Exhibit 2.1
 *** TEXT
OMITTED AND FILED SEPARATELY CONFIDENTIAL
TREATMENT REQUESTED    ASSET
SALE AGREEMENT  Dated
as of  January
11, 2011  by
and among  GENBAND
US LLC,  GENBAND
CANADA ULC,  GENBAND
IP COMPANY  and  PERFTECH
(PTI) CANADA CORP.
   80


---



ASSET SALE AGREEMENT TABLE OF CONTENTS Page Article 1.RECITALS.................................................................................................................................................. 83 Article
2.Definitions........................................................................................................................................... 84 Article
3.Purchase
and Sale of Assets.................................................................................................. 86 Section 3.01Purchase
of Assets........................................................................................................................... 86 Section 3.02Assumption
of Liabilities.............................................................................................................. 86 Section 3.03Acknowledgement
of License Rights..................................................................................... 87 Section 3.04Purchase
Price................................................................................................................................... 87 Section 3.05Taxes...................................................................................................................................................... 87 Section 3.06Closing.................................................................................................................................................. 88 Article
4.Representations and
Warranties..................................................................................... 90 Section 4.01Representations
and Warranties of the GENBAND Parties......................................... 90 Section 4.02Representations
and Warranties of PT................................................................................. 92 Section 4.03Brokers
or Finders.......................................................................................................................... 93 Section 4.04Effect
of Representations and Warranties........................................................................ 93 Section 4.05Disclaimer
of Warranties............................................................................................................ 93 Article
5.LIABILITIES
AND INDEMNITIES.................................................................................................... 94 Section 5.01GENBAND
Parties Indemnification.......................................................................................... 94 Section 5.02PT
Indemnification.......................................................................................................................... 94 Section 5.03Indemnification
Procedures....................................................................................................... 94 Article
6.LIMITATIONS
AND SURVIVAL......................................................................................................... 95 Section 6.01Limitations
and Caps on Losses and Indemnity................................................................. 95 Section 6.02Survival............................................................................................................................................... 96 Section 6.03Sole
Remedy....................................................................................................................................... 96 Article
7.COVENANTS............................................................................................................................................. 96 Section 7.01Employee
Matters........................................................................................................................... 96 Section 7.02Further
Assurances........................................................................................................................ 97 Section 7.03Assistance
with Software Licenses......................................................................................... 97 Section 7.04Use
of “GENBAND” Name............................................................................................................... 97 Article
8.Miscellaneous.................................................................................................................................. 97 Section 8.01Expenses................................................................................................................................................ 97 Section 8.02Governing
Law.................................................................................................................................. 97 Section 8.03Notices.................................................................................................................................................. 98 Section 8.04Binding
Nature of Agreement; Assignment......................................................................... 98 Section 8.05Entire
Agreement............................................................................................................................ 99 Section 8.06Relationship
of Parties................................................................................................................. 99 Section 8.07Headings............................................................................................................................................... 99 Section 8.08Interpretation
of Agreement.................................................................................................... 99 Section 8.09References........................................................................................................................................... 99 Section 8.10Attorneys’
Fees and Costs........................................................................................................ 100 Section 8.11Waiver
of Trial by Jury; Jurisdiction................................................................................... 100 Section 8.12Modifications,
Amendments or Waivers............................................................................. 100 Section 8.13Nonwaiver......................................................................................................................................... 100 Section 8.14Severability..................................................................................................................................... 100 Section 8.15Publicity............................................................................................................................................ 101 Section 8.16Counterparts................................................................................................................................... 101
  81


---



ANNEX I                                           NORTEL
IPLA  SCHEDULE 3.02                               PRE-CLOSING
WARRANTY OBLIGATIONS SCHEDULE 3.05(b)                          TAX
ALLOCATION SCHEDULE 3.05(c)                          TAX
BASIS SCHEDULE 4.01(e)(1)                      INTELLECTUAL
PROPERTY DISCLOSURES SCHEDULE 4.01(g)                          PHYSICAL
ASSET EXCEPTIONS  EXHIBIT A                                        PHYSICAL
ASSETS EXHIBIT B                                        FORM
OF BILL OF SALE EXHIBIT C                                        FORM
OF IPLA EXHIBIT D                                        FORM
OF PATENT ASSIGNMENT EXHIBIT E                                        TRANSFERRED
PATENT EXHIBIT F                                        EMPLOYEE
OFFER LETTERS     * Exhibits and schedules to this Agreement are not being
filed in reliance on Regulation S-K Item 601(b)(2).  The Registrant agrees to
furnish supplementally a copy of an omitted exhibit or schedule to the
Commission upon request.
   82


---



ASSET SALE AGREEMENT  This Asset Sale
Agreement (this “Agreement”)is made and entered
into as of January 11, 2011 (the “Effective Date”) by and among GENBAND
US LLC, a Delaware limited liability company (“GENBAND US LLC”),
GENBAND Canada ULC, a Nova Scotia unlimited liability company (“GENBAND
Canada”), GENBAND IP Company, a Cayman Islands exempted company (“GENBAND
IP Company” and, together with GENBAND US LLC, and GENBAND Canada, the
“GENBAND Parties”) on the one hand, andPERFTECH (PTI)
CANADA CORP., a corporation organized under the laws of Ontario
(“PT”), on the other hand.  Each party hereto, a “Party”
and collectively, the “Parties.”  Certain capitalized terms used
herein shall have the meanings given to them inArticle 2. Article
1.RECITALS WHEREAS, on
May 28, 2010, the GENBAND Parties (and their Affiliates) acquired certain
assets comprising the Carrier VoIP and Application Solutions business (the “CVAS
Business”) from Nortel Networks Inc. and its affiliates (collectively,
“Nortel”) in connection with Nortel’s Chapter 11 bankruptcy
proceedings; WHEREAS, in
connection therewith, the GENBAND Parties (and their Affiliates)acquired ownership of all Nortel software and intellectual property
used exclusively in connection with the CVAS Business, and received a
non-exclusive license to all other Nortel software and intellectual property
used in connection with the CVAS Business (such acquired and licensed software
and intellectual property collectively, the “CVAS IP”); WHEREAS, theGENBAND Parties’ acquisition of the assets comprising the CVAS
Business included the hardware, software and intellectual property and physical
assets necessary to use, manufacture, distribute and support the Signaling
Gateway Product Line (as defined below); WHEREAS, the GENBAND Parties desire to
sell, transfer and assign to PT, and PT has agreed to purchase and accept from
the GENBAND Parties, certain intellectual property, hardware and other physical
assets used in connection with the Signaling Gateway Product Line,which
assets are more particularly described inExhibits AandE; and WHEREAS,contemporaneous with PT’s purchase of the Transferred Assets (as
defined below) and pursuant to the IPLA (as defined below), PT will receive a
license to the CVAS IP used in connection with the Signaling Gateway Product
Line that is not otherwise transferred to PT hereunder; NOW, THEREFORE,in consideration of these premises and the
respective representations, warranties, covenants and agreements set forth
below, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereto agree as
follows:
  83


