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Exhibit 4.1.2
EXECUTION COPY
STOCKHOLDERS AGREEMENT
among
SMTC Corporation
and
The Stockholders referred to herein
Dated as of November 22, 2000
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Table of Contents
Page
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1. EFFECTIVENESS; DEFINITIONS.............................................2
1.2. Effectiveness....................................................2
1.3. Definitions......................................................2
2. [RESERVED].............................................................2
3. [RESERVED].............................................................2
4. [RESERVED].............................................................2
5. [RESERVED].............................................................2
6. REGISTRATION RIGHTS....................................................2
6.1. Majority Investor Demand Registration Rights.....................2
6.1.1. General...................................................2
6.1.2. Form......................................................3
6.1.3. Payment of Expenses.......................................3
6.1.4. Additional Procedures.....................................3
6.2. Investors' Demand Registration Rights............................4
6.2.1. General...................................................4
6.2.2. Form......................................................4
6.2.3. Payment of Expenses.......................................4
6.2.4. Additional Procedures.....................................5
6.3. Piggyback Registration Rights....................................5
6.3.1. General...................................................5
6.3.2. Excluded Transactions.....................................5
6.3.3. Payment of Expenses.......................................6
6.3.4. Additional Procedures.....................................6
6.4. Certain Other Provisions.........................................6
6.4.1. Underwriter's Cutback.....................................6
6.4.2. Other Actions.............................................7
6.4.3. Selection of Underwriters and Counsel.....................7
6.4.4. Lock-Up...................................................8
6.5. Indemnification and Contribution.................................8
6.5.1. Indemnities of the Company................................8
6.5.2. Indemnities to the Company................................9
6.5.3. Contribution.............................................10
6.5.4. Limitation on Liability of Holders of Registrable
Securities.............................................10
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Table of Contents
(continued)
Page
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7. TRANSFERS TO OTHER HOLDERS............................................10
8. REMEDIES..............................................................11
8.1. Generally.......................................................11
8.2. [RESERVED]......................................................11
9. LEGENDS...............................................................11
9.1. [RESERVED]......................................................11
9.2. 1933 Act Legends................................................11
9.3. Stop Transfer Instruction.......................................11
9.4. Termination of 1933 Act Legend..................................11
10. [RESERVED]............................................................11
11. AMENDMENT, TERMINATION, ETC...........................................11
11.1. Oral Modifications..............................................11
11.2. Written Modifications...........................................11
11.3. Termination.....................................................12
12. DEFINITIONS...........................................................12
12.1. Certain Matters of Construction.................................12
12.2. Definitions.....................................................12
13. MISCELLANEOUS.........................................................18
13.1. Expenses of EMSIcon Transfers...................................18
13.2. Authority; Effect...............................................18
13.3. Notices.........................................................19
13.4. Binding Effect, Etc.............................................20
13.5. Descriptive Headings............................................20
13.6. Counterparts....................................................20
13.7. Severability....................................................20
14. GOVERNING LAW, ETC....................................................20
14.1. Governing Law...................................................20
14.2. Consent to Jurisdiction.........................................20
14.3. WAIVER OF JURY TRIAL............................................21
14.4. Exercise of Rights and Remedies.................................21
ii
STOCKHOLDERS AGREEMENT
The Stockholders Agreement (the "July 2000 Agreement") made as of July 27,
2000 by and among:
(i) SMTC Corporation (the "Company");
(ii) SMTC Manufacturing Corporation of Canada (f/k/a The Surface Mount
Technology Centre, Inc.) ("SMTC-Canada");
(iii) EMSIcon Investments ("EMSIcon"), LLC, Xxxxxx X. Xxxxxxx, Xxxxx
Xxxxxx, J & E Enterprises, LLC, Xxxxx & Company, Incorporated, Xxxxx
Value Partners, L.P., Xxxxx Value Limited, Celerity EMSIcon, LLC,
Xxxx Capital Fund VI, L.P., BCIP Associates II, BCIP Trust
Associates II, BCIP Associates II-B, BCIP Associates II-C, BCM
Capital Partners, L.P., Xxxx Capital V Mezzanine Fund, L.P., Sankaty
High Yield Asset Partners, L.P., General Electric Capital
Corporation, RGIP, LLC, J&L Investments, LLC ("J&L") and the members
of Celerity EMSIcon, LLC listed on the signature pages thereto
(collectively, the "HTM Investors");
(iv) X. X. Xxxxxx Consulting Inc., Xxxx Xxxxxx, Xxxxxx Inc., Xxxxx
X'Xxxxxxx, Xxxx Xxxxxx, Xxxxxx Xxxxxxx and Xxxxxx Electronics Group
Limited (collectively, the "SMTC Investors");
(v) Xxxxxx X. Xxxxxxx, Xxxxx Xxxxxxx and each Person who, upon acquiring
Shares in connection with the exercise of Options granted by the
Company, became party hereto by executing a counterpart signature
page thereto (collectively, the "Managers"),
(vi) Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxx, Xxxxx X.
Steel and Xxxxx X. Xxxxxx (collectively, the "Pensar Investors)"
is hereby amended and restated in its entirety pursuant to Section 11.2 of the
July 2000 Agreement by written agreement of the Majority Stockholders (as such
term is defined in the July 2000 Agreement) in the form of this Stockholders
Agreement (July 2000 Agreement as amended and restated hereby is referred to
herein as the "Agreement") as of November 22, 2000 to read as follows:
Recitals
1. Pursuant to the terms of a Stock Purchase Agreement dated November 22, 2000,
the Company intends to acquire the capital stock of Qualtron Teoranta, an Irish
corporation ("Qualtron") and, in connection with such acquisition, the Sellers
(as defined in such Stock Purchase Agreement, and for purposes of this agreement
the "Qualtron Investors") will acquire Exchangeable Shares in consideration of
their interests in the capital stock of Qualtron.
2. The parties desire to amend and restate the July 2000 Agreement on the date
hereof to add the Qualtron Investors as parties to this Agreement.
3. It is a condition to the closing of the acquisition of Qualtron that the
Qualtron Investors execute a counterpart signature page to this Agreement as
"Qualtron Investors."
Agreement
Therefore, the parties hereto hereby agree as follows:
1. EFFECTIVENESS; DEFINITIONS.
1.2. Effectiveness. This Agreement shall become effective upon the closing
of the acquisition of Qualtron.
1.3. Definitions. Certain terms are used in this Agreement as specifically
defined herein. These definitions are set forth or referred to in Section 12
hereof.
2. [RESERVED].
3. [RESERVED].
4. [RESERVED].
5. [RESERVED].
6. REGISTRATION RIGHTS. The Company will perform and comply, and cause each of
its subsidiaries to perform and comply, with such of the following provisions as
are applicable to it. Each holder of Shares will perform and comply with such of
the following provisions as are applicable to such holder.
