shares have not been registered under the Securities Act, in
reliance upon exemptions contained in the Securities Act or
interpretations thereof, and cannot be offered for sale, sold, or
otherwise transferred unless such Osicom Shares are so registered or
qualify for exemption from registration under the Securities Act.
3.7 Acquisition for Investment. The Osicom Shares are being
acquired by ABCN under this Agreement in good faith solely for its own
account, for investment, and not with a view toward resale or other
distribution within the meaning of the Securities Act. The Osicom
Shares will not be offered for sale, sold, or otherwise transferred by
ABCN without either registration or exemption from registration under
the Securities Act.
3.8 Evaluation of Merits and Risks of Investment. ABCN has such
knowledge and experience in financial and business matters that ABCN is
capable of evaluating the merits and risks of ABCN's investment in the
Osicom Shares. ABCN understands and is able to bear any economic risks
associated with such investment (including, without limitation, the
necessity of holding such Osicom Shares for an indefinite period of
time, inasmuch as such Osicom Shares have not been registered under the
Securities Act.
4. Representations and Warranties of the OSICOM. OSICOM hereby represents,
warrants and agrees, as of the date hereof, as follows:
4.1 Organization and Standing. OSICOM is a corporation duly
organized, validly existing and in good standing under the laws of New
Jersey, and has the full corporate power and corporate authority to
carry on its business as it is now being conducted, to execute and
deliver this Agreement and any related documents called for herein and
to consummate the transaction contemplated hereby.
4.2 Enforceability; Consents. This Agreement , when executed, will
constitute a valid and binding obligation of OSICOM, enforceable in
accordance with its terms. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated
herein, will violate any law, rule, regulation, judgment, injunction,
decree, determination, award
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or order of any court or governmental agency or instrumentality,
domestic or foreign, or conflict with or result in any breach of any of
the terms of or constitute a default under or result in the termination
of or the creation or imposition of any mortgage, lien, security
interest or other charge or encumbrance of any nature under OSICOM's
Certificate of Incorporation or By-laws or the terms of any contract
or agreement to which OSICOM is a party or by which OSICOM or any of
the assets and properties of OSICOM is bound. Neither the execution and
delivery by OSICOM of this Agreement, nor the consummation by OSICOM of
any of the transactions contemplated herein, requires any consent,
approval, order or authorization of, or registration with, or the
giving of notice to, any governmental or public body or authority or
any other person, except for such notices, consents or approvals which
will be obtained before the Closing Date.
4.3 Share Issuance. Upon closing, the OSICOM Shares will be duly
and validly issued, fully paid and nonassessable and no personal
liability will attach to the ownership thereof, and ABCN will acquire
the legal, valid and marketable title to the OSICOM Shares, free and
clear of all mortgages, liens, pledges, charges, claims, security
interests, encumbrances and equities whatsoever.
4.4 Compliance With Laws. Osicom has complied fully and is in full
compliance in all material respects with all laws, ordinances,
regulations, rules and orders applicable to its businesses and assets.
4.5 Existing Shareholders. The shareholders of Osicom holding at
least 10% of the Shares of Osicom as of the date of this Agreement and
their respective shareholdings are listed in Schedule B.
4.6 No Registration under the Securities Act. Osicom understands
that the ABCN Shares have not been registered under the Securities Act,
in reliance upon exemptions contained in the Securities Act or
interpretations thereof, and cannot be offered for sale, sold, or
otherwise transferred unless such ABCN Shares are so registered or
qualify for exemption from registration under the Securities Act.
4.7 Acquisition for Investment. The ABCN Shares are being acquired
by Osicom under this Agreement in good faith solely for its own
account, for investment, and not with a view toward resale or other
distribution within the meaning of the Securities Act. The ABCN Shares
will not be offered for sale, sold, or otherwise transferred by Osicom
without either registration or exemption from registration under the
Securities Act.
4.8 Evaluation of Merits and Risks of Investment. Osicom has such knowledge
and experience in financial and business matters that Osicom
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is capable of evaluating the merits and risks of Osicom's investment in
the ABCN Shares. Osicom understands and is able to bear any economic
risks associated with such investment (including, without limitation,
the necessity of holding such ABCN Shares for an indefinite period of
time, inasmuch as such ABCN Shares have not been registered under the
Securities Act.
5. Conditions of Closing. The Parties shall not be obliged to complete the
purchase herein provided for unless, on the Closing Date, each of the
following conditions shall have been satisfied, it being understood that
the conditions may be waived in writing in whole or in part by either party
at any time:
(1) Representations and Warranties. The representations and
warranties set forth in sections 3 and 4 shall be true and
correct in all material respects on the Closing Date.
(2) Compliance. All of the terms, covenants and agreements set
forth in this Agreement to be complied with or performed by
either party on or before the Closing Date shall have been
complied with or performed.
(3) Cooperation and License Agreement. The parties shall have
entered into the Cooperation and License Agreement dated as
of the date hereof.
(4) Any necessary approval to consummate the sale of shares
hereunder pursuant to the laws of Bermuda shall have been
obtained.
