EXHIBIT 5
STOCKHOLDER VOTING AGREEMENT
AGREEMENT, dated as of May 4, 1998, by and between Analog Acquisition
Corp., a Delaware corporation ("Purchaser"), and the other party signatory
hereto (the "Stockholder"). Capitalized terms used but not defined herein shall
have the meanings set forth in the Agreement and Plan of Merger, dated the date
hereof, by and between Purchaser and ABC (the "Company") (as such agreement may
be amended from time to time, the "Merger Agreement").
WHEREAS, concurrently herewith, Purchaser and the Company are entering
into a Merger Agreement, pursuant to which Purchaser will be merged with and
into the Company (the "Merger"), whereby each share of common stock, par value
$.01 per share, of the Company ("Company Common Stock") issued and outstanding
immediately prior to the Effective Time will be converted into the right to
receive cash, other than any shares to remain outstanding pursuant to Section
2(g)(iii) of the Merger Agreement and any Dissenting Shares as defined in
Section 2(i) of the Merger Agreement.
WHEREAS, as a condition to Purchaser's entering into the Merger Agreement,
Purchaser requires that the Stockholder enter into, and the Stockholder has
agreed to enter into, this Agreement with Purchaser.
NOW, THEREFORE, in order to implement the foregoing and in consideration
of the mutual agreements contained herein, the parties hereby agree as follows:
Section 1. CERTAIN DEFINITIONS. The following terms, when used in this
Agreement, shall have the following meanings (such definitions to be equally
applicable to both singular and plural terms of the terms defined):
"ACQUISITION PROPOSAL" shall mean any agreement, letter of intent,
proposal or offer (other than the transactions contemplated in the Merger
Agreement) involving the Company or any of its Subsidiaries for, or an inquiry
or indication of interest that reasonably could be expected to lead to: (i) any
merger, consolidation, share exchange, recapitalization, reorganization,
dissolution, liquidation, business combination, or other similar transaction
with the Company or any of its Subsidiaries, (ii) any sale, lease, exchange,
mortgage, pledge, transfer or other disposition of a material portion of the
assets of the Company and its Subsidiaries, taken as a whole, in a single
transaction or series of transactions, or (iii) any tender offer or exchange
offer for all or any portion of the outstanding shares of capital stock of the
Company or any of its Subsidiaries or the filing of a registration statement
under the Securities Act of 1933, as amended, in connection therewith, but shall
not include the Merger Agreement.
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"AFFILIATE" means, with respect to any Person, any other Person directly
or indirectly controlling, Controlled by, or under common Control with such
Person, provided that no security holder of the Company shall be deemed an
Affiliate of any other security holder solely by reason of any investment in the
Company. For the purpose of this definition, the term "control" (including with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of stock,
as a trustee or executor, by contract or credit arrangement or otherwise.
"BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to
any agreement, arrangement or understanding, whether or not in writing. Without
duplicative counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities Beneficially Owned by
all other Persons with whom such Person would constitute a "group" as described
in Section 13(d)(3) of the Exchange Act.
"BUSINESS DAYS" means any day on which the principal offices of the
Securities and Exchange Commission in Washington, D.C. are open to accept
filings or, in the case of determining a date when any payment is due, any day
other than a day on which banks in New York, New York are required or authorized
to be closed.
"COMPANY" has the meaning ascribed thereto in the recitals of this
Agreement.
"COMPANY COMMON STOCK" has the meaning ascribed thereto in the recitals of
this Agreement.
"CONTROL" (including the terms "CONTROLLED BY" and "UNDER COMMON CONTROL
WITH") means the possession, directly or indirectly or as a trustee or executor,
of the power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of stock, as a trustee or executor, by
contract or credit arrangement or otherwise.
"EXISTING SHARES" has the meaning ascribed thereto in Section 2(a)(i).
"HSR ACT" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended.
"MERGER" has the meaning ascribed thereto in the recitals of this
Agreement.
