EXHIBIT 2.3
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (this
"Amendment") is made and entered into as of the 21st day of September, 1995 by
and among GLENTEL INC., a corporation continued under the laws of Canada and
formerly named "Glenayre Electronics Ltd." ("Glentel"), GLENAYRE TECHNOLOGIES,
INC., a Delaware corporation formerly named "N-W Group, Inc." ("GTI"), GLENAYRE
ELECTRONICS, INC., a Colorado corporation formerly named "Nu-West, Inc."
("GEI"), GLENAYRE MANUFACTURING LTD., a corporation continued under the laws of
Canada and formerly named "N-W Group Canada Inc." ("GM") and GLENAYRE R&D, INC.,
a corporation continued under the laws of Canada ("R&D") (GTI, GEI, GM and R&D
are collectively referred to herein as "Glenayre").
Statement of Purpose
Glentel and Glenayre entered into a Purchase and Sale Agreement dated
as of July 16, 1992, as amended by Amendment to Purchase and Sale Agreement
dated as of November 10, 1992 (the Purchase and Sale Agreement, as so amended,
is referred to herein as the "Purchase Agreement"). Article 8 of the Purchase
Agreement provides certain indemnification obligations of Glentel to Glenayre.
The parties believe that it is desirable and in their mutual best interests to
amend, as hereinafter set forth, certain provisions of Section 8.3 of the
Purchase Agreement pertaining to specified litigation matters.
NOW, THEREFORE, in consideration of the foregoing Statement of Purpose
and the mutual covenants and agreements contained herein, the parties do hereby
agree as follows:
Section 1. Indemnification for Certain IP Actions.
(a) On or Before November 10, 1995. The provisions of this Section 1
shall apply only to the indemnification obligations of Glentel after November
10, 1995 with respect to Special IP Actions. Nothing in this Section 1 shall in
any way modify, limit or restrict the indemnification obligations of Glentel
with respect to Special IP Actions on or before November 10, 1995, such
indemnification obligations to continue in all respects to be subject to the
provisions of Section 8.3 of the Purchase Agreement without regard to this
Section 1.
(b) After November 10, 1995. With respect to the Special IP Actions,
Glentel shall be liable for, shall pay or cause to be paid, and shall indemnify
and hold Glenayre and the Acquired Companies and in each case their respective
shareholders, directors, officers, employees, agents and Affiliates, harmless
from and against 50% of any and all Losses in any way relating to or arising out
of the Special IP Actions realized after November 10, 1995 and on or before
November 10, 1998; provided, however, that in no event shall Glentel's portion
of such Losses exceed CDN $3,000,000.
(c) Other Provisions. The provisions of Section 8.3(a), (c), (e) and
(f) of the Purchase Agreement shall be applicable to all indemnification
obligations of Glentel arising under this Section 1. The obligations of Glentel
to provide letters of credit as security for its obligations under Article 8 of
the Purchase Agreement shall continue in effect without regard to this Amendment
and this Amendment shall not itself effect any extension of the periods during
which Glentel is required to provide the Letter of Credit under the Letter of
Credit Agreement dated as of November 10, 1992 between Glentel and GTI.
(d) Definitions. For purposes of this Section 1, the following terms
shall have the following meanings:
"Special IP Actions" means any of the actions described on Schedule 1
to this Amendment.
"Loss" shall have the meaning set forth in Schedule 1 to the Purchase
Agreement.
"Affiliates" shall have the meaning set forth in Schedule 1 to the
Purchase Agreement.
"Acquired Companies" shall have the meaning set forth in Schedule 1 to
the Purchase Agreement.
Section 2. Non-Applicability of Certain Limitations. The parties
acknowledge and agree that the limitations on indemnifications set forth in
Section 8.5 of the Purchase Agreement do not apply in any manner whatsoever to
(i) any indemnification obligations of Glentel under Section 8.3 of the Purchase
Agreement or (ii) any indemnification obligations of Glentel under Section 1 of
this Amendment.
Section 3. Release. Glenayre hereby releases Glentel from any and all
liability for indemnification under the Purchase Agreement with respect to the
following claim: claim for infringement of U.S. Patent No. 5,239,671 of
PageMart, Inc., and any and all civil actions and other proceedings of any type
whatsoever concerning such patent, including but not limited to PageMart, Inc.
v. Mobile Media, United States District Court for the Northern District of
Texas, Dallas Division, Action No. 3-96CV1048-P.