---



Article
2.Definitions “Affiliate”
 
 in
  respect of a Person, any other Person or group of Persons acting in concert,
  directly or indirectly, that controls, is controlled by or under common
  control with the first mentioned Person, and for the purposes of this
  definition “control” means the possession, directly or
  indirectly, by such Person or group of Persons acting in concert of the power
  to direct or cause the direction of the management and policies of the first
  mentioned Person, whether through the ownership of voting securities or
  otherwise.“Bill
  of Sale”
 
 the
  agreement, the form of which is attached hereto asExhibit B, to be
  entered into upon the Closing, pursuant to which title to the Physical Assets
  is transferred to PT.“Business
  Day”
 
 any
  day other than a Saturday, a Sunday, or a day in which State of Texas offices
  are authorized or obligated by law or executive order to be closed.“Closing”
 
 the
  consummation of the transactions described in this Agreement, to occur on the
  Closing Date.“Effective
  Time”
 
 12:01
  a.m. Central Time on January 11, 2011.“GENBAND
  Signaling Gateway IP”
 
 has
  the meaning ascribed thereto in the IPLA.“GENBAND’s
  Knowledge”
 
 the
  actual knowledge, without investigation, of[***];provided,
  however, that GENBAND’s Knowledge shall be deemed to include the actual
  knowledge of such individuals as a result of the acquisition of the CVAS
  Business by GENBAND US LLC (including any due diligence activities undertaken
  therewith).“Intellectual
  Property”
 
 has
  the meaning ascribed thereto in the IPLA.“IPLA”
 
 the
  agreement between PT, GENBAND US LLC and GENBAND IP Company, the form of
  which is attached hereto asExhibit C, to be entered into upon the
  Closing whereby PT shall receive a license to the CVAS IP (other than the
  Transferred Patent) used in connection with the Signaling Gateway Product
  Line.“Licensed
  Signaling Gateway IP”
 
 has
  the meaning ascribed thereto in the IPLA.“Legal Proceeding”
 
 means
  any judicial, administrative or arbitral action, suit, proceeding (public or
  private), litigation, investigation, complaint, claim or governmental
  proceeding.“Lien”
 
 any
  lien, pledge, mortgage, deed of trust, security interest, attachment, levy,
  hypothecation, encumbrance, title restriction or retention, claim, easement,
  servitude or any other restriction, security limitation or limitation of any
  kind.“Loss”
  or “Losses”
 
 any
  and all costs, losses, liabilities, actions, demands, obligations (including
  corrective and remedial obligations), penalties, interest, damages and
  expenses, including reasonable legal fees, expert fees and litigation
  expenses, but excluding any consequential damages, lost profits or punitive
  damages, suffered, incurred or claimed by a Party. Such Loss or Losses shall
  be calculated to be net of any realizable tax benefits or insurance proceeds
  received by a Party in connection with the Loss or Losses.“Nortel
  IPLA”
 
 that
  Intellectual Property License Agreement, dated May 28 2010, by and among
  Nortel Networks Limited, Nortel Networks Inc., the EMEA Sellers (as defined
  on Exhibit I thereto), the Joint Administrators (as defined therein) and the
  Joint Israeli Administrators (as defined therein), on the one hand, and
  GENBAND US LLC and GENBAND IP Company on the other hand.  A copy of the
  Nortel IPLA is attached hereto asAnnex I.“Patent
  Assignment”
 
 the
  agreement, the form of which is attached hereto asExhibit D, to be
  entered into upon the Closing, pursuant to which GENBAND US LLC transfers and
  assigns all of its rights, title and interest in the Transferred Patent to
  PT.“Person”
 
 includes
  an individual, a partnership (limited or general), a corporation, a limited
  liability company, a trust, a joint venture, an unincorporated organization,
  a union, a government or any department or agency thereof and the heirs,
  executors, administrators or other legal representatives of an individual.“Physical
  Assets”
 
 the
  GENBAND Parties-owned equipment, inventory and other tangible personal
  property used in connection with the Signaling Gateway Product Line, all of
  which are specifically identified inExhibit A.“Product
  Licenses”
 
 the
  intellectual property rights granted by the applicable GENBAND Parties to PT
  pursuant to the licenses and partial assignments under Article 2 of the IPLA.
  84


---



“PT’s
  Knowledge”
 
 the
  actual knowledge, without investigation, of[***]of PT.“Signaling
  Gateway IP”
 
 has
  the meaning ascribed thereto in the IPLA.“Signaling
  Gateway Product Line”
 
 has
  the meaning ascribed thereto in the IPLA.“Transferred
  Assets”
 
 the
  Physical Assets and the Transferred Patent.“Transferred
  Employees”
 
 those
  employees identified on the offer letters attached asExhibit Fwho
  accept the offer of employment made by PT pursuant toSection 7.01.“Transferred
  Patent”
 
 the
  patent expressly identified inExhibit E, including all provisionals,
  divisions, reexaminations, continuations and continuations-in-part, and all
  reissues and extensions thereof.“Transaction
  Documents”
 
