SUNN ACQUISITION CORPORATION CONTRIBUTION AGREEMENT
Exhibit 99.2
SUNN ACQUISITION CORPORATION
THIS CONTRIBUTION AGREEMENT is made as of this 3rd day of October, 2007, by and among SUNN
Acquisition Corporation, a Delaware corporation (the “Company”), and those certain
stockholders of Suntron Corporation, a Delaware corporation (“Suntron”), who have signed
the signature pages hereto (each individually, a “Stockholder,” and collectively, the
“Stockholders”).
Recitals
A. The Stockholders, who collectively have an approximately 90.1% ownership interest in
Suntron, desire to contribute to the Company all of their respective shares of common stock of
Suntron as of the date hereof in consideration for proportionate shares of the common stock, par
value $.001 per share, of the Company.
B. Following the contribution by the Stockholders of their shares of Suntron common stock
pursuant to this Agreement, the Company will own more than 90% of Suntron’s outstanding shares.
C. The Stockholders intend to cause the Company to merge with and into Suntron in a short-form
merger under Section 253 of the Delaware General Corporation Law (the “Merger”), pursuant
to which (i) the stockholders of Suntron (other than the Company) will receive cash in exchange for
their Suntron shares, (ii) the Stockholders of the Company will receive shares of Suntron as the
surviving corporation, and (iii) the Stockholders will own 100% of Suntron immediately following
the Merger; and each of the Stockholders desire to evidence herein their unanimous consent to and
approval of the Merger.
Agreement
NOW THEREFORE, in consideration of the mutual covenants contained in this Agreement, the
parties hereto agree as follows:
1. Interpretation of this Agreement.
(a) Terms Defined. As used in this Agreement, the following terms when used in this
Agreement have the meanings set forth below:
“Affiliate” has the meaning set forth in Rule 12b-2 of the regulations promulgated
under the Securities Exchange Act of 1934, as amended.
“Agreement” means this Contribution Agreement and all exhibits and schedules hereto,
as amended, modified or supplemented from time to time.
“Xxxx” shall have the meaning given to it in Section 4(c)(i) of this Agreement.
“Common Stock” means the Company’s common stock, par value $.001 per share.
“Company” shall have the meaning given to it in the first sentence of this Agreement.
“Company Information” means Confidential Information and Trade Secrets.
“Confidential Information” means confidential data and confidential information
(whether or not specifically labeled or identified as “confidential”), in any form or medium,
relating to the business, products or services of the Company or its Subsidiaries (which does not
rise to the status of a Trade Secret under applicable law) which is or has been disclosed to any
Stockholder or any of its Affiliates as a
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consequence of or through its, his or her employment with or ownership of the Company or any
of its Subsidiaries and which has value to the Company or its Subsidiaries and is not generally
known to the competitors of the Company. Confidential Information includes, but is not limited to,
the following: (i) internal business information (including information relating to strategic and
staffing plans and practices, business, training, marketing, promotional and sales plans and
practices, cost, rate and pricing structures and accounting and business methods), (ii) identities
of, individual requirements of, specific contractual arrangements with, and information about, the
suppliers, distributors, customers, independent contractors or other business relations of the
Company or its Subsidiaries and their confidential information, (iii) trade secrets, know-how,
compilations of data and analyses, techniques, systems, research, records, reports, manuals,
documentation, data and data bases relating thereto and (iv) inventions, innovations, improvements,
developments, methods, designs, analyses, drawings, reports and all similar or related information
(whether or not patentable). Notwithstanding the foregoing, Confidential Information shall not
include any data or information that (i) has been voluntarily disclosed to the general public by
the Company or its Subsidiaries, (ii) has been independently developed and disclosed to the general
public by others, or (iii) otherwise enters the public domain through lawful means.
“Contributed Shares” shall have the meaning given to it in Section 2(a) of
this Agreement.
“Merger” shall have the meaning given to it in the recitals to this Agreement.
“Person” means an individual, a partnership, a corporation, a limited liability
company, an association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political subdivision thereof.
“Securities Act” means the Securities Act of 1933, as amended.
“Shares” shall have the meaning given to it in Section 2(b) of this Agreement.
“Stockholders” shall have the meaning given to it in the first sentence of this
Agreement.
