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EXHIBIT 10.27
MRV COMMUNICATIONS, INC.
COMMON STOCK
PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is made and
entered into as of November 26, 1996 by and between MRV COMMUNICATIONS, INC., a
Delaware corporation (the "COMPANY"), and INTEL CORPORATION, a Delaware
corporation (the "Investor").
RECITAL:
A. The Company desires to sell to the Investor; and the Investor
desires to purchase from the Company, shares of the Company's Common Stock, par
value $.0034 per share (the "Common Stock") on the terms and conditions set
forth in this Agreement:
NOW, THEREFORE, in consideration of the foregoing recital, the mutual
promises hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Agreement To Purchase and Sell Stock and To Issue Warrants.
1.1 Agreement To Purchase and Sell Common Stock. The
Company hereby agrees to sell to the Investor at the Closing (as defined in
Section 2.1), and the Investor agrees to purchase from the Company at the
Closing, 200,000 shares of Common Stock at the aggregate purchase price of Four
Million Dollars ($4,000,000). The shares of Common Stock purchased and sold
pursuant to this Agreement will be hereinafter referred to as the "Purchased
Shares."
1.2 Agreement To Issue Warrants. The Company hereby also
agrees, if and only if the Closing occurs, to issue to the Investor at the
Closing three stock purchase warrants (collectively, the "Warrants") in the
forms attached hereto as Exhibit A-1, A-2 and A-3. The shares of Common Stock
purchasable upon exercise of the Warrants will be collectively hereinafter
referred to as the "Warrant Shares."
1.3 Use of Proceeds. The Company shall use the proceeds
of the sale of the Purchased Shares for general corporate purposes.
2. Closing.
2.1 The Closing. The purchase and sale of the Purchased
Shares and the issuance of the Warrants will take place at the offices of
Gibson, Dunn & Crutcher LLP, 525 University Avenue, Palo Alto, California, at
10:00 a.m. California time, on a date designated by the Company by at least two
(2) days' prior written notice to the Investor, but not later than November 26,
1996, or at such other time and place as the Company and the Investor mutually
agree upon (which time and place are referred to in this Agreement as the
"Closing"). At the Closing, the Company will deliver to the Investor a
certificate representing the Purchased Shares and the Warrants, against
delivery to the Company by the Investor of the full purchase price of the
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Purchased Shares, paid by a certified or cashiers check payable to the
Company's order, or wire transfer of funds to the Company, or by any
combination of the foregoing.
3. Representations and Warranties of the Company. The Company
hereby represents and warrants to the Investor that the statements in this
Section 3 are true and correct as of the date hereof and as of the date of
Closing, except as set forth in the Schedule of Exceptions (the "Schedule of
Exceptions") attached to this Agreement as Schedule 1:
3.1 Organization, Good Standing and Qualification. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all corporate power and
authority required to (a) carry on its business as presently conducted, and (b)
enter into this Agreement, the Investor Agreement (as defined in Section 5.8),
the License Agreement (as defined in Section 5.9) and the Warrants and to
consummate the transactions contemplated hereby and thereby. The Company is
qualified to do business and is in good standing in each jurisdiction in which
the failure to so qualify would have a Material Adverse Effect. As used in
this Agreement, "Material Adverse Effect" means a material adverse effect on,
or a material adverse change in, or a group of such effects on or changes in,
the operations, financial condition, results of operations, prospects, assets
or liabilities of the Company.
3.2 Capitalization. As of the date of this Agreement the
capitalization of the Company is as follows:
(a) Preferred Stock. A total of 1,000,000
authorized shares of Preferred Stock, $0.01 par value per share
(the "Preferred Stock"), none of which are issued or outstanding.
(b) Common Stock. A total of 40,000,000
authorized shares of Common Stock, $0.0034 par value per share, of
which 20,656,746 shares are issued and outstanding as of a date within
two days prior to the date hereof, and any shares of Common Stock
which may have been issued between such date and the date hereof have
been issued solely as a result of the exercise of options, warrants or
other rights reflected in Section 3.2(c) of the Schedule of
Exceptions. All of such outstanding shares are validly issued, fully
paid and non-assessable. No such outstanding shares were issued in
violation of any preemptive right.
