EXHIBIT 12
ROLLOVER AGREEMENT
AGREEMENT, dated as of May 5, 1998, by and between Analog Acquisition
Corp., a Delaware corporation ("Purchaser"), and the other party signatory
hereto (the "Stockholder"). Capitalized terms used but not defined herein shall
have the meanings set forth in the Agreement and Plan of Merger, dated the date
hereof, by and between Purchaser and ABC (the "Company") (as such agreement may
be amended from time to time, the "Merger Agreement").
WHEREAS, concurrently herewith, Purchaser and the Company are entering
into a Merger Agreement, pursuant to which Purchaser will be merged with and
into the Company (the "Merger"), whereby each share of common stock, par value
$.01 per share, of the Company ("Company Common Stock") issued and outstanding
immediately prior to the Effective Time will be converted into the right to
receive cash, other than any shares to remain outstanding pursuant to Section
2(g)(iii) of the Merger Agreement and any Dissenting Shares as defined in
Section 2(i) of the Merger Agreement.
WHEREAS, as a condition to Purchaser's entering into the Merger Agreement,
Purchaser requires that the Stockholder enter into, and the Stockholder has
agreed to enter into, this Agreement with Purchaser.
NOW, THEREFORE, in order to implement the foregoing and in consideration
of the mutual agreements contained herein, the parties hereby agree as follows:
Section 1. CERTAIN DEFINITIONS. The following terms, when used in this
Agreement, shall have the following meanings (such definitions to be equally
applicable to both singular and plural terms of the terms defined):
"ACQUISITION PROPOSAL" shall mean any agreement, letter of intent,
proposal or offer (other than the transactions contemplated in the Merger
Agreement) involving the Company or any of its Subsidiaries for, or an inquiry
or indication of interest that reasonably could be expected to lead to: (i) any
merger, consolidation, share exchange, recapitalization, reorganization,
dissolution, liquidation, business combination, or other similar transaction
with the Company or any of its Subsidiaries, (ii) any sale, lease, exchange,
mortgage, pledge, transfer or other disposition of a material portion of the
assets of the Company and its Subsidiaries, taken as a whole, in a single
transaction or series of transactions, or (iii) any tender offer or exchange
offer for all or any portion of the outstanding shares of capital stock of the
Company or any of its Subsidiaries or the filing of a registration statement
under the Securities Act of 1933, as amended, in connection therewith, but shall
not include the Merger Agreement.
"AFFILIATE" means, with respect to any Person, any other Person directly
or indirectly controlling, Controlled by, or under common Control with such
Person, provided that no security holder of the Company shall be deemed an
Affiliate of any other security holder solely by reason of any investment in the
Company. For the purpose of this definition, the term "control" (including with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of stock,
as a trustee or executor, by contract or credit arrangement or otherwise.
"BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to
any agreement, arrangement or understanding, whether or not in writing. Without
duplicative counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities Beneficially Owned by
all other Persons with whom such Person would constitute a "group" as described
in Section 13(d)(3) of the Exchange Act.
"BUSINESS DAYS" means any day on which the principal offices of the
Securities and Exchange Commission in Washington, D.C. are open to accept
filings or, in the case of determining a date when any payment is due, any day
other than a day on which banks in New York, New York are required or authorized
to be closed.
"COMPANY" has the meaning ascribed thereto in the recitals of this
Agreement.
"COMPANY COMMON STOCK" has the meaning ascribed thereto in the recitals of
this Agreement.
"CONTROL" (including the terms "CONTROLLED BY" and "UNDER COMMON CONTROL
WITH") means the possession, directly or indirectly or as a trustee or executor,
of the power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of stock, as a trustee or executor, by
contract or credit arrangement or otherwise.
"EXISTING SHARES" has the meaning ascribed thereto in Section 2(a).
"MERGER" has the meaning ascribed thereto in the recitals of this
Agreement.
"PERMITTED TRANSFEREE" means in the case of any Stockholder, (a) a spouse
or lineal descendent (including by adoption and stepchildren), heir, executor,
testamentary trustee or legatee of the Stockholder or (b) any trust or estate
the beneficiaries of which, or any corporation, limited liability company or
partnership, the stockholders, members or partners of which include only the
Persons described in clause (a) above.
