CONFORMED COPY
COMPANY SHAREHOLDER AGREEMENT dated
as of November 11, 1999, among TRIPOINT GLOBAL
COMMUNICATIONS INC., a Delaware corporation
("PARENT"), SIGNAL ACQUISITION CORPORATION, a Texas
corporation ("SUB"), and the individuals and other
parties listed in Schedule A hereto (each, a
"SHAREHOLDER" and, collectively, the "SHAREHOLDERS").
WHEREAS Parent, Sub, and Signal Acquisition Corporation, a
Texas corporation (the "COMPANY"), propose to enter into an Agreement and Plan
of Merger dated as of the date hereof (as the same may be amended or
supplemented, the "MERGER AGREEMENT"; capitalized terms used but not defined
herein shall have the meanings set forth in the Merger Agreement);
WHEREAS each Shareholder is the record and beneficial owner
(as defined in Rule 13d-3 under the Securities and Exchange Act of 1934, as
amended (the "EXCHANGE ACT") of the number of shares of Company Common Stock set
forth opposite such Shareholder's name in Schedule A hereto (such shares of
Company Common Stock, together with any other shares of capital stock of the
Company acquired by such Shareholder after the date hereof and during the term
of this Agreement or that such Shareholder has or will have the right to acquire
during the term of this Agreement upon the exercise of Company Stock Options,
being collectively referred to herein as the "SUBJECT SHARES" of such
Shareholder); and
WHEREAS, as a condition to its willingness to enter into the
Merger Agreement, Parent has requested that each Shareholder enter into this
Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES OF EACH SHAREHOLDER.
Each Shareholder hereby, severally and not jointly, represents and warrants to
Parent as of the date hereof in respect of himself, herself or itself as
follows:
(a) AUTHORITY; EXECUTION AND DELIVERY;
ENFORCEABILITY. The Shareholder has all requisite power and authority
to execute and deliver this
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Agreement and to consummate the transactions contemplated hereby. The
execution and delivery by the Shareholder of this Agreement and
consummation of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of the Shareholder. The
Shareholder has duly executed and delivered this Agreement, and this
Agreement constitutes the legal, valid and binding obligation of the
Shareholder, enforceable against the Shareholder in accordance with its
terms, except that (i) such enforcement may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws, now
or hereafter in effect, affecting creditor rights generally and (ii)
the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceedings therefor may be
brought. The execution and delivery by the Shareholder of this
Agreement do not, and the consummation of the transactions contemplated
hereby and compliance with the terms hereof will not, conflict with, or
result in any violation of, or default (with or without notice or lapse
of time, or both) under, any provision of any Contract to which the
Shareholder is a party or by which any properties or assets of the
Shareholder are bound or, subject to the filings and other matters
referred to in the next sentence, any provision of any Judgment or Law
applicable to the Shareholder or the properties or assets of the
Shareholder. No Consent of, or registration, declaration or filing
with, any Governmental Entity is required to be obtained or made by or
with respect to the Shareholder in connection with the execution,
delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby, other than such reports under
Sections 13(d) and 16 of the Exchange Act as may be required in
connection with this Agreement and the transactions contemplated
hereby, compliance with and filings under the HSR Act, and the filing
of a joint notification pursuant to the Exon-Xxxxxx Act. The
Shareholder has complied with any applicable community property law and
no spousal signature or consent is required from any party other than
the signatories hereto with respect to the Shareholder in connection
with entering into this Agreement or performing the obligations of the
Shareholder hereunder. The Shareholder shall execute a power of
attorney in favor of at least two other Shareholders
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with respect to the matters covered by Sections 3(a) and 3(b) in the
event of incapacity of the Shareholder.
