INVESTOR AGREEMENT Between HARRIS CORPORATION and HARRIS STRATEX NETWORKS, INC.
Table of Contents
EXHIBIT 10.1
Between
XXXXXX CORPORATION
and
XXXXXX STRATEX NETWORKS, INC.
Dated: January 26, 2007
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TABLE OF CONTENTS
| ARTICLE I | ||||||||
| Definitions and Construction | ||||||||
| 1.1. | Certain Definitions | E-4 | ||||||
| 1.2. | Additional Definitions | E-6 | ||||||
| 1.3. | Terms Generally | E-6 | ||||||
| ARTICLE II | ||||||||
| Scope of Agreement | ||||||||
| 2.1. | Scope of Agreement | E-7 | ||||||
| 2.2. | Governing Instruments and Class B Common Stock | E-7 | ||||||
| ARTICLE III | ||||||||
| Boards of Directors | ||||||||
| 3.1. | Role and Composition of the Board | E-7 | ||||||
| 3.2. | Removal and Vacancies | E-8 | ||||||
| 3.3. | Committees | E-9 | ||||||
| 3.4. | Voting Requirements | E-9 | ||||||
| 3.5. | Determination of Total Voting Power | E-9 | ||||||
| ARTICLE IV | ||||||||
| Covenants | ||||||||
| 4.1. | Standstill Provisions | E-9 | ||||||
| 4.2. | Access to Information, Audit and Inspection | E-9 | ||||||
| 4.3. | Related Party Transactions | E-10 | ||||||
| 4.4. | Freedom of Action | E-10 | ||||||
| 4.5. | Preemptive Right | E-11 | ||||||
| 4.6. | Covenants Relating to Financial, Accounting and Disclosure Matters | E-12 | ||||||
| 4.7. | Option Exercise | E-16 | ||||||
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| ARTICLE V | ||||||||
| Miscellaneous | ||||||||
| 5.1. | Termination | E-16 | ||||||
| 5.2. | Governing Law and Venue; Waiver Of Jury Trial | E-16 | ||||||
| 5.3. | Severability | E-17 | ||||||
| 5.4. | Amendment; Waiver | E-17 | ||||||
| 5.5. | Assignment | E-17 | ||||||
| 5.6. | No Third-Party Beneficiaries | E-18 | ||||||
| 5.7. | Notices | E-18 | ||||||
| 5.8. | Entire Agreement | E-19 | ||||||
| 5.9. | No Challenges; Specific Performance | E-19 | ||||||
| 5.10. | Headings | E-19 | ||||||
| 5.11. | Counterparts | E-19 | ||||||
| 5.12. | Relationship of Parties | E-19 | ||||||
| 5.13. | Construction | E-19 | ||||||
| 5.14. | Effectiveness | E-19 | ||||||
| 5.15. | Enforcement by the Company | E-19 | ||||||
| Exhibit A— | Amended and Restated Certificate of Incorporation | A-1 | ||||||
| Exhibit B— | Amended and Restated Bylaws | B-1 | ||||||
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INVESTOR AGREEMENT
(the “Agreement”), dated as of
January 26, 2007, between XXXXXX CORPORATION, a
Delaware corporation (“Harris”), and XXXXXX
STRATEX NETWORKS, INC., a Delaware corporation (the
“Company”).
WHEREAS, Harris, the Company, and Stratex Networks, Inc., a Delaware
corporation (“Stratex”), and Stratex Merger Corp., a
Delaware Corporation and wholly owned subsidiary of the Company have
entered into an Amended and Restated
Formation, Contribution and Merger Agreement, dated as of
December 18, 2006 as amended by that certain letter agreement,
dated January 26, 2007 (the “Formation
Agreement”), among the parties thereto pursuant to which the Company was formed
to acquire Stratex pursuant to the Merger and to receive the
Contributed Assets from Harris in the Contribution Transaction,
in each case on the terms and subject to the conditions set
forth in the Formation Agreement; and
WHEREAS, Harris and Stratex would not have entered into the
Formation Agreement without the undertakings contained in this
Agreement and the execution and delivery of this Agreement is a
condition to closing under the Formation Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants in the Agreements the parties agree as follows:
ARTICLE I
Definitions and Construction
1.1. Certain Definitions.
All capitalized terms used but not defined in this Agreement
shall have the meanings assigned to them in the Formation
Agreement. In addition, the following terms shall have the
meanings specified below:
“Affiliate” shall have the meaning assigned to
such term by Rule 405 under the Securities Act;
provided, however, that neither the Company nor any of
its Subsidiaries shall be deemed to be an Affiliate of Xxxxxx or
any of its other Subsidiaries.
“Agreements” means, collectively, the Formation
Agreement, the Ancillary Agreements attached thereto as exhibits
and any other agreements provided or contemplated by any of the
foregoing.
“Arm’s Length Terms” means, with respect
to any transaction, terms and conditions for such transaction
that are no less favorable in any material respect to the
Company and its Subsidiaries, taken as a whole, than those which
could have been obtained in an arm’s length negotiation
between informed and willing unrelated parties under no
compulsion to act taking into account all the facts and
circumstances then prevailing; provided, however, that
notwithstanding the foregoing any terms and conditions of a
transaction approved by a majority of the Class A Directors
shall be deemed to be Arm’s Length Terms.
“Audit Independent Director” means any Director
who satisfies the requirements of Rule 4350(d)(2)(A) of the
NASDAQ Rules with respect to the Company.
A Person shall be deemed the “beneficial owner”
of, and shall be deemed to “beneficially own”,
any securities which such Person or any of its Affiliates would
be deemed to “beneficially own” within the meaning of
Rule 13d-3 under
the Exchange Act if the references to “within
60 days” in
Rule 13d-3(d)(1)(i)
were omitted.
“Board” means the board of directors of the
Company.
“Business Day” means any day other than a
Saturday, a Sunday or a day on which banks in The City of New
York are authorized or obligated by Law or executive order to
close.
“Class A Common Stock” means the
Class A Common Stock, par value $0.01, of the Company.
“Class A Director” means any Director
other than a Class B Director.
“Class B Common Stock” means the
Class B Common Stock, par value $0.01, of the Company.
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“Class B Director” means any of the
Initial Xxxxxx Directors, any Director elected by a separate
class vote of the holders of the Class B Common Stock and
any Director appointed to replace or fill any vacancy created by
the removal, resignation, death or incapacity of any
Class B Director.
“Closing Date” means the date on which the
Closing occurred under the Formation Agreement.
“Common Stock” means, collectively, the Class A Common Stock and the Class B Common Stock.
“Director” means any director who is a member
of the Board.
“Exchange Act” shall mean the Securities
Exchange Act of 1934, as amended.
“Fair Market Value” means, with respect to any
transaction, the fair market value of the total consideration
paid or payable for goods or services pursuant to such
transaction.
“Governing Instruments” means, collectively,
the Amended and Restated Certificate of Incorporation and Amended and
Restated By-Laws of the Company
attached hereto as Exhibit A and
Exhibit B, respectively, as they may be amended from
time to time.
“Government Entity” means any domestic or
foreign governmental, regulatory or administrative authority,
agency, instrumentality, commission, body, court or other
entity, whether legislative, executive, judicial or otherwise,
and any arbitration panel, arbitrator or other entity with
authority to resolve any dispute.
“Initial Directors” means, collectively, the
Initial Harris Directors and Initial Stratex Directors.
“Initial Harris Directors” means Xxx X. Xxxxxxxx, Xxxx X.
Xxxxx, Xxxxxx X. Xxxxx, Xx. Xxxxxx Xxxx and Xx. Xxxxx X.
Xxxxxxx.
“Initial Stratex Directors”
means Xxxxxxx X. Xxxxxx, Xxxxxxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxxxx,
and Xxxxxx X. Xxxxxxxx.