2
"PERSON" means an individual, corporation, partnership, limited liability
company, limited partnership, association, trust, unincorporated organization or
other entity or group (as defined in Section 13(d)(3) of the Exchange Act).
"PURCHASER" has the meaning ascribed thereto in the introductory paragraph
of this Agreement.
"SHARES" means the Existing Shares, together with any shares of Company
Common Stock acquired of record or beneficially by the Stockholder in any
capacity after the date hereof and prior to the termination hereof, whether upon
exercise of options, conversion of convertible securities, purchase, exchange or
otherwise; PROVIDED, HOWEVER, that in the event of a stock dividend or
distribution, or any change in the Company Common Stock by reason of any stock
dividend, split-up, recapitalization, combination, exchange of shares or the
like, the term "Shares" shall be deemed to refer to and include the Shares as
well as all such stock dividends and distributions and any shares into which or
for which any or all of the Shares may be changed or exchanged.
"STOCKHOLDER" has the meaning ascribed thereto in the introductory
paragraph to this Agreement.
"TERMINATION DATE" has the meaning ascribed thereto in Section 9 of this
Agreement.
"TRUSTEE" has the meaning ascribed thereto in Section 2(a) of this
Agreement.
Section 2. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. The
Stockholder hereby represents and warrants to Purchaser as follows:
(a) The Stockholder is either (A) the record holder or beneficial
owner of the number of, or (B) trustee of a trust that is the record
holder or beneficial owner of, and whose beneficiaries are the
beneficial owners (such trustee, a "Trustee"), shares of Company
Common Stock and Options as is set forth opposite the Stockholder's
name on Schedule I hereto (the "Existing Shares").
(b) No broker, investment banker, financial adviser or other person
is entitled to any broker's, finder's, financial adviser's or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of the Stockholder in
his or her capacity as such.
(c) The Stockholder understands and acknowledges that Purchaser is
entering into the Merger Agreement in reliance upon the Stockholder's
execution and delivery of this Agreement with Purchaser.
3
Section 3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. Purchaser
hereby represents and warrants to the Stockholder as follows:
(a) Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its formation.
(b) Purchaser has all necessary power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance by Purchaser of this
Agreement and the consummation by Purchaser of the transactions
contemplated hereby have been duly and validly authorized and approved by
all required corporate action other than shareholder approval which shall
be effected prior to the Effective Time. This Agreement has been duly
executed and delivered by Purchaser, and (assuming due authorization,
execution and delivery by the Stockholder) constitutes a valid and binding
obligation of Purchaser, enforceable against it in accordance with its
terms, except as limited by (a) bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to creditor's rights generally,
(b) general principles of equity, whether such enforceability is
considered in a proceeding in equity or at law, and to the discretion of
the court before which any proceeding therefor may be brought, or (c)
public policy considerations or court decisions which may limit the rights
of the parties thereto for indemnification.
(c) No broker, investment banker, financial adviser or other person
is entitled to any broker's, finder's, financial adviser's or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of the Purchaser.
Section 4. CERTAIN COVENANTS OF THE STOCKHOLDER. Except in accordance with
the terms of this Agreement, the Stockholder hereby covenants and agrees as
follows:
(a) Prior to the Termination Date, no Stockholder shall, in its
capacity as such, directly or indirectly (including through advisors,
agents or other intermediaries), solicit (including by way of furnishing
information) or respond to any inquiries or the making of any proposal by
any person or entity (other than Purchaser or any Affiliate thereof) with
respect to the Company that constitutes or could reasonably be expected to
lead to an Acquisition Proposal. If the Stockholder in its capacity as
such receives any such inquiry or proposal, then the Stockholder shall
within 24 hours furnish Purchaser with an accurate description of the
material terms (including any changes or adjustments to such terms as a
result of negotiations or otherwise) and conditions, if any, of such
inquiry or proposal and the identity of the person making it. The
Stockholder, in its capacity as such, will immediately cease and cause to
be terminated any existing activities, discussions or negotiations with
any parties conducted heretofore with respect to any of the foregoing;
provided, that the limitation set forth in this sentence shall not
restrict the Stockholder from engaging in any such activities with such a
third party who hereafter makes a
4
Superior Acquisition Proposal. The foregoing provisions of this Section
4(a) shall not restrict a Stockholder who is also a director of the
Company from taking any actions, or refraining from complying with the
foregoing provision, in the Stockholder's capacity as a director, provided
that any such actions do not violate Section 5(k) of the Merger Agreement.
