Exhibit 5
EXECUTION COPY
STANDSTILL AGREEMENT dated as of July 6, 1999
(this "Agreement"), among TEKTRONIX, INC., an Oregon
corporation (the "Company"), RELATIONAL INVESTORS, L.P., a
Delaware limited partnership, RELATIONAL FUND PARTNERS,
L.P., a Delaware limited partnership, RELATIONAL COAST
PARTNERS, L.P., a Delaware limited partnership, RELATIONAL
PARTNERS, L.P., a Delaware limited partnership
(collectively, the "Partnerships"), RELATIONAL INVESTORS,
LLC, a Delaware limited liability company and the general
partner of each of the Partnerships ("RILLC"), XXXXX X.
XXXXXXXXX, XXXXX X. XXXXXXXXXX and XXXX X. XXXX (the
"Managing Members"; the Partnerships, RILLC and the Managing
Members are hereinafter referred to as the "Shareholders").
Each of the Shareholders has filed with the
Securities and Exchange Commission a statement of beneficial
ownership on Schedule 13D (as amended through the date hereof,
the "Schedule 13D") reporting that the Shareholders
are the beneficial owners (such term as used in this
Agreement being as defined in the Company's Rights Agreement
dated August 16, 1990) in the aggregate of 4,674,000 shares
of Common Stock, without par value ("Common Stock"), of the
Company, constituting (as of May 29, 1999) 9.96% of the
outstanding shares of Common Stock.
The Shareholders and the Company are entering into
this Agreement to define the future relationship between the
Shareholders and the Company in consideration of the mutual
covenants contained herein. Accordingly, it is hereby
agreed as follows:
SECTION 1. The Shareholders' Representations and
Warranties. Each Shareholder represents and warrants to the
Company that:
(a) Such Shareholder is duly authorized to
execute, deliver and perform this Agreement.
(b) This Agreement has been duly executed by such
Shareholder, is a valid and binding agreement of such
Shareholder and is enforceable against such Shareholder
in accordance with its terms.
(c) The execution, delivery and performance by
such Shareholder of this Agreement does not violate or
conflict with or result in a breach of or constitute
(or with notice or lapse of time or both constitute) a
default under such Shareholder's organizational
documents (in the case of the Partnerships and RILLC)
or under any agreement to which such Shareholder is a
party.
(d) The Shareholders are the beneficial owners of
4,674,000 shares of Common Stock, which represent all
of the shares of Common Stock beneficially owned by the
Shareholders on the date hereof.
(e) The Managing Members are the only managing
members of RILLC as of the date hereof.
SECTION 2. The Company's Representations and
Warranties. The Company represents and warrants to the
Shareholders that:
(a) The Company had outstanding as of May 29,
1999, 46,909,208 shares of Common Stock.
(b) The Company is duly authorized to execute,
deliver and perform this Agreement.
(c) This Agreement has been duly executed by the
Company, is a valid and binding agreement of the
Company and is enforceable against the Company in
accordance with its terms.
(d) The execution, delivery and performance by
the Company of this Agreement does not violate or
conflict with or result in a breach of or constitute
(or with notice of or lapse of time or both constitute)
a default under the Company's Restated Articles of
Incorporation or By-laws or under any agreement to
which the Company is a party.
SECTION 3. Standstill Provisions. (a) The
Shareholders agree that none of the Shareholders or any
person controlled by any Shareholder or any combination of
the Shareholders (a "Controlled Person", which term shall
include any managing member of RILLC) shall, directly or
indirectly, acquire any shares of Common Stock (except by
way of stock dividends or other distributions made to all
holders of Common Stock) if immediately following such
acquisition the aggregate number of shares of Common Stock
then owned by the Shareholders and their affiliates and
associates (such terms as used in this Agreement being as
defined in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) would be more than 10% of the outstanding
shares of Common Stock (the "Ownership Cap Provision").
