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SHAREHOLDERS' AGREEMENT
DATED AS OF
JULY 1, 2005
AMONG
WIRELESS TELECOM GROUP, INC.
AND
INVESTCORP TECHNOLOGY VENTURES LP
AND
DAMANY HOLDING GMBH
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SHAREHOLDERS' AGREEMENT (this "AGREEMENT"), dated as of July 1, 2005, among
Wireless Telecom Group, Inc., a New Jersey corporation (the "COMPANY"), and
Investcorp Technology Ventures, L.P., a limited partnership organized under the
laws of the Cayman Islands ("INVESTCORP"), and Damany Holding GmbH, a private
limited liability company organized under the laws of Germany and registered
with the commercial register of the local court (Amtsgericht) of Munich under
Xx. XXX 000 000 ("XXXXXX" and, collectively with Investcorp, the "SELLERS").
WHEREAS, the Company, the Sellers and Willtek Communications GmbH, a
limited liability corporation organized under the laws of Germany and registered
with the commercial register of the local court (Amtsgericht) of Munich under
No. HRB 46 733 ("WILLTEK"), are parties to an Amended and Restated Stock
Purchase Agreement, dated as of March 29, 2005 (the "PURCHASE AGREEMENT"),
pursuant to which, among other things, the Investor Group (as defined below)
will acquire shares of Common Stock (as defined below) (capitalized terms used
in this Agreement and not otherwise defined herein shall have the meanings given
them in the Purchase Agreement, a copy of which is attached hereto);
WHEREAS, the Company and the Sellers wish to make provision relating to the
governance of the Company following consummation of the transactions
contemplated by the Purchase Agreement, and the rights and obligations of the
parties relating to ownership and disposition of the shares of the Common Stock;
and
WHEREAS, the Closing (as defined below) is conditioned upon the Company and
the Sellers entering into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
contained herein and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used in this Agreement, the following terms
shall have the following meanings.
"ACQUISITION SHARES" means the Closing Shares issued to the Sellers at the
Closing and the Indemnification Shares placed into escrow with the Escrow Agent
at the Closing pursuant to the Indemnification Escrow Agreement.
An "AFFILIATE" of any Person means any other Person that, directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such first Person. The Company and its
Subsidiaries shall not be deemed Affiliates of any member of the Investor Group.
"AMEX" means the American Stock Exchange.
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Any Person is deemed to "BENEFICIALLY OWN" shares of Common Stock that such
Person is deemed to "beneficially own" within the meaning of Rules 13d-3 and
13d-5 under the Exchange Act as in effect on the date of this Agreement;
provided that, any Person shall be deemed to Beneficially Own any securities
that such Person has the right to acquire, whether or not such right is
exercisable immediately.
"BLACKOUT PERIOD" has the meaning ascribed to such term in Section 4.08.
"BOARD" means the board of directors of the Company.
"CLOSING OWNERSHIP PERCENTAGE" means the percentage of the Outstanding
Shares represented by (i) the Closing Shares issued to the Sellers at Closing
plus (ii) the Indemnification Shares placed into escrow at Closing pursuant to
the Indemnification Escrow Agreement, after giving effect to such issuance.
"COMMON STOCK" means the Common Stock of the Company, par value $.01 per
share.
"COMPANY NOTICE" has the meaning ascribed to such term in Section
3.01(b)(iii).
"COMPETITOR LIST" has the meaning ascribed to such term in Section
3.01(b)(i).
"CUT-OFF DATE" has the meaning ascribed to such term in Section 2.02.
"DEMAND PERIOD" has the meaning ascribed to such term in Section 4.01(a).
"DEMAND REGISTRATION STATEMENT" has the meaning ascribed to such term in
Section 4.01(a).
"DIRECTOR" means a member of the Board.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"GRACE PERIOD" means a period equal to 20 calendar days from the date on
which Investcorp's Total Ownership Amount falls below the Upper Designation
Share Total or the Lower Designation Share Total, as applicable, provided that
the Grace Period shall not begin to run, and shall be extended for so long as,
Investcorp is prohibited from acquiring additional Common Stock by Applicable
Law or internal Company policy.
"HOLDERS" means all Persons who from time to time are holders or Beneficial
Owners of Registrable Securities; provided, however, that any such Person other
than a member of the Investor Group who desires to acquire Registrable
Securities in accordance with this Agreement shall, as a condition to acquiring
any such Registrable Securities, execute a joinder agreement in which it shall
agree to be bound by the provisions of this Agreement to the same extent as the
members of the Investor Group and shall thereafter be deemed to be a member of
the Investor Group for all purposes of this Agreement, unless such Person does
not hold any Registrable Securities.
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"INCIDENTAL REGISTRATION STATEMENT" has the meaning ascribed to such term
in Section 4.02(a).
"INDEPENDENT DIRECTOR" means a director who qualifies as independent for
purposes of membership on a board of directors of a company (as opposed to
committee membership) under the then effective rules and regulations of the AMEX
and the SEC.
"INSPECTORS" has the meaning ascribed to such term in Section 4.05(n).
"INVESTOR DIRECTORS" initially means Xxxxx X. Xxxx and Xxxxx Xxx-Xxxxx, and
thereafter means such Persons who are designated in writing by Investcorp, as
such designation may change from time to time, to serve as Directors in
accordance with Section 2.01; provided, however, that each Investor Director
must (i) not be a director, officer, employee, consultant or material customer
of, or material supplier to, any Person engaged in a business that directly
competes with the Company and its Subsidiaries (which, for purposes hereof,
includes the business engaged by Willtek and its Subsidiaries), and (ii) in the
good faith judgment of Investcorp, have such credentials and experience as would
reasonably be expected of a member of the board of directors of a company with
securities listed on the AMEX.
"INVESTOR GROUP" means the Sellers and any Permitted Transferee to whom
Acquisition Shares have been transferred in accordance with this Agreement;
provided that any such Permitted Transferee has become a party hereto and has
agreed to be bound by the terms hereof.
"INVESTOR-RELATED PARTY" means a member of the Investor Group and any
Affiliate controlled by any member of the Investor Group.
"NASD" means the National Association of Securities Dealers, Inc.
"LOWER DESIGNATION SHARE TOTAL" means the number of shares of Common Stock
obtained by multiplying (i) 0.05 and (ii) the Outstanding Shares as of the date
of measurement.
"NON-INVESTOR DIRECTORS" means Directors other than the Investor Directors.
"OFFER" has the meaning ascribed to such term in Section 3.01(b)(ii).
"OFFEROR" has the meaning ascribed to such term in Section 3.01(b)(ii).
"OFFER PRICE" has the meaning ascribed to such term in Section 3.01(b)(ii).
"OPTION" has the meaning ascribed to such term in Section 3.01(b)(iii).
"OPTION NOTICE" has the meaning ascribed to such term in Section
3.01(b)(iii).
"OUTSTANDING SHARES" means the aggregate number of issued and outstanding
shares of Common Stock as of the date of measurement. The term "Outstanding
Shares" shall
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not include Common Stock that is subject to issuance upon exercise or exchange
of rights of conversion or any options, warrants or other rights.
"PERMITTED TRANSFEREES" means (i) any member of the Investor Group or any
Affiliate of any member of the Investor Group, (ii) the heirs, executors,
administrators, testamentary trustees, legatees or beneficiaries of any member
of the Investor Group and (iii) a trust, the beneficiaries of which, or a
corporation or partnership, the stockholders or general and limited partners of
which, include only one or more of the Persons specified in clauses (i) and (ii)
of this sentence.
"PERSON" means any individual, corporation, firm, partnership, limited
liability company, joint venture, trust, estate, business association,
organization, governmental entity or other entity.
"RECORDS" has the meaning ascribed to such term in Section 4.05(n).
"REGISTRATION EXPENSES" means all expenses incurred by the Company arising
from the Company's performance of or compliance with Article IV, including all
registration and filing fees and expenses (including SEC, stock exchange and
NASD fees), fees and expenses of compliance with state securities or "blue sky"
laws (including reasonable fees and disbursements of counsel for the
underwriters in connection with "blue sky" qualifications of the Registrable
Securities), printing expenses, messenger and delivery expenses, the fees and
expenses incurred in connection with the listing, if any, of the securities to
be registered on each securities exchange or national market system on which the
Common Stock is then listed, fees and disbursements of counsel for the Company
and of the independent certified public accountants of the Company (including
the expenses of any annual audit, special audit and "cold comfort" letters
required by or incident to such performance and compliance), the reasonable fees
and disbursements of one law firm representing Holders of Registrable Securities
(which, in the case of a Demand Registration Statement, shall not exceed
US$50,000 per registration, and in the case of an Incidental Registration
Statement, shall not exceed US$15,000 per registration), the fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities (including, if applicable, the fees and expenses of any "qualified
independent underwriter" (and its counsel) that is required to be retained in
accordance with the rules and regulations of the NASD), the reasonable fees and
expenses of any special experts retained by the Company in connection with such
registration, and fees and expenses of other Persons retained by the Company.