 this
  Agreement, the Bill of Sale, the Patent Assignment and the IPLA.
 Article
3.Purchase
and Sale of Assets On the terms and
subject to the conditions of this Agreement, and in reliance upon the
representations and warranties of the GENBAND Parties and PT contained in this
Agreement: Section 3.01Purchase of Assets. At the Closing and
subject to the terms and conditions of this Agreement, the GENBAND  Parties
shall sell, transfer, assign, convey and deliver to PT, and PT shall purchase,
acquire, take assignment and delivery from the GENBAND Parties, all of the
right, title and interest of the GENBAND Parties in and to the Transferred
Assets. Section 3.02Assumption of Liabilities. At the Closing, PT
shall accept and assume all obligations and liabilities of the GENBAND Parties
(i) for performance or non-performance with respect to the Transferred Assets
that first become performable or otherwise arise or accrue from and after the
Effective Time, (ii) relating to the Transferred Employees arising or accruing
from and after the Effective Time and all obligations assumed by PT pursuant toSection 7.01, (iii) all software warranty obligations associated with
the Signaling Gateway Product Line that arise on or after the Effective Time,
and (iv) all pre-Closing software warranty obligations associated with the
Signaling Gateway Product Line cases that are set forth onSchedule 3.02(collectively, the “Assumed Obligations”).  Except for such
obligations and liabilities, PT is not assuming any of the GENBAND Parties’
liabilities or obligations, whether related to or in any way associatedwith the Transferred Assets or otherwise, arising prior to
or after the Effective Time, including, without limitation, hardware warranty
obligations associated with the Transferred Assets or Signaling Gateway Product
Line.
  85


---



Section 3.03Acknowledgement of License Rights. PT hereby expressly
acknowledges and agrees that the Transferred Patent is transferred and assigned
to PT subject to certain license rights retained by Nortel pursuant to the
Nortel IPLA, including without limitation Section 2.06 therein. Section 3.04Purchase Price. In consideration for
the Transferred Assets and the Product Licenses, at the Closing, PT shall pay
the GENBAND Parties the aggregate amount of USD$5,000,000, with (i)
USD$4,000,000 to be paid by PT at Closing (the “Initial Payment”),
and (ii) the remaining USD$1,000,000 to be paid by PT no later than the first
anniversary of the Closing Date (collectively, the “Purchase Price”). Section 3.05Taxes. (a)PT shall be liable for and shall pay any and all federal, provincial,
state, municipal and other sales taxes, value added taxes, GST, UST, HST,
transfer taxes, duties, registration fees or other like charges (collectively,
together with any interest, penalties, fees, additions to tax or other
additional amounts imposed thereon, the “Sales Taxes”) properly payable upon or in connection with the
conveyance or transfer of the Transferred Assets or granting of the Product
Licenses.  To the extent that any such Sales Taxes are incurred by any GENBAND
Party, such GENBAND Party shall invoice PT for such Sales Taxes (and shall
provide PT with such supporting documentation that PT reasonably requests), and
PT shall pay such invoices within 30 days of its receipt thereof.  For the
avoidance of doubt, PT shall be liable in respect of any Sales Taxes as
provided in thisSection 3.05without regard to the date upon which any
Transferred Assets are removed from the premises of a GENBAND Party.  PT shall
indemnify the GENBAND Parties for any and all amounts (including penalties and
interest) for which any GENBAND Party may become liable as a result of any
failure by PT to pay any such Sales Taxes.  The Parties agree to take all
commercially reasonable steps to minimize the Sales Taxes that may be payable
on the transactions contemplated by this Agreement and the other Transaction
Documents. (b)The Purchase Price (plus the Assumed Obligations to the extent properly
taken into account under the Internal Revenue Code (the “Code”), shall be
allocated among the Assets for Tax purposes, as such allocation is set forth inSchedule 3.05(b),attached hereto. (c)The Parties agree that, for purposes of the payment of Sales Taxes
pursuant to paragraph (a) above, the net book value shall serve as the cost
basis of those Transferred Assets physically located in Canada, as such net
book value is set forth onSchedule 3.05(c).
  86


---



(d)The GENBAND Parties and PT shall cooperate in timely filing all tax
returns as may be required in connection with the payment of Sales Taxes.  The
GENBAND Parties and PT shall, as appropriate, use commercially reasonable
efforts to execute and deliver all instruments and certificates reasonably
necessary to enable the other to comply with any filing requirements and laws
relating to any such Sales Taxes. Section 3.06Closing. (a)Closing Location and Time. Subject to the
satisfaction of the conditions set forth inSection 3.06(b), the Closing
shall occur at the offices of Baker Botts LLP, located at 2001 Ross Avenue,
Dallas, Texas, or such other location as is agreed by the Parties, on January
11, 2011, or, if the conditions to the obligations of the parties to consummate
the transactions contemplated by this Agreement set forth inSection 3.06(b)are not satisfied or waived on such date (other than any conditions to be
satisfied through the making of payments or the delivery of documents at the
Closing, but subject to satisfaction of those conditions), as soon as
practicable after the satisfaction or waiver of such conditions, or at such
other time and date as the parties may agree (the “Closing Date”). (b)Conditions Precedent to Each Party’s Obligations. The respective obligations of each Party to consummate the
transactions contemplated by this Agreement shall be subject to the fulfillment
by the other Party at or prior to the Closing Date of the following conditions
(any or all of which may be waived by the non-performing Party in whole or in
part to the extent permitted by applicable law):  (1)        four employees of GENBAND Canada shall have
accepted offers of employment with PT;  (2)        the payment of the Initial Payment pursuant toSection
3.04(which payment may be made simultaneous with the Closing);  (3)        the Parties shall have agreed upon the final
terms of one or more Master Purchase and Sale Agreements covering PT products
and services relating to the Transferred Assets; and  (4)        each Party shall have performed, in all material
respects, its respective covenants and agreements contained in this Agreement
required to be performed on or prior to the Closing Date. (c)Frustration of Closing Conditions. Neither the GENBAND Parties nor PT may rely on the failure
of any condition set forth inSection 3.06(b)if such failure was caused
by such Party’s failure to use its reasonable best efforts to comply with any
provision of this Agreement.
  87