"PERMITTED TRANSFEREE" means in the case of any Stockholder, (a) a spouse
or lineal descendent (including by adoption and stepchildren), heir, executor,
testamentary trustee or legatee of the Stockholder or (b) any trust or estate
the beneficiaries of which, or any corporation,
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limited liability company or partnership, the stockholders, members or partners
of which include only the Persons described in clause (a) above.
"PERSON" means an individual, corporation, partnership, limited liability
company, limited partnership, association, trust, unincorporated organization or
other entity or group (as defined in Section 13(d)(3) of the Exchange Act).
"PURCHASER" has the meaning ascribed thereto in the introductory paragraph
of this Agreement.
"SHARES" means the Existing Shares, together with any shares of Company
Common Stock acquired of record or beneficially by the Stockholder in any
capacity after the date hereof and prior to the termination hereof, whether upon
exercise of options, conversion of convertible securities, purchase, exchange or
otherwise; PROVIDED, HOWEVER, that in the event of a stock dividend or
distribution, or any change in the Company Common Stock by reason of any stock
dividend, split-up, recapitalization, combination, exchange of shares or the
like, the term "Shares" shall be deemed to refer to and include the Shares as
well as all such stock dividends and distributions and any shares into which or
for which any or all of the Shares may be changed or exchanged.
"STOCKHOLDER" has the meaning ascribed thereto in the introductory
paragraph to this Agreement.
"SUBSIDIARY" means, with respect to any Person, any entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by such Person.
"TERMINATION DATE" has the meaning ascribed thereto in Section 9 of this
Agreement.
"TRUSTEE" has the meaning ascribed thereto in Section 2(a)(i) of this
Agreement.
Section 2. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. The
Stockholder hereby represents and warrants to Purchaser as follows:
(a) (i) The Stockholder is either (A) the record holder or
beneficial owner of the number of, or (B) trustee of a trust that is
the record holder or beneficial owner of, and whose beneficiaries
are the beneficial owners (such trustee, a "Trustee"), shares of
Company Common Stock and Options as is set forth opposite the
Stockholder's name on Schedule I hereto (the "Existing Shares").
(ii) On the date hereof, the Existing Shares set forth
opposite the Stockholder's name on Schedule I hereto constitute all
of the outstanding shares
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of Company Common Stock owned of record or beneficially by the
Stockholder. The Stockholder does not have record or beneficial
ownership of any Shares not set forth on Schedule I hereto.
(iii) The Stockholder has sole power of disposition with
respect to all of the Existing Shares set forth opposite the
Stockholder's name on Schedule I and sole voting power with respect
to the matters set forth in Section 4 hereof and sole power to
demand dissenter's or appraisal rights, in each case with respect to
all of the Existing Shares set forth opposite the Stockholder's name
on Schedule I, with no restrictions on such rights, subject to
applicable federal securities laws and the terms of this Agreement.
(iv) The Stockholder will have sole power of disposition with
respect to Shares other than Existing Shares, if any, which become
beneficially owned by the Stockholder and will have sole voting
power with respect to the matters set forth in Section 4 hereof and
sole power to demand dissenter's or appraisal rights, in each case
with respect to all Shares other than Existing Shares, if any, which
become beneficially owned by the Stockholder with no restrictions on
such rights, subject to applicable federal securities laws and the
terms of this Agreement.
(b) The Stockholder has the legal capacity, power and authority to
enter into and perform all of the Stockholder's obligations under this
Agreement. Other than as set forth in Schedule 2(b), the execution,
delivery and performance of this Agreement by the Stockholder will not
violate any other agreement to which the Stockholder is a party or by
which the Stockholder is bound including, without limitation, any trust
agreement, voting agreement, stockholders agreement, voting trust,
partnership or other agreement. This Agreement has been duly and validly
executed and delivered by the Stockholder and constitutes a valid and
binding agreement of the Stockholder, enforceable against the Stockholder
in accordance with its terms, except as limited by (a) bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to
creditor's rights generally, (b) general principles of equity, whether
such enforceability is considered in a proceeding in equity or at law, and
to the discretion of the court before which any proceeding therefore may
be brought, or (c) public policy considerations or court decisions which
may limit the rights of the parties thereto for indemnification. All
necessary consents of any beneficiary of or holder of interest in any
trust of which a Stockholder is Trustee to the execution and delivery of
this Agreement and the consummation of the transactions contemplated
hereby have been obtained. If the Stockholder is married and the
Stockholder's Shares constitute community property, this Agreement has
been duly authorized, executed and delivered by, and constitutes a valid
and binding agreement of, the Stockholder's spouse, enforceable against
such person in accordance with its terms.