(b) Prior to the Termination Date, the Stockholder shall not,
directly or indirectly (i) except pursuant to the terms of the Merger
Agreement or this Agreement, offer for sale, sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of, enforce or permit the
execution of the provisions of any redemption agreement with the Company
or enter into any contract, option or other arrangement or understanding
with respect to or consent to the offer for sale, sale, transfer, tender,
pledge, encumbrance, assignment or other disposition of, or exercise any
discretionary powers to distribute, any or all of the Stockholder's
Rollover Shares (as defined below); or (ii) take any action that would
make any representation or warranty of the Stockholder contained herein
untrue or incorrect or have the effect of preventing or disabling the
Stockholder from performing the Stockholder's obligations under this
Agreement.
(c) The Stockholder hereby waives any rights of appraisal or rights
to dissent from the Merger that the Stockholder may have. The Trustee
represents that no beneficiary who is a beneficial owner of Rollover
Shares under any trust has any right of appraisal or right to dissent from
the Merger which has not been so waived.
(d) (i) Subject to the terms and provisions of the Merger Agreement,
in connection with the Merger, the Stockholder hereby agrees to retain an
aggregate of 2,500 shares of Surviving Corporation Class A Common Stock
held by and registered in the name of the Stockholder, and in the amount
opposite such name, set forth on Schedule I hereto, upon conversion of or
acquisition, after the date hereof but prior to the Effective Time of,
2,500 of such Stockholder's Shares (the "Rollover Shares") unless
otherwise agreed with Purchaser.
(ii) The Stockholder shall use its best efforts to negotiate
and execute an Investors Agreement on terms and conditions mutually
satisfactory to Purchaser and Stockholder.
(e) Unless, in connection therewith, the Rollover Shares held by any
trust which are presently subject to the terms of this Agreement are
transferred to the Stockholder and remain subject in all respects to the
terms of this Agreement, or other Permitted Transferees who upon receipt
of such Rollover Shares become signatories to this Agreement, the
Stockholder who is a Trustee shall not take any action to terminate, close
or liquidate any such trust and shall take all steps necessary to maintain
the existence thereof at least until the first to occur of (i) the
Effective Time and (ii) the Termination Date.
5
(f) The Stockholder shall take all actions necessary to cause any
Rollover Shares, prior to the Effective Time, to be free and clear of all
liens, claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever,
except for any such encumbrances or proxies arising hereunder.
Section 5. FURTHER ASSURANCES. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
Section 6. CERTAIN EVENTS. The Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Stockholder's Rollover Shares and
shall be binding upon any person or entity to which legal or Beneficial
Ownership of such Rollover Shares shall pass, whether by operation of law or
otherwise, including without limitation the Stockholder's heirs, guardians,
administrators or successors or as a result of any divorce.
Section 7. STOP TRANSFER. The Stockholder agrees with, and covenants to,
Purchaser that the Stockholder shall not request that the Company register the
transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing any of the Stockholder's Rollover Shares, unless such transfer is
made in compliance with this Agreement.
Section 8. RULE 145 AFFILIATES. The Stockholder who is an "affiliate" of
the Company for purposes of Rule 145 under the Securities Act of 1933, as
amended, hereby agrees to deliver to Purchaser, on or prior to the Effective
Time, a written agreement in form and substance acceptable to Purchaser,
restricting the disposition of Rollover Shares.
Section 9. TERMINATION. The obligations of the Stockholder hereunder shall
terminate upon the first to occur of (a) the Effective Time and (b) the date the
Merger Agreement is terminated in accordance with its terms (the "Termination
Date"); provided that the provisions of Sections 2, 3, 9 and 10 and any claim
for breach of any representation, warranty, covenant or other agreement under
this Agreement shall survive the Effective Time and/or the Termination Date, as
applicable.
Section 10. MISCELLANEOUS.