6.1. Majority Investor Demand Registration Rights.
6.1.1. General. The Majority Stockholders (for purposes of this
Section 6.1, "Initiating Investors"), by notice to the Company specifying
the intended method or methods of disposition, may request that the
Company effect the registration under the Securities Act for a Public
Offering of all or a specified part of the Registrable Securities (x) held
by such Initiating Investors or (y) issuable to such Initiating Investors
upon Conversion of any Exchangeable Shares held by such Initiating
Investors. The Company will then use its best efforts to effect the
registration under the Securities Act of the Registrable Securities which
the Company has been requested to register by such Initiating Investors
together with all other Registrable Securities which the Company has been
requested to register pursuant to Section 6.3 all to the extent requisite
to permit the disposition (in accordance with the intended methods thereof
as aforesaid) of the Registrable Securities which the Company has been so
requested to register; provided, however, that the Company shall not be
obligated to take any action to effect any such registration pursuant to
this Section 6.1.1:
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6.1.1.1. Within 180 days immediately following the effective
date of any registration statement pertaining to an underwritten
public offering of securities of the Company for its own account
(other than a Rule 145 Transaction, or a registration relating
solely to employee benefit plans); or
6.1.1.2. On any form other than Form S-3 (or any successor
form) if the Company has previously effected three or more
registrations of Registrable Securities under this Section 6.1.1 on
any form other than Form S-3 (or any successor form); provided,
however, that no registrations of Registrable Securities which shall
not have become and remained effective in accordance with the
provisions of this Section 6, and no registrations of Registrable
Securities pursuant to which the Initiating Investors are not able
to include at least 90% of the Registrable Securities which they
desired to include, shall be included in the calculation of numbers
of registrations contemplated by this clause (b).
6.1.2. Form. Except as otherwise provided above, each registration
requested pursuant to this Section 6.1.1 shall be effected by the filing
of a registration statement on Form S-1 (or any other form which includes
substantially the same information as would be required to be included in
a registration statement on such form as currently constituted), unless
the use of a different form has been agreed to in writing by holders of at
least a majority of the Registrable Securities to be included in the
proposed registration statement in question by the Initiating Investors
(the "Majority Participating Stockholders").
6.1.3. Payment of Expenses. The Company shall pay all reasonable
expenses of the Initiating Investors incurred in connection with each
registration of Registrable Securities requested pursuant to this Section
6.1, other than underwriting discount and commission, if any, and
applicable transfer taxes, if any.
6.1.4. Additional Procedures. In the case of a registration pursuant
to Section 6.1, whenever the Majority Participating Stockholders shall
request that such registration shall be effected pursuant to an
underwritten offering, the Company shall include such information in the
written notices to holders of Registrable Securities and Convertible
Securities referred to in Section 6.3. In such event, the right of any
holder of Registrable Securities to have securities owned by such holder
included in such registration pursuant to Section 6.1 shall be conditioned
upon such holder's participation in such underwriting and the inclusion of
such holder's Registrable Securities in the underwriting (unless otherwise
mutually agreed upon by the Majority Participating Stockholders and such
holder). If requested by such underwriters, the Company together with the
holders of Registrable Securities proposing to distribute their securities
through such underwriting will enter into an underwriting agreement with
such underwriters for such offering containing such representations and
warranties by the Company and such holders and such other terms and
provisions as are customarily contained in underwriting agreements with
respect to secondary distributions, including, without limitation,
customary indemnity and contribution provisions (subject, in each case, to
the limitations on such liabilities set forth in this Agreement).
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6.2. Investors' Demand Registration Rights.
6.2.1. General. From and after July 30, 2003, each of the Majority
Xxxx Investors, the Majority Celerity Investors and the Majority SMTC
Investors, in each case, holding Shares that constitute at least 15% of
the Registrable Securities (for purposes of this Section 6.2, "Initiating
Investors"), by notice to the Company specifying the intended method or
methods of disposition, may request that the Company effect the
registration under the Securities Act for a Public Offering of all or a
specified part of the Registrable Securities (x) held by such Initiating
Investors or (y) issuable to such Initiating Investor upon Conversion of
any Exchangeable Shares held by such Initiating Investor. The Company will
then use its best efforts to effect the registration under the Securities
Act of the Registrable Securities which the Company has been requested to
register by such Initiating Investors together with all other Registrable
Securities which the Company has been requested to register pursuant to
Section 6.3 all to the extent requisite to permit the disposition (in
accordance with the intended methods thereof as aforesaid) of the
Registrable Securities which the Company has been so requested to
register; provided, however, that the Company shall not be obligated to
take any action to effect any such registration pursuant to this Section
6.2.1:
6.2.1.1. Within 180 days immediately following the effective
date of any registration statement pertaining to an underwritten
public offering of securities of the Company for its own account
(other than a Rule 145 Transaction, or a registration relating
solely to employee benefit plans); or
6.2.1.2. On any form other than Form S-3 (or any successor
form) if the Company has previously effected three or more
registrations of Registrable Securities under this Section 6.2.1 on
any form other than Form S-3 (or any successor form); provided,
however, that no registrations of Registrable Securities which shall
not have become and remained effective in accordance with the
provisions of this Section 6, and no registrations of Registrable
Securities pursuant to which the Initiating Investors are not able
to include at least 90% of the Registrable Securities which they
desired to include, shall be included in the calculation of numbers
of registrations contemplated by this clause (b).
6.2.2. Form. Except as otherwise provided above, each registration
requested pursuant to this Section 6.2.1 shall be effected by the filing
of a registration statement on Form S-1 (or any other form which includes
substantially the same information as would be required to be included in
a registration statement on such form as currently constituted), unless
the use of a different form has been agreed to in writing by holders of at
least a majority of the Registrable Securities to be included in the
proposed registration statement in question by the Initiating Investors
(the "Majority Participating Stockholders").
6.2.3. Payment of Expenses. The Company shall pay all reasonable
expenses of the Initiating Investors incurred in connection with each
registration of Registrable Securities requested pursuant to this Section
6.2, other than underwriting discount and commission, if any, and
applicable transfer taxes, if any.
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6.2.4. Additional Procedures. In the case of a registration pursuant
to Section 6.2, whenever the Majority Participating Stockholders shall
request that such registration shall be effected pursuant to an
underwritten offering, the Company shall include such information in the
written notices to holders of Registrable Securities and Convertible
Securities referred to in Section 6.3. In such event, the right of any
holder of Registrable Securities to have securities owned by such holder
included in such registration pursuant to Section 6.2 shall be conditioned
upon such holder's participation in such underwriting and the inclusion of
such holder's Registrable Securities in the underwriting (unless otherwise
mutually agreed upon by the Majority Participating Stockholders and such
holder). If requested by such underwriters, the Company together with the
holders of Registrable Securities proposing to distribute their securities
through such underwriting will enter into an underwriting agreement with
such underwriters for such offering containing such representations and
warranties by the Company and such holders and such other terms and
provisions as are customarily contained in underwriting agreements with
respect to secondary distributions, including, without limitation,
customary indemnity and contribution provisions (subject, in each case, to
the limitations on such liabilities set forth in this Agreement).
