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STOCKHOLDERS' AGREEMENT
Among
SEVERAL STOCKHOLDERS OF MICROWAVE POWER DEVICES, INC.,
ERICSSON INC.
and
ERICSSON MPD ACQUISITION CORP.
Dated as of October 12, 2000
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TABLE OF CONTENTS
Page
ARTICLE I
TENDER OF SHARES
SECTION 1.01. Tender of Shares.................................................................................. 2
ARTICLE II
VOTING AGREEMENT
SECTION 2.01. Voting Agreement.................................................................................. 2
SECTION 2.02. Irrevocable Proxy................................................................................. 4
ARTICLE III
THE OPTION
SECTION 3.01. Grant of Option................................................................................... 4
SECTION 3.02. Exercise of Option................................................................................ 5
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
SECTION 4.01. Organization, Qualification....................................................................... 7
SECTION 4.02. Authority Relative to this Agreement.............................................................. 8
SECTION 4.03. No Conflict....................................................................................... 8
SECTION 4.04. Title to the Shares............................................................................... 9
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
SECTION 5.01. Corporate Organization............................................................................ 9
SECTION 5.02. Authority Relative to this Agreement.............................................................. 9
SECTION 5.03. No Conflict; Required Filings and Consents........................................................ 10
SECTION 5.04. Investment Intent................................................................................. 10
SECTION 5.05. Necessary Funds................................................................................... 11
ARTICLE VI
COVENANTS OF THE STOCKHOLDERS
SECTION 6.01. No Disposition or Encumbrance of Shares........................................................... 11
SECTION 6.02. No Solicitation of Transactions................................................................... 11
SECTION 6.03. Further Action; Reasonable Best Efforts........................................................... 12
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SECTION 6.04. Additional Shares................................................................................. 12
ARTICLE VII
TERMINATION
SECTION 7.01. Termination....................................................................................... 12
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendment......................................................................................... 13
SECTION 8.02. Waiver............................................................................................ 13
SECTION 8.03. Notices........................................................................................... 13
SECTION 8.04. Severability...................................................................................... 14
SECTION 8.05. Further Assurances................................................................................ 15
SECTION 8.06. Assignment........................................................................................ 15
SECTION 8.07. Parties in Interest............................................................................... 15
SECTION 8.08. Specific Performance.............................................................................. 15
SECTION 8.09. Governing Law..................................................................................... 15
SECTION 8.10. Waiver of Jury Trial.............................................................................. 16
SECTION 8.11. Expenses.......................................................................................... 16
SECTION 8.12. Headings.......................................................................................... 16
SECTION 8.13. Counterparts...................................................................................... 16
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STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT, dated as of October 12, 2000 (this
"Agreement"), among the several stockholders of MICROWAVE POWER DEVICES, INC., a
corporation organized under the laws of the State of Delaware (the "Company"),
that are parties hereto (each, a "Stockholder" and, collectively, the
"Stockholders"), ERICSSON INC., a corporation organized under the laws of the
State of Delaware ("Parent"), and ERICSSON MPD ACQUISITION CORP., a corporation
organized under the laws of the State of Delaware and a direct wholly owned
subsidiary of Parent ("Purchaser").