(b) The Shareholders further agree that none of
the Shareholders or any Controlled Person shall, directly or
indirectly, alone or in concert with any other person:
(i) make, or in any way participate in, any "solicitation"
of "proxies" (such terms as used in this Agreement being as
defined in Regulation 14A under the Exchange Act) relating
to any shares of Common Stock; (ii) call, or in any way
consent to or participate in a call for, any special meeting
of shareholders of the Company; (iii) request, or take any
action to obtain or retain, any list of holders of Common
Stock; (iv) initiate, propose or participate in the making
of any shareholder proposal relating to the Company;
(v) deposit any shares of Common Stock in a voting trust or
subject any shares of Common Stock to any voting agreement
or arrangement (including any grant of an irrevocable
proxy); (vi) form, join or in any way participate in a
partnership, limited partnership, limited liability company,
syndicate or other group (including a "group" as defined in
Section 13(d) under the Exchange Act) with respect to, or
for the purpose of acquiring, holding or disposing of, any
shares of Common Stock, or any securities the ownership of
which would make the owner thereof a beneficial owner of
shares of Common Stock, except, in any such case, to the
extent existing among the Shareholders and disclosed in the
Schedule 13D; (vii) make any offer or proposal with respect
to the acquisition, directly or indirectly, of the Company
or any of its securities or assets or with respect to any
business combination or similar transaction with, change in
control of, or restructuring, recapitalization or other
extraordinary transaction involving the Company or any of
its assets, provided that this clause (vii) shall not
(x) limit the right of any Shareholder to acquire shares of
Common Stock in a manner that does not violate the Ownership
Cap Provision, (y) prohibit the Shareholders from making a
request, suggestion or proposal to the Chairman of the
Company's Board of Directors as long as such action does not
require the Company to make any public disclosure relating
thereto or (z) prohibit or otherwise prevent Xxxxx X.
Xxxxxxxxx or any additional director referred to in
Section 4(a) from exercising his fiduciary duties to the
Company's shareholders as a director of the Company as
required by applicable law; (viii) except as otherwise
provided in Section 4(a), seek additional representation on,
the removal of any members of, or a change in the
composition or size of, the Company's Board of Directors;
(ix) disclose any intent, purpose, plan or proposal with
respect to the Company, its Board of Directors, management,
policies or affairs or any of its securities or assets or
this Agreement that is inconsistent with the provisions of
this Agreement, including any intent, purpose, plan or
proposal that is conditioned on, or would require waiver,
amendment, nullification or invalidation of, any provision
of this Agreement; (x) take any action that could require
the Company to make any public disclosure relating to any
such intent, purpose, plan, proposal or condition; or
(xi) assist, advise or encourage any person with respect to,
or seeking to do, any of the foregoing.
(c) Nothing in this Section 3 shall prohibit the
Shareholders from soliciting proxies for the sole purpose of
maintaining the representation on the Company's Board of
Directors contemplated by this Agreement in the event of an
"election contest" (such term as used in this Agreement
being as used in Rule 14a-11 under the Exchange Act) not
initiated by the Shareholders or their affiliates or
associates.
SECTION 4. Board Representation. (a) The
Company will, within ten days following the execution of
this Agreement, cause Xxxxx X. Xxxxxxxxx to be elected to
the Company's Board of Directors in the class of directors
with a term expiring at the annual meeting of the Company's
shareholders to be held in 2000, and if Xx. Xxxxxxxxx (or,
if any additional director is elected to the Company's Board
of Directors pursuant to the next two sentences prior to the
annual meeting of the Company's shareholders to be held in
1999, such additional director) is not elected as a director
at the annual meeting of the Company's shareholders to be
held in 1999, then the Company will promptly after such
meeting cause Xx. Xxxxxxxxx (and such additional director,
if applicable) to be elected to the Company's Board of
Directors in such class of directors. At any time prior to
March 1, 2000, Xx. Xxxxxxxxx may serve notice on the Company
to the effect that the Shareholders desire to cause the
election of an additional member to the Company's Board of
Directors, which notice shall specify three individuals who
are qualified to serve as members of the Company's Board of
Directors and who are neither affiliates nor associates of
any of the Shareholders (and who shall agree to resign as a
member of the Board of Directors of the Company
and NewCo (as defined below) if required by the terms of
this Agreement and the NewCo Agreement (as defined below)).