6.3. Piggyback Registration Rights.
6.3.1. General. Each time the Company proposes to register any
shares of Common Stock under the Securities Act on a form which would
permit registration of Registrable Securities for sale to the public, for
its own account and/or for the account of any stockholder (pursuant to
Section 6.1, Section 6.2 or otherwise) for sale in a Public Offering, the
Company will give notice to all holders of Registrable Securities and
holders of Convertible Securities of its intention to do so. Any such
holder may, by written response delivered to the Company within 20 days
after the effectiveness of such notice, request that all or a specified
part of the Registrable Securities (a) held by such holder or (b) issuable
to such holder upon Conversion of Exchangeable Shares held by such holder
be included in such registration. The Company thereupon will use its
reasonable efforts to cause to be included in such registration under the
Securities Act all shares of Common Stock which the Company has been so
requested to register by such holders, to the extent required to permit
the disposition (in accordance with the methods to be used by the Company
or other holders of shares of Common Stock in such Public Offering) of the
Registrable Securities to be so registered. No registration of Registrable
Securities effected under this Section 6.3 shall relieve the Company of
any of its obligations to effect registrations of Registrable Securities
pursuant to Section 6.1 or Section 6.2.
6.3.2. Excluded Transactions. The Company shall not be obligated to
effect any registration of Registrable Securities under this Section 6.3
incidental to the registration of any of its securities in connection
with:
6.3.2.1. Any Public Offering relating to employee benefit
plans or dividend reinvestment plans;
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6.3.2.2. Any Public Offering relating to the acquisition or
merger after the date hereof by the Company or any of its
subsidiaries of or with any other businesses; or
6.3.2.3. The Initial Public Offering and the Qualified Public
Offering, unless such Public Offering has been initiated pursuant to
Section 6.1.1 or 6.2.1.
6.3.3. Payment of Expenses. The Company shall pay all reasonable
expenses of a single legal counsel representing any and all holders of
Registrable Securities incurred in connection with each registration of
Registrable Securities requested pursuant to this Section 6.3.
6.3.4. Additional Procedures. Holders of Shares participating in any
Public Offering pursuant to this Section 6.3 shall take all such actions
and execute all such documents and instruments that are reasonably
requested by the Company to effect the sale of their Shares in such Public
Offering, including, without limitation, being parties to the underwriting
agreement entered into by the Company and any other selling shareholders
in connection therewith and being liable in respect of the representations
and warranties by, and the other agreements (including without limitation
customary selling stockholder representations, warranties,
indemnifications and "lock-up" agreements) for the benefit of the
underwriters; provided, however, that (a) with respect to individual
representations, warranties, indemnities and agreements of sellers of
Shares in such Public Offering, the aggregate amount of such liability
shall not exceed such holder's net proceeds from such offering and (b) to
the extent selling stockholders give further representations, warranties
and indemnities, then with respect to all other representations,
warranties and indemnities of sellers of shares in such Public Offering,
the aggregate amount of such liability shall not exceed the lesser of (i)
such holder's pro rata portion of any such liability, in accordance with
such holder's portion of the total number of Shares included in the
offering or (ii) such holder's net proceeds from such offering.
6.4. Certain Other Provisions.
6.4.1. Underwriter's Cutback. In connection with any registration of
shares, the underwriter may determine that marketing factors (including,
without limitation, an adverse effect on the per share offering price)
require a limitation of the number of shares to be underwritten.
Notwithstanding any contrary provision of this Section 6 and subject to
the terms of this Section 6.4.1, the underwriter may limit the number of
shares which would otherwise be included in such registration by excluding
any or all Registrable Securities from such registration (it being
understood that the number of shares which the Company seeks to have
registered in such registration shall not be subject to exclusion, in
whole or in part, under this Section 6.4.1). Upon receipt of notice from
the underwriter of the need to reduce the number of shares to be included
in the registration, the Company shall advise all holders of the Company's
securities that would otherwise be registered and underwritten pursuant
hereto, and the number of shares of such securities, including Registrable
Securities, that may be included in the registration shall be allocated in
the following manner, unless the underwriter shall determine that
marketing
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factors require a different allocation: shares, other than Registrable
Securities, requested to be included in such registration by shareholders
shall be excluded to the extent necessary to achieve the underwriter's
cutback unless the Company has, with the consent of the Majority
Stockholders, granted registration rights which are to be treated on an
equal basis with Registrable Securities for the purpose of the exercise of
the underwriter cutback; and, if a limitation on the number of shares is
still required, the number of Registrable Securities and other shares of
Common Stock that may be included in such registration shall be allocated
among holders thereof in proportion, as nearly as practicable, to the
respective amounts of Common Stock which each shareholder requested be
registered in such registration. For purposes of any underwriter cutback,
all Common Stock held by any holder of Registrable Securities which is a
partnership or corporation shall also include any Common Stock held by the
partners, retired partners, shareholders or affiliated entities of such
holder, or the estates and family members of any such partners and retired
partners and any trusts for the benefit of any of the foregoing persons,
and such holder and other persons shall be deemed to be a single selling
holder, and any pro rata reduction with respect to such selling holder
shall be based upon the aggregate amount of Common Stock owned by all
entities and individuals included in such selling holder, as defined in
this sentence. No securities excluded from the underwriting by reason of
the underwriter's marketing limitation shall be included in such
registration. If any holder of Registrable Securities disapproves of the
terms of the underwriting, it may elect to withdraw therefrom by written
notice to the Company and the underwriter. The Registrable Securities so
withdrawn shall also be withdrawn from registration.
6.4.2. Other Actions. If and in each case when the Company is
required to use its best efforts to effect a registration of any
Registrable Securities as provided in this Section 6, the Company shall
take appropriate and customary actions in furtherance thereof, including,
without limitation: (a) promptly filing with the Commission a registration
statement and using reasonable efforts to cause such registration
statement to become effective, (b) preparing and filing with the
Commission such amendments and supplements to such registration statements
as may be required to comply with the Securities Act and to keep such
registration statement effective for a period not to exceed 270 days from
the date of effectiveness or such earlier time as the Registrable
Securities covered by such registration statement shall have been disposed
of in accordance with the intended method of distribution therefor or the
expiration of the time when a prospectus relating to such registration is
required to be delivered under the Securities Act, (c) use its best
efforts to register or qualify such Registrable Securities under the state
securities or "blue sky" laws of such jurisdictions as the sellers shall
reasonably request; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify
as a foreign corporation in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing business in
any jurisdiction in which it would not otherwise be so subject and (d)
otherwise cooperate reasonably with, and take such customary actions as
may reasonably be requested by the holders of Registrable Securities in
connection with, such registration.
6.4.3. Selection of Underwriters and Counsel. The underwriters and
legal counsel to be retained in connection with any Public Offering shall
be selected by the
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Board or, in the case of an offering following a request therefor under
Section 6.1, the Initiating Investors.
