EXHIBIT 10.15
COMPROMISE/SETTLEMENT AGREEMENT
This Compromise/Settlement Agreement ("Agreement") is made by and among the
---------
following parties (hereinafter referred to as "the parties"): Airspan Networks,
Inc., a corporation organized under the laws of the State of Washington
(hereinafter referred to as "Airspan US"), and Airspan Communications Limited, a
----------
corporation organized under the laws of England and Wales (hereinafter referred
to as "Airspan UK" and, together with "Airspan US", hereinafter collectively
----------
referred to as "Airspan"), on the one hand, and Alcatel USA, Inc., a corporation
-------
organized under the laws of the State of Delaware (hereinafter referred to as
"Alcatel USA"), and Alcatel USA Sourcing, L.P., a limited partnership organized
-----------
under the laws of the State of Texas (hereinafter referred to as "Alcatel
-------
Sourcing" and, together with "Alcatel USA", hereinafter collectively referred to
--------
as "Alcatel"), on the other hand.
-------
WHEREAS, in connection with the formation of Airspan, the parties entered
into an Amended and Restated Asset Purchase Agreement (as amended to the date
hereof, hereinafter referred to as the "Asset Purchase Agreement"), dated as of
------------------------
January 22, 1998, by and between Airspan US ( the successor-in-interest to
Airspan Communications Corporation) and Alcatel USA (then known as DSC
Communications Corporation);
WHEREAS, in connection with the Asset Purchase Agreement, (a) Airspan has
asserted certain claims against Alcatel more particularly described in those
certain letters, dated August 17, 1998, September 2, 1998 and January 6, 1999
from Airspan UK to Alcatel USA, that certain letter, dated May 10, 1999, from
Alcatel USA to Airspan UK, that certain letter, dated July 21, 1999, from
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C. to ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, that certain letter, dated
September 20, 1999, from ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C.,
and that certain letter, dated December 2, 1999, from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
P.C. to ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (the "Airspan Claims") and (b) Alcatel has asserted
certain claims against Airspan more particularly described in such letters (the
"Alcatel Claims");
WHEREAS, the parties hereto desire to settle the Airspan Claims, the
Alcatel Claims and certain other obligations and liabilities addressed below;
WHEREAS, the parties intend that the full terms and conditions of such
compromise and settlement be set forth in this Agreement; and
WHEREAS, the parties, without admitting liability of one to the other for
any amount of damages, but acting in the interest of settling all of the above-
referenced claims, liabilities and obligations, enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein, the parties agree as follows:
1. Upon the releases contemplated by paragraph 2 of this Agreement
becoming effective, Airspan, on behalf of itself and each of its affiliates,
hereby releases and forever discharges Alcatel and its assigns, predecessors,
successors, shareholders, directors, officers, employees, agents, subsidiaries
and legal representatives from any and all claims and causes of action of
whatever kind or nature, whether known or unknown, existing as of the date
hereof, arising out of or attributable to the Airspan Claims. Airspan agrees to
pay to Alcatel Sourcing the aggregate sum of $9,250,000.00 (United States
Dollars) (hereinafter referred to as the "Settlement Amount"). Six million and
-----------------
00/100 Dollars ($6,000,000.00) of the Settlement Amount (less a credit of
$513,959.77 for funds already paid) will be paid to Alcatel Sourcing by wire
transfer of immediately available funds on the next business day following
delivery to Airspan UK of a copy of this Agreement executed by Alcatel. The
remaining portion of the Settlement Amount ($3,250,000.00) will be paid to
Alcatel Sourcing by wire transfer of immediately available funds on May 1, 2001.
All payments otherwise due pursuant to that certain Promissory Note, dated
January 30, 1998, made payable by Airspan UK to Alcatel USA (then known as DSC
Telecom L.P.), in the original principal amount of $17,000,000.00 (reduced by
$1,984,000.00 on September 2, 1998 but made effective January 30, 1998) (the
"Note"), after the date hereof but before May 1, 2001 will be deferred until May
----
1, 2001. In the event that Airspan fails to pay the Settlement Amount in
accordance with the terms and conditions of this Agreement, all amounts paid
pursuant to this Agreement shall be applied to the Note so as to reduce the
principal balance under the Note as of February 1, 2001. The resulting principal
amount shall then be amortized per the original terms of the Note, and the Note
shall continue in full force and effect in accordance with such terms, except
that (i) from February 1, 2001, interest on the remaining outstanding principal
balance (after application of previously paid amounts) of the Note will accrue
at a rate per annum equal to the lesser of 12% or the Maximum Legal Rate (as
defined in the Note), and (ii) any and all payments deferred prior to such
default and not previously paid through the applications of funds contemplated
by this sentence shall be due and payable on the first day of the calendar month
following the date of such default. Airspan agrees to take whatever action is
necessary to effectuate the intent of the foregoing, including, without
limitation, executing any and all documents and/or instruments reasonably
requested by Alcatel for such purpose.
