EXHIBIT 10.2
Conformed Copy
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STOCKHOLDERS AGREEMENT
DATED AS OF JUNE 12, 1998
AND EFFECTIVE AS OF THE EFFECTIVE TIME
BY AND AMONG
WAVETEK CORPORATION
AND
THE STOCKHOLDERS LISTED
ON THE SIGNATURE PAGES HERETO
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TABLE OF CONTENTS
ARTICLE I
ARTICLE DEFINITIONS
Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
GOVERNANCE
2.1 Board of Directors. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.2 Approval of Certain Transactions. . . . . . . . . . . . . . . . . . . . .12
2.3 Quorum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
2.4 Voting Rights of Stockholders . . . . . . . . . . . . . . . . . . . . . .15
2.5 Stockholder Votes . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
2.6 Certificate and Bylaws. . . . . . . . . . . . . . . . . . . . . . . . . .15
2.7 Independent Auditors. . . . . . . . . . . . . . . . . . . . . . . . . . .15
2.8 Stockholder Decisions . . . . . . . . . . . . . . . . . . . . . . . . . .16
ARTICLE III
TRANSFER RESTRICTIONS;
CERTAIN PERMITTED TRANSFERS;
INVOLUNTARY TRANSFERS
3.1 Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
3.2 Sale of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
3.3 Certain Permitted Transfers . . . . . . . . . . . . . . . . . . . . . . .16
3.4 Pledges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
3.5 Consent of Directors. . . . . . . . . . . . . . . . . . . . . . . . . . .18
ARTICLE IV
RIGHT OF FIRST OFFER: TAG-ALONG RIGHTS;
CERTAIN PURCHASE RIGHTS
4.1. Right of First Offer. . . . . . . . . . . . . . . . . . . . . . . . . . .18
4.2. Tag-Along Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
4.3 Bring-Along Right . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
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ARTICLE V
REGISTRATION RIGHTS
5.1 Registration on Request . . . . . . . . . . . . . . . . . . . . . . . . .21
5.2 Incidental Registration . . . . . . . . . . . . . . . . . . . . . . . . .23
5.3 Registration Procedures . . . . . . . . . . . . . . . . . . . . . . . . .26
5.4 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
ARTICLE VI
MISCELLANEOUS
6.1 Legends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
6.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
6.3 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
6.4 Entire Agreement; Amendments and Waivers. . . . . . . . . . . . . . . . .35
6.5 Successors, Assigns and Transferees . . . . . . . . . . . . . . . . . . .36
6.6 Consent to Specific Performance . . . . . . . . . . . . . . . . . . . . .37
6.7 Variations in Pronouns. . . . . . . . . . . . . . . . . . . . . . . . . .37
6.8 Effectiveness; Termination. . . . . . . . . . . . . . . . . . . . . . . .37
6.9 CHOICE OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
6.10 Jurisdiction; Waivers . . . . . . . . . . . . . . . . . . . . . . . . . .37
6.11 WAIVER OF JURY TRIAL. . . . . . . . . . . . . . . . . . . . . . . . . . .38
6.12 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . . . .38
6.13 Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . .38
6.14 Inspection and Compliance with Law. . . . . . . . . . . . . . . . . . . .38
6.15 Termination of Prior Agreement. . . . . . . . . . . . . . . . . . . . . .38
6.16 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
6.17 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
6.18 Binding Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . .39
LIST OF ANNEXES
Annex 1 -- Chairman Roles and Responsibilities (Section 2.1(h))
Annex 2 -- Chief Executive Officer Roles and Responsibilities (Section 2.1(h))
Annex 3 -- Form of Supplemental Agreement (Section 3.1)
Annex 4 -- Stockholder Address and Contact (Section 6.2)
Annex 5 -- Board Approval Policy
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STOCKHOLDERS AGREEMENT, dated as of June 12, 1998 and effective as
of the Effective Time (defined herein) (this "Agreement"), by and among
Wavetek Corporation, a Delaware corporation (the "COMPANY"), DLJ Merchant
Banking Partners II, L.P. ("DLJMB"), DLJ Offshore Partners II, C.V., DLJ
Diversified Partners, L.P., DLJMB Funding II, Inc., UK Investment Plan 1997
Partners, DLJ First ESC L.L.C., DLJ EAB Partners, L.P., DLJ Millennium
Partners, L.P., DLJ Offshore Partners II, C.V. and UK Investment Plan 1997
Partners (collectively, and together with DLJMB, the "DLJ INVESTORS"), Green
Equity Investors II, L.P. ("GEI"), Xxxxxxxx UK Venture Fund III, L.P.,
Xxxxxxxx UK Venture Fund III, L.P.2, Xxxxxxxx UK Venture Fund III Trust
(collectively, "XXXXXXXX"), Yokogawa Electric Corporation ("YOKOGAWA", and
together with the DLJ Investors, GEI and Xxxxxxxx, the "INSTITUTIONAL
STOCKHOLDERS"), Xx. Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxxx X.
Xxxxxxx GRAT 1, Xxxxxxx X. Xxxxxxx GRAT 2 and Xxxxxxx X. Xxxxxxx GRAT
(collectively, "XXXXXXX"), the Wavetek management stockholders listed on the
signature pages hereto (the "MANAGEMENT STOCKHOLDERS"), Xxxxxxxx Xxxxxx, a
resident of the Federal Republic of Germany, and Xxxxxx Xxxxxx, a resident of
the Federal Republic of Germany (the "WANDEL STOCKHOLDERS"), Xxxxx
Xxxxxxxxxx, a resident of the Federal Republic of Germany, Xxxxxx Xxxxxxxxxx,
a resident of the Federal Republic of Germany, and Xxxxxxxx Xxxxxxxxxx, a
resident of the Federal Republic of Germany (the "GOLTERMANN STOCKHOLDERS"),
Xxxxx Xxxxxx, a resident of the Federal Republic of Germany ("XXXXXX") and
Hannover Finanz W&G Beteiligungsgesellschaft mbH ("HF"). The Institutional
Stockholders, the Management Stockholders and Xxxxxxx are collectively
referred to as the "WAVETEK STOCKHOLDERS" and the Wandel Stockholders, the
Goltermann Stockholders , Xxxxxx and HF and collectively referred to as the
"WG STOCKHOLDERS". All parties to this Agreement, with the exception of the
Company and WG, are collectively referred to as the "STOCKHOLDERS".
RECITALS:
WHEREAS, pursuant to the terms of the Exchange and Merger Agreement
dated as of June 12, 1998 (the "EXCHANGE AND MERGER AGREEMENT") by and among
the Company, Wandel & Goltermann Management Holding GmbH, a German limited
liability company ("WG") and the Stockholders, WG will become a wholly owned
subsidiary of the Company and the WG Stockholders will become stockholders of
the Company (the "MERGER");
WHEREAS, the Company and the Stockholders desire to enter into this
Agreement for the purpose of regulating governance of the Company and certain
aspects of the Stockholders' relationships with regard to each other and the
Company subsequent to the Effective Time (except that, to the extent that
either the Exchange and Merger Agreement or the Side Letter entered into by
the Company and WG in connection therewith require or contemplate action by
the Board of the Company (or any committee thereof) prior to the Effective
Time, the provisions of this Agreement addressing Board and committee
composition, conduct and action shall be operative prior to the Effective
Time); and
WHEREAS, this Agreement is intended to supersede and replace the
Stockholders' Agreement dated as of June 11, 1997 between the Company and
certain Wavetek Stockholders and the Registration Rights Agreement dated as
of June 11, 1997 between the Company and certain Wavetek Stockholders
(collectively, the "PRIOR AGREEMENT").
NOW THEREFORE, in consideration of the mutual covenants hereinafter
set forth, the parties agree as follows from and after the Effective Time
(except that, to the extent that either the Exchange and Merger Agreement or
the Side Letter entered into by the Company and WG in connection therewith
require or contemplate action by the Board of the Company (or any committee
thereof) prior to the Effective Time, the provisions of this Agreement
addressing Board and committee composition, conduct and action shall be
operative prior to the Effective Time):
ARTICLE I
DEFINITIONS
As used herein, the terms below shall have the following meanings.
Any such term, unless the context otherwise requires, may be used in the
singular or plural, depending upon reference.
"AFFILIATE" shall mean, with respect to any Person, (i) any Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person, (ii) any natural person who is
related by blood or marriage to such Person, (iii) any trust of which there
are
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no principal beneficiaries other than such Person or Affiliates of such
Person, (iv) any charitable foundation over which such Person has
discretionary authority or (v) any trust or investment fund administered or
managed by such Person or by an Affiliate of such person as defined in any of
clauses (i), (ii), (iii) or (iv) hereof. For purposes of this definition,
ownership of 10% or more of the voting common equity of a Person shall be
deemed to be control of such Person.
"BANK DEBT" shall mean any indebtedness incurred pursuant to loans from
any financial institution.
"BENEFICIAL OWNER" shall have the meaning set forth in Rule 13d-3 under
the Exchange Act.
"BOARD" shall be the Board of Directors of the Company.
"BOARD APPROVAL POLICY" shall mean the Board approval policy attached as
Annex 5 hereto specifying the matters requiring a simple majority approval of
the Board, matters delegated to the Executive Committee, the level of Capital
Expenditures and capital leases requiring Supermajority approval and the
matters within the authority of the Chief Executive Officer.
"BRING-ALONG RIGHT" shall have the meaning set forth in Section 4.3.
"BUSINESS DAY" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in the City of New
York are authorized or obligated by law or executive order to close.
"BYLAWS" shall mean the bylaws of the Company.