If any of the foregoing conditions shall not have been fulfilled
on or before the Closing Date, either party may terminate this
Agreement by notice in writing to the other party in which event
the parties shall be released from all obligations under this
Agreement; but the parties shall be entitled to waive
compliance with any such condition in whole or in part if it
shall see fit to do so, without prejudice to its right of
termination in the event of non-fulfillment of any other
condition in whole or in part.
6. Notices. All notices, demands, requests, or other communications which
may be or are required to be given, served, or sent by any party to any
other party pursuant to this Agreement shall be in writing in English. Such
notices and communication shall be deemed to have been duly delivered as of
the date so delivered if delivered in person, as of the date confirmed by
telephone discussion with a representative of the recipient if dispatched
via facsimile transmission, or within 15 days of dispatch if dispatched by
registered or certified mail, postage prepaid, to the parties at the
addresses specified below or at such other addresses of the parties as
shall be specified by like notice:
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(i) If to ABCN:
Asia Broadcasting and Communications
Network Ltd.
979/81-95 Phaholyothin Road,
Phyathai, Bangkok 10400 Thailand
Attention: Vorathep Chotinuchit
Facsimile No.: (662) 271-3076
(ii) If to OSICOM:
Osicom Technologies, Inc.
2800 28th Street, Suite 100
Santa Monica, CA 90405
Attention: Par Chadha
Facsimile No.: 310-581-4032
7. Confidentiality.
7.1 Except as specified in Clause 7.2 hereof, this Agreement shall be
kept confidential and no party to this Agreement shall disclose
to any person the terms or existence of this Agreement. In
particular, no party to this Agreement shall make any public
statement in relation to this Agreement or permit to be done any
act or omission which might cause or allow any such statement to
be released.
7.2 The parties to this Agreement shall be entitled to disclose the
terms and the existence of this Agreement and the Shareholders
Agreement if said disclosure:
(a) is required by any governmental authority including the
stock exchange or by law or regulations or at court
proceedings;
(b) is made to the auditors and lawyers of the parties to this
Agreement;
(c) is made to the directors, officers or employees of ABCN or
OSICOM if they should require such information for the
purpose of performing their necessary duties; or
(d) is made with the consent of all parties hereto.
8. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of New York.
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9. Miscellaneous Provisions.
9.1 This Agreement may not be assigned by either party without the
written approval of the other party, provided however, that
either party may assign this Agreement without prior approval to
an affiliate or controlled subsidiary if such affiliate or
subsidiary shall have become a party to this Agreement and
consented to be bound by the terms and conditions hereof.
Notwithstanding the foregoing, neither party may assign the
obligation to issue shares pursuant to this Agreement.
9.2 Neither this Agreement nor any term or provision hereof may be
changed, modified, waived, discharged or terminated except by a
written instrument, signed by the party or parties against whom
enforcement or such change, modification, waiver, discharge or
termination is sought to be enforced. No waiver of a breach of
any provision of this Agreement shall be deemed a waiver of that
provision or of any subsequent breach or default of any kind.
9.3 All of the representations, warranties and agreements of ABCN and
OSICOM contained herein shall survive the closing of the share
issuance contemplated hereby. Each of ABCN and OSICOM agrees to
take such further actions and to execute and deliver such further
instruments as OSICOM or ABCN, respectively, may reasonably
request from time to time in order to fully effectuate the
purposes, terms and conditions of this Agreement.
9.4 The headings that appear in this Agreement have been used for
references purposes only and shall not affect the interpretation
of this Agreement.
9.5 This Agreement may be executed simultaneously in one or more
counterparts, each of which shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be duly executed and delivered as of the date first written above.
ASIA BROADCASTING AND COMMUNICATIONS NETWORK LTD.
By: /s/ Christopher Vizas
- - ----------------------------------
Name: Christopher Vizas
Title: Deputy Chairman
OSICOM TECHNOLOGIES, INC.
By: /s/ Par Chadha
- - ----------------------------------
Name: Par Chadha
Title: Chief Executive Officer
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<PAGE> 1
Exhibit 99.2
COOPERATION AND SUPPLY AGREEMENT
DATED AS OF MARCH 21, 1997
BY AND AMONG
OSICOM TECHNOLOGIES, INC.
AND
ASIA BROADCASTING AND COMMUNICATIONS NETWORK, LTD.
<PAGE> 2
COOPERATION AND SUPPLY AGREEMENT
THIS COOPERATION AND SUPPLY AGREEMENT (the "Agreement") is
entered into as of March 21, 1997, by and between Asia Broadcasting and
Communications Network, Ltd., a Bermuda corporation ("ABCN"), and Osicom
Technologies, Inc., a company incorporated under the laws of the State of New
Jersey, United States of America ("Osicom").