---



(d)Closing Activities. Subject to the
terms and conditions hereof, on the Closing Date: (1)       The
GENBAND Parties shall deliver to PT: (A)         the Bill of Sale
duly executed by the GENBAND Parties; (B)         the Patent
Assignment duly executed by GENBAND US LLC; (C)         the IPLA duly
executed by GENBAND US LLC, GENBAND IP Company and GENBAND Ireland Limited; and (D)         such other
documents, including the Master Purchase and Sale Agreement referenced in
paragraph (b) above, reasonably required by PT or its counsel in order to more
fully consummate the transactions contemplated by the Agreement. (2)        PT
shall deliver to the GENBAND Parties: (A)         payment by wire
transfer of immediately available funds to an account designated by the GENBAND
Parties in the amount of the Initial Payment; (B)         the Patent
Assignment duly executed by PT; (C)         the IPLA duly
executed by PT; and (D)         such other
documents, including the Master Purchase and Sale Agreement referenced in
paragraph (b) above, reasonably required by the GENBAND Parties or their
counsel in order to more fully consummate the transactions contemplated by the
Agreement. (e)Physical Deliveries. PT shall effect the
transfer of the Physical Assets from the applicable GENBAND locations to a
PT-directed location within 90 days after the Closing Date.  GENBAND shall
reimburse PT for one-half of the out-of-pocket expenses reasonably incurred by
PT in transferring the Physical Assets to PT-directed locations; provided that
(i) PT shall use commercially reasonable efforts to minimize such expenses and
(ii) PT shall provide such supporting documentation as GENBAND reasonably
requests to confirm such expenses. (f)Excluded Assets. It is expressly
understood and agreed that only the Transferred Assets are being conveyed to PT
pursuant to this Agreement.  Nothing herein shall be deemed to include as part
of the sale, and it is expressly provided that the GENBAND Parties shall
retain, all other of its assets of any kind or type related, in whole or in
part, to any business conducted by any GENBAND Party.
  88


---



Article 4.Representations and
Warranties. Section 4.01Representations and Warranties of the GENBAND Parties. Each of the GENBAND
Parties, jointly and severally, represents and warrants to PT as follows: (a)Organization, Standing and Power. Each GENBAND Party
is a legal entity duly organized, validly existing and in good standing under
the laws of the jurisdiction in which it is organized. Each GENBAND Party has
the requisite power and authority to own, lease or otherwise hold and operate
its assets and to carry on its business as it is now being conducted. (b)Authority. Each GENBAND Party
has full power to carry out the transactions provided for in this Agreement,
and this Agreement is valid, binding and enforceable against each GENBAND Party
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization and similar laws affecting creditors
generally and by the availability of equitable remedies. The execution,
delivery and performance of this Agreement by each GENBAND Party, the
consummation by each GENBAND Party of the transactions contemplated hereby and
the compliance by each GENBAND Party with the provisions of this Agreement have
been duly authorized by all necessary corporate or limited liability company
action on the part of each GENBAND Party, and no other corporate or limited
liability company action or proceeding on the part of any GENBAND Party or any
of its stockholders or members is necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. Upon the execution and
delivery by the applicable GENBAND Party of the Transaction Documents to which
it is a party, and assuming the due authorization, execution and delivery by PT
of the same, each such Transaction Document shall constitute the legal, valid
and binding obligations of the applicable GENBAND Parties, enforceable in
accordance with its terms.  Each GENBAND Party has the right, power and authority
to execute and deliver this Agreement and the other Transaction Documents and
to perform its respective obligations under this Agreement and the other
Transaction Documents.  Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby nor compliance by
the GENBAND Parties with any of the provisions hereof will: (1)        Conflict
with or result in a breach of any provision of the applicable GENBAND Party’s
organizing documents; (2)        As
of the Closing Date, result in a material default under any of the terms,
conditions or provisions of any note, license, agreement or other instrument or
obligation to which it is a party, or by which it or any of its properties or
assets may be bound; or (3)        Violate
any order, writ, injunction, decree, statute, rule or regulation applicable to
the GENBAND Parties or the Transferred Assets.  No consent or approval by any
governmental authority is required in connection with the execution and
delivery by the GENBAND Parties of this Agreement or theconsummation
by the GENBAND Parties of the transactions contemplated hereby.
  89


---



(c)Legal Proceedings and Compliance
with Law. There are no Legal
Proceedings pending against any GENBAND Party or, to GENBAND’s Knowledge,
threatened in writing against any GENBAND Party, that in any case question the
validity or legality of any action taken or to be taken by a GENBAND Party in
connection herewith or under any Transaction Document, or which seek to enjoin
or obtain monetary damages in respect of, the consummation of the transactions
contemplated hereby or thereby.  GENBAND has conducted its business related to
the Signaling Gateway Product Line in compliance with all laws, except for any
non-compliance that would not, individually or in the aggregate, have a
material adverse effect on GENBAND’s ability to consummate the transactions
contemplated hereby. (d)Title; Grant of Rights. The Physical Assets
are beneficially owned by one or more of the GENBAND Parties, and such GENBAND
Parties have good and marketable title thereto, are in possession of the same,
in each case free and clear of all Liens as of the Closing Date.  The
applicable GENBAND Parties have sufficient rights to grant the Product Licenses
pursuant to the IPLA. (e)Intellectual Property. (1)        To
GENBAND’s Knowledge and except as set forth inSchedule 4.01(e)(1), the
Product Licenses granted to PT under the IPLA together with the Transferred
Patent cover all the material Intellectual Property that, up to the date
hereof, is used by any GENBAND Party in connection with the use, manufacture,
distribution or support of the Signaling Gateway Product Line; provided,
however, that this Section 4.01(e)(i) specifically excludes commercially
available off-the-shelf or "shrinkwrap" software with a per copy,
user or licensed installation fee of less than US $1000. (2)        The
Transferred Patent is beneficially owned by GENBAND US LLC, and GENBAND US LLC
has good and marketable title thereto, is in possession of the same, and to
GENBAND’s Knowledge free and clear of all Liens as of the Closing Date (other
than the license rights in the Transferred Patent retained by Nortel as set
forth inSection 3.03).  To GENBAND’s Knowledge, such ownership and
title is sufficient for PT to independently bring suit against a third party to
enforce the Transferred Patent. (3)        To
GENBAND’s Knowledge, no third party infringes upon, misappropriates, dilutes
otherwise violates the Signaling Gateway IP. (4)        To
GENBAND’s Knowledge, there has been no assertion or claim made in writing
within the past three (3) years asserting invalidity, misuse or
unenforceability of the GENBAND Signaling Gateway IP or the Transferred Patent,
or challenging the GENBAND Parties’ right to use, right to transfer or
ownership of the GENBAND Signaling Gateway IP or the Transferred Patent, ineach case excluding any assertions or claims that would
not reasonably be expected to result in any invalidity, unenforceability, loss
or other material impairment of any rights or interest in such GENBAND Signaling
Gateway IP or Transferred Patent.
  90