“Stockholders’ Agreement” shall have the meaning given to it in Section 4 of
this Agreement.
“Subsidiary” when used with respect to any Person means any other Person, whether
incorporated or unincorporated, of which (a) more than 50% of the securities or other ownership
interests or (b) securities or other interests having by their terms ordinary voting power to elect
more than 50% of the board of directors or others performing similar functions with respect to such
corporation or other organization, is directly owned or controlled by such Person or by any one or
more of its Subsidiaries.
“Suntron” shall have the meaning given to it in the first sentence of this Agreement.
“Xxxxxx” shall have the meaning given to it in Section 4(c)(i) of this Agreement.
“Xxxxxx-Xxxx” means Xxxxxx-Xxxx Funding III, L.L.C., a Delaware limited liability
company.
“Trade Secrets” means information of the Company and its Subsidiary including, but not
limited to, technical or nontechnical data, formulas, patterns, compilations, programs, financial
data, financial plans, product or service plans or lists of actual or potential customers or
suppliers which (i) derives economic value, actual or potential, from not being generally known to,
and not being readily ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
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(b) Interpretation. Wherever from the context it appears appropriate, each term
stated in either the singular or plural shall include the singular and the plural, and pronouns
stated in masculine, feminine or neuter gender shall include the masculine, feminine and the
neuter.
2. Contribution of Suntron Shares; Issuance of Shares; Consent to Merger.
(a) Contribution of Suntron Shares. Subject to Section 5 below, each
Stockholder hereby contributes, assigns and transfers to the Company, and the Company hereby
accepts, all of such Stockholder’s capital stock in Suntron as set forth opposite such
Stockholder’s name on Exhibit A hereto (the “Contributed Shares”), as of the date
hereof, free and clear of all liens, claims, encumbrances and restrictions of any kind whatsoever.
(b) Issuance of Shares. In consideration for each Stockholders’ contribution of the
Contributed Shares to the Company pursuant to Section 2(a), the Company hereby issues to
each Stockholder the shares of Common Stock (the “Shares”) as set forth opposite such
Stockholder’s name on Exhibit A hereto, free and clear of any liens, claims, encumbrances
and restrictions of any kind whatsoever.
(c) Consent to the Merger. Each of the Stockholders, as evidenced by his, her or its
signature hereto, in lieu of a special meeting of the stockholders of the Company, does hereby
consent to and approve (i) the Merger, (ii) the execution, delivery and performance by the Company
of a Certificate of Ownership and Merger, in substantially the form attached hereto as Exhibit
B, and (iii) the other transactions contemplated therein.
(d) Representations and Warranties of the Company. The Company hereby represents and
warrants to the Stockholders as follows:
(i) Organization; Power and Authority. The Company is a corporation duly organized,
validly existing, and in good standing under the laws of State of Delaware. The Company has full
corporate power and authority to carry on the business in which it is engaged and to own and use
the properties owned and used by it. Before giving effect to the transactions contemplated herein,
the Company does not have any Subsidiaries, and does not own, directly or indirectly, any capital
stock or other equity interests in any other Person.
(ii) Authorization of Transaction; Agreement Binding. The Company has full corporate
power and authority to execute and deliver, and to perform its obligations under, this Agreement.
This Agreement constitutes the valid and legally binding obligation of the Company, enforceable in
accordance with its terms, except as such enforcement may be limited by general equitable
principles or by applicable bankruptcy, insolvency or similar laws which affect creditors’ rights
generally.
(iii) Capitalization. The Company’s authorized capital stock consists of 3,000,000
shares of Common Stock, of which 2,489,275 shares will be issued and outstanding immediately after
the consummation of the transactions contemplated herein. Upon the Closing, the Shares acquired by
the Stockholders pursuant to the provisions of this Agreement will be duly authorized, validly
issued, fully paid and nonassessable. The Company has made available to the Stockholders true and
correct copies of the Company’s Certificate of Incorporation and Bylaws. Other than the
Stockholders, there will be no other holders of Common Stock immediately after the consummation of
the transactions contemplated herein.
