Exhibit 5
TRANSACTION SUPPORT AGREEMENT
This Transaction Support Agreement (this "Agreement"), dated as of May 7,
2004, is by and among Quadrangle Capital Partners LP, a Delaware limited
partnership ("QCP"), Quadrangle Select Partners LP, a Delaware limited
partnership ("QSP"), Quadrangle Capital Partners-A LP, a Delaware limited
partnership ("QCP-A" and together with QCP and QSP, the "Quadrangle Entities"),
Xxxxxx Technologies, Inc., a Delaware corporation ("Xxxxxx"), Xxxxxx Holdings,
Inc., a newly formed Delaware corporation that is a wholly owned subsidiary of
Xxxxxx ("Newco"), Xxxxxxx Capital II, L.P., a Delaware limited partnership
("Xxxxxxx"), Strategic Entrepreneur Fund II, L.P., a Delaware limited
partnership ("SEF"), Protek Telecommunications Solutions Ltd., a corporation
organized under the laws of England and Wales, whose principal place of business
is located at 0 Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxx, Xxxxxx Xxxxxxx ("Protek"),
Xxxx X. Xxxxxxxx ("Beaumont"), Xxxxx Xxxxxxx ("Butcher"), and Xxx Xxxxxxxxx
("Xxxxxxxxx"). The Quadrangle Entities, Xxxxxx, Newco and Protek are referred to
in this Agreement as the "Specified Parties" and, together with the other
parties to this agreement, the "Parties".
Concurrent with the execution and delivery of this Agreement, the Parties
are entering into and delivering (a) a Stock Purchase Agreement by and among
Newco, Protek, Beaumont, Butcher, Xxxxxxxxx and the other shareholders of Protek
(the "Protek Agreement"), (b) an Agreement and Plan of Merger by and among
Xxxxxx, Newco and Parallel Acquisition, Inc., a wholly owned subsidiary of Newco
("Acquisition Sub") (the "Xxxxxx Agreement"), and (c) an Investment Agreement by
and among Newco, the Quadrangle Entities, Xxxxxxx and SEF (the "Investment
Agreement" and, together with the Protek Agreement and the Xxxxxx Agreement, the
"Transaction Agreements"). The Parties are entering into this Agreement for the
purpose of coordinating the performance and consummation of the transactions
contemplated by Transaction Agreements and to impose certain restrictions on the
exercise of termination rights and waiver of conditions under the Transaction
Agreements.
The Parties therefore, in consideration of the mutual covenants set forth
herein and in the Transaction Agreements, hereby agree as follows:
1. Concurrent Closings. The consummation of the transactions contemplated
by the Transaction Agreements shall occur on the second business day after the
satisfaction and waiver (as provided herein and therein) of each of the
conditions set forth in Article VII of the Xxxxxx Agreement, Sections 8 and 9 of
the Protek Agreement and Section 6 of the Investment Agreement (other than
conditions that may only be satisfied by deliveries to be made at the respective
closings) at the offices of Xxxxxxxxxxx & Xxxxxxxx LLP located at 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx at 11 a.m., local time, or such other time and place
as the Specified Parties may agree. None of the transactions contemplated by any
Transaction Agreement shall be, nor be deemed to have been, consummated unless
the transactions contemplated by each other Transaction Agreement shall have
been or are simultaneously being consummated.
2. No Exercise of Certain Termination Rights. No Specified Party shall
exercise the rights of termination provided under (a) Section 12.1(i) of the
Protek Agreement, (b) Section 8.01(a) of the Xxxxxx Agreement, or (c) Section
9.3(a) of the Investment Agreement without the prior written consent of each
other Specified Party. Newco shall not exercise the termination rights provided
under Sections 8.01(e) or (f) of the Xxxxxx Agreement without the prior written
consent of each other Specified Party other than Xxxxxx.
3. Cross-Termination. Upon termination of any Transaction Agreement in
accordance with both the terms of such Transaction Agreement and this Agreement,
the Parties effecting such termination shall provide prompt written notice to
the other Parties to the address set forth on the signature pages hereto and the
Parties shall cause each other Transaction Agreement to terminate. Upon such a
termination of all Transaction Agreements, this Agreement shall terminate and be
of no further force and effect.