“Law” means any federal, state, local or
foreign law, statute, ordinance, rule, regulation, judgment,
order, injunction, decree, arbitration award, agency
requirement, license or permit of any Government Entity.
“Litigation” means any claim, suit, action,
arbitration, inquiry, investigation or other proceeding of any
nature (whether criminal, civil, legislative, administrative,
regulatory, prosecutorial or otherwise) by or before any
arbitrator or Government Entity.
“NASDAQ Rules” means the rules promulgated by
The Nasdaq Stock Market, Inc. which apply to issuers whose
common stock is listed on the Nasdaq Global Market
“Nominee” means, with respect to any Person,
any nominee, custodian or other Person who holds shares of
Common Stock for such Person without investment discretion.
“Person” means any individual, corporation
(including not-for-profit), general or limited partnership,
limited liability company, joint venture, estate, trust,
association, organization, Government Entity or other entity of
any kind or nature.
“Securities Act” shall mean the Securities Act
of 1933, as amended.
“Subsidiary” means, with respect to any Person,
(i) any corporation more than 50% of the outstanding Voting
Power of which is owned, directly or indirectly, by such Person,
any of its other Subsidiaries or any combination thereof or
(ii) any Person other than a corporation in which such
Person, any of its other Subsidiaries or any combination thereof
has, directly or indirectly, majority economic ownership or the
power to direct or cause the direction of the policies,
management and affairs thereof; provided, however, that
notwithstanding the foregoing neither the Company nor any of its
Subsidiaries shall be deemed to be a Subsidiary of Xxxxxx or any
of its other Subsidiaries for purposes of this Agreement.
“Transfer” means to sell, transfer or assign.
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“Total Voting Power” means, at any time, the
total number of votes then entitled to be cast generally in the
election of Class A Directors by all holders of Voting
Securities (including the holders of Class B Common Stock).
“Voting Securities” means, at any time, all
classes of capital stock or other securities of the Company then
outstanding and entitled to vote generally in the election of
the Class A Directors.
1.2. Additional Definitions.
The following terms are defined in the Sections indicated:
| Defined Term: | Section: | |
|
“Additional Voting Rights”
|
2.2 | |
|
“Affiliate Transaction”
|
4.3 | |
|
“Agreement”
|
Introductory Paragraph | |
|
“Annual Financial Statements”
|
4.6(j) | |
|
“Company”
|
Introductory Paragraph | |
|
“Company Auditors”
|
4.6(j) | |
|
“Corporate Opportunity”
|
4.4(c) | |
|
“Delaware Courts”
|
5.2(a) | |
|
“Filing Party”
|
4.6(e) | |
|
“Formation Agreement”
|
Recitals | |
|
“GAAP”
|
4.6(a) | |
|
“Xxxxxx”
|
Introductory Paragraph | |
|
“Xxxxxx Annual Statements”
|
4.6(j) | |
|
“Xxxxxx Auditors”
|
4.6(j) | |
|
“Xxxxxx Entities”
|
4.4(c) | |
|
“Xxxxxx Public Filings”
|
4.6(g) | |
|
“Monthly Exercise Notice”
|
4.5(b) | |
|
“Monthly Offer Notice”
|
4.5(b) | |
|
“Nominating Committee”
|
3.1(b) | |
|
“Non-Competition Agreement”
|
4.4(b) | |
|
“Offered Securities”
|
4.5(a) | |
|
“Offer Notice”
|
4.5(a) | |
|
“Proposed Issuance”
|
4.5(a) | |
|
“Stratex”
|
Recitals | |
|
“Tax Return”
|
4.2(b) | |
|
“Voting Percentage”
|
3.1(c) |
1.3. Terms Generally. The
definitions set forth or referred to above shall apply equally
to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words
“include”, “includes” and
“including” shall be deemed to be followed by the
phrase “without limitation”. All references herein to
Articles, Sections, Exhibits and Schedules shall be deemed to be
references to Articles and Sections of, and Exhibits and
Schedules to, this Agreement unless the context shall otherwise
require. Unless the context shall otherwise require, any
reference to any contract, instrument, statute, rule or
regulation is a reference to it as amended and supplemented from
time to time (and, in the case of a statute, rule or regulation,
to any successor provision). Any reference in this Agreement to
a “day” or a number of “days” (without the
explicit qualification of “Business”) shall be
interpreted as a reference to a calendar day or number of
calendar days.
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ARTICLE II
Scope of Agreement
2.1. Scope of Agreement.
Xxxxxx and the Company desire to set forth in this Agreement
certain terms and conditions upon which Xxxxxx will hold its
equity interests in the Company, including but not limited its
rights as a holder of Class B Common Stock. Solely with
respect to Xxxxxx’ rights as a holder of Class B
Common Stock, if there is any inconsistency between the terms of
this Agreement and the Governing Instruments as a result of any
amendment of this Agreement or otherwise, the parties agree to
take promptly all necessary action to amend the Governing
Instruments to eliminate such inconsistency to the fullest
extent permitted by Law.
2.2. Governing Instruments and
Class B Common Stock. On or prior to the execution and
delivery of this Agreement, Harris and Stratex have caused the
Company to be incorporated under the laws of the State of
Delaware with Governing Instruments in the form attached hereto
as Exhibit A and Exhibit B. As of the
date of this Agreement, Harris owns, directly or indirectly
through its Affiliates, all the outstanding Class B Common
Stock and the shareholders of Stratex immediately prior to the
Effective Time own all the outstanding Class A Common
Stock. Pursuant to the Governing Instruments, the rights and
privileges of the Class A Common Stock and the Class B
Common Stock are identical in all respects except that the
holders of the Class B Common Stock have the additional
right to vote separately as a class to elect, remove and replace
the Class B Directors (the “Additional Voting
Rights”), the right to receive Class B Common
Stock instead of Class A Common Stock in certain
circumstances, the absence of certain duties and obligations
with respect to Corporate Opportunities (as defined in the
Governing Instruments) and preemptive rights consistent with
those granted in Section 4.5 hereof. The holders of
Class B Common Stock also have the right at any time to
exchange (a) any outstanding shares of Class A Common
Stock held by such holder for an equal number of shares of
Class B Common Stock or (b) any outstanding shares of
Class B Common Stock for an equal number of shares of
Class A Common Stock, in each case as provided in the
Governing Instruments. Each outstanding share of Class B
Common Stock shall convert into one outstanding share of
Class A Common Stock automatically and without any further
action by the Company or any other Person if: (i) the
holders of all of the outstanding shares of Class B Common
Stock (assuming that all the outstanding shares of Class A
Common Stock which are then exchangeable for Class B Common
Stock have been so exchanged) are collectively entitled to cast
less than 10% of the Total Voting Power or (ii) such
Class B Common Stock is transferred by a holder to any
Person who is not an Affiliate of such holder or a Nominee of
such holder or one of its Affiliates; provided, however,
that notwithstanding the foregoing no such conversion shall
occur if such transfer is part of a transfer by such holder and
its Affiliates of all of the shares of Class B Common Stock
then owned by them (either directly or through a Nominee (as
defined below)) to any other Person or to any other Person and
its Affiliates. As of the date of this Agreement, the
Class B Common Stock represents 56% of the outstanding
Common Stock determined on a fully diluted basis using the
treasury stock method assuming a market price per share of
Class A Common Stock equal to $20.80.