Registration Expenses shall exclude all discounts and commissions payable to
underwriters, selling brokers, managers or other similar Persons, all transfer
taxes, if any, related to the sale or disposition of Registrable Securities by
holders of such Registrable Securities, and the fees and disbursements of more
than one law firm representing holders of Registrable Securities.
"REGISTRABLE SECURITIES" means the Acquisition Shares and any securities
that are issued or distributed or are issuable in respect of any Registrable
Securities by way of conversion, dividend, stock split or other distribution,
merger, consolidation, exchange, recapitalization or reclassification or similar
transaction. As to any particular Registrable Securities, once issued, such
securities shall cease to be Registrable Securities if (i) such securities have
been registered under the Securities Act, the registration statement with
respect to
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the sale of such securities has become effective under the Securities Act and
such securities have been disposed of pursuant to such effective registration
statement, (ii) such securities have been sold or distributed pursuant to Rule
144, or (iii) such securities shall cease to be outstanding; provided, however,
that Registrable Securities Transferred among the members of the Investor Group
shall remain Registrable Securities, regardless of how they are sold or
distributed.
"REGISTRATION STATEMENT" means any registration statement of the Company
filed with, or to be filed with, the SEC under the rules and regulations
promulgated under the Securities Act, and any amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"RULE 144" means Rule 144 (or any similar provision then in force) under
the Securities Act.
"SEC" means the U.S. Securities and Exchange Commission or any successor
governmental entity.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"SELLING HOLDER" means a Holder who has requested inclusion of Registrable
Securities in a Demand Registration Statement.
"SELLING PERIOD" has the meaning ascribed to such term in Section 4.01(a).
"STATEMENT" has the meaning ascribed to such term in Section 3.01(b)(ii).
"SUBJECT SHARES" has the meaning ascribed to such term in Section
3.01(b)(iii).
"TOTAL OWNERSHIP AMOUNT" of Investcorp means the aggregate number of
Outstanding Shares Beneficially Owned by such Person and any Permitted
Transferee to whom Acquisition Shares have been transferred by such Person in
accordance with the terms of this Agreement.
"TRANSFER" has the meaning ascribed to such term in Section 3.01(a).
"TRANSFER RESTRICTED PERIOD" has the meaning ascribed to such term in
Section 3.01(a).
"UNDERWRITER" has the meaning ascribed to such term in Section 4.07(a).
"UNDERWRITTEN OFFERING" has the meaning set forth in Section 4.01(d).
"UPPER DESIGNATION SHARE TOTAL" means the number of shares of Common Stock
obtained by multiplying (i) 0.125 and (ii) the Outstanding Shares as of the date
of measurement.
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ARTICLE II
CORPORATE GOVERNANCE
SECTION 2.01. Board of Directors. (a) In accordance with the Company's
certificate of incorporation and bylaws and applicable provisions of the New
Jersey Business Corporation Act and the rules and regulations of AMEX, effective
at the Closing, the Board shall consist of no more than seven (7) Directors, and
the Board shall secure the resignation of Xxxx Xxxxxx from the Board, which
resignation shall be effective at the Closing. Unless otherwise required by the
New Jersey Business Corporation Act and the rules and regulations of AMEX, for
so long as Investcorp is entitled to designate any Investor Director pursuant to
this Section 2.01, the Board shall not take any unilateral action to increase
the size of the Board such that the Board shall consist of more than seven (7)
Directors without the prior written approval of the Investor Directors.
(b) As a condition to the Closing, and effective as of the Closing, in
accordance with and subject to the Company's certificate of incorporation and
bylaws and applicable provisions of the New Jersey Business Corporation Act and
the rules and regulations of AMEX, the Company shall cause (a) Xxxxx X. Xxxx and
Xxxxx Xxx-Xxxxx to be appointed to the Board of Directors, each to serve in such
capacity until the next annual meeting of shareholders of the Company or until
his successor is duly elected and qualified, and (b) Xxxxxxx Xxxxxx to be
appointed the Chief Executive Officer of the Company.
(c) (i) For so long as the Total Ownership Amount of Investcorp equals or
exceeds the Upper Designation Share Total from and after the date hereof, with
respect to each annual or special meeting of the Company at which Directors are
to be elected, Investcorp shall be entitled to designate up to two (2) Investor
Directors who shall be nominated by the Company's nominating committee (or of
there is no such nominating committee, the Board or any other duly authorized
committee thereof) for election as Directors, provided that such nomination
would not contravene the Company's certificate of incorporation and bylaws, the
charter of the Company's nominating committee (as applicable), applicable
provisions of the New Jersey Business Corporation Act, the rules and regulations
of AMEX, the Board's fiduciary duties to the Company's shareholders and other
constituents, and any other Applicable Law. For so long as the Total Ownership
Amount of Investcorp is less than the Upper Designation Share Total but equals
or exceeds the Lower Designation Share Total from and after the date hereof,
with respect to each annual or special meeting of the Company at which Directors
are to be elected, Investcorp shall be entitled to designate one (1) Investor
Director who shall be nominated by the Company's nominating committee (or of
there is no such nominating committee, the Board or any other duly authorized
committee thereof) for election as a Director, provided that such nomination
would not contravene the Company's certificate of incorporation and bylaws, the
charter of the Company's nominating committee (as applicable), applicable
provisions of the New Jersey Business Corporation Act, the rules and regulations
of AMEX, the Board's fiduciary duties to the Company's shareholders and other
constituents, and any other Applicable Law. If at any time the Total Ownership
Amount of Investcorp falls below the Upper Designation Share Total or the Lower
Designation Share Total, as applicable, and Investcorp does not increase its
Total Ownership Amount above the Upper Designation Share Total or the Lower
Designation Share Total, as applicable, by the end of the Grace Period,
Investcorp's rights under this Section 2.01 corresponding to the relevant share
total shall terminate, provided that
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Investcorp's rights under this Section 2.01 shall not terminate until the end of
any relevant Grace Period.
(ii) If an Investor Director dies, resigns from the Board or is removed
from the Board or disqualified from serving on the Board in accordance with
Applicable Law or the Company's certificate of incorporation or bylaws, a new
Investor Director may be designated by Investcorp to fill the vacancy created by
the death, resignation, disqualification or removal of such former Investor
Director, if at the time of such designation, after taking into account the
other Investor Directors then serving as Directors, there are less than the
number of Investor Directors serving on the Board than the number of Investor
Directors Investcorp is then entitled to designate pursuant to Section
2.01(c)(i), and the Company shall use commercially reasonable efforts to cause
such new Investor Director so designated to be appointed to the Board to fill
such vacancy, in accordance with the Company's certificate of incorporation and
bylaws and applicable provisions of the New Jersey Business Corporation Act and
the rules and regulations of AMEX.
(d) As a condition to an Investor Director's ability to stand for election,
such Investor Director shall provide to the Company in a timely manner all
information required by Regulation 14A and Schedule 14A under the Exchange Act
as the Company may request with respect to such Investor Director in a timely
manner.
SECTION 2.02 Voting of Shares. Until the earliest of (a) the second (2nd)
anniversary of the Closing Date, or (b) the date when Investcorp no longer has
the right to designate any Investor Directors under the terms of this Agreement,
or relinquishes the right to designate any Investor Directors (the earliest of
such dates, the "CUT-OFF DATE"), each member of the Investor Group, in any
election of directors or at any meeting of the shareholders of the Company at
which directors are to be elected, (i) will be present (in person or by proxy)
for purposes of establishing a quorum, and (ii) will vote, or grant a proxy to
the Company or its authorized designee(s) to vote, all shares of Common Stock
Beneficially Owned by such Person in favor of such Investor Directors and each
Non-Investor Director nominee recommended by the Board for election as
Directors, except that no member of the Investor Group shall be required to
vote, or to grant a proxy to any other Person to vote, for any Non-Investor
Director nominee in the event that such Non-Investor Director nominee is not
supported by a majority of the Non-Investor Directors (provided that nothing
herein shall relieve such member of the Investor Group from being present (in
person or by proxy) for purposes of establishing a quorum). Except as provided
above, each member of the Investor Group shall be free to vote in their sole
discretion all shares of Common Stock Beneficially Owned by such Person entitled
to vote on any other matter submitted to or acted upon by shareholders of the
Company; provided, however, that the Investor Group shall vote against any
amendment to the Company's certificate of incorporation or bylaws with respect
to the directors' and officers' indemnification provisions contained therein
which would adversely affect the rights thereunder of the Company's Directors
and officers at any time prior to such vote, except for such modifications as
are required by Applicable Law.