WHEREAS, ABCN and Osicom are parties to a Memorandum of
Agreement dated March 7, 1997 (the "MOA"), regarding various commercial
matters, and ABCN and Osicom desire to set forth more fully certain of the
terms of such MOA;
WHEREAS, ABCN and Osicom are simultaneously entering into a
Share Purchase and Option Agreement dated as of the date of this Agreement;
WHEREAS, Osicom has demonstrated the capability to develop and
manufacture network equipment and technology and consumer terminal devices (the
"Osicom Products") and associated software that would assist ABCN to provide
high-speed Internet access services and desires to become a strategic partner
of ABCN and ABCN desires to obtain the benefit of such Osicom expertise and
that Osicom shall become ABCN's primary supplier of such devices, subject to
the conditions of this Agreement, in connection with the design, construction,
implementation and operation of ABCN's proposed Asia Access System for
providing high-speed Internet access in Asia (the "ABCN System");
WHEREAS, in order to assure continuity and adequacy of supply
of the Osicom Products, ABCN desires Osicom to obtain one or more
submanufacturers of the Osicom Products to be used in connection with the ABCN
System;
NOW, THEREFORE, in consideration of the foregoing, and the
mutual covenants and agreements hereinafter et forth, the parties hereby agree
as follows:
1. Definitions.
1.1. Osicom Products. "Osicom Products" shall mean
network equipment and technology and consumer terminal devices manufactured by
Osicom, including but not limited to the products
<PAGE> 3
listed on Exhibit A hereto, which list of products shall be updated regularly,
at six-month intervals by mutual agreement of the parties, and at other times
as agreed by the parties, to reflect products being manufactured by Osicom.
1.2. Osicom Software. "Osicom Software" shall
mean the software developed and owned exclusively by Osicom which is resident
in the Osicom Products.
1.3. Software. "Software" shall mean,
collectively, the Osicom Software and the Third Party Software.
1.4. Third Party Software. "Third Party
Software" shall mean all software which is resident in the Osicom Products or
used or useful in the ABCN System for which the intellectual property rights do
not belong solely to Osicom.
1.5. Territory. "Territory" shall mean the
countries in which ABCN operates a DBS System, from time to time, throughout
the continent of Asia, including all geographic and political subdivisions
thereof.
1.6. Affiliate. An "Affiliate" shall mean, with
respect to a person or entity, any person or entity which directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with such person or entity, where "control" means
possession, directly or indirectly, of power to direct or cause the direction
of management or policies (whether through ownership of voting securities, by
agreement or otherwise).
1.7. Joint Venture. A separate legal entity to
be formed by Osicom and ABCN in Bermuda or other mutually acceptable
jurisdiction for the purpose of developing any modifications or enhancements to
the Osicom Products, the software resident therein and new products which
Osicom elects not to develop itself under Section 6.1(a) of this Agreement.
Osicom and ABCN will mutually determine in good faith the specific
responsibilities in the operation and financing of the Joint Venture, under
which they will share equally profits and losses.
2. The ABCN System. Osicom acknowledges that ABCN
desires to implement a fully integrated high-speed Internet access
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system, based in part on certain technology and devices developed and
manufactured by Osicom, and based in part on similar technology developed by
others, to offer satellite-based high-speed Internet access throughout the
Territory. Implementing the ABCN System will involve multiple phases of
development, (including but not limited to the following): (a) First Phase, if
required - during the first phase, ABCN and Osicom will work together to
implement the Nippon Telephone & Telegraph ("NTT") "direct PC" technology, if
ABCN enters into a final agreement regarding such technology with NTT, which
agreement shall provide for license of any technology covered thereunder to
Osicom; (b) Second Phase - during the second phase, Osicom and ABCN agree to
work together, subject to the terms of this Agreement, (i) to develop new
technology, products and applications for the ABCN System, and (ii) to make
modifications to Osicom Products and the Asia Access Network necessary to
employ, within the Asia Access Network structure, technologies developed by
others which enable the provision of services attractive to customers in the
Territory, and (c) Manufacturing - during all phases of development, Osicom
shall manufacture Osicom Products (as modified for the Territory in accordance
with the terms herein) or similar products licensed by other entities for use
in the ABCN System.
3. Access Rights
3.1. Acknowledgment. Osicom acknowledges the
complexity of the ABCN System and that in order for designated ABCN officers
and employees to operate a high-speed Internet access system and to utilize and
realize value from the Software and Osicom Products, ABCN needs to develop a
thorough understanding and working knowledge thereof, which the parties agree
shall be obtained through the implementation of the activities contemplated in
Section 3.2 below.
3.2. Disclosure. From and after the execution of
this Agreement, Osicom agrees to disclose to ABCN, and to afford designated
ABCN officers and employees access (in a manner reasonably designed by Osicom
to minimize disruption to its business and maintain the integrity of its files
or other information retention systems) to, all information (whether existing
or subsequently created or obtained) reasonably requested by ABCN which
embodies, supplements or is otherwise necessary or helpful in understanding the
Osicom System, the Software and Osicom
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Products and the Non-Osicom Technology (the "Information") subject to written
and binding confidentiality limitations designated by Osicom or third parties.
3.3. Limitation on Rights. The Information
(including any derivative works or modifications thereof) shall at all times
remain the exclusive property of Osicom or its licensors, as the case may be,
and except as provided herein, ABCN shall not disclose the Information to any
third party for any purpose whatsoever. ABCN may not copy any written
Information without Osicom's prior express written consent, which may be
withheld by Osicom in its absolute discretion.