"CAPITAL EXPENDITURES" means all direct and indirect expenditures
(including capitalized interest) which are required to be included in
property, plant or equipment or similar tangible property account, including,
without limitation, additions to equipment and leasehold improvements, on a
consolidated balance sheet prepared in accordance with US GAAP.
"CAPITAL LEASE OBLIGATION" means the obligation to pay rent or other
payment amounts under a lease of (or other debt
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arrangements conveying the right to use) real or personal property which is
required to be classified and accounted for as a capital lease or a liability
on the face of a balance sheet in accordance with US GAAP.
"CERTIFICATE" shall mean the Restated Certificate of Incorporation of
the Company.
"CHIEF EXECUTIVE OFFICER" shall mean the chief executive officer of the
Company.
"COMMON PLAN" shall mean any explicit or tacit agreement, arrangement or
understanding, whether written or otherwise, to Transfer any securities to
any Person.
"COMMON STOCK" shall mean the Common Stock, $.01 par value per share, of
the Company.
"COMPENSATION COMMITTEE" shall have the meaning set forth in Section
2.1(f).
"DLJSC" shall mean Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation.
"DIRECTOR" shall mean directors of the Board of Directors of the Company.
"EFFECTIVE TIME" shall have the meaning set forth in Section 7.1 of the
Exchange Agreement.
"EMPLOYEE BENEFIT PLAN" means any stock option or other incentive-based
plan of the Company or any of its subsidiaries that is existing at the
Effective Time or approved by a Supermajority.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, and the
rules and regulations promulgated thereunder, as the same may be amended from
time to time.
"EXECUTIVE COMMITTEE" shall have the meaning set forth in Section 2.1(f).
"GOOD REASON" shall mean (i) any event, regardless of when such event
occurred, with respect to a person described in Item 401(f)(1) through (6) of
Regulation S-K of the United States Securities and Exchange Commission that
the Board
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determines to be material to the ability or integrity of such person, (ii)
any material affiliation with a competitor of the Company or (iii) any other
reason, similar in effect and order of magnitude as items (i) and (ii) above,
that is materially adverse to the interests of the Company.
"INDEMNIFIED PARTY" shall have the meaning set forth in Section 5.4.
"INDEPENDENT DIRECTOR" shall mean any director who is not an officer or
employee of the Company or an Affiliate of any DLJ Investor, GEI, HF,
Xxxxxxx, any Xxxxxx Stockholder or any Goltermann Stockholder.
"INITIAL PUBLIC OFFERING" shall mean the initial underwritten offering
by the Company of securities of the Company registered with the SEC under the
Securities Act after which the Common Stock is included for quotation on the
Nasdaq National Market or listed on a national securities exchange in
conjunction with a dual listing in Europe (preferably the Frankfurt
exchange), which Initial Public Offering shall be approved by Supermajority
Vote of the persons who will become members of the Board of the Company
pursuant to Section 2.1 hereof at the Effective Time.
"MATERIAL TRANSACTION" means a material transaction in which the Company
or any of its subsidiaries proposes to engage or is engaged, including a
purchase or sale of assets or securities, financing, merger, consolidation,
tender offer or other material corporate development, and with respect to
which the Board reasonably has determined in good faith that compliance with
this Agreement may reasonably be expected to either materially interfere with
the Company's or such Subsidiary's ability to consummate such transaction in
a timely fashion or require the Company to disclose material, non-public
information or such material corporate development prior to such time as it
would otherwise be required to be disclosed.
"OFFERING NOTICE" shall mean the written notice that a Selling
Stockholder shall give to each Stockholder not less than 30 days prior to
each Proposed Sale, setting forth: (A) the name of the Selling Stockholder
and the number of Shares proposed to be sold, (B) the name and address of the
proposed purchaser, (C) the proposed per share purchase price (which must be
payable in cash, cash equivalents or marketable
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securities) and the terms and conditions of payment offered by such proposed
purchaser and (D), if applicable, that the proposed purchaser has been
informed of the Tag-Along Right provided for in Section 4.2 and has agreed to
purchase Shares subject to such Tag-Along Right.
"OTHER WAVETEK STOCKHOLDERS" refers to the Stockholders listed under
such heading on the signature pages hereto.
"PERMITTED TRANSFER" shall have the meaning set forth in Section 3.3.
"PERSON" shall be construed broadly and shall include an individual, a
partnership, a corporation, an association, a joint stock company, a limited
liability company, a trust, a joint venture, an unincorporated organization
and a governmental entity or any department, agency or political subdivision
thereof or any group comprised of such individuals or entities.
"POST-OFFERING REGISTRATION RIGHT" shall have the meaning set forth in
Section 5.1.
"PROPOSED SALE" shall have the meaning set forth in Section 4.1.
"PROPOSING STOCKHOLDERS" shall have the meaning set forth in Section 4.3.
"PURCHASE NOTICE" shall mean written notice by a Stockholder to all
Stockholders and the Company electing or not electing to purchase any or all
Shares of such Selling Stockholder pursuant to a Right of First Offer.
"REFUSAL NOTICE" shall mean written notice by a Stockholder or the
Company, as the case may be, to all Stockholders and/or the Company, as
appropriate, electing not to purchase Shares from a Selling Stockholder
pursuant to a Right of First Offer.
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance with Sections 5.1 and 5.2 of this Agreement,
including without limitation, (i) all
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SEC and securities exchange or National Association of Securities Dealers,
Inc. registration and filing fees, (ii) all fees and expenses on complying
with securities or blue sky laws (including fees and disbursements of counsel
for the underwriters in connection with blue sky qualifications of the
securities), (iii) all printing, messenger and delivery expenses, (iv) all
fees and expenses incurred in connection with the listing of the securities
on any securities exchange pursuant to Sections 5.1 and 5.2, (v) the fees and
disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits and/or "comfort"
letters required by or incident to such performance and compliance, (vi) the
reasonable fees and disbursements of one counsel, other than the Company's
counsel, selected by Stockholders holding a majority of the securities being
registered by Stockholders to represent all holders of the securities being
registered in connection with each such registration (it being understood
that any Stockholder may, at its own expense, retain separate counsel to
represent it in connection with such registration), (vii) any fees and
disbursements of underwriters customarily paid by the issuers or sellers of
securities, and the reasonable fees and expenses of any special experts
retained in connection with the requested registration, but excluding
underwriting discounts and commissions and transfer taxes, if any.
"REGISTRATION STATEMENT" shall mean a registration statement filed with
the Securities and Exchange Commission on which it is permissible to register
securities for sale to the public under the Securities Act.
"RIGHTS" shall mean any rights to acquire equity securities of the
Company or securities convertible into, or in exchange for, such equity
securities of the Company.
"RIGHT OF FIRST OFFER" shall have the meaning set forth in Section 4.1.
"SEC" shall mean the Securities and Exchange Commission.
"SELLING STOCKHOLDER" shall have the meaning set forth in Section 4.1.
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"SECURITIES ACT" shall mean the Securities Act of 1933, and the rules
and regulations promulgated thereunder, as the same may be amended from time
to time.
"SHARES" shall mean shares of Common Stock.
"SPECIAL STOCKHOLDER APPROVAL" shall have the meaning set forth in
Section 2.4(b).
"SUPERMAJORITY VOTE" shall mean the approval of six Directors.
"TAG-ALONG NOTICE" shall have the meaning set forth in Section 4.2.
"TAG-ALONG RIGHT" shall have the meaning set forth in Section 4.2.
"TAG-ALONG STOCKHOLDERS" shall have the meaning set forth in Section 4.2.
"TOTAL VOTING POWER" shall mean the capital stock which ordinarily has
voting power for the election of Directors of the Company, whether at all
times or only so long as no senior class of securities has such voting power
by reason of any contingency.
"TRANSFER" shall mean to directly or indirectly sell, give, transfer,
assign, pledge, hypothecate or otherwise dispose of, or to contract or agree
to do any of the foregoing.
"US GAAP" shall mean generally accepted accounting principles in the
United States.
"WAVETEK DIRECTORS" shall have the meaning set forth in Section 2.1.
"WAVETEK HOLDER" shall have the meaning set forth in Section 4.1.
"WG DIRECTORS" shall have the meaning set forth in Section 2.1.
"XX XXXXXX" shall have the meaning set forth in Section 4.1.
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ARTICLE II
GOVERNANCE
2.1 BOARD OF DIRECTORS.
(a) The Board shall be comprised of nine Directors, who shall be
designated as follows: (i) one Director shall be appointed by the Wandel
Stockholders; (ii) one Director shall be appointed by the Goltermann
Stockholders; (iii) one Director shall be appointed by HF; provided that if
HF beneficially owns less than 4% of the outstanding shares of Common Stock
and the Wandel Stockholders and the Goltermann Stockholders collectively
beneficially own at least 12% of the outstanding shares of Common Stock, such
Director shall be appointed jointly by the Wandel Stockholders and the
Goltermann Stockholders; (iv) one Independent Director shall be appointed
jointly by the Wandel Stockholders, the Goltermann Stockholders and HF so
long as either the Wandel Stockholders or the Goltermann Stockholders
beneficially own at least 4% of the outstanding shares of Common Stock; (v)
one Director and one Independent Director shall be appointed by Xxxxxxx; (vi)
one Director shall be appointed by DLJMB; (vii) one Director shall be
appointed by GEI; and (viii) one Director shall be the Chief Executive
Officer. Directors appointed by the Wandel Stockholders, the Goltermann
Stockholders and/or HF shall be referred to as the "WG DIRECTORS" and
Directors appointed by Xxxxxxx, DLJMB and/or GEI shall be referred to as the
"WAVETEK DIRECTORS."
