Item 1.01.
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Entry into a Material Definitive Agreement.
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On March 7, 2017, Extreme Networks,
Inc., a Delaware corporation (the
Company
), entered into an Asset Purchase Agreement (the
Purchase Agreement
) with Avaya Inc., a Delaware corporation (
Avaya
), to purchase Avayas
fabric-based secure networking solutions and network security solutions business (the
Business
) under section 363 of the United States Code, 11 U.S.C. § 101-1532 (the
Bankruptcy Code
). Upon the terms and
subject to the conditions of the Purchase Agreement, the Company will acquire customers, employees, technology and other assets of the Business, as well as assume certain contracts and other liabilities of the Business, for a purchase price of $100
million, subject to certain adjustments set forth in the Purchase Agreement related to net working capital, deferred revenue, certain assumed lease obligations and certain assumed pension obligations for transferring employees of the Business.
Pursuant to certain ancillary agreements, Avaya will also provide the Company with access to certain technology related to the Business, as well as transition services for a period of time following the closing of the transaction (the
Closing
).
On January 19, 2017, Avaya, together with certain of its subsidiaries and its parent, commenced
voluntary cases (the
Bankruptcy Cases
) under chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Southern District of New York (the
Bankruptcy Court
). In connection with the Purchase
Agreement, Avaya is seeking approval of a bidding and public auction process for the Business pursuant to section 363 of the Bankruptcy Code, and as such, the Purchase Agreement is subject to higher or better offers made in accordance with bidding
procedures that are approved by the Bankruptcy Court.
The Closing is subject to the satisfaction of customary closing conditions,
including, among other matters, (i) the absence of any law or governmental order prohibiting or preventing the consummation of the transactions contemplated by the Purchase Agreement, (ii) the receipt of certain needed governmental
approvals and authorizations, (iii) the receipt of certain material contractual consents, (iv) the accuracy of the representations and warranties and compliance with the covenants set forth in the Purchase Agreement, (v) the absence
of any material adverse effect on the Business, (vi) the approval and entry of the bidding procedures order by the Bankruptcy Court and (vii) the approval of the transaction and entry of a sale order by the Bankruptcy Court. There is no
financing condition to the Closing.
The Purchase Agreement includes customary representations and warranties of each of the Company and
Avaya. The representations and warranties in the Purchase Agreement are the product of negotiations among the parties to the Purchase Agreement and are made to, and solely for the benefit of, the party to whom such representations and warranties are
made, in each case as of specified dates. Such representations and warranties may have been made for the purpose of allocating contractual risk between the parties to the Purchase Agreement instead of establishing these matters as facts, may be
subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors, and may not be relied upon by any other person.
The Purchase Agreement also contains certain customary covenants and agreements, including, without limitation, (i) customary interim
covenants of Avaya relating to operations between the date of the Purchase Agreement and the Closing, (ii) mutual confidentiality obligations and (iii) efforts of each of the parties to cause the Closing to be consummated, including with
regards to obtaining any required regulatory approvals. Subject to certain exceptions and limitations, each party has agreed to indemnify the other for breaches of representations, warranties, covenants and other specified matters.
The Purchase Agreement contains certain termination rights for each of the Company and Avaya and provides that, under certain circumstances,
Avaya may be required to pay a termination fee to the Company. Specifically, in the event that the Purchase Agreement is terminated as a result of an alternative transaction, the Company will generally be entitled to a termination fee of $3
million plus reimbursement of its out-of-pocket fees and expenses (up to an additional $750,000). Under certain other circumstances unrelated to an alternative transaction, such as the Closing failing to occur prior to the date nine months from the
signing date or the issuance of an order or judgment by the Bankruptcy Court or other governmental authority prohibiting the consummation of the Closing, Avaya must reimburse the Companys out-of-pocket fees and expenses (up to $750,000).
The foregoing description of the Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the full
text of the Purchase Agreement, a copy of which is attached hereto as Exhibit 2.1 and is incorporated by reference herein.
Forward-Looking Statements
Statements set forth in this communication that are not historical are forward-looking statements within the meaning of the U.S.
Private Securities Litigation Reform Act of 1995. These forward-looking statements are based upon managements current beliefs and expectations and are subject to uncertainty and changes in circumstances and contain words such as
believe, intended, expect, and anticipate and include statements about expectations for future results. The forward-looking statements involve risks that may
affect the Companys operations, markets, products, services, prices and other risk factors discussed in the companys filings with the Securities and Exchange Commission (SEC),
including those under the heading entitled Risk Factors in the Companys latest Annual Report on Form 10-K and Quarterly Report on Form 10-Q. Significant risks and uncertainties may relate to, but are not limited to, the risk that
the acquisition may not be completed, the risk that the Company may not realize the anticipated benefits of the acquisition, the risk that the Company may not retain customer and supplier relationships and other risks associated with the
acquisition, such as the ability to successfully integrate the acquired technologies or operations, the potential for unexpected liabilities and the Companys ability to retain key employees. Unless otherwise required by applicable laws, the
Company undertakes no obligation to update or revise any forward-looking statements, whether as a result of new information or future developments.