Exhibit 10.1
(reGISTERED DIRECT transactions)
WESTELL TECHNOLOGIES, INC. SHARE PURCHASE AGREEMENT
This SHARE PURCHASE AGREEMENT (this "Agreement"), is made and entered
into as of May 7, 2001, by and among Westell Technologies, Inc., a Delaware
corporation (the "Company"), and the State Of Wisconsin Investment Board (the
"Purchaser").
1. AUTHORIZATION OF SALE OF THE SHARES
Subject to the terms and conditions of this Agreement, the Company has
authorized the sale of up to 1,657,459 shares (the "Shares") of Class A common
stock, par value $0.01 per share (the "Common Stock"), of the Company.
2. AGREEMENT TO SELL AND PURCHASE THE SHARES
2.1 Purchase and Sale
Subject to the terms and conditions of this Agreement, each Purchaser
severally agrees to purchase, and the Company agrees to sell and issue to each
Purchaser, at the Closing (as defined below) that number of Shares set forth
opposite such Purchaser's name on Schedule A attached hereto.
2.2 Purchase Price
The purchase price of each Share shall be $1.81 (the "Per Share
Price"). The Company shall not, during the period beginning on the date of this
Agreement and ending ninety (90) days after the Closing Date (as defined below),
without adjusting the price per Share hereunder accordingly, sell (i) Shares at
a price per Share of the Per Share Price, or (ii) options, warrants or any other
securities that can be converted into, or otherwise exchanged for, shares of the
Company's common stock at a conversion, exchange or exercise price per Share of
less than the Per Share Price; provided, however, the Company may issue (i)
options to purchase Common Stock pursuant to the company's 1995 Stock Incentive
Plan, (ii) Common Stock pursuant to its Employee Stock Purchase Plan, and (iii)
Common Stock pursuant to the exercise of warrants outstanding on the date
hereof. In the event the Company shall, during the period beginning on the date
of this Agreement and ending ninety (90) days after the Closing Date, sell any
shares of the Company's common stock at, or any instruments that can be
converted into or otherwise exchanged for the Company's common stock, excluding
any issuances described in clauses (i) through (iii) of the preceding sentence
(the "Subsequent Sale") exercisable at, a price per Share (the "Subsequent
Purchase Price") of less than the Per Share Price, the Company shall, within
ten (10) business days of the Subsequent Sale, pay to the Purchaser, in cash, an
amount equal to the number of Shares times the difference between the Per Share
Price and the Subsequent Purchase Price.
3. DELIVERY OF THE SHARES AT THE CLOSING
(a) The completion of the purchase and sale of the Shares (the
"Closing") shall occur at the offices of , counsel to the Company, at 000, Xxxx
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 at 9:00 a.m. local time on May 8, 2001,
or such other time and date as may be agreed by the parties, (the "Closing
Date").
(b) At the Closing, the Company shall authorize its transfer agent (the
"Transfer Agent") to issue to each Purchaser one or more stock certificates
registered in the name of such Purchaser, or in such nominee name(s) as
designated by such Purchaser in writing, representing the number of Shares set
forth in Section 2 above. The Company will deliver one certificate representing
1,325,967 Shares and one certificate representing 331,492 Shares (the
"Certificates") against delivery of payment for the Shares by the Purchasers.
Prior to the Purchasers' delivery of payment for the Shares, the Company will
deliver via facsimile a copy of the Certificates to be delivered upon Closing to
the office of the Purchasers (at the fax number indicated on the signature pages
attached hereto).
(c) The Company's obligation to complete the purchase and sale of the
Shares shall be subject to the following conditions, any one or more of which
may be waived by the Company:
(i) receipt by the Company of same-day funds in the full amount of
the purchase price for the Shares being purchased under this Agreement; and
(ii) the accuracy in all material respects of the representations
and warranties made by the Purchasers and the fulfillment in all material
respects of those undertakings of the Purchasers to be fulfilled before the
Closing.
