EXHIBIT 10.16
EXECUTION COPY
E-TEK DYNAMICS, INC.
SHAREHOLDERS AGREEMENT
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THIS AGREEMENT is made as of July 23, 1997, by and among E-Tek
Dynamics, Inc., a California corporation (the "Company"), each of the Persons
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listed on the Schedule of Investors attached hereto (the "Investors") and each
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of the Persons listed on the Schedule of Existing Shareholders attached hereto
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(the "Existing Shareholders"). The Investors and the Existing Shareholders are
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collectively referred to herein as the "Shareholders" and individually as a
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"Shareholder." Except as otherwise provided herein, capitalized terms used
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herein are defined in paragraph 9 hereof.
The Investors shall purchase shares of the Company's Class A
Convertible Preferred Stock pursuant to a Recapitalization Agreement, dated as
of June 27, 1997, by and among the Investors, the Founding Shareholders and the
Company (as the same may be amended from time to time in accordance with its
terms, the "Recapitalization Agreement").
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The Existing Shareholders are the holders of shares of the Company's
Common Stock or options to purchase shares of the Company's Common Stock.
The Company and the Shareholders desire to enter into this Agreement
for the purposes, among others, of (i) establishing the composition of the
Company's board of directors (the "Board"), (ii) assuring continuity in the
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management and ownership of the Company and (iii) limiting the manner and terms
by which Shares may be transferred. The execution and delivery of this Agreement
is a condition to the Closing under the Recapitalization Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
1. Board of Directors.
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(a) From and after the Closing (as defined in the Recapitalization
Agreement) and until the provisions of this paragraph 1 cease to be effective,
each holder of Shares shall vote all of his, her or its Shares which are voting
shares and any other voting securities of the Company over which such holder has
voting control and shall take all other necessary or desirable actions within
his, her or its control (whether in his, her or its capacity as a shareholder,
director, member of a board committee or officer of the Company or otherwise,
and including attendance at meetings in person or by proxy for purposes of
obtaining a quorum and execution of written consents in lieu of meetings), and
the Company shall take all necessary or desirable actions within its control
(including calling special board and shareholder meetings), so that:
(i) the authorized number of directors on the Board shall be
established at five (5) directors;
(ii) the following representatives shall be elected to the Board:
(A) one representative designated by the Founding
Shareholders (determined by a vote of the Founding Shareholders owning a
majority of the Shares held by all of the Founding Shareholders) (the
"Founding Director"), with Xxxxxxx Xxxxx Pan serving as the Founding
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Director as of the date hereof;
(B) two representatives designated by the Investors
(determined by a vote of the Investors owning a majority of the Shares held
by all of the Investors) (the "Investor Directors");
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(C) one representative who shall be the Company's Chief
Executive Officer (the "Management Director"); provided that until the
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hiring by the Company of a new Chief Executive Officer following the
Closing, the Management Director Investor shall be designated by the
Founding Shareholders after consultation with the Investor Representative
(determined by a vote of the Founding Shareholders owning a majority of the
Shares held by all of the Founding Shareholders); and provided further
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that, effective upon the hiring by the Company of a new Chief Executive
Officer following the Closing (it being understood that such new Chief
Executive Officer shall be approved by the Board and shall be acceptable to
Xxxxxxx Xxxxx, Pan), the right of the Founding Shareholders under this
subparagraph 1(a)(ii)(C) to designate the Management Director shall forever
terminate, and in such event, upon the written request of the Investor
Representative, each holder of Shares shall vote all of his, her or its
Shares which are voting shares and any other voting securities of the
Company over which such holder has voting control and shall take all other
necessary or desirable action within his, her or its control to remove the
Management Director designated by the Founding Shareholders from the Board
and any Sub Board (as defined below) at the time specified in such written
request and to elect such Chief Executive Officer as a representative to
the Board: and provided further that after such election of the Chief
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Executive Officer to the Board following the Closing, in the event of the
death, disability, resignation or termination for any reason of the Chief
Executive Officer of the Company and until his or her successor has been
elected Chief Executive Officer of the Company, such Management Director
shall be designated by the Shareholders (determined by a vote of the
Shareholders owning a majority of the Shares held by all the Shareholders);
and
(D) one representative (the "Outside Director") designated by
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the Shareholders (determined by a vote of the Shareholders owning a
majority of the Shares held by all of the Shareholders); provided that such
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representative is not a member of the Company's management or an employee
or officer of the Company or its Subsidiaries or a partner, member or
employee of an Investor (other than Broadview Associates, L.L.C.) or a
partner, member or employee of any partner or member of an Investor (other
than Broadview Associates, L.L.C.).
