SHAREHOLDERS' AND VOTING AGREEMENT
THIS SHAREHOLDERS' AND VOTING AGREEMENT dated as of this
21st day of October, 1996 is made by and among G.E.M. USA, INC., a
company incorporated under the laws of Delaware whose business
address is at General de Mesure et de Maintenance Electronique,
S.A., c/o Metrix S.A., Xxxx xxx Xxxxxxxx, 0, xxxxxx du Pre'
Challes, X.X. 000, 00000 Xxxxxx-xx-Xxxxx Xxxxx, Xxxxxx ("GEM"),
XXXXXX X. XxXXXX, an individual residing at 00 Xxxxxxxxx Xxxx,
Xxxxx Xxxxx, Xxx Xxxxxx 00000, X.X.X. ("DeBlis"), XXXX XXXXXX, an
individual residing at 000 Xxxxxxxx Xxxx, Xxx. 000, Xxxxx Xxxx, Xxx
Xxxxxx 00000, X.X.X. ("Frucht"), XXXX X. XXXXX, an individual
residing at 0000 Xxxxxxxxxx Xxxxxx, X.X., Xxxxxx Xxxxx, Xxxxxxx
00000, X.X.X. ("Young", together with each of DeBlis and Frucht
hereinafter collectively referred to as the "Insider Shareholders";
and the Insider Shareholders and GEM are hereinafter collectively
referred to as the "Shareholders"), and BOONTON ELECTRONICS
CORPORATION, a company incorporated under the laws of the State of
New Jersey, U.S.A. whose principal business address is at 00
Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, X.X.X. (the "Compa-
ny").
WITNESSETH:
WHEREAS, GEM is the direct and/or beneficial owner of Two
Hundred Sixty Thousand Three Hundred (260,300) shares of common
stock of the Company representing 15.905% of the total issued and
outstanding shares of capital stock in the Company, and is entitled
to acquire additional shares of the Company pursuant to an out-
standing but unexercised option granted to GEM by the Company (the
"GEM Shares"); and
WHEREAS, as of the date of this Agreement DeBlis is the
direct and/or beneficial owner of Sixty-Three Thousand Six Hundred
Forty-Eight (63,648) shares of common stock of the Company repre-
senting 3.8891% of the total issued and outstanding shares of capi-
tal stock in the Company(the "DeBlis Shares"); and
WHEREAS, as of the date of this Agreement Frucht is the
direct and/or beneficial owner of Thirty Six Thousand Seven Hundred
Eighty Two (36,782) shares of common stock of the Company repre-
senting 2.2475% of the total issued and outstanding shares of capi-
tal stock in the Company(the "Frucht Shares"); and
WHEREAS, as of the date of this Agreement Young is the
direct and/or beneficial owner of One Hundred Twenty-Four Thousand
Six Hundred Six (124,606) shares of common stock of the Company
representing 7.6137% of the total issued and outstanding shares of
capital stock in the Company(the "Young Shares" together with the
DeBlis Shares and Frucht Shares hereinafter collectively referred
to as the "Insider Shares"; and the Insider Shares and GEM Shares
together are hereinafter collectively referred to as the "Shares");
and
WHEREAS, the Shareholders consider it appropriate and in
the best interests of the Company to enter into this Agreement with
respect to the management of the Company and the transfer or other
disposition of the Shares.
NOW, THEREFORE, in consideration of the mutual premises
and covenants contained in this Agreement, the Parties hereby agree
as follows:
ARTICLE I
General Agreement
1.1 The Shareholders hereby agree to retain, vote,
transfer or encumber their respective Shares, owned by them as of
the date of this Agreement or thereafter acquired pursuant to an
existing option, only in the manner and upon the terms provided for
in this Agreement, and further agree that none of the Shares, nor
any interest in all or any part of the Shares shall be sold,
assigned, pledged, given or otherwise transferred or encumbered
(except with respect to encumbrances arising from the purchase of
Shares on margin), in any manner, or by any means whatsoever,
voluntarily or otherwise, except in the manner and upon the terms
and conditions provided for in this Agreement.
1.2 The Company shall not cause or permit the transfer
of any of the Shares to be made on its books unless the transfer is
permitted by this Agreement, and has been made in accordance with
its terms.