4. No Amendments. No material representation, warranty, condition,
covenant or agreement set forth in any Transaction Agreement shall be amended,
waived or modified without the prior written consent of each Specified Party (it
being understood that the updating of schedules provided for under any
Transaction Agreement shall not of itself constitute such an amendment, waiver
or modification). The foregoing shall not be deemed to limit or modify the
rights of any Party to withhold consent to the amendment of any Transaction
Agreement in accordance with its terms.
5. No Waivers. No material condition of any Specified Party to the
performance of that party's obligations under a Transaction Agreement shall be
waived by that Specified Party without the prior written consent of the other
Specified Parties.
6. Further Assurances. Each Party shall use all reasonable efforts to
take or cause to be taken all actions, and to do or cause to be done all other
things, necessary, proper or advisable in order for such Party to fulfill and
perform its obligations in respect of this Agreement and each of the Transaction
Agreements to which it is a party, or otherwise to consummate and make effective
the transactions contemplated by the Transaction Agreements.
7. SEC Transaction Filings. Each Party shall cooperate with Xxxxxx as may
be reasonably requested by it in connection with the preparation, filing and
mailing of the SEC Transaction Filings (as such term is defined in the Xxxxxx
Agreement), including provision of such information as may be necessary or
reasonably requested for inclusion therein. The information to be provided by
each other Party to Xxxxxx for inclusion in any SEC Transaction Filing will be
true and correct and will not, neither at the time such information is provided
to Xxxxxx nor when the definitive SEC Transaction Filings are filed with the SEC
and mailed to Xxxxxx stockholders, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. Each Party shall provide prompt
notice to Xxxxxx of any change that makes or is reasonably likely to make such
information untrue or misleading, and shall cooperate with Xxxxxx in the
preparation, filing and mailing of any amendments to an SEC Transaction Filing
made necessary or desirable by such developments.
8. Representations of Each Party. Each Party hereby represents and
warrants to each other Party as follows:
(a) Such Party has full power and authority to enter into this
Agreement and the other Transaction Agreements and to perform fully its
obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. If an entity, such entity has been duly
organized under the applicable laws of its jurisdiction of organization. The
execution and delivery of this Agreement and the other Transaction Agreements
and the performance by such Party of its obligations hereunder and thereunder
and the consummation of the transactions contemplated hereby and thereby have
been duly and validly authorized by all necessary action on the part of such
Party, including, if an entity, all necessary action of its equityholders and
its directors or comparable governing body. Each of this Agreement and the other
Transaction Agreements is a valid and binding obligation of such Party,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent conveyance and transfer, reorganization, receivership,
moratorium, and other similar laws affecting the rights and remedies of
creditors generally and to the general principles of equity.
(b) Except as disclosed in any Transaction Agreement or the
applicable schedule thereto, neither the execution, delivery or performance of
this Agreement and the other Transaction Agreements nor the consummation of the
transactions contemplated hereby and thereby, with or without the giving of
notice or passage of time, or both, will violate, or result in any breach of, or
constitute a default under, or result in the imposition of any encumbrance upon
any asset of such Party pursuant to any provision of its charter, bylaws or
other charter or governing instrument or agreement, or any statute, rule or
regulation, or other agreement, document or instrument by which the Company is
bound or to which it or any of its properties are subject.
(c) Except as disclosed in any Transaction Agreement or the
applicable schedule thereto, there is no litigation or governmental proceeding
or investigation pending or, to the knowledge of such Party, threatened against
such Party in respect of the transactions contemplated by this Agreement and the
Transaction Agreements.
(d) Except as disclosed in any Transaction Agreement or the
applicable schedule thereto, no person has or will have, as a result of the
transactions contemplated by this Agreement, any right, interest or claim
against or upon such Party for any commission, fee or other compensation as a
finder or broker because of any act or omission by such Party.