SECTION 2.03. Restrictions on Company Action; Bylaws. Except as required by
Applicable Law, the applicable listing or corporate governance standards of the
AMEX or the Company's certificate of incorporation or bylaws, the Company shall
not approve or recommend to its shareholders any transaction or approve,
recommend or take any other action that would
8
conflict with the terms of this Agreement. The Company and each member of the
Investor Group shall each take or cause to be taken all lawful action necessary
to ensure at all times that the Company's certificate of incorporation and
bylaws or any other agreement are not at any time inconsistent with the
provisions of this Agreement.
SECTION 2.04. Chairmanship; Vice Chairmanship. (a) Xx. Xxxxx Xxxx shall
have the right, should he so desire, to be appointed as Chairman of the Board,
and the Company shall use commercially reasonable efforts to obtain such
appointment unless such appointment is prohibited by the applicable listing or
corporate governance standards of the AMEX or any Applicable Law. Xx. Xxxx shall
have the right to continue to serve as Chairman of the Board for each year,
subject to (a) the action of the Board continuing him in such position (and the
Company shall use its best efforts to continue such appointment unless such
continuation is prohibited by the applicable listing or corporate governance
standards of the AMEX or any Applicable Law) and (b) Xx. Xxxx then being a
Director.
(b) Xx. Xxxxxxx Xxxxxxxx shall have the right, should he so desire, to be
appointed as Vice Chairman of the Board, and the Company shall use commercially
reasonable efforts to obtain such appointment unless such appointment is
prohibited by the applicable listing or corporate governance standards of the
AMEX or any Applicable Law. Xx. Xxxxxxxx shall have the right to continue to
serve as Vice Chairman of the Board for each year, subject to (a) the action of
the Board continuing him in such position (and the Company shall use its best
efforts to continue such appointment unless such continuation is prohibited by
the applicable listing or corporate governance standards of the AMEX or any
Applicable Law) and (b) Xx. Xxxxxxxx then being a Director.
ARTICLE III
TRANSFER RESTRICTIONS
SECTION 3.01. Restrictions. (a) During the 12-month period following the
Closing Date, in the case of Investcorp, and during the six (6)-month period
following the Closing Date, in the case of Damany (the "TRANSFER RESTRICTED
PERIOD"), Investcorp and Damany may not sell, dispose, convey, assign, pledge or
otherwise transfer (collectively, "TRANSFER") any of the Acquisition Shares;
provided, however, that (i) any member of the Investor Group shall have the
right to Transfer Acquisition Shares to any Permitted Transferee and (ii) as a
condition to any such Transfer to a Permitted Transferee, such Permitted
Transferee shall execute a joinder agreement in which it shall agree to be bound
by the provisions of this Agreement to the same extent as the members of the
Investor Group and shall thereafter be deemed to be a member of the Investor
Group for all purposes of this Agreement; and provided, further, that nothing
herein shall prohibit the deposit of the Indemnification Shares into escrow with
the Escrow Agent pursuant to the terms of the Indemnification Escrow Agreement.
Subject to Section 3.01(b) and applicable U.S. federal and state securities or
"blue sky" laws, after the Transfer Restricted Period, the members of the
Investor Group shall not be restricted under this Section 3.01 from Transferring
any Acquisition Shares.
(b) (i) If Investcorp shall, without the prior written approval of a
majority of the Non-Investor Directors, knowingly Transfer any Acquisition
Shares to any Person set forth on Schedule 3 hereto (the "COMPETITOR LIST")
without complying with the provisions of
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Section 3.01(b)(ii)-(v) hereof, then immediately following the consummation of
such Transfer: (i) each of the Investor Directors designated by Investcorp shall
resign from the Board effective immediately, and (ii) any and all rights of
Investcorp to designate any Investor Director under Section 2.01 shall
immediately terminate, notwithstanding the Total Ownership Amount of Investcorp.
The Board may, no more than once during any six (6)-month period, replace up to
two (2) of the Persons included on the Competitor List with two other Persons;
provided, however, that no Person may be included in the Competitor List unless
the Board (by majority vote of the Non-Investor Directors) reasonably determines
that such Person is a competitor of the Company and its Subsidiaries in a
significant business line of the Company and its Subsidiaries (which, for
purposes hereof, includes the business engaged by Willtek and its Subsidiaries).
(ii) Notwithstanding anything herein to the contrary, if any member of
the Investor Group receives a "bona fide" offer (an "OFFER") from any Person set
forth on the Competitor List (the "OFFEROR") to purchase any Acquisition Shares
owned by such member of the Investor Group and such member proposes to accept
the Offer, such member of the Investor Group shall use its best efforts to
obtain from the Offeror within three (3) days, but in no event later than ten
(10) days, following the acceptance of the Offer by such member of the Investor
Group, a statement, either in writing or in electronic format, addressed to such
member of the Investor Group and signed by the Offeror (or bearing the name of
an individual duly authorized to make the Offer on behalf of the Offeror, in the
case of an electronic format) in as many counterparts as may be necessary
(collectively, the "STATEMENT") setting forth (i) the date of the Statement;
(ii) the number of Acquisition Shares covered by the Offer, the price per
Acquisition Share to be paid by the Offeror (the "OFFER PRICE") and the terms of
payment of such Offer Price; (iii) a statement that the Offer has been approved
by the Offeror's board of directors (or the equivalent if the Offeror is not a
corporation), if the Offeror is not an individual; and (iv) the Offeror's name,
address and telephone number.
(iii) Within two (2) days following the date of the Statement, such
member of the Investor Group shall give notice to the Company (the "COMPANY
NOTICE") stating that it proposes to accept the Offer and shall deliver with the
Company Notice the Statement. The Company shall thereupon have the irrevocable
and exclusive option, but not the obligation (the "OPTION"), to purchase all,
but not less than all, of the Acquisition Shares which the Offeror has proposed
to purchase from such member of the Investor Group (the "SUBJECT SHARES") for
the purchase price and on the terms set forth in Section 3.01(b)(v). The Option
shall be exercised by the Company by giving notice (the "OPTION NOTICE") to such
member of the Investor Group within ten (10) days following the date of the
Company Notice that the Company elects to exercise the Option. Upon exercise of
the Option, the Company shall have the obligation to purchase the Subject Shares
on and subject to the terms and conditions hereof. Failure by the Company to
exercise the Option or to give an Option Notice shall be deemed an election by
it not to exercise the Option.
(iv) If the Subject Shares are to be purchased by the Company pursuant
to the Option, then such purchase shall, unless the parties thereto otherwise
agree, be completed at a closing to be held at the principal office of the
Company at 10:00 a.m., New York City time, on the tenth (10th) Business Day
following the exercise of the Option. If the Option is not exercised pursuant to
this Section 3.01(b), such member of the Investor Group shall be entitled to
Transfer, subject to the provisions of Sections 3.01(a) hereof, at any time
during the 120-day period
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following the date on which the Company shall have elected not to purchase the
Acquisition Shares pursuant to the Option (or shall have failed to exercise the
Option within the time period set forth therein), all, but not less than all, of
the Subject Shares to the Offeror for a purchase price that is no less than the
Offer Price and upon terms that, in the aggregate, are no more favorable to the
Offeror than those stated in the Offer. For purposes of clarification and
notwithstanding anything herein to the contrary, such Offeror shall not under
any circumstances be deemed to be a member of the Investor Group upon purchase
of any Acquisition Shares and, accordingly, such Offeror shall not be entitled
under any circumstances to any of the rights to which a member of the Investor
Group may be entitled under this Agreement, including, without limitation, the
provisions of Section 2.01 hereof. If the Subject Shares are not purchased by
the Offeror within such 120-day period, the provisions in this Section 3.01(b)
shall again become effective, and no Transfer of such Subject Shares otherwise
permitted by this Agreement may thereafter be made to any Person set forth on
the Competitor List without again being subject to the provisions of this
Section 3.01(b).
(v) The purchase price for any Subject Shares sold pursuant to the
Option shall be an amount equal to the Offer Price. The purchase and sale shall
otherwise be on the applicable terms and conditions of the Offer. The full
amount of the purchase price for any Subject Shares purchased by the Company
pursuant to this Section 3.01(b) shall be paid in full in cash, or by certified
or cashier's check, at the closing described in Section 3.01(b)(iv). In the
event that the Offer involved provides for payment for any of the Subject
Shares, in whole or in part, by means of any consideration other than cash, the
Company may purchase the Subject Shares for such consideration, if reasonably
available to the Company, or if not, for its cash equivalent. The cash
equivalent of such consideration shall be fixed by a competent independent
appraiser mutually selected by the Company and the member of the Investor Group
to whom the Offer is addressed, and such parties shall instruct such independent
appraiser to conduct an appraisal as promptly as practicable, provided that any
such appraisal shall not delay the 10-day period referred to in Section
3.01(b)(iii). In the event the Company and such member of the Investor Group
cannot select a mutually acceptable appraiser, each shall select a competent,
independent appraiser, which appraisers shall then select a third competent,
independent appraiser, whose determination as to value shall be conclusive and
binding on the parties.