ARTICLE III
Boards of Directors
3.1. Role and Composition of the
Board. (a) As of the date of this Agreement, the Board
is comprised of nine directors of which the Initial Harris
Directors are the five Class B Directors and the Initial
Stratex Directors are the four Class A Directors. Of the
Initial Harris
Directors, Xxxx X. Xxxxx is
an Audit Independent
Director, Xxxxx X. Xxxxxxx is
not an employee of Harris or any of its Subsidiaries
and Xxx X. Xxxxxxxx is
the chief executive officer of the Company, in each case as of
the date of this Agreement. Of the Initial Stratex
Directors, Xxxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxx are
Audit Independent Directors
and Xxxxxxx X. Xxxxxxx is
the Chairman of the Board, in each case as of the date of this
Agreement. All Directors shall be elected at each annual meeting
of the Company’s shareholders and the Initial Directors
shall serve until their successors are elected at the first such
annual meeting. Until the second anniversary of the date of this
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Agreement, one of the Class B Directors must be an Audit
Independent Director and one of the other Class B Directors
must not be an employee of Xxxxxx or any of its Subsidiaries.
(b) At all times when the holders of all the outstanding
shares of Class B Common Stock (assuming that all the
outstanding shares of Class A Common Stock which are then
exchangeable for Class B Common Stock have been so
exchanged) are collectively entitled to cast a majority of the
Total Voting Power, (i) the Company will rely on the
Controlled Company exemption contained in Rule 4350(c)(5)
of the NASDAQ Rules, (ii) the Board will be comprised of
nine Directors, (iii) the holders of Class B Common
Stock shall be entitled to elect five of the Directors pursuant
to the Additional Voting Rights and the quorum for action by the
Board shall be a majority of the Board, which majority shall
include at least four Class B Directors and (iv) the
remaining four Directors will be Class A Directors
nominated by a nominating committee consisting solely of the
Class A Directors then in office (the “Nominating
Committee”), and elected by the holders of the Common
Stock, voting together as a single class; provided,
however, that at all times when Rule 4350(d)(2)(A) of
the NASDAQ Rules applies to the Company a sufficient number of
the Class A Directors must satisfy the requirements of that
Rule with respect to the Company so that, together with any
Class B Directors which are required or otherwise satisfy
such requirements with respect to the Company, there are enough
Directors to constitute an audit committee of the Board which
complies with the requirements of Rule 4350(d) of the
NASDAQ Rules. Xxxxxx agrees to vote, or caused to be voted, all
Voting Securities owned by it, its Affiliates and their
respective Nominees in favor of the election of the Class A
Directors nominated by the Nominating Committee pursuant to this
Section 3.1(b).
(c) At all times when the holders of all of the outstanding
shares of Class B Common Stock (assuming that all the
outstanding shares of Class A Common Stock which are then
exchangeable for Class B Common Stock have been so
exchanged) are collectively entitled to cast a percentage of the
Total Voting Power (the “Voting Percentage”)
which is less than a majority but equal to or greater than 10%
of the Total Voting Power (i) the Class B Common Stock
shall be entitled to elect pursuant to the Additional Voting
Rights a number of Class B Directors which represents the
Voting Percentage of the total number of Directors then
comprising the entire Board (rounded down to the next whole
number of Directors), and (ii) the remaining Directors will
be Class A Directors nominated by the Nominating Committee
(the composition of which shall comply with the requirements of
Rule 4350(c)(4) of the NASDAQ Rules) and elected by the
holders of the Common Stock, voting together as a single class;
provided, however, that at all times when such rules
apply to the Company a sufficient number of the Class A
Directors must (A) qualify as an Independent Director with
respect to the Company as such term is defined in
Rule 4200(15) of the NASDAQ Rules so that Board complies
with Rule 4350(c)(1) of the NASD Rules and (B) satisfy
the requirements of Rule 4350(d)(2)(A) of the NASDAQ Rules
with respect to the Company so that, together with any
Class B Directors which are required to or otherwise
satisfy such requirements with respect to the Company, there are
enough Directors to constitute an audit committee which complies
with the requirements of Rule 4350(d) of the NASDAQ Rules.
The Nominating Committee will nominate individuals for election
as Class A Directors who comply with the foregoing
requirements and Xxxxxx agrees to vote, or cause to be voted,
all Voting Securities owned by it, its Affiliates and their
respective Nominees in favor of the election of such nominees.
3.2. Removal and Vacancies.
(a) Without limiting Xxxxxx’ obligations under
Section 3.1(a), the holders of the Class B Common
Stock, voting separately as a class, shall have the sole right
to remove the Class B Directors with or without cause at
any time and for any reason and the sole right to elect
successor Directors to fill any vacancies on the Board caused by
any such removals. Any vacancy created by any resignation, death
or incapacity of any Class B Director shall be filled by
the remaining Class B Directors then in office or, if there
are none, by the holders of the Class B Common Stock,
voting separately as a class.
(b) The holders of the Class A Common Stock, voting
separately as a class, shall have the sole right to remove the
Class A Directors without cause and the sole right to
appoint successor Directors to fill any vacancies on the Board
caused by any such removals. Any vacancy created by the
resignation, death or incapacity of any Class A Director
shall be filled by the remaining Class A Directors then in
office or, if
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there are none, by the holders of the Class A Common Stock,
voting separately as a class. Xxxxxx agrees that none of the
shares of Class A Common Stock owned by it, any of its
Affiliates or any of their respective Nominees will be voted for
the removal of any Class A Director without cause and all
such shares will be voted for the election of the individual
nominated by the Nominating Committee to replace any
Class A Director who has been removed with or without cause.
(c) The holders of the Common Stock, voting together as a
single class, shall have the sole right to remove the
Class A Directors for cause and the sole right to elect
successor Directors to fill any vacancies on the Board caused by
any such removals.
3.3. Committees. At all
times, the audit, nominating and compensation committees of the
Board shall comply with the applicable requirements of
Rule 4350 of the NASDAQ Rules (after taking advantage of
all available exemptions for Controlled Companies under such
Rules).
3.4. Voting Requirements.
All actions of the Board must be approved by a majority of a
quorum.
3.5. Determination of Total
Voting Power. Notwithstanding anything in this Agreement to
the contrary, if any transaction or transactions occur which
entitle the holders of Class B Common Stock to preemptive
rights under Section 4.5, then no determination of the
percentage of the Total Voting Power collectively entitled to be
cast by the holders of all the outstanding shares of
Class B Common Stock (assuming that all the outstanding
shares of Class A Common Stock which are then exchangeable
for Class B Common Stock have been so exchanged) shall be
made for any purpose under this Agreement until after the
exercise or expiration of all such preemptive rights in respect
of all such transactions by such holders.
ARTICLE IV
Covenants
4.1. Standstill Provisions.
For a period of two years from the Closing Date, Xxxxxx may not
acquire or dispose of beneficial ownership of any Voting
Securities of the Company through open-market transactions,
third party purchases, business combinations or otherwise except
(i) pursuant to Section 4.5, (ii) as a result of
any actions taken by the Company that do not increase or
decrease the percentage of Voting Power which Xxxxxx and its
Affiliates are entitled to cast in respect of all Voting
Securities beneficially owned by Xxxxxx or (iii) with the
prior approval of a majority of the Class A Directors. From
the second to the fourth anniversary of the Closing Date, Xxxxxx
may not beneficially own Voting Securities which entitle Xxxxxx
and its Affiliates to cast more than 80% of the Voting Power
without the prior approval of a majority of the Class A
Directors. From the second until the fourth anniversary of the
Closing Date, Xxxxxx may not Transfer Voting Securities entitled
to cast a majority of the Voting Power in a single transaction
or series of related transactions if a single Person would
acquire beneficial ownership of all of such Voting Securities or
a portion of such Voting Securities that would entitle such
Person to cast a majority of the Total Voting Power unless
(i) such Transfer is approved in advance by a majority of
the Class A Directors or (ii) such Person offers to
acquire all the Voting Securities then owned by each other
holder of Voting Securities at the same price and on the same
terms and conditions as apply to the Transfer from Xxxxxx.