(iii) for so long as any Investor shall hold any Shares, one of the
Investor Directors shall serve as Chairman of the Board having the powers
and duties of such office
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as set forth in the Company's bylaws, with Xxxxxx X. Xxxxxxxxx serving as
Chairman of the Board as of the date hereof;
(iv) the composition of the board of directors of each of the
Company's Subsidiaries (a "Sub Board") shall be the same as that of the
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Board;
(v) (A) a three member Compensation Committee shall be established
and shall include the two Investor Directors and the Founding Director and
(B) any other committees established by the Board or a Sub Board shall be
proportionately equivalent to that of the Board;
(vi) (A) the removal from the Board or a Sub Board (with or without
cause) of the Founding Director shall be at the written request of the
Founding Shareholders (determined by a vote of the Founding Shareholders
owning a majority of the Shares held by all of the Founding Shareholders),
but only upon such written request and under no other circumstances, (B)
the removal from the Board or a Sub Board (with or without cause) of any
Investor Director shall be at the written request of the Investors
(determined by a vote of the Investors owning a majority of the Shares held
by all of the Investors), but only upon such written request and under no
other circumstances, (C) the removal from the Board or a Sub Board (with or
without cause) of the Management Director (prior to the hiring by the
Company of a new Chief Executive Officer following the Closing) shall be at
the written request of the Founding Shareholders (determined by a vote of
the Founding Shareholders owning a majority of the Shares held by all of
the Founding Shareholders), but only upon such written request and under no
other circumstances, and the removal from the Board or a Sub Board (with or
without cause) of the Management Director (after the hiring by the Company
of a new Chief Executive Officer following the Closing) shall be at the
written request of the Shareholders (determined by a vote of the
Shareholders owning a majority of the Shares held by all of the
Shareholders), but only upon such written request and under no other
circumstances and (D) the removal from the Board or a Sub Board (with or
without cause) of the Outside Director shall be at the written request of
the Shareholders (determined by a vote of the Shareholders owning a
majority of the Shares held by all of the Shareholders), but only upon such
written request and under no other circumstances; and
(vii) (A) in the event that the Founding Director ceases to serve as
a member of the Board or a Sub Board during his or her term of office, the
resulting vacancy on the Board or a Sub Board shall be filled by a
representative designated as provided in subparagraph (ii)(A) above, (B) in
the event that any Investor Director ceases to serve as a member of the
Board or a Sub Board during his or her term of office, the resulting
vacancy on the Board or a Sub Board shall be filled by a representative
designated as provided in subparagraph (ii)(B) above, (C) in the event that
the Management Director ceases to serve as a member of the Board or a Sub
Board during his or her term of office, the resulting vacancy on the Board
or a Sub Board shall be filled by a representative designated as provided
in subparagraph (ii)(C) above, and (D) in the event that the Outside
Director ceases to serve as a member of the Board or a Sub Board during his
or her term of office, the resulting vacancy on the Board or a Sub Board
shall be filled by a representative designated as provided in subparagraph
(ii)(D) above.
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(b) The Company shall pay the reasonable out-of-pocket expenses
incurred by each director in connection with attending the meetings of the Board
or a Sub Board and any committees thereof. So long as any Investor Director or
Founding Director serves on the Board or a Sub Board, the Company's Articles of
Incorporation and bylaws shall provide for indemnification and exculpation of
directors to the fullest extent permitted under applicable law.
(c) If any party fails to designate a representative to fill a
directorship pursuant to the terms of this paragraph 1, the individual
previously holding such directorship shall be elected to such position, or if
such individual fails or declines to serve, the election of an individual to
such directorship shall be accomplished in accordance with the Company's
Articles of Incorporation and bylaws and applicable law; provided that the
Shareholders shall vote to remove such individual if the party or parties which
failed to designate such directorship so direct.
(d) The rights of the Founding Shareholders under this paragraph 1
shall terminate at such time as the Founding Shareholders and the members of the
Founding Shareholders' Family Group shall hold less than 25% of the Shares held
by the Founding Shareholders immediately following the Closing. In such event
(i) at the written request of the Investor Representative, each holder of Shares
shall vote all of his, her or its Shares which are voting shares and any other
voting securities of the Company over which such holder has voting control and
shall take all other necessary or desirable action within his, her or its
control to remove the Founding Director from the Board and any Sub Board at the
time specified in such written request and (ii) thereafter, the representative
to fill such directorship shall be designated by the holders of Common Stock in
accordance with the Articles of Incorporation.
(e) The provisions of this paragraph 1 shall terminate automatically
and shall be of no further force and effect upon the consummation of a Public
Offering.
2. Representations and Warranties. Each Shareholder represents and
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warrants that (i) this Agreement has been duly authorized, executed and
delivered by such Shareholder and constitutes the valid and binding obligation
of such Shareholder, enforceable in accordance with its terms, and (ii) such
Shareholder has not granted and is not a party to any proxy, voting trust or
other agreement which is inconsistent with, conflicts with or violates any
provision of this Agreement. No holder of Shares shall grant any proxy or become
party to any voting trust or other agreement which is inconsistent with,
conflicts with or violates any provision of this Agreement.
3. Restrictions on Transfer of Shares.
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(a) General. No holder of Shares shall sell, transfer, assign, pledge
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or otherwise dispose of (whether with or without consideration and whether
voluntarily or involuntarily or by operation of law) any interest in any Shares
(a "Transfer"), except pursuant to a Public Sale or an Approved Sale (an "Exempt
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Transfer") or in accordance with the provisions of this paragraph 3. Prior to
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making any Transfer other than an Exempt Transfer, each Existing Shareholder
transferring any Shares (a "Transferring Shareholder") shall deliver a written
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notice (a "Sale Notice") to the Company and the Other Shareholders in order to
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allow the Company and the Other Shareholders to exercise the rights granted
pursuant to paragraphs 3(b) and 3(c) below. Prior to making any transfer other
than an Exempt Transfer, each Investor transferring any shares of Common Stock
(a "Transferring Shareholder") shall deliver a written notice (a "Sale Notice")
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to the Founding
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Shareholders and the other Investors in order to allow the Founding Shareholders
and the other Investors to exercise the rights granted pursuant to paragraph
3(c) below. The Sale Notice shall disclose in reasonable detail the identity of
the prospective transferee(s), the number of Shares to be transferred and the
terms and conditions of the proposed Transfer. In no event shall any Transfer of
Shares pursuant to this paragraph 3 be made by any Existing Shareholder (i) to
any Person which engages in any business which is competitive with any business
of the Company or any of its Subsidiaries or any business proposed to be engaged
in by the Company or any of its Subsidiaries as of the date of such Transfer or
to any Person which directly or indirectly holds any interest in any such Person
or (ii) for any consideration other than cash payable upon consummation of such
Transfer or in installments over time. No Shareholder shall consummate any
Transfer until 30 days after the Sale Notice has been given to the Company and
the Other Shareholders (the "Election Period"), unless the parties to the
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Transfer have been finally determined pursuant to this paragraph 3 prior to the
expiration of such 30-day period. The date of the first to occur of such events
is referred to herein as the "Authorization Date."