(iv) No Conflict. The execution, delivery and performance of this Agreement by the
Company do not and will not violate, conflict with, or result in a breach of or default under (A)
the Company’s Certificate of Incorporation or Bylaws; (B) any applicable law, order, judgment or
decree; or (C) any agreement, contract, understanding, mortgage, indenture or other obligation to
which the Company is a party or by which any of its assets or properties are bound.
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(e) Representations and Warranties of the Stockholders. Each Stockholder hereby
represents and warrants to the Company as follows:
(i) State Securities Laws. Such Stockholder intends that the laws of the State of
Delaware govern the offering of the Shares to such Stockholder.
(ii) Capacity. Such Stockholder has full capacity to execute and deliver, and to
perform such Stockholder’s obligations under, this Agreement.
(iii) Agreement Binding. This Agreement constitutes the valid and legally binding
obligation of the Stockholder, enforceable in accordance with its terms.
(iv) Acquisition for Investment. Such Stockholder is acquiring the Shares for
investment solely for the Stockholder’s account and not with a view to or for sale in connection
with any distribution thereof in violation of the federal securities laws, applicable state
securities laws or this Agreement.
(v) Accredited Investor. Such Stockholder (i) is an “accredited investor” within the
meaning of Rule 501 promulgated under the Securities Act, (ii) has such knowledge and experience in
financial and business matters that he or it is capable of evaluating the merits and risks of the
purchase of the Shares, and (iii) has consulted with counsel and other advisors before committing
to acquire the Shares.
(vi) Restrictions on Transfer. Such Stockholder understands that such Stockholder
must bear the economic risk of the purchase of the Shares for an indefinite period of time because,
except as provided in this Agreement, (A) the Company’s sale of the Shares to such Stockholder will
not be registered under the Securities Act and applicable state securities laws in reliance on such
Stockholder’s representations, (B) the Shares may not be sold, transferred, pledged, or otherwise
disposed of without an opinion of counsel, if requested, for or satisfactory to the Company that
registration under the Securities Act or any applicable state securities laws is not required, (C)
except as otherwise set forth herein, the Company does not have an obligation to register a sale of
the Shares (or perfect any exemption) nor has it agreed to do so in the future, and (D) the
exemption provided in Rule 144 under the Securities Act is not presently available for the resale
of any of the Shares and it is unlikely that such exemption will be available at any time in the
future with respect to any proposed transfer of the Shares, and (E) the Company is not under any
obligation to perfect any exemption for the resale of any of the Shares. Such Stockholder also
acknowledges such Stockholder’s understanding that transfers of the Shares will be subject to the
limitations set forth elsewhere in this Agreement.
(vii) Restrictive Legends. Such Stockholder understands that the certificate(s)
evidencing the Shares will bear a restrictive legend prohibiting the transfer thereof except in
compliance with (A) applicable state and federal securities laws (and may not be transferred of
record except in compliance therewith), and (B) the terms of this Agreement.
(viii) Opportunity to Ask Questions. Such Stockholder has had an opportunity to ask
questions and receive answers concerning the capitalization of the Company, the terms of this
Agreement and the financial condition and operations of the Company, Suntron and its Subsidiaries,
and has had full access to such other information concerning the Company, Suntron and its
Subsidiaries as such Stockholder has requested.
(ix) Certain Risk Factors. Such Stockholder has reviewed, or has had an opportunity
to review, copies of all documents entered into in connection with the Merger, including without
limitation, the Certificate of Ownership and Merger pursuant to which the Merger will be
accomplished and the Schedule 13e-3 describing the Merger (including exhibits and schedules
thereto) and the related closing documents, and such Stockholder is familiar with the terms of the
Merger. Such Stockholder also reviewed or has had an opportunity to review, (A) the Company’s
Certificate of
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Incorporation and Bylaws, (B) Suntron’s filings with the SEC, and (C) such other documents and
information requested by such Stockholder to such Stockholder’s satisfaction. Such Stockholder
understands the speculative nature of and risks involved in the proposed investment in the Company,
the Merger, and all matters relating to the structure and the operations of Suntron have been
discussed and explained to such Stockholder’s satisfaction.