Notwithstanding the foregoing, nothing in this Section 4.1
shall prohibit or restrict any pro rata dividend or other pro
rata distributions of Voting Securities to Xxxxxx’
shareholders or any bona fide sale to the public of Voting
Securities pursuant to Rule 144 under the Securities Act or
a bona fide registered public offering. For all purposes of this
Agreement, Xxxxxx shall be deemed to beneficially own all Voting
Securities beneficially owned by any of its Affiliates.
4.2. Access to Information,
Audit and Inspection. As long as Xxxxxx continues to
beneficially own Voting Securities that entitle it to cast at
least 20% of the Total Voting Power:
(a) Xxxxxx and its Representatives shall have (and the
Company shall cause its Subsidiaries to provide Xxxxxx and its
Representatives with) full access at reasonable times and during
normal business hours to all the books and records of the
Company and its Subsidiaries and their respective businesses
(including those books and records pertaining to periods prior
to the Closing Date), including the right to
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examine and audit any of such books and records and to make
copies and extracts therefrom. Xxxxxx shall bear all expenses
incurred by it or its Representatives in making any such
examination or audit and will reimburse the Company for all
reasonable
out-of-pocket expenses
incurred by it or its Subsidiaries in connection therewith. The
Company shall, and shall cause each of its Subsidiaries to, make
arrangements for Xxxxxx and its Representatives to have prompt
access at reasonable times and during normal business hours to
its officers, directors and employees to discuss the business
and affairs of the Company and its Subsidiaries and the books
and records pertaining thereto. The provisions of this
Section 4.2(a) shall continue to apply to the Company and
its Subsidiaries and be enforceable by Xxxxxx after Xxxxxx
ceases to beneficially own any Voting Securities of the Company
or Voting Securities of the Company that entitle it to cast at
least 20% of the Voting Power, but only to the extent, in each
case, that such books and records and such access to officers,
directors and other employees are reasonably requested by Xxxxxx
in connection with any pending or threatened Litigation,
proceeding or investigation involving Xxxxxx or any of its
Affiliates insofar as such matter relates to the business or
affairs of the Company or such Subsidiary (including any matters
relating to the business and affairs of any predecessor
businesses, including relating to periods prior to the Closing
Date).
(b) The Company shall provide Xxxxxx with copies of each
completed tax return required to be filed by the Company or any
of its Subsidiaries by applicable Law (each, a “Tax
Return”) at least 20 Business Days prior to the due
date (including any extensions of such due date) of the filing
of such Tax Return, and Xxxxxx may review such Tax Return prior
to its filing with the appropriate Government Entity. The
Company shall consult with Xxxxxx and negotiate in good faith to
resolve any issues arising as a result of the Xxxxxx’
review of such Tax Return. Xxxxxx, the Company and its
Subsidiaries shall use all reasonable good faith efforts to
resolve any issue in dispute as promptly as possible, but in any
event prior to the due date for the filing of such Tax Return.
In the event an issue resulting from the review by Xxxxxx of
such Tax Return remains in dispute as of the due date for the
filing of such Tax Return, the Tax Return shall be filed with
the appropriate Government Entity in accordance with the
recommendation of the Company’s external tax advisors.
4.3. Related Party
Transactions. Xxxxxx will not, and will not permit any of
its Affiliates to, directly or indirectly, enter into any
transaction or series of related transactions (including any
Transfer of any assets or the provision of any goods or
services) with the Company or any of its Subsidiaries (each, an
“Affiliate Transaction”) unless (i) such
Affiliate Transaction is on Arm’s Length Terms and
(ii) if the Affiliate Transaction has a Fair Market Value
of more than $5 million, such Affiliate Transaction shall
have been approved in advance by a majority of the Class A
Directors. The foregoing shall not apply to:
| (i) any issuance of securities to, or other payments, awards or grants of in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, employee benefits, stock options and stock ownership plans approved by the Board, | |
| (ii) the payment of reasonable and customary fees to Directors who are not employees of the Company or any of its Subsidiaries, | |
| (iii) indemnification or insurance arrangements covering directors and officers of the Company and its Subsidiaries, and | |
| (iv) any payments or other transactions pursuant to any tax-sharing agreement between the Company and any other Person with which the Company files a consolidated tax return or with which the Company is part of a consolidated group for tax purposes. |
4.4. Freedom of Action.
(a) Nothing in this Section 4.4 will impair the
Company’s ability to enter into contractual arrangements
with a shareholder of the Company which restrict the shareholder
from engaging in activities otherwise allowed by this Section
and the following provisions shall be subject to the terms of
any such contractual arrangements.
(b) Except as expressly provided in the Non-Competition
Agreement, dated as of the date hereof, among the Company,
Harris and Stratex (the “Non-Competition
Agreement”) or the proviso at the end of
Section 4.4(c), Harris and its Affiliates shall have the
right to, and none of them shall have any
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fiduciary duty or other obligation to the Company, any of its
Subsidiaries or any of their shareholders not to, take any of
the following actions:
| (i) engage in the same or similar activities or lines of business as the Company or any Subsidiary or develop or market any products or services that compete, directly or indirectly, with those of the Company or any of its Subsidiaries; | |
| (ii) invest or own any interest in, or develop a business relationship with, any Person engaged in the same or similar activities or lines of business as, or otherwise in competition with, the Company or any of its Subsidiaries; | |
| (iii) do business with any client or customer of the Company or any of its Subsidiaries; or | |
| (iv) employ or otherwise engage any former officer or employee of the Company or any of its Subsidiaries. |
(c) Neither Xxxxxx nor any of its Affiliates nor any
officer, director, employee or former employee of Xxxxxx or any
of its Affiliates that is not currently an employee of the
Company or any of its Subsidiaries (including any Class B
Directors) shall have any obligation, or be liable, to the
Company, any of its Subsidiaries or any of their shareholders
for or arising out of the conduct described in
Section 4.4(b) or the exercise of Xxxxxx’ rights under
any of the Agreements and none of them shall be deemed to have
acted (i) in bad faith, (ii) in a manner inconsistent
with the best interests of the Company, any of its Subsidiaries
or any of their shareholders or (iii) in a manner
inconsistent with, or opposed to, any fiduciary duty owed by
them to the Company, any of its Subsidiaries or any of their
shareholders by reason of any such conduct or exercise of such
rights or any of their participation therein. If Xxxxxx or any
of its Subsidiaries or any of their directors, officers or
employees, including any such individuals who are also
directors, officers or employees of the Company or any of its
Subsidiaries, (collectively, the “Xxxxxx
Entities”) acquires knowledge of a potential
opportunity, transaction or matter which may be a corporate
opportunity for both Xxxxxx or any of its Subsidiaries, on the
one hand, and the Company or any of its Subsidiaries, on the
other hand, (each, a “Corporate Opportunity”),
then each of the Xxxxxx Entities shall have the right to, and
none of them shall have any fiduciary duty or other obligation
not to, pursue such Corporate Opportunity for itself or to
direct such Corporate Opportunity to any of its Affiliates or to
any third party and none of the Xxxxxx Entities (i) shall
have any duty to communicate, offer or present such Corporate
Opportunity to the Company or any of its Subsidiaries,
directors, officers or employees, (ii) shall have any
liability to the Company, any of its Subsidiaries or any of
their shareholders for breach of any fiduciary duty or other
duty, as a shareholder, director, officer or employee of the
Company or any of its Subsidiaries or otherwise,
(iii) shall be deemed to have acted (x) in bad faith,
(y) in a manner inconsistent with the best interests of the
Company, any of its Subsidiaries or any of their shareholders or
(z) in a manner inconsistent with, or opposed to, any
fiduciary duty owed by them to the Company, any of its
Subsidiaries or any of their shareholders, in each case by
reason of the fact that any Xxxxxx Entity pursues or acquires
such Corporate Opportunity for itself, directs such Corporate
Opportunity to any of its Affiliates or any third party, or does
not communicate information regarding such Corporate Opportunity
to the Company or any of its Subsidiaries, directors, officers
or employees; provided, however, that notwithstanding
anything in this Section 4.4 to the contrary a Corporate
Opportunity offered to a person who is a director or officer of
both the Company and Xxxxxx shall belong to the Company if such
Corporate Opportunity is expressly offered to such person in
writing solely in his or her capacity as a director or officer
of the Company.