6.4.4. Lock-Up. Without the prior written consent of the
underwriters managing any Public Offering, for a period beginning seven
days immediately preceding and ending on the 90th day (or, in the case of
the Initial Public Offering, the 180th day) following the effective date
of the registration statement used in connection with such offering, no
holder of Shares (whether or not a selling shareholder pursuant to such
registration statement) shall (a) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend, or
otherwise Transfer, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for such
Common Stock or (b) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic
consequences of ownership of Common Stock, whether any such transaction
described in clause (a) or (b) above is to be settled by delivery of such
Common Stock or such other securities, in cash or otherwise; provided,
however, that the foregoing restrictions shall not apply to (i)
transactions relating to shares of Common Stock or other securities
acquired in open market transactions after the completion of the Initial
Public Offering, (ii) Transfers to a Permitted Transferee of such holder
or (iii) Conversions of Exchangeable Shares or conversions or exchanges of
shares of Common Stock into other classes of Common Stock, in either case
without change of holder, (iv) transfers of Common Stock to any of the
Pensar Investors, the Company or its affiliates pursuant to the Escrow
Agreement dated July 27, 2000 among the Company, the Pensar Investors and
Xxxxx Brothers Xxxxxxxx & Co., as Escrow Agents or (v) transfer of
Exchangeable Shares to any of the Qualtron Investors, the Company or its
affiliates pursuant to the Escrow Agreement dated on or about the date
hereof among the Company, the Qualtron Investors and Xxxxx Brothers
Xxxxxxxx & Co., as Escrow Agent.
6.5. Indemnification and Contribution.
6.5.1. Indemnities of the Company. In the event of any registration
of any Registrable Securities or other debt or equity securities of the
Company or any of its subsidiaries under the Securities Act pursuant to
this Section 6 or otherwise, and in connection with any registration
statement or any other disclosure document produced by or on behalf of the
Company or any of its subsidiaries including, without limitation, reports
required and other documents filed under the Exchange Act, and other
documents pursuant to which any debt or equity securities of the Company
or any of its subsidiaries are sold (whether or not for the account of the
Company or its subsidiaries), the Company will, and hereby does, and will
cause each of its subsidiaries, jointly and severally, to indemnify and
hold harmless each seller of Registrable Securities, any Person who is or
might be deemed to be a controlling Person of the Company or any of its
subsidiaries within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, their respective direct and indirect
partners, advisory board members, directors, officers, trustees, members
and shareholders, and each other Person, if any, who controls any such
seller or any such holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (each such person being
referred to herein as a
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"Covered Person"), against any losses, claims, damages or liabilities (or
actions or proceedings in respect thereof), joint or several, to which
such Covered Person may be or become subject under the Securities Act, the
Exchange Act, any other securities or other law of any jurisdiction, the
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or
are based upon (a) any untrue statement or alleged untrue statement of any
material fact contained or incorporated by reference in any registration
statement under the Securities Act, any preliminary prospectus or final
prospectus included therein, or any related summary prospectus, or any
amendment or supplement thereto, or any document incorporated by reference
therein, or any other such disclosure document (including without
limitation reports and other documents filed under the Exchange Act and
any document incorporated by reference therein) or other document or
report, (b) any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading or (c) any violation or alleged violation by the
Company or any of its subsidiaries of any federal, state, foreign or
common law rule or regulation applicable to the Company or any of its
subsidiaries and relating to action or inaction in connection with any
such registration, disclosure document or other document or report, and
will reimburse such Covered Person for any legal or any other expenses
incurred by it in connection with investigating or defending any such
loss, claim, damage, liability, action or proceeding; provided, however,
that neither the Company nor any of its subsidiaries shall be liable to
any Covered Person in any such case to the extent that any such loss,
claim, damage, liability, action or proceeding arises out of or is based
upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement,
incorporated document or other such disclosure document or other document
or report, in reliance upon and in conformity with written information
furnished to the Company or to any of its subsidiaries through an
instrument duly executed by such Covered Person specifically stating that
it is for use in the preparation thereof. The indemnities of the Company
and of its subsidiaries contained in this Section 6.5.1 shall remain in
full force and effect regardless of any investigation made by or on behalf
of such Covered Person and shall survive any transfer of securities.
6.5.2. Indemnities to the Company. The Company and any of its
subsidiaries may require, as a condition to including any securities in
any registration statement filed pursuant to this Section 6, that the
Company and any of its subsidiaries shall have received an undertaking
satisfactory to it from the prospective seller of such securities, to
indemnify and hold harmless the Company and any of its subsidiaries, each
director of the Company or any of its subsidiaries, each officer of the
Company or any of its subsidiaries who shall sign such registration
statement and each other Person (other than such seller), if any, who
controls the Company and any of its subsidiaries within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act and
each other prospective seller of such securities with respect to any
statement in or omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus included therein, or
any amendment or supplement thereto, or any other disclosure document
(including, without limitation, reports and other documents filed under
the Exchange Act or any document incorporated therein) or other document
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or report, if such statement or omission was made in reliance upon and in
conformity with written information furnished to the Company or any of its
subsidiaries through an instrument executed by such seller specifically
stating that it is for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement, incorporated document or other document or
report. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of the Company, any of its
subsidiaries or any such director, officer or controlling Person and shall
survive any transfer of securities.
6.5.3. Contribution. If the indemnification provided for in Sections
6.5.1 or 6.5.2 is unavailable to a party that would have been entitled to
indemnification pursuant to the foregoing provisions of this Section 6.5
(an "Indemnitee") in respect of any losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) referred to therein, then
each party that would have been an indemnifying party thereunder shall, in
lieu of indemnifying such Indemnitee, contribute to the amount paid or
payable by such Indemnitee as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such
proportion as is appropriate to reflect the relative fault of such
indemnifying party on the one hand and such Indemnitee on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect
thereof). The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by such indemnifying party or such Indemnitee and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties
agree that it would not be just or equitable if contribution pursuant to
this Section 6.5.3 were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to in the preceding sentence. The amount paid or
payable by a contributing party as a result of the losses, claims, damages
or liabilities (or actions or proceedings in respect thereof) referred to
above in this Section 6.5.3 shall include any legal or other expenses
reasonably incurred by such Indemnitee in connection with investigating or
defending any such action or claim. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any Person who was not guilty
of such fraudulent misrepresentation.
6.5.4. Limitation on Liability of Holders of Registrable Securities.
The liability of each holder of Registrable Securities in respect of any
indemnification or contribution obligation of such holder arising under
this Section 6.5 shall not in any event exceed an amount equal to the net
proceeds to such holder (after deduction of all underwriters' discounts
and commissions) from the disposition of the Registrable Securities
disposed of by such holder pursuant to such registration.
