Exhibit 10.2
INITIAL PUBLIC OFFERING AND DISTRIBUTION AGREEMENT
This INITIAL PUBLIC OFFERING AND DISTRIBUTION AGREEMENT (the
"Agreement") is made and entered into as of June , 2000, by and between Methode
Electronics, Inc., a Delaware corporation ("Methode"), and Stratos Lightwave,
Inc., a Delaware corporation and a wholly-owned subsidiary of Methode
("Stratos"). Capitalized terms used and not otherwise defined herein are defined
in Article 1 of this Agreement.
RECITALS
WHEREAS, Methode and Stratos have entered into that certain Master
Separation Agreement, dated as of May 28, 2000 (the "Master Separation
Agreement"), pursuant to which, among other things, Methode has contributed and
transferred to Stratos, all of the capital stock and equity interests held by
Methode in subsidiaries and other entities that conduct the Opto Business, and
all other assets and liabilities associated with such business, in exchange for
shares of Stratos Common Stock;
WHEREAS, Methode and Stratos intend, for U.S. federal income tax
purposes, that such contribution of assets and assumption of liabilities will
qualify either as a tax-free reorganization under Section 368(a)(1)(D) of the
Code or as a tax-free transfer of assets under Section 351(a) of the Code;
WHEREAS, Methode currently owns all of the issued and outstanding
Stratos Common Stock;
WHEREAS, Stratos has previously filed the IPO Registration Statement
with the SEC but it has not yet become effective;
WHEREAS, the parties currently contemplate that, reasonably promptly
following the execution of this Agreement, Stratos shall consummate the Initial
Public Offering;
WHEREAS, immediately following the consummation of the Initial Public
Offering, Methode shall own approximately 86.1% of the outstanding shares of
Stratos Common Stock (or approximately 84.3% if the underwriters exercise their
over-allotment option in full in accordance with the Underwriting Agreement);
WHEREAS, Methode currently contemplates that, following the closing of
the Initial Public Offering, Methode will distribute to the holders of its stock
by means of a pro rata distribution all of the shares of Stratos Common Stock
owned by Methode (the "Distribution");
WHEREAS, Methode and Stratos intend, for U.S. federal income tax
purposes, that the Distribution will be tax-free to Methode and its stockholders
(other than with respect to cash received in lieu of fractional shares) under
Sections 355 and 361 of the Code; and
WHEREAS, the parties intend in this Agreement to set forth the
arrangements between them regarding the Initial Public Offering and the
Distribution.
NOW, THEREFORE, in consideration of the foregoing, and the mutual
covenants and agreements herein contained, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings ascribed to them below:
"ABANDONMENT NOTICE" has the meaning set forth in Section 2.6.
"AFFILIATE" means a Stratos Affiliate or a Methode Affiliate, as the
case may be.
"ANCILLARY AGREEMENTS" has the meaning set forth in the Master
Separation Agreement.
"ANNUAL FINANCIAL STATEMENTS" has the meaning set forth in Section
4.1(a)(v).
"BELOW THE THRESHOLD ACTION" has the meaning set forth in Section
4.2(c).
"BUSINESS" means the Stratos Business or the Methode Business, as the
case may be.
"BUSINESS DAY" means any day other than a Saturday, a Sunday, or a day
on which banking institutions located in the State of Illinois are authorized or
obligated by law or executive order to close.
"CLAIM" has the meaning set forth in Section 5.7.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time, together with the rules and regulations promulgated thereunder.
"CONTROL" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
"DISPUTES" has the meaning set forth in Section 6.1.
"DISPUTE NOTICE" means written notice of any dispute between Methode
and Stratos arising out of or relating to this Agreement, which shall set forth,
in reasonable detail, the nature of the dispute.
"DISTRIBUTION DATE" means the date determined by Methode, in its sole
and absolute discretion, on which shares of Stratos Common Stock held by Methode
are distributed in connection with the Distribution.
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"DISTRIBUTION REGISTRATION STATEMENT" means any and all registration
statements, information statements or other documents filed by any party with
the SEC in connection with any transaction constituting part of the
Distribution, in each case as supplemented or amended from time to time.
"EMPLOYEE BENEFIT PLAN ISSUANCE" shall have the meaning set forth in
Section 4.2(d).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, together with the rules and regulations promulgated
thereunder.
"GAAP" means generally accepted accounting principles, consistently
applied.
"INDEMNIFYING PARTY" means a Person that is obligated to provide
indemnification under this Agreement.
"INDEMNITEE" means a Person that is entitled to seek indemnification
under this Agreement.
"INDEMNITY PAYMENT" means an amount that an Indemnifying Party is
required to pay to an Indemnitee under this Agreement.
"INITIAL PUBLIC OFFERING" means the initial public offering by Stratos
of shares of Stratos Common Stock as contemplated by the IPO Registration
Statement.
"INSURANCE PROCEEDS" means the payment received by an insured from an
insurance carrier or paid by an insurance carrier on behalf of the insured, net
of any applicable premium adjustment and tax effect.
"IPO REGISTRATION STATEMENT" means the Registration Statement on Form
S-1, Registration No. 333-34864, filed by Stratos with the SEC in connection
with the initial public offering, as it may be amended.
"IRS" means Internal Revenue Service of the U.S. Department of Treasury
or any successor agency.
"LETTER RULING" means the advance letter rulings expected to be issued
by the IRS to Methode regarding certain U.S. federal income tax consequences of
the Distribution and other related transactions and any supplemental letter
rulings issued by the IRS with respect thereto; provided, however, that the
requesting party complied with the provisions of the Tax Sharing Agreement
relating to requests for supplemental rulings and obtained any necessary
approval of the other party thereto.
"LOSSES" means all claims, demands, damages, losses, liabilities,
obligations, judgments, penalties, assessments, fines (civil or criminal),
forfeitures, settlements, costs, expenses or fees
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(including reasonable attorneys' fees and court costs), of any nature or kind,
whether or not the same would properly be reflected on a balance sheet, and
"Loss" means any of these.
"METHODE AFFILIATE" means a Person that, after giving effect to the
Distribution, directly or indirectly through one or more intermediaries, is
Controlled by Methode.
"METHODE ANNUAL STATEMENTS" has the meaning set forth in Section
4.1(c)(ii).
"METHODE COMMON STOCK" means the Class A and Class B Stock of Methode.
"METHODE CLASS A COMMON STOCK" means the Class A common stock, par
value $.50 per share, of Methode.
"METHODE CLASS B COMMON STOCK" means the Class B common stock, per
value $.50 per share, of Methode.
"METHODE BUSINESS" means any business or operations of Methode or any
Methode Affiliates other than the Stratos Business.
"METHODE DISCLOSURE PORTIONS" means all material set forth in, or
incorporated by reference into, either the IPO Registration Statement or the
Distribution Registration Statement, as applicable, to the extent relating
exclusively to: (i) Methode and the Methode Affiliates (excluding Stratos and
the Stratos Affiliates); (ii) the Methode Business; (iii) Methode's intentions
with respect to the Distribution; or (iv) the terms of the Distribution,
including, without limitation, the form, structure and terms of any
transaction(s) and/or offering(s) to effect the Distribution and the timing of
and conditions to the consummation of the Distribution.
"METHODE PUBLIC FILINGS" has the meaning set forth in Section
4.1(a)(xii).
"METHODE TRANSFER AGENT" means Xxxxx Xxxxxx Shareholders Services,
L.L.C., in its capacity as the transfer agent and registrar for the Methode
Common Stock.
"METHODE'S AUDITORS" has the meaning set forth in Section 4.1(c)(ii).
"NOTICE" means any notice, request, claim, demand, or other
communication under this Agreement.