Such Stockholder specifically acknowledges such Stockholder’s understanding that:
(A) Suntron has incurred substantial debt and the Company will incur additional debt (which
will be transferred to Suntron pursuant to the Merger) to finance the Merger, and the presence of
substantial amounts of debt creates significant risks, including that (1) although equity
investments in highly leveraged companies such as Suntron offer the opportunity for significant
capital appreciation, such investments involve the highest degree of risks and can result in the
loss of such Stockholder’s entire investment, (2) other general business risks, including the
effects of a recession or a downturn in the electronics industry, may have a more pronounced
effect, (3) lending institutions may have rights to participate in certain decisions relating to
the management of Suntron, and (4) for Suntron’s debt to be repaid and for such Stockholder’s
investment in the Shares to have any value, Suntron must achieve significant growth in financial
performance;
(B) such Stockholder (in the case of Stockholders other than Xxxxxx-Xxxx), as a minority
stockholder in the Company or, following the Merger, Suntron will have limited control over or
influence in the management of Suntron;
(C) the Company is currently seeking financing to complete the Merger, such financing may or
may not be on terms as favorable as Suntron’s existing debt, and if such financing is not obtained
on terms acceptable to the Company, then the Merger will not be completed;
(D) Xxxxxx-Xxxx will (1) receive from the Company and, following the Merger, Suntron, an
annual management fee of $750,000, pursuant to a Management and Consulting Agreement, a copy of
which has been made available to such Stockholder, and (2) receive certain other fees for future
acquisition, disposition and/or financing transactions;
(E) the Company and, following the Merger, Suntron has incurred and will incur significant
expenses in connection with the Merger and the financing thereof; and
(F) Xxxxxx and Xxxx will have the power to designate the Company’s directors, and will
therefore be able to control the direction and future operations of the Company.
(x) Reliance. Such Stockholder has discussed with, and relied upon the advice of, the
Stockholder’s counsel with regard to the meaning and legal consequences of the Stockholder’s
representations and warranties in this Agreement and the considerations involved in making an
investment in the Company.
(y) Title to Contributed Shares. Such Stockholder owns the Contributed Shares set
forth opposite such Stockholder’s name on Exhibit A hereto, free and clear of any liens,
claims, encumbrances and restrictions of any kind whatsoever.
(f) Tax Certifications and Acknowledgments. Each Stockholder certifies under penalty
of perjury that (i) the Stockholder is not subject to backup withholding either because the
Stockholder has not been notified that the Stockholder is subject to backup withholding as a result
of a failure to report all interest or dividends or because the Internal Revenue Service has
notified the Stockholder that the Stockholder is no longer subject to backup withholding and (ii)
the Stockholder is not a nonresident alien, foreign partnership, foreign trust or foreign estate.
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3. Confidentiality. Except as required by applicable law (including regulations
promulgated thereunder) or court order, each Stockholder (i) will maintain the confidentiality of
all Company Information, and (ii) will not, directly or indirectly, use, disseminate or otherwise
disclose any Company Information to any third party without the prior written consent of the
Company, which may be withheld in the Company’s absolute discretion. The provisions of this
Section 3 shall survive the termination of this Agreement (i) for a period of two years
with respect to Confidential Information, and (ii) with respect to Trade Secrets, for so long as
any such information qualifies as a Trade Secret under applicable law.
4. Execution and Delivery of a Stockholders’ Agreement.
Each of the Stockholders agrees that following the completion of the Merger, such Stockholder
shall enter into a stockholders’ agreement (the “Stockholders’ Agreement”) with each other
and with the other stockholders of Suntron following the Merger, which agreement shall provide for
the following, among other things:
(a) Board Composition. The board of directors of Suntron shall consist of up to
eleven (11) directors to be mutually agreed upon by Xxxxxx and Xxxx. Notwithstanding the initial
composition of the board, Xxxxxx shall always have the right to nominate, elect and replace four
(4) directors; Xxxx shall always have the right to nominate, elect and replace two (2) directors;
the Chief Executive Officer and the Chief Financial Officer of Suntron shall be directors; and
three (3) directors at any time shall be independent of Suntron, Xxxxxx and Xxxx and shall be
nominated jointly by Xxxxxx and Xxxx.
