EXHIBIT 10.27
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
OPERATING AGREEMENT
This Agreement is entered into as of October 19, 1998 (the
"Effective Date") among Spyglass, Inc., a Delaware corporation having
a principal place of business at ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Spyglass"), Spyglass DSIC, Inc., a Delaware
corporation having a principal place of business at ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Subsidiary"), and General
Instrument Corporation, a Delaware corporation having a place of
business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("GI").
Spyglass, the Subsidiary and GI are hereinafter sometimes referred
to individually as a "Party" and collectively as the "Parties."
WHEREAS, contemporaneously with the execution of this Agreement,
the Company and the Purchaser are entering into a Digital Software
Integration Center Sourcing Agreement (the "Sourcing Agreement");
WHEREAS, contemporaneously with the execution of this Agreement,
the Company has organized the Subsidiary for the purpose of operating
and managing a Digital Software Integration Center in accordance with
the terms of the Sourcing Agreement:
WHEREAS, Spyglass, the Subsidiary and GI desire to enter into
this Agreement for the purpose of establishing certain rights and
obligations with respect to the Subsidiary;
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Spyglass, the Subsidiary and GI, each intending to be
legally bound, hereby agree as follows:
1. Organization of Subsidiary.
1.1 Spyglass organized the Subsidiary as a Delaware
corporation on October 14, 1998. The Subsidiary has engaged in no
activities to date other than routine matters incident to its
organization.
1.2 The Certificate of Incorporation and By-laws of the
Subsidiary are attached hereto as Exhibit A and Exhibit B,
respectively. The Board of Directors of the Subsidiary consists of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇.
1.3 Promptly following the execution of this Agreement,
(a) the Subsidiary shall issue and sell, and Spyglass shall purchase,
900 shares of the common stock, $.01 par value per share (the "Common
Stock"), of the Subsidiary for a purchase price of *** per share, and
1
Confidential Materials omitted and filed separately with
the Securities and Exchange Commission. Asterisks denote omissions.
(b) the Subsidiary shall issue and sell, and GI shall
purchase, 100 shares of Common Stock of the Subsidiary for a purchase
price of *** per share.
1.4 Each of Spyglass and GI represents as follows with
respect to its purchase of Common Stock of the Subsidiary:
(a) It is purchasing such shares for its own account
for investment only, and not with a view to, or for sale in
connection with, any distribution of such shares in violation of the
Securities Act of 1933 (the "Securities Act"), or any rule or
regulation under the Securities Act.
(b) It understands that (i) such shares have not been
registered under the Securities Act and are "restricted securities"
within the meaning of Rule 144 under the Securities Act and (ii) such
shares cannot be sold, transferred or otherwise disposed of unless
they are subsequently registered under the Securities Act or an
exemption from registration is then available.
(c) Legends substantially in the following form will
be placed on the certificate representing such shares:
"The shares represented by this certificate have
not been registered under the Securities Act of
1933, as amended, and may not be sold,
transferred or otherwise disposed of in the
absence of an effective registration statement
under such Act or an opinion of counsel
satisfactory to the corporation to the effect
that such registration is not required."
"The shares represented by this certificate are
subject to restrictions on transfer and a
purchase option set forth in an agreement between
Spyglass, Inc. and certain other parties dated
October 19, 1998, a copy of which is available
upon request to the Secretary of Spyglass, Inc."
2. Operation of Subsidiary.
2.1 The Subsidiary shall not engage in any activities,
shall not acquire any assets, shall not incur any liabilities and
shall not hire any personnel except for the specific purpose of
performing services for GI under the Sourcing Agreement and otherwise
in accordance with the terms of the Sourcing Agreement.
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
2
2.2 Without limiting the restrictions set forth in
Section 2.1, the Subsidiary shall not, without the prior written
consent of both Spyglass and GI, take any of the following actions:
(a) amend its Certificate of Incorporation or By-
laws;
(b) issue any shares of capital stock, or any other
securities exercisable for, convertible into or exchangeable for any
shares of capital stock of the Subsidiary;
(c) declare or pay any dividends or distributions on
its outstanding Common Stock or repurchase or reacquire any
outstanding shares of its Common Stock;
(d) merge with or into or consolidate with any other
entity, or sell or otherwise dispose of all or substantially all of
its properties or assets to any other entity; or
(e) voluntarily liquidate or dissolve.
