EXHIBIT 10.1
Conformed Copy
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EXCHANGE AND MERGER AGREEMENT
DATED AS OF JUNE 12, 1998
BY AND AMONG
WAVETEK CORPORATION,
WANDEL & GOLTERMANN MANAGEMENT HOLDING GMBH
AND
THE STOCKHOLDERS LISTED
ON THE SIGNATURE PAGES HERETO
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TABLE OF CONTENTS
Page
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I. THE EXCHANGE AND MERGER
SECTION 1.1. Structure of the Exchange and Merger. . . . . . . . . . . 2
SECTION 1.2. Procedures. . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.3. WG Stockholder Loans. . . . . . . . . . . . . . . . . . . 4
SECTION 1.4. Option Grants . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 1.5. Dissenters' Rights. . . . . . . . . . . . . . . . . . . . 4
ARTICLE II. CONDUCT PENDING THE EXCHANGE AND MERGER
SECTION 2.1. Conduct of Business Prior to
the Effective Time. . . . . . . . . . . . . . . . . . . . 5
SECTION 2.2. Forbearance by Wavetek and WG . . . . . . . . . . . . . . 5
SECTION 2.3. Forbearance by WG Stockholders. . . . . . . . . . . . . . 7
SECTION 2.4. Forbearance by Wavetek Stockholders . . . . . . . . . . . 8
SECTION 2.5. Initial Public Offering . . . . . . . . . . . . . . . . . 9
SECTION 2.6 Consultation . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE III. REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of
Wavetek and WG. . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.2. Representations and Warranties of
WG Stockholders . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.3. Representations and Warranties of
Wavetek Stockholders. . . . . . . . . . . . . . . . . . . 19
ARTICLE IV. COVENANTS
SECTION 4.1. Acquisition Proposals . . . . . . . . . . . . . . . . . . 20
SECTION 4.2. Wavetek Stock Options . . . . . . . . . . . . . . . . . . 20
SECTION 4.3. Access and Information. . . . . . . . . . . . . . . . . . 21
SECTION 4.4. Certain Filings, Consents and
Arrangements. . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.5. Additional Agreements . . . . . . . . . . . . . . . . . . 22
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SECTION 4.6. Publicity . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 4.7. U.S. Tax Consequence. . . . . . . . . . . . . . . . . . . 22
SECTION 4.8. Board of Directors of Wavetek . . . . . . . . . . . . . . 22
SECTION 4.9. Switching Test Solutions AG . . . . . . . . . . . . . . . 23
SECTION 4.10. Formation of WG Holding Company . . . . . . . . . . . . . 23
SECTION 4.11. Opinion . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE V. CONDITIONS TO CONSUMMATION
SECTION 5.1. Conditions to All Parties' Obligations. . . . . . . . . . 23
ARTICLE VI. TERMINATION
SECTION 6.1. Termination . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 6.2. Effect of Termination . . . . . . . . . . . . . . . . . . 25
ARTICLE VII. EFFECTIVE DATE AND EFFECTIVE TIME
SECTION 7.1. Effective Date and Effective Time . . . . . . . . . . . . 25
ARTICLE VIII. OTHER MATTERS
SECTION 8.1. Certain Definitions; Interpretation . . . . . . . . . . . 26
SECTION 8.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 8.3. Severability. . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 8.4. Entire Agreement; Etc.. . . . . . . . . . . . . . . . . . 28
SECTION 8.5. Survival. . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 8.6. Expenses. . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 8.7. Amendments and Waiver . . . . . . . . . . . . . . . . . . 29
SECTION 8.8. Consent to Specific Performance . . . . . . . . . . . . . 29
SECTION 8.9. Assignment. . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 8.10. Governing Law . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 8.11. Jurisdiction; Waivers . . . . . . . . . . . . . . . . . . 30
SECTION 8.12. WAIVERS OF JURY TRIAL . . . . . . . . . . . . . . . . . . 30
SECTION 8.13. Remedies. . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 8.14. Facsimile Signature; Counterparts . . . . . . . . . . . . 30
SECTION 8.15. Binding Agreement . . . . . . . . . . . . . . . . . . . . 31
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LIST OF ANNEXES
Annex 1 -- WG Stockholder Information (Section 1.1)
Annex 2 -- Form of Notarial Deed (Section 1.2(a))
Annex 3 -- Wavetek Rights (Section 3.1(c)(1))
Annex 4 -- WG Rights (Section 3.1(c)(1))
Annex 5 -- Subsidiaries of WG (Section 3.1(c)(3))
Annex 6 -- Subsidiaries of Wavetek (Section 3.1(c)(3))
Annex 7 -- Taxes (Section 3.1(c)(7))
Annex 8 -- Wavetek Stockholder Information (Section 3.3(a))
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EXCHANGE AND MERGER AGREEMENT, dated as of June 12, 1998 (this
"Agreement"), by and among Wavetek Corporation, a Delaware corporation
("WAVETEK"), DLJ Merchant Banking Partners II, L.P. ("DLJMB"), DLJ
Diversified Partners, L.P., DLJMB Funding II, Inc., 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" and, together with the Institutional Stockholders and Xxxxxxx,
the "WAVETEK STOCKHOLDERS"), Wandel & Goltermann Management Holding GmbH, a
German limited liability company ("WG"), Xxxxxxxx Xxxxxx, a resident of the
Federal Republic of Germany, and Xxxxxx Xxxxxx, a resident of the Federal
Republic of Germany (collectively, "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 (collectively, "GOLTERMANN STOCKHOLDERS"),
Xxxxx Xxxxxx, a resident of the Federal Republic of Germany ("XXXXXX"), and
Hannover Finanz W&G Beteiligungsgesellschaft mbH ("HF"). Wandel Stockholders,
Goltermann Stockholders, Xxxxxx and HF are collectively referred to as "WG
STOCKHOLDERS".
RECITALS:
WHEREAS, Wavetek, the Wavetek Stockholders, WG and the WG
Stockholders desire to enter into the transactions described herein whereby
WG will become a wholly-owned subsidiary of Wavetek and the WG Stockholders
will become stockholders of Wavetek (the "Merger");
WHEREAS, Wavetek, Wavetek Stockholders, WG and WG Stockholders are
concurrently entering into a Stockholders Agreement, dated as of the date
hereof and effective as of the Effective Time (the "Stockholders Agreement"),
setting forth
the matters relating to governance and stockholders' rights subsequent to the
Effective Time (as defined in Section 7.1);
WHEREAS, Wavetek and WG are entering into a side letter, dated as
of the date hereof (the "Side Letter"), setting forth certain additional
agreements;
WHEREAS, it is the intention of the parties to this Agreement that
the Merger (i) for federal income tax purposes shall qualify as an asset
purchase within the meaning of Section 338 of the Internal Revenue Code of
1986, as amended (the "Code") and permit an election to step up to fair
market value the U.S. tax basis of such purchase and (ii) for accounting
purposes shall qualify for treatment as a "purchase"; and
WHEREAS, the Board of Directors of Wavetek, the Supervisory Board
of WG, the Wavetek Stockholders and the WG Stockholders have duly approved
this Agreement and have duly authorized its execution and delivery.