7. TRANSFERS TO OTHER HOLDERS. Shares Transferred by a holder of Shares to
another holder of shares under this Agreement shall be deemed for all purposes
hereof to be HTM Shares, SMTC Shares, Pensar Shares, Qualtron Shares, or the
Management Shares hereunder, of like kind with the other Shares held by the
acquiring holder.
- 10 -
8. REMEDIES.
8.1. Generally. To the extent permitted by applicable law, the Company and
each holder of Shares shall have all remedies at law, in equity or otherwise in
the event of any breach or violation of this Agreement or any default hereunder
by the Company or any holder of Shares. The parties acknowledge and agree that
in the event of any breach of this Agreement, in addition to any other remedies
which may be available, each of the parties hereto shall be entitled to specific
performance of the obligations of the other parties hereto and, in addition, to
such other equitable remedies (including, without limitation, preliminary or
temporary relief) as may be appropriate in the circumstances.
8.2. [RESERVED].
9. LEGENDS.
9.1. [RESERVED].
9.2. 1933 Act Legends. Each certificate representing Shares shall have the
following legend endorsed conspicuously thereupon:
The securities represented by this certificate were issued in a private
placement, without registration under the Securities Act of 1933, as amended
(the "Act"), and may not be sold, assigned, pledged or otherwise transferred in
the absence of an effective registration under the Act covering the transfer or
an opinion of counsel, satisfactory to the issuer, that registration under the
Act is not required.
9.3. Stop Transfer Instruction. The Company will instruct any transfer
agent not to register the Transfer of any Shares until the conditions specified
in the foregoing legends are satisfied.
9.4. Termination of 1933 Act Legend. The requirement imposed by Section
9.2 shall cease and terminate as to any particular Shares (a) when, in the
opinion of Ropes & Xxxx, or other counsel reasonably acceptable to the Company,
such legend is no longer required in order to assure compliance by the Company
with the Securities Act or (b) when such Shares have been effectively registered
under the Securities Act or transferred pursuant to Rule 144. Wherever (x) such
requirement shall cease and terminate as to any Shares or (y) such Shares shall
be transferable under paragraph (k) of Rule 144, the holder thereof shall be
entitled to receive from the Company, without expense, new certificates not
bearing the legend set forth in Section 9.2.
10. [RESERVED].
11. AMENDMENT, TERMINATION, ETC.
11.1. Oral Modifications. This Agreement may not be orally amended,
modified, extended or terminated, nor shall any oral waiver of any of its terms
be effective.
11.2. Written Modifications. This Agreement may be amended, modified,
extended or terminated, and the provisions hereof may be waived, only by an
agreement in writing signed by
- 11 -
the Majority Stockholders; provided, however, that (a) the consent of the
Majority HTM Investors shall be required for any amendment, modification,
extension, termination or waiver which has a material adverse effect on the
rights of the holders of HTM Shares as such under this Agreement, (b) the
consent of the Majority SMTC Investors shall be required for any amendment,
modification, extension, termination or waiver which has a material adverse
effect on the rights of the holders of SMTC Shares as such under this Agreement,
(c) the consent of the Majority Pensar Investors shall be required for any
amendment, modification, extension, termination or waiver which has a material
adverse effect on the rights of the holders of Pensar Shares as such under this
Agreement (d) the consent of the Majority Qualtron Investors shall be required
for any amendment, modification, extension, termination or waiver which has a
material adverse effect on the rights of the holders of Qualtron Shares as such
under this Agreement and (e) the consent of the Majority Managers shall be
required for any amendment, modification, extension, termination or waiver which
has a material adverse effect on the rights of the holders of Management Shares
as such under this Agreement. Each such amendment, modification, extension,
termination and waiver shall be binding upon each party hereto and each holder
of Shares subject hereto. In addition, each party hereto and each holder of
Shares subject hereto may waive any right hereunder by an instrument in writing
signed by such party or holder.
11.3. Termination. No termination under this Agreement shall relieve any
Person of liability for breach prior to termination.
12. DEFINITIONS. For purposes of this Agreement:
12.1. Certain Matters of Construction. In addition to the definitions
referred to or set forth below in this Section 12:
(a) The words "hereof", "herein", "hereunder" and words of similar
import shall refer to this Agreement as a whole and not to any particular
Section or provision of this Agreement, and, unless otherwise provided,
reference to a particular Section shall refer to the applicable Section of
this Agreement and shall include all subsections thereof;
(b) Definitions shall be equally applicable to both nouns and verbs
and the singular and plural forms of the terms defined; and
(c) The masculine, feminine and neuter genders shall each include
the other.
12.2. Definitions. The following terms shall have the following meanings:
"Agreement" shall have the meaning set forth in the Preamble.
"Xxxx Equity Funds" shall mean, collectively, Xxxx Capital Fund VI, L.P.,
BCIP Associates II, BCIP Trust Associates II, BCIP Associates II-B and BCIP
Associates II-C.
"Bain Investors" shall mean, collectively, Xxxx Capital Fund VI, L.P.,
BCIP Associates II, BCIP Trust Associates II, BCIP Associates II-B, BCIP
Associates II-C, Xxxx Capital V Mezzanine Fund, L.P., BCM Capital Partners,
L.P., Sankaty High Yield Asset Partners, L.P.
- 12 -
The "Beneficial Owner" of any Share shall be the owner of such Share and,
in the case of any Share owned by EMSIcon, the owner of the membership unit of
EMSIcon corresponding to such Share. The terms "Beneficial Ownership" and
"Beneficially Owned" shall have a corresponding meaning.
"Celerity Investor" shall mean Celerity EMSIcon, LLC. "Commission" shall
mean the Securities and Exchange Commission.
"Common Stock" shall mean the common stock, par value $.01, of the
Company.
"Company" shall have the meaning set forth in the Preamble.
"Conversion" shall mean the Transfer of an Exchangeable Share to the
Company or one of its subsidiaries in consideration of the receipt of Common
Stock whether pursuant to the Articles of Incorporation (as amended from time to
time) of SMTC-Canada, any agreement relating generally to the conversion of
Exchangeable Shares or otherwise, and "Convert" shall have a similar meaning.
"Convertible Securities" shall mean any evidence of indebtedness, shares
of stock (other than Common Stock) or other securities which are directly or
indirectly convertible into or exchangeable or exercisable for shares of Common
Stock, including without limitation the Exchangeable Shares.
"Covered Person" shall have the meaning set forth in Section 6.5.1.
"EMSIcon" shall have the meaning set forth in the Preamble.
"Equivalent Shares" shall mean as to any outstanding shares of Common
Stock, such number of shares of Common Stock, and as to any outstanding Options
or Convertible Securities, the maximum number of shares of Common Stock for
which or into which such Options or Convertible Securities may at the time be
exercised, exchanged or converted.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as in
effect from time to time.
"Exchangeable Shares" shall mean the exchangeable shares of SMTC-Canada.
"HTM" shall have the meaning set forth in the Recitals.
"HTM Investors" shall have the meaning set forth in the Preamble.
