EXHIBIT 7
STOCKHOLDER VOTING AND ROLLOVER AGREEMENT
AGREEMENT, dated as of May 5, 1998, by and between Analog Acquisition
Corp., a Delaware corporation ("Purchaser"), and the other parties 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)(i).
"HSR ACT" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended.
"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,
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limited liability company or partnership, the stockholders, members or partners
of which include only the Persons described in clause (a) above.
"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.
"SUBSIDIARY" means, with respect to any Person, any entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by such Person.
"TERMINATION DATE" has the meaning ascribed thereto in Section 10 of this
Agreement.
"TRUSTEE" has the meaning ascribed thereto in Section 2(a)(i) of this
Agreement.
Section 2. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. The
Stockholder hereby represents and warrants to Purchaser as follows:
(a) (i) 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").
(ii) On the date hereof, the Existing Shares set forth opposite the
Stockholder's name on Schedule I hereto constitute all of the outstanding
shares of
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Company Common Stock owned of record or beneficially by the Stockholder.
The Stockholder does not have record or beneficial ownership of any Shares
not set forth on Schedule I hereto.
(iii) The Stockholder has sole power of disposition with respect to
all of the Existing Shares set forth opposite the Stockholder's name on
Schedule I and sole voting power with respect to the matters set forth in
Section 4 hereof and sole power to demand dissenter's or appraisal rights,
in each case with respect to all of the Existing Shares set forth opposite
the Stockholder's name on Schedule I, with no restrictions on such rights,
subject to applicable federal securities laws and the terms of this
Agreement.
(iv) The Stockholder will have sole power of disposition with
respect to Shares other than Existing Shares, if any, which become
beneficially owned by the Stockholder and will have sole voting power with
respect to the matters set forth in Section 4 hereof and sole power to
demand dissenter's or appraisal rights, in each case with respect to all
Shares other than Existing Shares, if any, which become beneficially owned
by the Stockholder with no restrictions on such rights, subject to
applicable federal securities laws and the terms of this Agreement.
(b) The Stockholder has the legal capacity, power and authority to enter
into and perform all of the Stockholder's obligations under this Agreement.
Other than as set forth in Schedule 2(b), the execution, delivery and
performance of this Agreement by the Stockholder will not violate any other
agreement to which the Stockholder is a party or by which the Stockholder
is bound including, without limitation, any trust agreement, voting
agreement, stockholders agreement, voting trust, partnership or other
agreement. This Agreement has been duly and validly executed and delivered
by the Stockholder and constitutes a valid and binding agreement of the
Stockholder, enforceable against the Stockholder 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 therefore may be brought, or (c) public policy
considerations or court decisions which may limit the rights of the parties
thereto for indemnification. All necessary consents of any beneficiary of
or holder of interest in any trust of which a Stockholder is Trustee to the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been obtained. If the Stockholder is
married and the Stockholder's Shares constitute community property, this
Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, the Stockholder's spouse,
enforceable against such person in accordance with its terms.
(c) (i) No filing with, and no permit, authorization, consent or approval
of, any state or federal public body or authority is necessary for the
execution of this Agreement by the Stockholder and the consummation by the
Stockholder of the transactions contemplated
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hereby and (ii) neither the execution and delivery of this Agreement by the
Stockholder nor the consummation by the Stockholder of the transactions
contemplated hereby nor compliance by the Stockholder with any of the
provisions hereof shall (x) conflict with or result in any breach of any
applicable trust, partnership agreement or other agreements or
organizational documents applicable to the Stockholder, (y) result in a
violation or breach of, or constitute (with or without notice or lapse of
time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any
of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which the
Stockholder is a party or by which the Stockholder or any of the
Stockholder's properties or assets may be bound or (z) violate any order,
writ, injunction, decree, judgment, statute, rule or regulation applicable
to the Stockholder or any of the Stockholder's properties or assets.
(d) Except for the shares of Company Common Stock identified in Schedule
II hereto (the "Pledged Shares"), the Stockholder's Shares and the
certificates representing such Shares are now and at all times during the
term hereof will be held by the Stockholder, or by a nominee or custodian
for the benefit of the Stockholder, 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.
(e) 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.
(f) 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.
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
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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) The execution and delivery of this Agreement do not, and the
consummation by Purchaser of the transactions contemplated by this
Agreement and compliance by Purchaser with the provisions of this Agreement
will not, conflict with, or result in any breach or violation of, or
default (with or without notice or lapse of time, or both) under, or give
rise to a right of termination, cancellation or acceleration of or "put"
right with respect to any obligation or to loss of a material benefit
under, or result in the creation of any lien upon any of the properties or
assets of Purchaser under, (i) any charter or by-laws of Purchaser, (ii)
any loan or credit agreement, note, bond, mortgage, indenture, lease or
other agreement, instrument, permit, concession, franchise or license
applicable to Purchaser or its properties or assets or (iii) any judgment,
order, decree, statute, law, ordinance, rule, regulation or arbitration
award applicable to Purchaser or its properties or assets. No consent,
approval, order or authorization of, or registration, declaration or filing
with, or notice to, any state or federal public body or authority is
required by or with respect to Purchaser in connection with the execution
and delivery of this Agreement by Purchaser or the consummation by
Purchaser of any of the transactions contemplated by this Agreement.
(d) No broker, investment banker, financial adviser or other person isto
anyled broker's, finder's, financial adviser's or other similar fee or
coconnectionn with the transactions contemplated hereby based upon arrangements
or on behalf of the Purchaser.