2.3 The Subsidiary will operate its business in compliance
with all laws, rules and regulations applicable to the Subsidiary and
its business.
3. Purchase Option. GI shall have an option (the "Purchase
Option") to purchase, for cash, all (but not less than all) of the
shares of Common Stock of the Subsidiary owned by Spyglass, upon the
terms and conditions set forth in this Section 3.
3.1 Term of the Purchase Option.
(a) The Purchase Option shall become exercisable upon
the earliest to occur of the following dates: (i) ***, provided that
if GI elects to extend, pursuant to the terms of the Sourcing
Agreement, the expiration of the Sourcing Agreement from October 31,
2001 to October 31, 2002, the Purchase Option shall instead become
exercisable on ***; (ii) the date on which the Sourcing Agreement is
terminated by GI pursuant to Section 11.3 of the Sourcing Agreement;
and (iii) the date on which a Spyglass Change in Control (as defined
below) occurs. If the Purchase Option becomes exercisable pursuant
to clause (i) of this Section 3.1(a), the Purchase Option shall
continue in effect until April 30, 2001 or (if GI elects to extend,
pursuant to the terms of the Sourcing Agreement, the expiration of
the Sourcing Agreement from October 31, 2001 to October 31, 2002)
April 30, 2002. If the Purchase Option becomes exercisable pursuant
to clauses (ii) or (iii) of this Section 3.1(a), the Purchase Option
shall continue in effect through and including the date that is six
months after the date on which the Purchase Option became
exercisable. The period during which the Purchase Option is
exercisable shall be referred to in this Agreement as the "Option
Term."
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Confidential Materials omitted and filed separately
with the Securities and Exchange Commission. Asterisks denote
omissions.
(b) For purposes of this Agreement, a "Spyglass
Change in Control" shall mean the consummation of (i) a merger,
consolidation, reorganization, recapitalization or tender offer
involving Spyglass, immediately following which the individuals and
entities who were the beneficial owners of the Common Stock of
Spyglass immediately prior to such transaction beneficially own,
directly or indirectly, less than 60% of the combined voting power of
the then-outstanding securities entitled to vote generally in the
election of directors of Spyglass or the resulting or acquiring
corporation in such transaction, (ii) the sale of all or
substantially all of the assets of Spyglass, or (iii) the acquisition
by any of the companies listed on Exhibit C attached hereto of
beneficial ownership (within the meaning of Section 13(d) of the
Securities Exchange Act of 1934) of shares of common stock of
Spyglass representing 20% or more of the outstanding common stock of
Spyglass.
3.2 Purchase Price. The purchase price to be paid by GI
to Spyglass for the shares of Common Stock of the Subsidiary owned by
Spyglass (the "Purchase Price") shall be *** of the fair market value
of the Subsidiary as of the date on which GI delivers the Exercise
Notice (as defined in Section 3.3(a) below) to Spyglass (the "Fair
Market Value"), to be determined as follows:
(a) Upon the delivery by GI of an Exercise Notice to
Spyglass, GI and Spyglass shall commence discussions regarding, and
shall use good faith efforts to agree upon, the Fair Market Value.
If GI and Spyglass reach such an agreement, they shall execute a
written instrument setting forth the agreed-upon Fair Market Value.
(b) If GI and Spyglass do not agree upon the Fair
Market Value within 30 days after the date (the "Exercise Date") on
which GI delivers the Exercise Notice to Spyglass, then:
(i) The Fair Market Value shall be the average
of the estimates, by each of three investment banking firms selected
in accordance with this Section 3.2(b) (the "Investment Banks"), of
the Fair Market Value.
(ii) GI and Spyglass shall each select, within 45
days of the Exercise Date, one Investment Bank, and shall deliver
notice to each other of the Investment Bank so selected. Neither GI
nor Spyglass may select an Investment Bank after such Party has
received notice that such Investment Bank has been selected by the
other Party. Spyglass and GI shall cause the Investment Banks
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selected by them to together select a third Investment Bank no later
than 30 days following the Exercise Date.