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(b) First Refusal Rights Applicable to Existing Shareholders. The
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Company may elect to purchase all or any portion of an Existing Shareholder's
Shares to be transferred upon the same terms and conditions as those set forth
in the Sale Notice by delivering a written notice of such election to such
Existing Shareholder and the Investors within 20 days after the Sale Notice has
been delivered to the Company. If the Company has not elected to purchase all of
such Existing Shareholder's Shares to be transferred, the Other Shareholders may
elect to purchase the remaining Shares to be transferred upon the same terms and
conditions as those set forth in the Sale Notice by delivering written notice of
such election to such Existing Shareholder within 25 days after the Sale Notice
has been given to the Other Shareholders. If more than one of the Other
Shareholders elects to purchase such Shares, the Shares to be sold shall be
allocated among the Other Shareholders pro rata according to the number of
Shares owned by each such Other Shareholder. If the Company and/or the Other
Shareholders have not elected to purchase all of such Existing Shareholder's
Shares specified in the Sale Notice, such Existing Shareholder may Transfer the
Shares specified in the Sale Notice, subject to the provisions of paragraph 3(c)
below, at a price and on terms no more favorable to the transferee(s) thereof
than specified in the Sale Notice during the 30-day period immediately following
the Authorization Date. Any such Existing Shareholder's Shares not transferred
within such 30-day period shall be subject to the provisions of this paragraph 3
upon subsequent Transfer. If the Company or any of the Other Shareholders have
elected to purchase any Shares hereunder, the Transfer of such shares shall be
consummated as soon as practical after the delivery of the election notice(s) to
the Transferring Shareholder, but in any event within 15 days after the
expiration of the Election Period. The Company and/or the Investors may assign
their rights under this paragraph 3(b) to one or more designees.
(c) Participation Rights. If the Company and/or the Other
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Shareholders have not elected to purchase all of the Shares to be transferred by
an Existing Shareholder pursuant to paragraph 3(b) above, or in the event of a
Transfer of shares of Common Stock by an Investor, each Other Shareholder may
elect to participate in the contemplated Transfer by delivering written notice
to the Transferring Shareholder and the Company within 30 days after receipt by
such Other Shareholder of the Sale Notice. If any Other Shareholders have
elected to participate in such Transfer, the Transferring Shareholder and the
electing Other Shareholders shall be entitled to sell in the contemplated
Transfer, at the same price and on the same terms, a number of shares of Common
Stock equal to the product of (i) the quotient determined by dividing the
percentage of
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Shares owned by such Person by the aggregate percentage of Shares owned by the
Transferring Shareholder and all electing Other Shareholders and (ii) the number
of shares of Common Stock to be sold in the contemplated sale.
For example, if the Sale Notice contemplated a sale of 100 shares
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of Common Stock, and if the Transferring Shareholder was at such
time the owner of 30% of all Shares and if one Other Shareholder
elected to participate and such Other Shareholder owned 20% of
all Shares, the Transferring Shareholder would be entitled to
sell 60 shares of Common Stock (30% divided by 50% x 100 shares
of Common Stock) and the electing Other Shareholder would be
entitled to sell 40 shares of Common Stock (20% divided by 50% x
100 shares of Common Stock).
The Transferring Shareholder shall use his, her or its best efforts to obtain
the agreement of the prospective transferee(s) to the participation of the Other
Shareholders in the contemplated Transfer and shall not Transfer any shares of
Common Stock to the prospective transferee(s) if such transferee(s) refuses to
allow the participation of the Other Shareholders. Each Shareholder transferring
shares of Common Stock pursuant to this paragraph 3(c) shall pay its pro rata
share (based on the number of shares of Common Stock to be sold) of the expenses
incurred by the Shareholders in connection with such Transfer and shall be
obligated to join on a pro rata basis (based on the number of shares of Common
Stock to be sold) in any indemnification or other obligations that the
Transferring Shareholder agrees to provide in connection with such Transfer
(other than any such obligations that relate specifically to a particular
Shareholder such as indemnification with respect to representations and
warranties given by a Shareholder regarding such Shareholder's title to and
ownership of shares of Common Stock).
(d) Certain Permitted Transfers. The restrictions contained in this
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paragraph 3 shall not apply with respect to any Transfer of Shares by any
Shareholder (i) in the case of any Shareholder which is an individual, pursuant
to applicable laws of descent and distribution or among such Shareholder's
Family Group and, in the case of the Founding Shareholders (other than any
Permitted Transferees), the Transfer of not more than 6,000,000 Shares (as such
number shall be proportionately adjusted for any subsequent stock splits,
combinations or dividends or similar events) to one or more charitable remainder
trusts, charitable lead trusts or charitable foundations established by the
Founding Shareholders (other than any Permitted Transferees) or (ii) in the case
of an Investor, among its Affiliates or among any of the other Investors or
their Affiliates (collectively referred to herein as "Permitted Transferees");
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provided that such restrictions shall continue to be applicable to the Shares
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after any such Transfer and the transferees of such Shares shall agree in
writing to be bound by the provisions of this Agreement as a condition precedent
to any such Transfer and shall (if requested by the Company or the Investors in
connection with a Transfer pursuant to clause (i) above) deliver an opinion of
counsel to the Company and the Investors (which counsel and form and substance
of opinion shall be acceptable to the Company and the Investors) to the effect
that this Agreement shall thereafter constitute a valid and binding obligation
of such transferee, enforceable in accordance with its terms. As an additional
condition precedent to the Transfer of any Shares to any member of the Founding
Shareholders' Family Group, the transferee of such Shares shall agree in writing
to be bound by the provisions of Paragraph 8B of the Recapitalization Agreement
as though such transferee was substituted as a "Shareholder" thereunder and
shall (if requested by the Company or the Investors in connection with a
Transfer pursuant to clause (i) above) deliver an opinion of counsel to the
Company and the Investors (which
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counsel and form and substance of opinion shall be acceptable to the Company and
the Investors) to the effect that such transferee's obligations under the
Recapitalization Agreement shall thereafter constitute a valid and binding
obligation of such transferee, enforceable in accordance with its terms. An
individual Shareholder's "Family Group" means such Shareholder's spouse,
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descendants, antecedents and siblings (whether natural or adopted) or any trust,
family partnership or other entity established solely for the benefit of such
Shareholder and/or such Shareholder's spouse and/or descendants or antecedents
or siblings. An Investor's "Affiliate" means any other Person directly or
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indirectly controlling, controlled by or under common control with such
Investor, any partner of an Investor which is a partnership, any member of an
Investor which is a limited liability company and any partner or member of any
partner or member of an Investor. Notwithstanding the foregoing, no party hereto
shall avoid the provisions of this Agreement by making one or more transfers to
one or more Permitted Transferees and then disposing of all or any portion of
such party's interest in any such Permitted Transferee.