(c) Notwithstanding anything in this Agreement to the contrary, any member
of the Investor Group may Transfer shares of Common Stock pursuant to (i) any
merger, consolidation or other transaction which has been approved by the Board
and the shareholders of the Company or (ii) any tender offer or exchange offer
made by the Company.
(d) All Transfers of Acquisition Shares by the Investor Group shall be made
(i) in accordance with Rule 144, (ii) pursuant to an effective registration
statement under the Securities Act or (iii) in a transaction exempt from the
registration requirements of the Securities Act and applicable state securities
or "blue sky" laws.
SECTION 3.02. Legends. (a) Except as set forth in Section 3.02(b), all
certificates representing Acquisition Shares Beneficially Owned by the Investor
Group shall bear an appropriate restrictive legend indicating that such
Acquisition Shares are subject to restrictions pursuant to this Agreement and
that such shares were not issued pursuant to a public offering registered
pursuant to the Securities Act.
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(b) Prior to any Transfer or proposed Transfer of Beneficial Ownership by
any members of the Investor Group of any Acquisition Shares to any Person (other
than pursuant to an effective Demand Registration Statement filed by the Company
pursuant to Article IV hereof), such member shall give written notice to the
Company of its intention to effect such Transfer. Each such notice shall
describe the manner of the proposed Transfer and, if requested by the Company,
shall be accompanied by an opinion of counsel reasonably satisfactory to the
Company (it being agreed and acknowledged that Linklaters Oppenhoff & Xxxxxx is
satisfactory counsel) to the effect that the proposed Transfer may be effected
pursuant to a then-effective Registration Statement or without registration
under the Securities Act and any applicable state securities laws, whereupon,
subject to the provisions of Section 3.01, such member shall be entitled to
Transfer such stock in accordance with the terms of its notice. Each certificate
for Acquisition Shares transferred as above provided shall bear the legends
provided in Section 3.02(a), except that such certificate shall not bear such
legends as they relate to the Securities Act if (i) such transfer is made under
an effective Registration Statement or in accordance with the provisions of Rule
144 (or any other rule permitting public sale without registration under the
Securities Act) or (ii) the opinion of counsel referred to above is to the
further effect that the transferee and any subsequent transferee (other than an
Affiliate of the Company) would be entitled to Transfer such securities in a
public sale without registration under the Securities Act.
ARTICLE IV
REGISTRATION RIGHTS
SECTION 4.01. Demand Registration. (a) During the period commencing on the
first (1st) anniversary of the Closing Date and expiring on the date on which
the Company's obligations under this Section 4.01 shall terminate in accordance
with the provisions of Section 4.01(f) below (such period, the "DEMAND PERIOD"),
Holders of not less than 25% of the Registrable Securities may make a written
request to the Company (which request shall specify the Registrable Securities
intended to be disposed of by such Persons and the intended method of
distribution thereof) that the Company register any and all of the Registrable
Securities requested to be so registered by filing with the SEC a Registration
Statement covering such Registrable Securities (a "DEMAND REGISTRATION
STATEMENT"). Upon the receipt of such a request, the Company shall promptly
notify all Holders from whom notice has not been received, and such Holders
shall then be entitled within ten (10) days thereafter to request the Company to
include in such Demand Registration Statement all or any portion of their
Registrable Securities. Not later than the forty-fifth (45th) day after the
earlier of (i) the expiration of such 10-day period and (ii) the date on which
all Holders have indicated their intention to have Registrable Securities held
by them included in such Demand Registration Statement, and provided the Company
is then in the Demand Period, the Company shall cause to be filed a Demand
Registration Statement providing for the registration under the Securities Act
of the Registrable Securities which the Company has been so requested to
register to the extent necessary to permit the disposition of such Registrable
Securities in accordance with the intended methods of distribution thereof
specified in such request, and shall use commercially reasonable efforts to have
such Demand Registration Statement declared effective by the SEC as soon as
practicable thereafter and to keep such Demand Registration Statement
continuously effective for a period of time necessary following the date on
which such Demand Registration Statement is declared effective for the
underwriters or Selling Holders, as applicable, to sell all the Registrable
Securities covered by such Demand Registration Statement, but in any event a
period of no more
12
than 150 days following the date on which such Demand Registration Statement is
declared effective (the "SELLING PERIOD") or such shorter period which will
terminate when all of the Registrable Securities covered by such Demand
Registration Statement have been sold pursuant thereto (including, if necessary,
by filing with the SEC a post-effective amendment or a supplement to the Demand
Registration Statement or the related prospectus or any document incorporated
therein by reference or by filing any other required document or otherwise
supplementing or amending the Demand Registration Statement, if required by the
rules, regulations or instructions applicable to the registration form used by
the Company for such Demand Registration Statement or by the Securities Act, any
state securities or "blue sky" laws, or any other rules and regulations
thereunder). The Company shall not be required to cause to be effective more
than two (2) Demand Registration Statements pursuant to this Section 4.01.
Notwithstanding the foregoing provisions, at any time that the Company is
eligible to register a primary offering of securities on Form S-3 (or its
successor Form) under the General Instructions to such Form, the Selling Holders
shall be entitled to require that either or both of the demand registrations
hereunder be effected as a shelf registration in accordance with Rule 415 under
the Securities Act (or any similar rule that may be adopted by the SEC), and the
Company shall use its commercially reasonable efforts to keep the Demand
Registration Statement effecting such shelf registration continuously effective
during the period from the date the Demand Registration Statement is declared
effective by the SEC until the earlier to occur of (i) the second (2nd)
anniversary of the effective date of such Demand Registration Statement, (ii)
following the first anniversary of the Closing Date, the first date on which all
Registrable Securities held by all members of the Investor Group represent less
than 1% of all then Outstanding Shares, or (iii) the first date on which no
member of the Investor Group is an "affiliate" of the Company as such term is
defined in Rule 144 and all Registrable Securities held by all members of the
Investor Group may be sold to the public without SEC registration in a single
transaction under Rule 144(k).
(b) Subject to the provisions of Section 4.01(e), a Demand Registration
Statement shall be deemed not to have become effective (and the related
registration shall be deemed not to have been effected) unless it has been
declared effective by the SEC; provided, however, that if, after it has been
declared effective, the offering of any Registrable Securities pursuant to such
Demand Registration Statement is interfered with by any stop order, injunction
or other order or requirement of the SEC or any other governmental agency or
court (other than any such stop order or injunction issued as a result of the
inclusion in such Demand Registration Statement of any information supplied to
the Company for inclusion therein by a Selling Holder), the Selling Period shall
be extended by that number of days during which such stop order, injunction or
other order or requirement remains in effect or is not reversed, vacated, waived
or otherwise lifted.
(c) If at any time or from time to time any Selling Holder desires to sell
Registrable Securities in an Underwritten Offering pursuant to a Demand
Registration Statement, the underwriters, including the managing underwriter,
shall be selected by the Selling Holders and shall be reasonably acceptable to
the Company.
(d) If a registration pursuant to this Section 4.01 involves an
underwritten offering of the securities being registered (an "UNDERWRITTEN
OFFERING"), which securities are to be distributed on a firm commitment basis by
or through one or more underwriters of recognized
13
standing, and the underwriter or the managing underwriter, as the case may be,
of such Underwritten Offering shall inform the Company and the Selling Holders
that, in its opinion, the amount of securities requested to be included in such
registration exceeds the amount which can be sold in such offering without
adversely affecting the distribution of the securities being offered, then the
Company will include in such registration only the amount of Registrable
Securities and other securities that the Company is so advised can be sold in
such offering; provided, however, that the amount of Registrable Securities
requested to be included in such registration that the Company is so advised can
be sold in such offering shall be allocated pro rata among the Selling Holders
on the basis of the number of Registrable Securities requested to be registered
by all Selling Holders.
(e) The Selling Holders, at any time prior to the effective date of a
Demand Registration Statement, may revoke the Demand Registration Statement,
without liability to any Holder except as may be provided under this Section
4.01(e), by providing a written notice to the Company revoking such request.
Notwithstanding the provisions of Section 4.01(b), any Demand Registration
Statement revoked by Selling Holders (whether before or after such Demand
Registration Statement has been declared effective) shall be deemed to have been
"effective" for purposes of this Agreement unless the Selling Holders, within 30
days of such revocation, reimburse the Company for all Registration Expenses
incurred by the Company in connection with the Demand Registration Statement so
revoked.
(f) The Company's obligations under this Section 4.01 shall terminate upon
the first date on which: (i) following the first anniversary of the Closing
Date, all Registrable Securities held by all members of the Investor Group
represent less than 1% of all then Outstanding Shares, or (ii) no member of the
Investor Group is an "affiliate" of the Company as such term is defined in Rule
144 (other than in situations in which the only reason no member of the Investor
Group is such an "affiliate" is the Company's breach of its obligations under
Section 2.01) and all Registrable Securities held by all members of the Investor
Group may be sold to the public without SEC registration in a single transaction
under Rule 144(k).