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
ARTICLE I. THE EXCHANGE AND MERGER
SECTION 1.1. STRUCTURE OF THE EXCHANGE AND MERGER.
(a) Subject to the terms and conditions hereof,
(i) Immediately prior to the Effective Time, each WG Stockholder
shall transfer and assign to WG Holding (defined below) (free and
clear of all liabilities, liens, claims, pledges, security interests,
charges or encumbrances, restrictions, title retention agreements,
proxies or other voting arrangements, rights of first refusal, tag
along or similar rights of any nature whatsoever (all of the foregoing
collectively "Liens")) all the outstanding share capital of WG ("WG
Interests"), with the right to all dividends not distributed prior to
September 30, 1998, but without prejudice to Section 2.2(b), in
exchange for all of the outstanding shares of common stock of a
newly-formed corporation incorporated under the laws of
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the State of Delaware ("WG Holding"), whereupon WG Holding shall
become the owner of 100% of the WG Interests (the "Exchange").
(ii) At the Effective Time, WG Holding shall merge with and into
Wavetek, with Wavetek as the surviving corporation. At the Effective
Time, the certificate of incorporation and by-laws of Wavetek shall be
amended and restated as contemplated by the Stockholders Agreement and
the directors of Wavetek shall be those contemplated by the
Stockholders Agreement. By virtue of the Merger, automatically and
without any action on the part of the holders thereof, the shares of
common stock of WG Holding (each, a "WG Holding Interest") outstanding
at the Effective Time shall become and be converted into shares of
Wavetek Common Stock as described herein. In the Merger, each WG
Stockholder shall receive the number of shares of Wavetek Common Stock
set forth opposite the name of such WG Stockholder on Annex 1 and the
aggregate number of shares of Wavetek Common Stock issued will be
8,317,464.
(b) Wavetek and WG may at any time prior to the Effective Time change
the structure of the Exchange and Merger if and to the extent they deem
such change to be necessary, appropriate or desirable; provided, however,
that no such change shall (i) alter or change the amount of consideration
to be issued to WG Stockholders as provided for in this Agreement,
(ii) adversely affect the tax treatment to Wavetek, the Wavetek
Stockholders or the WG Stockholders as a result of the transactions
contemplated hereby or (iii) materially impede or delay consummation of the
transactions contemplated by this Agreement.
(c) Although the Exchange, the Merger and the Initial Public Offering
shall occur sequentially, all such transactions shall be unwound and deemed
not to have occurred unless all such transactions are consummated at or
immediately prior to the Effective Time.
SECTION 1.2. PROCEDURES.
(a) Immediately prior to the Effective Time, WG Holding, on the one
hand, and the WG Stockholders, on the
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other hand, shall be parties to a notarial deed of a German or Swiss notary
pursuant to which all outstanding WG Interests shall be transferred to WG
Holding, such notarial deed to be substantially in the form of Annex 2
hereto.
(b) At the Effective Time, Wavetek shall deliver to each holder of a
WG Holding Interest, upon delivery of the certificates representing all the
WG Holding Interests held by such holder, a certificate or certificates
representing the number of whole shares of Wavetek Common Stock which such
holder has the right to receive in respect of the WG Holding Interests
pursuant to the provisions of Section 1.1 and this Section 1.2.
(c) From and after the Effective Time, there shall be no transfers on
the transfer records of WG Holding of any WG Holding Interests that were
outstanding immediately prior to the Effective Time.
SECTION 1.3. WG STOCKHOLDER LOANS. The WG stockholder loans (as
set forth in Annex 4) shall be repaid at the Effective Time.
SECTION 1.4. OPTION GRANTS. At the Effective Time, (i) Wavetek's
1992 Non-Qualified Employee Stock Option Plan, as amended, will be amended to
increase the number of shares of Common Stock available for option grants
thereunder from 663,160 shares to a number of shares equal to up to 10% of
the number of outstanding shares immediately following the Initial Public
Offering and (ii) Wavetek shall grant up to 558,055 options at the Effective
Time to WG employees, directors and new hires, of which 97,161 options shall
be fully vested upon their grant; provided that such vested options shall not
constitute more than 50% of the options held by any grantee and shall
represent acceleration of the earliest vesting dates; provided, however, that
the recipients of such options shall be determined by the Compensation
Committee (as defined in the Stockholders Agreement). The exercise price for
such options shall be the price per share in the Initial Public Offering.
SECTION 1.5. DISSENTERS' RIGHTS. The WG Stockholders hereby
waive any dissenters' rights they may have in connection with the Merger
pursuant to the Delaware General Corporation Law.
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ARTICLE II. CONDUCT PENDING THE EXCHANGE AND MERGER
SECTION 2.1. CONDUCT OF BUSINESS PRIOR TO THE EFFECTIVE TIME.
Except as otherwise provided for in, or contemplated by, this Agreement,
during the period from the date of this Agreement to the Effective Time, each
of Wavetek and WG shall, and shall cause its subsidiaries to, (i) conduct its
business in the usual, regular and ordinary course, (ii) use its best efforts
to maintain and preserve intact its business organization, employees and
advantageous business relationships and retain the services of its officers
and key employees and (iii) take no action which would materially and
adversely affect or delay the ability of WG or Wavetek to obtain any
necessary approvals, consents or waivers of any governmental authority
required for the transactions contemplated hereby or to perform its covenants
and agreements on a timely basis under this Agreement. Notwithstanding
anything herein to the contrary, WG shall be permitted to consummate its
acquisition of the shares of Wandel & Goltermann Technologies, Inc., a North
Carolina corporation ("WGTI"), not owned by WG, on the terms set forth in the
Agreement and Plan of Merger dated as of March 28, 1998 among WGTI, WG Merger
Corporation and WG, and shall be entitled to borrow the funds necessary to
complete such transaction, provided that the price per share paid for such
WGTI shares shall not exceed $15.90 unless and except approved in advance by
Wavetek (the "WGTI Transaction").