(d) The provisions of this Section 4.4 shall be
effective to the maximum extent permitted by Law and are not
intended to be enforceable to any further extent.
4.5. Preemptive Right.
(a) If the Company proposes to issue
(a “Proposed Issuance”) any capital stock
of the Company or any securities convertible into, or
exercisable or exchangeable for, such capital stock
(collectively, the “Offered Securities”) at any
time when the holders of all the outstanding shares of
Class B Common Stock (assuming that all the outstanding
shares of Class A Common Stock which are then exchangeable
for Class B Common Stock have been so exchanged) are
collectively entitled to cast a
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majority of the Total Voting Power, the Company shall give
written notice of the Proposed Issuance to the holders of
Class B Common Stock (the “Offer Notice”)
at least 30 days prior to such issuance. Such notice shall
describe all the material terms and conditions of such Proposed
Issuance. Each holder of Class B Common Stock shall have
the right to acquire at the same price and on the same terms and
conditions, an additional amount of the Offered Securities so
that the percentage of the outstanding Common Stock and Total
Voting Power then owned by such holder shall not change as a
result of such acquisition and Proposed Issuance; provided,
however, that notwithstanding the foregoing (i) such holder
may elect to acquire a lesser number of additional Offered
Securities as it may determine in its sole discretion and
(ii) if the Offered Securities are, or are convertible into
or exercisable or exchangeable for, Class A Common Stock,
then in lieu thereof such holder shall be entitled to purchase
Class B Common Stock or Offered Securities convertible into
or exercisable or exchangeable for Class B Common Stock, as
applicable. If any holder of Class B Common Stock fails to
accept such offer by written notice received by the Company
within fifteen (15) days following the date on which such
holder received the Offer Notice, the Proposed Issuance may be
consummated free and clear of the preemptive right granted to
the holders of Class B Common Stock under this
Section 4.5. Notwithstanding the foregoing, if the purchase
price for any Proposed Issuance is to be paid in whole or in
part other than in cash, then the holders of Class B Common
Stock may pay the purchase price in cash in an amount per
Offered Security equal to the fair market value of the aggregate
non-cash consideration so payable, as reasonably determined in
good faith by the Board, divided by the total number of Offered
Securities to be issued without giving effect to the preemptive
right granted by this Section 4.5.
(b) Notwithstanding the foregoing, the preemptive right
granted by this Section 4.5 shall not apply to any Proposed
Issuance pursuant to any stock option, restricted stock or
employee benefit plan of the Company; provided, however,
at the end of each month the Company shall give the holders of
Class B Common Stock written notice of all such Proposed
Issuances during such month (the “Monthly Offer
Notice”) and each holder of Class B Common Stock
shall have the right, exercisable by delivering written notice
to the Company (each, a “Monthly Exercise
Notice”) within fifteen days after the date on which
such holder received the Monthly Offer Notice, to purchase for
cash a sufficient number of shares of Class B Common Stock
so that the percentage of the outstanding Common Stock and Total
Voting Power then owned by such holder shall not change as a
result of such acquisition and Proposed Issuances; provided,
however, that such holder may elect to acquire a lesser
number of such shares of Class B Common Stock as it may
determine it its sole discretion. The per share purchase price
for any purchase of Class B Common Stock pursuant to a
Monthly Exercise Notice shall be (i) if the Class A
Common Stock is then listed on a national securities exchange or
quoted on an automated inter-dealer quotation system, the
closing price of the Class A Common Stock on the trading
day immediately preceding the date on which the Company received
the Monthly Exercise Notice or (ii) in all other cases, the
fair market value of one share of Class A Common Stock as
determined in good faith by the Board.
4.6. Covenants Relating to
Financial, Accounting and Disclosure Matters. (a) The
Company agrees to comply with the requirements of all of the
following paragraphs of this Section 4.6 other than
paragraph (m) at all times when Xxxxxx is required by
U.S. generally accepted accounting principles
(“GAAP”) to consolidate the Company or any of
its Subsidiaries. The Company agrees to comply with the
requirements of paragraphs (d), (e), (f), (j), (m) and
(n) of this Section 4.6 at all time when Xxxxxx is
required by GAAP to account for its investment in the Company or
any of its Subsidiaries under the equity method of accounting.
(b) Disclosure and Internal Controls. The Company
will (and will cause each of its Subsidiaries to) maintain
effective disclosure controls and procedures and internal
control over financial reporting as defined in
Rule 13a-15 under
the Exchange Act or any similar or successor rule applicable to
Xxxxxx. The Company shall cause each of its principal executive
and principal financial officers to (i) sign and deliver
certifications to its periodic reports and shall include the
certifications in its periodic reports, as and when required
pursuant to Exchange Act
Rule 13a-14 and
Item 601 of
Regulation S-K or
any similar or successor rule applicable to Xxxxxx and
(ii) sign and deliver to Xxxxxx such certification and
representation documents, and to participate in discussions of
related matters, with respect to Xxxxxx’ periodic reports
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under the Exchange Act as Xxxxxx may reasonably request. The
Company shall cause its management to evaluate its disclosure
controls and procedures and internal control over financial
reporting (including any change in internal control over
financial reporting) as and when required pursuant to Exchange
Act Rule 13a-15 or
any similar or successor rule applicable to Xxxxxx. The Company
shall disclose in its periodic reports filed with the SEC
information concerning its management’s responsibilities
for and evaluation of its disclosure controls and procedures and
internal control over financial reporting (including the annual
management report and attestation report of its independent
auditors relating to internal control over financial reporting)
as and when required under Items 307 and 308 of
Regulation S-K and
other applicable SEC rules. Without limiting the general
application of the foregoing, the Company shall (and shall cause
each of its Subsidiaries to) maintain internal systems and
procedures which provide reasonable assurance that (i) its
financial statements are reliable and timely prepared in
accordance with GAAP and applicable Law, (ii) all
transactions of the Company and its Subsidiaries are recorded as
necessary to permit the preparation of their respective
financial statements, (iii) the receipts and expenditures
of the Company and its Subsidiaries are authorized at the
appropriate internal level, and (iv) unauthorized use or
disposition of the assets of any the Company or any of its
Subsidiaries that could have material effect on their financial
statements is prevented or detected in a timely manner. The
Company shall report in reasonable detail to Xxxxxx any of the
following events or circumstances promptly after any executive
officer of the Company or any Director becomes aware of such
matter: (i) any significant deficiency or material weakness
in the design or operation of internal control over financial
reporting that is reasonably likely to adversely affect the
Company’s or any of its Subsidiaries ability to record,
process, summarize and report financial information,
(ii) any fraud, whether or not material, that involves
management or other employees who have a significant role in the
internal control over financial reporting of the Company and its
Subsidiaries, (iii) any illegal act within the meaning of
Section 10A(b) and (f) of the Exchange Act, and
(iv) any report of a material violation of Law that an
attorney representing the Company or any of its Subsidiaries has
formally made to any officers or directors of the Company
pursuant to the SEC’s attorney conduct rules
(17 C.F.R. Part 205).
(c) Fiscal Year, Fiscal Quarter
and Fiscal Monthly Accounting Periods. The Company shall
(and shall cause each of its Subsidiaries to) maintain the same
fiscal year, fiscal quarter and fiscal monthly accounting
periods as Xxxxxx as they may change from time to time.