(d) The Purchasers' obligations to accept delivery of such stock
certificates and to pay for the Shares evidenced by the certificates shall be
subject to the following conditions, any one or more of which may be waived by a
Purchaser with respect to such Purchaser's obligation:
(i) the representations and warranties made by the Company in this
Agreement shall be accurate in all material respects and the undertakings of the
Company shall have been fulfilled in all material respects on or before the
Closing;
(ii) the Company shall have delivered to the Purchasers a
certificate executed by the chairman of the board or president and the chief
financial or accounting officer of the Company, dated the Closing Date, in form
and substance reasonably satisfactory to the Purchasers, to the effect that the
representations and warranties of the Company set forth in Section 4 hereof are
true and correct in all material respects as of the date of this Agreement and
as of the Closing Date, and that the Company has complied with all the
agreements and satisfied all the conditions in this Agreement on its part to be
performed or satisfied on or before the Closing Date; and
(iii) the Company shall have delivered to Purchasers a legal
opinion in substantially the form attached hereto as Exhibit A.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchasers as follows
(which representations and warranties shall be deemed to apply, where
appropriate, to each subsidiary of the Company):
4.1 Organization and Qualification
The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware. The
Company has the corporate power and authority to own, lease and operate its
properties and to conduct its business as currently conducted and to enter into
and perform its obligations under this Agreement. The Company is duly qualified
as a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify would not, singly or in the aggregate, have a material
adverse effect on the condition, financial or otherwise, and the earnings,
assets, business affairs or business prospects of the Company, taken as a whole
("Material Adverse Effect").
4.2 Capitalization
(a) The authorized capital stock of the Company consists of 85,000,000
shares of Common Stock, 25,000,000 shares of Class B Common Stock and 1,000,000
shares of Preferred Stock.
(b) As of the date hereof, 2001, the issued and outstanding capital
stock of the Company consists of 42,472,787 shares of Common Stock and
19,124,869 shares of Class B Common Stock. The shares of issued and outstanding
capital stock of the Company have been duly authorized and validly issued, are
fully paid and nonassessable, have not been issued in violation of or are not
otherwise subject to any preemptive or other similar rights, and will not
constitute "restricted securities" within the meaning of Rule 144 (a)(3)
promulgated under the Securities Act of 1933, as amended (the "Securities Act").
(c) The Company has reserved 8,103,723 shares of Common Stock for
issuance upon the exercise of stock options granted or available for future
grant under the Company's 1995 Stock Incentive Plan and Employee Stock Purchase
Plan.
(d) The Company has reserved 909,000 shares of Common Stock for
issuance upon the exercise of outstanding warrants to purchase Common Stock.
With the exception of the foregoing, there are no outstanding
subscriptions, options, warrants, convertible or exchangeable securities or
other rights granted to or by the Company to purchase shares of Common Stock or
other securities of the Company and there are no commitments, plans or
arrangements to issue any shares of Common Stock or any security convertible
into or exchangeable for Common Stock.
4.3 Issuance, Sale and Delivery of the Shares
(a) The Shares have been duly authorized for issuance and sale to the
Purchasers pursuant to this Agreement and, when issued and delivered by the
Company pursuant to this Agreement against payment of the consideration set
forth in this Agreement, will be validly issued and fully paid and nonassessable
and free and clear of all pledges, liens and encumbrances. The certificates
evidencing the Shares are in due and proper form under Delaware law.
(b) The issuance of the Shares is not subject to preemptive or other
similar rights. No further approval or authority of the shareholders or the
Board of Directors of the Company will be required for the issuance and sale of
the Shares to be sold by the Company as contemplated in this Agreement.
4.4 Financial Statements
The financial statements included (as exhibits or otherwise) in the
Disclosure Documents (as defined below) present fairly the financial position of
the Company as of the dates indicated and the results of their operations for
the periods specified, subject in the case of unaudited statements, to normal
year-end audit adjustments not material to the Company's financial position as a
whole. Except as otherwise stated in such Disclosure Documents, such financial
statements have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis, and any supporting schedules included
with the financial statements present fairly the information stated in the
financial statements, except (i) as may be otherwise indicated in such financial
statements or notes thereto or (ii) in the case of unaudited interim statements,
to the extent they do not include footnotes or are condensed or summary
statements..
4.5 No Material Change
Since December 31, 2000, and except as set forth in the Disclosure
Documents,
(a) there has been no change that has a Material Adverse Effect or any
development involving a prospective Material Adverse Effect, excluding political
events and changes in economic conditions generally applicable to business
enterprises in the same business as the Company;
(b) there have been no transactions entered into by the Company other
than those in the ordinary course of business, which are material with respect
to the Company; and
(c) there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
The Company has no material contingent obligations.