SECTION 2.2. FORBEARANCE BY WAVETEK AND WG. During the period
from the date of this Agreement to the Effective Time, except as otherwise
provided for in, or contemplated by, this Agreement, each of Wavetek and WG
shall not, and shall not permit any of its subsidiaries, without the prior
written consent of WG or Wavetek, as applicable, to:
(a) in the case of Wavetek, adjust, split, combine or reclassify any
capital stock (other than any stock split necessary to consummate the
transactions contemplated hereby or the Initial Public Offering) or issue
any additional shares of capital stock except pursuant to the exercise of
stock options outstanding as of the date hereof, to consummate the
transactions contemplated hereby or in the Initial Public Offering; in the
case of WG, take any action to adjust, split, combine or reclassify any
capital stock (other than any stock split necessary to consummate the
transactions contemplated hereby) or issue any additional shares of
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capital stock except pursuant to the exercise of stock options
outstanding as of the date hereof or except as contemplated by Section
4.9 hereof;
(b) make, declare or pay any dividend or make any other distribution
on, or directly or indirectly redeem, purchase or otherwise acquire, any
shares of its capital stock or any securities or obligations convertible
into or exchangeable for any shares of its capital stock, or grant any
stock appreciation rights, options or any right to acquire any shares of
its capital stock, except for dividends paid by any wholly owned subsidiary
to WG or Wavetek, as applicable, or any of its wholly owned subsidiaries;
provided, however, that (i) WG may pay a dividend to its stockholders in an
amount not to exceed DM1 million, (ii) if WG is required to pay a dividend
for fiscal 1998 to the WG Stockholders under WG's governing documents, WG
may pay such dividend in an amount up to DM3.3 million and Wavetek may pay
a dividend to the Wavetek Stockholders in an amount not to exceed 66 % of
the dividend so paid by WG and (iii) Wavetek may purchase shares of its
capital stock and options from its employees who terminate employment with
Wavetek in a manner consistent with past practice;
(c) other than in the ordinary course of business, sell, transfer,
mortgage, encumber or otherwise dispose of any of its material properties
or assets to any person other than a direct or indirect wholly owned
subsidiary;
(d) other than in the ordinary course of business, make any material
investment or purchase any material property or assets of any person other
than a wholly owned subsidiary;
(e) other than in the ordinary course of business, enter into or
terminate any material contract or agreement, or make any change in any of
its material leases or contracts, other than renewals of contracts and
leases without material adverse changes of terms or, with respect to
Wavetek, in connection with the settlement of the litigation with
Comsonics, Incorporated on terms not materially different than those set
forth in the Side Letter;
(f) increase in any manner the compensation or fringe benefits of any
of its officers or employees or
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pay any pension or retirement allowance not required by any existing plan
or agreement to any such officers or employees, or become a party to,
amend or commit itself to any pension, retirement, profit-sharing or
welfare benefit plan or agreement or employment agreement with or for the
benefit of any officer or employee, in each case other than in the
ordinary course of business, or voluntarily accelerate the vesting of any
stock options or other stock-based compensation not required by an
existing plan or agreement;
(g) modify in any material respect the manner in which it and its
subsidiaries have heretofore conducted or accounted for their business;
(h) except as contemplated by this Agreement, amend its charter or
by-laws or similar organizational documents;
(i) take, or omit to take, any action that would (i) delay or
adversely affect the ability of WG, Wavetek or any WG Stockholder to obtain
any necessary approvals, consents, clearances, actions or waivers of any
governmental authority required for the transactions contemplated hereby or
the timing thereof or (ii) adversely affect its ability to perform its
covenants and agreements on a timely basis under this Agreement; or
(j) agree to, or make any commitment to, take any of the actions
prohibited by this Section 2.2.
SECTION 2.3. FORBEARANCE BY WG STOCKHOLDERS. During the period from
the date of this Agreement to the Effective Time, except as otherwise provided
for in, or contemplated by, this Agreement, each WG Stockholder shall not,
without the prior written consent of Wavetek:
(a) sell, transfer, mortgage, encumber or otherwise dispose of any WG
Interests or WG Holding Interests owned or held by it other than in a
Permitted Transfer (as defined in the Stockholders Agreement, assuming the
Stockholders Agreement were binding at the time of such transfer) provided
that such transferee becomes a party to and agrees to be bound by each of
this Agreement and the Stockholders Agreement as a condition to such
transfer, except in connection with the Merger or the
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Exchange or take any action that would adjust, split, combine or reclassify
any capital stock of WG or issue any additional shares of capital stock of
WG except as contemplated by Section 4.9 hereof;
(b) take, or omit to take, any action that would (i) delay or
adversely affect the ability of WG, Wavetek or it to obtain any necessary
approvals, consents, clearances, actions or waivers of any governmental
authority required for the transactions contemplated hereby or the timing
thereof or (ii) adversely affect its ability to perform its covenants and
agreements on a timely basis under this Agreement; or
(c) agree to, or make any commitment to, take any of the actions
prohibited by this Section 2.3.
SECTION 2.4. FORBEARANCE BY WAVETEK STOCKHOLDERS. During the period
from the date of this Agreement to the Effective Time, except as otherwise
provided for in, or contemplated by, this Agreement, each Wavetek Stockholder
shall not, without the prior written consent of WG:
(a) sell, transfer, mortgage, encumber or otherwise dispose of any
shares of Common Stock owned or held by it other than in a Permitted
Transfer (as defined in the Stockholders Agreement), assuming that the
Stockholders Agreement were binding at the time of such transfer, provided
that such transferee becomes a party to and agrees to be bound by this
Agreement and the Stockholders Agreement as a condition to such transfer;
(b) take, or omit to take, any action that would (i) delay or
adversely affect the ability of WG, Wavetek or it to obtain any necessary
approvals, consents, clearances, actions or waivers of any governmental
authority required for the transactions contemplated hereby or the timing
thereof or (ii) adversely affect its ability to perform its covenants and
agreements on a timely basis under this Agreement; or
(c) agree to, or make any commitment to, take any of the actions
prohibited by this Section 2.4.
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SECTION 2.5. INITIAL PUBLIC OFFERING.
(a) The parties hereby agree to use their best efforts to consummate
an Initial Public Offering (as defined in the Stockholders Agreement) at or
immediately following the Effective Time. In connection therewith, as soon
as it is reasonably practicable after the date hereof, Wavetek and WG shall
commence preparation of a Registration Statement on Form S-1 (the
"Registration Statement") and file the Registration Statement with the
Securities and Exchange Commission. Each of Wavetek and WG shall use their
best efforts to have the Registration Statement declared effective under
the Securities Act of 1933 and take any action required to be taken under
applicable state securities and blue sky laws in connection with the
issuance of the Wavetek Common Stock in connection with the Initial Public
Offering. Wavetek and WG shall promptly furnish to each other all
information, and take such other actions, as may be reasonably requested in
connection with this Section 2.5. Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation ("DLJ") shall be the lead manager for the Initial Public
Offering under usual and customary arrangements and fees. DLJ and the WG
Stockholders will select co-managers for the offering and listing of shares
of Wavetek Common Stock in Europe (with a dual listing preferably on the
Frankfurt exchange) as part of the Initial Public Offering.
(b) In connection with the Initial Public Offering, the Stockholders
(as defined in the Stockholders Agreement) shall have the registration
rights set forth in Section 5.2 of the Stockholders Agreement (as if the
Stockholders Agreement were in effect prior to the Effective Time).
SECTION 2.6 CONSULTATION. During the period from the date of this
Agreement to the Effective Time, Xx. Xxxxxxx X. Xxxxxxx and Xxxxx Xxxxxx shall
consult on a weekly basis on all operating issues affecting Wavetek and WG
following the Effective Time. Any differences of opinion or disagreements
arising from such consultation shall be discussed with the Executive Committee
(as defined in the Stockholders Agreement).
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ARTICLE III. REPRESENTATIONS AND WARRANTIES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES OF WAVETEK AND WG.