(b) Registration Rights Agreements. Following the execution of the Stockholders’
Agreement, all existing registration rights agreements relating to Suntron shall terminate and the
Stockholders’ Agreement shall provide that in the event of a future registered public offering of
Suntron, Xxxxxx shall have three (3) demand registration rights, Xxxx shall have two (2) demand
registration rights and each Stockholder shall have customary piggyback registration rights.
(c) Other Customary Provisions. The Stockholders’ Agreement shall also provide for
mutually agreeable governance provisions, transfer restrictions and other minority stockholder
protections that are consistent with the following:
(i) Transfer Restrictions: The Stockholders will be subject to transfer restrictions
consistent in all material respects with the terms of the First Amended and Restated Limited
Liability Company Agreement of Xxxxxx-XXXX Funding III, L.L.C., dated as of February 27, 2002 (the
“LLC Agreement”), by and among Xxxxxx Equity Investors IV, L.P. and its Affiliates, including TC
Manufacturing Holdings, L.L.C. and TC KCo, L.L.C. (collectively, “Xxxxxx”) and Xxxx
Strategic Partners, L.P. and its Affiliates, including XXXX (K*TEC) Co-Investment Partners, L.P.
(collectively, “Xxxx”), provided that in no event shall a Stockholder have a consent right
to the transfer of Suntron shares by another Stockholder who has complied with the terms of
applicable transfer restrictions provided in the Stockholders’ Agreement.
(ii) Preemptive Rights: The Stockholders will have preemptive rights with respect to
any future securities issued by Suntron in order to maintain their proportionate ownership, subject
to customary exceptions.
(iii) Xxxxxx and Xxxx Consents. The following actions by Suntron will require the
consent of both Xxxxxx and Xxxx:
(A) Related party transactions, including but not limited to, any change in the
management fees payable by Suntron to Xxxxxx and Xxxx pursuant to the current
Management and Consulting Agreement, which will remain in place;
(B) Amendment to the organizational documents of Suntron;
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(C) Issuances of Suntron securities, subject to customary exceptions;
(D) Liquidation or dissolution of Suntron; and
(E) Change to the number of directors.
(iv) Termination. Other than with respect to the registration rights to be provided
for in the Stockholders’ Agreement, the Stockholders’ Agreement shall terminate upon the closing of
a future registered public offering of common stock of Suntron.
5. Dissolution; Return of Contributed Shares. If the Merger is not completed by March
31, 2008, then promptly thereafter the Stockholders shall take all actions necessary to cause the
Corporation to be dissolved and the Contributed Shares to be returned to the Stockholders, with
each Stockholder receiving the number of Contributed Shares set forth opposite such Stockholder’s
name on Exhibit A hereto.
6. Restrictions on Transfer. Prior to the execution and delivery of the Stockholders’
Agreement by the Stockholders pursuant to Section 4, no Stockholder may sell, transfer, or
convey any Shares, other than (i) to any Subsidiary and/or Affiliate of a Stockholder, (ii)
pursuant to the Merger, or (iii) upon the death of a Stockholder to his or her executors or
administrators or legal successors, including without limitation trustees, provided that such
permitted transferees agree in writing to be bound by this Agreement as if they had executed and
delivered this Agreement as “Stockholders”.
7. Notices. All notices, requests, demands, claims and other communications hereunder
will be in writing. Any notice, request, demand, claim or other communication hereunder shall be
deemed duly given if (and then two business days after) it is sent by registered or certified mail,
return receipt requested, postage prepaid, and addressed to the intended recipient as set forth
below:
(a) If to Suntron:
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx Xxxxx, President and Chief Executive Officer
Facsimile: (000) 000-0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx Xxxxx, President and Chief Executive Officer
Facsimile: (000) 000-0000
with copies to:
Xxxxxxxxx Xxxxxxx, LLP
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
(b) If to Xxxxxx-Xxxx or the Company:
c/x Xxxxxx Capital Partners
0000 Xxxxxxxxxxxx Xxx. X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxx
Facsimile: (000) 000-0000
0000 Xxxxxxxxxxxx Xxx. X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxx
Facsimile: (000) 000-0000
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with copies to:
c/o Blum Capital Partners
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxx
Facsimile: (000) 000-0000
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxx
Facsimile: (000) 000-0000
(c) If to any other Stockholder or any holder(s) of Restricted Securities, to the address of
such Stockholder set forth on the signature page hereto.