---



(5)        To
GENBAND’s Knowledge, within the past three (3) years there have been no Legal
Proceedings pending or allegations, claims or threats in writing that the
Signaling Gateway IP, the Transferred Patent or the Signaling Gateway Product
Line infringe upon, misappropriate or otherwise violate in any material respect
any Intellectual Property of any third party, and to GENBAND’s Knowledge, there
is no valid basis for any such allegation or claim. (6)        To
GENBAND’s Knowledge, the Signaling Gateway IP is in material compliance with
all CopyLeft License (as defined in the IPLA) obligations, if any. (7)        Notwithstanding
any provision herein to the contrary, thisSection 4.01(e)consists of
the sole representation and warranty in this Agreement regarding title,
non-infringement, non-violation and non-misappropriation of Intellectual
Property. (f)Performance. To GENBAND’s
Knowledge, the Signaling Gateway Product Line performs in substantial
conformance with its publicly available specifications. (g)Condition of Physical Assets. Except as set forth
inSchedule 4.01(g), all Physical Assets are in satisfactory operating
condition for the uses to which they are being put, subject to ordinary wear
and tear and ordinary maintenance requirements. Section 4.02Representations and Warranties of PT. PT represents and warrants to the
GENBAND Parties as follows: (a)Organization, Standing and Power. PT is a legal entity duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is organized. PT has the requisite power and authority to own, lease
or otherwise hold and operate its assets and to carry on its business as it is
now being conducted. (b)Authority. PT has full power
to carry out the transactions provided for in this Agreement, and this
Agreement is valid, binding and enforceable against PT in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization and similar laws affecting creditors generally and by the
availability of equitable remedies. The execution, delivery and performance of
this Agreement by PT, the consummation by PT of the transactions contemplated
hereby and the compliance by PT with the provisions of this Agreement have beenduly authorized by all necessary corporate action on
the part of PT, and no other corporate action or proceeding on the part of PT
or any of its stockholders is necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. Upon the execution and
delivery by PT of the Transaction Documents to which it is a party, and
assuming the due authorization, execution and delivery by the applicable
GENBAND Parties of the same, each such Transaction Document shall constitute
the legal, valid and binding obligations of PT, enforceable in accordance with
its terms.  PT has the right, power and authority to execute and deliver this
Agreement and the other Transaction Documents and to perform its respective
obligations under this Agreement and the other Transaction Documents. Neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby nor compliance by PT with any of the
provisions hereof will:
  91


---



(1)        Conflict
with or result in a breach of any provision of PT’s organizing documents; (2)        Result
in a material default under any of the terms, conditions or provisions of any
note, license, agreement or other instrument or obligation to which it is a
party, or by which it or any of its properties or assets may be bound; or (3)        Violate
any order, writ, injunction, decree, statute, rule or regulation applicable to
PT or the Transferred Assets.  No consent or approval by any governmental
authority is required in connection with the execution and delivery by PT of
this Agreement or the consummation by PT of the transactions contemplated
hereby. (c)Legal Proceedings and Compliance With Law. There are
no Legal Proceedings pending against PT or, to PT’s Knowledge, threatened in
writing against PT that question the validity or legality of any Transaction
Document or any action taken or to be taken by PT in connection herewith or
therewith, or which seek to enjoin or obtain monetary damages in respect of,
the consummation of the transactions contemplated hereby or thereby. Section 4.03Brokers or Finders. Except for PT’s
retention of Bowen Advisors, no Party has employed any brokers or finders in
connection with this Agreement. Section 4.04Effect of Representations and Warranties. The representations
and warranties of the GENBAND Parties and PT made in or pursuant to this
Agreement are made only to and for the benefit of the Parties hereto, and shall
not create rights in other Persons, including any third party to whom PT may
assign or sell any of the Transferred Assets. Section 4.05Disclaimer of Warranties. EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, NO PARTY MAKES ANY REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED,REGARDING ANY MATTER,
INCLUDING NON-INFRINGEMENT, MERCHANTABILITY, ORIGINALITY, INFORMATIONAL
CONTENT, SYSTEMS INTEGRATION, INTERFERENCE WITH ENJOYMENT, SUITABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, OR RESULTS TO BE DERIVED FROM THE USE OF ANY
TRANSFERRED ASSET. ALL TRANSFERRED ASSETS ARE HEREBY SOLD, TRANSFERRED,
ASSIGNED AND DELIVERED, AS APPLICABLE, TO PT ON AN “AS-IS” “WHERE-IS” BASIS.
  92