4.6 Environmental
Except as would not have a Material Adverse Effect,
(a) to the best of the Company's knowledge, the Company is in
compliance with all applicable Environmental Laws (as defined below);
(b) to the best of the Company's knowledge, the Company has all
permits, authorizations and approvals required under any applicable
Environmental Laws and is in compliance with the requirements of such permits
authorizations and approvals;
(c) there are no pending or, to the best of the knowledge of the
Company, threatened Environmental Claims (as defined below) against the Company.
For purposes of this Agreement, the following terms shall have the
following meanings: "Environmental Law" means any United States (or other
applicable jurisdiction's) Federal, state, local or municipal statute, law,
rule, regulation, ordinance, code or policy and any published judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment, relating to the environment, health, safety
or any chemical, material or substance, exposure to which is prohibited, limited
or regulated by any governmental authority. "Environmental Claims" means any and
all administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation, or proceedings
relating in any way to any Environmental Law.
4.7 No Defaults
The Company is not in violation of its certificate of incorporation or
bylaws or in material default in the performance or observance of any material
contract that is an exhibit to the Disclosure Documents except as would not have
a Material Adverse Effect or as set forth in the Disclosure Documents.
4.8 Labor Matters
No labor dispute with any group of employees of the Company exists or,
to the best knowledge of the Company, is imminent that would result in a
Material Adverse Effect.
4.9 No Actions
Except as set forth in the Disclosure Documents, there is no action,
suit or proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company which, singly or in the aggregate,
might result in a Material Adverse Effect or which might materially and
adversely affect the consummation of this Agreement, nor, to the knowledge of
the Company, is there any reasonable basis therefor. Except as set forth in the
Disclosure Documents, the Company is not in default with respect to any
judgment, order or decree of any court or governmental agency or instrumentality
which, singly or in the aggregate, would have a Material Adverse Effect.
4.10 Intellectual Property
(a) To the best of the Company's knowledge, the Company has the patent
and intellectual property rights necessary to conduct its business as it is now
being conducted. No
claim has been made against the Company regarding its alleged infringement of
the intellectual property or patent rights of others that would be expected to
have a Material Adverse Effect.
(b) No action, suit, arbitration, or legal, administrative or other
proceeding, or investigation is pending, or, to the knowledge of the Company,
threatened, which involves any Proprietary Rights, nor, to the knowledge of the
Company, is there any reasonable basis therefor.
(c) The Company is not subject to any judgment, order, writ, injunction
or decree of any court or any Federal, state, local, foreign or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, or any arbitrator, and has not entered into or is not a
party to any contract which restricts or impairs the use of any such Proprietary
Rights in a manner which would have a material adverse effect on the use of any
of the Proprietary Rights.
(d) The Company has not received written notice of any pending conflict
with or infringement upon such third-party proprietary rights.
(e) The Company has not entered into any consent, indemnification,
forbearance to xxx or settlement agreement with respect to Proprietary Rights
other than in the ordinary course of business and other that such that would
have a Material Adverse Effect. No claims have been asserted by any person with
respect to the validity of the Company's ownership or right to use the
Proprietary Rights and, to the knowledge of the Company, there is no reasonable
basis for any such claim to be successful.
(f) The Company has complied, in all material respects, with its
obligations relating to the protection of the Proprietary Rights which are
material to the business of the Company used pursuant to licenses.
(g) To the knowledge of the Company, no person is infringing on or
violating the Proprietary Rights.
4.11 Permits
The Company possesses and is operating in compliance with all material
licenses, certificates, consents, authorities, approvals and permits from all
state, federal, foreign and other regulatory agencies or bodies necessary to
conduct the businesses now operated by it, and the Company has not received any
notice of proceedings relating to the revocation or modification of any such
permit or any circumstance which would lead it to believe that such proceedings
are reasonably likely which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material Adverse Effect.
4.12 Due Execution, Delivery and Performance
(a) This Agreement has been duly executed and delivered by the Company
and constitutes a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights
generally and by general equitable principle (regardless or whether such
enforceability is considered in a proceeding in equity or at law).