SECTION 4.02. Incidental Registration. (a) If during the period commencing
on the first (1st) anniversary of the Closing Date and expiring on the date on
which the Company's obligations under this Section 4.02 shall terminate in
accordance with the provisions of Section 4.02(d) below, the Company proposes to
register under the Securities Act any shares of Common Stock for sale for its
own account or for the account of any other Person, other than pursuant to
Section 4.01 (other than (i) any Registration Statement relating to any employee
benefit or similar plan or any dividend reinvestment plan, (ii) pursuant to a
Registration Statement filed in connection with an exchange offer or (iii) in
connection with a transaction subject to Rule 145 under the Securities Act), the
Company shall give written notice to each Holder at least 10 days prior to the
initial filing of a Registration Statement with the SEC pertaining thereto (an
"INCIDENTAL REGISTRATION STATEMENT") informing such Holder of its intent to file
such Incidental Registration Statement and of such Holder's rights under this
Section 4.02 to request registration of the Registrable Securities held by such
Holder. Upon the written request of any Holder made within 10 days after any
such notice is given (which request shall specify the Registrable Securities
intended to be disposed of by such Holder), the Company shall use its
commercially reasonable efforts to effect the registration under the Securities
Act of all Registrable Securities that the Company has been so requested to
register by such Holder,
14
including, if necessary, by filing with the SEC a post-effective amendment or
supplement to the Incidental Registration Statement or the related prospectus or
any document incorporated therein by reference or by filing any other required
document or otherwise supplementing or amending the Incidental Registration
Statement, if required, by the rules, regulations or instructions applicable to
the registration form used by the Company for such Incidental Registration
Statement or by the Securities Act or by any other rules and regulations
thereunder.
(b) If a registration pursuant to this Section 4.02 involves an
Underwritten Offering and the underwriter or the managing underwriter, as the
case may be, of such Underwritten Offering shall inform the Company and the
Selling Holders that, in its opinion, the amount of securities requested to be
included in such registration exceeds the amount which can be sold in such
offering without adversely affecting the distribution of the securities being
offered, then the Company will include in such registration only the amount of
Registrable Securities and other securities that the Company is so advised can
be sold in such offering; provided, however, that the Company shall be required
to include in such required registration: first, all the securities initially
proposed to be sold pursuant to such Incidental Registration Statement by the
Company, and second, the amount of Registrable Securities and other securities
requested to be included in such registration that the Company is so advised can
be sold in such offering, allocated pro rata among the Selling Holders and other
security holders of the Company requesting such registration on the basis of the
number of Registrable Securities and other securities requested to be included
by all Selling Holders and other security holders.
(c) The Company may, at any time prior to the effective date of an
Incidental Registration Statement, revoke such Incidental Registration Statement
without liability to any Holder, by providing a written notice of such
revocation to the Selling Holders.
(d) The Company's obligations under this Section 4.02 shall terminate after
the first date on which: (i) following the first anniversary of the Closing
Date, all Registrable Securities held by all members of the Investor Group
represent less than 1% of all then Outstanding Shares, or (ii) no member of the
Investor Group is an "affiliate" of the Company as such term is defined in Rule
144 (other than in situations in which the only reason no member of the Investor
Group is such an "affiliate" is the Company's breach of its obligations under
Section 2.01) and all Registrable Securities held by all members of the Investor
Group may be sold to the public without SEC registration in a single transaction
under Rule 144(k).
SECTION 4.03. Registration Expenses. The Company shall pay all Registration
Expenses in connection with each registration pursuant to Sections 4.01 and
4.02. Each Holder selling Registrable Securities pursuant to any Demand
Registration Statement or Incidental Registration Statement shall pay all
discounts and commissions payable to underwriters, selling brokers, managers or
other similar Persons, transfer taxes, if any, and all fees and disbursements of
legal counsel not included as Registration Expenses hereunder, related to the
sale or disposition of such Registrable Securities in proportions to the amount
of such Holder's Registrable Securities included in any Demand Registration
Statement or any Incidental Registration Statement as compared to all
Registrable Securities so included.
SECTION 4.04. Restrictions on Public Sale by Holders of Registrable
Securities. If requested by the underwriter or managing underwriter in any
Underwritten Offering (by the
15
Company or any other Person) of Common Stock or of any securities convertible
into or exchangeable for Common Stock, or of warrants or other securities
entitling the holder thereof to purchase Common Stock, each Holder shall agree
not to effect any public sale or distribution of Common Stock during the 30-day
period prior to, and during the 90-day period beginning on, the date of sale of
securities in connection with such Underwritten Offering.
SECTION 4.05. Registration Procedures. In connection with the obligations
of the Company pursuant to Sections 4.01 and 4.02, the Company shall use
commercially reasonable efforts to effect or cause to be effected the
registration under the Securities Act of the Registrable Securities entitled to
be included in such registration in order to permit the sale of such Registrable
Securities in accordance with their intended method or methods of distribution,
and the Company shall:
(a) (i) prepare and file a Registration Statement with the SEC (within the
time period specified in Section 4.01 in the case of a Demand Registration
Statement) which Registration Statement (x) shall be on a form selected by the
Company for which the Company qualifies, (y) shall be available for the sale or
exchange of the Registrable Securities in accordance with the intended method or
methods of distribution, and (z) shall comply as to form in all material
respects with the requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith, (ii) use commercially
reasonable efforts to cause such Registration Statement to become effective (and
remain effective in accordance with Section 4.01 in the case of a Demand
Registration Statement), and (iii) furnish to the Holders selling Registrable
Securities copies of reasonably complete drafts of all such documents proposed
to be filed (including exhibits) within a reasonable time prior to filing such
Registration Statement or any amendment thereto, and any Holder shall have the
opportunity to consent to any information pertaining solely to that Holder that
is contained therein (which consent shall not be unreasonably withheld or
delayed) and the Company shall consider in good faith such reasonable changes in
any such document as shall reasonably be requested by such Holder with respect
to such information prior to filing the Registration Statement (provided,
however, that in the case of an Incidental Registration Statement, if such
Holder does not provide such consent within ten (10) calendar days after receipt
of such information pertaining to such Holder, such Holder shall not be entitled
to have any of its Registrable Securities included in such Incidental
Registration Statement) and (iv) cause each Registration Statement and the
related prospectus and any amendment or supplement thereto, as of the effective
date of such Registration Statement, amendment or supplement (x) to comply in
all material respects with any requirements of the Securities Act and the rules
and regulations of the SEC and (y) not to contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(b) in the case of a Demand Registration Statement, subject to Section
4.05(j), prepare and file with the SEC such amendments and post-effective
amendments to each such Demand Registration Statement as may be necessary to
keep such Demand Registration Statement effective for the applicable required
period set forth herein with respect thereto; cause each prospectus forming part
of such Demand Registration Statement to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act; and comply with the provisions of the Securities Act
with respect to the disposition of all Registrable Securities covered by each
Demand Registration Statement during
16
the applicable required period in accordance with the intended method or methods
of distribution by the Selling Holders, as set forth in such Registration
Statement;
(c) furnish to each Selling Holder and to each underwriter of an
Underwritten Offering of Registrable Securities covered by such Registration
Statement, if any, without charge, as many copies of each prospectus forming
part of such Registration Statement, including each preliminary prospectus, and
any amendment or supplement thereto and such other documents as such Selling
Holder or underwriter may reasonably request in order to facilitate the public
sale or other disposition of such Registrable Securities; and subject to the
Selling Holders' compliance with the provisions of Section 4.06(b), the Company
hereby consents to the use of such prospectus, including each such preliminary
prospectus, by each such Selling Holder and underwriter, if any, in connection
with the offering and sale of such Registrable Securities;
(d) (i) use commercially reasonable efforts to register or qualify the
Registrable Securities covered by a Registration Statement, no later than the
time such Registration Statement is declared effective by the SEC, under all
applicable state securities or "blue sky" laws of such jurisdictions as each
underwriter, if any, or any Selling Holder shall reasonably request; (ii) in the
case of a Demand Registration Statement, use its commercially reasonable efforts
to cause such registration or qualification to remain effective during the
period such Demand Registration Statement is required to be kept effective; and
(iii) do any and all other acts and things which may be reasonably necessary to
enable each such underwriter, if any, and Selling Holder to consummate the
disposition in each such jurisdiction of the Registrable Securities covered by
such Registration Statement; provided, however, that the Company shall not be
required to register or qualify any Registrable Securities in any jurisdiction
if registration or qualification in such jurisdiction would subject the Company
to unreasonable burden or expense or, in the case of an Underwritten Offering,
would unreasonably delay the commencement of such Underwritten Offering; and
provided, further, that the Company shall not be obligated to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject or to
consent to be subject to general service of process (other than service of
process in connection with such registration or qualification or any sale of
Registrable Securities in connection therewith) in any such jurisdiction;
(e) advise each Selling Holder promptly (i) when a Registration Statement
has become effective and when any post-effective amendments and supplements
thereto become effective, (ii) during the period in which the securities are to
be offered and sold under an Incidental Registration Statement or, in the case
of a Demand Registration Statement, during the period in which the Company is
required hereunder to keep a Demand Registration Statement effective, of the
issuance by the SEC or any state securities authority of any stop order,