(b) THE SUBJECT SHARES. The Shareholder is the record
and beneficial owner of, or is the trustee of a trust that is the
record holder of, and whose beneficiaries are the beneficial owners of,
and has good and marketable title to, the Subject Shares set forth
opposite such Shareholder's name in Schedule A attached hereto, free
and clear of any Liens other than as set forth in Schedule A, which
Liens will be released upon payment for such Subject Shares pursuant to
the Offer or Section 4. The Shareholder does not own, of record or
beneficially, any shares of capital stock of the Company other than the
Subject Shares set forth opposite such Shareholder's name in Schedule A
attached hereto. The Shareholder has the sole right to vote such
Subject Shares, and none of such Subject Shares is subject to any
voting trust or other agreement, arrangement or restriction with
respect to the voting of such Subject Shares, except as contemplated by
this Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF PARENT. Parent
hereby represents and warrants to each Shareholder as follows: Parent has all
requisite corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery by Parent of this Agreement and consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of Parent. Parent has duly executed and delivered this Agreement, and this
Agreement constitutes the legal, valid and binding obligation of Parent,
enforceable against Parent in accordance with its terms, except that (i) such
enforcement may be subject to applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws, now or hereafter in effect, affecting creditor
rights generally and (ii) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceedings therefor may be brought.
The execution and delivery by Parent of this Agreement do not, and the
consummation of the transactions contemplated hereby and compliance with the
terms hereof will not, conflict with, or result in any violation of or default
(with or without notice or lapse of time, or both) under, any provision of (i)
the charter or organizational documents of Parent or
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any of its subsidiaries, (ii) any material Contract to which Parent or any of
its subsidiaries is a party or by which any of their respective properties or
assets is bound or (iii) subject to the filings and other matters referred to in
Section 4.04(b) of the Merger Agreement, any Judgment or Law applicable to
Parent or any of its subsidiaries or their respective properties or assets,
other than, in the case of clause (iii) above, any such items that, individually
and in the aggregate, have not had and would not reasonably be expected to have
a Parent Material Adverse Effect. No Consent of, or registration, declaration or
filing with, any Governmental Entity is required to be obtained or made by or
with respect to Parent in connection with the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby, other than such reports under Sections 13(d) and 16 of the
Exchange Act as may be required in connection with this Agreement and the
transactions contemplated hereby, compliance with and filings under the HSR Act,
and the filing of a joint notification pursuant to the Exon-Xxxxxx Act.
SECTION 3. COVENANTS OF EACH SHAREHOLDER. Each Shareholder,
severally and not jointly, covenants and agrees as follows:
(a)(1) At any meeting of the shareholders of the Company
called to seek the Company Shareholder Approval or in any other
circumstances upon which a vote, consent or other approval (including
by written consent) with respect to the Merger Agreement, this
Agreement, the Offer, the Merger or any other Transaction is sought,
the Shareholder shall, including by executing a written consent
solicitation if requested by Parent, vote (or cause to be voted) the
Subject Shares of the Shareholder in favor of granting the Company
Shareholder Approval.
(2) IRREVOCABLE PROXY. Subject to the last sentence of this
paragraph, the Shareholder hereby irrevocably grants to, and appoints,
Parent, Xxxxxxx Xxxxx and Xxxx Xxxxxxx, or any of them, and any
individual designated in writing by any of them, and each of them
individually, as the Shareholder's proxy and attorney-in-fact (with
full power of substitution), for and in the name, place and stead of
the Shareholder, to vote the Subject Shares of the Shareholder, or
grant a consent or approval in respect of the Subject Shares of the
Shareholder prior to the Termination Date (i) in favor of
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granting the Company Shareholder Approval or the approval of this
Agreement, the Offer, the Merger or any other Transaction and (ii)
against (A) any merger agreement or merger (other than the Merger
Agreement and the Merger), consolidation, combination, sale of
substantial assets, reorganization, recapitalization, dissolution,
liquidation or winding up of or by the Company, (B) any Company
Takeover Proposal and (C) any amendment of the Company Charter or the
Company By-laws or other proposal or transaction involving the Company
or any Company Subsidiary, which amendment or other proposal or
transaction would in any manner impede, frustrate, prevent, delay or
nullify any provision of the Merger Agreement or this Agreement, the
Offer, the Merger or any other Transaction or change in any manner the
voting rights of any class of Company capital stock. The Shareholder
understands and acknowledges that Parent is entering into the Merger
Agreement in reliance upon the Shareholder's execution and delivery of
this Agreement. The Shareholder hereby affirms that the irrevocable
proxy set forth in this Section 3(a) is given in connection with the
agreement of Parent to purchase the Subject Shares of the Shareholder,
and the agreement of the Shareholder to vote the Subject Shares of the
Shareholder, pursuant to this Agreement. The Shareholder hereby further
affirms that the irrevocable proxy is coupled with an interest and may
under no circumstances be revoked, except as otherwise provided in this
Agreement. The Shareholder hereby ratifies and confirms all that such
irrevocable proxy may lawfully do or cause to be done by virtue hereof.