(c) Options, Warrants, Reserved Shares. Section
3.2(c) of the Schedule of Exceptions sets forth a summary description
of all outstanding options, warrants, rights (including conversion or
preemptive rights) or agreements for the purchase or acquisition from
the Company of any shares of its capital stock or any securities
convertible into or ultimately exchangeable or exercisable for any
shares of the securities Company's capital stock. No shares of the
Company's outstanding capital stock, or stock issuable upon exercise,
conversion or exchange of any outstanding options, warrants or rights,
or other stock issuable by the Company, are subject to any rights of
first refusal or other rights to purchase such stock (whether in favor
of the Company or any other person), pursuant to any agreement or
commitment of the Company.
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3.3 Subsidiaries . The Company does not presently own or
control, directly or indirectly, any interest in any other corporation,
partnership, trust, joint venture, association or other entity.
3.4 Due Authorization. All corporate action on the part
of the Company, its officers, directors and shareholders necessary for the
authorization, execution, delivery of, and the performance of all obligations
of the Company under, this Agreement, the Investor Agreement, the License
Agreement and the Warrants and the authorization, issuance, reservation for
issuance and delivery of the Purchased Shares and of the Warrant Shares has
been taken or will be taken prior to the Closing, and this Agreement
constitutes, and the Investor Agreement, the License Agreement and the Warrants
when executed and delivered, will constitute, valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms, except as may be limited by (a) applicable bankruptcy,
insolvency, reorganization or others laws of general application relating to or
affecting the enforcement of creditors' rights generally, (b) the effect of
rules of law governing the availability of equitable remedies and (c)
applicable law affecting the indemnification provisions of the Investors
Agreement.
3.5 Valid Issuance of Stock.
(a) The Purchased Shares, when issued, sold and
delivered in accordance with the terms of this Agreement for the
consideration provided for herein, will be duly and validly issued,
fully paid and nonassessable. The Warrant Shares have been duly and
validly reserved for issuance and, upon issuance, sale and delivery in
accordance with the terms of the Warrants for the consideration
provided for therein, will be duly and validly issued, fully paid and
nonassessable.
(b) Based in part on the representations made by
the Investor in Section 4 hereof, the Purchased Shares, the Warrants
and (assuming no change in applicable law and no unlawful distribution
of Purchased Shares or the Warrants by the Investor or other parties)
the Warrant Shares will be issued in full compliance with the
registration and prospectus delivery requirements of the Securities
Act, or in compliance with applicable exemptions therefrom, and the
registration and qualification requirements of all applicable
securities laws of the states of the United States (provided that,
with respect to the Warrant Shares, no commission or other
remuneration is paid or given, directly or indirectly, for soliciting
the issuance of the Warrant Shares upon the exercise of the Warrants).
3.6 Governmental Consents. No consent, approval, order
or authorization of, or registration, qualification, designation, declaration
or filing with, any federal, state or local governmental authority on the part
of the Company is required in connection with the consummation of the
transactions contemplated by this Agreement, except for the listing of the
Purchased Shares and the Warrant Shares with Nasdaq, the filing of such
qualifications or filings under the Securities Act and the regulations
thereunder and all applicable state securities laws as may be required in
connection with the transactions contemplated by this Agreement. All such
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qualifications and filings will, in the case of qualifications, be effective on
the Closing and will, in the case of filings, be made within the time
prescribed by law.
3.7 Non-Contravention. The execution, delivery and
performance of this Agreement, the Investor Agreement, the License Agreement
and the Warrants by the Company, and the consummation by the Company of the
transactions contemplated hereby and thereby, do not and will not (a)
contravene or conflict with the Certificate of Incorporation or Bylaws of the
Company; (b) constitute a material violation of any provision of any federal,
state, local or foreign law binding upon or applicable to the Company; or (c)
constitute a default under, give rise to any right of termination, cancellation
or acceleration of, or to a loss of any material benefit to which the Company
is entitled under, or result in the creation or imposition of any lien, claim
or encumbrance on any material assets of the Company under any material
contract to which the Company is a party or any material permit, license or
similar right relating to the Company or by which the Company may be bound or
materially affected.