4. Manufacture and Supply of Osicom Products.
4.1. Designation of Primary Supplier. ABCN agrees
that Osicom shall be the designated supplier of ABCN's requirements for network
equipment and technology and of consumer terminal devices, provided that
Osicom's technology, product quality, prices and terms and conditions therefor
are competitive with alternative ISO 9001 or equivalent sources of supply that
are reasonably commercially available to ABCN, and provided further that Osicom
has demonstrated the ability to manufacture in quantities sufficient to satisfy
ABCN's requirements. Osicom will sell such products to ABCN at prices and on
terms and conditions no less favorable to ABCN than Osicom offers to any other
customer for the same products.
4.2. Purchase Orders. Any orders by ABCN for
Osicom Products must be evidenced by Osicom's standard form written purchase
order (a "Purchase Order"). Each Purchase Order shall be subject to
confirmation and acceptance by Osicom, and shall be a binding commitment by
ABCN upon written notice of acceptance by Osicom to ABCN in accordance with the
terms of the Purchase Order. Any failure to confirm a Purchase Order shall not
be deemed acceptance by Osicom. Osicom will use reasonable commercial efforts
to fulfill all Purchase Orders issued by ABCN which meet the requirements of
this Section. Purchase Orders shall state only: (i) identity of goods, (ii)
quantity of goods, (iii) purchase price of goods, (iv) requested ship date of
goods and (v) the date by which the Purchase Order must be accepted but in no
event less than 5 business days from receipt of the Purchase Order by Osicom.
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Any additional terms stated in a Purchase Order shall not be binding upon
Osicom unless expressly agreed to in writing by Osicom. In the event of any
conflict between the terms of a Purchase Order and the terms of this Agreement,
the terms of this Agreement shall prevail. Warranties shall be as set forth on
Osicom's standard form purchase order. Osicom Products shall be delivered
F.O.B. Santa Monica, California, Hong Kong, Annapolis Junction, Maryland, or
Osicom's subcontractors in Asia. Invoices shall be payable net 30 days.
5. Third Party Manufacturers
5.1. As indicated above, Osicom shall select one or
more acceptable Asian Manufacturers with ISO 9001 or equivalent facilities to
sub-manufacture an agreed percentage of any of the Osicom Products intended
solely for use by the ABCN System or the customers of the ABCN System within
the Territory if and as reasonably requested by ABCN under reasonable and
proper terms, conditions and requirements of confidentiality. If reasonably
requested by ABCN, Osicom shall choose submanufacturers which, with respect to
a designated Osicom Product, individually or in the aggregate have the capacity
to fulfill ABCN's purchase orders if and to the extent Osicom's own or primary
manufacturing facilities are unable or unwilling to manufacture such item(s).
In any and all events, all Osicom Products shall be sold, supplied and/or
distributed to ABCN by or through Osicom.
6. Modification of Software and Osicom Products.
6.1. Joint Modifications and Enhancements of the
Osicom Products/Joint Venture.
(a) The parties will cooperate to develop or
perform, modifications or enhancements to the Osicom Products or the software
resident therein (the "Osicom Software") which are necessary or desirable for
the utilization, sale or marketing of the Osicom Products in conjunction with
the ABCN System. Osicom shall have the sole right and option to develop and/or
perform any modifications or enhancements to the Osicom Products or software
resident therein (or develop any requested new products); provided, however,
that if Osicom elects not to do so, the parties may in good faith determine to
pursue any necessary development and manufacturing in the Joint Venture. In
such event, Osicom and ABCN
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(or the Acceptable Asian Manufacturer, as the case may be) shall in good faith
discuss and agree in writing upon an acceptable budget and delivery date (the
"Delivery Date") for such modification or enhancement.
(b) Any and all intellectual property rights
which result from the development of the modifications or enhancements and new
products hereunder shall be and remain the property of Osicom; provided,
however, that "Osicom Software" and "Osicom Products" shall include such
software and products as modified or enhanced hereunder and, only with respect
to modifications and enhancements developed by the Joint Venture, the Joint
Venture shall receive a perpetual royalty free license to manufacture and use
such modifications and enhancements for the sole purpose of manufacturing and
selling Osicom Products for use with the ABCN System.
7. Unauthorized Use of Technology; Indemnification.
7.1. Notification. Each party shall notify the
other party promptly in writing of any actual or alleged unauthorized third
party use or misappropriation of the Software or the Osicom Products and shall
provide any available evidence thereof.
7.2. Prosecuting Misuse or Misappropriation.
(a) Osicom shall have the right, but
shall not be obligated, to prosecute at its own expense any such misuse or
misappropriation of the Software and Osicom Products, and Osicom hereby agrees
that ABCN may join Osicom as a party plaintiff in any such suit, at ABCN's
expense. The total cost of any such action commenced or defended solely by
Osicom shall be borne by Osicom, and Osicom shall keep any recovery or damages
derived therefrom.