In such event, the Company will, within 20 days following
receipt of such notice, cause one of such individuals to be
elected to the Company's Board of Directors, with a term
coincident with Xx. Xxxxxxxxx'x term as a member of the
Company's Board of Directors. If during the term of this
Agreement the Company effects a spin-off or similar
distribution to its shareholders of its Color
Printing and Imaging Products business (such newly formed
spun-off or distributed entity, "NewCo"), then
(i) immediately prior to consummation of such spin-off or
other distribution and subject to the entering into of a
shareholder agreement among NewCo and the Shareholders on
terms substantially identical to the terms of this
Agreement (the "NewCo Agreement"), the Company will cause
Xx. Xxxxxxxxx to be elected to NewCo's Board of Directors,
with a term ending on the expiration of such shareholder
agreement (and, if an additional director shall be elected
to the Company's Board of Directors as provided above, such
additional director shall be elected to NewCo's Board of
Directors at the later of Xx. Xxxxxxxxx'x election to NewCo's
Board of Directors or such additional director's election to
the Company's Board of Directors, with a term coincident with
Xx. Xxxxxxxxx'x term as a member of NewCo's Board of Directors)
And (ii) NewCo and the Shareholders shall enter into the
Newco Agreement prior to effecting such transaction.
(b) If the Company elects not to nominate
Xx. Xxxxxxxxx (and, if applicable, the additional director
referred to in paragraph (a) of this Section 4) for
reelection to the Company's Board of Directors at the annual
meeting of the Company's shareholders to be held in 2000 or
the Company's Board of Directors determines that it does not
wish Xx. Xxxxxxxxx (or such additional director) to continue
as a member thereof following the annual meeting of the
Company's shareholders to be held in 2000, the Company
shall serve notice on Xx. Xxxxxxxxx to such effect at
least 20 days prior to the last day on which
shareholders of the Company are entitled to give notice to
the Company with respect to such meeting under the
provisions of the Company's By-laws relating to shareholder
nomination of directors. In the event that such notice is
given, Xx. Xxxxxxxxx (and any such additional director) may,
at his election, serve written notice of his resignation as
a member of the Company's Board of Directors (to take effect
immediately upon receipt of such notice by the Company), and
if for any reason Xx. Xxxxxxxxx (or any such additional
director) is a member of the Company's Board of Directors
immediately following the annual meeting of the Company's
shareholders to be held in 2000 other than as a result of
such person having been elected as a member of the Company's
Board of Directors at such annual meeting, then such person
shall immediately resign as a member of the Company's Board
of Directors. If Xx. Xxxxxxxxx and any such additional
director resign following the giving of the notice referred
to above and prior to the termination of this Agreement,
then immediately upon the effectiveness of such resignations
all provisions of this Agreement shall cease and be of no
further force and effect, except that the Ownership Cap
Provision shall remain in full force and effect for 30 days
following the date of effectiveness of such resignations.
SECTION 5. Specific Performance. The
Shareholders, on the one hand, and the Company, on the other
hand, agree that the parties would not have an adequate
remedy at law for money damages and that money damages would
be incalculable if any of the covenants or agreements in
this Agreement were not performed in accordance with its
terms and therefore further agree that the parties shall be
entitled to specific enforcement of such covenants or
agreements and to injunctive and other equitable relief in
addition to any other remedy to which they may be entitled,
at law or in equity. No delay or failure by any party
hereto in exercising any right, power or privilege hereunder
will operate as a waiver thereof, nor will any single or
partial exercise thereof preclude any other or further
exercise of any right, power or privilege hereunder.
SECTION 6. Survival of Representations and
Warranties. The representations and warranties contained in
this Agreement shall survive the execution of this Agreement
and any investigation at any time by or on behalf of any
Shareholder or the Company and shall terminate at the close
of business on the date on which this Agreement terminates.