"HTM Shares" shall mean (a) all shares of Common Stock originally issued
to, or issued with respect to shares originally issued to, or held by, an HTM
Investor, whenever issued, including, without limitation, all shares of Common
Stock issued pursuant to the exercise of any Convertible Securities and (b) all
Convertible Securities originally granted or issued to an HTM Investor. As to
any particular HTM Shares, such shares shall cease to be HTM Shares when (w) a
registration statement with respect to the sale of such securities shall have
become effective
- 13 -
under the Securities Act and such securities shall have been disposed of in
accordance with such registration statement, (x) such securities shall have been
Transferred pursuant to Rule 144 or Rule 701, (y) subject to the provisions of
Section 9, such securities shall have been otherwise transferred, new
certificates for them not bearing a legend restricting further transfer shall
have been delivered by the Company and subsequent disposition of them shall not
require registration of them under the Securities Act and such securities may be
distributed without volume limitation or other restrictions on transfer under
Rule 144 (including without application of paragraphs (c), (e), (f) and (h) of
Rule 144) or (z) such securities shall have ceased to be outstanding. Except as
otherwise provided in this Agreement, Convertible Securities shall be treated as
a number of Shares equal to the number of Equivalent Shares represented by such
Convertible Securities in all cases where it is necessary to calculate the
number of Shares held by any holder of HTM Shares.
"Indemnitee" shall have the meaning set forth in Section 6.5.3.
"Initial Public Offering" means the initial Public Offering registered on
Form S-1 (or any successor form under the Securities Act).
"Initiating Investors" shall have the meaning set forth in Sections 6.1.1,
6.2.1.1 and 6.2.1.2.
"J&L" shall have the meaning set forth in the Preamble.
"Majority Bain Investors" shall mean, as of any date, the holders of a
majority of the Shares then Beneficially Owned by the Bain Investors.
"Majority Celerity Investors" shall mean, as of any date, the holders of a
majority of the Shares then Beneficially Owned by the Celerity Investor.
"Majority HTM Investors" shall mean, as of any date, the holders of a
majority of the HTM Shares outstanding on such date.
"Majority Managers" shall mean, as of any date, the holders of a majority
of the Management Shares outstanding on such date.
"Majority Participating Stockholders" shall have the meaning set forth in
Section 6.2.1.1 and 6.2.1.4.
"Majority Qualtron Investors" shall mean, as of any date, the holders of a
majority of thre Qualtron Shares outstanding on such date.
"Majority SMTC Investors" shall mean, as of any date, the holders of a
majority of the SMTC Shares outstanding on such date.
"Majority Stockholders" shall mean, as of any date, the holders of a
majority of the Shares outstanding on such date.
- 14 -
"Management Shares" shall mean (a) all shares of Common Stock originally
issued to, or issued with respect to shares originally issued to, or held by, a
Manager, whenever issued, including, without limitation, all shares of Common
Stock issued pursuant to the exercise of any Convertible Securities and (b) all
Convertible Securities originally granted or issued to a Manager. As to any
particular Management Shares, such shares shall cease to be Management Shares
when (w) a registration statement with respect to the sale of such securities
shall have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (x) such
securities shall have been Transferred pursuant to Rule 144 or Rule 701, (y)
subject to the provisions of Section 9, such securities shall have been
otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of them shall not require registration of them under the
Securities Act and such securities may be distributed without volume limitation
or other restrictions on transfer under Rule 144 (including without application
of paragraphs (c), (e), (f) and (h) of Rule 144) or (z) such securities shall
have ceased to be outstanding. Except as otherwise provided in this Agreement,
Convertible Securities shall be treated as a number of Shares equal to the
number of Equivalent Shares represented by such Convertible Securities in all
cases where it is necessary to calculate the number of Shares held by any holder
of Management Shares.
"Managers" shall have the meaning set forth in the Preamble.
"Options" shall mean Convertible Securities in the form of options or
warrants to subscribe for, purchase or otherwise acquire either Common Stock or
other Convertible Securities.
"Pensar Investors" shall have the meaning set forth in the Preamble.
"Pensar Shares" shall mean (a) all shares of Common Stock originally
issued to, or issued with respect to shares originally issued to, or held by, a
Pensar Investor, whenever issued, including, without limitation, all shares of
Common Stock issued pursuant to the exercise of any Convertible Securities and
(b) all Convertible Securities originally granted or issued to a Pensar
Investor. As to any particular Pensar Shares, such shares shall cease to be
Pensar Shares when (w) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such registration
statement, (x) such securities shall have been Transferred pursuant to Rule 144
or Rule 701, (y) subject to the provisions of Section 9, such securities shall
have been otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of them shall not require registration of them under the
Securities Act and such securities may be distributed without volume limitation
or other restrictions on transfer under Rule 144 (including without application
of paragraphs (c), (e), (f) and (h) of Rule 144) or (z) such securities shall
have ceased to be outstanding. Except as otherwise provided in this Agreement,
Convertible Securities shall be treated as a number of Shares equal to the
number of Equivalent Shares represented by such Convertible Securities in all
cases where it is necessary to calculate the number of Shares held by any holder
of Pensar Shares.
- 15 -
"Permitted Transferee" shall mean (a) with respect to any holder of Shares
who is a natural Person, each spouse or child or other descendants of such
holder, each trust created solely for the benefit of one or more of the
aforementioned Persons and their spouses and each custodian or guardian of any
property of one or more of the aforementioned Persons in his capacity as such
custodian or guardian (each such Person set forth in this clause (a), a "Member
of the Immediate Family"), (b) with respect to Shares held by a natural Person
and distributed by will or other instrument taking effect at death of such
holder or by applicable laws of descent and distribution, such holder's estate,
executors, administrators, personal representatives, heirs, legatees or
distributees whether or not such recipients are Members of the Immediate Family
of such holder and (c) with respect to any holder of Shares, an Affiliate of
such holder or the holders of the beneficial interests (which, for purposes of
this clause (c), shall be deemed to include, without limitation, its partners,
members or stockholders) of such holder; provided, however, that no Transferee
pursuant to the above clauses (a), (b) or (c) shall be a "Permitted Transferee"
unless such Transferee has delivered to the Company a written acknowledgment and
agreement in form and substance reasonably satisfactory to the Company that such
Shares to be received by such Transferee shall remain HTM Shares, SMTC Shares or
Management Shares hereunder, as the case may be, and shall continue to be
subject to all of the provisions of this Agreement and that such Transferee
shall be bound by, and shall be a party to, this Agreement as the holder of HTM
Shares, SMTC Shares or Management Shares, as the case may be; provided, further,
that no Transfer by any party to a Permitted Transferee shall relieve such party
of any of its obligations hereunder.
"Person" shall mean any individual, partnership, corporation, company,
association, trust, joint venture, unincorporated organization, entity or
division, or any government, governmental department or agency or political
subdivision thereof.
"Public Offering" shall mean a public offering and sale of Common Stock
for cash pursuant to an effective registration statement under the Securities
Act.
