TO THE CONTRARY HEREIN OR IN THE
SUPPLIER AGREEMENT, SUCH ORDER IS NON-CANCELABLE.
OTHER THAN AS EXPRESSLY SET
FORTH IN THIS SECTION 7 (ORDER OF REMAINING INVENTORY PRODUCTS), THE ORDER FOR
THE INVENTORY PRODUCTS IS SUBJECT TO THE TERMS AND CONDITIONS OF THE SUPPLIER
AGREEMENT.
PCD LLC SHALL PROVIDE A WRITTEN PURCHASE ORDER FOR SUCH ORDER OF
INVENTORY PRODUCTS PROMPTLY FOLLOWING ITS RECEIPT OF A PURCHASE ORDER FROM A
CARRIER.
8.
WARRANTY AGAINST ASSIGNMENT.
THE PARTIES, ON BEHALF OF THEIR SUCCESSORS
AND ASSIGNS, HEREBY WARRANT AND COVENANT THAT THEY HAVE NOT TRANSFERRED OR
ASSIGNED AND PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT, AND WILL NOT
TRANSFER OR ASSIGN TO ANY THIRD PARTY (EXCEPT UNDER SECTION 18 (ASSIGNMENT)),
ANY ACTIONS OR RIGHTS TO BRING ACTIONS THAT THEY HAVE OR MAY HAVE AGAINST ANY OF
THE RELEASED PARTIES OR RELEASING PARTIES, ARISING OUT OF, OR IN CONNECTION WITH
ANYTHING WHATSOEVER RELATING TO THE RELEASED MATTERS.
9.
WAIVER OF EARNOUT PAYMENTS.
BY THIS AGREEMENT, UTS INC., ON BEHALF OF
ITSELF AND THE UTS RELEASING PARTIES, HEREBY WAIVES ALL OF ITS RIGHTS CONTAINED
IN SECTIONS 1.7 OF THE MERGER AGREEMENT INCLUDING, WITHOUT LIMITATION, THE RIGHT
TO RECEIVE THE EARNOUT PAYMENT, AND ACKNOWLEDGES AND AGREES THAT IT AND THEY
SHALL NOT HAVE ANY FURTHER RIGHTS THEREUNDER OR WITH RESPECT THERETO.
10.
WAIVER OF EQUITY PURCHASE RIGHTS.
BY THIS AGREEMENT, UTS INC., ON BEHALF
OF ITSELF AND THE UTS RELEASING PARTIES, HEREBY WAIVES ALL OF ITS RIGHTS TO
PURCHASE ANY EQUITY INTEREST IN PCD HOLDINGS, LLC PURSUANT TO THE MERGER
AGREEMENT OR AGREEMENTS ENTERED INTO IN CONNECTION WITH THE MERGER AGREEMENT,
AND ACKNOWLEDGES AND AGREES THAT IT SHALL NOT HAVE ANY FURTHER RIGHTS WITH
RESPECT THERETO.
11.
OPTION TO REPURCHASE THE PURCHASED CLASS A UNITS.
(A)
AT ANY TIME DURING THE PERIOD BEGINNING ON THE EFFECTIVE DATE AND
ENDING AT 11:59PM PDT ON THE NINETIETH (90TH) DAY THEREAFTER (THE "REPURCHASE
PERIOD"), PCD HOLDINGS LLC OR ITS DESIGNEE MAY BY DELIVERY OF A WRITTEN NOTICE
TO UTS INC. IN ACCORDANCE WITH SECTION 11.5 OF THE MERGER AGREEMENT (THE
"REPURCHASE NOTICE"), AT ITS OPTION, REPURCHASE FROM UTS INC., AND UTS INC.
WILL, AT THE REQUEST OF PCD HOLDINGS LLC OR ITS DESIGNEE, SELL, CONVEY,
TRANSFER, ASSIGN AND DELIVER TO PCD HOLDINGS LLC OR ITS DESIGNEE, ALL RIGHT,
TITLE AND INTEREST IN AND TO THE PURCHASED CLASS A UNITS FREE AND CLEAR OF ANY
LIENS, CLAIMS, PLEDGES, SECURITY INTERESTS, EQUITY INTERESTS OR ENCUMBRANCES
(OTHER THAN THOSE IMPOSED UNDER APPLICABLE SECURITIES LAWS AND AS SET FORTH IN
7
AGREEMENTS WITH PCD HOLDINGS LLC), FOR AN AGGREGATE REPURCHASE PRICE OF ONE
MILLION SIX HUNDRED THOUSAND AND NO/100 ($1,600,000.00).
(B)
THE CLOSING OF THE REPURCHASE OF THE PURCHASED CLASS A UNITS (THE
"REPURCHASE CLOSING DATE") SHALL BE HELD NOT EARLIER THAN FIVE (5) DAYS NOR
LATER THAN THIRTY (30) DAYS AFTER DELIVERY OF THE REPURCHASE NOTICE.
UPON
DELIVERY BY PCD HOLDINGS LLC OR ITS DESIGNEE OF THE REPURCHASE PRICE FOR THE
PURCHASED CLASS A UNITS, UTS INC. SHALL DELIVER TO