(c) (i) No filing with, and no permit, authorization, consent or
approval of, any state or federal public body or authority is necessary
for the execution of this
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Agreement by the Stockholder and the consummation by the Stockholder of
the transactions contemplated hereby and (ii) neither the execution and
delivery of this Agreement by the Stockholder nor the consummation by the
Stockholder of the transactions contemplated hereby nor compliance by the
Stockholder with any of the provisions hereof shall (x) conflict with or
result in any breach of any applicable trust, partnership agreement or
other agreements or organizational documents applicable to the
Stockholder, (y) result in a violation or breach of, or constitute (with
or without notice or lapse of time or both) a default (or give rise to any
third party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of
any kind to which the Stockholder is a party or by which the Stockholder
or any of the Stockholder's properties or assets may be bound or (z)
violate any order, writ, injunction, decree, judgment, statute, rule or
regulation applicable to the Stockholder or any of the Stockholder's
properties or assets.
(d) Except for the shares of Company Common Stock identified in
Schedule II hereto (the "Pledged Shares"), the Stockholder's Shares and
the certificates representing such Shares are now and at all times during
the term hereof will be held by the Stockholder, or by a nominee or
custodian for the benefit of the Stockholder, free and clear of all liens,
claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever,
except for any such encumbrances or proxies arising hereunder.
(e) No broker, investment banker, financial adviser or other person
is entitled to any broker's, finder's, financial adviser's or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of the Stockholder in
his or her capacity as such.
(f) The Stockholder understands and acknowledges that Purchaser is
entering into the Merger Agreement in reliance upon the Stockholder's
execution and delivery of this Agreement with Purchaser.
Section 3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. Purchaser
hereby represents and warrants to the Stockholder as follows:
(a) Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its formation.
(b) Purchaser has all necessary power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance by Purchaser of this
Agreement and the consummation by Purchaser of the transactions
contemplated hereby have been duly and validly authorized
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and approved by all required corporate action other than shareholder
approval which shall be effected prior to the Effective Time. This
Agreement has been duly executed and delivered by Purchaser, and (assuming
due authorization, execution and delivery by the Stockholder) constitutes
a valid and binding obligation of Purchaser, enforceable against it in
accordance with its terms, except as limited by (a) bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to
creditor's rights generally, (b) general principles of equity, whether
such enforceability is considered in a proceeding in equity or at law, and
to the discretion of the court before which any proceeding therefor may be
brought, or (c) public policy considerations or court decisions which may
limit the rights of the parties thereto for indemnification.
(c) The execution and delivery of this Agreement do not, and the
consummation by Purchaser of the transactions contemplated by this
Agreement and compliance by Purchaser with the provisions of this
Agreement will not, conflict with, or result in any breach or violation
of, or default (with or without notice or lapse of time, or both) under,
or give rise to a right of termination, cancellation or acceleration of or
"put" right with respect to any obligation or to loss of a material
benefit under, or result in the creation of any lien upon any of the
properties or assets of Purchaser under, (i) any charter or by-laws of
Purchaser, (ii) any loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession,
franchise or license applicable to Purchaser or its properties or assets
or (iii) any judgment, order, decree, statute, law, ordinance, rule,
regulation or arbitration award applicable to Purchaser or its properties
or assets. No consent, approval, order or authorization of, or
registration, declaration or filing with, or notice to, any state or
federal public body or authority is required by or with respect to
Purchaser in connection with the execution and delivery of this Agreement
by Purchaser or the consummation by Purchaser of any of the transactions
contemplated by this Agreement.
