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Exhibit 10.8.3
SPECIAL RIGHTS AGREEMENT
This Special Rights Agreement (the "Agreement") is made as of December
19, 1997, by and among Xxxxx Corporation (the "Company") and Italtel, SpA
("Italtel") and shall be effective for all purposes as of the date of the
Initial Closing under the Series D Preferred Stock Purchase Agreement of even
date herewith (the "Effective Date").
The parties hereto agree as follows:
1. Definitions. As used herein, the following terms shall have the
following meanings:
(a) "Change of Control" means the purchase by a single Competitor
of Italtel of more than fifty percent (50%) of the Voting Stock of the Company.
(b) "Competitor of Italtel" means the companies listed on Exhibit
A hereto as well as any other company whom the Company and Italtel, after
consultation, good faith negotiation and mutual agreement, agree may be deemed a
competitor of Italtel.
(c) "Fair Market Value" means, the highest price per
Share-equivalent of the Voting Stock paid by a Competitor of Italtel in
connection with a Change of Control.
(d) "Shares" means the Series D Preferred Stock of the Company
purchased by Italtel pursuant to the Series D Preferred Stock Purchase Agreement
of even date herewith and any Common Stock of the Company issued or issuable in
respect of such Series D Preferred Stock or other securities issued or issuable
with respect to such Series D Preferred Stock upon any stock split, stock
dividend, recapitalization.
(e) "Voting Stock" means any share of the capital stock of the
Company generally entitled to vote on matters put before the shareholders of the
Company at any regular or special meeting of shareholders.
2. Repurchase of Shares. If, during the Term of this Agreement, the
Company enters into an agreement that results in a Change of Control, as soon as
practicable after entering into such agreement, the Company shall provide
Italtel with a notice identifying the date of such transaction and the
Competitor of Italtel involved. Upon notice from Italtel of its decision to
exercise its rights under this Section 2, the Company (or a third-party
designated by the Company) will, as soon as practicable after receipt of such
notice, purchase from Italtel and Italtel will sell to the Company, any Shares
then held by Italtel at the Fair Market Value of the Shares as of the date that
the Company entered into the agreement that resulted in such Change of Control.
3. Closing of Repurchase.
(a) The closing of the purchase and sale of the Shares hereunder
(the "Closing") shall be held at the principal office of the Company as soon as
practicable after the
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receipt of notice by the Company of the election by Italtel to exercise its
rights under Section 2 (the "Closing Date").
(b) At the Closing, which shall take place at the offices of
Venture Law Group, 0000 Xxxx Xxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx, Italtel will
deliver to the Company (or its designee) a certificate or certificates
representing the Shares to be purchased by the Company against payment of the
Fair Market Value therefor.
(c) Upon payment of the Purchase Price for such Shares, the
Company (or its designee) shall become the legal and beneficial owner of the
Shares being repurchased and all rights and interest therein or related thereto,
and the Company (or its designee) shall have the right to transfer to its own
name the number of Shares being repurchased without further action by Italtel.
4. Board Visitation Rights. During the Term of this Agreement, and so
long as Italtel owns more than three percent (3%) of the Voting Stock of the
Company, one (1) member of the senior management of Italtel (or such other
adequate designee of Italtel), will be entitled to attend full meetings of the
Company's Board of Directors. The Company may exclude such representative from
time to time from all or portions of these meetings, or omit to provide Italtel
with information related to such meetings, if: (a) such action is necessary to
preserve the attorney-client privilege, (b) such action is necessary to fulfill
the Company's obligations with respect to confidential or proprietary
information of third parties, (c) such meeting or information involves matters
concerning the Company's relationship or prospective relationship with Italtel
or competitors to Italtel, (d) such meeting or information involves matters
which represent a conflict of interest for Xxxxx or Italtel, or (e) such meeting
or information represents a situation where a director would customarily not
participate in the meeting or be provided such information. Any information
communicated during, or related to, such a meeting shall be deemed to be the
Confidential Information of the Company and subject to the terms of the
Non-Disclosure Agreement between the parties dated __________________.
5. Termination. This Agreement, and all rights hereunder, shall
terminate upon the consummation of the sale of the Company's securities pursuant
to a registration statement filed by the Company under the Securities Act of
1933, as amended, in connection with the firm commitment underwritten offering
of its securities to the general public.
6. Miscellaneous.
(a) Notices. Any notice, demand or request required or permitted
to be given under this Agreement shall be in writing and shall be deemed
sufficient when delivered personally by a recognized international courier
(e.g., Federal Express or DHL) or sent by confirmed facsimile, and addressed, if
to the Company, at its principal place of business, attention the President, and
if to Italtel, at their address as shown on the stock records of the Company.
Such notice shall be effective upon receipt by the organization being notified.
(b) Successors and Assigns. The rights and benefits of this
Agreement shall inure to the benefit of, and be enforceable by the Company's and
Italtel's successors and assigns.
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(c) California Law. This Agreement shall be subject to and
governed by the laws of the State of California, as it applies to contracts
entered into and to be performed by California residents, whether or not any
party may become a resident of a different state.
(d) Severability. The provisions of this Agreement are divisible
and severable, and if any provision of this Agreement, or the application of
such provision to any person or circumstance, shall be held invalid or
unenforceable, the remainder of this Agreement, or the application of such
provision to persons or circumstances as to which it is held invalid, shall be
valid as if the void or unenforceable provision were not included in this
Agreement.
(e) Amendment. This Agreement is subject to amendment only with
the unanimous written consent of all parties hereto.
(f) Entire Agreement. This Agreement constitutes the entire
understanding between the parties with respect to the subject matter hereof, and
supersedes all prior negotiations and agreements, whether written or oral, with
respect to the subject matter of this Agreement.
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The parties hereto have executed this Agreement as of December 19, 1997
and it shall be effective for all purposes as of the Effective Date.
XXXXX CORPORATION
By:_____________________________________
Xxxxxx Xxx-Xxxxxx, President & CEO
ITALTEL SPA
By:_____________________________________
Title:__________________________________
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EXHIBIT A
COMPETITORS OF ITALTEL
Alcatel
Bosch
Nokia
Ericsson
Motorola
Nera
NEC
Fujitsu
Lucent
Nortel
DMC
P-Com
SIAE
SAT
California Microwave
Xxxxxx
Cisco Systems, Inc.
Newbridge Networks
Pirelli
TEC Marconi