"OPTO BUSINESS" has the meaning set forth in the Master Separation
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, any other entity, or any government or
any department or agency or other unit thereof.
"QUARTERLY FINANCIAL STATEMENTS" has the meaning set forth in Section
4.1(a)(iv).
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"REGULATION S-K" means Regulation S-K of the General Rules and
Regulations promulgated by the SEC.
"REGULATION S-X" means Regulation S-X of the General Rules and
Regulations promulgated by the SEC.
"REQUEST" has the meaning set forth in Section 5.7.
"SEC" means the United States Securities and Exchange Commission or any
successor agency.
"SECTION 4.2(d) PER SHARE FAIR MARKET VALUE" means, as of any date of
determination, (i) with respect to any share of Stratos Common Stock or any
other share of Stratos Capital Stock quoted on the Nasdaq National Market or any
other stock exchange or inter-dealer or other quotation system, the average of
the closing prices of Stratos Common Stock or such other Stratos Capital Stock
on the Nasdaq National Market or such other stock exchange or inter-dealer or
other quotation system during the sixty (60) trading days immediately preceding
such date of determination (it being understood and agreed that if any class of
Stratos Common Stock or Stratos Capital Stock is traded and/or quoted on more
than one stock exchange or inter-dealer or other quotation system, the
calculation to be made pursuant to this clause (i) shall be based upon the
closing prices of such class of Stratos Common Stock or Stratos Capital Stock on
the stock exchange or inter-dealer or other quotation system which had the
greatest average daily trading volume in shares of such class during the
relevant sixty (60) trading day period), and (ii) with respect to any share of
Stratos Capital Stock that is not publicly traded, the per share fair market
value as determined by a nationally recognized investment banking firm mutually
agreed by Stratos and Methode in their reasonable discretion.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time
to time, together with the rules and regulations promulgated thereunder.
"SEPARATE COUNSEL" has the meaning set forth in Section 5.6(b).
"STRATOS AFFILIATE" means a Person that, after giving effect to the
Distribution, directly or indirectly through one or more intermediaries, is
Controlled by, or is under common Control with Stratos.
"STRATOS BUSINESS" means any business or operations of Stratos or any
Stratos Affiliates, including, in all cases, any predecessor entities
(including, without limitation, the Opto Business).
"STRATOS CAPITAL STOCK" means all classes or series of capital stock of
Stratos.
"STRATOS COMMON STOCK" means the common stock, par value $.01 per
share, of Stratos.
"STRATOS PUBLIC FILINGS" has the meaning set forth in Section
4.1(a)(viii).
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"STRATOS TRANSFER AGENT" means ChaseMellon Shareholder Services,
L.L.C., in its capacity as the transfer agent and registrar for the Stratos
Common Stock.
"STRATOS' AUDITORS" has the meaning set forth in Section 4.1(c)(i).
"SUBSIDIARY" means with respect to any specified Person, any
corporation or other legal entity of which such Person or any of its
Subsidiaries Controls or owns, directly or indirectly, more than fifty percent
(50%) of the stock or other equity interest entitled to vote with respect to the
election of members to the board of directors or similar governing body;
PROVIDED, HOWEVER, that for the purposes of this Agreement, neither Stratos nor
any of the Subsidiaries of Stratos shall be deemed to be Subsidiaries of Methode
or of any of the Subsidiaries of Methode.
"TAX" or "TAXES" has the meaning set forth in the Tax Sharing
Agreement.
"TAX-RELATED LOSSES" means: (i) all federal, state and local Taxes
(including interest and penalties thereon) imposed pursuant to any settlement,
final determination, judgment, claim, audit, examination, proceeding or
otherwise; (ii) all accounting, legal and other professional fees, and court
costs incurred in connection with such Taxes; and (iii) all costs and expenses
that may result from adverse Tax consequences to Methode payable by Methode or
Methode Affiliates.
"TAX SHARING AGREEMENT" means the Tax Sharing and Indemnification
Agreement to be entered into between Methode and Stratos.
"THIRD-PARTY CLAIM" means any claim, suit, arbitration, inquiry,
proceeding or investigation by or before any court, governmental or other
regulatory or administrative agency or commission or any arbitration tribunal
asserted by a Person other than Methode or any Methode Affiliate or Stratos or
any Stratos Affiliate that gives rise to a right of indemnification hereunder.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement between
Stratos and the underwriters relating to the Initial Public Offering, as amended
from time to time.
ARTICLE 2
THE INITIAL PUBLIC OFFERING AND THE DISTRIBUTION.
2.1. THE INITIAL PUBLIC OFFERING. Stratos shall consult with, and
cooperate in all respects with, Methode in connection with the pricing of the
Stratos Common Stock to be offered in the Initial Public Offering and shall, at
Methode's direction, promptly take any and all actions necessary or desirable to
consummate the Initial Public Offering, as contemplated by the IPO Registration
Statement and the Underwriting Agreement.
2.2. THE DISTRIBUTION. Methode currently intends to complete the
Distribution by the later of (i) six (6) months from the date of the Initial
Public Offering, or (ii) three (3) months from the date of a Letter Ruling from
the IRS confirming that the Distribution is tax-free to Methode and its
stockholders (other than with respect to cash received in lieu of fractional
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shares). Methode shall, in its sole and absolute discretion, determine whether
to proceed with all or part of the Distribution and all terms of the
Distribution, including, without limitation, the form, structure and terms of
any transaction(s) and/or offering(s) to effect the Distribution and the timing
of and conditions to the consummation of the Distribution. In addition, Methode
may at any time and from time to time until the completion of the Distribution
modify or change the terms of the Distribution, including, without limitation,
by accelerating or delaying the timing of the consummation of all or part of the
Distribution. Stratos shall cooperate with Methode in all respects to accomplish
the Distribution and shall, at Methode's direction, promptly take any and all
actions necessary or desirable to effect the Distribution, including, without
limitation, the registration under the Securities Act of Stratos Common Stock on
an appropriate registration form or forms to be designated by Methode, if
required by applicable law. Methode shall select any investment banker(s) and
manager(s) in connection with the Distribution, as well as any financial
printer, solicitation and/or exchange agent and outside counsel for Methode;
PROVIDED, HOWEVER, that nothing herein shall prohibit Stratos from engaging (at
its own expense) its own financial, legal, accounting and other advisors in
connection with the Distribution.
2.3. CERTAIN STOCKHOLDER MATTERS. From and after the distribution of
Stratos Common Stock in connection with any transaction(s) included as part of
the Distribution and until such Stratos Common Stock is duly transferred in
accordance with applicable law, Stratos shall regard the Persons receiving
Stratos Common Stock in such transaction(s) as record holders of Stratos Common
Stock in accordance with the terms of such transaction(s) without requiring any
action on the part of such Persons. Stratos agrees that, subject to any
transfers of such stock, (a) each such holder shall be entitled to receive all
dividends payable on, and exercise voting rights and all other rights and
privileges with respect to, the shares of Stratos Common Stock then held by such
holder, and (b) each such holder shall be entitled, without any action on the
part of such holder, to receive one or more certificates representing, or other
evidence of ownership of, the shares of Stratos Common Stock then held by such
holder. Methode shall cooperate, and shall instruct the Methode Transfer Agent
to cooperate, with Stratos and the Stratos Transfer Agent, and Stratos shall
cooperate, and shall instruct the Stratos Transfer Agent to cooperate, with
Methode and the Methode Transfer Agent, in connection with all aspects of the
Distribution and all other matters relating to the issuance and delivery of
certificates representing, or other evidence of ownership of, the shares of
Stratos Common Stock distributed to the holders of Methode Common Stock in
connection with any transaction(s) included as part of the Distribution.