As of the Effective Time, the Directors designated under the above clauses
shall be as follows: clause (i) shall be Xxxxxxxx Xxxxxx; clause (ii) shall
be Xxxxx Xxxxxxxxxx; clause (iii) shall be Joachim Simmroo; clause (iv) shall
be Xxxxxxx Xxxxxxx; clause (v) shall be Xxxxxxx X. Xxxxxxx and Xxxxxxx Xxxxx;
clause (vi) shall be Xxxxx X. Xxxxxxxx; clause (vii) shall be Xxxxx Xxxxx;
and clause (viii) shall be Xxxxx Xxxxxx.
(b) The Independent Directors shall be "independent directors"
(or the legal equivalent) under the rules and regulations of the New York
Stock Exchange, Inc. or other principal securities exchange on which the
Common Stock is listed or traded.
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(c) If, at any time that this Agreement is in effect, a Director
has been designated by a Stockholder or Stockholders and elected pursuant to
this Section 2.1 and such Stockholder or Stockholders request that such
Director be removed (with or without cause) by written notice thereof to the
other Stockholders, then each Stockholder shall vote all Shares owned or held
of record by such Stockholder to effect such removal upon such notice.
(d) If a vacancy is created on the Board at any time by reason
of death, disability, retirement, resignation, removal or otherwise, the
Stockholder or Stockholders entitled to designate such Director shall be
entitled to designate a successor Director to fill the vacancy created
thereby, and each other Stockholder shall vote all Shares owned or held of
record by such Stockholder and cause the Director(s) designated by such
Stockholder(s) to elect such successor Director, provided that (A), if such
proposed successor Director is an employee holding a management position with
the Company or its principal German subsidiary (WG or its successor), such
person has been approved by a Supermajority Vote or (B) such person has not
been disapproved by the Board for Good Reason.
(e) In the event that the Chief Executive Officer shall be
removed under Section 2.2(j) or shall otherwise be unable to serve due to
death, resignation, disability or otherwise, then each of the WG Directors
and the Wavetek Directors shall have the right to nominate one or more
successor candidate and the Stockholders shall elect one of such successor
candidates designated by the Board in accordance with Section 2.2(j);
provided, however, that pending appointment of the new Chief Executive
Officer, the Board, by a majority vote, will appoint an interim Chief
Executive Officer; provided, further, that if a Supermajority of the Board
has not approved a candidate to fill such vacancy for a period of 26 weeks,
then such vacancy shall be filled by a successor candidate nominated by
Xxxxxxx X. Xxxxxxx, Xxxxxxxx Xxxxxx and Xxxxx Xxxxxxxxxx, acting unanimously.
(f) The Board shall appoint an audit committee (the "AUDIT
COMMITTEE"), a compensation committee (the "COMPENSATION COMMITTEE") and an
executive committee (the "EXECUTIVE COMMITTEE") at the Effective Time.
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As of the Effective Time, the Audit Committee shall be comprised of Xxxxxxx
Xxxxx, Xxxxxxxx Xxxxxx and Xxxxx X. Xxxxxxxx, and the Compensation Committee
shall be comprised of Xxxxxxxx Xxxxxx (who shall serve as Chairman), Xxxxxxx
X. Xxxxxxx and Xxxxx Xxxxx. The Compensation Committee and the Audit
Committee shall be delegated such authority as is normal and customary for a
U.S. corporation and shall recommend matters to the Board of Directors for
approval.
(g) The Executive Committee shall be comprised of three
Directors. The quorum required for action by such committee shall be three
Directors and unanimous consent shall be required for all actions taken by
it. The Executive Committee shall be delegated such authority as is normal
and customary for a U.S. corporation and as set forth in the Board Approval
Policy, but shall not be delegated authority to approve matters that require
a Supermajority Vote (as defined in Section 2.2). If any WG Director serving
as a member of the Executive Committee ceases to serve on such committee, the
Director appointed to replace such person as a member of the Executive
Committee shall be designated by the WG Directors. If any Wavetek Director
serving as a member of the Executive Committee ceases to serve on such
committee, the Director appointed to replace such person as a member of the
Executive Committee shall be designated by the Wavetek Directors.
As of the Effective Time, the Executive Committee shall be comprised of
Xxxxxxx X. Xxxxxxx (who shall be Chairman), Xxxxxxxx Xxxxxx and Xxxxx Xxxxxx.
(h) At the Effective Time, the Chairman of the Board shall be
Xxxxxxx X. Xxxxxxx (with the roles and responsibilities set forth on Annex
1), the Vice Chairman of the Board and the Chairman of the Compensation
Committee shall be Xxxxxxxx Xxxxxx and the Chief Executive Officer shall be
Xxxxx Xxxxxx (with the roles and responsibilities set forth on Annex 2). The
Company shall employ Xxxxx Xxxxxx as Chief Executive Officer pursuant to
employment agreements agreed to between the Company and such individual prior
to the Effective Time. Xxxxxxx X. Xxxxxxx shall not be an executive officer
of the Company.
(i) The rights of any of the Wandel Stockholders, the Goltermann
Stockholders, HF, Xxxxxxx, DLJMB and GEI to designate one or more Directors
pursuant to this Agreement will terminate if such Stockholder and its
Affiliates cease to
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beneficially own at least 4% of the outstanding shares of Common Stock
(whereupon such Stockholder shall be referred to as a "Disqualified
Stockholder"); provided, however, that the WG Stockholders (excluding any
Disqualified Stockholder), as a group, and the Wavetek Stockholders
(excluding any Disqualified Stockholder), as a group, each will have the
right to appoint (a) one or more replacement WG Directors or Wavetek
Directors, respectively, so long as they, together with their Affiliates,
beneficially own as a group in excess of 30% of the outstanding shares of
Common Stock; (b) one or more replacement WG Directors or Wavetek Directors,
respectively, such that the total number of Directors appointed by such group
does not exceed 3 so long as they beneficially own as a group 30% or less but
in excess of 20% of the outstanding shares of Common Stock; and (c) one or
more replacement WG Directors or Wavetek Directors, respectively, such that
the total number of Directors appointed by such group does not exceed 2 so
long as they beneficially own as a group 20% or less but in excess of 10% of
the outstanding shares of Common Stock.
(j) HF shall be entitled to bring one non-voting observer to each
meeting of the Board of Directors. During the one year period following the
Effective Time and thereafter until the Board determines otherwise, the WG
Directors shall be entitled to retain, at the expense of the Company for the
one year period following the Effective Time and thereafter at their expense,
a legal advisor to advise them with respect to matters relating to the
Company, and a representative of such legal advisor shall be permitted to
attend meetings of the Board unless a majority of the members of the Board
determine that such representative should not participate in any particular
deliberations of the Board.
2.2 APPROVAL OF CERTAIN TRANSACTIONS. In addition to any approval of
the Board required by applicable law and the Board Approval Policy, the
following transactions shall require a Supermajority Vote unless such action
may be taken by the Board by simple majority vote, by the Executive Committee
or by the Chief Executive Officer in accordance with the Board Approval
Policy:
(a) any merger, consolidation or liquidation of the Company or
any of its subsidiaries;
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(b) any purchase or other acquisition by the Company or any of
its subsidiaries of, in one or a series of transactions, any other Person;
(c) any joint venture, partnership or establishment of
non-wholly owned subsidiaries;
(d) any significant change in or expansion of the business of
the Company or any of its subsidiaries outside of the business conducted by
the Company and its subsidiaries (including WG) at the Effective Time;
(e) any sale, lease, exchange or other disposition of a
substantial part of the assets, including a line of business, division or
subsidiary of the Company;
(f) any incurrence by the Company or its subsidiaries of
indebtedness, or any mortgage, pledge or grant of lien or security interest
in assets of the Company or its subsidiaries, in each case in an amount in
excess of $10,000,000;
(g) any Capital Expenditures or Capital Leases in excess of the
amounts specified in the Board Approval Policy;
(h) any issuance or sale of securities by the Company or any of
its subsidiaries, including any Initial Public Offering of Common Stock, any
registration of securities under the Securities Act of 1933 and any grant of
registration rights, PROVIDED that any issuance or sale of securities upon
exercise of stock options or pursuant to any Employee Benefit Plan (and,
following the Initial Public Offering, the registration of any securities in
connection therewith) shall not be subject to the voting requirements of this
Section 2.2;
(i) any payment of dividends by the Company and any repurchase
or redemption of securities or debt of the Company, PROVIDED that (i)
repurchases of Common Stock and stock options from employees of the Company,
(ii) payment and prepayment of Bank Debt and (iii) redemptions of other debt
in accordance with its terms shall not be subject to the voting requirements
of this Section 2.2;
(j) the appointment or removal of the Chief Executive Officer or
Chairman of the Board or any changes in the roles or responsibilities of the
Chief Executive Officer or the Chairman of the Board as set forth in Annex 1
and Annex 2;
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(k) any agreement or transaction between the Company and any
Affiliates not in the ordinary course of business or involving consideration
(whether cash, securities, property or otherwise) in excess of $5 million;
PROVIDED, HOWEVER, that the foregoing shall not restrict (A) transactions
between the Company and any of its subsidiaries, or among any of such
subsidiaries, (B) payments or advances to employees of the Company or its
subsidiaries in the ordinary course of business, (C) transactions pursuant to
any Employee Benefit Plan, (D) transactions contemplated by this Agreement,
the Exchange Agreement or agreements (including the issuance of the notes,
the cancellation of loans of stockholders of WG, the entering into of
employment agreements with Xxxxxxx X. Xxxxxxx and Xxxxx Xxxxxx and the
issuance of new options to purchase Common Stock) entered into in connection
with the Exchange and (E) transactions pursuant to any arrangements existing
on the date hereof;
(l) any action to amend or repeal any provision of the
Certificate or Bylaws, including any change in the size of the Board;
(m) removal or appointment of the Company's independent
accountants and any material change to the Company's accounting policies or
practices;
(n) any adoption or amendment of employment contracts or benefit
plans relating to officers of the Company or its subsidiaries;
(o) any approval of amendments to this Agreement;
(p) any approval of the annual budget of the Company;
(q) exercise of the right of first offer provided in Section 4.1;
(r) approval of the Board Approval Policy or any amendment or
modification thereto;
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(s) approval or disapproval of a successor Director pursuant to
Section 2.1(d); and
(t) approval of anti-takeover measures.