injunction or other order or requirement suspending the effectiveness of such
Registration Statement or the initiation of any proceeding for that purpose,
(iii) if, between the effective date of a Registration Statement and the closing
of any sale of Registrable Securities covered thereby pursuant to any agreement
to which the Company is a party, the representations and warranties of the
Company contained in such agreement cease to be true and correct in all material
respects or if the Company receives any notification with respect to the
suspension of the qualification of such Registrable Securities for sale in any
jurisdiction or the initiation of any proceeding for such purpose, and (iv) of
the happening of any event during the period in which the securities are to
17
be offered and sold under an Incidental Registration Statement or, in the case
of a Demand Registration Statement, during the period a Demand Registration
Statement is required hereunder to be effective as a result of which such
Registration Statement or the related prospectus contains any untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
(f) furnish counsel for each underwriter, if any, and for each Selling
Holder copies of any request by the SEC or any state securities authority for
amendments or supplements to a Registration Statement and prospectus or for
additional information;
(g) upon request, furnish to the underwriter or managing underwriter of an
Underwritten Offering of Registrable Securities, if any, without charge, at
least one signed copy of each Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits; and furnish to each Selling
Holder, without charge, at least one conformed copy of each Registration
Statement and any post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto, unless requested); (h)
cooperate with each Selling Holder and the underwriter or managing underwriter
of an Underwritten Offering of Registrable Securities, if any, to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and enable such
Registrable Securities to be in such denominations (consistent with the
provisions of the governing documents thereof) and registered in such names as
each Selling Holder or the underwriter or managing underwriter of an
Underwritten Offering of Registrable Securities, if any, may reasonably request
at least three business days prior to any sale of Registrable Securities;
(i) upon the occurrence of any event contemplated by Section 4.05(e)(iv),
during the period in which the securities are to be offered and sold under an
Incidental Registration Statement or, in the case of a Demand Registration
Statement, during the period in which a Demand Registration Statement is
required hereunder to be kept in effect, use its commercially reasonable efforts
to prepare a supplement or post-effective amendment to a Registration Statement
or the related prospectus, or any document incorporated therein as thereafter
delivered to the purchasers of the Registrable Securities covered by such
Registration Statement, such that such prospectus will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(j) in the case of an Underwritten Offering, enter into underwriting
agreements in customary form and take all other customary and appropriate
actions in order to expedite or facilitate the disposition of the Registrable
Securities covered by a Registration Statement as shall be reasonably requested
by the underwriters, and in connection therewith:
(i) make such representations and warranties to the underwriters, if any,
in form, substance and scope as are customarily made by issuers to underwriters
in similar underwritten offerings;
18
(ii) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters and the Selling Holders and which
shall in any event include customary "10b-5" negative assurances as to the
disclosures in the Demand Registration Statement and related prospectus or
prospectuses) addressed to each Selling Holder and the underwriters covering the
matters customarily covered in opinions requested in sales of securities or
underwritten offerings and such other matters as may be reasonably requested by
such underwriters and Selling Holders;
(iii) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to the
underwriters, which letters shall be customary in form and shall cover matters
of the type customarily covered in "cold comfort" letters to underwriters in
connection with primary underwritten offerings; and
(iv) deliver such customary documents and certificates as may be
reasonably requested by the managing underwriters;
(k) use its commercially reasonable efforts to cause all Registrable
Securities covered by a Registration Statement to be listed on any securities
exchange on which the Common Stock is then listed if so requested by the Selling
Holders;
(l) otherwise use commercially reasonable efforts to comply with all
applicable rules and regulations of the SEC, the NASD and the AMEX;
(m) otherwise use commercially reasonable efforts to comply with all
applicable rules and regulations of the SEC, and make available to its Selling
Holders, as soon as reasonably practicable, an earnings statement covering the
period of at least twelve (12) months, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder; and
(n) make available for inspection by any Selling Holder, any underwriter
participating in any disposition pursuant to such Registration Statement and any
attorney, accountant or other agent retained by any such seller or underwriter
(collectively, the "Inspectors"), all financial and other records, pertinent
corporate documents and properties of the Company (collectively, the "Records")
as shall be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
make available all information reasonably requested by any such Inspector in
connection with such Registration Statement. Records which the Company
determines, in good faith, to be confidential and which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless (i)
the disclosure of such Records is necessary to avoid or correct a material
misstatement or omission in the Registration Statement, (ii) the release of such
Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or (iii) the information in such Records has been made
generally available to the public. The seller of Registrable Securities agrees
by acquisition of such Registrable Securities that it will, upon learning that
disclosure of such Records is sought in a court of competent jurisdiction, give
notice to the Company and allow the Company, at the Company's expense, to
undertake appropriate action to prevent disclosure of the Records deemed
confidential.
19
SECTION 4.06. Obligations of Selling Holders. (a) Each Selling Holder
shall, as a condition to the exercise of any registration rights of such Person
provided herein, furnish to the Company such information and materials regarding
such Person, the ownership of Registrable Securities by such Person and the
proposed distribution by such Person of such Registrable Securities as the
Company may from time to time reasonably request in writing. Each Selling Holder
shall, as a condition to participating in any Underwritten Offering of
Registrable Securities, enter into such agreements as the underwriters thereof
may reasonably request from time to time. Each Selling Holder shall promptly
update in writing any information or materials provided to the Company pursuant
to this Section 4.06(a) to the extent necessary to maintain the accuracy and
completeness thereof and the Company shall promptly update any Registration
Statement to reflect such updated information. Each Selling Holder shall take
all such action as may be reasonably required by the Company to permit the
Company to comply with all applicable requirements of the Securities Act and the
Exchange Act.
(b) Promptly upon receipt of any written notice of the Company of the
happening of any event of the kind described in Section 4.05(e)(ii) or (iv),
each Selling Holder shall, and shall cause its agents to, forthwith discontinue
disposition of Registrable Securities pursuant to the affected Registration
Statement until such Person's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 4.05(i), and, if so directed by the
Company, such Person shall deliver to the Company all copies in its possession,
other than permanent file copies then in such Person's possession, of the
prospectus covering such Registrable Securities which was current at the time of
receipt of such notice. Without limiting the foregoing, each Selling Holder
shall, and shall cause its agents to, use only the current prospectus, as
amended or supplemented from time to time, that is made available to such
Selling Holder by the Company for use in connection with the disposition of such
Selling Holder's Registrable Securities.
(c) Each Selling Holder agrees that it will not effect any disposition
under any effective Registration Statement of any Acquisition Shares or other
Registrable Securities other than in accordance with the plan of distribution of
such securities described in such Registration Statement.
SECTION 4.07. Indemnification. (d) The Company shall indemnify and hold
harmless each Person who participates as an underwriter (any such Person being
an "UNDERWRITER"), each Selling Holder and their respective partners, directors,
officers and employees and each Person, if any, who controls any Selling Holder
or Underwriter within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act as follows:
(i) against any and all losses, liabilities, claims, damages,
judgments and reasonable expenses whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) pursuant to which Registrable
Securities were registered under the Securities Act, including all documents
incorporated therein by reference, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any prospectus (or any
amendment or supplement thereto) including all documents incorporated therein by
reference, or the omission or alleged omission therefrom
20
of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all losses, liabilities, claims, damages,
judgments and reasonable expenses whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, investigation or
proceeding by any governmental agency or body, commenced or threatened, or of
any other claim whatsoever based upon any such untrue or misleading statement or
omission, or any such alleged untrue or misleading statement or omission, if
such settlement is effected with the prior written consent of the Company; and
(iii) against any and all reasonable expense whatsoever, as incurred
(including, subject to Section 4.07(c), fees and disbursements of counsel)
incurred in investigating, preparing or defending against any litigation,
investigation or proceeding by any governmental agency or body, commenced or
threatened, in each case whether or not such Person is a party, or any claim
whatsoever based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, to the extent that any such expense is not paid
under subparagraph (i) or (ii) above; provided, however, that this indemnity
agreement does not apply to any Selling Holder or Underwriter with respect to
any loss, liability, claim, damage, judgment, settlement or expense to the
extent arising out of (A) any untrue statement or omission or alleged untrue
statement or omission (1) made in reliance upon and in conformity with written
information furnished to the Company by such Person expressly for use in a
Registration Statement (or any amendment thereto) or any related prospectus (or
any amendment or supplement thereto) or (2) if such untrue statement or omission
or alleged untrue statement or omission was corrected in an amended or
supplemented Registration Statement or prospectus and the Company had furnished
or made available copies thereof to the Underwriter or Selling Holder from which
the Person asserting such loss, liability, claim, damage, judgment, settlement
or expense purchased the securities that are the subject thereof prior to the
date of sale by such Underwriter or Selling Holder to such Person, or (B) the
failure of such Selling Holder to comply with its obligations set forth in
Section 4.06.
