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EXHIBIT 10.4
TERMINATION AGREEMENT
This TERMINATION AGREEMENT (this "Agreement") is made this 18th day of
October, 2000, by and among Antec Corporation, a Delaware corporation
("Antec"), Nortel Networks Inc., a Delaware corporation, f/k/a Northern Telecom
Inc. ("Nortel Networks"), Nortel Networks LLC, a Delaware limited liability
company ("Nortel Networks LLC"), Nortel Networks Limited, a Canadian
corporation ("Nortel Networks Ltd."), Broadband Parent Corporation, a Delaware
corporation ("Broadband Parent Corporation"), and Arris Interactive L.L.C., a
Delaware limited liability company, f/k/a Products Venture L.L.C. ("Existing
Venture").
WHEREAS, Antec, Nortel Networks, Existing Venture and Systems
Integration Venture L.L.C., a Delaware limited liability company, the existence
of which in the State of Delaware was terminated on September 21, 1998 ("SI
Venture"), are parties to the First Framework Agreement, dated as of November
1, 1995 (the "First Framework Agreement"); and
WHEREAS, Antec, Nortel Networks, Nortel Networks LLC and Existing
Venture are parties to the Second Framework Agreement, dated as of March 31,
1999 (the "Second Framework Agreement");
WHEREAS, Existing Venture and Nortel Networks are parties to the
Products Distributor Agreement dated as of November 17, 1995 (the "First
Distributor Agreement");
WHEREAS, Existing Venture and Nortel Networks are parties to the
second Products Distributor Agreement dated as of March 31, 1999 (the "Second
Distributor Agreement");
WHEREAS, Existing Venture and Nortel Networks are parties to the
International Products Distributor Agreement dated as of June 10, 1997, as
amended by a memorandum of agreement, dated as of September 3, 1997, and
further amended by Amendment No. 1 to International Products Distributor
Agreement, dated as of March 31, 1999 (the "International Distributor
Agreement");
WHEREAS, Existing Venture and Antec are parties to the Products
Distributor Agreement dated as of November 17, 1995, as amended by the
Amendment to Products Distributor Agreement, dated as of March 31, 1999 (the
"Antec Distributor Agreement");
WHEREAS, Antec and Nortel Networks LLC are parties to the Amended and
Restated LLC Agreement of Existing Venture, dated as of March 31, 1999 (the
"LLC Agreement");
WHEREAS, Existing Venture, Nortel Networks and Antec are parties to
the Asset Sale and Contribution Agreement, dated as of November 1, 1995 (the
"First Asset Agreement");
WHEREAS, Existing Venture and Nortel Networks LLC are parties to the
Asset Sale and Contribution Agreement, dated as of March 31, 1999 (the "Second
Asset Agreement");
WHEREAS, Nortel Networks and Existing Venture are parties to the
License Agreement dated as of November 17, 1995, as amended by that certain
Amendment to License Agreement,
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dated as of March 31, 1999 between Existing Venture, Nortel Networks Ltd. and
Nortel Networks (the "Nortel Networks License Agreement");
WHEREAS, Nortel Networks, Antec and Existing Venture are parties to
the Intellectual Property Rights Agreement dated as of November 17, 1995, as
amended by that certain Amendment to Intellectual Property Rights Agreement
dated as of March 31, 1999, as amended by the Amendment to Intellectual
Property Rights Agreement (the "IP Rights Agreement");
WHEREAS, Nortel Networks, Antec and Existing Venture are parties to
the Secured Loan Agreement, dated as of November 15, 1995, as amended by the
Agreement, dated as of February 27, 1998 between Nortel Networks, Antec and
Existing Venture, as further amended by the Amendment to Secured Loan
Agreement, Security Agreement and Pledge Agreement, dated as of March 31, 1999,