WHEREAS, Parent and Purchaser are entering into an Agreement
and Plan of Merger dated as of the date hereof (as amended from time to time,
the "Merger Agreement"; capitalized terms used but not defined in this Agreement
shall have the meanings ascribed to them in the Merger Agreement), with the
Company, pursuant to which (i) Purchaser agrees to commence a cash tender offer
(as such tender offer may hereafter be amended from time to time, the "Offer")
to acquire all the issued and outstanding shares of Company Common Stock for
$8.70 per Share (such amount, or any greater amount per Share paid pursuant to
the Offer, being the "Per Share Amount"); and (ii) following consummation of the
Offer, Purchaser will merge with and into the Company (the "Merger");
WHEREAS, as of the date hereof, each Stockholder is the record
and beneficial owner of the number of Shares set forth opposite such
Stockholder's name in Exhibit A hereto (with respect to each Stockholder, such
Stockholder's "Existing Shares" and, together with any shares of Company Common
Stock acquired after the date hereof, whether upon the exercise of warrants,
options, conversion of convertible securities or otherwise, such Stockholder's
"Shares"); and
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement and incurring the obligations set forth therein, including the
Offer, Parent and Purchaser have required that the Stockholders agree to enter
into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereto agree as follows:
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ARTICLE I
TENDER OF SHARES
SECTION 1.01. Tender of Shares. Each Stockholder, severally
and not jointly, agrees to validly tender, pursuant to and in accordance with
the terms of the Offer, as soon as practicable after commencement of the Offer
but in no event later than ten business days after the date of commencement of
the Offer, such Stockholder's Shares and to not withdraw such Stockholder's
Shares, except following termination of the Offer pursuant to its terms. Each
Stockholder, severally and not jointly, hereby acknowledges and agrees that
Purchaser's obligation to accept for payment and pay for such Stockholder's
Shares is subject to the terms and conditions of the Offer. Each Stockholder
hereby permits Parent and the Purchaser to publish and disclose in the Offer
Documents and, if approval of the Company's stockholders is required under
applicable Law, the Proxy Statement (including all documents and schedules filed
with the SEC) its identity and ownership of Shares and the nature of its
commitments, arrangements and understandings under this Agreement. Parent and
Purchaser agree (a) not to decrease the cash price to be paid to the Company's
stockholders in the Offer or the Merger below $8.70 per Share, and that (b) on
the date that the Stockholders' Shares are accepted for payment and purchased by
Purchaser pursuant to the Offer, Purchaser or Parent, as the case may be, shall
make, or cause to be made by the Depositary, payment by wire transfer to each
Stockholder of the purchase price for all its Shares that are tendered by it and
accepted for payment and purchased by Purchaser to such account as is designated
by such Stockholder in the letter of transmittal which accompanies the tender of
such Stockholder's Shares.
ARTICLE II
VOTING AGREEMENT
SECTION 2.01. Voting Agreement. Each Stockholder, severally
and not jointly, hereby agrees that, from and after the date hereof and until
the earlier to occur of the consummation of the Offer in which the Stockholders'
Shares are purchased and the termination of this Agreement, at any meeting of
the stockholders of the Company, however called, and in any action by consent of
the stockholders of the Company, such Stockholder will, subject to the absence
of a preliminary or permanent injunction or other requirement under applicable
law by any United States federal, state or foreign court barring such action,
vote (or cause to be voted) such Stockholder's Shares (a) in favor of the
approval and adoption of the Merger Agreement, the Merger and all the
transactions contemplated by the Merger Agreement and this Agreement and
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otherwise in such manner as may be necessary to consummate the Merger; (b)
except as otherwise agreed to in writing in advance by Parent, against any
action, proposal, agreement or transaction that would result in a breach of any
covenant, obligation, agreement, representation or warranty of the Company
contained in the Merger Agreement or of the Stockholder contained in this
Agreement; and (c) against any action, proposal, agreement or transaction,
including, but not limited to, any Superior Proposal or Acquisition Proposal
(other than the Merger Agreement or the Transactions), that could result in any
of the conditions to the Company's obligations under the Merger Agreement
(whether or not theretofore terminated) not being fulfilled or that could
reasonably be expected to materially impede, interfere with or prevent, delay,
postpone, discourage or adversely affect the Merger Agreement, the Offer, the
Merger or this Agreement.