(e) Termination of Restrictions. The restrictions set forth in this
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paragraph 3 shall continue with respect to each Share following any Transfer
thereof (other than an Exempt Transfer or a Transfer to the Company or an
Investor or its designee pursuant to paragraph 3(b) above or a Transfer pursuant
to paragraph 3(c) above); provided that all such restrictions shall terminate
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upon the consummation of a Public Offering.
4. Holdback Agreement. No Shareholder shall effect any public sale
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or distribution of any Shares or of any other capital stock or equity securities
of the Company, or any securities convertible into or exchangeable or
exercisable for such stock or securities, during the seven days prior to the
date of any proposed registered public offering of the Company's Common Stock as
set forth in a written notice delivered to such Shareholder at least seven days
prior to such date (or of which such Shareholder is otherwise aware at least
seven days prior to such date) and during the 180-day period beginning on the
effective date of the Company's initial public offering of its Common Stock
under the Securities Act or during the seven days prior to the date of any
proposed registered public offering of the Company's Common Stock as set forth
in a written notice delivered to such Shareholder at least seven days prior to
such date (or of which such Shareholder is otherwise aware at least seven days
prior to such date) and the 90-day period beginning on the effective date of (A)
the next registered public offering of the Company's Common Stock and (B) any
underwritten Demand Registration or any underwritten Piggyback Registration (as
such terms are defined in the Registration Agreement dated as of the date hereof
between the Investors, the Founding Shareholders and the Company), unless the
underwriters managing the registration otherwise agree. The restrictions on
transfer set forth in this paragraph 4 shall continue with respect to each Share
until the date on which such Share has been transferred in a Public Sale.
5. Sale of the Company.
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(a) Each Existing Shareholder hereby appoints the Investor
Representative as his, her or its true and lawful proxy and attorney-in-fact,
with full power of substitution, to vote all of his, her or its Shares and other
voting securities of the Company for the approval and consummation of an
Approved Sale and all such other matters as expressly provided for in this
paragraph 5. The proxies and powers granted by each Existing Shareholder
pursuant to this paragraph 5(a) are (or, in the case of any subsequent proxies,
will be) coupled with an interest and are (or, in the case of any subsequent
proxies, will be) granted in accordance with the provisions of Section 705 of
the California
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Corporations Code and shall each be valid (and irrevocable) for a period of
eleven (11) months following the Closing. The proxies and powers granted by each
Existing Shareholder pursuant to this paragraph 5(a) (and any subsequent proxies
and powers granted by the Existing Shareholders as contemplated below) may, at
the request of the Investor Representative, be embodied in one or more separate
instruments containing terms consistent with the terms set forth in this
paragraph 5(a), and in such case each Existing Shareholder agrees to promptly
execute and deliver each such separate instrument or instruments. The proxies
and powers described above shall not be valid after the expiration of eleven
(11) months following the Closing. No Existing Shareholder shall thereafter be
obligated to again appoint the Investor Representative as his, her or its true
and lawful proxy and attorney-in-fact for an additional eleven (11) month period
or periods to vote all of his, her or its Shares or other voting securities of
the Company for the approval and consummation of any Approved Sale and such
other matters as expressly provided for in this paragraph 5; provided, however,
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that if any such Existing Shareholder fails for any reason to do so upon the
expiration of any such eleven (11) month period or periods, all of such Existing
Shareholders rights (but not obligations) under this Agreement and the
Registration Agreement shall automatically and forever thereafter terminate and
shall be of no further force and effect.
(b) For purposes of this Agreement, an "Approved Sale" shall mean any
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sale of all or substantially all (or any agreement to sell all or substantially
all) of the Company's assets determined on a consolidated basis or any sale or
exchange of all or substantially all (or any agreement to sell or exchange all
or substantially all) of the Company's outstanding capital stock (whether by
merger, sale, recapitalization, consolidation, reorganization, combination or
otherwise) to any Person or Persons which is approved by the Board and the
holders of a majority of the Shares then held by the Investors; provided that no
such transaction or contemplated transaction shall constitute an Approved Sale
hereunder unless: (i) upon the consummation of the Approved Sale, all of the
holders of Common Stock and Preferred Stock (on an as converted to Common Stock
basis) shall receive the same form and amount of consideration per share of
Common Stock, or if any holders of Common Stock or Preferred Stock are given an
option as to the form and amount of consideration to be received, all holders
shall be given the same option; and (ii) all holders of Shares representing then
currently exercisable rights to acquire shares of Common Stock (including all
holders of Preferred Stock) shall be given an opportunity to either (A) exercise
such rights (including conversion rights in the case of the holders of Preferred
Stock) prior to the consummation of the Approved Sale and participate in such
sale as holders of Common Stock or (B) upon the consummation of the Approved
Sale, receive in exchange for such rights consideration equal to the amount
determined by multiplying (1) the same amount of consideration per share of
Common Stock received by the holders of Common Stock in connection with the
Approved Sale less the exercise price (if any) per share of Common Stock of such
rights to acquire Common Stock by (2) the number of shares of Common Stock
represented by such then currently exercisable rights, and in the case of both
clause (A) and clause (B) above, such holders of rights to acquire shares of
Common Stock shall also receive upon the exercise or exchange of such rights
such additional consideration, if any, as may be payable in connection with such
exercise or exchange (including, with respect to the Preferred Stock, all
accrued and unpaid dividends thereon payable pursuant to the terms of the
Articles of Incorporation). If the Approved Sale is structured as a sale of
stock, each holder of Shares shall agree to sell all of his, her or its Shares
and rights to acquire Shares on the terms and conditions approved by the Board
and the holders of a majority of the Shares held by the Investors.
