1
STOCKHOLDERS' AGREEMENT
THIS STOCKHOLDERS' AGREEMENT (this "Agreement"), dated as of October
21, 1998, is made by and among EG&G, Inc., a Massachusetts corporation (the
"Parent"), Lighthouse Weston Corp., a Delaware corporation and a wholly owned
subsidiary of the Parent (the "Purchaser"), and the holders (the "Stockholders")
of the shares of Common Stock, $0.01 par value (the "Shares"), of Lumen
Technologies, Inc., a Delaware corporation (the "Company"), listed on SCHEDULE A
hereto.
WHEREAS, concurrently herewith, the Parent, the Purchaser and the
Company are entering into an Agreement and Plan of Merger (as it may be amended
from time to time in the future in accordance with its terms, the "Merger
Agreement"), pursuant to which the Purchaser agrees to make a tender offer (the
"Offer") for all of the Shares at $7.75 per share, net to the seller in cash, to
be followed by the merger of the Purchaser with and into the Company (the
"Merger"), with the Company being the entity surviving the Merger and becoming a
wholly owned subsidiary of the Parent; and
WHEREAS, in order to induce the Parent and the Purchaser to enter into
the Merger Agreement, the Parent and the Purchaser have requested the
Stockholders, and the Stockholders have agreed, to enter into this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
AGREEMENT TO TENDER
Section 1.1 TENDER OF SHARES. Each Stockholder hereby agrees to
validly tender, and not to withdraw, pursuant to and in accordance with the
terms of the Offer, (i) within five business days after the commencement of the
Offer, all Shares owned by such Stockholder as of the execution and delivery of
this Agreement (as indicated on SCHEDULE A hereto) and, (ii) prior to the
scheduled expiration of the Offer, any additional Shares hereafter acquired by
such Stockholder (whether by purchase, exercise of options or otherwise).
Section 1.2 PROCEDURE FOR TENDERING. Within the time periods
specified in Section 1.1, the Stockholder shall deliver to the depositary
designated in the Offer (i) a duly completed and signed letter of transmittal
with respect to the Shares required to be tendered pursuant to Section 1.1, (ii)
certificates representing such Shares and (iii) all other documents or
instruments required to be delivered pursuant to the terms of the Offer.
2
Section 1.3 PAYMENT OF OFFER PRICE. The parties agree that each
Stockholder will, for all Shares tendered in the Offer and accepted for payment
and paid for by the Purchaser, receive the same per share consideration paid to
other stockholders of the Company who have tendered Shares into the Offer.
ARTICLE II
VOTING AGREEMENT; IRREVOCABLE GRANT OF PROXY
Section 2.1 VOTING AGREEMENT. Each Stockholder hereby agrees to vote
all Shares that such Stockholder is entitled to vote at the time of any vote to
approve and adopt the Merger Agreement, the Merger and all agreements related to
the Merger and any actions related thereto at any meeting of the stockholders of
the Company, and at any adjournment thereof (or by written consent in lieu of a
meeting), at which such Merger Agreement and other related agreements (or any
amended version thereof), or such other actions, are submitted for the
consideration and vote of the stockholders of the Company. Each Stockholder
hereby agrees that it will not vote (or give a written consent with respect to)
any Shares in favor of the approval of any (i) Acquisition Proposal, (ii)
reorganization, recapitalization, liquidation or winding up of the Company or
any other extraordinary transaction involving the Company, (iii) corporate
action the consummation of which would frustrate the purposes, or prevent or
delay the consummation, of the transactions contemplated by the Merger
Agreement, or (iv) other matter relating to, or in connection with, any of the
foregoing matters.
Section 2.2 IRREVOCABLE PROXY. Each Stockholder hereby revokes any
and all previous proxies granted with respect to such Stockholder's Shares. Each
Stockholder hereby grants a proxy appointing the Purchaser as such Stockholder's
attorney-in-fact and proxy, with full power of substitution, for and in such
Stockholder's name, to vote, express consent or dissent, or otherwise to utilize
such voting power in such manner and upon such matters as the Purchaser or its
proxy or substitute shall, in the Purchaser's sole discretion, deem proper with
respect to such Stockholder's Shares. The proxy granted by each Stockholder
pursuant to this Section 2.2 is irrevocable and is granted in consideration of
the Purchaser's entering into this Agreement and the Merger Agreement and
incurring certain related fees and expenses. The proxy grant by each Stockholder
shall be revoked upon termination of this Agreement in accordance with its
terms. At the Purchaser's request, each Stockholder shall perform such further
acts and execute such further documents as may reasonably be required to vest in
the Purchaser the sole power to vote the Shares during the term of the proxy
granted herein.
-2-
3
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each of the Stockholders severally represents and warrants to the
Purchaser that:
Section 3.1 VALID TITLE. Such Stockholder is the sole, true, lawful
beneficial owner of such Stockholder's Shares with no restrictions on such
Stockholder's voting rights or rights of disposition pertaining thereto, other
than restrictions imposed under applicable securities laws. None of such
Stockholder's Shares is subject to any voting trust or other agreement or
arrangement with respect to the voting of such Shares.