(d) No broker, investment banker, financial adviser or other person
is entitled to any broker's, finder's, financial adviser's or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of the Purchaser.
Section 4. AGREEMENT TO VOTE; PROXY
(a) The Stockholder hereby agrees that, until the Termination Date
(as defined in Section 9), at any meeting of the stockholders of the
Company, however called, or in connection with any written consent of the
stockholders of the Company, the Stockholder shall vote (or cause to be
voted) the Shares held of record or beneficially by the Stockholder (i) in
favor of the Merger, the execution and delivery by the Company of the
Merger Agreement and the approval of the terms thereof and each of the
other actions contemplated by the Merger Agreement and this Agreement and
any actions required in furtherance hereof and thereof; (ii) against any
action or agreement that would result in a
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breach of any covenant, representation or warranty or any other obligation
or agreement of the Company under the Merger Agreement or this Agreement;
and (iii) against the following actions (other than the Merger and the
transactions contemplated by the Merger Agreement or any such actions
identified in writing by Purchaser in advance): (A) any extraordinary
corporate transaction, including, without limitation, a merger,
consolidation or other business combination involving the Company or its
Subsidiaries; (B) a sale, lease or transfer of a material amount of assets
of the Company or its Subsidiaries or a reorganization, recapitalization,
dissolution or liquidation of the Company or its Subsidiaries; (C) any
change in the majority of the board of directors of the Company; (D) any
material change in the present capitalization of the Company or any
amendment of the Company's Certificate of Incorporation or By-Laws; (E)
any other material change in the Company's corporate structure or
business; or (F) any other action which is intended, or could reasonably
be expected, to impede, interfere with, delay, postpone, discourage or
materially adversely affect the Merger or the transactions contemplated by
the Merger Agreement or this Agreement. The Stockholder shall not enter
into any agreement or understanding with any person or entity to vote or
give instructions in any manner inconsistent with clauses (i) or (ii) of
the preceding sentence.
(b) THE STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS, PURCHASER AND
ANY DESIGNEE OF PURCHASER, EACH OF THEM INDIVIDUALLY, THE STOCKHOLDER'S
IRREVOCABLE (UNTIL THE TERMINATION DATE) PROXY AND ATTORNEY-IN-FACT (WITH
FULL POWER OF SUBSTITUTION) TO VOTE THE SHARES AS SET FORTH IN SECTION
4(a) ABOVE. THE STOCKHOLDER INTENDS THIS PROXY TO BE IRREVOCABLE (UNTIL
THE TERMINATION DATE) AND COUPLED WITH AN INTEREST AND WILL TAKE SUCH
FURTHER ACTION AND EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO
EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY REVOKES ANY PROXY
PREVIOUSLY GRANTED BY THE STOCKHOLDER WITH RESPECT TO THE STOCKHOLDER'S
SHARES.
Section 5. CERTAIN COVENANTS OF THE STOCKHOLDER. Except in accordance with
the terms of this Agreement, the Stockholder hereby covenants and agrees as
follows:
(a) Prior to the Termination Date, no Stockholder shall, in its
capacity as such, directly or indirectly (including through advisors,
agents or other intermediaries), solicit (including by way of furnishing
information) or respond to any inquiries or the making of any proposal by
any person or entity (other than Purchaser or any Affiliate thereof) with
respect to the Company that constitutes or could reasonably be expected to
lead to an Acquisition Proposal. If the Stockholder in its capacity as
such receives any such inquiry or proposal, then the Stockholder shall
within 24 hours furnish Purchaser with an accurate description of the
material terms (including any changes or adjustments to such terms as a
result of negotiations or otherwise) and conditions, if any, of such
inquiry or proposal and the identity of the person making it. The
Stockholder, in its capacity as such, will
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immediately cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore with
respect to any of the foregoing; provided, that the limitation set forth
in this sentence shall not restrict the Stockholder from engaging in any
such activities with such a third party who hereafter makes a Superior
Acquisition Proposal. The foregoing provisions of this Section 5(a) shall
not restrict a Stockholder who is also a director of the Company from
taking any actions, or refraining from complying with the foregoing
provision, in the Stockholder's capacity as a director, provided that any
such actions do not violate Section 5(k) of the Merger Agreement.