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(c) Each holder of Shares shall bear his, her or its pro-rata share
(based upon the number of Shares held by such holder) of the costs of any
Approved Sale to the extent such costs are incurred for the benefit of all
holders of Shares and are not otherwise paid by the Company or the acquiring
party and shall be obligated to join on a pro rata basis (based on the number of
Shares held by such holder) in any indemnification or other obligations that the
holders of a majority of the Shares agree to provide in connection with such
Approved Sale (other than any such obligations that relate specifically to a
holder of Shares such as indemnification with respect to representations and
warranties given by a holder regarding such holder's title to and ownership of
Shares).
(d) The provisions of this paragraph 5 shall terminate upon the
consummation of a Public Offering.
6. First Refusal Rights Applicable to Issuances of Common Stock.
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(a) Except for issuances of Common Stock (a) to the Company's and any
of its Subsidiaries' employees, consultants, lenders, lessors or other creditors
as approved by the Board or the Compensation Committee (including pursuant to
options or other rights to acquire Common Stock approved by the Board or the
Compensation Committee), (b) in connection with the acquisition of another
company or business or (c) pursuant to a Public Offering, if the Company
authorizes the issuance or sale of any shares of Common Stock or any securities
(including debt securities) containing options or rights to acquire any shares
of Common Stock (other than as a dividend on the outstanding shares of Common
Stock) or any securities exchangeable for or convertible into Common Stock or
such securities exchangeable for or convertible into Common Stock, the Company
shall first offer to sell to each Investor holding any Shares and to each of the
Founding Shareholders holding any Shares, a portion of such shares or securities
equal to the quotient determined by dividing (1) the number of shares of Common
Stock held by such Person (including the number of shares of Common Stock
issuable upon conversion of the Preferred Stock) by (2) the total number of
shares of Common Stock then outstanding (including the number of shares of
Common Stock issuable upon conversion of the Preferred Stock). Each Investor and
each of the Founding Shareholders shall be entitled to purchase such shares or
securities at the most favorable price and on the most favorable terms as such
shares or securities are to be offered or sold to any other Persons; provided
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that if all Persons entitled to purchase or receive such stock or securities are
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required to also purchase other securities of the Company, each Investor and
each of the Founding Shareholders exercising their rights pursuant to this
paragraph shall also be required to purchase the same strip of securities (on
the same terms and conditions) that such other Persons are required to purchase.
The purchase price for all shares and securities offered to the Investors and
the Founding Shareholders shall be payable in cash or, to the extent otherwise
consistent with the terms offered to any other Persons, installments over time.
(b) In order to exercise its purchase rights hereunder, an Investor
or a Founding Shareholder must within 20 days after receipt of written notice
from the Company describing in reasonable detail the shares or securities being
offered, the purchase price therefor, the payment terms and such Investor's or
such Founding Shareholder's percentage allotment, deliver a written notice to
the Company describing its election hereunder. If all of the shares and
securities offered to the Investors and the Founding Shareholder are not fully
subscribed by the Investors and the Founding Shareholder, the remaining stock
and securities shall be reoffered by the Company to any of the Investors or the
Founding Shareholder purchasing such Person's full allotment upon the terms
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set forth in this paragraph, except that such holders must exercise their
purchase rights within five days after receipt of such reoffer.
(c) Upon the expiration of the offering periods described above, the
Company shall be entitled to sell such shares or securities which the Investors
and the Founding Shareholders have not elected to purchase during the 60 days
following such expiration on terms and conditions no more favorable to the
purchasers thereof than those offered to the Investors and the Founding
Shareholders. Any shares or securities offered or sold by the Company after such
60-day period must be reoffered to the Investors and the Founding Shareholders
pursuant to the terms of this paragraph 6.
(d) The rights of the Investors and the Founding Shareholder under
this paragraph 6 shall terminate upon the consummation of a Public Offering.
7. Legend. Each certificate evidencing Shares and each certificate
------
issued in exchange for or upon the Transfer of any Shares (if such shares remain
Shares after such Transfer) shall be stamped or otherwise imprinted with a
legend in substantially the following form:
"The securities represented by this certificate are subject to a
Shareholders Agreement dated as of July 23, 1997, among the
issuer of such securities (the "Company") and certain of the
-------
Company's shareholders, as amended and modified from time to
time. A copy of such Shareholders Agreement shall be furnished
without charge by the Company to the holder hereof upon written
request."
The Company shall imprint such legend on certificates evidencing Shares
outstanding as of the date hereof. The legend set forth above shall be removed
from the certificates evidencing any shares which cease to be Shares in
accordance with paragraph 9 hereof.
8. Transfers; Future Sales. Prior to any holder of Shares
-----------------------
Transferring any Shares (other than pursuant to an Exempt Transfer) to any
Person and prior to the Company issuing any Common Stock (other than pursuant to
a Public Offering) or any options or other rights to acquire Common Stock or any
securities convertible into or exchangeable for such Common Stock to any Person,
such holder or the Company, as the case may be, shall cause the prospective
transferee to be bound by this Agreement and to execute and deliver to the
Company and the other Shareholders a counterpart of this Agreement; provided
--------
that the failure to cause any such transferee to comply with the foregoing shall
----
not terminate or otherwise modify this Agreement. Transferees of Shares held by
Investors shall be deemed to be Investors hereunder. Transferees of Shares held
by Existing Shareholders (other than the Investors or their designees, who shall
be deemed to be Investors hereunder) and transferees of Common Stock (or options
or other rights to acquire Common Stock or securities convertible into or
exchangeable for such Common Stock) issued by the Company shall be deemed to be
Existing Shareholders hereunder (except that no such transferees from the
Existing Shareholders or the Company shall have the right to participate in any
sale of shares of Common Stock by the Investors pursuant to paragraph 3(c)
above). The provisions of this paragraph 8 shall terminate upon the consummation
of a Public Offering.