(d) Quarterly and Annual
Information. The Company shall cooperate with Xxxxxx and use
its commercially reasonable efforts to deliver to Xxxxxx
consolidated quarterly and annual financial statements of the
Company by such dates as Xxxxxx shall reasonably determine in
order to give Xxxxxx reasonable time to review and include such
information in its Quarterly Report on
Form 10-Q or
Annual Report on
Form 10-K, as
applicable. The Company hereby acknowledges that Xxxxxx’
internal policies and procedures will impose certain
requirements on its divisions and subsidiaries with respect to
the type and format of financial information provided to
Xxxxxx’ management at the end of each fiscal quarter and
fiscal year end and that Xxxxxx currently requires such
information to be so provided no later than the eighth (8th)
Business Day following the end of each fiscal quarter and fiscal
year end. The Company acknowledges that Xxxxxx is a Large
Accelerated Filer (as such term is defined in
Rule 12b-2 under
the Exchange Act) and is required to file its Quarterly Reports
on Form 10-Q and
Annual Reports on
Form 10-K with the
SEC on an accelerated basis and must make file such reports with
the SEC before the Company is currently required to file its
Quarterly Reports on
Form 10-Q or
Annual Reports on
Form 10-K or may
be required to file such reports in the future. Senior employees
of the Company and Xxxxxx with responsibility for preparation
and review of SEC filings will actively consult with each other
regarding the details of the Quarterly Reports on
Form 10-Q and
Annual Reports on
Form 10-K to be
filed by the Company and in particular review any changes
(whether or not substantive) that the Company is considering or
plans to make to the most recent draft provided to Xxxxxx before
such documents are filed with the SEC.
(e) Other SEC Filings. Each
of the Company and each of its Subsidiaries which files any
information with the SEC (each, a “Filing
Party”) shall promptly deliver to Xxxxxx: preliminary
and substantially final drafts, as soon as the same are
prepared, of (i) all reports, notices and proxy and
information statements to be sent or made available by such
Filing Party to its security holders, (ii) all
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regular, periodic and other reports (other than those on
Form 10-K or
Form 10-Q) to be
filed or furnished by such Filing Party under Sections 13,
14 and 15 of the Exchange Act, and (iii) all registration
statements and prospectuses to be filed by such Filing Party
with the SEC or any securities exchange pursuant to the listed
company manual (or similar requirements) of such exchange.
Thereafter, senior employees of the Company and Xxxxxx with
responsibility for preparation and review of SEC filings will
actively consult with each other regarding any changes (whether
or not substantive) that the Company may consider making to such
documents before they are filed with, or furnished to, the SEC.
(f) Earnings Releases and
Financial Guidance. Senior employees from the Company and
Xxxxxx with responsibility for such matters shall consult with
each other as to the timing of their annual and quarterly
earnings releases and any interim financial guidance for a
current or future period and the Company shall give Xxxxxx the
opportunity to review and comment on the information contained
in such releases or guidance. The Company shall make reasonable
efforts to issue its respective annual and quarterly earnings
releases at approximately the same time on the same date as
Xxxxxx. No later than eight hours prior to the time and date
(or, if the same will be published before noon, no later than
5 p.m. Melbourne, Florida time on the previous Business
Day) on which the Company intends to publish its regular annual
or quarterly earnings release, any financial guidance for a
current or future period or any other matters that could be
reasonably likely to have a material financial impact on the
earnings, results of operations, financial condition or
prospects of the Company and its Subsidiaries, taken as a whole,
the Company shall use commercially reasonable efforts to deliver
to Xxxxxx copies of substantially final drafts of all press
releases and other statements relating thereto which will be
made available by the Company or any of its Subsidiaries to
employees or public and senior employees with responsibility for
such maters shall consult regarding any changes (other than
typographical or other similar minor changes) to such
substantially final drafts. Immediately following the issuance
thereof, the Company shall deliver to Xxxxxx copies of final
versions of all such press releases and other public statements.
(g) Xxxxxx Public Filings.
The Company shall use its commercially reasonable efforts to
cooperate and to cause its auditors to cooperate with Xxxxxx to
the extent reasonably requested by Xxxxxx in the preparation of
Xxxxxx public earnings or other press releases, Quarterly
Reports on
Form 10-Q, Annual
Reports to Shareholders, Annual Reports on
Form 10-K, Current
Reports on
Form 8-K and any
other proxy, information and registration statements, reports,
notices, prospectuses and any other filings made by Xxxxxx with
the SEC or any national securities exchange or otherwise made
publicly available by or on behalf of Xxxxxx (collectively, the
“Xxxxxx Public Filings”) and Xxxxxx shall
reimburse the Company for all reasonable
out-of-pocket expenses
incurred by the Company or any of its Subsidiaries in connection
therewith. The Company shall use commercially reasonable efforts
to provide to Xxxxxx all information Xxxxxx reasonably requests
in connection with any Xxxxxx Public Filings or that, in the
reasonable judgment of legal advisors to Xxxxxx, is required to
be disclosed or incorporated by reference therein under
applicable Law. The Company shall provide such information in a
timely manner on the dates requested by Xxxxxx (which may be
earlier than the dates on which the Company otherwise would be
required hereunder to have such information available) to enable
Xxxxxx to prepare, print and release all Xxxxxx Public Filings
on such dates as Xxxxxx shall reasonably determine but in no
event later than as required by applicable Law. The Company
shall use its commercially reasonable efforts to cause the
Company Auditors to consent to any reference to them as experts
in any Xxxxxx Public Filings if required under applicable Law.
If and to the extent requested by Xxxxxx, the Company shall
diligently and promptly review all drafts of such Xxxxxx Public
Filings and prepare in a diligent and timely fashion any portion
of such Xxxxxx Public Filing pertaining to the Company. Prior to
any printing or public release of any Xxxxxx Public Filing, an
appropriate executive officer of the Company shall, if requested
by Xxxxxx, certify that the information relating to the Company,
any of its Subsidiaries or any of their businesses in such
Xxxxxx Public Filing is accurate, true, complete and correct in
all material respects. Unless required by Law, the Company shall
not publicly release any financial or other information that
conflicts with the information with respect to the Company, any
of its Subsidiaries or any of their respective businesses that
is included in any Xxxxxx Public Filing without Xxxxxx’
prior written consent. Prior to the release or filing thereof,
Xxxxxx shall provide the Company with a draft of any portion of
a Xxxxxx Public Filing containing information relating
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to the Company, any of its Subsidiaries or any of their
businesses and shall give the Company an opportunity to review
such information and comment thereon.
(h) Company Disclosures.
Nothing in Section 4.6(d), Section 4.6(e),
Section 4.6(f) or Section 4.6(n) shall prevent or
otherwise limit the ability of the Company to make any
disclosure which the Company reasonably believes is necessary to
comply with applicable Law, including any changes to drafts
previously furnished to Xxxxxx. Nothing in Section 4.6(d),
Section 4.6(e), Section 4.6(f) or Section 4.6(n)
shall prevent or otherwise limit the ability of Xxxxxx to make
any disclosure which Xxxxxx reasonably believes is necessary to
comply with applicable Law, including any changes to drafts
previously furnished to the Company.
(i) Consistency of Accounting
Principles, Policies and Practices. All information to be
provided to Xxxxxx by, or with respect to, the Company or any of
its Subsidiaries or controlled Affiliates pursuant to this
Agreement shall be consistent in terms of format, detail and
otherwise with the accounting principles, policies and practices
of Xxxxxx, with such changes therein as may be requested by
Xxxxxx from time to time consistent with changes in such
accounting principles, policies and practices. Subject to the
foregoing, the Company shall give Xxxxxx as much prior notice as
reasonably practicable of any proposed determination of, or any
significant changes in, the Company’s accounting estimates
or accounting principles. Senior employees of Xxxxxx and the
Company with responsibility for accounting and financial
reporting shall consult with each other (and their respective
auditors, if requested) with respect to any such proposed
determination or change. Unless otherwise required by applicable
Law, the Company shall not make any such determination or
changes without the prior written consent of Xxxxxx if such a
determination or change would be sufficiently material to be
required to be disclosed in financial statements or other
disclosure documents filed by the Company or Xxxxxx with the SEC.