(e) Indemnification by Sellers, Underwriters, Etc. Each Selling Holder
shall jointly and severally indemnify and hold harmless the Company, each
Underwriter and the other Selling Holders, and each of their respective
partners, directors, officers and employees (including each Director and each
officer of the Company who signed the Registration Statement) and each Person,
if any, who controls the Company, any Underwriter or any other Selling Holder
within the meaning of Section 15 of the Securities Act, against any and all
losses, liabilities, claims, damages, judgments, settlements and expenses
described in the indemnity contained in Section 4.07(a)(i)-(iii) (provided that
any settlement of the type described therein is effected with the written
consent of such Selling Holder), as incurred, but only with respect to (i)
untrue statements or omissions, or alleged untrue statements or omissions, made
in a Registration Statement (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by such
Selling Holder expressly for use in such Registration Statement (or any
amendment thereto) or such prospectus (or any amendment or supplement thereto),
or (ii) third party claims arising from the failure of such Selling Holder to
comply with its obligations set forth in Section 4.06; provided, however, that
an indemnifying Selling Holder shall not be required to provide indemnification
in any amount in excess of the amount by which (x) the total price at which the
Registrable Securities sold by such
21
indemnifying Selling Holder and its affiliated indemnifying Selling Holders and
distributed to the public were offered to the public exceeds (y) the amount of
any damages which such indemnifying Selling Holder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. The Company shall be entitled, to the extent customary, to
receive indemnification and contribution from underwriters, selling brokers,
dealer managers and similar securities industry professionals participating in
the distribution, to the same extent as provided above with respect to
information so furnished in writing by such Persons specifically for inclusion
in any prospectus or Registration Statement or amendment thereto.
(f) Conduct of Indemnification Proceedings. Each indemnified party or
parties shall give reasonably prompt notice to each indemnifying party or
parties of any action or proceeding commenced against it in respect of which
indemnity may be sought hereunder, but failure so to notify an indemnifying
party or parties shall not relieve it or them from any liability which it or
they may have under this indemnity agreement, except to the extent that the
indemnifying party is materially prejudiced by such failure to give notice. If
the indemnifying party or parties so elects within a reasonable time after
receipt of such notice, the indemnifying party or parties may assume the defense
of such action or proceeding at such indemnifying party's or parties' expense
with counsel chosen by the indemnifying party or parties and approved by the
indemnified party defendant in such action or proceeding, which approval shall
not be unreasonably withheld; provided, however, that, if such indemnified party
or parties reasonably determine that a conflict of interest exists and that
therefore it is advisable for such indemnified party or parties to be
represented by separate counsel or that, upon advice of counsel, there may be
legal defenses available to it or them which are different from or in addition
to those available to the indemnifying party, then the indemnified party or
parties shall be entitled to separate counsel (limited in each jurisdiction to
one counsel for all Underwriters and another counsel for all other indemnified
parties under this Agreement) at the indemnifying party's or parties' expense.
If any indemnifying party or parties does not assume such defense, after having
received the notice referred to in the first sentence of this paragraph, the
indemnifying party or parties will pay the reasonable fees and expenses of
counsel for the indemnified party or parties (limited in each jurisdiction to
one counsel for all Underwriters and another counsel for all other indemnified
parties under this Agreement). In no event, however, will any indemnifying party
or parties be liable for any settlement effected without the written consent of
such indemnifying party or parties (which consent shall not be unreasonably
withheld or delayed). If an indemnifying party is entitled to assume, and
assumes, the defense of such action or proceeding in accordance with this
paragraph, such indemnifying party or parties shall not, except as otherwise
provided in this Section 4.07(c), be liable for any fees and expenses of counsel
for the indemnified parties incurred thereafter in connection with such action
or proceeding.
(g) Contribution. (i) In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
this Section 4.07 is for any reason held to be unenforceable or insufficient to
hold harmless by the indemnified parties although applicable in accordance with
its terms in respect of any losses, liabilities, claims, damages, judgments,
settlements and expenses suffered by an indemnified party referred to therein,
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, liabilities, claims, damages, judgments, settlements
and expenses in such proportion as is
22
appropriate to reflect the relative fault of the Company on the one hand and of
the liable Selling Holders (including, in each case, that of their respective
officers, directors, employees and agents) on the other in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages, judgments, settlements or expenses, as well as any other relevant
equitable considerations. The relative fault of the Company on the one hand and
of the liable Selling Holders (including, in each case, that of their respective
officers, directors, employees and agents) on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, on the one hand, or by or on
behalf of the Selling Holders, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, liabilities, claims, damages, judgments, settlements and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in Section 4.07(c), any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any action
or claim.
(ii) The Company and each Selling Holder agree that it would not be just
and equitable if contribution pursuant to this Section 4.07(d) were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in sub-paragraph (i) above.
Notwithstanding this Section 4.07(d), an indemnifying Selling Holder shall not
be required to contribute any amount in excess of the amount by which (A) the
total price at which the Registrable Securities sold by such indemnifying
Selling Holder and its affiliated indemnifying Selling Holders and distributed
to the public were offered to the public exceeds (B) the amount of any damages
which such indemnifying Selling Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(1) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
(iii) For purposes of this Section 4.07, each Person, if any, who controls
a Selling Holder or an Underwriter within the meaning of Section 15 of the
Securities Act shall have the same rights to contribution as such Selling Holder
or Underwriter; and each director of the Company, each officer of the Company
who signed the Registration Statement, and each Person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act, shall have the
same rights to contribution as the Company. The indemnification required by this
Section 4.07 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or Losses
are incurred and appropriate invoices or receipts therefor are presented to the
indemnifying party.
SECTION 4.08. Blackout Periods. Notwithstanding anything in this Agreement
to the contrary, the Company shall be entitled, for reasonable periods of time
not to exceed 45 consecutive days and in no event to exceed more than an
aggregate of 90 days during any 360-day period (a "BLACKOUT PERIOD"), to
postpone and delay the filing or effectiveness of any Demand Registration
Statement, or suspend the effectiveness of any Registration Statement, if a
majority of the Non-Investor Directors shall determine in their good faith
judgment that any such filing or the offering of any Registrable Securities
would (a) impede, delay or otherwise interfere with any material pending or
contemplated acquisition or divestiture, or (b) require disclosure of
23
material non-public information (other than information relating to an event
described in clause (a) above) which, if disclosed at such time, would be
detrimental to the best interests of the Company and its stockholders. Upon
written notice by the Company to each Holder of such determination, such Holder
shall keep the fact of any such notice strictly confidential, and during any
Blackout Period promptly halt any offer, sale, trading or transfer by it or any
of its subsidiaries of any Common Stock for the duration of the Blackout Period
set forth in such notice (or until such Blackout Period shall be earlier
terminated in writing by the Company) and promptly halt any use, publication,
dissemination or distribution of each prospectus included in the Registration
Statement, and any amendment or supplement thereto by it for the duration of the
Blackout Period set forth in such notice (or until such Blackout Period shall be
earlier terminated in writing by the Company) and, if so directed by the
Company, will deliver to the Company any copies then in its possession of the
prospectus covering such Registrable Securities.
SECTION 4.03. Rule 144. The Company shall timely file or furnish the
reports required to be filed or furnished by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC thereunder (or, if
the Company is not required to file such reports, it will, upon the request of
any Holder, make publicly available such necessary information for so long as
necessary to permit sales pursuant to Rule 144 under the Securities Act).
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Term, Effect of Merger, Notices. (a) Unless terminated
earlier in accordance with the provisions of this Agreement, the covenants,
agreements and obligations contained herein shall be effective from the date
hereof until the fifth (5th) anniversary of the Closing Date, or until mutually
terminated by the parties hereto, if earlier. If during the Demand Period the
Company is involved in a merger, consolidation or similar transaction in which
the Common Stock is converted or exchanged into shares of capital stock of
another Person, proper provision shall be made to cause Article IV to apply to
such shares of capital stock from and after the consummation of that
transaction, except that for purposes of Article IV, the terms "Registrable
Securities" and "Common Stock" shall mean such shares of capital stock received
in that transaction, and the calculation of "Outstanding Shares" and "Total
Ownership Amount" shall be based on the shares of capital stock received in that
transaction, in each case instead of the Common Stock.