Any party hereto may send any notice, request, demand, claim or other communication hereunder
to the intended recipient at the address set forth above using any other means (including personal
delivery, expedited courier, messenger service, telecopy, telex, ordinary mail or electronic mail),
but no such notice, request, demand, claim or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any party hereto may
change the address to which notices, requests, demands, claims and other communications hereunder
are to be delivered by giving the other party notice in the manner herein set forth.
8. Severability. Whenever possible, each provision of this Agreement will be interpreted
in such manner as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law
or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any
other provision or any other jurisdiction, but this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been
contained in this Agreement.
9. Complete Agreement. This Agreement embodies the complete agreement and understanding
among the parties and supersedes and preempts any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related to the subject
matter of this Agreement in any way.
10. Counterparts. This Agreement may be executed on separate counterparts, each of which
is deemed to be an original and all of which taken together constitute one and the same agreement.
Any telecopied signature shall be deemed a manually executed and delivered original.
11. Successors and Assigns. This Agreement is intended to bind and inure to the benefit
of and be enforceable by the Stockholders, the Company, and their respective successors and assigns
(including subsequent holders of the Restricted Securities) and, where applicable, heirs and
personal representatives.
12. Choice of Law; Jurisdiction. This Agreement shall be governed and construed in
accordance with the laws of the state of Delaware without regard to conflicts of laws principles
thereof and all questions concerning the validity and construction of this Agreement shall be
determined in accordance with the laws of such state. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION LOCATED IN THE
STATE OF DELAWARE IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND
HEREBY IRREVOCABLY AGREES, ON BEHALF OF ITSELF AND ON BEHALF OF SUCH PARTY’S SUCCESSOR’S AND
ASSIGNS, THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY
SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION SUCH PERSON MAY NOW OR HEREAFTER HAVE AS TO THE
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM.
13. Waiver of Jury Trial. THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER IN
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TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS
AGREEMENT, THE RELATED DOCUMENTS OR THE RELATIONSHIP ESTABLISHED UNDER THIS AGREEMENT.
14. Remedies. Each of the parties to this Agreement will be entitled to enforce its
rights under this Agreement specifically, to recover damages by reason of any breach of any
provision of this Agreement and to exercise all other rights existing in its favor. The parties
hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that any party may in its sole discretion apply to any court of
law or equity of competent jurisdiction for specific performance and/or injunctive relief in order
to enforce or prevent any violations of the provisions of this Agreement.
15. Amendments and Waivers. No provision of this Agreement may be amended or waived
without the prior written consent or agreement of the Stockholders and the Company.
16. Business Days. Whenever the terms of this Agreement call for the performance of a
specific act on a specified date, which date falls on a Saturday, Sunday or legal holiday, the date
for the performance of such act shall be postponed to the next succeeding regular business day
following such Saturday, Sunday or legal holiday.
17. No Third Party Beneficiary. Except for the parties to this Agreement and their
respective successors and assigns, nothing expressed or implied in this Agreement is intended, or
will be construed, to confer upon or give any person other than the parties hereto and their
respective successors and assigns any rights or remedies under or by reason of this Agreement.
18. Attorneys’ Fees. In the event any suit or other legal proceeding is brought for the
enforcement of any of the provisions of this Agreement, the parties hereto agree that the
prevailing party or parties shall be entitled to recover from the other party or parties upon final
judgment on the merits reasonable attorneys’ fees (and sales taxes thereon, if any), including
attorneys’ fees for any appeal, and costs incurred in bringing such suit or proceeding.