(iii) Promptly following the selection of the
third Investment Bank, GI and Spyglass shall jointly engage the three
Investment Banks to make a written estimate of the fair market value
of the Subsidiary as of the Exercise Date (without applying any
discount due to a lack of a public trading market for the Common
Stock of the Subsidiary), and to deliver to each of GI and Spyglass,
as soon as practicable, but in any event no later than 75 days
following the Exercise Date, a written valuation report stating the
estimated fair market value of the Subsidiary and setting forth in
reasonable detail the methodology by which such estimate was
determined. The valuation estimates by each Investment Bank shall
take into account such factors as such Investment Bank, in its
reasonable discretion, deems relevant, which factors may include the
valuations of comparable privately or publicly held companies and the
estimated value of the equity of the Subsidiary in a private equity
financing, an initial public offering, and/or an acquisition of the
entire company. The valuation estimates prepared by the Investment
Banks shall be binding upon both GI and Spyglass and neither GI nor
Spyglass may dispute the fair market value estimates or the
methodologies used in arriving at such estimates.
(iv) GI shall pay the fees and expenses of the
Investment Bank selected by it; Spyglass shall pay the fees and
expenses of the Investment Bank selected by it; and GI and Spyglass
shall each pay one-half of the fees and expenses of the third
Investment Bank.
3.3 Exercise Procedure.
(a) To exercise the Purchase Option, GI must deliver
a written notice to Spyglass (the "Exercise Notice") which states
GI's election to exercise the Purchase Option and specifies a closing
date for the exercise of the Purchase Option (the "Closing Date"),
which date shall be no earlier than 60 days and no later than 90 days
after the Exercise Date; provided that if the Purchase Option becomes
exercisable pursuant to clause (i) of Section 3.1(a), the Closing
Date specified shall be the expiration date of the Sourcing
Agreement. The Exercise Notice must be delivered by GI to Spyglass
during the Option Term (although the Closing Date may occur after the
expiration of the Option Term, subject to the time limits in the
preceding sentence). If GI does not deliver an Exercise Notice to
Spyglass prior to the expiration of the Option Term, the Purchase
Option shall expire. GI shall be under no obligation to exercise the
Purchase Option. GI's delivery of an Exercise Notice shall be deemed
an irrevocable commitment to purchase the shares of Common Stock of
the Subsidiary owned by Spyglass, subject to the terms and conditions
set forth in this Section 3.
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(b) On the Closing Date, subject to compliance with
all applicable laws and regulations (including without limitation the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976):
(i) Spyglass shall deliver to GI: (A) one or
more stock certificates representing the shares of Common Stock of
the Subsidiary owned by Spyglass, duly endorsed in blank or
accompanied by duly executed stock powers; (B) a certificate of the
Secretary of Spyglass certifying that Spyglass is the record and
beneficial owner of such shares of Common Stock, and that such shares
are not subject to any lien, pledge, security interest or other
encumbrance; and (C) a certificate of the Secretary of State of the
State of Delaware certifying as to the legal existence and good
standing of both the Subsidiary and Spyglass; and
(ii) GI shall: (A) pay to Spyglass the
amount of the Purchase Price, by a wire transfer of immediately
available funds to an account designated by Spyglass; and (B) deliver
to Spyglass a certificate of the Secretary of State of the State of
Delaware certifying as to the legal existence and good standing of
GI.
(c) If on the scheduled Closing Date the consummation
of the purchase and sale of the shares of Common Stock of the
Subsidiary owned by Spyglass cannot take place because the Purchase
Price has not yet been determined or because a legal requirement for
the consummation of such purchase and sale has not yet been
satisfied, the scheduled Closing Date shall be deferred until a
mutually agreeable later date. If such purchase and sale has not
been consummated by the date 120 days following the Exercise Date
(or, if the Purchase Option became exercisable pursuant to
clause (i) of Section 3.1(a), by the date 30 days following the
scheduled Closing Date), then either GI or Spyglass shall have the
right to cancel such pending purchase and sale; provided that neither
GI nor Spyglass may cancel such pending purchase and sale if the
failure to consummate such purchase and sale results primarily from a
breach by such Party of any provision contained in this Agreement or
a failure by such Party to use good faith efforts to effect the
consummation of such purchase and sale.