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SECTION 2.02. Irrevocable Proxy. Each Stockholder hereby
irrevocably grants to and appoints Xxxx Xxxxxxxx and Xxxxxx Xxxxxxxxx acting
jointly and Xxxxxxxx Xxxxx and Xxxx Xxxxx acting jointly as such Stockholder's
attorney and proxy pursuant to the provisions of Section 212(c) of Delaware Law,
with full power of substitution, to vote and otherwise act (by written consent
or otherwise) with respect to such Stockholder's Shares at any meeting of
stockholders of the Company (whether annual or special and whether or not an
adjourned or postponed meeting) or consent in lieu of any such meeting or
otherwise, on the matters and in the manner specified in Section 2.01 (the
"Irrevocable Proxy"). THIS PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND
COUPLED WITH AN INTEREST AND, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW,
SHALL BE VALID AND BINDING ON ANY PERSON TO WHOM A STOCKHOLDER MAY TRANSFER ANY
OF HIS OR HER SHARES IN BREACH OF THIS AGREEMENT. Each Stockholder hereby
revokes all other proxies and powers of attorney with respect to such
Stockholder's Shares that may have heretofore been appointed or granted, and no
subsequent proxy or power of attorney shall be given or written consent executed
(and if given or executed, shall not be effective) by any Stockholder with
respect thereto. All authority herein conferred or agreed to be conferred shall
survive the death or incapacity of any Stockholder and the termination of the
Irrevocable Proxy and any obligation of each Stockholder under this Agreement
shall be binding upon the heirs, personal representatives, successors and
assigns of such Stockholder. Each Stockholder represents that any proxies
heretofore given in respect of such Stockholder's Shares are not irrevocable,
and that any such proxies are hereby revoked. Each Stockholder understands and
acknowledges that Parent is entering into the Merger Agreement in reliance upon
each Stockholder's execution and delivery of this Agreement. Each Stockholder
hereby affirms that the irrevocable proxy set forth in this Section 2.02 is
given in connection with the execution of the Merger Agreement, and that such
irrevocable proxy is given to secure the performance of the duties of such
Stockholder under this Agreement. Each Stockholder hereby ratifies and confirms
all that the Irrevocable Proxy may lawfully do or cause to be done by virtue
hereof. Each Irrevocable Proxy shall survive until the termination of this
Agreement in accordance with Section 7.01, at which point such Irrevocable Proxy
shall be automatically revoked.
ARTICLE III
THE OPTION
SECTION 3.01. Grant of Option. Each Stockholder, severally and
not jointly, hereby grants to Purchaser an irrevocable option (each, an "Option"
and, collectively, the "Options") to purchase all, and not less than all, of
such Stockholder's Shares at the applicable Per Share Amount, net to such
Stockholder in cash. Each Option shall be exercisable only upon
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the occurrence of a Triggering Event (as hereinafter defined) and shall expire
if not exercised prior to the close of business on the tenth business day
following termination of the Merger Agreement.
SECTION 3.02. Exercise of Option. (a) All but not less than
all of the Options may be exercised by Purchaser as to all Stockholders, at any
time prior to the expiration of such Options, only if one of the following occur
(each, a "Triggering Event"):
(i) the Offer is terminated without Purchaser purchasing
Shares thereunder solely because the Minimum Condition has not been
met; or
(ii) the Offer is consummated without that Stockholder having
tendered all its Shares in accordance with Section 1.01.
(b) Notwithstanding any provision of this Agreement to the
contrary, it is understood that Purchaser shall not be entitled to purchase the
Shares pursuant to any Option if Purchaser shall have failed to purchase Shares
pursuant to the Offer in breach of its obligations under the Merger Agreement.
Provided that the Merger Agreement shall not have been terminated, upon the
purchase of the Shares of Stockholder pursuant to the applicable Option,
Purchaser shall, subject to the satisfaction or valid waiver of the conditions
set forth in Article VII of the Merger Agreement, complete the Merger in
accordance with, and subject to the terms and conditions set forth in, the
Merger Agreement.
(c) If Purchaser wishes to exercise an Option, Purchaser shall
send a written notice (the "Exercise Notice") to the applicable Stockholder of
its irrevocable intention to exercise the Option, specifying the place, and, if
then known, the time and the date (the "Closing Date") of the closing (the
"Closing") of the purchase. No Exercise Notice shall be valid and no Option may
be exercised unless contemporaneously therewith an irrevocable Exercise Notice
is delivered to all other Stockholders with respect to all other Options that
are then exercisable which provides for a contemporaneous closing. The Closing
Date shall occur on the third business day (or such longer period as may be
required by applicable Law or regulation) after the later of (i) the date on
which such Exercise Notice is delivered and (ii) the satisfaction of the
conditions set forth in Section 3.02(f). If the Closing does not occur by such
date, the Options shall terminate and be of no further force or effect. For the
purposes of this Agreement, the term "business day" means a Saturday, a Sunday
or a day on which banks are not required or authorized by Law or executive order
to be closed in the City of New York.
(d) At the Closing, (i) each Stockholder whose Shares are
being purchased shall deliver to Purchaser (or its designee) all of such
Stockholder's Shares by delivery of a certificate or certificates evidencing
such Shares duly endorsed to Purchaser or accompanied by
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stock powers duly executed in favor of Purchaser, with all necessary stock
transfer stamps affixed, and (ii) Purchaser shall pay to each such Stockholder
the aggregate Per Share Amount for such Stockholder's Shares.