-10-
9. Definitions.
-----------
"Articles of Incorporation" means the Company's Amended and Restated
-------------------------
Articles of Incorporation as in effect from time to time.
"Closing" has the meaning given such term in the Recapitalization
-------
Agreement.
"Common Stock" means the Company's common stock, no par value per
------------
share.
"Founding Shareholders" means those Persons identified with an
---------------------
asterisk on the Schedule of Existing Shareholders attached hereto and their
---------------------------------
Permitted Transferees (except that, for purposes of paragraphs 1 and 6 above and
paragraph 11 below, the term "Founding Shareholders" shall only mean those
Persons identified with an asterisk on the Schedule of Existing Shareholders
---------------------------------
attached hereto).
"Investor Representative" means Summit/E-Tek Holdings, L.L.C.
-----------------------
"Other Shareholders" means the Investors and the Founding
------------------
Shareholders.
"Person" means an individual, a partnership, a corporation, a limited
------
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Preferred Stock" means the Company's Class A Convertible Preferred
---------------
Stock, no par value per share.
"Public Offering" means any offering by the Company of its Common
---------------
Stock to the public pursuant to an effective registration statement under the
Securities Act or any comparable statement under any similar federal statute
then in force.
"Public Sale" means any sale of Shares to the public pursuant to an
-----------
offering registered under the Securities Act or to the public through a broker,
dealer or market maker pursuant to the provisions of Rule 144 adopted under the
Securities Act (or any similar provision then in force).
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time.
"Shares" means (i) any Common Stock purchased or otherwise acquired or
------
held by any Shareholder, (ii) any Common Stock issued or issuable directly or
indirectly upon the conversion, exercise or exchange of any securities purchased
or otherwise acquired by any Shareholder which are convertible into or
exercisable or exchangeable for Common Stock (including the Preferred Stock and
any stock options granted by the Company) and (iii) any capital stock or other
equity securities issued or issuable directly or indirectly with respect to the
securities referred to in clauses (i) or (ii) above by way of a stock dividend
or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization. As to any particular securities
constituting Shares hereunder, such securities shall cease to be Shares when
they have been (x) effectively registered under the Securities Act and disposed
of in accordance with the
-11-
registration statement covering them or (y) sold to the public through a broker,
dealer or market maker pursuant to Rule 144 (or any similar provision then in
force) under the Securities Act.
"Subsidiary" means, with respect to any Person, any corporation,
----------
limited liability company, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more Subsidiaries
of that Person or a combination thereof, or (ii) if a limited liability company,
partnership, association or other business entity, a majority of the limited
liability company, partnership or other similar ownership interest thereof is at
the time owned or controlled, directly or indirectly, by that Person or one or
more Subsidiaries of that Person or a combination thereof. For purposes hereof,
a Person or Persons shall be deemed to have a majority ownership interest in a
limited liability company, partnership, association or other business entity if
such Person or Persons shall be allocated a majority of limited liability
company, partnership, association or other business entity gains or losses or
shall be or control the managing director, managing member or general partner of
such limited liability company, partnership, association or other business
entity.
10. Financial Statements and Other Information. So long as any
------------------------------------------
Investor or Founding Shareholder holds any Shares, the Company shall deliver to
such Investor or Founding Shareholder, as the case may be:
(a) as soon as available but in any event within 30 days after the
end of each monthly accounting period in each fiscal year, unaudited
consolidating and consolidated statements of income and cash flows of the
Company and its Subsidiaries for such monthly period and for the period from the
beginning of the fiscal year to the end of such month, and unaudited
consolidating and consolidated balance sheets of the Company and its
Subsidiaries as of the end of such monthly period, setting forth in each case
comparisons to the corresponding period in the preceding fiscal year, and all
such statements shall be prepared in accordance with generally accepted
accounting principles, consistently applied (subject to the absence of footnote
disclosures and normal recurring year-end adjustments) and shall be certified by
the Company's chief financial officer; and
(b) within 90 days after the end of each fiscal year, consolidating
and consolidated statements of income and cash flows of the Company and its
Subsidiaries for such fiscal year, and consolidating and consolidated balance
sheets of the Company and its Subsidiaries as of the end of such fiscal year,
setting forth in each case comparisons to the preceding fiscal year, all
prepared in accordance with generally accepted accounting principles,
consistently applied, and accompanied by (A) an opinion with respect to the
consolidated financial statements of an independent accounting firm of
recognized national standing containing no exceptions or qualifications (except
for qualifications regarding specified contingent liabilities), and (B) a copy
of such firm's annual management letter to the Board.
11. Inspection Rights. The Company shall permit any representatives
-----------------
designated by any Investor holding more than 300,000 Shares and any Founding
Shareholder (so long as such Investor or Founding Shareholder holds any Shares),
upon reasonable notice and during normal business hours and at such other times
as any such holder may reasonably request (and, in the Company's discretion,
subject to the execution of a satisfactory confidentiality agreement), to visit
-12-
and inspect any of the properties of the Company and its Subsidiaries and
examine the corporate and financial records of the Company and its Subsidiaries.
12. Transfers in Violation of Agreement. Any Transfer or attempted
-----------------------------------
Transfer of any Shares in violation of any provision of this Agreement shall be
void, and the Company shall not record such Transfer on its books or treat any
purported transferee of such Shares as the owner of such Shares for any purpose.