ARTICLE II
Lifetime Transfers
2.1 None of the Insider Shares nor any interest in all
or any part thereof may be sold, assigned, pledged, given or other-
wise transferred or encumbered (except with respect to encumbrances
arising from the purchase of Shares on margin), voluntarily or
otherwise, to any other person or entity, except by complying with
the terms, conditions and provisions of this Agreement. Nothing
herein shall restrict the right of GEM to sell, assign, pledge or
otherwise transfer the GEM Shares.
2.2 Subject to the provisions of Sections 2.5 below, in
the event that any of the Insider Shareholders shall desire volun-
tarily, or shall be required by law or this Agreement, directly or
indirectly, or by action against the Insider Shares themselves, to
sell, assign, pledge, give or otherwise transfer and encumber all
or any portion of the Insider Shares while he or it is living or in
existence, as the case may be, such Insider Shareholder shall do so
only as provided in either Section 2.3 or 2.4 hereof.
2.3 An Insider Shareholder may sell all or any portion
of the Insider Shares owned by him or it as of the date of this
Agreement or thereafter acquired pursuant to an existing option
(directly and/or beneficially) to any other Shareholder, provided,
however, that such Insider Shareholder shall first give written
notice to GEM (the "First Offer Notice") identifying the number of
Insider Shares being offered (the "Offered Insider Shares"), the
purchase price the Insider Shareholder proposes to be paid for the
Offered Insider Shares and the terms of payment thereof (the "First
Offer Price"), and any encumbrances with respect to any of the
Offered Insider Shares. Within twenty (20) days of the receipt of
the First Offer Notice by GEM, GEM shall have an option to elect to
purchase the Offered Insider Shares at the First Offer Price (the
"Option"). The Option shall be deemed exercised upon written
notice to the selling Insider Shareholder by GEM, given prior to
the expiration of the First Option Period. If the Option is not
exercised or if the Option is exercised, but the Offered Insider
Shares are not purchased by GEM within forty-five (45) days of such
exercise, then the selling Insider Shareholder shall be free, for
a period of one hundred and fifty (150) days commencing from the
date GEM received the First Offer Notice to complete the sale of
the Offered Insider Shares to any other Insider Shareholder at a
price equal to or greater than and on terms not more favorable than
the First Offer Price.
2.4 An Insider Shareholder who has received a bona fide
third party offer (other than from another Shareholder) to purchase
all or any portion of the Shares held by him or it as of the date
of this Agreement or thereafter acquired pursuant to an existing
option or who desires to sell all or any portion of the Shares held
by him or it through a market maker or stockbroker authorized to
sell the Shares (the "Selling Shareholder") shall serve notice upon
GEM (the "Notice to Sell") of the Selling Shareholder's desire to
sell his Shares and identifying the number of Shares to be sold
(the "Offered Shares"), the name and address of the person desiring
to purchase the same (or in the case of a market maker and/or
stockbroker the name, address and phone number of the market maker
and/or stockbroker), the sale price and terms of payment of such
sale or the price quoted by the market maker and/or stockbroker for
the Offered Shares on the date of the Notice to Sell (the "Purchase
Terms") and any encumbrances with respect to the Offered Shares.
GEM shall have a right of first refusal to purchase the Offered
Shares from the Selling Shareholder in accordance with the Purchase
Terms set forth in the Notice to Sell (except that with respect to
Offered Shares being sold through a market maker or stockbroker,
such shares shall be sold at the market price on the date GEM
elects to purchase the Offered Shares, provided, however, that in
the event (i) the market price has fallen below the price set forth
in the Notice to Sell by more than ten (10%) percent, the Selling
Shareholder may withdraw the offer to sell and shall thereafter be
precluded from proceeding with the sale of the Offered Shares
without first having submitted to GEM a new Notice to Sell or (ii)
the market price has risen above the price set forth in the Notice
to Sell by more than ten (10%) percent, GEM may elect not to
proceed with the purchase of the Offered Shares) by delivering
notice of its intention to purchase the Offered Shares to the
Selling Shareholder within ten (10) business days of its receipt of
the Notice to Sell. In the event GEM shall refuse or fail to
exercise its right of first refusal to purchase the Offered Shares
from the Selling Shareholder as provided hereinabove, or exercises
its right of first refusal but fails to purchase the Offered Shares
within twenty-five (25) days of its receipt of the Notice to Sell,
the Selling Shareholder may proceed with the sale of the Offered
Shares to the bona fide third party purchaser or through the market
maker and/or stockbroker in accordance with the Purchase Terms set
forth in the Notice to Sell (or in the case of a sale through a
market maker and/or stockbroker, at the market price quoted on the
date of sale) provided, however, that such sale must be consummated
within sixty (60) days of the date of the Notice to Sell.