Section 3.2 NON-CONTRAVENTION. The execution, delivery and
performance by such Stockholder of this Agreement and the consummation of the
transactions contemplated hereby (i) are within such Stockholder's powers, have
been duly authorized by all necessary action (including any consultation,
approval or other action by or with any other person), (ii) require no action by
or in respect of, or filing with, any governmental body, agency, official or
authority (except as required under Section 16 of the Exchange Act), and (iii)
do not and will not contravene or constitute a default under, or give rise to a
right of termination, cancellation or acceleration of any right or obligation of
such Stockholder or to a loss of any benefit of such Stockholder under, any
statute, rule or regulation applicable to such Stockholder, or injunction,
order, decree, or other instrument binding on such Stockholder or result in the
imposition of any lien on any asset of such Stockholder.
Section 3.3 BINDING EFFECT. This Agreement has been duly executed and
delivered by such Stockholder and is the valid and binding agreement of such
Stockholder, enforceable against such Stockholder in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights generally and except as may be
limited by general principles of equity which may limit the availability of
remedies (whether in a proceeding at law or in equity). If this Agreement is
being executed in a representative or fiduciary capacity, the person signing
this Agreement has full power and authority to enter into and perform such
Agreement.
Section 3.4 TOTAL SHARES. The number of Shares set forth on
SCHEDULE A hereto are the only Shares legally or beneficially owned by such
Stockholder and, except as set forth on SCHEDULE A or Section 4.3 of the
Disclosure Schedule, such Stockholder owns no options to purchase or rights to
subscribe for or otherwise acquire any securities of the Company and has no
other interest in or voting rights with respect to any securities of the
Company.
-3-
4
Section 3.5 FINDER'S FEES. No investment banker, broker or finder is
entitled to a commission or fee from the Company in respect of this Agreement
based upon any arrangement or agreement made by or on behalf of such
Stockholder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE
PURCHASER AND THE PARENT
Each of the Purchaser and the Parent represents and warrants to each of
the Stockholders that the Purchaser and the Parent has all requisite corporate
power and authority to enter into this Agreement and to perform its obligations
hereunder. The execution, delivery and performance by each of the Purchaser and
the Parent of this Agreement and the consummation by the Purchaser and the
Parent of the transactions contemplated hereby have been duly authorized by the
Board of Directors of each of the Purchaser and the Parent, and no other
corporate action on the part of the Purchaser or the Parent is necessary to
authorize the execution, delivery or performance by the Purchaser and the Parent
of this Agreement and the consummation by the Purchaser and the Parent of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Purchaser and the Parent and is a valid and binding agreement
of the Purchaser and the Parent, enforceable against each of them in accordance
with its terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally and
except as may be limited by general principles of equity which may limit the
availability of remedies (whether in a proceeding at law or in equity).
ARTICLE V
COVENANTS OF THE STOCKHOLDERS
Each of the Stockholders hereby covenants and agrees that:
Section 5.1 NO PROXIES FOR OR ENCUMBRANCES ON STOCKHOLDER SHARES.
Except as provided in this Agreement, such Stockholder shall not, during the
term of this Agreement, without the prior written consent of the Purchaser,
directly or indirectly, (i) grant any proxies or enter into any voting trust or
other agreement or arrangement with respect to the voting of any Shares or (ii)
except for any transfer by gift of options to acquire Shares by the Stockholder
to any charitable organization made with the prior written consent of the
Purchaser, sell, assign, transfer, encumber or otherwise dispose of, or enter
into any contract, option or other arrangement or understanding with respect to
the direct or indirect sale, assignment, transfer, encumbrance or other
disposition of, any Shares. Such Stockholder shall not seek or solicit any such
sale, assignment, transfer, encumbrance or other disposition or any
-4-
5
such contract, option or other arrangement or assignment or understanding and
agrees to notify the Purchaser promptly and to provide all details required by
the Purchaser if such Stockholder shall be approached or solicited, directly or
indirectly, by any person with respect to any of the foregoing.
Section 5.2 CONDUCT OF STOCKHOLDERS. Such Stockholder will not (i)
take, agree or commit to take any action that would make any representation and
warranty of such Stockholder hereunder inaccurate in any respect as of any time
prior to the termination of this Agreement or (ii) omit, or agree or commit to
omit, to take any action necessary to prevent any such representation or
warranty from being inaccurate in any respect at any such time.
ARTICLE VI
MISCELLANEOUS
Section 6.1 EXPENSES. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense.
Section 6.2 FURTHER ASSURANCES. Except as otherwise provided in the
Merger Agreement, the Stockholders will each execute and deliver or cause to be
executed and delivered all further documents and instruments and use their
respective best efforts to secure such consents and take all such further action
as may be reasonably necessary in order to consummate the transactions
contemplated hereby or to enable the Purchaser and any assignee to exercise and
enjoy all benefits and rights of the Stockholders with respect to the
Stockholder Shares.