13. Amendment and Waiver. Except as otherwise provided herein, no
--------------------
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or the Shareholders unless such modification,
amendment or waiver is approved in writing by the Company, the Investors holding
a majority of the Shares then held by the Investors and the Existing
Shareholders holding a majority of the Shares then held by the Existing
Shareholders. The failure of any party to enforce any of the provisions of this
Agreement shall in no way be construed as a waiver of such provisions and shall
not affect the right of such party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
14. Severability. Whenever possible, each provision of this Agreement
------------
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other provision of this
Agreement in such jurisdiction or affect the validity, legality or
enforceability of any provision in any other jurisdiction, but this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein. The
Existing Shareholders acknowledge and agree that the covenants and agreements
set forth in this agreement were a material inducement to the Investors to enter
into the Recapitalization Agreement and consummate the transactions contemplated
thereby, and the Investors would not obtain the benefit of their bargain as set
forth herein and in the Recapitalization Agreement and the other agreements
contemplated thereby as specifically negotiated by the Shareholders if any of
such Existing Shareholders breached or challenged any of the provisions of this
Agreement. Therefore, notwithstanding anything to the contrary expressed or
implied in this paragraph 13 or elsewhere in this Agreement, each of the
Existing Shareholders unconditionally and forever covenants and agrees that such
Existing Shareholder will not directly or indirectly challenge the validity,
legality or enforceability of any provision of this Agreement and will cooperate
with the Company (at the Company's cost and expense, except in connection with a
breach by such Existing Shareholder) to enforce the provisions of this
Agreement.
15. Entire Agreement. Except as otherwise expressly set forth herein,
----------------
this Agreement embodies the complete agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
16. Successors and Assigns. Except as otherwise expressly provided
----------------------
herein, this Agreement shall bind and inure to the benefit of and be enforceable
by the Company and its successors and assigns and the Shareholders and any
subsequent holders of Shares and the respective successors and assigns of each
of them, so long as they hold Shares; provided that the rights of the
-------- ----
-13-
Founding Shareholders under paragraphs 1, 3(c), 6 and 11 above may not be
assigned without the prior written approval of the holders of a majority of the
Shares held by the Investors and the rights of the Other Shareholders under
paragraph 3(b) above may not be assigned without the prior written approval of
the holders of a majority of the Shares held by the Investors.
17. Counterparts. This Agreement may be executed in multiple
------------
counterparts (including by means of telecopied signature pages), each of which
shall be an original and all of which taken together shall constitute one and
the same agreement.
18. Remedies. The parties hereto shall be entitled to enforce their
--------
rights under this Agreement specifically, to recover damages by reason of any
breach of any provision of this Agreement and to exercise all other rights
existing in their favor. The parties hereto agree and acknowledge that money
damages would not be an adequate remedy for any breach of the provisions of this
Agreement and that the Company and any Shareholder may in its sole discretion
apply to any court of law or equity of competent jurisdiction for specific
performance and/or injunctive relief (without posting a bond or other security)
in order to enforce or prevent any violation of the provisions of this
Agreement.
19. Notices. Any notice provided for in this Agreement shall be in
-------
writing and shall be either personally delivered, or mailed first class mail
(postage prepaid) or sent by reputable overnight courier service (charges
prepaid) to the Company at the address set forth below and to any other
recipient at the address indicated on the schedules hereto and to any subsequent
holder of Shares subject to this Agreement at such address as indicated by the
Company's records, or at such address or to the attention of such other Person
as the recipient party has specified by prior written notice to the sending
party. Notices shall be deemed to have been given hereunder when delivered
personally, three days after deposit in the U.S. mail and one day after deposit
with a reputable overnight courier service (charges prepaid). The Company's
address is:
E-Tek Dynamics, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
20. Governing Law. All issues and questions concerning the
-------------
construction, validity, interpretation and enforcement of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of California without giving effect to any choice of
law or conflict of law rules or provisions (whether of the State of California
or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of California.
21. Business Days. If any time period for giving notice or taking
-------------
action hereunder expires on a day which is a Saturday, Sunday or legal holiday
in the state in which the Company's chief executive office is then located, the
time period shall automatically be extended to the business day immediately
following such Saturday, Sunday or legal holiday.
-14-
22. Descriptive Headings, etc. The descriptive headings of this
--------------------------
Agreement are inserted for convenience only and do not constitute a part of this
Agreement. The use of the term "including" herein shall mean "including without
limitation."
23. No Strict Construction. The parties hereto have participated
----------------------
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question or intent or interpretation arises, this Agreement shall
be construed as it was drafted jointly by the parties hereto, and no presumption
or burden of proof shall arise favoring or disfavoring any party hereto by
virtue of the authorship of any of the provisions of this Agreement.
* * * * *
-15-
Consent and Community Property Waiver
The undersigned hereby acknowledges that the undersigned has read this
Agreement and understands its contents. The undersigned is aware that this
Agreement provides for the purchase of shares of Common Stock from the
undersigned's spouse. The undersigned hereby acknowledges and agrees that the
interest of the undersigned's spouse in such Common Stock is subject to this
Agreement and any interest the undersigned may have in such Common Stock shall
be irrevocably bound by this Agreement and further that the undersigned's
community property interest, if any, shall be similarly bound by this Agreement.
The undersigned has sought legal advice with respect to such waiver and has
determined after carefully reviewing this Agreement that the undersigned will
waive such community property right.
________________________________________
By:
___________________________________
Witness
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
E-TEK DYNAMICS, INC.
By: /s/ Xxxxxxx Xxxxx Pan
----------------------------------------
Its: PRESIDENT
---------------------------------------
SUMMIT/E-TEK HOLDINGS, L.L.C.
By: Summit Ventures IV, L.P., its
Manager
By Summit Partners IV, L.P., its
General Partner
By: Stamps, Xxxxxxx & Co. IV, its
General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
General Partner
MELLON BANK, N.A.,
as Trustee for First Plaza Group Trust
as directed by General Motors Investment
Management Corporation
By: _______________________________________
Name:
Title:
BROADVIEW ASSOCIATES, L.L.C.
By: _______________________________________
Its: ______________________________________
[Signature Page to Shareholders Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
E-TEK DYNAMICS, INC.