2.5 Notwithstanding anything herein contained to the
contrary, an Insider Shareholder may transfer all or any portion of
the Shares owned by him by gift to an immediate family member upon
written notice to GEM, provided, however, that the provisions of
this Section 2.5 shall not apply to or run to the benefit of such
transferee, who shall otherwise remain obligated by the terms and
provisions of this Agreement, as provided in Article IV.
ARTICLE III
Disposition Upon Death, Disability or Bankruptcy
3.1 Subject to the provisions of Section 3.3 below, upon
the death, permanent disability or filing of a petition in bank-
ruptcy by or against an Insider Shareholder, GEM shall have the
option to purchase and, upon the exercise of such option, the legal
representative of the deceased Insider Shareholder, or such Insider
Shareholder, as the case may be, shall sell to GEM the Shares held
by such Insider Shareholder or deceased Insider Shareholder for a
price equal to the average trading price per share of the Company's
registered shares for the last One Hundred Thousand (100,000)
shares sold through market makers authorized to sell the Shares
during the period immediately preceding the death, permanent
disability, or the entry of an order for relief in the bankruptcy
proceedings commenced by or against such Insider Shareholder. In
the event GEM does not exercise its option to purchase an Insider
Shareholder's Shares as provided herein, the transferee of such
Shares shall be bound by the requirements of Article IV of this
Agreement.
3.2 The selling Insider Shareholder or the legal repre-
sentative of the deceased Insider Shareholder, as the case may be,
shall deliver the Shares to GEM within sixty (60) days following
the exercise of the option set forth in Paragraph 3.1 herein.
3.3 Notwithstanding anything herein contained to the
contrary, an Insider Shareholder may transfer all of his Shares by
devise or bequest to an immediate family member, provided, however,
that the provisions of this Section 3.3 shall not apply to or run
to the benefit of such transferee, who shall otherwise remain
obligated by the terms and provisions of this Agreement, as pro-
vided in Article IV.
3.4 Upon the death of any Insider Shareholder, the
Company shall promptly attempt to ascertain the identity of the
executor, administrator or personal representative of such deceased
Insider Shareholder and, upon learning the identity thereof, shall
give notice in writing to such executor, administrator or personal
representative of such executor's, administrator's or personal
representative's obligations and rights under this Agreement.
ARTICLE IV
Obligation and Rights of Transferee
In the event that any of the Shares shall be transferred
to any person, firm, corporation or other entity, as permitted by
and pursuant to any provision of this Agreement, as a condition
precedent to the transfer of such Shares on the books of the
Company, such transferee must deliver to the Company a properly
authorized and duly executed written amendment to this Agreement,
providing that such transferee accepts such Shares subject to all
of the terms and conditions of this Agreement relating to transfer
and thereby acknowledge that the provisions and rights contained in
Sections 2.5 and 3.3 of this Agreement shall not apply to such
transferee. All Certificates representing the Shares transferred
to such transferee shall bear a restrictive legend in form satis-
factory to the Company. In the event that an attempt is made to
transfer, or compel the transfer, of any of the Shares, or any
interest therein, the voluntary or involuntary transferee shall
have no interest in the Shares, until the transferor Shareholder,
or his estate, as the case may be, shall have first complied with
the applicable provisions of this Agreement.
ARTICLE V
Voting Agreement
5.1 The Shareholders agree among themselves, and with
the Company, that they shall attend all meetings of Shareholders,
in person or by proxy, and/or execute all necessary unanimous
written consents of the Shareholders and/or call such special
meeting of all the shareholders of the Company as may be necessary
or desirable to accomplish the purposes and intent of this Article
V and the provisions of this Agreement, in accordance with the
principles set forth in this Agreement.