(b) During the term of this Agreement,
if Osicom declines to pursue a claim against a third party for misuse or
misappropriation of the Software and Osicom Products in the Territory within 60
days after learning of the same, ABCN shall have the right, but shall not be
obligated, to prosecute at its own expense any such misuse or misappropriate of
the Software and Osicom Products in the Territory, and ABCN hereby agrees that
Osicom may join ABCN as a party plaintiff in any such suit, at
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Osicom's expense. The total cost of any action commenced or defended solely by
ABCN shall be borne by ABCN, and ABCN shall keep any recovery or damages
derived therefrom
(c) In the event ABCN and Osicom jointly
prosecute misuse or misappropriation of the Software and Osicom Products in the
Territory by a third party, the parties shall each bear their own expense, and
the costs of any recovery shall be allocated (i) first to the payment of the
parties' expenses, on a proportional basis, and (ii) any award above the
expenses shall be divided fifty percent (50%) to ABCN and fifty percent (50%)
to Osicom.
7.3. Indemnification by Osicom. Subject to the
provisions of Section 10 below, Osicom will, at its expense, defend ABCN
against, and pay all costs and damages made in settlement approved by Osicom in
writing or awarded (by a final order of a court of competent jurisdiction)
against ABCN resulting from, any and all Claims (as defined below) based on an
allegation that the Software or any component of the Osicom products infringes
a U.S. patent, copyright, trademark, trade secret or other proprietary right of
any third party, provided that ABCN (i) gives Osicom prompt written notice of
any such Claim, (ii) allows Osicom to direct the defense and settlement of the
Claim, and (iii) provides Osicom with the information and assistance necessary
for the defense and settlement of the Claim. If a final injunction is obtained
in an action based on any such Claim against ABCN's use of such Software or any
such component of the Osicom Products by reason of such infringement, or if in
Osicom's opinion such an injunction is likely to be obtained, Osicom shall
either (a) obtain for ABCN the right to continue using the Software or the
infringing component, or (b) provide such services as may be necessary to
modify the Software or the infringing component so that it becomes
noninfringing. For purposes of this Agreement, "Claims" shall mean all
demands, claims, actions or causes of action by third-parties (other than
Affiliates of ABCN) resulting in assessments, losses, damages (including,
without limitation, diminution in value), liabilities, costs and expenses to
ABCN or its Affiliates, including, without limitation, interest, penalties and
attorneys' fees and disbursements.
8. Export Matters.
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Compliance with the Export Administration Act of 1979, as
amended, and the regulations promulgated thereunder, in connection with the
performance of the terms of this Agreement, including obtaining the necessary
licenses and approvals for export of technology, shall be the sole
responsibility of OSICOM, and OSICOM shall use its best commercially reasonable
efforts to effect such compliance as soon as practicable.
9. Dispute Resolution.
9.1. Good Faith Negotiations. ABCN and OSICOM agree
to attempt to resolve any question or dispute that arises regarding or under
this Agreement through prompt good faith discussions between their respective
officers with decision-making authority. The parties expressly acknowledge and
agree that all their respective obligations and responsibilities shall continue
in full force and effect during and despite the discussion of any dispute
(other than any dispute which has resulted in an attempt to terminate this
Agreement as evidenced by written notice of termination).
9.2. Binding Arbitration. Any and all claims,
disputes or controversies arising under, out of, or in connection with this
Agreement, which have not been resolved by good faith negotiations between the
parties, shall be resolved exclusively by final and binding arbitration in
Washington, D.C. USA, under then current rules of the International Chamber of
Commerce (the "ICC"), by a three-person arbitration panel. ABCN and Osicom
shall each have the right to choose one of the arbitrators, and the third
arbitrator shall be mutually chosen from a list of arbitrators in accordance
with the ICC rules. The arbitrators shall have no power to add to, subtract
from or modify any of the terms or conditions of this Agreement.
9.3. Award. Any award made (i) shall be in writing
and state the arbitration panel's findings of fact and conclusions of law; (ii)
shall be made promptly, and in any event within sixty (60) days after the
conclusion of the arbitration hearing; and (iii) may contain an award of
attorneys' fees for the prevailing party in the interest of justice. The costs
of any arbitration proceeding shall be equally divided between or among the
involved parties, and each party shall bear its own expenses, including
attorneys' fees, unless otherwise awarded by the arbitration panel.
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10. Term and Termination; Remedies.
10.1. Term. The term of this Agreement shall
commence on the date first written above and shall continue for so long as
ABCN or its successor operates a DBS System or until terminated in accordance
with this Section 13 or elsewhere in this Agreement. As used in the preceding
sentence, "successor" means a successor by operation of law and any transferee
of ABCN's rights to operate a DBS System, which transferee must assume ABCN's
obligations under this Agreement.
10.2. Termination by Either Party. If either party
shall declare bankruptcy or insolvency or be adjudged a bankrupt, or have a
receiver appointed, or cease to carry on its business, this Agreement shall
terminate effective upon written notice by the party continuing in business to
the party ceasing to carry on its business.