Following the Distribution, Methode shall instruct the Methode Transfer Agent to
deliver to the Stratos Transfer Agent true, correct and complete copies of the
stock and transfer records reflecting the holders of Methode Common Stock
receiving shares of Stratos Common Stock in connection with any transaction(s)
included as part of the Distribution.
2.4. PRIOR RELATIONSHIP. Stratos, with respect to Stratos and all of
the Stratos Affiliates, and Methode, with respect to Methode and all of the
Methode Affiliates, agree to take all commercially reasonable action to
discontinue their respective uses as promptly as is commercially reasonable of
any printed material that indicates an ownership or other relationship between
or among Methode and Stratos or any of their respective Affiliates that has
changed as a result of the Initial Public Offering, the Distribution or any
other transactions contemplated
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hereby; PROVIDED, HOWEVER, that this Section 2.4 shall not prohibit the use of
printed material containing appropriate and accurate references to such
relationship.
2.5. FURTHER ASSURANCES REGARDING THE DISTRIBUTION. In addition to the
actions specifically provided for elsewhere in this Agreement, Stratos shall, at
Methode's direction, use all commercially reasonable efforts to take, or cause
to be taken, all actions, and to do, or cause to be done, all things
commercially reasonably necessary, proper or expeditious under applicable laws,
regulations and agreements in order to consummate and make effective the
Distribution as promptly as reasonably practicable. Without limiting the
generality of the foregoing, Stratos shall, at Methode's direction, cooperate
with Methode, and execute and deliver, or use all commercially reasonable
efforts to cause to have executed and delivered, all instruments, including
instruments of conveyance, assignment and transfer, and to make all filings
with, and to obtain all consents, approvals or authorizations of, any domestic
or foreign governmental or regulatory authority requested by Methode in order to
consummate and make effective the Distribution.
2.6. ABANDONMENT OF THE DISTRIBUTION. The parties expressly acknowledge
and agree that Methode is not obligated in any respect to proceed with or
complete the Distribution and that Methode may, in its sole and absolute
discretion, at any time abandon its plans to proceed with or complete the
Distribution. In the event that Methode so determines that it no longer intends
to proceed with or complete the Distribution, Methode shall promptly after such
determination provide to Stratos a written notification of such determination
(an "Abandonment Notice"). Effective as of the date of the Abandonment Notice,
(a) Section 4.2 of this Agreement shall terminate, become null and void and have
no further force and effect (it being expressly understood and agreed by the
parties that such Section shall remain in full force and effect in the event
that the Distribution has occurred on or prior to the date of the Abandonment
Notice), and (b) Methode's rights, and Stratos' obligations, set forth in the
Registration Rights Agreement shall immediately become effective.
ARTICLE 3
EXPENSES
3.1 EXPENSES RELATING TO THE CONTRIBUTION, INITIAL PUBLIC OFFERING
AND THE DISTRIBUTION. Except as otherwise provided in this Agreement, the
Master Separation Agreement, any of the other Ancillary Agreements or any
other agreement between the parties relating to the Contribution, the Initial
Public Offering or the Distribution, all costs, fees and expenses in
connection with the Contribution and the Initial Public Offering incurred on
or after May 28, 2000 and the fees payable to the investment banking firm
engaged by Methode and Stratos in connection with the Distribution shall be
paid by Stratos and all costs, fees and expenses in connection with the
Contribution and the Initial Public Offering incurred prior to May 28, 2000
and all other costs, fees and expenses in connection with the Distribution
shall be paid by Methode; PROVIDED, HOWEVER, that any internal costs incurred
by either party or an Affiliate thereof shall be paid by the party that
incurs such costs.
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ARTICLE 4
CERTAIN COVENANTS
4.1. FINANCIAL AND OTHER INFORMATION.
(a) STRATOS FINANCIAL INFORMATION. Stratos agrees that, for so long as
Methode is required to consolidate Stratos' results of operations and financial
position or to account for its investment in Stratos under the equity method of
accounting (determined in accordance with GAAP):
(i) Stratos shall, and shall cause each of its Subsidiaries to,
maintain a system of internal accounting controls that will
provide reasonable assurance that: (A) Stratos' and such
Subsidiaries' books, records and accounts fairly reflect all
transactions and dispositions of assets, and (B) the specific
objectives of accounting control are achieved.
(ii) Stratos shall, and shall cause each of its Subsidiaries to,
maintain a fiscal year that coincides with Methode's fiscal
year.
(iii) Methode shall provide Stratos with reasonable advance notice
of its corporate closing requirements, schedule and proposed
filing dates, and Stratos shall deliver to Methode all
schedules requested by Methode, consistent with Methode's
corporate closing requirements and in a time consistent with
Methode's corporate closing schedule.
(iv) As soon as practicable, and in any event within thirty-five
(35) days after the end of each of the first three fiscal
quarters in each fiscal year of Stratos and no later than five
(5) days before Stratos intends to file its Quarterly
Financial Statements (as defined below) with the SEC, Stratos
shall deliver to Methode drafts of (A) the consolidated
financial statements of Stratos and its Subsidiaries (and
notes thereto) for such periods and for the period from the
beginning of the current fiscal year to the end of such
quarter, setting forth in each case in comparative form for
each such fiscal quarter of Stratos the consolidated figures
(and notes thereto) for the corresponding quarter and periods
of the previous fiscal year and all in reasonable detail and
prepared in accordance with Article 10 of Regulation S-X, and
(B) a discussion and analysis by management of Stratos' and
its Subsidiaries' financial condition and results of
operations for such fiscal period, including, without
limitation, an explanation of any material adverse change, all
in reasonable detail and prepared in accordance with Item
303(b) of Regulation S- K. The information set forth in (A)
and (B) above is herein referred to as the "Quarterly
Financial Statements." No later than the earlier of (x) two
(2) Business Days prior to the date Stratos publicly files the
Quarterly Financial Statements with the SEC or otherwise makes
such Quarterly Financial Statements publicly available, or (y)
two (2) Business Days prior to the date on which Methode has
notified Stratos that it intends to file its quarterly
financial statements with the
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SEC, Stratos shall deliver to Methode the final form of the
Quarterly Financial Statements certified by the chief
financial officer of Stratos as presenting fairly, in all
material respects, the financial condition and results of
operations of Stratos and its Subsidiaries; PROVIDED, HOWEVER,
that Stratos may continue to revise such Quarterly Financial
Statements prior to the filing thereof in order to make
corrections and changes which revisions shall be delivered by
Stratos to Methode as soon as practicable; and, PROVIDED,
FURTHER, that Methode and Stratos financial representatives
shall actively consult with each other regarding any changes
(whether or not substantive) that Stratos may consider making
to its Quarterly Financial Statements and related disclosures
during the three (3) Business Days immediately prior to any
anticipated filing with the SEC, and Stratos shall obtain
Methode's consent prior to making any change to Stratos'
Quarterly Financial Statements or related disclosures that
would have an effect upon Methode's financial statements or
related disclosures. In addition, no Quarterly Financial
Statement or any other document that refers, or contains
information with respect, to the ownership of Stratos by
Methode, the separation of Stratos from Methode or the
Distribution shall be filed with the SEC or otherwise made
public by Stratos or any of its Subsidiaries without Methode's
prior written consent.