SECTION 7. Entire Agreement; No Third-Party
Beneficiaries; Assignment. This Agreement (i) constitutes
the entire agreement between the parties with respect to the
subject matter hereof and supersedes all other prior
agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof and is
not intended to confer upon any person other than the
parties hereto any rights or remedies hereunder and
(ii) shall not be assigned by operation of law or otherwise
without the prior written consent of the other parties. Any
attempted assignment or transfer in violation of this
Section 7 shall be void and of no effect. Subject to the
foregoing, this Agreement shall be binding upon the
successors and assigns of the Shareholders and any person
controlled by any of the Shareholders or such successors and
assigns.
SECTION 8. Severability. If any term, provision,
covenant or restriction of this Agreement is held by a court
of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in
full force and effect, unless such action would
substantially impair the benefits to any party of the
remaining provisions of this Agreement. The parties shall
endeavor in good faith negotiations to replace any invalid,
void or unenforceable provision with a valid and enforceable
provision the effects of which come as close as possible to
those of such invalid, void or unenforceable provision.
SECTION 9. Notices. Any notices and other
communications required to be given pursuant to this
Agreement shall be delivered by hand, by registered or
certified mail, postage prepaid, return receipt requested,
by private courier, by facsimile or by telex, as follows:
If to the Company:
Tektronix, Inc.
00000 X.X. Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxx 00000
Attention: Vice President and
General Counsel
Telecopier: (000) 000-0000
with a copy to:
Cravath, Swaine & Xxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
Telecopier: (000) 000-0000
If to the Shareholders:
c/o Relational Investors, LLC
0000 Xx Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
Telecopier: (000) 000-0000
SECTION 10. Term. Except as otherwise provided
in Section 4(b), this Agreement will terminate on the first
to occur of (i) the annual meeting of the Company's
shareholders to be held in 2000 or, if such annual meeting
has not been held by December 31, 2000, December 31, 2000,
and (ii) at the non-breaching party's option, upon material
breach of this Agreement by the other party. Upon any
termination of this Agreement by the Company pursuant to
clause (ii) above, at the request of the Company,
Xx. Xxxxxxxxx (and any additional director referred to in
Section 4(a)) will resign.
SECTION 11. Governing Law; Jurisdiction; etc.
This Agreement shall be governed by and construed in
accordance with the laws of the State of Oregon, without
regard to any applicable conflicts of law principles of such
State. Each of the parties irrevocably submits to the
exclusive jurisdiction and service and venue in any federal
or state court sitting in the State of Oregon for the
purposes of any action, suit or proceeding relating to this
Agreement. Each of the parties irrevocably and
unconditionally waives any objections to the laying of venue
of any action, suit or proceeding relating to this Agreement
in any federal or state court sitting in the State of
Oregon, and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court
that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum. This
Agreement may be executed in one or more counterparts, which
together will constitute a single agreement. This Agreement
may not be amended except by a writing signed by all of the
parties.
SECTION 12. Interpretation; Certain Definitions.
The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. For all purposes
hereof: (i) "including" means including, without
limitation; and (ii) "person" means any individual, firm,
corporation, partnership, limited liability company, trust,
joint venture or other entity.
SECTION 13. Death or Disability. If (i) Xx.