3.8 Litigation. There is no action, suit, proceeding,
claim, arbitration or investigation pending or threatened that seeks to
prevent, enjoin, alter or delay the transactions contemplated by this
Agreement, the Investor Agreement, the License Agreement or the Warrants.
3.9 Compliance with Law and Charter Documents. The
Company is not in violation or default of any provisions of its Certificate of
Incorporation or Bylaws, both as amended, and except for any violations that
would not, either individually or in the aggregate, have a Material Adverse
Effect, (a) the Company has complied and is in compliance with all applicable
statutes, laws, regulations and executive orders of the United States of
America and all states, foreign countries or other governmental bodies and
agencies having jurisdiction over the Company's business or properties, (b) no
default exists under any contract or agreement to which the Company is a
party.
3.10 Title to Property and Assets. The properties and
assets the Company owns are owned by the Company free and clear of all
mortgages, deeds of trust, liens, encumbrances and security interests except
for statutory liens for the payment of current taxes that are not yet
delinquent and liens, encumbrances and security interests which arise in the
ordinary course of business and which do not affect material properties and
assets of the Company. With respect to the property and assets it leases, the
Company is in compliance with such leases in all material respects.
3.11 Intellectual Property. The Company and its
Subsidiaries own or otherwise have the right to use all patents, licenses,
trademarks, trade names, trade secrets, service marks, copyrights and all
rights with respect thereto which are material to the conduct of the Company's
business (the "Intellectual Property"). To the best of the Company's
knowledge, no third party has any ownership right in, title to, or lien on any
Intellectual Property belonging to the Company. The Company represents and
warrants that it will use reasonable business efforts to seek appropriate legal
protection of the Company's ownership of and rights in the Intellectual
Property.
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3.12 SEC Documents.
(a) The Company has furnished to the Investor
prior to the date hereof copies of its 1995 Form 10-K filed with the
Securities and Exchange Commission on June 17, 1996, and all
registration statements, reports and proxy statements filed by the
Company with the Commission on or after January 1, 1995, (such Form
10-K, and such other registration statements, reports and proxy
statements, are collectively referred to herein as the "SEC
Documents"). Each of the SEC Documents, as of the respective date
thereof, does not, and each of the registration statements, reports
and proxy statements filed by the Company with the Commission after
the date hereof and prior to the Closing will not, as of the date
thereof, contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading. The Company is not a party to any material contract,
agreement or other arrangement required to be filed as an exhibit to
the SEC Documents that is not so filed.
(b) The Company has provided the Investor with
its audited financial statements (the "Audited Financial Statements")
for the fiscal year ended December 31, 1995 and its unaudited
financial statements (the "Unaudited Financial Statements") for the
nine months ended September 30, 1996 (the "Balance Sheet Date").
Since December 31, 1995, the Company has duly filed with the
Commission all registration statements, reports and proxy statements
required to be filed by it under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and the Securities Act of 1933 (the
"Securities Act"). The audited and unaudited consolidated financial
statements of the Company included in the SEC Documents filed prior to
the date hereof fairly present, in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis the
consolidated financial position of the Company and its consolidated
subsidiaries as at the date thereof and the consolidated results of
their operations and cash flows for the periods then ended, provided,
however, that the unaudited financial statements are subject to normal
year end audit adjustments and may not include all footnote
disclosures required under GAAP and may be condensed or summary
statements.
(c) Except as and to the extent reflected or
reserved against in the Company's Audited Financial Statements
(including the notes thereto) or the Unaudited Financial Statements,
to the best knowledge of the Company, the Company has no material
liabilities (whether accrued or unaccrued, liquidated or unliquidated,
secured or unsecured, joint or several, due or to become due, vested
or unvested, executory, determined or determinable) other than: (i)
liabilities incurred in the ordinary course of business since the
Balance Sheet Date that are consistent with the Company's past
practices, (ii) liabilities with respect to agreements to which the
Investor is a party, and (iii) other liabilities that either
individually or in the aggregate would not result in a Material
Adverse Effect.
