______________________________________________
______________________________________________
SUBSCRIPTION AND OPTION AGREEMENT
between
G.E.M. USA, INC.
and
BOONTON ELECTRONICS CORPORATION
DATED: October 21, 1996
______________________________________________
______________________________________________
TABLE OF CONTENTS
1. SUBSCRIPTION FOR COMMON SHARES. . . . . . . . . . . . . .
1.1 Subscription. . . . . . . . . . . . . . . . . . . . .
1.2 Subscription Price. . . . . . . . . . . . . . . . . .
1.3 Payment of Subscription Price . . . . . . . . . . . .
1.4 Certificates for Common Shares. . . . . . . . . . . .
2. OPTION. . . . . . . . . . . . . . . . . . . . . . . . . .
2.1 Option . . . . . . . . . . . . . . . . . . . . . . .
2.2 Option Period. . . . . . . . . . . . . . . . . . . .
2.3 Exercise of Option . . . . . . . . . . . . . . . . .
2.4 Option Price . . . . . . . . . . . . . . . . . . . .
2.5 Certificates for Option Shares . . . . . . . . . . .
2.6 Assignability of Option. . . . . . . . . . . . . . .
3. REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . .
3.1 Representations and Warranties of the Company. . . .
3.2 Representations and Warranties of Buyer. . . . . . .
3.3 Survival of Representations and Warranties and
Covenants. . . . . . . . . . . . . . . . . . . . . .
4. CLOSING REQUIREMENTS. . . . . . . . . . . . . . . . . . .
4.1 The Company's Deliverables . . . . . . . . . . . . .
4.2 Buyer's Deliverables . . . . . . . . . . . . . . . .
4.3 The Company's Post-Execution Deliverables. . . . . .
5. FIRST SUBSCRIPTION AGREEMENT. . . . . . . . . . . . . . .
6. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . .
6.1 Indemnification by the Company . . . . . . . . . . .
6.2 Indemnification by Buyer . . . . . . . . . . . . . .
7. FURTHER ASSURANCES. . . . . . . . . . . . . . . . . . . .
8. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . .
9. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . .
9.1 Entire Agreement . . . . . . . . . . . . . . . . . .
9.2 Binding Effect . . . . . . . . . . . . . . . . . . .
9.3 Headings . . . . . . . . . . . . . . . . . . . . . .
9.4 Counterparts . . . . . . . . . . . . . . . . . . . .
9.5 Assignment . . . . . . . . . . . . . . . . . . . . .
9.6 Fees and Expenses/Brokers. . . . . . . . . . . . . .
9.7 Applicable Law . . . . . . . . . . . . . . . . . . .
SUBSCRIPTION AND OPTION AGREEMENT
THIS AGREEMENT made this 21st day of October, 1996 by and
between BOONTON ELECTRONICS CORPORATION, a company incorporated
under the laws of the State of New Jersey, U.S.A. whose principal
business address is at 00 Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000, Xxxxxx Xxxxxx of America (the "Company") and G.E.M. USA,
INC., a company incorporated under the laws of Delaware whose
principal business address is at General de Mesure et de
Maintenance Electronique, S.A., c/o Metrix S.A., Xxxx xxx Xxxxxxxx,
0, xxxxxx du Pre' Challes, X.X. 000, 00000 Xxxxxx-xx-Xxxxx Xxxxx,
Xxxxxx ("Buyer").