5.2 Each Shareholder agrees to take all action, includ-
ing, but not limited to, the voting of the capital stock of the
Company owned by such Shareholder, so that the Board of Directors
of the Company shall consist of seven (7) qualified directors
including at least two qualified members designated by GEM one of
who will serve as chairman of the Board of Directors, subject to
the provisions of Section 5.3 below. In the event of the resig-
nation, death, disqualification or removal by the Company or the
Board of Directors of any member of the Board of Directors desig-
nated by GEM (pursuant to this Section 5.2 or Section 5.3 below),
the Shareholders agree to replace such director(s) with member(s)
designated by GEM and, to the extent necessary, to cause a notice
of special shareholders' meeting to be sent to each shareholder of
record of the Company in accordance with the Bylaws of the Company,
stating the purpose of the meeting and naming such designee(s). At
the meeting called pursuant to such notice, each of the Sharehold-
ers shall vote his Shares so as to elect the nominee(s) of GEM as
a director of the Company.
5.3 In the event the Board of Directors of the Company
causes or allows any of the acts set forth in subsection (a)
through (k) below to be taken (or approves or allows any acts to be
taken which contemplate the taking of any of the acts described in
subsection (a) through (k) below) without the consent of the Board
members designated by GEM each of the Shareholders agrees to cause
(and/or to cause the Board of Directors to cause) a notice of
special shareholders' meeting to be called and served upon each
shareholder of record of the Company in accordance with the Bylaws
of the Company, for the purpose of removing the existing Board of
Directors, voting for a new Board of Directors and naming seven (7)
designees to the Board, which shall include at least four (4)
members designated by GEM. At the meeting called pursuant to such
notice, the Shareholders agree to take all action, including, but
not limited to, the voting of the capital stock of the Company
owned by such Shareholder, so that the Board of Directors of the
Company shall consist of seven (7) qualified directors, including
at least four (4) qualified members designated by GEM.
(a) Any amendment, alteration or repeal of any
provision of the Certificate of Incorporation or Bylaws of the
Company;
(b) The dissolution or liquidation, or the taking
of any action authorizing the dissolution or liquidation of the
Company;
(c) Increasing the authorized share capital of the
Company, creating any new class or series of stock, or approving
and/or authorizing any recapitalization of the shares of capital
stock of the Company;
(d) The payment of any dividend on the common stock
of the Company, whether in cash or in securities of the Company or
of any other entity, or the making of any distribution to the
shareholders of the Company;
(e) The approval or acceptance of any plan of
redemption or acquisition by the Company of any of its shares of
capital stock;
(f) Any increase in the size of the Board of
Directors;
(g) The termination of, or modification or amend-
ment to, the powers and duties of the Budget Committee, Compensa-
tion Committee, Audit Committee or Environmental Committee;
(h) The appointment to each of the Environmental
Committee, Compensation Committee and Audit Committee of represen-
tatives or persons other than Xxxxxx Auzan, Xxxxxx X. XxXxxx and
Xxxx X. York, (or any successor unanimously approved by such
committee's existing members), or the removal of Xxxxxx Auzan,
Xxxxxx X. XxXxxx or Xxxx X. York (or any of their approved succes-
sors) from such committees;
(i) The appointment to the Budget Committee of
representatives or persons other than Xxxxxx Auzan, Xxxx X. York
and Xxxxxx XxXxxx (or any successor unanimously approved by such
committee's existing members), or the removal of any of Xxxxxx
Auzan, Xxxx X. York or Xxxxxx XxXxxx (or any of their approved
successors) from such committee;
(j) The removal of Xxxxxx Auzan as Chairman of
Board of Directors and Xxxx X. York as Vice Chairman of the Board
of Directors of the Company during their elected terms; or
(k) Any increase in the compensation of any
employee of the Company other than as authorized by the Compensa-
tion Committee.
ARTICLE VI
Termination of Agreement
6.1 Unless terminated sooner by the unanimous agreement
in writing of the Company and the Shareholders then remaining, this
Agreement shall terminate upon the occurrence of any of the follow-
ing events:
6.1(i) Cessation of the Company's business.
6.1(ii) Liquidation and/or dissolution of the Company.
6.1(iii) Upon all of the Shares being held by a single
Shareholder.
6.1(iv) When GEM no longer owns at least ten percent
(10%) of the outstanding shares of capital stock in the Company.