9. Certain Notices. Each Party hereto shall provide prompt written notice
to each other Party upon obtaining actual knowledge of any of the following:
(a) the occurrence of any event or circumstance that has or is
reasonably expected to have (i) a "Company Material Adverse Effect" as defined
in the Protek Agreement, (ii) a "Parent Material Adverse Effect" or "Xxxxxx
Material Adverse Effect" as defined in the Xxxxxx Agreement, or (ii) a "Material
Adverse Effect" on Newco as such terms are defined in the Investment Agreement;
(b) the pendancy of, or a threat to bring, any litigation, the existence,
or the entry of a final and adverse judgment in respect, of which would cause
any of the conditions set forth in Article VII of the Xxxxxx Agreement, Sections
8 and 9 of the Protek Agreement and Section 6 of the Investment Agreement to
fail to be satisfied if not cured prior to the date of determination of
satisfaction of such conditions;
(c) any material breach by such Party or another Party of any of the
covenants and agreements set forth in the Transaction Agreements or this
Agreement; and
(d) any event or occurrence which in such Party's opinion is reasonably
likely to result in any of the conditions set forth in Article VII of the Xxxxxx
Agreement, Sections 8 and 9 of the Protek Agreement and Section 6 of the
Investment Agreement not being capable of being satisfied on or before September
30, 2004.
10. Certain Fees. (a) General. Terms used in this Section 10 without
definition have the meanings given to them in the Xxxxxx Agreement.
(b) In the event (i) Xxxxxx shall have terminated the Xxxxxx Agreement
pursuant to Section 8.01(g) thereof or (ii) Parent shall have terminated the
Xxxxxx Agreement pursuant to Section 8.01(f) thereof and either (1) the board of
directors of Xxxxxx (or any committee thereof) shall have recommended to the
stockholders of Xxxxxx a Competing Transaction or (2) Xxxxxx enters into or
approves a definitive agreement with respect to, or consummates, a Competing
Transaction with any person (other than Parent, Merger Sub or their respective
affiliates) within twelve (12) months following such termination, then, in any
such case, Xxxxxx shall promptly (and, in any event, within three (3) business
days after (x) termination by Xxxxxx pursuant to clause (i) and (y) the later of
such termination or the consummation of such Competing Transaction pursuant to
clause (ii)), pay to the Quadrangle Entities (or to such entity(ies) as the
Quadrangle Entities may jointly designate in writing) their pro rata shares of
an aggregate one-time termination fee of $500,000 (the "Quadrangle Termination
Fee"). The Quadrangle Termination Fee shall be payable by wire transfer of
immediately available funds.
(c) Xxxxxx shall pay Quadrangle Entities (or to such entity(ies) as the
Quadrangle Entities may jointly designate in writing) their pro rata shares of
an aggregate fee equal to the Transaction Expenses of the Quadrangle Entities
upon the termination of the Xxxxxx Agreement pursuant to Section 8.01 thereof
(but excluding any termination thereof resulting from the covenants of the
Parties under Section 3 of this Agreement that arises from a breach by any
Quadrangle Entity of any of its representations, warranties, covenants or
agreements in the Investment Agreement). "Transaction Expenses" shall mean, in
respect of any given party, that party's reasonable documented out-of-pocket
fees, costs and expenses (including travel expenses and legal, accounting,
financial advisor and other consultant fees and expenses) incurred in connection
with this Agreement and the transactions contemplated by this Agreement,
including the preparation, execution and delivery of this Agreement and such
party's compliance with this Agreement, whether or not the transactions
contemplated hereby shall be consummated.
(d) Xxxxxx shall pay to Protek a fee equal to Protek's Transaction
Expenses upon the termination of the Xxxxxx Agreement pursuant to Sections 8.01
(f) or (g) thereof, provided (i) that Protek shall not have been in breach of
any representation, warranty, covenant or agreement in the Protek Agreement at
the time of such termination that would give rise to a claim for indemnification
thereunder, and (ii) that no "Company Material Adverse Effect," as defined in
the Protek Agreement, shall exist at the time of such termination, and provided,
further, that such payment of Transaction Expenses shall be made first by offset
against the principal amount and accrued but unpaid interest owed to Xxxxxx
under the Protek Bridge Facility (as defined in the Protek Agreement).
(e) Any payment required to be made pursuant to this Section 10 shall be
made as promptly as practicable but, in the case of paragraphs (c) and (d), not
later than five (5) business days after the final determination by the
Quadrangle Entities or Protek respectively of such amount and shall (subject to
the second proviso of paragraph (d) immediately preceding) be made by wire
transfer of immediately available funds to an account designated in writing by
the Quadrangle Entities or Protek, as the case may be.