(a) Wavetek represents and warrants to WG that:
(1) CORPORATE STATUS. As of the date hereof, Wavetek has been
duly incorporated and is an existing corporation in good standing
under the laws of the State of Delaware, with its principal executive
offices located at 00000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx,
Xxxxxxxxxx 00000, XXX. As of the date hereof, Wavetek has 15,000,000
authorized shares of Wavetek Common Stock, of which 4,884,860 shares
are issued and outstanding and an aggregate of 663,160 shares are
reserved for issuance pursuant to outstanding employee stock option
plans, of which 504,908 shares are subject to issuance pursuant to
outstanding employee stock option agreements.
(2) CAPITAL STOCK. All outstanding shares of capital stock of
it and its subsidiaries are duly authorized, validly issued and
outstanding, fully paid and non-assessable, and subject to no
preemptive rights (other than such rights set forth in the Prior
Agreement (as defined in the Stockholders Agreement) which have been
waived by the parties thereto).
(b) WG represents and warrants to Wavetek that:
(1) CORPORATE STATUS. As of the date hereof, WG has been duly
organized and is an existing limited liability company (GmbH) under
the laws of Germany, with its principal executive offices located at
Xxxxxxxx 0, X-00000 Xxxxxxx x.X., Xxxxxxx.
(2) WG INTERESTS. As of the date hereof, WG has a share capital
in the total amount of DM 40,000,000 which is divided into the
following WG Interests:
(i) HF with one share of nominal DM 10,940,000;
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(ii) Xx. Xxxxxxxx Xxxxxx with one share of nominal DM 5,928,400
and one share of nominal DM 899,000, total nominal DM
6,827,400;
(iii) Xxx. Xxxxxx Xxxxxx with one share of nominal DM 5,451,600
and one share of nominal DM 651,000, total nominal DM
6,102,600;
(iv) Xx. Xxxxx Xxxxxxxxxx with one share of nominal DM 3,115,200,
one share of nominal DM 1,600,000, and one share of nominal
DM 372,000 total nominal DM 5,087,200;
(v) Xx. Xxxxxxxx Xxxxxxxxxx with one share of nominal DM
6,480,000, and one share of nominal DM 775,000, in total
nominal DM 7,255,000; and
(vi) Xxx. Xxxxxx Xxxxxxxxxx with one share of nominal DM
3,384,800 and one share of nominal DM 403,000, in total
nominal DM 3,787,800.
(c) Wavetek represents and warrants to WG, and WG represents and
warrants to Wavetek, that:
(1) RIGHTS. It does not have any shares of its capital stock or
interests reserved for issuance, any outstanding option, call or
commitment relating to shares of its capital stock or interests or any
outstanding securities, obligations or agreements convertible into or
exchangeable for, or giving any person any right (including, without
limitation, pre-emptive rights) to subscribe for or acquire from it,
or cause it to register with the Securities and Exchange Commission or
any other national, state or local authority for resale any shares of
its capital stock or interests (collectively, "Rights"), except as set
forth on Annex 3 (as to Wavetek) and Annex 4 (as to WG). Annex 4
lists the principal amount, interest rate and maturity of all loans or
other debt obligations due from WG to any WG Stockholder.
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(2) AUTHORITY. Each of it and its subsidiaries has the power
and authority, and is duly qualified in all jurisdictions (except for
such qualifications the absence of which, individually or in the
aggregate, would not have a Material Adverse Effect (as defined in
Section 8.1)) where such qualification is required, to carry on its
business as it is now being conducted and to own all its material
properties and assets, and it has all federal, state, local, and
foreign governmental permits, licenses and authorizations necessary
for it to own or lease its properties and assets and to carry on its
business as it is now being conducted, except for such powers and
authorizations the absence of which, either individually or in the
aggregate, would not have a Material Adverse Effect.
(3) SUBSIDIARIES. In the case of WG, a list of its subsidiaries
is contained in Annex 5; in the case of Wavetek, a list of its
subsidiaries is contained in Annex 6; all of the shares of capital
stock of each of its subsidiaries have been duly authorized and
validly issued and are owned by it free and clear of all Liens, and
there are no Rights with respect to such capital stock, except as
listed on Annex 5 (in the case of WG) or Annex 6 (in the case of
Wavetek).
(4) APPROVALS. This Agreement has been authorized by all
necessary corporate action of it. Subject to receipt of the required
approvals, consents or waivers of governmental authorities referred to
in Section 5.1(b), this Agreement is a valid and binding agreement of
it enforceable against it in accordance with its terms, subject as to
enforcement to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(5) NO VIOLATIONS. The execution, delivery and performance of
this Agreement by it does not, and the consummation of the
transactions contemplated hereby by it will not, constitute (i) a
breach or violation of, or a default under, any
-12-
law, rule or regulation or any judgment, decree, order,
governmental permit or license, or agreement, indenture or
instrument of it or its subsidiaries or to which it or its
subsidiaries (or any of their respective properties) is subject,
which breach, violation or default would have a Material Adverse
Effect on it, or enable any person to enjoin the Exchange or (ii) a
breach or violation of, or a default under, the certificate or
articles of incorporation or by-laws of it or any of its
subsidiaries; and the consummation of the transactions contemplated
hereby will not require any approval, consent or waiver under any
such law, rule, regulation, judgment, decree, order, governmental
permit or license or the approval, consent or waiver of any other
party to any such agreement, indenture or instrument, other than
(i) the required approval, consents, waivers and administrative
actions referred to in Section 5.1(a), (ii) such approvals,
consents or waivers as are required under the federal and state
securities or "Blue Sky" laws in connection with the transactions
contemplated by this Agreement and (iii) any other approvals,
consents or waivers the absence of which, individually or in the
aggregate, would not result in a Material Adverse Effect or enable
any person to enjoin the Exchange.
(6) ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed
pursuant to this Section 3.1, since December 31, 1997, there has not
been any change in the financial condition or results of operations of
it or any of its subsidiaries which, individually or in the aggregate,
has had a Material Adverse Effect on it.
(7) TAXES. Except as otherwise would not have a Material
Adverse Effect, all federal, state, local, and foreign tax returns
required to be filed by or on behalf of it or any of its subsidiaries
have been timely filed or requests for extensions have been timely
filed and any such extension shall have been granted and not have
expired. All taxes shown on returns filed by or on behalf of it or
any of its subsidiaries have been paid in full or adequate provision
has been made for any such taxes on its balance sheet as of December
31, 1997 (in
-13-
the case of Wavetek, in accordance with United States generally
accepted accounting principles ("US GAAP"), and in the case of WG,
in accordance with German generally accepted accounting
principles). As of the date of this Agreement, there are no
assessments or notices of deficiency or proposed assessments with
respect to any taxes of it or any of its subsidiaries other than as
set forth in Annex 7 or that, if resolved in a manner adverse to
it, would result in a determination that would have a Material
Adverse Effect on it. Except as otherwise would not have a
Material Adverse Effect, it has not executed an extension or waiver
of any statute of limitations on the assessment or collection of
any tax due that is currently in effect.