(e) Purchaser shall not be under any obligation to deliver any
Exercise Notice and may allow the Options to terminate without purchasing any
Shares hereunder; provided, however, that once Purchaser has delivered to a
Stockholder an Exercise Notice, subject to the terms and conditions set forth in
this Agreement, Purchaser shall, subject to the satisfaction of the conditions
set forth in Section 3.02(f), be bound to effect the purchase of that
Stockholder's Shares as described in such Exercise Notice.
(f) The Closing shall be subject to the satisfaction of each
of the following conditions:
(i) No Governmental Authority shall have enacted,
issued, promulgated, enforced or entered any Law (whether temporary,
preliminary or permanent) which is then in effect and has the effect of
making the acquisition of Shares by Purchaser pursuant to the exercise
of the Options illegal or otherwise materially restricting, preventing
or prohibiting consummation of the purchase and sale of the Shares
pursuant to the exercise of the Options;
(ii) No Governmental Authority or court of competent
jurisdiction shall have issued an order, decree, injunction or ruling
or taken any other action (which order, decree, injunction, ruling or
other action Purchaser and Parent shall have used their respective best
efforts to lift), in each case permanently restraining, enjoining or
otherwise prohibiting the purchase by Purchaser of the Shares to be
sold to it hereunder and such order, decree, injunction, ruling or
other action shall have become final and non-appealable;
(iii) any waiting period applicable to the
consummation of the purchase and sale of the Shares pursuant to the
exercise of the Options under the HSR Act or under any applicable
material non-United States statutes or regulations shall have expired
or been terminated;
(iv) any waiting period applicable to the
consummation of the purchase and sale of the Shares under the Arms
Regulations shall have expired or been terminated; and
(v) CFIUS shall have issued a written notice of
determination not to conduct a full investigation pursuant to the
Exon-Xxxxxx Provision or CFIUS shall have conducted a full
investigation of the notification pursuant to the Exon-Xxxxxx Provision
and recommended that the President of the United States permit the
Transactions, unless
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Parent shall have determined not to file or has withdrawn the filing of
notification made by the parties to CFIUS.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder, severally and not jointly, hereby represents
and warrants to Parent and to Purchaser in respect of such Stockholder as
follows:
SECTION 4.01. Organization, Qualification. (a) Such
Stockholder, if it is an individual, has all legal capacity to enter into this
Agreement, to carry out his or her obligations hereunder and to consummate the
transactions contemplated hereby.
(b) Such Stockholder, if it is a corporation or other legal
entity, (i) is duly organized, validly existing and, if applicable, in good
standing under the Laws of the jurisdiction of its incorporation or formation
and has the requisite power and authority and all necessary governmental
approvals to own, lease and operate its properties and to carry on its business
as it is now being conducted, except where the failure to be so organized,
existing or, if applicable, in good standing or to have such power, authority
and governmental approvals would not prevent or materially delay consummation of
the transactions contemplated by this Agreement or otherwise prevent or
materially delay such Stockholder from performing its obligations under this
Agreement and (ii) is duly qualified or licensed as a foreign corporation to do
business, and is, if applicable, in good standing, in each jurisdiction where
the character of the properties owned, leased or operated by such Stockholder or
the nature of its business makes such qualification or licensing necessary,
except for such failures to be so qualified or licensed and, if applicable, in
good standing that would not prevent or materially delay consummation of the
transactions contemplated by this Agreement or otherwise prevent or materially
delay such Stockholder from performing its obligations under this Agreement.
(c) Such Stockholder, if it is a corporation, has heretofore
furnished to Parent and Purchaser a complete and correct copy of the certificate
of incorporation and the by-laws or equivalent organizational documents, each as
amended to date, of such Stockholder. Such Stockholder, if it is a trust, has
heretofore furnished to Parent and Purchaser a complete and correct copy of the
trust agreement or equivalent agreement, as amended to date, of such
Stockholder. Such certificates of incorporation, by-laws or equivalent
organizational documents and any of the provisions of such certificate of
incorporation, by-laws or equivalent organizational documents are in full force
and effect. Such Stockholder is not in violation of any
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of the provisions of its certificate of incorporation, by-laws or equivalent
organizational documents.