11. No Publicity. No Party hereto shall issue any press release or make
any public announcement concerning this Agreement or the Transaction Agreements,
nor any transaction contemplated hereby or thereby, without the prior written
consent of each other Party hereto, which they may withhold in their reasonable
discretion (it being acknowledged and agreed that such discretion in approval
may reasonably include the effects of any such publicity on Xxxxxx, including
the effects of the requirements of U.S. Federal securities laws and the costs
and administrative inconvenience which might be imposed by requiring parallel
announcements by Xxxxxx). It is acknowledged and agreed that Xxxxxx will
publicly announce the execution of this Agreement, the Protek Agreement, the
Xxxxxx Agreement and the Investment Agreement, and will make such other public
filings in respect thereof and of the transactions contemplated hereby and
thereby as are required by law or are necessary or appropriate in order to
effect the transactions contemplated hereby and thereby.
12. Miscellaneous. This Agreement is governed by New York law without
regard to principles of conflict of law. Together with the Transaction
Agreements, this Agreement constitutes the entire agreement of the Parties in
respect of the subject matter of this Agreement and may only be amended in
writing by a document signed by all the Parties. This Agreement may be signed in
counterparts.
[Remainder of page intentionally left blank; counterpart signature pages follow]
The undersigned have executed this Agreement, intending to be bound hereby,
as of the date first set forth above.
QUADRANGLE CAPITAL PARTNERS LP
By: Quadrangle GP Investors LP, its
General Partner
By: Quadrangle GP Investors LLC,
its General Partner
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
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Title: Managing Principal
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QUADRANGLE SELECT PARTNERS LP
By: Quadrangle GP Investors LP, its
General Partner
By: Quadrangle GP Investors LLC,
its General Partner
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
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Title: Managing Principal
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QUADRANGLE CAPITAL PARTNERS-A LP
By: Quadrangle GP Investors LP, its
General Partner
By: Quadrangle GP Investors LLC,
its General Partner
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
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Title: Managing Principal
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Address for Notices for above signatories:
Quadrangle Group LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Facsimile number: (000) 000-0000
Electronic mail address:
xxxxxxx.xxxxx@xxxxxxxxxxxxxxx.xxx
with a copy (which shall not constitute notice) to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Facsimile number: (000) 000-0000
Electronic mail address: xxxxx.xxxxxx@xxxx.xxx
The undersigned have executed this Agreement, intending to be bound hereby,
as of the date first set forth above.
XXXXXX TECHNOLOGIES, INC.
By: /s/ Xxxxxx Quick
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Name: Xxxxxx Quick
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Title: President and Chief Executive Officer
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XXXXXX HOLDINGS, INC.
By: /s/ Xxxxxx Quick
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Name: Xxxxxx Quick
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Title: Chief Executive Officer
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Address for Notices for above signatories:
Xxxxxx Technologies Inc.
000 Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attention: Director of Legal Affairs
Facsimile number: (000) 000-0000
Electronic mail address: xxxxxxx@xxxxxx.xxx
with a copy (which shall not constitute notice) to:
Xxxxxxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Esq.
Facsimile number: (000) 000-0000
Electronic mail address: xxxxx@xx.xxx
The undersigned have executed this Agreement, intending to be bound hereby,
as of the date first set forth above.
XXXXXXX CAPITAL II, L.P.
By: Xxxxxxx Brothers, LLC, its
General Partner
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
--------------------------------
Title: Managing Member
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STRATEGIC ENTREPRENEUR
FUND II, L.P.
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
--------------------------------
Title: General Partner
The undersigned have executed this Agreement, intending to be bound hereby,
as of the date first set forth above.
PROTEK TELECOMMUNICATIONS
SOLUTIONS LTD.
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Chief Executive Officer
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XXXX X. XXXXXXXX
/s/ Xxxx X. Xxxxxxx
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XXXXX XXXXXXX
/s/ Xxxxx Xxxxxxx
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XXX XXXXXXXXX
/s/ Xxx Xxxxxxxxx
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