(b) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated in this Agreement and the
fulfillment of the terms of this Agreement, including the sale, issuance and
delivery of the Shares, (i) have been duly authorized by all necessary corporate
action on the part of the Company, its directors and stockholders; (ii) will not
conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to, any contract, indenture, mortgage, loan
agreement, deed, trust, note, lease, sublease, voting agreement, voting trust or
other instrument or agreement to which the Company is a party or by which it may
be bound, or to which any of the property or assets of the Company is subject;
(iii) will not trigger anti-dilution rights or other rights to acquire
additional equity securities of the Company; and (iv) will not result in any
violation of the provisions of the articles of incorporation or bylaws of the
Company or any applicable statute, law, rule, regulation, ordinance, decision,
directive or order, except, with respect to clause (ii), to the extent that it
would not have a Material Adverse Effect.
4.13 Properties
The Company has good title to its properties, free and clear of all
security interests, mortgages, pledges, liens, charges, encumbrances and claims
of record, except those that are described in the Disclosure Documents or would
not have a Material Adverse Effect. The properties of the Company are, in the
aggregate, in good repair (reasonable wear and tear excepted), and suitable for
their respective uses, except as reflected in the Disclosure Documents or to the
extent that it would not result in a Material Adverse Effect. Any real property
held under lease by the Company is held under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere with the
conduct of the business of the Company. The Company owns or leases all such
properties as are necessary to its business or operations as now conducted,
except to the extent that it would not have a Material Adverse Effect.
4.14 Compliance
The Company has conducted and is conducting its business in compliance
with all applicable Federal, state, local and foreign statutes, laws, rules,
regulations, ordinances, codes, decisions, decrees, directives and orders,
except where the failure to do so would not, singly or in the aggregate Material
Adverse Effect.
4.15 Contributions
To the Company's knowledge, neither the Company nor any employee or
agent of the Company has made any payment of funds of the Company or received or
retained any funds in violation of any law, rule or regulation.
4.16 Use of Proceeds; Investment Company
The Company intends to use the proceeds from the sale of the Shares for
to repay bank debt, for working capital and other general corporate purposes.
The Company is not now, and after the sale of the Shares under this Agreement
and under all other agreements and the application of the net proceeds from the
sale of the Shares described in the proceeding sentence will not be, an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
4.17 Prior Offerings
To the best of the Company's knowledge, all offers and sales of capital
stock of the Company before the date of this Agreement were at all relevant
times duly registered or exempt from the registration requirements of the
Securities Act and were duly registered or subject to an available exemption
from the registration requirements of the applicable state securities or Blue
Sky laws.
4.18 Taxes
The Company has filed all material tax returns required to be filed,
which returns are true and correct in all material respects, and the Company is
not in material default in the payment of any taxes, including penalties and
interest, assessments, fees and other charges, shown thereon due or otherwise
assessed, other than those being contested in good faith and for which adequate
reserves have been provided or those currently payable without interest which
were payable pursuant to said returns or any assessments with respect thereto.
4.19 Other Governmental Proceedings
Except as set forth in the Disclosure Documents, to the Company's
knowledge, there are no rulemaking or similar proceedings before any Federal,
state, local or foreign government bodies that involve or affect the Company,
which, if the subject of an action unfavorable to the Company, could involve a
prospective Material Adverse Effect.
4.20 Transfer Taxes
On the Closing Date, all stock transfer or other taxes (other than
income taxes) that are required to be paid in connection with the sale and
transfer of the Shares to be sold to the Purchasers under this Agreement will
be, or will have been, fully paid or provided for by the Company and all
material laws imposing such taxes will be or will have been fully complied with
in all material respects.
4.21 Insurance
The Company maintains insurance of the type and in the amount that the
Company reasonably believes is adequate for its business, including, but not
limited to, insurance covering all real and personal property owned or leased by
the Company against theft, damage, destruction, acts of vandalism and all other
risks customarily insured against by similarly situated companies, all of which
insurance is in full force and effect.
4.22 Governmental/ Regulatory Consents
Except for the filing of the supplemental prospectus describing this
transaction that is required to be filed with the SEC under Rule 424(b)(2) of
the regulations of the Securities Act of 1933 (the "Supplemental Prospectus"),
all registration authorization, approval, qualification or consent with or
required by any court or governmental/regulatory authority or agency that is
necessary in connection with the execution and delivery of this Agreement or the
offering, issuance or sale of the Shares under this Agreement have been
obtained.