6.1(v) On April 21, 1998, provided, however, that in
the event GEM fails to timely exercise its option under that
certain Subscription and Option Agreement, dated October 21, 1996
by and between GEM and the Company, this Agreement shall terminate
on April 22, 1997.
ARTICLE VII
Statement as to Shares
Each of the Shareholders and the Company hereby agree
that they shall provide to any Shareholder or the Company from time
to time, at the request of any Shareholder or the Company, with a
written statement of the number of Shares then held by the
Shareholder receiving such a request, together with the certificate
numbers for such Shares and the location where they are kept.
ARTICLE VIII
Specific Performance
The parties hereto agree that any violation of this
Agreement other than a default in the payment of money, cannot be
compensated for by damages, and the aggrieved party shall have the
right, and is hereby granted the privilege, of obtaining specific
performance of this Agreement in any court of competent jurisdic-
tion, upon the event of any breach hereunder.
ARTICLE IX
Notices
All notices, designations, consents, offers, acceptances
or any other communications provided for or permitted herein shall
be sufficiently given if in writing and delivered or sent by inter-
nationally recognized overnight express courier service as follows,
or to such other address as the party shall have given notice of
pursuant to the foregoing terms:
If to GEM, to:
G.E.M. USA, Inc.
c/o Metrix S.A.
General de Mesure et de Maintenance
Electronique, S.A.
c/o Metrix S.A.
Parc des Glaisins
6, avenue du Pre' Challes
X.X. 000
00000 Xxxxxx-xx-Xxxxx Xxxxx, Xxxxxx
If to DeBlis, to:
Xxxxxx X. XxXxxx
00 Xxxxxxxxx Xxxx
Xxxxx Xxxxx, Xxx Xxxxxx 00000
If to Frucht, to:
Xxxx Xxxxxx
000 Xxxxxxxx Xxxx, Xxx. 000
Xxxxx Xxxx, Xxx Xxxxxx 00000
If to Young, to:
Xxxx X. Xxxxx
0000 Xxxxxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxx 00000
If to the Company, to:
Boonton Electronics Corporation
00 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
ARTICLE X
Miscellaneous
10.1 This Agreement shall inure to the benefit of and
shall be binding upon the parties, their heirs, legal representa-
tives, successors and assigns, and shall be binding upon any person
who receives any of the Shares of the Company either in accordance
with, or in violation of, the terms of this Agreement.
10.2 If any provision of this Agreement shall be or be-
come illegal or unenforceable, in whole or in part, for any reason
whatsoever, the remaining portions shall nevertheless be deemed
valid, binding and subsisting.
10.3 The waiver by any of the parties hereto of a breach
or violation of any provision of this Agreement shall not operate
or be construed as a waiver of any subsequent breach or violation
thereof.
10.4 This written document expresses the entire agreement
among the parties hereto and supersedes any prior agreements or
understandings concerning the subject of this Agreement. No amend-
ment shall be valid unless in writing and signed by all parties.
10.5 The section and other headings contained in this
Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
10.6 This Agreement may be executed in one or more count-
erparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
10.7 This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of New Jersey.
Should any provision of this Agreement require judicial interpreta-
tion, it is agreed that the court interpreting or considering such
provision shall not apply the presumption that the terms hereof
shall be more strictly construed against a party by reason of the
rule or conclusion that a document should be construed more strict-
ly against the party who itself or through its agent prepares the
same. It is agreed and stipulated that all parties hereto have
participated equally in the preparation of this Agreement and that
legal counsel was consulted by each party before the execution of
this Agreement.
IN WITNESS WHEREOF, and intending to be legally bound,
the parties have executed this Agreement and intend that it be
effective as of the day and year first above written.
Witness/Attest: G.E.M. USA, INC.
______________________ By: /s/ Xxxxxx Auzan
----------------------
Xxxxxx Auzan, President
______________________ /s/ Xxxxxx X. XxXxxx
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XXXXXX X. XxXXXX
_____________________ /s/ Xxxx Xxxxxx
-----------------------
XXXX XXXXXX
_____________________ /s/ Xxxx X. Xxxxx
-----------------------
XXXX X. XXXXX
BOONTON ELECTRONICS CORPORATION
_____________________ By: /s/ Xxxxxx Xxxxx
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XXXXXX XXXXX