(j) Auditors.
Ernst & Young shall initially serve as the independent
certified public accountants of the Company and its Subsidiaries
(the “Company Auditors”). The Company shall
thereafter maintain as the Company Auditors the same firm (and
its affiliated firms) as Xxxxxx appoints to act as the
independent certified public accountants for Xxxxxx and its
Subsidiaries, unless and until the audit committee of the
Company determines in good faith that it is required by Law or
that it is in the best interest of the stockholders of the
Company to appoint a different independent certified public
accountant for the Company than that appointed by Xxxxxx for
Xxxxxx and its Subsidiaries. The Company shall use commercially
reasonable efforts to enable the Company Auditors to complete
their audit such that they may date their opinion on the audited
financial statements of the Company (the “Annual
Financial Statements”) on the same date that
Xxxxxx’ independent certified public accountants (the
“Xxxxxx Auditors”) date their opinion on the
audited annual financial statements of Xxxxxx (the
“Xxxxxx Annual Statements”) and to enable
Xxxxxx to meet its timetable for the printing, filing and public
dissemination of the Xxxxxx Annual Statements, all in accordance
with this Agreement and as required by applicable Law. The
Company shall request that the Company Auditors date their
opinion on the Annual Financial Statements on the same date that
the Xxxxxx Auditors date their opinion on the Xxxxxx Annual
Statements. The Company shall provide to Xxxxxx on a timely
basis all information Xxxxxx reasonably requires to meet its
schedule for the preparation, printing, filing and public
dissemination of the Xxxxxx Annual Statements in accordance with
this Agreement and as required by applicable Law. Without
limiting the generality of the foregoing, the Company shall
provide all required financial information with respect to the
Company and its Subsidiaries to the Company Auditors in a
sufficient and reasonable time and in sufficient detail to
permit the Company Auditors to take all steps and perform all
reviews necessary to provide sufficient assistance to Xxxxxx
Auditors with respect to information to be included or contained
in the Xxxxxx Annual Statements. The Company shall authorize the
Company Auditors to make available to the Xxxxxx Auditors both
the personnel who performed, or are performing, the annual audit
of the Company and work papers related to the annual audit of
the Company, in all cases within a reasonable time prior to the
opinion date for the Company Auditors, so that the Xxxxxx
Auditors are able to perform the procedures they consider
necessary to take responsibility for the work of the Company
Auditors as it relates to the report of the Xxxxxx Auditors on
the Xxxxxx financial statements, all within sufficient time to
enable Xxxxxx to meet its timetable for the printing, filing and
public dissemination of the Xxxxxx Annual Statements.
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(k) Inaccuracies. If Xxxxxx determines in good faith
that there may be an inaccuracy in any financial statements of
the Company or any of its Subsidiaries or any deficiency in the
internal accounting controls or operations of the Company or any
of its Subsidiaries that could materially impact Xxxxxx’
financial statements, then upon request the Company shall
provide to Xxxxxx’ internal auditors access to the books
and records of Xxxxxx and its Subsidiaries so that Xxxxxx may
conduct reasonable audits relating to the financial statements
provided by the Company under this Agreement as well as to the
internal accounting controls and operations of the Company or
any of its Subsidiaries. Xxxxxx shall be responsible for the
fees and expense of its internal auditors in connection with
such audits but shall not be required to reimburse the Company
for any expenses incurred by the Company and its Subsidiaries in
connection therewith.
(l) Information for Equity Accounting Periods. The
Company shall provide to Xxxxxx on a timely basis all
information Xxxxxx reasonably requires to meet its schedule for
the preparation, printing, filing and public dissemination of
the Xxxxxx Annual Statements in accordance with this Agreement
and as required by applicable Law, and without limiting the
generality of the foregoing, the Company shall provide all
required financial information with respect to the Company and
its Subsidiaries to the Company Auditors in a sufficient and
reasonable time and in sufficient detail to permit the Company
Auditors to take all steps and perform all reviews necessary to
provide sufficient assistance to Xxxxxx Auditors with respect to
information to be included or contained in the Xxxxxx Annual
Statements.
(m) Certifications. The Company shall provide to
Xxxxxx certifications from appropriate employees of the Company,
at the times and in form and substance reasonably requested by
Xxxxxx, to provide backup support for any certifications by any
officers of Xxxxxx which are required to be included as part of,
or as an exhibit to, any report filed by Xxxxxx under the
Exchange Act pursuant to
Rule 13a-14 under
the Exchange Act, Item 601 of
Regulation S-K or
any successor or additional rule or regulation; provided,
however, that such employees need only provide such
certifications to the extent they believe they accurately
characterize the matters described therein.
(n) Nonpublic Information. Each party recognizes
that information shared pursuant to this Article IV may
constitute material nonpublic inside information, and will use
commercially reasonable efforts (i) to treat such material
nonpublic information as confidential, (ii) in the case of
Stratex only, not to disclose it to any Person who is not an
employee or director of such party or any of its Subsidiaries or
any of their advisers who need to know such information for
purposes of carrying out the provisions of this
Section 4.6. and (iii) in the case of Xxxxxx only, not
to disclose it to any Person who is not an employee or director
of such party or any of its Subsidiaries or any of their
advisers who need to know such information for purposes of
advising Xxxxxx with respect to its investment in the Company or
carrying out the provisions of this Section 4.6.
4.7. Option Exercise. If and
to the extent the Company shall determine to use the proceeds
from the exercise of any options to acquire Common Stock to
repurchase shares of Class A Common Stock in the market at
the then prevailing market price, at the request of Xxxxxx or
otherwise, such determination or repurchase shall not be deemed
to be an Affiliate Transaction or a breach by Xxxxxx or any
Class B Director of any duty or obligation they may have to
the Company or its stockholders.
ARTICLE V
Miscellaneous
5.1. Termination. This
Agreement shall terminate at the first time at which the Total
Voting Power of Voting Securities owned by Xxxxxx, its
Affiliates and their respective Nominees collectively represent
less than 10% of the Total Voting Power.
5.2. Governing Law and Venue;
Waiver Of Jury Trial. (a) THIS AGREEMENT SHALL BE
DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED,
CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE
STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAW
PRINCIPLES THEREOF. The
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parties hereby irrevocably submit to the jurisdiction of the
courts of the State of Delaware and the Federal courts of the
United States of America located in the State of Delaware
(collectively, the “Delaware Courts”) solely in
respect of the interpretation and enforcement of the provisions
of this Agreement and of the documents referred to in this
Agreement, and in respect of the transactions contemplated
hereby, and hereby waive, and agree not to assert, as a defense
in any action, suit or proceeding for the interpretation or
enforcement hereof or of any such document, that it is not
subject thereto or that such action, suit or proceeding may not
be brought or is not maintainable in any Delaware Court or that
the venue thereof may not be appropriate or that this Agreement
or any such document may not be enforced in or by such courts,
and the parties hereto irrevocably agree that all claims with
respect to such action or proceeding shall be heard and
determined in any Delaware Court; provided, however, that
notwithstanding the foregoing each party agrees that any claim
which primarily seeks injunctive relief and related monetary
claims that cannot be brought in any Delaware Court for
jurisdiction reasons may be commenced, heard and determined in
any other court having proper jurisdiction over such claim. The
parties hereby consent to and grant any Delaware Court
jurisdiction over the person of such parties and, to the extent
permitted by law, over the subject matter of such dispute and
agree that mailing of process or other papers in connection with
any such action or proceeding in the manner provided in
Section 5.7 or in such other manner as may be
permitted by law shall be valid and sufficient service thereof.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH
PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES THIS
WAIVER VOLUNTARILY, AND (IV) EACH PARTY HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.2.