3.4 Restrictions on Transfer.
(a) Until such time as the Purchase Option has
expired unexercised, Spyglass shall not sell, transfer or otherwise
dispose of, and shall not pledge or otherwise encumber, any of the
shares of Common Stock of the Subsidiary owned by Spyglass, and no
such pledge or encumbrance currently exists. Notwithstanding the
foregoing sentence, Spyglass may transfer its shares of Common Stock
of the Subsidiary to a wholly-owned subsidiary of Spyglass, provided
such subsidiary delivers a written notice to GI agreeing to be bound
6
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
by the terms and conditions of this Agreement with respect to such
shares of the Subsidiary.
(b) Until such time as the Purchase Option has
expired unexercised, GI shall not sell, transfer or otherwise dispose
of, and shall not pledge or otherwise encumber, any of the shares of
Common Stock of the Subsidiary owned by GI, and no such pledge or
encumbrance currently exists. Notwithstanding the foregoing
sentence, GI may transfer its shares of Common Stock of the
Subsidiary to a wholly-owned subsidiary of GI, provided such
subsidiary delivers a written notice to Spyglass agreeing to be bound
by the terms and conditions of this Agreement with respect to such
shares of the Subsidiary.
3.5 Restrictions Regarding Employees. From and after the
Exercise Date, Spyglass shall not hire any employees of the
Subsidiary, reassign their employment responsibilities such that they
are performing services for Spyglass (rather than the Subsidiary) or
terminate their employment except for valid reasons.
4. Management Services.
4.1 Spyglass shall provide to the Subsidiary, upon the
request of the Subsidiary, the following administrative and support
services: accounting (including processing of accounts receivable
and accounts payable), payroll processing, employee benefits
administration, and such other administrative and support services as
Spyglass and the Subsidiaries shall mutually agree upon. In
addition, Spyglass shall provide executive management services and
advice to the Subsidiary to assist it in performing its obligations
under the Sourcing Agreement.
4.2 As consideration for the provision of services by
Spyglass to the Subsidiary under Section 4.1, the Subsidiary shall
pay ***, of the Subsidiary for each fiscal year of the Subsidiary
(beginning with the fiscal year ending September 30, 1999), as
determined in accordance with generally accepted accounting
principles and Spyglass' accounting principles and practices as
reflected in its audited financial statements filed with the
Securities and Exchange Commission. Such fees shall be payable by
the Subsidiary to Spyglass on a quarterly basis (with any necessary
adjustments made based upon actual financial results for the fiscal
year), or in accordance with such other schedule as may be agreed
upon by Spyglass and the Subsidiary. Spyglass shall be liable for
and shall pay all federal, state, local and foreign taxes incurred by
the Subsidiary as a result of its existence and operations.
7
4.3 Spyglass shall use good faith efforts in providing
services to the Subsidiary under this Section 4, and shall use the
same degree of care in providing such services as it utilizes in
providing such services for its own operations. In no event shall
Spyglass be liable for any error or omission in providing such
services, or defect in the services provided, except for any error,
omission, or defect attributable to the gross negligence or wilful
misconduct of Spyglass. Spyglass makes no representations,
warranties or guaranties, express or implied (including without
limitation any warranty of merchantability or fitness for a
particular purpose) with respect to the services provided to the
Subsidiary under this Section 4, and shall not be liable for any lost
profits or special, incidental or consequential damages caused by any
delay in providing or any failure to provide such services.
4.4 The provisions of Sections 4.1 and 4.2 shall terminate
upon the expiration or termination of the Sourcing Agreement.
5. Representations of Spyglass. Spyglass hereby represents
and warrants to GI as follows:
5.1 Organization and Standing. Spyglass is a corporation
duly organized, validly existing and in good standing under the laws
of the State of Delaware.