SECTION 4.02. Authority Relative to this Agreement. Such
Stockholder has all necessary power and authority to execute and deliver this
Agreement, to perform such Stockholder's obligations hereunder and to consummate
the transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by such Stockholder and constitutes a legal, valid and
binding obligation of such Stockholder, enforceable against such Stockholder in
accordance with its terms.
SECTION 4.03. No Conflict. (a) The execution and delivery of
this Agreement by such Stockholder do not, and the performance of this Agreement
by such Stockholder shall not, (i) conflict with or violate the certificate of
incorporation or by-laws of such Stockholder that is a corporation, (ii)
assuming satisfaction of the requirements set forth in Section 4.03(b) below,
conflict with or violate the terms of any trust agreements or equivalent
organizational documents of any Stockholder that is a trust, (iii) conflict with
or violate any Law applicable to such Stockholder or by which the Shares owned
by such Stockholder are bound or affected or (iv) result in any breach of, or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance on any of the Shares owned by such Stockholder pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which such Stockholder is a party
or by which such Stockholder or the Shares owned by such Stockholder are bound
or affected, except for any such conflicts, violations, breaches, defaults or
other occurrences that would not prevent or materially delay consummation of the
transactions contemplated by this Agreement or otherwise prevent or materially
delay such Stockholder from performing its obligations under this Agreement.
(b) The execution and delivery of this Agreement by such
Stockholder do not, and the performance of this Agreement by such Stockholder
shall not, require any consent, approval, authorization or permit of, or filing
with or notification to, any Governmental Authority on the part of such
Stockholder, except (i) for applicable requirements, if any, of the Exchange
Act, Blue Sky Laws, state takeover Laws, the pre-merger notification
requirements of the HSR Act, the requirements of the Exon-Xxxxxx Provision, the
notification requirements of the Arms Regulations, and (ii) where the failure to
obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, would not prevent or materially delay consummation of
the transactions contemplated by this Agreement, or otherwise prevent such
Stockholder from performing its material obligations under this Agreement.
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SECTION 4.04. Title to the Shares. Except as set forth in
Exhibit A hereto, as of the date hereof, such Stockholder is the record and
beneficial owner of the number of Shares set forth opposite such Stockholder's
name in Exhibit A hereto. Except as set forth on Exhibit A, such Shares are all
the securities of the Company owned, either of record or beneficially, by such
Stockholder. Except as set forth in Exhibit A, the Shares owned by such
Stockholder are owned free and clear of all Liens, other than any Liens created
by this Agreement. Except as provided in this Agreement, such Stockholder has
not appointed or granted any proxy, which appointment or grant is still
effective, with respect to the Shares owned by such Stockholder. At the Closing,
such Stockholder will deliver, upon such delivery and payment of the Per Share
Amount therefor, as applicable, good, valid and marketable title to such
Stockholder's Shares free and clear of any Liens, other than pursuant to this
Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
Parent and Purchaser hereby, jointly and severally, represent
and warrant to each Stockholder as follows:
SECTION 5.01. Corporate Organization. Each of Parent and
Purchaser is a corporation duly organized, validly existing and in good standing
under the Laws of the jurisdiction of its incorporation and has the requisite
corporate power and authority and all necessary governmental approvals to own,
lease and operate its properties and to carry on its business as it is now being
conducted, except where the failure to be so organized, existing or in good
standing or to have such power, authority and governmental approvals would not
prevent or materially delay consummation of the transactions contemplated by
this Agreement or otherwise prevent or materially delay Parent or Purchaser from
performing its obligations under this Agreement.
SECTION 5.02. Authority Relative to this Agreement. Each of
Parent and Purchaser has all necessary corporate power and authority to execute
and deliver this Agreement and to perform its obligations hereunder. The
execution and delivery of this Agreement by Parent and Purchaser and the
performance by Parent and Purchaser of their obligations hereunder have been
duly and validly authorized by all necessary corporate action and no other
corporate proceedings on the part of Parent or Purchaser is necessary to
authorize this Agreement. This Agreement has been duly and validly executed and
delivered by Parent and Purchaser and, assuming due authorization, execution and
delivery by the Stockholders, constitutes a legal, valid and binding obligation
of each of Parent and Purchaser enforceable against each of Parent and
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Purchaser in accordance with its terms.