2.3 QUORUM. At any time this Agreement is in effect, a quorum of the
Board shall consist of six Directors.
2.4 VOTING RIGHTS OF STOCKHOLDERS.
(a) The Common Stock shall have one vote per share and no
cumulative voting.
(b) Ordinary corporate actions shall require a majority vote of
all Stockholders. At least 662/3% of all Stockholders shall determine
whether to approve: (i) any merger, consolidation, liquidation or sale of all
or substantially all of the assets of the Company and (ii) any action to
amend or repeal any provision of the Certificate or Bylaws (the "SPECIAL
STOCKHOLDER APPROVAL").
2.5 STOCKHOLDER VOTES. Each of the Stockholders agrees to vote all of
its shares of Common Stock (i) following any Stockholder vote pursuant to
Section 2.4(b), "FOR" any such matter receiving Special Stockholder Approval
pursuant to Section 2.4(b), (ii) following any Stockholder vote pursuant to
Section 2.4(b), "AGAINST" any such matter failing to receive Special
Stockholder Approval in accordance with Section 2.4(b) and (iii) for each of
the designees appointed to the Board pursuant to this Agreement.
2.6 CERTIFICATE AND BYLAWS. (a) At the Effective Time, the Certificate
and the Bylaws shall be amended and restated to give effect to the provisions
set forth in this Agreement.
(b) The Stockholders further agree to cause the Certificate to
be amended to change the name of the Company to a name agreed to by the
Executive Committee at or prior to the Effective Time.
2.7 INDEPENDENT AUDITORS. The independent auditors for the fiscal year
ending September 30, 1999 shall be Ernst & Young LLP, with Xxxxxx Xxxxxxxx
LLP performing approximately 50% of the work. The Audit Committee shall
select and the Board shall approve the independent auditors for the Company
for each year thereafter.
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2.8 STOCKHOLDER DECISIONS. Any decision to be made as a group by the
Wavetek Stockholders under this Agreement shall be made by Wavetek
Stockholders owning more than 50% of all the Common Stock owned by the
Wavetek Stockholders. Any decision to be made as a group by the WG
Stockholders under this Agreement shall be made by WG Stockholders owning
more than 50% of all the Common Stock owned by the WG Stockholders.
ARTICLE III
TRANSFER RESTRICTIONS;
CERTAIN PERMITTED TRANSFERS;
INVOLUNTARY TRANSFERS
3.1 TRANSFERS. Any Transfer of Common Stock in violation of this
Agreement shall be void AB INITIO. Any Transfer of a majority of the equity
interest in an Affiliate of a Stockholder that first acquired shares of
Common Stock as a result of a Permitted Transfer shall be deemed to be a
Transfer of Shares by such Stockholder.
3.2 SALE OF CONTROL. Each Stockholder, acting alone or together with
any other stockholder or stockholders pursuant to a Common Plan, shall not
Transfer any securities of the Company to any Person if, as a result of such
Transfer, such Person would become the Beneficial Owner, directly or
indirectly, of securities of the Company representing 40% or more of the
Total Voting Power of the Company, UNLESS such Person offers to purchase all
outstanding equity securities from all Stockholders at the same price and on
the same terms as the selling Stockholder. This Section 3.2 shall not apply
to Transfers of any securities of the Company by and among any Stockholder
pursuant to an exercise of a Right of First Offer pursuant to Section 4.1.
3.3 CERTAIN PERMITTED TRANSFERS. None of the restrictions contained in
this Agreement with respect to Transfers of Shares shall apply:
(i) to any gift or sale of Shares by any Stockholder to an
Affiliate of such Stockholder;
(ii) to any Transfer to a legal representative, conservator or
guardian of a Stockholder if such Stockholder
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becomes mentally incompetent or otherwise become incapable of taking care of
his or her business affairs;
(iii) to any Transfer by a Stockholder who is a natural person by
will, intestacy laws or the laws of descent or survivorship;
(iv) to any Transfer by a Stockholder who is a natural person by
the laws of community property or otherwise pursuant to a court order upon
the divorce of such Stockholder; or
(v) to a Transfer from the custodian or trustee of an individual
retirement account or other self-directed employee benefit plan to the
beneficiary of such account or plan provided that in all events such
beneficiary will at all times control the voting and transfer rights of the
subject Shares and shall become a signatory hereto;
PROVIDED, HOWEVER, that in the case of any Transfer described in one or more
of clauses (i) through (v), inclusive, above (each a "PERMITTED TRANSFER" and
collectively the "PERMITTED TRANSFERS" and the transferee being a "PERMITTED
TRANSFEREE"):
(A) each Permitted Transferee shall have executed and
delivered to the Company, as a condition precedent to any Transfer of Shares,
a written agreement in substantially the form of Annex 3 hereto confirming
that such Transferee agrees to be bound by the terms of this Agreement and
shall have submitted to the Company such evidence as the Company may
reasonably request to demonstrate that such Transfer is a Permitted Transfer;
and
(B) the certificates issued to the Permitted Transferee
which represent the Shares so Transferred shall bear the legends provided in
Section 6.1.
3.4 PLEDGES. None of the restrictions contained in this Agreement with
respect to Transfers of Shares shall apply to the Transfer of a bona fide
pledge of Shares by a Stockholder to a commercial bank, savings and loan
institution or any other lending institution as security for any indebtedness
of such Stockholder to such lender, if prior to any such pledge, the pledgee
shall deliver to the Company its written agreement (which shall expressly be
stated to be for the benefit of the Company and each Stockholder), in form
and substance
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satisfactory to the Company, that upon any foreclosure or similar event, the
Transfer occasioned thereby will be subject to the Right of First Offer
(hereinafter defined) (but not the Tag-Along Right (hereinafter defined)),
and, upon acquiring any Share pursuant to such Transfer, such pledgee shall
assume and be bound by all the terms of this Agreement.
3.5 CONSENT OF DIRECTORS. Notwithstanding anything to the contrary
contained in this Agreement, a Stockholder may Transfer Shares (and the
Company shall reflect on its books such Transfer) if the specific terms of
such Transfer and the Transferee thereof shall, prior to the effectiveness of
such Transfer, have been approved by a unanimous vote of all or Directors at
a meeting of all Directors duly called and held or acting by written consent.
ARTICLE IV
RIGHT OF FIRST OFFER: TAG-ALONG RIGHTS;
CERTAIN PURCHASE RIGHTS
4.1. RIGHT OF FIRST OFFER.
(a) GENERAL. If a Stockholder ("SELLING STOCKHOLDER") proposes
to sell or Transfer Shares of such Stockholder to a third party (a "PROPOSED
SALE"), the Selling Stockholder must first offer such Shares to other
Stockholders and the Company (the "RIGHT OF FIRST OFFER") at the same price
and on the same terms and conditions as the Proposed Sale (except that any
Stockholder exercising its Right of First Offer shall be entitled to pay cash
for the purchase price) in accordance with Sections 4.1, 4.2 and 4.3:
(i) the consideration for the Proposed Sale shall consist solely
of cash, cash equivalents or marketable securities;
(ii) the Selling Stockholder shall deliver an Offering Notice to
the Company and each of the Stockholders;
(iii) if such Selling Stockholder is any of the Wandel
Stockholders, the Goltermann Stockholders, Xxxxxx or HF, or any party
acquiring such Shares from such Selling Stockholders pursuant to a Permitted
Transfer (each such
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Stockholder who, together with its Affiliates, beneficially owns 4% or more
of the outstanding shares of Common Stock, a "XX XXXXXX," and collectively,
the "WG HOLDERS"), the other WG Holders shall have a pro rata Right of First
Offer on such Shares;
(iv) if such Selling Stockholder is any of Xxxxxxx, DLJMB, GEI or
an Other Wavetek Stockholder, or any party acquiring such Shares from such
Selling Stockholder pursuant to a Permitted Transfer (each such Stockholder
who, together with its Affiliates, beneficially owns 4% or more of the
outstanding shares of Common Stock, a "WAVETEK HOLDER", and collectively the
"WAVETEK HOLDERS"), the other Wavetek Holders shall have a pro rata Right of
First Offer on such Shares;
(v) each XX Xxxxxx or Wavetek Holder, as the case may be, shall
give a Purchase Notice or a Refusal Notice to the Company and each of the
Stockholders within 10 days of receipt of the Offering Notice; and
(vi) if the WG Holders pursuant to Section 4.1(a)(iii) or the
Wavetek Holders pursuant to Section 4.1(a)(iv), as the case may be, decline
to purchase all of the Shares in the Proposed Sale, the Company shall have a
Right of First Offer on such remaining Shares. The Company shall give a
Purchase Notice or a Refusal Notice to all Stockholders within 10 days after
receipt of the WG Holders' or Wavetek Holders' Refusal Notice; PROVIDED,
HOWEVER, that in the event the Company declines to purchase all of the
remaining Shares, any other Stockholder (excluding any XX Xxxxxx or Wavetek
Holder that was offered the prior right to acquire all or a portion of such
Shares pursuant to a Right of First Offer pursuant to Section 4.1(a)(iii) or
(iv)), may elect to purchase such remaining Shares by giving a Purchase
Notice within 10 days after receipt of the Company's Refusal Notice. Such
other Stockholder or Stockholders electing to purchase any Shares in the
Proposed Sale shall participate on a pro rata basis. Any failure by a party
hereto to give a Purchase Notice or a Refusal Notice in a timely manner as
contemplated herein shall have the same effect as the giving of a Refusal
Notice by such party.