(b) All notices, requests, permissions, waivers and other communications
hereunder shall be in writing and shall be deemed to have been duly given (a)
five (5) Business Days following sending by registered or certified mail,
postage prepaid, (b) when sent, if sent by facsimile; provided that the
facsimile transmission is promptly confirmed by telephone, (c) when delivered,
if delivered personally to the intended recipient and (d) one (1) business day
following sending by overnight delivery via a national or international courier
service and, in each case, addressed to a party at the following address for
such party:
24
If to any member of the Investor Group, to it at the following address:
Investcorp International Ltd.
Xxxxxxxxxx Xxxxx
00 Xxxxxxxxx Xxxxxx
Xxxxxx X0X 0XX
Xxxxxx Xxxxxxx
x00 (0)00 0000 0000 (phone)
x00 (0)00 0000 0000 (facsimile)
Attention: Xx. Xxxxx Xxx-Xxxxx
and
Damany Holding GmbH
Xxxxxxxxxxxxxxxx 0-0
00000 Xxxxxxxx
Xxxxxxx
x00 (0) 00 000 00 - 110 (phone)
x00 (0) 00 000 00 - 442 (facsimile)
Attention: Xx. Xxxxxxx Xxxxxx
with a copy to:
Linklaters Oppenhoff & Xxxxxx
Xxxxxxxxxxx 0
00000 Xxxxxxx
Xxxxxxx
+(49-221) 20 91 0 (phone)
x(00-000) 00 00 000 (facsimile)
Attention: Xxxxxxx X. Xxxxxx and
Carsten Flasshoff
If to the Company, at the following address:
Wireless Telecom Group Inc.
00 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxxxx Xxxxxxxx
with a copy to:
Xxxxxxxxx Traurig, LLP
The MetLife Building
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000 (phone)
Facsimile: (000) 000-0000 (facsimile)
Attention: Xxxxxx X. Xxxxx, Esq. and
Xxxxxxx X. Xxxxxxx, Esq.
25
or, in the case of any other Person who becomes a party to, or subject to, this
Agreement, to the address set forth in the written agreement executed pursuant
to Section 5.06, or to such other address as the party to whom notice is to be
given may provide in a written notice to the Company, a copy of which written
notice shall be on file with the secretary of the Company.
SECTION 5.02. Applicable Law. The laws of the State of New York, U.S.A.
shall govern the interpretation, validity and performance of the terms of this
Agreement, regardless of the law that might be applied under principles of
conflicts of laws.
SECTION 5.03. Integration. This Agreement, the Purchase Agreement, the
other Ancillary Agreements, and the documents referred to in this Agreement to
be delivered pursuant to this Agreement which form a part hereof contain the
entire understanding of the parties with respect to the subject matter hereof,
and supersede all prior agreements and understandings between the parties with
respect to the subject matter hereof.
SECTION 5.04. Descriptive Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
SECTION 5.05. Severability. The invalidity or unenforceability of any
provisions of this Agreement in any jurisdiction shall not affect the validity,
legality or enforceability of the remainder of this Agreement in such
jurisdiction or the validity, legality or enforceability of this Agreement, or
any provision hereof, in any other jurisdiction, it being intended that all
rights and obligations of the parties hereunder shall be enforceable to the
fullest extent permitted by law.
SECTION 5.06. Successors, Assigns, Transferees. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, successors and permitted assigns. Neither this
Agreement nor any right, remedy, obligation or liability arising hereunder or by
reason hereof may be assigned by any party without the prior written consent of
the other parties hereto; provided that members of the Investor Group may assign
all or a portion of their rights under Article IV to any transferee in
connection with any permitted Transfer of Common Stock to such Person if such
Common Stock constitutes "restricted securities" as defined in Rule 144 after
such Transfer; provided that such transferee, as a condition to acquiring any
such rights, execute a joinder agreement in which it shall agree to be bound by
the provisions of this Agreement to the same extent as the members of the
Investor Group and shall thereafter be deemed to be a member of the Investor
Group for all purposes of this Agreement, unless such Person does not hold any
Registrable Securities. Any purported assignment of rights under this Agreement
in violation of this Section 5.06 shall be void and of no effect.
SECTION 5.07. Defaults. A default by the Investor Group, on the one hand,
or by the Company, on the other hand, in such party's compliance with any of the
conditions or
26
covenants hereof or performance of any of the obligations of such party
hereunder shall not constitute a default by the other party.
SECTION 5.08. Amendments; Waivers. This Agreement may not be amended,
modified or supplemented and no waivers of or consents to departures from the
provisions hereof may be given unless consented to in writing by (a) in the case
of each Article other than Article IV (and the definitions attendant thereto),
Section 2.04 and this Section 5.08, (i) the Company and (ii) the Investor Group,
(b) in the case of Article IV (and the definitions attendant thereto) and this
Section 5.08, (i) the Company and (ii) the Holders, and (c) in the case of
Section 2.04, (i) the Company and (ii) Xx. Xxxxx Xxxx.
SECTION 5.09. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which, when
taken together, shall constitute one and the same Agreement.
SECTION 5.10. Specific Performance. Each of the parties hereto acknowledges
and agrees that in the event of any breach of this Agreement other than the
provisions of Article IV, the non-breaching parties would be irreparably harmed
and could not be made whole by monetary damages. The parties hereto, in addition
to any other remedy to which they may be entitled at law or in equity, shall be
entitled to seek an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically the terms and
provisions hereof without the necessity of securing or posting any bond or
providing prior notice.
SECTION 5.11. Exclusive Jurisdiction, Waiver of Jury Trial. (a) Each of the
parties irrevocably submits to the exclusive jurisdiction of the United States
District Court for the Southern District of New York, for the purposes of any
suit, action or other proceeding arising out of this Agreement, or any
transaction contemplated hereby. Each of the parties must commence any action,
suit or proceeding relating hereto either in the United States District Court
for the Southern District of New York. Service of any process, summons, notice
or document by U.S. registered mail to such party's respective address set forth
above shall be effective service of process for any action, suit or proceeding
in such court with respect to any matters to which it has submitted to
jurisdiction in this Section 5.11(a). Each of the parties irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement in the United States District Court
for the Southern District of New York, or, of such court does not have subject
matter jurisdiction, the state courts of New York located in New York County and
hereby irrevocably accepts and submits to the exclusive jurisdiction and venue
of the aforesaid courts in personam, with respect to such action, suit or
proceeding, and further irrevocably and unconditionally waives and shall not
plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
(b) Each party waives, to the fullest extent permitted by Applicable Law,
any right it may have to a trial by jury in respect of any litigation arising
out of or relating to this Agreement. Each party (i) certifies that no
representative, agent or attorney of another party has represented, expressly or
otherwise, that such other party would not, in the event of litigation, seek to
enforce the foregoing waiver and (ii) acknowledges that it has been induced to
enter into this Agreement
27
by, among other things, the mutual waivers and certifications set forth above in
this Section 5.11(b).
SECTION 5.12. Attorneys' Fees. In any action or proceeding (i) brought to
enforce any provision of this Agreement, or (ii) where any provision hereof is
validly asserted as a defense, the successful party shall be entitled to recover
reasonable attorneys' fees in addition to any other available remedy.
SECTION 5.13. Approvals. Etc. In each instance where this Agreement
requires any determination, approval, consent, or request to be made
collectively by the Investor Group, such determination, approval, consent, or
request shall be made by members of the Investor Group representing a majority
of the Common Stock Beneficially Owned by the Investor Group, unless the
Investor Group agrees upon a different methodology; provided that the Company is
notified in advance in writing of such methodology. In each instance where this
Agreement requires any determination, approval, consent, or request to be made
collectively by the Holders, such determination, approval, consent, or request
shall be made by Holders representing a majority of the Registrable Securities
Beneficially Owned by such Holders, unless the Holders agree upon a different
methodology; provided that the Company is notified in advance in writing of such
methodology. In each instance where this Agreement requires any determination,
approval, consent, or request to be made collectively by the Selling Holders,
such determination, approval, consent, or request shall be made by Selling
Holders representing a majority of the Registrable Securities requested to be
included in the applicable Registration Statement, unless the Selling Holders
agree upon a different methodology; provided that the Company is notified in
advance in writing of such methodology.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
28
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
WIRELESS TELECOM GROUP INC.,
By: /s/ Xxxx Xxxxxx
---------------
Name: Xxxx Xxxxxx
Title: President and Chief Financial Officer
INVESTCORP TECHNOLOGY VENTURES, L.P.
by ITV Limited, as General Partner of Investcorp
Technology Fund Limited Partnership, its General
Partner
By: /s/ Xxxxxxxx Xxxxx
------------------
Name: Xxxxxxxx Xxxxx
Title: Director
DAMANY HOLDING GMBH
By: /s/ Xxxxxxx Xxxxxx
------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Executive Officer