SECTION 5.03. No Conflict; Required Filings and Consents (a)
The execution and delivery of this Agreement by Parent and Purchaser do not, and
the performance of this Agreement by Parent and Purchaser will not, (i) conflict
with or violate the certificate of incorporation or by-laws or equivalent
organizational documents of Parent or Purchaser, (ii) assuming satisfaction of
the requirements set forth in 5.03(b) below, conflict with or violate any Law
applicable to Parent or Purchaser or by which any property or asset of either of
them is bound or affected, or (iii) result in any breach of, or constitute a
default (or an event which, with notice or lapse of time or both, would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or other
encumbrance on any property or asset of Parent or Purchaser pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which Parent or Purchaser is a
party or by which Parent or Purchaser or any property or asset of either of them
is bound or affected, except for any such conflicts, violations, breaches,
defaults or other occurrences that would not prevent or materially delay
consummation of the transactions contemplated by this Agreement or otherwise
prevent or materially delay Parent or Purchaser from performing its obligations
under this Agreement.
(b) The execution and delivery of this Agreement by Parent and
Purchaser do not, and the performance of this Agreement by Parent and Purchaser
will not, require any consent, approval, authorization or permit of, or filing
with, or notification to, any Governmental Authority, except (i) for applicable
requirements, if any, of the Exchange Act, Blue Sky Laws and state takeover
Laws, the pre-merger notification requirements of the HSR Act, the requirements
of the Exon-Xxxxxx Provision, the notification requirements of the Arms
Regulations, and (ii) where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would not
prevent or materially delay consummation of the transactions contemplated by
this Agreement, or otherwise prevent Parent or Purchaser from performing their
material obligations under this Agreement.
SECTION 5.04. Investment Intent. The purchase of Shares from
the Stockholders pursuant to this Agreement is for the account of Purchaser
solely for the purpose of investment and not with a view to, or for offer or
sale in connection, with any distribution thereof within the meaning of the
Securities Act.
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SECTION 5.05. Necessary Funds. Parent will have on hand and
shall provide to Purchaser, such funds as are necessary to enable Purchaser to
both perform its obligations in respect of the Offer and the Merger and to
purchase the Stockholders' Shares upon the exercise of the Options hereunder.
ARTICLE VI
COVENANTS OF THE STOCKHOLDERS
SECTION 6.01. No Disposition or Encumbrance of Shares. Each
Stockholder, severally and not jointly, hereby agrees that, except as
contemplated by this Agreement and the Merger Agreement, such Stockholder shall
not (i) sell, transfer, tender, assign, contribute to the capital of any entity,
hypothecate, give or otherwise dispose of, grant a proxy or power of attorney
with respect to, deposit into any voting trust or enter into a voting
arrangement or agreement, or create or permit to exist any Liens of any nature
whatsoever with respect to, any of such Stockholder's Shares (or agree or
consent to, or offer to do, any of the foregoing), (ii) take any action that
would make any representation or warranty of such Stockholder herein untrue or
incorrect in any material respect or have the effect of preventing or disabling
such Stockholder from performing such Stockholder's obligations hereunder or
(iii) directly or indirectly, initiate, solicit or encourage any person to take
actions that could reasonably be expected to lead to the occurrence of any of
the foregoing.
SECTION 6.02. No Solicitation of Transactions. Each
Stockholder, severally and not jointly, agrees that between the date of this
Agreement and the date of termination of the Merger Agreement, such Stockholder
will not, directly or indirectly, through any officer, director, employee, agent
or otherwise, (a) solicit, initiate, accept or encourage the submission of, any
Acquisition Proposal, or (b) participate in any discussions or negotiations
regarding, or furnish to any person any information with respect to, or
otherwise cooperate in any way with respect to, or assist or participate in, or
facilitate or encourage any proposal that constitutes, or may reasonably be
expected to lead to, an Acquisition Proposal. Each Stockholder shall, and shall
direct or cause its directors, officers, employees, representatives and agents
to, immediately cease and cause to be terminated any discussions or negotiations
with any parties that may be ongoing with respect to any Acquisition Proposal.