(v) Stratos shall deliver to Methode as soon as practicable, and
in any event within sixty (60) days after the end of each
fiscal year of Stratos and no later than ten (10) days before
Stratos intends to file its Annual Financial Statements (as
defined below) with the SEC, (A) drafts of the consolidated
financial statements of Stratos (and notes thereto) for such
fiscal year, setting forth in each case in comparative form
the consolidated figures (and notes thereto) for the previous
fiscal year and all in reasonable detail and prepared in
accordance with Regulation S-X, and (B) a discussion and
analysis by management of Stratos' and its Subsidiaries'
financial condition and results of operations for such year,
including, without limitation, an explanation of any material
adverse change, all in reasonable detail and prepared in
accordance with Item 303(a) of Regulation S-K. The information
set forth in (A) and (B) above is herein referred to as the
"Annual Financial Statements." Stratos shall deliver to
Methode all revisions to such drafts as soon as any such
revisions are prepared or made. No later than the earlier of
(x) five (5) Business Days prior to the date Stratos publicly
files the Annual Financial Statements with the SEC or
otherwise makes such Annual Financial Statements publicly
available, or (y) five (5) Business Days prior to the date on
which Methode has notified Stratos that it intends to file its
annual financial statements with the SEC, Stratos shall
deliver to Methode the final form of the Annual Financial
Statements certified by the chief financial officer of Stratos
as presenting fairly, in all material respects, the financial
condition and results of operations of Stratos and its
Subsidiaries; PROVIDED, HOWEVER, that Stratos may continue to
revise such Annual Financial Statements prior to the filing
thereof in order to make corrections and changes which
revisions shall be delivered by Stratos to Methode as soon as
practicable; and, PROVIDED, FURTHER, that Methode and Stratos
financial representatives shall actively consult with each
other regarding any changes
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(whether or not substantive) that Stratos may consider making
to its Annual Financial Statements and related disclosures
during the three (3) Business Days immediately prior to any
anticipated filing with the SEC, and Stratos shall obtain
Methode's consent prior to making any change to Stratos'
Annual Financial Statements or related disclosures that would
have an effect upon Methode's financial statements or related
disclosures. In addition, no Annual Financial Statement or any
other document that refers, or contains information with
respect, to the ownership of Stratos by Methode, the
separation of Stratos from Methode or the Distribution shall
be filed with the SEC or otherwise made public by Stratos or
any of its Subsidiaries without Methode's prior written
consent. In any event, Stratos shall deliver to Methode, no
later than seventy-five (75) days after the end of each fiscal
year of Stratos, the final form of the Annual Financial
Statements accompanied by an opinion thereon by Stratos'
independent certified public accountants.
(vi) Stratos shall deliver to Methode all Quarterly and Annual
Financial Statements of each Subsidiary of Stratos that is
itself required to file financial statements with the SEC or
otherwise make such financial statements publicly available,
with such financial statements to be provided in the same
manner and detail and on the same time schedule as those
financial statements of Stratos required to be delivered to
Methode pursuant to this Section 4.1.
(vii) All information provided by Stratos or any of its Subsidiaries
to Methode pursuant to Sections 4.1(a)(iii) through (vi)
inclusive shall be consistent in terms of format and detail
and otherwise with the procedures in effect on the date hereof
with respect to the provision of such financial information by
the Stratos Business and/or Stratos and its Subsidiaries, as
applicable, to Methode (and, where appropriate, as presently
presented in financial reports to Methode's Board of
Directors), with such changes therein as may be requested by
Methode from time to time consistent with changes in reporting
by divisions and Subsidiaries of Methode.
(viii) Stratos and each of its Subsidiaries that files information
with the SEC shall deliver to Methode (A) as soon as the same
are prepared, substantially final drafts of: (x) all reports,
notices and proxy and information statements to be sent or
made available by Stratos or any of its Subsidiaries to their
security holders, (y) all regular, periodic and other reports
to be filed under Sections 13, 14 and 15 of the Exchange Act
(including Reports on Forms 10-K, 10-Q and 8-K and Annual
Reports to Shareholders), and (z) all registration statements
and prospectuses to be filed by Stratos or any of its
Subsidiaries with the SEC or any securities exchange pursuant
to the listed company manual (or similar requirements) of such
exchange (collectively, the documents identified in clauses
(x), (y) and (z) are referred to herein as "Stratos Public
Filings"), and (B) as soon as practicable, but in no event
later than five (5) Business Days prior to the date the same
are printed, sent or filed, whichever is earliest, final
copies of all such Stratos Public Filings;
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PROVIDED, HOWEVER, that Stratos may continue to revise such
Stratos Public Filings prior to the filing thereof in order to
make corrections and changes which revisions shall be
delivered by Stratos to Methode as soon as practicable; and,
PROVIDED, FURTHER, that Methode and Stratos financial
representatives shall actively consult with each other
regarding any changes (whether or not substantive) that
Stratos may consider making to any of its Stratos Public
Filings and related disclosures prior to any anticipated
filing with the SEC, and Stratos shall obtain Methode's
consent prior to making any change to its Stratos Public
Filings or related disclosures that would have an effect upon
Methode's financial statements or related disclosures. In
addition, no Stratos Public Filings or any other document
which refers, or contains information with respect, to the
ownership of Stratos by Methode, the separation of Stratos
from Methode or the Distribution shall be filed with the SEC
or otherwise made public by Stratos or any of its Subsidiaries
without Methode's prior written consent.
(ix) Stratos shall, as promptly as practicable, deliver to Methode
copies of all annual and other budgets and financial
projections (consistent in terms of format and detail and
otherwise with the procedures in effect on the date hereof)
relating to Stratos or any of its Subsidiaries and shall
provide Methode an opportunity to meet with management of
Stratos to discuss such budgets and projections.
(x) With reasonable promptness, Stratos shall deliver to Methode
such additional financial and other information and data with
respect to Stratos and its Subsidiaries and their business,
properties, financial positions, results of operations and
prospects as from time to time may be reasonably requested by
Methode.
(xi) Prior to issuance, Stratos shall deliver to Methode copies of
substantially final drafts of all press releases and other
statements to be made available by Stratos or any of its
Subsidiaries to Stratos employees or any of its Subsidiaries
or to the public concerning material developments in the
business, properties, earnings, results of operations,
financial condition or prospects of Stratos or any of its
Subsidiaries or the relationship between (A) Stratos or any of
its Subsidiaries and (B) Methode or any of its Affiliates. In
addition, prior to the issuance of any such press release or
public statement, Stratos shall consult with Methode regarding
any changes (other than typographical or other similar minor
changes) to such substantially final drafts. Immediately
following the issuance thereof, Stratos shall deliver to
Methode copies of final drafts of all press releases and other
public statements. Stratos and Methode will consult with each
other as to the timing of their annual and quarterly earnings
releases and will give each other an opportunity to review the
information therein relating to Stratos and its Subsidiaries
and to comment thereon.
(xii) Stratos shall cooperate fully, and cause its accountants to
cooperate, with Methode to the extent reasonably requested by
Methode in the preparation of Methode's
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public earnings releases, quarterly reports on Form 10-Q,
Annual Reports to Shareholders, Annual Reports on Form 10-K,
any Current Reports on Form 8-K and any other proxy,
information and registration statements, reports, notices,
prospectuses and any other filings made by Methode with the
SEC, any national securities exchange or otherwise made
publicly available (collectively, "Methode Public Filings").
Stratos agrees to provide to Methode all information that
Methode reasonably requests in connection with any Methode
Public Filings or that, in the judgment of Methode's legal
counsel, is required to be disclosed or incorporated by
reference therein under any law, rule or regulation. Such
information shall be provided by Stratos in a timely manner on
the dates reasonably requested by Methode (which may be
earlier than the dates on which Stratos otherwise would be
required hereunder to have such information available) to
enable Methode to prepare, print and release all Methode
Public Filings on such dates as Methode shall determine.