10.3. Termination for Cause. Subject to the
requirements of Section 9 hereof regarding good faith negotiation and
arbitration as to any individual issue in dispute, either party may terminate
this Agreement for cause if the other party has materially breached its
obligations hereunder, and such breach has continued for a period of ninety
(90) days after receipt of a notice specifying in detail the nature and extent
of such breach, and is not cured within ninety (90) days after notification of
such failure provided, that if the party alleged to be in breach is diligently
seeking to cure such breach but cannot do so within such ninety-day period, the
parties shall agree on a reasonable period, not to exceed an additional 120
days, in which to complete the cure. In the event of an alleged breach which
is denied to be a breach by the allegedly breaching party and is therefore
submitted to arbitration, and which is found to be an actual breach by the
arbitrator, the breaching party shall have the right to cure the breach within
the time frame set forth above, with the date of the arbitrator's decision to
be the beginning of the first ninety (90) day period.
10.4. Joint Venture Remedy. Notwithstanding Section
10.3 of this Agreement to the contrary, in the event that either party is in
breach of an obligation under this Agreement, Osicom and ABCN will use their
best efforts to transfer such obligation to the Joint Venture rather than
having the applicable party declared
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in breach, subject to the requirements of Section 9 hereof regarding good faith
negotiation and arbitration of any individual issue in dispute. By way of
example but not limitation, if Osicom is unable to manufacture a specific
Osicom Product in a timely manner, the Joint Venture will assume the obligation
to manufacture such Osicom Product and Osicom will be relieved of the
obligation to manufacture such Osicom Product.
11. Confidentiality. All information transmitted in
writing, orally or electronically, whether marked or indicated as
"Confidential," received by either party under this Agreement that is not known
by, or generally available to the public at large shall be deemed "Confidential
Information" hereunder. The recipient of Confidential Information will not,
without the prior written consent of the providing party, use any portion of
the Confidential Information for any purpose other than those contemplated by
this Agreement, and (i) will hold the Confidential Information in the strictest
confidence, (ii) will exercise the same care with respect thereto as it
exercises with respect to its own proprietary and confidential information, and
will not, without the providing party's prior written consent, copy or disclose
any portion thereof to any third party other than as contemplated by this
Agreement. The foregoing shall not prohibit or limit the recipient's use of
information (including, but not limited to, ideas, concepts, know-how,
techniques, and methodologies) that (which can be shown by written evidence):
(a) is already known to it; (b) is independently developed by it; (c) was
received by the recipient on a nonconfidential basis, prior to receipt from the
providing party, from a third party lawfully possessing and lawfully entitled
to disclose such information without restriction or obligation of
confidentiality; or (d) becomes part of the public domain through no breach by
the recipient of this Agreement. This Agreement shall not be construed as
granting or conferring any rights by license or otherwise, expressly or
implicitly, to the Confidential Information, or any invention, discovery or
improvement to the Confidential Information, made, conceived or acquired prior
to or after the date of this Agreement. The terms of the existing
Confidentiality Agreement between Affiliates of the parties to this Agreement
are hereby incorporated herein as if the Confidentiality Agreement had been
signed by the parties to this Agreement, and the scope of that Confidentiality
Agreement is hereby extended to include the matters contemplated by this
Agreement. Notwithstanding the foregoing, each of the parties
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hereto shall be entitled to make any disclosure: (a) required by any
governmental authority, the stock exchange or interdealer quotation system
(such as Nasdaq), by law or regulations or at court proceedings; (b) to the
auditors, lawyers, investment bankers or other representations of the parties
to this Agreement; (c) to the directors, officers or employees of ABCN or
OSICOM for the purpose of enabling them to perform their duties; or (d) with
the written consent of other party hereto.
12. Representations and Warranties of ABCN. ABCN hereby
represents and warrants to OSICOM as follows:
12.1. Organization and Standing. ABCN is a
corporation duly organized, validly existing and in good standing under the
laws of Bermuda, and has the full corporate power and corporate authority to
carry on its business as it is now being conducted, to execute and deliver this
Agreement and the other documents referred to herein (the "Transaction
Documents") and to consummate the transactions contemplated hereby or thereby.
ABCN is qualified as a foreign corporation in every jurisdiction in which the
failure to so qualify would have a material adverse effect on its business.
12.2. Authorization; Enforceability. ABCN's Board of
Directors has approved the Transaction Documents and the transactions
contemplated thereby in the manner prescribed by law and authorized the
execution, delivery and performance of the Transaction Documents. The
Transaction Documents, when executed, will constitute valid and binding
obligations of ABCN, enforceable in accordance with their respective terms,
except as the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by the application of general principles of
equity (regardless of whether such enforceability is considered in a proceeding
at law or in equity).
12.3. No Violations; Consents. Neither the execution
and delivery of the Transaction Documents, nor the consummation of the
transactions contemplated thereby, will violate any law, rule, regulation,
judgment, injunction, decree, determination, award or order of any court or
governmental agency or instrumentality, domestic or foreign, or conflict with
or result in any breach of any of the terms of or constitute a default under
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or result in the termination of or the creation or imposition of any mortgage,
lien, security interest or other charge or encumbrance of any nature under
ABCN's Memorandum of Association or Bye-Laws or the terms of any contract or
agreement to which ABCN is a party or by which ABCN or any of the assets and
properties of ABCN is bound. Neither the execution and delivery by ABCN of
this Agreement, nor the consummation by ABCN of any of the transactions
contemplated herein, requires any consent, approval, order or authorization of,
or registration with, or the giving of notice to, any governmental or public
body or authority or any other person.