---



Article
5.LIABILITIES
AND INDEMNITIES. Section 5.01GENBAND Parties Indemnification. Subject to the
limitations set forth inArticle 6and elsewhere herein, the GENBAND
Parties shall, jointly and severally, defend, indemnify, and hold harmless PT
and its Affiliates in respect of and against, any and all Losses incurred or
suffered by PT or any Affiliate of PT resulting from (i) any breach of any
representation, warranty, agreement or covenant on the part of any GENBAND
Party contained in this Agreement, (ii) any breach by any GENBAND Party of any
covenant or obligation of the GENBAND Parties contained in any of the
Transaction Documents other than the IPLA and (iii)[***].  For the
avoidance of doubt, the obligations set forth in thisSection 5.01do
not extend to claims arising under the IPLA, which claims shall be addressed
solely in accordance with the terms of the IPLA. Section 5.02PT Indemnification. Subject to the
limitations set forth inArticle 6and elsewhere herein, PT shall
defend, indemnify, and hold harmless the GENBAND Parties and their Affiliates
in respect of and against, any and all Losses incurred or suffered by any
GENBAND Party or any Affiliate of any GENBAND Party resulting from (i) any
breach of any representation, warranty, agreement or covenant on the part of PT
contained in this Agreement, (ii) any breach by PT of any covenant or
obligation of PT contained in any of the Transaction Documents other than the
IPLA, (iii) the Assumed Obligations, and (iv) any claims by Bowen Advisers for
fees incurred in connection with the transactions contemplated herein up to the
amount of such fees.  For the avoidance of doubt, the obligations set forth in
thisSection 5.02do not extend to claims arising under the IPLA, which
claims shall be addressed solely in accordance with the terms of the IPLA. Section 5.03Indemnification Procedures. (a)If
any third party asserts any claim against a Party which, if successful, would
entitle the Party (the “Indemnified Party”) to indemnification
under thisArticle 5(a “Claim”), it shall give notice of
such Claim to the Party from whom it intends to seek indemnification (the “Indemnifying
Party”) no later than 10 Business Days from the date the Indemnified
Party first becomes aware of the Claim;provided,however, that
the failure to provide such notice shall not relieve the Indemnifying Party of
its indemnification obligations under thisArticle 5unless such failure
to provide such notice shall materially prejudice or impair the ability of the
Indemnifying Party to defend or resolve such Claim. (b)Each
notice of a Claim pursuant to thisSection 5.03shall be in writing and
must contain the identity and address of any third party claimant (to the
extent reasonably available tothe Indemnified Party),
and copies of any formal demand, notice or complaint received by the
Indemnified Party.
  93


---



(c)The
Indemnifying Party shall have the right to assume the defense and, subject toSection
5.03(d), settlement of such Claim at its expense by attorneys of its own
choosing and reasonably acceptable to the Indemnified Party (which acceptance
shall not be unreasonably withheld).  The Indemnified Party shall have the
right to participate in the defense of such Claim at its expense, in which case
the Indemnifying Party shall cooperate in providing information to and
consulting with the Indemnified Party about the Claim.  If the Indemnifying
Party fails or does not assume the defense of any such Claim within 15 days
after written notice of such Claim has been given by the Indemnified Party to the
Indemnifying Party, the Indemnified Party may defend against or, subject toSection
5.03(d), settle such Claim with counsel of its own choosing at the expense
of the Indemnifying Party. (d)If
the Indemnifying Party does not assume the defense of a Claim involving the
asserted liability of the Indemnified Party under thisArticle 5, no
settlement of such Claim shall be made by the Indemnified Party without the
prior written consent of the Indemnifying Party, which consent shall not be
unreasonably withheld or delayed.  If the Indemnifying Party assumes the
defense of such a Claim, (i) no settlement thereof may be effected by the
Indemnifying Party without the Indemnified Party’s consent which shall not be
unreasonably withheld unless (A) there is no finding or admission of any
violation of law or any violation of the rights of any Person and no effect on
any other Claim that may be made against the Indemnified Party, (B) the sole
relief provided is monetary damages that have been paid in full by the Indemnifying
Party, and (C) the settlement includes, as an unconditional term thereof, the
giving by the claimant or the plaintiff to the Indemnified Party of a release
in form and substance reasonably satisfactory to the Indemnified Party, from
all liability in respect of such Claim, and (ii) the Indemnified Party shall
have no liability with respect to any compromise or settlement thereof effected
without its consent. (e)The
Indemnified Party shall provide reasonable cooperation to the Indemnifying
Party in connection with any Claim for which the Indemnifying Party provides
defense.  Such cooperation shall include, without limitation, reasonable access
to all documentation and personnel of the Indemnified Party that may be helpful
in defense of the Claim;provided, however, that the Indemnified Party
shall not be required to incur any fees or expenses associated with such
cooperation. (f)If
any Indemnifying Party shall be obligated to indemnify any Indemnified Party
pursuant to this Agreement, such Indemnifying Party shall, upon payment of such
indemnity in full, be subrogated to the right to obtain any recoverable
insurance proceeds or the right to assert a claim against the third party, in
each case with respect to the Claim to which such indemnification relates. Article
6.LIMITATIONS
AND SURVIVAL Section 6.01Limitations and Caps on Losses and Indemnity. Notwithstanding
anything to the contrary in this Agreement:
  94


---



(a)Except
for any Claims based on fraud or a violation of criminal law, the maximum
obligation of the GENBAND Parties to provide indemnification for Losses
pursuant toArticle 5, or otherwise under this Agreement, shall be
limited to[***]. (b)Except
for any Claims based on fraud or a violation of criminal law or those brought
underSection 5.02(iv)(up to the amount of claimed fees), and except as
set forth inSection 6.01(b)(ii), the maximum obligation of PT to
provide indemnification for Losses pursuant toArticle 5shall be (i)
for Claims brought underSection 5.02(i)and(ii)as a result of
breaches of representations and warranties by PT and breaches by PT of any
covenant or obligations of PT contained in any of the Transaction Documents,
respectively, the amount of[***], and (ii) limited to the amount of[***]for all Claims brought underSection 5.02(iii). Notwithstanding
anything contained in thisSection 6.01, in the absence of fraud, (i) PT
shall not be entitled to indemnification pursuant toSection 5.01until
the aggregate amount of all such Claims for indemnification exceeds[***],
and thereafter PT shall be entitled to indemnification for the entire amount,
and (ii) the GENBAND Parties shall not be entitled to indemnification pursuant
toSection 5.02until the aggregate amount of all such Claims for
indemnification exceeds[***], and thereafter the GENBAND Parties shall
be entitled to indemnification for the entire amount;provided, however,
that the GENBAND Parties shall be entitled to indemnification pursuant toSection
5.02(iv)for the actual amount of Losses indemnifiable thereunder without
regard to the foregoing limitations, and such Losses shall not be applied
toward the application of such limitations to all other PT indemnification
obligations. Section 6.02Survival. All representations
and warranties set forth in this Agreement and the other Transaction Documents
will survive the Closing for a period of[***]from the Effective Time,
at which point they will automatically expire. Section 6.03Sole Remedy. Each Party
acknowledges and agrees that the sole and exclusive remedy with respect to any
and all breaches of the representations and warranties set forth in this
Agreement (other than claims of, or causes of action arising from (i) fraud or
willful misconduct or (ii) claims of, or causes of action for which the sole
remedy sought is equitable relief) shall be pursuant to the indemnification
provisions set forth inArticle 6.  Notwithstanding the foregoing,
nothing in thisSection 6.03shall limit any person’s right to seek and
obtain any equitable relief to which any person may be entitled. Article
7.COVENANTS. Section 7.01Employee Matters. (a)        The
Parties acknowledge that, prior to the Effective Date, PT offered employment
effective as of the Effective Date to the employees of GENBAND Canada
identified on the offer letters attached hereto asExhibit Fon terms and
conditions, including the compensation and benefits, set forth in therein. (b)        PT and
GENBAND Canada have identified certain current and formerGENBAND
Canada employees familiar with the scope of the Signaling Gateway Product Line
whom PT would be interested in employing after Closing to supplement the work
to be provided by the Transferred Employees.  The GENBAND Parties hereby agree
that no GENBAND Party will bring a claim against PT in connection with PT’s
efforts to offer employment to such current and former GENBAND Canada
employees, to the extent that such efforts do not violate applicable law.
  95