WITNESSETH:
WHEREAS, the Company and Buyer entered into that certain
Subscription and Option Agreement dated as of February 23, 1996, as
amended on June 24, 1996 and July 15, 1996 (true copies of which
are attached hereto as Exhibit A and are hereinafter collectively
referred to as the "First Subscription Agreement") pursuant to
which (i) Buyer agreed to purchase 180,300 shares of Common Stock
in the Company representing, when issued, approximately 11.836% of
all the issued and outstanding shares of capital stock in the
Company (the "Treasury Shares"), and (ii) the Company granted to
Buyer, among other things, an option to acquire an additional
523,700 shares of Common Stock in the Company (the "First Option")
within the earlier to occur of (i) 30 days following written notice
by the Company to Buyer of the issuance to the Company of a final
Administrative Consent Order by the New Jersey Department of
Environmental Protection ("DEP") setting forth the terms of a
comprehensive environmental cleanup and/or remediation plan for the
Company's former leasehold facility located at Xxxxxxx Road in
Parsippany, New Jersey (the "Property") in form and substance
acceptable to Buyer in its sole and absolute discretion, or (ii)
August 15, 1996 (the "First Option Period"); and
WHEREAS, Buyer did not exercise the First Option prior to
the expiration of the First Option Period for the reasons stated to
the Company in the letter from Buyer's counsel dated August 13,
1996, to the effect that Buyer was not satisfied with the proposed
remediation procedures to be adopted by the Company with respect to
the Property as contained in that certain Memorandum of Agreement
dated March 31, 1995, with proposed amendments thereto through
August, 1996, by and between the Company and the DEP; and
WHEREAS, the Company desires to sell to Buyer (pursuant
to authority from the Company's Board of Directors previously given
pursuant to a resolution adopted in accordance with Section 8 of
the First Subscription Agreement) the number of shares of Common
Stock in the Company contained under the First Option free and
clear of all liens, encumbrances, security interests, title defects
and restrictions, and Buyer is willing to subscribe for and/or
acquire an option to subscribe for such shares of Common Stock in
the Company which, when fully issued, together with Buyer's prior
acquisition of the Treasury Shares, would represent approximately
34.2% of all the issued and outstanding shares of Common Stock in
the Company, pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and
mutual covenants hereinafter contained, the parties hereto agree as
follows:
1. SUBSCRIPTION FOR COMMON SHARES.
1.1 Subscription. Subject to the terms and conditions of
this Agreement, Buyer hereby subscribes for Eighty Thousand
(80,000) shares of Common Stock in the Company (the "Common
Shares"), free and clear of all liens, encumbrances, security
interests, title defects and restrictions.
1.2 Subscription Price. The subscription price for the
Common Shares shall be Two and 50/100 ($2.50) U.S. Dollars per
Common Share (the "Subscription Price").
1.3 Payment of Subscription Price. Buyer hereby agrees to
pay the Subscription Price to the Company on or prior to ________,
1996, provided, however, that the Company shall have satisfied each
of the conditions set forth in Section 4.3 of this Agreement to the
satisfaction of Buyer. The Subscription Price shall be paid in
immediately available funds by wire transfer or cable to the
account of the Company in the manner designated by the Company on
the date on which the Company has satisfied each of the conditions
set forth in Section 4.3 of this Agreement to the satisfaction of
Buyer.
1.4 Certificates for Common Shares. Upon its receipt of the
Subscription Price, the Company shall immediately cause to be
issued and delivered to Buyer a certificate evidencing Buyer's
ownership interest in and title to the Common Shares on the form of
certificate approved by the Company, duly endorsed in blank,
together with proof that Buyer's name and its ownership of the
Common Shares has been added to the Company's Stock Register and
Stock Transfer Ledger.
2. OPTION.
2.1 Option. In consideration of One ($1.00) Dollar and other
good and valuable consideration, the receipt of which is hereby
acknowledged, the Company hereby grants to Buyer the exclusive
right and option (the "Option") during the Option Period, as that
term is defined in Section 2.2 below, to subscribe for up to Four
Hundred Forty Three Thousand Seven Hundred (443,700) shares of
Common Stock in the Company (the "Option Shares") free and clear of
all liens, encumbrances, security interests, title defects and
restrictions, against payment therefor of the Option Price as
provided in Section 2.4 below.
2.2 Option Period. The Option may be exercised by Buyer at
any time from and after the execution of this Agreement through and
including April 21, 1997 (the "Option Period").
2.3 Exercise of Option. The Option may be exercised by Buyer
at any time during the Option Period by written notice to the
Company no later than 5:00 p.m. Eastern Standard Time on the last
day of the Option Period (the "Option Notice"). The Option Notice
shall set forth Buyer's binding subscription for the Option Shares,
free and clear of all liens, encumbrances, security interest, title
defects and restrictions and subject to all of the terms and
conditions of this Agreement, it being the intention of the parties
hereto that the Company's representations, warranties, covenants
and indemnifications provided herein to Buyer shall extend to
Buyer's subscription for the Option Shares as if such
representations, warranties, covenants and indemnifications had
been made by the Company to Buyer upon Buyer's exercise of the
Option.