13. Representations and Warranties of OSICOM. OSICOM
hereby represents and warrants to ABCN as follows:
13.1. Organization and Standing. OSICOM is a
corporation duly organized, validly existing and in good standing under the
laws of the State of New Jersey, and has the full corporate power and corporate
authority to carry on its business as it is now being conducted, to execute and
deliver the Transaction Documents and to consummate the transactions
contemplated thereby.
13.2. Authorization; Enforceability. OSICOM's Board
of Directors has approved the Transaction Documents and the transactions
contemplated thereby in the manner prescribed by law and authorized the
execution, delivery and performance of the Transaction Documents. The
Transaction Documents, when executed, will constitute valid and binding
obligations of OSICOM, enforceable in accordance with their respective terms,
except as the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by the application of general principles of
equity (regardless of whether such enforceability is considered in a proceeding
at law or in equity).
13.3. No Violations; Consents. Neither the execution
and delivery of the Transaction Documents, nor the consummation of the
transactions contemplated thereby, will violate any law, rule, regulation,
judgment, injunction, decree, determination, award or order of any court or
governmental agency or instrumentality, domestic or foreign, or conflict with
or result in any breach of any of the terms of or constitute a default under or
result in the termination of or the creation or imposition of any mortgage,
lien, security interest or other charge or
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encumbrance of any nature under OSICOM's Certificate of Incorporation or
By-Laws or the terms of any contract or agreement to which OSICOM is a party or
by which OSICOM or any of the assets and properties of OSICOM is bound.
Neither the execution and delivery by OSICOM of this Agreement, nor the
consummation by OSICOM of any the transactions contemplated herein, requires
any consent, approval, order or authorization of, or registration with, or the
giving of notice to, any governmental or public body or authority or any other
person (except such approvals relating to export of technology which OSICOM may
be required to obtain under this Agreement.
14. Miscellaneous Provisions.
14.1 Additional Actions and Documents. Each of
the parties hereto shall take or cause to be taken such further actions, shall
execute, deliver and file or cause to be executed, delivered, and filed such
further documents and instruments, and shall obtain such consents as may be
necessary or as the other party may reasonably request in order fully to
effectuate the purposes, terms, and conditions of this Agreement.
14.2 Assignment; Affiliates. Neither party may
assign its rights under this Agreement or any interest therein, or attempt to
have any other person or entity assume its obligations under this Agreement,
without the prior written consent of the other party hereto, provided, however,
that each of ABCN and OSICOM may assign its rights and liabilities to an
Affiliate, and ABCN must assign its rights to any transferee of its rights to
operate a DBS System, provided that ABCN and OSICOM shall remain responsible
for their respective obligations hereunder, notwithstanding any such
assignment.
14.3 Notices. All notices, demands, requests, or
other communications which may be or are required to be given, served, or sent
by any party to any other party pursuant to this Agreement shall be in writing
and shall be faxed and mailed by first-class mail, postage prepaid, or
transmitted by hand delivery, overnight or express mail, addresses as follows:
(i) If to ABCN: Asia Broadcasting and Communications
Network, Ltd.
979/81-95 Phaholyothin Road,
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Phyathai, Bangkok 10400 Thailand
Attention: Vorsthep Chotinuchit
Facsimile No.: (662) 271-3076
(ii) If to OSICOM: Osicom Technologies, Inc.
2800 28th Street, Suite 100
Santa Monica, CA 94405 U.S.A.
Attention: Par Chadha
Facsimile No.: (310) 581-4032
with a copy to: W. Raymond Felton, Esq.
Greenbaum, Rowe, Smith, Ravin,
Davis & Himmel
99 Wood Avenue South
Iselin, NJ 08830 U.S.A.
Facsimile No.: (908) 549-0315
Each party may designate by notice in writing a new address or person to which
any notice, demand, request or communication may thereafter be so given, served
or sent. Each notice, demand, request or communication which shall be mailed,
delivered or transmitted in the manner described above shall be deemed
sufficiently given, served, sent or received for all purposes at such time as
it is delivered to the addressee (with the return receipt, the delivery receipt
or affidavit of messenger being deemed conclusive evidence of such delivery) or
at such time as delivery is refused by the addressee upon presentation.
14.4. Severability. If fulfillment of any provision
of this Agreement or performance of any transaction related thereto, at the
time such fulfillment or performance shall be due, shall involve transcending
the limit of validity prescribed by law, then the obligation to be fulfilled or
performed shall be reduced to the limit of such validity; and if any clause or
provision contained in any Transaction Document operates or would operate
prospectively to invalidate any Transaction Document, in whole or in part, then
such clause or provision only shall be held in effective, as though not herein
or therein contained, and the
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remainder of the Transaction Document shall remain operate and in full force
and effect.