5.2 Authorization of Transaction. Spyglass has all
requisite power and authority to execute and deliver this Agreement
and to perform its obligations hereunder. The execution and delivery
of this Agreement by Spyglass and the consummation of the
transactions contemplated hereby by Spyglass have been duly and
validly authorized by all necessary corporate action on the part of
Spyglass. This Agreement has been duly and validly executed and
delivered by Spyglass and constitutes a valid and binding obligation
of Spyglass, enforceable against it in accordance with its terms.
5.3 Noncontravention. Neither the execution and delivery
of this Agreement by Spyglass, nor the consummation by Spyglass of
the transactions contemplated hereby, (a) conflicts with or violates
any provision of the Certificate of Incorporation or By-laws of
Spyglass, (b) requires on the part of Spyglass any filing with, or
permit, authorization, consent or approval of, any governmental
entity, (c) conflicts with, results in breach of, constitutes a
default under, or requires any notice, consent or waiver under, any
contract, agreement or other instrument to which Spyglass is a party
or by which it is bound (other than any consent or waiver which has
already been obtained), or (d) violates any order, writ, injunction,
decree, statute, rule or regulation applicable to Spyglass.
6. Representations of the Subsidiary. The Subsidiary hereby
represents and warrants to GI as follows:
8
6.1 Organization and Standing. The Subsidiary is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware.
6.2 Capitalization. The authorized capital stock of the
Subsidiary consists of 1,000 shares of Common Stock, $.01 par value
per share, none of which are issued or outstanding. All of the
shares of Common Stock of the Subsidiary to be issued pursuant to
this Agreement will be, when so issued, duly authorized and validly
issued and fully paid and nonassessable.
6.3 Authorization of Transaction. The Subsidiary has all
requisite power and authority to execute and deliver this Agreement
and to perform its obligations hereunder. The execution and delivery
of this Agreement by the Subsidiary and the consummation of the
transactions contemplated hereby by the Subsidiary have been duly and
validly authorized by all necessary corporate action on the part of
the Subsidiary. This Agreement has been duly and validly executed
and delivered by the Subsidiary and constitutes a valid and binding
obligation of the Subsidiary, enforceable against it in accordance
with its terms.
6.4 Noncontravention. Neither the execution and delivery
of this Agreement by the Subsidiary, nor the consummation by the
Subsidiary of the transactions contemplated hereby, (a) conflicts
with or violates any provision of the Certificate of Incorporation or
By-laws of the Subsidiary, (b) requires on the part of the Subsidiary
any filing with, or permit, authorization, consent or approval of,
any governmental entity, (c) conflicts with, results in breach of,
constitutes a default under, or requires any notice, consent or
waiver under, any contract, agreement or other instrument to which
the Subsidiary is a party or by which it is bound (other than any
consent or waiver which has already been obtained), or (d) violates
any order, writ, injunction, decree, statute, rule or regulation
applicable to the Subsidiary.
7. Representations of GI. GI hereby represents and warrants
to Spyglass and the Subsidiary as follows:
7.1 Organization and Standing. GI is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware.
7.2 Authorization of Transaction. GI has all requisite
power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. The execution and delivery of
this Agreement by GI and the consummation of the transactions
contemplated hereby by GI have been duly and validly authorized by
all necessary corporate action on the part of GI. This Agreement has
been duly and validly executed and delivered by GI and constitutes a
9
valid and binding obligation of GI, enforceable against it in
accordance with its terms.
7.3 Noncontravention. Neither the execution and delivery
of this Agreement by GI, nor the consummation by GI of the
transactions contemplated hereby, (a) conflicts with or violates any
provision of the Certificate of Incorporation or By-laws of GI, (b)
requires on the part of GI any filing with, or permit, authorization,
consent or approval of, any governmental entity, (c) conflicts with,
results in breach of, constitutes a default under, or requires any
notice, consent or waiver under, any contract, agreement or other
instrument to which GI is a party or by which it is bound (other than
any consent or waiver which has already been obtained), or (d)
violates any order, writ, injunction, decree, statute, rule or
regulation applicable to GI.