Each Stockholder shall promptly advise Parent orally and in writing of any
proposal, discussion, negotiation or inquiry received by such Stockholder
regarding any Acquisition Proposal or any request for information with respect
to any Acquisition Proposal, the material terms and conditions of any proposal,
discussion, negotiation or inquiry received by such Stockholder regarding such
Acquisition Proposal or request and the identity of the person making such
Acquisition Proposal or request. Each
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Stockholder shall promptly provide to Parent copies of any written materials
received by such Stockholder in connection with any proposal, discussion,
negotiation or inquiry regarding any Acquisition Proposal.
SECTION 6.03. Further Action; Reasonable Best Efforts. Upon
the terms and subject to the conditions hereof each of the parties shall use its
reasonable best efforts to take, or cause to be taken, all appropriate action,
and to do, or cause to be done, all things necessary, proper or advisable under
applicable Laws and regulations to consummate and make effective this Agreement,
including, without limitation, using its reasonable best efforts to obtain all
Permits, consents, approvals, authorizations, qualifications and orders of
Governmental Authorities and parties to contracts with the Company and the
Subsidiaries as are necessary for the consummation of this Agreement. Without
limiting the foregoing, if requested in writing by Parent, each Stockholder,
Parent and Purchaser shall file as soon as practicable notifications under the
HSR Act and each party shall respond as promptly as practicable to any inquiries
received from the Federal Trade Commission and the Antitrust Division of the
United States Department of Justice for additional information or documentation
and respond as promptly as practicable to all inquiries and requests received
from any State Attorney General or other Governmental Authority in connection
with antitrust matters. Concurrently with any filing of notifications under the
HSR Act or as soon thereafter as practicable, the parties shall each request
early termination of the HSR Act waiting period. In addition, each of the
parties agree to make or, in the case of the Stockholders, to use each of their
commercially reasonable efforts to cause the Company to make, as soon as
practicable such other filings as may be necessary or required with any other
United States or non-United States Governmental Authority. Each Stockholder
shall promptly consult with Parent and provide to Parent any information and
material with respect to filings made by them with any Governmental Authority in
connection with this Agreement and the Merger Agreement and the transactions
contemplated hereby and thereby.
SECTION 6.04. Additional Shares. Each Stockholder agrees,
while this Agreement is in effect, to give a prompt written notice to Parent of
the number of any new Shares acquired by such Stockholder after the date hereof.
ARTICLE VII
TERMINATION
SECTION 7.01. Termination. This Agreement, and all rights and
obligations of the parties hereunder, shall terminate upon the earlier of (a)
the date upon which Purchaser shall
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have purchased and paid for all of the Shares of the Stockholders in accordance
with the terms of the Offer or pursuant to the exercise of the Options granted
by the Stockholders hereunder, (b) the date on which the Options have expired in
accordance with this Agreement, and (c) the termination of the Merger Agreement
in accordance with its terms. Nothing in this Section 7.01 shall relieve any
party of liability for any breach of this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendment. This Agreement may not be amended
except by an instrument in writing signed by all the parties hereto.
SECTION 8.02. Waiver. Any party to this Agreement may (i)
extend the time for the performance of any obligation or other act of any other
party hereto, (ii) waive any inaccuracy in the representations and warranties of
another party contained herein or in any document delivered pursuant hereto and
(iii) waive compliance with any agreement of another party 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.
SECTION 8.03. Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in person, by
telecopy, or by registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at the following addresses (or at such
other address for a party as shall be specified in a notice given in accordance
with this Section 8.03):
(a) if to any Stockholder:
c/o Charterhouse Group International, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: 212/750-9704
Attention: President
with a copy to:
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Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier: 212/969-2900
Attention: Xxxxxxx X. Xxxxx, Esq.
(b) if to Parent or Purchaser:
Ericsson Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx 00000
Telecopier No: 972/583-1839
Attention: Xxxxxxxx X. Xxxxx, Esq.
Vice President and General Counsel
with a copy to:
Xxxxxxxxxxxxxxxxxxx XX Xxxxxxxx (xxxx)
Xxxxxxxxxxx, XX 00000
Xxxxxx
Telecopier No.: + 46 8 719 21 44
Attention: Xxxx Xxxxxxxx
Corporate Mergers and Acquisitions
and
Shearman & Sterling
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX Xxxxxxx
Telecopy: x00 000 0000 0000
Attention: Xxxxxxx Xxxxxxxxx, Esq.