Such irrevocable proxy is executed and intended to be irrevocable prior
to the Termination Date in accordance with the provisions of Article
2.29.C of the TBCA. The irrevocable proxy granted hereunder shall
automatically terminate upon the termination of this Agreement.
(b) At any meeting of shareholders of the Company or at any
adjournment thereof or in any other circumstances upon which the
Shareholder's vote, consent or other approval is sought, the
Shareholder shall vote (or cause to be voted) the Subject Shares of the
Shareholder in the manner specified in Section 3(a)(2). The Shareholder
shall not commit or agree to take any action inconsistent with the
foregoing.
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(c)(1) The Shareholder shall tender all the Subject Shares of
the Shareholder pursuant to the Offer. Such tender shall be made
promptly, and in any event no later than the third business day
following commencement of the Offer. The Shareholder shall not withdraw
any Subject Shares tendered pursuant to the Offer prior to the
Termination Date (as defined below). The obligation of the Shareholder
to tender and not withdraw Shares is conditioned only upon lawful
commencement of the Offer and otherwise is unconditioned.
(2) Prior to the termination of this Agreement, except as
otherwise provided herein, the Shareholder shall not (A) sell,
transfer, pledge, assign or otherwise dispose of (including by gift)
(collectively, "TRANSFER"), or enter into any Contract, option or other
arrangement (including any profit sharing arrangement) with respect to
the Transfer of, any Subject Shares to any person other than pursuant
to the Offer and the Merger or (B) enter into any voting arrangement,
whether by proxy, voting agreement or otherwise, with respect to any
Subject Shares and shall not commit or agree to take any of the
foregoing actions.
(d) The Shareholder shall not, nor shall it authorize or
permit any officer, director or employee of, or any investment banker,
attorney or other adviser or representative of, the Shareholder to, (i)
directly or indirectly solicit, initiate or encourage the submission of
any Company Takeover Proposal, (ii) enter into any agreement with
respect to any Company Takeover Proposal or (iii) directly or
indirectly participate in any discussions or negotiations regarding, or
furnish to any person any information with respect to, or take any
other action to facilitate any inquiries or the making of any proposal
that constitutes, or may reasonably be expected to lead to, any Company
Takeover Proposal; PROVIDED, HOWEVER, that the Shareholder may furnish
information with respect to the Company to a person and participate in
discussions or negotiations with such person regarding a Superior
Company Proposal if at such time the Company is permitted to furnish
information and engage in discussions or negotiations with, and is
actually furnishing information to and engaging in discussions or
negotiations with, such person regarding such Superior Company Proposal
pursuant to Section 5.02(a) of the Merger Agreement. The
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Shareholder promptly shall advise Parent orally and in writing of any
Company Takeover Proposal or inquiry made to the Shareholder with
respect to or that could reasonably be expected to lead to any Company
Takeover Proposal (including any change to the terms of any such
Company Takeover Proposal or inquiry), the identity of the person
making any such Company Takeover Proposal or inquiry, and the material
terms of any such Company Takeover Proposal or inquiry.
(e) The Shareholder shall use all reasonable efforts to take,
or cause to be taken, all actions, and to do, or cause to be done, and
to assist and cooperate with the other parties in doing, all things
necessary, proper or advisable to consummate and make effective, in the
most expeditious manner practicable, the Offer, the Merger and the
other Transactions, provided that in doing so the Shareholder shall not
be required to relinquish any right or benefit that the Shareholder may
have under any written employment agreement with the Company or any
Company Subsidiary that has been filed as an exhibit to the Filed
Company SEC Documents. The Shareholder shall not issue any press
release or make any other public statement with respect to any
Transaction Agreement, the Merger or any other Transaction without the
prior consent of Parent, except as may be required by applicable Law.