between Nortel Networks LLC, Existing Venture and Antec (the "Secured Loan
Agreement");
WHEREAS, Nortel Networks and Antec are parties to the Pledge
Agreement, dated as of November 17, 1995, as amended (the "Pledge Agreement");
WHEREAS, Nortel Networks and Antec are parties to the Security
Agreement, dated as of November 17, 1995, as amended (the "Security
Agreement");
WHEREAS, Nortel Networks (and certain of its Affiliates (as defined in
that certain Agreement and Plan of Reorganization (the "Merger Agreement"),
dated as of the date hereof, by and among Antec, Nortel Networks, Nortel
Networks LLC, Existing Venture LLC, Broadband Parent Corporation, a Delaware
corporation ("Broadband Parent Corporation") and Broadband Transition
Corporation, a Delaware corporation ("Broadband Transition Corporation")) and
Existing Venture are parties to the Loaned Employee Agreement, dated as of
March 31, 1999, as amended by the Amendment to Loaned Employee Agreement, dated
as of October 18, 2000 (the "Loaned Employee Agreement");
WHEREAS, Nortel Networks and Existing Venture are parties to a
Services Agreement, dated as of November 17, 1995 (the "Nortel Networks
Services Agreement");
WHEREAS, Antec and Existing Venture are parties to a Services
Agreement, dated as of November 17, 1995 (the "Antec Services Agreement"); and
WHEREAS, Nortel Networks LLC and Antec are parties to the Earnout
Share Agreement, dated as of March 31, 1999 (the "Earnout Share Agreement");
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Each of the First Framework Agreement, Second Framework
Agreement, First Distributor Agreement, Second Distributor Agreement, Antec
Distributor Agreement, International Distributor Agreement, LLC Agreement,
First Asset Agreement, Second Asset Agreement, Nortel Networks License
Agreement, IP Rights Agreement, Secured Loan Agreement, Pledge Agreement,
Security Agreement, Loaned Employee Agreement, Nortel Networks Services
Agreement, Antec Services Agreement and Earnout Share Agreement
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(collectively, the "Terminated Agreements"), as well as any and all other
agreements or arrangements, written or oral, between or among (i) Nortel
Networks (and/or any of its Affiliates), (ii) Antec, (iii) Existing Venture
and/or (iv) SI Venture that relate to Existing Venture or SI Venture and are in
effect on the date hereof (including, without limitation, the distribution of
products thereof and the licensing of intellectual property thereto or
therefrom), shall be terminated as of the Effective Time (as defined in the
Merger Agreement) and shall be of no further force or effect; provided that,
notwithstanding the foregoing, (A) the Merger Agreement, the Ancillary
Agreements (as defined in the Merger Agreement), and any and all documents and
instruments executed and delivered in connection with any thereof, shall not
constitute Terminated Agreements and shall not be terminated or otherwise
affected hereby, and (B) (i) any and all rights and obligations under any
Terminated Agreements which, by the express provisions thereof, survive
termination thereof shall so survive in accordance with the terms thereof, and
(ii) to the extent survival thereof is not expressly provided for in the
relevant Terminated Agreement, any and all rights and obligations under any
Terminated Agreement relating to indemnification, product or intellectual
property warranties, confidentiality and similar matters which are customarily
intended to survive termination of the applicable agreement or instrument shall
survive the effectiveness of this Agreement to the extent they are customarily
intended to do so.