14.5. Waivers. No waiver by any part of, or consent
by any party to, a variation from the requirements of any provision of this
Agreement shall be effective unless made in a written instrument duly executed
by or on behalf of such party, and any such waiver shall be limited solely to
those rights or conditions expressly waived.
14.6. Entire Agreement; Modification; Priority;
Benefit. This Agreement, the MOA and the other Transaction Documents
constitute the entire agreement of the parties hereto with respect to the
matters contemplated herein, supersede all prior oral and written memoranda and
agreements with respect to the matters contemplated herein, and may not be
modified, deleted or amended except by written instrument executed by the
parties. All provisions of this Agreement shall be binding upon, and shall
inure to the benefit of and be enforceable by, the parties hereto and their
respective successors and permitted assigns.
14.7. Taxes. Any and all payments required under
this Agreement to be made by one party (the "Paying party") to the other party
(the "Receiving Party") shall be made free and clear of and without deduction
or withholding for any and all present or future non- U.S. taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto (all such taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes") unless such Taxes are
required by law or the administration thereof to be deducted or withheld. If
the Paying Party shall be required by law or administration thereof to be
deducted or withhold any Taxes from or in respect of any sum payable hereunder,
(i) the sum payable shall be increased as may be necessary so that after making
all required deductions or withholdings (including deductions or withholdings
applicable to additional amounts paid under this Section) the Receiving Party
receives an amount equal to the sum it would have received if no such deduction
or withholding had been made, (ii) the Paying Party shall make such deductions
or withholdings; and (iii) the Paying Party shall forthwith pay the full amount
deducted or withheld to the relevant taxation or other authority in accordance
with applicable law. Within 30 days after the date of any payment of Taxes,
the Paying Party will furnish to
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the Receiving party a copy of a receipt evidencing payment thereof. The
provisions of this section shall also apply to any amounts payable to an
Affiliate of OSICOM.
14.8. Force Majeure. (a) If by reason of a Force
Majeure (as defined below), OSICOM or ABCN is unable, wholly or in part, to
perform or comply with its respective obligations hereunder, then both parties
shall be relieved of liability and shall suffer not prejudice for failing to
perform or comply during the continuance and to the extent of the inability so
caused from and after the happening of the event of Force Majeure, provided
that the party invoking the Force Majeure gives to the other party prompt
notice, written or oral (but if oral, promptly confirmed in writing) of such
inability and reasonably full particulars of the cause thereof. If notice is
not promptly given then the parties shall only be relieved from such
performance or compliance from and after the giving of such notice. The party
invoking Force Majeure shall use all reasonable efforts to remedy the situation
and remove, so far as possible and with reasonable dispatch, the cause of its
inability to perform or comply, provided, however, that settlement of strikes,
lockouts and other industrial disturbances shall be wholly within the
discretion of the party involved. The party invoking Force Majeure shall give
prompt notice of the cessation thereof. For greater certainty, if a party
invokes Force Majeure to excuse it from performance of an obligations
hereunder, the other party shall abe relieved of its obligation to make any
payment to the party invoking Force Majeure on account of such obligation which
is not being performed.
(b) The term "Force Majeure" shall mean any cause of
any kind whatsoever not within the control of a party and which such party
could not, by reasonable diligence, have foreseen or avoided, which may include
without limitation the following: acts of God and the public enemy; the
elements; fire; accidents; breakdowns; vandalism; sabotage; breakage or
accident to equipment; satellite or equipment failure; the necessity of making
repairs to equipment; strikes; lockouts and any other industrial, civil or
public disturbances; any laws, orders, rules, regulations, acts or restraints
of any government or governmental body or authority, civil or military,
including the orders and judgment of courts; provided, however, that the term
"Force Majeure" shall not include the revocation or modification of any
necessary governmental consent, authorization or approval caused by a violation
of the
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terms thereof or consented by the party holding such consent, authorization or
approval.
14.9. Governing Law. This Agreement, the rights and
obligations of the parties hereto, and any claims or disputes relating thereto
shall be governed by and construed in accordance with the laws of the State of
New York (but not included the choice of law rules thereof or the United
Nations Convention on Contracts for the International Sale of Goods).
14.10. Execution. To facilitate execution, this Agreement
and any of the other Transaction Documents may be executed in as many
counterparts as may be required; and it shall not be necessary that the
signatures of, or on behalf of, each party, or the signatures of all persons
required to bind any party, appear on each counterpart, but it shall be
sufficient that the signature of, or on behalf of, each party, or the
signatures of the persons required to bind any party, appear on one or more of
the counterparts. All counterparts shall collectively constitute a single
agreement.
14.11. Binding Effect. This Agreement shall be binding upon
the parties hereto and their successors and permitted assigns, if any.
IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement, or have caused this Agreement to be duly executed on their behalf,
as of the date first written above.
ASIA BROADCASTING AND OSICOM TECHNOLOGIES, INC.
BROADCASTING NETWORK, LTD.
By: /s/Christopher Vizas By: /s/Par Chadha
-------------------------- --------------------------
Name: Christopher Vizas Name: Par Chadha
------------------------ ------------------------
Title: CEO Title: CEO
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