By: _________________________________________
Its: ________________________________________
SUMMIT/E-TEK HOLDINGS, L.L.C.
By: Summit Ventures IV, L.P., its
Manager
By Summit Partners IV, L.P., its
General Partner
By: Stamps, Xxxxxxx & Co. IV, its
General Partner
By: ___________________________________
General Partner
Mellon Bank, N.A., solely in its capacity as
Trustee for FIRST PLAZA GROUP TRUST, (as
directed by General Motors Investment
Management Corporation), and not in its
individual capacity
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxx X. Xxxx
Title: V.P.
BROADVIEW ASSOCIATES, L.L.C.
By: _________________________________________
Its: ________________________________________
[Signature Page to Shareholders Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
E-TEK DYNAMICS, INC.
By: ____________________________________
Its: ___________________________________
SUMMIT/E-TEK HOLDINGS, L.L.C.
By: Summit Ventures IV, L.P., its
Manager
By Summit Partners IV, L.P., its
General Partner
By: Stamps, Xxxxxxx & Co. IV, its
General Partner
By: ______________________________
General Partner
MELLON BANK, N.A.,
as Trustee for First Plaza Group
Trust as directed by General Motors
Investment Management Corporation
By: ____________________________________
Name:
Title:
XXXXX X. XXXXXX, as nominee for the
Broadview Partners Group
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Its: Xxxxx X Xxxxxx as nominee
-----------------------------------
[Signature Page to Shareholders Agreement]
XXXXXXXX STREET PARTNERS
By: [Signature]
-------------------------------------
Its: Managing Partner
------------------------------------
XXXXXXXX STREET PARTNERS DIF, LLC
By: [Signature]
-------------------------------------
Its: Managing Member
------------------------------------
F&W INVESTMENTS 1997
By: ____________________________________
Its: ___________________________________
________________________________________
Xxxxxxx Xxxxx Pan
________________________________________
Xxxx Xxxx Pan
Xxxx Xxxx Pan and Xxxxxxx Xxxxx Pan,
Trustees of the J.J. & Xxxxxxx Pan
Revocable Trust dated February 14, 1997
________________________________________
Xxxx Xxxx Pan
________________________________________
Xxxxxxx Xxxxx Pan
[Signature Page to Shareholders Agreement]
XXXXXXXX STREET PARTNERS
By: ________________________________
Its: _______________________________
XXXXXXXX STREET PARTNERS DIF, LLC
By: ________________________________
Its: _______________________________
F&W INVESTMENTS 1997
By: /s/ [Signature]
--------------------------------
Its: _______________________________
/s/ Xxxxxxx Xxxxx Pan
------------------------------------
Xxxxxxx Xxxxx Pan
/s/ Xxxx Xxxx Pan
------------------------------------
Xxxx Xxxx Pan
Xxxx Xxxx Pan and Xxxxxxx Xxxxx Pan,
Trustees of the J.J. & Xxxxxxx Pan
Revocable Trust dated February 14,
1997
/s/ Xxxx Xxxx Pan
------------------------------------
Xxxx Xxxx Pan
/s/ Xxxxxxx Xxxxx Pan
------------------------------------
Xxxxxxx Xxxxx Pan
[Signature Page to Shareholders Agreement]
/s/ Xxxx Xxxx
------------------------------------
Xxxx Xxxx
/s/ Kung Shih 7/21/97
------------------------------------
Kung Shih
[Signature Page to Shareholders Agreement]
/s/ Xxxxxx Xxxxx
------------------------------------
Xxxxxx Xxxxx
BAIN SECURITIES, INC.
By:_________________________________
Xxxx Xxxxxxxxx
Its: Treasurer
[Signature Page to Shareholders Agreement]
____________________________________
Xxxxxx Xxxxx
BAIN SECURITIES, INC.
By: /s/ Xxxx Xxxxxxxxx
---------------------------------
Xxxx Xxxxxxxxx
Its: Treasurer
[Signature Page to Shareholders Agreement]
SCHEDULE OF INVESTORS
---------------------
Name and Address
----------------
Summit/E-Tek Holdings, L.L.C.
c/o Summit Partners, L.P.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
--------------
(which shall not constitute notice to the Investors)
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxx X. Xxxx, Esq.
Bain Securities, Inc.
c/o Bain & Company, Inc.
0 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxx X. Xxxxxx, as nominee
for the Broadview Partners Group
c/o Broadview Associates
000 Xxxxx Xxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxxxxx Xxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
F&W Investments 1997
c/o Fenwick & Xxxx
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxxxxxx Xxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxx Xxxxx
c/o Digital Link Corporation
000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Mellon Bank, N.A., as Trustee for
First Plaza Group Trust as directed by
General Motors Investment Management Corporation
Mellon Bank
Xxx Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attn: Xxxxxxxxxx Xxxx
Phone: (000)000-0000
Facsimile: (000) 000-0000
with a copy to:
General Motors Investment Management Corporation
000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxx
Phone: (000)000-0000
Facsimile: (212)418-6123
Xxxxxxxx Street Partners
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx
Phone: (000)000-0000
Facsimile: (312)861-2200
Xxxxxxxx Street Partners DIF, LLC
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx
Phone: (000)000-0000
Facsimile: (000)000-0000
SCHEDULE OF EXISTING SHAREHOLDERS
---------------------------------
Name and Address
----------------
**Xxxx Xxxx Pan and Xxxxxxx Xxxxx Pan,
Trustees of the J.J. & Xxxxxxx Pan
Revocable Trust dated February 14, 1997
c/o Crist, Schulz, Xxxxx & Shepherd
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Xxxx Xxxx Pan
Xxxxxxx Xxxxx Pan
[Address]
with a copy to:
--------------
(which shall not constitute notice to the Founding Shareholders)
Fenwick & Xxxx
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxxxx X. Xxxxx, Esq.
Xxxx Xxxx
[Address]
Kung Shih
[Address]