2. Notwithstanding the foregoing, in the event that the
Terminated Agreements do not terminate as provided for in Section 1 of this
Agreement, the following shall occur effective as of the earlier of (i) the
termination of the Merger Agreement or (ii) the Outside Closing Date (as
defined in the Merger Agreement) (as it may be extended pursuant to the terms
of the Merger Agreement), unless the Merger Agreement is terminated by Antec
(other than resulting from suits, proceedings or other actions initiated by
Antec or any of its Affiliates) pursuant to Section 9.01(b) or by either party
due to the non-fulfillment of Section 8.01(b) (limited to approvals required
under the HSR Act) or Section 8.01(c) (other than resulting from suits,
proceedings or other actions initiated by Antec or any of its Affiliates):
(a) the Second Framework Agreement shall be amended by
deleting Article IV thereof in its entirety;
(b) the First Framework Agreement shall be amended by
deleting Article IV thereof in its entirety;
(c) the First Distributor Agreement shall be amended by
deleting Section 7(i) thereof in its entirety;
(d) the Second Distributor Agreement shall be amended by
deleting Section 7(h) thereof in its entirety;
(e) the International Distributor Agreement shall be
amended by deleting Section 7(i) thereof in its entirety; and
(f) the Antec Distributor Agreement shall be amended by
deleting Section 7(j) thereof in its entirety;
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provided, however, that, notwithstanding the foregoing provisions of this
Section 2, if the Registration Statement is not declared effective by the SEC
prior to the Outside Closing Date by reason of lack of audited financial
statements of Arris for periods prior to March 31, 1999 covering the assets and
business contributed to Arris by Nortel Networks LLC pursuant to the Second
Asset Agreement, then the provisions of Article IV of the First Framework
Agreement and of Article IV of the Second Framework Agreement shall (A)
continue in effect until August 31, 2001, (B) terminate and cease to be of any
further force or effect commencing on September 1, 2001, except for constant
bit rate products for use in a Hybrid Fiber Coaxial Cable network that are
directly competitive with Arris' constant bit rate products as described in
Section 1.0 (Cornerstone Voice Products) of Schedule B to the Intellectual
Property Agreement, between Nortel Networks Ltd. and Arris, attached as Exhibit
E to the Merger Agreement, and (C) be terminated and cease to be of further
force or effect for all purposes commencing on February 28, 2002.
3. This Agreement may be executed in one or more counterparts, each of
which when executed shall be deemed to constitute an original but all of which
when taken together shall constitute one and the same instrument.
4. This Agreement shall be governed by, and interpreted in
accordance with, the laws of the State of Delaware, without regard to the
conflict of law principles thereof.
5. All notices, requests and other communications hereunder to a
party shall be in writing and shall be deemed given if personally delivered,
telecopied (with confirmation) or three Business Days after being mailed by
registered or certified mail (return receipt requested) or one Business Day
after being delivered by overnight courier to such party at its address set
forth below or such other address as such party may specify by notice to the
parties hereto.
If to Nortel Networks, Nortel Networks Ltd. or Nortel Networks LLC, to:
Nortel Networks Inc.
200 Athens Way
Nashville, TN 37228
Attention: Legal Department
Fax: (615) 432-4067
With a copy to:
Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
Attention: Dimitri P. Racklin
Fax: (617) 526-5000
Phone: (617) 526-6748
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If to the Company or Broadband Parent Corporation, to:
Antec Corporation
11450 Technology Circle
Duluth, GA 30097
Attention: Lawrence Margolis
Fax: (678) 473-8470
With a copy to:
Troutman Sanders LLP
600 Peachtree St.
Suite 5200
Atlanta, GA 30308
Attention: W. Brinkley Dickerson, Jr.
Fax: 404-885-3900
Phone: 404-885-3000
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on the day and year first above written.
ANTEC CORPORATION
By: /s/ Lawrence A. Margolis
-----------------------------------
Name: Lawrence A. Margolis
Title: Executive Vice President
NORTEL NETWORKS INC.
By: /s/ Steve Pusey
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Name: Steve Pusey
Title: President Local Internet
NORTEL NETWORKS LIMITED
By: /s/ Blair F. Morrison
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Name: Blair F. Morrison
Title: Assistant Secretary
By: /s/ William R. Kerr
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Name: William R. Kerr
Title: SVP, Corporate Business
Development
NORTEL NETWORKS LLC
By: /s/ Steve Pusey
-----------------------------------
Name: Steve Pusey
Title: President
BROADBAND PARENT CORPORATION
By: /s/ Lawrence A. Margolis
-----------------------------------
Name: Lawrence A. Margolis
Title: Vice President and Secretary
ARRIS INTERACTIVE L.L.C.
By: /s/ James O. Lakin
-----------------------------------
Name: James O. Lakin
Title: Chief Marketing Officer