4.23 Securities and Exchange Commission Filings
The Company has timely filed with the Securities and Exchange
Commission (the "Commission") all documents required to be filed by the Company
under the Securities Exchange Act of 1934, as amended (the "Exchange Act.")
4.24 Disclosure Documents
The Company represents and warrants that the information contained in
the following documents (the "Disclosure Documents"), which have been provided
to Purchaser, as of their respective final dates, do not contain any untrue
statement of a material fact or omit to state a material fact required to the
stated therein or necessary to make the statements therein not misleading in
light of the circumstances in which they were made, as of their final dates:
(a) the Company's Registration Statement on Form S-3 (Registration No.
333-57810 attached hereto as Exhibit C) (including all exhibits thereto and all
information and documents incorporated by reference therein, the "Registration
Statement"), which includes the registration of the original issuance of the
Shares of Common Stock purchased by the Purchasers pursuant to this Agreement,
the Supplemental Prospectus and the Company's Prospectus included in the
Registration Statement;
(b) the Company's Annual Report on Form 10-K for the fiscal year ended
March 31, 2000;
(c) the Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended June 30, 2000, September 30, 2000 and December 31, 2000, as
thereafter amended;
(d) the Company's Proxy Statement for its 2000 Annual Meeting of
Shareholders; and
(e) all other documents, if any, filed by the Company with the
Commission since December 31, 2000 pursuant to the reporting requirements of the
Securities Exchange Act.
4.25 Registration Statement
The Registration Statement has become effective under the Securities
Act, and no stop order proceedings with respect thereto have been instituted or
are pending or threatened under the Securities Act and nothing has come to our
attention to lead us to believe that such proceedings are contemplated.
4.26 Contracts
The contracts described in the Disclosure Documents or incorporated by
reference therein are in full force and effect on the date hereof, except for
contracts the termination or expiration of which would not, singly or in the
aggregate, have a Material Adverse Effect. Except as set forth in the Disclosure
Documents, neither the Company nor, to the knowledge of the Company, any other
party is in material breach of or default under any such contracts that will
have a Material Adverse Effect.
4.27 Listing of Shares
The Company agrees to promptly secure the listing of the Shares upon
each national securities exchange or automated quotation system upon which
shares of Common Stock are then listed and, so long as any Purchaser owns any of
the Shares, shall maintain such listing of all Shares. The Company has taken no
action designed to delist, or which is likely to have the effect of delisting,
the Common Stock from any of the national securities exchange or automated
quotation system upon which the shares of Common Stock are then listed.
4.28 No Manipulation of Stock
The Company has not taken and will not, in violation of applicable law,
take any action outside the ordinary course of business designed to or that
might reasonably be expected to cause or result in unlawful manipulation of the
price of the Common Stock to facilitate the sale or resale of the Shares.
5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser represents, warrants and covenants to the Company as
follows:
5.1 This Agreement has been duly executed and delivered by the
Purchaser and constitutes a valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms.
5.2 The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated in this Agreement and the
fulfillment of the terms of this Agreement have been duly authorized by all
necessary corporate action on the part of the Company, its directors and
stockholders and will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Purchaser pursuant to, any
contract, indenture, mortgage, loan agreement, deed, trust, note, lease,
sublease, voting agreement, voting trust or other instrument or agreement to
which the Purchaser is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Purchaser is subject, nor will such
execution, delivery and performance result in any violation of the provisions of
the charter or bylaws of the Purchaser or any applicable statute, law, rule,
regulation, ordinance, decision, directive or order.
6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement,
all covenants, agreements, representations and warranties made by the Company
and the Purchasers in this Agreement and in the certificates for the Shares
delivered pursuant to this Agreement shall
survive the execution of this Agreement, the delivery to the Purchasers of the
Shares being purchased and the payment therefor.
7. INDEMNIFICATION
7.1 Indemnification
7.1.1 Indemnification by the Company
The Company agrees to indemnify and hold harmless each Purchaser, each
person, if any, who controls such Purchaser within the meaning of Section 15 of
the Securities Act and each officer, director, employee and agent of such
Purchaser and of any such controlling person against any and all liabilities,
claims, damages or expenses whatsoever, as incurred arising out of or resulting
from any breach or alleged breach or other violation of any representation,
warranty, covenant or undertaking by the Company contained in this Agreement,
and the Company will reimburse the Purchaser for its reasonable legal and other
expenses (including the reasonable cost of any investigation and preparation,
and including the reasonable fees and expenses of counsel) incurred in
connection therewith.