(8) ABSENCE OF CLAIMS. Except as disclosed in Wavetek's filings
with the Securities and Exchange Commission or in writing to WG or
Wavetek, as applicable, and except for the pending WGTI stockholder
litigation, no material litigation, proceeding or controversy before
any court or governmental agency is pending, and there is no pending
claim, action or proceeding against it or any of its subsidiaries,
which is reasonably likely, individually or in the aggregate, to have
a Material Adverse Effect on it or to materially hinder or delay
consummation of the transactions contemplated hereby.
(9) ABSENCE OF REGULATORY ACTIONS. Neither it nor any of its
subsidiaries is a party to any cease and desist order, written
agreement or memorandum of understanding with, or a party to any
commitment letter or similar undertaking to, or is subject to any
order or directive by, or is a recipient of any extraordinary
supervisory letter from, or has adopted any board resolutions at the
request of, any relevant federal, state or local governmental
authorities.
(10) TITLE TO ASSETS. Each of it and its subsidiaries has good
and marketable title to its properties and assets reflected as owned
by it on its September 30, 1997 balance sheet, and valid leasehold
interests in all property leased by it
-14-
and its subsidiaries, except for such dispositions in the ordinary
course of business or defects in title which would not,
individually or in the aggregate, have a Material Adverse Effect.
(11) KNOWLEDGE AS TO CONDITIONS. As of the date hereof, it
knows of no reason why the approvals, consents and waivers of
governmental authorities referred to in Section 5.1(a) will not be
obtained without the imposition of any condition of the type referred
to in the provisos thereto.
(12) WAVETEK COMMON STOCK. In the case of Wavetek, the shares
of Wavetek Common Stock to be issued pursuant to this Agreement, when
issued in accordance with the terms of this Agreement, will be duly
authorized, validly issued, fully paid and non-assessable and subject
to no preemptive rights (other than, in the case of Wavetek, such
rights set forth in the Prior Agreement which have been waived by the
parties thereto).
(13) FEES. Other than financial advisory services performed for
Wavetek by Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation and for
WG by Broadview Associates, neither it nor any of its subsidiaries,
nor any of their respective officers, directors, employees or agents
has employed any broker or finder or incurred any liability for any
financial advisory fees, brokerage fees, commissions, or finder's
fees, and no broker or finder has acted directly or indirectly for it
or any of its subsidiaries, in connection with this Agreement or the
transactions contemplated hereby.
(14) ANTITAKEOVER PROVISIONS INAPPLICABLE. No antitakeover or
similar law applies to this Agreement or the Exchange or the
transactions contemplated hereby.
(15) ENVIRONMENTAL MATTERS. Except for such matters that, alone
or in the aggregate, would not have a Material Adverse Effect, to the
best knowledge of its senior management (without inquiry), (i) it and
its subsidiaries have complied with all applicable Environmental Laws;
(ii) the properties presently or formerly owned or operated
-15-
by it or its subsidiaries (including, without limitation, soil,
groundwater or surface water on, under or adjacent to the
properties, and buildings thereon as well as properties held in an
agency or fiduciary capacity) (the "Properties") do not contain any
Hazardous Substance (as hereinafter defined) other than as
permitted under applicable Environmental Law, do not contain, and
have not contained, any underground storage tanks, do not have any
asbestos present (and have not had any asbestos removed therefrom)
and have not been used as a sanitary landfill or hazardous waste
disposal site (PROVIDED, HOWEVER, that with respect to Properties
owned or operated by it at any time, such representation is limited
to the period after the time of acquisition of such Property by it
or one of its subsidiaries and prior to the disposition of such
Properties by it or one of its subsidiaries); (iii) neither it nor
any of its subsidiaries has received any notices, demand letters or
request for information from any governmental entity or any third
party that it or any of its subsidiaries may be in violation of, or
liable under, any Environmental Law and none of it, its
subsidiaries or the Properties are subject to any court order,
administrative order or decree arising under any Environmental Law;
and (iv) no Hazardous Substance has been disposed of, transferred,
released or transported from any of the Properties during the time
such Property was owned or operated by it or one of its
subsidiaries, other than as permitted under applicable
Environmental Law.
"Environmental Law" means (i) any federal, state, foreign or
local law, statute, ordinance, rule, regulation, code, license,
permit, authorization, approval, consent, common law, legal doctrine,
order, judgment, decree, injunction, requirement or agreement with any
government entity, (x) relating to the protection, preservation or
restoration of the environment (including, without limitation, air,
water vapor, surface water, groundwater, drinking water supply,
surface land, subsurface land, plant and animal life or any other
natural resource), or to human health or safety, or (y) the exposure
to, or the
-16-
use, storage, recycling, treatment, generation, transformation,
processing, handling, labeling, production, release or disposal of
Hazardous Substances, in each case as amended and as now in effect.
"Hazardous Substance" means any substance presently listed,
defined, designated or classified as hazardous, toxic, radioactive or
dangerous, or otherwise regulated, under any Environmental Law,
whether by type or by quantity, including any substance containing any
such substance as a component.
(16) FINANCIAL STATEMENTS; INFORMATION. With respect to
Wavetek, the financial statements contained in its filings with the
Securities and Exchange Commission (the "Commission") have been
prepared in accordance with US GAAP, applied on a consistent basis for
all periods presented. With respect to WG, the financial statements
provided to Wavetek have been prepared in accordance with German
generally accepted accounting principles, applied on a consistent
basis for all periods presented. With respect to Wavetek, the filings
made by it with the Commission, and with respect to WG, the
information delivered by it to Wavetek, as of the respective date of
such filing or information, did not contain a misstatement of, or omit
to state, any material fact necessary to make the information
contained therein, in the light of the circumstances under which it
was made, not misleading.
SECTION 3.2. REPRESENTATIONS AND WARRANTIES OF WG STOCKHOLDERS. Each
WG Stockholder represents and warrants that:
(a) CAPITAL STOCK. Annex 1 accurately sets forth the name, address
and WG Interests held by it; all such WG Interests are beneficially owned
and held by it free and clear of all Liens, except as set forth on Annex 1.
(b) APPROVALS. This Agreement is a valid and binding agreement of it
enforceable against it in accordance with its terms, subject as to
enforcement to bankruptcy, insolvency, fraudulent transfer, reorgani-
-17-
zation, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles. No
approval of any spouse of such WG Stockholder or any other person is
required for the performance of its obligations hereunder, except for
such approvals as have been obtained by such WG Stockholder.