Stratos shall cause its accountants to consent to any
reference to them as experts in any Methode Public Filings
required under any law, rule or regulation. If and to the
extent reasonably requested by Methode, Stratos shall
diligently and promptly review all drafts of such Methode
Public Filings and prepare in a diligent and timely fashion
any portion of such Methode Public Filing pertaining to
Stratos. Prior to any printing or public release of any
Methode Public Filing, an appropriate executive officer of
Stratos shall, if requested by Methode, certify that the
information relating to Stratos, any Stratos Affiliate or the
Stratos Business in such Methode Public Filing is accurate,
true and correct in all material respects. Unless required by
law, rule or regulation, Stratos shall not publicly release
any financial or other information which conflicts with the
information with respect to Stratos, any Stratos Affiliate or
the Stratos Business that is included in any Methode Public
Filing without Methode's prior written consent. Prior to the
release or filing thereof, Methode shall provide Stratos with
a draft of any portion of a Methode Public Filing containing
information relating to Stratos and its Subsidiaries and shall
give Stratos an opportunity to review such information and
comment thereon; provided that Methode shall determine in its
sole discretion the final form and content of all Methode
Public Filings.
(b) Methode shall cooperate fully, and cause its accountants to
cooperate fully, with Stratos to the extent reasonably requested by Stratos in
the preparation of any Stratos Public Filings. Methode agrees to provide to
Stratos all information that Stratos reasonably requests in connection with any
Stratos Public Filings or that, in the judgment of Stratos' legal counsel, is
required to be disclosed or incorporated by reference therein under any law,
rule or regulation. Such information shall be provided by Methode in a timely
manner on the dates reasonably requested by Stratos (which may be earlier than
the dates on which Methode otherwise would be required hereunder to have such
information available) to enable Stratos to prepare, print and release all
Stratos Public Filings on such dates as Stratos shall determine. Methode shall
cause its accountants to consent to any reference to them as experts in any
Stratos Public Filings required under any law, rule or regulation. If and to the
extent reasonably requested by Stratos, Methode shall diligently and promptly
review all drafts of such Stratos Public Filings and
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prepare in a diligent and timely fashion any portion of such Stratos Public
Filing pertaining to Methode. Prior to any printing or public release of any
Stratos Public Filing, an appropriate executive officer of Methode shall, if
requested by Stratos, certify that the information relating to Methode, any
Methode Affiliate or any of their respective businesses in such Stratos Public
Filing is accurate, true and correct in all material respects. Unless required
by law, rule or regulation, Methode shall not publicly release any financial or
other information which conflicts with the information with respect to Methode,
any Methode Affiliate or any of their respective businesses that is included in
any Stratos Public Filing without Stratos' prior written consent. Prior to the
release or filing thereof, Stratos shall provide Methode with a draft of any
portion of a Stratos Public Filing containing information relating to Methode
and its Subsidiaries and shall give Methode an opportunity to review such
information and comment thereon; PROVIDED, HOWEVER, that Stratos shall determine
in its sole discretion the final form and content of all Stratos Public Filings.
(c) AUDITORS AND AUDITS; ANNUAL STATEMENTS AND ACCOUNTING. Stratos
agrees that, for so long as Methode is required to consolidate Stratos' results
of operations and financial position or to account for its investment in Stratos
under the equity method of accounting (in accordance with GAAP):
(i) Stratos shall not select a different accounting firm than
Ernst & Young, LLP, to serve as its (and its Subsidiaries')
independent certified public accountants ("Stratos' Auditors")
without Methode's prior written consent (which shall not be
unreasonably withheld).
(ii) Stratos shall use its reasonable best efforts to enable the
Stratos' Auditors to complete their audit such that they will
date their opinion on Stratos' audited annual financial
statements on the same date that Methode's independent
certified public accountants ("Methode's Auditors") date their
opinion on Methode's audited annual financial statements (the
"Methode Annual Statements"), and to enable Methode to meet
its timetable for the printing, filing and public
dissemination of the Methode Annual Statements.
(iii) Stratos shall provide to Methode on a timely basis all
information that Methode reasonably requires to meet its
schedule for the preparation, printing, filing, and public
dissemination of the Methode Annual Statements. Without
limiting the foregoing, Stratos will provide all required
financial information with respect to Stratos and its
Subsidiaries to Stratos' Auditors in a sufficient and
reasonable time and in sufficient detail to permit Stratos'
Auditors to take all steps and perform all reviews necessary
to provide sufficient assistance to Methode's Auditors with
respect to information to be included in the Methode Annual
Statements.
(iv) Stratos shall authorize Stratos' Auditors to make available to
Methode's Auditors both the personnel who performed or are
performing the annual audit of Stratos and work papers related
to the annual audit of Stratos, in all cases within a
reasonable time prior to Stratos' Auditors' opinion date, so
that Methode's
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Auditors are able to perform the procedures they consider
necessary to take responsibility for the work of Stratos'
Auditors as it relates to Methode's Auditors' report on
Methode's statements, all within sufficient time to enable
Methode to meet its timetable for the printing, filing and
public dissemination of the Methode Annual Statements.
(v) Stratos shall provide Methode's internal auditors access to
Stratos' and its Subsidiaries, books and records so that
Methode may conduct reasonable audits relating to the
financial statements provided by Stratos pursuant hereto as
well as to the internal accounting controls and operations of
Stratos and its Subsidiaries.
(vi) Stratos shall give Methode as much prior notice as reasonably
practical of any proposed determination of, or any significant
changes in, its accounting estimates or accounting principles
from those in effect on the date hereof. Stratos will consult
with Methode and, if requested by Methode, Stratos will
consult with Methode's independent public accountants with
respect thereto. Stratos will not make any such determination
or changes without Methode's prior written consent if such a
determination or a change would be sufficiently material to be
required to be disclosed in Stratos' financial statements as
filed with the SEC or otherwise publicly disclosed therein.
(vii) Notwithstanding clause (vi) above, Stratos shall make any
changes in its accounting estimates or accounting principles
that are requested by Methode in order for Stratos' accounting
estimates and principles to be consistent with those of
Methode.
Nothing in this Section 4.1 shall require Stratos to violate any
agreement with any of its customers regarding the confidentiality of
commercially sensitive information relating to that customer or its business;
provided that in the event Stratos is required under this Section 4.1 to
disclose any such information, Stratos shall use all commercially reasonable
efforts to seek to obtain such customer's consent to the disclosure of such
information.
4.2. OTHER COVENANTS. Stratos hereby covenants and agrees that, for so
long as Methode beneficially owns at least fifty percent (50%) of the
outstanding shares of Stratos Common Stock, or until this Section 4.2 is
terminated pursuant to Section 2.6 hereof:
(a) Stratos shall not, without Methode's prior written consent (which
it may withhold in its sole and absolute discretion), take, or cause to be
taken, directly or indirectly, any action, including making or failing to make
any election under the law of any state, which has the effect, directly or
indirectly, of restricting or limiting Methode's ability to freely sell,
transfer, assign, pledge or otherwise dispose of shares of Stratos Common Stock
or, other than as provided in a stockholder rights plan approved in advanced by
Methode, would restrict or limit the rights of any transferee of Methode as a
holder of Stratos Common Stock. Without limiting the foregoing, Stratos shall
not, without Methode's prior written consent (which it may withhold in its sole
and absolute discretion), (i) amend, supplement, restate, modify or alter any
stockholder rights plan
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adopted by Stratos in any manner that would result in (A) the ownership of
Stratos Common Stock by Methode causing the rights thereunder to detach or
become exercisable and/or (B) Methode and its transferees not being entitled to
the same rights thereunder as other holders of Stratos Common Stock, or (ii)
take any action, or take any action to recommend to its stockholders any action,
which would, among other things, limit the legal rights of, or deny any benefit
to, Methode as a Stratos stockholder in a manner not applicable to Stratos
stockholders generally.