---



Section 7.02Further Assurances. The Parties hereto shall cooperate reasonably with each
other and with their respective representatives in connection with any steps required
to be taken as part of their respective obligations under the Transaction
Documents, and shall:  (a)        furnish upon request to each other such further
information;  (b)        execute and deliver to each other such other
documents; and  (c)        do such other acts and things, all as the other
Party may reasonably request for the purpose of carrying out the intent of this
Agreement and the other Transaction Documents. Section 7.03Assistance with Software Licenses. For a period of 90
days after the Effective Date, the GENBAND Parties shall, upon PT’s reasonable
request, use commercially reasonable efforts to assist PT’s efforts to enter
into license agreements with third parties under which PT will obtain rights to
the software products listed onSchedule 4.01(e)(1).  In no event shall
the assistance provided by the GENBAND Parties under thisSection 7.03involve the payment of money by any GENBAND Party. Section 7.04Use of “GENBAND” Name. Except as may be
displayed on the Physical Assets as of the Closing Date, PT agrees not to use
and shall cause its Affiliates not to use the “GENBAND” name (or any derivation
thereof) in any manner in any part of the world as part of its company names or
in any manner in connection with the Signaling Gateway Product Line or its
other products or businesses; provided, however, that for a period of one year
following the Closing, PT may continue to use and display the GENBAND name or
marks included within the Signaling Gateway Product Line as such GENBAND names
or marks are used as of the Closing Date. Article
8.Miscellaneous. Section 8.01Expenses. PT and the GENBAND
Parties shall each pay their own fees and expenses incidental to the
negotiation, preparation and execution of this Agreement and the obtaining of
the necessary approvals thereof, including fees and expenses of its counsel,
accountants and other experts. Section 8.02Governing Law. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF DELAWARE, REGARDLESS OFTHE LAWS THAT MIGHT
OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
  96


---



Section 8.03Notices. (a)All
demands, notices, communications and reports provided for in this Agreement
shall be in writing and shall be sent by facsimile transmission with
confirmation to the number specified below, or personally delivered or sent by
reputable overnight courier service (delivery charges prepaid) to a Party at
the address specified below, or at such address, to the attention of such other
person, and with such other copy, as the recipient Party has specified by prior
written notice to the sending Party pursuant to the provisions of thisSection
8.03. (1)If
to any GENBAND Party, to: GENBAND US LLC 2801 Network Boulevard, Suite 300 Frisco, Texas 75034 Attention:  Legal Department Facsimile:  972-265-3599  (2)If
to PT, to: Perftech
(PTI) Canada Corp. c/o
Performance Technologies, Inc. 205 Indigo
Creek Drive Rochester,
New York  14626 Attention:
John M. Slusser Facsimile: 585-256-3520  Any such demand,
notice, communication or report shall be deemed to have been given pursuant to
this Agreement when delivered personally, when confirmed if by facsimile
transmission, or on the Business Day after deposit with a reputable overnight
courier service, as the case may be.  (b)Any Party may alter
the address to which communications or copies are to be sent by giving notice
of such change of address in conformity with the provisions of thisSection
8.03for the giving of notice. Section 8.04Binding Nature of Agreement; Assignment. This Agreement
shall be binding upon and shall inure solely to the benefit of the Parties and
their respective successors, legal representatives and permitted assigns. 
Neither this Agreement nor any rights or obligations hereunder may be assigned
without the written consent of the other Party except that PT may assign any or
all of its rights, interest and obligations hereunder to (i) any of its
Affiliates and/or its financing sources (provided that no such assignment shall
discharge PT from any such obligations) or (ii) any Person that acquires all or
substantially all of PT’s assets or all or substantially all of PT’s product
line or business that includes the Signaling Gateway Product Line (or successor
thereto) or PT’s successor by way ofmerger or
acquisition.  Nothing in this Agreement, express or implied, is intended to or
shall confer upon any Person, other than the Parties and their respective
successors, legal representatives and permitted assigns, any rights, benefits
or remedies of any nature whatsoever under or by reason of this Agreement, and
no Person shall be deemed a third party beneficiary under or by reason of this
Agreement.
  97