8. Miscellaneous.
8.1 Successors and Assigns. No Party may assign this
Agreement or any of its rights or obligations hereunder without the
prior written consent of the other Parties, except (i) to the limited
extent permitted by Section 3.4 or (ii) as part of the sale or
transfer of all or substantially all of the business, stock or assets
of Spyglass or GI. This Agreement, and the rights and obligations of
the Parties hereunder, shall be binding upon their successors and
permitted assigns.
8.2 Confidentiality. GI agrees that it will keep
confidential and will not disclose or divulge any confidential,
proprietary or secret information which GI may obtain from Spyglass
or the Subsidiary pursuant to this Agreement, unless such information
is known, or until such information becomes known, to the public;
provided, however, that GI may disclose such information (i) to its
attorneys, accountants, consultants and other professionals to the
extent necessary to obtain their services in connection with its
investment in Spyglass or the Subsidiary, or (ii) to any Affiliate of
GI; subject to the agreement of such party to keep such information
confidential as set forth herein. Spyglass and the Subsidiary each
agree that they will keep confidential and will not disclose or
divulge any confidential, proprietary or secret information which
they may obtain from GI pursuant to this Agreement, unless such
information is known, or until such information becomes known, to the
public; provided, however, that Spyglass and the Subsidiary may
disclose such information (i) to their attorneys, accountants,
consultants and other professionals to the extent necessary to obtain
their services in connection with this Agreement, or (ii) to any
Affiliate of Spyglass or the Subsidiary; subject to the agreement of
such party to keep such information confidential as set forth herein.
8.3 Survival of Representations, Warranties and Covenants.
All representations and warranties contained herein shall survive
10
the execution and delivery of this Agreement and continue for a
period of two years thereafter. All covenants shall survive
indefinitely, except as limited in accordance with their terms.
8.4 Notices. All notices, requests, consents, and other
communications under this Agreement shall be in writing and in the
English language, and shall be delivered by any lawful means, to the
following address:
If to Spyglass or the Subsidiary, at Spyglass, Inc., ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Chief
Financial Officer, or at such other address or addresses as may have
been furnished in writing by Spyglass to GI; or
If to GI, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attn: Executive Vice President, Business Development, with a copy to
the Senior Vice President and General Counsel, or at such other
address or addresses as may have been furnished in writing by GI to
Spyglass.
Any such notices, requests, consents and other communications
shall be deemed delivered upon receipt by the addressee.
8.5 Entire Agreement. This Agreement embodies the entire
agreement and understanding among the Parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and
understandings relating to such subject matter.
8.6 Amendments and Waivers. Except as otherwise expressly
set forth in this Agreement, any term of 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), with the written consent of
Spyglass, the Subsidiary and GI. No waivers of or exceptions to any
term, condition or provision of this Agreement, in any one or more
instances, shall be deemed to be, or construed as, a further or
continuing waiver of any such term, condition or provision.
8.7 Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an
original, but all of which shall be one and the same document.
8.8 Severability. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement.
8.9 Costs and Expenses. Except as specifically provided
otherwise in this Agreement, all costs and expenses (including
without limitation fees and expenses of attorneys, brokers, agents or
finders) incurred by any Party in connection with this Agreement and
11
the transactions contemplated hereby shall be paid by the party
incurring such costs and expenses.
8.10 Titles. The section headings of this Agreement are
for convenience of reference only and shall not be considered in
construing this Agreement.
8.11 Cooperation. Each Party shall, at the request and
expense of the other Party, at any time and from time to time
following the execution of this Agreement, execute and deliver to the
other Party such further instruments and take such further
administrative and ministerial actions as may be reasonably necessary
or appropriate to carry out the purposes and intent of this
Agreement.
8.12 No Third Party Beneficiaries. Nothing expressed or
implied in this Agreement or shall be construed to confer upon any
person or entity, other than the Parties and their respective
successors and permitted assigns, any rights or remedies under or in
connection with this Agreement.
8.13 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Parties have caused this Agreement
to be executed by their duly authorized representatives as of the
Effective Date.
SPYGLASS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(print name and title)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, E.V.P.
▇▇▇.▇▇▇.
SPYGLASS DSIC, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, E.V.P.
(print name and title)
GENERAL INSTRUMENT CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
(print name and title)
Exhibit C
***