(b) Stratos shall not, without Methode's prior written consent (which
it may withhold in its sole and absolute discretion), issue any shares of
Stratos Capital Stock or any rights, warrants or options to acquire Stratos
Capital Stock (including, without limitation, securities convertible or
exchangeable for Stratos Capital Stock), if after giving effect to such
issuances and considering all of the shares of Stratos Capital Stock acquirable
pursuant to such rights, warrants and options to be outstanding on the date of
such issuance (whether or not then exercisable), Methode would own less than
eighty and one-half percent (80.5%) of the then outstanding shares of Stratos
Common Stock.
(c) Subject to Section 4.2(d), if Methode determines in its sole
discretion that Stratos has taken, is taking or will or will likely undertake
any action, including, without limitation, the issuance or distribution of any
equity securities, that has or will or will (including when taken with other
actions by any Person) likely result in Methode owning less than eighty and
one-half percent (80.5%) of the then outstanding shares of Stratos Capital Stock
(a "Below the Threshold Action"), (i) Stratos shall, at Methode's option, (x)
upon notice from Methode immediately seek to reverse any such action already
taken, cease any such action being taken or not take any future action, as the
case may be, in each case to the satisfaction of Methode or (y) issue or
otherwise distribute to Methode, at no cost to Methode, additional equity
securities such that, after the consummation of any such action Methode will
again or will continue to (as the case may be) own not less than eighty and
one-half percent (80.5%) of the then outstanding shares of Stratos Capital
Stock, or (ii) Methode shall have the right to purchase shares of Stratos
Capital Stock on the open market or from third parties sufficient to ensure that
after the consummation of any such action Methode will again or will continue to
(as the case may be) own not less than eighty and one-half percent (80.5%) of
the then outstanding shares of Stratos Capital Stock, and Stratos shall promptly
reimburse Methode for the purchase price of such shares of Stratos Capital
Stock, together with all fees, commissions and other expenses incurred by
Methode in making such purchase.
(d) If Methode determines in its sole discretion that Stratos has
taken, is taking or will or will likely undertake a Below the Threshold Action
after the second anniversary of the closing date of the Initial Public Offering
consisting solely of, or solely as a result of, the issuance of Stratos Common
Stock under Stratos' 2000 Stock Option Plan as such plan is in effect on such
closing date (an "Employee Benefit Plan Issuance"): (i) Stratos shall have no
obligation to comply with Section 4.2(c)(i)(x); (ii) any additional equity
securities of Stratos required to be issued or otherwise distributed by Stratos
to Methode in accordance with Section 4.2(c)(i)(y) shall be issued to Methode at
a price per share equal to the Section 4.2(d) Per Share Fair Market Value; and
(iii) Stratos shall have no obligation to reimburse Methode for purchases by
Methode
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of Stratos Capital Stock on the open market or from third parties in accordance
with Section 4.2(c)(ii); PROVIDED, HOWEVER, that this Section 4.2(d) shall be of
no force and effect and Section 4.2(c) shall continue to apply to any Below the
Threshold Action if Methode determines, in its reasonable discretion, that (x)
the Below the Threshold Action is not solely attributable to an Employee Benefit
Plan Issuance or (y) it cannot in good faith determine whether the Below the
Threshold Action is solely attributable to an Employee Benefit Plan Issuance.
ARTICLE 5
INDEMNIFICATION
5.1. INDEMNIFICATION BY STRATOS. Subject to Section 5.3, Stratos shall
indemnify, defend and hold harmless Methode, all Methode Affiliates and each of
their respective directors, officers and employees (in their capacities as
such), from and against:
(a) all Losses relating to, arising out of, or due to, directly or
indirectly, any breach by Stratos or any Stratos Affiliate of any of the
provisions of this Agreement;
(b) all Losses relating to, arising out of, or due to, directly or
indirectly, any incorrect, inaccurate or incomplete financial and other
information provided by Stratos or any Stratos Affiliate to Methode pursuant to
Section 4.1 of this Agreement;
(c) all Losses relating to, arising out of, or due to any untrue
statement or alleged untrue statement of a material fact contained in, or
incorporated by reference into, the IPO Registration Statement or the omission
or alleged omission to state (whether pursuant to direct statement or
incorporation by reference) in the IPO Registration Statement a material fact
required to be stated therein or necessary to make the statements therein not
misleading other than with respect to the Methode Disclosure Portions; and
(d) all Losses relating to, arising out of, or due to any untrue
statement or alleged untrue statement of a material fact contained in, or
incorporated by reference into, the Distribution Registration Statement or the
omission or alleged omission to state (whether pursuant to direct statement or
incorporation by reference) in the Distribution Registration Statement a
material fact required to be stated therein or necessary to make the statements
therein not misleading other than with respect to the Methode Disclosure
Portions.
5.2. INDEMNIFICATION BY METHODE. Subject to Section 5.3, Methode shall
indemnify, defend, and hold harmless Stratos, all Stratos Affiliates, and each
of their respective directors, officers and employees (in their capacities as
such), from and against:
(a) all Losses relating to, arising out of, or due to, directly or
indirectly, any breach by Methode or any Methode Affiliate of any of the
provisions of this Agreement;
(b) all Losses relating to, arising out of, or due to, directly or
indirectly, any incorrect, inaccurate or incomplete financial and other
information provided by Methode or any Methode Affiliate to Stratos pursuant to
Section 4.1 of this Agreement;
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(c) all Losses relating to, arising out of, or due to any untrue
statement or alleged untrue statement of a material fact contained in, or
incorporated by reference into, the Methode Disclosure Portions of the IPO
Registration Statement or the omission or alleged omission to state (whether
pursuant to direct statement or incorporation by reference) in the Methode
Disclosure Portions of the IPO Registration Statement a material fact required
to be stated therein or necessary to make the statements therein not misleading;
and
(d) all Losses relating to, arising out of, or due to any untrue
statement or alleged untrue statement of a material fact contained in, or
incorporated by reference into, the Methode Disclosure Portions of the
Distribution Registration Statement or the omission or alleged omission to state
(whether pursuant to direct statement or incorporation by reference) in the
Methode Disclosure Portions of the Distribution Registration Statement a
material fact required to be stated therein or necessary to make the statements
therein not misleading.
5.3. OTHER LIABILITIES.
(a) This Article 5 shall not apply to any Tax-Related Losses or other
Tax matters (which shall be governed by the Tax Sharing Agreement) to the extent
that such application would give rise to duplicative payments.
(b) This Article 5 shall not be applicable to any Losses relating to,
arising out of, or due to any breach of the provisions of any other contract,
agreement or understanding between Methode or any Methode Affiliate and Stratos
or any Stratos Affiliate, including, without limitation, the Master Separation
Agreement, the Tax Sharing Agreement and any of the other Ancillary Agreements,
which Losses shall be governed by the terms of such contract, agreement or
understanding.
5.4. TAX EFFECTS OF INDEMNIFICATION.
(a) Any indemnification payment made under this Agreement shall be
characterized for tax purposes as if such payment were made immediately prior
to the Distribution Date except to the extent otherwise required by the Tax
Sharing Agreement.