3.13 Absence of Certain Changes Since Balance Sheet Date.
Since the Balance Sheet Date, the business and operations of the Company have
been conducted in the ordinary course consistent with past practice, and there
has not been:
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(a) any declaration setting aside or payment of
any dividend or other distribution of the assets of the Company with
respect to any shares of capital stock of the Company, or any
repurchase, redemption or other acquisition by the Company or any
subsidiary of the Company of any outstanding shares of the Company's
capital stock;
(b) any damage, destruction or loss, whether or
not covered by insurance, except for such occurrences that have not
resulted, and are not expected to result, in a Material Adverse
Effect;
(c) any waiver by the Company of a valuable right
or of a material debt owed to it, except for such waivers that have
not resulted, and are not expected to result, in a Material Adverse
Effect;
(d) any material change or amendment to, or any
waiver of any material rights under, a material contract or
arrangement by which the Company or any of its assets or properties is
bound or subject, except for changes, amendments or waivers which are
expressly provided for or disclosed in this Agreement or that have not
resulted, and are not expected to result, in a Material Adverse
Effect;
(e) any change by the Company in its accounting
principles, methods or practices or in the manner it keeps its
accounting books and records, except any such change required by a
change in GAAP; and
(f) to the Company's knowledge, any other event
or condition of any character, except for such events and conditions
that have not resulted, and are not expected to result, in a Material
Adverse Effect.
3.14 Full Disclosure. The information contained in this
Agreement and the Schedule of Exceptions with respect to the assets, results of
operations, and financial condition of the Company and the transactions
contemplated by this Agreement, the Investor Agreement and the Warrants are
true and complete in all material respects and do not omit to state any
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
4. Representations, Warranties and Certain Agreements of the
Investor. The Investor hereby represents and warrants to the Company, and
agrees that:
4.1 Authorization. All corporate action on the part of
the Investor, its officers, directors and shareholders necessary for the
authorization, execution, delivery of and the performance of all obligations of
the Company under, this Agreement, the License Agreement and the Investor
Agreement has been taken or will be taken prior to the Closing. This
Agreement constitutes and, when executed and delivered, the Investor Agreement
and the License Agreement will constitute, the Investor's valid and legally
binding obligations, enforceable in accordance with the terms except as may be
limited by (a) applicable bankruptcy, insolvency, reorganization or other laws
of general application relating to or affecting the enforcement of creditors'
rights generally and (b) the effect of rules of law governing the availability
of equitable remedies. The
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Investor has full corporate power and authority to enter into this Agreement,
the License Agreement and the Investor Agreement.
4.2 Purchase for Own Account. The Purchased Shares and
the Warrants to be acquired by the Investor hereunder will be acquired for
investment for the Investor's own account, not as a nominee or agent, and not
with a view to the public resale or distribution thereof within the meaning of
the Securities Act, and the Investor has no present intention of selling,
granting any participation in, or otherwise distributing the same. The
Investor also represents that it has not been formed for the specific purpose
of acquiring the Purchased Shares and the Warrants.
4.3 Disclosure of Information. The Investor has received or
has had full access to all the information it considers necessary or
appropriate to make an informed investment decision with respect to the
Purchased Shares and the Warrants to be purchased by the Investor under this
Agreement. The Investor further has had an opportunity to ask questions and
receive answers from the Company regarding the terms and conditions of the
offering of the Purchased Shares, the Warrants and the Warrant Shares and to
obtain additional information (to the extent the Company possessed such
information or could acquire it without unreasonable effort or expense)
necessary to verify any information furnished to the Investor or to which the
Investor had access. The foregoing, however, does not in any way limit or
modify the representations and warranties made by the Company in Section 3.
4.4 Investment Experience. The Investor understands that
the acquisition of the Purchased Shares and the Warrants involves substantial
risk. The Investor has experience as an investor in securities of companies
and acknowledges that it is able to fend for itself, can bear the economic risk
of its investment in the Purchased Shares and the Warrants and has such
knowledge and experience in financial or business matters that it is capable of
evaluating the merits and risks of this investment in the Purchased Shares and
the Warrants and protecting its own interests in connection with this
investment.
4.5 Accredited Investor Status. The Investor is an
"accredited investor" within the meaning of Regulation D promulgated under the
Securities Act.