7.1.2 Indemnification by the Purchaser
Each Purchaser agrees severally but not jointly to indemnify and hold
harmless the Company, each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act and each officer, director, employee
and agent of the Company and of any such controlling person against any and all
losses, liabilities, claims, damages or expenses whatsoever, as incurred arising
out of or resulting from any breach or alleged breach or other violation or
alleged violation of any representation, warranty, covenant or undertaking by
the Purchaser contained in this Agreement, and the Purchaser will reimburse the
Company for its reasonable legal and other expenses (including the reasonable
cost of any investigation and preparation, and including the reasonable fees and
expenses of counsel) incurred in connection therewith.
7.1.3 Indemnification Procedure
(a) Promptly after receipt by an indemnified party under this Section
7.1.3 of notice of the threat or commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party under this Section 7.1.3, promptly notify the indemnifying party in
writing of the claim; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party for
contribution or otherwise under the indemnity agreement contained in this
Section 7.1.3 or to the extent it is not prejudiced as a result of such failure.
(b) In case any such action is brought against any indemnified party
and such indemnified party seeks or intends to seek indemnity from an
indemnifying party, the indemnifying party will be entitled to participate in,
and, to the extent that it may wish, jointly with all other indemnifying parties
similarly notified, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party; provided, however, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified
party shall have reasonably concluded that there may be a conflict between the
positions of the indemnifying party and the indemnified party in conducting the
defense of any such action or that there may be legal defenses available to it
or other indemnified parties that are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assume such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 7.3 for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless:
(i) the indemnified party shall have employed such counsel in
connection with the assumption of legal defenses in accordance with the proviso
to the preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate counsel,
approved by such indemnifying party representing all of the indemnified parties
who are parties to such action) or
(ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of action, in each
of which cases the reasonable fees and expenses of counsel shall be at the
expense of the indemnifying party. Notwithstanding the provisions of this
Section 7.3, neither party shall be liable for any indemnification obligation
under this Agreement until the aggregate amount in indemnifiable claims against
such party exceeds 1% of the amount of gross proceeds received by the Purchaser
for the sale of the shares.
7.2 Stock Option Matters and Prohibition on Toxics
The Company shall, within thirty (30) days of the Closing Date, adopt
such amendments to, with respect to (i) and (ii) below, the Company's stock
option plans and By-laws, and, with respect to (iii) and (iv) below, the
Company's By-laws (together, the "Stock Option Plan and By-law Amendments") to
provide that, unless approved by the holders of a majority of the shares present
and entitled to vote at a duly convened meeting of shareholders, the company
shall not:
(i) grant any stock options with an exercise price that is less
than 100% of the fair market value of the underlying stock on the date of grant;
(ii) reduce the exercise price of any stock option granted under
any existing or future stock option plan;
(iii) sell or issue any security of the Company convertible,
exercisable or exchangeable into shares of Common Stock, having a conversion,
exercise or exchange price per share which is subject to downward adjustment
based on the market price of the Common Stock at the time of conversion,
exercise or exchange of such security into Common Stock (except for appropriate
adjustments made to give effect to any stock splits or stock dividends); or
(iv) enter into (a) any equity line or similar agreement or
arrangement; or (b) any agreement to sell Common Stock (or any security
convertible, exercisable or exchangeable
into shares of Common Stock ("Common Stock Equivalent")) at a per share price
(or, with respect to a Common Stock Equivalent, at a conversion, exercise or
exchange price, as the case may be ("Equivalent Price")) that is fixed after the
execution date of the agreement, whether or not based on any predetermined
price-setting formula or calculation method. Notwithstanding the foregoing,
however, a price protection clause shall be permitted in an agreement for sale
of Common Stock or Common Stock Equivalent, if such clause provides for an
adjustment to the price per share of Common Stock or, with respect to a Common
Stock Equivalent, to the Equivalent Price (provided that such price or
Equivalent Price is fixed on or before the execution date of the agreement)(the
"Fixed Price") in the event that the Company, during the period beginning on the
date of the agreement and ending no later than 90 days after the closing date of
the transaction, sells shares of Common Stock or Common Stock Equivalent to
another investor at a price or Equivalent Price, as the case may be, below the
Fixed Price.