5.3. Severability. If any
provision of this Agreement shall be held to be illegal, invalid
or unenforceable, that provision will be enforced to the maximum
extent permissible so as to effect the intent of the parties,
and the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
If necessary to effect the intent of the parties, the parties
will negotiate in good faith to amend this Agreement to replace
the unenforceable language with enforceable language which as
closely as possible reflects such intent.
5.4. Amendment; Waiver. This
Agreement may be amended or any performance, term or condition
waived in whole or in part only by a writing signed by persons
authorized to so bind each party (in the case of an amendment)
or the waiving party (in the case of a waiver). Any such
amendment or waiver by the Company shall require the prior
approval of a majority of the Class A Directors. No failure
or delay by any party to take any action with respect to a
breach by another party of this Agreement or a default by
another party hereunder shall constitute a waiver of the former
party’s right to enforce any provision of this Agreement or
to take action with respect to such breach or default or any
subsequent breach or default. Waiver by any party of any breach
or failure to comply with any provision of this Agreement by
another party shall not be construed as, or constitute, a
continuing wavier of such provisions, or a waiver of any other
breach of or failure to comply with any other provisions of this
Agreement.
5.5. Assignment. Xxxxxx
shall be entitled to assign all of its rights and obligations
under this Agreement to any Person to whom it transfers all of
the ownership interests in the Company then owned by Xxxxxx and
its Affiliates if such Person delivers a written undertaking to
the Company in which such Person expressly assumes all of
Xxxxxx’ obligations under this Agreement, and from and
after such a
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transfer all references herein to Xxxxxx shall be deemed to be
references to such Person. Except as provided in the immediately
preceding sentence, no party may assign this Agreement or any
rights, benefits, obligations or remedies hereunder without the
prior written consent of the other party hereto, except that no
such consent shall be required for a transfer by operation of
Law in connection with a merger or consolidation of such party.
Any attempt so to assign or to delegate any of the foregoing
without such consent shall be void and of no effect. This
Agreement shall be binding upon, inure to the benefit of and be
enforceable by and against the parties hereto and their
respective successors and permitted assigns. All certificates
representing shares subject to the terms and conditions of this
Agreement shall bear an appropriate legend with respect thereto.
5.6. No Third-Party
Beneficiaries. This Agreement is intended to be for the sole
and exclusive benefit of the parties hereto and their respective
successors and permitted assigns. Nothing contained in this
Agreement is intended or shall be construed to give any other
Person any legal or equitable right, remedy, or claim under or
in respect to this Agreement or any provision herein contained.
5.7. Notices. Any notice,
request, instruction or other document to be given hereunder by
any party to the others shall be in writing and delivered
personally or sent by registered or certified mail or by
overnight courier, postage prepaid, or by facsimile:
| if to Xxxxxx: | |
|
Xxxxxx Corporation 0000 Xxxx XXXX Xxxx. Xxxxxxxxx, XX 00000 Attn: Xxxxx X. Xxxxxx fax: (000) 000-0000 |
|
| with a copy to (which shall not constitute notice): | |
|
Xxxxxxxx & Xxxxxxxx LLP 000 Xxxxx Xxxxxx Xxx Xxxx, XX 00000 fax: (000) 000-0000 Attention: Xxxxxx X. XxXxxxxxx |
|
| if to the Company: | |
|
Xxxxxx Stratex Networks, Inc. Research Triangle Park 000 Xxxxx Xxxxx Xxxxxxxxxxx, XX 00000 Attn: General Counsel fax: (000) 000-0000 |
|
|
with a copy to (which shall not constitute notice): Xxxxxxx XxXxxxxxx LLP 0000 Xxxxxxxxxx Xxxxxx Xxxx Xxxx Xxxx, XX 00000 Attn: Xxxx Xxxxxx fax: (000) 000-0000 |
or to such other Persons or addresses as may be designated in
writing by the party to receive such notice as provided above.
Any notice, request, instruction or other document given as
provided above shall be deemed given to the receiving party upon
actual receipt, if delivered personally; three Business Days
after deposit in the mail, if sent by registered or certified
mail; upon confirmation of successful transmission if sent by
facsimile (provided that if given by facsimile such notice,
request, instruction or other document shall be followed up
within one Business Day by dispatch pursuant to one of the other
methods described
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herein); or on the next Business Day after deposit with a
nationally recognized overnight courier, if sent by a nationally
recognized overnight courier.
5.8. Entire Agreement. This
Agreement, the Non-Competition Agreement, the Registration
Rights Agreement, dated as of the date hereof, between Xxxxxx
and the Company and, solely with respect to the defined terms
therein which are incorporated by reference herein, the
Formation Agreement between Xxxxxx and Stratex constitute the
entire and only agreements between the parties relating to the
subject matter hereof and thereof and any and all prior
arrangements, representations, promises, understandings and
conditions in connection with said matters and any
representations, promises or conditions not expressly
incorporated herein or therein or expressly made a part hereof
or thereof shall not be binding upon any party.
5.9. No Challenges; Specific
Performance. Each of Xxxxxx and the Company hereby
acknowledges and agrees that (a) it will not challenge the
validity of any provision of Articles III or IV hereof
in any Litigation or any other proceeding and (b) because
any breach of the provisions of Articles III or IV
would cause irreparable harm and significant injury that would
be difficult to ascertain and would not be adequately
compensable by damages alone, each party will have the right to
enforce such provisions by injunction, specific performance or
other equitable relief without prejudice to any other rights and
remedies the enforcing party may have. The reference to specific
Articles in this Section is not a waiver of any party’s
rights to seek equitable relief for breaches of other Articles
or Sections.
5.10. Headings. The headings
in this Agreement are included for convenience of reference only
and shall not in any way limit or otherwise affect the meaning
or interpretation of this Agreement.
5.11. Counterparts. This
Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same instrument.
5.12. Relationship of
Parties. Nothing herein contained shall constitute the
parties hereto members of any partnership, joint venture,
association, syndicate, or other entity, or be deemed to confer
on any of them any express, implied, or apparent authority to
incur any obligation or liability on behalf of another party,
except as otherwise expressly provided in any Agreement.
5.13. Construction. This
Agreement has been negotiated by the parties and their
respective counsel in good faith and will be fairly interpreted
in accordance with its terms and without any strict construction
in favor of or against any party. Time shall be of the essence
of this Agreement.
5.14. Effectiveness. This
Agreement shall become effective only when one or more
counterparts shall have been signed by each party and delivered
to each other party
5.15. Enforcement by the
Company. Xxxxxx agrees that a majority of the Class A
Directors shall have the sole and exclusive right to direct the
exercise and enforcement of all rights of the Company hereunder.
[Remainder of Page Intentionally Left Blank]
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Table of Contents
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers
thereunto duly authorized as of the date first above written.
| XXXXXX CORPORATION |
| By | /s/ R. Xxxx Xxxxxxxx |
|
|
|
| Name: R. Xxxx Xxxxxxxx | |
| Title: Vice President, Corporate Technology and Development | |
| XXXXXX STRATEX NETWORKS, INC. |
| By | /s/ Xxx X. Xxxxxxxx |
|
|
|
| Name: Xxx X. Xxxxxxxx | |
| Title: Chief Executive Officer and President |
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Table of Contents
Exhibit
A
Amended
and Restated Certificate of Incorporation
[omitted]
Table of Contents
Exhibit
B
Amended
and Restated Bylaws
[omitted]