[SIGNATURES BEGIN ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, intending to be legally bound hereby, each of the undersigned has duly
executed and delivered this Contribution Agreement as of the day and year first above written.
| SUNN ACQUISITION CORPORATION |
||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | President | |||
| Address: | c/x Xxxxxx Capital Partners | |||
| 0000 Xxxxxxxxxxxx Xxx. X.X. | ||||
| Xxxxx 000 | ||||
| Xxxxxxxxxx, X.X. 00000 |
| XXXXXX-XXXX FUNDING III, L.L.C., a Delaware limited liability company |
||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Manager | |||
| Address: | c/x Xxxxxx Capital Partners | |||
| 0000 Xxxxxxxxxxxx Xxx. X.X. | ||||
| Xxxxx 000 | ||||
| Xxxxxxxxxx, X.X. 00000 |
| CIRCUIT TEST INTL GRIT LP |
||||
| By: | XXXXX X. XXXXXXXX XX. INVESTMENT CORPORATION, its general partner | |||
| By: | /s/ Xxxxx X. Xxxxxxxx Xx. | |||
| Name: | Xxxxx X. Xxxxxxxx Xx. | |||
| Title: | President | |||
| Address: | 0 Xxxxxxxxxx Xx. | |||
| Xxxxxxxxx, XX 00000 |
| XXXXX X XXXXXXXX XX LP |
||||
| By: | XXXXX X. XXXXXXXX XX. LIVING TRUST, its general partner | |||
| By: | /s/ Xxxxx X. Xxxxxxxx Xx. | |||
| Name: | Xxxxx X. Xxxxxxxx Xx. | |||
| Title: | Trustee | |||
| Address: | 0 Xxxxxxxxxx Xx. | |||
| Xxxxxxxxx, XX 00000 |
| XXXXXXXX GIFTING TRUST |
||||
| By: | /s/ Xxxxxxx Xxxxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxxxx | |||
| Title: | Trustee | |||
| Address: | 0 Xxxxxxxxxx Xx. | |||
| Xxxxxxxxx, XX 00000 |
| ALLEE L XXXXXXXX & XXXXX X XXXXXXXX XX JT TEN |
||||
| /s/ Xxxxx X. Xxxxxxxx Xx. | ||||
| Xxxxx X. Xxxxxxxx Xx. | ||||
| /s/ Allee X. Xxxxxxxx | ||||
| Allee X. Xxxxxxxx | ||||
| Address: | 0 Xxxxxxxxxx Xx. | |||
| Xxxxxxxxx, XX 00000 |
| XXXXX X XXXXXXXX III & XXXXX X XXXXXXXX XX JT TEN |
||||
| /s/ Xxxxx X. Xxxxxxxx Xx. | ||||
| Xxxxx X. Xxxxxxxx Xx. | ||||
| /s/ Xxxxx X. Xxxxxxxx III | ||||
| Xxxxx X. Xxxxxxxx III | ||||
| Address: | 0 Xxxxxxxxxx Xx. | |||
| Xxxxxxxxx, XX 00000 |
| XXXXX X XXXXXXXX XX CUST XXXXXXXXX XXXXXXXX UTMA CO |
||||
| By: | /s/ Xxxxx X. Xxxxxxxx Xx. | |||
| Name: | Xxxxx X. Xxxxxxxx Xx. | |||
| Title: | Custodian | |||
| Address: | 0 Xxxxxxxxxx Xx. | |||
| Xxxxxxxxx, XX 00000 |
| XXXXXXX X XXXXXXX TR UA DTD 10-17- 86 XXXXXX XXX XXXXXXX XX I |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxxx X. Xxxxxxx, Trustee | ||||
| Address: | 0000 Xxxxxx Xxxxx | |||
| Xxxxxxx, XX 00000 |
| XXXXXXX X XXXXXXX TR UA DTD 04-20- 86 XXXXXXX XXXXXX TR I |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxxx X. Xxxxxxx, Trustee | ||||
| Address: | 0000 Xxxxxx Xxxxx | |||
| Xxxxxxx, XX 00000 |
| XXXXXXX X XXXXXXX TR UA DTD 09-15- 91 STERLING XXXXXXX XXXXXXX TR I |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxxx X. Xxxxxxx, Trustee | ||||
| Address: | 0000 Xxxxxx Xxxxx | |||
| Xxxxxxx, XX 00000 |
| XXXXXXX FAMILY LIMITED PARTNERSHIP I |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxxx X. Xxxxxxx, its general partner | ||||
| Address: | 0000 Xxxxxx Xxxxx | |||
| Xxxxxxx, XX 00000 |
| /s/ Xxxx Xxxxxxx | ||||
| Xxxx Xxxxxxx | ||||
| Address: | 000 Xxx Xxxxxx | |||
| Xxxxx, XX 00000 |