SECTION 4. OPTION. (a) Each Shareholder hereby severally
grants to Parent an irrevocable option (the "OPTION") to purchase any of or all
the Subject Shares of such Shareholder that have not been validly tendered prior
to the expiration of the Offer, or that have been withdrawn prior to the
expiration of the Offer, at a purchase price per share equal to the Offer Price
in cash. The Option shall become exercisable, in whole or in part, only when the
Offer has expired and Sub has accepted shares of Company Common Stock for
purchase pursuant to the Offer. If the Option becomes exercisable, the Option
may be exercised by giving the notice referred to in Section 4(b) any time
during the period commencing with the acceptance by Sub of shares of Company
Common Stock for purchase pursuant to the Offer and ending 30 days thereafter
(the "OPTION PERIOD"); PROVIDED, HOWEVER, that if, on the expiration of the
Option Period, (i) any waiting period under the HSR Act applicable to the
purchase of shares of Company Common Stock pursuant to the Option shall not have
expired or been terminated, (ii) the period of time for any
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applicable review process by CFIUS under the Exon-Xxxxxx Act shall not have
expired or (iii) there shall be in effect any preliminary or permanent
injunction or other order issued by any Governmental Entity prohibiting the
exercise of the Option pursuant to this Agreement, then the Option Period shall
be extended until five business days after the later of the date of expiration
or termination of any applicable waiting period under the HSR Act, the
expiration of the period of time for any applicable review process under the
Exon-Xxxxxx Act, and the date of removal or lifting of any such injunction or
order.
(b) If Parent wishes to exercise the Option, it may do so by
giving written notice (the date of such notice being herein called the "NOTICE
DATE") to each Shareholder specifying that the Subject Shares are to be
purchased and specifying the place, time and date (which shall not be earlier
than one trading day, nor later than 10 trading days, from the Notice Date) for
the closing of the Purchase by Parent pursuant to such exercise.
SECTION 5. TERMINATION. Notwithstanding any other provision
contained herein, this Agreement and all rights and obligations of the parties
hereunder shall terminate upon the Termination Date, other than with respect to
the liability of any party for breach hereof prior to such termination. As used
herein, the term "TERMINATION DATE" shall mean the earlier to occur of (i) the
Effective Time and (ii) the termination of the Merger Agreement in accordance
with its terms.
SECTION 6. ADDITIONAL MATTERS. (a) Each Shareholder shall,
from time to time, execute and deliver, or cause to be executed and delivered,
such additional or further consents, documents and other instruments as Parent
may reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement.
(b) No person executing this Agreement who is or becomes
during the term hereof a director or officer of the Company makes any agreement
or understanding herein in his or her capacity as a director or officer of the
Company. Each Shareholder signs solely in such Shareholder's capacity as the
record holder and beneficial owner of, or the trustee of a trust whose
beneficiaries are the beneficial owners of, such Shareholder's Subject Shares
and nothing herein shall limit or affect any actions taken by any Shareholder in
his capacity as an officer, director or affiliate of the
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Company to the extent specifically permitted by the Merger Agreement.
SECTION 7. GENERAL PROVISIONS. (a) AMENDMENTS. This
Agreement may not be amended except by an instrument in writing signed by each
of the parties hereto.
(b) NOTICE. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally or sent by
overnight courier (providing proof of delivery) to Parent in accordance with
Section 9.02 of the Merger Agreement and to the Shareholders at their respective
addresses set forth in Schedule A hereto (or at such other address for a party
as shall be specified by like notice).
(c) INTERPRETATION. When a reference is made in this Agreement
to Sections, such reference shall be to a Section to this Agreement unless
otherwise indicated. 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. Wherever the words "INCLUDE", "INCLUDES" and "INCLUDING" are
used in this Agreement, they shall be deemed to be followed by the words
"WITHOUT LIMITATION".