(b) In the event that all of the Shares are not sold pursuant to
the Right of First Offer set forth in Section 4.1(a), and the Selling
Stockholder has complied with Section 4.2 below (to the extent Section 4.2 is
operative),
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the Selling Stockholder may sell, at any time within 90 days from the date of
the last Refusal Notice, the Shares in the Proposed Sale in cash, cash
equivalents or marketable securities at a price per share equal to or greater
than and on other terms and conditions no more favorable to the purchaser
than those of the Proposed Sale.
(c) Section 4.1(a) shall not apply to Transfers (i) pursuant to
the Initial Public Offering or any subsequent registered offering, (ii)
pursuant to a sale of securities of the Company pursuant to Rule 144 under
the Securities Act of 1933, (iii) that constitute Permitted Transfers or (iv)
by any XX Xxxxxx to any other XX Xxxxxx or by any Wavetek Holder to any other
Wavetek Holder.
4.2. TAG-ALONG RIGHT. Except in the case of a proposed transfer by HF
of all of its shares, which shares constitute in excess of 10% of the
outstanding shares of Common Stock, in which case this Section 4.2 shall not
be operative, in the event that the Right of First Offer set forth in Section
4.1 is not exercised, each of the Stockholders not a Selling Stockholder (the
"TAG-ALONG STOCKHOLDERS") shall have the right (the "TAG-ALONG RIGHT") to
include up to the following number of its Shares in the Proposed Sale: the
total number of Shares proposed to be sold by the Selling Stockholder in the
Proposed Sale MULTIPLIED BY a fraction the numerator of which is the number
of Shares owned by such Tag-Along Stockholder and the denominator of which is
the aggregate number of Shares owned by such Selling Stockholder and by all
Tag-Along Stockholders exercising their Tag-Along Rights hereunder. Any
shares of Tag-Along Stockholders so included will reduce the number of shares
to be sold by the Selling Stockholder. Any Shares purchased from such
Stockholders pursuant to this Section 4.2 shall be at the same price per
Share and upon the same terms and conditions as such Proposed Sale.
Prior to making any Transfer pursuant to Section 4.1(b) hereof, the
Selling Stockholder shall give written notice to the Company and all other
Stockholders of such Stockholders' right to exercise their Tag-Along Right in
accordance herewith (the "Tag-Along Announcement"). The Tag-Along
Announcement shall indicate, in a schedule attached thereto, the maximum
number of shares of Common Stock that each such other Stockholder may sell
pursuant to its exercise of its Tag-Along Right pursuant to this Section 4.2.
Any
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Stockholder delivering a written notice to the Selling Stockholder (the
"TAG-ALONG NOTICE") within 10 days following its receipt of the Tag-Along
Announcement shall be entitled to exercise the Tag-Along Right. The
Tag-Along Notice shall state the number of Shares that such Stockholder
proposes to include in such Transfer to the proposed purchaser determined as
aforesaid.
The Company agrees not to effect any transfer of Shares by any
Stockholder until it has received evidence reasonably satisfactory to it that
the Tag-Along Right, if applicable to such transfer, has been complied with.
4.3 BRING-ALONG RIGHT. Prior to and after the Initial Public Offering,
subject to Section 4.1, if Stockholders owning or holding beneficial
ownership of at least 75% of all issued and outstanding Shares held by
Stockholders if the Stockholders collectively own more than 40% of the issued
and outstanding Shares (the "PROPOSING STOCKHOLDERS") elect to sell all of
such Stockholders' Shares to any Person not a party to this Agreement for
consideration consisting solely of cash or cash equivalent, such Proposing
Stockholders shall have the right to require the Transfer of all other
Stockholders' Shares to such Person at the same price and on the same terms
and conditions as such Proposing Stockholders (the "Bring-Along Right").
Such Proposing Stockholders shall give written notice to such other
Stockholders stating their exercise of the Bring-Along Right and the terms
and conditions of the requested Transfer. Upon receipt of such notice, such
other Stockholders shall transfer such other Stockholders' Shares in
accordance with such notice.
ARTICLE V
REGISTRATION RIGHTS
5.1 REGISTRATION ON REQUEST.
(a) One or more Stockholders owning or holding of record greater
than 10% of the issued and outstanding Common Stock shall have a right
("Post-Offering Registration Right") to require the Company, as expeditiously
as possible, to use its best efforts to effect the registration of the Shares
that such Stockholders shall request, pursuant to a Registration Statement,
subject to the following limitations:
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(i) such Post-Offering Registration Right may be exercised by
any Stockholder only on one occasion, by written notice given to the Company;
(ii) the shares to be registered (if other than by HF) shall have
an aggregate offering price of at least $10 million; and
(iii) the Company shall not be required to effect a registration
pursuant to Section 5.1(a) within 9 months of an effective Registration
Statement (as defined in Section 5.1(c)) pursuant to this Section 5.1 or as
to which the registration rights afforded by Section 5.2 apply.
(b) EXPENSES. The Company shall pay all (and will promptly
reimburse to the Stockholders to the extent they have borne any) Registration
Expenses in connection with each registration of Shares pursuant to this
Section 5.1 regardless of whether such Registration Statement becomes
effective. Each of the Stockholders requesting the registration of Shares
and the Company, if the Company included securities not owned or held of
record by such requesting Stockholders, shall pay all underwriting discounts
and commissions and transfer taxes, if any, on the basis of the relative
number of Shares registered then owned or held of record by such Stockholders
and the Company, if applicable.
(c) EFFECTIVE REGISTRATION STATEMENT. A registration requested
pursuant to this Section 5.1 and Section 5.2 will not be deemed to have been
effected unless it has become effective; PROVIDED, that if, within the period
ending on the earlier to occur of (i) 90 days after the applicable
Registration Statement has become effective or (ii) the date on which the
distribution of the securities covered thereby has been completed, the
offering of securities pursuant to such Registration Statement is interfered
with by any stop order, injunction or other order or requirement of the SEC
or other governmental agency or court, such Registration Statement will be
deemed not to have been effected; provided, however, if any Stockholder
exercising its right to request a registration pursuant to this Section 5.1
shall withdraw from a registration so requested after the filing thereof,
such registration will be deemed to have been effective with respect to such
Stockholder in accordance with this Section 5.1.
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(d) MATERIAL TRANSACTION. The Company may delay the filing or
effectiveness of any Registration Statement for a period of up to 180 days
after the request for registration pursuant to this Section 5.1 if a Material
Transaction exists or is pending at such time.
(e) PRIORITY IN REGISTRATIONS ON REQUEST. If a registration
pursuant to this Section 5.1 involves an underwritten offering and the
managing underwriter with respect to such offering advises the Stockholders
participating in such registration in writing that, in its opinion, the
number of Shares which the Stockholders and any other persons intended to be
included in such registration exceeds the largest number of Shares which can
be sold in such offering without having an adverse effect on the offering of
Shares as contemplated by such Stockholders, then the Company will include in
such registration (i) first, in the case of any registration following the
Initial Public Offering in which HF shall be entitled to register Shares
pursuant to Section 5.1 or 5.2 hereof, such shares requested by HF, if any,
(ii) second, all the shares the Company proposes to sell for its own account
and (iii) third, the Shares which the Stockholders (excluding HF in the event
clause (i) shall be applicable with respect to such registration) have
requested to be included in such registration pursuant to Section 5.1 and
which, in the opinion of such managing underwriter, can be sold without
having the adverse effect referred to above, such reduced number of Shares
shall be allocated pro rata among all requesting Stockholders on the basis of
the relative number of Shares then owned or held of record by each such
Stockholder (provided that (A) any shares thereby allocated to any Wavetek
Stockholder that exceed such Wavetek Stockholder's request will be first
reallocated among the remaining requesting Wavetek Stockholders in like
manner and (B) any shares thereby allocated to any WG Stockholder that exceed
such WG Stockholders' request will first be reallocated among the remaining
requesting WG Stockholders in like manner).