2. In consideration of the releases contemplated by paragraph 1 of this
Agreement and upon payment in full of the Settlement Amount, Alcatel, on behalf
of itself and each of its affiliates, hereby releases and forever discharges
Airspan and its assigns, predecessors, successors, shareholders, directors,
officers, employees, agents, subsidiaries and legal representatives from any and
all claims and causes of action of whatever kind or nature, whether known or
unknown, existing as of the date hereof, arising out of or attributable to (i)
the
Alcatel Claims, (ii) the Note, (iii) that certain Security Agreement
(hereinafter referred to as the "Security Agreement"), dated January 30, 1998,
------------------
by and between Airspan US and Alcatel Sourcing, (iv) that certain Debenture
(hereinafter referred to as the "Debenture"), dated January 30, 1998, by and
---------
between Airspan UK and Alcatel Sourcing and (v) that certain Guaranty
(hereinafter referred to as the "Guaranty"), dated January 30, 1998, by and
--------
between Airspan US and Alcatel Sourcing. Without limiting the generality of the
foregoing, upon payment in full of the Settlement Amount in accordance with this
Agreement, (i) the Note will be deemed to be paid in full and canceled, (ii) the
Security Agreement, Debenture and Guaranty will be deemed to be terminated and
released and (iii) all liens, claims and encumbrances created by the Note,
Security Agreement, Debenture and/or Guaranty will be deemed to be terminated
and released. Alcatel agrees to take whatever action is necessary to effectuate
the intent of the foregoing, including, without limitation, executing any and
all documents and/or instruments reasonably requested by Airspan for such
purpose. Alcatel represents and warrants to Airspan that (i) it is the sole
record and beneficial owner of all interests in, to and under the Note, Security
Agreement, Debenture and Guaranty, (ii) it has not assigned any rights or
interests with respect to the Note, Security Agreement, Debenture or Guaranty
and is not obligated to do so and (iii) it has full right power and authority to
undertake and perform its obligations contemplated by this Agreement.
3. Airspan will have no liability for the costs and attorneys' fees of
Alcatel associated with the potential claims and causes of action addressed by
this Agreement. Alcatel will have no liability for the costs and attorneys' fees
of Airspan associated with the potential claims and causes of action addressed
by this Agreement.
4. The parties hereto each represent and warrant that they have read this
Agreement and fully understand it to be a compromise, settlement and release of
claims as provided herein. Each of the parties hereto represents and warrants
that they are legally competent and, to the extent necessary, have been
authorized by their respective Boards of Directors or other lawful authority to
execute this Agreement and that they do so of their own free will and accord
without reliance on any representations not expressly set forth herein.
5. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective predecessors, successors, assigns, heirs,
executors, administrators, directors, officers, employees, agents, shareholders,
subsidiaries and legal representatives.
6. This Agreement contains the entire agreement among the parties and
supersedes any and all prior agreements, arrangements or understandings between
the parties relating to the subject matter of this Agreement. No prior or
contemporaneous statements, promises, or inducements exist. No party is relying
upon any promise, representation, conduct or consideration not expressly set
forth in this Agreement. This Agreement may not be orally amended or terminated.
7. This Agreement may be executed in a number of identical counterparts,
each of which will be deemed an original for all purposes. This Agreement will
be considered fully executed when all parties have executed an identical
counterpart, notwithstanding that all signatures may not appear on the same
counterpart.
8. Airspan warrants and represents that it has not assigned any portion
of any claim or cause of action that would be released in accordance with
the terms of this Agreement had it not been assigned, and hereby agrees to
indemnify Alcatel against and hold harmless Alcatel from any and all claims,
demands, or causes of action, including necessary costs and attorneys fees
arising out of or attributable to the breach of this Agreement by Airspan.
9. Alcatel warrants and represents that it has not assigned any portion
of any claim or cause of action which would be released in accordance with this
Agreement had it not been assigned, and hereby agrees to indemnify Airspan
against and hold harmless Airspan from any and all claims, demands, or causes of
action, including necessary costs and attorneys' fees arising out of or
attributable to the breach of this Agreement by Alcatel.
10. The parties agree that this Agreement is entered into in compromise,
resolution and settlement of disputed claims and that such compromise,
resolution and settlement shall not be taken as an admission of liability by any
party, but rather, such liability is expressly denied; nor shall this Agreement
be admissible in any proceeding or cause of action as an admission of liability
against any of the parties.
11. This Agreement is for the sole benefit of the parties and the parties
specifically identified herein. Except as expressly set forth herein, this
Agreement is not intended to benefit any third parties.
12. THIS AGREEMENT AND MATTERS CONNECTED WITH THE PERFORMANCE
THEREOF SHALL BE CONSTRUED, INTERPRETED, APPLIED AND GOVERNED IN ALL
RESPECTS IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE
(WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT
WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN
THE STATE OF DELAWARE. ANY SUIT OR ACTION UNDER THIS AGREEMENT
COMMENCED BY EITHER PARTY SHALL BE BROUGHT BEFORE A COURT OF COMPETENT
JURISDICTION IN THE STATE OF DELAWARE AND EACH PARTY HEREBY CONSENTS
TO THE JURISDICTION AND VENUE OF SUCH COURT UNDER SUCH CIRCUMSTANCES.
13. Words of any gender used in this Agreement shall be held and construed
to include any other gender, and words in the singular number shall be deemed to
include the plural, unless the context otherwise requires.
14. The representations, warranties and covenants set forth herein will
survive the consummation of the transactions contemplated hereby.
IN WITNESS WHEREOF, the parties have entered into this Agreement on the
_______ day of February, 2001.
AIRSPAN
-------
AIRSPAN NETWORKS INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
-------------------
Title: Acting. CFO
-------------------
AIRSPAN COMMUNICATIONS LIMITED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
------------------
Title: Vice President
------------------
ALCATEL
-------
ALCATEL USA, INC.
By: ________________________________
Name: ________________________
Title: ________________________
ALCATEL USA SOURCING, L.P.
By: Alcatel USA GP, Inc., General Partner
By: ________________________________
Name: ________________________
Title: ________________________