(c) NO VIOLATIONS. To its knowledge, the execution, delivery and
performance of this Agreement by it does not, and the consummation of the
transactions contemplated hereby by it will not, constitute a breach or
violation of, or a default under, any law, rule or regulation or any
judgment, decree, order, governmental permit or license, or agreement,
indenture or instrument of it or to which it (or any its properties) is
subject, which breach, violation or default would have a Material Adverse
Effect on WG, or enable any person to enjoin the Exchange and, in the case
of a WG Stockholder that is not a natural person, constitute a breach or
violation of, or a default under, the charter, by-laws or other governing
document of it; and the consummation of the transactions contemplated
hereby will not require any approval, consent or waiver under any such
law, rule, regulation, judgment, decree, order, governmental permit or
license or the approval, consent or waiver of any other party to any such
agreement, indenture or instrument, other than (i) the required approval,
consents and waivers of third parties or governmental authorities referred
to in or contemplated by Section 5.1, (ii) such approvals, consents or
waivers as are required under the federal and state securities or "Blue
Sky" laws in connection with the transactions contemplated by this
Agreement and (iii) any other approvals, consents or waivers the absence of
which, individually or in the aggregate, would not result in a Material
Adverse Effect on WG or enable any person to enjoin the Exchange.
(d) KNOWLEDGE AS TO CONDITIONS. As of the date hereof, it knows of
no reason why the approvals, consents and waivers of third parties and
governmental authorities referred to in Section 5.1 and will not be
obtained without the imposition of any condition of the type referred to in
the proviso thereto.
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SECTION 3.3. REPRESENTATIONS AND WARRANTIES OF WAVETEK STOCKHOLDERS.
Each Wavetek Stockholder represents and warrants that:
(a) CAPITAL STOCK. Annex 8 accurately sets forth the name, address
and number of shares of Common Stock held by it; all such shares of Common
Stock are beneficially owned and held by it free and clear of all Liens,
except as set forth on Annex 8.
(b) APPROVALS. This Agreement is a valid and binding Agreement of it
enforceable against it in accordance with its terms, subject as to
enforcement to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles. No approval
of any spouse of such Wavetek Stockholder or any other person is required
for the performance of its obligations hereunder, except for such approvals
as have been obtained by such Wavetek Stockholder.
(c) NO VIOLATIONS. The execution, delivery and performance of this
Agreement by it does not, and the consummation of the transactions
contemplated hereby by it will not, constitute a breach or violation of, or
a default under, any law, rule or regulation or any judgment, decree,
order, governmental permit or license, or agreement, indenture or
instrument of it or to which it (or any its properties) is subject, which
breach, violation or default would have a Material Adverse Effect on
Wavetek, or enable any person to enjoin the Exchange and, in the case of a
Wavetek Stockholder that is not a natural person, constitute a breach or
violation of, or a default under, the charter, by-laws or other governing
document of it; and the consummation of the transactions contemplated
hereby will not require any approval, consent or waiver under any such law,
rule, regulation, judgment, decree, order, governmental permit or license
or the approval, consent or waiver of any other party to any such
agreement, indenture or instrument, other than (i) the required approval,
consents and waivers of third parties or governmental authorities referred
to in or contemplated by Section 5.1, (ii) such approvals, consents or
waivers as are required under the federal and state securities or "Blue
Sky" laws in connection with the transactions contemplated by this
Agreement and
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(iii) any other approvals, consents or waivers the absence of which,
individually or in the aggregate, would not result in a Material Adverse
Effect or enable any person to enjoin the Exchange.
(d) KNOWLEDGE AS TO CONDITIONS. As of the date hereof, it knows of
no reason why the approvals, consents and waivers of third parties and
governmental authorities referred to in Section 5.1 will not be obtained
without the imposition of any condition of the type referred to in the
proviso thereto.
ARTICLE IV. COVENANTS
SECTION 4.1. ACQUISITION PROPOSALS. Except for the WGTI Transaction,
between the date hereof and the Effective Time, each of Wavetek and WG agrees
that neither it nor any of its subsidiaries nor any of the respective officers
and directors of such company or its subsidiaries shall, and each of Wavetek and
WG shall direct and use its best efforts to cause its employees, agents and
representatives (including, without limitation, any investment banker, attorney
or accountant retained by it or any of its subsidiaries) not to, and each of the
WG Stockholders agrees that it shall not, initiate, solicit or encourage,
directly or indirectly, any inquiries or the making of any proposal or offer
(including, without limitation, any proposal or offer to stockholders) with
respect to a merger, consolidation or similar transaction involving, or any
purchase of all or any significant portion of the assets or any equity
securities of, Wavetek, WG or any of their respective subsidiaries (any such
proposal or offer being hereinafter referred to as an "Acquisition Proposal")
or, except as may be legally required for the discharge by the board of
directors of its fiduciary duties after receiving the advice of counsel, engage
in any negotiations concerning, or provide any confidential information or data
to, or have any discussions with, any person relating to an Acquisition
Proposal, or otherwise facilitate any effort or attempt to make or implement an
Acquisition Proposal.
SECTION 4.2. WAVETEK STOCK OPTIONS. Immediately prior to the
Effective Time, Wavetek hereby agrees to reserve for issuance pursuant to stock
options additional shares of Wavetek Common Stock for stock option compensation
pursuant to its 1992 non-qualified Employee Stock Option Plan up to the amount
contemplated by Section 1.4 hereof.
-20-
SECTION 4.3. ACCESS AND INFORMATION. Each of Wavetek and WG shall
(and shall cause each of its subsidiaries to) afford to the other parties and
their representatives (including, without limitation, directors, officers and
employees of the parties and their affiliates, and counsel, accountants and
other professionals retained) such access during normal business hours
throughout the period prior to the Effective Time to the books, records
(including, without limitation, tax returns and work papers of independent
auditors), properties, personnel and to such other information as any party
may reasonably request, including with respect to the matters set forth in
the Side Letter. Each party will not, and will cause its representatives not
to, use any information obtained pursuant to this Section 4.3 for any purpose
unrelated to the consummation of the transactions contemplated by this
Agreement. Subject to the requirements of law, each party will keep
confidential, and will cause its representatives to keep confidential, all
information and documents obtained pursuant to this Section 4.3 unless such
information (i) was already known to such party (and not subject to a
separate confidentiality agreement), (ii) becomes available to such party
from other sources not known by such party to be bound by a confidentiality
obligation, (iii) is disclosed with the prior written approval of the party
to which such information pertains, (iv) is or becomes readily ascertainable
from published information or trade sources or (v) is necessary or advisable
in connection with the Initial Public Offering or in other filings of Wavetek
with the Securities and Exchange Commission. In the event that this
Agreement is terminated or the transactions contemplated by this Agreement
shall otherwise fail to be consummated, each party shall promptly cause all
copies of documents or extracts thereof containing information and data as to
another party hereto to be destroyed or returned to the party which furnished
the same.
SECTION 4.4. CERTAIN FILINGS, CONSENTS AND ARRANGEMENTS. Wavetek, WG
and each WG Stockholder shall (a) as soon as practicable make any filings and
applications required to be filed in order to obtain all approvals, consents and
waivers of governmental authorities necessary or appropriate for the
consummation of the transactions contemplated hereby, (b) cooperate with one
another (i) in promptly determining what filings are required to be made or
approvals, consents or waivers are required to be obtained under any relevant
federal, state or foreign law or regulation and (ii) in promptly making any such
filings, furnishing information
-21-
required in connection therewith and seeking timely to obtain any such
approvals, consents or waivers (which shall include providing the other
interested parties with draft copies of such filings sufficiently in advance
of filing to enable such party a reasonable opportunity to comment on them)
and (c) deliver to the other interested parties copies of the publicly
available portions of all such filings and applications promptly after they
are filed.