(d) SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule or Law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions contemplated hereby are fulfilled to the extent
possible.
(e) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement.
This Agreement shall become effective between Parent and any Shareholder when a
counterpart has been signed by Parent and delivered to such Shareholder and a
counterpart has been executed by such Shareholder and delivered to Parent. Each
party need not sign the same counterpart.
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(f) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This
Agreement (i) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof and (ii) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
(g) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof, except to the extent the laws of Texas are mandatorily applicable
to Section 3.
(h) ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise, by Parent without the prior written
consent of each Shareholder or by any Shareholder without the prior written
consent of Parent, and any purported assignment without such consent shall be
void; PROVIDED, HOWEVER, that Parent may assign, upon notice to the Company
prior to or immediately following such assignment, its rights and obligations
hereunder to any of its corporate affiliates, but no such assignment shall
relieve Parent of its obligations hereunder if its assignee does not perform
such obligations. Subject to the preceding sentences, this Agreement will be
binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns.
(i) ENFORCEMENT. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any New York state court or any
Federal court located in the State of New York, this being in addition to any
other remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto (i) consents to submit itself to the personal jurisdiction
of any New York state court or any Federal court located in the State of New
York in the event any dispute arises out of this Agreement or any Transaction,
(ii) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court, (iii)
agrees that it will not
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bring any action relating to this Agreement or any Transaction in any court
other than a New York state court or any Federal court sitting in the State of
New York and (iv) waives any right to trial by jury with respect to any claim or
proceeding related to or arising out of this Agreement or any Transaction.
IN WITNESS WHEREOF, each party has duly executed this
Agreement, all as of the date first written above.
TRIPOINT GLOBAL COMMUNICATIONS INC.,
by /s/ Xxxx Xxxxxxx
------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Executive Officer
SIGNAL ACQUISITION CORPORATION,
by /s/ Xxxx Xxxxxxx
------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Executive Officer
/s/ Xxxxxxx X. Xxxxx
-----------------------------------
XXXXXXX X. XXXXX
/s/ A. Xxx Xxxxxx
-----------------------------------
A. XXX XXXXXX
/s/ Xxxxx X. Xxxxxx
-----------------------------------
XXXXX X. XXXXXX
/s/ Xxxx X. Xxxxxx
-----------------------------------
XXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxxxx, Xx.
-----------------------------------
XXXXXX X. XXXXXXXX, XX.
/s/ Rein Luik
-----------------------------------
REIN LUIK
/s/ J. Xxx Xxxxxxxx
-----------------------------------
J. XXX XXXXXXXX
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/s/ Xxxx X. Xxxxxx
-----------------------------------
XXXX X. XXXXXX
SCHEDULE A
NUMBER OF SHARES OF COMPANY
NUMBER OF SHARES OF COMPANY COMMON STOCK SUBJECT TO
NAME AND ADDRESS OF SHAREHOLDER COMMON STOCK OWNED COMPANY STOCK OPTIONS* HELD
------------------------------- ------------------ ---------------------------
Xxxxxxx X. Xxxxx 90,930** 21,400
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
A. Xxx Xxxxxx 47,000** 65,000
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Xxxxx X. Xxxxxx 66,833** 60,000
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Xxxx X. Xxxxxx 0 13,000
000 Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000
Xxxxxx X. Xxxxxxxx, Xx. 5,000 19,000
0000 Xxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxx 00000
Rein Luik 69,630 0
00000 Xxxx Xxx Xxxx
Xxx Xxxxx Xxxxx, Xxxxxxxxxx 00000
J. Xxx Xxxxxxxx 152,570 65,000
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Xxxx X. Xxxxxx 15,550** 15,000
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Total 447,513 258,400
======= =======
-----------------------
*No representations or warranties regarding the Shareholders' record ownership
of and/or title to the Company Stock Options held are made hereby.
**Includes 87,930 shares, 32,000 shares, 11,000 shares and 6,000 shares held by
brokers in margin accounts for the benefit of Messrs. Anton, Branum, Xxxxxx and
Xxxxxx, respectively.