---



Section 8.05Entire Agreement. This Agreement
contains the entire understanding among the Parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous agreements
and understandings, inducements or conditions, express or implied, oral or
written, except as specifically provided herein.  The express terms hereof
control and supersede any course of performance and/or usage of the trade
inconsistent with any of the terms hereof.  This Agreement may not be modified
or amended other than by an agreement in writing. Section 8.06Relationship of Parties. (a)The
Parties hereto, in the performance of this Agreement, will be acting in
separate capacities and not as employees, partners, joint venturers,
associates, or agents of one another. (b)With
regard to the performance of this Agreement, each Party acknowledges that it
does not have the authority to act for or in the name of the other Party or to
commit the other Party in any manner whatsoever.  The employees or agents of
one Party shall not be deemed or construed to be the employees or agents of the
other Party for any purpose whatsoever. Section 8.07Headings. The headings in
this Agreement are for convenience only, form no part of this Agreement, and
shall not affect its interpretation. Section 8.08Interpretation of Agreement. The Parties hereto
acknowledge and agree that this Agreement has been negotiated at arm's length
and between Parties equally sophisticated and knowledgeable in the matters
dealt with in the Agreement.  Accordingly, any rule of law, court decision, or
other legal precedent that would require interpretation of any ambiguities in
the Agreement against the Party that has drafted it is not applicable and is
waived.  The Parties hereto also acknowledge and agree that the Agreement
pertains to the purchase and sale of certain defined assets and,
notwithstanding anything to the contrary herein, shall be interpreted as such
and not as pertaining to the purchase and sale of any of the GENBAND Parties or
their businesses as a going concern. Section 8.09References. The terms “hereof”,
“herein”, “hereunder”, and similar expressions refer to this Agreement,
including any Exhibits hereto, taken as a whole and not to any particular
Article, Section, subsection or other subdivision thereof and include any
agreement or instrument which amends, modifies, or is supplementary to this
Agreement.  References herein to an Exhibit shall mean a reference to the applicable
Exhibit to this Agreement.  References in any Exhibit to the “Agreement” shall
mean a reference to this Agreement.  References in any Exhibit to anotherExhibit shall mean a reference to an Exhibit to this
Agreement.
  98


---



Section 8.10Attorneys’ Fees and Costs. If any Legal
Proceeding is brought to enforce or arises out of this Agreement or any term,
clause, or provision hereof, each Party shall bear its own attorneys’ fees
together with expenses and costs incurred with such Legal Proceeding. Section 8.11Waiver of Trial by Jury; Jurisdiction. All litigation
relating to or arising under or in connection with this Agreement or any of the
Transaction Documents shall be brought only in a United Stated District Court
or a state court located in the State of Delaware, which shall have exclusive
jurisdiction to resolve any disputes with respect to this Agreement or the
Transaction Documents, with each Party irrevocably consenting to the
jurisdiction thereof for any Legal Proceedings arising out of or relating to
this Agreement or the Transaction Documents.  The Parties irrevocably waive
trial by jury in any Legal Proceeding relating to this Agreement, the
Transaction Documents or any other agreement entered into in connection
therewith and for any counterclaim with respect thereto.  To the extent that
any Party has or hereafter may acquire any immunity from jurisdiction of any
court or from any legal process (whether through service or notice, attachment
prior to judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property, such Party hereby irrevocably waives such
immunity in respect of its obligations under this Agreement.  Each Party
irrevocably and unconditionally waives, to the fullest extent it may legally
and effectively do so, any objection that it may now or hereafter have to the
laying of venue of any Legal Proceeding arising out of or relating to this
Agreement in any such Delaware court. Each Party hereby irrevocably waives, to
the fullest extent permitted by applicable law, the defense of an inconvenient
forum to the maintenance of such Legal Proceeding. Section 8.12Modifications, Amendments or Waivers. No modifications or
amendments to the Agreement and no waiver of any provisions hereof shall be
valid unless made in writing signed by duly authorized representatives of the
Parties. Section 8.13Nonwaiver. Any failure or
delay by either Party to exercise or partially exercise any right, power or
privilege hereunder shall not be deemed a waiver of any of the rights, powers
or privileges under the Agreement.  The waiver by either Party of a breach of
any term, condition or provision of this Agreement shall not operate as, or be
construed as, a waiver of any subsequent breach thereof. Section 8.14Severability. If any provision of
this Agreement shall be held invalid under any applicable law, such invalidity
shall not affect any other provision of the Agreement that can be given effect
without the invalid provision and, to this end, the provisions hereof are
severable.  The covenants and provisions of this Agreement are separate and
independent.  With regard to all dates and time periods set forth or referred
to in the Agreement, time is of the essence.
  99


---



Section 8.15Publicity. (a)The
Parties shall cooperate with each other in releasing information concerning
this Agreement and the transactions contemplated hereby.  No press releases or
other public announcements concerning the transactions contemplated by this
Agreement shall be made by any Party without prior consultation with, and
agreement of, the other Party;provided, however, that either Party may
make any disclosure required by applicable law, so long as the disclosing Party
provides the other Party with as much advance notice as is practicable under
the circumstances, together with copies of all drafts of the proposed text. (b)The
Parties acknowledge that this Agreement, or portions thereof, and schedules
thereto, and descriptions of any of the foregoing, may be required under
applicable law to be disclosed in required public disclosure documents, or
exhibits thereto, of PT filed with the United States Securities and Exchange
Commission (the “SEC”) or any securities exchange on which its
securities are listed for trading.  Prior to such disclosure, and subject to
the next sentence, PT will inform the GENBAND Parties and will (i) use
commercially reasonable efforts to seek approval from the SEC or other
applicable regulatory authority for the confidential treatment of certain
confidential information identified by the Parties, and (ii) provide the
GENBAND Parties the reasonable opportunity to participate in such efforts. 
Prior to such disclosure, PT shall request redaction of such portions of the
Agreement or disclosure that the GENBAND Parties reasonably request to be
redacted, unless, in PT’s judgment based on the advice of counsel, PT concludes
that such redaction request is inconsistent with PT’s obligations under
applicable law. Section 8.16Counterparts. This Agreement may
be executed in one or more counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute the same Agreement.  Any
signature page of any such counterpart, or any electronic facsimile thereof,
may be attached or appended to any other counterpart to complete a fully
executed counterpart of this Agreement, and any telecopy or other facsimile
transmission of any signature shall be deemed an original and shall bind such
Party. [Signature page follows.]
   100


---



IN
WITNESS WHEREOF,the Parties hereto have
executed this Agreement as of the date first above mentioned.  GENBAND Parties:                           PT:  Genband US
LLCPERFTECH
(PTI) CANADA CORP. By:      /s/Charles VogtBy:      /s/John
M. Slusser Name:  Charles Vogt                                             Name:  John
M. Slusser Title:    Chief Executive Officer                           Title:    President
and CEO and President  Genband IP
Company By:      /s/Shauna Martin Name:  Shauna Martin Title:    Director  Genband
Canada ULC By:      /s/Shauna Martin Name:  Shauna Martin Title:    Director
  101


---