(a) NOTICES. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been
duly given (i) on the day of service if served personally on the party to
whom notice is to be given; (ii) on the day of transmission if sent via
facsimile transmission to the facsimile number given below, and telephonic
confirmation of receipt is obtained promptly after completion of
transmission, provided that a copy shall be sent via certified mail,
return receipt
6
requested, simultaneously with any such facsimile; (iii) on the business
day after delivery to Federal Express or similar overnight courier or the
Express Mail service maintained by the United States Postal Service; or
(iv) on the fifth day after mailing, if mailed to the party to whom notice
is to be given, by first class mail, registered or certified, postage
prepaid and properly addressed, to the party as follows:
If to the Stockholder: Xxxxxx Xxxxxx
000 Xxxxxxxx Xx.
Xxxxxxxxx, XX 00000
If to Purchaser: Analog Acquisition Corp.
c/o 399 Venture Partners Inc.
000 Xxxx Xxxxxx
00xx Xxxxx, Xxxx 0
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Xx.
Telecopier: 000-000-0000
and: Xxxxxx, Xxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Telecopier: 000-000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth
above.
(b) At any time prior to the Effective Time, any party hereto may,
with respect to any other party hereto, (i) extend the time for the
performance of any of the obligations or other acts, (ii) waive any
inaccuracies in the representations and warranties contained herein or in
any document delivered pursuant hereto or (iii) waive compliance with any
of the agreements or conditions contained herein. Any such extension or
waiver shall be valid if set forth in an instrument in writing signed by
the party or parties to be bound thereby.
(c) The headings contained in this Agreement are for the convenience
of reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(d) If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as
7
the economic or legal substance of the transactions contemplated by the
Merger Agreement is not affected in any manner adverse to any party. Upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner.
(e) This Agreement, including all exhibits, disclosure schedules and
schedules hereto, constitutes the entire agreement and supersedes all
prior agreements and undertakings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof and
except as otherwise expressly provided herein.
(f) Neither this Agreement nor any of the rights or obligations
hereunder may be assigned by any party (whether by operation of law or
otherwise) without the prior written consent of the other parties hereto.
Subject to the preceding sentence, this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, and no other Person shall have any
right, benefit or obligation under this Agreement as a third party
beneficiary or otherwise.
(g) The parties hereto agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed
in accordance with their specific terms. It is accordingly agreed that the
parties hereto shall be entitled to specific performance of the terms
hereof, this being in addition to any other remedy to which they are
entitled at law or in equity.
(h) No failure or delay on the part of any party hereto in the
exercise of any right hereunder shall impair such right or be construed to
be a waiver of, or acquiescence in, any breach of any representation,
warranty or agreement herein, nor shall any single or partial exercise of
any such right preclude other or further exercise thereof or of any other
right. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies otherwise
available.
(i) Notwithstanding anything herein to the contrary, no Person
executing this Agreement who is, or becomes during the term hereof, a
director of the Company makes any agreement or understanding herein in his
or her capacity as such director, and the agreements set forth herein
shall in no way restrict any director in the exercise of his or her
fiduciary duties as a director of the Company. The Stockholder has
executed this Agreement solely in his or her capacity as the record or
beneficial holder of the Stockholder's Shares or as the trustee of a trust
whose beneficiaries are the beneficial owners of the Stockholder's Shares.
(j) Each party agrees to bear its own expenses in connection with
the transactions contemplated hereby.
8
(k) This Agreement shall be governed and construed in accordance
with the laws of the State of New York, without giving effect to any
choice of law or conflict of law provision or rule that would cause the
application of the laws of any jurisdiction other than the State of New
York, except to the extent that the General Corporation Law of the State
of Delaware applies as a result of the Company being incorporated in the
State of Delaware, in which case such General Corporation Law shall apply.
(l) EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT AND FOR
ANY COUNTERCLAIM THEREIN.
(m) This Agreement may be executed in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which
when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
[Signature Page to Follow]
9
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
ANALOG ACQUISITION CORP.
By: /s/ Xxx X. Xxxxxx
------------------------
Name: Xxx X. Xxxxxx
Title: Vice President
/s/ Xxxxxx Xxxxxx
---------------------------
Xxxxxx Xxxxxx
SCHEDULE I
EXISTING SHARES
---------------
STOCKHOLDER NO. OF EXISTING SHARES NO. OF OPTION SHARES
----------- ---------------------- --------------------
Xxxxxx Xxxxxx 980 0
SCHEDULE II
ROLLOVER SHARES
---------------
STOCKHOLDER NO. OF ROLLOVER SHARES
----------- ----------------------
Xxxxxx Xxxxxx 2,500