SECTION 4.5. ADDITIONAL AGREEMENTS. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to use all
reasonable efforts to take promptly, or cause to be taken promptly, all
actions and to do promptly, or cause to be done promptly, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement
as promptly as practicable, including (i) using efforts to obtain all
necessary actions or non-actions, extensions, waivers, consents and approvals
from all applicable governmental entities, effecting all necessary
registrations, applications and filings (including, without limitation,
filings under any applicable state securities laws) and (ii) obtaining any
required contractual consents and regulatory approvals.
SECTION 4.6. PUBLICITY. The initial press release announcing this
Agreement shall be a joint press release and thereafter and prior to the
Effective Time, WG and Wavetek shall consult with each other in issuing any
press releases or otherwise making public statements with respect to the
transactions contemplated hereby and in making any filings with any
governmental entity or with any national securities exchange with respect
thereto.
SECTION 4.7. U.S. TAX CONSEQUENCE. Neither Wavetek nor WG shall
take or cause to be taken any action, whether before or after the Effective
Time, which would disqualify the Exchange for a step up in the U.S. tax basis
of the Exchange within the meaning of Section 338 of the Code.
SECTION 4.8. BOARD OF DIRECTORS OF WAVETEK. As of the Effective
Time, the composition of the Board of Directors of Wavetek, the quorum
required for action by such Board, the voting requirements for such Board and
the committees thereof shall be as set forth in the Stockholders Agreement.
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SECTION 4.9. SWITCHING TEST SOLUTIONS AG. Prior to the Effective
Time, the WG Stockholders (other than HF) shall deliver to Wavetek or WG the
10% of the capital stock of Switching Test Solutions AG not currently owned
by WG.
SECTION 4.10. FORMATION OF WG HOLDING COMPANY. Prior to the
Effective Time, WG shall cause WG Holding to be incorporated and WG Holding
and the WG Stockholders shall have consummated the Exchange set forth in
Section 1.1(a).
SECTION 4.11. OPINION. WG shall receive and be entitled to rely
upon the opinion of Xxxxxxxx & Xxxxxxxx delivered to the Trustee in
connection with the Merger under the Indenture, dated as of June 10, 1997,
among the Company, the Subsidiary Guarantors named therein and The Bank of
New York, as trustee, which opinion will include an opinion that the
transactions contemplated by this Agreement do not result in a breach of or
default under such Indenture.
ARTICLE V. CONDITIONS TO CONSUMMATION
SECTION 5.1. CONDITIONS TO ALL PARTIES' OBLIGATIONS. The
respective obligations of Wavetek, WG and each WG Stockholder to effect the
Exchange or any other transaction contemplated by this Agreement shall be
subject to the satisfaction or waiver prior to the Effective Time of the
following conditions:
(a) Wavetek shall have procured the required approval, consent,
waiver or other administrative action pursuant to the Wavetek Credit
Agreement; WG shall have procured the required approval, consent, waiver or
other administrative action required pursuant to the WG Credit Agreement;
Wavetek, WG and each WG Stockholder shall have procured the required
approval, consent, waiver or other administrative action with respect to
the Agreement and the transactions contemplated hereby pursuant to the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and all
applicable statutory waiting periods shall have expired or have been
terminated; and Wavetek, WG and each WG Stockholder shall have procured all
other regulatory approvals, consents, waivers or administrative actions of
governmental authorities or other persons that are necessary to the
consummation of the transactions contemplated by this Agreement; PROVIDED,
HOWEVER, that no approval, consent, waiver or administrative action
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referred to in this Section 5.1(a) shall be deemed to have been received if
it shall include any condition or requirement that would (i) result in a
Material Adverse Effect on Wavetek or WG (on a combined basis giving effect
to the Exchange and the other transactions contemplated by this Agreement)
or (ii) so materially and adversely affect the economic or business
benefits of the Exchange that Wavetek or WG would not have entered into
this Agreement had such conditions or requirements been known at the date
hereof.
(b) All other requirements prescribed by law which are necessary to
the consummation of the transactions contemplated by this Agreement shall
have been satisfied.
(c) No party hereto shall be subject to any order, decree or
injunction of a court or agency of competent jurisdiction which enjoins or
prohibits the consummation of the Exchange or any other transaction
contemplated by this Agreement. No litigation or proceeding shall be
pending against the WG Stockholders, the Wavetek Stockholders, Wavetek or
WG or any of their subsidiaries brought by any governmental agency seeking
to prevent consummation of the transactions contemplated hereby.
(d) No statute, rule, regulation, order, injunction or decree shall
have been enacted, entered, promulgated or enforced by any governmental
authority which prohibits, restricts or makes illegal consummation of the
Exchange or any other transaction contemplated by this Agreement.
(e) The Certificate of Incorporation and Bylaws of Wavetek shall have
been amended as contemplated by the Stockholders Agreement.
(f) The Initial Public Offering shall occur at the Effective Time.
(g) WG shall have received the opinion described in Section 4.11
hereto.
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ARTICLE VI. TERMINATION
SECTION 6.1. TERMINATION. This Agreement may be terminated, and the
Exchange abandoned, prior to the Effective Date:
(a) by the mutual consent of Wavetek and WG, if the respective board
of directors or shareholder assembly of each so determines by vote of a
majority of the members of its entire board or shareholder assembly;
(b) by Wavetek or WG by written notice to the other if either (i) any
approval, consent, waiver or administrative action required to permit
consummation of the transactions contemplated hereby shall have been denied
and such denial shall no longer be subject to any possible appeal, petition
or repetition or hearing or rehearing or other administrative or judicial
action or (ii) any governmental authority of competent jurisdiction shall
have issued a final, unappealable order enjoining or otherwise prohibiting
consummation of the transactions contemplated by this Agreement; or
(c) by Wavetek or WG, if its board of directors or shareholder
assembly so determines, in the event that the Exchange is not consummated
by December 31, 1998.
SECTION 6.2. EFFECT OF TERMINATION. In the event of the termination
of this Agreement by either Wavetek or WG, as provided herein, this Agreement
shall thereafter become void and there shall be no liability on the part of any
party hereto or their respective officers or directors, except that any such
termination shall be without prejudice to the rights of any party hereto
contained in this Agreement and except as set forth in Section 8.5.