"Qualified Public Offering" shall mean a Public Offering, other than any
Public Offering or sale pursuant to a registration statement on Form S-8 or
comparable form, in which the aggregate price to the public of all such common
stock sold in such offering shall exceed $55 million.
"Qualtron" shall have the meaning set forth in the Recitals.
"Qualtron Investor" shall have the meaning set forth in the Recitals.
"Qualtron Shares" shall mean (a) all shares of Common Stock originally
issued to, or issued with respect to shares originally issued to, or held by, a
Qualtron Investor, whenever issued, including, without limitation, all shares of
Common Stock issued pursuant to the exercise of any Convertible Securities and
(b) all Convertible Securities originally granted or issued to a Qualtron
Investor. As to any particular Qualtron Shares, such shares shall cease to be
Qualtron Shares when (w) a registration statement with respect to the sale of
such securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such registration
statement, (x) such securities shall have been Transferred pursuant to Rule 144
or Rule 701, (y) subject to the provisions of Section 9, such securities shall
- 16 -
have been otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of them shall not require registration of them under the
Securities Act and such securities may be distributed without volume limitation
or other restrictions on transfer under Rule 144 (including without application
of paragraphs (c), (e), (f) and (h) of Rule 144) or (z) such securities shall
have ceased to be outstanding. Except as otherwise provided in this Agreement,
Convertible Securities shall be treated as a number of Shares equal to the
number of Equivalent Shares represented by such Convertible Securities in all
cases where it is necessary to calculate the number of Shares held by any holder
of Qualtron Shares.
"Registrable Securities" shall mean (a) all shares of Common Stock, (b)
all shares of Common Stock issuable upon exercise of any Convertible Security
and (c) all shares of Common Stock directly or indirectly issued or issuable
with respect to the securities referred to in clauses (a) or (b) above by way of
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization, in each case
constituting Shares. As to any particular Registrable Securities, such shares
shall cease to be Registrable Securities when (w) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (x) such securities shall have been
Transferred pursuant to Rule 144 or Rule 701, (y) subject to the provisions of
Section 9, such securities shall have been otherwise transferred, new
certificates for them not bearing a legend restricting further transfer shall
have been delivered by the Company and subsequent disposition of them shall not
require registration of them under the Securities Act and such securities may be
distributed without volume limitation or other restrictions on transfer under
Rule 144 (including without application of paragraphs (c), (e), (f) and (h) of
Rule 144) or (z) such securities shall have ceased to be outstanding.
"Rule 144" shall mean Rule 144 under the Securities Act (or any successor
Rule).
"Rule 145 Transaction" shall mean a registration on Form S-4 pursuant to
Rule 145 of the Securities Act (or any successor Form or provision, as
applicable).
"Rule 701" shall mean Rule 701 under the Securities Act (or any successor
Rule).
"Sale" shall mean any Transfer for value.
"Securities Act" shall mean the Securities Act of 1933, as in effect from
time to time.
"Shares" shall mean all HTM Shares, SMTC Shares, Pensar Shares, Qualtron
Shares and Management Shares.
"SMTC" shall have the meaning set forth in the Recitals.
"SMTC - Canada" shall have the meaning set forth in the Preamble.
"SMTC Investors" shall have the meaning set forth in the Preamble.
- 17 -
"SMTC Shares" shall mean (a) all shares of Common Stock originally issued
to, or issued with respect to shares originally issued to, or held by, an SMTC
Investor, whenever issued, including, without limitation, all shares of Common
Stock issued pursuant to the exercise of any Convertible Securities and (b) all
Convertible Securities originally granted or issued to an SMTC Investor. As to
any particular SMTC Shares, such shares shall cease to be SMTC Shares when (w) a
registration statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement, (x) such securities
shall have been Transferred pursuant to Rule 144 or Rule 701, (y) subject to the
provisions of Section 9, such securities shall have been otherwise transferred,
new certificates for them not bearing a legend restricting further transfer
shall have been delivered by the Company and subsequent disposition of them
shall not require registration of them under the Securities Act and such
securities may be distributed without volume limitation or other restrictions on
transfer under Rule 144 (including without application of paragraphs (c), (e),
(f) and (h) of Rule 144) or (z) such securities shall have ceased to be
outstanding. Except as otherwise provided in this Agreement, Convertible
Securities shall be treated as a number of Shares equal to the number of
Equivalent Shares represented by such Convertible Securities in all cases where
it is necessary to calculate the number of Shares held by any holder of SMTC
Shares.
"Stockholders" shall mean the HTM Investors, the SMTC Investors, the
Managers, the Pensar Investors and the Qualtron Investors.
"Transfer" shall mean any sale, pledge, assignment, encumbrance or other
transfer or disposition of any Shares to any other Person, whether directly,
indirectly, voluntarily, involuntarily, by operation of law, pursuant to
judicial process or otherwise.
13. MISCELLANEOUS.
13.1. Expenses of EMSIcon Transfers. In connection with any Transfer of
Shares by EMSIcon to the Beneficial Owner of such Shares, the Company will pay,
or cause one of its subsidiaries to pay, on behalf of EMSIcon or any such
Beneficial Owner, all fees payable to governmental authorities relating to
securities regulation and anti-trust enforcement in connection with, or
resulting from, such Transfer.
13.2. Authority; Effect. Each party hereto represents and warrants to and
agrees with each other party that the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized on behalf of such party and do not violate any agreement or other
instrument applicable to such party or by which its assets are bound. This
Agreement does not, and shall not be construed to, give rise to the creation of
a partnership among any of the parties hereto, or to constitute any of such
parties members of a joint venture or other association.
- 18 -
13.3. Notices. Any notices and other communications required or permitted
in this Agreement shall be effective if in writing and (a) delivered personally
or (b) sent (i) by FederalExpress, DHL or UPS or (ii) by registered or certified
mail, postage prepaid, in each case, addressed as follows:
If to the Company to it:
c/o EMSIcon
with a copy to:
SMTC Manufacturing Corporation of Canada
000 Xxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Attention: President
If to EMSIcon, to it:
c/o Bain Capital, Inc.
Two Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Xxx X. Xxxxxx
with copies to:
Celerity Management Co., Inc.
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
and
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
and
Xxxxxxxxxx, Xxxxx & Xxxxxx, P.C.
000 Xxxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxxxxx Xxxxxx, Esq.
- 19 -
If to any other holder of Shares, to him at the address set forth in the
stock record book of the Company.
Notice to the holder of record of any shares of capital stock shall be
deemed to be notice to the holder of such shares for all purposes hereof.
Unless otherwise specified herein, such notices or other communications
shall be deemed effective (a) on the date received, if personally delivered, (b)
two business days after being sent by Federal Express, DHL or UPS and (c) three
business days after deposit with the U.S. Postal Service, if sent by registered
or certified mail. Each of the parties hereto shall be entitled to specify a
different address by giving notice as aforesaid to each of the other parties
hereto.