Xxxxxxxxx dies or becomes disabled such that he cannot perform
his duties as a member of the Company's Board of Directors
during the term of this Agreement and (ii) on the date of
Xx. Xxxxxxxxx'x death or disability (the "Determination Date")
Xx. Xxxxxxxxx is serving as a member of the Company's Board of
Directors, then (A) in the event that on the Determination
Date Xxxxx X. Xxxxxxxxxx is a managing member of RILLC (or holds the
analogous position in any successor entity to RILLC), within
ten days following the Determination Date the Company will
cause Xx. Xxxxxxxxxx to be elected to the Company's Board of
Directors to serve in Xx. Xxxxxxxxx'x stead (provided,
however, that in the case Xx. Xxxxxxxxx is disabled, the
Company shall not cause Xx. Xxxxxxxxxx to be so elected unless
Xx. Xxxxxxxxx'x resignation as a member of the Company's Board
of Directors shall have become effective prior thereto);
(B) in the event that Xx. Xxxxxxxxxx is not a managing member
of RILLC (or does not hold the analogous position in any successor
entity to RILLC) on the Determination Date, (1) the
Shareholders may serve notice on the Company specifying three
individuals who are qualified to serve as members of the
Company's Board of Directors and who are neither affiliates
nor associates of any of the Shareholders (and who shall agree
to resign as a member of the Board of Directors of the Company
and NewCo if required by the terms of this Agreement and the
NewCo Agreement) and (2) the Company
will, within 20 days following receipt of such notice, cause
one of such individuals to be elected to the Company's Board
of Directors to serve in Xx. Xxxxxxxxx'x xxxxx (provided,
however, that in the case Xx. Xxxxxxxxx is disabled, the
Company shall not cause such individual to be so elected
unless Xx. Xxxxxxxxx'x resignation as a member of the Company's
Board of Directors shall have become effective prior thereto)
(Xx. Xxxxxxxxxx, if elected to serve in Xx. Xxxxxxxxx'x xxxxx,
or such other director elected to serve in Xx. Xxxxxxxxx'x stead
being referred to herein as "Xxxxxxxxx'x Successor"); and
(C) in the event that Xxxxxxxxx'x Successor dies or becomes
disabled such that he cannot perform his duties as a member of
the Company's Board of Directors during the term of this Agreement
and on the date of such death or disability Xxxxxxxxx'x Successor is
serving as a member of the Company's Board of Directors, then
the procedures set forth in clauses (1) and (2) of the
immediately preceding clause (B) shall be followed to elect a
director to serve in Xxxxxxxxx'x Successor's stead (provided,
however, that in the case Xxxxxxxxx'x Successor is disabled,
the Company shall not cause such individual to be so elected
unless Xxxxxxxxx'x Successor's resignation as a member of the
Company's Board of Directors shall have become effective
prior thereto) (any such person, if elected, also being
referred to herein as Xxxxxxxxx'x Successor); provided
further, however, that the Company shall have no obligations
under this Section 13 to cause any person to be elected to
the Company's Board of Directors at any time after, or to
serve for any period after, the termination of this
Agreement. If a Xxxxxxxxx'x Successor is elected to the
Company's Board of Directors pursuant to this Section 13,
then any reference in this Agreement to Xx. Xxxxxxxxx will be
understood to mean such person then serving as Xxxxxxxxx'x
Successor.
SECTION 14. Further Actions. Subject to the
terms and conditions of this Agreement, each of the parties
agrees to use all commercially reasonable efforts to take,
or cause to be taken, all action necessary, proper or
advisable to consummate and make effective the transactions
contemplated by this Agreement.
IN WITNESS WHEREOF, the Company and each
Shareholder have caused this Agreement to be duly executed
as of the day and year first above written.
TEKTRONIX, INC.,
by /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman, Chief
Executive Officer
and President
RELATIONAL INVESTORS, L.P.,
by RELATIONAL INVESTORS,
LLC, as General Partner
by /s/ Xxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Member
RELATIONAL FUND PARTNERS,
L.P.,
by RELATIONAL INVESTORS,
LLC, as General Partner
by /s/ Xxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Member
RELATIONAL COAST PARTNERS, L.P.,
by RELATIONAL INVESTORS,
LLC, as General Partner
by /s/ Xxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Member
RELATIONAL PARTNERS, L.P.,
by RELATIONAL INVESTORS,
LLC, as General Partner
by /s/ Xxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Member
RELATIONAL INVESTORS, LLC,
by /s/ Xxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Member
/s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxxx
/s/ Xxxxx X. Xxxxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxxxx
Xxxx X. Xxxx
----------------------------------
Xxxx X. Xxxx