4.6 Restricted Securities. The Investor understands that
the Purchased Shares and the Warrants to be purchased by the Investor
hereunder, and any Warrant Shares to be purchased by the Investor upon exercise
of the Warrants, are characterized as "restricted securities" under the
Securities Act inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under the Securities Act
and applicable regulations thereunder such securities may be resold without
registration under the Securities Act only in certain limited circumstances.
The Investor is familiar with Rule 144 of the SEC, as presently in effect, and
understands the resale limitations imposed thereby and by the Securities Act.
The Investor understands that the Company is under no obligation to register
any of the securities sold hereunder except as provided in the Investor
Agreement.
4.7 Further Limitations on Disposition. Without in any
way limiting the representations set forth above, the Investor further agrees
not to make any disposition of all or
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any portion of the Purchased Shares, the Warrants or the Warrant Shares at any
time prior to February 25, 1997, and unless and until:
(a) there is then in effect a registration
statement under the Securities Act covering such proposed disposition
and such disposition is made in accordance with such registration
statement; or
(b) the Investor has notified the Company of the
proposed disposition and has furnished the Company with a statement of
the circumstances surrounding the proposed disposition, and the
Investor has furnished the Company, at the expense of the Investor or
its transferee, with an opinion of counsel, reasonably satisfactory to
the Company, that such disposition will not require registration of
such securities under the Securities Act.
Notwithstanding the provisions of paragraphs (a) and (b) of this Section 4.7,
no such registration statement or opinion of counsel will be required for any
transfer of any Purchased Shares, the Warrants or any Warrant Shares in
compliance with SEC Rule 144, Rule 144A or Rule 145(d), or any successor or
additional similar rule, or if such transfer otherwise is exempt, in the view
of the Company's legal counsel, from the registration requirements of the
Securities Act, provided that, in the case of any transfer that is otherwise
exempt, the transferee agrees in writing to be subject to the terms of this
Section 4 to the same extent as if the transferee were the original Investor
hereunder.
4.8 Legends. Certificates evidencing the Purchased
Shares and the Warrant Shares, when issued, will bear each of the legends set
forth below and the Warrants will bear the legends set forth in (a) and (b)
below:
(a) THE SECURITIES REPRESENTED HEREBY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE
SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE
AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT
AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR
EXEMPTION THEREFROM. TRANSFER IS FURTHER PROHIBITED UNTIL FEBRUARY
25,1997 PURSUANT TO THE PROVISIONS OF THE AGREEMENT UNDER WHICH THESE
SECURITIES WERE ISSUED. INVESTORS SHOULD BE AWARE THAT THEY MAY BE
REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE
AN OPINION OF COUNSEL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO
THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN
COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
(b) Any legends required by any applicable state
securities laws.
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The legend set forth in Section 4.8(a) hereof will be removed by the Company
from any certificate evidencing Purchased Shares or the Warrant Shares upon the
effectiveness of a registration statement under the Securities Act or upon
delivery to the Company of an opinion by counsel, reasonably satisfactory to
the Company, that such security may be freely transferred in a public sale
without such a registration statement being in effect and that such transfer
will not jeopardize the exemption or exemptions from registration pursuant to
which the Company issued the Purchased Shares, the Warrants or the Warrant
Shares.
5. Conditions to the Investor's Obligations at Closing. The
obligations of the Investor under Sections 1 and 2 of this Agreement are
subject to the fulfillment or waiver, on or before the Closing, of each of the
following conditions:
5.1 Representations and Warranties True. Each of the
representations and warranties of the Company contained in Section 3 will be
true and correct on and as of the Closing, except as set forth in the Schedule
of Exceptions, with the same effect as though such representations and
warranties had been made as of the Closing.
5.2 Performance. The Company will have performed and
complied with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Closing and will have obtained all approvals, consents and qualifications
necessary to complete the purchase and sale described herein.
5.3 Compliance Certificate. The Company will have
delivered to the Investor at the Closing a certificate signed on its behalf by
its Chief Executive Officer or Chief Financial Officer certifying that the
conditions specified in Sections 5.1 and 5.2 hereof have been fulfilled.