5.2 INCIDENTAL REGISTRATION.
(a) RIGHT TO INCLUDE SECURITIES. In connection with the Initial
Public Offering and during the two-year period from the effective date of the
Registration Statement filed pursuant to an Initial Public Offering, each
time the Company proposes to register Shares under the Securities Act
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(other than a registration on Form S-4 or S-8, or any successor or other
forms promulgated for similar purposes), whether or not for sale for its own
account, pursuant to a Registration Statement, the Stockholders shall have
the right to require the Company to register the Shares of such Stockholder,
subject to the limitations set forth in Section 5.2(c). The Company shall
give prompt written notice to all Stockholders of its intention to register
Shares and of the Stockholders' rights under this Section 5.2(a). Upon the
written request of any Stockholder made within 30 days after the receipt of
any such notice (which request shall specify the Shares intended to be
disposed of by such Stockholder and such Stockholder's proposed manner of
disposition of such Shares), the Company shall use its best efforts to effect
the registration of such Shares under the Securities Act; PROVIDED that (i)
if, at any time after giving written notice of its intention to register any
Shares and prior to the effective date of the Registration Statement filed in
connection with such registration, the Company shall determine for any reason
not to proceed with the proposed registration, the Company may, at its
election, give written notice of such determination to the Stockholders that
had given notice to participate in such registration and thereupon shall be
relieved of its obligation to register any securities in connection with such
registration (but not from its obligation to pay the Registration Expenses in
connection therewith), and (ii) if such registration involves an underwritten
offering by the Company, all Stockholders requesting to have Shares included
in the Company's registration must Transfer such Shares to such underwriters
who shall have been selected by the Company on the same terms and conditions
as are applicable to the Company (except for the Company's obligation to pay
all Registration Expenses), with such differences, including any with respect
to indemnification and contribution, as may be customary or appropriate in
combined primary and secondary offerings. If a proposed registration
pursuant to this Section 5.2(a) involves such an underwritten public
offering, any Stockholder making a request under this Section 5.2(a) in
connection with such registration may elect in writing, prior to the
effective date of the registration statement filed in connection with such
registration, to withdraw such request and not to have such securities
registered in connection with such registration; provided, however, such
withdrawing Stockholder shall be responsible for reimbursing the Company for
expenses it incurred directly as a consequence of such
-24-
incidental registration (including any filing fees paid in connection
therewith).
(b) EXPENSES. The Company shall pay all (and shall promptly
reimburse to the Stockholders to the extent they have borne any) Registration
Expenses in connection with each registration of the Shares requested
pursuant to this Section 5.2, regardless of whether the Registration
Statement filed in connection with such registration becomes effective. Each
of the Stockholders requesting the registration of Shares and the Company
shall pay all underwriting discounts and commissions and transfer taxes, if
any, on the basis of the number of Shares registered by such Stockholders and
the Company.
(c) PRIORITY IN INCIDENTAL REGISTRATIONS. If a registration
pursuant to this Section 5.2 involves an underwritten offering by the Company
and the managing underwriter with respect to such offering advises the
Company in writing that, in its opinion, the number of Shares which the
Company, the Stockholders and any other persons intended to be included in
such registration exceeds the largest number of Shares which can be sold in
such offering without having an adverse effect on the offering of Shares as
contemplated by the Company (including the price at which the Company
proposes to sell the Shares), then the Company will include in such
registration (i) first, in the case of the Initial Public Offering only, such
Shares requested by HF, if any, to enable it to reduce its ownership of
shares in the Company immediately following consummation of the Initial
Public Offering to not less than 10% of the outstanding shares (provided that
any shares thereby allocated to HF will reduce the shares available to other
WG Stockholders pursuant to clause (iv) and (v)), (ii) second, in the case of
any registration other than the Initial Public Offering in which HF shall be
entitled to register Shares either pursuant to Section 5.1 or 5.2 hereof,
such shares requested by HF, if any, (iii) third, all the shares the Company
proposes to sell for its own account, (iv) fourth, the Shares which the
Stockholders have requested to be included in such registration pursuant to
Section 5.1 hereof (with any necessary proration thereof to be effected in
accordance with Section 5.1(e)) and (v) fifth, the Shares which the
Stockholders (excluding HF in the event either clause (i) or (ii) shall be
applicable with respect to such registration) have requested to be included
in such registration pursuant to Section 5.2 hereof and which, in the opinion
of such managing
-25-
underwriter, can be sold without having the adverse effect referred to above,
such reduced number of Shares shall be allocated pro rata among all
requesting Stockholders on the basis of the relative number of Shares then
owned or held of record by each such Stockholder (provided that (A) any
shares thereby allocated to any Wavetek Stockholder that exceed such Wavetek
Stockholder's request will be first reallocated among the remaining
requesting Wavetek Stockholders in like manner and (B) any shares thereby
allocated to any WG Stockholder that exceed such WG Stockholders' request
will be first reallocated among the remaining requesting WG Stockholders in
like manner).
5.3 REGISTRATION PROCEDURES. If and whenever the Company is required
to use its best efforts to effect or cause the registration of Shares under
the Securities Act as provided in this Agreement, the Company shall, as
expeditiously as possible:
(a) prepare and, if the registration is pursuant to notice given
under Section 5.1, in any event within 60 days after the giving of notice
pursuant to Section 5.1, file with the SEC a Registration Statement with
respect to such Shares on any form for which the Company then qualifies or
which counsel for the Company shall deem appropriate and which form shall be
available for the sale of the such Shares in accordance with the intended
methods of distribution thereof, and use its best efforts to cause such
Registration Statement to become and remain effective; PROVIDED, HOWEVER,
that the Company may discontinue any registration of Shares for its own
account which is being effected pursuant to Section 5.2 at any time prior to
the effective date of the Registration Statement relating thereto;
(b) prepare and file with the SEC such amendments and
supplements to such Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such Registration Statement
effective for a period of 180 days or such lesser period of time as the
Company or any Stockholder may be required under the Securities Act to
deliver a prospectus in connection with any sale of Shares, and to comply
with the provisions of the Securities Act with respect to the disposition of
all Shares covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the Stockholder or
Stockholders thereof set forth in such Registration Statement;
-26-
provided, that before filing a Registration Statement or prospectus, or any
amendments or supplements thereto, the Company will furnish to the
Stockholders and their counsel copies of all documents proposed to be filed,
which documents will be subject to the prompt review of such counsel and will
not be filed if such counsel reasonably objects;
(c) furnish to each Stockholder of such Shares such number of
copies of such Registration Statement and of each amendment and supplement
thereto (in each case including all exhibits), such number of copies of the
prospectus included in such Registration Statement (including each
preliminary prospectus and summary prospectus and prospectus supplement, as
applicable), each in conformity with the requirements of the Securities Act,
and such other documents as such Stockholder may reasonably request in order
to facilitate the disposition of Shares by such Stockholder;
(d) use its best efforts to register or qualify such Shares
covered by such Registration Statement under such other securities or blue
sky laws of such jurisdictions as each Stockholder shall reasonably request,
and do any and all other acts and things which may be reasonably necessary or
advisable to enable such Stockholder to consummate the disposition in such
jurisdictions of the Shares owned by such Stockholder, except that the
Company shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction where, but for the
requirements of this Section 5.3(d), it would not be obligated to be so
qualified, to subject itself to taxation in any such jurisdiction or to
consent to general service of process in any such jurisdiction;
(e) use its best efforts to cause such Shares covered by such
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the
Stockholder or Stockholders thereof to consummate the disposition of such
Shares;
(f) notify each Stockholder of any such Shares covered by such
Registration Statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act within the appropriate
period mentioned in Section 5.3(b), of the Company's becoming aware that the
prospectus included in such Registration Statement, as then in effect,
includes or may include an untrue statement of a
-27-
material fact or omits or may omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing, and at the request of any such
Stockholder, prepare and furnish to such Stockholder a reasonable number of
copies of an amended or supplemental prospectus as may be necessary so that,
as thereafter delivered to the purchasers of such Shares, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company may delay the preparation of such amended or supplemental
prospectus for a period of up to 180 days if a Material Transaction exists or
is pending at such time;
(g) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make available to the Stockholders, as
soon as reasonably practicable (but not more than eighteen months) after the
effective date of the Registration Statement, an earning statement which
shall satisfy the provisions of Section 11(a) of the Securities Act and the
rules and regulations promulgated thereunder;
(h) cause all such Shares to be listed on any securities
exchange on which the Common Stock is then listed, if such Shares are not
already so listed and if such listing is then permitted under the rules of
such exchange, or to be quoted on the Nasdaq National Market System if the
Common Stock is quoted thereon, and to provide a transfer agent and registrar
and a CUSIP number for such Shares covered by such Registration Statement, in
each case no later than the effective date of such Registration Statement;
(i) enter into such customary agreements (including an
underwriting agreement in customary form) and take such other actions as
sellers of a majority of Shares or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such Shares;
(j) obtain a "comfort" letter or letters from the Company's
independent public accountants in customary form and covering matters of the
type customarily covered by "comfort" letters as the Stockholder or
Stockholders of a majority of
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the Shares covered by such Registration Statement shall reasonably request;
(k) make available for inspection by representatives of the
Stockholders of Shares covered by such Registration Statement, by any
underwriter participating in any disposition to be effected pursuant to such
Registration Statement and by any attorney, accountant or other agent
retained by such Stockholders or any such underwriter, all pertinent
financial and other records, pertinent corporate documents and properties of
the Company, and cause all of the Company's officers, directors and employees
to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such
Registration Statement; and
(l) permit any Stockholder to participate in the preparation of
such Registration Statement and to require the insertion therein of material
regarding such Stockholder, furnished to the Company in writing, which in the
reasonable judgment of such Stockholder and its counsel should be included.
The Company may require each Stockholder of the Shares for which a
registration is being effected to furnish the Company with such information
regarding such Stockholder (pertinent to the disclosure requirements relating
to the registration and the distribution of such Shares) as the Company may
from time to time reasonably request in writing.
Each Stockholder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section
5.3(f), such Stockholder will forthwith discontinue disposition of such
Shares pursuant to the Registration Statement covering such Shares until such
Stockholder's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 5.3(f) and, if so directed by the Company, such
Stockholder will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in such Stockholder's
possession, of the prospectus covering such Shares current at the time of
receipt of such notice. In the event the Company shall give any such notice,
the period mentioned in Section 5.3(b) shall be extended by the number of
days in the period from the date of the giving of such notice pursuant to
Section 5.3(f) through the date when each seller of Shares covered by such
-29-
registration statement shall have received the copies of the supplemented or
amended prospectus contemplated by Section 5.3(f).