ARTICLE VII. EFFECTIVE DATE AND EFFECTIVE TIME
SECTION 7.1. EFFECTIVE DATE AND EFFECTIVE TIME. At or immediately
prior to the consummation of the Initial Public Offering, or on such earlier or
later date as may be agreed by Wavetek and WG, a closing of the Exchange, the
Merger and the transactions contemplated hereby shall be held simultaneously at
the offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx Xxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx 00000 and Xxxxxxxxxx 00-00, 00000 Xxxxxxxxx xx Xxxx, Xxxxxxx at 7:00
a.m., Los Angeles
-25-
time, 4:00 p.m., Frankfurt time, or such other locations as may be agreed by
Wavetek and WG, whereupon the deliveries and proceedings contemplated hereby,
including, without limitation, those matters described in Article I hereof,
shall be effected. The date of such closing is herein called the "Effective
Date". The Merger shall become effective when the Certificate of Merger with
respect to the Merger is filed in accordance with the General Corporation Law
of the State of Delaware, or at such later time as is specified in the
Certificate of Merger (the "Effective Time").
ARTICLE VIII. OTHER MATTERS
SECTION 8.1. CERTAIN DEFINITIONS; INTERPRETATION. As used in this
Agreement, the following terms shall have the meanings indicated:
"material" means material to Wavetek or WG (as the case may be) and
its respective subsidiaries, taken as a whole.
"Material Adverse Effect," with respect to a person, means any
condition, event, change or occurrence that is reasonably likely to have a
material adverse effect upon (A) the financial condition, business or
results of operations of such person and its subsidiaries, taken as a whole
(other than as a result of changes in laws or regulations or accounting
rules of general applicability or interpretations thereof), or (B) the
ability of such person to perform its obligations under, and to consummate
the transactions contemplated by, this Agreement.
"person" includes an individual, corporation, partnership, limited
liability company, association, trust or unincorporated organization.
"Subsidiary," with respect to a person, means any other person
controlled by such person.
"Wavetek Credit Agreement" means the Credit Agreement, dated as of
June 11, 1997, among Wavetek, the lenders listed therein, DLJ Capital
Funding, Inc., as Syndication Agent, and Fleet National Bank, as
Administrative Agent.
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"WG Credit Agreement" means the Bank Pool Agreement (Pool Vertrag),
dated June 10, 1997, among the Company, WGR and Commerzbank AG (as agent),
Baden-Warttenbergishe Bank AG, Deutsche Bank AG, Kreissparkasse Reutlingen,
Landesgirokasse, Stuttgart and Stuttgarter Bank AG.
When a reference is made in this Agreement to Sections or Annexes, such
reference shall be to a Section of, or Annex to, this Agreement unless otherwise
indicated. The table of contents, list of annexes and headings contained in
this Agreement are for ease of reference only and shall not affect the meaning
or interpretation of this Agreement. Whenever the words "include", "includes",
or "including" are used in this Agreement, they shall be deemed to be followed
by the words "without limitation". Any singular term in this Agreement shall be
deemed to include the plural, and any plural term the singular.
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.
SECTION 8.2. NOTICES. All notices, requests, acknowledgments and
other communications hereunder to a party shall be in writing and shall be
deemed to have been duly given when delivered by hand, telecopy, or telegram
(confirmed in writing) to such party at its address set forth below or such
other address as such party may specify by notice to the other party hereto.
If to Wavetek, to:
Wavetek Corporation
00000 Xx Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Chief Executive Officer
With copies to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
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If to WG, to:
Wandel & Goltermann
Xxxxxxxx 0
X-00000 Xxxxxxx x.X.
Xxxxxxx
Telecopy No.: (000) 00-0000-00000
Attention: Chief Executive Officer
With copies to:
Xxxxxx & Xxxxxx
2700 International Tower, Peachtree Center
000 Xxxxxxxxx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxx X. Xxxx
If to any WG Stockholders, at the address indicated on Annex 2 hereto.
SECTION 8.3. SEVERABILITY. In the event any provision hereof is held
or rendered void or unenforceable by any court or other legal authority, then
such provisions shall be severable and shall not affect the remaining provisions
hereof.
SECTION 8.4. ENTIRE AGREEMENT; ETC. This Agreement, the Stockholders
Agreement and the Side Letter represents the entire understanding of the parties
hereto with reference to the transactions contemplated hereby and supersedes any
and all other oral or written agreements heretofore made between the parties
hereto with respect to the subject matter contained herein. All terms and
provisions of this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
Nothing in this Agreement is intended to confer upon any other person any rights
or remedies of any nature whatsoever under or by reason of this Agreement.
SECTION 8.5. SURVIVAL. Only those agreements and covenants of the
parties that are applicable in whole or in part after the Effective Time
(specifically, Sections 1.3, 4.2, 4.3, 4.5, 4.7, 4.9, 6.2 and Article VIII
hereof and the Stockholders Agreement) shall survive the Effective Time. All
other agreements and covenants shall not survive the Effective Time. All
representations and warranties shall not survive
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the date of this Agreement. If this Agreement shall be terminated, the
agreements of the parties in Sections 4.3 (other than the first sentence
thereof) and 8.6 shall survive such termination.
SECTION 8.6. EXPENSES. The fees and expenses of the German notary
incurred in connection with the preparation, execution, delivery and
notarization of the notarial deed pursuant to Section 1.2(a) hereof shall be
borne by Wavetek. All expenses incurred by a party in connection with the
negotiation, preparation, performance and enforcement of this Agreement shall
be borne by such party. The filing fees associated with the filing of all
pre-merger notifications of the Exchange and Merger pursuant to The
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the
filings with the German Cartel Office, including filings made by any Wavetek
Stockholder or WG Stockholder, and all other out-of-pocket expenses incurred
in connection with the consummation of the Initial Public Offering and the
other transactions with respect to Wavetek and WG following the Effective
Time contemplated by this Agreement, including the fees and expenses of
attorneys and accountants and other persons agreed to by Wavetek and WG,
shall be shared equally by Wavetek and WG.
SECTION 8.7. AMENDMENTS AND WAIVER. Prior to the Effective Time,
any provision of this Agreement may be (i) waived by the party benefitted by
the provision or by all parties by a writing executed by an executive
officer, in the case of Wavetek or WG, or such person, in the case of a WG
Stockholder, or (ii) amended or modified at any time (including the structure
of the transaction) by an agreement in writing among the parties hereto
approved, in the case of Wavetek or WG, by their respective board of
directors or supervisory board.
SECTION 8.8. 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.
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SECTION 8.9. ASSIGNMENT. This Agreement may not be assigned by
any party hereto without the written consent of the other parties.
SECTION 8.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE,
WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PROVISIONS THEREOF.
SECTION 8.11. 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 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 8.2 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.
SECTION 8.12. WAIVERS 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.
SECTION 8.13. REMEDIES. The rights and remedies provided in this
Agreement are cumulative and nonexclusive of any other rights or remedies
available to any party hereunder, whether by contract, by law, in equity or
otherwise. No single or partial exercise of any right or remedy shall
preclude any other future exercise thereof or the exercise of any other right
or remedy.
SECTION 8.14. FACSIMILE SIGNATURE; COUNTERPARTS. This Agreement may
be executed by facsimile signature and in
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counterparts each of which shall be deemed to constitute an original, but all
of which together shall constitute one and the same instrument.
SECTION 8.15. 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Exchange
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
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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
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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
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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
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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
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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
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