5.4 Securities Exemptions. The offer and sale of the
Purchased Shares and the Warrants to the Investor pursuant to this Agreement
will be exempt from the registration requirements of the Securities Act and the
registration and/or qualification requirements of all applicable state
securities laws.
5.5 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto will be reasonably satisfactory in form and
substance to the Investor and to the Investor's legal counsel and the Investor
will have received all such counterpart originals and certified or other copies
of such documents as it may reasonably request. Such documents shall include
(but not be limited to) the following:
(a) Certified Organizational Documents. A copy
of (i) the Certificate of Incorporation certified as of a recent date
by the Secretary of State of Delaware as a complete and correct copy
thereof, and (ii) the Bylaws of the Company (as amended through the
date of the Closing) certified by the Secretary of the Company as true
and correct copies thereof as of the Closing.
(b) Board Resolutions. A copy, certified by the
Secretary of the Company, of the resolutions of the Board of
Directors of the Company providing for the
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approval of this Agreement, the License Agreement and the Investor
Agreement and the issuance of the Purchased Shares of the Warrants and
the Warrant Shares and the other matters contemplated hereby.
5.6 Opinion of Company Counsel. The Investor will have
received an opinion of Company counsel, dated as of the date of the Closing,
substantially in the form attached hereto as Exhibit B.
5.7 Warrants. The Company will have issued the Warrants
to the Investor.
5.8 Investor Agreement. The Company will have executed
and delivered a counterpart of an Investor Agreement between the Investor and
the Company substantially in the form attached to this Agreement as Exhibit C
(the "Investor Agreement").
5.9 License Agreement. The Company will have executed
and delivered a counterpart of a Resale and Manufacturing License Agreement
between the Investor and the Company substantially in the form attached to this
Agreement as Exhibit D (the "License Agreement").
5.10 No Material Adverse Effect. Between the date hereof
and the Closing, there shall not have occurred any Material Adverse Effect.
6. Conditions to the Company's Obligation at Closing. The
obligations of the Company to the Investor under this Agreement are subject to
the fulfillment or waiver on or before the Closing, of each of the following
conditions:
6.1 Representations and Warranties True. The
representations and warranties of the Investor contained in Section 4 will be
true and correct on the date of the Closing with the same effect as though such
representations and warranties had been made as of the Closing.
6.2 Payment of Purchase Price. The Investor will have
delivered to the Company the full purchase price of the Purchased Shares as
specified in Section 1.1 in accordance with the provisions of Section 2.
6.3 Securities Exemptions. The offer and sale of the
Purchased Shares and the Warrants to the Investor pursuant to this Agreement
will be exempt from the registration requirements of the Securities Act and the
registration and/or qualification requirements of all applicable state
securities laws.
6.4 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto will be reasonably satisfactory in form and
substance to the Company and to the Company's legal counsel and the Company
will have received all Such counterpart originals and certified or other copies
of such documents as it may reasonably request.
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6.5 Investor Agreement. The Investor will have executed
and delivered to the Company a counterpart of the Investor Agreement.
6.6 License Agreement. The Investor will have executed
and delivered to the Company a counterpart of the License Agreement.
7. Miscellaneous.
7.1 Successors and Assigns. This Agreement may not be
assigned by either party, nor may either party delegate its duties hereunder,
without the prior written consent of the other party hereto. Subject to the
foregoing, the terms and conditions of this Agreement will inure to the benefit
of and be binding upon the respective successors and assigns of the parties.
7.2 Governing Law. This Agreement will be governed by
and construed under the internal laws of the State of Delaware as applied to
agreements among Delaware residents entered into and to be performed entirely
within Delaware, without reference to principles of conflict of laws or choice
of laws.
7.3 Counterparts. This Agreement may be executed in two
or more counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
7.4 Headings. The headings and captions used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement. All references in this Agreement to
sections, paragraphs, exhibits and schedules will, unless otherwise provided,
refer to sections and paragraphs hereof and exhibits and schedules attached
hereto, all of which exhibits and schedules are incorporated herein by this
reference.