Section 4. AGREEMENT TO VOTE; PROXY
(a) The Stockholder hereby agrees that, until the Termination Date (as
defined in Section 10), at any meeting of the stockholders of the Company,
however called, or in connection with any written consent of the
stockholders of the Company, the Stockholder shall vote (or cause to be
voted) the Shares held of record or beneficially by the Stockholder (i) in
favor of the Merger, the execution and delivery by the Company of the
Merger Agreement and the approval of the terms thereof and each of the
other actions contemplated by the Merger Agreement and this Agreement and
any actions required in furtherance hereof and thereof; (ii) against any
action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement or this Agreement; and (iii) against the
following actions (other than the Merger and the transactions contemplated
by the Merger
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Agreement or any such actions identified in writing by Purchaser in
advance): (A) any extraordinary corporate transaction, including, without
limitation, a merger, consolidation or other business combination involving
the Company or its Subsidiaries; (B) a sale, lease or transfer of a
material amount of assets of the Company or its Subsidiaries or a
reorganization, recapitalization, dissolution or liquidation of the Company
or its Subsidiaries; (C) any change in the majority of the board of
directors of the Company; (D) any material change in the present
capitalization of the Company or any amendment of the Company's Certificate
of Incorporation or By-Laws; (E) any other material change in the Company's
corporate structure or business; or (F) any other action which is intended,
or could reasonably be expected, to impede, interfere with, delay,
postpone, discourage or materially adversely affect the Merger or the
transactions contemplated by the Merger Agreement or this Agreement. The
Stockholder shall not enter into any agreement or understanding with any
person or entity to vote or give instructions in any manner inconsistent
with clauses (i) or (ii) of the preceding sentence.
(b) THE STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS, PURCHASER AND ANY
DESIGNEE OF PURCHASER, EACH OF THEM INDIVIDUALLY, THE STOCKHOLDER'S
IRREVOCABLE (UNTIL THE TERMINATION DATE) PROXY AND ATTORNEY-IN-FACT (WITH
FULL POWER OF SUBSTITUTION) TO VOTE THE SHARES AS SET FORTH IN SECTION 4(a)
ABOVE. THE STOCKHOLDER INTENDS THIS PROXY TO BE IRREVOCABLE (UNTIL THE
TERMINATION DATE) AND COUPLED WITH AN INTEREST AND WILL TAKE SUCH FURTHER
ACTION AND EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE
THE INTENT OF THIS PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY
THE STOCKHOLDER WITH RESPECT TO THE STOCKHOLDER'S SHARES.
Section 5. 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
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engaging in any such activities with such a third party who hereafter makes
a Superior Acquisition Proposal. The foregoing provisions of this Section
5(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 Shares or any interest therein,
including any trust income or principal, except in each case to a Permitted
Transferee who is or agrees to become bound by this Agreement; (ii) except
as contemplated hereby, grant any proxies or powers of attorney with
respect to any Shares, deposit any Shares into a voting trust or enter into
a voting agreement with respect to any Shares; or (iii) 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 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 26,250 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 III hereto, upon conversion of,
and with respect to, 26,250 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 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 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
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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.
(f) The Stockholder shall take all actions necessary to cause any Rollover
Shares that constitute Pledged 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 6. 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 7. CERTAIN EVENTS. The Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Stockholder's Shares and shall be
binding upon any person or entity to which legal or Beneficial Ownership of such
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 8. 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 Shares, unless such transfer is made in
compliance with this Agreement.
Section 9. 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 10. TERMINATION. The obligations of the Stockholder and the
irrevocable proxy contained in Section 4(b) of this Agreement 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, 10 and 11 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 11. 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
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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 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 X. Xxxxxx
0 Xxxxx Xxxxx
Xxxxx Xxxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
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 & Bockius 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.
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(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 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.
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(j) Each party agrees to bear its own expenses in connection with the
transactions contemplated hereby.
(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 Pages to Follow]
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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 X. Xxxxxx
----------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxx Xxxxxx
----------------------------------
Xxxx Xxxxxx
/s/ Xxxxx Xxxxxx
----------------------------------
Xxxxx Xxxxxx
/s/ Xxxx Xxxxxx
----------------------------------
Xxxx Xxxxxx,
as Custodian for Xxxx Xxxxxx
/s/ Xxxxxxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxxxxxx X. Xxxxxx
/s/ Xxxxxx Xxxxxx
----------------------------------
Xxxxxx Xxxxxx
/s/ Xxxxxx Xxxxxx
----------------------------------
Xxxxxx Xxxxxx,
as Custodian for Xxxxxx Xxxxxx
/s/ Xxxx Xxxxxx
----------------------------------
Xxxx Xxxxxx
SCHEDULE I
EXISTING SHARES
---------------
STOCKHOLDER NO. OF EXISTING SHARES NO. OF OPTION SHARES
----------- ---------------------- --------------------
Xxxxxx X. Xxxxxx 887,400 30,000
Xxxx Xxxxxx
Xxxxx Xxxxxx
Xxxx Xxxxxx
as Custodian
for Xxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxx,
as Custodian
for Xxxxxx Xxxxxx
Xxxx Xxxxxx
TOTAL 887,400 30,000
======= ======
SCHEDULE II
PLEDGED SHARES
--------------
STOCKHOLDER NO. OF PLEDGED SHARES
----------- ---------------------
Xxxxxx X.Xxxxxx 0
Xxxx Xxxxxx
Xxxxx Xxxxxx
Xxxx Xxxxxx
as Custodian
for Xxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxx,
as Custodian
for Xxxxxx Xxxxxx
Xxxx Xxxxxx
TOTAL 0
=
SCHEDULE III
ROLLOVER SHARES
---------------
STOCKHOLDER NO. OF ROLLOVER SHARES
----------- ----------------------
Xxxxxx X. Xxxxxx 26,250