Section 6.3 ADDITIONAL AGREEMENTS. Subject to the terms and
conditions of this Agreement, each of the parties hereto agrees to use all
reasonable efforts to take, or cause to be taken, all action and to do, or cause
to be done, all things reasonably necessary, proper or advisable under
applicable laws and regulations and which may be required under any agreements,
contracts, commitments, instruments, understandings, arrangements or
restrictions of any kind to which such party is a party or by which such party
is governed or bound, to consummate and make effective the transactions
contemplated by this Agreement.
Section 6.4 SPECIFIC PERFORMANCE. The parties hereto agree that the
Purchaser may be irreparably damaged if for any reason any Stockholder failed to
perform any of its obligations under this Agreement, and that the Purchaser
would not have any adequate remedy at law for money damages in such event.
Accordingly, the Purchaser shall be entitled to specific performance and
injunctive and other equitable relief to enforce the performance of this
Agreement by each Stockholder. This provision is without prejudice to any other
rights that the Purchaser may have
-5-
6
against any Stockholder for any failure to perform its obligations under this
Agreement.
Section 6.5 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be deemed to have been duly given when delivered
in person, by telecopy, or by registered or certified mail (postage prepaid,
return receipt requested) or by reputable overnight courier: if to the Parent or
the Purchaser, at its address set forth below its signature hereto; and if to a
Stockholder, to such Stockholder at his address set forth on SCHEDULE A hereto.
Section 6.6 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained in this Agreement shall survive
delivery of and payment for the Stockholder Shares.
Section 6.7 AMENDMENTS; TERMINATION; EXPIRATION. This Agreement may
not be modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto. This Agreement
may be terminated by the Parent and the Purchaser upon written notice to the
Stockholders. This Agreement and the Stockholder's obligations hereunder shall
expire on the first to occur of (a) the Effective Time and (b) the termination
of the Merger Agreement in accordance with its terms.
Section 6.8 SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided that Purchaser may assign its rights
and obligations to any affiliate of Purchaser and provided, further, that no
Stockholder may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of the Purchaser.
Section 6.9 GOVERNING LAW. This Agreement shall be construed in
accordance with and governed by the law of the State of Delaware without given
effect to the principles of conflicts of laws thereof.
Section 6.10 COUNTERPARTS. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instruments.
Section 6.11 PARENT GUARANTY. Parent hereby unconditionally
guarantees the Purchaser's obligations under this Agreement and agrees to be
liable for any breach of this Agreement by the Purchaser or any permitted
assignee of the Purchaser.
Section 6.12 HEADINGS. The headings and captions used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
-6-
7
Section 6.13 OBLIGATIONS SEPARATE. The obligations of the
Stockholders hereunder are several and not joint.
Section 6.14 DEFINED TERMS. Capitalized terms used in this Agreement
and not otherwise defined shall have the meaning given to such terms in the
Merger Agreement.
Section 6.15 BENEFICIALLY OWNED SHARES. To the extent that any
Stockholder is the beneficial owner, but not the record owner, of any Shares
subject to this Agreement, such Stockholder shall take any and all action
necessary to cause the record owner of such Shares to satisfy each of the
Stockholder's obligations hereunder with respect to such Shares.
Section 6.16 CERTAIN PAYMENTS. Each of Xxxxxx X. Xxxxxxxx and
Xxx X.X. Xxxxxx, severally and not jointly, acknowledges and agrees that, upon
his receipt of the payments listed in Section 6.13 of the Disclosure Schedule as
being payable to him, neither the Company nor any Subsidiary will have any
further obligation to such Stockholder other than (a) pursuant to Company
Options held by such Stockholder as set forth in Section 4.3 of the Disclosure
Schedule or (b) as otherwise expressly provided for or disclosed in the Merger
Agreement or the Disclosure Schedule.
[Remainder of page intentionally left blank.]
-7-
8
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
PARENT:
EG&G, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and
Chief Operating Officer
Address: 00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
copy to: Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
PURCHASER:
LIGHTHOUSE WESTON CORP.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
Address: 00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
STOCKHOLDERS:
/s/ Xxxxxx Xxxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxx Xxxxxx
---------------------------------------
Ian X.X. Xxxxxx
/s/ Xxxxxxx X. Xxxxx
---------------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxxxx
-8-
9
SCHEDULE A
Stockholder Name and Address Number of Shares
---------------------------- ----------------
Xxxxxx X. Xxxxxxxx 647,807
00 Xxx Xxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Ian X.X. Xxxxxx 100,000
00 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Xxxxxxx X. Xxxxx 3,750
0000 Xxxxxxx Xxxxx Xxxxxx
Xx Xxxx, XX 00000
Xxxxxx X. Xxxxxxxxx 392,127*
0000 Xxxx Xxxxxx
Xxxxxxxxx 0X
Xxx Xxxx, Xxx Xxxx 00000
----------
* Includes Shares held by Xx. Xxxxxxxxx in a representative capacity, which
Xx. Xxxxxxxxx represents is no more than 150,000 Shares (which Shares are
not subject to this Agreement).
-9-