Section 4. Certain Nondisclosed IP Actions. The parties confirm that
the following claims are IP Actions which were not Disclosed IP Actions: (i)
claim for infringement by ▇▇▇▇▇▇▇ ▇▇▇▇ of U.S. Patent No. 5,151,929, and any and
all civil actions and other proceedings of any kind whatsoever relating to such
patent, (ii) claim for infringement by ▇▇▇▇▇▇▇▇ Electronics Ltd. of Australian
Patent No. 588943 and Russian Patent Application No. 4742501.09, and any and all
civil actions and other proceedings of any type whatsoever relating to such
patents and (iii) claim for infringement by ▇▇▇▇▇ Research, Inc. of U.S. Patent
Nos. 4,270,024, 4,559,416, 4,747,125, 4,800,583 and 4,982,420, and any and all
civil actions and other proceedings of any type whatsoever relating to such
patents, including but not limited to Octel Communications Corporation et al. ▇.
▇▇▇▇▇ Research, Inc. et al., United States District
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Court for the Northern District of California, San ▇▇▇▇ Division, Action Nos. C
92 20217 RMW (PVT), C 93 20287 JW (EAI), C 93 20288 RMW (EAI). The parties agree
that each such claim is, therefore, subject to the provisions of Section 8.3(d)
of the Purchase Agreement. The terms "IP Action" and "Disclosed IP Action" shall
have the meanings set forth in the Purchase Agreement.
Section 5. Effect. Except as amended by this Amendment, the Purchase
Agreement shall continue in full force and effect to the extent provided
therein.
IN WITNESS WHEREOF, the parties have executed this Amendment effective
as of the day and year first above written.
GLENTEL INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chairman/CEO
GLENAYRE TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice Chairman
GLENAYRE ELECTRONICS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman
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GLENAYRE MANUFACTURING LTD.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman
GLENAYRE R&D, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman
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SCHEDULE 1
TO
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
▇. ▇▇▇▇▇▇▇▇ PATENT CLAIM
Claim for infringement of the following patents: U.S. Patent No.
4,809,297 and Canadian Patent No. 1,233,059, and any and all civil actions and
other proceedings of any type whatsoever relating to those parents, including
but not limited to ▇▇▇▇▇▇▇▇ Electronics Ltd. v. Glenayre Electronics Ltd.,
Celcom Electronics, Ltd., Glenayre Communications Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and
▇▇▇▇▇ ▇▇▇▇▇▇▇, Queen's Bench of Alberta, Judicial District of Calgary, Action
No. 9001-14858, Glenayre Electronics Ltd. ▇. ▇▇▇▇▇▇▇▇ Electronics Ltd., Federal
Court of Canada, Calgary, Action No. T-618-91, Glenayre Electronics Ltd. ▇.
▇▇▇▇▇▇▇▇ Electronics Ltd., United States District Court for the District of
Columbia, Civil Action No. 90-1255, and proposed re- examination of U.S. Patent
No. 4,809,297 before the United States Patent and Trademark Office.
B. Gilbarco Patent Claim
Claim for infringement of U.S. Patent No. 4,625,081, and any and all
civil actions and other proceedings of any kind whatsoever relating to such
patent, including but not limited to Gilbarco Inc. v. Octel Communications
Corporation, United States District Court for the Northern District of
California, San ▇▇▇▇ Division, Action No. C-94 20780 JW.
▇. ▇▇▇▇▇ PATENT CLAIM
Claim for infringement of the following patents: U.S. Patent Nos.
4,112,384, 4,150,255, 4,152,547, 4,328,396, 4,338,494, 4,439,635, 4,539,436,
4,692,817, 4,719,647 and 4,856,050, and any and all civil actions and other
proceedings of any type whatsoever relating to such patents, including but not
limited to Octel Communications Corporation et al. ▇. ▇▇▇▇▇ Research, Inc., et
al., United States District Court for the Northern District of California, San
▇▇▇▇ Division, Action Nos. C 92 20217 RMW (PVT), C 93 20287JW (EAI), C 93
20288RMW (EAI).
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