13.4. Binding Effect, Etc. Except for restrictions on Transfer of Shares
set forth in other agreements, plans or other documents, this Agreement
constitutes the entire agreement of the parties with respect to its subject
matter, supersedes all prior or contemporaneous oral or written agreements or
discussions with respect to such subject matter, and shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
representatives, successors and assigns. Upon execution by any party, this
Agreement shall become a valid and binding obligation of such party
notwithstanding the failure of any Stockholder to execute this Agreement.
13.5. Descriptive Headings. The descriptive headings of this Agreement are
for convenience of reference only, are not to be considered a part hereof and
shall not be construed to define or limit any of the terms or provisions hereof.
13.6. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one instrument.
13.7. Severability. In the event that any provision hereof would, under
applicable law, be invalid or unenforceable in any respect, such provision shall
be construed by modifying or limiting it so as to be valid and enforceable to
the maximum extent compatible with, and possible under, applicable law. The
provisions hereof are severable, and in the event any provision hereof should be
held invalid or unenforceable in any respect, it shall not invalidate, render
unenforceable or otherwise affect any other provision hereof.
14. GOVERNING LAW, ETC.
14.1. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic substantive laws of the State of Delaware without
giving effect to any choice or conflict of laws provision or rule that would
cause the application of the domestic substantive laws of any other
jurisdiction.
14.2. Consent to Jurisdiction. Each party to this Agreement, by its
execution hereof, (a) hereby irrevocably submits to the exclusive jurisdiction
of the state courts of the United States District Court for the District of
Delaware for the purpose of any action, claim, cause of action or suit (in
contract, tort or otherwise), inquiry, proceeding or investigation arising out
of or based
- 20 -
upon this Agreement or relating to the subject matter hereof, (b) hereby waives
to the extent not prohibited by applicable law, and agrees not to assert, and
agrees not to allow any of its subsidiaries to assert, by way of motion, as a
defense or otherwise, in any such action, any claim that it is not subject
personally to the jurisdiction of the above-named courts, that its property is
exempt or immune from attachment or execution, that any such proceeding brought
in one of the above-named courts is improper, or that this Agreement or the
subject matter hereof or thereof may not be enforced in or by such court and (c)
hereby agrees not to commence or maintain any action, claim, cause of action or
suit (in contract, tort or otherwise), inquiry, proceeding or investigation
arising out of or based upon this Agreement or relating to the subject matter
hereof or thereof other than before one of the above-named courts nor to make
any motion or take any other action seeking or intending to cause the transfer
or removal of any such action, claim, cause of action or suit (in contract, tort
or otherwise), inquiry, proceeding or investigation to any court other than one
of the above-named courts whether on the grounds of inconvenient forum or
otherwise. Notwithstanding the foregoing, to the extent that any party hereto is
or becomes a party in any litigation in connection with which it may assert
indemnification rights set forth in this agreement, the court in which such
litigation is being heard shall be deemed to be included in clause (a) above.
Each party hereto hereby consents to service of process in any such proceeding
in any manner permitted by Delaware law, and agrees that service of process by
registered or certified mail, return receipt requested, at its address specified
pursuant to Section 13.3 is reasonably calculated to give actual notice.
14.3. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW
WHICH CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES AND COVENANTS THAT IT
WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO
TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION, CLAIM, CAUSE OF
ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY, PROCEEDING OR
INVESTIGATION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER
HEREOF OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS
CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING.
EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHER PARTIES
HERETO THAT THIS SECTION 14.3 CONSTITUTES A MATERIAL INDUCEMENT UPON WHICH THEY
ARE RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT. ANY PARTY HERETO MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 14.3 WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO
TRIAL BY JURY.
14.4. Exercise of Rights and Remedies. No delay of or omission in the
exercise of any right, power or remedy accruing to any party as a result of any
breach or default by any other party under this Agreement shall impair any such
right, power or remedy, nor shall it be construed as a waiver of or acquiescence
in any such breach or default, or of any similar breach or default occurring
later; nor shall any such delay, omission nor waiver of any single breach or
default be deemed a waiver of any other breach or default occurring before or
after that waiver
- 21 -
IN WITNESS WHEREOF, each of the undersigned has duly executed this
Agreement (or caused this Agreement to be executed on its behalf by its officer
or representative thereunto duly authorized) under seal as of the date first
above written.
THE COMPANY: SMTC CORPORATION
By /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
Title: President
THE STOCKHOLDERS: EMSICON INVESTMENTS, LLC
By /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Member
XXXX CAPITAL FUND VI, L.P.
By: Xxxx Capital Partners VI, L.P.,
its general partner
By: Xxxx Capital Investors VI, Inc.,
its general partner
By /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Authorized Signatory
SANKATY HIGH YIELD ASSET PARTNERS, L.P.
By /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President & Portfolio
Manager
XXXX CAPITAL V MEZZANINE FUND, L.P.
By: Xxxx Capital V Mezzanine Partners, L.P.,
its general partner
By: Xxxx Capital Investors V, Inc.,
its general partner
By /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Authorized Signatory
BCM CAPITAL PARTNERS, L.P.
By: Xxxx Capital V Mezzanine Partners, L.P.
its general partner
By: Xxxx Capital Investors V, Inc.,
its general partner
By /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Authorized Signatory
BCIP ASSOCIATES II
BCIP TRUST ASSOCIATES II
BCIP ASSOCIATES II-B
BCIP ASSOCIATES II-C
By: Xxxx Capital, Inc.,
their Managing Partner
By /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Authorized Signatory
CELERITY EMSICON, LLC
By /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: An Authorized Person
X.X. XXXXXX CONSULTING INC.
By /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
Title: President
XXXXXX INC.
By /s/ Xxxxxxx X'Xxxxxxx
--------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: President
XXXXXX ELECTRONICS GROUP LIMITED
By /s/ Xxxxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Secretary-Treasurer
/s/ Xxxx Xxxxxx
--------------------------------
Xxxx Xxxxxx
/s/ Xxxxxx Xxxxxxx
--------------------------------
Xxxxxx Xxxxxxx
/s/ Xxxx Xxxxxx
--------------------------------
Xxxx Xxxxxx
/s/ Xxxxxxx X'Xxxxxxx
--------------------------------
Xxxxx X'Xxxxxxx
THE QUALTRON INVESTORS:
/s/ Cillian Feiritear
--------------------------------
Cillian Feiritear
/s/ Xxxxxxx Xxxxx
--------------------------------
Xxxxxxx Xxxxx
/s/ Xxxxxxx Xxxxx
--------------------------------
Xxxxxxx Xxxxx, by his duly authorized
attorney, Cillian Feiritear
ENTERPRISE EQUITY (IRL) LIMITED
By /s/ Xxxxx X'Xxxxxx
--------------------------------
Name: Xxxxx X'Xxxxxx
Title: Chief Executive/Company Secretary