7.5 Notices. All notices required or permitted hereunder
shall be in writing and shall be deemed effectively given (a) upon personal
delivery to the party notified, (b) three days after deposit with the United
States Post Office, by registered or certified mail, postage prepaid, return
receipt requested, (e) one day after deposit with a nationally recognized air
courier service such as DHL or Federal Express for next day delivery, or (d) on
the day of facsimile transmission, with confirmed transmission, to the
facsimile number shown below (or to such other facsimile number as the party to
be notified may indicate by ten (10) days' advance written notice to the other
party in the manner herein provided), provided that notice is also given under
clauses (a), (b) or (c) above; in any such case addressed to the party to be
notified at the address indicated below for that party, or at such other
address as that party may indicate by ten (10) days' advance written notice to
the other party in the manner herein provided.
If to the Investor: Intel Corporation
2200 Mission College Boulevard
Santa Clara, CA 95052-8114
Facsimile: (408) 765-7636
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If to the Company: MRV Communications, Inc.
8943 Fullbright Avenue
Chatsworth, CA 91311
Facsimile: (818) 407-5656
7.6 No Finder's Fees. Each party represents that it
neither is nor will be obligated for any finder's or broker's fee or commission
in connection with this transaction. The Investor will indemnify and hold
harmless the Company from any liability for any commission or compensation in
the nature of a finders' or broker's fee for which the Investor or any of its
officers, partners, employees or consultants, or representatives is responsible.
The Company will indemnify and hold harmless the Investor from any liability for
any commission or compensation in the nature of a finder's or broker's fee for
which the Company or any of its officers, employees or consultants or
representatives is responsible.
7.7 Amendments and Waivers. This Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the Company and the holders of Purchased Shares
and/or Warrant Shares representing at least a majority of the total aggregate
number of Purchased Shares and Warrant Shares then outstanding (excluding any of
such shares that have been sold to the public or pursuant to SEC Rule 144). Any
amendment or waiver effected in accordance with this Section 7.7 will be binding
upon the Investor, the Company and their respective successors and assigns.
7.8 Severability. If any provision of this Agreement is
held to be unenforceable under applicable law, such provision will be excluded
from this Agreement and the balance of the Agreement will be interpreted as if
such provision were so excluded and will be enforceable in accordance with its
terms.
7.9 Entire Agreement. This Agreement, together with all
Exhibits and schedules hereto, constitutes the entire agreement and
understanding of the parties with respect to the subject matter hereof and
supersedes any and all prior negotiations, correspondence, agreements,
understandings, duties or obligations between the parties with respect to the
subject matter hereof.
7.10 Further Assurances. From and after the date of this
Agreement, upon the request of the Investor or the Company, the Company and the
Investor will execute and deliver such instruments, documents or other writings
as may be reasonably necessary or desirable to confirm and carry out and to
effectuate fully the intent and purposes of this Agreement.
7.11 Fees, Costs and Expenses. All fees, costs and
expenses (including, without limitation, attorneys' fees and expenses) incurred
by either party hereto in connection with the preparation, negotiation and
execution of this Agreement, the Investor Agreement and the Warrants, and the
consummation of the transactions contemplated hereby and thereby, shall be the
sole and exclusive responsibility of such party.
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7.12 Confidentiality, Press Releases. The Company shall
not use the Investor's name or refer to the Investor directly or indirectly in
connection with the Investor's relationship with the Company in any
advertisement, news release or professional or trade publication, or in any
other manner, unless otherwise required by law or with the Investor's prior
written consent. The parties acknowledge that the Company may be required to
disclose in a press release and/or a registration statement certain information
relating to the transactions contemplated by this Agreement following
consummation hereof. Notwithstanding the foregoing, the provisions of this
Section 7.12 shall apply to any such disclosure and the Company shall provide
the Investor a reasonably adequate opportunity to review and comment on such
disclosure and shall not make any such disclosure without the Investor's prior
written consent. The parties agree that at no time will there be any press
release or other public statement issued by either party relating to this
Agreement or the transactions contemplated hereby unless agreed to in advance by
both parties in writing.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
MRV COMMUNICATIONS, INC. INTEL CORPORATION
By: [SIG] By:
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Name: [SIG] Name:
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Title: President & CEO Title:
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
By: By: /s/ DIANE R. LABRADOR
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Name: Name: Diane R. Labrador
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Title: Title: Assistant Treasurer
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