2.4 Option Price. On the timely exercise of the Option by
Buyer, Buyer agrees to pay the Company Three and 24/100 ($3.24)
U.S. Dollars per Option Share (the "Option Price") in immediately
available funds by wire transfer or cable to the account of the
Company in the manner designated by the Company.
2.5 Certificates for Option Shares. Upon its receipt of the
Option Price the Company shall immediately cause to be issued and
delivered to Buyer certificates evidencing Buyer's ownership
interest in and title to the Option Shares on the form of
certificate approved by the Company, duly endorsed in blank,
together with proof that Buyer's name and ownership of the Option
Shares has been added to the Company's Stock Register and Stock
Transfer Ledger.
2.6 Assignability of Option. The Option is non-assignable,
and any attempted assignment of the Option by Buyer is void and
shall cause the Option to terminate automatically without notice.
3. REPRESENTATIONS AND WARRANTIES.
3.1 Representations and Warranties of the Company. The
Company hereby reaffirms and restates to Buyer each and every
representation and warranty made by it in the First Subscription
Agreement to the same extent as if each such representation and
warranty was fully set forth at length herein, and as to each such
representation and warranty hereby confirms that each such
representation and warranty is true and accurate as of the date
hereof; other than with respect to the representations made in (i)
Section 5.1(c) of the First Subscription Agreement which is hereby
amended to reflect that as of the date hereof the total issued and
outstanding share capital of the Company consists of 1,636,585
common shares, and (ii) Section 5.1(i) of the First Subscription
Agreement.
3.2 Representations and Warranties of Buyer. Buyer hereby
reaffirms and restates to the Company each and every representation
and warranty made by it in the First Subscription Agreement to the
same extent as if each such representation and warranty was fully
set forth at length herein, and as to each such representation and
warranty hereby confirms that each such representation and warranty
is true and accurate as of the date hereof.
3.3 Survival of Representations and Warranties and Covenants.
Buyer and the Company agree that the representations, warranties
and covenants contained in this Agreement shall survive the
execution and delivery of this Agreement.
4. CLOSING REQUIREMENTS.
4.1 The Company's Deliverables. Upon the execution of this
Agreement by the parties hereto:
(A) The Company shall cause to be delivered to Buyer (a)
proper evidence demonstrating that Buyer's name has been included
in the Company's Stock Register and Stock Transfer Ledger, and (b)
certified true copies of the following documents duly executed and
approved for or on behalf of the Company:
(i) resolutions of the Company authorizing and
approving the terms of this Agreement, including, without
limitation, the issuance of the Common Shares to Buyer and
approving the terms of the Option, and that certain shareholder's
and voting agreement dated as of the date hereof by and between
Buyer, the Company and each of Xxxx X. Xxxxx, Xxxxxx X. XxXxxx and
Xxxx Xxxxxx;
(ii) resolutions of the Company authorizing and
directing its appropriate officers to allot, transfer and deliver
the Common Shares (and Option Shares upon Buyer's exercise of the
Option) to Buyer and directing the Secretary to enter Buyer's name
and stock ownership on the records of the Company.
4.2 Buyer's Deliverables. Upon the execution of this
Agreement by the parties hereto, Buyer shall cause to be delivered
to the Company payment of the Subscription Price in the manner
provided by Section 1.3 of this Agreement together with a certified
true copy of resolutions duly adopted for and on behalf of Buyer
authorizing Buyer to enter into and perform this Agreement and the
shareholder's and voting agreement.
4.3 The Company's Post-Execution Deliverables. On or prior
to __________, 1996, or such later date as may be agreed to by
Buyer in writing, the Company shall cause to be delivered to Buyer
certificates evidencing the Common Shares, which shall be duly
endorsed in blank by the Company.
5. FIRST SUBSCRIPTION AGREEMENT.
Notwithstanding anything herein contained to the
contrary, the parties hereto acknowledge and agree that the
provisions contained in Section 4 and Section 8 of the First
Subscription Agreement are in full force and effect and that
nothing in this Agreement shall be construed as superseding any of
the terms or provisions contained therein.