(b) Prior to the Termination Date, the Stockholder shall not,
directly or indirectly (i) except pursuant to the terms of the Merger
Agreement or this Agreement, offer for sale, sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of, enforce or permit the
execution of the provisions of any redemption agreement with the Company
or enter into any contract, option or other arrangement or understanding
with respect to or consent to the offer for sale, sale, transfer, tender,
pledge, encumbrance, assignment or other disposition of, or exercise any
discretionary powers to distribute, any or all of the Stockholder's Shares
or any interest therein, including any trust income or principal, except
in each case to a Permitted Transferee who is or agrees to become bound by
this Agreement; (ii) except as contemplated hereby, grant any proxies or
powers of attorney with respect to any Shares, deposit any Shares into a
voting trust or enter into a voting agreement with respect to any Shares;
or (iii) take any action that would make any representation or warranty of
the Stockholder contained herein untrue or incorrect or have the effect of
preventing or disabling the Stockholder from performing the Stockholder's
obligations under this Agreement.
(c) The Stockholder hereby waives any rights of appraisal or rights
to dissent from the Merger that the Stockholder may have. The Trustee
represents that no beneficiary who is a beneficial owner of Shares under
any trust has any right of appraisal or right to dissent from the Merger
which has not been so waived.
(d) Unless, in connection therewith, the Shares held by any trust
which are presently subject to the terms of this Agreement are transferred
to the Stockholder and remain subject in all respects to the terms of this
Agreement, or other Permitted Transferees who upon receipt of such Shares
become signatories to this Agreement, the Stockholder who is a Trustee
shall not take any action to terminate, close or liquidate any such trust
and shall take all steps necessary to maintain the existence thereof at
least until the first to occur of (i) the Effective Time and (ii) the
Termination Date.
Section 6. FURTHER ASSURANCES. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
necessary or desirable to consummate and
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make effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement.
Section 7. CERTAIN EVENTS. The Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Stockholder's Shares and shall be
binding upon any person or entity to which legal or Beneficial Ownership of such
Shares shall pass, whether by operation of law or otherwise, including without
limitation the Stockholder's heirs, guardians, administrators or successors or
as a result of any divorce.
Section 8. STOP TRANSFER. The Stockholder agrees with, and covenants to,
Purchaser that the Stockholder shall not request that the Company register the
transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing any of the Stockholder's Shares, unless such transfer is made in
compliance with this Agreement.
Section 9. TERMINATION. The obligations of the Stockholder and the
irrevocable proxy contained in Section 4(b) of this Agreement shall terminate
upon the first to occur of (a) the Effective Time and (b) the date the Merger
Agreement is terminated in accordance with its terms (the "Termination Date");
provided that the provisions of Sections 2, 3, 9 and 10 and any claim for breach
of any representation, warranty, covenant or other agreement under this
Agreement shall survive the Effective Time and/or the Termination Date, as
applicable.
Section 10. MISCELLANEOUS.
(a) NOTICES. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been
duly given (i) on the day of service if served personally on the party to
whom notice is to be given; (ii) on the day of transmission if sent via
facsimile transmission to the facsimile number given below, and telephonic
confirmation of receipt is obtained promptly after completion of
transmission, provided that a copy shall be sent via certified mail,
return receipt requested, simultaneously with any such facsimile; (iii) on
the business day after delivery to Federal Express or similar overnight
courier or the Express Mail service maintained by the United States Postal
Service; or (iv) on the fifth day after mailing, if mailed to the party to
whom notice is to be given, by first class mail, registered or certified,
postage prepaid and properly addressed, to the party as follows:
If to the Stockholder Xxxxxx Xxxxxxx
00 Xxxxx Xxxxx Xxxxx
Xxxxxx Xxxxxx, Xxx Xxxx 00000
Telecopier: (516)
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If to Purchaser: Analog Acquisition Corp.
c/o 399 Venture Partners Inc.