5.4 INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. In the event of any
registration of any Shares under the Securities Act pursuant to Section 5.1
or 5.2, the Company hereby indemnifies and agrees to hold harmless each
Stockholder of Shares covered by such Registration Statement, each Affiliate
of such Stockholder and their respective directors, officers, employees,
agents, and general and limited partners (and the directors, officers,
affiliates and controlling Persons thereof), each other Person who
participates as an underwriter in the offering or sale of such securities and
each other Person, if any, who controls such Stockholder or any such
underwriter within the meaning of the Securities Act (collectively, the
"Indemnified Parties"), against any and all losses, claims, damages or
liabilities, joint or several, and expenses to which such Indemnified Party
may become subject to under the Securities Act, common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof, whether or not such Indemnified Party is a
party thereto) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any Registration
Statement under which such Shares were registered under the Securities Act,
any preliminary, final or summary prospectus contained therein, or any
amendment or supplement thereto, or (ii) any omission or alleged omission to
state therein a material fact necessary to make the statements made, in the
light of the circumstances under which they were made, not misleading, and
the Company will reimburse such Indemnified Party for any legal or other
expenses reasonably incurred by it in connection with investigating or
defending any such loss, claim, liability, action or proceeding; PROVIDED,
that the Company shall not be liable to any Indemnified Party in any such
case to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in such Registration Statement, in any such preliminary, final or
summary prospectus, or any amendment or supplement thereto in reliance upon
and in conformity with written information with respect to such Indemnified
Party furnished to the
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Company by such Indemnified Party expressly for use in the preparation
thereof. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of such Stockholder or any Indemnified
Party and shall survive the transfer of such securities by such Stockholder.
(b) INDEMNIFICATION BY THE STOCKHOLDERS AND UNDERWRITERS. The
Company may require, as a condition to including any Shares in any
Registration Statement filed in accordance with Sections 5.1 or 5.2 herein,
that the Company shall have received an undertaking reasonably satisfactory
to it from the Stockholder of such Shares or any underwriter to indemnify and
hold harmless (in the same manner and to the same extent as set forth in
Section 5.4(a)) the Company, all other Stockholders including Shares in such
Registration Statement or any underwriter, as the case may be, and any of
their respective affiliates, directors, officers, employees, agents, general
and limited partners and controlling Persons, with respect to any statement
or alleged statement in or omission or alleged omission from such
Registration Statement, any preliminary, final or summary prospectus
contained therein, or any amendment or supplement, if such statement or
alleged statement or omission or alleged omission was made in reliance upon
and in conformity with written information with respect to such Stockholder
or underwriter furnished to the Company by such Stockholder or underwriter
expressly for use in the preparation of such Registration Statement,
preliminary, final or summary prospectus or amendment or supplement, or a
document incorporated by reference into any of the foregoing; provided that
no Stockholder shall be liable pursuant to this clause (b) for any amount in
excess of the net proceeds received by such Stockholder from the sale of
Shares covered by the Registration Statement giving rise to the claim for
indemnification. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company or any of
the Stockholders, or any of their respective affiliates, directors, officers
or controlling Persons and shall survive the transfer of such Shares by such
Stockholder.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
Indemnified Party hereunder of written notice of the commencement of any
action or proceeding with respect to which a claim for indemnification may be
made pursuant to this Section 5.4, such Indemnified Party will, if a claim in
respect thereof is to be made against an Indemnifying Party,
-31-
give written notice to the latter of the commencement of such action;
provided, that the failure of the Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations
under Sections 5.4(a) or 5.4(b), except to the extent that the Indemnifying
Party is actually prejudiced by such failure to give notice. In case any
such action is brought against an Indemnified Party, unless in such
Indemnified Party's reasonable judgment a conflict of interest between the
Indemnified Parties and the applicable Indemnifying Party may exist in
respect of such claim, the Indemnifying Party will be entitled to participate
in and to assume the defense thereof, jointly with any other Indemnifying
Party similarly notified to the extent that it may wish, with counsel
reasonably satisfactory to such Indemnified Party, and after notice from the
Indemnifying Party to such Indemnified Party of its election so to assume the
defense thereof, the Indemnifying Party will not be liable to such
Indemnified Party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonable costs
of investigation. If the Indemnified Party has been advised by counsel that
having common counsel would result in a conflict of interest between the
interests of such indemnified and indemnifying parties, then such Indemnified
Party may employ separate counsel reasonably acceptable to the Indemnifying
Party to represent or defend such Indemnified Party in such action, it being
understood, however, that the Indemnifying Party shall not be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at
any time for all such Indemnified Parties (and not more than one separate
firm of local counsel at any time for all such Indemnified Parties) in such
action. No Indemnifying Party will consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof
the giving by the claimant or plaintiff to such Indemnified Party of a
release from all liability in respect of such claim or litigation.
(d) OTHER INDEMNIFICATION. Indemnification similar to that
specified in this Section 5.4 (with appropriate modifications) shall be given
by the Company and each Stockholder with respect to any required registration
or other qualification of Shares under any federal or state law or regulation
or governmental authority other than the Securities Act.
-32-
(e) CONTRIBUTION. If recovery is not available under the
foregoing indemnification provisions of this Section 5.4 for any reason, the
parties entitled to indemnification by the terms thereof shall be entitled to
contribution for liabilities and expenses except to the extent that
contribution is not permitted under Section 11(f) of the Securities Act. In
determining the amount of contribution to which the respective parties are
entitled, there shall be considered the relative benefits received by each
party from the offering of the Shares (taking into account the portion of the
proceeds realized by each), the parties' relative knowledge and access to
information concerning the matter with respect to which the claim was
fasserted, the opportunity to correct and prevent any misstatement or omission
and any other equitable considerations appropriate under the circumstances.
The Company and the Stockholders agree that it would not be just
and equitable if contribution pursuant to this paragraph (e) were determined
by pro rata allocation (even if the sellers of Shares were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the liabilities and expenses referred to in the immediately
preceding paragraph shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5.4, no seller of such Shares shall be required to
contribute any amount in excess of the net proceeds received by such seller
from the sale of such Shares covered by the Registration Statement giving
rise to the claim for contribution. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(f) NON-EXCLUSIVITY. The obligations of the parties under this
Section 5.4 shall be in addition to any liability which any party may
otherwise have to any other party.
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ARTICLE VI
MISCELLANEOUS
6.1 LEGENDS. The certificates representing the Shares to be purchased
by or are owned or held of record by each of the Stockholders, as the case
may be, shall bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED,
SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF (A
"TRANSFER") EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF A STOCKHOLDERS
AGREEMENT DATED AS OF JUNE 12, 1998. ANY TRANSFEREE OF THESE SECURITIES
TAKES SUBJECT TO THE TERMS OP SUCH AGREEMENTS, COPIES OF WHICH ARE ON FILE
WITH THE COMPANY."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR UNDER ANY STATE SECURITIES
LAWS. THE SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN
EXEMPTION THEREFROM UNDER THE ACT OR LAW OR THE RULES AND REGULATIONS
PROMULGATED THEREUNDER."
Each of the parties hereto agrees that it will not Transfer any Shares
without complying with each of the restrictions set forth herein and agrees
that in connection with any such Transfer it will, if requested by the
Company, deliver at its expense to the Company an opinion of counsel
(including in-house or special counsel), in form and substance reasonably
satisfactory to the Company and counsel for the Company, that such Transfer
is not in violation of the securities laws of the United States of America or
any state thereof; PROVIDED, HOWEVER, that in case of any sale or other
Transfer of Shares to any person or entity who is an "accredited investor"
(as such term is defined and used in Rule 501 of Regulation D under the Act),
no opinion of counsel shall be required if the transferor obtains a
representation from such person or entity that it is an accredited investor
and is acquiring such Shares for its own account and with no intention of
distributing or reselling said Shares or any
-34-
part thereof, or interest therein, in any transaction that would violate the
securities laws of the United States of America or any state thereof, without
prejudice, however, to such person's or entity's right at all times to
Transfer all or any part of said Shares pursuant to an effective Registration
Statement under the Act or any exemption from such registration available
under the Act, and subject, nevertheless, to such person's or entity's
disposition of its property being at all times within its control.
6.2 NOTICES. All notices, requests, demands and other communications
which are required or may be given under this Agreement shall be in writing
and shall be deemed to have been duly given when received if personally
delivered; when transmitted if transmitted by telecopy, electronic or digital
transmission method; the day after it is sent, if sent for next day delivery
to a domestic address by recognized overnight delivery service (E.G., Federal
Express); and upon receipt, if sent by certified or registered mail, return
receipt requested. In each case notice shall be sent to:
If to the Company addressed to:
Wavetek Corporation
1030 Swabia Court
P.O. Box 13585
Research Xxxxxxxx Xxxx, XX 00000-0000
Telecopier No.:
Attention: Chief Executive Officer
With a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
If to any Stockholder to such Stockholder at the address
indicated on Annex 4 hereto.
6.3 SEVERABILITY. In the event that any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, then to the maximum extent permitted
by law, such invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement.
-35-
6.4 ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS. (a) This Agreement
constitutes the entire agreement among the parties pertaining to the subject
matter hereof and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the parties,
including, without limitation, the Prior Agreement and other agreements among
the stockholders of Wavetek and/or WG prior to the Effective Time. This
Agreement may not be terminated or amended except by an instrument in writing
signed on behalf of the Stockholders holding at least 70% of the outstanding
Shares held by Stockholders; provided that any amendment that expressly
alters the rights of any Stockholder differently from other Stockholders
shall require the consent of such affected Stockholder. No waiver of any of
the provisions of this Agreement shall be deemed or shall constitute a waiver
of any other provision hereof (whether or not similar), nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided.