SECTION 8.04. Severability. 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 this Agreement 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
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as closely as possible in a mutually acceptable manner in order that the
transactions contemplated by this Agreement be consummated as originally
contemplated to the fullest extent possible.
SECTION 8.05. Further Assurances. Each Stockholder, Parent and
Purchaser will execute and deliver all such further documents and instruments
and take all such further action as may be necessary in order to consummate the
transactions contemplated hereby.
SECTION 8.06. Assignment. This Agreement shall not be assigned
by operation of Law or otherwise, except that Parent and Purchaser may assign
all or any of their rights and obligations hereunder to any affiliate of Parent,
provided that no such assignment shall relieve Parent or Purchaser of its
obligations hereunder if such assignee does not perform such obligations.
SECTION 8.07. Parties in Interest. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto, and nothing
in this Agreement, express or implied, is intended to or shall confer upon any
other person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement. Notwithstanding anything herein to the contrary,
nothing set forth herein shall in any way restrict any person, including any
officer, partner, director or employee of any Stockholder in the exercise of his
or her fiduciary duties as a director or officer of the Company.
SECTION 8.08. Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of this Agreement
were not performed in accordance with the terms hereof and that the parties
shall be entitled to specific performance of the terms hereof, in addition to
any other remedy at law or in equity.
SECTION 8.09. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the Laws of the State of New York. All
actions and proceedings arising out of or relating to this Agreement shall be
heard and determined in any New York state or federal court sitting in The City
of New York, County of New York. The parties hereto hereby (i) submit to the
exclusive jurisdiction of any New York state or federal court sitting in The
City of New York, County of New York for the purpose of any Action arising out
of or relating to this Agreement brought by any party hereto, and (ii) waive,
and agree not to assert by way of motion, defense, or otherwise, in any such
Action, any claim that it is not subject personally to the jurisdiction of the
above-named courts, that its property is exempt or immune from attachment or
execution, that the Action is brought in an inconvenient forum, that the venue
of the Action is improper, or that this Agreement may not be enforced in or by
any of the above-
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named courts.
SECTION 8.10. Waiver of Jury Trial. Each of the parties hereto
hereby waives to the fullest extent permitted by applicable Law any right it may
have to a trial by jury with respect to any actions or proceedings directly or
indirectly arising out of, under or in connection with this Agreement.
SECTION 8.11. Expenses. Except as otherwise specified in this
Agreement, all costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses, whether or not the Closing
shall have occurred; except that all reasonable out-of-pocket costs of the
Stockholders in connection with this Agreement shall be borne by the Company and
reimbursed as soon as reasonably practicable upon a written request therefor.
SECTION 8.12. Headings. The descriptive headings contained in
this Agreement are included for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
SECTION 8.13. Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) 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.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the day and year first above written.
CHARTER TECHNOLOGIES LIMITED
LIABILITY COMPANY
By A. Xxxxxxxx Xxxxx
--------------------------------
Name: A. Xxxxxxxx Xxxxx
Title:
XXXXXX XXXXXXXX
/s/ Xxxxxx Xxxxxxxx
---------------------------------
XXXXX SILVER
/s/ Xxxxx Silver
-----------------------------------
XXX XXXXX
/s/ Xxx Xxxxx
-----------------------------------
XXXXXX XXXXX
/s/ Xxxxxx Xxxxx
-----------------------------------
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the day and year first above written.
ERICSSON INC.
By /s/ Xxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President and General Counsel
ERICSSON MPD ACQUISITION CORP.
By /s/ Xxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Chairman and President
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EXHIBIT A
Stockholder Number of Owned Shares Number of Shares Issuable Upon
Exercise of Options
----------- ---------------------- ------------------------------
Charter Technologies Limited Liability
Company 5,139,994 0
Xxxxxx Xxxxxxxx 306,825(1) 37,500(2)
Xxxxx Silver 187,500 18,750(2)
Xxx Xxxxx 68,181 7,500(2)
Xxxxxx Xxxxx 35,100 300,000(3)
(1) Xx Xxxxxxxx is presently indebted to the Company in the amount of
approximately $125,000. Xx Xxxxxxxx has pledged all of his Shares to the
Company to secure such indebtedness. Such indebtedness is payable upon a
sale of Xx Xxxxxxxx'x Shares.
(2) Fully vested options.
(3) As of the date of this Agreement, none of such options have vested.