The Stock Option Plan and By-law Amendments may not be further amended
or repealed without the affirmative vote of the holders of a majority of the
shares present and entitled to vote at a duly convened meeting of shareholders.
Upon the adoption of the Stock Option Plan and By-law Amendments, the Company
shall promptly furnish a copy of such amendments to the Purchasers. The Company
agrees that, prior to the adoption of the Stock Option Plan and By-law
Amendments by all necessary corporate action of the Company as described above,
the Company shall not conduct any of the actions specified in (i), (ii), (iii)
or (iv) above of this Section 7.2.
8. LEGAL FEES AND OTHER TRANSACTION EXPENSES
At the Closing, the Company agrees to pay a flat fee of $5,000 to the
State of Wisconsin Investment Board for their legal and other transaction
expenses (whether internal or external) arising in connection with the
transactions contemplated by this Agreement.
9. NOTICES
All notices, requests, consents and other communications under this
Agreement shall be in writing, shall be mailed by first-class registered or
certified airmail, confirmed facsimile or nationally recognized overnight
express courier postage prepaid, and shall be delivered as addressed as follows:
(a) if to the Company, to:
Chief Executive Officer
Westell Technologies, Inc.
000 X. Xxxxxxx Xxxxx
Xxxxxx, XX 00000
With a copy to:
Xxxx Xxxxx
XxXxxxxxx, Will & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
or to such other person at such other place as the Company shall designate to
the Purchaser in writing; and
(b) if to a Purchaser, at its address as set forth on the signature
page to this Agreement, or at such other address or addresses as may have been
furnished to the Company in writing.
Such notice shall be deemed effectively given upon confirmation of
receipt by facsimile, one business day after deposit with such overnight courier
or three days after deposit of such registered or certified airmail with the
U.S. Postal Service, as applicable.
10. BROKER'S FEE
Each of the parties to this Agreement hereby represents that, on the
basis of any actions and agreements by it, there are no brokers or finders
entitled to compensation in connection with the sale of the Shares to the
Purchaser. The Company shall indemnify and hold harmless the Purchaser from and
against all fees, commissions or other payments owing by the company to any
person or firm acting on behalf of the Company hereunder.
11. MODIFICATION; AMENDMENT
This Agreement may not be modified or amended except pursuant to an
instrument in writing signed by the Company and the Purchaser.
12. TERMINATION
This Agreement may be terminated:
(a) By the Company if the conditions set forth in Sections 3(c) are not
be satisfied or have not been waived on or before thirty (30) days from the date
of this Agreement.
(b) By the Purchaser if the conditions set forth in Sections 3(d) are
not be satisfied or have not been waived on or before thirty (30) days from the
date of this Agreement.
13. HEADINGS
The headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be part of
this Agreement.
14. SEVERABILITY
If any provision contained in this Agreement should be held to be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained in this Agreement shall not
in any way be affected or impaired thereby.
15. GOVERNING LAW; JURISDICTION
This Agreement shall be governed by and construed in accordance with
the laws of the state of Delaware and the federal law of the United States of
America.
16. NO CONFLICTS OF INTEREST.
The Company represents, warrants, and covenants that, to its knowledge,
no trustee or employee of the State of Wisconsin Investment Board identified on
the attached list, either directly or indirectly will, in connection with the
investment made pursuant to this Agreement, receive (i) a personal interest in
the Entity or the Entity's property or securities or (ii) anything of
substantial economic value for his or her private benefit from the Entity or
anyone acting on its behalf. As to ownership of an interest in the Entity's
publicly traded securities, "knowledge" hereunder is based on the actual
knowledge of the undersigned.
17. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall constitute an original, but all of which, when taken together, shall
constitute but one instrument, and shall become effective when one or more
counterparts have been signed by each party to this Agreement and delivered to
the other parties.
IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be executed by their duly authorized representatives as of the day
and year first above written.
WESTELL TECHNOLOGIES, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx, Xx.
-----------------------------------
Name: Xxxxxxxx X. Xxxxxxx, Xx.
---------------------------------
Its: Vice President and Secretary
----------------------------------
STATE OF WISCONSIN INVESTMENT BOARD
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
---------------------------------
Title: Investment Director
--------------------------------
Address:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