(b) It being the intent of the Stockholders that this Agreement
shall be the sole and exclusive agreement with respect to the matters set
forth herein, during the term of this Agreement, each Stockholder agrees (i)
not to enter into any other agreements or arrangements that are in conflict
with or are expressly governed by the terms of this Agreement, (ii) not to
grant a proxy to any party with respect to the voting of its Common Stock
(other than routine proxies granted to approve matters recommended by the
Board of Directors) or (iii) not to enter into any agreement with any other
holder of Common Stock of the Company (including Stockholders) with respect
to the voting of shares of Common Stock except, in the case of clauses (i),
(ii) or (iii) above, for agreements or arrangements (a) approved or consented
to by the holders of at least 70% of the outstanding Common Stock held by
Stockholders, (b) agreements or arrangements between any Stockholder and its
Affiliates and (c) agreements or arrangements pursuant to the Company's
Employee Benefit Plans.
(c) The representations, warranties, covenants and
indemnification obligations contained in the Stock and Recapitalization
Agreement, dated as of May 23, 1997, among Wavetek and the other parties
thereto, shall terminate at the Effective Time.
6.5 SUCCESSORS, ASSIGNS AND TRANSFEREES. This Agreement shall be
binding upon and inure to the benefit of the parties
-36-
hereto and their respective legal representatives, heirs, legatees,
successors and assigns including any party to which any Stockholder has
transferred or sold his or its Shares. Except as provided herein, each
transferee of Shares from a party hereto or a Permitted Transferee thereof
shall take such Shares subject to the same restrictions as existed in the
hands of the transferor.
6.6 CONSENT TO SPECIFIC PERFORMANCE. The parties hereto declare that
it is impossible to measure in money the damages which would accrue to a
party by reason of failure to perform any of the obligations hereunder.
Therefore, if any party shall institute any action or proceeding to enforce
the provisions hereof, any party against whom such action or proceeding is
brought hereby waives any claim or defense therein that the other party has
an adequate remedy at law.
6.7 VARIATIONS IN PRONOUNS. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine or neuter, singular or
plural, as the identity of the antecedent person or persons or entity or
entities may require.
6.8 EFFECTIVENESS; TERMINATION. This Agreement shall only be effective
as of the Effective Time. Unless earlier terminated by mutual agreement
among the parties hereto, this Agreement shall in any event terminate when
the Stockholders collectively own or hold of record less than 35% of the
outstanding Shares.
6.9 CHOICE OF LAW. THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED AND
THE RIGHTS OF THE PARTIES DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF DELAWARE, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PROVISIONS THEREOF.
6.10 JURISDICTION; WAIVERS. Each of the parties hereto hereby
irrevocably submits in any legal action or proceeding relating to or arising
out of this Agreement or any other document relating hereto or delivered in
connection with the transactions contemplated hereby, or for recognition and
enforcement of any judgment in respect thereof, to the exclusive jurisdiction
of the United States District Court for the District of Delaware, and
appellate courts thereof. Each of the parties hereto further (a) consents
that any such action or proceeding may be brought in such court and waives
any objection that it may now or hereafter have to the venue
-37-
of any such action or proceeding in such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or
claim the same; (b) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage prepaid,
to such party at its address set forth in Section 6.2 or at such other
address of which such party shall have given notice pursuant thereto; and (c)
agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law.
6.11 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
6.12 FURTHER ASSURANCES. Each of the parties shall execute and deliver
such further instruments and documents and take such further actions as may
be reasonably required or desirable to carry out the provisions hereof and
the transactions contemplated hereby.
6.13 CUMULATIVE REMEDIES. All rights and remedies of either party
hereto are cumulative of each other and of every other right or remedy such
party may otherwise have at law or in equity, and the exercise of one or more
rights or remedies shall not prejudice or impair the concurrent or subsequent
exercise of other rights or remedies.
6.14 INSPECTION AND COMPLIANCE WITH LAW. Copies of this Agreement will
be available for inspection or copying by any Stockholder at the offices of
the Company through the Secretary of the Company.
6.15 TERMINATION OF PRIOR AGREEMENT. This Agreement supersedes and
replaces the Prior Agreement, which as of the Effective Time shall be deemed
null and void and without further effect.
6.16 HEADINGS. The titles, captions or headings of the Articles and
Sections herein are for convenience of reference only and are not intended to
be a part of or to affect the meaning or interpretation of this Agreement.
-38-
6.17 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.18 BINDING AGREEMENT. This Agreement shall be a binding obligation of
each party to this Agreement upon the signature of such party hereto, even if
such party executes this Agreement prior to June 12, 1998, and shall not be
binding upon any party after June 12, 1998 if all parties have not executed
this Agreement by June 12, 1998.
-39-
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders
Agreement as of the date first written above.
WAVETEK CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chairman of the Board
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By: /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Vice President
-40-
DLJ DIVERSIFIED PARTNERS-A, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By: /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJMB FUNDING II, INC.
By: /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ FIRST ESC L.P.
By: DLJ LBO Plans Management
Corporation
By: /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management
Corporation
General Partner
By: /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Vice President
-41-
DLJ MILLENNIUM PARTNERS, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Xxx Xxxxx
------------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ MILLENNIUM PARTNERS-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ OFFSHORE PARTNERS II, C.V.
By: /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Vice President
UK INVESTMENT PLAN 1997 PARTNERS
By: UK Investment Plan 1997 Partners,
Inc.
General Partner
By: /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Vice President
-42-
GREEN EQUITY INVESTORS II, L.P.
By: Grand Avenue Capital Partners, L.P.
Grand Avenue Capital
Corporation, its general partner
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title: Partner
XXXXXXXX UK VENTURE FUND III
By: Xxxxxxxx Venture Managers Inc.,
as General Partner of
Xxxxxxxx UK Venture Fund III LP1
By: /s/ Xxxxx X. Xxxxxxx /s/ Xxxx X. Xxxxx
---------------------------------------
Xxxxx X. Xxxxxxx, Director & VP
Xxxx X. Xxxxx, Director & XX
XXXXXXXX UK VENTURE FUND III
By: Xxxxxxxx Venture Managers Inc.,
as General Partner of
Xxxxxxxx UK Venture Fund III LP2
By: /s/ Xxxxx X. Xxxxxxx /s/ Xxxx X. Xxxxx
---------------------------------------
Xxxxx X. Xxxxxxx, Director & VP
Xxxx X. Xxxxx, Director & XX
XXXXXXXX UK VENTURE FUND III
By: Xxxxxxxx International Trust Company
Limited, as Trustee of
Xxxxxxxx UK Venture Fund III Trust
By: /s/ Xxxxx X. Xxxxxxx /s/ Xxxx X. Xxxxx
---------------------------------------
Xxxxx X. Xxxxxxx, Director & VP
Xxxx X. Xxxxx, Director & VP
YOKOGAWA ELECTRIC CORPORATION
By: /s/ Joichi Ueba
-------------------------------------
Name: Joichi Ueba
Title: Senior Vice President
-43-
XX. XXXXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Xx. Xxxxxxx X. Xxxxxxx
XXXXXXX X. XXXXXXX
XXXXXXX X. XXXXXXX GRAT 1
XXXXXXX X. XXXXXXX GRAT 2
XXXXXXX X. XXXXXXX GRAT
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx, as
Attorney-in-Fact
WAVETEK MANAGEMENT STOCKHOLDERS:
SNOW HILL TRUSTEES
XXXXXXX X. XXXXX
XXXX XXXXXXXXX
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx, as
Attorney-in-Fact
XXXXX X. XXXXXXXX
/s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxxx
MORIKAWA TRUST F/B/O XXXXX X. XXXXXXXX
By: /s/ Criss X. Xxxxxxxx
------------------------------------
Criss X. Xxxxxxxx, as
Trustee
MORIKAWA TRUST F/B/O XXXX X. XXXXXXXX
By: /s/ Criss X. Xxxxxxxx
------------------------------------
Criss X. Xxxxxxxx, as
Trustee
-44-
XXX X. XXXXXXXXXXX
/s/ Xxx X. Xxxxxxxxxxx
----------------------------------------
Xxx X. Xxxxxxxxxxx
XX STOCKHOLDERS:
WANDEL & GOLTERMANN MANAGEMENT
HOLDING GmbH
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: President and CEO
And: /s/ Xxxx Xxxxx-Xxxxxxxx
----------------------------------
Name: Xxxx Xxxxx-Xxxxxxxx
Title: Vice President Controlling
and Logistics
XXXXXXXX XXXXXX
/s/ Xxxxxxxx Xxxxxx
---------------------------------------
Xxxxxxxx Xxxxxx
XXXXXX XXXXXX
/s/ Xxxxxx Xxxxxx
---------------------------------------
Xxxxxx Xxxxxx
-00-
XXXXX XXXXXXXXXX
/s/ Xxxxx Xxxxxxxxxx
----------------------------------------
Xxxxx Xxxxxxxxxx
XXXXXX XXXXXXXXX
/s/ Xxxxxx Xxxxxxxxxx
---------------------------------------
Xxxxxx Xxxxxxxxx
XXXXXXXX XXXXXXXXX
/s/ Xxxxxxxx Xxxxxxxxxx
---------------------------------------
Xxxxxxxx Xxxxxxxxx
HANNOVER FINANZ W&G
BETEILIGUNGSGESELLSCHAFT mbH
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
AND: /s/ Xxxxx xxx Xxxxxx
----------------------------------
Name: Xxxxx xxx Xxxxxx
Title: Managing Director
-46-