000 Xxxx Xxxxxx
00xx Xxxxx, Xxxx 0
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Xx.
Telecopier: 000-000-0000
and: Xxxxxx, Xxxxx & Bockius LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Telecopier: 000-000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth
above.
(b) At any time prior to the Effective Time, any party hereto may,
with respect to any other party hereto, (i) extend the time for the
performance of any of the obligations or other acts, (ii) waive any
inaccuracies in the representations and warranties contained herein or in
any document delivered pursuant hereto or (iii) waive compliance with any
of the agreements or conditions contained herein. Any such extension or
waiver shall be valid if set forth in an instrument in writing signed by
the party or parties to be bound thereby.
(c) The headings contained in this Agreement are for the convenience
of reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(d) If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of 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 by the Merger Agreement
is not affected in any manner 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.
(e) This Agreement, including all exhibits, disclosure schedules and
schedules hereto, constitutes the entire agreement and supersedes all
prior agreements and undertakings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof and
except as otherwise expressly provided herein.
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(f) Neither this Agreement nor any of the rights or obligations
hereunder may be assigned by any party (whether by operation of law or
otherwise) without the prior written consent of the other parties hereto.
Subject to the preceding sentence, this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, and no other Person shall have any
right, benefit or obligation under this Agreement as a third party
beneficiary or otherwise.
(g) The parties hereto 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. It is accordingly agreed that the
parties hereto shall be entitled to specific performance of the terms
hereof, this being in addition to any other remedy to which they are
entitled at law or in equity.
(h) No failure or delay on the part of any party hereto in the
exercise of any right hereunder shall impair such right or be construed to
be a waiver of, or acquiescence in, any breach of any representation,
warranty or agreement herein, nor shall any single or partial exercise of
any such right preclude other or further exercise thereof or of any other
right. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies otherwise
available.
(i) Notwithstanding anything herein to the contrary, no Person
executing this Agreement who is, or becomes during the term hereof, a
director of the Company makes any agreement or understanding herein in his
or her capacity as such director, and the agreements set forth herein
shall in no way restrict any director in the exercise of his or her
fiduciary duties as a director of the Company. The Stockholder has
executed this Agreement solely in his or her capacity as the record or
beneficial holder of the Stockholder's Shares or as the trustee of a trust
whose beneficiaries are the beneficial owners of the Stockholder's Shares.
(j) Each party agrees to bear its own expenses in connection with
the transactions contemplated hereby.
(k) This Agreement shall be governed and construed in accordance
with the laws of the State of New York, without giving effect to any
choice of law or conflict of law provision or rule that would cause the
application of the laws of any jurisdiction other than the State of New
York, except to the extent that the General Corporation Law of the State
of Delaware applies as a result of the Company being incorporated in the
State of Delaware, in which case such General Corporation Law shall apply.
(l) EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
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CONTEMPLATED BY THE MERGER AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
(m) This Agreement may be executed in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which
when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
ANALOG ACQUISITION CORP.
By: /s/ Xxx X. Xxxxxx
--------------------------
Name: Xxx X. Xxxxxx
Title: Vice President
/s/ Xxxxxx Xxxxxxx
--------------------------
Xxxxxx Xxxxxxx
SCHEDULE I
EXISTING SHARES
---------------
STOCKHOLDER NO. OF EXISTING SHARES NO. OF OPTION SHARES
----------- ---------------------- --------------------
Xxxxxx Xxxxxxx 899,022 0
SCHEDULE II
PLEDGED SHARES
--------------
STOCKHOLDER NO. OF PLEDGED SHARES
----------- ---------------------
Xxxxxx Xxxxxxx 0