6. INDEMNIFICATION.
6.1 Indemnification by the Company. The Company hereby
agrees to indemnify and hold harmless Buyer against and from any
and all claims, actions or causes of action, assessments, losses,
damages (including damages which are consequential in nature or are
related to unrealized or lost profits), liabilities, costs and
expenses, including without limitation reasonable attorneys' fees
and expenses, which the Buyer may suffer or incur resulting from,
related to or arising out of any breach of the representations,
warranties and covenants of the Company contained in this Agreement
or the nonfulfillment of any agreement on the part of the Company
contained in this Agreement.
6.2 Indemnification by Buyer. Buyer hereby agrees to
indemnify and hold harmless the Company against and from any and
all claims, actions or causes of action, assessments, losses,
damages (including damages which are consequential in nature or are
related to unrealized or lost profits) liabilities, costs and
expenses, including without limitation reasonable attorneys' fees
and expenses, which it may suffer or incur resulting from, relating
to or arising out of any breach of the representations, warranties
and covenants of Buyer contained in this Agreement or the
nonfulfillment of any agreement on the part of Buyer contained in
this Agreement.
7. FURTHER ASSURANCES. The parties hereto each agree to execute
such other documents, agreements or instruments as may be necessary
or desirable for the implementation of this Agreement and the
consummation of the transactions contemplated hereby.
8. NOTICES. Any notices or other communications required or
permitted hereunder, shall be sufficiently given if in writing and
delivered or sent by internationally recognized overnight express
courier service or by fax transmittal, as follows or to such other
address or fax transmittal number as the parties shall have given
notice of pursuant to the foregoing terms:
If to Buyer, to:
G.E.M. USA, Inc.
c/o Metrix S.A.
Metrix S.A.
0, xxxxxx xx Xxx Xxxxxxx - XX 000
00000 Xxxxxx-xx-Xxxxx Cedex
Attn: Xxxxxx Auzan, President
Fax Number: 000 00 00 00 00 00
With a copy to:
Xxxxxx, Xxxxxx & Xxxxxxxx
A Professional Association
0 Xxxxxxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxx Xxxxxx 07962-1991, U.S.A.
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Fax Number: (000) 000-0000
If to the Company, to:
Boonton Electronics Corporation
00 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000, X.X.X.
Attn: President
Fax Number: (000) 000-0000
With a copy to:
Smith, Luhn,& Xxxxx, P.C.
Courthouse Plaza
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Fax Number: (000) 000-0000
9. MISCELLANEOUS.
9.1 Entire Agreement. This written document expresses the
entire agreement among the parties hereto and supersedes any prior
agreements or understandings concerning the subject of this Agree-
ment. No amendment shall be valid unless in writing and signed by
all parties.
9.2 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
heirs, executors, administrators, representatives, successors and
assigns.
9.3 Headings. The section and other headings contained in
this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
9.4 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but
all of which taken together shall constitute one and the same
instrument.
9.5 Assignment. This Agreement shall not be assignable by
any party without the prior written consent of the other parties.
9.6 Fees and Expenses/Brokers. Each party to this Agreement
shall be responsible for and pay his/her own legal, accounting and
other costs and expenses incurred by them in connection with this
Agreement and the transactions contemplated thereby. The parties
hereby represent to each other that they have not entered into any
agreement or incurred any obligation, directly or indirectly, for
the payment of any broker's or finder's fee or commission in
connection with this Agreement and the transactions contemplated
thereby.
9.7 Applicable Law. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of
New Jersey. Should any provision of this Agreement require
judicial interpretation, it is agreed that the court interpreting
or considering such provision shall not apply the presumption that
the terms hereof shall be more strictly construed against a party
by reason of the rule or conclusion that a document should be
construed more strictly against the party who itself or through its
agent prepares the same. It is agreed and stipulated that all
parties hereto have participated equally in the preparation of this
Agreement and that legal counsel was consulted by each party before
the execution of this Agreement.
IN WITNESS WHEREOF, the parties have executed this
Subscription and Option Agreement as of the day and year first
above written.
Company:
Attest: BOONTON ELECTRONICS CORPORATION
_____________________ By: /s/ Xxxxxx Xxxxx
------------------
XXXXXX XXXXX
Buyer:
G.E.M. USA, INC.
______________________ By: /s/ Xxxxxx Auzan
----------------------
Xxxxxx Auzan, President