(b) The amount of any Loss for which indemnification is provided under
this Agreement shall be (i) increased to take account of net Tax cost, if any,
incurred by the Indemnitee arising from the receipt or accrual of an Indemnity
Payment hereunder (grossed up for such increase) and (ii) reduced to take
account of net Tax benefit, if any, realized by the Indemnitee arising from
incurring or paying such Loss. In computing the amount of any such Tax cost or
Tax benefit, the Indemnitee shall be deemed to recognize all other items of
income, gain, loss, deduction or credit before recognizing any item arising from
the receipt or accrual of any Indemnity Payment hereunder or incurring or paying
any indemnified Loss. Any Indemnity Payment hereunder shall initially be made
without regard to this Section 5.4 and shall be increased or reduced to reflect
any such net Tax cost (including gross-up) or net Tax benefit only
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after the Indemnitee has actually realized such cost or benefit. For purposes of
this Agreement, an Indemnitee shall be deemed to have "actually realized" a net
Tax cost or a net Tax benefit to the extent that, and at such time as, the
amount of Taxes payable by such Indemnitee is increased above or reduced below,
as the case may be, the amount of Taxes that such Indemnitee would be required
to pay but for the receipt or accrual of the Indemnity Payment or the incurrence
or payment of such Loss, as the case may be. The amount of any increase or
reduction hereunder shall be adjusted to reflect any final determination (which
shall include the execution of Form 870-AD or successor form) with respect to
the Indemnitee's liability for Taxes, and payments between Methode and Stratos
to reflect such adjustment shall be made if necessary.
5.5. EFFECT OF INSURANCE UPON INDEMNIFICATION. The amount which an
Indemnifying Party is required to pay to any Indemnitee pursuant to this Article
5 shall be reduced (including retroactively) by any Insurance Proceeds and other
amounts actually recovered by such Indemnitee in reduction of the related Loss,
it being understood and agreed that each of Stratos and Methode shall use
commercially reasonable efforts to collect any such proceeds or other amounts to
which it or any of its Affiliates is entitled, without regard to whether it is
the Indemnifying Party hereunder. No Indemnitee shall be required, however, to
collect any such proceeds or other amounts prior to being entitled to
indemnification from an Indemnifying Party hereunder. If an Indemnitee receives
an Indemnity Payment in respect of a Loss and subsequently receives Insurance
Proceeds or other amounts in respect of such Loss, then such Indemnitee shall
pay to such Indemnifying Party an amount equal to the difference between (a) the
sum of the amount of such Indemnity Payment and the amount of such Insurance
Proceeds or other amounts actually received and (b) the amount of such Loss, in
each case adjusted (at such time as appropriate adjustment can be determined) to
reflect any premium adjustment attributable to such claim.
5.6. PROCEDURE FOR INDEMNIFICATION INVOLVING THIRD-PARTY CLAIMS.
(a) NOTICE OF CLAIM. If any Indemnitee receives notice of the assertion
of any Third-Party Claim with respect to which an Indemnifying Party is
obligated under this Agreement to provide indemnification, such Indemnitee shall
give such Indemnifying Party notice thereof (together with a copy of such
Third-Party Claim, process or other legal pleading) promptly after becoming
aware of such Third-Party Claim; PROVIDED, HOWEVER, that the failure of any
Indemnitee to give notice as provided in this Section shall not relieve any
Indemnifying Party of its obligations under this Article 5, except to the extent
that such Indemnifying Party is actually prejudiced by such failure to give
notice. Such notice shall describe such Third-Party Claim in reasonable detail.
(b) OBLIGATION OF INDEMNIFYING PARTY. An Indemnifying Party, at such
Indemnifying Party's own expense and through counsel chosen by such Indemnifying
Party (which counsel shall be reasonably acceptable to the Indemnitee), may
elect to defend any Third-Party Claim. If an Indemnifying Party elects to defend
a Third-Party Claim, then, within ten (10) Business Days after receiving notice
of such Third-Party Claim (or sooner, if the nature of such Third-Party Claim so
requires), such Indemnifying Party shall notify the Indemnitee of its intent to
do so, and such Indemnitee shall cooperate in the defense of such Third-Party
Claim. Such Indemnifying
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Party shall pay such Indemnitee's reasonable out-of-pocket expenses incurred in
connection with such cooperation. Such Indemnifying Party shall keep the
Indemnitee reasonably informed as to the status of the defense of such
Third-Party Claim. After notice from an Indemnifying Party to an Indemnitee of
its election to assume the defense of a Third-Party Claim, such Indemnifying
Party shall not be liable to such Indemnitee under this Article 5 for any legal
or other expenses subsequently incurred by such Indemnitee in connection with
the defense thereof other than those expenses referred to in the preceding
sentence; PROVIDED, HOWEVER, that such Indemnitee shall have the right to employ
one law firm as counsel, together with a separate local law firm in each
applicable jurisdiction ("Separate Counsel"), to represent such Indemnitee in
any action or group of related actions (which firm or firms shall be reasonably
acceptable to the Indemnifying Party) if, in such Indemnitee's reasonable
judgment at any time, either a conflict of interest between such Indemnitee and
such Indemnifying Party exists in respect of such claim, or there may be
defenses available to such Indemnitee which are different from or in addition to
those available to such Indemnifying Party and the representation of both
parties by the same counsel would be inappropriate, and in that event (i) the
reasonable fees and expenses of such Separate Counsel shall be paid by such
Indemnifying Party (it being understood, however, that the Indemnifying Party
shall not be liable for the expenses of more than one Separate Counsel
(excluding local counsel) with respect to any Third-Party Claim (even if against
multiple Indemnitees)) and (ii) each of such Indemnifying Party and such
Indemnitee shall have the right to conduct its own defense in respect of such
claim. If an Indemnifying Party elects not to defend against a Third-Party
Claim, or fails to notify an Indemnitee of its election as provided in this
Article 5 within the period of ten (10) Business Days described above, the
Indemnitee may defend, compromise, and settle such Third-Party Claim and shall
be entitled to indemnification hereunder (to the extent permitted hereunder);
PROVIDED, HOWEVER, that no such Indemnitee may compromise or settle any such
Third-Party Claim without the prior written consent of the Indemnifying Party,
which consent shall not be unreasonably withheld or delayed. Notwithstanding the
foregoing, the Indemnifying Party shall not, without the prior written consent
of the Indemnitee, (i) settle or compromise any Third-Party Claim or consent to
the entry of any judgment which does not include as an unconditional term
thereof the delivery by the claimant or plaintiff to the Indemnitee of a written
release from all liability in respect of such Third-Party Claim or (ii) settle
or compromise any Third-Party Claim in any manner that would be reasonably
likely to have a material adverse effect on the Indemnitee.
(c) JOINT DEFENSE OF CERTAIN CLAIMS. Notwithstanding the provisions of
Section 5.6(b), Methode and Stratos shall jointly control the defense of, and
cooperate with each other with respect to defending, any Third-Party Claim with
respect to which each party is claiming that it is entitled to indemnification
under Section 5.1 or 5.2. If either Methode or Stratos fails to defend jointly
any such Third-Party Claim, the other party shall solely defend such Third-Party
Claim and the party failing to defend jointly shall use all commercially
reasonable efforts to cooperate with the other party in its defense of such
Third-Party Claim; provided, however, that neither party may compromise or
settle any such Third-Party Claim without the prior written consent of the other
party, which consent shall not be unreasonably withheld or delayed. All costs
and expenses of either party in connection with, and during the course of, the
joint control of the defense of any such Third-Party Claim shall be initially
paid by the party that incurs such costs and expenses. Such costs and expenses
shall be reallocated and reimbursed in accordance
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with the respective indemnification obligations of the parties at the conclusion
of the defense of such Third-Party Claim.
5.7. PROCEDURE FOR INDEMNIFICATION NOT INVOLVING THIRD-PARTY CLAIMS. If
any Indemnitee desires to assert against an Indemnifying Party any claim for
indemnification under this Article 5 other than a Third-Party Claim (a "Claim"),
the Indemnitee shall deliver to the Indemnifying Party notice of its demand for
satisfaction of such Claim (a "Request"), specifying in reasonable detail the
amount of such Claim and the basis for asserting such Claim. Within thirty (30)
days after the Indemnifying Party has been given a Request, the Indemnifying
Party shall either (i) satisfy the Claim requested to be satisfied in such
Request by delivering to the Indemnitee payment by wire transfer or a certified
or bank cashier's check payable to the Indemnified Party in immediately
available funds in an amount equal to the amount of such Claim, or (ii) notify
the Indemnitee that the Indemnifying Party contests such Claim by delivering to
the Indemnitee a Dispute Notice, stating that the Indemnifying Party objects to
such Claim and specifying in reasonable detail the basis for contesting such
Claim. Any dispute described in clause (ii) of this Section 5.7 shall be subject
to the provisions of Section 6.1.
5.8. EXCLUSIVE REMEDIES. Except for the right to pursue equitable
remedies, the remedies provided in this Article 5 shall be deemed the sole and
exclusive remedies of the parties with respect to the subject matters of the
indemnification provisions of this Article 5.
ARTICLE 6
MISCELLANEOUS
6.1. DISPUTE RESOLUTION. Except as otherwise set forth in the Ancillary
Agreements, resolution of any and all disputes arising from or in connection
with this Agreement, whether based on contract, tort, or otherwise
(collectively, "Disputes"), shall be exclusively governed by and settled in
accordance with the provisions of this Section 6.1. The parties hereto shall use
all commercially reasonable efforts to settle all Disputes without resorting to
mediation, arbitration, litigation or other third party dispute resolution
mechanisms. If any Dispute remains unsettled, the parties hereby agree to
mediate such Dispute using a mediator reasonably acceptable to all parties
involved in such Dispute. If the parties are unable to resolve such dispute
through mediation, each party will be free to commence proceedings for the
resolution thereof. No party shall be entitled to consequential, special,
exemplary or punitive damages.
6.2. SURVIVAL. The representations and warranties contained in this
Agreement shall survive the execution and delivery hereof and the Distribution
until the expiration of all applicable statutes of limitations.
6.3. ENTIRE AGREEMENT. Except as otherwise set forth in this Agreement,
this Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and shall supersede all prior agreements
and understandings, whether written or oral, between the parties with respect to
such subject matter.
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6.4. AUTHORITY. Each of the parties hereto represents to the other
that: (a) it has the corporate power and authority to execute, deliver and
perform this Agreement; (b) the execution, delivery and performance of this
Agreement by it has been duly authorized by all necessary corporate action; (c)
it has duly and validly executed and delivered this Agreement; and (d) this
Agreement is a legal, valid and binding obligation, enforceable against it in
accordance with its terms subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and general equity principles.
6.5. NOTICES. All notices and other communications hereunder shall be
in writing and shall be delivered in person, by telecopy, by express or
overnight mail delivered by a nationally recognized air courier (delivery
charges prepaid), or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties as follows:
If to Methode: Methode Electronics, Inc.
0000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
If to Stratos: Stratos Lightwave, Inc.
0000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Telecopy No.: (000) 000-0000
or to such other address as the party to whom notice is given may have
previously furnished to the others in writing in the manner set forth above. Any
notice or communication delivered in person shall be deemed effective on
delivery or when delivery is refused. Any notice or communication sent by
telecopy or by air courier shall be deemed effective on the first Business Day
at the place at which such notice or communication is received following the day
on which such notice or communication was sent.
6.6. AMENDMENT AND MODIFICATION. This Agreement may not be amended or
modified in any respect except by a written agreement signed by both of the
parties hereto.
6.7. BINDING EFFECT; ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon the parties hereto and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. Except with respect to a merger of either party with another Person,
neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by either party hereto without the prior written consent of
the other party, which consent shall not be unreasonably withheld or delayed.
6.8. THIRD PARTY BENEFICIARIES. The Indemnitees and their respective
successors shall be third party beneficiaries of the indemnification provisions
of Article 5, as applicable, and shall be entitled to enforce those provisions
and in connection with such enforcement shall be subject to Section 5.6, in each
such case as fully and to the same extent as if they were parties to this
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Agreement. Except as provided in the previous sentence, nothing in this
Agreement, express or implied, is intended to or shall confer upon any Person
any legal or equitable right, benefit or remedy of any nature whatsoever under
or by reason of this Agreement, and no Person (other than as provided in the
previous sentence) shall be deemed a third party beneficiary under or by reason
of this Agreement.
6.9. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.10. WAIVER. The observance of any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) by the party entitled to enforce such term, but such waiver shall
be effective only if it is in writing signed by the party against which such
waiver is to be asserted. Unless otherwise expressly provided in this Agreement,
no delay or omission on the part of any party in exercising any right under this
Agreement shall operate as a waiver thereof, nor shall any waiver on the part of
any party of any right under this Agreement operate as a waiver of any other
right under this Agreement nor shall any single or partial exercise of any right
preclude any other or further exercise thereof or the exercise of any other
right under this Agreement. No failure by either party to take any action or
assert any right hereunder shall be deemed to be a waiver of such right in the
event of the continuation or repetition of the circumstances giving rise to such
right unless expressly waived in writing by the party against whom the existence
of such waiver is asserted.
6.11. SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
6.12. REMEDIES. Each of Methode and Stratos shall be entitled to
enforce its rights under this Agreement specifically, to recover damages and
costs (including reasonable attorneys' fees) caused by any breach of any
provision of this Agreement and to exercise all other rights existing in its
favor. Each of Methode and Stratos acknowledges and agrees that under certain
circumstances the breach by Methode or any of its Affiliates or Stratos or any
of its Affiliates of a term or provision of this Agreement will materially and
irreparably harm the other party, that money damages will accordingly not be an
adequate remedy for such breach and that the non-defaulting party, in its sole
discretion and in addition to its rights under this Agreement and any other
remedies it may have at law or in equity, may apply to any court of law or
equity of competent jurisdiction (without posting any bond or deposit) for
specific performance and/or other injunctive relief in order to enforce or
prevent any breach of the provisions of this Agreement.
6.13. PERFORMANCE. Each of the parties hereto shall use all
commercially reasonable efforts to cause to be performed all actions, agreements
and obligations set forth herein to be performed by any Affiliate of such party.
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6.14. HEADINGS. The headings of the sections and subsections of this
Agreement are inserted for convenience of reference only and shall not
constitute a part hereof.
6.15. GOVERNING LAW. This Agreement shall be governed, construed and
enforced in accordance with the internal laws of the State of Illinois,
excluding any choice of law rules which may direct the application of the laws
of another jurisdiction.
6.16. CONSENT TO EXCLUSIVE JURISDICTION. Any action, suit or proceeding
arising out of any claim that the parties cannot settle through good faith
negotiations shall be heard and determined in any Illinois state or federal
court sitting in Chicago. Each of the parties hereto hereby irrevocably and
unconditionally: (i) submits to the exclusive jurisdiction of any Illinois state
or federal court sitting in Chicago for any such action, suit or proceeding;
(ii) waives, and agrees not to plead or to make, any objection to the venue of
any such action, suit or proceeding in the above-named courts; (iii) waives, and
agrees not to plead or to make, any claim that any such action, suit or
proceeding brought in the above-named courts has been brought in an improper or
otherwise inconvenient forum; and (iv) waives, and agrees not to plead or to
make, any claim that its is not subject personally to the jurisdiction of the
above-named courts.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first written above.
METHODE ELECTRONICS, INC.
By:
----------------------------------
Xxxxxxx X. XxXxxxxx
Chairman
STRATOS LIGHTWAVE, INC.
By:
----------------------------------
Xxxxx X. XxXxxxxx
President and
Chief Executive Officer
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